Bustamante v. Commissioner of Social Security, No. 1:2018cv03015 - Document 20 (E.D. Wash. 2019)
Court Description: ORDER Granting 16 Plaintiff's Motion for Summary Judgment and Denying 17 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (PL, Case Administrator)
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Bustamante v. Commissioner of Social Security Doc. 20 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Jan 11, 2019 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 EVA B., No. 1:18-cv-03015-MKD Plaintiff, 8 vs. 9 COMMISSIONER OF SOCIAL 10 SECURITY, Defendant. 11 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 16, 17 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 16, 17. The parties consented to proceed before a magistrate 15 judge. ECF No. 4. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 grants Plaintiff’s Motion, ECF No. 16, and denies Defendant’s Motion, ECF No. 18 17. 19 20 2 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 3 4 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited; the Commissioner’s decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 9 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 10 (quotation and citation omitted). Stated differently, substantial evidence equates to 11 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 12 citation omitted). In determining whether the standard has been satisfied, a 13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 17 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 18 rational interpretation, [the court] must uphold the ALJ’s findings if they are 19 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 20 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 2 ORDER - 2 1 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 2 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 3 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 4 decision generally bears the burden of establishing that it was harmed. Shinseki v. 5 Sanders, 556 U.S. 396, 409-10 (2009). 6 7 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 13 “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” 42 U.S.C. § 16 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 19 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 20 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 2 ORDER - 3 1 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 2 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 6 “any impairment or combination of impairments which significantly limits [his or 7 her] physical or mental ability to do basic work activities,” the analysis proceeds to 8 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 9 this severity threshold, however, the Commissioner must find that the claimant is 10 not disabled. 20 C.F.R. § 416.920(c). 11 At step three, the Commissioner compares the claimant’s impairment to 12 severe impairments recognized by the Commissioner to be so severe as to preclude 13 a person from engaging in substantial gainful activity. 20 C.F.R. § 14 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 15 enumerated impairments, the Commissioner must find the claimant disabled and 16 award benefits. 20 C.F.R. § 416.920(d). 17 If the severity of the claimant’s impairment does not meet or exceed the 18 severity of the enumerated impairments, the Commissioner must pause to assess 19 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 20 defined generally as the claimant’s ability to perform physical and mental work 2 ORDER - 4 1 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 2 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 6 capable of performing past relevant work, the Commissioner must find that the 7 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 8 performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing other work in the national economy. 11 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 12 must also consider vocational factors such as the claimant’s age, education and 13 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 14 adjusting to other work, the Commissioner must find that the claimant is not 15 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 16 other work, analysis concludes with a finding that the claimant is disabled and is 17 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 18 The claimant bears the burden of proof at steps one through four above. 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 20 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 2 ORDER - 5 1 capable of performing other work; and (2) such work “exists in significant 2 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 3 700 F.3d 386, 389 (9th Cir. 2012). 4 5 ALJ’S FINDINGS Plaintiff applied for supplemental security income benefits on July 29, 2014 6 alleging a disability onset date of July 19, 2013. Tr. 231-36. Benefits were denied 7 initially, Tr. 162-70, and upon reconsideration. Tr. 176-82. Plaintiff appeared for 8 a hearing before an administrative law judge (ALJ) on January 30, 2017. Tr. 659 114. On March 30, 2017, the ALJ denied Plaintiff’s claims. Tr. 12-34. 10 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 11 activity since July 29, 2014. Tr. 17. At step two, the ALJ found Plaintiff has the 12 following severe impairments: personality disorder; depression; anxiety disorder; 13 diabetes; and bilateral knee condition and obesity. Tr. 17. At step three, the ALJ 14 found that Plaintiff does not have an impairment or combination of impairments 15 that meets or medically equals the severity of a listed impairment. Tr. 18. The 16 ALJ then concluded that Plaintiff has the RFC to perform light work with the 17 following additional limitations: 18 19 20 2 [s]he can only occasionally climb ramps and stairs. She cannot climb ladders, ropes, or scaffolds. She can occasionally kneel, crouch, and crawl. She should avoid concentrated exposure to loud noises, extreme cold, odors, gases, dust, humidity, fumes, poor ventilation, and hazards (such as dangerous machinery and unprotected heights). She can understand and remember simple instructions associated with unskilled work tasks. She ORDER - 6 1 2 should not have contact with the general public, but incidental contact with the general public is not precluded. She can interact frequent[sic] with 5 or fewer co-workers, which includes collaborative efforts lasting up to 20 minutes. 