McDaneld v. Commissioner of Social Security, No. 1:2018cv03135 - Document 17 (E.D. Wash. 2019)

Court Description: ORDER GRANTING, IN PART, 11 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS; denying 15 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (AN, Courtroom Deputy)

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McDaneld v. Commissioner of Social Security Doc. 17 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 Jun 18, 2019 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 ROBERT M., No. 1:18-cv-03135-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. 11, 15. Attorney D. James Tree represents Robert M. (Plaintiff); Special 19 Assistant United States Attorney Benjamin J. Groebner represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 3. After reviewing the administrative 22 record and the briefs filed by the parties, the Court GRANTS, IN PART, 23 Plaintiff’s Motion for Summary Judgment; DENIES Defendant’s Motion for 24 Summary Judgment; and REMANDS the matter to the Commissioner for 25 additional proceedings pursuant to 42 U.S.C. § 405(g). 26 27 28 JURISDICTION Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income on August 5, 2014, alleging disability since ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 October 14, 2013, due to symptoms following an industrial electrocution, including 2 confusion, disorientation, memory problems, and body shakes. Tr. 83. The 3 applications were denied initially and upon reconsideration. Tr. 112-14, 119-23. 4 Administrative Law Judge (ALJ) Keith Allred held a hearing on March 30, 2017, 5 Tr. 50-76, and issued an unfavorable decision on July 31, 2017, Tr. 20-40. 6 Plaintiff requested review of the ALJ’s decision from the Appeals Council. Tr. 7 180. The Appeals Council denied Plaintiff’s request for review on June 14, 2018. 8 Tr. 1-6. The ALJ’s July 2017 decision thus became the final decision of the 9 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 10 405(g). Plaintiff filed this action for judicial review on July 27, 2018. ECF No. 1. 11 STATEMENT OF FACTS 12 Plaintiff was born in 1962, and was 51 years old as of the alleged onset date. 13 Tr. 38. He does not have a high school education or a GED. Tr. 54, 467, 585, 662. 14 He worked most of his professional life as an electrician. Tr. 54, 467, 585. Due to 15 multiple head traumas as a child and young adult, Plaintiff developed 16 hydrocephalus and had a ventriculoperitoneal shunt placed in his mid-20s. Tr. 304 17 In June 2013, Plaintiff was electrocuted in a work accident. He did not 18 immediately seek medical attention. A few days later, he presented to the 19 emergency room with a bulge in his groin, which was diagnosed as a hernia, and 20 was repaired the following month. Tr. 342, 350-51. Plaintiff continued to work as 21 an electrician for a short time, but eventually felt as if his concentration and 22 memory were deteriorating to the point that he was no longer safe to perform 23 electrical work. Tr. 359. He reported worsening of his decades-long headache 24 impairment, and worsening cognitive and social skills. 25 At the hearing, Plaintiff testified he was unable to work due to disorientation 26 and confusion, and that he disliked being around people and thus was isolated at 27 home much of the time and needed the comfort of his animals to calm himself 28 down when anxious. Tr. 60-62. ORDER GRANTING, IN PART, 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 ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion. Richardson v. 12 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 13 rational interpretation, the Court may not substitute its judgment for that of the 14 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 15 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 16 administrative findings, or if conflicting evidence supports a finding of either 17 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 18 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 19 supported by substantial evidence will be set aside if the proper legal standards 20 were not applied in weighing the evidence and making the decision. Brawner v. 21 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 22 23 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 25 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 26 four, the burden of proof rests upon the claimant to establish a prima facie case of 27 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 28 met once a claimant establishes that a physical or mental impairment prevents the ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 1 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 2 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 3 to step five, and the burden shifts to the Commissioner to show that (1) the 4 claimant can make an adjustment to other work; and (2) specific jobs which the 5 claimant can perform exist in the national economy. Batson v. Commissioner of 6 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 7 an adjustment to other work in the national economy, the claimant will be found 8 disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 9 ADMINISTRATIVE DECISION 10 11 12 13 14 On July 31, 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 October 14, 2013, the alleged onset date. Tr. 23. At step two, the ALJ determined Plaintiff had the following severe 15 impairments: migraine disorder, anxiety disorder, social anxiety disorder, organic 16 brain disorder, and affective disorder. Id. 17 At step three, the ALJ found Plaintiff did not have an impairment or 18 combination of impairments that met or medically equaled the severity of one of 19 the listed impairments. Tr. 24-27. 20 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 21 Plaintiff could perform medium exertion level work with the following limitations: 22 23 24 25 26 27 28 He can lift or carry 50 pounds occasionally and 25 pounds frequently. He can sit for 6 hours in an 8-hour workday and can stand or walk for 6 hours with normal rest breaks. The claimant can occasionally climb ramps or stairs, balance, stoop, bend, squat, kneel, or crouch. He may never crawl or climb ladders, ropes or scaffolds. The claimant may have no exposure to hazards including unprotected heights or dangerous machinery. The claimant is able to perform the basic mental demands of competitive, unskilled work, including the ability to understand, remember, and carry out simple instructions. He can ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. The claimant may have occasional interaction with supervisors, coworkers, and the general public. 1 2 3 4 Tr. 27. At step four, the ALJ found Plaintiff was not able to perform his past 5 6 relevant work as an electrician. Tr. 38. At step five, the ALJ determined that, based on the testimony of the 7 8 vocational expert, and considering Plaintiff’s age, education, work experience, and 9 RFC, Plaintiff was capable of making a successful adjustment to other work that 10 existed in significant numbers in the national economy, including the jobs of hand 11 packager, laundry laborer, and machine feeder. Tr. 38-39. 12 The ALJ thus concluded Plaintiff was not under a disability within the 13 meaning of the Social Security Act at any time from October 14, 2013, the alleged 14 onset date, through the date of the ALJ’s decision, July 31, 2017. Tr. 39. ISSUES 15 The question presented is whether substantial evidence supports the ALJ’s 16 17 decision denying benefits and, if so, whether that decision is based on proper legal 18 standards. Plaintiff contends the ALJ erred by (1) improperly rejecting medical and 19 20 other opinion evidence1; (2) failing to properly address the listings at step three; 21 and (3) improperly rejecting Plaintiff’s subjective statements. DISCUSSION 22 23 24 25 1. Medical opinion evidence Plaintiff argues the ALJ erred by failing to properly consider the medical opinion evidence of record. ECF No. 11 at 4-13. 26 27 28 1 For clarity, the Court has addressed the assessment of the medical opinion evidence and the third party evidence under separate headings. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5 1 A. Acceptable medical sources 2 In a disability proceeding, the courts distinguish among the opinions of three 3 types of acceptable medical sources: treating physicians, physicians who examine 4 but do not treat the claimant (examining physicians) and those who neither 5 examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 6 F.3d 821, 830 (9th Cir. 1996). A treating physician’s opinion carries more weight 7 than an examining physician’s opinion, and an examining physician’s opinion is 8 given more weight than that of a nonexamining physician. Benecke v. Barnhart, 9 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. 10 In weighing the medical opinion evidence of record, an ALJ must make 11 findings setting forth specific, legitimate reasons for his assessment that are based 12 on substantial evidence in the record. Magallanes v. Bowen, 881 F.2d 747, 751 13 (9th Cir. 1989). The ALJ must also set forth the reasoning behind his or her 14 decisions in a way that allows for meaningful review. Brown-Hunter v. Colvin, 15 806 F.3d 487, 492 (9th Cir. 2015) (finding a clear statement of the agency’s 16 reasoning is necessary because the Court can affirm the ALJ’s decision to deny 17 benefits only on the grounds invoked by the ALJ). 