Anamaria Lizarraga v. Nancy A. Berryhill, No. 5:2016cv06561 - Document 15 (N.D. Cal. 2018)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART 12 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING 14 DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT; REVERSING THE DENIAL OF BENEFITS; AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS. Signed by Judge Beth Labson Freeman on 2/12/2018. (blflc1S, COURT STAFF) (Filed on 2/12/2018)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 9 ANAMARIA LIZARRAGA, Plaintiff, 10 14 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT; REVERSING THE DENIAL OF BENEFITS; AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS 15 [Re: ECF 12, 14] 11 United States District Court Northern District of California Case No. 16-cv-06561-BLF 12 13 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 Plaintiff Anamaria Lizarraga, proceeding through counsel, appeals a final decision of 19 Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, denying her application 20 for a period of disability and disability insurance benefits under Title II of the Social Security Act. 21 Before the Court are Plaintiff’s motion for summary judgment (ECF 12) and Defendant’s cross- 22 motion for summary judgment (ECF 14). Plaintiff did not file a reply brief within the time 23 provided in the procedural order issued by the Court (ECF 3). The matter was submitted without 24 oral argument pursuant to Civil Local Rule 16-5. 25 For the reasons discussed below, the Court GRANTS IN PART AND DENIES IN PART 26 Plaintiff’s motion; DENIES Defendant’s cross-motion; REVERSES the denial of benefits; and 27 REMANDS for further administrative proceedings. 28 I. 1 BACKGROUND Plaintiff was born on November 15, 1963, graduated from high school, and completed 2 3 college courses. Admin. Record (“AR”) 42. She is married and has no dependent children. Id. 4 She has past relevant work as a Case Aide and an ESL Teacher.1 AR 69. Plaintiff filed a claim for disability insurance benefits on December 27, 2012, alleging 5 6 disability beginning May 1, 2011. AR 166-72, 181. She claims several impairments, including a 7 history of recurrent strokes, symptoms associated with migraine headaches, piriformis syndrome, 8 myofascial pain syndrome, fibromyalgia syndrome, asthma, and a depressive disorder. AR 15. 9 Plaintiff’s application was denied initially and upon reconsideration. AR 89, 106. She requested and received a hearing before an administrative law judge (“ALJ”), which was held on 11 United States District Court Northern District of California 10 December 9, 2014. AR 13. The ALJ heard testimony from three individuals: Plaintiff; Irvin 12 Belzer, M.D., a medical expert; and Thomas Dachelet, a vocational expert (“VE”). Id. The ALJ 13 issued a written decision on March 19, 2015, finding that Plaintiff was not disabled and therefore 14 was not entitled to benefits. AR 13-27. The Appeals Council affirmed the ALJ’s decision, 15 making it the final decision of the Commissioner. AR 1-7. Plaintiff filed this action on November 16 11, 2016. II. 17 LEGAL STANDARD 18 A. Standard of Review 19 Pursuant to sentence four of 42 U.S.C. § 405(g), district courts “have power to enter, upon 20 the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the 21 decision of the Commissioner of Social Security, with or without remanding the cause for a 22 rehearing.” 42 USC § 405(g). However, “a federal court’s review of Social Security 23 determinations is quite limited.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). 24 Federal courts “‘leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and 25 resolve ambiguities in the record.’” Id. (quoting Treichler v. Comm’r of Soc. Sec. Admin., 775 26 27 28 1 Plaintiff claimed past relevant work as a “social worker,” AR 42, but because she was not certified, the vocational expert who testified at the administrative hearing classified that position as a “case aide,” AR 68-69. 