2 FILED IN THE EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 3 Apr 01, 2024
4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 HOLLY R.,1 No. 4:23-cv-05107-EFS
8 Plaintiff, ORDER REVERSING THE ALJ’S 9 v. DENIAL OF BENEFITS, AND REMANDING FOR FURTHER 10 MARTIN O’MALLEY, Commissioner of PROCEEDINGS Social Security,2 11 Defendant. 12 13 14 15
16 1 For privacy reasons, Plaintiff is referred to by first name and last initial or as 17 “Plaintiff.” See LCivR 5.2(c). 18 2 Martin O’Malley became the Commissioner of Social Security on December 20, 19 2023. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, and section 20 205(g) of the Social Security Act, 42 U.S.C. § 405(g), he is hereby substituted for 21 Kilolo Kijakazi as the defendant in this suit. 22
23 1 Due to bilateral knee pain, arthritis, chronic fatigue, foot pain, anxiety, 2 panic attacks, depression, and carpal tunnel syndrome, Plaintiff Holly R. claims
3 that she is unable to work fulltime and applied for supplemental security income 4 benefits. She appeals the denial of benefits by the Administrative Law Judge (ALJ) 5 on the grounds that the ALJ improperly analyzed the opinions of Rikki Cook, 6 LMHC, and David Davis-Boozler, MD; and the ALJ improperly assessed Plaintiff’s 7 credibility. As is explained below, the ALJ erred. This matter is remanded for 8 further proceedings. 9 I. Background
10 In November 2019, Plaintiff filed an application for benefits under Title 16, 11 claiming disability beginning January 1, 2019,3 based on the physical and mental 12 impairments noted above.4 Plaintiff’s claim was denied at the initial and 13 reconsideration levels.5 14 After the agency denied Plaintiff benefits, ALJ Palachuk held a telephone 15 hearing in June 2022, at which Plaintiff appeared with her representative.6
16 Plaintiff and a vocational expert testified.7 17
18 3 This was later amended to October 15, 2019, as noted below. 19 4 AR 183-194, 215. 20 5 AR 88, 101, 104. 21 6 AR 36-58. 22 7 Id. 23 1 After the hearing, the ALJ issued a decision denying benefits.8 The ALJ 2 found Plaintiff’s alleged symptoms were not entirely consistent with the medical
3 evidence and the other evidence.9 As to medical opinions, the ALJ found: 4 • The opinions of state agency evaluators Matthew Comrie, PsyD, and 5 Patricia Kraft, PhD, to be not persuasive. 6 • The opinions of state agency physicians Robert Stuart, MD, and 7 Gordon Hale, MD, to be not persuasive. 8 • The opinions of consultative examiner Linda Lindman, PhD, to be 9 somewhat persuasive.
10 • The opinions of David Davis-Boozler, MD, to be somewhat persuasive. 11 • The opinions of Rikki Cook, LMHC, to be not persuasive.10 12 As to the sequential disability analysis, the ALJ found: 13 • Step one: Plaintiff had not engaged in substantial gainful activity 14 since October 15, 2019, the date of her application. 15 • Step two: Plaintiff had the following medically determinable severe
16 impairments: degenerative joint disease, bilateral knees; 17 18
19 8 AR 15-33. Per 20 C.F.R. § 416.920(a)–(g), a five-step evaluation determines 20 whether a claimant is disabled. 21 9 AR 27-32. 22 10 AR 25-26. 23 1 patellofemoral arthritis, right knee; depression; and adjustment 2 disorder.
3 • Step three: Plaintiff did not have an impairment or combination of 4 impairments that met or medically equaled the severity of one of the 5 listed impairments. 6 • RFC: Plaintiff had the RFC to perform light work with the following 7 exceptions: 8 She can frequently crouch and crawl but can only occasionally kneel. She is able to understand, remember and carry out 9 simple, routine tasks; can maintain concentration, persistence and pace for 2-hour intervals between regularly scheduled 10 breaks; and requires a predictable work environment with seldom change. 11 • Step four: Plaintiff has no past relevant work. 12 • Step five: considering Plaintiff’s RFC, age, education, and work 13 history, Plaintiff could perform work that existed in significant 14 numbers in the national economy, such as a collator operator (DOT 15 208.685-010), merchandise marker (DOT 209.587-034), and family 16 storage rental clerk (DOT 295.367-026).11 17 Plaintiff timely requested review of the ALJ’s decision by the Appeals 18 Council and now this Court.12 19 20
21 11 AR 20-28. 22 12 AR 176. 23 1 II. Standard of Review 2 The ALJ’s decision is reversed “only if it is not supported by substantial
3 evidence or is based on legal error,”13 and such error impacted the nondisability 4 determination.14 Substantial evidence is “more than a mere scintilla but less than 5 a preponderance; it is such relevant evidence as a reasonable mind might accept as 6 adequate to support a conclusion.”15 7 III. Analysis 8 Plaintiff seeks relief from the denial of disability on two grounds. She argues 9 the ALJ erred when evaluating the medical opinions and when evaluating
11 13 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). See 42 U.S.C. § 405(g). 12 14 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), superseded on other 13 grounds by 20 C.F.R. § 416.920(a) (recognizing that the court may not reverse an 14 ALJ decision due to a harmless error—one that “is inconsequential to the ultimate 15 nondisability determination”). 16 15 Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 17 1997)). See also Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The 18 court “must consider the entire record as a whole, weighing both the evidence that 19 supports and the evidence that detracts from the Commissioner's conclusion,” not 20 simply the evidence cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 21 143 F.3d 383, 386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does 22 not indicate that such evidence was not considered[.]”). 23 1 Plaintiff’s subjective complaints.16 As is explained below, the Court concludes that 2 the ALJ consequentially erred in her evaluation of the medical opinion evidence.
