Howard v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: March 16, 2021
• Docket: 3:20-cv-05130
• Status: Unknown

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 BILLI JO H., CASE NO. 3:20-CV-5130-DWC 11 Plaintiff, ORDER 12 v.

13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 16 I. INTRODUCTION 17 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the 18 Commissioner of Social Security’s (“Commissioner”) denial of Plaintiff’s applications for 19 disability insurance and social security income benefits. Pursuant to 28 U.S.C. § 636(c), Federal 20 Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this 21 matter heard by the undersigned Magistrate Judge. See Dkt. 2. 22 After considering the record, the Court concludes the Administrative Law Judge 23 (“ALJ”) erred by rejecting Plaintiff’s testimony regarding the severity of some of her symptoms, 24 the opinions of treating psychologist Karen Hye, Psy.D., and the opinions of treating doctor 1 Christine Macatuno, M.D. Accordingly, this matter is reversed and remanded pursuant to 2 sentence four of 42 U.S.C. § 405(g) to the Commissioner for further proceedings consistent with 3 this Order. 4 II. FACTUAL AND PROCEDURAL HISTORY

5 Plaintiff applied for disability insurance and supplemental security income benefits in 6 August 2017, alleging disability as of June 30, 2015. See Dkt. 14, Admin. Record (“AR”), 65– 7 66, 79–80, 201–02. The applications were denied on initial administrative review, and on 8 reconsideration. See AR 63–122. A hearing was held before ALJ Lawrence Lee on December 9 13, 2018. See AR 996–1033. In a decision dated January 18, 2019, ALJ Lee determined Plaintiff 10 to be not disabled. See AR 25–39. The Appeals Council denied review. See AR 1–4. 11 III. STANDARD OF REVIEW 12 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 13 social security benefits if the ALJ’s findings are based on legal error or not supported by 14 substantial evidence in the record as a whole. Ford v. Saul, 950 F.3d 1141, 1153–54 (9th Cir.

15 2020) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). 16 IV. DISCUSSION 17 A. Whether the ALJ Reasonably Discounted Plaintiff’s Testimony 18 Plaintiff contends the ALJ failed to give clear and convincing reasons for discounting 19 Plaintiff’s symptom testimony. See Dkt. 15, pp. 9–16. Plaintiff testified she had back surgery in 20 2013, which stabilized her spine but did not improve nerve pain in her legs. AR 1004–05. She 21 reported she cannot sit or stand for more than 10–15 minutes at a time, or walk for more than a 22 few minutes. AR 257, 262. She testified she had migraines, which improved with Botox 23 treatment, but she still gets 10–15 per month. See AR 257, 266, 1006. She testified she can

24 1 handle most of her personal care, but needs help drying her hair. See AR 258, 264, 1007. 2 Plaintiff testified she has difficulty leaving her home, spending most of her time alone or with 3 family that lives with her. See AR 257, 264, 1011, 1015. She testified she has to self-catheterize 4 when going to the bathroom, which she does five to six times per day. AR 1020. She testified it

5 takes ten minutes each time. AR 1021. Plaintiff testified she has trouble eating in public due to 6 gastroparesis, which can cause her to vomit in the middle of a meal. AR 1022. Plaintiff testified 7 she has trouble concentrating and remembering. AR 260, 262, 1024–25. 8 The Ninth Circuit has “established a two-step analysis for determining the extent to 9 which a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 10 678 (9th Cir. 2017). The ALJ must first determine whether the claimant has presented objective 11 medical evidence of an impairment that “‘could reasonably be expected to produce the pain or 12 other symptoms alleged.’” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 13 2014)). At this stage, the claimant need only show the impairment could reasonably have caused 14 some degree of the symptoms; she does not have to show the impairment could reasonably be

15 expected to cause the severity of the symptoms alleged. Id. The ALJ found Plaintiff met this first 16 step. See AR 31. 17 If the claimant satisfies the first step, and there is no evidence of malingering, the ALJ 18 may only reject the claimant’s testimony “‘by offering specific, clear and convincing reasons for 19 doing so. This is not an easy requirement to meet.’” Trevizo, 871 F.3d at 678 (quoting Garrison, 20 759 F.3d at 1014–15). In evaluating the ALJ’s determination at this step, the Court may not 21 substitute its judgment for that of the ALJ. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). As 22 long as the ALJ’s decision is supported by substantial evidence, it should stand, even if some of 23

