Miguel Melendez Meza v. Carolyn W Colvin

Filing 22

MEMORANDUM AND OPINION by Magistrate Judge Karen L. Stevenson re: The Court finds that the ALJ failed to satisfy his obligation to resolve ambiguities and to articulate legally sufficient reasons for discounting medical source opinion and remands f or further proceedings. IT IS ORDERED that the decision of the Commissioner is REMANDED for reconsideration. IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff andfor defendant. (rh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MIGUEL MELENDEZ MEZA, 11 CASE NO. 5:16-cv-01286-KS Plaintiff 12 v. 13 14 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, 15 MEMORANDUM OPINION AND ORDER Defendant. 16 INTRODUCTION 17 18 19 On June 16, 2016, Plaintiff, Miguel Melendez Meza (“Plaintiff”), filed a 20 Complaint seeking judicial review of a denial of his application for a period of 21 disability, disability insurance benefits and supplemental security income (together 22 “benefits”). (Complaint, ECF No. 1.) On July 19, 2016 the parties consented, 23 pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States 24 Magistrate Judge. (Consents, ECF Nos. 10, 12.) On March 16, 2017, the parties 25 filed a Joint Stipulation, whereby Plaintiff seeks an order reversing the 26 Commissioner’s decision and awarding benefits, or in the alternative remanding the 27 28 1 The Court notes that Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court orders that the caption be amended to substitute Nancy A. Berryhill for Carolyn Colvin as the defendant in this action. 1 matter for further administrative proceedings; and Defendant seeks an order 2 affirming the Commissioner’s decision. (Joint Stip., ECF No. 19). The Court has 3 taken the Joint Stipulation under submission without oral argument. 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 On March 14, 2012, Plaintiff filed an application for benefits, alleging 8 disability beginning July 29, 2009. 9 Plaintiff’s claim was denied initially on December 28, 2012 and upon 10 reconsideration on October 3, 2013. (A.R. 135-39; 144-49.) On October 16, 2013, 11 Plaintiff requested a hearing, which was held on September 5, 2014. (A.R. 159-60, 12 43-67.) Administrative Law Judge Michael D. Radensky (“ALJ”) presided over the 13 hearing which included testimony by an impartial vocational expert (“VE”) and 14 Plaintiff who was represented by a non-attorney and aided by a Spanish interpreter. 15 (A.R. 29.) Born on September 10, 1957, Plaintiff was about to turn 57, the week 16 after his hearing.2 (A.R. 48; 266.) In a written decision dated November 7, 2014, 17 the ALJ denied benefits. (A.R. 23-38.) On April 13, 2016, the Appeals Council 18 denied Plaintiff’s request for review of that decision. (A.R. 1-6.) Plaintiff then filed 19 this civil action. (Administrative Record (“A.R.”) 266-74.) 20 21 SUMMARY OF ADMINISTRATIVE DECISION 22 23 The ALJ utilized the five-step sequential evaluation process to determine 24 whether Plaintiff was disabled. 20 C.F.R. § 416.920. At the first step, the ALJ 25 found that Plaintiff met the insured status requirements of the Social Security Act 26 (“SSA”). (A.R. 31.) At the second step, the ALJ found that although Plaintiff had 27 28 2 At the time of his hearing, Plaintiff was 56 years old, within the classification of “[p]erson of advanced age” i.e. those persons aged 55 or older, because age is considered to significantly affect a person’s vocational ability to adjust to other work. 20 C.F.R. § 404.1563(e). 2 1 “worked” after the alleged disability onset date, he had not engaged in anything that 2 amounted to substantial gainful activity since that date. (A.R. 31.) At the third step, 3 the ALJ found that Plaintiff suffered from severe, and medically determinable, 4 impairments consisting of a history of left knee impairment, history of left knee 5 arthroscopy, back pain, degenerative changes of the right knee, history of prostate 6 cancer treated without recurrence, and hearing impairment. (A.R. 31.) 7 8 At the fourth step, the ALJ applied the guidelines contained in 20 C.F.R. §§ 9 404.1520(d), 404.1525, and 404.1526, and found that the severity of Plaintiff’s 10 impairments did not meet or “equal” the criteria contained in the appropriate listings 11 1.00, 2.00, 13.00, and all other relevant listings contained in 20 C.F.R., Part 404, 12 Subpart P, Appendix 1. (A.R. 33.) 