Budge v. Saul, No. 2:2019cv01804 - Document 21 (D. Nev. 2020)
Court Description: ORDER Granting 17 Motion to Remand to Social Security and Denying 18 Countermotion to Affirm the Agency Decision. The Clerk is instructed to enter judgment and close this case. Signed by Magistrate Judge Nancy J. Koppe on 9/23/2020. (Copies have been distributed pursuant to the NEF - DRS)
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Budge v. Saul Doc. 21 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Case No.: 2:19-cv-01804-NJK SYDNEY BUDGE, 5 Plaintiff(s), 6 v. 7 ANDREW SAUL, 8 9 ORDER Defendant(s). This case involves judicial review of administrative action by the Commissioner of Social 10 Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits under 11 Title XVI of the Social Security Act. Pending before the Court is Plaintiff’s motion for reversal 12 and/or remand. Docket No. 17. The Commissioner filed a response in opposition and a 13 countermotion to affirm. Docket Nos. 18, 19. Plaintiff filed a reply. Docket No. 20. The Court 14 has reviewed the parties’ pleadings and the administrative record 1 filed by the Commissioner. 15 Docket No. 16. For the following reasons, the Court finds that the Administrative Law Judge’s 16 (“ALJ”) decision contains legal error that is not harmless. Accordingly, the Court REVERSES 17 the Commissioner’s decision and REMANDS this case for further administrative proceedings. 18 I. LEGAL STANDARDS 19 A. Standard of Review 20 The Court’s review of administrative decisions in social security disability insurance 21 benefits cases is governed by 42 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 22 (9th Cir. 2002). Section 405(g) provides, “Any individual, after any final decision of the 23 Commissioner of Social Security made after a hearing to which he was a party, irrespective of the 24 amount in controversy, may obtain a review of such decision by a civil action . . . brought in the 25 district court of the United States for the judicial district in which the plaintiff resides.” 42 U.S.C. 26 § 405(g). The Court may enter, “upon the pleadings and transcript of the record, a judgment 27 28 1 “AR” denotes citations to the administrative record. 1 Dockets.Justia.com 1 affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or 2 without remanding the cause for a rehearing.” Id. 3 In reviewing the Commissioner’s decision, the Court “must consider the [administrative] 4 record as a whole, ‘weighing both evidence that supports and evidence that detracts’ from the 5 Commissioner’s conclusion.” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) 6 (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). The Court “may set aside a denial 7 of benefits only if it is not supported by substantial evidence or if it is based on legal error.” 8 Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). “Substantial evidence means more than 9 a scintilla but less than a preponderance.” Id. Put differently, “Substantial evidence is relevant 10 evidence which, considering the [administrative] record as a whole, a reasonable person might 11 accept as adequate to support a conclusion.” Flaten v. Sec’y of Health & Human Servs., 44 F.3d 12 1453, 1457 (9th Cir. 1995). 13 The Court’s “review of an ALJ’s fact-finding for substantial evidence is deferential, and 14 ‘[t]he threshold for such evidentiary sufficiency is not high.’” Ford v. Saul, 950 F.3d 1141, 1159 15 (9th Cir. 2020) (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)). Indeed, “Where the 16 evidence is susceptible to more than one rational interpretation, one of which supports the ALJ’s 17 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 18 2002). To ensure that the Court does not speculate as to the basis of factual findings when 19 determining whether substantial evidence supports the Commissioner’s decision, the ALJ must 20 make specific factual findings. See Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (“The 21 failure of ALJs to make specific findings in disability cases is among the principle causes of delay 22 and uncertainty in this area of the law.”). Thus, the ALJ’s findings should be as comprehensive 23 and analytical as feasible and, where appropriate, should include a statement of subordinate factual 24 foundations on which the ultimate factual conclusions are based. See, e.g., Gonzalez v. Sullivan, 25 914 F.2d 1197, 1200 (9th Cir. 1990). 