(SS) Castro v. Commissioner of Social Security, No. 1:2010cv01092 - Document 18 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS re 1 , Social Security Complaint filed by Michael Castro, recommending that the ALJ's decision be REVERSED and the case be REMANDED to the ALJ to make additional findings. Matter referred to Judge Ishii; Objections to F&R due within fifteen (15) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 8/8/2011. (Timken, A)
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(SS) Castro v. Commissioner of Social Security Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL CASTRO, 11 12 13 14 15 16 17 ) ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) ) Defendant. ) ) _____________________________________ ) 1:10-cv-01092-AWI-SKO FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Doc. 1) 18 19 BACKGROUND 20 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the 21 "Commissioner" or "Defendant") denying his application for disability insurance benefits ("DIB") 22 pursuant to Title II of the Social Security Act (the "Act"). 42 U.S.C. § 405(g). The matter is 23 currently before the Court on the parties' briefs, and was referred to the Honorable Sheila K. Oberto, 24 United States Magistrate Judge. 28 U.S.C. § 636; Local Rule 302(c)(15). 25 FACTUAL BACKGROUND 26 Plaintiff was born in 1962, has a high school education, and has completed approximately 27 one year of college; Plaintiff previously worked as a janitor. (Administrative Record ("AR") 28, 28 44.) On March 31, 2006, Plaintiff filed an application for DIB, alleging disability beginning Dockets.Justia.com 1 December 10, 2005, due to carpal tunnel syndrome, tendinitis, and pain in his neck, shoulder, arm, 2 elbow, forearm, wrists, hand, back, hips, knees, and ankles. (AR 67, 73.) 3 A. Medical Evidence 4 On February 1, 2006, Plaintiff presented with a history of bilateral carpal tunnel syndrome 5 to Dr. Robert M. Mochizuki. (AR 235-39.) He complained of aching in both hands with sensory 6 loss in his thumb, index, and middle finger of his right hand. (AR 235.) Plaintiff related to Dr. 7 Mochizuki that his condition was aggravated by repetitive hand use and indicated that the onset of 8 the pain occurred while he was using a broken vacuum cleaner at work, holding it together as he 9 performed his work activities. As a result, his hand began to hurt on or around December 5, 2005. 10 (AR 235.) Dr. Mochizuki reported that Plaintiff underwent an electromyogram in December 2005 11 which demonstrated severe right carpal tunnel syndrome and a mild median neuropathy of the left 12 hand. (AR 235.) Dr. Mochizuki also noted that Plaintiff was treated by Dr. Jose L. Ibarra for carpal 13 tunnel syndrome, and Plaintiff was provided with braces, prescribed Naprosyn, and was placed on 14 light duty. (AR 235.) Plaintiff had also been prescribed Vicodin and Ambien. (AR 235.) 15 Dr. Mochizuki assessed Plaintiff as having bilateral carpal tunnel syndrome, with the right 16 hand and arm more symptomatic than the left; repetitive strain injury of the upper extremities; and 17 extensor tenosynovitis of the right wrist and hand. (AR 238). He recommended that the Naprosyn 18 prescription be discontinued and that Plaintiff begin to take Daypro. Plaintiff was precluded from 19 repetitive grasping, pushing, and pulling activities with his upper extremities, and was scheduled for 20 a right carpal tunnel release surgery. (AR 238.) Dr. Mochizuki also reported that Plaintiff would 21 be temporarily and totally disabled for two weeks after the surgery, followed by a period of light duty 22 activity for six weeks. He anticipated that Plaintiff would require physical therapy three times per 23 week for three weeks; he stated that some permanent residuals were anticipated following surgery. 24 (AR 238.) 25 On April 10, 2006, Dr. Mochizuki performed a right carpal tunnel surgical release on 26 Plaintiff's right hand. (AR 393-94.) Plaintiff returned for a follow-up examination on April 19, 27 2006. (AR 388.) Dr. Mochizuki determined that Plaintiff was temporarily and totally disabled for 28 three weeks and recommended physical therapy, which Plaintiff declined. (AR 388.) 2 1 On May 10, 2006, Plaintiff returned to Dr. Mochizuki for a follow-up examination. The 2 treating note indicated that Plaintiff reported that he was experiencing aching of the dorsum of the 3 right wrist and all of the radial side of the right wrist. (AR 381.) His symptoms were aggravated by 4 wrist movement, but the sensation of the right upper extremities was improved. However, Plaintiff 5 reported sensory loss of the left hand. Dr. Mochizuki observed that Plaintiff's right hand was tender 6 to palpation of the dorsum of the right wrist, and there was tenderness to palpation of the extensor 7 digitorum communis and the flexor carpi ulnaris. (AR 381.) Dr. Mochizuki recommended a left 8 carpal tunnel release as well as an injection of the right wrist to alleviate some of the symptoms. 9 (AR 381.) 10 On June 30, 2006, Plaintiff underwent both a left carpal tunnel release and an injection of the 11 flexor carpi ulnaris tendon sheath and extensor digitorum tendon sheath. (AR 367.) On July 13, 12 2006, Plaintiff presented to Dr. Mochizuki for a follow-up examination. (AR 361.) Dr. Mochizuki 13 stated that Plaintiff had a full range of motion in his left hand, and the sensory testing appeared 14 normal. (AR 361.) Plaintiff was to complete a home exercise program, and was to return in three 15 weeks for a follow-up examination. (AR 361.) 16 In July 2006, Plaintiff presented to Dr. Ibarra with complaints of right shoulder pain. (AR 17 275.) A magnetic resonance imaging ("MRI") scan was performed which demonstrated tendinosis 18 of the rotator cuff as well as partial tearing. (AR 275.) 19 On August 3, 2006, Plaintiff presented to Dr. Mochizuki for a follow-up examination. (AR 20 358.) Plaintiff complained of pain in his right hand as well as pain around both his elbows. (AR 21 358.) On examination, Plaintiff had mild swelling of the right palm, but there was a full range of 22 motion in both hands. (AR 358.) Sensory testing results were normal. (AR 358.) Dr. Mochizuki 23 recommended a home exercise program, and again noted that Plaintiff declined physical therapy. 24 (AR 358.) 