2 1 F.3d 1090, 1098 (9th Cir. 2014)). A court “will disturb the Commissioner’s decision to deny benefits only if it is not 2 3 supported by substantial evidence or is based on legal error.” Brown-Hunter, 806 F.3d at 492 4 (internal quotation marks and citation omitted). “Substantial evidence is such relevant evidence as 5 a reasonable mind might accept as adequate to support a conclusion, and must be more than a 6 mere scintilla, but may be less than a preponderance.” Rounds v. Comm’r of Soc. Sec. Admin., 7 807 F.3d 996, 1002 (9th Cir. 2015) (internal quotation marks and citations omitted). A court 8 “must consider the evidence as a whole, weighing both the evidence that supports and the 9 evidence that detracts from the Commissioner’s conclusion.” Id. (internal quotation marks and citation omitted). If the evidence is susceptible to more than one rational interpretation, the ALJ’s 11 United States District Court Northern District of California 10 findings must be upheld if supported by reasonable inferences drawn from the record. Id. 12 Finally, even when the ALJ commits legal error, the ALJ’s decision will be upheld so long 13 as the error is harmless. Brown-Hunter, 806 F.3d at 492. However, “[a] reviewing court may not 14 make independent findings based on the evidence before the ALJ to conclude that the ALJ’s error 15 was harmless.” Id. The court is “constrained to review the reasons the ALJ asserts.” Id. 16 B. Standard for Determining Disability 17 “To determine whether a claimant is disabled, an ALJ is required to employ a five-step 18 sequential analysis, determining: (1) whether the claimant is doing substantial gainful activity; 19 (2) whether the claimant has a severe medically determinable physical or mental impairment or 20 combination of impairments that has lasted for more than 12 months; (3) whether the impairment 21 meets or equals one of the listings in the regulations; (4) whether, given the claimant’s residual 22 functional capacity, the claimant can still do his or her past relevant work; and (5) whether the 23 claimant can make an adjustment to other work.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th 24 Cir. 2014) (internal quotation marks and citations omitted). The residual functional capacity 25 (“RFC”) referenced at step four is what a claimant can still do despite his or her limitations. Id. at 26 1160 n.5. “The burden of proof is on the claimant at steps one through four, but shifts to the 27 Commissioner at step five.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 28 2009). 3 1 2 III. DISCUSSION At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity from her alleged onset date, May 1, 2011, through her date last insured, September 30, 4 2014. AR 15. At step two, the ALJ found that Plaintiff had the following severe impairments 5 through her date last insured: “history of recurrent strokes; possible ischemic neurological deficits 6 or paralysis associated with migraine headaches; piriformis syndrome; myofascial pain syndrome; 7 and asthma.” Id. However, the ALJ found that Plaintiff’s claimed fibromyalgia syndrome was 8 not medically determinable based on the evidence in the record. AR 17-18. The ALJ also found 9 that Plaintiff’s medically determinable depressive disorder was non-severe. AR 15. At step three, 10 the ALJ concluded that Plaintiff’s impairments did not meet or medically equal the severity of one 11 United States District Court Northern District of California 3 of the listed impairments in the regulations. AR 18-19. 12 Prior to making a step four determination, the ALJ found that Plaintiff had the RFC to 13 perform a reduced range of light work. AR 19. Light work is defined in the regulations as 14 follows: 15 16 17 18 19 20 21 Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. § 404.1567(b). The ALJ found that Plaintiff can perform these activities with the following limitations: 22 she can sit for 6 to 8 hours per day but she needs breaks every 2 hours for 1 to 3 minutes; she can 23 stand or walk up to 4 hours per 8-hour workday, but only for 1 hour at a time; she can perform 24 manipulative activities (reaching, handling, fingering, pushing, pulling) only occasionally; she can 25 use foot controls only occasionally; she can climb stairs or ramps, stoop, kneel, crouch, or crawl 26 only occasionally; she cannot climb ladders or scaffolds; she should not be around unprotected 27 heights or moving mechanical parts; she can drive a motor vehicle only occasionally; and she 28 should be exposed only occasionally to humidity, wetness, extreme cold or heat, vibrations, or 4 1 respiratory irritants. AR 19-22. In determining this RFC, the ALJ discounted Plaintiff’s claims 2 that she suffers from fibromyalgia syndrome and that her depression constitutes a severe mental 3 impairment. AR 23-24. 