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Francia v. Astrue


November 3, 2010


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on October 15, 2009, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's claim for a period of disability and disability insurance benefits ("DIB"). On November 18, 2009, the parties consented to proceed before the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on July 28, 2010, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and defendant requests that the Commissioner's decision be affirmed. The Court has taken the parties' Joint Stipulation under submission without oral argument.


Plaintiff filed an application for a period of disability and DIB on December 10, 2002. (Administrative Record ("A.R.") 48-50.) Plaintiff claims to have been disabled since December 15, 2001, due to thoracic outlet compression syndrome, impingement syndrome, and possible carpal tunnel syndrome.*fn1 (A.R. 13-14, 53.) Plaintiff has past relevant work experience as a licensed vocational nurse, certified nursing assistant, and cashier/hostess.*fn2 (A.R. 54, 848.)

After the Commissioner denied plaintiff's claims initially and upon reconsideration, plaintiff requested a hearing. (A.R. 37-40, 43-47.) On April 21, 2004, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Sally Reason ("ALJ Reason"). (A.R. 431-59.) On July 15, 2004, ALJ Reason denied plaintiff's claims (A.R. 13-20), and the Appeals Council subsequently denied plaintiff's request for review of ALJ Reason's decision (A.R. 5-9). On October 14, 2005, plaintiff sought review in this Court, which remanded the case for further proceedings in a March 26, 2007 Order ("Remand Order").*fn3 (A.R. 605-34.)

On July 13, 2007, the Appeals Council effectuated the Court's Remand Order and remanded the matter to an administrative law judge for a supplemental hearing, which occurred on October 1, 2007. (A.R. 642, 844-54.) At the hearing, plaintiff again testified before ALJ Reason. Ronald Hatakeyama, a vocational expert, also testified. (A.R. 855-58.) On November 29, 2007, ALJ Reason denied plaintiff's claims. (A.R. 529-40.)

Subsequently, the Appeals Council, in its May 28, 2008 Order, assumed jurisdiction of the case and remanded the matter for further proceedings. (A.R. 668-70.) The Appeals Council based its remand on "a discrepancy in [ALJ Reason]'s finding that [plaintiff] can return to [her] past relevant work as a hostess." (A.R. 668-70.)

On October 8, 2008, plaintiff testified at a hearing before Administrative Law Judge Zane A. Lang (the "ALJ"). (A.R. 806-16, 827-28, 831-33.) Medical expert Michael Stuart Gurvey, M.D., and vocational expert Gregory Jones also testified. (A.R. 804-06, 816-40.) On January 15, 2009, the ALJ denied plaintiff's claims. (A.R. 494-505.) That decision is now at issue in this action.


The ALJ found that plaintiff has not engaged in substantial gainful activity since December 5, 2001, the alleged onset date of her claimed disability. (A.R. 495.) The ALJ further found that, at the time of the decision, plaintiff was a "younger individual" with a "post secondary education." (A.R. 495, 503.) The ALJ determined that plaintiff has the following severe impairments: thoracic outlet syndrome, status post resections of the ribs, bilateral shoulder impingement syndrome, and possible bilateral carpal tunnel syndrome.*fn4 (Id.) The ALJ also determined that plaintiff does not have an impairment or combination of impairments that meets or equals in severity any impairment listed in Appendix 1, Subpart P, Regulations No. 4. (A.R. 496.) Additionally, the ALJ found that plaintiff's allegations regarding her pain and limitations were not entirely credible. (A.R. 497-98, 501-02, 504.)

The ALJ determined that plaintiff has the residual functional capacity ("RFC") for:

work with limitations to lifting/carrying below shoulder level only 10 pounds occasionally and less than 10 pounds frequently; no weights above shoulder level or overhead bilaterally, and that pushing and pulling are limited to the below shoulder level capacities. Additionally, [plaintiff] is limited to occasionally reaching, handling and fingering in all directions (no repetitive fingering such as keyboarding for more than 30 minutes at a time without a 5 minute break); occasionally crawling; no climbing of ladders, ropes or scaffolds; and no work that involves heavy vibrations, such as with jackhammers.

