Barnett-Harrell v. Kijakazi, No. 2:2020cv00306 - Document 27 (E.D. Wash. 2021)

Court Description: ORDER GRANTING 24 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 25 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. This matter is REVERSED and REMANDED to the Commissioner of Social Security for further proceedings consistent with this recommendation pursuant to sentence four of 42 U.S.C. § 405(g). This file is CLOSED. Signed by Magistrate Judge Mary K. Dimke. (CLP, Case Administrator)

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Barnett-Harrell v. Kijakazi Doc. 27 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.648 Page 1 of 32 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Oct 08, 2021 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ANGELIA B.,1 No. 2:20-cv-00306-MKD Plaintiff, 8 vs. 9 KILOLO KIJAKAZI, ACTING 10 COMMISSIONER OF SOCIAL SECURITY,2 11 Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 24, 25 12 13 14 1 To protect the privacy of plaintiffs in social security cases, the undersigned 15 identifies them by only their first names and the initial of their last names. See 16 LCivR 5.2(c). 17 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 18 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 19 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 20 action need be taken to continue this suit. See 42 U.S.C. § 405(g). 2 ORDER - 1 Dockets.Justia.com Case 2:20-cv-00306-MKD 1 ECF No. 27 filed 10/08/21 PageID.649 Page 2 of 32 Before the Court are the parties’ cross-motions for summary judgment. ECF 2 Nos. 24, 25. The parties consented to proceed before a magistrate judge. ECF No. 3 7. The Court, having reviewed the administrative record and the parties’ briefing, 4 is fully informed. For the reasons discussed below, the Court grants Plaintiff’s 5 motion, ECF No. 24, and denies Defendant’s motion, ECF No. 25. 6 7 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 8 9 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 10 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 11 limited; the Commissioner’s decision will be disturbed “only if it is not supported 12 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 13 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 14 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 15 (quotation and citation omitted). Stated differently, substantial evidence equates to 16 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 17 citation omitted). In determining whether the standard has been satisfied, a 18 reviewing court must consider the entire record as a whole rather than searching 19 for supporting evidence in isolation. Id. 20 2 ORDER - 2 Case 2:20-cv-00306-MKD 1 ECF No. 27 filed 10/08/21 PageID.650 Page 3 of 32 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 3 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 4 rational interpretation, [the court] must uphold the ALJ’s findings if they are 5 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 6 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 7 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 8 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 9 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 10 decision generally bears the burden of establishing that it was harmed. Shinseki v. 11 Sanders, 556 U.S. 396, 409-10 (2009). 12 13 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 14 the meaning of the Social Security Act. First, the claimant must be “unable to 15 engage in any substantial gainful activity by reason of any medically determinable 16 physical or mental impairment which can be expected to result in death or which 17 has lasted or can be expected to last for a continuous period of not less than twelve 18 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 19 “of such severity that he is not only unable to do his previous work[,] but cannot, 20 considering his age, education, and work experience, engage in any other kind of 2 ORDER - 3 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.651 Page 4 of 32 1 substantial gainful work which exists in the national economy.” 42 U.S.C. § 2 1382c(a)(3)(B). 3 The Commissioner has established a five-step sequential analysis to 4 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 5 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 6 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 7 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 8 C.F.R. § 416.920(b). 9 If the claimant is not engaged in substantial gainful activity, the analysis 10 proceeds to step two. At this step, the Commissioner considers the severity of the 11 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 12 “any impairment or combination of impairments which significantly limits [his or 13 her] physical or mental ability to do basic work activities,” the analysis proceeds to 14 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 15 this severity threshold, however, the Commissioner must find that the claimant is 16 not disabled. Id. 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. § 20 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 2 ORDER - 4 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.652 Page 5 of 32 1 enumerated impairments, the Commissioner must find the claimant disabled and 2 award benefits. 20 C.F.R. § 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. § 8 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 9 At step four, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing work that he or she has performed in 11 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 12 capable of performing past relevant work, the Commissioner must find that the 13 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 14 performing such work, the analysis proceeds to step five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 18 must also consider vocational factors such as the claimant’s age, education and 19 past work experience. Id. If the claimant is capable of adjusting to other work, the 20 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 2 ORDER - 5 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.653 Page 6 of 32 1 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis 2 concludes with a finding that the claimant is disabled and is therefore entitled to 3 benefits. Id. 4 The claimant bears the burden of proof at steps one through four above. 