Sandra Ibette Dorado Barrientos v. Kilolo Kijakazi, No. 2:2020cv11359 - Document 23 (C.D. Cal. 2022)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish, IT IS ORDERED that: (1) the Decision of the Commissioner is REVERSED and this matter REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Order; and (2) Judgment be entered in favor of Plaintiff. [See Order for details.] (es)
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Sandra Ibette Dorado Barrientos v. Kilolo Kijakazi Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SANDRA B.,1 11 Case No. 2:20-cv-011359-GJS Plaintiff 12 v. 13 KILOLO KIJAKAJI, Acting Commissioner of Social Security, 14 15 MEMORANDUM OPINION AND ORDER Defendant. 16 17 I. PROCEDURAL HISTORY 18 Plaintiff Sandra B. (“Plaintiff”) filed a complaint seeking review of the 19 decision of the Commissioner of Social Security denying her applications for 20 Supplemental Security Income (“SSI”) and Childhood Disability Income Benefits. 21 The parties filed consents to proceed before the undersigned United States 22 Magistrate Judge (Dkts. 11, 12) and briefs addressing disputed issues in the case 23 [Dkt. 20 (“Pltf.’s Br.”) and Dkt. 21 (“Def.’s Br.”).] The matter is now ready for 24 decision. For the reasons discussed below, the Court finds that this matter should be 25 26 27 28 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party in this case. Dockets.Justia.com 1 remanded. 2 3 II. ADMINISTRATIVE DECISION UNDER REVIEW 4 Plaintiff filed applications for benefits on June 1, 2018, alleging disability 5 beginning on July 19, 2006. [Dkt. 15, Administrative Record (“AR”) 184-186.] 6 Plaintiff’s applications were denied at the initial level of review and on 7 reconsideration. [AR 47-61, 92-103.] A hearing was held before Administrative 8 Law Judge Diana J. Coburn (“the ALJ”) on March 18, 2020. [AR 33-46.] 9 On April 1, 2020, the ALJ issued an unfavorable decision applying the five- 10 step sequential evaluation process for assessing disability. [AR 17-28.] At step one, 11 the ALJ determined that Plaintiff has not engaged in substantial gainful activity 12 since the alleged onset date. [AR 19.] At step two, the ALJ determined that 13 Plaintiff has the following severe impairments: multiple sclerosis, obesity, and 14 depression. [AR 19.] At step three, the ALJ determined that Plaintiff does not have 15 an impairment or combination of impairments that meets or medically equals the 16 severity of one of the impairments listed in Appendix I of the Regulations. [AR 20]; 17 see 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ found that Plaintiff has the 18 residual functional capacity (“RFC”) to perform sedentary work, except: 19 20 21 22 23 24 25 26 27 she must never climb ladders ropes or scaffolds; she can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; she is precluded from exposure to unprotected heights and dangerous moving machinery; she can perform simple and routine tasks; and she can make simple work-related decisions. [AR 22.] At step four, the ALJ determined that Plaintiff, who had not attained the age of 22 years old as of the alleged disability onset date, had no past relevant work. [AR 28.] At step five, the ALJ found that considering Plaintiff’s age, which meets the definition of a younger individual, and her education, work experience, and 28 2 1 RFC, there are jobs that exist in significant number in the national economy that she 2 can perform. [AR 28.] Based on these findings, the ALJ found Plaintiff not 3 disabled through the date of the decision. [AR 28.] 4 Plaintiff sought review of the ALJ’s decision, which the Appeals Council 5 denied, making the ALJ’s decision the Commissioner’s final decision. [AR 1-6.] 6 This action followed. Plaintiff raises the following issues challenging the ALJ’s 7 findings and determination of non-disability: 1. Whether the ALJ properly evaluated the treating opinion of 8 9 physician Margaret Burnett, M.D.; and 2. Whether the ALJ failed to properly evaluate Plaintiff’s testimony. 10 11 Defendant asserts that the ALJ’s decision should be affirmed, or in the 12 alternative, remanded for further development of the record if the Court finds the 13 ALJ erred. 