Hernandez v. Colvin

Filing 18

ORDERED that the Clerk of Court remand this action back to the ALJ for further proceedings. Signed by Judge G Murray Snow on 1/13/17. (EJA)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Leticia Anna Hernandez, No. CV-15-02273-PHX-GMS Plaintiff, 10 11 v. 12 ORDER Carolyn W. Colvin, 13 Defendant. 14 15 Pending before the Court is Plaintiff Leticia Anna Hernandez’s appeal of the 16 Social Security Administration’s decision to deny her benefits. (Doc. 1.) For the reasons 17 set forth below, the Court remands for further proceedings. BACKGROUND 18 19 On March 9, 2012, Leticia Anna Hernandez applied for disability insurance 20 benefits and supplemental security income, alleging a disability onset date of June 1, 21 2011. 22 reconsideration. (Tr. 122–36.) She then appealed to an Administrative Law Judge 23 (“ALJ”). (Tr. 137.) The ALJ conducted a hearing on the matter on December 3, 2013. 24 (Tr. 31.) (Tr. 63–64.) Hernandez’s claim was denied both initially and upon 25 In evaluating whether Hernandez was disabled, the ALJ undertook the five-step 26 sequential evaluation for determining disability.1 At step one, the ALJ determined that 27 1 28 The five-step sequential evaluation of disability is set out in 20 C.F.R. § 404.1520 (governing disability insurance benefits) and 20 C.F.R. § 416.920 (governing supplemental security income). Under the test: 1 Hernandez had not engaged in substantial gainful activity since her alleged onset date. 2 (Tr. 14.) 3 impairments of “migraine; headache; [and] lumbar disc disease.” (Id.) At step three, the 4 ALJ determined that none of these impairments, either alone or in combination, met or 5 equaled any of the Social Security Administration’s listed impairments. (Tr. 18.) 6 7 At step two, the ALJ determined that Hernandez suffered from severe The ALJ then made the following determination of Hernandez’s residual functional capacity (“RFC”).2 8 [Hernandez] has the residual functional capacity to perform light level work; she cannot use ladders, ropes or scaffolds; frequently use ramps or stairs, balance, kneel, crouch and crawl; she should avoid concentrated exposure to noise, i.e., limited to the noise level in a normal office setting; she should avoid concentrated exposure to vibration; she should avoid even moderate exposure to hazards, being commonly defined as either unprotected heights [or] dangerous machinery; she can attend and concentrate in 2-hour blocks of time throughout an 8-hour workday with the 2 customary 10-15 [minute] breaks and the customary 30–60 minutes lunch period. 9 10 11 12 13 14 (Tr. 19.) The ALJ therefore found that Hernandez retained the RFC to perform her past 15 relevant work as a cashier, data entry clerk, file clerk and collector. (Tr. 22.) In the 16 alternative, at step five, the ALJ determined that there were a significant number of other 17 jobs in the national economy that Hernandez could perform despite her limitations. (Id.) 18 19 A claimant must be found disabled if she proves: (1) that she is not presently engaged in a substantial gainful activity[,] (2) that her disability is severe, and (3) that her impairment meets or equals one of the specific impairments described in the regulations. If the impairment does not meet or equal one of the specific impairments described in the regulations, the claimant can still establish a prima facie case of disability by proving at step four that in addition to the first two requirements, . . . she is not able to perform any work that she has done in the past. Once the claimant establishes a prima facie case, the burden of proof shifts to the agency at step five to demonstrate that the claimant can perform a significant number of other jobs in the national economy. This step-five determination is made on the basis of four factors: the claimant’s residual functional capacity, age, work experience and education. 20 21 22 23 24 25 26 27 Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal citations and quotations omitted). 28 2 RFC is the most a claimant can do despite the limitations caused by her impairments. See SSR 96-8p, 1996 WL 374184 (July 2, 1996). -2- 1 On September 10, 2015, the Appeals Council declined to review the decision. (Tr. 2 1–5.) Hernandez filed the complaint underlying this action on November 10, 2015, 3 seeking this Court’s review of the ALJ’s denial of benefits. (Doc. 1.) The matter is now 4 fully briefed before this Court. (Docs. 15, 16, 17.) 