25 On September 6, 2006, Plaintiff was again examined by Dr. Mochizuki. (AR 355.) Plaintiff 26 presented with complaints of bilateral cervical spine pain, bilateral shoulder pain, and pain in his 27 upper extremities from his elbows to his forearms and hands. (AR 355.) Dr. Mochizuki noted 28 cervical spine tenderness as well as tenderness around the paracervical muscles, the rhomboids, the 3 1 trapezius, and all of the shoulder girdle muscles. (AR 355.) He also noted tenderness to palpation 2 of the triceps, biceps, and extensor musculature of the forearm. However, there was no obvious 3 swelling. (AR 355.) Plaintiff's right hand demonstrated very minimal swelling, but Dr. Mochizuki 4 observed there was tenderness when touching the thenar eminence. (AR 355.) In Plaintiff's left 5 hand, there was tenderness to palpation of the thenar eminence and around the area of the incision; 6 there was also tenderness to palpation of the volar forearm and the dorsum of the wrist. (AR 355.) 7 Dr. Mochizuki completed a physician activity status report indicating that Plaintiff could return to 8 work on September 7, 2006, but he was restricted to no repetitive lifting over five pounds and no 9 pushing or pulling over five pounds of force. (AR 513.) He noted that Plaintiff was unable to grasp 10 repetitively with the entire hand. (AR 513.) 11 On October 1, 2006, Plaintiff presented to Dr. Juliane Tran, a state examining physician, for 12 evaluation. (AR 282-86.) Dr. Tran reported that Plaintiff had back pain with possible chronic left 13 lumbar radiculopathy. (AR 285.) However, Plaintiff had a negative straight leg raising test, which 14 did not indicate acute left lumbar radiculopathy. (AR 285.) Plaintiff had a decreased left ankle 15 reflex, decreased lumbar range of motion with some abnormal sensory examination in the left lower 16 extremity in the left L5 dermatome. (AR 285.) With regard to his hands, Plaintiff had no muscle 17 atrophy, no loss of muscle strength, and the decreased sensation in both his hands was described as 18 non-specific. (AR 286.) Dr. Tran also reported that Plaintiff had probable fibromyalgia, "multiple 19 pain complaints and pain throughout the upper and lower extremities throughout the body with 20 multiple tender points palpated." (AR 286.) Dr. Tran opined that this was quite consistent with 21 fibromyalgia. Dr. Tran also noted that there was no evidence of a rotator cuff tear. (AR 286.) 22 Dr. Tran concluded that Plaintiff was restricted with lifting to no more than 25 pounds 23 occasionally and no more than 10 pounds frequently. Plaintiff was also restricted from activities 24 involving frequent left wrist movement, frequent bending, stooping, kneeling, or crouching. He was 25 restricted from standing or walking more than six hours a day. She did not find that Plaintiff had any 26 sitting restrictions, fingering or grasping restrictions, or restrictions related to overhead work, 27 climbing, balancing, or working with height restrictions. (AR 286.) She also determined that 28 Plaintiff had no visual or environmental restrictions. (AR 286.) 4 1 2 On October 11, 2006, Plaintiff was examined by Dr. Mochizuki who reported nearly identical findings as noted in September 2006. (AR 350.) 3 On October 20, 2006, non-examining state agency consultant Dr. A. M. Khong completed 4 a physical residual functional capacity assessment of Plaintiff. (AR 288-92.) Dr. Khong opined that 5 Plaintiff could (1) occasionally lift and/or carry and pull 20 pounds; (2) frequently lift and/or carry 6 and pull 10 pounds; (3) stand and/or walk about six hours in an eight-hour work day; (4) sit for a 7 total of about six hours in an eight-hour workday; and (5) push and/or pull an unlimited amount. 8 (AR 289.) Although the form requested that the physician explain how and why the evidence 9 supports the limitations listed, nothing was completed with regard to this. (AR 289.) Dr. Khong 10 determined that, while Plaintiff could frequently stoop, he could only occasional climb, balance, 11 kneel, crouch, or crawl. Plaintiff was limited in his ability to "handle," but no explanation as to why 12 Plaintiff was "limited," was not provided. (AR 290.) Rather, Dr. Khong remarked that Plaintiff 13 could perform no frequent handling with the upper left extremity. (AR 290.) 14 On November 28, 2006, chiropractor J. Greg Clark, D.C. completed a questionnaire 15 regarding his observations of Plaintiff's limitations. (AR 296-97.) He provided a statement of 16 Plaintiff's limitations: Plaintiff is precluded from any full-time work at any exertional level; he is 17 able to sit up to four hours in an eight-hour workday; stand or walk for up to two hours eight-hour 18 workday; use his hands to reach less than one-third of an eight-hour workday; push or pull up to five 19 pounds; but can only handle up to five pounds, and he can do no grasping. (AR 297.) 20 On November 29, 2006, Plaintiff presented for a follow-up examination, and Dr. Mochizuki 21 made nearly identical findings on examination as those reported in September 2006. (AR 345.) 22 Plaintiff was given two refills of Vicodin. (AR 345.) In April 2007, Dr. Mochizuki completed 23 another physician activity status report indicating that Plaintiff could return to work with no 24 repetitive lifting over five pounds, no pushing and/or pulling over five pounds of force, and no 25 reaching above the shoulders. (AR 509.) 26 On June 21, 2007, Plaintiff was examined by Dr. James L. Strait for the purposes of Worker's 27 Compensation. (AR 453.) Dr. Strait reported that Plaintiff suffered from degenerative lumbar disc 28 disease status post discectomy at L4-5; degenerative cervical disc disease; minor degenerative 5 1 thoracic disc disease; status post anterior cruciate ligament reconstruction, right knee; and normal 2 examination of both ankles, both elbows, left knee, and both shoulders. (AR 453.) He also noted 3 that Plaintiff had undergone bilateral carpal tunnel releases and was found to have compression of 4 the median nerves at the time of surgery. Dr. Strait stated that these impairments "would preclude 5 [Plaintiff] from repetitive heavy lifting and repetitive heavy grasping with both hands." (AR 455.) 6 B. Administrative Proceedings 7 The Commissioner denied Plaintiff's application initially and again on reconsideration; 8 consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 53- 9 62, 63-66, 72, 78.) 10 1. 11 On July 8, 2008, ALJ Stephen W. Webster held a hearing where Plaintiff testified that he 12 lives with his daughter, completes a few household chores including washing dishes, light laundry, 13 and dusting, and is able to attend to his personal grooming needs without assistance. (AR 34-35.) 