1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Luana L. Boyan, No. CV-18-08340-PHX-SPL
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14
15 16 At issue is the denial of Plaintiff Luana Lee Boyan’s Application for Disability 17 Insurance Benefits by the Social Security Administration (“SSA”) under the Social 18 Security Act. Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review 19 of that denial, and the Court now addresses Plaintiff’s Opening Brief (Doc. 30, “Pl. Br.”) 20 Defendant SSA Commissioner’s Response Brief (Doc. 34, “Def. Br.”), and Plaintiff’s 21 Reply Brief (Doc. 35, “Reply”). The Court has reviewed the briefs and Administrative 22 Record (Doc. 29, “R.”) and now reverses and remands the Administrative Law Judge’s 23 decision (R. at 31–41) for a new disability determination. 24 I. BACKGROUND 25 Plaintiff filed an Application for Disability Insurance benefits on November 7, 2014, 26 for a period of disability beginning on January 31, 2014. (R. at 31.) Her claim was denied 27 initially on March 6, 2015, and upon reconsideration on August 17, 2015. (R. at 31.) 28 Plaintiff appeared before the ALJ for a video hearing regarding her claim on May 25, 2017, 1 which the ALJ denied on November 28, 2017. (R. at 31, 41.) On August 30, 2018, the 2 Appeals Council denied Plaintiff’s Request for Review and adopted the ALJ’s decision as 3 the agency’s final decision. (R. at 17–19.) 4 The Court has reviewed the medical evidence in its entirety and will discuss the 5 pertinent medical evidence in addressing the issues raised by the parties. Upon considering 6 the medical records and opinions, the ALJ evaluated Plaintiff’s disability based on the 7 following severe impairments: breast cancer status-post partial mastectomy, in remission, 8 but with residual fatigue and pain; benign hypertension; ischemic heart disease/coronary 9 atherosclerosis status-post stent placements in 2012; and chronic venous insufficiency. (R. 10 at 35.) 11 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 12 that Plaintiff was not disabled from the alleged disability onset-date through the date of the 13 decision. (R. at 41.) The ALJ found that Plaintiff “does not have an impairment or 14 combination of impairments that meets or medically equals the severity of one of the listed 15 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (R. at 36.) Next, the ALJ 16 calculated Plaintiff’s residual functional capacity (“RFC”) and found that “[Plaintiff] has 17 the [RFC] to perform a full range of light work as defined in 20 CFR 404.1567(b).” (R. at 18 37.) Accordingly, the ALJ found that Plaintiff can perform past relevant work as a traffic 19 clerk and traffic manager. (R. at 41.) 20 II. LEGAL STANDARD 21 In determining whether to reverse an ALJ’s decision, the district court reviews only 22 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 23 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 24 determination only if it is not supported by substantial evidence or is based on legal error. 25 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 26 that a reasonable person might accept as adequate to support a conclusion considering the 27 record as a whole. Id. To determine whether substantial evidence supports a decision, the 28 Court must consider the record as a whole and may not affirm simply by isolating a 1 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 2 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) (citations omitted). 5 To determine whether a claimant is disabled for purposes of the Act, the ALJ 6 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 7 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 8 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 9 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 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. 