Melynda Parker v. Carolyn W. Colvin, No. 5:2016cv02363 - Document 22 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (See document for details.) (sbou)
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Melynda Parker v. Carolyn W. Colvin Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MELYNDA PARKER, 12 13 14 15 16 17 18 ) ) Plaintiff, ) ) v. ) ) ) NANCY A. BERRYHILL, Deputy ) Commissioner for Operations of Social ) Security Administration, ) ) Defendant. ) ) ) Case No. ED CV 16-2363-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On November 15, 2016, plaintiff Melynda Parker filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of a period of disability, disability 24 insurance benefits (“DIB”), and supplemental security income (“SSI”). The parties 25 have fully briefed the matters in dispute, and the court deems the matter suitable 26 for adjudication without oral argument. 27 Plaintiff presents one disputed issue for decision: whether the Administrative 28 1 Dockets.Justia.com 1 Law Judge (“ALJ”) properly considered the opinion of an examining physician in 2 his residual functional capacity (“RFC”) determination. Memorandum in Support 3 of Plaintiff’s Complaint (“P. Mem.”) at 3-10; Memorandum in Support of 4 Defendant’s Answer (“D. Mem.”) at 3-6. 5 Having carefully studied the parties’ memoranda on the issue in dispute, the 6 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 7 that, as detailed herein, the ALJ improperly failed to consider all of the examining 8 physician’s opined mental limitations in his RFC determination. The court 9 therefore remands this matter to the Commissioner in accordance with the 10 principles and instructions enunciated in this Memorandum Opinion and Order. 11 II. 12 FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff was forty-six years old on her alleged disability onset date. AR at 14 72, 89, 108, 125. Plaintiff has a seventh grade education and past relevant work as 15 a retail sales associate. Id. at 44-47, 67, 72, 89. 16 On December 7, 2012, plaintiff filed applications for a period of disability, 17 DIB, and SSI, alleging an onset disability date of April 9, 2011. Id. at 72, 89, 22118 28, 229-34. Plaintiff alleged disability due to chronic obstructive pulmonary 19 disease (“COPD”), heart failure, diabetes, and depression. Id. at 72, 89. The 20 Commissioner denied plaintiff’s applications initially and upon reconsideration, 21 after which she filed a request for a hearing. Id. at 146-52, 153-59, 161-66, 16722 72, 173. 23 On April 22, 2015, plaintiff, represented by an attorney, appeared and 24 testified before the ALJ. Id. at 43-66. The ALJ also heard testimony from 25 Elizabeth Ramos Brown, a vocational expert (“VE”). Id. at 66-69, 213-14. On 26 July 13, 2015, the ALJ denied plaintiff’s claim for benefits. Id. at 20-34. 27 Applying the well-known five-step sequential evaluation process, the ALJ 28 2 1 found, at step one, that plaintiff had not engaged in substantial gainful activity 2 since April 9, 2011, the alleged disability onset date. Id. at 25. 3 At step two, the ALJ found plaintiff suffered from the following severe 4 impairments: spina bifida, history of pulmonary embolism, cardiac dysrhythmias, 5 COPD, obesity, and mood disorder. Id. 6 At step three, the ALJ found plaintiff’s impairments, whether individually or 7 in combination, did not meet or medically equal one of the listed impairments set 8 forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the “Listings”). Id. at 26. The ALJ then assessed plaintiff’s residual functional capacity,1 and 9 10 determined she had the RFC to perform light work, with the limitations that she: 11 could only occasionally perform postural activities; could not work on ladders, 12 ropes, or scaffolds; must avoid concentrated exposure to extremes of temperature 13 and pulmonary irritants; and could not work at unprotected heights or around 14 dangerous machinery. Id. at 28. The ALJ also limited plaintiff to non-complex 15 and routine tasks, but no tasks requiring hypervigilance, no responsibility for the 16 safety of others, no jobs requiring public interaction, and no jobs requiring 17 significant teamwork. Id. 18 The ALJ found, at step four, that plaintiff was unable to perform her past 19 relevant work. Id. at 31. 