Albert Arthur Romero, Jr. v. Nancy A. Berryhill, No. 2:2017cv08459 - Document 21 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g).(See document for complete details) (afe)
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Albert Arthur Romero, Jr. v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION 11 12 ALBERT ARTHUR ROMERO, JR., 13 Plaintiff, 14 v. 15 NANCY A. BERRYHILL, Acting 16 Commissioner of Social 17 Security, Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 17-08459-AS MEMORANDUM OPINION AND ORDER OF REMAND 19 20 PROCEEDINGS 21 22 On November 20, 2017, Plaintiff filed a Complaint seeking review of 23 the denial of his application for Disability Insurance Benefits. 24 (Docket Entry No. 1). The parties have consented to proceed before the 25 undersigned United States Magistrate Judge. (Docket Entry Nos. 9-10, 26 27 28 19). On April 23, 2018, Defendant filed an Answer along with the Administrative Record (“AR”). (Docket Entry Nos. 13-14). On May 29, 2018, Plaintiff filed a Memorandum in Support of Plaintiff’s Complaint 1 Dockets.Justia.com 1 (“Plaintiff’s Memorandum”). (Docket Entry No. 15). On July 3, 2018, 2 Defendant filed a Memorandum in Support of Answer (“Defendant’s 3 Answer”). 4 (Docket Entry No. 16). On July 13, 2018, Plaintiff filed a Reply to Defendant’s Answer (“Plaintiff’s Reply”). (Docket Entry No. 5 6 17). 7 The Court has taken this matter under submission without oral 8 9 argument. See C.D. Cal. L.R. 7-15; Case Management Order, filed 10 December 1, 2017 (Docket Entry No. 7). 11 12 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 13 14 On April 1, 2014, Plaintiff, formerly employed as a tractor and 15 16 roller operator for a construction company (see AR 42-45, 189), filed an 17 application for Disability Insurance Benefits, alleging an inability to 18 work because of a disabling condition since April 15, 2013. (AR 16819 69). On or about April 5, 2016, Plaintiff amended the application to 20 21 22 request a closed period of benefits from April 15, 2013 to September 1, 2015. (AR 223-28). On or about April 8, 2016, Plaintiff amended his 23 alleged disability onset date from April 15, 2013 to May 19, 2013. (AR 24 233). 25 26 On April 7, 2016, the Administrative Law Judge (“the ALJ”), Richard 27 T. Breen, heard testimony from Plaintiff (who was represented by 28 counsel) and vocational expert Gregory Jones. (See AR 36-82). 2 On May 1 25, 2016, the ALJ issued a decision denying Plaintiff’s application. 2 (See AR 20-28). After determining that Plaintiff had severe impairments 3 –- “degenerative disc disease; fracture/sprain of left ankle; and status 4 post left knee arthroscopic surgery” (AR 22) –- but did not have an 5 6 impairment or combination of impairments that met or medically equaled 7 the severity of one of the listed impairments (AR 23), the ALJ found 8 that from May 19, 2013 through September 1, 2015 Plaintiff had the 9 residual functional capacity (“RFC”)1 to perform sedentary work2 with the 10 following limitations: no work involving use of foot controls; no more 11 than occasional climbing ramps and stairs; no climbing ladders, ropes or 12 scaffolds; no more than occasional balancing, stooping, kneeling, 13 crouching or crawling; no work at unprotected heights, near moving 14 15 mechanical parts, or involving expsosure to vibrations; and the use of 16 a cane for walking distances longer than two blocks. (AR 23-27). The 17 ALJ then determined that Plaintiff was not able to perform any past 18 relevant work (AR 27), but that Plaintiff could perform jobs existing in 19 significant numbers in the national economy and was therefore not 20 disabled within the meaning of the Social Security Act. (AR 27-28). 21 22 23 24 25 26 27 28 1 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 2 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a). 3 1 The Appeals Council denied Plaintiff’s request for review of the 2 ALJ’s decision on September 21, 2017. 3 (See AR 1-5). Plaintiff now seeks judicial review of the ALJ’s decision which stands as the final 4 decision of the Commissioner. See 42 U.S.C. §§ 405(g), 1383(c). 5 6 STANDARD OF REVIEW 7 8 9 This Court reviews the Administration’s decision to determine if 10 it is free of legal error and supported by substantial evidence. 11 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). See “Substantial 12 evidence” is more than a mere scintilla, but less than a preponderance. 