Williams v. Colvin

Filing 23

ORDER by Judge Kandis A. Westmore granting 19 Plaintiff's Motion for Summary Judgment; denying 21 Defendant's Cross Motion for Summary Judgment. (kawlc2, COURT STAFF) (Filed on 9/18/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 Case No. 16-cv-01105-KAW DARNELL C WILLIAMS, 8 Plaintiff, ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 9 v. 10 NANCY A. BERRYHILL, 11 United States District Court Northern District of California Defendant. Re: Dkt. Nos. 19, 21 12 Plaintiff Darnell C. Williams seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the 13 14 Commissioner's final decision, and the remand of this case for further proceedings. Pending 15 before the Court is Plaintiff's motion for summary judgment and Defendant's cross-motion for 16 summary judgment. Having considered the papers filed by the parties, and for the reasons set 17 forth below, the Court GRANTS Plaintiff's motion for summary judgment, and DENIES 18 Defendant's cross-motion for summary judgment. 19 I. BACKGROUND On May 3, 2012, Plaintiff filed applications for Title II Disability Insurance Benefits and 20 21 Title XVI Supplemental Security Income, alleging a disability that began on December 31, 2008. 1 22 (Administrative Record ("AR") 225-235.) The Social Security Administration ("SSA") denied 23 Plaintiff's applications initially and on reconsideration. (AR 158, 167.) Plaintiff requested a 24 hearing before an Administrative Law Judge ("ALJ"). (AR 174-75.) 25 1 26 27 28 Plaintiff previously filed an application for Title II Disability Insurance Benefits in August 2011, which was denied in December 2011. (AR 134.) Plaintiff did not request reconsideration of the denial, and the Administrative Law Judge ("ALJ") dismissed Plaintiff's request for a hearing with respect to the previously adjudicated period, i.e., through December 2011. (AR 18.) The ALJ's decision thus adjudicated the period from December 29, 2011 through the date of the ALJ's decision. (Id.) The assigned ALJ held a hearing on March 25, 2014, at which Plaintiff and Vocational 1 2 Expert ("VE") Mary Ciddio testified. (AR 42.) At the beginning of the hearing, the ALJ and 3 Plaintiff's counsel discussed the absence of medical records from the Watson Wellness Center; the 4 ALJ stated that he would issue a subpoena for the records and recommended that Plaintiff's 5 counsel file a complaint with the medical board. (AR 43-44.) In relevant part, Plaintiff testified 6 that following an operation on his left wrist, he still had problems using his left hand, including 7 shaving, buttoning his shirt, washing dishes. (AR 51-52, 56.) Plaintiff stated that his fingers were 8 stiff and that he had problems bending them. (AR 52.) Plaintiff also testified that he had 9 problems with his lower back, and that he was going through therapy for sciatica. (AR 53.) Plaintiff discussed recent x-rays of his back, which Plaintiff's counsel stated were likely part of the 11 United States District Court Northern District of California 10 Watson records. (AR 54-55.) When questioned by his attorney, Plaintiff stated that he walked all 12 the time and for "a couple of blocks," but that he could not stand very long. (AR 59.) 13 The ALJ then examined VE Ciddio, giving her a hypothetical of an individual with a GED, 14 no past relevant work, and restricted to exertional activity. (AR 68.) The individual would also be 15 able to stand and walk six out of eight hours, sit six out of eight hours, lift up to 20 pounds 16 occasionally and 10 pounds frequently, and perform stooping, kneeling, crouching, and crawling 17 on an occasional basis. (Id.) The hypothetical also included that there were no restrictions on 18 gross or fine manipulation, but that the individual could not perform repetitive forceful gripping 19 on the left. (AR 69.) Finally, the individual would be limited to simple, repetitive tasks. Based 20 on this hypothetical, the VE answered that such an individual could work as a fast food worker, 21 marker, and plastics inspector and hand packager. (AR 69.) The ALJ then asked if the VE's 22 response would be different if the left hand was just a helper hand without useful manipulation, 23 gripping, or grasping. (AR 70.) The VE responded it would not change the response. Next, the 24 ALJ presented a hypothetical of no forceful gripping bilaterally, to which the VE responded that 25 the marker would be eliminated but the fast food worker and inspector would still be fine. (Id.) 26 Finally, the ALJ inquired about an individual who could only occasionally grip, grasp, and 27 manipulate bilaterally. The VE answered that in such a case, the jobs would be eliminated. (AR 28 71-72.) 