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 6 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 7 capable of performing other work; and (2) such work “exists in significant 8 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 9 700 F.3d 386, 389 (9th Cir. 2012). 10 ALJ’S FINDINGS 11 On September 18, 2017, Plaintiff applied for Title XVI supplemental 12 security income benefits alleging a disability onset date of July 2, 2010.3 Tr. 16, 13 85, 237-43. The application was denied initially, and on reconsideration. Tr. 10714 15, 116-22. Plaintiff appeared before an administrative law judge (ALJ) on 15 December 5, 2019. Tr. 33-67. On December 26, 2019, the ALJ denied Plaintiff’s 16 claim. Tr. 13-30. 17 18 3 Plaintiff previously applied for Title XVI benefits on three occasions, resulting in 19 initial denials on December 6, 2007, September 16, 2010, and June 16, 2015; 20 Plaintiff did not appeal the denials. Tr. 269-70. 2 ORDER - 6 Case 2:20-cv-00306-MKD 1 ECF No. 27 filed 10/08/21 PageID.654 Page 7 of 32 At step one of the sequential evaluation process, the ALJ found Plaintiff has 2 not engaged in substantial gainful activity since September 18, 2017. Tr. 18. At 3 step two, the ALJ found that Plaintiff has the following severe impairments: 4 fibromyalgia, degenerative disc disease of the cervical spine, facet disease of the 5 lumbar spine, depressive disorder, mild anxiety disorder, and post-traumatic stress 6 disorder. Id. 7 At step three, the ALJ found Plaintiff does not have an impairment or 8 combination of impairments that meets or medically equals the severity of a listed 9 impairment. Tr. 19. The ALJ then concluded that Plaintiff has the RFC to perform 10 light work with the following limitations: 11 12 13 14 15 She can perform all posturals frequently, except she can never climb ladders, ropes, or scaffolds. She must avoid concentrated exposure to extreme cold, humidity, vibration, respiratory irritants, and all hazards. She is able to understand, remember, and carry out simple, routine tasks and semi-skilled tasks; she is able to maintain concentration, persistence, and pace for two hour intervals between regularly scheduled breaks throughout an eight-hour workday; she can have simple changes; she can make routine decisions; there should be no fast paced production rate of pace; interaction with the public can occur, but it needs to be limited to superficial. 16 Tr. 20. 17 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 25. At 18 step five, the ALJ found that, considering Plaintiff’s age, education, work 19 experience, RFC, and testimony from the vocational expert, there were jobs that 20 existed in significant numbers in the national economy that Plaintiff could perform, 2 ORDER - 7 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.655 Page 8 of 32 1 such as mail clerk, hand packager, and small products assembler. Id. Therefore, 2 the ALJ concluded Plaintiff was not under a disability, as defined in the Social 3 Security Act, from the date of the application through the date of the decision. Tr. 4 26. 5 On June 25, 2020, the Appeals Council denied review of the ALJ’s decision, 6 Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for purposes 7 of judicial review. See 42 U.S.C. § 1383(c)(3). 8 9 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 10 her supplemental security income benefits under Title XVI of the Social Security 11 Act. Plaintiff raises the following issues for review: 12 1. Whether the ALJ properly evaluated the medical opinion evidence; 13 2. Whether the ALJ conducted a proper step-three analysis; 14 3. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 15 4. Whether the ALJ conducted a proper step-five analysis. 16 ECF No. 24 at 5-6. 17 18 19 20 2 ORDER - 8 Case 2:20-cv-00306-MKD 1 2 3 ECF No. 27 filed 10/08/21 PageID.656 Page 9 of 32 DISCUSSION A. Medical Opinion Evidence Plaintiff contends the ALJ erred in her consideration of the opinions of 4 Rebecca Alexander, Ph.D.; Joyce Everhart, Ph.D.; and Lawrence Garges, M.D. 5 ECF No. 24 at 8-15. 6 As an initial matter, for claims filed on or after March 27, 2017, new 7 regulations apply that change the framework for how an ALJ must evaluate 8 medical opinion evidence. Revisions to Rules Regarding the Evaluation of 9 Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 10 C.F.R. § 416.920c. The new regulations provide that the ALJ will no longer “give 11 any specific evidentiary weight…to any medical opinion(s)…” Revisions to Rules, 12 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 13 416.920c(a). Instead, an ALJ must consider and evaluate the persuasiveness of all 14 medical opinions or prior administrative medical findings from medical sources. 15 20 C.F.R. § 416.920c(a) and (b). The factors for evaluating the persuasiveness of 16 medical opinions and prior administrative medical findings include supportability, 17 consistency, relationship with the claimant (including length of the treatment, 18 frequency of examinations, purpose of the treatment, extent of the treatment, and 19 the existence of an examination), specialization, and “other factors that tend to 20 support or contradict a medical opinion or prior administrative medical finding” 2 ORDER - 9 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.657 Page 10 of 32 1 (including, but not limited to, “evidence showing a medical source has familiarity 2 with the other evidence in the claim or an understanding of our disability 3 program’s policies and evidentiary requirements”). 