Jeremy Louis Heinemann v. Carolyn W. Colvin

Filing 21

DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered REVERSING the Commissioner's decision and REMANDING this case for further proceedings consistent with this Decision and Order; and The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case without prejudice to a timely application for attorneys' fees and costs. (wr)

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O 1 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 Case No. 5:17-CV-00007 (VEB) 7 JEREMY LOUIS HEINEMANN, 8 DECISION AND ORDER Plaintiff, 9 vs. 10 11 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 12 Defendant. 13 I. INTRODUCTION 14 In October of 2012, Plaintiff Jeremy Louis Heinemann applied for 15 16 17 18 Supplemental Security Income benefits under the Social Security Act. The Commissioner of Social Security denied the application.1 Plaintiff, represented by 1  On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The 19 Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.  20 1 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 Bill LaTour, Esq., commenced this action seeking judicial review of the 2 Commissioner’s denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 3 The parties consented to the jurisdiction of a United States Magistrate Judge. 4 (Docket No. 10, 12). On August 18, 2017, this case was referred to the undersigned 5 pursuant to General Order 05-07. (Docket No. 20). 6 7 II. BACKGROUND Plaintiff applied for benefits on October 5, 2012, alleging disability beginning 8 9 December 17, 2009. (T at 77).2 The application was denied initially and on 10 reconsideration. Plaintiff requested a hearing before an Administrative Law Judge 11 (“ALJ”). On January 15, 2015, a hearing was held before ALJ Jesse Pease. (T at 12 27). Plaintiff appeared with an attorney and testified. (T at 33-50). The ALJ also 13 received testimony from Debbie Heinemann, Plaintiff’s mother (T at 51-58), and 14 Mary Jesko, a vocational expert (T at 59-63). 15 On May 22, 2015, the ALJ issued a written decision denying the application 16 for benefits. (T at 9-26). The ALJ’s decision became the Commissioner’s final 17 decision on November 22, 2016, when the Appeals Council denied Plaintiff’s 18 request for review. (T at 1-6). 19 2 20  Citations to (“T”) refer to the transcript of the administrative record at Docket No. 16. 2 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 On January 4, 2017, Plaintiff, acting by and through his counsel, filed this 2 action seeking judicial review of the Commissioner’s decision. (Docket No. 1). The 3 Commissioner interposed an Answer on May 22, 2017. (Docket No. 15). The 4 parties filed a Joint Stipulation on August 14, 2017. (Docket No. 19). 5 After reviewing the pleadings, Joint Stipulation, and administrative record, 6 this Court finds that the Commissioner’s decision must be reversed and this case be 7 remanded for further proceedings. 8 9 10 III. DISCUSSION A. Sequential Evaluation Process 11 The Social Security Act (“the Act”) defines disability as the “inability to 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which has 14 lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 16 claimant shall be determined to be under a disability only if any impairments are of 17 such severity that he or she is not only unable to do previous work but cannot, 18 considering his or her age, education and work experiences, engage in any other 19 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 20 3 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 2 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 3 The Commissioner has established a five-step sequential evaluation process 4 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 5 one determines if the person is engaged in substantial gainful activities. If so, 6 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 7 decision maker proceeds to step two, which determines whether the claimant has a 8 medically severe impairment or combination of impairments. 20 C.F.R. §§ 9 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 10 If the claimant does not have a severe impairment or combination of 11 impairments, the disability claim is denied. If the impairment is severe, the 12 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 13 with a number of listed impairments acknowledged by the Commissioner to be so 14 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 15 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 16 equals one of the listed impairments, the claimant is conclusively presumed to be 17 disabled. If the impairment is not one conclusively presumed to be disabling, the 18 evaluation proceeds to the fourth step, which determines whether the impairment 19 prevents the claimant from performing work which was performed in the past. If the 20 4 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 claimant is able to perform previous work, he or she is deemed not disabled. 