Panchali Tusti Huynh v. Carolyn W. Colvin

Filing 21

MEMORANDUM AND OPINION by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for further proc eedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. SEE ORDER FOR DETAILS. (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 PANCHALI TUSTI HUYNH, 13 Plaintiff, 14 15 v. 16 NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. SA CV 16-1642-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on September 6, 2016, seeking review of the Commissioner’s1 22 denial of her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security 23 Income (“SSI”) payments. 24 Magistrate Judge on September 29, 2016, and October 14, 2016. Pursuant to the Court’s Order, 25 the parties filed a Joint Submission (alternatively “JS”) on June 23, 2017, that addresses their The parties filed Consents to proceed before the undersigned 26 27 28 1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Berryhill, the current Acting Commissioner of Social Security, is hereby substituted as the defendant herein. 1 positions concerning the disputed issue in the case. The Court has taken the Joint Submission 2 under submission without oral argument. 3 4 II. 5 BACKGROUND 6 Plaintiff was born on February 23, 1965. [Administrative Record (“AR”) at 162, 169.] She 7 has past relevant work experience as a bench assembler and a store laborer. [AR at 23, 44, 46- 8 47.] 9 On August 27, 2013, plaintiff protectively filed an application for a period of disability and 10 DIB, and an application for SSI payments, alleging that she has been unable to work since June 11 7, 2013. [AR at 15, 162-68, 169-75.] After her applications were denied initially and upon 12 reconsideration, plaintiff timely filed a request for a hearing before an Administrative Law Judge 13 (“ALJ”). [AR at 15, 95.] A hearing was held on December 23, 2014, at which time plaintiff 14 appeared represented by an attorney, and testified on her own behalf. [AR at 30-50.] A 15 vocational expert (“VE”) also testified. [AR at 44-49.] On February 18, 2015, the ALJ issued a 16 decision concluding that plaintiff was not under a disability from June 7, 2013, the alleged onset 17 date, through February 18, 2015, the date of the decision. [AR at 15-24.] Plaintiff requested 18 review of the ALJ’s decision by the Appeals Council. [AR at 10-11.] When the Appeals Council 19 denied plaintiff’s request for review on July 6, 2016 [AR at 1-5], the ALJ’s decision became the 20 final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per 21 curiam) (citations omitted). This action followed. 22 23 III. 24 STANDARD OF REVIEW 25 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 26 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 27 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 28 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 2 1 “Substantial evidence means more than a mere scintilla but less than a preponderance; it 2 is such relevant evidence as a reasonable mind might accept as adequate to support a 3 conclusion.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (citation 4 and internal quotation marks omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) 5 (same). When determining whether substantial evidence exists to support the Commissioner’s 6 decision, the Court examines the administrative record as a whole, considering adverse as well 7 as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citation omitted); 8 see Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (“[A] reviewing court must 9 consider the entire record as a whole and may not affirm simply by isolating a specific quantum 10 of supporting evidence.”) (citation and internal quotation marks omitted). “Where evidence is 11 susceptible to more than one rational interpretation, the ALJ’s decision should be upheld.” Ryan, 12 528 F.3d at 1198 (citation and internal quotation marks omitted); see Robbins v. Soc. Sec. Admin., 13 466 F.3d 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing the 14 ALJ’s conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.”) 15 (citation omitted). 16 17 IV. 18 THE EVALUATION OF DISABILITY 19 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 20 to engage in any substantial gainful activity owing to a physical or mental impairment that is 21 expected to result in death or which has lasted or is expected to last for a continuous period of at 22 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 23 1992). 