David Farrington v. Jo Anne B Barnhart

Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 1 of 13 Page ID #:17 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNI...

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Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 1 of 13 Page ID #:17

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

8 9 10 11

DAVID FARRINGTON,

12

Plaintiff,

13

v.

14

JO ANNE B. BARNHART, Commissioner of Social Security,

15 16

Defendant.

) ) ) ) ) ) ) ) ) ) ) )

No.

CV 04-4019-JTL

MEMORANDUM OPINION AND ORDER

17 18

PROCEEDINGS

19

On June 4, 2004, David Farrington (“plaintiff”) filed a Complaint

20

seeking review of the Commissioner's denial of his application for

21

disability insurance benefits.

22

Consent to Proceed Before United States Magistrate Judge Jennifer T.

23

Lum.

24

Complaint.

25

Stipulation.

26

On July 2, 2004, the parties filed a

Thereafter, on December 28, 2004, defendant filed an Answer to On

April

12,

2005,

the

parties

The matter is now ready for decision.

27

///

28

///

filed

their

Joint

Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 2 of 13 Page ID #:18

BACKGROUND

1

On June 27, 2001, plaintiff filed an application for supplemental

2 3

security income benefits.

4

Plaintiff alleged that, beginning on October 1, 1996, he was unable to

5

work because of a heart problem, shortness of breath, and fatigue.

6

(AR at 27, 32).

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benefits, both initially and upon review.

8 9

(Administrative Record [“AR”] at 40-43).

The Commissioner denied plaintiff’s application for

Thereafter,

plaintiff

requested

(AR at 27-30, 32-35). a

hearing

before

an

Administrative Law Judge (“ALJ”). (AR at 36). On September 26, 2002,

10

the ALJ conducted a hearing in Lancaster, California.

(AR at 177-

11

196).

counsel

12

testified.

(AR at 177-193).

13

testified.

(AR at 193-196).

Plaintiff

On

14

January

appeared

13,

2003,

the

hearing

with

his

and

Ruth Arnush, a vocational expert, also

the

ALJ

issued

his

decision

denying

15

benefits.

16

plaintiff

17

hypertension and asthma.

18

these impairments did not meet or equal any of the criteria contained

19

in the Commissioner’s Listing of Impairments, 20 C.F.R. Section 404,

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Subpart P, Appendix 1.

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plaintiff’s complaints of totally disabling limitations were not fully

22

credible.

23

residual functional capacity to perform a significant range of medium

24

work.

25

disabled pursuant to the Social Security Act.

26

(AR at 13-18).

at

suffered

(AR at 18).

(Id.).

from

In his decision, the ALJ concluded that the

following

(AR at 17).

severe

impairments:

According to the ALJ, however,

(AR at 14, 17).

The ALJ also found that

The ALJ concluded that plaintiff retained the

Ultimately, the ALJ concluded that plaintiff was not (Id.).

Plaintiff filed a timely request with the Appeals Council for

27

review of the ALJ’s decision.

(AR at 8).

28

Appeals Council affirmed the ALJ’s decision. 2

On April 6, 2004, the (AR at 3-7).

Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 3 of 13 Page ID #:19

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PLAINTIFF'S CONTENTIONS

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Plaintiff makes the following claims:

3

1.

4

The ALJ erred in assessing plaintiff’s residual functional

capacity.

5

2.

The ALJ improperly rejected plaintiff’s credibility.

6

3.

The ALJ erred in relying on the vocational expert’s opinion

7

because the vocational expert premised his opinion on an incomplete

8

hypothetical.

9 STANDARD OF REVIEW

10 11

Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision

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to determine whether the ALJ's findings are supported by substantial

13

evidence and whether the proper legal standards were applied. DeLorme

14

v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991).

15

means “more than a mere scintilla” but less than a preponderance.

16

Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v.

17

Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir.

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1988).

19

Substantial evidence

Substantial evidence is “such relevant evidence as a reasonable

20

mind might accept as adequate to support a conclusion.”

Richardson,

21

402 U.S. at 401.

22

consider adverse as well as supporting evidence.

23

803 F.2d 528, 529-30 (9th Cir. 1986).

24

of more than one rational interpretation, the ALJ's decision must be

25

upheld.

This Court must review the record as a whole and Green v. Heckler,

Where evidence is susceptible

Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).

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Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 4 of 13 Page ID #:20

1 2

DISCUSSION A.

3

The Sequential Evaluation The Commissioner has established a five-step sequential process

4

for

determining

5

404.1520, 416.920 (1991); Bowen v. Yuckert, 482 U.S. 137, 140-42

6

(1987).

