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Mary Ann Parker v. Carolyn W. Colvin


March 26, 2013


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


Plaintiff filed a Complaint on November 14, 2011, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for a period of disability and disability insurance benefits ("DIB"). On December 19, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on July 11, 2012, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, Carolyn W. Colvin became the Acting Commissioner of the Social alternatively, remanding for further administrative proceedings; and the Commissioner requests that his decision be affirmed or, alternatively, remanded for further administrative proceedings.


On March 6, 2008, plaintiff filed an application for a period of disability and DIB, alleging an inability to work since March 11, 2006, due to "Rt arm can't push pull lift. Very weak and bad spasms . . . ." (Administrative Record ("A.R.") 97-98, 99-100, 107.) Plaintiff has past relevant work experience as a health assistant. (A.R. 108.)

The Commissioner denied plaintiff's application initially and upon reconsideration. (A.R. 51-60.) On September 23, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge F. Keith Varni (the "ALJ"). (A.R. 26-48.) On November 13, 2009, the ALJ denied plaintiff's claim (A.R. 13-25), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-6, 11). That decision is now at issue in this action.


The ALJ found that plaintiff has not engaged in substantial gainful activity since March 11, 2006, her application date. (A.R. 18.) The ALJ determined that plaintiff has the severe impairment of "post-surgical right shoulder impingement syndrome with subacromial bursitis and rotator cuff tendonopathy," but through the date last insured, she did not have any impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, the Listing of Impairments. (Id.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform less than a full range of light work as defined in 20 C.F.R. 404.1567(b). (A.R. 18.) Specifically, the ALJ found that plaintiff can: lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk six hours in an 8-hour workday; sit for six hours in an 8-hour workday; and occasionally reach above the shoulder with her right upper extremity. (A.R. 18-19.)

The ALJ found that plaintiff's past relevant work, as a school health aide, does not require the performance of work-related activities precluded by plaintiff's RFC. (A.R. 21.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since March 11, 2006, the alleged onset date, through December 31, 2008, the date last insured. (A.R. 22.)


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. 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 Hum. 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 alleges the following issues: (1) whether the ALJ properly considered fibromyalgia as a severe impairment; (2) whether the ALJ properly considered the opinion of treating physician Paul Liu, M.D.; (3) whether the ALJ properly considered plaintiff's testimony; and (4) whether the ALJ properly considered if plaintiff could perform her past relevant work. (Joint Stipulation ("Joint Stip.") at 3.)

I. The ALJ Failed To Properly Consider Plaintiff's Fibromyalgia As A Severe Impairment.

At step two of the sequential evaluation process, the ALJ is tasked with identifying a claimant's "severe" impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c). A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). Despite use of the *fn2 term "severe," most circuits, including the Ninth Circuit, have held that the step two inquiry is "a de minimus screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Accordingly, "[a]n impairment or combination of impairments may be found 'not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on [a claimant's] ability to work.'" Webb v. Barnhart, 433 F.3d 683, 686--87 (9th Cir. 2005)(citation omitted); see Soc. Sec. Ruling 85--28, 1985 WL 56856, at *3, 1985 SSR LEXIS 19, at *9 (stating that "[a] claim may be denied at step two only if . . . a finding [that the relevant impairments are not medically severe] is clearly established by medical evidence")(emphasis added).

On July 2, 2008, Sanjay C. Bhakta, M.D., plaintiff's treating physician, noted that plaintiff had "diffuse myalgias/trigger point pains suggestive of fibromyalgia . . . ." (A.R. 275.) On February 18, 2009, Dr. Bhakta recounted plaintiff's symptoms of "persistent pains in the right shoulder, hand and forearm, neck, and knee/ankle[] pains x 17 years" and "similar milder symptoms on the left side." (A.R. 250.) Upon physical examination, he noted that plaintiff had "[d]iffuse tender points over the posterior occiput, neck anterior chest, shoulders, elbows, medial knees and medial ankles . . . ." (A.R. 251.)

At the referral of Dr. Bhakta, on February 20, 2009, Anthony Te-Hui Lin, M.D., a rheumatologist, examined plaintiff for "diffuse pain, rule *fn3 out fibromyalgia." (A.R. 318-22.) Dr. Lin noted plaintiff's symptoms of "diffuse arthralgia involving [s]houlders, arms, neck, back and legs." (A.R. 318.) Upon examination, Dr. Lin observed that plaintiff exhibited "14/18 tender points," and he diagnosed her with fibromyalgia. (A.R. 319.) He proscribed "flexeril (cyclobenzaprine)" for the fibromyalgia. (A.R. 320.)