20 At step five, the ALJ determined that, based upon plaintiff’s age, education, 21 work experience, and RFC, plaintiff could perform other jobs that exist in 22 significant numbers in the national economy, including basket filler, garment 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115526 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 3 1 bagger, and folding machine operator. Id. at 33. Consequently, the ALJ concluded 2 plaintiff did not suffer from a disability as defined by the Social Security Act 3 (“SSA”). Id. at 33-34. 4 Plaintiff filed a timely request for review of the ALJ’s decision, which was 5 denied by the Appeals Council. Id. at 1-3, 16-18. The ALJ’s decision stands as the 6 final decision of the Commissioner. 7 III. 8 STANDARD OF REVIEW 9 This court is empowered to review decisions by the Commissioner to deny 10 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 11 Administration must be upheld if they are free of legal error and supported by 12 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 13 (as amended). But if the court determines the ALJ’s findings are based on legal 14 error or are not supported by substantial evidence in the record, the court may 15 reject the findings and set aside the decision to deny benefits. Aukland v. 16 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 17 1144, 1147 (9th Cir. 2001). 18 “Substantial evidence is more than a mere scintilla, but less than a 19 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 20 “relevant evidence which a reasonable person might accept as adequate to support 21 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 22 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 23 finding, the reviewing court must review the administrative record as a whole, 24 “weighing both the evidence that supports and the evidence that detracts from the 25 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 26 affirmed simply by isolating a specific quantum of supporting evidence.’” 27 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 28 4 1 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 2 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 3 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 4 1992)). 5 IV. 6 DISCUSSION 7 Plaintiff argues the ALJ improperly rejected the opinion of an examining 8 physician, Dr. Kara Cross. P. Mem. at 3-10. Specifically, plaintiff contends the 9 ALJ’s RFC limitations failed to adequately incorporate Dr. Cross’s mental 10 impairment findings, and the failure to do so was not supported by substantial 11 evidence in the administrative record. Id. at 6-8. Defendant responds the ALJ 12 appropriately accommodated Dr. Cross’s opinion in his RFC determination. D. 13 Mem. at 3-6. 14 In determining whether a claimant has a medically determinable impairment, 15 among the evidence the ALJ considers is medical evidence. 20 C.F.R. §§ 16 404.1527(b), 416.927(b). In evaluating medical opinions, the regulations 17 distinguish among three types of physicians: (1) treating physicians; (2) examining 18 physicians; and (3) non-examining physicians. 20 C.F.R. §§ 404.1527(c), (e), 19 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). 20 “Generally, a treating physician’s opinion carries more weight than an examining 21 physician’s, and an examining physician’s opinion carries more weight than a 22 reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 23 2001); 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.027(c)(1)-(2). The opinion of the 24 treating physician is generally given the greatest weight because the treating 25 physician is employed to cure and has a greater opportunity to understand and 26 observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); 27 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 28 5 1 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 2 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 3 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 4 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 5 opinions, the ALJ must provide specific and legitimate reasons supported by 6 substantial evidence for rejecting it. Id. Likewise, the ALJ must provide specific 7 and legitimate reasons supported by substantial evidence in rejecting the 8 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 9 non-examining physician, standing alone, cannot constitute substantial evidence. 10 Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006); Morgan v. 11 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 12 813, 818 n.7 (9th Cir. 1993). 