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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

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12 LORETTA MARTIN,
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Plaintiff,

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v.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social
Security,
Defendant.

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Case No. CV 16-08167-AS
MEMORANDUM OPINION AND
ORDER OR REMAND

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PROCEEDINGS

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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
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undersigned United States Magistrate Judge.

(Docket Entry Nos. 17-18).

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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.

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(Docket

Entry No. 36).

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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).
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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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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.
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19

(AR 228-29).

On January 28, 2015, the Administrative Law Judge (“ALJ”), Jesse J.

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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
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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
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Listed Impairments (AR 28-29), the ALJ found that Plaintiff had the

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residual functional capacity (“RFC”)3 to perform light work4 with the

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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
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meaning of the Social Security Act.

(AR 33).

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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).
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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).
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“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).
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PLAINTIFF’S CONTENTIONS

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Plaintiff alleges that the ALJ failed to properly: (1) assess the

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opinion

of

the

orthopedic

Plaintiff’s credibility.

consultative

examiner;

and

(2)

assess

(See Joint Stip. at 4-9, 14-20, 24-25).

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DISCUSSION

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After consideration of the record as a whole, the Court finds that
Plaintiff’s

second

claim

of

error

warrants

a

remand

for

further

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consideration.

Since the Court is remanding the matter based on

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Plaintiff’s

second

claim

of

error,

the

Court

will

not

address

15 Plaintiff’s first claim of error.
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17 A.

The ALJ Did Not Properly Assess Plaintiff’s Credibility

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Plaintiff

asserts

that

the

ALJ

failed

to

provide

clear

and

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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).
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(See Joint Stip. at 20-

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Plaintiff

made

the

following

statements

in

an

“Exertion

2 Questionnaire” dated August 5, 20115:
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She lives alone/with family (children) in an apartment.

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She is not able to work because she just lies in bed, and she

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sometimes cannot even get to the restroom. On an average day,

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she goes on walks, cleans and watches television.

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for 2 to 3 miles,6 which takes about 2 hours, but causes her

She walks

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body, especially her back and knees, to hurt.

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stairs –- 12 steps -- but it is painful (she has to climb

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stairs to get to school and stores).

She climbs

She does not lift

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anything but blankets and other things lying around her house.

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She carries the following items:

a bag for the store (1/2

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minute, once a week); a plate (10 feet, every day); and a

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laundry basket (20 feet, once a week). When asked whether she

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does her own grocery shopping, she checked off “yes” and “no.”

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She cleans her own home, by vaccuum, washing dishes, picking

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up and making her bed, all which take 3 hours.

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She has

difficulty finishing her housework. She does not drive a car,

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work on cars, or do yard work.

She sleeps for 4 hours, and

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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).
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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).
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requires 2 naps a day for about an hour.

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her hand and a splint.

She uses a brace for

(AR 276-78).

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Plaintiff

made

the

following

statements

in

an

undated

“Pain

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6

Questionnaire”:

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She has pain in her right knee, lower back, left hand and

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right shoulder, and the pain spreads to her arms and legs.

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She gets pain when she does too much walking, sitting or

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carrying, and lasts for 2 hours.

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Resting for 1 hour relieves

her pain. For 2 months, she has taken prescribed Acetaminopen

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Codeine 3 (which relieves the pain in an hour), 2 to 3 times,

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once every 6 years.

The medication does not cause any side

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effects. Surgery has not been scheduled to attempt to relieve

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the pain.

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and household chores.

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activities like running, jogging and playing outdoors with her

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children, i.e., basketball and football (she does not recall

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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

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able to do errands such as going to the post office or grocery

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store without assistance (she uses public transportation), and

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she is able to do light housekeeping chores (i.e., dusting,

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cooking, etc.) without assistance.

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miles outside her home.

She is able to walk 3

She is able to stand for 20 to 30

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minutes at a time and to sit for 30 to 40 minutes at a time.

