Bennett v. Kijakazi, No. 4:2023cv05058 - Document 17 (E.D. Wash. 2024)
Court Description: ORDER GRANTING 11 PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER; Denying 15 Defendant's motion to affirm. The Commissioner'sfinal decision is REVERSED and this case is REMANDED for further proceedings under sentence four of 42 U.S.C. § 405(g). File is CLOSED. Signed by Magistrate Judge Alexander C Ekstrom. (BM, Case Administrator)
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Bennett v. Kijakazi Doc. 17 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Feb 12, 2024 1 SEAN F. MCAVOY, CLERK 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 GABRIEL B., No. 4:23-CV-5058-ACE 8 Plaintiff, 9 10 11 12 13 v. MARTIN O’MALLEY, COMMISSIONER OF SOCIAL SECURITY, 14 ORDER GRANTING PLAINTIFF’S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER ECF Nos. 11, 15 Defendant. 15 16 BEFORE THE COURT is Plaintiff’s Opening Brief and the 17 Commissioner’s Brief in response. ECF Nos. 11, 15. Attorney Chad Hatfield 18 represents Gabriel B. (Plaintiff); Special Assistant United States Attorney Sarah 19 Moum represents the Commissioner of Social Security (Defendant). The parties 20 have consented to proceed before the undersigned by operation of Local Magistrate 21 Judge Rule (LMJR) 2(b)(2), as no party returned a Declination of Consent Form to 22 the Clerk’s Office by the established deadline. ECF No. 6. After reviewing the 23 administrative record and the briefs filed by the parties, the Court GRANTS 24 Plaintiff’s motion to reverse the decision of the Commissioner, DENIES 25 Defendant’s motion to affirm, and REMANDS the matter for further proceedings 26 under sentence four of 42 U.S.C. § 405(g). 27 // 28 // ORDER GRANTING PLAINTIFF’S MOTION - 1 Dockets.Justia.com 1 JURISDICTION 2 Plaintiff filed applications for benefits on December 14, 2017, alleging 3 disability since February 1, 2017. The applications were denied initially and upon 4 reconsideration. Administrative Law Judge (ALJ) Mark Kim held a hearing on 5 February 12, 2020, and issued an unfavorable decision on March 2, 2020. Tr. 15- 6 24. The Appeals Council denied review on August 3, 2020. Tr. 1-6. This Court 7 subsequently remanded the matter on January 24, 2022. Tr. 486-88. The ALJ held 8 a second hearing on January 10, 2023, and issued an unfavorable decision on 9 March 16, 2023. Tr. 389-405. Plaintiff appealed this final decision of the 10 11 12 Commissioner on April 25, 2023. ECF No. 1. STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 13 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 14 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 15 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 16 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 17 only if it is not supported by substantial evidence or if it is based on legal error. 18 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 19 defined as being more than a mere scintilla, but less than a preponderance. Id. at 20 1098. Put another way, substantial evidence is such relevant evidence as a 21 reasonable mind might accept as adequate to support a conclusion. Richardson v. 22 Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 23 U.S. 197, 229 (1938)). If the evidence is susceptible to more than one rational 24 interpretation, the Court may not substitute its judgment for that of the ALJ. 25 Tackett, 180 F.3d at 1098; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 26 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or 27 if conflicting evidence supports a finding of either disability or non-disability, the 28 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 ORDER GRANTING PLAINTIFF’S MOTION - 2 1 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be 2 set aside if the proper legal standards were not applied in weighing the evidence 3 and making the decision. Brawner v. Sec’y of Health and Human Services, 839 4 F.2d 432, 433 (9th Cir. 1988). 5 6 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 7 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 8 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through 9 four, the claimant bears the burden of establishing a prima facie case of disability. 10 Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes 11 that a physical or mental impairment prevents the claimant from engaging in past 12 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 13 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 14 the Commissioner to show (1) the claimant can make an adjustment to other work 15 and (2) the claimant can perform other work that exists in significant numbers in 16 the national economy. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a 17 claimant cannot make an adjustment to other work in the national economy, the 18 claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 19 20 21 22 23 24 ADMINISTRATIVE FINDINGS On March 16, 2023, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. Tr. 389-405. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since February 1, 2017, the alleged onset date. Tr. 392. At step two, the ALJ determined Plaintiff had the following severe 25 impairments: psychotic disorder; major depressive disorder; and generalized 26 anxiety disorder. Tr. 392. 27 28 At step three, the ALJ found these impairments did not meet or equal the requirements of a listed impairment. Tr. 394. ORDER GRANTING PLAINTIFF’S MOTION - 3 1 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 2 determined Plaintiff could perform a full range of work at all exertional levels but 3 with the following nonexertional limitations: he can perform simple, routine tasks 4 with a Specific Vocational Preparation of 2 or less involving only occasional and 5 simple changes in a work setting; and he can perform work involving no 6 interaction with the public and only occasional and superficial interaction with co- 7 workers. Tr. 397. 8 9 At step four, the ALJ found Plaintiff capable of performing past relevant work as a concrete laborer. Tr. 403. 10 Alternatively, at step five, the ALJ found there are jobs that exist in 11 significant numbers in the national economy that Plaintiff can perform, to include 12 laundry sorter, collator operator, and office cleaner. Tr. 404. 13 14 The ALJ thus concluded Plaintiff has not been disabled since the alleged onset date. Tr. 405. 15 ISSUES 16 The question presented is whether substantial evidence supports the ALJ’s 17 decision denying benefits and, if so, whether that decision is based on proper legal 18 standards. 19 Plaintiff raises the following issues for review: (A) whether the ALJ 20 properly evaluated the medical opinion evidence; (B) whether the ALJ properly 21 evaluated Plaintiff’s subjective complaints; (C) whether the ALJ erred at step 22 three; and (D) whether the ALJ erred at steps four and five. ECF No. 11 at 6. 23 24 DISCUSSION A. Medical Opinions 25 Under regulations applicable to this case, the ALJ is required to articulate 26 the persuasiveness of each medical opinion, specifically with respect to whether 27 the opinions are supported and consistent with the record. 20 C.F.R. § 28 416.920c(a)-(c). An ALJ’s consistency and supportability findings must be ORDER GRANTING PLAINTIFF’S MOTION - 4 1 supported by substantial evidence. See Woods v. Kijakazi, 32 F.4th 785, 792 (9th 2 Cir. 2022). 3 4 Plaintiff argues the ALJ misevaluated four medical opinions. ECF No. 11 at 9-17. The Court addresses each in turn. 5 1. N.K. Marks, Ph.D. 6 Dr. Marks examined Plaintiff on November 26, 2018, conducting a clinical 7 interview and performing a mental status evaluation. Tr. 317-22. Dr. Marks 8 assessed the severity of Plaintiff’s mental health impairments as “marked” and 9 opined, among other things, Plaintiff was severely limited in performing activities 10 within a schedule, maintaining regular attendance, being punctual within 11 customary tolerances without special supervision, making simple work-related 12 decisions, and setting realistic goals and planning independently; and markedly 13 limited in, among other things, completing a normal work day and work week 14 without interruptions from psychologically-based symptoms. Tr. 320. The ALJ 15 found this opinion unpersuasive. Tr. 402. 16 The ALJ first discounted the opinion on the ground “it appears to be based 17 largely on the claimant’s subjective complaints and his reported history of 18 uncontrolled symptomology.” Tr. 402. On this record, the ALJ erred by 19 discounting the doctor’s opinion on this ground. See Buck v. Berryhill, 869 F.3d 20 1040, 1049 (9th Cir. 2017) (“The report of a psychiatrist should not be rejected 21 simply because of the relative imprecision of the psychiatric methodology. 