Kathryn Yoo v. Commissioner of Social Security Administration

Filing 20

MEMORANDUM AND ORDER by Magistrate Judge Kenly Kiya Kato. (SEE ORDER FOR FURTHER DETAILS) IT IS ORDERED that judgement be entered REVERSING the decision of the Commissioner and REMANDING this action for further proceedings consistent with this Order. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (iva)

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O 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 KATHRYN YOO, Case No. SACV 16-1847-KK Plaintiff, 11 v. 12 13 14 MEMORANDUM AND ORDER NANCY A. BERRYHILL1, Acting Commissioner of Social Security, Defendant. 15 16 Plaintiff Kathryn Yoo (“Plaintiff”) seeks review of the final decision of the 17 18 Commissioner of the Social Security Administration (“Commissioner” or 19 “Agency”) denying her application for Title II Disability Insurance Benefits 20 (“DIB”). The parties have consented to the jurisdiction of the undersigned 21 United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons 22 stated below, the Commissioner’s decision is REVERSED and this action is 23 REMANDED for further proceedings consistent with this Order. 24 /// 25 /// 26 /// 27 28 1 Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court substitutes Nancy A. Berryhill as Defendant in the instant case. 1 I. 2 PROCEDURAL HISTORY 3 On April 8, 2013, Plaintiff filed an application for DIB, alleging a disability 4 onset date of August 10, 2012. Administrative Record (“AR”) at 166-67. 5 Plaintiff’s application was denied initially on August 28, 2013, and upon 6 reconsideration on January 8, 2014. Id. at 105-17. 7 On February 21, 2014, Plaintiff requested a hearing before an Administrative 8 Law Judge (“ALJ”). Id. at 120-21. On April 15, 2015, Plaintiff appeared with 9 counsel and testified at a hearing before the assigned ALJ. Id. at 36-76. A 10 vocational expert (“VE”) also testified at the hearing. Id. at 63-71. On May 7, 11 2015, the ALJ issued a decision denying Plaintiff’s application for DIB. Id. at 15-34. 12 On May 22, 2015, Plaintiff filed a request to the Agency’s Appeals Council 13 to review the ALJ’s decision. Id. at 7-9. On August 31, 2016, the Appeals Council 14 denied Plaintiff’s request for review. Id. at 1-6. 15 On October 6, 2016, Plaintiff filed the instant action. ECF Docket No. 16 (“Dkt.”) 1, Compl. This matter is before the Court on the parties’ Joint 17 Stipulation (“JS”), filed July 12, 2017. Dkt. 19, JS. 18 II. 19 PLAINTIFF’S BACKGROUND 20 Plaintiff was born on October 30, 1970, and her alleged disability onset date 21 is August 10, 2012. AR at 166. She was forty-one years old on the alleged disability 22 onset date and forty-four years old at the time of the hearing before the ALJ. Id. at 23 39, 166. Plaintiff has a masters degree and she has work experience as a resource 24 analyst, financial analyst, administrative analyst, and administrative assistant. Id. at 25 180. Plaintiff alleges disability based on forearm pain (both arms); wrist joint pain 26 (both arms); bilateral carpal tunnel syndrome; bilateral cubital tunnel syndrome; 27 thoracic outlet syndrome; cervical myofascial pain syndrome; tendinitis of the wrist 28 2 1 (both arms); neuropathy, ulnar nerve (both arms); Reynauds syndrome; and 2 cervical (neck) radiculopathy. Id. at 178. 3 III. 4 STANDARD FOR EVALUATING DISABILITY To qualify for DIB, a claimant must demonstrate a medically determinable 5 6 physical or mental impairment that prevents her from engaging in substantial 7 gainful activity, and that is expected to result in death or to last for a continuous 8 period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 9 1998). The impairment must render the claimant incapable of performing the work 10 she previously performed and incapable of performing any other substantial gainful 11 employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 12 1098 (9th Cir. 1999). To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ 13 14 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 1. Is the claimant presently engaged in substantial gainful activity? If so, the 15 claimant is found not disabled. If not, proceed to step two. 16 2. Is the claimant’s impairment severe? If not, the claimant is found not 17 disabled. If so, proceed to step three. 