13 RFC is what one can “still do despite [his or her] limitations.” 20 C.F.R. 14 §§ 404.1545(a)(1)-(2), 416.945(a)(1)-(2). The ALJ reaches an RFC determination 15 by reviewing and considering all of the relevant evidence, including non-severe 16 impairments. Id. 17 A. Medical Opinions 18 1. 19 Dr. Kara Cross, Ph. D., a clinical psychologist, examined plaintiff on April Examining Physician Dr. Kara Cross 20 6, 2013 by administering a complete mental evaluation. AR at 306-12. Plaintiff 21 presented to the examination with complaints of trouble concentrating, worried 22 thoughts, moderate to severe depression due to her life situation and deteriorating 23 health, and past suicidal thoughts. Id. at 306-07. Dr. Cross noted plaintiff had not 24 received any psychiatric treatment, was never hospitalized in a psychiatric facility, 25 but was taking Celexa, Wellbutrin, Nexium, metopolol, Coumadin, 26 hydrochlorothiazide, and lovastatin medications. Id. at 307. 27 Plaintiff had fair relationships with her friends and family, could focus 28 6 1 attention, and had no difficulty making decisions. Id. at 308. But plaintiff had 2 some difficulty completing household tasks, was socially avoidant of others 3 besides her family, and tried to avoid her family due to her feelings of depression 4 and helplessness. Id. During the mental status examination, Dr. Cross observed 5 plaintiff had coherent and organized thought processes, good thought content and 6 speech, and was oriented to time, place, person, and purpose. Id. at 309. Yet 7 plaintiff’s mood and affect were very depressed, sad, tearful, and somewhat 8 anxious. Plaintiff also could not repeat four digits forward and backward, or recall 9 three items immediately and after five minutes. Id. Dr. Cross also observed 10 plaintiff’s difficulties with concentration and calculation, as she could not perform 11 serial threes or alpha numeric reasoning. Id. at 310. Based on the initial 12 evaluation, tests, history, and medical records, Dr. Cross’s diagnostic impression 13 was that plaintiff suffered from major depression, and she assessed plaintiff a 14 Global Assessment of Functioning (“GAF”) score of 55.2 15 With respect to plaintiff’s functional assessment, Dr. Cross opined plaintiff 16 had moderate mental impairments due to her depression with regard to her ability 17 to: relate and interact with co-workers and the public; maintain concentration and 18 attention, persistence, and pace; and maintain regular attendance in the workplace 19 and perform work activities on a consistent basis. AR at 311. Dr. Cross also 20 opined plaintiff was able to “understand, remember, and carry out simple one or 21 two-step job instructions,” and “[a]lthough she is able, she would not be able to 22 maintain emotional equilibrium for an 8-hour day.” Id. Plaintiff was also unable 23 to follow detailed or complex instructions. Id. Plaintiff had no functional 24 25 2 A GAF score of 55-60 indicates “[m]oderate symptoms (e.g., flat affect and 26 circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co27 workers).” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental 28 Disorders 34 (4th Ed. 2000) (“DSM”). 7 1 limitations with respect to her ability to: associate with day-to-day work activity, 2 including attendance and safety; ability to accept instructions from supervisors; 3 and ability to perform work activities without special or additional supervision. Id. 4 Dr. Cross additionally opined plaintiff would not be a danger in the workplace. Id. 5 2. 6 State agency physicians Dr. Brady Dalton, Psy. D., on May 9, 2013, and Dr. State Agency Physicians 7 Philip Rosenshield, Ph. D., on December 28, 2013, separately opined plaintiff had 8 the mental capacity for simple work in settings with limited social or public 9 contacts. Id. at 85-86, 102-03, 122, 139. Dr. Dalton and Dr. Rosenshield both 10 opined plaintiff had moderate limitation with respect to: understanding and 11 remembering detailed instructions; carrying out detailed instructions; maintaining 12 attention and concentration for extended periods; performing activities within a 13 schedule, maintaining regular attendance, and being punctual within customary 14 tolerances; working in coordination with or in proximity to others without being 15 distracted; completing a normal workday and workweek without interruptions from 16 psychologically-based symptoms and performing at a consistent pace without 17 unreasonable rest periods; interacting with the general public; and responding 18 appropriately to changes in the work setting. Id. at 84-85, 101-02, 120-22,137-39. 