Bruce Rosenblum v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: December 17, 2020
• Docket: 5:19-cv-02050
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 BRUCE DAVID R.,1 Case No. 5:19-CV-02050-MAA

12 Plaintiff, MEMORANDUM DECISION AND

13 ORDER REVERSING DECISION OF v. 14 THE COMMISSIONER AND ANDREW M. SAUL, Commissioner REMANDING FOR FURTHER 15 of Social Security, ADMINISTRATIVE PROCEEDINGS

16 Defendant. 17 18 19 Bruce David R. (“Plaintiff”) seeks review of the final decision of the 20 Commissioner of Social Security (“Defendant,” “Commissioner,” or 21 “Administration”) denying his application under Title II of the Social Security Act. 22 (Compl., ECF No. 1.) Pursuant to 28 U.S.C. § 636(c), the parties consented to the 23 jurisdiction of a United States Magistrate Judge. (ECF Nos. 12–13.) For the reasons 24 discussed below, the Court reverses the decision of the Commissioner and remands 25 the matter for further administrative proceedings.

26 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil 27 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United 28 States. 1 I. SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 On July 8, 2016, Plaintiff filed an application under Title II for a period of 3 disability and disability insurance benefits, alleging disability beginning on April 1, 4 1992. (Administrative Record (“AR”) 115–23.) The Commissioner denied the 5 application on August 8, 2016. (AR 73–76.) On September 20, 2016, Plaintiff 6 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 77.) ALJ 7 Salena D. Bowman-Davis conducted a hearing on August 28, 2018, where Plaintiff 8 appeared without counsel. (AR 39–57.) 9 In a decision issued on October 10, 2018, the ALJ denied Plaintiff’s 10 application after making the following findings pursuant to the Commissioner’s five- 11 step evaluation. (AR 8–18.) At step one, the ALJ stated that Plaintiff had not 12 engaged in substantial gainful activity from his alleged onset date of April 1, 1992, 13 through December 31, 2000, his date last insured. (AR 13.) At step two, the ALJ 14 found that through the date last insured, there were no medical signs or laboratory 15 findings to substantiate the existence of a medically determinable impairment. (AR 16 13.) Thus, the ALJ concluded that Plaintiff was not disabled, as defined by the 17 Social Security Act, at any time from April 1, 1992 through December 31, 2000. 18 (AR 14.) 19 Plaintiff requested review with the Appeals Council on December 13, 2018. 20 (AR 108–09.) The Appeals Council denied the request for review on September 5, 21 2019. (AR 1–5.) Thus, the ALJ’s decision became the final decision of the 22 Commissioner. 23 24 II. STANDARD OF REVIEW 25 Pursuant to 42 U.S.C. § 405(g), the Court reviews the Commissioner’s final 26 decision to determine whether the Commissioner’s findings are supported by 27 substantial evidence and whether the proper legal standards were applied. See 28 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). 1 “‘Substantial evidence’ means more than a mere scintilla, but less than a 2 preponderance; it is such relevant evidence as a reasonable person might accept as 3 adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 4 Cir. 2007); see also Richardson v. Perales, 402 U.S. 389, 401 (1971). This Court 5 “must consider the record as a whole, weighing both the evidence that supports and 6 the evidence that detracts from the Commissioner’s conclusion, and may not affirm 7 simply by isolating a specific quantum of supporting evidence.” Trevizo v. 8 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 9 995, 1009 (9th Cir. 2014)). “‘Where evidence is susceptible to more than one 10 rational interpretation,’ the ALJ’s decision should be upheld.” Orn v. Astrue, 495 11 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th 12 Cir. 2005)). 