Smith v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: May 28, 2020
• Docket: 2:19-cv-01586
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Alicia Smith, No. CV-19-01586-PHX-DMF

10 Plaintiff,

11 v. ORDER

12 Commissioner of Social Security Administration,

13 Defendant.

14 15 At issue is Defendant (“Commissioner”)’s decision to deny Plaintiff Alicia Smith’s 16 (“Claimant”)’s application for Title II Disability Insurance Benefits under the Social 17 Security Act (“Act”). Claimant filed a Complaint seeking judicial review of the decision. 18 (Doc. 1.)1 The Court now considers Claimant’s Opening Brief (Doc. 19), the 19 Commissioner’s Response (Doc. 21), Claimant’s Reply (Doc. 22), and the Administrative 20 Record (Doc. 15). For the following reasons, the Court will order the final decision of the 21 Commissioner to be vacated and will remand this matter to the Commissioner for further 22 proceedings consistent with this Order. 23 I. BACKGROUND 24 A. Application and Social Security Administration review 25 Claimant was 52 when she filed an application on October 20, 2014, for Title II 26 Disability Insurance Benefits and alleged disability as of October 9, 2009. (Doc. 15-3 at

27 1 Citation to the record indicates documents as displayed in the official Court electronic 28 document filing system maintained by the District of Arizona under Case No. CV-19- 01586-PHX-DMF. 1 26, Doc. 15-6 at 18) Claimant had filed a prior Title II application on May 19, 2011, which 2 was denied by an administrative law judge (“ALJ”) on January 3, 2013. (Doc. 15-3 at 26) 3 Claimant was found to be not disabled on initial state agency review in September 2015. 4 (Doc. 15-4 at 67) On reconsideration, the state agency reviewers determined there had not 5 been changed circumstances in Claimant’s case after she received an unfavorable decision 6 in 2013 in her prior application and concluded that Claimant was “still able to perform 7 [her] past work as a machine operator.” (Id. at 91) At her hearing before the ALJ on 8 September 15, 2017, Claimant amended the alleged onset date of disability to April 9, 9 2015, based on a consultative examination report. (Doc. 15-3 at 80-81) The ALJ issued a 10 decision finding Claimant “not disabled.” (Id. at 26-43) The Appeals Council upheld the 11 decision in a notice dated January 7, 2019, and the decision became final (Id. at 2-4). 12 Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). 13 B. Relevant medical treatment and imaging 14 Claimant must establish disability between her alleged onset date of April 9, 15 2015, and her date last insured of June 30, 2015. Flaten v. Sec. of Health & Human 16 Servs., 44 F.3d 1453, 1461 n.4 (9th Cir. 1995). Claimant addresses the portion of her 17 medical records with dates approaching her amended alleged onset of disability date of 18 April 9, 2015. (Doc. 19 at 6) She appropriately does not address medical records date 19 prior to January 30, 2014, or after October 20, 2015. (Doc. 19 at 6-12) 20 1. Eric Feldman, M.D., The CORE Institute 21 In January 2014, Claimant was seen by Dr. Feldman for neck and lower back pain 22 that Claimant rated as eight out of ten. (Doc. 15-12 at 101-102) She reported her back 23 pain was aggravated by bending, leaning back, sitting, standing, walking and other physical 24 activity, lying flat, lying with bent knees and hips, and getting out of a bed or a chair. (Id. 25 at 101) She stated her neck pain was worsened by moving her head or using her arms 26 above her head. (Id.) Dr. Feldman prescribed Claimant Oxycodone, Gabapentin and 27 Cymbalta for pain. (Id. at 101) The doctor stated that Claimant got “relief from her pain 28 medications and denied any side effects. (Id. at 105) Claimant demonstrated limited range 1 of motion in her neck and lumbar spine due to pain, but she also exhibited normal strength. 2 (Id. at 103-104) Dr. Feldman reported Claimant had obtained “excellent relief” from 3 steroid injections to her neck and low back for two to three months such that she was “able 4 to function much better with significant improvement in her overall pain.” (Id. at 105) 5 Stating that the effects of the injections had “worn off,” the doctor ordered additional 6 injections. (Id.) Claimant received injections to her sacroiliac on February 7, 2014. (Id. 7 at 107) 8 In April 2014, Dr. Feldman reported Claimant’s self-reported limitations due to pain 9 as including sitting and standing tolerance of only 5 to 10 minutes, leg fatigue and pain 10 while walking, a walking distance prior to pain onset of just one block, and that nothing 11 relieved Claimant’s pain while walking. (Id. at 110) The doctor noted that Claimant had 12 obtained “very good relief” from her injections and wanted to repeat them. (Id. at 113) 13 Claimant reported neck and low back pain rated at 8 out of 10. (Id. at 109) The doctor 14 performed the injection procedures on May 16, 2014. (Id. at 115) 15 In September 2014, Claimant’s neck and lower back pain remained unchanged. Dr. 16 Feldman noted Claimant’s substantial pain relief following her injections in May 2014 and 17 ordered additional injections. (Id. at 120) The doctor stated that Claimant complained of 18 “widespread myofascial pain.” (Id.) Claimant underwent sacroiliac injections on 19 November 6, 2014. (Id. at 122-123) 20 On a follow up appointment in March 2015, Claimant reported low back pain rated 21 at 6 out of 10 but radiating leg pain rated at 8 out of 10. (Id. at 129) Her lumbar spine 22 range of motion was within functional limits but painful at end range of motion. (Id. at 23 131) Dr. Feldman ordered additional sacroiliac injections and noted that Claimant reported 24 pain and paresthesia in her hands consistent with carpal tunnel syndrome. (Id. at 132) The 25 doctor further documented Claimant’s reports of neck pain accompanied by radicular left 26 greater than right arm pain and paresthesias. (Id.) Dr. Feldman performed bilateral 27 sacroiliac joint injections on Claimant on April 21, 2015. (Id. at 137) 28 1 Claimant was seen by Dr. Damon Adamany of The Core Institute on April 28, 2015, 2 for continuing pain in her wrist and hand. (Id. at 139-142) Claimant complained of 3 numbness and tingling and weakness in her hands and said her hand felt clumsy. (Id. at 4 139) Dr. Adamany diagnosed bilateral carpal tunnel syndrome and mentioned that she 5 may have neuropathy. (Id. at 141) The doctor recommended Claimant wear a Velcro wrist 6 splint for a month and return for a follow up examination. (Id.) 7 In May 2015, Claimant reported low back and leg pain severity of 7 out of 10. (Id. 8 at 143) In August 2015, Claimant reported significant relief from her previous sacroiliac 9 injections and asked that the procedure be again performed. (Id. at 151) Dr. Feldman 10 stated that Claimant had gone to the emergency room with chest pain and left arm pain 11 with paresthesia. (Id.) She was advised at the hospital that her symptoms “were most 12 likely due to fibromyalgia.” (Id.) Dr. Feldman stated that he felt “the majority of 13 [Claimant’s] symptoms are related to fibromyalgia.” (Id.) The doctor prescribed 14 Cymbalta. (Id. at 149, 152) 15 2. Anjali Iyengar, M.D. 16 Claimant was treated by hematologist Dr. Iyengar for iron and vitamin B12 17 deficiencies. (Doc. 15-9 at 129) In January 2014, Claimant reported feeling better after 18 receiving intravenous iron. (Id. at 129) Dr. Iyengar recorded that Claimant’s 19 musculoskeletal system was “abnormal” due to lower back, leg, and arm pain for which 20 Claimant had been prescribed oxycodone. (Id.) Dr. Iyengar assessed Claimant’s 21 “performance status” as permitting “no physically strenuous activity,” but that she was 22 “ambulatory and able to carry out light or sedentary work (e.g., office work, light 23 housework).” (Id. at 130) 24 Dr. Iyengar referred Claimant for an ultrasound scan of her left leg in June 2014 that 25 revealed a blood clot persisting in her left peroneal vein. (Id. at 118) The doctor 26 recommended Claimant continue on an anticoagulant for an additional three months. (Id. 27 at 117) In January 2015, Dr. Iyengar reported that as of September 2014, the clot had 28 resolved and the anticoagulant treatment was discontinued. (Id. at 103) 1 3. Integrated Medical Services, Michael R. Keller, M.D., Kamel Sadek, M.D., Thomas Martin, PA-C, Michael Weng, M.D. 2 In February 2014, one of Claimant’s primary care providers, Michael Keller, M.D., 3 treated her for cervical radiculopathy, headache, low back pain, and lumbar radiculopathy. 