Aguirre v. Colvin

Filing 15

ORDER - The Commissioners' decision is vacated and this matter isremanded to the Commissioner for further administrative proceedings consistent with this Order. The Clerk of the Court shall enter judgmentaccordingly and terminate this case. Signed by Magistrate Judge John Z Boyle on 08/04/2017. (KAS)

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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 Jacinto Johnny Aguirre, Plaintiff, 10 11 ORDER v. 12 No. CV-16-01409-PHX-JZB Carolyn W. Colvin, 13 Defendant. 14 15 Plaintiff Jacinto Johnny Aguirre seeks review of the Social Security 16 Administration Commissioner’s decision denying his social security benefits under the 17 Social Security Act. (Doc. 1; Doc. 12.) For the reasons below, the Court will vacate the 18 Commissioner’s decision and remand this matter for further proceedings consistent with 19 this Order. 20 I. Background 21 On October 11, 2012, Plaintiff filed an application for disability and disability 22 insurance benefits. (AR1 253-68.) Plaintiff alleged an amended disability onset date of 23 July 1, 2010.2 (Id.) Plaintiff’s applications were initially denied on February 4, 2013, and 24 upon reconsideration on July 8, 2013. (Id. at 196-99, 202-08.) On July 16, 2013 Plaintiff 25 1 26 2 27 28 Citations to “AR” are to the Administrative Record. Plaintiff’s initial alleged disability onset date was January 9, 2009. (AR 253.) Plaintiff had a previous hearing on January 9, 2012 (id. at 57-111), and his case was dismissed on February 23, 2012. (Id. at 112.) Plaintiff did not appeal the decision. Plaintiff alleges he “could have adjusted to other work until the exacerbation of his back pain in 2010.” (Id at 357.) 1 filed a written request for hearing. (Id. at 209-10.) Subsequently, Plaintiff’s application 2 was set for a video hearing, which was held on June 19, 2014. (Id. at 36.) In a decision 3 dated August 4, 2014, Administrative Law Judge (ALJ) Laura Speck Havens denied 4 Plaintiff’s application for benefits. (Id. at 20-27.) On August 29, 2014, the Appeals 5 Council denied Plaintiff’s request for review of the ALJ’s decision, making the ALJ’s 6 decision the final decision of the Commissioner of the Social Security Administration. 7 (Id. at 1-6.) 8 On May 6, 2016, Plaintiff sought judicial review of the ALJ’s decision by filing a 9 Complaint with this Court pursuant to 42 U.S.C. § 405(g). (Doc. 1.) On September 13, 10 2016, Plaintiff filed an Opening Brief, seeking remand of this case to the Social Security 11 Administration for an award of benefits. (Doc. 12.) On October 13, 2016, Defendant 12 filed a Response Brief in support of the Commissioner’s decision. (Doc. 13.) On 13 October 27, 2016, Plaintiff filed a Reply Brief. (Doc. 14.) 14 II. Standard of Review 15 The Social Security Act, 42 U.S.C. § 405(g), provides for judicial review of the 16 Commissioner’s disability benefits determinations. The Court may set aside the 17 Commissioner’s disability determination only if the determination is not supported by 18 substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 19 2007); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). “‘Substantial evidence’ 20 means more than a mere scintilla, but less than a preponderance; it is such relevant 21 evidence as a reasonable person might accept as adequate to support a conclusion.” 22 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007); see also Reddick v. Chater, 23 157 F.3d 715, 720 (9th Cir. 1998). 24 In determining whether substantial evidence supports the ALJ’s decision, the 25 Court considers the record as a whole, weighing both the evidence that supports and that 26 which detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720; Tylitzki v. Shalala, 27 999 F.2d 1411, 1413 (9th Cir. 1993). The ALJ is responsible for resolving conflicts, 28 ambiguity, and determining credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. -2- 1 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Court “must 2 uphold the ALJ’s decision where the evidence is susceptible to more than one rational 3 interpretation.” Andrews, 53 F.3d at 1039. “However, a reviewing court must consider 4 the entire record as a whole and may not affirm simply by isolating a ‘specific quantum 5 of supporting evidence.’” Orn, 495 F.3d at 630 (quoting Robbins v. Soc. Sec. Admin., 466 6 F.3d 880, 882 (9th Cir. 2006)). The Court reviews only those issues raised by the party 7 challenging the ALJ’s decision. 