Anthony Robert White v. Carolyn W Colvin, No. 8:2016cv00082 - Document 16 (C.D. Cal. 2016)

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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Anthony Robert White v. Carolyn W Colvin Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ANTHONY ROBERT WHITE, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. SA CV 16-82-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 Plaintiff filed a Complaint on January 20, 2016, seeking review 26 of the Commissioner’s denial of benefits. The parties filed a consent 27 to proceed before a United States Magistrate Judge on March 8, 2016. 28 /// Dockets.Justia.com 1 Plaintiff filed a motion for summary judgment on June 9, 2016. 2 Defendant filed a motion for summary judgment on July 11, 2016.1 3 Court has taken both motions under submission without oral argument. 4 See L.R. 7-15; “Order,” filed January 20, 2016. The 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Plaintiff, a former plumber, alleges disability since March 4, 2011, based primarily on alleged neck pain (Administrative Record 10 (“A.R.”) 14, 32-45, 142-45, 159-60). Two of Plaintiff’s treating 11 physicians, Doctors Standiford Helm and Jerald Waldman, opined that 12 Plaintiff’s impairments restricted Plaintiff’s functional capacity so 13 profoundly as to preclude all employment (A.R. 416-20, 432-40). 14 15 An Administrative Law Judge (“ALJ”) found Plaintiff suffers from 16 several severe impairments, including “cervical spondylosis with 17 degenerative disc disease and central disc bulge” (A.R. 16). 18 rejected the treating physicians’ opinions, however, finding that, as 19 of Plaintiff’s last insured date (December 31, 2013), Plaintiff 20 retained the residual functional capacity to perform a restricted 21 range of light work (A.R. 16-21). 22 restrictions the ALJ found to exist was an inability to perform any 23 “overhead reaching” with either hand (A.R. 17). 24 /// 25 /// The ALJ One of the work-related 26 27 28 1 Defendant’s motion violates paragraph VI of this Court’s “Order,” filed January 20, 2016. Counsel for Defendant shall heed the Court’s orders in the future. 2 1 The ALJ found that a person having this restricted functional 2 capacity could not perform Plaintiff’s past relevant work as a plumber 3 (A.R. 21). 4 ALJ found that a person having this restricted functional capacity 5 (including an inability to reach overhead) could perform significant 6 numbers of Cashier II and Information Clerk jobs (A.R. 22, 47, 50). In reliance on the testimony of a vocational expert, the 7 8 9 The Dictionary of Occupational Titles (“DOT”) provides that the jobs of Cashier II and Information Clerk require frequent reaching. 10 See DOT 211.462-010; DOT 237.367-018. Neither the ALJ nor the 11 vocational expert recognized or explained any possible conflict 12 between the information in the DOT and the testimony of the vocational 13 expert concerning the reaching requirements of the jobs identified.2 14 The Appeals Council considered additional evidence, but denied review 15 (A.R. 1-7). 16 17 STANDARD OF REVIEW 18 19 Under 42 U.S.C. section 405(g), this Court reviews the 20 Administration’s decision to determine if: (1) the Administration’s 21 findings are supported by substantial evidence; and (2) the 22 Administration used correct legal standards. 23 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, See Carmickle v. 24 25 26 27 28 2 The ALJ and the vocational expert did recognize and explain conflicts between the information in the DOT and the testimony of the vocational expert concerning certain other requirements of the jobs identified (A.R. 22, 49-53). Nothing in the decision of the ALJ or the testimony of the vocational expert addressed a possible conflict concerning reaching, however. 3 1 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 2 682 F.3d 1157, 1161 (9th Cir. 2012). 3 relevant evidence as a reasonable mind might accept as adequate to 4 support a conclusion.” 5 (1971) (citation and quotations omitted); see also Widmark v. 6 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 7 8 If the evidence can support either outcome, the court may 9 not substitute its judgment for that of the ALJ. But the 10 Commissioner’s decision cannot be affirmed simply by 11 isolating a specific quantum of supporting evidence. 12 Rather, a court must consider the record as a whole, 13 weighing both evidence that supports and evidence that 14 detracts from the [administrative] conclusion. 15 16 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 17 quotations omitted). 