(A.R. 496.)

The ALJ concluded that plaintiff was unable to perform her past relevant work. (A.R. 503.) However, having considered plaintiff's age, education, work experience, and medical limitations, as well as the testimony of the vocational expert, the ALJ found that jobs exist in the national economy that plaintiff could perform, including those of a call out operator and a surveillance system monitor. (A.R. 503-04.) Accordingly, the ALJ concluded that plaintiff was not disabled within the meaning of the Social Security Act through the date of his decision. (A.R. 505.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.


Plaintiff makes the following four claims: (1) the ALJ failed to give appropriate weight to the opinion of plaintiff's treating doctor and the diagnosis of plaintiff's chiropractor; (2) the ALJ improperly evaluated plaintiff's credibility; (3) the ALJ improperly assessed plaintiff's RFC; and (4) the ALJ improperly found that plaintiff can perform work other than her past relevant work.*fn5 (Joint Stipulation ("Joint Stip.") at 3.)

I. The ALJ's Failure To Discuss The Post-Hearing Evidence Constitutes Error

"The SSA's regulations and directives allow for a claimant to submit additional evidence after an administrative hearing but before the ALJ renders [his] decision." Lord v. Apfel, 114 F. Supp. 2d 3, 14 (D.N.H. 2000)(citing 20 C.F.R. §§ 404.936(a), 404.944 (1999); HALLEX I-2-630, 1993 WL 643026 (June 30, 1994); HALLEX I-2-678, 1993 WL 751904 (June 30, 1994)); see also Bates v. Sullivan, 894 F.2d 1059, 1064 (9th Cir. 1990)(noting that the Appeals Council shall consider the entire record, including new and material evidence submitted to it, if the additional evidence relates to the period on or before the date of the ALJ's decision); 20 C.F.R. § 404.970(b).

In this case, the ALJ failed to discuss plaintiff's updated MRI and CT reports, which were submitted to the ALJ prior to his January 15, 2009 decision. Plaintiff submitted the additional evidence to the ALJ on November 29, 2008 --- approximately seven weeks after the October 8, 2008 hearing and six weeks before the ALJ's January 15, 2009 decision. (A.R. 485, 494-505, 800.) The evidence consisted of a CT report*fn6 dated November 12, 2008, and MRI reports dated July 18, 2008, and July 12, 2002.*fn7 (A.R. 484-89.) In pertinent part, the additional evidence appears to show that plaintiff's cervical spine condition has worsened since 2002, particularly at the C5-6 location.*fn8 (A.R. 486-89.)

Although the ALJ addresses the 2002 MRI report in his decision, he does not address the 2008 CT and MRI reports. Accordingly, it is impossible for the Court to determine whether the ALJ rejected or simply ignored that evidence. See Lord, 114 F. Supp. 2d at 14. While the ALJ was entitled to find the additional evidence "unworthy of credit," he was not entitled to find it "unworthy of comment." Id. at 15-16. The C2-C3: Normal.

C3-C4: Right paracentral disc protrusion measures 1-2 mm results in mild central spinal stenosis and mild flattening of the right ventral portion of the cord. No neural foraminal narrowing is present.

C4-C5: Mild decreased disc height is present. Diffuse disc protrusion and asymmetric to the right which measures 1-2 mm AP which results in mild central spinal stenosis and mild mass effect on the right ventral portion of the cord. No neural foraminal narrowing is present.

C5-C6: Mild to moderate decreased disc height is asymmetric to the right. Focal right paracentral disc protrusion measures 3 x 11 mm (AP by wide) which compresses the right ventral portion of the cord and likely affects the exciting right C6 nerve root (series 3, image 52-53). Moderate right neural foraminal narrowing is present. Left neural foramen is widely patent.

C6-C7 to T2-T3: Normal. (A.R. 486.)

The impression of the CT scan was as follows:

1. Focal right paracentral disc protrusion at C5-C6 measuring 3 x 11 mm (AP by wide) which compresses the right ventral portion of the cord and likely impinges the exiting right C6 nerve root.

