Baker v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: July 1, 2022
• Docket: 3:21-cv-08084
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Nicholas Robert Baker, No. CV-21-08084-PCT-SPL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14

15 At issue is the final decision of the Commissioner of Social Security 16 (“Commissioner”) denying Plaintiff Nicholas Robert Baker’s application for Disability 17 Insurance Benefits under the Social Security Act (“Act”). Before the Court are Plaintiff’s 18 Opening Brief (Doc. 17), Defendant’s Response (Doc. 20), Plaintiff’s Reply (Doc. 21), and 19 the administrative record (Doc. 13, “R.”). Upon review, the Court reverses and remands 20 the Administrative Law Judge’s decision (R. at 10) for further proceedings. 21 I. BACKGROUND 22 Plaintiff filed a Title II application for Social Security Disability Insurance and a 23 Title XVI application for Supplemental Security Income on January 18, 2019 and February 24 13, 2020, respectively, alleging a period of disability beginning on October 1, 2017. (R. at 25 13). Plaintiff’s claims were initially denied on June 14, 2019, and again upon 26 reconsideration on September 25, 2019. (Id.). Plaintiff subsequently requested a hearing, 27 held on October 14, 2020. (Id.). On November 5, 2020, the Administrative Law Judge 28 (“ALJ”) issued a decision finding the Plaintiff was not disabled. (R. at 10–26). The Appeals 1 Council denied Plaintiff’s request for review on February 23, 2021, adopting the ALJ’s 2 decision as the agency’s final decision. (R. at 1–6). Following this unfavorable decision, 3 Plaintiff filed the present appeal. 4 After considering the medical evidence and opinions, the ALJ determined that 5 Plaintiff had not engaged in substantial gainful activity since October 1, 2017, and that 6 Plaintiff had the following severe impairments: multiple sclerosis (“MS”) and mental 7 health impairments diagnosed as depression and anxiety. (R. at 16). However, the ALJ 8 determined that Plaintiff did not have an impairment that met or equaled an impairment 9 listed in 20 C.F.R. § 404, Subpart P, Appendix 1. (R. at 17). Specifically, the ALJ 10 determined that Plaintiff did not meet listings 11.09, 12.04, or 12.06. (Id.). 11 Ultimately, the ALJ found that Plaintiff possessed the residual functional capacity 12 to perform a limited range of light exertional work as defined in 20 C.F.R. § 404.1567(b). 13 (R. at 19). The vocational expert testified that Plaintiff would be able to perform the 14 requirements of occupations such as office helper, addresser, or document scanner; 15 therefore, the ALJ found the Plaintiff was not disabled. (R. at 25). 16 II. LEGAL STANDARDS 17 A person is considered “disabled” for the purpose of receiving social security 18 benefits if they are unable to “engage in any substantial gainful activity by reason of any 19 medically determinable physical or mental impairment which can be expected to result in 20 death or which has lasted or can be expected to last for a continuous period of not less than 21 12 months.” 42 U.S.C. § 423(d)(1)(A). In determining whether to reverse an ALJ’s 22 decision, this Court reviews only those issues raised by the party challenging the decision. 23 See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set aside the 24 Commissioner’s disability determination only if it is not supported by substantial evidence 25 or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial 26 evidence is relevant evidence that a reasonable person might accept as adequate to support 27 a conclusion. Id. To determine whether substantial evidence supports a decision, the Court 28 must consider the record as a whole and may not affirm simply by isolating a “specific 1 quantum of supporting evidence.” Id. (citation omitted). Generally, “[w]here the evidence 2 is susceptible to more than one rational interpretation, one of which supports the ALJ’s 3 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 4 (9th Cir. 2002). 5 To determine whether a claimant is disabled for purposes of the Act, the ALJ 6 follows a five-step process. