Uribe v. Saul, No. 1:2019cv03234 - Document 16 (E.D. Wash. 2020)

Court Description: ORDER GRANTING 10 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; denying 14 Defendant's Motion for Summary Judgment. Signed by Senior Judge Fred Van Sickle. (VR, Courtroom Deputy)

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Uribe v. Saul Doc. 16 Case 1:19-cv-03234-FVS ECF No. 16 filed 10/14/20 PageID.1808 Page 1 of 20 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Oct 14, 2020 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 EMILIO U., No: 1:19-CV-03234-FVS Plaintiff, 8 v. 9 10 ANDREW M. SAUL, Commissioner of the Social Security Administration, 11 Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 12 13 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 14 ECF Nos. 10, 14. This matter was submitted for consideration without oral 15 argument. Plaintiff is represented by attorney D. James Tree. Defendant is 16 represented by Special Assistant United States Attorney Sarah L. Martin. The 17 Court, having reviewed the administrative record and the parties’ briefing, is fully 18 informed. For the reasons discussed below, the Court GRANTS, in part, Plaintiff’s 19 Motion for Summary Judgment, ECF No. 11, DENIES Defendant’s Motion for 20 Summary Judgment, ECF No. 14, and REMANDS the case for additional 21 proceedings consistent with this Order. ORDER ~ 1 Dockets.Justia.com Case 1:19-cv-03234-FVS ECF No. 16 1 filed 10/14/20 PageID.1809 Page 2 of 20 JURISDICTION 2 Plaintiff Emilio U.1 filed an application for Supplemental Security Income 3 (SSI) on November 15, 2012, Tr. 85, alleging disability since March 3, 2011, Tr. 4 193. Benefits were denied initially, Tr. 119-27, and upon reconsideration, Tr. 131- 5 35. A hearing before Administrative Law Judge Kimberly Boyce (“ALJ”) was 6 conducted on November 12, 2014. Tr. 44-84. Plaintiff was represented by counsel 7 and testified at the hearing. Id. The ALJ also took the testimony of vocational 8 expert Kimberly Mullinax. Id. The ALJ denied benefits on November 28, 2014. 9 Tr. 20-34. The Appeals Council denied Plaintiff’s request for review on September 10 5, 2019. Tr. 1-6. Plaintiff requested review of the ALJ’s decision by this Court on 11 May 8, 2017. Tr. 942-44. This Court reversed the ALJ’s decision and remanded the 12 case for additional proceedings. Tr. 950-62. 13 While the case was pending before this Court, Plaintiff filed a new application 14 for SSI on June 7, 2016, Tr. 968, alleging an onset date of June 1, 2016, Tr. 1100. 15 This application was denied initially, Tr. 1012-20, and upon reconsideration, Tr. 16 1022-28. On April 20, 2019, Plaintiff filed an application for Child Disability 17 Insurance Benefits (CDIB), Tr. 1253, alleging an onset date of September 31, 2009, 18 19 20 21 1 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial, and, subsequently, Plaintiff’s first name only, throughout this decision. ORDER ~ 2 Case 1:19-cv-03234-FVS ECF No. 16 filed 10/14/20 PageID.1810 Page 3 of 20 1 Tr. 1115. The second SSI application and the CDIB application were consolidated 2 with the remanded SSI application. Tr. 966, 1253. The ALJ held a hearing on June 3 18, 2019, and took testimony form Plaintiff and vocational expert Joseph Moisan. 4 Tr. 890-906. The ALJ entered a partially favorable decision on July 30, 2019 5 finding that Plaintiff met the definition of disability as of the day the second SSI 6 application was filed, June 7, 2016. Tr. 852-68. The Appeals Council did not 7 assume jurisdiction over the decision within the prescribed period under 20 C.F.R. § 8 416.1484 making the ALJ’s July 30, 2019 decision the final decision of the 9 Commissioner. Plaintiff failed a Complaint in this Court on October 2, 2019. ECF 10 No. 1. The matter is now before this Court pursuant to 42 U.S.C. §§ 405(g), 11 1383(c)(3). 