1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CARA L F., 8 Plaintiff, Case No. C23-5829 RSM 9 v. ORDER REVERSING DENIAL OF 10 BENEFITS AND REMANDING COMMISSIONER OF SOCIAL SECURITY, FOR FURTHER PROCEEDINGS 11 Defendant. 12
13 Plaintiff seeks review of the denial of her application for Supplemental Security Income 14 (SSI). Plaintiff contends the ALJ erred by rejecting her symptom testimony and Dr. Duthie’s 15 and Dr. Neims’s medical opinions. Dkt. 10.1 As discussed below, the Court REVERSES the 16 Commissioner’s final decision and REMANDS the matter for further administrative proceedings 17 under sentence four of 42 U.S.C. § 405(g). 18 BACKGROUND 19 This is the second time Plaintiff seeks review of her SSI application. In a November 20 2020 decision, the ALJ found Plaintiff not disabled. AR 10–29. In February 2022, this Court 21 22 1 Plaintiff’s Opening Brief does not entirely comply with the briefing requirements provided in the Court’s Scheduling Order, as Plaintiff did not list the alleged errors on the first page of the brief. See Dkts. 7 at 2; 10 at 1. In 23 the future, counsel shall take care to review and comply with the Court’s briefing requirements.
ORDER REVERSING DENIAL OF 1 reversed the ALJ’s decision and remanded for further proceedings. AR 624–33. In March 2023, 2 the ALJ conducted a new hearing on remand. AR 578–97. In May 2023, the ALJ issued a 3 decision again finding Plaintiff not disabled. AR 550–70. Plaintiff now seeks judicial review of 4 the ALJ’s 2023 decision. 5 DISCUSSION 6 1. Plaintiff’s Symptom Testimony 7 In the 2020 hearing, Plaintiff testified she is unable to work because of symptoms 8 stemming from a brain injury, including fatigue, migraines, memory loss, forgetfulness, poor 9 attention and concentration, insomnia, dizziness, irritability, emotional disturbances, depression, 10 and mood swings. AR 75. She explained it was hard for her to leave the house because of her
11 anxiety. AR 78. She testified she also has symptoms stemming from post-traumatic stress 12 disorder (PTSD), including insomnia, hypervigilance, exhaustion, and inability to regulate her 13 emotions. AR 76. During her more recent hearing, Plaintiff testified that since 2020, she has 14 had suicidal thoughts as well as continued difficulties with anxiety, agoraphobia, and insomnia. 15 AR 584, 586–88, 591. She explained that within a given month, she has difficulties getting out 16 of bed and “maintaining day to day life” 65 to 70 percent of the time due to her mental health 17 impairments.2 AR 588. 18 Where, as here, an ALJ determines a claimant has presented objective medical evidence 19 establishing underlying impairments that could cause the symptoms alleged, and there is no 20 affirmative evidence of malingering, the ALJ can only discount the claimant’s testimony as to
21 2 Plaintiff also testified to other symptoms but challenges only the ALJ’s evaluation of her mental health symptoms. 22 Dkt. 10. The Court will not consider matters that are not “‘specifically and distinctly’” argued in the plaintiff’s opening brief. Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1161 n. 2 (9th Cir. 2008) (quoting Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003). The Court will therefore only 23 consider the ALJ’s evaluation of this portion of Plaintiff’s testimony.
