Badillo v. Commissioner of Social Security, No. 4:2017cv05112 - Document 17 (E.D. Wash. 2018)

Court Description: ORDER Granting In Part 14 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Badillo v. Commissioner of Social Security Doc. 17 1 2 3 4 5 6 7 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 8 9 UNITED STATES DISTRICT COURT Sep 25, 2018 10 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 11 12 13 MARIBEL B., No. 4:17-CV-05112-JTR Plaintiff, 14 15 16 17 18 v. ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, Defendant. 19 20 BEFORE THE COURT are cross-motions for summary judgment. ECF 21 Nos. 14, 15. Attorney Chad L. Hatfield represents Maribel B. (Plaintiff); Special 22 Assistant United States Attorney Joseph John Langkamer represents the 23 Commissioner of Social Security (Defendant). The parties have consented to 24 proceed before a magistrate judge. ECF No. 3. After reviewing the administrative 25 record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s 26 Motion for Summary Judgment; DENIES Defendant’s Motion for Summary 27 Judgment; and REMANDS the matter to the Commissioner for additional 28 proceedings pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c). ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 JURISDICTION 2 Plaintiff filed applications for Supplemental Security Income (SSI) and 3 Disability Insurance Benefits (DIB) on April 1, 2013, Tr. 109, alleging disability 4 since August 10, 2011, Tr. 247, 253, due to Hepatitis C, left ankle fracture, carpel 5 tunnel syndrome, depression, anxiety, and a pinched nerve in the left arm, Tr. 315. 6 The applications were denied initially and upon reconsideration. Tr. 176-80, 183- 7 88. Administrative Law Judge (ALJ) Tom L. Morris held a hearing on August 21, 8 2015 and heard testimony from Plaintiff and vocational expert Mark Harrington. 9 Tr. 31-83. The ALJ issued an unfavorable decision on January 5, 2016. Tr. 14-24. 10 The Appeals Council denied review on May 27, 2017. Tr. 1-7. The ALJ’s January 11 5, 2016 decision became the final decision of the Commissioner, which is 12 appealable to the district court pursuant to 42 U.S.C. §§ 405(g), 1383(c). Plaintiff 13 filed this action for judicial review on July 26, 2017. ECF Nos. 1, 5. STATEMENT OF FACTS 14 The facts of the case are set forth in the administrative hearing transcript, the 15 16 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 17 here. 18 Plaintiff was 40 years old at the alleged date of onset. Tr. 247. She reported 19 that she completed her GED in 2005. Tr. 316. Her reported work history includes 20 the jobs of farm laborer, clothing retail, food processing, hostess, and 21 housekeeping. Tr. 317, 327. Plaintiff reported that she stopped working on May 22 31, 2011 due to her conditions. Tr. 316. 23 24 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 25 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 26 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 27 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 28 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 not supported by substantial evidence or if it is based on legal error. Tackett v. 2 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 3 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 4 another way, substantial evidence is such relevant evidence as a reasonable mind 5 might accept as adequate to support a conclusion. Richardson v. Perales, 402 6 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 7 interpretation, the court may not substitute its judgment for that of the ALJ. 8 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 9 findings, or if conflicting evidence supports a finding of either disability or non- 10 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 11 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 12 evidence will be set aside if the proper legal standards were not applied in 13 weighing the evidence and making the decision. Brawner v. Secretary of Health 14 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 15 16 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 18 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 19 through four, the burden of proof rests upon the claimant to establish a prima facie 20 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 21 burden is met once the claimant establishes that physical or mental impairments 22 prevent her from engaging in her previous occupations. 