14 However, performing the household tasks cause his pain to increase. (AR 34-35.) Plaintiff's Testimony 15 Plaintiff testified that his hands are affected by carpal tunnel syndrome, and when he last 16 attempted to work in May 2008 servicing vacuum cleaners, he only worked for nine days because 17 he could not complete the work required. (AR 37.) He is also affected by fibromyalgia and 18 tendinitis with the right hand worse than the left. (AR 38-39.) As he does not have any medical 19 insurance, Plaintiff is treated by a chiropractor. His pain is constant; he takes some medication; he 20 can only sit for a half-hour at a time; he can stand for one hour at a time and he can walk for 21 approximately one hour. (AR 39-41.) The heaviest thing he can lift is less than five to seven 22 pounds. (AR 41.) When Plaintiff lifts his arms over his head, it increases the pain in his shoulders, 23 and he has difficulty picking up small objects with his fingers. (AR 41.) The longest he can use his 24 hands for an activity such as typing is 30 minutes. (AR 44.) He wears braces on his hands and arms, 25 which have been prescribed by a doctor. The symptoms in his hands worsen despite the braces if 26 his hands are used for long periods of time. (AR 45.) 27 28 6 1 2. 2 A vocational expert ("VE") characterized Plaintiff's past work as a janitor as medium1 and 3 unskilled. (AR 39-40.) A hypothetical person of the same age and with the same education, 4 language, and work experience as Plaintiff who could lift 20 pounds occasionally and 10 pounds 5 frequently; sit, stand, and/or walk six hours out of an eight-hour workday; occasionally bend, stoop, 6 kneel, and crouch; occasionally do flexion and extension of the left lower extremity; do some 7 overhead reaching; but could not do any overhead work would be precluded from performing 8 Plaintiff's past relevant work. (AR 47-48.) However, such a hypothetical person could perform 9 work as an ampoule sealer, a loader of semi-conductor dies, and a paper weight tester. (AR 48.) Vocational Expert Testimony 10 A second hypothetical person with the same restrictions as the first hypothetical person, but 11 with the added restriction of no heavy lifting or repeated heavy grasping for the bilateral upper 12 extremities, could also perform work as an ampoule sealer, a loader of semi-conductor dies, and a 13 paper weight tester. 14 A third hypothetical person with the same restrictions as the first and second hypothetical 15 persons but with the added restriction of having to be able to sit or stand at will would be able to 16 perform work at the three categories of work identified in the first two hypotheticals. The number 17 of these jobs available, however, would be eroded by two-thirds due to the sit- and stand-at-will 18 restriction. (AR 49-50.) 19 A fourth hypothetical person of the same age and with the same education, language, and 20 work experience as Plaintiff who could not complete a 40-hour a week job would be foreclosed from 21 work in the national economy. (AR 50.) 22 A fifth hypothetical person with the same limitations as the first hypothetical person and who 23 is limited to only occasional use of the upper extremities for grasping, manipulation, and forward 24 reaching would also be foreclosed from work in the national economy. (AR 51.) 25 26 27 28 1 "Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. § 404.1567(b). 7 1 A sixth hypothetical person with the same limitations as the first hypothetical person who 2 could only occasionally use his hands for grasping and manipulation would also be foreclosed from 3 work in the national economy. (AR 51.) 4 3. 5 On August 20, 2008, the ALJ issued a decision, finding Plaintiff not disabled since 6 December10, 2005. (AR 9-18.) Specifically, the ALJ found that Plaintiff (1) had not engaged in 7 substantial gainful activity since the alleged onset date of December 10, 2005; (2) has an impairment 8 or a combination of impairments that is considered "severe" based on the requirements in the Code 9 of Federal Regulations; (3) does not have an impairment or combination of impairments that meets 10 or equals one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) cannot 11 perform his past relevant work as a janitor; but (5) can perform alternative work as an ampoule 12 sealer, loader, and weight tester. (AR 9-18.) Plaintiff sought review of this decision before the 13 Appeals Council. On April 9, 2010, the Appeals Council denied review. (AR 1-5.) Therefore, the 14 ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981. 15 C. ALJ Decision Plaintiff's Contentions on Appeal 16 On June 8, 2010, Plaintiff filed a complaint before this Court seeking review of the ALJ's 17 decision. In his opening brief, Plaintiff argues that ALJ erred by (1) improperly rejecting the opinion 18 of Dr. Mochizuki; (2) rejecting Plaintiff's testimony; (3) failing to find that Plaintiff's degenerative 19 disc disease is severe; and (4) finding that Plaintiff could perform alternative work given his 20 limitation for grasping. 21 SCOPE OF REVIEW 22 The ALJ's decision denying benefits "will be disturbed only if that decision is not supported 23 by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 24 1999). In reviewing the Commissioner's decision, the Court may not substitute its judgment for that 25 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 26 determine whether the Commissioner applied the proper legal standards and whether substantial 27 evidence exists in the record to support the Commissioner's findings. See Lewis v. Astrue, 498 F.3d 28 909, 911 (9th Cir. 2007). 8 1 "Substantial evidence is more than a mere scintilla but less than a preponderance." Ryan v. 2 Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). "Substantial evidence" means "such 3 relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 4 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 5 305 U.S. 197, 229 (1938)). The Court "must consider the entire record as a whole, weighing both 6 the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and 7 may not affirm simply by isolating a specific quantum of supporting evidence." Lingenfelter v. 8 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted). 9 APPLICABLE LAW 10 An individual is considered disabled for purposes of disability benefits if he is unable to 11 engage in any substantial, gainful activity by reason of any medically determinable physical or 12 mental impairment that can be expected to result in death or that has lasted, or can be expected to 13 last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 14 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The impairment or 15 impairments must result from anatomical, physiological, or psychological abnormalities that are 16 demonstrable by medically accepted clinical and laboratory diagnostic techniques and must be of 17 such severity that the claimant is not only unable to do his previous work, but cannot, considering 18 his age, education, and work experience, engage in any other kind of substantial, gainful work that 19 exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D). 