5 6 DISCUSSION I. Standard of Review 7 A reviewing federal court need only address the issues raised by the claimant in 8 the appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 9 2001). A federal court may set aside a denial of disability benefits only if that denial is 10 either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 11 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less 12 than a preponderance.” 13 evidence which, considering the record as a whole, a reasonable person might accept as 14 adequate to support a conclusion.” Id. (quotation omitted). Id. (quotation omitted). “Substantial evidence is relevant 15 The ALJ is responsible for resolving conflicts in testimony, determining 16 credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 17 1995). 18 interpretation, we must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. 19 Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the 20 reviewing court must resolve conflicts in evidence, and if the evidence can support either 21 outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. 22 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted). However, the Court 23 “must consider the entire record as a whole and may not affirm simply by isolating a 24 ‘specific quantum of supporting evidence.’” Id. (citing Hammock v. Bowen, 879 F.2d 25 498, 501 (9th Cir. 1989)). Nor may the Court “affirm the ALJ’s . . . decision based on 26 evidence that the ALJ did not discuss.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 27 2003). 28 /// “When the evidence before the ALJ is subject to more than one rational -3- 1 II. 2 3 Analysis Hernandez argues that the ALJ erred by (A) effectively rejecting the opinion of treating physician Dr. Doorani and (B) rejecting Hernandez’s own symptom testimony. 4 A. 5 Neurologist Tariq Doorani completed a headache questionnaire in July 2012. The 6 questionnaire noted that Hernandez suffered from migraine headaches (parenthetically 7 described as “severe”), occurring five times a month for an hour at a time, with a pain 8 level of 10/10, affecting Hernandez’s concentration, attention, memory, and capacity to 9 work, and likely to lead to an average of four absences from work per month. (Tr. 255.) 10 The ALJ gave this assessment “appropriate but limited weight”3 for the following 11 reasons: 12 Dr. Doorani It is conclusory in noting the claimant’s symptoms. The claimant’s limited capacity to work and possible days of absence are not supported by Dr. Doorani’s contemporaneous treatment notes. Further, the claimant’s most recent neurologist, Dr. George Wang[,] notes no functional restrictions in his notes through August 2013. (Exhibit 17F, pp. 1-2.) Pain management specialist Eric Boyd reported in November 2013 that the claimant had no work restrictions in place. (Exhibit 20F, p. 9.) In addition, a State agency medical consultant raised the issue that Dr. Doorani’s opinion looks as if it was written in the same handwriting as the claimant. 13 14 15 16 17 A State agency physician reviewed the record in April 2013 and found the claimant capable of a range of light exertional work in April 2013. (Exhibit 6A, pp. 11-12.) The capability for light work is supported by the clinical and diagnostic findings throughout the record as discussed in detail above. 18 19 20 (Tr. 21–22.) Hernandez argues that each of this reasons is either factually unsupported or 21 legally insufficient, leaving the ALJ with no basis for rejecting Dr. Doorani’s opinion. 22 Dr. Doorani was a treating physician. (See Tr. 34–35.) The opinion of a treating 23 physician is given more weight than those of non-treating and non-examining physicians. 24 See 20 C.F.R. § 404.1527; Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); Lester v. 25 Chater, 81 F.3d 821, 830 (9th Cir. 1995). 26 uncontradicted, an ALJ must provide “clear and convincing” reasons, supported by If a treating physician’s opinion is 27 3 28 Hernandez argues that the ALJ “effectively rejected” Dr. Doorani’s opinion. The Court agrees, as the ALJ did not integrate any of Dr. Doorani’s asserted limitations into his RFC determination. (Tr. 21–22.) -4- 1 substantial evidence, to reject it. Ghanim v. Colvin, 763 F.3d 1154, 1160–61 (9th Cir. 2 2014). 3 “specific and legitimate” reasons, supported by substantial evidence, to reject it. Id. If a treating physician’s opinion is contradicted, an ALJ must still provide 4 Here, Dr. Doorani’s opinion was not contradicted, and the ALJ needed to provide 5 clear and convincing reasons to reject it. Defendant contends otherwise, citing the 6 opinions of Dr. George Wang and Dr. Eric Boyd. (See Doc. 16 at 3 n.1.) But neither 7 doctor’s findings contradict those of Dr. Doorani. Dr. Wang reported on June 20, 2013 8 that Hernandez had a history of headaches, presented that day with a headache, and had 9 been having headaches since early 2011—“throbbing” headaches, with “nausea and 10 vomiting,” along with “photophobia and phonophobia,” “dizziness,” and “visual 11 disturbances.” (Tr. 671.) To be sure, he rated Hernandez’s pain as a 6–8/10, instead of 12 the 10/10 to which Dr. Doorani opined. (Id.) But a difference in degree on the high end 13 of a subjective pain scale, done by two different doctors a year apart does not in this 14 Court’s judgment qualify as a contradiction. 