Trent v. Commissioner of Social Security, No. 2:2017cv00406 - Document 16 (E.D. Wash. 2019)
Court Description: ORDER GRANTING 11 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 13 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. FILE CLOSED. Signed by Judge Rosanna Malouf Peterson. (AN, Courtroom Deputy)
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Trent v. Commissioner of Social Security Doc. 16 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Mar 25, 2019 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 CHARLES EDWARD T., NO: 2:17-CV-00406-FVS 8 9 10 Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross motions for summary 14 judgment. ECF Nos. 11 and 13. This matter was submitted for consideration 15 without oral argument. The plaintiff is represented by Attorney Dana C. Madsen. 16 The defendant is represented by Special Assistant United States Attorney Jeffrey 17 E. Staples. The Court has reviewed the administrative record and the parties’ 18 completed briefing and is fully informed. For the reasons discussed below, the 19 court GRANTS Plaintiff’s Motion for Summary Judgment, ECF No. 11, and 20 DENIES Defendant’s Motion for Summary Judgment, ECF No. 13. 21 ORDER ~ 1 Dockets.Justia.com 1 JURISDICTION 2 Plaintiff Charles Edward T. protectively filed for supplemental security 3 income on September 16, 2013, alleging an onset date of January 1, 1993. Tr. 192- 4 97. At the hearing, Plaintiff amended the alleged onset date to September 16, 5 2013. Tr. 56. Benefits were denied initially (Tr. 114-17) and upon reconsideration 6 (Tr. 121-23). Plaintiff requested a hearing before an administrative law judge 7 (“ALJ”), which was held before ALJ Caroline Siderius on May 3, 2016. Tr. 52-91. 8 Plaintiff was represented by counsel and testified at the hearing. Id. The ALJ 9 denied benefits (Tr. 18-36) and the Appeals Council denied review. Tr. 1. The 10 matter is now before this court pursuant to 42 U.S.C. § 1383(c)(3). 11 BACKGROUND 12 The facts of the case are set forth in the administrative hearing and 13 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 14 Only the most pertinent facts are summarized here. 15 Plaintiff was 32 years old at the time of the hearing. Tr. 64. He testified that 16 he has a high school diploma and was in special education classes. Tr. 65. 17 Plaintiff lived with his mother at the time of the hearing, and has lived with her 18 since he was released from his 11-year prison term in September 2013. Tr. 64. He 19 has work history in production, and window framing, for short periods of time, but 20 the ALJ determined that Plaintiff has no past relevant work. Tr. 65, 87-88. He 21 testified that he was “let go” from jobs because he was too slow and had to do math in his head. Tr. 65-66. Plaintiff reported that he applies for jobs as part of ORDER ~ 2 1 his daily activities, but no one hires him; and he was denied when he applied for 2 vocational rehabilitation services. Tr. 69. Plaintiff testified that he feels depressed 3 “somewhat often”; needs reminders from his mother to take his medication and do 4 household chores; has trouble bending over and lifting; needs help understanding 5 letters; has chest pain and difficulty breathing; and has hearing loss in his right ear. 6 Tr. 68-71. Plaintiff alleges disability due to intellectual disability and 7 psychological impairments. See Tr. 114, 121. 8 9 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 10 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 11 limited; the Commissioner’s decision will be disturbed “only if it is not supported 12 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 13 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 14 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 15 (quotation and citation omitted). Stated differently, substantial evidence equates to 16 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 17 citation omitted). In determining whether the standard has been satisfied, a 18 reviewing court must consider the entire record as a whole rather than searching 19 for supporting evidence in isolation. Id. 20 21 In reviewing a denial of benefits, a district court may not substitute its judgment for that of the Commissioner. If the evidence in the record “is susceptible to more than one rational interpretation, [the court] must uphold the ORDER ~ 3 1 ALJ’s findings if they are supported by inferences reasonably drawn from the 2 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 3 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 4 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 5 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 6 party appealing the ALJ’s decision generally bears the burden of establishing that 7 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 8 9 FIVE–STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 10 the meaning of the Social Security Act. First, the claimant must be “unable to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than twelve 14 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 15 “of such severity that he is not only unable to do his previous work[,] but cannot, 16 considering his age, education, and work experience, engage in any other kind of 17 substantial gainful work which exists in the national economy.” 