(SS) Blancett v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: May 3, 2021
• Docket: 1:20-cv-00253
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 DONNA J. BLANCETT, Case No. 1:20-cv-00253-SKO 10 Plaintiff,

11 v. ORDER ON PLAINTIFF’S SOCIAL 12 SECURITY COMPLAINT ANDREW SAUL, 13 Commissioner of Social Security, 14 Defendant. (Doc. 1) _____________________________________/ 15

16 17 I. INTRODUCTION 18 19 On February 16, 2020, Plaintiff Donna J. Blancett (“Plaintiff”) filed a complaint under 20 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social 21 Security (the “Commissioner” or “Defendant”) denying her application for disability insurance 22 benefits (“DIB”) under Title II of the Social Security Act (the “Act”). (Doc. 1.) The matter is 23 currently before the Court on the parties’ briefs, which were submitted, without oral argument, 24 to the Honorable Sheila K. Oberto, United States Magistrate Judge.1 25 II. BACKGROUND 26 A. Procedural History 27 On August 24, 2016, Plaintiff protectively filed a claim for DIB payments, alleging she 28 1 became disabled on October 1, 2014, due to fibromyalgia, Hashimoto’s thyroiditis, obesity, 2 irritable bowel syndrome, arthritis, back and knee pain, pulmonary obstruction, brain lesion, 3 double vision, anxiety, depression, lack of concentration, and lack of comprehension. 4 (Administrative Record (“AR”) 24–25, 68, 69, 84, 85, 193, 236, 245.) Plaintiff was born on 5 September 23, 1957, and was 57 years old on the alleged disability onset date. (AR 68, 84, 156, 6 236, 245.) Plaintiff has an associate’s degree and worked as an eligibility worker with Stanislaus 7 County from January 1989 to October 2014. (AR 31, 41, 60, 204.) 8 The Commissioner denied Plaintiff’s application for benefits initially on March 1, 2017, 9 and again on reconsideration on May 30, 2017. (AR 101–106, 108–13.) Consequently, 10 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 114–130.) On 11 July 11, 2018, Plaintiff appeared with counsel and testified before an ALJ as to her alleged 12 disabling conditions. (AR 39–59.) A vocational expert (“VE”) also testified at the hearing. 13 (AR 59–66.) Plaintiff testified that she has constant pain due to fibromyalgia and arthritis in her 14 knees, back, shoulders, and hands. (AR 44.) She reported that she can walk about 30 minutes 15 on a treadmill but only 20 minutes outside. (AR 46.) Plaintiff uses assistive devices to avoid 16 falling and can lift 10 to 20 pounds. (AR 46–47, 50.) She reported that she tends to drop things 17 due to her arthritis. (AR 50–51.) Plaintiff also testified that she suffers from depression and 18 frustration, which cause “crying fits” that can last all day, causing her to cancel plans. (AR 52– 19 53.) 20 On December 12, 2018, the ALJ issued a decision finding Plaintiff not disabled, as 21 defined by the Act. (AR 22–31.) Plaintiff sought review of the ALJ’s decision before the 22 Appeals Council. Along with her request for review, Plaintiff submitted post-decision evidence 23 to the Appeals Council consisting of two medical source opinions dated April 9, 2019, by Jack 24 Collins, M.D. (AR 2, 12–16.) 25 On June 5, 2018, the Appeals Council denied the request for review (AR 1–6), rendering 26 the ALJ’s decision the final decision of the Commissioner. 20 C.F.R. § 404.981. The “Notice 27 of Appeals Council Action” denying review sets forth the Appeals Council’s finding that Dr. 28 Collins’ opinions do “not show a reasonable probability that it would change the outcome of the 1 decision” and indicates that the Council “did not consider and exhibit this evidence.” (AR 2.) 2 B. The ALJ’s Decision 3 The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 404.1520. 4 (AR 24–31.) The ALJ decided that Plaintiff had not engaged in substantial gainful activity from 5 the alleged onset date of October 1, 2014, (step one). (AR 24.) The ALJ found that Plaintiff had 6 the following severe impairments: obesity, fibromyalgia, Hashimoto’s thyroiditis, generalized 7 osteoarthritis, osteoarthritis at the first carpometacarpal joint of the left hand, osteoarthritis of the 8 knees and shoulders, varicose veins at the bilateral lower extremities, atherosclerosis of the native 9 arteries of the lower extremities, and spondylosis of the lumbar spine with facet arthropathy (step 10 two). (AR 24–27.) However, Plaintiff did not have an impairment or combination of 11 impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 12 Subpart P, Appendix 1 (“the Listings”) (step three). (AR 27.) The ALJ then assessed Plaintiff’s 13 residual functional capacity (“RFC”)2 and applied the RFC assessment at step four. See 20 14 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, we assess your residual 15 functional capacity . . . . We use this residual functional capacity assessment at both step four and 16 step five when we evaluate your claim at these steps.”). 