20 C.F.R. § 416.920c(c)(1)4 (5). 5 Supportability and consistency are the most important factors, and therefore 6 the ALJ is required to explain how both factors were considered. 20 C.F.R. § 7 416.920c(b)(2). Supportability and consistency are explained in the regulations: 8 9 10 11 12 13 14 15 16 17 18 19 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 20 C.F.R. § 416.920c(c)(1)-(2). The ALJ may, but is not required to, explain how the other factors were considered. 20 C.F.R. § 416.920c(b)(2). However, when two or more medical opinions or prior administrative findings “about the same issue are both equally well-supported ... and consistent with the record ... but are not exactly the same,” the ALJ is required to explain how “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. § 416.920c(b)(3). 20 2 ORDER - 10 Case 2:20-cv-00306-MKD 1 ECF No. 27 filed 10/08/21 PageID.658 Page 11 of 32 The parties disagree over whether Ninth Circuit case law continues to be 2 controlling in light of the amended regulations, specifically whether the “clear and 3 convincing” and “specific and legitimate” standards still apply. ECF No. 24 at 8; 4 ECF No. 25 at 4-9. “It remains to be seen whether the new regulations will 5 meaningfully change how the Ninth Circuit determines the adequacy of [an] ALJ’s 6 reasoning and whether the Ninth Circuit will continue to require that an ALJ 7 provide ‘clear and convincing’ or ‘specific and legitimate reasons’ in the analysis 8 of medical opinions, or some variation of those standards.” Gary T. v. Saul, No. 9 EDCV 19-1066-KS, 2020 WL 3510871, at *3 (C.D. Cal. June 29, 10 2020) (citing Patricia F. v. Saul, No. C19-5590-MAT, 2020 WL 1812233, at *3 11 (W.D. Wash. Apr. 9, 2020)). “Nevertheless, the Court is mindful that it must defer 12 to the new regulations, even where they conflict with prior judicial precedent, 13 unless the prior judicial construction ‘follows from the unambiguous terms of the 14 statute and thus leaves no room for agency discretion.’” Gary T., 2020 WL 15 3510871, at *3 (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet 16 Services, 545 U.S. 967, 981-82 (2005); Schisler v. Sullivan, 3 F.3d 563, 567-58 (2d 17 Cir. 1993) (“New regulations at variance with prior judicial precedents are upheld 18 unless ‘they exceeded the Secretary’s authority [or] are arbitrary and 19 capricious.’”). 20 2 ORDER - 11 Case 2:20-cv-00306-MKD 1 ECF No. 27 filed 10/08/21 PageID.659 Page 12 of 32 There is not a consensus among the district courts as to whether the “clear 2 and convincing” and “specific and legitimate” standards continue to apply. See, 3 e.g., Kathleen G. v. Comm’r of Soc. Sec., 2020 WL 6581012, at *3 (W.D. Wash. 4 Nov. 10, 2020) (applying the specific and legitimate standard under the new 5 regulations); Timothy Mitchell B., v. Kijakazi, 2021 WL 3568209, at *5 (C.D. Cal. 6 Aug. 11, 2021) (stating the court defers to the new regulations); Agans v. Saul, 7 2021 WL 1388610, at *7 (E.D. Cal. Apr. 13, 2021) (concluding that the new 8 regulations displace the treating physician rule and the new regulations control); 9 Madison L. v. Kijakazi, No. 20-CV-06417-TSH, 2021 WL 3885949, at *4-6 (N.D. 10 Cal. Aug. 31, 2021) (applying only the new regulations and not the specific and 11 legitimate nor clear and convincing standard). For the sake of consistency in this 12 District, the Court adopts the rationale and holding articulated on the issue in 13 Emilie K. v. Saul, No. 2:20-cv-00079-SMJ, 2021 WL 864869, *3-4 (E.D. Wash. 14 Mar. 8, 2021), appeal docketed, No. 21-35360 (9th Cir. May 10, 2021). In Emilie 15 K., this Court held that the ALJ did not err in applying the new regulations over 16 Ninth Circuit precedent, because the result did not contravene the Administrative 17 Procedure Act’s requirement that decisions include a statement of “findings and 18 conclusions, and the reasons or basis therefor, on all the material issues of fact, 19 law, or discretion presented on the record.” Id. at *4 (citing 5 U.S.C. § 557(c)(A)). 20 This rationale has been adopted in other cases with this Court. See, e.g., Jeremiah 2 ORDER - 12 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.660 Page 13 of 32 1 F. v. Kijakazi, No. 2:20-CV-00367-SAB, 2021 WL 4071863, at *5 (E.D. Wash. 2 Sept. 7, 2021). Nevertheless, it is not clear that the Court’s analysis in this matter 3 would differ in any significant respect under the specific and legitimate standard 4 set forth in Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 5 1. Dr. Alexander 6 On June 9, 2015, Dr. Alexander conducted a psychological consultative 7 examination and rendered an opinion on Plaintiff’s functioning. Tr. 339-44. Dr. 8 Alexander diagnosed Plaintiff with severe major depressive disorder, chronic 9 PTSD, and ADHD by history. Tr. 343. Dr. Alexander opined Plaintiff’s recent 10 and immediate memory were below normal limits and her abstract thinking was 11 slightly below normal limits; her ability to understand and remember instructions is 12 mildly impaired; her ability to sustain concentration, persist, and interact 13 appropriately in the workplace is markedly impaired, and her functioning was 14 otherwise within normal limits. Tr. 344. The ALJ found Dr. Alexander’s opinion 15 was not persuasive. Tr. 24. 