Hart v. Commissioner of Social Security, No. 1:2018cv03079 - Document 18 (E.D. Wash. 2019)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 14 ) and denying ECF No. 16 Defendant's Motion for Summary Judgment. File closed. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

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Hart v. Commissioner of Social Security Doc. 18 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON May 06, 2019 SEAN F. MCAVOY, CLERK 7 8 9 MICHAEL H., No. 1:18-CV-03079-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. 14, 16. Attorney D. James Tree represents Michael H. (Plaintiff); Special 18 Assistant United States Attorney Jeffrey R. McClain represents the Commissioner 19 of Social Security (Defendant). The parties have consented to proceed before a 20 magistrate judge. ECF No. 8. After reviewing the administrative record and the 21 briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s Motion for 22 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 23 REMANDS the matter to the Commissioner for additional proceedings pursuant to 24 42 U.S.C. §§ 405(g), 1383(c). 25 JURISDICTION 26 Plaintiff filed an application for Supplemental Security Income (SSI) on 27 January 8, 2014, Tr. 63, alleging disability since June 10, 2013, Tr. 170, due to 28 hepatitis C, arthritis, high blood pressure, chronic lower back pain, and ORDER GRANTING PLAINTIFF’S MOTION - 1 Dockets.Justia.com 1 hypothyroidism, Tr. 193. The application was denied initially and upon 2 reconsideration. Tr. 81-88, 91-97. Administrative Law Judge (ALJ) Ilene Sloan 3 held hearings on April 11, 2016 and June 29, 2016 and heard testimony from 4 Plaintiff and vocational expert Leta Berkshire. Tr. 34-62. The ALJ issued an 5 unfavorable decision on March 1, 2017. Tr. 18-29. The Appeals Council denied 6 review on March 20, 2018. Tr. 1-6. The ALJ’s March 1, 2017 decision became 7 the final decision of the Commissioner, which is appealable to the district court 8 pursuant to 42 U.S.C. §§ 405(g), 1383(c). Plaintiff filed this action for judicial 9 review on May 17, 2018. ECF Nos. 1, 4. STATEMENT OF FACTS 10 The facts of the case are set forth in the administrative hearing transcript, the 11 12 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 13 here. 14 Plaintiff was 50 years old at the date of application. Tr. 170. He completed 15 two years of college in 1983. Tr. 194. His reported work history includes the jobs 16 of forklift operator/truck driver, laborer, and shipping supervisor. Id. When 17 applying for benefits Plaintiff reported that he stopped working on June 10, 2013 18 because of his conditions. Tr. 193. 19 20 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 21 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 22 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 23 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 24 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 25 not supported by substantial evidence or if it is based on legal error. Tackett v. 26 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 27 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 28 another way, substantial evidence is such relevant evidence as a reasonable mind ORDER GRANTING PLAINTIFF’S MOTION - 2 1 might accept as adequate to support a conclusion. Richardson v. Perales, 402 2 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 3 interpretation, the court may not substitute its judgment for that of the ALJ. 4 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 5 findings, or if conflicting evidence supports a finding of either disability or non- 6 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 7 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 8 evidence will be set aside if the proper legal standards were not applied in 9 weighing the evidence and making the decision. Brawner v. Secretary of Health 10 11 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). SEQUENTIAL EVALUATION PROCESS 12 The Commissioner has established a five-step sequential evaluation process 13 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 14 v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of 15 proof rests upon the claimant to establish a prima facie case of entitlement to 16 disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the 17 claimant establishes that physical or mental impairments prevent him from 18 engaging in his previous occupations. 