Loretta Martin v. Carolyn W. Colvin

Filing 37

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings. (mz)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 LORETTA MARTIN, 13 Plaintiff, 14 15 16 17 v. NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 16-08167-AS MEMORANDUM OPINION AND ORDER OR REMAND 19 20 PROCEEDINGS 21 22 On November 2, 2016, Plaintiff filed a Complaint seeking review of 23 the denial of her application for Supplemental Security Income. (Docket 24 Entry No. 1). The parties have consented to proceed before the 25 undersigned United States Magistrate Judge. (Docket Entry Nos. 17-18). 26 27 28 On April 13, 2017, Defendant filed 1 an Answer along with the Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Caroyln W. Colvin in this case. See 42 U.S.C. § 205(g). 1 1 Administrative Record (“AR”). (Docket Entry Nos. 30-31). The parties 2 filed a Joint Stipulation (“Joint Stip.”) on September 7, 2017, setting 3 forth their respective positions regarding Plaintiff’s claims. 4 (Docket Entry No. 36). 5 6 7 The Court has taken this matter under submission without oral 8 argument. See C.D. Cal. L.R. 7-15; “Order Re: Procedures in Social 9 Security Case,” filed November 16, 2016 (Docket Entry No. 15). 10 11 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 12 13 14 On January 23, 2013, Plaintiff, formerly employed as housekeeper 15 and stocker at a retail store (see AR 56-57, 272-74, 316-19), filed an 16 application for Supplemental Security Income, alleging a disability 17 since August 21, 2009. 18 19 (AR 228-29). On January 28, 2015, the Administrative Law Judge (“ALJ”), Jesse J. 20 21 22 Pease, heard testimony from Plaintiff (who was represented by counsel) and vocational expert Victoria Rae. (See AR 55-70). On February 11, 23 2015, the ALJ issued a decision denying Plaintiff’s application. 24 AR 25-33). (See After determining that Plaintiff had severe impairments –- 25 “degenerative disc disease, lumbar spine, L4-5; mild obesity; asthma; 26 lumbar spine sprain; carpal tunnel syndrome, right hand, mild; patellar 27 tendinitis and chondromalacia, left knee; and osteochondroma of the 28 2 1 right ankle” (AR 27-28)2 –- but did not have an impairment or combination 2 of impairments that met or medically equaled the severity of one of the 3 Listed Impairments (AR 28-29), the ALJ found that Plaintiff had the 4 residual functional capacity (“RFC”)3 to perform light work4 with the 5 6 following limitations: can perform postural activities occasionally; can 7 use the right dominant hand frequently; and cannot be exposed to 8 excessive air pollutants. 9 Plaintiff was able (AR 29-32). to perform The ALJ then determined that past relevant work as a 10 housekeeper/cleaner as actually performed and as generally performed (AR 11 32-33), and therefore found that Plaintiff was not disabled within the 12 meaning of the Social Security Act. (AR 33). 13 14 15 Plaintiff requested that the Appeals Council review the ALJ’s 16 Decision. (See AR 17). The request was denied on September 6, 2016. 17 (See AR 1-5). The ALJ’s Decision then became the final decision of the 18 Commissioner, allowing this Court to review the decision. See 42 U.S.C. 19 §§ 405(g), 1383(c). 20 21 22 23 24 25 26 27 28 2 The ALJ found that Plaintiff’s impairments of mild chondromalacia of the right knee and postpartum depression were nonsevere. (AR 27-28). 3 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 416.945(a)(1). 4 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 416.967(b). 3 1 PLAINTIFF’S CONTENTIONS 2 3 Plaintiff alleges that the ALJ failed to properly: (1) assess the 4 5 6 opinion of the orthopedic Plaintiff’s credibility. consultative examiner; and (2) assess (See Joint Stip. at 4-9, 14-20, 24-25). 7 8 DISCUSSION 9 10 11 After consideration of the record as a whole, the Court finds that Plaintiff’s second claim of error warrants a remand for further 12 consideration. Since the Court is remanding the matter based on 13 14 Plaintiff’s second claim of error, the Court will not address 15 Plaintiff’s first claim of error. 16 17 A. The ALJ Did Not Properly Assess Plaintiff’s Credibility 18 19 Plaintiff asserts that the ALJ failed to provide clear and 20 21 22 convincing reasons reasons for rejecting Plaintiff’s testimony about her symptoms. (See Joint Stip. at 15-20, 24-25). Defendant asserts that 23 the ALJ properly considered Plaintiff’s testimony and provided valid 24 reaons for discounting Plaintiff’s testimony. 