McInvale v. Colvin

Filing 24

ORDER - IT IS THEREFORE ORDERED reversing the decision of the Administrative Law Judge (R. at 1126) as upheld by the Appeals Council (R. at 16). The Court remands this matter for further proceedings as to Plaintiff's symptom testimony and evidence that post-dates Plaintiffs date last insured. IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly and close this matter. (See document for full details). Signed by Judge John J Tuchi on 6/3/16. (LAD)

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1 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Thomas Sidney McInvale, Plaintiff, 10 11 ORDER v. 12 No. CV-15-08115-PCT-JJT Carolyn W. Colvin, 13 Defendant. 14 15 At issue is the denial of Plaintiff Thomas Sidney McInvale’s Application for 16 Disability Insurance Benefits (DIB) by the Social Security Administration under the 17 Social Security Act. Plaintiff filed a Complaint on June 29, 2015, asking this Court to 18 review the denial of his benefits. (Doc. 1.) The Court has reviewed the briefs (Docs. 17, 19 19, 23) as well as the Administrative Record (Doc. 12, R.) and now reverses the 20 Administrative Law Judge’s decision (R. at 11–26) as upheld by the Appeals Council 21 (R. at 1–6). 22 I. BACKGROUND 23 Plaintiff filed an application for DIB in May 2011, initially alleging disability 24 beginning March 1, 2009, and his date last insured is September 30, 2010. (R. at 14, 282.) 25 After Plaintiff’s application was denied initially and on reconsideration, Plaintiff 26 requested a hearing, which an Administrative Law Judge (ALJ) held on August 21, 2013. 27 (R. at 27–51.) On November 1, 2013, the ALJ issued a decision denying Plaintiff’s 28 application. (R. at 11–26.) After the ALJ denied Plaintiff’s request, the Appeals Council 1 (AC) denied Plaintiff’s request for review of the ALJ’s decision on April 30, 2015, 2 making the ALJ decision the final decision of the Commissioner of Social Security. (R. at 3 1–6.) The present appeal followed. 4 A. 5 The Court has reviewed the medical evidence in its entirety and provides a short 6 summary here. Plaintiff suffers from degenerative disc disease in the cervical and lumbar 7 spines, neuropathy in the lower extremities, sleep apnea, and obesity. (See, e.g., R. at 16, 8 492, 508.) Plaintiff reported experiencing back pain as early as 2008 (R. at 429), and his 9 pain has progressively worsened (R. at 372, 388). Medical Evidence 10 In February 2008, Dr. Arthur Ford reviewed Plaintiff’s MRIs and found they 11 revealed “fairly severe lumbar degenerative disc disease and lumbar facet disease, as well 12 as cervical degenerative disc disease.” (R. at 429.) In May 2008, Plaintiff had an MRI of 13 the cervical spine that indicated a partial fusion of the C4 and C5 vertebrae and very mild 14 degenerative disc disease throughout the cervical spine. (R. at 521.) In August 2010, 15 Plaintiff had an MRI of the lumbar spine that indicated the following: bilateral L5 16 spondylolysis with grade I spondylolisthesis at L5-S1; degenerative disc disease and 17 osteoarthritis throughout the lumbar spine; small posterior disc bulges at multiple lumbar 18 levels; and no evidence of spinal stenosis. (R. at 520.) 19 From 2008 to 2012, Plaintiff received routine lumbar epidural steroid nerve blocks 20 and cervical steroid nerve blocks for his chronic low back pain, lumbar degenerative disc 21 disease, and sacroiliitis. (R. at 435–99.) Plaintiff stopped this treatment from 22 approximately July 2008 to October 2009 before returning to treatment because of 23 increased pain. (See R. at 453–56.) After receiving treatment in 2009, Plaintiff reported 24 not having significant pain (see R. at 457, 459), but generally, the epidural block 25 injections provided Plaintiff with only short-term relief (see R. at 490, 433, 471, 496). 26 Dr. Ford administered and oversaw Plaintiff’s epidural injections and frequently noted 27 that because of Plaintiff’s obesity and related pain, there was minimal treatment available 28 and results would be limited. (See, e.g., R. at 451, 485, 494.) On one occasion in 2008, -2- 1 Dr. Ford stated Plaintiff’s options for pain management alternatives were “pretty grim 2 because of his weight,” and that spine doctors would not even consider Plaintiff because 3 of his weight. (R. at 445.) 4 Plaintiff also experienced pain in his right shoulder beginning around 2009, which 5 was exacerbated when he fell in 2011, resulting in a full tear to his rotator cuff. (R. at 6 343.) After review of x-rays and MRIs and administration of injection treatments for 7 pain, Plaintiff underwent rotator cuff surgery in September 2011. (R. at 357.) Thereafter, 8 he felt fully recovered with regard to his right shoulder function. (R. at 376, 380.) 