Moon v. Kijakazi, No. 1:2021cv03063 - Document 24 (E.D. Wash. 2022)
Court Description: ORDER GRANTING, IN PART, 16 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT and remanding to the Commissioner for additional proceedings; denying 22 Defendant's Motion for Summary Judgment. Case is Closed. Signed by Senior Judge Lonny R. Suko. (TR, Case Administrator)
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Moon v. Kijakazi Doc. 24 Case 1:21-cv-03063-LRS ECF No. 24 filed 06/29/22 PageID.1544 Page 1 of 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Jun 29, 2022 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 MINERVA M., NO: 1:21-CV-03063-LRS Plaintiff, 8 9 10 11 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. 12 13 14 BEFORE THE COURT are the parties’ cross motions for summary 15 judgment. ECF Nos. 16, 22. This matter was submitted for consideration without 16 oral argument. Plaintiff is represented by Attorney D. James Tree. Defendant is 17 represented by Special Assistant United States Attorney Jeffrey E. Staples. The 18 Court has reviewed the administrative record, the parties’ completed briefing, and 19 is fully informed. For the reasons discussed below, the Court GRANTS, in part, 20 Plaintiff’s Motion for Summary Judgment, ECF No. 16, DENIES Defendant’s 21 Motion for Summary Judgment, ECF No. 22, and REMANDS the case back to the Commissioner for additional proceedings. ORDER - 1 Dockets.Justia.com Case 1:21-cv-03063-LRS 1 2 ECF No. 24 filed 06/29/22 PageID.1545 Page 2 of 17 JURISDICTION Plaintiff Minerva M. 1 protectively filed an application for Supplemental 3 Security Income (SSI) on June 10, 2014, Tr. 140, alleging an onset date of June 1, 4 2014, Tr. 238, due to back pain/degenerative disc disease, leg pain, diabetes, 5 hypertension, depression/anxiety, posttraumatic stress disorder (PTSD), 6 agoraphobia, stomach cysts, bilateral foot neuropathy, and insomnia, Tr. 294. 7 Plaintiff’s application was denied initially, Tr. 147-50, and upon reconsideration, 8 Tr. 164-66. A hearing before Administrative Law Judge Glen Meyers (“ALJ”) 9 was conducted on July 14, 2016. Tr. 31-90. Plaintiff was represented by an 10 attorney and testified at the hearing. Id. The ALJ also took the testimony of 11 vocational expert Ronnie Lenore. Id. The ALJ entered an unfavorable decision on 12 May 10, 2017. Tr. 13-22. The Appeals Council denied review on June 8, 2018. 13 Tr. 1-6. Therefore, the ALJ’s May 10, 2017 decision became the final decision of 14 the Commissioner. 15 Plaintiff requested judicial review of the ALJ’s decision from this Court, and 16 the case was remanded for additional proceedings. Tr. 748-67. The ALJ held a 17 second hearing on January 5, 2021. Tr. 710-47. He took testimony from Plaintiff 18 and vocational expert Jeffrey Tittelfitz. Id. The ALJ entered an unfavorable 19 1 20 21 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial, and, subsequently, Plaintiff’s first name only, throughout this decision. ORDER - 2 Case 1:21-cv-03063-LRS ECF No. 24 filed 06/29/22 PageID.1546 Page 3 of 17 1 decision on January 29, 2021. Tr. 687-703. The Appeals Council did not assume 2 jurisdiction over the case pursuant to 20 C.F.R. § 416.1484(a). Therefore, the 3 January 29, 2021 ALJ decision became the final decision of the Commissioner. 4 The matter is now before this Court pursuant to 42 U.S.C. §§ 405(g); 1383(c). 5 ECF No. 1. 6 7 BACKGROUND The facts of the case are set forth in the administrative hearing and 8 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 9 Only the most pertinent facts are summarized here. 10 Plaintiff was 40 years old at the date of application. Tr. 238. The highest 11 grade Plaintiff completed was the eighth grade in 1990. Tr. 295. At application 12 Plaintiff reported a work history that included production clerk, fruit sorter, retail 13 clerk, and assistance secretary. Tr. 296. She stated that she stopped working on 14 December 31, 2006 due to her impairments. Tr. 294. 