18 19 Where, as here, the Appeals Council considered additional 20 evidence but denied review, the additional evidence becomes part of 21 the record for purposes of the Court’s analysis. 22 Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers 23 new evidence in deciding whether to review a decision of the ALJ, that 24 evidence becomes part of the administrative record, which the district 25 court must consider when reviewing the Commissioner’s final decision 26 for substantial evidence”; expressly adopting Ramirez v. Shalala, 8 27 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 28 1228, 1231 (2011) (courts may consider evidence presented for the 4 See Brewes v. 1 first time to the Appeals Council “to determine whether, in light of 2 the record as a whole, the ALJ’s decision was supported by substantial 3 evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 4 957 n.7 (9th Cir. 1993) (“the Appeals Council considered this 5 information and it became part of the record we are required to review 6 as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 7 8 DISCUSSION 9 10 11 I. The ALJ Erred in the Evaluation of the Treating Physicians’ Opinions. 12 13 The ALJ must “consider” and “evaluate” every medical opinion of 14 record. 20 C.F.R. § 404.1527(b) and (c); see Social Security Ruling 15 (“SSR”) 96-8p.3 16 reject [medical] evidence for no reason or the wrong reason.” 17 v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981); see Day v. Weinberger, 18 522 F.2d 1154, 1156 (9th Cir. 1975) (ALJ may not make his or her own 19 lay medical assessment). In this consideration and evaluation, an ALJ “cannot Cotter 20 21 Under the law of the Ninth Circuit, the opinions of treating 22 physicians command particular respect. “As a general rule, more 23 weight should be given to the opinion of the treating source than to 24 the opinion of doctors who do not treat the claimant. . . .” 25 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citations omitted). Lester 26 27 28 3 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 5 A 1 treating physician’s conclusions “must be given substantial weight.” 2 Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. 3 Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must give 4 sufficient weight to the subjective aspects of a doctor’s opinion. 5 . . . 6 physician”) (citation omitted); see also Orn v. Astrue, 495 F.3d 625, 7 631-33 (9th Cir. 2007) (discussing deference owed to treating 8 physicians’ opinions). 9 are contradicted,4 “if the ALJ wishes to disregard the opinion[s] of This is especially true when the opinion is that of a treating Even where the treating physician’s opinions 10 the treating physician he . . . must make findings setting forth 11 specific, legitimate reasons for doing so that are based on 12 substantial evidence in the record.” 13 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see 14 Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may disregard the 15 treating physician’s opinion, but only by setting forth specific, 16 legitimate reasons for doing so, and this decision must itself be 17 based on substantial evidence”) (citation and quotations omitted). Winans v. Bowen, 853 F.2d 643, 18 19 In the present case, the ALJ erred by relying on illegitimate 20 reasoning to reject the opinions of the treating physicians. First, 21 the ALJ appeared to discount the credibility of the treating 22 physicians because Plaintiff initially retained the physicians in the 23 context of worker’s compensation proceedings. 24 /// The ALJ stated: 25 26 4 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of “clear and convincing” reasons. Smolen v. Chater, 80 F.3d at 1285; Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 6 1 The physicians retained by either party in the context of 2 worker’s compensation cases are often biased and do not 3 provide truly objective opinions. 4 physician in the context of a workers’ compensation claim 5 often serves as an advocate for the claimant and describes 6 excessive limitations to enhance the claimant’s financial 7 recovery (A.R. 20). The claimant’s treating 8 9 Contrary to the ALJ’s reasoning, the purpose for which a medical 10 opinion is obtained “does not provide a legitimate basis for rejecting 11 it.” 12 Circuit expressly has stated that the Administration “may not assume 13 that doctors routinely lie in order to help their patients collect 14 disability benefits.” 15 quotations omitted). 16 that doctors routinely lie in order to help their patients enhance 17 worker’s compensation recoveries. 