17 The ALJ determined that Plaintiff retained the RFC: 18 to perform sedentary work as defined in 20 CFR [§] 404.1567(a) except she must alternate positions as needed but will remain on task at the 19 workstation. She must use a cane as needed for ambulation and balance. She is never able to climb ladders, ropes, or scaffolds. [Plaintiff] is able to 20 occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and 21 stairs. She is limited to frequent bilateral fingering. She must avoid all exposure to unprotected heights, dangerous machinery, and other hazards. 22 23 24 25 2 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a 26 work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. Social Security Ruling 96-8p. The RFC assessment considers only functional limitations and restrictions that result 27 from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay 28 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable 1 (AR 28.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 2 expected to cause the alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as “not 3 entirely consistent with the medical evidence and other evidence in the record.” (AR 29.) 4 On the basis of this RFC assessment, the ALJ found that Plaintiff was able to perform her 5 past relevant work as an eligibility worker (step four). (AR 31.) In making this determination, 6 the ALJ posed a series of hypothetical questions to the VE based upon Plaintiff’s RFC. (AR 60– 7 63.) In response, the VE testified that a person with the specified RFC could perform Plaintiff’s 8 past work. (AR 60–63.) When posed with a hypothetical that included an additional limitation to 9 Plaintiff’s RFC of being “regularly off task at least 20% of the day” and “regularly absent at least 10 two days per month,” the VE testified that there was no work such a person could perform. (AR 11 63–64.) 12 III. LEGAL STANDARD 13 A. Applicable Law 14 An individual is considered “disabled” for purposes of disability benefits if he or she is 15 unable “to engage in any substantial gainful activity by reason of any medically determinable 16 physical or mental impairment which can be expected to result in death or which has lasted or can 17 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 18 However, “[a]n individual shall be determined to be under a disability only if [her] physical or 19 mental impairment or impairments are of such severity that [s]he is not only unable to do [her] 20 previous work but cannot, considering [her] age, education, and work experience, engage in any 21 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 22 “The Social Security Regulations set out a five-step sequential process for determining 23 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 24 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has 25 provided the following description of the sequential evaluation analysis: 26 In step one, the ALJ determines whether a claimant is currently engaged in 27 substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe 28 impairment or combination of impairments. If not, the claimant is not disabled. If 1 combination of impairments meets or equals a listed impairment under 20 C.F.R. 2 pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable 3 of performing her past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . 4 . to perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 5 6 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 7 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 8 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 9 “The claimant carries the initial burden of proving a disability in steps one through four of 10 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 11 1989)). “However, if a claimant establishes an inability to continue her past work, the burden 12 shifts to the Commissioner in step five to show that the claimant can perform other substantial 13 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 14 B. Scope of Review 15 “This court may set aside the Commissioner’s denial of disability insurance benefits 16 [only] when the ALJ’s findings are based on legal error or are not supported by substantial 17 evidence in the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial 18 evidence is defined as being more than a mere scintilla, but less than a preponderance.” Edlund 19 v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put 20 another way, substantial evidence is such