3 Tr. 20. 4 At step four, the ALJ found Plaintiff is unable to perform any past relevant 5 work. Tr. 26. At step five, the ALJ found that considering Plaintiff’s age, 6 education, work experience, and RFC, there are other jobs that exist in significant 7 numbers in the national economy that Plaintiff can perform such as packing line 8 worker, cleaner (housekeeping), and mail clerk. Tr. 27. Alternatively, if Plaintiff 9 had additional limitations of standing and walking for a total of 5 hours in an 810 hour day and being off task for 10% of the workday, the ALJ concluded Plaintiff 11 could perform the job of outside deliverer. Tr. 27. The ALJ concluded Plaintiff 12 has not been under a disability, as defined in the Social Security Act, from July 29, 13 2014 through the date of the decision. Tr. 27. 14 On December 1, 2017, the Appeals Council denied review, Tr. 1-6, making 15 the ALJ’s decision the Commissioner’s final decision for purposes of judicial 16 review. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. 17 18 19 20 2 ORDER - 7 1 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 her supplemental security income benefits under Title XVI of the Social Security 4 Act. ECF No. 16. Plaintiff raises the following issues for this Court’s review: 5 1. Whether the ALJ properly evaluated the medical opinion evidence; 6 2. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 7 3. Whether the ALJ properly determined Plaintiff’s severe impairments at 8 step two. 9 See ECF No. 16 at 4-20. 10 DISCUSSION 11 A. Medical Opinion Evidence Plaintiff contends the ALJ improperly rejected the opinions of Edward Lane, 12 13 M.D., Albert Ooguen Gee, M.D., 1 and Tae-Im Moon, Ph.D. ECF No. 16 at 4-10. There are three types of physicians: “(1) those who treat the claimant 14 15 (treating physicians); (2) those who examine but do not treat the claimant 16 (examining physicians); and (3) those who neither examine nor treat the claimant 17 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 18 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 19 20 2 1 The ALJ’s decision refers to Dr. Gee as Dr. Ooguen. Tr. 25. ORDER - 8 1 Generally, a treating physician’s opinion carries more weight than an examining 2 physician’s, and an examining physician’s opinion carries more weight than a 3 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 4 to opinions that are explained than to those that are not, and to the opinions of 5 specialists concerning matters relating to their specialty over that of 6 nonspecialists.” Id. (citations omitted). 7 If a treating or examining physician’s opinion is uncontradicted, the ALJ 8 may reject it only by offering “clear and convincing reasons that are supported by 9 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 10 “However, the ALJ need not accept the opinion of any physician, including a 11 treating physician, if that opinion is brief, conclusory, and inadequately supported 12 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 13 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 14 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 15 may only reject it by providing specific and legitimate reasons that are supported 16 by substantial evidence.” Bayliss, 427 F.3d at 1216. 17 1. Dr. Lane 18 Dr. Lane is Plaintiff’s long-time treating physician. See Tr. 123-31 (citing 19 treatment records dating back to 2009); Tr. 520. In May 2015, Dr. Lane completed 20 a medical report stating that Plaintiff’s pain and stiffness caused by osteoarthritis in 2 ORDER - 9 1 her knees and influenced by depression would limit her ability to work by causing 2 her to miss four or more days per month. Tr. 820. He opined that work requiring 3 her to stand or walk would cause her pain to increase and her prognosis was 4 “poor . . . but may improve with surgery.” Tr. 821. In October 2016, Dr. Lane 5 completed a physical functional evaluation, in which he opined that Plaintiff’s 6 osteoarthritis caused a marked impairment in her ability to stand, walk, lift, carry, 7 push, pull and crouch, Plaintiff’s depression and anxiety caused a marked 8 impairment in Plaintiff’s ability to communicate, and Plaintiff was unable to meet 9 the demands of sedentary work. Tr. 1414-43. The ALJ assigned Dr. Lane’s opinion little weight, Tr. 25, while assigning 10 11 “significant weight to the medical opinions of the state agency consultants,” Tr. 24, 12 which included the April 2015 contradictory medical opinion of Alnoor Virji, 13 M.D., Tr. 155-57. 2 Tr. 24-25. The ALJ was required to provide specific and 14 legitimate reasons for rejecting Dr. Lane’s opinions. Bayliss, 427 F.3d at 1216. 15 16 2 The ALJ’s decision also cites the record (B3A) containing the physical capacity 17 assessment of a non-physician single decision maker (SDM) on initial review. Tr. 18 24 (citing Tr. 140-42). In determining a claimant’s residual functional capacity, 19 “[a]n ALJ may not accord any weight, let alone substantial weight to the opinion of 20 a non-physician SDM.” Morgan v. Colvin, 531 Fed. App’x 793, 794-95 (9th Cir. 2 ORDER - 10 1 First, the ALJ gave little weight to Dr. Lane’s opinion because “Dr. Lane’s 2 opinions do not provide a completed evaluation with objective findings consistent 3 with such limitations.” Tr. 25. A medical opinion may be rejected by the ALJ if it 4 is conclusory or inadequately supported. Bray, 554 F.3d at 1228; Thomas, 278 5 F.3d at 957. For example, an ALJ may permissibly reject check-box reports that 6 are unaccompanied by any explanation of the bases for their conclusions. Crane v. 7 Shalala, 76 F.3d 251, 253 (9th Cir. 1996). However, if treatment notes are 8 consistent with the opinion, a check-box form may not automatically be rejected. 