18 2016 WL 67677, at *7 (E.D. Cal. Jan. 5, 2016) (“the ALJ may not 19 disregard a physician’s medical opinion simply because it was 20 initially elicited in a state workers’ compensation proceeding 21 . . .”) (citations and quotations omitted); Casillas v. Colvin, 2015 22 WL 6553414, at *3 (C.D. Cal. Oct. 29, 2015) (same); Franco v. Astrue, 23 2012 WL 3638609, at *10 (C.D. Cal. Aug. 23, 2012) (same). Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998). The Ninth Lester v. Chater, 81 F.3d at 832 (citations and Neither may the Administration properly assume See id.; see also Nash v. Colvin, 24 25 An ALJ sometimes must translate worker’s compensation terminology 26 into social security parlance. In the present case, however, 27 Defendant does not and properly cannot dispute that Doctors Helm and 28 Waldman clearly opined that Plaintiff’s impairments restricted him to 7 1 a functional capacity that would qualify for social security 2 disability benefits. 3 4 Second, the ALJ purported to rely on the allegedly “conservative” 5 nature of the treatment Doctors Helm and Waldman prescribed for 6 Plaintiff (A.R. 20-21). 7 these physicians truly had believed Plaintiff’s impairments were as 8 debilitating as the physicians opined, the physicians would have 9 prescribed more aggressive treatments for Plaintiff. The ALJ appears to have reasoned that, if Such reasoning 10 lacks substantial supporting evidence in the present record. 11 Plaintiff’s treatment included repeated epidural injections, and Dr. 12 Waldman recommended surgery as Plaintiff’s only remaining treatment 13 option (A.R. 207, 223, 293-94, 345-347, 412, 416, 439, 443). 14 injections are not necessarily “conservative” treatment. 15 Salinas v. Astrue, 2012 WL 1400362, at *4 (C.D. Cal. Apr. 23, 2012); 16 Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011). 17 “Surgery is not conservative treatment.” 18 1319667, at *4 (C.D. Cal. March 29, 2013). 19 evidence in the record to support the ALJ’s apparent belief that the 20 prescribed treatments were “routine or conservative” in the sense of 21 being less aggressive than other viable, available treatments. Epidural See, e.g., Sanchez v. Colvin, 2013 WL There is no substantial 22 23 Defendant attempts to justify the ALJ’s rejection of the treating 24 physicians’ opinions by contrasting those opinions with the opinions 25 of Dr. Henry Bruce, a consultative examiner, and the opinions of the 26 state agency physicians. 27 physician’s opinion by another physician’s opinion triggers rather 28 than satisfies the requirement of stating “specific, legitimate However, the contradiction of a treating 8 1 reasons.” See, e.g., Valentine v. Commissioner, 574 F.3d 685, 692 2 (9th Cir. 2007); Orn v. Astrue, 495 F.3d at 631-33; Lester v. Chater, 3 81 F.3d at 830-31. 4 5 Defendant argues that a treating physician’s opinion regarding 6 disability need not be given “any special significance” because the 7 issue of disability is “reserved to the Commissioner.” 8 of this reservation provides no specific or legitimate explanation 9 regarding why the ALJ rejected the opinions of the treating Acknowledgment 10 physicians. Even though the issue of disability is “reserved to the 11 Commissioner,” the ALJ still must set forth specific, legitimate 12 reasons for rejecting a treating physician’s opinion that a claimant 13 is disabled. 14 draw a distinction between a medical opinion as to a physical 15 condition and a medical opinion on the ultimate issue of 16 disability.”); see also Social Security Ruling 96-5p (“adjudicators 17 must always carefully consider medical source opinions about any 18 issue, including opinions about issues that are reserved to the 19 Commissioner”). See Rodriguez v. Bowen, 876 F.2d at 762 n.7 (“We do not 20 21 II. The ALJ Also Erred in the Evaluation of the Vocational Evidence. 22 23 “[T]he best source for how a job is generally performed is 24 usually the Dictionary of Occupational Titles.” Pinto v. Massanari, 25 249 F.3d 840, 845 (9th Cir. 2001). 26 unclear, the DOT appears to provide that a person incapable of 27 overhead reaching cannot perform the jobs of Cashier II and 28 Information Clerk. Although the matter is somewhat As previously indicated, the DOT provides that the 9 1 jobs of Cashier II and Information Clerk require frequent “reaching.” 2 “Reaching” means “extending the hands and arms in any direction.” 3 85-15 (emphasis added); see Mkhitaryan v. Astrue, 2010 WL 1752162, at 4 *3 (C.D. Cal. April 27, 2010) (citing the “Selected Characteristics of 5 Occupations Defined in the Revised Dictionary of Occupational Titles,” 6 Appendix C). 