1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIE GILLIT, No. 2:22-cv-2050 DB 12 Plaintiff, 13 v. ORDER 14 MARTIN O’MALLEY, Commissioner of Social Security,1 15 16 Defendant. 17 18 This social security action was submitted to the court without oral argument for ruling on 19 plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.2 20 Plaintiff argues that the ALJ’s step two finding, treatment of the medical opinion evidence, and 21 residual functional capacity determination were erroneous. For the reasons explained below, 22 //// 23 1 Martin O’Malley became the Commissioner of the Social Security Administration on December 24 20, 2023. See https://blog.ssa.gov/martin-j-omalley-sworn-in-as-commissioner-of-social- security-administration/ (last visited by the court on February 21, 2024). Accordingly, Martin 25 O’Malley is substituted in as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the 26 “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 27 2 Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant 28 to 28 U.S.C. § 636(c). (See ECF No. 9.) 1 plaintiff’s motion is granted, the decision of the Commissioner of Social Security 2 (“Commissioner”) is reversed, and the matter is remanded for immediate payment of benefits. 3 PROCEDURAL BACKGROUND 4 In October of 2013, plaintiff filed applications for Disability Insurance Benefits (“DIB”) 5 under Title II of the Social Security Act (“the Act”) and for Supplemental Security Income 6 (“SSI”) under Title XVI of the Act alleging disability beginning on April 10, 2012. (Transcript 7 (“Tr.”) at 1838-39.) Plaintiff’s applications were denied initially, (id. at 213-17), upon 8 reconsideration, (id. at 221-26), and after an administrative hearing before an Administrative Law 9 Judge (“ALJ”). (Id. at 11.) On April 4, 2017, the Appeals Council denied plaintiff’s request for 10 review of the ALJ’s decision. (Id. at 1.) 11 Thereafter, this action was twice previously been before this court. On the first occasion, 12 the court granted plaintiff’s motion for summary judgment and remanded the matter for further 13 proceedings. See Gillit v. Berryhill, No. 2:17-cv-1126 AC, 2018 WL 4538274 (E.D. Cal. Sept. 14 21, 2018). After further proceedings resulted in another finding that plaintiff was not disabled, 15 plaintiff initiated another action in this court, which resulted in the court granting defendant’s 16 motion for summary judgement. See Gillit v. Commissioner of Social Security, No. 2:19-cv- 17 1542 KJN, 2020 WL 5074020 (E.D. Cal. 2020). However, pursuant to the parties’ joint motion, 18 the Ninth Circuit vacated the court’s order and directed this court to remand the case for further 19 administrative proceedings. See Gillit v. Saul, No. 20-17123, 2021 WL 4144987 (9th Cir. 2021). 20 Another hearing was held before an ALJ on June 14, 2022. (Id. at 1592-1625.) Plaintiff 21 was represented by an attorney and testified at the administrative hearing. (Id. at 1592-96, 1609.) 22 In a decision issued on August 19, 2022, the ALJ found that plaintiff was not disabled at any time 23 through June 30, 2013. (Id. at 1577.) The ALJ entered the following findings: 24 1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2013. 25 2. The claimant has not engaged in substantial gainful activity 26 since April 10, 2012, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.). 27 3. Since the alleged onset date of disability, April 10, 2012, the 28 claimant has had the following severe impairments: degenerative 1 disc disease of the lumbar spine, right cubital tunnel syndrome with neuropathy, carpal tunnel syndrome (CTS), degenerative joint 2 disease of the right knee, alcohol use disorder, psychotic disorder not otherwise specified or schizoaffective disorder, major depressive 3 disorder, and panic or generalized anxiety disorder (20 CFR 404.1520(c) and 416.920(c)). 4 4. Since April 10, 2012, the claimant has not had an impairment or 5 combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, 6 Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). 7 5. After careful consideration of the entire record, I find that since 8 April 10, 2012, the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) 9 except she can occasionally stoop and bend. She can frequently handle and finger with right upper extremity. She is limited to 10 simple, routine and repetitive tasks. She is limited to a low stress work environment, defined as occasional decision making and 11 occasional changes in the work setting. She is limited to occasional contact with coworkers, supervisors and the public. 12 6. Since April 10, 2012, the claimant has been unable to perform any 13 past relevant work (20 CFR 404.1565 and 416.965). 