Speaks v. Kijakazi

Opinion

EASTERN DISTRICT OF WASHINGTON 1 Jan 12, 2023 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON

8 AIMEE S., 1 No. 1:21-CV-03041-ACE

9 Plaintiff, ORDER GRANTING PLAINTIFF’S 10 MOTION FOR SUMMARY 11 v. JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS 12 KILOLO KIJAKAZI, 13 ACTING COMMISSIONER OF SOCIAL SECURITY, 14 ECF Nos. 16, 18 15 Defendant.

16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 No. 16, 18. Attorney D. James Tree represents Aimee S. (Plaintiff); Special 18 Assistant United States Attorney Jeffrey Staples represents the Commissioner of 19 Social Security (Defendant). The parties have consented to proceed before a 20 magistrate judge. ECF No. 6. After reviewing the administrative record and the 21 briefs filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary 22 Judgment; DENIES Defendant’s Motion for Summary Judgment; and 23 REMANDS the matter to the Commissioner for additional proceedings pursuant to 24 42 U.S.C. § 405(g). 25

27 1 To protect the privacy of plaintiffs in social security cases, the undersigned 28 identifies them by only their first names and the initial of their last names. 1 JURISDICTION 2 Plaintiff protectively filed an application for Disability Insurance Benefits 3 and Supplemental Security Income on June 28, 2018, alleging disability since 4 February 1, 2018 due to cervical degeneration, fibromyalgia, chronic headaches, 5 right and left knee pain, and osteoarthritis.2 Tr. 351-68, 202. The applications 6 were denied initially and upon reconsideration. Tr. 254-60, 262-75. 7 Administrative Law Judge (ALJ) Glenn G. Meyers held a hearing on April 14, 8 2020, Tr. 42-70, and issued an unfavorable decision on May 6, 2020. Tr. 15-33. 9 Plaintiff requested review by the Appeals Council and the Appeals Council denied 10 the request for review on January 14, 2021. Tr. 1-6. The ALJ’s 2020 decision 11 became the final decision of the Commissioner, which is appealable to the district 12 court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review 13 on March 11, 2021. ECF No. 1. 14 STANDARD OF REVIEW 15 The ALJ is tasked with “determining credibility, resolving conflicts in 16 medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 17 1035, 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de 18 novo, with deference to a reasonable interpretation of the applicable statutes. 19 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ 20

21 2 Plaintiff previously filed for disability and supplemental security income 22 benefits in April 2006. See Tr. 75. At a May 2009 hearing before an ALJ, Plaintiff 23 requested a closed period of disability from March 2003 through May 2008. Id. 24 Her claim was denied by the ALJ in a decision dated June 2009. Tr. 72-89. Her 25 claim was remanded to the Agency by this Court in October 2012 and again in 26 September 2016. Tr. 95-117, 153-84. In a decision dated June 18, 2018, an ALJ 27 granted Plaintiff’s requested closed period of disability, finding she was disabled 28 from March 2003 through May 2008. Tr. 190-201. 1 may be reversed only if it is not supported by substantial evidence or if it is based 2 on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 3 evidence is defined as being more than a mere scintilla, but less than a 4 preponderance. Id. at 1098. Put another way, substantial evidence is such relevant 5 evidence as a reasonable mind might accept as adequate to support a conclusion. 6 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison 7 Co. v. NLRB, 305 U.S. 197, 229 (1938)). If the evidence is susceptible to more 8 than one rational interpretation, the Court may not substitute its judgment for that 9 of the ALJ. Tackett, 180 F.3d at 1098; Morgan v. Comm’r of Soc. Sec. Admin., 10 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 11 administrative findings, or if conflicting evidence supports a finding of either 12 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 13 Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). Nevertheless, a decision supported 14 by substantial evidence will be set aside if the proper legal standards were not 15 applied in weighing the evidence and making the decision. Brawner v. Sec’y of 16 Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 17 SEQUENTIAL EVALUATION PROCESS 18 The Commissioner has established a five-step sequential evaluation process 19 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 20 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 21 four the claimant bears the burden of establishing a prima facie case of disability. 