Diego v. Berryhill, No. 4:2016cv05021 - Document 27 (E.D. Wash. 2017)

Court Description: ORDER GRANTING PLAINTIFF's MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS granting 20 Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (AY, Case Administrator)

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Diego v. Berryhill Doc. 27 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 JOHN S. DIEGO, 8 Plaintiff, 9 v. 10 11 12 13 14 15 16 17 18 19 20 NANCY A. BERRYHILL (PREVIOUSLY COLVIN), Acting Commissioner of Social Security, 1 No. 4:16-CV-05021-RHW ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF Nos. 20 & 25. Mr. Diego brings this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied his application for Disability Insurance Benefits and Supplemental Security Income under Titles II & XVI of the Social Security Act, 42 U.S.C §§ 401-434 & 1381- 1 Nancy A. Berryhill became the Acting Commissioner of Social Security on January 20, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Carolyn W. Colvin as the defendant in this suit. No further action need be taken to continue this suit. 42 U.S.C. § 405(g). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 1 Dockets.Justia.com 1 1383F. After reviewing the administrative record and briefs filed by the parties, 2 the Court is now fully informed. For the reasons set forth below, the Court 3 GRANTS Plaintiff’s Motion for Summary Judgment and REMANDS for further 4 proceedings. 5 I. Jurisdiction 6 Mr. Diego filed concurrent applications for Disability Insurance Benefits 7 under Title II and Supplemental Security Income under Title XVI on October 7, 8 2009. AR 137-43. His alleged onset date is July 1, 2002. AR 137. His application 9 was initially denied on January 11, 2010, AR 69-71, and on reconsideration on 10 February 25, 2010, AR 77-78. 11 A hearing with Administrative Law Judge (“ALJ”) Mattie Harvin-Woode 12 occurred on March 24, 2011. AR 27-64. On April 25, 2011, ALJ Harvin-Woode 13 issued a decision finding Mr. Diego ineligible for disability benefits under Titles II 14 and XVI. AR 8-26. The Appeals Council denied Mr. Diego’s request for review on 15 September 20, 2012, AR 1-5. 16 Mr. Diego timely filed an action challenging the denial of benefits in the 17 United States District Court for the Eastern District of Washington on October 16, 18 2012. AR 830. Magistrate Judge Victor E. Bianchini granted Mr. Diego’s motion 19 for summary judgment and remanded the case for further proceedings on May 5, 20 2014. AR 838-59. Magistrate Judge Bianchini found that ALJ Harvin-Woode ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 2 1 erroneously discounted the seriousness of Mr. Diego’s mental health symptoms 2 based on his failure to follow treatment recommendations, which, combined with 3 new material evidence in the form new subsequent opinions by Drs. Steven 4 Johansen, PhD, and N.K. Marks, PhD, provided basis for remand. AR 853-54. The 5 second ALJ was instructed on remand to “consider what weight to assign these 6 opinions, if any, and revise the RFC determination (and vocational expert 7 hypothetical) accordingly.” AR 857. 8 In response, the Appeals Council vacated the final decision of the 9 Commissioner of Social Security and remanded the case to a new ALJ for further 10 proceedings consistent with Magistrate Judge Bianchini’s order. AR 866-67. Prior 11 to receiving a decision on his pending claim, Mr. Diego filed a new claim for 12 supplemental security income under Title XVI on October 26, 2012, which the 13 Appeals Council deemed duplicative and instructed the new ALJ to consolidate the 14 claims. Id. 15 Mr. Diego was granted a new hearing with ALJ R.J. Payne on February 4, 16 2015, AR 740-79, a supplemental hearing was held on April 13, 2015, AR 780- 17 827. On August 11, 2015, the ALJ issued a decision finding Mr. Diego ineligible 18 for disability benefits under the consolidated claims. AR 680-91. The Appeals 19 Council denied Mr. Diego’s request for review on February 9, 2016, AR 651-60, 20 making ALJ Payne’s ruling the “final decision” of the Commissioner. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 3 1 Mr. Diego timely filed the present action challenging the denial of benefits 2 on February 24, 2016. ECF No. 3. Accordingly, Mr. Diego’s claims are properly 3 before this Court pursuant to 42 U.S.C. § 405(g). 4 5 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 6 substantial gainful activity by reason of any medically determinable physical or 7 mental impairment which can be expected to result in death or which has lasted or 8 can be expected to last for a continuous period of not less than twelve months.” 42 9 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 10 under a disability only if the claimant’s impairments are of such severity that the 11 claimant is not only unable to do his previous work, but cannot, considering 12 claimant's age, education, and work experience, engage in any other substantial 13 gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) & 14 1382c(a)(3)(B). 