Simpson v. Saul

• Court: District Court, N.D. California
• Decided: September 21, 2021
• Docket: 3:20-cv-07168
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBIN S., Case No. 20-cv-07168-JSC

8 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 9 v. SUMMARY JUDGMENT

10 ANDREW M. SAUL, Re: Dkt. Nos. 14, 17 Defendant. 11

12 13 Plaintiff seeks Disability Insurance Benefits (DIB) and Supplemental Security Income 14 Benefits (SSI) for a combination of physical and mental impairments, including: osteoarthritis, 15 disorders of back discogenic and degenerative, carpal tunnel syndrome, slipped hip with chronic 16 pain, adjustment disorder with depressive, high blood pressure, and post-traumatic stress 17 disorder (“PTSD”). (Administrative Record “AR” 112.) Pursuant to 42 U.S.C. § 405(g), 18 Plaintiff filed this lawsuit for judicial review of the partially favorable final decision by the 19 Administrative Law Judge (“ALJ”).1 Now pending before the Court are Plaintiff’s and 20 Defendant’s motions for summary judgment. (Dkt. Nos. 14, 17.) 2 For the reasons stated below, 21 the Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion for summary judgment, 22 and GRANTS IN PART and DENIES IN PART Defendant’s motion for summary judgment, 23 and REMANDS for further proceedings consistent with this Order. 24 // 25 // 26 1 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. 27 Section636(c). (Dkt. Nos. 2, 8.) 1 BACKGROUND 2 A. Procedural History 3 Plaintiff applied for DIB and SSI in April and May of 2014, respectively, alleging a 4 disability since April 30, 2010. (AR 336-39.) The agency denied her claims. (AR 154-58, 167- 5 72.) She requested reconsideration with good cause for late filing, which was denied. (AR 159, 6 166, 167.) She then filed a request for hearing. (AR 174.) Her application was dismissed without 7 prejudice due to her failure to appear for her scheduled court hearing. (AR 142, 269.) The 8 Appeals Council then provided her with another opportunity for a hearing, which was held 9 before an ALJ. (AR 50-69.) The ALJ issued a partially favorable opinion which concluded that 10 the onset date of her disability was on, but not before, June 1, 2018. (AR 20.) Plaintiff 11 subsequently appealed to the Appeals Council which found no reasons to review the ALJ’s 12 decision and denied Plaintiff’s request for review. (AR 1.) 13 In accordance with Civil Local Rule 16-5, the parties filed cross motions for summary 14 judgment. (Dkt. Nos. 14, 17.) 15 B. Issues for Review 16 1. Did the ALJ err in determining that Plaintiff’s mental impairments were non-severe? 17 2. Did the ALJ err in evaluating the medical evidence? 18 3. Did the ALJ err in evaluating the Listings for Plaintiff’s physical and/or mental 19 impairments? 20 4. Should the case be remanded for payment of benefits or for additional proceedings? 21 LEGAL STANDARD 22 A claimant is considered “disabled” under the Social Security Act if she meets two 23 requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 24 First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by 25 reason of any medically determinable physical or mental impairment which can be expected to 26 result in death or which has lasted or can be expected to last for a continuous period of not less 27 than 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the impairment or impairments must be 1 education, and work experience “engage in any other kind of substantial gainful work which 2 exists in the national economy.” Id. § 423(d)(2)(A). 3 To determine whether a claimant is disabled, an ALJ is required to employ a five-step 4 sequential analysis, examining: (1) whether the claimant is engaging in “substantial gainful 5 activity”; (2) whether the claimant has a “severe medically determinable physical or mental 6 impairment” or combination of impairments that has lasted for more than 12 months; (3) 7 whether the impairment “meets or equals” one of the listings in the regulations; (4) whether, 8 given the claimant’s “residual functional capacity,” (“RFC”) the claimant can still do her “past 9 relevant work”; and (5) whether the claimant “can make an adjustment to other work.” Molina v. 10 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation on other grounds; see 11 also 20 C.F.R. § 416.920(a). 