Dana Benjamin v. Carolyn W Colvin, No. 5:2013cv02343 - Document 18 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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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 DANA BENJAMIN, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ) ___________________________________) NO. ED CV 13-2343-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff s and Defendant s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on January 8, 2014, seeking review of 26 the Commissioner s denial of disability benefits. The parties filed a 27 consent to proceed before a United States Magistrate Judge on March 3, 28 2014. Plaintiff filed a motion for summary judgment on June 19, 2014. 1 Defendant filed a motion for summary judgment on July 21, 2014. The 2 Court has taken the motions under submission without oral argument. 3 See L.R. 7-15; Minute Order, filed January 9, 2014. 4 5 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 6 7 Plaintiff, a former administrative assistant, asserts disability 8 since October 8, 2008, based on mental problems (Administrative 9 Record ( A.R. ) 128-46, 161-63). An Administrative Law Judge ( ALJ ) 10 found Plaintiff has the following severe conditions: schizoaffective 11 disorder; post-traumatic stress disorder (PTSD); history of alcohol 12 dependency, in early remission; and personality disorder (A.R. 21). 13 The ALJ found that, notwithstanding these impairments: (1) Plaintiff 14 retains the residual functional capacity for work at all exertion 15 levels with certain nonexertional limitations;1 and (2) a person with 16 this residual functional capacity could perform work as a general 17 clerk, clerk typist, or office helper (A.R. 23, 30-31 (adopting 18 vocational expert testimony at A.R. 62-64)). 19 ALJ deemed Plaintiff s subjective complaints less than fully credible 20 (A.R. 24-28). In denying benefits, the The Appeals Council denied review (A.R. 5-7). 21 22 1 Specifically, the ALJ found that Plaintiff would have the following nonexertional limitations: 23 24 25 26 27 28 [Plaintiff] cannot perform work requiring hypervigilance or intense concentration on a particular task; she could perform work involving things or data rather than people; [Plaintiff] cannot tolerate frequent changes in her workplace setting, routine or schedule; and she cannot perform work involving fastpaced production or assembly-line type work. (A.R. 23). 2 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration s decision to determine if: (1) the Administration s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 9 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. 10 Substantial evidence is such relevant evidence as a reasonable mind 11 might accept as adequate to support a conclusion. 12 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 13 see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. 14 15 DISCUSSION 16 17 I. 18 The ALJ Materially Erred in the Analysis of Plaintiff s Credibility. 19 20 When an ALJ finds that a claimant s medically determinable 21 impairments reasonably could be expected to cause the symptoms 22 alleged, the ALJ may not discount the claimant s testimony regarding 23 the severity of the symptoms without making specific, cogent 24 findings, supported in the record, to justify discounting such 25 testimony. 26 also Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney 27 /// 28 /// Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see 3 1 v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988).2 2 conclusory findings do not suffice. 3 882, 885 (9th Cir. 2004) (the ALJ s credibility findings must be 4 sufficiently specific to allow a reviewing court to conclude the ALJ 5 rejected the claimant s testimony on permissible grounds and did not 6 arbitrarily discredit the claimant s testimony ) (internal citations 7 and quotations omitted); Holohan v. Massanari, 246 F.3d 1195, 1208 8 (9th Cir. 2001) (the ALJ must specifically identify the testimony 9 [the ALJ] finds not to be credible and must explain what evidence Generalized, See Moisa v. Barnhart, 367 F.3d 10 undermines the testimony ); Smolen v. Chater, 80 F.3d 1273, 1284 (9th 11 Cir. 1996) ( The ALJ must state specifically which symptom testimony 12 is not credible and what facts in the record lead to that 13 conclusion. ); see also Social Security Ruling 96-7p. 14 15 In the present case, the ALJ found that Plaintiff s medically 16 determinable impairments could reasonably be expected to cause some of 17 the alleged symptoms (A.R. 25) (emphasis added). 