Costello v. Commissioner of Social Security, No. 4:2018cv05040 - Document 18 (E.D. Wash. 2019)

Court Description: ORDER GRANTING 12 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, and denying 16 Defendant's Motion for Summary Judgment. Case is CLOSED. Signed by Senior Judge Robert H. Whaley. (LR, Case Administrator)

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Costello v. Commissioner of Social Security Doc. 18 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Apr 01, 2019 SEAN F. MCAVOY, CLERK 2 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 BRIGETTE C., 8 Plaintiff, No. 4:18-CV-05040-RHW v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 9 10 11 12 13 14 15 16 17 18 19 COMMISSIONER OF SOCIAL SECURITY, Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF Nos. 12 & 16. Plaintiff brings this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied her application for Disability Insurance Benefits and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C §§ 401-434 & 1381-1383f. After reviewing the administrative record and briefs filed by the parties, the Court is now fully informed. For the reasons set forth below, the Court 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 GRANTS Plaintiff’s Motion for Summary Judgment and DENIES Defendant’s 2 Motion for Summary Judgment. 3 4 I. JURISDICTION Plaintiff filed her application for Disability Insurance Benefits and 5 Supplemental Security Income on October 28, 2014. AR 308-15. Her alleged onset 6 date of disability is September 1, 2006. AR 308, 310. Plaintiff’s application was 7 initially denied on January 20, 2015, AR 167-68, 177, and on reconsideration on 8 April 14, 2015, AR 18, 189, 198. 9 A hearing with Administrative Law Judge (“ALJ”) Mark Kim occurred on 10 March 7, 2017. AR 118-57. On May 17, 2017, the ALJ issued a decision finding 11 Plaintiff ineligible for disability benefits. AR 16-30. The Appeals Council denied 12 Plaintiff’s request for review on January 9, 2018, AR 1-5, making the ALJ’s ruling 13 the “final decision” of the Commissioner. 14 Plaintiff timely filed the present action challenging the denial of benefits, on 15 February 7, 2018. ECF No. 3. Accordingly, Plaintiff’s claims are properly before 16 this Court pursuant to 42 U.S.C. § 405(g). 17 18 II. SEQUENTIAL EVALUATION PROCESS The Social Security Act defines disability as the “inability to engage in any 19 substantial gainful activity by reason of any medically determinable physical or 20 mental impairment which can be expected to result in death or which has lasted or ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 can be expected to last for a continuous period of not less than twelve months.” 42 2 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 3 under a disability only if the claimant’s impairments are of such severity that the 4 claimant is not only unable to do his previous work, but cannot, considering 5 claimant's age, education, and work experience, engage in any other substantial 6 gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a claimant is disabled within the meaning of the Social 9 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 10 11 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Step one inquires whether the claimant is presently engaged in “substantial 12 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 13 activity is defined as significant physical or mental activities done or usually done 14 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 15 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 16 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 17 Step two asks whether the claimant has a severe impairment, or combination 18 of impairments, that significantly limits the claimant’s physical or mental ability to 19 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 20 impairment is one that has lasted or is expected to last for at least twelve months, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 2 416.908-09. If the claimant does not have a severe impairment, or combination of 3 impairments, the disability claim is denied, and no further evaluative steps are 4 required. Otherwise, the evaluation proceeds to the third step. 5 Step three involves a determination of whether any of the claimant’s severe 6 impairments “meets or equals” one of the listed impairments acknowledged by the 7 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 8 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 9 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 10 equals one of the listed impairments, the claimant is per se disabled and qualifies 11 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the 12 fourth step. 13 Step four examines whether the claimant’s residual functional capacity 14 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) & 15 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant is 16 not entitled to disability benefits and the inquiry ends. Id. 17 Step five shifts the burden to the Commissioner to prove that the claimant is 18 able to perform other work in the national economy, taking into account the 19 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 20 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 burden, the Commissioner must establish that (1) the claimant is capable of 2 performing other work; and (2) such work exists in “significant Gallo in the 3 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 4 676 F.3d 1203, 1206 (9th Cir. 2012). 