12 DISCUSSION 13 Because the ALJ found Plaintiff disabled as of June 1, 2018, the sole issue is whether the 14 ALJ erred in not finding that she was disabled prior to that date, and in particular, as of her 15 alleged disability onset date of April 30, 2010. 16 I. The ALJ’s Determination that Plaintiff Had No Severe Mental Impairments 17 Plaintiff first challenges the ALJ’s step two determination that she did not suffer a severe 18 mental impairment. An impairment is considered severe if it “significantly limits the claimant’s 19 physical or mental ability to do basic work activities.” Ford v. Saul, 950 F.3d 1141, 1148 (9th. 20 Cir. 2020) (internal quotations and citations omitted). 21 The plaintiff has the burden to demonstrate the existence of a medically determinable 22 impairment through medical evidence. Bowen v. Yuckert, 482 U.S. 137, 146 (1987); see also 20 23 C.F.R. § 404.1508 (providing that claimant must establish existence of medically determinable 24 impairment from “medically acceptable clinical and laboratory diagnostic techniques”). The 25 Ninth Circuit has recognized, however, that the step-two inquiry is a “de minimis screening 26 device used to dispose of groundless claims.” Edlund v. Massanari, 253 F.3d 1152, 1158 (9th. 27 Cir. 2001) (internal quotation marks and citation omitted). Indeed, the ALJ can find that an 1 slight abnormality than has no more than a minimal effect on an individual’s ability to work.” 2 Smolen, 80 F.3d at 1290. (internal quotation marks and citations omitted.) On review, this 3 Court’s duty is to determine “whether the ALJ had substantial evidence to find that the medical 4 evidence clearly established that” Plaintiff did not have a severe mental impairment prior to the 5 June 1, 2018 onset date. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 6 The ALJ identified four reasons why the record evidence did not support a finding of a 7 severe mental impairment for a 12-month period prior to June 1, 2018: (1) Plaintiff’s “limited 8 and sporadic mental health treatment prior to the established disability onset date;” (2) Plaintiff’s 9 ability to carry on activities of daily living; (3) Plaintiff’s own testimony that she stopped 10 working due to physical, not mental impairments; and (4) Plaintiff’s long history of 11 polysubstance abuse. (AR 26-27.) The Court concludes that, while the first reason, standing 12 alone, does not constitute substantial evidence, the final three reasons are sufficient to establish 13 that Plaintiff’s mental impairments prior to June 1, 2018 were not sufficiently severe at step two. 14 Further, Plaintiff’s arguments regarding errors in weighing the medical evidence do not 15 undermine the non-severity finding. 16 A. Plaintiff’s “Limited and Sporadic” Mental Health Treatment Prior to June 2018 17 First, the ALJ found that Plaintiff’s mental impairments were non-severe because “the 18 record shows limited and sporadic mental health treatment prior to the established disability 19 onset date,” with no significant psychiatric care or treatment until after the alleged disability 20 onset. (AR 26 (emphasis added).) This lack of mental health treatment, standing alone, does not 21 constitute substantial evidence. A plaintiff’s lack of consistent mental health treatment cannot 22 form the basis for an ALJ’s finding that a mental impairment is not severe “both because mental 23 illness is notoriously underreported and because it is a questionable practice to chastise one with 24 a mental impairment for the exercise of poor judgment in seeking rehabilitation.” See 25 Regennitter v. Commissioner of Soc. Sec., 166 F.3d 1294, 1299-1300 (9th. Cir. 1999). 26 Further, a lack of treatment should not be used to reject a claimant’s allegations of 27 disability “when the record establishes that the claimant could not afford it.” Id. at 1297. 