Boleyn v. Saul, No. 1:2019cv03273 - Document 19 (E.D. Wash. 2020)

Court Description: ORDER GRANTING 17 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 18 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. This file is CLOSED. Signed by Magistrate Judge Mary K. Dimke. (CLP, Case Administrator)

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Boleyn v. Saul Doc. 19 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Jun 11, 2020 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 VAILE B. O/B/O SUZANNE S.,1 Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. No. 1:19-cv-03273-MKD ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 17, 18 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 17, 18. The parties consented to proceed before a magistrate judge. ECF No. 15 10. The Court, having reviewed the administrative record and the parties’ briefing, 16 17 1 To protect the privacy of plaintiffs in social security cases, the undersigned 18 identifies them by only their first names and the initial of their last names. See 19 LCivR 5.2(c). 20 2 ORDER - 1 Dockets.Justia.com 1 is fully informed. For the reasons discussed below, the Court grants Plaintiff’s 2 motion, ECF No. 17, and denies Defendant’s motion, ECF No. 18. 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 5 1383(c)(3). 6 7 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 8 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 9 limited; the Commissioner’s decision will be disturbed “only if it is not supported 10 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 11 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 12 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 13 (quotation and citation omitted). Stated differently, substantial evidence equates to 14 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 15 citation omitted). In determining whether the standard has been satisfied, a 16 reviewing court must consider the entire record as a whole rather than searching 17 for supporting evidence in isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 20 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 ORDER - 2 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 3 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 4 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 5 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 6 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 7 decision generally bears the burden of establishing that it was harmed. Shinseki v. 8 Sanders, 556 U.S. 396, 409-10 (2009). 9 10 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 11 the meaning of the Social Security Act. First, the claimant must be “unable to 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which 14 has lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 16 impairment must be “of such severity that he is not only unable to do his previous 17 work[,] but cannot, considering his age, education, and work experience, engage in 18 any other kind of substantial gainful work which exists in the national economy.” 19 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 20 2 ORDER - 3 1 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 3 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 4 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 5 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 6 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 7 404.1520(b), 416.920(b). 8 If the claimant is not engaged in substantial gainful activity, the analysis 9 proceeds to step two. At this step, the Commissioner considers the severity of the 10 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 11 claimant suffers from “any impairment or combination of impairments which 12 significantly limits [his or her] physical or mental ability to do basic work 13 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 14 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 15 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 16 §§ 404.1520(c), 416.920(c). 17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 20 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 2 ORDER - 4 1 severe than one of the enumerated impairments, the Commissioner must find the 2 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 9 analysis. 