Sanders v. Saul, No. 1:2019cv03224 - Document 16 (E.D. Wash. 2020)

Court Description: ORDER GRANTING 13 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; denying 14 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (AN, Courtroom Deputy)

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Sanders v. Saul Doc. 16 Case 1:19-cv-03224-JTR ECF No. 16 filed 09/02/20 PageID.2289 Page 1 of 16 1 2 3 4 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 5 Sep 02, 2020 6 SEAN F. MCAVOY, CLERK 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF WASHINGTON 10 11 12 TERRINA S., No. 1:19-CV-03224-JTR Plaintiff, 13 14 15 16 17 18 v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY Defendant. 19 20 21 22 23 24 25 26 27 28 BEFORE THE COURT are cross-motions for summary judgment. ECF No. 13, 14. Attorney D. James Tree represents Terrina S. (Plaintiff); Special Assistant United States Attorney Franco Becia represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 8. After reviewing the administrative record and the briefs filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and REMANDS the matter to the Commissioner for an immediate calculation of benefits pursuant to 42 U.S.C. § 405(g). ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com Case 1:19-cv-03224-JTR 1 ECF No. 16 filed 09/02/20 PageID.2290 Page 2 of 16 JURISDICTION 2 Plaintiff filed applications for Disability Insurance Benefits and 3 Supplemental Security Income on July 20, 2012, alleging disability since February 4 20, 2012, due to fibromyalgia, insomnia, anxiety, and depression. Tr. 79. The 5 applications were denied initially and upon reconsideration. Tr. 129-37, 139-50. 6 Administrative Law Judge (ALJ) Virginia Robinson held a hearing on April 2, 7 2014, Tr. 39-76, and issued an unfavorable decision on October 21, 2014, Tr. 19- 8 34. Plaintiff requested review from the Appeals Council. Tr. 298-99. The Appeals 9 Council denied Plaintiff’s request for review on March 30, 2016. Tr. 1-6. Plaintiff 10 filed an action with this court on April 14, 2016. Tr. 670. On August 15, 2017, this 11 court remanded the claim for further proceedings. Tr. 669-83. ALJ Robinson held a remand hearing on March 12, 2019, Tr. 537-69, and 12 13 issued a second unfavorable decision on July 3, 2019, Tr. 496-514. Plaintiff did not 14 file written exceptions with the Appeals Council and the Appeals Council did not 15 take its own review of the decision; the ALJ’s July 2019 decision thus became the 16 final decision of the Commissioner, which is appealable to the district court 17 pursuant to 42 U.S.C. § 405(g). Tr. 494. Plaintiff filed this action for judicial 18 review on September 20, 2019. ECF No. 1. STATEMENT OF FACTS 19 Plaintiff was born in 1972 and was 39 years old as of her alleged onset date. 20 21 Tr. 512. She graduated from high school and cosmetology school. Tr. 317, 557. 22 Her work history has consisted of beautician work, apple packing, and waitressing. 23 Tr. 70. She stopped working as a waitress in 2012 due to pain and fatigue. Tr. 45- 24 46, 547-48. She has been diagnosed with fibromyalgia, and gastrointestinal 25 problems, and has developed significant mental health symptoms related to her 26 persistent pain. 27 /// 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 Case 1:19-cv-03224-JTR 1 2 ECF No. 16 filed 09/02/20 PageID.2291 Page 3 of 16 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 PLAINTIFF’S MOTION . . . - 3 Case 1:19-cv-03224-JTR ECF No. 16 filed 09/02/20 PageID.2292 Page 4 of 16 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 (1) the claimant 4 can make an adjustment to other work; and (2) the claimant can perform specific 5 jobs that exist in the national economy. Batson v. Commissioner of Social Sec. 6 Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make an 7 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 On July 3, 2019, 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 the alleged onset date. Tr. 499. 14 At step two, the ALJ determined Plaintiff had the following severe 15 impairments: degenerative disc disease, fibromyalgia, gastrointestinal disorder, 16 affective disorders, anxiety disorders, and somatoform disorders. Tr. 500. 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. 501-03. 