Jesus Mendez Reyes v. Nancy A. Berryhill

• Court: District Court, C.D. California
• Decided: September 17, 2019
• Docket: 2:18-cv-07748
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JESUS MENDEZ REYES, Case No. CV 18-7748 AS 12 Plaintiff, MEMORANDUM OPINION 13 v. 14 ANDREW M. SAUL,1 Commissioner AND ORDER OF REMAND of Social Security, 15 Defendant. 16

17 For the reasons discussed below, IT IS HEREBY ORDERED that, 18 pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is 19 remanded for further administrative action consistent with this 20 Opinion. 21 22 23 24 25 26 1 Andrew M. Saul, Commissioner of Social Security, is 27 substituted for his predecessor. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). 28 1 PROCEEDINGS 2 3 On September 6, 2018, Plaintiff filed a Complaint seeking 4 review of the Commissioner's denial of Plaintiff’s applications 5 for disability insurance benefits (“DIB”) and supplemental security 6 income (“SSI”). (Dkt. No. 1). On March 4, 2019, Defendant filed 7 an Answer and the Administrative Record (“AR”). (Dkt. Nos. 16- 8 17). On June 3, 2019, the parties filed a joint stipulation setting 9 forth their respective positions regarding Plaintiff’s claims. 10 (“Joint Stip.,” Dkt. No. 18). The parties have consented to proceed 11 before the undersigned United States Magistrate Judge. (Dkt. Nos. 12 9, 22-23). 13 14 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 15 16 On April 1, 2015, Plaintiff, formerly employed as a 17 caregiver/companion and a psychiatric technician, constructively 18 filed applications for DIB and SSI alleging a disability onset 19 date of May 1, 2007. (AR 202-18, 267). Plaintiff’s applications 20 were denied initially on August 27, 2015, (AR 118, 145-49), and 21 on reconsideration on December 8, 2015. (AR 141-42, 151-55). 22 23 On June 15, 2017, Administrative Law Judge Henry Koltys 24 (“ALJ”) heard testimony from Plaintiff, who was represented by 25 counsel, and vocational expert (“VE”) Sharon Spaventa. (See AR 26 73-100). At the hearing, upon the ALJ’s suggestion, Plaintiff 27 amended his alleged onset date to “October 2014.” (AR 79-80). On 28 October 3, 2017, the ALJ issued a decision acknowledging 1 Plaintiff’s amended onset date as October 1, 2014, and denying 2 Plaintiff’s application upon concluding that Plaintiff has not 3 been disabled since that date. (See AR 52-57). 4 5 The ALJ applied the requisite five-step process to evaluate 6 Plaintiff’s case. At step one, the ALJ found that Plaintiff has 7 not engaged in substantial gainful activity since October 1, 2014, 8 the amended alleged onset date. (AR 54). At step two, the ALJ 9 found that Plaintiff’s diabetes mellitus, hypertension, and 10 history of prostate cancer are severe impairments.2 (Id.). At 11 step three, the ALJ determined that Plaintiff’s impairments do not 12 meet or equal a listing found in 20 C.F.R Part 404, Subpart P, 13 Appendix 1. (AR 55). 14 15 Next, before proceeding to step four, the ALJ found that 16 Plaintiff has the Residual Functional Capacity (“RFC”)3 to perform 17 “medium work,” except that he can “frequently climb ramps/stairs; 18 frequently crawl [or] kneel; [and] occasionally stoop, crouch, 19 climb ladders, ropes, [and] scaffolds.” (Id.). At step four, the 20 ALJ determined that Plaintiff is capable of performing his past 21 relevant work as a companion and psychiatric technician. (AR 57). 22 23 24

25 2 The ALJ found Plaintiff’s alleged diagnosis of myasthenia gravis to be a non-severe impairment. (AR 54-55). 26 3 A Residual Functional Capacity is what a claimant can 27 still do despite existing exertional and nonexertional limitations. See 20 C.F.R §§ 404.1545(a)(1), 416.945(a)(1). 28 1 Accordingly, the ALJ concluded that Plaintiff is not disabled. 2 (Id.). 3 4 Following the ALJ’s decision, Plaintiff submitted a request 5 for review to the Appeals Council (AR 198-200), along with a 6 supporting brief from his attorney (AR 337), and additional medical 7 evidence (AR 25-47, 62-63). On July 12, 2018, the Appeals Council 8 denied Plaintiff’s request to review the ALJ’s decision. (See AR 9 1-4). Plaintiff now seeks judicial review of the ALJ’s decision, 10 which stands as the final decision of the Commissioner. See 42 11 U.S.C. §§ 405(g), 1383(c). 12 13 STANDARD OF REVIEW 14 15 This Court reviews the Commissioner’s decision to determine 16 if: (1) the Commissioner’s findings are supported by substantial 17 evidence; and (2) the Commissioner used proper legal standards. 