On August 10, 2009, Dr. Lin noted that plaintiff had "tenderness and stiffness at her tender points" and observed 12 tender points. (A.R. 292.) He also noted that there was "no evidence of inflammatory arthritis or muscle weakness" and "[w]orkup for rheumatoid arthritis was negative." (A.R. 293.) Dr. Lin assessed plaintiff with fibromyalgia and rotator cuff syndrome. (A.R. 292.)

On December 23, 2009, Dr. Lin again documented that plaintiff had tenderness at 12 tender points. (A.R. 358.) He assessed her fibromyalgia as improved. (Id.)

On April 12, 2010, Dr. Bhakta noted that plaintiff's fibromyalgia was "inadequately controlled." (A.R. 332-34.) He recommended that she start a "trial of Vitamin B12 shots every 2 weeks for fibromyalgia." (Id.)

Plaintiff testified that she has pain in both her upper extremities, hips, legs, and feet, and she has muscle spasms. (A.R. 38-39.) She has pain "almost constantly." (A.R. 39-40.) Plaintiff stated that she was diagnosed with fibromyalgia approximately a year prior to the hearing, but "all through the years I was told I had tendinitis." (A.R. 38.) As a result of her pain, she can only lift up to five pounds, has difficulty sitting and standing for prolonged periods of time, and needs to be reclined with her feet up a total of four hours in a day. (A.R. 43-44.)

The ALJ proffered several reasons for finding that plaintiff's fibromyalgia was "not a severe impairment." (A.R. 20.) First, the ALJ stated that, although plaintiff has been diagnosed with fibromyalgia, the "only basis for the diagnosis . . . appears to be diffuse myalgias and tenderness at tender points," and therefore, "without further objective evidence, the diagnosis is questionable." (Id.) This reason reflects a lack of understanding of fibromyalgia and its diagnosis.

Fibromyalgia is not well-understood, its symptoms are subjective, and it is difficult to diagnose. See Jordan, 370 F.3d at 872 (noting that "fibromyalgia's cause or causes are unknown, there is no cure, and of greatest importance to disability law, its symptoms are entirely subjective"). There generally is very little, if any, objective clinical or diagnostic evidence upon which a fibromyalgia diagnosis may be based. See Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) ("[f]ibromyalgia . . . [is an] elusive and mysterious disease"). "[T]here are no laboratory tests for the presence and severity of fibromyalgia." Id. Thus, the fact that plaintiff has only minimal, objectively determinable signs of fibromyalgia does not mean that she does not suffer from it.

Moreover, Dr. Lin's findings of "diffuse arthralgia involving [s]houlders, arms, neck, back, and legs" and "14/18 tender points" reflects the principal diagnostic test for fibromyalgia. (A.R. 318-19.) "'[T]he only symptom that discriminates between [fibromyalgia] and other diseases of a rheumatic character' [are] multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient has to have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch." Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001)(quoting Sarchet, 78 F.3d at 306).

Second, the ALJ found that plaintiff's fibromyalgia was not a severe impairment, because the diagnosis was based on plaintiff's subjective complaints, which the ALJ found not to be fully credible. (A.R. 20.) However, as discussed below, the ALJ erred in finding that plaintiff was not credible.

Third, the ALJ found fibromyalgia to be not a severe impairment, because "no medical source describe[d] any limitations caused by the fibromyalgia." (A.R. 20.) However, if the ALJ had any question(s) regarding functional limitations caused by plaintiff's fibromyalgia, the ALJ should have recontacted plaintiff's treating physicians in accordance with his duty to conduct an appropriate inquiry. See 20 C.F.R. § 404.1512(e) (noting that 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"). Failure to develop the record fully *fn4 constitutes error.

In sum, plaintiff's testimony and the opinions of plaintiff's treating physicians demonstrates that plaintiff's fibromyalgia would have more than a minimal effect on her ability to function in the workplace. The ALJ's findings to the contrary are not based on substantial evidence and constitute error.

Moreover, contrary to defendant's contention, the ALJ's error cannot be deemed harmless. In general, an ALJ's failure to acknowledge a claimant's impairment at step two may be deemed harmless only when the ALJ's error did not prejudice a claimant at later steps in the sequential evaluation process. In Burch, for example, the Ninth Circuit assumed, without deciding, that the ALJ's failure to discuss plaintiff's obesity in his step two analysis constituted legal error. 400 F.3d at 682. The Ninth Circuit concluded, however, that the assumed error was harmless, because it would not have impacted the ALJ's analysis at either step four or five of the evaluation process. Specifically, the Ninth Circuit found that, for purposes of step four, plaintiff failed to point to any evidence of functional limitations due to her obesity that would have impacted the ALJ's analysis. Id. at 683. At step five, the Ninth Circuit found that no prejudice occurred, because the ALJ "adequately considered [plaintiff's] obesity in his RFC determination," i.e., there were no "functional limitations as a result of [plaintiff's] obesity that the ALJ failed to consider." Id. at 684; see also Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)(finding that any error the ALJ committed in failing to list plaintiff's bursitis at step 2 was harmless, because the ALJ "extensively discussed" plaintiff's bursitis and "considered any limitations posed by the bursitis at [s]tep 4").

