Gile v. Commissioner of Social Security, No. 2:2018cv00109 - Document 14 (E.D. Wash. 2019)

Court Description: ORDER GRANTING, IN PART, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS ECF No. 12 and denying ECF No. 13 Defendant's Motion for Summary Judgment. File closed. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

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Gile v. Commissioner of Social Security Doc. 14 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 4 Mar 22, 2019 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 DANIEL G., No. 4:18-CV-0109-JTR Plaintiff, 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 12, 13. Attorney Joseph M. Linehan represents Daniel G. (Plaintiff); Special 19 Assistant United States Attorney Franco L. Becia represents the Commissioner of 20 Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 5. After reviewing the administrative record and the 22 briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s Motion for 23 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 24 REMANDS the matter to the Commissioner for additional proceedings pursuant to 25 42 U.S.C. § 405(g). 26 JURISDICTION 27 Plaintiff filed an application for Disability Insurance Benefits alleging 28 disability since January 17, 2014, due to toxic mold syndrome, allergic rhinitis, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 allergic conjunctivitis, migraine headaches, brain fog, light sensitivity, eyes rolling 2 into head, joint pain and muscle pain. Tr. 175, 185. The application was denied 3 initially and upon reconsideration. Administrative Law Judge (ALJ) Linda J. Helm 4 held a hearing in Portland, Maine, on April 14, 2016, Tr. 35-84, and issued an 5 unfavorable decision on January 25, 2017, Tr. 12-21. The Appeals Council denied 6 Plaintiff’s request for review on February 6, 2018. Tr. 1-5. The ALJ’s January 7 2017 decision thus became the final decision of the Commissioner, which is 8 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 9 action for judicial review on March 28, 2018. ECF No. 1. STATEMENT OF FACTS 10 11 Plaintiff was born on August 29, 1958, and was 55 years old on the alleged 12 onset date, January 17, 2014. Tr. 58, 175. He completed high school and two 13 years of college. Tr. 62, 186. He spent six years in the Navy and had worked 14 more than 20 years in a naval shipyard as a health physicist instructor. Tr. 62-63, 15 186. Plaintiff’s disability report indicates he stopped working on January 17, 2014, 16 because of his conditions. Tr. 185. He testified at the administrative hearing he 17 was unable to work due to symptoms caused by his toxic mold syndrome. Tr. 64. 18 Plaintiff described the symptoms as his eyes rolling into his head and migraine 19 headaches triggered by attempting to recall a long-term memory, physical activity, 20 viewing flashing lights, and exposure to mold. Tr. 64-65. He has treated the 21 condition with icepacks for his head, aspirin, saunas to release toxins, and 22 avoidance of mold. Tr. 65-68. 23 Plaintiff testified that a typical day consisted of working on his house to get 24 it ready to sell (he was planning a move to Washington State to live in a drier 25 climate, Tr. 59), some reading, watching television, and playing a computer game. 26 Tr. 68-69. He also indicated he was able to help with household chores by doing 27 some cooking. Tr. 69. Plaintiff stated he was no longer able to drive due to his 28 condition. Tr. 69. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2 1 2 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion. Richardson v. 12 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 13 rational interpretation, the Court may not substitute its judgment for that of the 14 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 15 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 16 administrative findings, or if conflicting evidence supports a finding of either 17 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 18 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 19 supported by substantial evidence will be set aside if the proper legal standards 20 were not applied in weighing the evidence and making the decision. Brawner v. 21 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 22 23 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 25 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 26 four, the burden of proof rests upon the claimant to establish a prima facie case of 27 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 28 met once a claimant establishes that a physical or mental impairment prevents the ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 1 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 2 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 3 to step five, and the burden shifts to the Commissioner to show that (1) the 4 claimant can make an adjustment to other work; and (2) the claimant can perform 5 specific jobs which exist in significant numbers in the national economy. Batson v. 6 Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a 7 claimant cannot make an adjustment to other work in the national economy, a 8 finding of “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). ADMINISTRATIVE DECISION 9 10 11 12 13 14 On January 25, 2017, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since January 17, 2014, the alleged onset date. Tr. 14. At step two, the ALJ determined Plaintiff had the following medically 15 determinable impairments: toxic mold allergy, headaches, vision issues, obesity 16 and hypertension. Tr. 14. However, the ALJ found Plaintiff did not have a severe 17 impairment or combination of impairments. Tr. 15-18. 