14 15 16 III. GOVERNING STANDARD Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 17 determine if: (1) the Commissioner’s findings are supported by substantial 18 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 19 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 20 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence … is 21 ‘more than a mere scintilla’ … [i]t means – and only means – ‘such relevant 22 evidence as a reasonable mind might accept as adequate to support a conclusion.’” 23 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v. 24 Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal quotation marks 25 and citation omitted). 26 The Court will uphold the Commissioner’s decision when “the evidence is 27 susceptible to more than one rational interpretation.” See Molina v. Astrue, 674 28 F.3d 1104, 1110 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 3 1 404.1502(a). However, the Court may review only the reasons stated by the ALJ in 2 his decision “and may not affirm the ALJ on a ground upon which he did not rely.” 3 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the 4 Commissioner’s decision if it is based on harmless error, which exists if the error is 5 “inconsequential to the ultimate nondisability determination, or if despite the legal 6 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin, 7 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted). 8 9 10 11 IV. A. DISCUSSION The ALJ Improperly Evaluated Dr. Burnett’s Opinion The first issue in dispute is whether the ALJ properly evaluated the medical 12 evidence. Specifically, whether the ALJ provided a sufficient justification, 13 supported by substantial evidence, for finding that the treating neurologist’s opinion 14 was not persuasive. For the reasons discussed below, reversal and remand for 15 further administrative proceedings are warranted on this issue. Having found that 16 remand is warranted, the Court declines to address Plaintiff’s remaining arguments. 17 See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the 18 case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative 19 ground for remand.”); see also Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 20 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other claims 21 plaintiff raises, none of which would provide plaintiff with any further relief than 22 granted, and all of which can be addressed on remand.”). 23 24 1. Relevant Law “The ALJ is responsible for translating and incorporating clinical findings 25 into a succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th 26 Cir. 2015). In doing so, the ALJ must articulate a “substantive basis” for rejecting a 27 medical opinion or crediting one medical opinion over another. Garrison v. Colvin, 28 759 F.3d 995, 1012 (9th Cir. 2014). Under prior Ninth Circuit law, an ALJ must 4 1 provide “clear and convincing reasons” supported by substantial evidence before 2 rejecting a treating or examining physician’s uncontradicted opinion and “specific 3 and legitimate reasons” supported by substantial evidence before rejecting a treating 4 or examining physician’s contradicted opinion. Trevizo v. Berryhill, 871 F.3d 664, 5 675 (9th Cir. 2017); Ghanim v. Colvin, 763 F.3d 1154, 1160-1161 (9th Cir. 2014). 6 An ALJ could meet this burden “by setting out a detailed and thorough summary of 7 the facts and conflicting clinical evidence, stating his interpretation thereof, and 8 making findings.” Trevizo, 871 F.3d at 675 (quoting Magallanes v. Bowen, 881 9 F.2d 747, 751 (9th Cir. 1989)). 10 However, because Plaintiff filed her applications after March 27, 2017, her 11 claim is governed by the SSA revised regulations. See Revisions to Rules 12 Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01 (Jan. 18, 13 2017). The revised regulations provide that the Commissioner “will not defer or 14 give any specific evidentiary weight ... to any medical opinion(s) ... including those 15 from [the claimant’s] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). 16 Under the revised regulations, an ALJ need “not defer or give any specific 17 evidentiary weight, including controlling weight, to any medical opinion(s) or prior 18 administrative finding(s), including those from [a claimant’s] medical sources.” See 19 20 C.F.R. §§ 404.1520c(a), 416.920c(a). An ALJ is to evaluate medical opinions 20 and prior administrative medical findings by evaluating their “persuasiveness.” Id. 21 In determining how “persuasive” a medical source’s opinions are, an ALJ must 22 consider the following factors: supportability, consistency, treatment or examining 23 relationship, specialization, and “other factors.” 