9 Plaintiff continued to complain of progressive lower back pain through 2012. 10 (R. at 376.) X-rays of the cervical and lumbar spine in June 2012 showed significant 11 issues in the cervical spine, including degenerative disc disease, degenerative 12 spondylosis, and uncovertebral arthrosis (osteoarthritis affecting certain joints along the 13 cervical vertebra), and significant issues in the lumbar spine, including spondylolisthesis 14 and advanced degenerative disc disease in nearly the entire lumbar spine. (R. at 377.) In 15 assessments from 2012 by Physician Assistant Kirk Butler at Flagstaff Center for Bone 16 and Joint Disorders, where Plaintiff frequently obtained treatment, PA Butler determined 17 Plaintiff had progressive lumbosacral pain with sensory radiculopathy and degenerative 18 spondylolisthesis with severe bilateral foraminal stenosis and degree of dynamic 19 instability. (R. at 374, 376–78.) PA Butler initially recommended continued lumbar 20 corticosteroid injections, physical therapy, and weight loss. (R. at 375, 378.) The 21 injection treatments only provided Plaintiff with short-term relief, however, and PA 22 Butler and Dr. John Hall, also at Flagstaff Center for Bone and Joint Disorders, 23 recommended Plaintiff undergo surgery. (R. at 373–75, 378.) 24 Plaintiff took various medications for his pain, inflammation and muscle spasms 25 including OxyContin, Tramadol, Voltaren, Ultram, Soma, Naproxen, and Ibuprofen. 26 (R. at 434.) Plaintiff also received physical therapy treatment in 2012. (R. at 382–90.) 27 28 -3- 1 2 B. Hearing Testimony 1. Plaintiff’s Testimony 3 At Plaintiff’s hearing before the ALJ on August 21, 2013, Plaintiff testified as to 4 his pain. Plaintiff stated that overall his pain in 2010 was moderately severe and 5 worsened with increased activity. (R. at 39.) During the average workday hours, Plaintiff 6 needed to spend at least three quarters of the day reclining. (R. at 39.) He stated that in 7 2010, he could not stand for more than 10 to 15 minutes without extreme pain, and could 8 not stand for a more than an hour total in an eight-hour workday. (R. at 34, 41–42.) He 9 could not sit for more than two hours in a workday. (R. at 34, 41.) Plaintiff stated that his 10 low back pain was constant and sometimes the pain went down to his legs and feet. (R. at 11 37.) He stated he received epidural injections for his back, but that the shots did not help 12 him. (R. at 35.) He also explained he later had spinal fusion surgery and received physical 13 therapy for his back pain. (R. at 35.) While Plaintiff experienced some relief from his 14 back pain after his surgery in 2013, his back pain returned at another area. (R. at 39–40.) 15 Plaintiff testified that after experiencing constant pain in 2010, he underwent a 16 nerve conduction study in January 2011 that showed bilateral lower extremity peripheral 17 neuropathy. (R. in 38.) He experienced pain in his feet and low back due to neuropathy, 18 and doctors instructed him to elevate his feet to help with the pain. (R. at 40, 42.) 19 With regard to daily activities, Plaintiff testified he was able to help around the 20 house with cooking and cleaning once or twice a week, that he cleaned his toilet every 21 day, and that he “gather[ed] up laundry” but his mother did the laundry. (R. at 32.) 22 Plaintiff also testified that in 2009 and 2010, he drove to his church about once a month, 23 which was a 50 mile roundtrip drive. (R. at 33.) 24 2. Vocational Expert Testimony 25 Troy Scott, a vocational expert (VE), also testified before the ALJ at the August 26 21, 2013 hearing. (R. at 28, 45–50.) When the ALJ asked the VE whether a hypothetical 27 individual – one with Plaintiff’s age, education, and work experience, who can work at 28 the light level of exertion, can stand and walk four hours during an eight-hour day, can -4- 1 occasionally climb ladders, ropes, or scaffolds, and occasionally perform other 2 movements – could perform any of Plaintiff’s past work, the VE said “no.” (R. at 47.) 3 The VE did identify other occupations that would be available at the sedentary and light 4 exertional levels. (R. at 48.) In a second hypothetical posed to the VE, the ALJ asked 5 whether, assuming the same limitations as the first hypothetical, but adding that the 6 individual would need to elevate his feet on an at-will basis throughout the day, would 7 any jobs be available. (R. at 48.) The VE responded that the additional limitation would 8 preclude all jobs available under the first hypothetical. (R. at 48.) 