Schierholz v. Kijakazi, No. 2:2020cv00466 - Document 20 (E.D. Wash. 2023)

Court Description: ORDER GRANTING 13 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS; denying 17 Defendant's Motion for Summary Judgment. Filed is CLOSED. Signed by Magistrate Judge James A. Goeke. (TNC, Case Administrator) Modified on 3/20/2023 as to docket text (TNC, Case Administrator).

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Schierholz v. Kijakazi Doc. 20 Case 2:20-cv-00466-JAG ECF No. 20 filed 03/20/23 PageID.914 Page 1 of 14 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 Mar 20, 2023 4 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 TYLER S., 8 No. 2:20-CV-00466-JAG Plaintiff, 9 v. 10 11 12 13 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, 1 14 ORDER GRANTING 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. 13, 17. Attorney Dana C. Madsen represents Tyler S. (Plaintiff); Special 18 Assistant United States Attorney Christopher J. Brackett represents the 19 20 21 22 23 Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 6. After reviewing the administrative record and the briefs filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; 24 25 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 26 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 27 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 28 action need be taken to continue this suit. See 42 U.S.C. § 405(g). ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com Case 2:20-cv-00466-JAG ECF No. 20 filed 03/20/23 PageID.915 Page 2 of 14 1 and REMANDS the matter to the Commissioner for additional proceedings 2 pursuant to 42 U.S.C. § 405(g). I. 3 4 JURISDICTION Plaintiff protectively filed an application for Disability Insurance Benefits 5 and an application for Supplemental Security Income on October 15, 2018. Tr. 6 193-05, 206-15. The applications were denied initially and upon reconsideration. 7 Tr. 130-32, 133-36, 139-41, 142-44. Administrative Law Judge (ALJ) Mary Ann 8 Lunderman held a hearing on July 14, 2020, Tr. 33-61, and issued an unfavorable 9 decision on August 5, 2020. Tr. 13-32. Plaintiff requested review by the Appeals 10 Council and the Appeals Council denied the request for review on November 2, 11 2020. Tr. 1-7. Accordingly, the ALJ’s August 2020 decision became the final 12 13 14 15 16 17 18 19 20 decision of the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on December 21, 2020. ECF No. 1. II. STATEMENT OF FACTS The facts of the case are set forth in detail in the transcript of proceedings and the ALJ’s decision and only briefly summarized here. Plaintiff was born in 1989 and was 29 years old on the date the application was filed and 20 years old on his date last insured. Tr. 25. He has a GED and previous employment includes 21 work as a dietary aide and as a fast-food cashier. Tr. 43-44, 245. Records show a 22 long history of blackouts, epileptic seizures, and non-epileptic episodes triggered 23 by anxiety, with history of likely traumatic brain injury in a motor vehicle accident 24 at age 10. See e.g., Tr. 543, 546, 556, 561, 563-564, 565, 571, 573, 595-96, 601, 25 634-35, 639, 647, 654. 26 27 28 III. STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 Case 2:20-cv-00466-JAG ECF No. 20 filed 03/20/23 PageID.916 Page 3 of 14 1 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 2 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 3 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 4 only if it is not supported by substantial evidence or if it is based on legal error. 5 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 6 defined as being more than a mere scintilla, but less than a preponderance. Id. at 7 1098. Put another way, substantial evidence is such relevant evidence as a 8 reasonable mind might accept as adequate to support a conclusion. Richardson v. 9 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 10 rational interpretation, the Court may not substitute its judgment for that of the 11 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 12 13 14 15 16 17 18 19 20 21 595, 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or if conflicting evidence supports a finding of either disability or nondisability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). IV. SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 22 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 23 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 24 four, the claimant bears the burden of establishing a prima facie case of disability. 25 Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes 26 that a physical or mental impairment prevents the claimant from engaging in past 27 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 28 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 Case 2:20-cv-00466-JAG ECF No. 20 filed 03/20/23 PageID.917 Page 4 of 14 1 the Commissioner to show (1) that Plaintiff can perform other substantial gainful 2 activity and (2) that a significant number of jobs exist in the national economy 3 which Plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1497-1498 (9th Cir. 4 1984); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a claimant cannot 5 make an adjustment to other work in the national economy, the claimant will be 6 found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 7 8 9 V. ADMINISTRATIVE FINDINGS On August 5, 2020 the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. Tr. 13-32. 