26 B. Disability Evaluation Process 27 A social security disability claimant bears the initial burden of proving disability. Roberts 28 v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, the claimant must demonstrate 2 1 the “inability to engage in any substantial gainful activity by reason of any medically determinable 2 physical or mental impairment which can be expected . . . to last for a continuous period of not 3 less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Once the claimant establishes an inability to 4 perform her prior work, the burden shifts to the Commissioner to show that the claimant can 5 perform other substantial gainful work that exists in the national economy. Reddick v. Chater, 157 6 F.3d 715, 721 (9th Cir. 1998). 7 The ALJ follows a five-step sequential evaluation process in determining whether the 8 claimant is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (citing 20 C.F.R. §§ 404.1520, 9 416.920). If at any step the ALJ makes a finding of disability or non-disability, a determination 10 will be made, and no further evaluation is required. 20 C.F.R. § 416.920(a)(4). The first step 11 requires the ALJ to determine whether the claimant is currently engaging in substantial gainful 12 activity (“SGA”). 20 C.F.R. § 416.920(a)(4)(i). SGA is defined as work activity that is both 13 substantial and gainful; it involves doing significant physical or mental activities usually for pay 14 or profit. 20 C.F.R. § 416.972(a)-(b). If the claimant is currently engaging in SGA, then a finding 15 of not disabled is made. 20 C.F.R. § 416.920(b). If the claimant is not engaging in SGA, then the 16 analysis proceeds to the second step. See 20 C.F.R. § 416.920(a)(4). 17 The second step addresses whether the claimant has a “severe” medically determinable 18 impairment or combination of impairments that significantly limit her from performing basic work 19 activities. 20 C.F.R. § 416.920(a)(4)(ii). An impairment or combination of impairments is not 20 severe when medical and other evidence establish only a slight abnormality or a combination of 21 slight abnormalities that would have no more than a minimal effect on the claimant’s ability to 22 work. Social Security Rulings (“SSRs”) 85-28 and 16-3p. 2 If the claimant does not have a severe 23 medically determinable impairment or combination of impairments that significantly limit her 24 from performing basic work activities, then a finding of not disabled is made. 20 C.F.R. § 25 416.920(c). If the claimant has a severe medically determinable impairment or combination of 26 2 SSRs constitute the Social Security Administration’s official interpretations of the statute 27 it administers and its regulations. See Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009). They are entitled to some deference if they are consistent with the Social Security Act 28 and regulations. Id. 3 1 impairments that significantly limit her from performing basic work activities, then the analysis 2 proceeds to the third step. See 20 C.F.R. § 416.920(a)(4). 3 The third step requires the ALJ to determine whether the claimant’s impairment or 4 combination of impairments meet or medically equal the criteria of an impairment listed in 20 5 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 416.920(a)(4)(iii). If the claimant’s 6 impairment or combination of impairments meet or equal the criteria of a listing and meet the 7 duration requirement in 20 C.F.R. § 416.909, then a finding of disabled is made. 20 C.F.R. § 8 416.920(d). If the claimant’s impairment or combination of impairments does not meet or equal 9 the criteria of a listing or meet the duration requirement in 20 C.F.R. § 416.909, then the ALJ must 10 assess the claimant’s residual functional capacity (“RFC”) before proceeding to step four of the 11 sequential evaluation process. 20 C.F.R. § 416.920(e). 12 The RFC is a function-by-function assessment of the claimant’s ability to do physical and 13 mental work-related activities on a sustained basis despite limitations from impairments. SSR 9614 8p. In making this finding, the ALJ must consider all severe and non-severe impairments, 15 including pain, and the extent to which the symptoms can reasonably be accepted as consistent 16 with the evidence in the record. 20 C.F.R. §§ 416.920(e), 416.945; see also SSR 16-3p. To the 17 extent the claimant’s statements about the intensity, persistence, or limiting effects of her pain or 18 other impairments are not substantiated by objective medical evidence, the ALJ must determine 19 the credibility of the claimant’s statements based on a consideration of the entire case record. See 20 Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997), as amended on reh'g (Sept. 17, 1997). 