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 7 20 C.F.R. § 404.1520(a)). The claimant bears the burden of proof on the first four steps, 8 and the burden shifts to the Commissioner at step five. Id. At the first step, the ALJ 9 determines whether the claimant is presently engaging in substantial gainful activity. 10 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 11 medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). Third, the 12 ALJ determines whether the claimant’s impairment meets or equals an impairment listed 13 in 20 C.F.R. § 404, Subpart P, Appendix 1. § 404.1520(a)(4)(iii). If so, the claimant is 14 automatically found to be disabled. Id. If not, the ALJ determines the claimant’s residual 15 functional capacity (“RFC”). §§ 404.1520(e), 416.920(e). At step four, the ALJ determines 16 whether the claimant’s RFC precludes them from performing past relevant work. 17 § 404.1520(a)(4)(iv). If so, the ALJ proceeds to the fifth and final step, and determines 18 whether the claimant can perform any other work in the national economy based on the 19 claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If not, the 20 claimant is disabled. Id. 21 III. ANALYSIS 22 Plaintiff raises two arguments for the Court’s consideration: 1) the ALJ erred in 23 rejecting the assessments of Baker’s treating primary care physician, Donna Peace, M.D., 24 and state agency psychological examiner, Cynthia Ruzich, Psy.D.; and 2) the ALJ erred in 25 rejecting Baker’s symptom testimony. (Doc. 17 at 13, 19). Plaintiff requests that the Court 26 remand the case for a computation of benefits under the credit-as-true rule. (Id. at 24). 27 Defendant asks the Court to affirm or, if the Court finds error, to remand for further 28 administrative proceedings. (Doc. 20 at 14). 1 A. The ALJ erred in rejecting the opinions of Dr. Peace and Dr. Ruzich. 2 Plaintiff argues that the ALJ did not provide sufficient rationale “under standards 3 that require articulation and explanation supported by substantial evidence” to reject the 4 opinions of Baker’s treating primary care doctor, Dr. Peace, and the agency’s examining 5 psychologist, Dr. Ruzich. (Doc. 21 at 4.) Since the Ninth Circuit’s opinion in Woods v. 6 Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022), was issued in the period between when 7 Plaintiff’s Opening Brief (Doc. 17) and Reply (Doc. 21) were submitted, the Reply 8 concedes that the Ninth Circuit has abrogated the “specific and legitimate” standard 9 previously used to evaluate an ALJ’s rejection of medical opinion evidence, and Plaintiff 10 applies the standard of “an explanation supported by substantial evidence.” (Doc. 21 at 5). 11 Plaintiff contends that the ALJ failed to adequately explain how she considered the 12 supportability and consistency factors when weighing the persuasiveness of Dr. Peace’s 13 and Dr. Ruzich’s assessments. (Doc. 17 at 13, Doc. 21 at 6–7). Defendant contends that 14 the ALJ properly addressed and evaluated the medical opinions according to the 2017 15 revised Social Security Administration (“SSA”) regulations in 20 C.F.R. § 404.1520c. 16 (Doc. 20 at 5). 17 1. Applicable Standard 18 For disability benefits claims filed prior to March 27, 2017, the Ninth Circuit 19 previously recognized “a hierarchy among the sources of medical opinions.” Singer v. 20 Comm’r of Soc. Sec. Admin., No. CV-18-01767-PHX-JJT, 2019 WL 9089997, at *2 (D. 21 Ariz. Oct. 11, 2019) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)). 22 SSA regulations classified medical opinion sources into three types: 1) treating physicians 23 (who treat a claimant), 2) examining physicians (who examine but do not treat a claimant), 24 and 3) non-examining physicians (who do not examine or treat a claimant). Lester v. 25 Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ was instructed to give more weight to 26 treating medical sources than non-examining sources due to a treating physician’s 27 heightened familiarity with a claimant’s condition. 