16 First, the ALJ found Dr. Alexander’s opinion was not supported by her own 17 objective findings. Id. Supportability is one of the most important factors an ALJ 18 must consider when determining how persuasive a medical opinion is. 20 C.F.R. § 19 416.920c(b)(2). The more relevant objective evidence and supporting explanations 20 that support a medical opinion, the more persuasive the medical opinion is. 20 2 ORDER - 13 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.661 Page 14 of 32 1 C.F.R. § 416.920c(c)(1). The ALJ noted that Plaintiff could perform serial sevens, 2 basic subtraction, and could recall one of three objects after a delay. Tr. 24 (citing 3 Tr. 343). Dr. Alexander opined Plaintiff had marked limitations in her ability 4 concentrate, persist, and interact appropriately, and stated Plaintiff’s recent and 5 immediate memory were below normal limits, she had a severely depressed mood, 6 her thought processes were “only moderately intact,” she had difficulty recalling 7 dates, and she occasionally needed questions explained and repeated. Tr. 340, 344. 8 Plaintiff was also cooperative, alert, and moderately pleasant, with normal eye 9 contact and speech, and Dr. Alexander stated Plaintiff’s remote memory, fund of 10 information, ability to calculate math problems, and judgement were all normal. 11 Tr. 339-40, 342-43. While Plaintiff offers an alternative interpretation of Dr. 12 Alexander’s examination results, ECF No. 24 at 11, the Court may not reverse the 13 ALJ’s decision based on Plaintiff’s disagreement with the ALJ’s interpretation of 14 the record. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 15 (“[W]hen the evidence is susceptible to more than one rational interpretation” the 16 court will not reverse the ALJ’s decision). The ALJ’s finding that Dr. Alexander’s 17 opinion was not supported by her examination results is reasonable and supported 18 by substantial evidence. Further, any error is harmless as the ALJ gave other 19 supported reasons to reject the opinion. See Molina, 674 F.3d at 1115. 20 2 ORDER - 14 Case 2:20-cv-00306-MKD 1 ECF No. 27 filed 10/08/21 PageID.662 Page 15 of 32 Second, the ALJ found Dr. Alexander’s opinion was based on a single 2 evaluation that took place two years before the relevant adjudicative period. Tr. 3 24. An ALJ may consider whether new evidence received after the medical source 4 rendered his or her medical opinion impacts the persuasiveness of the opinion. 20 5 C.F.R. § 416.920c(5). Plaintiff alleges disability beginning on July 2, 2010, 6 however the relevant adjudicative period is from September 18, 2017 onward, thus 7 Dr. Alexander rendered her opinion more than two years prior to the relevant 8 period. Further, the ALJ reasonably found that the later evidence received after 9 Dr. Alexander rendered her opinion is inconsistent with Dr. Alexander’s opinion, 10 as discussed infra. Thus, the ALJ’s finding that Dr. Alexander’s opinion is less 11 persuasive because it was rendered two years prior to the relevant period is 12 supported by substantial evidence. 13 Third, the ALJ found Dr. Alexander’s opinion was inconsistent with the 14 medical evidence from other sources. Tr. 24. Consistency is one of the most 15 important factors an ALJ must consider when determining how persuasive a 16 medical opinion is. 20 C.F.R. § 416.920c(b)(2). The more consistent an opinion is 17 with medical evidence from other sources, the more persuasive the medical 18 opinion is. 20 C.F.R. § 416.920c(c)(2). The ALJ found the medical records 19 consistently document unremarkable findings on mental status examination. Tr. 24 20 (citing Tr. 365, 419, 426, 432, 457, 470, 497, 503, 508). Plaintiff argues the ALJ’s 2 ORDER - 15 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.663 Page 16 of 32 1 citations are inaccurate as they contain abnormalities on examination. ECF No. 24 2 at 10. The cited records indicate Plaintiff had many normal findings, including 3 normal mood, attitude, movement, appearance, orientation, eye contact, 4 presentation, attention, calculation/recall, speech, and memory, and Plaintiff was 5 noted as cooperative. Tr. 365, 419, 426, 432, 439, 449, 457, 469-70, 497, 503, 6 508. There are also some documented abnormalities, including Plaintiff behaving 7 in a frightened manner, with a sad, depressed, anxious, and fearful mood, and 8 constricted and potentially dissociative affect, with only fair memory/general 9 knowledge, distractible thoughts, short attention span, unmotivated behavior, and 10 suicidal ideation. Tr. 365, 489-90, 503, 508. Plaintiff denied depression, anxiety, 11 and hopelessness at multiple appointments. Tr. 424, 430, 437, 447, 495. While 12 Plaintiff again offers a differing interpretation of the record, ECF No. 24 at 10-11, 13 the ALJ’s finding that Dr. Alexander’s opinion is inconsistent with the objective 14 medical evidence is supported by substantial evidence. 15 2. Dr. Everhart 16 On December 27, 2017, Dr. Everhart conducted a psychological consultative 17 examination and rendered an opinion on Plaintiff’s functioning. Tr. 459-64. Dr. 18 Everhart diagnosed Plaintiff with recurrent major depressive disorder; unspecified 19 anxiety disorder; attention deficit hyperactivity disorder; substance abuse disorder 20 (methamphetamine) in remission per self-report; unspecified personality disorder 2 ORDER - 16 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.664 Page 17 of 32 1 with antisocial and borderline features; and provisional diagnosis of unspecified 2 neurocognitive disorder. Tr. 464. Dr. Everhart opined Plaintiff’s functioning, 3 including her attention, concentration, intellectual ability, and persistence, were 4 within normal limits, but stated Plaintiff “does have serious symptoms in 5 occupational and social [realms].” Tr. 463-64. The ALJ found Dr. Everhart’s 6 opinion was somewhat persuasive.4 Tr. 23. 7 First, the ALJ found Dr. Everhart’s opinion was vague. Id. The more 8 relevant the supporting explanation presented by a source is to their opinion, the 9 more persuasive the opinion will be. 20 C.F.R. § 416.920c(c)(1). Dr. Everhart 10 only opined that Plaintiff has serious symptoms in the occupational and social 11 realms. Tr. 464. Dr. Everhart did not state what functional limitations the 12 symptoms cause. The rest of Dr. Everhart’s summary outlines a largely normal 13 mental status examination and does not offer any clarification on Plaintiff’s 14 15 4 Plaintiff argues the ALJ failed to address evidence from Dr. Everhart, ECF No. 16 24 at 4-5, and argues the evidence from Dr. Everhart was consistent with Dr. 17 Alexander’s opinion, thus the Court has addressed the ALJ’s analysis of Dr. 18 Everhart’s opinion despite Plaintiff waiving the issue due to the failure to address 19 any of the reasons offered by the ALJ to reject Dr. Everhart’s opinion. See 20 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). 