1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JAYNE F., Case No. 3:23-cv-5716-TLF 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS 9 SECURITY, 10 Defendant. 11 12 Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of 13 defendant’s denial of plaintiff’s application for Disability Insurance Benefits (DIB). The 14 parties have consented to have this matter heard by the undersigned Magistrate Judge. 15 Dkt. 2. Plaintiff challenges the Commissioner’s decision finding her not disabled. Dkt. 4, 16 Complaint. 17 A. Procedural History 18 Plaintiff filed her application for DIB on November 30, 2020, alleging an onset 19 date of November 22, 2020. AR 17, 286–87. For the purposes of her DIB eligibility, her 20 date last insured is December 31, 2024. AR 17. After her application was denied initially 21 and upon reconsideration (AR 127, 173), hearings were held before the ALJ on January 22 31, 2023 (AR 75–105), and April 7, 2023 (AR 106–26). 23 The ALJ issued a decision on May 25, 2023, finding plaintiff not disabled. AR 14– 24 35. The ALJ found plaintiff had the following severe impairments: post-traumatic stress 1 disorder (PTSD); depressive disorder; anxiety disorder; arthritis; obesity; lupus; cubital 2 tunnel syndrome; carpal tunnel syndrome; stenosis; radiculopathy; headaches; 3 degenerative disc disease; degenerative joint disease; and fibromyalgia. AR 19. The 4 ALJ found plaintiff had the Residual Functional Capacity (RFC)
5 to perform sedentary work, as defined in 20 CFR 404.1567(a), that does not require climbing of ladders, ropes, or scaffolds; that does not require more than 6 occasional balancing, stooping, kneeling, crouching, crawling, or climbing of ramps or stairs; that does not require more than frequent handling or fingering; 7 that does not require concentrated exposure to hazards or pulmonary irritants; that allows a break after 2 hours of work; and that involves predictable work 8 settings and processes.
9 AR 22. Based on hypotheticals the ALJ posed to the Vocational Expert (VE) at the 10 hearing, the ALJ concluded that plaintiff could not perform her past work but could work 11 as an appointment clerk, reception clerk, or telephone solicitor. AR 28. 12 B. Analysis 13 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's 14 denial of Social Security benefits if the ALJ's findings are based on legal error or not 15 supported by substantial evidence in the record. Revels v. Berryhill, 874 F.3d 648, 654 16 (9th Cir. 2017) (internal citations omitted). Substantial evidence is “such relevant 17 evidence as a reasonable mind might accept as adequate to support a conclusion.” 18 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). The Court 19 must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 20 1009 (9th Cir. 2014). 21 Where the evidence would reasonably support affirming or reversing the decision 22 of the ALJ, the Court may not substitute its judgment for Commissioner's. Burch v. 23 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The Court must weigh both the evidence 24 1 that supports and evidence that does not support the ALJ's conclusion. Id. The Court 2 may not affirm the decision of the ALJ for a reason upon which the ALJ did not rely. Id. 3 Rather, only the reasons identified by the ALJ are considered in the scope of the Court's 4 review.
5 1. Medical Opinions 6 Plaintiff argues the ALJ failed to adequately consider the medical opinions of PA 7 Lynette McLagan and Terilee Wingate, Ph.D. Dkt. 9 at 3–5. 8 Under the regulations applicable to claims, like plaintiff’s, filed on or after March 9 27, 2017, an ALJ need not “defer or give any specific evidentiary weight . . . to any 10 medical opinion(s) . . . including those from [the claimant’s] medical sources.” 20 C.F.R. 11 § 404.1520c(a). Rather, the ALJ must explain how he or she considered the factors of 12 supportability and consistency in evaluating the medical opinions. Id. § 404.1520c(a)– 13 (b). “[A]n ALJ cannot reject an examining or treating doctor’s opinion as unsupported or 14 inconsistent without providing an explanation supported by substantial evidence.”