1 her income has been limited to Cal Works and food stamps. (AR 55.) Given Plaintiff’s history, 2 the ALJ erred in holding her failure to obtain treatment for her mental health issues against her. 3 See Gamble v. Chater, 68 F.3d 319, 322 (9th Cir. 1995) (“It flies in the face of the patent 4 purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain 5 medical treatment that may help him.”). 6 B. Plaintiff’s Ability to Carry on Activities of Daily Living 7 Second, the ALJ found that Plaintiff’s mental impairments were non-severe prior to June 8 2018 because of her ability to carry on activities of daily living. (AR 26.) The ALJ cited to 9 evaluations in the record that observed Plaintiff’s “cooperative behavior and good grooming,” 10 her ability to “get along with others, count change, handle a savings account, follow instructions 11 well, and her activities of daily living,” to support the finding that Plaintiff’s alleged mental 12 impairments were non-severe. (AR 28-29.) 13 Plaintiff argues that there are “remarkable clinical findings and limitations in daily living 14 that the ALJ ignored.” (Dkt. No. 18 at 6.) However, the evidence upon which Plaintiff relies— 15 the examinations by Ms. Srivastava and Ms. Moses—do not bolster Plaintiff’s contention that 16 her mental impairments were severe before June 1, 2018 because the examinations occurred a 17 month later, in July 2018. Moreover, Plaintiff has not identified any additional evidence which 18 supports her argument that there are remarkable clinical findings that the ALJ ignored because, 19 to the extent that she relies on Dr. Snyder’s 2014 evaluation, Dr. Snyder actually concluded that 20 Plaintiff’s cognition appeared “grossly intact,” her “presentation appears primarily medical in 21 nature but she endorsed a mild amount of depression.” (AR 773.) 22 C. Plaintiff’s Testimony That She Stopped Working Due to Physical Limitations 23 Third, the ALJ found that Plaintiff’s mental impairments were non-severe because of her 24 own testimony that she stopped working due to physical, not mental limitations. (AR 26.) The 25 ALJ also noted that she “was able to work steadily at substantial gainful activity levels for years 26 until the alleged onset of disability” on April 30, 2010. (AR 26 (citing AR 448).) Plaintiff insists 27 that this finding was in error because there is “ample evidence that her mental ability to do basic 1 work was 2010, and that she had significantly decreased earnings compared to the prior seven 2 years. (Id. at 5 (citing AR 438-444, 477).) This evidence, however, does not contradict the 3 ALJ’s finding that she stopped working due to physical, not mental limitations. To the extent 4 that Plaintiff identifies her history of trauma and testimony regarding depression and anxiety, 5 this too fails to counter the ALJ’s finding which was based on Plaintiff’s own testimony that she 6 stopped work based on her physical impairments. (AR 58-59.) Accordingly, Plaintiff has failed 7 to show that the ALJ’s finding that she stopped work due to her physical rather than mental 8 impairments is not supported by substantial evidence. 9 D. Plaintiff’s Polysubstance Abuse 10 Finally, the ALJ determined that Plaintiff’s mental impairments were non-severe because 11 of her “long history of polysubstance abuse, including heroin, cocaine and methamphetamine.” 12 (AR 26.) He stated that, “although [Plaintiff’s] substance abuse likely exacerbated her 13 conditions, the record does not support a finding of severe mental impairment for any twelve- 14 month period, with or without substance abuse.” (Id.) 15 If a claimant is disabled with medical evidence of polysubstance abuse, the ALJ must 16 assess whether claimant’s addiction is a “contributing factor material to the determination of 17 disability.” 