Jennifer Ann Colburn v. Andrew Saul

• Court: District Court, C.D. California
• Decided: March 29, 2021
• Docket: 5:19-cv-02449
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JENNIFER ANN C.,1 ) Case No. EDCV 19-2449-JPR 11 ) Plaintiff, ) 12 ) MEMORANDUM DECISION AND ORDER v. ) REVERSING COMMISSIONER 13 ) ANDREW SAUL, Commissioner ) 14 of Social Security, ) ) 15 Defendant. ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner’s final decision 19 terminating her Social Security disability insurance benefits 20 (“DIB”). The matter is before the Court on the parties’ Joint 21 Stipulation, filed August 13, 2020, which the Court has taken 22 under submission without oral argument. For the reasons 23 discussed below, the Commissioner’s decision is reversed and this 24 matter is remanded for further proceedings. 25 26 1 Plaintiff’s name is partially redacted in line with 27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 1 II. BACKGROUND 2 Plaintiff was born in 1978. (Administrative Record (“AR”) 3 201.) She has a master’s degree (AR 64) and worked as an 4 executive director of a nonprofit organization (AR 84-85). 5 On November 25, 2008, Plaintiff applied for DIB, alleging 6 that she had been unable to work since July 31, 2007. (AR 201.) 7 In a determination dated May 21, 2009, she was found disabled 8 beginning on July 31, 2007. (AR 40, 53, 112.) 9 On March 24, 2016, Plaintiff filed a Continuing Disability 10 Review Report, alleging that she remained disabled because of 11 fibromyalgia, chronic fatigue syndrome, and chronic inflammatory 12 response syndrome, or “CIRS.” (AR 219.) On June 9, 2016, her 13 disability was found to have ended on June 1 of that year, 14 terminating her benefits. (AR 109, 118-21.) She requested 15 reconsideration of the cessation determination. (AR 122-23.) On 16 March 6, 2017, a hearing was held before a disability hearing 17 officer (AR 127-35), who upheld the cessation determination in a 18 decision dated May 15, 2017 (AR 110, 136-49). 19 Plaintiff requested a hearing before an Administrative Law 20 Judge. (AR 153, 295-98.) One was held on July 24, 2018, at 21 which Plaintiff, who was represented by counsel, testified, as 22 did a vocational expert. (See AR 59-91.) In a written decision 23 issued November 9, 2018, the ALJ found that Plaintiff’s 24 disability had ended on June 1, 2016. (AR 37-58.) She sought 25 Appeals Council review (AR 197-200, 300-09), which was denied on 26 October 21, 2019 (AR 1-7). This action followed. 27 III. STANDARD OF REVIEW 28 Under 42 U.S.C. § 405(g), a district court may review the 2 1 Commissioner’s decision to deny benefits. The ALJ’s findings and 2 decision should be upheld if they are free of legal error and 3 supported by substantial evidence based on the record as a whole. 4 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 5 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 6 means such evidence as a reasonable person might accept as 7 adequate to support a conclusion. Richardson, 402 U.S. at 401; 8 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 9 is “more than a mere scintilla, but less than a preponderance.” 10 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 11 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the 12 meaning of ‘substantial’ in other contexts, the threshold for 13 such evidentiary sufficiency is not high.” Biestek v. Berryhill, 14 139 S. Ct. 1148, 1154 (2019). To determine whether substantial 15 evidence supports a finding, the reviewing court “must review the 16 administrative record as a whole, weighing both the evidence that 17 supports and the evidence that detracts from the Commissioner’s 18 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 19 1998). “If the evidence can reasonably support either affirming 20 or reversing,” the reviewing court “may not substitute its 21 judgment” for the Commissioner’s. Id. at 720-21. 