2 1 Plaintiff's counsel then questioned the VE how an individual whose left hand could work 2 only as a helper hand could work as a fast food worker. (AR 71.) The VE responded that in such 3 a case, the left hand would not be performing the fine or gross manipulation. (AR 72.) Instead, 4 the individual would perform duties such as flipping burgers, French fries, using a cash register, 5 and bagging things with the dominant hand. (Id.) The VE attested that she had seen people with 6 greater limitations performing such jobs because it was very light work. With respect to plastics 7 inspector, Plaintiff's counsel pointed out that one of the descriptions included attaching metal 8 bands to bottle tops. (Id.) The VE responded that there could be a ten percent erosion for that 9 aspect. (AR 73.) 10 The ALJ then concluded the hearing, stating that he would leave the record open. (AR 73.) United States District Court Northern District of California 11 The ALJ indicated that Plaintiff should try to get the Watson records, and again stated that he 12 would send a subpoena. (Id.) 13 The ALJ issued an unfavorable decision on July 25, 2014. (AR 18-32.) A request for 14 review of the hearing decision was filed with the Appeals Council on September 25, 2014. (AR 15 14.) On September 24, 2015, the Appeals Court denied Plaintiff's request for review. (AR 6-8.) 16 On March 4, 2016, Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. § 17 405(g). (Compl., Dkt. No. 1.) 18 On September 19, 2016, Plaintiff filed a motion for summary judgment. (Plf.'s Mot., Dkt. 19 No. 19.) On October 17, 2016, Defendant filed an opposition and cross-motion for summary 20 judgment. (Def.'s Opp'n, Dkt. No. 21.) On November 1, 2016, Plaintiff filed a reply brief. (Plf.'s 21 Reply, Dkt. No. 22.) 22 23 II. LEGAL STANDARD A court may reverse the Commissioner's denial of disability benefits only when the 24 Commissioner's findings are 1) based on legal error or 2) are not supported by substantial 25 evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 26 (9th Cir. 1999). Substantial evidence is "more than a mere scintilla but less than a 27 preponderance"; it is "such relevant evidence as a reasonable mind might accept as adequate to 28 support a conclusion." Id. at 1098; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). In 3 1 determining whether the Commissioner's findings are supported by substantial evidence, the 2 Court must consider the evidence as a whole, weighing both the evidence that supports and the 3 evidence that detracts from the Commissioner's conclusion. Id. "Where evidence is susceptible 4 to more than one rational interpretation, the ALJ's decision should be upheld." Ryan v. Comm'r 5 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Under SSA regulations, disability claims are evaluated according to a five-step sequential 6 7 evaluation. Reddick, 157 F.3d at 721. At step one, the Commissioner determines whether a 8 claimant is currently engaged in substantial gainful activity. Id. If so, the claimant is not disabled. 9 20 C.F.R. § 404.1520(b). At step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments," as defined in 20 C.F.R. § 11 United States District Court Northern District of California 10 404.1520(c). Reddick, 157 F.3d 715 at 721. If the answer is no, the claimant is not disabled. Id. 12 If the answer is yes, the Commissioner proceeds to step three, and determines whether the 13 impairment meets or equals a listed impairment under 20 C.F.R. § 404, Subpart P, Appendix 1. 20 14 C.F.R. § 404.1520(d). If this requirement is met, the claimant is disabled. Reddick, 157 F.3d 715 15 at 721. 16 If a claimant does not have a condition which meets or equals a listed impairment, the 17 fourth step in the sequential evaluation process is to determine the claimant's residual functional 18 capacity ("RFC") or what work, if any, the claimant is capable of performing on a sustained basis, 19 despite the claimant’s impairment or impairments. 20 C.F.R. § 404.1520(e). If the claimant can 20 perform such work, he is not disabled. 20 C.F.R. § 404.1520(f). RFC is the application of a legal 21 standard to the medical facts concerning the claimant's physical capacity. 