Foddrill v. Commissioner of Social Security, No. 1:2018cv03068 - Document 21 (E.D. Wash. 2019)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, ECF No. 17 ; denying ECF No. 19 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

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Foddrill v. Commissioner of Social Security Doc. 21 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 Mar 05, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 9 KATE F., No. 1:18-CV-03068-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 14 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 15 16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 Nos. 17, 19. Attorney D. James Tree represents Katie F. (Plaintiff); Special 18 Assistant United States Attorney Jeffrey E. Staples represents the Commissioner of 19 Social Security (Defendant). The parties have consented to proceed before a 20 magistrate. ECF No. 3. After reviewing the administrative record and the briefs 21 filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary 22 Judgment; DENIES Defendant’s Motion for Summary Judgment; and 23 REMANDS the matter to the Commissioner for an immediate award of benefits 24 pursuant to 42 U.S.C. § 405(g). 25 JURISDICTION 26 Plaintiff filed applications for Supplemental Security Income (SSI) and 27 Disability Insurance Benefits (DIB) on January 11, 2010, Tr. 86-87, 262, alleging 28 disability since November 1, 2008, Tr. 231, 233, due to bipolar II with mania, ORDER GRANTING PLAINTIFF’S MOTION - 1 Dockets.Justia.com 1 depression, and posttraumatic stress disorder (PTSD). Tr. 266. The applications 2 were denied initially and upon reconsideration. Tr. 145-52, 159-180. 3 Administrative Law Judge (ALJ) Virginia M. Robinson held a hearing on January 4 14, 2013 and heard testimony from Plaintiff and vocational expert Trevor Duncan. 5 Tr. 42-83. The ALJ issued an unfavorable decision on February 1, 2013. Tr. 25- 6 35. The Appeals Council denied review on August 8, 2014. Tr. 1-6. Plaintiff 7 sought judicial review from this Court in October of 2014, Tr. 754-56, and the case 8 was remanded to the Commissioner for additional proceedings on March 7, 2016, 9 Tr. 760-74. The Appeals Council remanded the case to the ALJ for additional 10 proceedings on March 29, 2016. Tr. 783. The ALJ held a second hearing on February 7, 2017 and heard testimony 11 12 from Plaintiff, psychological expert Kenneth Asher, Ph.D., and vocational expert 13 Kimberly Mullinax. Tr. 677-723. The ALJ issued an unfavorable decision on 14 February 15, 2018. Tr. 644-59. The Appeals Council did not assume jurisdiction 15 in the prescribed time period under 20 C.F.R. §§ 404.984, 416.1484. Therefore, 16 the ALJ’s decision became the final decision of the Commissioner, which is 17 appealable to the district court pursuant to 42 U.S.C. §§ 405(g), 1383(c). Plaintiff 18 initiated this action for judicial review on April 30, 2018. ECF Nos. 1, 5. STATEMENT OF FACTS 19 The facts of the case are set forth in the administrative hearing transcript, the 20 21 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 22 here. 23 Plaintiff was 27 years old at the alleged date of onset. Tr. 231. She 24 completed high school, and her reported work history includes the jobs of cashier, 25 busser, cocktail server, customer service representative, special events coordinator, 26 admissions representative, and auto paint repair specialist. Tr. 267, 292. Plaintiff 27 reported that she stopped working on November 1, 2008 because of her conditions. 28 Tr. 266. ORDER GRANTING PLAINTIFF’S MOTION - 2 1 2 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 5 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 6 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 7 not supported by substantial evidence or if it is based on legal error. Tackett v. 8 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 9 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 10 another way, substantial evidence is such relevant evidence as a reasonable mind 11 might accept as adequate to support a conclusion. Richardson v. Perales, 402 12 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 13 interpretation, the court may not substitute its judgment for that of the ALJ. 14 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 15 findings, or if conflicting evidence supports a