20 C.F.R. § 404.1520(a)(4)(ii). At 12 step three, the ALJ considers whether the claimant’s impairment or combination of 13 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 14 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 15 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 16 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 17 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 18 determines whether the claimant can perform any other work in the national economy 19 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 20 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 21 III. ANAYSIS 22 Plaintiff raises three issues for the Court’s consideration. First, Plaintiff argues the 23 ALJ erred at step two by not considering all relevant evidence in determining whether 24 Plaintiff’s generalized anxiety disorder was nonsevere. (Pl. Br. at 20–23.) Next, Plaintiff 25 argues the ALJ erred in assigning no weight to the completed RFC assessment created by 26 Dr. Mohammed Golparian and in assigning great weight to state agency medical 27 consultants, Dr. Luther Woodcock and Dr. Allen Radkowsky’s medical opinions. (Pl. Br. 28 1 at 7–15.) Finally, Plaintiff argues the ALJ erred in rejecting her symptom testimony. (Pl. 2 Br. at 15–20.) 3 The Court finds the ALJ did err at step two by not considering all relevant evidence 4 in determining whether Plaintiff’s generalized anxiety disorder was nonsevere. Second, the 5 ALJ did not err in assigning weight to the experts’ medical opinions because the ALJ 6 provided specific and legitimate reasons for the weight assigned to the opinions. Last, the 7 ALJ provided specific, clear, and convincing reasons for rejecting Plaintiff’s symptom 8 testimony by showing that Plaintiff’s symptom testimony conflicted with the medical 9 evidence and Plaintiff’s activities of daily living (“ADLs”). For the following reasons, the 10 Court reverses and remands for a new disability determination. 11 A. The ALJ erred at step two by not considering all relevant evidence in determining Plaintiff’s generalized anxiety disorder was nonsevere. 12 The Ninth Circuit Court of Appeals interprets the severity requirement as a “de 13 minimis screening device” designed to weed out groundless claims. Smolen v. Chater, 80 14 F.3d 1273, 1290 (9th Cir. 1996). An impairment is not severe if it does not significantly 15 limit the claimant’s ability to do basic work activities. 20 C.F.R. § 404.1520(c). “Basic 16 work activities are ‘abilities and aptitudes necessary to do most jobs, including, for 17 example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or 18 handling.’” Smolen, 80 F.3d at 1273 (citing 20 C.F.R. § 404.1520(b) (2014)). Only if the 19 evidence establishes a “slight abnormality that has no more than a minimal effect on an 20 individual’s ability to work” should the ALJ end the inquiry at step two. Soc. Sec. Ruling 21 85-28; Smolen, 80 F.3d at 1290. An ALJ’s decision to do so shall be affirmed only where 22 it is “clearly established by medical evidence.” Webb v. Barnhart, 433 F.3d 683, 687 (9th 23 Cir. 2005). 24 At step two, in analyzing Plaintiff’s medically determinable impairment of 25 generalized anxiety disorder, the ALJ found that Plaintiff had a mild limitation in the first 26 functional area of understanding, remembering, or applying information. (R. at 35.) The 27 ALJ found that the functional area of interacting with others, Plaintiff also had a mild 28 limitation. (R. at 35.) In the third functional area of concentrating, persisting, or maintain 1 pace, the ALJ found Plaintiff has a mild limitation. (R. at 35–36.) The fourth functional 2 area is adapting or managing oneself, and the ALJ found Plaintiff had a mild limitation. 3 (R. at 36.) 4 Plaintiff argues the ALJ erred in neglecting to consider relevant evidence in finding 5 that Plaintiff’s generalized anxiety disorder was nonsevere. (Pl. Br. at 21; R. at 36.) Plaintiff 6 points out that a generalized anxiety screening showed she had severe anxiety and major 7 depression. (R. at 644–45, 669–70.) Plaintiff argues she underwent mental health treatment 8 and had a global assessment functioning (“GAF”) score of 59, which suggests moderate 9 depression. (Pl. Br. at 21; R. at 660–62, 668–74, 677, 679, 681–82, 689, 693–706.) Plaintiff 10 explained that she had memory issues and isolated herself socially. (Pl. Br. at 21; R. at 11 558–63.) Plaintiff also took the medication Effexor. (Pl. Br. at 21; R. at 502–05.) 12 Though the ALJ cites to evidence supporting a finding on a nonsevere impairment, 13 Plaintiff points out there is contradictory evidence, as well. The evidence Plaintiff cites to 14 shows that there is more than a “slight abnormality” in her generalized anxiety disorder. 