Langenberg v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: March 22, 2022
• Docket: 2:21-cv-00887
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JULIAN L., Case No. C21-887 TLF 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S COMMISSIONER OF SOCIAL SECURITY, DECISION TO DENY BENEFITS 9 Defendant. 10

11 Plaintiff has brought this matter for judicial review of defendant’s denial of his 12 applications for disability insurance and supplemental security income (SSI) benefits. 13 The parties have consented to have this matter heard by the undersigned 14 Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule 15 MJR 13. 16 I. ISSUES FOR REVIEW 17 A. Whether the ALJ Properly Evaluated the Medical Opinion Evidence 18 B. Whether the ALJ Properly Evaluated Plaintiff’s Subjective Symptom 19 Testimony 20 C. Whether the ALJ Properly Assessed the RFC 21 II. BACKGROUND 22 On December 31, 2018, plaintiff filed a Title II application for a period of disability 23 and Title XVI application for SSI, alleging in both applications a disability onset date of 24 March 1, 2018. Administrative Record (“AR”) 79. Plaintiff’s applications were denied 1 upon official review and upon reconsideration (AR 91, 104, 150, 166). A hearing was 2 held before Administrative Law Judge (“ALJ”) Susan Smith on December 2, 2020. AR 3 36–76. On December 21, 2020, ALJ Smith issued a decision finding that plaintiff was 4 not disabled. AR 12–35. 5 Plaintiff seeks judicial review of the ALJ’s December 21, 2020 decision. Dkt. 11.

6 III. STANDARD OF REVIEW 7 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s 8 denial of Social Security benefits if the ALJ’s findings are based on legal error or not 9 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 10 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.” Biestek v. 12 Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). 13 IV. DISCUSSION 14 In this case, the ALJ found that plaintiff’s severe impairments are: multiple 15 sclerosis (MS), mood disorder, and neurocognitive disorder. AR 18. Based on the 16 limitations stemming from these impairments, the ALJ found that plaintiff has the 17 residual functional capacity (RFC) to perform light work. AR 19. Relying on vocational 18 expert (“VE”) testimony, the ALJ found at step four that plaintiff could not perform his 19 past relevant work but could perform other jobs that exist in significant numbers in the 20 national economy; therefore, the ALJ determined at step five that plaintiff was not 21 disabled. AR 28-30. 22

24 1 A. Whether the ALJ Properly Evaluated Medical Opinion Evidence 2 Plaintiff assigns error to the ALJ’s evaluation of the medical opinions of Patricia 3 Kraft, Ph.D. and Richard Mesher, M.D. Dkt. 11, pp. 3–14. 4 1. Medical Opinion Standard of Review 5 Under current Ninth Circuit precedent, an ALJ must provide “clear and

6 convincing” reasons to reject the uncontradicted opinions of an examining doctor, and 7 “specific and legitimate” reasons to reject the contradicted opinions of an examining 8 doctor. See Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). 9 The Social Security Administration changed the regulations applicable to 10 evaluation of medical opinions; hierarchy among medical opinions has been eliminated, 11 but ALJs are required to explain their reasoning and specifically address how they 12 considered the supportability and consistency of each opinion. See 20 C.F.R. § 13 416.920c; Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. 14 Reg. 5844-01 (Jan. 18, 2017).

15 Regardless of whether a claim pre- or post-dates this change to the regulations, 16 an ALJ’s reasoning must be supported by substantial evidence and free from legal 17 error. Ford v. Saul, 950 F.3d 1141, 1153-56 (9th Cir. 2020) (citing Tommasetti v. Astrue, 18 533 F.3d 1035, 1038 (9th Cir. 2008)); see also Murray v. Heckler, 722 F.2d 499, 501–02 19 (9th Cir. 1983). 20 Under 20 C.F.R. § 416.920c(a), (b)(1)-(2), the ALJ is required to explain whether 21 the medical opinion or finding is persuasive, based on whether it is supported and 22 whether it is consistent. 23 24 1 2. Opinion of Dr. Kraft 2 Patricia Kraft, Ph.D. evaluated plaintiff on November 19, 2019, by reviewing his 3 medical records. AR 141-143, 147-148. She opined that plaintiff retained the capacity 4 to: carry out simple instructions. But she found moderate limitations concerning 5 plaintiff’s ability to continuously maintain concentration, persistence, and pace (CPP) for