7

Commissioner determines that the claimant is engaged in substantial

8

gainful activity.

9

evaluates whether the claimant has a medically severe impairment which

10

significantly limits his physical or mental ability to do basic work

11

activities.

12

whether the claimant’s impairment is equivalent to one of a number of

13

listed impairments that are so severe as to preclude substantial

14

gainful activity.

15

of the listed impairments, the claimant is presumptively disabled.

16

Id.

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disabling,

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impairment prevents the claimant from performing work he has performed

19

in the past.

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his past work, the fifth and final step determines whether he is able

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to perform other work in the national economy in light of his age,

22

education and work experience.

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to disability benefits only if he is not able to perform such work.

24

Id.

At

whether

step

one,

a

claimant

disability

Id. at 140.

Id. at 140-41.

is

disabled.

benefits

are

20

C.F.R.

denied

if

§§

the

At step two, the Commissioner

Step three requires a consideration of

Id. at 141.

If the impediment meets or equals one

If the impairment is not one that is conclusively presumed to be step

four

of

the

evaluation

Bowen, 482 U.S. at 141.

determines

whether

the

If the claimant cannot perform

Id. at 142.

The claimant is entitled

25 26

B.

Plaintiff’s Credibility

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Plaintiff objects to the ALJ’s determination that plaintiff

28

lacked credibility. Whenever an ALJ’s disbelief of a claimant’s 4

Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 5 of 13 Page ID #:21

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testimony is a critical factor in a decision to deny benefits, as it

2

is here, the ALJ must make explicit credibility findings, supported by

3

“specific, cogent reasons for the disbelief.” Rashad v. Sullivan, 903

4

F.2d 1229, 1231 (9th Cir. 1990).

5

claimant’s testimony must be sufficiently specific for the reviewing

6

court to assess whether the decision was impermissibly arbitrary.

7

Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991).

8 9

At

the

hearing,

An ALJ’s reasons for discrediting a

plaintiff

testified

that

he

had

a

heart

condition, that his ankles swelled up, and he had shortness of breath.

10

(AR at 184).

11

a lot, and he would “fall in and out of sleep a lot.”

12

rejected plaintiff’s subjective complaints for three reasons: 1)

13

plaintiff’s complaints were out of proportion with the objective

14

clinical findings, 2) plaintiff’s conservative treatment conflicted

15

with the seriousness of his complaints, and 3) plaintiff did not

16

cooperate

with

17

discussed

below,

18

credibility were not clear and convincing.

19 20

1.

Plaintiff said he was tired all the time, did not sleep

his

physicians’

the

ALJ’s

treatment

reasons

for

(Id.)

The ALJ

recommendations. rejecting

As

plaintiff’s

Absence of Objective Findings to Substantiate Plaintiff’s Claims

21

The ALJ cited to a lack of objective medical evidence in his

22

decision to reject plaintiff’s credibility regarding his subjective

23

complaints.

24

to reject a plaintiff’s credibility.

25

evidence of pain other than his own subjective testimony.

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Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (“The claimant need not

27

produce objective medical evidence of the pain or fatigue itself, or

28

the severity thereof.”).

An ALJ cannot rely on an absence of disability findings A claimant need not produce Smolen v.

Nor must a claimant present objective 5

Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 6 of 13 Page ID #:22

1

medical evidence of a causal relationship between the impairment and

2

the type of symptom.

3

Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) ("[O]nce an impairment is

4

medically established, the ALJ cannot require medical support to prove

5

the severity of the pain.").

6

objective medical evidence of an underlying impairment which could

7

reasonably be expected to produce the pain or other symptoms alleged.”

8

Bunnell, 947 F.2d at 344 (internal quotations omitted). This approach

9

reflects the Ninth Circuit’s recognition of the “highly subjective and

10

idiosyncratic nature of pain and other such symptoms,” Smolen, 80 F.3d

11

at 1282, such that "[t]he amount of pain caused by a given physical

12

impairment can vary greatly from individual to individual.”

13

(internal quotations omitted).

14

Put

another

See Smolen, 80 F.3d at 1282; see also Johnson v.

way,

Rather, the claimant need only “produce

"[a]n

individual's

statements

Id.

about

the

15

intensity and persistence of pain or other symptoms or about the

16

effect the symptoms have on his or her ability to work may not be

17

disregarded solely because they are not substantiated by objective

18

medical evidence."