42 U.S.C. § 18 1382c(a)(3)(B). 19 The Commissioner has established a five-step sequential analysis to 20 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 21 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial ORDER ~ 4 1 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 2 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 6 “any impairment or combination of impairments which significantly limits [his or 7 her] physical or mental ability to do basic work activities,” the analysis proceeds to 8 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 9 this severity threshold, however, the Commissioner must find that the claimant is 10 11 not disabled. 20 C.F.R. § 416.920(c). At step three, the Commissioner compares the claimant’s impairment to 12 severe impairments recognized by the Commissioner to be so severe as to preclude 13 a person from engaging in substantial gainful activity. 20 C.F.R. § 14 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 15 enumerated impairments, the Commissioner must find the claimant disabled and 16 award benefits. 20 C.F.R. § 416.920(d). 17 If the severity of the claimant’s impairment does not meet or exceed the 18 severity of the enumerated impairments, the Commissioner must pause to assess 19 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 20 defined generally as the claimant’s ability to perform physical and mental work 21 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. ORDER ~ 5 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in 3 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 4 capable of performing past relevant work, the Commissioner must find that the 5 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 6 performing such work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing other work in the national economy. 9 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 10 must also consider vocational factors such as the claimant’s age, education and 11 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 12 adjusting to other work, the Commissioner must find that the claimant is not 13 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 14 other work, analysis concludes with a finding that the claimant is disabled and is 15 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 16 The claimant bears the burden of proof at steps one through four above. 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 18 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 19 capable of performing other work; and (2) such work “exists in significant 20 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 21 700 F.3d 386, 389 (9th Cir. 2012). ORDER ~ 6 1 ALJ’S FINDINGS 2 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 3 activity since September 16, 2013, the application date. Tr. 23. At step two, the 4 ALJ found Plaintiff has the following severe impairments: learning disorder vs. 5 borderline intellectual functioning; social anxiety disorder; dysthymia; depressive 6 disorder, NOS; personality disorder. Tr. 23. At step three, the ALJ found that 7 Plaintiff does not have an impairment or combination of impairments that meets or 8 medically equals the severity of a listed impairment. Tr. 23. The ALJ then found 9 that Plaintiff has the RFC 10 to perform a full range of work at all exertional levels but with the following nonexertional limitations: simple, repetitive tasks with no detailed work; routine and predictable work; only ordinary production requirements; reading at no greater than a 3rd grade level and no work requiring more than basic math skills; occasional contact with the general public; occasional noncollaborative interaction with coworkers and no cooperative teamwork; no jobs working with or around children. 11 12 13 14 Tr. 25. At step four, the ALJ found that Plaintiff has no past relevant work. Tr. 15 29. At step five, the ALJ found that considering Plaintiff’s age, education, work 16 experience, and RFC, there are jobs that exist in significant numbers in the national 17 economy that Plaintiff can perform. Tr. 30. On that basis, the ALJ concluded that 18 Plaintiff has not been under a disability, as defined in the Social Security Act, since 19 September 16, 2013, the date the application was filed. Tr. 30. 20 /// 21 /// ORDER ~ 7 1 2 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 her supplemental security income benefits under Title XVI of the Social Security 4 Act. ECF No. 11. Plaintiff raises the following issues for this Court’s review: 5 1. Whether the ALJ properly weighed the medical opinion evidence; 6 2. Whether the ALJ improperly discredited Plaintiff’s symptom claims; and 7 3. Whether the ALJ properly weighed the lay witness testimony. 