Herring v. Kijakazi, No. 2:2020cv00348 - Document 21 (E.D. Wash. 2022)

Court Description: ORDER GRANTING 18 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 19 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. This matter is REVERSED and REMANDED to the Commissioner of Social Security for further proceedings consistent with this recommendation pursuant to sentence four of 42 U.S.C. § 405(g). This file is CLOSED. Signed by Judge Mary K. Dimke. (CLP, Case Administrator)

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Herring v. Kijakazi Doc. 21 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.705 Page 1 of 23 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Jun 09, 2022 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ZACHARY H.,1 8 No. 2:20-cv-00348-MKD Plaintiff, 9 v. 10 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL 11 SECURITY,2 12 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 18, 19 Defendant. 13 14 1 To protect the privacy of plaintiffs in social security cases, the undersigned 15 identifies them by only their first names and the initial of their last names. See 16 LCivR 5.2(c). 17 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 18 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 19 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 20 action need be taken to continue this suit. See 42 U.S.C. § 405(g). 2 ORDER - 1 Dockets.Justia.com Case 2:20-cv-00348-MKD 1 ECF No. 21 filed 06/09/22 PageID.706 Page 2 of 23 Before the Court are the parties’ cross-motions for summary judgment. ECF 2 Nos. 18, 19. The Court, having reviewed the administrative record and the parties’ 3 briefing, is fully informed. For the reasons discussed below, the Court grants 4 Plaintiff’s motion, ECF No. 18, and denies Defendant’s motion, ECF No. 19. 5 6 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 7 1383(c)(3). 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 2 ORDER - 2 Case 2:20-cv-00348-MKD 1 ECF No. 21 filed 06/09/22 PageID.707 Page 3 of 23 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 3 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 4 rational interpretation, [the court] must uphold the ALJ’s findings if they are 5 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 6 F.3d 1104, 1111 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. §§ 7 404.1502(a), 416.902(a). Further, a district court “may not reverse an ALJ’s 8 decision on account of an error that is harmless.” Id. An error is harmless “where 9 it is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 10 1115 (quotation and citation omitted). The party appealing the ALJ’s decision 11 generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 12 556 U.S. 396, 409-10 (2009). 13 14 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 15 the meaning of the Social Security Act. First, the claimant must be “unable to 16 engage in any substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in death or which 18 has lasted or can be expected to last for a continuous period of not less than twelve 19 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 20 impairment must be “of such severity that he is not only unable to do his previous 2 ORDER - 3 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.708 Page 4 of 23 1 work[,] but cannot, considering his age, education, and work experience, engage in 2 any other kind of substantial gainful work which exists in the national economy.” 3 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 4 The Commissioner has established a five-step sequential analysis to 5 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 6 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 7 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 8 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 10 404.1520(b), 416.920(b). 11 If the claimant is not engaged in substantial gainful activity, the analysis 12 proceeds to step two. At this step, the Commissioner considers the severity of the 13 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 14 claimant suffers from “any impairment or combination of impairments which 15 significantly limits [his or her] physical or mental ability to do basic work 16 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 17 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 18 however, the Commissioner must find that the claimant is not disabled. Id. 19 At step three, the Commissioner compares the claimant’s impairment to 20 severe impairments recognized by the Commissioner to be so severe as to preclude 2 ORDER - 4 