April J. Michles v. Carolyn W. Colvin

Filing 17

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits, for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See document for complete details) (afe)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 APRIL J. MICHLES, 13 Plaintiff, v. 14 15 16 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. 17 ) No. EDCV 16-2385 AS ) ) MEMORANDUM OPINION AND ) ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY 20 ORDERED that this matter is remanded 21 for further administrative action consistent with this Opinion. 22 I. 23 PROCEEDINGS 24 25 On August 28, 2008, Plaintiff April J. Michles (“Plaintiff”) 26 applied for social security benefits alleging a disabling condition 27 1 28 Nancy A. Berryhill is substituted for former Commissioner Carolyn W. Colvin. See Fed. R. Civ. P. 25(d). 1 Acting 1 beginning August 16, 2004. 2 220, 252). 3 application, conducted a hearing, and issued an unfavorable decision 4 on December 3, 2010. 5 the 6 matter 7 conducted an additional hearing and issued an unfavorable decision on 8 November 2, 2012. 9 this Court review the second ALJ’s decision and, on September 2, 10 2015, this Court reversed the second ALJ’s decision in part and 11 remanded this matter for further proceedings. (Certified Administrative Record (“AR”) An Administrative Law Judge (“ALJ”) reviewed Plaintiff’s Appeals for (AR 105-17). Council, further which Plaintiff requested review before granted consideration. (AR 11-21). the (AR request and 123-24). remanded A second the ALJ Plaintiff ultimately requested that (See AR 942-59). 12 13 On May 27, 2016, ALJ Kenneth E. Ball (“ALJ Ball”) conducted a 14 third hearing on Plaintiff’s application for disability benefits. 15 (AR 877-907). 16 previously been involved in Plaintiff’s case and that he would make a 17 new decision without being bound by any prior decision. 18 Plaintiff testified with the assistance of counsel, and vocational 19 expert David Rinehart also testified. 20 ALJ Ball issued a decision ruling that Plaintiff was not disabled 21 within 22 Plaintiff did not request that the Appeals Council review ALJ Ball’s 23 decision, which became the final decision of the Commissioner in 24 September 25 period to request Appeals Council review). the During the hearing, ALJ Ball confirmed that he had not meaning 2016. of See the 20 Social C.F.R. (AR 877). Security § 404.968 (AR 879). On July 27, 2016, Act. (AR (prescribing 854-70). sixty-day 26 27 On November 18, 2016, Plaintiff filed a Complaint pursuant to 28 42 U.S.C. § 405(g) alleging that the Social Security Administration 2 1 erred in denying benefits. 2 Defendant filed an Answer to the Complaint, (Docket Entry No. 14), 3 and the Certified Administrative Record, (Docket Entry No. 15). 4 parties have consented to proceed before a United States Magistrate 5 Judge. 6 filed a Joint Stipulation setting forth their respective positions on 7 Plaintiff’s claims.2 (Docket Entry No. 1). (Docket Entry Nos. 9, 11). On April 13, 2017, The On July 12, 2017, the parties 8 9 II. SUMMARY OF ALJ’S DECISION 10 ALJ Ball applied the five-step process in evaluating Plaintiff’s 11 12 case. (AR 855-56). 13 had not engaged in substantial gainful activity between her alleged 14 onset date and date last insured. 15 found that Plaintiff’s severe impairments included degenerative disc 16 disease of the 17 lumbar spine; irritable bowel syndrome; anxiety; and depression. (AR 18 856). 19 not meet or equal a listing found in 20 C.F.R. Part 404, Subpart P, 20 Appendix 1. of the At step one, ALJ Ball determined that Plaintiff cervical spine; (AR 856). degenerative At step two, ALJ Ball disc disease At step three, ALJ Ball found that Plaintiff’s impairments did (AR 857-58). 21 22 23 24 25 26 27 28 2 Because the parties use incompatible word processing systems, the Joint Stipulation was filed as two separately paginated documents, one by Plaintiff, (“P. Joint Stip.,” Docket Entry No. 16), and one by Defendant, (“D. Joint Stip.,” Docket Entry No. 16-1). 