15 See Soc. Sec. Ruling 85-28; Smolen, 80 F.3d at 1290. The evidence indicates that Plaintiff’s 16 generalized anxiety disorder could have more than a minimal effect of her ability to work. 17 Because the ALJ only cited to specific evidence supporting his finding that Plaintiff’s 18 generalized anxiety disorder is nonsevere and failed to consider other relevant evidence, 19 the Court finds the ALJ erred at step two. 20 B. The ALJ did not err in assigning weight to the medical opinions of Dr. Golparian, Dr. Woodcock, and Dr. Radkowsky. 21 Plaintiff argues the ALJ erred in assigning weight to the opinions of Dr. Golparian, 22 Dr. Woodcock, and Dr. Radkowsky. (Pl. Br. at 7–15.) While “[t]he ALJ must consider all 23 medical opinion evidence,” there is a hierarchy among the sources of medical opinions. 24 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Those who have treated a 25 claimant are treating physicians, those who examined but did not treat the claimant are 26 examining physicians, and those who neither examined nor treated the claimant are 27 nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a general 28 rule, more weight should be given to the opinion of a treating source than to the opinion of 1 doctors who did not treat the claimant.” Id. This is so because treating physicians have the 2 advantage of in-person interaction and typically a longer history of treatment than a 3 claimant’s other doctors, and their “subjective judgments . . . are important, and properly 4 play a part in their medical evaluations.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 5 1988). 6 An ALJ “may only reject a treating or examining physician’s uncontradicted 7 medical opinion based on ‘clear and convincing reasons.’” Carmickle v. Comm’r of Soc. 8 Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830–31). “Where such 9 an opinion is contradicted, however, it may be rejected for specific and legitimate reasons 10 that are supported by substantial evidence in the record.” Id. An ALJ meets this standard 11 by “setting out a detailed and thorough summary of the facts and conflicting medical 12 evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 13 881 F.2d 747, 751 (9th Cir. 1989). 14 First, the ALJ assigned no weight to Dr. Golparian’s opinion because it was 15 inconsistent with the medical record and Plaintiff’s daily activities. (R. at 40.) On 16 December 5, 2016, Dr. Golparian completed an RFC assessment that showed Plaintiff had 17 severely restrictive functional limitations. (R. at 39, 566–71.) The ALJ pointed out that Dr. 18 Golparian opined that Plaintiff could never lift or carry any weight, sit or stand for three 19 hours in an eight-hour workday, walk for two hours in an eight-hour workday, never 20 perform postural activities except occasional balancing, and occasionally operate a motor 21 vehicle. (R. at 40.) Dr. Golparian also opined that Plaintiff could not shop, travel without 22 a companion, walk a block, use public transportation, care for her personal hygiene, or sort 23 papers. (R. at 40, 566–71.) 24 The ALJ found Dr. Golparian’s opinion was inconsistent with other medical 25 evidence and with Plaintiff’s own statements regarding her activities. (R. at 40.) The ALJ 26 notes that Dr. Golparian indicated there were no acute findings in the lumbar spine and 27 only mild arthritis in an x-ray examination conducted on October 13, 2016. (R. at 40, 803.) 28 In a November 2016 stress test, Plaintiff demonstrated good exercise tolerance and 1 displayed no signs of chest pain. (R. at 40, 725, 728.) In April 2017, Plaintiff was examined 2 by Dr. Simak Rassadi, and the findings were within normal limits. (R. at 40, 740–43.) 3 Finally, the ALJ noted that Plaintiff’s own testimony showed she was able to tend to her 4 personal hygiene, prepare simple meals, drive, go out by herself, and go grocery shopping 5 with her boyfriend. (R. at 40, 281–84, 551, 560.) 6 Plaintiff argues the ALJ rejected Dr. Golparian’s opinion based on an x-ray showing 7 mild osteoarthritis, but that Dr. Golparian’s opinion encompasses more, including residuals 8 from breast cancer such as fatigue, neuropathy, and medication side effects resulting in 9 memory loss and costochondritis pain. (Pl. Br. at 12; R. at 40, 567.) But the ALJ points to 10 specific evidence in the medical record that contradicts Dr. Golparian’s opinions. For 11 example, in October 2016, Plaintiff had a lumbar spine imaging that showed no acute 12 findings and mild osteoarthritis. (R. at 40, 803.) Additionally, the ALJ refers to a November 13 2016 stress test that showed good exercise tolerance and revealed no signs of chest pain or 14 significant arrhythmia. (R. at 40, 725, 728.) The ALJ also explained that an April 2017 15 examination showed a grade III murmur but indicated there were no other abnormalities. 