Robert A. Lopez v. Carolyn W. Colvin, No. 5:2016cv00297 - Document 17 (C.D. Cal. 2017)
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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Robert A. Lopez v. Carolyn W. Colvin Doc. 17 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION 11 12 13 14 15 16 17 18 ROBERT A LOPEZ, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the ) Social Security Administration,) ) Defendant. ) ) Case No. ED CV 16-00297-AS MEMORANDUM OPINION AND ORDER OF REMAND 19 20 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED 21 that this matter is remanded for further administrative action 22 consistent with this Opinion. 23 24 PROCEEDINGS 25 26 On February 18, 2016, Plaintiff filed a Complaint seeking review of 27 the denial of his applications for Disability Insurance Benefits and 28 Supplemental Security Income. (Docket Entry No. 1). The parties have consented to proceed before the undersigned United States Magistrate Dockets.Justia.com 1 Judge. (Docket Entry Nos. 11-12). On June 27, 2016, Defendant filed an 2 Answer along with the Administrative Record (“AR”). (Docket Entry Nos. 3 14-15). The parties filed a Joint Position Statement (“Joint Stip.”) on 4 September 8, 2016, setting forth their respective positions regarding 5 Plaintiff’s claims. (Docket Entry No. 16). 6 7 The Court has taken this matter under submission without oral 8 argument. See C.D. Cal. L.R. 7-15; “Order Re: Procedures In Social 9 Security Case,” filed February 22, 2016 (Docket Entry No. 9). 10 11 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 12 13 On April 30, 2012, Plaintiff, formerly employed as a clerical 14 administrator for property management/banks/law firms, a front desk 15 clerk at a hotel, an apartment property manager, and a telemarketer (see 16 AR 38-39, 283, 301-07), filed applications for Disability Insurance 17 Benefits and for Supplemental Security Income, alleging a disability 18 since September 25, 2010. (See AR 249-55, 258-64). On January 23, 2014, 19 the Administrative Law Judge (“ALJ”), Nancy Lisewiski, heard testimony 20 from Plaintiff and vocational expert Troy Scott. 21 April 14, 2014, 22 applications. the ALJ issued (See AR 16-30). a decision (See AR 57-70). denying On Plaintiff’s The ALJ noted the September 24, 2010 23 decision of an administrative law judge finding that Plaintiff was not 24 disabled from August 28, 2007 through September 24, 2010 (see AR 75-81), 25 found that Plaintiff had not rebutted the presumption of continuing 26 nondisability with “changed circumstances” material to the disability 27 determination, and consequently, based on the principles of res 28 judicata, adopted the findings of the prior administrative judge. 16). (AR After determining that Plaintiff had severe impairments –2 1 ”coronary artery disease; morbid obesity; hypertension; diabetes; and 2 low back pain” (AR 19)1 --, the ALJ found that Plaintiff had the residual 3 functional capacity (“RFC”)2 to perform light work3 with the following 4 limitations: sitting and standing at will; no more than occasional 5 bending, stooping crouching, crawling, balancing, kneeling, and climbing 6 ramps; no walking on uneven surfaces; no climbing ladders, ropes or 7 scaffolds; and no exposure to extreme cold and vibrations. (AR 22-28). 8 Finding that Plaintiff was capable of performing his past relevant work, 9 the ALJ found that Plaintiff was not disabled within the meaning of the 10 Social Security Act. (AR 28-29). 11 12 Plaintiff requested that the Appeals Council review the ALJ’s 13 decision. 14 (AR 1-6). (AR 246-47). The request was denied on December 29, 2015. The ALJ’s decision then became the final decision of the 15 Commissioner, allowing this Court to review the decision. See 42 U.S.C. 16 §§ 405(g), 1383(c). 17 18 PLAINTIFF’S CONTENTIONS 19 20 Plaintiff alleges that the ALJ erred in failing to properly: (1) 21 consider Plaintiff’s testimony and make proper credibility findings; and 22 23 24 25 1 The ALJ found that Plaintiff’s mental impairments –- mood disorder and depression -- were nonsevere. (See AR 19-22). 2 A Residual Functional Capacity is what a claimant can still do See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 26 despite existing exertional and nonexertional limitations. 27 28 3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 3 1 (2) determine whether Plaintiff was capable of performing past relevant 2 work. (See Joint Stip. at 3-7, 11-18). 3 4 DISCUSSION 5 6 After consideration of the record as a whole, the Court finds that 7 Plaintiff’s first claim of error warrants a remand for further 8 consideration. Since the Court is remanding the matter based on 9 Plaintiff’s first claim of error, the Court will not address Plaintiff’s 10 second claim of error. 