8 2001). Similarly, the Court reviews “only the reasons provided by the ALJ in the 9 disability determination and may not affirm the ALJ on a ground upon which he did not See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 10 rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). 11 III. The ALJ’s Five-Step Evaluation Process 12 To be eligible for Social Security benefits, a claimant must show an “inability to 13 engage in any substantial gainful activity by reason of any medically determinable 14 physical or mental impairment which can be expected to result in death or which has 15 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 16 U.S.C. § 423(d)(1)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). A 17 person is under a disability only: 18 19 20 21 22 23 24 25 26 27 28 if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A). The ALJ follows a five-step evaluation process to determine whether an applicant is disabled under the Social Security Act: The five-step process for disability determinations begins, at the first and second steps, by asking whether a claimant is engaged in “substantial gainful activity” and considering the severity of the claimant’s impairments. See 20 C.F.R. § 416.920(a)(4)(i)-(ii). If the inquiry continues beyond the second step, the third step asks whether the claimant’s impairment or combination of impairments meets or equals a listing under 20 C.F.R. pt. 404, subpt. P, app. 1 and meets the duration requirement. See id. § 416.920(a)(4)(iii). If so, the claimant is considered disabled and benefits are awarded, -3- 3 ending the inquiry. See id. If the process continues beyond the third step, the fourth and fifth steps consider the claimant’s “residual functional capacity” in determining whether the claimant can still do past relevant work or make an adjustment to other work. See id. § 416.920(a)(4)(iv)-(v). 4 Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). “The burden of proof is on the 5 claimant at steps one through four, but shifts to the Commissioner at step five.” Bray v. 6 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). 1 2 7 Here, the ALJ concluded that Plaintiff was not “disabled,” as the term is defined in 8 42 U.S.C. §§ 416, 423. (AR 26.) In following the five-step sequential evaluation process 9 used for determining whether an individual is disabled, see 20 C.F.R. § 404.1520(a)(4), 10 the ALJ concluded at step one that Plaintiff “has not engaged in substantial gainful 11 activity since July 1, 2010, the amended onset date.” (Id. at 20.) At step two, the ALJ 12 found that Plaintiff “has the following severe impairments: degenerative disc disease, 13 obesity, hypertension, asthma, and arthritis.” (Id.) At step three, the ALJ found that 14 Plaintiff does not have an impairment or combination of impairments that meets or 15 medically equals the severity of one of the listed impairments in 20 CFR Part 404, 16 Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526.).” (Id. at 22.) At 17 step four, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to 18 perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a), except that 19 Plaintiff: 20 is able to sit for 6 hours out of an 8-hour work day, stand for 2 hours out of an 8-hour work day, and walk for 2 hours out of an 8-hour work day; [Plaintiff] requires a cane for ambulation; [Plaintiff] is able to occasionally lift and carry 10 lbs., and frequently lift and carry 10 lbs.; [Plaintiff] can occasionally climb stairs, balance, stoop but never climb ladders, kneel, crouch, or crawl; and [Plaintiff] is able to work in environments without concentrated exposure to height, involving machinery, dust, fumes, smoke, temperature extreme, and vibrations. 