20 C.F.R. § 22 404.1545(a). If the claimant meets the burden of establishing an inability to perform prior work, 23 the Commissioner must show, at step five, that the claimant can perform other substantial gainful 24 work that exists in the national economy. Reddick, 157 F.3d 715 at 721. The claimant bears the 25 burden of proof in steps one through four. Bustamante, 262 F.3d at 953-954. The burden shifts to 26 the Commissioner in step five. Id. at 954. 27 28 III. THE ALJ'S DECISION On July 25, 2014, the ALJ issued an unfavorable decision. (AR 18-32.) At step one, the 4 1 ALJ determined that Plaintiff had not been engaged in substantial gainful activity since December 2 31, 2008, the alleged onset date. (AR 21.) 3 At step two, the ALJ identified the following severe impairments: history of repeated 4 alcohol abuse, degenerative disc disease at C4 to C7 with disc space narrowing and spurring, 5 degenerative changes of the lumbar spine at L5-S1, mild left carpal tunnel syndrome, 6 mononeuropathy of the left ulnar nerve, status post left cubital tunnel and carpal tunnel releases 7 without complications, and mood disorder. (AR 21.) 8 9 At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. (AR 21.) First, the ALJ found that Plaintiff had mild restrictions in activities of daily living, pointing to the consultative exam in 11 United States District Court Northern District of California 10 which Plaintiff indicated he spent time performing household chores. (AR 22.) Plaintiff also 12 reported preparing meals, performing personal grooming activities, and going shopping. Second, 13 the ALJ found that Plaintiff had mild difficulties in social functioning, as Plaintiff had indicated 14 that he attended social group meeting three to four times a week, attended church services twice a 15 week, and spent time with family and friends. (Id.) Third, the ALJ found that Plaintiff had 16 moderate difficulties in concentration, persistence, or pace, based on the consultative exam which 17 showed that Plaintiff had fair memory, judgment, and insight, poor to fair attention and 18 concentration, and a mildly tangential thought process. (Id.) The ALJ also concluded that 19 Plaintiff had experienced no episodes of decompensation of an extended period. 20 At step four, the ALJ determined that Plaintiff had the residual functional capacity ("RFC") 21 to perform light work, except that the plaintiff could: stand, walk, or sit for six hours out of an 22 eight-hour workday; lift and/or carry twenty pounds occasionally and ten pounds frequently; 23 perform all postural activities, including stooping, kneeling, or crouching; and reach in all 24 directions. (AR 22.) The ALJ also found that Plaintiff had no limitation with respect to fine or 25 gross manipulation, but also that Plaintiff could not perform repetitive, forceful gripping on the 26 left. (AR 23.) The ALJ restricted Plaintiff to simple, repetitive tasks. (Id.) In so concluding, the 27 ALJ considered Plaintiff's hearing testimony and various medical reports. (AR 23-24.) The ALJ 28 ultimately concluded that the credibility of Plaintiff's allegations regarding the severity of his 5 1 symptoms and limitations was diminished because Plaintiff's allegations were greater than 2 expected in light of the objective evidence in the record, pointing to Plaintiff's daily activities and 3 medical examinations. (AR 24-25.) In light of Plaintiff's subjective complaints of left upper 4 extremity pain, weakness, and tingling, however, the ALJ included a limitation of no repetitive 5 gripping and/or grasping with the left upper extremity. (AR 30.) 6 At step five, the ALJ found that there were jobs that existed in significant numbers in the 7 national economy, specifically as a fast food worker, marker, and hand packager. (AR 31-32.) 8 The ALJ also found that the VE's testimony was "consistent with the information contained in the 9 Dictionary of Occupational Titles." (AR 32.) 10 IV. DISCUSSION United States District Court Northern District of California 11 Plaintiff challenges the ALJ's decision on three grounds. (Plf.'s Mot. at 2.) First, Plaintiff 12 contends that the ALJ made materially inconsistent findings regarding Plaintiff's ability to use his 13 left hand for gross manipulation. Second, Plaintiff argues that the ALJ failed to comply with 14 Social Security Ruling ("SSR") 00-4p. Finally, Plaintiff contends that the ALJ should have 15 obtained additional consultative examinations and/or medical expert testimony. 