4 (Doc. 15-10 at 72-75) In March 2014, Thomas Martin, PA-C, reported that Claimant had 5 neck, shoulder, and arm pain, but no upper extremity numbness, stiffness, or decreased 6 range of motion. (Id. at 67-71) He also noted that Claimant had deep vein thrombosis in 7 her leg. (Id. at 7) In April 2014, Claimant was treated for iron deficiency, anemia, and 8 vitamin B-12 deficiency. (Id. at 54-58) Dr. Keller reported in June 2014 that Claimant 9 had suffered a period of moderate depression. (Id. at 45-48) In July 2014, PA-C Martin 10 prescribed a medication to treat chronic fatigue syndrome. (Id. at 38) Dr. Keller stopped 11 Claimant’s blood thinner in September 2014 and added a prescription to treat Claimant’s 12 chronic fatigue. (Id. at 26-29) In December 2014, Dr. Keller indicated that Claimant 13 reported constant, severe low back pain that was uncontrolled and had “no obvious cause.” 14 (Id. at 21) Dr. Keller reported Claimant said the pain was better with rest and worse with 15 exercise or activity. (Id.) He also noted Claimant’s complaints of pain radiating down 16 both legs, with weakness and numbness in both legs. (Id.) 17 In January 2015, Kamel Sadek, M.D., saw Claimant for complaints of moderate 18 insomnia and moderate depression with no specific cause or association. (Id. at 16-17) In 19 February 2015, Claimant complained of arm, leg and knee pain. (Id. at 11-15) Claimant 20 described her leg pain as associated with swelling, stiffness, difficulty bearing weight, calf 21 tenderness, numbness, tingling, hip and thigh pain, and difficulty walking. (Id. at 11) 22 Claimant stated she was stable on medication. (Id.) It was noted that Claimant had been 23 “evaluated for a spinal stimulator, but does not want to follow that course at this time.” 24 (Id.) 25 In March 2015, Dr. Sadek reported that Claimant’s back pain was constant, 26 controlled, moderate in severity, and made better with rest and worse with exercise or 27 activity. (Id. at 5) Dr. Sadek described Claimant’s neck condition as causing pain, 28 1 decreased range of motion, muscle spasms, migraine headaches, and other limitations 2 affecting her “general activity, mood and sleep.” (Id. at 5-6) Claimant reported “good 3 compliance with treatment, good tolerance of treatment and good symptom control.” (Id. 4 at 6) It was documented that Claimant had no associated “shoulder pain, no arm pain, no 5 upper extremity weakness[,]” numbness, or stiffness or tingling. (Id. at 5) Dr. Sadek 6 concluded that Claimant’s neck pain was responding to treatment. (Id. at 9) 7 On April 1, 2015, Claimant presented with left knee pain. (Doc. 15-11 at 18-20) 8 Michael Weng, M.D., assessed her with a left knee medial meniscus tear and prescribed 9 ice, heat and over-the-counter pain reliever. (Id. at 20) On April 16, 2015, Dr. Sadek 10 indicated Claimant may have bilateral carpal tunnel syndrome and that the condition was 11 worsening. (Doc. 15-13 at 51) He suggested referral to a specialist. (Id.) On April 28, 12 2015, the doctor documented Claimant’s hand pain and tingling, weakness and numbness, 13 with associated weakened grasp and pain sensitivity. (Id. at 41) In May 2015, Claimant 14 was seen for continued knee pain that increased with activity. (Doc. 15-11 at 15-17) The 15 doctor assessed a medial meniscus tear and referred Claimant for a surgical consultation. 16 (Id. at 17) 17 4. Albert Klaski, M.D. 18 In April 2014, Claimant consulted with Dr. Albert Klaski about headaches lasting 19 two to three hours daily. (Doc. 15-9 at 36-39) Claimant complained of awakening several 20 times each night and being very tired with daytime significant fatigue such that she could 21 nap at any time. (Id. at 36) Dr. Klaski reported Claimant demonstrated normal gait and 22 balance, and normal muscle tone. (Id. at 38) Dr. Klaski assessed Claimant with analgesic 23 overuse headache, migraine headache, occipital neuralgia, and sleep apnea. (Id.) 24 Claimant underwent a sleep study on May 6, 2014. (Id. at 29-30) She met again 25 with Dr. Klaski later in May 2014. Dr. Klaski reported that Claimant’s sleep study was 26 normal, and that a CT scan of her brain was also normal. (Id. at 26) The doctor prescribed 27 a new prescription medication regime and recommended “bilateral greater occipital nerve 28 blocks for improved headache control.” (Id. at 28) 1 5. Spooner Physical Therapy 2 Claimant was assessed for physical therapy on June 3, 2015. (Doc. 15-11 at 32-34) 3 Claimant reported she “was supposed to have a stimulator put in her back but she didn’t 4 want to do this. She has done injections, [transcutaneous electrical stimulation unit], 5 patches, but has difficulty taking medicine.” (Id. at 32) The therapist noted Claimant was 6 “restricted in all planes of motion in the [cervical]-spine by 75% and quality of motion is 7 very poor[,]” and also limited in lumbar spine motion as well as elevation in her shoulders. 8 (Id. at 33) The therapist also documented Claimant’s upper and lower extremity strength, 9 “with poor quality of contraction.” (Id. at 33) He noted Claimant had an antalgic gait. (Id. 10 at 31) After some therapy sessions, on June 19, 2015, the physical therapist reported that 11 Claimant said she liked the therapy sessions because they relaxed her, and that Claimant 12 was “able to perform exercises appropriately and without any increase in symptoms.” (Id. 13 at 27) At the end of June 2015, Claimant reported “doing a little bit better at this point[.]” 14 (Id. at 25) 15 6. Imaging and testing 16 Claimant underwent a duplex scan of her extremity veins in June 2014. (Doc. 15-9 17 at 118) Thrombus was observed in her left peroneal vein. (Id.) 18 On April 6, 2015, Dr. Feldman conducted an electrodiagnostic evaluation of 19 Claimant’s bilateral hand pain and paresthesias. (Doc. 15-12 at 134-136) The doctor 20 recorded impressions of “electrodiagnostic evidence of a mild, primarily sensory, median 21 neuropathy at the right wrist consistent with carpal tunnel syndrome. There is no 22 denervation present.” (Id. at 134) He also recorded no evidence of “a cervical 23 radiculopathy, brachial plexopathy or a peripheral polyneuropathy.” (Id.) 24 On April 1, 2015, Claimant underwent x-rays of her left knee. (Doc. 15-13 at 71) 25 The findings indicated “[n]o acute fracture or malalignment. Joint spaces are relatively 26 preserved. No discrete focal osseous lesions. No significant joint effusion.” (Id.) The 27 impression was of “unremarkable left knee radiographs.” (Id.) 28 1 Also on April 1, 2015, Claimant had imaging done of her lumbar spine. (Doc. 15- 2 10 at 239) The doctor reviewing the imaging found “no significant subluxtions[,]” that the 3 intervertebral disc spaces “were preserved[,]” “some minimal spurring at the anterior 4 margin of the vertebral bodies[,]” and “[p]ossible minor facet arthropathy in the lower 5 lumbar spine with some sclerosis noted.” (Id.) 6 In August 2015, x-ray imaging was conducted on Claimant’s cervical spine. (Doc. 7 15-13 at 70) The findings indicated “no osseous abnormality. The alignment is normal. 8 There is no prevertebral soft tissue swelling. There is no fracture.” (Id.) The impression 9 was of an “unremarkable exam.” (Id.) 10 C. Medical source statements 11 1. Eric Feldman, M.D. 12 Dr. Feldman completed a “Residual Functional Capacity Questionnaire” regarding 13 Claimant on November 13, 2009. (Doc. 15-9 at 92-94) Dr. Feldman reported he had seen 14 Claimant every two to three months from November 2012 to the date of the questionnaire. 