Suarez v. Saul

• Court: District Court, E.D. Washington
• Decided: November 19, 2019
• Docket: 1:18-cv-03184
• Status: Unknown

Opinion

1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Nov 19, 2019 4 SEAN F. MCAVOY, CLERK 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON

10 FELIPE S., No. 1:18-CV-03184-JTR

11 Plaintiff, ORDER GRANTING PLAINTIFF’S 12 MOTION FOR SUMMARY 13 v. JUDGMENT

14 ANDREW M. SAUL, 15 COMMISSIONER OF SOCIAL SECURITY,1 16

17 Defendant. 18 19 BEFORE THE COURT are cross-motions for summary judgment. ECF 20 Nos. 17, 19. Attorney D. James Tree represents Felipe S. (Plaintiff); Special 21 Assistant United States Attorney Jeffrey R. McClain represents the Commissioner 22 of Social Security (Defendant). The parties have consented to proceed before a 23 magistrate judge. ECF No. 4. After reviewing the administrative record and the 24

25 1Andrew M. Saul is now the Commissioner of the Social Security 26 Administration. Accordingly, the Court substitutes Andrew M. Saul as the 27 Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 28 25(d). 1 briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s Motion for 2 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 3 REMANDS the matter to the Commissioner for additional proceedings pursuant to 4 42 U.S.C. §§ 405(g), 1383(c). 5 JURISDICTION 6 Plaintiff filed applications for Supplemental Security Income (SSI) and 7 Disability Insurance Benefits (DIB) on October 20, 2014, Tr. 99-100, alleging 8 disability since September 20, 2008, Tr. 252, 254. The applications were denied 9 initially and upon reconsideration. Tr. 147-67. Administrative Law Judge (ALJ) 10 Kimberly Boyce held a hearing on June 1, 2017 and heard testimony from Plaintiff 11 and vocational expert Kelly Hember.2 Tr. 58-98. The ALJ issued an unfavorable 12 decision on November 1, 2017. Tr. 28-41. The Appeals Council denied review on 13 July 16, 2018. Tr. 1-4. The ALJ’s November 1, 2017 decision became the final 14 decision of the Commissioner, which is appealable to the district court pursuant to 15 42 U.S.C. §§ 405(g), 1383(c). Plaintiff filed this action for judicial review on 16 September 18, 2018. ECF No. 1. 17 STATEMENT OF FACTS 18 The facts of the case are set forth in the administrative hearing transcript, the 19 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 20 here. 21 Plaintiff was 47 years old at the alleged date of onset. Tr. 252. Plaintiff 22 completed his GED. Tr. 542. He reported chronic anxiety and depression as 23

