Gingrich v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: April 28, 2022
• Docket: 3:21-cv-05377
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JOANNA M GINGRICH, Case No. 3:21-cv-5377-TLF 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S COMMISSIONER OF SOCIAL SECURITY, DECISION TO DENY BENEFITS 9 Defendant. 10

11 Plaintiff has brought this matter for judicial review of defendant’s denial of her 12 applications for disability insurance and supplemental security income benefits. The 13 defendant concedes error occurred; the only issue is whether there should be a remand 14 for award of benefits, or a remand for additional proceedings. 15 The parties have consented to have this matter heard by the undersigned Magistrate 16 Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule MJR 13. 17 I. ISSUE FOR REVIEW 18 A. Whether the Court should remand for an award of benefits, or for additional 19 proceedings. 20

21 II. BACKGROUND 22 On December 8, 2009, plaintiff filed a Title II application for a period of disability 23 and disability insurance benefits (“DIB”) and a Title XVI application for supplemental 24 1 security income (“SSI”), alleging in both applications a disability onset date of December 2 1, 2007. Administrative Record (“AR”) 12, 133. Plaintiff later amended her onset date to 3 April 15, 2008. AR 12. For plaintiff’s Title II application, plaintiff’s date last insured is 4 June 30, 2013. AR 2072. Both claims were denied initially and upon reconsideration.

5 AR 12. 6 Administrative Law Judge (“ALJ”) Scott R. Morris held a hearing on December 7 14, 2011 (AR 397– 445) and issued an unfavorable decision on January 5, 2012, finding 8 plaintiff not disabled. AR 9–21. On appeal, this Court reversed and remanded for 9 additional proceedings. AR 382-93. 10 ALJ Gary Elliot held a new hearing on January 22, 2015 (AR 446-77) and issued 11 an unfavorable decision on February 24, 2015, finding plaintiff not disabled. AR 352-75. 12 On appeal, this Court reversed and remanded for additional proceedings. AR 995– 13 1020. 14 ALJ David Johnson held a hearing on May 4, 2018 (AR 934-60) and issued a

15 decision on November 19, 2018 finding plaintiff not disabled. AR 903-33. On appeal, 16 this Court reversed and remanded for additional proceedings. AR 2189–2203. 17 ALJ Johnson held a new hearing on November 25, 2020 (AR 2110-35) and 18 issued a partially favorable decision on January 21, 2021, finding that plaintiff was not 19 disabled prior to an established onset date of December 28, 2018, but she was disabled 20 on and after that date; and plaintiff was not under a disability through the date last 21 insured. AR 2072–2091. The ALJ found that since plaintiff’s amended alleged onset 22 date of April 15, 2008, plaintiff had the following severe impairments: polycystic ovary 23 syndrome, degenerative disc disease, diabetes, arthritis, obesity, plantar fasciitis,

24 1 stenosis, arthropathy, edema, rotator cuff, tendonitis, ankle contracture and bursitis, 2 bipolar disorder, post-traumatic stress disorder (PTSD), reading disorder, mathematics 3 disorder, and disorder of written expression. AR 2075. 4 Based on the limitations stemming from these impairments, the ALJ found that

5 before December 28, 2018, plaintiff was able to perform a reduced range of light work. 6 AR 2077. Relying on vocational expert (“VE”) testimony, the ALJ found at step four that 7 plaintiff could not perform her past relevant work. AR 2091. At step five, the ALJ found 8 that prior to December 28, 2018, there were jobs that existed in significant numbers in 9 the national economy that plaintiff could perform; therefore, the ALJ concluded that prior 10 to that date, plaintiff was not disabled. AR 2091. 11 Plaintiff seeks judicial review of the ALJ’s January 21, 2021 decision. Dkt. 16, pp. 12 1–18. 13 III. STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405(g), the Court may set aside the Commissioner’s

15 denial of Social Security benefits if the ALJ’s findings are based on legal error or not 16 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 17 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “such relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion.” Biestek v. 19 Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). 20 21 22 23

24 1 IV. DISCUSSION 2 Medical Evidence 3 Plaintiff assigns error to the ALJ’s evaluation of the medical opinions of: Dr. 4 Morris, Dr. Brown, Ms. Carlson, PA-C, and Dr. Grant. Dkt. 16, pp. 3–10.

