Harveen Dhesi v. Commissioner of Social Security Administration

• Court: District Court, C.D. California
• Decided: May 5, 2020
• Docket: 8:19-cv-01295
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 HARVEEN D.,1 ) Case No. 8:19-cv-01295-JDE ) 12 ) Plaintiff, ) MEMORANDUM OPINION AND 13 ) ORDER ) 14 v. ) ) 15 ANDREW M. SAUL,2 ) )

Commissioner of Social Security, ) 16 ) ) 17 Defendant. ) 18 19 Plaintiff Harveen D. (“Plaintiff”) filed a Complaint on June 28, 2019, 20 seeking review of a partial denial of her application for disability insurance 21 benefits (“DIB”). The parties filed a Joint Submission (“Jt. Stip.”) regarding the 22 issues in dispute on April 1, 2020. The matter is now ready for decision. 23

24 1 Plaintiff's name has been partially redacted under Fed. R. Civ. P. 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 25 Management of the Judicial Conference of the United States. 26 2 The Complaint did not name the Commissioner. See Dkt. No. 1. On June 17, 27 2019, Andrew M. Saul became the Commissioner. Thus, he is automatically substituted as the defendant under Fed. R. Civ. P. 25(d). 28 1 I. 2 BACKGROUND 3 Plaintiff protectively filed her application for DIB on September 19, 2015, 4 alleging disability commencing on May 15, 2015. AR 26, 44, 138-44. On July 5 10, 2018, after her application was denied (AR 65-66), Plaintiff, represented by 6 counsel, provided brief testimony before an Administrative Law Judge 7 (“ALJ”), as did a vocational expert (“VE”). AR 42-52. 8 On July 30, 2018, the ALJ found Plaintiff was disabled for a closed 9 period from May 15, 2015 to October 31, 2016, but not thereafter.3 AR 25-35. 10 The ALJ found Plaintiff met the insured status requirements of the Social 11 Security Act (“SSA”) through June 30, 2017. AR 28. The ALJ found Plaintiff 12 had not engaged in substantial gainful activity since May 15, 2015, the date she 13 became disabled. AR 28. The ALJ found that from May 15, 2015 through 14 October 31, 2016, Plaintiff had the severe impairments of “degenerative disk 15 disease of the cervical and lumbar spine, status-post discectomy and fusion of 16 the lumber spine in September 2011, [and] epilepsy with two seizures in May 17 and June 2015[.]” AR 29. The ALJ also found that from May 15, 2015 through 18 October 31, 2016, Plaintiff did not have an impairment or combination of 19 impairments that met or medically equaled the severity of a listed impairment 20 and had the residual functional capacity (“RFC”) to perform sedentary work:4 21

22 3 During the hearing, counsel informed the ALJ that Plaintiff had previously been found disabled from 1997-2008 for her spinal issues. AR 44. 23 4 “Sedentary work” is: “lifting no more than 10 pounds at a time and 24 occasionally lifting or carrying articles like docket files, ledgers, and small tools. 25 Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary 26 if walking and standing are required occasionally and other sedentary criteria are 27 met.” See 20 C.F.R. § 404.1567(a); see also Marvin C. v. Berryhill, 2019 WL 1615239, at *3 (W.D. Wash. Apr. 16, 2019). 28 1 [Plaintiff] was able to lift 10 pounds occasionally and less than 10 pounds 2 frequently; and stand and walk for 2 hours out of an 8-hour day[,] sit for 6 3 hours out of an 8-hour day[,] but neither no more than 20 minutes at a 4 time and head and neck precluded from movement to extremes of range 5 of motion and no fixed position for more than a few minutes. [She] had 6 to be in a comfortable position. Due to recent seizures, she was unable to 7 work at heights or around dangerous machinery. 8 AR 30. The ALJ also found, considering Plaintiff as an individual closely 9 approaching advanced age, along with her education, work experience, and 10 RFC, there were no occupations she could perform with jobs existing in 11 significant numbers in the national economy. AR 32. Thus, the ALJ found 12 Plaintiff was under a “disability,” as defined in the SSA, from May 15, 2015 13 through October 31, 2016. AR 32. 