Janet Miriam Bridges v. Nancy A. Berryhill, No. 2:2019cv02685 - Document 22 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Janet Miriam Bridges v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JANET M. B., ) ) Plaintiff, ) ) v. ) ) ANDREW SAUL, Commissioner of ) Social Security, ) ) Defendant. ) ___________________________________) NO. CV 19-2685-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 On April 9, 2019, Plaintiff filed a complaint seeking review of 26 the Commissioner’s denial of disability benefits. On May 17, 2019, 27 the parties filed a consent to proceed before a United States 28 Magistrate Judge. On September 27, 2019, Plaintiff filed a motion for Dockets.Justia.com 1 summary judgment. On October 28, 2019, Defendant filed a motion for 2 summary judgment. The Court has taken the motions under submission 3 without oral argument. See L.R. 7-15; “Order,” filed April 12, 2019. 4 5 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 6 7 Plaintiff asserts disability since May 28, 2008, based largely on 8 allegedly extreme sensitivity to synthetic fumes and odors, following 9 workplace exposure to trichloroethylene (“TCE”) (Administrative Record 10 (“A.R.”) 55-70, 334, 1033-57).1 11 remanded this case for further administrative proceedings. 12 first remand order, the Court found material ambiguities and 13 inconsistencies in the Administrative Law Judge’s (“ALJ’s”) first 14 decision. 15 [B.] v. Colvin, CV 13-5618-E); see also A.R. 1138 (Appeals Council’s 16 subsequent remand order).2 17 found that the medical opinions on which the same ALJ purportedly 18 relied in determining Plaintiff’s residual functional capacity were The Court twice previously has In the See A.R. 1124-31 (Memorandum Opinion and Order of Remand in In the second remand order, the Court 19 20 21 22 23 24 25 26 27 28 1 For a detailed summary of the medical opinion evidence, see the Court’s prior remand order at A.R. 1699-1704. 2 The ALJ’s first decision found, inter alia, that Plaintiff: (1) has severe “multiple chemical sensitivity syndrome, asthma extrinsic, and migraine headaches” (A.R. 17); (2) retains the residual functional capacity to perform light work “except she should avoid exposure to fumes, dust, and industrial pollutants . . .” (A.R. 19); and (3) with this capacity, Plaintiff could perform clerical jobs (A.R. 25 (purportedly adopting vocational expert testimony at A.R. 7072)). The ALJ’s hypothetical questioning of the vocational expert prior to the first decision had failed to describe accurately the residual functional capacity the ALJ found to exist. 2 1 inconsistent, and no medical opinion specifically endorsed the 2 particular environmental limitations the ALJ assessed. 3 1708 (Memorandum Opinion and Order of Remand in [B.] v. Colvin, CV 16- 4 1130-E); see also A.R. 1711 (Appeals Council’s order remanding for 5 further proceedings before a new ALJ).3 See A.R. 1694- 6 7 After the most recent remand, a new ALJ held another hearing at 8 which Plaintiff and a vocational expert testified, and the ALJ 9 reviewed additional evidence (i.e., medical records from visits with 10 Dr. Bernhoft postdating the disability period at issue) (A.R. 1543- 11 1634). 12 Plaintiff not disabled based, in part, on the ALJ’s belief that 13 Plaintiff’s alleged multiple chemical sensitivity syndrome is not even 14 a medically determinable impairment (A.R. 1521-32). 15 that Plaintiff: (1) has severe “adjustment disorder, migraines, 16 history of bilateral ganglion cysts, lumbar strain, and asthma” (A.R. 17 1524); (2) retains a residual functional capacity for light work 18 limited to detailed but not complex tasks, and avoiding concentrated 19 exposure to dust, odors, fumes or chemical irritants (A.R. 1525); and 20 (3) with this capacity, Plaintiff could perform work as a marker, 21 routing clerk or ticket seller (A.R. 1531-32 (adopting vocational 22 expert’s testimony at A.R. 1618-22)). In the third administrative decision, the new ALJ found The ALJ found All the testifying vocational 23 3 24 25 26 27 28 The second administrative decision found, inter alia, that Plaintiff: (1) has severe asthma and severe “multiple chemical sensitivities” (A.R. 995); (2) retains the residual functional capacity for light work involving simple repetitive tasks “in an environment relatively free of dust and fumes consistent with an office work environment as opposed to a manufacturing work environment” (A.R. 1001); and (3) with this capacity, Plaintiff could perform clerical jobs (A.R. 1018-19 (adopting vocational expert testimony at A.R. 1068-69)). 