Pence v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: March 20, 2023
• Docket: 4:20-cv-05220
• Status: Unknown

Opinion

FILED IN THE 1 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Mar 20, 2023 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 JAMI P., No. 4:20-CV-05220-JAG 8

9 Plaintiff, ORDER GRANTING IN PART 10 PLAINTIFF’S MOTION FOR v. SUMMARY JUDGMENT AND 11 REMANDING FOR ADDITIONAL 12 KILOLO KIJAKAZI, PROCEEDINGS ACTING COMMISSIONER OF 13 SOCIAL SECURITY,1 14 Defendant. 15

16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 No. 28, 30. Attorney Chad Hatfield represents Jami P. (Plaintiff); Special 18 19 Assistant United States Attorney Jeffrey Staples represents the Commissioner of 20 Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 6. After reviewing the administrative record and the 22 briefs filed by the parties, the Court GRANTS IN PART Plaintiff’s Motion for 23 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 24

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 25 26 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 27 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 28 action need be taken to continue this suit. See 42 U.S.C. § 405(g). REMANDS the matter to the Commissioner for additional proceedings pursuant to 1 2 42 U.S.C. § 405(g). 3 I. JURISDICTION 4 Plaintiff filed an application for Supplemental Security Income on July 6, 5 2017, alleging disability since June 1, 2009,2 due to depression, hearing loss, 6 PTSD, anxiety, extra vertebrae in lower back, and bad knees. Tr. 144-45. The 7 application was denied initially and upon reconsideration. Tr. 181-89, 193-99. 8 Administrative Law Judge (ALJ) Lori Freund held a hearing on September 24, 9 2019, Tr. 78-119, and issued an unfavorable decision on March 23, 2020. 10 Tr. 15-26. Plaintiff requested review of the ALJ’s decision by the Appeals Council 11 and the Appeals Council denied the request for review on September 10, 2020. Tr. 12 1-5. The ALJ’s March 2020 decision is the final decision of the Commissioner, 13 which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff 14 filed this action for judicial review on November 10, 2020. ECF No. 1. 15 II. STATEMENT OF FACTS 16 Plaintiff was born in 1978 and was 38 years old when she filed her 17 application. Tr. 24. She went to school until the 11th grade and later obtained her 18 GED. Tr. 422-23, 513. She has alleged PTSD stemming from the removal of her 19 child from her care and from past abusive relationships. Tr. 93, 473, 484, 490-91, 20 633. Her anxiety has resulted in her needing her mother or another companion to 21 accompany her when she leaves home. Tr. 107-09, 490, 607. She has also 22 23 received treatment for back pain and left knee pain, in addition to various other 24 acute medical issues. Tr. 502, 524-26. 25 26

27 2 Plaintiff later amended her alleged onset date to match the filing date, July 6, 28 2017. Tr. 81, 372. 1 III. STANDARD OF REVIEW 2 The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion. Richardson v. 12 Perales, 402 U.S. 389, 401 (1971). 13 If the evidence is susceptible to more than one rational interpretation, the 14 Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 15 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 16 1999). If substantial evidence supports the administrative findings, or if 17 conflicting evidence supports a finding of either disability or non-disability, the 18 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 19 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be 20 set aside if the proper legal standards were not applied in weighing the evidence 21 and making the decision. Brawner v. Secretary of Health and Human Services, 22 23 839 F.2d 432, 433 (9th Cir. 1988). 24 IV. SEQUENTIAL EVALUATION PROCESS 25 The Commissioner has established a five-step sequential evaluation process 26 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 27 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the claimant 28 bears the burden of establishing a prima facie case of disability. Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes that a physical or 1 2 mental impairment prevents the claimant from engaging in past relevant work. 20 3 C.F.R. § 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ 4 proceeds to step five, and the burden shifts to the Commissioner to show: (1) the 5 claimant can make an adjustment to other work; and (2) the claimant can perform 6 specific jobs that exist in the national economy. Batson v. Commissioner of Social 7 Sec. Admin., 359 F.3d 1190, 1193-1194 (9th Cir. 2004). If a claimant cannot make 8 an adjustment to other work in the national economy, the claimant will be found 9 disabled. 