18 3. Does the claimant’s impairment meet or equal one of the specific 19 20 impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, 21 the claimant is found disabled. If not, proceed to step four.2 4. Is the claimant capable of performing work she has done in the past? If so, 22 the claimant is found not disabled. If not, proceed to step five. 23 24 25 26 27 28 “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s [residual functional capacity],” or ability to work after accounting for her verifiable impairments. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009) (citing 20 C.F.R. § 416.920(e)). In determining a claimant’s residual functional capacity, an ALJ must consider all relevant evidence in the record. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 3 2 5. Is the claimant able to do any other work? If not, the claimant is found 1 disabled. If so, the claimant is found not disabled. 2 3 See Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 4 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1). The claimant has the burden of proof at steps one through four, and the 5 6 Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953- 7 54. Additionally, the ALJ has an affirmative duty to assist the claimant in 8 developing the record at every step of the inquiry. Id. at 954. If, at step four, the 9 claimant meets her burden of establishing an inability to perform past work, the 10 Commissioner must show that the claimant can perform some other work that 11 exists in “significant numbers” in the national economy, taking into account the 12 claimant’s residual functional capacity (“RFC”), age, education, and work 13 experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. 14 §§ 404.1520(g)(1), 416.920(g)(1). 15 IV. 16 THE ALJ’S DECISION 17 A. STEP ONE At step one, the ALJ found Plaintiff has not engaged “in substantial gainful 18 19 activity since August 10, 2012, the alleged onset date.” AR at 20. 20 B. STEP TWO At step two, the ALJ found Plaintiff “ha[d] the following severe 21 22 impairments: myofascial pain syndrome; carpal tunnel syndrome, mild; cubital 23 tunnel syndrome, mild; cervical spine disc disease; chondromalacia of the patella; 24 generalized anxiety disorder; major depressive disorder, in partial remission; and 25 somatic symptom disorder (20 CFR 404.1520(c)).” Id. 26 C. 27 28 STEP THREE At step three, the ALJ found Plaintiff does “not have an impairment or combination of impairments that meets or medically equals the severity of one of 4 1 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 2 404.1520(d), 404.1525 and 404.1526).” Id. 3 D. RFC DETERMINATION 4 The ALJ found Plaintiff had the following RFC: 5 to perform light work as defined in 20 CFR 404.1567(b) except: lift 6 and/or carry 10 pounds frequently, 20 pounds occasionally; stand, 7 walk, or sit 6 hours out of an 8-hour day; frequent fine and gross 8 manipulation bilaterally; frequently climb stairs, no ladders, ropes or 9 scaffolds; frequently balance, stoop, kneel, crouch and crawl; 10 occasional overhead reaching with bilateral upper extremities; avoid 11 concentrated exposure to extreme cold, vibration; avoid even 12 moderate exposure to unprotected heights, and moving and dangerous 13 machinery; no forceful gripping, forceful grasping, or forceful 14 twisting, bilaterally; and simple, routine tasks. 15 Id. at 23. 16 E. STEP FOUR At step four, the ALJ found Plaintiff is “unable to perform any past relevant 17 18 work.” Id. at 28. 19 F. STEP FIVE 20 At step five, the ALJ found “[c]onsidering [Plaintiff’s] age, education, work 21 experience, and residual functional capacity, there are jobs that exist in significant 22 numbers in the national economy that [Plaintiff] can perform.” Id. at 29. 23 V. 24 PLAINTIFF’S CLAIMS 25 Plaintiff presents six disputed issues: (1) whether the ALJ properly 26 considered the opinion of the treating doctor, Dr. John Kyawmayo Tin; (2) 27 whether the ALJ failed to properly consider the opinion of Dr. George McCan; (3) 28 whether the ALJ failed to properly consider the opinion of Dr. Godes, a 5 1 consultative examiner, concerning hand activity; (4) whether [Plaintiff] should 2 have been found limited to only occasional use of her upper extremities; (5) 3 whether the ALJ failed to properly consider a limitation concerning concentration, 4 persistence, and pace, and the ALJ failed to pose this limitations to the VE; (6) 5 whether the ALJ committed legal error in not adequately addressing [Plaintiff’s] 6 testimony regarding her pain and limitations. JS at 2. 