5 6 III. STANDARD OF REVIEW A district court's review of a final decision of the Commissioner is governed 7 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 8 Commissioner's decision will be disturbed “only if it is not supported by 9 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 10 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than a 11 mere scintilla but less than a preponderance; it is such relevant evidence as a 12 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 13 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 14 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 15 whether the Commissioner’s findings are supported by substantial evidence, “a 16 reviewing court must consider the entire record as a whole and may not affirm 17 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 18 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 19 F.2d 498, 501 (9th Cir. 1989)). 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 3 1992). If the evidence in the record “is susceptible to more than one rational 4 interpretation, [the court] must uphold the ALJ's findings if they are supported by 5 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 6 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 7 2002) (if the “evidence is susceptible to more than one rational interpretation, one 8 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 9 a district court “may not reverse an ALJ's decision on account of an error that is 10 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 11 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 12 The burden of showing that an error is harmful generally falls upon the party 13 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 14 IV. 15 STATEMENT OF FACTS The facts of the case are set forth in detail in the transcript of proceedings 16 and only briefly summarized here. Plaintiff was 28 years old on the date the 17 application was filed. AR 16, 28, 308, 310. She has at least a high school 18 education. Id. Plaintiff is able to communicate in English. AR 28, 330. Plaintiff has 19 past relevant work as a housekeeping cleaner/maid. AR 28. 20 // ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 2 V. THE ALJ’S FINDINGS The ALJ determined that Plaintiff has not been under a disability within the 3 meaning of the Act since September 1, 2006, the date the alleged onset. AR 17, 30. 4 At step one, the ALJ found that Plaintiff has not engaged in substantial 5 gainful activity since the filing of her application on September 1, 2006, the 6 alleged onset date (citing 20 C.F.R. § 416.971 et seq.). AR 18. 7 At step two, the ALJ found that Plaintiff has the following severe 8 impairments: major depressive disorder; generalized anxiety disorder; obsessive 9 compulsive disorder; eating disorder; fibromyalgia; and headaches/migraines 10 11 (citing 20 C.F.R. § 416.920(c)). Id. At step three, the ALJ found that Plaintiff does not have an impairment or 12 combination of impairments that met or medically equaled the severity of the listed 13 impairments in 20 C.F.R. § 404, Subpt. P, App. 1 (citing 20 C.F.R. §§§ 416. 14 920(d), 416.925 and 416.926). AR 19. 15 At step four, the ALJ found that Plaintiff has the residual functional 16 capacity to perform light work with some exceptions: she can never climb ladders, 17 ropes, or scaffolds; she should avoid all exposure to extreme temperatures, 18 excessive noise (in excess of an office setting), and hazards such as dangerous 19 moving machinery and unprotected heights; she is limited to simple routine tasks 20 with no production rate or pace work; she is limited to occasional interaction with ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 the public and coworkers; and she must avoid all exposure to odors and chemicals. 2 AR 21. 3 4 5 The ALJ determined that Plaintiff was unable to perform any past relevant work. AR 28. At step five, the ALJ found that in light of Plaintiff’s age, education, work 6 experience, and residual functional capacity, there are jobs that exist in significant 7 numbers in the national economy that he can have perform. AR 30. These include, 8 final assembler, small products assembler, and hand packager. AR 28-29. 9 10 VI. ISSUES FOR REVIEW Plaintiff argues that the Commissioner’s decision is not free of legal error 11 and not supported by substantial evidence. Specifically, she argues the ALJ erred 12 by: (1) Improperly assessing Plaintiff’s symptom testimony; (2) improperly 13 assessing the medical opinion evidence; (3) improperly concluding that Plaintiff’s 14 migraines do not medically equal Listing 11.02 at step three of the sequential 15 evaluation. 