2 ORDER - 17 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.665 Page 18 of 32 1 functional limitations. Tr. 463-64. Plaintiff argues Dr. Everhart’s examination and 2 opinion is consistent with Dr. Alexander’s, as Dr. Everhart found Plaintiff was 3 depressed, tearful, and somewhat anxious, with a low delayed memory score. ECF 4 No. 24 at 4. Despite Plaintiff’s abnormal mood, affect, and delayed memory score, 5 Plaintiff’s examination was otherwise normal, and the examination does not 6 provide any additional information on what Dr. Everhart believed Plaintiff’s 7 serious symptoms were or how they limited her. As such, the ALJ’s finding that 8 Dr. Everhart’s opinion was vague is supported by substantial evidence. 9 Second, the ALJ found Dr. Everhart’s examination findings did not support 10 her opinion. Tr. 23. Supportability is one of the most important factors an ALJ 11 must consider when determining how persuasive a medical opinion is. 20 C.F.R. § 12 416.920c(b)(2). The more relevant objective evidence and supporting explanations 13 that support a medical opinion, the more persuasive the medical opinion is. 20 14 C.F.R. § 416.920c(c)(1). The ALJ noted Dr. Everhart’s examination documented 15 Plaintiff’s normal attention, intellectual ability, concentration, persistence, pace, 16 and normal scores on the Trail Making tests. Tr. 23. Dr. Everhart also stated 17 Plaintiff had normal speech, fair eye contact, and Plaintiff reported being able to 18 handle chores and personal care. Tr. 463-64. The ALJ noted there were 19 examination findings suggestive of limitations, but the findings did not support any 20 limitations greater than those accounted for in the RFC. Tr. 23. The ALJ’s finding 2 ORDER - 18 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.666 Page 19 of 32 1 that Dr. Everhart’s opinion is not supported by the examination findings is 2 supported by substantial evidence. 3 Third, the ALJ found Dr. Everhart’s opinion was inconsistent with the 4 unremarkable findings documented by other providers. Tr. 23. Consistency is one 5 of the most important factors an ALJ must consider when determining how 6 persuasive a medical opinion is. 20 C.F.R. § 416.920c(b)(2). The more consistent 7 an opinion is with medical evidence from other sources, the more persuasive the 8 medical opinion is. 20 C.F.R. § 416.920c(c)(2). As discussed supra, the medical 9 records largely contain normal mental status examinations and reports from 10 Plaintiff that she was not experiencing mental health symptoms. As such, the 11 ALJ’s finding that Dr. Everhart’s opinion is inconsistent with the longitudinal 12 record is supported by substantial evidence. 13 Further, any error in the ALJ’s consideration of Dr. Everhart’s opinion 14 would be harmless. Dr. Everhart did not set forth any specific functional 15 limitations, thus the ALJ’s failure to include Dr. Everhart’s opinion in the RFC 16 would not have any impact on the RFC, and any error is harmless. See Molina, 17 674 F.3d at 1115. 18 3. Dr. Garges 19 On January 24, 2018, Dr. Garges performed a physical consultative 20 examination and rendered an opinion on Plaintiff’s functioning. Tr. 466-76. Dr. 2 ORDER - 19 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.667 Page 20 of 32 1 Garges listed Plaintiff’s subjective complaints, which included arthritis and 2 fibromyalgia, but did not provide any diagnoses. Tr. 466. Dr. Garges opined 3 Plaintiff could sit 20 minutes at a time for a total of two hours in a workday; stand 4 for 20 minutes at a time for a total of two hours in a workday; walk 10 minutes at a 5 time for a total of one hour in a workday; lift/carry up to 20 pounds occasionally 6 “not very far, long”; occasionally reach, handle, feel, grasp, and finger; and she has 7 limitations in bending/stooping, crouching, turning at the waist, reaching behind 8 her, and in her ability to handle exposure to “temperature, noise, heights, etc.” Tr. 9 474. While the ALJ found Dr. Garges’ opinion was persuasive, the ALJ did not 10 fully incorporate Dr. Garges’ opinion into the RFC. 5 Tr. 23-24. 11 First, the ALJ found Dr. Garges’ opinion was not supported by his 12 examination findings. Id. Supportability is one of the most important factors an 13 14 5 Defendant argues the ALJ intended to write that Dr. Garges’ opinion is not 15 persuasive, and that the sentence stating Dr. Garges’ opinion is persuasive is 16 clearly a typographical error given the ALJ’s analysis of the evidence and opinion. 17 ECF No. 25 at 13. However, the ALJ summarized both evidence that supports and 18 detracts from Dr. Garges’ opinion, the ALJ did not give reasons to reject portions 19 of Dr. Garges’ opinion, and the ALJ incorporated portions of Dr. Garges’ opinion 20 into the RFC, thus the Court cannot find it is clearly a typographical error. 2 ORDER - 20 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.668 Page 21 of 32 1 ALJ must consider when determining how persuasive a medical opinion is. 20 2 C.F.R. § 416.920c(b)(2). The more relevant objective evidence and supporting 3 explanations that support a medical opinion, the more persuasive the medical 4 opinion is. 20 C.F.R. § 416.920c(c)(1). The ALJ found that while Dr. Garges 5 opined Plaintiff could only engage in occasional manipulative activities, this was 6 inconsistent with Plaintiff’s ability to make a fist, oppose her fingers, pinch, grasp, 7 and manipulate both large and small objects without difficulty. Tr. 24 (citing Tr. 8 473). Plaintiff also had normal range of motion in her elbows, wrists, and hands. 