Clayton C Craine v. Carolyn W Colvin

Filing 30

MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for further proceedings consistent with this Memorandum Opinion. SEE ORDER FOR DETAILS. (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 CLAYTON C. CRAINE, 13 Plaintiff, 14 15 v. 16 NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 15-2344-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on November 13, 2015, seeking review of the Commissioner’s1 22 denial of his application for Supplemental Security Income (“SSI”) payments. The parties filed 23 Consents to proceed before the undersigned Magistrate Judge on December 9, 2015, and 24 December 11, 2015. 25 (alternatively “JS”) on April 3, 2017, that addresses their positions concerning the disputed issues Pursuant to the Court’s Order, the parties filed a Joint Stipulation 26 27 28 1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Berryhill, the current Acting Commissioner of Social Security, is hereby substituted as the defendant herein. 1 in the case. The Court has taken the Joint Stipulation under submission without oral argument. 2 3 II. 4 BACKGROUND 5 Plaintiff was born on August 24, 1963. [Administrative Record (“AR”) at 127, 337.] He has 6 past relevant work experience as a delivery driver-courier and a warehouse worker. [AR at 336, 7 369.] 8 On April 25, 2007, plaintiff protectively filed an application for SSI payments, alleging that 9 he has been unable to work since April 20, 2007. [AR at 127.] After his application was denied 10 initially and upon reconsideration, and after a hearing, an unfavorable decision was issued on May 11 4, 2009. [AR at 435-42.] Plaintiff filed a complaint in this Court in case number CV 09-8851-PLA, 12 and on January 3, 2011, the Court remanded the matter for further proceedings. [AR at 447-57.] 13 On July 11, 2011, December 20, 2011, and March 28, 2013, three hearings were held after 14 remand by a different ALJ, at each of which plaintiff appeared represented by an attorney and 15 testified on his own behalf. [AR at 349-80, 381-96, 397-400.] A vocational expert (“VE”) also 16 testified at the March 28, 2013, hearing. [AR at 369, 375-78, 380.] On April 26, 2013, the ALJ 17 issued a decision concluding that plaintiff was not under a disability since April 20, 2007, the date 18 the application was filed. [AR at 326-38.] Plaintiff requested review of the ALJ’s decision by the 19 Appeals Council, and when the Appeals Council denied plaintiff’s request for review on September 20 18, 2015 [AR at 312-17], the ALJ’s decision became the final decision of the Commissioner. See 21 Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action 22 followed. 23 24 III. 25 STANDARD OF REVIEW 26 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 27 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 28 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 2 1 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 2 “Substantial evidence means more than a mere scintilla but less than a preponderance; it 3 is such relevant evidence as a reasonable mind might accept as adequate to support a 4 conclusion.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (citation 5 and internal quotation marks omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) 6 (same). When determining whether substantial evidence exists to support the Commissioner’s 7 decision, the Court examines the administrative record as a whole, considering adverse as well 8 as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citation omitted); 9 see Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (“[A] reviewing court must 10 consider the entire record as a whole and may not affirm simply by isolating a specific quantum 11 of supporting evidence.”) (citation and internal quotation marks omitted). “Where evidence is 12 susceptible to more than one rational interpretation, the ALJ’s decision should be upheld.” Ryan, 13 528 F.3d at 1198 (citation and internal quotation marks omitted); see Robbins v. Soc. Sec. Admin., 14 466 F.3d 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing the 15 ALJ’s conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.”) 16 (citation omitted). 17 18 IV. 19 THE EVALUATION OF DISABILITY 20 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 21 to engage in any substantial gainful activity owing to a physical or mental impairment that is 22 expected to result in death or which has lasted or is expected to last for a continuous period of at 23 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 24 1992). 