13 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine 14 whether substantial evidence supports a finding, “a court must consider 15 the record as a whole, weighing both evidence that supports and evidence 16 that detracts from the [Commissioner’s] conclusion.” Aukland v. 17 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation 18 omitted). As a result, “[i]f the evidence can support either affirming 19 or reversing the ALJ’s conclusion, [a court] may not substitute [its] 20 judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 21 880, 882 (9th Cir. 2006). 22 PLAINTIFF’S CONTENTIONS 23 24 25 Plaintiff alleges that the ALJ erred in (1) finding that 26 Plaintiff’s impairments did not meet Listings 1.02, 1.03, and 1.04; (2) 27 rejecting the opinions of Plaintiff’s treating physicians; (3) finding 28 Plaintiff’s testimony not credible; and (4) failing to present an 4 1 appropriate hypothetical question to the vocational expert. (See 2 Plaintiff’s Memorandum at 4-16; Plaintiff’s Reply at 2-6). 3 4 DISCUSSION 5 6 After consideration of the record as a whole, the Court finds that 7 Plaintiff’s third claim of error warrants a remand for further 8 consideration. Since the Court is remanding the matter based on 9 Plaintiff’s third claim of error, the Court will not address Plaintiff’s 10 first, second and fourth claims. 11 12 A. The ALJ Did Not Properly Reject Plaintiff’s Symptom Testimony 13 14 Plaintiff asserts that the ALJ did not provide legally and 15 factually sufficient reasons for finding that Plaintiff’s testimony 16 about his symptoms and limitations was not credible. (See Plaintiff’s 17 Memorandum at 11-15; Plaintiff’s Reply at 5). Defendant asserts that 18 the ALJ provided proper reasons for finding Plaintiff not fully 19 credible. (See Defendant’s Answer at 12-17). 20 21 1. Legal Standard 22 23 Where, as here, the ALJ finds that a claimant suffers from a 24 medically determinable physical or mental impairment that could 25 reasonably be expected to produce his alleged symptoms, the ALJ must 26 evaluate “the intensity and persistence of those symptoms to determine 27 the extent to which the symptoms limit an individual’s ability to 28 5 1 2 perform work-related activities for an adult . . . .” Soc. Sec. Ruling (“SSR”) 16-3p, 2017 WL 5180304, *3.3 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 A claimant initially must produce objective medical evidence establishing a medical impairment reasonably likely to be the cause of the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Once a claimant produces objective medical evidence of an underlying impairment that could reasonably be expected to produce the pain or other symptoms alleged, and there is no evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of his or her pain and symptoms only by articulating specific, clear and convincing reasons for doing so. Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir. 2015)(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)); see also Smolen, supra; Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Because the ALJ does not cite to any evidence in the record of malingering, the “clear and convincing” standard stated above applies. 20 21 22 23 24 Generalized, conclusory findings do not suffice. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004)(the ALJ’s credibility findings “must be sufficiently specific to allow a reviewing court to conclude the [ALJ] rejected [the] claimant’s testimony on permissible 25 26 3 SSR 16-3p, which superseded SSR 96-7p, became effective on 27 March 28, 2016 and is applicable to this case because it was in effect at the time of the Appeal Council’s September 21, 2017 denial of The regulation on evaluating a claimant’s symptoms, including pain, has not changed. See 20 C.F.R. § 404.1529. 28 Plaintiff’s request for review. 6 1 grounds and did not arbitrarily discredit the claimant’s testimony”) 2 (citation and internal quotation marks omitted); Holohan v. Massanari, 3 246 F.3d 1195, 1208 (9th Cir. 2001)(the ALJ must “specifically identify 4 the testimony [the ALJ] finds not to be credible and must explain what 5 evidence undermines the testimony”); Smolen, 80 F.3d at 1284 (“The ALJ 6 must state specifically which symptom testimony is not credible and what 7 facts in the record lead to that conclusion.”). 