20 C.F.R. § 416.920(a)(4)(v). 10 V. ADMINISTRATIVE FINDINGS 11 On March 23, 2020, the ALJ issued a decision finding Plaintiff was not 12 disabled as defined in the Social Security Act. Tr. 15-26. 13 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 14 activity since the application date. Tr. 18. 15 At step two, the ALJ determined Plaintiff had the following severe 16 impairments: left knee degenerative joint disease, morbid obesity, lumbago, 17 diabetes, unspecified depressive disorder, social anxiety/panic disorder, and PTSD. 18 Id. 19 At step three, the ALJ found Plaintiff did not have an impairment or 20 combination of impairments that met or medically equaled the severity of one of 21 the listed impairments. Tr. 18-19. 22 23 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 24 she could perform light work, with the following limitations: 25 [S]he could only occasionally climb stairs and ramps, stoop, kneel, crouch and crawl. She should avoid climbing 26 ladders/ropes/scaffolds and unprotected heights as well as 27 walking on uneven terrain. She would be limited to simple and repetitive tasks with only occasional changes in a work setting. 28 No fast paced or timed production work could be performed. She 1 could not work with the public but could have superficial 2 interaction with co-workers and supervisors. No over-the- 3 shoulder supervisory actions. 4 Tr. 21. 5 At step four, the ALJ found Plaintiff had no past relevant work. Tr. 24. 6 At step five the ALJ found that, considering Plaintiff’s age, education, work 7 experience and residual functional capacity, Plaintiff could perform jobs that 8 existed in significant numbers in the national economy, specifically identifying the 9 representative occupations of garment sorter, mail clerk and housekeeping cleaner. 10 Tr. 25. 11 The ALJ thus concluded Plaintiff was not under a disability within the 12 meaning of the Social Security Act at any time from the date the application was 13 filed through the date of the decision. Tr. 26. 14 VI. ISSUES 15 The question presented is whether substantial evidence supports the ALJ’s 16 decision denying benefits and, if so, whether that decision is based on proper legal 17 standards. 18 Plaintiff contends the Commissioner erred by: (1) improperly evaluating the 19 medical opinion evidence; (2) conducting an inadequate step three analysis; (3) 20 improperly rejecting Plaintiff’s subjective complaints; and (4) making inadequate 21 step five findings. 22 VII. DISCUSSION 23 24 A. Medical Opinion Evidence. 25 Plaintiff argues the ALJ erred in evaluating the medical opinions from Drs. 26 Shapiro, Tacheny, Rubin, Marks, Genthe, Carstens, and Harmon. ECF No. 28 27 at 7-16. For claims filed on or after March 27, 2017, the ALJ must consider the 28 persuasiveness of each medical opinion and prior administrative medical finding, regardless of whether the medical source is an Acceptable Medical Source. 20 1 2 C.F.R. § 416.920c(c). The ALJ is required to consider multiple factors, including 3 supportability, consistency, the source’s relationship with the claimant, any 4 specialization of the source, and other factors (such as the source’s familiarity with 5 other evidence in the file or an understanding of Social Security’s disability 6 program). Id. The regulations make clear that the supportability and consistency 7 of the opinion are the most important factors, and the ALJ must articulate how they 8 considered those factors in determining the persuasiveness of each medical opinion 9 or prior administrative medical finding. 20 C.F.R. § 416.920c(b). The ALJ may 10 explain how they considered the other factors, but is not required to do so, except 11 in cases where two or more opinions are equally well-supported and consistent 12 with the record. Id. 13 Supportability and consistency are further explained in the regulations: 14 (1) Supportability. The more relevant the objective medical 15 evidence and supporting explanations presented by a medical 16 source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the 17 medical opinions or prior administrative medical finding(s) will 18 be.

