Mendez v. Colvin, No. 1:2015cv03107 - Document 28 (E.D. Wash. 2016)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 20 ) AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 22 ). FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (PH, Case Administrator)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 AIMEE RACQUEL MENDEZ, No. 1:15-CV-3107-MKD 8 10 CAROLYN W. COLVIN, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Acting Commissioner of Social Security, ECF Nos. 20, 22 Plaintiff, 9 vs. 12 Defendant. BEFORE THE COURT are the parties’ cross-motions for summary 13 14 judgment. ECF Nos. 20, 22. The parties consented to proceed before a magistrate 15 judge. ECF No. 7. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 grants Plaintiff’s motion (ECF No. 20) and denies Defendant’s motion (ECF No. 18 22). 19 20 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 3 1383(c)(3). 4 5 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited; the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 10 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 11 (quotation and citation omitted). Stated differently, substantial evidence equates to 12 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 13 citation omitted). In determining whether the standard has been satisfied, a 14 reviewing court must consider the entire record as a whole rather than searching 15 for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. If the evidence in the record “is 18 susceptible to more than one rational interpretation, [the court] must uphold the 19 ALJ’s findings if they are supported by inferences reasonably drawn from the 20 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 3 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 4 party appealing the ALJ’s decision generally bears the burden of establishing that 5 it was harmed. Shineski v. Sanders, 556 U.S. 396, 409-410 (2009). 6 7 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 13 impairment must be “of such severity that he is not only unable to do his previous 14 work[,] but cannot, considering his age, education, and work experience, engage in 15 any other kind of substantial gainful work which exists in the national economy.” 16 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 19 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner 20 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 2 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 3 404.1520(b); 416.920(b). 4 If the claimant is not engaged in substantial gainful activity, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 7 claimant suffers from “any impairment or combination of impairments which 8 significantly limits [his or her] physical or mental ability to do basic work 9 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 10 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 11 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 12 §§ 404.1520(c); 416.920(c). 13 At step three, the Commissioner compares the claimant’s impairment to 14 severe impairments recognized by the Commissioner to be so severe as to preclude 15 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 16 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 17 severe than one of the enumerated impairments, the Commissioner must find the 18 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 19 If the severity of the claimant’s impairment does not meet or exceed the 20 severity of the enumerated impairments, the Commissioner must pause to assess 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 4 404.1545(a)(1); 416.945(a)(1), is relevant to both the fourth and fifth steps of the 5 analysis. At step four, the Commissioner considers whether, in view of the claimant’s 6 7 RFC, the claimant is capable of performing work that he or she has performed in 8 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 9 If the claimant is capable of performing past relevant work, the Commissioner 10 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f). 11 If the claimant is incapable of performing such work, the analysis proceeds to step 12 five. 13 At step five, the Commissioner considers whether, in view of the claimant’s 14 RFC, the claimant is capable of performing other work in the national economy. 15 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 16 the Commissioner must also consider vocational factors such as the claimant’s age, 17 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v); 18 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 19 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 20 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 work, analysis concludes with a finding that the claimant is disabled and is 2 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). 3 The claimant bears the burden of proof at steps one through four above. 4 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 5 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 6 capable of performing other work; and (2) such work “exists in significant 7 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.920(c)(2); 8 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 9 ALJ’S DECISION 10 Plaintiff applied for Title II disability insurance benefits and Title XVI 11 supplemental security income on May 14, 2006, alleging onset beginning March 12 15, 2004. Tr. 354, 102-110. The applications were denied initially, Tr. 354, 66-72, 13 and upon reconsideration, Tr. 354, 76-81. Plaintiff appeared for a hearing before 14 an administrative law judge (ALJ) on May 28, 2009. Tr. 32-61. At the hearing, 15 Plaintiff requested a closed period of disability beginning March 15, 2004 and 16 ending May 2, 2008, because she had returned to work. Tr. 354. ALJ Gaughen 17 denied Plaintiff’s applications on June 25, 2009. Tr. 14-31. 