Waheneka v. Commissioner of Social Security, No. 1:2018cv03134 - Document 17 (E.D. Wash. 2019)

Court Description: ORDER Granting, in Part, 14 Plaintiff's Motion for Summary Judgment and Remanding for Additional Proceedings; denying 15 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)

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Waheneka v. Commissioner of Social Security Doc. 17 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 5 May 21, 2019 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 8 9 10 GERALD W., No. 1:18-CV-03134-JTR Plaintiff, 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 14, 15. Attorney D. James Tree represents Gerald W. (Plaintiff); Special 19 Assistant United States Attorney Franco L. Becia represents the Commissioner of 20 Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 6. After reviewing the administrative record and the 22 briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s Motion for 23 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 24 REMANDS the matter to the Commissioner for additional proceedings pursuant to 25 42 U.S.C. § 405(g). 26 JURISDICTION 27 Plaintiff filed applications for Disability Insurance Benefits and 28 Supplemental Security Income on August 26, 2014, alleging disability since ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 August 1, 2014, due to seizures. Tr. 85, 211-25, 239. The applications were 2 denied initially and upon reconsideration. Tr. 113-16, 119-23. Administrative 3 Law Judge (ALJ) Glenn Meyers held a hearing on May 16, 2017, Tr. 34-82, and 4 issued an unfavorable decision on October 3, 2017, Tr. 15-27. The Appeals 5 Council denied Plaintiff’s request for review on June 15, 2018. Tr. 1-6. The 6 ALJ’s October 2017 decision thus became the final decision of the Commissioner, 7 which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff 8 filed this action for judicial review on July 26, 2018. ECF No. 1, 4. 9 STATEMENT OF FACTS 10 Plaintiff was born in 1985 and was 28 years old as of the alleged onset date. 11 Tr. 25. He graduated from high school. Tr. 362. His primary work history was as 12 a janitor at a school and working at a saw mill. Tr. 54-61, 77. 13 Plaintiff began having seizures in the fifth grade. Tr. 343. In 2007 he 14 underwent a left temporal lobectomy with left corticography to treat his medically 15 intractable seizures. Tr. 388. In his application materials and at the hearing, 16 Plaintiff reported that he continued to experience a few grand mal seizures each 17 year and had small seizures a few times per week. Tr. 67, 255, 361, 498. He has 18 never moved out of his mother’s home or lived independently. Tr. 72, 361. 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 ALJ’s determinations of law are reviewed de novo, with 23 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 24 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 25 only if it is not supported by substantial evidence or if it is based on legal error. 26 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 27 defined as being more than a mere scintilla, but less than a preponderance. Id. at 28 1098. Put another way, substantial evidence is such relevant evidence as a ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2 1 reasonable mind might accept as adequate to support a conclusion. Richardson v. 2 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 3 rational interpretation, the Court may not substitute its judgment for that of the 4 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 5 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 6 administrative findings, or if conflicting evidence supports a finding of either 7 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 8 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 9 supported by substantial evidence will be set aside if the proper legal standards 10 were not applied in weighing the evidence and making the decision. Brawner v. 11 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 12 13 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 14 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 15 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 16 four, the burden of proof rests upon the claimant to establish a prima facie case of 17 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 18 met once a claimant establishes that a physical or mental impairment prevents the 19 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 20 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 21 to step five, and the burden shifts to the Commissioner to show that (1) the 22 claimant can make an adjustment to other work; and (2) specific jobs which the 23 claimant can perform exist in the national economy. Batson v. Commissioner of 24 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 25 an adjustment to other work in the national economy, the claimant will be found 26 disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 27 ADMINISTRATIVE DECISION 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 1 2 3 4 On October 3, 2017, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since August 1, 2014, the alleged onset date. Tr. 18. 