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Charles R. Jacobs v. Michael J. Astrue

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 14, 2011

CHARLES R. JACOBS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

(Docs. 1, 18)

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for disability insurance benefits ("DIB") payments pursuant to Title II of the Social Security Act (the "Act"). 42 U.S.C. §§ 401, et seq. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

FACTUAL BACKGROUND

Plaintiff was born in 1967, has a high school education, and previously worked as a correctional officer and as a driver/carrier for Airborne Express. (Administrative Record ("AR") 20, 145.) On January 8, 2007, Plaintiff filed an application for DIB, alleging disability beginning September 1, 2006, due to high blood pressure, an enlarged heart, and migraines. (See AR 117-46.)

On August 3, 2006, Dr. Pam Janda diagnosed Plaintiff with elevated blood pressure, osteopenia, and hyperlipidemia.*fn2 (AR 236.) On August 29, 2006, Plaintiff was again examined by Dr. Janda and reported dizziness, pain in his left ear radiating to his left eye, vomiting, and feelings of weakness and clamminess. (AR 235.) Dr. Janda referred Plaintiff to the emergency room to rule out a heart attack. (Id.) In emergency care, Plaintiff was administered an electrocardiogram ("ECG"), a computed tomography ("CT") scan, a spinal tap, and x-rays of his chest. (AR 209-31.) The results of the CT scan were negative (AR 220), x-rays of his chest revealed a "[p]robable right pericardial fat-pad[,]" but "[n]o accute cardiopulmonary disease identified," (AR 221) and the ECG results were normal (AR 209). Plaintiff was discharged from the emergency room the same day he was admitted. On September 1, 2006, Plaintiff saw Dr. Janda for follow-up treatment after his emergency room visit. (AR 234.) Dr. Janda assessed Plaintiff with hypertension and noted that his labyrinthitis*fn3 was improved. (Id.)

On March 25, 2007, a state psychiatrist, Dr. Ekram Michiel, examined Plaintiff who reported that he started to feel depressed when he lost his job in September 2006. (AR 239.) Following an examination, Dr. Michiel diagnosed Plaintiff with depressive disorder, NOS but opined that Plaintiff is able to maintain attention and concentration and can carry out simple job instructions: "The claimant is able to relate and interact with co-workers, supervisors[,] and the general public. The claimant is unable to carry out an extensive variety of technical and/or complex instructions." (AR 241.)

Also in March 2007, state agency consultant, R. J. Feder, reviewed Plaintiff's medical records and opined that he was able to do simple repetitive tasks, given his physical and mental limitations. (AR 238.)

On April 11, 2007, a state agency psychiatrist, Dr. G. F. Johnson, completed a Psychiatric Review Technique form and a Mental Residual Functional Capacity Assessment. (AR 242-55.) Dr. Johnson indicated that Plaintiff experienced mild limitations in restrictions of his activities of daily life and in maintaining social functioning. (AR 250.) Dr. Johnson also indicated that Plaintiff had moderate difficulties in maintaining concentration, persistence, or pace. (Id.) Further, Plaintiff was found to be moderately limited in his ability to (1) understand, remember, and carry out detailed instruction, (2) maintain attention and concentration for extended periods, (3) perform activities within a schedule, maintain regular attendance, and be punctual with customary tolerances, (4) complete a normal word day and work week without interruptions from psychologically based symptoms and to perform at a consistent pace, (5) accept instructions and respond appropriately to criticism from supervisors, and (6) respond appropriately to changes in the work settings. (AR 253-54.)

On April 25, 2007, the Commissioner denied Plaintiff's application for disability. (AR 96-100.) On June 20, 2007, Plaintiff requested reconsideration (AR 103), but this request was denied (AR 104).

In August and September 2007, state agency consultants, Drs. A. Garcia and Charles Francchia, opined that Plaintiff had no severe physical impairments, but his mental functioning was limited to simple repetitive tasks. (AR 310-11.)