20 C.F.R. § 416.920(a)(4). If the claimant 19 cannot do his past relevant work, the ALJ proceeds to step five, and the burden 20 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 21 other work, and (2) the claimant can perform specific jobs which exist in 22 significant numbers in the national economy. Batson v. Comm’r of Soc. Sec. 23 Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant cannot make an 24 adjustment to other work in the national economy, he is found “disabled.” 20 25 C.F.R. § 416.920(a)(4)(v). 26 ADMINISTRATIVE DECISION 27 On March 1, 2017, the ALJ issued a decision finding Plaintiff was not 28 disabled as defined in the Social Security Act from January 8, 2014 through the ORDER GRANTING PLAINTIFF’S MOTION - 3 1 2 3 4 date of the decision. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since January 8, 2014, the date of application. Tr. 20. At step two, the ALJ determined that Plaintiff had the following severe 5 impairments: cervical spine degenerative disc disease and lumbar spine 6 spondylosis. Tr. 20. 7 At step three, the ALJ found that Plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled the severity of one of 9 the listed impairments. Tr. 22. 10 11 12 13 14 15 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined he could perform a range of light work with the following limitations: [H]e can stand and or walk 4 hours in an 8-hour workday. He can sit 6 hours in an 8-hour workday. He can occasionally climb ladders, ropes, and scaffolds. He is unlimited in his ability to balance. He can frequently stoop, kneel, and crouch. He can occasionally crawl. He must avoid concentrated exposure to vibration and hazards. 16 17 Tr. 22-23. The ALJ identified Plaintiff’s past relevant work as truck 18 operator/forklift operator and shipping supervisor and found that he could not 19 perform this past relevant work. Tr. 27-28. 20 At step five, the ALJ determined that, considering Plaintiff’s age, education, 21 work experience and residual functional capacity, and based on the testimony of 22 the vocational expert, there were other jobs that exist in significant numbers in the 23 national economy Plaintiff could perform, including the jobs of production line 24 solderer, electrical accessories assembler, and office helper. Tr. 28 . The ALJ 25 concluded Plaintiff was not under a disability within the meaning of the Social 26 Security Act from January 8, 2014, through the date of the ALJ’s decision. Tr. 29. 27 ISSUES 28 The question presented is whether substantial evidence supports the ALJ’s ORDER GRANTING PLAINTIFF’S MOTION - 4 1 decision denying benefits and, if so, whether that decision is based on proper legal 2 standards. Plaintiff contends the ALJ erred by (1) failing to consider Plaintiff’s 3 pain disorder at step two, (2) failing to properly weigh medical opinions, (3) failing 4 to make a proper step five determination, and (4) failing to properly weigh 5 Plaintiff’s symptom statements. DISCUSSION1 6 7 1. Step Two 8 Plaintiff argues that the ALJ failed to address Plaintiff’s pain disorder 9 associated with psychological and physical factors at step two. ECF No. 14 at 4-6. 10 At step two of the sequential process, the ALJ must determine whether a 11 claimant suffers from a “severe” impairment. 20 C.F.R. § 416.920(c). To show a 12 severe impairment, the claimant must first establish the existence of a medically 13 determinable impairment by providing medical evidence consisting of signs, 14 symptoms, and laboratory findings; the claimant’s own statement of symptoms, a 15 diagnosis, or a medical opinion is not sufficient to establish the existence of an 16 impairment. 20 C.F.R. § 416.921.2 “[O]nce a claimant has shown that he suffers 17 from a medically determinable impairment, he next has the burden of proving that 18 these impairments and their symptoms affect his ability to perform basic work 19 20 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 21 that ALJs of the Securities and Exchange Commission are “Officers of the United 22 States” and thus subject to the Appointments Clause. To the extent Lucia applies 23 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 24 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 25 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 26 specifically addressed in an appellant’s opening brief). 