18 characterized Plaintiff s testimony regarding the severity of her 19 symptoms and limitations as greater than expected in light of other 20 statements and the objective evidence of record, given: However, the ALJ 21 22 23 24 25 26 27 28 2 In the absence of a finding of malingering, or at least evidence of malingering, most recent Ninth Circuit cases have applied the clear and convincing standard. See, e.g., Ghanim v. Colvin, 2014 WL 4056530, at *7 n.9 (9th Cir. Aug. 18, 2014); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Taylor v. Commissioner of Social Security Admin., 659 F.3d 1228, 1234 (9th Cir. 2011); Valentine v. Commissioner, 574 F.3d 685, 693 (9th Cir. 2009); Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). In the present case, the ALJ s findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. 4 1 (1) Plaintiff s largely normal level of daily activities; 2 (2) Plaintiff s receipt of unemployment compensation during the 3 alleged disability period; and (3) Plaintiff s limited treatment 4 records showing (a) no evidence of treatment for Plaintiff s 5 psychiatric condition from the alleged onset date until Plaintiff was 6 hospitalized in October of 2010, (b) Plaintiff s refusal to attend 7 group psychotherapy sessions and insistence on only a few individual 8 sessions, (c) no evidence that Plaintiff actually received 9 psychotherapy, (d) gaps in Plaintiff s psychiatric treatment, 10 (e) noncompliance with medications because Plaintiff would forget to 11 take them at times, and (f) evidence suggesting that Plaintiff only 12 contacted the mental health clinic when she ran out of medication, and 13 would do so by walk-in visits where she showed no signs of psychotic 14 or manic behavior (A.R. 24-28).3 15 16 Turning first to the treatment records, a limited course of 17 treatment sometimes can justify the rejection of a claimant s 18 testimony, at least where the testimony concerns physical problems. 19 See, e.g., Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack 20 of consistent treatment such as where there was a three to four month 21 gap in treatment properly considered in discrediting claimant s back 22 pain testimony); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) 23 (in assessing the credibility of a claimant s pain testimony, the 24 25 26 27 28 3 Defendant also emphasizes the medical evidence, particularly the medical opinion evidence. Where, as here, the other stated reasons for discounting a claimant s testimony are insufficient, the medical evidence cannot constitute a sufficient reason. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 5 1 Administration properly may consider the claimant s failure to request 2 treatment and failure to follow treatment advice) (citing Bunnell v. 3 Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc)); Matthews v. 4 Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993) (permissible credibility 5 factors in assessing pain testimony include limited treatment and 6 minimal use of medications); see also Johnson v. Shalala, 60 F.3d 7 1428, 1434 (9th Cir. 1995) (absence of treatment for back pain during 8 half of the alleged disability period, and evidence of only 9 conservative treatment when the claimant finally sought treatment, 10 sufficient to discount claimant s testimony). However, the Ninth 11 Circuit has observed that it is a questionable practice to chastise 12 one with a mental impairment for the exercise of poor judgment in 13 seeking rehabilitation. 14 Cir. 1996) (citations and quotations omitted); see also Garrison v. 15 Colvin, ___ F.3d ___, 2014 WL 3397218, at *23, n.24 (9th Cir. July 14, 16 2014) (quoting Nguyen v. Chater); Regennitter v. Commissioner of 17 Social Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999) (same; 18 also noting that mental illness is notoriously underreported); 19 Martinez v. Colvin, 2014 WL 3809048, at *12 (D. Ariz. Aug. 1, 2014) 20 (finding noncompliance with mental health treatment not to be an 21 appropriate basis for the ALJ to discount claimant s credibility); 22 Rosas v. Colvin, 2014 WL 3736531, at *11 (C.D. Cal. July 28, 2014) 23 (claimant s limited treatment for mental