10 At step one, the ALJ found Plaintiff met the insured status requirements of 11 the Social Security Act through June 30, 2010 and had not engaged in substantial 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 gainful activity since August 31, 2018 the alleged onset date. Tr. 18. At step two, the ALJ determined Plaintiff had the following severe impairments: epilepsy, attention deficit hyperactivity disorder, depression, and anxiety disorder. Tr. 19. At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. Tr. 19-20. The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found he could perform a full range of work at all exertional levels, but with the following nonexertional limitations: Specifically, assigned work tasks must entirely preclude the climbing of ladders, ropes, and scaffolds and within the assigned work area there must be no exposure to hazards, such as unprotected bodies of water, heights, and hazardous machinery. The assigned work must be limited to simple unskilled tasks with a SVP of 1 or 2 and a reasoning level of 1 or 2, and there must be minimal change in the tasks as assigned. The assigned work must require no more than occasional intermittent work related contact with coworkers, supervisors and the public. Finally, the assigned tasks must be performed primarily independently, not as a member of a team or crew. ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 Case 2:20-cv-00466-JAG 1 ECF No. 20 filed 03/20/23 PageID.918 Page 5 of 14 Tr. 20. 2 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 24. 3 At step five, the ALJ found that, based on the testimony of the vocational 4 expert, and considering Plaintiff’s age, education, work experience, and RFC, 5 Plaintiff could perform jobs that existed in significant numbers in the national 6 economy, including the jobs of lumber sorter and production assembler. Tr. 25. 7 The ALJ thus concluded Plaintiff was not under a disability within the 8 meaning of the Social Security Act at any time from the August 31, 2018 through 9 the date of the decision. 2 Tr. 26. 10 VI. 11 12 13 ISSUES The question presented is whether substantial evidence supports the ALJ’s decision denying benefits and, if so, whether that decision is based on proper legal standards. Plaintiff contends the Commissioner erred by (1) improperly evaluating 14 15 16 17 18 19 20 21 22 23 24 2 In the jurisdiction and procedural history section of the decision, the ALJ noted concurrent Title II and Title XVI claims, with date last insured of June 30, 2010, but indicated that she would dismiss the Title II claim as Plaintiff’s alleged onset date was past the date last insured. Tr. 16. The ALJ made findings on both claims throughout the decision, however, and determined Plaintiff was not disabled on both the Title II and Title XVI claims as of an alleged onset date in August 2018 and/or as of the SSI application date in October 2018 through the date of the decision. See Tr. 26. Review of the record reveals the state agency indicated Plaintiff had a potential onset date as of his date last insured, June 10, 2010, due to 25 a mental health evaluation within three months of the date. See Tr. 68, 75, 77, 94, 26 113-14. As the case is being remanded for proper consideration of the opinion 27 evidence, upon remand the ALJ is instructed to fully adjudicate all claims that are 28 before the ALJ. ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 Case 2:20-cv-00466-JAG ECF No. 20 filed 03/20/23 PageID.919 Page 6 of 14 1 medical opinion evidence; and (2) improperly rejecting Plaintiff’s subjective 2 complaints. VII. DISCUSSION 3 4 5 A. Medical Opinions. Plaintiff alleges the ALJ erred by improperly disregarding the opinions of 6 Conrad Nievera, M.D., F. Todd Brooking, M.D., and Jeanne Paddock, LMHC, in 7 favor of Greg Saue, M.D., and Jerry Gardner, Ph.D. ECF No. 13 at 8-10, 18. 8 For claims filed on or after March 27, 2017, pursuant to the applicable 9 regulations, the ALJ does not give any specific evidentiary weight to medical 10 opinions or prior administrative medical findings. 20 C.F.R. §§ 404.1520c(a), 11 416.920c(a). Instead, the ALJ must consider and evaluate the persuasiveness of all 12 13 14 15 16 17 18 19 20 medical opinions or prior administrative medical findings from medical sources. 20 C.F.R. §§ 404.1520c(a) and (b), 416.920c(a) and (b). The factors for evaluating the persuasiveness of medical opinions and prior administrative findings include supportability, consistency, the source’s relationship with the claimant, any specialization of the source, and other factors (such as the source’s familiarity with other evidence in the file or an understanding of Social Security’s disability program). 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). Supportability and consistency are the most important factors, and the ALJ must explain how both 21 factors were considered. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The ALJ 22 may explain how they considered the other factors, but is not required to do so, 23 except in cases where two or more opinions are equally well-supported and 24 consistent with the record. Id. 25 Supportability and consistency are explained in the regulations: 26 (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 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 Case 2:20-cv-00466-JAG 1 2 3 4 5 6 7 8 9 ECF No. 20 filed 03/20/23 PageID.920 Page 7 of 14 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. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). The Ninth Circuit addressed the issue of whether the new regulatory framework displaces the longstanding case law requiring an ALJ to provide 10 specific and legitimate reasons to reject an examining provider’s opinion. Woods 11 v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). The Court held that the new 12 13 14 15 16 17 18 19 20 regulations eliminate any hierarchy of medical opinions, and the specific and legitimate standard no longer applies. Id. at 788-89, 792. The Court reasoned the “relationship factors” remain relevant under the new regulations, and thus the ALJ can still consider the length and purpose of the treatment relationship, the frequency of examinations, the kinds and extent of examinations that the medical source has performed or ordered from specialists, and whether the medical source has examined the claimant or merely reviewed the claimant’s records. Id. at 790, 792. Even under the new regulations, an ALJ must provide an explanation 21 supported by substantial evidence when rejecting an examining or treating doctor’s 22 opinion as unsupported or inconsistent. Id. at 792. 23 1. Dr. Nievera. 24 On July 17, 2018, Dr. Nievera completed a documentation request form for 25 medical or disability condition for Washington State DSHS. Tr. 597-600. Dr. 26 Nievera noted Plaintiff’s diagnoses of epilepsy, and indicated this condition limited 27 his ability to work, look for work, and prepare for work. Tr. 597. He opined 28 Plaintiff had specific limitations including no driving, no climbing ladders or ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 Case 2:20-cv-00466-JAG ECF No. 20 filed 03/20/23 PageID.921 Page 8 of 14 1 working from heights, no working [around] open water or flame, no working with 2 heavy machinery or equipment, and no overhead lifting. Id. He indicated plaintiff 3 was unable to participate in work activity. Id. He further indicated Plaintiff was 4 limited to sedentary lifting and carrying, and that he could lift 10 pounds maximum 5 and frequently lift and carry such articles and files and small tools. Tr. 598. He 6 indicated Plaintiff’s condition was permanent. Id. Dr. Nievera indicated 7 Plaintiff’s treatment plan was the use of seizure medication and that he would be 8 providing and monitoring the ongoing treatment plan. Id. The ALJ did not 9 address Dr. Nievera’s opinion. 10 2. 11 In January 2018, Dr. Brooking completed a documentation request form for 12 13 14 15 16 17 18 19 20 Dr. Brooking. medical or disability condition for Washington State DSHS. Tr. 623-26, 631-33. Dr. Brooking noted Plaintiff’s diagnoses of seizure disorder, chronic thoracic back pain, and history of traumatic brain injury. Tr. 623. He opined Plaintiff’s conditions limited his ability to work, look for work, and prepare for work, with specific limitations due to seizure disorder including “not operating certain equipment” and “difficulty completing multistep tasks”; he opined Plaintiff would be limited to participating in work activity 11-20 hours per week. Id. He opined Plaintiff had limitations in lifting and carrying due to chronic back pain, and that 21 he should be limited to light work. Tr. 624. He further opined Plaintiff’s condition 22 was permanent and likely to limit his ability to work, look for work, or train to 23 work. Id. Dr. Brooking indicated Plaintiff’s treatment plan included being seen by 24 neurology and that he should be referred for a vocational assessment. Tr. 624-25. 25 The ALJ did not assess Dr. Brooking’s opinion. 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 Case 2:20-cv-00466-JAG ECF No. 20 filed 03/20/23 PageID.922 Page 9 of 14 1 3. Ms. Paddock. 2 On July 16, 2018, Plaintiff’s mental health provider, Ms. Paddock, 3 completed a documentation request form for medical or disability condition for 4 Washington State DSHS. Tr. 618-20. Ms. Paddock noted Plaintiff’s diagnoses 5 included: 1) generalized anxiety disorder; 2) major neurocognitive disorder due to 6 traumatic brain injury; and 3) other specific neurodevelopmental disorder 7 (seizures). Tr. 618. She indicated his conditions limited his ability to work, look 8 for work, or prepare for work, with specific limitations in memory retention, 9 reading and writing, following complex instructions both verbal and written, 10 handling machinery, driving, carrying items (“dangerous if [he] has a seizure”), 11 and that “a low stress environment [is] necessary as seizures may be triggered by 12 13 14 15 16 17 18 19 20 stress.” Id. Ms. Paddock indicated Plaintiff was limited to 11 to 30 hours of participation in work activity a week. Id. She indicated he also had limitations in his ability to lift and carry and “he has seizures and may drop things”; she indicated he should be limited to light work. Tr. 619. She indicated his condition was permanent and likely to limit his ability to work, look for work, and train for work. Id. She explained “neurological testing [was] in progress including CT, MRI, and meds have recently been changed in effort to identify the impact on brain 21 of TBI and seizures.” Id. She noted she would be providing and monitoring his 22 treatment plan along with his neurologist, Dr. Nievera. Id. Ms. Paddock also 23 completed a similar form in January 2018. Tr. 627-29. The ALJ did not address 24 Ms. Paddock’s opinions. 