24 25 A. THE FIVE-STEP EVALUATION PROCESS 26 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 27 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 28 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must 3 1 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 2 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 3 substantial gainful activity, the second step requires the Commissioner to determine whether the 4 claimant has a “severe” impairment or combination of impairments significantly limiting her ability 5 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 6 If the claimant has a “severe” impairment or combination of impairments, the third step requires 7 the Commissioner to determine whether the impairment or combination of impairments meets or 8 equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 404, 9 subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If 10 the claimant’s impairment or combination of impairments does not meet or equal an impairment 11 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 12 sufficient “residual functional capacity” to perform her past work; if so, the claimant is not disabled 13 and the claim is denied. Id. The claimant has the burden of proving that she is unable to 14 perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a 15 prima facie case of disability is established. Id. The Commissioner then bears the burden of 16 establishing that the claimant is not disabled, because she can perform other substantial gainful 17 work available in the national economy. Id. The determination of this issue comprises the fifth 18 and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 19 828 n.5; Drouin, 966 F.2d at 1257. 20 21 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 22 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 23 June 7, 2013, the alleged onset date.2 [AR at 17.] At step two, the ALJ concluded that plaintiff 24 has the severe impairments of hypertension; history of ventral hernia repair, status post repair; 25 history of intra-abdominal adhesions, status post adhesional lysis; and history of diverticulitis and 26 27 2 28 The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through September 30, 2013. [AR at 17.] 4 1 diverting colostomy. [AR at 17-18.] At step three, the ALJ determined that plaintiff does not have 2 an impairment or a combination of impairments that meets or medically equals any of the 3 impairments in the Listing. [AR at 19.] The ALJ further found that plaintiff retained the residual 4 functional capacity (“RFC”)3 to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 5 416.967(b),4 as follows: 6 [Plaintiff] is able to lift and carry 20 pounds occasionally, 10 pounds frequently; sit for 6 hours out of an 8 hour workday; and stand or walk for 6 hours out of an 8 hour day, all with normal breaks. [Plaintiff] can frequently climb stairs, ramps, ladders, ropes, and scaffolds. She can frequently balance, stoop, kneel, crouch and crawl. 7 8 9 [AR at 20.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded 10 that plaintiff is able to perform her past relevant work as a bench assembler. [AR at 23, 47.] 11 Accordingly, the ALJ determined that plaintiff was not disabled at any time from the alleged onset 12 date of June 7, 2013, through February 18, 2015, the date of the decision. [AR at 23-24.] 13 14 V. 15 THE ALJ’S DECISION 16 Plaintiff contends that the ALJ erred when she rejected the opinion of treating physician and 17 cardiologist, James Tran, M.D. [JS at 4.] As set forth below, the Court agrees with plaintiff and 18 remands for further proceedings. 19 20 3 21 22 23 24 25 26 27 28 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 4 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 5 1 A. MEDICAL OPINIONS 2 1. Legal Standard 3 “There are three types of medical opinions in social security cases: those from treating 4 physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc. Sec. 5 Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also 20 C.F.R. §§ 404.1502, 404.1527. “As a 6 general rule, more weight should be given to the opinion of a treating source than to the opinion 7 of doctors who do not treat the claimant.” Lester, 81 F.3d at 830; Garrison v. Colvin, 759 F.3d 8 995, 1012 (9th Cir. 2014) (citing Ryan, 528 F.3d at 1198); Turner v. Comm’r of Soc. Sec., 613 9 F.3d 1217, 1222 (9th Cir. 2010). “The opinion of an examining physician is, in turn, entitled to 10 greater weight than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830; Ryan, 528 11 F.3d at 1198. 