On October 24, 2007, Plaintiff requested a hearing with an Administrative Law Judge ("ALJ"). (AR 110). Prior to the hearing before the ALJ, additional medical records from the Department of Veterans Affairs ("VA") were added to the record. The VA records span the period between February 5, 2007, and October 10, 2008. (AR 256-309, 312-87.) The records indicate that Dr. Gurcharan P. Gill has treated, and continues to treat, Plaintiff for various medical conditions. Dr. Gill has diagnosed Plaintiff as having a mood disorder, hypertension, hyperlipidemia, hypogonadism, allergic rhinitis, and chronic fatigue syndrome ("CFS"). (AR 270, 338, 345, 351, 376, 394, 473.) On April 6, 2007, as part of Plaintiff's treatment, he was placed on a low dose of Prozac for his mood disorder and was administered a testosterone replacement. (AR 273.) On April 27, 2007, Plaintiff reported to Dr. Gill that he was suffering from fatigue, but no diagnosis of CFS was noted. (AR 270.) On January 18, 2008, Dr. Gill diagnosed Plaintiff with CFS. Dr. Gill proceeded to diagnose Plaintiff with CFS on subsequent occasions in July (AR 351), August (AR 345), and October 2008 (AR 338).

On January 22, 2009, a hearing was held before ALJ Bert C. Hoffman, Jr. (AR 27-63.) Plaintiff testified that he was currently working as an in-home care provider through In Home Supportive Services, and he lives with his client and her son. (AR 20, 32, 160.) As an in-home provider, Plaintiff works about two hours per day, assisting his client with her grocery shopping, medications, driving her to doctors' appointments, cooking one to two meals per day, and occasionally administering a shot for her asthma. (AR 36, 38-40.) He does not feel that he could work at any job for eight hours per day, five days per week. (AR 43 ("I don't like work. I just don't like being around people anymore. I'd rather be by myself.").) He has dizzy spells lasting one to two hours which affects his ability to walk and stand. (AR 47.) He has three to four dizzy spells per day, and each requires him to lie down. (AR 47.) The dizziness began when he started taking medication for his hypertension. (AR 48.) He has tried additional medication to control the dizziness, but it makes him sleepy. (AR 49.) With regard to his CFS, he feels tired "pretty much every day." (AR 49.) When he experiences this tiredness, he must lie down or "sit and recline back." (AR 50.) He has dealt with CFS for approximately two years, but he also has a "hormone deficiency that causes fatigue." (Id.) When Plaintiff does rest or sleep, it is not always restful. Sometimes, despite being fatigued, he cannot sleep at all and experiences insomnia. (Id.) He can concentrate on a task for only five to ten minutes after which he needs to take a break for approximately an hour. (AR 61.)

On March 26, 2009, the ALJ issued a decision, finding Plaintiff not disabled since the alleged date of onset of his disability on September 1, 2006. (AR 12-26.) Specifically, the ALJ found that Plaintiff (1) has not engaged in substantial gainful activity since he applied for DIB; (2) has an impairment or a combination of impairments that is considered "severe" based on the requirements in the Code of Federal Regulations; (3) does not have an impairment or combination of impairments that meets or equals one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1;

(4) could not perform his past relevant work; but (5) has the residual functional capacity ("RFC") *fn4 to perform a full range of work at all exertional levels, limited to simple repetitive tasks; and (6) can perform jobs that exist in significant numbers in the national economy. (AR 7-15.)

Plaintiff sought review of this decision before the Appeals Council. In support of his request for review, Plaintiff submitted a letter from Dr. Gill dated May 14, 2009, that stated the following:

The above patient has been under my care for several years. He has Chronic Fatigue Syndrome which has been recalcitrant to all medical management and evaluation. He[,] in addition[,] has [m]ood disorder and [Post Traumatic Stress Disorder] which compromises his functional status. He has not been able to work in any vocational capacity and I have had no reason to believe that he is malingering. (AR 394.)

On September 9, 2009, the Appeals Council reviewed the newly submitted evidence, but denied review stating that, while it had considered the letter from Dr. Gill, it found that "this information does not provide a basis for changing the Administrative Law Judge's Decision." (AR

2.) Therefore, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981.