27 28 2 Prior to March 17, 2017, these requirements were set forth in 20 C.F.R. §416.908, 416.928 (2016). ORDER GRANTING PLAINTIFF’S MOTION - 5 1 activities.” Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001). If the 2 claimant fulfills this burden, the ALJ must find the impairment “severe.” Id. The 3 step-two analysis is “a de minimis screening device used to dispose of groundless 4 claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). At step two, the ALJ found that Plaintiff had no medically determinable 5 6 severe mental health impairment. Tr. 20. She did identify anxiety as a medically 7 determinable impairment, Tr. 20, but found that it was not severe: “claimant’s 8 medically determinable mental impairment of anxiety disorder does not cause 9 more than minimal limitation in the claimant’s ability to perform basic mental 10 work activities and is therefore nonsevere,” Tr. 21. There was no discussion of a 11 pain disorder in the ALJ’s decision. Leslie P. Schneider, Ph.D. diagnosed Plaintiff with pain disorder associated 12 13 with psychological and physical factors on January 13, 2015. Tr. 545. Plaintiff 14 argues that the diagnosis requires the ALJ to address the pain disorder at step two. 15 ECF No. 14 at 4-5. Citing 20 C.F.R. 416.921, Defendant argues that Dr. 16 Schneider’s diagnosis is not sufficient to find any pain disorder medically 17 determinable. ECF No. 16 at 3. While Defendant is accurate that a diagnosis or 18 medical opinion does not establish the existence of an impairment, 20 C.F.R. § 19 416.921, the case is being remanded for additional proceedings. The basis of the 20 remand is the ALJ’s failure to properly address the opinions of medical providers 21 who diagnosed Plaintiff with impairments associated with pain, Tr. 316, 318, 584- 22 85. See infra. Therefore, upon remand, the ALJ will also address any evidence 23 supporting the existence of a pain disorder. 24 2. Medical Opinions 25 Plaintiff argues the ALJ failed to properly consider and weigh the medical 26 opinions expressed by Jeremiah Crank, M.D., Steven Foster, D.O., Myrna Palasi, 27 M.D., William Drenguis, M.D., Leslie Schneider, Ph.D., Dan Donahue, Ph.D., and 28 Olegario Ignacio, Jr., M.D. ECF No. 14 at 5-18. ORDER GRANTING PLAINTIFF’S MOTION - 6 1 In weighing medical source opinions, the ALJ should distinguish between 2 three different types of physicians: (1) treating physicians, who actually treat the 3 claimant; (2) examining physicians, who examine but do not treat the claimant; 4 and, (3) nonexamining physicians who neither treat nor examine the claimant. 5 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 6 weight to the opinion of a treating physician than to the opinion of an examining 7 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 8 should give more weight to the opinion of an examining physician than to the 9 opinion of a nonexamining physician. Id. 10 When an examining physician’s opinion is not contradicted by another 11 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, 12 and when an examining physician’s opinion is contradicted by another physician, 13 the ALJ is only required to provide “specific and legitimate reasons” to reject the 14 opinion. Lester, 81 F.3d at 830-31. The specific and legitimate standard can be 15 met by the ALJ setting out a detailed and thorough summary of the facts and 16 conflicting clinical evidence, stating his interpretation thereof, and making 17 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 18 required to do more than offer his conclusions, he “must set forth his 19 interpretations and explain why they, rather than the doctors’, are correct.” 20 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 21 A. Jeremiah Crank, M.D. 22 On March 6, 2014, Dr. Crank evaluated Plaintiff and completed a Physical 23 Functional Evaluation form for the Washington Department of Social and Health 24 Services (DSHS). Tr. 317-21, 367-70. Dr. Crank diagnosed Plaintiff with back 25 pain/degenerative disc disease with radiculopathy. Tr. 318. He opined that 26 Plaintiff had a marked limitation in the following basic work activities: sitting, 27 standing, walking, lifting, carrying, handling, pushing, pulling, reaching, stooping, 28 and crouching. Id. He opined that Plaintiff was capable of sedentary work in a ORDER GRANTING PLAINTIFF’S MOTION - 7 1 regular predictable manner despite his impairment. Tr. 319. The ALJ gave the 2 opinion that Plaintiff was limited to sedentary work little weight because Dr. Crank 3 “did not have the benefit of objective imaging.” Tr. 26. 