Boteo v. Commissioner of Social Security

• Court: District Court, N.D. California
• Decided: March 16, 2022
• Docket: 1:20-cv-06510
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 APARICIO B.,1 Case No. 20-cv-06510-RMI

9 Plaintiff, ORDER RE: CROSS MOTIONS FOR 10 v. SUMMARY JUDGMENT

11 COMMISSIONER OF SOCIAL Re: Dkt. Nos. 19, 22 SECURITY, 12 Defendant. 13 14 Plaintiff, seeks judicial review of an administrative law judge (“ALJ”) decision denying his 15 application for benefits under Titles II and XVI of the Social Security Act. Plaintiff’s request for 16 review of the ALJ’s unfavorable decision was denied by the Appeals Council, thus, the ALJ’s 17 decision is the “final decision” of the Commissioner of Social Security which this court may 18 review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both parties have consented to the jurisdiction of a 19 magistrate judge (dkts. 9 & 10), and both parties have moved for summary judgment (dkts. 19 & 20 22). For the reasons stated below, Plaintiff’s motion for summary judgment is granted, 21 Defendant’s motion is denied, and the case is remanded for further proceedings. 22 LEGAL STANDARDS 23 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be 24 conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set 25 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 26 error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase 27 1 “substantial evidence” appears throughout administrative law and directs courts in their review of 2 factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 3 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as 4 adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 5 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In 6 determining whether the Commissioner’s findings are supported by substantial evidence,” a 7 district court must review the administrative record as a whole, considering “both the evidence 8 that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. 9 Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where 10 evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 11 679 (9th Cir. 2005). 12 PROCEDURAL HISTORY 13 On December 15, 2017, Plaintiff filed applications for Title II and Title XVI benefits, 14 alleging an onset date of January 7, 2015, as to both applications. See Administrative Record “AR” 15 at 21.2 As set forth in detail below, the ALJ found that Plaintiff was not disabled and denied the 16 applications on April 1, 2020. Id. at 21-29. The Appeals Council denied Plaintiff’s request for 17 review on July 20, 2020. See id. at 1-5. Thereafter, on September 16, 2020, Plaintiff sought review 18 in this court (dkt. 1) and argued that the ALJ failed to give legally adequate reasons for rejecting 19 his testimony regarding the nature, extent, and consequential limitations of his symptoms. See 20 Pl.’s Mot. (dkt. 19) at 12-17. Defendant contends that no such errors were committed, and that the 21 ALJ properly found that Plaintiff’s subjective complaints were inconsistent with the record. See 22 Def.’s Mot. (dkt. 22) at 4-11. 23 SUMMARY OF THE RELEVANT EVIDENCE 24 Given that the court finds error in the ALJ’s evaluation of Plaintiff’s pain and limitations 25 testimony, the following is a statement of the evidence that is relevant to that conclusion. By way 26

27 2 The AR, which is independently paginated, has been filed in several parts as a number of attachments to 1 of background, however, the court will first note a few biographical details. Plaintiff, who is now 2 57 years old, worked as a journeyman plumber from 1985 until January of 2015 when he became 3 unable to continue working due to his various medical conditions (including osteoarthritis, 4 bursitis, and gout). See Pl.’s Mot. (dkt. 19) at 6; see also AR at 52, 393. Since he became unable to 5 work in January of 2015, Plaintiff has been receiving public assistance while experiencing 6 homelessness, living in a friend’s van, and taking meals at his brother’s house. Id. at 51-52, 56-57. 