22 IV. THE EVALUATION OF DISABILITY 23 People are “disabled” for Social Security purposes if they 24 are unable to engage in any substantial gainful activity owing to 25 a physical or mental impairment that is expected to result in 26 death or has lasted, or is expected to last, for a continuous 27 period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin 28 v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 3 1 A. The Eight-Step Evaluation Process 2 The ALJ follows an eight-step sequential evaluation process 3 to assess whether a recipient continues to be disabled. 20 4 C.F.R. § 404.1594(f); see also Nathan v. Colvin, 551 F. App’x 5 404, 407 (9th Cir. 2014); Held v. Colvin, 82 F. Supp. 3d 1033, 6 1037 (N.D. Cal. 2015). In the first step, the Commissioner must 7 determine whether the recipient is currently engaged in 8 substantial gainful activity; if so, she is no longer disabled. 9 § 404.1594(f)(1); see also McCalmon v. Astrue, 319 F. App’x 658, 10 659 (9th Cir. 2009). If not, the second step requires the 11 Commissioner to determine whether she has an impairment or 12 combination of impairments that meets or equals an impairment in 13 the Listing of Impairments (“Listing”) set forth at 20 C.F.R. 14 part 404, subpart P, appendix 1; if so, she continues to be 15 disabled. § 404.1594(f)(2). If not, the third step requires the 16 Commissioner to determine whether medical improvement has 17 occurred.2 § 404.1594(f)(3). If so, the analysis proceeds to 18 step four; if not, it proceeds to step five. Id. 19 If medical improvement has occurred, the fourth step 20 requires the Commissioner to determine whether the improvement is 21 related to her ability to work — that is, whether there has been 22 an increase in the recipient’s residual functional capacity 23 24 2 Medical improvement is “any decrease in the medical severity of [a recipient’s] impairment(s) which was present at 25 the time of the most recent favorable medical decision that [the 26 recipient was] disabled or continued to be disabled.” § 404.1594(b)(1). “A determination that there has been a 27 decrease in medical severity” must be based on “improvement[] in the symptoms, signs, and/or laboratory findings associated with 28 [a recipient’s] impairment(s).” Id. 4 1 (“RFC”)3 from the most recent favorable medical decision. 2 § 404.1594(f)(4). If medical improvement is not related to the 3 recipient’s ability to work, the analysis proceeds to step five; 4 if it is, it proceeds to step six. Id. 5 If medical improvement has not occurred or if it is not 6 related to the recipient’s ability to work, the fifth step 7 requires the Commissioner to determine whether an exception to 8 medical improvement applies. § 404.1594(f)(5). Under the first 9 group of exceptions, the Commissioner can find a recipient no 10 longer disabled even though she has not medically improved if she 11 is able to engage in substantial gainful activity; if one of 12 those exceptions applies, the analysis proceeds to step six. 13 § 404.1594(d). Under the second group of exceptions, the 14 Commissioner can find a recipient no longer disabled without 15 determining medical improvement or an ability to engage in 16 substantial gainful activity; if one of those exceptions applies, 17 the recipient is no longer disabled. § 404.1594(e). If none of 18 the exceptions apply, the recipient continues to be disabled. 19 § 404.1594(f)(5). 20 The sixth step requires the Commissioner to determine 21 whether all the recipient’s current impairments in combination 22 are “severe,” which means that they significantly limit her 23 ability to do basic work activities; if not, she is no longer 24 disabled. § 404.1594(f)(6). 25 If the recipient’s current impairments in combination are 26 27 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545(a)(1); see also Cooper 28 v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 severe, the seventh step requires the Commissioner to determine 2 whether she has sufficient RFC, “based on all [her] current 3 impairments,” to perform her past relevant work; if so, she is no 4 longer disabled. § 404.1594(f)(7). 5 If the recipient is unable to do her past work, the eighth 6 and final step requires the Commissioner to determine, using the 7 RFC assessed in step seven, whether she can perform any other 8 substantial gainful work; if so, she is no longer disabled. 