Fields v. Saul, No. 1:2020cv03019 - Document 18 (E.D. Wash. 2020)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 14 ) AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF N. 15 ). File closed. Signed by Magistrate Judge Mary K. Dimke. (PH, Case Administrator)

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Fields v. Saul Doc. 18 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1400 Page 1 of 21 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Aug 20, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 TIMOTHY F.,1 No. 1:20-cv-03019-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 14, 15 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 14, 15. The parties consented to proceed before a magistrate judge. ECF No. 15 6. The Court, having reviewed the administrative record and the parties’ briefing, 16 17 1 To protect the privacy of plaintiffs in social security cases, the undersigned 18 identifies them by only their first names and the initial of their last names. See 19 LCivR 5.2(c). 20 2 ORDER - 1 Dockets.Justia.com Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1401 Page 2 of 21 1 is fully informed. For the reasons discussed below, the Court grants Plaintiff’s 2 motion, ECF No. 14, and denies Defendant’s motion, ECF No. 15. 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 5 1383(c)(3). 6 7 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 8 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 9 limited; the Commissioner’s decision will be disturbed “only if it is not supported 10 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 11 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 12 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 13 (quotation and citation omitted). Stated differently, substantial evidence equates to 14 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 15 citation omitted). In determining whether the standard has been satisfied, a 16 reviewing court must consider the entire record as a whole rather than searching 17 for supporting evidence in isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 20 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 ORDER - 2 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1402 Page 3 of 21 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 3 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 4 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 5 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 6 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 7 decision generally bears the burden of establishing that it was harmed. Shinseki v. 8 Sanders, 556 U.S. 396, 409-10 (2009). 9 10 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 11 the meaning of the Social Security Act. First, the claimant must be “unable to 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which 14 has lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 16 impairment must be “of such severity that he is not only unable to do his previous 17 work[,] but cannot, considering his age, education, and work experience, engage in 18 any other kind of substantial gainful work which exists in the national economy.” 19 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 20 2 ORDER - 3 Case 1:20-cv-03019-MKD 1 ECF No. 18 filed 08/20/20 PageID.1403 Page 4 of 21 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 3 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 4 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 5 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 6 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 7 404.1520(b), 416.920(b). 8 If the claimant is not engaged in substantial gainful activity, the analysis 9 proceeds to step two. At this step, the Commissioner considers the severity of the 10 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 11 claimant suffers from “any impairment or combination of impairments which 12 significantly limits [his or her] physical or mental ability to do basic work 13 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 14 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 15 however, the Commissioner must find that the claimant is not disabled. Id. 16 At step three, the Commissioner compares the claimant’s impairment to 17 severe impairments recognized by the Commissioner to be so severe as to preclude 18 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 19 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 20 2 ORDER - 4 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1404 Page 5 of 21 1 severe than one of the enumerated impairments, the Commissioner must find the 2 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 9 analysis. 