Brant Eugene Kinnsch v. Carolyn W. Colvin, No. 2:2016cv07092 - Document 24 (C.D. Cal. 2017)

Court Description: DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered REVERSING the Commissioner's decision and REMANDING this case for further proceedings consistent with this Decision and Order; and The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case, without prejudice to a timely application for attorneys' fees and costs. (wr)

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Brant Eugene Kinnsch v. Carolyn W. Colvin Doc. 24 O 1 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 7 8 9 10 11 12 13 14 15 16 17 18 Case No. 2:16-CV-07092 (VEB) BRANT EUGENE KINNSCH, DECISION AND ORDER Plaintiff, vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. I. INTRODUCTION In December of 2012, Plaintiff Brant Eugene Kinnsch applied for Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the application.1 Plaintiff, represented by Stuart T. Barasch, Esq., On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The 19 Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure. 20 1 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB Dockets.Justia.com 1 commenced this action seeking judicial review of the Commissioner’s denial of 2 benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 3 The parties consented to the jurisdiction of a United States Magistrate Judge. 4 (Docket No. 14, 16). On June 6, 2017, this case was referred to the undersigned 5 pursuant to General Order 05-07. (Docket No. 23). 6 7 II. BACKGROUND 8 Plaintiff applied for benefits on December 20, 2012, alleging disability 9 beginning June 23, 2011, due to back pain, leg/ankle pain, arthritis, blood clots, hand 10 pain, and depression. (T at 164-65).2 The application was denied initially and on 11 reconsideration. Plaintiff requested a hearing before an Administrative Law Judge 12 (“ALJ”). On February 12, 2015, a hearing was held before ALJ Roger Winkelman. 13 (T at 49). Plaintiff appeared with his attorney and testified. (T at 52-78). The ALJ 14 also received testimony from Jeff Clark, a vocational expert (T at 78-83). At the 15 hearing, Plaintiff acknowledged that he had engaged in substantial gainful activity in 16 17 18 19 20 Citations to (“T”) refer to the administrative record at Docket No. 19. 2 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 2013 and 2014 and thus amended his claim to seek benefits for a “closed period”3 of 2 disability from June 23, 2011, through July 15, 2013 (the “closed period”). (T at 26). 3 On February 25, 2015, the ALJ issued a written decision denying the 4 application for benefits. (T at 23-37). The ALJ’s decision became the 5 Commissioner’s final decision on July 22, 2016, when the Appeals Council denied 6 Plaintiff’s request for review. (T at 1-6). 7 On September 21, 2016, Plaintiff, acting by and through his counsel, filed this 8 action seeking judicial review of the Commissioner’s decision. (Docket No. 1). The 9 Commissioner interposed an Answer on February 13, 2017. (Docket No. 18). 10 Plaintiff filed a supporting memorandum of law on March 15, 2017. (Docket No. 11 20). The Commissioner filed an opposing memorandum of law on April 17, 2017. 12 (Docket No. 21). Plaintiff filed a reply on May 1, 2017. (Docket No. 22). 13 After reviewing the pleadings, memoranda of law, and administrative record, 14 this Court finds that the Commissioner’s decision must be reversed and this case 15 remanded for further proceedings. 16 17 18 19 “In a ‘closed period’ case, the decision maker determines [whether] a new applicant for disability benefits was disabled for a finite period of time which started and stopped prior to the date of his decision.” Mendoza v. Apfel, 88 F. Supp. 2d 1108, 1112 (C.D. Cal. 2000)(quoting Pickett v. Bowen, 833 F.2d 289 n.1 (11th Cir. 1987)). 20 3 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB III. DISCUSSION 1 2 A. Sequential Evaluation Process 3 The Social Security Act (“the Act”) defines disability as the “inability to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which has 6 lasted or can be expected to last for a continuous period of not less than twelve 7 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 8 claimant shall be determined to be under a disability only if any impairments are of 9 such severity that he or she is not only unable to do previous work but cannot, 10 considering his or her age, education and work experiences, engage in any other 11 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 12 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 13 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 16 one determines if the person is engaged in substantial gainful activities. If so, 17 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 18 decision maker proceeds to step two, which determines whether the claimant has a 19 medically severe impairment or combination of impairments. 