On October 13, 2009, Plaintiff filed a complaint before this Court seeking review of the ALJ's decision. Plaintiff argues that the ALJ erred by failing to properly assess his CFS condition.

SCOPE OF REVIEW

The ALJ's decision denying benefits "will be disturbed only if that decision is not supported by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). In reviewing the Commissioner's decision, the Court may not substitute its judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must determine whether the Commissioner applied the proper legal standards and whether substantial evidence exists in the record to support the Commissioner's findings. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

"Substantial evidence is more than a mere scintilla but less than a preponderance." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The Court "must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted).

REVIEW

An individual is considered disabled for purposes of disability benefits if he or she is unable to engage in any substantial, gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted, or can be expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The impairment or impairments must result from anatomical, physiological, or psychological abnormalities that are demonstrable by medically accepted clinical and laboratory diagnostic techniques and must be of such severity that the claimant is not only unable to do her previous work, but cannot, considering her age, education, and work experience, engage in any other kind of substantial, gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).

The regulations provide that the ALJ must undertake a specific five-step sequential analysis in the process of evaluating a disability. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or a combination of impairments significantly limiting her from performing basic work activities. Id. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. 404, Subpart P, App. 1. Id. §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient RFC despite the impairment or various limitations to perform her past work. Id. §§ 404.1520(f), 416.920(f). If not, in Step Five, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in significant numbers in the national economy. Id. §§ 404.1520(g), 416.920(g). If a claimant is found to be disabled or not disabled at any step in the sequence, there is no need to consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R. §§ 404.1520, 416.920.

DISCUSSION

A. Parties' Contentions

Plaintiff asserts that the ALJ improperly ignored the opinion of Plaintiff's treating physician, Dr. Gill, that Plaintiff suffers from CFS, and, therefore, failed to determine that Plaintiff's CFS is a medically determinable impairment.(Plaintiff's Brief ("Br.") at 5-7.) The Commissioner asserts that the "ALJ properly did not discuss Plaintiff's alleged CFS because there was no evidence in the record to indicate that CFS was a medically determinable impairment." (Commissioner's ("Comm'r's") Br. at 4:11-12.)

B. Medically Determinable Impairment

1. Social Security Ruling 99-2p

The Commissioner contends that CFS can only constitute a medically determinable impairment when it is accompanied by medical signs or laboratory findings as explained in Social Security Ruling ("SSR") 99-2p: Titles II and XVI: Evaluating Cases Involving Chronic Fatigue Syndrome (CFS), 1999 WL 271569.*fn5 The Commissioner asserts that there are no such medical signs or laboratory findings in the record, and the ALJ, therefore, was not required to discuss Plaintiff's CFS diagnoses. (Comm'r's Br. at 4:10-11.)

SSR 99-2p was issued for the purpose of restating and clarifying the policies of the Social Security Administration for developing and evaluating claims for disability based on CFS. SSR 99- 2p, 1999 WL 271569, at *1-2. The Ruling explains that the Centers for Disease Control and Prevention ("CDC") has established criteria to use as an identification tool to diagnose CFS. The CDC criteria include a requirement that four or more of a specific list of symptoms should be present to support a diagnosis for CFS. Id. SSR 99-2p explains the following:

Under the CDC definition, the hallmark of CFS is the presence of clinically evaluated, persistent or relapsing chronic fatigue that is of new or definite onset (i.e., has not been lifelong), cannot be explained by another physical or mental disorder, is not the result of ongoing exertion, is not substantially alleviated by rest, and results in substantial reduction in previous levels of occupational, educational, social, or personal activities. Additionally, the current CDC definition of CFS requires the concurrence of 4 or more of the following symptoms, all of which must have persisted or recurred during 6 or more consecutive months of illness and must not have pre-dated the fatigue:

Self-reported impairment in short-term memory or concentration severe enough to cause substantial reduction in previous levels of occupational, educational, social, or personal activities;

Sore throat;

Tender cervical or axillary lymph nodes;

Muscle pain;

Multi-joint pain without joint swelling or redness;

Headaches of a new type, pattern, or severity;

Unrefreshing sleep; and Postexertional malaise lasting more than 24 hours. . . .