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a claimant must demonstrate only two things:

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objective medical evidence of an impairment or impairments; and (2)

21

[he] must show that the impairment or combination of impairments could

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reasonably be expected to (not that it did in fact) produce some

Social Security Ruling (“SSR”) 96-7p.1

Instead,

“(1) [he] must produce

23 24 25 26 27

1

Social Security Rulings are issued by the Commissioner to clarify the Commissioner’s regulations and policies. Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991). Although they do not have the force of law, they are, nevertheless given deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989).

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Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 7 of 13 Page ID #:23

1

degree of symptom.”

2

In

this

SSR 96-7p; see also SSR 96-3p.

case,

the

ALJ

found

that

plaintiff’s

subjective

3

complaints and limitations were out of proportion with the objective

4

findings in the record.

5

medical evidence of an underlying impairment, the Commissioner may not

6

discredit the claimant’s testimony as to subjective symptoms merely

7

because they are unsupported by objective evidence.

8

at

that

plaintiff’s

9

hypertension and asthma constituted severe impairments.

(AR at 17).

834.

Here,

the

(AR at 16).

ALJ

Once the claimant produces

explicitly

determined

Lester, 81 F.3d

10

Thus, unless there is affirmative evidence showing that the claimant

11

is

12

claimant’s testimony must be “clear and convincing.”

13

findings

14

testimony is not credible and what evidence undermines the claimant’s

15

complaints.

16

Varney v.

17

(9th Cir. 1988).

18

Here,

malingering,

are

the

Commissioner’s

insufficient;

Dodrill v.

rather,

reasons

the

ALJ

for

must

rejecting Id.

the

General

identify

what

Shalala, 12 F.3d 915, 918 (9th Cir. 1993);

Secretary of Health and Human Services, 846 F.2d 581, 584

the

ALJ

found

that

although

plaintiff

testified

to

19

disabling symptoms secondary to congestive heart failure, the progress

20

notes

21

medications and the imaging studies showed no significant cardiac

22

abnormality.

23

examiner, who examined plaintiff on October 16, 2001, noted that while

24

an echocardiogram conducted in April 2000, reported normal results (AR

25

at 143), the normal echocardiogram may be secondary to the fact that

26

the patient had been treated for hypertension with medication. (AR at

27

75).

showed

that

the

claimant’s

(AR at 16).

heart

condition

was

stable

on

But Sohail Afra, M.D., a consultative

At the time Dr. Afra examined him, plaintiff was complaining of

28 7

Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 8 of 13 Page ID #:24

1

dyspnea on exertion.2

2

that a current echocardiogram needed to be performed, and that at

3

times dilated cardiomyopathy was not necessarily reflected on a

4

physical

5

consistently taking medications to treat both his hypertension and

6

congestive

7

furosemide, which is used to treat hypertension, helps plaintiff’s

8

heart beat stronger, and improves swelling and shortness of breath

9

problems.3 Plaintiff was also taking digoxin, amlodipine, lisinopril,

examination.

heart

carvedilol,

(AR at 75).

(Id.).

problems.

which

were

In her report, Dr.

Furthermore,

For

also

example,

used

to

Afra stated

plaintiff

plaintiff

treat

had

was

been

taking

10

and

hypertension

and

11

congestive heart problems.

12

Thus, to the extent the ALJ rejected plaintiff’s statements that he

13

was always tired, had shortness of breath problems, and had a heart

14

condition, the objective findings in the record were not clearly

15

inconsistent with plaintiff’s complaints.

(AR at 50, 64, 65, 67, 73, 121, 163).

16

2.

Conservative Treatment

17

The ALJ also cites to plaintiff’s conservative medical treatment

18

as a basis to reject plaintiff’s subjective complaints regarding his

19

disabled status.

20

plaintiff’s subjective complaints and alleged limitations were not

21

consistent

22

hospitalized and had not received emergency room care.

23

discussed below, this claim fails.

with

(AR at 16).

his

treatment

Specifically, the ALJ notes that

in

that

plaintiff

had

not

been

(Id.).

24 25 26 27 28

2

“Dyspnea” is defined as “shortness of breath, a subjective difficult or distress in breathing, usually associated with disease of the heart or lungs.” Stedman’s Medical Dictionary 556 (27th ed. 2000). 3

See http://my.webmd.com/webmd_today/home/default.htm. 8

As

Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 9 of 13 Page ID #:25

1

An ALJ may rely on a plaintiff’s conservative treatment regimen

2

to

reject

a

plaintiff’s

testimony

of

disabling

3

disabling pain.