22 Psychiatric evaluations may appear subjective, especially compared to evaluation 23 in other medical fields. Diagnoses will always depend in part on the patient’s self- 24 report, as well as on the clinician’s observations of the patient. But such is the 25 nature of psychiatry. Thus, the rule allowing an ALJ to reject opinions based on 26 self-reports does not apply in the same manner to opinions regarding mental 27 illness.”) (cleaned up); Lebus v. Harris, 526 F. Supp. 56, 60 (N.D. Cal. 1981) 28 (“Courts have recognized that a psychiatric impairment is not as readily amenable ORDER GRANTING PLAINTIFF’S MOTION - 5 1 to substantiation by objective laboratory testing as is a medical impairment and 2 that consequently, the diagnostic techniques employed in the field of psychiatry 3 may be somewhat less tangible than those in the field of medicine. In general, 4 mental disorders cannot be ascertained and verified as are most physical illnesses, 5 for the mind cannot be probed by mechanical devises in order to obtain objective 6 clinical manifestations of mental illness.”). The record indicates the doctor’s 7 opinion was based on clinical observations and does not indicate the doctor found 8 Plaintiff to be untruthful. Therefore, this is no evidentiary basis for rejecting the 9 opinion. Cf. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199–200 (9th Cir. 10 2008) (noting an ALJ does not validly reject a doctor’s opinion “by questioning the 11 credibility of the patient’s complaints where the doctor does not discredit those 12 complaints and supports his ultimate opinion with his own observations”). The 13 ALJ thus erred by discounting the doctor’s opinion on this ground. 14 The ALJ next discounted the opinion on the ground the doctor’s “own 15 isolated mental status examination does not support such severe limitations 16 because he was cooperative with good eye contact despite being guarded, quiet, 17 and perceived as naïve.” Tr. 402. These are not reasonable inconsistencies. 18 Plaintiff’s performance during his clinical interview with Dr. Marks – conducted in 19 a close and sterile setting with a psychiatric professional – is not reasonably 20 inconsistent with the doctor’s opined limitations concerning Plaintiff’s ability to, 21 among other things, maintain regular attendance and complete a normal work day 22 and work week without interruptions from psychologically-based symptoms. Cf. 23 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (rather than merely stating 24 their conclusions, ALJs “must set forth [their] own interpretations and explain why 25 they, rather than the doctors’, are correct”) (citing Embrey v. Bowen, 849 F.2d 418, 26 421-22 (9th Cir. 1988)). The ALJ thus erred by discounting the opinion on this 27 ground. 28 ORDER GRANTING PLAINTIFF’S MOTION - 6 1 Finally, the ALJ discounted the opinion as inconsistent with Plaintiff’s 2 “reports of doing well on medications, his repeatedly refilled medication regimen, 3 his ability to live independently, his ability to manage his appointments and 4 medication, his ability to take public transportation, and his ability to interact with 5 family and neighbors appropriately.” Tr. 402. This finding is erroneous for two 6 reasons. First, the ALJ did not cite to any evidence in support of this finding. An 7 ALJ’s rejection of a clinician’s opinion on the ground that it is contrary to 8 unspecified evidence in the record, as here, is “broad and vague,” and fails “to 9 specify why the ALJ felt the [clinician’s] opinion was flawed.” McAllister v. 10 Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). It is not the job of the reviewing court 11 to comb the administrative record to find specific conflicts. Burrell v. Colvin, 775 12 F.3d 1133, 1138 (9th Cir. 2014). Second, this finding is substantially similar to the 13 finding that the ALJ previously made in the first decision and that the Appeals 14 Council explicitly rejected as unsupported. See Tr. 22 (ALJ’s evaluation of the 15 opinion of Dr. Marks); Tr. 497-98 (Appeals Council vacating the ALJ’s rejection 16 of the opinions of Dr. Marks and ARNP Pitts, specifically noting “[a] review of 17 both opinions show that their evaluation notes supported them”). By issuing a 18 substantially similar finding, the ALJ contravened the clear mandate of the 19 Appeals Council. The Court’s review of this already-rejected reason is therefore 20 precluded by the doctrine of the law of the case. See Stacy v. Colvin, 825 F.3d 21 563, 567 (9th Cir. 2016). The ALJ thus erred by discounting the doctor’s opinion 22 on this ground. 23 The ALJ accordingly erred by discounting the doctor’s opinion. 24 2. Daniel Pitts, ARNP. 25 ARNP Pitts, Plaintiff’s treating mental health provider, prepared a mental 26 residual functional assessment on February 3, 2020, wherein he assessed, among 27 other things, a series of severe and marked limitations and opined Plaintiff would 28 be off-task over 30% of the time and would miss at least 4 days per month if ORDER GRANTING PLAINTIFF’S MOTION - 7 1 attempting to work a 40-hour workweek. Tr. 382-85. The ALJ found this opinion 2 unpersuasive. Tr. 401. 