11 12 A. The ALJ Did Not Properly Assess Plaintiff’s Credibility 13 14 Plaintiff asserts that the ALJ failed to articulate legitimate 15 reasons to find his testimony and statements not fully credible. (See 16 Joint Stip. at 3-7). Defendant asserts that the ALJ provided proper 17 reasons for finding Plaintiff not fully credible. (See Joint Stip. at 18 7-11). 19 20 Plaintiff made the following statements in an undated, unsigned 21 “Function Report - Adult” (see AR 345-52)4: 22 23 He lives alone in an apartment. His day consists of 24 staying in bed, mostly watching movies, sleeping 5 to 9 hours, 25 and going to the market when he has food stamps. He does not 26 27 28 4 According to the Court Transcript Index at the beginning of the Administrative Record, Plaintiff’s “Function Report-Adult” was dated July 16, 2013. (See Court Transcript Index at 2). 4 1 allow any visitors, and he tries to avoid public contact. 2 takes care of his pets, feeding them in the morning and 3 cleaning the litter box at night (if he can get out of bed). 4 Prior to his impairments, he was able to work, where he 5 cooked, 6 impairments, particularly lower back sciatica, affects his 7 sleep. 8 percent of the time. 9 him sleepy and does not relieve the pain. 10 did housekeeping, sold and He is depressed and sad. did marketing. He His He is in pain about 80 He takes Flexall for pain, but it makes (See AR 345-46, 348-49). 11 12 He has no problem with his personal care, does not need 13 any special reminders to take care of his personal needs and 14 grooming, and does not need help or reminders taking medicine. 15 (See AR 347). 16 17 Once or twice a day he prepares his own meals, anything 18 that does not require him to stand more than 1 to 2 minutes 19 (if he feels pain from standing, he must sit for at least 10 20 minutes). 21 spicy foods. His impairments have limited his ability to eat (See id.). 22 23 He does not do chores because of his pain. 24 someone to clean and vacuum and dust. 25 work because he does not have a yard. 26 27 28 5 He hires He does not do any yard (See AR 347-48). 1 When he goes out, he drives a car. He shops in stores or 2 by computer. 3 help because he cannot carry much weight. When he goes shopping at the market, he needs (See AR 348). 4 5 6 He can pay bills (online), count change, handle a savings account and use a checkbook. (See AR 348-49). 7 8 He does not have hobbies and interests, and he does not 9 go places on a regular basis, because he is in pain and is on 10 a tight budget. 11 does want to be a burden and/or to make others feel sad. (See 12 AR 349-50). He does not socialize with others because he 13 14 His impairments affect his lifting, squatting, bending, 15 standing, reaching, 16 climbing, completing 17 following instructions, and getting along with others. 18 AR 350). walking, tasks, sitting, kneeling, concentration, stair understanding, (See 19 20 He can walk 10 minutes before needing to rest, and can 21 resume walking after resting for 20 minutes. 22 pay attention and to finish what he starts depends on his 23 level of interest. 24 long as he does not have to stand for too long. 25 how well he follows spoken instructions and gets along with 26 authority figures, he stated he avoids public contact. He has 27 not been fired or laid off from a job because of problems 28 getting along with other people. His ability to He can follow written instructions, as 6 When asked (See AR 350-51). 1 He does not handle stress well; he goes into a rage and 2 yells at people. 3 very well. 4 punished 5 glasses/contacts. He does not handle changes in his routine His unusual fears are feeling like he is being and going toward his death. He wears (See AR 351). 6 7 Plaintiff testified at the January 23, 2014 administrative hearing 8 as follows (see AR 61-67): 9 10 He is 5'11" tall and weighs 340 pounds. He drove to the 11 hearing, less than a half mile drive. 12 because of a painful sciatica and because of issues with his 13 blood sugar level. 14 father. He is not able to work He receives financial support from his (See AR 61-62, 66-67). 15 16 His sciatica is inflamed and causes him great pain. He 17 attempts to relieve the pain by shifting positions. 18 way he can really obtain relief is to lay down in bed and put 19 a heat paid on his left buttocks. The only (See AR 66). 