25 4. Failure to Consider Medical Opinions. 26 The ALJ did not address the opinions of Plaintiff’s neurologist, primary care 27 provider, and mental health provider. Under the applicable regulations, the ALJ 28 must evaluate medical opinions using the factors listed in 20 C.F.R. §§ 404.1520c ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 Case 2:20-cv-00466-JAG ECF No. 20 filed 03/20/23 PageID.923 Page 10 of 14 1 and 416.920c. Additionally, the ALJ is required to consider “all medical opinion 2 evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Here, the 3 ALJ erred by failing to discuss multiple disabling opinions by Plaintiff’s providers 4 as required by the regulations. This error is not harmless. 5 The harmless error analysis may be applied where even a treating source’s 6 opinion is disregarded without comment. Marsh v. Colvin, 792 F.3d 1170, 1173 7 (9th Cir. 2015). An error is harmful unless the reviewing court “can confidently 8 conclude that no reasonable ALJ, when fully crediting the [evidence], could have 9 reached a different disability determination.” Stout v. Comm’r of Soc. Sec. Admin., 10 454 F.3d 1050, 1056 (9th Cir. 2006). Here, three of Plaintiff’s treating providers 11 provided disabling opinions within a few months of his alleged onset of disability. 12 13 14 15 16 17 18 19 20 Each provider indicated Plaintiff’s limitations were permanent, their opinions were directly related to the physical and mental limitations that Plaintiff alleges prevent him from working, and each provider addressed impairments that the ALJ determined were severe. Tr. 19. For example, in July 2018 Plaintiff’s neurologist, Dr. Nievera, indicated Plaintiff was limited to sedentary exertion and that his condition was permanent and likely to limit his ability to work, look for work, or train to work. Tr. 597-600. Treating providers Ms. Paddock and Dr. Brooking provided similar limitations, noted impairments the ALJ does not appear to have 21 considered including history of traumatic brain injury, and all providers determined 22 Plaintiff was more limited than determined by the ALJ. See Tr. 597-600, 618-20, 23 623-26. Accordingly, the ALJ erred by not considering these opinions and the 24 error was harmful because a reasonable ALJ could have reached a different 25 disability determination had these opinions been considered. 26 Although Defendant argues these opinions are not relevant because they 27 were all rendered prior to Plaintiff’s alleged onset date, the ALJ did not provide 28 any such rationale, thus the Court will not consider Defendant’s post hoc ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 Case 2:20-cv-00466-JAG ECF No. 20 filed 03/20/23 PageID.924 Page 11 of 14 1 rationalization. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (The Court 2 will “review only the reasons provided by the ALJ in the disability determination 3 and may not affirm the ALJ on a ground upon which he did not rely.”). The ALJ 4 failed to address these opinions at all, despite all three assessing permanent, 5 disabling limitations, and this was harmful error. 6 On remand, the ALJ is instructed to consider the opinions of Dr. Nievera, 7 Dr. Brookings, and Ms. Paddock and set forth an analysis of the consistency and 8 supportability of these opinions, as required by the regulations. The ALJ is to 9 incorporate the opinions into the RFC or give reasons supported by substantial 10 11 12 13 14 15 16 17 18 19 20 evidence to reject the opinions. 5. Prior Administrative Findings. In February 2019, the state agency mental consultant Dr. Eather opined that on Plaintiff’s date last insured June 30, 2010, Plaintiff remained able to engage in both simple and more complex tasks within the average work week based on severe impairments. Tr. 71-72. Dr. Eather opined as of his Title XVI application in 2018, Plaintiff remained able to engage in both simple and more complex tasks within an average work week, and that he would do best in a work environment with limited contact with the general public. Tr. 88. Dr. Eather noted Plaintiff has difficulty dealing with the particular stressors of interacting with the public and 21 that stress often triggers his seizures but opined that he could adapt to stable low 22 pressure work settings. Tr. 89. In July 2019, upon reconsideration, Dr. Gardner 23 affirmed Dr. Eather’s initial limitations for Plaintiff’s Title XVI claim. Tr. 107-08. 24 In February 2019, Dr. Saue opined there was insufficient evidence as of 25 Plaintiff’s date last insured in 2010 to evaluate Plaintiff’s physical condition. 