15 (Id. at 92) The doctor listed Claimant’s diagnoses as fibromyalgia and chronic pain 16 syndrome, and her symptoms as “chronic widespread pain, fatigue, low back pain [and] 17 paresthesias in hands and feet.” (Id.) Dr. Feldman opined that Claimant’s symptoms were 18 “constantly” severe enough to interfere with “the attention [and] concentration required to 19 perform simple work-related tasks.” (Id.) Dr. Feldman indicated that Claimant would need 20 to lie down or recline during a hypothetical 8-hour day “in excess of the typical 15-minute 21 break in the morning, the 30 to 60 minute lunch, and the typical 15-minute break in the 22 afternoon.” (Id.) The doctor stated that Claimant could not walk even a single city block 23 without rest or significant pain. (Id.) 24 Dr. Feldman estimated that if Claimant were “placed in a competitive work situation 25 on an ongoing basis” she would be limited to: (1) sitting for 15 minutes at a time; (2) 26 standing/walking for 5 to 10 minutes at a time; (3) sitting for 1 to 2 hours during and 8- 27 hour workday; and (4) standing or walking for 0 to 1 hour during an 8-hour workday. (Id.) 28 Dr. Feldman stated that Claimant would need to shift positions at will from sitting, 1 standing, or walking, and would need to take unscheduled breaks every 15 to 20 minutes 2 for 5 minutes. (Id.) The doctor opined that Claimant could occasionally lift and carry 10 3 pounds or less and never lift and carry items greater than 10 pounds. (Id. at 93) He stated 4 that Claimant was limited in performing repetitive reaching, handling or fingering and 5 could use: (1) either hand to grasp, turn, or twist objects for 10% of an 8-hour workday; 6 (2) her fingers on either hand for fine manipulation for 10% of an 8-hour workday; and (3) 7 her arms or reaching for 5% of an 8-hour workday. (Id.) Dr. Feldman determined that 8 Claimant would need to miss more than 4 days a month as a result of her impairments or 9 treatments. (Id.) The doctor concluded that Claimant was not “physically capable of 10 working an 8-hour day, 5 days a week employment on a sustained basis.” (Id.) 11 2. Michael R. Keller, M.D. 12 On December 23, 2014, Michael Keller, M.D., completed a “Mental Capacity 13 Assessment” of Claimant. (Doc. 15-9 at 97-99) Dr. Keller indicated that Claimant had 14 only “slight” limitation in understanding and memory, “slight” to no limitations in her 15 ability for sustained concentration and persistence2, no limitations in social interaction, and 16 “slight” to no limitations in adaptation. (Id.) 17 D. Examining consultative evaluations 18 1. Donald Fruchtman, D.O. 19 Donald Fruchtman, D.O., conducted a consultative examination of Claimant on 20 April 9, 2015. (Doc. 15-10 at 241-249) Dr. Fruchtman reviewed Claimant’s medical 21 records spanning the period between October 8, 2009, and April 2013. (Id. at 241-242) 22 The doctor noted that Claimant used a cane which she reported had been prescribed. (Id. 23 at 243) He observed Claimant was not comfortable sitting and moved stiffly as she moved 24 from her chair to the exam table, and needed help putting her shoes back on her feet. (Id.) 25 The doctor documented that Claimant was able to turn a doorknob, manipulate a button, 26 and pick up a coin from the desk. (Id.) Claimant was only able to walk a few steps without

27 2 Dr. Keller stated it was “unknown” how many absences Claimant might have in an 28 average month, or the extent of Claimant’s ability “to perform at a consistent pace with a standard number and length of rest periods. 1 a cane, and her gait appeared labored. (Id. at 244) She was not able to perform toe-heel 2 walking and was able to stand on her toes and on her heels only with support. (Id.) 3 Similarly, she was able to stand on her right foot and then her left foot by holding on to the 4 doctor. (Id.) She commented that she felt like she was going to fall all the time. (Id.) Dr. 5 Fruchtman indicated he did not think a cane was medically necessary. (Id.) 6 Dr. Fruchtman documented a very restricted range of motion in Claimant’s neck 7 and lower back. (Id. at 244-245) Her hip range of motion also was significantly limited. 8 (Id. at 245) Claimant exhibited pain in her knees. (Id.) Claimant demonstrated normal 9 range of motion in her ankles, elbows, wrists, and fingers, although she indicated symptoms 10 of carpal tunnel syndrome in her wrists. (Id.) Her shoulder range of motion was 11 significantly restricted. (Id.) 12 Dr. Fruchtman noted that Claimant demonstrated 18 out of 18 trigger points for 13 fibromyalgia and “a typical ‘do not touch me syndrome’” making it difficult to assess 14 ranges of motion. (Id. at 245) Claimant exhibited full motor strength in her upper and 15 lower extremities and her grip strength. (Id. at 246) The doctor noted that when checking 16 whether Claimant could feel a light touch, in certain areas Claimant said she could not feel 17 the touch, but when he later touched her in those areas, she did feel it. (Id.) Dr. Fruchtman 18 stated he doubted that Claimant’s symptoms were due to degenerative disc disease or 19 degenerative joint disease. (Id.) Instead, he concluded that her major diagnosis was 20 fibromyalgia accompanied by a “do not touch me syndrome” possibly caused by “a type 21 of conversion reaction.” (Id.) 22 Dr. Fruchtman opined that Claimant could frequently lift and/or carry 10 pounds 23 and stand and/or walk for at least 4 hours in an 8-hour workday, but not more than an hour 24 or two at a time. (Id. at 247) The doctor stated that Claimant had no limitations in sitting 25 and concluded she was capable of sitting 6 to 8 hours in an eight-hour workday. (Id. at 26 247-248) Dr. Fruchtman estimated that Claimant could frequently balance and use her 27 hands for handling, fingering, and feeling and occasionally climb, stoop, kneel, crouch, 28 crawl, and reach. (Id. at 248) The doctor concluded that Claimant could not work around 1 heights or moving machinery but would not be restricted from working around extremes 2 in temperature, chemicals, dust/fumes or gases, or excessive noise. (Id. at 249) 3 Dr. Fruchtman opined that because Claimant had fibromyalgia and chronic pain, 4 she was not capable “right now” of a full time position and that he would “probably restrict 5 her to a part time because of the chronicity of her problems.” (Id.) 6 2. Shaunna Sukey Haley, Psy.D. 7 On April 15, 2015, Dr. Haley conducted a psychological survey of Claimant (Doc. 8 15-11 at 2-7) and provided a mental status exam (Id. at 8-9). Dr. Haley indicated that 9 Claimant was bilingual and “speaks both Spanish and English. An interpreter was not 10 needed for the exam.” (Id. at 2) Dr. Haley observed it was an “effort” for Claimant to rise 11 from her seated position, that she “transitioned between sitting and standing,” “paced the 12 examiner’s office with her cane[,]” and reported a subjective pain rating of 8 out of 10.” 13 (Id. at 3) Claimant reported that her hobby was watching TV because she couldn’t “really 14 do anything.” (Id.) Claimant reported difficulty in high school with reading, English, and 15 math. (Id. at 4) Based on Claimant’s reports, Dr. Haley indicated that Claimant had 16 difficulties with sitting, walking, and standing and used a cane. (Id. at 6) Claimant told 17 Dr. Haley she could do light chores, depending on how she felt, and that she was not able 18 to drive, perform yard work, or take care of the house. (Id.) Claimant reported her 19 boyfriend did most of the cooking and that her sister and her boyfriend helped with the 20 laundry. (Id.) Claimant further told Dr. Haley that she would go shopping with her 21 boyfriend but just sit down and wait for him. (Id.) She indicated that she could not write 22 well in English. (Id. at 7) 23 Based on the examination of Claimant, Dr. Haley noted Claimant’s deficiencies in 24 delayed recall and that she needed reminders to take her medications. (Id. at 8) Claimant 25 was able to understand and answer simple questions. (Id.) Claimant demonstrated only 26 “minimal evidence of distractibility” and questions did not need to be repeated. (Id.) Dr. 27 Haley opined that Claimant “may be able to complete simple tasks only that do not require 28 reading, writing, or significant concentration.” (Id. at 