Wright v. Colvin, No. 2:2014cv00198 - Document 18 (E.D. Wash. 2015)

Court Description: ORDER GRANTING, IN PART, ECF No. 15 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS and denying ECF No. 16 Defendant's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

Download PDF

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 GARY WAYNE WRIGHT, 9 Plaintiff, 10 11 v. 12 CAROLYN W. COLVIN, 13 Commissioner of Social Security, 14 No. 2:14-CV-0198-JTR ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 15 16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 No. 15, 16. Attorney Dana Chris Madsen represents Gary Wayne Wright 18 (Plaintiff); Special Assistant United States Attorney L. Jamala Edwards represents 19 the Commissioner of Social Security (Defendant). The parties have consented to 20 proceed before a magistrate judge. ECF No. 7, 8. After reviewing the 21 administrative record and the briefs filed by the parties, the Court GRANTS, in 22 part, Plaintiff’s Motion for Summary Judgment; DENIES Defendant’s Motion for 23 Summary Judgment; and REMANDS the matter to the Commissioner for 24 additional proceedings pursuant to 42 U.S.C. § 405(g). 25 JURISDICTION 26 Plaintiff filed an application for Supplemental Security Income (SSI) on 27 December 14, 2008, alleging disability since January 1, 1981, due to borderline 28 intellectual functioning, anxiety and anger. Tr. 253, 278. Plaintiff indicates he ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 1 stopped working because of his condition on January 1, 1988, Tr. 178, however, 2 the SSI application date, December 14, 2008, is construed as Plaintiff’s alleged 3 onset date of disability because SSI is not payable prior to the month after the 4 month in which an individual files an application for SSI. Tr. 19-20. 5 The SSI application was denied initially and upon reconsideration. 6 Administrative Law Judge (ALJ) Caroline Siderius held an initial hearing on June 7 1, 2010, Tr. 49-70, and issued an unfavorable decision on June 22, 2010, Tr. 155- 8 166. On April 26, 2012, the Appeals Council granted Plaintiff’s request for review 9 and remanded the matter to the ALJ with instructions to evaluate the opinion of R. 10 Renee Eisenhauer, Ph.D., and to address the presumption of continuing non- 11 disability arising from the prior unfavorable hearing decision of August 12, 2008. 12 Tr. 170-174. 13 ALJ Siderius held a new hearing on August 21, 2012, Tr. 71-95, and issued 14 another unfavorable decision on November 2, 2012, Tr. 19-33. The Appeals 15 Council denied review on April 23, 2014. Tr. 1-6. ALJ Siderius’ November 2012 16 decision became the final decision of the Commissioner, which is appealable to the 17 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 18 review on June 17, 2014. ECF No. 1, 4. 19 STATEMENT OF FACTS 20 Plaintiff was born on January 23, 1958, and was 50 years old on the SSI 21 application date, December 14, 2008. Tr. 274. Plaintiff completed high school, 22 reportedly taking special education classes and needing to repeat the third and 23 fourth grades. Tr. 55, 60, 419, 466. His “Disability Report” indicates he last 24 worked as a desk assembler in 1988. Tr. 278-279. He has also reported janitorial 25 work on an off-and-on basis since 1974. Tr. 87, 91, 319. In 1991, Plaintiff was 26 convicted of sex offenses involving children. Tr. 509. He was incarcerated until 27 1999 and is required to register as a sex offender. Tr. 509. While incarcerated, 28 Plaintiff worked for six or seven months in the prison kitchen, a job that ended ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2 1 when he was released in 1999. Tr. 419. He testified at the June 1, 2010 2 administrative hearing that he last worked in 1999 doing various labor tasks at 3 Nalley’s Pickle Plant and performing production work putting CDs into sleeves. 4 Tr. 53-54, 510. Plaintiff supports himself with public assistance. Tr. 64, 80-81. 5 At the June 1, 2010, administrative hearing, Plaintiff testified it was difficult 6 for him to get a job because he lacks education, his mind wanders, and he has 7 trouble staying focused. Tr. 59. At that time, Plaintiff indicated he was on 8 medication for cholesterol and high blood pressure, but did not take medication for 9 mental impairments. Tr. 56-57. He stated he had previously taken Prozac, but he 10 discontinued use of that medication due to the side effects. Tr. 60. At the August 11 21, 2012, administrative hearing, Plaintiff testified his anger and depression had 12 gotten worse. Tr. 75-76. He indicated he had problems maintaining a job because 13 of mind wandering, anger, anxiety, and not comprehending job duties. Tr. 81, 83- 14 85. He was taking Vistaril for anxiety at the time of the August 21, 2012, 15 administrative hearing. Tr. 85. 