25 26 A. THE FIVE-STEP EVALUATION PROCESS 27 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 28 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 3 1 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must 2 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 3 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 4 substantial gainful activity, the second step requires the Commissioner to determine whether the 5 claimant has a “severe” impairment or combination of impairments significantly limiting his ability 6 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 7 If the claimant has a “severe” impairment or combination of impairments, the third step requires 8 the Commissioner to determine whether the impairment or combination of impairments meets or 9 equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 404, 10 subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If 11 the claimant’s impairment or combination of impairments does not meet or equal an impairment 12 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 13 sufficient “residual functional capacity” to perform his past work; if so, the claimant is not disabled 14 and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform 15 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 16 case of disability is established. Id. The Commissioner then bears the burden of establishing 17 that the claimant is not disabled, because he can perform other substantial gainful work available 18 in the national economy. Id. The determination of this issue comprises the fifth and final step 19 in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 20 966 F.2d at 1257. 21 22 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 23 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 24 April 20, 2007, the application date. [AR at 328.] At step two, the ALJ concluded that plaintiff has 25 the following severe impairments: [L]umbar disc disease; status-post anterior and posterior L5-S1 spinal fusion; cervical strain; status-post carpal tunnel syndrome release right wrist and hand; chronic prepatellar bursitis, left knee; and left shoulder strain; gout; and lupus. 26 27 28 [Id.] She also found that plaintiff’s medically determinable impairment of depression was 4 1 nonsevere. [AR at 329.] At step three, the ALJ determined that plaintiff does not have an 2 impairment or a combination of impairments that meets or medically equals any of the impairments 3 in the Listing. [AR at 330.] The ALJ further found that plaintiff retained the residual functional 4 capacity (“RFC”)2 to perform light work as defined in 20 C.F.R. § 416.967(b),3 with the following 5 exceptions: 6 14 [L]ifting and/or carrying 20 pounds occasionally and 10 pounds frequently; standing and/or walking 6 hours in an 8-hour workday with customary breaks; sitting 6 hours in an 8-hour workday with customary breaks; he would need to alternate positions between sitting and standing at 45-minute intervals for one to five minutes at the work station; he can occasionally kneel, stoop, crawl, and crouch; he can occasionally climb ramps and stairs; he can never climb ladders, ropes, or scaffolds; he can frequently use the upper extremities, bilaterally for fine and gross manipulations; he would be able to occasionally use the upper extremities for overhead reaching, i.e., above shoulder level; he would be able to use the upper and lower extremities for forceful pushing and pulling within the weight restrictions noted above; he would need to avoid concentrated exposure to extremely cold temperatures and pulmonary irritants such as dusts, fumes, gases, and odors; he would be able to sustain concentration and attention, persistence and pace in at least two hour blocks of time; he would be able to interact appropriately to coworkers, supervisors, and the general public; and due to pain and side effects of medication he would not be able to do complex or detailed tasks, but would remain capable of understanding, remembering, and carrying out unskilled tasks. 15 [Id.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded that 16 plaintiff is able to perform his past relevant work as a delivery driver-courier. [AR at 336.] The ALJ 17 made an alternative finding at step five that there are other jobs existing in the national economy 18 that plaintiff is also able to perform, including work as a “checker I” (Dictionary of Occupational 19 Titles (“DOT”) No. 222.687-010), “assembl[er] of small parts” (DOT No. 706.684-022), and 7 8 9 10 11 12 13 20 2 21 22 23 24 25 26 27 28 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 416.967(b). 5 1 “counter clerk” (DOT No. 249.366-010). [AR at 338, 378.] Accordingly, the ALJ determined that 2 plaintiff was not disabled at any time since April 20, 2007, the date the application was filed. [AR 3 at 338.] 4 5 V. 6 THE ALJ’S DECISION 7 Plaintiff contends that the ALJ erred when she: (1) determined that plaintiff could perform 8 his past work or alternative work; and (2) rejected plaintiff’s subjective symptom testimony. [JS 9 at 5.] As set forth below, the Court agrees with plaintiff, in part, and remands for further 10 proceedings. 11 12 A. REASONING LEVEL 2 13 According to the DOT, occupations with reasoning level 1 require the ability to “apply 14 commonsense understanding to carry out simple one- or two-step instructions [and] [d]eal with 15 standardized situations with occasional or no variables in or from these situations encountered on 16 the job.” [JS at 7; DOT App. C.] In contrast, reasoning level 2 requires the individual to carry out 17 “detailed but uninvolved written or oral instructions.” [JS at 6-9 (emphasis added); DOT App. C.] 18 Plaintiff contends that because the ALJ determined that he is not able to do complex or detailed 19 tasks, he is unable to perform his past relevant work, or any of the alternative work identified by 20 the VE, because each of those occupations requires the ability to perform detailed tasks at 21 reasoning level 2. 