Robeck v. Colvin, No. 1:2014cv03148 - Document 29 (E.D. Wash. 2016)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT GRANTING, in part ECF No. 15 and denying ECF NO. 21 Defendant's. Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

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1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON 4 5 KATE ROBECK, 6 Plaintiff, 7 10 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. 8 9 No. 1:14-CV-03148-JTR CAROLYN W. COLVIN, Commissioner of Social Security, 11 Defendant. 12 13 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 14 No. 15, 21. Attorney D. James Tree represents Kate Robeck (Plaintiff); Special 15 Assistant United States Attorney Franco L. Becia represents the Commissioner of 16 Social Security (Defendant). The parties have consented to proceed before a 17 magistrate judge. ECF No. 9. After reviewing the administrative record and the 18 briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s Motion for 19 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 20 REMANDS the matter to the Commissioner for additional proceedings pursuant to 21 42 U.S.C. § 405(g). 22 JURISDICTION 23 Plaintiff filed applications for Supplemental Security Income (SSI) and 24 Disability Insurance Benefits (DIB) on January 10, 2010,1 alleging disability since 25 November 1, 2008, due to bipolar II with mania, depression, and post-traumatic 26 27 28 1 The Disability Report from the Field Office notes a protective filing date of January 10, 2010. Tr. 262; See POMS GN 204.010. ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 1 stress disorder (PTSD). Tr. 231-236, 265. The applications were denied initially 2 and upon reconsideration. Tr. 140-143, 145-152, 159-180. Administrative Law 3 Judge (ALJ) Virginia M. Robinson held a hearing on January 14, 2013, at which 4 Plaintiff, represented by counsel, and vocational expert, Trevor Duncan, testified. 5 Tr. 42-83. The ALJ issued an unfavorable decision on February 1, 2013. Tr. 25- 6 35. The Appeals Council denied review on August 8, 2014. Tr. 1-6. The ALJ’s 7 February 1, 2013, decision became the final decision of the Commissioner, which 8 is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 9 action for judicial review on October 8, 2014. ECF No. 1, 4. 10 STATEMENT OF FACTS 11 The facts of the case are set forth in the administrative hearing transcript, the 12 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 13 here. 14 Plaintiff was twenty-seven years old at the alleged date of onset. Tr. 231. 15 Plaintiff completed the twelfth grade in 1999. Tr. 267. She has past work as a 16 cashier, busser, cocktail server, customer service representative, special events 17 coordinator, admissions representative, and auto paint repair specialist. Tr. 267, 18 292. Plaintiff reported she stopped working on November 1, 2008, because of her 19 condition. Tr. 266. 20 On November 3, 2010, Plaintiff was evaluated by Paul Emmans, D.O. Tr. 21 542-543. He opined that Plaintiff was limited to one to ten hours a week of work 22 activity and that this limitation was permanent. Id. On August 31, 2011, Dr. 23 Emmans provided a second opinion that Plaintiff was limited to one to ten hours a 24 week of work activity and that this limitation would persist for twelve to twenty- 25 four months. Tr. 539-540. On September 17, 2012, Dr. Emmans provided a third 26 opinion that Plaintiff was limited to one to ten hours a week of work stating that if 27 Plaintiff were able to have a consistent supply of medication then she does ok, but 28 without medication she quickly decompensates. Tr. 537. Dr. Emmans ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 2 characterized Plaintiff’s limitation as permanent. Tr. 538. On July 18, 2011, Jenifer Schultz, Ph.D., completed an Adult Memory 3 Assessment. Tr. 501-508. Dr. Schultz interview the Plaintiff, reviewed records 4 from Gabriela Mondragon, MSW, Dr. Emmans, and Kirk Stroshal, Ph.D., 5 completed a mental status examination, a Wechsler Memory Scale-III test, and the 6 Trails A and B test. Tr. 501-502. Dr. Schultz then opined that Plaintiff’s “ability 7 to understand and reason is poor currently. Her memory is extremely low except 8 for working memory, which is average. Her social interaction is limited to fellow 9 church members, but she receives support from them. Ms. Robeck’s ability to 10 tolerate or adapt to stress is poor.” Tr. 507. 11 On September 21, 2011, Beth Fitterer, Ph.D., reviewed the record and 12 opined that Plaintiff was capable of simple routine tasks, capable of adequate 13 concentration, persistence, and pace, should avoid the demands of the general 14 public, and was able to respond to routine workplace changes with a prolonged 15 period of adjustment. Tr. 132-135. 