13 14 At the fifth step, the ALJ determined that Plaintiff had a residual functional 15 capacity (“RFC”) to perform medium work with the following nonexertional 16 limitations: 17 18 [Plaintiff] can frequently perform postural activities and must avoid work 19 situations that require acute, precise, detailed hearing or where hearing is 20 necessary to avoid hazardous situations. In addition, [Plaintiff] must avoid 21 concentrated exposure to excessive noise levels. 22 23 (A.R. 33.) 24 25 In making the RFC assessment, the ALJ considered evidence of Plaintiff’s 26 daily activities as reflected in his own Function Report and his stepdaughter’s Third 27 Party Function Report, Plaintiff’s hearing testimony, objective clinical and 28 diagnostic findings since the alleged onset date (including treatment record, progress 3 1 notes, MRI results from December 2009, radiology reports from June 2013 and 2 September 2013, colonoscopy results from May 2014, and objective results of 3 auditory testing in September 2012. 4 medical opinions from: qualified medical examiners, Dr. Louis Dean, M.D. and Dr. 5 Khalid A. Ahmed (who were both involved in Plaintiff’s worker’s compensation 6 claim), consultative examining audiologist Dr. William W. Goral, M.D., 7 consultative examiner orthopedist, Dr. Vicente R. Bernabe, D.O., and consultative 8 examiner internist, Dr. Seung Ha Lim, M.D. (A.R. 33-36.) (A.R. 33-37.) The ALJ also considered 9 10 Presented with the above referenced limitations, the VE testified that Plaintiff 11 could perform his past relevant work of door installer, a medium, semiskilled 12 occupation classified under Dictionary of Occupational Titles (“DOT”) 809.684- 13 030, as actually and generally performed. (A.R. 37-38.) 14 15 The ALJ noted that the VE’s testimony was consistent with the information 16 contained in the DOT. (A.R. 38.) Accepting that testimony, the ALJ found that 17 Plaintiff could perform his past relevant work as actually performed and as generally 18 performed in the regional and national economy and thereby concluded that Plaintiff 19 “is not disabled under section 1614(a)(3)(A) of the Social Security Act.” (Id.) 20 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine 24 whether it is free from legal error and supported by substantial evidence in the 25 record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial 26 evidence is more than a mere scintilla but less than a preponderance; it is such 27 relevant evidence as a reasonable mind might accept as adequate to support a 28 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 4 1 2014) (internal quotation marks and citations omitted). “Even when the evidence is 2 susceptible to more than one rational interpretation, [reviewing courts] uphold the 3 ALJ’s findings if they are supported by inferences reasonably drawn from the 4 record.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The Court will 5 also not reverse the Commissioner’s decision “[w]here evidence is susceptible to 6 more than one rational interpretation,” even if it were to disagree with the ALJ’s 7 conclusions. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 8 9 Where the ALJ has properly considered all of the limitations for which there 10 is record support, the ALJ’s RFC determination will not be overturned so long as the 11 ALJ applied the correct legal standard and the RFC assessment is supported by 12 substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 13 Although this Court cannot substitute its discretion for that of the ALJ, it must 14 nonetheless review the record as a whole, “weighing both the evidence that supports 15 and the evidence that detracts from the Commissioner’s conclusion.” Lingenfelter v. 16 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation 17 omitted). “The ALJ is responsible for determining credibility, resolving conflicts in 18 medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 19 1035, 1039 (9th Cir. 1995). 20 21 The Court may review only the reasons stated by the ALJ in her decision “and 22 may not affirm the ALJ on a ground upon which [s]he did not rely.” Orn, 495 F.3d 23 at 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). However, 24 the Court will not reverse the Commissioner’s decision if it is based on harmless 25 error, which exists when it is “clear from the record that an ALJ’s error was 26 ‘inconsequential to the ultimate nondisability determination’” or if despite the legal 27 error, ‘the agency’s path may reasonably be discerned.’” Robbins v. Soc. Sec. 28 Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm’r of Soc. Sec., 5 1 454 F.3d 1050, 1055 (9th Cir. 2006)); Brown-Hunter v. Colvin, 806 F.3d 487, 492 2 (9th Cir. 2015) (internal citations omitted). 