22 Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes 23 that a physical or mental impairment prevents the claimant from engaging in past 24 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 25 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 26 the Commissioner to show (1) that the claimant can perform other substantial 27 gainful activity and (2) that a significant number of jobs exist in the national 28 economy which Plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1497-1498 1 (9th Cir. 1984); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a claimant 2 cannot make an adjustment to other work, the claimant will be found disabled. 20 3 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 4 ADMINISTRATIVE FINDINGS 5 On May 6, 2020 the ALJ issued a decision finding Plaintiff was not disabled 6 as defined in the Social Security Act. Tr. 15-33. 7 At step one, the ALJ found Plaintiff, who meets the insured status 8 requirements of the Social Security Act through December 31, 2023, had not 9 engaged in substantial gainful activity since her alleged onset date. Tr. 20. 10 At step two, the ALJ determined Plaintiff had the following severe 11 impairments: fibromyalgia, degenerative joint disease, degenerative disc disease, 12 obesity, depressive disorder, anxiety disorder, and substance addiction disorder. 13 Tr. 21. 14 At step three, the ALJ found Plaintiff did not have an impairment or 15 combination of impairments that met or medically equaled the severity of one of 16 the listed impairments. Id. 17 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 18 she could perform sedentary work, with the following nonexertional limitations: 19 [Plaintiff] can occasionally stoop and crouch; she cannot crawl, kneel, or 20 climb ramps, stairs, ropes, ladders, and scaffolds; she can engage in 21 unskilled, repetitive, routine tasks in 2-hour increments; she can have no 22 contact with the general public; she can work in proximity to but not in coordination with co-workers; she can have occasional contact with 23 supervisors; she will be 10 [percent] less productive than the average worker 24 in the workplace; and she will be absent from work 6 times per year. 25 Tr. 22. 26 At step four, the ALJ found Plaintiff was unable to perform past relevant 27 work. Tr. 26. 28 1 At step five, the ALJ found that, based on the testimony of the vocational 2 expert, and considering Plaintiff’s age, education, work experience, and RFC, 3 Plaintiff could perform jobs that existed in significant numbers in the national 4 economy, including the jobs of assembler, escort vehicle driver, and document 5 preparer. Tr. 26-27. 6 The ALJ thus concluded Plaintiff was not under a disability within the 7 meaning of the Social Security Act at any time from at any time from the alleged 8 onset date through the date of the decision. Tr. 28. 9 ISSUES 10 Plaintiff seeks judicial review of the Commissioner’s final decision denying 11 her disability insurance benefits under Title II and Title XVI of the Social Security 12 Act. The question presented is whether substantial evidence supports the ALJ’s 13 decision denying benefits and, if so, whether that decision is based on proper legal 14 standards. Plaintiff raises the following issues for review (1) whether the ALJ 15 properly evaluated the medical opinion evidence; (2) whether the ALJ conducted a 16 proper step-two analysis; (3) whether the ALJ properly evaluated Plaintiff’s 17 symptom complaints; (4) whether the RFC is consistent with disability; and (5) 18 whether the ALJ met his step five burden. ECF No. 16 at 2. 19 DISCUSSION 20 A. Medical Opinions 21 Plaintiff contends the ALJ erred by not properly assessing the medical 22 opinions of Patrick Metoyer, Ph.D., Michael Regets, Ph.D., and Matthew Comrie, 23 Psy.D. ECF No. 16 at 15-17. 24 For claims filed on or after March 27, 2017, new regulations apply that 25 change the framework for how an ALJ must evaluate medical opinion evidence. 26 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 27 168819, 82 Fed. Reg. 5844-01, (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. 