relevant evidence as a reasonable mind might accept as 21 adequate to support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 22 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 23 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be 24 disturbed only if that decision is not supported by substantial evidence or it is based upon legal 25 error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will 26 uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational 27 interpretation.” Id.; see, e.g., Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the 28 evidence is susceptible to more than one rational interpretation, the court may not substitute its 1 judgment for that of the Commissioner.” (citations omitted)). 2 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for 3 that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court 4 must determine whether the Commissioner applied the proper legal standards and whether 5 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 6 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot 7 be affirmed simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d 8 at 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must 9 ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts 10 from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th 11 Cir. 1993)). 12 Finally, courts “may not reverse an ALJ’s decision on account of an error that is 13 harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. 14 Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear 15 from the record that ‘the ALJ’s error was inconsequential to the ultimate nondisability 16 determination.’” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Circ. 2008) (quoting Robbins, 17 466 F.3d at 885). “[T]he burden of showing that an error is harmful normally falls upon the party 18 attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations 19 omitted). 20 IV. DISCUSSION 21 A. The ALJ’s Decision is Not Supported by Substantial Evidence 22 1. Dr. Collins’ Post-Decision Opinions Are Part of the Record 23 Plaintiff challenges the ALJ’s decision on the basis, inter alia, that it fails to consider 24 Plaintiff’s mental and physical impairments in formulating the RFC, particularly in view of Dr. 25 Collins’ opinions, which were submitted for the first time to the Appeals Council. (See Docs. 19 26 at 27–28; Doc. 25 at 5–6.) Where the Appeals Council considers additional evidence in denying 27 review of the ALJ’s decision, that evidence is deemed to be part of the administrative record that 28 a court must evaluate when reviewing the Commissioner’s final decision for substantial evidence. 1 Brewes v. Comm’r of Soc. Sec. Admin, 682 F.3d 1157, 1163 (9th Cir. 2012). 2 As set forth above, when Plaintiff requested Appeals Council review of the ALJ’s 3 decision, she submitted additional evidence: two medical source opinions of Dr. Collins dated 4 April 9, 2019. (AR 2, 12–16.) The Appeals Council found that “this evidence does not show a 5 reasonable probability that it would change the outcome of the decision. We did not consider and 6 exhibit this evidence.” (AR 2.) The Court observes that the Appeals Council’s statement is 7 ambiguous, i.e., it is not clear how the Appeals Council determined that the new evidence would 8 not impact the outcome while simultaneously not considering it. See, e.g., Deliny S. v. Berryhill, 9 No. CV 17-06328-DFM, 2019 WL 1259410, at *1 (C.D. Cal. Mar. 19, 2019) (describing Appeals 10 Council’s statement as “ambiguous” but assuming it considered the new evidence); Mayeda- 11 Williams v. Comm’r of Soc. Sec. Admin., No. 18-0009-HRH, 2019 WL 157918, at *5 (D. Ak. Jan. 12 10, 2019) (same). 13 Like Deliny S. and Mayeda-Williams, the Court finds that the most plausible interpretation 14 of the Appeals Council’s explanation is that the Council did in fact consider Dr. Collins’ 15 opinions, but determined that they would not change the outcome of Plaintiff’s case.3 See id. See 16 also, e.g., Patrick K. G. v. Saul, Case No. SA CV 18-01156-RAO, 2019 WL 2613456, at *9 17 (C.D. Cal. June 26, 2019) (“Although the Appeals Council stated that it ‘did not consider’ 18 Plaintiff’s new evidence, it appears that the Appeals Council necessarily did consider the 19 evidence in order to determine that it ‘does not show a reasonable probability that it would 20 change the outcome of the decision.’”); Truong v. Berryhill, No. 17-cv-02179-BEN (RNB), 2018 21 WL 6198279, at *3 (S.D. Cal. Nov. 28, 2018) (Appeals Council’s statement is a “non sequitur,” 22 as the Council “had to consider the additional evidence to find that it did ‘not show a reasonable 23 probability that it would change the outcome of the decision.’”); Linnehan v. Berryhill, No. 17- 24 CV-04146-JSC, 2018 WL 6267846, at *8 (N.D. Cal. July 31, 2018) (Appeals Council “cannot 25 consider the evidence to conclude that it ‘does not show a reasonable probability that it would 26