10 At step four, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing work that he or she has performed in 12 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 13 If the claimant is capable of performing past relevant work, the Commissioner 14 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 15 If the claimant is incapable of performing such work, the analysis proceeds to step 16 five. 17 At step five, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing other work in the national economy. 19 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 20 the Commissioner must also consider vocational factors such as the claimant’s age, 2 ORDER - 5 1 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 2 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 5 work, analysis concludes with a finding that the claimant is disabled and is 6 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 10 capable of performing other work; and 2) such work “exists in significant numbers 11 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 12 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 13 14 ALJ’S FINDINGS On September 24, 2009, Plaintiff applied for Title II disability insurance 15 benefits, and on March 17, 2010 Plaintiff applied for Title XVI supplemental 16 security income benefits, alleging a disability onset date of February 29, 2008. Tr. 17 74-75, 134-45. The applications were denied initially and on reconsideration. Tr. 18 78-81, 84-88. Plaintiff appeared before an administrative law judge (ALJ) on 19 August 7, 2012. Tr. 35-73. On November 16, 2012, the ALJ denied Plaintiff’s 20 claim. Tr. 16-34. Plaintiff appealed the decision and the case was remanded in 2 ORDER - 6 1 February 2015. Tr. 587-91. In the interim period before the case was remanded, 2 Plaintiff’s subsequent applications for benefits resulted in a finding of disability 3 beginning November 17, 2012 because of advanced liver disease, and the Appeals 4 Council affirmed the disability determination. Tr. 554-63, 587-91. Suzanne S.2 5 died in October 2014 and her daughter substituted as surviving party. Tr. 587-91, 6 873. A second hearing was held December 15, 2015, Tr. 508-16, which resulted in 7 an April 2016 unfavorable decision for the time period of February 29, 2008 8 through November 16, 2012. Tr. 486-507. Plaintiff’s substituted party appealed 9 the decision, resulting in a September 5, 2017 remand. Tr. 1059-62. A third 10 hearing was held on June 17, 2019. Tr. 994-1023. On July 22, 2019, the ALJ 11 again found Plaintiff was not disabled from February 29, 2008 through November 12 16, 2012. Tr. 971-92. 13 At step one of the sequential evaluation process, the ALJ found Plaintiff, 14 who met the insured status requirements through September 30, 2013, had not 15 engaged in substantial gainful activity since February 29, 2008. Tr. 977. At step 16 two, the ALJ found that Plaintiff had the following severe impairments: chronic 17 headache disorders (including trigeminal neuralgia and/or chronic paroxysmal 18 19 20 2 2 The Court refers to Suzanne S. as the plaintiff. ORDER - 7 1 hemicrania), Crohn’s disease, fibromyalgia, affective disorder, and alcohol 2 dependence. Id. 3 At step three, the ALJ found Plaintiff does not have an impairment or 4 combination of impairments that meets or medically equals the severity of a listed 5 impairment. Tr. 978. The ALJ then concluded that Plaintiff had the RFC to 6 perform light work with the following limitations: 7 8 9 10 11 12 13 14 15 16 [Plaintiff] could perform work that was indoors for ready access to a bathroom during regular breaks. She could never climb ladders, ropes or scaffolds. She could never work at unprotected heights or in proximity to hazards, such as heavy machinery with dangerous moving parts. She could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. She could perform work in which concentrated exposure to wetness, pulmonary irritants, extreme temperatures, or vibration was not present. She could understand, remember and carry out simple, routine tasks and follow short, simple instructions. She could perform work that required little or no judgment, and could perform simple duties that can be learned on the job in a short period. She could cope with occasional work setting change. She could perform work that did not require strict adherence to time limits for each task performed, such as in an assembly line, but could complete required tasks at a variable pace throughout the course of an eight-hour work day. Within these parameters, [Plaintiff] could meet ordinary and reasonable employer expectations regarding attendance, production and work place behavior, and [could] persist, focus, concentrate and maintain an adequate pace in two-hour increments. 17 Tr. 979-80. 