Johnson v. Commissioner of Social Security, No. 1:2016cv03062 - Document 19 (E.D. Wash. 2017)

Court Description: ORDER granting ECF No. 15 Plaintiff's Motion for Summary Judgment; and denying ECF No. 17 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (TR, Case Administrator)

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Johnson v. Commissioner of Social Security Doc. 19 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 ANDRE JOHNSON, No. 1:16-cv-03062-MKD 7 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 8 Plaintiff, vs. 9 COMMISSIONER OF SOCIAL ECF Nos. 15, 17 10 SECURITY, 11 12 Defendant. BEFORE THE COURT are the parties’ cross-motions for summary 13 judgment. ECF Nos. 15, 17. The parties consented to proceed before a magistrate 14 judge. ECF No. 7. The Court, having reviewed the administrative record and the 15 parties’ briefing, is fully informed. For the reasons discussed below, the Court 16 grants Plaintiff’s motion (ECF No. 15) and denies Defendant’s motion (ECF No. 17 17). 18 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 3 1383(c)(3). 4 5 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited; the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 10 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 11 (quotation and citation omitted). Stated differently, substantial evidence equates to 12 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 13 citation omitted). In determining whether the standard has been satisfied, a 14 reviewing court must consider the entire record as a whole rather than searching 15 for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. If the evidence in the record “is 18 susceptible to more than one rational interpretation, [the court] must uphold the 19 ALJ’s findings if they are supported by inferences reasonably drawn from the 20 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 3 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 4 party appealing the ALJ’s decision generally bears the burden of establishing that 5 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 6 7 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 13 impairment must be “of such severity that he is not only unable to do his previous 14 work[,] but cannot, considering his age, education, and work experience, engage in 15 any other kind of substantial gainful work which exists in the national economy.” 16 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 19 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner 20 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 2 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 3 404.1520(b); 416.920(b). 4 If the claimant is not engaged in substantial gainful activity, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 7 claimant suffers from “any impairment or combination of impairments which 8 significantly limits [his or her] physical or mental ability to do basic work 9 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 10 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 11 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 12 §§ 404.1520(c); 416.920(c). 13 At step three, the Commissioner compares the claimant’s impairment to 14 severe impairments recognized by the Commissioner to be so severe as to preclude 15 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 16 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 17 severe than one of the enumerated impairments, the Commissioner must find the 18 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 19 If the severity of the claimant’s impairment does not meet or exceed the 20 severity of the enumerated impairments, the Commissioner must pause to assess 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 4 404.1545(a)(1); 416.945(a)(1), is relevant to both the fourth and fifth steps of the 5 analysis. 6 At step four, the Commissioner considers whether, in view of the claimant’s 7 RFC, the claimant is capable of performing work that he or she has performed in 8 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 9 If the claimant is capable of performing past relevant work, the Commissioner 10 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f). 11 If the claimant is incapable of performing such work, the analysis proceeds to step 12 five. 13 At step five, the Commissioner considers whether, in view of the claimant’s 14 RFC, the claimant is capable of performing other work in the national economy. 15 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 16 the Commissioner must also consider vocational factors such as the claimant’s age, 17 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v); 18 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 19 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 20 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 work, analysis concludes with a finding that the claimant is disabled and is 2 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). 3 The claimant bears the burden of proof at steps one through four above. 4 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 5 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 6 capable of performing other work; and (2) such work “exists in significant 7 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); 8 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 9 10 ALJ’s FINDINGS Plaintiff applied for disability insurance benefits and supplemental security 11 income benefits on February 17, 2012. Tr. 180-86, 187-92. In his disability 12 insurance benefits application, Plaintiff alleged an onset date of January 1, 2006. 