Yancey v. Saul

• Court: District Court, E.D. Washington
• Decided: May 4, 2020
• Docket: 1:19-cv-03117
• Status: Unknown

Opinion

1 2 3 FILED IN THE U.S. DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON May 04, 2020 5 6 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK 7 EASTERN DISTRICT OF WASHINGTON

9 JENNIFER Y., No. 1:19-CV-03117-JTR

10 Plaintiff, ORDER GRANTING, IN PART, 11 PLAINTIFF’S MOTION FOR 12 v. SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL 13 ANDREW M. SAUL, PROCEEDINGS 14 COMMISSIONER OF SOCIAL SECURITY1, 15

16 Defendant.

17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 15, 16. Attorney D. James Tree represents Jennifer Y. (Plaintiff); Special 19 Assistant United States Attorney Franco Becia represents the Commissioner of 20 Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 8. After reviewing the administrative record and the 22 briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s Motion for 23 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 24

25 1 Andrew 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 REMANDS the matter to the Commissioner for additional proceedings pursuant to 2 42 U.S.C. § 405(g). 3 JURISDICTION 4 Plaintiff filed an application for Supplemental Security Income on July 20, 5 2015, alleging disability since June 1, 20142, due to fibromyalgia, arthritis, and 6 depression. Tr. 74. The application was denied initially and upon reconsideration. 7 Tr. 93-96, 101-07. Administrative Law Judge (ALJ) Wayne Araki held a hearing 8 on May 15, 2018, Tr. 40-72, and issued an unfavorable decision on June 20, 2018, 9 Tr. 15-27. Plaintiff requested review of the ALJ’s decision by the Appeals 10 Council. Tr. 192. The Appeals Council denied the request for review on March 11 29, 2019. Tr. 1-5. The ALJ’s June 2018 decision is the final decision of the 12 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 13 405(g). Plaintiff filed this action for judicial review on May 28, 2019. ECF No. 1. 14 STATEMENT OF FACTS 15 Plaintiff was born in 1972 and was 43 years old as of the filing of her 16 application. Tr. 26. She has a high school diploma and a work history consisting 17 primarily of self-employment as a house cleaner. Tr. 44, 63. She stopped cleaning 18 houses when she was no longer physically capable of the work. Tr. 62-63. In late 19 2014 she was diagnosed with fibromyalgia. Tr. 405. In August 2015 she broke 20 her shoulder when a horse slammed her into a tree. Tr. 384, 422. The fracture 21 healed, but she continued to have pain in the years following. Tr. 486, 661, 759, 22 790, 904. She has also been diagnosed with various mental health impairments 23 and has reported brain fog from fibromyalgia impacting her memory. Tr. 58-59, 24 61, 331, 785-86, 849. 25 STANDARD OF REVIEW 26 27 2 Plaintiff later amended her alleged onset date to the date of filing of her 28 application. 1 The ALJ is responsible for determining credibility, resolving conflicts in 2 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 3 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 4 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 5 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 6 only if it is not supported by substantial evidence or if it is based on legal error. 7 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 8 defined as being more than a mere scintilla, but less than a preponderance. Id. at 9 1098. Put another way, substantial evidence is such relevant evidence as a 10 reasonable mind might accept as adequate to support a conclusion. Richardson v. 11 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 12 rational interpretation, the Court may not substitute its judgment for that of the 13 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 14 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 15 administrative findings, or if conflicting evidence supports a finding of either 16 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 17 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 18 supported by substantial evidence will be set aside if the proper legal standards 19 were not applied in weighing the evidence and making the decision. Brawner v. 20 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 21 SEQUENTIAL EVALUATION PROCESS 22 The Commissioner has established a five-step sequential