In this case, unlike in Burch and Lewis, the Court cannot conclude that the ALJ's failure to consider plaintiff's fibromyalgia was harmless error. As discussed below, the ALJ improperly rejected plaintiff's credibility. Certainly the alleged limitations to which plaintiff testified, if credited, could have impacted the ALJ's analysis at either step four or five of the sequential evaluation process. Accordingly, because the Court cannot conclude that plaintiff was not prejudiced at a later step, the Court cannot find the ALJ's step two error to be harmless. See Stout, 454 F.3d at 1055 (finding an error to be harmless when it "was non-prejudicial to the claimant or irrelevant to the ALJ's ultimate disability conclusion").*fn5

II. The ALJ Failed To Give Clear And Convincing Reasons For Finding Plaintiff's Testimony To Be Not Credible.

Once a disability claimant produces objective medical evidence of an underlying impairment that is reasonably likely to be the source of claimant's 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); 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).

Here, the ALJ found that "[a]fter careful consideration of the evidence, . . . [plaintiff]'s medically determinable impairment could reasonably be expected to cause the alleged symptoms . . . ." (A.R. 19.) Further, the ALJ cited no evidence of malingering by plaintiff. Accordingly, the ALJ's reason for rejecting plaintiff's credibility must be "clear and convincing."

The ALJ stated that plaintiff's "statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they are inconsistent with [the ALJ's RFC] assessment." (A.R. 19.) Specifically, the ALJ found plaintiff to be "exaggerating her limitations," because: (1) "despite [plaintiff's] testimony that there is no job she can do, she admits she can: cook, drive, do housework, do laundry, and shop"; (2) "nearly every examination of [plaintiff] was within normal limits other than for subjective complaints of tenderness"; (3) plaintiff's "lack of ongoing non-conservative treatment"; and (4) "[t]he medical evidence of record simply fails to support [plaintiff]'s allegation of extreme limitations in sitting, standing and lifting." (Id.)

The ALJ's first ground for discrediting plaintiff does not constitute a clear and convincing basis upon which to reject her subjective pain testimony. The ALJ fails to demonstrate how plaintiff's performance of basic self-care activities and household chores translates into the ability to engage in full-time work. See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir.1990)(daily activities may not be relied upon to support an adverse credibility decision where those activities do not affect the claimant's ability to perform appropriate work activities on an ongoing and daily basis).

The fact that plaintiff can intermittently "cook, drive, do housework, do laundry, and shop" does not contradict plaintiff's testimony that she is unable to maintain a full-time job because of the "almost constant[]" pain in both her upper extremities, hip, legs, feet, and hands. (See A.R. 36-38, 40.) Moreover, plaintiff testified that she can go to the "grocery store but when [she] get[s] home from the grocery store [her] feet are hurting, [her] ankles are hurting and [are] swollen and red." (A.R. 43.) She testified that she does housework only when "[she] feel[s] up to it, and [she] take[s] a break when [she] need[s] to." (A.R. 47.) Plaintiff further explained that although she drives, some weeks she does not do anything, "[she] do[es]n't go anywhere." (A.R. 45.) There is no basis for finding that the simple daily activities cited by the ALJ, which plaintiff apparently struggles to perform, are easily transferable to the more grueling environment of the workplace, much less that they are inconsistent with and/or negate plaintiff's assertions regarding the subjective symptoms flowing from her objectively determined physical impairments. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)(only if the level of activity was inconsistent with claimant's claimed limitations would the activity have any bearing on claimant's credibility); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987)(disability claimant need not "vegetate in a dark room" to be deemed eligible for benefits).