2. Mild reversal of the cervical lordosis with minimal anterolisthesis at C4-C5.

3. Nonspecific irregular 3 mm nodular density in the apex of the right upper lobe which could be related to an area of scarring or a nodule. Follow-up CT of the chest is recommended in 12 months to document stability. (A.R. 486-87.)

ALJ's failure to discuss the additional evidence, therefore, constitutes error.

II. The ALJ Failed To Give Appropriate Weight To The Opinions And Diagnoses Of Plaintiff's Treating Physician And Chiropractor

Plaintiff contends that the ALJ failed to give appropriate weight to the opinion of her treating orthopedist, John Larsen, M.D., and the diagnosis of her chiropractor, Milton L. Payne, D.C. (Joint Stip. at 3-6.) Specifically, plaintiff argues that, while the ALJ provided specific reasons for rejecting Dr. Larsen's and Dr. Payne's opinions and diagnoses, those reasons were not legitimate. (Joint Stip. at 6.)

A. The ALJ Failed To Properly Consider The Opinion Of Dr. Larsen

It is the responsibility of the ALJ to resolve conflicts in medical testimony and analyze evidence. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In the hierarchy of physician opinions considered in assessing a social security claim, "[g]enerally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(d). The opinions of treating physicians are entitled to the greatest weight, because the treating physician is hired to cure and has a better opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When a treating physician's opinion is not contradicted by another physician, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)(as amended). When contradicted by another doctor, a treating physician's opinion may only be rejected if the ALJ provides "specific and legitimate" reasons supported by substantial evidence in the record. Id.

An ALJ "has a special duty to fully and fairly develop the record and to assure that claimant's interests are considered." Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Pursuant to 20 C.F.R. § 404.1512(e), the Administration "will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, [or] the report does not contain all the necessary information . . . ." See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)(noting that "[i]f the ALJ thought he needed to know the basis of [the doctor's] opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry").

Here, the ALJ erred by rejecting Dr. Larsen's opinion without stating legitimate reasons, supported by substantial evidence of record, for doing so, and without attempting to recontact Dr. Larsen. The ALJ rejected Dr. Larsen's opinion regarding plaintiff's standing, walking, and sitting limitations, as well as her need to be absent from work and her cervical spine condition, because, in the ALJ's view, Dr. Larsen's opinion was not supported by the evidence of record and there were contrary examining and other source opinions. (See A.R. 499-501.) However, in view of plaintiff's submission of additional evidence and the ALJ's failure to comment upon it, the Court does not find the ALJ's reasons to be legitimate or supported by the requisite substantial evidence.

Moreover, it appears that the contrary examining and other source opinions are based on an incomplete medical record, and thus, they cannot constitute substantial evidence. For example, at the October 2008 hearing, Dr. Gurvey testified that plaintiff's central disc bulge did not show a pathology that either explains cervical spine pain or supports Dr. Larsen's "extreme" restrictions. (A.R. 499-500, 821.) Clearly, however, Dr. Gurvey did not review plaintiff's updated MRI and CT reports, which were not yet available, before rendering his opinion. Further, there is no evidence of record to suggest that the ALJ submitted the additional evidence to Dr. Gurvey following the hearing, so that, if appropriate, he could reconsider his opinion regarding plaintiff's condition and limitations. In pertinent part, the additional reports appear to show that plaintiff's central disc bulge has increased in size since her 2002 MRI report, and it is unclear what impact, if any, this additional evidence would have on Dr. Gurvey's opinion. Accordingly, the ALJ's reliance on Dr. Gurvey's opinion, and other treating and source opinions, is improper, because those opinions are not based on a complete medical record and, thus, cannot support a rejection of Dr. Larsen's opinion.

The ALJ's other stated reasons for rejecting Dr. Larsen's opinion --- to wit, that Dr. Larsen's reports contain internal inconsistencies and that his opinion predates plaintiff's surgeries, and plaintiff's condition may have improved --- cannot, without further inquiry, support a rejection of Dr. Larsen's opinion. First, while Dr. Larsen's reports are not at complete odds with one another, his reports do contain different limitations and restrictions,*fn9 particularly with respect to plaintiff's alleged sitting, walking, and standing limitations. However, to the extent that the ALJ found it "curious" that Dr. Larsen's reports contained differing limitations and restrictions, the ALJ should have recontacted Dr. Larsen in accordance with his duty to conduct an appropriate inquiry.