Under the CDC definition, the diagnosis of CFS can be made based on an individual's reported symptoms alone once other possible causes for the symptoms have been ruled out. However, the foregoing statutory and regulatory provisions require that, for evaluation of claims of disability under the Act, there must also be medical signs or laboratory findings before the existence of a medically determinable impairment may be established.

Id.

SSR 99-2p provides guidance as the adjudication of whether a claimant's CFS represents a medically determinable impairment. To that end, SSR 99-2p provides examples of the types of medical signs and laboratory findings that support a finding that an individual with CFS has a medically determinable impairment. In terms of evaluation by the adjudicator, SSR 99-2p provides the following:

For purposes of Social Security disability evaluation, one or more of the following medical signs clinically documented over a period of at least 6 consecutive months establishes the existence of a medically determinable impairment for individuals with CFS: * Palpably swollen or tender lymph nodes on physical examinations;

* Nonexudative pharyngitis

* Persistent, reproducible muscle tenderness on repeated examinations, including the presence of positive tender points; or

* Any other medical signs that are consistent with medically accepted clinical practice and are consistent with the other evidence in the case record.

[T]he following laboratory findings establish the existence of a medically determinable impairment in individuals with CFS:

* An elevated antibody titer to Epstein-Barr virus (EBV) capsid antigen equal to or greater than 1:5120, or early antigen equal to or greater than 1:640;

* An abnormal magnetic resonance imaging (MRI) brain scan;

* Neurally mediated hypotension as shown by tilt table testing or another clinically accepted form of testing; or,

* Any other laboratory findings that are consistent with medically accepted practice and are consistent with the other evidence in the case record; for example, an abnormal exercise stress test or abnormal sleep studies, appropriately evaluated and consistent with the other evidence in the case record.

SSR 99-2p, 1999 WL 271569, at *3. It is this framework that the adjudicator applies to disability evaluations for CFS.

2. Failure to Discuss and Evaluate Significant Probative Evidence

An ALJ has a duty to explain his or her decisions and must do more than simply offer conclusions. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). Typically, this burden is met by setting out a "detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. While the ALJ has no duty to discuss all of the evidence contained in the record, he or she must explain why "significant probative evidence has been rejected." Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (per curiam) (internal quotation marks omitted).

Here, the ALJ explicitly found that Plaintiff's depressive disorder was a medically determinable impairment. (AR 17.) However, in considering Plaintiff's impairments, the ALJ did not acknowledge the multiple diagnoses for CFS by Plaintiff's treating physician. Multiple diagnoses of CFS by a treating physician represent significant evidence as to Plaintiff's claim that he suffers from disabling fatigue. Further, multiple diagnoses rendered by a treating physician are at least facially probative to establish the existence of a medically determinable condition -- after all, the physician deemed the condition to be medically determinable as indicated by repeated diagnoses.

See Johnson v. Astrue, No. C-07-2387 EMC, 2008 WL 1885817, at *6 (N.D. Cal. Apr. 25, 2008) (error in failure to discuss myofascial pain syndrome diagnosis by treating physician as it was both probative and significant).

Moreover, the ALJ's complete silence as to Plaintiff's diagnoses for CFS is an implicit rejectionof Dr. Gill's opinion that Plaintiff does suffer from a medically determinable impairment diagnosed as CFS. Not only is this medical evidence significant and facially probative, it is typically entitled to great weight because it was offered by a treating physician. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (opinion of treating physician is afforded the greatest weight because "he is employed to cure and has a greater opportunity to know and observe the patient as an individual") (internal quotation marks omitted). While the ALJ was entitled to reject Dr. Gill's opinion, he was obligated to state reasons for doing so. Reddick, 157 F.3d at 725. Total silence does not meet this burden.