14 7. Prior to the established disability onset date, the claimant was an individual closely approaching advanced age. On January 26, 2022, 15 the claimant’s age category changed to an individual of advanced age (20 CFR 404.1563 and 416.963). 16 8. The claimant has at least a high school education (20 CFR 17 404.1564 and 416.964). 18 9. Prior to January 26, 2022, transferability of job skills is not material to the determination of disability because using the Medical- 19 Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job 20 skills. Beginning on March 10, 2016, the claimant has not been able to transfer job skills to other occupations (See SSR 82-41 and 20 21 CFR Part 404, Subpart P, Appendix 2). 22 10. Prior to January 26, 2022, considering the claimant’s age category changed, considering the claimant’s age, education, work 23 experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the 24 claimant could have performed (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)). 25 11. Beginning on January 26, 2022, the date the claimant’s age 26 category changed, considering the claimant’s age, education, work experience, and residual functional capacity, there are no jobs that 27 exist in significant numbers in the national economy that the claimant could perform (20 CFR 404.1569, 404.1569(a), 416.969, and 28 416.969(a)). 1 12. The claimant was not disabled prior to January 26, 2022, but became disabled on that date and has continued to be disabled 2 through the date of this decision. Her disability is expected to last twelve months past the onset date (20 CFR 404.1520(g) and 3 416.920(g)). 4 13. The claimant was not under a disability within the meaning of the Social Security Act at any time through June 30, 2013, the date 5 last insured (20 CFR 404.315(a) and 404.320(b)). 6 14. The claimant’s substance use disorder(s) is not a contributing factor material to the determination of disability (20 CFR 404.1535 7 and 416.935). 8 (Id. at 1558-77.) Plaintiff again sought judicial review pursuant to 42 U.S.C. § 405(g) by filing 9 the complaint in this action on November 14, 2022. (ECF. No. 1.) 10 LEGAL STANDARD 11 “The district court reviews the Commissioner’s final decision for substantial evidence, 12 and the Commissioner’s decision will be disturbed only if it is not supported by substantial 13 evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012). 14 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 15 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v. 16 Chater, 108 F.3d 978, 980 (9th Cir. 1997). 17 “[A] reviewing court must consider the entire record as a whole and may not affirm 18 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., 19 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 20 1989)). If, however, “the record considered as a whole can reasonably support either affirming or 21 reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d 22 1072, 1075 (9th Cir. 2002). 23 A five-step evaluation process is used to determine whether a claimant is disabled. 20 24 C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step 25 process has been summarized as follows: 26 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 27 28 //// 1 Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is 2 appropriate. 3 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 4 Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. 5 Step four: Is the claimant capable of performing his past work? If 6 so, the claimant is not disabled. If not, proceed to step five. 7 Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, 8 the claimant is disabled. 9 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 10 The claimant bears the burden of proof in the first four steps of the sequential evaluation 11 process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden 12 if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 13 1098 (9th Cir. 1999). 14 APPLICATION 15 Plaintiff’s pending motion asserts the following three principal claims: (1) the ALJ erred 16 at step two of the sequential evaluation; (2) the ALJ’s treatment of the medical opinion evidence 17 constituted error; (3) the ALJ’s residual functional capacity determination was erroneous. (Pl.’s 18 MSJ (ECF No. 15) at 7-20.3) 19 I. Step Two Error 20 At step two of the sequential evaluation, the ALJ must determine if the claimant has a 21 medically severe impairment or combination of impairments. Smolen v. Chater, 80 F.3d 1273, 22 1289-90 (9th Cir. 1996) (citing Yuckert, 482 U.S. at 140-41). The Commissioner’s regulations 23 provide that “[a]n impairment or combination of impairments is not severe if it does not 24 significantly limit [the claimant’s] physical or mental ability to do basic work activities.” 