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.709 Page 5 of 23 1 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 2 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 3 severe than one of the enumerated impairments, the Commissioner must find the 4 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 5 If the severity of the claimant’s impairment does not meet or exceed the 6 severity of the enumerated impairments, the Commissioner must pause to assess 7 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 8 defined generally as the claimant’s ability to perform physical and mental work 9 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 10 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 11 analysis. 12 At step four, the Commissioner considers whether, in view of the claimant’s 13 RFC, the claimant is capable of performing work that he or she has performed in 14 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 15 If the claimant is capable of performing past relevant work, the Commissioner 16 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 17 If the claimant is incapable of performing such work, the analysis proceeds to step 18 five. 19 At step five, the Commissioner considers whether, in view of the claimant’s 20 RFC, the claimant is capable of performing other work in the national economy. 2 ORDER - 5 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.710 Page 6 of 23 1 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 2 the Commissioner must also consider vocational factors such as the claimant’s age, 3 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 4 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 5 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 6 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 7 work, the analysis concludes with a finding that the claimant is disabled and is 8 therefore entitled to benefits. Id. 9 The claimant bears the burden of proof at steps one through four above. 10 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 11 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 12 capable of performing other work; and 2) such work “exists in significant numbers 13 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 14 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 15 16 ALJ’S FINDINGS On September 19, 2017, Plaintiff applied for Title II disability insurance 17 benefits. Tr. 26, 85, 200-01. On November 1, 2017, Plaintiff protectively filed for 18 Title XVI supplemental security income benefits. Tr. 26, 86, 202-07. In both 19 applications, Plaintiff alleged a disability onset date of October 15, 2015. Tr. 26, 20 200, 202. The applications were denied initially and on reconsideration. Tr. 1332 ORDER - 6 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.711 Page 7 of 23 1 36, 140-42, 143-45. Plaintiff appeared by video before an administrative law judge 2 (ALJ) on September 24, 2019. Tr. 45-84. On October 7, 2019, the ALJ denied 3 Plaintiff’s claims. Tr. 23-40. 4 At step one of the sequential evaluation process, the ALJ found Plaintiff, 5 who met the insured status requirements through September 30, 2020, has not 6 engaged in substantial gainful activity since October 15, 2015, the alleged onset 7 date. Tr. 28. At step two, the ALJ found that Plaintiff has the following severe 8 impairments: depressive disorder and anxiety disorder. Id. 9 At step three, the ALJ found Plaintiff does not have an impairment or 10 combination of impairments that meets or medically equals the severity of a listed 11 impairment. Tr. 29. The ALJ then concluded that Plaintiff has the RFC to perform 12 a full range of work at all exertional levels but with the following non-exertional 13 limitations: 14 15 16 17 18 19 20 2 [Plaintiff] is capable of engaging in unskilled, repetitive, routine tasks in two-hour increments. He can have no contact with the public, but is capable of working in proximity to, but not in coordination with, co-workers, and he can have occasional contact with supervisors. [Plaintiff] is 15% less productive than the average worker in the workplace. He will be absent from work one day per month. Tr. 30. At step four, the ALJ found Plaintiff is unable to perform any past relevant work. Tr. 33. At step five, the ALJ found that, considering Plaintiff’s age, education, work experience, RFC, and testimony from the vocational expert, there ORDER - 7 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.712 Page 8 of 23 1 were jobs that existed in significant numbers in the national economy that Plaintiff 2 could perform, such as document preparer, dresser, and small parts assembler. Tr. 3 34. Therefore, the ALJ concluded Plaintiff was not under a disability, as defined in 4 the Social Security Act, from the alleged onset date of October 15, 2015, through 5 the date of the decision. Id. 6 On July 28, 2020, the Appeals Council denied review of the ALJ’s decision, 7 Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for purposes 8 of judicial review. See 42 U.S.C. § 1383(c)(3). 