18 When a treating physician’s opinion is not contradicted by another 19 physician, the ALJ may reject the opinion by citing “clear and convincing” 20 reasons; when a treating physician’s opinion is contradicted by another physician, 21 the ALJ is only required to provide “specific and legitimate reasons,” based on 22 substantial evidence, to reject the opinion. Andrews v. Shalala, 53 F.3d 1035, 1041 23 (9th Cir. 1995). The specific and legitimate standard can be met by the ALJ setting 24 out a detailed and thorough summary of the facts and conflicting clinical evidence, 25 stating his interpretation thereof, and making findings. Magallanes, 881 F.2d at 26 751. The ALJ is required to do more than offer his conclusions, he “must set forth 27 his interpretations and explain why they, rather than the doctors’, are correct.” 28 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 1 i. Dr. Stobbe 2 In May 2014 Plaintiff was examined by Dr. Gary Stobbe through the 3 University of Washington Headache Clinic. Tr. 359. Dr. Stobbe concluded that 4 Plaintiff’s symptoms were likely functional in nature, and that underlying anxiety 5 was playing a large role in his dysfunction. Tr. 360. Dr. Stobbe opined that proper 6 lifestyle alterations and treatment could improve his symptoms, but that would take 7 some time, considering it had been a year since Plaintiff’s injury, and he expected 8 “another 6 to 12 months before we could expect him to be able to go back to 9 work.” Id. While a medical provider’s opinion on the ultimate issue of disability is not 10 11 owed any “special significance,” 20 C.F.R. § 404.1527(d), an ALJ is required to 12 explain why “significant probative evidence has been rejected.” Vincent v. 13 Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). The ALJ did not mention this 14 opinion in the decision. By failing to discuss this probative evidence, the ALJ 15 erred. 16 Defendant asserts Plaintiff has not demonstrated harm, as Dr. Stobbe’s 17 report appeared to imply Plaintiff could not return to his prior work as an 18 electrician, and not that he was unable to perform any work. ECF No. 15 at 12. 19 Because the ALJ did not offer this explanation, and it is not immediately clear that 20 Defendant’s interpretation is correct, the Court declines to find the ALJ’s error 21 harmless on this basis. 22 ii. Dr. Thompson 23 In March 2015, Plaintiff attended a neuropsychological evaluation with Dr. 24 Jane Thompson. Tr. 455. Following a clinical interview and extensive objective 25 testing over two days, Dr. Thompson concluded that “due to his severe anxiety and 26 probable agoraphobia, along with his attention, memory, information processing 27 speed, and executive function deficits, I do not believe Mr. McDaneld is capable of 28 gainful employment in any capacity.” Tr. 455. She felt with appropriate treatment ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 1 he may be able to reenter the workforce, but that it would take at least a year of 2 therapies. Id. The ALJ gave Dr. Thompson’s report mixed weight, noting that her 3 ultimate conclusion on disability was reserved for the Commissioner, and that she 4 did not provide an opinion regarding Plaintiff’s residual mental capacities, making 5 the basis for her opinion that he was unable to work “in any capacity” unclear. Tr. 6 35. The ALJ further noted that testing results were average or low average on 7 many measures, that Dr. Thompson’s opinion was at odds with the less severe 8 conclusions of other mental examiners, and that she lacked longitudinal familiarity 9 with Plaintiff. Tr. 35-36. 10 Plaintiff argues the ALJ’s rationale was insufficient. ECF No. 11 at 5-9. 11 The Court finds that, while not all of the ALJ’s stated reasons are specific and 12 legitimate, the ALJ offered sufficient reasons for giving this opinion lesser weight. 13 The Regulations make clear that opinions on the ultimate issue of disability are not 14 given any special significance. 20 C.F.R. § 404.1527(d)(3). The Commissioner 15 also gives more weight to opinions that are well-explained. 20 C.F.R. § 16 404.1527(b)(3). Though her opinion was accompanied by significant objective 17 testing, Dr. Thompson did not offer a functional capacity assessment to explain 18 why she thought Plaintiff was incapable of gainful employment “in any capacity.” 