(SS) Flores v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: January 31, 2020
• Docket: 1:18-cv-01523
• Status: Unknown

Opinion

2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 TERRIE JO FLORES, Case No. 1:18-cv-01523-SKO 11 Plaintiff,

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

17 _____________________________________/ 18

19 20 I. INTRODUCTION 21 On November 1, 2018, Plaintiff Terrie Jo Flores (“Plaintiff”) filed a complaint under 42 22 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security 23 (the “Commissioner” or “Defendant”) denying her application for disability insurance benefits 24 (“DIB”) under the Social Security Act (the “Act”). (Doc. 1.) The matter is currently before the 25 Court on the parties’ briefs, which were submitted, without oral argument, to the Honorable Sheila 26 1 On June 17, 2019, Andrew Saul became the Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/agency/commissioner.html (last visited by the court on September 12, 2019). He is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 28 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper 1 K. Oberto, United States Magistrate Judge.2 2 II. BACKGROUND 3 On February 24, 2015, Plaintiff protectively applied for DIB, alleging disability beginning 4 on October 15, 2009, due to lupus, fibromyalgia, chronic pain, depression, herniated disc at L1– 5 L3, tendinitis, anxiety, and high blood pressure (Administrative Record (“AR”) 23, 74, 82, 97, 227, 6 241.) Plaintiff was born on March 7, 1965 and was 44 years old on the alleged disability onset 7 date. (AR 30, 74, 97, 201, 238, 274, 293). Plaintiff has a high school education and can 8 communicate in English. (AR 30, 226, 228, 240, 242, 276.) 9 A. Relevant Medical Evidence3 10 On September 16, 2015, licensed psychologist Lanita Barnes, Psy.D., performed a 11 comprehensive psychiatric examination of Plaintiff. (AR 905–10.) She observed Plaintiff to be 12 well-dressed and in the company of a chihuahua, whom she stated was a service dog. (AR 905.) 13 Plaintiff appeared agitated but was “superficially friendly and cooperative” throughout the 14 evaluation. (AR 905.) She complained of symptoms of depression since 2009 and attempted 15 suicide on two occasions, resulting in a hospitalization. (AR 905–06.) Plaintiff reported that she 16 does nothing during the day and to care for herself. (AR 907.) She stated that she does not engage 17 in household chores or cooking. (AR 907.) Plaintiff reported that she attends church “sometimes,” 18 accesses the internet daily, and drives her car “when necessary.” (AR 907.) 19 Upon mental examination, Dr. Banes found Plaintiff “somewhat preoccupied” with her 20 physical and mental condition and “presented with some circumstantiality as well.” (AR 907.) 21 Plaintiff described having suicidal ideation and thoughts but stated that she didn’t think she would 22 “do it.” (AR 908.) Plaintiff was “slightly agitated” with anger and some tearfulness and “appeared 23 with frustration regarding her mental status and physical condition.” (AR 908.) She reported her 24 moods were frustrated and “sometimes depressed,” and presented with mild anxiety, anger, and 25 agitation. (AR 908.) 26 Dr. Barnes found Plaintiff had good concentration and focus and she demonstrated both 27 2 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 6, 7.) 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 abstraction and the ability to generalize concepts in her thinking. (AR 909.) Plaintiff’s judgment 2 and insight were both good, although she was “preoccupied with her circumstances.” (AR 909.) 3 Dr. Barnes assessed Plaintiff with a depressive disorder due to another medical condition, with 4 depressive features, and an unspecified personality disorder. (AR 909.) 5 According to Dr. Barnes, Plaintiff appeared at times to “over-endorse symptoms” and 6 reverted every subject that was presented to a description of her disabling pain and injuries. (AR 7 909.) She noted that “[d]ue to the alignment of her mood symptoms to her medical condition, she 8 is not expected to significantly improve over the next 12 months.” (AR 909.) 9 Dr. Barnes opined that Plaintiff is mildly impaired in the following ways: the ability to 10 perform detailed and complex tasks; the ability to perform work activities on a consistent basis 11 without special or additional instruction; and the ability to maintain regular attendance in the 12 workplace. (AR 910.) Plaintiff is moderately impaired in the following: the ability to accept 13 instruction from supervisors or others; the ability to interact with coworkers and/or the public; and 14 the ability to complete a normal workday or workweek without interruption from a psychiatric 15 condition. (AR 910.) Dr. Barnes further opined that Plaintiff is moderately to severely impaired 16 in her ability to manage stressors in the workplace. (AR 910.) 17 B. Administrative Proceedings 18 The Commissioner denied Plaintiff’s application for benefits initially on October 26, 19 2015, and again on reconsideration on February 26, 2016. (AR 134–37, 141–46.) Consequently, 20 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 147–63.) The 21 ALJ conducted a hearing on October 6, 2017. (AR 38–73.). Plaintiff appeared at the hearing 22 with her counsel and testified. (AR 44–59.) Plaintiff’s husband (AR 59–67) and vocational 23 expert (AR 67–70) also testified. 