9) Dr. Haley concluded that 1 Claimant was not capable of managing benefit payments in her own interest. (Id.) 2 E. State agency non-examining consultant assessments 3 1. Rosalia Pereyra, Psy.D. and Melvin Roberts, M.D. 4 On initial review of Claimant’s application, non-examining consultative reviewers 5 Rosalia Pereyra, Psy.D., and Melvin Roberts, M.D., provided two opinions on Claimant’s 6 limitations. In his first opinion dated August 18, 2015, Dr. Roberts assessed Claimant’s 7 medical records as of July 6, 2015. (Doc. 15-4 at 20-42) He opined that Claimant would 8 be limited to sedentary work and that she could stand and/or walk for a total of 2 hours in 9 an 8-hour workday. (Id. at 36, 41) In his subsequent opinion dated September 30, 2015, 10 Dr. Roberts reviewed Claimant’s medical records as of September 22, 2015. (Id. at 44-67) 11 Dr. Roberts altered his opinion to find that Claimant was limited to light work and that she 12 was able to stand and/or walk for a total of 6 hours in an 8-hour workday. (Id. at 62, 66) 13 Dr. Roberts further noted that Claimant’s limited range of motion was caused by 14 Claimant’s subjective complaints of pain, and that Dr. Fruchtman observed Claimant had 15 equal balance with or without her use of a cane. (Id. at 62) Regarding the finding of 18 16 out of 18 trigger points, Dr. Roberts declared there was a “paucity of abnormal physical 17 findings[,]” specifically referencing the Spooner Physical Therapy notes.3 (Id.) 18 2. Jamie Bludworth, Ph.D. and Yousef Schwartz, M.D. 19 On reconsideration, the reviewers examined records received as of September 2013. 20 (Doc. 15-4 at 69-91) The reviewers concluded that although Claimant was subject to 21 limitations in the performance of certain work activities, the limitations would not prevent 22 her from performing her past relevant work as a machine operator. (Id. at 89) Claimant 23 was again found to be not disabled. (Id. at 68, 90) 24 . . . 25 . . . 26 3 In the August 2015 opinion, the reviewers noted that the Spooner Physical Therapy 27 records indicated Claimant was able to perform exercises “as prescribed for 55 minutes 28 with no difficulty and no increase in symptoms or untoward events.” (Doc. 15-4 at 38) The records do not indicate what these exercises consisted of. 1 II. STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), this court must affirm the Commissioner’s decision to 3 adopt the ALJ’s findings if her findings are supported by substantial evidence and are free 4 from reversible error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial 5 evidence is more than a mere scintilla, but less than a preponderance.” Tidwell v. Apfel, 6 161 F.3d 599, 601 (9th Cir. 1998). “It is ‘such relevant evidence as a reasonable mind might 7 accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 8 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). 9 In determining whether substantial evidence supports the ALJ’s decision, the court 10 considers the whole record, weighing both the evidence that supports and that which 11 detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). 12 The ALJ is responsible for resolving conflicts in medical testimony, ambiguity in the 13 record, and determining credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 14 1995). If there is sufficient evidence to support the ALJ’s outcome, the Court cannot 15 substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). 16 Although the Court “must do more than merely rubberstamp the ALJ’s decision[,]” Winans 17 v. Bowen, 853 F.2d 643, 645 (9th Cir. 1988), where the evidence is susceptible to more than 18 one rational interpretation, the ALJ’s decision must be upheld. Magallanes v. Bowen, 881 19 F.2d 747, 750 (9th Cir. 1989) (citations omitted). 20 III. LEGAL STANDARDS 21 Claimant bears the burden of proving disability under the Social Security Act. 22 Tidwell v. Apfel, 161 F.3d at 601. She meets this burden if she can establish that she has a 23 physical or mental impairment that prevents her from engaging in any substantial gainful 24 activity and which is expected to result in death or to last for a continuous period of at least 25 one year. 42 U.S.C. §§ 423(d)(1) and 1382c(a)(3)(A). Claimant’s impairments must be 26 such that she is not only unable to perform her past relevant work, but she cannot, 27 considering her age, education and work experience, engage in other substantial gainful 28 work existing in the national economy. Id. at §§ 423(d)(2) and 1382c (a)(3)(B). 1 The Commissioner applies a five-step sequential process to evaluate disability. 20 2 C.F.R. §§ 404.1520 and 416.920. In the first three steps, the Commissioner determines: 3 (1) whether a claimant has engaged in substantial gainful activity since the alleged onset; 4 (2) whether she has a “severe” impairment or a combination of impairments that is 5 “severe”; and (3) whether the severity of any impairment meets or equals the severity of 6 any impairment in the Listing of Impairments (20 C.F.R. Pt. 404, Subpt. P, App. 1). Id. If 7 a claimant complies with these three steps, she will automatically be found disabled; if the 8 claimant satisfies steps one and two but not three, she must then satisfy step four. Id. 9 Before considering step four, the ALJ must assess the claimant’s residual functional 10 capacity (“RFC”), see 20 C.F.R. § 404.1520(a)(4)(iv), which is “the most [the claimant] 11 can still do despite [the claimant’s] limitations.” Treichler v. Comm’r of Soc. Sec. Admin., 12 775 F.3d 1090, 1097 (9th Cir. 2014) (quoting 20 C.F.R. § 404.1545(a)(1)). The RFC 13 assessment is “based on all the relevant medical and other evidence” in the claimant’s 14 record. Id. (quoting 20 C.F.R. § 404.1520(e)). In determining a claimant’s RFC, the ALJ 15 must consider all of a claimant’s medically determinable impairments, including those that 16 are not severe. 20 C.F.R. § 404.1545(a)(2). 17 At step four, the ALJ considers the claimant’s RFC and past relevant work. 20 18 C.F.R. § 404.1520(a)(4)(iv). If a claimant can perform her past relevant work, she is not 19 found to be disabled. Id. 20 When a claimant satisfies step four, the burden shifts from her to the Commissioner 21 to establish the claimant is able to perform work in the national economy. Tackett v. Apfel, 22 180 F.3d 1094, 1098 (9th Cir. 1999) (claimant bears the burden of proof on the first four 23 steps, but the burden shifts to the Commissioner at step five). The fifth and final step 24 involves the ALJ’s decision whether a claimant can make an adjustment to other work, 25 given the ALJ’s assessment of the claimant’s RFC and age, education and work experience. 26 20 C.F.R. § 404.1520(a)(4)(v). 27 . . . 28 . . . 1 IV. ADMINISTRATIVE HEARING 2 On September 15, 2017, ALJ Carla Waters conducted an administrative hearing at 3 which Claimant was represented by counsel and used an interpreter to translate from 4 English into Spanish. (Doc. 15-3 at 76-77) Claimant explained that she had three adult 5 children and lived with her son and her boyfriend. (Id. at 82) Claimant said her current 6 income source was long-term disability payments. (Id.) She stated she was unable to drive 7 because of her medications. (Id.) Claimant testified that the highest grade she finished in 8 school was ninth grade, in California. She said she was able to speak or understand 9 English, “a little bit.” (Id. at 82-83) 10 Claimant explained that she last worked in October 2009 when she had an accident 11 at work, after which she received workman’s compensation and then long-term disability 12 payments. (Id. at 83) Claimant declared the medical conditions preventing her from 13 working included lower back pain, problems with her left knee, fibromyalgia, and arthritis. 