14 Next, the ALJ found Plaintiff did not have any new impairment since 15 November 1, 2016, and her current severe impairments were the same as from 16 May 15, 2015 through October 31, 2016. AR 32. Further, beginning November 17 1, 2016, Plaintiff had not had an impairment or combination of impairments 18 that met or medically equaled a listed impairment. AR 32. 19 The ALJ then found that a medical improvement occurred related to the 20 ability work on November 1, 2016 resulting in an increase in RFC, explaining, 21 “[a]fter November 1, 2016 there is little evidence of breakthrough seizures. In 22 addition, her pain was under better control.” AR 33. The ALJ concluded that 23 beginning November 1, 2016, Plaintiff had the RFC to perform a full range of 24 light work5 and could perform her past relevant work as a real estate agent. AR 25 5 “Light work” is defined as: 26 lifting no more than 20 pounds at a time with frequent lifting or carrying of 27 objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking 28 1 33-34. Thus, the ALJ concluded Plaintiff’s disability ended on November 1, 2 2016, and she had not become disabled again since that date. AR 34. 3 The Appeals Council denied Plaintiff’s request for review of the ALJ’s 4 decision, making the ALJ’s decision the agency’s final decision. AR 2-6. 5 II. 6 LEGAL STANDARDS 7 A. Standard of Review 8 Under 42 U.S.C. § 405(g), this court may review the Commissioner’s 9 decision to deny benefits. The ALJ’s findings and decision should be upheld if 10 they are free from legal error and supported by substantial evidence based on 11 the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 12 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 13 Substantial evidence means such relevant evidence as a reasonable person 14 might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 15 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a 16 preponderance. Id. To determine whether substantial evidence supports a 17 finding, the reviewing court “must review the administrative record as a whole, 18 weighing both the evidence that supports and the evidence that detracts from 19 the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th 20 Cir. 1998). “If the evidence can reasonably support either affirming or 21 reversing,” the reviewing court “may not substitute its judgment” for that of 22 the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 23 24 or standing, or when it involves sitting most of the time with some pushing 25 and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do 26 substantially all of these activities. 27 20 C.F.R. § 404.1567(b); see also Rendon G. v. Berryhill, 2019 WL 2006688, at *3 n.6 (C.D. Cal. May 7, 2019). 28 1 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one 2 rational interpretation, [the court] must uphold the ALJ’s findings if they are 3 supported by inferences reasonably drawn from the record.”). 4 Lastly, even if an ALJ errs, the decision will be affirmed where such 5 error is harmless (Molina, 674 F.3d at 1115), that is, if it is “inconsequential to 6 the ultimate nondisability determination,” or if “the agency’s path may 7 reasonably be discerned, even if the agency explains its decision with less than 8 ideal clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted). 9 B. Standard for Determining Disability Benefits 10 When the claimant’s case has proceeded to consideration by an ALJ, the 11 ALJ conducts a five-step sequential evaluation to determine at each step if the 12 claimant is or is not disabled. See Ford v. Saul, 950 F.3d 1141, 1148-48 (9th 13 Cir. 2020); Molina, 674 F.3d at 1110. 14 First, the ALJ considers whether the claimant currently works at a job 15 that meets the criteria for “substantial gainful activity.” Molina, 674 F.3d at 16 1110. If not, the ALJ proceeds to a second step to determine whether the 17 claimant has a “severe” medically determinable physical or mental impairment 18 or combination of impairments that has lasted for more than twelve months. 