20 25 C.F.R. §§ 404.1521(a) & 416.921(a). Basic work activities are “the abilities and aptitudes 26 necessary to do most jobs,” and those abilities and aptitudes include: (1) physical functions such 27 3 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 system and not to page numbers assigned by the parties. 1 as walking, standing, sitting, lifting, and carrying; (2) capacities for seeing, hearing, and speaking; 2 (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) 3 responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing 4 with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b) & 416.921(b). 5 The Supreme Court has recognized that the Commissioner’s “severity regulation increases 6 the efficiency and reliability of the evaluation process by identifying at an early stage those 7 claimants whose medical impairments are so slight that it is unlikely they would be found to be 8 disabled even if their age, education, and experience were taken into account.” Yuckert, 482 U.S. 9 at 153. However, the regulation must not be used to prematurely disqualify a claimant. Id. at 158 10 (O’Connor, J., concurring). “An impairment or combination of impairments can be found not 11 severe only if the evidence establishes a slight abnormality that has no more than a minimal effect 12 on an individual[’]s ability to work.” Smolen, 80 F.3d at 1290 (internal quotation marks and 13 citation omitted). 14 “[A]n ALJ may find that a claimant lacks a medically severe impairment or combination 15 of impairments only when his conclusion is ‘clearly established by medical evidence.’” Webb v. 16 Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Social Security Ruling (“SSR”) 85-28); see 17 also Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (claimant failed to satisfy step two 18 burden where “none of the medical opinions included a finding of impairment, a diagnosis, or 19 objective test results”). “Step two, then, is ‘a de minimis screening device [used] to dispose of 20 groundless claims[.]’” Webb, 433 F.3d at 687 (quoting Smolen, 80 F.3d at 1290); see also 21 Edlund v. Massanari, 253 F.3d 1152, 1158-59 (9th Cir. 2001) (discussing this “de minimis 22 standard”); Tomasek v. Astrue, No. C-06-07805 JCS, 2008 WL 361129, at *13 (N.D. Cal. 23 Feb.11, 2008) (describing claimant’s burden at step two as “low”). 24 Here, at step two of the sequential evaluation the ALJ found “the evidence of record does 25 not support a medically determinable cognitive impairment.” (Tr. at 1559.) The evidence of 26 record, however, included Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV) tests, 27 which plaintiff “achieved a borderline Verbal Comprehension Index (VCI) scores of 70-76, low 28 average-to- borderline Perceptual Reasoning Index (PRI) scores of 77-81 and borderline Full 1 Scale IQ (FSIQ) scores of 70-71.” Id. The record also included Wechsler Memory Scale-Fourth 2 Edition (WMS-IV) tests, which plaintiff “achieved borderline and extremely low scores.” (Id.) 3 The evidence of record also included the opinion of examining physician, Lauri Stenbeck, Psy.D. 4 (Id. at 1334.) Dr. Stenbeck examination and testing found that plaintiff’s “intellectual abilities are 5 in the borderline range with extremely low to borderline memory abilities.” (Id. at 1342.) 6 “[C]ase law indicates that borderline intellectual functioning should be considered a 7 severe impairment.” Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir. 2001); see also 8 Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007) (“A diagnosis of borderline intellectual 9 functioning should be considered severe when the diagnosis is supported by sufficient medical 10 evidence.”). Here, the ALJ attempted to support the decision to find plaintiff’s cognitive 11 impairment not severe by providing reasons not to credit the evidence establishing plaintiff’s 12 cognitive impairment. (Tr. at 1559-60.) 