16 17 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 18 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 19 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 20 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 21 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 22 not supported by substantial evidence or if it is based on legal error. Tackett v. 23 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 24 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 25 another way, substantial evidence is such relevant evidence as a reasonable mind 26 might accept as adequate to support a conclusion. Richardson v. Perales, 402 27 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 28 interpretation, the court may not substitute its judgment for that of the ALJ. ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 2 evidence will be set aside if the proper legal standards were not applied in 3 weighing the evidence and making the decision. Brawner v. Secretary of Health 4 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 5 supports the administrative findings, or if conflicting evidence supports a finding 6 of either disability or non-disability, the ALJ’s determination is conclusive. 7 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 8 9 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 10 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 11 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 12 through four, the burden of proof rests upon the claimant to establish a prima facie 13 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 14 burden is met once a claimant establishes that physical or mental impairments 15 prevent her from engaging in her previous occupations. 20 C.F.R. §§ 16 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do her past relevant work, the 17 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 18 (1) the claimant can make an adjustment to other work, and (2) specific jobs exist 19 in the national economy which the claimant can perform. Batson v. Comm’r of 20 Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If the claimant cannot make 21 an adjustment to other work in the national economy, a finding of “disabled” is 22 made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 23 24 25 26 27 28 ADMINISTRATIVE DECISION On February 1, 2013, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since November 1, 2008, the alleged date of onset. Tr. 27. At step two, the ALJ determined Plaintiff had the following severe ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 impairments: depression, PTSD, and bipolar disorder. Tr. 28. 2 At step three, the ALJ found Plaintiff did not have an impairment or 3 combination of impairments that met or medically equaled the severity of a listed 4 impairment. Tr. 29. At step four, the ALJ assessed Plaintiff’s residual function capacity (RFC) 5 6 and determined she could perform a full range of light work with the following 7 additional limitations: “This individual is limited to simple tasks with simple 8 work-related decisions. She can only have occasional and superficial interaction 9 with public.” Tr. 30. The ALJ concluded that Plaintiff was not able to perform her 10 past relevant work, which included the occupations of cashier II and 11 waitress/cocktail server. Tr. 34. At step five, the ALJ considered Plaintiff’s age, education, work experience, 12 13 RFC, and the testimony of the vocational expert. The ALJ found there were other 14 jobs that exist in significant numbers in the national economy Plaintiff could 15 perform, including housekeeper/cleaner, production assembler, and hand packer. 16 Tr. 34-35. The ALJ thus concluded Plaintiff was not under a disability within the 17 meaning of the Social Security Act at any time from November 1, 2008, the 18 alleged date of onset, through February 1, 2013, the date of the ALJ’s decision. Tr. 19 35. 20 ISSUES The question presented is whether substantial evidence supports the ALJ’s 21 22 decision denying benefits and, if so, whether that decision is based on proper legal 23 standards. Plaintiff contends the ALJ erred by (1) failing to accord weight to the 24 opinions of treating and examining providers, and (2) failing to properly consider 25 Plaintiff’s testimony about the severity of her symptoms. 26 27 28 DISCUSSION A. Evaluation of Medical Evidence Plaintiff argues the ALJ failed to properly consider and weigh the medical ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 opinions of Paul Emmans, D.O., Gabriela Mondragon, MSW, Shane Anderson, 2 Pharm. D., Jenifer Schults, Ph.D., and Beth Fitterer, Ph.D. ECF No. 15 at 10-21. 