20 2 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 3 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 4 work, the fifth and final step in the process determines whether he or she is able to 5 perform other work in the national economy in view of his or her residual functional 6 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 7 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 8 The initial burden of proof rests upon the claimant to establish a prima facie 9 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 10 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 11 is met once the claimant establishes that a mental or physical impairment prevents 12 the performance of previous work. The burden then shifts, at step five, to the 13 Commissioner to show that (1) plaintiff can perform other substantial gainful 14 activity and (2) a “significant number of jobs exist in the national economy” that the 15 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 16 B. Standard of Review 17 Congress has provided a limited scope of judicial review of a Commissioner’s 18 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 19 made through an ALJ, when the determination is not based on legal error and is 20 5 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 2 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 3 “The [Commissioner’s] determination that a plaintiff is not disabled will be 4 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 5 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 6 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 7 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 8 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 9 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 10 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 11 conclusions as the [Commissioner] may reasonably draw from the evidence” will 12 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 13 the Court considers the record as a whole, not just the evidence supporting the 14 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 15 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 16 It is the role of the Commissioner, not this Court, to resolve conflicts in 17 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 18 interpretation, the Court may not substitute its judgment for that of the 19 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 20 6 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 2 set aside if the proper legal standards were not applied in weighing the evidence and 3 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 4 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 5 administrative findings, or if there is conflicting evidence that will support a finding 6 of either disability or non-disability, the finding of the Commissioner is conclusive. 7 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 8 C. Commissioner’s Decision 9 The ALJ determined that Plaintiff had not engaged in substantial gainful 10 activity since October 5, 2012, the date he applied for benefits. (T at 14). The ALJ 11 found that Plaintiff’s schizoaffective disorder, bipolar disorder, and history of 12 amphetamine abuse were “severe” impairments under the Act. (Tr. 14). 13 However, the ALJ concluded that Plaintiff did not have an impairment or 14 combination of impairments that met or medically equaled one of the impairments 15 set forth in the Listings. (T at 14). 16 The ALJ determined that Plaintiff retained the residual functional capacity 17 (“RFC”) to perform a full range of work at all exertional levels, with the following 18 non-exertional limitations: only simple and routine tasks in a non-public 19 20 7 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 environment; only non-intense interaction with co-workers and supervisors and no 2 work requiring hyper-vigilance or responsibility for the safety of others. (T at 16). 3 The ALJ found that Plaintiff could not perform his past relevant work. (T at 4 20). Considering Plaintiff’s age (32 on the application date), education (limited), 5 work experience, and residual functional capacity, the ALJ determined that there 6 were jobs that exist in significant numbers in the national economy that Plaintiff can 7 perform. (T at 20). 8 As such, the ALJ found that Plaintiff was not entitled to benefits under the 9 Social Security Act from October 5, 2012 (the application date) through May 22, 10 2015 (the date of the ALJ’s decision). (T at 21). As noted above, the ALJ’s decision 11 became the Commissioner’s final decision when the Appeals Council denied 12 Plaintiff’s request for review. (T at 1-6). 13 D. Disputed Issue 14 As set forth in the parties’ Joint Stipulation (Docket No. 19), Plaintiff offers a 15 single argument in support of his claim that the Commissioner’s decision should be 16 reversed. He contends that the ALJ did not properly assess the medical opinion 17 evidence. 