20 21 22 23 24 25 26 27 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found she could perform light exertion level work with the following limitations: Frequent balancing and stooping, occasional kneeling, crouching, and climbing ramps and stairs, and no crawling or climbing ladders, ropes, and scaffolds. She can frequently reach overhead. Handling (gross manipulation), fingering (fine manipulation), and feeling (skin receptors) with the left upper extremity is limited to frequent. She needs to avoid concentrated exposure to excessive vibration and hazards such as working with dangerous machinery and working at unprotected heights. She can sustain attention for 2 hours at a time 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 Case 1:19-cv-03224-JTR 5 At step four, the ALJ found Plaintiff was unable to perform her past relevant work as a restaurant server, kitchen helper, short order cook, and cosmetologist. Tr. 511-12. 6 7 8 9 10 11 At step five the ALJ found, considering Plaintiff’s age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, specifically identifying the representative occupations of production line solderer, electrical accessories assembler, marker, hand packager, and bakery worker conveyor line. Tr. 512-13. 12 13 14 The ALJ thus concluded Plaintiff was not under a disability within the meaning of the Social Security Act at any time from the alleged onset date through the date of the decision. Tr. 513-14. 15 ISSUES 16 17 18 The question presented is whether substantial evidence supports the ALJ’s decision denying benefits and, if so, whether that decision is based on proper legal standards. 19 20 Plaintiff contends the ALJ erred by (1) improperly rejecting Plaintiff’s subjective testimony; and (2) improperly evaluating medical opinion evidence. 21 22 23 24 25 26 27 PageID.2293 Page 5 of 16 Tr. 503. 3 4 filed 09/02/20 and perform routine tasks in a routine, predictable work environment with simple work-related decisions. 1 2 ECF No. 16 DISCUSSION 1. Plaintiff’s subjective statements Plaintiff contends the ALJ erred by improperly rejecting her subjective statements. ECF No. 13 at 8-13. It is the province of the ALJ to make credibility determinations. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 Case 1:19-cv-03224-JTR ECF No. 16 filed 09/02/20 PageID.2294 Page 6 of 16 1 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 2 medical impairment, the ALJ may not discredit testimony as to the severity of an 3 impairment merely because it is unsupported by medical evidence. Reddick v. 4 Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of 5 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 6 “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 7 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General findings are 8 insufficient: rather the ALJ must identify what testimony is not credible and what 9 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 10 11 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The ALJ concluded Plaintiff’s medically determinable impairments could 12 reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 13 statements concerning the intensity, persistence and limiting effects of those 14 symptoms were not entirely reliable. Tr. 504. The ALJ went on to discuss a 15 number of factors that she found undermined Plaintiff’s allegations. Tr. 504-08. 16 The ALJ adopted the same analysis regarding Plaintiff’s subjective 17 allegations as she wrote in the prior decision issued in 2014. Compare Tr. 504-07 18 with Tr. 27-29. Each of the reasons was already found to be insufficient by this 19 court in the prior action. Tr. 673-78. The “law of the case” doctrine prohibits a 20 court from considering an issue that has already been decided by that same court or 21 a higher court in the same case, primarily in the name of efficiency. Stacy v. 22 Colvin, 825 F.3d 563, 567 (9th Cir. 2016). The rule of mandate is similar to, but 23 broader than, the law of the case doctrine. The rule provides that any “district 24 court that has received the mandate of an appellate court cannot vary or examine 25 that mandate for any purpose other than executing it.” Id. at 567-68. In Stacy, the 26 Ninth Circuit held that both of these appellate principles apply in the Social 27 Security context. Id. at 567. The ALJ ignored the order from this court that the 28 rationale provided for discrediting Plaintiff was not clear and convincing. Tr. 678. ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 Case 1:19-cv-03224-JTR ECF No. 16 filed 09/02/20 PageID.2295 Page 7 of 16 1 Furthermore, the ALJ failed to discuss any of the evidence submitted to the file 2 after the 2014 hearing, much of which contradicts the findings that were already 3 deemed insufficient. The only additional analysis the ALJ added related to Plaintiff’s activities 4 5 and work after the alleged onset date. Tr. 507-08. While phrased in a slightly 6 different manner, the ALJ cited to the same activities that this Court previously 7 found did not conflict with Plaintiff’s testimony. Tr. 677. Furthermore, the minimal 8 work activities identified by the ALJ do not demonstrate any inconsistency with 9 Plaintiff’s alleged limitations. Tr. 499. The ALJ found this work did not amount to 10 substantial gainful activity and did not identify any actual work activity that 11 conflicted with Plaintiff’s alleged limitations. Id. The Commissioner offers no defense of the ALJ’s failure to follow the 12 13 directives of this court, and instead included verbatim recitations of the ALJ’s 14 reasoning that this court already deemed to be insufficient. Compare Tr. 504-08 15 with ECF No. 14 at 3-14. The Court therefore finds the ALJ failed to offer clear 16 and convincing reasons for rejecting Plaintiff’s subjective complaints. 17 2. Medical Opinion Evidence 18 Plaintiff asserts the ALJ improperly evaluated the medical opinion evidence 19 by offering insufficient reasons for rejecting the opinions from Drs. Schneider and 20 Reinmuth and a number of non-acceptable sources. ECF No. 13 at 13-21. 21 When a treating or examining physician’s opinion is contradicted by another 22 physician, the ALJ is required to provide “specific and legitimate reasons” to reject 23 the opinion. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Lester v. 24 Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The specific and legitimate standard 25 can be met by the ALJ setting out a detailed and thorough summary of the facts 26 and conflicting clinical evidence, stating her interpretation thereof, and making 27 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 28 required to do more than offer her conclusions, she “must set forth [her] ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 Case 1:19-cv-03224-JTR ECF No. 16 filed 09/02/20 PageID.2296 Page 8 of 16 1 interpretations and explain why they, rather than the doctors’, are correct.” Embrey 2 v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 3 An ALJ may discount the opinion of an “other source,” such as a nurse 4 practitioner, if she provides “reasons germane to each witness for doing so.” 5 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 6 a. Dr. Reinmuth 7 Plaintiff’s treating doctor, Scott Reinmuth, completed medical source 8 statements in 2017 and 2018 indicating Plaintiff’s conditions included chronic 9 abdominal pain, reduced gastric emptying, fibromyalgia, bilateral ulnar 10 neuropathy, insomnia, anxiety, depression, and chronic neck pain. Tr. 1359-60, 11 2164-65. He indicated she needed to lie down or recline throughout the day for 12 multiple hours and that working would cause her conditions to deteriorate and 13 would aggravate her symptoms. Id. He opined Plaintiff would miss four or more 14 days of work per month, and had been impaired at that level since 2011. Id. 15 The ALJ gave these opinions little weight, finding the statements to be 16 generalized and lacking explanation for why Plaintiff would miss so much work, 17 and not containing functional limitations. Tr. 510. The ALJ further reasoned the 18 opinions were apparently based on Plaintiff’s “subjective insistence that she cannot 19 work,” and found the opinions unsupported by the treatment notes or the medical 20 evidence of record. Id. 21 Plaintiff argues the opinions do contain functional limits that are explained, 22 and the ALJ’s discussion lacked the necessary specificity. ECF No. 13 at 17-19. 