6 up to two hours; maintain adequate attendance; and complete a normal 7 workday/workweek within normal tolerances of a competitive workplace. AR 148. Dr. 8 Kraft further opined that due to plaintiff’s mental health symptoms, there would be 9 occasional interruption in his workday “related to CPP” and he would occasionally miss 10 work. AR 148. 11 The ALJ found Dr. Kraft’s opinion unpersuasive because (1) it was inconsistent 12 with the objective medical evidence, (2) inconsistent with plaintiff’s daily activities, and 13 (3) plaintiff refused treatment. Plaintiff argues that the ALJ erred by failing to consider 14 the latter part of Dr. Kraft’s opinion—that there would be interruption in his workday

15 related to CPP and that plaintiff would occasionally miss work. Dkt. 11, p. 6. 16 With regards to the ALJ’s first reason, a finding that a 17 physician's opinion is inconsistent with the medical record may serve as a specific and 18 legitimate reason for discounting it. See 20 C.F.R. §§ 19 404.1527(c)(4), 416.927(c)(4); Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 20 2014) (An ALJ may give less weight to medical opinions that conflict with treatment 21 notes). 22 Here, in discounting Dr. Kraft’s opinion, the ALJ pointed to evidence of plaintiff’s 23 neurological examinations showing intact cognition, memory and concertation within 24 1 normal limits, and normal mood. AR 493, 551, 557, 607, 724, 783-84, 793, 885, 871, 2 875, 879, 888-89, 893. Other cited evidence included examinations from five 3 appointments showing plaintiff’s intact memory. AR 793, 798, 803, 808, 813. The Court 4 notes that it is specifically stated in these five records that no examinations took place 5 as the appointments were conducted remotely and the results were forwarded from a

6 previous exam for “continuity.” But even after taking this into consideration, the 7 evidence cited by the ALJ still substantially supports the finding that Dr. Kraft’s opinion 8 was inconsistent with objective medical evidence, therefore the ALJ has provided a 9 valid reason to discount Dr. Kraft’s opinion. 10 Plaintiff contends that in discounting Dr. Kraft’s opinion, the ALJ also improperly 11 failed to consider other medical evidence and provides a summary of evidence 12 concerning plaintiff’s fatigue and complaints. Dkt. 11, pp. 8–9. However, plaintiff has 13 specifically assigned error only to the ALJ’s evaluation of Dr. Kraft’s opinion regarding 14 plaintiff’s mental health systems affecting his ability to maintain CPP. Accordingly, the

15 Court will not consider plaintiff’s other challenges to the ALJ’s evaluation of Dr. Kraft’s 16 opinion. Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1161 n. 2 (9th 17 Cir. 2008) (quoting Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th 18 Cir. 2003)). 19 Further, because the Court has found that the ALJ relied on substantial evidence 20 in discounting Dr. Kraft’s opinion, there is no need for the Court to analyze whether the 21 ALJ committed error by discounting it because it was inconsistent with plaintiff’s daily 22 activities or because plaintiff refused treatment. Any errors committed based on those 23 24 1 grounds would be harmless. See Carmickle, 533 F.3d at 1162-1163 (inclusion of 2 erroneous reasons is harmless). 3 3. Opinion of Dr. Mesher 4 Richard Mesher, M.D., plaintiff’s treating neurologist, evaluated plaintiff on 5 several occasions during the relevant period. Plaintiff specifically challenges the ALJ’s

6 evaluation of Dr. Mesher’s opinion from October 31, 2019. Dkt. 11, p. 11. In that 7 opinion, Dr. Mesher identified that plaintiff has the following symptoms as a result of his 8 MS diagnosis: fatigue, balance problems, difficulty remembering, depression, difficulty 9 solving problems, and double or blurred vision/partial. AR 618. Dr. Mesher opined that 10 plaintiff’s experience of pain, fatigue, and other symptoms will frequently (20% or more 11 of day) interfere with attention and concentration within a competitive, full time work 12 environment. AR 619. 13 The Commissioner argues that the new Social Security regulations have affected 14 the legal standards an ALJ must use when evaluating medical opinions, and that this