20 C.F.R. §§ 23 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do her past relevant work, 24 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 25 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 26 which the claimant can perform exist in the national economy. Batson v. Comm’r 27 of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant 28 cannot make an adjustment to other work in the national economy, a finding of ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 2 ADMINISTRATIVE DECISION 3 On January 5, 2016, the ALJ issued a decision finding Plaintiff was not 4 5 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had engaged in substantial gainful 6 activity for the year of 2012. Tr. 17. However, since there had been a continuous 7 twelve month period during which Plaintiff had not engaged in substantial gainful 8 activity, the ALJ continued in the sequential evaluation process. Tr. 17. 9 10 At step two, the ALJ determined Plaintiff had the following severe impairments: degenerative disc disease and carpal tunnel syndrome. Tr. 17. 11 At step three, the ALJ found Plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled the severity of one of 13 the listed impairments. Tr. 19. 14 15 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined she could perform a range of light work with the following limitations: 16 17 18 19 20 21 22 23 24 25 26 except she can stand and/or walk (with normal breaks) for a total of about six hours in an eight hour workday and sit (with normal breaks) for a total of about six hours in an eight hour workday. The claimant would need to periodically alternate sitting with standing, which can be accomplished by any work task requiring such shifts or can be done in either position temporarily or longer. The claimant can frequently climb ramps and stairs. She can frequently handle bilaterally. The claimant must avoid concentrated exposure to vibrations and hazards (such as dangerous machinery or unprotected heights). She is capable of unskilled work tasks with customary breaks and lunch. The claimant can work in a low stress environment, defined as only occasional decision making required. No production rate pace work but rather goal oriented work. The claimant would be off task 10% over the course of an 8-hour workday. 27 28 Tr. 20. The ALJ identified Plaintiff’s past relevant work as label maker and ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 packer, agricultural produce and concluded that Plaintiff was not able to perform 2 this past relevant work. Tr. 22. 3 At step five, the ALJ determined that, considering Plaintiff’s age, education, 4 work experience and residual functional capacity, and based on the testimony of 5 the vocational expert, there were other jobs that exist in significant numbers in the 6 national economy Plaintiff could perform, including the jobs of small products 7 assembler, electrical accessories assembler, and products assembler. Tr. 23. The 8 ALJ concluded Plaintiff was not under a disability within the meaning of the Social 9 Security Act at any time from August 10, 2011 1, through the date of the ALJ’s 10 decision. Tr. 23. 11 12 ISSUES The question presented is whether substantial evidence supports the ALJ’s 13 decision denying benefits and, if so, whether that decision is based on proper legal 14 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh the 15 opinion evidence, (2) failing to find Plaintiff’s anxiety and depression severe at 16 step two, (3) failing to properly consider Plaintiff’s symptom statements, and (4) 17 failing to meet his burden at step five. 18 19 20 21 1 Plaintiff had previously filed applications for SSI and DIB benefits on June 22 20, 2012 alleging disability as of August 10, 2011. Tr. 84-85, 232-244, 261. 23 These applications were denied on September 18, 2012. Tr. 166. While the ALJ 24 did not reopen these applications, he was aware of them as they were a part of the 25 exhibits he entered into the record at the hearing. Tr. 34. The Court finds that by 26 making a determination of disability pertaining to the period of time at issue in the 27 prior application, the ALJ de facto reopened the prior adjudications. See Lewis v. 28 Apfel, 236 F.3d 503, 510 (9th Cir. 2001). ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 DISCUSSION2 1 2 3 1. Opinion Evidence Plaintiff argues the ALJ failed to properly consider and weigh the opinions 4 expressed by Tae-Im Moon, Ph.D., Jan Kouzes, Ed.D., N.K. Marks, Ph.D., Cheryl 5 P. Hipolito, M.D., and Sergio Flores, M.D. ECF No. 14 at 13-18. 6 In weighing medical source opinions, the ALJ should distinguish between 7 three different types of physicians: (1) treating physicians, who actually treat the 8 claimant; (2) examining physicians, who examine but do not treat the claimant; 9 and, (3) nonexamining physicians who neither treat nor examine the claimant. 