18 The ALJ thus concluded at step two of the sequential evaluation process that 19 Plaintiff was not under a disability within the meaning of the Social Security Act at 20 any time from January 17, 2014, the alleged onset date, through January 25, 2017, 21 the date of the ALJ’s decision. Tr. 21. ISSUES 22 23 The question presented is whether substantial evidence supports the ALJ’s 24 decision denying benefits and, if so, whether that decision is based on proper legal 25 standards. 26 Plaintiff alleges the following assignments of error: (1) the ALJ’s decision 27 is not supported by substantial evidence; (2) the ALJ committed legal error when 28 she determined Plaintiff did not have a severe impairment at step two of the ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 1 sequential evaluation; and (3) the ALJ failed to give the appropriate consideration 2 to the symptom testimony of Plaintiff and the opinion of Plaintiff’s treating and 3 examining doctors. ECF No. 12 at 1. DISCUSSION1 4 5 6 7 A. Step Two Plaintiff argues the ALJ erred by determining Plaintiff did not have a severe medically determinable impairment. ECF No. 12 at 8-9. The Court agrees. 8 Plaintiff has the burden of proving he has a severe impairment at step two of 9 the sequential evaluation process. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 416.912. 10 To meet this burden, Plaintiff must furnish medical and other evidence showing he 11 has a severe impairment. 20 C.F.R. § 416.912(a). The regulations, 20 C.F.R. §§ 12 404.1520(c), 416.920(c), provide that an impairment is severe if it significantly 13 limits one’s ability to perform basic work activities. An impairment is considered 14 non-severe if it “does not significantly limit your physical or mental ability to do 15 basic work activities.” 20 C.F.R. §§ 404.1521, 416.921. “Basic work activities” 16 are defined as the abilities and aptitudes necessary to do most jobs. See 20 C.F.R. 17 §§ 404.1521(b), 416.921(b). 18 Step two is “a de minimis screening device [applied] to dispose of 19 groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An 20 ALJ may find a claimant lacks a medically severe impairment or combination of 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5 1 impairments only when this conclusion is “clearly established by medical 2 evidence.” S.S.R. 85-28 (1985); Webb v. Barnhart, 433 F.3d 683, 686-687 (9th 3 Cir. 2005). In reviewing the claimed error, the Court must consider whether the 4 record includes evidence of a severe impairment and, if so, whether the ALJ’s 5 response to that evidence was legally correct. 6 In this case, the ALJ evaluated the evidence of record, considered the 7 hearing testimony, and concluded Plaintiff did not have a severe impairment 8 related to his allegations of toxic mold syndrome, allergic rhinitis, allergic 9 conjunctivitis, migraine headaches, brain fog, light sensitivity, eyes rolling into 10 head, joint pain and muscle pain. Tr. 15-18. The ALJ indicated Plaintiff’s 11 hypertension appeared to be fairly well controlled with medication, Tr. 16; there 12 was no evidence Plaintiff’s obesity resulted in an exacerbation of his co-existing 13 medical problems, Tr. 16; the evidence of record failed to show Plaintiff sought 14 aggressive treatment or other solutions for his alleged significant symptoms from 15 his toxic mold and other allergies, Tr. 16; the record failed to demonstrate 16 Plaintiff’s headaches were of such severity to cause him to seek frequent medical 17 or emergency room treatment or to have been prescribed headache medications, Tr. 18 16-17; Plaintiff’s vision complaints were unsubstantiated by objective evidence, 19 Tr. 17; and Plaintiff’s mental health allegations were inconsistent with his 20 essentially normal mental examinations, prior denials of experiencing depression 21 and anxiety, and lack of psychiatric hospitalizations, psychotherapy or being 22 prescribed psychotropic medications, Tr. 17-18. 23 The Court agrees, and Plaintiff did not specifically contest in his briefing, 24 see Carmickle, 533 F.3d at 1161 n.2, that the medical evidence of record fails to 25 document Plaintiff’s mental health concerns, hypertension and obesity have 26 resulted in significant limitations. Accordingly, the Court will not disturb the 27 ALJ’s determination that these medially determinable impairments are not severe. 