evaluation process 23 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 24 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 25 proof rests upon the claimant to establish a prima facie case of entitlement to 26 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 27 claimant establishes that a physical or mental impairment prevents the claimant 28 from engaging in past relevant work. 20 C.F.R. § 416.920(a)(4). If a claimant 1 cannot perform past relevant work, the ALJ proceeds to step five, and the burden 2 shifts to the Commissioner to show (1) the claimant can make an adjustment to 3 other work; and (2) the claimant can perform specific jobs that exist in the national 4 economy. Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193- 5 1194 (2004). If a claimant cannot make an adjustment to other work in the 6 national economy, the claimant will be found disabled. 20 C.F.R. § 7 416.920(a)(4)(v). 8 ADMINISTRATIVE DECISION 9 On June 20, 2018, the ALJ issued a decision finding Plaintiff was not 10 disabled as defined in the Social Security Act. Tr. 15-27. 11 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 12 activity since the application date. Tr. 17. 13 At step two, the ALJ determined Plaintiff had the following severe 14 impairment: fibromyalgia. Id. 15 At step three, the ALJ found Plaintiff did not have an impairment or 16 combination of impairments that met or medically equaled the severity of one of 17 the listed impairments. Tr. 20-21. 18 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 19 she could perform a range of light work, with the following limitations:

20 I find the claimant has the residual functional capacity to lift/carry 20 21 pounds occasionally and 10 pounds frequently. She has no sitting 22 restrictions. She should not climb ladders, ropes, or scaffolds. She can frequently climb stairs and ramps. She can frequently balance, 23 stoop, kneel, crouch, and crawl. She can occasionally reach overhead 24 with her left upper extremity (non-dominant). She should not work at exposed heights and she should not operate heavy equipment. She 25 can otherwise have occasional exposure to hazards. She should not 26 use high impact tools such as nail guns or jackhammers, otherwise occasional exposure to vibrations. She can have occasional exposure 27 to extreme heat or to extreme cold. 28 1 Tr. 21. 2 At step four, the ALJ found Plaintiff was capable of performing her past 3 relevant work as a housecleaner. Tr. 26. 4 Despite making dispositive step four findings, the ALJ alternatively found at 5 step five that, considering Plaintiff’s age, education, work experience and residual 6 functional capacity, there were jobs that existed in significant numbers in the 7 national economy that Plaintiff could perform, specifically identifying the 8 representative occupations of cashier, fast food worker, and garment sorter. Tr. 9 26-27. 10 The ALJ thus concluded Plaintiff was not under a disability within the 11 meaning of the Social Security Act at any time from the date the application was 12 filed through the date of the decision. Tr. 27. 13 ISSUES 14 The question presented is whether substantial evidence supports the ALJ’s 15 decision denying benefits and, if so, whether that decision is based on proper legal 16 standards. 17 Plaintiff contends the Commissioner erred by (1) improperly evaluating the 18 medical opinion evidence; (2) improperly rejecting Plaintiff’s subjective symptom 19 testimony; and (3) improperly finding depression to be a non-severe impairment. 20 DISCUSSION 21 1. Plaintiff’s subjective statements 22 Plaintiff contends the ALJ erred by improperly rejecting her subjective 23 complaints. ECF No. 15 at 18-21. 24 It is the province of the ALJ to make credibility determinations. Andrews v. 25 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 26 supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 27 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 28 medical impairment, the ALJ may not discredit testimony as to the severity of an 1 impairment merely because it is unsupported by medical evidence. Reddick v. 2 Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of 3 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 4 “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 5 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General findings