7 id. 8 requirement of frequent reaching and a preclusion or restriction on 9 reaching overhead or above the shoulder. “Any direction” would appear to include overhead. SSR See Consequently, many courts have discerned a conflict between the See, e.g., Hernandez v. 10 Colvin, 2016 WL 2350091, at *3 (C.D. Cal. May 4, 2016); Nelson v. 11 Colvin, 2016 WL 1532226, at *4 (C.D. Cal. April 14, 2016); Cameron v. 12 Colvin, 2016 WL 1367709, at *6-7 (C.D. Cal. April 6, 2016); 13 Bochat v. Colvin, 2016 WL 1125549, at *2 (C.D. Cal. March 22, 2016); 14 Hernandez v. Colvin, 2016 WL 1071565, at *5 (C.D. Cal. March 14, 15 2016); Imran v. Colvin, 2015 WL 5708500, at *5 (C.D. Cal. Sept. 28, 16 2015); Carpenter v. Colvin, 2014 WL 4795037, at *7-8 (E.D. Cal. 17 Sept. 25, 2014); Skelton v. Commissioner, 2014 WL 4162536, at *13 (D. 18 Or. Aug. 18, 2014); Lamb v. Colvin, 2014 WL 3894919, at *5-6 (E.D. 19 Cal. Aug. 4, 2014); Riffner v. Colvin, 2014 WL 3737963, at *4-5 (C.D. 20 Cal. July 29, 2014); Nguyen v. Colvin, 2014 WL 2207058, at *2-3 (C.D. 21 Cal. May 28, 2014); Barnes v. Colvin, 2014 WL 931123, at *7-8 (W.D. 22 Wash. March 10, 2014); Giles v. Colvin, 2013 WL 4832723, at *4 (C.D. 23 Cal. Sept. 10, 2013); Winder v. Astrue, 2013 WL 489611, at *2-3 (C.D. 24 Cal. Feb. 6, 2013); Duff v. Astrue, 2012 WL 3711079, at *3-4 (C.D. 25 Cal. Aug. 28, 2012); McQuone v. Astrue, 2012 WL 3704795, at *3-4 (E.D. 26 Cal. Aug. 24, 2012); Newman v. Astrue, 2012 WL 1884892, at *5 (C.D. 27 Cal. May 23, 2012); Richardson v. Astrue, 2012 WL 1425130, at *4-5 28 (C.D. Cal. April 25, 2012); Bentley v. Astrue, 2011 WL 2785023, at *310 1 4 (C.D. Cal. July 14, 2011); Hernandez v. Astrue, 2011 WL 223595, at 2 *5 (C.D. Cal. Jan. 21, 2011); Mkhitaryan v. Astrue, 2010 WL 1752162, 3 at *3; Caruso v. Astrue, 2008 WL 1995119, at *7 (N.D. N.Y. May 6, 4 2008); see also Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir. 5 2006) (“It is not clear to us whether the DOT’s requirements include 6 reaching above shoulder level and this is exactly the sort of 7 inconsistency the ALJ should have resolved with the expert’s help”).5 8 9 Although an ALJ sometimes properly may rely on vocational expert 10 testimony in conflict with the information in the DOT, social security 11 rulings and case law require recognition of the conflict and an 12 explanation for the reliance. 13 14 Social Security Ruling 00-4p provides: 15 16 When a [vocational expert] provides evidence about the 17 requirements of a job or occupation, the [ALJ] has an 18 affirmative responsibility to ask about any possible 19 5 20 21 22 23 24 25 26 27 28 Case law on this issue is not uniform. Several district courts have discerned no conflict between the requirement of frequent reaching and a preclusion or restriction on reaching overhead or above the shoulder. See Spooner v. Colvin, 2016 WL 3947103, at *6 (D. Ariz. July 22, 2016); Parker v. Colvin, 2014 WL 4662095, at *9 (W.D. Pa. Sept. 18, 2014); King v. Commissioner, 2013 WL 3456957, at *3 (E.D. Mich. July 9, 2013); Brister v. Colvin, 2013 WL 2318842, at *11-13 (D. Or. May 27, 2013); Alarcon v. Astrue, 2013 WL 1315968, at *4 (S.D. Cal. March 28, 2013); Lidster v. Astrue, 2012 WL 13731, at *3 (S.D. Cal. Jan. 3, 2012); Provenzano v. Astrue, 2009 WL 4906679, at *5 (C.D. Cal. Dec. 17, 2009); Fuller v. Astrue, 2009 WL 4980273, at *2 (C.D. Cal. Dec. 15, 2009); Rodriguez v. Astrue, 2008 WL 2561961, at *2 (C.D. Cal. June 25, 2008); see also Gutierrez v. Colvin, 2016 WL 4056067, at *1 (9th Cir. July 29, 2016) (unpublished). 11 1 conflict between that [vocational expert] evidence and 2 information provided in the DOT. . . .6 3 4 If the [vocational expert’s] evidence appears to 5 conflict with the DOT, the [ALJ] will obtain a reasonable 6 explanation for the apparent conflict. 7 8 9 When vocational evidence provided by a [vocational expert] is not consistent with information in the DOT, the 10 [ALJ] must resolve this conflict before relying on the 11 [vocational expert] evidence to support a determination or 12 decision that the individual is or is not disabled. 13 [ALJ] will explain in the determination or decision how he 14 or she resolved the conflict. 15 the resolution of the conflict irrespective of how the 16 conflict was identified (emphasis added). The The adjudicator must explain 17 18 Elsewhere, SSR 00-4p similarly provides that “[w]hen there is an 19 apparent unresolved conflict between [vocational expert] evidence and 20 the DOT, the [ALJ] must elicit a reasonable explanation for the 21 conflict before relying on the [vocational expert] evidence to support 22 a determination or decision about whether the claimant is disabled.” 23 (emphasis added). 24 that the record is clear as to why an ALJ relied on a vocational “The procedural requirements of SSR 00-4p ensure 25 26 27 28 6 For this purpose, the “information provided in the DOT” includes the information provided in the DOT’s “companion publication,” the “Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO).” See SSR 00-4p. 12 1 expert’s testimony, particularly in cases where the expert’s testimony 2 conflicts with the [DOT].” 