3 In weighing medical source opinions, the ALJ should distinguish between 4 three different types of physicians: (1) treating physicians, who actually treat the 5 claimant; (2) examining physicians, who examine but do not treat the claimant; 6 and, (3) nonexamining physicians who neither treat nor examine the claimant. 7 Lester v Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 8 weight to the opinion of a treating physician than to the opinion of an examining 9 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). The ALJ should give 10 more weight to the opinion of an examining physician than to the opinion of a 11 nonexamining physician. Id. 12 When a treating physician’s opinion is not contradicted by another 13 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 14 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 15 physician’s opinion is contradicted by another physician, the ALJ is only required 16 to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. 17 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when an examining 18 physician’s opinion is not contradicted by another physician, the ALJ may reject 19 the opinion only for “clear and convincing” reasons. Lester, 81 F.2d at 830. When 20 an examining physician’s opinion is contradicted by another physician, the ALJ is 21 only required to provide “specific and legitimate reasons” for rejecting the opinion 22 of the examining physician. Id. at 830-831. 23 1. Paul Emmans, D.O. 24 The ALJ gave Dr. Emmans’ opinions “limited weight,” because (1) he did 25 not mention Plaintiff’s history of drug or alcohol abuse, and (2) he agreed that 26 Plaintiff’s symptoms were controlled with medication. Tr. 33. 27 28 First, the ALJ’s assertion that Dr. Emmans was not aware of Plaintiff’s drug use is not supported by substantial evidence. The report form the November 3, ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 2010, evaluation by Dr. Emmans specifically addressed Plaintiff’s history of drug 2 and alcohol use. Tr. 422. Furthermore, it is unclear what relevance a history of 3 drug use would have on Dr. Emmans’ opinions. Plaintiff consistently reported 4 abstaining from drug use since 2004 and there is no evidence showing that Plaintiff 5 was using drugs at the time of Dr. Emmans’ opinions. Tr. 61, 422, 501. 6 Likewise, Plaintiff reported that she had not drank alcohol since October 2011, and 7 the use prior to that was limited to an occasional drink, but not drinking to 8 intoxication. Tr. 62. Thus, the ALJ’s reason is not supported by substantial 9 evidence. 10 The ALJ’s second assertion that Plaintiff’s symptoms were controlled by 11 medication is not supported by substantial evidence. On October 22, 2012, 12 Plaintiff told Dr. Anderson that “I feel stable when I am on all my medications at 13 the same time.” Tr. 564. On November 19, 2012, Plaintiff stated that the addition 14 of Seroquel “was extremely helpful.” Tr. 601. Based on these statements, the ALJ 15 found that the “longitudinal record reflects that the claimant’s mental symptoms 16 could be adequately controlled by medication.” Tr. 32. A treating physician’s 17 statements “must be read in context of the overall diagnostic picture he draws. 18 That a person who suffers from severe panic attacks, anxiety, and depression 19 makes some improvement does not mean that the person’s impairments no longer 20 seriously affect her ability to function in a workplace.” Holohan v. Massanari, 246 21 F.3d 1195, 1205 (9th Cir. 2001). Considering the nature of Plaintiff’s mental 22 health impairments, these two statements made by Plaintiff within a month of each 23 other does not constitute a longitudinal record showing her symptoms were 24 controlled by medication. 25 26 Thus, the ALJ failed to provide specific and legitimate reasons supported by substantial evidence to reject Dr. Emmans’ opinions. 27 2. Jennifer Schultz, Ph.D. 28 The ALJ afforded “less weight” to the opinion of Dr. Schultz because (1) ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 Plaintiff had not accurately represented her functional activities to Dr. Schultz and 2 (2) Dr. Schultz considered the residual effects of Plaintiff’s long-term substance 3 use. Tr. 31. 4 The ALJ’s first reason for rejecting Dr. Schultz’s opinion, that Plaintiff had 5 not accurately represented her functional activities during the evaluation, is not a 6 specific and legitimate reason. The ALJ quoted Plaintiff’s reports to Dr. Schultz 7 that she relies on help from her children to complete housework and compared it to 8 Plaintiff’s reports on a Function Report stating that she could do light 9 housekeeping but did not mention assistance from her children. Tr. 31. The ALJ 10 found these statements inconsistent indicating that Dr. Schultz relied upon 11 claimant’s inaccurate statements in forming her opinion. Tr. 31. 