14 (Id. at 83-84) She explained that her doctor wanted to place a stimulator in her back, but 15 that she was “too scared.” (Id. at 84) Claimant said her pain medications helped her “[a] 16 little bit, not very much.” (Id. at 86) She further stated that some of her pain medications 17 made her sleepy. (Id.) Claimant told the ALJ that steroid injections in her back helped her 18 for one month, and that she had engaged in physical therapy for 10 sessions that were 19 covered by insurance. (Id. at 87) She explained that she used a cane and said the cane had 20 been prescribed by Dr. Sadek three years before. (Id.) 21 On questioning by her attorney, Claimant answered that changing from sitting to 22 standing helped her pain but did not eliminate it. (Id. at 90) Claimant further explained 23 that she did not feel she was able to engage in full-time work because she could not move 24 or lift heavy things, and because sometimes in her mind she didn’t “feel like myself.” (Id.) 25 The ALJ inquired of the Vocational Expert (“VE”) about a hypothetical individual 26 who could work at a light exertional level, but would be limited to standing and walking 27 for a total of 2 hours in an 8-hour workday, and who would “be able to perform simple 28 routine and repetitive work tasks involving simple work-related decisions and simple 1 instructions.” (Id. at 93) The VE advised that this individual would be unable to perform 2 Claimant’s past work because of the limitation in standing and walking. (Id. at 94) The 3 VE provided examples of work at a light exertional level in which an individual could sit 4 and stand while performing the job, including parking lot cashier, electrical accessories 5 assembler, and small parts assembler. (Id.) The VE advised the ALJ that her identification 6 of these positions did not take language ability into consideration. (Id.) 7 The ALJ posed another hypothetical in which the individual could perform work at 8 the light exertional level and who could perform simple routine and repetitive work tasks 9 requiring simple work-related decisions and simple instructions. (Id. at 95) The VE 10 advised the ALJ that such an individual could perform Claimant’s past work as generally 11 performed. (Id.) 12 The VE opined that if the individual were unable to use foot controls, this would 13 not rule out Claimant’s past work and also would not rule out the jobs the VE identified 14 regarding the first hypothetical. (Id. at 96-97) The VE instructed that there would be no 15 work for an individual who is constantly off task. (Id. at 97) Similarly, the VE opined 16 there would be no work for an individual who required the ability to recline or lie down in 17 excess of the typical morning, afternoon, and lunch breaks and take unscheduled breaks of 18 5 minutes every 15 to 20 minutes. (Id.) Likewise, the VE explained there would be no 19 work for an individual who needed to be absent more than four times a month, or for an 20 individual who was limited in using her hands to grasp, turn, and twist objects only 10% 21 of the day, use her fingers for fine manipulation only 10% of the day and use her arms for 22 reaching only 5% of an 8-hour workday. (Id.) In contrast, the VE advised the ALJ that an 23 individual requiring a cane for ambulation would not rule out the three positions the VE 24 identified for the first hypothetical. (Id. at 98) 25 V. ALJ’s DECISION 26 The ALJ issued her unfavorable decision on March 21, 2018. (Doc. 15-3 at 26-43) 27 The ALJ recognized that Claimant had “filed a prior Title II application on May 19, 2011” 28 and another ALJ in that matter had issued an unfavorable decision. (Id. at 26) The ALJ 1 found that Claimant had “rebutted the presumption of continuing non-disability and had 2 shown ‘changed circumstances’ indicating greater disability” such that the “presumption 3 of continuing non-disability [did] not apply. (Id. at 29) 4 The ALJ stated that Claimant’s date last insured was June 30, 2015, meaning 5 Claimant must establish disability on or before that date to qualify for benefits. (Id.) The 6 ALJ concluded Claimant had not engaged in substantial gainful activity from April 9, 2015, 7 her amended alleged onset date, through her date last insured. (Id.) 8 The ALJ found that Claimant, through her date last insured, suffered from the severe 9 impairments of degenerative disc disease, history of iron deficiency anemia, status post left 10 lower extremity deep venous thrombosis, gastroesophageal reflux disease, cervical 11 radiculopathy, depression, and fibromyalgia. (Id.) The ALJ further found that Claimant 12 suffered from the non-severe impairments of headaches and carpal tunnel syndrome. (Id. 13 at 33-34) Additionally, the ALJ indicated Claimant did not have a single impairment or a 14 combination of impairments meeting or equaling the severity of a listed impairment. (Id. 15 at 34-35) 16 The ALJ concluded that through Claimant’s date last insured of June 30, 2015, she 17 retained the RFC to perform “light work as defined in 20 CFR 404.1567(b)” except that 18 she was limited to: standing and walking for two hours in an 8-hour work day; only 19 occasionally climbing ramps and stairs; never climbing ladders, ropes, or scaffolds; 20 frequently balancing, stooping, and crouching; occasionally kneeling and crawling; 21 frequently reaching overhead; and having no exposure to hazards. (Id. at 35) The ALJ 22 also found Claimant was able to “perform simple, routine, and repetitive tasks involving 23 simple work-related decisions and simple instructions.” (Id.) 24 The ALJ concluded that “given the claimant’s history of chronic pain, including 25 degenerative disc disease and fibromyalgia, restriction to the light exertional level was 26 appropriate prior to the date last insured.” (Id. at 35) The ALJ found the record, including 27 opinion evidence, supported the RFC she had determined. (Id. at 41) The ALJ determined 28 that Claimant was not able to perform her past relevant work and that because Claimant’s 1 past relevant work was unskilled, transferability of job skills was not at issue. (Id. at 41- 2 42) 3 The ALJ concluded that Claimant had received “a limited education and is able to 4 communicate in English.” (Id. at 41) Although the ALJ noted that Claimant participated 5 at her hearing using an English/Spanish language interpreter, the ALJ also emphasized that 6 Claimant had communicated in English at her previous hearing and had explained then that 7 although she did not “speak English that well,” she was able to understand and answer the 8 questions. (Id.) Further, the ALJ declared that none of Claimant’s treating physicians 9 documented the need for consultation in Spanish, the use of an interpreter, or difficulties 10 communicating with Claimant in their treatment notes. (Id. at 42) The ALJ observed that 11 Dr. Haley reported that Claimant was bilingual in Spanish and English, although Spanish 12 was her primary language. (Id.) 13 Based on VE testimony at the hearing, the ALJ identified the representative 14 occupations of electrical accessories assembler and small parts assembler within the RFC 15 she determined for Claimant. (Id. at 43) The ALJ found that Claimant had not been under 16 a disability as defined in the Social Security Act from her amended alleged onset date of 17 April 9, 2015, through June 30, 2015, the date last insured. (Id.) 18 VI. DISCUSSION 19 Claimant first contends the ALJ did not adequately assess the opinion evidence 20 about Claimant’s physical health when developing the RFC. (Doc. 19 at 1, 13-19) 21 Claimant also argues the ALJ erred by failing to make an express finding about literacy in 22 order to make an adequate assessment of the application of the Medical Vocational 23 Guidelines. (Id. at 1, 19-21) Finally, Claimant asserts the ALJ was not a proper and 24 constitutionally appointed ALJ, and that her case should be remanded for a new hearing 25 with “a different and constitutionally-appointed ALJ.” (Id. at 1, 21-24) 26 In response, the Commissioner argues that substantial evidence supports the ALJ’s 27 assessment of the medical opinion evidence and the ALJ’s finding that Claimant had a 28 limited education in the English language, and that Claimant “forfeited her challenge to the 1 appointment of the ALJ because she did not timely raise that challenge in administrative 2 proceedings.” (Doc. 21 at 9-24) Each of Claimant’s contentions is addressed in order, 3 below.