5 Plaintiff argues that the ALJ erred (1) by failing to include in plaintiff’s RFC the 6 portion of Dr. Morris’s opinion he credited, and (2) by discounting Dr. Morris’s opinion 7 based on his estimate that plaintiff’s limitations would last for “six-plus” months. Dkt. 16, 8 p. 4; AR 2085. 9 In its 2014 remand order, as well as the 2016 and 2020 remand orders, this 10 Court found that the ALJ harmfully erred by failing to address how the RFC accounts for 11 the cognitive limitations opined by Dr. Morris, which the ALJ credited. AR 387-393, 12 1002-1015, 1018-1019, 2193-2200, 2203. Specifically, the Court pointed out that while 13 the RFC accounts for Dr. Morris’s opinion regarding plaintiff’s moderate limitation in 14 understanding, remembering, and following complex instructions, it also contradicted

15 plaintiff’s moderate limitation in performing routine tasks. AR 2196. 16 When an issue has already been decided by the district court in the same case, 17 the law of the case doctrine generally prohibits the ALJ and the district court from re- 18 visiting that issue and deciding it differently than it was previously decided by the district 19 court. See Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016) (district court has 20 discretion to apply law of the case doctrine in Social Security appeals). 21 Here, the ALJ gave some weight to the cognitive functioning limitations identified 22 by Dr. Morris. AR 2085. The ALJ also provided the same RFC as in his prior decision 23 without addressing the error found by the Court in 2020. AR 911, 2077. The ALJ’s

24 treatment of Dr. Morris’s opinion (Dr. Morris’s opinion is in the record at AR 241-244), 1 which this Court found harmful error in 2020, cannot be used here again to support the 2 ALJ’s failure to include in the RFC these cognitive limitations. 3 With regards to the ALJ’s second reason, Social Security disability can only be 4 based on inability to work due to impairments that have “lasted or can be expected to

5 last for a continuous period of not less than 12 months” or result in death. 20 C.F.R. §§ 6 404.1505(a), 416.905(a). Dr. Morris estimated that plaintiff’s impairments would last at 7 most “6+ months,” (AR 244). Yet, the record shows that plaintiff’s impairments 8 exceeded “6+ months,” as evidenced by later opinions of other medical sources that 9 were consistent with or more limiting than Dr. Morris’s opinion. AR 256, 301-02, 2867- 10 68, 1054, 2177, 2212. Therefore, the ALJ did not have substantial evidence upon which 11 to discount Dr. Morris’ opinion when there were no other opinions in the record to 12 support an opinion on the duration of less-than-twelve-months. 13 With respect to Dr. Brown, plaintiff argues that the ALJ erred (1) by failing to 14 include the portion of Dr. Brown’s opinion he credited in plaintiff’s RFC, and (2) by

15 discounting Dr. Brown’s opinion regarding plaintiff’s marked limitation because it was 16 heavily based on plaintiff’s subjective symptom testimony. Dkt. 16, pp. 4–6; AR 2086. 17 The ALJ’s evaluation of Dr. Brown’s opinion (Dr. Brown’s opinion is in the record 18 at AR 253-258) and the issues presented here regarding the opinion have already been 19 decided by this Court. See AR 917, 2198-99. In its January 2020 remand order, this 20 Court found that the ALJ harmfully erred by failing to address how the RFC incorporates 21 the portion of Dr. Brown’s opinion regarding moderate limitations in exercising judgment 22 and making decisions and performing routine tasks. AR 2198-99. 23

24 1 As discussed in the previous section, because this Court has already decided on 2 the ALJ harmfully erred in evaluating Dr. Brown’s opinion, the issue will not be revisited 3 or decided differently. See Stacy, 825 F.3d at 567. Therefore, the ALJ’s treatment of Dr. 4 Brown’s opinion, which this Court found as harmful error in 2020, cannot be used here

