Lorena Salgado v. Jo Anne B Barnhart

Case 2:05-cv-01839-E Document 19 Filed 11/07/05 Page 1 of 10 Page ID #:49 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIF...

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Case 2:05-cv-01839-E Document 19 Filed 11/07/05 Page 1 of 10 Page ID #:49

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LORENA SALGADO,

) ) Plaintiff, ) ) v. ) ) JO ANNE B. BARNHART, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION ) ) ) Defendant. ) ___________________________________)

NO. CV 05-1839-E

MEMORANDUM OPINION AND ORDER

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Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

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HEREBY ORDERED that the decision of the Commissioner of the Social

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Security Administration is reversed and the matter is remanded for

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the immediate calculation and payment of benefits.

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PROCEEDINGS

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Plaintiff filed a complaint on March 16, 2005, seeking review

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of the Commissioner’s denial of benefits.

The parties filed a

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consent to proceed before a United States Magistrate Judge on

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April 7, 2005.

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On August 19, 2005, Plaintiff filed a “Memorandum in Support

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of Plaintiff’s Complaint; Points and Authorities,” which the Court

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construes as a motion for summary judgment.

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motion for summary judgment on October 26, 2005.

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both motions under submission without oral argument.

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Order filed March 18, 2005.

Defendant filed a crossThe Court has taken See L.R. 7-15;

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the

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Administration used proper legal standards.

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Secretary, 763 F.2d 1061, 1064 (9th Cir. 1985).

See Swanson v.

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DISCUSSION

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Plaintiff asserts disability based on a combination of alleged

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impairments (Administrative Record (“A.R.”) 34-39, 83).

In 2000, an

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Administrative Law Judge (“ALJ”) examined the medical record and

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heard testimony from Plaintiff (A.R. 29-42, 125-248).

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dated May 25, 2000, the ALJ found Plaintiff has severe impairments,

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but retains the residual functional capacity to perform her past

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relevant work as a small parts assembler (A.R. 14-19).

In a decision

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In the May 25, 2000 decision, the ALJ rejected the opinion of

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Plaintiff’s treating physician, Dr. Yagoobian, regarding Plaintiff’s

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impairments and work limitations (A.R. 17). 2

In a Physical Residual

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Functional Capacity Questionnaire dated December 6, 1999, Dr.

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Yagoobian listed diagnoses of “lupus arthritis,” “cataract,” “post

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accident injury to Plaintiff’s [right] shoulder and [right] wrist,”

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“HTN” (hypertension), and pterygium growths (A.R. 203).

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Yagoobian further opined that Plaintiff is “incapable of even ‘low

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stress’ jobs”; can sit for only two hours and stand or walk for less

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than two hours in an eight hour work day; must take frequent

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unscheduled breaks lasting half an hour; can only lift and carry less

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than ten pounds occasionally; cannot use her right hand, fingers, and

Dr.

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arm to manipulate objects or reach overhead; and must be absent from

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work more than four times a month due to her impairments (A.R. 204-

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06).

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opinion, reasoning that:

The ALJ accorded “relatively little weight” to Dr. Yagoobian’s

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[Dr. Yagoobian’s] residual functional capacity

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questionnaire is not consistent with either his clinic

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records or the objective clinical findings in those

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records and other evidence.

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objective evidence of lupus, arthritis, or cataract. .

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. .

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[Plaintiff] was incapable of even “low stress” jobs,

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there is no evidence that [Plaintiff] has been

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diagnosed or treated on an ongoing basis for a mental

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impairment.

There is, as noted, no

Similarly, while Dr. Yagoobian stated that

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(A.R. 17).

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The Appeals Council denied review (A.R. 3-4).

Plaintiff then

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sought this Court’s review of the denial of benefits.

See Salgado v.

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Barnhart, No. CV 03-1674-E.

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to articulate sufficient reasons for rejecting Dr. Yagoobian’s

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opinion (A.R. 276-77).

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opinion is not supported by ‘objective evidence’ is not a

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sufficiently specific reason for rejecting a treating physician’s

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testimony” (A.R. 277).