13 14 III. DISCUSSION 15 The single disputed issue is whether the ALJ properly assessed evidence of 16 Plaintiff’s loss of vision and properly found at step two that it was not a severe 17 impairment. (Joint Stip. 3, ECF No. 21.) Plaintiff contends that the ALJ failed to 18 properly assess his visual impairments because she failed to properly evaluate his 19 disability onset date, erroneously rejected the records and opinions of his treating 20 physicians, improperly disregarded his testimony, and failed to fully and fairly 21 develop the administrative record. (Id. at 3–11.) Defendant argues that the ALJ was 22 correct in finding that Plaintiff did not prove disability prior to 2000, the date last 23 insured. (Id. at 11–18.) For the reasons stated below, the Court finds that reversal 24 and remand is appropriate. 25 /// 26 /// 27 /// 28 /// 1 A. Legal Standards 2 1. Step Two Determination 3 “[T]he step two inquiry is a de minimis screening device to dispose of 4 groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); see also 5 Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (“Step two is merely a 6 threshold determination meant to screen out weak claims.”). At step two, the ALJ 7 must determine whether the claimant has an impairment, or combination of 8 impairments, that is “severe” or “not severe.” See 20 C.F.R. § 404.1520(a)(4)(ii). 9 An impairment is not severe if it does not significantly limit the claimant’s physical 10 or mental ability to do basic work activities. See 20 C.F.R. § 404.1520(c). In other 11 words, an impairment is not severe “when medical evidence establishes only a slight 12 abnormality or combination of slight abnormalities which would have no more than 13 a minimal effect on an individual’s ability to work.” Yuckert v. Bowen, 841 F.2d 14 303, 306 (9th Cir. 1988). A finding of non-severity at step two must be “clearly 15 established by medical evidence.” See Webb v. Barnhart, 433 F.3d 683, 687 (9th 16 Cir. 2005). If a claimant meets her evidentiary burden under step two’s de minimis 17 standard, an ALJ “must find that the impairment is ‘severe’ and move to the next 18 step” in the five-step evaluation. See Edlund v. Massanari, 253 F.3d 1152, 1160 19 (9th Cir. 2001). 20 In weighing medical source opinions in Social Security cases, the Ninth 21 Circuit distinguishes three types of physicians: (1) treating physicians, who treat the 22 claimant; (2) examining physicians, who examine but do not treat the claimant; and 23 (3) nonexamining physicians, who neither treat nor examine the claimant. Lester v. 24 Chater, 81 F.3d 821, 830 (9th Cir. 1995). “Generally, a treating physician’s opinion 25 carries more weight than an examining physician’s, and an examining physician’s 26 opinion carries more weight than a reviewing physician’s.” Holohan v. Massanari, 27 246 F.3d 1195, 1202 (9th Cir. 2001). A treating physician’s medical opinion is 28 given “controlling weight” if it “is well-supported by medically acceptable clinical 1 and laboratory diagnostic techniques and is not inconsistent with the other 2 substantial evidence in [the claimant’s] case record.” 20 C.F.R. §§ 404.1527(c)(2), 3 416.927(c)(2); see also Trevizo, 871 F.3d at 675. The weight given to a non-treating 4 physician’s opinion depends on the length and frequency of examination, the nature 5 and extent of the treatment relationship, the evidentiary support for the opinion, 6 consistency with the record, and the physician’s specialty, among other factors. 20 7 C.F.R. §§ 404.1527(c)(1)–(6), 416.927(c)(1)–(6). 8 The ALJ is obligated to evaluate all medical opinions of record, resolve 9 conflicts in medical testimony, and analyze evidence. 20 C.F.R. §§ 404.1527(c), 10 416.927(c); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If a treating or 11 examining physician’s opinion is uncontradicted, an ALJ may reject it only by 12 offering “clear and convincing reasons that are supported by substantial evidence.” 