Ballestero v. Commissioner of Social Security

Filing 19

ORDER on Plaintiff's Social Security Complaint, signed by Magistrate Judge Sheila K. Oberto on 2/21/17. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:15-cv-01798-SKO

DIANA CHRISTINE BALLESTERO,

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ORDER ON PLAINTIFF’S SOCIAL
SECURITY COMPLAINT

Plaintiff,

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(Doc. 1)

v.

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COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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_____________________________________/

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On November 30, 2015, Plaintiff Diana Christine Ballestero (“Plaintiff”) filed a complaint
under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the

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Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application

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for disability insurance benefits. (Doc. 1.) The matter is currently before the Court on the parties’

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briefs, which were submitted without oral argument.1

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For the reasons provided herein, the Court REVERSES the final decision of the
Commissioner and REMANDS this matter for further proceedings.

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I.

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BACKGROUND

The following includes the pertinent medical and procedural background for this matter.
Plaintiff was born on February 24, 1957 and is currently 59 years old. (Administrative Record

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The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 5 & 6.)

1 (“AR”) 123.) On August 10, 2012, Plaintiff filed a claim for disability insurance benefits, in
2 which she alleges that she became disabled on January 21, 2011. (AR 123–24.) In her disability
3 report, Plaintiff asserted that she suffered from the following physical or mental conditions: (1)
4 stenosis in the lumbar region; (2) hip bursitis; (3) muscle cramps; (4) hallux valgus; (5) Morton’s
5 neuroma and bunions; (6) migraine headaches; (7) vision problems; and (8) chronic pain
6 syndrome. (AR 144.)
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Prior to the alleged disability, Plaintiff was a senior supervisor assistant for a bank, (AR

8 27–28), between March 2006 and July 2012, (AR 146). As a part of this employment, Plaintiff
9 stated that she “[h]ad to lift and carry boxes of coin . . . from the vault to teller windows.” (AR
10 146.) Plaintiff also stated that this job required Plaintiff to frequently lift 50 pounds or more. (AR
11 146.)
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Two State agency physicians, Dr. F. Greene and Dr. F. Wilson, reviewed Plaintiff’s

13 medical file following Plaintiff’s claim of disability and provided opinions regarding Plaintiff’s
14 residual functional capacity (“RFC”).

(See, e.g., AR 47–48, 58–60.)

In an opinion dated

15 November 16, 2012, Dr. F. Greene opined that Plaintiff could occasionally “lift and/or carry” 20
16 pounds, frequently “lift and/or carry” 10 pounds, “[s]tand and/or walk” for “[a]bout 6 hours in an
17 8-hour workday,” and sit for “[m]ore than 6 hours on a sustained basis in an 8-hour workday.”
18 (AR 47.) In an opinion dated May 24, 2013, Dr. Wilson concurred with each of these assessments
19 regarding Plaintiff’s RFC. (AR 58.)
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The Social Security Administration denied Plaintiff’s disability claim initially on January

21 28, 2013, (AR 63–67), and again on reconsideration on June 5, 2013, (AR 71–75). Plaintiff then
22 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 78–79.)
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On July 25, 2014, the ALJ held a hearing regarding Plaintiff’s disability claim. (See AR

24 24–39.) Plaintiff was represented by counsel at this hearing. (See AR 24.) During the hearing,
25 Plaintiff testified that her past employment required her to lift “[c]oin boxes” weighing “about 25
26 to 30” pounds “probably . . . every day.” (AR 28–29.) Plaintiff also testified that, at the time of
27 the hearing, she could only lift “about . . . four to five” pounds “on a regular basis.” (AR 35.)
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The ALJ examined a vocational expert (“VE”), Jeanine Metildi, at Plaintiff’s disability

2 hearing. (See AR 36–38.) The VE classified Plaintiff’s past relevant work as a “teller,” which
3 Plaintiff “perform[ed] . . . at a medium exertional level due to lifting the money bags.” (AR 36.)
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The ALJ then provided the following hypothetical to the VE:

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For purposes of [Plaintiff’s] past relevant work and potential entry level work of a
[c]laimant of 57 years old with a twelfth grade education and could perform
medium work, which [sic] is allowed the ability to stand or walk six hours out of
eight hours, sit six hours out of eight hours, could she perform her past relevant
work?