21 22 23 24 25 26 27 28 (Id.) The ALJ further determined that Plaintiff is unable to perform any of his past relevant work. (Id. at 25.) Finally, at step five, the ALJ found that “there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform” -4- 1 considering Plaintiff’s “age, education, work experience, and residual functional 2 capacity.” (Id. at 26.) The ALJ found that Plaintiff could perform the requirements of 3 representative occupations such as an information clerk and an order clerk. (Id.) Given 4 that finding, the ALJ concluded that Plaintiff is not disabled under sections 216(i) and 5 223(d) of the Social Security Act. (Id. at 27.) 6 IV. Analysis 7 Plaintiff argues that the ALJ erred in weighing the medical opinion evidence and 8 for failing to consider Plaintiff’s knee condition as a severe medical impairment. The 9 Court addresses these arguments below. 10 11 a. Medical Opinion Evidence i. Legal Standards 12 The Ninth Circuit distinguishes between the opinions of treating physicians, 13 examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 14 830 (9th Cir. 1995). Generally, an ALJ should give greatest weight to a treating 15 physician’s opinion and more weight to the opinion of an examining physician than to 16 one of a non-examining physician. See Andrews, 53 F.3d at 1040-41; see also 20 C.F.R. 17 § 404.1527(c)(2)-(6). If it is not contradicted by another doctor’s opinion, the opinion of 18 a treating or examining physician can be rejected only for “clear and convincing” 19 reasons. Lester, 81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 20 1988)). “If a treating or examining doctor’s opinion is contradicted by another doctor’s 21 opinion, an ALJ may only reject it by providing specific and legitimate reasons that are 22 supported by substantial evidence.” Garrison, 759 F.3d at 1012 (quoting Ryan v. Comm’r 23 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). 24 An ALJ can meet the “specific and legitimate reasons” standard “by setting out a 25 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 26 interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th 27 Cir. 1986). But “[t]he ALJ must do more than offer his conclusions. He must set forth 28 his own interpretations and explain why they, rather than the doctors’, are correct.” -5- 1 Embrey, 849 F.2d at 421-22. “The opinion of a non-examining physician cannot by itself 2 constitute substantial evidence that justifies the rejection of the opinion of either an 3 examining or a treating physician.” Lester, 81 F.3d at 831 (emphasis in original) 4 (citations omitted). 5 Here, the opinions of Plaintiff’s treating physician, Dr. Hermenau, are contradicted 6 by the opinions of the state agency physician, Dr. Combs. Therefore, the ALJ was 7 required to give specific and legitimate reasons supported by substantial evidence for 8 giving Dr. Hermenau’s opinions reduced weight. 9 ii. 10 The ALJ failed to provide specific and legitimate reasons for rejecting Dr. Hermenau’s opinions. 11 Plaintiff argues that the ALJ failed to provide specific, legitimate reasons for 12 rejecting the opinion of his treating physician, Dr. Hermenau. As detailed below, the 13 Court agrees. 14 On January 14, 2013, Dr. Hermenau completed a Medical Source Statement. (AR 15 797-99.) Dr. Hermenau opined that Plaintiff could carry or lift up to 10 pounds 16 “occasionally,” which is defined on the Statement as one-third of the day. (Id. at 797.) 17 Dr. Hermenau limited Plaintiff to sitting, standing, or walking for one hour each in an 18 eight-hour work day. (Id. at 798.) Dr. Hermenau further opined Plaintiff could sit for a 19 total of three hours in an eight-hour work day, and could stand or walk for a total of two 20 hours each in an eight-hour work day. (Id.) Dr. Hermenau also opined Plaintiff could use 21 his left and right hands “occasionally” for the following work-related activities: simple 22 grasp, reaching overhead, reaching all other, fingering (fine motor), handling (gross 23 motor), and push/pull. (Id. at 798-99.) Finally, Dr. Hermenau opined Plaintiff could never 24 climb stairs and ramps, climb ladders or scaffolds, balance, stoop, kneel, crouch, or bend 25 at the waist. (Id. at 799.) Dr. Hermenau