15 The Commissioner has established a five-step sequential evaluation process 16 for determining whether a claimant is disabled within the meaning of the Social 17 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 18 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 19 20 Step one inquires whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 4 1 activity is defined as significant physical or mental activities done or usually done 2 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 3 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 4 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 5 Step two asks whether the claimant has a severe impairment, or combination 6 of impairments, that significantly limits the claimant’s physical or mental ability to 7 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 8 impairment is one that has lasted or is expected to last for at least twelve months, 9 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 10 416.908-09. If the claimant does not have a severe impairment, or combination of 11 impairments, the disability claim is denied, and no further evaluative steps are 12 required. Otherwise, the evaluation proceeds to the third step. 13 Step three involves a determination of whether any of the claimant’s severe 14 impairments “meets or equals” one of the listed impairments acknowledged by the 15 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 16 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 17 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 18 equals one of the listed impairments, the claimant is per se disabled and qualifies 19 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to 20 the fourth step. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 5 1 Step four examines whether the claimant’s residual functional capacity 2 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) 3 & 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant 4 is not entitled to disability benefits and the inquiry ends. Id. 5 Step five shifts the burden to the Commissioner to prove that the claimant is 6 able to perform other work in the national economy, taking into account the 7 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 8 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 9 burden, the Commissioner must establish that (1) the claimant is capable of 10 performing other work; and (2) such work exists in “significant numbers in the 11 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 12 676 F.3d 1203, 1206 (9th Cir. 2012). 13 14 III. Standard of Review A district court's review of a final decision of the Commissioner is governed 15 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 16 Commissioner's decision will be disturbed “only if it is not supported by 17 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 18 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than 19 a mere scintilla but less than a preponderance; it is such relevant evidence as a 20 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 6 1 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 2 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 3 whether the Commissioner’s findings are supported by substantial evidence, “a 4 reviewing court must consider the entire record as a whole and may not affirm 5 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 6 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 7 F.2d 498, 501 (9th Cir. 1989)). 8 9 In reviewing a denial of benefits, a district court may not substitute its judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 10 1992). If the evidence in the record “is susceptible to more than one rational 11 interpretation, [the court] must uphold the ALJ's findings if they are supported by 12 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 13 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 14 2002) (if the “evidence is susceptible to more than one rational interpretation, one 15 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 16 a district court “may not reverse an ALJ's decision on account of an error that is 17 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 18 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 19 The burden of showing that an error is harmful generally falls upon the party 20 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 7 1 2 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings, 3 and only briefly summarized here. Mr. Diego was born in 1962. AR 689. He has at 4 least a high school education and previously worked as a project engineer and a 5 construction superintendent. Id. 6 Mr. Diego sustained a significant work injury in June 2002 that affected his 7 eyes. AR 683. The accident resulted in a detached retina and blindness in his right 8 eye. Id. His left eye is extremely myopic and requires a soft contact lens with a 9 very high prescription. Id. The accident also resulted in depression and anxiety, 10 particularly in crowded places. Id. 11 12 13 14 V. The ALJ’s Findings The ALJ determined that Mr. Diego was not under a disability within the meaning of the Act from July 1, 2002, through the date of the decision. AR 680-91. At step one, the ALJ found that Mr. Diego had not engaged in substantial 15 gainful activity since July 1, 2002 (citing 20 C.F.R. §§ 404.1571 et seq. & 416.971 16 et seq.). AR 682. 