24 2Throughout the June 1, 2017 hearing, the ALJ and Plaintiff’s counsel 25 referred to a previous hearing and relied on statements from that hearing being 26 made a part of the record. Tr. 61, 63, 92. The record includes a Notice of Hearing 27 for May 22, 2017. Tr. 194. However, there is no transcript from this hearing in 28 the record before the Court. 1 impairments that prevented him from working. Tr. 285. He attempted working 2 after the alleged date of onset, but reported he “was unable to keep [the] position” 3 due to his mental health impairments. Tr. 280. 4 STANDARD OF REVIEW 5 The ALJ is responsible for evaluating witness statements, resolving conflicts 6 in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 7 1035, 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de 8 novo, deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 9 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if 10 it is not supported by substantial evidence or if it is based on legal error. Tackett v. 11 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 12 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 13 another way, substantial evidence is such relevant evidence as a reasonable mind 14 might accept as adequate to support a conclusion. Richardson v. Perales, 402 15 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 16 interpretation, the court may not substitute its judgment for that of the ALJ. 17 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 18 findings, or if conflicting evidence supports a finding of either disability or non- 19 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 20 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 21 evidence will be set aside if the proper legal standards were not applied in 22 weighing the evidence and making the decision. Brawner v. Secretary of Health 23 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 24 SEQUENTIAL EVALUATION PROCESS 25 The Commissioner has established a five-step sequential evaluation process 26 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 27 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 28 through four, the burden of proof rests upon the claimant to establish a prima facie 1 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 2 burden is met once the claimant establishes that physical or mental impairments 3 prevent him from engaging in his previous occupations. 20 C.F.R. §§ 404.1520(a), 4 416.920(a)(4). If the claimant cannot do his past relevant work, the ALJ proceeds 5 to step five, and the burden shifts to the Commissioner to show that (1) the 6 claimant can make an adjustment to other work, and (2) the claimant can perform 7 specific jobs which exist in the national economy. Batson v. Comm’r of Soc. Sec. 8 Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant cannot make an 9 adjustment to other work in the national economy, he is found “disabled”. 20 10 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 11 ADMINISTRATIVE DECISION 12 On November 1, 2017, the ALJ issued a decision finding Plaintiff was not 13 disabled as defined in the Social Security Act from September 20, 2008 through 14 the date of the decision. 15 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 16 activity since September 20, 2008, the alleged date of onset. Tr. 30. 17 At step two, the ALJ determined that Plaintiff had the following severe 18 impairments: depression; posttraumatic stress disorder; personality disorder; and 19 substance addiction disorder. Tr. 31. 20 At step three, the ALJ found that Plaintiff did not have an impairment or 21 combination of impairments that met or medically equaled the severity of one of 22 the listed impairments. Tr. 31. 23 At step four, the ALJ assessed Plaintiff’s residual function capacity and 24 determined he could perform work at all exertional levels with the following 25 limitations:

26 In order to meet ordinary and reasonable employer expectations 27 regarding attendance, production and work place behavior, the claimant 28 can understand, remember and carry out unskilled, routine and repetitive work that can be learned by demonstration, and in which 1 tasks to be performed are predetermined by the employer. He can cope 2 with occasional work setting change and occasional interaction with 3 supervisors, can work in proximity to coworkers, but not in a team or cooperative effort. The claimant can perform work that does not 4 require interaction with the general public as an essential element of the 5 job, but occasional incidental contact with the general public is not 6 precluded. 7 Tr. 33. The ALJ identified Plaintiff’s past relevant work as telephone maintenance 8 mechanic and found that he could not perform this past relevant work. Tr. 40. 9 At step five, the ALJ determined that, considering Plaintiff’s age, education, 10 work experience and residual functional capacity, and based on the testimony of 11 the vocational expert, there were other jobs that exist in significant numbers in the 12 national economy Plaintiff could perform, including the jobs of industrial 13 sweeper/cleaner, “laborer, stores,” and conveyor feeder offbearer. Tr. 40-41. The 14 ALJ concluded Plaintiff was not under a disability within the meaning of the Social 15 Security Act from September 20, 2008, through the date of the ALJ’s decision. Tr. 16 41. 17 ISSUES 18 The question presented is whether substantial evidence supports the ALJ’s 19 decision denying benefits and, if so, whether that decision is based on proper legal 20 standards. Plaintiff first argues that the Appeals Council failed to properly 21 consider the evidence submitted following the hearing. ECF No. 17 at 5-8. 22 Plaintiff then argued that the ALJ erred by failing to properly address the opinion 23 evidence and failing to properly weigh Plaintiff’s symptom statements. Id. at 8-21. 24 DISCUSSION 25 1. Evidence Submitted to Appeals Council 26 Plaintiff argues that the Appeals Council failed to consider or exhibit new 27 evidence that was submitted following the ALJ’s unfavorable decision. ECF No. 28 17 at 5-8. 1 The Appeals Council will only consider additional evidence if the claimant 2 shows good cause for not submitting the evidence prior to the ALJ hearing. 20 3 C.F.R. §§ 404.970(b); 416.1470(b). Specifically, “the Appeals Council receives 4 additional evidence that is new, material, and relates to the period on or before the 5 date of the hearing decision, and there is a reasonable probability that the 6 additional evidence would change the outcome of the decision.” 20 C.F.R. §§ 7 404.970(a)(5); 416.1470(a)(5). 8 “[W]hen a claimant submits evidence for the first time to the Appeals 9 Council, which considers that evidence in denying review of the ALJ’s decision, 10 the new evidence is part of the administrative record, which the district court must 11 consider in determining whether the Commissioner’s decision is supported by 12 substantial evidence.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 13 1159-60 (9th Cir. 2012). “Where the Appeals Council was required to consider 14 additional evidence, but failed to do so, remand to the ALJ is appropriate so that 15 the ALJ can reconsider its decision in light of the additional evidence.” Taylor v. 16 Comm’r, 659 F.3d 1228, 1233 (9th Cir. 2011). When considering the new 17 evidence, the district court first determines whether the Appeals Council was 18 required to consider the new evidence. See id. at 1231. 19 Plaintiff submitted multiple records to the Appeals Council following the 20 unfavorable ALJ decision, including three opinions from Nora Marks, Ph.D. dated 21 January 9, 2015, January 16, 2016, and December 6, 2017. Tr. 20-24, 48-57. 22 A. January 9, 2015 Examination 23 Following a January 9, 2015 examination, Dr. Marks opined that Plaintiff 24 had a severe limitation in the abilities to maintain appropriate behavior in a work 25 setting and set realistic goals and plan independently. Tr. 55. She also opined that 26 Plaintiff had an additional four marked limitations and six moderate limitations in 27 basic work activities. Id. 28 This opinion was a part of the record prior to the ALJ’s hearing. Tr. 757-61, 1 773-77. The ALJ addressed it in detail in her decision and assigned it little weight. 2 Tr. 38. Therefore, the Appeals Council did not need to address this opinion when 3 denying Plaintiff’s request for review. 4 B. January 16, 2016 Examination 5 The Appeals Council was required to address the January 16, 2016 6 examination. Following the examination, Dr. Marks provided the same functional 7 opinion as in January 2015. Tr. 50. 8 While the opinion predated the ALJ’s hearing, it was not submitted until 9 after the ALJ’s decision. At the June 1, 2017 hearing the ALJ inquired whether the 10 record was complete to the best of counsel’s knowledge. Tr. 61. Counsel 11 responded with “I believe it is with the caveats or whatever that I put on the record 12 at our last hearing, yes.” Id. The transcript from this earlier hearing is absent from 13 the record. Therefore, the Court cannot determine if Plaintiff notified the ALJ of 14 the missing evidence that was later submitted to the Appeals Council in accord 15 with 20 C.F.R. §§ 404.935(a); 416.1435(a) (requiring the claimant to notify the 16 ALJ of all evidence five days prior to the hearing). Because of this, the Court 17 cannot determine whether Plaintiff was required to meet the good cause standard 18 set forth in 20 C.F.R. §§ 404.970(b); 416.1470(b) for the late submission of the 19 opinion. 20 However, this opinion is new and material as it addresses a period prior to 21 the ALJ’s decision. The Appeals Council did not exhibit the evidence because it 22 did not show a reasonable probability that it would change the outcome of the 23 decision. Tr. 2. This Court joins others in finding that it is not clear how the 24 Appeals Council determined that the new evidence would not impact the outcome 25 while simultaneously not considering it and not associating it with the record. 26 McLaughlin v. Saul, No. 1:18-cv-00967-SKO, 2019 WL 3202806, at *5 (E.D. Cal. 27 July 16, 2019) citing Deliny S. v. Berryhill, No. CV 17-06328-DFM, 2019 WL 28 1259410, at *1 (C.D. Cal. Mar. 19, 2019) and Mayeda-Williams v. Comm’r of Soc. 1 Sec. Admin., No. 18-0009-HRH, 2019 WL 157918, at *5 (D. Ak. Jan. 10, 2019); 2 Lena J. v. Comm’r of Soc. Sec. Admin., No. C18-6007-RLB-BAT, 2019 WL 3 3291039, at *3 (W.D. Wash. July 1, 2019). Therefore, the Appeals Council erred 4 in failing to associate the evaluation with the record. 5 The Court acknowledges that the entire evaluation and opinion is identical to 6 the January 9, 2015 examination except the signature line has a new evaluation 7 date and signature date. Tr. 78-52. However, because the Appeals Council was 8 also required to consider the opinion following the December 6, 2017 examination, 9 see infra., the Court refers any factual finding regarding the identical evaluations to 10 the ALJ on remand. 11 C. December 6, 2017 Examination 12 The Appeals Council was also required to consider Dr. Marks’ December 13 15, 2017 opinion. See Tr. 20-24. This opinion was penned on December 15, 2017 14 following the December 6, 2017 examination, which was just over a month after 15 the ALJ’s decision. Therefore, there was no requirement that Plaintiff demonstrate 16 good cause for submitting the evidence under 20 C.F.R. §§ 404.935(a); 17 416.1435(a). Plaintiff was required to submit the evidence in accord with 20 18 C.F.R. §§ 404.1512(a); 416.912, which requires that a claimant inform the agency 19 or submit all evidence known to the claimant regarding whether or not he is 20 disabled:

21 This duty is ongoing and requires you to disclose any additional related 22 evidence about which you become aware. This duty applies at each 23 level of the administrative review process, including the Appeals Council level if the evidence relates to the period on or before the date 24 25 o f the administrative law judge hearing decision. 26 20 C.F.R. §§ 404.1512(a); 416.912(a). Here, the evaluation took place after the 27 ALJ’s decision, but it was related to the period on or before the date of the ALJ’s 28 November 1, 2017 decision as required under 20 C.F.R. §§ 404.1512(a); 1 416.912(a). Dr. Marks compared Plaintiff’s evaluation as of December 6, 2017 to 2 his prior evaluation, which predated the ALJ’s decision. See Tr. 20-22 (first 3 stating Dr. Marks’ prior observations then the current observations). Dr. Marks 4 stated that “He was too agitated and depressed, angry and irritable to complete any 5 self-assessments. His conditions are worsening. Trauma-based anxiety will be 6 added to his diagnoses.” Tr. 22. Therefore, this evaluation shows disease 7 progression that can be attributed to the period prior to the ALJ’s decision. See 8 Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) (“reports containing 9 observations made after the period for disability are relevant to assess the 10 claimant’s disability,” and “medical reports are inevitably rendered retrospectively 11 and should not be disregarded solely on that basis.”). Therefore, the Appeals 12 Council should have considered the evidence. 13 The Appeals Council should have addressed the opinion, and the failure to 14 do so justifies a remand. See Taylor, 659 F.3d at 1233. Upon remand, the ALJ 15 will also address the remaining evidence submitted to the Appeals Council, 16 including records from Thomas Jenkins, PA-C dated December 15, 2017 and 17 records from the State of Washington Department of Social and Health Services 18 dated December 18, 2017. Tr. 2. 19 2. Opinion Evidence 20 Plaintiff argues that the ALJ failed to properly consider and weigh the 21 opinions expressed by Nora Marks, Ph.D., Manuel Gomes, Ph.D., Daniel M. 22 Neims, Psy.D., Ana Zapien, B.A., and the Washington Division of Vocational 23 Rehabilitation. ECF No. 17 at 8-17. 24 In weighing medical source opinions, the ALJ should distinguish between 25 three different types of physicians: (1) treating physicians, who actually treat the 26 claimant; (2) examining physicians, who examine but do not treat the claimant; 27 and, (3) nonexamining physicians who neither treat nor examine the claimant. 28 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 1 weight to the opinion of a treating physician than to the opinion of an examining 2 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 3 should give more weight to the opinion of an examining physician than to the 4 opinion of a nonexamining physician. Id. 5 When an examining physician’s opinion is not contradicted by another 6 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, 7 and when an examining physician’s opinion is contradicted by another physician, 8 the ALJ is required to provide “specific and legitimate reasons” to reject the 9 opinion. Lester, 81 F.3d at 830-31. 10 A. Nora Marks, Ph.D. 11 The ALJ addressed Dr. Marks’ opinion following the January 9, 2015 12 examination and assigned it little weight for four reasons: (1) Dr. Marks did not 13 review any records; (2) Plaintiff’s statements during the evaluation were 14 inconsistent with his treatment records; (3) Dr. Marks relied on Plaintiff’s 15 subjective statements; and (4) the opined severity was inconsistent with Plaintiff’s 16 activities, minimal psychiatric observations, and performance on the mental status 17 examinations. Tr. 38-39. 