15 16 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 17 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 18 limited; the Commissioner’s decision will be disturbed “only if it is not supported 19 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 20 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 21 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence equates to ORDER - 3 Case 1:21-cv-03063-LRS ECF No. 24 filed 06/29/22 PageID.1547 Page 4 of 17 1 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 2 citation omitted). In determining whether the standard has been satisfied, a 3 reviewing court must consider the entire record as a whole ratherm than searching 4 for supporting evidence in isolation. Id. 5 In reviewing a denial of benefits, a district court may not substitute its 6 judgment for that of the Commissioner. “The court will uphold the ALJ’s 7 conclusion when the evidence is susceptible to more than one rational 8 interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 9 Further, a district court will not reverse an ALJ’s decision on account of an error 10 that is harmless. Id. An error is harmless where it is “inconsequential to the 11 [ALJ’s] ultimate nondisability determination.” Id. (quotation and citation 12 omitted). The party appealing the ALJ’s decision generally bears the burden of 13 establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 14 15 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 16 the meaning of the Social Security Act. First, the claimant must be “unable to 17 engage in any substantial gainful activity by reason of any medically determinable 18 physical or mental impairment which can be expected to result in death or which 19 has lasted or can be expected to last for a continuous period of not less than 12 20 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 21 “of such severity that he is not only unable to do his previous work[,] but cannot, considering his age, education, and work experience, engage in any other kind of ORDER - 4 Case 1:21-cv-03063-LRS 1 ECF No. 24 filed 06/29/22 PageID.1548 Page 5 of 17 substantial gainful work which exists in the national economy.” 42 U.S.C. § 2 423(d)(2)(A). 3 The Commissioner has established a five-step sequential analysis to 4 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 5 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 6 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 7 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 8 C.F.R. § 416.920(b). 9 If the claimant is not engaged in substantial gainful activity, the analysis 10 proceeds to step two. At this step, the Commissioner considers the severity of the 11 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 12 “any impairment or combination of impairments which significantly limits [his or 13 her] physical or mental ability to do basic work activities,” the analysis proceeds to 14 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 15 this severity threshold, however, the Commissioner must find that the claimant is 16 not disabled. 20 C.F.R. § 416.920(c). 17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. § 20 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 21 enumerated impairments, the Commissioner must find the claimant disabled and award benefits. 20 C.F.R. § 416.920(d). ORDER - 5 Case 1:21-cv-03063-LRS 1 ECF No. 24 filed 06/29/22 PageID.1549 Page 6 of 17 If the severity of the claimant’s impairment does not meet or exceed the 2 severity of the enumerated impairments, the Commissioner must pause to assess 3 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 4 defined generally as the claimant’s ability to perform physical and mental work 5 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 6 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 7 At step four, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing work that he or she has performed in 9 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 10 capable of performing past relevant work, the Commissioner must find that the 11 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 12 performing such work, the analysis proceeds to step five. 13 At step five, the Commissioner considers whether, in view of the claimant’s 14 RFC, the claimant is capable of performing other work in the national economy. 15 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 16 must also consider vocational factors such as the claimant’s age, education and 17 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 18 adjusting to other work, the Commissioner must find that the claimant is not 19 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 20 other work, analysis concludes with a finding that the claimant is disabled and is 21 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). ORDER - 6 Case 1:21-cv-03063-LRS 1 ECF No. 24 filed 06/29/22 PageID.1550 Page 7 of 17 The claimant bears the burden of proof at steps one through four. Tackett v. 2 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, 3 the burden shifts to the Commissioner to establish that (1) the claimant is capable 4 of performing other work; and (2) such work “exists in significant numbers in the 5 national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 6 389 (9th Cir. 2012). 