13 Trevizo, 871 F.3d at 675 (quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 14 (9th Cir. 2008)). “If a treating or examining doctor’s opinion is contradicted by 15 another doctor’s opinion, an ALJ may only reject it by providing specific and 16 legitimate reasons that are supported by substantial evidence.” Id. (quoting Ryan, 17 528 F.3d at 1198). “The ALJ can meet this burden by setting out a detailed and 18 thorough summary of the facts and conflicting clinical evidence, stating his 19 interpretation thereof, and making findings.” Id. (quoting Magallanes, 881 F.2d at 20 751). 21 In rejecting a medical opinion, the ALJ must do more than state conclusions; 22 the ALJ must set forth his or her interpretations and explain why those 23 interpretations, rather than the doctor’s, are correct. Reddick v. Chater, 157 F.3d 24 715, 725 (9th Cir. 1998). But the ALJ need not give weight to conclusory opinions 25 inadequately supported by clinical findings. See Bayliss v. Barnhart, 427 F.3d 1211, 26 1216 (9th Cir. 2005). 27 /// 28 /// 1 2. ALJ’s Duty to Develop Record 2 “Social Security proceedings are inquisitorial rather than adversarial. It is the 3 ALJ’s duty to investigate the facts and develop the arguments both for and against 4 granting benefits . . . .” Sims v. Apfel, 530 U.S. 103, 110–11 (2000). The ALJ has a 5 special duty in social security cases to “fully and fairly develop the record and to 6 assure that the claimant’s interests are considered.” Smolen, 80 F.3d at 1288 7 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). “This duty extends 8 to the represented as well as to the unrepresented claimant.” Tonapetyan v. Halter, 9 242 F.3d 1144, 1150 (9th Cir. 2001). “When the claimant is unrepresented, 10 however, the ALJ must be especially diligent in exploring for all the relevant facts.” 11 Id.. “An ALJ’s duty to develop the record further is triggered only when there is 12 ambiguous evidence or when the record is inadequate to allow for proper evaluation 13 of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001). “The 14 ALJ may discharge this duty in several ways, including: subpoenaing the claimant’s 15 physicians, submitting questions to the claimant’s physicians, continuing the 16 hearing, or keeping the record open after the hearing to allow supplementation of the 17 record.” Tonapetyan, 242 F.3d at 1150. 18 19 B. Background 20 The medical record contained evidence of Plaintiff’s visual impairments 21 from two treating physicians. First, the record included a one-page handwritten 22 note by Dr. A.Z. Mazer, with a “Date[] of Observation” of September 4, 1990. (AR 23 180.) The note stated that Plaintiff wanted a referral to a low-vision specialist, that 24 Plaintiff had “aniridia since birth,” that he had 20/200 vision in both eyes, and that 25 “[n]o glasses have helped.” (AR 180.) Under this section, Dr. Mazer included the 26 following notes: “lids 0,” “conj 0,” “cornea clear,” “aniridia OU,” “lens,” a 27 drawing of two eyes, “central nuclear cataracts OU,” “fundi mac hypoplasia OU,” 28 “+ nystagmus,” “+ RHT.” (AR 180.) At the bottom of the page, Dr. Mazer noted 1 that Plaintiff “needs low visions aids” and “plan: will refer to LL for low vision.” 2 (AR 180.) The record also included a January 15, 1991 letter from Optometric 3 Center of Fullerton to Riverside Medical Clinic, which stated: “Your patient, 4 [Plaintiff], was seen in this center for a low vision evaluation on October 10 and 17, 5 1990, by referral from Dr. Anne Mazer. The fee for this service is $90.” (AR 191.) 6 Second, the record included a statement from Dr. Clinton Wong, dated June 7 27, 2016, which stated: “We had the opportunity to provide optometric care for 8 [Plaintiff] on September 11, 2015. He is legally blind based upon poor visual 9 acuities (from aniridia) and the presence of cataracts. Best corrected vision is 10 20/400.” (AR 178.) 11 At the August 28, 2018 hearing, Plaintiff provided the following testimony. 