9 10 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 11 him disability insurance benefits under Title II and supplemental security income 12 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 13 issues for review: 14 1. Whether the ALJ properly evaluated the medical opinion evidence; 15 2. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 16 3. Whether the ALJ conducted a proper step-five analysis. 17 ECF No. 18 at 9. 18 19 20 2 ORDER - 8 Case 2:20-cv-00348-MKD 1 2 3 ECF No. 21 filed 06/09/22 PageID.713 Page 9 of 23 DISCUSSION A. Medical Opinion Evidence Plaintiff argues the ALJ improperly rejected the opinions of Irene Kimura, 4 M.D.; Thomas Genthe, Ph.D.; and Phyllis Sanchez, Ph.D. ECF No. 18 at 11-16. 5 As an initial matter, for claims filed on or after March 27, 2017, new 6 regulations apply that change the framework for how an ALJ must evaluate 7 medical opinion evidence. Revisions to Rules Regarding the Evaluation of 8 Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 9 C.F.R. §§ 404.1520c, 416.920c. The new regulations provide that the ALJ will no 10 longer “give any specific evidentiary weight . . . to any medical 11 opinion(s) . . . .” Revisions to Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 12 5867-68; see 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, an ALJ must 13 consider and evaluate the persuasiveness of all medical opinions or prior 14 administrative medical findings from medical sources. 20 C.F.R. §§ 404.1520c(a) 15 and (b), 416.920c(a) and (b). The factors for evaluating the persuasiveness of 16 medical opinions and prior administrative medical findings include supportability, 17 consistency, relationship with the claimant (including length of the treatment, 18 frequency of examinations, purpose of the treatment, extent of the treatment, and 19 the existence of an examination), specialization, and “other factors that tend to 20 support or contradict a medical opinion or prior administrative medical finding” 2 ORDER - 9 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.714 Page 10 of 23 1 (including, but not limited to, “evidence showing a medical source has familiarity 2 with the other evidence in the claim or an understanding of our disability 3 program’s policies and evidentiary requirements”). 20 C.F.R. §§ 404.1520c(c)(1)4 (5), 416.920c(c)(1)-(5). 5 Supportability and consistency are the most important factors, and therefore 6 the ALJ is required to explain how both factors were considered. 20 C.F.R. §§ 7 404.1520c(b)(2), 416.920c(b)(2). Supportability and consistency are explained in 8 the regulations: 9 10 11 12 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 14 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 15 20 C.F.R. §§ 404.1520c(1)-(2), 416.920c(1)-(2). The ALJ may, but is not 13 16 required to, explain how the other factors were considered. 20 C.F.R. §§ 17 404.1520c(b)(2), 416.920c(b)(2). 18 1. Dr. Kimura 19 On September 30, 2019, Dr. Kimura, a treating physician, rendered an 20 opinion on Plaintiff’s functioning. Tr. 41-44. Dr. Kimura stated Plaintiff suffers 2 ORDER - 10 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.715 Page 11 of 23 1 from extreme anxiety and probable PTSD, and while Plaintiff has shown a desire 2 to overcome his symptoms, he has not been successful in finding beneficial 3 medications. Tr. 43. Dr. Kimura opined Plaintiff has no limitations in his ability 4 to interact appropriately with the general public, maintain socially appropriate 5 behavior and adhere to basic standards of neatness and cleanliness, and be aware of 6 normal hazards and take appropriate precautions; mild limitations in his ability to 7 understand and remember very short and simple instructions, carry out very short 8 and simple instructions, perform activities within a schedule, maintain regular 9 attendance, and be punctual within customary tolerances, sustain an ordinary 10 routine without special supervision, make simple work-related decisions, ask 11 simple questions or request assistance, accept instructions and respond 12 appropriately to criticism from supervisors, respond appropriately to