4 Based on the above RFC and the testimony of the VE, the ALJ found at step four that 5 Plaintiff was capable of performing her past relevant work as a Case Aide and ESL Teacher. AR 6 25-26. The ALJ made an alternative step five determination that Plaintiff could perform other jobs 7 that exist in the national economy. Id. The ALJ therefore found that Plaintiff was not disabled 8 from her alleged onset date through her date last insured. AR 26-27. 9 Plaintiff asserts that the ALJ’s decision is legally insufficient because: (a) the ALJ’s determination that Plaintiff is limited to walking and standing for 4 hours a day is inconsistent 11 United States District Court Northern District of California 10 with the determination that Plaintiff can perform light work activity; (b) all of the relevant medical 12 opinions support Plaintiff’s claim of severe mental impairment and the ALJ’s rejection of those 13 opinions is not supported by substantial evidence in the record; (c) the ALJ erred in failing to 14 consider the effect of Plaintiff’s mental impairment on her ability to work; (d) the ALJ erred in 15 finding that Plaintiff’s claimed fibromyalgia syndrome was not medically determinable; and 16 (e) the ALJ failed to develop the record fully as to Plaintiff’s claim that she suffers from 17 fibromyalgia syndrome. The Court addresses those arguments in turn. 18 A. RFC Determination 19 As discussed above, the ALJ determined that Plaintiff retains the RFC to perform a 20 reduced range of light work, imposing among others a limitation that Plaintiff can stand or walk 21 up to 4 hours per 8-hour workday for at most 1 hour at a time. AR 19. Plaintiff asserts that the 4- 22 hour stand/walk limitation is incompatible with an RFC of light work, because “the full range of 23 light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8- 24 hour workday.” Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *6. “Consequently,” 25 Plaintiff argues, “the ALJ made an error of law by finding an RFC of light work when she 26 concurrently limited Claimant to walking and standing for 4 hours in an 8-hour day.” Pl.’s MSJ at 27 5, ECF 12. 28 In response, Defendant cites numerous cases affirming decisions in which the ALJ found 5 the claimant capable of a reduced range of light work. See Def.’s XMSJ at 5, ECF 14 (collecting 2 cases). For example, in Avilez v. Colvin, No. EDCV 14-0732-JPR, 2015 WL 1966916, at *6 (C.D. 3 Cal. Apr. 30, 2015), the ALJ determined that Avilez had the RFC to perform a limited range of 4 light work, those limitations including a restriction that Avilez could stand or walk only 2 hours in 5 an 8-hour workday. Relying on SSR 83-10, Avilez argued to the district court that “because light 6 work in most cases requires approximately six hours of standing or walking,” the ALJ had 7 violated “agency policy” by assigning an RFC of light work while simultaneously restricting 8 standing and walking to 2 hours per day. Id. The district court rejected that argument, noting that 9 “[a]lthough most light work requires more standing and walking than the ALJ found Plaintiff able 10 to perform, some light-work positions require no more than two hours of standing and walking.” 11 United States District Court Northern District of California 1 Id. Similarly, in Jones v. Colvin, No. ED CV 13-722-SP, 2014 WL 657914, at *7 (C.D. Cal. Feb. 12 19, 2014), the district court concluded that a light work RFC with a 4-hour stand/walk limitation 13 did not conflict with SSR 83-10. The court observed that “the ALJ did not determine that plaintiff 14 could perform the full range of light work, but simply ‘a range of light work.’” Id. 15 Based on the cases cited by Defendant, and absent citation to contrary authority by 16 Plaintiff, this Court concludes that it is not per se legal error to determine that a claimant has the 17 RFC to perform a reduced range of light work which includes a 4 hour stand/walk limitation. 18 B. Determination that Mental Impairment is Non-Severe 19 At step two, the ALJ concluded that Plaintiff’s claimed mental impairment of depressive 20 disorder was non-severe. AR 15. Plaintiff argues that all of the relevant medical opinions support 21 her claim of severe mental impairment and the ALJ’s rejection of those opinions is not supported 22 by substantial evidence in the record. 23 The ALJ noted in her written decision that the file contained opinions from three mental 24 health professionals: Plaintiff’s treating psychiatrist, Frank Read, M.D., and two agency 25 consulting psychiatrists, Jay Flocks, M.D., and G.R. Ibarra, M.D. AR 16-17. Dr. Read completed 26 a Medical Source Statement Regarding A Mental Impairment on March 7, 2014, stating that he 27 began treating Plaintiff in August 2007 and last had treated her on February 28, 2014. AR 1015. 