20 C.F.R. §§ 404.1520c(c)(1)-(5), 24 416.920c(c)(1)-(5). Supportability and consistency are “the most important factors.” 25 20 C.F.R. §§ 404.1520c(a), 416.920c(a). In Woods v. Kijakazi, 32 F.4th 785 (9th 26 Cir. 2022), the Ninth Circuit concluded that the revised regulations “displaced” prior 27 Ninth Circuit case law establishing a hierarchy of, or deference to, medical opinions. 28 Woods, 32 F.4th at 787, 789-792; see also Jeanett M. v. Kijakazi, 2022 U.S. Dist. 5 1 LEXIS 76683, 2022 WL 1239344, at *3 (N.D. Cal. Apr. 27, 2022). 2 While the ALJ must articulate how he or she considered supportability and 3 consistency, an explanation for the remaining factors is not required except when 4 deciding among differing yet equally persuasive opinions or findings on the same 5 issue. See 20 C.F.R. §§ 404.1520c(b), 416.920c(b); Woods, 32 F.4th at 792. Under 6 the new regulations, “an ALJ’s decision, including the decision to discredit any 7 medical opinion, must simply be supported by substantial evidence.” Woods, 32 8 F.4th at 787. Nevertheless, 9 Even under the new regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence. The agency must “articulate ... how persuasive” it finds “all of the medical opinions” from each doctor or other source, 20 C.F.R. § 404.1520c(b), and “explain how [it] considered the supportability and consistency factors” in reaching these findings, id. § 404.1520c(b)(2). 10 11 12 13 14 15 2. Relevant Medical Record 16 Plaintiff was born in July 1990, and she was 15 years of age on her alleged 17 disability onset date. [AR 47, 184.] At the administrative hearing, Plaintiff testified 18 that she dropped out of high school before her senior year after suffering from a 19 seizure in 2006. [AR 37, 205, 716-717, 757.] Following her seizure, Plaintiff 20 reported spending two weeks in the hospital where she was diagnosed with multiple 21 sclerosis (“MS”). [AR 757.] In her function report, Plaintiff stated that her MS 22 causes “pain and weakness on a daily basis.” [AR 225.] Her MS also causes 23 memory loss, cognitive impairment, and it limits her ability to concentrate. [AR 24 225.] 25 On June 30, 2011, Plaintiff began treating with Dr. Burnett, a board-certified 26 neurologist. [AR 757.] Dr. Burnett provided treatment for Plaintiff’s MS, 27 depression, and cognitive impairment at Harbor UCLA and Rancho Los Amigos 28 Rehabilitation Center from 2011 through at least October 2019. [AR 407-409, 4136 1 2 419, 425-426, 451-456, 458-459, 476-478, 733, 743, 909, 1475-1498.] At her June 2011 examination, Plaintiff reported being “fairly stable” on 3 Rebif injections and experiencing “no relapse” during 2010. [AR 757.] Plaintiff 4 complained of being “forgetful” and she had “some problems with concentration.” 5 [AR 758.] Dr. Burnett noted Plaintiff was “slightly slow,” but could “give a good 6 history” using “normal language.” [AR 758.] Dr. Burnett continued Plaintiff’s 7 medication and referred her “to vocational rehab for the possibility of work 8 exploration, as well as the possibility of finishing her GED.” [AR 759.] 9 In, or around, February 2012, Plaintiff became pregnant. [AR 578.] A few 10 months after the birth of her daughter, in April 2013, Plaintiff reported she was on 11 no medications. [AR 974.] She informed her provider that her ability to walk was 12 “not limited,” but she was “weak and numb on her right side including her arm and 13 leg,” so she had to carry her daughter on her left. [AR 974.] Plaintiff’s cognition 14 was noted as “within normal limits” (AR 974), however her comprehension was 15 noted as “mildly slow.” [AR 975.] 16 Later in 2013, Dr. Burnett indicated that Plaintiff had poor compliance with 17 her medications because she could not manage the injections. [AR 755.] Dr. 18 Burnett referred Plaintiff to physical therapy “to improve the strength and use of her 19 upper extremities.” [AR 755.] Dr. Burnett also discussed sending Plaintiff for a 20 clinical trial at USC, but she noted that it would require “careful discussion” with 21 Plaintiff who had been noncompliant with her medication. [AR 755.] In December 22 of the same year, Plaintiff complained of weakness but reported having no pain. 23 Upon examination, Dr. Burnett noted that Plaintiff appeared to be “weak bilaterally 24 with some limp on the left.” [AR 743.] She was given a five-day course of steroids. 