Parish v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: November 16, 2020
• Docket: 3:20-cv-05339
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 LEE P., CASE NO. 3:20-CV-5339-DWC 11 Plaintiff, ORDER REVERSING AND 12 v. REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15

I. INTRODUCTION 16 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the 17 Commissioner of Social Security’s (“Commissioner”) denial of Plaintiff’s application for 18 disability insurance benefits. Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 19 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the 20 undersigned Magistrate Judge. See Dkt. 2. 21 After considering the record, the Court concludes the Administrative Law Judge 22 (“ALJ”) erred in evaluating Plaintiff’s testimony and lay testimony from Plaintiff’s mother. The 23 ALJ did not harmfully err in rejecting the opinions of treating psychologist Richard Rinehart, 24 1 M.D. The Court declines to address whether the ALJ erred in refusing to allow Plaintiff to cross- 2 examine non-examining doctors, as that issue can be dealt with on remand based on any new 3 evidence presented. Accordingly, this matter is reversed and remanded pursuant to sentence four 4 of 42 U.S.C. § 405(g) to the Commissioner for further proceedings consistent with this Order.

5 II. FACTUAL AND PROCEDURAL HISTORY 6 Plaintiff applied for disability insurance benefits in August 2018, alleging disability as of 7 June 30, 2017, later amended to July 31, 2018. See Dkt. 14, Admin. Record (“AR”), 17, 91–92, 8 132, 231–32. The application was denied on initial administrative review, and on 9 reconsideration. See AR 130–60. A hearing was held before ALJ Malcolm Ross on August 28, 10 2019. See AR 86–129. In a decision dated November 29, 2019, ALJ Ross determined Plaintiff 11 to be not disabled. See AR 17–28. The Appeals Council denied review. See AR 1–4. 12 III. STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 14 social security benefits if the ALJ’s findings are based on legal error or not supported by

15 substantial evidence in the record as a whole. Ford v. Saul, 950 F.3d 1141, 1153–54 (9th Cir. 16 2020) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). 17 IV. DISCUSSION 18 A. Whether the ALJ Reasonably Rejected Plaintiff’s Testimony 19 Plaintiff contends the ALJ failed to give clear and convincing reasons for discounting 20 Plaintiff’s subjective symptom testimony.1 See Dkt. 16, Pl. Op. Br., pp. 12–16. Plaintiff 21

22 1 Defendant argues in a footnote that Plaintiff failed to challenge the ALJ’s evaluation of 23 his physical impairments. See Dkt. 17, Def. Resp. Br., p. 2 n.2. This is inaccurate, as Plaintiff challenged the ALJ’s determination that Plaintiff received only conservative treatment for his 24 physical impairments, and that Plaintiff’s daily activities are inconsistent with his physical 1 testified he suffered from posttraumatic stress disorder (“PTSD”) due to his work in the military. 2 AR 99. He testified his PTSD made it difficult to get along with coworkers, follow simple 3 directions, respond appropriately to supervisors, or concentrate. See AR 97–98, 112–13, 300–01, 4 339, 344. Plaintiff testified the pressure of quotas when he worked as a military recruiter put

5 substantial stress on him. AR 99. 6 Plaintiff testified he has radiating pain down his arms. AR 97. He testified it was painful 7 to sit due to neck pain. AR 106–07, 114–15, 295, 300. He testified he can sit for about an hour, 8 and would then need 30 minutes of stretching before he could sit back down. AR 111. He 9 reported pain in his shoulder and low back prevent him standing for long periods of time. AR 10 339. He testified he cannot walk for more than two blocks. Id. 11 The Ninth Circuit has “established a two-step analysis for determining the extent to 12 which a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 13 678 (9th Cir. 2017). The ALJ must first determine whether the claimant has presented objective 14 medical evidence of an impairment that “‘could reasonably be expected to produce the pain or