3 1 experts have opined that, if a person were precluded from all exposure 2 to fumes, dust, odors, gases, etc., there would be no jobs the person 3 could perform. 4 denied review (A.R. 1512-14). See A.R. 72-73, 1070, 1622. The Appeals Council 5 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. section 405(g), this Court reviews the Administration’s decision to determine if: (1) the Administration’s 10 findings are supported by substantial evidence; and (2) the 11 Administration used correct legal standards. 12 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 13 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 14 682 F.3d 1157, 1161 (9th Cir. 2012). 15 relevant evidence as a reasonable mind might accept as adequate to 16 support a conclusion.” 17 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 18 F.3d 1063, 1067 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 19 20 If the evidence can support either outcome, the court may 21 not substitute its judgment for that of the ALJ. 22 Commissioner’s decision cannot be affirmed simply by 23 isolating a specific quantum of supporting evidence. 24 Rather, a court must consider the record as a whole, 25 weighing both evidence that supports and evidence that 26 detracts from the [administrative] conclusion. 27 /// 28 /// 4 But the 1 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 2 quotations omitted). 3 4 DISCUSSION 5 6 7 For the reasons discussed below, yet another remand is appropriate. 8 9 I. 10 The ALJ Did Not Violate the Law of the Case Doctrine By Revisiting the Prior Step 2 Determinations. 11 12 Although the Court finds remand to be appropriate, the Court 13 rejects Plaintiff’s argument regarding the law of the case doctrine. 14 The law of the case doctrine, which applies in the social security 15 context, sometimes prevents a tribunal from considering an issue that 16 has already been decided by the same tribunal, or by a higher 17 tribunal, in the same case. 18 (9th Cir. 2016) (“Stacy”). See Stacy v. Colvin, 825 F.3d 563, 567 19 20 The legal effect of the doctrine of the law of the case 21 depends upon whether the earlier ruling was made by a trial 22 court [or in the Social Security context, an ALJ] or an 23 appellate court [or in the Social Security context, a 24 district court]. 25 to revision at any time before the entry of judgment. 26 trial court may not, however, reconsider a question decided 27 by an appellate court. 28 All rulings of a trial court are subject /// 5 A 1 United States v. Houser, 804 F.2d 565, 567 (9th Cir. 1986) (emphasis 2 original; citation and internal quotation marks omitted). 3 4 Application of the law of the case doctrine is discretionary. 5 See United States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 6 2000). 7 “should not be applied when the evidence on remand is substantially 8 different, when the controlling law has changed, or when applying the 9 doctrine would be unjust.” The doctrine, which “is concerned primarily with efficiency,” Stacy, 825 F.3d at 567 (citation omitted). 10 Here, Defendant does not argue that the evidence on remand was 11 substantially different, the controlling law has changed, or that 12 applying law of the case would be unjust. 13 that this Court’s previous remand orders did not make affirmative 14 findings regarding the prior ALJ’s Step 2 determinations or otherwise 15 preclude the new ALJ from reconsidering the prior ALJ’s Step 2 16 determinations. Rather, Defendant argues 17 18 The law of the case doctrine applies to issues decided explicitly 19 and also applies to issues decided “by necessary implication.” 20 v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). 21 Stacy, the Ninth Circuit observed that there had been two prior Step 4 22 findings by ALJs that the claimant could not perform his past relevant 23 work and also observed that the district court had not explicitly 24 ruled as to these prior findings. 25 the Stacy Court stated, “this is typically the type of determination 26 that should not be reconsidered under the law of the case doctrine.” 