13 However, the ALJ’s conclusion that the claimant lacks a medically severe impairment or 14 combination of impairments is valid only when that conclusion is “clearly established by medical 15 evidence.” Webb, 433 F.3d at 687. On this record, the court cannot say that it was clearly 16 established by the medical evidence that plaintiff’s cognitive impairment was not severe during 17 the period at issue. See Ortiz v. Commissioner of Social Sec., 425 Fed. Appx. 653, 655 (9th Cir. 18 2011) (“This is not the total absence of objective evidence of severe medical impairment that 19 would permit us to affirm a finding of no disability at step two.”); Webb, 433 F.3d at 687 20 (“Although the medical record paints an incomplete picture of Webb’s overall health during the 21 relevant period, it includes evidence of problems sufficient to pass the de minimis threshold of 22 step two.”); Russell v. Colvin, 9 F.Supp.3d 1168, 1186-87 (D. Or. 2014) (“On review, the court 23 must determine whether the ALJ had substantial evidence to find that the medical evidence 24 clearly established that Ms. Russell did not have a medically severe impairment or combination of 25 impairments.”); cf. Ukolov, 420 F.3d at 1006 (“Because none of the medical opinions included a 26 finding of impairment, a diagnosis, or objective test results, Ukolov failed to meet his burden of 27 establishing disability.”). 28 //// 1 Accordingly, plaintiff is entitled to summary judgment on the claim that the ALJ erred at 2 step two of the sequential evaluation. 3 II. Medical Opinion Evidence 4 For Social Security disability cases filed prior to March 27, 2017, the weight to be given 5 to medical opinions depends in part on whether the opinions are proffered by treating, examining, 6 or nonexamining health professionals.4 Lester, 81 F.3d at 830; Fair v. Bowen, 885 F.2d 597, 604 7 (9th Cir. 1989). “As a general rule, more weight should be given to the opinion of a treating 8 source than to the opinion of doctors who do not treat the claimant . . . .” Lester, 81 F.3d at 830. 9 This is so because a treating doctor is employed to cure and has a greater opportunity to know and 10 observe the patient as an individual. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Bates 11 v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990). 12 The uncontradicted opinion of a treating or examining physician may be rejected only for 13 clear and convincing reasons, while the opinion of a treating or examining physician that is 14 controverted by another doctor may be rejected only for specific and legitimate reasons supported 15 by substantial evidence in the record. Lester, 81 F.3d at 830-31. “The opinion of a nonexamining 16 physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion 17 of either an examining physician or a treating physician.” (Id. at 831.) Finally, although a 18 treating physician’s opinion is generally entitled to significant weight, “‘[t]he ALJ need not 19 accept the opinion of any physician, including a treating physician, if that opinion is brief, 20 conclusory, and inadequately supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661, 21 671 (9th Cir. 2012) (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 22 2009)). 23 Here, plaintiff’s treating psychiatrist, Suryabanu Javeed, M.D., opined that plaintiff could 24 not maintain regular attendance, be punctual, work in proximity to others, accept instructions, 25 respond appropriately to criticism for supervisors, get along with coworkers, or deal with normal 26 4 Effective March 27, 2017, Revisions to Rules Regarding the Evaluation of Medical Evidence 27 went into effect. Plaintiff’s application, however, was filed prior to March 27, 2017. “For claims filed before March 27, 2017, but not decided until after that date . . . the rules listed in 20 C.F.R. 28 §§ 404.1527(c), 416.927(c) apply.” Edinger v. Saul, 432 F.Supp.3d 516, 530 (E.D. Pa. 2020). 1 work stress. (Tr. at 1344-48, 1573 .) Moreover, it was Dr. Javeed’s opinion that plaintiff would 2 miss more than three workdays per month due to plaintiff’s impairments. (Id.) The ALJ 3 purportedly gave “great weight” to Dr. Javeed’s opinion as to plaintiff’s “ability to deal with 4 normal work stress and little weight to the remaining opinion” for “the same reasons discussed 5 regarding Dr. Hooper’s medical opinion. (Id.) The ALJ then concluded, “I give little weight to 6 Dr. Javeed’s opinion.” (Id.) 7 The ALJ erred in at least two respects. First, an ALJ errs when “[s]he rejects a medical 8 opinion or assigns it little weight while doing nothing more than ignoring it, asserting without 9 explanation that another medical opinion is more persuasive, or criticizing it with boilerplate 10 language that fails to offer a substantive basis for h[er] conclusion.” Garrison v. Colvin, 759 F.3d 11 995, 1012-13 (9th Cir. 2014); see also Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) 12 (“Here, although the ALJ did attempt to relate the objective findings to Dr. Pettinger’s medical 13 opinion . . . he appears ultimately to have stated that the opinion was not supported by the 14 objective findings. As we have already discussed, and as our case law clearly establishes, this is 15 not sufficient.”); Embrey, 849 F.2d at 421-22 (“To say that medical opinions are not supported by 16 sufficient objective findings or are contrary to the preponderant conclusions mandated by the 17 objective findings does not achieve the level of specificity . . . required, even when the objective 18 factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth 19 his own interpretations and explain why they, rather than the doctors’, are correct.”). 