27 3 Moreover, in considering Dr. Collins’ opinions, the Appeals Council must also have found good cause under 20 C.F.R. § 404.970(b) for their submission. See id. (Appeals Council will only consider additional evidence that is 28 submitted for the first time to the Council if a claimant shows good cause for not timely submitting the evidence to 1 change the outcome of the decision’ and then exclude the evidence from the record based on the 2 illogical conclusion that ‘[w]e did not consider and exhibit this evidence.’”). The Court therefore 3 considers Dr. Collins’ opinions to determine whether, in light of the record as a whole, the ALJ’s 4 decision was supported by substantial evidence.4 Brewes, 682 F.3d at 1163. See also Taylor v. 5 Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011) (courts may consider evidence 6 presented for the first time to the Appeals Council “to determine whether, in light of the record as 7 a whole, the ALJ’s decision was supported by substantial evidence and was free of legal error”). 8 2. The Rejection of Dr. Collins’ Opinions Was Erroneous 9 Plaintiff alleges, and the record reflects, that Dr. Collins was Plaintiff’s treating physician 10 beginning in October 2014. (AR 416–448, 479–483, 566–569.) On April 9, 2019, Dr. Collins 11 completed two medical source opinions: one titled “Questionnaire: Physical with Emphasis on 12 Hand Impairments” (the “Physical Statement”) and the other, titled “Medical Source Statement, 13 Psychiatric” (the “Psychiatric Statement”). (AR 12–16.) In the Physical Statement, Dr. Collins 14 opined that Plaintiff’s impairments precluded her from performing full-time work at any 15 exertional level, including the sedentary level. (AR 16.) He noted Plaintiff’s primary 16 impairments were fibromyalgia, osteoarthritis, depression, and fatigue caused by fibromyalgia 17 and depression. (AR 16.) The objective findings supporting Dr. Collins’ opinion included x-rays 18 of Plaintiff’s lumbar spine, right knee and hands. (AR 16.) He opined Plaintiff could sit for 15 to 19 20 minutes at a time, stand for five minutes, and walk for 10 to 15 minutes. (AR 16.) Dr. Collins 20 found that Plaintiff must lie down two to three times a day for 30 to 60 minutes due to fatigue and 21 pain, and the osteoarthritis in Plaintiff’s hands makes typing, writing, and doing paperwork 22 difficult. (AR 16.) He noted that Plaintiff had anxiety and depression that caused difficulty 23 dealing with work situations. (AR 16.) Dr. Collins opined Plaintiff could lift five pounds 24 frequently and 10 pounds occasionally; reach/grasp, handle, and feel, each for 5–10 minutes at a 25 time; could not push or pull; and could perform fine finger manipulation for five minutes at a 26 time. (AR 16.) 27 4 The Court is not reviewing whether the Appeals Council improperly denied Plaintiff’s request for review. Rather, 28 the Court reviews the opinions in the new evidence that was presented to the Appeals Council in its overall review of 1 Dr. Collins’ Psychiatric Statement reported his finding that Plaintiff has marked 2 impairment (defined as “considerable impact throughout the workday”) in the following areas: 3 the ability to maintain concentration and attention (for simple and/or complex tasking); the ability 4 to understand, remember, and carry out simple one-or-two job instructions; the ability to 5 understand, remember, and carry out an extensive variety of technical and/or complex job 6 instructions; and the ability to receive and carry out instructions from supervisors. (AR 13.) Dr. 7 Collins opined that Plaintiff has extreme impairment (defined as “almost constant impact on work 8 or total limitation”) in the ability to withstand the stress and pressures associated with an eight- 9 hour work day and day-to-day work activity; in the ability to deal with the public; and the ability 10 to relate and interact with co-workers. (AR 13.) He found that Plaintiff would likely miss four to 11 10 days of work per month. (AR 13.) 12 Unfortunately, the Appeals Council provided no reasoning whatsoever in support of its 13 conclusion that Dr. Collins’ opinions do “not show a reasonable probability that it would change 14 the outcome of the decision.” The absence of reasoning is particularly problematic because Dr. 15 Collins is Plaintiff’s long-time treating physician, who opines that her limitations would render 16 her unable to work. These opinions should presumptively have been afforded great weight. See 17 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (“a treating 18 physician’s opinion is generally afforded the greatest weight in disability cases”); 20 C.F.R. § 19 404.1527(c)(2)(i) (“[T]he longer a treating source has treated you and the more times you have 20 been seen by a treating source, the more weight we will give to the source’s medical opinion.”). 