25 24). 26 27 28 4 (See Joint Stip. at 20- 1 Plaintiff made the following statements in an “Exertion 2 Questionnaire” dated August 5, 20115: 3 4 She lives alone/with family (children) in an apartment. 5 6 She is not able to work because she just lies in bed, and she 7 sometimes cannot even get to the restroom. On an average day, 8 she goes on walks, cleans and watches television. 9 for 2 to 3 miles,6 which takes about 2 hours, but causes her She walks 10 body, especially her back and knees, to hurt. 11 stairs –- 12 steps -- but it is painful (she has to climb 12 stairs to get to school and stores). She climbs She does not lift 13 anything but blankets and other things lying around her house. 14 15 She carries the following items: a bag for the store (1/2 16 minute, once a week); a plate (10 feet, every day); and a 17 laundry basket (20 feet, once a week). When asked whether she 18 does her own grocery shopping, she checked off “yes” and “no.” 19 She cleans her own home, by vaccuum, washing dishes, picking 20 up and making her bed, all which take 3 hours. 21 She has difficulty finishing her housework. She does not drive a car, 22 23 work on cars, or do yard work. She sleeps for 4 hours, and 24 25 5 Plaintiff’s statements in the various reports are difficult to 26 decipher because her handwriting is not very legible and because her responses to questions sometimes are not clear. Plaintiff acknowledges 27 that she is not able to write or spell well (see AR 335). 28 6 When summarizing Plaintiff’s testimony in this “Exertion Questionnaire,” the ALJ wrote that “[s]he stated she was able to walk for two to three minutes.” (AR 29). 5 1 requires 2 naps a day for about an hour. 2 her hand and a splint. She uses a brace for (AR 276-78). 3 4 Plaintiff made the following statements in an undated “Pain 5 6 Questionnaire”: 7 8 She has pain in her right knee, lower back, left hand and 9 right shoulder, and the pain spreads to her arms and legs. 10 She gets pain when she does too much walking, sitting or 11 carrying, and lasts for 2 hours. 12 Resting for 1 hour relieves her pain. For 2 months, she has taken prescribed Acetaminopen 13 Codeine 3 (which relieves the pain in an hour), 2 to 3 times, 14 15 once every 6 years. The medication does not cause any side 16 effects. Surgery has not been scheduled to attempt to relieve 17 the pain. 18 and household chores. 19 activities like running, jogging and playing outdoors with her 20 children, i.e., basketball and football (she does not recall 21 Her usual daily activities are walking, shopping The pain prevents her from doing past when the pain first began to affect her activities). She is 22 23 able to do errands such as going to the post office or grocery 24 store without assistance (she uses public transportation), and 25 she is able to do light housekeeping chores (i.e., dusting, 26 cooking, etc.) without assistance. 27 miles outside her home. She is able to walk 3 She is able to stand for 20 to 30 28 6 1 minutes at a time and to sit for 30 to 40 minutes at a time. 2 (AR 298-300). 3 4 Plaintiff made the following statements in a “Pain Questionnaire” 5 6 dated March 31, 2013: 7 8 The pain is located on her neck, knees, back and right 9 hand/arm and spreads to her legs, chest, shoulders and arms. 10 The pain began 6 months to a couple of years ago, and occurs 11 every day or every other day. 12 The pain is caused by walking, climbing stairs, some cleaning, and carrying. The pain lasts 13 for 2 to 4 hours. Resting for about 1/2 hour relieves the 14 15 pain. She has been taking prescribed Hydrocodone/Acetaminophen 16 (4 pills a day) every day for 3 to 4 months. 17 relieves the pain in about 30 minutes. 18 have any side effects. 19 relieve the pain. 20 things to assist in relieving the pain. 21 The medicine The medicine does not No surgery is scheduled to attempt to She wears a wrist brace and does other Her usual daily activities are walking, shopping and driving. She cannot do 22 23 past activities like driving, running, jogging, and walking 24 far because of the pain. The pain first started to affect her 25 activities more than 5 years ago. She has to stop an activity 26 because of pain after 5 minutes. She is able to do errands 27 such as going to the post office or grocery store without 28 assistance (she uses public transportation), and she is able 7 1 to do light housekeeping chores (i.e., dusting, cooking, etc.) 2 without assistance. 