Mertz v. Commissioner of Social Security, No. 1:2016cv03124 - Document 18 (E.D. Wash. 2017)
Court Description: ORDER GRANTING in part and REMANDING to the Commissioner for additional proceedings Plaintiff's 13 Motion for Summary Judgment. Denying Defendant's 15 Motion for Summary Judgment. File is closed. Signed by Magistrate Judge Mary K. Dimke. (RG, Ops Supervisor)
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Mertz v. Commissioner of Social Security Doc. 18 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ANGELA MERTZ, No. 1:16-cv-03124-MKD 8 10 COMMISSION OF SOCIAL ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 SECURITY, ECF Nos. 13, 15 Plaintiff, 9 vs. 12 Defendant. BEFORE THE COURT are the parties’ cross-motions for summary 13 14 judgment. ECF Nos. 13, 15. The parties consented to proceed before a magistrate 15 judge. ECF No. 7. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 grants Plaintiff’s motion (ECF No. 13) and denies Defendant’s motion (ECF No. 18 15). 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 22 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 3 1383(c)(3). 4 5 STANDARD OF REVIEW A claimant must satisfy two conditions to be considered “disabled” within 6 the meaning of the Social Security Act. First, the claimant must be “unable to 7 engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of not less than twelve 10 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 11 “of such severity that he is not only unable to do his previous work[,] but cannot, 12 considering his age, education, and work experience, engage in any other kind of 13 substantial gainful work which exists in the national economy.” 42 U.S.C. § 14 423(d)(2)(A). 15 The Commissioner has established a five-step sequential analysis to 16 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 17 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 18 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 19 “substantial gainful activity,” the Commissioner must find that the claimant is not 20 disabled. 20 C.F.R. § 404.1520(b). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 22 1 If the claimant is not engaged in substantial gainful activity, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 4 from “any impairment or combination of impairments which significantly limits 5 [his or her] physical or mental ability to do basic work activities,” the analysis 6 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 7 does not satisfy this severity threshold, however, the Commissioner must find that 8 the claimant is not disabled. 20 C.F.R. § 404.1520(c). 9 At step three, the Commissioner compares the claimant’s impairment to 10 severe impairments recognized by the Commissioner to be so severe as to preclude 11 a person from engaging in substantial gainful activity. 20 C.F.R. § 12 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 13 enumerated impairments, the Commissioner must find the claimant disabled and 14 award benefits. 20 C.F.R. § 404.1520(d). 15 If the severity of the claimant’s impairment does not meet or exceed the 16 severity of the enumerated impairments, the Commissioner must pause to assess 17 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 18 defined generally as the claimant’s ability to perform physical and mental work 19 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 20 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 22 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in 3 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 4 capable of performing past relevant work, the Commissioner must find that the 5 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 6 performing such work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing other work in the national economy. 9 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 10 must also consider vocational factors such as the claimant’s age, education and 11 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 12 adjusting to other work, the Commissioner must find that the claimant is not 13 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to 14 other work, analysis concludes with a finding that the claimant is disabled and is 15 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 16 The claimant bears the burden of proof at steps one through four above. 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 18 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 19 capable of performing other work; and (2) such work “exists in significant 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 22 1 numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 2 700 F.3d 386, 389 (9th Cir. 2012). 3 ALJ’S FINDINGS 4 On February 28, 2008, Plaintiff applied for Title II disability insurance 5 benefits alleging an onset date of October 1, 2007. Tr. 309-11. The application 6 was denied initially, Tr. 187-89, and on reconsideration, Tr. 193-95. Plaintiff 7 appeared at a hearing before an Administrative Law Judge (ALJ) on June 10, 2010. 