1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CARRIE N., ) Case No. ED CV 19-2129-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) ANDREW M. SAUL, Commissioner of ) 15 Social Security Administration, ) ) 16 Defendant. ) ) 17 ) 18 19 I. 20 INTRODUCTION 21 On November 6, 2019, plaintiff Carrie N. filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking review of a denial of a period of disability and 24 disability insurance benefits (“DIB”). The parties have fully briefed the issues in 25 dispute, and the court deems the matter suitable for adjudication without oral 26 argument. 27 Plaintiff presents two disputed issues for decision: (1) whether the 28 Administrative Law Judge (“ALJ”) failed to properly consider the evidence in the 1 record in assessing plaintiff’s residual functional capacity (“RFC”); and (2) 2 whether the ALJ improperly discounted plaintiff’s testimony. Plaintiff’s 3 Memorandum in Support of Complaint (“P. Mem.”) at 3-15; see Defendant’s 4 Memorandum in Support of Answer (“D. Mem.”) at 1-9. 5 Having carefully studied the parties’ memoranda, the Administrative Record 6 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 7 the ALJ did not properly evaluate plaintiff’s testimony, and also erred in 8 determining plaintiff’s RFC. The court therefore reverses the decision of the 9 Commissioner denying benefits and remands the matter for further administrative 10 action consistent with this decision. 11 II. 12 FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff, who was 54 years old on the alleged disability onset date, is a high 14 school graduate with some college. AR at 32, 48. Plaintiff has past relevant work 15 in a composite job consisting of customer complaint clerk, customer service 16 supervisor, appointment clerk, and data entry clerk. AR at 42. 17 On July 22, 2016, plaintiff filed an application for a period of disability and 18 DIB, claiming she suffered from postural tachycardia syndrome, headaches, 19 fainting episodes, and nausea. AR at 48-49. Plaintiff’s application was denied 20 initially and on reconsideration. AR at 58, 69. 21 Plaintiff requested a hearing, which the assigned ALJ held on August 15, 22 2018. AR at 30. Plaintiff, represented by counsel, appeared and testified at the 23 hearing. AR at 32-42. The ALJ also heard testimony from Mary Jesko, a 24 vocational expert. AR at 40-46. The ALJ denied plaintiff’s claim for benefits on 25 October 24, 2018. AR at 15-23. 26 Applying the well-established five-step sequential evaluation process, the 27 ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity 28 1 since February 1, 2016, the alleged onset date. AR at 17. 2 At step two, the ALJ found plaintiff suffered from the following severe 3 impairments: migraines; left leg impairment; postural orthostatic tachycardia 4 syndrome (“POTS”); asthma and chronic asthmatic bronchitis; episodes of syncope 5 and near-syncope; and generalized anxiety disorder (“GAD”). Id. 6 At step three, the ALJ found plaintiff’s impairments, whether individually or 7 in combination, did not meet or medically equal one of the listed impairments set 8 forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. 9 The ALJ then assessed plaintiff’s RFC,1 and determined plaintiff had the 10 RFC to perform a full range of work at all exertional levels, but with the 11 nonexertional limitations that she: requires the freedom to sit at will when either 12 standing or walking, without being off-task; can occasionally climb stairs and 13 ramps; can never climb ladders or scaffolds; and can occasionally balance, stoop, 14 kneel, crouch, and crawl. AR at 19. The ALJ further precluded plaintiff from: 15 exposure to heavy vibrations, unprotected heights, and workplace hazards; 16 operating a motor vehicle commercially; exposure to extreme temperatures; 17 exposure to more than moderate noise levels; concentrated exposure to dust, odors, 18 fumes, and pulmonary irritants; exposure to open bodies of water such as 19 swimming pools and lakes; and more than occasional exposure to direct sunlight. 20 Id. The ALJ determined plaintiff would be best suited for an occupation without 21 high production quotas, and not in a fast-paced work environment. Id. 22 The ALJ found, at step four, that plaintiff was able to perform past relevant 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 1 work in a composite position consisting of the sedentary occupations of customer 2 complaint clerk, supervisor, appointment clerk, and data entry clerk. AR at 23. 