3 A. Medical Opinion: Plaintiff establishes consequential error 4 Plaintiff argues the ALJ erred in her evaluation of the medical opinions.17 5 Specifically, Plaintiff first argues that the ALJ erred in finding the opinions of 6 LMHC Cook to be not persuasive because LMHC Cook never personally examined 7 Plaintiff, the opinions were inconsistent with the overall record, and the opinions 8 were specifically contradicted by the findings of the consultative examiner, Dr. 9 Linda Lindman, who was more qualified than LMHC Cook. Plaintiff also argues
10 that the ALJ erred in rejecting Dr. Davis-Boozler’s limitation to walking for four 11 hours because her reasoning that the limitation was “vague” is not supported by 12 substantial evidence. 13 14 15
17 16 Plaintiff also avers that these errors resulted in an improper determination at 18 step five. 19 17 An ALJ must consider and articulate how persuasive she found each medical 20 opinion, including whether the medical opinion was consistent with and supported 21 by the record. 20 C.F.R. § 416.920c(a)–(c); Woods v. Kijakazi, 32 F.4th 785, 792 (9th 22 Cir. 2022). 23 1 1. Standard 2 The ALJ was required to consider and evaluate the persuasiveness of the
3 medical opinions and prior administrative medical findings.18 The factors for 4 evaluating the persuasiveness of medical opinions and prior administrative 5 medical findings include, but are not limited to, supportability, consistency, 6 relationship with the claimant, and specialization.19 Supportability and consistency 7 are the most important factors,20 and the ALJ must explain how she considered the 8 supportability and consistency factors when reviewing the medical opinions and 9 support her explanation with substantial evidence.21 The ALJ may consider, but is
10 not required to discuss the following additional factors: the source’s relationship to 11 Plaintiff such as length of the treatment, purpose of the treatment relation and 12 whether the source examined Plaintiff, as well as whether the source had advanced 13 training or experience to specialize in the area of medicine in which the opinion 14 15
16 18 20 C.F.R. § 416.920c(a), (b). 17 19 20 C.F.R. § 416.920c(c)(1)–(5). 18 20 Id. § 416.920c(b)(2). 19 21 Id. § 416.920c(b)(2); Woods v. Kijakazi, 32 F.4th a at 785 (“The agency must 20 articulate . . . how persuasive it finds all of the medical opinions from each doctor 21 or other source and explain how it considered the supportability and consistency 22 factors in reaching these findings.”) (cleaned up). 23 1 was being given.22 When considering the ALJ’s findings, the Court is constrained to 2 the reasons and supporting explanation offered by the ALJ.23
3 2. Plaintiff’s Testimony 4 On June 29, 2022, Plaintiff appeared with her attorney for a telephone 5 hearing before ALJ Palachuk.24 The Plaintiff testified and a vocational expert, 6 Mark Mann, testified.25 At the hearing, Plaintiff’s attorney moved to amend her 7 onset date to coincide with the protective filing date of October 15, 2019.26 Plaintiff 8 testified that in October of 2019 she was trying to do some in-home childcare but 9 was not able to watch children properly due to panic attacks.27 When she got the
10 panic attacks, it was hard to do anything.28 Plaintiff stated that she able to 11 complete state training in 2021 to be paid by the state to care for the children of a 12 friend.29 Plaintiff said that she watched her friend’s one-year-old and four-year-old 13
14 22 Id. 15 23 See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (recognizing court 16 review is constrained to the reasons the ALJ gave). 17 24 AR 36-58. 18 25 Id. 19 26 AR 41. 20 27 AR 41-42. 21 28 Id. 22 29 Id. 23 1 children on a full-time basis until her friend moved to Utah.30Plaintiff said that she 2 started watching them at the friend’s home but later watched them at her own
3 home to reduce the number of panic attacks.31 She said that she has panic attacks 4 four times a week.32 5 Plaintiff said that when she has a panic attack she has a hard time 6 breathing and needs to be alone for thirty to forty-five minutes.33 The coping 7 techniques do not always work and half of the time she does not fully recover for an 8 extended time.34 She has missed appointments because she could not leave the 9 house due to a panic attack.35 She said that if she was watching the children when
10 she had a panic attack she would put on a show for them and would then sit by 11 herself and try to calm down.36 When the children were in the room, it took longer 12 to calm down.37 Plaintiff said that she tried to do a day of shadowing a delivery 13 14
15 30 AR 43. 16 31 Id. 17 32 Id. 18 33 AR 44. 19 34 Id. 20 35 Id. 21 36 AR 45. 22 37 Id. 23 1 driver for Crumble Cookies.38 If she were to get a job as a fill-in delivery driver she 2 would need to be able to bake, box, and deliver cookies.39 Plaintiff thought she
3 would be able to do the job because it had limited public contact but on her first 4 day she had a panic attack.40 5 Plaintiff said that eight percent of the time that she leaves home she will 6 have a panic attack so she is usually either late for her appointments or needs to 7 cancel them.41 She said that she needs to go home after being out for an hour.42 8 Plaintiff testified that earlier in the year she had not been able to take her 9 medication because she did not have a primary care provider and her mental
10 health declined as a result, with her having more panic attacks.43 11 Plaintiff testified that prior to her knee replacement surgery she could only 12 stand for twenty to thirty minutes a day, but that after the surgery she was able to 13 walk on it for up to twenty-five minutes a day and stand for longer.44 Plaintiff said 14 that before the surgery she could only stand for up to thirty minutes about three 15
16 38 Id. 17 39 AR 45-46. 18 40 AR 46. 19 41 Id. 20 42 AR 47. 21 43 Id. 22 44 AR 48. 23 1 times a day and that after the surgery she could stand for that amount of time 2 about six times a day.45 She testified that it took about six months of recovery after
3 the surgery for her to be able to stand or walk for that long.46 Plaintiff stated that 4 she can lift ten to fifteen pounds and that her hand will go numb if she lifts more.47 5 She also said that her knee will lock or give out if she lifts more than fifteen 6 pounds.48 She said that when she was babysitting she would have the child crawl 7 into her lap so she did not need to lift them.49 She said that her medication makes 8 it hard to focus and she has a hard time focusing when she is out in public with 9 more than three or four people.50 She said that when she has a panic attack it is