9 Plaintiff’s counsel asked the VE whether his opinion under the first hypothetical 10 the ALJ posed would be impacted if added to that hypothetical was an individual’s 11 moderately severe pain that made the individual off task for 10 to 12 percent on average. 12 (R. at 49.) The VE responded that under those circumstances, all work would be 13 precluded, and that assuming a person needed to lie down as frequently as Plaintiff 14 testified to, that would also preclude all work. (R. at 49.) 15 C. 16 ALJ James P. Nguyen issued an opinion dated November 1, 2013, in which he 17 concluded Plaintiff was not disabled under sections 216(i) and 223(d) of the Social 18 Security Act. (R. at 22.) The ALJ began his analysis by stating his finding that Plaintiff 19 met the insured status requirement and had not engaged in substantial gainful activity 20 during the period from his alleged onset date through his date last insured of 21 September 30, 2010. (R. at 16.) The ALJ then listed degenerative disc disease in the 22 cervical spine and lumbar spine, neuropathy in the lower extremities, rotator cuff tear, 23 obstructive sleep apnea, and obesity as severe impairments afflicting Plaintiff. (R. at 16.) The ALJ’s Opinion 24 Proceeding with the five-step inquiry, the ALJ found that the impairments or 25 combination of impairments did not meet the severity of symptoms to meet or equal any 26 of the medical listings. (R. at 17.) The ALJ then stated his finding that Plaintiff had the 27 residual functional capacity (RFC) to perform light work as defined in 20 CFR 28 -5- 1 404.1567(b) with some exceptions, including that Plaintiff can stand and/or walk four 2 hours during an eight-hour day and he can occasionally climb ramps and stairs. (R. at 17.) 3 The ALJ found that Plaintiff’s medically determinable impairments could 4 reasonably be expected to cause his alleged symptoms, but that Plaintiff’s statements 5 regarding the intensity, persistence and limiting effects of the symptoms was not entirely 6 credible. (R. at 18.) The ALJ found Plaintiff’s and his mother’s allegations regarding the 7 severity of Plaintiff’s symptoms were not fully credible because they were greater than 8 expected in light of the objective evidence of record of conservative treatment including 9 epidural blocks, joint injections, pain medications and use of CPAP machine. (R. at 18.) 10 After determining Plaintiff’s RFC, the ALJ found Plaintiff could not perform any 11 past relevant work (R. at 20), but there were jobs in significant numbers in the national 12 economy that Plaintiff could perform (R. at 21). The ALJ thus found Plaintiff was “not 13 disabled.” (R. at 22.) 14 II. LEGAL STANDARDS 15 The district court reviews only those issues raised by the party challenging the 16 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 17 may set aside the Commissioner’s disability determination only if the determination is 18 not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 19 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, but less than a 20 preponderance; it is relevant evidence that a reasonable person might accept as adequate 21 to support a conclusion considering the record as a whole. Id. In determining whether 22 substantial evidence supports a decision, the court must consider the record as a whole 23 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 24 As a general rule, “[w]here the evidence is susceptible to more than one rational 25 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 26 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 27 To determine whether a claimant is disabled for purposes of the Social Security 28 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the -6- 1 burden of proof on the first four steps, but the burden shifts to the Commissioner at step 2 five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 3 determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. 4 § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step 5 two, the ALJ determines whether the claimant has a “severe” medically determinable 6 physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not 7 disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's 8 impairment or combination of impairments meets or medically equals an impairment 9 listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404 (Listing of Impairments). 20 10 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. 