12 Plaintiff testified that he was tested as a child (AR 47); that he “had to go back 13 twice” to Dr. Mazer—once for “all kinds of tests” and then “my diet chart and 14 different things”—and that Dr. Mazer “looked into [his] eyes with all her stuff, and 15 she tried to fit [him] with various glasses and binoculars and all that type of stuff” 16 (AR 48–49); that the low vision specialist told him there was nothing they could do 17 to help him and that removing his cataracts would hurt his vision (AR 44, 49); and 18 that Plaintiff did not go to any doctor after 1990 until Dr. Wong because he was told 19 nothing could be done to help him (AR 49). 20 Plaintiff testified that he previously worked as a merchandiser, and described 21 the experience as follows: “It was a—it was really difficult because everything was 22 so small, that labels, and we got—I would get the packet when I got to the store, if I 23 can get to the store. Most of the work had to be done at night. Transportation was 24 an issue, but it is mainly seeing it, and as my eyes got worse—I have cataracts, and 25 bright light bothers my eyes.” (AR 47.) Plaintiff testified that he worked a little 26 after 1990, but stopped in 1992 because it was really difficult, he could not see well 27 enough to work, his vision got worse, and he could not drive or carry the materials 28 he needed to do his work. (AR 47, 53.) 1 At the August 28, 2018 hearing, the ALJ stated that “there’s no question that 2 you have an impairment and a simple impairment—I mean a severe impairment, but 3 the—the documentation needed to support the claim, it’s, you know, not sufficient.” 4 (AR 48.) The ALJ noted that there was “insufficient information” regarding the 5 low-vision specialist (AR 45), that “obviously” tests must have been conducted (AR 6 46), and that the records did not include any test records by the low-vision specialist 7 or Dr. Mazer (AR 44–46). The ALJ stated that she would request copies of 8 Plaintiff’s tests because “there must have been some.” (AR 51.) 9 The record contains an August 29, 2018 letter from the Administration to Dr. 10 Mazer requesting all of Plaintiff’s medical records from January 1, 1990 to 11 December 31, 1991. (AR 194–96.) Riverside Medical Clinic responded by letter 12 dated September 5, 2018, stating that they were unable to fulfill the Administration’s 13 request because Plaintiff’s records were destroyed. (AR 193.) 14 In the written decision, the ALJ noted that the record contained only a single 15 page of medical records predating Plaintiff’s last date insured: Dr. Mazer’s note. 16 (AR 14.) The ALJ concluded that Dr. Mazer’s note was insufficient to establish that 17 Plaintiff was disabled prior to the date last insured for three reasons: (1) there was 18 no indication whether the information was self-reported or obtained through 19 objective testing by Dr. Mazer; (2) there was no indication in the record whether 20 Plaintiff ever saw the low vision specialist to whom he was referred; and (3) there 21 was no indication whether Plaintiff’s corrected vision was disabling at the time of 22 his alleged onset of disability, more than eighteen months after the note was written. 23 (AR 14.) The ALJ gave Dr. Wong’s statement no weight because it did “not relate 24 to the period under review.” (AR 14.) 25 26 C. Analysis 27 Given the de minimis standard applied at step two and its purpose to screen 28 out groundless claims, and the ALJ’s heightened duty to develop the record when a 1 claimant is unrepresented, the Court finds that the ALJ’s rejection of Plaintiff’s 2 claim at step two was not supported by substantial evidence. 3 The medical evidence presented by Plaintiff does not support the conclusion 4 that Plaintiff possessed a non-severe impairment unlikely to impact his ability to 5 work. See Webb, 433 F.3d at 687. Dr. Mazer noted that Plaintiff had 20/200 vision 6 in both eyes, aniridia in both eyes, cataracts in both eyes, and hypoplasia in both 7 eyes, and nystagmus, and Dr. Wong stated that Plaintiff was legally blind based 8 upon poor visual acuities (from aniridia) and the presence of cataracts, and that his 9 best corrected vision was 20/400. (See AR 178, 180.) Although this medical 10 evidence does not necessarily mean that Plaintiff would “succeed in proving that he 11 is disabled,” it demonstrates that Plaintiff’s claim was not “groundless” and the 12 ALJ’s sequential analysis should have continued beyond the de minimis threshold of 13 step two. See Webb, 433 F.3d at 688. 