12 BACKGROUND 13 The facts of the case are set forth in the administrative hearing and transcripts, 14 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. Only the most 15 pertinent facts are summarized here. 16 In the initial application, Plaintiff alleged that he suffered from back pain, 17 depression, anxiety, panic attacks, nightmares, insomnia, and allergies that limited 18 his ability to work. Tr. 208. He turned 18 on the alleged onset date of the first SSI 19 application, March 3, 2011. Tr. 193. The highest grade Plaintiff completed was the 20 tenth grade, and he participated in special education classes. Tr. 209. At the time of 21 his initial application, Plaintiff stated that he had never worked. Tr. 208. ORDER ~ 3 Case 1:19-cv-03234-FVS 1 2 ECF No. 16 filed 10/14/20 PageID.1811 Page 4 of 20 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 5 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 6 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 7 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 8 citation omitted). Stated differently, substantial evidence equates to “more than a 9 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 10 In determining whether the standard has been satisfied, a reviewing court must 11 consider the entire record as a whole rather than searching for supporting evidence in 12 isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. “The court will uphold the ALJ's conclusion 15 when the evidence is susceptible to more than one rational interpretation.” 16 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Further, a district court 17 will not reverse an ALJ’s decision on account of an error that is harmless. Id. An 18 error is harmless where it is “inconsequential to the [ALJ’s] ultimate nondisability 19 determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 20 decision generally bears the burden of establishing that it was harmed. Shinseki v. 21 Sanders, 556 U.S. 396, 409-10 (2009). ORDER ~ 4 Case 1:19-cv-03234-FVS 1 ECF No. 16 filed 10/14/20 PageID.1812 Page 5 of 20 FIVE-STEP EVALUATION PROCESS 2 A claimant must satisfy two conditions to be considered “disabled” within the 3 meaning of the Social Security Act. First, the claimant must be “unable to engage in 4 any substantial gainful activity by reason of any medically determinable physical or 5 mental impairment which can be expected to result in death or which has lasted or 6 can be expected to last for a continuous period of not less than twelve months.” 42 7 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be “of such severity 8 that he is not only unable to do his previous work[,] but cannot, considering his age, 9 education, and work experience, engage in any other kind of substantial gainful 10 11 work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). The Commissioner has established a five-step sequential analysis to 12 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 13 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 14 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 15 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 16 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 17 404.1520(b), 416.920(b). 18 If the claimant is not engaged in substantial gainful activity, the analysis 19 proceeds to step two. At this step, the Commissioner considers the severity of the 20 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 21 claimant suffers from “any impairment or combination of impairments which ORDER ~ 5 Case 1:19-cv-03234-FVS ECF No. 16 filed 10/14/20 PageID.1813 Page 6 of 20 1 significantly limits [his or her] physical or mental ability to do basic work 2 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 3 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 4 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 5 §§ 404.1520(c), 416.920(c). 6 At step three, the Commissioner compares the claimant’s impairment to 7 severe impairments recognized by the Commissioner to be so severe as to preclude a 8 person from engaging in substantial gainful activity. 20 C.F.R. §§ 9 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more severe 10 than one of the enumerated impairments, the Commissioner must find the claimant 11 disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 12 If the severity of the claimant’s impairment does not meet or exceed the 13 severity of the enumerated impairments, the Commissioner must pause to assess the 14 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 15 defined generally as the claimant’s ability to perform physical and mental work 16 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 17 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 18 analysis. 