18 The Appeals Council declined review and Plaintiff appealed. Tr. 354. The 19 District Court found that the ALJ erred in his analysis of Plaintiff’s physical 20 impairments at step-three and with his analyses of impartial medical expert, 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 Anthony Francis, M.D., and treating physician, Michael Jach, M.D. Tr. 455-466. 2 The Court remanded the case for further proceedings. Tr. 469-470. 3 Upon remand, ALJ Valente held a hearing on February 10, 2015, where 4 Plaintiff and an impartial vocational expert testified. Tr. 382-427. At the hearing, 5 Plaintiff’s attorney requested he be allowed to contact Dr. Francis, the impartial 6 medical expert at the 2009 hearing, to clarify parts of his testimony. Tr. 355, 384. 7 ALJ Valente took this request under advisement, and subsequently denied 8 Plaintiff’s request. Tr. 355. On April 24, 2015, ALJ Valente denied Plaintiff’s 9 claim. Tr. 354-367. 10 As a threshold matter, ALJ Valente found Plaintiff met the insured status 11 requirement through March 31, 2009. Tr. 357. At step one, ALJ Valente found 12 Plaintiff had not engaged in substantial gainful activity during the relevant period, 13 from March 2004 to May 2008. Tr. 357. At step two, the ALJ found Plaintiff had 14 the following severe impairments: right-knee degenerative joint disease, gastro15 esophageal reflux disease (GERD), and obesity. Id. At step three, the ALJ found 16 that Plaintiff did not have an impairment or combination of impairments that met 17 or medically equaled a listed impairment. Tr. 358. The ALJ then concluded that 18 the Plaintiff had the RFC to perform light work, with the following additional 19 limitations: 20 The claimant could lift and carry twenty pounds occasionally and ten pounds frequently and could stand and walk for two hours at a time with usual and 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 22 1 2 3 4 customary breaks for five hours total out of an eight-hour workday. She could sit one hour at a time after which she needed to stand for a few minutes but not away from the workstation, and could work in the standing position, and then could resume sitting and continue this sit/stand activity for eight hours total in an eight-hour workday. The claimant could occasionally climb, stoop, kneel, and crouch, but could not crawl, and needed to avoid concentrated exposure to extreme cold. 5 Tr. 356-360. 6 At step four, the ALJ found Plaintiff could not perform any past relevant 7 work. Tr. 365. At step-five, the ALJ found that, considering Plaintiff’s age, 8 education, work experience, and RFC, there were jobs in significant numbers in the 9 national economy that Plaintiff could have performed, such as storage-facility 10 rental clerk and furniture rental consultant. Tr. 367. On that basis, the ALJ 11 concluded that Plaintiff was not disabled as defined in the Social Security Act from 12 March 15, 2004 through the date of the decision, April 24, 2015. Tr. 367. 13 The Appeals Council did not assume jurisdiction of the case, making ALJ 14 Valente’s decision the Commissioner’s final decision for purposes of judicial 15 review. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. § 416.1484. 16 17 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 18 her disability insurance benefits under Title II and supplemental security income 19 under Title XVI of the Social Security Act. ECF No. 20. Plaintiff raises the 20 following issues for this Court’s review: 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 1. Whether the ALJ properly discredited Plaintiff’s symptom claims; 2 2. Whether the ALJ fulfilled the duty to develop the record; and 3 3. Whether the ALJ properly weighed the medical opinion evidence. 4 ECF No. 20 at 7. 5 6 7 DISCUSSION A. Adverse Credibility Finding Plaintiff contends the ALJ failed to provide specific findings with clear and 8 convincing reasons for discrediting her symptom claims. ECF No. 20 at 7-12. 9 An ALJ engages in a two-step analysis to determine whether a claimant’s 10 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 11 determine whether there is objective medical evidence of an underlying 12 impairment which could reasonably be expected to produce the pain or other 13 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 14 “The claimant is not required to show that her impairment could reasonably be 15 expected to cause the severity of the symptom she has alleged; she need only show 16 that it could reasonably have caused some degree of the symptom.” Vasquez v. 17 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 18 Second, “[i]f the claimant meets the first test and there is no evidence of 19 malingering, the ALJ can only reject the claimant’s testimony about the severity of 20 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 2 citations and quotations omitted). “General findings are insufficient; rather, the 3 ALJ must identify what testimony is not credible and what evidence undermines 4 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 5 Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ 6 must make a credibility determination with findings sufficiently specific to permit 7 the court to conclude that the ALJ did not arbitrarily discredit claimant’s 8 testimony.”). “The clear and convincing [evidence] standard is the most 9 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 10 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 11 924 (9th Cir. 2002)). 