3 Accordingly, the ALJ concluded plaintiff was not under a disability, as defined in 4 the Social Security Act, at any time from February 1, 2016 through the date of 5 decision. Id. 6 Plaintiff filed a timely request for review, which the Appeals Council 7 denied. AR at 1-3. Accordingly, the ALJ’s decision stands as the final decision of 8 the Commissioner. 9 III. 10 STANDARD OF REVIEW 11 This court is empowered to review decisions by the Commissioner to deny 12 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 13 Administration must be upheld if they are free of legal error and supported by 14 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 15 (as amended). But if the court determines the ALJ’s findings are based on legal 16 error or are not supported by substantial evidence in the record, the court may 17 reject the findings and set aside the decision to deny benefits. Aukland v. 18 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 19 1144, 1147 (9th Cir. 2001). 20 “Substantial evidence is more than a mere scintilla, but less than a 21 preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial 22 evidence is such “relevant evidence which a reasonable person might accept as 23 adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 24 1998) (citations omitted); Mayes, 276 F.3d at 459. To determine whether 25 substantial evidence supports the ALJ’s finding, the reviewing court must review 26 the administrative record as a whole, “weighing both the evidence that supports 27 and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 28 1 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific 2 quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (internal quotation 3 marks omitted). If the evidence can reasonably support either affirming or 4 reversing the ALJ’s decision, the reviewing court “may not substitute its judgment 5 for that of the ALJ.” Id. (internal quotation marks omitted). 6 IV. 7 DISCUSSION 8 A. The ALJ Failed to Properly Evaluate Plaintiff’s Testimony 9 Plaintiff argues the ALJ essentially ignored her subjective testimony or, at 10 best, failed to consider it in any meaningful way. P. Mem. at 11. Plaintiff 11 contends the ALJ’s reasons for discounting her testimony – that it was inconsistent 12 with the evidence and lacked supporting objective medical evidence – were not 13 proper reasons under the law. See id. at 11-12. 14 In response, defendant claims the ALJ had several reasons for discounting 15 plaintiff’s testimony, including a lack of objective evidence establishing the 16 frequency and severity of her symptoms, no supporting evidence regarding 17 physical limitations, the conservative nature of her treatment, and the effectiveness 18 of her medications. D. Mem. at 8. Defendant argues these reasons were sufficient 19 to conclude plaintiff’s subjective allegations about the limiting effects of her 20 impairments did not warrant additional limitations to the RFC. Id. 21 The court looks to Social Security Ruling (“SSR”) 16-3p for guidance on 22 evaluating plaintiff’s alleged symptoms. SSR 16-3p rescinded and superseded 23 SSR 96-7p and applies to decisions made on or after March 28, 2016. SSR 16-3p, 24 2017 WL 5180304, at *1 (Oct. 25, 2017). “Although SSRs do not have the same 25 force and effect as statutes or regulations, they are binding on all components of 26 the Social Security Administration.” Id. (citing 20 C.F.R. § 402.35(b)(1)). 27 In adopting SSR 16-3p, the Social Security Administration sought to “clarify 28 1 that subjective symptom evaluation is not an examination of an individual’s 2 character.” Id. at *2. 3 [SSR 16-3p] makes clear what our precedent already required: that 4 assessments of an individual’s testimony by an ALJ are designed to 5 evaluate the intensity and persistence of symptoms after the ALJ finds 6 that the individual has a medically determinable impairment(s) that 7 could reasonably be expected to produce those symptoms, and not to 8 delve into wide-ranging scrutiny of the claimant’s character and 9 apparent truthfulness. 10 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (internal quotation 11 marks and alterations omitted). 12 To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step 13 analysis. Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) (quoting 14 Trevizo, 871 F.3d at 678). First, the ALJ must determine whether the claimant 15 produced objective medical evidence of an underlying impairment that could 16 reasonably be expected to produce the symptoms alleged. Id. Second, if the 17 claimant satisfies the first step, and there is no evidence of malingering, the ALJ 18 must evaluate the intensity and persistence of the claimant’s symptoms and 19 determine the extent to which they limit her ability to perform work-related 20 activities. Id. In assessing intensity and persistence, the ALJ may consider: a 21 claimant’s daily activities; the location, duration, frequency, and intensity of the 22 symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, 23 and side effects of medication taken to alleviate the symptoms; other treatment 24 received; other measures used to relieve the symptoms; and other factors 25 concerning the claimant’s functional limitations and restrictions due to the 26 symptoms. Id. (citing 20 C.F.R. § 416.929; SSR 16-3p, 2017 WL 5180304, at *4; 27 Smolen v. Chater, 80 F.3d 1273, 1283-84 & n.8 (9th Cir. 1996)). If the ALJ rejects 28 1 the claimant’s subjective symptom statements at step two, the ALJ must provide 2 “specific, clear, and convincing” reasons, supported by substantial evidence in the 3 record, for doing so. Id. at 921, 929. 4 At the first step, the ALJ found plaintiff’s medically determinable 5 impairments could reasonably be expected to cause the symptoms alleged. AR at 6 21. At the second step, the ALJ discounted plaintiff’s testimony concerning the 7 intensity, persistence, and limiting effects of her symptoms as not entirely 8 consistent with the evidence in the record. AR at 22. Because plaintiff cleared 9 step one and the ALJ found no evidence of malingering, the ALJ’s reasons for 10 discounting plaintiff’s testimony had to be specific, clear, convincing, and 11 supported by substantial evidence. 12 The ALJ first purported to have found inconsistencies between plaintiff’s 13 testimony and the record, but even construing the ALJ’s decision generously, she 14 at most listed only one such consistency. Namely, the ALJ noted plaintiff worked 15 for many years after the onset of her migraine headaches.2 See AR at 22. But this 16 reason is far from specific, clear, and convincing. The ALJ did not specify what 17 parts of plaintiff’s testimony are inconsistent, and the court does not find any. See 18 AR at 34-35 (plaintiff’s testimony about her migraines). Nothing in plaintiff’s 19 testimony is inconsistent with the fact that plaintiff continued working for years 20 after the onset of her severe headaches in 1981 (AR at 182). In fact, plaintiff did 21 22 2 In fact, it is unclear whether the ALJ actually relied on this reason given her 23 conclusion that plaintiff’s statements “are inconsistent because there is no objective 24 evidence” of her alleged limitations. See AR at 22. Those are two separate concepts. Just because testimony lacks objective, supporting evidence does not 25 necessarily mean it is inconsistent with the record. Indeed, it is for this reason that 26 a lack of objective medical evidence by itself is not a sufficient basis to discount a claimant’s testimony. Trevizo, 871 F.3d at 679; Bruce v. Astrue, 557 F.3d 1113, 27 1116 (9th Cir. 2009) (lay testimony is particularly important where the objective 28 medical evidence does not support alleged symptoms). 1 not stop working because of her migraines but rather because she kept fainting 2 while at work. See AR at 33-34. 3 Moreover, focusing on the onset of plaintiff’s migraines improperly assumes 4 that their intensity, persistence, and limiting effects have remained the same since 5 1981. In fact, plaintiff reported to her physician in March of 2016 that the severity 6 of her migraines has fluctuated over the years. See AR at 1620; Garrison v. 7 Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (“Cycles of improvement and 8 debilitating symptoms are a common occurrence, and in such circumstances it is 9 error for an ALJ to pick out a few isolated instances of improvement over a period 10 of months or years and to treat them as a basis for concluding a claimant is capable 11 of working.” (citation omitted)). And at the hearing, plaintiff testified her 12 migraines are triggered more often now due to her anxiety, and her flare ups can 13 last up to a couple of days. See AR at 34-35. For these reasons, the ALJ’s vague 14 reference to inconsistencies and later reference to plaintiff’s long history of 15 working since the onset of her migraines was not a specific, clear, and convincing 16 reason to discount plaintiff’s testimony. 