Jones v. Commissioner Social Security Administration

Filing 19

Opinion and Order - The Commissioner's decision that Plaintiff was not disabled is REVERSED AND REMANDED for further proceedings consistent with this Opinion and Order. Signed on 1/22/2019 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DJUANA, J.1,

Case No. 3:17-cv-1842-SI
Plaintiff,

OPINION AND ORDER

v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations, performing the
duties and functions not reserved to the
Commissioner of Social Security,
Defendant.
Merrill Schneider, SCHNEIDER KERR & ROBICHAUX, P.O. Box 14490, Portland, Oregon 97293.
Of Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204;
Jordan D. Goddard, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL,
Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of
Attorneys for Defendant.

1

In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party in this case. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.
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Michael H. Simon, District Judge.
Djuana, J. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“Commissioner”) denying her application for Supplemental
Security Income (“SSI”). For the reasons discussed below, the Court REVERSES the
Commissioner’s decision and REMANDS for further proceedings consistent with this opinion.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
PAGE 2 – OPINION AND ORDER

BACKGROUND
A. Plaintiff’s Application
Plaintiff protectively filed for SSI on November 4, 2011. AR 254. In her claim, Plaintiff
alleged a disability onset date of January 15, 2004. AR 252. Plaintiff alleged disability due to
anxiety; fibrosis; drug and alcohol problems; chronic pain; and bipolar disorder. AR 257.
Plaintiff was born on September 25, 1971, and she was 32 years old as of the alleged disability
onset date. AR 87. Plaintiff is currently 47 years old. Id.
Plaintiff’s claim was denied initially on February 9, 2012, and upon reconsideration on
August 8, 2012. Plaintiff’s first hearing before an Administrative Law Judge (“ALJ”) occurred
on June 4, 2014, but was continued to allow Plaintiff to seek legal representation and for
development of the record. AR 68-73. Plaintiff appeared before a new ALJ (“the ALJ”) with the
assistance of counsel on July 23, 2015. On September 22, 2015, the ALJ found Plaintiff not
disabled and not entitled to SSI under the Social Security Act. AR 30.
Plaintiff then appealed the ALJ’s decision to the Appeals Council and submitted an
updated disability report. AR 311-318. The Appeals Council denied Plaintiff’s request for review
on September 13, 2017, making the ALJ’s decision the final decision of the Commissioner.
AR 1. Plaintiff subsequently filed a complaint in district court on November 16, 2017, seeking
judicial review of the Commissioner’s final decision denying Plaintiff’s application for SSI.
B. The Sequential Analysis
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
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Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.

Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.

2.

Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.

3.

Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.

4.

Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.

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§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5.

Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
At step one, the ALJ found that Plaintiff had not participated in substantial gainful
activity since November 4, 2011. AR 22. At step two, the ALJ found the following severe
medical impairments, which more than minimally affect Plaintiff’s ability to work: left thumb
carpometacarpal degenerative joint disease; left great toe degenerative joint disease; and
substance abuse in remission. Id. The ALJ also concluded that Plaintiff’s anxiety did not cause
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more than minimal limitation to the Plaintiff’s ability to perform basic work activities and thus
was non-severe. AR 23.
At step three, the ALJ found that Plaintiff does not have any impairment or combination
of impairments that meets the severity of one of the listed impairments in 20 C.F.R. § 404,
Subpart P, Appendix 1. AR 24. The ALJ gave particular attention to Listing 1.02, major
dysfunction of a joint, but concluded that Plaintiff’s injuries did not satisfy the requirements for
this listing. AR 24.
The ALJ then evaluated Plaintiff’s RFC, and found that Plaintiff had an RFC as follows:
[T]he claimant has the residual functional capacity to perform light
work . . . including the ability to do the following. She can never
climb ladders. She can occasionally climb stairs. She can
frequently stoop, kneel, crouch and crawl. She can frequently
handle. She can perform work that involves few workplace
changes.
AR 24.
At step four, the ALJ considered Plaintiff’s RFC, testimony from the vocational expert
(“VE”), and the mental and physical demands of Plaintiff’s past relevant work as a home
attendant. AR 28. The ALJ concluded that Plaintiff’s RFC precluded performance of Plaintiff’s
past relevant work. Id.
At step five, the ALJ considered Plaintiff’s RFC, age, education, work experience, and
the VE’s testimony to determine that jobs exist in significant numbers in the national economy
that Plaintiff could perform. AR 28-29. These jobs included work as a cashier, housekeeper, and
small products assembler. AR 29. The ALJ also asked the VE what jobs would be available if
someone with Plaintiff’s characteristics were limited to sedentary work, rather than light work;
the VE testified that work would be available as a charge account clerk, document preparer, and