21 After assessing the claimant’s RFC, the fourth step requires the ALJ to determine whether 22 the claimant has the RFC to perform her past relevant work (“PRW”). 20 C.F.R. § 416.920(a)(iv). 23 PRW means work performed either as the claimant previously performed it or as it is generally 24 performed in the national economy within the last fifteen years or fifteen years prior to the date 25 that disability must be established. 20 C.F.R. § 416.960(b). In addition, the work must have lasted 26 long enough for the claimant to learn the job and performed at SGA. 20 C.F.R. §§ 416.960(b), 27 416.965. If the claimant has the RFC to perform her past work, then a finding of not disabled is 28 4 1 made. 20 C.F.R. § 416.920(f). If the claimant is unable to perform or does not have any PRW, 2 then the analysis proceeds to the fifth and final step. See 20 C.F.R. § 416.920(a)(4). 3 The fifth step requires the ALJ to determine whether the claimant can do any other work 4 considering her RFC, age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(v). If the 5 claimant can do other work, then a finding of not disabled is made. 20 C.F.R. § 416.920(g). If the 6 claimant cannot do other work, then a finding of disabled is made. Id. At this step, the burden 7 shifts to the Commissioner, who must provide evidence demonstrating that other work the claimant 8 can perform exists in significant numbers in the national economy. Tackett, 180 F.3d at 1099. 9 II. BACKGROUND 10 A. Plaintiff’s Application 11 On September 9, 2014, Plaintiff filed an application for social security disability insurance 12 benefits, alleging that she became disabled eighteen years earlier on the day she was born due to 13 cognitive disorder, delayed motor skills, and schizophrenia. AR 29, 152, 302–303. The 14 Commissioner denied Plaintiff’s application on August 12, 2015, and again upon reconsideration 15 on January 5, 2016. AR 162–163, 188–189. On March 8, 2016, Plaintiff filed a request for a 16 hearing before an ALJ. AR 195–203. 17 On August 23, 2017, ALJ Gary L. Vanderhoof presided over Plaintiff’s first hearing and 18 heard testimony from Plaintiff and a vocational expert. 3 AR 120–151. At some point, Plaintiff’s 19 case was transferred to ALJ Norman L. Bennett. See AR 81, 84. On June 15, 2018, ALJ Bennett 20 presided over Plaintiff’s second hearing and heard testimony from Plaintiff, Plaintiff’s mother, and 21 a vocational expert. AR 81–119. Plaintiff was represented by counsel. See AR 81. 22 On September 7, 2018, the ALJ issued an unfavorable decision finding that Plaintiff had 23 not been under a disability through the date of the decision. AR 20–30. On August 14, 2019, the 24 ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied 25 Plaintiff’s request for review. AR 1–6. 26 27 3 Vocational experts “are professionals under contract with [the Social Security Administration] to provide impartial testimony in agency proceedings.” Biestek, 139 S. Ct. at 28 1152. 5 1 On October 15, 2019, Plaintiff commenced this action for judicial review. Docket No. 1. 2 B. The Decision Below 3 The ALJ’s decision followed the five-step sequential disability evaluation process set forth 4 in 20 C.F.R. § 416.920. AR 20–30. At step one, the ALJ found that Plaintiff had not engaged in 5 SGA since September 9, 2014, the date of her application. AR 22. At step two, the ALJ found 6 that Plaintiff suffers from two severe medical impairments that significantly limit her ability to 7 perform basic work activities: tardive dyskinesia and cognitive disorder. AR 22. At step three, 8 the ALJ found that Plaintiff does not have an impairment or combination of impairments that meet 9 or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, 10 Appendix 1. AR 22–24. The ALJ found that Plaintiff has the residual functional capacity to 11 12 13 14 perform medium work as defined in 20 C.F.R. § 416.967(c) except she can lift/carry 50 pounds occasionally and 25 pounds frequently, can sit for 6 hours in an 8-hour workday, and stand/walk for 6 hours in an 8-hour workday. She can perform, simple repetitive tasks with a reasoning level of one to two and occasional contact with supervisors, co-workers, and the general public. 15 AR 24. 