7 On March 16, 2018, Plaintiff submitted a function report on a form entitled, “Exertion 8 Questionnaire” – through which he described the nature and extent of his symptoms and some of 9 the consequential limitations. See id. at 318-20. Therein, Plaintiff noted that pain, fatigue, 10 weakness, and dizziness prevent him from being able to work. Id. at 318. When asked to describe 11 the kinds of things he does on an average day, Plaintiff stated that he tries to walk but that, 12 invariably, he has to stop due to pain. Id. He added that he can walk about 4 to 6 blocks before 13 getting tired. Id. Plaintiff also noted the following: that he cannot climb stairs; that he is unable to 14 lift objects that are heavier than 5 pounds; and that he lives on the streets due to his pain and 15 financial circumstances. Id. at 319-20. 16 Thereafter, on February 27, 2020, Plaintiff testified at a hearing before the ALJ. See id. at 17 49-71. When asked why he is unable to work, Plaintiff testified that it is because of pain in his 18 knees, elbows, wrists, shoulders, neck, and feet. Id. at 52. More specifically, he testified that he 19 was laid off from his last plumbing job because his widespread joint pain made it increasingly 20 difficult for him to lift anything. Id. at 58-59. He then testified that his hands had become so weak 21 that, even when trying to lift something as light as six pounds, both hands would start shaking. Id. 22 at 59. He then added that the pain and weakness in both hands also operated to interfere with his 23 ability to grasp or hold objects, including objects as light as a cup of coffee. Id. at 59-60. 24 Regarding his shoulders, Plaintiff testified that his arthritic pain has rendered him unable to lift his 25 arms above the shoulder level in that when he tries to do so, “it shakes, it pains, there’s a lot of 26 pain.” Id. at 60. As for his knees, he testified that he experiences knee pain and weakness while 27 walking. Id. at 60-61. When asked how many minutes he is able to walk without needing to rest, 1 bit and keep walking again.” Id. at 61. He also noted that his gout and arthritis cause him to 2 experience painful swelling in his elbows, ankles, feet, and toes. Id. at 63-64. 3 As for objective indicia, Plaintiff’s treatment providers have consistently and repeatedly 4 noted the existence and extent of these symptoms during the course of countless treatment 5 sessions between 2014 and 2019. See e.g., id. at 372, 373, 379, 380, 707-08, 724-26, 728, 763-65, 6 789, 832-35, 836, 1271, 1309, 1413, 1516, 1518, 1520, 1531, 1532, 1534. In early November of 7 2014, for example, Plaintiff reported to the emergency room during a flare-up episode related to 8 his gout (among other conditions) – his treatment providers noticed that Plaintiff was vomiting 9 blood, experiencing dizziness, malaise, fatigue, and weakness. Id. at 372-73, 379-80. Thereafter, 10 in October of 2016, his treatment providers (including Alaric Kazuichi Akashi, M.D., his primary 11 care physician) observed that he had been suffering from “achiness [and] stiffness of both 12 shoulders, wrists, hands, [and] knees” for the past several months. Id. at 707. Dr. Akashi also 13 observed that Plaintiff’s shoulders, writs, and knees were all tender to palpation. Id. at 708. On this 14 occasion, diagnostic imaging showed degenerative changes in both of Plaintiff’s shoulders – more 15 specifically, imaging showed “mild acromioclavicular degenerative change” as well as “[s]clerosis 16 in the humeral head” in both of Plaintiff shoulders, in addition to evidence of strain to the rotator 17 cuff muscles in the left shoulder. Id. at 725-28. During the same month, further x-ray imaging of 18 Plaintiff’s wrists and hands showed “mild osteoarthritis involving the first carpometacarpal joint 19 and the first interphalangeal joint” in Plaintiff’s right hand, while showing “[r]adiocarpal 20 degenerative changes” and “joint space narrowing and subchondral sclerosis” in his left hand. Id. 21 at 743-44. 