Cathy L. Adams v. Michael J. Astrue, No. 5:2011cv01509 - Document 17 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CATHY L. ADAMS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 11-01509-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on September 27, 2011, seeking review 19 of the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for a period of disability, disability insurance 21 benefits ( DIB ), and supplemental security income ( SSI ). 22 26, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), to 23 proceed before the undersigned United States Magistrate Judge. 24 parties filed a Joint Stipulation on July 2, 2012, in which: 25 seeks an order reversing the Commissioner s decision and awarding 26 benefits 27 proceedings; and the Commissioner requests that his decision be affirmed 28 or, alternatively, remanded for further administrative proceedings. or, alternatively, remanding for further On October The plaintiff administrative 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On August 29, 2008, plaintiff filed an application for a period of 4 disability, DIB, and SSI alleging an inability to work since March 16, 5 2006, due to fibromyalgia, restless leg syndrome, irritable bowel 6 syndrome, diabetes, mood disorder, degenerative disc disease, and high 7 blood pressure. (See Administrative Record ( A.R. ) 21, 35, 53-56, 124- 8 27, 128-31, 148.) 9 care. Plaintiff has past relevant work experience in home (A.R. 148.) 10 11 The Commissioner denied plaintiff s application initially and upon 12 reconsideration. (A.R. 57-60, 64-70.) On May 3, 2010, plaintiff, who 13 was represented by counsel, appeared and testified at a hearing before 14 Administrative Law Judge Joseph D. Schloss (the ALJ ). 15 Vocational expert Sandra Fioretti also testified. 16 2010, the ALJ denied plaintiff s claim (A.R. 18-27), and the Appeals 17 Council subsequently denied plaintiff s request for review of the ALJ s 18 decision (A.R. 1-6). (Id.) (A.R. 28-52.) On June 10, That decision is now at issue in this action. 19 20 SUMMARY OF ADMINISTRATIVE DECISION 21 22 The ALJ found that plaintiff has not engaged in substantial gainful 23 activity since March 16, 2006, the alleged onset date of her disability. 24 (A.R. 20.) 25 impairments of fibromyalgia syndrome and diabetes mellitus. 1 The ALJ further determined that plaintiff has the severe (Id.) 26 27 28 1 With respect to plaintiff s other alleged impairments, the ALJ stated that, [plaintiff] s alleged mood disorder, restless leg syndrome, and irritable bowel syndrome are not documented by the 2 1 He concluded that these impairments do not meet or medically equal the 2 criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, 3 Appendix 1, the Listing of Impairments. (A.R. 21.) 4 5 After reviewing the record, the ALJ determined that plaintiff has 6 the residual functional capacity ( RFC ) to perform less than the full 7 range of medium work as defined in 20 C.F.R. §§ 404.1567(c) and 8 416.967(c). (A.R. 22.) Specifically, the ALJ found that plaintiff: 9 10 can lift and/or carry 50 pounds occasionally; push and pull 11 within these weight restrictions; stand and/or walk 6 hours in 12 an 8-hour workday; and sit 6 hours in an 8-hour workday. 13 can 14 climbing, bending, stooping, crouching, squatting, crawling, 15 and reaching. perform postural activities frequently, She including She can do fine fingering frequently. 16 17 (Id.) 18 19 The ALJ found that plaintiff is capable of performing her past 20 relevant work as a home attendant, companion, and day worker on a full 21 time basis. 22 has not been under a disability, as defined in the Social Security Act, 23 from March 16, 2006, the date her application was filed, through June 24 10, 2010, the date of his decision. (A.R. 24.) Accordingly, the ALJ concluded that plaintiff (Id.) 25 26 27 28 objective medical evidence and are found to be non-severe impairments[,] . . . [and her] hypertension is controlled with medication and is a nonsevere impairment. (A.R. 21.) The ALJ s findings in this respect are not challenged by plaintiff. 