15 Dr. Boyd is, as the ALJ noted, a pain management specialist. According to the 16 records of Dr. Sunita Gupta, a primary care physician who treated Hernandez for at least 17 twenty-two months, (Tr. 559–606, 689–707), Hernandez was referred out to Dr. Boyd to 18 obtain a “second opinion regarding chronic back and neck pain.” (Tr. 689.) Dr. Boyd’s 19 evaluation correspondingly focuses on Hernandez’s “all over body pain”—the severity of 20 which was noted as “10/10 currently, 9/10 at best, 10/10 at worst, 10/10 usually, 10/10 at 21 rest, and 10/10 with activity.” (Tr. 715.) A finding of severe body pain, from a pain 22 specialist who was called in to assess body pain and not headaches, does not contradict 23 another doctor’s finding of severe headaches.4 24 The ALJ noted Dr. Boyd’s observation that Hernandez had no work restrictions in 25 place. (Tr. 21, 716.) But in the context of Dr. Boyd’s report, focusing on Hernandez’s 26 body pain, this does not contradict Dr. Doorani’s opinion, especially since Dr. Boyd’s 27 4 28 Of note, Dr. Gupta also referred Hernandez to Dr. Wang, specifically to assess Hernandez’s headaches. (Tr. 671.) This underlines the point that Dr. Boyd appears to have been specifically focused on one set of Hernandez’s symptoms—her body pain. -5- 1 observation came in the “Family and Social History” of his report and reads as 2 descriptive, rather than prescriptive. In other words, it does not appear that Dr. Boyd was 3 expressing an opinion as to whether Hernandez’s condition merited work restrictions; 4 rather, he was merely noting that no doctor had placed Hernandez—who was not working 5 at the time—under work restrictions. 6 The ALJ also cited to the report of a State agency physician, finding Hernandez 7 capable of a range of “light exertional work.” But the conclusions of a non-examining 8 physician are not alone sufficient to reject the opinion of a treating physician. See Pitzer 9 v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990). Moreover, an opinion considering 10 exertional limitations, without considering the non-exertional limitations caused by 11 Hernandez’s headaches, fails to contradict the findings that Dr. Doorani made with 12 respect to those limitations. See McDowell v. Astrue, No. CV-06-3053-PHX-FJM, 2007 13 WL 4510600, at *3 (D. Ariz. Dec. 17, 2007) (noting that a non-examining physician who 14 opined to “exertional limitations” did not “consider the intermittent effects of [the 15 claimant’s migraines.”). The ALJ further noted that “[t]he capability for light work is 16 supported by the clinical and diagnostic findings throughout the record as discussed in 17 detail above.” (Tr. 22.) But the only record citation the ALJ made that referenced 18 Hernandez’s headaches was Hernandez’s own testimony that “her headaches had 19 decreased from daily to once a week.” (Tr. 21.) This does not undermine Dr. Doorani’s 20 report, since it is consistent with his opinion of five headaches and four absences a 21 month. 22 For the same reason that the opinions of Dr. Wang, Dr. Boyd, and the State 23 physician do not contradict Dr. Doorani’s opinion, they do not serve as clear and 24 convincing evidence to reject it. Nor do the other reasons the ALJ cited. 25 The ALJ described the headache questionnaire as “conclusory.” The cases dealing 26 with check-off forms from the Ninth Circuit teach that check-off forms may be 27 problematically conclusory, but are not necessarily so. Relevant factors include the 28 physician’s relationship with the claimant and the questionnaire’s consistency with the -6- 1 physician’s treatment notes. See Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014) 2 (finding error when ALJ rejected a “check-box form” questionnaire that was “based on 3 significant experience with [the claimant] and supported by numerous records”). Here, 4 the record reflects that Dr. Doorani had at least a six month long treating relationship 5 with Hernandez prior to filling out the form. (See Tr. 35, 256–57, 496–509.) Dr. 6 Doorani’s records during this time are consistent with his answers to the headache 7 questionnaire. On December 12, 2011, Dr. Doorani