4 First, Plaintiff challenges the ALJ’s treatment of the opinion by asserting 5 that the ALJ only rejected the limitation to sedentary work and failed to address the 6 marked limitation in the abilities to handle, push, pull, reach, stoop, and crouch. 7 ECF No. 14 at 7-8. Social Security Ruling (S.S.R.) 96-8p states that the residual 8 functional capacity assessment “must always consider and address medical source 9 opinions. If the [residual functional capacity] assessment conflicts with an opinion 10 from a medical source, the adjudicator must explain why the opinion was not 11 adopted.” Here, Dr. Crank’s opinion addressed Plaintiff’s ability to handle, push, 12 pull, reach, stoop, and crouch, Tr. 318, but the ALJ’s decision only addressed the 13 limitation to sedentary work, Tr. 26. The ALJ’s residual functional capacity 14 determination addressed limitations in stooping and crouching, but failed to 15 address handling, pushing, pulling, and reaching. Tr. 22-23. Therefore, the ALJ 16 failed to properly address all of Dr. Crank’s opinion. This was an error. 17 Second, Plaintiff challenges the ALJ’s rejection of Dr. Crank’s opinion by 18 asserting that the ALJ failed to address the factors listed in 20 C.F.R. § 416.927. 19 ECF No. 14 at 8. Defendant argues that the ALJ’s rationale for rejecting the 20 limitation to sedentary work, that the provider did not review the imaging reports, 21 demonstrates that the ALJ considered the factors set forth in 20 C.F.R. § 416.927. 22 ECF No. 16 at 13. One of the factors the ALJ is to consider is supportability: “The 23 more a medical source presents relevant evidence to support a medical opinion, 24 particularly medical signs and laboratory findings, the more weight we will give 25 that medical opinion.” 20 C.F.R. § 416.927(c)(3). Therefore, the ALJ’s reason for 26 rejecting the limitation to sedentary work shows she considered the factors under 27 20 C.F.R. § 416.927. 28 Third, Plaintiff argues that the ALJ’s determination that Dr. Crank did not ORDER GRANTING PLAINTIFF’S MOTION - 8 1 review imaging was not supported by substantial evidence. ECF No. 14 at 10 2 (“Given that Dr. Crank was [Plaintiff’s] primary care provider (e.g. Tr. 357), it is 3 also highly likely Dr. Crank at least reviewed the reference imaging.”). In the 4 March 6, 2014 evaluation report, Dr. Crank stated that Plaintiff reported that he 5 had degenerative disc disease present on his imaging. Tr. 367. However, later in 6 the report, Dr. Crank stated that he followed up with Dr. Lyzencheck at Quality 7 Care in Yakima, who Dr. Crank identified as Plaintiff’s primary care physician, 8 and learned that two years ago imaging of the lower back showed degenerative 9 disc disease/impingement in nerves. Id. The record is unclear as to whether Dr. 10 Crank actually reviewed the imaging reports or simply spoke with Dr. Lyzencheck. 11 The Court recognizes that the responsibility of resolving ambiguities lies with the 12 ALJ. Andrews, 53 F.3d at 1039. However, because the ALJ failed to address the 13 opinion in full, a remand is required. Upon remand, the ALJ will consider all the 14 factors set forth in 20 C.F.R. § 416.927 and consider Dr. Crank’s follow-up with 15 Dr. Lyzencheck when addressing the opinion. 16 B. 17 On January 8, 2015, Dr. Foster evaluated Plaintiff and completed a Physical 18 Functional Evaluation form for DSHS. Tr. 584-88. Dr. Foster diagnosed Plaintiff 19 with lumbago and opined that he had a moderate to marked limitation in the 20 following basic work activities: sitting, standing, walking, lifting, carrying, 21 handling, pushing, pulling, reaching, stooping, and crouching. Tr. 585. He then 22 opined that Plaintiff was capable of performing sedentary work in a regular 23 predictable manner despite his impairment. Tr. 586. The ALJ gave the opinion 24 that Plaintiff was limited to sedentary work little weight because Dr. Foster “did 25 not have the benefit of objective imaging.” Tr. 26. 