5 At step two, the ALJ determined Plaintiff had the following severe 6 impairments: epilepsy/seizure disorder and neurocognitive disorder. Id. 7 At step three, the ALJ found 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. 18-19. 10 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 11 Plaintiff could perform work at all exertional levels with the following non- 12 exertional limitations: 13 14 15 16 17 18 19 20 21 The claimant is capable of unskilled, repetitive, routine tasks in 2 hour increments. He can have superficial, incidental contact with the public. He is capable of working in proximity to but not in coordination with coworkers. He can have occasional contact with supervisors. He cannot work at any height or in close proximity to hazardous conditions. Tr. 19. At step four, the ALJ found Plaintiff was not able to perform his past relevant work as a janitor or lumber straightener. Tr. 25. At step five, the ALJ determined that, based on the testimony of the 22 vocational expert, and considering Plaintiff’s age, education, work experience, and 23 RFC, Plaintiff was capable of making a successful adjustment to other work that 24 existed in significant numbers in the national economy, including the jobs of 25 industrial cleaner, kitchen helper, and laundry worker II. Tr. 25-26. 26 The ALJ thus concluded Plaintiff was not under a disability within the 27 meaning of the Social Security Act at any time from August 1, 2014, the alleged 28 onset date, through the date of the ALJ’s decision, October 3, 2017. Tr. 26-27. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 1 ISSUES 2 The question presented is whether substantial evidence supports the ALJ’s 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. 5 Plaintiff contends the ALJ erred by (1) failing to allow the claim when the 6 RFC compelled a finding of disability; (2) not properly assessing Listing 11.02B; 7 (3) improperly rejecting the opinion evidence;1 (4) not fully crediting Plaintiff’s 8 subjective complaints; and (5) failing to order an updated neuropsychological 9 evaluation. DISCUSSION2 10 11 12 1. Medical opinion evidence Plaintiff argues the ALJ erred by failing to properly consider the medical 13 opinion evidence of record. ECF No. 14 at 7-13. Plaintiff specifically asserts the 14 ALJ erred by assigning significant weight to Dr. Sawyer’s opinion, but then failing 15 to adopt all assessed limitations; and in giving only some or little weight to Dr. 16 Cline and Dr. Mitchell. Id. 17 18 In a disability proceeding, the courts distinguish among the opinions of three types of acceptable medical sources: treating physicians, physicians who examine 19 20 21 22 1 For clarity, the Court has addressed the assessment of the medical opinion evidence and the third party evidence under separate headings. 2 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, IN PART, PLAINTIFF’S MOTION . . . - 5 1 but do not treat the claimant (examining physicians) and those who neither 2 examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 3 F.3d 821, 830 (9th Cir. 1996). A treating physician’s opinion carries more weight 4 than an examining physician’s opinion, and an examining physician’s opinion is 5 given more weight than that of a nonexamining physician. Benecke v. Barnhart, 6 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. 7 In weighing the medical opinion evidence, an ALJ must make findings 8 setting forth specific, legitimate reasons for the assessment that are based on 9 substantial evidence in the record. Magallanes v. Bowen, 881 F.2d 747, 751 (9th 10 Cir. 1989). The ALJ must also set forth the reasoning behind his or her decisions 11 in a way that allows for meaningful review. Brown-Hunter v. Colvin, 806 F.3d 12 487, 492 (9th Cir. 2015) (finding a clear statement of the agency’s reasoning is 13 necessary because the Court can affirm the ALJ’s decision to deny benefits only on 14 the grounds invoked by the ALJ). 