20 C.F.R. §§ 20 4 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 2 If the claimant does not have a severe impairment or combination of 3 impairments, the disability claim is denied. If the impairment is severe, the 4 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 5 with a number of listed impairments acknowledged by the Commissioner to be so 6 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 7 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 8 equals one of the listed impairments, the claimant is conclusively presumed to be 9 disabled. If the impairment is not one conclusively presumed to be disabling, the 10 evaluation proceeds to the fourth step, which determines whether the impairment 11 prevents the claimant from performing work which was performed in the past. If the 12 claimant is able to perform previous work, he or she is deemed not disabled. 20 13 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 14 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 15 work, the fifth and final step in the process determines whether he or she is able to 16 perform other work in the national economy in view of his or her residual functional 17 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 18 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 19 20 The initial burden of proof rests upon the claimant to establish a prima facie 5 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 2 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 3 is met once the claimant establishes that a mental or physical impairment prevents 4 the performance of previous work. The burden then shifts, at step five, to the 5 Commissioner to show that (1) plaintiff can perform other substantial gainful 6 activity and (2) a “significant number of jobs exist in the national economy” that the 7 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 8 B. Standard of Review 9 Congress has provided a limited scope of judicial review of a Commissioner’s 10 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 11 made through an ALJ, when the determination is not based on legal error and is 12 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 13 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 14 “The [Commissioner’s] determination that a plaintiff is not disabled will be 15 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 16 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 17 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 18 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 19 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 20 6 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 2 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 3 conclusions as the [Commissioner] may reasonably draw from the evidence” will 4 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 5 the Court considers the record as a whole, not just the evidence supporting the 6 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 7 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 8 It is the role of the Commissioner, not this Court, to resolve conflicts in 9 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 10 interpretation, the Court may not substitute its judgment for that of the 11 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 12 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 13 set aside if the proper legal standards were not applied in weighing the evidence and 14 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 15 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 16 administrative findings, or if there is conflicting evidence that will support a finding 17 of either disability or non-disability, the finding of the Commissioner is conclusive. 18 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 19 20 7 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 C. Commissioner’s Decision 2 As noted above, during the administrative hearing, Plaintiff amended his 3 application for benefits to allege disability only between June 23, 2011 and July 15, 4 2013 (the “closed period”). (T at 26). As such, the question for the ALJ was 5 whether Plaintiff was disabled, under the Social Security Act, during that closed 6 period. 7 The ALJ determined that Plaintiff did not engage in substantial gainful 8 activity during the closed period and met the insured status requirements of the ty 9 Act through December 31, 2016. (T at 28). The ALJ found that Plaintiff’s blood 10 clots in his legs and back pain were “severe” impairments under the Act. (Tr. 28). 11 However, the ALJ concluded that Plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled one of the impairments 13 set forth in the Listings. (T at 31). 14 The ALJ determined that Plaintiff retained the residual functional capacity 15 (“RFC”) to perform a range of light work as defined in 20 CFR § 416.967 (b), with 16 the following limitations: sit/stand/walk for 6 hours in an 8-hour workday; frequent 17 balancing; occasional stooping, kneeling, crouching, and crawling; occasional 18 pushing and pulling and operation of foot controls with bilateral lower extremities; 19 20 8 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 avoid concentrated exposure to extreme temperatures and vibration; avoid even 2 moderate exposure to hazards; and no work on uneven ground. (T at 31). 