(SS) Nanney v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: November 28, 2023
• Docket: 1:21-cv-00527
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DOROTHY NANNEY, Case No. 1:21-cv-00527-HBK 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, DENYING 13 v. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND REMANDING CASE TO 14 KILOLO KIJAKAZI, COMMISSIONER OF SOCIAL SECURITY1 COMMISSIONER OF SOCIAL 15 SECURITY, (Doc. Nos. 15, 17) 16 Defendant. 17 18 Dorothy Nanney (“Plaintiff”), seeks judicial review of a final decision of the 19 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 20 supplemental security income and disability insurance benefits under the Social Security Act. 21 (Doc. No. 1). The matter is currently before the undersigned on the parties’ briefs, which were 22 submitted without oral argument. (Doc. Nos. 15, 17-18). For the reasons set forth more fully 23 below, the Court grants Plaintiff’s motion for summary judgment, denies Defendant’s motion for 24 summary judgment, and remands the matter to the Commissioner of Social Security for further 25 administrative proceedings. 26 //// 27 1 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. 28 §636(c)(1). (Doc. No. 10). 1 I. JURISDICTION 2 Plaintiff protectively filed for supplemental security income and disability insurance 3 benefits on January 23, 2018, alleging a disability onset date of March 6, 2016 in both 4 applications. (AR 319-30). Benefits were denied initially (AR 169-202, 240-46) and upon 5 reconsideration (AR 205-35, 249-55). Plaintiff appeared for a hearing before an administrative 6 law judge (“ALJ”) on March 26, 2020. (AR 114-49). Plaintiff testified at the hearing and was 7 represented by counsel. (Id.). The ALJ denied benefits (AR 49-79) and the Appeals Council 8 denied review (AR 10-15). The matter is before the Court under 42 U.S.C. § 405(g) and 42 9 U.S.C. § 1383(c)(3). 10 II. BACKGROUND 11 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 12 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 13 summarized here. 14 Plaintiff was 61 years old at the time of the hearing. (AR 119). She testified that she 15 graduated high school and was taking online college classes at the time of the hearing. (AR 119- 16 20). She lives with her parents. (AR 119). She has a work history as a home attendant and 17 telephone solicitor. (AR 120-21, 144). Plaintiff testified that she can no longer work at a call 18 center because it is too stressful to have a quota, and she can no longer work at all because of 19 chronic fatigue from valley fever and seizure disorder. (AR 121, 124-25, 132). She reported 20 depression also causes fatigue, she has trouble interacting with people, and she would have 21 trouble working eight-hour days because of stress. (AR 133-34, 137-38). Plaintiff takes rest 22 breaks, on average, every hour and a half to two hours in a reclined position. (AR 141-43). 23 III. STANDARD OF REVIEW 24 A district court’s review of a final decision of the Commissioner of Social Security is 25 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 26 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 27 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 28 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 1 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 2 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 3 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 4 consider the entire record as a whole rather than searching for supporting evidence in isolation. 5 Id. 6 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 7 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 8 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 9 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 10 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 11 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 12 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 13 U.S. 396, 409-10 (2009). 14 IV. SEQUENTIAL EVALUATION PROCESS 15 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 16 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 17 activity by reason of any medically determinable physical or mental impairment which can be 18 expected to result in death or which has lasted or can be expected to last for a continuous period 19 of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the 20 claimant’s impairment must be “of such severity that he is not only unable to do his previous 21 work[,] but cannot, considering his age, education, and work experience, engage in any other kind 22 of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 23 1382c(a)(3)(B). 24 The Commissioner has established a five-step sequential analysis to determine whether a 25 claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 26 At step one, the Commissioner considers the claimant’s work activity. 