19 The ALJ did not err in his discussion of this opinion. 20 21 iii. Dr. Bachman Plaintiff underwent a neuropsychological evaluation with Dr. David 22 Bachman in September 2016, in connection with his worker’s compensation claim. 23 Tr. 565. Dr. Bachman concluded Plaintiff’s current status made him ineligible to 24 return to his previous work as an electrician. Id. He further stated Plaintiff was 25 “not capable of conforming to any rigid job requirements and could not be relied 26 on because of mental health deficiencies.” Tr. 566. The ALJ gave this opinion 27 partial weight, noting the opinion regarding returning to electrical work was 28 consistent with the record. Tr. 36. The ALJ went on to note, however, that the ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 1 opinion was vague and inconsistent with other evidence of record, and contained 2 internal inconsistencies with respect to Plaintiff’s cooperation with the exam. Id. 3 Plaintiff asserts the ALJ’s assessment is flawed as it failed to consider the 4 entire context of the exam findings, and despite not having a longitudinal treatment 5 history, Dr. Bachman conducted extensive objective testing in support of his 6 findings. ECF No. 11 at 10-11. Plaintiff further argues that, had Dr. Bachman’s 7 opinion regarding unreliability been credited, Plaintiff would have been found 8 unable to perform competitive work. Id. at 9. 9 The ALJ provided specific and legitimate reasons for discounting this 10 opinion. Dr. Bachman did not offer any specific limitations regarding Plaintiff’s 11 ability to perform work in general, and did not explain what “rigid job 12 requirements” or “could not be relied on” meant in terms of work-related 13 functions. The ALJ’s finding that the opinion is unreliably vague is supported by 14 substantial evidence. 15 16 iv. Dr. Friedman Plaintiff underwent a psychiatric exam in January 2016 with Dr. Michael 17 Friedman, in connection with his worker’s compensation claim. Tr. 657. Dr. 18 Friedman noted Plaintiff’s “presentation suggested global cognitive dysfunction to 19 the point that I am surprised that he is able to live independently.” Tr. 668. He 20 went on to note that Plaintiff’s “presentation suggests that he would not be able to 21 return to gainful employment. This man works as a high voltage electrician. He 22 does not believe he would be safe to return to employment.” Id. The ALJ gave 23 little weight to this report, noting that it was not certain whether Dr. Friedman’s 24 comment was intended as an opinion regarding work in general, which would be 25 an issue reserved for the Commissioner, or just Plaintiff’s ability to return to his 26 prior work. Tr. 36. The ALJ also noted Dr. Friedman’s comments regarding the 27 difficulty he had interviewing and diagnosing Plaintiff and seeming incredulity at 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 1 the incongruity of Plaintiff’s presentation at the exam with still being able to live 2 independently. Id. 3 Plaintiff argues the ALJ improperly inserted tone into Dr. Friedman’s report 4 where none existed, and disregarded a second report that indicated Dr. Friedman 5 considered Plaintiff’s impairments to be “Category 3” impairments under 6 Washington State Labor and Industries Administrative Code, indicating Dr. 7 Friedman must have been referring to all work when he stated Plaintiff could not 8 return to gainful employment. ECF No. 11 at 11-12. 9 The Court finds no error in the ALJ’s discussion. Dr. Friedman’s first report 10 is unclear as to whether he was restricting all work or just electrical work. The 11 second report does not clarify the position the way Plaintiff argues, because despite 12 designating Plaintiff’s mental impairments as Category 3 for Labor and Industries, 13 Dr. Friedman explicitly only restricted Plaintiff from working as an electrician, and 14 then only based on Plaintiff’s subjective reports of lack of confidence. Tr. 587. 15 Even giving Plaintiff the benefit of the doubt and interpreting Dr. Friedman’s first 16 report as restricting Plaintiff from all gainful employment, the ALJ accurately 17 noted this is an opinion reserved to the Commissioner and is not due any special 18 significance. 20 C.F.R. § 404.1527(d)(3). Though Plaintiff encourages an 19 alternative interpretation, the ALJ’s interpretation of the tone of Dr. Friedman’s 20 report is reasonable and supported by substantial evidence. 