7 The Court finds the first issue dispositive of this matter and thus declines to 8 address the remaining issues. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 9 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline 10 to reach [Plaintiff’s] alternative ground for remand.”). 11 VI. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), a district court may review the 14 Commissioner’s decision to deny benefits. The ALJ’s findings and decision should 15 be upheld if they are free of legal error and supported by substantial evidence based 16 on the record as a whole. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 17 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 18 “Substantial evidence” is evidence that a reasonable person might accept as 19 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 20 Cir. 2007). It is more than a scintilla but less than a preponderance. Id. To 21 determine whether substantial evidence supports a finding, the reviewing court 22 “must review the administrative record as a whole, weighing both the evidence that 23 supports and the evidence that detracts from the Commissioner’s conclusion.” 24 Reddick, 157 F.3d at 720 (citation omitted); see also Hill v. Astrue, 698 F.3d 1153, 25 1159 (9th Cir. 2012) (stating that a reviewing court “may not affirm simply by 26 isolating a ‘specific quantum of supporting evidence’”) (citation omitted). “If the 27 evidence can reasonably support either affirming or reversing,” the reviewing court 28 “may not substitute its judgment” for that of the Commissioner. Reddick, 157 6 1 F.3d at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) 2 (“Even when the evidence is susceptible to more than one rational interpretation, 3 we must uphold the ALJ’s findings if they are supported by inferences reasonably 4 drawn from the record.”). The Court may review only the reasons stated by the ALJ in her decision 5 6 “and may not affirm the ALJ on a ground upon which [s]he did not rely.” Orn v. 7 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only be 8 considered harmless if it is “clear from the record” that the error was 9 “inconsequential to the ultimate nondisability determination.” Robbins, 466 F.3d 10 at 885 (citation omitted). 11 VII. 12 DISCUSSION 13 THE ALJ FAILED TO PROPERLY DEVELOP THE RECORD AND 14 REJECT DR. TIN’S TREATING OPINION 15 A. RELEVANT FACTS 16 1. Dr. John Kyawamyo Tin’s Opinion 17 Dr. John Kyawamyo Tin, a Physical medicine/Rehabilitation physician, has 18 been regularly treating Plaintiff since as early as 2012 for bilateral arm pain, 19 including numbness and tingling. AR at 534. On April 6, 2015, approximately one 20 week prior to the hearing before the ALJ, Dr. Tin issued a Work Status Report 21 addressing Plaintiff’s “chronic neck pain, bilat forearm pain, [and] myofascial pain 22 syndrome.” Id. at 6804. In the report, Dr. Tin noted Plaintiff’s conditions 23 required modified activity and “[i]f modified activity is not accommodated by the 24 employer then [Plaintiff] is considered temporarily and totally disabled from [her] 25 regular work for the designated time . . . .” Id. Specifically, Dr. Tin noted Plaintiff 26 had the ability to “Lift/carry/push/pull no more than 10 pounds,” but Plaintiff 27 should “avoid repetitive motion activities of the bilateral upper extremity.” Id. 28 /// 7 1 2. VE Testimony 2 On April 15, 2015, the ALJ presented five hypotheticals to the VE during 3 Plaintiff’s hearing. Id. at 66-71. In the first hypothetical, the ALJ used the 4 following RFC in relevant part: “she can lift and/or carry 10 pounds frequently, 20 5 pounds occasionally; she can stand, walk, or s[i]t six hours out of an eight-hour day; 6 frequent fine and gross manipulation bilaterally . . . .” Id. at 66-67 (emphasis 7 added). With this hypothetical, the VE found jobs would be available at the light, 8 unskilled work level. Id. at 67. 