3 (9th Cir. 2007). Massachi v. Astrue, 486 F.3d 1149, 1153 4 5 In the present case, the ALJ asked whether the vocational 6 expert’s testimony was consistent with the DOT, and the vocational 7 expert acknowledged and explained certain inconsistencies. 8 neither the vocational expert nor the ALJ recognized the possible 9 conflict between the vocational expert’s testimony and the DOT’s However, 10 reaching requirements. Consequently, neither the vocational expert 11 nor the ALJ provided any explanation that might support preferring the 12 vocational expert’s testimony over the arguably conflicting 13 information in the DOT. 14 Social Security Administration, 119 F.3d 789, 794 (9th Cir. 1997) 15 (error that “[n]either the ALJ nor the vocational expert explained the 16 reason for departing from the DOT”); Johnson v. Shalala, 60 F.3d 1428, 17 1435 (9th Cir. 1995) (“an ALJ may rely on expert testimony which 18 contradicts the DOT, but only insofar as the record contains 19 persuasive evidence to support the deviation”). This was error. See SSR 00-4p; Light v. 20 21 22 III. The Court is Unable to Deem the Errors Harmless; Remand is Appropriate. 23 24 The Court is unable to deem the errors in the present case to 25 have been harmless. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th 26 Cir. 2015) (even though the district court had stated “persuasive 27 reasons” why the ALJ’s failure to mention the treating physician’s 28 opinion was harmless, the Ninth Circuit remanded because “we cannot 13 1 ‘confidently conclude’ that the error was harmless”); Treichler v. 2 Commissioner, 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where, as in this 3 case, an ALJ makes a legal error, but the record is uncertain and 4 ambiguous, the proper approach is to remand the case to the agency”); 5 see also Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (an 6 error “is harmless where it is inconsequential to the ultimate non- 7 disability determination”) (citations and quotations omitted); McLeod 8 v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error not harmless where 9 “the reviewing court can determine from the ‘circumstances of the 10 case’ that further administrative review is needed to determine 11 whether there was prejudice from the error”). 12 13 Remand is appropriate because the circumstances of this case 14 suggest that further administrative review could remedy the errors 15 discussed herein. 16 Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 17 determination, the proper course is remand for additional agency 18 investigation or explanation, except in rare circumstances); Dominguez 19 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district 20 court concludes that further administrative proceedings would serve no 21 useful purpose, it may not remand with a direction to provide 22 benefits”); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand 23 for further administrative proceedings is the proper remedy “in all 24 but the rarest cases”); Garrison v. Colvin, 759 F.3d 995, 1020 (9th 25 Cir. 2014) (court will credit-as-true medical opinion evidence only 26 where, inter alia, “the record has been fully developed and further 27 administrative proceedings would serve no useful purpose”); Harman v. 28 Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 McLeod v. Astrue, 640 F.3d at 888; see also INS v. 14 1 (2000) (remand for further proceedings rather than for the immediate 2 payment of benefits is appropriate where there are “sufficient 3 unanswered questions in the record”). 4 unanswered questions in the present record. 5 F.3d at 1173 (remanding for further administrative proceedings to 6 allow the ALJ to “comment on” the treating physician’s opinion). 7 Moreover, it is not clear that the ALJ would be required to find 8 Plaintiff disabled for the entire claimed period of disability even if 9 the treating physicians’ opinions were fully credited. 10 There remain significant See Marsh v. Colvin, 792 See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010). 11 12 CONCLUSION 13 14 For all of the foregoing reasons,7 Plaintiff’s and Defendant’s 15 motions for summary judgment are denied and this matter is remanded 16 for further administrative action consistent with this Opinion. 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 DATED: August 17, 2016. 21 22 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 7 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. 15

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