18 At step four, the ALJ found Plaintiff was not capable of performing her past 19 relevant work. Tr. 983. At step five, the ALJ found that, considering Plaintiff’s 20 age, education, work experience, RFC, and testimony from the vocational expert, 2 ORDER - 8 1 there were jobs that existed in significant numbers in the national economy that 2 Plaintiff could perform, such as document preparer, phone solicitor, storage rental 3 clerk, and collator. Tr. 984. Therefore, the ALJ concluded Plaintiff was not under 4 a disability, as defined in the Social Security Act, from the alleged onset date of 5 February 29, 2008, through November 16, 2012. Id. 6 Per 20 C.F.R. §§ 404.984 and 416.1484, the ALJ’s decision following this 7 Court’s prior remand became the Commissioner’s final decision for purposes of 8 judicial review. 9 10 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 11 her disability insurance benefits under Title II and supplemental security income 12 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 13 issues for review: 14 1. Whether the ALJ properly evaluated the medical opinion evidence; and 15 2. Whether the ALJ conducted a proper step-five analysis. 16 ECF No. 17 at 6. 17 18 19 DISCUSSION A. Medical Opinion Evidence Plaintiff contends the ALJ erred in her consideration of the opinion of 20 medical expert James Haynes, M.D. ECF No. 17 at 8-10. There are three types of 2 ORDER - 9 1 physicians: “(1) those who treat the claimant (treating physicians); (2) those who 2 examine but do not treat the claimant (examining physicians); and (3) those who 3 neither examine nor treat the claimant [but who review the claimant’s file] 4 (nonexamining [or reviewing] physicians).” Holohan v. Massanari, 246 F.3d 5 1195, 1201-02 (9th Cir. 2001) (citations omitted). Generally, a treating physician’s 6 opinion carries more weight than an examining physician’s, and an examining 7 physician’s opinion carries more weight than a reviewing physician’s. Id. at 1202. 8 “In addition, the regulations give more weight to opinions that are explained than 9 to those that are not, and to the opinions of specialists concerning matters relating 10 to their specialty over that of nonspecialists.” Id. (citations omitted). 11 If a treating or examining physician’s opinion is uncontradicted, the ALJ 12 may reject it only by offering “clear and convincing reasons that are supported by 13 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 14 “However, the ALJ need not accept the opinion of any physician, including a 15 treating physician, if that opinion is brief, conclusory and inadequately supported 16 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 17 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 18 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 19 may only reject it by providing specific and legitimate reasons that are supported 20 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 2 ORDER - 10 1 F.3d 821, 830-31 (9th Cir. 1995)). The opinion of a nonexamining physician may 2 serve as substantial evidence if it is supported by other independent evidence in the 3 record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 4 Dr. Haynes stated there are a variety of differing diagnoses in the record to 5 account for Plaintiff’s neurological symptom complaints, and none of the 6 diagnoses, including trigeminal neuralgia, squarely fit her symptoms. Tr. 1004, 7 1006. Although he did not provide a specific diagnosis, Dr. Haynes opined 8 Plaintiff would have had limitations when she was having pain, and when without 9 pain she would not have had any limitations; her headaches “at times . . . possibly 10 might have” affected her attendance at a work place, and “possibly” would have 11 caused unscheduled absences, but he was unable to quantify how often she may 12 have missed work. Tr. 1005-06. The ALJ gave Dr. Hayes’ opinion some weight. 13 Tr. 982. As Dr. Haynes is a nonexamining source, the ALJ must consider the 14 opinion and whether it was consistent with other independent evidence in the 15 record. See 20 C.F.R. §§ 404.1527(b),(c)(1), 416.927(b),(c)(1); Tonapetyan v. 16 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Lester, 81 F.3d at 830-31. 17 First, the ALJ found the “medical opinions” contained in exhibits 9F and 18 14F were more consistent with the record as a whole than Dr. Haynes’ opinion. 19 Tr. 982 (citing Tr. 365-71, 451). An ALJ may choose to give more weight to an 20 opinion that is more consistent with the evidence in the record. 