16 17 VII. DISCUSSION A. The ALJ Erred by Improperly Assessing Plaintiff’s Migraine Headaches at Step Three of the Five Step Sequential Evaluation. 18 Plaintiff testified to experiencing her first migraine at eight years old. AR 131, 19 430, 564. Plaintiff claims that her migraines have continued throughout her life and 20 that they have worsened over time. AR 131. She has taken multiple prescriptions ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 for her migraines, undergone physical therapy, Botox injection, and steroid 2 injection. AR 56, 82, 87, 91, 97, 106, 521-31, 586, Plaintiff argues that she is 3 presumptively disabled at step three because her migraines meet or exceed the 4 criteria of Listing 11.02. 5 6 1. Legal standard. A claimant is presumptively disabled and entitled to benefits if he or she 7 meets or equals a listed impairment. To meet a listed impairment, a disability 8 claimant must establish that his condition satisfies each element of the listed 9 impairment in question. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Tackett 10 v. Apfel, 180 F.3d 1094, 1099 (9th Cir.1999). To equal a listed impairment, a 11 claimant must establish symptoms, signs, and laboratory findings at least equal in 12 severity and duration to each element of the most similar listed impairment. 13 Tackett, 180 F.3d at 1099-1100 (quoting 20 C.F.R. 404.1526). 14 The SSA’s Program Operations Manual System (“POMS”) sets forth 15 multiple ways for the SSA to determine medical equivalence where the claimant 16 has an impairment that is not described in the Listing of Impairments. POMS DI 17 24505.015(B)(2)(b). POMS also provides the following rationale requirements for 18 use in determining medical equivalence for unlisted impairments; the ALJ should: 19 (1) discuss the claimant's impairment, medical findings, and non-medical findings; 20 (2) discuss the listing considered the most closely analogous listing; (3) compare ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 the findings of claimant's impairment to the findings of the most closely analogous 2 listing; (4) explain why the findings of the claimant's impairment are at least of 3 equal medical significance to the most closely analogous listing; and (5) cite the 4 most closely analogous listing. Id. at 24505.015(B)(6)(c). 5 2. The ALJ properly determined that epilepsy is the most analogous listing to migraines. 6 Under the regulations because no listing for migraine headaches exists, the 7 ALJ was required to compare the findings to “closely analogues listed 8 impairments.” 20 C.F.R. §§ 404.1526(b)(2), 404.1526(2)(3). The “responsibility 9 for deciding medical equivalence rests with the administrative law judge or 10 Appeals Council.” 20 C.F.R. § 404.1526(2)(3). The POMS indicates that Listing 11 11.02 is the most closely analogous listed impairment to migraine headaches. 12 POMS DI 24505.015; see 20 C.F.R Pt. 404, Subpt. P, App. 1, Listing 11.02. 13 Notably, out of all unlisted impairments, the SSA used chronic migraines to 14 provide an illustrative example of how the above rationale could be applied: 15 16 17 18 19 20 A claimant has chronic migraine headaches for which she sees her treating doctor on a regular basis. Her symptoms include aura, alteration of awareness, and intense headache with throbbing and severe pain. She has nausea and photophobia and must lie down in a dark and quiet room for relief. Her headaches last anywhere from 4 to 72 hours and occur at least 2 times or more weekly. Due to all of her symptoms, she has difficulty performing her ADLs. The claimant takes medication as her doctor prescribes. The findings of the claimant's impairment are very similar to those of 11.03, Epilepsy, non-convulsive. Therefore, 11.03 is the most closely analogous listed ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 impairment. Her findings are at least of equal medical significance as those of the most closely analogous listed impairment. Therefore, the claimant's impairment medically equals Listing 11.02. 2 3 POMS DI 24505.015(B)(7)(b), Example 2. 1 4 Thus, the SSA provides specific guidance regarding the applicability of 5 6 7 8 9 10 11 12 13 14 15 16 Listing 11.02 to the step three medical equivalence analysis for migraine headaches. An ALJ's failure to specifically consider Listing 11.02 constitutes legal error when a claimant’s migraine headaches were found to be severe at step two. Edwards v. Colvin, 2014 WL 7156846, at *3 (W.D. Wash. Sept. 15, 2014); Spiteri v. Colvin, 2016 WL 7425924, at *10 (N.D. Cal. Dec. 23, 2016); Mesecher v. Berryhill, 2017 WL 998373, at *5 (the failure to consider a relevant listing is error). While the ALJ did note that 11.02 was the appropriate Listing, the ALJ failed to specifically consider Plaintiff’s subjective complaints as elements of the Listing. Further, the ALJ did not consider all of the elements required by Listing 11.02 because the record was not fully developed with regard to one element; the headaches must be “documented by detailed description of a typical [migraine 17 18 19 20 1 The Court notes that Listing 11.03 referenced in this Example is a former operating section that was removed just to prior the ALJ’s decision in this case. In 2017, the SSA combined Listing 11.03, non-convulsive epilepsy, and Listing 11.02, conclusive epilepsy, into 11.02 removing 11.03. See Revised Medical Criteria for Evaluating Neurological Disorders, 81 FR 43048–01, 2016 WL 3551949, at *43056 (July 1, 2016). However, the Example may still be looked to as a useful tool when determining whether a plaintiff’s headaches meet an analogous Listing. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 headache], including all associated phenomena.” 20 C.F.R Pt. 404, Subpt. P, App. 2 1, listing 11.02. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 3. The ALJ improperly analyzed Plaintiff’s migraines under the Listing and erred by failing to fully and fairly develop the record. It is important to note that, at step three of the sequential evaluation process, it is still the claimant's burden to prove that her impairment meets or equals one of the impairments listed in 20 C.F.R. § 404, Subpart P. Oviatt v. Com'r of Soc. Sec. Admin., 303 F. App'x 519, 523 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir.2007); Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir.2005). However, in Social Security cases, the ALJ has a special duty to develop the record fully and fairly and to ensure that the claimant's interests are considered, even when the claimant is represented by counsel. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.2001); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983). The regulations provide that the ALJ may attempt to obtain additional evidence when the evidence as a whole is insufficient to make a disability determination, or if after weighing the evidence the ALJ cannot make a disability determination. 20 C.F.R. § 404.1527(c)(3); see also 20 C.F.R. § 404.1519a. Importantly, “[a]n ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 2001); Tonapetyan, 242 F.3d at 1150. “The ALJ may discharge this duty in several 2 ways, including: subpoenaing the claimant’s physicians, submitting questions to 3 the claimant’s physicians, continuing the hearing, or keeping the record open after 4 the hearing to allow supplementation of the record.” Tonapetyan, 242 F.3d at 1150 5 (citing Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998); Smolen v. Chater, 80 6 F.3d 1273, 1288 (9th Cir. 1996)). The ALJ failed to develop the record in the case 7 at hand. 8 The ALJ determined that Plaintiff’s migraines did not meet or equal any of 9 the neurological listings, including epilepsy, Listing 11.02. AR 19. To support her 10 determination, the ALJ pointed to the lack of medical evidence, particularly from a 11 medical professional, of a detailed description based on personal observation of 12 one of claimant’s headache events. Id. Listing 11.02 does require migraine 13 headaches be “documented by detailed description of a typical [migraine 14 headache], including all associated phenomena.” 20 C.F.R Pt. 404, Subpt. P, App. 15 1, listing 11.02. The ALJ further noted mostly normal neurological scans and a 16 normal CT scan, and that the majority of the evidence consisted of Plaintiff’s 17 subjective complaints. Id. For the following reasons, the ALJ incorrectly analyzed 18 Plaintiff’s migraines at step three. 19 20 With regard to Plaintiff’s normal scans, while there may not be a laboratory or blood test to confirm a migraine disorder, and it may be that radiologic studies ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 do not always reveal an objectively-defined source of migraine pain, it is possible 2 to present objective-like evidence to establish the severity of the claimed 3 impairment such as the treating physician's personal observations of any physical 4 manifestations of pain, chart notes reflecting ongoing attempts at treatment with 5 medication(s), trips to the emergency room or hospital admissions for disabling 6 migraine pain, a record of associated symptoms, or other similar evidence. 7 Mehrnoosh v. Astrue, 2011 WL 2173809, at *7 (D. Or. June 2, 2011). There are 8 several notations in the record with regard to Plaintiff’s pain during appointments 9 and ongoing attempts at treatment and medications. AR 52, 88, 109, 112, 429-30, 10 452, 455, 496, 527, 564. Further, neither the SSA nor the federal courts require that 11 an impairment, including migraines, be proven through objective clinical findings. 2 12 Thompson v. Barnhart, 493 F. Supp. 2d 1206, 1215 (S.D. Ala. 2007). 