10 hard to concentrate on anything.51 She said that sometimes she cannot focus for 11 the whole day and needs to lie down for about forty-five minutes to rest due to low 12 energy.52 13 14
15 45 AR 48-49. 16 46 AR 49. 17 47 Id. 18 48 AR 50. 19 49 Id. 20 50 AR 51. 21 51 Id. 22 52 AR 52. 23 1 The ALJ asked the VE to assume that Plaintiff had a high school education 2 and no work experience.53 VE testified that an individual of Plaintiff’s age,
3 education, and work experience who was limited to light work, and with all 4 posturals performed frequently except for kneeling which would only be performed 5 occasionally, the individual could perform the following jobs: collator operator 6 (DOT 208.685-010), merchandise marker (DOT 209.587-034), and rental clerk 7 (DOT 295.367-026).54 The ALJ then gave a second hypothetical in which the 8 individual would be limited to all postural occasionally, and would have the 9 following additional limitations: able to understand, remember, and carry out
10 simple tasks; could maintain concentration, persistence, and pace on simple 11 routine tasks for the two-hour interval between breaks; and needs to be in a 12 predictable environment with seldom change.55 The VE testified that the three jobs 13 identified could still be performed.56 The VE testified that the only aspect of his 14 testimony not addressed by the DOT was that regarding a predictable 15
16 17 18
19 53 AR 54. 20 54 AR 54-55. 21 55 AR 55. 22 56 Id. 23 1 environment.57 He said that his testimony regarding a predictable environment 2 was based on his 30 years of field experience.58
3 The VE testified that the individual could be absent one day per month and 4 off-task no more than ten percent.59 He stated that an individual who took 5 unscheduled breaks of twenty to thirty minutes three times a week would not be 6 able to maintain employment.60 7 3. Relevant Medical Records 8 a. Physical impairments 9 i. Trios Health
10 On March 12, 2019, Plaintiff presented to ARNP Joshua Anderson, 11 requesting a new referral for insurance purposes to Dr. Jacob Stanfield for her 12 knee.61 On examination, Plaintiff reported that she stopped seeing her psychiatrist 13 due to personality conflict and was recently experiencing depression and anxiety 14 15
16 17
18 57 Id. 19 58 Id. 20 59 AR 56. 21 60 AR 56-57. 22 61 AR 342. 23 1 with fatigue.62 She was in no acute distress and was ambulating normally.63 She 2 was diagnosed with pain in her right knee and major depressive disorder.64
3 On March 28, 2019, Plaintiff presented to ARNP Anderson with complaints 4 of injury to her left wrist after tripping and falling.65 On examination, she was 5 ambulating normally, was in no acute distress, and had tenderness to palpation 6 over the left distal ulna.66 An x-ray indicated no fracture.67 7 On May 13, 2019, Plaintiff presented to ARNP Anderson with acute 8 pharyngitis.68 On examination, she had muscle ache, muscle weakness and pain in 9 her right shoulder with abduction and circumduction, and was tender on palpation
10 and was painful with abduction and extension beyond 90 degrees or with any 11 circumduction.69 12 13 14
15 62 Id. 16 63 Id. 17 64 AR 342-343. 18 65 AR 340. 19 66 Id. 20 67 AR 345. 21 68 AR 336. 22 69 AR 338. 23 1 On September 3, 2019, Plaintiff presented to Adam Smith, DO, at Trios 2 Health for an annual OB-GYN exam.70 On examination, Plaintiff reported hot
3 flashes as well as knee pain and the need for a knee replacement.71 4 ii. Kadlec Orthopedic 5 On December 13, 2018, Plaintiff presented to Doyle Miller, MD, with 6 complaints of progressively worsening pain in her right knee.72 She reported 7 constant aching with a stabbing pain rated at a 9 out of 10, and swelling and 8 locking of the knee.73 Plaintiff also reported that the pain was worse at night.74 On 9 examination, Plaintiff was anxious with dysphoric mood and sleep disturbance;
10 and had tenderness to the medial joint line and medial patellar facet.75 All results 11 were within normal limits other than tenderness in the patellar region.76 Plaintiff 12 was sent for an MRI of the right knee, which revealed advanced degeneration of 13 the patellofemoral compartment with full-thickness chondral loss; large knee-joint 14 15
16 70 AR 331. 17 71 AR 333. 18 72 AR 407. 19 73 Id. 20 74 Id. 21 75 AR 408-409. 22 76 Id. 23 1 effusion; and degenerative free edge fraying of the lateral meniscal body.77 Plaintiff 2 was diagnosed with right knee degenerative joint disease (DJD) with severe
3 patellofemoral arthritis.78 Dr. Miller advised that Plaintiff should not have 4 arthroscopic surgery due to her age but should attempt to manage the condition 5 with conservative treatment and get a total knee replacement if her pain 6 persisted.79 7 On March 13, 2019, Plaintiff presented to Jacob Stanfield, MD, following an 8 injection.80 Plaintiff reported continued severe pain as a result of her “significant 9 patellofemoral osteoarthritis.”81 Dr. Stanfield noted that Dr. Miller felt
10 arthroscopic surgery would not be beneficial and noted that on examination 11 Plaintiff experienced tenderness in the medial joint line, medial retinaculum, 12 lateral retinaculum, and Plica.82 Dr. Stanfield thought that Plaintiff would be a 13 good candidate for knee replacement but should exhaust conservative treatments 14 such as injections and radiofrequency ablation due to her age.83 15
16 77 AR 408-409. 17 78 AR 409. 18 79 Id. 19 80 AR 410. 20 81 Id. 21 82 Id. 22 83 AR 411. 23 1 On March 17, 2019, Plaintiff underwent an intracapsular lidocaine injection 2 to the right knee performed by Arash Motagi, DO.84 On examination, Plaintiff’s
3 gait was antalgic.85 Plaintiff was diagnosed with chronic pain in her right knee 4 “due to significant amount of degeneration and arthritis in her right knee.”86 5 Dr. Motaghi noted that Plaintiff’ had tried conservative therapies with minimal 6 relief and he recommended a right knee genicular nerve block, as doctors were 7 attempting to postpone knee replacement due to Plaintiff’s age.87 On May 15, 2019, 8 Plaintiff returned to Dr. Motaghi, reporting only mild relief from the nerve block 9 performed.88.Dr. Motaghi assessed Plaintiff with chronic pain of the right knee and
10 opined that she received eighty-percent relief from the genicular nerve blocks.89 11 Dr. Motaghi suggested that Plaintiff should undergo radiofrequency ablation.90 12 On June 10, 2019, Plaintiff presented to Dr. Stanfield reporting that her 13 recent radiofrequency ablation had given her only minimal relief and that she 14 15