13 Tr. 180. In his supplemental security income benefits application, Plaintiff alleged 14 an onset date of January 1, 2011. Tr. 187. The applications were denied initially, 15 Tr. 95-102, and on reconsideration, Tr. 104-15. Plaintiff appeared at a hearing 16 before an Administrative Law Judge (ALJ) on October 15, 2013. Tr. 36-66. At 17 the hearing, Plaintiff amended the onset date to April 24, 2011. Tr. 39. On April 18 29, 2014, the ALJ denied Plaintiff’s claim. Tr. 19-28. 19 At the outset, the ALJ determined that the date last insured is December 31, 20 2012. Tr. 21. At step one of the sequential evaluation analysis, the ALJ found 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 Plaintiff has not engaged in substantial gainful activity since April 24, 2011, the 2 alleged onset date. Tr. 21. At step two, the ALJ found Plaintiff has the following 3 severe impairments: adjustment disorder, mixed; history of alcohol-related 4 psychosis, in remission; and history of right clavicle failure. Tr. 22. At step three, 5 the ALJ found Plaintiff does not have an impairment or combination of 6 impairments that meets or medically equals the severity of a listed impairment. Tr. 7 23. The ALJ then concluded that Plaintiff has the RFC to perform medium work 8 with the following additional limitations: 9 10 11 [The claimant is able] to perform less than the full range of medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c). The claimant could frequently reach with his right upper extremity. He could have contact with the public less than 10 percent of the workday and only superficial contact with co-workers. 12 Tr. 24. 13 At step four, the ALJ found Plaintiff is able to perform his past relevant 14 work as a lumber off-bearer. Tr. 27. Alternatively, at step five, after considering 15 the testimony of a vocational expert, the ALJ found there are jobs that exist in 16 significant numbers in the national economy that Plaintiff can perform, such as 17 hand packager and laundry laborer. Tr. 27-28. Thus, the ALJ concluded Plaintiff 18 has not been under a disability, as defined in the Social Security Act, from April 19 24, 2011, through the date of the decision. Tr. 28. 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 On February 19, 2016, the Appeals Council denied review of the ALJ’s 2 decision, Tr. 1-6, making that decision the Commissioner’s final decision for 3 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 4 5 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 him disability insurance benefits under Title II and supplemental security income 7 under Title XVI of the Social Security Act. Plaintiff raises the following issues for 8 review: 9 1. Whether the ALJ properly discredited Plaintiff’s symptom claims; 10 2. Whether the ALJ properly weighed the medical opinion evidence; and 11 3. Whether the ALJ properly identified all of Plaintiff’s severe impairments. 12 ECF No. 15 at 5-6. 13 DISCUSSION 14 A. Adverse Credibility Finding 15 Plaintiff faults the ALJ for failing to rely on reasons that were clear and 16 convincing in discrediting his symptom claims. ECF No. 15 at 13-19. 17 An ALJ engages in a two-step analysis to determine whether a claimant’s 18 testimony regarding subjective pain or symptoms is credible. Molina, 674 F.3d at 19 1112. “First, the ALJ must determine whether there is objective medical evidence 20 of an underlying impairment which could reasonably be expected to produce the 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 pain or other symptoms alleged.” Id. (internal quotation marks omitted). “The 2 claimant is not required to show that [his] impairment could reasonably be 3 expected to cause the severity of the symptom [he] has alleged; [he] need only 4 show that it could reasonably have caused some degree of the symptom.” Vasquez 5 v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 6 Second, “[i]f the claimant meets the first test and there is no evidence of 7 malingering, the ALJ can only reject the claimant’s testimony about the severity of 8 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 9 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 10 citations and quotations omitted). “General findings are insufficient; rather, the 11 ALJ must identify what testimony is not credible and what evidence undermines 12 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 13 Cir. 1995); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ 14 must make a credibility determination with findings sufficiently specific to permit 15 the court to conclude that the ALJ did not arbitrarily discredit claimant’s 16 testimony.”). “The clear and convincing [evidence] standard is the most 17 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 18 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 19 2002)). 20 In making an adverse credibility determination, the ALJ may consider, inter 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 2 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 3 daily living activities; (4) the claimant’s work record; and (5) testimony from 4 physicians or third parties concerning the nature, severity, and effect of the 5 claimant’s condition. Thomas, 278 F.3d at 958-59. 