22 The following month, in December of 2016, Dr. Akashi noted that Plaintiff’s arthritis and 23 gout had combined to cause increased left knee and ankle swelling, adding that Plaintiff is “[a]ble 24 to walk with pain, but noticed increased swelling,” and, upon a physical examination, Lisa Wu, 25 M.D., independently observed that Plaintiff is “[p]ositive for joint pain.” Id. at 763, 765. The 26 following year, in December of 2017, Dr. Akashi noted that Plaintiff was “[s]till [afflicted] with 27 chronic achiness of [the] shoulders, knees, and hands.” Id. at 789. Several weeks later, in early 1 two pertinent and striking observations were rendered: (1) Plaintiff’s “[s]trength was difficult to 2 assess due to severe pain”; and (2) Plaintiff was “[u]nable to extend [his] wrists to test asterixis.”3 3 Id. at 832, 834. Several days earlier, on January 31, 2018, Dr. Akashi observed that Plaintiff was 4 experiencing a decreased range of motion in his neck, as well as pain and a decreased range of 5 motion with abduction and extension in both shoulders. Id. at 835-36. 6 Several months later, in June of 2018, Dr. Akashi observed that Plaintiff continues to 7 suffer from left foot pain and swelling, coupled with continued “chronic achiness of shoulders, 8 knees, and hands,” as well as the onset of a “resting tremor [in] both hands.” Id. at 1308-09. 9 During the remainder of 2018, and throughout 2019, Dr. Akashi repeatedly noted that Plaintiff’s 10 joints (from his neck down to his feet) were riddled with chronic swelling and persistent pain. See 11 e.g., id. at 1433, 1516, 1518 (noting also a decreased range of motion in Plaintiff’s left wrist 12 coupled with olecranon bursitis of the left elbow at the upper end of the ulna). Another round of x- 13 ray images – taken in November of 2019 – showed widespread osteoarthritis in both wrists and 14 hands (see id. at 1520) as well as degenerative changes in both hands and wrists, and 15 atherosclerosis4 in both ankles and feet (see id. at 1531). More specifically, x-ray images of 16 Plaintiff’s hands revealed a “[l]oss of joint spaces of the left carpus with subchondral sclerosis and 17 small osteophytes [along with] osteoarthritic changes in the right first interphalangeal joint.” Id. at 18 1532. X-ray images of Plaintiff’s feet revealed “[m]ild degenerative change at the left anterior 19 tibiotalar [ankle] joint,” attended with “vascular calcifications bilaterally in the ankles and feet 20 [and] [m]ild degenerative change at the right first MTP joint.” Id. Lastly, x-ray imaging of 21 Plaintiff’s knees showed “[m]arginal osteophytes in both knees.” Id. at 1534. 22 // 23 24 3 “Asterixis is a type of negative myoclonus [a spasmodic jerky contraction of groups of muscles] characterized by irregular lapses of posture of various body parts. It is an uncommon but important sign in 25 clinical neurology. Initially described as a ‘liver flap,’ its utility encompasses a galaxy of neurological and nonneurological situations.” See R. Agarwal and R. Baid, Asterixis, Journal of Postgraduate Medicine, 26 2016 Apr-Jun; 62(2): 115–117, available on the website of the National Library of Medicine: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4944342/ (last checked March 11, 2022, at 3:27 pm). 27 4 Atherosclerosis is a disease of the arteries characterized by the deposition of plaques of fatty material on 1 THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY 2 A person filing a claim for social security disability benefits (“the claimant”) must show 3 that he has the “inability to do any substantial gainful activity by reason of any medically 4 determinable physical or mental impairment” which has lasted or is expected to last for twelve or 5 more months. See 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909.5 The ALJ must consider all evidence in 6 the claimant’s case record to determine disability (see id. § 416.920(a)(3)), and must use a five- 7 step sequential evaluation process to determine whether the claimant is disabled (see id. § 8 416.920). “[T]he ALJ has a special duty to fully and fairly develop the record and to assure that 9 the claimant’s interests are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). 