illness not by itself a clear 24 and convincing reason for rejecting claimant s credibility); Etter v. 25 Colvin, 2014 WL 2931145, at *2-*3 (C.D. Cal. June 26, 2014) (finding 26 ALJ s residual functional capacity assessment not supported by 27 substantial evidence where ALJ gave "little" weight to the psychiatric 28 consultative examiner s opinion and, in doing so, highlighted that the Nguyen v. Chater, 100 F.3d 1462, 1465 (9th 6 1 claimant had not received mental health treatment; citing, inter alia, 2 Nguyen v. Chater); accord Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th 3 Cir. 2009) ( a mentally ill person s noncompliance with psychiatric 4 medications can be, and usually is, the result of the mental 5 impairment itself and, therefore, neither willful nor without a 6 justifiable excuse ) (internal citations and quotations omitted); 7 Kangail v. Barnhart, 454 F.3d 627, 630 (7th Cir. 2006) ( mental 8 illness in general . . . may prevent the sufferer from taking her 9 prescribed medicines or otherwise submitting to treatment ) (internal 10 citations omitted). 11 12 Plaintiff, who was 36 years old at the time of the hearing, 13 testified that she quit high school because she ran away, tried to 14 kill herself, and went to a mental hospital, adding I went to mental 15 hospitals back then (A.R. 41). 16 working due to problems with anxiety and nervousness, she had missed 17 approximately four days of work per month, and she was terminated 18 because of her attitude with clients and because she would not, or 19 could not, dress up (A.R. 43-44). 20 sought treatment for issues dealing with her work behavior because she 21 did not have insurance when she lost her job and thought she could 22 deal with it on [her] own (A.R. 45). 23 the only therapy available to her, group therapy,4 because she did not 24 feel comfortable talking in front of men concerning her issues (which Plaintiff testified that she stopped Plaintiff said that she never Plaintiff also did not undergo 25 26 27 28 4 See A.R. 260, 280-81 (treatment notes indicating Plaintiff requested and was denied individual therapy); A.R. 342, 344 (Plaintiff again requesting individual therapy but reportedly expressing no interest in transferring to another agency for long term therapy). 7 1 included a history of molestation) (A.R. 47-48). 2 3 Although Plaintiff s treatment notes consist primarily of 4 medication refill walk-in visits or calls (see, e.g., A.R. 284, 331- 5 33, 336-45, 354-55), as of the hearing date Plaintiff was taking 6 Prozac, Lithium, and Seroquel, and had been prescribed Zyprexa (A.R. 7 45). 8 Lithium, Seroquel, and Zyprexa, connotes mental health treatment which 9 is not conservative, within the meaning of social security Courts specifically have recognized that the prescription of 10 jurisprudence. See, e.g., Carden v. Colvin, 2014 WL 839111, at *3 11 (C.D. Cal. Mar. 4, 2014) (Zyprexa, Lithium and Seroquel); Mason v. 12 Colvin, 2013 WL 5278932, at *3-6 (Seroquel); Armstrong v. Colvin, 2013 13 WL 3381352, at *4-5 (C.D. Cal. July 8, 2013) (Seroquel); Gentry v. 14 Colvin, 2013 WL 6185170, at *12 (E.D. Cal. Nov. 26, 2013) (Zyprexa); 15 Simington v. Astrue, 2011 WL 1261298, at *7 (D. Or. Feb. 23, 2011), 16 adopted, 2011 WL 1225581 (D. Or. Mar. 29, 2011) (Lithium); compare 17 Scott v. Astrue, 2013 WL 3243777, at *16 (N.D. Cal. June 26, 2013) 18 (approving of ALJ s conservative treatment reasoning for rejecting 19 claimant s credibility, where the claimant was taking only Prozac and 20 was not willing to consider therapy, which tends to suggest that her 21 symptoms were not as bothersome as she alleged ); Adams v. Astrue, 22 2012 WL 4107882, at *5 (C.D. Cal. Sept. 19, 2012) (mental health 23 treatment that consisted of periodic prescriptions for antidepressants 24 (Wellbutrin and Prozac) and individual therapy for only a portion of 25 the disability period was considered conservative and non- 26 aggressive ). 27 /// 28 /// 8 1 In view of all of the attendant circumstances, under the 2 authorities discussed above, the nature of Plaintiff s treatment for 3 her mental health condition is not a specific, cogent finding upon 4 which to uphold the ALJ s adverse credibility determination. 5 6 The ALJ s remaining stated reasons for discounting Plaintiff s 7 credibility similarly fail to constitute the requisite specific, 8 cogent findings. 