Langley v. Colvin, No. 1:2015cv03102 - Document 29 (E.D. Wash. 2016)

Court Description: ORDER Granting Plaintiff's 14 Motion for Summary Judgment, and Cautioning Counsel. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Langley v. Colvin Doc. 29 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Aug 23, 2016 2 SEAN F. MCAVOY, CLERK 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 KRISTA LANGLEY, 10 Plaintiff, 11 v. 12 13 14 No. 1:15-CV-03102-JTR ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND CAUTIONING COUNSEL CAROLYN W. COLVIN, Commissioner of Social Security, 15 Defendant. 16 17 18 BEFORE THE COURT are cross-motions for summary judgment. ECF No. 141, 26. Attorney D. James Tree represents Krista Langley (Plaintiff); Special 19 20 1 The Court notes the following inappropriate language employed by counsel 21 in Plaintiff’s Motion for Summary Judgement: “Rather than properly considering 22 the medical record as a whole, as the ALJ was required to do, he instead cherry- 23 picked portions of General Appearance examinations—many unrelated to 24 [Plaintiff’s] psychiatric treatment—and mental status examinations to support his 25 predetermined conclusion that she is not disabled.” ECF No. 14 at 14. 26 This is not the only instance of objectionable phraseology over this 27 attorney’s signature in recent cases before this Court. See Douglas v. Colvin, 1:15- 28 cv-3119-JTR, ECF No. 13 at 7 (“[Plaintiff] applied for benefits in 2011 and SSA ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 Assistant United States Attorney Martha A. Boden represents the Commissioner of 2 Social Security (Defendant). The parties have consented to proceed before a 3 magistrate judge. ECF No. 5. After reviewing the administrative record and the 4 5 again found he was limited to less than a full range of light work, but denied him 6 because he was still 54 years old. Tr. 119. [Plaintiff] was 55 years old on his 7 current application date for SSI, therefore, the only way the ALJ could deny [the] 8 claim was to find he could perform medium work and/or reclassify his past 9 relevant work.”); Vargas v. Colvin, 1:15-cv-03078-JTR, ECF No. 23 at 5 (“The 10 prior ALJ’s decision was overturned when the prior ALJ relied on reviewing only 11 physicians to find [Plaintiff] could perform light work, despite evidence that 12 [Plaintiff] was limited to sedentary work by his treating physician. Tr. 109, 124, 13 509. Now that [Plaintiff’s] age category had increased and he would be found 14 disabled if limited to light work this ALJ increased his RFC to medium work 15 despite no doctor offering an opinion above light work, and only reviewing doctors 16 finding he could perform as much as light work.”). Nor is this the first time this 17 Court has brought the matter to counsel’s attention. See Vargas v. Colvin, 1:15-cv- 18 03078-JTR, ECF No. 24 at 18 (“Finally, in Plaintiff’s Reply, ECF No. 23 at 6, line 19 15, there is language that, intentionally or carelessly, could appear to question the 20 motivation of the Administrative Law Judge who heard this matter. The Court 21 finds no basis for such language, and no place for it in these proceedings.”). 22 The quoted language and inflections are gratuitous to any legal or factual 23 argument, but imply misconduct on the part of Administrative Law Judges. Such 24 innuendo is improper and unprofessional. Recklessly impugning the integrity of 25 an adjudicatory officer goes beyond zealous advocacy and can be a violation of 26 professional ethics. See Washington State Bar Association R.P.C. 8.2(a). If 27 counsel is concerned about the conduct of an ALJ, the Social Security 28 Administration has procedures to raise the issue. See S.S.R. 13-1p. ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s Motion for 2 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 3 REMANDS the matter to the Commissioner for additional proceedings pursuant to 4 42 U.S.C. § 405(g). 5 JURISDICTION 6 Plaintiff filed applications for Supplemental Security Income (SSI) and 7 Disability Insurance Benefits (DIB) on July 29, 2011 and August 25, 2011, 8 respectively, alleging disability since October 22, 2010, due to severe anxiety, 9 schizophrenia, fibromyalgia, and depression. Tr. 213-222, 229, 233. The 10 applications were denied initially and upon reconsideration. Tr. 124-130, 138-149. 11 Administrative Law Judge (ALJ) Verrell Dethloff held a hearing on September 12, 12 2013, and heard testimony from Plaintiff, medical expert Robert McDevitt, M.D., 13 and vocational expert Trever Duncan. Tr. 16-57. The ALJ issued an unfavorable 14 decision on September 27, 2013. Tr. 103-119. The Appeals Council denied 15 review on April 13, 2015. Tr. 1-6. The ALJ’s September 27, 2013, decision 16 became the final decision of the Commissioner, which is appealable to the district 17 court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review 18 on June 16, 2015. ECF No. 1. STATEMENT OF FACTS 19 The facts of the case are set forth in the administrative hearing transcript, the 20 21 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 22 here. 23 Plaintiff was 18 years old at the alleged date of onset. Tr. 213. Plaintiff 24 completed the tenth grade in 2009 and attended some special education courses. 