3 The ALJ first discounted the opinion as inconsistent with the clinician’s 4 treatment notes, specifically indicating, among other things, Plaintiff “was 5 observed to be calm, pleasant, and cooperative with good eye contact.” Tr. 401. 6 These are not reasonable inconsistencies. Plaintiff’s demeanor and eye contact are 7 not reasonably inconsistent with the clinician’s opined limitations concerning, 8 among other things, Plaintiff’s absenteeism. Further, this finding directly 9 contravenes the conclusion of the Appeals Council, which, as noted above, 10 determined that the clinician’s treatment notes supported his opinion. See Tr. 498. 11 The ALJ thus erred by discounting the opinion on this ground. 12 The ALJ also discounted the opinion as inconsistent with Plaintiff’s “reports 13 of doing well on medications, his repeatedly refilled medication regimen, his 14 ability to live independently, his ability to manage his appointments and 15 medication, his ability to take public transportation, and his ability to interact with 16 family and neighbors appropriately.” This mirrors one of the grounds used to 17 discount the opinion Dr. Morgan, as discussed above. This rescript similarly does 18 not withstand scrutiny. As with Dr. Marks, the ALJ failed to cite any evidence in 19 support of this finding. Further, as noted above, the Appeals Council explicitly 20 rejected a substantially similar finding as unsupported. The Court’s review of this 21 already-rejected reason is therefore precluded by the doctrine of the law of the 22 case. The ALJ thus erred by discounting the opinion on this ground. 23 The ALJ accordingly erred by discounting the opinion of ARNP Pitts. 24 3. David Morgan, Ph.D. 25 Dr. Morgan examined Plaintiff on February 27, 2020, conducting a clinical 26 interview and performing a mental status evaluation. Tr. 741-46. Dr. Morgan 27 assessed the severity of Plaintiff’s mental health impairments as “marked” and 28 opined, among other things, Plaintiff was markedly limited in performing activities ORDER GRANTING PLAINTIFF’S MOTION - 8 1 within a schedule, maintaining regular attendance, being punctual within 2 customary tolerances without special supervision, learning new tasks, performing 3 routine tasks without special supervision, adapting to changes in a routine work 4 setting, being aware of normal hazards and taking appropriate precautions, asking 5 simple questions or requesting assistance, communicating and performing 6 effectively in a work setting, maintaining appropriate behavior in a work setting, 7 completing a normal work day and work week without interruptions from 8 psychologically-based symptoms, and setting realistic goals and planning 9 independently. Tr. 744. The ALJ found this opinion unpersuasive. Tr. 402. 10 The ALJ first discounted the opinion as inconsistent with the doctor’s 11 assessment that Plaintiff’s “fund of knowledge, abstract thoughts, insight, 12 judgment, presentation, speech, behavior, and thoughts” was “within normal 13 limits.” Tr. 402. These are not reasonable inconsistencies, as they neither are 14 reasonably related to nor sufficiently undermine the doctor’s opined limitations 15 concerning, among other things, Plaintiff’s absenteeism. The ALJ thus erred by 16 discounting the opinion on this ground. 17 The ALJ also discounted the opinion as inconsistent with Plaintiff’s 18 “reported response to medications, his ability to manage his medications and 19 appointments, his ability to live independently, his ability to take public 20 transportation, and his generally intact activities of daily living.” Tr. 402. This, 21 too, is a rescript of findings addressed above. As with Dr. Marks and ARNP Pitts, 22 the ALJ failed to cite any evidence in support of this finding. As noted, the 23 Appeals Council rejected a substantially similar finding as unsupported. Although 24 the Appeals Council’s order referred only to the opinions of Dr. Marks and ARNP 25 Pitts, the Court, on its own view of the record, concludes the reasoning behind the 26 Appeals Council’s vacatur of the ALJ’s rejection of those two opinions applies 27 with equal force to the ALJ’s rejection of Dr. Morgan’s opinion. Further, as 28 described in more detail below, Plaintiff’s minimal activities do not sufficiently ORDER GRANTING PLAINTIFF’S MOTION - 9 1 undermine the doctor’s opinion. The ALJ thus erred by discounting the doctor’s 2 opinion on this ground. 3 The ALJ accordingly erred by discounting Dr. Morgan’s opinion. 4 4. Ioly Tabitha Lewis, PMHNP. 