19 (2) Consistency. The more consistent a medical opinion(s) or 20 prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the 21 more persuasive the medical opinion(s) or prior administrative 22 medical finding(s) will be. 23 20 C.F.R. § 416.920c(c). The Ninth Circuit has additionally held that the new 24 regulatory framework displaces the longstanding case law requiring an ALJ to 25 provide “specific and legitimate” or “clear and convincing” reasons for rejecting a 26 treating or examining doctor’s opinion. Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 27 2022). 28 1. Dr. Marks and Dr. Genthe. 1 2 Plaintiff attended two consultative psychological exams, one with Dr. Marks 3 in 2017 and one with Dr. Genthe in 2019. Tr. 490-95, 512-19. 4 Dr. Marks diagnosed Plaintiff with unspecified anxiety, depressive, and 5 personality disorders, and agoraphobia. Tr. 492. She found Plaintiff had a marked 6 impairment in multiple work-related functions, including performing routine tasks 7 without special supervision, making simple work-related decisions, being aware of 8 normal hazards and taking appropriate precautions, asking simple questions and 9 requesting assistance, communicating and performing effectively in a work setting, 10 maintaining appropriate behavior in a work setting, completing a normal workday 11 without interruptions from psychologically based symptoms, and setting realistic 12 goals and planning independently. Tr. 493. She opined that Plaintiff was overall 13 markedly limited by her mental impairments. Id. 14 In 2019, Dr. Genthe performed a second consultative exam, diagnosing 15 Plaintiff with major depressive disorder, social anxiety disorder, and PTSD. 16 Tr. 514. He also found Plaintiff to be overall markedly impaired, with marked 17 limitations in her ability to communicate and perform effectively in a work setting, 18 maintain appropriate behavior in a work setting, and complete a normal workday 19 without interruptions from psychologically based symptoms. Tr. 515. 20 The ALJ addressed these two opinions together, finding them to be 21 unpersuasive, as they were one-time evaluations based on Plaintiff’s subjective 22 23 allegations, and contained little meaningful explanation to support the degree of 24 limitation opined. Tr. 23-24. The ALJ further found the opinions were not fully 25 supported by the mental status exam findings contained in the reports or the record 26 as a whole, and were inconsistent with the opinions of the medical expert and the 27 state agency reviewing doctors. Id. 28 Plaintiff argues the ALJ’s assessment is insufficient, as it was all boilerplate 1 2 rejection with no substantive analysis of the opinions or discussion of what 3 findings contradicted the assessed limitations. ECF No. 28 at 11-14. Plaintiff 4 argues the reports each contain abnormal findings that are supportive of the 5 opinions and that the opinions are consistent with the treatment records. Id. 6 at 14-15. Defendant argues the ALJ reasonably considered the largely normal 7 findings on each exam, and reasonably interpreted the reports as lacking in 8 explanation for the moderate and marked limitations assessed. ECF No. 30 9 at 11-12. Defendant further argues the ALJ reasonably rejected the opinions as 10 based on Plaintiff’s unreliable self-reports, due to the doctors not reviewing any 11 records, and reasonably found them to be contradicted by other opinions in the 12 record. Id. at 13-14. 13 The Court finds the ALJ’s analysis is not supported by substantial evidence. 14 While a doctor’s opinion may be discounted if it is based to a large extent on a 15 claimant’s incredible self-reports, Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 16 Cir. 2008), the nature of psychological exams is such that opinions will always be 17 somewhat based on the reports of the subject, as has been noted by the Ninth 18 Circuit: 19 [A]s two other circuits have acknowledged, “[t]he report of a 20 psychiatrist should not be rejected simply because of the relative 21 imprecision of the psychiatric methodology …” Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (quoting Poulin v. 22 Bowen, 817 F.2d 865, 873-74 (D.C. Cir. 1987)). Psychiatric 23 evaluations may appear subjective, especially compared to 24 evaluation in other medical fields. Diagnoses will always depend in part on the patient’s self-report, as well as on the clinician’s 25 observations of the patient. But such is the nature of psychiatry. 26 See Poulin, 817 F.2d at 873 (“[U]nlike a broken arm, a mind cannot be x-rayed.”). Thus, the rule allowing an ALJ to reject 27 opinions based on self-reports does not apply in the same manner 28 to opinions regarding mental illness. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). 