25 Tr. 234. Plaintiff reported that she attempted to work as a dishwasher and picking 26 apples, but found both jobs too stressful and each lasted less than a week. Tr. 402. 27 Plaintiff’s earnings record shows very limited earnings from Strand Orchards LLC 28 in 2007. Tr. 225. ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 2 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 5 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 6 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 7 not supported by substantial evidence or if it is based on legal error. Tackett v. 8 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 9 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 10 another way, substantial evidence is such relevant evidence as a reasonable mind 11 might accept as adequate to support a conclusion. Richardson v. Perales, 402 12 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 13 interpretation, the court may not substitute its judgment for that of the ALJ. 14 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 15 evidence will be set aside if the proper legal standards were not applied in 16 weighing the evidence and making the decision. Brawner v. Secretary of Health 17 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 18 supports the administrative findings, or if conflicting evidence supports a finding 19 of either disability or non-disability, the ALJ’s determination is conclusive. 20 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 21 22 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 23 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 24 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 25 through four, the burden of proof rests upon the claimant to establish a prima facie 26 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 27 burden is met once the claimant establishes that physical or mental impairments 28 prevent her from engaging in her previous occupations. 20 C.F.R. §§ ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do her past relevant work, 2 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 3 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 4 exist in the national economy which the claimant can perform. Batson v. Comm’r 5 of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If the claimant cannot 6 make an adjustment to other work in the national economy, a finding of “disabled” 7 is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 8 ADMINISTRATIVE DECISION On September 27, 2013, the ALJ issued a decision finding Plaintiff was not 9 10 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 11 12 activity since October 22, 2010, the alleged date of onset. Tr. 105. At step two, the ALJ determined Plaintiff had the following severe 13 14 impairments: a cognitive disorder with borderline intellectual functioning, 15 affective disorders variously diagnosed as depression and dysthymia with some 16 indications of psychotic features, anxiety disorders variously diagnosed as 17 agoraphobia and panic disorder, a personality disorder, and substance abuse. Tr. 18 105. 19 At step three, the ALJ found Plaintiff did not have an impairment or 20 combination of impairments that met or medically equaled the severity of one of 21 the listed impairments. Tr. 107. 22 At step four, the ALJ assessed Plaintiff’s residual function capacity and 23 determined she could perform a range of work at all exertional levels with the 24 following nonexertional limitations: “she is limited to simple, repetitive work 25 involving noncollaborative tasks, superficial interaction with coworkers, and no 26 interaction with the public.” Tr. 109. The ALJ concluded that Plaintiff had no past 27 relevant work. Tr. 117. 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 At step five, the ALJ determined that, considering Plaintiff’s age, education, 1 2 work experience and residual functional capacity, and based on the testimony of 3 the vocational expert, there were other jobs that exist in significant numbers in the 4 national economy Plaintiff could perform, including the jobs of production 5 assembler, hand packager, and small product assembler. Tr. 118. The ALJ 6 concluded Plaintiff was not under a disability within the meaning of the Social 7 Security Act at any time from the alleged date of onset, October 22, 2010, through 8 the date of the ALJ’s decision, September 27, 2013. Tr. 119. ISSUES 9 The question presented is whether substantial evidence supports the ALJ’s 10 11 decision denying benefits and, if so, whether that decision is based on proper legal 12 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh 13 medical source opinions; (2) failing to find Plaintiff met a listing at step three, and 14 (3) failing to properly consider the credibility of Plaintiff and lay witnesses. DISCUSSION 15 16 17 A. Medical Source Opinions Plaintiff argues that the ALJ failed to properly consider and weigh the 18 medical opinions expressed by Aaron Burdge, Ph.D., Janis Lewis, Ph.D., Roland 19 Dougherty, Ph.D., and Robert McDevit, M.D. ECF No. 14 at 12-22. 