3 1 Before proceeding to step four, ALJ Ball found that Plaintiff 2 had the residual functional capacity (“RFC”) to perform light work3 3 with the following limitations: 4 5 lift and carry 6 frequently; stand and walk for six hours out of an eight- 7 hour workday with regular breaks with the requirement to 8 change 9 hour; sit without limitation during an eight-hour workday 10 with regular breaks; push and pull within the weight limits 11 indicated 12 occasionally bilaterally; perform all postural activities 13 occasionally; must work within 100-yards distance from a 14 bathroom; no work requiring a high-quota production-rate 15 pace, such as rapid assembly line work; must avoid exposure 16 to 17 equipment, tools, or machinery; understand, remember, and 18 carry out instructions to perform tasks that are simple, 19 routine, 20 related decisions; have only occasional contact with the 21 public involving only brief interactions for exchanges of 22 simple 23 coworkers; 24 limitations. positions for pounds briefly lifting unprotected and 20 heights repetitive information; and no occasionally for and one to three carrying; and moving and and reach only pounds minutes mechanical require 10 each overhead parts simple have occasional interaction other exertional or of work- with nonexertional 25 26 3 27 28 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). 4 1 (AR 858). 2 3 In assessing Plaintiff’s RFC, ALJ Ball ruled that Plaintiff’s 4 medically determinable impairments could reasonably be expected to 5 cause 6 intensity, persistence, and limiting effects of her symptoms were not 7 “entirely consistent” with the medical evidence and other evidence of 8 record. 9 statements her alleged (AR 861). in symptoms, but her statements concerning the ALJ Ball also assigned “partial weight” to the third-party Adult (Id.). Function Reports completed 10 Plaintiff’s husband. 11 to medical opinions and assessments by various physicians. 12 by ALJ Ball discussed and assigned weight 68). (AR 860- 13 14 At step to four, her Ball relevant determined return 16 however, 17 significant numbers 18 Accordingly, ALJ 19 within the meaning of the Social Security Act. Plaintiff Ball in work. that 15 that past ALJ (AR 868). ALJ to other work could adjust the national determined that Plaintiff economy. Plaintiff could Ball was ruled, existing (AR not not in 869-70). disabled (AR 870). 20 III. STANDARD OF REVIEW 21 22 23 This Court reviews the Administration’s decision to determine if 24 the decision is free of legal error and supported by substantial 25 evidence. 26 “Substantial evidence” is more than a mere scintilla, but less than a 27 preponderance. 28 2014). See Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. To determine whether substantial evidence supports a finding, 5 1 “a court must consider the record as a whole, weighing both evidence 2 that supports and evidence that detracts from the [Commissioner’s] 3 conclusion.” 4 2001) (internal quotation omitted). 5 can support either affirming or reversing the ALJ’s conclusion, [a 6 court] 7 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). may Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. not substitute [its] As a result, “[i]f the evidence judgment for that of the ALJ.” 8 9 IV. PLAINTIFF’S CONTENTIONS 10 11 Plaintiff raises two grounds for relief. First, Plaintiff 12 argues 13 particularly 14 physicians. 15 that ALJ Ball improperly considered Plaintiff’s subjective complaints 16 and the statements made by Plaintiff’s husband. that ALJ in Ball erred assigning evaluating weight to (P. Joint Stip. at 5-11). the the medical opinions evidence, of treating Second, Plaintiff maintains (Id. at 5, 11-18). 17 18 V. DISCUSSION 19 20 After reviewing the record, the Court finds that Plaintiff’s 21 second claim warrants remand for further consideration. 22 declines to address Plaintiff’s other claim. The Court 23 24 A. 25 ALJ Ball Improperly Analyzed Plaintiff’s Subjective Complaints And The Statements Made By Plaintiff’s Husband 26 27 28 With respect to Plaintiff’s statements, a claimant initially must produce objective medical evidence 6 establishing a medical 1 impairment reasonably 2 symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); 3 Bunnell Sullivan, 4 claimant 5 impairment that could reasonably be expected to produce pain or other 6 symptoms alleged, and the ALJ does not find that the claimant is 7 malingering, the ALJ may reject the claimant’s testimony regarding 8 the severity of her pain and symptoms only by articulating specific, 9 clear and convincing reasons for doing so. v. produces likely 947 to F.2d objective be 341, medical the 345 cause (9th evidence of Cir. of her subjective 1991). an Once a underlying Brown-Hunter v. Colvin, 10 806 F.3d 487, 492-93 (9th Cir. 2015) (citing Lingenfelter v. Astrue, 11 504 F.3d 1028, 1036 (9th Cir. 2007)). 12 The ALJ cannot reject the claimant’s testimony due solely to a 13 14 lack of objective medical evidence supporting it. 15 Admin., 119 F.3d 789, 792-93 (9th Cir. 1997) (“[A] finding that the 16 claimant lacks credibility cannot be premised wholly on a lack of 17 medical support for the severity of his pain.”). Instead, “[t]o find 18 the either 19 unrelated 20 dishonesty), on conflicts between his testimony and his own conduct, 21 or on internal contradictions in that testimony.” claimant to not the credible the subjective ALJ must testimony rely Light v. Soc. Sec. (e.g., on reasons reputation for Id. at 792. 