3 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 4 decision to determine whether it is free from legal error and supported 5 by substantial evidence. 6 2007). Substantial evidence is such relevant evidence as a reasonable 7 mind might accept as adequate to support a conclusion. 8 omitted). 9 necessarily a preponderance. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. Id. (citation The evidence must be more than a mere scintilla but not Connett v. Barnhart, 340 F.3d 871, 873 10 (9th Cir. 2003). While inferences from the record can constitute 11 substantial evidence, only those reasonably drawn from the record will 12 suffice. 13 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 14 15 Although this Court cannot substitute its discretion for that of 16 the Commissioner, the Court nonetheless must review the record as a 17 whole, weighing both the evidence that supports and the evidence that 18 detracts from the [Commissioner s] conclusion. 19 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 20 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 responsible for determining credibility, resolving conflicts in medical 22 testimony, and for resolving ambiguities. 23 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 24 25 The Court will uphold the Commissioner s decision when the evidence 26 is susceptible to more than one rational interpretation. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 review only the reasons stated by the ALJ in his decision and may not 4 Burch v. However, the Court may 1 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d 2 at 630; see also Connett, 340 F.3d at 874. 3 the Commissioner s decision if it is based on harmless error, which 4 exists only when it is clear from the record that an ALJ s error was 5 inconsequential to the ultimate nondisability determination. Robbins 6 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 7 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 8 at 679. The Court will not reverse 9 10 DISCUSSION 11 12 Plaintiff claims the ALJ failed to consider properly: 13 opinion of plaintiff s treating 14 (2) plaintiff s testimony. physician, Ted Lee, (1) the M.D.; and (Joint Stipulation ( Joint Stip. ) at 4.) 15 16 I. The ALJ Failed To Give Specific And Legitimate Reasons 17 Supported By Substantial Evidence For Rejecting The 18 Opinion Of Plaintiff s Treating Physician, Ted Lee, M.D.. 19 20 Plaintiff claims that the ALJ improperly rejected the opinion of 21 her treating physician, Dr. Ted Lee. 22 (Joint Stip. at 5-8.) The Court agrees. 23 24 The opinions of treating physicians are entitled to the greatest 25 weight, because the treating physician is hired to cure and has a better 26 opportunity to observe the claimant. Magallanes v. Bowen, 881 F.2d 747, 27 750 (9th Cir. 1989). 28 contradicted by another physician, it may be rejected only for clear When a treating physician s opinion is not 5 1 and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 2 1995)(as amended). 3 physician's opinion may only be rejected if the ALJ provides specific 4 and legitimate reasons supported by substantial evidence in the record. 5 Id. When contradicted by another doctor, a treating 6 7 Fibromyalgia is not well-understood and is difficult to 8 diagnose. See Jordan v. Northrop Grumman Corp. Welfare Plan, 370 F.3d 9 869, 872 (9th Cir. 2004)(noting that fibromyalgia's cause or causes are 10 unknown, there is no cure, and, of greatest importance to disability 11 law, its symptoms are entirely subjective ), overruled on other grounds 12 in Abatie v. Alta Health & Life Ins., 458 F.3d 955, 970 (2006); Sarchet 13 v. Chater, 78 F.3d 305, 306 (7th Cir. 1996)( fibromyalgia . . . [is an] 14 elusive and mysterious . . . disease ). 15 fibromyalgia] are pain all over, fatigue, disturbed sleep, stiffness, 16 and . . . multiple tender spots, more precisely 18 fixed locations on 17 the body (and the rule of thumb is that the patient must have at least 18 11 of them to be diagnosed as having fibromyalgia) that when pressed 19 firmly cause the patient to flinch. 20 853, 855 (9th Cir. 2001)(quoting Sarchet, 78 F.3d at 306.) 