16 A. 17 Plaintiff first challenges the ALJ's RFC assessment as materially inconsistent. (Plf.'s Mot. Inconsistent Findings 18 at 7.) The ALJ found that Plaintiff had "no limitation with regard to fine or gross manipulation," 19 yet at the same time found that Plaintiff could not perform "repetitive, forceful gripping" with his 20 left hand. (AR 23.) Defendant does not respond to this argument. 21 As pointed out by Plaintiff, handling is considered a manipulative function. 20 C.F.R. § 22 404.1569a(c)(vi) (listing reaching, handling, stooping, climbing, crawling, and crouching as 23 manipulative or postural functions). Handling, in turn, includes grasping. SSR 85-15 ("handling 24 (seizing, holding, grasping, turning or otherwise working primarily with the whole hand or 25 hands"), 1985 WL 56857 (Jan. 1, 1985). Likewise, "gross" use of hands includes grasping, 26 holding, and turning objects. SSR 83-14, 1983 WL 31254 (Jan. 1, 1983). In short, gross 27 manipulation includes grasping, or gripping. Thus, by finding that Plaintiff had no limitations 28 with regard to gross manipulation, before including a limit that Plaintiff could not perform 6 1 repetitive, forceful gripping with his left hand, the ALJ created an inconsistency by including a 2 limit after finding that Plaintiff had no limits. 3 While the Court finds that the ALJ's RFC assessment is inconsistent, Plaintiff does not 4 adequately explain why this is material or requires remand. The addition of the limitation on the 5 repetitive, forceful gripping is more restrictive than a finding of no limitations, and the VE 6 considered the left hand limitation in the ALJ's hypotheticals, discussing the ability of an 7 individual to perform jobs if their left hand was unable to perform repetitive forceful gripping or 8 even any useful manipulation, gripping, or grasping. (See AR 68-73.) Therefore, the fact that the 9 ALJ added a limitation after finding that Plaintiff lacked any limitations in gross manipulation is not harmful error, as the limitation was addressed by the VE's testimony. As such, the Court 11 United States District Court Northern District of California 10 concludes remand is not appropriate on this ground. 12 B. 13 Second, Plaintiff argues that the ALJ did not comply with SSR 00-4p. "SSR 00-4p SSR 00-4p 14 unambiguously provides that 'when a [VE] provides evidence about the requirements of a job or 15 occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict 16 between that [VE] evidence and information provided in the Dictionary of Occupational Titles 17 [("DOT")].'" Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (quoting SSR 00-4p, 2000 18 WL 1898704 (Dec. 4, 2000)) (internal modifications omitted). Here, the ALJ indisputably did not 19 inquire about any possible conflict, but did write in his opinion that the testimony was consistent 20 with the DOT. (AR 32; see also Def.'s Opp'n at 4 ("the ALJ did not specifically ask the VE 21 whether her testimony conflicted with the DOT").) Error in failing to follow SSR 00-4p is 22 harmless only if: 1) there is no conflict; or 2) the VE provided sufficient support for her 23 conclusion to justify any potential conflicts. Massachi, 486 F.3d at 1153-54 n. 19. 24 Here, the ALJ's RFC found that Plaintiff was unable to do repetitive, forceful gripping with 25 his left hand. (AR 23.) Plaintiff argues there is a conflict, however, because the DOT provides for 26 constant handling (2/3 or more of the time) for fast food workers, frequent handling (1/3 or more 27 of the time) for inspectors and hand packagers, and constant handling (2/3 or more of the time) for 28 markers. (Plf.'s Mot. at 9; see also Plf.'s Exh. A (DOT excerpts regarding fast food workers, 7 1 inspectors and hand packagers, and markers).) Defendant responds that the SSA "interprets the 2 DOT's reaching and handling requirements as requiring only the use of one arm, not both arms; 3 therefore, there is no conflict between the ALJ's RFC and the DOT because Plaintiff has no 4 reaching/manipulative limitations related to his dominant right arm." (Def.'s Opp'n at 2.) In other 5 words, Defendant asserts that "the DOT's requirements are met if they can be performed with one 6 arm."2 (Id.) Recently, the Ninth Circuit rejected the contention that the DOT only required the use of 7 8 one arm, not both arms. In Lamear v. Berryhill, the ALJ found that the plaintiff could only 9 occasionally handle, finger, and reach overbroad with his left, non-dominant hand and arm, but that the plaintiff had no limitations with his right arm. 865 F.3d 1201, 1203 (9th Cir. 2017). The 11 United States District Court Northern District of California 10 VE opined