11 If not, the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant’s 12 residual functional capacity and determines whether the claimant is still capable of 13 performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not 14 disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, 15 where he determines whether the claimant can perform any other work based on the 16 claimant’s residual functional capacity, age, education, and work experience. 20 C.F.R. § 17 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. 18 Id. 19 III. ANALYSIS 20 Plaintiff argues that the ALJ committed legal error by: (1) rejecting Plaintiff’s 21 symptom testimony in the absence of specific, clear, and convincing reasons supported 22 by substantial evidence; (2) failing to consider the record as a whole when determining 23 Plaintiff was disabled; and (3) failing to provide any basis for the determination of 24 Plaintiff’s work capacities. (Doc. 17, Pl’s Br. at 1.) 25 A. 26 Plaintiff argues that the ALJ erred by failing to provide clear and convincing 27 reasons for rejecting portions of Plaintiff’s symptom testimony. (Pl.’s Br. at 13.) The ALJ 28 discredited Plaintiff’s symptom testimony because he found it was not consistent with the The ALJ Erred By Rejecting Plaintiff’s Symptom Testimony -7- 1 objective evidence of record, which showed, in the ALJ’s opinion, conservative 2 treatment. (R. at 18.) It also appears the ALJ found Plaintiff’s testimony as to his daily 3 activities was not consistent with his alleged symptoms. (R. at 18.) Finally, the ALJ noted 4 there was no reliable medical source statement supporting the extent of Plaintiff’s alleged 5 functional limitations. (R. at 18.) 6 “[U]nless an ALJ makes a finding of malingering based on affirmative evidence 7 thereof, he or she may only find an applicant not credible by making specific findings as 8 to credibility and stating clear and convincing reasons for each.” Robbins v. Soc. Sec. 9 Admin., 466 F.3d 880, 883 (9th Cir. 2006). “The clear and convincing standard is the 10 most demanding required in Social Security cases.” Moore v. Comm’r of Soc. Sec. 11 Admin., 278 F.3d 920, 924 (9th Cir. 2002). When evaluating a claimant’s pain testimony 12 where the claimant has produced objective medical evidence of an underlying 13 impairment, “an ALJ may not reject a claimant’s subjective complaints based solely on a 14 lack of medical evidence to fully corroborate the alleged severity of pain.” Burch v. 15 Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). “General findings are insufficient; rather, 16 the ALJ must identify what testimony is not credible and what evidence undermines the 17 claimant’s complaints.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting 18 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)). 19 Though the ALJ has provided several reasons for discrediting Plaintiff’s 20 testimony, none satisfies the exacting clear and convincing standard that applies here 21 where the ALJ found no evidence of malingering. For example, the ALJ found Plaintiff’s 22 treatment “limited to epidural blocks, joint injections, pain medications, and use of CPAP 23 machine” was conservative. (R. at 18.) Plaintiff’s doctor administering some of this 24 treatment, however, frequently noted that because of Plaintiff’s obesity, minimal 25 treatment was available because his weight initially precluded him from surgery or other 26 more significant treatment. (See, e.g., R. at 445, 451, 485, 494.) 27 In addition, after medical professionals determined Plaintiff’s chronic conditions 28 persisted and were not alleviated by epidural blocks and injections, they recommended -8- 1 surgery, which Plaintiff underwent. (R. at 373–75, 378.) Although this determination and 2 the surgery took place after Plaintiff’s date last insured, Plaintiff’s chronic lower back 3 issues, including degenerative disc disease, were documented prior to the date last 4 insured and continually worsened. (See R. at 435–46, 508, 517, 520–21.) “While the ALJ 5 must consider only impairments (and limitations and restrictions therefrom) that 6 [Plaintiff] had prior to the DLI [date last insured], evidence post-dating the DLI is 7 probative of [Plaintiff’s] pre-DLI disability.” Turner v. Comm’r of Social Security, 613 8 F.3d 1217, 1228–29 (9th Cir. 2010). It is not evident that the ALJ considered Plaintiff’s 9 doctor’s notations that Plaintiff was initially barred from more drastic treatment due to 10 other risk factors and that Plaintiff later received more serious treatment after 11 conservative treatment was ineffective. Accordingly, further development of the record is 12 necessary. 