9 necessarily inconsistent with disability under the Social Security First, the receipt of unemployment benefits is not 10 Rules. See Freeman v. Colvin, 2014 WL 793148, at *2 & n.1 (W.D. Wash. 11 Feb. 26, 2014) (quoting the Appeals Council as stating: The Chief 12 Administrative Law Judge s memorandum, dated August 9, 2010, makes it 13 clear that one s claim to be able to work doesn t contradict one s 14 claim to be disabled under Social Security Rules. 15 sequential evaluation process, one can be found able to perform some 16 work, and still be found disabled. . . . 17 Judge s memorandum also states that applications for unemployment 18 benefits must be considered as part of the overall evidence of record 19 that is to support the ultimate determination. 20 application cannot alone disqualify one for disability benefits, as 21 the hearing decision suggests, it is to be considered as part of the 22 sequential evaluation. ); see also Mulanax v. Commissioner of Social 23 Sec., 293 Fed. App x 522, 523 (9th Cir. 2008) (unpublished decision 24 stating that the receipt of unemployment benefits by itself fails to 25 support a conclusion that a claimant is not credible; Generally, in 26 order to be eligible for disability benefits under the Social Security 27 Act, the person must be unable to sustain full-time work eight hours 28 per day, five days per week. Under our The Chief Administrative Law While such an However under Oregon law, a person is 9 1 eligible for unemployment benefits if she is available for some work, 2 including temporary or part-time opportunities. 3 [claimant s] claim of unemployment in Oregon is not necessarily 4 inconsistent with her claim of disability benefits under the Social 5 Security Act. ) (internal citations omitted). 6 person who is only available for part-time work may still be eligible 7 for unemployment benefits. 8 this case, there is no indication whether Plaintiff based her claim 9 for unemployment benefits on full-time or part-time work. Therefore, Under California law, a See Cal. Unemp. Ins. Code § 1253.8. In On this 10 record, therefore, the fact that Plaintiff may have claimed to be able 11 to do some work does not support the ALJ s adverse credibility 12 determination. 13 (9th Cir. 2008) ( [W]hile receipt of unemployment benefits can 14 undermine a claimant s alleged inability to work full time, the record 15 here does not establish whether [the claimant] held himself out as 16 available for full-time or part-time work. 17 inconsistent with his disability allegations. 18 the ALJ s credibility finding is not supported by substantial 19 evidence. ) (citations omitted); Vasquez v. Colvin, 2014 WL 65305, at 20 *17 (D. Ariz. Jan. 8, 2014) (substantial evidence failed to support 21 adverse credibility finding where the record did not establish whether 22 the claimant who sought unemployment benefits held herself out as 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// See Carmickle v. Commissioner, 533 F.3d 1155, 1161 62 10 Only the former is Thus, such basis for 1 available for full-time or part-time work).5 2 3 Second, the ALJ s characterization of Plaintiff s daily 4 activities as largely normal and assertedly consistent with the 5 requisites for obtaining and maintaining employment, is not a cogent 6 reason to support the ALJ s adverse credibility finding. 7 stated that Plaintiff cares for two teenage daughters, drives, cooks 8 simple meals, cleans, does laundry, shops weekly, attends church 9 weekly (although she sits in the back), and visits her brother who 10 lives in the same neighborhood. 11 /// 12 /// 13 /// 14 The ALJ See A.R. 24-25. /// 15 5 16 17 18 19 20 21 22 23 24 25 26 27 28 Ninth Circuit case law in this area does not appear to be entirely consistent. In Webb v. Barnhart, 433 F.3d 683 (9th Cir. 2005), the Ninth Circuit rejected as a basis for finding a claimant not credible the claimant s having held himself out as being able to work during the period of alleged disability. Id. at 687-88. Other Ninth Circuit decisions have upheld adverse credibility determinations based at least in part on a claimant s having held himself or herself out as being able to work during the period of alleged disability. See Bray v. Commissioner, 554 F.3d 1219, 1227 (9th Cir. 2009) (among the specific findings supporting ALJ s adverse credibility determination was fact that claimant