19 At step four, the Commissioner considers whether, in view of the claimant’s 20 RFC, the claimant is capable of performing work that he or she has performed in the 21 past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the ORDER ~ 6 Case 1:19-cv-03234-FVS ECF No. 16 filed 10/14/20 PageID.1814 Page 7 of 20 1 claimant is capable of performing past relevant work, the Commissioner must find 2 that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the 3 claimant is incapable of performing such work, the analysis proceeds to step five. 4 At step five, the Commissioner considers whether, in view of the claimant’s 5 RFC, the claimant is capable of performing other work in the national economy. 20 6 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, the 7 Commissioner must also consider vocational factors such as the claimant’s age, 8 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 9 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 10 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 11 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 12 work, analysis concludes with a finding that the claimant is disabled and is therefore 13 entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 14 The claimant bears the burden of proof at steps one through four. Tackett v. 15 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the 16 burden shifts to the Commissioner to establish that (1) the claimant is capable of 17 performing other work; and (2) such work “exists in significant numbers in the 18 national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 386, 19 389 (9th Cir. 2012). 20 21 THE ALJ’S FINDINGS At step one, the ALJ found that Plaintiff has not engaged in substantial gainful ORDER ~ 7 Case 1:19-cv-03234-FVS ECF No. 16 filed 10/14/20 PageID.1815 Page 8 of 20 1 activity since December 31, 2009, the onset date associated with the CDIB claim. 2 Tr. 854. At step two, the ALJ found that Plaintiff has the following severe 3 impairments: degenerative disc disease; scoliosis; bilateral hip sciatica; asthma; 4 gastroesophageal reflux disease (GERD); obesity; affective disorder; intellectual 5 disorder; anxiety disorder; posttraumatic stress disorder (PTSD). Tr. 854. At step 6 three, the ALJ found that Plaintiff does not have an impairment or combination of 7 impairments that meets or medically equals the severity of a listed impairment. Tr. 8 855. The ALJ then found that prior to June 7, 2016, Plaintiff had the RFC to 9 perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b) except he 10 11 12 13 14 15 16 17 18 19 20 21 had the following limitations: he could stand and walk for about six hours and can sit for more than six hours with normal breaks. He can lift, carry, push, and pull within light exertional limits. He could occasionally climb, balance, stoop, kneel, crouch, and crawl. He could perform work in which concentrated exposure to extreme cold, vibration, fumes, odors, dusts, gasses, poor ventilation, and/or hazards is not present. In order to meet ordinary and reasonable employer expectations regarding attendance, production, and workplace behavior, he could understand, remember, and carry out unskilled, routine, and repetitive work, and could cope with occasional work setting change and occasional interaction with supervisors. He could work in proximity to coworkers, but not in a team or cooperative effort. He could perform work that did not require interaction with the general public as an essential element of the job, but occasional incidental contact with the general public was not precluded. Tr. 856-57. The ALJ then found that beginning June 7, 2016, Plaintiff has the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.5167(a), 416.967(a) with the ORDER ~ 8 Case 1:19-cv-03234-FVS 1 2 3 4 5 6 7 8 9 10 11 ECF No. 16 filed 10/14/20 PageID.1816 Page 9 of 20 following limitations: the claimant can never climb ladders, ropes, or scaffolds, work at unprotected heights or in proximity to hazards such as heavy machinery with dangerous moving parts. He can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. He can perform work in which concentrated exposure to extreme cold, heat, wetness, pulmonary irritants, or vibration is not present. The claimant can understand, remember, and carry out simple, routine tasks and follow short, simple instructions. He can perform work that requires little or no judgment and can perform simple duties that can be learned on the job in a short period. He can cope with occasional work setting change and occasional, routine interaction with supervisors. The claimant can work in proximity to coworkers, but not in a team or cooperative effort. He can perform work that does not require interaction with the general public as an essential element of the job, but occasional incidental contact with the teneral public is not precluded. Tr. 864-65. At step four, the ALJ found that Plaintiff has no past relevant work. Tr. 866. 