20 Second, the opinion vaguely referred to by the ALJ as provided by “Dr. Hopper,” was 21 provided by Dr. Laura Hopper, a nonexamining physician. (Tr. at 1571.) “By rule, the Social 22 Security Administration favors the opinion of a treating physician over non-treating physicians.” 23 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); see also Reddick, 157 F.3d at 725 (“The 24 opinions of treating doctors should be given more weight than the opinions of doctors who do not 25 treat the claimant.”). As noted above, “[t]he opinion of a nonexamining physician cannot by 26 itself constitute substantial evidence that justifies the rejection of the opinion of either an 27 examining physician or a treating physician.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1202 28 (9th Cir. 2008) (quoting Lester, 81 F.3d at 831). 1 In affording “great weight” to Dr. Hooper’s opinion the ALJ relied on vague and 2 conclusory references to plaintiff’s “ability to independently care for an infant, positive response 3 to treatment, largely intact cognition, average intelligence and intact memory despite some 4 evidence of paranoid thought content and substance use disorder,” as well as “positive response to 5 treatment[.]”5 (Tr. at 1571.) Even if the ALJ specifically relied on these reasons for rejecting Dr. 6 Javeed’s opinion, it would be erroneous. 7 In this regard, the ALJ cites to no evidence in support of these assertions. The ALJ’s own 8 opinion, however, did discuss and cite to evidence of plaintiff’s “long history of mental health 9 treatment for a range of mental impairments, including psychotic disorder, schizoaffective 10 disorder, major depressive disorder, panic disorder and generalized anxiety disorder.” (Id. at 11 1568.) That plaintiff had been treated with “psychotropic medication and mental health 12 counseling,” resulting in “less hallucinations.” (Id.) That at times plaintiff presented for 13 treatment “as anxious with depressed, sad and/or flat affect.” (Id.) Plaintiff was also treated with 14 “antipsychotic and antidepressant medications.” (Id. at 1569.) Plaintiff “endorsed psychotic 15 symptoms,” “paranoid delusions, low stress tolerance and auditory, visual and tactile 16 hallucinations.” (Id.) 17 The ALJ’s vague and conclusory reference to plaintiff’s “positive response to treatment” 18 is particularly concerning. The Ninth Circuit has explained that: 19 Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick 20 out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is 21 capable of working. 22 Garrison, 759 F.3d at 1017. Moreover, 23 Reports of ‘improvement’ in the context of mental health issues must be interpreted with an understanding of the patient’s overall well- 24 being and the nature of her symptoms. They must also be interpreted with an awareness that improved functioning while being treated and 25 while limiting environmental stressors does not always mean that a claimant can function effectively in a workplace. 26 27 5 “[T]he mere fact that she cares for small children does not constitute an adequately specific 28 conflict with her reported limitation.” Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017). 1 Id.; see also Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011) (“although Scott had improved 2 with treatment, she nevertheless continued to frequently experience bouts of crying and feelings 3 of paranoia. The ALJ was not permitted to ‘cherry-pick’ from those mixed results to support a 4 denial of benefits”). That someone dealing with mental illness “makes some improvement does 5 not mean that the person’s impairment no longer seriously affects [her] ability to function in a 6 workplace.” Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). 7 Here, Dr. Javeed was both plaintiff’s treating physician and a specialist. The opinions of a 8 medical specialist regarding the specialist’s area of expertise “are given more weight than the 9 opinions of a nonspecialist.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); see also 10 Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (“Each rheumatologist’s opinion is given 11 greater weight than those of the other physicians because it is an opinion of a specialist about 12 medical issues related to his or her area of specialty.”). In rejecting Dr. Javeed’s opinion the ALJ 13 failed to offer a specific and legitimate reason supported by substantial evidence in the record. 