5 to support his current evaluation of the cognitive limitations opined by Dr. Brown. 6 Concerning the opinion of Ms. Carlson, PA-C, Plaintiff assigns error to the ALJ’s 7 decision to give “limited weight” to Ms. Carlson’s opinion because (1) she did not have 8 access or the opportunity to review as many records as the other medical sources, (2) 9 she is not an acceptable medical source under the regulations, (3) it was inconsistent 10 with the objective medical evidence, and (4) it was inconsistent with plaintiff’s daily 11 activities. Dkt. 16 p. 6; AR 2088. 12 Luci Carlson, PA-C, evaluated plaintiff on May 31, 2016 and opined that plaintiff 13 has chronic low back pain/degenerative disc disease and bipolar type 2 disorder. AR 14 1597. Based on plaintiff’s impairments, Ms. Carlson found that plaintiff is limited to

15 sedentary work, defined as lifting ten pounds maximum and carrying small articles for 16 two and a half hours to six hours continuously or throughout an eight-hour workday. See 17 AR 1598. Ms. Carlson also opined that while plaintiff’s bipolar disorder is permanent 18 and her back pain is chronic, plaintiff’s low dose medication treatment would likely not 19 limit her ability to work or seek out work. Id. 20 Plaintiff filed her applications before March 27, 2017. Under the Social Security 21 regulations applicable to this case, “only ‘acceptable medical sources’ can [provide] 22 medical opinions [and] only ‘acceptable medical sources’ can be considered treating 23 sources.” See SSR 06-03p. Nevertheless, evidence from “other sources,” that is, lay

24 1 evidence, can demonstrate “the severity of the individual’s impairment(s) and how it 2 affects the individual’s ability to function.” Id. at *4. 3 In addition, there are “other sources” such as nurse practitioners, therapists, 4 and chiropractors, who are considered other medical sources. See 20 C.F.R. §

5 404.1513(d)(1). See also Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1223–24 (9th 6 Cir. 2010); SSR 06–3p. Evidence from “other medical sources” may be discounted if, as 7 with evidence from lay witnesses in general, the ALJ “gives reasons germane to each 8 [source] for doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citations 9 omitted). 10 Regarding the ALJ’s first reason, a medical source’s lack of familiarity with the 11 medical record is a germane reason an ALJ can use to discount that medical source’s 12 opinion. See 20 C.F.R. § 416.927(c) (6) (“When we consider how much weight to give 13 to a medical opinion, we will also consider. . . the extent to which a medical source is 14 familiar with the other information in your case record. . . .”). Here, the ALJ found that

15 Ms. Carlson’s access to plaintiff’s record was limited as compared to the access of 16 State agency consultant of Dr. Gordon Hale. AR 2088. 17 In assessing plaintiff, Dr. Hale was able to review over 20 of plaintiff’s records 18 (AR 1046-62), but it is unclear from the record, nor does the ALJ explain, how he 19 determined that Ms. Carlson was not as familiar with plaintiff’s record. Ms. Carlson’s 20 opinion does not indicate how many of plaintiff’s records she evaluated, but the record 21 does show that Ms. Carlson saw and examined plaintiff twice. AR 1600-04. The ALJ’s 22 finding that Ms. Carlson did not have to opportunity to review plaintiff’s records as 23

24 1 extensively as Dr. Hale is not supported by the record, therefore the ALJ erred in 2 discounting her opinion for this reason. 3 As a physician's assistant, Ms. Carlson is considered an “other source” under the 4 regulations, and the ALJ can use the opinion of an “other source” in determining the

5 “severity of [the individual's] impairment(s) and how it affects [the individual's] ability to 6 work.” 20 C.F.R. § 404.1513(d). The ALJ cannot, therefore, dismiss Ms. Carlson’s 7 opinion solely because “she lacks the professional education and training of a 8 physician”. See AR 2088. 9 Treatment records show that plaintiff is able to lift more than ten pounds, as she 10 often has to lift her child, contradicting Ms. Carlson’s opinion that plaintiff is limited in her 11 lifting capabilities. AR 895, 898, 1461, 1463. The record shows that the child weighs 12 more than the maximum weight Ms. Carlson opined plaintiff could lift. See AR 898, 13 1461, 2324. 14 A conflict between the opinion of a non-acceptable medical source and a