17 At step two, the ALJ found Mr. Diego had the following severe 18 impairments: loss of vision in the right eye with diminished vision in the left eye; 19 depressive disorder; and anxiety disorder (citing 20 C.F.R. §§ 404.1520(c) & 20 416.920(c)). AR 683. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 8 1 At step three, the ALJ found that Mr. Diego did not have an impairment or 2 combination of impairments that meets or medically equals the severity of one of 3 the listed impairments in 20 C.F.R. §§ 404, Subpt. P, App. 1. AR 683-84. 4 At step four, the ALJ found Mr. Diego had the following residual function 5 capacity: He can “perform a full range of work at all exertional levels but with the 6 following nonexertional limitations: he must never climb ladders, ropes, or 7 scaffolds. He must also avoid work around temperature extremes, at unprotected 8 heights, with hazardous machinery, and work requiring commercial driving. [He] 9 is unable to do a job requiring exposure to excessive dust; requiring good bilateral 10 depth perception; requiring acute depth perception, such as working with small 11 parts; or requiring bilateral peripheral visions. [Mr. Diego] is able to understand, 12 remember, and carry out simple and complex work instructions. He can have no 13 contact with the general public, and he would perform best at jobs that are 14 repetitive and straight-forward with little change. He would do best in jobs where 15 the instructions are clear and routine, and he is unable to travel alone or 16 independently. [He] has physical and mental symptomatology, including pain, for 17 which he takes prescription medication; however, despite the level of pain and/or 18 any side effects of the medications, [Mr. Diego] would be able to remain 19 reasonably attentive and responsive in a work setting and would be able to carry 20 out normal work assignments satisfactorily.” AR 684. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 9 1 2 The ALJ determined that Mr. Diego is unable to perform his past relevant work. AR 689. 3 At step five, the ALJ found that in light of his age, education, work 4 experience, and residual functional capacity, there are other jobs that exist in 5 significant numbers in the national economy that Mr. Diego can perform. AR 689- 6 90. 7 8 9 VI. Issues for Review Mr. Diego argues that the Commissioner’s decision is not free of legal error and not supported by substantial evidence. Specifically, he argues the ALJ erred 10 by: (1) failing to give specific, clear, and convincing reasons for rejecting Mr. 11 Diego’s report that he was unable to wear his contact lens for more than a few 12 hours at a time; (2) failing to address the opinion of Dr. Marks; and (3) failing to 13 get clarification from the vocational expert regarding the apparent conflict between 14 the Dictionary of Occupational Titles, the Selected Characteristics of Occupations, 15 and the vocational expert’s testimony about the jobs Mr. Diego can perform. ECF 16 No. 20 at 2. 17 VII. Discussion 18 A. The ALJ did not err with regard to Mr. Diego’s credibility, including 19 his testimony regarding his ability to tolerate his contact lens. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 10 1 An ALJ engages in a two-step analysis to determine whether a claimant’s 2 testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533 3 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective 4 medical evidence of an underlying impairment or impairments that could 5 reasonably be expected to produce some degree of the symptoms alleged. Id. 6 Second, if the claimant meets this threshold, and there is no affirmative evidence 7 suggesting malingering, “the ALJ can reject the claimant’s testimony about the 8 severity of [his] symptoms only by offering specific, clear, and convincing reasons 9 for doing so.” Id. 10 In weighing a claimant's credibility, the ALJ may consider many factors, 11 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 12 reputation for lying, prior inconsistent statements concerning the symptoms, and 13 other testimony by the claimant that appears less than candid; (2) unexplained or 14 inadequately explained failure to seek treatment or to follow a prescribed course of 15 treatment; and (3) the claimant's daily activities.” Smolen v. Chater, 80 F.3d 1273, 16 1284 (9th Cir. 1996). When evidence reasonably supports either confirming or 17 reversing the ALJ's decision, the Court may not substitute its judgment for that of 18 the ALJ. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). “General findings 19 are insufficient: rather the ALJ must identify what testimony is not credible and 20 what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 11 1 The ALJ noted that among Mr. Diego’s testimony were comments about the 2 limitations surrounding his contact lens and his need to remove it two to three 3 times a day to rest his eye. AR 685. In totality, ALJ Payne found that Mr. Diego’s 4 symptom testimony was not entirely credible, which includes his statements 5 regarding his tolerance of his contact lens. Id. 6 ALJ Payne notes that his visual acuity has remained generally stable, id., 7 which is supported by the record. See e.g. AR 621, 1065, 1252. Additionally, the 8 ALJ noted that Mr. Diego can sometimes drive and travel to Spain. AR 685. These 9 activities, however, all go toward his ability to see, which is not in dispute. The 10 ALJ provides no references to information in the record that counters Mr. Diego’s 11 alleged need to remove the contact periodically throughout the day to relieve his 12 eye from the discomfort caused by the lens. 13 The record, however, also does not support Mr. Diego’s assertions. For 14 example, on August 3, 2011, Mr. Diego reported to Dr. Samuel Barloon, M.D., 15 that he had irritation in his left eye “for a few days,” which “occurs once a month,” 16 a condition Mr. Diego believed to be “due to the soft contacts.” AR 634. While this 17 shows irritation, it is not consistent with his report that he cannot wear the contact 18 on his left eye for more than a few hours at a time, or that it affects him every day. 19 When Mr. Diego visited Dr. Richard Harrison, O.D., in April 2014, he did not 20 appear to complain of discomfort, as one would expect with the level of ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 12 1 impairment Mr. Diego alleges. AR 1248-54. Both of these issues were discussed at 2 Mr. Diego’s hearings, demonstrating that ALJ Payne was aware of them. AR 760- 3 66. Further, medical expert Dr. Philip Gerber, M.D., was able to review the full 4 medical record and testified at Mr. Diego’s second hearing that he saw no evidence 5 that Mr. Diego would need to take his contact out multiple times per day. AR 761- 6 62. 7 The ALJ performed an adequate assessment of Mr. Diego’s credibility and 8 provided multiple reasons for this determination. While there is not a specific 9 reference to the contact lens comfort, the ALJ properly evaluated Mr. Diego’s 10 overall credibility and determined his statements were not entirely credible. This 11 analysis is supported by the record. Further, even if this omission were in error, the 12 error would be harmless because the record also does not support Mr. Diego’s 13 claims regarding his need to frequently remove his contact lens. 14 B. The ALJ erred by failing to consider the opinion of Dr. Marks. 15 Dr. Marks performed a psychological evaluation of Mr. Diego on February 16 20, 2012. AR 651-56. Dr. Marks diagnosed Mr. Diego with post-traumatic stress 17 disorder, major depressive disorder, and panic disorder with agoraphobia. AR 655. 18 Dr. Marks opined that “it would be extremely difficult for him to maintain any sort 19 of employment due to his lack of vision, and his extreme anxiety with leaving his 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 13 1 home.” Id. Mr. Diego’s function, Dr. Marks further believed, would be limited in 2 unfamiliar environments, which could trigger panic attacks. Id. 3 Dr. Marks’s opinion was submitted after the first hearing with ALJ Harvin- 4 Woode. Magistrate Judge Bianchini, on remand, noted that new evidence created a 5 “reasonable possibility that the ALJ would reach a different decision if given the 6 opportunity to consider it.” AR 852. This new evidence consisted of both Drs. 7 Marks’s and Johansen’s opinions. AR 851-53. On remand, the Appeals Council 8 instructed the second ALJ to conduct further proceedings “consistent with the 9 order of the court.” AR 866. This, therefore, would require ALJ Payne to have 10 considered both Drs. Johansen’s and Marks’s opinions, but only Dr. Johansen’s 11 opinion was mentioned by ALJ Payne. See AR 680-91. 12 The rule of mandate “provides that any district court that has received the 13 mandate of an appellate court cannot vary or examine that mandate for any purpose 14 other than executing it.” Stacy v. Colvin, 825 F.3d 563, 568 (9th Cir. 2016) 15 (quoting Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012) (internal 16 quotations omitted)). The rule of mandate applies to Social Security cases. Stacy, 17 825 F.3d at 567. 18 An ALJ need not provide extensive conclusions, but he or she must provide 19 some reasoning to allow the court to “meaningfully determine whether the ALJ’s 20 conclusions were supported by substantial evidence.” Treichler v. Comm’r of Soc. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 14 1 Sec. Admin., 775 F.3d 1090, 1103. ALJ Payne does not reference Dr. Marks’s 2 opinion at all, which is error. 