13 14 15 16 17 18 19 20 2 See, e.g., Ortega v. Chater, 933 F.Supp. 1071, 1075 (S.D.Fla.1996) (noting that “present-day laboratory tests cannot prove the existence of migraine headaches[ ]” and holding that an ALJ improperly discounted a treating physician's opinion that a claimant was disabled by migraines, despite the fact that there were no laboratory tests confirming the existence or severity of the headaches, where the opinion of the treating physician was consistent, extensive, and substantiated by objective medical evidence that the claimant suffered from symptoms that were associated with severe migraine headaches); see also e.g., Stebbins v. Barnhart, 2003 WL 23200371, *10–11 (W.D.Wis. Oct. 21, 2003) (remanding the ALJ's decision because it was based on errors, “foremost of which was a fundamental misunderstanding of the diagnosis and treatment of migraine headaches[ ]”); Diaz v. Barnhart, 2002 WL 32345945, *6 (E.D.Pa. Mar. 7, 2002) (stating that migraines “do not stem from a physical or chemical abnormality which can be detected by imaging techniques or laboratory tests, but are linked to disturbances in cranial blood flow [ ]”); Federman v. Chater, 1996 WL 107291, at *2, 1996 U.S. Dist. LEXIS 2893, at *6 (S.D.N.Y. Mar. 7, 1996) (noting that because there is no test for migraines, “ ‘when presented with documented allegations of symptoms which are entirely consistent with the symptomatology for evaluating the claimed disorder, the Secretary cannot rely on the ALJ's rejection of the claimant's testimony based on the mere absence of objective evidence[ ]’ ”). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Additionally, the POMS Example for migraines shows heavy reliance and 2 consideration of a plaintiff’s subjective complaints regarding his or her 3 headaches/migraines. See supra pp. 10-11. In the case at hand, the ALJ failed to 4 substantially consider Plaintiff’s subjective complaint testimony along with the 5 corroborating medical evidence in the record. 6 The ALJ owes a duty to claimants to fully and fairly develop the record. 7 Because the ALJ based her determination most prominently on the missing 8 detailed description of the headaches and lack of objective medical evidence, she 9 should have provided or allowed an appropriate cure for the inadequacy prior to 10 rendering her decision. Massanari,276 F.3d at 459–60; Tonapetyan, 242 F.3d at 11 1150. There are multiple avenues provided to ALJ’s to cure such inadequacies. See 12 20 C.F.R. § 404.1527(c)(3); see also 20 C.F.R. § 404.1519a. Namely, she could 13 have continued the hearing and called an expert to testify at the subsequent 14 hearing. At the very least, she could have notified Plaintiff that the record was 15 lacking and allowed Plaintiff an opportunity to cure the inadequacy. Id. 16 Without a detailed description of Plaintiff’s headaches/migraines, the ALJ 17 should have determined that the record was inadequate to allow for proper 18 evaluation of the evidence. Faced with similarly deficient analysis by ALJs, courts 19 have remanded for further administrative proceedings because the ALJ “is in a 20 better position to evaluate the medical evidence” than a district court. Santiago v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 Barnhart, 278 F. Supp. 2d 1049, 1058 (N.D. Cal. 2003); see also, e.g., Galaspi- 2 Bey v. Barnhart, No. C-01-01770-BZ, 2002 WL 31928500, at *3 (N.D. Cal. Dec. 3 23, 2002). 4 5 B. Remand is the Appropriate Remedy. The Court has the discretion to remand the case for additional evidence and 6 findings or to award benefits. Smolen, 80 F.3d at 1292. The Court may award 7 benefits if the record is fully developed and further administrative proceedings 8 would serve no useful purpose. Id. Remand is appropriate when additional 9 administrative proceedings could remedy defects. Rodriguez v. Bowen, 876 F.2d 10 759, 763 (9th Cir. 1989). In this case, the Court finds that further proceedings are 11 necessary for a proper determination to be made. Taylor v. Comm’r of Soc. Sec. 12 Admin., 659 F.3d 1228, 1235 (9th Cir. 2011) (“Remand for further proceedings is 13 appropriate where there are outstanding issues that must be resolved before a 14 disability determination can be made, and it is not clear from the record that the 15 ALJ would be required to find the claimant disabled if all the evidence were 16 properly evaluated.”). Further, Plaintiff’s request for an immediate award of 17 benefits is denied as further proceedings are necessary to develop the record. 18 Because the Court finds that the ALJ erred in her assessment at step three 19 and the error was not harmless, the Court need not address Plaintiff’s remaining 20 allegations of error. Instead, the Court remands. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 2 VIII. CONCLUSION Having reviewed the record and the ALJ’s findings, the Court finds the ALJ 3 erred by failing to fully and fairly develop the record. Accordingly, IT IS 4 ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is GRANTED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 7 3. The District Court Executive is directed to enter judgment in favor of 8 Plaintiff and against Defendant. 9 4. This matter is REMANDED to the Commissioner for further proceedings 10 consistent with this Order. 11 IT IS SO ORDERED. The District Court Executive is directed to enter this Order, 12 forward copies to counsel and close the file. 13 14 15 DATED this 1st day of April, 2019. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 16 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 17

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