10 At step four, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing work that he or she has performed in 12 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 13 If the claimant is capable of performing past relevant work, the Commissioner 14 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 15 If the claimant is incapable of performing such work, the analysis proceeds to step 16 five. 17 At step five, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing other work in the national economy. 19 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 20 the Commissioner must also consider vocational factors such as the claimant’s age, 2 ORDER - 5 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1405 Page 6 of 21 1 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 2 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 5 work, analysis concludes with a finding that the claimant is disabled and is 6 therefore entitled to benefits. Id. 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 10 capable of performing other work; and 2) such work “exists in significant numbers 11 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 12 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 13 ALJ’S FINDINGS 14 On July 5, 2013, Plaintiff applied both for Title II disability insurance 15 benefits and Title XVI supplemental security income benefits alleging an amended 16 disability onset date of October 1, 2011.2 Tr. 108, 211-23. The applications were 17 18 19 2 Plaintiff previously applied for benefits, which was denied initially and on 20 reconsideration; Plaintiff requested and appeared at a hearing but the claim resulted 2 ORDER - 6 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1406 Page 7 of 21 1 denied initially and on reconsideration. Tr. 141-47; Tr. 148-56. Plaintiff appeared 2 before an administrative law judge (ALJ) on June 30, 2015. Tr. 45-83. On July 3 30, 2015, the ALJ denied Plaintiff’s claim. Tr. 18-40. Plaintiff appealed the 4 denial, which resulted in a remand. Tr. 748-68. In the interim, Plaintiff filed a 5 subsequent Title XVI claim on June 28, 2017; the claims were consolidated. Tr. 6 793-96. A remand hearing was held on October 11, 2019. Tr. 656-98. On 7 October 31, 2019, the ALJ issued a partially favorable decision, finding Plaintiff 8 was not disabled prior to January 11, 2019, but became disabled on January 11, 9 2019. Tr. 623-55. 10 At step one of the sequential evaluation process, the ALJ found Plaintiff, 11 who met the insured status requirements through March 31, 2012, has not engaged 12 in substantial gainful activity since October 1, 2011. Tr. 631. At step two, the ALJ 13 found that Plaintiff has the following severe impairments: “spine; left shoulder; left 14 fourth digit partial amputation; cardiac conditions including leukocytosis, 15 hypertension, and coronary artery disease (CAD); respiratory condition; depressive 16 disorder, personality disorder, and substance use disorder.” Id. 17 18 19 in a September 23, 2011 order of dismissal after Plaintiff asked to withdraw his 20 request for hearing. Tr. 84-87. 2 ORDER - 7 Case 1:20-cv-03019-MKD 1 ECF No. 18 filed 08/20/20 PageID.1407 Page 8 of 21 At step three, the ALJ found Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals the severity of a listed 3 impairment. Tr. 632. The ALJ then concluded that prior to January 1, 2019, 4 Plaintiff had the RFC to perform light work with the following limitations: 5 6 7 8 9 10 11 12 13 14 [Plaintiff] could never climb ladders, ropes or scaffolds, work at unprotected heights or in proximity to hazards such as heavy machinery with dangerous moving parts. He could occasionally push and pull with the left upper extremity. He could never reach overhead with the left upper extremity. He could frequently reach, handle, finger and feel with the left upper extremity. He could occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl. He could perform work in which concentrated exposure to extreme cold, heat, pulmonary irritants or vibrations is not present. He could understand, remember and carry out simple, routine tasks and follow short, simple instructions. He could perform work that requires little or no judgment, and could perform simple duties that can be learned on the job in a short period. He could cope with occasional work setting change and occasional, routine interaction with supervisors. He could work in proximity to coworkers, but not in a team or cooperative effort. He could perform work that does not require interaction with the general public as an essential element of the job, but occasional incidental contact with the general public is not precluded. 15 Tr. 634. 