19 B. Medical Evidence 20 Plaintiff presented with depression and mild suicidal ideation at an 21 assessment performed for Riverside County Mental Health Plan on July 31, 2013. 22 Id. at 420-22. Plaintiff had a moderate dysfunction rating and a GAF score of 50.3 23 Id. at 422. A treatment plan of two sessions per month to see a psychiatrist for 24 medical evaluation was proposed. Id. Plaintiff was noted to be isolated and 25 sometimes slept all day without caring if she died. Id. at 423. 26 27 3 A GAF score of 41-50 is indicative of “serious symptoms,” such as suicidal 28 ideation or an inability to maintain employment. DSM at 34. 8 1 Plaintiff presented to Banning Mental Health on multiple occasions between 2 November 6, 2013 and February 24, 2014. See id. at 431-33. Progress notes 3 during these visits documented plaintiff’s depression, anxiety, irritability, and 4 angry mood, which occurred “daily almost all day.” Id. The notes also report 5 plaintiff experienced side effects of increased anger and agitation when her 6 prescription medication dosage was doubled. See id. at 433. Plaintiff’s mood 7 swings led to suicidal ideation and poor relationships with others. Id. 8 C. The ALJ’s Findings 9 The ALJ was obligated to consider plaintiff’s mental limitations, 10 notwithstanding the ALJ’s finding that they were non-severe impairments. See 11 Social Security Ruling 96-8p (“In assessing RFC, the adjudicator must consider 12 limitations and restrictions imposed by all of an individual’s impairments, even 13 those that are not ‘severe.’”). 14 The ALJ’s RFC determination included the following mental limitations for 15 plaintiff: limited to non-complex and routine tasks; no tasks requiring 16 hypervigilance; no responsibility for the safety of others; no jobs requiring public 17 interaction; and no jobs requiring significant teamwork. AR at 28. The ALJ gave 18 the opinions of Dr. Cross and the state agency physicians “significant” weight in 19 determining plaintiff was “capable of performing at least simple tasks with limited 20 social contact.” Id. at 31 (citing id. at 72-88, 89-105,108-24,125-41, 306-12). The 21 ALJ found plaintiff’s mental RFC was appropriate because the physicians’ 22 opinions were consistent with plaintiff’s testimony and lack of additional objective 23 mental health evidence. Id. The ALJ also suggested the medical record, as 24 evidenced by a lack of mental health treatment, supports his RFC finding. See 25 id. at 30-31. 26 Plaintiff argues the ALJ erred by rejecting specific portions of Dr. Cross’s 27 opinions, including that plaintiff was unable to maintain an emotional equilibrium 28 9 1 for an 8-hour day, plaintiff’s moderate impairment in maintaining concentration, 2 attention, persistence, and pace, and plaintiff’s moderate impairment in her ability 3 to maintain a regular attendance in the workplace and perform consistent work 4 activities. P. Mem. at 5, 6. 5 1. 6 As to plaintiff’s difficulty maintaining “emotional equilibrium,” none of the Emotional Equilibrium 7 ALJ’s RFC limitations appear to address this aspect of Dr. Cross’s opinion. The 8 medical record suggests plaintiff’s depression affected her daily mood, which was 9 consistently noted to be angry or irritable. But the court agrees with defendant that 10 Dr. Cross’s opinion is confusingly stated and self-contradictory. See D. Mem. at 511 6. Dr. Cross states that “[a]lthough she is able, [plaintiff] would not be able to 12 maintain emotional equilibrium for an 8-hour day.” AR at 311. The structure of 13 the statement leaves unclear what Dr. Cross intended to convey regarding 14 plaintiff’s actual ability to maintain emotional equilibrium throughout a workday. 15 As such, the ALJ may have reasonably determined that Dr. Cross opined plaintiff 16 could maintain her emotional equilibrium for a full workday. The ALJ did not err 17 in his RFC determination by failing to accommodate this particular opinion, since 18 he could have relied on Dr. Cross’s own statement to find plaintiff was in fact able 19 to maintain emotional equilibrium. 20 2. 