20 C.F.R. §§ 27 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” 28 the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 1 416.920(b). 2 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 3 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 4 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant suffers from “any impairment or 5 combination of impairments which significantly limits [his or her] physical or mental ability to do 6 basic work activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 416.920(c). 7 If the claimant’s impairment does not satisfy this severity threshold, however, the Commissioner 8 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). 9 At step three, the Commissioner compares the claimant’s impairment to severe 10 impairments recognized by the Commissioner to be so severe as to preclude a person from 11 engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 12 the impairment is as severe or more severe than one of the enumerated impairments, the 13 Commissioner must find the claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 14 416.920(d). 15 If the severity of the claimant’s impairment does not meet or exceed the severity of the 16 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 17 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 18 ability to perform physical and mental work activities on a sustained basis despite his or her 19 limitations, 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth 20 steps of the analysis. 21 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 22 claimant is capable of performing work that he or she has performed in the past (past relevant 23 work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is capable of 24 performing past relevant work, the Commissioner must find that the claimant is not disabled. 20 25 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is incapable of performing such work, the 26 analysis proceeds to step five. 27 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 28 claimant is capable of performing other work in the national economy. 20 C.F.R. §§ 1 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, the Commissioner must also 2 consider vocational factors such as the claimant’s age, education, and past work experience. 20 3 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is capable of adjusting to other 4 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 5 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis 6 concludes with a finding that the claimant is disabled and is therefore entitled to benefits. 20 7 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 8 The claimant bears the burden of proof at steps one through four. Tackett v. Apfel, 180 9 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 10 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 11 work “exists in significant numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 12 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 13 V. ALJ’S FINDINGS 14 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 15 since March 6, 2016, the alleged onset date. (AR 56). At step two, the ALJ found that Plaintiff 16 has the following severe impairments: asthma, history of coccidioidomycosis (valley fever); 17 cardiac dysrhythmias/supraventricular tachycardia; and a persistent depressive disorder. (AR 56). 18 At step three, the ALJ found that Plaintiff does not have an impairment or combination of 19 impairments that meets or medically equals the severity of a listed impairment. (AR 59). The 20 ALJ then found that Plaintiff has the RFC to 21 perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except she must avoid concentrated exposure to fumes, 22 odors, smoke, dust, gases; must avoid climbing ladders, ropes, and scaffolds; and must avoid unprotected heights and dangerous moving 23 machinery. The claimant can understand, remember, and carry out simple instructions and can maintain concentration, persistence and 24 pace to those simple instructions for 2-hour intervals. She can occasionally interact with coworkers and the general public; and can 25 adapt to simple workplace changes. 26 (AR 62). At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. 27 (AR 71). At step five, the ALJ found that considering Plaintiff’s age, education, work 28 experience, and RFC, there are jobs that exist in significant numbers in the national economy that 1 Plaintiff can perform, including: meat clerk, night cleaner, and laundry worker. (AR 72-73). On 2 that basis, the ALJ concluded that Plaintiff has not been under a disability, as defined in the 3 Social Security Act, from March 6, 2016, through the date of the decision. (AR 73). 