4 A. The ALJ erred by rejecting the opinions of Drs. Fruchtman and 5 Feldman 6 Claimant argues the ALJ erred in according only “minimal weight” to the opinions 7 of examining consultative Dr. Fruchtman and treating physician Dr. Feldman, while giving 8 greater weight to the opinion of non-examining state agency reviewer Dr. Roberts.4 (Doc. 9 19 at 13, 14-19) 10 Dr. Feldman reported he had seen Claimant every two to three months from 11 November 2012 to November 2014, when Dr. Feldman completed an RFC Questionnaire 12 form regarding Claimant’s limitations. (Doc. 15-9 at 92-94) The doctor listed Claimant’s 13 diagnoses as fibromyalgia and chronic pain syndrome, and her symptoms as “chronic 14 widespread pain, fatigue, low back pain [and] paresthesias in hands and feet.” (Id.) Dr. 15 Fruchtman concluded that Claimant was not “physically capable of working an 8-hour day, 16 5 days a week employment on a sustained basis.” (Id. at 93) 17 Addressing Dr. Feldman’s opinions on Claimant’s limitations set forth in the 18 November 2014 RFC questionnaire form (Doc. 15-9 at 92-94), the ALJ stated that Dr. 19 Feldman’s treatment notes did not support the limitations he identified because Dr. 20 Feldman “treated [Claimant] conservatively, with an unchanged pain medication regimen 21 and periodic injections, which were noted to be successful.” (Doc. 15-3 at 39) 22 Consultative examiner Dr. Fruchtman diagnosed Claimant with fibromyalgia and a 23 ‘“typical’ do not touch me syndrome.” (Doc. 15-10 at 246) The doctor opined on 24 Claimant’s exertional and postural limitations and ultimately concluded that because of 25 Claimant’s fibromyalgia symptoms and chronic pain, she would not be capable of 26 performing a full-time job. (Id. at 249) Dr. Fruchtman indicated that he based Claimant’s

27 4 Claimant relies on Dr. Roberts’ August 2015 opinion in which Dr. Roberts concluded that 28 Claimant would be limited to sedentary work (Doc. 15-4 at 41) but ignores Dr. Roberts’ September 2015 opinion that Claimant was limited to light work (Id. at 66). 1 limitations more on her reported symptoms than on objective test results, but concluded 2 Claimant exhibited “typical fibromyalgia pinpoint tenderness.” (Id. at 248) 3 The ALJ stated that Dr. Fruchtman “appeared to rely heavily on the claimant’s 4 reports of symptoms and limitations” while “diagnostic testing showed mild 5 abnormalities.” (Doc. 15-3 at 40) The ALJ concluded that Claimant’s limitations were 6 not as severe as Dr. Fruchtman opined, and that the doctor’s opinion was “significantly 7 inconsistent with the weight of the other opinion evidence, which renders it less 8 persuasive.” (Id.) 9 The ALJ recognized that Claimant suffered from the severe impairment of 10 fibromyalgia through the date last insured. (Id. at 29) The ALJ found that Claimant’s 11 fibromyalgia “significantly limited the claimant’s ability to perform basic work activities” 12 and referenced SSR 12-2p (Evaluation of Fibromyalgia). (Id. at 33) However, the ALJ 13 also found that “[g]iven the claimant’s history of chronic pain, including degenerative disc 14 disease and fibromyalgia, restriction to the light exertional level was appropriate prior to 15 the date last insured.” (Id. at 35) The ALJ concluded that as of April 2015, Claimant’s 16 treatment regimen “was stable and appeared successful” and that “her providers indicate 17 successful management of pain and functionality with her unadjusted regimen.” (Id. at 36) 18 This conclusion, however, relies on Claimant’s statements that she obtained some relief 19 from pain medication and periodic injections providing relief to her low back pain, and 20 ignores Claimant’s consistent reporting of high levels of overall body pain despite injection 21 procedures and treatment with narcotic pain medication. Instead, the ALJ concluded there 22 was “little objective imaging or clinical observation that might support the level of pain 23 and limitation described.” (Doc. 15-3 at 36) As examples, the ALJ cited Claimant’s most 24 recent MRI, x-rays of her spine, physical examinations, and neurological tests. (Id. at 36- 25 37) The ALJ also noted evidence that Claimant “was able to perform exercises at physical 26 therapy adequately, for sessions of up to an hour,” although she provides no description of 27 what the exercises were. (Id. at 37) 28 1 “In evaluating whether a claimant’s residual functional capacity renders them 2 disabled because of fibromyalgia, the medical evidence must be construed in light of 3 fibromyalgia’s unique symptoms and diagnostic methods....” Revels v. Berryhill, 874 4 F.3d 648, 662 (9th Cir. 2017). Specifically, fibromyalgia diagnoses are based almost 5 entirely on subjective “reports of pain and other symptoms,” and “there are no 6 laboratory tests to confirm the diagnosis.” Benecke v. Barnhart, 379 F.3d 587, 590 (9th 7 Cir. 2004). 8 The ALJ’s decision does not make it clear the extent to which the ALJ arrived at 9 Claimant’s RFC based on application of SSR 12-2p, and the extent to which she rejected 10 the opinions of Drs. Feldman and Fruchtman because of a lack of “objective imaging 11 or clinical observation that might support the level of pain and limitation described.” 12 These errors undermine the ALJ’s ultimate disability decision. See Molina v. 13 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). Accordingly, this issue requires remand 14 to the ALJ to clarify the extent to which Claimant’s fibromyalgia-related symptoms 15 may support the RFC defined for Claimant and to clearly explain how the ALJ has 16 evaluated Claimant’s fibromyalgia-related medical evidence, including the opinions of 17 Drs. Fruchtman and Feldman, under SSR 12-2p. See Revels, 874 F.3d at 654-56, 664- 18 68. 19 B. The ALJ did not err in relying on VE testimony at Step 5 20 Claimant contends the ALJ erred at Step 5 of the sequential evaluation when she 21 concluded Claimant was able to perform light level work but was limited to no more than 22 2 hours of standing and/or walking in an 8-hour workday. (Id. at 13-14) Claimant states 23 that a full range of light work “requires standing or walking, off and on, for a total of 24 approximately 6 hours of an 8-hour workday.” (Id. at 13 (citing SSR 83-10)) Claimant 25 further argues that the ALJ was wrong to rely on Vocational Expert testimony identifying 26 positions categorized at the light level that could be performed without being able to meet 27 the requirement of being able to stand and/or walk for 6 hours in an 8-hour workday. 28 Claimant asserts this distinction is important to her case because if she were limited to 1 sedentary work, she would be deemed disabled under the Medical-Vocational Guidelines 2 or “grids” because of her age and limited education, and because her past relevant work 3 was unskilled. (Id. at 14) 4 Comparable circumstances were presented in Moore v. Apfel, 216 F.3d 864 (9th Cir. 5 2000). In Moore, the issue was the ALJ’s Step 5 “determination whether substantial 6 gainful work exists in the national economy for the claimant despite his impairment.” 7 Moore, 216 F.3d at 869. The Ninth Circuit explained that the grids apply to “claimants 8 with substantially uniform levels of impairment” and that “[w]hen the grids do not 9 completely describe the claimant’s abilities and limitations, such as when the claimant has 10 both exertional and nonexertional limitations . . ., the grids are inapplicable and the ALJ 11 must take the testimony of a VE.” Id. The claimant in Moore argued that because he was 12 more than 50 years old, “the ‘grid’ for ‘sedentary’ work applicable to his impairment would 13 direct a finding of ‘disabled,’ and the grid for ‘light’ work would direct a finding of ‘not 14 disabled.’” Id. at 870. The Ninth Circuit declared that the claimant suffered from both 15 “exertional (difficulty standing, bending, etc.) and nonexertional (inability to work around 16 irritating fumes, difficulty expressing himself) limitations.” Id. The court concluded that 17 the claimant’s exertional limitations placed him between two grids and stated that: 18 [w]hen a claimant suffers from both exertional and nonexertional limitations, 19 the grids are only a framework and a VE must be consulted. Burkhart, 856 F.2d at 1340, Cooper, 880 F.2d at 1155-56. SSR 83-12 directs that when a 20 claimant falls between two grids, consultation with a VE is appropriate. SSR 21 83-12(2)(c). 22 Id. The Ninth Circuit rejected the argument that the ALJ should have found the light work 23 “was so reduced that it was essentially equivalent to the lower category, ‘sedentary’ work, 24 which would have meant he was classified as ‘disabled.’” Id. The court held that as the 25 claimant suffered from both exertional and nonexertional limitations, the ALJ had to rely 26 on VE opinion before making a determination. Id. at 870-71. The Ninth Circuit further 27 explained that: 28 1 SSR 83-12 does not mandate a finding of “disabled.” Instead, it mandates the use of a VE, which was exactly the process used in this instance. 2 Moreover, even assuming that the evidence rationally supports Moore’s 3 argument, it also clearly supports the ALJ's decision to use a VE, and his 4 subsequent ruling. “Where evidence is susceptible of more than one rational interpretation, it is the ALJ’s conclusion which must be upheld.” 5 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). The ALJ’s 6 finding that Moore was not disabled because substantial gainful work exists in the national economy was supported by substantial evidence. 7 8 Id. at 871. 