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9 (AR 36–37.) The VE responded that this hypothetical person could perform her past relevant
10 work, “[a]s actually performed and as customarily performed.” (AR 37.)
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The ALJ subsequently found that Plaintiff was not disabled in a decision dated August 22,

12 2014. (AR 1409–14.) In his decision, the ALJ conducted the five-step sequential evaluation
13 analysis set forth in 20 C.F.R. § 404.1520. (See AR 1409–14.) At step one, the ALJ found that
14 Plaintiff “has not engaged in substantial gainful activity since July 11, 2012, the alleged onset
15 date.”

(AR 1411.)

At step two, the ALJ found that Plaintiff has two medically severe

16 impairments―“degenerative disc disease and headaches.” (AR 1411.) At step three, the ALJ
17 determined that Plaintiff “does not have an impairment or combination of impairments that meets
18 or medically equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart
19 P, Appendix 1.” (AR 1412.)
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The ALJ next found that Plaintiff “has the [RFC] to perform the full range of medium

21 work as defined in” 20 C.F.R. § 404.1567(c). (AR 1412.) The ALJ did not mention the opinion
22 evidence from Dr. Greene or Dr. Wilson in his RFC analysis, (see AR 1412–13), or at any other
23 point in his decision, (see AR 1409–14). The ALJ also did not address any other evidence as to
24 the amount of weight Plaintiff can lift or carry in his RFC analysis. (See AR 1412–13.)
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Finally, at step four, the ALJ determined that Plaintiff “is capable of performing past

26 relevant work as a teller . . . performed at medium” and that “[t]his work does not require the
27 performance of work-related activities precluded by the claimant’s [RFC].” (AR 1413–14.) At
28 this step, the ALJ also stated that the VE “testified in response to a hypothetical question assuming
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1 [Plaintiff’s] age, education, vocational background, and limitations, that such a hypothetical
2 individual could perform [Plaintiff’s] past relevant work as a teller.” (AR 1414.) Ultimately, the
3 ALJ found that Plaintiff “has not been under a disability, as defined in the Social Security Act,
4 from July 11, 2012, through the date of” his decision.2 (AR 1414.)
Plaintiff sought review of the ALJ’s decision before the Appeals Council. (AR 12.) On

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6 September 9, 2015, the Appeals Council denied Plaintiff’s request for review of the ALJ’s
7 decision. (AR 6–11.)
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Plaintiff then filed the Complaint in this Court on November 30, 2015. (Doc. 1.) Plaintiff

9 filed her opening brief on August 17, 2016, (Doc. 14), Defendant filed an opposition brief on
10 September 23, 2016, (Doc. 17), and Plaintiff filed her reply brief on October 11, 2016, (Doc. 18).
11 As such, this matter is fully briefed and ready for disposition.
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II.

LEGAL STANDARD

13 A.

Applicable Law

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An individual is considered “disabled” for purposes of disability benefits if he or she is

15 unable “to engage in any substantial gainful activity by reason of any medically determinable
16 physical or mental impairment which can be expected to result in death or which has lasted or can
17 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
18 However, “[a]n individual shall be determined to be under a disability only if his physical or
19 mental impairment or impairments are of such severity that he is not only unable to do his
20 previous work but cannot, considering his age, education, and work experience, engage in any
21 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
“In determining whether an individual's physical or mental impairment or impairments are

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23 of a sufficient medical severity that such impairment or impairments could be the basis of
24 eligibility [for disability benefits], the Commissioner” is required to “consider the combined effect
25 of all of the individual's impairments without regard to whether any such impairment, if
26 considered separately, would be of such severity.” Id. § 423(d)(2)(B). For purposes of this
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As the ALJ found that Plaintiff was not disabled at step four, he did not proceed to step five of the sequential
evaluation analysis. (See AR 1414.)