noted that Hernandez had “recurrent 8 headaches,” with “sharp pain” and “vision disturbance,” four to seven times a week. (Id.) 9 On February 3, 2012, Dr. Doorani wrote that Hernandez reported “a couple of episodes 10 where she had complete loss of vision,” albeit once without a headache. (Tr. 502.) On 11 April 16, Dr. Doorani reported that Hernandez was having headaches “two or three” 12 times per week. (Tr. 497.) On June 26, 2012, Hernandez was having “more frequent 13 headaches”; “pounding headaches with associated photophobia, phonophobia and 14 nausea.” (Tr. 256.) Dr. Doorani’s responses to the form, indicating severe headaches 15 that would affect concentration, attention, memory and capacity to work, are consistent 16 with these findings. Finally, while the notes do not directly state how much work 17 Hernandez might be expected to miss, there is no reason they should. See Orn, 495 F.3d 18 at 634 (“The primary function of medical records is to promote communication and 19 recordkeeping for health care personnel—not to provide evidence for disability 20 determinations.”). It was error for the ALJ to reject Dr. Doorani’s report on these 21 grounds. See Hinkley v. Colvin, No. CV-15-00633-PHX-ESW, 2016 WL 3563663, at *7 22 (D. Ariz. July 1, 2016). 23 All that remains is the ALJ’s allusion to a State agency physician’s opinion that 24 the handwriting on Dr. Doorani’s report resembled Hernandez’s handwriting. The ALJ 25 did not cite where this statement appeared, though a review of the record finds it in 26 Exhibit 6A, in the report of the State physician discussed in the previous paragraph. (Tr. 27 111.) There is nothing there but a simple statement that the handwriting on Dr. Doorani’s 28 report looked “remarkably similar” to that of Hernandez. (Id.) This assertion alone, -7- 1 without more concrete allegations of forgery or references to specific similarities, does 2 not lend itself to meaningful review and is not a clear and convincing reason to reject Dr. 3 Doorani’s report. 4 5 The ALJ therefore committed harmful error in granting limited weight to the opinion of treating physician Dr. Doorani. 6 B. 7 An ALJ must engage in a two-step analysis in determining whether a claimant’s 8 testimony is credible. Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007). 9 The ALJ must first “determine whether the claimant has presented objective medical 10 evidence of an underlying impairment which could reasonably be expected to produce the 11 pain or other symptoms alleged.” Id. at 1036. If she has, and the ALJ has found no 12 evidence of malingering, then the ALJ may reject the claimant’s testimony “only by 13 offering specific, clear and convincing reasons for doing so.” Id. (quoting Smolen v. 14 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). If an ALJ finds that a claimant’s testimony 15 relating to the intensity of his pain and other limitations is unreliable, the ALJ must make 16 a credibility determination citing the reasons why the testimony is unpersuasive. See 17 Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991). “The ALJ must specifically 18 identify what testimony is credible and what testimony undermines the claimant’s 19 complaints.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 20 “These findings, properly supported by the record, must be sufficiently specific to allow a 21 reviewing court to conclude the adjudicator rejected the claimant’s testimony on 22 permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding 23 pain.” Bunnell, 947 F.2d at 345–46 (internal quotation marks and citation omitted). Hernandez’s Testimony 24 Here, at the first step, the ALJ concluded that Hernandez’s medically determinable 25 impairments could reasonably be expected to produce her alleged symptoms. (Tr. 19.) 26 However, at the second step, the ALJ found that Hernandez’s statements regarding the 27 intensity, persistence and limiting effects of her symptoms were “not entirely credible.” 28 (Id.) The ALJ did not state that he found any evidence of malingering; thus, his reasons -8- 1 for rejecting Hernandez’s symptom testimony must be clear and convincing. 2 Lingenfelter, 504 F.3d at 1036. The ALJ spent over a page explaining why he found 3 Hernandez not entirely credible. (See Tr. 20–21.) Hernandez, however, argues that the 4 ALJ failed to present clear and convincing reasons, in four ways. 5 First, Hernandez argues that the ALJ “discussed the medical evidence in general” 6 but “failed to link that discussion any finding that any particular portion of Hernandez’s 7 symptom testimony was not credible,” (Doc. 15 at 10), in contravention of Ninth Circuit 8 precedent. See Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). But this 9 mischaracterizes the ALJ’s opinion, which summarized Hernandez’s testimony and then 10 addressed, paragraph by paragraph according to topic, the medical evidence undermining 11 the credibility of Hernandez’s testimony. (Tr. 19–21.) 