Nonetheless, the Commissioner argues that the ALJ had no duty to even discuss Dr. Gill's diagnoses of Plaintiff's CFS because the totality of the medical evidence does not support Dr. Gill's medical opinion. For example, Dr. Gill's multiple diagnoses for CFS are not accompanied and supported by objective medical findings or any stated rationale. See Thomas v. Barnart, 278 F.3d 947, 957 (9th Cir 2002) ("The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings."). (See Comm'r's Br. at 5:21 - 6:1.) The Commissioner also points out that the record does not contain the objective medical signs or laboratory findings required by the CDC and SSR 99-2p for confirming a diagnosis of CFS and considering whether it represents a medically determinable impairment.*fn6 (See Comm'r's Br. at 6-7.)

None of these reasons for rejecting Dr. Gill's opinion was offered by the ALJ. The ALJ was completely silent as to Dr. Gill's repeated diagnoses of Plaintiff's CFS condition and whether the diagnoses met the requirements to establish a medically determinable impairment pursuant to the Social Security Administration statutory and regulatory framework. Even the ALJ's summary of the facts contains no reference to these diagnoses despite the fact that the ALJ acknowledged medical records generated by Dr. Gill at the VA as to Plaintiff's other conditions. (See AR 22.)

The Ninth Circuit has repeatedly emphasized the "bedrock principle of administrative law" that a "reviewing court can evaluate an agency's decision only on the grounds articulated by the agency." Ceguerra v. Sec'y of Health & Human Servs., 933 F.2d 735, 738 (9th Cir. 1991); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (noting that a reviewing court is "constrained to review the reasons the ALJ asserts," and an ALJ decision cannot be affirmed on the basis of evidence he did not discuss); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001) (an agency decision cannot be affirmed on the ground that the agency did not invoke in making its decision); Barbato v. Comm'r of Soc. Sec., 923 F. Supp. 1273, 1276 n.2 (C.D. Cal. 1996) (remand is appropriate when a decision does not adequately explain how a decision was reached, "[a]nd that is so even if [the Commissioner] can offer proper post hoc explanations for such unexplained conclusions," for "the Commissioner's decision must stand or fall with the reasons set forth in the ALJ's decision, as adopted by the Appeals Council") (citations omitted).

The Court cannot infer from the ALJ's silence as to Plaintiff's diagnosed CFS whether (1) the ALJ meant to determine that the CFS diagnoses rendered by Dr. Gill lacked probative value for reasons similar to those asserted by the Commissioner here on appeal, or (2) the ALJ accidentally overlooked the issue and failed to properly consider Plaintiff's diagnosed CFS condition and the resulting symptoms. The failure of the ALJ to at least consider Dr. Gill's opinion, which was relevant to determine whether Plaintiff suffers from a medically determinable impairment for CFS, was error. Although the ALJ was free to reject Dr. Gill's diagnoses if he set forth clear and convincing reasons for doing so,*fn7 the diagnosis cannot simply be ignored. Lingenfelter, 504 F.3d at 1030 (finding legal error where ALJ only "briefly mentioned" the opinion of one treating physician and "did not acknowledge" the other at all); O'Connor v. Astrue, No. C-09-01508 JCS, 2010 WL 3785433, at *10 (N.D. Cal. Sept. 27, 2010) (error for ALJ to ignore treating physician's diagnosis for PTSD "without providing specific and legitimate reasons").

3. Prejudicial Error

Finally, the Court cannot conclude with any confidence that the failure to consider Plaintiff's diagnoses for CFS was harmless. Stout v. Comm'r of Soc. Sec., 454 F.3d 1050, 1055-56 (9th Cir. 2006) (error is harmless when it is clear from the record that ALJ's error was "inconsequential to the ultimate non-disability determination"). The Commissioner appears to assert that, even if the ALJ had addressed Dr. Gill's diagnoses for CFS, there is no other evidence in the record, beyond Dr. Gill's bare diagnoses, evidencing that Plaintiff's condition was a medically determinable impairment under the SSA regulatory framework and SSR 99-2p.