9 § 404.1594(f)(8). If not, she continues to be disabled. Id. 10 B. The ALJ’s Application of the Eight-Step Process 11 At step one, the ALJ found that Plaintiff had not engaged in 12 substantial gainful activity from May 21, 2009, the date of her 13 most recent favorable medical decision,4 through November 15, 14 2018, the date of the ALJ’s decision. (AR 42.) In the 2009 CPD, 15 Plaintiff had the impairments of fibromyalgia and chronic fatigue 16 syndrome. (Id.) As of June 1, 2016, the ALJ found, she had 17 medically determinable impairments of fibromyalgia, chronic 18 fatigue syndrome, Lyme disease, CIRS, positional hypotension with 19 dizziness, sinusitis, asthma, depression, and anxiety. (Id.) At 20 step two, the ALJ concluded that these impairments did not meet 21 or equal a listing. (Id.) At step three, she found that medical 22 improvement had occurred, and Plaintiff’s “medical records 23 confirm” that by June 1, 2016, “there had been a decrease in 24 medical severity of the impairments present at the time of the 25 26 4 The most recent favorable medical decision is also known as the comparison-point decision (“CPD”). See Program Operations 27 Manual System (POMS) DI 28010.105, U.S. Soc. Sec. Admin. (Jan. 13, 2016), http://secure.ssa.gov/apps10/poms.nsf/lnx/0428010105; 28 see also § 404.1594(b)(7). 6 1 CPD.” (AR 44.) At step four, she determined that Plaintiff’s 2 medical improvement was related to her ability to work “because 3 it resulted in an increase in [her] residual functional 4 capacity.” (AR 45.) 5 At step six, the ALJ found that since June 1, 2016, 6 Plaintiff continued to have “a severe impairment or combination 7 of impairments.” (Id.) She also noted that Plaintiff had the 8 “nonsevere” “medically determinable impairment of irritable bowel 9 syndrome.” (Id.) 10 At step seven, she concluded that based on all of 11 Plaintiff’s impairments, she had the RFC to perform “light work” 12 with the following limitations: “occasionally . . . climb 13 ladders, ropes or scaffolds”; “frequently climb ramps or stairs, 14 balance, stoop, kneel, crouch, and crawl”; “avoid exposure to 15 unprotected heights and moving mechanical parts”; “avoid 16 concentrated exposure to fumes, odors, dusts, gases, and poor 17 ventilation”; and “understand, remember, and carry out simple, 18 routine work tasks.” (AR 46.) The ALJ determined that Plaintiff 19 was unable to perform her past relevant work as an executive 20 director of a nonprofit organization. (AR 51.) 21 At step eight, she found that Plaintiff could work as a 22 fundraiser II, survey worker, or information clerk. (AR 51-52.) 23 Accordingly, she found that her disability had ended as of June 24 1, 2016. (AR 52-53.) 25 V. DISCUSSION 26 Plaintiff alleges that the ALJ erred in evaluating the 27 opinion of internist Neil Hirschenbein. (See J. Stip. at 7-17, 28 23-25.) Because the ALJ failed to provide a specific and 7 1 legitimate reason for giving little weight to that opinion, the 2 matter must be remanded for further analysis and findings. 3 A. Applicable Law 4 Three types of physicians may offer opinions in Social 5 Security cases: those who directly treated the plaintiff, those 6 who examined but did not treat the plaintiff, and those who did 7 neither. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996 8 (as amended). A treating physician’s opinion is generally 9 entitled to more weight than an examining physician’s, and an 10 examining physician’s opinion is generally entitled to more 11 weight than a nonexamining physician’s. Id.; see 12 § 404.1527(c)(1)-(2).5 13 The ALJ may discount a physician’s opinion regardless of 14 whether it is contradicted. Magallanes v. Bowen, 881 F.2d 747, 15 751 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. 16 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). When a doctor’s 17 opinion is not contradicted by other medical-opinion evidence, 18 however, it may be rejected only for a “clear and convincing” 19 reason. Magallanes, 881 F.2d at 751 (citations omitted); 20 Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31). 