ORDER REVERSING DENIAL OF 1 symptom severity by providing “specific, clear, and convincing” reasons supported by 2 substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “The standard 3 isn’t whether our court is convinced, but instead whether the ALJ’s rationale is clear enough that 4 it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). 5 In this case, the ALJ determined Plaintiff’s “statements concerning the intensity, 6 persistence and limiting effects” of her symptoms “are not entirely consistent with the medical 7 evidence and other evidence in the record.” AR 558. The ALJ first noted Plaintiff’s “minimal 8 engagement in treatment.” Id. An ALJ may discount the claimant’s testimony when the “level 9 or frequency of treatment is inconsistent with the level of complaints.” Molina, 674 F.3d at 1113 10 (quotation omitted). The ALJ’s assessment is not supported by substantial evidence. Addressing
11 Plaintiff’s counseling, the ALJ pointed out there were “no noteworthy mental health treatment 12 records throughout 2019,” and observed that instead of actual counseling notes from 2017 13 through part of 2019, Plaintiff’s record contained only a letter from Plaintiff’s therapist. AR 14 558–59. The ALJ’s focus on the lack of counseling notes is unavailing, considering the letter 15 nonetheless confirms Plaintiff did engage in treatment. See AR 507. The letter also describes 16 Plaintiff’s diagnoses and the symptoms her counseling sessions focused on, which reflect 17 Plaintiff’s testimony. Id. 18 The ALJ also noted that Plaintiff denied medication. AR 559. “[A] claimant’s failure to 19 assert a good reason for not seeking treatment, ‘or a finding by the ALJ that the proffered reason 20 is not believable, can cast doubt on the sincerity of the claimant’s pain testimony.’” Molina, 674
21 F.3d at 1113–14 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The record is not 22 entirely clear about Plaintiff’s use of medication. Plaintiff testified her providers refused to 23 prescribe her certain medication, yet treatment notes show it was Plaintiff herself who denied ORDER REVERSING DENIAL OF 1 their recommendation. See AR 592, 797–98, 801. Nonetheless, looking at the overall record, 2 the ALJ’s finding is not wholly accurate because Plaintiff did not outright reject medication in 3 general—only those recommended by per providers—because she agreed to start trial of 4 hydroxyzine. See AR 801. Therefore, in rejecting Plaintiff’s testimony based on her declining 5 medication, the ALJ erred. 6 Next, the ALJ rejected Plaintiff’s testimony based on her “unremarkable” mental status 7 observations. AR 558. When objective medical evidence in the record is inconsistent with the 8 claimant’s subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.” 9 Smartt, 53 F.4th at 498. Here, the ALJ pointed out that in a December 2018 evaluation, although 10 Plaintiff endorsed PTSD, depression, anxiety, and panic, she was also found cooperative, alert,
11 and oriented with moderately impaired memory, reasonably good insight and judgment, and 12 normal intellectual functioning. See AR 558 (citing AR 534). The ALJ also pointed out that in a 13 January 2019 evaluation, Plaintiff was found to have a dysphoric, very anxious, and fearful 14 mood with moderate liability, yet she was also found as cooperative and well-groomed with 15 intact thought process and content, orientation, perception, memory, fund of knowledge, abstract 16 through and “fair to borderline” concentration, insight, and judgment. See AR 558 (citing AR 17 481–82). The ALJ further pointed to other examinations, which show Plaintiff had normal 18 affect, judgment, and mood, though she also had anxious or depressed mood. AR 772, 779, 791, 19 797–98. The ALJ’s focus on the results of Plaintiff’s evaluations is only somewhat convincing. 20 While the ALJ could reasonably reject Plaintiff’s statements regarding her suicidal thoughts,
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CARA L F., 8 Plaintiff, Case No. C23-5829 RSM 9 v. ORDER REVERSING DENIAL OF 10 BENEFITS AND REMANDING COMMISSIONER OF SOCIAL SECURITY, FOR FURTHER PROCEEDINGS 11 Defendant. 12
13 Plaintiff seeks review of the denial of her application for Supplemental Security Income 14 (SSI). Plaintiff contends the ALJ erred by rejecting her symptom testimony and Dr. Duthie’s 15 and Dr. Neims’s medical opinions. Dkt. 10.1 As discussed below, the Court REVERSES the 16 Commissioner’s final decision and REMANDS the matter for further administrative proceedings 17 under sentence four of 42 U.S.C. § 405(g). 18 BACKGROUND 19 This is the second time Plaintiff seeks review of her SSI application. In a November 20 2020 decision, the ALJ found Plaintiff not disabled. AR 10–29. In February 2022, this Court 21 22 1 Plaintiff’s Opening Brief does not entirely comply with the briefing requirements provided in the Court’s Scheduling Order, as Plaintiff did not list the alleged errors on the first page of the brief. See Dkts. 7 at 2; 10 at 1. In 23 the future, counsel shall take care to review and comply with the Court’s briefing requirements.