9 In the second hypothetical, the ALJ stated, “I am going to just change the 10 frequent fine and gross manipulation to occasional fine and gross manipulation 11 bilaterally.” Id. at 68 (emphasis added). With this hypothetical, the VE found 12 there would be “no work” available to Plaintiff. Id. 13 In the third hypothetical, the ALJ provided the following: “Lift and/or carry 14 10 pounds frequently, 10 pounds occasionally; she can stand, walk, or s[i]t six hours 15 out of an eight-hour day; frequent fine and gross manipulation bilaterally . . . .” Id. 16 at 68-69 (emphasis added). With this hypothetical, the VE found jobs would be 17 available at the light, unskilled work level. Id. at 69. 18 In the fourth hypothetical, the ALJ asked, “And if I changed [the third 19 hypothetical] to occasional fine and gross manipulation, would there be other 20 work?” Id. at 70 (emphasis added). With this hypothetical, the VE found there 21 would be “no work” available to Plaintiff. Id. 22 In the fifth hypothetical, the following exchange occurred between the ALJ 23 and the VE over the April 6, 2015 Work Status Report issued by Plaintiff’s treating 24 physician, Dr. Tin: 25 [ALJ]: . . . Fifth hypothetical, lift, carry, push, pull, no more than 10 pounds; 26 and avoid repetitive motion activities of the bilateral upper 27 extremities, and no, you can’t ask for anything else because I got that 28 directly from the doctor’s note, so I cannot give any explanation. 8 1 [VE]: Depends on what he means. ... 2 3 ALJ: It says, “please avoid repetitive motion activities of the bilateral upper 4 extremities.” 5 ... 6 VE: 7 [ALJ]: Okay? 8 [VE]: Then [Plaintiff] could still do the jobs that I outlined because they’re 9 If it is – if that means constant – at frequent. 10 [ALJ]: Okay. 11 [VE]: But if it is – if he defines that as frequent being too much, [Plaintiff] 12 13 could not perform those jobs. Id. at 70-71; see also id. at 6804. 14 3. The ALJ’s Opinion 15 In coming to her RFC determination, the ALJ relied on the medical opinions 16 of eight physicians -- two state agency medical consultants; two state agency mental 17 health consultants; Dr. John Kyawmyo Tin, a treating physician; Dr. H. Harlan, 18 Bleecker, a consultative orthopedist; Dr. John Godes, a consultative internist; and 19 Dr. George McCan, a workers compensation orthopedic qualified medical 20 examiner. The ALJ ultimately concluded that Plaintiff was capable of “frequent 21 fine and gross manipulation bilaterally.” Id. at 23 (emphasis added). As to Dr. 22 Tin’s medical opinions, the ALJ stated she was giving “some but not full weight to 23 the opinions of Dr. Tin.” Id. at 26. The ALJ noted Dr. Tin restricted Plaintiff to 24 “no repetitive motion activities of the bilateral extremity,” but she concluded that 25 “[Dr. Tin’s] work restrictions given regarding the use of the upper extremities is 26 generally included in the residual functional capacity by limiting [Plaintiff] to 27 frequent fine and gross manipulations bilaterally, occasional overhead reaching, and 28 no forceful gripping, grasping and twisting.” Id. 9 1 2 B. APPLICABLE LAW “There are three types of medical opinions in social security cases: those 3 from treating physicians, examining physicians, and non-examining physicians.” 4 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also 5 20 C.F.R. §§ 404.1502, 404.1527. “As a general rule, more weight should be given 6 to the opinion of a treating source than to the opinion of doctors who do not treat 7 the claimant.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended 8 (Apr. 9, 1996)); Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Ryan 9 v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)); Turner v. Comm’r 10 11 of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010). “[T]he ALJ may only reject a treating or examining physician’s 12 uncontradicted medical opinion based on clear and convincing reasons.” 13 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 14 (citation and internal quotation marks omitted); Widmark v. Barnhart, 454 F.3d 15 1063, 1066 (9th Cir. 2006). “Where such an opinion is contradicted, however, it 16 may be rejected for specific and legitimate reasons that are supported by substantial 17 evidence in the record.” Carmickle, 533 F.3d at 1164 (citation and internal 18 quotation marks omitted); Ryan, 528 F.3d at 1198; Ghanim v. Colvin, 763 F.3d 19 1154, 1160-61 (9th Cir. 2014); Garrison, 759 F.3d at 1012. The ALJ can meet the 20 requisite specific and legitimate standard “by setting out a detailed and thorough 21 summary of the facts and conflicting clinical evidence, stating [her] interpretation 22 thereof, and making findings.” Reddick, 157 F.3d at 725. The ALJ “must set forth 23 [her] own interpretations and explain why they, rather than the [treating or 24 examining] doctors’, are correct.” Id. 25 While an ALJ is not required to discuss all the evidence presented, she must 26 explain the rejection of uncontroverted medical evidence, as well as significant 27 probative evidence. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) 28 (citation omitted). Moreover, an ALJ must consider all of the relevant evidence in 10 1 the record and may not point to only those portions of the records that bolster [her] 2 findings. See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) 3 (holding an ALJ cannot selectively rely on some entries in plaintiff’s records while 4 ignoring others). Lastly, while an ALJ is “not bound by an expert medical opinion 5 on the ultimate question of disability,” if the ALJ rejects an expert medical 6 opinion’s ultimate finding on disability, [s]he “must provide ‘specific and 7 legitimate’ reasons for rejecting the opinion.” Tommasetti v. Astrue, 533 F.3d 8 1035, 1041 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31). An ALJ is not 9 precluded from relying upon a physician’s medical findings, even if [s]he refuses to 10 accept the physician’s ultimate finding on disability. See, e.g., Magallanes v. 11 Bowen, 881 F.2d 747, 754 (9th Cir. 1989). When making a disability determination, the ALJ has a “special duty to fully 12 13 and fairly develop the record and to assure that the [plaintiff’s] interests are 14 considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). “Ambiguous 15 evidence, or the ALJ’s own finding that the record is inadequate to allow for proper 16 evaluation of the evidence, triggers the ALJ’s duty to conduct an appropriate 17 inquiry.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citing 18 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (quotation marks omitted)). 19 Moreover, “[a] specific finding of ambiguity or inadequacy of the record is not 20 necessary to trigger this duty to inquire, where the record establishes ambiguity or 21 inadequacy.” McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2010). “When the 22 ALJ’s duty is triggered by inadequate or ambiguous medical evidence, the ALJ has 23 an obligation to obtain additional medical reports or records from the claimant’s 24 treating physicians.” Held v. Colvin, 82 F. Supp. 3d 1033, 1040 (N.D. Cal. 2015). 25 C. 26 ANALYSIS As set forth above, the ALJ relied upon the medical opinions of eight 27 physicians in assessing Plaintiff’s RFC. Notably, Dr. Tin was the only treating 28 physician with a well-established treatment history with Plaintiff. As such, the ALJ 11 1 was required to provide “clear and convincing reasons” in order to properly reject 2 Dr. Tin’s opinion. Carmickle, 533 F.3d at 1164. The ALJ, however, failed to do so 3 when she did not (1) resolve a clear ambiguity created by Dr. Tin’s “repetitive 4 motion” limitation, and (2) provide reasons for rejecting Dr. Tin’s “repetitive 5 motion” limitation. Dr. Tin specifically restricted Plaintiff to work that “avoid[ed] repetitive 6 7 motion activities of the bilateral upper extremity.” AR at 26. During the hearing, 8 the ALJ posed five hypotheticals to the VE, one of which included reliance on Dr. 9 Tin’s “repetitive motion” restriction. See id. 66-71. In the first four 10 hypotheticals, the determining factor for whether any jobs were available to 11 someone with Plaintiff’s limitations came down to whether Plaintiff was limited to 12 “frequent fine and gross manipulation” or “occasional fine and gross 13 manipulation.” See id. at 66-70 (emphasis added). If Plaintiff was able to perform 14 “frequent fine and gross manipulation,” then jobs were available to Plaintiff at the 15 light work level. See id. If Plaintiff was limited to “occasional fine and gross 16 manipulation,” then there were no jobs available that Plaintiff could perform, and 17 thus, Plaintiff would be found disabled. Dr. Tin’s “repetitive motion” limitation, however, created an ambiguity in 18 19 the fifth hypothetical because his restriction on “repetitive motion” did not answer 20 the question as to how often Plaintiff can perform upper extremity motion 21 activities—i.e. “frequently” or “occasionally”. See id. at 70-71. As Defendant 22 points out, the Ninth Circuit has noted that the word “repetitively” “appears to 23 refer to a qualitative characteristic—i.e. how one uses his hands, or what type of 24 motion is required—whereas ‘constantly’ and ‘frequently’ seem to describe a 25 quantitative characteristic—i.e. how often one uses his hands in a certain manner.” 