15 Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). 16 A. PA McLagan 17 Consulting psychological examiner PA McLagan submitted an evaluation of 18 plaintiff in April 2021. AR 467–75. She opined plaintiff had fair limitations—defined as 19 “more than a slight limitation” but one in which a claimant is “still able to function 20 satisfactorily” in the given area—in several of her abilities, including in her ability to 21 interact with coworkers, supervisors, and the public, and adapt to the usual stresses of 22 a workplace environment. AR 474. She also wrote that plaintiff’s overall prognosis was 23
24 1 “poor,” and that “she would most likely struggle with the usual stressors of a typical 2 workplace environment.” AR 474. 3 The ALJ found PA McLagan’s opinion persuasive. AR 26. He noted that “any 4 difficulties that the claimant may have with concentration, persistence, pace, and
5 adaptation are addressed with limitations in timing of breaks, as well as predictability of 6 settings and processes.” Id. 7 Plaintiff argues the ALJ failed to adequately address PA McLagan’s statement 8 that plaintiff’s prognosis was “poor” and that she would “struggle with the usual 9 stressors of a typical workplace environment.” Dkt. 9 at 4. 10 The Court disagrees. PA McLagan’s statement that plaintiff’s prognosis was 11 “poor” was not an opined limitation the ALJ was required to discuss. See 20 C.F.R. § 12 1513(a)(3) (a “prognosis” is “other medical evidence” and not part of a “medical 13 opinion”). PA McLagan’s statement that plaintiff would struggle with the usual stressors 14 of a work environment did not specify a precise limitation, and PA McLagan indicated
15 elsewhere plaintiff’s ability to “adapt to the usual stresses of a workplace environment” 16 was “fair” and thus that plaintiff was “able to function satisfactorily” in that area. AR 474. 17 See Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (certain parts of opinion were 18 “not useful because they failed to specify [the plaintiff's] functional limits” and thus “the 19 ALJ could reasonably conclude these characterizations were inadequate for 20 determining RFC”). Because the RFC “is the most [a claimant] can still do despite [her] 21 limitations,” 20 C.F.R. § 1545(a)(1), PA McLagan’s opinion that plaintiff was able to 22 “satisfactorily” adapt to the stresses of the workplace environment did not require any 23 additional limitations in the RFC.
24 1 B. Dr. Wingate 2 Consulting psychologist Dr. Wingate completed an evaluation of plaintiff in 3 October 2022. AR 1713–17. She opined plaintiff had several moderate and marked 4 limitations, but that these limitations would last only six to eight months. See AR 1715–
5 16. The ALJ found Dr. Wingate’s opinion “somewhat persuasive” and noted that Dr. 6 Wingate opined plaintiff’s limitations would last only six to eight months, but that the 7 RFC “is assessed on a 12-month basis.” See AR 26–27. 8 Plaintiff argues the ALJ erred because plaintiff “had already been that limited for 9 more than 12 months,” as shown, according to plaintiff, by PA McLagan’s opinion. See 10 Dkt. 9 at 5 (citing AR 474). 11 Dr. Wingate’s opinion did not, itself, indicate plaintiff’s limitations had already 12 lasted more than 12 months. See AR 1715–16. The ALJ therefore rationally interpreted 13 Dr. Wingate’s opinion as only opining short-term limitations. Such limitations are not 14 included in the RFC. See SSR 23-1p (“Because of the duration requirement, we will not
15 include limitations in the RFC assessment that completely resolve, or that we expect to 16 completely resolve, within 12 months.”); see also Barnhart v. Walton, 535 U.S. 212, 17 217–22 (2002) (upholding regulations interpreting duration requirement as requiring that 18 actual inability to engage in substantial gainful activity last or be expected to last more 19 than 12 months). Moreover, as discussed above, PA McLagan’s opinion does not 20 support the claim that plaintiff possessed the same marked limitations as Dr. Wingate 21 opined for more than twelve months. 22 The ALJ did not err in his consideration of Dr. Wingate’s opinion. 23 2. Subjective Symptom Testimony