12 At step five, the ALJ found that prior to June 7, 2016, there were jobs that existed in 13 significant numbers in the national economy that the claimant could have performed, 14 including production assembler, housekeeping cleaner, and packing line worker. Tr. 15 867. Based on this finding, the ALJ found that Plaintiff was not disabled, as defined 16 in the Social Security Act, prior to June 7, 2016. Tr. 866-67. The ALJ found that 17 beginning June 7, 2016, considering Plaintiff’s age, education, work experience, and 18 RFC, there are no jobs that exist in significant numbers in the national economy that 19 Plaintiff can perform. Tr. 867. The ALJ concluded that Plaintiff was therefore 20 under a disability, as defined in the Social Security Act, beginning June 7, 2016 21 through the date of the decision. Tr. 867. ORDER ~ 9 Case 1:19-cv-03234-FVS ECF No. 16 1 filed 10/14/20 PageID.1817 Page 10 of 20 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 him SSI under Title XVI of the Social Security Act prior to June 7, 2016 and CDIB 4 under Title II of the Social Security Act. ECF No. 10. Plaintiff raises the following 5 issues for this Court’s review: 6 1. Whether the ALJ erred in finding June 7, 2016 as the established onset date; 7 2. Whether the ALJ properly considered the medical opinions in the record; and 8 3. Whether the ALJ properly consideabout new or worsening signs, symptoms, and laboratory findings. 3 8 filed 10/14/20 forth what is considered when determining the EOD: 2 7 ECF No. 16 Id. Here, the ALJ erred. The June 7, 2016 EOD does not align with any specific objective evidence to support the change in the RFC. Instead, it appears that the 10 ALJ simply made a procedural choice based on Plaintiff’s second SSI application. 11 At the time Plaintiff filed his second SSI claim, there was a prior final determination 12 from the Commissioner that, while it was pending before this Court, precluded 13 Plaintiff from alleging a period prior the ALJ’s unfavorable decision. See Miller v. 14 Heckler, 770 F.2d 845, 848 (9th Cir. 1985) (res judicata applies to final 15 determinations by the Commissioner). In most SSI applications, the protective filing 16 date is the earliest EOD. See 20 C.F.R. § 416.202 (filing an application for benefits 17 is one of seven requirements for being eligible for benefits); POMS DI 25501.370. 18 However, since the two SSI applications and the CDIB application were 19 consolidated, the ALJ was not limited to the protective filing date of the second SSI 20 application as the EOD. 21 The ALJ stated that starting June 7, 2016, “the claimant had unstable mental ORDER ~ 11 Case 1:19-cv-03234-FVS 1 2 3 4 5 6 7 ECF No. 16 filed 10/14/20 PageID.1819 Page 12 of 20 functioning,” and cited the following evidence: in a therapy session on June 22, 2016, the claimant described anxiety attacks, feeling shaky, hot and cold, seats, nauseated, and distorted thinking symptoms that had last for the last two weeks (64F37). Despite compliance with regular therapy and medication, he still experienced high anxiety symptoms (see e.g. 72F2, 22, 25). He also expressed overwhelm and stress about medical appointments (72F2). He lacked eye contact throughout sessions, and he exhibited anxiety symptoms (64F45; 72F15, 20; 77F10). His judgment and insight were observed to be fair to poor (64F47; 66F5; 77F15, 28). He also endorsed paranoid feelings when going outside and reported feeling the need to take a gun to protect himself (66F15). He reported that he had not been interacting with others due to high anxiety (72F2). 