21 the nature of fibromyalgia, its diagnosis necessarily hinges on a 22 claimant's subjective symptoms; [t]here are no laboratory tests for the 23 presence or severity of fibromyalgia. 24 Sarchet, 78 F.3d at 306 (same). The principal symptoms [of Rollins v. Massanari, 261 F.3d Because of Jordan, 370 F.3d at 872; 25 26 On January 6, 2010, plaintiff s treating doctor, Dr. Lee, completed 27 a Medical Opinion Re: Ability To Do Work-Related Activities (Physical) 28 in which he diagnosed plaintiff with fibromyalgia, severe back pain, and 6 1 degenerative 2 plaintiff s impairments limited her ability to work. 3 opined that plaintiff was limited to, inter alia: 4 less than ten pounds on an occasional and frequent basis; sitting, 5 standing, and walking less than two hours in an eight-hour workday; 6 never twisting, crouching, climbing stairs or ladders, and occasional 7 reaching; avoid moderate exposure to extreme cold, wetness, humidity, 8 noise, and fumes; and avoid all exposure to extreme heat and hazards. 9 (A.R. 318-20.) 10 disc disease. (A.R. 318-20.) Dr. Lee noted (A.R. 320.) that He lifting and carrying Dr Lee also opined that plaintiff would miss at least three days of work per month due to her impairments. (A.R. 320.) 11 12 The ALJ gave limited weight to the limitations that Dr. Lee 13 ascribes . . . to [plaintiff] s fibromyalgia pain, because it was not 14 supported 15 including those prepared by Dr. Lee. 16 given by the ALJ for rejecting the opinion of Dr. Lee is inadequate, as 17 it fails to reach the level of specificity required for rejecting a 18 medical opinion. 19 1988)( To say that medical opinions are not supported by sufficient 20 objective findings or are contrary to the preponderant conclusions 21 mandated by the objective findings does not achieve the level of 22 specificity our prior cases have required . . . . 23 than offer his conclusions. 24 and explain why they, rather than the doctors , are correct. )(footnote 25 omitted). by the treatment records from Neighborhood (A.R. 23.) Health[c]are This sole reason Embrey v. Bowen, 849 F.2d 418, 421 22 (9th Cir. The ALJ must do more He must set forth his own interpretations 26 27 28 Further, the ALJ s assertion that Dr. Lee s medical opinion lacks support in the treatment records is incorrect. 7 Although many of the 1 treatment notes from Neighborhood Healthcare are illegible, the record 2 contains 3 fibromyalgia or some of its symptoms (i.e., pain, fatigue, stiffness, 4 and disturbed sleep). 5 Dr. Lee); A.R. 252 - 01/07/09 (fibromyalgia and insomnia noted by Dr. 6 Lee); A.R. 378 - 04/28/09 (fibromyalgia and pain noted by Gerard J. 7 Carvalho, M.D.); A.R. 401 09/08/09 (fibromyalgia, back pain, and 8 spasms noted by Dr. Lee); A.R. 400 09/22/09 (fibromyalgia noted by Dr. 9 Lee); A.R. 375 - 10/12/09 (chest pain, palpitations, back pain, joint 10 stiffness, joint swelling noted by Bryan Sauter, PA-C); A.R. 392 11 12/09/09 (fibromyalgia noted, although doctor s name is illegible); A.R. 12 365 - 01/27/10 (mild sleep apnea and fatigue noted by Robert Troell, 13 M.D.); A.R. 383-84 - 03/02/10 (chest pain palpitations, back pain, joint 14 stiffness, and joint swelling noted by Bryan Sauter, PA-C); A.R. 388 15 03/10/10 (reflecting Dr. James Y. Tsai s opinion that plaintiff s 16 [e]levated Haptoglobin [is] likely due to Fibromyalgia and IBS ).) various reports related to plaintiff s treatment for (See A.R. 251 11/17/08 (fibromyalgia noted by 17 18 Moreover, on August 24, 2010, after the ALJ rendered his decision, 19 Dr. Lee completed a Fibromyalgia Disease Residual Functional Capacity 20 Questionnaire in which he noted that he had monthly contact with 21 plaintiff.2 (A.R. 418.) He noted clinical exam consistent with 22 23 24 25 26 27 28 2 This Questionnaire was not part of the record when the ALJ rendered his decision on June 10, 2010. (See A.R. 4.) Although this Questionnaire was submitted to the Appeals Council after the ALJ had issued his decision -- and thus, contrary to plaintiff s contention, the ALJ cannot be faulted for failing to address it -- defendant does not argue that this evidence is not part of the record or that this Court cannot consider it in determining whether the ALJ's decision is supported by substantial evidence. See Ramirez v. Shalala, 8 F.3d 1449, 1451 52 (9th Cir. 1993)(reviewing court may consider evidence submitted to Appeals Council in determining whether ALJ's decision is supported by substantial evidence); Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 8 1 fibromyalgia. (Id.) Dr. Lee listed plaintiff s symptoms as including 2 multiple tender points, nonrestorative sleep, chronic fatigue, morning 3 stiffness, muscle weakness, numbness, tingling, and breathlessness. 