3 4 Courts must “remand for further proceedings when . . . an evaluation of the 5 record as a whole creates serious doubt that a claimant is, in fact, disabled.” 6 Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014); see also Burrell v. Colvin, 7 775 F.3d 1133, 1140-42 (9th Cir. 2014). 8 DISCUSSION 9 10 11 Plaintiff challenges the ALJ’s decision on the basis that: in making the RFC 12 assessment, the ALJ committed harmful legal error in evaluating the opinion of 13 examining physician, Dr. Louis Dean, M.D. and improperly determined that 14 Plaintiff could perform his past relevant work. (Joint Stip. at 4.) For the following 15 reasons, the Court finds that the ALJ failed to satisfy his obligation to resolve 16 ambiguities and to articulate legally sufficient reasons for discounting Dr. Dean’s 17 medical source opinion and remands for further proceedings. 18 19 I. Applicable Law 20 21 “The ALJ is responsible for translating and incorporating clinical findings 22 into a succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th 23 Cir. 2015). In doing so, the ALJ must articulate a “substantive basis” for rejecting a 24 medical opinion or crediting one medical opinion over another. Garrison, 759 F.3d 25 at 1012; see also Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (“an ALJ 26 cannot in its decision totally ignore a treating doctor and his or her notes, without 27 even mentioning them”). An ALJ errs when he discounts a treating or examining 28 physician’s medical opinion, or a portion thereof, “while doing nothing more than 6 1 ignoring it, asserting without explanation that another medical opinion is more 2 persuasive, or criticizing it with boilerplate language that fails to offer a substantive 3 basis for his conclusion.” See Garrison, 759 F.3d at 1012-13 (citing Nguyen v. 4 Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). 5 6 II. The ALJ’s evaluation of the opinion of examining physician, Dr. Louis Dean, M.D. 7 8 9 Here, the ALJ afforded great weight to the opinion of Dr. Dean because he 10 examined Plaintiff and conducted objective testing. (A.R. 36.) However, Plaintiff 11 argues that the ALJ misevaluated Dr. Dean’s report and opinions by ignoring 12 revisions that Dr. Dean had made to his own opinions between April 7, 2011 and 13 January 16, 2012. (Joint Stip. at 18-19.) For instance, at the latter evaluation, Dr. 14 Dean added that Plaintiff was precluded from prolonged weight-bearing and could 15 not perform his usual and customary duties. (Id. citing A.R. 35 and comparing A.R. 16 403 with 387.) Plaintiff argues that in failing to reconcile the change in Dr. Dean’s 17 opinions, the ALJ did not meet his burden of articulation in providing specific and 18 legitimate reasons to reject an examining physician’s opinion based on substantial 19 evidence in the record. (Id. citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 20 1995).) 21 22 Based on this Court’s review, the record contains three written reports from 23 Dr. Dean. (A.R. 380-404.) The first report is dated April 25, 2011 and states the 24 following work restriction: Plaintiff “can return to his usual and customary duties. 25 He should avoid very heavy lifting and repetitive squatting.” (A.R. 403.) However, 26 it appears that Dr. Dean did not have Plaintiff’s medical records including an 27 operative report for Plaintiff’s left knee, at the time of this evaluation. 28 (“Impairment rating cannot be properly discussed without a review of the medical 7 (Id. 1 records.”); see also id. at 383.) 2 3 Dr. Dean’s second written report is dated June 3, 2011 and states that he had 4 received Plaintiff’s medical records for evaluation but had still not received the 5 operative report for Plaintiff’s left knee. (A.R. 389.) Stating that an impairment 6 rating for the left knee cannot be properly discussed without the operative report, 7 Dr. Dean issued the following work restriction: “For the lumbar spine, I would 8 recommend preclusion from very heavy lifting activities.” (A.R. 396.) 9 10 Dr. Dean’s third written report is dated January 16, 2012, and was prepared 11 after Dr. Dean had the opportunity to review both Plaintiff’s medical records and the 12 operative report which he references in the report. (A.R. 383-84.) With respect to 13 work restrictions, the report stated that Dr. Dean’s “opinions regarding the need for 14 work restrictions for the lumbar spine remain unchanged,” that the doctor “would 15 continue to recommendation [sic] a preclusion from very heavy lifting activities,” 16 and given Plaintiff’s postoperative status on his left knee, “a preclusion from 17 prolonged weightbearing, as well as repetitive kneeling or squatting activities would 18 be appropriate.” (A.R. 387 (emphasis added).) 