15 other symptoms alleged.’” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 16 2014). At this stage, the claimant need only show the impairment could reasonably have caused 17 some degree of the symptoms; he does not have to show the impairment could reasonably be 18 expected to cause the severity of the symptoms alleged. Id. The ALJ found Plaintiff met this 19 first step. See AR 23. 20 If the claimant satisfies the first step, and there is no evidence of malingering, the ALJ 21 may only reject the claimant’s testimony “‘by offering specific, clear and convincing reasons for 22

23 symptom testimony. See Dkt. 16, pp. 13–16. The Court thus considers the ALJ’s evaluation of 24 Plaintiff’s testimony regarding the severity of his mental and physical symptoms. 1 doing so. This is not an easy requirement to meet.’” Trevizo, 871 F.3d at 678 (quoting Garrison, 2 759 F.3d at 1014-15). In evaluating the ALJ’s determination at this step, the Court may not 3 substitute its judgment for that of the ALJ. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 4 As long as the ALJ’s decision is supported by substantial evidence, it should stand, even if some

5 of the ALJ’s reasons for discrediting a claimant’s testimony fail. See Tonapetyan v. Halter, 242 6 F.3d 1144, 1148 (9th Cir. 2001). 7 The ALJ rejected Plaintiff’s testimony regarding the severity of his impairments. See AR 8 23–25. The ALJ reasoned Plaintiff’s neck and shoulder pain were inconsistent with the level of 9 treatment he received and normal exam findings. AR 23. The ALJ reasoned Plaintiff’s mental 10 health symptoms were inconsistent with the majority of mental status exam findings, and 11 evidence Plaintiff’s symptoms were controlled with medication. AR 24. The ALJ reasoned 12 Plaintiff’s testimony was inconsistent with his functioning as shown by his daily activities. AR 13 24–25. The ALJ reasoned Plaintiff’s testimony was undermined by inconsistencies in his reports 14 regarding possible causes of his PTSD. AR 24.

15 1. The ALJ Erred in Rejecting Plaintiff’s Neck and Shoulder Pain Testimony as Inconsistent with His Level of Treatment and Providers’ Exam Findings 16 The ALJ erred in rejecting Plaintiff’s testimony regarding the severity of his neck and 17 shoulder symptoms based on his level of treatment and allegedly mild symptoms. The treatment 18 Plaintiff received included multiple steroid injections, physical therapy, and electric stimulation. 19 See AR 1869, 1889, 2877–84, 2890, 2906, 2920, 2933. Plaintiff at one point opted for more 20 conservative treatment over surgery. See AR 2848. But the treatment he received could not 21 actually be called conservative such that it undermined Plaintiff’s testimony as to the severity of 22 his neck and shoulder pain. See Garrison, 759 F.3d at 1015 n.20 (“[W]e doubt that epidural 23 steroid shots to the neck and lower back qualify as ‘conservative’ medical treatment.”); Kager v. 24 1 Astrue, 256 F. App’x 919, 923 (9th Cir. 2007) (finding error where the ALJ discounted the 2 plaintiff’s testimony based on a lack of significant pain therapy, when the plaintiff had been 3 prescribed opioid medications). 4 The ALJ similarly erred in rejecting Plaintiff’s neck and shoulder pain testimony based

5 on normal exam findings. An ALJ may reject a claimant’s symptom testimony when it is 6 contradicted by the medical evidence. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 7 1155, 1161 (9th Cir. 2008) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995)). But 8 the ALJ must explain how the medical evidence contradicts the claimant’s testimony. See 9 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The evidence to which the ALJ pointed 10 does not contradict Plaintiff’s complaints regarding the severity of his pain, as imaging showed 11 cervical spine abnormalities, and Plaintiff continued to report neck pain. See, e.g., AR 2815–17, 12 3162, 3190. That Plaintiff showed normal range of motion, strength, and sensation at several 13 examinations does not refute his claims that he has pain in his neck and shoulders. 14 2. The ALJ Erred in Rejecting Plaintiff’s Mental Health Symptom Testimony as Inconsistent with Mental Status Exam Findings in the Record and Based on the 15 Determination that Plaintiff’s Symptoms were Controlled with Medication 16 The ALJ erred in rejecting Plaintiff’s testimony regarding the severity of his mental 17 health symptoms as inconsistent with the majority of mental status exam findings in the record. 18 The ALJ noted Plaintiff had PHQ-9 scores that ranged from indicating mild to severe symptoms. 19 AR 24. The ALJ also noted Plaintiff had restricted mood and affect on some exams, but other 20 findings were generally within normal limits. Id. Many of these normal findings the ALJ cited 21 were very basic, such as statements that Plaintiff had “appropriate demeanor, [and] normal 22 speech,” and made during exams focused on treating Plaintiff’s neck pain. AR 2898, 2903–04, 23 2912, 2918, 2927, 2931, 2942, 2947. These findings do not clearly or convincingly contradict