23 Plaintiff further argues the opinion regarding missed days is consistent with the 24 other opinions in the record that indicate Plaintiff would have difficulty working 25 consistently. Id. at 19. Defendant argues the ALJ properly summarized and 26 interpreted the evidence in the file, including Dr. Reinmuth’s records, and that the 27 extreme limits are not supported by the treatment notes. ECF No. 14 at 16-17. 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 Case 1:19-cv-03224-JTR ECF No. 16 filed 09/02/20 PageID.2297 Page 9 of 16 1 Defendant further asserts the opinions are generalized and lacking in explanation. 2 Id. 3 The Court finds the ALJ failed to offer specific and legitimate reasons for 4 discounting Dr. Reinmuth’s opinions. The forms indicate specific functional 5 limitations, including missed days and needing to recline throughout the day, 6 especially if she were working a full-time job, which would exacerbate her 7 symptoms. Tr. 1359-60, 2164-65. 8 9 While an ALJ may discount a medical opinion that is “based to a large extent on a claimant’s self-reports that have been properly discounted as 10 incredible,” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008), there must 11 be some evidentiary basis for such a conclusion. Ghanim v. Colvin, 763 F.3d 154, 12 1162 (9th Cir. 2014). Dr. Reinmuth listed objective testing that supported the 13 diagnoses and he had a treatment relationship with Plaintiff extending back to mid- 14 2015. Tr. 1044. Despite listing the exhibits that contained Dr. Reinmuth’s 15 treatment notes, the ALJ failed to cite to a single record of Dr. Reinmuth’s 16 treatment, or any other contemporaneous records, that undermined the opinions. 17 Dr. Reinmuth consistently noted Plaintiff to present with pain, gastrointestinal 18 issues, and mental health problems, and frequently started and stopped various 19 medications due to side effects and efficacy problems. Tr. 1044, 1049, 1260, 1276, 20 1279, 1300, 1352, 1637, 1641, 1662, 1677, 1686, 1697, 2091. 21 22 Therefore, the ALJ failed to offer specific and legitimate reasons for discounting Dr. Reinmuth’s opinions. 23 b. Dr. Schneider 24 Plaintiff attended a psychological exam with Dr. Leslie Schneider in April 25 2014 in connection with her pain management. Tr. 403-08. Dr. Schneider opined 26 Plaintiff was unable to maintain any kind of regular schedule at all, even part time, 27 as she was suffering too much, and thus stated he did not think she was employable 28 at the time. Tr. 404. He recommended she contact vocational rehabilitation to try to ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 Case 1:19-cv-03224-JTR ECF No. 16 filed 09/02/20 PageID.2298 Page 10 of 16 1 get back to some work if she was unable to get on Social Security disability. Tr. 2 407. 3 The ALJ gave this opinion little weight, noting the doctor did not explain his 4 statement that Plaintiff was unable to maintain a regular schedule and did not 5 define her functional limitations. Tr. 509. The ALJ further found the opinion 6 internally inconsistent given Dr. Schneider’s recommendation that Plaintiff contact 7 vocational rehabilitation, and found the opinion to be unsupported by the 8 longitudinal medical record. Id. 9 Plaintiff argues the opinion is self-explanatory, in that Dr. Schneider did not 10 believe Plaintiff was capable of maintaining a regular work schedule based on her 11 physical and mental suffering. ECF No. 13 at 14. She further argues that there was 12 no inconsistency between the opinion and the recommendation to consult 13 vocational rehabilitation because the doctor was not sure Plaintiff could even be 14 helped by the department, and also noted that if she could not, that would help 15 strengthen her claim for disability. Id. Finally, Plaintiff argues the ALJ’s general 16 rejection of the opinion as inconsistent with the longitudinal record was not 17 specific enough. Id. at 15. Defendant argues the ALJ’s rationale is supported by 18 substantial evidence and the lack of explanation or specific functional limits was a 19 specific and legitimate basis to reject the opinion. ECF No. 14 at 15-16. 20 The Court finds the ALJ’s rationale is not specific and legitimate. Dr. 21 Schneider’s opinion that Plaintiff was unable to maintain a regular work schedule 22 was a concrete limitation, specifically rooted in her physical and mental suffering. 