9 Tr. 472. While Dr. Granges opined Plaintiff had multiple postural limitations, the 10 ALJ noted Plaintiff had symmetrical strength, normal sensation and reflexes, and 11 full range of motion except in her neck. Tr. 24, 470-73. However, Plaintiff also 12 had a “hesitant gait pattern,” was unable to squat and rise with ease, was unable to 13 walk on heels and toes and to hop on one foot, had some palpable muscle spasms 14 in her neck and low back, a limited straight leg test, difficulty rising from a seated 15 position and getting on and off the examination table, and her strength ranged from 16 a 3 to 5, with 5 being normal. Tr. 470-71. 17 While the ALJ pointed to specific examination findings that were 18 inconsistent with the manipulative limitations, the ALJ’s analysis does not explain 19 why the ALJ rejected Dr. Garges’ opinion that Plaintiff can only sit for two hours, 20 stand for two hours, and walk for one hour in a workday, and engage in postural 2 ORDER - 21 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.669 Page 22 of 32 1 activities only occasionally. Tr. 23-24. The ALJ found Dr. Garges’ opinion was 2 inconsistent with the examination, which documented only “mild-to-moderate 3 findings,” but the ALJ did not discuss Plaintiff’s abnormal gait, and the other 4 abnormal findings discussed supra. Tr. 24. Further, the ALJ did not consider the 5 unique nature of fibromyalgia and did not discuss SSR 12-2p. See SSR 12-2p, 6 2012 WL 3104869 (effective July 25, 2012). Fibromyalgia is a disease that eludes 7 objective measurement. Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). 8 “[A] person with fibromyalgia may have ‘muscle strength, sensory functions, and 9 reflexes [that] are normal.’” Revels v. Berryhill, 874 F.3d 648, 663 (9th Cir. 2017). 10 Normal objective examination results can be “perfectly consistent with debilitating 11 fibromyalgia.” Id. at 666. Here, the ALJ rejected Dr. Garges’ opinion as 12 inconsistent with the medical evidence, including normal sensation and reflexes, 13 with no analysis of Plaintiff’s fibromyalgia. Tr. 24. The ALJ’s finding that Dr. 14 Garges’ opinion was inconsistent with the examination is not supported by 15 substantial. 16 Second, the ALJ found Dr. Garges’ opinion was inconsistent with the 17 objective evidence from other sources. Tr. 23. Consistency is one of the most 18 important factors an ALJ must consider when determining how persuasive a 19 medical opinion is. 20 C.F.R. § 416.920c(b)(2). The more consistent an opinion is 20 with medical evidence from other sources, the more persuasive the medical 2 ORDER - 22 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.670 Page 23 of 32 1 opinion is. 20 C.F.R. § 416.920c(c)(2). The ALJ found Dr. Garges’ opinion was 2 inconsistent with the repeatedly normal findings on physical examination and 3 mild-to-moderate findings on medical imaging. Tr. 24 (citing Tr. 377, 419, 426, 4 497, 502, 508, 478). The cited records document Plaintiff having normal reflexes, 5 strength, sensation, and gait, and imaging of the back found L3 anterior 6 subluxation but otherwise normal findings. Tr. 377, 419, 426, 478, 497, 502, 508. 7 Medical records also document Plaintiff having a limp when ambulating, a positive 8 straight leg raise test, and reports of symptoms associated with fibromyalgia, 9 including fatigue/daytime sleepiness, impaired sleep, pain, anxiety, memory loss, 10 and depression, and a need to increase Plaintiff’s gabapentin to treat her 11 fibromyalgia. Tr. 342, 366-69, 376, 389, 432, 449, 453, 455, 462, 486. Plaintiff 12 also had moderate lordosis and degenerative disc disease. Tr. 377, 477. 13 While the ALJ pointed to some objective evidence to support her conclusion 14 that Dr. Garges’ opinion is inconsistent with the objective evidence, there is no 15 analysis of the evidence typically associated with fibromyalgia. SSR 12-2p notes 16 that fibromyalgia symptoms can wax and wane, and the symptoms associated with 17 fibromyalgia, such as widespread pain and fatigue, can cause exertional 18 limitations, and fibromyalgia can cause nonexertional limitations, such as postural 19 and environmental limitations. SSR 12-2p, 2012 WL 3104869 (effective July 25, 20 2012). As the analysis lacks any consideration of Plaintiff’s fibromyalgia, the 2 ORDER - 23 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.671 Page 24 of 32 1 ALJ’s finding that Dr. Garges’ opinion is inconsistent with the objective evidence 2 is not supported by substantial evidence. On remand, the ALJ is instructed to 3 reconsider Dr. Garges’ opinion and incorporate the limitations into the RFC or give 4 reasons supported by substantial evidence to reject the opinion. The ALJ is further 5 instructed to reconsider Plaintiff’s fibromyalgia and SSR 12-2p. 6 7 B. Step Three Plaintiff contends the ALJ erred at step three by failing to find her 8 impairments meet or equal Listing 14.09D. ECF No. 24 at 15-17. At step three, 9 the ALJ must determine if a claimant’s impairments meet or equal a listed 10 impairment. 20 C.F.R. § 416.920(a)(4)(iii). 11 The Listing of Impairments “describes for each of the major body systems 12 impairments [which are considered] severe enough to prevent an individual from 13 doing any gainful activity, regardless of his or her age, education or work 14 experience.” 20 C.F.R. § 416.925. “Listed impairments are purposefully set at a 15 high level of severity because ‘the listings were designed to operate as a 16 presumption of disability that makes further inquiry unnecessary.’” Kennedy v. 17 Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, 493 U.S. 18 521, 532 (1990)). “Listed impairments set such strict standards because they 19 automatically end the five-step inquiry, before residual functional capacity is even 20 2 ORDER - 24 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.672 Page 25 of 32 1 considered.” Kennedy, 738 F.3d at 1176. If a claimant meets the listed criteria for 2 disability, she will be found to be disabled. 