8 Tr. 47-64. On July 15, 2010, the ALJ denied Plaintiff’s claim. Tr. 144-58. The 9 Appeals Council remanded Plaintiff’s case because the assessed RFC conflicted 10 with medical expert testimony that Plaintiff could only stand and walk an hour at a 11 time up to four hours per day. Tr. 159-62. Plaintiff appeared for a second hearing 12 on February 7, 2012. Tr. 95-112. Again, the ALJ denied Plaintiff’s claim. 13 Tr. 163-82. The Appeals Council remanded Plaintiff’s case, for consideration of 14 the Washington State Department of Social and Health Services Transmittal 15 Summary of a Medical Disability Decision dated November 7, 2007. Tr. 183-86. 16 Plaintiff appeared for a third hearing before the instant ALJ on June 25, 2014. 17 Tr. 113-41. The ALJ denied Plaintiff’s claim on October 27, 2014. Tr. 23-44. 18 At the outset, the ALJ found that the Plaintiff met the insured status 19 requirements of the Social Security Act through September 30, 2008. Tr. 28. A 20 claimant applying for disability insurance benefits must show that their disability 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 22 1 began before their date last insured. 42 U.S.C. § 423(a)(1)(A). The adjudicative 2 period, therefore, is from the date of alleged disability onset until the date last 3 insured, here from October 1, 2007 to September 30, 2008. Tr. 27. 4 At step one, the ALJ found that Plaintiff had not engaged in substantial 5 gainful activity since October 1, 2007. Tr. 28. At step two, the ALJ found 6 Plaintiff had the following severe impairments: history of pulmonary emboli; 7 coagulation disorder stable on Coumadin; headaches; right knee patellar 8 chondromalacia and status post two knee surgeries; PTSD; chronic sinusitis 9 exacerbated by tobacco abuse; and hyperthyroidism. Tr. 28. At step three, the 10 ALJ found that Plaintiff did not have an impairment or combination of 11 impairments that met or medically equaled a listed impairment. Tr. 29. The ALJ 12 then concluded that Plaintiff had the RFC to perform light work, with the 13 following non-exertional limitations: 14 15 16 17 18 19 [S]he was able to sit for six hours in an eight-hour day and she was able to stand and/or walk for one hour at a time, for a total of four hours in an eighthour day. She could never climb ladders, ropes, or scaffolds. She could never kneel or crawl. She was able to occasionally climb ramps and stairs. She was able to occasionally balance, stoop, and crouch. She was able to frequently, but not constantly, operate foot controls. She needed to avoid vibrating tools, machines and vehicles. She needed to avoid hazardous working conditions such as proximity to unprotected heights and moving machinery. She was able to adapt to a predictable work routine with no more than occasional changes. She was able to interact with the public on a superficial basis. 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 22 1 Tr. 30. At step four, the ALJ found that Plaintiff was unable to perform any 2 relevant past work. Tr. 35. The ALJ found at step five that there were jobs that 3 existed in significant numbers in the national economy that Plaintiff could perform 4 within her assessed RFC, such as cashier, office helper, and storage facility rental 5 clerk. Tr. 35-36. On that basis, the ALJ concluded that Plaintiff was not disabled 6 as defined in the Social Security Act during the adjudicative period. Tr. 36. 7 On May 10, 2016, the Appeals Council denied review, Tr. 1-6, making the 8 Commissioner’s decision final for purposes of judicial review. See 42 U.S.C. 9 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. 10 11 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 12 her disability insurance benefits under Title II of the Social Security Act. ECF No. 13 13. Plaintiff raises the following issues for this Court’s review: 14 1. Whether the ALJ properly weighed the medical opinion evidence; and 15 2. Whether the ALJ properly rejected Plaintiff’s symptom testimony. 16 ECF No. 13 at 5. 17 18 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 22 1 ANALYSIS 2 A. Medical Opinion Evidence 3 Plaintiff faults the ALJ for discounting the medical opinions of Emma 4 Billings Ph.D., Venu Bellum, M.D., and a Washington State DSHS disability 5 approval document.1 ECF No. 13 at 15-19. There are three types of physicians: “(1) those who treat the claimant 6 7 (treating physicians); (2) those who examine but do not treat the claimant 8 (examining physicians); and (3) those who neither examine nor treat the claimant 9 but who review the claimant’s file (nonexamining or reviewing physicians).” 