8 9 10 DISCUSSION A. Medical Opinions There are three types of physicians: “(1) those who treat the claimant 11 (treating physicians); (2) those who examine but do not treat the claimant 12 (examining physicians); and (3) those who neither examine nor treat the claimant 13 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 14 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 15 Generally, a treating physician's opinion carries more weight than an examining 16 physician's, and an examining physician's opinion carries more weight than a 17 reviewing physician's. Id. If a treating or examining physician's opinion is 18 uncontradicted, the ALJ may reject it only by offering “clear and convincing 19 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 20 1211, 1216 (9th Cir.2005). Conversely, “[i]f a treating or examining doctor's 21 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial ORDER ~ 8 1 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). 2 “However, the ALJ need not accept the opinion of any physician, including a 3 treating physician, if that opinion is brief, conclusory and inadequately supported 4 by clinical findings.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 5 (9th Cir. 2009) (quotation and citation omitted). 6 The opinion of an acceptable medical source such as a physician or 7 psychologist is given more weight than that of an “other source.” See SSR 06-03p 8 (Aug. 9, 2006), available at 2006 WL 2329939 at *2; 20 C.F.R. § 416.927(a). 9 “Other sources” include nurse practitioners, physician assistants, therapists, 10 teachers, social workers, and other non-medical sources. 20 C.F.R. §§ 11 404.1513(d), 416.913(d).1 The ALJ need only provide “germane reasons” for 12 disregarding an “other source” opinion. Molina, 674 F.3d at 1111. However, the 13 ALJ is required to “consider observations by nonmedical sources as to how an 14 impairment affects a claimant's ability to work.” Sprague v. Bowen, 812 F.2d 15 1226, 1232 (9th Cir. 1987). 16 Plaintiff argues the ALJ erroneously considered the opinions of examining 17 psychologist Kayleen Islam-Zwart, Ph.D.; examining psychologist John Arnold, 18 19 1 20 21 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. However, the Court applies the law in effect at the time of the ALJ’s decision on May 25, 2016. ORDER ~ 9 1 Ph.D.; and a “certification of significance of disability” evaluation by the division 2 of vocational rehabilitation. ECF No. 11 at 8-11. 3 4 1. Kayleen Islam-Zwart, Ph.D. In August 2015, Dr. Islam-Zwart examined Plaintiff and completed a 5 psychological evaluation. Tr. 645-53. Dr. Islam-Zwart opined that Plaintiff had 6 moderate limitations in his ability to (1) understand, remember, and persist in tasks 7 by following detailed instructions; (2) learn new tasks; and (3) complete a normal 8 work day and work week without interruptions from psychologically based 9 symptoms. Tr. 647. Dr. Islam-Zwart rated the overall severity based on the 10 combined impact of all the diagnosed mental impairments as “mild.” Tr. 647. The 11 ALJ accorded “some weight” to Dr. Islam-Zwart’s opinions because “they are 12 supported by objective medical evidence, although the [ALJ found] the medical 13 evidence as a whole supports greater restrictions than the mild limitations opined 14 by Dr. [Islam-Zwart].” Tr. 28. 15 Plaintiff argues that the ALJ gave some weight to the opinion of Dr. Islam- 16 Zwart, but failed to include all of the moderate limitations opined by Dr. Islam- 17 Zwart in the assessed RFC and the hypothetical propounded to the vocational 18 expert (VE). ECF No. 11 at 11. A claimant's RFC is what the claimant can still do 19 despite his limitations. Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir.1996) 20 (citing 20 C.F.R. § 404.1545(a)). Dr. Islam-Zwart found moderate limitations in 21 Plaintiff's ability to: understand, remember, and persist in tasks by following detailed instructions; learn new tasks; and complete a normal workday and ORDER ~ 10 1 workweek without interruptions from psychologically based symptoms. Tr. 647. 2 As noted by Defendant, the assessed RFC limited Plaintiff to only “simple 3 repetitive tasks with no detailed work” and “routine and predictable work,” which 4 arguably accounted for Dr. Islam-Zwart’s assessed moderate limitations on 5 Plaintiff’s ability to learn new tasks and understand, remember, and persist in tasks 6 by following detailed instructions. ECF No. 13 at 7 (citing Tr. 25). However, the 7 ALJ entirely failed to consider Dr. Islam-Zwart’s opined moderate limitation on 8 Plaintiff’s ability to complete a normal workweek or workday without 9 interruptions from psychologically based symptoms. Tr. 647. Thus, the Court 10 finds the ALJ erred by failing to either provide the requisite reasons to reject this 11 moderate limitation opined by Dr. Islam-Zwart, or to incorporate the limitation into 12 Plaintiff’s RFC. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 13 2006) (“an ALJ is not free to disregard properly supported limitations”). 14 Moreover, the record, as it stands, does not permit the Court to conclude that 15 this error in considering Dr. Islam-Zwart’s opinion is inconsequential to the 16 ultimate disability determination. See Molina, 674 F.3d at 1115 (error is harmless 17 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination). 