16 (R. at 40, 742.) 17 Plaintiff also contends the ALJ erred in assigning no weight to Dr. Golparian’s 18 opinion based on Plaintiff’s daily activities. (Pl. Br. at 12–13.) Plaintiff points out that she 19 was unable to walk for long periods of time; she could only do household chores, such as 20 dishes, in increments; her boyfriend had to help her shop; she cannot exercise because it 21 feels like she cannot breathe; and though she did not need help with personal hygiene, it 22 takes her two hours to get ready. (Pl. Br. at 12–13; R. at 334–35, 551, 559–60, 666.) 23 Plaintiff argues her daily activities are consistent with Dr. Golparian’s opinion that Plaintiff 24 has problems with personal hygiene, could not use public transportation, could not shop 25 alone, and could not walk at a reasonable pace. (Pl. Br. at 13; R. at 560, 571, 666.) Again, 26 the ALJ demonstrated that Dr. Golparian’s opinion was not consistent with Plaintiff’s daily 27 activities, which showed, for example, Plaintiff can prepare simple meals, drive, grocery 28 1 shop, care for her personal hygiene, perform simple household chores, and manage her 2 finances. (R. at 40, 281–84, 551, 560.) 3 The Court finds that the ALJ has not erred in assigning no weight to Dr. Golparian’s 4 opinion. The ALJ provided specific and legitimate reasons supported by substantial 5 evidence for assigning no weight to Dr. Golparian’s opinion. The ALJ cited to specific 6 evidence in the medical record and pointed out Plaintiff’s daily activities that directly 7 contradict Dr. Golparian’s opinion. 8 Next, the ALJ assigned great weight to the opinions of Dr. Woodcock and Dr. 9 Radkowsky. (R. at 39.) Both opined that Plaintiff could lift and carry 20 pounds 10 occasionally and ten pounds frequently and walk for six hours in an eight-hour workday. 11 (R. at 39, 106–07, 122–24.) The ALJ reasoned that though Dr. Woodcock and Dr. 12 Radkowsky did not examine Plaintiff, they both considered evidence in the record. (R. at 13 39.) For example, both doctors considered that on July 1, 2015, when Plaintiff presented 14 for a consultative examination, Plaintiff’s physical examination was within normal limits, 15 and that on June 4, 2016, Plaintiff indicated she had weakness and tingling in her lower 16 extremities but ambulated normally without an assistive device. (R. at 39, 550–56.) The 17 ALJ pointed out that Dr. Woodcock and Dr. Radkowsky also reviewed records indicating 18 Plaintiff had intact sensation to light touch, monofilament in the bilateral lower extremities, 19 symmetrical reflexes, and 5/5 motor, tone, and strength. (R. at 39, 624.) The ALJ also cited 20 to evidence that Plaintiff went to the emergency room on March 15, 2017, for chest pain 21 and she had mild chest wall tenderness but retained normal musculoskeletal range of 22 motion and strength. (R. at 39, 871.) For these reasons, the ALJ assigned Dr. Woodcock 23 and Dr. Radkowsky’s opinions great weight. (R. at 39.) 24 Plaintiff argues the ALJ erred in assigning great weight to Dr. Woodcock and Dr. 25 Radkowsky’s opinions because their opinions were rendered in February 2015, before 26 much of the medical evidence in the record even existed. (Pl. Br. at 9.) Plaintiff points out 27 that after Dr. Woodcock and Dr. Radkowsky’s opinions were written, Plaintiff had ongoing 28 treatment for join pain, excessive fatigue, and dizziness. (Pl. Br. at 9; R. at 573, 627–34, 1 733–35, 737, 748–51, 1063–65.) Additionally, Plaintiff points out that their opinions 2 predate an EMG showing mild sensory motor and autonomic peripheral neuropathy and an 3 increase in Gabapentin and an x-ray showing mild osteoarthritis of the sacroiliac joints. 4 (Pl. Br. at 9; R. at 681, 757.) Plaintiff also notes that Dr. Woodcock and Dr. Radkowsky 5 did not have Dr. Golparian’s RFC, evidence of Plaintiff’s abnormal echocardiogram, and 6 Dr. Beyer’s diagnosis of costochondritis. (Pl. Br. at 9; R. at 566–71, 708–14, 733–35.) 