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1 determination, “a ‘physical or mental impairment’ is an impairment that results from anatomical,
2 physiological, or psychological abnormalities which are demonstrable by medically acceptable
3 clinical and laboratory diagnostic techniques.” Id. § 423(d)(3).
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“The Social Security Regulations set out a five-step sequential process for determining

5 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel,
6 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit provided
7 the following description of the sequential evaluation analysis:
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In step one, the ALJ determines whether a claimant is currently engaged in
substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ
proceeds to step two and evaluates whether the claimant has a medically severe
impairment or combination of impairments. If not, the claimant is not disabled. If
so, the ALJ proceeds to step three and considers whether the impairment or
combination of impairments meets or equals a listed impairment under 20 C.F.R. pt.
404, subpt. P, App. 1. If so, the claimant is automatically presumed disabled. If
not, the ALJ proceeds to step four and assesses whether the claimant is capable of
performing her past relevant work. If so, the claimant is not disabled. If not, the
ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to
perform any other substantial gainful activity in the national economy. If so, the
claimant is not disabled. If not, the claimant is disabled.

16 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 404.1520(a)(4)
17 (providing the “five-step sequential evaluation process”); id. § 416.920(a)(4) (same).

“If a

18 claimant is found to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to
19 consider subsequent steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520).
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“The claimant carries the initial burden of proving a disability in steps one through four of

21 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.
22 1989)). “However, if a claimant establishes an inability to continue her past work, the burden
23 shifts to the Commissioner in step five to show that the claimant can perform other substantial
24 gainful work.” Id. (citing Swenson, 876 F.2d at 687).
25 B.

Scope of Review

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“This court may set aside the Commissioner’s denial of disability insurance benefits [only]

27 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in
28 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is
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1 defined as being more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari,
2 253 F.3d 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way,
3 substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
4 support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
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“This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec.

6 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by
7 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th
8 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when
9 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253
10 F.3d at 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may
11 not substitute its judgment for that of the Commissioner.” (citations omitted)).
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Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a

13 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan,
14 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole,
15 weighing both evidence that supports and evidence that detracts from the [Commissioner’s]
16 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).
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Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.”

18 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin.,
19 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record
20 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’”
21 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir.
22 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking
23 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted).
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III.

DISCUSSION

Plaintiff argues that the ALJ committed reversible error in the RFC determination by

26 failing to provide “any discussion or explanation of the weight” the ALJ accorded to the opinions
27 of two State agency physicians, Dr. Greene and Dr. Wilson. (Doc. 14 at 7.) Plaintiff further
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1 asserts that this error was not harmless. (See id. at 8–11.) The Court agrees with Plaintiff’s
2 arguments.3
The ALJ determines a claimant’s RFC before step four of the sequential evaluation

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4 analysis. See, e.g., 20 C.F.R. §§ 404.1520(e) & 416.920(e). A claimant’s RFC “is the most [the
5 claimant] can still do despite [their] limitations.” Id. §§ 404.1545(a)(1) & 416.945(a)(1). “In
6 determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record . . . .”
7 Robbins, 466 F.3d at 883. “The ALJ is entitled to formulate an RFC and resolve any ambiguity or
8 inconsistency in the medical evidence . . . .” Jenkins v. Colvin, Case No. 1:15-cv-01135-SKO,
9 2016 WL 4126707, at *6 (E.D. Cal. Aug. 2, 2016) (citing Lewis v. Apfel, 236 F.3d 503, 509 (9th
10 Cir. 2001)). Additionally, “[t]he ALJ can . . . decide what weight to give to what evidence as long
11 as the ALJ’s reasoning is free of legal error and is based on substantial evidence.” Tremayne v.
12 Astrue, No. CIV 08–2795 EFB, 2010 WL 1266850, at *12 (E.D. Cal. Mar. 29, 2010) (citing
13 Reddick v. Chater, 157 F.3d 715 (9th Cir. 1998)).
“In disability benefits cases such as this, physicians may render medical, clinical opinions,

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15 or they may render opinions on the ultimate issue of disability―the claimant’s ability to perform
16 work.” Reddick, 157 F.3d at 725. Courts “distinguish among the opinions of three types of
17 physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do
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In her opening brief, Plaintiff also appears to argue that reversal is warranted because the VE erred by

19 “misclassif[ying]” Plaintiff’s “work history.” (Doc. 14 at 8.) Defendant responds that Plaintiff waived her argument

as to the VE’s testimony regarding Plaintiff’s past work. (Doc. 17 at 9–10.) In particular, Defendant asserts that

20 “Plaintiff, who was represented by counsel at the administrative hearing, failed to object in any way during the
administrating proceedings to the [VE’s] testimony that Plaintiff’s [past relevant work] was best categorized as teller.”