12 “[T]he ALJ may only reject a treating or examining physician’s uncontradicted medical 13 opinion based on clear and convincing reasons.” Carmickle, 533 F.3d at 1164 (citation and 14 internal quotation marks omitted); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 15 “Where such an opinion is contradicted, however, it may be rejected for specific and legitimate 16 reasons that are supported by substantial evidence in the record.” Carmickle, 533 F.3d at 1164 17 (citation and internal quotation marks omitted); Ryan, 528 F.3d at 1198; Ghanim v. Colvin, 763 18 F.3d 1154, 1160-61 (9th Cir. 2014); Garrison, 759 F.3d at 1012. The ALJ can meet the requisite 19 specific and legitimate standard “by setting out a detailed and thorough summary of the facts and 20 conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick, 157 21 F.3d at 725. The ALJ “must set forth his own interpretations and explain why they, rather than the 22 [treating or examining] doctors’, are correct.” Id. 23 Although the opinion of a non-examining physician “cannot by itself constitute substantial 24 evidence that justifies the rejection of the opinion of either an examining physician or a treating 25 physician,” Lester, 81 F.3d at 831, state agency physicians are “highly qualified physicians, 26 psychologists, and other medical specialists who are also experts in Social Security disability 27 evaluation.” 20 C.F.R. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i); Soc. Sec. Ruling 96-6p; Bray v. 28 Astrue, 554 F.3d 1219, 1221, 1227 (9th Cir. 2009) (the ALJ properly relied “in large part on the 6 1 DDS physician’s assessment” in determining the claimant’s RFC and in rejecting the treating 2 doctor’s testimony regarding the claimant’s functional limitations). Reports of non-examining 3 medical experts “may serve as substantial evidence when they are supported by other evidence 4 in the record and are consistent with it.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 5 6 2. Dr. Tran 7 Dr. Tran, plaintiff’s treating cardiologist, prepared a “Cardiac Residual Functional Capacity 8 Questionnaire” (“Questionnaire”) on December 11, 2014. [AR at 339-43.] In the Questionnaire, 9 Dr. Tran indicated he had been treating plaintiff since August 2014. [AR at 339.] He diagnosed 10 plaintiff with a New York Heart Association (“NYHA”) functional classification of II-III. [Id.] 11 According to plaintiff, NYHA classifications are “functional classifications for the severity of heart 12 failure”: Class II denotes a slight limitation of physical activity from symptoms such as fatigue, 13 palpitation, or shortness of breath, while Class III denotes a marked limitation. (JS at 4 n.2). In 14 support of his diagnosis, Dr. Tran noted that plaintiff’s treadmill test had to be stopped after 30 15 seconds due to her “fatigue, arthritis, [and] debilitating weakness”; and that her seven prior 16 surgeries have made her “weak and emotionally fragile.” [AR at 339.] He further noted the 17 following: “stress [illegible5] is a major factor” in bringing on plaintiff’s symptoms, and she is 18 incapable of even low-stress jobs; plaintiff’s physical symptoms and limitations cause emotional 19 difficulties such as depression or chronic anxiety; she experiences “probable emotional stress with 20 coping with colostomy”6; and her cardiac symptoms would constantly interfere with her attention 21 and concentration even if she was performing simple work. [AR at 340.] Dr. Tran opined that 22 plaintiff can walk less than 1 block without needing to rest or experiencing severe pain; can sit or 23 stand/walk less than two hours; needs to shift positions at will from sitting, standing or walking; will 24 5 25 26 27 28 The parties appear to agree that the word in parentheses is “emotional.” [See JS at 5, 9.] 6 The Court notes that although Dr. Tran indicated plaintiff had “[p]robable emotional stress with coping with colostomy” [AR at 340], it appears that although she “had a colostomy bag for a while . . . they finally removed that, so she doesn’t have that anymore.” [AR at 34; see also AR at 255 (September 11, 2013, treatment record noting a prior history of “diverticulitis with diverting colostomy and then closure”).] It is unclear when the colostomy was closed. 