19 Id. If so, the ALJ proceeds to a third step to determine whether the claimant’s 20 impairments render the claimant disabled because they “meet or equal” any of 21 the “listed impairments” set forth in the Social Security regulations at 20 22 C.F.R. Part 404, Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec. 23 Admin., 807 F.3d 996, 1001 (9th Cir. 2015). If the claimant’s impairments do 24 not meet or equal a “listed impairment,” before proceeding to the fourth step 25 the ALJ assesses the claimant’s RFC, that is, what the claimant can do on a 26 sustained basis despite the limitations from her impairments. See 20 C.F.R. 27 § 404.1520(a)(4); Social Security Ruling (“SSR”) 96-8p. 28 1 After determining the claimant’s RFC, the ALJ proceeds to the fourth 2 step and determines whether the claimant has the RFC to perform her past 3 relevant work, either as she “actually” performed it when she worked in the 4 past, or as that same job is “generally” performed in the national economy. See 5 Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016). If the claimant cannot 6 perform her past relevant work, the ALJ proceeds to a fifth and final step to 7 determine whether there is any other work, in light of the claimant’s RFC, age, 8 education, and work experience, that the claimant can perform and that exists 9 in “significant numbers” in either the national or regional economies. See 10 Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can 11 do other work, she is not disabled; but if the claimant cannot do other work 12 and meets the duration requirement, the claimant is disabled. See id. at 1099. 13 The claimant generally bears the burden at each of steps one through 14 four to show she is disabled, or she meets the requirements to proceed to the 15 next step; and the claimant bears the ultimate burden to show she is disabled. 16 See, e.g., Ford, 950 F.3d at 1148; Molina, 674 F.3d at 1110; However, at Step 17 Five, the ALJ has a “limited” burden of production to identify representative 18 jobs that the claimant can perform and that exist in “significant” numbers in 19 the economy. See Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 20 180 F.3d at 1100. 21 C. Continuing Disability Determination 22 “If a claimant was previously found to be disabled, the ALJ must 23 determine whether the claimant’s disability continues through the date of the 24 decision.” Toves v. Saul, 2020 WL 2062195, at *1 (S.D. Cal. Apr. 29, 2020). 25 An ALJ follows an eight-step sequential evaluation process to assess whether a 26 recipient continues to be disabled for DIB. 20 C.F.R. § 404.1594; see also 27 Nathan v. Colvin, 551 F. App’x 404, 407 (9th Cir. 2014); Held v. Colvin, 82 F. 28 Supp. 3d 1033, 1037 (N.D. Cal. 2015). 1 In the first step, the Commissioner must determine whether the recipient is currently engaged in substantial gainful activity; if 2 so, she is no longer disabled. § 404.1594(f)(1); see also McCalmon 3 v. Astrue, 319 F. App’x 658, 659 (9th Cir. 2009). If the recipient is not engaged in substantial gainful activity, 4 the second step requires the Commissioner to determine whether 5 she has an impairment or combination of impairments that meets 6 or equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, she 7 continues to be disabled. § 404.1594(f)(2). 8 If the recipient’s impairment or combination of impairments does not meet or equal an impairment in the Listing, the third step 9 requires the Commissioner to determine whether medical 10 improvement has occurred.6 § 404.1594(f)(3). If so, the analysis proceeds to step four; if not, it proceeds to step five. Id. 11 If medical improvement has occurred, the fourth step requires 12 the Commissioner to determine whether the improvement is related to her ability to work — that is, whether there has been an increase 13 in the recipient’s [RFC] [footnote omitted] from the most recent 14 favorable medical decision. § 404.1594(f)(4). If medical 15 improvement is not related to the recipient’s ability to work, the analysis proceeds to step five; if it is, it proceeds to step six. Id. 16 If medical improvement has not occurred or if it is not related 17 to the recipient’s ability to work, the fifth step requires the Commissioner to determine whether an exception applies. 