24 1 Plaintiff argues the ALJ erred in assessing her subjective symptom testimony. 2 Dkt. 9 at 5–10. 3 Plaintiff testified at her hearing that, due to pain caused by her impairments, she 4 had difficulties walking, sitting, bending, reaching overhead, stooping, and bending. See
5 AR 88–89. She testified that standing for prolonged periods would cause pain, that she 6 oftentimes had headaches and migraines, and that both the pain and her headaches 7 were distracting. AR 91–94. She also testified that, prior to her right arm surgery in 8 January 2023, she had difficulties typing, her fingers tended to get numb from a pinched 9 nerve, and she had difficulties gripping. AR 95–96. Finally, she testified that her 10 depressive disorder caused her to be unable to leave bed approximately once a week. 11 AR 102. 12 The ALJ's determinations regarding a claimant's statements about limitations 13 “must be supported by specific, cogent reasons.” Reddick v. Chater, 157 F.3d 715, 722 14 (9th Cir. 1998) (citing Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). The ALJ
15 found that plaintiff presented evidence of an underlying impairment which could be 16 expected to produce the alleged symptoms. AR 23. In such a circumstance, “the ALJ 17 can reject [plaintiff's] testimony about the severity of her symptoms only by offering 18 specific, clear, and convincing reasons,” unless there is evidence of 19 malingering. Garrison, 759 F.3d at 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 20 1281 (9th Cir. 1996)). 21 In so doing, “[t]he ALJ must state specifically which symptom testimony is not 22 credible and which facts in the record lead to that conclusion.” Smolen, 80 F.3d at 1284. 23 “General findings are insufficient; rather, the ALJ must identify what testimony is not
24 1 credible and what evidence undermines the claimant’s complaints.” Brown-Hunter v. 2 Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Reddick, 157 F.3d at 722). The Court 3 “may not take a general finding” like “an unspecific conflict” and “comb the record to find 4 specific conflicts.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014).
5 Here, the ALJ made a general finding: he said that “the weight that can be given 6 to the claimant’s symptom reports is undermined for the reasons discussed throughout 7 this decision. Inconsistencies undermine the weight that can be given the claimant’s 8 symptom reports.” AR 23. The ALJ, however, proceeded to summarize the medical 9 evidence of the record without referring to plaintiff’s subjective testimony or identifying 10 inconsistencies between that testimony and the medical evidence. See AR 23–26. He 11 therefore failed to make specific findings with respect to plaintiff’s testimony. In a similar 12 circumstance, where an ALJ “simply stated her non-credibility conclusion and then 13 summarized the medical evidence supporting her RFC determination,” the Ninth Circuit 14 has found that “[t]his is not the sort of explanation of the kind of ‘specific reasons’ we
15 must have in order to review the ALJ’s decision meaningfully, so that we may ensure 16 that the claimant’s testimony was not arbitrarily discredited.” Brown-Hunter, 804 F.3d at 17 494. 18 According to defendant, the ALJ validly discounted plaintiff’s testimony because it 19 was inconsistent with medical evidence and her daily activities. See Dkt. 11 at 3–5. 20 Although the ALJ summarized the medical evidence and plaintiff’s daily activities, the 21 ALJ did not describe this evidence as being inconsistent with plaintiff’s testimony. See 22 AR 23–26. The Court cannot manufacture inconsistencies not relied on by the ALJ to 23 uphold the ALJ’s determination. Brown-Hunter, 804 F.3d at 494 (“Although the