20 21 He has had Type 1 diabetes since he was a juvenile; he 22 has injected himself with insulin since he was 16 years old. 23 Eating breakfast, especially a big breakfast, causes his blood 24 sugar level to shoot dangerously high, causing him to fall 25 asleep. He gives himself Humalog, which combined with regular 26 insulin, brings his blood sugar level down in two to three 27 hours. 28 sometimes higher. His blood sugar level runs from 200 to 400, and He follows a diabetic diet, whenever 7 1 possible. 2 that morning, he testified he ran out of test strips the night 3 before, but that he has his meter with him and he is going to 4 go pick up test strips at the pharmacy that morning. 5 62, 64-66). When asked whether he tested his blood sugar level (See AR 6 7 His gall stone problem is in remission. Although he had 8 abdominal pain in November 2013, he no longer has such pain. 9 (See AR 62). 10 11 He takes Methocarbamol (Robaxin) for back pain, 12 Carvedilol and Amlodipine for high blood pressure, Plavix for 13 the stents (in 2009 he had two stents placed because he was in 14 risk of a heart attack), Bezopril and Lipitor for cholesterol, 15 Famotidine (Zyrtec) for heartburn, Wellbutrin for depression 16 (he is in mental health treatment), Humulin N (three times a 17 day) and Humalog (3 to 4 times a day) for his diabetes. 18 AR 62-65). (See 19 20 The medications make him drowsy and cause him to sleep in 21 the middle of the day every day. 22 hours to relieve the pain. Every day he naps 2 to 4 (See AR 65). 23 24 After summarizing Plaintiff’s testimony at the hearing (see AR 23), 25 the ALJ addressed Plaintiff’s credibility as follows: 26 27 28 I find the claimant’s allegations concerning the intensity, persistence and limiting effects of his symptoms 8 1 are not fully credible. 2 limiting symptoms related to back pain, diabetes, and high 3 blood pressure were inconsistent with the objective medical 4 evidence, which indicates an attempt by the claimant to 5 exaggerate the severity of his symptoms. The allegations of debilitating and 6 7 The claimant attempted to minimize his daily activities 8 and alleged he slept two to four hours during the middle of 9 the day due to side effects from his medications. However, as 10 mentioned above, the claimant has described activities of 11 daily living, which were not limited to the extent one would 12 expect, 13 limitations. During a consultative psychological examination, 14 the claimant reported he is able to do household chores, run 15 errands, shop, cook, and dress and bathe himself (Ex. B4F, 16 p.5). In addition, the claimant testified he drove himself to 17 the hearing. 18 such activities undermines the credibility of the claimant’s 19 allegations of disabling functional limitations. given the complaints of disabling symptoms and I find the claimant’s ability to participate in 20 21 The claimant testified he is unable to control his blood 22 sugar levels and he claimed his levels become so high that he 23 falls asleep and must take time to medication [sic] himself to 24 reduce his symptoms. 25 is evidence in the medical record demonstrating the claimant’s 26 unwillingness to properly monitor his blood sugar levels as 27 recommended by his treating physicians. 28 claimant acknowledge he failed to test his blood sugar levels Despite his allegations, however, there 9 At the hearing, the 1 that morning. 2 so, the claimant failed several times to present a log of his 3 blood glucose levels during medical treatments for complaints 4 of diabetes (Ex. B7F, pp. 12-15, 29-33). 5 possible unwillingness to do what is necessary to improve his 6 condition. It may also be an indication that his symptoms are 7 not as severe as he purports. Further, despite numerous instructions to do This demonstrates a 8 9 In addition, the record reveals that the claimant failed 10 to follow-up on recommendations made by the treating doctor, 11 which further suggests that the symptoms may not have been as 12 serious as has been alleged. 13 follows the recommended diabetic diet, but only whenever 14 possible. 15 acknowledged he did not strictly adhere to a diabetic diet, 16 which had resulted in significant weight gain (Exh. B7F, p. 17 9). 18 doctor appointments on a number of occasions (Exhs. B6F, pp. 19 1, 75, 78, 83). 20 evidence 21 minimize medical treatment and maintain physical symptoms in 22 order to increase the chance of obtaining benefits. 23 in June 2013 at which time the claimant’s diabetes was 24 reported as improving, he expressed concern about receiving 25 specialized endocrinology treatment due to the probability 26 that he diabetes would become controlled resulting in his 27 inability for him to obtain disability benefits through Social 28 Security The claimant testified he During treating [sic] in August 2013, the claimant Further, the claimant cancelled or failed to show up for that (Exh. In addition, the record contains clear the claimant B7F, p. has 12). 