24 1 Plaintiff’s testimony that he had difficulty getting along with coworkers, following simple 2 directions, responding appropriately to supervisors, and concentrating. 3 The ALJ also erred in rejecting Plaintiff’s mental symptom testimony based on a finding 4 that his symptoms were controlled with medication. “Impairments that can be controlled

5 effectively with medication are not disabling for the purpose of determining eligibility for [social 6 security disability] benefits.” Warre ex rel. E.T. IV v. Comm’r of Soc. Sec. Admin., 439 F.3d 7 1001, 1006 (9th Cir. 2006). But “‘[t]here can be a great distance between a patient who responds 8 to treatment and one who is able to enter the workforce . . . .’” Garrison, 759 F.3d at 1017 n.23 9 (quoting Scott v. Astrue, 647 F.3d 734, 739–40 (7th Cir. 2011)). “Reports of improvement in the 10 context of mental health must be interpreted with an understanding of the patient’s overall well- 11 being and the nature of [his] symptoms” as well as “an awareness that improved functioning 12 while being treated and while limiting environmental stressors does not always mean that a 13 claimant can function effectively in a workplace.” Garrison, 759 F.3d at 1017 (internal 14 quotation marks and citations omitted).

15 The evidence to which the ALJ cited does not establish Plaintiff’s symptoms were 16 controlled to the point that he could reenter the workforce. For example, the ALJ cited to a 17 record from June 2018 indicating Plaintiff had improved mood and anxiety. See AR 2664. Two 18 months later, however, the same provider noted Plaintiff “continues to struggle with anxiety, 19 [and] irratability [sic].” AR 2659. Another record to which the ALJ cited indicated Plaintiff was 20 better able to deal with his ex-partner, but continued to have significant anxiety and difficulty 21 being around strangers and crowds. See AR 2979. Finally, it appears at least some of Plaintiff’s 22 improvement was due to the fact that he had stopped working, as one doctor noted Plaintiff’s 23 anxiety was “[i]mproved since not working.” AR 2987.

24 1 3. The ALJ Erred in Rejecting Plaintiff’s Testimony as Inconsistent with His Daily Activities 2 The ALJ erred in rejecting Plaintiff’s testimony as inconsistent with his functioning as 3 demonstrated by his daily activities. An ALJ may reject a plaintiff’s symptom testimony based 4 on his daily activities if they contradict his testimony or “meet the threshold for transferable 5 work skills.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair, 885 F.2d at 603). 6 However, “the mere fact that a plaintiff has carried on certain daily activities, such as grocery 7 shopping, driving a car, or limited walking for exercise, does not in any way detract from [his] 8 credibility as to [his] overall disability. One does not need to be ‘utterly incapacitated’ in order 9 to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (quoting Fair, 885 F.2d 10 at 603). The ALJ reasoned Plaintiff could walk, drive a car, go shopping, spend time with 11 family, go to church, handle his personal care, care for his cat, prepare meals, and handle his own 12 finances. AR 24. The ALJ provided no analysis to show how these activities contradict 13 Plaintiff’s statements or show transferable work skills. 14 4. The ALJ Erred in Rejecting Plaintiff’s Testimony Based on Inconsistent 15 Statements Regarding PTSD 16 Finally, the ALJ erred in rejecting Plaintiff’s testimony based on allegedly inconsistent 17 statements regarding the cause of Plaintiff’s PTSD. Plaintiff testified he had been a military 18 recruiter tasked with recruiting medical professionals. AR 94–95. He testified his PTSD was 19 due to “being put in combat situations, being put in stressful situations that basically just, as a 20 recruiter, they tear you down.” Id. He further testified to substantial pressure due to recruitment 21 quotas. AR 99–100. The ALJ took issue with Plaintiff’s claims of being in “combat,” and noted 22 times in which Plaintiff denied having PTSD. AR 24. 23 24 1 The ALJ erred in rejecting Plaintiff’s testimony based on inconsistencies regarding his 2 involvement in combat. When asked if he had been in combat, Plaintiff replied, “Yes, I was. I 3 was in Kuwait and also Qatar. . . . And then also I was in El Salvador too.” AR 100. This is 4 consistent with the record. See AR 612, 645, 650, 2874, 2993. The ALJ found this testimony