20 C.F.R. § 404.1527(a)(2). If the ALJ 28 declined to give controlling weight to a treating physician’s opinion, the ALJ had to provide 1 “specific and legitimate reasons supported by substantial evidence” for rejecting that 2 source’s opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). However, in 3 March of 2017, the SSA “amended their regulations to abrogate the treating physician rule, 4 among other changes.” Alonzo v. Comm’r of Soc. Sec. Admin., No. CV-18-08317-PCT- 5 JZB, 2020 WL 1000024, at *3 (D. Ariz. Mar. 2, 2020) (citation omitted). 6 For disability benefits claims filed on or after March 27, 2017, including the 7 application in the present case, new SSA regulations instruct an ALJ not to “defer or give 8 any specific evidentiary weight, including controlling weight, to any medical opinion(s) or 9 prior administrative medical finding(s), including those from [a claimant’s] medical 10 sources.” 20 C.F.R. § 404.1520c. Instead, an ALJ should determine the persuasiveness of 11 each medical opinion using the following factors: 1) supportability, 2) consistency, 3) 12 relationship with the claimant, 4) specialization, and 5) any other relevant factors. Id. The 13 SSA has explained that supportability and consistency are the most important factors in 14 evaluating an opinion’s persuasiveness, and the ALJ must articulate how she considered 15 both factors. Id.; Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 16 Fed. Reg. 5853 (Jan. 18, 2017) (codified at 20 C.F.R. § 404).1 17 Before the decision in Woods, it was unclear whether the SSA’s new regulations 18 abrogated the Ninth Circuit’s standard requiring an ALJ to provide “specific and 19 legitimate” reasons for rejecting an examining doctor’s opinion. The Woods Court 20 specifically overturned that standard in favor of the simpler requirement that “an ALJ’s 21 decision, including the decision to discredit any medical opinion, must simply be supported 22 23 1 The revised regulations specifically define the “supportability” and “consistency” factors as follows: 24 “(1) Supportability. The more relevant the objective medical evidence and 25 supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical 26 opinions or prior administrative medical finding(s) will be. 27 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources 28 in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c 1 by substantial evidence.” 32 F.4th at 787. 2 2. Application to the Medical Source Opinions 3 An ALJ “may discredit treating physicians’ opinions that are conclusory, brief, and 4 unsupported by the record as a whole.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 5 1190, 1195 (9th Cir. 2004). However, they “cannot reject an examining or treating doctor’s 6 opinion as unsupported or inconsistent without providing an explanation supported by 7 substantial evidence.” Woods, 32 F.4th at 792. Under the revised articulation requirements, 8 an ALJ must “explain how [they] considered the supportability and consistency factors for 9 a medical source’s medical opinions” when determining how persuasive they find that 10 source. 20 C.F.R. § 404.1520c(b)(2). 11 i. Dr. Peace 12 Plaintiff argues that here, the ALJ improperly discounted the assessment of 13 treatment provider Dr. Peace as “minimally persuasive” because the ALJ failed to articulate 14 her reasoning behind that determination. (Doc. 17 at 14). Furthermore, Plaintiff contends 15 that this error was materially harmful, because if held as true, “the limitations assessed by 16 Dr. Peace would preclude all work” (Doc. 21 at 9) based on the testimony of the vocational 17 expert that “someone who misses two days per month would not be able to maintain 18 competitive work” (R. at 53). Plaintiff takes issue with each of the three main statements 19 that the ALJ provided as reasoning for her determination that Dr. Peace’s assessment was 20 minimally persuasive. 