3 house. 4 She is able to walk 5 miles outside her She is able to stand 30 minutes at a time, and she is able to sit for 90 minutes at a time. (AR 313-15). 5 6 7 Plaintiff made the following statements in a “Function Report - 8 Adult” dated August 2013 (see AR 328-35). 9 10 11 12 She lives apartment. alone/with family (her children) in an She cannot work because she cannot stand or sit for a long period of time (because of her back), because of 13 her hurt right hand, and because of a possibly broken ankle. 14 15 (AR 328, 335). 16 She takes care of her children; she feeds them, takes 17 18 them to school, and bathes them. 19 pets. 20 face/teeth, 21 She does not take care of With respect to her daily activities, she washes her bathes her children, cooks breakfast, does housework, watches television, sits on a sofa and lies down. 22 23 (See AR 329). 24 25 As a result of her impairments, she no longer is able to 26 run, jog, climb, or play at the park with her children. 27 impairments affect her sleep; she cannot sleep, she has pain 28 in her back and legs, and she ends up playing “lots of 8 Her 1 mindgames.” Her impairments affect her abilities to dress (it 2 takes her about 45 minutes instaead of 10 minutes), to care 3 for her hair (her arm and hand hurt), and to use the toilet 4 (she gets stuck sitting on the toilet). She needs special 5 6 reminders to take care of personal needs and grooming and to 7 take medicine (she leaves messages on her cell phone in order 8 not to forget). (See AR 329-30). 9 10 She prepares her own meals (i.e., sandwiches, complete 11 meals) daily (3 1/2 hours). Her impairments have affected her 12 cooking since she drops things. Her househould chores are 13 laundry (4 hours, 2 times a week) and cleaning up (4 hours 14 15 daily). She goes outside, walking and using public 16 transportation, 2 to 3 times a week. 17 but does not drive. 18 for food, children’s clothes, school supplies, bedding, and 19 kitchen and bath items (2 to 3 hours, 2 times a month). 20 is able to pay bills, count change, handle a saving account, 21 She can go out alone, She shops in stores, by phone and by mail and use a checkbook or money orders. She (See AR 330-31). 22 23 24 Her hobbies and interests are running, jogging, reading 25 (every day), playing sports, playing with her children (3 26 hours daily), and watching television (4 1/2 hours daily) 27 Since her impairments began, she cannot run or jog, and she 28 does not play well with her children because of her pain (but 9 1 “she still do[es] what a mother has to do”). 2 with others 3 times a month, going out to eat, going to malls, 3 and talking on the phone once a day, and getting together with 4 a friend once a week. She spends time She goes to church and her mother’s and 5 6 7 sister’s house 25 times a month, but needs to be accompanied and to be reminded to go places. (See AR 332-33). 8 9 Her impairments affect her lifting (she can lift only 10 10 pounds), squatting, bending, standing, reaching, walking, 11 sitting, kneeling, seeing, understanding and using hands. She 12 can walk for 10 to 20 minutes before he has to rest, and then 13 must rest for 30-45 minutes before she can resume walking. 14 15 She can pay attention for 5 to 10 minutes. She cannot finish 16 what she starts. She cannot follow written instructions. She 17 cannot follow spoken instructions very well; she has to be 18 told 3 to 4 times. 19 figures very well when they are wrong or lie to her. 20 never been fired or laid off from a job because of problems 21 She does not get along with authority getting along with other people. She has She does not handle stress 22 23 very well; she just goes for a walk, takes a long shower, 24 plays music and cries. She does not handle changes in routine 25 well. 26 prescribed glasses. (See AR 333-34). She uses a cane, a prescribed brace/splint, and 27 28 10 1 Plaintiff made the following statements in a “Pain Questionnaire” 2 dated September 13, 2013: 3 4 Beginning in August 2008, she has had pain in her lower 5 6 back, right shoulder, knees and right hand. The pain is an 7 achey, stabbing sharp pain, which spreads to her neck, up her 8 back and down to her feet. 9 and her knees to go out so she cannot walk. The pain causes her back to lock Every day she has 10 the pain, which generally lasts 2-4 hours. 