28 Dr. Read opined that Plaintiff had a substantial loss of the following abilities: “ability to make 6 1 judgments that are commensurate with the functions of unskilled work, i.e., simple work-related 2 decisions”; “ability to respond appropriately to supervision, co-workers and usual work 3 situations”; and “ability to deal with changes in a routine work setting.” Id. He also found that 4 Plaintiff was “Markedly Limited” in 12 of 20 activities, including: “ability to understand and 5 remember detailed instructions”; “ability to maintain attention and concentration for extended 6 periods”; “ability to perform activities within a schedule, maintain regular attendance and be 7 punctual within customary tolerances”; and “ability to get along with co-workers or peers without 8 unduly distracting them or exhibiting behavioral extremes.” AR 1016-17. Dr. Read estimated that 9 Plaintiff would miss 4 or more days of work per month as a result of her mental impairment. AR 1015. Finally, Dr. Read opined that Plaintiff’s global assessment of functioning (“GAF”) score 11 United States District Court Northern District of California 10 was 41-50, AR 1015, which the ALJ recognized indicated “Serious symptoms,” AR 17. Dr. Flocks and Dr. Ibarra found Plaintiff to suffer from “a moderate mood disorder with 12 13 depressive symptoms predominating,” and opined that she was limited to performing “simple 14 repetitive task[s] with adequate pace and persistence.” AR 85, 102. The ALJ summarized the 15 agency psychiatrists’ opinions as stating that Plaintiff suffered “from a severe depressive 16 disorder.” AR 17. The ALJ acknowledged that all three mental health professionals had found Plaintiff to 17 18 suffer from severe mental impairments. AR 17. However, the ALJ gave each of the three medical 19 opinions “little weight,” and instead concluded that “[t]he claimant’s medically determinable 20 mental impairment of depressive disorder did not cause more than minimal limitation in the 21 claimant’s ability to perform basic mental work activities and was therefore non-severe.” AR 15- 22 17. Id. 23 “To reject an uncontradicted opinion of a treating physician, the ALJ must provide clear 24 and convincing reasons that are supported by substantial evidence.” Ghanim, 763 F.3d at 1160-61 25 (internal quotation marks and citation omitted). With respect to Dr. Read’s opinion, the ALJ 26 stated that “[t]he problem with this opinion is that the GAF score given and the markedly limited 27 ratings are not supported by the treatment given by Dr. Read.” AR 17. The ALJ characterized Dr. 28 Read’s treatment as “limited to infrequent follow-up visits with Dr. Read and minimal use of anti7 1 depressant medications.” Id. The ALJ also stated that “objective evidence or even his own 2 treatment notes and treatment recommendations do not support the opinions of Dr. Read.” Id. 3 Finally, the ALJ stated her own opinion that “[i]f the claimant had truly had serious symptoms or 4 serious impairment in social, occupational, or school functioning, she would be institutionalized or 5 in some sort of intensive outpatient program to help her cope with these serious symptoms.” Id. 6 “A conflict between treatment notes and a treating provider’s opinions may constitute an adequate reason to discredit the opinions of a treating physician or another treating provider.” 8 Ghanim, 763 F.3d at 1161. However, the ALJ failed to identify substantial evidence of such a 9 conflict here. While the record includes treatment notes from Dr. Read only through November 10 2012, AR 271-322, Dr. Read’s medical source statement dated March 7, 2014 indicated that he 11 United States District Court Northern District of California 7 last had treated Plaintiff on February 28, 2014, AR 1015. Plaintiff testified at the administrative 12 hearing on December 9, 2014 that she was continuing to see Dr. Read in person every 3-5 months, 13 she spoke with him by telephone at least 1 time a month, and she emailed him for prescription 14 refills. AR 58-59. Plaintiff testified specifically that she had spoken with Dr. Read the week prior 15 to the administrative hearing. AR 59. The ALJ apparently disregarded both Dr. Read’s 16 representation of treatment through 2014 and Plaintiff’s testimony re same in concluding that Dr. 17 Read’s treatment was “limited to infrequent follow-up visits.” The ALJ’s reason for disregarding 18 this evidence is unclear, since the ALJ cited only to Dr. Read’s treatment notes when 19 characterizing the nature and frequency of Dr. Read’s treatment. Defendant has not cited, and this 20 Court has not discovered, any authority for the proposition that a “conflict” is created with respect 21 to otherwise consistent medical evidence simply because not all treatment notes are included in the 22 administrative record. 