21 First, the ALJ characterized Dr. Peace’s assessments as “extreme opinions” which 22 were “generally without substantial support, which obviously renders this opinion less 23 persuasive.” (R. at 23). The only examples given by the ALJ as “extreme opinions” were 24 Dr. Peace’s determinations that that the Plaintiff “would be off task; would suffer from 25 ‘mental fatigue;’ and would miss 6+ workdays a month.” Id. However, the ALJ offered no 26 explanation as to why she found these opinions inconsistent with or unsupported by the 27 rest of the medical record. The ALJ cited no record evidence suggesting that Dr. Peace’s 28 own medical records, other medical assessments, or the Plaintiff’s own activities contradict 1 Dr. Peace’s opinions, and therefore failed to articulate how these statements were 2 inconsistent with or unsupported by the record. Without any such citations, and without 3 any meaningful explanation of the ALJ’s reasoning, “there is simply no way for the Court 4 to assess the legitimacy of the ALJ’s conclusions.” Oropilla v. Comm’r of Soc. Sec. Admin., 5 No. CV-20-01528-PHX-MTL, 2022 WL 885009, at *3 (D. Ariz. Mar. 25, 2022). 6 The ALJ then stated that “the course of treatment pursued by [Dr. Peace] has not 7 been consistent with what one would expect if [they] truly experienced these extreme 8 limitations.” (R. at 23). The ALJ made no reference to what course of treatment, exactly, 9 she is taking issue with, nor which precise limitations she is referring to, nor does she make 10 any direct comparisons between Dr. Peace’s findings and those of the other medical 11 consultants. The record indicates that Dr. Peace had regular appointments with Plaintiff 12 beginning in February 2018 (Id. at 739) through at least June of 2020 (Id. at 1040), and she 13 documented Plaintiff’s frequent symptoms of MS, anxiety, and depression (Doc. 17 at 7– 14 8). As Dr. Peace’s medical notes indicate, she encouraged Plaintiff to continue seeing his 15 neurologist in Phoenix for MS treatments,2 encouraged him to continue medication and 16 treatment for his anxiety and depression with Southwest Behavioral Health,3 and 17 prescribed him certain anxiety and depression medications.4 Furthermore, the Ninth Circuit 18 has stated that “the failure of a treating physician to recommend a more aggressive course 19 of treatment, absent more, is not a legitimate reason to discount the physician’s subsequent 20 medical opinion about the extent of disability.” Trevizo v. Berryhill, 871 F.3d 664, 677 21 (9th Cir. 2017). It was therefore unreasonable for the ALJ to discredit Dr. Peace’s medical 22 opinion based on the ALJ’s disagreement with her recommended course of treatment, 23 especially given that “an ALJ lacks both the authority and expertise to substitute her 24 25 2 See, e.g., R. at 1048 (“continue care with neuro/MS”), 1054 (“some of [symptoms] may be due to MS and this would be best addressed with specialist, encouraged to contact 26 Dr…for appt”), 1065 (“continue with MS neurology and [T]ysabri infusions”). 27 3 E.g., R. at 1084 (“has counselor at SWBH”), 1097 (“expect he will continue care at SWBH, can give him support for his anxiety and mood issues, and agoraphobia”). 28 4 E.g., R. at 1081 (“I am happy to refill citalopram and alprazolam as needed.”). 1 judgment for that of a physician.” Oropilla, 2022 WL 885009, at *5. 2 Finally, the ALJ states that Dr. Peace’s opinions were “quite conclusory.” (R. at 23). 3 It is worth noting that the exhibit to which the ALJ cites is a standard “check-the-box” style 4 form. (R. at 569–70). The Ninth Circuit has noted that “there is no authority that a ‘check- 5 the-box’ form is any less reliable than any other type of form; indeed, agency physicians 6 routinely use these types of forms to assess the intensity, persistence, or limiting effects of 7 impairments.” Trevizo, 871 F.3d at 677. Although a “check-the-box” form provides little 8 opportunity for a physician to explain their medical opinions, which can affect the weight 9 an ALJ accords those opinions, “check-box assessments that are substantiated by a 10 physician’s treatment records may be entitled to consideration that an otherwise 11 unexplained opinion would not receive.” Maske v. Comm’r of Soc. Sec. Admin., No. CV- 12 18-04891-PHX-DWL, 2020 WL 813768, at *4 (D. Ariz. Feb. 19, 2020). Although Dr. 13 Peace’s statements were limited by the “check-the-box” form, the ALJ cannot categorically 14 discount those statements if they were otherwise substantiated by her treatment records. Id. 15 at *5 (D. Ariz. Feb. 19, 2020) (“The ALJ was required to weigh [the doctor’s] opinion and, 16 in doing so, was permitted to review [the doctor’s] treatment records to determine whether 17 they provided support for his opinion.”). However, because the ALJ failed to articulate any 18 reason the “check-the-box” findings were unsubstantiated by the treatment records, as a 19 matter of law, the ALJ erred in assigning Dr. Peace’s opinion little weight. 