15 claimant's activities of daily living can serve as a germane reason for discounting such 16 an opinion. Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 17 2007). Here, the ALJ pointed to plaintiff’s ability to take care of her family members and 18 perform household chores. AR 2088. Completing chores such as cleaning, laundry, and 19 grocery shopping are not necessarily inconsistent with Ms. Carlson’s opinion as to 20 plaintiff’s physical limitations. But, plaintiff’s ability to care for her daughter, which 21 includes lifting, carrying, and transferring, is inconsistent with Ms. Carlson’s opinion that 22 plaintiff is limited to light lifting. AR 625, 895, 1463, 1583, 1920. Notably, in plaintiff’s 23

24 1 function reports, plaintiff has consistently reported that she has no issues with lifting. AR 2 169, 177, 629. 3 In citing the inconsistency between Ms. Carlson’s opinion and plaintiff’s daily 4 activities, the ALJ has provided at least one germane reason supported by substantial

5 evidence. Yet this inconsistency is only relevant to the portion of Ms. Carlson’s opinion 6 on physical aspects of plaintiff’s condition. 7 The ALJ did not have any germane reason to discount Ms. Carlson’s opinion 8 relating to plaintiff’s mental health conditions and limitations. AR 2088. Therefore, the 9 ALJ erred in rejecting Ms. Carlson’s opinion on mental health impairments. Any error 10 was harmless, because Ms. Carlson’s opinion is general and does not set forth any 11 specific limitations relating to mental health conditions. Stout v. Comm’r Soc. Sec. 12 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). 13 Regarding Dr. Grant, plaintiff assigns error to the ALJ’s decision to give “little 14 weight” to Dr. Grant’s opinion because it was (1) inconsistent with plaintiff’s daily

15 activities and (2) inconsistent with the objective medical evidence. Dkt. 16, p. 7; AR 16 2087. 17 Brenda Grant, M.D. evaluated plaintiff on August 21, 2017 and found that plaintiff 18 suffers from chronic low back pain and bipolar disorder. AR 1628. Dr. Grant opined that 19 plaintiff would be limited in learning new tasks and maintaining appropriate behavior at 20 work. Id. 21 The ALJ did not provide any reasoning for discounting Dr. Grant’s opinion about 22 work-related limitations concerning plaintiff’s mental condition, bipolar disorder. AR 23 2087. Dr. Grant stated that plaintiff’s work-related limitations would render her unable to

24 1 participate in work, looking for work, or preparing for work. AR 1628. Dr. Grant also 2 opined that plaintiff would be permanently disabled by her condition and limitations. AR 3 1629. 4 Dr. Grant also opined that plaintiff is unable to sit or stand for more than 15

5 minutes and that she is unable to lift more than eight pounds. Id. Dr. Grant further 6 opined that plaintiff is severely limited with lifting and carrying. AR 1629. 7 Regarding the ALJ’s first reason, inconsistency with a claimant’s activities may 8 serve as a proper basis for rejecting a medical source’s opinion. Rollins v. Massanari, 9 261 F.3d 853, 856 (9th Cir. 2001). Here, the ALJ specifically pointed to plaintiff’s ability 10 care for her family members. AR 2087. Plaintiff often lifts, carries, or transfers her 11 disabled daughter. AR 2324, 895, 1463, 1583, 1920. As previously explained, the 12 record shows that the child weighs more than the maximum weight Dr. Grant opined 13 plaintiff could lift. See AR 898, 1461, 2324. 14 Plaintiff’s ability to lift her daughter is inconsistent with Dr. Grant’s finding that

15 plaintiff is severely limited with her lifting and carrying abilities, and that she is unable to 16 lift more than eight pounds. The ALJ has provided a valid reason, supported by 17 substantial evidence, to discount Dr. Grant’s opinion, but only as to physical limitations - 18 - therefore the ALJ did not err in giving “low weight” to this portion of Dr. Grant’s opinion. 19 Because the ALJ has provided a valid and substantially supported reason to discount 20 Dr. Grant’s opinion regarding physical limitations, the Court does not need to further 21 analyze whether the ALJ erred in discounting Dr. Grant’s opinion regarding physical 22 limitations. Any potential error the ALJ may have committed in discounting Dr. Grant’s 23