21 To reject such an opinion, an ALJ must, at the very least, have provided a “specific and 22 legitimate” reason supported by substantial evidence. Lester v. Chater, 81 F.3d 821, 830 (9th 23 Cir. 1995). 24 Here, the ALJ provided no reasons for rejecting Dr. Collins’ opinions (an understandable 25 omission, given that the opinions were not before her) and the Appeals Council took no steps to 26 fill this explanatory void. The record does not contain any reasoned explanation for rejecting Dr. 27 28 1 Collins’ opinions, let alone specific and legitimate reasons supported by substantial evidence.5 2 That constitutes error. See McLaughlin v. Saul, No. 1:18-CV-00967-SKO, 2019 WL 3202806, at 3 *6 (E.D. Cal. July 16, 2019); Reyes v. Comm’r of Soc. Sec. Admin., No. CV-17-08192-PCT- 4 SMB, 2019 WL 2098755, at *4 (D. Ariz. May 14, 2019); Williams v. Berryhill, Case No. C17- 5 5885 JCC-BAT, 2018 WL 6737511, at *5 (W.D. Wash. Apr. 19, 2018). 6 3. The Error is Not Harmless 7 Harmless error review applies when a treating source’s medical opinion is not considered 8 in an ALJ’s decision. Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015). Errors are harmless 9 when a reviewing court “can confidently conclude that no reasonable ALJ, when fully crediting 10 the testimony, could have reached a different disability determination.” Stout v. Comm’r, Social 11 Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). Here, the ALJ concluded at step two that 12 Plaintiff’s anxiety and depression were not severe. (AR 25–26.) In so doing, she assigned only 13 “partial weight” to the opinion of consultative examiner Phillip M. Cushman, Ph.D., that Plaintiff 14 had more than mild limitations in her mental work-related abilities, finding the opinion “not 15 supported by the medical record.” (AR 25.) Yet Dr. Cushman’s opinion, which noted that 16 Plaintiff would have “great difficulties” with regular attendance and consistent participation (AR 17 472), is consistent with Dr. Collins’ Psychiatric Statement indicating Plaintiff’s marked 18 impairment in her ability to maintain concentration and attention, and the likelihood that Plaintiff 19 would be absent from work four to 10 days a month (AR 13). Dr. Collins’ Psychiatric Statement 20 casts doubt upon the ALJ’s reasoning for discounting Dr. Cushman’s opinion and her finding 21 regarding the severity (or lack thereof) of Plaintiff’s mental impairments at step two. The Court 22 therefore cannot “confidently conclude” that “no reasonable ALJ” could have reached a different 23 disability determination. See Marsh, 792 F.3d at 1173 (ALJ’s failure to consider treating doctor’s 24 medical opinion, which described the plaintiff as “pretty much nonfunctional,” was not 25

26 5 The Commissioner belatedly attempts to supply such reasons in its response brief, identifying various reasons why the ALJ and/or Appeals Council could have deemed the late-submitted evidence unpersuasive. (See Doc. 24 at 13.) 27 But those explanations are not properly before the Court. As the Ninth Circuit has emphasized, “[l]ong-standing principles of administrative law require us to review the ALJ’s decision based on the reasoning and factual findings 28 offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been 1 harmless). Moreover, because the ALJ did not include or discuss any functional limitations 2 related to Plaintiff’s mental impairments in determining the RFC, the error was not harmless.6 3 Cf. Inskeep v. Colvin, No. 3:15-cv-00759-BR, 2016 WL 3509395, at *4 (D. Or. June 27, 2016) 4 (concluding that the ALJ erred at step two when he found Plaintiff’s mental impairments are 5 nonsevere and finding that error is not harmless because the ALJ did not include any mental 6 limitations in his assessment of Plaintiff’s RFC.) (citing Lewis, 498 F.3d at 910). 