18 § 404.1594(f)(5). Under the first group of exceptions, the 19 Commissioner can find a recipient no longer disabled even though she has not medically improved if she is able to engage in substantial 20 gainful activity; if one of those exceptions applies, the analysis 21 proceeds to step six. § 404.1594(d). Under the second group of exceptions, the Commissioner can find a recipient no longer 22 disabled without determining medical improvement or an ability to 23 engage in substantial gainful activity; if one of those exceptions 24 6 Medical improvement is “any decrease in the medical severity of [a 25 recipient's] impairment(s) which was present at the time of the most recent favorable medical decision that [the recipient was] disabled or continued to be disabled.” 26 § 404.1594(b)(1). “A determination that there has been a decrease in medical 27 severity” must be based on “improvement[ ] in the symptoms, signs, and/or laboratory findings associated with [a recipient’s] impairment(s).” Id. 28 1 applies, the recipient is no longer disabled. § 404.1594(e). If none of the exceptions apply, the recipient continues to be disabled. 2 § 404.1594(f)(5). 3 The sixth step requires the Commissioner to determine whether all the recipient's current impairments in combination are 4 “severe,” which means that they significantly limit her ability to do 5 basic work activities; if not, she is no longer disabled. 6 § 404.1594(f)(6). If the recipient’s current impairments in combination are 7 severe, the seventh step requires the Commissioner to determine 8 whether she has sufficient RFC, “based on all [her] current impairments,” to perform her past relevant work; if so, she is no 9 longer disabled. § 404.1594(f)(7). 10 If the recipient is unable to do her past work, the eighth and final step requires the Commissioner to determine, using the RFC 11 assessed in step seven, whether she can perform any other 12 substantial gainful work; if so, she is no longer disabled. § 404.1594(f)(8). If not, she continues to be disabled. Id. 13

14 Laura G. v. Berryhill, 357 F. Supp. 3d 1023, 1026-27 (C.D. Cal. 2019). 15 III. 16 DISCUSSION 17 The parties present six disputed issues, reordered as: 18 Issue No. 1: Did the ALJ properly consider the treating-physician 19 opinions of Dr. John Sakaria. 20 Issue No. 2: Did the ALJ properly consider the treating physician 21 opinions of Dr. Seven Long and Dr. Kenneth Martinez; 22 Issue No. 3: Did the ALJ properly consider Plaintiff’s subjective 23 allegations regarding her pain and limitations; 24 Issue No. 4: Does new evidence supports a remand; 25 Issue No. 5: Did the ALJ provide Plaintiff an opportunity to be heard; and 26 Issue No. 6: Whether the ALJ properly considered a third-party statement. 27 Jt. Stip. at 2-3. 28 1 A. Consideration of Physicians’ Opinions (Issue Nos. 1 and 2). 2 In Issue No. 1, Plaintiff contends the ALJ failed to address an opinion of 3 treating physician Dr. Sakaria and gave improper reasons for discounting a 4 different opinion from Dr. Sakaria. Jt. Stip. at 15-16, 19-20. In Issue No. 2, 5 Plaintiff contends that the ALJ erred in his assessment of the treating-physician 6 opinions from Dr. Long and Dr. Martinez. Jt. Stip. at 20-21, 23-24. 7 1. Applicable Law 8 In determining a claimant’s RFC, an ALJ must consider all relevant 9 evidence in the record, including medical records, lay evidence, and “the effects 10 of symptoms, including pain, that are reasonably attributable to the medical 11 condition.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) 12 (citation omitted). 13 Three types of physicians may offer opinions in Social Security cases: 14 those who treated the plaintiff, those who examined but did not treat the 15 plaintiff, and those who did neither. See 20 C.F.R. § 404.1527(c); Lester v. 16 Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). A treating physician’s 17 opinion is generally entitled to more weight than an examining physician’s 18 opinion, which is generally entitled to more weight than a nonexamining 19 physician’s. Lester, 81 F.3d at 830. 