changes in the 13 work setting, and set realistic goals or make plans independently of others; 14 moderate limitations in his ability to remember locations and work-like procedures, 15 work in coordination with or proximity to others without being distracted by them, 16 and get along with coworkers or peers without behavioral extremes; marked 17 limitations in his ability to understand and remember detailed instructions, carry 18 out detailed instructions, and maintain attention and concentration for extended 19 periods; and severe limitations in his ability to complete a normal 20 workday/workweek without interruptions from psychologically-based symptoms 2 ORDER - 11 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.716 Page 12 of 23 1 and to perform at a consistent pace without an unreasonable number and length of 2 rest periods and travel to unfamiliar places or use public transportation. Tr. 41-43. 3 Dr. Kimura’s opinion was submitted six days after the hearing. The ALJ did 4 not consider the opinion. Plaintiff argues the ALJ erred in failing to consider Dr. 5 Kimura’s opinion, as the ALJ was notified of the pending evidence more than five 6 days before the hearing. ECF No. 18 at 15. Defendant argues the ALJ did not err 7 because Plaintiff failed to provide an explanation at the hearing of good cause for 8 the delay in obtaining the evidence. ECF No. 19 at 16 (citing Tr. 48-49). If a 9 claimant seeks to have written evidence considered at the hearing, then the 10 claimant must submit or inform the ALJ about the evidence no later than five 11 business days before the date of the scheduled hearing. 20 CFR §§ 404.935(a), 12 416.1435(a). If the claimant misses this deadline but submits or informs the ALJ 13 about written evidence before the hearing decision is issued, the ALJ will accept 14 the evidence if: (1) an action of the Social Security Administration misled the 15 claimant; (2) the claimant had a physical, mental, educational, or linguistic 16 limitation(s) that prevented submitting or informing the Administrative Law Judge 17 about the evidence earlier, or (3) some other unusual, unexpected, or unavoidable 18 circumstance beyond the claimant’s control prevented the claimant from 19 submitting or informing the Administrative Law Judge about the evidence earlier. 20 20 CFR §§ 404.935(b), 416.1435(b). A listed example of an unusual, unexpected, 2 ORDER - 12 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.717 Page 13 of 23 1 or unavoidable circumstance beyond the claimant’s control is, “You actively and 2 diligently sought evidence from a source and the evidence was not received or was 3 received less than 5 business days prior to the hearing.” Id. 4 Plaintiff’s counsel sent a letter more than five days prior to the hearing, 5 which states their office and Plaintiff had contacted Dr. Kimura’s office four times 6 with no response, and Plaintiff was unable to get in for an appointment with Dr. 7 Kimura until September 30, 2019. Tr. 302. Plaintiff requested a sooner 8 appointment but was told there were no openings. Id. Dr. Kimura completed and 9 returned the questionnaire the day of the September 30 appointment. Tr. 41-44. 10 The evidence demonstrates Plaintiff and counsel actively and diligently sought 11 evidence from Dr. Kimura to try to obtain the opinion prior to the hearing, but the 12 opinion was delayed for circumstances outside of Plaintiff’s control. The ALJ also 13 stated Plaintiff submitted or informed the ALJ of all evidence at least five days 14 before the hearing. Tr. 26. The ALJ did not address the letter sent by Plaintiff’s 15 counsel regarding the attempts to obtain the records and opinion, and the ALJ gave 16 no reasons for declining to address Dr. Kimura’s opinion. The Appeals Council’s 17 action of reviewing the evidence indicates the Council considered the evidence, 18 and thus demonstrates the Council found Plaintiff satisfied the requirements of 19 timely informing Social Security of the evidence or providing good cause as to 20 why it was not submitted earlier. Tr. 1-2. 2 ORDER - 13 Case 2:20-cv-00348-MKD 1 ECF No. 21 filed 06/09/22 PageID.718 Page 14 of 23 Defendant also argues the ALJ’s failure to consider Dr. Kimura’s opinion is 2 moot, because the Appeals Council considered the evidence and found there was 3 not a reasonable probability it would have changed the outcome of the decision. 4 ECF No. 19 at 16. New evidence is material if it creates a reasonably possibility 5 that the outcome of the case would be different. Staley v. Massanari, 17 F. App’x 6 609, 610 (9th Cir. 2001) (interpreting Appeals Council’s decision and citing Booz 7 v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984)). 