7 ALJ’S FINDINGS 8 At step one, the ALJ found that Plaintiff has not engaged in substantial 9 gainful activity since the date of application, June 10, 2014. Tr. 690. At step two, 10 the ALJ found that Plaintiff has the following severe impairments: diabetes 11 mellitus with peripheral neuropathy; obesity; sciatica status post remote lumbar 12 fusion; depressive disorder; anxiety disorder; and PTSD. Tr. 690. At step three, 13 the ALJ found that Plaintiff’s impairments or combinations of impairments do not 14 meet or equal the severity of one of the listed impairments. Tr. 692. 15 16 17 18 19 The ALJ then found that Plaintiff has the RFC to perform sedentary work as defined in 20 C.F.R. § 416.967(a) with the following limitations: occasional stooping; no crouching, crawling, kneeling, climbing ramps, stairs, ropes, ladders, or scaffolds; frequent reaching, handling, and fingering; capable of engaging in unskilled, repetitive, routine tasks in 2-hour increments; no contact with the public; capable of working in proximity to but not in coordination with coworkers; capable of occasional contact with supervisors. 20 21 Tr. 694. The ALJ identified Plaintiff’s past relevant work as produce clerk and food sales clerk and found that she could not perform this past relevant work. Tr. ORDER - 7 Case 1:21-cv-03063-LRS ECF No. 24 filed 06/29/22 PageID.1551 Page 8 of 17 1 701. At step five, the ALJ found that considering Plaintiff’s age, education, work 2 experience, and RFC, there are other jobs that exist in significant numbers in the 3 national economy that Plaintiff could perform, including final assembler, 4 packager/sealer, and table worker. Tr. 702. On that basis, the ALJ concluded that 5 Plaintiff was not under a disability, as defined in the Social Security Act, from the 6 date of application, June 10, 2014, through the date of the decision. Tr. 703. 7 ISSUES 8 Plaintiff seeks judicial review of the Commissioner’s final decision denying 9 her SSI under Title XVI. ECF No. 16. Plaintiff raises the following issues for this 10 Court’s review: 11 1. Whether the ALJ properly addressed the medical opinions in the record; 12 2. Whether the ALJ properly addressed Plaintiff’s symptom statements; and 13 3. Whether the ALJ met his burden at step five. 14 15 16 DISCUSSION 1. Medical Source Opinions Plaintiff argues that the ALJ failed to properly address the opinions from 17 N.K. Marks, Ph.D., Gabrielle Mondragon, MSW, Portia Jones, M.D., and Kathleen 18 Mayers, Ph.D. ECF No. 16 at 9-17. 19 There are three types of physicians: “(1) those who treat the claimant 20 (treating physicians); (2) those who examine but do not treat the claimant 21 (examining physicians); and (3) those who neither examine nor treat the claimant [but who review the claimant's file] (nonexamining [or reviewing] physicians).” ORDER - 8 Case 1:21-cv-03063-LRS ECF No. 24 filed 06/29/22 PageID.1552 Page 9 of 17 1 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 2 Generally, a treating physician’s opinion carries more weight than an examining 3 physician’s, and an examining physician’s opinion carries more weight than a 4 reviewing physician's. Id. If a treating or examining physician's opinion is 5 uncontradicted, the ALJ may reject it only by offering “clear and convincing 6 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 7 1211, 1216 (9th Cir. 2005). Conversely, “[i]f a treating or examining doctor's 8 opinion is contradicted by another doctor’s opinion, an ALJ may reject it by 9 providing specific and legitimate reasons that are supported by substantial 10 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). 