28 The new regulations provide the ALJ will no longer give any specific evidentiary 1 weight to medical opinions or prior administrative medical findings. Revisions to 2 Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. §§ 3 404.1520c(a), 416.920c(a). Instead, the ALJ must consider and evaluate the 4 persuasiveness of all medical opinions or prior administrative medical findings 5 from medical sources. 20 C.F.R. §§ 404.1520c(a) and (b), 416.920c(a) and (b). 6 The factors for evaluating the persuasiveness of medical opinions and prior 7 administrative findings include supportability, consistency, the source’s 8 relationship with the claimant, any specialization of the source, and other factors 9 (such as the source’s familiarity with other evidence in the file or an understanding 10 of Social Security’s disability program). 20 C.F.R. §§ 404.1520c(c)(1)-(5), 11 416.920c(c)(1)-(5). 12 Supportability and consistency are the most important factors, and the ALJ 13 must explain how both factors were considered. 20 C.F.R. §§ 404.1520c(b)(2), 14 416.920c(b)(2). The ALJ may explain how he or she considered the other factors, 15 but is not required to do so, except in cases where two or more opinions are equally 16 well-supported and consistent with the record. Id. Supportability and consistency 17 are explained in the regulations: 18 (1) Supportability. The more relevant the objective medical evidence 19 and supporting explanations presented by a medical source are to 20 support his or her medical opinion(s) or prior administrative medical 21 finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 22

23 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 24 medical sources and nonmedical sources in the claim, the more 25 persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 26

27 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). 28 1 The Ninth Circuit recently addressed the issue of whether the new regulatory 2 framework displaces the longstanding case law requiring an ALJ to provide 3 specific and legitimate reasons to reject an examining provider’s opinion. Woods 4 v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). The Court held that the new 5 regulations eliminate any hierarchy of medical opinions, and the specific and 6 legitimate standard no longer applies. Id. at 788-89, 792. The Court reasoned the 7 “relationship factors” remain relevant under the new regulations, and thus the ALJ 8 can still consider the length and purpose of the treatment relationship, the 9 frequency of examinations, the kinds and extent of examinations that the medical 10 source has performed or ordered from specialists, and whether the medical source 11 has examined the claimant or merely reviewed the claimant’s records. Id. at 790, 12 792. Even under the new regulations, an ALJ must provide an explanation 13 supported by substantial evidence when rejecting an examining or treating doctor’s 14 opinion as unsupported or inconsistent. Id. at 792. 15 1. Dr. Metoyer 16 In September 2018, Dr. Metoyer performed a mental evaluation and 17 provided an opinion on Plaintiff’s level of functioning. Tr. 567-71. Dr. Metoyer 18 diagnosed her with panic disorder and major depressive disorder, recurrent and 19 moderate. Tr. 570. He opined Plaintiff appeared to have the ability to reason and 20 understand, had some adaption skills, and that her remote memory was intact, but 21 that her recent and immediate memory were mildly impaired. Tr. 571. He opined 22 her ability to sustain concentration and persistence were adequate based on the 23 evaluation, noting she described difficulty following through on tasks at home. Id. 24 He noted her report of “significant interpersonal challenges in her personal life and 25 prior work environment as a result of anxiety and mood symptoms,” and opined 26 her ability to interact with coworkers and the public was “likely moderately 27 impaired.” Id. He opined that due to her anxiety and mood symptoms and 28 tendency to isolate herself from others, her ability to maintain regular attendance in 1 the workplace was moderately impaired; and her ability to complete a regular 2 workday or workweek without interruption from anxiety and mood symptoms is 3 “likely moderately impaired.” Id. He opined her ability to deal with the usual 4 stress encountered in the workplace “is markedly impaired if it involved persistent 5 activity, complex tasks, task pressure, interacting with other individuals.” Id. He 6 also opined that if awarded benefits she “appears to require the assistance of a 7 payee at this time,” and he noted she appeared to have physical limitations that 8 would be better assessed by a medical provider. Tr. 570-71. 