20 The regulations provide that the ALJ must undertake a specific five-step sequential analysis 21 in the process of evaluating a disability. In the First Step, the ALJ must determine whether the 22 claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). 23 If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment 24 or a combination of impairments significantly limiting her from performing basic work activities. 25 Id. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the ALJ must determine whether the 26 claimant has a severe impairment or combination of impairments that meets or equals the 27 requirements of the Listing of Impairments ("Listing"), 20 C.F.R. 404, Subpart P, App. 1. Id. 28 §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant 9 1 has sufficient residual functional capacity despite the impairment or various limitations to perform 2 her past work. Id. §§ 404.1520(f), 416.920(f). If not, in the Fifth Step, the burden shifts to the 3 Commissioner to show that the claimant can perform other work that exists in significant numbers 4 in the national economy. Id. §§ 404.1520(g), 416.920(g). If a claimant is found to be disabled or 5 not disabled at any step in the sequence, there is no need to consider subsequent steps. Tackett v. 6 Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R. §§ 404.1520, 416.920. 7 8 DISCUSSION A. Weight Given to Dr. Mochizuki's Opinion 9 Plaintiff asserts that the ALJ did not properly assess Dr. Mochizuki's opinion that Plaintiff 10 could perform no repetitive lifting over five pounds. (Plaintiff's Brief (Doc. 14), at 8-9.) Plaintiff 11 contends that the ALJ rejected Dr. Mochizuki's opinion because the ALJ found it to be based on 12 Plaintiff's subjective complaints, and it was not consistent with the objective medical evidence. 13 Plaintiff argues these reasons are inadequate because Dr. Mochizuki treated Plaintiff frequently, 14 performed the carpal tunnel surgical releases on both of Plaintiff's hands, and continued to treat 15 Plaintiff repeatedly following these surgeries. Plaintiff contends there is no basis for the assertion 16 that Dr. Mochizuki's opinions were predicated primarily on Plaintiff's subjective complaints; rather, 17 the record is replete with objective medical testing and procedures. Plaintiff avers that no doctor's 18 opinion in the record conflicts with Dr. Mochizuki's assessment of Plaintiff's lifting limitation; thus, 19 the ALJ was required to adopt the opinion and it should now be credited as a matter of law by the 20 Court. 21 Defendant asserts that the ALJ reasonably concluded that Dr. Mochizuki's opinion was 22 predicated more on Plaintiff's subjective complaints than on objective medical findings. Defendant 23 argues that Dr. Mochizuki's objective findings do not support his ultimate opinion regarding 24 Plaintiff's restriction on repetitive lifting; thus, Dr. Mochizuki's opinion was necessarily based more 25 on Plaintiff's subjective complaints of pain than on objective medical evidence. (Defendant's 26 Opposition Brief (Doc. 15), at 8-11.) Moreover, Dr. Mochizuki's opinion was not consistent with 27 Dr. Tran's and Dr. Strait's opinions that were more consistent with the medical record overall. 28 10 1 1. 2 The medical opinions of three types of medical sources are recognized in Social Security 3 cases: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat 4 the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non- 5 examining physicians)." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, a treating 6 physician's opinion should be accorded more weight than opinions of doctors who did not treat the 7 claimant, and an examining physician's opinion is entitled to greater weight than a non-examining 8 physician's opinion. Id. Where a treating or examining physician's opinion is uncontradicted by 9 another doctor, the Commissioner must provide "clear and convincing" reasons for rejecting the 10 treating physician's ultimate conclusions. Id. If the treating or examining doctor's medical opinion 11 is contradicted by another doctor, the Commissioner must provide "specific and legitimate" reasons 12 for rejecting that medical opinion, and those reasons must be supported by substantial evidence in 13 the record. Id. at 830-31; accord Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 14 2009). The ALJ can meet this burden by setting out a detailed and thorough summary of the facts 15 and conflicting clinical evidence, stating his interpretation thereof, and making findings. Tommasetti 16 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Legal Standard 17 2. 18 Plaintiff asserts that no examining or treating physician's opinion conflicts with Dr. 19 Mochizuki's assessment of how much lifting Plaintiff remains able to perform, and thus the ALJ was 20 required to adopt Dr. Mochizuki’s opinion. (Doc. 14, 9:4-5.) Analysis 21 Dr. Mochizuki opined that Plaintiff was restricted from repetitive lifting over five pounds 22 and pushing and/or pulling five pounds of force. (AR 509-13.) In contrast, examining physician Dr. 23 Tran opined that Plaintiff could lift up to 25 pounds occasionally and up to 10 pounds frequently. 24 (AR 286.) Non-examining physician Dr. Khong opined that Plaintiff could occasionally lift, carry, 25 and/or pull up to 20 pounds and could frequently lift, carry, and/or pull up to 10 pounds. (AR 289.) 26 While not specifying specific weight limitations, Dr. Strait opined that Plaintiff was precluded from 27 repetitive heavy lifting and repetitive heavy grasping. (AR 455.) Ultimately, these doctors' opinions 28 are in conflict as to the degree of Plaintiff's limitation with regard to lifting, carrying, or pulling. 11 1 Thus, the ALJ was required to provide specific and legitimate reasons for rejecting the opinion of 2 Dr. Mochizuki as to Plaintiff's limitation in this regard. See Ryan, 528 F.3d at 1198 ("If a treating 3 or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject 4 it by providing specific and legitimate reasons that are supported by substantial evidence."). 5 The ALJ stated that no weight was given to the opinion of Dr. Mochizuki because it appeared 6 that the opinion was based heavily on subjective allegations that were not fully credible and because 7 it was not consistent with the objective medical evidence. (AR 16.) 