25 [AR 743.] 26 By April 2014, Plaintiff was being treated with Tysabri infusions which she 27 was tolerating well without any issues. [AR 751.] Plaintiff, however, complained 28 of “some problems with concentration and depression.” [AR 751.] She reported 7 1 “doing fairly well,” having “lots of energy,” sleeping well, and “tolerating” her 2 protocol. [AR 751.] But she also reported that she “occasionally feels as if she is 3 going to fall when walking.” [AR 751.] 4 On May 17, 2014, Plaintiff went to the emergency room requesting a 5 “Tysabri injection” as prescribed by Dr. Burnett. [AR 563.] Plaintiff presented with 6 complaints of intermittent dizziness, double vision, right leg burning sensation, and 7 “MS flare ups.” [AR 563.] Plaintiff reported that she was previously taking Tysabri 8 which “helped with her symptoms,” but she had last received the medication two 9 months ago. [AR 563.] Plaintiff explained that she went to a facility in Torrance to 10 receive her infusion, but she was denied “likely because of insurance reasons.” [AR 11 563.] Dr. Burnett instructed Plaintiff to go to Harbor UCLA to get the infusion and 12 “she waited for over 12 hours at Harbor UCLA [but] was not seen.” [AR 563.] 13 In 2015, and 2016, Plaintiff reported increased symptoms after missing her 14 monthly Tysabri injections for three months “because of insurance issues.” [AR 15 566, 748.] At that time, Plaintiff reported walking an hour per day with her 16 daughter and riding a stationary bicycle for exercise. [AR 837, 894, 897.] 17 However, Dr. Burnett completed paperwork for Plaintiff so that she could obtain a 18 “parking sticker as it is somewhat difficult for [Plaintiff] to walk far distances.” 19 [AR 901.] Upon examination, her clinical findings were noted as “stable” with 20 some slight weakness, and a mild cognitive impairment. [AR 562, 564, 749, 752, 21 837-39, 891, 894, 895-96, 898]. 22 In 2017 and 2018, Plaintiff lived with her boyfriend and pre-school-aged 23 child, for whom she provided regular care. [See AR 734, 807.] During this time, 24 Plaintiff continued to receive her scheduled infusion treatments (see, e.g., AR 428, 25 794, 796, 799), exercise on a regular basis (see, e.g., AR 433, 473, 488, 828, 949), 26 and she was generally stable. [See, e.g., AR 464, 488, 537, 795, 809.] 27 On September 17, 2018, Plaintiff attended a consultative neurological 28 examination for her disability claim conducted by neurologist Robert Moore, M.D. 8 1 [AR 725-729.] At the time of the examination, Dr. Moore expressed that he did not 2 “have access to [Plaintiff’s] medical records.” [AR 728.] Plaintiff reported that “at 3 the current time,” her legs feel weak. [AR 726.] However, Dr. Moore noted that 4 Plaintiff could “arise from a chair unassisted.” [AR 727.] She exhibited “possibly a 5 mild left foot drop with a minor tendency to circumduct the left leg and [she] does 6 not heel-toe or tandem walk.” [AR 727.] 7 During the consultative examination, Plaintiff was able to recall two of three 8 objects after five minutes; she had mildly decreased rapid alternating movements in 9 her toes and slightly slow performance of heel-shin test, and she had reduced (1/4) 10 reflexes and only mildly reduced (5-/5 to 4+/5) motor strength. [AR 727-28.] Dr. 11 Moore opined that Plaintiff had the capacity for a range of light exertion work, with 12 the ability to stand or walk two hours in an eight-hour workday. [AR 728-29.] Dr. 13 Moore additionally opined that Plaintiff was “cognitively intact.” [AR 729.] 14 On February 19, 2020, Dr. Burnett completed a residual functional capacity 15 questionnaire. [AR 1485-1489.] Dr. Burnett opined, among other limitations, that 16 Plaintiff could stand or walk less than two hours in an eight-hour workday and 17 would miss three days of work per month. [AR 26, 1487.] Dr. Burnett additionally 18 opined that Plaintiff could stand for only five minutes at a time before requiring rest 19 and could sit for no more than two hours before needing to get up. [AR 1487.] 