8 The Court finds there is a reasonable probability that a disabling opinion 9 from a treating provider, particularly when the ALJ’s analysis lacked any opinions 10 from treating providers, would have impacted the case. See Tr. 31-32, 41-43. The 11 ALJ thus erred in failing to consider Dr. Kimura’s opinion. On remand, the ALJ is 12 instructed to consider Dr. Kimura’s opinion and incorporate the limitations into the 13 RFC or give reasons supported by substantial evidence to reject the opinion. 14 2. Dr. Genthe 15 On January 12, 2018, Dr. Genthe performed a consultative examination and 16 rendered an opinion on Plaintiff’s functioning. Tr. 315-320. Dr. Genthe diagnosed 17 Plaintiff with social anxiety disorder, other specified personality disorder (with 18 borderline features), and major depressive disorder, with anxious distress. Tr. 317. 19 Dr. Genthe opined Plaintiff has marked limitations in his ability to ask simple 20 questions or request assistance; communicate and perform effectively in work 2 ORDER - 14 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.719 Page 15 of 23 1 setting; maintain appropriate behavior in work setting; and complete a normal 2 workday without interruptions from psych symptoms; and Plaintiff had no to mild 3 limitations in the remaining areas of functioning. Tr. 318. Dr. Genthe rated the 4 overall severity of Plaintiff’s diagnosed mental impairments as marked and opined 5 that Plaintiff would be impaired for nine to 12 months. Id. The ALJ found Dr. 6 Genthe’s opinion was not persuasive. Tr. 32. 7 As the case is being remanded for the ALJ to consider Dr. Kimura’s opinion, 8 the ALJ is also instructed to reconsider Dr. Genthe’s 2018 opinion. For the 9 purposes of the remand, the Court notes that the ALJ found Dr. Genthe’s 2018 10 opinion was inconsistent with Plaintiff’s lack of severe psychological findings, 11 such as an absence of psychiatric hospitalizations, episodes of psychosis, or 12 suicidal ideation. Tr. 32. However, an individual may have a disabling mental 13 health impairment without having had hospitalizations nor suicidal ideation. The 14 ALJ also found Plaintiff’s severe impairments are depression and anxiety, and the 15 ALJ does not explain how a lack of psychotic symptoms is inconsistent with 16 disabling depression or anxiety. Further, Plaintiff cites to ongoing evidence of 17 psychotic symptoms and other psychological symptoms in the record. ECF No. 18 18 at 13-14. Additionally, the new evidence documents Dr. Genthe later diagnosed 19 Plaintiff with schizophrenia, Tr. 16, 18, which may impact the ALJ’s evaluation of 20 Plaintiff’s psychotic symptoms and Dr. Genthe’s earlier opinion. The ALJ is also 2 ORDER - 15 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.720 Page 16 of 23 1 instructed to consider Dr. Genthe’s 2019 opinion and incorporate the limitations 2 into the RFC or give reasons supported by substantial evidence to reject the 3 opinion. 4 3. Dr. Sanchez 5 On January 26, 2019, Dr. Sanchez reviewed Dr. Genthe’s evaluation and 6 assessed the same limitations as Dr. Genthe. Tr. 324-26. However, the ALJ did 7 not mention Dr. Sanchez’s opinion in the administrative decision. Plaintiff argues 8 this was harmful error, ECF No. 18 at 14, while Defendant argues the ALJ’s 9 reasons for rejecting Dr. Genthe’s opinion apply equally to Dr. Sanchez’s opinion 10 and thus the failure to mention the opinion is harmless, ECF No. 19 at 14. As the 11 case is being remanded to reconsider the above opinions, the ALJ is also instructed 12 to consider Dr. Sanchez’s opinion and incorporate the opinion into the RFC or give 13 reasons supported by substantial evidence to reject the opinion. 14 15 B. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 16 convincing in discrediting his symptom reports. ECF No. 18 at 16-19. An ALJ 17 engages in a two-step analysis to determine whether to discount a claimant’s 18 testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 1119029, at *2. 