4 VI. ISSUES 5 Plaintiff seeks judicial review of the Commissioner’s final decision denying her 6 supplemental security income benefits under Title XVI of the Social Security Act and disability 7 insurance benefits under Title II of the Social Security Act. (Doc. No. 1). Plaintiff raises the 8 following issue for this Court’s review: whether the ALJ erred in failing to include limitations 9 assessed by Dr. Bonilla into the RFC despite finding her opinion persuasive, or provide 10 adequately supported reasons for rejecting those portions of the opinion. (Doc. No. 15 at 4-8). 11 VII. DISCUSSION 12 For claims filed on or after March 27, 2017, new regulations apply that change the 13 framework for how an ALJ must evaluate medical opinion evidence. Revisions to Rules 14 Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 15 2017); 20 C.F.R. § 404.1520c. The new regulations provide that the ALJ will no longer “give 16 any specific evidentiary weight…to any medical opinion(s)…” Revisions to Rules, 2017 WL 17 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 404.1520c(a). Instead, an ALJ must 18 consider and evaluate the persuasiveness of all medical opinions or prior administrative medical 19 findings from medical sources. 20 C.F.R. § 404.1520c(a) and (b). The factors for evaluating the 20 persuasiveness of medical opinions and prior administrative medical findings include 21 supportability, consistency, relationship with the claimant (including length of the treatment, 22 frequency of examinations, purpose of the treatment, extent of the treatment, and the existence of 23 an examination), specialization, and “other factors that tend to support or contradict a medical 24 opinion or prior administrative medical finding” (including, but not limited to, “evidence showing 25 a medical source has familiarity with the other evidence in the claim or an understanding of our 26 disability program’s policies and evidentiary requirements”). 20 C.F.R. § 404.1520c(c)(1)-(5). 27 Supportability and consistency are the most important factors, and therefore the ALJ is 28 required to explain how both factors were considered. 20 C.F.R. § 404.1520c(b)(2). 1 Supportability and consistency are explained in the regulations: 2 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or 3 her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) 4 will be. 5 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical 6 sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 7 8 20 C.F.R. § 404.1520c(c)(1)-(2). The ALJ may, but is not required to, explain how the other 9 factors were considered. 20 C.F.R. § 404.1520c(b)(2). However, when two or more medical 10 opinions or prior administrative findings “about the same issue are both equally well-supported ... 11 and consistent with the record ... but are not exactly the same,” the ALJ is required to explain how 12 “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 13 C.F.R. § 404.1520c(b)(3). 14 The Ninth Circuit has additionally held that the new regulatory framework displaces the 15 longstanding case law requiring an ALJ to provide “specific and legitimate” or “clear and 16 convincing” reasons for rejecting a treating or examining doctor’s opinion. Woods v. Kijakazi, 32 17 F.4th 785 (9th Cir. 2022). Nonetheless, in rejecting an examining or treating doctor’s opinion as 18 unsupported or inconsistent, an ALJ must still provide an explanation supported by substantial 19 evidence. Id. at 792. This means that the ALJ “must ‘articulate ... how persuasive’ [he or she] 20 finds ‘all of the medical opinions’ from each doctor or other source ... and ‘explain how [he or 21 she] considered the supportability and consistency factors’ in reaching these findings.” Id. (citing 22 20 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)). 23 In March 2018, Pauline Bonilla, Psy.D. opined that Plaintiff had moderate limitations in 24 her ability to perform detailed and complex tasks, interact with co-workers and the public, 25 complete a normal workday/work week without interruptions from a psychiatric condition; and 26 deal with stress and changes encountered in the workplace. (AR 684). Dr. Bonilla also opined 27 that the likelihood of Plaintiff emotionally deteriorating in a work environment is moderate. (Id.). 28 The ALJ found Dr. Bonilla’s opinion persuasive because it is consistent with the medical 1 evidence as a whole showing relatively benign findings on exams, and her opinion was supported 2 by objective signs and findings. (AR 70). 3 Plaintiff argues that despite finding Dr. Bonilla’s opinion “persuasive,” the ALJ erred in 4 assessing the RFC because she did not account for the opined moderate limitations in Plaintiff’s 5 ability to complete a normal workday/work week and the likelihood of emotional deterioration in 6 the RFC, or provide the requisite reasons, supported by substantial evidence, for rejecting those 7 limitations. (Doc. No. 15 at 6-8). A claimant’s RFC is “the most [the claimant] can still do 8 despite [his or her] limitations.” 