18 19 20 8 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 2 IV. ANALYSIS A. Medical Opinion Evidence 3 In disability proceedings, a treating physician’s opinion carries more weight 4 than an examining physician’s opinion, and an examining physician’s opinion is 5 given more weight than that of a non-examining physician. Benecke v. Barnhart, 6 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 7 1995). If the treating or examining physician’s opinions are not contradicted, they 8 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 9 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 10 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 11 1035, 1043 (9th Cir. 1995). 12 Historically, the courts have recognized conflicting medical evidence, and/or 13 the absence of regular medical treatment during the alleged period of disability, 14 and/or the lack of medical support for doctors’ reports based substantially on a 15 claimant’s subjective complaints of pain, as specific, legitimate reasons for 16 disregarding a treating or examining physician’s opinion. Flaten v. Secretary of 17 Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 18 An ALJ satisfies the “substantial evidence” requirement by “setting out a 19 detailed and thorough summary of the facts and conflicting clinical evidence, stating 20 9 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 2 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 3 “The ALJ must do more than state conclusions. He must set forth his own 4 interpretations and explain why they, rather than the doctors,’ are correct.” Id. 5 In this case, Dr. Ernest Bagner, a psychiatrist, completed a consultative 6 psychiatric evaluation on October 3, 2010. Dr. Bagner diagnosed mood disorder, 7 not otherwise specified, and polysubstance abuse, in remission. (T at 224). He 8 opined that Plaintiff would have no limitations with regard to interacting with 9 supervisors, peers, and the public. (T at 225). He assessed no limitation with respect 10 to Plaintiff’s ability to complete simple tasks, but found mild limitation as to 11 maintaining concentration and completing complex tasks and mild to moderate 12 limitation with regard to handling normal stresses at work and completing a normal 13 workweek without interruption. (T at 225). Dr. Bagner also concluded that Plaintiff 14 would have mild to moderate limitations handling normal work stress and 15 completing a normal workweek without interruption. (T at 225). 16 Dr. Bagner completed a second consultative psychiatric evaluation on April 5, 17 2013. Dr. Bagner diagnosed schizoaffective disorder, bipolar type, and assigned a 18 19 20 10 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 Global Assessment of Functioning (“GAF”) score3 of 55 (T at 252), which is 2 indicative of moderate symptoms or difficulty in social, occupational or educational 3 functioning. Metcalfe v. Astrue, No. EDCV 07-1039, 2008 US. Dist. LEXIS 83095, 4 at *9 (Cal. CD Sep’t 29, 2008). 5 Dr. Bagner assessed mild limitation with regard to Plaintiff’s ability to follow 6 simple oral and written instructions. (T at 252). He opined that Plaintiff had 7 moderate limitation as to following detailed instructions; interacting appropriately 8 with the public, co-workers, and supervisors; and as to complying with job rules 9 such as safety and attendance. (T at 252). Dr. Bagner found Plaintiff markedly 10 limited with respect to responding to changes and pressure in a routine work setting. 11 (T at 252). Dr. Bagner reported that Plaintiff was markedly limited as to his daily 12 activities and opined that Plaintiff’s prognosis was “poor.” (T at 252). He did not 13 believe Plaintiff could manage his own funds. (T at 252). 14 The ALJ gave “little weight” to Dr. Bagner’s assessments. (T at 18-19). The 15 October 2010 opinion was rendered prior to the application for SSI benefits and is, 16 thus, outside the relevant time period. (T at 18-19). The ALJ found Dr. Bagner’s 17 18 3  “A GAF score is a rough estimate of an individual's psychological, social, and occupational 19 functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998).  20 11 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 April 2013 opinion “not consistent with the record as a whole” since the application 2 date and thus gave the opinion “little weight.” (T at 19). 3 4 This Court finds that the ALJ’s decision to discount Dr. Bagner’s April 2013 assessment must be revisited on remand. 5 The record revealed a variance in Plaintiff’s symptoms and functioning. In 6 October of 2012, Plaintiff was arrested for assaulting a teenager, whom he believed 7 was about to attack him. (T at 241). A clinical assessment performed in January of 8 2013 described Plaintiff as having “very poor” insight and judgment, as laughing 9 inappropriately throughout the interview (T at 244), and as reporting auditory 10 hallucinations. (T at 244). A follow-up assessment in February of 2013 described 11 Plaintiff’s insight and judgment as fair, but indicated a GAF score of 40. (T at 240). 