Second, the ALJ's suggestion, that plaintiff's condition "may" have improved following her surgeries, is not a legitimate reason for rejecting Dr. Larsen's opinion. The medical evidence regarding plaintiff's post-surgery condition is equivocal, at best, as evidenced by the updated MRI and CT results, which appear to show that plaintiff's cervical spine condition is worsening. The uncertainty of plaintiff's condition, in view of the updated MRI and CT results, suggests a need for the ALJ to develop the record further.

The ALJ's last reason for rejecting Dr. Larsen's opinion --- that "Dr. Larsen is not an expert in thoracic surgery - which is the primary basis for the various limitations that he assessed" --- is not legitimate. (A.R. 501.) Although Dr. Larsen is not an expert in thoracic outlet syndrome, Dr. Larsen did rely on the diagnoses of two thoracic outlet syndrome experts, Dr. Sam Ahn and Dr. Sheldon Jordan, in assessing plaintiff's limitations. In addition, as plaintiff properly notes, Dr. Gurvey, upon whom the ALJ "heavily" relies in rejecting Dr. Larsen's opinion, also is not a specialist in thoracic outlet syndrome; he is a board certified orthopedic surgeon, just like Dr. Larsen. (Joint Stip. at 5; citing A.R. 361, 804.) While the Ninth Circuit directs that greater weight be given to the opinion of a specialist than a generalist, Dr. Gurvey is not a specialist in thoracic outlet syndrome, and there is no opinion from a thoracic outlet syndrome specialist that contradicts Dr. Larsen's opinion. See generally Bunnell v. Sullivan, 912 F.2d 1149 (9th Cir. 1990). Accordingly, it was improper for the ALJ to reject Dr. Larsen's opinion on this ground.

B. The ALJ Should Revisit His Consideration Of Dr. Payne's Diagnosis Regarding Plaintiff's Headaches

According to the Social Security Regulations, a claimant may submit information from other sources, such as chiropractors, to help the ALJ understand "the nature and severity of [the] impairment" as well as how the "impairment affects [the claimant's] ability to work." See 20 C.F.R. § 404.1513(e). Although a chiropractor is not an "acceptable medical source," the ALJ may use evidence from chiropractors when considering the severity of impairments. See 20 C.F.R. § 404.1513(d). Ultimately, the ALJ has the discretion to determine the appropriate weight to accord the opinion of a chiropractor. Diaz v. Shala, 59 F.3d 307, 313-14 (9th Cir. 1995); Social Security Ruling 06-03p, 2006 SSR LEXIS 5, *7-8.

In the present case, the ALJ apparently gave no weight to the reports from Dr. Payne, plaintiff's chiropractor, who diagnosed plaintiff with, among other medical conditions, headaches. (A.R. 502.) While headaches may not be within the normal purview of a chiropractor, plaintiff saw Dr. Payne for approximately two years, during which time her headaches ("cephalgia") were well-documented.*fn10 To the extent the ALJ attempts to dismiss Dr. Payne's headache diagnosis, because plaintiff's headaches "receive scant mention from any other source," the ALJ errs. Contrary to the ALJ's finding, plaintiff's complaints of headaches are documented by medical sources, including Dr. Ahn (A.R. 114), Dr. Larsen (A.R. 160, 169, 173, 385), and Dr. Hugh Gelabert (A.R. 758). Accordingly, the Court finds that the ALJ's reason for not giving any weight to Dr. Gurvey's diagnosis was not legitimate.

Moreover, to the extent that the ALJ cites Dr. Gurvey's "testimony" as a reason to dismiss plaintiff's headaches and any resulting work restrictions, the ALJ errs. After carefully examining Dr. Gurvey's testimony from the October 2008 hearing, the Court cannot find any testimony from Dr. Gurvey regarding plaintiff's headaches.*fn11

Accordingly, the Court finds that the ALJ should revisit his consideration of Dr. Payne's diagnosis, and should he elect to give no weight to Dr. Payne's opinion, he should set forth legitimate reasons for so doing that are not based on a mischaracterization of the evidence of record. Further, the ALJ should develop the record further to determine whether plaintiff's headaches warrant a work restriction, and if they do, the ALJ should adjust his RFC determination accordingly.