that the plaintiff could work as an office helper, mail clerk, or parking lot cashier, even 12 though the DOT stated that these jobs require "frequent" handling, fingering, and reaching. Id. 13 The VE did not explain how the plaintiff could perform this work with his left hand and arm 14 limitations, and the ALJ did not ask the VE to reconcile the inconsistency between the plaintiff's 15 limitations and the DOT's job descriptions. Id. at 1204. On appeal, the Ninth Circuit explained 16 that it could not, based on common experience, conclude that "it is likely and foreseeable that an 17 office helper, mail clerk, or parking lot cashier with limitations on his ability to 'handle, finger and 18 feel with the left hand' could perform his duties." Id. at 1205. Instead, the Ninth Circuit found 19 that "all three jobs require workers to 'frequently' engage in handling, fingering, and reaching, 20 which means that these types of activities could be necessary for as much as two-thirds of the 21 workday. Absent anything in the record to explain this apparent discrepancy," the Ninth Circuit 22 found it necessary to reverse and remand so that the ALJ could ask the VE to reconcile the jobs 23 with the plaintiff's left hand limitations. Id. at 1205-06. While the SSA argued that the conflict 24 was harmless because the court could "presum[e] that the handling, fingering, and reaching 25 requirements are unilateral since the DOT does not expressly state that they demand both hands," 26 2 27 28 Plaintiff argues this is a post-hoc rationale. (Plf.'s Reply at 1.) It is not clear to the Court that this is a post-hoc rationale, based on Defendant's contention that this has been the agency's longstanding interpretation. In any case, as discussed below, the Court rejects Defendant's argument that the DOT requirements are always met with unilateral use of hands, rather than bilateral use. 8 1 the Ninth Circuit rejected this argument, explaining that it "cannot determine from this record, the 2 DOT, or our common experience whether the jobs in question require both hands." Id. at 1206. In 3 other words, the Ninth Circuit did not agree that the DOT job requirements necessarily required 4 only unilateral capabilities, rather than bilateral capabilities. While a job could require only 5 unilateral capabilities, this required further inquiry by the ALJ to determine what the DOT 6 descriptions actually entailed. 7 Here, the ALJ did not inquire about any potential dispute, and instead found that the VE's 8 testimony was consistent with the information contained in the DOT. (AR 32.) The ALJ also did 9 not inquire as to whether the DOT description required unilateral or bilateral use of the arms. Notably, the VE also testified that an individual with no ability to do forceful gripping bilaterally 11 United States District Court Northern District of California 10 would still be capable of doing the fast food worker and inspector jobs, despite both DOT job 12 descriptions requiring frequent handling (1/3 to 2/3 of the time) or constant handling (2/3 of the 13 time). The VE did not explain how such a person would be able to perform jobs that required 14 handling at least 1/3 to 2/3 of the time per the DOT. Thus, it appears a conflict existed between 15 the VE's testimony and the DOT, which the ALJ did not address. 16 In the alternative, Defendant argues that the VE provided an explanation for any conflict 17 because the VE discussed a hypothetical where there was no gross repetitive forceful manipulation 18 with the left hand, or where the left hand operated only as a helper hand. (Def.'s Opp'n at 5.) 19 Further, the VE explained that most of the work would be done with the dominant hand, and that 20 she had observed individuals doing those jobs with similar or even greater limitations than the 21 ones provided by the ALJ. (Id.) Plaintiff responds that Defendant cannot rely on the VE's 22 testimony as a reasonable explanation for any conflict when the VE did not address any such 23 conflict to begin with. (Plf.'s Reply at 6.) Otherwise, "a [VE]'s testimony made without reference 24 to the DOT is actually an explanation for any conflict between the testimony and the DOT." (Id.) 25 The Ninth Circuit requires that the ALJ "ask the expert to explain the conflict and then 26 determine whether the vocational expert's explanation for the conflict is reasonable before relying 27 on the expert's testimony to reach a disability determination." Zavalin v. Colvin, 778 F.3d 842, 28 846 (9th Cir. 2015). The failure to do so may leave the court "with a gap in the record that 9 1 precludes [it] from determining whether the ALJ's decision is supported by substantial evidence." 