20 When a treating or examining physician’s opinion is uncontroverted by 21 another doctor, it may be rejected only for “clear and convincing reasons.” See 22 Ford, 950 F.3d at 1154. Where such an opinion is contradicted, the ALJ must 23 provide only “specific and legitimate reasons” for discounting it. Id.; see also 24 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Moreover, “[t]he ALJ 25 need not accept the opinion of any physician, including a treating physician, if 26 that opinion is brief, conclusory, and inadequately supported by clinical 27 findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord 28 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The weight 1 accorded to a physician’s opinion depends on whether it is accompanied by 2 adequate explanation, the nature and extent of the treatment relationship, and 3 consistency with the record as a whole, among other things. 20 C.F.R. 4 § 404.1527(c). 5 2. Analysis 6 i. Opinions of Dr. Sakaria 7 On June 18, 2018, Dr. Sakaria completed a “Medical Assessment of 8 Ability to do Work-Related Activities.” AR 712. He opined that Plaintiff could 9 lift/carry 10 pounds, could sit and walk for 30 minutes without interruption, 10 could stand for only 15 minutes without interruption., and could sit and 11 stand/walk for a total of two hours in an eight-hour workday. Id. He checked a 12 box indicating Plaintiff’s use of her upper extremities was affected, and noted 13 that her right hand was limited to only occasional reaching. Id. He stated that 14 his assessment was supported by Plaintiff’s degenerative disc disease, lower- 15 back pain, and cervical disc disease, and based on magnetic resonance imaging 16 (“MRI”). Id. He concluded Plaintiff was likely to be absent from work about 17 twice a month as a result of her impairments or treatment. Id. 18 Having carefully reviewed the record, the Court agrees with Plaintiff that 19 the ALJ erred by failing to provide any discussion of Dr. Sakaria’s June 2018 20 opinion. The limitations outlined by Dr. Sakaria are significant—including 21 restricting Plaintiff’s lifting, carrying, sitting, walking, and standing—and they 22 conflict with the ALJ’s assessed RFC of a full range of light work. Compare 23 AR 33 & 20 C.F.R. § 404.1567(b) with AR 712. Although an ALJ need not 24 discuss everything in the medical record, an ALJ must discuss significant and 25 probative evidence that is contrary to the ALJ’s findings and explain why it has 26 been rejected. See Robbins, 466 F.3d at 883; Vincent v. Heckler, 739 F.2d 27 1393, 1395 (9th Cir. 1984) (the ALJ must discuss significant and probative 28 evidence and explain why it was rejected); Brown-Hunter, 806 F.3d at 492 1 (federal courts “demand that the agency set forth the reasoning behind its 2 decisions in a way that allows for meaningful review”); Alvarez v. Astrue, 3 2012 WL 282110, at *3 (C.D. Cal. Jan. 26, 2012) (“If the RFC assessment 4 conflicts with a medical source opinion, the ALJ must explain why the opinion 5 was not adopted.”). The failure to discuss or even mention the limitations, let 6 along provide any reason for discounting them, was error 7 Defendant’s justification that the opinion is “simply irrelevant” because 8 it was dated almost a year after Plaintiff’s date last insured does not alter the 9 Court’s conclusion here because the ALJ did not provide that basis for his 10 refusal to consider the evidence. Jt. Stip. at 17. Because the ALJ ignored the 11 opinion entirely, the Court cannot rely on that reasoning to discount the 12 opinion. See Garrison, 759 F.3d at 1010 (District Court’s review is limited to 13 only grounds relied upon by ALJ) (citing Connett v. Barnhart, 340 F.3d 871, 14 874 (9th Cir. 2003); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (Court 15 may review only “the reasons provided by the ALJ in the disability 16 determination and may not affirm the ALJ on a ground upon which [s]he did 17 not rely.” (citation omitted)). Moreover, Defendant’s claim that any error was 18 harmless (see Jt. Stip. 18) fails as Dr. Sakaria’s opinion referred to symptoms 19 that existed during the relevant period