16 At step four, the ALJ found Plaintiff had no past relevant work given her lack of work 17 history. AR 29. At step five, the ALJ found that jobs exist in significant numbers in the national 18 economy that Plaintiff can perform based on her age, education, work experience, and residual 19 functional capacity. AR 29. The ALJ’s conclusion at step five relied on a vocational expert, who 20 testified that “an individual with the claimant’s age, education, work experience, and [RFC]” could 21 perform work as a cleaner, laundry worker, or packer. AR 29–30. Thus, the ALJ determined that 22 Plaintiff was not disabled from September 9, 2014, through the date of his decision. AR 20–30. 23 III. ANALYSIS 24 Plaintiff submits that the ALJ legally erred by failing to articulate clear and convincing 25 reasons for discounting Plaintiff’s testimony. Docket No. 17 at 9–11. The Commissioner submits 26 that the ALJ provided legally sufficient reasons supported by substantial evidence for discounting 27 Plaintiff’s subjective symptom testimony. Docket No. 18 at 5–15. As discussed below, the Court 28 6 1 finds that the ALJ did not provide specific, clear, and convincing reasons for discounting Plaintiff’s 2 testimony. 4 3 It is the ALJ’s prerogative to “determine credibility, resolve conflicts in the testimony, and 4 resolve ambiguities in the record.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 5 (9th Cir. 2014). Where the evidence draws into question the claimant’s subjective testimony about 6 her pain and symptoms, the ALJ must determine whether the claimant is credible. Fair v. Bowen, 7 885 F.2d 597, 604 (9th Cir. 1989). To evaluate the claimant’s credibility, the ALJ must first 8 determine whether the claimant presented objective medical evidence of an impairment that could 9 reasonably be expected to produce some degree of pain or other symptoms alleged. See SSR 1610 3p. If the claimant has presented objective medical evidence of an impairment, the ALJ must then 11 determine whether the intensity and persistence of those symptoms limit a claimant’s ability to 12 perform work-related activities. See id. At step two, the ALJ must consider the entire case record, 13 including the claimant’s subjective testimony. See id. 14 In the absence of evidence of malingering, the ALJ may reject the claimant’s subjective 15 testimony only by giving “specific, clear, and convincing reasons.” Lingenfelter v. Astrue, 504 16 F.3d 1028, 1036 (9th Cir. 2007). “This is not an easy requirement to meet: ‘The clear and 17 convincing standard is the most demanding required in Social Security cases.’” Garrison v. 18 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 19 F.3d 920, 924 (9th Cir. 2002)). “General findings are insufficient; rather, the ALJ must identify 20 what testimony is not credible and what evidence undermines the claimant’s complaints.” Lester 21 v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (emphasis added). Factors in the record the ALJ may 22 consider in evaluating the claimant’s credibility include objective medical evidence, the claimant’s 23 daily activities and treatment history, inconsistencies in the claimant’s testimony, the claimant’s 24 work record, and other factors concerning the claimant’s functional limitations. See Thomas, 278 25 F.3d at 958–959; Fair, 885 F.2d at 603; see also SSR 16-3p. 26 27 4 Plaintiff also submits that the ALJ legally erred because the ALJ failed to consider the testimony of Plaintiff’s mother from the June 15, 2018 hearing. See Docket No. 17 at 18–20. The 28 Court need not reach this argument given the finding above. 7 1 Plaintiff testified that her prescribed medications included Clozapine, Levothyroxine, 2 Metformin, and Abilify. AR 92. She testified that she did not have a driver’s license because she 3 had slow “motor skills,” which interfered with her ability to multitask at work. AR 89, 93. Plaintiff 4 testified that she suffers from tardive dyskinesia, 5 an illness that “makes [her] hand movement 5 really slow.” AR 96. According to Plaintiff, she may be able to do “one or two things at . . . once” 6 while working. AR 93. Plaintiff further testified that her tardive dyskinesia was improving, 7 allowing her to lift no more than twenty pounds. AR 98. 