21 With respect to Dr. Cross’s opinion that plaintiff had moderate impairments Concentration, Attention, Persistence, and Pace 22 in her ability to maintain concentration, attention, persistence, and pace, it appears 23 the ALJ adequately accommodated this limitation by imposing a restriction that 24 plaintiff not perform any tasks requiring “hypervigilance.” AR at 28. In essence, 25 this particular RFC limitation appears designed to restrict plaintiff from tasks 26 requiring careful attention or focus. Plaintiff has not explained how the 27 hypervigilance restriction does not accommodate Dr. Cross’s concentration, 28 10 1 attention, persistence, and pace restrictions. Accordingly, the ALJ did not appear 2 to reject this portion of Dr. Cross’s opinion, as defendant suggests. See D. Mem. at 3 5. 4 3. Ability to Maintain Regular Attendance 5 The crux of the RFC issue here is the ALJ’s failure to address, either in his 6 development of the record or RFC discussion, Dr. Cross’s opinion regarding 7 limitations on plaintiff’s ability to maintain regular attendance and consistently 8 perform work activity. If the ALJ rejected Dr. Cross’s findings of moderate mental 9 limitations relating to plaintiff’s ability to maintain a regular attendance in the 10 workplace, he was required to say so and provide specific and legitimate reasons 11 supported by substantial evidence in the record. See Lester, 81 F.3d at 830. The 12 ALJ gave no such reasons here. On the contrary, the ALJ’s RFC analysis indicated 13 he accepted Dr. Cross’s opinion, as he gave significant weight to it and stated it 14 was consistent with plaintiff’s testimony and the objective medical record. See AR 15 at 31. The ALJ also gave significant weight to the opinions of the state non16 examining physicians to support his RFC determination. Id. As noted above, both 17 Dr. Dalton and Dr. Rosenshield opined plaintiff had moderate limitations relating 18 to her ability to perform activities within a schedule, maintain regular attendance, 19 and be punctual within customary tolerances. Id. at 84, 101, 121, 138. These non20 examining opinions do not controvert Dr. Cross’s opinion but instead serve as 21 substantial evidence that is consistent with Dr. Cross’s independent clinical 22 findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). But despite 23 giving significant weight to Dr. Cross and the non-examining state physicians’ 24 opinions, the ALJ appears to have actually rejected them in part, given that he did 25 not incorporate the opined moderate limitations relating to regular workplace 26 attendance into his RFC determination. 27 The ALJ cited plaintiff’s own testimony and the objective medical record as 28 11 1 justification for his RFC finding. AR at 31. The ALJ’s reliance on the lack of 2 mental health treatment in the record relates to plaintiff’s credibility for her 3 allegations, which is not at issue here. See id. at 30. This is an improper basis to 4 reject the examining physician’s opinions, even assuming it was a basis. See 5 Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001) (“In sum, the ALJ 6 appears to have relied on her doubts about [the claimant’s] overall credibility to 7 reject the entirety of [the examining psychologist’s] report, including portions that 8 [the psychologist] deemed to be reliable.”). Nothing in the record indicates Dr. 9 Cross did not believe plaintiff’s description of her symptoms, or that Dr. Cross 10 relied on plaintiff’s descriptions more heavily than her own observations in opining 11 plaintiff had moderate impairments in maintaining a regular work schedule. See 12 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1200 (9th Cir. 2007). The remaining 13 portions of the medical record relating to plaintiff’s mental health also do not 14 support a rejection of Dr. Cross’s opinion. As documented above, the mental 15 health medical record noted plaintiff’s depression and resulting symptoms, but did 16 not reveal any findings relating to plaintiff’s ability to attend work. 17 Plaintiff’s testimony at the hearing also did not address her ability, or lack 18 thereof, to regularly attend a job. Plaintiff testified that her depression negatively 19 affects her ability to interact with others and her concentration and memory. AR at 20 50-52. She was seeing social worker Peter Hilliard for her mental issues. See id. 21 at 53, 57. Her primary care physician Dr. Edward Bacho had prescribed 22 psychiatric medications, though it was described at the hearing as not significant 23 treatment. Id. at 57, 64. Plaintiff