20 C.F.R. § 404.1535. The issues the ALJ must assess are: (1) “whether [the ALJ] 18 would still find [claimant] disabled if [claimant]” ceased drug use; and (2) “which of 19 [claimant’s] current physical and mental limitations, upon which [the ALJ] based [their] current 20 disability determination, would remain if [claimant] stopped using drugs . . . and then determine 21 whether any or all of [claimant’s] remaining limitations would be disabling.” Id. If the ALJ 22 finds that the remaining limitations would not be disabling, then the ALJ finds that claimant’s 23 polysubstance abuse is a “contributing factor material to the determination of disability.” Id. 24 (emphasis added.) However, if the ALJ finds that the remaining limitations are disabling, 25 claimant is disabled independently of their polysubstance addiction and the ALJ will find that 26 that polysubstance abuse is not a “contributing factor material to the determination of disability.” 27 Id. (emphasis added.) 1 contributing factor to her disability. Given Plaintiff’s failure to present evidence that her non- 2 substance abuse-related mental impairments would “remain during periods when she stopped 3 using drugs or alcohol,” Plaintiff has not shown that the ALJ’s erred in relying on her 4 polysubstance abuse. See Ball v. Massanari, 254 F.3d 817, 821 (9th Cir. 2001) (internal 5 quotations and citations omitted). 6 E. Plaintiff’s Other Argument of Error 7 Plaintiff insists that the ALJ erred in weighing the medical evidence supporting her 8 claimed mental impairments. In particular, Plaintiff argues that the ALJ erred in giving more 9 weight to the opinions of examining psychological consultants Drs. Ying and Brode than 10 treating therapists Ms. Srivastava and Ms. Moses because, “as a general rule, more weight 11 should be given to the opinions of treating sources.” (Dkt. No. 14 at 10 (citing Winans v. Bowen, 12 853 F.2d 643, 647 (9th. Cir. 1987); 20 C.F.R. § 416.927(d)(2)).) Plaintiff also argues that the 13 ALJ should have given more weight to Dr. Wiebe’s evaluation than to Drs. Ying’s and Brode’s 14 because it was consistent with Ms. Srivastava’s and Ms. Moses’ opinions. Finally, Plaintiff 15 argues that the ALJ erred by failing to address Plaintiff’s treatment records by treating therapist 16 Jennifer Spevak (LCSW) from August 2017 until October 2017, who diagnosed her with 17 unspecified depressive disorder, unspecified anxiety disorder, and stressor-related disorder. (Dkt. 18 No. 14 at 9 (citing AR 973).) 19 Plaintiff’s challenge to the ALJ’s weighing of the medical evidence regarding her mental 20 impairments is unavailing because her arguments relate to opinions which either post-date or are 21 near the ALJ’s finding of disability—opinions which do not address the question of whether 22 Plaintiff’s mental impairments were disabling for the twelve months prior to June 2018. See 20 23 C.F.R. §§ 404.1505, 1509 (stating that to meet definition of disability, claimant must have a 24 severe impairment preventing work; impairment must have lasted or be expected to last at least 25 twelve months). For example, while Ms. Srivastava and Ms. Moses treated Plaintiff in March 26 2018, prior to the ALJ’s June 2018 onset of disability finding, their treatment began three 27 months prior to the disability onset date. Similarly, although Ms. Spevak’s August 2017 1 diagnosis of unspecified depressive disorder and unspecified anxiety disorder, this treatment 2 record is ten months prior to Plaintiff’s disability onset date. (AR 972-76.) Even if this were not 3 the case, Plaintiff concedes that Ms. Spevak’s treatment notes do not constitute medical opinion 4 evidence. (Dkt. No. 18 at 7.) 5 In sum, none of Plaintiffs’ arguments regarding the weighing of the medical evidence 6 regarding her mental impairment contradict the ALJ’s finding that her mental impairments were 7 not severe prior to June 2018. 8 *** 9 Accordingly, the ALJ’s finding that Plaintiff’s mental impairments were not severe prior 10 to the disability onset date of June 2018 is supported by substantial evidence. 11 II. ALJ’s Determination That Plaintiff Did Not Meet a Listing 12 At step three of the evaluation process, the ALJ must evaluate the claimant’s 13 impairments to determine whether they meet or medically equal any of the impairments listed in 14 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. 