20 In weighing medical source opinions, the ALJ should distinguish between 21 three different types of physicians: (1) treating physicians, who actually treat the 22 claimant; (2) examining physicians, who examine but do not treat the claimant; 23 and, (3) nonexamining physicians who neither treat nor examine the claimant. 24 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 25 weight to the opinion of a treating physician than to the opinion of an examining 26 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). The ALJ should give 27 more weight to the opinion of an examining physician than to the opinion of a 28 nonexamining physician. Id. ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 When a treating physician’s opinion is not contradicted by another 1 2 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 3 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 4 physician’s opinion is contradicted by another physician, the ALJ is only required 5 to provide “specific and legitimate reasons” for rejecting the opinion of the treating 6 physician. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when 7 an examining physician’s opinion is not contradicted by another physician, the 8 ALJ may reject the opinion only for “clear and convincing” reasons. Lester, 81 9 F.2d at 830. When an examining physician’s opinion is contradicted by another 10 physician, the ALJ is only required to provide “specific and legitimate reasons” for 11 rejecting the opinion of the examining physician. Id. at 830-831. The specific and legitimate standard can be met by the ALJ setting out a 12 13 detailed and thorough summary of the facts and conflicting clinical evidence, 14 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 15 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer his 16 conclusions, he “must set forth his interpretations and explain why they, rather 17 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 18 1988). 19 1. Aaron Burdge, Ph.D. 20 On June 11, 2012, Dr. Burdge completed a Psychological/Psychiatric 21 Evaluation for the Washington Department of Social and Health Services (DSHS). 22 Tr. 464-480. Dr. Burdge diagnosed plaintiff with schizophrenia, anxiety disorder, 23 and personality disorder. Tr. 464. Dr. Burdge opined that Plaintiff had multiple 24 limitations in the moderate, marked, and severe ranges and stated that Plaintiff “is 25 unlikely to function adequately in a work setting until her psychological symptoms 26 have been managed more effectively.” Tr. 466. The ALJ gave Dr. Burdge’s 27 opinion “little weight” because the opinion was inconsistent with Plaintiff’s 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 longitudinal treatment history, her performance on mental status examinations, and 2 her independent daily activities. Tr. 114-115. 3 As discussed above, to meet the specific and legitimate standard the ALJ is 4 required to do more than offer his conclusions, he “must set forth his 5 interpretations and explain why they, rather than the doctors’, are correct.” 6 Embrey, 849 F.2d at 421-422. Here, this did not occur. The ALJ simply stated 7 that he gave Dr. Burdge’s opinion “little weight” and provided three conclusory 8 reasons for the determination. Tr. 114-115. The ALJ failed to state how the 9 opinion was inconsistent with Plaintiff’s treatment history, how it was inconsistent 10 with her performance on mental status examinations, or how it was inconsistent 11 with her daily activities. Because the ALJ’s rationale failed to meet the lowest 12 standard to uphold a rejection of Dr. Burdge’s opinion, the ALJ erred. 13 Dr. Burdge was an examining psychologist who performed multiple tests on 14 Plaintiff prior to forming his opinion. See Tr. 466-480. The ALJ failed to supply 15 legally sufficient reasons to reject his opinion. Therefore, this case is remanded for 16 additional proceedings for the ALJ the reweigh Dr. Burdge’s opinion. 17 2. Janis Lewis, Ph.D. 18 On July 14, 2012, Dr. Lewis reviewed the evaluation performed by Dr. 19 Burdge and completed a Review of Medical Evidence form for DSHS finding 20 Plaintiff met the standards for assistance from DSHS starting June 11, 2012, for 21 two years, noting that some limitations may be drug related. Tr. 481. The ALJ 22 gave “little weight” to Dr. Lewis’ form for the same reasons he rejected Dr. 23 Burdge’s opinion. Tr. 114-115. 24 Dr. Lewis is a nonexamining psychologist whose opinion is derived from 25 Dr. Burdge’s earlier opinion. See Tr. 481 (the only records reviewed were those 26 from Dr. Burdge). Considering the case is being remanded for the ALJ to reweigh 27 Dr. Burdge’s opinion, the ALJ is further instructed to reweigh Dr. Lewis’ opinion 28 on remand. ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 3. Ronald Dougherty, Ph.D. 2 On September 28, 2011, Dr. Dougherty completed a Psychological 3 Evaluation for Social Security. Tr. 400-416. He diagnosed Plaintiff with a 4 cognitive disorder, dysthymia, agoraphobia, panic disorder, psychiatric disorder, 5 and a rule out diagnosis of paranoid schizophrenia. Tr. 405. Additionally, he 6 found that Plaintiff had a full scale IQ score in the borderline range and dependent 7 personality traits. Id. Dr. Dougherty opined that while Plaintiff’s social skills 8 appeared to be fair, “[h]er thinking was basically logical and goal directed. She 9 has not been able to function on the job because of what she reports as severe 10 anxiety when away from home. She should be able to understand, remember, and 11 follow simple directions, as she did during the testing.” Tr. 406. 12 The ALJ gave Dr. Dougherty’s evaluation and opinion “little weight” for the 13 same reasons he gave Dr. Burdge’s opinion little weight. Tr. 114-115. These three 14 reasons fail to meet the specific and legitimate standard and were in error. See 15 supra. Additionally, the ALJ found that Dr. Dougherty’s opinion was inconsistent 16 with the testing he completed and it was “based in large part if not entirely on the 17 claimant’s self-report of severe anxiety.” Tr. 115. 18 While the ALJ is accurate that internal inconsistencies with the 19 psychologist’s report is a legally sufficient reason to reject an opinion, See Bayliss 20 v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005), the ALJ failed to state how Dr. 21 Dougherty’s opinion was inconsistent with the test results from the day of the 22 evaluation. Tr. 115. Plaintiff took the Trail Making Test, the Wechsler Adult 23 Intelligence Scale-IV (WAIS-IV), and the Wechsler Memory Scale (IV (WMS- 24 IV). Tr. 403-404, 407-416. Results from the Trails Making Test suggested the 25 presence of a moderate cerebral impairment. Tr. 403. The WAIS-IV placed 26 Plaintiff’s intelligence in the borderline range. Tr. 404. The WMS-IV showed 27 Plaintiff’s auditory and visual memory in the low average range, her visual 28 working memory in the borderline range, her immediate memory in the average ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 range, and her delayed memory in the extremely low range. Id. The ALJ failed to 2 state how these test results were inconsistent with claimant being cooperative with 3 logical and goal-directed thinking and capable of understanding, remembering, and 4 following instructions. Therefore, this reason fails to meet even the specific and 5 legitimate standard. Additionally, the ALJ found that Dr. Dougherty’s opinion was based on 6 7 Plaintiff’s unreliable self-reports that she suffered severe anxiety when away from 8 home. Tr. 115. A doctor’s opinion may be discounted if it relies on a claimant’s 9 unreliable self-report. Bayliss, 427 F.3d at 1217; Tommasetti v. Astrue, 533 F.3d 10 1035, 1041 (9th Cir. 2008). But the ALJ must provide the basis for his conclusion 11 that the opinion was based on a claimant’s self-reports. Ghanim v. Colvin, 763 12 F.3d 1154, 1162 (9th Cir. 2014). While Dr. Dougherty’s opinion does state that 13 Plaintiff “has not been able to function on the job because of what she reports as 14 severe anxiety when away from home,” the ALJ did not indicate how the 15 remainder of Dr. Dougherty’s opinion was swayed by Plaintiff’s self-reports to 16 support his conclusion that the opinion was based “in large part if not entirely on 17 claimant’s self-report.” Tr. 115, 406. In Ghanim, the Ninth Circuit held that 18 “when an opinion is not more heavily based on a patient’s self-reports than on 19 clinical observations, there is no evidentiary basis for rejecting the opinion.” 763 20 F.3d at 1162. Here, substantial evidence does not support that Dr. Dougherty’s 21 whole opinion was more heavily based on Plaintiff’s self-reports than on Dr. 22 Dougherty’s clinical observations and testing results. Therefore, this reason fails 23 to meet the specific and legitimate standard as well. In conclusion, the ALJ failed to state a legally sufficient reason for rejecting 24 25 Dr. Dougherty’s opinion. Therefore, on remand, the ALJ is to reweigh the 26 opinion. 27 /// 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 4. Robert McDevitt, M.D. 2 At the September 12, 2013 hearing, Dr. McDevitt testified that Plaintiff met 3 listings 12.03 and 12.04 with underlying substance abuse problems. Tr. 48-49. He 4 further stated that she could not currently perform simple, repetitive tasks, but 5 could with medication and a structured environment, concluding that she could 6 only work in a sheltered program. Tr. 48. The ALJ rejected Dr. McDevitt’s 7 opinion for the same three reasons he rejected the opinions of Dr. Burdge, Dr. 8 Lewis and Dr. Dougherty. Tr. 114-115. Additionally, the ALJ noted that Dr. 9 McDevitt’s opinion was confusing and equivocal. Tr. 115. 10 Here, Dr. McDevitt was a nonexamining psychiatrist who reviewed the 11 record made available at the time of the hearing. Based on his testimony, it is clear 12 that his opinion is derived, at least in part, from the opinions of Dr. Dougherty and 13 Dr. Burdge. Tr. 47, 50. Considering the ALJ has been instructed to reweigh both 14 Dr. Dougherty’s and Dr. Burdge’s opinions, he is further instructed to reweigh the 15 opinion of Dr. McDevitt on remand. Considering Dr. McDevitt opined that 16 Plaintiff met listings 12.03 and 12.04, the ALJ is further instructed to readdress 17 step three on remand and address Dr. McDevitt’s testimony in his strep three 18 evaluation. The ALJ is to have a psychological expert available at a new hearing 19 to testify regarding step three. He will develop the testimony so as to not be left 20 confused by the expert’s testimony. 