22 Defendant counters that “the ALJ’s decision overall indicates that her formulation 23 [precluding plaintiff from complex or detailed tasks] is akin to [being able to perform] ‘simple 24 repetitive tasks’”; that notwithstanding the DOT classification of his past relevant work as requiring 25 reasoning level 2, plaintiff can perform his past work as actually performed as he described it 26 because “nothing in Plaintiff’s description [of his past work] was complex or detailed, nor did it 27 require skilled work”; that because the mental demands of unskilled work include the ability to 28 understand, carry out, and remember simple instructions, “there is no conflict between unskilled 6 1 work and Reasoning Level Two in the DOT”; and “looking at the ALJ’s decision as a whole, a 2 reasonable person could find that [the ALJ] did not intend to limit Plaintiff to Reasoning Level One 3 in her RFC finding.” [JS at 9-14.] 4 Preliminarily, the Court notes that the Administration defines “unskilled work” -- or unskilled 5 “tasks” as the ALJ stated here -- as “work which needs little or no judgment to do simple duties 6 that can be learned on the job in a short period of time . . . . [A] person can usually learn to do the 7 job in 30 days, and little specific vocational preparation and judgment are needed.” 20 C.F.R. § 8 416.968(a). Unskilled jobs “ordinarily involve dealing primarily with objects, rather than with data 9 or people . . . .” Soc. Sec. Ruling 85-15. All jobs listed in the DOT have both general education 10 development (“GED”) reasoning levels and SVP levels, which are “two separate vocational 11 considerations.” Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 (C.D. Cal. 2005). “SVP ratings 12 speak to the issue of the level of vocational preparation necessary to perform the job, not directly 13 to the issue of a job’s simplicity, which appears to be more squarely addressed by the GED 14 [reasoning level] ratings.” Id. Thus, defendant’s argument -- that “Plaintiff’s past relevant work 15 as a delivery driver, as well as [the] three alternative representative occupations were classified 16 in the DOT as SVP 2” [JS at 11], and, therefore, “there is no conflict between unskilled work and 17 Reasoning Level Two in the DOT” [JS at 12] -- improperly conflates the jobs’ SVP and GED 18 reasoning levels. 19 Although a limitation to simple repetitive tasks may be consistent with reasoning level 2, 20 Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015), a limitation to one- to two-step instructions 21 may not be consistent. Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1003-04 (9th Cir. 22 2015) (finding an apparent conflict between the claimant’s RFC limitation to “one to two step tasks” 23 and the three representative jobs the ALJ concluded she was capable of performing, each of 24 which required reasoning level 2). In Rounds, the ALJ confirmed at the outset of the VE’s 25 testimony that he would assume the VE’s testimony “is based on [his] knowledge, education, 26 training, and experience consistent with the DOT,” unless the VE told him otherwise. Id. at 1003. 27 In his decision, the ALJ concluded that the VE’s testimony -- that the hypothetical individual with 28 a limitation to one- to two-step tasks could perform reasoning level 2 occupations -- was consistent 7 1 with the DOT, “and never directly addressed whether [the claimant’s] limitation to one- to two-step 2 tasks was consistent with jobs requiring Level Two reasoning and, if so, why.” Id. Noting that the 3 RFC limitation was worded in a similar fashion to the requirements for level 1 reasoning, the court 4 rejected the Commissioner’s argument that Rounds’ inability to complete multi-step tasks “does 5 not necessarily contradict the VE’s opinion that [Rounds] has the ability to follow detailed 6 instructions, as required in Level Two Jobs.” Id. The court then specifically noted that “[o]nly 7 tasks with more than one or two steps would require ‘detailed’ instructions . . . [a]nd these are 8 precisely the kinds of tasks Rounds’ RFC indicates she cannot perform.” Id. The Ninth Circuit 9 found that there was an apparent conflict between the claimant’s RFC limitation to “one to two step 10 tasks,” and the demands of reasoning level 2. Id. at 1003. Because the ALJ had not recognized 11 the apparent conflict, the ALJ had not asked the VE to explain the conflict and the Ninth Circuit 12 remanded the matter for further proceedings. Id. at 1003-04. The court also found that the ALJ’s 13 failure to reconcile the apparent conflict was not harmless because he “did not merely restrict 14 Rounds to ‘simple’ or ‘repetitive’ tasks. Instead, he expressly limited her to ‘one to two step tasks,’ 15 apparently to address her ‘moderate’ problems with memory and concentration.” Id. at 1004. 