17 Aside from that unconvincing reason, the bulk of the ALJ’s analysis of 18 plaintiff’s testimony is spent listing examples of how her statements lack objective, 19 supporting evidence. See AR at 22. But ALJs “may not disregard a claimant’s 20 testimony solely because it is not substantiated affirmatively by objective medical 21 evidence.” Trevizo, 871 F.3d at 679 (internal quotation marks omitted). Thus, 22 absent additional, proper reasons, the ALJ’s discounting of plaintiff’s testimony 23 was erroneous. 24 In its memorandum, defendant lists several other reasons for discounting 25 plaintiff’s testimony. For instance, defendant argues there is evidence of 26 conservative treatment in the record with respect to plaintiff’s anxiety and panic 27 attacks. See D. Mem. at 6. Defendant also raises a discrepancy between plaintiff’s 28 1 testimony and the medical evidence concerning the duration of her dizziness 2 episodes. See id. But the ALJ did not actually rely on any of these reasons in her 3 evaluation of plaintiff’s testimony. It is well-established that the court is 4 “constrained to review the reasons the ALJ asserts.” Burrell v. Colvin, 775 F.3d 5 1133, 1141 (9th Cir. 2014) (internal quotation marks omitted). 6 Accordingly, the court concludes the ALJ failed to provide specific, clear, 7 and convincing reasons, supported by substantial evidence, for discounting 8 plaintiff’s testimony. 9 B. The ALJ’s RFC Determination Did Not Properly Account for All the 10 Evidence of Record 11 Plaintiff argues the ALJ failed to properly consider both objective and 12 subjective evidence in assessing plaintiff’s RFC. P. Mem. at 3. Plaintiff 13 complains the ALJ compressed 1,400 pages of medical evidence into two pages of 14 her decision by cherry picking supportive medical records. Id. at 4. In doing so, 15 plaintiff argues the ALJ failed to properly consider medical evidence documenting 16 her recurrent severe migraine headaches, syncope episodes, weakness in the lower 17 extremities, buckling of the knees, and mental impairments such as her GAD. See 18 id. at 10. Plaintiff further contends the ALJ erred in concluding plaintiff has no 19 exertional limitations despite finding multiple severe physical impairments. See id. 20 at 3-4. Ultimately, Plaintiff claims each of her impairments prevents her from 21 working the combination of occupations the ALJ identified in step four. See id. at 22 10. Specifically, plaintiff argues it would be impossible for her to endure full-time 23 work, as evidenced by her failed attempt to return to work in 2016. See id. 24 Defendant counters that the fact the ALJ determined some of plaintiff’s 25 impairments were severe does not mean they must result in RFC limitations. See 26 D. Mem. at 1. Defendant also argues at least some of plaintiff’s impairments are 27 adequately controlled with medication, such as her asthma and migraines, and 28 1 points to the opinion of the state agency consultant as support for the ALJ’s RFC 2 determination. See id. at 1-3. Finally, defendant contends the ALJ considered all 3 of the evidence, even if she did not specifically discussed it in her decision. See id. 4 at 4-5. 5 The court already found the ALJ failed to properly consider plaintiff’s 6 testimony. This error alone warrants remand for the ALJ to reassess plaintiff’s 7 RFC. But the court also here considers whether the ALJ adequately accounted for 8 the medical evidence. 9 1. Effect of Step Two Finding 10 As an initial matter, the court rejects plaintiff’s argument that the ALJ’s 11 finding of a severe impairment at step two must necessarily result in some sort of 12 limitation for purposes of determining the RFC. Step two is a “de minimis 13 screening device used to dispose of groundless claims.” Webb, 433 F.3d at 687 14 (internal quotation marks and alteration omitted). “[A] finding that a[n 15 impairment] is severe at step two only raises a prima facie case of a disability.” 16 Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (citation omitted). The 17 proper question is whether substantial evidence supports the ALJ’s RFC 18 determination. 19 2. The ALJ’s RFC Determination 20 RFC is what one can “still do despite [his or her] limitations.” 20 C.F.R. 21 § 416.945(a)(1)-(2). The ALJ reaches an RFC determination by reviewing and 22 considering all of the relevant evidence, including non-severe impairments. Id. 23 When the record is ambiguous, the Commissioner has a duty to develop the record. 