8 9 Tr. 865. However, the record shows that Plaintiff experienced these symptoms prior 10 to June 7, 2016. On November 16, 2012, Mary Pine, PAC observed that Plaintiff 11 had no eye contact and had a flat affect. Tr. 428. Plaintiff stated that he was getting 12 very anxious and refused to discuss his personal issues at that time. Id. On April 11, 13 2013, Plaintiff reported that his anxiety caused him to lose his appetite, causing 14 difficulty sleeping. Tr. 549. On June 14, 2013, Plaintiff described an increase in 15 anxiety as “every day his heart starts racing and he gets shortness of breath and he is 16 not able to leave home.” Tr. 565. On September 25, 2013, Plaintiff reported that he 17 had “been feeling sick, having anxiety attacks and sad” for the last three weeks, and 18 it was observed that Plaintiff was anxious and his palms were sweaty. Tr. 530. On 19 June 11, 2014, Plaintiff reported significant anxiety affecting his sleep and an 20 inability to leave his home without his mother. Tr. 782. On August 24, 2014, 21 Plaintiff reported anxiety causing him to feel nauseous. Tr. 791. In December of ORDER ~ 12 Case 1:19-cv-03234-FVS ECF No. 16 filed 10/14/20 PageID.1820 Page 13 of 20 1 2014, Plaintiff reported that he was still not leaving the house except for his 2 appointments. Tr. 1263. On February 17, 2015, Plaintiff had a depressed affect and 3 no eye contact at times. Tr. 1385. In August of 2015, Plaintiff reported three or four 4 anxiety attacks a day. Tr. 1300. On May 13, 2016, “Emilio has a poor eye contact. 5 He continue to gaze down when talking. He reported that he had a difficult time 6 getting out of the house today.” Tr. 1376. This demonstrates that the symptoms the 7 ALJ cited were not only manifest after June 7, 2016, but existed in the record well 8 prior to the second application for SSI benefits. 9 The ALJ made a similar finding in regards to Plaintiff’s physical impairments 10 and the June 7, 2016 EOD: “Regarding the claimant’s physical symptoms, treatment 11 records reflect his back pain had worsened and he was experiencing left side sciatica 12 (35F4; 75F24). Contributing to his physical symptoms, the claimant has maintained 13 an elevated body mass index and he continues to experience problems with GERD 14 (see e.g. 75F24).” Tr. 865. However, the left sided sciatica, obesity, and GERD 15 were present prior to the June 7, 2016 EOD. See Tr. 838, 1385 (showing bilateral 16 sciatica was present as early as February and April of 2015); Tr. 316 (in July of 17 2011, Plaintiff weighed 262 pounds and had a BMI of 32.92); Tr. 318 (in July of 18 2011, an EGD confirmed gastritis); Tr. 1385 (Plaintiff’s BMI had reached 42 by 19 February of 2015). Therefore, the ALJ’s EOD of June 7, 2016 is not supported by 20 substantial evidence, and is merely a decision made to align with Plaintiff’s second 21 application for SSI. ORDER ~ 13 Case 1:19-cv-03234-FVS 1 ECF No. 16 filed 10/14/20 PageID.1821 Page 14 of 20 “At the hearing level of our administrative review process, if the ALJ needs to 2 infer the date that the claimant first met the statutory definition of disability, he or 3 she may call on the services of an ME [medical expert] by soliciting testimony or 4 requesting responses to written interrogatories.” S.S.R. 18-1p. Therefore, this case 5 is remanded for the ALJ to solicit the testimony of a physiological expert and a 6 medical expert regarding the appropriate date in which Plaintiff meet the statutory 7 definition of disability prior to June 7, 2016. 8 2. 9 Medical Source Opinions Plaintiff challenges the weight the ALJ assigned to the medical opinions of 10 Roland Dougherty, Ph.D., Jorge Torres-Saenz, Psy.D., George Petzinger, M.D, 11 Gricelda Chacon, MSW, Mary Pine, PAC, Irma Clark, PA, and Irma Mejia, ARNP. 12 ECF No. 10 at 10-18. 13 If a treating or examining physician's opinion is uncontradicted, the ALJ may 14 reject it only by offering “clear and convincing reasons that are supported by 15 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 16 Conversely, “[i]f a treating or examining doctor's opinion is contradicted by another 17 doctor's opinion, an ALJ may only reject it by providing specific and legitimate 18 reasons that are supported by substantial evidence.” Id. (citing Lester v. Chater, 81 19 F.3d 821, 830-31 (9th Cir. 1995)). Social Security Ruling (S.S.R.) 96-8p states that 20 the RFC assessment “must always consider and address medical source opinions. If 21 the RFC assessment conflicts with an opinion from a medical source, the adjudicator ORDER ~ 14 Case 1:19-cv-03234-FVS 1 ECF No. 16 filed 10/14/20 PageID.1822 Page 15 of 20 must explain why the opinion was not adopted.” 