24 1 inconsistencies identified by the district court could be reasonable inferences drawn 2 from the ALJ’s summary of the evidence, the credibility determination is exclusively the 3 ALJ’s to make, and ours only to review. As we have long held, ‘We are constrained to 4 review the reasons the ALJ asserts.’”) (quoting Connett v. Barnhart, 340 F.3d 871, 874
5 (9th Cir. 2003)) (emphasis in original). 6 Moreover, the inconsistencies identified by defendant to not reach the entirety of 7 plaintiff’s testimony. For instance, neither the ALJ nor defendant cite to any medical 8 evidence which purports to be inconsistent with plaintiff’s testimony that she 9 experiences headaches which make it difficult to concentrate. See AR 22–27; Dkt. 11 at 10 3–5. Additionally, with respect to plaintiff’s testimony about her difficulties with using her 11 fingers and typing, the ALJ discussed some of the evidence related to plaintiff’s cubital 12 and carpal tunnel syndromes, noting that a single exam had “normal range of motion in” 13 some of her joints and that, after plaintiff underwent surgery, a test indicated her left 14 hand had normal grip and strength, straight leg raise tests were negative, and plaintiff
15 exhibited normal gait. AR 24 (citing AR 1711, 2008, 2011). This is not necessarily 16 inconsistent with plaintiff’s testimony that she had difficulties writing and typing—none of 17 that evidence directly relates to her ability to use her fingers for manipulative functions. 18 With respect to plaintiff’s activities of daily living, the ALJ noted plaintiff was able 19 “to drive, shop in stores, make meals, clean, and engage in home improvement 20 projects.” AR 24 (citing AR 322–29, 383–86, 397–400). An ALJ may discount a 21 claimant's testimony based on daily activities that contradict their testimony. Orn v. 22 Astrue, 495 F.3d 625, 639 (9th Cir. 2007). But here, there is no “reasonable inference 23 that such an inconsistency exists.” Ferguson, 95 F.4th at 1203. No evidence suggested
24 1 plaintiff’s activities involved prolonged sitting or walking. Nor did evidence suggest her 2 activities involved using her fingers frequently. Nor did the ALJ suggest plaintiff engaged 3 in these activities at times in which she had headaches. 4 In sum, the ALJ failed to give specific, clear, and convincing reasons for rejecting
5 plaintiff’s testimony. An error that is inconsequential to the non-disability determination 6 is harmless. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). If 7 the errors of the ALJ result in a residual functional capacity (RFC) that does not include 8 relevant work-related limitations, the RFC is deficient and the error is not harmless. Id. 9 Here, plaintiff's subjective testimony evidence suggested she was limited in several 10 ways not reflected in the RFC: she testified she had significant manipulative difficulties, 11 that she had difficulties sitting for prolonged periods, and that she had distractions and 12 pain resulting from headaches. Thus, the ALJ’s error in failing to give specific, clear, and 13 convincing reasons was not harmless. 14 3. Lay Witness Statement
15 Plaintiff argues the ALJ erred by failing to address the statement of plaintiff’s 16 friend Chad. Dkt. 9 at 11. Chad completed a function report and a headache 17 questionnaire in December 2020. AR 314–21, 381–82. He lived with plaintiff at the time 18 the reports were completed and indicated he had known plaintiff for six years. AR 314. 19 He indicated plaintiff had difficulties with functions such as lifting, bending, standing, and 20 walking (AR 319) and that plaintiff had difficulties completing her daily functions (AR 21 314). He also indicated plaintiff had “2-3 headaches a week” and “1-2 major headaches 22 per month,” and that her headaches typically last one or two days and cause plaintiff to 23 be unable to do her daily activities. AR 381.