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(AR 298-300).

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Plaintiff made the following statements in a “Pain Questionnaire”

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dated March 31, 2013:

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The pain is located on her neck, knees, back and right

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hand/arm and spreads to her legs, chest, shoulders and arms.

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The pain began 6 months to a couple of years ago, and occurs

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every day or every other day.

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The pain is caused by walking,

climbing stairs, some cleaning, and carrying.

The pain lasts

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for 2 to 4 hours.

Resting for about 1/2 hour relieves the

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pain. She has been taking prescribed Hydrocodone/Acetaminophen

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(4 pills a day) every day for 3 to 4 months.

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relieves the pain in about 30 minutes.

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have any side effects.

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relieve the pain.

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things to assist in relieving the pain.

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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

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past activities like driving, running, jogging, and walking

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far because of the pain.

The pain first started to affect her

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activities more than 5 years ago.

She has to stop an activity

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because of pain after 5 minutes.

She is able to do errands

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such as going to the post office or grocery store without

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assistance (she uses public transportation), and she is able

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to do light housekeeping chores (i.e., dusting, cooking, etc.)

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without assistance.

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house.

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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).

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Plaintiff made the following statements in a “Function Report -

8 Adult” dated August 2013 (see AR 328-35).
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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

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her hurt right hand, and because of a possibly broken ankle.

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(AR 328, 335).

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She takes care of her children; she feeds them, takes

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them to school, and bathes them.

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pets.

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face/teeth,

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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.

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(See AR 329).

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As a result of her impairments, she no longer is able to

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run, jog, climb, or play at the park with her children.

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impairments affect her sleep; she cannot sleep, she has pain

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in her back and legs, and she ends up playing “lots of
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Her

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mindgames.” Her impairments affect her abilities to dress (it

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takes her about 45 minutes instaead of 10 minutes), to care

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for her hair (her arm and hand hurt), and to use the toilet

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(she gets stuck sitting on the toilet).

She needs special

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reminders to take care of personal needs and grooming and to

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take medicine (she leaves messages on her cell phone in order

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not to forget).

(See AR 329-30).

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She prepares her own meals (i.e., sandwiches, complete

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meals) daily (3 1/2 hours). Her impairments have affected her

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cooking since she drops things.

Her househould chores are

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laundry (4 hours, 2 times a week) and cleaning up (4 hours

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daily).

She

goes

outside,

walking

and

using

public

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transportation, 2 to 3 times a week.

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but does not drive.

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for food, children’s clothes, school supplies, bedding, and

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kitchen and bath items (2 to 3 hours, 2 times a month).

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is able to pay bills, count change, handle a saving account,

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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).

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Her hobbies and interests are running, jogging, reading

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(every day), playing sports, playing with her children (3

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hours daily), and watching television (4 1/2 hours daily)

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Since her impairments began, she cannot run or jog, and she

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does not play well with her children because of her pain (but
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“she still do[es] what a mother has to do”).

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with others 3 times a month, going out to eat, going to malls,

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and talking on the phone once a day, and getting together with

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a friend once a week.

She spends time

She goes to church and her mother’s and

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sister’s house 25 times a month, but needs to be accompanied
and to be reminded to go places. (See AR 332-33).

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Her impairments affect her lifting (she can lift only 10

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pounds), squatting, bending, standing, reaching, walking,

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sitting, kneeling, seeing, understanding and using hands. She

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can walk for 10 to 20 minutes before he has to rest, and then

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must rest for 30-45 minutes before she can resume walking.

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She can pay attention for 5 to 10 minutes.

She cannot finish

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what she starts. She cannot follow written instructions. She

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cannot follow spoken instructions very well; she has to be

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told 3 to 4 times.

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figures very well when they are wrong or lie to her.

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never been fired or laid off from a job because of problems

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She does not get along with authority

getting along with other people.