8 A mere statement that a treating physician's opinion is not consistent with the objective 9 medical evidence is not a specific or legitimate reason to reject that opinion. Embrey v. Bowen, 10 849 F.2d 418, 422 (9th Cir. 1988) ("To say that medical opinions are not supported by sufficient 11 objective findings or are contrary to the preponderant conclusions mandated by the objective findings 12 does not achieve the level of specificity our prior cases have required, even when the objective 13 factors are listed seriatim."). Defendant asserts that the ALJ found that Dr. Mochizuki's conclusions 14 were not supported by his own treatment records. (Doc. 15, 9:4-6.) Defendant points to various 15 findings made by Dr. Mochizuki that might suggest Plaintiff was not as limited in terms of repetitive 16 lifting as Dr. Mochizuki indicated. Although many of Dr. Mochizuki's findings were recited by the 17 ALJ (see AR 13-14), none of these findings was discussed in rejecting Dr. Mochizuki's opinion nor 18 did the ALJ find that Dr. Mochizuki's opinion was unsupported by his own objective findings. With 19 only a conclusory statement that Dr. Mochizuki's findings were "not consistent with the objective 20 medical evidence," it is impossible to know what rationale or evidence underpinned the ALJ's 21 conclusion. Reciting findings of a doctor and then reaching a conclusion leaves out the analysis 22 which supports the ultimate determination. Embrey, 849 F.3d at 422 ("The ALJ must do more than 23 offer his conclusions. He must set forth his own interpretations and explain why they, rather than 24 the doctors', are correct."). A conclusion by itself is not conducive to judicial review, and the Court 25 cannot create its own rationale or analysis, or adopt rationale or an explanation offered by the 26 Commissioner post hoc, to determine whether the conclusion can be sustained. 27 The Court notes that in Magallanes v. Bowen the Ninth Circuit instructed that an ALJ does 28 not need to recite magic words in rejecting a doctor's opinion, such as, '"I reject Dr. Fox's opinion 12 1 about the onset date because . . . '"; rather, a reviewing court is "not deprived of [its] faculties for 2 drawing specific and legitimate inferences from the ALJ's opinion . . . if those inferences are there 3 to be drawn." 881 F.2d 747, 755 (9th Cir. 1989). In Magallanes, the court concluded that the ALJ's 4 explanations for rejecting the opinion of a doctor were specific and legitimate because the ALJ had 5 "summarized the facts and conflicting clinical evidence in detailed and thorough fashion, stating his 6 interpretation and making findings." Id. 7 This case is distinguishable from Magallanes because here the ALJ made no interpretation 8 of any of the medical evidence or how it might conflict. There is no discussion as to how Dr. 9 Mochizuki's findings were interpreted or what portions of it conflicted with particular objective 10 evidence. For example, while the ALJ recited that Dr. Mochizuki noted Plaintiff had a full range 11 of hand motion and sensory testing was normal, the ALJ provided no discussion regarding how this 12 conflicts with Dr. Mochizuki's opinion that Plaintiff was precluded from repetitive lifting over five 13 pounds. (AR 14.) This is particularly problematic in light of the fact that Dr. Mochizuki continued 14 to observe tenderness on examination after Plaintiff's carpal tunnel surgeries, and Dr. Strait observed 15 in August 2007 that Plaintiff continued "to have abnormal nerve conduction velocity studies 16 bilaterally in the medial nerves, greater on the right than the left." (AR 463.) It is entirely unclear 17 what objective medical evidence the ALJ found to be inconsistent with Dr. Mochizuki's opinion. 18 The ALJ also determined that Dr. Mochizuki's findings were predicated "heavily" on 19 Plaintiff's subjective complaints, and because Plaintiff was not considered credible, the probative 20 value of Dr. Mochizuki's opinion was diminished. (AR 16.) The ALJ's determination does not 21 explain how the evidence indicated that Dr. Mochizuki's opinion was based more on Plaintiff's 22 subjective complaints. Although Defendant offers an explanation and rationale to support the ALJ's 23 ultimate conclusion, this cannot form a basis to affirm the ALJ. See Pinto v. Massanari, 249 F.3d 24 840, 847 (9th Cir. 2001) (court "cannot affirm the decision of any agency on a ground that the agency 25 did not invoke in making its decision"). 26 Moreover, Dr. Mochizuki made numerous objective findings regarding Plaintiff's hands and 27 wrists as well as described his findings during surgery. (See AR 393.) In December 2005, Dr. 28 Mochizuki stated that he reviewed findings from an electromyogram that Plaintiff underwent that 13 1 "demonstrated severe right carpal tunnel syndrome, and mild median neuropathy of the left hand." 2 (AR 235.) He also explained that Plaintiff's "workup has included nerve conduction studies and x- 3 rays." (AR 235.) Following the surgical procedures, Dr. Mochizuki continued to provide care to 4 Plaintiff, conducting physical examinations on several occasions, and reporting objective findings 5 from neurological sensory testing as well as his own observations of Plaintiff upon physical 6 examination. (AR 335, 350, 358, 361.) For example, Dr. Mochizuki reported in October 2006 that, 7 while there was minimal swelling and full range of right-hand motion, there was tenderness in 8 Plaintiff's right hand when touching the thenar eminence. (AR 350.) With regard to Plaintiff's left 9 hand, Dr. Mochizuki observed that it was tender to palpation of the thenar eminence and around the 10 area of the incision, and he observed tenderness on palpation of the volar forearm and dorsum of the 11 left wrist. (AR 350.) 12 In Ryan, 528 F.3d at 1199-1200, the court explained that "an ALJ does not provide clear and 13 convincing reasons for rejecting an examining physician's opinion by questioning the credibility of 14 the patient's complaints where the doctor does not discredit those complaints and supports his 15 ultimate opinion with his own observations." Dr. Mochizuki did not question Plaintiff's complaints 16 of pain and his assessments of Plaintiff appear to be based on physical examinations, objective 17 findings, and his own observations of Plaintiff. Given the ALJ's lack of discussion regarding what 18 factors led him to conclude that Dr. Mochizuki's opinion was heavily predicated on Plaintiff's 19 subjective complaints, this rationale does not meet the requisite level of specificity. It also appears 20 to be inaccurate in that Dr. Mochizuki's opinion is supported by physical examinations and the 21 doctor's own observations of Plaintiff's condition, not merely Plaintiff's subjective complaints. 