are 6 insufficient: rather the ALJ must identify what testimony is not credible and what 7 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 8 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 9 The ALJ concluded Plaintiff’s medically determinable impairments could 10 reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 11 statements concerning the intensity, persistence and limiting effects of those 12 symptoms were not entirely consistent with the medical evidence and other 13 evidence in the record. Tr. 21. The ALJ found: (1) Plaintiff’s allegations of 14 severe restrictions appeared out of proportion to the longitudinal physical exams; 15 (2) radiology records were generally unremarkable; (3) the record contained 16 evidence of symptom magnification; and (4) Plaintiff reported engaging in 17 activities that detracted from the reliability of her pain complaints. Tr. 22-23. 18 a. Symptom magnification 19 In support of his assertion that the record contains evidence of symptom 20 magnification, the ALJ cited to a physical exam on July 20, 2016, where an 21 examining doctor noted that Plaintiff “demonstrated give-way weakness.” Tr. 23 22 (citing tr. 777, duplicated at 644). 23 Defendant argues this note is affirmative evidence of malingering, and that 24 the ALJ thus was not required to offer clear and convincing reasons for rejecting 25 Plaintiff’s subjective testimony. ECF No. 16 at 2-4. Defendant argues that the 26 notation of give-way weakness suggests Plaintiff’s excessive presentation of pain 27 could not be attributed entirely to her impairment, and the ALJ thus correctly 28 found Plaintiff exaggerated her limitations. Id. at 4. 1 The Court finds this single notation to be insufficient to support a finding of 2 “symptom magnification,” much less “malingering.” The examining doctor did 3 not indicate that he believed Plaintiff was exaggerating or malingering and did not 4 explain the significance of the finding of give-way weakness. Tr. 644. He stated 5 Plaintiff was cooperative throughout the examination, and he concluded her 6 symptoms were likely referred from fibromyalgia. Id. The ALJ drew a conclusion 7 from this note that is not supported by substantial evidence. Because there is no 8 affirmative evidence of malingering, the ALJ was required to offer clear and 9 convincing reasons for discounting Plaintiff’s reports. 10 b. Activities 11 A claimant’s daily activities may support an adverse credibility finding if the 12 claimant’s activities contradict her other testimony. Orn v. Astrue, 495 F.3d 625, 13 639 (9th Cir. 2007). 14 The ALJ found that a record notation of Plaintiff doing some digging in her 15 yard to fix an irrigation problem was inconsistent with her allegations of 16 widespread pain and a sedentary lifestyle. Tr. 23. The ALJ cited to a treatment 17 note from August 30, 2017, where the activity was reported. Tr. 745. The full 18 record indicates Plaintiff reported she “was bending and something snapped and 19 was painful,” and that she thought the yard work may have something to do with it. 20 Id. This single incident of additional activity, leading to an exacerbation of her 21 pain and limitations is consistent with Plaintiff’s reports, not contrary to them. She 22 testified that she does some minimal chores around the house that she is physically 23 capable of, such as dusting and planting some flowers. Tr. 53, 662. She also 24 reported she has good days and bad days, and that additional exertion one day may 25 render her incapacitated for hours or days afterwards. Tr. 327, 661, 761. The ALJ 26 did not identify any ongoing activities that are inconsistent with Plaintiff’s 27 symptom testimony. 28 c. Objective evidence 1 The ALJ found Plaintiff’s allegations appeared to be out of proportion with 2 multiple exam findings that were normal, along with unremarkable imaging. Tr. 3 22-23. 4 An ALJ may not discredit testimony as to the severity of an impairment 5 merely because it is unsupported by medical evidence. Reddick v. Chater, 157 6 F.3d 715, 722 (9th Cir. 1998). Because none of the ALJ’s other reasons for 7 discounting Plaintiff’s subjective statements are clear and convincing, this reason 8 alone is insufficient. 