3 The ALJ found that Plaintiff could perform his past relevant work in 4 equipment sales. (T at 33). As such, the ALJ found that Plaintiff was not entitled to 5 benefits under the Social Security Act during the closed period. (T at 33). As noted 6 above, the ALJ’s decision became the Commissioner’s final decision when the 7 Appeals Council denied Plaintiff’s request for review. (T at 1-6). 8 D. Disputed Issues 9 Plaintiff offers three (3) main arguments in support of his claim that the 10 Commissioner’s decision should be reversed. First, he contends that the ALJ did not 11 properly weigh the medical opinion evidence. 12 ALJ’s credibility determination. Third, Plaintiff argues that the ALJ’s past relevant 13 work analysis was flawed. This Court will address each argument in turn. Second, Plaintiff challenges the 14 IV. ANALYSIS 15 16 A. Medical Opinion Evidence 17 In disability proceedings, a treating physician’s opinion carries more weight 18 than an examining physician’s opinion, and an examining physician’s opinion is 19 given more weight than that of a non-examining physician. Benecke v. Barnhart, 20 9 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 2 1995). If the treating or examining physician’s opinions are not contradicted, they 3 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 4 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 5 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 6 1035, 1043 (9th Cir. 1995). 7 Historically, the courts have recognized conflicting medical evidence, and/or 8 the absence of regular medical treatment during the alleged period of disability, 9 and/or the lack of medical support for doctors’ reports based substantially on a 10 claimant’s subjective complaints of pain, as specific, legitimate reasons for 11 disregarding a treating or examining physician’s opinion. Flaten v. Secretary of 12 Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 13 An ALJ satisfies the “substantial evidence” requirement by “setting out a 14 detailed and thorough summary of the facts and conflicting clinical evidence, stating 15 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 16 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 17 “The ALJ must do more than state conclusions. He must set forth his own 18 interpretations and explain why they, rather than the doctors,’ are correct.” Id. 19 20 10 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 In the present case, Dr. Sohail Afra performed a consultative examination in 2 May of 2013. Dr. Afra assessed the following limitations: pushing/pulling/lifting 3 carrying limited to 20 pounds occasionally and 10 pounds frequently; 4 walking/standing limited to 4 hours in an 8-hour workday; sitting limited to 6 hours 5 in an 8-hour workday; occasional bending/kneeling/stooping/crawling/crouching; no 6 fine or gross motor limitations on the right side, but gross movements limited to 7 frequent on the left side. (T at 334). The ALJ gave “significant weight” to Dr. 8 Afra’s opinion when determining Plaintiff’s RFC. (T at 32). 9 Plaintiff argues that the ALJ failed to reconcile the decision to give significant 10 weight to Dr. Afra’s opinion, while also finding Plaintiff capable of 11 walking/standing for 6 hours in an 8-hour workday, which is greater than the 12 limitation assessed by Dr. Afra. 13 The Commissioner responds by noting that Dr. Pan and Dr. Kalmar, non- 14 examining State Agency review consultants, opined that Plaintiff could walk/stand 15 for 6 hours in an 8-hour workday, which is consistent with the ALJ’s determination. 16 (T at 94, 109). 17 This Court finds a remand is required. First, the opinion of a non-examining, 18 State Agency physician does not, without more, justify the rejection of an examining 19 physician’s opinion. Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995)(citing Pitzer 20 11 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)). The rejection of an examining 2 physician opinion based on the testimony of a non-examining medical consultant 3 may be proper, but only where there are sufficient reasons to reject the examining 4 physician opinion independent of the non-examining physician's opinion. See e.g., 5 Lester, 81 F.3d at 831; Roberts v. Shalala, 66 F.3d 179 (9th Cir. 1995). As such, the 6 fact that the State Agency review consultants assessed lesser limitation with regard 7 than standing/walking than Dr. Afra does not, without more, justify a decision to 8 adopt the former assessment (which was based solely on record review), as opposed 9 to the latter (which was based on personal examination). 