12 Next, Hernandez asserts that the ALJ improperly required objective medical 13 evidence to corroborate Hernandez’s allegations as to the severity of her symptoms. See 14 Garrison, 759 F.3d at 1014. But simply because an ALJ may not require objective 15 medical evidence to corroborate a claimant’s testimony as to severity does not mean an 16 ALJ may not use objective medical evidence to contradict that testimony. An ALJ may 17 do so, where—as here—the contradiction is not the sole basis upon which the adverse 18 credibility finding is based. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 19 1997). 20 Third, Hernandez asserts that the ALJ improperly used Hernandez’s daily 21 activities to discredit her symptom testimony. Hernandez correctly notes that the Social 22 Security Administration recently issued Social Security Ruling 16-3p, superseding Social 23 Security Ruling 96-7p, and that this new ruling emphasizes that inconsistency between a 24 claimant’s allegations of disability and a claimant’s daily activities may not be used 25 broadly to discredit the claimant’s credibility but only insofar as the daily activities relate 26 to the ability to work. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016); see also Cole 27 v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016) (“The change in wording is meant to clarify 28 that administrative law judges aren’t in the business of impeaching claimants’ character; -9- 1 obviously administrative law judges will continue to assess the credibility of pain 2 assertions by applicants, especially as such assertions often cannot be either credited or 3 rejected on the basis of medical evidence.”). The ALJ’s opinion—issued prior to SSR 4 16-3p—contains both permissible and impermissible usage of daily activities to discredit 5 Hernandez. 6 The ALJ began his discussion of Hernandez’s credibility by noting that the record 7 reflected Hernandez’s “daily activities that included caring for her children, cooking, 8 household chores, shopping, [and] driving.” (Tr. 19.) These are the type of daily 9 activities that the Ninth Circuit has noted as being “transferable to a work setting.” See 10 Morgan, 169 F.3d 595, 600 (9th Cir. 1999) (upholding an ALJ’s determination that a 11 claimant’s “ability to fix meals, do laundry, work in the yard, and occasionally care for 12 his friend’s child served as evidence of [the claimant’s] ability to work”). The ALJ then 13 cited Hernandez’s apparent ability to drive as being inconsistent with her “complaints of 14 staring episodes.” (Tr. 20.) Later, discussing Hernandez’s headaches, the ALJ wrote that 15 “the debilitating aspects of these headaches are not supported by the medical record and 16 the claimant’s ongoing activities caring for her children and her household.” (Tr. 21.) 17 These were proper, clear and convincing uses of specific work-transferable daily 18 activities to discredit specific portions of Hernandez’s allegations.5 19 Speaking of Hernandez’s “extreme and constant pain,” the ALJ noted that 20 Hernandez reported that “standing, walking and physical activity and sexual activity” 21 increased her pain. (Tr. 20.) He then noted reports from multiple doctors reporting 22 Hernandez engaging in “physical activities including hiking” and sexual relations. (Id.) 23 Hernandez’s reported activities here do not speak to transferable work skills and seem to 24 be cited merely for their inconsistency with Hernandez’s statements as to her pain. Thus 25 it was error to use this to discredit Hernandez’s testimony; the error, however, was 26 harmless, given that there were other clear and convincing reasons to discredit 27 5 28 It is not clear that the ALJ relied on Hernandez’s daily activities to discredit any of her hearing testimony regarding headaches; indeed, during the hearing, Hernandez agreed that “if it was only the headaches, [she] could go back to work.” (Tr. 51.) - 10 - 1 Hernandez’s testimony based on her daily activities. See Stout v. Comm’r, Soc. Sec. 2 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (finding ALJ’s error in discrediting 3 claimant’s testimony harmless when “the ALJ provided numerous other record-supported 4 reasons for discrediting the claimant’s testimony”). 