and for which the ALJ had determined 20 were severe and disabling during the closed period, and continued to be her 21 current severe impairments. See AR 29, 32; Svaldi v. Berryhill, 720 F. App’x 22 342, 344 (9th Cir. 2017) (holding that “retrospective” opinions that “refer back 23 to the same chronic condition and symptoms” and “do not indicate that there 24 was any decline” in a medical condition over time are not undercut because 25 they were issued “significantly after” a claimant’s date last insured); Lester, 81 26 F.3d at 832 (“This court has specifically held that medical evaluations made 27 after the expiration of a claimant’s insured status are relevant to an evaluation 28 of the preexpiration condition.” (internal quotation marks and citation 1 omitted)); Chavez v. Saul, 2019 WL 4747698, at *4 (E.D. Cal. Sept. 30, 2019) 2 (fact that doctor rendered opinion two years after claimant’s date last insured 3 did not justify rejection of it because the opinion was based on impairments 4 that existed prior to the date last insured). 5 Plaintiff also challenges the ALJ’s assessment of Dr. Sakaria’s “Request 6 for ADAAA Accommodation – MD” dated May 17, 2018. Jt. Stip. at 16, 18- 7 19; AR 34, 696-97. The Commissioner does not attempt to defend any of the 8 reasons stated by the ALJ in assessing the opinion (Jt. Stip. 17-18), instead 9 arguing only that the opinion also is past the date last insured. See Kinley v. 10 Astrue, 2013 WL 494122, at *3 (S.D. Ind. Feb. 8, 2013) (“The Commissioner 11 does not respond to this [aspect of claimant’s] argument, and it is unclear 12 whether this is a tacit admission by the Commissioner that the ALJ erred or 13 whether it was an oversight. Either way, the Commissioner has waived any 14 response.”). As that reason was insufficient to discount the June 2018 opinion, 15 it is also insufficient to discount the May 2018 opinion. See Svaldi, 720 F. 16 App’x at 344; Lester, 81 F.3d at 832; Chavez, 2019 WL 4747698 at *4. 17 ii. Opinions of Dr. Long and Dr. Martinez 18 On May 6, 2016, Dr. Long completed a “Medical Assessment of Ability 19 to Do Work-Related Activities (Neurological)” opining Plaintiff was restricted 20 to a limited range of sedentary work. AR 547-51. On May 13, 2016, Dr. 21 Martinez completed a similar opinion. AR 613-17. 22 Without discussion or citation to either Dr. Long’s or Dr. Martinez’s 23 opinions, the ALJ states he gave Plaintiff’s “treating sources opinions regarding 24 sedentary limitation some weight for her functioning prior to November 1, 25 2016, as they are somewhat consistent with the body of evidence.” AR 31 26 (emphasis added). Later, again without discussion or citation to the opinions, 27 he states he gave “little weight to the opinions of the treating source made 28 before November 1, 2016 as her condition improved after that time.” AR 34 1 (emphasis added). Neither of these catch-all statements, without further 2 specificity, is sufficient for review. See Brown-Hunter, 806 F.3d at 492; Blakes 3 v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003) (citations omitted) (“We require 4 the ALJ to build an accurate and logical bridge from the evidence to her 5 conclusions so that we may afford the claimant meaningful review of the SSA’s 6 ultimate findings.”). As the ALJ does not identify the opinions, and refers to 7 them variously in the singular and plural, it is impossible to determine what 8 reasoning applies to which opinion. Although the Commissioner claims that 9 the ALJ did not actually reject the opinions (Jt. Stip. at 21), by assigning 10 “some” and “little” weight, he necessarily rejected aspects of those opinions. It 11 is unclear which aspect of which opinion was discounted, and why. The ALJ 12 erred in the discounting of these opinions without further explanation and the 13 Court cannot find such error harmless here. 14 As a result, the Court finds the ALJ failed to provide legally sufficient 15 reasons for discounting the opinions of treating physicians set forth above, and 16 such error was not harmless. 17 B. Remand is appropriate. 