24 See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005); see also Mayes, 276 25 F.3d at 459-60 (ALJ has a duty to develop the record further only “when there is 26 ambiguous evidence or when the record is inadequate to allow for proper 27 evaluation of the evidence”). This may include retaining a medical expert or 28 1 ordering a consultative examination. 20 C.F.R. § 404.1519a(a). 2 In assessing plaintiff’s RFC here, the ALJ analyzed the medical opinions of 3 two state agency physicians and several pieces of objective and subjective medical 4 evidence. 5 a. Medical Evidence 6 First, as to plaintiff’s migraine headaches, the ALJ noted that in March 2016, 7 plaintiff’s head CT scan was normal. AR at 20 (citing AR at 1620). Moreover, in 8 July 2017, plaintiff underwent a 24-hour EEG, which showed results in the “broad 9 normal range.” Id. (citing AR at 1294). As previously discussed, the ALJ appears 10 to have concluded that plaintiff’s migraines were not severely limiting due to the 11 fact she worked for many years after the onset of severe headaches. See AR at 22. 12 Second, concerning plaintiff’s near-syncope and syncope episodes, the ALJ 13 acknowledged plaintiff’s POTS diagnosis and her positive test for orthostatic 14 hypotension. AR at 20 (citing AR at 1620). Additionally, the ALJ noted that in 15 March 2016, plaintiff had normal head and angio CT scans. Id. In January 2017, 16 plaintiff reported fainting spells whenever she stood or sat for about an hour. Id. 17 (citing AR at 639). 18 The ALJ noted at least some of plaintiff’s syncope and near-syncope events 19 are associated with and possibly triggered by anxiety, and are sometimes treated 20 with anti-anxiety medications. AR at 18, 20 (citing AR at 785-87, 843). For 21 example, in February 2017, plaintiff had an episode of near-syncope in the 22 presence of ER doctor Scott Walker. AR at 20, 785. Because plaintiff’s heart rate 23 and blood pressure remained stable, Dr. Walker determined the episode was not 24 consistent with POTS or dangerous arrhythmia. AR at 20, 785-87. Dr. Walker 25 treated plaintiff with Ativan, an anti-anxiety medication, and discharged her, 26 noting her clinical scenario did not suggest a serious etiology. See id. The 27 treatment notes for that visit show plaintiff appeared anxious, alert, oriented to 28 1 person, place, and time, and had a full range of motion. AR at 20 (citing AR at 2 785-87). 3 A few days later, plaintiff once again presented to the ER with episodes of 4 “generalized shaking of her body followed by slumping over” with no hypotension 5 or tachycardia. Id. (citing AR at 843). In July 2017, plaintiff underwent a 24-hour 6 EEG, which showed results in the “broad normal range.” Id. (citing AR at 1294). 7 Third, with respect to plaintiff’s mental impairments, the ALJ accepted 8 plaintiff has been diagnosed with GAD. AR at 18 (citing AR at 1235). The ALJ 9 reviewed psychotherapy notes showing approximately weekly treatment in March 10 and April of 2017. Id. During those therapy sessions, plaintiff reported panic 11 attacks and anxiety, but was otherwise cooperative and showed normal speech, 12 intact attention and concentration, affect, thought form and content, fund of 13 information, abstraction and generalization, recent and remote memory, insight and 14 judgment, alertness, and orientation to person, place, time, and situation. See id. 15 (citing AR at 416-37). 16 At a November 2017 follow-up appointment, plaintiff appeared to be 17 anxious, depressed, and agitated. Id. (citing AR at 1521). Notwithstanding, she 18 again showed normal memory and judgment. Id. 19 Fourth, as to plaintiff’s problems with her extremities, including buckling of 20 her knees, the ALJ noted that in December 2016, plaintiff exhibited a normal gait, 21 range of motion in her back, and negative straight leg raise testing. AR at 20 22 (citing AR at 550). In January 2017, plaintiff reported she could climb at least one 23 flight of stairs and walk at least two blocks. Id. (citing AR at 639). 24 In May 2018, plaintiff exhibited buckling and an astasia-abasia gait. AR at 25 20, 1625. The treating doctor noted plaintiff’s pain was consistent with 26 lumbosacral radiculopathy starting in April 2018. See AR at 20, 1625, 1680. 