9 The Court also takes note that fibromyalgia is not a condition that generally 10 lends itself to extensive objective findings, particularly on imaging. See generally, 11 Social Security Ruling 12-2p; Revels v. Berryhill, 874 F.3d 648, 656-57 (9th Cir. 12 2017). It is not clear that the normal or unremarkable exam findings identified by 13 the ALJ have any bearing on the existence or severity of Plaintiff’s fibromyalgia. 14 2. Medical opinions 15 Plaintiff argues the ALJ erred in evaluating the medical opinion evidence by 16 improperly rejecting the opinions from Dr. Hunte, Dr. Drenguis, and Dr. Cline. 17 ECF No. 15 at 4-18. 18 When a treating or examining physician’s opinion is contradicted by another 19 physician, the ALJ must offer “specific and legitimate” reasons to reject the 20 opinion. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Lester v. Chater, 21 81 F.3d 821, 830-31 (9th Cir. 1995). The specific and legitimate standard can be 22 met by the ALJ setting out a detailed and thorough summary of the facts and 23 conflicting clinical evidence, stating his interpretation thereof, and making 24 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 25 a. Dr. Hunte 26 Plaintiff’s treating doctor, Dr. Esther Hunte, completed a medical source 27 statement in August 2017 regarding Plaintiff’s conditions. Tr. 648-49. She noted 28 Plaintiff’s diagnoses included fibromyalgia and major depression, with symptoms 1 of all over body pain, joint stiffness and pain, and depression with memory 2 difficulties. Tr. 648. Her prognosis was fair, with Dr. Hunte noting they were still 3 working on getting Plaintiff more functional, but “so far she has deteriorated more 4 and has completely been unable to work.” Tr. 649. She predicted that full time 5 work would aggravate Plaintiff’s pain, and she would be likely to miss four or 6 more days of work per month. Id. 7 The ALJ gave this opinion little weight. Tr. 20, 25. The ALJ found the 8 opinion to be inconsistent with benign mental status exams and objective physical 9 findings and Dr. Hunte’s own treatment records, based largely on Plaintiff’s self- 10 reports, and lacking a function-by-function analysis of Plaintiff’s abilities. Tr. 20, 11 25. 12 An ALJ may consider an opinion’s overall consistency with the record as a 13 whole, 20 C.F.R. § 416.927(c)(4), but the ALJ must consider the entire record, and 14 not just the portions that support the conclusion. As discussed above, fibromyalgia 15 is not a condition that is often accompanied by significant objective findings. The 16 normal objective physical findings noted by the ALJ do not have a clear 17 connection to fibromyalgia, particularly imaging. Additionally, while there are a 18 number of normal exam findings, the record does contain objective findings 19 supportive of Dr. Hunte’s opinion, including positive trigger point testing (tr. 405, 20 664, 762), tenderness in various parts of her body (tr. 463, 607, 609, 664, 904), 21 limited range of motion (tr. 485, 607, 609, 904, 946), and objective findings of 22 swelling and nodules in her hands (tr. 528, 664, 768, 772, 946, 948, 959). The 23 ALJ’s selective citations of the normal exam findings are not representative of the 24 record as a whole. Similarly, with respect to mental status findings, the ALJ 25 omitted from his summary the instances where Plaintiff presented with depressed 26 or anxious mood, constricted or flattened affect, and other objective findings of 27 depression. Tr. 663, 791, 795, 798, 802, 812, 820, 826, 832, 835, 837, 838-40, 28 851-52, 855-58, 860-61. The ALJ’s finding that Dr. Hunte’s opinion is 1 inconsistent with benign objective findings is not supported by substantial 2 evidence. 3 If a treating provider’s opinions are based “to a large extent” on an 4 applicant’s self-reports and not on clinical evidence, and the ALJ finds the 5 applicant not credible, the ALJ may discount the treating provider’s opinion. 6 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.2008). However, when an 7 opinion is not more heavily based on a patient’s self-reports than on clinical 8 observations, there is no evidentiary basis for rejecting the opinion. Ghanim v. 9 Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). The Court finds the ALJ failed to 10 offer sufficient reasons for rejecting Plaintiff’s subjective reports, and identified no 11 evidence that indicates Dr. Hunte’s opinion is more based on Plaintiff’s self- 12 reports than her multiple-year treatment relationship and clinical observations. 