9 2. Dr. Regets and Dr. Comrie 10 In October 2018, Dr. Regets, a state agency psychological consultant, 11 reviewed Plaintiff’s records and rendered an opinion on her level of functioning. 12 Tr. 213-15. He opined she could sustain adequate concentration, persistence, and 13 pace to perform simple, routine, tasks and “more well-known or learned more 14 detailed tasks,” for up to two consecutive hours with normal breaks for a regular 15 eight-hour workday and 40-hour workweek. He opined Plaintiff would “do best in 16 a work setting that does not required frequent interaction with coworkers [and] 17 may have difficulties at times with attendance and punctuality but can perform 18 within acceptable workplace standards.” Tr. 214. He also opined she would “do 19 best in a work setting that does not require more than casual or incidental 20 interaction with the general public,” and in a stable, low pressure work setting with 21 clear expectations of the work to be performed. Id. In January 2019, Dr. Comrie 22 affirmed Dr. Regets’ opinion. Tr. 230-32. 23 The ALJ found the opinions of Dr. Metoyer, Dr. Regets, and Dr. Comrie 24 persuasive “given the lack on contrary allegation on [Plaintiff’s] part and lack of 25 conflicting opinion evidence.” Tr. 24. In a footnote, however, the ALJ also found 26 that “to the extent that Dr. Metoyer’s opinion is inconsistent” with the opinions of 27 the state agency reviewers, “I find [the state agency reviewers] opinions more 28 persuasive because their assessments were more specific and aligned with the 1 requirements of social security cases”; and “descriptors like mild, moderate, and 2 marked are not particularly appropriate or helpful in determining a [RFC].” Id. 3 Under the new regulations, supportability and consistency are the most 4 important factors to be considered in evaluating the persuasiveness of an opinion, 5 and the ALJ must explain how both factors were considered. 20 C.F.R. §§ 6 404.1520c(b)(2), 416.920c(b)(2). The more relevant objective evidence and 7 supporting explanations that support a medical opinion, and the more consistent an 8 opinion is with the evidence from other sources, the more persuasive the medical 9 opinion is. 20 C.F.R. § 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). Here, the ALJ 10 did not provide even a minimal articulation of how these factors were considered; 11 the ALJ summarizes the psychologists’ opinions but does not provide any analysis. 12 See Tr. 23-24. For example, there is no analysis or discussion of the examining 13 psychologist’s objective findings upon mental status exam, or the supporting 14 explanations of any of the psychologists, and no discussion of how the opinions 15 were consistent or inconsistent with each other or the record as a whole. Id. 16 Additionally, the ALJ’s findings are contradictory. First, the ALJ indicates 17 he finds all the opinions persuasive because of a “lack of conflicting opinion 18 evidence.” Tr. 24. However, in a footnote he finds that “to the extent that Dr. 19 Metoyer’s opinion is inconsistent” with the state agency opinions, the opinions of 20 Dr. Comrie and Dr. Regets are more persuasive. Id. n.1. The ALJ notes this is 21 because the state agency opinions are more “specific” and “aligned with the 22 requirements of Social Security cases” than Dr. Metoyer’s opinion, but does not 23 explain his conclusions. See Tr. 23-25. Review of Dr. Metoyer’s opinion, for 24 example, shows specific findings from his in-person evaluation, which included a 25 clinical interview and objective findings from a mental status exam, and he noted 26 he reviewed multiple treatment records as well. See Tr. 567-71. While his opinion 27 uses terms such as mild, moderate, and marked, Plaintiff points out that the state 28 agency providers use these and similar descriptors. ECF No. 16 at 16-17. Due to 1 the ALJ’s lack of analysis, it is unclear whether the ALJ found Dr. Metoyer’s 2 opinion consistent or inconsistent with the state agency opinions, and to what 3 extent. 4 Defendant argues the ALJ reasonably assessed the persuasiveness of the 5 medical opinions based upon their supportability and consistency with the record. 6 ECF No. 18 at 8. As explained supra, however, the ALJ provided brief and 7 contradictory findings concerning the opinion evidence, without discussion of the 8 factors required under the regulations or analysis of the medical opinions. This is 9 legally insufficient. Without the ALJ offering more than his stated conclusions, 10 the Court is unable to meaningfully review whether the ALJ’s interpretation of the 11 evidence is reasonable. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 12 2015); Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (requiring the ALJ 13 to identify the evidence supporting the found conflict to permit the Court to 14 meaningfully review the ALJ’s finding). 15 Defendant also contends that there is no conflict for the court to resolve, as 16 the ALJ found the opinions of Dr. Metoyer and the state agency reviewers equally 17 persuasive, and also found Dr. Metoyer’s entire opinion persuasive. ECF No. 18 at 18 10-11. This is not clear from the ALJ’s findings, as he found there was not 19 conflicting opinion evidence, yet also suggested Dr. Metoyer’s opinion was in 20 conflict with the state agency psychologists. While Defendant offers an analysis of 21 the evidence, including that the ALJ found Dr. Metoyer’s entire opinion persuasive 22 for reasons including that it was consistent with the opinion of the state agency 23 psychologists, ECF No. 18 at 11, ALJ did not offer such analysis, and thus the 24 Court will not consider the post hoc rationalization. See Orn v. Astrue, 495 F.3d 25 625, 630 (9th Cir. 2007) (The Court will “review only the reasons provided by the 26 ALJ in the disability determination and may not affirm the ALJ on a ground upon 27 which he did not rely.”). 28 1 The ALJ erred in failing to analyze the persuasiveness of the medical 2 opinion evidence under the factors required by the regulations, and his findings 3 concerning the medical opinions of Dr. Metoyer, Dr. Comrie, and Dr. Regets are 4 not supported by substantial evidence. Upon remand the ALJ is instructed to 5 reconsider all medical opinion evidence under the factors required by the 6 regulations, and to incorporate the opinions into the RFC or give reasons supported 7 by substantial evidence to reject them. 8 B. Step Two 9 Plaintiff contends the ALJ erred at step two by not properly assessing 10 Plaintiff’s migraines or hand limitations. ECF No. 16 at 17. At step two of the 11 sequential evaluation process, the ALJ must determine whether the claimant has 12 any severe medically determinable impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 13 416.920(a)(4)(ii). A medically determinable impairment “must result from 14 anatomical, physiological, or psychological abnormalities that can be shown by 15 medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. §§ 16 404.1521, 416.921. An impairment is “not severe” if it does not “significantly 17 limit” the ability to conduct “basic work activities.” 20 C.F.R. §§ 404.1522, 18 416.922(a). “An impairment or combination of impairments can be found not 19 severe only if the evidence establishes a slight abnormality that has no more than a 20 minimal effect on an individual’s ability to work.” Smolen v. Chater, 80 F.3d 1273, 21 1290 (9th Cir. 1996) (internal quotation marks omitted). The claimant bears the 22 burden of demonstrating that an impairment is medically determinable and severe. 23 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). 24 Step two is a de minimus screening device to dispose of groundless claims. 25 Smolen, 80 F.3d at 1290. “Thus, applying our normal standard of review to the 26 requirements of step two, [the Court] must determine whether the ALJ had 27 substantial evidence to find that the medical evidence clearly established that 28 [Plaintiff] did not have a medically severe impairment or combination of 1 impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). SSR 19-4p, 2 Evaluating Cases Involving Primary Headache Disorders, effective at the time of 3 the ALJ’s decision, provides guidance on how to evaluate primary headache 4 disorders. SSR 19-4p, 2019 WL 4169635 (Aug. 26, 2019). 5 Here the ALJ found “while [Plaintiff] alleges headaches/migraines, I do not 6 consider this condition to be a separate medically determinable impairment given 7 the lack of objective evidence.” Tr. 21. Plaintiff contends the ALJ harmfully erred 8 by discounting Plaintiff’s migraines “given the lack of objective evidence” because 9 under the Agency’s own guidance found in SSR 19-4p, headaches may be assessed 10 based on a diagnosis and treatment records showing response to treatment or lack 11 thereof, both of which are in this record. ECF No. 16 at 18; see SSR 19-4p. 12 Defendant argues substantial evidence supports the ALJ’s step two finding because 13 step two was decided in Plaintiff’s favor, and the ALJ discussed all of Plaintiff’s 14 alleged limitations in assessing her RFC, including her complaints of headaches. 