26 Tr. 69. As for Plaintiff’s 2018 Title XVI claim, Dr. Saue opined that due to seizure 27 precautions, Plaintiff should never climb ladders, ropes, or scaffolds and should 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 Case 2:20-cv-00466-JAG ECF No. 20 filed 03/20/23 PageID.925 Page 12 of 14 1 avoid even moderate exposure to hazards. Tr. 86-87. In June 2019, Dr. Staley 2 affirmed Dr. Saue’s opinion regarding Plaintiff’s Title XVI claim. Tr. 105-06. The ALJ found the opinions of Dr. Saue and Dr. Gardner persuasive in 3 4 regard to Plaintiff’s Title XVI claim because they were consistent with the 5 evidence of record and supported by treatment notes and found “their opinions 6 regarding the Title II claim not persuasive.” Tr. 23. As explained supra, the ALJ 7 erred because she did not discuss relevant medical opinions from plaintiff’s 8 neurologist, primary care provider, and mental health provider. The ALJ’s 9 conclusion that the non-examining doctors’ opinions are consistent with the 10 evidence of record is therefore not supported by substantial evidence. As this 11 claim is being remanded for further proceedings, the ALJ shall also reconsider the 12 13 14 15 16 17 18 19 20 opinions of the state agency consultants. B. Plaintiff’s Subjective Complaints. Plaintiff contends the ALJ erred by improperly rejecting his subjective complaints. ECF No. 13 at 15-16. It is the province of the ALJ to make determinations regarding a claimant’s subjective statements. Andrews, 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying medical impairment, the ALJ may not 21 discredit testimony as to the severity of an impairment merely because it is 22 unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 23 1998). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting 24 the claimant’s testimony must be “specific, clear and convincing.” Smolen v. 25 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 26 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must identify 27 what testimony is not credible and what evidence undermines the claimant’s 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 Case 2:20-cv-00466-JAG ECF No. 20 filed 03/20/23 PageID.926 Page 13 of 14 1 complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 2 1993). 3 The ALJ concluded Plaintiff’s medically determinable impairments might 4 reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 5 statements concerning the intensity, persistence and limiting effects of those 6 symptoms were not entirely consistent with the medical evidence and other 7 evidence in the record. Tr. 22. The ALJ found Plaintiff’s allegations were 8 inconsistent with the evidence of record and that his impairments improved with 9 treatment. Tr. 23. 10 The ALJ’s evaluation of Plaintiff’s symptom claims and the resulting 11 limitations largely relies on the ALJ’s assessment of the medical evidence. Having 12 13 14 15 16 17 18 19 20 determined a remand is necessary to readdress the medical opinion evidence, the ALJ shall also reconsider Plaintiff’s subjective symptom claims. Thus, the Court need not reach this issue and on remand the ALJ must also carefully reevaluate Plaintiff’s symptom claims in the context of the entire record. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative ground for remand.”). VIII. CONCLUSION 21 Plaintiff argues the decision should be reversed and remanded for the 22 payment of benefits. The Court has the discretion to remand the case for additional 23 evidence and findings or to award benefits. Smolen, 80 F.3d at 1292. The Court 24 may award benefits if the record is fully developed and further administrative 25 proceedings would serve no useful purpose. Id. Remand is appropriate when 26 additional administrative proceedings could remedy defects. Rodriguez v. Bowen, 27 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court finds that further 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 Case 2:20-cv-00466-JAG ECF No. 20 filed 03/20/23 PageID.927 Page 14 of 14 1 proceedings are necessary to resolve conflicts in the record, including conflicting 2 medical opinions. The ALJ’s decision is not supported by substantial evidence. On remand, 3 4 the ALJ shall reevaluate all medical evidence of record, including all medical 5 opinion evidence, reevaluate Plaintiff’s subjective complaints, and make new 6 findings on each of the five steps of the sequential evaluation process, taking into 7 consideration any other evidence or testimony relevant to Plaintiff’s disability 8 claim. 9 10 11 12 13 14 15 16 17 18 19 20 Accordingly, IT IS ORDERED: 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is GRANTED. 2. Defendant’s Motion for Summary Judgment, ECF No. 17, is DENIED. 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 4. An application for attorney fees may be filed by separate motion. 5. The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 21 IT IS SO ORDERED. 22 DATED March 20, 2023. 23 24 25 _____________________________________ JAMES A. GOEKE UNITED STATES MAGISTRATE JUDGE 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 14

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