42 18 U.S.C § 405(g); see Carmickle v. Comm’r, 533 F.3d 1155, 1159 (9th 19 Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). 20 “Substantial evidence is more than a scintilla, but less than a 21 preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 22 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 23 1997)). It is relevant evidence “which a reasonable person might 24 accept as adequate to support a conclusion.” Hoopai, 499 F. 3d at 25 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). To 26 determine whether substantial evidence supports a finding, “a court 27 must ‘consider the record as a whole, weighing both evidence that 28 supports and evidence that detracts from the [Commissioner’s] 1 conclusion.’ ” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2 2001) (citation omitted); see Widmark v. Barnhart, 454 F.3d 1063, 3 1066 (9th Cir. 2006) (inferences “reasonably drawn from the record” 4 can constitute substantial evidence). 5 6 This Court “may not affirm [the Commissioner’s] decision 7 simply by isolating a specific quantum of support evidence, but 8 must also consider evidence that detracts from [the Commissioner’s] 9 conclusion.” Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) 10 (citation and internal quotation marks omitted). However, the 11 Court cannot disturb findings supported by substantial evidence, 12 even though there may exist other evidence supporting the 13 plaintiff’s claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th 14 Cir. 1973). “If the evidence can reasonably support either 15 affirming or reversing the [Commissioner’s] conclusion, [a] court 16 may not substitute its judgment for that of the [Commissioner].” 17 Reddick, 157 F.3d 715, 720-21 (9th Cir. 1998) (citation omitted). 18 19 PLAINTIFF’S CONTENTIONS 20 21 Plaintiff alleges that (1) the ALJ erred in evaluating the 22 medical evidence; (2) the ALJ erred in assessing Plaintiff’s 23 subjective symptoms; and (3) the ALJ’s decision is not supported 24 by substantial evidence in light of additional records submitted 25 to the Appeals Council. (See Joint Stip. at 3-23). 26 27 28 1 DISCUSSION 2 3 After consideration of the record as a whole, for the reasons 4 discussed below, it is recommended that the decision be remanded 5 for further consideration because the ALJ erred in discrediting 6 Plaintiff’s subjective symptom testimony. Because the case 7 warrants remand on this basis, Plaintiff’s other contentions need 8 not be addressed here.4 9

10 4 One of Plaintiff’s contentions, pertaining to the ALJ’s 11 assessment of the medical evidence (Issue 1), is that the ALJ erred by not considering the records that pre-dated Plaintiff’s amended 12 alleged onset date of October 1, 2014. (Joint Stip. at 6-7). While arguing that these records were relevant because they shed light 13 on the post-2014 period, Plaintiff also states: 14 Should the Commissioner argue that these records are irrelevant because they pre-date the alleged onset date, 15 plaintiff contends any amendment of the onset date was 16 not done voluntarily. [Plaintiff] did not knowingly and voluntarily amend his onset date. There is no indication 17 in the record that he understood the ramifications of amending his onset date, nor was there great discussion 18 of his earnings, and whether they actually satisfied the legal standard for SGA. 19 (Id. at 6 (citing AR 79)). Because Plaintiff raises this argument 20 only briefly, without further support, and merely as an alternative 21 argument within a sub-issue, the Court need not address it here based on the Court’s determination that the case should be remanded 22 on a separate issue. 23 Nevertheless, the Court notes that Plaintiff was present and represented by counsel at the hearing when his counsel agreed with 24 the ALJ that the onset date should be amended from 2007 to 2014, and nothing in the record suggests coercion or deception. (See AR 25 79-80); see also Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) 26 (absent a showing of coercion or deception, plaintiff is bound by his agreement and the agreement of his representative to amend the 27 disability onset date) (citing 20 C.F.R. § 416.1510(a)(3)(4)); Town of N. Bonneville v. Callaway, 10 F.3d 1505, 1509 (9th Cir. 1993) 28 (“In the absence of egregious circumstances, parties are generally 1 A. Legal Standard for Assessing Subjective Symptom Testimony 2 3 When assessing a claimant’s credibility regarding subjective 4 pain or intensity of symptoms, the ALJ must engage in a two-step 5 analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). 