The ALJ's second and fourth ground for finding plaintiff to be not credible -- both of which cite the failure of the objective evidence to support plaintiff's subjective complaints -- do not constitute clear and convincing reasons for discrediting plaintiff. The failure of the objective medical record to corroborate fully plaintiff's subjective symptom testimony is not, by itself, a legally sufficient basis for rejecting such testimony. Rollins, 261 F.3d at 856; Bunnell, 947 F.2d at 347 (noting that "[i]f an adjudicator could reject a claim of disability simply because [plaintiff] fails to produce medical evidence supporting the severity of the pain, there would be no reason for an adjudicator to consider anything other than medical findings"). *fn6

The ALJ's third ground for discrediting plaintiff, i.e., the lack of ongoing non-conservative treatment, is also not a clear and convincing reason. Plaintiff stated that for her pain, "nothing seems to work." (A.R. 41.) She testified that she was: prescribed two different muscle relaxers and they work so slightly that it's not worth the feeling that [she] get[s] from them. And [she] take[s] Ibuprofen occasionally. [She has] tried two different pain pills and they don't work, and they -- [she] do[es]n't like what they do to [her] -- the way [she] feel[s]. It's like nothing works well enough. Nothing takes the pain away well enough to be worth the side effects.*fn7

(A.R. 41-42.)

The record also indicates that plaintiff is given Vitamin B12 shots every 2 weeks for her fibromyalgia. (A.R. 334, 330, 328.) Plaintiff testified that it was recommended that she get massages for her pain "but it's expensive to do that, so [she] ha[s]n't -- [she] ha[s]n't done that." (A.R. 45.) Given the nature and extent of plaintiff's *fn8 treatment, it does not appear that it is so conservative as to call into question plaintiff's subjective testimony. Further, there is no substantial evidence in the record to support the ALJ's inference that plaintiff's debilitating pain and symptoms would be alleviated if she were to secure more aggressive treatment. Indeed, there is no surgical or other cure for fibromyalgia, which can be a debilitating disease. See Jordan, 370 F.3d at 872 (recognizing that there is no cure for fibromyalgia). Thus, this reason for rejecting plaintiff's subjective complaints also is not convincing.

Accordingly, the ALJ's rejection of plaintiff's credibility, without setting forth clear and convincing reasons, constitutes reversible error. On remand, the ALJ must provide reasons for doing so, if they exist, in accordance with the requisite legal standards, for discrediting plaintiff's pain testimony.

(citation omitted); see also Soc. Sec. Ruling 96--7p, 1996 WL 374186, at *2--*3, 1996 SSR LEXIS 4, at *7--*8 (noting that type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms should be considered in the disability evaluation); 20 C.F.R. § 404.1529(c)(3)(iv).

III. The ALJ Failed To Set Forth The Requisite Specific And Legitimate Reasons For Rejecting The Opinion Of Plaintiff's Treating Physician, Paul Liu, M.D.

When the ALJ rejects the opinion of a treating physician which has been contradicted, the ALJ may reject that opinion only by providing specific and legitimate reasons for doing so, supported by substantial evidence in the record. Lester, 81 F.3d at 830. 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. Broad and vague reasons will not suffice for rejecting the treating physician's opinion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989).

The ALJ accorded "very little weight" to Dr. Liu's opinion that plaintiff has been "unable to work since early 2007, due to chronic activity related right upper extremity pain, pain around the shoulder blade, and related neck and right shoulder discomfort" (A.R. 212), because: (1) the assessment was made for disability purposes; (2) Dr. Liu "does not describe limitations associated with any other body part"; (3) "[i]n light of the minimal findings . . . , the opinion overstates [plaintiff]'s limitations"; and (4) his opinion is contradicted by the State agency review physicians. (A.R. 21.)

The ALJ's first reason for rejecting Dr. Liu's opinion -- to wit, that Dr. Liu's assessment was made for disability purposes -- is unavailing. The ALJ's assertion lacks foundation and is not a legally sufficient ground upon which to reject a treating doctor's report. See Lester, 81 F.3d at 832 ("The purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them."); see also Ratto v. Sec'y, 839 F. Supp. 1415, 1426 (D. Or. 1993)(an ALJ "may not assume that doctors routinely lie in order to help their patients collect disability benefits"). While the ALJ "'may introduce evidence of actual improprieties,'" no such evidence exists here. Lester, 81 F.3d at 832 (citation omitted). Thus, the fact that Dr. Liu's letter was prepared for "disability purposes" is of no moment, and Dr. Liu's opinion constitutes substantial evidence that plaintiff had significant pain, limitations, and restrictions resulting from impairments of her upper extremities. Accordingly, the ALJ's rejection of Dr. Liu's letter on this basis is reversible error.

The ALJ's second reason for rejecting Dr. Liu's opinion -- to wit that he "does not describe limitations associated with any other body part" -- is not legitimate. While it is true that Dr. Liu solely provides findings with respect to plaintiff's upper extremities in his May 15, 2008 letter, it does mean that those findings alone would not render plaintiff disabled. (A.R. 212.) Moreover, plaintiff was referred to Dr. Liu specifically for evaluation of her upper extremities, particularly for her left and right shoulder pain. (A.R. 176, 182-83.) If the ALJ required further, more specific details regarding the extent of plaintiff's impairments related to her "other body part[s]," then the ALJ should have further developed the record.