18 Upon questioning by Plaintiff’s counsel at the hearing, the VE testified that a 19 moderate limitation on a claimant’s ability to complete a normal work day or work 20 week without interruption from psychologically based symptoms, which was 21 defined by Plaintiff’s counsel at the hearing as up to one third of the day, would preclude a claimant from performing any work. Tr. 90-91. Because the ORDER ~ 11 1 hypothetical posed to the vocational expert did not reflect all of Plaintiff’s 2 limitations, the expert’s testimony has no evidentiary value to support the ALJ’s 3 step five finding that plaintiff can perform jobs in the national economy. Bray v. 4 Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (citation and 5 quotation marks omitted). 6 For all of these reasons, the ALJ did not properly consider Dr. Islam-Zwart’s 7 opinion, and it must be reconsidered on remand. 8 2. Additional Opinions 9 Plaintiff also challenges the ALJ’s consideration of two additional opinions. 10 ECF No. 11 at 9-11. First, in September 2013, John Arnold, Ph.D. examined 11 Plaintiff and opined moderate limitations in nine categories of “basic work 12 activities”; and marked limitations in Plaintiff’s ability to (1) perform activities 13 within a schedule, maintain regular attendance, and be punctual within customary 14 tolerances without special supervision; (2) maintain appropriate behavior in a work 15 setting; and (3) complete a normal work day and work week without interruptions 16 from psychologically based symptoms. Tr. 438. The ALJ found “little weight is 17 assigned [to] Dr. Arnold’s opinions based upon the lack of consistency with 18 objective medical evidence and the relatively mild symptomology consistently 19 documented by other examining and treating sources in the record.” Tr. 28-29. 20 Plaintiff “does not agree that mild symptoms were noted by other sources in the 21 record and the ALJ does not identify any such evidence in the record.” ECF No. 11 at 10. However, the ALJ may discount an opinion that is conclusory, brief, and ORDER ~ 12 1 unsupported by the record as a whole, or by objective medical findings. Batson v. 2 Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); see also Orn v. 3 Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (the consistency of a medical opinion 4 with the record as a whole is a relevant factor in evaluating that medical opinion). 5 As noted by Defendant, the ALJ’s decision does cite evidence of normal mental 6 status examinations findings and lack of significant mental health treatment across 7 the longitudinal record. ECF No. 13 at 5-6 (citing Tr. 26-28); Tr.434, 464-66, 469, 8 651-52. Thus, regardless of evidence that could be considered more favorably to 9 Plaintiff, the ALJ reasonably considered inconsistency between the severity in Dr. 10 Arnold’s assessed limitations, and the longitudinal record, including Plaintiff’s 11 performance on mental status examinations. Burch v. Barnhart, 400 F.3d 676, 679 12 (9th Cir. 2005) (“[W]here evidence is susceptible to more than one rational 13 interpretation, it is the [Commissioner’s] conclusion that must be upheld.”). 14 Second, in February 2014, the division of vocational rehabilitation 15 completed a “certification of significance of disability,” which found that Plaintiff 16 met the criteria for “most significantly disabled.” Tr. 381-89. This finding appears 17 to be based on the vocational rehabilitation counselor’s (VRC) finding that 18 Plaintiff requires “modified or flexible work schedule, extra rest periods, job 19 modifications, or other accommodations due to physical or mental health 20 conditions” and is “[u]nable to sustain attention, or concentrate for long periods of 21 time.” Tr. 383. The VRC also found Plaintiff had serious functional limitations, resulting in barriers to employment, that included: inability to recognize or respect ORDER ~ 13 1 commonly accepted social cues or personal boundaries; inability to perceive or 2 consider others’ viewpoints or to work cooperatively; persistent behavior that 3 results in exclusion, discipline, frequent conflict, or other negative consequences at 4 home, work, school or other settings; persistent behavior of social avoidance, 5 isolation, or withdrawal; extreme suspiciousness or anxiety, anger, or aggression; 6 inability to independently analyze and/or solve problems, weigh alternatives, 7 and/or make decisions; responds impulsively and is easily distracted; and inability 8 to learn or perform basic skills in reading, spelling, or math. Tr. 386-87. The VRC 9 concluded in the “case narrative” section that, based on medical documentation, 10 Plaintiff “will have difficulty with work tolerances, interacting cooperatively with 11 others, [and] difficulties with attendance and work performance due to fatigue. 12 Customer will have difficulties with work skills and will likely require specialized 13 training and accommodations to perform work functions.” Tr. 388. 