10 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 11 weight to the opinion of a treating physician than to the opinion of an examining 12 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 13 should give more weight to the opinion of an examining physician than to the 14 opinion of a nonexamining physician. Id. 15 When an examining physician’s opinion is not contradicted by another 16 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, 17 and when an examining physician’s opinion is contradicted by another physician, 18 the ALJ is only required to provide “specific and legitimate reasons” to reject the 19 opinion. Lester, 81 F.3d at 830-31. The specific and legitimate standard can be 20 met by the ALJ setting out a detailed and thorough summary of the facts and 21 22 2 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 conflicting clinical evidence, stating his interpretation thereof, and making 2 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 3 required to do more than offer his conclusions, he “must set forth his 4 interpretations and explain why they, rather than the doctors’, are correct.” 5 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 6 A. Tae-Im Moon, Ph.D., Jan Kouzes, Ed.D., and N.K. Marks, Ph.D. 7 On March 11, 2013, Dr. Moon completed a Psychological/Psychiatric 8 Evaluation form for the Department of Social and Health Services (DSHS). Tr. 9 517-21. He diagnosed Plaintiff with major depressive disorder, and anxiety 10 disorder and opined that Plaintiff had a marked limitation in seven basic work 11 activities and a moderate limitation in the remaining six basic work activities. Tr. 12 519-20. 13 On August 24, 2012, Dr. Krouzes completed a Psychological/Psychiatric 14 Evaluation form for DSHS. Tr. 462-66. She diagnosed Plaintiff with major 15 depressive disorder, and anxiety disorder and opined that Plaintiff had a marked 16 limitation in four basic work activities and a moderate limitation in an additional 17 five basic work activities. Tr. 463-64. 18 On February 12, 2015 Dr. Marks examined Plaintiff and on April 30, 2015, 19 Dr. Marks administered psychological testing at the request of DSHS. Tr. 695- 20 701. He completed the Wechsler Adult Intelligence Test-IV and the Trail Making 21 Test parts A and B. Tr. 700-01. Plaintiff was not able to complete the Trail 22 making part B as she forgot the directions and had to have them repeated multiple 23 times. Tr. 701. The Wechsler Memory Scale was attempted but testing was 24 aborted due to Plaintiff’s level of frustration and fatigue with testing. Tr. 700. On 25 May 11, 2015, Dr. Marks diagnosed Plaintiff with an unspecified neurocognitive 26 disorder and an unspecified depressive disorder. Tr. 697. He opined that Plaintiff 27 had a severe limitation in nine basic work activities, a marked limitation in three 28 basic work activities, and a moderate limitation in the remaining basic work ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 activities addressed on the form. Tr. 697-98. 2 The ALJ addressed the opinions of these three examining providers together 3 in a single paragraph. Tr. 18-19. The ALJ assigned all three opinions little weight 4 because (1) Plaintiff failed to follow through with treatment for her mental health 5 symptoms, (2) Plaintiff’s presentation for these evaluations was in “significant 6 contrast to the other evidence in the record,” (3) the claimant has greater social 7 functioning that indicated in the opinions, and (4) the opinions do not accurately 8 reflect Plaintiff’s cognitive functioning. Id. 9 Plaintiff asserts that the ALJ’s reasons for rejecting these opinions failed to 10 raise to the level of specific and legitimate reasons supported by substantial 11 evidence. ECF No. 14 at 14. The Court agrees. To meet the specific and 12 legitimate standard, the ALJ must set out a detailed and thorough summary of the 13 facts and conflicting clinical evidence, state his interpretation thereof, and make 14 findings. Magallanes, 881 F.2d at 751. He must do more than offer his 15 conclusions, he “must set forth his interpretations and explain why they, rather 16 than the doctors’, are correct.” Embrey, 849 F.2d at 421-22. Here by clumping all 17 three opinions together and making conclusory statements regarding their 18 reliability, the ALJ failed to provide the thorough summary of the facts and 19 conflicting clinical evidence. 