16 Here, the ALJ did not explicitly limit plaintiff either to one- or two-step instructions or to 17 simple repetitive tasks. Instead, she found plaintiff precluded from “complex or detailed tasks.” 18 [AR at 329.] She specifically explained in her decision that she “included limitations in the [RFC] 19 that due to pain and side effects of medication [plaintiff] would not be able to do complex or 20 detailed tasks but would remain capable of understanding, remembering, and carrying out 21 unskilled tasks to generously consider any reported memory problems.” [AR at 329.] This 22 limitation was included in the hypothetical to the VE. [AR at 376.] Notwithstanding the ALJ’s 23 “[a]typical formulation” of plaintiff’s RFC limitation [see JS at 10], the Court finds that Rounds is 24 analogous and follows its determination that reasoning level 2 occupations, which require the 25 individual to carry out “detailed but uninvolved written or oral instructions,” require more than one 26 or two steps to perform the occupation. See Rounds, 807 F.3d at 1003 (“[o]nly tasks with more 27 than one or two steps would require ‘detailed’ instructions,” such as required by reasoning level 28 2 occupations). Thus, as in Rounds, there is an apparent conflict between plaintiff’s RFC limitation 8 1 to “[non]-detailed or [non]-complex tasks” and occupations with level 2 reasoning, which, by 2 definition, involve “detailed” instructions. The ALJ did not recognize the apparent conflict between 3 plaintiff’s RFC and the demands of level 2 reasoning and, therefore, the VE did not address 4 whether the conflict could be resolved. In fact, although the ALJ asked the VE to confirm that his 5 consideration of the “sit/stand option” was based on his “professional training and experience,” she 6 never confirmed with the VE that his testimony was otherwise consistent with the DOT. [See AR 7 at 369, 375-78, 380.] As in Rounds, the ALJ’s failure to address the error was not harmless. 8 Defendant also argues that the delivery driver occupation as plaintiff actually performed it, 9 as described by plaintiff, does not “require[] activities exceeding [plaintiff’s] RFC.” [JS at 10.] She 10 notes that nothing in plaintiff’s description of that work, which consisted of delivering paperwork 11 to real estate offices or delivering prescriptions to retirement homes [see AR at 167-68, 389], “was 12 complex or detailed, nor did it require skilled work.” [JS at 11.] Defendant contends, therefore, 13 that plaintiff has not proved that he was unable to perform this job as actually performed and, 14 therefore, “the Court should affirm on this basis alone.” [Id.] The only discussion on this issue by 15 the ALJ, however, noted that the delivery driver-courier occupation as defined in the DOT “is a 16 light, unskilled occupation as generally performed pursuant to the DOT and as actually performed 17 by [plaintiff].” [AR at 336 (emphases added).] This appears to be based on the VE’s testimony: 18 19 21 [F]rom his testimony and a review of the case file, this gentleman has worked as a warehouse worker, in the DOT at 922.687-058, SVP: 2, unskilled, and medium work, however done at the very heavy work category. Further, he worked as a delivery driver. In the DOT at 230.663010, SVP: 2, unskilled, light work and that’s what I found. 22 [AR at 369 (emphasis added).] Thus, neither the ALJ nor the VE provided any evidence or 23 discussion reflecting that this occupation as actually performed by plaintiff involved something less 24 than reasoning level 2 abilities. Because “[l]ong-standing principles of administrative law require 25 [this Court] to review the ALJ’s decision based on the reasoning and factual findings offered by 26 the ALJ -- not post hoc rationalizations that attempt to intuit what the adjudicator may have been 27 thinking,” Bray v. Astrue, 554 F.3d 1219, 1225-26 (9th Cir. 2009) (emphasis added; citation 28 omitted), the Court cannot affirm the ALJ’s decision on a ground that the ALJ did not consider in 20 9 1 making his decision. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (“[W]e cannot 2 affirm the decision of an agency on a ground that the agency did not invoke in making its 3 decision.”). 4 Remand is warranted on this issue. 5 6 B. SUBJECTIVE SYMPTOM TESTIMONY 7 Plaintiff contends the ALJ failed to articulate legally sufficient reasons for rejecting plaintiff’s 8 subjective symptom testimony. [JS at 14-23.] Specifically, the ALJ discounted plaintiff’s subjective 9 symptom testimony as follows: 10 11 12 13 14 15 The undersigned finds [plaintiff’s] allegations concerning the intensity, persistence and limiting effects of his symptoms are less than fully credible. [Plaintiff] attempted to minimize his daily activities. [Plaintiff] alleged that he can only lift up to 5 pounds, walk 20 yards, and sit up to 30 minutes until he experiences significant pain. The degree of self-asserted limitations is not supported by the objective medical evidence including the diagnostic findings, which indicates an attempt by [plaintiff] to exaggerate the severity of his symptoms. Even if [plaintiff’s] daily activities are truly as limited as alleged, it is difficult to attribute that degree of limitation to [plaintiff’s] medical condition, as opposed to other reasons, in view of the relatively benign medical evidence and other factors discussed in this decision. [Plaintiff] testified that he is homeless and lived in his van. It appears the limited range of daily activities is a lifestyle choice and not due to any established impairment. 