20 21 The ALJ gave the following reasons for finding Dr. Burnett’s opinion unpersuasive: 22 23 24 25 26 27 28 This opinion is unpersuasive because it is brief, conclusory, and inadequately supported by objective findings. Dr. Burnett did not support her opinion with an explanation for this assessment. She primarily summarized in the treatment notes claimant’s subjective complaints, diagnoses and treatment but failed to provide medically acceptable clinical or diagnostic findings to support her restrictive assessment. Moreover, her opinion is inconsistent with the record as a whole, which revealed some benign objective findings, but with many physical and neurological examinations in which objective findings 9 1 2 3 were unremarkable. It is also inconsistent with the routine and conservative treatment involving medications, which the claimant admitted was effective in controlling her symptoms. [AR 26.] 4 5 3. Analysis 6 Plaintiff argues that the ALJ failed to adequately articulate why she found the 7 2020 opinion of treating neurologist, Margaret Burnett, M.D. unpersuasive. [Pltf.’s 8 Br. at 5-12; AR 1485-1489.] Plaintiff argues that the ALJ provided a boilerplate 9 reasoning that was unsupported by substantial evidence. Additionally, Plaintiff 10 maintains that because her symptoms “wax and wane,” the ALJ should not have 11 relied on the one-time examination by the consultative examiner. Rather, the ALJ 12 should have found the opinion of Plaintiff’s long time treatment specialist most 13 persuasive as it was supported by extensive treatment notes and diagnostic findings. 14 (Pltf.’s Br. at 10.) 15 The Court agrees with Plaintiff. The ALJ’s evaluation of the opinion of Dr. 16 Burnett did not satisfy the agency’s articulation requirement for the persuasiveness 17 of medical opinions. The ALJ failed to engage with Dr. Burnett’s assessment in any 18 meaningful sense and made only a passing assessment of the “supportability” and 19 “consistency” factors that the Commissioner deems most important. 82 Fed. Reg. at 20 5853. The ALJ’s apparent analysis of the “supportability” factor is limited to the 21 boilerplate statement that Dr. Burnett did not support her opinion with “medically 22 acceptable clinical or diagnostic findings to support her restrictive assessment.” 23 [AR 26.] This fails to provide any substantive reason for rejecting Dr. Burnett’s 24 detailed treatment notes that were supported by MRI’s, blood tests, clinic 25 interviews, and a detailed history demonstrating medication management for 26 Plaintiff’s recurring and relapsing MS symptoms. [See e.g. AR 760, 762, 766.] For 27 example, on May 22, 2014, Dr. Burnett noted “we obtained an MRI of the brain and 28 the orbits with and without contrast today stat. Per my read, she has multiple 10 1 enhancing lesions which are also pointed out by Neuroradiology. She has an 2 enhancing right optic nerve despite 3 days of treatment.” [AR 749.] Plaintiff had 3 additional MRI’s in February 2017 and January 2018. [AR 1375 4 While the ALJ found that Dr. Burnett’s treatment notes merely summarized 5 Plaintiff’s “subjective complaints,” Dr. Burnett’s opinion was based on both 6 Plaintiff’s statements and Dr. Burnett’s many examinations, including mental status 7 examinations. Clinical interviews and mental status evaluations are “objective 8 measures and cannot be discounted as a ‘self-report.’” Buck v. Berryhill, 869 F.3d 9 1040, 1049 (9th Cir. 2017). Given the existence of objective clinical and diagnostic 10 evidence underlying Dr. Burnett’s opinion, the ALJ’s conclusory statement 11 otherwise was insufficient as an explanation for how the factor of supportability was 12 considered. See Maria S. v. Kijakazi, No. 2:20-cv-09783-MAA, 2022 U.S. Dist. 13 LEXIS 66967 (C.D. Cal. Apr. 11, 2022) (citing Steele v. Saul, 520 F. Supp. 3d 1198, 14 1210 (D. Alaska 2021) (“But, ‘[t]he Commissioner’s new regulations still require 15 the ALJ to explain his or her reasoning, and to specifically address how he or she 16 considered the supportability and consistency of the opinion.’”). The ALJ’s single- 17 sentence statement fails to substantively engage with Dr. Burnett’s assessment. 18 The same conclusion applies to the ALJ’s apparent analysis of “consistency.” 