15 Court should abandon the “clear and convincing” and “specific and legitimate” legal 16 standards used for when rejecting opinions of an examining physician. Dkt. 12, pp. 7–8. 17 The Ninth Circuit has not yet considered the 2017 regulations, or whether the 18 change in regulations will cause the Court of Appeals to reevaluate its holdings 19 regarding the legal standards of “clear and convincing” or “specific and legitimate.” The 20 Court is bound by precedent of the Ninth Circuit and may not overrule a decision of the 21 United States Court of Appeals for the Ninth Circuit. See In re Albert-Sheridan, 960 F.3d 22 1188, 1192–93 (9th Cir. 2020) (the decision of a three-judge panel of the Ninth Circuit 23 cannot be overruled by a different three-judge panel; only a decision of the en banc 24 1 panel of the Ninth Circuit, or a decision of the United States Supreme Court, may 2 overturn a decision of a three-judge panel of the Ninth Circuit); In re Walldesign, Inc., 3 872 F.3d 954, 969 (9th Cir. 2017) (unless there is intervening Supreme Court or Ninth 4 Circuit en banc precedent, a legal test that has been adopted by a three-judge panel will 5 not be overturned); Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (published

6 opinions of a three-judge panel are binding authority in the Ninth Circuit, unless a 7 published opinion is overturned by an en banc decision, or the United States Supreme 8 Court). 9 The Ninth Circuit has repeatedly held that an ALJ must have specific, legitimate 10 reasons supported by substantial evidence in order to reject or discount the opinion of 11 an examining doctor, if the opinion is contradicted by another doctor’s opinion. See 12 Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995); Ryan v. Commissioner of Social 13 Sec., 528 F.3d 1194, 1198-99 (9th Cir. 2008). The “specific and legitimate reasons” 14 language used by the Ninth Circuit in precedent is an appellate standard – established

15 in Murray v. Heckler, 722 F.2d 499, 501–02 (9th Cir. 1983), for determining whether the 16 ALJ erred; it is not an interpretation of the Social Security statutes or the 2017 revisions 17 to the federal regulations promulgated by the Social Security Administration. Cf. Kisor v. 18 Wilkie, 139 S.Ct. 2400, 2412-2418 (2019) (explaining the Court gives Auer deference 19 only if the agency’s rule is ambiguous, the agency’s interpretation is reasonable, and it 20 is an authoritative and considered judgment of the agency); Larson v. Saul, 967 F.3d 21 914, 925 (9th Cir. 2020) (recognizing the Social Security Administration has authority to 22 make rules carrying the force of law, under 42 U.S.C. § 405(a)). Therefore, the Social 23 Security Administration’s new regulations cannot supersede this long-standing 24 1 substantive legal standard, which is subject to stare decisis as precedent from the Ninth 2 Circuit Court of Appeals. See Kathleen G. v. Comm'r of Soc. Sec., No. C20-461 RSM, 3 2020 WL 6581012, at *3 (W.D. Wash. Nov. 10, 2020) (finding the new regulations do 4 not clearly supersede the “specific and legitimate” standard because the “specific and 5 legitimate” standard refers not to how an ALJ should weigh or evaluate opinions, but

6 rather the standard by which the Court evaluates whether the ALJ has reasonably 7 articulated his or her consideration of the evidence). 8 In this case, Dr. Mesher’s opinion was contradicted by the opinions of state 9 agency consultants. AR 102, 148, 164. The Court will therefore consider whether the 10 ALJ specifically and legitimately explained how the ALJ considered the supportability 11 and consistency factors regarding Dr. Mesher’s opinions. Ryan, 528 F.3d at 1198–99. 12 Here, plaintiff challenges the ALJ’s finding that – Dr. Mesher’s opinion is 13 unpersuasive because (1) his own treatment notes, and (2) the objective medical 14 evidence, indicate that plaintiff’s symptoms are not as severe as provided in his opinion.