12 In making an adverse credibility determination, the ALJ may consider, inter 13 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 14 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 15 daily living activities; (4) the claimant’s work record; and (5) testimony from 16 physicians or third parties concerning the nature, severity, and effect of the 17 claimant’s condition. Thomas, 278 F.3d at 958-59. 18 Plaintiff testified in 2009 that during the relevant period she was having pain 19 in her back, knees, and legs, at times causing her legs to go numb. Tr. 47-49. 20 Throughout the day, she had to prop her legs up above her heart for 15 to 20 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 minutes. Tr. 49. She testified that she could not stand for more than two to three 2 hours in a day and did not believe she could work even a sedentary job. Tr. 49-50. 3 At night, she testified that she woke to burning in her legs. Tr. 49. 4 At the 2015 hearing, Plaintiff testified that during the relevant period, she 5 experienced severe problems with her right knee, including aching and swelling. 6 Tr. 385-386. She testified that she could not walk for more than a few minutes 7 without limping and that “a couple times” she used a cane she borrowed from 8 someone else. Tr. 386-87, 398-399. 9 This Court finds the ALJ provided specific, clear, and convincing reasons 10 for finding that Plaintiff’s statements concerning the intensity, persistence, and 11 limiting effects of her symptoms “are not entirely credible.” Tr. 360. 12 1. 13 The ALJ found that Plaintiff’s ability to return to work despite not receiving Ability to Work without Medical Treatment 14 any significant treatment or improvement in her knee condition undermined her 15 allegations of severely limiting knee paid during the relevant period. Tr. 361. The 16 ALJ reviewed the medical record and noted there is no indication that Plaintiff’s 17 knee condition changed significantly prior to her returning to work. At the 2015 18 hearing, the vocational expert indicated that flagger work is generally performed at 19 the light exertional level, indicating that this work would require standing and/or 20 walking throughout much of the workday. Tr. 361, 415. Plaintiff acknowledged 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 she had no additional treatment for her knee since 2008 and only took Tylenol for 2 her pain. Tr. 361. Plaintiff’s subsequent ability to participate in light exertional 3 work, despite no explanation of medical improvement undermined the credibility 4 of her symptom claims during the relevant period. Plaintiff did not challenge this 5 basis for the credibility finding, thus, the argument is waived. See Bray v. Comm’r 6 of Soc. Sec. Admin., 554 F.3d 1219, 1226 n. 7 (9th Cir. 2009). This was a clear and 7 convincing reason, supported by substantial evidence to discredit her symptom 8 claims. 9 10 2. Minimal and Conservative Treatment Sought The ALJ found the degree of limitation Plaintiff alleged to be inconsistent 11 with the minimal treatment she sought for her knee. Tr. 361-362. The medical 12 treatment a Plaintiff seeks to relieve her symptoms is a relevant factor in evaluating 13 the intensity and persistence of symptoms. 20 C.F.R. §§ 416.929(c)(3)(iv), (v). 14 “[I]n assessing a claimant’s credibility, the ALJ may properly rely on ‘unexplained 15 or inadequately explained failure to seek treatment or to follow a prescribed course 16 of treatment.’ ” Molina, 674 F.3d at 1113 (quoting Tommasetti v. Astrue, 533 F.3d 17 1035, 1039 (9th Cir. 2008)). 18 The ALJ noted that despite the severe symptoms Plaintiff alleged began in 19 2004, she rarely complained of knee pain during appointments with her primary 20 care provider during the relevant period. Tr. 361 (citing in a table Tr. 164, 166, 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 168, 175, 177, 179, 180, 182, 185, 231, 242, 244, 246, 249, 261, 283, 301, 303, 2 305). The majority of the medical record, the ALJ observed, relates to medication 3 refills. Tr. 19 (citing, e.g., Tr. 299-319, 354-367). The ALJ found Plaintiff’s 4 minimal treatment inconsistent with her symptom claims and, therefore, 5 undermined her credibility. Tr. 361-362. 6 At the outset, Plaintiff faults the ALJ for failing to specify what claims were 7 inconsistent with her treatment. ECF No. 20 at 7-9. A finding that a claimant’s 8 testimony is not credible “must be sufficiently specific to allow a reviewing court 9 to conclude the adjudicator rejected the claimant’s testimony on permissible 10 grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.” 11 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (internal citations and 12 quotations omitted). Here, the ALJ indicated she found Plaintiff’s symptom claims 13 regarding her knee pain lacked credibility because of the minimal treatment she 14 sought. Tr. 361-362. The ALJ’s reasoning was sufficiently specific to allow this 15 Court to review it. 16 Next, Plaintiff challenges the ALJ’s finding because Plaintiff offered 17 explanations for not seeking certain treatments and the ALJ failed to address or 18 reject those explanations in the decision. ECF No. 20 at 8-9. Minimal treatment 19 can undermine allegations of debilitating pain, but “such fact is not a proper basis 20 for rejecting the claimant’s credibility where the claimant has a good reason for not 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 seeking more aggressive treatment.” Carmickle v. Comm’r of Soc. Sec. Admin., 2 533 F.3d 1155, 1162 (9th Cir. 2008). For example, an ALJ may not reject a 3 claimant’s testimony because a lack of funds prevented her from seeking 4 treatment. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007); see also Regennitter 5 v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999); Gamble 6 v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). Plaintiff testified that she did not seek 7 treatment, like physical therapy, during this period because she could not afford it 8 and her insurance did not cover it. ECF No. 20 at 8-9 (citing Tr. 231, 249, 391); 9 ECF No. 25 at 3. 10 The Commissioner attempts to undermine Plaintiff’s contention by noting 11 that she did not seek treatment for her knee even when she had insurance. ECF 12 No. 22 at 7 (citing Tr. 231, 252, 301, 303, 305, 316, 323, 337, 340, 347). This 13 Court “may not affirm an ALJ on a ground upon which [s]he did not rely.” Orn, 14 495 F.3d at 630. Plaintiff counters that when she regained insurance coverage, 15 surgery was ruled out because she was too young, and she could not receive an 16 injection because of her fear of needles. Tr. 49, 173. The ALJ may well have had 17 legitimate reasons to reject Plaintiff’s explanations, but ALJ did not do so. Here, 18 the ALJ failed to consider or reject any of Plaintiff’s explanations for failing to 19 seek additional treatment. See Molina, 674 F.3d at 1113 (ALJ may rely on failure 20 to seek treatment or follow prescribed course of treatment when claimant’s failure 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 is “unexplained or inadequately explained.”). Accordingly, this Court finds ALJ 2 Valente’s reasoning is not clear and convincing. The error is harmless because the 3 ALJ offered other legally sufficient reasons to discredit Plaintiff’s symptom 4 claims. See Carmickle, 533 F.3d at 1162. 5 3. 6 The ALJ found that Plaintiff engaged in daily activities inconsistent with her Inconsistent Daily Activities 7 allegations of severely limiting symptoms. Tr. 362. A claimant’s reported daily 8 activities can form the basis for an adverse credibility determination if they consist 9 of activities that contradict the claimant’s “other testimony” or if those activities 10 are transferable to a work setting. Orn, 495 F.3d at 639; see also Fair v. Bowen, 11 885 F.2d 597, 603 (9th Cir. 1989) (daily activities may be grounds for an adverse 12 credibility finding “if a claimant is able to spend a substantial part of his day 13 engaged in pursuits involving the performance of physical functions that are 14 transferable to a work setting.”). “While a claimant need not vegetate in a dark 15 room in order to be eligible for benefits, the ALJ may discredit a claimant’s 16 testimony when the claimant reports participation in everyday activities indicating 17 capacities that are transferable to a work setting” or when activities “contradict 18 claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112-13 (internal 19 quotation marks and citations omitted). 20 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 Plaintiff testified that during the relevant period she cared for her child by 2 herself until she married in July 2005. Tr. 395-396. Before and after her marriage, 3 she testified that she performed her own housekeeping and cooking and drove 4 when her knee did not hurt. Tr. 396. Plaintiff reported caring for herself, shopping 5 independently, planning and preparing meals, and performing “a full range of 6 house cleaning and laundry.” Tr. 204. For three to six months during the relevant 7 period, Plaintiff also reported attending Alcoholics Anonymous (AA) meetings 8 twice a week without an absence. Tr. 401. The ALJ also noted that Plaintiff was 9 involved in family court proceedings, which required her to attend court hearings, 10 treatment sessions, and supervised visits throughout 2006. Tr. 362. Plaintiff 11 testified she was able to comply with the various requirements and appointments 12 required. Tr. 362. The ALJ found Plaintiff’s daily activities, in particular her 13 ability to care for a small child and attend court-ordered treatment and meetings 14 without an absence, were inconsistent with the severe limitations she alleged, such 15 as she would miss several days of work per month. Tr. 362. 16 With respect to the AA meetings, Plaintiff contends her attendance at these 17 meetings twice a week is fully consistent with her testimony. ECF No. 20 at 9-10. 18 Plaintiff urges this Court to consider the level of her activity in determining 19 whether her AA meetings were inconsistent with her testimony. Id. (citing 20 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Only if the level of activity 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 were inconsistent with Claimant’s claimed limitations would these activities have 2 any bearing on Claimant’s credibility.”). Plaintiff’s ability to meet these various 3 treatment and court-ordered obligations without absence, in addition to her other 4 daily activities, is inconsistent with her claims of disabling mobility issues, that she 5 contended would require her to miss several days of work a month. 6 Plaintiff contends the ALJ failed to explain how any of her daily activities 7 were transferable to a work setting or expressly contradicted her testimony. ECF 8 No. 20 at 9-10. Here, the ALJ explained that her ability to complete all her 9 activities of daily living, including her ability to care for a small child by herself, 10 was inconsistent with the debilitating symptoms she alleged. Tr. 362; see Rollins 11 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (Plaintiff’s ability to care for 12 young children without help undermined claims of totally disabling pain). 