27 Id. 28 had not abused its discretion in declining to apply the law of the Stacy, 825 F.3d at 567. Hall In In dicta, The Stacy Court’s holding, however, was that the district court 6 1 case doctrine because new material evidence had been considered on 2 remand. Id. 3 4 In the present case, although there was some new evidence 5 considered on remand (A.R. 1546-1634), the new evidence did not render 6 the record substantially different from the record that existed before 7 the remand. 8 challenged the prior ALJ’s consideration of the evidence in reaching 9 decisions at Steps 3 and 5 of the sequential evaluation process. In the two prior actions in this Court, Plaintiff In 10 the prior two actions, Plaintiff did not raise any issue concerning 11 the ALJ’s determinations at Step 2 that Plaintiff suffered from severe 12 multiple chemical sensitivity. 13 C.D. Cal. Case No. 16-1130-E, and Docket No. 14 in [B.] v. Colvin, 14 C.D. Cal. Case No. 13-5618-E (Plaintiff’s motions for summary judgment 15 filed in those actions). 16 expressly limit the scope of remand or impliedly resolve any issues 17 concerning the prior ALJ’s Step 2 determinations. 18 1704-08; see also A.R. 1711 (Appeals Council’s remand order 19 authorizing a new ALJ to take any further action needed to complete 20 the administrative record and issue a new decision). See Docket No. 16 in [B.] v. Colvin, The Court’s prior remand orders did not See A.R. 1126-31, 21 22 For these reasons, the Court declines to hold that the new ALJ 23 was precluded from revisiting the prior Step 2 determinations. 24 Whaley v. Colvin, 2013 WL 1855840, at *14 (C.D. Cal. Apr. 30, 2013) 25 (finding the law of the case doctrine would not prohibit an ALJ from 26 reconsidering claimant’s residual functional capacity on remand, where 27 court remanded on Step 5 issue and did not specifically preclude the 28 ALJ from reconsidering claimant’s residual functional capacity but 7 See 1 rather allowed the ALJ “otherwise [to] re-evaluate his decision”); 2 compare Ischay v. Barnhart, 383 F. Supp. 2d 1199, 1217-19 (C.D. Cal. 3 2005) (finding law of the case precluded ALJ from revisiting any other 4 issues where court’s remand only authorized ALJ to take additional 5 evidence to determine Step 5 issue and impliedly affirmed ALJ’s 6 findings at earlier steps). 7 8 9 10 II. The ALJ Materially Erred in Making a Medically Unsupported Finding that Plaintiff’s Multiple Chemical Sensitivity Syndrome is Not a Medically Determinable Impairment. 11 12 The ALJ found that Plaintiff’s multiple chemical sensitivity 13 syndrome is not even a medically determinable impairment (A.R. 1524). 14 The ALJ cited records from Plaintiff’s early treatment suggesting that 15 Plaintiff then had normal pulmonary functions and “no symptoms 16 consistent with TCE” exposure (A.R. 1524). 17 testing showing abnormalities as being (in the ALJ’s lay opinion) 18 linked to asthma or episodic migraines rather than to multiple 19 chemical sensitivity syndrome (A.R. 1524). 20 “[t]he weight of the evidence does not establish a physically based 21 chemical sensitivity due to exposure” (A.R. 1524). 22 necessary medical expertise so to interpret the medical records. The ALJ dismissed later The ALJ then declared that The ALJ lacks the 23 24 As this Court observed in a previous remand order: (1) the prior 25 ALJ did not adequately consider the numerous conflicting medical 26 opinions; (2) the Administration could benefit from obtaining 27 potentially synthesizing testimony from a medical expert; and (3) it 28 appeared that Plaintiff’s condition may have been worsening over time 8 1 (A.R. 1705-07). On remand, the new ALJ did not obtain any medical 2 expert testimony to interpret the conflicting medical opinions. 3 consultative examiners (Drs. Levine, Soffer and El-Sokkary) and the 4 state agency physicians (Drs. DeSouza and Morgan) could not fill this 5 gap in medical proof. 6 opined regarding Plaintiff’s condition in 2010 and 2011, which was 7 before testing and treatment by Drs. Silver and Bernhart for reported 8 neurological injuries from Plaintiff’s TCE exposure (detailed below), 9 and before Dr. Dahlgren’s opinion that Plaintiff is totally disabled The These physicians reviewed early records and 10 and totally restricted from exposure to “fumes, odors, dusts, gases 11 [and] poor ventilation” (A.R. 867-68). 