22 Beyond this, the ALJ determined that Plaintiff was limited to "no repetitive grasping," but 23 the substantial medical evidence that supports this specific limitation was supplied by Dr. 24 Mochizuki, who provided a physician activity status report in September 2006 indicating that 25 Plaintiff was "[u]nable to grasp repetitively with entire hand." (AR 513.) Yet, Dr. Mochizuki's 26 opinion was assigned "no weight" by the ALJ. (AR 16.) Thus, if Dr. Mochizuki's opinion was 27 assigned no weight, it is difficult to understand how his opinion with regard to repetitive grasping 28 was seemingly adopted for purposes of the ALJ's RFC assessment. 14 1 Other medical evidence that the ALJ assigned significant weight indicated that Plaintiff was 2 limited to no frequent handling with the left upper extremity.2 (AR 290.) Even though this 3 limitation is similar to that opined by Dr. Mochizuki, it was not the specific RFC limitation that the 4 ALJ adopted nor was it among the specific hypothetical limitations that were posed to the VE.3 5 Judicial review of the ALJ's assessment of Dr. Mochizuki's opinion is precluded when Dr. 6 Mochizuki's opinion was simultaneously assigned "no weight" but appears to be credited for 7 purposes assessing Plaintiff's limitation of "no repetitive grasping" without any sufficient explanation 8 for the discrepancy. 9 Based on the foregoing, the reasons for assigning "no weight" to Dr. Mochizuki's opinion 10 regarding Plaintiff's limitations were not specific and legitimate. "Such good faith errors inevitably 11 will occur. Reasonable judicial minds sometimes will disagree regarding proper application of the 12 rather imprecise standard of 'specific, legitimate' reasons." Barbato v. Comm'r of Soc. Sec. Admin., 13 923 F. Supp. 1273, 1278 (C.D. Cal. 1996). "[U]nder the rule in Lester, the [medical] opinion will 14 trigger benefits whenever the ALJ's previously stated reasons for rejecting the opinion fall short of 15 the ill-defined 'specific, legitimate' standard." Id. (footnote omitted). "A reviewing court should 16 have discretion to avoid this inequitable result by remanding the case for further administrative 17 proceedings. Remand necessitates delay, but the cost of this delay should be balanced against the 18 risk of an erroneous determination." Id.; see also McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 19 1989) (remanding for further proceedings because Secretary of Health and Human Services was in 20 better position than court to point to evidence in the record to provide specific, legitimate reasons 21 to disregard treating physician's opinion). Accordingly, the Court recommends that discretion be 22 exercised and the case be remanded to the Commissioner for further proceedings. See McAllister, 23 24 25 26 27 28 2 Dr. Strait determined that Plaintiff was precluded from "repetitive heavy grasping" (AR 455), but Dr. Strait's opinion was only afforded "some weight" (AR 16). As the ALJ found that Plaintiff was precluded from all repetitive grasping, it appears that Dr. Strait's opinion was partially rejected in favor of Dr. Mochizuki's more limited "no repetitive grasping" limitation. 3 Notably, each job that the VE identified as alternative work Plaintiff could perform required the ability to frequently handle. However, the inability to frequently handle, as opined by Dr. Khong (AR 290), was not the RFC limitation adopted (despite that Dr. Khong's opinion was assigned significant weight by the ALJ), nor was it posed to the VE in a hypothetical. 15 1 888 F.2d at 603 (holding that court may remand to allow ALJ to provide the requisite specific and 2 legitimate reasons for disregarding medical opinions). 3 B. The Agency Failed to Meet its Burden at the Fifth Step 4 The parties dispute whether the limitation identified in the ALJ's RFC assessment for "no 5 repetitive grasping" precludes the alternative work identified by the VE that requires frequent 6 handling. In essence, Plaintiff contends that jobs with a frequent or constant handling/grasping 7 physical component necessarily require repetitive grasping. Defendant disputes that a limitation on 8 grasping is necessarily a limitation on handling. 9 Every job description in the Dictionary of Occupational Titles ("DOT") contains physical 10 demand components for that particular type of work. Each job is assigned a strength component that 11 identifies the work as sedentary, light, medium, heavy, or very heavy. Beyond the strength 12 component, there are 19 other specific physical demand components utilized in DOT job 13 descriptions that are defined in the "Selected Characteristics of Occupations Defined in the Revised 14 Dictionary of Occupational Titles (1993 ed.)" ("SCODICOT"). These 19 physical demand 15 components include the following: climbing, balancing, stooping, kneeling, crouching, crawling, 16 reaching, handling, fingering, feeling, talking, hearing, tasting/smelling, near acuity, far acuity, depth 17 perception, accommodation, color vision, and field of vision. See SCODICOT APP C. Each 18 description classifies the frequency with which a person performing that job would be required to 19 engage in a particular physical demand component. There are four gradients of frequency: "not 20 present," "occasionally," "frequently," and "constantly." SCODICOT APP C. "Not present" means 21 that the activity or condition does not exist; "occasionally" means that the activity or condition exists 22 up to one-third of the time; "frequently" means that the activity or condition exists from one-third 23 to two-thirds of the time; "constantly" means that the activity or condition exists two-third or more 24 of the time. SCODICOT APP C. 25 Here, the ALJ determined that Plaintiff was limited to "no repetitive grasping." (AR 12.) 26 There is no physical demand component specifically for "grasping." Rather, grasping is subsumed 27 under the definition of handling and the two are not differentiated by the SCODICOT or the DOT. 28 16 1 SCODICOT defines "handling" as "[s]eizing, holding, grasping, turning, or otherwise working with 2 hand or hands." SCODICOT APP C (emphasis added). 