28 However, with respect to Plaintiff’s toxic mold syndrome, and resultant headaches ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 1 and vision issues, the Court finds the record is replete with evidence sufficient to 2 pass the de minimis threshold of step two of the sequential evaluation process. See 3 Smolen, 80 F.3d at 1290. As argued by Plaintiff, and discussed below, every 4 treating and examining medical source in the record notes Plaintiff’s toxic mold 5 syndrome has had more than a minimal effect on his ability to work. See infra. 6 In a disability proceeding, the courts distinguish among the opinions of three 7 types of acceptable medical sources: physicians who treat, physicians who 8 examine but do not treat the claimant and those who neither examine nor treat the 9 claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). A treating 10 physician’s opinion carries more weight than an examining physician’s opinion, 11 and an examining physician’s opinion is given more weight than that of a 12 nonexamining physician. Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004); 13 Lester, 81 F.3d at 830. The Ninth Circuit has held that “[t]he opinion of a 14 nonexamining physician cannot by itself constitute substantial evidence that 15 justifies the rejection of the opinion of either an examining physician or a treating 16 physician.” Lester, 81 F.3d at 830; Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th 17 Cir. 1990) (finding a nonexamining doctor’s opinion “with nothing more” does not 18 constitute substantial evidence). 19 Plaintiff’s primary treating source, David S. Hurst, M.D., Ph.D., wrote a 20 letter on December 27, 2013, which summarized earlier neurologist and 21 psychological evaluations. Tr. 336-337. Dr. Hurst stated his opinion that there 22 was no pathologic or psychiatric diagnosis to explain Plaintiff’s symptoms other 23 than a toxic reaction to mold exposure. Tr. 336. On February 19, 2014, Dr. Hurst 24 wrote that continual exposure to molds had worsened Plaintiff’s symptoms. Tr. 25 333. He opined that Plaintiff was severely allergic to mold and should not 26 continue to work unless he could be assured of a totally mold-free work 27 environment. Tr. 333. Dr. Hurst wrote a letter on April 25, 2014, and indicated 28 Plaintiff would be medically disabled as long as he was exposed to the damp wet ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 1 mold environment of Maine. Tr. 330. On May 20, 2014, Dr. Hurst detailed 2 Plaintiff’s struggles with toxic mold syndrome. Tr. 327-328. He noted they had 3 documented Plaintiff’s mold sensitivity by intradermal testing and determined 4 Plaintiff was “unequivocally sensitive to a multitude of various molds that are 5 found throughout the environment.” Tr. 327. Dr. Hurst opined that Plaintiff’s 6 continued work exposure to mold “precipitated his symptoms to the point that he 7 became . . . totally disabled.” Tr. 327. 8 On March 24, 2014, Colin R. Robinson, O.D., F.A.A.O, completed a neuro- 9 optometric examination and assessed “extreme photophobia.” Tr. 291-292. Dr. 10 Robinson noted Plaintiff had a history of daily migraine-type headaches, frequent 11 symptoms of both eyes rolling up, and extreme light sensitivity. Tr. 291. 12 Examining physician Thomas F. Johnson, M.D., evaluated Plaintiff on May 13 11, 2016. Tr. 369-374. Dr. Johnson noted Plaintiff was evaluated by an ear, nose 14 and throat specialist in 2012 using the Rinkler intradermal dilutional technique and 15 was found to have evidence of sensitivity to molds. Tr. 370. Plaintiff’s symptoms 16 worsened with continual exposure to molds. Tr. 370. Dr. Johnson opined Plaintiff 17 had a very complex neurologic abnormality and the neurologic abnormality was 18 due to his toxic mold exposure and continued exposure to molds to which he was 19 sensitive. Tr. 372. He further opined that Plaintiff was in an almost continuous 20 state of repetitive migraine headaches. Tr. 372. Dr. Johnson concluded Plaintiff 21 was unable to work any job because his sensitivity to mold induced photophobia, 22 blepharospasm, migraine and oculogyric crises (described as forced closure of his 23 eyes with his eyeballs rolling upward). Tr. 372, 374. 24 A consultative physical examination was completed by Richard Stockwell, 25 D.O., on June 27, 2016. Tr. 376-385. Dr. Stockwell was unable to evaluate 26 Plaintiff’s eyes because Plaintiff was not able to open his eyes during the exam. 27 Tr. 377. Dr. Stockwell specifically indicated he was “not familiar with mold 28 toxicity” and would defer to “a specialist who is well versed in this kind of ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 1 problem, either neurology or allergy/immunology.” Tr. 377. Nevertheless, Dr. 2 Stockwell stated he was unable to see any deficits that would preclude Plaintiff 3 from performing basic activities. Tr. 377. 