20 The ALJ did provide one specific example regarding Dr. Marks’ opinion as 21 not accurately reflecting Plaintiff’s cognitive functioning: “Dr. Marks indicated 22 that the claimant exhibited very poor memory skills and had a full-scale IQ of 59, 23 which would be in the intellectual disability range. However, no other examiner 24 has suggested that the claimant has such significantly reduced functioning.” Tr. 25 19. However, the ALJ failed to provide any citation to evidence that demonstrated 26 Plaintiff functioned at a higher intellectual level. Id. Dr. Marks is the only 27 provider who administered such testing, and the opinions of all the other 28 examining psychologists, Dr. Moon and Dr. Krouzes, addressed significant ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 limitations in social and cognitive abilities. Tr. 464, 519-520. Therefore this 2 single specific comparison as inserted in this otherwise conclusive paragraph is not 3 supported by substantial evidence and is not sufficient to uphold the rejection of all 4 three opinions. 5 Defendant provided substantial citations to the record in support of the 6 ALJ’s conclusive reasons for rejecting these opinions. ECF No. 15 at 11-13. 7 However, the Court is limited to reviewing what the ALJ wrote in his decision and 8 not the assertions of the Defendant on appeal. See Orn, 495 F.3d at 630 (The 9 Court will “review only the reasons provided by the ALJ in the disability 10 determination and may not affirm the ALJ on a ground upon which he did not 11 rely.”). Therefore, Defendant’s citations to the record in support of the ALJ’s 12 rationale cannot be persuasive. 13 The ALJ will readdress the opinions of Dr. Moon, Dr. Krouzes, and Dr. 14 Marks on remand and will call a psychological expert to testify at a remand 15 hearing. 16 B. 17 On January 14, 2012, Dr. Hipolito completed a Physical Functional Cheryl P. Hipolito, M.D. 18 Evaluation form for DSHS. Tr. 523-25. She diagnosed Plaintiff with major 19 depressive disorder and chronic left wrist pain and limited Plaintiff to sedentary 20 work. Tr. 524-25. The ALJ rejected this opinion because the opinion of Dr. 21 Ulleland was more consistent with medical evidence. Tr. 21-22. The ALJ’s 22 rationale implies that Dr. Hipolito’s opinion was inconsistent with the medical 23 evidence. The ALJ then provided citation to the evidence that supported Dr. 24 Ulleland’s opinion but failed to address how this evidence was contradictory to Dr. 25 Hipolito’s opinion. Since this case is being remanded to further address the 26 psychological opinions in the file, the ALJ will readdress Dr. Hipolito’s opinion as 27 well. 28 // ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 C. Sergio Flores, M.D. 2 On August 21, 2012, Dr. Flores completed a Physical Functional Evaluation 3 form at the request of DSHS. Tr. 470-76. He diagnosed Plaintiff with a fracture of 4 the right food and bilateral carpal tunnel syndrome. Tr. 471. He opined that 5 Plaintiff was severely limited, meaning she was “[u]nable to meet the demands of 6 sedentary work.” Tr. 472, 476. The ALJ gave little weight to this opinion because 7 (1) Dr. Flores did not cite to any objective findings to support his opinion, (2) Dr. 8 Flores indicated Plaintiff was severely limited but only listed Plaintiff’s 9 impairments as moderate in severity, and (3) Dr. Flores relied on Plaintiff’s foot 10 fracture as an impairment contributing to her disability, but the ALJ found the foot 11 fracture to be a nonsevere impairment. Tr. 22. This case is being remanded for the ALJ to further address the psychological 12 13 opinions in this case. Upon remand, the ALJ will further address Dr. Flores’ 14 opinion. Dr. Flores relied on Plaintiff’s foot fracture as an impairment contributing 15 to her disability. The ALJ concluded that this is inconsistent with the evidence, 16 which failed to support that the foot fracture resulted in a severe impairment. Tr. 17 22. In the step two discussion of Plaintiff’s foot fracture, the ALJ makes a citation 18 to an imaging report that “did not document any fracture.” Tr. 17 (citing Tr. 611- 19 612). However, this imaging report was an x-ray of Plaintiff’s left tibia and fibula. 20 Tr. 612. The report fails to address any bones of the left foot. Id. As such, the 21 ALJ’s determination that Plaintiff’s left foot impairment is not severe potentially 22 lacks support by substantial evidence. Therefore, upon remand, the ALJ is 23 instructed to further address Plaintiff’s left foot impairment and reconsider Dr. 24 Flores’ opinion. 25 2. 