9 Although Claimant cites to three district court opinions that support her position, 10 two of those decisions, Merritt v. Colvin, No. 3:14-cv-05964-KLS, 2015 WL 4039355 11 (W.D. Wash. July 2, 2015) and Campbell v. Astrue, Civil Action No. 09-5356, 2010 WL 12 4689521 (E.D. Pa. Nov. 2, 2010), do not distinguish or address the Ninth Circuit’s opinion 13 in Moore v. Apfel. Claimant’s third cited case is McClure v. Comm’r of Soc. Sec., No. 14 15cv1312-LAB-RBB, 2016 WL 4628049 (S.D. Cal. Aug. 9, 2016), report and 15 recommendation adopted, No. 15cv1312-LAB (RBB), 2016 WL 4625572 (S.D. Cal. 16 2016). In McClure, the Magistrate Judge appeared to agree with the claimant’s argument 17 that Moore was not analogous to her case because in Moore the claimant was limited to 18 sitting for 4 to 6 hours a day and “there was no indication whether the plaintiff was limited 19 in his standing or walking abilities.” 2016 WL 4628049, at *7. 20 In contrast, numerous district courts within the Ninth Circuit have been asked to 21 decide the issue Claimant raises here, that is, whether an ALJ errs by relying on Vocational 22 Expert testimony about available light work positions even though the claimant is limited 23 to standing and/or walking for a total of just two hours out of an eight-hour workday. 24 Macumba v. Berryhill, No. 1-17-cv-01677-SKO, 2019 WL 95462, at **11-14 (E.D. Cal. 25 Jan. 3, 2019); Gilbert v. Berryhill, No. 3:16-CV-05695-DWC, 2017 WL 406169, at *4 26 (W.D. Wash. Jan. 30, 2017); Lopez v. Colvin, No. ED CV 15-00976-DFM, 2016 WL 27 429783, at **2-3 (C.D. Cal. Feb. 3, 2016); Martinez v. Colvin, No. 6:14-cv-01703-MC, 28 2016 WL 270911, at **1-4 (D. Or. Jan. 20, 2016); Avilez v. Colvin, No. EDCV 14-0732- 1 JPR, 2015 WL 1966916, at ** 3-6 (C.D. Cal. Apr. 30, 2015); Ortiz v. Colvin, No. ED CV 2 14-61-AS, 2014 WL 7149544, at *4 (C.D. Cal. Dec. 15, 2014). In each of these cases the 3 court held that the ALJ did not err at Step 5 where the ALJ identified the claimant’s 4 limitations making them incapable of performing the full range of light work and the VE 5 identified light work positions the claimant could still perform. The Court finds these 6 decisions persuasive. 7 The ALJ found that, through Claimant’s date last insured, she was not able to 8 perform her past relevant work. (Doc. 15-3 at 41) Accordingly, at Step 5 of the sequential 9 analysis, the ALJ bore the burden of showing that Claimant could “make an adjustment to 10 other work” based on Claimant’s RFC, age, education, and work experience. 20 C.F.R. §§ 11 404.1520(a)(4)(v); 404.1560(c)(1); Molina, 674 F.3d at 1110. The ALJ found that 12 Claimant was 53 years old and thus “defined as an individual ‘closely approaching 13 advanced age,’” on her date last insured. (Doc. 15-3 at 41) The ALJ also determined that 14 Claimant “has a limited education and is able to communicate in English.” (Id.) While the 15 Court concludes the ALJ did not err by relying on Vocational Expert testimony about 16 available light work positions even though she found Claimant was limited to standing 17 and/or walking for a total of two hours out of an eight-hour workday, the ALJ did err 18 by not making a finding on whether Claimant was literate in English, as is explained 19 below. 20 C. The ALJ erred by not making an express finding on Claimant’s literacy 21 Claimant argues the ALJ failed to adequately assess the application of the grids at 22 Step 5 pursuant to 20 C.F.R. Part 404, Subpart P, Appendix 2, § 202.09 and § 202.10 23 because the ALJ did not expressly find Claimant was literate. (Doc. 19 at 19-21) The 24 Court agrees. The grids are rules that direct findings of “disabled” or “not disabled.” 25 Heckler v. Campbell, 461 U.S. 458, 467-68 (1983). The grids are based on vocational 26 factors, such as age, education and work experience, as well as the claimant’s RFC 27 determination. 20 C.F.R., Pt. 404, Subpt. P, App. 2 § 200.00(a). Medical–Vocational Rule 28 202.09 directs a finding of disabled when a person is closely approaching advanced age, 1 “has a skilled or semi-skilled work history with no transferable skills or an unskilled work 2 history,” and is illiterate or unable to communicate in English. Silveira v. Apfel, 204 F.3d 3 1257, 1261 n. 11 (9th Cir. 2000); 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 2, Rule 4 202.09. 5 Here, the issue of Claimant’s literacy is critical to the application of the grids 6 because the ALJ found Claimant was closely approaching advanced age, has relevant 7 unskilled work experience that she is no longer able to perform, and where the Claimant 8 argues the ALJ did not find that that Claimant is literate in English. 20 C.F.R. § Pt. 404, 9 Subpt. P, App. 2, Table 2. It is the ALJ’s burden to determine if Claimant is literate. 10 Silveira, 204 F.3d at 1261-62. Under these circumstances, whether Rule 202.09 directs a 11 finding that Claimant is disabled based on her limitation to light work due to her exertional 12 limitations turns on whether she is illiterate or unable to communicate in English.5 13 “[Claimant] is illiterate or unable to communicate in English if [she] is either illiterate in 14 English or unable to communicate in English or both.” See Silveira, 204 F.3d at 1261 15 (footnote omitted). 16 Applicable regulations define “illiteracy” as “the inability to read or write.” See 20 17 C.F.R. §§ 404.1564(b)(1), 416.964(b)(1). The regulations further explain that “We 18 consider someone illiterate if the person cannot read or write a simple message such as 19 instructions or inventory lists even though the person can sign his or her name.” Id. The 20 regulations applicable to the ALJ’s decision defined the “ability to communicate in 21 English” as “the ability to speak, read and understand English.” See 20 C.F.R. §§ 22 404.1564(b)(5), 416.964(b)(5). 23 Claimant challenges the ALJ’s finding that Claimant had a limited education for the 24 purposes of 20 C.F.R. § 404.1564. “A distinction exists between an assessment of literacy 25 and an assessment of the ability to communicate in English. An ALJ must consider both 26 in determining whether a claimant can perform work pursuant to the regulations.”

27 5 It bears noting that when the VE provided the ALJ with a list of three positions that the 28 hypothetical individual could perform, the VE noted she was providing these representative positions without “taking into consideration the language.” (Doc. 15-3 at 94) 1 Calderon v. Astrue, No. 1:08-cv-1015 GSA, 2009 WL 3790008, at *9 (E.D. Cal. Nov. 10, 2 2009) (citing 20 C.F.R. §§ 404.1564(b), 416.964(b)). Illiteracy is “define[d] as ‘the 3 inability to read or write,’” and “refers to literacy in English.” Silveira, 204 F.3d at 1261 4 (quoting 20 C.F.R. § 416.964(b)(1)). Communication in English concerns “the ability to 5 speak, read and understand English....” 20 C.F.R. § 404.1564(b)(5). The “failure to make 6 a finding as to literacy and to provide reasons for the finding made as to English 7 communication abilities warrant remand for determination of these issues.” Garcia v. 8 Astrue, No. 1:11-cv-1956-SKO, 2013 U.S. Dist. LEXIS 12758, at *20, 2013 WL 394517 9 (E.D. Cal. Jan. 30, 2013); see also Silveira, 204 F.3d at 1261-62 (remanding case where 10 the ALJ made no express finding that the claimant was literate in English); Calderon, 2009 11 WL 3790008, at *10 (“because the capability to communicate in English pertains to one 12 who can ‘speak, read, and understand’ the language, the lack of information in the record 13 pertaining to Plaintiff’s ability to read is insufficient to uphold the ALJ’s finding regarding 14 Plaintiff’s ability to communicate”) (internal quotation omitted, emphasis in original). 15 The Commissioner argues that substantial evidence supports a conclusion that 16 Claimant can read and write in English. (Doc. 21 at 15-165) In her unfavorable decision, 17 however, the ALJ did not make any express findings regarding Claimant’s literacy. She 18 stated, without providing evidence in support, that Claimant had a “limited education” and 19 also concluded that Claimant “is able to communicate in English.” (Doc. 15-3 at 41) The 20 ALJ supported her finding that Claimant was able to communicate in English with evidence 21 Claimant had communicated in English at the hearing associated with her previous 22 application for benefits, and that her treating physicians’ appointment notes do not indicate 23 that Claimant needed to use an interpreter, required consultation in Spanish, or otherwise 24 had difficulties in communication. (Id. at 41-42) Additionally, the ALJ cited to the 25 psychological examination conducted by Dr. Haley, and noted that Dr. Haley reported 26 Claimant was bilingual in Spanish and English, that Claimant only occasionally asked for 27 clarification on questions, and that Claimant proceeded during the examination without an 28 interpreter, understood and answered simple questions in English, and did not exhibit 1 word-finding issues. (Id. at 42) That the ALJ’s focus was solely on evidence that Claimant 2 could speak and understand some English begs the question of whether Claimant has 3 sufficient ability to read and write in English. 4 The Court reviews only the “reasoning and factual findings offered by the ALJ–not 5 post hoc rationalizations that attempt to intuit what the adjudicator may have been 6 thinking.” Bray v. Comm'r of Soc. Sec., 554 F.3d 1219, 1226 (9th Cir. 2009) (citing SEC 7 v. Chenery Corp., 332 U.S. 194, 196 (1947)); see also Garrison v. Colvin, 759 F.3d 995, 8 1010 (9th Cir. 2014) (“We review only the reasons provided by the ALJ in the disability 9 determination and may not affirm the ALJ on a ground upon which he did not rely.”). The 10 ALJ made no finding regarding Claimant’s literacy in English, and the decision is subject 11 to remand on that basis.