22 23 Plaintiff testified at three separate hearings, each before a 24 different ALJ, and she also provided written questionnaire responses. 25 All of her statements concern the same relevant period, between her 26 27 28 7 1 alleged onset date of August 16, 2004, and her last insured date of 2 March 31, 2010.4 3 4 During Plaintiff’s first ALJ hearing in October 2010, Plaintiff 5 testified that she has 6 patches,”5 “strong medications,” and hot baths to treat her pain and 7 impairments. 8 to pain and nightmares. 9 according to Plaintiff, she “tr[ies] to fix . . . something to eat,” 10 tries to rinse dishes, and “start[s] a load of laundry,” often taking 11 breaks to sit. 12 but cannot put on most shoes without assistance because she cannot 13 bend over. (AR 84-86). tried acupuncture, injections, “Lexapro She stated she has difficulty sleeping due (AR 86). (AR 86-87). Sometimes, during a normal day, She dresses herself “most of the time” (AR 90). 14 15 During the second her typical in September activities, 2012, noting Plaintiff testified 17 washes her own hair once a week with some difficulty and that she 18 showers without assistance but requires help to get out of a bath. 19 (AR 38, 45). 20 some dishes, though her husband loads the dishwasher. 21 She stated that she prepares cereal. 22 drives to the grocery store once a week, spending about fifteen to 23 twenty minutes there, and she sometimes drives herself to medical 25 about hearing 16 24 further ALJ that she She stated that she “sometimes” sweeps, and she does (AR 45). (AR 45, 46). In addition, she 4 The Court generally uses the present tense to describe Plaintiff’s statements except when comparing Plaintiff’s statements at different times. 26 5 27 28 Lexapro is depressive disorder. (M.D. Fla. 2016). an antidepressant used to treat anxiety and Deskins v. Comm’r, 2016 WL 4409340 at *7 n.8 8 1 appointments. 2 once a month (AR 38). 3 church two or three times a month and attends a women’s bible study 4 group about once a month. 5 hearing, moreover, she began volunteering twice monthly for a church 6 program in which she monitors children for about an hour while they 7 make crafts. 8 people, Plaintiff attends church and bible study because these events 9 are “safe haven[s], because [she] know[s] that they’re not out there (AR 38, 46). She also drives herself to a hairdresser She testified, moreover, that she goes to (AR 46-48). (AR 44-45). About four months before the Although she experiences stress around 10 to hurt [her].” (AR 59-60). 11 week lying down, but most of the time she alternates sitting and 12 standing. 13 twenty minutes before changing positions. (AR 62-63). Plaintiff spends a few “bad days” every She can stand or sit for about fifteen to (AR 49-50). 14 15 At the hearing before ALJ Ball on May 27, 2016, Plaintiff 16 testified that her pain and fatigue levels were the same as they were 17 during earlier hearings. 18 from pain in her “[n]eck, back, middle back, lower back, right knee, 19 right wrist,” and right shoulder. 20 she sits down and “recline[s]” with pillows behind her, although she 21 “get[s] up more” and lies down less than she used to because lying 22 down is “more painful.” 23 twice a week and takes a two-hour bath almost every day. 24 She also noted that she is “on the list” for breast reduction surgery 25 to ease her back pain. 26 tries not to use it because she wants to be “independent.” 27 Plaintiff testified, moreover, that she has “issues” with irritable 28 bowel syndrome, and she has migraine headaches once a week. (AR 891, 897). (AR 890-91). (AR 892-93). (AR 891). She stated that she suffers To ease her pain, She goes to a chiropractor (AR 893). She stated that she has a cane but 9 (AR 899). (AR 896- 1 97). 2 sentences. 3 household chores, Plaintiff testified that about once a week, she 4 sets a chair next to her washing machine and puts a load in, although 5 she “might not go back and finish it.” 6 her husband carries the laundry “upstairs” and also helps her do her 7 hair. She also noted that she sometimes has difficulty finishing (AR 896). Elaborating about how she “tr[ies]” to perform (AR 894). She stated that (AR 894-95). 8 Plaintiff completed a Pain Questionnaire in September 2008. 9 (AR 10 267-69). 11 tries to stand up, take a hot bath, “eat something,” lie down on the 12 couch for three hours, do dishes, lie down again, put in a load of 13 laundry, lie down again, dress herself, make the bed, finish the 14 dishes, and lie down again. 