21 When it is contradicted, the ALJ need provide only a “specific 22 and legitimate” reason for discounting it. Carmickle, 533 F.3d 23 at 1164 (citing Lester, 81 F.3d at 830-31). The weight given a 24 doctor’s opinion, moreover, depends on whether it is consistent 25 26 5 For claims filed on or after March 27, 2017, the rules in § 404.1520c (not § 404.1527) apply. See § 404.1520c (evaluating 27 opinion evidence for claims filed on or after Mar. 27, 2017). Plaintiff’s claim was filed before March 27, 2017, however, and 28 the Court therefore analyzes it under former § 404.1527. 8 1 with the record and accompanied by adequate explanation, among 2 other things. See § 404.1527(c); see also Orn v. Astrue, 495 3 F.3d 625, 631 (9th Cir. 2007) (factors in assessing physician’s 4 opinion include length of treatment relationship, frequency of 5 examination, and nature and extent of treatment relationship). 6 B. Relevant Background 7 On July 5, 2018, Dr. Hirschenbein completed a preprinted 8 “PHYSICAL RESIDUAL FUNCTIONAL CAPACITY QUESTIONNAIRE.” (AR 1317- 9 20, 1322.) Dr. Hirschenbein’s check-box responses indicated that 10 Plaintiff was “incapable of even ‘low stress’ jobs”; could “walk 11 . . . [less than one] block” “without rest or severe pain”; could 12 “[s]it 45 minutes” “at one time . . . before needing to get up”; 13 could “[s]tand 5 minutes” “at one time . . . before needing to 14 sit down [or] walk around”; could “sit . . . a total of” “less 15 than 2 hours” “in an 8-hour working day”; “need[ed] a job that 16 permit[ted] shifting positions at will from sitting, standing, or 17 walking”; “need[ed] to take unscheduled breaks” every 45 minutes 18 and lasting 10 minutes each; needed to elevate her legs at “chair 19 height” during “prolonged sitting”; could “rarely . . . lift less 20 than 10 pounds,” “look up [or] hold [her] head in [a] static 21 position,” or “twist,” “stoop,” or “climb stairs”; could 22 “occasionally . . . look down” or “turn [her] head right or 23 left”; could “never” lift more than 10 pounds, “crouch/squat,” or 24 “climb ladders”; could “grasp, turn, [or] twist objects” with her 25 hands bilaterally one percent of the time; could “fine[ly] 26 manipulat[e]” the fingers on either hand five percent of the 27 time; and could never reach bilaterally. (AR 1318-20.) Her 28 impairments would cause her to be “absent from work . . . more 9 1 than four days [a] month.” (AR 1320.) 2 The statement noted that Plaintiff had chronic fatigue, 3 fibromyalgia, CIRS, Lyme disease, anxiety, and depression, and 4 her conditions caused fatigue, chronic pain, anxiety, depression, 5 and “cognitive dysfunction.” (AR 1317.) The opinion listed as 6 supporting clinical findings “positive Lyme Western Blot”6 and 7 “MARCoNS7 nasal culture” as well as “low CD57.”8 (Id.) 8 The ALJ did not specifically discuss Dr. Hirschenbein’s 9 opinion; instead, she addressed it as part of a group of five 10 doctors’ opinions. (AR 50.) She gave “little weight” to all 11 five. (Id.) Initially, she found that they “failed to reference 12 sufficient medically acceptable objective clinical or diagnostic 13 findings to support” them. (Id.) Further, they “appear[ed] to 14 15 6 The Western Blot is a laboratory test to detect antibodies to Borrelia Burgdorferi, a bacteria that causes Lyme disease. 16 Lyme Disease, Mayo Clinic, https://www.mayoclinic.org/ diseases-conditions/lyme-disease/diagnosis-treatment/drc-20374655 17 (last visited Mar. 26, 2021). 