III. The ALJ Improperly Evaluated Plaintiff's Credibility

Once a disability claimant produces objective evidence of an underlying impairment that is reasonably likely to be the source of her subjective symptom(s), all subjective testimony as to the severity of the symptoms must be considered. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)(en banc); see also 20 C.F.R. § 404.1529(a) (explaining how pain and other symptoms are evaluated). "[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each." Robbins, 466 F.3d at 883. The factors to be considered in weighing a claimant's credibility include: (1) the claimant's reputation for truthfulness; (2) inconsistencies either in the claimant's testimony or between the claimant's testimony and her conduct; (3) the claimant's daily activities; (4) the claimant's work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which the claimant complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. § 404.1529(c).

An ALJ may not rely on a plaintiff's daily activities to support an adverse credibility determination when those activities do not affect the claimant's ability to perform appropriate work activities on an ongoing and daily basis. Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990). As the Ninth Circuit noted in Lester, the ALJ must evaluate claimant's "'ability to work on a sustained basis.'" 81 F.3d at 833 (emphasis in original)(citing 20 C.F.R. § 404.1512(a)). A claimant need not be "utterly incapacitated to be eligible for benefits . . . and many home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication." Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989).

The ALJ generally stated three grounds for rejecting plaintiff's credibility: (1) plaintiff's daily activities and "active lifestyle" appear to be inconsistent with her alleged limitations; (2) plaintiff's use of her pain medications does not correspond with the level of pain asserted; and (3) plaintiff's symptoms do not correlate with objective, medical findings. (A.R. 498.) These reasons, while specific, are not legitimate and do not constitute clear and convincing reasons based on substantial evidence as required.

The ALJ's first ground is not legitimate, because plaintiff's daily activities are not, contrary to the ALJ's finding, inconsistent with her reported limitations. To support his adverse credibility finding on this ground, the ALJ asserts, for example, that "it appears that driving would be precluded if [plaintiff]'s use of her extremities were as limited as she suggests - and if her medications had such adverse affect." (A.R. 498.) He further states that plaintiff's "historically rather active lifestyle since the alleged onset date also tends to minimize her claims as to the frequency, intensity and duration of headaches or effects of medication." (Id.)

At the October 2008 hearing, plaintiff testified that she drives her daughter two blocks to the bus stop every day and drives two blocks to her physical therapy session once a week. (A.R. 809-10.) Additionally, plaintiff testified to the following limitations: she can sit, stand, and walk for 30 minute increments each; she has a lifting capacity of less than 10 pounds; and she has problems using her hands ---such that she cannot keyboard for more than 10-15 minutes and cannot open a water bottle without a hand grip. (A.R. 497, 815-16.) Plaintiff noted that she has pain in her neck, shoulders, and lower back, and while medications provide temporary relief, they make her drowsy and lightheaded. (A.R. 811-13.)

Contrary to the ALJ's finding, the Court does not find the side effects of plaintiff's medications and her self-reported limitations to be inconsistent with the scant amount of time she spends driving.*fn12 See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (noting "that the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from [plaintiff's] credibility as to her overall disability").

Further, the Court does not find that plaintiff leads a particularly "active lifestyle." Beyond her limited, regular driving, plaintiff: performs light chores around the house, consisting of dusting, wiping, and washing laundry; goes grocery shopping once or twice a week; and cooks three to four times a month. (A.R. 810-11.) Plaintiff's limited daily activities --- which the ALJ noted that plaintiff performs slowly and with frequent rests (A.R. 498) --- do not appear to be inconsistent with her alleged medication side effects of drowsiness and lightheadedness, particularly in view of the fact that plaintiff only takes the stronger medications, Vicodin and Flexeril, two to three times a week (A.R. 832). Likewise, plaintiff's daily activities do not appear to be at odds with her self-reported daily headaches, which last for one to two hours a day. (A.R. 812.) Critically, the ALJ fails to explain how plaintiff's basic activities and light household chores translate into the ability to perform full- time work.*fn13 See Fair, 885 F.3d 602. This constitutes error.