9 See Garrison v. Colvin, 759 F.3d 995, 1014 n.17 (9th Cir. 2014). The Ninth 10 Circuit has explained that “the treating physician’s opinion as to the combined 11 impact of the claimant’s limitations—both physical and mental—is entitled to 12 special weight.” Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995). “The treating 13 physician’s continuing relationship with the claimant makes him especially 14 qualified to evaluate reports from examining doctors, to integrate the medical 15 information they provide, and to form an overall conclusion as to functional 16 capacities and limitations, as well as to prescribe or approve the overall course of 17 treatment.” Id. The record shows that Dr. Lane began treating Plaintiff in 2009 18 19 June 21, 2013) (unpublished) (citing Program Operations Manual System DI 20 24510.050)). 2 ORDER - 11 1 and his treatment records from numerous examinations during the relevant period 2 are included in the record. Tr. 512-629, 1444-1590. Accordingly, the ALJ was not 3 entitled to reject Dr. Lane’s opinions merely because the opinions were prepared 4 without the inclusion of a “complete[] evaluation.” 5 Second, the ALJ concluded Dr. Lane’s opinion was not consistent with his 6 other treatment notes or notes from other providers. Tr. 24. A medical opinion 7 may be rejected if it is unsupported by medical findings. Bray, 554 F.3d at 1228; 8 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); 9 Thomas, 278 F.3d at 957; Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 10 2001); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). An ALJ may 11 discredit physicians’ opinions that are unsupported by the record as a whole. 12 Batson, 359 F.3d at 1195. Moreover, an ALJ is not obliged to credit medical 13 opinions that are unsupported by the medical source’s own data and/or 14 contradicted by the opinions of other examining medical sources. Tommasetti v. 15 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 16 Here, the ALJ acknowledged that the diagnostic imaging revealed knee 17 abnormalities. Tr. 24; see Tr. 806 (Jan. 2015 x-ray showing “[m]ild osteoarthritic 18 spurring of the medial and lateral joint compartments); Tr. 838 (Feb. 2016 x-rays 19 showing moderate joint space narrowing in the medial compartment of the right 20 knee indicating moderate degenerative joint disease); Tr. 621 (Aug. 2014 MRI 2 ORDER - 12 1 showing osteoarthritic changes of the medial and lateral compartments of mild-to2 moderate severity including less than 50% cartilage height loss). Nonetheless, the 3 ALJ rejected Dr. Lane’s opinion because: 4 5 6 [m]ost records show that she presented in no acute distress; had no muscle atrophy or abnormality in gait; and showed no deficits in range of motion, muscle strength/tone, sensation, or strength in the upper or lower extremities. She did not exhibit significant swelling in the legs, and did not exhibit signs of frequent falls due to knee pain. 7 Tr. 24 (citing Tr. 376 (Sept. 2014: new patient evaluation at cardiovascular clinic); 8 Tr. 394-95 (Jan. 2014: epilepsy clinic note), Tr. 459 (Nov. 2014: cardiology 9 follow-up), Tr. 479 (Sept. 2014: cardiology follow-up), Tr. 916 (Dec. 2016: clinic 10 progress report noting “musculoskeletal problem with right knee”); Tr. 929 (Nov. 11 2016: clinic progress note noting problem with right knee); Tr. 937 (Oct. 2016: 12 clinic progress note indicating problem with right knee); Tr. 1236 (Mar. 2015: 13 emergency room report after being seen for chest pressure); Tr. 1373 (June 2016: 14 emergency room report after chest x-ray); Tr. 1406 (Oct. 2016: epilepsy clinic 15 note); Tr. 1424 (May 2015: office visit for hypersomnia); Tr. 1429 (Aug. 2015: 16 office visit for hypersomnia); Tr. 1437 (Sept. 2016: follow-up post angiogram for 17 cardiovascular exam pre- knee replacement surgery), Tr. 1445-51 (July 2015: 18 office visit for swollen glands) , Tr. 1459 (July 2015: follow-up regarding fatigue 19 and depression); Tr. 1462 (July 2015: office visit for pelvic examination); Tr. 1482 20 (Dec. 2015: office visit for headache, numbness and diabetes); Tr. 1492 (Feb. 2 ORDER - 13 1 2016: office visit noting “no change” in bilateral knee pain and including referral 2 to a specialist); Tr. 1499-1500 (Mar. 2016: follow-up following hospitalization for 3 high blood pressure); Tr. 1507 (May 2016: office visit noting right knee pain 4 despite no edema and providing referral to orthopedic surgery); Tr. 1509 (May 5 2016: follow-up post fall onto left side); Tr. 1516-17 (Aug. 2016: encounter for 6 preprocedural cardiovascular examination noting Plaintiff was cleared for knee 7 surgery); Tr. 1530 (Oct. 2016: office visit for polyarthralgia negative for joint 8 swelling or gait problem); Tr. 1545 (Dec. 2016: office visit for hives). 