13 While evidence of Plaintiff’s daily activities may be interpreted more 14 favorably to the Plaintiff, the evidence is susceptible to more than one rational 15 interpretation, and therefore the ALJ’s finding must be upheld. See Burch v. 16 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 17 4. 18 Initially, the ALJ set out, in detail, the medical evidence regarding Plaintiff’s Lack of Objective Medical Evidence 19 knee impairment, and ultimately concluded that “the minimal and mild physical 20 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 1 examinations and findings found throughout the record” do not support the 2 Plaintiff’s claims of severely limiting pain. Tr. 362. An ALJ may not discredit a claimant’s pain testimony and deny benefits 3 4 solely because the degree of pain alleged is not supported by objective medical 5 evidence. Rollins, 261 F.3d at 857; Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th 6 Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). However, the 7 medical evidence is a relevant factor in determining the severity of a claimant’s 8 pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 9 404.1529(c)(2), 416.929(c)(2); see also S.S.R. 96-7p. 1 Minimal objective 10 evidence is a factor which may be relied upon in discrediting a claimant’s 11 testimony, although it may not be the only factor. See Burch, 400 F.3d at 680. 12 While Plaintiff alleged debilitating knee pain, the ALJ observed that findings 13 from physical examinations were mild and the objective evidence supporting 14 Plaintiff’s symptom claims minimal. Tr. 362. In October 2004, when Plaintiff 15 16 1 S.S.R. 96-7p was superseded by S.S.R. 16-3p effective March 16, 2016. The new 17 ruling also provides that the consistency of a claimant’s statements with objective 18 medical evidence and other evidence is a factor in evaluating a claimant’s 19 symptoms. S.S.R. 16-3p at *6. Nonetheless, S.S.R. 16-3p was not effective at the 20 time of the ALJ’s decision and therefore does not apply in this case. 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 1 first complained of “intermittent right knee pain,” treating physician Dr. Jach noted 2 that she exhibited “a little bit of discomfort,” but normal range of motion, and he 3 detected no obvious swelling. Tr. 185. In 2006, Plaintiff was referred to 4 orthopedic specialist, Raymond Snyder, M.D. Tr. 174-176. Dr. Snyder found 5 Plaintiff exhibited normal range of motion and 110 degrees of comfortable knee 6 flexion, with mild swelling and crepitation. Tr. 175. Upon examining x-rays from 7 2004, Dr. Snyder found some degenerative changes, but “[o]verall, the 8 degenerative changes are not as extensive.” Tr. 176. Dr. Snyder recommended 9 Plaintiff receive an MRI of her right knee and discussed the possibility for a 10 cortisone injection – an injection Plaintiff later refused because of her fear of 11 needles. Tr. 176, 173. Dr. Jach saw Plaintiff in April 2006 and found “no obvious 12 effusion or swelling.” Tr. 164. While there was some tenderness along the medial 13 joint line of the right knee, Plaintiff exhibited normal range of motion. Tr. 164. 14 Her Lachman’s, anterior and posterior Drawer’s, and McMurray testing were all 15 negative. Tr. 164. When Plaintiff saw Fady Sabry, M.D., in August and October 16 2007 for her GERD, Dr. Sabry noted that Plaintiff exhibited full range of motion, 17 normal strength, and her gait was stable. Tr. 315, 322. ALJ Valente noted that 18 during many other physical examinations, Plaintiff did not complain of any 19 problems with her knee and routinely appeared at said appointments in no acute 20 distress. Tr. 363 (citing Tr. 242, 244, 246, 249, 261, 301, 308, 337). 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 19 1 The ALJ found the observations of normal gait and balance inconsistent with 2 Plaintiff’s allegations of severely limiting knee pain. Tr. 363. While Plaintiff 3 alleged she could not walk for more than a few minutes without severe pain and 4 developing a limp, her treating providers routinely observed her exhibiting stable 5 and normal gait and balance on physical examination. Tr. 363 (citing Tr. 279, 308, 6 316, 323). 7 Plaintiff contends there is no contradiction in the medical record because she 8 testified that she only limps after walking for a few minutes and she never walked 9 for more than a few minutes at appointments with her treatment providers. ECF 10 No. 20 at 11 (citing Tr. 399). While the medical evidence may be interpreted more 11 favorably to the Plaintiff, the evidence is susceptible to more than one rational 12 interpretation, and therefore the ALJ’s finding must be upheld. See Burch, 400 13 F.3d at 679. 14 15 B. Developing the Record Plaintiff contends the ALJ failed to fully develop the record when the ALJ 16 refused to permit Plaintiff to seek clarification from Dr. Francis regarding his 17 medical opinions. ECF No. 20 at 17-20. 18 The gathering and presentation of medical evidence is critical to the fair and 19 effective operation of the system for distributing social security benefits based on 20 disability. Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001). Although the 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 20 1 claimant bears the burden of demonstrating disability, Bowen v. Yuckert, 482 U.S. 2 137, 146 n.5 (1987), the ALJ has a duty “to investigate the facts and develop the 3 arguments both for and against granting benefits . . . .” Sims v. Apfel, 530 U.S. 4 103, 110-11 (2000). This duty, known as the ALJ’s duty to develop the record, 5 requires ALJs to “scrupulously and conscientiously probe into, inquire of, and 6 explore for all the relevant facts.” Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 7 1992) (quotations omitted). 8 “The ALJ may discharge this duty in several ways, including: subpoenaing the 9 claimant’s physicians, submitting questions to the claimant’s physicians, 10 continuing the hearing, or keeping the record open after the hearing to allow 11 supplementation of the record.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th 12 Cir. 2001) (citations omitted). An ALJ possesses broad latitude in discharging her 13 duty. Reed, 270 F.3d at 842. However, “[a]n ALJ’s duty to develop the record 14 further is triggered only when there is ambiguous evidence or when the record is 15 inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari, 16 276 F.3d 453, 459-60 (9th Cir. 2001). 17 At the 2015 hearing, Plaintiff noted that the case was remanded for the ALJ 18 to reconsider Dr. Francis’ testimony. Tr. 384. Plaintiff’s counsel explained to the 19 ALJ that, at the prior hearing, Dr. Francis testified that Plaintiff equaled Listing 20 1.05 and would miss three days of work per month. Tr. 384. Plaintiff’s counsel 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 21 1 requested he be “allowed to contact Dr. Francis, and get a clarifying statement 2 from him” and further requested that Dr. Francis be allowed to review the records 3 and transcript from the first hearing, if ALJ Valente questioned Dr. Francis’ 4 testimony. Tr. 384. ALJ Valente took the request under advisement at the hearing. 5 Tr. 384. 6 In her decision, ALJ Valente rejected Plaintiff’s request to recontact Dr. 7 Francis, and “determined clarification is not necessary. Dr. Francis’ testimony is 8 unequivocal about rest breaks and absences, and does not suffer from lack of 9 clarity but, rather, a lack of support as discussed below.” Tr. 355. The ALJ then 10 discredited Dr. Francis’ decision, contending that Dr. Francis’s opinions contained 11 provisional statements, that the basis for the opinions were unclear, and the 12 opinions were unsupported. Tr. 364-364. For example, the ALJ stated: 13 14 15 Dr. Francis suggested the fact Dr. Snyder was willing to perform an injection on the claimant’s knee indicated ‘a certain level of severity’ and that he did not think it would be ‘unreasonable to say she would have met or equaled [listing] 1.02A. Dr. Francis does not further explain the basis for this assertion, and never addressed the claimant’s ability to ambulate effectively, which is the explicit basis for Listing 1.02A. 16 Tr. 364. 17 In this matter, Dr. Francis’ opinion was uncontradicted. The District Court 18 has previously remanded this matter based in part on the ALJ’s error in assessing 19 Dr. Francis’ medical opinion. On remand, Plaintiff requested the opportunity to 20 seek clarification from Dr. Francis regarding his opinion, if the ALJ questioned the 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 22 1 opinion. After rejecting the request, the ALJ discredited the medical opinion based 2 on grounds that Plaintiff’s counsel could have sought clarification on. For 3 example, the ALJ found that Dr. Francis did not explain the basis for the assertion 4 that Plaintiff met listing 1.02A. and that Dr. Francis never addressed the claimant’s 5 ability to ambulate. Dr. Francis, who testified as an independent medical expert, 6 was not questioned about the basis for his opinion as to listing 1.02A and was not 7 questioned about Plaintiff’s ability to ambulate as part of meeting or equaling the 8 listing. The ALJ’s refusal to supplement the record at Plaintiff’s request, then 9 discrediting the medical opinion for lack of information that the medical expert 10 was not asked to provide was error. 11 Moreover, the error was compounded by the ALJ failing to comply with this 12 Court’s previous order. “The law of the case doctrine generally prohibits a court 13 from considering an issue that has already been decided by that same court or a 14 higher court in the same case.” Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016) 15 (holding that law of the case applies to social security cases). In the prior decision, 16 the Court found that “[a]though Dr. Francis used words like ‘probably’ and 17 ‘hypothetical,’ the testimony establishes Dr. Francis’ opinion that plaintiff would 18 likely have missed some work due to knee pain.” Tr. 462. The Court went onto to 19 explain that “the ALJ should have either offered legally sufficient reasons for 20 rejecting this limitation or included the limitation in the hypothetical.” Id. Here, 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 23 1 the ALJ failed to comply with this instruction by finding, after the second hearing, 2 that “Dr. Francis never explicitly agreed it was reasonable to expect claimant 3 would have missed three or more days a month of work . . . .” Compare Tr. 364 4 with Tr. 462 (finding that despite using words like “probably” and “hypothetical,” 5 the testimony established that Dr. Francis opined Plaintiff would likely have 6 missed some work due to knee pain.). 7 Given the procedural posture of this case and the failure to conform to the 8 Court’s prior order, the Court finds that there was sufficient inadequacy in the 9 record to trigger the ALJ’s duty to develop the record. On remand, the ALJ should 10 permit Plaintiff to recontact Dr. Francis to provide any clarifying information 11 about his medical opinions. 