16 17 18 19 Prior to his alleged onset date, [plaintiff] did undergo surgeries for his alleged impairments, which certainly suggests that the symptoms were genuine. While that fact would normally weigh in [plaintiff’s] favor, it is offset by the fact that the record reflects that the surgery was generally successful in relieving the symptoms. . . . The credibility of [plaintiff’s] allegations regarding the severity of his symptoms and limitations is diminished because those allegations are greater than expected in light of the objective evidence of record. 20 21 [AR at 331-32.] 22 “To determine whether a claimant’s testimony regarding subjective pain or symptoms is 23 credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 24 1035-36 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has presented 25 objective medical evidence of an underlying impairment ‘which could reasonably be expected to 26 produce the pain or other symptoms alleged.’” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 27 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter, 504 F.3d at 1036) (internal quotation marks 28 omitted). If the claimant meets the first test, and the ALJ does not make a “finding of malingering 10 1 based on affirmative evidence thereof” (Robbins, 466 F.3d at 883), the ALJ must “evaluate the 2 intensity and persistence of [the] individual’s symptoms . . . and determine the extent to which 3 [those] symptoms limit his . . . ability to perform work-related activities . . . .” SSR 16-3p, 2016 WL 4 1119029, at *4. An ALJ must provide specific, clear and convincing reasons for rejecting a 5 claimant’s testimony about the severity of his symptoms. Treichler, 775 F.3d at 1102; Benton v. 6 Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). 7 credibility] are insufficient; rather, the ALJ must identify what testimony is not credible and what 8 evidence undermines the claimant’s complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 9 2014) (quoting Lester, 81 F.3d at 834) (quotation marks omitted). The ALJ’s findings “‘must be 10 sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s 11 testimony on permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding 12 pain.’” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 13 F.2d 345-46 (9th Cir. 1991) (en banc)). A “reviewing court should not be forced to speculate as 14 to the grounds for an adjudicator’s rejection of a claimant’s allegations of disabling pain.” Bunnell, 15 947 F.2d at 346. As such, an “implicit” finding that a plaintiff’s testimony is not credible is 16 insufficient. Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (per curiam). “General findings [regarding a claimant’s 17 On March 28, 2016, after the ALJ’s assessment in this case, SSR 16-3p went into effect. 18 See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). SSR 16-3p supersedes SSR 96-7p, the 19 previous policy governing the evaluation of subjective symptoms. Id. at *1. SSR 16-3p indicates 20 that “we are eliminating the use of the term ‘credibility’ from our sub-regulatory policy, as our 21 regulations do not use this term.” Id. Moreover, “[i]n doing so, we clarify that subjective symptom 22 evaluation is not an examination of an individual’s character[;] [i]nstead, we will more closely follow 23 our regulatory language regarding symptom evaluation.” Id. Thus, the adjudicator “will not assess 24 an individual’s overall character or truthfulness in the manner typically used during an adversarial 25 court litigation. The focus of the evaluation of an individual’s symptoms should not be to determine 26 whether he or she is a truthful person.” Id. at *10. The ALJ is instructed to “consider all of the 27 evidence in an individual’s record,” “to determine how symptoms limit ability to perform work- 28 related activities.” Id. at *2. The ALJ’s 2013 decision was issued before March 28, 2016, when 11 1 SSR 16-3p became effective, and there is no binding precedent interpreting this new ruling 2 including whether it applies retroactively. Compare Ashlock v. Colvin, 2016 WL 3438490, at *5 3 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to an ALJ decision issued prior to 4 the effective date), with Lockwood v. Colvin, 2016 WL 2622325, at *3 n.1 (N.D. Ill. May 9, 2016) 5 (applying SSR 16-3p retroactively to a 2013 ALJ decision); see also Smolen v. Chater, 80 F.3d 6 1273, 1281 n.1 (9th Cir. 1996) (“We need not decide the issue of retroactivity [as to revised 7 regulations] because the new regulations are consistent with the Commissioner’s prior policies and 8 with prior Ninth Circuit case law”) (citing Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993) 9 (because regulations were intended to incorporate prior Social Security Administration policy, they 10 should be applied retroactively)). Here, SSR 16-3p on its face states that it is intended only to 11 “clarify” the existing regulations. 