2 Id. Here, the ALJ did not find a conflict, and therefore could not have explained why the conflict 3 would be reasonable before then relying on the VE's testimony. The VE's discussion that she had 4 seen people perform jobs with similar or greater limitations did not address or acknowledge that a 5 conflict existed with the requirements of constant or frequent handling as described by the DOT. 6 See id. at 847 ("because the ALJ failed to recognize an inconsistency, she did not ask the expert to 7 explain why a person with [the plaintiff]'s limitation could nevertheless meet the demands of 8 Level 3 Reasoning"). Thus, the ALJ erred in failing to inquire into or reconcile the conflict. Finally, Defendant suggests that it was the responsibility of Plaintiff's counsel to further 10 cross-examine the VE. (Def.'s Opp'n at 5.) The Court rejects this argument. The Ninth Circuit 11 United States District Court Northern District of California 9 has been "clear that a counsel's failure does not relieve the ALJ of his express duty to reconcile 12 apparent conflicts through questioning: 'When there is an apparent conflict between the vocational 13 expert's testimony and the DOT--for example, expert testimony that a claimant can perform an 14 occupation involving DOT requirements that appear more than the claimant can handle--the ALJ 15 is required to reconcile the inconsistency.'" Lamear, 865 F.3d at 1206 (quoting Zavalin, 778 F.3d 16 at 846). 17 The Court finds it necessary to remand the case for compliance with SSR 00-4p. 18 C. 19 Finally, Plaintiff contends that the ALJ did not satisfy his duty to develop the record 20 because the ALJ did not obtain an updated report or evaluation of Plaintiff's physical impairments 21 after receiving a January 2014 x-ray. (Plf.'s Mot. at 10.) The January 2014 x-ray showed L5-S1 22 degenerative disk disease and facet anthropathy with grade I spondylolisthesis. (AR 1131.) 23 Plaintiff further argues that this failure to seek an updated report or evaluation was prejudicial as 24 Plaintiff's ability to stand and walk was at issue, and the medical opinions may have been 25 impacted by this x-ray. (Plf.'s Mot. at 11.) Defendant responds that Plaintiff had the burden of 26 providing the required medical evidence, and that the ALJ properly found that the available 27 medical evidence was sufficient to asses Plaintiff's RFC. (Def.'s Opp'n at 7.) Further, Defendant 28 asserts that Plaintiff's testimony about his problems walking could not have triggered a duty to Development of the Administrative Record 10 1 order a consultative examination because the ALJ found Plaintiff's testimony to not be credible, a 2 finding that Plaintiff did not challenge. (Id. at 6-7.) 3 In general, an ALJ has a "duty to fully and fairly develop the record," including conducting 4 an appropriate inquiry if the evidence is ambiguous or on "the ALJ's own finding that the record is 5 inadequate to allow for proper evaluation of the evidence . . . ." Tonapetyan v. Halter, 242 F.3d 6 1144, 1150 (9th Cir. 2001). The Ninth Circuit has found, however, that this duty to develop the 7 record can be satisfied by: "subpoenaing the claimant's physicians, submitting questions to the 8 claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow 9 supplementation of the record." Id. Thus, even assuming that the ALJ's duty to develop the record was triggered in this case, the ALJ satisfied that duty by holding the record open after the 11 United States District Court Northern District of California 10 hearing. See Chase v. Colvin, 665 Fed. Appx. 583, 586 (9th Cir. 2016) ("Even assuming arguendo 12 that further development of the record in this case was required, the ALJ satisfied this duty by 13 'keeping the record open after the hearing'") (quoting Tonapetyan, 242 F.3d at 1150). 14 15 V. CONCLUSION For the reasons set forth above, the Court finds that the ALJ failed to comply with SSR 00- 16 4p. Therefore, Plaintiff's motion for summary judgment is GRANTED, and Defendant's motion 17 for summary judgment is DENIED. The Court remands this case for further proceedings. 18 The Clerk of the Court shall close this case. 19 IT IS SO ORDERED. 20 Dated: September 18, 2017 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 21 22 23 24 25 26 27 28 11

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