16 84 Id. 17 85 AR 415. 18 86 Id. 19 87 Id. 20 88 AR 416-417. 21 89 AR 420. 22 90 Id. 23 1 needed a steroid injection in her knee.91 On examination, Plaintiff had tenderness 2 at the medial joint line, medial retinaculum, lateral retinaculum, and Plica.92
3 Dr. Stanfield administered an injection and assessed her as suffering from primary 4 osteoarthritis of the right knee.93 He opined that Plaintiff was young for a knee 5 replacement surgery but it was likely her only option due to significant 6 degenerative changes in her knee.94 Dr. Stanfield recommended that Plaintiff try 7 to manage symptoms for as long as possible before scheduling the knee 8 replacement.95 On September 11, 2019, Plaintiff presented to Dr. Stanfield seeking 9 an injection for her right knee.96 On examination, Plaintiff exhibited pain and
10 crepitus with motion.97 Dr. Stanfield noted that Plaintiff had attempted injections, 11 radiofrequency ablation, bracing, and anti-inflammatories, as well as physical 12 therapy but not gotten relief.98 Because pain symptoms were interfering with her 13 14
15 91 AR 421. 16 92 Id. 17 93 AR 422. 18 94 Id. 19 95 Id. 20 96 AR 422-423. 21 97 AR 423. 22 98 AR 424. 23 1 activities of daily living, Plaintiff was seeking permanent treatment.99 2 Dr. Stanfield noted that conservative measures had failed and that he had
3 counseled against knee replacement if possible, but symptoms were severe and 4 conservative measures were not helpful, so knee replacement would be considered 5 in the summer.100 6 iii. Dr. Davis-Boozler 7 On January 24, 2021, Plaintiff was examined by David Davis-Boozler, MD, 8 at the request of the Commissioner.101 Dr. Davis-Boozler noted that he reviewed 9 the records of Dr. Stanfield from June 10, 2019, and December 18, 2019.102
10 Plaintiff reported that she had bilateral knee pain which progressed over the last 11 two to three years, and that she had a right knee replacement and later a 12 manipulation under anesthesia.103 She also reported left foot pain due to a ganglion 13 cyst and chronic fatigue for the past twelve months.104 Plaintiff reported that she 14 lived with her three children and ran a babysitting service, and was able to do such 15
17 99 Id. 18 100 AR 425. 19 101 AR 850-856. 20 102 AR 851. 21 103 Id. 22 104 AR 852. 23 1 activities as cooking, cleaning, shopping, and yard work.105 On examination, 2 Plaintiff’s blood pressure was elevated; she was appropriately dressed and showed
3 no unusual habits or distress; she had a normal gait and was able to rise from a 4 chair and the table without help; Plaintiff could walk on her heels and toes, 5 balance, bend and squat halfway; straight leg testing was negative; motor function 6 and strength were normal in all extremities; range of motion was normal in all 7 extremities with the exception of limited flexion in the knees; and sensory 8 examination was normal in all extremities.106 Dr. Davis-Boozler diagnosed Plaintiff 9 with bilateral knee pain with good prognosis; left foot pain with good prognosis;
10 and chronic fatigue with good prognosis.107 11 An X-ray of the left foot taken on January 26, 2021, indicated no acute 12 injury.108 13 b. Mental impairments 14 i. Three Rivers Therapy 15 On July 24, 2019, Plaintiff presented to Diana Crane, care coordinator, for
16 initial evaluation.109 Plaintiff reported that she had PTSD and it was difficult to 17
18 105 Id. 19 106 AR 853-855. 20 107 AR 855. 21 108 AR 857. 22 109 AR 593. 23 1 leave her home following a divorce in 2017.110 Plaintiff reported stresses due to her 2 relationship with her ex-husband and finances.111 Plaintiff reported that she was
3 supporting herself, her children, and her mother with what she made as a full-time 4 daycare manager.112 Ms. Crane assessed Plaintiff with generalized anxiety 5 disorder and major depressive disorder, single episode, mild.113 6 On September 10, 2019, Plaintiff presented to ARNP Debra Pugh for initial 7 evaluation.114 Plaintiff reported that the medication she had been taking for the 8 last two years was not effective and that she was struggling financially after a 9 divorce and having to subsist on her salary as a full-time daycare manager.115
10 Plaintiff reported that she completed high school and attended some college.116 11 Plaintiff also reported that she had stress because after her divorce she was not 12 allowed visitation with her step-daughter, and her ex-husband was seeking custody 13 of their shared children. On mental status examination, Plaintiff was dressed 14 appropriately; had good eye contact; had normal speech volume and rate; had a 15
16 110 Id. 17 111 Id. 18 112 Id. 19 113 AR 596. 20 114 AR 573. 21 115 Id. 22 116 AR 574. 23 1 sad, depressed and anxious mood; had intact insight, judgment, memory, 2 concentration, and thought content; had no homicidal or suicidal ideations; but had
3 a poor body image.117 ARNP Pugh diagnosed Plaintiff with generalized anxiety 4 disorder and major depressive disorder, single episode, mild.118 5 On October 29, 2019, Plaintiff presented to ARNP Pugh for evaluation.119 6 ARNP Pugh noted a lot of stress related to Plaintiff’s financial situation.120 On 7 mental status examination, Plaintiff was dressed appropriately; had good eye 8 contact; had normal speech volume and rate; had a sad, depressed and anxious 9 mood; had intact insight, judgment, memory, and concentration; and had normal
10 thought content with no homicidal or suicidal ideations.121 ARNP Pugh diagnosed 11 Plaintiff with generalized anxiety disorder and major depressive disorder, single 12 episode, mild.122 One week later, on November 5, 2019, Plaintiff presented to 13 counselor Nelda Gonzalez123, who found on mental status examination that 14 Plaintiff had appropriate dress, good eye contact, rapid/pressured and slurred 15
16 117 AR 574-575. 17 118 AR 576. 18 119 AR 556. 19 120 Id. 20 121 AR 557. 21 122 AR 559. 22 123 It does not appear that Ms. Gonzalez has a title or license. 23 1 speech, euthymic mood, tangential thought content, intact insight and judgment, 2 intact memory, and intact attention and concentration.124
3 On December 16, 2019, Plaintiff presented to Nelda Gonzalez, who found on 4 mental status examination that Plaintiff had appropriate dress, good eye contact, 5 rapid/pressured and slurred speech, euthymic mood, tangential thought content, 6 intact insight and judgment, intact memory, and intact attention and 7 concentration.125 The next day, on December 17, 2019, Plaintiff presented to ARNP 8 Pugh, and reported that the medication she had been taking for the last two years 9 was not working.126 Plaintiff complained of mostly financial struggles following