3 The VE testified that a hypothetical person of the same age and with the same education, 4 language, and work experience as Plaintiff who could lift 20 pounds occasionally and 10 pounds 5 frequently; sit, stand, and/or walk six hours out of an eight-hour workday; occasionally bend, stoop, 6 kneel, and crouch; occasionally do flexion and extension of the left lower extremity; do some 7 overhead reaching; but could not do any overhead work was precluded from Plaintiff's previous 8 work, but could perform work in the categories of ampoule sealer, weight tester, and loader of semi- 9 conductor dies. Pursuant to the DOT, work in the categories of ampoule sealer and weight tester 10 require frequent handling, i.e., from one-third to two-thirds of the time, and work in the category of 11 a loader of semi-conductor dies requires constant handling, i.e., more than two-thirds of the time.4 12 When the ALJ extended this hypothetical to add a limitation that precluded a person from 13 more than occasional grasping and manipulation, the VE testified that such a person would be unable 14 to perform any of the three identified jobs and would be precluded from "the world of work as 15 normally found in the national economy." (AR 51.) Thus, it appears that the VE considered 16 grasping to be an integral part of "handling," which is the only physical component that, by definition 17 in the SCODICOT, includes "grasping." If grasping is not an integral component of handling, the 18 basis for the VE's testimony is eroded. Further, it is incongruent to conclude that grasping is separate 19 action from handling given the SCODICOT definition of handling and the fact that grasping is not 20 a separate physical component in the DOT. Finally, the medical opinion to which the ALJ assigned 21 significant weight stated that Plaintiff was limited to "no frequent handling" of the left upper 22 extremity. (AR 290.) 23 24 25 26 27 28 4 There appears to be some confusion with regard to jobs in the category of loader of semi-conductor dies. The VE identified the DOT number associated with this job category as "726.687-014." (AR 48.) However, that DOT number does not correspond with "loader of semi-conductor dies." Rather, DOT number "726.687-014" corresponds to work in the category of "plug wirer." See DICOT 726.687-014, 1991 W L 679634. The job category "loader of semiconductor dies" corresponds to DOT number 726.687-030, and this job requires constant handling. See DICOT 726.687-030, 1991 W L 679637. Both parties indicate that all three jobs identified by the VE require frequent handling. (See Doc. 15, 14:2-3; Doc. 17, 2:18-19.) This would be accurate if the VE's testimony related to jobs in the category of "plug wirer," which requires frequent handling. A closer examination of the DOT numbers indicates a mistake in the VE's testimony as to the DOT number for loader of semi-conductor dies. 17 1 The issue presented, therefore, is not whether "grasping" is part of the physical component 2 for "handling" (it is clear by the SCODICOT definition that it is), but rather how the frequency of 3 handling activities (which include grasping) identified by the SCODICOT equates and applies to the 4 ALJ's finding that Plaintiff is limited to "no repetitive grasping." The VE was asked to testify about 5 a hypothetical person's ability to perform work when limited to no more than occasional grasping 6 rather than the ability to work when limited to "no repetitive grasping." It may be inferred that the 7 ALJ posed this particular hypothetical because the ALJ equated "no more than occasional grasping" 8 with "no repetitive grasping." On the other hand, if this were so, then the ALJ would necessarily 9 have had to conclude that Plaintiff was disabled at the Fifth Step given the VE's testimony that a 10 person who could do no more than occasional grasping and manipulation would be precluded from 11 the "world of work." To avoid this ambiguity, the hypothetical should have been posed to the VE 12 in the same way as the ALJ phrased the limitation in the RFC assessment. For a hypothetical to be 13 reliable and have evidentiary value, it must accurately reflect the claimant's limitations. Thomas, 14 278 F.3d at 956; Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). 15 This particular language ambiguity was presented to the court in Macapagal v. Astrue, No. 16 C07-03706 HRL, 2008 WL 4449580, at *2-*4 (N.D. Cal. Sept. 29, 2008). In Macapagal, the 17 plaintiff asserted that the ALJ's RFC finding did not accurately reflect the hypothetical posed to the 18 VE. Id. at *2. The plaintiff asserted this was so because the hypothetical to the VE contemplated 19 an individual capable of "'occasional typing with the left hand,' whereas the ALJ concluded that [the] 20 plaintiff [was] 'precluded from repetitive use of the left hand.'" Id. The VE testified that, given a 21 limitation for "occasional typing with the left hand," the jobs the VE identified, which all required 22 frequent handling, would be eroded by about two-thirds. Thus, there would still be significant jobs 23 in this category that the plaintiff could perform, even with this limitation. Id. at * 4. The plaintiff 24 asserted that a preclusion from repetitive use of the left hand necessarily excluded occasional typing 25 with the left hand. According to the plaintiff, because the hypothetical to the VE did not provide the 26 limitation for repetitive use of the left hand, the VE's testimony was rendered ambiguous. 27 The defendant in Macapagal asserted that a preclusion for repetitive use was not necessarily 28 inconsistent or exclusive of hand use characterized as frequent, i.e., one could perform an action 18 1 frequently but not necessarily repetitiously. Id. at *3. The Commissioner pointed to a medical 2 opinion that stated that the plaintiff could "perform frequent left handling and fingering," and argued 3 it was consistent with the ALJ's finding that the plaintiff was precluded from repetitive use of her 4 left hand. Id. 5 The court determined that the term "repetitive," in the context of hand use "seem[ed] to 6 describe the manner in which a person uses her hands and the type of action required, whereas the 7 term 'occasional' reflects how often a person uses her hands in a particular manner." Therefore, the 8 court reasoned that the hypothetical to the VE "suggest[ed] an individual who could use her left hand 9 occasionally, whereas the [ALJ] found that plaintiff should not use her left hand in a repetitive 10 manner at all, whether occasionally or frequently." Id. at *4. The court concluded that it could not 11 find that the ALJ's RFC determination that the plaintiff was precluded from repetitive use of the left 12 hand was consistent with the hypothetical to the VE which supposed an individual who could 13 occasionally type with the left hand. Id. at *4. The court ordered that the issue be clarified on 14 remand. 