13 While the ALJ is correct that Dr. Hunte did not provide a function-by- 14 function assessment of all of Plaintiff’s abilities, the opinion does include the 15 specific limitation that Plaintiff would miss four or more days of work per month. 16 Tr. 649. The vocational expert testified that such a limitation would prevent 17 someone from being competitively employable. Tr. 68-69. 18 The ALJ therefore failed to offer specific and legitimate reasons for 19 discounting the opinion from Plaintiff’s treating physician, Dr. Hunte. On remand, 20 the ALJ will reconsider Dr. Hunte’s opinion along with the rest of the record. 21 b. Dr. Drenguis 22 Plaintiff attended a consultative physical exam with Dr. William Drenguis 23 on February 23, 2018. Tr. 653-65. Dr. Drenguis diagnosed Plaintiff with diffuse 24 myalgias consistent with fibromyalgia; left shoulder internal derangement; and 25 early degenerative joint disease of the hands. Tr. 664-65. In his written report he 26 concluded Plaintiff was capable of standing or walking for at least four hours, and 27 sitting for four hours; she could lift or carry 20 pounds occasionally and 10 pounds 28 frequently; she could frequently balance and occasionally engage in other postural 1 activities; she could frequently use her hands and arms, but she could never reach 2 with her left arm; and she had some environmental limitations. Tr. 665. In an 3 attached medical source statement check box form, Dr. Drenguis offered slightly 4 different limitations, including that Plaintiff was limited to no more than 30 5 minutes of sitting, standing, or walking at a time (tr. 655), and could occasionally 6 push, pull and reach laterally with the left arm (tr. 656). 7 The ALJ gave Dr. Drenguis’ opinion partial weight, noting it was somewhat 8 consistent with the longitudinal evidence. Tr. 24. However, the ALJ rejected most 9 of the limitations on the left upper extremity, finding them inconsistent with 10 generally unremarkable physical exams, the imaging, and Dr. Drenguis’ own 11 exam, and finding them to be largely based on Plaintiff’s unreliable self-reports. 12 Id. 13 Plaintiff objects to the ALJ’s rationale, arguing the ALJ ignored findings 14 throughout the record and within Dr. Drenguis’ report that supported the 15 limitations, and noting that there was no evidence the doctor relied more heavily 16 on Plaintiff’s reports than on his objective findings and medical judgment. ECF 17 No. 15 at 8-11. Plaintiff additionally points out the ALJ offered no rationale for 18 rejecting Dr. Drenguis’ opinion regarding Plaintiff only standing, walking, or 19 sitting for 30 minutes at a time. Tr. 12-13. Defendant restates the ALJ’s findings 20 and asserts they are sufficient, arguing Plaintiff is simply asking for an alternative 21 interpretation of the evidence. ECF No. 16 at 18-20. 22 The Court finds the ALJ erred in failing to offer any reasons for discounting 23 Dr. Drenguis’ opinion with respect to the limitations on sitting, standing, and 24 walking. Tr. 24. The ALJ specifically noted that he was not adopting Dr. 25 Drenguis’ opinion regarding the left upper extremity, and all of his reasons relate 26 to the findings regarding Plaintiff’s shoulder and arm. Id. He failed to 27 acknowledge the additional limitations on sitting, standing, and walking contained 28 in the check-box form. Id. 1 This was not a clearly harmless error. While the ALJ stated at the end of the 2 decision that the vocational expert identified additional jobs consistent with Dr. 3 Drenguis’ RFC, the limitations posed at hearing were only those in the narrative 4 report, and not those contained in the supplemental check-box form. Tr. 69-71. 5 Social Security Ruling 83-12 notes that most jobs have “ongoing work processes 6 which demand that a worker be in a certain place or posture for at least a certain 7 length of time to accomplish a certain task.” It goes on to direct that “in cases of 8 unusual limitation of ability to sit or stand, a VS [vocational specialist] should be 9 consulted to clarify the implications for the occupational base.” Social Security 10 Ruling 83-12. Based on the record before the Court, it is not clear that the jobs 11 found at step four and step five could still be performed with such a sit-stand 12 option. 