4 While the ALJ provided various reasons for according little or no weight to 5 the treating and examining medical professionals noted above, including finding 6 their opinions were unsupported, based primarily on Plaintiff’s subjective 7 complaints, and inconsistent with Plaintiff’s demonstrated activities of daily living, 8 Tr. 19-21, the Court finds the ALJ’s rationale lacked specificity. See Brown- 9 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (finding a clear statement of 10 the agency’s reasoning is necessary because the Court can affirm the ALJ’s 11 decision to deny benefits only on the grounds invoked by the ALJ). “Although the 12 ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in 13 order for us to meaningfully determine whether the ALJ’s conclusions were 14 supported by substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 15 F.3d 1090, 1103 (9th Cir. 2014). The Court finds the ALJ’s analysis with respect 16 to Plaintiff’s treating and examining medical sources failed to specifically identify 17 and explain legitimate bases for rejecting or discounting their opinions. See 18 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 19 20 The ALJ relied exclusively on nonexamining medical opinions2 to find Plaintiff’s complaints of toxic mold allergy, with symptoms including headaches, 21 22 2 Margaret Pollock, M.D., testified at the April 14, 2016, administrative 23 hearing. Tr. 40-57. Dr. Pollock specifically indicated toxic mold allergy was not 24 her area of expertise (she is a neurologist), Tr. 42, and the underlying issue in this 25 case is usually treated by someone like an immunologist, Tr. 49. Dr. Pollack also 26 stated Plaintiff “should have had a more extensive evaluation and treatment for 27 these various symptoms that he’s describing.” Tr. 46, 55-56. Nevertheless, Dr. 28 Pollack opined the record reflected Plaintiff had no medically determinable ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 1 memory loss, pain and light sensitivity, was not a severe impairment. Tr. 18. As 2 indicated above, the opinion of a nonexamining physician cannot alone constitute 3 substantial evidence that justifies the rejection of the opinion of a treating 4 physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Moreover, both examiner Stockwell, Tr. 377, and medical expert Pollack, 5 6 Tr. 49, expressed unfamiliarity with mold toxicity and suggested the medical issue 7 would be better addressed by an immunologist. Therefore, at a minimum, the 8 medical evidence was sufficiently ambiguous with regard to Plaintiff’s toxic mold 9 syndrome to trigger the ALJ’s duty to fully and fairly develop the record. See 10 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (“In Social Security cases the 11 ALJ has a special duty to fully and fairly develop the record and to assure that the 12 claimant’s interests are considered.”). In any event, the Court finds the medical 13 records outlined above demonstrate problems with Plaintiff’s sensitivity to mold to 14 pass the de minimis threshold of step two of the sequential evaluation process. See 15 Smolen, 80 F.3d at 1290. 16 Based on the foregoing, the Court finds the ALJ erred at step two of the 17 sequential evaluation process. Accordingly, this matter must be remanded for 18 additional proceedings in order for the ALJ to take into consideration Plaintiff’s 19 toxic mold syndrome, with symptoms including headaches, memory loss, pain and 20 light sensitivity, and the limitations those symptoms have on Plaintiff’s 21 functionality. Although the Court finds that the ALJ erred at step two, it is not 22 /// 23 /// 24 25 impairments. Tr. 42, 43. The ALJ accorded Dr. Pollack’s opinion “great weight.” 26 Tr. 18. The ALJ also gave “great weight” to state agency reviewing physicians 27 Donald Trumbull, M.D., Tr. 92, and Benjamin Weinberg, M.D., Tr. 103, who each 28 concluded Plaintiff had no severe physical impairments. Tr. 21. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10 1 clear from the record, as it currently stands, whether Plaintiff’s severe 2 impairments, either singly or in combination, would prevent him from performing 3 substantial gainful employment. Further development is necessary for a proper 4 determination. 5 B. Plaintiff also contends the ALJ erred by improperly rejecting his subjective 6 7 complaints. ECF No. 12 at 14-17. It is the province of the ALJ to make credibility determinations. Andrews, 8 9 Plaintiff’s Subjective Complaints 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 10 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once 11 the claimant produces medical evidence of an underlying medical impairment, the 12 ALJ may not discredit testimony as to the severity of an impairment because it is 13 unsupported by medical evidence. Reddick, 157 F.3d 715, 722 (9th Cir. 1998). 