ORDER REVERSING DENIAL OF 1 reversed the ALJ’s decision and remanded for further proceedings. AR 624–33. In March 2023, 2 the ALJ conducted a new hearing on remand. AR 578–97. In May 2023, the ALJ issued a 3 decision again finding Plaintiff not disabled. AR 550–70. Plaintiff now seeks judicial review of 4 the ALJ’s 2023 decision. 5 DISCUSSION 6 1. Plaintiff’s Symptom Testimony 7 In the 2020 hearing, Plaintiff testified she is unable to work because of symptoms 8 stemming from a brain injury, including fatigue, migraines, memory loss, forgetfulness, poor 9 attention and concentration, insomnia, dizziness, irritability, emotional disturbances, depression, 10 and mood swings. AR 75. She explained it was hard for her to leave the house because of her
11 anxiety. AR 78. She testified she also has symptoms stemming from post-traumatic stress 12 disorder (PTSD), including insomnia, hypervigilance, exhaustion, and inability to regulate her 13 emotions. AR 76. During her more recent hearing, Plaintiff testified that since 2020, she has 14 had suicidal thoughts as well as continued difficulties with anxiety, agoraphobia, and insomnia. 15 AR 584, 586–88, 591. She explained that within a given month, she has difficulties getting out 16 of bed and “maintaining day to day life” 65 to 70 percent of the time due to her mental health 17 impairments.2 AR 588. 18 Where, as here, an ALJ determines a claimant has presented objective medical evidence 19 establishing underlying impairments that could cause the symptoms alleged, and there is no 20 affirmative evidence of malingering, the ALJ can only discount the claimant’s testimony as to
21 2 Plaintiff also testified to other symptoms but challenges only the ALJ’s evaluation of her mental health symptoms. 22 Dkt. 10. The Court will not consider matters that are not “‘specifically and distinctly’” argued in the plaintiff’s opening brief. Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1161 n. 2 (9th Cir. 2008) (quoting Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003). The Court will therefore only 23 consider the ALJ’s evaluation of this portion of Plaintiff’s testimony.
ORDER REVERSING DENIAL OF 1 symptom severity by providing “specific, clear, and convincing” reasons supported by 2 substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “The standard 3 isn’t whether our court is convinced, but instead whether the ALJ’s rationale is clear enough that 4 it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). 5 In this case, the ALJ determined Plaintiff’s “statements concerning the intensity, 6 persistence and limiting effects” of her symptoms “are not entirely consistent with the medical 7 evidence and other evidence in the record.” AR 558. The ALJ first noted Plaintiff’s “minimal 8 engagement in treatment.” Id. An ALJ may discount the claimant’s testimony when the “level 9 or frequency of treatment is inconsistent with the level of complaints.” Molina, 674 F.3d at 1113 10 (quotation omitted). The ALJ’s assessment is not supported by substantial evidence. Addressing
11 Plaintiff’s counseling, the ALJ pointed out there were “no noteworthy mental health treatment 12 records throughout 2019,” and observed that instead of actual counseling notes from 2017 13 through part of 2019, Plaintiff’s record contained only a letter from Plaintiff’s therapist. AR 14 558–59. The ALJ’s focus on the lack of counseling notes is unavailing, considering the letter 15 nonetheless confirms Plaintiff did engage in treatment. See AR 507. The letter also describes 16 Plaintiff’s diagnoses and the symptoms her counseling sessions focused on, which reflect 17 Plaintiff’s testimony. Id. 18 The ALJ also noted that Plaintiff denied medication. AR 559. “[A] claimant’s failure to 19 assert a good reason for not seeking treatment, ‘or a finding by the ALJ that the proffered reason 20 is not believable, can cast doubt on the sincerity of the claimant’s pain testimony.’” Molina, 674
21 F.3d at 1113–14 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The record is not 22 entirely clear about Plaintiff’s use of medication. Plaintiff testified her providers refused to 23 prescribe her certain medication, yet treatment notes show it was Plaintiff herself who denied ORDER REVERSING DENIAL OF 1 their recommendation. See AR 592, 797–98, 801. Nonetheless, looking at the overall record, 2 the ALJ’s finding is not wholly accurate because Plaintiff did not outright reject medication in 3 general—only those recommended by per providers—because she agreed to start trial of 4 hydroxyzine. See AR 801. Therefore, in rejecting Plaintiff’s testimony based on her declining 5 medication, the ALJ erred. 6 Next, the ALJ rejected Plaintiff’s testimony based on her “unremarkable” mental status 7 observations. AR 558. When objective medical evidence in the record is inconsistent with the 8 claimant’s subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.” 9 Smartt, 53 F.4th at 498. Here, the ALJ pointed out that in a December 2018 evaluation, although 10 Plaintiff endorsed PTSD, depression, anxiety, and panic, she was also found cooperative, alert,