14 Accordingly, plaintiff is entitled to summary judgment on the claim that the ALJ’s 15 treatment of the medical opinion offered by Dr. Javeed constituted error. 16 CONCLUSION 17 After having found error, “‘[t]he decision whether to remand a case for additional 18 evidence, or simply to award benefits[,] is within the discretion of the court.’”6 Trevizo, 871 F.3d 19 at 682 (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). A case may be 20 remanded under the “credit-as-true” rule for an award of benefits where: 21 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 22 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 23 24 6 Having already identified errors, and upon review of the record, the court finds it unnecessary to 25 reach plaintiff’s remaining claims of error. See Janovich v. Colvin, No. 2:13-cv-0096 DAD, 2014 26 WL 4370673, at *7 (E.D. Cal. Sept. 2, 2014) (“In light of the analysis and conclusions set forth above, the court need not address plaintiff's remaining claims of error.”); Manning v. Colvin, No. 27 CV 13-4853 DFM, 2014 WL 2002213, at *2 (C.D. Cal. May 15, 2014) (“Because the Court finds that the decision of the ALJ must be reversed on the basis of the stooping limitation, the Court 28 need not address Plaintiff's remaining contentions.”). 1 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 2 3 Garrison, 759 F.3d at 1020. 4 Even where all the conditions for the “credit-as-true” rule are met, the court retains 5 “flexibility to remand for further proceedings when the record as a whole creates serious doubt as 6 to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 7 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court 8 concludes that further administrative proceedings would serve no useful purpose, it may not 9 remand with a direction to provide benefits.”); Treichler v. Commissioner of Social Sec. Admin., 10 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ makes a legal error, but the record is 11 uncertain and ambiguous, the proper approach is to remand the case to the agency.”). 12 Plaintiff applied for benefits more than 10 years ago. (Def.’s Mot. (ECF No. 18) at 2.) As 13 noted above, this is the third time the ALJ’s decision has been reversed. Under such 14 circumstance sending this matter back to the ALJ for a fourth bite at the apple would be 15 questionable at best. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) 16 (“Allowing the Commissioner to decide the issue again would create an unfair ‘heads we win; 17 tails, let’s play again’ system of disability benefits adjudication.”); Moisa v. Barnhart, 367 F.3d 18 882, 887 (9th Cir. 2004) (“The Commissioner, having lost this appeal, should not have another 19 opportunity to show that Moisa is not credible any more than Moisa, had he lost, should have an 20 opportunity for remand and further proceedings to establish his credibility.”). 21 Most importantly though, if the improperly discredited evidence were credited as true, the 22 ALJ would be required to find plaintiff disabled on remand. In this regard, Dr. Javeed’s opinion 23 alone establishes plaintiff’s disability as confirmed by the VE’s testimony. (Tr. at 1621.) “Such a 24 finding by the vocational expert is a sufficient basis upon which to remand for determination of 25 benefits.” Wechel v. Berryhill, 713 Fed. Appx. 559, 562 (9th Cir. 2017); see also Varela v. Saul, 26 827 Fed. Appx. 713, 714-15 (9th Cir. 2020) (“Further administrative proceedings are not 27 necessary where the ALJ improperly rejected evidence, the record has been fully developed, and 28 further proceedings would not be useful.”). Furthermore, the record as whole does not create 1 serious doubt as to whether plaintiff is disabled. See Moe v. Berryhill, 731 Fed. Appx. 588, 592 2 (9th Cir. 2018) (“Remand for immediate award of benefits is appropriate in this case because all 3 three factors of the credit-as-true rule are satisfied, leaving no ‘serious doubt’ as to Moe’s 4 disability.”). This case, therefore, will be remanded for the immediate award of benefits. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. Plaintiff’s motion for summary judgment (ECF No. 15) is granted; 7 2. Defendant’s cross-motion for summary judgment (ECF No. 18) is denied; 8 3. The Commissioner’s decision is reversed; 9 4. This matter is remanded for the immediate award of benefits; and 10 5. The Clerk of the Court shall enter judgment for plaintiff, and close this case. 11 DATED: March 8, 2024 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 12
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