was of the opinion that Plaintiff would likely be 26 absent from full-time employment more than four times a month. (Id.) 27 After summarizing a portion of the administrative record, the ALJ gave little 28 weight to Dr. Hermenau’s Medical Source Statement, because “the opinion relies heavily -6- 1 on the subjective report of symptoms and limitations provided by [Plaintiff], and the 2 totality of the evidence does not support the opinion.” The ALJ further opines that if the 3 limitations Dr. Hermenau opined were imposed, Plaintiff “would be bedbound rather 4 than…being more active and back to school.” (Id. at 24.) The ALJ also found that Dr. 5 Hermenau’s opinion that Plaintiff would miss work more than four times a month was 6 “not supported by the objective medical evidence and the totality of the evidence.” (Id.) 7 Instead, the ALJ gave substantial weight to the opinion provided by the non-treating and 8 non-examining state agency physician, Dr. Combs, because “his opinion is consistent 9 with the totality of the evidence and supported by the objective medical evidence.” (Id. at 10 25.) 11 The Court finds that the ALJ failed to provide specific and legitimate reasons 12 supported by substantial evidence for giving Dr. Hermenau’s Medical Source Statement 13 reduced weight. First, the ALJ found that Dr. Hermenau’s opinions relied heavily on 14 Plaintiff’s subjective report of symptoms. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 15 (9th Cir. 2008) (“An ALJ may reject a treating physician’s opinions if it is based to a 16 large extent on a claimant’s self-reports that have been properly discounted.”).3 The ALJ 17 stated that Dr. Hermenau’s opinions would render Plaintiff “bedbound,” instead of more 18 active and back to school, as Dr. Hermenau noted in an April 15, 2013 report. (Id. at 19 844.). Defendant concedes it does not rely on the ALJ’s reasoning that Dr. Hermenau’s 20 opinions would render Plaintiff “bedbound.” Defendant instead argues it was “reasonable 21 for the ALJ to conclude that Dr. Hermenau’s opinion appeared to rely heavily on 22 Plaintiff’s less than fully credible subjective report.” (Doc. 13-6.) The Court disagrees. 23 On Dr. Hermenau’s Medical Source Statement, he indicated objective medical findings 24 supported his assessment, which included Plaintiff’s limited range of motion, imaging of 25 lumbar disc degeneration, spondylosis, and medication therapy. (Id. at 797-99.) 26 Additionally, the ALJ must do more than make a “reasonable conclusion” in order to 27 28 3 The ALJ found that Plaintiff’s symptom testimony was not entirely credible (id. at 24), and Plaintiff did not challenge this adverse credibility determination. -7- 1 reject a treating physician’s opinions; the ALJ must provide specific and legitimate 2 reasons supported by substantial evidence. 3 The Court also notes that Plaintiff’s attendance of school is not necessarily 4 inconsistent with Dr. Hermenau’s Medical Source Statement, nor does it indicate Dr. 5 Hermenau relied on Plaintiff’s self-reports in his Medical Source Statement. Plaintiff 6 previously testified that he attended school online. (AR 74-75.) Although Plaintiff was 7 required to take one class on-campus, this class was only once a week for an hour. (Id.) 8 Plaintiff stated he was given a chair “with a lot of cushion and arch support in the back” 9 while going to school (id. at 49), and that he parked no farther than 50 yards from his 10 classroom. (Id. at 75.) Further, in the same treatment record, Dr. Hermenau states that 11 Plaintiff “has had some persistent back pain and some ‘giving out’ of his legs,” and that 12 “he is walking with a walker.” (Id. at 844.) Moreover, the ALJ is to consider the entirety 13 of Plaintiff’s medical record, and a single sentence from one treatment record is not 14 “substantial evidence” to reject Dr. Hermenau’ opinion. Molina v. Astrue, 674 F.3d 1104, 15 1110 (9th Cir. 2012). 16 Finally, the ALJ found that Dr. Hermenau’s opinion that Plaintiff would miss 17 work more than four times a month was not supported by objective medical evidence. 