10 Second, the ALJ did not actually resolve the conflict in the manner proposed 11 by the Commissioner. Rather, the ALJ did not appear to recognize the conflict at all. 12 Indeed, the ALJ was quite clear about the fact that he was giving greatest weight to 13 Dr. Afra’s assessment, without apparently recognizing the need to reconcile the RFC 14 determination regarding standing/walking with Dr. Afra’s more significant 15 restriction in that regard. “Long-standing principles of administrative law require us 16 to review the ALJ's decision based on the reasoning and factual findings offered by 17 the ALJ — not post hoc rationalizations that attempt to intuit what the adjudicator 18 may have been thinking.” Bray v. Comm'r, 554 F.3d 1219, 1226 (9th Cir. 2009). 19 20 12 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 A remand is required to revisit the assessment of Plaintiff’s ability to 2 stand/walk during the closed period in light of the evidence of record, including the 3 opinion of the consultative examiner. 4 B. Credibility 5 A claimant’s subjective complaints concerning his or her limitations are an 6 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 7 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 8 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 9 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 10 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 11 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 12 findings are insufficient: rather the ALJ must identify what testimony is not credible 13 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 14 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 15 However, subjective symptomatology by itself cannot be the basis for a 16 finding of disability. A claimant must present medical evidence or findings that the 17 existence of an underlying condition could reasonably be expected to produce the 18 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 19 § 404.1529(b), 416.929; SSR 96-7p. 20 13 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 In this case, Plaintiff testified with respect to the closed period of alleged 2 disability as follows: He was 47 years old on the alleged onset date, having 3 completed high school, along with some college and vocational courses. (T at 53- 4 54). 5 pulsating in both legs. (T at 60). Back pain interfered with daily activities two to 6 three days per week. (T at 61). Foot pain was also an issue. (T at 77). Pain 7 medication caused difficulties with concentration. (T at 63-64). He had good days 8 and bad days; most of the time he was not able to perform any activities due to pain. 9 (T at 63-64). Pain made it very difficult to concentrate. (T at 64). He could walk 10 about 500 feet before needing to stop, could stand for 15 minutes at a time, and 11 could sit for about 4 hours. (T at 65). The most he could lift/carry was 20 pounds 12 and he was unable to push or pull with his legs. (T at 66). His physician told him 13 not to stand or walk for extended periods. (T at 67). He napped throughout the day, 14 watched some television, and attended to basic self-care tasks and simple household 15 chores. (T at 68, 70, 72, 73, 77). He suffered from deep vein thrombosis, which caused constant pain and 16 The ALJ concluded that Plaintiff’s medically determinable impairments could 17 reasonably be expected to cause the alleged symptoms, but that his statements 18 concerning the intensity, persistence, and limiting effects of the symptoms were not 19 fully credible. (T at 32-33). 20 14 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 This Court finds that the ALJ’s credibility determination needs to be revisited 2 on remand. In particular, Plaintiff testified that his pain was so severe at times that it 3 interfered with his concentration. (T at 64). 4 testimony regarding pain-induced concentration difficulties without an adequate 5 analysis. 6 sufficiently to perform activities of daily living, such as watching television, 7 listening to music, and visiting with friends. (T at 33). However, while Plaintiff 8 testified that he had some ability to perform these activities with limitation on 9 “good” days, he also stated that for about twenty-two (22) days of each month, the 10 pain was so severe that he “literally couldn’t do anything.” (T at 64-65). The ALJ 11 simply found an inconsistency between Plaintiff’s reported activities and claimed 12 limitations, without discussing the important clarification that Plaintiff testified that 13 the reported activities were not sustained on a majority of days in a given month 14 during the closed period of alleged disability. The ALJ discounted Plaintiff’s For example, the ALJ noted that Plaintiff was able to concentrate 15 Moreover, Dr. Isadore Wendel, a clinical psychologist, performed a 16 consultative examination in May of 2013. Dr. Wendel opined that Plaintiff’s self- 17 reported restrictions in activities of daily living due to pain appeared to be “credible” 18 and she assessed a “moderate-to-marked” limitation as to activities of daily living. 