6 This Court finds the ALJ failed to provide specific, clear, and convincing 7 reasons for finding that Plaintiff’s statements concerning the intensity, persistence, 8 and limiting effects of his symptoms “are not entirely credible.” Tr. 24. 9 10 1. Motivation to Work First, the ALJ found Plaintiff’s lack of motivation to work impaired his 11 credibility. Tr. 24-25. An ALJ may properly consider the issue of motivation in 12 assessing credibility. Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992); 13 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (finding an ALJ may 14 draw reasonable inferences regarding a claimant’s motivation to work). Here, the 15 ALJ found Plaintiff’s testimony with respect to his motivation to return to work 16 was “equivocal.” Tr. 24. The ALJ concluded that Plaintiff admitted he never 17 really wanted to work, but “might be motivated to do so for financial gain.” Tr. 18 24-25 (citing Tr. 58). The ALJ noted that in July 2012, Plaintiff was interested in 19 working and hoped his father would hire him as a laborer in a forest products 20 company; however, the ALJ found this job did not work out or was not realistic. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 Tr. 25 (citing Tr. 933). The ALJ further found that in February 2013 Plaintiff said 2 he was interested in returning to work. Tr. 25 (citing Tr. 848). The Court agrees 3 with Plaintiff the ALJ mischaracterized Plaintiff’s testimony. ECF No. 15 at 14-15 4 (citing Tr. 25, 58). When asked at the hearing if he would like to work, Plaintiff 5 responded that he would, but he also said he did not think he was “too capable.” 6 Tr. 58. Plaintiff testified he did not think he was capable of working because he is 7 required “to see my doctor every three months and get a day off”; in addition, 8 Plaintiff stated he has unspecified psychosis and rapid thoughts; moreover, 9 Plaintiff stated he would work if he was “capable” and in his “right mind.” Tr. 58, 10 60. Plaintiff’s statements cited by the ALJ that he was interested in working to 11 make money and did not think he was capable of working do not support a finding 12 of lack of motivation to work. This reason is not supported by substantial evidence 13 in the record. 14 2. 15 Next, the ALJ found Plaintiff’s improvement with medication weakens the Improvement with Medication 16 credibility of Plaintiff’s allegations. Tr. 24-26. An ALJ considers the nature and 17 effectiveness of any treatment a claimant receives for his allegedly disabling 18 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 symptoms. See 20 C.F.R. § 404.1529(c)(3), 416.929(c)(3) (2011);1 see also Warre 2 v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); S.S.R. 96-7p2 3 (conditions effectively controlled with medication are not disabling for purposes of 4 determining eligibility for benefits) (internal citations omitted). 5 The ALJ’s assertion that Plaintiff improved with medication is contradicted 6 by the fact that the record demonstrates that Plaintiff continued to experience 7 psychotic symptoms even after he began taking medication, as discussed more 8 fully infra. See, e.g., Tr. 441 (in November 2011, Plaintiff reported to provider 9 Reese Copeland, M.A., that he was experiencing audio and visual hallucinations; 10 Plaintiff appeared to be compliant with taking his medications); Tr. 919 (in August 11 2012, Plaintiff indicated he was complaint with medications and denied symptoms 12 13 1 These regulations were also amended effective March 27, 2017. The amendments 14 also provide that medication and treatment are important indicators of the intensity 15 and persistence of symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2017). 16 2 S.S.R. 96-7p was superseded by S.S.R. 16-3p effective March 16, 2016. The new 17 ruling also provides that the consistency of a claimant’s statements with objective 18 medical evidence and other evidence is a factor in evaluating a claimant’s 19 symptoms. S.S.R. 16-3p at *6. Nonetheless, S.S.R. 16-3p was not effective at the 20 time of the ALJ’s decision and therefore does not apply in this case. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 yet treatment provider Marc Shellenberger, B.A., observed Plaintiff apparently 2 responding to internal stimuli, indicating active psychotic symptoms). This reason 3 is not supported by substantial evidence in the record. 4 3. 5 Third, the ALJ found the medical record did not support the degree of Lack of Objective Medical Evidence 6 psychiatric limitation alleged. Tr. 22, 24-26. An ALJ may not discredit a 7 claimant’s testimony as to the severity of his symptoms merely because they are 8 unsupported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 9 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991). 10 However, the medical evidence is a relevant factor in determining the severity of a 11 claimant’s pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 12 404.1529(c)(2), 416.929(c)(2) (2011). 