12 13 C. Medical Opinion Evidence Plaintiff faults the ALJ for discrediting the medical opinions of treating 14 physician Michael Jach, M.D.; reviewing physician Howard Platter, M.D.; 15 Katherine Smith; and reviewing physician Anthony Francis, M.D. ECF No. 20 at 16 13-17. 17 There are three types of physicians: “(1) those who treat the claimant 18 (treating physicians); (2) those who examine but do not treat the claimant 19 (examining physicians); and (3) those who neither examine nor treat the claimant 20 but who review the claimant’s file (nonexamining or reviewing physicians).” 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 24 1 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 2 “Generally, a treating physician’s opinion carries more weight than an examining 3 physician’s, and an examining physician’s opinion carries more weight than a 4 reviewing physician’s.” Id. at 1202. “In addition, the regulations give more 5 weight to opinions that are explained than to those that are not, and to the opinions 6 of specialists concerning matters relating to their specialty over that of 7 nonspecialists.” Id. (citations omitted). 8 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 9 reject it only by offering “clear and convincing reasons that are supported by 10 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 11 “However, the ALJ need not accept the opinion of any physician, including a 12 treating physician, if that opinion is brief, conclusory and inadequately supported 13 by clinical findings.” Bray, 554 F.3d at 1228 (internal quotation marks and 14 brackets omitted). “If a treating or examining doctor’s opinion is contradicted by 15 another doctor’s opinion, an ALJ may only reject it by providing specific and 16 legitimate reasons that are supported by substantial evidence.” Bayliss, 427 F.3d at 17 1216 (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). 18 The opinion of an acceptable medical source such as a physician or 19 psychologist is given more weight than that of an “other source.” See SSR 06-03p 20 (Aug. 9, 2006), available at 2006 WL 2329939 at *2; 20 C.F.R. § 416.927(a). 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 25 1 “Other sources” include nurse practitioners, physician assistants, therapists, 2 teachers, social workers, and other non-medical sources. 20 C.F.R. §§ 3 404.1513(d), 416.913(d). The ALJ need only provide “germane reasons” for 4 disregarding an “other source” opinion. Molina, 674 F.3d at 1111. 5 In this matter, the ALJ assigned little or no weight to all of the medical 6 opinions provided. None of the treating or reviewing physicians’ opinions at issue 7 were not contradicted. Accordingly, the ALJ was required to offer clear and 8 convincing reasons supported by substantial evidence to reject the medical 9 opinions. Bayliss, 427 F.3d at 1216. 10 Ms. Smith is not a physician and, therefore, ALJ Valente could reject her 11 opinion by offering germane reasons. Britton v. Colvin, 787 F.3d 1011, 1013 (9th 12 Cir. 2015). 13 1. 14 Plaintiff contends the ALJ erred in rejecting the medical opinion of treating Dr. Jach 15 physician Dr. Jach. ECF No. 20 at 13. 16 Dr. Jach opined that Plaintiff’s right-knee pain caused a markedly severe 17 impairment, meaning very significant interference in her ability to stand, walk, and 18 lift. Tr. 158, 162. Because of her limitations, Dr. Jach opined that Plaintiff was, at 19 most, capable of performing sedentary work. Tr. 158, 162. Dr. Jach first assessed 20 these limitations in January 2006, and estimated that Plaintiff’s limitations would 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 26 1 continue for four months. Tr. 158. Following up on that assessment in April 2006, 2 Dr. Jach extended his estimate an additional six months. Tr. 163. 3 ALJ Valente afforded Dr. Jach’s opinions only minimal weight. Tr. 364. 4 ALJ Valente found the ten-months Dr. Jach’s estimated Plaintiff’s limitations to 5 persist undermined his opinion because it did not meet the durational requirements 6 for disability. Tr. 365. ALJ Valente also discounted Dr. Jach’s opinion because he 7 did not formally diagnose Plaintiff, only noting that she had “chronic right knee 8 pain.” Tr. 365. “Finally,” ALJ Valente found Dr. Jach’s limitations “inconsistent 9 with the claimant’s minimal complaints of knee pain, her activities, her minimal 10 examination findings, and the conservative treatment she was provided.” Tr. 365. 11 Plaintiff contends portions of ALJ Valente’s decision contradict this Court’s 12 prior order. ECF No. 20 at 15. ALJ Gaughen previously discounted Dr. Jach’s 13 opinion based on the ten-month estimate and because exam findings did not 14 support his opinion. Tr. 23. This Court rejected those reasons. Tr. 463-466. 15 Significantly, Defendant does not present any argument defending the ALJ’s 16 rejection of Dr. Jack’s opinion; Defendant argues, that if the rejection was error, it 17 was harmless error. ECF No. 22 at 12. 18 Based on Defendant’s failure to present argument on this issue, the Court 19 finds that the ALJ could not reject Dr. Jach’s opinion based on the ten-month 20 estimate or because exam findings did not support his opinion. See Stacy v. 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 27 1 Colvin, 825 F.3d 563 (9th Cir. 2016). The remaining reasons – the minimal 2 treatment Plaintiff sought, her activities – are the same reasons ALJ Valente relied 3 on to discount Plaintiff’s symptom claims. Tr. 365. As discussed in the adverse 4 credibility section above, the Plaintiff’s daily activities constitute a clear and 5 convincing reason for discrediting her. 6 Assuming without deciding that Plaintiff’s daily activities are inconsistent 7 with Dr. Jach’s assessment, the ALJ’s reasoning is not clear and convincing. An 8 ALJ may reject a contradicted treating physician’s opinion if it is inconsistent with 9 a claimant’s daily activities. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 10 595, 600–02 (9th Cir.1999) (considering an inconsistency between a treating 11 physician’s opinion and a claimant’s daily activities a specific and legitimate 12 reason to discount the treating physician's opinion). Defendant has provided no 13 authority establishing that the reasons offered constitute clear and convincing 14 reasons for discrediting the uncontradicted opinions of treating physician Dr. Jach. 15 The Court finds the ALJ failed to offer clear and convincing reasons to accord Dr. 16 Jach’s opinion less weight. 17 2. 18 Plaintiff contests the little weight ALJ Valente afforded Dr. Platter and Ms. Dr. Platter and Ms. Smith 19 Smith’s opinion. EC No. 20 at 16. 20 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 28 1 Ms. Smith reviewed Plaintiff’s medical record for the Social Security 2 Administration. Tr. 220-227. Based on her review, she concluded Plaintiff ought 3 to be limited to standing and walking two hours in an eight-hour workday. Tr. 4 221. Dr. Platter reviewed Plaintiff’s medical file and Ms. Smith’s assessment and 5 reaffirmed this limitation. Tr. 228. These findings were largely consistent with 6 treating physician Dr. Jach’s assessment of limitation to sedentary work. 7 ALJ Valente afforded Dr. Platter’s opinion little weight. Tr. 363. ALJ 8 Valente found the limitation Dr. Platter assessed inconsistent with Plaintiff’s 9 “minimal complaints of knee pain, her activities, her minimal examination 10 findings, and the conservative treatment she was provided.” Tr. 363. 11 Plaintiff faults the ALJ for substituting her judgement for that of medical 12 professionals like Dr. Platter. ECF No. 20 at 16. Moreover, Plaintiff contends Dr. 13 Platter’s opinion was consistent with the findings of Dr. Jach, findings this Court 14 previously found were supported by his examination findings. ECF No. 20 at 16; 15 Tr. 465-466. The ALJ’s remaining reasons for rejecting Dr. Platter and Ms. 16 Smith’s opinion mirrored those offered for rejecting Dr. Jach’s. While Ms. 17 Smith’s opinion can be rejected for a germane reason, Dr. Platter is a reviewing 18 physician whose opinion is uncontradicted. Accordingly, the ALJ must offer clear 19 and convincing reasons for rejecting his opinion. Bayliss, 427 F.3d at 1216. As 20 with Dr. Jach, Defendant failed to challenge Plaintiff’s argument and presents no 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 29 1 argument to the Court defending the ALJ’s rejection of the medical opinions. ECF 2 No. 22 at 12. 3 Defendant contends the ALJ’s rejection of Dr. Jach and Dr. Platter’s opinion 4 was harmless because, even if credited, their opinions would have established a 5 sedentary RFC. ECF No. 22 at 12. “An error is harmless where it is 6 inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d 7 1115. Under the Medical Vocational Guidelines, a person under age 45 with a 8 high school education and limited to sedentary work is not disabled. ECF No. 22 9 at 13 (citing 20 C.F.R. pt. 404, subpt. P, app. 2, §§ 201.28, 201.29). But, as 10 Plaintiff notes, Plaintiff suffered additional, non-exertional limitations. Tr. 360, 11 367. In such circumstances, “a vocational expert is required to identify jobs that 12 match the abilities of the claimant, given her limitations.” Johnson v. Shalala, 60 13 F.3d 1428, 1432 (9th Cir. 1995). Here, the vocational expert was not asked to and, 14 therefore, did not identify any sedentary jobs Plaintiff could perform with her 15 additional limitations. Accordingly, the error is not harmless. 16 17 3. Dr. Francis Plaintiff contends the ALJ erred in discounting the opinion of medical expert, 18 Dr. Francis. ECF No. 20 at 13. For the reasons set forth supra, the Court finds 19 that the ALJ failed to articulate clear and convincing reasons for rejecting Dr. 20 Francis’ opinions and erred by failing to supplement the record. 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 30 1 2 CONCLUSION The ALJ’s decision is not supported by substantial evidence or free of legal 3 error. Because further administrative proceedings are necessary, remand is 4 appropriate. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1104-07 5 (9th Cir. 2014). On remand, the ALJ should develop the record by permitting 6 Plaintiff to recontact Dr. Francis so that his opinions are accurately represented, 7 should reevaluate the medical opinion evidence, and the provide legally sufficient 8 reasons for evaluating these opinions. Finally, the ALJ must reconsider the step 9 three findings, and if necessary, reevaluate the RFC and the entirety of the 10 sequential process. 11 IT IS ORDERED: 12 1. Plaintiff’s Motion for Summary Judgment (ECF No. 20) is 13 GRANTED and the matter is remanded to the Commissioner for additional 14 proceedings pursuant to sentence four. 42 U.S.C. § 405(g). 15 2. Defendant’s Motion for Summary Judgment (ECF No. 22) is 16 DENIED. 17 3. An application for attorney’s fee may be filed by separate motion. 18 19 20 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 31 1 The District Court Executive is directed to file this Order, enter Judgment 2 for Plaintiff, remand the case for further proceedings, provide copies to counsel, 3 and CLOSE the file. 4 5 6 DATED this Friday, September 02, 2016. s/ Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 32

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