12 D. Claimant’s appointments clause challenge is untimely and is therefore 13 waived 14 Claimant argues that the ALJ who adjudicated her case was not constitutionally 15 appointed. (Doc. 19 at 21-24) As such, she maintains that her case should be remanded 16 for a new hearing with a different and constitutionally appointed ALJ should the Court find 17 no error elsewhere. (Id.) 18 Under the Appointments Clause of the Constitution, art. II, § 2, cl. 2, “[o]nly the 19 President, a court of law, or a head of department” may appoint “Officers of the United 20 States.” Lucia v. S.E.C., __U.S.__,138 S.Ct. 2044, 2051 (2018). In Lucia, the Supreme 21 Court held that ALJs within the Securities and Exchange Commission (“SEC”) qualified 22 as such “Officers.” Id. at 2049. The claimant in Lucia appeared before an ALJ of the SEC 23 and alleged that the administrative proceeding was “invalid” because the ALJ had not been 24 constitutionally appointed. Id. at 2050. The Supreme Court agreed and held that the proper 25 remedy was for the SEC to hold a new hearing with a different and constitutionally 26 appointed ALJ. Id. at 2055. It further held that such challenges must be “timely” in order 27 for relief to be granted. Id. Because the claimant in Lucia had “contested the validity of 28 [the ALJ’s] appointment before the [SEC],” his challenge was “timely” and he was 1 therefore entitled to relief. Id. 2 Here, because Claimant failed to raise an Appointments Clause challenge at her 3 hearing, Claimant’s challenge is untimely and forfeited. Meanel v. Apfel, 172 F.3d 1111, 4 1115 (9th Cir. 1999) (“[A]t least when claimants are represented by counsel, they must raise 5 all issues and evidence at their administrative hearings in order to preserve them on 6 appeal.”); see Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017); SSR 19-1p, 2019 7 WL 1324866, at *3 (Mar. 15, 2019). In arguing the contrary, Claimant cites to Sims v. 8 Apfel, 530 U.S. 103, 112 (2000), in which the Supreme Court held that claimants need not 9 raise issues before the Appeals Council in order to preserve judicial review of those issues. 10 (Doc. 19 at 23-24) However, the issue of whether a claimant needed to exhaust all issues 11 before the ALJ was not before the Supreme Court in Sims. Id. at 107. Thus, in Shaibi v. 12 Berryhill, which postdates Sims, the Ninth Circuit acknowledged that the holding in Sims 13 did not disturb the Circuit’s rule announced in Meanel that claimants need to have raised 14 all issues at their administrative hearings in order to preserve the issues on appeal. 883 15 F.3d at 1109. Accordingly, the Court finds Claimant’s Appointments Clause challenge 16 here is untimely for failure to raise the issue at her administrative hearing. 17 The Ninth Circuit has not ruled specifically on the applicability of the Appointments 18 Clause and timeliness of challenges to ALJs within the Social Security Administration. 19 However, the Court’s holding here is consistent with district court decisions on this 20 question within the Ninth Circuit. See, e.g., Roland P. v. Saul, No. EDCV 19-1216-JPR, 21 2020 WL 2556349, at *3 n.3 (C.D. Cal. May 20, 2020); Latosha v. Saul, No. ED CV 18- 22 2475-SP, 2020 WL 1853310, at **7-8 (C.D. Cal. Apr. 13, 2020); Jason D. v. Saul, No. 23 3:19-CV-00176-SLG, 2020 WL 1816470, at *15 (D. Alaska Apr. 10, 2020); Wendy R. v. 24 Comm’r, Soc. Sec. Admin., No. 6:19-cv-00176-SU, 2020 WL 1172694, at *6 (D. Or. Mar. 25 10, 2020); Montijo v. Comm’r of Soc. Sec. Admin., No. CV-19-1088-PHX-ESW, 2020 WL 26 813771, at *5 (D. Ariz. Feb. 19, 2020); Younger v. Comm’r of Soc. Sec. Admin., No. CV- 27 18-02975-PHX-MHB, 2020 WL 57814, at *5 (D. Ariz. Jan. 6, 2020) (collecting cases); 28 James A. v. Saul, No. 19-cv-00104-TSH, 2019 WL 4600940, at *15 (N.D. Cal. Sept. 23, 1 2019). 2 VII. REMAND FOR FURTHER PROCEEDINGS 3 Claimant urges the Court to remand for payment of benefits or, alternatively, for 4 additional proceedings. (Doc. 19 at 24-25) The Commissioner urges the Court to affirm 5 the Commissioner’s final decision or, alternatively, to remand for further proceedings. 6 (Doc. 21 at 24-26) 7 In the Ninth Circuit, a remand with instruction to award benefits is appropriate if 8 each of three circumstances exist: “(1) the record has been fully developed and further 9 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 10 provide legally sufficient reasons for rejecting evidence …; and (3) if the improperly 11 discredited evidence were credited as true, the ALJ would be required to find the claimant 12 disabled on remand.” Garrison, 759 F.3d at 1020. A court’s decision to remand a 13 disability benefits case to the Social Security Administration for payment of benefits or for 14 further proceedings is discretionary. Harman v. Apfel, 211 F.3d 1172, 1173 (9th Cir. 2000). 15 However, remand for an award of benefits is granted only in “rare circumstances,” “where 16 no outstanding issues remain and further proceedings would not be useful” and where “the 17 record, taken as a whole, leaves not the slightest uncertainty as to the outcome of [the] 18 proceeding.” Treichler, 775 F.3d at 1100-01 (citation and internal quotation marks 19 omitted). See also Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017), amended Jan. 20 25, 2018 (“An automatic award of benefits in a disability benefits case is a rare and 21 prophylactic exception to the well-established ordinary remand rule.”) Instead, generally 22 the court will “remand to the agency for additional investigation or explanation.” 23 Treichler, 775 F.3d at 1099 (citation and internal quotation marks omitted). 24 In Treichler, the Ninth Circuit cited with approval its earlier decision to remand a 25 case after an ALJ “erred in making inadequate findings to support his conclusion that the 26 claimant was not credible” and to allow “’further findings evaluating the credibility of 27 [claimant’s] subjective complaints,’ while noting that on remand the ALJ could deny 28 benefits if he made adequate findings.” Id. (quoting Byrnes v. Shalala, 60 F.3d 639, 642 Cir. 1995)). Moreover, this Court cannot conclude that the record provides “not the || slightest uncertainty as to the outcome.” /d. at 1101. 3 For the reasons set forth above, further proceedings are appropriate here because the 4|| ALJ must make an express finding regarding Claimant’s literacy in English and must also 5 || explain clearly the application of SSR 12-2p to Claimant’s medical record and the opinions || of Drs. Feldman and Fruchtman while defining Claimant’s RFC. 7 Accordingly, 8 IT IS ORDERED that the final decision of the Commissioner of Social Security is VACATED and this matter is REMANDED to the Commissioner for further proceedings 10 || consistent with this Order. 11 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment. 12 Dated this 28th day of May, 2020. 13 / . 14 Mitirek Ul Jin, 15 Honorable Deborah M. Fine United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28

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