21 22 v. Drs. Clifford and Gilbert The State agency non-examining doctors, Dr. Clifford and Dr. Gilbert, both 23 reviewed the file and offered opinions as to Plaintiff’s mental residual functional 24 capacity. Tr. 85-87, 101-03. The ALJ summarized these opinions and gave them 25 considerable weight. Tr. 37. However, the ALJ failed to acknowledge that the 26 opinions differed somewhat, in that Dr. Gilbert opined Plaintiff’s “anxiety and 27 depression would interfere with concentration and persistence that would create 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10 1 some limit in his ability to complete a normal workday or workweek.” Tr. 102.2 2 The RFC does not include any limitations on Plaintiff’s ability to complete a 3 normal workday or workweek. Tr. 27. As this case is being remanded for further proceedings concerning other 4 5 medical evidence, the ALJ will reconsider the entire medical record, including Dr. 6 Gilbert’s opinion. 7 B. Non-acceptable medical sources 8 In March 2014, Plaintiff was seen at the University of Washington Headache 9 Clinic by ARNP Sau Mui Chan-Goh. Tr. 362. Plaintiff was complaining of 10 worsening headaches since his electrocution accident, along with memory trouble, 11 difficulty concentrating, dizziness, mood lability, and confusion. Tr. 363. 12 Following this visit, ARNP Chan-Goh completed a Department of Labor and 13 Industries form noting Plaintiff was not released to any work from August 2013 14 through an undeterminable date. Tr. 489. The ALJ failed to mention this opinion 15 in his decision. 16 In May 2015, Plaintiff established care with ARNP Cari Cowin. Tr. 595. 17 For the following year and a half, Ms. Cowin repeatedly noted Plaintiff was not 18 able to work due to his psychological symptoms and cognitive deficits. Tr. 596, 19 599, 600, 603, 606, 608, 610-11, 612, 615, 617, 621, 625, 626, 628, 629, 632, 633, 20 636, 639, 643. While many of these notes contained little explanation for this 21 opinion, ARNP Cowin occasionally elaborated: “He really isn’t cognitively sound 22 enough to complete a day of work,” Tr. 606, and “He is unstable psychologically,” 23 24 25 The ALJ’s summary referenced only the opinion from Dr. Clifford that “his 26 2 27 anxiety would interfere with concentration and task persistence at times but he 28 retains the capacity to carry out work activities most of the time.” Tr. 38, 87. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11 1 Tr. 611.3 The ALJ did not mention any of these treatment notes or opinions in his 2 decision. 3 While an ALJ is not required to discuss every piece of evidence, he is 4 required to explain why “significant probative evidence has been rejected.” 5 Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). The fact that 6 Plaintiff’s treating providers believed him incapable of working due to his 7 cognitive and psychological impairments is significant probative evidence. On 8 remand, the ALJ will consider this evidence and give germane reasons if the 9 opinions are discounted. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 10 2. Plaintiff contends the ALJ erred by improperly rejecting his subjective 11 12 Plaintiff’s subjective complaints complaints. ECF No. 11 at 19-21. 13 It is the province of the ALJ to make credibility determinations. Andrews v. 14 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 15 supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 16 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 17 medical impairment, the ALJ may not discredit testimony as to the severity of an 18 impairment merely because it is unsupported by medical evidence. Reddick v. 19 Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of 20 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 21 “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 22 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General findings are 23 insufficient: rather the ALJ must identify what testimony is not credible and what 24 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 25 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 26 27 3 28 an electrician, but could do less complicated work. Tr. 619. At one visit in March 2016, ARNP Cowin stated Plaintiff was not employable as ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12 1 The ALJ concluded Plaintiff’s medically determinable impairments could 2 reasonably be expected to cause his alleged symptoms; however, Plaintiff’s 3 statements concerning the intensity, persistence and limiting effects of those 4 symptoms were not entirely consistent with the medical and other evidence of 5 record. Tr. 33. The ALJ found the evidence to be inconsistent regarding the extent 6 of Plaintiff’s memory and concentration deficits, and found his demonstrated 7 activities to show Plaintiff retained fair abilities in this area. Id. The ALJ further 8 noted Plaintiff’s long history of being able to work with headaches and the 9 eventual improvement of his headaches following adjustments to his shunt. Tr. 34. 