18 However, the ALJ does not explain what this objective evidence is and why it does not 19 support Dr. Hermenau’s opinion. Although the ALJ summarized a portion of the 20 administrative record in support of her RFC determination, this is not the same as 21 providing clear and convincing reasons. See Brown-Hunter v. Colvin, 806 F.3d 487, 494 22 (9th Cir. 2015). The ALJ failed to identify specifically which of the evidence she 23 summarized does not support Dr. Hermenau’s opinion. See Treichler v. Comm’r of Soc. 24 Sec. Admin., 775 F.3d 1090, 1103 (“[W]e cannot substitute our conclusions for the 25 ALJ’s, or speculate as to the grounds for the ALJ’s conclusions. Although the ALJ’s 26 analysis need not be extensive, the ALJ must provide some reasoning in order for us to 27 meaningfully determine whether the ALJ’s conclusions were supported by substantial 28 evidence.”). -8- 1 The Court finds that the ALJ committed harmful legal error by failing to provide 2 specific and legitimate reasons supported by substantial evidence for giving Dr. 3 Hermenau’s opinions reduced weight. 4 5 b. Plaintiff’s Right Knee Impairment i. Legal Standards 6 At step two of the five-step analysis, the ALJ considers the medical severity of the 7 claimant’s impairments. 20 C.F.R. § 404.1520(a)(4)(ii). To find the claimant’s 8 impairment severe, the impairment or combination of impairments must significantly 9 limit the claimant’s physical or mental ability to do basic work activities. 20 C.F.R. § 10 404.1520(c). Basic work activities include: physical functions; capacities for seeing, 11 hearing, and speaking; understanding, carrying out, and remembering simple instructions; 12 use of judgment; responding appropriately to usual work situations; and dealing with 13 changes in a routine work setting. 20 C.F.R. § 404.1521(b)(1)-(6). An impairment is “not 14 severe” only if the evidence establishes a slight abnormality with minimal effect on the 15 individual’s ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The 16 step-two inquiry is a de minimis screening device to dispose of groundless claims. Bowen 17 v. Yuckert, 482 U.S. 137, 153-54 (1987). 18 Importantly, the inquiry “is to do no more than allow the [Social Security 19 Administration] to deny benefits summarily to those applicants with impairments of a 20 minimal nature which could never prevent a person from working.” SSR 85-28 (internal 21 quotations omitted). “‘[I]f an adjudicator is unable to determine clearly the effect of an 22 impairment or combination of impairments on the individual’s ability to do basic work 23 activities, the sequential evaluation should not end with the not severe evaluation step.’” 24 Id. Further, the ALJ “is required to consider the claimant’s subjective symptoms, such as 25 pain or fatigue, in determining severity.” Smolen, 80 F.3d at 1273 (citing SSR 88-13). 26 Thus, the Court’s task in reviewing a non-severe finding at step two is to “determine 27 28 whether the ALJ had substantial evidence to find that the medical evidence clearly established that [Plaintiff] did not have a medically severe impairment or combination of -9- 1 2 3 4 5 6 7 8 impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). When determining a claimant’s RFC, the ALJ must consider all medically determinable impairments. See 20 C.F.R. § 404.1545 (“We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not ‘severe,’ as explained in §§ 404.1520(c), 404.1521, and 404.1523, when we assess your residual functional capacity.”). Additionally, the ALJ must assess a claimant’s RFC “based on all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). 9 10 ii. The ALJ erred by failing to evaluate Plaintiff’s knee impairment. 11 Plaintiff argues that the ALJ erred by failing to fully evaluate Plaintiff’s knee 12 condition. Plaintiff asserts that the ALJ failed to include Plaintiff’s knee condition in the 13 identified list of severe impairments at Step Two of her analysis, and so it is presumable 14 that the ALJ found the condition to be non-severe. However, there is no discussion in the 15 ALJ’s decision regarding why the knee condition is not considered to be a severe medical 16 impairment, and it is unclear whether the ALJ considered this impairment in her decision. 