6 First, the ALJ must determine if there is medical evidence of an 7 impairment that could reasonably produce the symptoms alleged. 8 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). “In this 9 analysis, the claimant is not required to show that her impairment 10 could reasonably be expected to cause the severity of the symptom 11 she has alleged; she need only show that it could reasonably have 12 caused some degree of the symptom.” Id. (emphasis in original) 13 (citation omitted). “Nor must a claimant produce objective medical 14 evidence of the pain or fatigue itself, or the severity thereof.” 15 Id. (citation omitted). 16 17 If the claimant satisfies this first step, and there is no 18 evidence of malingering, the ALJ must provide specific, clear and 19 convincing reasons for rejecting the claimant’s testimony about 20 the symptom severity. Trevizo, 871 F.3d at 678 (citation omitted); 21 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the 22 bound by the admissions of their attorney, including oral 23 admissions.”). Plaintiff also does not point to any evidence to dispute that in 2013 he earned $22,930.16 in his job as a companion 24 at Help Unlimited Inc. (See AR 79, 242, 245-46). Plaintiff’s counsel agreed with the ALJ’s suggestion to amend the onset date 25 because these earnings qualified the job as substantial gainful 26 activity (“SGA”) in 2013, under agency regulations. (AR 79-80); see 20 C.F.R. § 404.1574; Social Security Administration, 27 “Substantial Gainful Activity,” https://www.ssa.gov/oact/cola/sga. html (last visited July 1, 2019). 28 1 claimant’s testimony regarding the severity of her symptoms only 2 if he makes specific findings stating clear and convincing reasons 3 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 4 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 5 based on affirmative evidence thereof, he or she may only find an 6 applicant not credible by making specific findings as to 7 credibility and stating clear and convincing reasons for each.”). 8 “This is not an easy requirement to meet: The clear and convincing 9 standard is the most demanding required in Social Security cases.” 10 Garrison, 759 F.3d at 1015 (citation omitted). 11 12 In discrediting the claimant’s subjective symptom testimony, 13 the ALJ may consider the following: 14 15 (1) ordinary techniques of credibility evaluation, such 16 as the claimant’s reputation for lying, prior 17 inconsistent statements concerning the symptoms, and 18 other testimony by the claimant that appears less than 19 candid; (2) unexplained or inadequately explained 20 failure to seek treatment or to follow a prescribed 21 course of treatment; and (3) the claimant’s daily 22 activities. 23 24 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 25 omitted). Inconsistencies between a claimant’s testimony and 26 conduct, or internal contradictions in the claimant’s testimony, 27 also may be relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th 28 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1 1997). In addition, the ALJ may consider the observations of 2 treating and examining physicians regarding, among other matters, 3 the functional restrictions caused by the claimant’s symptoms. 4 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, 5 it is improper for an ALJ to reject subjective testimony based 6 “solely” on its inconsistencies with the objective medical evidence 7 presented. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 8 (9th Cir. 2009) (citation omitted). 9 10 Further, the ALJ must make a credibility determination with 11 findings that are “sufficiently specific to permit the court to 12 conclude that the ALJ did not arbitrarily discredit claimant’s 13 testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 14 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 15 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 16 credible must be sufficiently specific to allow a reviewing court 17 to conclude the adjudicator rejected the claimant’s testimony on 18 permissible grounds and did not arbitrarily discredit a claimant’s 19 testimony regarding pain.”) (citation omitted). Although an ALJ’s 20 interpretation of a claimant’s testimony may not be the only 21 reasonable one, if it is supported by substantial evidence, “it is 22 not [the court’s] role to second-guess it.” Rollins v. Massanari, 23 261 F.3d 853, 857 (9th Cir. 2001). 