21 B. 22 23 Credibility Plaintiff contests the ALJ’s determination that Plaintiff and her mother were less than fully credible. ECF No. 14 at 22-24. 24 It is generally the province of the ALJ to make credibility determinations, 25 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 26 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 27 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 28 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 1273, 1281 (9th Cir. 1996); Lester, 81 F.3d at 834. “General findings are 2 insufficient: rather the ALJ must identify what testimony is not credible and what 3 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834. An ALJ 4 must give “germane” reasons to discount evidence from a lay witness. Dodrill v. 5 Shalala, 12 F.3d 915, 119 (9th Cir. 1993). 6 Considering the evaluation of a claimant’s statements regarding limitations 7 relies in part on the assessment of the medical evidence, See 20 C.F.R. § 8 404.1529(c); S.S.R. 16-3p, the ALJ is further instructed to make a new assessment 9 as to whether Plaintiff’s subjective symptom statements are consistent with the 10 record as a whole in accord with S.S.R. 16-3p. Additionally, the ALJ is instructed 11 to make a new determination in weighing the statements of Plaintiff’s mother. 12 REMEDY 13 The decision whether to remand for further proceedings or reverse and 14 award benefits is within the discretion of the district court. McAllister v. Sullivan, 15 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 16 where “no useful purpose would be served by further administrative proceedings, 17 or where the record has been thoroughly developed,” Varney v. Secretary of Health 18 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 19 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 20 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 21 (noting that a district court may abuse its discretion not to remand for benefits 22 when all of these conditions are met). This policy is based on the “need to 23 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 24 outstanding issues that must be resolved before a determination can be made, and it 25 is not clear from the record that the ALJ would be required to find a claimant 26 disabled if all the evidence were properly evaluated, remand is appropriate. See 27 Benecke v. Barnhart, 379 F.3d 587, 595-596 (9th Cir. 2004); Harman v. Apfel, 211 28 F.3d 1172, 1179-1180 (9th Cir. 2000). ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 Because of the evidence of substance abuse problems in the record, there is 2 not sufficient evidence that the ALJ would be required to find Plaintiff disabled if 3 all the evidence were properly evaluated. Therefore, the case is remanded for the 4 ALJ to readdress the medical source opinions in the record at step three and in the 5 residual functional capacity determination, including the opinion of Dr. McDevitt. 6 Additionally, the ALJ is instructed to supplement the record with any outstanding 7 evidence and make a new assessment as to whether Plaintiff’s subjective symptom 8 statements are consistent with the record as a whole. The ALJ will call a 9 psychological expert to testify at the hearing. Should a mental disorder listing be 10 identified as relevant, the ALJ is to take testimony specifically addressing the B 11 criteria, including restrictions of activities of daily living, difficulties maintaining 12 social functioning, difficulties in maintaining concentration, persistence, or pace, 13 and episodes of decompensation. The ALJ will also take testimony from the 14 expert regarding a narrative residual functional capacity for Plaintiff. Due to 15 Plaintiff’s history of substance use, if the record supports a diagnosis of a 16 substance abuse disorder and Plaintiff were found disabled at steps three or five, 17 the ALJ would be required to consider the materiality of Plaintiff’s substance use 18 and complete the five step evaluation process again excluding any limitations 19 caused by substance use. See S.S.R. 13-2p. CONCLUSION 20 21 Accordingly, IT IS ORDERED: 22 1. 23 Defendant’s Motion for Summary Judgment, ECF No. 26, is DENIED. 24 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 25 GRANTED, in part, and the matter is REMANDED to the Commissioner for 26 additional proceedings consistent with this Order. 3. 27 28 Application for attorney fees may be filed by separate motion. /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 The District Court Executive is directed to file this Order and provide a copy 2 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 3 and the file shall be CLOSED. 4 DATED August 23, 2016. 5 6 7 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 14

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