11 activity that brings on the pain. Because of the pain she can 12 Walking is one no longer run, jog, hold things (i.e., at the market), or play 13 with her children at the park. She puts on hot packs, takes 14 15 16 long, hot baths, and wears a brace to relieve the pain. (AR 335-37). 17 18 Plaintiff testified at the January 28, 2015 administrative hearing 19 as follows (see AR 52-65): 20 21 She completed the 11th grade. She has five children 22 23 ranging from 20 years old to 2 years old (20, 18, 14, 7 and 24 2), and only the 20-year-old does not live with her. She does 25 not have to do all the cooking and cleaning; her 18-year-old 26 and her 15-year-old children (both of whom have disabilities) 27 help her. 28 around 2009. Her last job was as a full-time hotel housekeeper She worked there from July 2007 to August 2009, 11 1 when she got hurt and was told not to come back. 2 then, she worked for a couple of years as a stocker at a 3 retail store. 4 Prior to She is not able to work because of a bad back, a right broken ankle (injured in a car accident), a right 5 6 dislocated shoulder (injured during a fall), carpal tunnel in 7 her hands (but worse in her right hand), a right knee issue 8 (injured during a fall; her right knee issue exacerbated her 9 back injury); and a head injury (injured during a fall 3 weeks 10 earlier). 11 55-61, 63-67). She takes medicine (a pump) for asthma. (See AR 12 13 She can walk for about 5 minutes before she has to stop 14 15 and rest. She can sit for about 3 minutes before she needs to 16 change position, i.e., stand up, walk a little. She lies down 17 when her back starts to really hurt. 18 pounds. 19 weighs 26 or 27 pounds (“because that’s what a mother needs to 20 do, even though she has pain”). She can lift 15 to 20 She sometimes picks up her 2-year-old child who (See AR 61-63). 21 22 23 In 2007, she was told about having a surgery on the back 24 of her neck (but she did not proceed with it because a co- 25 worker got worse following a shoulder and arm surgery). 26 was also told about having a surgery on her hand and/or wrist. 27 Thirty years ago, she was told about having a surgery on her 28 12 She 1 ankle (which she decided not to do because she thought it 2 would heal on its own). (See AR 63-64). 3 4 When asked whether she has any psychological problems, 5 6 she stated that she cannot remember a lot of things (she uses 7 her phone to remind her of dates of things like a hearing), 8 and that she reads and writes maybe like an eighth-grader. 9 (See AR 64-65). 10 11 12 After briefly administrative discussing hearing, the Plaintiff’s Exertional testimony Questionnaire, at the the Pain 13 Questionnairs, and the Adult Function Report (see AR 29-30), the ALJ 14 15 addressed Plaintiff’s credibility as follows: 16 17 The undersigned finds the claimant’s allegations 18 concerning the intensity, persistence and limiting efects of 19 her symptoms are less than fully credible. 20 debilitating pain are inconsistent with the objective medical 21 evidence and the claimant’s admitted The allegations of activities, which 22 23 indicates an attempt by the claimant to exaggerate the 24 severity of her symptoms. The claimant admitted she was able 25 to walk (up to five miles) and use public transportation, do 26 some household chores, prepare meals, and go out alone. 27 tasks are within the residual functional capacity assessed 28 herein, and the physical and mental abilities and social 13 These 1 interactions required in order to perform those activities are 2 the same as those necessary for obtaining and maintaining 3 employment. 4 reflects work activities after the alleged onset date. 5 Furthermore, as mentioned earlier, the record record showed the claimant worked in 2013 (Ex. 9D). The Although 6 7 8 9 10 that work substantial activity gainful does not activity, constitute it does disqualifying indicate that the claimant’s daily activities have, at least at times, been somewhat greater than the claimant has generally reported. 