20 C.F.R. §§ 2 ORDER - 11 1 404.1527(c)(4), 416.927(c)(4) (“[T]he more consistent a medical opinion is with 2 the record as a whole, the more weight we will give to that medical opinion.”); 3 Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996). Relevant factors when 4 evaluating a medical opinion include the amount of relevant evidence that supports 5 the opinion, the quality of the explanation provided in the opinion, and the 6 consistency of the medical opinion with the record as a whole. Lingenfelter v. 7 Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631 (9th 8 Cir. 2007); 20 C.F.R. § 416.927(c)(6) (assessing the extent to which a medical 9 source is “familiar with the other information in [the claimant’s] case record”). 10 However, an ALJ may not accord any weight to a non-physician single 11 decision maker (SDM) opinion.3 Morgan v. Colvin, 531 Fed. App’x 793, 794-95 12 (9th Cir. June 21, 2013) (unpublished) (citing Program Operations Manual System 13 DI 24510.050). An ALJ must consider the opinions of medical consultants, even 14 15 3 Under the single decision maker (SDM) model, a State agency disability analyst 16 is able to determine a claimant’s eligibility for benefits and sign the determination, 17 without having a medical consultant sign the determination, though the analyst 18 should have a psychological consultant complete the medical section, and mental 19 RFC, if there is evidence of a mental impairment. 20 C.F.R. §§ 404.906(b)(2), 20 416.1406(b)(2). 2 ORDER - 12 1 when the medical consultant affirmed the SDM’s opinion without the addition of 2 any further analysis. Id. at 795. Other courts have held that an ALJ may rely on a 3 medical consultant’s opinion that affirms a SDM’s opinion. See, e.g., Sanford v. 4 Berryhill, No. C17-5820-MAT, 2018 WL 3135845 at *3 (W.D. Wash. June 27, 5 2018); Bays v. Colvin, No. 2:14-CV-01564, 2015 WL 769784, at *22 (S.D.W. Va. 6 Feb. 23, 2015). 7 Here, the ALJ stated she gave “greater weight” to the “set of medical 8 opinions” that are more consistent with the record as a whole, and cited to exhibits 9 9F and 14F. Tr. 982. However, exhibit 9F contains only the opinion of SDM Julie 10 Watson, while exhibit 14F contains a sentence from State Agency medical 11 consultant Robert Hoskins, M.D., stating he affirms Ms. Watson’s analysis. Tr. 12 365-71, 451. The ALJ’s statement regarding the “set of medical opinions” 13 indicates she erroneously believed Ms. Watson, an SDM, was a medical 14 consultant. Ms. Watson’s determination was signed only by herself; a medical 15 consultant did not sign the determination. Tr. 371. 16 In Morgan, the ALJ erroneously noted an SDM was a medical consultant 17 and gave the opinion substantial weight. Morgan, 531 Fed. App’x at 795. The 18 ALJ relied on the SDM’s opinion in finding the plaintiff was capable of 19 performing light work. Id. Though a medical consultant affirmed the SDM’s 20 opinion, the Ninth Circuit held that the ALJ’s error was not harmless because the 2 ORDER - 13 1 court could not determine if the ALJ would give the same substantial weight to a 2 physician’s opinion that affirmed an SDM’s opinion as the ALJ gave when she 3 mistakenly believed it was a physician’s opinion. Id. Here, it appears the ALJ 4 erroneously believed the SDM was a physician. See Tr. 982. The ALJ gave Ms. 5 Watson’s opinion greater weight than she gave to Dr. Haynes’ opinion. Id. The 6 ALJ’s assignment of any weight to the SDM’s opinion was improper. See 7 Morgan, 531 Fed. App’x at 794-95. Like Morgan, a later affirmation of the 8 SDM’s opinion by a physician does not render the error harmless in this case. The 9 Court cannot determine if the ALJ would have given the same weight to the 10 opinions if she had known the opinion originated from an SDM. 11 Second, the ALJ found Dr. Haynes’ opinion inconsistent with Plaintiff’s 12 activities of daily living. Tr. 982. An ALJ may discount a medical source opinion 13 to the extent it conflicts with the claimant’s daily activities. Morgan, 169 F.3d at 14 601-02. The ALJ reasoned that while Plaintiff alleged her headaches largely 15 confined her to her room, this was inconsistent with her ability to drive on a daily 16 basis, and handle shopping, cooking, and cleaning. Tr. 982 (citing Tr. 334-35, 17 340-41, 592-630). While Plaintiff reported the ability to perform some daily tasks, 18 she also reported she can drive “locally only for short periods,” Tr. 334, and that 19 being out of her home for more than a couple of hours exacerbates her pain, Tr. 20 339. Plaintiff testified her daily driving involves driving her daughter only five 2 ORDER - 14 1 blocks to school, and she otherwise occasionally goes to the grocery store “for a 2 few minutes” and to get gasoline. Tr. 603-04. Plaintiff reported handling “light 3 cooking” and “light housework.” Tr. 335. Plaintiff testified the house only gets 4 fully cleaned every four months and her daughter helps with the cleaning. Tr. 605. 