12 If a provider’s opinions are based “to a large extent” on a claimant’s self- 13 reports and not on clinical evidence, and the ALJ finds the applicant not credible, 14 the ALJ may discount the provider’s opinion. Tommasetti v. Astrue, 533 F.3d 15 1035, 1041 (9th Cir. 2008); see also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th 16 Cir. 2005). However, the ALJ must offer a basis, supported by substantial 17 evidence, for her conclusion that a provider’s opinion was based more heavily on a 18 claimant’s self-reports. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). 19 Here, the decision is silent as to why the ALJ found that Dr. Schultz’s 20 opinion was based on Plaintiff’s inconsistent comments and not the objective 21 testing performed. Thus, this reason fails to meet the specific and legitimate 22 standard. 23 The ALJ’s second reason for rejecting Dr. Schultz’s opinion, that she 24 considered the residual effects of Plaintiff’s long-term substance use, is also not a 25 specific and legitimate reason to reject her opinion. The ALJ fails to illustrate why 26 Dr. Schultz’s consideration of the residual effect of Plaintiff’s past drug use would 27 cause her opinion to be given less weight. Tr. 31. Plaintiff challenges this 28 rationale in her opening brief asserting it does not meet the specific and legitimate ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 standard and Defendant fails to address this challenge in her briefing. ECF No. 15 2 at 18-19; ECF No. 21 at 19-20. Seeing no challenge, the Court agrees this fails to 3 meet the specific and legitimate standard. 4 3. Beth Fitterer, Ph.D. 5 In contrast to the opinions by Dr. Emmans and Dr. Schultz, the ALJ gave 6 “significant weight,” to the opinion of Dr. Fitterer. Tr. 33. Dr. Fitterer never 7 examined Plaintiff and based her opinion on evidence reviewed in the record as of 8 September 21, 2011. Tr. 126-135. The opinion of a nonexamining physician 9 cannot by itself constitute substantial evidence that justifies the rejection of the 10 opinion of either an examining physician or a treating physician. Pitzer v. 11 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 12 1456 (9th Cir. 1984). 13 Here, the ALJ found that Dr. Fitterer’s opinion was consistent with the 14 totality of the medical records, including Plaintiff’s self-reported activities and the 15 opinions of Dr. Lyzanchuk and Dr. Simon. Tr. 33. This conclusion is not 16 supported by substantial evidence. All of the opinions of examining or treating 17 providers in the record gave Plaintiff much greater limitations: on October 27, 18 2009, Dr. Lyzanchuk opined that Plaintiff was limited to eleven to twenty hours of 19 work a week and that the limitation would last months, Tr. 548-549; on November 20 19, 2009, Ms. Mondragon opined that Plaintiff was limited to working eleven to 21 twenty hours a week and that these limitations would last eight to ten months, Tr. 22 546-547; on March 4, 2010, Dr. Simon limited Plaintiff to working eleven to 23 twenty hours a week adding that he expected the limitation to last three to six 24 months, Tr. 544-545; on November 3, 2010, Dr. Emmans limited Plaintiff to 25 working one to ten hours a week and that this limitation was permanent, Tr. 542- 26 543; on July 18, 2011, Dr. Schultz opined that Plaintiff’s “ability to understand and 27 reason is poor currently. Her memory is extremely low except for working 28 memory, which is average. Her social interaction is limited to fellow church ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 members, but she receives support from them. Ms. Robeck’s ability to tolerate or 2 adapt to stress is poor,” Tr. 507; on August 31, 2011, Dr. Emmans opined that 3 Plaintiff was limited to working one to ten hours a week and that this limitation 4 would persist for twelve to twenty-four months, Tr. 539-540; on September 17, 5 2012, Dr. Emmans opined that Plaintiff was limited to working one to ten hours a 6 week and that this limitation was permanent, Tr. 537-538; and on September 28, 7 2012, Ms. Mondragon opined that Plaintiff was limited to working one to ten hours 8 a week and that the limitation would last for twelve months. Tr. 533-535. 9 Therefore, Dr. Fitterer’s opinion that Plaintiff is capable of sustaining work activity 10 11 is not consistent with the record as a whole. The ALJ found Dr. Fitterer’s opinion that Plaintiff was capable of sustaining 12 work activity was consistent with the opinions of Dr. Lyanchuk and Dr. Simon 13 because they did not opine that Plaintiff’s limitations would be permanent. Tr. 33. 