20 C.F.R. § 404.1545(a); 20 C.F .R. § 416.945(a). The RFC 9 assessment is an administrative finding based on all relevant evidence in the record, not just 10 medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). In determining the 11 RFC, the ALJ must consider all limitations, severe and non-severe, that are credible and 12 supported by substantial evidence in the record. (Id.) (RFC determination will be affirmed if 13 supported by substantial evidence). However, an ALJ’s RFC findings need only be consistent 14 with relevant assessed limitations and not identical to them. Turner v. Comm'r of Soc. Sec., 613 15 F.3d 1217, 1222-23 (9th Cir. 2010). 16 Initially, Defendant argues “Plaintiff’s brief misunderstands that severe impairments that 17 cause moderate limitations, do not translate into a complete preclusion from performing tasks.” 18 (Doc. No. 17 at 6 (citing Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007)). However, as 19 recently held in Eastern District of California, that argument does not “resolve the inquiry” 20 because the “question is whether the ALJ, having accepted [the] opinion, appropriately translated 21 the moderate limitations from that opinion into concrete restrictions in the RFC.” Harrell v. 22 Kijakazi, 2021 WL 4429416, at *6-7 (E.D. Cal. Sept. 27, 2021). Next, Defendant argues the ALJ 23 “accounted for these moderate limitations by limiting the type and complexity of the work 24 Plaintiff could do (simple instructions for two-hour intervals), and by noting that Plaintiff could 25 adapt to only simple workplace changes.” Doc. No. 17 at 8 (citing Stubbs-Danielson v. Astrue, 26 539 F.3d 1169, 1174 (9th Cir. 2008) (an ALJ's assessment of a claimant adequately captures 27 restrictions related to concentration, persistence, or pace where the assessment is consistent with 28 restrictions identified in medical testimony)); see also Rounds v. Comm’r of Soc. Sec. Admin., 807 1 F.3d 996, 1006 (9th Cir. 2015) (“the ALJ is responsible for translating and incorporating clinical 2 findings into a succinct RFC”). Plaintiff argues in reply that “the Ninth Circuit and district courts 3 in the Ninth Circuit have held that Stubbs-Danielson does not control in cases where the 4 limitations relate to functional areas other than concentration, persistence, and pace, such as 5 social functioning and attendance.” Doc. No. 18 at 4 (citing Panziera v. Berryhill, 2018 WL 6 278623, at *20 (N.D. Cal. Jan. 3, 2018)). After review of the most recent case law, the Court 7 agrees.

8 [U]npublished district course case law (which is not controlling, but is more factually on point) is split but tends to favor the view that a 9 restriction to simple/routine tasks with limited public contact does not account for the moderate limitations [the doctor] identified in 10 interacting with supervisors and peers, handling work related stressors, maintaining regular attendance, and completing a normal 11 workweek without interruption. The district court case law in support of Defendant’s position is sparser and more outdated. The 12 weight of the more recent case law tends to refute the notion that a limitation to simple/routine tasks with limited public contact 13 adequately accounts for other limitations in social interaction, maintaining attendance, completing a normal workday without 14 interruptions from a psychiatric condition, and handling work related stressors. 15 16 Harrell, 2021 WL 4429416 at *6 (internal citations omitted); see also Macias v. Saul, 2021 WL 17 856423, at *6 (E.D. Cal. Mar. 8, 2021) (collecting cases and holding that a limitation to simple 18 one- or two- step tasks does not account for attendance limitations); Berenisia Madrigal v. Saul, 19 2020 WL 58289, at *5-6 (E.D. Cal. Jan. 6, 2020) (restriction to simple, routine tasks dos not 20 account for assessed limitations in ability to complete a normal workday or workweek without 21 interruptions from psychiatric condition and the ability to deal with stress or changes encountered 22 in the workplace); Millsap v. Kijakazi, 2023 WL 4534341, at *5-6 (E.D. Cal. July 13, 2023) 23 (rejecting argument that limitation to simple, routine tasks in the RFC accounted for moderate 24 mental limitations in opinion the ALJ found persuasive, including ability to complete a normal 25 workday or workweek); Sahyoun v. Saul, 2020 WL 1492661, at *4 (E.D. Cal. Mar. 27, 2020) 26 (rejecting argument that limitation to work involving simple and repetitive tasks adequately 27 captured moderate limitations in maintaining regular attendance, completing a normal workday or 28 work week without interruption from psychiatric condition, and handling work-related stress); but 1 see Messerli v. Berryhill, 2017 WL 3782986, at *11 (E.D. Cal. Aug. 31, 2017) (finding limitation 2 to simple routine tasks adequately accounted for moderate limitations in ability to accept 3 instructions, interact with coworkers and the public, maintain attendance, and complete a normal 4 workday/workweek without interruptions); Schmidt v. Colvin, 2013 WL 5372845, at *17 (E.D. 5 Cal. Sept. 25, 2013) (finding RFC limitation to simple unskilled work adequately captured opined 6 moderate limitations in completing a normal workday and work week). 