10 divorce from her husband and the need to live off her earnings as a day care 11 manager.127 On mental status examination, Plaintiff had appropriate dress, good 12 eye contact, normal speech, depressed and anxious mood, goal directed and 13 organized thought content, intact insight and judgement, intact memory, intact 14 concentration and attention and no homicidal or suicidal ideation.128 ARNP Pugh 15
18 124 AR 552-555. 19 125 AR 540. 20 126 AR 532. 21 127 AR 532. 22 128 AR 533-534. 23 1 diagnosed generalized anxiety disorder and major depressive disorder, single 2 episode, mild.129
3 On January 16, 2020, Plaintiff presented to Nelda Gonzalez.130 On 4 examination, Ms. Gonzalez noted that Plaintiff had rapid and slurred speech and a 5 tangential thought process, but otherwise found normal mental status findings.131 6 On January 28, 2020, Plaintiff presented to Nelda Gonzalez.132 Her main 7 complaint was the stress of raising her children after divorce from her husband.133 8 Plaintiff reported that she was not taking medication for her anxiety.134 On 9 examination, Ms. Gonzalez again noted that Plaintiff had rapid and slurred speech
10 and a tangential thought process, but otherwise found normal mental status 11 findings.135 12 13 14 15
16 129 AR 535. 17 130 AR 519. 18 131 AR 524. 19 132 AR 514. 20 133 Id. 21 134 Id. 22 135 AR 518. 23 1 On February 25, 2020, Plaintiff presented to ARNP Pugh for follow up.136 2 Plaintiff reported full-time work as a day care manager in her home.137 On
3 examination Plaintiff was alert, concentration was “ok”, appearance was 4 appropriate, behavior was normal, speech was normal, mood was depressed and 5 anxious, insight and judgment were intact and concentration and attention were 6 intact.138 ARNP Pugh assessed generalized anxiety disorder and major depressive 7 disorder, single episode, mild.139 On February 27, 2020, Plaintiff presented to 8 Nelda Gonzalez with complaints that she felt anxious when her children were 9 visiting their father.140 On examination, her mental status was in normal limits
10 other than tangential thought and speech abnormalities.141 11 On May 26, 2020, Plaintiff presented to ARNP Pugh.142She reported worry 12 that her children would need to remote learn due to the virus and reported that she 13 had a knee replacement.143 On examination, Plaintiff was clean, friendly, alert, and 14
15 136 AR 502. 16 137 Id. 17 138 AR 502-503. 18 139 AR 505. 19 140 AR 495. 20 141 AR 500. 21 142 AR 486. 22 143 Id. 23 1 had good eye contact, appropriate mood and affect, normal thought process and 2 content, normal speech, intact concentration and attention, and good insight.
3 On July 27, 2020, Plaintiff presented to ARNP Pugh.144 She reported 4 annoyance that her children were not doing work at home due to Covid.145 On 5 examination, she was alert and oriented, and ARNP Pugh opined that her 6 functional status was good.146 Plaintiff was clean, friendly, alert, and had good eye 7 contact, appropriate mood and affect, normal thought process and content, intact 8 concentration and attention, and good insight.147 9 On August 3, 2020, Plaintiff reported stress and anxiety due to children’s
10 visitation with their father.148 She reported that she was still watching children.149 11 On September 3, 2020, Plaintiff presented to Nelda Gonzalez and reported 12 that her depression was improving.150 On examination, Plaintiff was appropriately 13 dressed and cooperative, her mood was euthymic, she was goal-directed with 14 15
16 144 AR 464. 17 145 AR 464. 18 146 AR 464-465. 19 147 AR 465-466. 20 148 AR 462. 21 149 Id. 22 150 AR 450. 23 1 normal thought content and intact insight, and her memory and attention were 2 intact.151
3 On October 5, 2020, Plaintiff presented to ARNP Debra Pugh stating that 4 “things are going crazy.”152 Plaintiff reported that her prescribed medications were 5 helping her anxiety and depression.153 On examination, Plaintiff was clean, 6 friendly, alert, had good eye contact, had appropriate mood and affect, had normal 7 speech, had normal gait, was goal directed with normal thought content, had intact 8 attention and concentration, had good insight and judgment, and had good 9 immediate memory.154 ARNP Pugh assessed generalized anxiety disorder, and
10 major depressive disorder, single episode, mild.155 11 On October 7, 2020, Plaintiff presented to Nelda Gonzalez reporting extreme 12 anxiousness and irritability due to her struggles with homeschooling her 13 children.156 On examination her behavior, mood, speech, thought content, insight, 14 and concentration were within normal limits.157 On October 14, 2020, Plaintiff 15
16 151 Id. 17 152 AR 446. 18 153 Id. 19 154 AR 447-448. 20 155 AR 448. 21 156 AR 444. 22 157 Id. 23 1 presented to Ms. Gonzalez and reported that she was having hard time with home 2 schooling her children.158 On examination, Plaintiff was appropriately dressed and
3 cooperative, her mood was euthymic, she was goal directed with normal thought 4 content and intact insight, and her memory and attention were intact.159 On 5 October 28, 2020, Plaintiff presented to Ms. Gonzalez and reported that she was 6 having a hard time home schooling her children.160 On examination, Plaintiff was 7 appropriately dressed and cooperative, her mood was euthymic, she was goal 8 directed with normal thought content and intact insight, and her memory and 9 attention were intact.161
10 In June of 2021, Plaintiff reported financial struggles following the loss of 11 two of the children she babysat.162 On July 21, 2021, Plaintiff presented to Ms. 12 Gonzalez and reported that she applied for a job and had a panic attack during a 13 job shadow.163 However, on July 12, 2021, Plaintiff presented to ARNP Pugh, and 14 reported that things are better; that her depression and anxiety were improving; 15
17 158 AR 442. 18 159 Id. 19 160 AR 440. 20 161 Id. 21 162 AR 1105. 22 163 AR 1096. 23 1 and that she has days that are manageable and other days not so good.164 On 2 mental status examination, Plaintiff was friendly and cooperative, with
3 appropriate mood and affect, normal speech, normal speech, goal directed thought 4 process, normal thought content, intact concentration, intact judgment, good 5 insight, intact memory, and good attention span.165 Throughout 2021, Plaintiff 6 presented to Ms. Gonzalez with reports that she was anxious and stressed due to 7 parenting issues and her mother’s health.166 8 On February 10, 2022, Plaintiff presented to Nelda Gonzalez, and reported 9 that her ex-husband had a new girlfriend and that the additional stress of her son’s