15 Dkt. 11, p. 11–14. 16 With respect to the ALJ’s first reason, an ALJ may discount an examining 17 doctor's opinion based on inconsistencies with the doctor's own notes. See Tommasetti 18 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Here, the ALJ pointed to a December 19 2019 treatment note by Dr. Mesher describing that plaintiff had “no new neurological 20 symptoms,” was “relatively stable neurologically,” “alert, oriented, conversant,” and “not 21 experiencing a lot of pain at this point.” AR 711-12. Yet the ALJ disregards other 22 portions of that note indicating plaintiff continued to experience significant psychological 23 problems. AR 711. 24 1 The ALJ also reasoned that Dr. Mesher’s treatment notes failed to mention 2 plaintiff’s headaches or profound fatigue—but this is not supported by the record, as his 3 notes often discussed plaintiff’s MS symptoms. AR 554-56, 679-70. The ALJ’s finding 4 that Dr. Mesher’s opinion was inconsistent with his own notes is not substantially 5 supported by the evidence. Accordingly, the ALJ erred in discounting it for that reason.

6 In discounting Dr. Mesher’s opinion based on its inconsistency with the 7 longitudinal record, the ALJ similarly reasoned that the objective medical evidence often 8 lacked notes about plaintiff’s fatigue and other MS symptoms. AR 21-28. This is not 9 supported by the record. Much of the objective medical evidence cited by the ALJ is 10 more supportive of Dr. Mesher’s opinion—including statements regarding the plaintiff’s 11 pain (AR 606, 644, 793), fatigue (AR 793), depression (AR 649-51, 598-99, 733), and 12 anxious mood (AR 488, 723-24). The ALJ’s decision to discount Dr. Mesher’s opinion 13 for that reason is not supported by substantial evidence, therefore the ALJ committed 14 error in doing so.

15 B. Whether the ALJ Properly Evaluated Plaintiff’s Subjective Symptom Testimony 16 To reject a claimant’s subjective complaints, the ALJ’s decision must provide 17 “specific, cogent reasons for the disbelief.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 18 1995) (citation omitted). The ALJ “must identify what testimony is not credible and what 19 evidence undermines the claimant’s complaints.” Id.; Dodrill v. Shalala, 12 F.3d 915, 20 918 (9th Cir. 1993). Unless affirmative evidence shows the claimant is malingering, the 21 ALJ’s reasons for rejecting the claimant’s testimony must be “clear and convincing.” 22 Lester, 81 F.2d at 834. “[B]ecause subjective descriptions may indicate more severe 23 limitations or restrictions than can be shown by medical evidence alone,” the ALJ may 24 1 not discredit a subjective description “solely because it is not substantiated affirmatively 2 by objective medical evidence.” Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th 3 Cir. 2006). 4 During the hearing, plaintiff testified that his MS symptoms included fatigue, 5 headaches, neck pain, vision problems, depression, and anxiety, and that he

6 experiences on and off paresthesia. AR 43, 51, 53-54. Plaintiff explained that due to his 7 symptoms, he had to close his screen printing business, stopped playing music, and 8 could no longer attend school two weeks after enrolling. AR 43-44, 59–60. Plaintiff 9 testified that his symptoms have also prevented him from being able to drive, and that 10 he often needs help from others to perform daily activities, such as grocery shopping, 11 cooking, and cleaning. AR 55-57. 12 The ALJ did not fully credit plaintiff’s testimony, finding it inconsistent with (1) the 13 objective medical evidence, (2) his daily activities, and (3) his own statements. AR 20, 14 21-28. Plaintiff assigns error to the ALJ’s findings on all these grounds.

15 With regards to the ALJ’s first reason, an inconsistency with the objective 16 medical evidence may serve as a clear and convincing reason for discounting a 17 claimant’s testimony. Regennitter v. Comm’r of Social Sec. Admin., 166 F.3d 1294, 18 1297 (9th Cir. 1998). 19 Here, the ALJ reasoned that much of the medical evidence did not mention 20 fatigue, headaches, or pain. AR 21-28. However, a mere “lack of medical evidence 21 cannot form the sole basis for discounting [symptom] testimony.” Burch v. Barnhart, 400 22 F.3d 676, 681 (9th Cir. 2005). The ALJ also pointed out that the treatment notes that do 23 mention plaintiff’s symptoms do not indicate the degree of limitation as alleged by 24 1 plaintiff. AR 27. For example, the ALJ considered a treatment note by Dr. Repovic 2 where plaintiff described having pulsating headaches, but because the note did not 3 mention that plaintiff was bedridden, the ALJ concluded plaintiff’s testimony was not 4 credible. Id. This is an error, as an ALJ’s decision may not reject a claimant’s subjective 5 symptom testimony “solely because the degree of pain alleged is not supported by