16 When asked about a typical day, Plaintiff stated on June 1, 2010, he sat 17 around, watched TV and did word search puzzles. Tr. 57-58. On August 21, 2012, 18 Plaintiff stated he watched TV five or six hours a day and continued to do word 19 search puzzles. Tr. 78, 82. He indicated he was able to keep up with his 20 housework, including laundry and dishes, and would go grocery shopping about 21 once a week. Tr. 58, 62. Plaintiff testified he could walk three or four blocks 22 before needing to sit. Tr. 62. Although his house had about 50 or 60 stairs, he 23 stated he had difficulty climbing stairs. Tr. 62-63, 88-89. He reported no 24 problems with sleep. Tr. 63, 79. 25 26 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 27 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 28 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 1 although deference is owed to a reasonable construction of the applicable statutes. 2 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ 3 may be reversed only if it is not supported by substantial evidence or if it is based 4 on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 5 evidence is defined as being more than a mere scintilla, but less than a 6 preponderance. Id. at 1098. Put another way, substantial evidence is such relevant 7 evidence as a reasonable mind might accept as adequate to support a conclusion. 8 Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to 9 more than one rational interpretation, the court may not substitute its judgment for 10 that of the ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. 11 Admin., 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by 12 substantial evidence will still be set aside if the proper legal standards were not 13 applied in weighing the evidence and making the decision. Brawner v. Secretary 14 of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial 15 evidence exists to support the administrative findings, or if conflicting evidence 16 exists that will support a finding of either disability or non-disability, the ALJ’s 17 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 18 Cir. 1987). 19 20 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 21 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 22 416.920(a); see, Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 23 through four, the burden of proof rests upon the claimant to establish a prima facie 24 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 25 burden is met once a claimant establishes that a physical or mental impairment 26 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 27 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 28 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 1 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 2 in the national economy which claimant can perform. Batson v. Commissioner of 3 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 4 an adjustment to other work in the national economy, a finding of “disabled” is 5 made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v). 6 ADMINISTRATIVE DECISION 7 The ALJ found Plaintiff had not engaged in substantial gainful activity since 8 December 14, 2008, the application date. Tr. 22. At step two, the ALJ determined 9 Plaintiff had the severe impairments of obesity, borderline intellectual 10 functioning/cognitive impairment, depression, anxiety, and personality disorders. 11 Tr. 22. At step three, the ALJ found Plaintiff did not have an impairment or 12 combination of impairments that meets or medically equals the severity of one of 13 the listed impairments. Tr. 24. 14 The ALJ assessed Plaintiff’s RFC and determined he could perform a 15 restricted range of light exertion level work. Tr. 25. The ALJ found that Plaintiff 16 could perform work that does not involve lifting or carrying more than 10 pounds 17 frequently or more than 20 pounds occasionally; sitting for more than a total of 6 18 hours during an 8-hour workday with normal breaks; standing and/or walking for 19 more than a total of 6 hours during an 8-hour workday with normal breaks; more 20 than 1 to 3-step tasks; any detailed work; more than ordinary production 21 requirements; more than occasional contact with coworkers or the public; or any 22 contact with children. Tr. 25-26. 