17 Thus, Plaintiff contends, the ALJ committed harmful legal error. As detailed below, the 18 Court agrees. 19 The ALJ identified the following to be Plaintiff’s severe impairments: 20 degenerative disc disease, obesity, hypertension, asthma, and arthritis. (AR 20.) But, the 21 ALJ failed to include Plaintiff’s knee impairment for which there are medical records (id. 22 at 899-904; 945-69), and for which Plaintiff testified about during his hearing. (Id. at 37, 23 47-48.) The ALJ also did not indicate or explain if she had found Plaintiff’s knee 24 impairment to be non-severe. The Court finds that the ALJ erred by failing to consider 25 the medical severity of Plaintiff’s impairment, as required by 20 C.F.R. § 26 404.1520(a)(4)(ii). 27 Additionally, even if the ALJ had found Plaintiff’s knee impairment to be non- 28 severe, all medical impairments must be considered in determining Plaintiff’s RFC, and - 10 - 1 the RFC must be based on all relevant medical evidence. 20 C.F.R. § 404.1545. The ALJ 2 only discussed one medical record pertaining to Plaintiff’s knee injury. The ALJ cited to 3 this single record in order to find Plaintiff’s symptom testimony to be incredible, and did 4 not otherwise account for the knee impairment in evaluating Plaintiff’s RFC. The ALJ 5 states Dr. Clark, Plaintiff’s knee surgeon, noted Plaintiff showed “some marked 6 discomfort with gentle patellofemoral compression” although Plaintiff was able to 7 ambulate “and there has been no contact with his knee.” (AR 958.) Dr. Clark was also of 8 the opinion that Plaintiff’s knee pain was likely secondary to overuse. (Id.) But, the ALJ 9 fails to discuss Plaintiff’s arthroscopy or any additional records from Dr. Clark regarding 10 Plaintiff’s knee impairment. 11 Beginning March 29, 2013, Plaintiff was evaluated by Dr. Clark for right knee 12 pain after frequent falls. (AR 901.) A physical exam by Dr. Clark on April 15, 2013 13 revealed a “medial collateral ligament sprain.” (Id. at 900.) On September 9, 2013, Dr. 14 Clark performed arthroscopic surgery on Plaintiff’s right knee to repair a torn medial 15 meniscus. (Id. at 950.) After Plaintiff reported continuing pain and frequent falls, an MRI 16 was conducted on May 20, 2014 on Plaintiff’s right knee. (Id. at 1049-50.) The MRI 17 revealed a “new vertical tear versus postsurgical change in the body of the medial 18 meniscus” and “small joint effusion.” (Id.) After evaluating the MRI, Dr. Clark noted it 19 showed “abnormal signal in the location of [Plaintiff’s] previous surgery,” and stated that 20 “there is really no way of identifying in advance whether there is any tissue that can be 21 resected and could potentially relieve [Plaintiff’s] pain.” (Id. at 1047.) At the hearing, 22 Plaintiff identified his back and knee pain to be the two areas where he feels the most 23 pain. (Id. at 47.) Given Plaintiff’s history of reported right knee pain and arthroscopic 24 surgery, the Court finds that the ALJ erred by failing to fully discuss this impairment in 25 her RFC determination, as required by 20 C.F.R. § 404.1545. 26 Defendant argues that even assuming the ALJ did err, any error was harmless to 27 Plaintiff. (Doc. 13-9.) See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“A 28 decision of the ALJ will not be reversed for errors that are harmless.”). An ALJ’s error is - 11 - 1 harmless if it is “inconsequential to the ultimate nondisability determination.” Molina, 2 674 F.3d at 1115. The Court disagrees with Defendant and cannot be certain that the 3 ALJ’s RFC “amply accommodated any knee problem” (Doc. 13-9), or that the ALJ’s 4 RFC and disability determinations would have been different had the ALJ adequately 5 considered Plaintiff’s knee impairment and the above-mentioned medical records. Thus, 6 the Court finds that the ALJ’s error was not harmless. See also Carmickle v. Comm’r of 7 Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (finding the ALJ committed 8 harmful legal error because all of the plaintiff’s relevant limitations and impairments 9 were not included in the ALJ’s RFC determination). 