14 The ALJ discounted Dr. Mazer’s medical evidence for three reasons and gave 15 no weight to Dr. Wong’s opinion for one reason. (AR 14.) But before rejecting the 16 opinions of Dr. Mazer and Dr. Wong—treating physicians whose opinions were not 17 controverted—the ALJ was required to articulate “clear and convincing reasons that 18 are supported by substantial evidence.” Trevizo, 871 F.3d at 675 (quoting Ryan, 528 19 F.3d at 1198). As discussed below, the ALJ’s reasons were not legally sufficient, 20 particularly in light of the demanding legal standard for rejecting the opinion of 21 treating physicians and an ALJ’s heightened duty to fully develop the record where a 22 claimant is unrepresented. 23 First, the ALJ stated that there was no indication regarding whether the 24 information in Dr. Mazer’s notes was self-reported by Plaintiff or obtained through 25 objective testing by Dr. Mazer. (AR 14.) The Court strains to understand the basis 26 for the ALJ’s assumption that Dr. Mazer’s notes were based on self-reported 27 information from Plaintiff. See, e.g., Hudson v. Saul, No. 19-cv-00337-RMI, 2020 28 U.S. Dist. LEXIS 91628, at *15 (N.D. Cal. May 26, 2020) (stating that ALJ should 1 not have made the “unwarranted assumption” that doctors simply relied on 2 Plaintiff’s self-reported symptoms alone in rendering their diagnoses). Indeed, Dr. 3 Mazer’s notes appear to indicate that she examined Plaintiff—most tellingly, Dr. 4 Mazer’s diagram of Plaintiff’s eyes and the various notes surrounding such diagram, 5 including “cornea clear.” (See AR 180.) Given what at best could be characterized 6 as ambiguous evidence, the ALJ’s duty to develop the record was triggered. See 7 Mayes, 276 F.3d at 459–60. Indeed, the Ninth Circuit has stated that “[i]f the ALJ 8 thought [s]he needed to know the basis of [a doctor’s] opinions in order to evaluate 9 them, [s]he had a duty to conduct an appropriate inquiry, for example, by 10 subpoenaing the physicians or submitting further questions to them.” Smolen, 80 11 F.3d at 1288. 12 Second, the ALJ stated that there was no indication in the record that Plaintiff 13 ever saw the low vision specialist to whom he was referred by Dr. Mazer. (AR 14.) 14 This statement is belied by the January 15, 1991 letter letter from Optometric 15 Center of Fullerton to Riverside Medical Clinic, which confirmed that Plaintiff was 16 seen for a low vision evaluation on October 10 and 17, 1990, by referral from Dr. 17 Mazer. (AR 191.) If anything, this highlights that the record was incomplete, 18 which again triggered the ALJ’s duty to develop the record. See Mayes, 276 F.3d at 19 459–60. 20 Third, the ALJ discounted Dr. Mazer’s opinion because “there [was] no 21 indication in the record . . . whether [Plaintiff’s] corrected vision was disabling at the 22 time of his alleged onset of disability, more than eighteen months after this single 23 note was written.” (AR 14.) This finding overlooks Dr. Mazer’s notes that Plaintiff 24 has had “aniridia since birth,” that he had 20/200 vision in both eyes, and that “[n]o 25 glasses have helped”—in other words, that Plaintiff had a chronic vision impairment 26 for which corrective lenses have not helped. (AR 180.) In addition, without a clear 27 and convincing reason for discounting Plaintiff’s testimony—or any discussion of 28 Plaintiff’s testimony at all—the ALJ’s third reason ignores Plaintiff’s testimony that 1 he worked a little after 1990, but stopped in 1992 because it was really difficult, he 2 could not see well enough to work, his vision got worse, and he could not drive or 3 carry the materials he needed to do his work. (AR 47, 53.) See Smolen, 80 F.3d at 4 1290 (stating that at step two, the ALJ “is required to consider the claimant’s 5 subjective symptoms, such as pain or fatigue, in determining severity”); see Webb, 6 433 F.3d at 687 (“Unless there is affirmative evidence showing that the claimant is 7 malingering, the Commissioner’s reasons for rejecting the claimant’s testimony must 8 be clear and convincing.”) (quoting Reddick, 157 F.3d at 722)). 