18 Dr. Marks is an examining psychologist who administered the Beck Anxiety 19 Inventory, the Beck Depression Inventory, and a Mental Status Examination. Tr. 20 758, 760-61. The opinion following the January 9, 2015 examination is only the 21 first of three opinions in the record. Considering the case is being remanded for 22 the ALJ to address her other two opinions, the ALJ will also address this initial 23 opinion. 24 B. Daniel M. Neims, Psy.D. 25 Plaintiff also challenged the ALJ’s treatment of the opinion of Dr. Neims. 26 ECF No. 17 at 14-15. 27 Dr. Neims completed a Review of Medical Evidence form for the 28 Washington Department of Social & Health Services on January 24, 2015. Tr. 1 644-45. He found that the diagnoses identified by Dr. Marks were only partially 2 supported by the objective medical evidence and that the severity and functional 3 limitations were not supported by available medical evidence. Tr. 644. He opined 4 that the overall medical evidence only supported an eight-month duration. Tr. 645. 5 The ALJ gave this opinion little weight because it was based on the January 6 9, 2015 examination by Dr. Marks and the resulting opinion. Tr. 39. Dr. Neims 7 only reviewed Dr. Marks’ January 9, 2015 evaluation. Tr. 644. However, since 8 the ALJ is instructed to readdress all of Dr. Marks’ opinions in record, she will also 9 readdress Dr. Neims’ opinion. 10 C. Manuel Gomes, Ph.D. 11 Plaintiff challenged the ALJ’s treatment of Dr. Gomes’ opinion. ECF No. 12 17 at 13-14. 13 On August 14, 2015, Dr. Gomes completed a consultative examination at the 14 request of the Social Security Administration. Tr. 765-72. Dr. Gomes went 15 through eight mental functional abilities and summarized Plaintiff’s statements 16 regarding each functional limitation. Tr. 771-72. 17 The ALJ assigned the evaluation partial weight noting that Dr. Gomes 18 simply “described the claimant’s subjective statements when assessing the 19 claimant’s abilities, which are not fully consistent with the medical evidence of the 20 record,” but that “nothing [in] his opinion indicates the claimant is more 21 significantly limited than I have concluded in the above residual functional 22 capacity.” Tr. 38. Since the case is being remanded for additional proceedings to 23 address the other opinions in the record, the ALJ will readdress Dr. Gomes’ 24 evaluation. 25 D. Ana Zapien, B.A. 26 In April of 2016, Ms. Zapien completed an Outpatient Service 27 Reauthorization form in which she stated that Plaintiff’s “symptoms interfere with 28 him being able to sustain a job.” Tr. 919. The ALJ did not address Ms. Zapien’s 1 statement in her decisions. Tr. 28-41. Plaintiff argues that this failure to address 2 the opinion was an error. ECF No. 17 at 15. 3 Ms. Zapien does not qualify as an acceptable medical source. 20 C.F.R. §§ 4 404.1502, 416.902. However, lay witness testimony is “competent evidence” as to 5 “how an impairment affects [a claimant’s] ability to work.” Stout v. Comm’r, Soc. 6 Sec. Admin., 454 F.3d 1050 (9th Cir. 2006); see also Dodrill v. Shalala, 12 F.3d 7 915, 918-19 (9th Cir. 1993). An ALJ must give “germane” reasons to discount 8 evidence from these “other sources.” Dodrill, 12 F.3d at 919. 9 Here, the ALJ failed to provide any reason, germane or otherwise, for not 10 adopting Ms. Zapien’s statement. Therefore, the ALJ will address Ms. Zapien’s 11 statement on remand. 12 E. Division of Vocational Rehabilitation 13 In March 2013, the Division of Vocational Rehabilitation (DVR) completed 14 a Case Narrative form addressing Plaintiff’s work tolerance, communication, and 15 interpersonal abilities. Tr. 588-96. The ALJ assigned the functional limitations 16 little weight because DVR used different criteria for its findings and the form was 17 not signed by the evaluators. Tr. 39. 18 A determination made by another government agency regarding whether or 19 not a claimant is disabled is not binding on the ALJ. 20 C.F.R. §§ 404.1504; 20 416.904. The Social Security Program Operations Manual System states:

21 We consider evidence of decisions by other governmental agencies and 22 nongovernmental entities as evidence from a nonmedical source. We 23 also consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity’s decision that we 24 receive according to the appropriate category of evidence in DI 25 24503.005 Categories of Evidence. We are not required to adopt a decision by any other governmental agency or a nongovernmental 26 27 e ntity. 28 POMS DI 24503.45. For claims filed before March 27, 2017, the ALJ is required 1 to explain the consideration given to such decisions. Id. Therefore, upon remand, 2 the ALJ will further address the DVR determination and the underlying evidence 3 that was considered in forming that determination. 4 3. Plaintiff’s Symptom Statements 5 Plaintiff contests the ALJ’s determination that Plaintiff’s symptom 6 statements were unreliable. ECF No. 17 at 17-21. 7 It is generally the province of the ALJ to make determinations regarding the 8 reliability of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 9 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 10 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 11 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 12 and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester, 81 13 F.3d at 834. “General findings are insufficient: rather the ALJ must identify what 14 testimony is not credible and what evidence undermines the claimant’s 15 complaints.” Lester, 81 F.3d at 834. 16 The evaluation of a claimant’s symptom statements and their resulting 17 limitations relies, in part, on the assessment of the medical evidence. See 20 18 C.F.R. §§ 404.1529(c); 416.929(c); S.S.R. 16-3p. Therefore, in light of the case 19 being remanded for the ALJ to address the additional medical evidence submitted 20 to the Appeals Council and readdress the opinions in the record, a new assessment 21 of Plaintiff’s subjective symptom statements will be necessary. 22 REMEDY 23 Plaintiff asks the Court to apply the credit-as-true rule and remand this case 24 for an immediate award of benefits. ECF Nos. 17 at 21. 25 The decision whether to remand for further proceedings or reverse and 26 award benefits is within the discretion of the district court. McAllister v. Sullivan, 27 888 F.2d 599, 603 (9th Cir. 1989). Under the credit-as-true rule, where (1) the 28 record has been fully developed and further administrative proceedings would 1 serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 2 for rejecting evidence, whether claimant testimony or medical opinion; and (3) if 3 the improperly discredited evidence were credited as true, the ALJ would be 4 required to find the claimant disabled on remand, the Court remands for an award 5 of benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). But where 6 there are outstanding issues that must be resolved before a determination can be 7 made, and it is not clear from the record that the ALJ would be required to find a 8 claimant disabled if all the evidence were properly evaluated, remand is 9 appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 10 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 11 In this case, the additional medical evidence submitted to the Appeals 12 Council and the missing hearing transcript reveals that the administrative record is 13 not fully developed. Therefore, a remand for additional proceedings is appropriate. 14 The Commissioner will (1) exhibit all the evidence submitted to the Appeals 15 Council, (2) supplement the record with any additional outstanding medical 16 evidence, (3) locate the missing hearing transcript and make it a part of the record 17 if it is available, (4) readdress the opinion evidence in light of the record as a 18 whole, and (5) make a new determination regarding the reliability of Plaintiff’s 19 symptom statements considering the record as a whole. 20 CONCLUSION 21 Accordingly, IT IS ORDERED: 22 1. Defendant’s Motion for Summary Judgment, ECF No. 19, is 23 DENIED. 24 2. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is 25 GRANTED, in part, and the matter is REMANDED to the Commissioner for 26 additional proceedings consistent with this Order. 27 3. Application for attorney fees may be filed by separate motion. 28 The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 2|| and the file shall be CLOSED. 3 DATED November 19, 2019.

° JOHNT.RODGERS) 6 [ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28