10 The Court finds that the ALJ committed harmful legal error by failing to discuss 11 whether she found Plaintiff’s knee impairment to be non-severe and by failing to fully 12 consider Plaintiff’s knee impairment in her RFC determination. 13 V. Remand for further proceedings is appropriate here. 14 Having determined that the ALJ erred, the Court must vacate the Commissioner’s 15 decision. The remaining issue for the Court is whether to remand this matter for an 16 award of benefits or for further proceedings. Such a determination is within the Court’s 17 discretion. Smolen, 80 F.3d at 1292. 18 In order to determine when it is appropriate to remand for benefits versus further 19 administrative proceedings, the Ninth Circuit has established a three-part test. First, a 20 court must determine whether “the ALJ has failed to provide legally sufficient reasons for 21 rejecting evidence, whether claimant testimony or medical opinion.” Treichler, 775 F.3d 22 at 1101. Second, the court must determine “whether the record has been fully developed, 23 whether there are outstanding issues that must be resolved before a determination of 24 disability can be made, and whether further administrative proceedings would be useful.” 25 Id. Third, if the court “concludes that no outstanding issues remain and further 26 proceedings would not be useful, [the court] may…find[] relevant testimony credible as a 27 matter of law” and remand for benefits.” Id. “When an ALJ’s denial of benefits is not 28 supported by the record, the proper course, except in rare circumstances, is to remand to - 12 - 1 the agency for additional investigation or explanation.” Hill v. Astrue, 698 F.3d 1153, 2 1162 (9th Cir. 2012) (quotation omitted). 3 The Court has considered the record as a whole, weighing both the evidence that 4 supports and that which detracts from the ALJ’s conclusions. The Court finds that 5 remand for further proceedings is appropriate here. Although the Court finds that the ALJ 6 erred, the Court also finds that there is serious doubt as to whether Plaintiff is disabled. 7 See Garrison, 759 F.3d at 1021. Specifically, the Court notes Dr. Clark stating on 8 February 19, 2014 that Plaintiff “is working out at the YMCA three times a week and has 9 been involved in a progressive cycling program.” (AR 958.) Plaintiff testified at the 10 hearing and wrote in a Function Report that he attends church, his daughter’s soccer 11 games, and the movies each week. (Id. at 45, 307.) In a March 11, 2014 report, Dr. Clark 12 stated: “Unfortunately, the reliability of [Plaintiff’s] family is questioned because 13 [Plaintiff’s] facial grimacing and audible grunting which suggest symptom magnification. 14 The knee did demonstrate no discoloration, no significant swelling, and no edema in the 15 foot or ankle.” (Id. at 956.) Additionally, Dr. Hermenau stated on January 14, 2011 that 16 Plaintiff “is noted to have back pain with symptoms and signs of non-organic pathology 17 that appears to be disproportionate from imaging studies.” A brain MRI conducted on 18 April 26, 2011, revealed normal results. (Id. at 387.) An EEG conducted on June 17, 19 2011 was “within normal limits” and “no clear epileptiform activity was seen.” 20 Additionally, Plaintiff had a second arthroscopic surgery on July 14, 2014, which took 21 place after Plaintiff’s hearing. (Id. at 1055.) The Court is not sure what effect Plaintiff’s 22 second arthroscopic surgery had on his knee pain and instability. 23 The case is therefore remanded for further proceedings. On remand, the ALJ must 24 reevaluate Dr. Hermenau’s opinions and consider Plaintiff’s knee impairment in 25 assessing his RFC. 26 Accordingly, 27 IT IS ORDERED that the Commissioners’ decision is vacated and this matter is 28 remanded to the Commissioner for further administrative proceedings consistent with this - 13 - 1 2 3 4 Order. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly and terminate this case. Dated this 4th day of August, 2017. 5 6 7 Honorable John Z. Boyle United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 -

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