10 Here, the ALJ set forth the applicable law under the required five-step sequential 11 evaluation process. AR at 22-23. At Step One, the claimant bears the burden of showing he has not 12 been engaged in “substantial gainful activity” since the alleged date on which the claimant became 13 disabled. See 20 C.F.R. § 416.920(b). If the claimant has worked and the work is found to be 14 substantial gainful activity, the claimant will be found not disabled. See id. The ALJ in this case 15 found that Plaintiff had not engaged in substantial gainful activity since January 15, 2015, the 16 alleged onset date. AR at 24. Furthermore, for Title II purposes, the ALJ found that Plaintiff met 17 the insured status requirements of the Social Security Act through June 30, 2022. Id. 18 At Step Two, the claimant bears the burden of showing that he has a medically 19 determinable severe impairment or combination of impairments. See 20 C.F.R. § 416.920(a)(4)(ii), 20 (c). “An impairment is not severe if it is merely ‘a slight abnormality (or combination of slight 21 abnormalities) that has no more than a minimal effect on the ability to do basic work activities.’” 22 Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting S.S.R. No. 96–3(p) (1996)). At Step 23 Two, the ALJ found that Plaintiff suffered from the following severe impairments: osteoarthritis, 24 gout, and alcohol abuse. AR at 24. 25 At Step Three, the ALJ compares the claimant’s impairments to the impairments listed in 26

27 5 The regulations for supplemental security income (Title XVI) and disability insurance benefits (Title II) 1 appendix 1 to subpart P of part 404. See 20 C.F.R. § 416.920(a)(4)(iii), (d). The claimant bears the 2 burden of showing his impairments meet or equal an impairment in the listing. Id. If the claimant 3 is successful, a disability is presumed and benefits are awarded. Id. If the claimant is unsuccessful, 4 the ALJ assesses the claimant’s residual functional capacity (“RFC”) and proceeds to Step Four. 5 See id. § 416.920(a)(4)(iv), (e). Here, the ALJ found that Plaintiff did not have an impairment or 6 combination of impairments that met or medically equaled the severity of any of the listed 7 impairments. AR at 24. Next, the ALJ determined that Plaintiff retained the RFC to perform the 8 full range work at the medium exertional level with the following limitations and exceptions: 9 Plaintiff can frequently climb, stoop, kneel, crouch, and crawl; he can frequently reach, handle, 10 finger, and feel; and, he must avoid concentrated exposure to extreme cold and vibrations. Id. at 11 24-27. 12 At Step Four, the ALJ determined that Plaintiff is able to perform his past relevant work as 13 a journeyman plumber. Id. at 27. At Step Five, the ALJ determined that based on Plaintiff’s age, 14 education, work experience, and residual functioning capacity, as well as based on the testimony 15 of the vocational expert (“VE”) that Plaintiff could perform the functions of other jobs available in 16 the national economy – namely, that Plaintiff could work as an industrial cleaner, a hospital 17 cleaner, or a laundry worker. Id. at 28-29. Thus, the ALJ concluded that Plaintiff had not been 18 under a disability, as defined in the Social Security Act, at any time prior between the alleged 19 onset date, January 7, 2015, and the date of the ALJ’s decision, April 1, 2020. Id. at 29. 20 DISCUSSION 21 Plaintiff has raised a single issue through which error is assigned to the ALJ’s reasoning 22 for rejecting Plaintiff’s pain and symptom testimony. See Pl.’s Mot. (dkt. 19) at 12-16 (“The ALJ 23 failed to give specific, clear, and convincing reasons for discounting [Plaintiff’s] testimony.”). 24 Defendant, on the other hand, submits that “[t]he ALJ properly found Plaintiff’s subjective 25 complaints inconsistent with the record.” See Def.’s Mot. (dkt. 22) 4-11. The court will note at the 26 outset that the ALJ’s reasoning is non-specific in that the decision does not make it clear exactly 27 1 which parts of Plaintiff’s testimony were accepted and which parts were rejected6 – however, it 2 appears from the formulation of the RFC (which included virtually no allowance for Plaintiff’s 3 physical limitations) that the ALJ rejected all, or nearly all, of Plaintiff’s pain and symptom 4 testimony. See id. at 24, 25-27. As the court catalogs the various components of ALJ’s explanation 5 for rejecting Plaintiff’s testimony, the court will address each iota of reasoning seriatim. 