11 and oriented with moderately impaired memory, reasonably good insight and judgment, and 12 normal intellectual functioning. See AR 558 (citing AR 534). The ALJ also pointed out that in a 13 January 2019 evaluation, Plaintiff was found to have a dysphoric, very anxious, and fearful 14 mood with moderate liability, yet she was also found as cooperative and well-groomed with 15 intact thought process and content, orientation, perception, memory, fund of knowledge, abstract 16 through and “fair to borderline” concentration, insight, and judgment. See AR 558 (citing AR 17 481–82). The ALJ further pointed to other examinations, which show Plaintiff had normal 18 affect, judgment, and mood, though she also had anxious or depressed mood. AR 772, 779, 791, 19 797–98. The ALJ’s focus on the results of Plaintiff’s evaluations is only somewhat convincing. 20 While the ALJ could reasonably reject Plaintiff’s statements regarding her suicidal thoughts,
21 concentration, and memory based on her examinations, the results cited by the ALJ do not 22 necessarily address her statements regarding her anxiety, agoraphobia, and insomnia. In fact, 23 they appear to mirror Plaintiff’s testimony. In rejecting Plaintiff’s testimony based on objective ORDER REVERSING DENIAL OF 1 medical evidence, the ALJ erred. 2 The ALJ also seemed to reject Plaintiff’s testimony by highlighting her statement that she 3 worked in customer service until 2004 when she gave birth. AR 562 (citing AR 533). The ALJ 4 may draw an adverse inference as to the credibility of a claimant’s testimony when the record 5 indicates the claimant stopped working for reasons other than his or her disability. See Brutton v. 6 Massanari, 268 F.3d 824, 828 (9th Cir. 2001). The cited evidence states Plaintiff did not return 7 to work after giving birth because she was “in a car accident after that time.” AR 533. Other 8 records show the accident was in 2006. See AR 513, 738. The record as to whether Plaintiff 9 stopped working for another reason is murky at best. As there is not enough information on this 10 record, the Court finds this reason not supported by substantial evidence.
11 2. Medical Opinion Evidence 12 Under the applicable rules, the ALJ must “articulate how [he] considered the medical 13 opinions” and “how persuasive [he] find[s] all of the medical opinions” by considering 14 their supportability, consistency, relationship with the claimant, specialization, and other factors. 15 20 C.F.R. § 416.920c(c). The ALJ is specifically required to consider the two most important 16 factors, supportability and consistency. 20 C.F.R. § 416.920c(a). The supportability factor 17 requires the ALJ to consider the relevance of the objective medical evidence and 18 the supporting explanations presented by the medical source to justify their opinion. 20 C.F.R. § 19 416.920c(c)(1). The consistency factor involves consideration of how consistent a medical 20 opinion is with the other record evidence. 20 C.F.R. § 416.920c(c)(2). Further, under the new
21 regulations, “an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or 22 inconsistent without providing an explanation supported by substantial evidence.” Woods, 32 23 F.4th at 792. ORDER REVERSING DENIAL OF 1 a. Dr. Duthie 2 Dr. Duthie opined that due to Plaintiff’s “poor memory and concentration as well as 3 multiple psychiatric symptoms, it is unlikely [Plaintiff] will be able to work on a full time basis 4 over the next year.” AR 535. The ALJ first rejected Dr. Duthie’s opinion because it was not 5 supported by his own evaluation. AR 561. How a medical source supports his or her medical 6 opinion with relevant objective medical evidence and supporting explanations is a factor the ALJ 7 must consider. 20 C.F.R. § 416.920c(c)(1). Here, the ALJ noted that although Plaintiff had 8 moderately impaired memory and concentration, she also had intact fund of knowledge, an 9 average intellectual functioning, and ability to follow the course of a conversation. AR 561. But 10 Dr. Duthie also found Plaintiff had marked difficulty in carrying out simple and complex