Third, the ALJ concluded that Dr. Liu's opinion is based on "minimal findings . . . [and] overstates the [plaintiff's] limitations" concerning her upper extremities. (A.R. 21.) Contrary to the ALJ's finding, it is not evident that there were "minimal findings," as the medical record is replete with numerous notations -- describing plaintiff's symptoms, treatment, and objective clinical findings regarding her upper extremities -- that support his opinion. Also, Dr. *fn9

Liu did not complete a functional assessment for plaintiff, and thus, it is unclear whether Dr. Liu's findings "overstate[] [plaintiff's] limitations" as the ALJ contends. (A.R. 21.) Therefore, this basis does not constitute a legitimate reason for rejecting Dr. Liu's opinion.

Lastly, the ALJ's fourth basis for rejecting the opinions of Dr. Liu -- to wit, that his opinion is contradicted by the State agency physicians -- is also unavailing. (A.R. 21.) The opinions of State agency physicians, who are non-treating and non-examining physicians, cannot, by themselves, constitute substantial evidence, because they are not based on any independent findings. Indeed, it does not appear that *fn10

On December 3, 2007, plaintiff presented with "right tennis elbow pain and wrist pain and forearm discomfort," as well as "some numbness in right hand." (A.R. 171.) Upon examination, Dr. Liu noted that plaintiff's right shoulder exhibited decreased range of motion, minimal pain, decreased strength, and no tenderness. (A.R. 172.) As for her right elbow, she had normal range of motion but lateral epicondyle tenderness. (Id.) He recommended a right elbow cortisone injection. (Id.)

On January 15, 2008, plaintiff presented with pain of her right arm. (A.R. 159.) On physical exam, Dr. Liu noted that her right shoulder exhibited decreased range of motion, pain, and decreased strength. (A.R. 160.)

On April 1, 2008, plaintiff presented with minimal right shoulder pain and remarked that the cause of her "arm pain which existed preop, . . . has been highlighted postop." (A.R. 168.) Plaintiff's right shoulder exhibited decreased range of motion and no pain. (A.R. 169.) Her right upper arm exhibited tenderness but no swelling, edema, and deformity. (Id.) Dr. Liu recommended an MRI of her right arm. (Id.)

the State agency physicians based their opinions on any medical findings or tests that Dr. Liu did not consider himself. Moreover, unlike the State agency reviewing physicians, Dr. Liu is an orthopedic surgeon. The opinion of a specialist about medical issues related to his area of specialty generally receives more weight than the opinions of non-specialist sources. 20 C.F.R. § 404.1527(c)(5).

Accordingly, for the aforementioned reasons, the ALJ failed to give specific and legitimate reasons, supported by substantial evidence, for rejecting the opinions of plaintiff's treating physician, Dr. Liu. This constitutes error. On remand, the ALJ needs to properly consider Dr. Liu's opinions and, to the degree necessary, conduct an appropriate inquiry regarding the extent of plaintiff's symptoms and limitations, which Dr. Liu opined to be disabling. Specifically, the ALJ should try to obtain from Dr. Liu functional limitations to be imposed based on plaintiff's impairments, or the ALJ may need to secure a consultative examination for plaintiff.

IV. Because The ALJ's Findings Regarding Plaintiff's Ultimate RFC Must Be Reconsidered, Additional Vocational Expert Testimony Likely Will Be Required.

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 plaintiff's ability to do her past relevant work may change. Therefore, the Court does not reach plaintiff's fourth claim. To properly review and reconsider these issues, the ALJ must correct the above-mentioned deficiencies and errors. Further, to the extent that plaintiff's RFC is reassessed, additional testimony from a vocational expert likely will be required to determine what work, if any, plaintiff can perform.

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.

Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. See, e.g., Benecke, 379 F.3d at 593 (remand for further proceedings is appropriate if enhancement of the record would be useful); see also Stillwater v. Comm'r of Soc. Sec. Admin., 361 Fed. Appx. 809, 812 (9th Cir. Jan. 7, 2010)(remand for reconsideration of State agency physicians' opinions that were discredited because they were based on a treating physician's opinion that the ALJ rejected improperly); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)(ordering remand so that the ALJ could articulate specific and appropriate findings, if any existed, for rejecting the claimant's subjective pain testimony); McAllister, 888 F.2d at 603 (remand appropriate to remedy defects in the record).


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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