10 consciously Accordingly, attempted I to Notably, find the 1 credibility 2 severity of his symptoms and limitations is greatly diminished 3 because he expressly stated an unwillingness to do what is 4 necessary to improve his condition and his actions confirm 5 this sentiment. of the claimant’s allegations regarding the 6 7 * * * * * 8 9 After careful consideration of the evidence, I find that 10 the 11 reasonably be expected to cause the alleged symptoms; however, 12 the 13 persistence and limiting effects of these symptoms are not 14 entirely credible for the reasons explained in this decision. claimant’s claimant’s medically determinable statements concerning impairments the could intensity, 15 16 (AR 23-24). 17 18 A claimant initially must produce objective medical evidence 19 establishing a medical impairment reasonably likely to be the cause of 20 the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 21 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Once a 22 claimant produces objective medical evidence of an underlying impairment 23 that could reasonably be expected to produce the pain or other symptoms 24 alleged, and there is no evidence of malingering, the ALJ may reject the 25 claimant’s testimony regarding the severity of his pain and symptoms 26 only by articulating specific, clear and convincing reasons for doing 27 so. Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir. 2015)(citing 28 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)); see also 11 1 Smolen v. Chater, supra; Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 2 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 3 Because the ALJ does not cite to any evidence in the record of 4 malingering, the “clear and convincing” standard stated above applies. 5 6 Here, the ALJ failed to provide clear and convincing reasons for 7 finding that Plaintiff’s testimony about the intensity, persistence and 8 limiting effects of his symptoms was not fully credible.5 9 10 First, the ALJ failed to “specifically identify ‘what testimony is 11 not credible and what evidence undermines [Plaintiff’s] complaints.’” 12 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v. 13 Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen v. Chater, 14 supra, 80 F.3d at 1284 (“The ALJ must state specifically what symptom 15 testimony is not credible and what facts in the record lead to that 16 conclusion”). Indeed, the ALJ did not even discuss the statements made 17 by Plaintiff in his Function Report. Moreover, the ALJ did not address 18 Plaintiff’s credibility with respect to his testimony about his 19 sciatica. 20 21 Second, the ALJ’s partial discrediting of Plaintiff’s testimony 22 based on his ability to perform certain daily activities, such as doing 23 household chores, running errands, shopping cooking, dressing, bathing 24 himself, and driving himself to the hearing, was not a clear and 25 convincing reason. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th 26 5 The Court will not consider reasons for finding Plaintiff not 27 fully credible (see Joint Stip. at 10) that were not given by the ALJ in the Decision. See Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 28 2001); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). 12 1 Cir. 2001) (“[T]he mere fact that a plaintiff has carried on certain 2 daily activities . . . does not in any way detract from her credibility 3 as to her overall disability. One does not need to be ‘utterly 4 incapacitated’ in order to be disabled.”); Reddick v. Chater, supra 5 (“Only if the level of activity were inconsistent with the Claimant’s 6 claimed limitations would these activities have any bearing on 7 Claimant’s credibility.”). 8 9 The ALJ improperly relied on Plaintiff’s statements about his 10 performance of certain daily activities in a psychological evaluation 11 report dated September 18, 2012 (see AR 530) which were made 12 approximately eleven months prior to Plaintiff’s statements in his 13 August 16, 2013 Function Report, and approximately seventeen months 14 prior to Plaintiff’s testimony at the January 23, 2014 administrative 15 hearing. Contrary to the ALJ’s implied assertion, Plaintiff’s testimony 16 that he needed to sleep two to four hours in the middle of the day 17 because of his medications (see AR 65) was not necessarily inconsistent 18 with Plaintiff’s statements/testimony about his ability to perform such 19 daily activities. It is not clear from the record, and the ALJ did not 20 attempt to