26 Steven Foster, D.O. First, Plaintiff challenges the ALJ’s treatment of Dr. Foster’s opinion by 27 asserting that she failed to address the full opinion. ECF No. 14 at 7-8. S.S.R. 96- 28 8p states that the residual functional capacity assessment “must always consider ORDER GRANTING PLAINTIFF’S MOTION - 9 1 and address medical source opinions. If the [residual functional capacity] 2 assessment conflicts with an opinion from a medical source, the adjudicator must 3 explain why the opinion was not adopted.” Here, like Dr. Crank’s opinion, Dr. 4 Foster’s opinion addressed Plaintiff’s ability to handle, push, pull, reach, stoop, 5 and crouch, Tr. 318, but the ALJ’s decision only addressed the limitation to 6 sedentary work, Tr. 26. The ALJ’s residual functional capacity determination 7 addressed limitations in the ability to stoop and crouch, but failed to address any 8 limitations in handling, pushing, pulling, and reaching. Tr. 22-23. Therefore, the 9 ALJ failed to properly address all of Dr. Foster’s opinion. This is an error. 10 Second, Plaintiff challenges the ALJ’s rejection of Dr. Foster’s opinion by 11 asserting that the ALJ failed to address the factors listed in 20 C.F.R. § 416.927. 12 ECF No. 14 at 8. Defendant argues that the ALJ’s rationale for rejecting the 13 limitation to sedentary work, that the provider did not review the imaging reports, 14 demonstrates that the ALJ considered the factors set forth in 20 C.F.R. § 416.927. 15 ECF No. 16 at 13. As addressed above, one of the factors the ALJ is to consider is 16 supportability: “The more a medical source presents relevant evidence to support a 17 medical opinion, particularly medical signs and laboratory findings, the more 18 weight we will give that medical opinion.” 20 C.F.R. § 416.927(c)(3). Therefore, 19 the ALJ’s reason for rejecting the limitation to sedentary work shows she 20 considered the factors set forth in 20 C.F.R. § 416.927. 21 Third, Plaintiff argues that the ALJ’s determination that Dr. Foster did not 22 review imaging was not supported by substantial evidence. ECF No. 14 at 9. On 23 May 16, 2014, Dr. Foster ordered new x-rays of the lower spine. Tr. 361. 24 However, there is no evidence that these x-rays were taken. On August 5, 2014 25 Dr. Hurtarte stated that Plaintiff was referred to him by Dr. Foster. Tr. 441. Dr. 26 Hurtarte had the April 26, 2014 x-ray of the lumbar spine, an MRI of the lumbar 27 spine from 2012, and a February 28, 2012 CT of the cervical spine to review. Tr. 28 442-43. Defendant asserts that because Dr. Foster referred Plaintiff to Dr. ORDER GRANTING PLAINTIFF’S MOTION - 10 1 Hurtarte, the fact that Dr. Hurtarte had the imaging results is evidence that Dr. 2 Foster had the imaging results. ECF No. 14 at 9. The evidence surrounding 3 whether Dr. Foster reviewed the imaging reports prior to penning the opinion is 4 unclear. Again, the responsibility of resolving ambiguities lies with the ALJ. 5 Andrews, 53 F.3d at 1039. However, the case is remanded for the ALJ to address 6 Dr. Foster’s entire opinion. 7 C. 8 On March 12, 2014, Dr. Palasi reviewed records from Yakima 9 Myrna Palasi, M.D. Neighborhood Health and opined that Plaintiff was limited to sedentary work with 10 marked limitations in gross or fine motor skills restrictions and postural 11 restrictions. Tr. 315. The ALJ did not discuss Dr. Palasi’s opinion in her decision 12 Tr. 26-27. The residual functional capacity assessment “must always consider and 13 address medical source opinions. If the [residual functional capacity] assessment 14 conflicts with an opinion from a medical source, the adjudicator must explain why 15 the opinion was not adopted.” S.S.R. 96-8p. Therefore, the ALJ’s failure to 16 address Dr. Palasi’s opinion was an error. 17 Defendant argues that the ALJ addressed Dr. Palasi’s opinion by listing 18 Exhibit 4F when discussing Dr. Crank’s opinion. ECF No. 16 at 14. Exhibit 4F 19 includes both Dr. Palasi’s opinion and Dr. Crank’s opinion. Tr. 313-23. Dr. 20 Palasi’s opinion is similar to Dr. Crank’s opinion; however, the ALJ failed to 21 properly address all of Dr. Crank’s opinion. Simply because two doctors’ 22 conclusions are the same does not mean that both doctors reviewed the same 23 evidence or employed the same reasoning. Therefore, the ALJ must discuss Dr. 24 Palasi’s opinion on remand. 