12 “A GAF score of 31-40 indicates some impairment in reality testing or 13 communication (e.g., speech is at times illogical, obscure, or irrelevant) or major 14 impairment in several areas such as work or school, family relations, judgment, 15 thinking or mood.” Tagin v. Astrue, No. 11-cv-05120, 2011 U.S. Dist. LEXIS 16 136237 at *8 n.1 (W.D.Wa. Nov. 28, 2011)(citations omitted). 17 In March of 2013, Plaintiff reported that he was “doing very well with no 18 symptoms.” (T at 246). His behavior during his medical visit was described as 19 unremarkable. (T at 246). In April of 2013, Plaintiff seemed “somewhat befuddled 20 12 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 or confused,” with “somewhat peculiar” affect. (T at 259). The clinician noted that 2 Plaintiff appeared to be “minimizing any symptoms.” (T at 259). A treatment note 3 from January of 2014 stated that Plaintiff denied any current symptoms and was 4 “doing well.” (T at 272). He was noted to be “free of his psychotic symptoms of 5 paranoid thinking and auditory hallucinations….” (T at 272). In March of 2014, 6 Plaintiff was described as “doing well” with an unremarkable mental status 7 examination. (T at 271). 8 Plaintiff as experiencing “intermittent paranoia,” irritability, and mood swings, but 9 no auditory hallucinations. A treatment note from September of 2014 described (T at 268). Plaintiff’s condition was described as 10 “improving on meds.” (T at 268). In November of 2014, Plaintiff denied paranoia 11 and depressed mood, complaining only of “some irritability in the mornings.” (T at 12 267). 13 The ALJ recognized this significant variance in Plaintiff’s symptoms and 14 presentation. (T at 17-18). The ALJ found the evidence to establish some level of 15 limitation, which was incorporated into the RFC, but concluded that “a finding of 16 disability [was] not appropriate.” (T at 18). 17 This Court is mindful that the Commissioner is responsible for resolving 18 conflicts and addressing ambiguities in the evidence. Magallanes v. Bowen, 881 19 F.2d 747, 751 (9th Cir. 1989). This Court likewise recognizes that a plausible 20 13 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 reading of the evidence could posit that Plaintiff’s condition materially improved as 2 a result of treatment and medication, such that his mental impairments result in some 3 restrictions, albeit none that rendered him disabled within the meaning of the Social 4 Security. 5 However, this Court finds a remand necessary because the ALJ did not 6 adequately account for a particularly plausible reading of the record. While this 7 Court would be obliged to defer to the ALJ’s choice among alternative assessments 8 of the evidence, this Court cannot affirm unless it is apparent from the decision that 9 the ALJ accounted for all of the legally relevant possibilities and considerations. 10 That is not the case here. 11 Dr. Bagner opined that Plaintiff’s ability to respond to changes in a routine 12 work setting and respond to work pressure in a usual work setting was “markedly 13 limited.” (T at 252). He also assessed moderate limitation with regard to Plaintiff’s 14 ability to while work rules, including attendance. (T at 252). 15 improvement over a period of time while receiving treatment, while material to the 16 disability determination, must be considered with caution when considering whether 17 Plaintiff could satisfy the stress demands of competitive, remunerative employment. 18 In other words, while Plaintiff’s apparent improvement is notable, the fact that he 19 realized that improvement while living in a supportive setting with minimal to no 20 14 Plaintiff’s DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 demands and without a structured schedule,4 must be considered when determining 2 whether the apparent improvement would generalize into an ability to meet the 3 demands of even relatively “low stress” employment. 4 Indeed, the Ninth Circuit has cautioned against relying too heavily on the 5 “wax and wane” of symptoms in the course of mental health treatment. See Garrison 6 v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). 