24 1 opinion is harmless. SeeCarmickle, 533 F.3d at 1162-63 Stout v. Comm’r Soc. Sec. 2 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). 3 None of the ALJ’s reasons for discounting opinions of Dr. Morris, Dr. Brown, Ms. 4 Carlson, or Dr. Grant, regarding plaintiff’s mental health limitations are legally valid or

5 supported by substantial evidence. 6 Plaintiff’s Subjective Symptom Testimony 7 To reject a claimant’s subjective complaints, the ALJ’s decision must provide 8 “specific, cogent reasons for the disbelief.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 9 1995) (citation omitted). The ALJ “must identify what testimony is not credible and what 10 evidence undermines the claimant’s complaints.” Id.; Dodrill v. Shalala, 12 F.3d 915, 11 918 (9th Cir. 1993). Unless affirmative evidence shows the claimant is malingering, the 12 ALJ’s reasons for rejecting the claimant’s testimony must be “clear and convincing.” 13 Lester, 81 F.2d at 834. “[B]ecause subjective descriptions may indicate more severe 14 limitations or restrictions than can be shown by medical evidence alone,” the ALJ may

15 not discredit a subjective description “solely because it is not substantiated affirmatively 16 by objective medical evidence.” Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th 17 Cir. 2006). 18 Plaintiff testified that she leaves the house only three or four times per month to 19 attend doctors’ appointments, is only able to sleep for three or four hours every night, 20 and showers one to two times weekly because she is too tired. AR 2117-19. She also 21 stated that it is hard for her to complete household shores, such as cleaning, because of 22 her back and shoulder pain. AR 2122. Plaintiff testified that her prescribed medication 23 for her back has not been effective. AR 2119.

24 1 As to her mental health, plaintiff testified to having long periods of depression. 2 AR 2120. She explained that within a 30-day month, she has seven to ten good days. 3 AR 2122-23. 4 Plaintiff assigns error to the ALJ’s discounting of her testimony because (1) she

5 failed to follow through with the recommended physical therapy, (2) her symptoms have 6 improved from medication, and (3) it is inconsistent with plaintiff’s daily activities. Dkt. 7 16, pp. 10-12; AR 2079-83. 8 With respect to the ALJ’s first reason, a claimant's failure to follow treatment 9 recommendations may justify discounting her testimony, because “a person's normal 10 reaction is to seek relief from pain.” Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). 11 Here, the ALJ pointed to treatment notes showing that that after three physical therapy 12 sessions in 2015, plaintiff stopped attending, and that her compliance with her home 13 exercises has been “questionable.” AR 1536. The ALJ also cited to treatment notes 14 stating that plaintiff has not had formal therapy since 2016. AR 1866.

15 Plaintiff argues that the ALJ ignored other treatment notes of the physical therapy 16 plaintiff has attended. Dkt. 16, pp. 11-12. However, plaintiff’s cited evidence, which 17 vaguely states that plaintiff gave physical therapy “a good try” (AR 1811), does not 18 disprove the ALJ’s finding. The ALJ’s decision to discount plaintiff’s subjective testimony 19 because she had failed to follow through on her physical therapy treatments is a valid 20 reason and it was supported by substantial evidence. The ALJ, therefore, did not 21 commit error. 22 23

24 1 The ALJ provided other reasons to discount plaintiff’s testimony regarding 2 physical conditions, but the Court need not analyze whether these reasons were proper, 3 as any error would be harmless. Carmickle, 533 F.3d at 1162-63. 4 With respect to mental conditions, the Court has already determined the ALJ

5 erred in evaluating the medical evidence of plaintiff’s mental health conditions and work- 6 related limitations. Therefore, the Court will not address the ALJ’s evaluation of 7 plaintiff’s statements, or the ALJ’s evaluation of the lay witness 8 An error is harmless only if it is not prejudicial to the claimant or “inconsequential” 9 to the ALJ’s “ultimate nondisability determination.” Stout v. Comm’r Soc. Sec. Admin., 10 454 F.3d 1050, 1055 (9th Cir. 2006). 11 A proper evaluation of the medical opinions of Dr. Morris, Dr. Brown, and Dr. 12 Grant, concerning plaintiff’s mental health conditions and work-related limitations, was 13 not included in the hypothetical posed to the VE and the limitations were not 14 incorporated into the ALJ’s decision concerning plaintiff’s RFC. AR 2077. Therefore, the