404.1520(d); Tackett, 180 F.3d at 15 1098. “If a claimant has an impairment or combination of impairments that meets or equals a 16 condition outlined in the ‘Listing of Impairments,’ then the claimant is presumed disabled at step 17 three, and the ALJ need not make any specific findings as to his or her ability to perform past 18 relevant work or any other jobs.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) (citing 19 C.F.R. § 404.1520(d)). “An ALJ must evaluate the relevant evidence before concluding that a 20 claimant’s impairments do not meet or equal a listed impairment. A boiler plate finding is 21 insufficient to support a conclusion that a claimant’s impairment does not do so.” Lewis, 236 22 F.3d at 512. Nonetheless, the plaintiff bears the burden of proving that he satisfied the listing. 23 Burch v. Barnhart, 400 F.3d 676, 683 (9th. Cir. 2005). 24 Plaintiff contends that the ALJ erred in finding that neither her mental or physical 25 impairments met or equaled a listing. Given the Court’s conclusion above that the ALJ did not 26 error with respect to his determination that Plaintiff’s mental impairments were not severe, the 27 Court only addresses Plaintiff’s arguments regarding her physical impairments. 1 A. Plaintiff’s Physical Impairments 2 Plaintiff challenges the ALJ’s determination that Plaintiff failed to “establish a [physical] 3 impairment that is accompanied by signs reflective of Listing-level severity.” (AR 29.) The ALJ 4 found that Plaintiff did not meet the requirements of Section 1.02 (major dysfunction of a joint 5 due to any cause) because her physical examinations “have not established the required gross 6 anatomical deformity, and clinical imaging does not indicate the requisite joint space narrowing, 7 bony destruction or anklyoses.” (AR 30 (citing AR 695, 703, 777, 864, 1098-99).) He noted that 8 the record “does not establish ineffective ambulation prior to the established onset of disability,” 9 and that Plaintiff acknowledged that “she did not begin using her walker until approximately six 10 months before the hearing.” (AR 30 (citing AR 776).) The ALJ also found that she did not 11 meeting Listing 1.04 (disorders of the spine) because there was no evidence of “nerve root 12 compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication.” 13 (AR 30.) The ALJ also considered whether Plaintiff’s obesity, which while not its own listing, 14 in combination with other impairments was of Listing level severity and concluded that it was 15 not. (Id.) The ALJ did the same with respect to Plaintiff’s alleged carpal tunnel syndrome. (Id.) 16 Plaintiff contends that the ALJ erred in failing to consider whether the combined effects 17 of her spine, hip, and left leg dysfunction would equal a listing for the time period prior to the 18 disability onset date. In particular, Plaintiff insists that she “established symptoms, signs, and 19 laboratory findings ‘at least equal in severity and duration’ of Listings 1.02, 1.03, and 1.08” 20 prior to June 2018. (Dkt. No. 14 at 14 (citing AR 695).) The Commissioner does not respond 21 to Plaintiff’s equivalence argument and instead argues that the evidence does not support listing 22 1.08 because Plaintiff did not have surgical intervention during the claimed period of disability 23 and does not met Listing 1.02 and 1.03 because she has not shown the inability to ambulate 24 effectively. 25 If a claimant’s impairment is not listed, the ALJ can find medical equivalence if “the 26 medical findings are at least equal in severity and duration to the listed findings.” 20 C.F.R. § 27 404.1526. The ALJ must compare the “‘symptoms, signs and laboratory findings’ about the 1 with the listed impairment.’” Santiago v. Barnhart, 278 F. Supp. 2 1049, 1057 (N.D. Cal. 2003) 2 (citing 20 C.F.R.§ 404.1526). The combined effect of all the claimant’s impairments must be 3 considered, regardless of “‘whether any such impairment if considered separately’ would be 4 sufficiently severe.” Santiago, 278 F. Supp. 2d at 1057 (citing 42 U.S.C. § 423(d)(2)(c)). 