6 One of the ALJ’s reasons for disbelieving Plaintiff’s testimony was that “he had not 7 received physical therapy [and] [h]is only treatment has consisted of medication.” Id. at 25. This 8 reasoning is flawed in that the ALJ is, in fact, quibbling with Plaintiff’s doctors’ approach to 9 treatment without being qualified to do so. See e.g., Banks v. Barnhart, 434 F. Supp. 2d 800, 805 10 (C.D. Cal. 2006) (“An ALJ cannot arbitrarily substitute his [or her] own judgment for competent 11 medical opinion[s] . . . and must not succumb to the temptation to play doctor and make . . . 12 independent medical findings.”). The ALJ also reasoned that Plaintiff “stated that the pain in his 13 feet are from joint pain and gout,” while noting that “he does not experience gout often [and] [h]e 14 testified that he has no other physical issues.” See AR at 25 (emphasis added). As is evident from 15 the above-recited portions of Plaintiff’s testimony (and the evidence from Plaintiff’s medical 16 records), this assertion due to be rejected because it is a gross mischaracterization of the record. 17 Next, the ALJ suggested that Plaintiff’s statements about the intensity, persistence, and limiting 18 effects of this symptoms “are not fully supported by the objective medical evidence and other 19 relevant documented evidence.” Id. (“[T]he weight of the objective evidence does not support the 20 claimant’s claims of disabling limitations to the degree [asserted].”) This portion of the ALJ’s 21 reasoning is flawed for two reasons. First, “[i]n evaluating the credibility of pain testimony after a 22 Plaintiff produces objective medical evidence of an underlying impairment, an ALJ may not reject 23 a Plaintiff’s subjective complaints based solely on a lack of medical evidence to fully corroborate 24 the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). That is exactly 25 what the ALJ did in this case. However, to make matters worse, (constituting the second reason 26 27 6 The ALJ used ubiquitous piece of boilerplate to reject Plaintiff’s testimony and stated that, “the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely 1 that this reasoning is faulty) the ALJ mischaracterized and misconstrued the medical evidence (as 2 set forth above), because it very much does confirm, corroborate, and bolster every bit of 3 Plaintiff’s testimony about the intensity, persistence, and limiting effects of his symptoms. The 4 ALJ also faulted Plaintiff because he “received [only] routine conservative treatment for 5 complaints of osteoarthritis and gout.” See AR at 27. While it is true that an “unexplained, or 6 inadequately explained, failure to seek treatment” may serve as a basis for an adverse credibility 7 finding unless one of a “number of good reasons for not doing so” applies for the failure to seek 8 treatment (see Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)), it is also true that “[d]isability 9 benefits may not be denied because of the claimant’s failure to obtain treatment he cannot obtain 10 for lack of funds.” Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). The ALJ’s reasoning in 11 this regard is – again – flawed for several reasons. First, it’s non-specific in that the ALJ’s 12 decision contains no indication of what further treatment Plaintiff could have pursued but failed to 13 do so. Second, the record established that upon losing his employment due to his inability to 14 continue working, Plaintiff became homeless to where he was forced to live in a friend’s 15 automobile – rendering his ability to purchase certain types of treatment (beyond that which he did 16 receive) questionable to say the least. Third, the ALJ’s contention is yet another misstatement of 17 the medical evidence of record (as set forth above) which clearly demonstrates that Plaintiff 18 sought consistent and frequent treatment from his physicians between 2014 and 2019. To expect 19 more from Plaintiff in this regard would amount to nothing more than placing an arbitrary and 20 insurmountable bar for indigent disability applicants for no legitimate reason and to the benefit of 21 no one. Finally, the ALJ’s last reason for discounting Plaintiff’s testimony is a statement to the 22 effect that “[t]here is no medical source statement from an examining or treating physician that 23 endorses the extent of the claimant’s alleged functional limitations.” See AR at 27. As stated 24 above, an ALJ cannot reject pain and symptom testimony simply because it is not fully 25 corroborated by medical opinion