23 The Court finds no inconsistency in the doctor’s statement that Plaintiff should 24 consult vocational rehabilitation. The context of the recommendation makes it 25 clear that Dr. Schneider was uncertain that the referral would gain Plaintiff 26 anything, and specifically noted that he believed it would serve as a backup or 27 additional evidence if her disability claim was denied. Tr. 407. Finally, the ALJ 28 failed to cite to any longitudinal evidence that was unsupportive of Dr. Schneider’s ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 Case 1:19-cv-03224-JTR ECF No. 16 filed 09/02/20 PageID.2299 Page 11 of 16 1 opinion. The ALJ failed to discuss the vast majority of the mental health treatment 2 records at all, most of which were added to the file following the previous remand 3 order. Tr. 1128 (therapy with Dr. Beachy beginning in early 2015); 1208 4 (counseling with Comprehensive Healthcare beginning late 2015); 1605 (therapy 5 with Dr. Corcoran as part of pain management beginning 2017). Plaintiff’s 6 extensive mental health care over the following years addressed her depression and 7 anxiety and their close link to her physical health problems, along with her 8 eventual diagnosis of borderline personality disorder. Tr. 1258, 1401, 1564, 1581, 9 1717-18, 1773. She consistently presented with depressed or sad mood and anxious 10 and emotional affect, with impaired insight and judgment and thoughts of self- 11 harm. Tr. 319, 1244-45, 1258, 1341, 1395, 1411, 1432, 1474, 1798-99, 1814. The 12 ALJ’s conclusion that Dr. Schneider’s opinion is unsupported by the longitudinal 13 record is not supported by substantial evidence. 14 c. Ms. Joachims 15 Plaintiff’s treating counselor Candy Joachims completed a medical source 16 statement in March 2017 commenting on Plaintiff’s abilities in numerous work- 17 related functional areas, noting she had moderate limitations1 in her ability to 18 remember locations and work-like procedures, carry out detailed instructions, 19 make simple work-related decisions, complete a normal work-day and workweek 20 without interruptions from psychologically-based symptoms, perform at a 21 consistent pace without an unreasonable number and length of rest periods, 22 respond appropriately to changes in the work setting, set realistic goals and plans, 23 interact with others, and concentrate, persist, and maintain pace. Tr. 1355-57. She 24 25 26 1 The form defined “moderate” as “significant interference with basic work- 27 related activities, i.e., unable to perform the described mental activity for at least 28 20% of the work day up to 33% of the workday.” Tr. 1355. ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 Case 1:19-cv-03224-JTR ECF No. 16 filed 09/02/20 PageID.2300 Page 12 of 16 1 also opined Plaintiff would be off-task over 30% of the time and would be absent 2 four or more days per month. Tr. 1357. 3 The ALJ gave this opinion partial weight, noting the mild and moderate 4 limits were consistent with the treatment records and the medical evidence as a 5 whole, but finding the limitations on productivity and attendance were “wholly out 6 of proportion to the treatment evidence.” Tr. 509-10. The ALJ further found Ms. 7 Joachims offered no explanation for the extreme limits while also finding Plaintiff 8 only mildly to moderately limited. Tr. 510. Plaintiff argues the ALJ erred in giving significant weight to the moderate 9 10 limitations without including greater restrictions in the RFC, given the definition of 11 moderate on the form. ECF No. 13 at 15-16. She further argues the ALJ failed to 12 identify any inconsistency between the mild and moderate limitations and the other 13 assessed limits, and instead argues that they are consistent. Id. at 16-17. Defendant 14 argues the ALJ properly summarized and interpreted the evidence, and adequately 15 accounted for the mild and moderate limits in the RFC by limiting Plaintiff to 16 simple routine work, and thus did not err. ECF No. 14 at 17-19. The Court finds the ALJ erred in her discussion. In giving significant weight 17 18 to the moderate limitations, but failing to account for them in the RFC, the ALJ 19 effectively rejected them. The limit to routine predictable work with simple 20 decisions does not account for all of the moderate limits Ms. Joachims noted, given 21 how moderate was defined on the form. Tr. 1355. In the context of being unable to 22 perform the activities for 20-33% of the workday, the moderate limitations are not 23 inconsistent with her other opinions regarding time off-task and absenteeism. 