5 inconsistent, pointing to treatment notes the ALJ believed showed Plaintiff “denied combat 6 deployments.” AR 24. But Plaintiff did not deny combat deployments, he denied participating 7 in combat activity when asked in the context of a hearing loss exam. See AR 1068. Any 8 inconsistency here was due to ambiguous terminology, and such inconsistency is not a clear and 9 convincing reason to reject Plaintiff’s testimony. 10 Similarly, the ALJ erred in rejecting Plaintiff’s testimony based on his allegedly 11 inconsistent reports of PTSD. The ALJ noted two instances in which Plaintiff denied PTSD, 12 both of which occurred before the onset date, and at appointments intended to treat conditions 13 unrelated to Plaintiff’s mental health. See AR 24, 485–88, 552–54. Neither statement is a 14 convincing reason to reject Plaintiff’s overall testimony.

15 In sum, the ALJ failed to provide any clear and convincing reasons for rejecting 16 Plaintiff’s testimony regarding the severity of his neck and shoulder pain or his mental health 17 symptoms. The ALJ therefore harmfully erred. 18 B. Whether the ALJ Reasonably Rejected Plaintiff’s Mother’s Testimony 19 Plaintiff contends the ALJ failed to give germane reasons for discounting Plaintiff’s 20 mother’s testimony. See Dkt. 16, pp. 10–12. Plaintiff’s mother, who was mistakenly identified 21 as his son, submitted two written statements. See AR 26, 311–18, 331–38. Her statements 22 mirrored Plaintiff’s testimony. See AR 97–115, 295–300, 311–18, 331–38. She reported 23 Plaintiff had extreme anxiety during stressful situations. AR 311. She testified Plaintiff had

24 1 difficulty sitting and standing due to leg, back, neck, and shoulder pain. AR 311, 316. She 2 testified Plaintiff was “[e]motionally unable to answer questions and to deal with people in 3 general.” AR 331. Plaintiff’s mother testified Plaintiff could “only lift 30–50 lbs.,” and stand, 4 bend, squat, or kneel for 20–30 minutes at a time. AR 336.

5 In determining disability, “‘an ALJ must consider lay witness testimony concerning a 6 claimant’s ability to work.’” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Stout 7 v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006)). The ALJ must “give reasons 8 germane to each witness” before he can reject such lay witness evidence. Molina v. Astrue, 674 9 F.3d 1104, 1111 (9th Cir. 2012) (internal citations and quotation marks omitted). “Further, the 10 reasons ‘germane to each witness’ must be specific.” Bruce, 557 F.3d at 1115 (quoting Stout, 11 454 F.3d at 1054). 12 The ALJ rejected Plaintiff’s mother’s testimony because he found the opinions of the 13 non-examining doctors more persuasive. AR 26. The Commissioner concedes this was error, 14 but asserts it was harmless because Plaintiff’s mother’s testimony mirrored Plaintiff’s, so the