15 A. Dr. Sawyer 16 Plaintiff attended a consultative psychological exam with Dr. Greg Sawyer 17 in March 2015. Tr. 342-48. Dr. Sawyer reviewed Plaintiff’s function report and 18 seizure questionnaire, and conducted a clinical interview and mental status exam. 19 Id. He concluded that Plaintiff did not have a psychiatric impairment, but clearly 20 had a memory impairment that appeared to be neurological in nature. Tr. 347. In 21 terms of functional assessment, Dr. Sawyer concluded Plaintiff would not have 22 difficulty managing funds, performing simple and repetitive tasks, or engaging in 23 effective social interactions. Tr. 348. However, Dr. Sawyer opined Plaintiff would 24 have difficulty in the following areas: performing detailed and complex tasks; 25 accepting instructions from supervisors; understanding, carrying out, and 26 remembering one or two-step instructions; performing work activities on a 27 consistent basis without special or additional instruction; sustaining concentration 28 and persisting in work-related activity at a reasonable pace; maintaining regular ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 1 attendance in the workplace; completing a normal workday or workweek without 2 interruptions; and dealing with the usual stresses encountered in the workplace. Id. 3 The ALJ gave significant weight to Dr. Sawyer’s opinion that Plaintiff was 4 able to perform simple and repetitive tasks. Tr. 23. He gave lesser weight to the 5 portions of the opinion that Plaintiff did not have difficulty with social interaction 6 and would have difficulty maintaining regular attendance. Id. With respect to 7 attendance, the ALJ stated: “as he commented, the claimant has experienced 8 difficulty finding a job because his car is broken. The inference is that with 9 reliable transportation the claimant can work.” Tr. 23-24. 10 Plaintiff argues the ALJ erred in failing to offer any reasons for not crediting 11 the remainder of the opinion. ECF No. 14 at 8-11. Defendant asserts that the ALJ 12 was not required to offer any further explanation because Dr. Sawyer did not 13 assess any specific work-related limitations, and thus the rest of the opinion was 14 not significant or probative. ECF No. 15 at 11-12. 15 An ALJ is required to explain why “significant probative evidence has been 16 rejected.” Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Here, the 17 ALJ addressed portions of Dr. Sawyer’s opinion, and gave some significant 18 weight, and others lesser weight. By not including limitations in the RFC to 19 account for all of Dr. Sawyer’s opinion, the ALJ effectively rejected portions of the 20 opinion. This rejection was not explained. The Court finds the remainder of Dr. 21 Sawyer’s opinion to be significant and probative of Plaintiff’s ability to work, and 22 thus must be addressed by the ALJ on remand. 23 B. Drs. Cline and Mitchell 24 Plaintiff contends the ALJ failed to give valid reasons for rejecting the 25 26 opinions from Dr. Cline and Dr. Mitchell. ECF No. 14 at 11-13. Dr. Rebecca Cline conducted an exam for the Department of Social and 27 Human Services in April 2016. Tr. 361-65. She diagnosed Plaintiff with an 28 unspecified neurocognitive disorder, possibly due to his seizure disorder, and an ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 1 unspecified depressive disorder. Tr. 362. She noted mild vague symptoms of 2 depression and moderate to marked communication problems. Id. In terms of 3 functional limitations, she found moderate limitations in Plaintiff’s ability to: 4 understand, remember, and persist in tasks by following detailed instructions; 5 make simple work-related decisions; be aware of normal hazards and take 6 appropriate precautions; ask simple questions or request assistance; communicate 7 and perform effectively in a work setting; complete a normal work day and work 8 week without interruptions from psychologically based symptoms; and set realistic 9 goals and plan independently. Tr. 363. She rated the overall severity of Plaintiff’s 10 11 impairments as moderate.3 Id. Two weeks later, Dr. Melanie Mitchell reviewed Dr. Cline’s report, along 12 with an exam done in 2005, and agreed with the diagnoses and functional 13 limitations assessed by Dr. Cline. Tr. 366. Dr. Mitchell indicated that the 14 diagnosis was supported by the available objective medical evidence and the 15 narrative report supported the functional limitations. Id. Based on her review of 16 the additional records, Dr. Mitchell concluded Plaintiff was likely to remain 17 impaired for at least 24 months, “due to chronic mental health impairments 18 (cognitive in particular), very poor prognosis for gainful employment and likely 19 need for long-term resources.” Id. 20 The ALJ gave Dr. Cline’s opinion some weight, but gave the following 21 reasons for not giving it more weight: (1) the exam contained inconsistent test 22 scores regarding malingering; (2) Dr. Cline stated Plaintiff might be impaired for 23 just 6 months; and (3) she did not address how Plaintiff had previously been able to 24 perform his past relevant work. Tr. 24. The ALJ gave Dr. Mitchell’s opinion little 25 weight because Plaintiff had sustained substantial gainful employment in the past 26 27 28 3 The form Dr. Cline completed defined “moderate” as “significant limits on the ability to perform one or more basic work activity.” Tr. 363. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 1 and because Dr. Mitchell did not examine Plaintiff and relied partly on Dr. Cline’s 2 opinion. Id. The ALJ’s rejections are not based on substantial evidence. 3 Dr. Cline did not indicate that the validity testing she administered was 4 inconsistent. Tr. 362. She stated: “Claimant completed a Rey at the outset of 5 today’s assessment. His score of 8 indicated a below average level of effort and did 6 not provide necessary evidence of non-malingering, so he was also given a 7 TOMM. His score of 48 on the first trial indicates an excellent level of effort and 8 provides evidence of non-malingering at this time.” Id. Dr. Cline expressed no 9 concerns with respect to validity and arrived at the conclusions she did based on 10 the evidence she obtained. Tr. 361-65. Furthermore, Dr. Mitchell indicated Dr. 11 Cline’s assessment was supported by the objective medical evidence and Dr. 12 Cline’s narrative report. Tr. 366. The ALJ’s interpretation is not supported by 13 substantial evidence. 14 The ALJ failed to accurately discuss Dr. Cline’s comments on duration. Dr. 15 Cline’s full statement was: “6 [months], but possibly much longer.” Tr. 364. The 16 ALJ also failed to acknowledge at all Dr. Mitchell’s opinion that the duration of 17 Plaintiff’s impairment would be much longer. Tr. 24. Finally, Plaintiff last worked in 2013. Tr. 39, 304. His alleged onset date is 18 19 August 1, 2014 due to worsening of his condition after he stopped working. Tr. 20 39-40. An ability to work more than three years prior to Dr. Cline’s exam, before 21 Plaintiff was alleging disability, is not relevant to the reliability of the assessment. The ALJ failed to offer legally sufficient reasons for disregarding these 22 23 opinions. On remand, the ALJ shall reassess the entire medical record, and 24 reformulate the RFC. 25 2. 26 27 Third party Gaylynn Waheneka Plaintiff argues the ALJ erred in his partial rejection of Plaintiff’s mother’s testimony. ECF No. 14 at 13-15. 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 Lay witness testimony is “competent evidence” as to “how an impairment 1 2 affects [a claimant’s] ability to work.” Stout v. Comm’r, Soc. Sec. Admin., 454 3 F.3d 1050, 1053 (9th Cir. 2006); see also Dodrill v. Shalala, 12 F.3d 915, 918-19 4 (9th Cir. 1993) (“[F]riends and family members in a position to observe a 5 claimant’s symptoms and daily activities are competent to testify as to her 6 condition.”). An ALJ must give “germane” reasons to discount evidence from 7 these “other sources.” Dodrill, 12 F.3d at 919. The ALJ gave “some weight” to Ms. Waheneka’s testimony, but stated “the 8 9 persuasiveness of her opinion is reduced however, because although she opines 10 that her son has difficulty remembering how to do things, this does not explain 11 how he was able to keep 2 paid jobs for substantial periods of time.” Tr. 24. As noted above, a claimant’s ability to work prior to his alleged onset date, 12 13 barring more analysis, is not relevant to his ability to work after he alleges his 14 disability began. On remand, the ALJ will reconsider all evidence in reassessing 15 the RFC. 16 3. 17 18 Plaintiff’s subjective complaints Plaintiff contends the ALJ erred by improperly rejecting his subjective complaints. ECF No. 14 at 15-20. 19 It is the province of the ALJ to make credibility determinations. Andrews v. 20 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 21 supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 22 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 23 medical impairment, the ALJ may not discredit testimony as to the severity of an 24 impairment merely because it is unsupported by medical evidence. Reddick v. 25 Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of 26 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 27 “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 28 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General findings are ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10 1 insufficient: rather the ALJ must identify what testimony is not credible and what 2 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 3 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The ALJ concluded Plaintiff’s medically determinable impairments could 4 5 reasonably be expected to cause some of his alleged symptoms; however, 6 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 7 those symptoms were not entirely consistent with the medical and other evidence 8 of record. Tr. 22. The ALJ listed the following reasons for finding Plaintiff’s 9 subjective complaints not persuasive in this case: (1) the evidence was 10 inconsistent about whether, and to what extent, Plaintiff continued to have 11 seizures; (2) Plaintiff alleged difficulty understanding people when they talk to 12 him, but was able to answer questions throughout his hearing without notable 13 difficulty; (3) Plaintiff continued to drive despite alleging a disabling seizure 14 disorder; and (4) Plaintiff testified he would be able to perform his prior jobs if 15 they were offered to him. Tr. 22-23. This matter is being remanded for additional proceedings to remedy errors in 16 17 the ALJ’s evaluation of the medical opinion evidence of record. The ALJ shall 18 also evaluate Plaintiff’s statements and testimony with the benefit of the 19 reconsidered medical evidence. The ALJ shall reassess what statements, if any, are 20 not consistent with the medical evidence and other evidence in the record, and 21 what specific evidence undermines those statements. 