evidence. See Burch, 400 F.3d at 680. Second, because it is 26 incumbent on the ALJ to see to it that the record is fully and properly developed,7 it is improper 27 1 for the Commissioner to attempt to now saddle Plaintiff with the consequences of the ALJ’s own 2 failure to discharge his duty to fully develop the record. That is, if the ALJ considered the record 3 to be inadequately developed for the purposes of evaluating Plaintiff’s credibility, the proper 4 solution would have been to further develop the record (such as, for example, by contacting 5 Plaintiff’s treating physicians and asking them to render an opinion about Plaintiff’s limitations). 6 See Tonapetyan, 242 F.3d at 1150 (“The ALJ may discharge this duty [to develop the record] in 7 several ways, including: [by] subpoenaing the claimant’s physicians, submitting questions to the 8 claimant’s physicians, continuing the hearing, or [by] keeping the record open after the hearing to 9 allow [for] supplementation of the record.”). 10 The Commissioner uses a two-step analysis to determine the credibility of a claimant’s 11 symptoms. See SSR 16-3p, 2016 SSR LEXIS 4, 2016 WL 1119029, at *3 (Mar. 16, 2016). If the 12 claimant produces evidence of an underlying impairment “which could reasonably be expected to 13 produce the pain or other symptoms alleged,” and there is no evidence of malingering,8 the ALJ 14 must evaluate the intensity and persistence of the symptoms to determine the extent to which the 15 claimant’s symptoms limit the ability to perform work-related activities. See Lingenfelter v. 16 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). In this regard, the ALJ must compare the claimant’s 17 subjective complaints to the objective medical evidence in the record and must identify specific, 18 clear, and convincing reasons supported by substantial evidence in the record to support his or her 19 credibility analysis. Lingenfelter, 504 F.3d at 1036. This is the highest standard that an ALJ is 20 required to meet in Social Security cases. See Garrison v. Colvin, 759 F.3d 995, 1001 (9th Cir. 21 2014). In determining a claimant’s credibility, the ALJ may consider the objective medical 22 evidence, the claimant’s history of treatment, work activities, and activities of daily living. See 23 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). “General findings are insufficient; rather, 24 the ALJ must identify what testimony is not credible and what evidence undermines the claimant’s 25

26 duty to develop the record is triggered when, for example, the ALJ considers the evidence to be ambiguous 27 or considers the record to be inadequate to allow for proper evaluation of the evidence. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). 1 complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). In short, and for the reasons stated 2 above, the ALJ’s explanations fell short of these standards: (1) because the ALJ merely rendered 3 generalized non-specific findings (in that the ALJ failed to expound on which parts of Plaintiff’s 4 testimony were inconsistent with which parts of the record); (2) because the ALJ’s credibility 5 finding was premised on a near-total misapprehension and mischaracterization of the record; (3) 6 because the ALJ’s reasoning was unclear and unconvincing; and, (4) because the ALJ’s adverse 7 credibility determination is unsupported by substantial evidence. Thus, because the ALJ 8 improperly rejected Plaintiff’s pain and symptoms testimony, the entirety of that testimony (as set 9 forth above) will now be credited as true as a matter of law. See e.g., Christopher E. v. Comm’r of 10 SSA, No. 6:18-cv-00824-MK, 2019 U.S. Dist. LEXIS 132507, at *26 (D. Or. Aug. 7, 2019) (“The 11 ALJ’s statement is conclusory, and his analysis provides no specific, clear and convincing reasons 12 based on substantial evidence. For this reason alone Plaintiff’s testimony is credited as true.”); see 13 also Abraham A. v. Saul, No. 19-cv-04350-RMI, 2021 U.S. Dist. LEXIS 47072, at *20 (N.D. Cal. 14 Mar. 11, 2021) (same). 