11 A. 12 On August 27, 2018, Dr. Marks completed a psychodiagnostics evaluation N.K. Marks, Ph.D. 13 at the request for Plaintiff’s case worker through the Department of social and 14 Health Services. Tr. 1022-25. She diagnosed Plaintiff with generalized anxiety 15 disorder, unspecified depressive disorder, and unspecified trauma- and stressor- 16 related disorder. Tr. 1025. She provided the following summary: 17 18 19 20 21 Results indicate severe levels of anxiety and depression, in addition to some past trauma that may affect her ability to work until she has successfully completed therapy and other interventions. She should be able to participate in 10 hours of TANF services initially, and requires ongoing therapy to assists [sic] with her symptoms. Tr. 1025. The ALJ failed to discuss the opinion in his decision except that Dr. Marks found Plaintiff’s “prognosis was ‘good, with ongoing therapy. Her conditions are ORDER - 9 Case 1:21-cv-03063-LRS ECF No. 24 filed 06/29/22 PageID.1553 Page 10 of 17 1 very treatable’ with the very type of treatment she was receiving at CMH.” Tr. 2 696. The ALJ never weighed the opinion or discussed the limitations Dr. Marks 3 opined. Tr. 687-703. Federal Regulations state that “[r]egardless of its source, we 4 will evaluate every medical opinion we receive.” 20 C.F.R. § 416.927(c). Social 5 Security Ruling (S.S.R.) 96-8p states that the residual functional capacity 6 assessment “must always consider and address medical source opinions. If the 7 RFC assessment conflicts with an opinion from a medical source, the adjudicator 8 must explain why the opinion was not adopted.” Therefore, the ALJ’s failure to 9 consider or discuss the opinion is an error. 10 Defendant argues that Dr. Marks’ opinion was consistent with the RFC 11 determination; therefore, the ALJ was not required to discuss the opinion. ECF 12 No. 22 at 6-7. However, Dr. Marks stated that Plaintiff was limited to ten hours of 13 TANF services per week. According to the multiple letters from Plaintiff’s case 14 worker, for adults to receive TANF public assistance, they are required to work, 15 actively look for work, or get training to work for 32 to 40 hours per week, but 16 these hours can be deferred or reduced. Tr. 971, 976, 981, 987, 993, 998, 1016, 17 1030. Therefore, Dr. Marks opined that Plaintiff was limited to 10 hours a week of 18 work-related activities. Tr. 1025. A limitation to 10 hours a week of work 19 activity was not included in the RFC determination. Therefore, Defendant’s 20 argument is unsuccessful. 21 Not only did the ALJ fail to weigh Dr. Marks’ opinion, but when he inaccurately represented the evaluation Dr. Marks performed in his decision, ORDER - 10 Case 1:21-cv-03063-LRS 1 ECF No. 24 filed 06/29/22 PageID.1554 Page 11 of 17 demonstrating that he did not properly review the evidence. In making the RFC 2 determination, the ALJ cited Dr. Marks’ evaluation (Exhibit B19F/69-72) a total of 3 six times. Tr. 694-701. First, the ALJ cited the evaluation in disregarding 4 Plaintiff’s symptom statements as supported for the following finding: “despite her 5 alleged disabling mental impairments, the claimant exhibited normal mood/affect 6 during appointments with normal mental status examinations; ‘Alert and 7 cooperative, normal affect, normal attention span and insight.’” Tr. 696 citing 8 Exhibit B19F/71-72. However, Dr. Marks’ mental status examination actually 9 showed “anxious, depressed” affect and mood, partial orientation, poor overall 10 fund of knowledge, abstract reasoning “somewhat concrete and literal,” fair 11 working memory, and “[o]verall problem solving and judgment appear to be intact 12 however history suggests that in actual life situations, judgment is poor and 13 problem solving is weak.” Tr. 1024-25. Therefore, the normal findings referred to 14 by the ALJ are not an accurate representation of the mental status exam. 15 Second, the ALJ cites Dr. Marks’ evaluation when discussing Plaintiff’s 16 symptom statements as evidence that difficult relationships with others are not 17 disability mental conditions: “In August 2018, examining physician N.K. Marks, 18 Ph.D. opined the claimant’s prognosis was ‘good, with ongoing therapy. Her 19 conditions are very treatable’ with the very type of treatment she was receiving at 20 CMH.” Tr. 696 citing Exhibit B19F/72. This is the only accurate citation to the 21 record in regards to the prognosis, but it overlooks the fact that Dr. Marks limited Plaintiff to only ten hours of work activity at the time of the opinion. ORDER - 11 Case 1:21-cv-03063-LRS 1 ECF No. 24 filed 06/29/22 PageID.1555 Page 12 of 17 Third, when assigning little weight to Dr. Mayers’ September 2016 opinion, 2 the ALJ cites Dr. Marks’ evaluation as support for the following statement: “she 3 has friends and sees her friends when they visit her home. She care for and 4 socializes with her children. She interact appropriately with treatment providers. 