24 1 the ALJ’s reasons for discrediting a claimant’s testimony fail. See Tonapetyan v. Halter, 242 2 F.3d 1144, 1148 (9th Cir. 2001). 3 The ALJ rejected Plaintiff’s testimony regarding the severity of her impairments. See AR 4 31–32. The ALJ separately analyzed Plaintiff’s testimony regarding her bladder issues,

5 gastroparesis, fibromyalgia and musculoskeletal issues, migraines, right shoulder pain, and 6 mental impairments. See AR 32–35. The Court will follow suit and separately address the ALJ’s 7 analysis of each symptom source. 8 1. The ALJ Erred in Rejecting Plaintiff’s Testimony Regarding Bladder Issues 9 The ALJ erred in rejecting Plaintiff’s testimony regarding the severity of her bladder 10 symptoms. An ALJ may reject a claimant’s symptom testimony when it is contradicted by the 11 medical evidence. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 12 2008) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995)). But the ALJ must explain 13 how the medical evidence contradicts the claimant’s testimony. See Dodrill v. Shalala, 12 F.3d 14 915, 918 (9th Cir. 1993). The ALJ summarized the medical evidence and noted Plaintiff was able

15 to independently self-catheterize. See AR 32. But the ALJ did not explain with specificity how 16 any of this was inconsistent with Plaintiff’s testimony. See id. The ALJ therefore erred. See 17 Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (finding error where the ALJ did not 18 identify specific inconsistencies but “simply stated her non-credibility conclusion and then 19 summarized the medical evidence supporting her RFC determination”). 20 2. The ALJ Erred in Rejecting Plaintiff’s Testimony Regarding Gastroparesis 21 The ALJ similarly erred in rejecting Plaintiff’s testimony regarding the severity of her 22 symptoms from gastroparesis. The ALJ noted Plaintiff takes medication for this condition, and 23 has maintained a relatively stable weight. See AR 32. But that evidence does not contradict

24 1 Plaintiff’s testimony that she may have to vomit in the middle of eating a meal. The record does 2 not establish clear work limitations from this condition, but the ALJ failed to adequately address 3 Plaintiff’s testimony, and thus erred. 4 3. The ALJ Erred in Rejecting Plaintiff’s Testimony Regarding Fibromyalgia and Musculoskeletal Issues 5 The ALJ erred in rejecting Plaintiff’s testimony regarding the severity of her symptoms 6 from fibromyalgia and musculoskeletal issues. Fibromyalgia is an “unusual” disease for which 7 “there is an absence of symptoms that a lay person may ordinarily associate with joint and 8 muscle pain. The condition is diagnosed entirely on the basis of the patients’ reports of pain and 9 other symptoms.” Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017) (internal citations and 10 quotation marks omitted). The ALJ here noted Plaintiff had normal findings such as muscle bulk 11 and tone, gait, coordination, and sensation. See AR 33. These finding are not inconsistent with 12 fibromyalgia, nor is the record as uniform as the ALJ suggested. The records to which the ALJ 13 cited note tenderness to palpation and difficulty with tandem gait, findings more relevant to 14 Plaintiff’s claimed symptoms than findings such as normal muscle tone. See e.g., AR 531, 566, 15 607, 616, 654. The ALJ is responsible for resolving conflicts in the medical evidence, but must 16 consider specific findings in the broader context “with an understanding of the patient’s overall 17 well-being and the nature of her symptoms.” Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 18 2016). The ALJ failed to adequately explain how he did so here, and erred in rejecting Plaintiff’s 19 fibromyalgia and musculoskeletal symptom testimony as inconsistent with the medical evidence. 20 The ALJ also noted Plaintiff had “multiple abnormal drug screens, which were negative 21 for prescribed medications and/or positive for oxycodone.” AR 33. The ALJ did not make any 22 conclusions regarding these facts, though, and thus did not provide a clear and convincing reason 23 to reject Plaintiff’s symptom testimony here. 24 1 4. The ALJ Did Not Err in Rejecting Plaintiff’s Testimony Regarding Migraines 2 The ALJ did not err in rejecting Plaintiff’s testimony regarding the severity of her 3 symptoms from migraines. Contrary to Plaintiff’s testimony, the medical evidence to which the 4 ALJ cited indicates Plaintiff’s migraine symptoms improved significantly with treatment. See