26 JS at 10; Gardner v. Astrue, 257 F. App’x 28, 30, n.5 (9th Cir. 2007)3 (emphasis in 27 28 The Court may cite to unpublished Ninth Circuit opinions issued on or after January 1, 2007. U.S. Ct. App. 9th Cir. R. 36-3(b); Fed. R. App. P. 32.1(a). 12 3 1 original). Looking at the VE’s testimony, it is clear that Dr. Tin’s use of the word 2 “repetitive”, without further explanation, created an ambiguity. As the VE 3 testified, “[i]f [repetitive] means constant . . . [t]hen [Plaintiff] could still do the 4 jobs that I outlined . . . [b]ut if [Dr. Tin] defines [repetitive] as frequent being too 5 much, [Plaintiff] could not perform those jobs.” AR at 71. Thus, in light of this 6 ambiguity, the ALJ had a duty “to conduct an appropriate inquiry,” and further 7 develop the record. Tonapetyan, 242 F.3d 1150. In addition to failing to resolve the ambiguity, the ALJ inexplicably rejected 8 9 Dr. Tin’s “repetitive motions” limitation. While the ALJ specifically notes Dr. 10 Tin’s restrictions were “generally included” in the RFC because the RFC limited 11 Plaintiff to “frequent fine and gross manipulation bilaterally, occasional overhead 12 reaching, and no forceful gripping, grasping and twisting,” it does not appear Dr. 13 Tin’s “repetitive motion” restriction was similarly included. The RFC 14 determination clearly contains a quantitative limitation in Plaintiff’s upper 15 extremity use (frequent); however, the RFC does not contain any reference to Dr. 16 Tin’s qualitative limitation (repetitive).4 See AR at 23; Gardner, 257 F. App’x at 17 3o, n.5. Thus, the ALJ’s failure to fully and fairly develop the record and to 18 provide reasons for rejecting Dr. Tin’s “repetitive motions” limitation, constitutes 19 error. 20 VIII. 21 RELIEF 22 A. “When an ALJ’s denial of benefits is not supported by the record, the 23 24 APPLICABLE LAW proper course, except in rare circumstances, is to remand to the agency for 25 26 27 28 While the ALJ explains in her Opinion, “[t]he [record] shows no additional impairment or significant worsening of the previously diagnosed impairments” and thus, “there is no objective support for the additional limitation[s],” the additional limitations she refers to are solely in the context of Plaintiff’s ability to lift/carry/push/pull. See AR at 26. Thus, she fails to provide any explanation as to why she is rejecting Dr. Tin’s “repetitive motion” limitation. 13 4 1 additional investigation or explanation.” Hill, 698 F.3d at 1162 (citation omitted). 2 “We may exercise our discretion and direct an award of benefits where no useful 3 purpose would be served by further administrative proceedings and the record has 4 been thoroughly developed.” Id. (citation omitted). “Remand for further 5 proceedings is appropriate where there are outstanding issues that must be resolved 6 before a determination can be made, and it is not clear from the record that the ALJ 7 would be required to find the claimant disabled if all the evidence were properly 8 evaluated.” Id. (citations omitted); see also Reddick, 157 F.3d at 729 (“We do not 9 remand this case for further proceedings because it is clear from the administrative 10 record that Claimant is entitled to benefits.”). 11 B. 12 ANALYSIS In this case, the record has not been fully developed. The ALJ came to her 13 conclusion without resolving the clear ambiguity raised by Dr. Tin’s “repetitive 14 motions” limitation and, further, failed to explain why she was rejecting the 15 limitation. Accordingly, remand for further proceedings is appropriate. 16 IX. 17 CONCLUSION 18 For the foregoing reasons, IT IS ORDERED that judgment be entered 19 REVERSING the decision of the Commissioner and REMANDING this action for 20 further proceedings consistent with this Order. IT IS FURTHER ORDERED that 21 the Clerk of the Court serve copies of this Order and the Judgment on counsel for 22 both parties. 23 24 25 Dated: August 03, 2017 HONORABLE KENLY KIYA KATO United States Magistrate Judge 26 27 28 14

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