14 But, Social Security does not require that limitations be permanent. See 42 U.S.C. 15 §§ 423(d)(1)(A), 1382c(a)(3)(A) (an individual shall be considered disabled if she 16 has an impairment which can be expected to result in death or which has lasted or 17 can be expected to last for a continuous period of not less than 12 months). The 18 Court recognizes that Dr. Lyanchuk and Dr. Simon both opined that Plaintiff’s 19 limitations would be short term, but subsequent opinions form Dr. Emmans and 20 Ms. Mondragon supports the conclusion that her limitations persisted beyond the 21 prescribed time. Therefore, Dr. Fitterer’s opinion is not consistent with the 22 opinions of treating or examining providers or the record as a whole and does not 23 constitute substantial evidence to support the rejection of Plaintiff’s treating and 24 examining providers. 25 The ALJ’s rejection of Dr. Emmans’ and Dr. Schultz’s opinions constitutes 26 harmful error and the case must be remanded. Upon remand, the ALJ will 27 reconsider all opinions of all treating and examining providers, including Dr. 28 Anderson and Ms. Mondragon. ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 2 3 B. Credibility Plaintiff contests the ALJ’s adverse credibility determination in this case. ECF No. 15 at 21-24. 4 It is generally the province of the ALJ to make credibility determinations, 5 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 6 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 7 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 8 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 9 1273, 1281 (9th Cir. 1996); Lester, 81 F.3d at 834. “General findings are 10 insufficient: rather the ALJ must identify what testimony is not credible and what 11 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834. 12 The ALJ found Plaintiff not fully credible concerning the intensity, 13 persistence, and limiting effects of her symptoms. Tr. 30-31. The ALJ reasoned 14 that Plaintiff was less than fully credible because (1) she had a poor work history, 15 and (2) her self-reported activities indicated that she was capable of “light” 16 exertional work. Tr. 31. 17 1. Poor Work History 18 The ALJ noted that for twelve years before the alleged date of onset, 19 Plaintiff’s earnings never reached substantial gainful activity, except for 2007. Tr. 20 31. Therefore, the ALJ found Plaintiff’s poor earnings years showed that reasons 21 other than medical conditions were preventing work. Id. Poor work history can 22 provide a permissible reason to cast doubt on Plaintiff’s purported reason for 23 unemployment. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 24 Plaintiff offers alternative explanations for Plaintiff’s limited work history, 25 including a history of mental illness and drug use and alludes to the argument that 26 a lack of motivation is a symptom of Plaintiff’s mental illness. ECF No. 15 at 21- 27 22. While these other explanations may be reasonable if supported by substantial 28 evidence, Plaintiff failed to cite any evidence in the record supporting the ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 conclusion that Plaintiff’s limited work history was due to her mental illness 2 manifesting prior to the alleged date of onset or her history of drug use. Id. The 3 ALJ’s interpretation of Plaintiff’s limited work history as a lack of motivation to 4 work is reasonable. See Tackett, 180 F.3d at 1097 (if the evidence is susceptible to 5 more than one rational interpretation, the court may not substitute its judgment for 6 that of the ALJ). Therefore, this reason meets the specific, clear and convincing 7 standard. 8 2. Self-Reported Activities 9 The ALJ’s second reason for finding Plaintiff less than fully credible, that 10 Plaintiff’s “domestic activities” supports a conclusion that she is capable of 11 performing “light” work, Tr. 31, is not a specific, clear and convincing reason to 12 find Plaintiff less than fully credible. 13 A claimant’s daily activities may support an adverse credibility finding if (1) 14 the claimant’s activities contradict her other testimony, or (2) “the claimant is able 15 to spend a substantial part of [her] day engaged in pursuits involving performance 16 of physical functions that are transferable to a work setting.” Orn, 495 F.3d at 639 17 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “The ALJ must make 18 ‘specific findings relating to [the daily] activities’ and their transferability to 19 conclude that a claimant’s daily activities warrant an adverse credibility 20 determination.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 21 2005)). A claimant need not be “utterly incapacitated” to be eligible for benefits. 22 Fair, 885 F.2d at 603. 