finding of either disability or non- 16 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 17 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 18 evidence will be set aside if the proper legal standards were not applied in 19 weighing the evidence and making the decision. Brawner v. Secretary of Health 20 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 21 22 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 23 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 24 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 25 through four, the burden of proof rests upon the claimant to establish a prima facie 26 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 27 burden is met once the claimant establishes that physical or mental impairments 28 prevent her from engaging in her previous occupations. 20 C.F.R. §§ 404.1520(a), ORDER GRANTING PLAINTIFF’S MOTION - 3 1 416.920(a)(4). If the claimant cannot do her past relevant work, the ALJ proceeds 2 to step five, and the burden shifts to the Commissioner to show that (1) the 3 claimant can make an adjustment to other work, and (2) the claimant can perform 4 specific jobs which are available in the national economy. Batson v. Comm’r of 5 Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant cannot 6 make an adjustment to other work in the national economy, a finding of “disabled” 7 is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 8 ADMINISTRATIVE DECISION 9 On February 21, 2018, the ALJ issued a decision finding Plaintiff was not 10 disabled as defined in the Social Security Act from November 1, 2008 through the 11 date of the decision. 12 13 14 15 16 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since November 1, 2008, the alleged date of onset. Tr. 646. At step two, the ALJ determined that Plaintiff had the following severe impairments: depression, PTSD, and bipolar disorder. Tr. 646. At step three, the ALJ found that Plaintiff did not have an impairment or 17 combination of impairments that met or medically equaled the severity of one of 18 the listed impairments. Tr. 647. 19 20 21 22 23 24 25 26 27 28 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined she could perform a range of light work with the following limitations: she can lift and/or carry up to 20 pounds occasionally and up to 10 pounds frequently. She can stand or walk for approximately 6 hours and sit for approximately 6 hours per 8 hour work day with normal breaks. She can occasionally climb ramps or stairs. She can never climb ladders, ropes, or scaffolds. She can occasionally stoop, kneel, crouch, and crawl. She should avoid concentrated exposure to excessive vibration. She should not work at unprotected heights. She is limited to simple, routine tasks in a routine work environment with simple, work-related decisions. She can have only superficial interaction with coworkers and incidental interaction with the public. ORDER GRANTING PLAINTIFF’S MOTION - 4 1 Tr. 648. The ALJ identified Plaintiff’s past relevant work as cashier II and cocktail 2 server and found that she could not perform this past relevant work. Tr. 657. At step five, the ALJ determined that, considering Plaintiff’s age, education, 3 4 work experience and residual functional capacity, and based on the testimony of 5 the vocational expert, there were other jobs that exist in significant numbers in the 6 national economy Plaintiff could perform, including the jobs of housekeeping 7 cleaner, production assembler, and packing line worker. Tr. 658. The ALJ 8 concluded Plaintiff was not under a disability within the meaning of the Social 9 Security Act from November 1, 2008 through the date of the ALJ’s decision. Tr. 10 458. ISSUES 11 The question presented is whether substantial evidence supports the ALJ’s 12 13 decision denying benefits and, if so, whether that decision is based on proper legal 14 standards. Plaintiff contends the ALJ erred by (1) failing to properly consider 15 Plaintiff’s symptom statements, (2) failing to properly weigh the medical opinions 16 in the record, and (3) failing to consider Plaintiff’s physical impairments at step 17 two. DISCUSSION1 18 19 20 1. Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s determination that Plaintiff’s symptom 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING PLAINTIFF’S MOTION - 5 1 2 statements were unreliable. ECF No. 17 at 20-21. It is generally the province of the ALJ to make determinations regarding the 3 reliability of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 4 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 5 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 6 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 7 and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. 8 Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: 9 rather the ALJ must identify what testimony is not credible and what evidence 10 11 undermines the claimant’s complaints.” Lester, 81 F.3d at 834. The ALJ found Plaintiff’s statements concerning the intensity, persistence, 12 and limiting effects of her symptoms to be “not entirely consistent with the medical 13 evidence and other evidence in the record.” Tr. 649. Specifically, the ALJ found 14 that (1) Plaintiff’s multiple mental health impairments have improved with 15 medication and therapy, (2) Plaintiff’s failure to continue therapy was inconsistent 16 with her reported severity of symptoms, and (3) Plaintiff’s reported activities were 17 inconsistent with her testimony. Tr. 649-53. 18 A. Improvement with Medication and Therapy 19 The ALJ’s first reason for rejecting Plaintiff’s symptom statements, that the 20 record showed that her symptoms improved with medication and therapy, is not 21 specific, clear and convincing. The Ninth Circuit has taken issue with the ALJ 22 citing evidence of improvement: 23 24 25 26 27 28 it is error to reject a claimant’s testimony merely because symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working. Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). ORDER GRANTING PLAINTIFF’S MOTION - 6 1 To support her determination, the ALJ set forth a summary of the medical 2 evidence and highlighted Plaintiff’s reports of improvement in the record. Tr. 651- 3 53. However, a review of the record shows that Plaintiff’s periods of improvement 4 with medication and therapy were either not supported by the record or the ALJ 5 omitted the evidence of an increase in symptoms not long after these periods of 6 improvement. 7 The ALJ cited to a period of reported improvement by Plaintiff from April 8 17, 2012 to November 19, 2012. Tr. 651 citing Tr. 603-15. However, symptom 9 improvement during this period is not supported by substantial evidence. On April 10 17, 2012, she presented with dysphoric, anxious, and constricted affect. Tr. 613. 11 She reported still feeling sad, decreased energy and motivation, and increased 12 anxiety. Id. Plaintiff arrived late to her appointment on November 5, 2012 and she 13 presented with depressed mood and agitated affect. Tr. 606. On October 8, 2012, 14 Plaintiff presented with depressed and anxious mood and sad affect. Tr. 610. On 15 October 29, 2012, Plaintiff was late to her appointment and did not complete the 16 assigned homework. Tr. 608. On November 19, 2012, Plaintiff reported 17 symptoms of depression, anxiety, irritability, loss of interest, difficulty 18 sleeping/concentrating, excessive daytime sleepiness, weight gain, sexual 19 problems, obsessions, excessive worry, upsetting thoughts, hallucinations, tobacco 20 use, family and legal problems. Tr. 601. 21 Next, the ALJ summarized the records from 2013 stating that providers 22 noted Plaintiff was doing well. Tr. 651. The ALJ specifically referred to an April 23 23, 2013 appointment in which Plaintiff reported improvement. Tr. 651 citing Tr. 24 1192. The counseling appointment prior to this Plaintiff had depressed mood and 25 sad affect and did not show up to her follow up session. Tr. 1197-98. The session 26 after this appointment she again presented with sad and anxious mood and a 27 slightly agitated affect. Tr. 1190. 28 Likewise, the ALJ summarized the records from 2014 through 2016 ORDER GRANTING PLAINTIFF’S MOTION - 7 1 highlighting all of Plaintiff’s reported improvements in symptoms. Tr. 651-52. 2 But the ALJ failed to address the periods of increased symptoms: On April 4, 3 2014, Plaintiff presented with a depressed mood with a sad affect. Tr. 1141; On 4 July 9, 2014, she presented agitated, very talkative, with irritable mood. Tr. 1132; 5 On August 14, 2014, she presented as anxious and depressed mood with a fidgety, 6 tense and tearful affect. Tr. 1128; On December 2, 2014, Plaintiff had a depressed 7 mood with a sad affect. Tr. 1112; On October 20, 2016, her mood was slightly 8 dysthymic. Tr. 1058. 