18 7 A deep nasal swab tests for Multiple Antibiotic Resistant 19 Coagulate Negative Staphylococci, or “MARCoNS,” to identify CIRS. Chronic Inflammatory Response Syndrome, Parliament of Austl., 20 https://www.aph.gov.au/Parliamentary_Business/Committees/House/ Health_Aged_Care_and_Sport/BiotoxinIllnesses/Report/ (last 21 visited Mar. 26, 2021). Some dispute that MARCoNS and CIRS are 22 legitimate medical diagnoses, see, e.g., MARCoNS: Not a Real Diagnosis, LymeScience, https://lymescience.org/marcons/ (last 23 visited Mar. 26, 2021), but the ALJ found CIRS as a medically determinable impairment, and Defendant has not challenged that 24 finding or the validity of the MARCoNS test. 25 8 A decrease in the CD57 lymphocyte subset may be an 26 important marker of chronic Lyme disease. Decreased CD57 Lymphocyte Subset in Patients with Chronic Lyme Disease, 27 Immunology Letters, https://www.sciencedirect.com/science/ article/abs/pii/S0165247800003163?via%3Dihub (last visited Mar. 28 26, 2021). 10 1 have been formed based largely on [Plaintiff’s] subjective 2 complaints with little consideration of positive objective 3 clinical or diagnostic findings.” (Id.) Finally, they were not 4 “support[ed]” by the “objective medical evidence or other medical 5 evidence.” (Id.) She noted that Plaintiff’s “mental status and 6 physical examinations showed no worse than mild level with 7 appropriate mood and affect and normal range of motion and gait.” 8 (AR 50-51 (citing AR 892, 915, 968, 1074).) 9 C. Analysis 10 Dr. Hirschenbein’s opinion was inconsistent with that of 11 internal-medicine consultative examiner Bahaa Girgis, who opined 12 that Plaintiff was capable of a range of medium work with 13 limitations. (AR 867-72.) Therefore, the ALJ needed to provide 14 only a “specific and legitimate reason” for discounting Dr. 15 Hirschenbein’s opinion, Carmickle, 533 F.3d at 1164 (citation 16 omitted), but she failed to do so. 17 As an initial matter, the Court cannot determine whether the 18 ALJ intended all three reasons for discounting the opinions to 19 apply to Dr. Hirschenbein’s opinion because she lumped her 20 discussion of his opinion with that of four other doctors. (AR 21 50.) Although part of her discussion appeared to apply to all of 22 the opinions (see id. (referring to “these opinions”)), she in 23 other parts of her discussion referenced only one of them (see 24 id. (identifying “this opinion” and “the assessment”)). 25 Even assuming the ALJ intended all of her reasons for 26 discounting the opinions to apply to Dr. Hirschenbein’s, none of 27 them were specific and legitimate. First, she concluded that the 28 opinion “failed to reference sufficient medically acceptable 11 1 objective clinical or diagnostic findings to support” it. (Id.) 2 But Dr. Hirschenbein listed in support of his opinion three 3 separate clinical-test results: “positive Lyme Western Blot” and 4 “MARCoNS nasal culture” as well as “low CD57.” (AR 1317.) 5 Defendant argues that the Western Blot test results were negative 6 under criteria established by the Centers for Disease Control. 7 (J. Stip. at 21-22 (citing AR 1289-90).) That is not a reason 8 the ALJ gave, however, and therefore the Court cannot consider 9 it. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 10 (9th Cir. 2009) (district court must “review the ALJ’s decision 11 based on the reasoning and factual findings offered by the ALJ — 12 not post hoc rationalizations that attempt to intuit what the 13 adjudicator may have been thinking” (citations omitted)). 14 But even assuming Defendant is correct, he does not 15 challenge the other two test results relied on by Dr. 16 Hirschenbein, and in any event, Plaintiff’s Lyme-disease 17 diagnosis is not at issue because the ALJ found that Plaintiff 18 had it. (See AR 42.) Although positive Lyme disease and CIRS 19 tests do not necessarily mean that Dr. Hirschenbein’s limitations 20 were warranted, those results did constitute “objective clinical 21 or diagnostic” support for his findings, contrary to the ALJ’s 22 conclusion otherwise. See Morgan v. Colvin, No. 6:12-CV-01235- 23 AA., 2013 WL 6074119, at *10-11 (D. Or. Nov. 13, 2013) (ALJ 24 improperly discounted doctor’s opinion that plaintiff suffered 25 from Lyme disease and mercury poisoning and had several 26 functional limitations from them because opinion was corroborated 27 by positive blood tests and specialist’s opinion). And there are 28 no objective laboratory tests for chronic fatigue syndrome, see 12 1 Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 677 2 (9th Cir. 2011) (as amended), or fibromyalgia, see Benecke v. 3 Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). The ALJ erred in 4 discounting Dr. Hirchenbein’s opinion on this basis. 