3 The Commissioner argues that this error was harmless because an additional 4 medical opinion regarding Mr. Diego’s mental state was added following 5 Magistrate Judge Bianchini’s order. ECF No. 25. The opinion cited is that of Dr. 6 Margaret Moore, Ph.D., a non-examining doctor who reviewed the record and 7 provided an opinion, of which ALJ Payne afforded significant weight. Id. 8 9 The Ninth Circuit has distinguished between three classes of medical providers in defining the weight to be given to their opinions: (1) treating 10 providers, those who actually treat the claimant; (2) examining providers, those 11 who examine but do not treat the claimant; and (3) non-examining providers, those 12 who neither treat nor examine the claimant. Lester, 81 F.3d at 830. 13 A treating provider’s opinion is given the most weight, followed by an 14 examining provider, and finally a non-examining provider. Id. at 830-31. In the 15 absence of a contrary opinion, a treating or examining provider’s opinion may not 16 be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a 17 treating or examining provider’s opinion is contradicted, it may only be discounted 18 for “specific and legitimate reasons that are supported by substantial evidence in 19 the record.” Id. at 830-31. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 15 1 The Court does not find that the omission of an examining doctor’s opinion 2 is harmless error when presented only with a conflicting opinion of a non- 3 examining doctor. In this case, no reasons, much less specific and legitimate ones, 4 were provided for rejecting Dr. Marks’s opinion. Even if, as the Commissioner 5 asserts (without support from the decision), ALJ Payne rejected Dr. Marks’s 6 opinion because of that of Dr. Moore, ALJ Payne was still required to provide 7 specific and legitimate reasons for doing so. The failure to address Dr. Marks’s 8 opinion is reversible error. 9 C. The Court need not reach the issue of conflict between the vocational 10 expert’s testimony, the Dictionary of Occupational Titles, and the 11 Selected Characteristics of Occupations. 12 At step five, the burden is on the Commissioner to demonstrate that the 13 claimant can perform other substantial gainful activity and that a significant 14 number of jobs exist in the national economy that the claimant can perform. 15 Beltran, 676 F.3d at 1206. To sustain this burden, the Commissioner relied on the 16 testimony of vocational expert Daniel McKinney. AR 812-26. Mr. McKinney 17 testified that an individual with Mr. Diego’s residual functional capacity could 18 perform the jobs of garment sorter, housekeeper, warehouse checker, packing line 19 worker, industrial cleaner, and assembler. AR 817-19. Mr. Diego argues that these 20 jobs’ definitions in the Dictionary of Occupational Titles and the Selected ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 16 1 Characteristics of Occupations conflict with the hypothetical posed to Mr. 2 McKinney. ECF No. 20 at 11. The Court need not reach this issue, however, as the 3 Court find that a reasonable possibility that the step five analysis may have been 4 different if Dr. Marks’s opinion had been properly considered. 5 D. Remedy 6 The Court has the discretion to remand the case for additional evidence and 7 findings or to award benefits. Smolen, 80 F.3d at 1292. The Court may award 8 benefits if the record is fully developed and further administrative proceedings 9 would serve no useful purpose. Id. Remand is appropriate when additional 10 administrative proceedings could remedy defects. Rodriguez v. Bowen, 876 F.2d 11 759, 763 (9th Cir. 1989). In this case, the Court finds that further proceedings are 12 necessary for a proper determination to be made. 13 Specifically, the ALJ shall consider the opinion of Dr. Marks. The ALJ shall 14 conform to the legal standards set forth in this Circuit regarding the opinions of 15 examining doctors. Once properly considering the opinion, the ALJ shall 16 recalculate the residual functional capacity, considering all impairments, and then 17 evaluate, based on this updated residual functional capacity, Mr. Diego’s ability to 18 perform past relevant work, as well as work available in the national economy. 19 // 20 // ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 17 1 VIII. Conclusion 2 Having reviewed the record and the ALJ’s findings, the Court finds the 3 ALJ’s decision is not supported by substantial evidence or free of legal error. 4 Accordingly, IT IS ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 20, is GRANTED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 25, is DENIED. 7 3. The District Court Executive is directed to enter judgment in favor of 8 Plaintiff. 4. This matter is REMANDED to the Commissioner for further proceedings 9 10 11 12 13 14 consistent with this Order. IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to counsel and close the file. DATED this 27th day of January, 2017. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 15 16 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMAND FOR FURTHER PROCEEDINGS ~ 18

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