15 reasons given to reject Plaintiff’s testimony apply with equal force to Plaintiff’s mother’s 16 testimony. Dkt. 17, p. 7. As discussed above, however, the ALJ erred in rejecting Plaintiff’s 17 testimony. See supra Part IV.A. The ALJ’s reasons for rejecting Plaintiff’s testimony therefore 18 cannot apply to Plaintiff’s mother’s testimony. Consequently, the ALJ harmfully erred in 19 rejecting Plaintiff’s mother’s testimony. 20 C. Whether the ALJ Reasonably Rejected Dr. Rinehart’s Opinions 21 Plaintiff contends the ALJ erred in rejecting Dr. Rinehart’s opinions. See Dkt. 16, pp. 2– 22 10. Dr. Rinehart was one of Plaintiff’s treating psychiatrists. See AR 2657–66, 2759–69, 2973– 23 81, 3186–88, 3212–13. Dr. Rinehart submitted a medical source statement opining Plaintiff had

24 1 a trauma or stress-related disorder. AR 3151. Dr. Rinehart opined Plaintiff had marked 2 limitations in all areas involving understanding, remembering, or applying information, and 3 concentrating, persisting, and maintaining pace. AR 3153–54. Dr. Rinehart opined Plaintiff had 4 marked to extreme limitations in all areas involving interacting with others. Id. Dr. Rinehart

5 opined Plaintiff had marked, moderate, and no or mild limitations in adapting or managing 6 himself. AR 3154. 7 The ALJ rejected Dr. Rinehart’s opinions. AR 26. The ALJ reasoned (1) Dr. Rinehart’s 8 opinions were inconsistent with or unsupported by his own exam notes, which indicated 9 significant improvement with medication, and mental status exams within normal limits; (2) Dr. 10 Rinehart’s opinions were inconsistent with or unsupported by the overall medical record, which 11 also showed normal findings on mental exam; (3) Dr. Rinehart relied on a diagnosis of PTSD, 12 but Plaintiff made inconsistent statements about combat exposure; (4) Dr. Rinehart’s opinions 13 were largely uniform, “indicat[ing] a lack of thoughtful completion” of the form on which he 14 stated his opinions; and (5) Dr. Rinehart’s opinions were inconsistent with Plaintiff’s level of

15 functioning as demonstrated by his activities of daily living. Id. 16 The Commissioner argues new regulations promulgated in 2017 change the standard by 17 which the ALJ’s reasons for rejecting medical providers’ opinions are measured. See Dkt. 17, 18 pp. 7–10. Under current Ninth Circuit precedent, an ALJ must provide “clear and convincing” 19 reasons to reject an uncontradicted opinion from a treating or examining doctor, and “specific 20 and legitimate” reasons to reject a contradicted opinion from such doctor. Lester v. Chater, 81 21 F.3d 821, 830–31 (9th Cir. 1995). Dr. Rinehart’s opinions were contradicted by the opinions of 22 Eugene Kester, M.D., and Patricia Kraft, Ph.D., so the question is whether the specific and 23 legitimate standard still applies. See AR 140–41, 157–58.

24 1 The genesis of the “specific and legitimate” standard for contradicted opinions was the 2 Ninth Circuit’s decision in Murray v. Heckler, 722 F.2d 499 (9th Cir. 1983). In Murray, the ALJ 3 rejected the opinions of a treating doctor in favor of the opinions of an examining doctor. See id. 4 at 501. The Ninth Circuit reviewed precedent from other circuits and determined an ALJ must

5 ordinarily give more weight to the opinions of a treating doctor because that doctor is 6 “‘employed to cure’” the claimant and has a “‘greater opportunity to observe and know the 7 patient as an individual.’” Id. at 502 (quoting Bowman v. Heckler, 706 F.2d 564, 568 (5th Cir. 8 1983)). Thus, “[i]f the ALJ wishes to disregard the opinion of the treating physician, he or she 9 must make findings setting forth specific, legitimate reasons for doing so that are based on 10 substantial evidence in the record.” Murray, 799 F.2d at 502. 11 In 1991, the Commissioner promulgated regulations setting forth standards for reviewing 12 medical opinions. 56 Fed. Reg. 36932-01, 1991 WL 142361 (Aug. 1, 1991). Those regulations 13 established a hierarchy mirroring the one set out by the Ninth Circuit, in which treating sources 14 are given more weight than non-treating sources, and examining sources are given more weight