11 instructions, as well as moderate difficulties in interacting with others and responding to usual 12 work situations and changes in a work routine—these align with Dr. Duthie’s opinion about 13 Plaintiff’s psychiatric symptoms affecting Plaintiff’s work functionalities. See AR 535. In 14 rejecting Dr. Duthie’s opinion for its lack of supportability, the ALJ erred. 15 The ALJ also rejected Dr. Duthie’s opinion because it was inconsistent with Plaintiff’s 16 ability to care for young children and attend school, as well as the rest of Plaintiff’s record, 17 which shows “improvement with medication and counseling.” AR 561. How consistent a 18 medical opinion is with evidence from other medical sources and nonmedical sources is a factor 19 the ALJ must also consider. 20 C.F.R. § 416.920c(c)(2). The ALJ’s assessment is 20 unconvincing. Plaintiff testified it is a “daily challenge” to care for her children, that she does
21 “just a little bit” every day, and she has increasingly needed help with caring for her children and 22 household. AR 80–81, 587–88. Plaintiff also testified she withdrew from school due to her 23 medical condition in January 2019, and the record indicates she had difficulties with schooling. ORDER REVERSING DENIAL OF 1 AR 590–91, 767–68. Further, reading the ALJ’s decision, there does not appear to be any 2 citations documenting Plaintiff’s improvement from treatment, which the ALJ critiqued as 3 lacking. See AR 558–60. Without more, the Court cannot say the ALJ reasonably rejected Dr. 4 Duthie’s opinion based on its inconsistency. Because both of the ALJ’s supportability and 5 inconsistency findings of Dr. Duthie’s opinion are not supported by substantial evidence, the 6 ALJ erred in rejecting the physician’s opinion. 7 b. Dr. Neims 8 Dr. Neims opined that based on the combined impact of Plaintiff’s diagnosed mental 9 impairments, Plaintiff would be overall marked in her ability to sustain a normal workday and 10 workweek. See AR 480–81. The ALJ first rejected Dr. Neims’s opinion because it was not
11 supported by his own evaluation. AR 561. How a medical source supports his or her medical 12 opinion with relevant objective medical evidence and supporting explanations is a factor the ALJ 13 must consider. 20 C.F.R. § 416.920c(c)(1). Here, the ALJ pointed to Plaintiff’s “logical 14 thoughts and thought processes, thought content, orientation, perception, memory, fund of 15 knowledge, and abstract thought within normal limits.” AR 562. Plaintiff argues the ALJ erred 16 by considering only the Dr. Neims’s overall marked rating and ignoring the physician’s other 17 marked proposed limitations and by selectively citing to Dr. Neims’s findings. Dkt. 10 at 12. 18 The Court agrees. If Dr. Neims had only provided that Plaintiff was overall marked in her ability 19 to work, then his normal findings would appear to undermine the physician’s opinion. But in 20 addition to his overall rating, Dr. Neims also opined Plaintiff was marked in three specific work
21 functionalities: communicating and performing effectively in a work setting; maintaining 22 appropriate behavior in a work setting; and completing a normal work day and work week 23 without interruptions from psychologically based symptoms. AR 481–82. These proposed ORDER REVERSING DENIAL OF 1 limitations appear to be substantiated by Dr. Neims’s finding regarding Plaintiff’s “dysphoric 2 and very anxious and fearful mood,” “[m]oderate lability,” and “fair to borderline concentration, 3 insight, and judgment. See id. 4 The ALJ also pointed to Dr. Neims’s indication that vocational training or services would 5 “minimize or eliminate [barriers] to [Plaintiff’s] employment” and explained that this suggests 6 the limitations Dr. Neims proposed were in part based on factors unrelated to Plaintiff’s 7 impairments. AR 562 (citing AR 481). However, the ALJ did not explain how this inference 8 was made. Further, even if Dr. Neims’s recommendation was based in part on other factors 9 besides Plaintiff’s impairments, it would not necessarily be mutually exclusive with his medical 10 opinion. It is entirely possible Dr. Neims could find training services useful for Plaintiff while at
11 the same time finding Plaintiff’s work functionalities limited due to her impairments. Overall, 12 the ALJ’s supportability finding fails to show that Dr. Neims’s opinion was not supported with 13 relevant objective medical evidence and explanations, therefore the ALJ erred. 14 The ALJ also erred in rejecting Dr. Neims’s opinion for its inconsistency with other 15 treatment notes showing Plaintiff’s fair performance on mental status evaluations and 16 improvement in her symptoms with treatment. AR 562. As discussed in the previous section, 17 Plaintiff’s treatment notes show Plaintiff either endorsed or was found to have PTSD, 18 depression, and anxiety, mirroring Dr. Neims’s findings. AR 772, 779, 791, 797–98. As also 19 discussed, the ALJ’s decision does not discuss records of improvement. Overall, the ALJ’s 20 inconsistency finding is not supported by substantial evidence.