12 13 A. Summary of the Relevant Medical Records 14 15 Plaintiff was exposed to TCE in May of 2008 (A.R. 383). 16 Treatment records reflect suspicion by several doctors that Plaintiff 17 has experienced neurological symptoms from this exposure. 18 July of 2008, neurologist Dr. Jonathon Rutchik ordered testing and 19 stated, “It remains to be seen whether the exposure dose and duration 20 is responsible for the present symptoms to a direct effect. 21 that the symptoms are the result of posttraumatic sequellael” (A.R. 22 379-80, 387). In June and It may be 23 24 Occupational and environmental medicine doctors Erika Schwilk and 25 Gina Solomon evaluated Plaintiff on July 31, 2008, and noted findings 26 consistent with toxic TCE exposure (i.e., trigeminal area numbness, 27 decreased left side corneal reflex, and mild difficulty with memory 28 and concentration) (A.R. 430, 462-70). 9 The doctors reportedly 1 expected that Plaintiff’s symptoms would improve, but recommended 2 additional testing (A.R. 430, 468-69). 3 4 On November 8, 2008, Plaintiff underwent a comprehensive 5 neuropsychological evaluation with Dr. Claude Munday (A.R. 495-508). 6 Dr. Munday acknowledged an acute event (TCE exposure) which led to 7 some mental status changes and “some legitimate organic deficiency [] 8 at the very high end of the cognitive spectrum,” but also opined that 9 worry was a “big producer” of Plaintiff’s difficulties (A.R. 506-07). 10 11 Occupational and environmental medicine doctor James Dahlgren 12 authored a letter dated March 24, 2010 (A.R. 721-22). This letter 13 states that Plaintiff experiences multiple chemical sensitivity, 14 “whereby brief exposures to various chemicals at low doses result in 15 central nervous system dysfunction manifested by severe headache and 16 nausea,” which require rest for hours or days to recover (A.R. 721- 17 22). 18 result of her TCE exposure (A.R. 722). Dr. Dahlgren opined that Plaintiff was totally disabled as a 19 20 Subsequent to Plaintiff’s consultative examinations and the state 21 agency physicians’ review, internist rheumatologist Dr. David Silver 22 examined Plaintiff on July 7, 2011, and prepared a “Disability Medical 23 Examination in Rheumatology” report (A.R. 174-75, 182-83; see also 24 A.R. 933-42). 25 Plaintiff is exposed to different substances, she experiences 26 dizziness, fatigue, cognitive impairment, twitches and stuttering 27 (A.R. 245; see also A.R. 334 (Plaintiff reporting that when she comes 28 in contact with odors, fumes, scents, or smoke, her jaw paralyzes, she Plaintiff had reported to Dr. Silver that, when 10 1 begins to stutter, becomes disoriented, blanks out, and can remain in 2 that state for minutes to days depending on the type and length of her 3 exposure); A.R. 366-67 (declaration of Plaintiff’s civil attorney 4 reporting having witnessed “episodes” lasting 20 to 30 minutes where 5 Plaintiff’s eyes roll back in her head, her jaw locks, she stutters 6 and cannot speak)). 7 8 9 On examination, Plaintiff reportedly had a facial tremor (right greater than left) possibly due to trigeminal nerve injury, arresting 10 tremor with cogwheeling rigidity, and decreased light touch in the 11 feet (A.R. 183-86, 189, 191-93, 936). 12 monitor on Plaintiff to record her ECG activity for 24 hours and, upon 13 examining the test results (contained in a “Heart Rate Variability 14 Report - Summary”), agreed to serve as an expert in her civil case 15 (A.R. 199-200; see also A.R. 950-71). 16 autonomic nervous system functioning, and according to Dr. Silver, 17 provides a window “into what is going on in the central nervous 18 system” (A.R. 201-02). 19 rhythm was abnormal (i.e., when she slept, her parasympathetic nervous 20 system did not slow down her heart rate or breathing, and her blood 21 pressure did not drop) (A.R. 205-06, 953). 22 Silver opined “to a reasonable medical probability” that Plaintiff 23 incurred neurological injury as a result of her TCE exposure 24 manifested by hypersensitivity to chemicals (A.R. 975). Dr. Silver placed a halter The halter monitor examines The test showed that Plaintiff’s circadian Based on this testing, Dr. 25 26 Dr. Silver saw Plaintiff again on November 16, 2011 (A.R. 227, 27 943). Plaintiff then reported worsening facial twitching, dizziness 28 when “shifting her face,” and cognitive impairment (A.R. 228). 