24 C. The ALJ’s Decision 25 In a decision dated December 6, 2017, the ALJ found that Plaintiff was not disabled, as 26 defined by the Act. (AR 19–31.) The ALJ conducted the five-step disability analysis set forth in 27 20 C.F.R. § 404.1520. (AR 21–31.) The ALJ decided that Plaintiff had not engaged in substantial 28 gainful activity during the period from her alleged onset date of October 15, 2009 through her date 1 last insured of December 31, 2015 (step one). (AR 21.) At step two, the ALJ found Plaintiff’s 2 following impairments to be severe: lupus, valley fever, fibromyalgia, borderline personality 3 disorder, and substance abuse. (AR 21.) Plaintiff did not have an impairment or combination of 4 impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 5 Subpart P, Appendix 1 (“the Listings”) (step three). (AR 22.) 6 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)4 and applied the RFC 7 assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three 8 to step four, we assess your residual functional capacity . . . . We use this residual functional 9 capacity assessment at both step four and step five when we evaluate your claim at these steps.”). 10 The ALJ determined that Plaintiff had the RFC: 11 to perform less than the full range of light work as defined in 20 CFR [§] 404.1567(b). Specifically, [Plaintiff] is limited to the following: lifting and 12 carrying 20 pounds occasionally and 10 pounds frequently; occasional climbing ramps, stairs, balancing, kneeling, crouching, crawling, no climbing ladders, ropes 13 or scaffolds, no more than occasional overhead reaching, avoid even moderate 14 exposure to hazards, unprotected heights and dangerous machinery, and limited to simple repetitive tasks with occasional public contact. 15 (AR 22–23.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 16 expected to cause the alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as “not 17 entirely consistent with the medical evidence and other evidence in the record.” (AR 24.) 18 The ALJ found that Plaintiff could not perform her past relevant work as a school secretary. 19 (AR 29–30). Nonetheless, the ALJ determined that Plaintiff could perform alternate jobs that exist 20 in significant numbers in the national economy, such as mail sorter, photocopy machine operator, 21 and marker. (AR 30–31). Ultimately, the ALJ concluded that Plaintiff was not disabled at any 22 time through the date of her decision. (AR 31) 23 Plaintiff sought review of this decision before the Appeals Council, which denied review 24

25 4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES 26 II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an 27 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 evidence, and 28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 1 on September 5, 2018. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 2 Commissioner. 20 C.F.R. § 404.981. 3 III. LEGAL STANDARD 4 A. Applicable Law 5 An individual is considered “disabled” for purposes of disability benefits if he or she is 6 unable “to engage in any substantial gainful activity by reason of any medically determinable 7 physical or mental impairment which can be expected to result in death or which has lasted or can 8 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 9 However, “[a]n individual shall be determined to be under a disability only if [her] physical or 10 mental impairment or impairments are of such severity that [s]he is not only unable to do [her] 11 previous work but cannot, considering [her] age, education, and work experience, engage in any 12 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 13 “The Social Security Regulations set out a five-step sequential process for determining 14 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 15 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided 16 the following description of the sequential evaluation analysis: 17 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 18 proceeds to step two and evaluates whether the claimant has a medically severe 19 impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or 20 combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 21 not, the ALJ proceeds to step four and assesses whether the claimant is capable of 22 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] . . . to 23 perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 24 25 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 404.1520(a)(4) 26 (providing the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found 27 to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 28 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 1 “The claimant carries the initial burden of proving a disability in steps one through four of 2 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 3 1989)). “However, if a claimant establishes an inability to continue [his] past work, the burden 4 shifts to the Commissioner in step five to show that the claimant can perform other substantial 5 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 6 B. Scope of Review 7 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 8 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 9 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is defined as being 10 more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari, 253 F.3d 1152, 11 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way, substantial evidence is 12 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. 