15 go to the grocery store once a week. 16 are “issue[s],” she noted, and she is unable to perform many chores. 17 (AR 268). 18 asked questions. 19 an 20 allegations in the Pain Questionnaire. 21 Plaintiff 22 Questionnaire and Adult Function Report. Adult She reported, inter alia, that during a normal day she (AR 268). She wrote that she tries to (AR 268). Driving and shopping She also noted that she cannot maintain her composure when (Id.) Function gave During the same month, Plaintiff completed Report that substantively is generally consistent (AR 270-77). identical answers on with her In March 2009, another Pain (AR 297-308). 23 24 In the following excerpt of the decision, ALJ Ball discredited 25 Plaintiff’s statements finding them to be inconsistent with her daily 26 activities and the medical evidence: 27 28 10 1 I considered all of [Plaintiff’s] subjective complaints, 2 including 3 disability 4 administrative hearings, [Plaintiff] testified she was so 5 limited that she required assistance with the performance 6 of 7 described needing to lie down for several hours each day 8 due to pain. even statements reports, light from and tasks, the administrative function like washing hearings, reports. At dishes. She the also 9 10 The undersigned 11 daily living are inconsistent with [Plaintiff’s] statements 12 concerning the alleged intensity, persistence, and limiting 13 effects of symptoms. 14 in stores, handle funds, and prepare meals throughout the 15 period at issue. 16 attend weekly church and bible study sessions despite her 17 allegations of debilitating anxiety. 18 and mental abilities and social interactions required in 19 order to perform these activities are the same as those 20 necessary 21 [Plaintiff’s] ability to participate in such activities is 22 inconsistent with [Plaintiff’s] statements concerning the 23 alleged 24 symptoms. for finds that [Plaintiff’s] activities of [Plaintiff] was able to drive, shop In addition, [Plaintiff] was able to obtaining intensity, and persistence, Some of the physical maintaining and employment. limiting effects of 25 26 The objective 27 [Plaintiff’s] medical alleged evidence symptoms 28 11 and does not limiting support effects of 1 debilitating pain, headaches, and irritable bowel syndrome. 2 [. . .] 3 4 Concerning [Plaintiff’s] 5 [Plaintiff’s] 6 depression, the evidence demonstrates no more than moderate 7 limitation in any domain of functioning related to mental 8 health symptoms. 9 of social mental allegations of limitations, debilitating despite anxiety and As stated above, despite her allegations difficulties and concentration deficits, she 10 remained somewhat social throughout the period at issue. 11 She 12 classes. 13 some tasks in excess of one to two steps, like driving, 14 shopping in stores and preparing meals. 15 2008 16 Gessesse, [Plaintiff] was able to register 3 out of 3 items 17 immediately, 18 [Plaintiff] 19 backward, and was able to do serial 7’s. 20 objective medical evidence does not support the level of 21 symptomology that [Plaintiff] alleged and is inconsistent 22 with 23 intensity, persistence, and limiting effects of symptoms. 24 [. . .] continued to attend weekly church and bible study Further, she remained able to perform at least psychological and was 3 consultative out able [Plaintiff’s] of to 3 evaluation items state statements During a November 4 after digits with 5 Dr. minutes. forward and I find that the concerning the alleged 25 26 After careful consideration of the evidence, I find that 27 [Plaintiff’s] medically 28 reasonably expected be determinable to cause 12 the impairments alleged could symptoms; 1 however, [Plaintiff’s] statements concerning the intensity, 2 persistence and limiting effects of these symptoms are not 3 entirely 4 evidence in the record for the reasons explained in this 5 decision. consistent with the medical evidence and other 6 7 (AR 860-61) (some citations omitted). 8 Because ALJ Ball did not find that Plaintiff was malingering, 9 10 the Court applies the “clear and convincing reasons” standard. 11 Burrell v. Colvin, 775 F.3d 1133, 1138-39 (9th Cir. 2014); Robbins, 12 466 F.3d at 883. 13 the testimony inconsistent with objective medical evidence. 14 here, 15 Plaintiff’s statements based on their inconsistency with her daily 16 activities.6 the Court See And as noted, it is not enough for the ALJ to find considers whether the ALJ properly Thus, discredited 17 18 Remand is warranted on this basis. In particular, ALJ Ball 19 mischaracterizes the nature of Plaintiff’s daily activities, such as 20 cleaning and shopping, to conclude that they are inconsistent with 21 her alleged symptoms. 