8 As for her employment history, Plaintiff testified that she previously worked at Goodwill, 9 where she placed clothes on racks. AR 90, 97–98. When asked to describe her job performance 10 at Goodwill, Plaintiff responded, “I didn’t do very well.” AR 98. She explained that she worked 11 by herself “completely” and thought “they wanted [her] to go like really fast so it didn’t go well 12 because of that.” AR 98 According to Plaintiff, she then secured work at Jason’s Deli through a 13 local non-profit organization. AR 98. There, Plaintiff prepared food and worked thirty-five hours 14 per week for approximately one year. AR 99. She testified that her time at Jason’s Deli “was 15 good” and that she had a job coach, whom she believed would also say she “was doing good.” AR 16 98–99. In addition, Plaintiff testified that, at the time of the hearing, she worked and “help[ed] 17 prepare food[.]” AR 90. She testified that she worked fifteen hours per week and had a job coach 18 for four months. AR 99–101. Plaintiff testified that her boss asked her to work faster “a few times 19 in a week.” AR 101. Plaintiff further testified that she believed she could work full-time and 20 intended to find a job with more hours. AR 92, 94. In Plaintiff’s words, “I’m actually thinking 21 about doing—working at a library because I love books.” AR 95. 22 Here, the ALJ determined that Plaintiff presented objective medical evidence of cognitive 23 disorder, delayed motor skills, and schizophrenia—medical impairments that could reasonably be 24 expected to produce the symptoms she alleged. AR 24. However, the ALJ found that the evidence 25 in the record did not support Plaintiff’s testimony regarding the intensity, persistence, and limiting 26 5 “Tardive dyskinesia is a neurological disorder, irreversible in some cases, that is 27 characterized by involuntary, uncontrollable movements of various muscles, especially around the face.” United States v. Williams, 356 F.3d 1045, 1054 (9th Cir. 2004) (quoting Washington v. 28 Harper, 494 U.S. 210, 230 (1990)). 8 1 effects of her symptoms. AR 24. In other words, the ALJ discounted the credibility of Plaintiff’s 2 testimony regarding the intensity, persistence, and limiting effects of her symptoms. As no 3 evidence of malingering exists in the record, the ALJ was required to provide specific, clear, and 4 convincing reasons for rejecting Plaintiff’s testimony. 5 6 coach. 6 Plaintiff testified that she did not perform well while working at Goodwill without a job AR 97–98. An assessment of Plaintiff’s work at Goodwill by the Department of 7 Employment Training and Rehabilitation confirmed that her “productivity was lower than 8 expected from a typical employee.” AR 454. For example, on August 7, 2013, Plaintiff 9 “completed one rack of 100 pieces of clothing in 3 hours. The average employee can complete 310 4 racks in 3 hours.” AR 454. On August 8, 2013, although Plaintiff “was able to complete her 11 rack faster than the previous day[,] she was unable to complete the rack within the 70 minutes. 12 [Plaintiff] completed the rack in 2 hours.” AR 454. By contrast, Plaintiff testified that she worked 13 thirty-five hours per week at Jason’s Deli with the help of a job coach. AR 99. Plaintiff also 14 testified that she performed well at Jason’s Deli and believed her job coach would commend her 15 for her performance. AR 99. As the ALJ observed, training reports during this time “were 16 satisfactory, above average, and exceeding expectations.” AR 26, 912–916. The significance of 17 a job coach in Plaintiff’s work performance is further demonstrated by her testimony that she had 18 a job coach for four months at her current place of employment. AR 100. She testified that, 19 without a job coach, she now works fifteen hours per week and that her boss tells her to work faster 20 a few times a week, albeit encouragingly. AR 101. In sum, Plaintiff’s testimony establishes a 21 clear distinction between her work with and without a job coach and suggests that she can work 22 longer hours and perform better with the help of a job coach. 7 23 6 At the August 23, 2017 hearing, Plaintiff testified that she did have a job coach while 24 working at Goodwill. AR 141. To be sure, Plaintiff contradicted herself as to whether she had a job coach while employed at Goodwill. Although it is the ALJ’s prerogative to “resolve conflicts 25 in the testimony,” Treichler, 775 F.3d at 1098, the ALJ in this case failed to address Plaintiff’s testimony at either hearing. As a result, the Court does not consider Plaintiff’s contradictory 26 testimony in issuing this order. In its reviewing capacity, the Court is indeed “constrained to review the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 27 7 At the August 23, 2017 hearing, Plaintiff testified as follows: “Well, with my condition 28 sometimes I’ll forget things so that’s why I have to work with like a job coach.” AR 136. 