7 Regardless, the ALJ provided specific and legitimate reasons for assigning great 8 weight to Dr. Woodcock and Dr. Radkowsky’s opinions. The ALJ pointed to specific 9 evidence in the record that supported Dr. Woodcock and Dr. Radkowsky’s opinions. For 10 example, the ALJ explained that Dr. Woodcock and Dr. Radkowsky’s opinions included 11 Dr. Justin Garrison’s normal examination findings in July 2015. (R. at 39, 550–56.) The 12 ALJ also cited to records showing Plaintiff had normal ambulation, strength, and reflexes, 13 as well as a March 2017 physical examination that showed normal physical findings when 14 Plaintiff went to the emergency department look for treatment for pain. (R. at 39, 624, 871.) 15 Additionally, this Court has found the ALJ did not err in assigning no weight to Dr. 16 Golparian’s opinion, so Dr. Woodcock and Dr. Radkowsky’s opinions are not lacking 17 because they did not consider Dr. Golparian’s opinion. Further, though Dr. Woodcock and 18 Dr. Radkowsky did not consider Dr. Beyer’s opinion that there was no good treatment for 19 Plaintiff’s chest pain, as Defendant points out, Dr. Beyer also opined that conservative 20 treatment, such as massage and physical therapy could help control Plainitff’s symptoms. 21 (Def. Br. at 14; R. at 714.) The Court finds the ALJ provided specific and legitimate reasons 22 supported by substantial evidence in assigning great weight to Dr. Woodcock and Dr. 23 Radkowsky’s opinions. 24 C. The ALJ provided specific, clear, and convincing reasons supported by substantial evidence for rejecting Plaintiff’s symptom testimony. 25 Plaintiff argues the ALJ erred in rejecting her symptom testimony. (Pl. Br. at 15– 26 20.) An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 27 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ 28 evaluates whether the claimant has presented objective medical evidence of an impairment 1 “which could reasonably be expected to produce the pain or symptoms alleged.” 2 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. 3 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). 4 If the claimant presents such evidence then “the ALJ can reject the claimant’s testimony 5 about the severity of her symptoms only by offering specific, clear and convincing reasons 6 for doing so.” Garrison, 759 F.3d at 1014–15 (citing Smolen, 80 F.3d at 1281). This is the 7 most demanding standard in Social Security cases. Id. at 1015. “In evaluating the 8 credibility of pain testimony after a claimant produces objective medical evidence of an 9 underlying impairment, an ALJ may not reject a claimant’s subjective complaints based 10 solely on a lack of medical evidence to fully corroborate the alleged severity of pain.” 11 Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). 12 Here, the ALJ found “[Plaintiff’s] medically determinable impairments could 13 reasonably be expected to cause some of the alleged symptoms; however, [Plaintiff’s] 14 statements concerning the alleged intensity, persistence and limiting effects of these 15 symptoms are not entirely consistent with the medical evidence and other evidence in the 16 record for the reasons explained throughout this decision.” (R. at 37–38.) 17 Plaintiff underwent radiation therapy and did a nine-month course of Tamoxifen as 18 treatment for breast cancer in her left breast. (R. at 38, 391–412, 451–52.) Plaintiff also 19 had treatment of coronary artery disease and had stents implemented in the left anterior 20 descending coronary artery and left circumflex arteries in 2012. (R. at 38, 409–12, 451– 21 52.) Plaintiff has not had recurring or spreading cancer since her treatment, and she has not 22 required additional stenting since her procedures. (R. at 38.) Plaintiff has, however 23 experienced rib pain, fatigue and shortness of breath. (R. at 38, 423, 425–26, 467, 470.) 24 The ALJ found that Plaintiff’s medical examinations show she had a greater degree 25 of functional ability than she alleged despite her symptom testimony. (R. at 38.) In a 26 November 2014, medical examination Plaintiff had significant findings for a 27 physiologically split S2, but the other medical findings were normal. (R. at 38, 467–68.) In 28 January 2015, Plaintiff had a follow up examination that, again, had significant findings 1 for a physiologically split S2, but were otherwise normal, and Plaintiff reported exercising 2 and feeling well. (R. at 38, 465.) At that same medical appointment, the doctor noted 3 Plaintiff’s hypertension was well controlled with medication. (R. at 38, 465.) A nuclear 4 and exercise stress test in November 2016 showed Plaintiff had good exercise capacity. (R. 5 at 38, 725, 728.) Plaintiff also did not show any evidence of joint abnormalities, 6 compromised muscle tone, or restricted range of motion in a March 2017 medical 7 examination. (R. at 38, 712–13.) 