5 Finally, Hernandez argues that the ALJ erred by citing Hernandez’s failed attempt 6 to obtain unemployment insurance benefits as a reason to discredit her testimony. The 7 propriety of using a failed attempt to obtain unemployment benefits to discredit symptom 8 testimony falls in a gray area between two clear lines of case law. On one hand, failed 9 attempts to work may not be used to discredit a claimant’s subjective allegations, since 10 they indicate that a claimant could not work even though he had the desire to. See 11 Lingenfelter, 504 F.3d at 1038. On the other hand, the receipt of unemployment benefits, 12 where a claimant holds themselves out as available for full-time work, may be used to 13 discredit a claimant’s subjective symptom allegations. See Carmickle v. Comm’r, Soc. 14 Sec. Admin., 533 F.3d 1155, 1161–62 (9th Cir. 2008). Though other circuits have held 15 that failed attempts to obtain unemployment benefits may be considered in evaluating a 16 claimant’s symptom testimony, see Jernigan v. Sullivan, 948 F.2d 1070, 1074 (8th Cir. 17 1991) (citing Perez v. Sec’y of HEW, 622 F.2d 1, 3 (1st Cir. 1980)), the Ninth Circuit has 18 not addressed the question. 19 Here, Hernandez’s attempt to obtain unemployment benefits apparently failed 20 because she was unable to get a doctor’s note confirming her ability to work. (Tr. 21, 21 33.) This alone, without more information as to the circumstances, is not particularly 22 probative of her ability or inability to work. Hernandez did, however, hold herself out in 23 her application as being able to work full-time. (Tr. 337–40, 363.) SSR 16-3p does 24 permit ALJs to consider statements made about symptoms to other sources. 2016 WL 25 1119029 at *5–6. 26 inconsistency in his analysis. 27 /// 28 /// The Court cannot say that the ALJ erred by including this - 11 - 1 III. Remedy 2 The Ninth Circuit has set forth a three-part test to determine when it is appropriate 3 to remand for benefits versus further administrative proceedings. First, a court must 4 determine whether “the ALJ has failed to provide legally sufficient reasons for rejecting 5 evidence, whether claimant testimony or medical opinion.” Treichler v. Comm’r of Soc. 6 Sec. Admin., 775 F.3d 1090, 1100–01 (9th Cir. 2014) (citation and quotation omitted). 7 Second, the court must determine “whether the record has been fully developed, whether 8 there are outstanding issues that must be resolved before a determination of disability can 9 be made, and whether further administrative proceedings would be useful. Id. (citations 10 and quotations omitted). Third, if the court “concludes[s] that no outstanding issues 11 remain and further proceedings would not be useful, [the court] may . . . find[] the 12 relevant testimony credible as a matter of law” and remand for benefits. Id. (citations and 13 quotations omitted). When there are questions regarding the sufficiency of the record as 14 a whole or an ALJ’s reasoning, “the proper course, except in rare circumstances, is to 15 remand to the agency for additional investigation or explanation.” Gonzales v. Thomas, 16 547 U.S. 183, 185 (2006) (quotation omitted). 17 Here, the ALJ did not provide sufficient reasons to reject Dr. Doorani’s opinion 18 that Hernandez would miss an average of four days of work a month because of her 19 headaches. The vocational expert, moreover, testified that even one unscheduled absence 20 per month would, over time, preclude employment. (See Tr. 59.) Yet there is a major 21 outstanding issue remaining that would best be resolved at a further proceeding, one 22 which neither party has addressed: Hernandez testified at the hearing that her headaches 23 alone would not preclude her from working. (Tr. 51.) Given that the ALJ only erred in 24 rejecting Dr. Doorani’s opinion as to headaches, that is the only remaining ground upon 25 which Hernandez could be found disabled—yet Hernandez’s testimony indicates that her 26 headaches were not disabling. Dr. Doorani’s opinion, interpreted by the vocational 27 expert, indicates otherwise. It is the job of the ALJ, not this Court, to resolve conflicts 28 and ambiguities in the evidence. See Andrews, 53 F.3d at 1039. - 12 - Because the 1 contradiction between Dr. Doorani’s opinion and Hernandez’s testimony must be 2 resolved, the case is remanded for further proceedings not inconsistent with this opinion. 3 See Treichler, 775 F.3d 1090, 1106 (9th Cir. 2014). 4 5 6 IT IS THEREFORE ORDERED that the Clerk of Court remand this action back to the ALJ for further proceedings. Dated this 13th day of January, 2017. 7 8 9 Honorable G. Murray Snow United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 -

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