15 As such, this court’s mandate on remand in this case will have a limited scope. On 16 remand, the ALJ is ORDERED to do nothing more than to reengage the sequential evaluation 17 process, from Step Three forward, while giving controlling weight to Plaintiff’s testimony and the 18 medical evidence that has been described and discussed herein. Assuming that the sequential 19 evaluation process continues past Step Three, the ALJ is ORDERED to formulate the RFC on the 20 basis of Plaintiff’s testimony and the medical evidence discussed herein. See e.g., Stacy v. Colvin, 21 825 F.3d 563, 566 (9th Cir. 2016) (“[T]he law of the case doctrine and the rule of mandate apply 22 to social security administrative remands from federal court in the same way they would apply to 23 any other case.”). By way of recap, on remand the Commissioner shall be bound by this court’s 24 findings regarding this testimony and medical evidence. See Benecke v. Barnhart, 379 F.3d 587, 25 595 (9th Cir. 2004) (explaining that if a court were to “[a]llow the Commissioner to decide the[se] 26 issue[s] again [doing so] would create an unfair ‘heads we win; tails, let’s play again’ system of 27 disability benefits adjudication.”). Lastly, the court will note that the credit-as-true doctrine is not 1 improperly rejected evidence that will be credited as true but that is subject to further proceedings 2 (for the reasons expounded in Benecke).” 3 CONCLUSION 4 As described herein, Plaintiff's summary judgment motion (dkt. 19) is GRANTED, 5 || Defendant’s summary judgment motion (dkt. 22) is DENIED, and the case is REMANDED for 6 || further proceedings consistent with the orders and instructions provided herein. P g 7 IT IS SO ORDERED. 8 Dated: March 16, 2022 9 10 R@BERT M. ILLMAN United States Magistrate Judge 12

A 16 ° See also Baltazar v. Berryhill, No. CV 16-8132-E, 2017 U.S. Dist. LEXIS 83515, at *20-21 (C.D. Cal. May 31, 2017) ‘Accordingly, on remand the Administration shall credit as true Dr. Rubinstein’s opinion 17 regarding Plaintiff’s lifting capacity and shall conduct further proceedings to determine whether Plaintiff is = entitled to benefits prior to January 19, 2014.”); Stimson v. Colvin, 194 F. Supp. 3d 986, 1004 (N.D. Cal. 18 2016) (“The Court therefore remands for further proceedings. In keeping with the purposes underlying the credit-as-true rule, the Commissioner is instructed on remand to accept Dr. Hoque’s diagnosis for the 19 period from September 23, 2011 until Stimson’s July 2012 surgery and to devote further administrative proceedings to determining Stimson’s ability to work after his surgery.”); S.W. v. Colvin, No. CV 15-3189- 20 PLA, 2016 U.S. Dist. LEXIS 72834, at *8 (C.D. Cal. June 2, 2016) (“in its previous remand order, which instructed the ALJ on remand to credit as true William’s statements concerning plaintiff’s limitations . . .”); Page v. Colvin, 2016 U.S. Dist. LEXIS 161286, 2016 WL 6835075, at *6 (N.D. Cal. Nov. 20, 2016) (“the Treichler rule should not be interpreted to require that an ALJ be given a second chance to do what the ALJ 27 should have done correctly in the first place”); Derr v. Colvin, No. CV-12-00415-TUC-BPV, 2014 US. Dist. LEXIS 143961, at *39-40 (D. Ariz. Oct. 8, 2014) “Accordingly, the Court will reverse the 23 Commissioner’s final decision with a remand for further proceedings consistent with this opinion. The ALJ shall, on remand, credit Dr. Mittleman’s opinion as true, and credit Plaintiffs statements as true. On 24 remand the ALJ shall make a determination regarding onset date and reviewable findings regarding substance use.”); Adame v. Colvin, No. EDCV 12-1079 AGR, 2013 U.S. Dist. LEXTS 87694, at *17 (C.D. 25 Cal. June 21, 2013) (“the decision of the Commissioner is reversed and this matter remanded for further proceedings consistent with this opinion. Dr. Sophon’s lift/carry restriction must be credited as true on 26 remand.”); see also McNeill v. Colvin, 2013 U.S. Dist. LEXIS 24752, 2013 WL 645719, at *8 (C.D. Cal. 2013) (crediting treating physicians’ opinions as true and remanding for further administrative proceedings 27 rather than giving the Administration a third opportunity to provide legally sufficient reasons for rejecting a treating physicians’ opinions); Smith v. Astrue, 2011 U.S. Dist. LEXIS 101057, 2011 WL 3962107, at *8 28 (C.D. Cal. Sept. 8, 2011) (same); Toland v. Astrue, 2011 U.S. Dist. LEXIS 15411, 2011 WL 662336, at *8 (C.D. Cal. Feb. 14, 2011) (same).