7 Based on the foregoing, the Court finds the RFC limiting Plaintiff to understanding, 8 remembering, and carrying out simple instructions, maintaining concentration, persistence, and 9 pace for 2-hour intervals, occasionally interacting with coworkers and the general public, and 10 adapting to simple workplace changes, does not account for Dr. Bonilla’s findings of moderate 11 limitations in Plaintiff’s ability to complete a normal workday/work week and the likelihood of 12 emotional deterioration. The ALJ’s failure to either provide reasons, supported by substantial 13 evidence, to reject those limitations, particularly as to her ability to attend a workday/work week, 14 or to properly incorporate those limitations into the assessed RFC, constitutes error. See Robbins 15 v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006) (“an ALJ is not free to disregard properly 16 supported limitations”); Byrd v. Colvin, 2017 WL 980559, at *8 (D. Or. Mar. 14, 2017) (“Here, 17 the ALJ gave great weight to [the] opinion, but the RFC failed to take into account all of the 18 limitations identified by [the doctor], and the ALJ failed to explain why she did not include the 19 limitations in the RFC. As a result, the ALJ erred in formulating the RFC.”). Further, on the 20 record before the Court it cannot conclude that the error was harmless. See Stout v. Comm’r of 21 Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006) (the reviewing court cannot consider an 22 error harmless unless it “can confidently conclude that no reasonable ALJ, when fully crediting 23 the [evidence], could have reached a different disability determination”). 24 On remand, the ALJ must reconsider Dr. Bonilla’s opinion along with the relevant 25 medical evidence, and, if necessary, reassess the RFC. 26 B. Remedy 27 The decision whether to remand for further proceedings or reverse and award benefits is 28 within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1 1989). An immediate award of benefits is appropriate where “no useful purpose would be served 2 by further administrative proceedings, or where the record has been thoroughly developed,” 3 Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the 4 delay caused by remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 5 1280 (9th Cir. 1990); see also Garrison, 759 F.3d at 1021 (noting that a district court may abuse 6 its discretion not to remand for benefits when all of these conditions are met). This policy is 7 based on the “need to expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 8 outstanding issues that must be resolved before a determination can be made, and it is not clear 9 from the record that the ALJ would be required to find a claimant disabled if all the evidence 10 were properly evaluated, remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 11 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 12 The Court finds that further administrative proceedings are appropriate. See Treichler v. 13 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) (remand for benefits is not 14 appropriate when further administrative proceedings would serve a useful purpose). Here, the 15 ALJ improperly considered the medical opinion evidence, which calls into question whether the 16 assessed RFC, and resulting hypothetical propounded to the vocational expert, are supported by 17 substantial evidence. “Where,” as here, “there is conflicting evidence, and not all essential 18 factual issues have been resolved, a remand for an award of benefits is inappropriate.” Treichler, 19 775 F.3d at 1101. On remand, the ALJ should reconsider the medical opinion evidence. The ALJ 20 should order additional consultative examinations and, if appropriate, take additional testimony 21 from medical experts. The ALJ should conduct a new sequential analysis, reassess Plaintiff’s 22 RFC and, if necessary, take additional testimony from a vocational expert which includes all of 23 the limitations credited by the ALJ. 24 Accordingly, it is ORDERED: 25 1. Plaintiff’s Motion for Summary Judgment (Doc. No. 15) is GRANTED. 26 2. Defendant’s Cross-Motion for Summary Judgment (Doc. No. 17) is DENIED. 27 3. Pursuant to sentence four of 42 U.S.C.§ 405(g), the Court REVERSES the 28 Commissioner’s decision and REMANDS this case back to the Commissioner of 1 Social Security for further proceedings consistent with this Order. 2 4. An application for attorney fees may be filed by separate motion within thirty (30) 3 days. 4 5. The Clerk shall enter judgment in favor of the Plaintiff, terminate any pending 5 motions/deadlines, and close this case. 6 Dated: _ November 20, 2023 Kobo Zh foareh Hack 8 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE

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