22 for the most part, that she carries out these activities slowly and 23 infrequently, with assistance, frequent breaks, or substantial pain. 24 As such, the duration and intensity of Plaintiff’s activities provide Plaintiff’s testimony and filings indicate, 25 6 26 27 28 To the extent that Defendant argues that this Court should affirm ALJ Ball’s adverse credibility finding based on evidence that ALJ Ball did not discuss in support of that finding, this Court declines to do so. See Burrell, 775 F.3d at 1138-39; Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 13 1 very little evidence that she can secure and maintain employment or 2 that her pain and limitations are not as severe as she suggests. 3 Ninth Circuit has disparaged such reasoning, stating as follows: The 4 5 [T]he mere fact that a plaintiff has carried on certain 6 daily activities, such as grocery shopping, driving a car, 7 or 8 detract from her credibility as to her overall disability. 9 One does not need to be “utterly incapacitated” in order to limited walking for exercise, does not in any way be disabled. 10 11 12 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (finding 13 “only a scintilla” of evidence supporting ALJ’s adverse credibility 14 finding 15 assistance, walk approximately an hour in the mall, get together with 16 friends, play cards, swim, watch television, read, undergo physical 17 therapy, and exercise at home); see also Reddick v. Chater, 157 F.3d 18 715, 722 (9th Cir. 1998) (remarking that activities of daily living 19 affect a claimant’s credibility “[o]nly if the level of activity [is] 20 inconsistent with the [c]laimant’s claimed limitations” and finding 21 that the ALJ 22 materials or 23 paraphrasing 24 regarding the content or tone of the record”). where claimant erred all was by “not parts of record material able to fully the go grocery accounting testimony that was for and “not shopping the with context reports,” entirely and of in accurate 25 26 Remand is also warranted for reconsideration of the statements 27 made by Plaintiff’s husband in two third-party Adult Function Reports 28 in September 2008 and March 2009, 14 which generally corroborated 1 Plaintiff’s 2 September 2008 report reflected that Plaintiff needs some assistance 3 to get dressed, bathe, and do chores; has difficulty sleeping; cannot 4 bend over; drives “short distance[s]”; prepares “easy foods”; and 5 attends meetings at church. assertions. (AR 259-66, 289-96). For example, the (AR 259-66). 6 7 An ALJ must give germane, specific reasons for rejecting a lay 8 witness’s statements. 9 (9th Cir. 2008); Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006) 10 (explaining that “the ALJ, not the district court, is required to 11 provide specific reasons for rejecting lay testimony”); Smolen, 80 12 F.3d at 1288. 13 giving “partial weight” to the husband’s statements: See Carmickle v. Comm’r, 533 F.3d 1155, 1164 Here, ALJ Ball expressed the following reasoning for 14 15 His statements are generally consistent with the subjective 16 complaints 17 [Plaintiff]. 18 reasons for finding [Plaintiff’s] subjective complaints to 19 be less than fully consistent with the evidence of record 20 as a whole. 21 consistent with the evidence of record as a whole for the 22 same 23 [Plaintiff] 24 substantial gainful activity, they are not supported by the 25 objective clinical and diagnostic medical evidence that is 26 discussed 27 symptoms, although persistent, were adequately controlled 28 at generally a moderate level with appropriate treatment already testified to and reported by Yet, as explained elsewhere, there are good Accordingly, his statements are only partially reasons. is To the unable elsewhere to extent perform that his statements work at demonstrates 15 the suggest level of [Plaintiff’s] 1 and 2 impartial medical expert Dr. Nafoosi. are not consistent with the credible opinion of 3 4 (AR 861) (some citations omitted). 5 Although an ALJ may properly reject a lay witness’s statements 6 7 for their inconsistency with the medical evidence, Bayliss v. 8 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); Lewis v. Apfel, 236 9 F.3d 503, 511 (9th Cir. 2001), ALJ Ball failed to articulate how 10 Plaintiff’s husband’s statements are inconsistent with the medical 11 evidence of record. 12 Accordingly, the Court finds that ALJ Ball improperly analyzed 13 14 the statements of Plaintiff and her husband. 