24 1 The ALJ did not address Chad’s statement. See AR 22–27. Prior to the 2 implementation of the new regulations governing the evaluation of medical opinions, the 3 Ninth Circuit’s rule was that, “[i]f the ALJ wishes to discount the testimony of the lay 4 witnesses, he must give reasons that are germane to each witness.” Dodrill v. Shalala,
5 12 F.3d 915, 920 (9th Cir. 1993). 6 Defendant points out that, under the new regulations for evaluating medical 7 evidence, “the ALJ is ‘not required to articulate how [they] consider evidence from 8 nonmedical sources’ using the same criteria as required for medical sources.” Dkt. 11 at 9 7 (citing 20 C.F.R. § 404.1520c(d)) (alteration in original). Yet, “an ALJ . . . must explain 10 why significant probative evidence has been rejected.’” Kilpatrick v. Kijakazi, 35 F.4th 11 1187, 1193 (9th Cir. 2022) (quoting Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 12 1394–95 (9th Cir. 1984)). This standard enables courts “to engage in meaningful review 13 of a disability claim.” Id. 14 Under this standard, Chad’s statement was significant and probative evidence
15 which the ALJ could not ignore – it suggested plaintiff had numerous functional 16 limitations based on his everyday observations of plaintiff as plaintiff’s roommate. Cf. 17 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); Dodrill, 12 F.3d at 919–20 18 (“[F]riends and family members in a position to observe a claimant's symptoms and 19 daily activities are competent to testify as to her condition. . . . An eyewitness can often 20 tell whether someone is suffering or merely malingering. . . . [T]his is particularly true of 21 witnesses who view the claimant on a daily basis . . . .”). 22 Defendant also argues that any error in failing to address the plaintiff’s friend’s 23 statement is harmless because “the same evidence that the ALJ referred to in
24 1 discrediting [the claimant’s] claims also discredits [Chad’s] claims.” Dkt. 7 at 11 (quoting 2 Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012)) (alterations in original). However, 3 the Court has found that the ALJ did not adequately consider plaintiff’s claims, and, 4 therefore, it cannot find that the reasons given for discrediting plaintiff’s claims are also
5 valid reasons for discrediting Chad’s statement. 6 Thus, the ALJ erred by failing to give reasons for not accounting for Chad’s 7 statement. 8 4. Transferable Skills 9 Plaintiff challenges the ALJ’s finding at step five that she had transferrable work 10 skills which would enable her to perform the positions identified by the ALJ. Dkt. 9 at 11 13–14. 12 In determining whether a claimant can perform work which exists in significant 13 number in the national economy, an ALJ must consider whether the claimant has skills 14 from past work which can be transferred to meet the requirements of skilled or semi-
15 skilled work activities of other jobs. See 20 C.F.R. §§ 404.1520(g)(1), 404.1560(c), 16 404.1568(d)(1). If an ALJ determines a claimant has acquired transferable work skills 17 from past employment, the ALJ must identify the skills, and positions to which they may 18 be transferred. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1223–36 (9th 19 Cir. 2009). 20 The VE’s testimony is ordinarily substantial evidence on which an ALJ may rely 21 in finding a claimant had transferable skills. See Osenbrock v. Apfel, 240 F.3d 1157, 22 1163 (9th Cir. 2001) (finding that testimony of VE that duties of past work provided skills 23 which were transferable and similar to other work was substantial evidence on which to
24 1 uphold ALJ’s transferability determination); see also Bayliss v. Barnhart, 427 F.3d 1211, 2 1218 (9th Cir. 2005) (“A VE’s recognized expertise provides the necessary foundation 3 for his or her testimony.”). 4 Here, based on the VE’s testimony (AR 115), the ALJ found Plaintiff had the
5 following transferrable skills from her past work as an administrative clerk: “information 6 giving, providing info[rmation] to people, answering, informing, customer service, taking 7 orders.” AR 27. The ALJ then found, based on the VE’s testimony, that these skills 8 would transfer to the semi-skilled positions which the ALJ identified Plaintiff could 9 perform at step five—appointment clerk, reception clerk, and telephone solicitor. AR 28. 10 Plaintiff raises several arguments with respect to the ALJ’s transferability finding. 11 See Dkt. 9 at 13–14. First, plaintiff argues that the skills identified by the ALJ and the VE 12 are not “skills,” but, rather, a mere “recitation of tasks.” Dkt. 9 at 13–14. Plaintiff’s 13 argument rests on a flawed premise: that a “task” cannot also be a “skill.” SSR 82- 14 41(2)(a) defines a “skill” as