18 The decision whether to remand for further proceedings is within this 19 Court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) 20 (as amended). Where further proceedings would serve no useful purpose or 21 where the record has been fully developed, a court may direct an immediate 22 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); 23 Harman, 211 F.3d at 1179 (noting that “the decision of whether to remand for 24 further proceedings turns upon the likely utility of such proceedings”). A 25 remand for further proceedings is appropriate where outstanding issues must 26 be resolved before a determination of disability can be made and it is not clear 27 from the record that the claimant is disabled. See Bunnell v. Barnhart, 336 28 F.3d 1112, 1115-16 (9th Cir. 2003). 1 Here, the Court concludes remand for further proceedings is warranted. 2 Plaintiff contends that Doctor Sakaria’s opinions essentially limit her to part- 3 time work, which conflicts with the ALJ’s finding that Plaintiff can engage in 4 full-time light work, making the error not harmless and entitling her to 5 benefits. Jt. Stip. 16, 20, 35. Plaintiff contends that reversal related to the other 6 opinions likewise should result in a disability finding. Id. at 23, 35. However, 7 on this record it is not entirely clear whether Plaintiff was actually disabled 8 through the date of the decision. See Bunnell, 336 F.3d at 1115-16. Indeed, the 9 ALJ found Plaintiff worked at various points from 2015 through 2017, albeit 10 not at a substantially gainful level. AR 28-29, 33-34. Moreover, the assessment 11 of the medical evidence affects other issues raised in the Joint Stipulation, and 12 remand will provide Plaintiff a further opportunity to be heard (Jt. Stip. at 28- 13 29, 31-32), and may permit Plaintiff to present the new evidence that was 14 provided to the Appeals Council but not previously before the ALJ (see Jt. 15 Stip. 24-26, 28-29). See Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 16 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other 17 claims plaintiff raises, none of which would provide plaintiff with any further 18 relief than granted, and all of which can be addressed on remand.”); see also 19 Vaughn v. Berryhill, 242 F. Supp. 3d 998, 1010 (E.D. Cal. 2017) (dispensing of 20 exhaustive analysis of plaintiff’s remaining issues because “[t]he ALJ’s . . . 21 evaluations of [p]laintiff's [testimony], and his consideration of [p]laintiff’s 22 wife[’s] testimony are inescapably linked to conclusions regarding the medical 23 evidence”); Alderman v. Colvin, 2015 WL 12661933, at *8 (E.D. Wash. Jan. 24 14, 2015) (remanding in light of interrelated nature of ALJ’s decision to 25 discount claimant’s testimony and give appropriate consideration to 26 physician’s opinions, step-two findings, and step-five analysis). Because it is 27 unclear, considering these issues, whether Plaintiff was in fact disabled, 28 remand here is on an “open record.” See Brown-Hunter, 806 F.3d at 495; 1 Bunnell, 336 F.3d at 1115-16. The parties may freely take up all issues raised in 2 Joint Stipulation, and any other issues relevant to resolving Plaintiffs claim 3 ||of disability, before the ALJ. 4 Accordingly, on remand, the ALJ shall assess the overlooked treating- 5 physician opinion and reassess the other treating-physician opinions in 6 || conjunction with Plaintiff's subjective complaints and the third-party 7 ||statement, reassess Plaintiff's RFC if appropriate, and proceed through the 8 ||remaining steps of the disability analysis if warranted to determine whether 9 || Plaintiff could still perform her past work, or what other jobs if any, Plaintiff 10 || was capable of performing that existed in significant numbers. 11 IV. 12 ORDER 13 Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS 14 |} ORDERED that Judgment be entered reversing the decision of the 15 ||Commissioner of Social Security and remanding this matter for further 16 ||administrative proceedings consistent with this Order. 17 18 / Dated: May 05, 2020 1D AGEN D. EARLY cs 20 nited States Magistrate Judge 21 22 23 24 25 26 27 28 15