5 The same is true of the ALJ’s second reason for discounting 6 the opinion: that it was “formed based largely on [Plaintiff’s] 7 subjective complaints with little consideration of positive 8 objective clinical or diagnostic findings.” (AR 50.) As 9 previously noted, Dr. Hirschenbein’s opinion specifically 10 considered objective clinical testing and thus Plaintiff’s 11 subjective complaints were not its sole foundation. Further, a 12 patient’s subjective complaints generally play a significant role 13 in medical opinions on the limitations caused by fibromyalgia and 14 chronic fatigue syndrome. See Revels v. Berryhill, 874 F.3d 648, 15 656-57, 663 (9th Cir. 2017) (because fibromyalgia is marked by 16 normal objective findings and diagnosed based on patient’s 17 subjective complaints, ALJ erred by discounting treating 18 physician’s opinion as unsupported by objective findings); 19 Reddick v. Chater, 157 F.3d 715, 725-26 (9th Cir. 1998) (finding 20 that ALJ’s rejection of doctors’ opinions on premise that they 21 were based on plaintiff’s subjective complaints was “ill-suited” 22 to chronic fatigue syndrome because reasoning ran counter to 23 CDC’s published framework for evaluating and diagnosing it, which 24 recognized that presence of persistent fatigue was necessarily 25 self-reported). Therefore, the ALJ erred in discounting Dr. 26 Hirschenbein’s opinion because it was “formed based largely on” 27 Plaintiff’s subjective complaints. 28 Finally, the ALJ discounted Dr. Hirschenbein’s opinion 13 1 because the objective medical evidence did not support the 2 assessment. She erred, however, in not specifically identifying 3 which aspects of the opinion were inconsistent with which medical 4 evidence. Indeed, a portion of her discussion of this reason 5 referred to a single doctor’s “assessment” (AR 50), so it’s not 6 clear that she even meant this reason to pertain to Dr. 7 Hirschenbein’s functionality findings, and she failed to 8 specifically identify which portions of the opinions she was 9 discrediting on this basis. See Embrey v. Bowen, 849 F.2d 418, 10 421-22 (9th Cir. 1988) (holding that ALJ’s conclusion that 11 doctor’s opinions were contrary to objective findings, including 12 “relative lack of positive findings,” was not sufficiently 13 specific); Weiskopf v. Berryhill, 693 F. App’x 539, 541 (9th Cir. 14 2017) (ALJ’s recitation of portions of physician’s treatment 15 notes and statement that physician’s opinion was inconsistent 16 with notes failed to set forth specific and legitimate reason for 17 rejecting opinion). 18 The ALJ cited several treatment notes as “show[ing] no worse 19 than mild level with appropriate mood and affect and normal range 20 of motion and gait” (AR 51), but she did not specifically discuss 21 any of the “normal” examination findings or explain how those 22 normal findings were inconsistent with the specific limitations 23 Dr. Hirschenbein assessed. This was especially crucial with 24 fibromyalgia and chronic fatigue syndrome, which often manifest 25 with “normal” objective findings. See Revels, 874 F.3d at 665-66 26 (finding that ALJ erred in rejecting physical therapist’s 27 functional-capacity evaluation as “far beyond what is supported 28 by objective testing” because ALJ’s reasoning was based on flawed 14 1 understanding of fibromyalgia, which often shows “normal” 2 examination and test results); Daniel D. v. Comm’r, Soc. Sec. 3 Admin., No. 3:18-cv-00654-HZ, 2019 WL 4467631, at *8 (D. Or. 4 Sept. 17, 2019) (“Plaintiff’s normal range of motion, normal 5 strength, and normal gait are not inconsistent with a diagnosis 6 of chronic fatigue syndrome.”). Therefore, the ALJ’s analysis 7 “does not achieve the level of specificity” required by the Ninth 8 Circuit. Embrey, 849 F.2d at 421. 