16 At step four, the ALJ found Plaintiff was unable to perform any of his past 17 relevant work. Tr. 643. At step five, the ALJ found that, considering Plaintiff’s 18 age, education, work experience, RFC, and testimony from the vocational expert, 19 there were jobs that existed in significant numbers in the national economy that 20 Plaintiff could perform prior to January 11, 2019, such as mail room clerk, routing 2 ORDER - 8 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1408 Page 9 of 21 1 clerk, and small parts assembler. Tr. 644. Therefore, the ALJ concluded Plaintiff 2 was not under a disability, as defined in the Social Security Act, from the alleged 3 onset date of October 11, 2011 through January 11, 2019, and Plaintiff became 4 disabled on January 11, 2019. Tr. 645. The ALJ found that beginning January 11, 5 2019, Plaintiff became more physically limited, and he became unable to perform 6 light work; his sedentary RFC directed a finding of disability. Tr. 641-42. 7 Per 20 C.F.R. §§ 404.984 and 416.1484, the ALJ’s decision following this 8 Court’s prior remand became the Commissioner’s final decision for purposes of 9 judicial review. 10 11 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 12 him disability insurance benefits under Title II and supplemental security income 13 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 14 issues for review: 15 1. Whether the ALJ properly evaluated the medical opinion evidence; and 16 2. Whether the ALJ properly evaluated Plaintiff’s symptom claims. 17 ECF No. 14 at 2. 18 19 20 2 ORDER - 9 Case 1:20-cv-03019-MKD 1 2 3 ECF No. 18 filed 08/20/20 PageID.1409 Page 10 of 21 DISCUSSION A. Medical Opinion Evidence Plaintiff contends the ALJ erred in her consideration of the opinions of 4 David Lindgren, M.D., Venugopal Bellum, M.D., Sandra Elsner, LICSW, and 5 Emma Billings, Ph.D. ECF No. 14 at 12-17. 6 There are three types of physicians: “(1) those who treat the claimant 7 (treating physicians); (2) those who examine but do not treat the claimant 8 (examining physicians); and (3) those who neither examine nor treat the claimant 9 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 10 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 11 Generally, a treating physician’s opinion carries more weight than an examining 12 physician’s, and an examining physician’s opinion carries more weight than a 13 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 14 to opinions that are explained than to those that are not, and to the opinions of 15 specialists concerning matters relating to their specialty over that of 16 nonspecialists.” Id. (citations omitted). 17 If a treating or examining physician’s opinion is uncontradicted, the ALJ 18 may reject it only by offering “clear and convincing reasons that are supported by 19 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 20 “However, the ALJ need not accept the opinion of any physician, including a 2 ORDER - 10 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1410 Page 11 of 21 1 treating physician, if that opinion is brief, conclusory and inadequately supported 2 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 3 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 4 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 5 may only reject it by providing specific and legitimate reasons that are supported 6 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 7 F.3d 821, 830-31 (9th Cir. 1995)). The opinion of a nonexamining physician may 8 serve as substantial evidence if it is supported by other independent evidence in the 9 record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 10 1. Dr. Bellum and Dr. Lindgren 11 Dr. Bellum and Dr. Lindgren are treating providers who each completed 12 multiple questionnaires related to Plaintiff’s functioning. Tr. 306-07, 402-04, 52113 23, 526-28, 539-41, 1069-71, 1088-1108. In 2010, Dr. Bellum diagnosed Plaintiff 14 with chronic pain and coronary artery disease. Tr. 306. He opined Plaintiff cannot 15 participate in work or work preparation/search activities; he cannot stand or sit for 16 prolonged periods; and he can lift/carry up to five pounds occasionally and 10 17 pounds maximum. Tr. 306-07. In 2011, Dr. Bellum diagnosed Plaintiff with 18 chronic pain, drug abuse (marijuana), and coronary artery disease. Tr. 526. Dr. 19 Bellum opined Plaintiff could only engage in 21 to 30 hours of work or work 20 2 ORDER - 11 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1411 Page 12 of 21 1 preparation/search activities per week, at a light/medium exertion level. Tr. 5262 27. 3 In 2014 and 2015, Dr. Lindgren diagnosed Plaintiff with coronary artery 4 disease, daily headaches, and chronic back, shoulder, and neck pain. Tr. 402, 520. 