13 As discussed above, the ALJ’s finding Plaintiff less than fully credible 14 because he lacked motivation to work, and because medication improved his 15 condition, was not supported by the record. Because the ALJ’s other two reasons 16 for the credibility finding are not clear and convincing, even if the ALJ’s 17 consideration of the objective evidence were reasonable, there would be no legally 18 sufficient basis for the credibility finding since objective evidence cannot be the 19 only factor supporting a credibility determination. As such, the credibility finding 20 is legally insufficient and the matter must be remanded for reconsideration. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 B. Medical Opinion Evidence 2 Plaintiff contends the ALJ erred because he gave too much weight to the 3 opinion of examining psychologist, Jay Toews, Ed.D; less clearly, Plaintiff 4 contends the ALJ gave too little weight to the opinions of examining psychiatrist 5 Jeffrey Jennings, M.D, reviewing physician Eugene Kester, M.D., and Plaintiff’s 6 treatment providers. ECF No. 15 at 7-13. 7 There are three types of physicians: “(1) those who treat the claimant 8 (treating physicians); (2) those who examine but do not treat the claimant 9 (examining physicians); and (3) those who neither examine nor treat the claimant 10 but who review the claimant’s file (nonexamining or reviewing physicians).” 11 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 12 “Generally, a treating physician’s opinion carries more weight than an examining 13 physician’s, and an examining physician’s opinion carries more weight than a 14 reviewing physician’s.” Id. “In addition, the regulations give more weight to 15 opinions that are explained than to those that are not, and to the opinions of 16 specialists concerning matters relating to their specialty over that of 17 nonspecialists.” Id. (citations omitted). 18 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 19 reject it only by offering “clear and convincing reasons that are supported by 20 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 “However, the ALJ need not accept the opinion of any physician, including a 2 treating physician, if that opinion is brief, conclusory and inadequately supported 3 by clinical findings.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 4 Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 5 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 6 may only reject it by providing specific and legitimate reasons that are supported 7 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 8308 3). 9 The opinion of an acceptable medical source such as a physician or 10 psychologist is given more weight than that of an “other source.” See S.S.R. 0611 03p (Aug. 9, 2006), available at 2006 WL 2329939 at *2; 20 C.F.R. § 416.927(a). 12 “Other sources” include nurse practitioners, physician assistants, therapists, 13 teachers, social workers, and other non-medical sources. 20 C.F.R. §§ 14 404.1513(d), 416.913(d). The ALJ need only provide “germane reasons” for 15 disregarding an “other source” opinion. Molina, 674 F.3d at 1111. However, the 16 ALJ is required to “consider observations by nonmedical sources as to how an 17 impairment affects a claimant’s ability to work.” Sprague v. Bowen, 812 F.2d 18 1226, 1232 (9th Cir. 1987). 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 1. 2 Plaintiff contends the ALJ gave too much weight to the opinion of Examining Psychologist-Jay Toews, Ed.D. 3 examining psychologist Jay Toews, Ed.D. ECF No. 15 at 9-13. In November 4 2013, Dr. Toews performed a consultative examination. Tr. 1221-43. Dr. Toews 5 opined that after Plaintiff became sober in April 2011 and took psychotropic 6 medication as prescribed,3 Plaintiff’s symptoms of alcohol-related psychosis went 7 into remission. Tr. 1228. Dr. Toews further opined Plaintiff’s history of cannabis 8 abuse was currently in sustained full remission, and Dr. Toews diagnosed history 9 of alcohol-related psychosis, in remission, and adjustment disorder, mixed. Tr. 10 1228.4 It appears Dr. Toews is the only source who diagnosed history of alcohol11 12 3 On February 21, 2012, for example, Plaintiff reported his medications included 13 Citalopram (Celexa) (an antidepressant), Prazosin (minizide) (for nightmares), 14 Trazadone (for sleep), and the antipsychotic medication Risperdal, prescribed in 15 both pill form and as an injection every two weeks. Tr. 205, 334. 16 4 Dr. Toews stated the “gross time line given for alcohol abuse indicates 17 hallucinations and disordered thinking was correlated with alcohol abuse, 18 suggesting psychotic symptoms were due to alcohol abuse.” Tr. 1224. As noted 19 supra, several records contradict Dr. Toews’ interpretation. 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 related psychosis, in remission. Tr. 1228. The ALJ gave “great weight” to Dr. 2 Toews’ opinion. Tr. 25. 3 “Where an ALJ does not explicitly reject a medical opinion or set forth 4 specific, legitimate reasons for crediting one medical opinion over another, he 5 errs.” Garrison, 759 F.3d at 1012 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 6 (9th Cir. 1996)). Here, the ALJ failed to set forth specific, legitimate reasons for 7 crediting Dr. Toews’ opinion over the consistent opinions of treating, examining, 8 and reviewing sources. 