7 1 frequently need unscheduled one-hour breaks during an eight-hour workday; can rarely lift less 2 than ten pounds and can never lift above ten pounds; can never twist, stoop, crouch/squat, or 3 climb ladders or stairs; is likely to have good and bad days; would be absent more than four days 4 per month; arthritis limits the use of her harms, hands, and fingers; and “[e]motional stress limits 5 any work.” [AR at 340-43.] 6 The ALJ gave “very little weight” to the opinions of Dr. Tran: 7 12 Dr. Tran did not even see [plaintiff] until August 2014 more than a year after the alleged onset date. In addition, although he states that she had a positive treadmill test, these statements are not supported by accompanying treatment notes or any diagnostic testing reports which show negative results. In fact, Dr. Tran’s notes have a question mark by congestive heart failure, which would indicate he was unsure if she had this condition. He also reported that the echocardiogram was negative in October 2014. I further note [plaintiff] never alleged a heart condition. The treatment notes also include a two-dimensional echocardiogram which showed normal left ventricular function with . . . no regional wall motion abnormalities. Thus, I find his statements extreme and unsupported by the evidence of record and his treatment notes. 13 [AR at 22 (citations omitted).] The ALJ gave “considerable weight to the [November 2013 and 14 January 2014] opinions of the state agency medical consultants that [plaintiff] does not have a 15 severe impairment or that any impairment that was severe did not last for the required 12 month 16 period.” [AR at 21.] 8 9 10 11 17 Plaintiff contends that the ALJ failed to adequately consider Dr. Tran’s opinion regarding 18 plaintiff’s mental health and the effect that stress has on plaintiff’s physical symptoms in a work- 19 related setting and on her ability to work. [JS at 5-6.] She notes that the ALJ’s rejection of Dr. 20 Tran’s opinion focused “solely on the cardiac component” of her condition, and that the ALJ made 21 no reference to plaintiff’s inability to tolerate even a “low stress” job because of the role stress 22 plays in “bringing on” her symptoms. [JS at 6; AR at 340.] 23 Defendant responds that Dr. Tran began treating plaintiff in August 2014 and his opinion, 24 therefore, does not reflect that plaintiff has a mental condition that has lasted for (or will last) a 25 consecutive twelve months, or that commenced prior to her date last insured.7 [JS at 10.] 26 27 7 28 Dr. Tran did opine that plaintiff’s “impairments lasted or can be expected to last at least twelve months.” [AR at 341.] 8 1 Defendant also contends that plaintiff has not met her burden of proving that she has a severe 2 mental impairment; and that the ALJ properly found that Dr. Tran’s statements were extreme and 3 unsupported by the evidence of record and his treatment notes. [Id. at 10 (citing AR at 22).] 4 Although somewhat unclear, the Court determines that plaintiff is not only arguing that she 5 has a mental health impairment that the ALJ failed to specifically consider, but that she is also 6 generally arguing that “the ALJ erred by articulating legally insufficient reasons for rejecting Dr. 7 Tran’s opinion.” [JS at 24.] Moreover, Dr. Tran’s opinions regarding plaintiff’s inability to handle 8 stress in the workplace, and the effect of stress (emotional or otherwise) on her symptoms of 9 fatigue and shortness of breath, generally were incorporated into Dr. Tran’s findings regarding 10 plaintiff’s functional limitations. Thus, even though the ALJ did not specifically accept or reject Dr. 11 Tran’s opinions regarding the effect of stress on plaintiff’s ability to work, the Court will consider 12 whether the ALJ properly gave Dr. Tran’s overall opinion “little weight.” 13 14 a. Onset of Treatment with Dr. Tran and Failure to Allege a Heart Condition 15 16 The ALJ rejected Dr. Tran’s opinion because he did not first treat plaintiff until August 2014, 17 “more than a year after the alleged onset date” of June 7, 2013. [AR at 22.] The record reflects, 18 however, that plaintiff complained of shortness of breath to her treating physician, Chung The Bui, 19 M.D., in April 2014 [AR at 318], i.e., less than one year after the alleged onset date, and in May, 20 June, July, and August 2014, she complained to him of palpitations. [AR at 314-17.] Dr. Bui, who 21 treated plaintiff from April 16, 2014, to December 8, 2014, referred plaintiff to cardiologist Dr. Tran 22 in approximately June 2014. [See AR at 315-17, 335.] 