19 20 In assessing the residual functional capacity, the ALJ gave great weight to Dr. 21 Dean’s opinion which indicated that Plaintiff “should avoid very heavy lifting and 22 repetitive squatting.” (A.R. 36 citing A.R. 380-404.) However, the ALJ did not 23 reference the additional limitation pertaining to a preclusion from prolonged 24 weightbearing, and repetitive kneeling, which Dr. Dean included for the first time in 25 his third report. 26 27 Plaintiff concedes that the ALJ did refer to Dr. Dean’s report(s), but argues 28 that he did not give specific and legitimate reasons for rejecting the medical source 8 1 statement that Plaintiff “is precluded from prolonged weight-bearing,” because the 2 ALJ did not reference this additional limitation at all. (Joint Stip. at 23.) According 3 to Plaintiff, the assessed preclusion from prolonged weight-bearing “effectively 4 eliminates the ability to perform light and medium work,” (bearing in mind that 5 Plaintiff’s past relevant work falls in the “medium” category) and the resulting 6 limitation to sedentary work would warrant a finding of disability. (Joint Stip. at 7 18.) 8 impacts Plaintiff’s ability to walk and stand for prolonged periods, which in turn 9 impacts his ability to perform medium and light work. Underlying this argument is the inference that prolonged weight-bearing (Joint Stip. at 17.) 10 Defendant rejects such an inference because “Dr. Dean did not specify that the 11 weightbearing restriction would preclude prolonged standing or walking.” (Joint 12 Stip. at 19.) 13 contrary to such an inference. (Id.) Defendant further suggests that Dr. Dean’s conclusion would be 14 15 Although Dr. Dean’s weightbearing restriction does not explicitly reference 16 standing and walking it is not clear whether the omission was deliberate, or whether 17 the omission has an impact in this case. Defendant argues against correlating the 18 weightbearing restriction with standing or walking; however, this Court has 19 previously rejected an ALJ’s conclusion that a plaintiff who was precluded against 20 prolonged weight-bearing could perform light work which required standing or 21 walking for six hours in an eight-hour day. Jenkins v. Astrue, 628 F. Supp. 2d 1140, 22 1149 (C.D. Cal. May 28, 2009). 23 weight-bearing with prolonged standing or walking. Id. (“A preclusion against 24 ‘prolonged weight-bearing’ (that is, prolonged standing or walking) is not . . . 25 consistent with the ability to perform the full range of light work, which requires 26 standing or walking for six hours in an eight-hour day.”) See also Esparza v. 27 Astrue, No. EDCV 10-0929-DTB, 2011 U.S. Dist. LEXIS 122818, **8-9 (C.D. Cal. 28 Oct. 24, 2011) (“Prolonged weight bearing activities can be equated to prolonged In its analysis, the Court equated prolonged 9 1 standing or walking.”); Nguyen v. Berryhill, No. 3:16-cv-00748-LB,2017 U.S. Dist. 2 LEXIS 50837, **4-5 (N.D. Cal. Mar. 31, 2017) (listing standing and walking as 3 examples of prolonged or continuous weight-bearing activities); Garza v. Colvin, 4 No. CV 12-00772 AJW, 2013 U.S. Dist. LEXIS 121265, *5 (C.D. Cal. Aug. 26, 5 2013) (describing prolonged “weight-bearing,” as a term that subsumes both 6 standing and walking). But see Al-Khalili v. Colvin, No. 3:12-cv-00347, 2015 U.S. 7 Dist. LEXIS 14835, *7 (M.D. Tenn. Feb. 4, 2015) (treating “weight-bearing” 8 requirements separately from “standing and walking requirements” pursuant to 20 9 C.F.R § 404.1567.) If the terminology at issue arises from workers’ compensation 10 law, “the ALJ’s decision need not contain an explicit ‘translation,’ [but] it should at 11 least indicate that the ALJ recognized the differences between the relevant state 12 workers’ compensation terminology, on the one hand, and the relevant Social 13 Security disability terminology, on the other hand, and took those differences into 14 account in evaluating the medical evidence.’” Booth v. Barnhart, 181 F. Supp. 2d 15 1099, 1105 (C.D. Cal. 2002). At best, the meaning of “prolonged weightbearing” in 16 this case presents an ambiguity. In such an instance, the ALJ is required to inquire 17 further or otherwise resolve that ambiguity. See Tonapetyan v. Halter, 242 F.3d 18 1144, 1150 (9th Cir. 2001) (“Ambiguous evidence . . . triggers the ALJ’s duty to 19 ‘conduct an appropriate inquiry.’”). 