9 The Court cannot conclude that the ALJ’s failure to 10 specifically identify which aspects of Dr. Hirschenbein’s opinion 11 were inconsistent with which pieces of medical evidence was 12 harmless, cf. Howell v. Comm’r Soc. Sec. Admin., 349 F. App’x 13 181, 184 (9th Cir. 2009) (finding any error in discounting 14 doctor’s opinion based on “fill-in-the blank” form harmless 15 because ALJ provided other appropriate reasons), because as 16 explained, her other reasons were also infirm. And the VE 17 testified at the hearing that there would be no work for a person 18 who would be off task 20 percent of the workday or absent from 19 work at least two or three times a month, as Dr. Hirschenbein 20 opined. (AR 87.) Although there were several medical opinions 21 that conflicted with Dr. Hirschenbein’s, the ALJ did not 22 specifically discuss the findings or opinions of those providers 23 in giving Dr. Hirschenbein’s opinion little weight.9 See Bray, 24 554 F.3d at 1225. Indeed, although Defendant points to the 25 contrary opinions of Drs. Nadella and Girgis and the state-agency 26 27 9 The only thing the ALJ said in this regard was that the five doctors’ opinions were “inconsistent with medical evidence 28 from other medical and nonmedical sources.” (AR 50.) 15 1 reviewing doctors as supporting the ALJ’s rejection of Dr. 2 Hirschenbein’s opinion (see J. Stip. at 10-11), the ALJ in fact 3 also discounted those doctors’ opinion that Plaintiff could 4 perform medium work and found that Dr. Nadella’s opinion “did not 5 consider the combined effect of [Plaintiff’s] impairments and 6 . . . subjective complaints” (AR 50). 7 For all these reasons, the ALJ failed to provide a specific 8 and legitimate reason for discounting Dr. Hirschenbein’s 9 functional assessment, and the error was not harmless. 10 When, as here, an ALJ errs and the error is not harmless, 11 the Court generally has discretion to remand for further 12 proceedings. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th 13 Cir. 2000) (as amended). When no useful purpose would be served 14 by further administrative proceedings, however, or when the 15 record has been fully developed, it is appropriate under the 16 “credit-as-true” rule to direct an immediate award of benefits. 17 Id. at 1179 (noting that “the decision of whether to remand for 18 further proceedings turns upon the likely utility of such 19 proceedings”); see also Garrison v. Colvin, 759 F.3d 995, 1019-20 20 (9th Cir. 2014). The Court has “some flexibility” in applying 21 the credit-as-true rule, however. Connett v. Barnhart, 340 F.3d 22 871, 876 (9th Cir. 2003). This flexibility should be exercised 23 “when the record as a whole creates serious doubt as to whether 24 the claimant is, in fact, disabled within the meaning of the 25 Social Security Act.” Garrison, 759 F.3d at 1021. 26 Because other doctors assessed that Plaintiff could work 27 with limitations, as noted by the ALJ (see generally AR 105-07, 28 867-72, 883-87; see also J. Stip. at 17, 21 (Defendant arguing 16 1 |} same)), the Court has serious doubt as to whether she continues to be disabled. See Garrison, 759 F.3d at 1021. Further, Dr. 3 || Hirschenbein rendered his opinion in July 2018, more than two years after the finding that she was no longer disabled. It is 5 possible that the 2016 decision was correct at the time but that 6 Plaintiff subsequently became disabled again. The record needs 7 || to be developed on that front. Further administrative 8 proceedings would thus allow the ALJ to give proper consideration Dr. Hirschenbein’s opinion and, if she chooses to again give 10 |} little weight to it, provide an adequate discussion of the 11 |} reasons why. For this reason, too, remand is appropriate. See 12 |} id. 13 | VI. CONCLUSION 14 Consistent with the foregoing and under sentence four of 42 159 U.S.C. § 405(g), IT IS ORDERED that judgment be entered REVERSING 16 || the Commissioner’s decision, GRANTING Plaintiff’s request for 17 |} remand, and REMANDING this action for further proceedings 18 |} consistent with this Memorandum Decision. 19 i f WIL 50 | paren: March 29, 2021 JEAN ROSENBLUTH 21 U.S. Magistrate Judge 22 23 24 25 26 27 28 17