23 At step four, the ALJ found Plaintiff had no past relevant work. Tr. 32. At 24 step five, the ALJ determined that, considering Plaintiff’s age, education, work 25 experience and RFC, and based on the testimony of the vocational expert, Plaintiff 26 was capable of making a successful adjustment to other work that exists in 27 significant numbers in the national economy, including the jobs of housekeeping 28 cleaner and agricultural produce sorter. Tr. 33. The ALJ thus concluded Plaintiff ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5 1 was not under a disability within the meaning of the Social Security Act at any 2 time from December 14, 2008, the application date, through the date of the ALJ’s 3 decision, November 2, 2012. Tr. 33. 4 ISSUES The question presented is whether substantial evidence supports the ALJ’s 5 6 decision denying benefits and, if so, whether that decision is based on proper legal 7 standards. Plaintiff contends the ALJ erred by (1) improperly discrediting his 8 symptom claims; and (2) failing to properly consider and weigh the medical 9 opinion evidence. 10 11 12 13 DISCUSSION A. Plaintiff’s Credibility Plaintiff contends the ALJ erred by failing to provide valid reasons for rejecting his subjective complaints. ECF No. 14 at 8-13. The Court agrees. 14 It is the province of the ALJ to make credibility determinations. Andrews v. 15 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 16 supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 17 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 18 medical impairment, the ALJ may not discredit testimony as to the severity of an 19 impairment because it is unsupported by medical evidence. Reddick v. Chater, 157 20 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of malingering, the 21 ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear and 22 convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. 23 Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: 24 rather the ALJ must identify what testimony is not credible and what evidence 25 undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 26 12 F.3d 915, 918 (9th Cir. 1993). 27 In this case, the ALJ found Plaintiff’s medically determinable impairments 28 could reasonably be expected to cause the alleged symptoms; however, Plaintiff’s ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 1 statements concerning the intensity, persistence and limiting effects of the 2 symptoms were not credible to the extent they were inconsistent with the ALJ’s 3 RFC determination. Tr. 27-28. 4 The ALJ first found that inconsistences between Plaintiff’s statements and 5 the evidence of record undermined his credibility. Tr. 27. Inconsistencies in a 6 disability claimant’s testimony support a decision by the ALJ that a claimant lacks 7 credibility. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986); Molina v. 8 Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (“Even where those activities suggest 9 some difficulty functioning, they may be grounds for discrediting the claimant’s 10 testimony to the extent that they contradict claims of a totally debilitating 11 impairment.”). 12 The ALJ determined Plaintiff’s “admission that he could concentrate to 13 watch television and do word search puzzles undermines his claim he could not 14 work because his mind wanders and he lacks the ability to focus.” Tr. 27. The 15 ALJ also noted Plaintiff’s testimony that he could read the newspaper, perform 16 simple math, and count change was inconsistent with his allegations of 17 concentration deficits. Tr. 27. Finally, the ALJ found Plaintiff’s October 2008 18 “admission” that he has problems working as a result of being lazy1 and September 19 2011 statement that he wished to get training to work were inconsistent with his 20 assertion of the presence of disabling physical or mental impairments. Tr. 28. 21 22 It is well-settled that a claimant need not “vegetate in a dark room” to be found disabled. Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987). Plaintiff’s 23 24 1 This report predates the relevant time period in this matter. Evidence from 25 outside of the relevant time period can be deemed useful as background 26 information; however, it is irrelevant to the extent that it does not address 27 claimant’s medical status during the relevant period at issue in this action. See 28 Fair v. Bowen, 885 F.2d 597, 600 (9th Cir. 1989). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 1 report that he watches TV, performs word search puzzles, is able to read the 2 newspaper and can perform simple math and indication he would like training in 3 order to work are not necessarily inconsistent with his description of functional 4 limitations. The ALJ’s assertion that these reports demonstrate inconsistencies 5 with Plaintiff’s allegations of disabling limitations is unfounded. 6 The ALJ next held that Plaintiff’s “active lifestyle” establishes he has the 7 capacity to perform work not inconsistent with the ALJ’s RFC determination. Tr. 8 27. Daily activities may be grounds for an adverse credibility finding if a claimant 9 is able to spend a substantial part of his day engaged in pursuits involving the 10 performance of physical functions that are transferable to a work setting. Orn v. 11 Astrue, 495 F.3d 625, 639 (9th Cir. 2007). 12 The ALJ cites to record evidence demonstrating Plaintiff is able to do 13 laundry, prepare meals and shop; spends his time walking around, doing odd jobs, 14 and helping his mother and her neighbors; assists his mother with her oxygen and 15 caring for her dog; is able to do laundry, prepare meals, wash dishes, and maintain 16 his personal finances; rides his bicycle and listens to the radio; lives by himself and 17 spends time at his mother’s house helping with chores and taking her to visit 18 friends; goes to his mother’s house to help her with chores and walks the dog; is 19 able to wash dishes and vacuum daily and do the laundry about once a week; is 20 able to cook from scratch and cook on a hibachi; is able to manage his own funds; 21 lives alone and spends time watching TV and doing word search puzzles; is able to 22 do the laundry and prepare simple meals; and retains the ability to visit his mother 23 and socialize with her neighbors. Tr. 26-27. 24 While it was not improper for the ALJ to consider Plaintiff’s level of activity 25 in this case when assessing his credibility, the Ninth Circuit has held that one does 26 not need to be “utterly incapacitated” to be disabled. Fair v. Bowen, 885 F.2d 597, 27 603 (9th Cir. 1989) (“claimant’s ability to engage in activities that were sporadic 28 and punctuated with rest, such as housework, occasional weekend trips, and some ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 1 exercise, do not support a finding that he can engage in regular work activities”). 2 Plaintiff’s reported daily activities are not necessarily inconsistent with his 3 description of limitations, and there is no evidence of record which shows that 4 Plaintiff is able to spend a substantial part of his day engaged in the performance of 5 work related functions. Moreover, Plaintiff has consistently indicated he lives 6 alone, helps his mother, is able to do household chores and spends time watching 7 TV and doing word puzzles. The Court finds Plaintiff’s consistency with reporting 8 these daily activities actually supports his credibility in this case. 9 The ALJ also indicated the record reflected noncompliance issues. Tr. 27. 10 Noncompliance with medical care or unexplained or inadequately explained 11 reasons for failing to seek medical treatment cast doubt on a claimant’s subjective 12 complaints. 20 C.F.R. §§ 404.1530, 426.930; Fair v. Bowen, 885 F.2d at 603. The 13 ALJ noted the record fails to show Plaintiff has sought or required significant 14 forms of treatment; Plaintiff has failed to comply with treatment by repeated no- 15 shows for mental health counseling; and Plaintiff’s irregular use of Prozac is 16 inconsistent with his allegations of disabling symptoms. Tr. 27. The ALJ stated 17 Plaintiff’s limited use of Prozac suggested his symptoms of depression have been 18 controlled and Plaintiff has admitted his anxiety has been controlled without the 19 use of Vistaril. Tr. 27. 