20 C.F.R. § 416.920(a)(4)(iii). 3 “To meet a listed impairment, a claimant must establish that he or she meets 4 each characteristic of a listed impairment relevant to his or her claim.” Tackett, 5 180 F.3d at 1099 (emphasis in original); 20 C.F.R. § 416.925(d). “To equal a 6 listed impairment, a claimant must establish symptoms, signs and laboratory 7 findings ‘at least equal in severity and duration’ to the characteristics of a relevant 8 listed impairment . . . .” Tackett, 180 F.3d at 1099 (emphasis in original) (quoting 9 20 C.F.R. § 404.126(a)); 20 C.F.R. § 416.926(a). “If a claimant suffers from 10 multiple impairments and none of them individually meets or equals a listed 11 impairment, the collective symptoms, signs and laboratory findings of all of the 12 claimant’s impairments will be evaluated to determine whether they meet or equal 13 the characteristics of any relevant listed impairment.” Id. However, “ ‘[m]edical 14 equivalence must be based on medical findings,” and “[a] generalized assertion of 15 functional problems is not enough to establish disability at step three.’ ” Id. at 1100 16 (quoting 20 C.F.R. § 404.1526(a)); 20 C.F.R. § 416.926(a). 17 The claimant bears the burden of establishing her impairment (or 18 combination of impairments) meets or equals the criteria of a listed impairment. 19 Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). “An adjudicator’s 20 articulation of the reason(s) why the individual is or is not disabled at a later step in 2 ORDER - 25 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.673 Page 26 of 32 1 the sequential evaluation process will provide rationale that is sufficient for a 2 subsequent reviewer or court to determine the basis for the finding about medical 3 equivalence at step 3.” SSR 17-2P, 2017 WL 3928306, at *4 (effective March 27, 4 2017). 5 Here, the ALJ found that Plaintiff’s impairments and combinations of 6 impairments did not meet or equal any listings, including Listing 14.09D. Tr. 19. 7 While Listing 14.09D addresses inflammatory arthritis, it is the most closely 8 analogous listing for fibromyalgia. SSR 12-2p, 2012 WL 3104869 (effective July 9 25, 2012). Listing 14.09D requires repeated manifestations of inflammatory 10 arthritis, with at least two of the constitutional symptoms or signs (severe fatigue, 11 fever, malaise, or involuntary weight loss) and one of the following at the marked 12 level: 1) Limitation of activities of daily living; 2) Limitation in maintaining social 13 functioning; or 3) Limitation in completing tasks in a timely manner due to 14 deficiencies in concentration, persistence, or pace. 20 C.F.R. Pt. 404, Subpt. P, 15 App. 1, Listing 14.09D. 16 The ALJ found Plaintiff’s impairments do not meet or equal Listing 14.09D 17 but did not set forth an analysis of the listing. Tr. 19. As above, the ALJ’s step 18 three analysis is devoid of any analysis of Plaintiff’s fibromyalgia symptoms. On 19 remand, the ALJ is instructed to reconsider whether Plaintiff’s impairments meet 20 or equal Listing 14.09D and set forth an analysis as the listing. 2 ORDER - 26 Case 2:20-cv-00306-MKD 1 2 ECF No. 27 filed 10/08/21 PageID.674 Page 27 of 32 C. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 3 convincing in discrediting her symptom claims. ECF No. 24 at 17-20. An ALJ 4 engages in a two-step analysis to determine whether to discount a claimant’s 5 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 6 “First, the ALJ must determine whether there is objective medical evidence of an 7 underlying impairment which could reasonably be expected to produce the pain or 8 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 9 “The claimant is not required to show that [the claimant’s] impairment could 10 reasonably be expected to cause the severity of the symptom [the claimant] has 11 alleged; [the claimant] need only show that it could reasonably have caused some 12 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 13 Second, “[i]f the claimant meets the first test and there is no evidence of 14 malingering, the ALJ can only reject the claimant’s testimony about the severity of 15 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 16 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 17 omitted). General findings are insufficient; rather, the ALJ must identify what 18 symptom claims are being discounted and what evidence undermines these claims. 19 Id. (quoting Lester, 81 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th 20 Cir. 2002) (requiring the ALJ to sufficiently explain why it discounted claimant’s 2 ORDER - 27 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.675 Page 28 of 32 1 symptom claims)). “The clear and convincing [evidence] standard is the most 2 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 3 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 4 924 (9th Cir. 2002)). 5 Factors to be considered in evaluating the intensity, persistence, and limiting 6 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 7 duration, frequency, and intensity of pain or other symptoms; 3) factors that 8 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 9 side effects of any medication an individual takes or has taken to alleviate pain or 10 other symptoms; 5) treatment, other than medication, an individual receives or has 11 received for relief of pain or other symptoms; 6) any measures other than treatment 12 an individual uses or has used to relieve pain or other symptoms; and 7) any other 13 factors concerning an individual’s functional limitations and restrictions due to 14 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 15 416.929(c). The ALJ is instructed to “consider all of the evidence in an 16 individual’s record,” to “determine how symptoms limit ability to perform work17 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 18 The ALJ found that Plaintiff’s medically determinable impairments could 19 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 20 2 ORDER - 28 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.676 Page 29 of 32 1 statements concerning the intensity, persistence, and limiting effects of her 2 symptoms were not entirely consistent with the evidence. Tr. 21. 