15 knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through 16 performance of an occupation which is above the unskilled level (requires more than 30 days to learn). It is practical and familiar knowledge of the principles and 17 processes of an art, science or trade, combined with the ability to apply them in practice in a proper and approved manner. 18 The same ruling says that “[s]kills refer to experience and demonstrated proficiency with 19 work activities in particular tasks or jobs” and, “[i]n evaluating the skill level of [past 20 relevant work] or potential occupations, work activities are the determining factors.” SSR 21 82-41(2)(d). 22 This definition of skills makes clear that the performance of “work activities”— 23 which may also be tasks—are skills when those activities require “the exercise of 24 1 significant judgment” in the context of a skilled or semiskilled occupation, require the 2 development of “practical and familiar knowledge” regarding the principles and 3 processes the activity involves, and require the application of that knowledge “in a 4 proper and approved manner.” SSR 82-41(2)(a). The ruling’s emphasis on “work
5 activities” as “the determining factors” confirms this understanding. SSR 82-41(2)(d). 6 Indeed, many of SSR 82-41’s examples of skills can readily be described as tasks: 7 “typing, filing, tabulating and posting data in record books, preparing invoices and 8 statements, operating adding and calculating machines.” 9 The VE testified the skills identified by the ALJ were, indeed, skills, and that 10 those skills were likely acquired in plaintiff’s past work. AR 115. The Court presumes 11 that the VE was familiar with the Commissioner’s regulations and definitions of terms of 12 art such as “skills” when he gave his testimony. See Terry v. Saul, 998 F.3d 1010, 13 1012–14 (9th Cir. 2021). Absent contrary evidence, the ALJ reasonably relied on the 14 VE’s testimony that plaintiff had acquired transferable skills. See Osenbrock, 240 F.3d
15 at 1163. 16 Second, plaintiff argues that “there is no evidence that it took [plaintiff] longer 17 than 30 days to learn the information she gave out,” Dkt. 9 at 14, suggesting that the 18 identified skills do not meet the “30 days” requirement of SSR 82-41(2)(a). However, 19 SSR 82-41(2)(a) specifies that the “occupation” in which skills are acquired, and not the 20 specific skills themselves, must be “above the unskilled level,” which means that the 21 occupation “requires more than 30 days to learn.” This is not a question of whether 22 plaintiff herself required more than 30 days to learn the occupation, but, rather, whether 23
24 1 “a person can usually learn to do the job in 30 days.” 20 C.F.R. § 404.1568(a) (defining 2 “unskilled work”) (emphasis added). 3 The ALJ found, based on the VE’s testimony, that plaintiff’s past relevant work 4 was semiskilled, rather than unskilled, work. AR 27. The Court presumes the VE was
5 familiar with Commissioner’s definition of “unskilled work” when he testified that 6 plaintiff’s past work was done at the semiskilled, rather than the unskilled, level. See 7 Terry, 998 F.3d at 1012–14. This testimony was substantial evidence on which the ALJ 8 reasonably relied. See Bayliss, 427 F.3d at 1218. 9 Finally, plaintiff argues that the RFC’s limitation to “predictable work settings and 10 processes” is “inconsistent with the defendant’s definition of a skill” because “‘significant 11 judgment’ would not be needed in a job with ‘predictable work settings and processes.’” 12 Dkt. 9 at 14. 13 The ALJ must consider whether a reduced RFC prohibits the exercise of skills in 14 determining whether those skills would be transferable to other work. See SSR 82-
15 41(4)(a). But plaintiff does not explain, nor can the Court discern, why a position cannot 16 require an occupant to exercise significant judgment within the context of predictable 17 settings and processes. Indeed, it is not difficult to imagine positions where a worker 18 would do just that. For instance, the position of appointment clerk requires, among other 19 things, “schedul[ing] appointments with [an] employer or other employees for clients or 20 customers.” DOT 237.367-010. The position’s occupant might engage in a predictable 21 process to schedule appointments and do so in a predictable setting while nevertheless 22 exercising significant judgment in determining when appointments are scheduled and 23 how to interact with clients and customers. Thus, the VE’s testimony that a person
24 1 limited to predictable settings and processes could perform the positions identified is 2 substantial evidence on which the ALJ reasonably relied. See Bayliss, 427 F.3d at 3 1218. 4 In sum, the Court finds no error in the ALJ’s determination that plaintiff
5 possesses transferable work skills. 6 5. Remedy 7 Plaintiff asks the Court to remand the case with directions to award benefits. Dkt. 8 9 at 15–18. “‘The decision whether to remand a case for additional evidence, or simply 9 to award benefits . . . is within the discretion of the court.’” Trevizo v. Berryhill, 871 F.3d 10 664, 682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 11 1987)). The Court “generally remand[s] for an award of benefits only in ‘rare 12 circumstances.’” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 13 2014) (quoting Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004)). 14 A remand for award of benefits is proper only if
15 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide 16 legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as 17 true, the ALJ would be required to find the claimant disabled on remand.
