Marker v. Saul, No. 2:2018cv00282 - Document 14 (E.D. Wash. 2019)
Court Description: ORDER GRANTING 10 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 11 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Matter is REMANDED to the Commissioner for additional proceedings. Case is closed. Signed by Judge Rosanna Malouf Peterson. (AY, Case Administrator)
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Marker v. Saul Doc. 14 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Dec 03, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 ERIC DANIEL M., NO: 2:18-CV-282-FVS 8 Plaintiff, v. 9 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, 1 10 11 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 12 13 14 15 BEFORE THE COURT are the parties’ cross motions for summary judgment. ECF Nos. 10 and 11. This matter was submitted for consideration 16 17 18 19 20 1 Andrew M. Saul is now the Commissioner of the Social Security Administration. Accordingly, the Court substitutes Andrew M. Saul as the Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 25(d). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 without oral argument. The Plaintiff is represented by Attorney Dana C. Madsen. 2 The Defendant is represented by Special Assistant United States Attorney Lars J. 3 Nelson. The Court has reviewed the administrative record, the parties’ completed 4 briefing, and is fully informed. For the reasons discussed below, the Court 5 GRANTS Plaintiff’s Motion for Summary Judgment, ECF No. 10, and DENIES 6 Defendant’s Motion for Summary Judgment, ECF No. 11. 7 JURISDICTION Plaintiff Eric Daniel M. 2 filed for supplemental security income and 8 9 disability insurance benefits on August 25, 2014, alleging an onset date of January 10 1, 2013. Tr. 242-48, 251-57. Benefits were denied initially, Tr. 145-51, and upon 11 reconsideration, Tr. 154-59. A hearing before an administrative law judge (“ALJ”) 12 was conducted on November 17, 2016, and a supplemental hearing was conducted 13 on July 12, 2017. Tr. 31-95. Plaintiff was represented by counsel and testified at 14 both hearings. Id. The ALJ denied benefits, Tr. 7-30, and the Appeals Council 15 denied review. Tr. 1. The matter is now before this court pursuant to 42 U.S.C. §§ 16 405(g); 1383(c)(3). 17 / / / 18 19 20 21 2 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 GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 BACKGROUND 2 The facts of the case are set forth in the administrative hearing and 3 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 4 Only the most pertinent facts are summarized here. 5 Plaintiff was 45 years old at the time of the first hearing. See Tr. 244. He 6 graduated from high school and attended some college. Tr. 46. He has a 7 caregiver, paid for by DSHS, that comes four days a week for five to six hours per 8 day. Tr. 80. Plaintiff has work history as a cook, kitchen helper, concession 9 manager, and caregiver. Tr. 46, 87-88. Plaintiff testified that he stopped working 10 because he wasn’t able to stand; but the record also indicated that he stopped 11 working after he was put on administrative leave for three years after being 12 charged with a DUI. Tr. 44. 13 Plaintiff reported that he could not work because of pain and swelling in his 14 feet due to “chronic non-healing fractures,” pain in his hands, shoulder pain, 15 anxiety, and depression. Tr. 52-55, 78-81, 84-85. He testified he can stand for 16 three or four minutes, lift ten pounds, and walk “maybe” 50 feet before his feet 17 start swelling and he needs to sit down. Tr. 55, 59-61. He testified that he went to 18 physical therapy but could not continue because of swelling in his feet. Tr. 50. 19 Plaintiff reported that he elevates his feet to relieve the swelling a couple of times a 20 day, for between a half an hour to a couple of hours. Tr. 60. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited; the Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 7 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 8 (quotation and citation omitted). Stated differently, substantial evidence equates to 9 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 10 citation omitted). In determining whether the standard has been satisfied, a 11 reviewing court must consider the entire record as a whole rather than searching 12 for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. If the evidence in the record “is 15 susceptible to more than one rational interpretation, [the court] must uphold the 16 ALJ’s findings if they are supported by inferences reasonably drawn from the 17 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 18 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 19 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 20 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 party appealing the ALJ’s decision generally bears the burden of establishing that 2 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 3 4 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 5 the meaning of the Social Security Act. First, the claimant must be “unable to 6 engage in any substantial gainful activity by reason of any medically determinable 7 physical or mental impairment which can be expected to result in death or which 8 has lasted or can be expected to last for a continuous period of not less than twelve 9 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 10 impairment must be “of such severity that he is not only unable to do his previous 11 work[,] but cannot, considering his age, education, and work experience, engage in 12 any other kind of substantial gainful work which exists in the national economy.” 