2 A. 3 On February 27, 2013, Dr. Dougherty completed a psychological consultative Roland Dougherty, Ph.D. 4 evaluation of Plaintiff. Tr. 401-19. He diagnosed Plaintiff with a cognitive disorder, 5 generalized anxiety disorder with panic attacks, PTSD, dysthymia, rule out major 6 depressive disorder, rule out conversion disorder, and rule out malingering/symptom 7 exaggeration/poor effort. Tr. 408. Dr. Dougherty provided a medical source 8 statement that Plaintiff was capable of performing at least simple and repetitive tasks 9 with some detailed and more complex tasks, he was able to accept instructions from 10 11 12 13 supervisors, and he would have difficulty with attendance, persistence, and stress: I think he would have significant difficulty maintaining regular attendance in the workplace and completing a normal workday/workweek without interruptions from his psychiatric condition. For the same reasons he would have difficulty dealing with the stress encountered in the workplace. 14 Tr. 409. The ALJ gave the opinion some weight, stating that Dr. Dougherty’s 15 opinion that Plaintiff was capable of simple and repetitive tasks was supported and 16 found that the record supported greater social functioning limitations than opined by 17 Dr. Dougherty. Tr. 862-63. However, the ALJ never discussed the limitations to 18 maintaining regular attendance and dealing with workplace stress. Id. And, the ALJ 19 failed to account for these opined limitations in the RFC determination. Tr. 856-57. 20 The RFC assessment “must always consider and address medical source 21 opinions. If the RFC assessment conflicts with an opinion from a medical source, ORDER ~ 15 Case 1:19-cv-03234-FVS ECF No. 16 filed 10/14/20 PageID.1823 Page 16 of 20 1 the adjudicator must explain why the opinion was not adopted.” S.S.R. 96-8p. 2 Therefore, the ALJ erred by failing to state why she failed to adopt these portions of 3 Dr. Dougherty’s opinion. The case is remanded for the ALJ to properly address Dr. 4 Dougherty’s opinion. 5 B. Remaining Psychological Opinions 6 Plaintiff also challenges the opinions of Dr. Torres-Saenz, Dr. Pizinger, and 7 Ms. Chacon. ECF No. 10 at 11-17. All three of these providers opined that Plaintiff 8 would miss work and appointments due to mental health symptoms similar to Dr. 9 Dougherty’ opinion. Tr. 521, 724, 1309-10. Since the case is being remanded for 10 the ALJ to address Dr. Dougherty’s opinion addressing Plaintiff’s ability to sustain 11 work activity and attendance, the ALJ will also readdress the full opinions of Dr. 12 Torres-Saenz, Dr. Pizinger, and Ms. Chacon upon remand. 13 C. 14 All three of these opinions limited Plaintiff to sedentary work or less and 15 16 Mary Pine, PAC, Irma Clark, PA, and Irma Mejia, ARNP stated that he could not sustain work activity. Tr. 421-22, 453-54, 1313-14. As physician assistants and a nurse practitioner, these providers do not qualify 17 as acceptable medical sources. 20 C.F.R. §§ 404.1502, 416.902. Instead, they 18 qualifies as other sources. Id. However, testimony from other sources are 19 “competent evidence” as to “how an impairment affects [a claimant’s] ability to 20 work.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050 (9th Cir. 2006); see also 21 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). An ALJ must give ORDER ~ 16 Case 1:19-cv-03234-FVS ECF No. 16 filed 10/14/20 PageID.1824 Page 17 of 20 1 “germane” reasons to discount evidence from these “other sources.” Dodrill, 12 F.3d 2 at 919. 3 The ALJ rejected the opinion for three reasons: (1) the treating providers are 4 not acceptable medical sources; (2) the opinions are inconsistent with the medical 5 evidence; and (3) the opinions are inconsistent with Plaintiff’s self-report. Tr. 861- 6 62. The case has been remanded for the ALJ to call a psychological and a medical 7 expert to address the medical evidence as a whole and assess an accurate EOD. 8 These opinions are from the period the ALJ is to readdress in assessing an accurate 9 EOD. Therefore, the ALJ will address these opinions upon remand. 