20 ii. Dr. Ruzich 21 Plaintiff argues that the ALJ erred in rejecting Dr. Ruzich’s finding that 22 “[s]econdary to his psychological symptoms of apathy, hypersomnia, anxiety, difficulty 23 concentrating, and feeling the urge to escape the situation, he will have difficulty 24 completing a normal work-day and workweek, as well as maintaining regular attendance.” 25 (R. at 576). Plaintiff contends that Dr. Ruzich’s statement supports a finding that his 26 limitations are “inconsistent with the ability to sustain work,” and that the ALJ therefore 27 committed materially harmful error in rejecting this statement. (Doc. 17 at 13, 19). 28 Additionally, as noted by Plaintiff, the ALJ did not explain why she rejected this specific 1 statement despite finding the overall report “somewhat persuasive” (R. at 23; Doc. 21 at 2 7). 3 The reasoning provided by the ALJ for rejecting Dr. Ruzich’s statement was that 4 “the claimant has not required the hospitalization or intensive treatment which would 5 indicate such difficulty maintaining regular attendance.” (R. at 23). However, in the 6 immediately preceding sentences, the ALJ found that Dr. Ruzich’s opinions regarding 7 Plaintiff’s psychological limitations were “somewhat consistent with the medical evidence 8 of record and . . . supported by the claimant’s use of psychotropic medications and 9 attendance at therapy.” (R. at 22). The ALJ provided no further reason that the medical 10 evidence of record, if it supported a finding of at least some limitations, did not also support 11 Dr. Ruzich’s statement regarding the Plaintiff’s likely difficulty maintaining attendance at 12 work. The ALJ cited no other physicians’ opinions to support the proposition that 13 hospitalization or intensive treatment would be required to support Dr. Ruzich’s findings. 14 The ALJ cannot substitute her own judgment regarding appropriate treatment for 15 Dr. Ruzich’s judgment. See, e.g., Leusch v. Berryhill, 358 F. Supp. 3d 896, 906 (D. Ariz. 16 2019) (“ALJs cannot usurp the role of doctors when interpreting medical evidence.”). 17 Furthermore, the Court finds error in the ALJ’s rejection of Dr. Ruzich’s statement without 18 any explanation of the logical steps she might have taken to reject it. See, e.g., Maske, 2020 19 WL 813768, at *5 (finding that the ALJ erred in rejecting a medical opinion where she 20 “failed to build a logical bridge between the evidence and her conclusion”). 21 Thus the Court finds the ALJ improperly discounted the assessments of both Dr. 22 Peace and Dr. Ruzich by failing to provide an adequate explanation, supported by 23 substantial evidence, to reject either assessment. 24 B. The ALJ erred in rejecting Plaintiff’s subjective symptom testimony. 25 Next, Plaintiff argues that the ALJ improperly rejected Plaintiff’s own symptom 26 testimony without providing any specific, clear, and convincing reasons for doing so. (Doc. 27 17 at 19). When evaluating subjective symptom testimony, an ALJ must first find objective 28 medical evidence demonstrating an impairment that could reasonably cause a claimant’s 1 symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). A claimant’s 2 subjective testimony alone will not establish a disability, and an ALJ will determine 3 whether a claimant’s alleged limitations are consistent with medical sources and other 4 evidence in the record. 20 C.F.R. § 404.1529(a). Once a claimant has shown such an 5 impairment, if there is no evidence of malingering, the ALJ may reject the claimant’s 6 symptom testimony only if she offers specific, clear and convincing reasons for doing so. 7 Lingenfelter, 504 F.3d at 1036. This requires the ALJ to “specifically identify the testimony 8 [from a claimant] she or he finds not to be credible and . . . explain what evidence 9 undermines the testimony.