5 She goes shopping in stores without reported difficulty.” Tr. 699 citing Exhibit 6 19F/71-72. Nothing in Dr. Marks’ evaluation discusses Plaintiff’s friends, caring 7 for her children, or shopping in stores. When discussing daily activities, Dr. Marks 8 states that Plaintiff “can take care of personal needs but it takes her extra time due 9 to chronic pain. She has to sit down and rest between activities. Right now, she is 10 on crutches and can’t do very much.” Tr. 1024. The mental status examine 11 described Plaintiff as cooperative, but also noted that plaintiff had an anxious, 12 depressed affect and mood. Tr. 1024. 13 Fourth, when assigning little weight to the opinions from MSW Mondragon, 14 the ALJ cites Dr. Marks’ evaluation as support for the statement that her opinion 15 was “inconsistent with the claimant’s admitted level and frequency of her activities 16 of daily living.” Tr. 699 citing Exhibit B19F/71. As discussed above, Dr. Marks’ 17 description of Plaintiff’s daily activities is limited to “care of personal needs but it 18 takes her extra time due to chronic pain. She has to sit down and rest between 19 activities. Right now, she is on crutches and can’t do very much.” Tr. 1024. 20 Therefore, this fails to support the ALJ’s findings. 21 Fifth, when assigning little weight to the opinion of Dr. Jones, the ALJ cites Dr. Marks’ evaluation as “evidence that shows the claimant’s [sic] has consistent ORDER - 12 Case 1:21-cv-03063-LRS 1 ECF No. 24 filed 06/29/22 PageID.1556 Page 13 of 17 activities of daily living.” Tr. 700 citing Exhibit B19F/71. Again, Dr. Marks’ 2 description of Plaintiff’s daily activities is limited to “care of personal needs but it 3 takes her extra time due to chronic pain. She has to sit down and rest between 4 activities. Right now, she is on crutches and can’t do very much.” Tr. 1024. This 5 fails to support the ALJ’s finding. Sixth, when giving little weight to Dr. Mayers’ August 2016 opinion, the 6 7 ALJ cites Dr. Marks’ evaluation as evidence to support his finding that “the 8 claimant has friends and sees her friends when they visit her home. She care for 9 and socializes with her children. She attends appointments and interacts 10 appropriately with treatment providers. She goes shopping in stores without 11 reported difficulty.” Tr. 700-01 citing Exhibit B19F/71-72. Again, nothing in Dr. 12 Marks’ evaluation discusses Plaintiff’s friends, caring for her children, or shopping 13 in stores. When discussing daily activities, Dr. Marks states that Plaintiff “can take 14 care of personal needs but it takes her extra time due to chronic pain. She has to sit 15 down and rest between activities. Right now, she is on crutches and can’t do very 16 much.” Tr. 1024. The mental status examine described Plaintiff as cooperative, 17 but also noted that Plaintiff had an anxious, depressed affect and mood. Tr. 1024. 18 Therefore, the ALJ’s citation to the evaluation fails to support his finding. Thus, the ALJ erred in failing to assign weight to the opinion and failing to 19 20 accurately represent the evidence from Dr. Marks when determining Plaintiff’s 21 RFC. ORDER - 13 Case 1:21-cv-03063-LRS ECF No. 24 filed 06/29/22 PageID.1557 Page 14 of 17 1 B. 2 Plaintiff also challenges the weight the ALJ assigned to the opinions of Remaining opinions 3 Gabrielle Mondragon, MSW, Portia Jones, M.D., and Kathleen Mayers, Ph.D. 4 ECF No. 16 at 11-17. 5 This case is being remanded for the ALJ to properly address the opinion of 6 Dr. Marks. See supra. Here, the ALJ failed to provide any weight to Dr. Marks’ 7 opinion, and he failed to accurately represent Dr. Marks’ evaluation when 8 assigning little weight to the opinions of MSW Mondragon, Dr. Jones, and Dr. 9 Mayers. The regulations require the ALJ to consider the factor of consistency 10 when weighing a medical opinion. 20 C.F.R. § 416.927(c)(4) (“Generally, the 11 more consistent a medical opinion is with the record as a whole, the more weight 12 we will give to that medical opinion.”). Therefore, on remand, the ALJ will 13 readdress the opinions of MSW Mondragon, Dr. Jones, and Dr. Mayers after 14 properly addressing Dr. Marks’ opinion and evaluation. 15 2. 16 Plaintiff’s Symptom Statements Plaintiff argues that the ALJ erred in evaluating his symptom testimony. 17 ECF No. 16 at 4-9. 