13 The ALJ also reviewed Plaintiff’s diagnostic test results. The ALJ examined 14 results dated August 2010 that revealed various issues including spondylosis, 15 spondylolisthesis, degenerative disc disease, and osteoarthritis of the lumbar spine. (R. at 16 18, 520.) However, the ALJ noted the lack of evidence of spinal stenosis, without 17 explaining why that lack of evidence supports a finding that Plaintiff is not credible, 18 especially in light of the evidence of Plaintiff’s other issues. (See R. at 18.) The ALJ goes 19 on to include degenerative disc disease and neuropathy as severe impairments during the 20 relevant period, but does not explain why the medical record does not support Plaintiff’s 21 symptom testimony or why the testimony lacked credibility. (R. at 18–19.) Thus, the 22 ALJ’s review of the medical record does not constitute a “clear and convincing” reason 23 for discrediting Plaintiff’s testimony. See Moore, 278 F.3d at 924. 24 The ALJ relies on Plaintiff’s testimony regarding his daily activities to support his 25 finding that Plaintiff is not credible. He notes that Plaintiff testified that he cooks, gathers 26 laundry, and cleans his toilet every day. (R. at 18.) The ALJ erred in finding that 27 Plaintiff’s daily activities, if performed in the manner that Plaintiff described, are 28 inconsistent with the pain-related impairments that Plaintiff described in his testimony. -9- 1 Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (“We have repeatedly warned that 2 ALJs must be especially cautious in concluding that daily activities are inconsistent with 3 testimony about pain, because impairments that would unquestionably preclude work and 4 all the pressures of a workplace environment will often be consistent with doing more 5 than merely resting in bed all day.”). The ALJ failed to develop and clarify the record as 6 to the extent to which Plaintiff takes breaks when engaging in such activities and how 7 long the activities take. If, for example, Plaintiff cooks in twenty minute increments once 8 or twice a week, any abilities he employs in cooking for such a short period of time are 9 not likely transferable to the work environment. See Fair v. Bowen, 885 F.2d 597, 603 10 (9th Cir. 1989). When describing his cooking, Plaintiff stated he could cook “once or 11 twice a week,” and with regard to laundry, he stated his mother did the laundry, though 12 he could do so if needed. (R. at 32.) Plaintiff’s statements in context further suggest that 13 his abilities may not be transferable to the work environment and that his statements are 14 not inconsistent with his symptom testimony, especially as to walking and standing 15 limitations. 16 Finally, while there is not a medical source statement endorsing the extent of 17 Plaintiff’s alleged functional limitations, the ALJ fails to point to a statement that 18 contradicts and makes Plaintiff’s symptom testimony not credible in any way. It is not 19 proper for the ALJ to find Plaintiff not credible solely due to a lack of a medical source 20 statement. To the extent the ALJ relied on Plaintiff’s intermittent reports of relief from 21 steroid nerve blocks and epidural steroid injections, there is no evidence that Plaintiff had 22 long-term relief from such treatment, and it is not inconsistent for Plaintiff to have 23 experienced and reported short-term relief while still having long-term pain. Also, to the 24 extent the ALJ found Plaintiff’s failure to lose weight made his testimony not credible, 25 such a finding violates a Social Security Ruling and goes against the case law in this 26 Circuit. See Orn, 495 F.3d at 636. 27 28 Accordingly, the ALJ’s basis for discrediting Plaintiff’s testimony were either improper or require further factual development. See Robins, 466 F.3d at 883. - 10 - 1 2 B. The ALJ Must Consider the Record as a Whole When Determining Whether Plaintiff was Disabled 3 Plaintiff argues that the ALJ explicitly refused to consider evidence after 4 Plaintiff’s date last insured when evaluating the severity of Plaintiff’s condition. (Pl.’s Br. 5 at 21.) Defendant contends the ALJ did not explicitly refuse to consider such evidence, 6 but only stated he would not “discuss” certain evidence. (Doc. 19, Def.’s Br. at 14.) The 7 disputed language from the ALJ’s Opinion is: 8 9 10 11 [T]he claimant underwent a rotator cuff repair in 2011 and lumbar fusion in 2013 (Ex. 3F and Testimony). However, those surgeries occurred after the claimant’s date last insured. As such, that evidence is not discussed within this decision, and any related impairments status-post those surgeries are not considered medically determinable impairments. 