4 (Id.) 5 (A.R. 419.) 6 certain side effects, such as nausea and sedation. 7 further indicated that during a typical workday, plaintiff frequently 8 experiences pain or other symptoms severe enough to interfere with her 9 attention and concentration. He noted that plaintiff had severe pain at all tender points. Dr. Lee also noted that plaintiff s medications cause (A.R. 420.) He (Id.) Specifically, with respect to 10 plaintiff s functional limitations, he stated that plaintiff cannot sit 11 longer than ten minutes at one time, she cannot stand for longer than 12 five minutes at one time, and she can only sit and stand/walk for less 13 than two hours in total during an eight hour working day. 14 Lee further opined that plaintiff can lift and carry less than ten 15 pounds occasionally, 16 significant limitations 17 fingering. (A.R. 421.) 18 plaintiff is likely to be absent from work more than three times a month 19 as a result of her impairments or treatment. 20 concluded that plaintiff was permanently disabled due to fibromyalgia. 21 (Id.) but never in anything doing over repetitive ten (Id.) pounds, reaching, Dr. and has handling or Significantly, Dr. Lee also opined that (A.R. 422.) Dr. Lee 22 23 24 Thus, the ALJ s conclusion that Dr. Lee s assessment is not supported by the treatment records, including those prepared by Dr. Lee 25 26 27 28 2000)(additional materials submitted to Appeals Council properly may be considered, because Appeals Council addressed them in context of denying claimant's request for review); Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996)(evidence submitted to Appeals Council is part of record on review to federal court). 9 1 himself, is undermined not only by the evidence of record before the ALJ 2 at 3 Questionnaire submitted by plaintiff to the Appeals Council after the 4 ALJ rendered his decision.3 5 whole, including the additional evidence submitted by plaintiff to the 6 Appeals Council, the ALJ s rejection of the opinion of Dr. Lee is not 7 supported by substantial evidence and free from legal error. the time of his decision but also by the August 24, 2010 Accordingly, considering the record as a 8 9 On remand, Dr. Lee s opinion must be considered in its entirety 10 with proper evaluation of his August 24, 2010 Questionnaire. 11 should the ALJ again elect to give Dr. Lee s opinion limited weight 12 and, 13 nonexamining 14 specific and legitimate reasons for doing so. instead, to State give controlling agency physician, weight then to the the ALJ Further, opinion must of a set forth 15 16 II. 17 The ALJ Failed To Give Clear And Convincing Reasons For Finding Plaintiff s Testimony To Be Not Credible. 18 19 Once a disability claimant produces objective medical evidence of 20 an underlying impairment that is reasonably likely to be the source of 21 claimant s subjective symptom(s), all subjective testimony as to the 22 3 23 24 25 26 27 28 The Appeals Council considered the August 24, 2010 Questionnaire (A.R. 4.), which it made part of the Administrative Record, but determined that the evidence d[id] not provide a basis for changing the [ALJ] s decision (A.R. 2). Notwithstanding the Appeals Council s determination, this Court must consider such evidence in determining whether the ALJ s decision is supported by substantial evidence and free from legal error. See Brewes v. Comm r of SSA, 682 F.3d 1157, 1163 (9th Cir. 2012)(holding that when the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner s final decision for substantial evidence ). 10 1 severity of the symptoms must be considered. 