9 First, Plaintiff contends the ALJ erred by giving significant weight to Dr. 10 Toews’ opinion because it is not supported by Plaintiff’s treatment records. ECF 11 No. 15 at 10. Factors relevant to evaluating any medical opinion include the 12 amount of relevant evidence that supports the opinion, the quality of the 13 explanation provided in the opinion, and the consistency of the medical opinion 14 with the record as a whole. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 15 As noted, Dr. Toews opined Plaintiff’s psychotic symptoms correlated with 16 alcohol abuse and went into remission after Plaintiff achieved sobriety. Tr. 1224, 17 1228. The ALJ accepted Plaintiff’s testimony he last consumed alcohol on April 18 24, 2011, and thereafter was clean and sober. Tr. 22 (citing Tr. 54). Plaintiff cites 19 several treatment records after April 2011 that contradict Dr. Toews’ opinion 20 Plaintiff’s psychotic symptoms were related to or caused by alcohol abuse. ECF 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 1 No. 15 at 8, 10. For example, after about seven months of sobriety, on November 2 21, 2011, Plaintiff reported to mental health treatment provider Reese Copeland, 3 M.A., he had been experiencing both visual and auditory hallucinations; Mr. 4 Copeland indicated Plaintiff appeared to be taking medication as prescribed; and 5 there is no mention of substance abuse. Tr. 441. As another example, on 6 December 21, 2011, Mr. Copeland noted Plaintiff was experiencing symptoms. 7 Tr. 395. Mr. Copeland, suspecting substance use was increasing Plaintiff’s 8 psychotic symptoms, ordered urinalysis; test results, however, were negative for 9 substance abuse. Tr. 395-96. As a further example, on August 23, 2012, Plaintiff 10 told treatment provider Marc Shellenberger, B.S., he was taking all medications as 11 prescribed, denied mental health symptoms, and no evidence of active substance 12 use was noted; however, Mr. Shellenberger nonetheless observed Plaintiff 13 appeared to be responding to internal stimuli, indicating active psychotic 14 symptoms.5 Tr. 919. Moreover, as yet another example, in February 2013 15 16 5 An observed response to internal stimuli is usually considered evidence that 17 corroborates the existence of psychotic symptoms. See, e.g., Daniel v. Colvin, 18 2014 WL 2813136 at *5 (C.D. Cal. June 23, 2014) (a treating or examining 19 physician’s observation that a Plaintiff is responding to internal stimuli may be 20 medical evidence that corroborates a diagnosis of schizophrenia); Gallegos v. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 1 treatment provider Angelo Ballasiotes, Pharm. D., changed Plaintiff’s diagnosis 2 from psychosis NOS to schizophrenia, paranoid type, again indicating psychotic 3 symptoms persisted well after Plaintiff became clean and sober. Tr. 847. The ALJ 4 failed to address the treatment records that indicated Plaintiff’s psychotic 5 symptoms did not go into remission after Plaintiff attained sobriety. As the 6 foregoing examples illustrate, Dr. Toews’ diagnosis of history of alcohol-related 7 psychosis, in remission, is contradicted by treatment records indicating Plaintiff’s 8 psychotic symptoms persisted after sobriety. The ALJ failed to set forth specific, 9 legitimate reasons for crediting Dr. Toews’ opinion over the bulk of the record as a 10 whole, including Plaintiff’s treatment records. 11 Second, Plaintiff contends the ALJ erred because he found Dr. Toews based 12 his opinion on a review of the relevant medical records. ECF No. 15 at 11 (citing 13 Tr. 25). Plaintiff contends Dr. Toews’ opinion does not, in fact, appear to be based 14 15 Astrue, 2008 WL 1734376 at *10 (E.D. Cal. Apr. 11, 2008) (Plaintiff had no 16 objective findings of schizophrenia such as suspiciousness, preoccupation with 17 internal stimuli, blunting of affect or loosening of associations); Price v. Berryhill, 18 2017 WL 2417852 at *2 (D. Mont. June 5, 2017) (claimant’s reported chronic 19 auditory hallucinations undermined by lack of observed response to internal 20 stimuli by mental health care providers). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 19 1 on a comprehensive record review. As Plaintiff points out, the ALJ found Dr. 2 Toews based his opinion on the results of psychological testing and mental status 3 examination, review of prior records, and a detailed history; and these provided a 4 “good foundation for his opinion.” ECF No. 15 at 10 (citing Tr. 25, 1225-28). As 5 Plaintiff further notes, the ALJ credited Dr. Toews’ conclusion Plaintiff’s test 6 results were generally in the low average range, memory and cognitive functioning 7 were not impaired, and Plaintiff’s test scores were sufficient for Plaintiff to 8 function in a wide range of semi-skilled jobs and successfully participate in 9 vocational rehabilitation. ECF No. 15 at 10 (citing Tr. 25, 1225-26, 1228). 10 However, Dr. Toews’ opinion referenced only four treatment notes and one 11 evaluation,6 despite a record of over 1,100 pages. Plaintiff contends this indicated 12 that perhaps Dr. Toews did not receive or review the full record; in any event, 13 Plaintiff contends, the treatment record does not support Dr. Toews’ opinion that 14 Plaintiff’s psychotic symptoms were entirely caused by alcohol abuse. ECF No. 15 16 17 6 Dr. Toews referenced a June 2009 CWCMH evaluation that diagnosed 18 unspecified psychosis, two February 2013 CWCMH treatment records, and two 19 additional 2013 treatment records, in June and July, from CWCMH providers. Tr. 20 1221-22. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 20 1 15 at 11 (citing Tr. 1221-22) (records reviewed by Dr. Toews). Plaintiff’s 2 suggestion the record was not provided or reviewed is rejected as speculative. 3 Plaintiff contends the ALJ should have given Dr. Toews’ opinion less 4 weight because it differs markedly from many treatment records. ECF No. 15 at 5 11-12. The consistency of a medical opinion with the record as a whole is a 6 relevant factor in evaluating a medical opinion. Lingenfelter v. Astrue, 504 F.3d 7 1028, 1042 (9th Cir. 2007), Orn, 495 F.3d at 631. Plaintiff is correct that the ALJ 8 appears to have overlooked the inconsistency between Dr. Toews’ opinion and the 9 record as a whole, a relevant factor an ALJ is to consider when weighing a medical 10 opinion. See Orn, 495 F.3d at 631. Plaintiff also contends Dr. Toews’ statement 11 that he based his opinion on information obtained at the evaluation implied Dr. 12 Toews did not base his opinion upon his review of the record. ECF No. 15 at 1113 12 (citing Tr. 1228) (Dr. Toews disagreed with Dr. Jennings’ 2007 diagnosis of 14 psychosis NOS and opined a “diagnosis of Alcohol Induced Psychotic Disorder 15 would have been more consistent with facts (obtained at this examination)).” The 16 Court disagrees because Dr. Toews could have relied on both the record review 17 and the examination results in reaching his conclusions. However, because Dr. 18 Toews’ opinion is inconsistent with the record as a whole, substantial evidence 19 does not appear to support the ALJ’s reason for crediting the opinion. 20 Third, Plaintiff contends the ALJ should have rejected Dr. Toews’ opinion 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 21 1 because Dr. Toews assessed functioning in areas Plaintiff has not alleged 2 limitation. ECF No. 15 at 13. For example, Dr. Toews tested Plaintiff’s cognitive 3 and memory abilities and opined they do not interfere with work-related 4 functioning. Tr. 1228. Plaintiff contends this finding is irrelevant to his 5 functioning because he has never alleged deficits in these areas; instead, Plaintiff 6 has consistently alleged he suffers a psychotic disorder that causes paranoia and 7 visual and audio hallucinations, and these symptoms in turn distract Plaintiff and 8 interfere with his ability to focus.7 ECF No. 15 at 13. However, relevant evidence 9 the ALJ should consider includes psychological test results. Rojas v. Astrue, 2010 10 WL 3663734, at *2 (C.D. Cal. September 13, 2010) (citing S.S.R. 85-16) (relevant 11 evidence includes history, findings, and observations from medical sources 12 (including psychological test results)). Thus, even if Dr. Toews tested functioning 13 14 7 Plaintiff’s contention he suffers from a psychotic disorder is supported, for 15 example, by the diagnoses and records of many treatment providers before and 16 after Plaintiff achieved sobriety. See, e.g., Tr. 283 (in February 2010 Kathleen 17 Mack, ARNP, diagnosed unspecified psychosis); Tr. 595 (in August 2011 Rory 18 Sumners, M.D., noted Plaintiff’s stated history of “unspecified psychosis”); Tr. 19 847 (in 2013 Dr. Ballasiotes changed Plaintiff’s diagnosis from psychosis NOS to 20 schizophrenia, paranoid type). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 22 1 in areas Plaintiff has not alleged limitation, this would not be a legitimate reason to 2 reject Dr. Toews’ opinion. 3 Fourth, Plaintiff contends Dr. Toews erred when he concluded Plaintiff was 4 capable of employment based on Plaintiff’s lack of active psychotic symptoms 5 during the evaluation. ECF No. 15 at 12-13 (citing Tr. 1222) (“By observation he 6 was not delusional or hallucinating and there was no impairment of memory or 7 intellectual functioning noted.”). It may be error for an ALJ to rely on symptom8 free intervals and brief remissions because they may not reflect true functional 9 ability. Garrison, 759 F.3d at 1023 n.22 (“With regard to mental disorders, the 10 Commissioner’s decision must take into account evidence indicating that the 11 claimant’s true functional ability may be substantially less than the claimant 12 asserts . . . Given the unpredictable course of mental illness, [s]ymptom-free 13 intervals and brief remissions are generally of uncertain duration and marked by 14 the impending possibility of relapse.”). The ALJ appears to have assessed 15 limitations based on Plaintiff’s lack of psychotic symptoms on a single “symptom16 free” occasion, a reason that is not legitimate. 17 2. 18 Plaintiff points out Dr. Toews’ opinion is contradicted by several other Other Medical Opinions 19 medical opinions. Here, because the case is being remanded for other reasons, the 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 23 1 ALJ should reconsider Dr. Toews’ opinion together with the medical and other 2 evidence. 3 For example, Plaintiff contends the ALJ should have credited the 2007 4 opinion of Jeffrey Jennings, M.D., an examining psychiatrist, who diagnosed 5 psychosis, not otherwise specified (NOS)8 and found that it is a severe impairment. 6 ECF No. 15 at 7-9 (citing Tr. 1109-12). Dr. Jennings assessed three marked social 7 limitations, one marked cognitive limitation, and opined Plaintiff’s thought 8 disorder and symptoms of schizophrenia impacted his ability to concentrate and 9 perform higher level tasks. Tr. 1110-11. Because the case is being remanded for 10 other reasons, the ALJ should reconsider Dr. Jennings’ opinion together with the 11 medical and other evidence. 