9 Here, the ALJ’s selective reliance on physical examination findings from 10 office visits almost entirely unrelated to Plaintiff’s knee impairment to reject Dr. 11 Lane’s opinion in favor the non-examining physician was improper. An ALJ may 12 not “cherry-pick[ ]” aspects of the medical record and focus only on those aspects 13 that fail to support a finding of disability. Ghanim v. Colvin, 763 F.3d 1154, 1164 14 (9th Cir. 2014); see Holohan, 246 F.3d at 1207 (faulting the ALJ’s selective 15 reliance on some aspects of the treating records while ignoring other aspects 16 suggestive of a more severe impairment). Moreover, “[t]he subjective judgments 17 of treating physicians are important, and properly play a part in their medical 18 evaluations.” Embrey v. Bowen, 849 F.2d 418 (9th Cir. 1988). Plaintiff’s knee 19 pain and objective findings related to the knee pain were well documented 20 throughout Dr. Lane’s treatment record and other records including those of her 2 ORDER - 14 1 orthopedic surgeon, Naga Suresh Cheppalli, M.D., physical therapy, and 2 orthopedic consultation with Dr. Gee. See, e.g., Tr. 530-32 (Dec. 2014: Dr. Lane 3 chart note discussing right knee pain, swelling and limited flexion, and therapy 4 which did not help); Tr. 552 (Sept. 2014: Dr. Lane chart note recommending 5 orthopedic consultation to consider knee injections, which she declined); Tr. 553 6 (July 2014: Dr. Lane follow-up for right knee pain noting intermittent swelling, 7 decreased range of motion, and that physical therapy has not helped); Tr. 557 (June 8 2014: Dr. Lane chart note indicating “chronic” right knee pain); Tr. 557-59 (June 9 2014: Dr. Lane referral to physical therapy for knee pain contributed by poor 10 muscle conditioning); Tr. 626 (July 2014: physical therapy progress note indicating 11 at least 20% impairment); Tr. 770-802 (physical therapy records); Tr. 807-09 (Jan 12 2015: Dr. Cheppalli chart note indicating clinical examination revealed “significant 13 pain and discomfort” and discussing treatment options; stating “[s]he is extremely 14 disabled by pain and had multiple falls because knee locking up. She tried the 15 anti-inflammatories and 12 weeks physical therapy without any help. She is 16 extremely needle phobic . . . . Complains of frequent swelling of her knee joint.”); 17 Tr. 974 (June 2016: limping due to her knee injury and noting “may be having a 18 knee replacement, walks with a limp”); Tr. 979 (June 2015: gait limping due to her 19 knee); Tr. 1217-24 (Mar. 2016: Dr. Gee noting she “walks with a slightly antalgic 20 gait because of what appears to be right knee pain,” listing ways to help alleviate 2 ORDER - 15 1 symptoms including staying off of her feet, and stating other than cortisone 2 injections, “her only other surgical option is arthroplasty”); Tr. 1469-71 (Sept. 3 2015: Dr. Lane progress note regarding bilateral knee pain gradually increasing, 4 indicating gait is “with stiff knees,” though both knees “appear normal.”); Tr. 5 1475-79 (Nov. 2015: Dr. Lane progress note indicating no improvement with 6 topical treatment for knee pain and referral to orthopedic surgery); Tr. 1494 (Feb. 7 2016: Dr. Lane progress note indicating “[o]rthopedic surgeon has told her she 8 needs knee replacement. Needs disabled parking permit.”); Tr. 1510-11 (June 9 2016: Dr. Lane progress note indicating increasingly difficulty walking and 10 prescribing a rolling walker); Tr. 1515 (Aug. 2016: Dr. Lane progress note 11 indicating Dr. Korimerla has cleared Plaintiff for knee replacement surgery); Tr. 12 1518 (Sept. 2016: Dr. Lane progress note regarding chronic pain in both arms and 13 legs). 14 Moreover, the record suggests her pain was sufficient to justify a treating 15 provider’s recommendation for intervention with arthroplasty, for which she was 16 medically cleared. Tr. 1515. However, the recent treatment records of her 17 orthopedic specialist, Dr. Cheppalli, from November 2015 through 2016 are not 18 part of the record. See Tr. 69-71, 87-88 (discussion between ALJ and attorney 19 regarding the record). During this period of time, the record indicates Dr. 20 Cheppalli referred Plaintiff for further orthopedic evaluation with Dr. Gee at the 2 ORDER - 16 1 University of Washington, Tr. 1223, ordered further imaging, Tr. 838, and told 2 Plaintiff “she needs a knee replacement,” Tr. 1491. The ALJ’s decision did not 3 acknowledge the incomplete record. Instead, the ALJ attributed the discussion of 4 surgery only to Dr. Gee and concluded that any ambiguity as to whether or not 5 surgery was recommended was inconsequential in light of Plaintiff’s clinical 6 presentation. Tr. 22-23. The ALJ did not rely upon medical expert testimony or 7 otherwise develop the record by ordering a consultative physical examination. 8 Instead, the ALJ relied upon the April 2015 opinion of non-examining physician 9 Dr. Virji, rendered shortly after Plaintiff’s arthroscopic surgery, which was based 10 upon the presumption Plaintiff’s condition would improve despite her surgeon’s 11 expressed lack of optimism about the anticipated surgical outcome. Tr. 152 (“light 12 RFC is applicable. Duration is considered. Knee function is expected to 13 improve.”); Tr. 809 (Cheppalli chart note stating “I am not very optimistic about 14 the results and I expressed this to her. She understands that her outcome might not 15 be as predictable as meniscal procedures . . .”). The ALJ failed to offer specific 16 and legitimate reasons supported by substantial evidence to reject Dr. Lane’s 17 opinion that she was limited to less than sedentary work. 18 A remand is appropriate to allow the ALJ to further develop the record by 19 obtaining all treatment records from Plaintiff’s orthopedic surgeon, to consider 20 2 ORDER - 17 1 whether or not knee replacement surgery was needed, and if warranted to obtain a 2 consultative examination and/or the testimony of a medical expert. 3 2. Dr. Gee 4 Dr. Gee, an orthopedic specialist, performed an evaluation of Plaintiff’s knee 5 on March 18, 2016 and discussed treatment options and ways Plaintiff could 6 attempt to alleviate her symptoms and pain. Tr. 1220. Dr. Gee’s progress note 7 states: “I did talk to her about activity modifications, trying to stay off her feet and 8 do a job that requires her to sit more.” Tr. 1220. The ALJ accorded this statement 9 little weight. Tr. 25. 10 First, the ALJ concluded Dr. Gee’s statement contained “insufficient detail 11 to be of significant probative value” in assessing the residual functional capacity. 