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 10 (9th Cir. 2014) (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)). 11 Here, the ALJ found “the claimant’s medically determinable impairments could 12 reasonably be expected to cause the alleged symptoms,” but concluded that “the claimant’s 13 statements concerning the intensity, persistence and limiting effects of these symptoms are 14 not entirely consistent with the medical evidence and other evidence in the record.” (R. at 15 20). The ALJ only provides two specific reasons for questioning the veracity of the 16 Plaintiff’s subjective testimony: first, because he “engaged in a somewhat normal level of 17 daily activity and interaction,” and second, because he “went on a vacation since the alleged 18 onset date.” (Id.). 19 The ALJ found Plaintiff’s reported daily activities “less consistent with his 20 allegations of completely disabling symptoms.” (Id.). The ALJ states, for example, that the 21 Plaintiff was “able to prepare simple meals, wash dishes, do laundry, and perform 22 household cleaning,” as well as “use public transportation” and “[go] shopping in stores.” 23 (R. at 20). However, the Ninth Circuit “has repeatedly asserted that the mere fact that a 24 plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or 25 limited walking for exercise, does not in any way detract from [their] credibility as to [their] 26 overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). The 27 testimonies of the Plaintiff and the Plaintiff’s girlfriend, Sonja Mugnani, also indicate that 28 such activities did not take up a substantial amount of Plaintiff’s time. In Mugnani’s third- 1 party function report, she states that he only went grocery shopping “once a week” for “less 2 than an hour,” and that when he did, he “mostly [had] to be with [a] companion.” (R. at 3 229). If he prepared himself dinner, it was “usually something simple,” such as “instant 4 meals” or “stove top meals.” (Id. at 228). The Plaintiff’s own function report indicates that 5 his use of public transportation was out of necessity, as he did not have a car and “[got] 6 tired quickly walking.” (Id. at 237). Furthermore, although Plaintiff listed hiking as an 7 interest, he then stated that he “can’t hike anymore” due to his condition. (Id. at 238). 8 Therefore, the ALJ has not provided convincing evidence that the Plaintiff’s level of 9 activity, as described, was inconsistent with his claimed limitations, and those activities do 10 not detract from his credibility. Dagley v. Comm’r of Soc. Sec. Admin., No. CV-20-01370- 11 PHX-JJT, 2022 WL 343382, at *6 (D. Ariz. Feb. 4, 2022) (“[T]he Ninth Circuit has held 12 that “[o]nly if [a plaintiff’s] level of activity were inconsistent with [a plaintiff’s] claimed 13 limitations would these activities have any bearing on [her] credibility.” (quoting Reddick 14 v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). 15 As to the Plaintiff’s vacations, as the ALJ acknowledges, “a vacation and a disability 16 are not necessarily mutually exclusive.” (R. at 20). The ALJ discussed no details regarding 17 the nature of those vacations, nor how they would discount his allegation of disability. The 18 mere fact that a claimant has traveled one or more times during the relevant period is not a 19 sufficient reason to discount symptom testimony. E.g., Gines v. Comm’r of Soc. Sec. 20 Admin., No. CV-19-04479-PHX-JJT, 2020 WL 4345164, at *8 n. 2 (D. Ariz. July 29, 2020) 21 (finding a plaintiff’s trip to Hawaii to attend a memorial service insufficient to refute his 22 testimony regarding the severity of his pain and extent of his limitations); Ong v. Comm’r 23 of Soc. Sec. Admin., No. CV-17-00960-PHX-BSB, 2018 WL 3323169, at *10 (D. Ariz. 24 July 6, 2018) (finding that a plaintiff’s trips to Jamaica and Hawaii did not discount her 25 allegation of disability, because “the ALJ did not explain how Plaintiff’s travel was 26 inconsistent with any particular symptom testimony”); Moreno v. Colvin, 174 F. Supp. 3d 27 1112, 1120 (D. Ariz. 2016) (finding a plaintiff’s trip to Puerto Rico was not a sufficient 28 basis for the ALJ to reject her testimony regarding pain and fatigue without any 1 explanation). As Plaintiff explains in the Opening Brief (Doc. 17 at 23), he testified at the 2 administrative hearing that his trips to Washington state were “usually difficult,” and that 3 he had to “take breaks really often” (R. at 46–49). He also described his level of activity 4 during those vacations as “pretty much . . . sitting down . . . going to another place and 5 visiting and sitting down,” and confirmed that he still had to take daily naps and rest often. 6 (Id. at 48–49). The Plaintiff’s mere ability to travel was not a sufficient reason to reject his 7 subjective testimony, especially given his testimony that said travel was markedly impaired 8 by his disabilities. The ALJ did not provide clear, convincing reasons that Plaintiff’s travel 9 was inconsistent with any of his claimed impairments. Finally, the ALJ’s broad, 10 conclusory statement that Plaintiff’s subjective medical testimony is “not entirely 11 consistent with the medical evidence” is, on its own, an insufficient reason to reject that 12 testimony, and it is not supported by substantial evidence in this case. (R. at 20). Although 13 an ALJ may “consider the lack of corroborating medical records in determining the severity 14 of [a] [p]laintiff’s symptoms,” it cannot use the lack of objective medical evidence as the 15 sole basis for rejecting Plaintiff’s testimony. Ong, 2018 WL 3323169, at *10. In this case, 16 since the ALJ provided no sufficient alternate reason for a finding of non-credibility, she 17 failed to meet her legal burden regarding Plaintiff’s symptom testimony and erred in 18 rejecting it. 19 IV. REMAND FOR FURTHER PROCEEDINGS 20 This Court finds that the ALJ erred by 1) discrediting the medical opinions of Dr. 21 Peace and Dr. Ruzich, and 2) discounting Plaintiff’s subjective symptom testimony. The 22 only question remaining is whether this case should be remanded for further proceedings 23 or for an award of benefits. Plaintiff argues that the Court should apply the credit-as-true 24 rule and remand the case for a computation of benefits. (Doc. 17 at 24–25). Defendant asks 25 the Court to remand for further administrative proceedings. (Doc. 20 at 14–15). 26 Once a court has determined an ALJ’s decision contains harmful error, the decision 27 whether to remand a case for additional evidence or for an award of benefits is within the 28 discretion of that court. Reddick, 157 F.3d at 728; Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). “If additional proceedings can remedy defects in the original administrative 2|| proceedings, a social security case should be remanded. Where, however, a rehearing || would simply delay receipt of benefits, reversal [and an award of benefits] is appropriate.” Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). “Remand for further proceedings || 1s appropriate where there are outstanding issues that must be resolved before a || determination can be made, and it is not clear from the record that the ALJ would be 7\| required to find claimant disabled if all the evidence were properly evaluated.” Hill v. 8 || Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009)). Here, it is not clear from the record whether the ALJ would be required to find Plaintiff disabled if all the evidence were properly evaluated. There remain 11 |} outstanding issues to be resolved given the conflicting medical opinions regarding the □□ extent of Plaintiff's limitations. 13 Therefore, the Court, in its discretion, finds that a remand for further proceedings is 14]| appropriate. Accordingly, 15 IT IS ORDERED that the decision of the Commissioner of Social Security is 16 || vacated and remanded to the Commissioner of the Social Security Administration for 17|| further proceedings consistent with this order. 18 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment 19 || consistent with this Order and close this case. 20 Dated this 30th day of June, 2022. 21

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