19 “First, the ALJ must determine whether there is objective medical evidence of an 20 underlying impairment which could reasonably be expected to produce the pain or 2 ORDER - 16 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.721 Page 17 of 23 1 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 2 “The claimant is not required to show that [the claimant’s] impairment could 3 reasonably be expected to cause the severity of the symptom [the claimant] has 4 alleged; [the claimant] need only show that it could reasonably have caused some 5 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 6 Second, “[i]f the claimant meets the first test and there is no evidence of 7 malingering, the ALJ can only reject the claimant’s testimony about the severity of 8 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 9 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 10 omitted). General findings are insufficient; rather, the ALJ must identify what 11 symptom claims are being discounted and what evidence undermines these claims. 12 Id. (quoting Lester v. Chater, 81 F.3d 821,834; Thomas v. Barnhart, 278 F.3d 947, 13 958 (9th Cir. 2002) (requiring the ALJ to sufficiently explain why it discounted 14 claimant’s symptom claims)). “The clear and convincing standard is the most 15 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 16 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 17 924 (9th Cir. 2002)). 18 Factors to be considered in evaluating the intensity, persistence, and limiting 19 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 20 duration, frequency, and intensity of pain or other symptoms; 3) factors that 2 ORDER - 17 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.722 Page 18 of 23 1 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 2 side effects of any medication an individual takes or has taken to alleviate pain or 3 other symptoms; 5) treatment, other than medication, an individual receives or has 4 received for relief of pain or other symptoms; 6) any measures other than treatment 5 an individual uses or has used to relieve pain or other symptoms; and 7) any other 6 factors concerning an individual’s functional limitations and restrictions due to 7 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 8 404.1529(c), 416.929(c). The ALJ is instructed to “consider all of the evidence in 9 an individual’s record,” to “determine how symptoms limit ability to perform 10 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 11 Here, the ALJ found that Plaintiff’s medically determinable impairments 12 could reasonably be expected to cause some of the alleged symptoms, but that 13 Plaintiff’s statements concerning the intensity, persistence, and limiting effects of 14 his symptoms were not entirely consistent with the evidence. Tr. 31. 15 The ALJ’s evaluation of Plaintiff’s symptom claims and the resulting 16 limitations relies substantially on the ALJ’s assessment of the medical evidence. 17 Having determined a remand is necessary to readdress the medical source 18 opinions, any reevaluation must necessarily entail a reassessment of Plaintiff’s 19 subjective symptom claims. Thus, the Court need not reach this issue and on 20 remand the ALJ must also carefully reevaluate Plaintiff’s symptom claims in the 2 ORDER - 18 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.723 Page 19 of 23 1 context of the entire record. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline 3 to reach [plaintiff’s] alternative ground for remand.”). 4 5 C. Step Five Plaintiff contends the ALJ erred at step five by posing an incomplete RFC to 6 the vocational expert. ECF No. 18 at 19-20. At step five of the sequential 7 evaluation analysis, the burden shifts to the Commissioner to establish that 1) the 8 claimant can perform other work, and 2) such work “exists in significant numbers 9 in the national economy.” 20 C.F.R. §§ 404.1560I(2), 416.960I(2); Beltran, 700 10 F.3d at 389. In assessing whether there is work available, the ALJ must rely on 11 complete hypotheticals posed to a vocational expert. Nguyen v. Chater, 100 F.3d 12 1462, 1467 (9th Cir. 1996). The ALJ’s hypothetical must be based on medical 13 assumptions supported by substantial evidence in the record that reflects all of the 14 claimant’s limitations. Osenbrook v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). 15 The hypothetical should be “accurate, detailed, and supported by the medical 16 record.” Tackett, 180 F.3d at 1101. 17 The hypothetical that ultimately serves as the basis for the ALJ’s 18 determination, i.e., the hypothetical that is predicated on the ALJ’s final RFC 19 assessment, must account for all the limitations and restrictions of the claimant. 