13 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 14 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 15 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 16 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 17 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the 18 evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 F.3d at 19 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may not 20 substitute its judgment for that of the Commissioner.” (citations omitted)). 21 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 22 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 23 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 24 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 25 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 26 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 27 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 28 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 1 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 2 Tommasetti, 533 F.3d at 1038 (quoting Robbins, 466 F.3d at 885). “[T]he burden of showing that 3 an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki 4 v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 5 The ALJ’s decision denying benefits “will be disturbed only if that decision is not supported 6 by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th 7 Cir. 1999). In reviewing the Commissioner’s decision, the Court may not substitute its judgment 8 for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court 9 must determine whether the Commissioner applied the proper legal standards and whether 10 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 11 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 12 “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as 13 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting 14 Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence is more 15 than a mere scintilla but less than a preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 16 1198 (9th Cir. 2008). The Court “must consider the entire record as a whole, weighing both the 17 evidence that supports and the evidence that detracts from the Commissioner’s conclusion, and may 18 not affirm simply by isolating a specific quantum of supporting evidence.” Lingenfelter v. Astrue, 19 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted). 20 IV. DISCUSSION 21 Plaintiff contends that the ALJ failed to provide specific and legitimate reasons, supported 22 by substantial evidence, for implicitly rejecting the opinion of consultative examiner Dr. Barnes 23 that Plaintiff would have moderate limitations completing a normal workday or workweek due to 24 her mental condition, moderate difficulties accepting instruction from supervisors and interacting 25 with coworkers, and moderate to severe difficulty dealing with stress encountered in the workplace. 26 (Doc. 11 at 5.) The Court agrees. 27 /// 28 1 Determining Plaintiff’s Residual Functional Capacity 2 1. Legal Standard 3 The weight given to medical source opinions depends in part on whether they are proffered 4 by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 5 1201–02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking, 6 a treating physician’s opinion carries more weight than an examining physician’s opinion, and an 7 examining physician’s opinion carries more weight than a non-examining physician’s opinion. 8 Holohan, 246 F.3d at 1202. 9 An ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted 10 opinion of either a treating or examining physician. Lester, 81 F.3d at 830; Pitzer v. Sullivan, 908 11 F.2d 502, 506 (9th Cir. 1990); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Even if a 12 treating or examining physician’s opinion is contradicted, that opinion can be rejected only “for 13 specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 14 81 F.3d at 830–31. The ALJ can meet this burden by “setting out a detailed and thorough summary 15 of the facts and conflicting clinical evidence, stating his interpretation thereof, and making 16 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). 