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insufficiently supported the ALJ’s finding that Dr. Yagoobian’s

The Court found that the ALJ had failed

The Court reasoned that “[t]o say that an

The Court also determined to be

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opinion conflicted with Plaintiff’s medical records (A.R. 278-79).

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The Court noted that “[i]f the ALJ believed Dr. Yagoobian’s diagnoses

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or functional capacity assessment were contrary to, or unsupported by

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Plaintiff’s medical records, the ALJ should have made further

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inquiry” (A.R. 280).

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Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996), and Ferguson v.

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Schweiker, 765 F.2d 31, 37 (3rd Cir. 1985) (A.R. 279-80).

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declined to reverse for the immediate payment of benefits and instead

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remanded the case for further administrative action to afford the ALJ

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an opportunity to remedy the identified defects in the decision (A.R.

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281).

The Court cited to 20 C.F.R. § 404.1512(e),

The Court

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On remand, the ALJ received additional medical records and

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heard additional testimony from Plaintiff, a medical expert, and a

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vocational expert (A.R. 299-407).

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to recontact Dr. Yagoobian regarding his opinion, however, in seeming

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disregard of authorities cited in the Court’s previous opinion.

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20 C.F.R. § 404.1512(e); Smolen v. Chater, 80 F.3d at 1288.

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decision dated January 18, 2005, the ALJ again found that Plaintiff

The ALJ apparently made no attempt

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See

In a

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retains the residual functional capacity to perform her past relevant

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work, and consequently again denied benefits (A.R. 258-59).

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again rejected Dr. Yagoobian’s assessment of Plaintiff’s residual

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functional capacity (A.R. 257).

The ALJ

The ALJ stated:

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As described by the medical expert [Dr. Bailey] at the

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hearing, the updated medical evidence of record does

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not show persistent and significantly limiting

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impairment related to lupus arthritis or other

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orthopedic problems, visual limitations, or

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psychological symptoms.

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marked limitations thus seems significantly

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inconsistent with the scant objective evidence shown in

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the updated medical evidence of record.

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Dr. Yagoobian seems to uncritically endorse the

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claimant’s subjective complaints.

Dr. Yagoobian’s assessment of

And therefore,

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(A.R. 257).

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A treating physician’s conclusions “must be given substantial

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weight.”

Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see

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Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must

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give sufficient weight to the subjective aspects of a doctor’s

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opinion . . .

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treating physician”) (citation omitted).

This is especially true when the opinion is that of a

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Even where the treating

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physician’s opinions are contradicted,1 “if the ALJ wishes to

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disregard the opinion[s] of the treating physician, he . . . must

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make findings setting forth specific, legitimate reasons for doing so

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that are based on substantial evidence in the record.”

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Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and

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brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ

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may disregard the treating physician’s opinion, but only by setting

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forth specific, legitimate reasons for doing so, and this decision

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must itself be based on substantial evidence”) (citation and

Winans v.

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quotations omitted); McAllister v. Sullivan, 888 F.2d 599, 602 (9th

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Cir. 1989) (“broad and vague” reasons for rejecting the treating

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physician’s opinions do not suffice); Embrey v. Bowen, 849 F.2d at

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421 (“To say that medical opinions are not supported by sufficient

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objective findings or are contrary to the preponderant conclusions

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mandated by the objective findings does not achieve the level of

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specificity our prior cases have required . . .”).

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The ALJ’s January 18, 2005 decision, like his May 25, 2000

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decision, failed to provide legally sufficient reasons for rejecting

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Dr. Yagoobian’s opinion.

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Yagoobian’s opinion is not supported by the objective medical

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evidence (A.R. 257).

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such an assertion is not a sufficiently specific reason for rejecting

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a treating physician’s opinion.

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421.

As before, the ALJ asserted that Dr.

As the Court previously discussed, however,

See Embrey v. Bowen, 849 F.2d at

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Rejection of an uncontradicted opinion of a treating physician requires a statement of “clear and convincing” reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 6

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The ALJ also appeared to base his rejection of Dr. Yagoobian’s

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opinion on the testimony of the non-examining medical expert,

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Dr. Bailey (A.R. 257).

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however, cannot by itself constitute substantial evidence to reject

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the opinion of a treating or examining physician.