5 He opined Plaintiff needs to lie down up to one hour per day due to his back pain; 6 continuous work would cause his condition to deteriorate; he would miss four or 7 more days of work per month if he were to work full-time; he is severely limited in 8 his exertional abilities as he is unable to lift at least two pounds or unable to 9 stand/walk; and he can occasionally handle and reach with this left upper 10 extremity. Tr. 403, 522. In 2015, he also opined on a separate form that Plaintiff 11 cannot sit or stand for long periods, he experiences exertional dyspnea, he has a 12 decreased ability to lift, and he cannot engage in work or work preparation/search 13 activities. Tr. 539. In 2016, 2017, 2018, and 2019, Dr. Lindgren diagnosed 14 Plaintiff with coronary artery disease, chronic back, shoulder and neck pain, and 15 headaches. Tr. 1069, 1088, 1091, 1106. He again opined Plaintiff has severely 16 limiting exertional limitations and he is unable to participate in work preparation 17 activities. Tr. 1069-70, 1088-89, 1091-92, 1106-07. The ALJ gave Dr. Bellum 18 and Dr. Lindgren’s opinions no weight. Tr. 640. As Dr. Bellum and Dr. 19 Lindgren’s opinions are contradicted by the opinion of Dr. Drenguis, Tr. 1059-64, 20 2 ORDER - 12 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1412 Page 13 of 21 1 the ALJ was required to give specific and legitimate reasons, supported by 2 substantial evidence, to reject the opinions. See Bayliss, 427 F.3d at 1216. 3 While the ALJ specifically addressed Dr. Bellum’s 2011 opinion, the ALJ 4 otherwise found the remainder of Dr. Bellum’s opinions and all of Dr. Lindgren’s 5 opinions addressed a legal conclusion that is reserved to the Commissioner. Tr. 6 640. A statement by a medical source that a claimant is “unable to work” is not a 7 medical opinion and is not due “any special significance.” 20 C.F.R. §§ 8 404.1527(d), 416.927(d). Nevertheless, the ALJ is required to consider medical 9 source opinions about any issue, including issues reserved to the Commissioner, by 10 evaluating the opinion in light of the evidence in the record and applying the 11 applicable factors. SSR 96-5p at *2-3. 12 As this Court previously found, an opinion regarding the Plaintiff’s ability to 13 engage in work activities is a functional opinion that must be addressed by the 14 ALJ. Tr. 758. As such, the ALJ erred in rejecting Dr. Lindgren and Dr. Bellum’s 15 opinions because they address an issue reserved to the Commissioner. Further, the 16 ALJ was previously instructed to address each of Dr. Lindgren and Dr. Bellum’s 17 opinions, Tr. 761-62, and the ALJ harmfully erred in failing to address several 18 disabling components of the opinions. 19 Defendant argues the ALJ properly rejected Dr. Lindgren and Dr. Bellum’s 20 opinion as she gave more weight to the opinions of Dr. LaVallie, Dr. Staley, Dr. 2 ORDER - 13 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1413 Page 14 of 21 1 Horn and Dr. Eisenhauer. ECF No. 15 at 8-9. However, the ALJ compared Dr. 2 Lindgren and Dr. Bellum’s opinion to Dr. Drenguis’ examination, Tr. 640, 3 although the examination contained multiple abnormalities, ECF No. 17 at 5 4 (citing Tr. 1061-63). While the ALJ found Dr. LaVallie and Dr. Staley’s opinions 5 were due more weight than Dr. Gordon Hale’s opinion because they had access to 6 more evidence, there is no analysis as to why the opinions were given more weight 7 than Dr. Lindgren and Dr. Bellum’s opinions, Tr. 639. Dr. Hale was a reviewing 8 State agency doctor, who provided an opinion on Plaintiff’s functioning when 9 Plaintiff first applied for benefits in 2013, Tr. 115-18, while Dr. Horn, Dr. 10 Eisenhauer, Dr. Staley and Dr. LaVallie provided opinions on the subsequent 11 application in 2018. Tr. 740-45, 785-90. The ALJ’s explanation as to why more 12 weight was afforded to reviewing opinions rendered with five additional years of 13 medical records available than the prior decision does not provide an explanation 14 as to why reviewing opinions were afforded more weight than treating opinions. 15 As such, the Court will not consider Defendant’s post hoc rationalization regarding 16 the weighing of the opinions. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 17 (The Court will “review only the reasons provided by the ALJ in the disability 18 determination and may not affirm the ALJ on a ground upon which he did not 19 rely.”). 20 2 ORDER - 14 Case 1:20-cv-03019-MKD 1 ECF No. 18 filed 08/20/20 PageID.1414 Page 15 of 21 Defendant further argues the ALJ properly complied with the prior Order, 2 and gave specific and legitimate reasons to reject the opinions, but the Court does 3 not find this argument persuasive for the reasons discussed herein. ECF No. 15 at 4 9-15. The previous Order found the ALJ erred in not addressing Dr. Lindgren’s 5 second March 10, 2015 opinion, Tr. 761-62, and though the ALJ now included a 6 citation to the opinion, the ALJ again did not provide any analysis of the opinion, 7 nor did the ALJ specifically address Dr. Lindgren’s three other opinions, despite 8 being directed to do so, Tr. 640. As the ALJ erred in her analysis of the rest of the 9 Dr. Lindgren and Dr. Bellum’s opinions, the ALJ is instructed to also reconsider 10 Dr. Bellum’s 2011 opinion. 