17 2. Analysis 18 In his decision, the ALJ specifically noted Dr. Barnes’ opinion regarding Plaintiff’s 19 moderate limitations in her ability to accept instruction from supervisors or others and to interact 20 with coworkers and/or the public, moderate difficulties in completing a normal workweek without 21 interruption from a psychiatric condition, and moderate to severe limitation in managing stressors 22 in the workplace, and purported to give “great weight” to the opinion. (AR 28, 29.) The ALJ 23 explained that she gave Dr. Barnes’ opinion such weight because it is “consistent with objective 24 findings.” (AR 29.) However, nothing in the ALJ’s RFC, including the limitation to “simple 25 repetitive tasks with occasional public contact” (AR 23), accommodates Dr. Barnes’ opined 26 moderate and severe impairments. While the ALJ need not accept the full extent of Dr. Barnes’ 27 opinion, the ALJ may not reject it, or significant parts of it, without giving specific and legitimate 28 reasons for doing so. See Lester, 81 F.3d at 830-31. Accordingly, the ALJ erred by not providing 1 specific and legitimate reasons, supported by substantial evidence, for implicitly rejecting 2 significant portions of Dr. Barnes’ opinion. See, e.g., Bain v. Astrue, 319 F. App’x. 543, 545–46 3 (9th Cir. 2009) (remanding where the ALJ failed to either discredit or incorporate the limitations 4 enumerated by the state agency consultant, including that the opinion that claimant was moderately 5 limited in her ability to accept instructions and respond appropriately to criticism from supervisors); 6 Barnes v. Colvin, CASE NO. 5:16-CV-01183-SK, 2017 WL 8220233, at *3 (C.D. Cal. Apr. 17, 7 2017) (finding ALJ erred in failing to explain why RFC assessment did not adopt consultative 8 psychiatrist’s opined moderate limitations completing a normal workday or workweek due to 9 Plaintiff’s mental condition); Burley v. Berryhill, No. 2:16–cv–485–EFB, 2017 WL 3172983, at *4 10 (E.D. Cal. July 26, 2017) (“While the ALJ purported to give substantial weight to Dr. Kalman’s 11 opinion, the ALJ omitted from her RFC determination any limitation regarding plaintiff’s ability 12 to interact with co-workers and supervisors, a limitation specifically assessed by Dr. Kalman. 13 Furthermore, the ALJ’s RFC determination assumes no impairment in plaintiff’s ability to perform 14 such interactions. Thus, the ALJ rejected Dr. Kalman’s opinion in that regard, but did so without 15 any reason, much less a specific and legitimate one. This constitutes reversible error.”); Jackson v. 16 Colvin, No. EDCV 12–00606–MAN, at *5 (C.D. Cal. May 2, 2013) (finding ALJ erred in failing 17 to proffer any reason for failing to explain the rejection of consultative psychiatrist’s opinion that 18 claimant would have mild to moderate limitations with respect to handling normal stresses at work). 19 See also TITLES II & XVI: CAPABILITY TO DO OTHER WORK-THE MEDICAL-VOCATIONAL RULES AS 20 A FRAMEWORK FOR EVALUATING SOLELY NONEXERTIONAL IMPAIRMENTS, SSR 85-15, 1985 WL 21 56857, at *5–6 (S.S.A. 1985) (emphasizing that mentally impaired people often “have difficulty 22 accommodating to the demands of work and work-like settings” and thus “[a]ny impairment- 23 related limitations created by an individual’s response to demands of work . . . must be reflected in 24 the RFC assessment”). 25 The Commissioner argues that the ALJ’s limitation to simple, repetitive work and only 26 occasional contact with the public adequately “accommodated” all of Plaintiff’s limitations. (Doc. 27 12 at 13.) Contrary to the Commissioner’s suggestion, an inability to appropriately interact with 28 or respond to criticism from supervisors and coworkers, for example, is distinct from an inability 1 to interact with the public. Indeed, the Social Security regulations treat the abilities to respond 2 appropriately to “supervision” and to get along with “coworkers” as aspects of the “basic mental 3 demands” of unskilled work, noting that the “substantial loss of ability to meet” any basic mental 4 demand could “severely limit the potential occupational base.” 20 C.F.R. § 404.1545(a)(1); SSR 5 85-15 at *4. See Hunter v. Colvin, 2015 WL 501466, at *1 (C.D. Cal. Feb. 5, 2015) (RFC limiting 6 claimant’s contact with the public did not account for physician’s opinion that claimant was limited 7 in ability to interact with co-workers and supervisors). The cases on which the Commissioner relies 8 in support of his argument are distinguishable because they concern whether it was harmless error 9 that the ALJ failed to address findings of mild to moderate limitations in social functioning, 10 concentration, and/or persistence where the RFC included a limitation to simple, repetitive tasks. 11 (See Doc. 12 at 13–14.) In contrast, Dr. Barnes’ opinion went well beyond moderate impairments 12 in these areas. (See AR 910 (opining that Plaintiff moderate to severe difficulty dealing with stress 13 encountered in the workplace)) (emphasis added). 14 On the present record, the Court cannot determine that the ALJ’s error in failing to discuss 15 the reasons she rejected these limitations was harmless. See Molina, 674 F.3d at 1115 (“[A]n ALJ’s 16 error is harmless where it is inconsequential to the ultimate nondisability determination.”) (citations 17 and quotations omitted); see also Thompson v. Astrue, No. ED CV 12–265–E, 2012 WL 4513724, 18 at *4 (C.D. Cal. Oct. 2, 2012) (holding ALJ’s error in failing to discuss consultative psychiatrist’s 19 opinions regarding mild to moderate limitations completing complex tasks, handling normal 20 stresses at work, and completing a normal work week without interruption not harmless where RFC 21 was limited to moderately complex tasks up to four to five steps). Dr. Barnes stated that Plaintiff 22 would have moderate limitations in her ability to accept instruction from supervisors or others and 23 to interact with coworkers and/or the public, moderate difficulties in completing a normal 24 workweek