12 The Social Security regulations “give more weight to opinions that are explained 13 than to those that are not.” Holohan, 246 F.3d at 1202. “[T]he ALJ need not 14 accept the opinion of any physician . . . if that opinion is brief, conclusory and 15 inadequately supported by clinical findings.” Bray, 554 at 1228. The Court agrees 16 the statement that Plaintiff should “sit more” is ambiguous. However, 17 “[a]mbiguous evidence, or the ALJ’s own finding that the record is inadequate to 18 allow for proper evaluation of the evidence,” triggers the ALJ’s duty to “conduct 19 an appropriate inquiry” or further develop the record “to assure that the claimant’s 20 interests are considered.” Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). 2 ORDER - 18 1 detail. Here, on this record, Dr. Gee’s statement combined with the missing 2 medical records discussed above, triggered the ALJ’s duty to conduct a further 3 inquiry. 4 Here, the Court notes that the ALJ also found that “Dr. Moon[sic] saw the 5 claimant on a single occasion,” “did not review any treatment evidence,” and 6 therefore “had little knowledge of the longitudinal record on which to base an 7 opinion.” Tr. 25. The number of visits a claimant had with a particular provider is 8 a relevant factor in assigning weight to an opinion. 20 C.F.R. § 416.927(c). On 9 this record, the fact that an evaluator examined Plaintiff one time is not a legally 10 sufficient basis for rejecting the opinion. This is particularly true, where as 11 occurred here, the ALJ instead relied on a reviewing state agency consultant, 12 whose opinion was rendered in April 2015 before much of the relevant medical 13 evidence existed. Moreover, a medical provider’s specialization is a relevant 14 consideration in weighing medical opinion evidence. 20 C.F.R. § 416.927(c)(5). 15 Dr. Gee performed a physical evaluation of Plaintiff, reviewed the “EpicCare 16 records,” and reviewed weightbearing x-rays. Tr. 1217-20. This reason was not a 17 specific and legitimate reason for according Dr. Gee’s opinion less weight, 18 especially where the credited state agency reviewing physician did not examine 19 Plaintiff or review the entire record including the most recent imaging. 20 2 ORDER - 19 1 Finally, the ALJ concluded Dr. Gee’s opinion that Plaintiff should remain 2 off her feet was inconsistent with his “mostly normal clinical findings” and the 3 overall record. Tr. 25. An ALJ may discredit physicians’ opinions that are 4 unsupported by the record as a whole. Batson, 359 F.3d at 1195. Moreover, an 5 ALJ is not obliged to credit medical opinions that are unsupported by the medical 6 source’s own data and/or contradicted by the opinions of other examining medical 7 sources. Tommasetti, 533 F.3d at 1041. As discussed above, the ALJ’s 8 characterization of Dr. Gee’s evaluation reflects a selective reading of the record. 9 Dr. Gee’s findings included a number of abnormal findings including mild-to10 moderate osteoarthritis of the knee with osteophytes in the patella femoral and 11 tibiofemoral articulations. Tr. 1219. He noted Plaintiff walked with a “slightly 12 antalgic gait” and experienced pain over the joint and upon full extension and 13 flexion. Tr. 1219. He opined cortisone injection and arthroplasty (knee 14 replacement) were options to address Plaintiff’s pain. Tr. 1220. As noted supra, 15 the overall record, also contains consistent evidence from Plaintiff’s treating 16 providers. Defendant’s Motion reiterates the ALJ’s findings without analysis or 17 addressing the evidence. ECF No. 17 at 17. Given the record and the ALJ’s 18 selective evaluation of the medical evidence, inconsistency with the record was not 19 a specific and legitimate reason supported by substantial evidence to accord Dr. 20 Gee’s opinion less weight. 2 ORDER - 20 1 The Court concludes the ALJ did not provide specific and legitimate reasons 2 to reject Dr. Gee’s opinion in favor of the state agency reviewing physician. 3 3. Dr. Moon 4 Dr. Moon completed a psychological/psychiatric evaluation of Plaintiff on 5 December 10, 2014. Tr. 481-88. Dr. Moon diagnosed Plaintiff with major 6 depressive disorder, recurrent, severe with psychotic features and panic disorder 7 with agoraphobia. Tr. 483. Dr. Moon opined that Plaintiff was markedly limited 8 in ten basic work activities, including the ability to: (i) understand, remember, and 9 persist in tasks by following very short and simple instructions; (ii) understand, 10 remember, and persist in tasks by following detailed instructions; (iii) perform 11 activities within a schedule, maintain regular attendance, and be punctual within 12 customary tolerances without special supervision; (iv) learn new tasks; (v) perform 13 routine tasks without special supervision; (vi) adapt to changes in a routine work 14 setting; (vii) communicate and perform effectively in a work setting; (viii) 15 complete a normal work day and work week without interruptions from 16 psychologically based symptoms; (ix) maintain appropriate behavior in a work 17 setting; and (x) set realistic goals and plan independently. Tr. 483-84. He also 18 opined Plaintiff was moderately restricted in three other areas. Tr. 484. 19 The ALJ assigned minimal weight to Dr. Moon’s opinion. Tr. 25. Because 20 Dr. Moon’s opinion was contradicted by the opinions of state agency consultants 2 ORDER - 21 1 James Bailey, Ph.D. and Eugene Kester, M.D., Tr. 142-43, 157-59, the ALJ was 2 required to provide specific and legitimate reasons for rejecting Dr. Moon’s 3 opinion. See Bayliss, 427 F.3d at 1216. 4 First, the ALJ noted that Dr. Moon saw Plaintiff on a single occasion. Tr. 5 25. The number of visits a claimant had with a particular provider is a relevant 6 factor in assigning weight to an opinion. 20 C.F.R. § 416.927(c). However, the 7 fact Dr. Moon evaluated Plaintiff one time is not a legally sufficient basis for 8 rejecting the opinion and is inconsistent with the ALJ’s decision to assign greater 9 weight to consultants who had no treating or examining relationship with Plaintiff. 