13 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 14 The Commissioner has established a five-step sequential analysis to 15 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 16 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 17 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 18 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 19 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 20 404.1520(b), 416.920(b). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 If the claimant is not engaged in substantial gainful activity, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 4 claimant suffers from “any impairment or combination of impairments which 5 significantly limits [his or her] physical or mental ability to do basic work 6 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 7 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 8 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 9 §§ 404.1520(c), 416.920(c). 10 At step three, the Commissioner compares the claimant’s impairment to 11 severe impairments recognized by the Commissioner to be so severe as to preclude 12 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 13 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 14 severe than one of the enumerated impairments, the Commissioner must find the 15 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 16 If the severity of the claimant’s impairment does not meet or exceed the 17 severity of the enumerated impairments, the Commissioner must pause to assess 18 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 19 defined generally as the claimant’s ability to perform physical and mental work 20 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 2 analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 6 If the claimant is capable of performing past relevant work, the Commissioner 7 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 8 If the claimant is incapable of performing such work, the analysis proceeds to step 9 five. 10 At step five, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing other work in the national economy. 12 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 13 the Commissioner also must consider vocational factors such as the claimant’s age, 14 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 15 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 16 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 17 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 18 work, analysis concludes with a finding that the claimant is disabled and is 19 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 20 21 The claimant bears the burden of proof at steps one through four. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 the burden shifts to the Commissioner to establish that (1) the claimant is capable 2 of performing other work; and (2) such work “exists in significant numbers in the 3 national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. Astrue, 4 700 F.3d 386, 389 (9th Cir. 2012). 5 ALJ’S FINDINGS 6 At step one, the ALJ found that Plaintiff has not engaged in substantial 7 gainful activity since January 1, 2013, the alleged onset date. Tr. 12. At step two, 8 the ALJ found that Plaintiff has the following severe impairments: brachydactyly, 9 Type C; bipolar disorder; depressive disorder, NOS; generalized anxiety disorder; 10 compulsive personality disorder; and cannabis use disorder. Tr. 13. At step three, 11 the ALJ found that Plaintiff does not have an impairment or combination of 12 impairments that meets or medically equals the severity of a listed impairment. Tr. 13 15. The ALJ then found that Plaintiff has the RFC 14 15 16 17 18 19 20 21 to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with an ability to lift and carry 20 pounds occasionally and 10 pounds frequently. However, the claimant is limited to sit for at least 6 hours in an 8-hour workday and stand/walk for a total of 4 hours in an 8-hour workday, with regular breaks. The claimant is limited to using foot controls bilaterally on a frequent basis and he must avoid climbing ladders, ropes, and scaffolds. Although able to frequently stoop and kneel, the claimant can only occasionally climb ramps or stairs, balance, crouch, and crawl. In addition, the claimant needs to avoid concentrated exposure to extreme cold, to excessive vibration and to hazardous machinery. The claimant also needs to avoid all exposure to unprotected heights. The claimant is limited to simple and repetitive tasks, but he cannot perform fast-paced production type work or the timed/paced quota work. The claimant could have occasional superficial interaction with the public, coworkers and supervisors. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 Tr. 16. At step four, the ALJ found that Plaintiff is unable to perform any past 2 relevant work. Tr. 22. At step five, the ALJ found that considering Plaintiff’s age, 3 education, work experience, and RFC, there are jobs that exist in significant 4 numbers in the national economy that Plaintiff can perform, including: mail clerk, 5 parking lot attendant, and deliverer. Tr. 23. On that basis, the ALJ concluded that 6 Plaintiff has not been under a disability, as defined in the Social Security Act, from 7 January 1, 2013, through the date of the decision. Tr. 24. 8 9 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 10 him disability insurance benefits under Title II of the Social Security Act and 11 supplemental security income benefits under Title XVI of the Social Security Act. 12 ECF No. 10. Plaintiff raises the following issues for this Court’s review: 13 1. Whether the ALJ properly considered the medical opinion evidence; and 14 2. Whether the ALJ properly considered Plaintiff’s symptom claims. 15 16 17 DISCUSSION A. Medical Opinions There are three types of physicians: “(1) those who treat the claimant 18 (treating physicians); (2) those who examine but do not treat the claimant 19 (examining physicians); and (3) those who neither examine nor treat the claimant 20 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 21 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 Generally, a treating physician's opinion carries more weight than an examining 2 physician's, and an examining physician's opinion carries more weight than a 3 reviewing physician's. Id. If a treating or examining physician's opinion is 4 uncontradicted, the ALJ may reject it only by offering “clear and convincing 5 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 6 1211, 1216 (9th Cir. 2005). Conversely, “[i]f a treating or examining doctor's 7 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 8 providing specific and legitimate reasons that are supported by substantial 9 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). 10 “However, the ALJ need not accept the opinion of any physician, including a 11 treating physician, if that opinion is brief, conclusory and inadequately supported 12 by clinical findings.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 13 (9th Cir. 2009) (quotation and citation omitted). 14 Plaintiff argues the ALJ erroneously considered the opinion of examining 15 psychologist John Arnold, Ph.D., and medical expert Michael A. Lace, Psy.D. 16 ECF No. 10 at 19-20. 17 1. Dr. John Arnold 18 In November 2016, Dr. Arnold opined that Plaintiff had marked limitations 19 in his ability to understand and remember detailed instructions; carry out detailed 20 instructions; maintain attention and concentration for extended periods; work in 21 coordination with or proximity to others without being distracted by them; ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 complete a normal workday and workweek without interruptions from 2 psychologically based symptoms and perform at a consistent pace without an 3 unreasonable number and length of rest periods; accept instructions and respond 4 appropriately to criticism from supervisors; and get along with co-workers or peers 5 without distracting them or exhibiting behavioral extremes. Tr. 547-56. 6 7 8 The ALJ gave Dr. Arnold’s examining opinion “[o]nly some weight.” Tr. 21. Specifically, the ALJ found Dr. Arnold’s 11 narrative as to [Plaintiff’s] abilities and limitations are consistent with the overall record. However, Dr. Lace did not give much weight to Dr. Arnold’s findings. He specifically made the following appraisal of the opinion: “Level of limitations suggested in [Dr. Arnold’s] evaluation and medical source statement cannot be taken in isolation and are not supported by the balance of the record. No evidence of ongoing marked limitations and no listing met or equals, based on the record.” 12 Tr. 21 (internal citations omitted). Plaintiff argues the opinion of a non-examining 13 physician, such as medical expert Dr. Lace, “cannot by itself constitute substantial 14 evidence that justifies the rejection of the opinion of either an examining or a 15 treatment physician. Therefore, the reports of non-examining doctors would not 16 justify the rejection of the finding of the examining psychologist, John Arnold, 17 Ph.D.” ECF No. 10 at 20 (citing Lester v. Chater, 81 F.3d 821 (9th Cir. 1995). 