4

v. Bowen, the Ninth Circuit affirmed an ALJ’s credibility decision

5

where the ALJ stated, among other things, that the claimant received

6

only minimal conservative treatment for his various complaints.

7

But the Court also noted that a plaintiff could overcome an ALJ’s

8

credibility decision by offering a credible explanation about the lack

9

of more serious treatment.

Fair v. Bowen, 885 F.2d at 604.

limitations

or

For example, in Fair

Id.

See id. (“While such reasoning may not

10

hold up in all cases (there may be claimants with good reasons for not

11

seeking treatment and credible explanations for their ability to work

12

inside but not outside the home), it is sufficient here, as Fair has

13

not put forward any evidence that reconciles the inconsistency between

14

his words and his actions.”); see also Smolen, 80 F.3d at 1284

15

(evidence of good reason existed where claimant had no insurance and

16

could not afford treatment); see also 20 C.F.R. § 404.1530 (listing

17

acceptable reasons for failure to follow prescribed treatment).

18

Here, the ALJ’s reference to plaintiff’s conservative treatment

19

fails for two reasons.

First, the record shows that plaintiff

20

received a variety of medications in order to stabilize his physical

21

impairments.

22

2001, plaintiff had been taking no less than five medications at one

23

time to control his condition.

24

records indicate that he was taking albuterol in order to control his

25

asthma.

26

numerous medications for both his heart condition and hypertension.

27

(AR at 50, 65, 67, 73, 121, 127, 137, 163).

At the time of his examination by Dr. Afra in October

(AR at 67).

(AR at 72-77).

Plaintiff’s treatment

And, as discussed above, plaintiff was taking

28 9

Plaintiff, moreover,

Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 10 of 13 Page ID #:26

1

sought treatment on a routine basis, notwithstanding his homeless

2

condition, lack of money, and reliance on friends for transportation.

3

(AR at 41, 138, 141, 179-80).

4

plaintiff could not afford to seek more treatment.

5

courts have held that “an unexplained, or inadequately explained,

6

failure to seek treatment . . . can cast doubt on the sincerity of [a]

7

claimant’s pain testimony,” Regenniter v.

8

Security Administration, 166 F.3d 1294, 1297 (9th Cir.

9

Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.

Furthermore, the record suggests that Although the

Commissioner of the Social 1999) (citing

1989)), courts have also

10

proscribed the rejection of a claimant’s complaints for lack of

11

treatment when the record establishes that the claimant could not

12

afford it.

13

Cir.

Id.

(Citing Smolen v.

Chater, 80 F.3d 1273, 1284 (9th

1996).

14

Second, the ALJ also stated that there was no evidence that

15

plaintiff had been hospitalized or received emergency care for his

16

asthma or hypertension.

17

reported that he was hospitalized at Harbor UCLA Medical Center for

18

two to three weeks in October 1996.

19

admitted for treatment to the Antelope Valley Rehabilitation Center on

20

December 27, 2001.

21

that plaintiff received urgent care treatment in May 1999.

22

154).

23

hospitalization and emergency care.

But in his Disability Report, plaintiff

(AR at 121).

(AR at 48).

Plaintiff was

Finally, medical records indicate (AR at

Thus, the record reflects that plaintiff did, in fact, require

24

3.

Failure to Follow Treatment Advice

25

The ALJ cites plaintiff’s failure to comply with treatment

26

recommendations suggest that he does not suffer the alleged symptoms

27

that he claims of. Specifically, the ALJ cites plaintiff’s failure to

28

/// 10

Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 11 of 13 Page ID #:27

1

stop smoking, stop using cocaine, and comply with a low sodium diet.

2

(AR at 16).

3

An ALJ may cite a claimant’s failure to follow a doctor’s

4

recommendation to stop smoking and stop using cocaine and to comply

5

with a low sodium diet as a legitimate reason to discredit the

6

claimant’s testimony.

7

proper reasons to discredit claimant’s testimony and stating, “Another

8

such form of evidence is an unexplained, or inadequately explained,

9

failure

to

seek

See Fair v. Bowen, 885 F.2d at 603 (listing

treatment

or

follow

a

prescribed

course

of

10

treatment”); see also Smolen, 80 F.3d at 1284 (ALJ may rely on

11

claimant’s “unexplained or inadequately explained failure to seek

12

treatment or to follow a prescribed course of treatment”).

13

order to do so, the ALJ must first inquire whether plaintiff would

14

have been able to return to work if plaintiff had followed the

15

prescribed treatment.