24 25 B. Analysis 26 27 The ALJ found that Plaintiff’s “medically determinable 28 impairments could reasonably be expected to cause the alleged 1 symptoms,” but that Plaintiff’s “statements concerning the 2 intensity, persistence and limiting effects of these symptoms are 3 not entirely consistent with the medical evidence and other 4 evidence in the record for the reasons explained in th[e] 5 decision.” (AR 56). However, the ALJ offered little explanation 6 for this finding, and failed to clarify which of Plaintiff’s 7 statements he found credible or not credible and why. See Brown- 8 Hunter, 806 F.3d at 493 (“The ALJ . . . failed to identify 9 specifically which of Brown–Hunter’s statements she found not 10 credible and why.”); Knape v. Berryhill, 734 F. App’x 500, 501 (9th 11 Cir. 2018) (“The ALJ failed to identify the parts of Knape’s mental 12 health symptom testimony he found not credible and failed to 13 provide any links to the record.”); Fritz v. Berryhill, 685 F. 14 App’x 585, 586 (9th Cir. 2017) (“[T]he ALJ did not identify what 15 testimony was not credible and what evidence undermined Fritz’s 16 complaints.”). 17 18 The ALJ’s credibility determination was partly based on 19 Plaintiff’s daily activities. An ALJ properly may consider the 20 claimant’s daily activities in weighing credibility. Tommasetti, 21 533 F.3d at 1039. Here, the ALJ specifically referenced 22 Plaintiff’s testimony about caring for his son who has bipolar 23 disorder as a daily activity that undermined the credibility of 24 his symptom testimony, (AR 56), stating, “[Plaintiff] said that he 25 takes him to appointments and cooks for him. He said that he does 26 basketball and golfing with him,” and concluding, without further 27 explanation, that “[t]hese activities are not consistent with 28 [Plaintiff’s] allegations of disability.” (Id.). 1 The ALJ’s account of Plaintiff’s activities is misleading. 2 For example, although Plaintiff testified that he and his son “play 3 basketball,” he clarified this by explaining: “We don't play, but 4 we’ll be shooting a round. We shoot around baskets. He does. I 5 throw him the ball. That’s all.” (AR 88). When asked if he can 6 dribble the ball, Plaintiff replied: “No, no. I just throw them 7 (sic) the ball. He wants to be a basketball player, so I stand on 8 the court and throw him the ball. That’s about it.” (AR 89). As 9 for golfing, Plaintiff testified that he “take[s his] son golfing,” 10 and “teach[es] him the fundamentals.” (AR 89). He stated, however, 11 that he cannot swing a golf club. (Id.). He instead teaches his 12 son “[j]ust the poses and how to grab, the grip.” (Id.). Plaintiff 13 also testified that he cooks for his son, but he clarified that he 14 makes only “Breakfast, eggs, toast.” (AR 88). 15 16 While the ALJ correctly noted that Plaintiff testified that 17 he takes his son to appointments (AR 56, 88), Plaintiff did not 18 indicate whether he drove to appointments. The record suggests 19 that Plaintiff may have been unable to drive or read due to vision 20 impairment caused by myasthenia gravis, a chronic autoimmune 21 neuromuscular disease, during at least some part of the relevant 22 period. (See AR 768 (January 2016 note from Dr. Neda Heidari, 23 M.D., stating that Plaintiff was “unable to work and drive”); see 24 also AR 84, 86-87, 318 (January 2016 disability report, stating: 25 “Cannot read and vision is blurry. No longer allowed to drive, per 26 doctors orders.”)).5 At the hearing on June 15, 2017, Plaintiff 27 5 Dr. Heidari is a neurologist who has treated Plaintiff 28 for myasthenia gravis. (AR 82-83, 95-96). Plaintiff testified at 1 testified that his myasthenia gravis was being treated with 2 medication, along with infusions three times per month, but he 3 stated that the medication only “sometimes” helped the vision 4 problem. (AR 87). 