20 21 To the extent a limitation against prolonged weight bearing does implicate 22 prolonged standing and walking, such a limitation is facially inconsistent with the 23 ALJ’s finding in this case that Plaintiff can perform his past relevant work which 24 requires prolonged standing and walking. (See A.R. 64-65.) At the administrative 25 hearing, the ALJ asked the VE whether an individual of advanced age with 26 Plaintiff’s education and language background who was “limited to medium work as 27 defined in the regulations with frequent postural activities but [avoiding] work 28 situations requiring acute, precise detailed hearing. . . concentrated exposure to 10 1 excessive noise,” could perform Plaintiff’s past relevant work. (A.R. 64.) The VE 2 responded “I think just the door installer.” (Id.) The ALJ next confirmed that if the 3 hypothetical individual “was limited to light work, otherwise [having] the same 4 limits,” that would preclude the past work, including the work of door installer. 5 (Id.) 6 7 Courts have held that “medium work generally requires standing and walking 8 six hours in an eighth-our [sic] day.” Jenkins-Hampton v. Colvin, No. CV 13-6074- 9 JPR, 2014 U.S. Dist. LEXIS 139745, **16-17 (C.D. Cal. Sept. 30, 2014) (citing 10 SSR 83-10) (“full range of medium work requires standing or walking, off and on, 11 for a total of approximately 6 hours in an 8-hour workday”). “[L]ight work requires 12 ‘a good deal of walking or standing’ and generally more than the two hours required 13 by sedentary work.” Id. 14 15 Although the ALJ disclaimed portions of Dr. Dean’s opinion that Plaintiff 16 was “temporarily totally disabled” and/or “permanent and stationary” (A.R. 36) 17 there is no indication that the ALJ intended to reject the portion of Dr. Dean’s 18 evaluation concerning weight bearing restrictions. Even if the ALJ intended to 19 reject that portion of Dr. Dean’s evaluation, he has not provided the requisite 20 specific and legitimate reasons to support such a rejection. Lester, 81 F.3d at 830- 21 31. For example, if Defendant is correct that a preclusion from prolonged standing 22 and walking would be inconsistent with Plaintiff’s medical record, the ALJ is 23 obligated to explain why. See Tonapetyan, 242 F.3d at 1149 (ALJ is not required to 24 give great weight to conclusions in medical opinions that were inconsistent with the 25 other evidence of record however, the ALJ must give reasons for how he assigns 26 weight to such an opinion). 27 28 It is inappropriate for this Court to deduce the ALJ’s intention—to implicitly 11 1 reject the portion of Dr. Dean’s opinion that related Plaintiff’s capacity for 2 prolonged weightbearing—through scattered statements in the ALJ’s decision or in 3 the record, that could possibly contradict Dr. Dean’s opinion. See Bray v. Comm’r, 4 Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (finding that attempts to 5 “salvage” an ALJ’s decision fail because courts are required “to review the ALJ’s 6 decision based on the reasoning and factual findings offered by the ALJ—not post 7 hoc rationalizations that attempt to intuit what the adjudicator may have been 8 thinking.”) 9 10 Here, the ALJ’s decision contains the statement that another doctor (Dr. 11 Bernabe) opined that Plaintiff “could stand and walk for six hours out of an eight- 12 hour day. . .”3 (A.R. 36.) Subsequently, the ALJ’s decision states “The opinions of 13 all of these physicians [including Drs. Bernabe and Dean] are generally consistent in 14 that they all assess [Plaintiff] as being able to perform work at the minimum of the 15 medium exertional level.” (A.R. 36.) As noted, the ALJ’s decision also states that 16 he is rejecting Dr. Dean’s opinion that Plaintiff was “temporarily totally disabled” 17 and/or “permanent and stationary” because those phrases are specific and unique to 18 workers’ compensation law that is not probative in the social security context. (A.R. 19 36.) Lastly, the ALJ’s decision includes the statement that “although [Plaintiff] 20 reported that he had weakness of the left knee, medical records indicated that there 21 was no evidence of instability of the knee.” (A.R. 34.) 22 23 None of these statements in the ALJ’s decision, however, constitute proper 24 “rejections” of Dr. Dean’s opinion that Plaintiff is precluded from prolonged 25 3 26 27 28 Specifically, Dr. Bernabe opined in a report dated October 10, 2012, that an inspection of Plaintiff’s knees was “unrevealing,” that his range of motion “was full and painless” with a functional assessment that he could “lift and carry 50 pounds occasionally and 25 pound frequently” and “walk and stand six hours out of an eight-hour day.” (A.R. 378-79.) Additionally, the administrative record contains a functional assessment by Dr. Seung Ha Lim dated September 4, 2013who opined that Plaintiff “is restricted to standing and/or walking about 6 hours in an eight-hour workday with appropriate breaks…would be able to lift and/or carry 50 pounds occasionally and 25 pounds frequently.” (A.R. 437.) 