16

(8th Cir. 2000) (finding that ALJ erred in citing claimant’s failure

17

to

18

quitting would have restored claimant’s “ability to work or [would

19

have] sufficiently improve[d] his condition”);

20

Apfel, 226 F.3d 809, 812-13 (7th Cir. 2000) (en banc) (describing

21

ALJ’s citation to claimant’s failure to quit smoking without first

22

inquiring whether quitting would have restored claimant’s ability to

23

work as “a misuse of the non-compliance regulation”) (citing 20 C.F.R.

24

404.1530(a)).

stop

smoking

But, in

See Burnside v. Apfel, 223 F.3d 840, 843-44

without

first

conducting

inquiry

about

whether

see also Shramek v.

25

Here, the ALJ erred in citing plaintiff’s failure to stop smoking

26

and stop using cocaine because no evidence in the record shows that to

27

do so would have restored plaintiff’s ability to work.

28 11

The ALJ merely

Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 12 of 13 Page ID #:28

1

presumed

2

disabilities if he had followed the recommendations of his physicians.

3

As for his failure to comply with a low sodium diet, plaintiff

that

plaintiff

would

have

been

able

to

overcome

his

4

testified that he was homeless and relied on free meals.

5

86).

6

content in the free meals that the mission serves him, he does not add

7

additional salt to his meal.

8

received general relief of $215 per month, as well as food stamps.

9

(AR at 15).

(AR at 185-

Plaintiff testified that while he cannot control the sodium

(Id.).

The ALJ noted that plaintiff

Although the ALJ appears to suggest that plaintiff could

10

use the money and food stamps to take control of the amount of sodium

11

in his diet, such argument is unpersuasive.

12

ALJ

13

plaintiff received could have been used to prepare low sodium meals

14

when plaintiff received free meals and could use the money to pay for

15

shelter,

16

provided insufficient reasons for rejecting plaintiff’s credibility.

to

suggest

that

clothing,

the

and

relatively

other

It is unrealistic for the

small

personal

amount

needs.

of

money

Overall,

the

that

ALJ

17 18 19

C.

Remand is Required to Remedy the Defects in the ALJ’s Decision The

choice

of

whether

to

reverse

and

remand

for

further

20

administrative proceedings, or to reverse and simply award benefits,

21

is within the discretion of the Court.

22

F.2d 599, 603 (9th Cir. 1989). Remand is appropriate where additional

23

proceedings would remedy the defects in the ALJ’s decision, and where

24

the record should be developed more fully.

25

603; Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1990).

26

of benefits is appropriate where no useful purpose would be served by

27

further administrative proceedings, see Gamble v. Chater, 68 F.3d 319,

28

322-23 (9th Cir. 1995), where the record has been fully developed, see 12

McAlister v. Sullivan, 888

McAlister, 888 F.2d at An award

Case 2:04-cv-04019-JTL Document 17 Filed 08/24/05 Page 13 of 13 Page ID #:29

1

Schneider v. Commissioner of the Social Security Administration, 223

2

F.3d 968, 976 (9th Cir. 2000); Ramirez v. Shalala, 8 F.3d 1449, 1455

3

(9th Cir. 1993), or where remand would unnecessarily delay the receipt

4

of benefits.

5

See Smolen, 80 F.3d at 1292.

Here, the Court finds remand appropriate.

The reasons cited by

6

the ALJ in support of his rejection of plaintiff’s credibility are

7

insufficient.

8

reasons

9

regarding his limitations are not fully credible.4

in

On remand, the ALJ must provide specific and cogent

support

of

his

finding

that

plaintiff’s

allegations

10 11 12

ORDER The Court, therefore, VACATES the decision of the Commissioner of

13

Social Security Administration and REMANDS the case for further

14

administrative proceedings consistent with the Memorandum Opinion and

15

Order.

16 17

LET JUDGMENT BE ENTERED ACCORDINGLY DATED: August 24, 2005

18 19

/s/ JENNIFER T. LUM UNITED STATES MAGISTRATE JUDGE

20 21 22 23 24 25 26 27 28

4

In the Joint Stipulation, plaintiff also contends that the ALJ erred in assessing plaintiff’s residual functional capacity and in relying on the vocational expert’s opinion. As explained above, however, the ALJ’s errors in rejecting plaintiff’s credibility constitute sufficient reason to remand this case. Moreover, depending on the outcome of the proceedings on remand, the ALJ will have an opportunity to address plaintiff’s other arguments again. In any event, the ALJ should consider all the issues raised by plaintiff in the Joint Stipulation when determining the merits of plaintiff’s case on remand. 13