18 The Court agrees. The ALJ relied entirely on the assessment of a nonexamining 19 medical expert, Dr. Lace, as support for granting “only some weight” to Dr. 20 Arnold’s examining opinion; thus, the ALJ’s rejection of Dr. Arnold’s opinion was 21 not supported by substantial evidence. Tr. 21. 9 10 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 Moreover, when explaining his reasons for rejecting medical opinion 2 evidence, the ALJ must do more than state a conclusion; rather, the ALJ must “set 3 forth his own interpretations and explain why they, rather than the doctors’, are 4 correct.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). “This can be done 5 by setting out a detailed and thorough summary of the facts and conflicting clinical 6 evidence, stating his interpretation thereof, and making findings.” Id. Here, the 7 ALJ fails to summarize and interpret the entirety of Dr. Arnold’s narrative 8 examination findings and assessed limitations; nor does the ALJ explain why his 9 interpretation, as opposed to the interpretation of Dr. Arnold or Dr. Lace, is 10 correct. In particular, the ALJ fails to reconcile the apparent contradiction between 11 his own finding that Dr. Arnold’s “narrative as to [Plaintiff’s] abilities and 12 limitations are consistent with the overall evidentiary record,” and his complete 13 reliance on Dr. Lace’s opinion that the marked limitations assessed by Dr. Arnold 14 were not supported by the record. For all of these reasons, the ALJ’s rejection of 15 Dr. Arnold’s opinion was not supported by substantial evidence, and Dr. Arnold’s 16 opinion must be reconsidered on remand. 17 18 2. Dr. Michael A. Lace In February 2017, in response to a medical interrogatory, medical expert Dr. 19 Lace opined that Plaintiff had marked limitation in his ability to understand and 20 remember complex instructions, carry out complex instructions, and make 21 judgments on complex work-related decisions. Tr. 654. Dr. Lace assessed only ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 moderate limitations in Plaintiff’s ability to remember simple instructions, carry 2 out simple instructions, and make judgments on simple work-related decisions. Tr. 3 654. The ALJ gave substantial weight to Dr. Lace’s opinion because he is “a 4 clinical psychologist familiar with the Social Security Act and Listings” and “he 5 reviewed the entire record in forming his opinion.” Tr. 21. 6 Plaintiff appears to argue that the ALJ erred by failing to incorporate the 7 moderate and marked limitations assessed by Dr. Lace into the RFC, and “[w]hen 8 these moderate and marked limitations were posed to the VE, the VE testified that 9 such an individual would not be capable of gainful employment.” ECF No. 10 at 10 20. However, as noted by Defendant, at the hearing the VE “was posed a question 11 that defined ‘moderate’ as being unable to sustain work for ‘a third of the day.’ 12 This definition is nowhere in Dr. Lace’s reports.” ECF No. 11 at 14. Indeed, 13 Plaintiff’s counsel acknowledged at the hearing that the proposed definition of 14 “moderate” as being unable to do their job “for a third of the day” was not drawn 15 from Dr. Lace’s opinion. Tr. 93. In addition, Dr. Lace opined that Plaintiff had 16 marked limitation in his ability to understand and remember complex instructions, 17 carry out complex instructions, and make judgments on complex work-related 18 decisions. Tr. 654. However, in accordance with the substantial weight given to 19 Dr. Lace’s opinion, the ALJ’s assessed RFC limits Plaintiff to simple and 20 repetitive tasks. Tr. 16. Thus, Plaintiff fails to identify specific marked limitations 21 that were not properly accounted for in the assessed RFC. The Court finds no error ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 in the ALJ’s consideration of Dr. Lace’s opinion. Regardless, in light of Dr. 2 Lace’s assessment of Dr. Arnold’s opinion, as discussed in detail above, and the 3 need to reconsider Dr. Arnold’s opinion, the ALJ also should reconsider Dr. Lace’s 4 opinion, and all relevant medical opinion evidence, on remand. 5 B. Plaintiff’s Symptom Claims 6 An ALJ engages in a two-step analysis when evaluating a claimant’s 7 testimony regarding subjective pain or symptoms. “First, the ALJ must determine 8 whether there is objective medical evidence of an underlying impairment which 9 could reasonably be expected to produce the pain or other symptoms alleged.” 10 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 11 required to show that his impairment could reasonably be expected to cause the 12 severity of the symptom he has alleged; he need only show that it could reasonably 13 have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 14 (9th Cir. 2009) (internal quotation marks omitted). 