8 9 2. The ALJ’s Credibility Finding 10 11 12 Plaintiff made the following statements in a “Exertion Questionnaire Since Your Disability Began” dated April 21, 2014: 13 14 15 16 17 18 19 20 21 22 23 24 He lives with family in a house. (See AR 198). He is not able to carry out his normal workday because of left knee pain (a doctor has requested total knee replacement in 2014; he is waiting on the insurance company’s approval), severe lower back pain (he is waiting on the insurance company’s approval for surgery), and left ankle pain (he is having left ankle surgery in June 2014). His left knee and lower back pain limit him to walking for ten minutes, and then he has to take a break. He can lift at most two shopping bags from the market to the car and from the car to the house (two times a week). He does not climb stairs. (See AR 198-200). On an average day he does not do much because of pain in his knee, lower back, left leg, ankle and neck (moderate). He does his own grocery shopping (once or twice a week). He drives an automatic car for 45 minutes. He does not clean or do chores in his house or living area or do yard work (he cannot climb a ladder to wash windows or clean rain gutters). Prior to beoming disabled, he was able to do yard work. (See AR 198-200). 25 26 27 He is required to take a rest when his pain becomes too severe to walk or sit. He uses a knee compression brace daily and a cane almost daily. He takes Norco (3 times a day), Somas (350 mg, 1 time at night), Ambien (10 mg, 1 time at night), and Nexium (40 mg, 1 time a day). (See AR 200). 28 7 1 Plaintiff gave the following testimony at the administrative 2 hearing (see AR 38-69): 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 He is 5 feet 6 1/2 inches tall and weighs 180 pounds. He lives with his wife and his daughters who are 28 and 17 years-old. He received a GED. Prior to stopping work in 2013, he was a tractor and roller operator for Los Angeles Unified School District (“LAUSD”), using mechnical tools and hand tools to repair, remove and replace asphalt at schools. He stopped working because he had some “pay to work issues” with Human Resources and because he was not allowed to work because of the medication (Norco) he was taking for his knee and back pain (he was DOT tested as an operator). In September 2015, following a portion of time receiving workers’ compensation, he returned to work at LAUSD as a senior tractor roller operator, which requires him to supervise crews and work in the office but is less physical than his former job. (See AR 38-40, 42-48, 60). When he stopped working (after an earlier unsuccessful left knee surgery, several injections in his left knee, an earlier back injury for which he received several epidurals, a second unsuccessful left knee surgery [a partial replacement], and additional back epidurals), he was limping and suffered from constant knee pain and throbbing back pain (it “would come and go”) shooting into his left buttocks and down his leg, causing numbness in his foot. (See AR 48-50, 61-62). On May 19, 2013 (approximately one month after his alleged disability onset date), he was in a motorcycle accident (the accident was not his fault). He was feeling good that day (he had “been in a funk”), and he decided to ride for the first time since he stopped working. As a result of the accident, he suffered a left ankle fracture (he wore a cast for 8 weeks) and tore ligaments or cartilage in his right hand (he wore a cast for 6 weeks and then in June 2013 he needed to wear a wrist splint as needed; his hand has healed). (See AR 51-54, 57-59). Some time prior to the motorcycle accident, a doctor requested a spinal cord stimulator for him, because he was scared and skeptical of surgery (workers’ compensation had trouble approving the stimulator). At the time, although he was taking about four Norco pills a day, he was still having significant pain. (See AR 63-64). After the motorcyle accident through 2014, he just went to doctor appointments and physical therapy (initially 5 days a week). He drove himself to the doctors. Sometimes he could walk for a few minutes up to 10 minutes, but at different times his back was inflamed, he had a cast on his left foot, or he was on crutches. He continued to have significant pain in his left knee and back. He was not able 8 1 2 3 4 5 6 7 8 9 10 11 12 to do any house work or shopping. He night