10 Second, the ALJ found that Dr. Moon did not review any treatment records 11 and his assessment “does not seem consistent with the overall record.” Tr. 25. An 12 ALJ may discredit physicians’ opinions that are unsupported by the record as a 13 whole. Batson, 359 F.3d at 1195. Furthermore, the extent to which a medical 14 source is “familiar with the other information in [the claimant’s] case record” is 15 relevant in assessing the weight of that source’s medical opinion. See 20 C.F.R. § 16 416.927(c)(6). The ALJ cited inconsistencies in Plaintiff’s presentation while 17 noting she was “typically cooperative, with normal eye contact, speech, thought 18 processes, and movement. She had appropriate grooming and attention, and no 19 significant problem interacting appropriately with providers.” Tr. 25. However, 20 the ALJ does not explain how these observations are inconsistent with the 10 2 ORDER - 22 1 marked limitations identified by Dr. Moon. See McAllister v. Sullivan, 888 F.2d 2 599, 602 (9th Cir. 1989) (ALJ’s rejection of a physician’s opinion on the ground 3 that it was contrary to the record was error, as the ALJ failed to explain why the 4 physician’s opinion was flawed); see also Blakes v. Barnhart, 331 F.3d 565, 569 5 (7th Cir. 2003) (the ALJ must “build an accurate and logical bridge from the 6 evidence to her conclusions so that we may afford the claimant meaningful review 7 of the SSA’s ultimate findings”). 8 The record reflects these mental status observations were typical; for 9 example, Plaintiff’s counselor even commented that cooperative behavior and 10 flattened affect was “normal” for Plaintiff. Tr. 633. The ALJ’s reason for 11 rejecting Dr. Moon fails to build an “accurate and logical bridge,” whereas here, 12 Plaintiff’s mental health treatment record is extensive, and it documents serious 13 symptoms observed and reported by providers (beyond the mental status 14 examinations) that might influence Plaintiff’s ability to work and would support 15 Dr. Moon’s assessment. For example, in January 2015, her counselor noted she 16 experiences symptoms of depression on a daily basis including difficulty sleeping, 17 suicidal ideation, crying spells, feelings of loneliness, and anxiety, especially when 18 traveling in a vehicle. Tr. 638; see also Tr. 658 (lack of motivation); Tr. 943 (loss 19 of interest/pleasure); Tr. 991 (panic); Tr. 993 (helplessness and hearing voices); Tr. 20 1002 (sadness and panic attacks causing loss of breath); Tr. 1005 (low energy and 2 ORDER - 23 1 irritable); Tr. 1009 (isolation); Tr. 1014 (anger); Tr. 1018 (agitation with provider); 2 Tr. 1026 (psychosis); Tr. 1039 (auditory hallucinations); Tr. 1103 (paranoia and 3 fear while driving or in a car). In November 2015, Plaintiff displayed cooperative 4 behavior, normal speech, appropriate appearance, and fair insight; yet her provider 5 observed Plaintiff’s mood as depressed and anxious and assessed that despite the 6 provision of mental health services since 2012 “she has been tried on numerous 7 modalities for therapy and they have been unsuccessful,” including “medication 8 options.” Tr. 899. On this record, the ALJ’s rejection of Dr. Moon’s opinion due 9 to normal mental status findings is based on an overly simplistic reading of the 10 extensive and complex mental health record. See, e.g., Holohan, 246 F.3d at 11 1207–08 (holding that an ALJ cannot selectively rely on some entries in plaintiff’s 12 records while ignoring others). 13 The ALJ did not provide specific and legitimate reasons supported by 14 substantial evidence for discounting the opinion of the examining psychiatrist, Dr. 15 Moon, in favor of the psychological consultants, Dr. Bailey and Dr. Kester. 16 17 B. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 18 convincing in discrediting her symptom claims. ECF No. 16 at 10-18. 19 An ALJ engages in a two-step analysis to determine whether to discount a 20 claimant’s testimony regarding subjective symptoms. Social Security Ruling 2 ORDER - 24 1 (SSR) 16–3p, 2016 WL 1119029, at *2. “First, the ALJ must determine whether 2 there is objective medical evidence of an underlying impairment which could 3 reasonably be expected to produce the pain or other symptoms alleged.” Molina, 4 674 F.3d at 1112 (quotation marks omitted). “The claimant is not required to show 5 that her impairment could reasonably be expected to cause the severity of the 6 symptom she has alleged; she need only show that it could reasonably have caused 7 some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 8 2009). 9 Second, “[i]f the claimant meets the first test and there is no evidence of 10 malingering, the ALJ can only reject the claimant’s testimony about the severity of 11 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 12 rejection.” Ghanim, 763 F.3d at 1163 (9th Cir. 2014) (citations omitted). General 13 findings are insufficient; rather, the ALJ must identify what symptom claims are 14 being discounted and what evidence undermines these claims. Id. (quoting Lester, 15 81 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring 16 the ALJ to sufficiently explain why it discounted claimant’s symptom claims)). 17 “The clear and convincing [evidence] standard is the most demanding required in 18 Social Security cases.” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of 19 Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 20 2 ORDER - 25 1 Factors to be considered in evaluating the intensity, persistence, and limiting 2 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 3 duration, frequency, and intensity of pain or other symptoms; 3) factors that 4 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 5 side effects of any medication an individual takes or has taken to alleviate pain or 6 other symptoms; 5) treatment, other than medication, an individual receives or has 7 received for relief of pain or other symptoms; 6) any measures other than treatment 8 an individual uses or has used to relieve pain or other symptoms; and 7) any other 9 factors concerning an individual’s functional limitations and restrictions due to 10 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 11 416.929 (c). The ALJ is instructed to “consider all of the evidence in an 12 individual’s record,” “to determine how symptoms limit ability to perform work13 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 14 Here, the ALJ found Plaintiff’s medically determinable impairments could 15 reasonably be expected to produce the symptoms alleged, but Plaintiff’s statements 16 concerning the intensity, persistence and limiting effects of these symptoms were 17 not entirely consistent with the medical evidence and other evidence in the record. 18 Tr. 21. Specifically, the ALJ rejected Plaintiff’s symptom allegations related to her 19 seizures, shortness of breath, headaches, knee impairment, diabetes, and mental 20 2 ORDER - 26 1 impairments due to the alleged inconsistency with the medical evidence and 2 Plaintiff’s presentation to medical providers. Tr. 21-24. 3 The ALJ’s evaluation of Plaintiff’s symptom claims and the resulting 4 limitations relies entirely on the ALJ’s assessment of the medical evidence. 5 Having determined a remand is necessary to readdress the medical source 6 opinions, any reevaluation must necessarily entail a reassessment of Plaintiff’s 7 subjective symptom claims. Thus, the Court need not reach this issue and on 8 remand the ALJ must also carefully reevaluate Plaintiff’s symptom claims in the 9 context of the entire record. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 10 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline 11 to reach [plaintiff’s] alternative ground for remand.”). 12 13 C. Step Two Plaintiff contends the ALJ erred by failing to find Plaintiff’s seizure disorder 14 a severe impairment at step two, which lead to an improper residual functional 15 capacity. ECF No. 16 at 19-20. 16 At step two of the sequential process, the ALJ must determine whether 17 claimant suffers from a “severe” impairment, i.e., one that significantly limits her 18 physical or mental ability to do basic work activities. 20 C.F.R. § 416.920(c). A 19 physical or mental impairment must be established by objective medical evidence 20 from an acceptable medical source; the Plaintiff’s own statement of symptoms 2 ORDER - 27 1 alone will not suffice. 20 C.F.R. § 416.921 (eff. Mar. 27, 2017). 3 Once the 2 Plaintiff produces objective medical evidence of an underlying impairment or 3 combination of impairments, the ALJ must “consider the claimant’s subjective 4 symptom testimony, such as pain or fatigue, in determining severity.” Smolen, 80 5 F.3d at 1290; 20 C.F.R. § 416.929(d)(1) (eff. Mar. 27, 2017) (“Your symptoms, 6 such as pain, fatigue, shortness of breath, weakness, or nervousness, are considered 7 in making a determination as to whether your impairment or combination of 8 impairment(s) is severe.”). An impairment may be found to be not severe when “medical evidence 9 10 establishes only a slight abnormality or a combination of slight abnormalities 11 which would have no more than a minimal effect on an individual’s ability to 12 work….” SSR 85-28 at *3. Similarly, an impairment is not severe if it does not 13 significantly limit a claimant’s physical or mental ability to do basic work 14 activities, which include walking, standing, sitting, lifting, pushing, pulling, 15 reaching, carrying, or handling; seeing, hearing, and speaking; understanding, 16 carrying out and remembering simple instructions; responding appropriately to 17 18 3 19 As of March 27, 2017, 20 C.F.R. § 416.908 (2010) was removed and reserved and 20 C.F.R. § 416.921 was revised. The Court applies the version that was in 20 2 effect at the time of the ALJ’s decision. ORDER - 28 1 supervision, coworkers and usual work situations; and dealing with changes in a 2 routine work setting. 20 C.F.R. § 416.922 (eff. Mar. 27, 2017); SSR 85-28. 4 3 Step two is “a de minimus screening device [used] to dispose of groundless 4 claims.” Smolen, 80 F.3d at 1290. “Thus, applying our normal standard of review 5 to the requirements of step two, [the Court] must determine whether the ALJ had 6 substantial evidence to find that the medical evidence clearly established that 7 [Plaintiff] did not have a medically severe impairment or combination of 8 impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). Here, the ALJ determined Plaintiff’s seizure disorder was not a medically 9 10 determinable impairment and even if it was, it was not a severe impairment 11 because it caused little functional restriction. Tr. 18. First, the ALJ found that objective examination findings, including 12 13 electroencephalogram (EEG) studies, were normal and Plaintiff’s provider 14 indicated “only a possible diagnosis of seizures.” Tr. 18; see Tr. 356 (Oct. 2013 15 EEG). As Plaintiff contends, EEG testing does not rule out a seizure disorder. In 16 2014, despite normal EEG findings, neurological specialist with expertise in this 17 18 4 19 The Supreme Court upheld the validity of the Commissioner’s severity regulation, as clarified in SSR 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54 20 2 (1987). ORDER - 29 1 area Mark Holmes, M.D. noted Plaintiff presents with a history of “episodes of 2 transient altered mental status” and though “[t]he nature of these is not clear,” “the 3 differential diagnoses must include epileptic seizures.” Tr. 395. At Plaintiff’s 4 follow-up visit in July 2014, Dr. Holmes diagnosed “transient alterations in 5 awareness. It is still likely that she has epilepsy.” Tr. 381; see Tr. 898 (Nov. 2015: 6 Plaintiff “has a seizure disorder” that is “well controlled at this time.”). Dr. 7 Holmes prescribed and managed Plaintiff’s dose of lamotrigine. Tr. 395. The 8 state agency reviewer also acknowledged the epilepsy as a secondary diagnosis. 