24 Furthermore, the ALJ failed to identify any evidence that was “wholly out of 25 proportion” with the assessed limitations. The ALJ therefore failed to give 26 germane reasons for rejecting Ms. Joachims’ opinion. 27 /// 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 Case 1:19-cv-03224-JTR ECF No. 16 filed 09/02/20 PageID.2301 Page 13 of 16 1 d. Work First forms 2 Throughout the relevant period, a number of Plaintiff’s treating providers 3 completed documentation for the State Work First program, certifying Plaintiff’s 4 disability. Tr. 1760-62 (Ms. Damstedt, 2016), 1765-67 (Ms. Joachims, 2017), 5 1768-70 (Ms. Baker, 2018). Each of the sources opined Plaintiff had major 6 depressive disorder, with Ms. Joachims also noting pain disorder with 7 psychological factors, and each stated Plaintiff was capable of no more than 10 8 hours of work-related activities per week. Id. Ms. Damstedt also opined Plaintiff 9 was limited to sedentary level work. Tr. 1761. 10 The ALJ addressed these opinions together and gave them all little to no 11 weight. Tr. 510. She found the sources all failed to offer specific functional 12 limitations and did not provide corroborating treatment records in support of the 13 statements on the forms. Id. 14 Plaintiff argues the forms do contain specific limitations, and even though 15 the treatment records were not sorted in the file with the forms, the record contains 16 numerous treatment records from the sources. ECF No. 13 at 19-21. Defendant 17 argues the ALJ was not required to accept the opinions at face value and the lack 18 of explanation on the forms is a germane factor the ALJ may consider. ECF No. 14 19 at 19-20. 20 The Court finds the ALJ failed to offer germane reasons for rejecting the 21 opinions. Each form contains a discussion of Plaintiff’s symptoms and an opinion 22 regarding the number of hours she was capable of engaging in work-related 23 activities. Therefore, the ALJ’s finding that the sources failed to offer specific 24 functional limitations is incorrect. As to the corroborating treatment records, the 25 file contains many records from these sources. Plaintiff was in counseling with Ms. 26 Damstedt from May 2016 through February 2017 (Tr. 1224, 1461), with Ms. 27 Joachims from March 2017 to July 2018 (Tr. 1456, 1814), and with Ms. Baker 28 beginning in October 2018 (Tr. 1783). The Work First forms appear in the record ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 Case 1:19-cv-03224-JTR ECF No. 16 filed 09/02/20 PageID.2302 Page 14 of 16 1 in a section of documentation provided by the State Department of Social and 2 Health Services. Tr. 1758-72. Though the supporting treatment records were not 3 sorted in the file with the forms, the record does contain treatment records from 4 each of these sources. Therefore, the ALJ’s reasoning was incorrect. 5 REMEDY 6 Plaintiff argues the decision should be reversed and remanded for the 7 payment of benefits. The Court has the discretion to remand the case for additional 8 evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 9 (9th Cir. 1996). The Court may award benefits if the record is fully developed and 10 further administrative proceedings would serve no useful purpose. Id. Remand is 11 appropriate when additional administrative proceedings could remedy defects. 12 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the record is 13 adequate for a proper determination to be made and further development is not 14 necessary. The Ninth Circuit has set forth a three part standard for determining when to 15 16 credit improperly discounted evidence as true: (1) the record has been fully 17 developed and further administrative proceedings would serve no purpose; (2) the 18 ALJ has failed to provide legally sufficient reasons for rejecting the evidence in 19 question; and (3) if the improperly discredited evidence were credited as true the 20 ALJ would be required to find Plaintiff eligible for benefits. Garrison, 759 F.3d at 21 1020. 