27 Plaintiff reported she began using a single-point cane in approximately January 28 1 2018. AR at 20 (citing AR at 1625, 1680). Her doctor also prescribed a 12-week 2 course of physical therapy to decrease her symptoms and limitations, but there is 3 no evidence she completed the therapy, or that if she did it objectively reduced her 4 limitations. See id. (citing AR at 1680). The ALJ did not find any objective 5 imaging or other studies showing radiculopathy or any impairment of the 6 lumbosacral spine. Id. 7 b. Medical Opinions 8 The ALJ reviewed the opinions of two state agency physicians, Dr. K. Sin 9 and Dr. H. Vu. Dr. Sin’s opinion is dated August 8, 2016 (AR at 48-58), and Dr. 10 Vu’s is from September 27, 2016 (AR at 59-69). Thus, neither physician reviewed 11 all of the evidence in the record at the time of the hearing, including most of the 12 medical evidence cited by the ALJ in support of her RFC determination. Compare 13 AR at 48-69 (assessments completed in 2016) with AR at 18-22 (citing mostly 14 medical evidence from 2017 and 2018). Nevertheless, the ALJ gave great weight 15 to Dr. Vu’s opinion and little weight to Dr. Sin’s opinion. AR at 22. 16 Dr. Vu opined plaintiff had no exertional limitations that would interfere 17 with her ability to lift, carry, push, pull, or perform other exertional activities. See 18 AR at 22, 64. Further, Dr. Vu opined plaintiff could perform occasional postural 19 activities but had to avoid climbing ladders and scaffolds, extreme temperatures, 20 noise, vibration, pulmonary irritants, and hazards due to her postural tachycardia, 21 migraines, and risk of syncope. See AR at 22, 64-66. The ALJ concluded that Dr. 22 Vu’s opinion was consistent with the evidence, which included no imaging or other 23 objective evidence of a spine or physical impairment. AR at 22. 24 Dr. Sin’s opinion was similar in some respects, except it concluded plaintiff 25 could only work at the light exertional level. AR at 22, 54-55. Dr. Sin also 26 suggested less environmental limitations than Dr. Vu. AR at 22, 55. The ALJ 27 determined Dr. Sin failed to explain why plaintiff’s impairments limited her to 28 1 light work, especially given that the medical evidence did not support exertional 2 limitations. AR at 22. The ALJ also concluded Dr. Sin did not sufficiently support 3 the finding of less environmental limitations. Id. 4 3. The ALJ Failed to Properly Consider Later Medical Evidence 5 The only medical opinions in this case were provided by physicians who did 6 not review approximately two years of medical evidence. An ALJ may not act as 7 her own medical expert since she is “simply not qualified to interpret raw medical 8 data in functional terms.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); see 9 also Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (ALJ should not 10 make her “own exploration and assessment” as to a claimant’s impairments); 11 Miller v. Astrue, 695 F. Supp. 2d 1042, 1048 (C.D. Cal. 2010) (it is improper for 12 the ALJ to act as the medical expert); Padilla v. Astrue, 541 F. Supp. 2d 1102, 13 1106 (C.D. Cal. 2008) (ALJ is not qualified to extrapolate functional limitations 14 from raw medical data). But that is not what the ALJ did here. Instead, she relied 15 on Dr. Vu’s opinion. That Dr. Vu rendered his opinion before all the medical 16 evidence ultimately in the record existed is not unusual. See Owen v. Saul, 808 17 Fed. App’x 421, 423 (9th Cir. 2020) (no error in giving weight to opinions of state 18 agency physicians who did not review later evidence; “there is always some time 19 lapse between a consultant’s report and the ALJ hearing and decision”). 20 Nonetheless, in this case there appear to have been significant changes in 21 plaintiff’s condition after Dr. Vu’s review of the medical records that existed in 22 September 2016. Whether those changes were enough to warrant a change in 23 plaintiff’s RFC may be disputed, but at a minimum those changes made the ALJ’s 24 reliance on Dr. Vu’s opinion in the absence of any later opinion questionable. The 25 absence of a complete medical opinion is not necessarily fatal, but the RFC 26 determination still must be supported by substantial evidence. See Tackett v. Apfel, 27 180 F.3d 1094, 1102-03 (9th Cir. 1999) (ALJ must provide evidentiary support for 28 1 his interpretation of medical evidence). That is not the case here. 2 To begin, the medical record shows, and the ALJ seemed to agree, that 3 plaintiff’s GAD diagnosis may be to blame for many of plaintiff’s symptoms, 4 including her episodes of near-syncope and syncope. See, e.g., AR at 20, 785-87, 5 843. Yet there is no medical opinion in the record concerning that diagnosis. See 6 Afanador v. Barnhart, 2002 WL 31497570, at *4 (N.D. Cal. Nov. 6, 2002) (ALJ 7 failed to develop the record when she did not obtain a medical opinion concerning 8 claimant’s specific diagnosis). 