MEMORANDUM OPINION AND ORDER

MARGARET A. NAGLE, Magistrate Judge.

Plaintiff filed a Complaint on February 25, 2013, seeking review of the denial of plaintiff's application for a period of disability and disability insurance benefits ("DIB"). On March 27, 2013, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on December 6, 2013, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and the Commissioner requests that her decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

Plaintiff filed an application for a period of disability and DIB on January 25, 2008.1 (Administrative Record ("A.R.") 20.) Plaintiff, who was born on September 17, 1980 (A.R. 122),2 claims to have been disabled since July 13, 2006 (A.R. 1252) due to a learning disorder, right eye blindness, left knee and ankle injuries, fibromyalgia, lupus, bronchitis/asthma, restless leg syndrome, rapid heart beat, acid reflux, right eye surgery, and closure of her esophagus (A.R. 71, 75).

After the Commissioner denied plaintiff's claim initially, plaintiff requested a hearing. (A.R. 20.) On July 29, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Michael D. Radensky (the "ALJ"). (Id.) Vocational expert Corinne J. Porter and medical expert Samuel Landau, M.D. also testified. (Id.) On November 23, 2009, the ALJ denied plaintiff's claim (A.R. 20-28), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 5-7).

On September 21, 2010, plaintiff sought review in this Court, which on September 23, 2011, remanded the case for further proceedings. On December 29, 2011, the Appeals Council vacated the ALJ's decision and remanded the case for further administrative proceedings consistent with this Court's Order. (A.R. 1433-45.)

On October 1, 2012, plaintiff, who was represented by counsel, again appeared and testified at a hearing before the ALJ. (A.R. 1250.) Vocational expert Ruth A. Arnush and medical expert Arthur Lorber, M.D. also testified. (Id.) On November 9, 2012, the ALJ denied plaintiff's claim. (A.R. 1250-59.) That decision is now at issue in this action.

SUMMARY OF ADMINISTRATIVE DECISION

In his November 9, 2012 decision, the ALJ found that plaintiff meets the insured status requirements of the Social Security Act through June 30, 2015, and plaintiff has not engaged in substantial gainful activity since July 13, 2006, the alleged onset date of her disability. (A.R. 1252.) The ALJ determined that plaintiff has the severe impairments of a history of gastric bypass surgery, atrial arrhythmia, right eye visual impairment, possible seizure disorder, history of left knee impairment, obesity, narcotic dependence, and asthma.3 (Id.) The ALJ concluded, however, that plaintiff does not have an impairment or combination of impairments that meets or medically equals the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (A.R. 1254.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform:

(A.R. 1254.) In making this finding, the ALJ considered the subjective symptom testimony of plaintiff, which the ALJ found was not entirely credible, as well as the medical evidence and opinions of record.

The ALJ found that plaintiff is capable of performing her past relevant work as a tax preparer, assistant hotel manager, receptionist, and child attendant, because "[t]his work does not require the performance of work-related activities precluded by [plaintiff]'s [RFC]." (A.R. 1258.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, from July 13, 2006, the alleged onset date, through November 9, 2012, the date of the ALJ's decision. (A.R. 1259.)

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those `reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was `inconsequential to the ultimate nondisability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.

DISCUSSION

Plaintiff claims that the ALJ failed to articulate legally sufficient reasons for discrediting plaintiff's subjective symptom testimony. (Joint Stipulation ("Joint Stip.") at 4.)

I. The ALJ Improperly Evaluated Plaintiff's Credibility.

Once a disability claimant produces objective medical evidence of an underlying impairment that is reasonably likely to be the source of claimant's subjective symptom(s), all subjective testimony as to the severity of the claimant's symptoms must be considered. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see also 20 C.F.R. § 404.1529(a) (explaining how pain and other symptoms are evaluated). "[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each." Robbins, 466 F.3d at 883. The factors to be considered in weighing a claimant's credibility include: (1) the claimant's reputation for truthfulness; (2) inconsistencies either in the claimant's testimony or between the claimant's testimony and her conduct; (3) the claimant's daily activities; (4) the claimant's work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which the claimant complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. § 404.1529(c).

In his decision, the ALJ cited no evidence of malingering by plaintiff and concluded that "[plaintiff]'s medically determinable impairments could reasonably be expected to cause the alleged symptoms." (A.R. 1255.) Nevertheless, the ALJ determined that plaintiff's "statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they are inconsistent with the above [RFC] assessment." (Id.) Given the absence of malingering, the ALJ's reasons for finding that plaintiff is not credible with respect to her subjective symptom testimony must be "clear and convincing."