15 ALJ’s errors were not harmless. 16 Whether the ALJ Failed to Properly Determine Plaintiff’s Residual Functional 17 Capacity 18 Plaintiff argues that the ALJ erred in determining the RFC. Dkt. 16, pp. 13-14. 19 The ALJ committed harmful error in the assessment of the medical opinions of Dr. 20 Morris, Dr. Brown, and Dr. Grant, and therefore the limitations discussed in these 21 opinions did not become incorporated into the RFC. See Social Security Ruling 96-8p, 22 (an RFC “must always consider and address medical source opinions”); Valentine v. 23

24 1 Commissioner Social Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“an RFC that fails 2 to take into account a claimant’s limitations is defective”). 3 Whether the Case Should be Remanded for an Award of Benefits 4 Plaintiff asks that this Court remand this case for an award of benefits starting on

5 plaintiff’s alleged onset date of April 2008. Dkt. 16, pp. 14-15. 6 “‘The decision whether to remand a case for additional evidence, or simply to 7 award benefits[,] is within the discretion of the court.’” Trevizo v. Berryhill, 871 F.3d 664, 8 682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). If 9 an ALJ makes an error and the record is uncertain and ambiguous, the court should 10 remand to the agency for further proceedings. Leon v. Berryhill, 880 F.3d 1041, 1045 11 (9th Cir. 2017). Likewise, if the court concludes that additional proceedings can remedy 12 the ALJ’s errors, it should remand the case for further consideration. Revels, 874 F.3d 13 at 668. 14 The Ninth Circuit has developed a three-step analysis for determining when to

15 remand for a direct award of benefits. Such remand is generally proper only where 16 “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 17 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited 18 evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” 19 Trevizo, 871 F.3d at 682-83 (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 20 2014)). 21 The Ninth Circuit emphasized in Leon v. Berryhill that even when each element is 22 satisfied, the district court still has discretion to remand for further proceedings or for 23 award of benefits. 80 F.3d 1041, 1045 (9th Cir. 2017). 24 1 The Commissioner concedes that the ALJ’s January 2021 decision “contained 2 legal errors,” but that the proper remedy is remand for further proceedings, as the 3 record is not fully developed and there are still unresolved issues. Dkt. 20, pp.2-6. 4 The Court agrees that the record is fully developed, as plaintiff’s record includes

5 treatment notes from the past decade about plaintiff’s physical and mental impairments. 6 The Court also notes since 2010, this case has been remanded for further proceedings 7 three times. AR 495–505, 995–1019, 2186–2203. Dr. Brown’s opinion found that 8 plaintiff had moderate cognitive limitations with respect to performing routine tasks, 9 exercising judgment and making decisions. AR 256. The ALJ gave these moderate 10 limitations some weight, but did not incorporate them into the hypothetical for the VE’s 11 consideration, nor were these limitations included in the RFC. AR 2129. Dr. Grant 12 opined that plaintiff would be limited in learning new tasks and maintaining appropriate 13 behavior at work. Id. The ALJ did not provide any reasoning for discounting this portion 14 of Dr. Grant’s opinion. AR 2087.

15 If these limitations are credited as true, plaintiff would be determined to be 16 disabled, because she would not be able to complete even routine tasks. AR 2129 17 (hypothetical to the VE includes simple, predictable, routine tasks). Similarly, the 18 limitations opined by Dr. Morris were not incorporated into the RFC. AR 2077. 19 As discussed above, the ALJ harmfully erred in evaluating medical opinion 20 evidence from Dr. Brown, Dr. Morris, and Dr. Grant. Because the record is not 21 ambiguous, and if these medical opinions are credited as true, plaintiff would have been 22 found disabled, his case is remanded for an award of benefits. 23

24 1 CONCLUSION 2 Based on the foregoing discussion, the Court finds the ALJ erred when he 3 determined plaintiff to be not disabled before December 8, 2018. Defendant’s decision 4 to deny benefits therefore is REVERSED and this matter is REMANDED for an award of

5 benefits. 6 Dated this 28th day of April, 2022. 7 8 A 9 Theresa L. Fricke 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24