15 ECF No. 18 at 12-13. 16 The ALJ found headaches were not a medically determinable impairment 17 due to a lack of objective evidence. Tr. 25. SSR 19-4p explains that while an ALJ 18 may not establish the existence of an MDI based only on a diagnosis or a statement 19 of symptoms, a headache disorder may be assessed on a combination of findings 20 including a headache disorder diagnosis, observation of a typical headache event, 21 remarkable or unremarkable findings on laboratory tests, and response to 22 treatment. SSR 19-4p. Here, treatment records show diagnosis and treatment for 23 chronic headaches, including migraines and/or muscle tension headaches with 24 associated nausea, photophobia and sound sensitivity. See e.g., Tr. 487, 541-42, 25 549, 567, 695-96. In July 2017, for example, providers documented increased 26 frequency of headaches, noting she reported about three a week that did not 27 respond to Imitrex, along with muscle tension headaches on the other days; her 28 provider noted nausea and light and sound sensitivity from headaches. Tr. 541. 1 Upon physical exam, her provider also observed tenderness over her entire 2 posterior neck and bilateral cervical spine. Tr. 542. While the ALJ concluded her 3 headaches “were not as severe or as frequent as she portrayed them” because she 4 did not take medication for headaches, Tr. 25, records show treatment has included 5 medications such as sumatriptan (Imitrex), nortriptyline, and daily Excedrin for 6 headaches. See e.g., Tr. 446, 541, 546, 551. Additionally, while the ALJ 7 discounted the severity of her headaches because “medication was helpful for 8 improving her headaches after she had sought treatment for headaches in May 9 2019,” this conclusion is not supported by the record, which shows the medication 10 the ALJ refers to is an intravenous “migraine cocktail” administered in the 11 emergency room at one visit in May 2019. Tr. 695-97. There is no evidence she 12 regularly received such treatment, and in 2020 she testified she had headaches 13 about three times a week that were not controlled by Imitrex. Tr. 55-57. 14 While the ALJ found she reported “severe daily headaches to the agency” 15 and that this was inconsistent with reports to providers, the headache questionnaire 16 she returned to the agency in August 2018 shows she reported “almost daily” 17 headaches, noting the dates of her last three headaches as August 23rd, 25th and 18 August 27th. Tr. 445-46. This is consistent with her report to the consultative 19 examiner of headaches a couple times a week in September 2018, along with her 20 report in 2017 that she experienced migraines three times a week and muscle 21 tension headaches on other days. Tr. 541, 567. An ALJ must consider all of the 22 relevant evidence in the record and may not point to only those portions of the 23 records that bolster his findings. See, e.g., Holohan v Massanari, 246 F.3d 1195, 24 1207-08 (9th Cir. 2001) (holding that an ALJ cannot selectively rely on some 25 entries in plaintiff’s records while ignoring others). The ALJ’s finding that 26 Plaintiff’s headaches were not a medically determinable impairment is not 27 supported by substantial evidence. 28 1 Defendant argues any error is harmless because the step was resolved in 2 Plaintiff’s favor. ECF No. 18 at 13. Plaintiff points out, however, that in finding 3 headaches were not a medically determinable impairment, as opposed to severe or 4 nonsevere, the ALJ did not consider headaches in the later steps of the sequential 5 analysis, including step three under the neurological disorder listings or the RFC. 6 ECF No. 16 at 18-19; see also SSR 96-8p. As the claim is being remanded to 7 reconsider the medical opinion evidence, discussed supra, the Court declines to 8 engage in harmless error analysis here. 9 Plaintiff also contends the ALJ erred by failing to address Plaintiff’s hand 10 impairments at step two. ECF No. 16 at 19-20. As the case is being remanded to 11 readdress the medical opinion evidence and Plaintiff’s headaches, the ALJ is 12 instructed on remand to reconsider the full medical record with the assistance of 13 medical expert testimony, and to reassess Plaintiff’s medically determinable 14 impairments and whether they are severe at step two. 15 C. Plaintiff’s Subjective Statements 16 Plaintiff contends the ALJ erred by improperly assessing Plaintiff’s 17 subjective complaints. ECF No. 16 at 4-15. It is the province of the ALJ to make 18 determinations regarding a claimant’s subjective statements. Andrews, 53 F.3d at 19 1039. However, the ALJ’s findings must be supported by specific, cogent reasons. 