9 Additionally, the ALJ specifically pointed to an increase in symptoms being 10 associated with an increase in stressors. Tr. 649, 652. An improvement in 11 symptoms “must also be interpreted with an awareness that improved functioning 12 while being treated and while limiting environmental stressors does not always 13 mean that a claimant can function effectively in a workplace.” Garrison, 759 at 14 1017. Therefore, simply because Plaintiff’s symptoms increased with an increase 15 in stressors is not a reason to reject her reported symptoms. 16 Here, the ALJ’s practice of relying on only the positive evidence is 17 insufficient to support her determination that Plaintiff’s improvement with 18 medication and treatment undercuts her reported symptoms. 19 B. 20 The ALJ’s second reason for rejecting Plaintiff’s symptom statements, that 21 22 Lack of Therapy Plaintiff failed to complete therapy, is not specific, clear and convincing. The Ninth Circuit has found that “it is a questionable practice to chastise one 23 with a mental impairment for the exercise of poor judgment in seeking 24 rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). Here, the 25 ALJ repeatedly states that while Plaintiff missed her therapy, she appeared able to 26 make her medication management appointments. Tr. 651-52. However, the ALJ 27 fails to articulate how this renders Plaintiff’s testimony unreliable. In fact, it 28 supports Plaintiff’s testimony that she struggled with the homework assigned to her ORDER GRANTING PLAINTIFF’S MOTION - 8 1 in counseling and this put strain on her relationship with her counselor. Tr. 693- 2 94, 703-05. 3 C. 4 The third reason the ALJ provided for rejecting Plaintiff’s symptom 5 statements, that her alleged symptoms were inconsistent with her reported 6 activities, is not specific, clear and convincing. 7 Reported Activities A claimant’s daily activities may support an adverse credibility finding if the 8 claimant’s activities contradict her other testimony. Orn v. Astrue, 495 F.3d 625, 9 639 (9th Cir. 2007). However, a claimant need not be “utterly incapacitated” to be 10 11 eligible for benefits. Fair, 885 F.2d at 603. The ALJ found that Plaintiff’s activities of caring for her children, being 12 involved in her church, driving a car, camping, crafting, volunteering at the food 13 bank, going to the gym, tending to her self-care, and performing household chores 14 were inconsistent with the degree of limitation Plaintiff reported. Tr. 652-53. The 15 ALJ stated that “[t]hese activities suggest a much greater level of functioning than 16 what the claimant alleged during her hearing and are inconsistent with the degree 17 of impairment that she is claiming.” Tr. 653. Here, the ALJ failed to state how 18 these regular daily activities were inconsistent with the limitations Plaintiff alleged. 19 Therefore, this fails to meet the specific, clear and convincing standard under 20 Lester. Furthermore, the Ninth Circuit has found that finding Plaintiff’s reported 21 activities of daily living as inconsistent with pain testimony as questionable: “We 22 have repeatedly warned that ALJs must be especially cautious in concluding that 23 daily activities are inconsistent with testimony about pain, because impairments 24 that would unquestionably preclude work and all the pressures of a workplace 25 environment will often be consistent with doing more than merely resting in bed all 26 day.” Garrison, 759 F.3d at 1016. 27 28 The ALJ failed to provide specific, clear and convincing reasons to support a rejection of Plaintiff’s symptom statements. Therefore, this amounts to error. ORDER GRANTING PLAINTIFF’S MOTION - 9 1 2 2. Medical Opinions Plaintiff argues that the ALJ failed to properly consider and weigh the 3 medical opinions expressed by Kenneth Asher, Ph.D., Geoff Dunn, M.D., Paul 4 Emmans, III, D.O., Kerby Simon, M.D., John W. Lyzanchuk, D.O., Thomas 5 Genthe, Ph.D., and Maria Mondragon, M.S.W. ECF No. 17 at 6-19. 