1 2 Moreover, both Dr. Marks and Dr. Genthe noted abnormal findings on their 3 mental status exams that supported the imposition of limitations on Plaintiff’s 4 abilities, including poverty of content of speech, guarded behavior, poor retention 5 of knowledge, and not being within normal limits with respect to perception, fund 6 of knowledge, insight, and judgment. Tr. 494-95, 516-17. Both doctors also 7 documented Plaintiff’s symptom reports as meeting the diagnostic criteria for 8 depression, PTSD or anxiety, and personality disorder. Tr. 491-92, 514. The ALJ 9 did not explain why she found the findings from these exams did not support the 10 opinions, as she did not discuss the content of the exam findings or the opinions at 11 all. Tr. 23-24. Furthermore, as discussed below, the reviewing DSHS doctors 12 concluded that the diagnoses and limitations were supported by the available 13 evidence and exam findings, a factor the ALJ failed to acknowledge. Tr. 499, 520. 14 On remand, the ALJ shall reconsider Dr. Marks and Dr. Genthe’s opinions. 15 2. Dr. Carstens and Dr. Harmon. 16 Following the exam by Dr. Marks, Plaintiff’s DSHS file was reviewed by 17 Dr. Carstens, who concurred with Dr. Marks’ diagnoses and severity ratings, 18 though she opined that the duration of Plaintiff’s impairment would be longer than 19 Dr. Marks stated. Tr. 499-500. A similar review was undertaken by Dr. Harmon 20 following Dr. Genthe’s 2019 consultative exam. Tr. 520-21. 21 The ALJ stated that no analysis of these decisions was warranted under the 22 23 revised rules, as they were decisions by another governmental agency, and were 24 thus neither inherently valuable nor persuasive. Tr. 24. Plaintiff argues the ALJ 25 erred by failing to consider the disabling assessments of these doctors. ECF No. 26 28 at 15-16. Defendant argues that the ALJ did discuss the opinions, findings them 27 neither valuable nor persuasive, and further asserts that the same analysis as 28 applied to Drs. Marks and Genthe applied to Drs. Carstens and Harmon, as they 1 2 were completely reliant on the previous exams. ECF No. 30 at 14-15. 3 The Court finds the ALJ must reconsider these opinions on remand. It is not 4 clear to the Court that the reviewing opinions from DSHS are decisions by another 5 governmental agency that are not due any analysis. The revised regulations note 6 that opinions from other governmental agencies about disability and other benefits 7 decision apply their own program rules, and thus are not binding on SSA and are 8 not decisions about whether an individual is disabled under SSA’s rules. 20 C.F.R. 9 § 416.904. However, the opinions in question here do not comment on Plaintiff’s 10 eligibility for other program benefits, but rather are medical opinions about what 11 functional limitations she faces; thus, they are due a persuasiveness analysis. 20 12 C.F.R. §§ 416.913(a)(2), 416.920c. 13 Furthermore, because the Court finds the ALJ erred in her rejection of Drs. 14 Marks and Genthe, that analysis may not be imparted to Drs. Carstens and 15 Harmon. Finally, the Court also notes that Dr. Carstens reviewed three additional 16 exam reports dating back to 2012, and thus her opinion was not based entirely on 17 Dr. Marks’ assessment. Tr. 499. 18 On remand the ALJ shall reconsider these opinions. 19 3. Additional Opinions. 20 Plaintiff raises additional challenges to the ALJ’s discussion of the medical 21 experts who testified at the hearing and Plaintiff’s treating physician, Dr. Tacheny. 22 23 Because this claim is being remanded for further proceedings, the ALJ shall 24 reconsider the record as a whole in making new findings regarding the five-step 25 process. 26 B. Step Three. 27 At step three of the sequential evaluation process, the ALJ considers whether 28 one or more of the claimant’s impairments meets or equals an impairment listed in Appendix 1 to Subpart P of the regulations. 20 C.F.R. § 416.920(a)(4)(iii). Each 1 2 Listing sets forth the “symptoms, signs, and laboratory findings” which must be 3 established for a claimant’s impairment to meet the Listing. Tackett v. Apfel, 180 4 F.3d 1094, 1099 (9th Cir. 1999). If a claimant meets or equals a Listing, the 5 claimant is considered disabled without further inquiry. 20 C.F.R. § 416.920(d). 6 Plaintiff argues the ALJ erred by failing to find her conditions to meet or 7 equal Listing 1.02A, based on her inability to walk on rough or uneven surfaces, 8 and that her conditions meet Listing 12.05B based on her full-scale IQ score of 69. 9 ECF No. 28 at 16-18.3 10 1. Listing 1.02A – Major Dysfunction of a Joint. 11 Former Listing 1.02A4 for major dysfunction of a joint required the 12 following elements: 13 Major dysfunction of a joint(s) (due to any cause): Characterized 14 by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and 15 stiffness with signs of limitation of motion or other abnormal 16 motion of the affected joint(s), and findings on appropriate 17 medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With: 18