14 Plaintiff argues the ALJ’s failure to consider this opinion constitutes legal 15 error. ECF No. 11 at 10-11. Defendant contends that the VRC opinion was 16 “neither significant nor probative because there is no indication about [who] filled 17 out the form or how they arrived at their conclusions. Accordingly, the ALJ was 18 not required to discuss the form.” ECF No. 13 at 6-7. Defendant is correct that the 19 ALJ “need not discuss all evidence presented,” rather, the ALJ “must explain why 20 significant and probative evidence has been rejected.” Vincent v. Heckler, 739 21 F.2d 1393, 1394-95 (9th Cir. 1984). However, the VRC evaluation includes limitations on Plaintiff’s ability to maintain a normal work schedule that could ORDER ~ 14 1 reasonably be construed as significant evidence supporting more severe functional 2 limitations on Plaintiff’s ability to complete a normal workday and workweek, as 3 opined by Dr. Islam-Zwart and Dr. Arnold. Tr. 383, 388, 438, 647. Moreover, the 4 Court notes that the ALJ specifically asked the medical expert for her opinion on 5 the VRC evaluation at the hearing, 2 which further suggests the VRC evaluation 6 was probative evidence that should not have been dismissed by the ALJ without 7 explanation. Tr. 61-63. 8 Thus, particularly in light of the need to in light of the need to reconsider Dr. 9 Islam-Zwart’s opinion, the ALJ should reexamine all of the medical evidence upon 10 remand, including the VRC evaluation, Dr. Arnold’s opinion, and all opinion 11 evidence deemed relevant. 12 B. Additional Assignments of Error 13 Plaintiff also challenges the ALJ's rejection of Plaintiff's symptom claims 14 and lay witness testimony of Plaintiff’s mother. ECF No. 11 at 11-13. Because 15 the analysis of these questions is dependent on the ALJ's evaluation of the medical 16 2 17 18 19 20 21 The ALJ asked the medical expert to look at the VRC evaluation, and specifically noted the VRC finding that Plaintiff met the criteria for an individual with significant disabilities, and denied him vocational rehabilitation services. Tr. 6162. The medical expert “guess[ed]” that Plaintiff was denied based on his medical records, but “[did not] understand” that decision “from a psychological point of view.” Tr. 62-63. ORDER ~ 15 1 evidence, which the ALJ is instructed to reconsider on remand, the Court declines 2 to address these challenges here. On remand, the ALJ is instructed to conduct a 3 new sequential analysis after reconsidering the medical opinion evidence. 4 REMEDY 5 The decision whether to remand for further proceedings or reverse and 6 award benefits is within the discretion of the district court. McAllister v. Sullivan, 7 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 8 where “no useful purpose would be served by further administrative proceedings, 9 or where the record has been thoroughly developed,” Varney v. Sec'y of Health & 10 Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by 11 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 12 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (noting that a 13 district court may abuse its discretion not to remand for benefits when all of these 14 conditions are met). This policy is based on the “need to expedite disability 15 claims.” Varney, 859 F.2d at 1401. But where there are outstanding issues that 16 must be resolved before a determination can be made, and it is not clear from the 17 record that the ALJ would be required to find a claimant disabled if all the 18 evidence were properly evaluated, remand is appropriate. See Benecke v. 19 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 20 1179-80 (9th Cir. 2000). 21 Although Plaintiff requests a remand with a direction to award benefits, ECF No. 11 at 14, the Court finds that further administrative proceedings are ORDER ~ 16 1 appropriate. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 2 (9th Cir. 2014) (remand for benefits is not appropriate when further administrative 3 proceedings would serve a useful purpose). Here, the ALJ improperly considered 4 medical opinion evidence, which calls into question whether the assessed RFC, and 5 resulting hypothetical propounded to the vocational expert, are supported by 6 substantial evidence. “Where,” as here, “there is conflicting evidence, and not all 7 essential factual issues have been resolved, a remand for an award of benefits is 8 inappropriate.” Treichler, 775 F.3d at 1101. Instead, the Court remands this case 9 for further proceedings. On remand, the ALJ must reconsider the medical opinion 10 evidence, and provide legally sufficient reasons for evaluating these opinions, 11 supported by substantial evidence. If necessary, the ALJ should order additional 12 consultative examinations and, if appropriate, take additional testimony from 13 medical experts. The ALJ should also reconsider the credibility analysis, and lay 14 witness testimony. Finally, the ALJ should reassess Plaintiff's RFC and, if 15 necessary, take additional testimony from a vocational expert which includes all of 16 the limitations credited by the ALJ. 17 ACCORDINGLY, IT IS HEREBY ORDERED: 18 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is GRANTED. 19 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is DENIED. 20 /// 21 /// ORDER ~ 17 1 The District Court Executive is hereby directed to enter this Order and provide 2 copies to counsel, enter judgment in favor of the Plaintiff, and CLOSE the file. 3 IT IS SO ORDERED. The District Court Clerk is directed to enter this 4 5 Order and provide copies to counsel. DATED March 25, 2019. 6 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER ~ 18
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