20 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). As 2 ORDER - 19 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.724 Page 20 of 23 1 discussed above, the ALJ’s RFC need only include those limitations found credible 2 and supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217 3 (9th Cir. 2005) (“The hypothetical that the ALJ posed to the VE contained all of 4 the limitations that the ALJ found credible and supported by substantial evidence 5 in the record.”). “If an ALJ’s hypothetical does not reflect all of the claimant’s 6 limitations, then the expert’s testimony has no evidentiary value to support a 7 finding that the claimant can perform jobs in the national economy.” Id. As the 8 case is being remanded for reconsideration of the medical opinion evidence and 9 Plaintiff’s symptom claims, the ALJ is also instructed to perform the five-step 10 analysis anew, including a new step five determination. 11 12 D. Remedy Plaintiff urges this Court to remand for an immediate award of benefits. 13 ECF No. 15 at 20. 14 “The decision whether to remand a case for additional evidence, or simply to 15 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 16 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). 17 When the Court reverses an ALJ’s decision for error, the Court “ordinarily must 18 remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 19 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“the 20 proper course, except in rare circumstances, is to remand to the agency for 2 ORDER - 20 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.725 Page 21 of 23 1 additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 2 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a number of Social Security 3 cases, the Ninth Circuit has “stated or implied that it would be an abuse of 4 discretion for a district court not to remand for an award of benefits” when three 5 conditions are met. Garrison, 759 F.3d at 1020 (citations omitted). Under the 6 credit-as-true rule, the Court will remand for an award of benefits when: (1) the 7 record has been fully developed and further administrative proceedings would 8 serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 9 for rejecting evidence, whether claimant testimony or medical opinion; and (3) if 10 the improperly discredited evidence were credited as true, the ALJ would be 11 required to find the claimant disabled on remand. Revels v. Berryhill, 874 F.3d 12 648, 668 (9th Cir. 2017). Even where the three prongs have been satisfied, the 13 Court will not remand for immediate payment of benefits if “the record as a whole 14 creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 F.3d at 15 1021. 16 The Court finds further proceeding are necessary to resolve inconsistencies 17 in the record, particularly among the medical opinions. While Dr. Genthe rendered 18 two disabling opinions, the opinions contain differences between them, including 19 varying diagnoses and limitations, and there are conflicting opinions from the State 20 agency psychological consultants. Dr. Genthe diagnosed Plaintiff with 2 ORDER - 21 Case 2:20-cv-00348-MKD ECF No. 21 filed 06/09/22 PageID.726 Page 22 of 23 1 schizophrenia in November 2019, Tr. 16, 18, and there are earlier references from 2 providers regarding concerns Plaintiff may have schizophrenia, Tr. 443, 485. The 3 medical records do not clearly demonstrate when Plaintiff may have met the DSM4 IV criteria for schizophrenia prior to November 2019. The Court recommends that 5 the ALJ consider calling a psychological expert at the remand hearing, to assist 6 with determining if Plaintiff meets or equals a listing, his mental RFC, and if he is 7 found currently disabled, to give an opinion as to the disability onset date. As 8 such, the case is remanded for further proceedings consistent with this Order. 9 10 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 11 ALJ’s decision is not supported by substantial evidence and is not free of harmful 12 legal error. Accordingly, IT IS HEREBY ORDERED: 13 1. The District Court Executive is directed to substitute Kilolo Kijakazi as 14 Defendant and update the docket sheet. 15 2. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is GRANTED. 16 3. Defendant’s Motion for Summary Judgment, ECF No. 19, is DENIED. 17 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 18 REVERSING and REMANDING the matter to the Commissioner of Social 19 Security for further proceedings consistent with this recommendation pursuant to 20 sentence four of 42 U.S.C. § 405(g). 2 ORDER - 22 Case 2:20-cv-00348-MKD 1 ECF No. 21 filed 06/09/22 PageID.727 Page 23 of 23 The District Court Executive is directed to file this Order, provide copies to 2 counsel, and CLOSE THE FILE. 3 DATED June 9, 2022. 4 s/Mary K. Dimke MARY K. DIMKE UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 ORDER - 23

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