12 consideration of other issues, the Court need not resolve the retroactivity issue. Notwithstanding 13 the foregoing, SSR 16-3p shall apply on remand. However, because this matter is being remanded for 14 Plaintiff argues that none of the reasons provided by the ALJ for discounting his testimony 15 is specific and legitimate, let alone clear and convincing [JS at 14-23], and defendant counters 16 these arguments. [JS at 23-27.] Because the matter is being remanded for reconsideration of 17 whether plaintiff can perform his past relevant work or alternative occupations and, because 18 subsequent to the ALJ’s decision the regulations governing the analysis of subjective symptom 19 complaints were clarified by SSR 16-3p, the ALJ on remand shall also reconsider plaintiff’s 20 subjective symptom testimony and provide specific, clear and convincing reasons for discounting 21 plaintiff’s subjective symptom testimony if warranted, applying SSR 16-3p. See Treichler, 775 22 F.3d at 1103 (citation omitted) (the “ALJ must identify the testimony that was not credible, and 23 specify ‘what evidence undermines the claimant’s complaints.’”); Brown-Hunter, 806 F.3d at 493- 24 94 (the ALJ must identify the testimony he found not credible and “link that testimony to the 25 particular parts of the record” supporting his non-credibility determination). 26 / 27 28 12 1 VI. 2 REMAND FOR FURTHER PROCEEDINGS 3 The Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 4 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further 5 proceedings, or where the record has been fully developed, it is appropriate to exercise this 6 discretion to direct an immediate award of benefits. See Lingenfelter, 504 F.3d at 1041; Benecke 7 v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). Where there are outstanding issues that must 8 be resolved before a determination can be made, and it is not clear from the record that the ALJ 9 would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is 10 appropriate. See Benecke, 379 F.3d at 593-96. 11 In this case, there are outstanding issues that must be resolved before a final determination 12 can be made. In an effort to expedite these proceedings and to avoid any confusion or 13 misunderstanding as to what the Court intends, the Court will set forth the scope of the remand 14 proceedings. First, the ALJ on remand, in accordance with SSR 16-3p, shall reassess plaintiff’s 15 subjective symptom allegations and either credit his testimony as true, or provide specific, clear 16 and convincing reasons, supported by substantial evidence in the case record, for discounting or 17 rejecting any testimony.4 Next, the ALJ shall obtain VE testimony to resolve the inconsistency 18 between the ALJ’s RFC determination that plaintiff is precluded from complex or detailed tasks 19 and the DOT job requirements for his past relevant work as a delivery driver-courier and/or for the 20 three alternative occupations as set forth in the ALJ’s April 26, 2013, decision, all of which require 21 reasoning level 2 abilities. 22 inconsistency between plaintiff’s preclusion from complex or detailed tasks and the DOT jobs 23 requiring level 2 reasoning skills, the ALJ shall determine at step four, with the assistance of a VE 24 if necessary, whether plaintiff is capable of performing his past relevant work as a delivery driver- Next, based on the VE’s testimony regarding the apparent 25 26 27 28 4 Nothing herein is intended to disrupt the ALJ’s overall RFC determination, unless further limitations are determined to be necessary in light of the ALJ’s reconsideration of plaintiff’s subjective symptom testimony. 13 1 courier.5 If plaintiff is not so capable, or if the ALJ determines to make an alternative finding at 2 step five, then the ALJ shall proceed to step five and determine, with the assistance of a VE if 3 necessary, whether there are jobs existing in significant numbers in the regional and national 4 economy that plaintiff can still perform in light of his RFC limitations, including his preclusion from 5 complex or detailed tasks. 6 7 VII. 8 CONCLUSION 9 IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; (2) the 10 decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further 11 proceedings consistent with this Memorandum Opinion. 12 13 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 14 15 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 16 17 DATED: April 11, 2017 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 5 28 Nothing herein is intended to disrupt the ALJ’s step four finding that plaintiff is unable to perform his past relevant work as a warehouse worker. 14

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