3 The ALJ’s evaluation of Plaintiff’s symptom claims, and the resulting 4 limitations largely relies on the ALJ’s assessment of the medical evidence. Having 5 determined a remand is necessary to readdress Dr. Granges’ opinion and Plaintiff’s 6 fibromyalgia symptoms, any reevaluation must necessarily entail a reassessment of 7 Plaintiff’s subjective symptom claims. Thus, the Court need not reach this issue 8 and on remand the ALJ must also carefully reevaluate Plaintiff’s symptom claims 9 in the context of the entire record. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th 10 Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we 11 decline to reach [plaintiff’s] alternative ground for remand.”). For the purposes of 12 the remand, the ALJ notes that the ALJ’s analysis of Plaintiff’s symptom claims is 13 devoid of an analysis of Plaintiff’s fibromyalgia symptoms. The ALJ notes that 14 Plaintiff reported at least two flares of fibromyalgia per month, which can last for 15 days each. Tr. 21. However, there is no discussion of Plaintiff’s fibromyalgia 16 symptoms or treatment. 17 18 D. Step Five Plaintiff contends the ALJ erred at step five by relying on vocational expert 19 testimony given in response to an incomplete hypothetical. ECF No. 24 at 20-21. 20 At step five of the sequential evaluation analysis, the burden shifts to the 2 ORDER - 29 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.677 Page 30 of 32 1 Commissioner to establish that 1) the claimant can perform other work, and 2) 2 such work “exists in significant numbers in the national economy.” 20 C.F.R. §§ 3 404.1560(c)(2), 416.960(c)(2); Beltran, 700 F.3d at 389. In assessing whether 4 there is work available, the ALJ must rely on complete hypotheticals posed to a 5 vocational expert. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The 6 ALJ’s hypothetical must be based on medical assumptions supported by substantial 7 evidence in the record that reflects all of the claimant’s limitations. Osenbrook v. 8 Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). The hypothetical should be “accurate, 9 detailed, and supported by the medical record.” Tackett, 180 F.3d at 1101. As the 10 case is being remanded for the reasons discussed herein, the ALJ is instructed to 11 perform the five-step analysis anew, including step five. 12 13 E. Remedy Plaintiff urges this Court to remand for an immediate award of benefits. 14 ECF No. 24 at 21. 15 “The decision whether to remand a case for additional evidence, or simply to 16 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 17 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). 18 When the Court reverses an ALJ’s decision for error, the Court “ordinarily must 19 remand to the agency for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 20 1045 (9th Cir. 2017); Benecke, 379 F.3d at 595 (“the proper course, except in rare 2 ORDER - 30 Case 2:20-cv-00306-MKD ECF No. 27 filed 10/08/21 PageID.678 Page 31 of 32 1 circumstances, is to remand to the agency for additional investigation or 2 explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th 3 Cir. 2014). However, in a number of Social Security cases, the Ninth Circuit has 4 “stated or implied that it would be an abuse of discretion for a district court not to 5 remand for an award of benefits” when three conditions are met. Garrison, 759 6 F.3d at 1020 (citations omitted). Under the credit-as-true rule, where (1) the record 7 has been fully developed and further administrative proceedings would serve no 8 useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for 9 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the 10 improperly discredited evidence were credited as true, the ALJ would be required 11 to find the claimant disabled on remand, the Court will remand for an award of 12 benefits. Revels, 874 F.3d at 668. Even where the three prongs have been 13 satisfied, the Court will not remand for immediate payment of benefits if “the 14 record as a whole creates serious doubt that a claimant is, in fact, disabled.” 15 Garrison, 759 F.3d at 1021. 16 The Court finds further finds further proceedings are necessary to resolve 17 conflicts in the record, including conflicting medical opinions. As such, the case is 18 remanded for proceedings consistent with this Order. 19 20 2 ORDER - 31 Case 2:20-cv-00306-MKD 1 2 ECF No. 27 filed 10/08/21 PageID.679 Page 32 of 32 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 3 ALJ’s decision is not supported by substantial evidence and is not free of harmful 4 legal error. Accordingly, IT IS HEREBY ORDERED: 5 1. The District Court Executive is directed to substitute Kilolo Kijakazi as 6 Defendant and update the docket sheet. 7 2. Plaintiff’s Motion for Summary Judgment, ECF No. 24, is GRANTED. 8 3. Defendant’s Motion for Summary Judgment, ECF No. 25, is DENIED. 9 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 10 REVERSING and REMANDING the matter to the Commissioner of Social 11 Security for further proceedings consistent with this recommendation pursuant to 12 sentence four of 42 U.S.C. § 405(g). 13 The District Court Executive is directed to file this Order, provide copies to 14 counsel, and CLOSE THE FILE. 15 DATED October 8, 2021. 16 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 2 ORDER - 32

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