26 27 28 Step Two Plaintiff challenges the ALJ’s determination that Plaintiff’s depression and anxiety were not severe at step two. ECF No. 14 at 10-13. The step-two analysis is “a de minimis screening device used to dispose of ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). An 2 impairment is “not severe” if it does not “significantly limit” the ability to conduct 3 “basic work activities.” 20 C.F.R. §§ 404.1522(a), 416.922(a). Basic work 4 activities are “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 5 416.922(b). “An impairment or combination of impairments can be found not 6 severe only if the evidence establishes a slight abnormality that has no more than a 7 minimal effect on an individual’s ability to work.” Smolen v. Chater, 80 F.3d 8 1273, 1290 (9th Cir. 1996) (internal quotation marks omitted). A claimant’s own 9 statement of symptoms alone will not suffice. See 20 C.F.R. § 416.921. The ALJ premised his step two determination on the rejection of the 10 11 opinions of Dr. Moon, Dr. Kouzes, and Dr. Marks. Tr. 18-19. As addressed 12 above, the ALJ failed to provide legally sufficient reasons for rejecting the 13 opinions of these providers, all of which found Plaintiff had severe mental health 14 impairments. Therefore, upon remand, the ALJ will readdress Plaintiff’s mental 15 health impairments at step two. 16 3. 17 18 19 Plaintiff’s Symptom Statements Plaintiff argues that the ALJ failed to provide legally sufficient reasons for rejecting her symptom statements. ECF No. 14 at 18-19. It is generally the province of the ALJ to make determinations regarding the 20 credibility of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 21 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 22 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 23 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 24 and convincing.” Smolen, 80 F.3d at 1281; Lester, 81 F.3d at 834. “General 25 findings are insufficient: rather the ALJ must identify what testimony is not 26 credible and what evidence undermines the claimant’s complaints.” Lester, 81 27 F.3d at 834. 28 The ALJ found Plaintiff’s statements to be less than fully credible ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 concerning the intensity, persistence, and limiting effects of her symptoms. Tr. 21. 2 Plaintiff argues that the ALJ identified one reason for rejecting her statements, that 3 they were inconsistent with the objective medical evidence, and this one reason 4 failed to meet the specific, clear and convincing standard. ECF No. 14 at 18-19. 5 Defendant argues that the record contains affirmative evidence of malingering and 6 the ALJ was not required to provide any specific, clear and convincing reasons. 7 ECF No. 15 at 17-18. To support his assertion, Defendant cites to records from 8 Neuva Esperanza Counseling Center in July of 2012 which states that “CC 9 suspect’s client is malingering,” Tr. 495, 496, and “Clinician suspects client is 10 malingering,” Tr. 496. He additionally points to a September 2012 discharge note 11 from Neuva Esperanza Counseling Center stating “Clinician suspects client is 12 malingering.” Tr. 499. 13 With regard to “affirmative evidence of malingering,” The Ninth Circuit has 14 generally limited its finding of malingering to cases involving a strong evidentiary 15 support for doing so. In Mohammad v. Colvin, for example, the Court found 16 evidence of malingering based on “three instances in which [the claimant’s] 17 symptoms disappeared after arriving at the emergency room with her son, a 18 psychological evaluation that refers to a rule-out malingering diagnosis made by 19 another examining psychologist, and the provisional malingering diagnosis from 20 [an examining psychologist].” 595 Fed.Appx. 696, 697-98 (9th Cir. 2014); see 21 also Berry v. Astrue, 622 F.3d 1228, 1235 (9th Cir. 2010) (malingering established 22 where claimant reported refraining from doing volunteer work “for fear of 23 impacting his disability benefits,” and claimed disability dating from his last day of 24 employment despite admitting he left his job because his employer went out of 25 business and “probably would have worked longer had his employer continued to 26 operate.”). In contrast, in Cha Yang v. Commissioner of Social Security 27 Administration, a doctor’s notation “to R/O [rule out] malingering” was “not a 28 clear, affirmative diagnosis that [the claimant] was actually malingering” because ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 that doctor “failed to follow up on his suspicions and none of [the claimant’s] other 2 treating or examining doctors suggested that [the claimant] might be malingering.” 