7 The same goes for Dr. Collins’ Physical Statement. The ALJ declined to wholly adopt the 8 opinions of the non-examining State agency physicians and ultimately concluded that Plaintiff 9 had the RFC to perform a reduced range of sedentary work because the record did “not support 10 more than moderate objective findings and she appears to be functioning fairly well with 11 appropriate accommodations and assistive devices.” (AR 29.) The Physical Statement appears to 12 belie this conclusion. Dr. Collins based his opinion on x-ray results demonstrating the existence 13 of osteoarthritis in Plaintiff’s hands (as well as in her lumbar spine and right knee), causing more 14 than a moderate limitation in her manipulative abilities. (AR 16.) Dr. Collins’ Physical 15 Statement also suggests that Plaintiff is not functioning as well as the ALJ describes, opining that 16 Plaintiff must lie down two to three times per day for 30 to 60 minutes due to fatigue and pain. 17 (AR 16.) Given the extra weight entitled to treating physicians, the Court cannot conclude “no 18 reasonable ALJ” could have reached a different conclusion with respect to Plaintiff’s RFC.7 19 Accordingly, the error was not harmless. 20 B. Remand for Further Proceedings is Appropriate 21 It is for the ALJ to determine whether a plaintiff has severe impairments and, ultimately, 22 whether she is disabled under the Act. See Marsh, 792 F.3d at 1173 (“[T]he decision on 23 disability rests with the ALJ and the Commissioner of the Social Security Administration in the 24 first instance, not with a district court”). “Remand for further administrative proceedings is 25 appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 26

27 6 The VE testified in fact that the addition to Plaintiff’s RFC of a limitation of being off task at least 20% of the workday and being absent two days per month would preclude all work. (AR 63–64.) 28 7 This is particularly true where, as Plaintiff points out, she might otherwise be subject to section 201.02 of the 1 593 (9th Cir. 2004). The ALJ, not the Court, is responsible for assessing the medical evidence 2 and resolving any conflicts or ambiguities in the record. See Treichler v. Comm’r of Soc. Sec. 3 Admin., 775 F.3d 1090, 1098 (9th Cir. 2014); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 4 1155, 1164 (9th Cir. 2008). 5 Here, the ALJ did not have the opportunity to consider, in the first instance, Dr. Collins’ 6 Psychiatric Statement and his Physical Statement. Having found these opinions properly part of 7 the record, the ALJ must evaluate them to determine its impact on the severity of Plaintiff’s 8 impairments, her RFC, and the ultimate question of Plaintiff’s disability. Remand for further 9 proceedings—and not, as Plaintiff asserts, remand for benefits (see Doc. 19 at 30)—is therefore 10 the appropriate remedy. See Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009) (remanding to 11 allow ALJ to assess results of psychological testing, considered by the Appeals Council, and how 12 claimant’s limitations affect her RFC); McLaughlin, 2019 WL 3202806, at *6; Billie-Jo M. v. 13 Saul, No. 6:19-CV-00092-SB, 2020 WL 2521754, at *10 (D. Or. May 18, 2020) (“Plaintiff 14 submitted new, post-decision medical evidence that the ALJ has not had an opportunity to 15 evaluate. Under these circumstances, a remand to the agency for further proceedings to fully 16 develop the record is the appropriate remedy.”) (internal quotation marks omitted). 17 C. The Court Declines to Determine Plaintiff’s Remaining Assertions of Error 18 As the Court finds that remand is appropriate for the ALJ to consider Plaintiff’s post- 19 decision evidence, the Court does not reach Plaintiff’s additional assertions of error regarding the 20 ALJ’s treatment of Dr. Cushman’s opinion at step two and Plaintiff’s credibility, both of which 21 will need be reevaluated in light of the additional evidence.8 See Hiler v. Astrue, 687 F.3d 1208, 22 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline 23 to reach [plaintiff’s] alternative ground for remand.”); see also Rendon G. v. Berryhill, No. 24 EDCV 18-0592-JPR, 2019 WL 2006688, at *8 (C.D. Cal. May 7, 2019); Harris v. Colvin, No. 25 13-cv-05865 RBL, 2014 WL 4092256, at *4 (W.D. Wash. Aug. 11, 2014); Augustine ex rel. 26 Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not 27

28 8 The Court does, however, determine that these alleged errors do not warrant reversal with the directive for payment 1 address the other claims plaintiff raises, none of which would provide plaintiff with any further 2 relief than granted, and all of which can be addressed on remand.”). 3 V. CONCLUSION AND ORDER 4 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 5 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for 6 further proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter 7 judgment in favor of Plaintiff Donna J. Blancett and against Defendant Andrew Saul, 8 Commissioner of Social Security. 9 IT IS SO ORDERED. 10

Sheila K. Oberto 11 Dated: May 3, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 12

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