22 In this case, all three parts of the standard are met. The record has been fully 23 developed in terms of available medical records, with extensive evidence spanning 24 over seven years. The ALJ failed to provide legally sufficient reasons to reject 25 multiple medical opinions regarding Plaintiff’s functioning, and failed to provide 26 clear and convincing reasons for discounting Plaintiff’s subjective symptom 27 complaints, despite being given a second opportunity to do so. Each of the 28 improperly rejected medical opinions opined Plaintiff would be unable to maintain ORDER GRANTING PLAINTIFF’S MOTION . . . - 14 Case 1:19-cv-03224-JTR ECF No. 16 filed 09/02/20 PageID.2303 Page 15 of 16 1 a regular full-time schedule or would be off-task or absent at an unemployable 2 level. Plaintiff testified she was constantly in pain, needing to recline or nap for a 3 large percentage of the day. The vocational expert testified that an individual who 4 was absent more than eight times in a year, needed to recline during the day, or 5 needed additional breaks outside of the norm would not be able to maintain 6 employment. Tr. 563-65. If any of the improperly rejected evidence were credited 7 as true, the ALJ would be required to find Plaintiff eligible for benefits at step five 8 of the sequential evaluation process. 9 The Court also notes that the medical opinions and Plaintiff’s testimony are 10 all consistent with each other. The medical records reflect consistent reports of 11 pain and mental health impairments consistent with the improperly rejected 12 evidence. Defendant argues the medical evidence and Plaintiff’s lack of credibility 13 raise serious doubts as to whether she is disabled. ECF No. 14 at 21. However, 14 Defendant identifies no specific evidence that raises “serious doubt” as to 15 Plaintiff’s disability. Trevizo v. Berryhill, 871 F.3d 664 (9th Cir. 2017). 16 Finally, the Court notes that the exceptional circumstances of this case, 17 while not controlling, strengthen the case for an immediate calculation of benefits. 18 This claim has been pending for eight years, having been previously remanded by 19 this court for correction of errors the ALJ failed to correct. The errors here are 20 precisely those the Ninth Circuit has identified as part of the justification for the 21 credit-as-true rule: 22 23 24 25 26 27 28 [I]t avoids unnecessary duplication in the administrative hearings and reduces the administrative burden caused by requiring multiple proceedings in the same case. Perhaps most important, by ensuring that credible claimants’ testimony is accepted the first time around, the rule reduces the delay and uncertainty often found in this area of the law, and ensures that deserving claimants will receive benefits as soon as possible. As already noted, applicants for disability benefits often suffer from painful and debilitating conditions, as well as severe economic hardship. Delaying the payment of benefits by requiring ORDER GRANTING PLAINTIFF’S MOTION . . . - 15 Case 1:19-cv-03224-JTR 1 2 3 4 ECF No. 16 filed 09/02/20 PageID.2304 Page 16 of 16 multiple administrative proceedings that are duplicative and unnecessary only serves to cause the applicant further damage — financial, medical, and emotional. Such damage can never be remedied. Without endangering the integrity of the disability determination process, a principal goal of that process must be the speedy resolution of disability applicants’ claims. 5 6 7 8 Garrison v. Colvin, 759 F.3d 995, 1019-20 (9th Cir. 2014). As such, this Court remands the case for an immediate calculation of benefits. CONCLUSION 9 10 Accordingly, IT IS ORDERED: 11 1. 12 13 14 15 16 Plaintiff’s Motion for Summary Judgment, ECF No. 13, is GRANTED. 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is DENIED. 3. The matter is REMANDED to the Commissioner for an immediate calculation of benefits. 17 4. An application for attorney fees may be filed by separate motion. 18 The District Court Executive is directed to file this Order and provide a copy 19 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 20 the file shall be CLOSED. 21 IT IS SO ORDERED. 22 DATED September 2, 2020. 23 24 25 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 16

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