21 (Id. at 9.) The Court agrees with Defendant’s argument.

As Defendant correctly notes, the Ninth Circuit has held that “at least when claimants are represented by

22 counsel, they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal”

and courts “will only excuse a failure to comply with this rule when necessary to avoid a manifest injustice.” Meanel

23 v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). In this case, Plaintiff was represented by counsel at the administrative
hearing, but counsel failed to lodge any objection to the VE’s testimony regarding Plaintiff’s past work history. (See

24 AR 36–38.) As this argument was not preserved at the administrative hearing, it is waived on appeal before this
Court. See, e.g., Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 n.3 (9th Cir. 2006) (declining to address the

25 claimant’s “argument that the ALJ erred in relying on the [VE’s] testimony” where “it was not raised and preserved
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for appeal at the hearing” (citing Meanel, 172 F.3d at 1115)); Chai Johnny Xiong v. Colvin, No. 1:13–cv–01161–JLT,
2014 WL 3735358, at *8 (E.D. Cal. July 28, 2014) (finding that the claimant waived their right to raise an argument
regarding the VE’s “methodology” where they were represented by counsel at the administrative hearing, but “did not
inquire as to” this issue at the hearing). Further, Defendant asserts―and Plaintiff does not contest―that a finding of
waiver does not present a risk of manifest injustice. (See Doc. 17 at 9; Doc. 18.) Accordingly, to the extent Plaintiff
asserts that an error by the VE warrants reversal of the Commissioner’s final decision, the Court finds that this
argument is waived.

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1 not treat the claimant (examining physicians); and (3) those who neither examine nor treat the
2 claimant (nonexamining [or reviewing] physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
3 1995).

“Generally, a treating physician’s opinion carries more weight than an examining

4 physician’s, and an examining physician’s opinion carries more weight than a reviewing
5 physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citations omitted).
6 The opinions of treating physicians “are given greater weight than the opinions of other
7 physicians” because “treating physicians are employed to cure and thus have a greater opportunity
8 to know and observe the patient as an individual.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.
9 1996) (citations omitted). Nonetheless, “[t]he ALJ need not accept the opinion of any physician,
10 including a treating physician, if that opinion is brief, conclusory, and inadequately supported by
11 clinical findings.” Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (quoting Bray v.
12 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)).
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In this case, the two State agency physicians at issue, Dr. Greene and Dr. Wilson, are non-

14 examining physicians because they only reviewed Plaintiff’s file and did not otherwise treat or
15 examine Plaintiff.

(See, e.g., Doc. 14 at 4.)

“Non-examining State agency physicians,

16 psychologists and other medical consultants are qualified experts in the Social Security disability
17 programs . . . .” Chavoya v. Colvin, No. 1:14–cv–00635–BAM, 2015 WL 4873017, at *5 (E.D.
18 Cal. Aug. 12, 2015). “The opinion of a nonexamining physician cannot by itself constitute
19 substantial evidence that justifies the rejection of the opinion of either an examining physician or a
20 treating physician.” Lester, 81 F.3d at 831 (citations omitted). Additionally, “[t]he ALJ is
21 responsible for assessing a claimant’s RFC and is not bound by findings made by State agency
22 physicians, psychologists and other medical consultants.” Chavoya, 2015 WL 4873017, at *5
23 (citing 20 C.F.R. § 416.927(e)(2)(i)).
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However, “[u]nless the treating source’s opinion is given controlling weight, the [ALJ]

25 must explain in the decision the weight given to the opinions of a State agency medical or
26 psychological consultant or other program physician, psychologist, or other medical specialist.”
27 20 C.F.R. § 416.927(e)(2)(ii).