11 On 1 examination, Dr. Silver observed that Plaintiff had facial twitching 2 and tremor, stuttering and difficulty getting off the exam table (A.R. 3 228-29, 943). 4 5 Dr. Silver opined that Plaintiff had suffered a “significant 6 neurologic injury” from her TCE exposure, resulting in chemical 7 sensitivity and other neurologic symptoms (A.R. 234-35; see also A.R. 8 973-76). 9 to the open labor market” because Plaintiff would have “frequent Dr. Silver opined that Plaintiff was “incapable of returning 10 episodes, whether it [sic] be related to a chemical that she is 11 exposed to or some stimulus, be it her memory, et cetera, that she 12 would not be considered a reliable employee” (A.R. 235, 240-41). 13 Silver opined that Plaintiff should not get into an enclosed place, 14 such as an airplane, in which chemical smells (fuel, perfume, cologne, 15 etc.) could be smelled because she could have a significant reaction 16 to those smells detrimental to her health (A.R. 975-76). 17 also opined that Plaintiff should avoid driving trips of more than two 18 hours because of heightened potential of fatigue and smelling 19 chemicals (A.R. 976).4 Dr. Dr. Silver 20 21 22 23 24 25 26 27 28 4 Following Dr. Silver’s testing, Dr. Dahlgren completed a “Physical Capacities Evaluation” dated December 6, 2011 (A.R. 867-68). Dr. Dahlgren indicated that Plaintiff has, inter alia, total restriction from extreme cold/heat, wetness, noise, vibration, fume, odors, dust, gases, poor ventilation, and hazards (A.R. 867-68). Dr. Dahlgren stated, “This patient is disabled by the mental impairment. She has toxic encephalopathy due to brain damage from exposure to [TCE]” (A.R. 868). In a letter dated December 8, 2011, Dr. Dahlgren explained that on examination Plaintiff is unable to concentrate and answer questions easily, and a “holter electrocardiogram” test showed suppressed parasympathetic function indicative of severe autonomic neuropathy (A.R. 870). Dr. Dahlgren opined that (continued...) 12 1 Dr. Robin Bernhoft prepared a “Physical Medical Source Statement” 2 dated January 9, 2015 (A.R. 1509-11). Dr. Bernhoft had seen Plaintiff 3 four times between June 27, 2013 and February 13, 2014 (A.R. 1509). 4 At Plaintiff’s initial consultation with Dr. Bernhoft on June 27, 5 2013, Plaintiff had complained of “very severe” cognitive problems, 6 nausea, diarrhea, vomiting, stuttering, facial numbness/twitching, 7 disorientation, and memory loss brought on by exposure to carpet, 8 colognes, copy machines, seasonal pollens, chlorine, exhaust, pumping 9 gas, perfumes, cigarettes, and crops being sprayed (A.R. 1331). Based 10 on Plaintiff’s reports “well documented on neuropsych testing,” Dr. 11 Bernhoft diagnosed, inter alia, toxic encephalopathy following 12 prolonged exposure to airplane exhaust and acute TCE exposure, 13 dysautonomia, allergies, a history of asthma, heart palpitations, and 14 chronic fatigue (A.R. 1332-33). 15 16 Dr. Bernhoft opined, inter alia, that Plaintiff would be off task 17 for 25 percent or more of a workday and incapable of “low stress” work 18 due to her toxic encephalopathy (A.R. 1510-11). 19 opined Plaintiff would be absent from work “20+ days per month” (id.). 20 When asked how often Plaintiff would need to take unscheduled breaks 21 during a workday, Dr. Bernhoft wrote “unemployable” (A.R. 1511). 22 /// 23 /// 24 /// Dr. Bernhoft also 25 26 27 28 4 (...continued) Plaintiff would not improve and that her lung function and reduced mental function will only worsen with time (A.R. 871). Dr. Dahlgren opined that Plaintiff is “unable to function at any level at all” for work (A.R. 871). 13 1 B. Analysis 2 3 Given the nature of these medical records, the ALJ erred in 4 determining on his own that Plaintiff’s multiple chemical sensitivity 5 syndrome is not a medically determinable impairment. 6 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ who is not 7 qualified as a medical expert cannot make “his [or her] own 8 exploration and assessment as to [the] claimant’s physical 9 condition”); see also Rohan v. Chater, 98 F.3d 966, 970–71 (7th Cir. See Day v. 10 1996) (ALJ may not rely on his or her own lay opinion regarding 11 medical matters); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 12 1995) (same). 