5 AR 33. In particular, providers noted Plaintiff had a 50 percent reduction in frequency and 6 severity of her migraines after Botox injections, decreasing from more than 15 per month down 7 to around three per month at half the pain intensity. See AR 957, 982. This evidence contradicts 8 Plaintiff’s testimony that she gets 10–15 migraines even after Botox treatment, so the ALJ did 9 not err in rejecting Plaintiff’s testimony regarding the severity and frequency of her migraines. 10 5. The ALJ Erred in Rejecting Plaintiff’s Testimony Regarding Right Shoulder Pain 11 The ALJ erred in rejecting Plaintiff’s testimony regarding her right shoulder symptoms. 12 The ALJ summarized several medical records, but did not explain how those contradicted 13 Plaintiff’s testimony. See AR 33. Nor is any contradiction obvious on examination of the records 14 to which the ALJ cited, as those records generally document tenderness, decreased range of

15 motion, and test results indicative of shoulder problems. See AR 929, 969. The ALJ thus erred in 16 rejecting Plaintiff’s right shoulder symptom testimony. 17 6. The ALJ Erred in Rejecting Plaintiff’s Testimony Regarding Mental Impairments 18 The ALJ erred in rejecting Plaintiff’s testimony regarding the severity of her mental 19 impairments. The ALJ reasoned Plaintiff did not seek mental health therapy until early 2017, and 20 “treatment records do not document further therapy appointments/evaluations after late 2017.” 21 AR 34. However, as Defendant concedes, Plaintiff’s psychologist, Dr. Hye, submitted a letter to 22 the Appeals Council stating she saw Plaintiff 40 times between June 1, 2017, and April 19, 2019. 23 See AR 10. When additional evidence is submitted for the first time to the Appeals Council, the

24 1 Court must consider whether the ALJ’s decision remains supported by substantial evidence in 2 light of the new evidence. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th 3 Cir. 2012). Dr. Hye’s letter undermines the ALJ’s finding that Plaintiff did not receive additional 4 treatment for her mental impairments, and thus the ALJ erred in rejecting Plaintiff’s testimony

5 based on that finding. 6 Although the ALJ pointed to other medical evidence to suggest Plaintiff’s symptoms 7 were not as severe as alleged, the fact that he did not have documentation of treatment notes 8 from at least 40 visits indicates he did not have the full picture of Plaintiff’s condition. The ALJ 9 must consider the entirety of Plaintiff’s condition when evaluating the medical evidence, and he 10 did not have adequate information to do that here. See Attmore, 827 F.3d at 877. The ALJ thus 11 erred in rejecting Plaintiff’s mental symptom testimony as inconsistent with the medical 12 evidence. 13 The ALJ also erred in rejecting Plaintiff’s testimony regarding the severity of her mental 14 impairments as inconsistent with her traveling to California for a funeral. An ALJ may reject a

15 plaintiff’s symptom testimony based on her daily activities if they contradict her testimony or 16 “meet the threshold for transferable work skills.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 17 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The ALJ reasoned Plaintiff 18 “testified that she flew alone to Los Angeles, California for 10 days where she was dropped off 19 and picked up by family members, indicating she is able to move about outside the house and get 20 tasks done when necessary.” AR 35. That Plaintiff flew to a funeral on a single occasion and 21 interacted with family members does not contradict her testimony that she had difficulty leaving 22 her house and spent most of her time alone or with other family members. “One does not need to 23 be ‘utterly incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th

24 1 Cir. 2001) (quoting Fair, 885 F.2d at 603). The ALJ failed to show a clear conflict between 2 Plaintiff’s testimony and her activities, and thus erred in rejecting Plaintiff’s testimony regarding 3 the severity of her mental health symptoms. 4 In sum, the ALJ failed to give clear and convincing reasons to reject Plaintiff’s testimony