5 The ability to handle light activities for short periods and occasionally engage in 6 chores is not inconsistent with Plaintiff’s allegations nor Dr. Haynes’ opinion. 7 Third, the ALJ found Dr. Haynes’ opinion inconsistent with the objective 8 evidence. Tr. 982. A medical opinion may be rejected if it is unsupported by 9 medical findings. Bray, 554 F.3d at 1228; Batson v. Comm’r of Soc. Sec. Admin., 10 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th 11 Cir. 2002); Tonapetyan, 242 F.3d at 1149; Matney v. Sullivan, 981 F.2d 1016, 12 1019 (9th Cir. 1992). An ALJ may discredit physicians’ opinions that are 13 unsupported by the record as a whole. Batson, 359 F.3d at 1195. 14 The ALJ reasoned Plaintiff’s records do not demonstrate any positive 15 neurological findings in treatment settings. Tr. 982. She noted that when Plaintiff 16 alleged active headaches, she had a normal examination. Id. (citing Tr. 224, 22917 30, 232, 236, 246, 278, 285-87 (duplicative records); Tr. 304-05, 333-38, 457, 46118 62). However, while the records contain some normal examinations, the ALJ’s 19 assessment that there are no positive neurological findings is inaccurate. The cited 20 records demonstrate multiple abnormalities. Tr. 224 (squinting with her right eye, 2 ORDER - 15 1 in modest distress/pain, though otherwise normal examination); Tr. 229-30 2 (appeared anxious, uncomfortable, concerned, mild intermittent shakiness, 3 otherwise normal neurological examination); Tr. 232 (“somewhat jovial, pleasant 4 woman,” but “somewhat photophobic” during eye examination); Tr. 236 (normal 5 examination); Tr. 246 (wearing sunglasses but otherwise normal examination); Tr. 6 278 (has ice pack on head, wearing sunglasses, but otherwise normal examination); 7 Tr. 333-38 (normal examination); Tr. 457 (decreased facial sensation with 8 otherwise normal examination); Tr. 461-62 (normal examination). 9 Further, while Plaintiff had normal imaging and multiple generally normal 10 examinations, her providers all thought she was experiencing neurological 11 symptoms that required treatment. See, e.g., Tr. 304-06, 337-37, 457-59. Plaintiff 12 was trialed on multiple medications and surgery was considered although 13 ultimately not recommended. Id. Dr. Haynes testified that although the medical 14 records contained multiple different neurological diagnoses, there was no doubt 15 Plaintiff was experiencing her reported symptoms. Tr. 1006-07. 16 Defendant argues the ALJ properly rejected Dr. Haynes’ opinion as it was 17 vague, equivocal and uncertain. ECF No. 18 at 2-4. However, the ALJ did not 18 find Dr. Haynes’ opinion to be vague nor uncertain and as such the Court will not 19 consider this rationale. Tr. 982; see Orn, 495 F.3d at 630; Stout v. Comm’r, Soc. 20 Sec. Admin, 454 F.3d 1050, 1054 (9th Cir. 2006). While Dr. Haynes did not 2 ORDER - 16 1 quantify his opinion, he testified he found Plaintiff’s statements credible, and 2 Plaintiff alleged disabling limitations. As such, the ALJ committed harmful error 3 in her analysis of Dr. Haynes’ opinion. 4 On remand, the ALJ is instructed to give no weight to Ms. Watson’s opinion 5 and to reconsider the weight that should be given to the other opinion evidence, in 6 light of the appropriate analysis of Ms. Watson’s opinion. The ALJ is further 7 instructed to again call a medical expert to address Plaintiff’s limitations during the 8 relevant period. Given the multiple references in the medical records to Plaintiff’s 9 physical symptoms having a psychological component to them, Tr. 229, 232, 254, 10 341, the ALJ is also instructed on remand to call a psychological expert to address 11 Plaintiff’s limitations during the relevant period. 12 13 B. Step Five Plaintiff contends the ALJ erred in her step five analysis. ECF No. 17 at 10- 14 11. “[I]f a claimant establishes an inability to continue her past work, the burden 15 shifts to the Commissioner in step five to show that the claimant can perform other 16 substantial gainful work.