23 The ALJ also rejected Dr. Tran’s opinion because plaintiff “never alleged a heart condition.” 24 [AR at 22.] The ALJ completely misstates the record. Notwithstanding the fact that plaintiff did 25 not first visit Dr. Tran until August 2014, on October 22, 2013, when she completed her Pain 26 Questionnaire, plaintiff reported that she had been experiencing “aching and crushing” “chest pain 27 and back pain” since January 2013 -- well before September 30, 2013, her date last insured for 28 9 1 purposes of DIB benefits. [AR at 202.] In her “Function Report - Adult,” also completed on 2 October 22, 2013, plaintiff reported that she “frequently” experienced pain and fatigue8 that 3 prevented her from “doing anything.” [AR at 205.] Additionally, the “Disability Report - Adult” 4 completed by the Administration clearly reflects that plaintiff alleged heart problems and/or chest 5 pain in her application for benefits. For instance, in the section detailing medical conditions, 6 plaintiff indicated that heart problems and chest pain limit her ability to work [AR at 194], and in 7 the section detailing the medical conditions that Dr. Hai Pham treated her for between August 8 2010 and October 2013, plaintiff indicated “heart problems.” Indeed, in the records produced by 9 Dr. Pham, there is a June 10, 2013, ECG test strip, reflecting that plaintiff’s ECG results were 10 “*BORDERLINE ABNORMAL* EXERCISE CAUTION” and noting that an “old infarction is 11 suspected.” [AR at 246.] Moreover, the state agency consultants in November 2013 and January 12 2014, to whom the ALJ gave “considerable weight,” both acknowledged that plaintiff was alleging 13 “heart problems and chest pain,” but both noted that “with the available information we could not 14 determine a disabling impairment.” [AR at 56, 70.] Both of these record reviews were conducted 15 without the benefit of Dr. Bui’s and/or Dr. Tran’s 2014 treatment records. Therefore, the ALJ’s 16 decision to give considerable weight to their opinions that plaintiff “does not have a severe 17 impairment or that any impairment that was severe did not last for the required 12 month period,” 18 was error because their opinions were based on an incomplete record. 19 20 Based on the foregoing, these were not specific and legitimate reasons to discount Dr. Tran’s opinions in favor of the reviewing consultant’s opinions. 21 22 b. Treadmill Test and Congestive Heart Failure 23 The ALJ stated that plaintiff’s positive treadmill test on October 9, 2014, was not supported 24 by accompanying treatment notes or any diagnostic testing reports that showed negative results. 25 [AR at 22.] He also stated that because Dr. Tran had “put a question mark by congestive heart 26 27 28 8 It appears that Dr. Bui was concerned enough about plaintiff’s complaints of fatigue and shortness of breath that he referred her to a cardiologist. [AR at 335.] 10 1 failure” in his treatment notes [see AR at 331], this was an indication that Dr. Tran “was unsure 2 if [plaintiff] had this condition.” [AR at 22.] Neither of these reasons is specific and legitimate. 3 First, during the “exercise test,” plaintiff “ran slowly” for 30 seconds, at which point the test 4 was stopped due to “[f]atigue . . . ARTHRITIS AT HEEL R>L.” [AR at 335.] It seems that any 5 “negative results” reflected on Dr. Tran’s “Exercise Stress Test Report,” therefore, arose in large 6 part from the need to stop the test after 30 seconds due to plaintiff’s fatigue and pain in her heels 7 when she ran slowly for that time period on the treadmill. [Id.] Dr. Tran himself deemed this an 8 “[e]quivocal stress test.” [Id.] Thus, the results on the treadmill test are not necessarily reflective 9 of the lack of a heart problem and, indeed, the symptoms that caused the test to be stopped after 10 30 seconds -- fatigue and debilitating weakness -- were identified by Dr. Tran as themselves being 11 a clinical indication of such a problem. [AR at 339.] 