As set forth above, the Court cannot affirm the ALJ's rejection of a treating physician's opinion on reasoning and grounds not offered by the ALJ. Additionally, further evidence may be required once the ALJ considers the issue. CFS is a particularly difficult condition to diagnose and assess -- hence the need for the CDC standards and the issuance of an SSA Ruling to provide adjudicators with guidance regarding the analysis of CFS. See, e.g., Walker v. Astrue, 2008 WL 2368675, at * 2 (C.D. Cal. June 10, 2008) ("SSR 99-2p attempts to reconcile the requirements of the Social Security Act with the practicalities of CFS, a disorder that is difficult to diagnose."). When the ALJ considers the diagnoses for CFS, it is his duty to determine whether more information is necessary to properly assess whether Plaintiff's condition amounts to a medically determinable impairment. See 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1) ("We 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, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.") (emphasis added).

Plaintiff did not undergo any consultative examinations with any physicians after Dr. Gill diagnosed him with CFS, nor was his medical record reviewed by any physicians following the diagnoses. In other words, no other physician has had an opportunity to consider whether Plaintiff meets the diagnostic criteria for CFS. Further, no additional information regarding how Dr. Gill arrived at his diagnoses was sought. It is the province and the duty of the ALJ to weigh the medical evidence and assess the need for further evidentiary development. The Court cannot divine whether the ALJ would have found a need to develop further evidence had he considered Plaintiff's diagnoses for CFS.

Further, if Plaintiff's CFS was overlooked for purposes of deciding whether it was a medically determinable impairment, any symptoms associated with the CFS would not necessarily have been considered at subsequent steps of the sequential evaluation, whereas even non-severe medically determinable impairments and the associated symptoms are considered in subsequent steps in the evaluation process. See 20 C.F.R. § 404.1545(e) ("we will consider the limiting effects of all your impairment(s), even those that are not severe, in determining your residual functional capacity"). The ALJ's decision does not indicate a consideration of Plaintiff's alleged fatigue other than to simply recite it in a factual summary of Plaintiff's testimony. (AR 21 ("He alleges he gets tired every day, and has to sit in a recliner.").) In other words, the Court cannot determine that the ALJ considered all the alleged symptoms of Plaintiff's CFS and still concluded that Plaintiff was not disabled, regardless of whether Plaintiff's CFS amounted to a medically determinable impairment. As a result, the Court cannot find that the ALJ's failure to consider Plaintiff's diagnoses for CFS and whether such diagnoses represent a medically determinable condition did not affect the disability determination. Stout, 454 F.3d at 1055-56.

C. Remand is Required

"The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). In Social Security cases, the decision to remand to the Commissioner for further proceedings or simply to award benefits is within the discretion of the court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). "If additional proceedings can remedy defects in the original administrative proceedings, a social security case should be remanded. Where, however, a rehearing would simply delay receipt of benefits, reversal [and an award of benefits] is appropriate." Id. (alteration in original) (internal quotation marks omitted); see also Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988) ("Generally, we direct the award of benefits in cases where no useful purpose would be served by further administrative proceedings, or where the record has been thoroughly developed." (citation omitted)).

The ALJ's failure to consider Dr. Gill's diagnoses of CFS and whether Plaintiff's CFS represents a medically determinable impairment was error, but this error can be remedied on remand. The matter shall be remanded so that the ALJ may consider Plaintiff's diagnoses for CFS, weigh Dr. Gill's opinion, and assess any need for further medical evidence.On remand, the ALJ will also have an opportunity to consider Dr. Gill's additional opinion that was associated with the record after the hearing that the ALJ was previously unable to review. (AR 394.)

CONCLUSION

Based on the foregoing, Based on the foregoing, the Court finds that the ALJ's decision is not supported by substantial evidence and is, therefore, REVERSED and the case REMANDED to the ALJ for further proceedings consistent with this order. The Clerk of this Court is DIRECTED to enter judgment in favor of Plaintiff Charles R. Jacobs and against Defendant Michael J. Astrue, Commissioner of Social Security.

IT IS SO ORDERED.


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