8 Plaintiff’s only argument for why the ALJ erred in considering the medical record 9 in discounting Plaintiff’s symptom testimony is that the ALJ did not include evidence of 10 Plaintiff’s abnormal echocardiogram and her diagnosis of autonomic and sensory 11 neuropathy. (Pl. Br. at 17; R. at 581, 586, 617, 623, 733–35.) Plaintiff takes issue with the 12 fact that the ALJ did not include this impairment at step two but does not provide any 13 analysis. (Pl. Br. at 17; R. at 35.) Therefore, the Court will not consider the argument. See 14 Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (finding that arguments that are 15 presented without substantive analysis are waived). The Court finds the ALJ provided 16 specific, clear, and convincing reasons for why the medical evidence differs from 17 Plaintiff’s symptom testimony by citing to specific medical evidence in the record. 18 The ALJ also explained that Plaintiff’s ADLs were inconsistent with her symptom 19 testimony. (R. at 38–39.) Plaintiff indicated she could tend to her personal hygiene but that 20 it took her much longer than it used to. (R. at 38, 64.) Additionally, Plaintiff explained that 21 she could prepare simple meals, do some household chores, and manage her finances. (R. 22 at 38, 64, 66, 68–69, 666–67.) Plaintiff also indicated she enjoys reading and watching 23 television, and she socializes with others on the phone and computer. (R. at 38–39, 69–70, 24 77–79, 285, 560.) The ALJ explained that though these activities may not translate to 25 Plaintiff’s ability to perform unrestricted substantial gainful activity, Plaintiff’s ADLs 26 show that she had a greater degree of functioning than alleged. (R. at 38–39.) 27 Plaintiff also argues the ALJ erred in rejecting her symptom testimony based on 28 Plaintiff’s ADLs, but Plaintiff’s analysis merely recounts the same ADLs the ALJ outlined 1 in the analysis. Plaintiff’s argument does not demonstrate any error. The Court finds the 2 ALJ provided specific, clear, and convincing reasons showing Plaintiff’s ADLs 3 contradicted her symptom testimony. 4 D. The credit-as-true rule does not apply. 5 Plaintiff asks the Court for an award of benefits rather than further proceedings, but 6 Plaintiff does not apply the “credit-as-true” rule. (Pl. Br. at 23.) The credit-as-true rule only 7 applies in cases where three elements are present. Treichler v. Comm’r of Soc. Sec., 775 8 F.3d 1090, 1099–1102 (9th Cir. 2014). First, the ALJ must have failed to provide legally 9 sufficient reasons for rejecting medical evidence. Id. at 1100. Second, the record must be 10 fully developed, there must be no outstanding issues that must be resolved before a 11 determination of disability can be made, and the Court must find that further administrative 12 proceedings would not be useful. Id. at 1101. Further proceedings are considered useful 13 when there are conflicts and ambiguities that must be resolved. Id. Third, if the above 14 elements are met, the Court may “find[] the relevant testimony credible as a matter of law 15 . . . and then determine whether the record, taken as a whole, leaves ‘not the slightest 16 uncertainty as to the outcome of [the] proceeding.’” Id. (citations omitted). 17 Here, the ordinary remand rule, not the credit-as-true rule, applies. Because the ALJ 18 erred at step two, he did not consider all the relevant medical evidence and the credit-as- 19 true rule fails at step one. The Court reverses and remands for further consideration of the 20 medical record at step two and for a new disability determination. 21 IT IS THEREFORE ORDERED reversing and remanding the November 28, 22 2017 decision of the Administrative Law Judge for a new disability determination. (R. at 23 31–41.) 24 /// 25 /// 26 /// 27 /// 28 /// 1 IT IS FURTHER ORDERED directing the Clerk to enter final judgment 2 || consistent with this Order and close this case. 3 Dated this 13th day of August, 2021. 4
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