without interruption from a psychiatric condition, and moderate to severe limitation in 25 managing stressors in the workplace. (AR 391–92.) The vocational expert did not testify that a 26 person could work with the moderate limitations Dr. Barnes found to exist. (See AR 67–70 27 (vocational expert’s testimony).) The vocational expert did testify, however, that if a person with 28 the limitations the ALJ found to exist were off task at least 25 percent of the time or would miss 1 more than two days of work per month on a consistent basis, the person would not be able to do 2 any jobs in the labor market. (AR 69–70.) Accordingly, remand is warranted on this issue. See, 3 e.g., Devery v. Colvin, Case No. CV 15-08503-RAO, 2016 WL 3452487, at *5 (C.D. Cal. June 22, 4 2016) (court could not determine harmlessness of ALJ’s failure to discuss reasons she rejected 5 limitations because VE did not testify that a hypothetical person with those limitations could work); 6 Dunlap v. Astrue, No. CIV S–09–3446 EFB, 2011 WL 1135357, at *6 (E.D. Cal. Mar. 25, 2011) 7 (court could not determine harmlessness of error because it was unable to “determine how the VE 8 would have responded if he had been given a hypothetical containing [examining physician]’s 9 actual opinion.”). 10 B. The Court Declines to Determine Plaintiff’s Remaining Assertions of Error 11 Having found that remand is warranted, the Court declines to address Plaintiff’s remaining 12 arguments that the ALJ erred in rejecting medical opinion evidence with respect to Plaintiff’s 13 alleged left wrist impairment. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because 14 we remand the case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative 15 ground for remand.”); see also Newton v. Colvin, No. 2:13–cv–2458–GEB–EFB, 2015 WL 16 1136477, at *6 n.4 (E.D. Cal. Mar. 12, 2015) (“As the matter must be remanded for further 17 consideration of the medical evidence, the court declines to address plaintiff’s remaining 18 arguments.”); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) 19 (“[The] Court need not address the other claims plaintiff raises, none of which would provide 20 plaintiff with any further relief than granted, and all of which can be addressed on remand.”). 21 C. Remand for Further Proceedings is Appropriate 22 When an ALJ commits error that is not harmless, “[t]he decision whether to remand for 23 further proceedings or simply to award benefits is within the discretion of [the] court.” McAllister 24 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 25 1987)). Because further administrative review could remedy the ALJ’s error, remand for further 26 administrative proceedings, rather than an award of benefits, is warranted here.5 See Brown-Hunter 27 v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (remanding for an award of benefits is appropriate in 28 1 rare circumstances). See also Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981) (“If additional 2 proceedings can remedy defects in the original administrative proceeding, a social security case 3 should be remanded.”); Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (“Remand for 4 further administrative proceedings is appropriate if enhancement of the record would be useful.”). 5 Before ordering remand for an award of benefits, three requirements must be met: (1) the Court 6 must conclude that the ALJ failed to provide legally sufficient reasons for rejecting evidence; (2) 7 the Court must conclude that the record has been fully developed and further administrative 8 proceedings would serve no useful purpose; and (3) the Court must conclude that if the improperly 9 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled 10 on remand. Brown-Hunter, 806 F.3d at 495 (citations omitted). Even if all three requirements are 11 met, the Court retains flexibility to remand for further proceedings “when the record as a whole 12 creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the 13 Social Security Act.” Id. (citation omitted). 14 Here, remand for further administrative proceedings is appropriate. On remand, the ALJ 15 shall reconsider the opinion of Dr. Barnes’ regarding Plaintiff’s moderate and moderate-to-severe 16 limitations, and either credit her opinion or provide specific and legitimate reasons supported by 17 substantial evidence for rejecting it. The ALJ shall also consider the medical evidence of Plaintiff’s 18 alleged medical determinable impairments (including that pertaining to her left wrist) and, if 19 necessary, reassess Plaintiff’s RFC, considering the entirety of Dr. Barnes’ opinion, as well as the 20 other medical evidence. The ALJ shall then proceed through steps four and five to determine what 21 work, if any, Plaintiff is capable of performing. 22 V. CONCLUSION AND ORDER 23 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 24 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further 25 proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter judgment 26 in favor of Plaintiff Terrie Jo Flores and against Defendant Andrew Saul, Commissioner of Social 27 Security. 28 1 Sheila K. Oberto 2 Dated: January 30, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 3

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