12 In addition, Plaintiff notes that in April 2011, reviewing physician Eugene 13 Kester, M.D., diagnosed psychosis NOS and opined Plaintiff’s condition had not 14 medically improved since February 1, 2011. ECF No. 15 at 7-8 (citing Tr. 121815 16 17 18 19 8 Dr. Jennings also diagnosed cannabis dependence and alcohol, cocaine, and 20 amphetamine abuse. Tr. 1110. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 24 1 20).9 Dr. Kester further found treatment providers’ records show they “observed 2 [Plaintiff’s] response to [internal] stimuli.” Tr. 1218-19 (citing Tr. 289) (note 3 dated March 4, 2011 from CWCMH stated Plaintiff “appears to be mumbling 4 softly in response to internal stimuli.”). Significantly, an observed response to 5 internal stimuli is usually considered evidence that corroborates the existence of 6 psychotic symptoms.10 The ALJ did not discuss this opinion. 7 Because this case is being remanded for other reasons, the ALJ should 8 consider Dr. Kester’s opinion together with the medical and other evidence. 9 Plaintiff further, and importantly, points out that treating providers’ records 10 indicate psychotic symptoms persisted even after sobriety, contrary to Dr. Toews’ 11 opinion. ECF No. 15 at 8-9. 12 13 9 Dr. Kester reviewed four treatment records. Tr. 1219. In a report labeled “Re- 14 exam,” Dr. Kester diagnosed psychosis NOS, cannabis dependence, unspecified, 15 and alcohol abuse. Tr. 1218. 16 10 See, e.g., Daniel, 2014 WL 2813136, at *5 (a treating or examining physician’s 17 observation that a Plaintiff is responding to internal stimuli may be medical 18 evidence that corroborates a diagnosis of schizophrenia); Price, 2017 WL 19 2417852, at *2 (claimant’s reported chronic hallucinations undermined by lack of 20 observed response to internal stimuli by mental health care providers). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 25 1 The ALJ credited very little opinion evidence from “other sources.” Tr. 22, 2 25-26. On remand, the ALJ will reconsider all of the evidence, including the 3 opinions and records of treating sources. Here, for example, the ALJ only cited 4 five “other source” treatment records. Tr. 26. All indicated Plaintiff was 5 functioning well. Tr. 26. In April 2012, treatment provider Marc Shellenberger, 6 B.S., reported Plaintiff denied experiencing any mental health symptoms and said 7 he felt stable (citing Tr. 639); in May 2012 Mr. Shellenberger reported Plaintiff 8 appeared to be complying with current medications and stated medications really 9 helped him, including with maintaining stability; Plaintiff remained clean and 10 sober and seemed to be doing well (citing Tr. 626); on February 20, 2013, 11 treatment provider Angelo Ballasiotes, Pharm. D., reported Plaintiff stated he felt 12 motivated to maintain stability so he could eventually return to work; Plaintiff was 13 upbeat, positive, and discussed past and future strategies for maintaining sobriety; 14 Plaintiff was taking medications as prescribed (citing Tr. 848); five days later, on 15 February 25, 2013, Dr. Ballasiotes reported Plaintiff remained stable, maintained 16 sobriety, and did not need to return for medication management for three months 17 (citing Tr. 847). In the fifth and final treatment provider record cited by the ALJ, 18 on June 19, 2013, Dr. Ballasiotes reported Plaintiff stated he (1) had no issues with 19 depression, anxiety, anger or irritability; (2) did not have paranoid thoughts or 20 hallucinations; (3) slept well; (4) did not have thoughts of self-harm or harming 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 26 1 others; (5) had a significantly improved home life; (6) did not have urges to use 2 drugs or alcohol; (7) continued to attend AA meetings and church regularly; and 3 (8) rated himself at 95 on a scale of 0 to 100. Tr. 26 (citing Tr. 808). 4 However, despite these positive records, other treatment provider records 5 indicated Plaintiff’s psychotic symptoms continued well after his period of sobriety 6 began in April 2011. The ALJ does not address this evidence. For example, in 7 December 2011, after Plaintiff had been clean and sober for about eight months, 8 treatment provider Dr. Ballasiotes found Plaintiff reported he was not doing as well 9 as previously; Plaintiff explained he was experiencing audio and visual 10 hallucinations and having paranoid thoughts. ECF No. 15 at 11 (citing Tr. 422, 11 424). As another example, in February 2012 Plaintiff told treatment provider 12 Reese Copeland, M.A., he was experiencing psychotic symptoms. Notably, at the 13 same time, urinalysis for substance abuse was negative. ECF No. 15 at 11(citing 14 Tr. 340, 347). As a further example, in August 2012 treatment provider Mr. 15 Shellenberger observed Plaintiff appeared to be responding to internal stimuli -- a 16 recognized symptom of psychosis.11 ECF No. 15 at 12 (citing Tr. 927). As yet 17 18 11 See e.g., Daniel, 2014 WL 2813136, at *4 (Dr. Smith concluded there was no 19 “evidence at all of a thought disorder or psychosis” and Plaintiff “did not appear to 20 be responding to internal stimuli.”); Gallegos, 2008 WL 1734376, at *10 (Plaintiff 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 27 1 another example, three weeks later, on August 23, 2012, Mr. Shellenberger again 2 observed Plaintiff appeared to be responding to internal stimuli, again indicating 3 active psychotic symptoms. ECF No. 15 at 12 (citing Tr. 919). As even more 4 examples, in October 2012 Plaintiff told Dr. Ballasiotes he was experiencing 5 auditory hallucinations on a periodic basis; ECF No. 15 at 11 (citing Tr. 892); in 6 February 2013 Dr. Ballasiotes changed Plaintiff’s diagnosis from unspecified 7 psychosis to schizophrenia, paranoid type, indicating psychotic symptoms 8 persisted despite sobriety; ECF No. 15 at 8 (citing Tr. 847); and, in July 2013, 9 Plaintiff told Mr. Shellenberger he had been hearing voices for the last two weeks. 