9 While the Ninth Circuit has held that “[m]edical opinions that predate the 10 alleged onset of disability are of limited relevance,” it also has clarified that such 11 limited relevance is particularly true “where disability is allegedly caused by a 12 discrete event.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th 13 Cir. 2008). Furthermore, the Ninth Circuit has held that “[t]he ALJ must consider 14 all medical opinion evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 15 2008) (emphasis added) (citing 20 C.F.R. § 404.1527(b)). In an unpublished 16 opinion, the Ninth Circuit applied this rule to include medical evidence that predates 17 the alleged onset date of disability. See Williams v. Astrue, 493 F. App’x 866, 868 18 (9th Cir. 2012) (concluding that ALJ erred in failing to consider medical opinions 19 from up to six years predating plaintiff’s alleged onset date). “Thus, while the date 20 of the opinion may be one factor the ALJ can consider in giving an opinion more or 21 less weight, a medical opinion is not insignificant or not probative merely because it 22 is rendered prior to an alleged onset date, particularly in cases where the claimant 23 suffers from an ongoing impairment.” Henderson v. Comm’r, SSA, No. 6:17-cv- 24 00481-HZ, 2018 U.S. Dist. LEXIS 76626, at *26 (D. Or. May 4, 2018). 25 Furthermore, Plaintiff contends that the ALJ should have assessed his 26 disability onset date as September 4, 1990—the date of Dr. Mazer’s note—in which 27 case Dr. Mazer’s medical evidence would not predate Plaintiff’s disability onset date 28 and could not be discounted for this reason. (See Joint Stip. 3–11.) Defendant does 1 not brief this issue, so it could be considered waived. (See generally id. at 11–19.) 2 See Aramark Facility Servs. v. SEIU, Local 1877, 530 F.3d 817, 824 n.2 (9th Cir. 3 2008) (concluding that the failure to adequately brief arguments waives them). As 4 the Court remands this case on other grounds, it is not necessary to address this 5 argument. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we 6 remand the case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] 7 alternative ground for remand.”); see also Augustine ex rel. Ramirez v. Astrue, 536 8 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the 9 other claims plaintiff raises, none of which would provide plaintiff with any further 10 relief than granted, and all of which can be addressed on remand.”). 11 Fourth, the ALJ gave no weight to Dr. Wong’s statement because it “did not 12 provide any statement or evidence relating to the claimant’s impairment prior to the 13 date last insured.” (AR 14.) However, the Ninth Circuit “has specifically held that 14 ‘medical evaluations made after the expiration of a claimant’s insured status are 15 relevant to an evaluation of the preexpiration condition.’” Lester, 81 F.3d at 832 16 (quoting Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988)); Taylor v. Comm’r 17 of SSA, 659 F.3d 1228, 1232 (9th Cir. 2011). If Dr. Mazer’s evidence was credited, 18 viewed in the context of the record as a whole, the evidence from Dr. Wong 19 potentially could indicate the continuation of chronic vision loss and symptoms that 20 predated the date last insured. See Svaldi v. Berryhill, 720 F. App’x 342, 343–44 21 (9th Cir. 2017) (concluding that weight of treating physician’s opinions were not 22 undercut because they were issued significantly after date last insured where the 23 opinions referred back to same chronic condition and symptoms before date last 24 insured). 25 In sum, the ALJ’s conclusion at step two that Plaintiff did not have a severe 26 visual impairment was not clearly established by the medical evidence. The record 27 contained ambiguity and—as stated by the ALJ repeatedly at the hearing (AR 44– 28 48)—was incomplete, thus triggering the ALJ’s duty to fully develop the record. 