3 488 Fed.Appx. 203, 205 (9th Cir. 2012). Here, there are two major factors demonstrating that “affirmative evidence 4 5 of malingering” is not present in this case. First, the ALJ made no finding that 6 Plaintiff was malingering. He only mentioned the word malingering once in his 7 step two determination as a reason to discount Plaintiff’s mental health 8 impairments and not in the context of a credibility analysis. Second, reviewing the 9 records from Neuva Esperanza Counseling Center, it is unclear who is suspecting 10 Plaintiff of malingering. The identifiers “CC” or “Clinician” can be referring to 11 the “Care Coordinator,” see Tr. 526, who is further unidentified, or it could be 12 referring to Christy Chantharath, ARNP, Tr. 527. Therefore, the training and 13 reliability of the individual who suspects the malingering is unknown. The Court 14 cannot determine whether this is the conclusion of an acceptable medical source or 15 not. As such, the Court finds there was no “affirmative evidence of malingering” 16 in this case, and the ALJ was required to provide specific, clear and convincing 17 reasons to reject Plaintiff’s symptom statements. The ALJ’s only reason for rejecting Plaintiff’s symptoms statements, that 18 19 they were not supported by objective medical evidence, is not specific, clear, and 20 convincing reason to undermine Plaintiff’s credibility on its own. Although 21 objective medical evidence is a “relevant factor in determining the severity of the 22 claimant’s pain and its disabling effects,” it cannot serve as the sole ground for 23 rejecting a claimant’s credibility. Rollins v. Massanari, 261 F.3d 853, 857 (9th 24 Cir. 2001). Therefore, the ALJ failed to properly address Plaintiff’s symptom 25 statements and will readdress them upon remand. 26 4. 27 28 Step Five Plaintiff argues that the ALJ failed to meet his burden at step five because the determination was based on portions of the vocational expert’s testimony, ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 which was without evidentiary value because it was provided in response to an 2 incomplete hypothetical. ECF No. 14 at 19-20. Since the case is being remanded 3 for the ALJ to properly address the opinion evidence and Plaintiff’s symptom 4 statements, a new residual functional capacity determination will be necessary and 5 will trigger the need for new determinations at steps four and five. 6 REMEDY 7 The decision whether to remand for further proceedings or reverse and 8 award benefits is within the discretion of the district court. McAllister v. Sullivan, 9 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 10 where “no useful purpose would be served by further administrative proceedings, 11 or where the record has been thoroughly developed,” Varney v. Secretary of Health 12 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 13 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 14 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 15 (noting that a district court may abuse its discretion not to remand for benefits 16 when all of these conditions are met). This policy is based on the “need to 17 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 18 outstanding issues that must be resolved before a determination can be made, and it 19 is not clear from the record that the ALJ would be required to find a claimant 20 disabled if all the evidence were properly evaluated, remand is appropriate. See 21 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 22 F.3d 1172, 1179-80 (9th Cir. 2000). 23 In this case, it is not clear from the record that the ALJ would be required to 24 find Plaintiff disabled if all the evidence were properly evaluated. Further 25 proceedings are necessary for the ALJ to further address the medical source 26 opinions in the file and properly address Plaintiff’s symptom statements. This 27 necessitates new determinations at steps two through five. The ALJ will 28 supplement the record with any outstanding evidence and call a psychological ORDER GRANTING PLAINTIFF’S MOTION . . . - 14 1 expert, a medical expert, and a vocational expert to testify at a remand hearing. CONCLUSION 2 3 Accordingly, IT IS ORDERED: 4 1. 5 6 Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 7 GRANTED, in part, and the matter is REMANDED to the Commissioner for 8 additional proceedings consistent with this Order. 9 10 3. Application for attorney fees may be filed by separate motion. The District Court Executive is directed to file this Order and provide a copy 11 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 12 and the file shall be CLOSED. 13 DATED September 25, 2018. 14 15 16 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 15

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