12 Second, although Dr. Tran put a question mark next to CHF (congestive heart failure) on 13 his September 8, 2014, treatment note, the ALJ failed to mention the rest of Dr. Tran’s note which 14 states in its entirety: “(1) CHF? Sob/dyspnea [shortness of breath/dyspnea] = need eval for CHF.” 15 [AR at 331.] While true, therefore, that this was an indication that Dr. Tran “was unsure” if plaintiff 16 had congestive heart failure, Dr. Tran certainly had not ruled this out as a diagnosis (neither had 17 he opined that it was the only possible diagnosis), and indeed, he indicated that further evaluation 18 for this specific condition was necessary. Moreover, even if CHF had not been specifically 19 diagnosed as the cause of plaintiff’s shortness of breath, fatigue, and/or chest pain, Dr. Tran still 20 found that plaintiff’s symptoms indicated heart failure that he classified as NYHA Class II to III, that 21 stress (emotional or otherwise) was a “major factor” in bringing on plaintiff’s symptoms, and that 22 even low work stress could not be tolerated. [AR at 340.] 23 24 Based on the foregoing, these were not specific and legitimate reasons for discounting Dr. Tran’s opinions. 25 26 27 B. CONCLUSION Because the ALJ did not provide specific and legitimate reasons for discounting Dr. Tran’s 28 11 1 opinions regarding plaintiff’s heart problems generally, and the state agency consultants did not 2 have the benefit of the later medical evidence from Dr. Bui and Dr. Tran, the Court cannot 3 conclude that the ALJ’s decision to give more weight to the opinions of the state agency 4 consultants was supported by substantial evidence. Andrews, 53 F.3d at 1041 (reports of 5 non-examining medical experts “may serve as substantial evidence when they are supported by 6 other evidence in the record and are consistent with it”). 7 Remand is warranted on this issue. 8 9 VI. 10 REMAND FOR FURTHER PROCEEDINGS 11 The Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 12 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further 13 proceedings, or where the record has been fully developed, it is appropriate to exercise this 14 discretion to direct an immediate award of benefits. See Lingenfelter v. Astrue, 504 F.3d 1028, 15 1041 (9th Cir. 2007); Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). Where there are 16 outstanding issues that must be resolved before a determination can be made, and it is not clear 17 from the record that the ALJ would be required to find plaintiff disabled if all the evidence were 18 properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 593-96. 19 In this case, there are outstanding issues that must be resolved before a final determination 20 can be made. In an effort to expedite these proceedings and to avoid any confusion or 21 misunderstanding as to what the Court intends, the Court will set forth the scope of the remand 22 proceedings. 23 discounting the opinions of Dr. Tran, the ALJ on remand shall reassess the medical evidence of 24 record, including all of Dr. Tran’s opinions. In assessing the medical opinion evidence, the ALJ 25 must explain the weight afforded to each opinion and provide legally adequate reasons for any 26 portion of the opinion that the ALJ discounts or rejects, including a legally sufficient explanation 27 for crediting one doctor’s opinion over any of the others. Finally, if warranted, the ALJ shall First, because the ALJ failed to provide specific and legitimate reasons for 28 12 1 reassess plaintiff’s RFC and determine at step four, with the assistance of a VE if necessary, 2 whether plaintiff is capable of performing her past relevant work as a bench assembler.9 If plaintiff 3 is not so capable, or if the ALJ determines to make an alternative finding at step five, then the ALJ 4 shall proceed to step five and determine, with the assistance of a VE if necessary, whether there 5 are jobs existing in significant numbers in the regional and national economy that plaintiff can still 6 perform. 7 8 VII. 9 CONCLUSION 10 IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; (2) the 11 decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further 12 proceedings consistent with this Memorandum Opinion. 13 14 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 15 16 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 17 18 DATED: July 20, 2017 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 9 Nothing herein is intended to disrupt the ALJ’s step four finding that plaintiff is unable to perform her past relevant work as a store laborer. 13

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