because of thoughts about the depression. The physical therapy was but not his left ankle (he experienced (See AR 56-58, 62-63, 66, 68). slept 1 to 2 hours a accident, pain, and helpful for his hand pain and discomfort). On June 3, 2014, following an MRI, he had left ankle surgery. That surgery did not go well and caused him to be sore. Popping the ankle made him feel a little better. The doctor contemplated a left ankle replacement surgery. (See AR 58, 62, 64-65). In September 2014 (at which time he had significant pain in his lumbar spine, had some atrophy in his left quadricep, and used a cane “[p]retty much all of the time”), he had a third left knee surgery (a total knee replacement). He no longer limps but still has issues because his left knee is loose; another surgery has been recommended but he does not want it. (See AR 41, 50-51, 58, 65-67). He underwent lumbar surgery a few months later. After 6 to 8 weeks of physical therapy, he felt well enough to return to work. (See AR 67-68). 13 14 After briefly summarizing Plaintiff’s testimony (see AR 23-24), and 15 after noting the limited value of the conclusions, observations and 16 findings made in workers’ compensation reports (see AR 24), the ALJ 17 stated that “[o]verall, the medical evidence partially supports the 18 claimant’s allegations (AR 24), and then proceeded to discuss the 19 medical records (see AR 24-25). After discussing the applicable 20 standards for evaluating a claimant’s testimony concerning symptoms and 21 limitations (see AR 25-26), the ALJ made the following findings: “After 22 careful consideration of the evidence, the undersigned finds that the 23 claimant’s medically determinable impairments could reasonably be 24 expected to cause the alleged symptoms; however, the claimant’s 25 statements concerning the intensity, persistence and limiting effects 26 of these symptoms are not entirely supported for the reasons explained 27 in this decision.” (AR 26). 28 9 1 After stating that “[o]verall, the medical evidence during the 2 period in question (May 19, 2013 through September 1, 2015) shows that 3 although the claimant clearly had significant debilitating orthopedic 4 conditions, he was not precluded from all work related activities,” id., 5 the ALJ stated, “Although the claimant testified he stopped working 6 because he found out he was not allowed to be on medication while at 7 work, a report dated January 15, 2015 from qualified medical evaluator 8 Andrew Rah, M.D. indicated the claimant was actually removed from his 9 position for failing a drug test, when he tested positive for alochol 10 while on the job. (Exhibit 17F, p. 42). Id. The ALJ then discussed the 11 opinions and the weight given to the opinions of two of Plaintiff’s 12 treating physicians, the consultative examiner, and the State Agency 13 medical consulants. (See AR 26-27). The ALJ finally stated: “It is 14 also noted that according to the Exertional Activities Questionnaire 15 completed by the claimant in April 2014, he was still able to drive a 16 car and go shopping despite his low back pain and left ankle/left knee 17 conditions (Exhibit 3E). The claimant also testified that he was able 18 to drive to his doctor’s appointments, and attended physical therapy.” 19 (AR 27). 20 21 3. The ALJ’s Assessment of Subjective Symptom Testimony 22 23 As set forth below, the ALJ failed to provide legally sufficient 24 reasons for discrediting Plaintiff’s testimony about the intensity, 25 persistence and limiting effects of his pain and symptoms.4 26 4 The Court will not consider reasons for discounting 27 Plaintiff’s subjective symptom testimony that were not given by the ALJ in the decision (see Defendant’s Answer at 14). See Connett v. 28 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)(“We are constrained to (continued...) 10 1 First, the ALJ failed to “specifically identify ‘what testimony is 2 not credible and what evidence undermines [Plaintiff’s] complaints.’” 3 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v. 4 Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen, 80 F.3d at 5 1284 (“The ALJ must state specifically what symptom testimony is not 6 credible and what facts in the record lead to that conclusion”). 