13 On remand, the ALJ will reassess Dr. Drenguis’ entire opinion. 14 c. Dr. Cline 15 Plaintiff underwent two consultative psychological exams with Dr. Rebekah 16 Cline, one in 2014 and one in 2015. Tr. 326-35. In 2014, Dr. Cline found Plaintiff 17 to be markedly impaired in her ability to communicate and perform effectively in a 18 work setting and in her ability to maintain appropriate behavior in a work setting. 19 Tr. 333. She otherwise found Plaintiff’s impairments to be no more than moderate. 20 Tr. 333-34. In 2015, Dr. Cline found Plaintiff’s limitations to be reduced, finding 21 no more than moderate impairment in any area, and opined she “appears ready for 22 a referral to DVR [Department of Vocational Rehabilitation] at this time.” Tr. 23 328-29. 24 The ALJ gave these opinions little weight, finding them inconsistent with 25 the longitudinal evidence and overly reliant on Plaintiff’s self-reports. Tr. 20. He 26 additionally noted Dr. Cline reviewed only a few case notes prior to the 2014 27 exam, and reviewed no additional records prior to the 2015 exam. Id. He further 28 found that there were discrepancies between Plaintiff’s presentation to Dr. Cline 1 and her later performance on an exam with Dr. Lewis, which detracted from the 2 reliability of Dr. Cline’s opinions. Id. 3 An ALJ may reasonably consider an opinion’s consistency with the rest of 4 the record, and a source’s familiarity with that record. 20 C.F.R. § 416.927(c). 5 However, as discussed above with respect to Dr. Hunte, the ALJ’s summary of the 6 record omitted numerous later records that indicated Plaintiff had on-going issues 7 with her mental health. As this claim is being remanded for further consideration 8 of other medical evidence, the ALJ will also reconsider Dr. Cline’s opinions. 9 3. Depression as a non-severe impairment 10 Plaintiff argues the ALJ erred in finding depression to be a non-severe 11 impairment. ECF No. 15 at 21. 12 The step-two analysis is “a de minimis screening device used to dispose of 13 groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). An 14 impairment is “not severe” if it does not “significantly limit” the ability to conduct 15 “basic work activities.” 20 C.F.R. § 416.922(a). “An impairment or combination 16 of impairments can be found not severe only if the evidence establishes a slight 17 abnormality that has no more than a minimal effect on an individual’s ability to 18 work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (internal quotation 19 marks omitted). 20 As the Court finds further evaluation of the evidence and medical opinions is 21 warranted, on remand the ALJ will reevaluate each of the five steps in the 22 sequential evaluation process. 23 CONCLUSION 24 Plaintiff argues the decision should be reversed and remanded for the 25 payment of benefits. The Court has the discretion to remand the case for additional 26 evidence and findings or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 27 (9th Cir. 1996). The Court may award benefits if the record is fully developed and 28 further administrative proceedings would serve no useful purpose. Id. Remand is appropriate when additional administrative proceedings could remedy defects. 2|| Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 3|| finds that further development is necessary for a proper determination to be made. 4 The ALJ’s decision is not supported by substantial evidence. On remand, 5|| the ALJ shall reevaluate the medical evidence and Plaintiffs subjective 6|| complaints, making findings on each of the five steps of the sequential evaluation 7|| process, obtain supplemental testimony from a vocational expert as needed, and take into consideration any other evidence or testimony relevant to Plaintiff’s disability claim. 10 Accordingly, IT IS ORDERED: 11 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is 12|} GRANTED, IN PART. 13 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 14|| DENIED. 15 3. The matter is REMANDED to the Commissioner for additional 16]|| proceedings consistent with this Order. 17 4. An application for attorney fees may be filed by separate motion. 18 The District Court Executive is directed to file this Order and provide a copy 19]| to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 21 IT IS SO ORDERED. 22 DATED May 4, 2020.

JOHNT.RODGERS 25 UNITED STATES MAGISTRATE JUDGE 26 27 28