10 The ALJ failed to offer clear and convincing reasons for finding Plaintiff’s 11 subjective symptom testimony to be unreliable. While a claimant’s daily activities 12 may support an adverse finding if the activities contradict the claimant’s other 13 testimony, Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007), “ALJs must be 14 especially cautious in concluding that daily activities are inconsistent with 15 testimony about pain, because impairments that would unquestionably preclude 16 work and all the pressures of a workplace environment will often be consistent 17 with doing more than merely resting in bed all day.” Garrison v. Colvin, 759 F.3d 18 995, 1016 (9th Cir. 2014). The ALJ found the evidence demonstrated Plaintiff had 19 memory and concentration deficits, but that “it is not an utterly disabling 20 condition,” as his ability to drive and grocery shop demonstrated fair abilities. Tr. 21 33. “The Social Security Act does not require that claimant be utterly 22 incapacitated to be eligible for benefits.” Smolen v. Chater, 80 F.3d 1273, 1287 23 n.7. The ALJ failed to explain how the ability to drive and grocery shop were 24 inconsistent with Plaintiff’s allegations of disabling mental impairments. 25 The ALJ’s discussion of Plaintiff’s headaches is similarly insufficient. The 26 ALJ is correct that Plaintiff reported his headaches to have returned to pre-injury 27 level by late 2014, and that he declined drug therapies, reporting he was satisfied 28 with the level of pain control received from ibuprofen. Tr. 442, 449. However, at ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 13 1 the same time, Plaintiff reported that his primary concerns were other symptoms, 2 including dizziness, mood lability, cognitive trouble, confusion, and other weird 3 sensations he could not describe in words. Tr. 362. This is consistent with 4 Plaintiff’s reports throughout the record. Tr. 357-58, 394, 416-17, 432, 465-66, 5 513-14, 520, 529, 595, 599, 605, 662. The fact that one condition was somewhat 6 controlled and was no longer his primary concern does not eliminate the difficulty 7 he continued to experience from other symptoms.4 To the extent the ALJ implies Plaintiff’s allegations are not supported by the 8 9 10 objective evidence, this alone is an insufficient basis upon which to reject his statements. Reddick, 157 F.3d at 722. Upon remand, the ALJ shall re-evaluate Plaintiff’s statements and testimony 11 12 along with the benefit of the reconsidered medical evidence. The ALJ shall 13 reassess what statements, if any, are not consistent with the medical evidence and 14 other evidence in the record, and what specific evidence undermines those 15 statements. 16 3. Plaintiff argues the ALJ erred in rejecting the evidence provided by 17 18 Third party evidence Plaintiff’s siblings. ECF No. 11 at 15-17. Lay witness testimony is “competent evidence” as to “how an impairment 19 20 affects [a claimant’s] ability to work.” Stout v. Comm’r, Soc. Sec. Admin., 454 21 F.3d 1050 (9th Cir. 2006); see also Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th 22 Cir. 1993) (“[F]riends and family members in a position to observe a claimant’s 23 symptoms and daily activities are competent to testify as to her condition.”). This claim is being remanded for reevaluation of the medical evidence and 24 25 26 4 Despite headaches no longer being his primary concern, Plaintiff continued to 27 report having headaches throughout the record. Tr. 514, 532, 595, 599-600, 608, 28 618, 629. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 14 1 Plaintiff’s subjective reports. Therefore, upon remand the ALJ will also readdress 2 the evidence submitted by Plaintiff’s siblings regarding his functional abilities. 3 4. 4 Step three findings Plaintiff argues the ALJ failed to properly assess the Listings at step three. 5 ECF No. 11 at 17-19. Specifically, Plaintiff asserts the ALJ erred in failing to 6 discuss why the elements of Listing 11.02B were not met, and in assessing his 7 level of functioning in the “paragraph B” criteria. Id. 8 A claimant is considered disabled at step three when his impairment meets 9 the durational requirement and his impairments meet or equal a listed impairment 10 in Appendix 1. 