7 8 Second, to the extent that the ALJ partially discredited 9 Plaintiff’s testimony based on an inconsistency between Plaintiff’s 10 testimony and a notation in the medical record about Plaintiff’s reason 11 for leaving work in April 2013, see Light v. Social Security Admin., 12 supra (“In weighing a claimant’s credibility, the ALJ may consider his 13 reputation for truthfulness, inconsistencies either in his testimony or 14 between his testimony and his conduct, his daily activities, his work 15 history, and testimony from physicians and third parties concerning the 16 nature, severity, and effect on the symptoms of which he complains.”); 17 20 C.F.R. § 1529(c)(4) (“We will consider whether there are any 18 inconsistencies in the evidence and the extent to which there are any 19 conflicts between your statements and the rest of the evidence . . . 20 .”); see also Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 21 2001)(finding that the ALJ properly disregarded the claimant’s 22 testimony, in part, because the claimant “stated at the administrative 23 hearing and to at least one of his doctors that he left his job because 24 25 4 (...continued) 26 review the reasons the ALJ asserts.”; citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 27 2001)); and Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)(“We review only the reasons provided by the ALJ in the disability 28 determination and may not affirm the ALJ on a ground upon which he did not rely.”). 11 1 he was laid off, rather than because he was injured”), such reason was 2 not clear and convincing. Contrary to the ALJ’s assertion, Plaintiff 3 did not testify that he left work solely because he was not allowed to 4 be on pain medication while at work. Rather, Plaintiff testified that 5 he left work because of an undisclosed non-health-related issues with 6 Human Resources as well as because of the medication (Norco) problem. 7 (See AR 46-47). The notation by the consulative examiner that Plaintiff 8 was removed from his LAUSD position for failing a drug (alcohol) test 9 (see AR 724) may or may not have been inconsistent with Plaintiff’s 10 testimony, and the ALJ did not ask Plaintiff at the hearing about that 11 notation. Moreover, any inconsistencies with respect to Plaintiff’s 12 reason for leaving work in April 2013 had no bearing on the credibility 13 of Plaintiff’s testimony concerning his inability to work on or after 14 May 19, 2013, the date of Plaintiff’s motorcyle accident. 15 16 Third, to the extent that the ALJ partially discounted Plaintiff’s 17 testimony about his symptoms and functional limitations based on his 18 ability to perform certain daily activities, such as driving, driving 19 a car to doctors’ appointments, attending physical therapy and shopping, 20 such reason was not clear and convincing. See Vertigan v. Halter, 260 21 F.3d 1044, 1050 (9th Cir. 2001)(“[T]he mere fact that a plaintiff has 22 carried on certain daily activities . . . does not in any way detract 23 from her credibility as to her overall disability. One does not need 24 to be ‘utterly incapacitated’ in order to be disabled.”); Reddick, supra 25 (“Only if the level of activity were inconsistent with the Claimant’s 26 claimed limitations would these activities have any bearing on 27 Claimant’s credibility.”). While a plaintiff’s ability to spend a 28 “substantial part” of his day engaged in pursuits involving the 12 1 performance of physical functions that are transferable to a work 2 setting may be sufficient to discredit him, here, there is no evidence 3 that Plaintiff was spending a substantial part of his day engaged in 4 these activities or that the physical demands of such tasks as driving, 5 driving a car to doctors’ appointments, attending physical therapy, and 6 shopping were transferable to a work setting. See Morgan v. Comm’r of 7 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Indeed, at the 8 hearing, the ALJ did not ask Plaintiff about the amount of time it took 9 him to drive to doctors’ appointments, to attend physical therapy and 10 to shop or how often he did these activities. Thus, Plaintiff’s 11 admitted daily activities do not constitute a legally sufficient reason 12 to reject Plaintiff’s subjective symptom testimony. 