18 It is generally the province of the ALJ to make determinations regarding the 19 reliability of Plaintiff’s symptom statements, Andrews v. Shalala, 53 F.3d 1035, 20 1039 (9th Cir. 1995), but the ALJ’s findings must be supported by specific cogent 21 reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s ORDER - 14 Case 1:21-cv-03063-LRS 1 ECF No. 24 filed 06/29/22 PageID.1558 Page 15 of 17 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 2 1273, 1281 (9th Cir. 1996); Lester, 81 F.3d at 834. 3 The ALJ found Plaintiff’s “statements concerning the intensity, persistence, 4 and limiting effects of these symptoms are not entirely consistent with the medical 5 evidence and other evidence in the record for the reasons explained in this 6 decision.” Tr. 695. The evaluation of a claimant’s symptom statements and their 7 resulting limitations relies, in part, on the assessment of the medical evidence. See 8 20 C.F.R. § 416.929(c); S.S.R. 16-3p. Therefore, in light of the case being 9 remanded for the ALJ to readdress the medical opinions addressed above, a new 10 assessment of Plaintiff’s subjective symptom statements will be necessary. 11 3. 12 Step Five Plaintiff argues that the ALJ failed to meet his burden at step five by asserting 13 that the jobs identified by the vocational expert do not exist in substantial numbers. 14 ECF No. 16 at 18-21. This case is being remanded for the ALJ to properly address 15 the medical opinions in the record and Plaintiff’s symptom statements. This will 16 require the ALJ to make a new RFC determination, which results in the need for a 17 new step four determination and a new step five determination. Therefore, the ALJ 18 will call a vocational expert to testify at any remand proceedings and allow Plaintiff 19 the opportunity to cross-examine the vocational expert. 20 21 CONCLUSION Plaintiff requests that the Court remand the case for an immediate award of benefits. ECF No. 16 at 21. ORDER - 15 Case 1:21-cv-03063-LRS ECF No. 24 filed 06/29/22 PageID.1559 Page 16 of 17 1 The decision whether to remand for further proceedings or reverse and 2 award benefits is within the discretion of the district court. McAllister v. Sullivan, 3 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 4 where “no useful purpose would be served by further administrative proceedings, 5 or where the record has been thoroughly developed,” Varney v. Sec’y of Health & 6 Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by 7 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 8 (9th Cir. 1990); see also Garrison v. Chater, 759 F.3d 995, 1021 (9th Cir. 2014) 9 (noting that a district court may abuse its discretion not to remand for benefits 10 when all of these conditions are met). This policy is based on the “need to 11 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 12 outstanding issues that must be resolved before a determination can be made, and it 13 is not clear from the record that the ALJ would be required to find a claimant 14 disabled if all the evidence were properly evaluated, remand is appropriate. See 15 Benecke, 379 F.3d at 595-96; Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 16 17 2000). The Court finds that further administrative proceedings are appropriate. See 18 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) 19 (remand for benefits is not appropriate when further administrative proceedings 20 would serve a useful purpose). Here, it is not clear that the ALJ would be required 21 to find Plaintiff disabled if all the evidence were properly evaluated. ORDER - 16 Case 1:21-cv-03063-LRS 1 ECF No. 24 filed 06/29/22 PageID.1560 Page 17 of 17 On remand, this case is to be assigned to a new ALJ. That ALJ must 2 readdress the medical opinions discussed above, readdress Plaintiff’s symptom 3 statements, and make a new step five determine. In addition, the ALJ should 4 supplement the record with any outstanding medical evidence and take testimony 5 from a vocational expert at any remand proceedings. 6 ACCORDINGLY, IT IS HEREBY ORDERED: 7 1. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is GRANTED, 8 in part, and the matter is REMANDED to the Commissioner for 9 additional proceedings. 10 2. Defendant’s Motion for Summary Judgment, ECF No. 2, is DENIED. 11 The District Court Clerk is directed to enter this Order and provide copies to 12 13 counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. DATED June 29, 2022. 14 LONNY R. SUKO Senior United States District Judge 15 16 17 18 19 20 21 ORDER - 17
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