9 1 The ALJ, however, relied exclusively on his summary and interpretation of the documents 2 in the record to discount Plaintiff’s testimony. See AR 24–29. These documents included 3 Plaintiff’s treatment records, Plaintiff’s psychological examinations, a statement from Plaintiff’s 4 parents, an assessment of Plaintiff’s work performance in the form of six job training reports over 5 an eight-month period, and notes from Disability Determination Services physicians and 6 psychologists. AR 24–29. Based on this evidence, the ALJ determined that Plaintiff’s “alleged 7 disabling symptoms were not consistent with the longitudinal medical evidence.” AR 28. The 8 ALJ further found that, “[d]espite allegations of psychological limitations, the objective findings 9 did not support the presence of a medically determinable impairment that could be expected to 10 cause symptoms of the type and severity that [Plaintiff] alleged.” AR 28. “In fact,” the ALJ found, 11 “there was no objective medical evidence that would support limitations such as those argued for 12 by the claimant.” AR 28. According to the ALJ, Plaintiff “had many subjective complaints 13 without corresponding objective findings to support them.” AR 28. Although he noted that “the 14 [RFC] adequately considered and evaluated all of her alleged symptoms, thereby giving her the 15 maximum benefit of the doubt[,]” the ALJ neither summarized nor addressed any specific portion 16 of Plaintiff’s testimony in evaluating her credibility to assess her RFC. AR 28. 17 The ALJ’s vague and conclusory statements purporting to reject Plaintiff’s testimony 18 exemplify precisely what the Ninth Circuit has instructed against. In Brown-Hunter v. Colvin, 806 19 F.3d 487, 489 (9th Cir. 2015), the Ninth Circuit held “that an ALJ does not provide specific, clear, 20 and convincing reasons for rejecting a claimant’s testimony by simply reciting the medical 21 evidence in support of his or her [RFC] determination.” To ensure meaningful review, an ALJ 22 must “specify which testimony she finds not credible, and then provide clear and convincing 23 reasons, supported by evidence in the record, to support that credibility determination.” Id. 24 (emphasis added); see also Holohan, 246 F.3d at 1208 (“[T]he ALJ must specifically identify the 25 testimony she or he finds not to be credible and must explain what evidence undermines the 26 testimony.”) (emphasis added). As there was no evidence of malingering, it was imperative for 27 the ALJ in this case to cite specific evidence in the record to undermine Plaintiff’s testimony 28 clearly and convincingly, including her specific subjective contentions about her work history and 10 1 job performance with and without a job coach. The ALJ did not do so and, therefore, committed 2 legal error that “precludes [the Court] from conducting a meaningful review of the ALJ’s 3 reasoning.” Brown-Hunter, 806 F.3d at 489. Consequently, the Court finds that the ALJ’s legal 4 error was not harmless. See id. 5 IV. APPROPRIATE RELIEF 6 The Court turns to the appropriate relief in this case. Upon finding that an ALJ committed 7 harmful error, the Ninth Circuit has made clear that “the proper course, except in rare 8 circumstances, is to remand to the agency for additional investigation.” Treichler, 775 F.3d at 9 1099. A court may instead remand for an award of benefits when several conditions are met, 10 including that the record has been fully developed and further administrative proceedings would 11 serve no useful purpose. See id. at 1101. 12 Plaintiff here simply asks for an award of benefits without providing meaningfully- 13 developed argument as to why such relief is warranted. See Docket No. 17 at 18, 20–21. 14 Moreover, the Court cannot say that further administrative proceedings would serve no useful 15 purpose, especially given the need for consideration of the evidence identified above and the 16 testimony of the lay witness. It remains to be seen whether a finding can properly be made that 17 Plaintiff is not disabled, but the Court is not persuaded that the record is fully developed or that 18 further proceedings would serve no useful purpose. 19 Given the circumstances, the appropriate relief is to remand to the ALJ for further 20 proceedings consistent with this order. 21 V. CONCLUSION 22 Accordingly, the Court GRANTS Plaintiff’s motion for reversal and/or remand, Docket 23 No. 17, and DENIES the Commissioner’s countermotion to affirm. Docket No. 18. The case is 24 hereby remanded for further proceedings consistent with this order. The Clerk’s Office is 25 instructed to ENTER FINAL JUDGMENT and to CLOSE this case. 26 Dated: September 23, 2020 27 ______________________________ Nancy J. Koppe United States Magistrate Judge 28 11
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