19 A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in inability to ambulate 20 effectively, as defined in 1.00 B2b; 21 3 Plaintiff also makes a blanket assertion that she should be found disabled 22 pursuant to Listings 1.04, 12.04, 12.06, and 12.15, but does not make any argument 23 as to how her conditions fulfill the requirements of those listings. ECF No. 28 24 at 18. Thus, the Court will not address those Listings. 25 26 4 The Listings have since been amended to eliminate this section, though it was in 27 effect at the time of adjudication. The language of the former listing is available at 28 https://secure.ssa.gov/apps10/poms.nsf/lnx/0434121013 1 … 2 Listing 1.02. An inability to ambulate effectively is defined as follows: 3 b. What we mean by inability to ambulate effectively 4 5 (1) Definition. Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an 6 impairment(s) that interferes very seriously with the 7 individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined 8 generally as having insufficient lower extremity 9 functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that 10 limits the functioning of both upper extremities. (Listing 11 1.05 C is an exception to this general definition because 12 the individual has the use of only one upper extremity due to amputation of a hand.) 13

14 (2) To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient 15 distance to be able to carry out activities of daily living. 16 They must have the ability to travel without companion assistance to and from a place of employment or school. 17 Therefore, examples of ineffective ambulation include, 18 but are not limited to, the inability to walk without the use 19 of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven 20 surfaces, the inability to use standard public 21 transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and 22 the inability to climb a few steps at a reasonable pace with 23 the use of a single hand rail. The ability to walk independently about one's home without the use of 24 assistive devices does not, in and of itself, constitute 25 effective ambulation. 26 Listing 1.00(B)(2)(b)(emphasis added). 27 Plaintiff argues her degenerative joint disease of the left knee satisfies these 28 requirements, based on the testimony of Dr. Shapiro at hearing that she could not walk on uneven ground, and the findings of consultative examiner Dr. Opara, who 1 2 said Plaintiff needed a cane due to back pain, left knee tendinosis, and findings of 3 antalgic gait, tenderness, and reduced range of motion. ECF No. 28 at 17. 4 Defendant argues Plaintiff has not shown that she is unable to ambulate effectively, 5 as she does not require the use of an assistive device that uses both hands. ECF 6 No. 30 at 18. Defendant further argues that Dr. Shapiro stated Plaintiff’s 7 conditions did not meet or equal any listing, and while Dr. Opara found Plaintiff 8 required a cane, the ALJ identified numerous other records that showed normal 9 gait and no mention of an assistive device. Id. at 18-19. 10 The Court finds the ALJ did not err. Plaintiff has failed to present evidence 11 that satisfies each of the elements of the Listing. Dr. Shapiro’s testimony that 12 Plaintiff should not walk on uneven surfaces as part of her work requirements does 13 not establish that she is unable to ambulate effectively, particularly in light of his 14 additional statements that Plaintiff’s condition did not meet or equal any listing. 15 Tr. 85-87. 16 2. Listing 12.05 – Intellectual Disorder. 17 Listing 12.05B for intellectual disorders is satisfied by the following criteria: 18 1. Significantly subaverage general intellectual functioning 19 evidenced by a or b: 20 a. A full scale (or comparable) IQ score of 70 or 21 below on an individually administered standardized test of general intelligence; or 22 b. A full scale (or comparable) IQ score of 71- 23 75 accompanied by a verbal or performance 24 IQ score (or comparable part score) of 70 or below on an individually administered 25 standardized test of general intelligence; and 26 2. Significant deficits in adaptive functioning currently 27 manifested by extreme limitation of one, or marked 28 limitation of two, of the following areas of mental 1 functioning: 2 a. Understand, remember, or apply information 3 (see 12.00E1); or 4 b. Interact with others (see 12.00E2); or 5 c. Concentrate, persist, or maintain pace (see 12.00E3); or 6 d. Adapt or manage oneself (see 12.00E4); and 7 3. The evidence about your current intellectual and adaptive 8 functioning and about the history of your disorder 9 demonstrates or supports the conclusion that the disorder began prior to your attainment of age 22. 10 20 C.F.R Part 404, Subpart P, Appendix 1, §12.05. 