11 12 13 14 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause some of the 15 16 alleged symptoms; however, the claimant’s statements 17 concerning the intensity, persistence and limiting effects of 18 these symptoms are not credible 19 inconsistent 20 assessment. (AR 29-30). with the above to the extent they are residual functional capacity 21 22 A claimant initially must produce objective medical evidence 23 establishing a medical impairment reasonably likely to be the cause of 24 25 the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 26 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Once a 27 claimant produces objective medical evidence of an underlying impairment 28 that could reasonably be expected to produce the pain or other symptoms 14 1 alleged, and there is no evidence of malingering, the ALJ may reject the 2 claimant’s testimony regarding the severity of his or her pain and 3 symptoms only by articulating specific, clear and convincing reasons for 4 doing so. Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir. 5 2015)(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 6 7 8 2007)); see also Smolen, supra; Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th 9 Cir. 1997). Because the ALJ does not cite to any evidence in the record 10 of malingering, the “clear and convincing” standard stated above 11 applies. 12 13 14 Here, the ALJ failed to provide clear and convincing reasons for finding that Plaintiff’s testimony about the intensity, persistence and 15 16 limiting effects of her symptoms was not entirely credible.7 17 18 First, the ALJ failed to “specifically identify ‘what testimony is 19 not credible and what evidence undermines [Plaintiff’s] complaints.’” 20 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v. 21 Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen, supra, 80 22 F.3d at 1284 (“The ALJ must state specifically what symptom testimony 23 24 7 The Court will not consider reasons for finding Plaintiff not 25 entirely credible (see Joint Stip. at 21-23) that were not given by the ALJ in the Decision. See Connett v. Barnhart, 340 F.3d 871, 874 (9th 26 Cir. 2003)(“We are constrained to review the reasons the ALJ asserts.”; citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), Pinto v. 27 Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)); and Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)(“We review only the reasons 28 provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.”). 15 1 is not credible and what facts in the record lead to that conclusion”); 2 Laborin v. Berryhill, 867 F.3d 1151, 1154-54 (9th Cir. 2017)(stating 3 that the boilerpate language that a claimant’s “statements concerning 4 the intensity, persistence and limiting effects of [the claimant’s] 5 symptoms are not credible to the extent that are inconsistent with the 6 7 8 RFC” “does not . . . add anything to the ALJ’s determination of either the RFC or the claimant’s credibility.”). 9 10 Second, the ALJ’s partial discrediting of Plaintiff’s testimony 11 based on her ability to perform certain daily activities, such as 12 walking, using public transportation, doing some household chores, 13 preparing meals, and going out alone, was not a clear and convincing 14 reason. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) 15 16 17 (“[T]he mere fact that a plaintiff has carried on certain daily activities . . . does not in any way detract from her credibility as to 18 her overall disability. One does not need to be ‘utterly incapacitated’ 19 in order to be disabled.”); Reddick, supra (“Only if the level of 20 activity were inconsistent with the Claimant’s claimed limitations would 21 these activities have any bearing on Claimant’s credibility.”). 22 23 It is not clear whether the ALJ considered Plaintiff’s testimony 24 25 about her limited abilities to perform such daily activities (see AR 276 26 [Plaintiff testified that it took her about 2 hours to walk 2 to 3 27 miles, and that walking caused her body to hurt all over], 298 28 [Plaintiff testified she feels pain when she walks too much], 313 16 1 [Plaintiff testified that walking caused her pain], 333 [Plaintiff 2 testified she can walk for 10 to 20 minutes before having to stop and 3 rest], 61-62 [Plaintiff testified that she could only walk for 5 minutes 4 before having to stop and rest], 277 [Plaintiff testified it takes her 5 3 hours to clean her home, wash dishes, pick up, and make her bed], 278 6 7 8 [Plaintiff’s testimony that she has difficulty finishing her housework], 60 [Plaintiff’s testimony that she has two of her children help her with 9 the cooking and cleaning], and 330 [Plaintiff’s testimony that it takes 10 her 3 1/2 hours to prepare a