5 6 7 the hearing that he had been seeing Dr. Heidari for about three 8 years, and saw her every three or four months. (AR 96). The ALJ discredited Dr. Heidari’s opinion because there was no support or 9 reasoning provided for it. (AR 56). It appears that none of Dr. Heidari’s treatment records were part of the record when the ALJ 10 issued his decision. For that reason, the ALJ also found that the evidence failed to establish a medically determinable impairment 11 of myasthenia gravis. (AR 54-55). However, Plaintiff later 12 submitted additional records to the Appeals Council, including medical records documenting IV infusion treatment by Dr. Heidari 13 in November 2017 and scheduling follow-up treatment (AR 29-37, 40- 43, 46, 62-63); a brief, handwritten note from Dr. Heidari stating 14 that Plaintiff “is unable to work due to his neuromuscular condition & dependency on his IV meds” (AR 45); and several pages 15 of general information about myasthenia gravis, such as how it 16 causes muscle weakness and impairs the functioning of eyes and limbs and the ability to swallow, among other things (AR 25-28, 17 38-39, 44, 47). The Appeals Council reviewed these documents and determined that most of them were too recent to relate to the 18 alleged period of disability, and a consideration of the other documents did not raise a reasonable probability that they would 19 change the ALJ’s unfavorable decision. (AR 1-2). 20 Although these additional documents do not specifically 21 illuminate the nature, extent, or duration of Plaintiff’s condition and treatments, they are at least consistent with Plaintiff’s 22 testimony that he was diagnosed with myasthenia gravis; that he has experienced impaired eyesight, arm and leg weakness, difficulty 23 swallowing, and other symptoms; and that Dr. Heidari has been treating him with medication and IV infusions. (AR 81-87, 94-96). 24 This Court considers these records in reviewing the Commissioner’s 25 decision. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (“[W]hen the Appeals Council considers new 26 evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the 27 district court must consider when reviewing the Commissioner’s final decision for substantial evidence.”). 28 1 Aside from citing to Plaintiff’s daily activities, the ALJ 2 also found that Plaintiff’s medical records did not “show the types 3 of serious symptoms and dysfunction that would be expected were 4 [Plaintiff] as limited as alleged.” (AR 56). The ALJ primarily 5 found that Plaintiff’s conservative treatment with medications was 6 inconsistent with Plaintiff’s allegations of disability, noting, 7 for example, that Plaintiff “was not referred to an orthopedic 8 surgeon for his back pain and was solely managed with pain 9 medications, suggesting that this conservative treatment was 10 sufficient in controlling [Plaintiff’s] symptoms.” (Id.). 11 12 However, the ALJ did not address the extent to which other 13 treatments may not have eliminated certain persistent, disruptive 14 symptoms. Most notably, the ALJ did not discuss Plaintiff’s 15 urinary incontinence, a condition that has apparently persisted, 16 without improvement, since Plaintiff’s prostate surgery in 2007. 17 (See AR 80, 83-84, 341, 368, 466-70, 553, 599, 633, 674, 686, 689- 18 90). Plaintiff testified that his urinary incontinence requires 19 him to use about ten diapers a day. (AR 84). He has also stated 20 that he leaks urine so much that he “put[s] on 2 Depends [adult 21 diapers, and] in 2 [hours] both are soak[ed].” (AR 261 (April 2015 22 questionnaire)). He reported that he needed to change his diaper 23 “every one and a half hours.” (AR 292 (November 2015 disability 24 report)). Plaintiff also stated, that he needs to use the bathroom 25 every fifteen minutes. (AR 263 (April 2015 questionnaire), 296 26 (November 2015 disability report)). Plaintiff testified that he 27 cannot lift anything over ten pounds “[w]ithout leaking [urine].” 28 (AR 94). 1 Plaintiff reported that his urinary incontinence was the 2 primary reason why he stopped working at his part-time companion 3 job in October 2014. (See AR 253 (reason why he stopped working: 4 “Part Time Job unable to hold urine”)). He testified that he just 5 “couldn’t do [the job] no more,” and explained that he was “working 6 only two hours” and “sometimes [he] didn’t even come in because 7 [he] urinated on [him]self.”6 (AR 79). He stated that his urine 8 “just kept on flowing.” (AR 83). Plaintiff’s medical records 9 confirm that Plaintiff suffered from urinary incontinence and wore 10 diapers. (See, e.g., AR 338, 341, 380, 553, 599, 633, 674, 686, 11 689-90). It does not appear from the record that Plaintiff received 12 any treatment to alleviate this condition. Plaintiff testified 13 that the only related treatment he receives is for “urine 14 infections.” (AR 84). 