5 PMHNP Lewis examined Plaintiff on August 15, 2021, conducting a clinical 6 interview and performing a mental status evaluation. Tr. 786-92. PMHNP Lewis 7 assessed Plaintiff’s ability to manage funds as poor; ability to understand, 8 remember and carry out simple instructions as fair; ability to understand, 9 remember and carry out simple complex as fair; ability to sustain concentration 10 and persist in work-related activity at a reasonable pace, including regular 11 attendance at work and completing work without interruption, as poor; and ability 12 to interact with coworkers and superiors and the public and adapt to the usual 13 stresses encountered in the workplace as fair. Tr. 792. 14 The ALJ found this opinion “partially persuasive as the severity of some 15 limitations are not supported by the evaluator’s own finding or relevant evidence 16 of record. More specifically, no abnormalities were observed in his thoughts, 17 presentation, or ability to interact with the clinician appropriately but some deficits 18 were observed in his memory and concentration.” Tr. 403. The ALJ noted “[s]uch 19 significant limitations are not consistent with other evidence of record because on 20 most all exams, his attention span and concentration were appropriate and/or 21 within normal limits on most all instances” and Plaintiff “tracked the conversation 22 and answered questions appropriately.” Tr. 403. These are not reasonable 23 inconsistencies, as they neither reasonably relate nor sufficiently undermine the 24 clinician’s opined limitations concerning Plaintiff’s ability to, among other things, 25 maintain regular attendance at work. The ALJ thus erred by discounting the 26 opinion on this ground. 27 28 The ALJ also discounted the opinion as inconsistent with Plaintiff’s “reported response to medications, his ability to manage his medications and ORDER GRANTING PLAINTIFF’S MOTION - 10 1 appointments, his ability to live independently, his ability to take public 2 transportation, and his generally intact activities of daily living.” Tr. 403. This, 3 too, is a rescript of findings addressed above. As with Dr. Marks, ARNP Pitts, and 4 Dr. Morgan, the ALJ failed to cite any evidence in support of this finding. As 5 noted above, although the Appeals Council’s order referred only to the opinions of 6 Dr. Marks and ARNP Pitts, the Court, on its own view of the record, concludes the 7 reasoning behind the Appeals Council’s vacatur of the ALJ’s rejection of those two 8 opinions also applies with equal force to the ALJ’s rejection of PMHNP Lewis’s 9 opinion. Further, as described in more detail below, Plaintiff’s minimal activities 10 do not sufficiently undermine the clinician’s opinion. The ALJ thus erred by 11 discounting the opinion on this ground. 12 13 The ALJ accordingly erred by discounting the opinion of PMHNP Lewis. B. Subjective Complaints 14 Plaintiff contends the ALJ erred by not properly assessing Plaintiff’s 15 symptom complaints. ECF No. 13 at 4-13. Where, as here, the ALJ determines a 16 claimant has presented objective medical evidence establishing underlying 17 impairments that could cause the symptoms alleged, and there is no affirmative 18 evidence of malingering, the ALJ can only discount the claimant’s testimony as to 19 symptom severity by providing “specific, clear, and convincing” reasons supported 20 by substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). 21 The Court concludes the ALJ failed to offer clear and convincing reasons to 22 discount Plaintiff’s testimony. 23 The ALJ first discounted Plaintiff’s testimony as inconsistent with the 24 medical evidence. Tr. 399-400. However, because the ALJ erred by discounting 25 four medical opinions, and necessarily failed to properly evaluate the medical 26 evidence, as discussed above, this is not a valid ground to discount Plaintiff’s 27 testimony. 28 ORDER GRANTING PLAINTIFF’S MOTION - 11 1 The ALJ next discounted Plaintiff’s testimony as inconsistent with his 2 activities. In support, the ALJ noted Plaintiff, among other minimal activities, 3 “shopped in stores for necessities,” “could manage his bills and count change,” and 4 “did his own cleaning, cooking, and chores.” Tr. 400. Plaintiff’s activities are 5 neither inconsistent with nor a valid reason to discount his allegations. See 6 Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (“House chores, cooking 7 simple meals, self-grooming, paying bills, writing checks, and caring for a cat in 8 one’s own home, as well as occasional shopping outside the home, are not similar 9 to typical work responsibilities.”); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th 10 Cir. 2001) (“This court has repeatedly asserted that the mere fact that a plaintiff has 11 carried on certain daily activities, such as grocery shopping, driving a car, or 12 limited walking for exercise, does not in any way detract from her credibility as to 13 her overall disability. One does not need to be ‘utterly incapacitated’ in order to be 14 disabled.”) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); Reddick, 15 157 F.3d at 722 (“Several courts, including this one, have recognized that disability 16 claimants should not be penalized for attempting to lead normal lives in the face of 17 their limitations.”); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (noting 18 that a disability claimant need not “vegetate in a dark room” in order to be deemed 19 eligible for benefits). Similarly, Plaintiff’s activities do not “meet the threshold for 20 transferable work skills.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing 21 Fair, 885 F.2d at 603). The ALJ accordingly erred by discounting Plaintiff’s 22 testimony on this ground. 23 Finally, the ALJ discounted Plaintiff’s testimony on the ground “there is 24 evidence that the claimant stopped working or did not return to the work force for 25 reasons not related to his allegedly disabling impairment.” Tr. 401. This was 26 erroneous for two reasons. First, although the ALJ cited to one page of one exhibit 27 and a separate entire exhibit, the ALJ failed to articulate how these records 28 substantiate this finding or otherwise give context to these portions of the record. ORDER GRANTING PLAINTIFF’S MOTION - 12 1 While the Commissioner attempts to expand on these unelaborated citations, see 2 ECF No. 15 at 6-7, the Court may only review the ALJ’s decision “based on the 3 reasoning and factual findings offered by the ALJ—not post hoc rationalizations 4 that attempt to intuit what the adjudicator may have been thinking.” Bray v. 5 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (citations 6 omitted). Second, “one weak reason” – even if supported by substantial evidence – 7 “is insufficient to meet the ‘specific, clear and convincing’ standard” for rejecting a 8 claimant’s testimony. Burrell, 775 F.3d at 1140 (quoting Molina v. Astrue, 674 9 F.3d 1104, 1112 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 10 416.920(a)). The ALJ accordingly erred by discounting Plaintiff’s testimony on 11 this ground. 12 13 The ALJ accordingly erred by discounting Plaintiff’s testimony. SCOPE OF REMAND 14 This case must be remanded because the ALJ harmfully misevaluated the 15 medical evidence and Plaintiff’s testimony. Plaintiff contends the Court should 16 remand for an immediate award of benefits. ECF No. 11 at 21-22. Such a remand 17 should be granted only in a rare case and this is not such a case. The medical 18 opinions and Plaintiff’s testimony must be reweighed and this is a function the 19 Court cannot perform in the first instance on appeal. Further proceedings are thus 20 not only helpful but necessary. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 21 (9th Cir. 2015) (noting a remand for an immediate award of benefits is an “extreme 22 remedy,” appropriate “only in ‘rare circumstances’”) (quoting Treichler v. Comm’r 23 of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)). 24 Because the ALJ misevaluated the medical evidence and Plaintiff’s 25 testimony, the ALJ will necessarily need to reassess Plaintiff’s impairments at step 26 three and determine whether the RFC needs to be adjusted. For this reason, the 27 Court need not reach Plaintiff’s remaining assignments of error. See PDK Labs. 28 Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (“[I]f it is not necessary to decide ORDER GRANTING PLAINTIFF’S MOTION - 13 1 more, it is necessary not to decide more.”) (Roberts, J., concurring in part and 2 concurring in the judgment). 3 On remand, the ALJ shall reevaluate the opinions of Drs. Marks and 4 Morgan, ARNP Pitts, and PMHNP Lewis, reassess Plaintiff’s testimony, develop 5 the record and redetermine the RFC as needed, and proceed to the remaining steps 6 as appropriate. CONCLUSION 7 8 Having reviewed the record and the ALJ’s findings, the Commissioner’s 9 final decision is REVERSED and this case is REMANDED for further 10 proceedings under sentence four of 42 U.S.C. § 405(g). Therefore, IT IS 11 HEREBY ORDERED: 12 1. Plaintiff’s motion to reverse, ECF No. 11, is GRANTED. 13 2. Defendant’s motion to affirm, ECF No. 15, is DENIED. 14 The District Court Executive is directed to file this Order and provide a copy 15 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 16 the file shall be CLOSED. 17 IT IS SO ORDERED. 18 DATED February 12, 2024. 19 20 _____________________________________ ALEXANDER C. EKSTROM 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION - 14
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