The ALJ discredited plaintiff on the ground that she had become dependent upon narcotics. (A.R. 1255.) Specifically, the ALJ noted that "[plaintiff] recently testified [that] she takes six to eight Norco per day. However, there is evidence of narcotic dependence as she has taken as many as 12 Norco per day and reported on several occasions that her medication was stolen or has gone to the pharmacy too early to fill her prescription."4 (Id.) While an ALJ may consider evidence of symptom exaggeration and drug-seeking behavior when evaluating a claimant's credibility, "[a] claimant's drug-dependency by itself ... is not a basis for an adverse credibility determination." Thompson v. Comm'r of SSA, 2014 U.S. Dist. LEXIS 28428, at *20 (D. Or. Mar. 4, 2014) (emphasis in original); see Van Dine v. Astrue, 2012 U.S. Dist. LEXIS 43798 (D. Or. Feb. 27, 2013) (finding that "[i]t was error for the ALJ to discount [plaintiff]'s subjective pain complaints simply because of his dependence on narcotic pain medications"). Here, although the ALJ cited evidence of drug dependence, the ALJ did not explicitly find that plaintiff was exaggerating her symptoms to obtain narcotic pain medication. Moreover, instead of detracting from plaintiff's credibility, plaintiff's need for ongoing, high doses of pain medication could support her claims of significant pain. Van Dine, 2012 U.S. Dist. LEXIS at *138 (noting that "[c]ourts have recognized that although drug-seeking behavior may indicate a claimant is motivated by a desire to obtain narcotics, such behavior is equally indicative of the credibility of a claimant's high pain levels"); see also SSR 96-7p, 1996 SSR LEXIS 4 (noting that "[p]ersistent attempts by the individual to obtain relief of pain or other symptoms, such as by increasing medications, ... may be a strong indication that the symptoms are a source of distress to the individual and generally lend support to an individual's allegations of intense and persistent symptoms"). As such, the ALJ's first ground for finding plaintiff to be not credible is not clear and convincing.

Next, the ALJ found plaintiff to be not entirely credible due to inconsistencies between her testimony and her ability to engage in part-time work as a tax preparer. Specifically, the ALJ noted that "[plaintiff] states she cannot be on her feet long, needs to elevate her leg and ice it, wears a knee brace and cam boot, and requires a cane or crutches. Yet, [plaintiff] worked as a tax preparer until as recently as last year." (A.R. 1255.) In evaluating a claimant's credibility, it is well established that an ALJ may consider inconsistencies between the claimant's testimony and the claimant's conduct. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). At the administrative hearing, although plaintiff testified that she worked as a tax preparer, she also testified that she only worked for a "couple" of hours per day, was able to elevate her foot at work, and could leave whenever she was not feeling well. (A.R. 1332.) In view of these significant accommodations, which the ALJ failed to mention, plaintiff's ability to engage in part-time work does not appear to be inconsistent with her above-noted testimony. As such, the ALJ's reason for discrediting plaintiff is not clear and convincing.

Next, the ALJ found plaintiff to be not credible, because she made inconsistent statements regarding her ability to exercise. Specifically, the ALJ noted that "[plaintiff] testified she does not exercise, but a progress note on July 12, 2011 states she exercises 20 minutes three days per week at a moderate or strenuous level." (A.R. 1255.) Indeed, as properly noted by the Commissioner, there are multiple entries showing that plaintiff exercised several times per week at a moderate to strenuous level. (A.R. 1628, 2336, 2767, 2923, 3185.) At the administrative hearing, when questioned about the July 12, 2011 progress note, plaintiff testified that the exercises she performed included moving her toes and wrists back and forth from a seated position. (A.R. 1324-25.) Plaintiff's testimony, however, is contradicted by the progress notes indicating that she performed moderate to strenuous levels of exercise. Thus, in view of this contradiction, plaintiff's credibility may be diminished.

Lastly, and critically, the Commissioner discredited plaintiff by citing a lack of medical evidence supporting her complaints of disabling pain. Specifically, the ALJ discredited plaintiff's complaints, because "[t]here [wa]s no evidence to support [plaintiff's] restless leg syndrome." (A.R. 1257.) Contrary to the ALJ's contention, however, multiple treatment notes reference plaintiff's diagnosis of restless leg syndrome. (See, e.g., A.R. 570, 804, 869, 1167, 1666.) Symptoms of restless leg syndrome range from discomfort to pain. Plaintiff testified that she experiences pain from her restless leg syndrome and that the pain interferes with her concentration. (A.R. 1327-1328.) The ALJ's failure to consider properly the evidence supporting plaintiff's restless leg syndrome is not insignificant, particularly in view of plaintiff's complaints of pain, discomfort, and difficulties concentrating.

Only one of the reasons stated by the ALJ arguably bears on plaintiff's credibility; the other recited reasons are not clear and convincing. Given the numerous defects in the ALJ's credibility analysis, including his plainly erroneous dismissal of plaintiff's complaints of pain and limitations stemming from her restless leg syndrome, the ALJ's adverse credibility determination is not supported by substantial evidence. Thus, it constitutes reversible error.

II. Remand Is Required.

The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). However, where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. at 1179-81.

Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (remand for further proceedings is appropriate if enhancement of the record would be useful). On remand, the ALJ must correct the above-mentioned deficiencies and errors. After doing so, the ALJ may need to reassess plaintiff's RFC, in which case additional testimony from a vocational expert likely will be needed to determine what work, if any, plaintiff can perform.

CONCLUSION

Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.

IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.

LET JUDGMENT BE ENTERED ACCORDINGLY.