20 The Ninth Circuit has held that a lack of mental health treatment is a 21 questionable basis on which to reject a claim of a mental impairment. Nguyen v. 22 Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (finding “it is a questionable practice 23 to chastise one with a mental impairment for the exercise of poor judgment in 24 seeking rehabilitation”) (citation and inner quotation marks omitted). Furthermore, 25 pursuant to SSR 96-7, an ALJ must not draw an adverse inference from a 26 claimant’s failure to seek or pursue treatment “without first considering any 27 explanations that the individual may provide, or other information in the case 28 record, that may explain infrequent or irregular medical visits or failure to seek ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 1 medical treatment.” SSR 96-7; see also Dean v. Astrue, 2009 WL 2241333 (E.D. 2 Wash. 2009) (noting “the SSR regulations direct the ALJ to question a claimant at 3 the administrative hearing to determine whether there are good reasons for not 4 pursuing medical treatment in a consistent manner”). Here, the ALJ sought no 5 explanation for Plaintiff’s lack of significant mental health treatment. 6 The effectiveness of medication in alleviating pain and other symptoms is a 7 relevant factor to consider in evaluating the severity of a claimant’s symptoms. 20 8 C.F.R. § 416.929(c)(3). However, as noted by Plaintiff, the record shows that 9 Plaintiff had difficulty tolerating the side effects of the mental health medication, 10 Tr. 60, 419, and the ALJ’s implication that Plaintiff’s condition stabilized with 11 medication is belied by the record, Tr. 370 (stating Prozac was only “somewhat” 12 effective). ECF No. 15 at 13. In this case, the issue of medication effectiveness is 13 unresolved. 14 Lastly, the ALJ indicated the objective medical evidence of record does not 15 support Plaintiff’s disability assertions. Tr. 28. A lack of supporting objective 16 medical evidence is a factor which may be considered in evaluating a claimant’s 17 credibility, provided it is not the sole factor. Bunnell v. Sullivan, 347 F.2d 341, 18 345 (9th Cir. 1991). Here, as noted by Plaintiff, ECF No. 17 at 2-4, every mental 19 health care professional of record has indicated Plaintiff has mental limitations 20 which adversely affect his ability to perform work related activities. See infra. 21 Plaintiff’s allegations of functional limitations are not unsubstantiated by the 22 objective evidence of record. 23 The ALJ is responsible for reviewing the evidence and resolving conflicts or 24 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 25 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 26 evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 27 determining whether the ALJ’s decision is supported by substantial evidence and 28 may not substitute its own judgment for that of the ALJ even if it might justifiably ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10 1 have reached a different result upon de novo review. 42 U.S.C. § 405(g). 2 Nevertheless, based on the foregoing, the Court concludes that the rationale 3 provided by the ALJ for discrediting Plaintiff is not clear and convincing. The 4 Court thus finds that a remand for a proper credibility determination is necessary in 5 this case. 6 B. 7 Medical Opinion Evidence Plaintiff contends the ALJ also erred by failing to properly consider and 8 weigh the medical opinion evidence. ECF No. 15 at 15-18. Plaintiff argues the 9 ALJ failed to properly consider the October 2008 and September 2009 opinions of 10 Kayleen Islam-Zwart, Ph.D., and improperly afforded “no significant weight” to 11 the opinions of R. Renee Eisenhauer, Ph.D., and W. Scott Mabee, Ph.D. Id. 12 On October 3, 2008,2 Dr. Islam-Zwart examined Plaintiff and completed a 13 Psychological/Psychiatric Evaluation form. Tr. 358-365. Dr. Islam-Zwart 14 assessed moderate, marked and severe functional limitations, Tr. 360, and 15 indicated Plaintiff continued to exhibit cognitive difficulties, Tr. 363. Dr. Islam- 16 Zwart indicated Plaintiff’s interpersonal presentation and cognitive impairments 17 caused Plaintiff to be unable to work in a regular manner and opined “it is highly 18 improbable he would be able to [work] at any point in the future.” Tr. 365. The 19 ALJ afforded Dr. Islam-Zwart’s October 3, 2008 opinion “no significant weight.” 20 Tr. 31. 21 Dr. Islam-Zwart performed another evaluation of Plaintiff on September 18, 22 2009. Tr. 418-428. Dr. Islam-Zwart again assessed moderate, marked and severe 23 functional limitations, Tr. 426, and noted Plaintiff continued “to present as odd and 24 socially and cognitively impaired,” Tr. 421. Dr. Islam-Zwart opined that Plaintiff 25 26 2 This report predates the relevant time period in this matter. As indicated 27 above, evidence from outside the relevant time period is of limited relevance. See 28 Fair v. Bowen, 885 F.2d at 600. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11 1 “continues to be unable to work in a regular and sustained fashion and his 2 prognosis for future change is poor.” Tr. 421. The ALJ also afforded this opinion 3 “no significant weight.” Tr. 31. 4 On October 28, 2008, R. Renee Eisenhauer, Ph.D., approved Plaintiff’s 5 claim for public assistance based on Section 12.08 (personality disorders). Tr. 417. 6 The ALJ afforded Dr. Eisenhauer’s report “no significant weight” because it was 7 based on Dr. Islam-Zwart’s rejected assessments. Tr. 31. 8 9 W. Scott Mabee, Ph.D., completed Psychological/Psychiatric Evaluation forms on January 27, 2011, Tr. 466-470, and December 6, 2011, Tr. 518-525. Dr. 10 Mabee assessed several moderate and marked functional limitations but opined 11 that Plaintiff was capable of understanding and carrying out simple, repetitive 12 instructions and completing simple tasks if closely supervised. Tr. 468-469, 519. 13 The ALJ assigned “no significant weight” to Dr. Mabee’s assessed limitations, but 14 gave “some weight” to his opinion that Plaintiff could understand and carry out 15 simple instructions, concentrate for short periods and work best in positions that 16 have minimal contact with others. Tr. 31-32. 17 As determined above, in light of the ALJ’s erroneous credibility 18 determination, this matter will be remanded for additional proceedings. On 19 remand, the ALJ shall reconsider Plaintiff’s statements and testimony. The ALJ 20 shall additionally reassess Plaintiff’s RFC, taking into consideration the medical 21 opinions of Dr. Islam-Zwart, Tr. 358-365, 418-428, the October 28, 2008 report of 22 Dr. Eisenhauer, Tr. 417, the Psychological/Psychiatric Evaluation forms completed 23 by Dr. Mabee on January 27, 2011, Tr. 466-470, and December 6, 2011, Tr. 518- 24 525, and all other medical evidence of record relevant to Plaintiff’s claim for 25 disability benefits. In addition, the ALJ shall direct Plaintiff to undergo a new 26 consultative psychological examination. If warranted, the ALJ shall elicit the 27 testimony of a medical expert to assist the ALJ in formulating a new RFC 28 determination. The ALJ shall present the new RFC assessment to a vocational ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12 1 expert to help determine whether Plaintiff is capable of performing any work 2 existing in sufficient numbers in the national economy. 3 CONCLUSION Plaintiff argues the ALJ’s decision should be reversed and remanded for an 4 5 immediate award benefits. The Court has the discretion to remand the case for 6 additional evidence and findings or to award benefits. Smolen, 80 F.3d at 1292. 7 The Court may award benefits if the record is fully developed and further 8 administrative proceedings would serve no useful purpose. Id. Remand is 9 appropriate when additional administrative proceedings could remedy defects. 10 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 11 finds that further development is necessary for a proper determination to be made. On remand, the ALJ shall reexamine Plaintiff’s statements and testimony 12 13 and reassess Plaintiff’s RFC, taking into consideration the opinions of Drs. Islam- 14 Zwart, Eisenhauer, and Mabee, and all other medical evidence of record relevant to 15 Plaintiff’s claim for disability benefits. The ALJ shall develop the record further 16 by requiring Plaintiff to undergo a new consultative psychological examination 17 prior to a new administrative hearing and, if warranted, by eliciting the testimony 18 of a medical expert to assist the ALJ in formulating a new RFC determination. 19 The ALJ shall obtain supplemental testimony from a vocational expert and take 20 into consideration any other evidence or testimony relevant to Plaintiff’s disability 21 claim. 22 Accordingly, IT IS ORDERED: 23 1. 24 25 26 27 28 Plaintiff’s Motion for Summary Judgment, ECF No. 15, is GRANTED, in part. 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 13 1 4. An application for attorney fees may be filed by separate motion. 2 The District Court Executive is directed to file this Order and provide copies 3 to counsel. Judgment shall be entered in favor of Plaintiff, and the file shall be 4 CLOSED. 5 DATED May 18, 2015. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 14

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.