2 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 3 (9th 4 (explaining how pain and other symptoms are evaluated). 5 ALJ makes 6 thereof, he or she may only find an applicant not credible by making 7 specific findings as to credibility and stating clear and convincing 8 reasons for each. 9 considered in weighing a claimant s credibility include: Cir. 1991); a see also finding of 20 C.F.R. §§ malingering based Moisa v. Barnhart, 367 404.1529(a), on Robbins, 466 F.3d at 883. 416.929(a) [U]nless an affirmative evidence The factors to be (1) the 10 claimant s reputation for truthfulness; (2) inconsistencies either in 11 the claimant s testimony or between the claimant s testimony and her 12 conduct; (3) the claimant s daily activities; (4) the claimant s work 13 record; and (5) testimony from physicians and third parties concerning 14 the nature, severity, and effect of the symptoms of which the claimant 15 complains. 16 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 17 18 The ALJ found plaintiff has the severe impairments of fibromyalgia 19 syndrome and diabetes mellitus. 20 plaintiff s 21 limiting effects of her symptoms are credible only to the extent they 22 are consistent with [his RFC] assess[ment]. 23 no evidence of malingering by plaintiff. 24 for rejecting plaintiff s credibility must be clear and convincing. statements (A.R. 20.) concerning the However, he found that intensity, persistence (A.R. 23.) and The ALJ cited Accordingly, the ALJ s reason 25 26 The ALJ found plaintiff s subjective complaints to be not fully 27 credible, because (1) [a]lthough [plaintiff] subscribes to a wide 28 variety of pains and other physical complaints, there are no objective 11 1 medical, clinical, laboratory, or radiographic findings to support these 2 asserted symptoms ; and (2) plaintiff has demonstrated for at least the 3 past 3 years that she is able to work for 15 hours per week, and 4 [t]here is a total lack of medical evidence to show that she could not 5 do the same work for 40 hours per week. (A.R. 23.) 6 7 The ALJ's first ground for finding plaintiff to be not credible 8 cannot, by itself, constitute 9 discrediting plaintiff. a clear and convincing reason for The failure of the objective medical record to 10 corroborate fully plaintiff's subjective symptom testimony is not, by 11 itself, 12 Rollins, 261 F.3d at 856; Burnell, 947 F.2d at 347 (noting that [i]f an 13 adjudicator 14 [plaintiff] fails to produce evidence supporting the severity of the 15 pain there would be no reason for an adjudicator to consider anything 16 other than medical findings ). 17 evidence is consistent with the nature and symptoms of fibromyalgia. 18 Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004)(stating that 19 fibromyalgia is diagnosed entirely on the basis of patients reports of 20 pain and other symptoms ). 21 objective evidence does not support the extent of plaintiff s symptoms 22 cannot, without more, constitute a clear and convincing reason for 23 discrediting plaintiff s testimony. 24 581, 584 (9th Cir. 1988); Cotten v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 25 1986). a legally could sufficient reject a basis claim for of rejecting disability such testimony. simply because Moreover, the lack of objective medical Accordingly, the ALJ s finding that the See Varney v. Secretary, 846 F.2d 26 27 28 The ALJ s second ground for discrediting plaintiff is also not clear and convincing. While it is true that plaintiff works 15 hours 12 1 per week (three hours a day, five days a week), plaintiff did not 2 indicate that she is capable of sustained work. 3 when asked by the ALJ why can t you work through the pain and put in 4 another 15 hours a week, plaintiff responded that she cannot do so, 5 because the pain is very severe and the medicine that they put me on 6 makes me very groggy. 