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) 17 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). At step five, “the 18 ALJ ... examines whether the claimant has the [RFC] ... to perform any other 19 substantial gainful activity in the national economy.” Id. “If the claimant is able to 20 do other work, then the Commissioner must establish that there are a significant 2 ORDER - 17 1 number of jobs in the national economy that claimant can do.” Tackett, 180 F.3d 2 at 1099. “There are two ways for the Commissioner to meet the burden of 3 showing that there is other work in ‘significant numbers’ in the national economy 4 that claimant can do: (1) by the testimony of a [VE], or (2) by reference to the 5 Medical-Vocational Guidelines....” Id. “If the Commissioner meets this burden, 6 the claimant is not disabled and therefore not entitled to ... benefits.” Id. (citation 7 omitted). “If the Commissioner cannot meet this burden, then the claimant is 8 disabled and therefore entitled to ... benefits.” Id. (citation omitted). 9 The ALJ found that given Plaintiff’s RFC, she would be able to perform the 10 requirements of occupations including document preparer, phone solicitor, storage 11 rental clerk, and collator. Tr. 984. Plaintiff contends the ALJ erred in her step five 12 analysis because she relied on testimony from the vocational expert that was based 13 on an incomplete hypothetical. ECF No. 17 at 10-11. As the case is being 14 remanded for the ALJ to reconsider medical opinion evidence and take new 15 medical expert testimony, the ALJ is directed to perform the five-step sequential 16 analysis anew, including reconsidering Plaintiff’s ability to perform work at step 17 four and step five. 18 19 C. Remedy Plaintiff urges this Court to remand for an immediate award of benefits. 20 ECF No. 17 at 11-12. 2 ORDER - 18 1 “The decision whether to remand a case for additional evidence, or simply to 2 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 3 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). 4 When the Court reverses an ALJ’s decision for error, the Court “ordinarily must 5 remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 6 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“the 7 proper course, except in rare circumstances, is to remand to the agency for 8 additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 9 775 F.3d 1090, 1099 (9th Cir. 2014). However, in a number of Social Security 10 cases, the Ninth Circuit has “stated or implied that it would be an abuse of 11 discretion for a district court not to remand for an award of benefits” when three 12 conditions are met. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) 13 (citations omitted). Under the credit-as-true rule, where (1) the record has been 14 fully developed and further administrative proceedings would serve no useful 15 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 16 evidence, whether claimant testimony or medical opinion; and (3) if the improperly 17 discredited evidence were credited as true, the ALJ would be required to find the 18 claimant disabled on remand, the Court will remand for an award of benefits. 19 Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). Even where the three 20 prongs have been satisfied, the Court will not remand for immediate payment of 2 ORDER - 19 1 benefits if “the record as a whole creates serious doubt that a claimant is, in fact, 2 disabled.” Garrison, 759 F.3d at 1021. 3 Further administrative proceedings are necessary to resolve conflicts in the 4 evidence, including conflicting opinions, and take new medical expert testimony to 5 further clarify what limitations Plaintiff had during the relevant adjudicative 6 period. As such, the case is remanded for proceedings consistent with this Order. 7 8 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 9 ALJ’s decision is not supported by substantial evidence and is not free of harmful 10 legal error. Accordingly, IT IS HEREBY ORDERED: 11 1. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is GRANTED. 12 2. Defendant’s Motion for Summary Judgment, ECF No. 18, is DENIED. 13 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 14 REVERSING and REMANDING the matter to the Commissioner of Social 15 Security for further proceedings consistent with this recommendation pursuant to 16 sentence four of 42 U.S.C. § 405(g). 17 18 19 20 2 ORDER - 20 1 The District Court Executive is directed to file this Order, provide copies to 2 counsel, and CLOSE THE FILE. 3 DATED June 11, 2020. 4 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 ORDER - 21

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