23 Moreover, although the ALJ cited Dr. Read’s minimal use of antidepressant medication as 24 a reason to disregard Dr. Read’s opinion regarding the severity of Plaintiff’s mental impairment, 25 the ALJ provided no basis for her underlying assumption that more antidepressant medication 26 would have been prescribed if Plaintiff indeed had a serious mental impairment. The ALJ 27 likewise provided no basis for her statement that if Plaintiff had a serious mental impairment, “she 28 would be institutionalized or in some sort of intensive outpatient program.” AR 17. “An ALJ 8 1 cannot substitute his own opinion for that of the medical experts by disregarding evidence in the 2 record.” Winkowitsch-Smith v. Barnhart, 113 F. App’x 765, 767 (9th Cir. 2004); see also Gomez 3 v. Colvin, No. 1:15-CV-00647-SKO, 2016 WL 3196770, at *17 (E.D. Cal. June 8, 2016) (ALJ 4 erred in rejecting multiple diagnoses of PTSD based on ALJ’s own opinion that an individual who 5 had never been in combat could not suffer from PTSD). “Sheer disbelief is no substitute for 6 substantial evidence.” Winkowitsch-Smith, 113 F. App’x at 767 (internal quotation marks and 7 citation omitted). 8 Finally, the ALJ’s general statement that Dr. Read’s opinion was unsupported by “objective evidence” or Dr. Read’s “treatment notes” is not sufficiently specific to constitute 10 substantial evidence to reject Dr. Read’s medical opinion. Similarly, the ALJ’s statement that 11 United States District Court Northern District of California 9 “objective medical evidence of record does not support” the two state agency psychiatrists’ 12 opinions does not constitute substantial evidence to reject those opinions. AR 17. Absent citation 13 to specific portions of the very lengthy administrative record, which totals more than 1200 pages, 14 the Court cannot discern what conflicts in the evidence the ALJ perceived. See Garrison v. 15 Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (“[A]n ALJ errs when he rejects a medical opinion 16 or assigns it little weight while . . . criticizing it with boilerplate language that fails to offer a 17 substantive basis for his conclusion.”). 18 Accordingly, the Court concludes that the ALJ erred by failing to credit the three 19 uncontradicted mental health opinions without providing clear and convincing reasons, supported 20 by substantial evidence, for doing so. The Court notes that Defendant’s brief contains numerous 21 citations to record evidence which Defendant contends supports the ALJ’s determination that 22 Plaintiff’s mental impairment was non-severe. See Def.’s XMSJ at 6-7, ECF 14. That evidence 23 may have provided an adequate basis for rejection of the mental health opinions had the ALJ 24 expressly cited and relied on it. However, the ALJ did not do so. As discussed above, “[a] 25 reviewing court may not make independent findings based on the evidence before the ALJ to 26 conclude that the ALJ’s error was harmless.” Brown-Hunter v. Colvin, 806 F.3d at 492. The 27 court is “constrained to review the reasons the ALJ asserts.” Id. 28 9 1 C. Failure to Consider Effect of Mental Impairment on Ability to Work 2 Plaintiff argues that even if her mental impairment properly was found to be non-severe, 3 the ALJ erred in failing to consider the effect of the mental impairment on Plaintiff’s ability to 4 work. The step two determination whether particular impairments are “severe” or “non-severe” is 5 “not meant to identify the impairments that should be taken into account when determining the 6 RFC.” Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). When determining a claimant’s 7 RFC, the ALJ “must consider limitations and restrictions imposed by all of an individual’s 8 impairments, even those that are not ‘severe.’” Id. at 1049 (internal quotation marks and citation 9 omitted). “The RFC therefore should be exactly the same regardless of whether certain 10 United States District Court Northern District of California 11 impairments are considered ‘severe’ or not.” Id. The ALJ did not include any limitations resulting from Plaintiff’s mental impairment in the 12 RFC determination. Given the Court’s conclusion that the ALJ improperly rejected the 13 uncontradicted mental health opinions that Plaintiff suffered from a severe mental impairment, the 14 ALJ’s failure to include any mental limitation in the RFC clearly was in error. 