18 Trevizo, 871 F.3d at 682–83 (quoting Garrison, 759 F.3d at 1020). Even if each element 19 is satisfied, the Court retains discretion to remand for further proceedings. See Leon v. 20 Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). The Court should “remand for further 21 proceedings when . . . an evaluation of the record as a whole creates serious doubt that 22 a claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. “If additional proceedings 23 24 1 can remedy defects in the original administrative proceeding, a social security case 2 should be remanded for further proceedings.” Trevizo, 871 F.3d at 682 (cleaned up). 3 The Court has found that the second element of the credit-as-true test is 4 satisfied—the ALJ failed to provide legally sufficient reasons for rejecting plaintiff’s
5 subjective testimony and Chad’s statement. However, the Court finds that there are 6 ambiguities in the record for which further proceedings would serve the useful purpose 7 of allowing the ALJ to resolve, and that the improperly evaluated evidence would not 8 necessarily direct a finding of disability. For instance, the record as ambiguous as to the 9 frequency with which plaintiff experienced migraines which would impact her work 10 performance. Compare AR 94 (plaintiff testifying she has a migraine only twice a year) 11 with AR 381 (Chad indicating plaintiff had “1-2 major headaches per month”). 12 Plaintiff argues that her testimony that she has difficulties using her fingers, if 13 credited as true, would direct a finding of disability under SSR 96-9p. Dkt. 9 at 17. That 14 ruling states that “[a]ny significant manipulative limitation of an individual's ability to
15 handle and work with small objects with both hands will result in a significant erosion of 16 the unskilled sedentary occupational base.” SSR 96-9p. But having found that the ALJ 17 reasonably relied on the VE’s testimony that plaintiff was capable of semiskilled work, 18 this statement does not direct a finding of disability in this case. And as plaintiff 19 acknowledges, plaintiff underwent surgery related to her manipulative limitations during 20 the relevant time – which the ALJ only briefly considered. See Dkt. 9 at 10 (“Whether or 21 not [plaintiff] ever regained her normal handwriting is not answered in the current record 22 . . . .”). She testified she experienced some improvements post-surgery. See AR 96. 23 This raises further ambiguities related to both the period in which plaintiff may have
24 1 experienced disability, and the effectiveness of treatment, that must be resolved on 2 remand. Cf. Dominguez v. Colvin, 808 F.3d 403, 409–10 (9th Cir. 2015) (as amended) 3 (“When further proceedings are necessary to determine the onset date, it is appropriate 4 to remand for those proceedings.”).
5 CONCLUSION 6 Based on the foregoing discussion, the Court concludes the ALJ improperly 7 determined plaintiff to be not disabled. Therefore, the ALJ’s decision is reversed and 8 remanded for further administrative proceedings including a de novo hearing. 9 10 Dated this 3rd day of May, 2024. A 11 Theresa L. Fricke 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24