10 behavior in school increased her anxiety.167 On March 21, 2022, Plaintiff presented 11 to Ms. Gonzalez, reporting that her ex-husband was re-marrying and she was 12 upset.168 Ms. Gonzalez noted that Plaintiff’s primary impairment was frequent 13 anxiety.169 On April 25, 2022, Plaintiff presented to Ms. Gonzalez and reported 14 15
16 164 AR 1098. 17 165 AR 1098-1099. 18 166 AR 1065, 1068, 1070, 1072, 1074, 1076, 1078, 1080, 1082, 1084, 1086, 1088, 1090, 19 1092, 1094, 1096, 1101, and 1103. 20 167 AR 1072. 21 168 AR 1065. 22 169 Id. 23 1 feeling stressed and anxious due to parenting issues.170 Ms. Gonzalez noted little 2 progress in reaching Plaintiff’s goals.171
3 On March 17, 2022, Plaintiff presented to ARNP Gloria Olsson seeking care, 4 and reporting that she had not been seen for two years since her former provider, 5 Dr. Pugh, left the practice.172 Plaintiff reported frequent headaches since being off 6 medications and dysphoric mood and anxiety.173 On examination, ARNP Olsson 7 opined that Plaintiff had normal mood and affect as well as normal behavior.174 On 8 March 25, 2022, Plaintiff presented to ARNP Olsson and reported that she felt 9 good on her medication and was not as emotional.175 On examination, Plaintiff had
10 normal mood and affect and normal behavior.176On April 13, 2022, Plaintiff 11 returned to ARNP Olsson for follow-up and reported that she was having 12 headaches.177 Plaintiff’s blood pressure was elevated and on examination she had 13 14
15 170 AR 1060. 16 171 AR 1061. 17 172 AR 1109. 18 173 Id. 19 174 AR 1110. 20 175 AR 1112. 21 176 AR 1112-1113. 22 177 AR 1114. 23 1 normal behavior and normal mood and affect.178 ARNP Olsson noted that 2 depression had improved and increased the dosage of Venlafaxine to address
3 headaches.179 4 On June 28, 2022, LMHC Rikki Cook, the clinical director for Three Rivers 5 Therapy, completed a Mental Residual Functional Capacity Form.180 6 ii. Dr. Linda Lindman 7 On November 12, 2020, Linda Lindman, PhD, examined Plaintiff at the 8 request of the Commissioner.181 Plaintiff reported depression that began in her 9 twenties and current symptoms of lack of motivation, fatigue, feelings of
10 worthlessness and hopelessness, and irritability.182 Plaintiff reported the following 11 symptoms of anxiety: jitteriness, excessive worry, sleep problems, and poor 12 concentration.183 She reported that her symptoms worsened after her marriage 13 broke up three years prior.184 Plaintiff reported that problems with her children 14 15
16 178 AR 1115. 17 179 Id. 18 180 AR 1122-1126. 19 181 AR 598-604. 20 182 AR 598. 21 183 Id. 22 184 Id. 23 1 increased symptoms and engaging in hobbies relieved them185 Plaintiff reported 2 being in special education but having attended college.186 She reported that she
3 watched her own children and babysat for six other children and had done so for 4 the past three years.187 On examination, Plaintiff was appropriately dressed, her 5 attitude was open and agreeable, her behavior was unremarkable, her mood and 6 affect were anxious, her speech was normal and thought process was goal directed, 7 she was oriented, her memory was good, her fund of knowledge was within normal 8 limits, her concentration was not impaired, and she was able to engage in abstract 9 thinking.188 Plaintiff stated that she needed no assistance with activities of daily
10 living.189 Dr. Lindman diagnosed adjustment disorder with depressed mood and 11 anxiety.190 12 Dr. Lindman opined that Plaintiff is able to reason and understand; that she 13 is able to adapt; that her immediate memory is mildly impaired; that her remote 14 and recent memory are unimpaired; that her attention and concentration are 15 unimpaired; her ability to interact with coworkers and the public is not impaired;
17 185 AR 599. 18 186 Id. 19 187 Id. 20 188 AR 600-601. 21 189 AR 601. 22 190 AR 602. 23 1 her ability to maintain regular attendance is not impaired; her ability to complete a 2 normal work week is not impaired; and that her ability to deal with stress is mildly
3 impaired if it deals with complex work-related decisions.191 4 4. Analysis 5 a. The ALJ’s consideration of Dr. Davis-Boozler’s opinion 6 regarding Plaintiff’s ability to stand 7 Dr. Davis-Boozler examined Plaintiff at the request of the Commissioner on 8 January 24, 2021.192 Dr. Davis-Boozler conducted a fairly thorough examination 9 and reviewed treatment records from Dr. Stanfield which documented a total knee
10 replacement in Plaintiff’s right leg.193 11 Dr. Davis-Boozler assessed that Plaintiff is capable of walking at least four 12 hours, has no limitation in sitting, does not need an assistive device, can lift twenty 13 pounds occasionally and ten pounds frequently.194 He listed the following postural 14 limitations: no climbing or balancing and occasional stooping, kneeling, crouching 15 and crawling.195 He opined that Plaintiff had no manipulative limitations and no
18 191 AR 602-603. 19 192 AR 850-856. 20 193 Id. 21 194 AR 855. 22 195 AR 855-856. 23 1 environmental limitations.196 With regard to the limitation to sitting, Dr. Davis- 2 Boozler noted that the four-hour limitation to sitting might increase or relax based
3 upon Plaintiff’s recovery from right knee arthroplasty.197 4 The ALJ found Dr. Davis-Boozler’s opinion somewhat persuasive and in 5 doing so stated the following reasoning: 6 The opinion of David Davis-Boozer, M.D. is somewhat persuasive. (Ex. 13F). Dr. Davis-Boozer opines that the claimant is limited to light 7 work; can stand/walk for at least four hours in an eight-hour workday; and can occasionally stoop, kneel, crouch, and crawl. (Ex. 13F). This 8 opinion is supported by Dr. Davis-Boozer’s own examination, during which the claimant demonstrated limited flexion of the knees and 9 slightly reduced strength of the right lower extremity. (Ex. 13F, Page 5). It is also generally consistent with the overall record, which 10 reflects that the claimant has on occasion demonstrated an antalgic gait. (Ex. 4F, Page 15). However, his opinion is somewhat vague in 11 that he opined the claimant could stand/walk “at least” 4 hours in an 8-hour day, which is not an opinion as to the MOST the claimant can 12 do. The undersigned is charged with establishing a residual functional capacity of the MOST the claimant can do. Based upon the overall 13 record with generally normal gait and normal strength, as well as, documented improvement following a surgery only 7 months after the 14 alleged onset date, the undersigned concludes the record supports that claimant can stand/walk the typical requirement for light work and 15 would not be limited to less (such as only 4 hours).