20 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant 21 produces medical evidence of an underlying medical impairment, the ALJ may not 22 discredit testimony as to the severity of an impairment merely because it is 23 unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 24 1998). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting 25 the claimant’s testimony must be “specific, clear and convincing.” Smolen, 80 26 F.3d at 1281; Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 27 findings are insufficient: rather the ALJ must identify what testimony is not 28 1 credible and what evidence undermines the claimant’s complaints.” Lester, 81 2 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 3 The ALJ concluded Plaintiff’s statements concerning the intensity, 4 persistence and limiting effects of her symptoms were not consistent with the 5 medical evidence and other evidence in the record. Tr. 23. The ALJ’s evaluation 6 of Plaintiff’s symptom claims and the resulting limitations largely relies on the 7 ALJ’s assessment of the medical evidence. Having determined a remand is 8 necessary to reassess the medical opinion evidence and step two findings, any 9 reevaluation must necessarily entail a reassessment of Plaintiff’s subjective 10 symptom claims. Thus, the Court need not reach this issue and on remand the ALJ 11 must also carefully reevaluate Plaintiff’s symptom claims in the context of the 12 entire record. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because 13 we remand the case to the ALJ for the reasons stated, we decline to reach 14 [plaintiff’s] alternative ground for remand.”). 15 D. RFC and Step Five findings 16 Plaintiff also argues the RFC was consistent with disability and that the ALJ 17 failed to meet his step five burden. ECF No. 16 at 3-4, 20-21. As this case is 18 being remanded for the ALJ to reassess the medical opinion evidence and the step 19 two findings, the ALJ is instructed to perform the sequential analysis anew, 20 including reconsidering Plaintiff’s RFC as well as the step five findings. 21 CONCLUSION 22 Plaintiff argues the decision should be reversed and remanded for the 23 payment of benefits. The Court has the discretion to remand the case for additional 24 evidence and findings or to award benefits. Smolen, 80 F.3d at 1292. The Court 25 may award benefits if the record has been fully developed and further 26 administrative proceedings would serve no useful purpose. Id. Remand is 27 appropriate when additional administrative proceedings could remedy defects. 28 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court finds that further development, including medical expert testimony, is necessary for a proper determination. 3 The ALJ’s decision is not supported by substantial evidence and not free of 4|| harmful error. On remand, the ALJ shall reevaluate the medical evidence of 5|| record, perform the sequential analysis anew making findings on each of the five 6|| steps of the sequential evaluation process, reassess the medical opinion evidence 7\| and plaintiff's subjective complaints with the assistance of medical expert 8 || testimony, and take into consideration any other evidence or testimony relevant to 9|| Plaintiff's disability claim. Nothing herein should be read as a suggestion that any 10]| particular decision or decisions on remand would be more appropriate than 11]| another. 12 Accordingly, IT IS ORDERED: 13 1. Plaintiff's Motion for Summary Judgment, ECF No. 16, is GRANTED. 15 2. Defendant’s Motion for Summary Judgment, ECF No. 18, is 16|| DENIED. 17 3. The matter is REMANDED to the Commissioner for additional 18 || proceedings consistent with this Order. 19 4. An application for attorney fees may be filed by separate motion. 20 The District Court Executive is directed to file this Order and provide a copy 21]| to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 23 DATED January 12, 2023.

: _— Clee Clem oy aids ALEXANDER C. EKSTROM □ UNITED STATES MAGISTRATE JUDGE