15 The court's reasoning in Macapagal is both persuasive and applicable to the facts of this case. 16 Here, the hypothetical posed to the VE supposed an individual who was limited to only occasional 17 grasping and manipulation. The ALJ's RFC for "no repetitive grasping" seems to indicate no 18 repetition of grasping, whether occasional, frequent, or constant. In other words, given that most 19 unskilled, sedentary jobs "require good use of the hands and fingers for repetitive hand-finger 20 actions" (see SSR 83-10, 1983 WL 31251, at * 5), each of the jobs identified by the VE could require 21 a person to frequently perform repetitive grasping. Additionally, it is worth noting that each of the 22 jobs identified by the VE are assigned an "R" component, which represents work that requires 23 "performing repetitive or short-cycle work." In this context, even occasional grasping might 24 constitute repetitious grasping, albeit on an occasional basis. Given this ambiguity, clarification is 25 required on remand. Without clarification, the VE testimony is ambiguous and the agency has not 26 met its burden at the Fifth Step. 27 28 19 1 C. Plaintiff's Credibility 2 Because the Court recommends that this case be remanded for the reasons detailed above, 3 the Court dispenses with an exhaustive analysis of the ALJ's credibility determination. In light of 4 the Court's finding that the ALJ failed to properly evaluate the opinion of Dr. Mochizuki, and 5 because credibility determinations are inescapably linked to conclusions regarding medical evidence, 6 20 C.F.R. § 416.929, the ALJ's credibility finding should also be reversed and the issue remanded. 7 After re-evaluating the medical evidence of record, the ALJ will be in a better position to evaluate 8 Plaintiff's credibility. The ALJ must do more than make general findings; rather, when evaluating 9 a claimant's credibility, the ALJ "must specifically identify what testimony is credible and what 10 testimony undermines the claimant's complaints." Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 11 2006). On remand, the ALJ should properly assess Plaintiff's testimony and provide clear and 12 convincing reasons for rejecting it should such a conclusion be warranted. 13 D. ALJ's Consideration of Plaintiff's Degenerative Disc Disease 14 Plaintiff argues that the ALJ erred by finding that his degenerative disc disease was not a 15 severe impairment at the Second Step of the sequential evaluation. Plaintiff points out that a 2005 16 MRI indicates evidence of degenerative disc disease. Treating notes from Plaintiff's chiropractor 17 indicate that Plaintiff's back condition causes pain, limitations in sitting, standing, and walking and 18 also results in Plaintiff having to lie down for several hours during the day. (Doc. 14, p. 15-16.) 19 Defendant contends that, while the ALJ did not determine whether Plaintiff's degenerative 20 disc disease was severe in the Second Step, the ALJ did consider all the limitations imposed by his 21 back condition, which is reflected in the ALJ's RFC. (Doc. 15, p. 13.) For example, the ALJ 22 determined that Plaintiff was limited to light work with numerous additional limitations including 23 occasional bending, stooping, kneeling, and crouching, and a restriction on any heavy lifting or 24 overhead work. (Doc. 15, at 13.) Defendant argues that Plaintiff has not established that his back 25 condition limits him any further than the limitations assessed by the ALJ as part of the RFC. 26 At the Second Step of the sequential evaluation, the ALJ must determine whether a claimant 27 suffers from a "severe" impairment, i.e., one that significantly limits his physical or mental ability 28 to do basic work activities. 20 C.F.R. § 404.1520. To satisfy this requirement, the claimant must 20 1 prove the existence of a physical or mental impairment by providing medical evidence consisting 2 of signs, symptoms, and laboratory findings; the claimant's own statement of symptoms alone will 3 not suffice. 20 C.F.R. §§ 404.1508, 404.1528. The fact that a medically determinable condition 4 exists does not automatically mean the symptoms are "severe," or "disabling" as defined by the 5 Social Security regulations. See, e.g., Edlund v. Massanari, 253 F.3d 1152,1159-60 (9th Cir. 2001); 6 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 7 At the Second Step, the ALJ determined that Plaintiff had the following severe impairments: 8 bilateral carpal tunnel syndrom; bilateral shoulder derangement; and degenerative joint disease. (AR 9 11.) The ALJ also found that Plaintiff has non-medically determinable impairments of multiple 10 aches and pains. (AR 11.) The ALJ did not determine whether Plaintiff's degenerative disc disease 11 was a medically determinable condition or whether it was severe. So long as the ALJ considered all 12 of the limitations caused by this condition at later steps in the sequential evaluation, the fact that the 13 ALJ erred by not considering the condition at the Second Step is harmless. See Burch v. Barnhart, 14 400 F.3d 676, 682 (9th Cir. 2005) (concluding any error ALJ committed at the Second Step was 15 harmless because the step was resolved in the claimant's favor); Lewis, 498 F.3d at 911 (concluding 16 any failure to list bursitis as severe at the Second Step was harmless error where the ALJ considered 17 the functional limitations of bursitis at the Fourth Step). 18 However, as it is recommended that this case be remanded for other reasons, the ALJ can 19 make a finding at the Second Step of the analysis related to Plaintiff's degenerative disc disease. As 20 Plaintiff's credibility will be reassessed on remand, the ALJ will once again have opportunity to 21 assess the limitations claimed as a result of this impairment and its combination with other 22 impairments. 23 CONCLUSION AND RECOMMENDATION 24 Based on the foregoing, the Court finds that the ALJ's decision is not supported by substantial 25 evidence and is, therefore, RECOMMENDS that the ALJ's decision BE REVERSED and the case 26 be REMANDED to the ALJ to make additional findings. 27 These findings and recommendations are submitted to the district judge assigned to this 28 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within fifteen (15) 21 1 days of service of this recommendation, any party may file written objections to these findings and 2 recommendations with the Court and serve a copy on all parties. Such a document should be 3 captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge 4 will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. 5 § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 6 waive the right to appeal the district judge's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 8 IT IS SO ORDERED. 9 Dated: ie14hj August 8, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22
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