20 C.F.R. §§ 404.1520(d), 416.920(d). “An ALJ must evaluate the 11 relevant evidence before concluding that a claimant’s impairments do not meet or 12 equal a listed impairment. A boilerplate finding is insufficient to support a 13 conclusion that a claimant’s impairment” does not meet or equal a listed 14 impairment. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). However, the ALJ 15 is not required to state why a claimant fails to satisfy every criteria of the listing if 16 they adequately summarize and evaluate the evidence. See Gonzalez v. Sullivan, 17 914 F.2d 1197, 1200-01 (9th Cir.1990); Lewis, 236 F.3d at 512. 18 At step three the ALJ found there was no evidence to show the existence of 19 any impairment that met the criteria of any of the listed impairments in the 20 Regulations. Tr. 25. He discussed the factors to be considered when assessing 21 migraines under 11.02B and 11.02D. Id. The ALJ went on to discuss the detailed 22 requirements of Listing 12.00 and the relevant “B criteria.” Tr. 25-26. He did not 23 specifically discuss why the criteria of Listing 11.02B were not met or equaled. 24 To meet Listing 11.02B, an individual must have “epilepsy, documented by 25 a detailed description of a typical seizure and characterized by . . . (B) dyscognitive 26 seizures, occurring at least once a week for at least 3 consecutive months despite 27 adherence to prescribed treatment.” 20 C.F.R. Part 404, Subpart P, Appendix 1, 28 11.02B. Dyscognitive seizures “are characterized by alteration of consciousness ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 15 1 without convulsions or loss of muscle control. During the seizure, blank staring, 2 change of facial expression, and automatisms (such as lip smacking, chewing or 3 swallowing, or repetitive simple actions, such as gestures or verbal utterances) may 4 occur.” Id. at 11.00H1b. 5 The record fails to establish any plausible argument that the listing was met 6 or equaled. Lewis, 236 F.3d at 514. The record contains no indication that 7 Plaintiff’s headaches cause any alteration to his consciousness. The ALJ discussed 8 the longitudinal medical record, and thus was not required to discuss why the 9 elements of each listing were not met. 10 With respect to the assessment of the B criteria, Plaintiff has failed to show 11 that the ALJ erred in his evaluation of the evidence. The ALJ discussed at length 12 each of the B criteria and the evidence he relied on in reaching the ratings in the 13 various categories. Tr. 26. Though Plaintiff encourages a different interpretation 14 of the record, the ALJ’s conclusions are supported by substantial evidence. Batson 15 v. Comm’r of Soc. Sec. Admin, 359 F.3d 1190, 1193 (9th Cir. 2004) (“if evidence 16 exists to support more than one rational interpretation, we must defer to the 17 Commissioner’s decision”). 18 19 CONCLUSION Plaintiff argues the ALJ’s decision should be reversed and remanded for the 20 payment of benefits. The Court has the discretion to remand the case for additional 21 evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 22 (9th Cir. 1996). The Court may award benefits if the record is fully developed and 23 further administrative proceedings would serve no useful purpose. Id. Remand is 24 appropriate when additional administrative proceedings could remedy defects. 25 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 26 finds that further development is necessary for a proper determination to be made. 27 28 The ALJ’s RFC determination is not supported by substantial evidence in this case and must be reevaluated. On remand, the ALJ shall reassess the medical ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 16 1 evidence, reevaluate Plaintiff’s subjective complaints and the testimony of the 2 third-parties, formulate a new RFC, obtain supplemental testimony from a 3 vocational expert, if necessary, and take into consideration any other evidence or 4 testimony relevant to Plaintiff’s disability claim. 5 Accordingly, IT IS ORDERED: 6 1. 7 8 9 10 11 Plaintiff’s Motion for Summary Judgment, ECF No. 11, 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. 12 4. An application for attorney fees may be filed by separate motion. 13 The District Court Executive is directed to file this Order and provide a copy 14 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 15 the file shall be CLOSED. 16 IT IS SO ORDERED. 17 DATED June 18, 2019. 18 19 20 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 17

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