She has

She does not handle stress

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very well; she just goes for a walk, takes a long shower,

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plays music and cries. She does not handle changes in routine

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well.

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prescribed glasses. (See AR 333-34).

She uses a cane, a prescribed brace/splint, and

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10

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Plaintiff made the following statements in a “Pain Questionnaire”

2 dated September 13, 2013:
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4

Beginning in August 2008, she has had pain in her lower

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back, right shoulder, knees and right hand.

The pain is an

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achey, stabbing sharp pain, which spreads to her neck, up her

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back and down to her feet.

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and her knees to go out so she cannot walk.

The pain causes her back to lock
Every day she has

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the pain, which generally lasts 2-4 hours.

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activity that brings on the pain. Because of the pain she can

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Walking is one

no longer run, jog, hold things (i.e., at the market), or play

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with her children at the park.

She puts on hot packs, takes

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long, hot baths, and wears a brace to relieve the pain.

(AR

335-37).

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Plaintiff testified at the January 28, 2015 administrative hearing

19 as follows (see AR 52-65):
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She completed the 11th grade.

She has five children

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ranging from 20 years old to 2 years old (20, 18, 14, 7 and

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2), and only the 20-year-old does not live with her. She does

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not have to do all the cooking and cleaning; her 18-year-old

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and her 15-year-old children (both of whom have disabilities)

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help her.

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around 2009.

Her last job was as a full-time hotel housekeeper
She worked there from July 2007 to August 2009,
11

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when she got hurt and was told not to come back.

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then, she worked for a couple of years as a stocker at a

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retail store.

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Prior to

She is not able to work because of a bad back,

a right broken ankle (injured in a car accident), a right

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6

dislocated shoulder (injured during a fall), carpal tunnel in

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her hands (but worse in her right hand), a right knee issue

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(injured during a fall; her right knee issue exacerbated her

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back injury); and a head injury (injured during a fall 3 weeks

10

earlier).

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55-61, 63-67).

She takes medicine (a pump) for asthma.

(See AR

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She can walk for about 5 minutes before she has to stop

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15

and rest.

She can sit for about 3 minutes before she needs to

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change position, i.e., stand up, walk a little. She lies down

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when her back starts to really hurt.

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pounds.

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weighs 26 or 27 pounds (“because that’s what a mother needs to

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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).

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In 2007, she was told about having a surgery on the back

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of her neck (but she did not proceed with it because a co-

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worker got worse following a shoulder and arm surgery).

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was also told about having a surgery on her hand and/or wrist.

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Thirty years ago, she was told about having a surgery on her

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12

She

1

ankle (which she decided not to do because she thought it

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would heal on its own).

(See AR 63-64).

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4

When asked whether she has any psychological problems,

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6

she stated that she cannot remember a lot of things (she uses

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her phone to remind her of dates of things like a hearing),

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and that she reads and writes maybe like an eighth-grader.

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(See AR 64-65).

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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

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addressed Plaintiff’s credibility as follows:

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17

The

undersigned

finds

the

claimant’s

allegations

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concerning the intensity, persistence and limiting efects of

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her symptoms are less than fully credible.

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debilitating pain are inconsistent with the objective medical

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evidence

and

the

claimant’s

admitted

The allegations of

activities,

which

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23

indicates

an

attempt

by

the

claimant

to

exaggerate

the

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severity of her symptoms.

The claimant admitted she was able

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to walk (up to five miles) and use public transportation, do

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some household chores, prepare meals, and go out alone.

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tasks are within the residual functional capacity assessed

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herein, and the physical and mental abilities and social
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These

1

interactions required in order to perform those activities are

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the same as those necessary for obtaining and maintaining

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employment.

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reflects work activities after the alleged onset date.

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Furthermore, as mentioned earlier, the record

record showed the claimant worked in 2013 (Ex. 9D).

The

Although

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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.

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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

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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

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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

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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

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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
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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
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12
13
14

/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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