ascertain, the specifics, and/or extent, of Plaintiff’s 21 abilities to do such daily activities. Therefore, the degree to which 22 Plaintiff could perform such daily activities may not have been 23 inconsistent with his testimony regarding his limitations. See Reddick 24 v. Chater, supra; see also Morgan v. Commissioner of Social Sec. Admin., 25 169 F.3d 595, 600 (9th Cir. 1999)(“If a claimant is able to spend a 26 substantial part of his day engaged in pursuits involving the 27 performance of physical functions that are transferable to a work 28 setting, a specific finding as to this fact may be sufficient to 13 1 discredit a claimant’s allegations.”). Moreover, to the extent that the 2 ALJ relied on Plaintiff’s testimony that he drove to the hearing, the 3 ALJ did not appear to take into account Plaintiff’s testimony that he 4 had to drive only one-half of a mile (see AR 61). 5 6 Third, although an ALJ may discount a claimant’s credibility based 7 on an “unexplained or inadequately explained failure to seek treatment 8 or to follow a prescribed course of treatment,” Tommasetti v. Astrue, 9 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell v. Sullivan, 947 F.2d 341, 10 346 (9th Cir. 1991), it is not clear whether the ALJ considered 11 Plaintiff’s explanation for why he did not test his blood sugar levels 12 the morning of the hearing, namely, that he had run out of test strips 13 the night before (see AR 62). See Social Security Ruling 16-3p, 2016 WL 14 1119029, *9 (March 16, 2016) (“. . . [I]f the frequency or extent of the 15 treatment sought by an individual is not comparable with the degree of 16 the individual’s subjective complaints, or if the individual fails to 17 follow prescribed treatment that might improve symptoms, we may find the 18 alleged intensity and persistence of an individual’s symptoms are 19 inconsistent with the overall evidence of record. We will not find an 20 individual’s symptoms inconsistent with the evidence in the record on 21 this basis without considering possible reasons he or she may not comply 22 with treatment or seek treatment consistent with the degree of his or 23 her complaints. We may need to contact the individual regarding the 24 lack of treatment or, at an administrative proceeding, ask why he or she 25 has not complied with or sought treatment in a manner consistent with 26 his or her complaints.”). 27 In addition, while the ALJ properly noted that on August 7, 2013 28 and April 13, 2014, Plaintiff did not bring logs of his blood sugar 14 1 levels, despite previous encouragement to do so (see AR 1027-29, 1046), 2 it does not appear that Plaintiff was asked at the time of those 3 appointments or at the time of the administrative hearing why he did not 4 bring the logs. Moreover, while the ALJ properly noted the statements 5 in the August 16, 2013 report about Plaintiff’s lack of strict adherence 6 to a diabetic diet and Plaintiff’s weight gain (see AR 1024 [“Pt. 7 reports that he is managing his diabetes but then he notes that he does 8 not adhere strictly to a diabetic diet and that he has gained weight 9 (from 294 to 307#).”], as well as Plaintiff’s hearing testimony that he 10 follows the diabetic diet “whenever possible” (see AR 65), it does not 11 appear that at the time of the August 2013 appointment Plaintiff was 12 asked why he was not strictly adhering to a diabetic diet, or that at 13 the time of the administrative hearing Plaintiff was asked about why in 14 August 2013 he was not strictly adhering to a diabetic diet or about 15 what he meant when he testified he followed the diabetic diet “whenever 16 possible.” Finally, although there were medical records concerning 17 Plaintiff’s cancellations of, or failure to show up to, medical 18 appointments on February 6, 2012 (see AR 948 [notation that appointment 19 not kept, no indication about nature of appointment]), February 26, 2012 20 (see AR 943 [notation that appointment not kept, no indication about 21 nature of appointment]), March 13, 2012 (see AR 940 [notation that 22 appointment not kept, no indication about nature of appointment] and 23 February 13, 2013 (see AR 866 [notation that pharmacy appointment not 24 kept, rescheduled for March 4, 2013]), it does not appear that at the 25 administrative hearing Plaintiff was asked about why he cancelled or 26 failed to show up for those appointments. Indeed, the record appears to 27 reflect that Plaintiff attended or kept the most of his diabetes-related 28 appointments (see e.g., AR 950-52, 957 [December 6, 2011], 949, 953-54 15 1 [January 13, 2012], 946-47 [February 8, 2012], 939 [March 20, 2012], 2 1044-48 [April 3, 2013], 938 [April 23, 2012], 937 [May 27, 2012], 8883 98 [November 6, 2012], 867-71, 873-77 [January 29, 2013]), 1027-30 4 [August 7, 2013], 1016-17 [October 4, 2013], 1022-23 [September 10, 5 2013], 1020-21 [September 17, 2013], 1018-19 [November 19, 2013]). 