11 On remand, the ALJ is instructed to individually address each of Dr. 12 Lindgren and Dr. Bellum’s opinions in their entirety, and incorporate the 13 limitations into the RFC, or give specific and legitimate reasons, supported by 14 substantial evidence, to reject the opinions. 15 2. Ms. Elsner 16 On May 11, 2012, Ms. Elsner, a treating counselor, provided an opinion on 17 Plaintiff’s functioning. Tr. 531-34. Ms. Elsner stated Plaintiff has major 18 depressive disorder, single episode, severe with psychosis. Tr. 531. Ms. Elsner 19 opined Plaintiff is unable to participate in work/work preparation activities. Id. As 20 the case is being remanded to reconsider Dr. Lindgren and Dr. Bellum’s opinions, 2 ORDER - 15 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1415 Page 16 of 21 1 the ALJ is also instructed to reconsider Ms. Elsner’s opinion and incorporate the 2 limitations into the RFC or give germane reasons to reject the opinion. For the 3 purposes of the remand, the Court notes that it has already rejected the reasoning 4 that Ms. Elsner’s opinion was not a medical opinion. Tr. 758-59. 5 3. Dr. Billings 6 On November 8, 2017, Dr. Billings performed a psychological consultative 7 examination and provided an opinion on Plaintiff’s functioning. Tr. 1050-57. Dr. 8 Billings diagnosed Plaintiff with major depressive disorder, single episode, 9 moderate, mild obsessive-compulsive disorder, paranoid personality disorder, and 10 probable caffeine sleep disorder with severe use. Tr. 1056. Dr. Billings found 11 Plaintiff to be highly irritable, generally antagonistic, and suspicious of 12 people/organizations, and opined that if Plaintiff behaved in the same manner at an 13 employment interview, it is unlikely he would be judged as acceptable for 14 employment, and he may have relationship problems among coworkers. Tr. 1057. 15 The ALJ gave Dr. Billings’ opinion less weight. Tr. 640-41. 16 As the case is being remanded to reconsider Dr. Bellum and Dr. Lindgren’s 17 opinions, the ALJ is also instructed to reconsider Dr. Billings’ opinion and to 18 incorporate the limitations into the RFC or give specific and legitimate reasons, 19 supported by substantial evidence, to reject the opinion. The ALJ is further 20 instructed to call both a medical expert and a psychological expert at the hearing to 2 ORDER - 16 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1416 Page 17 of 21 1 assist with determining Plaintiff’s severe impairments, whether he met or equaled a 2 listing, and the limitations caused by his impairments during the relevant 3 adjudicative period. 4 5 B. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 6 convincing in discrediting his symptom claims. ECF No. 14 at 17-21. An ALJ 7 engages in a two-step analysis to determine whether to discount a claimant’s 8 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 9 “First, the ALJ must determine whether there is objective medical evidence of an 10 underlying impairment which could reasonably be expected to produce the pain or 11 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 12 “The claimant is not required to show that [the claimant’s] impairment could 13 reasonably be expected to cause the severity of the symptom [the claimant] has 14 alleged; [the claimant] need only show that it could reasonably have caused some 15 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 16 Second, “[i]f the claimant meets the first test and there is no evidence of 17 malingering, the ALJ can only reject the claimant’s testimony about the severity of 18 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 19 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 20 omitted). General findings are insufficient; rather, the ALJ must identify what 2 ORDER - 17 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1417 Page 18 of 21 1 symptom claims are being discounted and what evidence undermines these claims. 2 Id. (quoting Lester, 81 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th 3 Cir. 2002) (requiring the ALJ to sufficiently explain why it discounted claimant’s 4 symptom claims)). “The clear and convincing [evidence] standard is the most 5 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 6 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 7 924 (9th Cir. 2002)). 