6 A. 7 Dr. Asher testified at Plaintiff’s remand hearing and opined that, when Kenneth Asher, Ph.D. 8 considering her testimony, Plaintiff’s impairments in combination met or equaled 9 listing 12.04 and 12.15. Tr. 708 (“I’m leaning heavily on 12.04 and 12.15); Tr. 10 710-11 (“. . . understand, remembering or applying information, moderately 11 impaired; interaction with others moderately impaired, but as I said, I - - it may 12 actually lean - - fall over into the marked impaired range based on her present 13 testimony; concentration, persistence or maintaining pace, marked; adaptation, 14 managing self, moderate.”). 15 The ALJ rejected the opinion because it was largely based on Plaintiff’s 16 testimony at the hearing and this testimony was unreliable. Tr. 654. The ALJ 17 found that Plaintiff’s testimony was inconsistent with the longitudinal record 18 showing largely normal mental status evaluations, engaging in social interactions, 19 and reporting drastically more symptoms when appearing at evaluations for 20 benefits. Id. As discussed above, the ALJ failed to provide specific, clear and 21 convincing reasons for rejecting Plaintiff’s symptom statements. First, Plaintiff’s 22 symptom statements not being supported by the objective evidence is not a reason, 23 standing alone, to reject her testimony. See Lester, 81 F.3d at 834 (9th Cir. 1995) 24 (ALJ may not discredit the claimant’s testimony as to subjective symptoms merely 25 because they are unsupported by objective evidence). Second, the Court has 26 addressed that Plaintiff’s activities are not inconsistent with her testimony. See 27 supra. Third, the ALJ’s conclusion that Plaintiff was malingering is simply not 28 supported in the record, as even Dr. Asher found that there was no evidence of ORDER GRANTING PLAINTIFF’S MOTION - 10 1 malingering, exaggeration, or being purposely inaccurate in the record. Tr. 713. 2 Therefore, the ALJ’s reason for rejecting Dr. Asher’s opinion is not supported by 3 substantial evidence. 4 Defendant argues that Plaintiff failed to challenge the ALJ’s determination 5 that Dr. Asher’s opinion was based on Plaintiff’s subjective statements. ECF No. 6 19 at 13-14. However, the ALJ’s determination was that Dr. Asher’s opinion was 7 based on Plaintiff’s subjective reports and that these reports were inconsistent with 8 the objective evidence in the record, her activities, and evidence of malingering. 9 Tr. 654. Plaintiff challenged these reasons in her briefing. ECF No. 17 at 17-19. 10 Therefore, Plaintiff presented enough of a challenge to the ALJ’s treatment of Dr. 11 Asher’s opinion to allow the Court to address it in full. 12 B. 13 Plaintiff challenged the ALJ’s treatment of the medical opinions of Geoff 14 Dunn, M.D., Paul Emmans, III, D.O., Kerby Simon, M.D., John W. Lyzanchuk, 15 D.O., Thomas Genthe, Ph.D., and Maria Mondragon, M.S.W. ECF No. 17 at 6-19. 16 All of these opinions addressed Plaintiff’s residual functional capacity. 17 Considering this Court is remanding the case for an immediate award of benefits at 18 step three of the sequential evaluation process, see infra., there is no need to 19 discuss these opinions addressing Plaintiff’s residual functional capacity. 20 3. 21 22 23 Remaining Medical Opinions Step Two Plaintiff challenges the ALJ’s step two determination that she has no medically determinable, severe physical impairments. ECF No. 17 at 3-6. At step two of the sequential process, the ALJ must determine whether a 24 claimant suffers from a “severe” impairment. 20 C.F.R. §§ 404.1520(c), 25 416.920(c). To show a severe impairment, the claimant must first establish the 26 existence of a medically determinable impairment by providing medical evidence 27 consisting of signs, symptoms, and laboratory findings; the claimant’s own 28 statement of symptoms, a diagnosis, or a medical opinion is not sufficient to ORDER GRANTING PLAINTIFF’S MOTION - 11 1 establish the existence of an impairment. 20 C.F.R. §§ 404.1521, 416.921.2 2 “[O]nce a claimant has shown that [she] suffers from a medically determinable 3 impairment, [she] next has the burden of proving that these impairments and their 4 symptoms affect [her] ability to perform basic work activities.” Edlund v. 5 Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001). If the claimant fulfills this 6 burden, the ALJ must find the impairment “severe.” Id. “An impairment or 7 combination of impairments can be found ‘not severe’ only if the evidence 8 establishes a slight abnormality that has ‘no more than a minimal effect on an 9 individual[’]s ability to work.’” Smolen, 80 F.3d at 1290. 