9 Tr. 133. The ALJ’s conclusion that Plaintiff’s seizure disorder was not a medically 10 determinable impairment because the record only contains “a possible diagnosis” 11 was not based on substantial evidence. 12 Next, the ALJ found that the evidence did not establish Plaintiff’s seizure 13 disorder caused more than a minimal limitation on Plaintiff’s ability to perform 14 basic work-related tasks. Here, the record is replete with documented instances of 15 Plaintiff’s seizure-like experiences, which are relevant to the ALJ’s final RFC 16 determination. Tr. 85-86, 98-100 (hearing testimony); Tr. 289-91 (seizure 17 questionnaire); Tr. 423 (Oct. 2014: hospitalization for transient ischemic attack 18 with right eye blindness); Tr. 509 (Oct. 2014: progress note discussing relationship 19 between sleep and seizures); Tr. 523 (Feb. 2015: reporting no obvious seizures in 20 several months); Tr. 566-68 (May 2014: told by doctor not to cook or be near oven 2 ORDER - 30 1 for safety issues); Tr. 687 (July 2014: reported seizure while off medication); Tr. 2 1388-89 (Oct. 2016: recurrent staring spells despite stable therapy with lamotrigine 3 and topiramate; Plaintiff reported increasing episodes especially in last three 4 months, which happen twice weekly and after they occur she will be briefly 5 confused and not know where she is); Tr. 1419 (Dec. 2016: Plaintiff “agreed not to 6 drive” and noted she was not driving due to seizure disorder). Even the state 7 agency physician, Dr. Virji, whom the ALJ credited, recommended an RFC 8 including limitations associated with “seizure precautions.” Tr. 141. It is clear the 9 error in failing to consider Plaintiff’s seizure disorder was not harmless. The 10 record reflects Plaintiff has been counseled not to drive and experiences significant 11 anxiety, panic and fear when in a car. Tr. 304, 588, 724. Yet at step five, one of 12 the light jobs identified by the ALJ with more limited standing and walking was 13 that of outside deliverer, which as described by the vocational expert, would 14 involve driving. Tr. 111. 15 The ALJ has committed harmful error in evaluation of the medical evidence 16 at step two. Because this error may impact multiple steps of the sequential 17 evaluation process, on remand, the entire sequential evaluation process. 18 19 20 2 ORDER - 31 1 2 D. Remedy Plaintiff urges this Court to remand for an immediate award of benefits. 3 ECF No. 16 at 20; ECF No. 19 at 5-6. 4 “The decision whether to remand a case for additional evidence, or simply to 5 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 6 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). 7 When the Court reverses an ALJ’s decision for error, the Court “ordinarily must 8 remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 9 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“the 10 proper course, except in rare circumstances, is to remand to the agency for 11 additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 12 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a number of Social Security 13 cases, the Ninth Circuit has “stated or implied that it would be an abuse of 14 discretion for a district court not to remand for an award of benefits” when three 15 conditions are met. Garrison, 759 F.3d at 1020 (citations omitted). Under the 16 credit-as-true rule, where (1) the record has been fully developed and further 17 administrative proceedings would serve no useful purpose; (2) the ALJ has failed 18 to provide legally sufficient reasons for rejecting evidence, whether claimant 19 testimony or medical opinion; and (3) if the improperly discredited evidence were 20 credited as true, the ALJ would be required to find the claimant disabled on 2 ORDER - 32 1 remand, the Court will remand for an award of benefits. Revels v. Berryhill, 874 2 F.3d 648, 668 (9th Cir. 2017). Even where the three prongs have been satisfied, 3 the Court will not remand for immediate payment of benefits if “the record as a 4 whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 5 F.3d at 1021. 6 In this case, it is not clear from the record that the ALJ would be required to 7 find Plaintiff disabled if all the evidence were properly evaluated. Ambiguities in 8 the record exist concerning the combined impact of all of Plaintiff’s severe and 9 non-severe impairments. Further proceedings are necessary for the ALJ to 10 properly address the medical evidence, reevaluate Plaintiff’s symptom claims, and 11 perform the five-step sequential evaluation anew. On remand, the ALJ will 12 supplement the record with any outstanding evidence pertaining to the relevant 13 time period and develop the record as necessary by ordering consultative 14 examinations and/or taking testimony from medical experts. 15 16 CONCLUSION Having reviewed the record and the ALJ’s findings, this court concludes the 17 ALJ’s decision is not supported by substantial evidence and free of harmful legal 18 error. Accordingly, IT IS HEREBY ORDERED: 19 1. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is GRANTED. 20 2. Defendant’s Motion for Summary Judgment, ECF No. 17, is DENIED. 2 ORDER - 33 1 3. The Court enter JUDGMENT in favor of Plaintiff REVERSING and 2 REMANDING the matter to the Commissioner of Social Security for further 3 proceedings consistent with this recommendation pursuant to sentence four of 42 4 U.S.C. § 405(g). 5 The District Court Executive is directed to file this Order, provide copies to 6 counsel, and CLOSE THE FILE. 7 DATED January 10, 2019. 8 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 2 ORDER - 34
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