5 regarding the severity of her symptoms from bladder issues, gastroparesis, fibromyalgia and 6 musculoskeletal issues, right shoulder issues, and mental impairments. The ALJ gave adequate 7 reasons for rejecting Plaintiff’s testimony regarding the severity of her migraine symptoms. 8 B. Whether the ALJ Reasonably Evaluated the Medical Evidence 9 Plaintiff contends the ALJ erred by rejecting the opinions of treating providers Dr. Hye 10 and Dr. Macatuno. See Dkt. 15, pp. 2–13. The regulations regarding evaluation of medical 11 evidence have been amended for claims protectively filed after March 27, 2017. 20 C.F.R. §§ 12 404.152c(c), 416.920c(c). As Plaintiff filed her claims in August 2017, the new regulations apply 13 to Plaintiff’s claims. See AR 65, 79, 201–02. 14 The new regulations state the Commissioner “will no longer give any specific evidentiary

15 weight to medical opinions; this includes giving controlling weight to any medical opinion.” 16 Revisions to Rules Regarding the Evaluation of Medical Evidence (“Revisions to Rules”), 82 17 Fed. Reg. 5844, 5867–68 (Jan. 18, 2017); see also 20 C.F.R. §§ 404.1520c(a), 416.920c(a). 18 Instead, the Commissioner must consider all medical opinions and “evaluate their 19 persuasiveness” based on supportability, consistency, relationship with the claimant, 20 specialization, and other factors. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). Supportability and 21 consistency are the key factors. 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). 22 Although the regulations eliminate the “physician hierarchy,” deference to specific 23 medical opinions, and assigning “weight” to a medical opinion, the ALJ must still “articulate

24 1 how [he/she] considered the medical opinions” and “how persuasive [he/she] find[s] all of the 2 medical opinions.” 20 C.F.R. §§ 404.1520c(a), (b)(1), 416.920c(a), (b)(1). The ALJ is 3 specifically required to “explain how [he/she] considered the supportability and consistency 4 factors” for a medical opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).

5 The parties dispute whether current Ninth Circuit law applies to claims filed after March 6 27, 2017, given the new regulations. See Dkt. 15, 18–19. The Ninth Circuit currently requires the 7 ALJ to provide “clear and convincing” reasons for rejecting the uncontradicted opinion of either 8 a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing 9 Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th 10 Cir. 1990)). When a treating or examining physician’s opinion is contradicted, the Ninth Circuit 11 has held the medical opinion can be rejected “for specific and legitimate reasons that are 12 supported by substantial evidence in the record.” Lester, 81 F.3d at 830–31 (citing Andrews v. 13 Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 14 1983)).

15 At this time, the Ninth Circuit has not issued a decision stating whether it will continue to 16 require, in the absence of a hierarchy, an ALJ to provide “clear and convincing” or “specific and 17 legitimate reasons,” or some variation of those standards, when analyzing medical opinions. 18 Regardless, it is not clear the Court’s consideration of the adequacy of an ALJ’s reasoning under 19 the new regulations differs from the current Ninth Circuit standards in any significant respect. 20 The new regulations require the ALJ to articulate how persuasive the ALJ finds medical opinions 21 and to explain how the ALJ considered the supportability and consistency factors. 20 C.F.R. §§ 22 404.1520c(a), (b), 416.920c(a), (b). This appears, at the least, to require an ALJ to specifically 23 account for the legitimate factors of supportability and consistency in addressing the

24 1 persuasiveness of a medical opinion. Furthermore, the Court must continue to consider whether 2 the ALJ’s decision is supported by substantial evidence. See Revisions to Rules, 82 Fed. Reg. 3 5844, at 5852 (“Courts reviewing claims under our current rules have focused more on whether 4 we sufficiently articulated the weight we gave treating source opinions, rather than on whether

5 substantial evidence supports our final decision.”). 6 Consistent with the above considerations, this Court will apply the new regulations, 7 consistent with Ninth Circuit law, in determining whether the ALJ’s decision is free of legal 8 error and supported by substantial evidence. 9 1. The ALJ Erred in Rejecting Dr. Hye’s Opinions 10 Dr. Hye was Plaintiff’s treating psychologist. See AR 841–53. Dr. Hye drafted a letter, 11 dated December 7, 2017, outlining Plaintiff’s conditions. See AR 843–44. Dr. Hye noted 12 Plaintiff reported significant physical symptoms, which manifested in her inability to sit still for 13 long periods during counseling sessions. AR 843. Dr. Hye stated Plaintiff “reports and 14 demonstrates issues with confusion.” Id. Dr. Hye noted Plaintiff has issues with attention,