21 In sum, the ALJ failed to provide substantially supported reasons to reject the medical 22 opinions of Dr. Duthie and Dr. Neims. 23 3. Scope of Remedy ORDER REVERSING DENIAL OF 1 Plaintiff contends that because the ALJ failed to properly evaluate Dr. Duthie’s and Dr. 2 Neims’s opinions, the ALJ was required to include their proposed limitations in her RFC. Dkt. 3 10 at 9–10, 14–15. Plaintiff also argues she would not be able to perform the occupations 4 provided by the vocational expert (“VE”) based on this erroneous RFC. 5 Certainly, “an RFC that fails an to take into account a claimant’s limitations is defective.” 6 See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). However, it is 7 within the ALJ’s purview, not the Court’s, to determine how the ALJ’s improper rejection of 8 Plaintiff’s testimony and Dr. Duthie’s and Dr. Neims’s medical opinions affect the formulation 9 of Plaintiff’s RFC. Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015). Further, the 10 occupations Plaintiff argues she is unable to perform are based on Plaintiff’s current RFC, which
11 could very well be different had the ALJ properly evaluated the medical evidence and Plaintiff’s 12 testimony. 13 In her Reply, Plaintiff contends the Court must remand for an immediate award of 14 benefits because if Dr. Duthie’s opinion or her testimony were credited as true, the ALJ would 15 have to find her disabled on remand. Dkt. 16 at 8–9. Remand for an award of benefits “is a rare 16 and prophylactic exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880 17 F.3d 1041, 1044 (9th Cir. 2017). The Ninth Circuit has established a three-step framework for 18 deciding whether a case may be remanded for an award of benefits. Id. at 1045. First, the Court 19 must determine whether the ALJ has failed to provide legally sufficient reasons for rejecting 20 evidence. Id. (citing Garrison, 759 F.3d at 1020). Second, the Court must determine “whether
21 the record has been fully developed, whether there are outstanding issues that must be resolved 22 before a determination of disability can be made, and whether further administrative proceedings 23 would be useful.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) ORDER REVERSING DENIAL OF 1 (internal citations and quotation marks omitted). Only if the first two steps are satisfied can the 2 Court determine whether, “if the improperly discredited evidence were credited as true, the ALJ 3 would be required to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020. 4 Further, “[e]ven if [the Court] reach[es] the third step and credits [the improperly rejected 5 evidence] as true, it is within the court’s discretion either to make a direct award of benefits or to 6 remand for further proceedings.” Leon, 880 F.3d at 1045 (citing Treichler, 773 F.3d at 1101). 7 The first step is met here, because the ALJ erred in rejecting Plaintiff’s testimony and the 8 medical opinion evidence. However, before the Court can proceed to the third step, the Court 9 must assess whether “the record has been developed thoroughly and is free of conflicts, 10 ambiguities, or gaps” at step two. Id. at 1046. The Court finds there to be remaining factual
11 gaps and conflicting information. For example, whether Plaintiff’s providers declined to 12 prescribe her medication or whether she herself denied medication, and why Plaintiff stopped 13 working after 2004 remain unclear. Additionally, the extent of how Plaintiff’s impairments 14 affect her ability to work, as expressed in Dr. Duthie’s medical opinion and Plaintiff’s own 15 testimony, are contradicted by other medical evidence. See AR 98, 116–17, 120–22, 772, 779, 16 791, 797–98. Plaintiff points out some of these medical opinions “date back to 2018,” but does 17 not explain why that should lessen the contradictions in the record, especially since her alleged 18 onset dates back to December 2004. See Pacheco v. Berryhill, 733 F. App’x 356, 360 (9th Cir. 19 2018) (“[E]vidence that predates the claimant’s application date but postdates the alleged onset 20 date is pertinent to the alleged period of disability.”). Remanding for further administrative
21 proceedings would be appropriate to address these issues. On remand, the ALJ must re-evaluate 22 Plaintiff’s testimony and the medical opinion evidence, reassess all relevant steps of the 23 disability evaluation process, and conduct any necessary proceedings to clarify the record and ORDER REVERSING DENIAL OF 1 reevaluate the disability determination in light of this order. 2 CONCLUSION 3 For the foregoing reasons, the Commissioner’s final decision is REVERSED and this 4 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 5 405(g). 6 DATED this 27th day of March, 2024.
7 A 8 9 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 10
12 13 14 15 16 17 18 19 20 21 22 23 ORDER REVERSING DENIAL OF