7 debilitating symptoms are a common occurrence, and in such circumstances it is 8 error for an ALJ to pick out a few isolated instances of improvement over a period of 9 months or years and to treat them as a basis for concluding a claimant is capable of 10 working.” Id.; see also Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) 11 (“That a person who suffers from severe panic attacks, anxiety, and depression 12 makes some improvement does not mean that the person's impairments no longer 13 seriously affect her ability to function in a workplace.”). “Cycles of improvement and 14 In particular, the ALJ must interpret evidence of improvement “with an 15 awareness that improved functioning while being treated and while limiting 16 environmental stressors does not always mean that a claimant can function 17 18 4 19 20  Plaintiff lives with his mother. (T at 50-51). She needs to remind him to eat and take his medication. (T at 53). His activities of daily living are minimal. (T at 54). 15 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 effectively in a workplace.” Id. This is precisely the consideration lacking from the 2 ALJ’s decision here. 3 Moreover, individuals with chronic mental health problems “commonly have 4 their lives structured to minimize stress and reduce their signs and symptoms.” 5 Courneya v. Colvin, No. CV-12-5044, 2013 U.S. Dist. LEXIS 161332, at *13-14 6 (E.D.W.A. Nov. 12, 2013)(quoting 20 C.F.R. Pt. 404, Subp't P, App. 1 § 12.00(D)). 7 Stress is “highly individualized” and a person with a mental health impairment “may 8 have difficulty meeting the requirements of even so-called ‘low-stress' jobs.” SSR 9 85-15. As such, the issue of stress must be carefully considered and “[a]ny 10 impairment-related limitations created by an individual’s response to demands of 11 work . . . must be reflected in the RFC assessment.” Id.; see also Perkins v. Astrue, 12 No. CV 12-0634, 2012 U.S. Dist. LEXIS 144871, at *5 (C.D.Ca. Oct. 5, 2012). Dr. Bagner was the only examining physician to assess Plaintiff’s ability to 13 14 respond to work stress.5 15 likewise found moderate limitation with regard to Plaintiff’s ability to comply with 16 5 He found marked limitation. (T at 252). Dr. Bagner  An initial review by a non-examining State Agency review consultant found Plaintiff capable of 19 adapting to simple routines and changes in a non-public, unskilled workplace. (T at 18). On reconsideration, another non-examining State Agency review consultant found no severe mental impairment. (T at 18). These opinions from non-examining sources cannot, without more, constitute substantial evidence or justify rejecting the assessment of an examining doctor. Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995)(citing Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)) 20 16 17 18 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 attendance rules. (T at 252). This latter finding is significant, as problems with 2 attendance could preclude any employment, even employment of the simple, non- 3 intense, and non-public type identified by the vocational expert and adopted by the 4 ALJ. (T at 20-21). 5 In sum, this Court cannot affirm the denial of benefits because it is not clear 6 from the decision that the ALJ considered legally required and materially relevant 7 factors. 8 complying with attendance rules and responding to work stress, the ALJ was obliged 9 to carefully consider, and explicitly explain, whether the evidence of improvement 10 with treatment was sufficient to demonstrate an ability to perform even the limited 11 range of work identified in the RFC determination. A remand is required. 12 B. Given the level of limitation assessed by Dr. Bagner with regard to Remand 13 In a case where the ALJ's determination is not supported by substantial 14 evidence or is tainted by legal error, the court may remand the matter for additional 15 proceedings or an immediate award of benefits. Remand for additional proceedings 16 is proper where (1) outstanding issues must be resolved, and (2) it is not clear from 17 the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379 18 F.3d 587, 593 (9th Cir. 2004). 19 Bagner’s opinion for the reasons outlined above, this Court finds it is not clear from 20 17 Here, while the ALJ erred in discounting Dr. DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB 1 the record that Plaintiff is disabled. Dr. Bagner is an examining, not treating, 2 physician. 3 considerations outlined above, the ALJ might not nevertheless conclude that 4 Plaintiff is not disabled under the Act. The salient point is that the ALJ does not 5 appear to have considered the factors discussed above. 6 proceedings is the appropriate remedy to address that issue. 7 8 9 10 11 12 13 14 15 16 17 This Court cannot say for certain that, after accounting for the A remand for further V. ORDERS IT IS THEREFORE ORDERED that: Judgment be entered REVERSING the Commissioner’s decision and REMANDING this case for further proceedings consistent with this Decision and Order; and The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case without prejudice to a timely application for attorneys’ fees and costs. DATED this 12th day of April, 2018, /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 18 19 20 18 DECISION AND ORDER – HEINEMANN v BERRYHILL 5:17-CV-00007-VEB

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