15 Second, “[i]f the claimant meets the first test and there is no evidence of 16 malingering, the ALJ can only reject the claimant’s testimony about the severity of 17 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 18 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 19 citations and quotations omitted). “General findings are insufficient; rather, the 20 ALJ must identify what testimony is not credible and what evidence undermines 21 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ 2 must make a credibility determination with findings sufficiently specific to permit 3 the court to conclude that the ALJ did not arbitrarily discredit claimant’s 4 testimony.”). “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 9 Here, the ALJ found Plaintiff’s medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, 10 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of 11 these symptoms are not entirely consistent with the medical evidence and other 12 evidence in the record” for several reasons. Tr. 22. In his opening brief, Plaintiff 13 generally argued, without citation to the record or legal authority, that the “ALJ 14 failed to provide specific findings with clear and convincing reasons for 15 discrediting [Plaintiff’s] symptom claims.” ECF No. 10 at 17. However, the Court 16 may decline to consider issues not raised with specificity in the opening brief. 17 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 18 2008); see also Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (court may not 19 consider on appeal issues not “specifically and distinctly argued” in the party’s 20 opening brief). Accordingly, Plaintiff waived challenge to this issue. Regardless, 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 in light of the need to consider the medical opinion evidence, as discussed in detail 2 above, the ALJ should reconsider Plaintiff’s symptom claims on remand. 3 REMEDY 4 The decision whether to remand for further proceedings or reverse and 5 award benefits is within the discretion of the district court. McAllister v. Sullivan, 6 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 7 where “no useful purpose would be served by further administrative proceedings, 8 or where the record has been thoroughly developed,” Varney v. Sec'y of Health & 9 Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by 10 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 11 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (noting that a 12 district court may abuse its discretion not to remand for benefits when all of these 13 conditions are met). This policy is based on the “need to expedite disability 14 claims.” Varney, 859 F.2d at 1401. But where there are outstanding issues that 15 must be resolved before a determination can be made, and it is not clear from the 16 record that the ALJ would be required to find a claimant disabled if all the 17 evidence were properly evaluated, remand is appropriate. See Benecke v. 18 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 19 1179-80 (9th Cir. 2000). 20 21 The Court finds that further administrative proceedings are appropriate. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 (remand for benefits is not appropriate when further administrative proceedings 2 would serve a useful purpose). Here, the ALJ improperly considered the medical 3 opinion evidence, which calls into question whether the assessed RFC, and resulting 4 hypothetical propounded to the vocational expert, are supported by substantial 5 evidence. “Where,” as here, “there is conflicting evidence, and not all essential 6 factual issues have been resolved, a remand for an award of benefits is 7 inappropriate.” Treichler, 775 F.3d at 1101. Instead, the Court remands this case 8 for further proceedings. 9 On remand, the ALJ should reconsider the medical opinion evidence, and 10 provide legally sufficient reasons for evaluating the opinions, supported by 11 substantial evidence. If necessary, the ALJ should order additional consultative 12 examinations and, if appropriate, take additional testimony from a medical expert. 13 Finally, the ALJ should reconsider Plaintiff’s symptom claims, the remaining steps 14 in the sequential analysis, reassess Plaintiff's RFC and, if necessary, take additional 15 testimony from a vocational expert which includes all of the limitations credited by 16 the ALJ. 17 ACCORDINGLY, IT IS ORDERED: 18 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is GRANTED, 19 and the matter is REMANDED to the Commissioner for additional 20 proceedings consistent with this Order. 21 2. Defendant’s Motion for Summary Judgment, ECF No. 11, is DENIED. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 3. Application for attorney fees may be filed by separate motion. 2 The District Court Clerk is directed to enter this Order and provide copies to 3 4 counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. DATED December 3, 2019. 5 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 GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18
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