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81 F.3d 821, 830 (9th Cir. 1995).

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therefore did not provide an adequate basis for rejecting Dr.

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Yagoobian’s opinion.

The opinion of a non-examining physician,

Lester v. Chater,

Dr. Bailey’s conflicting opinion

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Defendant argues that an examining, non-treating physician’s

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contradiction of part of Dr. Yagoobian’s opinion constitutes a

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sufficient reason to reject that opinion.

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rejected.

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by a non-treating physician cannot satisfy the ALJ’s duty to state

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specific, legitimate reasons for rejecting the treating physician’s

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opinion.

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1995).

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of the stated reasons, from “clear and convincing” to “specific,

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legitimate.”2

This argument must be

The mere contradiction of a treating physician’s opinion

See, e.g., Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.

Such contradiction only lessens the required persuasiveness

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When a court reverses an administrative determination, “the

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proper course, except in rare circumstances, is to remand to the

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agency for additional investigation or explanation.”

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537 U.S. 12, 16 (2002) (citations and quotations omitted); accord

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Moisa v. Barnhart, 367 F.3d 882, 886-88 (9th Cir. 2004).

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rejected medical opinion evidence, however, should be credited and an

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See footnote 1, supra. 7

INS v. Ventura,

Improperly

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immediate award of benefits should be directed where “(1) the ALJ has

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failed to provide legally sufficient reasons for rejecting such

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evidence, (2) there are no outstanding issues that must be resolved

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before a determination of disability can be made, and (3) it is clear

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from the record that the ALJ would be required to find the claimant

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disabled were such evidence credited.”

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1172, 1178 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (citations

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and quotations omitted).

Harman v. Apfel, 211 F.3d

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The present case satisfies all three of these conditions.

As

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discussed above, the ALJ failed to provide legally sufficient reasons

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for rejecting Dr. Yagoobian’s opinion.

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expert testified that, if Plaintiff’s residual functional capacity

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were as limited as Dr. Yagoobian opined, Plaintiff could not perform

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any work (A.R. 402-06).

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before a determination of disability can be made, and it is clear

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from the record that, if Dr. Yagoobian’s opinion were credited, the

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ALJ would have to find Plaintiff disabled.

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entitled to the immediate calculation and payment of benefits.

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e.g., Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (granting

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award of benefits rather than remand for further proceedings, where

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vocational expert testified that, if the plaintiff’s improperly

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rejected testimony regarding his subjective pain were credited, the

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plaintiff could not work); Reddick v. Chater, 157 F.3d 715, 729-30

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(9th Cir. 1998) (same); Varney v. Secretary of Health and Human

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Services, 859 F.2d 1396, 1400 (9th Cir. 1988) (same).

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In addition, the vocational

Thus, no other issues need to be resolved

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Plaintiff therefore is See,

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Immediate award of benefits is appropriate for another reason.

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This Court previously reversed and remanded based on the

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Administration’s failure to provide sufficient reasons for rejecting

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Dr. Yagoobian’s opinion.

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because the Administration has failed to remedy this error.

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the Court already afforded the Administration the opportunity

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(contemplated in INS v. Ventura) “to consider in the first instance

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an issue that [the Administration] had not previously addressed.”

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See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004).

The Court now reverses a second time Thus,

Under

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these circumstances, the Court need not provide the Administration

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with another opportunity to correct its repeated error.

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(“Allowing the Commissioner to decide the issue again would create an

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unfair ‘heads we win; tails, let’s play again’ system of disability

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benefits adjudication. . . .

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further proceedings can delay much needed income for claimants who

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are unable to work and are entitled to benefits, often subjecting

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them to tremendous financial difficulties while awaiting the outcome

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of their appeals and proceedings on remand”) (citations and

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quotations omitted); cf. Ischay v. Barnhart, 383 F. Supp. 2d 1199,

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1224 (C.D. Cal. 2005) (“the ALJ’s repeated disregard of court-ordered

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See id.

Remanding a disability claim for

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remand instructions inspire [sic] no confidence that a remand would

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serve any useful purpose”).

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: November 7, 2005.

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________________/S/___________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE

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