15 concentration, and memory. Id. She noted Plaintiff has trouble leaving her house due to 16 agoraphobia and fear of panic attacks. AR 844. 17 Dr. Hye also completed a medical source statement. See AR 845–47. She opined Plaintiff 18 had limitations in multiple areas of understanding and memory, and sustained concentration and 19 persistence. AR 845. Dr. Hye opined Plaintiff had little to no limitations in social interaction, but 20 mild to marked limitations in adaptation. AR 846. 21 Dr. Hye completed a form in October 2018 stating Plaintiff’s symptoms remained 22 unchanged despite her trial on a new medication. AR 841–42. 23

24 1 The ALJ found Dr. Hye’s opinions not persuasive. AR 36. The ALJ reasoned Dr. Hye’s 2 opinions were undermined by the fact she only saw Plaintiff for limited follow-up mental health 3 treatment. Id. The ALJ reasoned Dr. Hye’s opinions were inconsistent with the overall medical 4 record and that Dr. Hye relied too heavily on Plaintiff’s self-reports. Id.

5 The ALJ erred in rejecting Dr. Hye’s opinions. As discussed above, the ALJ’s finding 6 that Plaintiff received only limited follow-up treatment was undermined by Dr. Hye’s letter to 7 the Appeals Council. See AR 10. That letter also undermined the ALJ’s finding that Dr. Hye’s 8 opinions were inconsistent with the medical evidence because the ALJ did not have a full picture 9 of Plaintiff’s medical records on which he could reasonably reach that conclusion. 10 Because the ALJ did not have the full picture of the medical evidence, his finding that Dr. 11 Hye relied heavily on Plaintiff’s self-reports—rather than the medical evidence—is also not 12 supported by substantial evidence. An ALJ may reject a treating doctor’s opinions if they “are 13 based ‘to a large extent’ on an applicant’s self-reports and not on clinical evidence.” Ghanim v. 14 Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (quoting Tommasetti, 533 F.3d at 1041). “However,

15 when an opinion is not more heavily based on a patient’s self-reports than on clinical 16 observations, there is no evidentiary basis for rejecting the opinion.” Ghanim, 763 F.3d at 1162 17 (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1199–1200 (9th Cir. 2008)). Because the 18 ALJ failed to adequately address the medical evidence, the Court cannot determine whether the 19 ALJ reasonably found Dr. Hye relied on Plaintiff’s self-reports over the medical evidence. The 20 ALJ therefore harmfully erred in rejecting Dr. Hye’s opinions. 21 2. The ALJ Erred in Rejecting Dr. Macatuno’s Opinions 22 Dr. Macatuno was Plaintiff’s primary care provider. See AR 630–34, 637–41, 650–55, 23 682–87, 692–97, 716–21, 723–28, 765–69, 805–14, 926–30, 938–42, 953–57. Dr. Macatuno

24 1 cosigned an opinion report from Alika Antone, D.P.T., Plaintiff’s physical therapist. See AR 2 854–61; see also AR 862–69. Ms. Antone opined Plaintiff could lift 10 pounds for up to one 3 third of an eight-hour workday, and less than 10 pounds for one third to two thirds of the day. 4 AR 855. Ms. Antone opined Plaintiff could stand and walk for one hour in an eight-hour

5 workday. Id. She opined Plaintiff could sit for a total of four hours, but needed to alternate 6 among sitting, standing, and walking every 10–15 minutes. AR 855–56. Ms. Antone opined 7 Plaintiff had postural, manipulative, and environmental restrictions. See AR 857–58. She opined 8 Plaintiff would be absent from work more than three times per month. AR 858. Dr. Macatuno 9 concurred with all of these opinions. See AR 861. 10 Dr. Macatuno completed a form in November 2018 stating Plaintiff’s symptoms 11 remained unchanged. AR 870–71. 12 The ALJ found Dr. Macatuno’s opinions not persuasive. AR 36. The ALJ reasoned Dr. 13 Macatuno did not provide an explanation for her concurrence with Ms. Antone’s opinions. AR 14 35. The ALJ reasoned Dr. Macatuno and Ms. Antone’s opinions were inconsistent with