16 The ALJ’s reasoning is flawed for two reasons. First, the ALJ errs in stating 17 that Dr. Davis-Boozler’s opinion that Plaintiff can stand “at least” four hours is 18 vague. When read in context the opinion it is not vague and clearly reflects that 19 Dr. Davis-Boozler opined that, at the time of his examination of Plaintiff, she was 20
21 196 AR 856. 22 197 AR 855. 23 1 not capable of completing the standard six-hours standing or walking required for 2 light work. Context is crucial as “treatment records must be viewed in light of the
3 overall diagnostic record.”198 4 Dr. Davis-Boozler was a consultative examiner who examined Plaintiff and 5 rendered opinions at the request of the Commissioner. As an experienced 6 consultant for the Administration, he was familiar with the regulations and 7 policies and was aware that the exertional limitations of light work required 8 standing or walking for six hours. He did not opine that Plaintiff was capable of 9 standing and walking for six hours. Dr. Davis-Boozler stated clearly that Plaintiff
10 was not fully recovered from her right knee replacement and that at the time of her 11 examination she could reasonably be expected to be able to stand and/or walk for 12 “at least” four hours, indicating that the ability to stand or walk for longer periods 13 was not clear pending recovery. 14 Second, the ALJ’s reasoning is flawed because she failed to understand Dr. 15 Davis-Boozler’s clear opinion that Plaintiff had not fully recovered from her right
16 knee replacement and that for the period prior to Plaintiff’s surgery and for, by the 17 ALJ’s reasoning, at least seven months thereafter she was further limited in her 18 ability to function. The records indicate that Plaintiff’s function improved following 19 her right knee replacement but that prior to the surgery she was quite limited. A 20 claimant’s improvement with treatment is “an important indicator of the intensity 21
22 198 Ghanim, 763 F.3d at 1164. 23 1 and persistence of . . . symptoms.”199 Symptom improvement, however, must be 2 weighed within the context of an “overall diagnostic picture.”200
3 The ALJ erred by discounting both Plaintiff’s symptom reports and 4 Dr. Davis-Boozler’s opinions regarding her ability to walk for the entire alleged 5 disability period. The record does not show that Plaintiff’s symptoms with regard to 6 her right knee improved until at the very least seven months after her surgery, and 7 if Dr. Davis-Boozler’s opinion is to be given full-credit, even as of January 2021 8 Plaintiff had not improved to the extent that she could engage in light work. 9 Despite Dr. Davis-Boozler’s statement that Plaintiff was not fully recovered
10 from her surgery and that she was capable of standing and walking at least four 11 hours but not longer, the ALJ relied upon her own judgement as to the additional 12 limitations which might have resulted from Plaintiff’s recovery. This is error. 13 First, there is no indication that the ALJ has medical training which would allow 14 her to interpret the raw medical data and make her own medical assessment of the 15
16 199 20 C.F.R. § 416.929(c)(3). See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 17 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with 18 medication are not disabling for the purpose of determining eligibility for SSI 19 benefits.”). 20 200 Holohan v. Massanari, 246 F.3d1195, 1205 (9th Cir. 2001); see also Lester v. 21 Chater, 81 F.3d 821, 833 (9th Cir. 1995) (“Occasional symptom-free periods ... are 22 not inconsistent with disability.”). 23 1 functional limitations following Plaintiff’s surgery.201 Secondly, the ALJ has not 2 explained how she arrived at her conclusions that Plaintiff was capable of standing
3 and walking for the six hours provided for in her formulated RFC. Instead, she 4 offered a conclusory opinion of the expected limitations.202 5 The Court concludes that remand is warranted for the ALJ to properly 6 consider the opinion evidence and to evaluate the record as a whole, including the 7 period preceding Plaintiff’s surgery and the period of recovery immediately 8 following it. 9 b. The ALJ’s consideration of LMHC Cook’s opinions
10 On June 28, 2022, LMHC Cook completed a Mental Residual Functional 11 Capacity Assessment and identified herself as “clinical director.”203 LMHC Cook 12 opined that Plaintiff would have no limitation in the ability to maintain socially 13 appropriate behavior.204 LMHC Cook opined that Plaintiff would be moderately 14 limited regarding the following: the ability to remember locations and work-like 15
16 17 201 ALJs cannot usurp the role of doctors when interpreting medical evidence, 18 particularly highly technical medical evidence. Trevizo v. Berryhill, 871 F.3d 664, 19 683 (9th Cir. 2017). 20 202 See Garrison v. Colvin, 759 F.3d 995, 1013-14 (9th Cir. 2014). 21 203 AR 1121-1125. 22 204 AR 1123. 23 1 procedures; the ability to understand short, simple instruction; the ability to carry 2 out short, simple instructions; the ability to sustain an ordinary routine; the ability
3 to make simple work-related decisions; the ability to ask simple questions; the 4 ability to accept instruction or criticism; the ability to get along with coworkers; the 5 ability to set realistic goals; and the ability to adapt or manage herself.205 LMHC 6 Cook opined that Plaintiff would have a marked limitation regarding the following: 7 the ability to understand and remember detailed instructions; the ability to carry 8 out detailed instructions; the ability to maintain attention and concentration; the 9 ability to perform activities within a schedule; the ability to work in coordination
10 with others; the ability to complete a normal workweek without interruption and 11 without unreasonable breaks; the ability to interact with the public; the ability to 12 respond appropriately to changes in the work setting; the ability to be aware of 13 hazards; and the ability to travel in unfamiliar places.206 LMHC Cook opined that 14 Plaintiff would be off-task 12-20 percent of the time and would be absent two days 15 per month.207