25 D. Remaining Medical Opinions 26 Plaintiff also challenges the ALJ treatment of the opinions from William 27 Drenguis, M.D., Leslie Schneider, Ph.D., Dan Donahue, Ph.D., and Olegario 28 Ignacio, Jr., M.D. ECF No. 14 at 16-18. Since the case is being remanded for the ORDER GRANTING PLAINTIFF’S MOTION - 11 1 ALJ to properly address the opinions of Dr. Crank, Dr. Foster, and Dr. Palasi, the 2 ALJ will readdress all the medical source opinions on remand. 3 3. Step 5 Plaintiff challenges the ALJ’s step five determination by asserting that the 4 5 vocational expert’s testimony was inconsistent with Job Browser Pro, a computer 6 program used in the industry to provide numbers for jobs associated with the 7 Dictionary of Occupations Title (DOT) codes identified in steps four and five. 8 ECF No. 14 at 18-20. Plaintiff’s counsel submits print-outs from Job Browser Pro 9 for the positions identified by the ALJ at step five and asserts that the vocational 10 expert overreported the number of jobs available under each DOT code. ECF Nos. 11 14 at 18-20, 14-1. This case is being remanded for the ALJ to readdress the medical source 12 13 opinions in the record. This will require the ALJ to make a new residual functional 14 capacity determination followed by new determinations at steps four and five. 15 Therefore, the ALJ will call a new vocational expert to testify at remand 16 proceedings that will be subject to cross examination by Plaintiff’s counsel. 17 4. 18 19 Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s determination that Plaintiff’s symptom statements were not supported in the record. ECF No. 14 at 20-21. 20 The evaluation of a claimant’s symptom statements and their resulting 21 limitations relies, in part, on the assessment of the medical evidence. See 20 22 C.F.R. § 416.929(c); S.S.R. 16-3p. Therefore, in light of the case being remanded 23 for the ALJ to readdress the medical source opinions in the file, a new assessment 24 of Plaintiff’s subjective symptom statements will be necessary. 25 26 27 28 REMEDY Plaintiff asks the Court to apply the credit-as-true rule and remand this case for an immediate award of benefits. ECF No. 14 at 11. The decision whether to remand for further proceedings or reverse and ORDER GRANTING PLAINTIFF’S MOTION - 12 1 award benefits is within the discretion of the district court. McAllister v. Sullivan, 2 888 F.2d 599, 603 (9th Cir. 1989). Under the credit-as-true rule, where (1) the 3 record has been fully developed and further administrative proceedings would 4 serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 5 for rejecting evidence, whether claimant testimony or medical opinion; and (3) if 6 the improperly discredited evidence were credited as true, the ALJ would be 7 required to find the claimant disabled on remand, the Court remands for an award 8 of benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). But where 9 there are outstanding issues that must be resolved before a determination can be 10 made, and it is not clear from the record that the ALJ would be required to find a 11 claimant disabled if all the evidence were properly evaluated, remand is 12 appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 13 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 14 In this case, it is not clear from the record that the ALJ would be required to 15 find Plaintiff disabled if all the evidence were properly evaluated. Further 16 proceedings are necessary for the ALJ to properly address Plaintiff’s alleged pain 17 disorder at step two, to properly consider all the medical opinions in the record, to 18 properly consider Plaintiff’s symptom statements, to make a new residual 19 functional capacity determination, and to make a new determination at steps four 20 and five. Additionally, the ALJ will supplement the record with any outstanding 21 evidence and call a medical expert and a vocational expert to testify at a remand 22 hearing. CONCLUSION 23 24 Accordingly, IT IS ORDERED: 25 1. 26 27 28 Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED, in part, and the matter is REMANDED for additional proceedings ORDER GRANTING PLAINTIFF’S MOTION - 13 1 consistent with this Order. 2 3. Application for attorney fees may be filed by separate motion. 3 The District Court Executive is directed to file this Order and provide a copy 4 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 5 and the file shall be CLOSED. 6 DATED May 6, 2019. 7 8 9 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION - 14

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