15 Plaintiff’s treatment records. AR 35–36. The ALJ reasoned Dr. Macatuno and Ms. Antone relied 16 too heavily on Plaintiff’s self-reports. AR 36. The ALJ reasoned the providers’ opinions were 17 inconsistent with Plaintiff’s reported independence in her activities of daily living. Id. 18 The ALJ erred in rejecting Dr. Macatuno’s opinions. Dr. Macatuno saw Plaintiff on many 19 occasions, and her own records could provide an explanation for her opinions. See Garrison, 759 20 F.3d at 1013 (holding the ALJ erred in rejecting treating doctor’s opinions as unexplained while 21 ignored doctor’s treatment records). Furthermore, as discussed above with respect to Plaintiff’s 22 testimony, the ALJ erred in evaluating the medical evidence regarding Plaintiff’s physical issues. 23 See supra Part IV.A.3, 5. Because the ALJ misevaluated that evidence, his finding that Dr.

24 1 Macatuno’s opinions were unexplained and inconsistent with Plaintiff’s treatment records was 2 not supported by substantial evidence. 3 The ALJ further erred in rejecting Dr. Macatuno’s opinions as too heavily reliant on 4 Plaintiff’s self-reports. As with the ALJ’s evaluation of Dr. Hye’s opinions, the ALJ’s failure to

5 properly evaluate the medical evidence means the Court cannot determine whether the ALJ 6 reasonably found Dr. Macatuno relied on Plaintiff’s self-reports instead of the medical evidence. 7 Finally, the ALJ erred in rejecting Dr. Macatuno’s opinions as inconsistent with 8 Plaintiff’s activities of daily living. The ALJ gave no explanation as to what activities 9 contradicted Dr. Macatuno’s opinions. An ALJ errs when he rejects a medical opinion “with 10 boilerplate language that fails to offer a substantive basis for” the ALJ’s conclusion. Garrison, 11 759 F.3d at 1012–13 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996). That 12 Plaintiff could live independently does not contradict Dr. Macatuno’s opinions that Plaintiff had 13 exertional, postural, manipulative, and environmental limitations. The ALJ consequently erred in 14 rejecting Dr. Macatuno’s opinions.

15 C. Whether the ALJ Reasonably Evaluated Plaintiff’s RFC 16 Plaintiff argues the ALJ erred by failing to account for Plaintiff’s alleged urinary 17 dysfunction in the RFC. See Dkt. 15, pp. 16–17. Because the Court has found the ALJ erred in 18 rejecting Plaintiff’s symptom testimony, among other things, Plaintiff’s argument succeeds. See 19 Lingenfelter v. Astrue, 504 F.3d 1028, 1040–41 (9th Cir. 2007) (holding ALJ’s RFC assessment 20 and step five determination were not supported by substantial evidence where RFC and 21 hypotheticals to vocational expert failed to include all of the claimant’s impairments). The ALJ 22 erred in assessing Plaintiff’s RFC. 23

24 1 D. Scope of Remand 2 Plaintiff asks the Court to remand this matter for further administrative proceedings. See 3 Dkt. 15, pp. 17–18. “‘The decision whether to remand a case for additional evidence, or simply 4 to award benefits[,] is within the discretion of the court.’” Trevizo, 871 F.3d at 682 (quoting

5 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). The Court agrees remand for further 6 proceedings is the appropriate remedy. 7 On remand, the ALJ shall reevaluate Plaintiff’s testimony, Dr. Hye’s opinions, and Dr. 8 Macatuno’s opinions. The ALJ shall reassess Plaintiff’s RFC, and all other relevant steps of the 9 disability evaluation. The ALJ shall conduct further proceedings as necessary to reevaluate the 10 disability determination in light of this opinion. 11 V. CONCLUSION 12 Based on the foregoing reasons, the Court finds the ALJ improperly concluded Plaintiff 13 was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and this matter 14 is remanded for further administrative proceedings in accordance with the findings contained

15 herein. 16 Dated this 16th day of March, 2021. 17 A 18 David W. Christel United States Magistrate Judge 19 20 21 22 23 24