The ALJ further attempts to reject plaintiff's credibility by asserting that, "[if plaintiff] had the level of pain asserted, it would seem that she would take [her pain medications] more." (A.R. 498.) The ALJ's argument fails for several reasons. First, although not mentioned in the ALJ's decision, plaintiff testified at the October 2008 hearing that she takes the pain medication Neurontin daily. (A.R. 832.) Second, while plaintiff did testify that she takes Vicodin and Flexeril only two to three times a week, there is no evidence of record to support the ALJ's implication that she limits her use, because she is not in pain. (Id.) Rather, the evidence of record suggests that plaintiff limits her use of these strong and addictive medications, because they make her feel lightheaded and drowsy. (A.R. 812.) Third, plaintiff testified that the pain she experiences is often related to her daily activities. (A.R. 558.) Plaintiff noted, for example, that if she sits for too long, she will experience heavy pressure on her neck and shoulders, her muscles will begin to pinch, and this will cause her to have a headache. (Id.) Thus, it follows that to the degree plaintiff can adjust her position throughout the day --- a limitation which the ALJ does not provide for in his RFC determination --- she can avoid situations that would trigger her need for pain medications. Accordingly, the Court rejects the ALJ's second ground for discrediting plaintiff's credibility because it is neither clear nor convincing.

Lastly, the ALJ attempts to discredit plaintiff by asserting that plaintiff "testified to medical problems that have no foundation and for which she has not been treated, particularly low back pain." (A.R. 498.) As discussed supra, the updated MRI and CT results, which appear to show that plaintiff's cervical spine condition has worsened since 2002, were not considered. This additional evidence constitutes objective medical findings that could support plaintiff's reported symptoms, particularly her back pain.*fn14

IV. The ALJ Must Review And Reconsider Plaintiff's RFC And Plaintiff's Ability to Perform "Other Work"

Based on the foregoing, there are several matters that the ALJ needs to review and reconsider on remand. As a result, the ALJ's conclusion regarding plaintiff's RFC and her capacity to perform "other work" may change. Therefore, the Court does not reach plaintiff's third and fourth claims, to wit, that the ALJ erred in determining plaintiff's RFC, and the ALJ erred in finding plaintiff can perform work other than her past relevant work. To properly review and reconsider these issues, the ALJ needs to consider the additional evidence and determine what weight, if any, the evidence has on his evaluations with respect to the opinion of plaintiff's treating doctor, the diagnosis of plaintiff's chiropractor, and plaintiff's credibility. Further, to the extent that plaintiff's RFC is reassessed, additional testimony from a vocational expert likely will be required to determine whether plaintiff can perform work other her past relevant work.

V. Remand Is Required

The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). However, where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. at 1179-81.

Here, remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for further proceedings is appropriate if enhancement of the record would be useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (remand appropriate to remedy defects in the record).*fn15

On remand, the ALJ must correct the above-mentioned deficiencies and errors. Specifically, the ALJ needs to: (1) revisit his finding that plaintiff's cervical spine impairment was not "severe"; and (2) in view of the new evidence, review and reconsider his evaluation of both the opinion of Dr. Larsen and plaintiff's credibility. In addition, the ALJ should revisit his evaluation of Dr. Payne's diagnosis, and recontact Dr. Larsen to address any question he might have regarding Dr. Larsen's findings and/or any perceived inconsistencies between Dr. Larsen's 2003 and 2004 reports. After correcting the above errors and deficiencies, the ALJ needs to reassess plaintiff's RFC. Further, additional testimony from a vocational expert likely will be needed to determine what work, if any, plaintiff can perform.

Lastly, in view of the additional evidence, the ALJ should have a consulting physician examine plaintiff and look at the new records to see if there is any support for plaintiff's alleged limitations.


Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.

IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.


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