10 11 12 13 14 15 16 17 18 19 The ALJ provided the following analysis when addressing Plaintiff’s physical impairments at step two: I adopt and incorporate the discussion of the claimant’s physical complaints from the prior decision and continue to find that she does not have any medically determinable, severe physical impairments (11A/7-8). These findings were undisturbed by the District Court and the records since the time of the prior decision do not support a change in these findings. Nonetheless, I have considered the claimant’s subjective complaints of pain in the context of her mental health impairments and have limited her to light work. Even if her physical impairments were severe, the residual functional capacity noted below fully accommodates for them. 20 Tr. 647. The prior determination the ALJ incorporated only discussed multiple 21 sclerosis and a back impairment at step two. Tr. 730. She found that the multiple 22 sclerosis was not a medically determinable impairment and the back impairment 23 was not severe because it did not meet the durational requirement. Id. 24 25 This Court is crediting the opinion of Dr. Asher as true. See infra. At the hearing, Dr. Asher testified that Plaintiff’s pain was the result of physical 26 27 28 2 Prior to March 17, 2017, these requirements were set forth in 20 C.F.R. §§ 404.1508, 404.1528, 416.908, 416.928 (2016). ORDER GRANTING PLAINTIFF’S MOTION - 12 1 impairments: “Constant or chronic pain can have psychological effects, even if it 2 doesn’t - - even if it’s not up pain disorder. There’s no indication that is 3 psychological in basis. It’s physical in its basis, but it has an impact on her 4 psychological functioning.” Tr. 706. Therefore, this Court finds that the ALJ 5 erred at step two. However, since the Court is remanding the case for an 6 immediate award of benefits at step three based on Plaintiff’s mental impairments, 7 there is no need for additional proceedings to address Plaintiff’s physical 8 impairments at step two. 9 REMEDY 10 Plaintiff repeatedly asks that the Court apply the credit-as-true rule in this 11 case. ECF Nos. 17, 20. The Ninth Circuit has set forth a three part standard for 12 determining when to credit improperly discounted medical opinion evidence as 13 true: (1) the record has been fully developed and further administrative 14 proceedings would serve no purpose; (2) the ALJ has failed to provide legally 15 sufficient reasons for rejecting the evidence in question; and (3) if the improperly 16 discredited evidence were credited as true the ALJ would be required to find 17 Plaintiff eligible for benefits. Garrison, 759 F.3d at 1020. 18 In this case, all three parts of the standard are met. Plaintiff, through her 19 counsel, testified at the hearing that the record as to Plaintiff’s psychological 20 impairments was fully developed. Tr. 680-81 (The outstanding medical evidence 21 pertained to Plaintiff’s physical impairments, and it appears that the records 22 reported as outstanding were submitted after the hearing as exhibits 32F through 23 34F). Second, the ALJ failed to provide legally sufficient reasons to reject 24 Plaintiff’s symptom testimony, and therefore, failed to provide legally sufficient 25 reasons to reject the opinion of Dr. Asher. See supra. Third, Dr. Asher testified 26 that based on Plaintiff’s testimony he found that her impairments met or equaled 27 listings 12.04 and 12.15 in combination. Tr. 708-10. If this evidence were 28 credited as true, the ALJ would be required to find Plaintiff eligible for benefits at ORDER GRANTING PLAINTIFF’S MOTION - 13 1 step three of the sequential evaluation process. As such, this Court remands the 2 case for an immediate award of benefits. CONCLUSION 3 4 Accordingly, IT IS ORDERED: 5 1. 6 7 8 9 10 Defendant’s Motion for Summary Judgment, ECF No. 19, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is GRANTED, and the matter is REMANDED for an immediate award of benefits. 3. Application for attorney fees may be filed by separate motion. The District Court Executive is directed to file this Order and provide a copy 11 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 12 and the file shall be CLOSED. 13 DATED March 5, 2019. 14 15 16 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION - 14

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