10 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 11 “Generally, a treating physician’s opinion carries more weight than an examining 12 physician’s, and an examining physician’s opinion carries more weight than a 13 reviewing physician’s.” Id. “In addition, the regulations give more weight to 14 opinions that are explained than to those that are not, and to the opinions of 15 16 17 1 Plaintiff notes that the ALJ assigned Dr. Palmatier’s opinion “some weight” 18 however, Plaintiff makes no argument that this was in error. ECF No. 13 at 15. 19 Finding no obvious assignment of error or argument regarding Dr. Palmatier’s 20 opinion, the Court will not take up this issue. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 22 1 specialists concerning matters relating to their specialty over that of 2 nonspecialists.” Id. (citations omitted). 3 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 4 reject it only by offering “clear and convincing reasons that are supported by 5 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 6 “However, the ALJ need not accept the opinion of any physician, including a 7 treating physician, if that opinion is brief, conclusory and inadequately supported 8 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 9 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 10 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 11 may only reject it by providing specific and legitimate reasons that are supported 12 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 13 F.3d 821, 830-31 (9th Cir. 1995)). 14 15 1. Dr. Billings Dr. Billings performed a consultative psychological examination on May 12, 16 2008. Tr. 526-32. She opined that Plaintiff “continues to experience Post 17 Traumatic Stress Disorder symptoms, which do result in anxiety attacks that occur 18 on an occasional basis and interfere with her function for varied periods of time.” 19 Tr. 532. Dr. Billings noted that Plaintiff reported her anxiety attacks occur “two to 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 22 1 three times per month and may persist for one hour to all day.” Tr. 532. The ALJ 2 gave “significant weight” to Dr. Billings’ opinion. Tr. 33. Plaintiff contends that the ALJ erred in considering Dr. Billings’ opinion 3 4 because he ignored the opined limitation that Plaintiff would have disabling 5 anxiety attacks two to three times per month. ECF No. 13 at 17-18. The ALJ took 6 note of this opined limitation in considering Dr. Billings’ opinion. Tr. 33 (“Dr. 7 Billings stated that the claimant had PTSD symptoms, which result in anxiety 8 attacks on an occasional basis and interfere with her function for variable periods 9 of time.”). The ALJ’s assessed RFC does not include a limitation that would 10 accommodate variable intermittent anxiety attacks multiple times per month. See 11 Tr. 30. 12 At the hearing before the ALJ, a vocational expert testified that an 13 individual with such panic attacks would not be able to maintain employment.2 14 Tr. 109. 15 16 2 The vocational expert was asked the following question: “Please consider as a 17 separate hypothetical, again assuming the same individual of the claimant’s age, 18 education and vocational background, and further assume the individual, due to 19 (sic) would have panic attacks or would not be able to engage in work like activity 20 at unscheduled times from one hour to all day, and this would occur at the 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 22 1 Here, the ALJ fully credited Dr. Billings’ opinion. Tr. 33. The vocational 2 expert testified that if Plaintiff suffered from all of Dr. Billings’ opined limitations, 3 particularly panic attacks two to three times per month, she would be unable to 4 maintain competitive employment. Tr. 109. The ALJ’s assigned RFC does not 5 incorporate this limitation; nor is it otherwise discounted. See Tr. 30. It is error 6 which cannot be considered harmless for the ALJ to fully credit an opinion and fail 7 to incorporate an opined limitation into the RFC which the vocational expert 8 testified would prohibit employment. See Molina v. Astrue, 674 F.3d 1104, 1115 9 (9th Cir. 2012) (an error is harmless only when it is “inconsequential to the [ALJ’s] 10 ultimate nondisability determination”). 11 Defendant argues that the ALJ did not err in considering Dr. Billings’ 12 opinion because Plaintiff self-reported the frequency of her panic attacks and the 13 ALJ properly discounted Plaintiff’s symptom testimony. ECF No. 15 at 8-9. 14 However, Defendant asks this Court to assume an argument the ALJ did not make. 15 This Court “cannot affirm the decision of an agency on a ground that the agency 16 17 frequency of two to three times per month on average, in your opinion would such 18 an individual be able to maintain competitive employment?” Tr. 109. To which, 19 the VE responded: “No. I don’t believe so. Not with that potential level of 20 absenteeism and the unpredictable quality of it.” Tr. 109. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 22 1 did not invoke in making its decision.” Pinto v. Massanari, 249 F.3d 840, 847 (9th 2 Cir. 2001) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). Here, the 3 ALJ did not invoke Plaintiff’s discounted symptom testimony to dismiss the panic 4 attack limitation in Dr. Billings’ opinion. See Tr. 33. Therefore, this Court cannot 5 properly overlook Dr. Billings’ panic attack limitation based on discounted 6 symptom testimony. 7 Plaintiff also challenges the ALJ’s treatment of Dr. Bellum and a 8 Washington State Department of Social and Health Services (DSHS) Transmittal 9 of Medical Disability form in November 2007. Considering the case is being 10 remanded for the ALJ to properly consider Dr. Billings’ opinion, the ALJ is also 11 instructed on remand to readdress the remaining medical source opinions contained 12 in the record. 13 14 B. Credibility Determination Plaintiff faults the ALJ for failing to provide specific findings with clear and 15 convincing reasons for discrediting her symptom claims. ECF No. 15 at 13-17. 16 An ALJ engages in a two-step analysis to determine whether a claimant’s 17 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 18 determine whether there is objective medical evidence of an underlying 19 impairment which could reasonably be expected to produce the pain or other 20 symptom alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 22 1 “The claimant is not required to show that her impairment could reasonably be 2 expected to cause the severity of the symptom she has alleged; she need only show 3 that it could reasonably have caused some degree of the symptom.” Vasquez v. 4 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 5 Second, “[i]f the claimant meets the first test and there is no evidence of 6 malingering, the ALJ can only reject the claimant’s testimony about the severity of 7 the symptoms if she gives ‘specific, clear and convincing reasons’ for the 8 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 9 citations and quotations omitted). “General findings are insufficient; rather, the 10 ALJ must identify what testimony is not credible and what evidence undermines 11 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); Thomas v. 12 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility 13 determination with findings sufficiently specific to permit the court to conclude 14 that the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and 15 convincing [evidence] standard is the most demanding required in Social Security 16 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 17 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 18 In making an adverse credibility determination, the ALJ may consider, inter 19 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 20 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 22 1 daily living activities; (4) the claimant’s work record; and (5) testimony from 2 physicians or third parties concerning the nature, severity, and effect of the 3 claimant’s condition. Thomas, 278 F.3d at 958-59. 4 1. Daily Activities 5 The ALJ determined that Plaintiff’s reported daily activities including caring 6 for herself and her pets, cleaning the house, gardening, cooking, going to her 7 grandchildren’s school functions, and going for short walks were inconsistent with 8 the alleged severity of Plaintiff’s symptoms. Tr. 32. 9 A claimant’s daily activities may support an adverse credibility finding if (1) 10 the claimant’s activities contradict her other testimony, or (2) the claimant “is able 11 to spend a substantial part of [her] day engaged in pursuits involving performance 12 of physical functions that are transferable to a work setting.” Orn v. Astrue, 495 13 F.3d 625, 639 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 14 1989)). “The ALJ must make ‘specific findings relating to [the daily] activities’ 15 and their transferability to conclude that a claimant’s daily activities warrant an 16 adverse credibility determination.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 17 681 (9th Cir. 2005)). A claimant need not be “utterly incapacitated” to be eligible 18 for benefits. Fair, 885 F.2d at 603. 19 The ALJ failed to demonstrate how these activities contradicted Plaintiff’s 20 other testimony or that she was able to spend a substantial part of her day engaged 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 22 1 in these activities and that they are transferable to a work setting. Therefore, this 2 reason fails to meet the specific, clear and convincing standard. 3 2. Limited Treatment 4 The ALJ discounted Plaintiff’s symptom testimony regarding the limiting 5 effects of headaches and knee pain by finding that she “required limited treatment” 6 for these conditions. Tr. 32. 7 In assessing a claimant's credibility, the ALJ may properly rely on 8 “‘unexplained or inadequately explained failure to seek treatment or to follow a 9 prescribed course of treatment.’” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 10 Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)); Fair, 11 885 F.2d at 603. However, disability benefits may not be denied because of the 12 claimant’s failure to seek treatment that she cannot obtain for lack of funds. 13 Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). 14 Plaintiff asserted that she was uninsured during parts of the relevant time 15 period and therefore could not seek regular medical treatment for headaches or 16 knee pain. ECF No. 13 at 12-13. Defendant concedes that “[t]he record does 17 suggest that [Plaintiff] discontinued treatment due to financial concerns.” ECF No. 18 15 at 17 (citing Tr. 595). As the ALJ may not properly consider failure to seek 19 treatment that Plaintiff cannot afford, Plaintiff’s limited treatment is not a specific, 20 clear and convincing reason to reject Plaintiff’s credibility. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 22 1 3. Inconsistent with Medical Record 2 In discrediting Plaintiff’s symptom claims, the ALJ found that the objective 3 medical evidence did not support the degree of physical or psychiatric limitation 4 alleged by Plaintiff. Tr. 31. Medical evidence is a relevant factor in determining 5 the severity of a claimant’s pain and its disabling effects. Rollins v. Massanari, 6 261 F.3d 853, 857 (9th Cir. 2001); 20 C.F.R. § 416.929(c)(2); see also S.S.R. 967 7p.3 However, it cannot serve as the sole reason for rejecting a claimant’s 8 credibility. Rollins, 261 F.3d at 857. 9 As discussed above, the two other reasons the ALJ provided for finding 10 Plaintiff less than fully credible failed to meet the specific, clear and convincing 11 standard. Therefore, under Rollins this reason cannot stand alone to support an 12 adverse credibility determination. Moreover, because the medical evidence was 13 not properly evaluated, on remand the ALJ should also reconsider the credibility 14 finding. 15 16 3 S.S.R. 96-7p was superseded by S.S.R. 16-3p effective March 16, 2016. The new 17 ruling also provides that the consistency of a claimant’s statements with objective 18 medical evidence and other evidence is a factor in evaluating a claimant’s 19 symptoms. S.S.R. 16-3p at *6. Nonetheless, S.S.R. 16-3p was not effective at the 20 time of the ALJ’s decision and therefore does not apply in this case. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 22 1 REMEDY 2 The decision whether to remand for further proceedings or reverse and 3 award benefits is within the discretion of the district court. McAllister v. Sullivan, 4 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 5 where “no useful purpose would be served by further administrative proceedings, 6 or where the record has been thoroughly developed,” Varney v. Secretary of Health 7 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 8 by remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 9 1280 (9th Cir. 1990); see also Garrison, 759 F.3d at 1021 (noting that a district 10 court may abuse its discretion not to remand for benefits when all of these 11 conditions are met). This policy is based on the “need to expedite disability 12 claims.” Varney, 859 F.2d at 1401. But where there are outstanding issues that 13 must be resolved before a determination can be made, and it is not clear from the 14 record that the ALJ would be required to find a claimant disabled if all the 15 evidence were properly evaluated, remand is appropriate. See Benecke v. 16 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 17 1179-80 (9th Cir. 2000). 18 In this case, it is not clear from the record that the ALJ would be required to 19 find Plaintiff disabled if all the evidence were properly evaluated. As discussed 20 supra, the ALJ failed to include all of Dr. Billings’ opined limitations, although the 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 22 1 ALJ purported to fully credit the opinion. Here, the ALJ also credited the opinions 2 of Dr. Bailey and Dr. Gentile, who opined that Plaintiff had no mental health 3 impairment limiting her ability to work. There appears to be a conflict in the 4 medical evidence such that further review by the ALJ is required. Further 5 proceedings are necessary for the ALJ to properly consider the medical opinions, 6 properly determine Plaintiff’s credibility regarding her symptom reporting, and 7 formulate a new RFC. 8 CONCLUSION 9 IT IS ORDERED: 10 1. Plaintiff’s motion for summary judgment (ECF No. 13) is GRANTED in 11 part, and the matter is REMANDED to the Commissioner for additional 12 proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 13 2. Defendant’s motion for summary judgment (ECF No. 15) is DENIED. 14 The District Court Executive is directed to file this Order, enter 15 JUDGMENT FOR THE PLAINTIFF, provide copies to counsel, and CLOSE 16 THE FILE. 17 18 19 DATED this 22nd day of June, 2017. s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 22
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