As such, “[a]n ALJ ‘may not ignore’ state agency medical

28 consultant opinions ‘and must explain the weight given to these opinions in their decisions.’”
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1 Orta v. Colvin, No. 1:12–CV–00837–SMS, 2013 WL 6047617, at *6 (E.D. Cal. Nov. 14, 2013)
2 (quoting SSR 96–6p); see, e.g., SSR 96–8p (“The RFC assessment must always consider and
3 address medical source opinions. If the RFC assessment conflicts with an opinion from a medical
4 source, the adjudicator must explain why the opinion was not adopted.”); Ushakova v. Astrue, No.
5 2:11–cv–01920 KJN, 2012 WL 4364278, at *10 (E.D. Cal. Sept. 21, 2012) (“An ALJ must
6 acknowledge the opinions of state agency and other program physicians in the record and state
7 how much weight he or she has given to each of those opinions.” (citation omitted)).
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Here, the record before the ALJ included the opinion evidence of non-examining

9 physicians Dr. Greene and Dr. Wilson. In an opinion dated November 16, 2012, Dr. Greene
10 opined, in pertinent part, that Plaintiff could occasionally “lift and/or carry” 20 pounds and
11 frequently “lift and/or carry” 10 pounds. (AR 47.) In an opinion dated May 24, 2013, Dr. Wilson
12 concurred with these assessments. (AR 58.)
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In his decision, the ALJ found that Plaintiff had the RFC “to perform the full range of

14 medium work.” (AR 1412.) This determination conflicted with the opinion evidence of Dr.
15 Greene and Dr. Wilson, insofar as these physicians opined that Plaintiff could occasionally and
16 frequently carry less weight than the weight provided under “medium work” classification.
17 Compare 20 C.F.R. 404.1567(c) (stating that “[m]edium work involves lifting no more than 50
18 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds”), with (AR
19 47 (providing Dr. Greene’s opinion that Plaintiff could occasionally “life and/or carry” 20 pounds
20 and frequently “lift and/or carry” 10 pounds), and AR 58 (providing Dr. Wilson’s opinion, in
21 which he provides the same assessments)). Nonetheless, the ALJ did not either give controlling
22 weight to conflicting testimony from another physician, or mention the opinion evidence from Dr.
23 Greene and Dr. Wilson. (See AR 1409–14.) By ignoring this opinion evidence from non24 examining physicians, the ALJ committed error. See, e.g., Shafer v. Astrue, 518 F.3d 1067, 1069
25 (9th Cir. 2008) (stating that the ALJ committed error by “disregard[ing]” the opinion evidence of a
26 non-examining physician “without explanation or further development of the record”).
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Defendant argues that, “even if the ALJ erred in not discussing the opinions of Drs. Greene

28 and Wilson, this was at most harmless error.” (Doc. 17 at 6.) The Court disagrees. The Ninth
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1 Circuit “ha[s] long recognized that harmless error principles apply in the Social Security Act
2 context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. Comm’r, Soc.
3 Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). As such, “the court will not reverse an ALJ’s
4 decision for harmless error.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citing
5 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). An error is harmless “where it is
6 inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d at 1115 (citations
7 omitted); see also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)
8 (stating that an error is also harmless “‘if the agency’s path may reasonably be discerned,’ even if
9 the agency ‘explains its decision with less than ideal clarity’” (quoting Alaska Dep’t of Envtl.
10 Conservation. v. EPA, 540 U.S. 461, 497 (2004))). “In other words, in each case [courts] look at
11 the record as a whole to determine whether the error alters the outcome of the case.” Molina, 674
12 F.3d at 1115. “[T]he nature of [the] application” of the “harmless error analysis to social security
13 cases” is “fact-intensive―‘no presumptions operate’ and ‘[courts] must analyze harmlessness in
14 light of the circumstances of the case.’” March v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015)
15 (quoting Molina, 674 F.3d at 1121). “[T]he burden of showing that an error is harmful normally
16 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409
17 (2009) (citations omitted).
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The Court finds that the ALJ’s error in ignoring the opinion evidence of Dr. Greene and

19 Dr. Wilson was not harmless. Subsequent to the RFC determination, “the [VE] characterized the
20 claimant’s past relevant work as a teller.”