meal). Moreover, although, as noted by the 11 ALJ, Plaintiff did testify she can walk up to 5 miles (see AR 300 [3 12 miles], 315 [5 miles]), Plaintiff was not asked about those statements 13 or whether (particularly in light of Plaintiff’s other testimony about 14 her walking limitations) she properly understood the questions being 15 16 17 asked (i.e., the distance she was able to walk “outside [her] home”) at the administrative hearing. Therefore, the degree to which Plaintiff 18 could perform such daily activities may not have been inconsistent with 19 her testimony regarding her limitations. See Reddick, supra; see also 20 Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 (9th 21 Cir. 1999)(“If a claimant is able to spend a substantial part of his day 22 engaged in pursuits involving the performance of physical functions that 23 are transferable to a work setting, a specific finding as to this fact 24 25 may be sufficient to discredit a claimant’s allegations.”). 26 27 Third, to the extent that the ALJ found that Plaintiff was not 28 entirely credible based on the fact that Plaintiff worked in 2013, that 17 1 reason was not clear and convincing. The ALJ relied on a record 2 reflecting that Plaintiff worked at the Salvation Army in 2013 and 3 earned a total of $ 748.00. 4 (AR 267). However, at the administrative hearing, the ALJ did not ask Plaintiff what she did at the Salvation 5 6 Army in 2013. Moreover, the ALJ failed to articulate how Plaintiff’s 7 apparently minimal work at the Salvation Army in 2013 affected the 8 credibility of her testimony concerning the severity of her pain and 9 symptoms. 10 11 12 Fourth, although the ALJ also found that there was a lack of objective medical evidence supporting Plaintiff’s testimony concerning 13 her symptoms and limitations, the lack of supporting objective medical 14 15 evidence cannot, by itself, support an adverse credibility finding. See 16 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Tidwell v. 17 Apfel, 161 F.3d 599, 602 (9th Cir. 1998). In addition, the ALJ failed 18 to specifically identify what medical evidence was inconsistent with 19 Plaintifff’s testimony. See Brown-Hunter v. Colvin, 806 F.3d 497, 494 20 (9th Cir. 2015). 21 22 23 B. Remand Is Warranted 24 25 The decision whether to remand for further proceedings or order an 26 immediate award of benefits is within the district court’s discretion. 27 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 28 useful purpose would be served by further administrative proceedings, 18 1 or where the record has been fully developed, it is appropriate to 2 exercise this discretion to direct an immediate award of benefits. Id. 3 at 1179 (“[T]he decision of whether to remand for further proceedings 4 turns upon the likely utility of such proceedings.”). However, where, 5 6 as here, the circumstances of the case suggest that further 7 administrative review could remedy the Commissioner’s errors, remand is 8 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 9 Harman v. Apfel, supra, 211 F.3d at 1179-81. 10 11 12 Since the ALJ failed to properly assess Plaintiff’s credibility, remand is appropriate. Because outstanding issues must be resolved 13 before a determination of disability can be made, and “when the record 14 15 as a whole creates serious doubt as to whether the [Plaintiff] is, in 16 fact, disabled within the meaning of the Social Security Act,” further 17 administrative proceedings would serve a useful purpose and remedy 18 defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 19 2014)(citations omitted).8 20 21 22 23 24 25 26 27 28 8 The Court has not reached any other issue raised by Plaintiff except to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995, 1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s claim regarding the ALJ’s error in failing to properly assess the opinion of the orthopedic consultative examiner (see Joint Stip. at 4-9, 14-15). Because this matter is being remanded for further consideration, this issue should also be considered on remand. 19 1 ORDER 2 3 For the foregoing reasons, the decision of the Commissioner is 4 5 6 reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). 7 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9 10 DATED: October 10, 2017 11 12 13 14 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20

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