had sought employment); Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988) (upholding ALJ s adverse credibility determination where the ALJ relied in part on the fact that the claimant received unemployment insurance benefits . . . apparently considering himself capable of work and holding himself out as available for work ). Most recently, in Ghanim v. Colvin, 2014 WL 4056530, at *8 (9th Cir. Aug. 18, 2014), the Ninth Circuit stated that continued receipt of unemployment benefits casts doubt on a claim of disability, but also stated that the receipt of some unemployment benefits followed by the subsequent refusal of unemployment benefits actually supports a claim of disability. 11 1 Plaintiff testified that she has two daughters, ages 19 and 13, 2 and that the 13 year old lived at home (A.R. 50-51).6 3 Plaintiff was taking medications, she explained that it was harder for 4 her to perform daily activities like getting up, making something to 5 eat, and washing herself (A.R. 56). 6 ghost in her house because she is always hearing footsteps and talking 7 in the next room when no one is there (A.R. 56). 8 stays home and tends to avoid going out because she feels safer inside 9 (A.R. 57). Although Plaintiff said thought she had a Plaintiff said she Plaintiff did say she goes to church on Sunday, but she 10 reportedly sits in back near the door (A.R. 58). Plaintiff said she 11 visits her brother and his family at his home, which is six or seven 12 houses down from Plaintiff s home (A.R. 58). 13 14 Plaintiff reported in an activity form that she rarely leaves the 15 house because she thinks people are following her due to a lawsuit 16 (A.R. 183, 186-89; see also A.R. 242 (note in medical record 17 indicating that Plaintiff s brother confirmed Plaintiff had legal 18 /// 19 /// 20 /// 21 22 23 24 25 26 27 28 6 When Plaintiff was hospitalized in October of 2010, she was pulled over for driving on the wrong side of the road (A.R. 52). Plaintiff thought people were following her (A.R. 52). Plaintiff had her 13 year old daughter with her at the time (A.R. 52). When police pulled Plaintiff over she ran and left her daughter in the car (A.R. 52). This incident led to Plaintiff s first mental health treatment during the disability period, and also led to the taking away of Plaintiff s daughter by the Department of Children and Family Services (A.R. 54; see also A.R. 237-55 (records from hospitalization)). Thus, for at least a portion of the disability period it appears that Plaintiff was unable to care for her daughter without assistance. 12 1 problems with businessmen that resulted in a court battle)).7 2 Plaintiff reportedly spends her days trying to clean her house, 3 waiting for her kids to walk home from school, cooking dinner, and 4 watching DVDs before going to bed (A.R. 183). 5 sandwiches and frozen dinners daily, clean and do laundry for two 6 hours every other day, and grocery shop once a week for two hours 7 (A.R. 185-86). 8 instructions good, but indicated that she has trouble concentrating 9 and getting along with others (A.R. 188).8 Plaintiff could make Plaintiff thought she followed written and spoken 10 11 A claimant does not have to be completely incapacitated to be 12 disabled. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see 13 also Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) 14 ( Vertigan ) ( the mere fact that a plaintiff has carried on certain 15 daily activities, such as grocery shopping, driving a car, or limited 16 17 7 18 19 20 21 22 23 24 25 26 27 28 In a third party report dated January 24, 2011, Plaintiff s brother repeatedly described Plaintiff as very paranoid, very withdrawn and more secluded, explaining that he had seen an increase in Plaintiff s seclusion and wanting to be home alone (A.R. 168-75). The ALJ rejected Plaintiff s brother s report because, inter alia, Plaintiff s brother could not be considered a disinterested third party witness whose testimony would not tend to be colored by affection for the claimant. See A.R. 25. The Ninth Circuit consistently has held that bias cannot be presumed from a familial or personal relationship. See, e.g., Regennitter v. Commissioner of Soc. Sec. Adm., 166 F.3d 1294, 1298 (9th Cir. 1999); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 8 After a face-to-face meeting with Plaintiff on November 18, 2010, the disability interviewer reported that Plaintiff had been very monotone, very lathargic [sic], and had appeared to have been heavily medicated (A.R. 159). The interviewer observed Plaintiff having difficulty with coherency and concentration (A.R. 159). 