15 16 B. The Court Cannot Conclude That The ALJ’s Errors Were Harmless 17 “[H]armless error principles apply in the Social Security . . . 18 19 context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 20 (citing Stout, 454 F.3d at 1054). 21 harmless where it is ‘inconsequential to the ultimate nondisability 22 determination.’” Generally, “an ALJ’s error is Id. (citing Carmickle, 533 F.3d at 1162). 23 The errors at issue here largely concern the ALJ’s consideration 24 25 of the statements made by Plaintiff 26 limiting effects of Plaintiff’s pain. 27 directly relevant to assessing Plaintiff’s RFC, which in turn was 28 central to the determination that there was work that she could 16 and her husband about the These limiting effects are 1 perform despite her limitations. 2 App’x 687, 689 (9th Cir. 2011) (noting that a claimant’s RFC “may be 3 the most critical finding contributing to the final . . . decision 4 about disability”) (quoting SSR 96—5p). 5 determine that ALJ Ball’s errors are “inconsequential to the ultimate 6 disability determination,” the errors cannot be deemed harmless. 7 Carmickle, 533 F.3d at 1162. See also McCawley v. Astrue, 423 F. Because the Court cannot See 8 9 C. Remand Is Warranted 10 The decision whether to remand for further proceedings or order 11 12 an immediate 13 discretion. 14 The Ninth Circuit has stated that a remand for benefits is warranted 15 “only in ‘rare circumstances.’” 16 Admin., 17 Barnhart, 367 F.3d 882, 886 (9th Cir. 2004)). 18 present only where the following elements are satisfied: (1) “the ALJ 19 has 20 evidence, whether claimant testimony or medical opinion”; (2) “the 21 record has been fully developed, [and] there are [no] outstanding 22 issues that must be resolved before a determination of disability can 23 be made”; and (3) the record as a whole, with the relevant testimony 24 or evidence credited as a matter of law, “leaves not the slightest 25 uncertainty as to the outcome of [the] proceeding.” 26 (9th Cir. 2014) (internal quotations and citations omitted). 775 failed award of benefits is within the district court’s Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). F.3d to 1090, provide 1100 Treichler v. Comm'r of Soc. Sec. (9th legally Cir. 2014) sufficient (quoting Moisa v. Such circumstances are reasons for rejecting Id. at 1100–01 27 28 Here, having determined that the ALJ failed to provide legally 17 1 sufficient reasons for rejecting the statements of Plaintiff and her 2 husband, the Court proceeds to the second element and the question of 3 “whether further administrative proceedings would be useful.” 4 id. at 1103-04. 5 the record as a whole is free from conflicts, ambiguities, or gaps, 6 whether 7 [Plaintiff’s] entitlement to benefits is clear under the applicable 8 legal rules.” 9 Cir. 2004)). all See To determine this, the Court “consider[s] whether factual issues have been resolved, and whether Id. (citing Moisa v. Barnhart, 367 F.3d 882, 887 (9th 10 11 In this case, conflicts persist, as the record presents apparent 12 inconsistencies between 13 medical 14 testimony, medical sources observed that Plaintiff on examination was 15 “alert” and “in no acute distress,” (AR 577, 794); that she had full 16 muscle strength in her upper and lower extremities (AR 579-80); that 17 she could squat without difficulty, (AR 581); and that she walked 18 stably 19 lumbar [range of motion] testing.” 20 aside from these apparent conflicts, it remains uncertain whether 21 Plaintiff would be entitled to an award of benefits if her statements 22 were credited in full. 23 testimony 24 ability to maintain gainful employment. evidence. and “with on the Plaintiff’s For greater statements example, flexion in than and contrast she the to exhibited objective Plaintiff’s on specific (AR 758; see also AR 795). Even In particular, the record lacks sufficient VE effects of Plaintiff’s alleged symptoms on her 25 26 Thus, the Court remands for further proceedings so that the ALJ 27 can reconsider the statements of Plaintiff and her husband, as well 28 18 1 as address and resolve any other issues, as necessary.7 2 3 VI. CONCLUSION 4 5 For the foregoing reasons, the decision of the Administrative 6 Law Judge is VACATED, and the matter is REMANDED, without benefits, 7 for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). 8 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 11 Dated: September 19, 2017. 12 13 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 The Court has not reached any issues other than those addressed herein, except as needed to conclude that further administrative proceedings are warranted. 19

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