4 7 how plaintiff's ability to work part-time as a caregiver amounts to the 8 ability to engage in, and sustain, full-time competitive work. 9 Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987)(disability claimant 10 need not vegetate in dark room to be deemed eligible for benefits); 11 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)( The Social Security 12 Act does not require that [an individual] be utterly incapacitated to be 13 eligible for benefits, . . . and many home activities are not easily 14 transferable to what may be the more grueling environment of the 15 workplace, where it might be impossible to periodically rest or take 16 medication. )(internal citations omitted). 17 reason for discrediting plaintiff's testimony is unavailing. (A.R. 36.) (A.R. 33.) In fact, Thus, the ALJ fails to demonstrate See As such, the ALJ's second 18 19 Accordingly, for the aforementioned reasons, the ALJ failed to give 20 clear and convincing reasons, as required, for discrediting plaintiff's 21 22 23 24 25 26 27 28 4 While not raised by plaintiff, the Court notes that the ALJ must also consider all the side effects of plaintiff's pain medication and their impact on plaintiff's ability to work. There is no indication that the side effects of plaintiff's medications were considered in the ALJ s disability evaluation. See Erickson v. Shalala, 9 F.3d 813, 817 18 (9th Cir. 1993)(noting that an ALJ must consider all factors, including the side effects of medications, that might have a significant impact on an individual's ability to work )(citation omitted); see also Soc. Sec. Ruling 96 7p, 1996 WL 374186, at *2 *3, 1996 SSR LEXIS 4, at *7 *8 (noting that the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms should be considered in the disability evaluation); 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv). 13 1 subjective pain testimony.5 2 3 III. Remand Is Required. 4 5 The decision whether to remand for further proceedings or order an 6 immediate award of benefits is within the district court s discretion. 7 Harman, 211 F.3d at 1175-78. 8 further administrative proceedings, or where the record has been fully 9 developed, it is appropriate to exercise this discretion to direct an Where no useful purpose would be served by 10 immediate award of benefits. Id. at 1179 ( [T]he decision of whether to 11 remand for further proceedings turns upon the likely utility of such 12 proceedings. ). 13 be resolved before a determination of disability can be made, and it is 14 not clear from the record that the ALJ would be required to find the 15 claimant disabled if all the evidence were properly evaluated, remand is 16 appropriate. However, where there are outstanding issues that must Id. at 1179-81. 17 18 Remand is the appropriate remedy to allow the ALJ the opportunity 19 to remedy the above-mentioned deficiencies and errors. See, e.g., 20 Benecke, 379 F.3d at 593 (remand for further proceedings is appropriate 21 if enhancement of the record would be useful); see Dodrill v. Shalala, 22 12 F.3d 915, 918 (9th Cir. 1993)(ordering remand so that the ALJ could 23 articulate specific and appropriate findings, if any existed, for 24 rejecting the claimant s subjective pain testimony). 25 26 5 27 28 While the Commissioner now offers other reasons to explain the ALJ's credibility determination, the Court cannot entertain these post hoc rationalizations. See, e.g., Orn, 495 F.3d at 630; Connett, 340 F.3d at 874. 14 1 The ALJ needs to reconsider plaintiff's testimony regarding her 2 pain and ability to work and, if appropriate, give clear and convincing 3 reasons for rejecting it. 4 treating physician's opinion its deserved weight or give specific and 5 legitimate reasons for not doing so. In addition, the ALJ must give plaintiff's 6 7 CONCLUSION 8 9 Accordingly, for the reasons stated above, IT IS ORDERED that the 10 decision of the Commissioner is REVERSED, and this case is REMANDED for 11 further proceedings consistent with this Memorandum Opinion and Order. 12 13 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 14 copies of this Memorandum Opinion and Order and the Judgment on counsel 15 for plaintiff and for defendant. 16 17 LET JUDGMENT BE ENTERED ACCORDINGLY. 18 19 DATED: August 27, 2012 20 21 22 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 15
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