13 1 walking for exercise, does not in any way detract from her credibility 2 as to her overall disability ); Gallant v. Heckler, 753 F.2d 1450, 3 1453-55 (9th Cir. 1984) ( Gallant ) (fact that claimant could cook for 4 himself and family members as well as wash dishes did not preclude a 5 finding that claimant was disabled due to constant back and leg 6 pain). 7 reported that she performed activities which would translate to 8 sustained activity in a work setting on a regular and continuing basis 9 for eight hours a day, five days a week. 10 The record does not suggest that Plaintiff at any time See Social Security Ruling 96-8p (defining scope of residual functional capacity).9 11 12 II. Remand is Appropriate. 13 14 Because the circumstances of the case suggest that further 15 administrative review could remedy the ALJ s errors, remand is 16 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see 17 18 19 20 21 22 23 24 25 26 27 28 9 In Burch v. Barnhart, 400 F.3d at 680 ( Burch ), the Ninth Circuit upheld an ALJ s rejection of a claimant s credibility in partial reliance on the claimant s daily activities of cooking, cleaning, shopping, interacting with others and managing her own finances and those of her nephew. In doing so, the Ninth Circuit did not purport to depart from the general rule that an ALJ may consider daily living activities in the credibility analysis only where a claimant engages in numerous daily activities involving skills that could be transferred to the workplace. Id. at 681. Undeniably, however, it is difficult to reconcile the result in Burch with the results in cases like Vertigan and Gallant. Certainly, the relevance of a claimant carrying on daily activities should be evaluated on a case-by-case basis. Bloch on Social Security § 3.37 (Jan. 2005). In the present case, in light of the seemingly conflicting Ninth Circuit case law as well as the evidence in the record suggesting that Plaintiff s daily activities are not largely normal, this Court does not believe Burch compels affirmance. 14 1 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) ( Connett ) 2 (remand is an option where the ALJ fails to state sufficient reasons 3 for rejecting a claimant s excess symptom testimony); but see Orn v. 4 Astrue, 495 F.3d at 640 (appearing, confusingly, to cite Connett for 5 the proposition that [w]hen an ALJ s reasons for rejecting the 6 claimant s testimony are legally insufficient and it is clear from the 7 record that the ALJ would be required to determine the claimant 8 disabled if he had credited the claimant s testimony, we remand for a 9 calculation of benefits ) (quotations omitted); see also Garrison v. 10 Colvin, 2014 WL 3397218, at *21 (9th Cir. July 14, 2014) (court may 11 remand for further proceedings, even though all conditions of the 12 credit-as-true rule are satisfied, [when] an evaluation of the record 13 as a whole creates serious doubt that a claimant is, in fact, 14 disabled ); Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) 15 (agreeing that a court need not credit as true improperly rejected 16 claimant testimony where there are outstanding issues that must be 17 resolved before a proper disability determination can be made); see 18 generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 19 administrative determination, the proper course is remand for 20 additional agency investigation or explanation, except in rare 21 circumstances).10 22 /// 23 /// 24 25 26 27 28 10 There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For example, it is not clear whether the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability even if Plaintiff s testimony were fully credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). 15 1 CONCLUSION 2 3 For all of the foregoing reasons,11 Plaintiff s and Defendant s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: September 9, 2014. 10 _____________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. [E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled. See Garrison v. Colvin, 2014 WL 3397218, at *21. 16

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