5 Though it is the claimant’s burden to prove that she equals all the requirements of a listed 6 impairment, see Kennedy v. Colvin, 738 F.3d 1172,1174 (9th. Cir. 2013), if a claimant has a 7 combination of impairments that does not meet a listing, the ALJ must determine whether the 8 combination of impairments is medically equivalent to the listing. 20 C.F.R. § 404.1526. To 9 trigger the equivalence determination, the claimant must (1) “produce objective medical 10 evidence of an impairment or impairments;” and (2) “show that the impairment or combination 11 of impairments could reasonably be expected to (not that it did in fact) produce some degree of 12 symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (internal citations and 13 quotations omitted); see also Burch, 400 F.3d at 683 (“An ALJ is not required to discuss the 14 combined effects of a claimant’s impairments or compare them to any listing in an equivalency 15 determination, unless the claimant presents evidence [to] establish equivalence.”). 16 Here, Plaintiff has carried her burden of offering evidence that predates her June 1, 2018 17 disability onset date which supports a reasonable inference of equivalence. In particular, 18 Plaintiff’s August 5, 2010 cervical spine X-ray shows that “flattening of the cervical lordosis, 19 ‘severely decreased’” with “. . . multiple subluxations detected throughout the spinal column 20 along with myospasm in cervical and lumbar region.” (AR 663.) A year later, in June 2011, she 21 was noted to have a “history of chronic neck, shoulder, left leg and lower back pain,” and her 22 “left leg had a length discrepancy.” (AR 694.) In her objective exam, the doctors noted that:

23 She does have sacroiliac joint restriction. Her left side has no motion and right side has little motion, but both are very restricted. 24 She has tight lumbar spine paraspinal muscles. She has thoracolumbar junction restricted to the left rotation and elevated 25 left first rib, and her C4-C6 are in neutral position, side bend rotated to the right. [Additionally,] she has (1)Chronic left leg pain 26 secondary to leg length discrepancy[;] (2) Chronic lower back pain secondary to left hip surgery [;] and (3) Left shoulder and left upper 27 extremity pain is likely secondary to thoracic outlet syndrome. 1 Her SI joint is restricted bilaterally, left greater than right. Her left side range of motion is restricted by hardware. She has a tight L- 2 spine paraspinal muscles. She has a tight and shallow left thoracic outlet. Restricted cervicothoracic junction, TI is flexed side bend 3 rotated to the left. She has tight C-spine paraspinals and suboccipital muscles. 4 (AR 693.) In a December 2014 exam, Dr. Gray diagnosed her with “slipped capital femoral 5 epiphysis, left hip.” (AR 782.) Almost a year later, Dr. Williams also noted that she is “still 6 positive for joint pain” with a pain score of 8/10. (AR 812.) 7 Where, as here, “the claimant presents evidence in an effort to establish equivalence,” the 8 ALJ is “required to discuss the combined effects of a claimant’s impairments or compare them 9 to any listing in an equivalency determination.” Burch, 400 F.3d at 683. The Commissioner does 10 not dispute that the ALJ did not do so here. While the ALJ discussed equivalence in the context 11 of Plaintiff’s obesity, his finding that Plaintiff’s “obesity either alone or in the context of her 12 other impairments, was not at Listing level severity” based on her ability to ambulate effectively, 13 is not supported by the evidence. (AR 30.) Namely, the ALJ relied upon Dr. Pon’s October 14 2014 finding that Plaintiff had a stable gait without the use of an assistive device, but the ALJ 15 ignored the following sentence from Dr. Pon’s findings: “however, the claimant stated that she 16 has fallen without her cane, so she used a cane for support, so by history a cane is beneficial.” 