6 7 Fourth, to the extent that the ALJ partially discredited 8 Plaintiff’s credibility because of statements expressing concern that 9 endocrinology treatment would impact his ability to obtain disability 10 benefits (see AR 1027 [notations in August 7, 2013 notes from the 11 diabetic clinic at Riverside County Medical Regional Center, as follows: 12 “Pt came to FCC DM Clinic today as Walk-in stating he’s concerned if he 13 sees Endocrinology there’s a probability his DM will become controlled 14 and he will be unable to get disability (SSSI). Pt states he’s been 15 working on getting disability for some time and now that he’s 50 (last 16 2 weeks greater likelihood. Requesting disability paperwork (incl for 17 CLBP) be completed today by DM Clinic.”), those statements did not 18 necessarily support the ALJ’s assertion that “[Plaintiff] has 19 consciously attempted to minimize medical treatment and maintain 20 physical symptoms in order to increase the chance of obtaining benefits” 21 (AR 24). Simply because Plaintiff expressed concern on August 7, 2013 22 (approximately three years after the alleged onset of disability date, 23 and approximately 15 months after the filing of Plaintiff’s 24 applications) that his improved health might impact his ability to 25 obtain disability benefits does not mean or show that throughout the 26 period at issue (beginning in September 25, 2010) he did not act to 27 improve his physical health, particularly with respect to his diabetes. 28 At the hearing, the ALJ did not ask Plaintiff to explain his statements. 16 1 Moreover, those statements were not relevant to Plaintiff’s testimony 2 with respect to issues with his lower back. 3 4 Fifth, although the ALJ also found that there was a lack of 5 objective medical evidence supporting Plaintiff’s testimony concerning 6 his symptoms and limitations, the lack of supporting objective medical 7 evidence cannot, by itself, support an adverse credibility finding. See 8 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Tidwell v. 9 Apfel, 161 F.3d 599, 602 (9th Cir. 1998). 10 11 B. Remand Is Warranted 12 13 The decision whether to remand for further proceedings or order an 14 immediate award of benefits is within the district court’s discretion. 15 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 16 useful purpose would be served by further administrative proceedings, or 17 where the record has been fully developed, it is appropriate to exercise 18 this discretion to direct an immediate award of benefits. Id. at 1179 19 (“[T]he decision of whether to remand for further proceedings turns upon 20 the likely utility of such proceedings.”). However, where, as here, the 21 circumstances of the case suggest that further administrative review 22 could remedy the Commissioner’s errors, remand is appropriate. McLeod 23 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra, 24 211 F.3d at 1179-81. 25 26 Since the ALJ failed to properly assess Plaintiff’s credibility, 27 remand is appropriate. Because outstanding issues must be resolved 28 before a determination of disability can be made, and “when the record 17 1 as a whole creates serious doubt as to whether the [Plaintiff] is, in 2 fact, disabled within the meaning of the Social Security Act,” further 3 administrative proceedings would serve a useful purpose and remedy 4 defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 5 2014)(citations omitted).6 6 7 ORDER 8 9 For the foregoing reasons, the decision of the Commissioner is 10 reversed, and the matter is remanded for further proceedings pursuant to 11 Sentence 4 of 42 U.S.C. § 405(g). 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 DATED: January 5, 2017 16 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 6 The Court has not reached any other issue raised by Plaintiff 24 except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 25 “[E]valuation of the record as a whole creates serious doubt that Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995, Accordingly, the Court declines to rule on Plaintiff’s claim regarding the ALJ’s error in finding that Plaintiff was capable of performing past relevant work (see Joint Stip. at 11-18). Because this matter is being remanded for further consideration, this issue should also be considered on remand. 26 1021 (2014). 27 28 18
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