12 1 weightbearing. Because the ALJ was ultimately required to do more, Defendant’s 2 argument is unpersuasive. 3 4 The Court will not reverse the Commissioner’s decision if it is based on 5 harmless error, which exists if the error is “‘inconsequential to the ultimate 6 nondisability determination,’ or if despite the legal error, ‘the agency’s path may 7 reasonably be discerned.’” 8 omitted). Although most of Plaintiff’s medical records concern problems with 9 hearing and prostate cancer (see generally, A.R. 357-550), the question of whether 10 Plaintiff is precluded from prolonged standing and walking is dispositive to the issue 11 of whether Plaintiff can perform his past relevant work. Therefore, the ALJ’s 12 failure to address this issue is not harmless. Brown-Hunter, 806 F.3d at 492 (internal citations 13 Remand Is Appropriate to Resolve Ambiguities. 14 15 16 In certain, narrow circumstances, the Ninth Circuit permits courts to credit 17 evidence as “true” and award benefits based on that evidence if it finds that the 18 agency did not properly evaluate that evidence in the first instance. Treichler v. 19 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1102 (9th Cir. 2014). 20 “Administrative proceedings are generally useful where the record has not been 21 fully developed, there is a need to resolve conflicts and ambiguities, or the 22 presentation of further evidence may well prove enlightening in light of the passage 23 of time.” Id. at 1101 (internal quotation marks, citations, brackets, and ellipsis 24 omitted)). Here, there is a need to resolve the ambiguity in Dr. Dean’s medical 25 source opinion, therefore remand is appropriate. 26 27 28 III. The ALJ’s Determination that Plaintiff Could Perform his Past Relevant Work. 13 1 Plaintiff raises three arguments challenging the ALJ’s determination. First, 2 the ALJ’s determination that Plaintiff could perform his past relevant work as “door 3 installer” is inconsistent with the ALJ’s prior determination that the job of “door 4 installer” while classified as “work” did not rise to the level of substantial gainful 5 activity. (Joint Stip. at 5.) Second, the ALJ improperly classified Plaintiff’s past 6 relevant work—which was “hybrid” in nature—according to the least demanding 7 function of that past work. (Id. at 5-6.) Third, there is either a conflict or ambiguity 8 between the VE’s testimony that Plaintiff could perform his past relevant work as 9 actually or generally performed given that the DOT classifies door installer as Noise 10 Level 4, i.e. Loud and the ALJ determined that Plaintiff must avoid concentrated 11 exposure to excessive noise levels. (Id. at 8.) 12 13 Because this matter must be remanded to the ALJ for reconsideration of Dr. 14 Dean’s opinion with respect to Plaintiff’s limitations on weight bearing (and 15 repetitive kneeling) the outcome of which could obviate any consideration of 16 Plaintiff’s past work, the Court declines to reach the merits of Plaintiff’s contentions 17 concerning his past relevant work and its role in the ALJ’s RFC determination. 18 19 However, on remand, the ALJ should ensure that his analysis at steps two 20 and four of the sequential analysis complies with the applicable legal standards. To 21 that effect, he must resolve any ambiguities or conflicts in the classification of 22 Plaintiff’s past work and the VE’s testimony. He must also provide specific and 23 legitimate reasons supported by substantial evidence for discounting any portion of 24 Dr. Dean’s opinion, see Garrison, 759 F.3d at 1012. Further, to the extent that the 25 record is ambiguous or inadequate to allow for a proper evaluation of the medical 26 opinions in evidence, the ALJ has a duty to conduct appropriate inquiry, such as 27 soliciting additional evidence or re-contacting a medical source for clarification. 28 See Tonapetyan, 242 F.3d at 1150. 14 1 CONCLUSION 2 3 4 5 For the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REMANDED for reconsideration. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 8 this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and 9 for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 14 15 DATED: August 4, 2017 __________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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