6 objective medical evidence.” Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1995); 7 Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) (applying rule to subjective 8 complaints other than pain). 9 Additionally, the ALJ seems to focus only on certain symptoms while 10 disregarding other symptoms. For example, the ALJ cited to treatment notes that do not 11 discuss plaintiff’s fatigue or explicitly state that plaintiff denied headaches. However, 12 those same notes show that plaintiff experienced neck pain, vision problems, and 13 depression. AR 493, 496, 554, 606, 723, 793, 807. Another notable example is the 14 ALJ’s citation to a psychological evaluation by Dr. Knapp, who observed plaintiff as

15 alert, pleasant, and cooperative. AR 651. The ALJ found this portion of the evaluation 16 “unremarkable” but disregards Dr. Knapp’s opinion that plaintiff was depressed and 17 anxious. AR 649. 18 In other words, the ALJ’s evaluation of plaintiff’s subjective testimony is based on 19 improper “cherry-picking” of aspects of the record that support the ALJ’s decision. See 20 Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) The ALJ “has an independent 21 ‘duty to fully and fairly develop the record and to assure that the claimant’s interests are 22 considered.’” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting 23 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 24 1 F.2d 411, 443 (9th Cir. 1983) (per curiam))). The ALJ has failed to do so here, therefore 2 the ALJ has committed harmful error. 3 Regarding the ALJ’s second reason, a claimant’s participation in everyday 4 activities indicating capacities that are transferable to a work setting may constitute a 5 specific and legitimate reason for discounting a medical opinion. See Morgan v. Comm'r

6 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.1999). Yet disability claimants should not 7 be penalized for attempting to lead normal lives in the face of their limitations. See 8 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), citing Cooper v. Bowen, 815 F.2d 9 557, 561 (9th Cir.1987) (a disability claimant need not “vegetate in a dark room” in order 10 to be deemed eligible for benefits). 11 Here, the ALJ listed driving, camping, woodworking, attending school, playing 12 musical instruments, and designing artwork for an album inconsistent with plaintiff’s 13 testimony regarding his MS symptoms. AR 21, 23-24, 26-28. Besides playing musical 14 instruments, the ALJ does not explain with sufficient specificity how any of these

15 activities contradict Plaintiff’s testimony, especially since plaintiff testified that he 16 stopped driving his motorcycle (AR 47-50), he was having difficulty attending school 17 (AR 44), and the record states that plaintiff found camping “too tiring” (AR 836). The ALJ 18 also does not explain how these activities would be transferrable to work setting, 19 therefore the ALJ’s finding that plaintiff’s activities conflicted with his subjective 20 symptoms was not a clear and convincing reason to discount plaintiff’s testimony. 21 With regards to the ALJ’s third reason, an ALJ may consider inconsistent 22 statements when evaluating the reliability of a claimant’s testimony as a whole. Fair v. 23 Bowen, 885 F.2d 597, 604 n.4 (9th Cir. 1989). “A single discrepancy fails, however, to 24 1 justify the wholesale dismissal of a claimant's testimony.” Popa v. Berryhill, 872 F.3d 2 901, 906-07 (9th Cir. 2017). 3 Here, the ALJ pointed to plaintiff’s testimony that he had stopped using marijuana 4 for a year and a half (AR 64), contradicting the notes in the record that shows plaintiff 5 was using marijuana products as recently as October 2019. AR 491, 649, 708, 648,

6 708. This finding by the ALJ is supported by the record but this discrepancy is one that 7 that does not “justify the wholesale dismissal of a claimant's testimony,” especially since 8 the ALJ’s other reasons for discrediting plaintiff’s testimony were not supported by 9 substantial evidence. See Popa, 466 F.3d at 883–84. 10 4. Harmless Error 11 An error is harmless only if it is not prejudicial to the claimant or “inconsequential” 12 to the ALJ’s “ultimate nondisability determination.” Stout v. Comm’r Soc. Sec. Admin., 13 454 F.3d 1050, 1055 (9th Cir. 2006). 14 In this case, the ALJ’s errors were not harmless because a proper evaluation of