(AR 1414.)

The VE also opined that Plaintiff

21 performed her past relevant work “at a medium exertion level” because Plaintiff “lift[ed] . . .
22 money bags.” (AR 36.) The ALJ then presented a hypothetical question to the VE where,
23 consistent with the RFC determination, the ALJ stated that Plaintiff “could perform medium
24 work.” (AR 36–37.) In response to this hypothetical, the VE testified that “such a hypothetical
25 individual could perform the claimant’s past relevant work as a teller.” (AR 1414.) The ALJ
26 credited the VE’s testimony and found that Plaintiff was not disabled because she “is capable of
27 performing past relevant work as a teller . . . performed at [a] medium” work level and “[t]his
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1 work does not require the performance of work-related activities precluded by the claimant’s
2 residual functional capacity.” (AR 1413–14.)
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However, if the ALJ had considered and credited the opinion testimony of Dr. Greene and

4 Dr. Wilson, his disability determination would change. Specifically, consistent with this opinion
5 testimony, the ALJ would have found that Plaintiff was not capable of occasionally or frequently
6 lifting the amount of weight associated with a medium level of work. The ALJ then would have
7 determined that Plaintiff was not able to perform her past relevant work at a medium work level.
8 As the ALJ’s step-four determination regarding disability would have been materially different if
9 he credited the opinion testimony of Dr. Greene and Dr. Wilson, the Court finds that the ALJ’s
10 error in ignoring this testimony was not inconsequential to the ultimate disability finding. The
11 Court therefore finds that the ALJ’s error was not harmless, see, e.g., Molina, 674 F.3d at 1115
12 (stating that an error is harmless “where it is inconsequential to the ultimate nondisability
13 determination” (citations omitted)), and remand is warranted.4
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In her briefing, Plaintiff argues that the Court “should reverse the ALJ’s decision and order payment of benefits.”
(Doc. 14 at 11.) The Court disagrees and finds that an order for payment of benefits is inappropriate.
Where the ALJ commits an error and that error is not harmless, the “ordinary . . . rule” is “to remand to the
agency for additional investigation or explanation.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099
(9th Cir. 2014) (citations omitted). The Ninth Circuit recognized a limited exception to this typical course where
courts “remand[] for an award of benefits instead of further proceedings on the claimant’s credibility.” Id. at 1100–01
(citations omitted); see also id. at 1100 (noting that this exception is “sometimes referred to as the ‘credit-as-true’
rule”). In determining whether to apply this exception to the “ordinary remand rule,” the court must determine, in
part, whether (1) “the record has been fully developed;” (2) “there are outstanding issues that must be resolved before
a determination of disability can be made;” and (3) “further administrative proceedings would be useful.” Id. at 1101
(citations omitted). As to the last inquiry, additional “[a]dministrative proceedings are generally useful where the
record has not been fully developed, there is a need to resolve conflicts and ambiguities, or the presentation of further
evidence . . . may well prove enlightening in light of the passage of time.” Id. (citations omitted). Ultimately, “[t]he
decision whether to remand a case for additional evidence or simply to award benefits is in [the court’s] discretion.”
Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989) (citation omitted).
Here, the Court finds that the “credit-as-true” exception to the “ordinary remand rule” is inapplicable because
additional administrative proceedings will be useful. In particular, the ALJ’s RFC determination conflicted with the
opinion evidence of Dr. Greene and Dr. Wilson and, based on the record, it is not clear that the ALJ considered this
evidence. Additional administrative proceedings will be useful to accord an opportunity to the ALJ to resolve this
conflict.
Accordingly, the Court declines Plaintiff’s request to order payment of benefits. Instead, the Court shall
remand this matter for further proceedings.

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IV.

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CONCLUSION

For the reasons provided above, the Court REVERSES the final decision of the

3 Commissioner and REMANDS this matter for further proceedings.
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IT IS SO ORDERED.

6 Dated:
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February 21, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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