15 than non-examining sources. See id. at *36935–36; 20 C.F.R. §§ 404.1527(c), 416.927(c). The 16 Ninth Circuit mentioned these regulations in its 1995 opinion in Lester, and continued to rely on 17 the “clear and convincing” and “specific and legitimate” standards. See Lester, 81 F.3d at 830– 18 31. 19 In 2017, the Commissioner revised its regulations to eliminate the hierarchy of medical 20 opinions. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 21 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new regulations, for claims filed on or 22 after March 27, 2017, the Commissioner “will not defer or give any specific evidentiary 23 weight . . . to any medical opinion(s) . . . including those from [the claimant’s] medical sources.”

24 1 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the Commissioner must consider all medical 2 opinions and “evaluate their persuasiveness” based on supportability, consistency, relationship 3 with the claimant, specialization, and other factors. 20 C.F.R. §§ 404.152c(c), 416.920c(c). The 4 most important factors are supportability and consistency. 20 C.F.R. §§ 404.152c(a), (b)(2),

5 416.920c(a), (b)(2). 6 At this time, the Ninth Circuit has not issued a decision stating whether it will continue to 7 require an ALJ to provide “clear and convincing” or “specific and legitimate reasons,” or some 8 variation of those standards, when analyzing medical opinions. Regardless, it is not clear the 9 Court’s consideration of the adequacy of an ALJ’s reasoning under the new regulations differs 10 from the current Ninth Circuit standards in any significant respect. Although the regulations 11 eliminate the “physician hierarchy,” deference to specific medical opinions, and assigning 12 “weight” to a medical opinion, the ALJ must still “articulate how [he] considered the medical 13 opinions” and “how persuasive [he] find[s] all of the medical opinions.” 20 C.F.R. §§ 14 404.1520c(a), (b)(1), 416.920c(a), (b)(1). The new regulations appear to, at the least, require an

15 ALJ to specifically account for the legitimate factors of supportability and consistency in 16 addressing the persuasiveness of a medical opinion. Furthermore, the Court must continue to 17 consider whether the ALJ’s decision is supported by substantial evidence. See 82 Fed. Reg. at 18 5852 (“Courts reviewing claims under our current rules have focused more on whether we 19 sufficiently articulated the weight we gave treating source opinions, rather than on whether 20 substantial evidence supports our final decision. . . . [T]hese courts, in reviewing final agency 21 decisions, are reweighing evidence instead of applying the substantial evidence standard of 22 review, which is intended to be [a] highly deferential standard to us”). 23

24 1 Therefore, based on the above considerations, the Court will determine whether the 2 ALJ’s decision is free of legal error and supported by substantial evidence. 3 Turning to the ALJ’s analysis, the ALJ did not harmfully err in rejecting Dr. Rinehart’s 4 opinions. An ALJ may discount a doctor’s opinions when they are inconsistent with or

5 unsupported by the doctor’s own clinical findings. See Tommasetti v. Astrue, 533 F.3d 1035, 6 1041 (9th Cir. 2008). Dr. Rinehart’s records reveal normal mental status exam findings, other 7 than several episodes of restricted mood and affect. See AR 2660, 2668, 2760, 2973, 2975–76, 8 2979, 3186–87, 3212–13. Plaintiff reported he continued to struggle with anxiety, and the record 9 does not support the ALJ’s finding that Plaintiff’s symptoms were controlled with medication. 10 See AR 2659, 2979. But the ALJ reasonably noted Plaintiff’s mental status exams were 11 routinely within normal limits, depriving Dr. Rinehart’s opinions of marked to extreme 12 limitations of evidentiary support. 13 The remainder of the ALJ’s reasons for rejecting Dr. Rinehart’s opinions were erroneous, 14 but those errors were harmless. An error is harmless “where it is ‘inconsequential to the ultimate