16 The ALJ found LMHC Cook’s opinions not persuasive and in doing so 17 reasoned as follows: 18 Ms. Cook opines that the claimant has marked limitations in all four areas of “paragraph B” criteria and will be off task for up to 20% of the 19
20 205 AR 1122-1124. 21 206 AR 1122-1124. 22 207 AR 1125. 23 1 workday. (Ex. 21F). This opinion is not supported by any noted examination performed by Ms. Cook. It is also not consistent with the 2 overall record, which reflects that the claimant has demonstrated normal memory, mood, attention, and insight. (Ex. 2F, Page 16; Ex. 3F, 3 Page 9; Ex. 4F, Page 11). Moreover, the opinion is specifically contradicted by the findings during the consultative examination (Ex. 4 10F) which was performed by a PhD, who has much more training, experience and expertise than Ms. Cook’s LMHC credentials.208 5 6 Plaintiff argues that the ALJ erred in finding that Ms. Cook’s opinions were 7 contradicted by Dr. Lindman’s findings because the ALJ rejected Dr. Lindman’s 8 findings for being inconsistent with the record; erred in reasoning that LMHC 9 Cook’s opinions were inconsistent with a limited number of examinations; and 10 erred in reasoning that LMHC Cook had not personally examined Plaintiff, 11 without further inquiring what relationship LMHC Cook had to Plaintiff or her 12 counselor, Nelda Gonzalez. 13 First, the Court concludes that Plaintiff’s arguments as to the ALJ’s finding 14 that LMHC Cook’s opinions were inconsistent with Dr. Lindman’s findings is 15 without merit. The ALJ found that LMHC Cook’s opinions were inconsistent with 16 Dr. Lindman’s findings on examination, and not her opinions. But assuming that 17 she had found the opinions inconsistent, there was also no error because the ALJ 18 did not reject Dr. Lindman’s opinions, as Plaintiff asserts, but rather found them 19 somewhat persuasive as opposed to fully persuasive. A finding that an opinion is 20 “somewhat persuasive” cannot reasonably be categorized as a rejection of that 21
22 208 AR 26. 23 1 opinion. The ALJ also did not err in reasoning that Dr. Lindman was better 2 qualified because Dr. Lindman is a licensed psychologist and therefore an
3 acceptable medical source, while LMHC Cook is not an acceptable medical source, 4 pursuant to the regulations.209 It is thus without question that Dr. Lindman was 5 more qualified than LMHC Cook. The opinion of an acceptable medical source is 6 ordinarily entitled to more persuasiveness than that of any non-acceptable medical 7 source or nonmedical source. 8 Additionally, the ALJ did not err in considering that Dr. Lindman had 9 examined Plaintiff and LMHC Cook had neither examined nor treated her. The
10 regulations provide that while the ALJ must discuss the factors of consistency and 11 supportability, and that the ALJ may consider but is not obligated to discuss other 12 factors such as whether the source rendering an opinion had a treating or 13 examining relationship with Plaintiff.210 The ALJ did nothing improper by 14 considering that Dr. Lindman had examined Plaintiff and LMHC Cook had not. 15 While the ALJ cited to a limited number of treatment notes when discussing
16 their inconsistency with LMHC Cook’s opinions, it is notable that each of the 17 treatment notes cited provided which were inconsistent with LMHC Cook’s 18 opinion. Moreover, the findings of the acceptable medical sources, ARNP Joshua 19 Anderson, ARNP Debra Pugh, and ARNP Gloria Olsson all indicated benign 20
21 209 20 C.F.R. § 416.902. 22 210 20 C.F.R. § 416.920c 23 1 findings, which supported the ALJ’s finding that the longitudinal record was not 2 consistent with LMHC Cook’s opinions.
3 The Court finds no error in the ALJ’s consideration of LMHC Cook’s 4 opinions. 5 5. Summary 6 Because the ALJ did not give good reasons for her evaluation of the medical 7 opinions of Dr. Davis-Boozler, a remand is warranted. 8 B. Plaintiff’s Subjective Complaints: The Court finds the issue moot. 9 Plaintiff argues the ALJ failed to properly assess her subjective complaints.
10 As discussed above, the ALJ failed to consider the medical record as a whole when 11 considering the medical opinions. Because the Court has remanded the case for 12 consideration of the record as a whole, the ALJ will be required to consider the 13 credibility of Plaintiff’s subjective complaints. 14 C. Remand for Further Proceedings 15 Plaintiff submits a remand for payment of benefits is warranted. The
16 decision whether to remand a case for additional evidence, or simply to award 17 benefits, is within the discretion of the court.”211 When the court reverses an ALJ’s 18 19 20
21 211 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 22 761 F.2d 530 (9th Cir. 1985)). 23 1 decision for error, the court “ordinarily must remand to the agency for further 2 proceedings.”212
3 The Court finds that further development is necessary for a proper disability 4 determination. Here, it is not clear what, if any, additional limitations are to be 5 added to the RFC. Therefore, the ALJ should properly consider the opinion 6 evidence and make findings at each of the five steps of the sequential evaluation 7 process. 8 IV. Conclusion 9 Accordingly, IT IS HEREBY ORDERED:
10 1. The ALJ’s nondisability decision is REVERSED, and this matter is 11 REMANDED to the Commissioner of Social Security for further 12 proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 13 2. The Clerk’s Office shall TERM the parties’ briefs, ECF Nos. 11 and 14 15, enter JUDGMENT in favor of Plaintiff, and CLOSE the case. 15
19 212 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke 379 F.3d at 595 20 (“[T]he proper course, except in rare circumstances, is to remand to the agency for 21 additional investigation or explanation”); Treichler v. Comm’r of Soc. Sec. Admin., 22 775 F.3d 1090, 1099 (9th Cir. 2014). 23 1 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and 2 || provide copies to all counsel. 3 DATED this 1st day of April 2024. cased I he 5 EDWARD F. SHEA Senior United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
DISPOSITIVE ORDER - 43