1 See Mayes, 276 F.3d at 459–60. This duty was heightened because Plaintiff was not 2 represented. See Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 1992) (“[W]here 3 the claimant is not represented, it is incumbent upon the ALJ to scrupulously and 4 conscientiously probe into, inquire of, and explore for all the relevant facts.”). The 5 record in this case was inadequate to support a cursory rejection of Plaintiff’s claim 6 at a preliminary stage of the analysis. 7 The error was not harmless. An error is harmless if “it is inconsequential to 8 the ultimate nondisability determination,” or “so long as there remains substantial 9 evidence supporting the ALJ’s decision and the error does not negate the validity of 10 the ALJ’s ultimate conclusion.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 11 2012) (citations and quotation marks omitted). Here, if the ALJ had more fully 12 developed the record and credited Plaintiff’s treating physicians’ records, she 13 reasonably could have determined that Plaintiff suffered from a severe physical 14 impairment and reached a different disability determination. Thus, the Court is 15 unable to conclude that the ALJ’s errors were clearly harmless. Consequently, 16 reversal is warranted. See Marsh v. Colvin, 792 F.3d 1170, 1172–74 (9th Cir. 2015) 17 (reversing finding of harmless error where reviewing court could not confidently 18 conclude that ALJ’s failure to mention or provide specific and legitimate reasons 19 supported by substantial evidence for rejecting treating physicians’ medical opinions 20 and records was harmless). 21 22 D. Remand for Further Proceedings 23 Ninth Circuit case law “precludes a district court from remanding a case for 24 an award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 25 808 F.3d 403, 407 (9th Cir. 2015). “The district court must first determine that the 26 ALJ made a legal error, such as failing to provide legally sufficient reasons for 27 rejecting evidence.” Id. “If the court finds such an error, it must next review the 28 record as a whole and determine whether it is fully developed, is free from conflicts 1 || and ambiguities, and all essential factual issues have been resolved.” /d. (citation 2 || and internal quotation marks omitted). 3 Although the Court has found legal error as discussed above, the record on the 4 || whole is not fully developed, and essential factual issues remain outstanding. The 5 || discounted evidence of Plaintiff's visual impairments raises factual conflicts about 6 || Plaintiff's level of functioning that “should be resolved through further proceedings 7 || on an open record before a proper disability determination can be made by the ALJ 8 || in the first instance.” See Brown-Hunter v. Colvin, 806 F.3d 487, 496 (9th Cir. 9 || 2015); see also Treichler, 775 F.3d at 1101 (“Where there is conflicting evidence, 10 || and not all essential factual issues have been resolved, a remand for an award of 11 || benefits is inappropriate.”’); Strauss v. Comm’r of the Social Sec. Admin., 635 F.3d 12 || 1135, 1138 (9th Cir. 2011) (holding same where the record does not clearly 13 || demonstrate the claimant is disabled within the meaning of the Social Security Act). 14 Therefore, based on its review and consideration of the entire record, the 15 || Court has concluded on balance that a remand for further administrative proceeding: 16 || pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. It is not the 17 || Court’s intent to limit the scope of the remand. 18 19] Vv. ORDER 20 The Court ORDERS that judgment be entered reversing the decision of the 21 || Commissioner and remanding this mater for further administrative proceedings. 22 IT IS SO ORDERED. 23 24 || DATED: December 17, 2020 Lye 5 MARIA A. AUDERO UNITED STATES MAGISTRATE JUDGE

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