22 4. 23 Step three findings Plaintiff argues the ALJ erred in the step three determination by failing to 24 evaluate the specific requirements of Listing 11.02B and making only boilerplate 25 findings that the listing was not met. ECF No. 14 at 6-7. 26 A claimant is considered disabled at step three when his impairment meets 27 the durational requirement and his impairments meet or equal a listed impairment 28 in Appendix 1. 20 C.F.R. §§ 404.1520(d), 416.920(d). “An ALJ must evaluate the ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11 1 relevant evidence before concluding that a claimant’s impairments do not meet or 2 equal a listed impairment. A boilerplate finding is insufficient to support a 3 conclusion that a claimant’s impairment” does not meet or equal a listed 4 impairment. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). However, the ALJ 5 is not required to state why a claimant fails to satisfy every criteria of the listing if 6 they adequately summarize and evaluate the evidence. See Gonzalez v. Sullivan, 7 914 F.2d 1197, 1200-01 (9th Cir.1990); Lewis, 236 F.3d at 512. 8 9 At step three the ALJ found “the severity of the claimant’s mental impairment does not meet or medically equal the criteria of any of the listings in 10 11.00 and/or 12.00.” Tr. 18. The ALJ went on to discuss the detailed 11 requirements of Listing 12.00 and the relevant “B criteria,” but made no findings 12 as to why Listing 11.02 for epilepsy was not satisfied. Tr. 18-19. 13 To meet Listing 11.02B, an individual must have “epilepsy, documented by 14 a detailed description of a typical seizure and characterized by . . . (B) dyscognitive 15 seizures, occurring at least once a week for at least 3 consecutive months despite 16 adherence to prescribed treatment.” 20 C.F.R. Part 404, Subpart P, Appendix 1, 17 11.02B. Dyscognitive seizures “are characterized by alteration of consciousness 18 without convulsions or loss of muscle control. During the seizure, blank staring, 19 change of facial expression, and automatisms (such as lip smacking, chewing or 20 swallowing, or repetitive simple actions, such as gestures or verbal utterances) may 21 occur.” Id. at 11.00H1b. Adherence to prescribed treatment means the individual 22 takes medication or follows other treatment procedures as prescribed by a 23 physician for three consecutive months. Id. at 11.00C. 24 The record fails to establish any plausible argument that the listing was met 25 or equaled. Lewis, 236 F.3d at 514. The record contains no detailed description of 26 Plaintiff’s typical seizure activity approaching the definition of dyscognitive 27 seizures in the listing. Plaintiff has described his seizures as feeling faint or dizzy, 28 or as if there is a magnet in his brain. Tr. 44-45, 498. He has not indicated that ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12 1 these “small” seizures result in any alteration of consciousness. Id. Furthermore, 2 Plaintiff’s testimony regarding the frequency of these seizures does not reach 3 listing level. Tr. 45. Finally, the consultative examiner indicated medication was 4 effective. Tr. 343 (“He is now taking Dilantin and Phenytoin and his seizures 5 appear to be generally controlled.”).4 Due to the lack of evidence supporting a 6 finding that Listing 11.02B is met or equaled, the ALJ did not err at step three. 7 5. 8 9 Step five findings Plaintiff asserts the ALJ’s RFC determination and the vocational expert testimony compel a finding of disability at step five due to the limitation on 10 supervisor contact. ECF No. 14 at 5-6. He argues the vocational expert testified 11 that training periods often require more than occasional contact with supervisors, 12 which exceeds Plaintiff’s RFC, thus rendering him unemployable. Id. 13 Plaintiff’s argument is without merit. The vocational expert’s testimony was 14 that an individual limited to the established RFC, including occasional supervisor 15 contact, would be capable of performing the jobs identified at step five. Tr. 77-78. 