15 D. Determination that Fibromyalgia Syndrome not Medically Determinable 16 At step 2, the ALJ determined that Plaintiff’s claimed fibromyalgia syndrome was not 17 medically determinable based on the evidence in the record. AR 17-18. Plaintiff asserts that the 18 ALJ erred in making that determination because the ALJ failed to comply with SSR 99-2p. SSR 19 99-2p addresses the criteria for evaluating a claim of disability based on Chronic Fatigue 20 Syndrome (“CFS”). See SSR 99-2p, 1999 WL 271569. As Defendant points out, SSR 12-2p, 21 which became effective on July 25, 2012, “provides guidance on how we develop evidence to 22 establish that a person has a medically determinable impairment (MDI) of fibromyalgia (FM), and 23 how we evaluate FM in disability claims and continuing disability reviews under titles II and XVI 24 of the Social Security Act (Act).” SSR 12-2p, 2012 WL 3104869, at *1. The ALJ expressly 25 applied the criteria set forth in SSR 12-2p when concluding that Plaintiff’s alleged fibromyalgia 26 syndrome is not medically determinable. AR 18. Plaintiff’s claim that the ALJ failed to comply 27 with SSR 99-2p, which is not applicable here, is insufficient to establish legal error by the ALJ. 28 10 1 E. Failure to Develop the Record re Fibromyalgia Syndrome 2 Finally, Plaintiff argues that the ALJ failed to develop the record with respect to Plaintiff’s 3 claim of fibromyalgia syndrome. The ALJ noted that under SSR 12-2p, a claimant’s evidence 4 must satisfy one of two alternative sets of diagnostic criteria to establish a medically determinable 5 impairment of fibromyalgia syndrome. AR 17-18. The ALJ concluded that the first set of criteria 6 was not met because it required at least 11 positive tender points on physical examination and 7 there was no notation regarding tender points on the questionnaire submitted by Plaintiff’s 8 physician, Dr. Nguyen. Id. The ALJ concluded that the second set of criteria was not met because 9 it required that other disorders be excluded, and Plaintiff had not presented evidence excluding other disorders. Id. Plaintiff argues that the ALJ should have developed the record as to whether 11 United States District Court Northern District of California 10 Plaintiff did or did not have tender points sufficient to satisfy the first set of criteria. 12 “The ALJ in a social security case has an independent duty to fully and fairly develop the 13 record and to assure that the claimant’s interests are considered.” Tonapetyan v. Halter, 242 F.3d 14 1144, 1150 (9th Cir. 2001) (internal quotation marks and citation omitted). “This duty extends to 15 the represented as well as to the unrepresented claimant.” Id. However, it is the claimant’s duty 16 to prove disability. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). “An ALJ’s duty to 17 develop the record further is triggered only when there is ambiguous evidence or when the record 18 is inadequate to allow for proper evaluation of the evidence.” Id. 19 Dr. Nguyen clearly did not base the diagnosis of fibromyalgia syndrome on the presence of 20 tender points, as Dr. Nguyen did not check the box for that symptom on the questionnaire 21 submitted for administrative review. AR 1241. Dr. Nguyen checked the boxes for 13 other 22 symptoms in support of the fibromyalgia diagnosis. Id. Accordingly, this is not a case in which 23 the evidence was ambiguous or the record was inadequate to allow for evaluation of the evidence. 24 There simply was a failure of proof on Plaintiff’s part with respect to the claimed impairment of 25 fibromyalgia. Plaintiff’s failure of proof was not sufficient to trigger the ALJ’s duty to develop 26 the record. See Cole v. Colvin, No. 6:15-CV-01044-PA, 2016 WL 4154934, at *7 (D. Or. Aug. 2, 27 2016) (“Plaintiff’s failure to carry her burden of proof, however, does not equate with an 28 ambiguity or inadequacy in the record.”). 