10 11 12 13 3. Plaintiff’s Symptom Statements Plaintiff challenges the ALJ’s treatment of his symptom statements. ECF No. 10 at 18-21. It is generally the province of the ALJ to make determinations regarding the 14 reliability of Plaintiff’s symptom statements, Andrews v. Shalala, 53 F.3d 1035, 15 1039 (9th Cir. 1995), but the ALJ’s findings must be supported by specific cogent 16 reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 17 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 18 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 19 1273, 1281 (9th Cir. 1996); Lester, 81 F.3d at 834. 20 21 The ALJ found Plaintiff’s “statements concerning the intensity, persistence, and limiting effects of these symptoms are not fully supported prior to June 7, 2016, ORDER ~ 17 Case 1:19-cv-03234-FVS ECF No. 16 filed 10/14/20 PageID.1825 Page 18 of 20 1 for the reasons explained in this decision.” Tr. 858. The evaluation of a claimant’s 2 symptom statements and their resulting limitations relies, in part, on the assessment 3 of the medical evidence. See 20 C.F.R. §§ 404.1529(c), 416.929(c); S.S.R. 16-3p. 4 Therefore, in light of the case being remanded for the ALJ to readdress the medical 5 source opinions in the file, a new assessment of Plaintiff’s subjective symptom 6 statements prior to June 7, 2016 will be necessary. 7 CONCLUSION 8 The decision whether to remand for further proceedings or reverse and 9 award benefits is within the discretion of the district court. McAllister v. Sullivan, 10 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 11 where “no useful purpose would be served by further administrative proceedings, or 12 where the record has been thoroughly developed,” Varney v. Sec'y of Health & 13 Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by 14 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 15 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 16 (noting that a district court may abuse its discretion not to remand for benefits when 17 all of these conditions are met). This policy is based on the “need to expedite 18 disability claims.” Varney, 859 F.2d at 1401. But where there are outstanding 19 issues that must be resolved before a determination can be made, and it is not clear 20 from the record that the ALJ would be required to find a claimant disabled if all the 21 evidence were properly evaluated, remand is appropriate. See Benecke v. Barnhart, ORDER ~ 18 Case 1:19-cv-03234-FVS ECF No. 16 filed 10/14/20 PageID.1826 Page 19 of 20 1 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th 2 Cir. 2000). 3 The Court finds that further administrative proceedings are appropriate. See 4 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) 5 (remand for benefits is not appropriate when further administrative proceedings 6 would serve a useful purpose). Here, testimony from a medical and a psychological 7 expert is required to determine the appropriate onset date. Therefore, the Court 8 remands this case for further proceedings consistent with this Order. 9 On remand, the ALJ shall call a medical expert and a psychological expert to 10 determine the appropriate onset date of disability. In doing so, the ALJ will 11 readdress the medical opinions in the record and readdress Plaintiff’s symptom 12 statement. In addition, the ALJ should call a vocational expert to address any step 13 four or five determinations at remand proceedings. 14 The ALJ’s determination on remand is limited to the period prior to June 7, 15 2016. Nothing in this order instructs the ALJ to assess Plaintiff’s eligibility after 16 June 7, 2016. Therefore, Plaintiff’s eligibility for benefits starting June 7, 2016 and 17 forward shall remand undisturbed. This remand is to determine if Plaintiff’s 18 disability onset date can be established prior to June 7, 2016. 19 ACCORDINGLY, IT IS HEREBY ORDERED: 20 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is GRANTED, in 21 part, and the matter is remanded for further proceedings consistent with ORDER ~ 19 Case 1:19-cv-03234-FVS 1 ECF No. 16 filed 10/14/20 PageID.1827 Page 20 of 20 this Order. 2 2. Defendant’s Motion for Summary Judgment, ECF No. 14 is DENIED. 3 The District Court Executive is hereby directed to enter this Order and provide 4 5 copies to counsel, enter judgment in favor of the Plaintiff, and CLOSE the file. DATED October 14, 2020. 6 s/Fred Van Sickle Fred Van Sickle Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER ~ 20

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