8 Factors to be considered in evaluating the intensity, persistence, and limiting 9 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 10 duration, frequency, and intensity of pain or other symptoms; 3) factors that 11 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 12 side effects of any medication an individual takes or has taken to alleviate pain or 13 other symptoms; 5) treatment, other than medication, an individual receives or has 14 received for relief of pain or other symptoms; 6) any measures other than treatment 15 an individual uses or has used to relieve pain or other symptoms; and 7) any other 16 factors concerning an individual’s functional limitations and restrictions due to 17 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 18 404.1529(c), 416.929(c). The ALJ is instructed to “consider all of the evidence in 19 an individual’s record,” to “determine how symptoms limit ability to perform 20 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 2 ORDER - 18 Case 1:20-cv-03019-MKD 1 ECF No. 18 filed 08/20/20 PageID.1418 Page 19 of 21 The ALJ found that Plaintiff’s medically determinable impairments could 2 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 3 statements concerning the intensity, persistence, and limiting effects of his 4 symptoms were not entirely consistent with the evidence. Tr. 635-36. 5 The ALJ’s evaluation of Plaintiff’s symptom claims and the resulting 6 limitations largely relies on the ALJ’s assessment of the medical evidence. Having 7 determined a remand is necessary to readdress the medical source opinions, any 8 reevaluation must necessarily entail a reassessment of Plaintiff’s subjective 9 symptom claims. Thus, the Court need not reach this issue and on remand the ALJ 10 must also carefully reevaluate Plaintiff’s symptom claims in the context of the 11 entire record. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because 12 we remand the case to the ALJ for the reasons stated, we decline to reach 13 [plaintiff’s] alternative ground for remand.”). 14 15 C. Remedy Plaintiff urges this Court to remand for an immediate award of benefits. 16 ECF No. 2 at 15, 21. 17 “The decision whether to remand a case for additional evidence, or simply to 18 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 19 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). 20 When the Court reverses an ALJ’s decision for error, the Court “ordinarily must 2 ORDER - 19 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1419 Page 20 of 21 1 remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 2 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“the 3 proper course, except in rare circumstances, is to remand to the agency for 4 additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 5 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a number of Social Security 6 cases, the Ninth Circuit has “stated or implied that it would be an abuse of 7 discretion for a district court not to remand for an award of benefits” when three 8 conditions are met. Garrison, 759 F.3d at 1020 (citations omitted). Under the 9 credit-as-true rule, where (1) the record has been fully developed and further 10 administrative proceedings would serve no useful purpose; (2) the ALJ has failed 11 to provide legally sufficient reasons for rejecting evidence, whether claimant 12 testimony or medical opinion; and (3) if the improperly discredited evidence were 13 credited as true, the ALJ would be required to find the claimant disabled on 14 remand, the Court will remand for an award of benefits. Revels v. Berryhill, 874 15 F.3d 648, 668 (9th Cir. 2017). Even where the three prongs have been satisfied, 16 the Court will not remand for immediate payment of benefits if “the record as a 17 18 19 20 2 ORDER - 20 Case 1:20-cv-03019-MKD ECF No. 18 filed 08/20/20 PageID.1420 Page 21 of 21 1 whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 2 F.3d at 1021. 3 The Court finds further proceedings are necessary to resolve conflicts in the 4 medical opinion evidence and to take expert testimony. As such, the case is 5 remanded for further proceedings consistent with this Order. 6 7 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 8 ALJ’s decision is not supported by substantial evidence and is not free of harmful 9 legal error. Accordingly, IT IS HEREBY ORDERED: 10 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 11 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 12 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 13 REVERSING and REMANDING the matter to the Commissioner of Social 14 Security for further proceedings consistent with this recommendation pursuant to 15 sentence four of 42 U.S.C. § 405(g). 16 The District Court Executive is directed to file this Order, provide copies to 17 counsel, and CLOSE THE FILE. 18 DATED August 20, 2020. 19 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 20 2 ORDER - 21

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