15 Dr. Mesher’s opinion and plaintiff’s subjective testimony could change the ALJ’s 16 assessment of Plaintiff’s RFC and may affect the hypotheticals provided to the 17 Vocational Expert. 18 C. Whether Step Three Findings are Required when the ALJ Evaluates the RFC; 19 and Whether Additional Proceedings Should be Conducted on Remand 20 Plaintiff argues that the ALJ erred by not specifically including in the RFC her 21 finding that plaintiff had moderate limitations in concentration, persistence, and pace. 22 Dkt. 11, pp. 14-15. 23 24 1 Social Security regulations provide that in assessing disability claims, 2 adjudicators must remember that the limitations identified in the paragraph B criteria 3 “are not an RFC assessment but are used to rate the severity of mental impairment(s) 4 at steps 2 and 3 of the sequential evaluation process.” See SSR 96-8p. 5 “Between steps three and four, the ALJ must, as an intermediate step, assess

6 the claimant's RFC.” Bray v. Comm'r of Social Security Admin., 554 F.3d 1219, 1222– 7 23 (9th Cir. 2009). In formulating the mental health RFC assessment used at steps 4 8 and 5 of the sequential evaluation process, the ALJ is required to perform “a more 9 detailed assessment by itemizing various functions contained in the broad categories 10 found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing 11 of Impairments, and summarized on the PRTF (Psychiatric Review Technique Form).” 12 SSR 96-8p. 13 The ALJ's task when assessing the RFC is not to provide an adequate 14 explanation for how the RFC accommodates the ALJ's paragraph B findings, but rather

15 to perform a new, more detailed assessment incorporating all the relevant evidence. 16 SSR 96-8p. See e.g. Israel v. Astrue, 494 F. App'x 794 (9th Cir. 2012) (noting that the 17 mental limitations identified at step three of the sequential evaluation process are not an 18 RFC assessment, and that the ALJ must consider the step three limitations along with 19 all the relevant evidence in formulating the RFC). Error, if any, was therefore harmless 20 in this case. 21 “‘The decision whether to remand a case for additional evidence, or simply to 22 award benefits[,] is within the discretion of the court.’” Trevizo v. Berryhill, 871 F.3d 664, 23 682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). If 24 1 an ALJ makes an error and the record is uncertain and ambiguous, the court should 2 remand to the agency for further proceedings. Leon v. Berryhill, 880 F.3d 1041, 1045 3 (9th Cir. 2017). Likewise, if the court concludes that additional proceedings can remedy 4 the ALJ’s errors, it should remand the case for further consideration. Revels, 874 F.3d 5 at 668.

6 The Ninth Circuit has developed a three-step analysis for determining when to 7 remand for a direct award of benefits. Such remand is generally proper only where 8 “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 9 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited 10 evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” 11 Trevizo, 871 F.3d at 682-83 (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 12 2014)). 13 The Ninth Circuit emphasized in Leon v. Berryhill that even when each element is 14 satisfied, the district court still has discretion to remand for further proceedings or for 15 award of benefits. 80 F.3d 1041, 1045 (9th Cir. 2017). 16 Here, the ALJ erred by improperly evaluating Dr. Mesher’s opinion and plaintiff’s 17 subjective testimony. There is ambiguity in the record concerning the specific work- 18 related limitations associated with Dr. Mesher’s opinion and plaintiff’s assertions about 19 his capacity to perform work-related functions. Accordingly, remand for further 20 proceedings is the appropriate remedy. On remand, the ALJ is directed to re-evaluate 21 the opinions of Dr. Mesher and plaintiff’s symptom testimony and allow plaintiff to 22 provide additional testimony and evidence, as necessary to clarify the record. 23 24 1 CONCLUSION 2 Based on the foregoing discussion, the Court finds the ALJ erred when he 3 determined plaintiff to be not disabled. Defendant’s decision to deny benefits therefore 4 is REVERSED and this matter is REMANDED for further administrative proceedings. 5 Dated this 22nd day of March, 2022.

6 7 A 8 Theresa L. Fricke 9 United States Magistrate Judge

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24