9 Moreover, neither of the state agency physicians had an opportunity to 10 review all of the medical evidence concerning plaintiff’s severe left leg 11 impairment. See AR at 17. Although that condition appeared to be mild in 2016 12 and 2017 (see AR at 550, 639), by 2018 plaintiff was experiencing multiple 13 instances of buckling and began to use a cane (see AR at 1625, 1680). See 14 Garrison, 759 F.3d at 1017 (error for ALJ to focus on few isolated instances of 15 mild impairment given that cycles of improvement and debilitating symptoms are 16 common). The medical evidence also showed progression in plaintiff’s migraines 17 and syncope episodes in 2017 and 2018. 18 Defendant is correct that ALJs do not have to discuss each piece of evidence 19 considered. See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). But 20 they do have to discuss significant and probative evidence. See id; Vincent v. 21 Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). The ALJ failed to discuss 22 seemingly significant and probative objective medical evidence here. For example, 23 plaintiff notes one of her treating physicians opined that an MRI of her brain would 24 not be helpful since POTS typically has no structural abnormalities. P. Mem. at 6 25 (citing AR at 294). Although the ALJ did not address this evidence, it may help 26 explain why, as the ALJ noted, plaintiff’s head CT scan was normal. The ALJ also 27 failed to consider potentially probative evidence showing plaintiff was having 28 1 trouble finding an effective medicine to treat her migraines. AR at 1534 (treatment 2 with Toradol injection), 1656 (treatment with Solumedrol and Prednisone); 3 Trevizo, 871 F.3d at 679 (error to dismiss impairment as not severe where medical 4 record showed failure to respond to aggressive treatments). 5 In short, in assessing plaintiff’s RFC, the ALJ failed to adequately consider 6 some of the later medical evidence and further develop the record as needed. In 7 addition, the court already found the ALJ erred in discounting plaintiff’s testimony. 8 Consequently, the ALJ must reassess plaintiff’s RFC on remand. 9 V. 10 REMAND IS APPROPRIATE 11 The decision whether to remand for further proceedings or reverse and 12 award benefits is within the discretion of the district court. McAllister v. Sullivan, 13 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 14 discretion to direct an immediate award of benefits where: “(1) the record has been 15 fully developed and further administrative proceedings would serve no useful 16 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 17 evidence, whether claimant testimony or medical opinions; and (3) if the 18 improperly discredited evidence were credited as true, the ALJ would be required 19 to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020 (setting 20 forth three-part credit-as-true standard for remanding with instructions to calculate 21 and award benefits). But where there are outstanding issues that must be resolved 22 before a determination can be made, or it is not clear from the record that the ALJ 23 would be required to find a plaintiff disabled if all the evidence were properly 24 evaluated, remand for further proceedings is appropriate. See Benecke v. Barnhart, 25 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 26 (9th Cir. 2000). In addition, the court must “remand for further proceedings when, 27 even though all conditions of the credit-as-true rule are satisfied, an evaluation of 28 1 | the record as a whole creates serious doubt that a claimant is, in fact, disabled.” 2 | Garrison, 759 F.3d at 1021. 3 Here, remand is required to fully develop the record. On remand, the ALJ 4 | shall reconsider plaintiff's testimony and either accept it or provide specific, clear, 5 || and convincing reasons supported by substantial evidence for rejecting it. The ALJ 6 || shall also reconsider all the medical evidence of record, and if necessary shall 7 || further develop the record by retaining a consultative examiner or medical expert. 8 || The ALJ shall then proceed through steps two, three, four, and, if necessary, five to 9 || determine what work, if any, plaintiff was capable of performing. 10 VI. 11 CONCLUSION 12 IT IS THEREFORE ORDERED that Judgment shall be entered 13 | REVERSING the decision of the Commissioner denying benefits, and 14 || REMANDING the matter to the Commissioner for further administrative action 15 consistent with this decision. 16 17 | DATED: March 31, 2021 RP SHERI PYM 20 United States Magistrate Judge 21 22 23 24 25 26 27 28 17