14 Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting the 15 claimant’s testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 16 1281; Lester, 81 F.3d at 834. “General findings are insufficient: rather the ALJ 17 must identify what testimony is not credible and what evidence undermines the 18 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 19 918 (9th Cir. 1993). Contrary to Defendant’s contentions, ECF No. 13 at 18, the ALJ did not 20 21 make a specific finding of malingering in this case. Instead, the ALJ advanced the 22 following reasons for finding Plaintiff’s subjective complaints not persuasive: (1) 23 the objective medical evidence did not support the level of impairment claimed; (2) 24 Plaintiff did not seek more aggressive treatment for his alleged disabling 25 impairments; (3) Plaintiff failed to cooperate during the consultative examination 26 with Dr. Stockwell; (4) Plaintiff’s activities of daily living were inconsistent with 27 his allegations of disabling functional limitations; and (5) Plaintiff made a 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11 1 statement in 2013 (prior to the alleged onset date) which raised concerns about 2 possible secondary gain motivation by Plaintiff. Tr. 16-19. While some of the reasons provided by the ALJ for discounting Plaintiff’s 3 4 testimony may be supported by the evidence of record, this matter must be 5 remanded for additional proceedings in light of the ALJ’s erroneous determination 6 at step two of the sequential evaluation process. See supra. Accordingly, on 7 remand, the ALJ shall also reconsider Plaintiff’s statements and testimony and 8 reassess what statements, if any, are not credible and, if deemed not credible, what 9 specific evidence undermines those statements. 10 C. Plaintiff additionally contends the ALJ erred by rejecting various medical 11 12 Medical Opinion Evidence sources in this case. ECF No. 12 at 9-14. As determined above, the ALJ erred at step two; therefore, this matter must 13 14 be remanded for additional proceedings. As discussed, the ALJ erred by providing 15 inadequate rationale for rejecting or discounting the opinions of Plaintiff’s treating 16 and examining medical professionals. See supra. Consequently, the ALJ’s RFC 17 determination is not supported and must be reevaluated. 18 On remand, the ALJ shall reassess the medical opinions of Drs. Hurst, 19 Robinson, Johnson, and Stockwell, as well as all other medical evidence of record 20 relevant to Plaintiff’s claim for disability benefits. Furthermore, the ALJ shall 21 direct Plaintiff to undergo a new consultative physical examination with particular 22 emphasis on Plaintiff’s toxic mold syndrome. If warranted, the ALJ shall 23 additionally elicit the testimony of a medical expert at a new administrative 24 hearing to further assist the ALJ in formulating a RFC determination. The ALJ 25 shall then make determinations at the remaining steps of the sequential evaluation 26 process. 27 /// 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12 1 CONCLUSION Plaintiff argues the ALJ’s decision should be reversed and remanded for the 2 3 payment of benefits. The Court has the discretion to remand the case for additional 4 evidence and findings or to award benefits. Smolen, 80 F.3d at 1292. The Court 5 may award benefits if the record is fully developed and further administrative 6 proceedings would serve no useful purpose. Id. Remand is appropriate when 7 additional administrative proceedings could remedy defects. Rodriguez v. Bowen, 8 876 F.2d 759, 763 (9th Cir. 1989). It is clear further development is necessary. On remand, the ALJ shall reexamine the severity of Plaintiff’s physical 9 10 condition at step two of the sequential evaluation process. The ALJ shall 11 reconsider the opinions of Drs. Hurst, Robinson, Johnson, and Stockwell, and all 12 other medical evidence of record. The ALJ shall further develop the record by 13 directing Plaintiff to undergo a consultative examination, preferably with an 14 individual who specializes in treating or examining people with allergies; i.e, an 15 immunologist, with particular emphasis on Plaintiff’s toxic mold syndrome. If 16 warranted, the ALJ shall also elicit the testimony of a medical expert at a new 17 administrative hearing to further assist the ALJ in formulating a RFC 18 determination. The ALJ shall also reevaluate Plaintiff’s statements and testimony, 19 obtain supplemental testimony from a vocational expert, if necessary, and take into 20 consideration any other evidence or testimony relevant to Plaintiff’s disability 21 claim. 22 IT IS ORDERED: 23 1. 24 Plaintiff’s Motion for Summary Judgment, ECF No. 12, is GRANTED IN PART. 2. 25 26 DENIED. 27 /// 28 /// Defendant’s Motion for Summary Judgment, ECF No. 13, is ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 13 1 2 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 3 4. An application for attorney fees may be filed by separate motion. 4 The District Court Executive is directed to file this Order and provide a copy 5 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 6 the file shall be CLOSED. 7 DATED March 22, 2019. 8 9 10 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 14

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