13 14 It is not clear whether the ALJ considered Plaintiff’s testimony 15 about his limited abilities to perform such daily activities (see AR 199 16 [Plaintiff testified in the April 21, 2014 Exertion Questionnaire that 17 he drove an “automatic, 45 minutes” and that he did his own grocery 18 shopping “one or two times per week”], AR 56-57 [Plaintiff testified at 19 the April 7, 2016 hearing that after May 19, 2013 and into 2014 he was 20 not helping with food shopping; and that he was driving himself to 21 doctors’ appointments during the week, but should not have been driving 22 because he was on medication]. Therefore, the degree to which Plaintiff 23 could perform such daily activities may not have been inconsistent with 24 his testimony regarding his symptoms and limitations. See Reddick, 25 supra; see also Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 26 595, 600 (9th Cir. 1999)(“If a claimant is able to spend a substantial 27 part of his day engaged in pursuits involving the performance of 28 physical functions that are transferable to a work setting, a specific 13 1 finding as to this fact may be sufficient to discredit a claimant’s 2 allegations.”). 3 4 5 of Fourth, to the extent that the ALJ also found that there was a lack objective medical evidence supporting Plaintiff’s testimony 6 concerning his symptoms and limitations, this factor cannot, by itself, 7 support an adverse finding about Plaintiff’s testimony. See Trevizo v. 8 Berryhill, 862 F.3d 987, 1001 (9th Cir. 2017)(once a claimant 9 demonstrates medical evidence of an underlying impairment, “an ALJ ‘may 10 not disregard [a claimant’s testimony] solely because it is not 11 substantiated affirmatively by objective medical evidence.’”; quoting 12 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)); Rollins 13 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Tidwell v. Apfel, 161 14 F.3d 599, 602 (9th Cir. 1998); see also SSR 16-3p, 2017 WL 5180304, *7 15 (“We must consider whether an individual’s statements about the 16 intensity, persistence, and limiting effects of his or her symptoms are 17 consistent with the medical signs and laboratory findings of record.... 18 However, we will not disregard an individual’s statements about the 19 intensity, persistence, and limiting effects of symptoms solely because 20 the objective medical evidence does not substantiate the degree of 21 impairment related-symptoms alleged by the individual.”). 22 23 Because the Court finds that the the ALJ did not discount 24 Plaintiff’s symptom testimony on legally permissible grounds, the Court 25 is unable to defer to the ALJ’s credibility determination. Cf. Flaten 26 v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1464 (9th Cir. 27 1995)(the court will defer to the ALJ’s credibility determinations when 28 14 1 they are appropriately supported in the record by specific findings 2 justifying that decision)(citations omitted). 3 4 B. Remand Is Warranted 5 6 The decision whether to remand for further proceedings or order an 7 immediate award of benefits is within the district court’s discretion. 8 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 9 useful purpose would be served by further administrative proceedings, 10 or where the record has been fully developed, it is appropriate to 11 exercise this discretion to direct an immediate award of benefits. Id. 12 at 1179 (“[T]he decision of whether to remand for further proceedings 13 turns upon the likely utility of such proceedings.”). However, where, 14 as here, the circumstances of the case suggest that further 15 administrative review could remedy the Commissioner’s errors, remand is 16 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 17 Harman v. Apfel, 211 F.3d at 1179-81. 18 19 Since the ALJ failed to properly 20 testimony, remand is appropriate. assess Plaintiff’s symptom Because outstanding issues must be 21 resolved before a determination of disability can be made, and “when the 22 record as a whole creates serious doubt as to whether the [Plaintiff] 23 is, in fact, disabled within the meaning of the Social Security Act,” 24 further administrative proceedings would serve a useful purpose and 25 remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 26 2014)(citations omitted). 27 28 15 1 ORDER 2 3 For the foregoing reasons, the decision of the Commissioner is 4 reversed, and the matter is remanded for further proceedings pursuant 5 to Sentence 4 of 42 U.S.C. § 405(g). 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: November 30, 2018 10 11 12 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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