19 The ALJ found that Dr. Burnett’s opinion was inconsistent with the record which 20 revealed “some benign objective findings, but [] many physical and/or neurological 21 examinations in which the objective findings were unremarkable.” [AR 26.] Based 22 on the ALJ’s statement, the record consisted of (1) benign objective findings; (2) 23 unremarkable physical examinations; and (3) unremarkable neurological 24 examinations. This statement mischaracterizes the record. The record included 25 evidence that Plaintiff suffered from flare ups and an “aggressive” exacerbation of 26 her MS symptoms sometimes requiring steroid treatments. [AR 743, 748, 1132, 27 1137, 1140.] Further, even while adhering to her Tysabri injections, in December 28 2018, Plaintiff reported that she “went to the ER” after she fell, hit her head, and lost 11 1 consciousness for five minutes after her “leg buckled and she fell.” [AR 938.] 2 Additionally, Plaintiff regularly presented to medical visits with facial asymmetry, 3 numbness and tingling in her legs, balance issues, foot drop, a slow gait, a limp, and 4 muscle weakness. [AR 727, 728, 734, 745, 749, 752, 758, 791, 891, 839, 976, 5 1211.] While there is some evidence to suggest that Plaintiff’s MS symptoms 6 escalated on an intermittent basis due to lack of medication, substantial evidence 7 does not support the ALJ’s finding that the record included only unremarkable and 8 benign objective findings. 9 In opposing Plaintiff’s motion, Defendant has attempted to offer the reasoning 10 and specificity that is absent from the ALJ’s opinion. (Def.’s Br at 19-22.) For 11 example, Defendant argues that Dr. Burnett’s opinion is “internally inconsistent,” a 12 rationale not mentioned by the ALJ. The Court, however, may not speculate as to 13 the ALJ’s findings or the basis of the ALJ’s unexplained conclusions. See Burrell v. 14 Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (“We are constrained to review the 15 reasons the ALJ asserts.”); Bray v. Commissioner of Social Security Admin., 554 16 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law 17 require us to review the ALJ’s decision based on the reasoning and factual findings 18 offered by the ALJ—not post hoc rationalizations that attempt to intuit what the 19 adjudicator may have been thinking.”); Stout v. Comm’r, 454 F.3d 1050, 1054 (9th 20 Cir. 2006) (a reviewing court cannot affirm an ALJ’s decision denying benefits on a 21 ground not invoked by the Commissioner). The Court is constrained to review the 22 explanation actually provided by the ALJ. Connett v. Barnhart, 340 F.3d 871, 874 23 (9th Cir. 2003) (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 91 24 L. Ed. 1995 (1947)). The only explanation actually provided by the ALJ for the 25 factors of supportability and consistency was conclusory and, therefore, failed to 26 satisfy the agency’s articulation requirement. Remand is warranted on this issue. 27 28 V. CONCLUSION The Court has discretion to remand or reverse and award benefits. See 12 1 Trevizo, 871 F.3d at 682. Where no useful purpose would be served by further 2 proceedings and the record has been fully developed, it may be appropriate to 3 exercise this discretion to direct an immediate award of benefits. See id. at 682-83. 4 But where there are outstanding issues that must be resolved before a determination 5 of disability can be made or it is not clear from the record that the ALJ would be 6 required to find a claimant disabled if all the evidence were properly evaluated, 7 remand is appropriate. See Garrison, 759 F.3d at 1021 (if “an evaluation of the 8 record as a whole creates serious doubt that a claimant is, in fact, disabled,” a court 9 must remand for further proceedings). 10 The Court finds that remand is appropriate because the circumstances of this 11 case suggest that further administrative review could remedy the ALJ’s errors. See 12 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) 13 (remand for award of benefits is inappropriate where “there is conflicting evidence, 14 and not all essential factual issues have been resolved”). On remand, the ALJ 15 should conduct a review of the entire record in a manner consistent with the Court’s 16 findings. 17 For all of the foregoing reasons, IT IS ORDERED that: 18 (1) the Decision of the Commissioner is REVERSED and this matter 19 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 20 administrative proceedings consistent with this Order; and 21 (2) Judgment be entered in favor of Plaintiff. 22 23 IT IS SO ORDERED. 24 25 DATED: July 08, 2022 26 27 28 ___________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 13
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