11 1 F. Appropriate Remedy 2 As discussed above, the ALJ erred in rejecting the mental health opinions of severe mental 3 impairment without providing clear and convincing reasons for doing so, supported by substantial 4 evidence in the record. The Court must decide whether that error was harmless and, if not, the 5 appropriate remedy. “An error is harmless only if it is inconsequential to the ultimate 6 nondisability determination, or if despite the legal error, the agency’s path may reasonably be 7 discerned.” Brown-Hunter, 806 F.3d at 494 (internal quotation marks and citations omitted). 8 Here, the error was not harmless, because it went to key evidence regarding Plaintiff’s claimed 9 mental impairment. Moreover, the Court cannot discern the agency’s path absent appropriate consideration of all relevant evidence of record. The Court therefore must determine the 11 United States District Court Northern District of California 10 appropriate remedy. 12 Plaintiff requests that the case be remanded to the Commissioner for an immediate award 13 of benefits. A remand for an immediate award of benefits may be appropriate in the “rare 14 circumstances” in which the following three requirements are met: (1) “the ALJ has failed to 15 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical 16 opinion”; (2) “the record has been fully developed and further administrative proceedings would 17 serve no useful purpose”; and (3) “if the improperly discredited evidence were credited as true, the 18 ALJ would be required to find the claimant disabled on remand.” Id. at 495 (internal quotation 19 marks and citation omitted). Even if all three requirements are satisfied, the Court “retain[s] 20 flexibility in determining the appropriate remedy.” Id. (internal quotation marks and citation 21 omitted). The Court “may remand on an open record for further proceedings when the record as a 22 whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of 23 the Social Security Act.” Id. (internal quotation marks and citation omitted). 24 The Court concludes that a remand for further proceedings is appropriate here. The first 25 factor clearly is met, as the ALJ failed to provide legally sufficient reasons for failing to credit the 26 mental health opinions of severe mental impairment. However, the second and third factors are 27 not met, as the record has not been fully developed and it is unclear whether crediting the mental 28 health opinions would require a finding of disability. The ALJ relied on the VE’s testimony to 12 1 conclude that Plaintiff can perform her past relevant work and other work in the national economy. 2 AR 67-71. However, the VE’s opinion was based on an RFC which did not include limitations 3 arising from Plaintiff’s mental impairment. Id. Plaintiff’s counsel did ask the VE whether his 4 opinion of Plaintiff’s employability would be affected if, in addition to the physical limitations 5 encompassed by the RFC, there were also mental limitations. AR 71-72. Counsel gave some 6 hypothetical limitations drawn from Dr. Read’s opinion, including inability to complete a normal 7 workday, inability to perform at a consistent pace without an unreasonable number or length of 8 rest periods, and absences from work of four or more days per month. Id. The VE stated that the 9 presence of such limitations would affect Plaintiff’s employability. AR 72. However, he did not state precisely how employability would be affected. Id. Consequently, it is not clear from the 11 United States District Court Northern District of California 10 record whether inclusion of mental limitations in Plaintiff’s RFC would result in a determination 12 that Plaintiff cannot perform her past relevant work or other work in the national economy. 13 Accordingly, the Court will grant in part and deny in part Plaintiff’s motion for summary 14 judgment and will deny Defendant’s cross-motion for summary judgment. Pursuant to sentence 15 four of 42 U.S.C. § 405(g), the Court will reverse the denial of benefits and remand for further 16 administrative proceedings consistent with this order. 42 U.S.C. § 405(g) (sentence four) (“The 17 court shall have power to enter, upon the pleadings and transcript of the record, a judgment 18 affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or 19 without remanding the cause for a rehearing.”). 20 21 IV. ORDER (1) Plaintiff’s motion for summary judgment is GRANTED IN PART AND DENIED IN PART; 22 23 (2) Defendant’s motion for summary judgment is DENIED; 24 (3) The denial of benefits is REVERSED; and 25 (4) The matter is REMANDED to the Commissioner for proceedings consistent with 26 27 28 this order. Dated: February 12, 2018 ______________________________________ BETH LABSON FREEMAN United States District Judge 13