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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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12

APRIL J. MICHLES,

13

Plaintiff,
v.

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15
16

NANCY A. BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

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) No. EDCV 16-2385 AS
)
) MEMORANDUM OPINION AND
)
) ORDER OF REMAND
)
)
)
)
)
)
)

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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

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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).

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previously been involved in Plaintiff’s case and that he would make a

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new decision without being bound by any prior decision.

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Plaintiff testified with the assistance of counsel, and vocational

19

expert David Rinehart also testified.

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ALJ Ball issued a decision ruling that Plaintiff was not disabled

21

within

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Plaintiff did not request that the Appeals Council review ALJ Ball’s

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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).

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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).

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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

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occasionally bilaterally; perform all postural activities

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occasionally; must work within 100-yards distance from a

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bathroom; no work requiring a high-quota production-rate

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pace, such as rapid assembly line work; must avoid exposure

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to

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equipment, tools, or machinery; understand, remember, and

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carry out instructions to perform tasks that are simple,

19

routine,

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related decisions; have only occasional contact with the

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public involving only brief interactions for exchanges of

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simple

23

coworkers;

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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

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26
3

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“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

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medically determinable impairments could reasonably be expected to

5

cause

6

intensity, persistence, and limiting effects of her symptoms were not

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“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

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23

This Court reviews the Administration’s decision to determine if

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the decision is free of legal error and supported by substantial

25

evidence.

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“Substantial evidence” is more than a mere scintilla, but less than a

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preponderance.

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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.

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that ALJ Ball improperly considered Plaintiff’s subjective complaints

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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).

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18

V.

DISCUSSION

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20

After reviewing the record, the Court finds that Plaintiff’s

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second claim warrants remand for further consideration.

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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