19 (T at 339). Dr. Wendel assessed a moderate impairment with regard to Plaintiff’s 20 15 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 concentration, persistence, and pace. (T at 339). While the ALJ discussed Dr. 2 Wendel’s opinion in the context of considering whether Plaintiff had a severe mental 3 impairment (T at 29-30), the ALJ did not address the extent to which Dr. Wendel’s 4 assessment lends support to Plaintiff’s subjective claim of pain-induced 5 concentration problems. This is a material omission and the credibility assessment 6 must be revisited on remand. 7 C. Past Relevant Work 8 “Past relevant work” is work that was “done within the last 15 years, lasted 9 long enough for [the claimant] to learn to do it, and was substantial gainful activity.” 10 20 C.F.R. §§ 404.1565(a), 416.965(a). At step four of the sequential evaluation, the 11 ALJ makes a determination regarding the claimant’s residual functional capacity and 12 determines whether the claimant can perform his or her past relevant work. 13 Although claimant bears the burden of proof at this stage of the evaluation, the 14 ALJ must make factual findings to support his or her conclusion. See SSR 82-62. In 15 particular, the ALJ must compare the claimant’s RFC with the physical and mental 16 demands of the past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv) and 17 416.920(a)(4)(iv). In sum, the ALJ must determine whether the claimant’s RFC 18 would permit a return to his or her past job or occupation. The ALJ’s findings with 19 20 16 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 respect to RFC and the demands of the past relevant work must be based on 2 evidence in the record. See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). 3 Here, the ALJ concluded that Plaintiff could perform his past relevant work in 4 equipment sales. (T at 33). This finding was based on the testimony of the 5 vocational expert, who opined that a hypothetical claimant with limitations 6 consistent with the RFC could perform the equipment sales job, as it is generally 7 performed in the economy. (T at 33, 82). However, the hypothetical presented to the 8 vocational expert asked him to assume a claimant capable of standing/walking for 6 9 hours in an 8-hour work day. (T at 82). As discussed above, Dr. Afra, the 10 consultative examiner, concluded that Plaintiff was limited to standing/walking for 4 11 hours in an 8-hour work day. (T at 334). The ALJ gave “significant weight” to Dr. 12 Afra’s opinion (T at 32), while also finding that Plaintiff could stand/walk for 6 13 hours in an 8-hour workday. The ALJ offered no explanation as to how he resolved 14 this conflict, which undermines the RFC determination. As the vocational expert’s 15 testimony was based on the RFC determination, and (in turn) the past relevant work 16 finding was based on the vocational expert’s testimony, the past relevant work 17 analysis will need to be revisited on remand. 18 19 20 17 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 D. Remand 2 In a case where the ALJ's determination is not supported by substantial 3 evidence or is tainted by legal error, the court may remand the matter for additional 4 proceedings or an immediate award of benefits. Remand for additional proceedings 5 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 6 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 7 F.3d 587, 593 (9th Cir. 2004). 8 Here, this Court finds that remand for further proceedings is warranted. While 9 the ALJ needs to address Dr. Afra’s standing/walking limitations and the question of 10 pain-induced concentration difficulties more thoroughly, there is some evidence 11 (including the State Agency review consultant opinions) to suggest Plaintiff may not 12 have been as limited during the closed period as alleged. 13 Plaintiff’s ability to stand/walk and/or concentrate during the closed period is 14 assessed to be limited to a greater degree on reconsideration, the overall question of 15 disability would still need to be resolved in light of the revised assessment. As such, 16 this Court finds a remand for further proceedings warranted. See Strauss v. Comm’r 17 of Soc. Sec., 635 F.3d 1135, 1138 (9th Cir. 2011)(“Ultimately, a claimant is not 18 entitled to benefits under the statute unless the claimant is, in fact, disabled, no 19 matter how egregious the ALJ’s errors may be.”). 20 Moreover, even if 18 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB 1 2 V. ORDERS 3 4 IT IS THEREFORE ORDERED that: 5 Judgment be entered REVERSING the Commissioner’s decision and 6 REMANDING this case for further proceedings consistent with this Decision and 7 Order; and 8 The Clerk of the Court shall file this Decision and Order, serve copies upon 9 counsel for the parties, and CLOSE this case, without prejudice to a timely 10 11 12 13 application for attorneys’ fees and costs. DATED this 21st day of December 2017, /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 19 DECISION AND ORDER – KINNSCH v BERRYHILL 2:16-CV-07092-VEB

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