11 Plaintiff argues her full scale IQ score of 69 meets the requirements of 12 13 Listing 12.05B. ECF No. 28 at 18. However, she makes no further argument as to 14 how the other sections of the Listing are met. The ALJ found Plaintiff had no 15 more than a moderate limitation in understanding, remembering, or applying 16 information; interacting with others; concentrating, persisting, or maintaining pace; 17 or adapting and managing herself. Tr. 19. Plaintiff has not challenged these 18 findings. Therefore, she has not met her burden of demonstrating that each of the 19 elements of the listing are met. 20 On remand, however, the ALJ will reconsider each step in the sequential 21 evaluation process. 22 C. Plaintiff’s Subjective Statements. 23 Plaintiff contends the ALJ erred by improperly rejecting her subjective 24 complaints. ECF No. 28 at 18-20. It is the province of the ALJ to make 25 determinations regarding a claimant’s subjective statements. Andrews v. Shalala, 26 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ’s findings, however, must be 27 supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 28 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 1 2 medical impairment, the ALJ may not discredit testimony as to the severity of an 3 impairment merely because it is unsupported by medical evidence. Reddick v. 4 Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of 5 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 6 “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 7 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General findings are 8 insufficient: rather the ALJ must identify what testimony is not credible and what 9 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 10 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 11 The ALJ concluded Plaintiff’s medically determinable impairments could 12 reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 13 statements concerning the intensity, persistence and limiting effects of those 14 symptoms were not entirely consistent with the medical evidence and other 15 evidence in the record. Tr. 21. The ALJ found Plaintiff’s allegations were not 16 supported by the objective evidence, were inconsistent with the majority of the 17 medical opinions in the file and were undermined by inconsistent evidence in the 18 file. Tr. 22. She additionally found some evidence of possible secondary gain 19 motivation and noted that Plaintiff’s significant criminal history was likely a 20 barrier to her employment. Id. 21 Because this claim is being remanded for reconsideration of other evidence, 22 23 the ALJ shall also reconsider Plaintiff’s subjective statements in light of any 24 updated records and other findings. 25 D. Step Five. 26 Plaintiff argues that the ALJ erred in her step five determination because the 27 testimony of the vocational expert was premised on an incomplete hypothetical 28 stemming from an inaccurate residual functional capacity determination. ECF No. 28 at 20-21. Considering the case is being remanded for the ALJ to properly 1 2 address other issues, the ALJ will be required to make a new step five 3 determination and call upon a vocational expert to provide testimony. 4 VIII. CONCLUSION 5 Plaintiff argues the decision should be reversed and remanded for the 6 payment of benefits under the credit-as-true rule. Under Ninth Circuit caselaw, the 7 Court had the discretion to remand a case for additional evidence and findings or to 8 award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). The 9 commentary accompanying the 2017 revisions to the rules for assessing medical 10 opinions made clear that “it is never appropriate under our rules to ‘credit-as-true’ 11 any medical opinion” and specifically mentioned that the Ninth Circuit rules were 12 not being adopted in the new regulations. Revisions to Rules Regarding the 13 Evaluation of Medical Evidence, 2017 WL 168819, Fed Reg. Vol 82, No. 11 5858- 14 60 (Jan 18, 2017). The Court therefore finds that remand for further proceedings is 15 the appropriate remedy. Additionally, while the Court has found that the ALJ’s 16 decision is not supported by substantial evidence, the ALJ may very well reach the 17 same conclusions on remand after further consideration of the issues identified in 18 this Order. 19 On remand, the ALJ shall reevaluate the medical evidence of record, making 20 findings on each of the five steps of the sequential evaluation process, and take into 21 consideration any other evidence submitted or arguments relevant to Plaintiff’s 22 23 disability claim. 24 Accordingly, IT IS ORDERED: 25 1. Plaintiff’s Motion for Summary Judgment, ECF No. 28, is 26 GRANTED IN PART. 27 2. Defendant’s Motion for Summary Judgment, ECF No. 30, is 28 DENIED. 1 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 3 4. An application for attorney fees may be filed by separate motion. 4 5. The District Court Executive is directed to file this Order and provide 5|| a copy to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 7 IT IS SO ORDERED. 8 DATED March 20, 2023. 9 cm, 10 pone be Lay 11 A eos JAMES A. GOEKE a” UNITED STATES MAGISTRATE JUDGE

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