stated she was not mentally able to handle the 24 responsibility of working and cited her past unsuccessful return to work to provide 25 examples where she had memory and focus issues. Id. at 53-54. Plaintiff’s 26 testimony arguably supports the ALJ’s RFC findings with respect to her ability to 27 perform simple tasks with limited social interaction. But the testimony does not 28 12 1 clearly address Dr. Cross’s opinion that plaintiff would have moderate impairments 2 relating to her ability to maintain regular workplace attendance. At most the 3 testimony might be said to substantiate Dr. Cross’s limitation, since plaintiff 4 testified to her mental inability to return to work. As such, plaintiff’s testimony 5 does not provide a specific and legitimate reason supported by substantial evidence 6 to justify the ALJ’s implicit rejection of this aspect of Dr. Cross’s mental limitation 7 opinion. 8 Consequently, the ALJ erred in his RFC determination because he was 9 required to consider all of the mental limitations opined by Dr. Cross, which in this 10 case included moderate limitations with regard to plaintiff’s ability to maintain a 11 regular attendance in the workplace and consistently perform work activities. See 12 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 13 (ALJ erred in failing to include a treating physician’s opined limitation in his RFC 14 assessment). The ALJ’s failure to even acknowledge the opined limitation 15 anywhere in his RFC discussion suggests he simply ignored this aspect of Dr. 16 Cross’s opinion without reason. The ALJ may ultimately conclude that the opined 17 mental limitation does not need to be included in plaintiff’s RFC, but his failure to 18 even consider the mental limitation in his RFC determination was error. Nor was it 19 plainly a harmless error, given the absence of clear testimony from the vocational 20 expert as to the effect such moderate regular attendance limitations would have on 21 plaintiff’s ability to work. See AR at 67-69. As such, the ALJ erred in his RFC 22 assessment. 23 V. 24 REMAND IS APPROPRIATE 25 The decision whether to remand for further proceedings or reverse and 26 award benefits is within the discretion of the district court. McAllister v. Sullivan, 27 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 28 13 1 discretion to direct an immediate award of benefits where: “(1) the record has been 2 fully developed and further administrative proceedings would serve no useful 3 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 4 evidence, whether claimant testimony or medical opinions; and (3) if the 5 improperly discredited evidence were credited as true, the ALJ would be required 6 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 7 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 8 instructions to calculate and award benefits). But where there are outstanding 9 issues that must be resolved before a determination can be made, or it is not clear 10 from the record that the ALJ would be required to find a plaintiff disabled if all the 11 evidence were properly evaluated, remand for further proceedings is appropriate. 12 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 13 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 14 further proceedings when, even though all conditions of the credit-as-true rule are 15 satisfied, an evaluation of the record as a whole creates serious doubt that a 16 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 17 Here, remand is required because the ALJ erred in his RFC determination, 18 and it is unclear what plaintiff’s RFC would be if the ALJ properly considered the 19 entirety of Dr. Cross’s opinion, or what effect a change in RFC would have on the 20 disability determination. On remand, the ALJ shall consider all of the mental 21 limitations opined by Dr. Cross and reassess plaintiff’s RFC. The ALJ shall then 22 proceed through steps four and five to determine what work, if any, plaintiff is 23 capable of performing. 24 // 25 // 26 27 28 14 1 VI. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered 4 REVERSING the decision of the Commissioner denying benefits, and 5 REMANDING the matter to the Commissioner for further administrative action 6 consistent with this decision. 7 8 DATED: October 9, 2018 9 10 SHERI PYM United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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