23 The ALJ noted that Plaintiff reported caring for her two children by helping 24 them with homework and getting them ready for school, caring for two pets by 25 cleaning the litter box, preparing simple meals daily for up to two hours, doing 26 light housekeeping for hours of time, driving a car, shopping at a store twice a 27 month, having family visit her at home, being able to sit for long periods of time, 28 and helping the volunteers from church revamp her mobile home. Tr. 31. The ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 ALJ found that these activities supported the conclusion that Plaintiff was capable 2 of a “light” residual functional capacity determination. Id. 3 The ALJ was required to make a determination as to the transferability of 4 these activities to the workplace under Orn. The ALJ failed to make such a 5 determination. Id. Therefore, this is not a specific, clear and convincing reason to 6 find Plaintiff less than fully credible. See Fair v. Bowen, 885 F.2d 597, 603 (9th 7 Cir. 1989) (“many home activities are not easily transferable to what may be the 8 more grueling environment of the workplace, where it might be impossible to 9 periodically rest or take medication”). 10 Additionally, the ALJ found that Plaintiff’s organized religious activities 11 were inconsistent with Plaintiff’s alleged “severe psychological limitations.” Tr. 12 31. This is not a specific, clear and convincing reason to discount credibility, 13 because it does not identify what activities impeach which of Plaintiff’s statements. 14 See Lester, 81 F.3d at 834 (“the ALJ must identify what testimony is not credible 15 and what evidence undermines the claimant’s complaints”). 16 Defendant alleges that the ALJ provided several additional reasons 17 supporting her adverse credibility determination including that Plaintiff’s 18 statements were inconsistent with the record as a whole, that Plaintiff made 19 inconsistent statements throughout the record, and Plaintiff was non-compliant 20 with treatment. ECF No. 21 at 9-15. These reasons are not clearly addressed as 21 part of the credibility determination made by the ALJ, but are dispersed throughout 22 the discussion of the opinion evidence. Tr. 31-32. Considering the ALJ’s lack of 23 clarity and that the case is being remanded on other issues, the ALJ is instructed to 24 readdress credibility on remand. 25 REMEDY 26 The decision whether to remand for further proceedings or reverse and 27 award benefits is within the discretion of the district court. McAllister v. Sullivan, 28 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 where “no useful purpose would be served by further administrative proceedings, 2 or where the record has been thoroughly developed,” Varney v. Secretary of Health 3 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 4 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 5 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 6 (noting that a district court may abuse its discretion not to remand for benefits 7 when all of these conditions are met). This policy is based on the “need to 8 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 9 outstanding issues that must be resolved before a determination can be made, and it 10 is not clear from the record that the ALJ would be required to find a claimant 11 disabled if all the evidence were properly evaluated, remand is appropriate. See 12 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 13 F.3d 1172, 1179-80 (9th Cir. 2000). 14 In this case, it is not clear from the record that the ALJ would be required to 15 find Plaintiff disabled if all the evidence were properly evaluated. Further 16 proceedings are necessary for the ALJ to weight the opinions of treating and 17 examining medical providers and determine Plaintiff’s credibility regarding her 18 symptom reporting. In addition, the ALJ will also need to supplement the record, 19 reconsider the medical evidence and take testimony from a medical expert and a 20 vocational exert at a new hearing. 21 CONCLUSION 22 Accordingly, IT IS ORDERED: 23 1. 24 25 Defendant’s Motion for Summary Judgment, ECF No. 21, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is 26 GRANTED, in part, and the matter is REMANDED to the Commissioner for 27 additional proceedings consistent with this Order. 28 3. Application for attorney fees may be filed by separate motion. ORDER GRANTING PLAINTIFF’S MOTION . . . - 14 1 The District Court Executive is directed to file this Order and provide a copy 2 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 3 and the file shall be CLOSED. 4 DATED March 7, 2016. 5 6 7 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 15

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