16 17 4 The record also indicates that Plaintiff’s medication use has not been 18 consistent. See Tr. 241 (Plaintiff listed no current medications on his Adult 19 Disability Report), 252 (Plaintiff listed Phenytoin and Dilantin as medications, but 20 indicated he was not currently taking them), 266 (Plaintiff indicated taking no 21 medications), 276 (Plaintiff’s mother indicated he used to take medication but it 22 caused unusual behavior), 361 (Plaintiff told Dr. Cline he was not taking 23 medication for his seizures), 498-500 (treating neurologist stated “Patient has been 24 non-compliant with medications since surgery” and began a trial of Keppra); but 25 see 256 (Plaintiff stated he was not currently taking any medication, then 26 immediately below on the same form stated he took them every day and had been 27 doing so for seven years), 284 (Plaintiff stated he was currently taking Dilantin and 28 Depakote); 306 (Plaintiff stated he was currently taking Phenytoin and Dilantin). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 13 1 Her testimony regarding training periods was in response to Plaintiff’s 2 representative’s question regarding an individual that would have difficulty 3 communicating and would need three times the length of a normal training period: 4 VE: I believe that might be problematic, depending on the employer and their tolerance for repeating. Within the training period it is common to have up to frequent contact with the applicant and have repeated instructions. If after the training period is done, if they’re continuing to need training, then there’s a more likelihood that that employer would likely terminate that worker. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tr. 80. The vocational expert’s testimony does not establish that the RFC compels a finding of disability. 6. Updated consultative exam Plaintiff argues the ALJ erred in failing to order an updated neuro- psychological evaluation. ECF No. 14 at 20-21. Plaintiff asserts that since the last exam was done over a decade before the hearing and prior to Plaintiff’s brain surgery, further development of the record was necessary. Id. An ALJ has a duty to ensure that the administrative record is fully and fairly developed. 20 C.F.R. §§ 404.1512(b), 416.912(b); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). Under certain circumstances, an ALJ may order a consultative exam, such as when a medical source cannot or will not provide sufficient medical evidence about a claimant’s condition. 20 C.F.R. §§ 404.1517, 416.917. However, the obligation to develop the record is not unlimited, and “is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). While Dr. Cline stated that intellectual and cognitive testing would be useful to determine the cause of Plaintiff’s communication difficulties, she did not indicate that she was unable to offer an opinion on his functional abilities based on ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 14 1 the assessment she performed. Tr. 364. Similarly, Dr. Sawyer indicated that 2 Plaintiff’s condition was likely more neurological than psychological, but still 3 offered a functional assessment based on the exam. Tr. 347. The evidence here 4 was not ambiguous or inadequate to allow the ALJ to evaluate the claim. 5 Therefore, the ALJ did not err in denying Plaintiff’s request for additional testing. CONCLUSION 6 7 Plaintiff argues the ALJ’s decision should be reversed and remanded for the 8 payment of benefits. The Court has the discretion to remand a case for additional 9 evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 10 (9th Cir. 1996). The Court may award benefits if the record is fully developed and 11 further administrative proceedings would serve no useful purpose. Id. Remand is 12 appropriate when additional administrative proceedings could remedy defects. 13 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 14 finds that further development is necessary for a proper determination to be made. 15 The ALJ’s RFC determination is not supported by substantial evidence and 16 must be reevaluated. On remand, the ALJ shall reassess the medical evidence, 17 specifically the opinions of Drs. Sawyer, Cline, and Mitchell. The ALJ shall 18 reevaluate Plaintiff’s subjective complaints and the testimony of the third-party, 19 formulate a new RFC, obtain supplemental testimony from a vocational expert, if 20 necessary, and take into consideration any other evidence or testimony relevant to 21 Plaintiff’s disability claim. 22 Accordingly, IT IS ORDERED: 23 1. 24 25 26 27 28 Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED, IN PART. 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 15 1 4. An application for attorney fees may be filed by separate motion. 2 The District Court Executive is directed to file this Order and provide a copy 3 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 4 the file shall be CLOSED. 5 IT IS SO ORDERED. 6 DATED May 21, 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, IN PART, PLAINTIFF’S MOTION . . . - 16

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