15 disability determination.’” Molina, 674 F.3d at 1115 (quoting Carmickle, 533 F.3d at 1162). Dr. 16 Rinehart’s records did not support his opinions even if the ALJ erroneously determined those 17 opinions demonstrated a lack of thoughtfulness, for example. The ALJ therefore did not 18 harmfully err in rejecting Dr. Rinehart’s opinions. 19 D. Whether the ALJ Reasonably Refused to Provide Plaintiff an Opportunity to Cross- Examine the Non-Examining Doctors 20 Plaintiff contends the ALJ violated his due process rights by failing to provide him an 21 opportunity to cross-examine non-examining doctors on whose opinions the ALJ relied. See 22 Dkt. 16, pp. 16–17. “A claimant in a disability hearing is not entitled to unlimited cross- 23 examination, but is entitled to such cross-examination as may be required for a full and true 24 1 disclosure of the facts.” Copeland v. Bowen, 861 F.2d 536, 539 (9th Cir. 1988) (citing Solis v. 2 Schweiker, 719 F.2d 301, 302 (9th Cir. 1983)). Because this matter is being remanded for 3 further administrative proceedings, the Court need not decide whether cross-examination is 4 required here. The parties may submit additional evidence, and the ALJ should then determine

5 whether cross-examination is necessary for a “full and true disclosure of the facts.” See id. 6 E. Scope of Remand 7 Plaintiff asks the Court to remand this matter for an award of benefits. Dkt. 16, p. 18. 8 Plaintiff argues he meets Listings 12.04 and 12.15 based on Dr. Rinehart’s opinions. Id. 9 Plaintiff also argues his testimony that he needs to nap for two hours a day, coupled with 10 testimony from the vocational expert, establishes he cannot work. Id. 11 Remand for an award of benefits “is a rare and prophylactic exception to the well- 12 established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017). The 13 Ninth Circuit has established a three-step framework for deciding whether a case may be 14 remanded for an award of benefits. Id. at 1045. First, the Court must determine whether the ALJ

15 has failed to provide legally sufficient reasons for rejecting evidence. Id. (citing Garrison, 759 16 F.3d at 1020). Second, the Court must determine “whether the record has been fully developed, 17 whether there are outstanding issues that must be resolved before a determination of disability 18 can be made, and whether further administrative proceedings would be useful.” Treichler v. 19 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (internal citations and 20 quotation marks omitted). If the first two steps are satisfied, the Court must determine whether, 21 “if the improperly discredited evidence were credited as true, the ALJ would be required to find 22 the claimant disabled on remand.” Garrison, 759 F.3d at 1020. “Even if [the Court] reach[es] 23 the third step and credits [the improperly rejected evidence] as true, it is within the court’s

24 1 discretion either to make a direct award of benefits or to remand for further proceedings.” Leon, 2 880 F.3d at 1045 (citing Treichler, 773 F.3d at 1101). 3 Plaintiff has failed to show this case warrants remand for an immediate award of benefits. 4 First, the ALJ reasonably rejected Dr. Rinehart’s opinions, so disability cannot be found on that

5 basis. See supra Part IV.C. Second, Plaintiff’s testimony that he needs to nap for two hours a 6 day is contradicted by the opinions of Dr. Kester and Dr. Kraft, who opined Plaintiff could 7 “complete a normal workday/week within normal tolerances of a competitive workplace.” See 8 AR 141, 158. The ALJ, not the Court, must resolve this evidentiary conflict. See Andrews v. 9 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 10 On remand, the ALJ shall reevaluate Plaintiff’s and his mother’s testimony. The ALJ 11 shall reassess Plaintiff’s RFC, as well as steps four and five of the disability evaluation. The 12 ALJ shall conduct all further proceedings necessary to reevaluate the disability determination in 13 light of this opinion. 14 V. CONCLUSION

15 Based on the foregoing reasons, the Court finds that the ALJ improperly concluded 16 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 17 this matter is remanded for further administrative proceedings in accordance with the findings 18 contained herein. 19 Dated this 16th day of November, 2020. 20 A 21 David W. Christel United States Magistrate Judge 22 23 24