15 16 The ALJ did not discuss Plaintiff’s urinary incontinence in 17 the decision, aside from briefly mentioning that Plaintiff had 18 6 Plaintiff presumably meant that he worked only two hours 19 per day, but the record is unclear. The transcript reads: “I was working only two hours [PHONETIC], and sometimes I didn’t even come 20 in because I urinated on myself.” (AR 79) (brackets in original). 21 The companion job at Help Unlimited Inc. that Plaintiff left 22 in 2014 was part-time but it qualified as SGA under agency regulations because Plaintiff earned $22,930.16 in 2013. (See AR 23 79, 242, 245-46); see also 20 C.F.R. § 404.1574; Social Security Administration, “Substantial Gainful Activity,” https://www.ssa. 24 gov/oact/cola/sga.html (last visited July 1, 2019). Plaintiff 25 appears to have first worked for Help Unlimited Inc. in 2008 – the year after his 2007 prostate surgery (AR 80) – but 2013 was the 26 only year in which he received SGA-level earnings. (AR 242, 245- 46). In other years he earned considerably less: $566 (2008), $0 27 (2009), $8,250 (2010), $5,524 (2011), $10,457 (2012), and $5,162.94 (2014). (AR 245-46). 28 1 complained of the condition and his primary physician had noted 2 it. (AR 55-56). Moreover, none of the daily activities or medical 3 evidence that the ALJ relied on to discredit Plaintiff’s subjective 4 symptom testimony are inconsistent with Plaintiff’s statements 5 about incontinence. Despite this, the ALJ does not appear to have 6 accounted for any incontinence-related problems when determining 7 Plaintiff’s RFC, or asked the VE at the hearing whether Plaintiff’s 8 ability to work would be limited by any incontinence-related 9 problems. (AR 55, 98-99). As noted above, based on Plaintiff’s 10 statements, such problems included the need to use the bathroom 11 every fifteen minutes and/or change his diaper every hour and a 12 half, and an inability to lift anything over ten pounds without 13 leaking urine. (See AR 84, 92, 264, 292, 296). 14 15 The ALJ did not provide any explanation for failing to take 16 Plaintiff’s statements about his incontinence into account in 17 assessing Plaintiff’s ability to work. The ALJ instead simply 18 limited Plaintiff to “medium work,” with the ability to “frequently 19 climb ramps/stairs; frequently crawl [or] kneel; [and] occasionally 20 stoop, crouch, climb ladders, ropes, [and] scaffolds.” (AR 55). 21 The ALJ then relied on the VE’s testimony to conclude that 22 Plaintiff, with this RFC, could work in his two past relevant jobs 23 (AR 57, 99) – one of which predated Plaintiff’s incontinence, and 24 the other of which lasted only a year with SGA-level earnings, and 25 allegedly ended due to incontinence. (See AR 79-80, 242-245-46, 26 253-54). 27 28 1 In sum, the ALJ rejected Plaintiff’s subjective statements as 2 inconsistent with his daily activities and conservative treatment, 3 but failed to support this finding with clear and convincing 4 reasons that were supported by substantial evidence in the record. 5 6 C. Remand Is Warranted 7 8 The decision whether to remand for further proceedings or 9 order an immediate award of benefits is within the district court’s 10 discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 11 2000). Where no useful purpose would be served by further 12 administrative proceedings, or where the record has been fully 13 developed, it is appropriate to exercise this discretion to direct 14 an immediate award of benefits. Id. at 1179 (“[T]he decision of 15 whether to remand for further proceedings turns upon the likely 16 utility of such proceedings.”). However, where, as here, the 17 circumstances of the case suggest that further administrative 18 review could remedy the Commissioner’s errors, remand is 19 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 20 Harman v. Apfel, 211 F.3d at 1179-81. Because outstanding issues 21 must be resolved before a determination of disability can be made, 22 and “the record as a whole creates serious doubt as to whether 23 [Plaintiff], in fact, is disabled within the meaning of the Social 24 Security Act,” further administrative proceedings would serve a 25 useful purpose and remedy defects. Burrell v. Colvin, 775 F.3d 26 1133, 1141 (9th Cir. 2014)(citations omitted). 27 28 1 ORDER 2 3 For the reasons discussed above, the decision of the 4 Commissioner is reversed, and the matter is remanded for further 5 proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: September 17, 2019. 10 /s/ _________ 11 ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 12 13

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