17 (AR 778.) An ALJ errs when he considers the claimant’s evidence selectively and ignores 18 evidence that contradicts his findings. See Fanlo v. Berryhill, No. 17-cv-01617, 2018 WL 19 1536732, at *10 (S.D. Cal. Mar. 28, 2018) (stating that the “ALJ cherry-picked [the claimant’s] 20 progress notes ... to support her conclusion that [the claimant] was stable and improving, but the 21 ALJ failed to acknowledge progress notes from the same time period that directly contradicted 22 her conclusion,” and explaining that ALJs are “not permitted to ‘cherry-pick’ only the records 23 that support [their] position”); Scrogham v. Colvin, 765 F.3d 685, 698-99 (7th Cir. 2014) 24 (explaining that an ALJ errs by “consider[ing] [record] evidence ... selectively [and] ignoring 25 evidence that contradict[s] her findings.”). 26 In Cargill v. Berryhill, 762 F. App’x 407, 409 (9th Cir. 2019), the Ninth Circuit rejected 27 the ALJ’s boilerplate finding that the plaintiff had not demonstrated the “inability to ambulate 1 effectively.” The plaintiff there used a single point cane for a right ankle injury and the ALJ 2 concluded without analysis that he did not meet Listings 1.02 and 1.03 because of his ability to 3 ambulate effectively. Id. The Ninth Circuit noted that while one example of “the inability to 4 ambulate effectively is the ‘inability to walk without the use of a walker, two crutches or two 5 canes,’” the “use of one cane could not independently disqualify [the claimant] from meeting a 6 listing.” Id. at 409 (quoting Revised Medical Criteria for Determination of Disability, 7 Musculoskeletal System and Related Criteria, 66 Fed. Reg. 58,010, 58,013 (Nov. 19, 2001) 8 (“[I]f someone who uses one cane or crutch is otherwise unable to effectively ambulate, the 9 impairment(s) might still meet or equal a listing”)). So too here. The ALJ failed to consider 10 whether Plaintiff’s use of cane prior to her walker in June 2018, demonstrated an inability to 11 ambulate effectively. 12 Accordingly, the ALJ erred with respect to his consideration of the medical evidence and 13 whether it met or equaled a listing when considered singly or in combination. See Laborin v. 14 Berryhill, 692 Fed. Appx. 959, 962 (9th Cir. 2017) (“A bare statement that [Plaintiff] does not 15 meet a listing, without appropriate evaluation or discussion of the medical evidence, is 16 insufficient to conclude that [Plaintiff’s] impairment does not meet or medically equal a listed 17 condition.”). 18 III. Remand 19 When courts reverse an ALJ’s decision, “the proper course, except in rare circumstances, 20 is to remand to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 21 F.3d 587, 595 (9th Cir. 2004). A remand for an award of benefits is proper, however, “where (1) 22 the record has been fully developed and further administrative proceedings would serve no 23 useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 24 evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited 25 evidence were credited as true, the ALJ would be required to find the claimant disabled on 26 remand.” Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017) (internal quotation marks and 27 citation omitted). 1 The proper remedy here is remand for further proceedings. The record must be more 2 || fully developed regarding whether Plaintiff's physical impairments medically equaled Listings 3 1.02, 1.03, and 1.08 prior to the established June 1, 2018 onset of her disability. In particular, 4 || the ALJ shall consider whether Plaintiff's medical evidence sufficiently establishes symptoms, 5 signs, and laboratory findings that are at least equal in severity and duration, and to conduct a 6 || medical equivalence analysis based on the medical evidence between her alleged onset of 7 || disability (April 30, 2010) and the date the ALJ determined she was disabled (June 1, 2018.) 8 CONCLUSION 9 For the reasons set forth above, the Court GRANTS IN PART Plaintiff’s motion, and 10 || GRANTS IN PART Defendant’s motion. The Court REMANDS for further proceedings 11 consistent with the Order. 12 This Order disposes of Docket Nos. 14 and 17. 13 IT IS SO ORDERED. || Dated: September 21, 2021 . ACQUELINE SCOTT CORLEY = 16 United States Magistrate Judge

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