12 13 (R. at 16.) Although the ALJ uses the word “discuss” rather than explicitly stating he 14 would not consider the evidence, the Court does not find this semantic difference 15 precludes the possibility that by not discussing the evidence, the ALJ also did not 16 consider the evidence in making his determination. Evidence that post-dates Plaintiff’s 17 date last insured may be probative of his impairments prior to his date last insured. See, 18 e.g., Turner, 613 F.3d at 1228–29; Lester, 81 F.3d at 832 (“medical evaluations made 19 after the expiration of a claimant’s insured status are relevant to an evaluation of the pre- 20 expiration condition”) (citation omitted). 21 To the extent the ALJ did not consider evidence that post-dates Plaintiff’s date last 22 insured, the ALJ shall consider such evidence on remand. Because Plaintiff’s 23 impairments were determined prior to his date last insured and he began conservative 24 treatment during that time, his later treatment, including surgery after successive failures 25 of conservative treatment, is evidence that post-dates his date last insured but may be 26 probative of his pre-expiration condition. See Lester, 81 F.3d at 832. 27 28 - 11 - 1 C. 2 The ALJ Must Develop the Record in Determining Plaintiff’s Work Capacities 3 Plaintiff argues that the ALJ erred because he did not articulate any rationale for 4 his determination of Plaintiff’s RFC that Plaintiff could perform light work. (Pl.’s Br. at 5 22.) Based on the Court’s decision above, on remand, the ALJ must develop the record as 6 to Plaintiff’s testimony and consider medical evidence that post-dates Plaintiff’s date last 7 insured. After such steps, the ALJ will need to make a new determination of Plaintiff’s 8 RFC, and therefore the Court does not review the ALJ’s previous determination of 9 Plaintiff’s RFC. 10 D. 11 Plaintiff asks that the Court apply the “credit-as-true” rule, which would result in 12 remand of Plaintiff’s case for payment of benefits rather than remand for further 13 proceedings. (Pl.’s Br. at 13.) Specifically, Plaintiff states that had the ALJ not rejected 14 Plaintiff’s symptom testimony, he should be entitled to benefits because the VE testified 15 that a person with Plaintiff’s reported symptoms would be unable to perform any work. 16 (Pl.’s Br. at 13, 20–21.) The Credit-As-True Rule Does Not Apply 17 The credit-as-true rule only applies in cases that raise “rare circumstances” that 18 permit the Court to depart from the ordinary remand rule under which the case is 19 remanded for additional investigation or explanation. Treichler v. Comm’r of Soc. Sec. 20 Admin., 775 F.3d 1090, 1099–1102 (9th Cir. 2014). These rare circumstances arise when 21 three elements are present. First, the ALJ fails to provide legally sufficient reasons for 22 rejecting medical evidence. Id. at 1100. Second, the record must be fully developed, there 23 must be no outstanding issues that must be resolved before a determination of disability 24 can be made, and further administrative proceedings would not be useful. Id. at 1101. 25 Further proceedings are considered useful when there are conflicts and ambiguities that 26 must be resolved. Id. Third, if the above elements are met, the Court may “find[] the 27 relevant testimony credible as a matter of law . . . and then determine whether the record, 28 - 12 - 1 taken as a whole, leaves ‘not the slightest uncertainty as to the outcome of [the] 2 proceeding.’” Id. (citations omitted). 3 In this case, the ordinary remand rule, not the credit-as-true rule, applies. Because 4 the ALJ found Plaintiff’s symptom testimony not credible and did not fully develop the 5 record in support of his decision to reject Plaintiff’s testimony, this case still involves 6 evidentiary conflicts that must be resolved, and there is still uncertainty as to the outcome 7 of the proceeding. 8 IT IS THEREFORE ORDERED reversing the decision of the Administrative 9 Law Judge (R. at 11–26) as upheld by the Appeals Council (R. at 1–6). The Court 10 remands this matter for further proceedings as to Plaintiff’s symptom testimony and 11 evidence that post-dates Plaintiff’s date last insured. 12 13 14 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly and close this matter. Dated this 3rd day of June, 2016. 15 16 17 Honorable John J. Tuchi United States District Judge 18 19 20 21 22 23 24 25 26 27 28 - 13 -

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