10 ECF No. 15 at 12 (citing Tr. 802). Notably, this July 2013 record contradicts the 11 earlier and more positive June 2013 record, Tr. 808, cited by the ALJ. 12 Plaintiff does not directly challenge the ALJ’s treatment of this and other 13 evidence; instead, Plaintiff contends these treatment records refute the ALJ’s 14 conclusions. See, e.g., ECF No. 15 at 10-11 (citing medical records indicating 15 psychosis was not in remission even after Plaintiff became clean and sober).12 The 16 17 had no objective findings of schizophrenia such as suspiciousness, preoccupation 18 with internal stimuli, blunting of affect or loosening of associations). 19 12 These include, in part, the records of treating therapist Evelyn Gillihan and 20 treatment provider Reese Copeland, M.A. ECF No. 15 at 11, citing e.g., Tr. 450 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 28 1 ALJ is required to “consider observations by nonmedical sources as to how an 2 impairment affects a claimant’s ability to work.” Sprague, 812 F.2d at 1232. 3 Because the case is being remanded for other reasons, the ALJ should reconsider 4 the remaining medical source records and opinions. 5 C. Severe Impairments 6 Plaintiff contends the ALJ improperly failed to identify psychosis not 7 otherwise specified (NOS) as a severe impairment at step two. ECF No. 15 at 7. 8 Specifically, Plaintiff asserts the ALJ erred when he accepted Dr. Toews’ 2013 9 diagnosis of history of alcohol-related psychosis, in remission, and rejected Dr. 10 Jennings’ 2007 diagnosis of psychosis NOS. Id. Given this matter is being 11 12 13 (in November 2011 Plaintiff told Ms. Gillihan he continued to have auditory and 14 visual hallucinations, he ignores the voices, he hears them three days a week, and 15 currently they were not as bad as they had been before Plaintiff began medication); 16 Tr. 340, 347, 317, 319 (in February and March 2012, Plaintiff told Mr. Copeland 17 he was experiencing psychotic symptoms; however, urinalysis revealed no 18 substance abuse); Tr. 801(in July 2013 Plaintiff told Mr. Copeland the voices came 19 back “a little for a day or two” after his medication was stolen). The ALJ should 20 also consider this evidence on remand. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 29 1 remanded for other reasons, including to assess the medical evidence, the ALJ 2 should conduct a new step two analysis. 3 D. Remedy 4 In the event of reversible error, the parties disagree as to the appropriate 5 remedy. Plaintiff asks this Court to reverse for an immediate award of benefits. 6 ECF No. 15 at 19-20. The Commissioner, on the other hand, asserts that the 7 proper remedy should be to remand for further proceedings. ECF No. 17 at 9 n.1. 8 Remand is appropriate when, as in this case, there are outstanding issues that 9 must be resolved before a determination can be made, and it is not clear from the 10 record that the ALJ would be required to find a claimant disabled if all the 11 evidence were properly evaluated. Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th 12 Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). On remand, 13 the ALJ should reconsider the credibility analysis. Moreover, the ALJ must 14 reconsider the medical opinion evidence, and provide legally sufficient reasons for 15 evaluating these opinions, supported by substantial evidence. The ALJ may further 16 develop the record by ordering additional consultative examinations and/or taking 17 additional testimony from psychological experts. Finally, the ALJ should 18 reconsider Plaintiff’s RFC and, if necessary, take additional testimony from a 19 vocational expert which includes all of the limitations credited by the ALJ. 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 30 1 2 CONCLUSION The ALJ’s decision is not supported by substantial evidence or free of 3 harmful legal error. 4 IT IS ORDERED: 5 1. Plaintiff’s motion for summary judgment (ECF No. 15) is GRANTED. 6 2. Defendant’s motion for summary judgment (ECF No. 17) is DENIED. 7 3. Pursuant to sentence four of 42 U.S.C. § 405(g), this action is 8 REVERSED and REMANDED to the Commissioner for further proceedings 9 consistent with this Order. 10 4. The District Court Executive is directed to file this Order, enter 11 JUDGMENT FOR PLAINTIFF, provide copies to counsel, and CLOSE the file. 12 DATED this August 1, 2017. 13 14 S/ Mary K. Dimke MARY K. DIMKE U.S. MAGISTRATE JUDGE 15 16 17 18 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 31

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