13 expert. 14 Cir. 1983) (“[T]he ALJ has a special duty to fully and fairly develop 15 the record to assure the claimant’s interests are considered. 16 duty exists even when the claimant is represented by counsel.”); Silva 17 v. Barnhart, 2003 WL 22425010, at *10 (N.D. Ill. Oct. 23, 2003) 18 (remanding where ALJ assessed the claimant’s tolerance for pulmonary 19 irritants based on the ALJ’s interpretation of medical records instead 20 of consulting a medical expert). At a minimum, the ALJ should have consulted a medical See id.; see also Brown v. Heckler, 713 F.2d 441, 443 (9th This 21 22 An error “is harmless where it is inconsequential to the ultimate 23 nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 24 (9th Cir. 2012) (citations and quotations omitted). 25 deem the ALJ’s lay interpretation of medical matters, or the ALJ’s 26 failure to consult a medical expert, to have been harmless in light of 27 the medical opinions suggesting that Plaintiff would be disabled by 28 her impairments. The Court cannot Contrary to Defendant’s apparent argument, an ALJ’s 14 1 finding of some severe impairments does not necessarily render 2 harmless the ALJ’s erroneous failure to find another alleged 3 impairment to be a medically determinable impairment. 4 residual functional capacity, the ALJ considers only impairments found 5 medically determinable. 6 Colvin, 2016 WL 8232243, at *4-5 (E.D. Wash. Aug. 23, 2016). 7 Accordingly, in the most recent administrative decision, the ALJ did 8 not consider the effects of Plaintiff’s multiple chemical sensitivity 9 syndrome in assessing Plaintiff’s residual functional capacity. 10 In assessing 20 C.F.R. § 404.1545(a)(2); see Butler v. Such lack of consideration was potentially prejudicial. 11 12 C. Remand is Appropriate. 13 14 Although the administrative proceedings already have been 15 protracted, another remand is appropriate because further 16 administrative review could remedy the most recent administrative 17 errors. 18 INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an 19 administrative determination, the proper course is remand for 20 additional agency investigation or explanation, except in rare 21 circumstances); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) 22 (“Unless the district court concludes that further administrative 23 proceedings would serve no useful purpose, it may not remand with a 24 direction to provide benefits”); Treichler v. Commissioner, 775 F.3d 25 1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative 26 proceedings is the proper remedy “in all but the rarest cases”); 27 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (court will 28 credit-as-true medical opinion evidence only where, inter alia, “the McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2010); see also 15 1 record has been fully developed and further administrative proceedings 2 would serve no useful purpose”); Harman v. Apfel, 211 F.3d 1172, 1180- 3 81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (remand for further 4 proceedings rather than for the immediate payment of benefits is 5 appropriate where there are “sufficient unanswered questions in the 6 record”). 7 8 9 There remain significant unanswered questions in the present record. Cf. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) 10 (remanding for further proceedings to allow the ALJ to “comment on” 11 the treating physician’s opinion). 12 medical evidence that Plaintiff’s condition may have been worsening 13 over time, it is not clear on the present record whether the ALJ would 14 be required to find Plaintiff disabled for the entire claimed period 15 of disability even if the more restrictive medical opinions were fully 16 credited. 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Again, since it appears from the See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). 16 1 CONCLUSION 2 3 For all of the foregoing reasons,5 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: November 20, 2019. 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled.” Garrison v. Colvin, 759 F.3d at 1021. 17
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