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final assembler. Id. Accordingly, the ALJ found that Plaintiff has not been disabled as that term
is defined under the Social Security Act since November 4, 2011, the date of her application. Id.
DISCUSSION
Plaintiff contends that the ALJ erred in the following general aspects of his decision:
(A) improperly failing to classify many of Plaintiff’s impairments as severe at step two;
(B) improperly rejecting the medical opinions of Plaintiff’s treating physicians; (C) failing to
find that Plaintiff’s impairments meet a listing at step three; (D) improperly evaluating Plaintiff’s
testimony about her symptoms; (E) improperly evaluating lay witness testimony from Plaintiff’s
mother; and (F) failing to present a complete hypothetical to the VE at step five.
A. Severity of Plaintiff’s Impairments
The ALJ evaluates at step two “whether the claimant has a medically severe impairment
or combination of impairments. If not, the claimant is not disabled.” Buck v. Berryhill, 869
F.3d 1040, 1048 (9th Cir. 2017). If so, however, the ALJ proceeds with the sequential analysis.
Thus, step two is merely a threshold determination meant to screen out weak claims. Bowen, 482
U.S. at 146-47.
Plaintiff argues that the ALJ in this case improperly failed to classify many of Plaintiff’s
medical and mental impairments as “severe” at step two. Plaintiff further argues that this error
was harmful because these impairments affect Plaintiff’s functioning and limitations, and the
impairments formed the basis for Plaintiff’s treating physician’s opined limitations. Plaintiff
essentially argues that later steps in the ALJ’s sequential analysis would have taken a different
turn if the ALJ had found more of Plaintiff’s impairments “severe” at step two.
Plaintiff’s argument “misunderstands the purpose of step two in the analysis.” Buck, 869
F.3d at 1048. In Buck, the plaintiff had a second hearing before a new ALJ, who found additional
severe impairments at step two but nonetheless arrived at the same RFC as the first ALJ; the
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plaintiff unsuccessfully argued that the new severe impairments necessarily should have changed
the RFC determination. Id. at 1048-49. Plaintiff’s step two argument is similar: that the ALJ’s
RFC determination and other conclusions would have changed if the ALJ had classified more of
Plaintiff’s impairments as “severe.” As the Ninth Circuit has explained, however:
Step two is merely a threshold determination meant to screen out
weak claims. It is not meant to identify the impairments that should
be taken into account when determining the RFC. In fact, “[i]n
assessing RFC, the adjudicator must consider limitations and
restrictions imposed by all of an individual’s impairments, even
those that are not ‘severe.’” [SSR] 96-8p, 1996 WL 374184, at *5
(July 2, 1996). The RFC therefore should be exactly the same
regardless of whether certain impairments are considered “severe”
or not.
Id. (emphasis in original) (citations omitted).
The purpose of step two is to screen out weak disability claims in their entirety—not to
remove specific, poorly documented impairments from consideration in the sequential analysis.
Because Plaintiff’s entire claim for SSI was not “screened out” at step two, any failure by the
ALJ to find additional severe impairments was harmless and does not present a basis for remand.
Id. at 1049 (because “step two was decided in [Plaintiff’s] favor . . . [h]e could not possibly have
been prejudiced”). The ALJ considered all of Plaintiff’s impairments—severe and nonsevere—in
determining her RFC.
B. Treating Physician Opinions
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th
Cir. 2008). The Ninth Circuit distinguishes between the opinions of three types of physicians:
treating physicians, examining physicians, and non-examining physicians. Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Generally, “a treating physician’s opinion carries
more weight than an examining physician’s, and an examining physician’s opinion carries more
PAGE 8 – OPINION AND ORDER

weight than a reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th
Cir. 2001). If a treating physician’s opinion is supported by medically acceptable techniques and
is not inconsistent with other substantial evidence in the record, the treating physician’s opinion
is given controlling weight. Id.; see also 20 C.F.R. § 404.1527(d)(2). A treating doctor’s opinion
that is not contradicted by the opinion of another physician can be rejected only for “clear and
convincing” reasons. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). If a
treating doctor’s opinion is contradicted by the opinion of another physician, the ALJ must still
provide “specific and legitimate reasons” for discrediting the treating doctor’s opinion. Id.
Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance
on a claimant’s discredited subjective complaints, inconsistency with medical records,
inconsistency with a claimant’s testimony, inconsistency with a claimant’s daily activities, or
that the opinion is brief, conclusory, and inadequately supported by clinical findings. Bray, 554
F.3d at 1228; Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, 53 F.3d
at 1042-43. An ALJ errs by rejecting or assigning minimal weight to a medical opinion “while
doing nothing more than ignoring it, asserting without explanation that another medical opinion
is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive
basis” for the ALJ’s conclusion. Garrison¸ 759 F.3d at 1013.
“An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Garrison, 759 F.3d at 1012 (quoting Reddick v. Chater, 157
F.3d 715, 725 (9th Cir. 1998)). In other words, “[t]he ALJ must do more than offer his
conclusions. He must set forth his own interpretations and explain why they, rather than the
doctors’, are correct.” Reddick, 157 F.3d at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421-22

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(9th Cir. 1988)). “[T]he opinion of a non-examining medical advisor cannot by itself constitute
substantial evidence that justifies the rejection of the opinion of an examining or treating
physician.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citations
omitted); but see id. at 600 (opinions of non-treating or nonexamining physicians may serve as
substantial evidence when the opinions are consistent with independent clinical findings or other
evidence in the record).
1. Dr. Devarajan
Plaintiff first contends that the ALJ erred in discounting the opinions of Sumathi
Devarajan, M.D., who has been Plaintiff’s primary treating physician since 2004. AR 312;
AR 372. Dr. Devarajan provided two opinions regarding Plaintiff’s functioning. The first,
from 2012, listed Plaintiff’s diagnoses and opined simply that Plaintiff “will not be able to
participate in any kind of activity which will involve her hand and foot joints.” AR. 647.
Dr. Devarajan prepared a more detailed opinion at the request of Plaintiff’s counsel in 2015,
which combined check-box assessments and written notes. AR 664-68. The ALJ rejected
the 2012 opinion as conclusory and because the ALJ found that it conflicted with the level of
functioning demonstrated by Plaintiff’s daily activities, as detailed in a function report that
Plaintiff submitted in 2011. AR 27. The ALJ rejected the 2015 opinion “for the same reasons.”
Id.
Non-examining state agency physicians Drs. Martin Kehrli and Lloyd H. Wiggins both
opined that Plaintiff’s physical impairments were non-severe. AR 93 (opinion of Dr. Kehrli);
AR 81 (opinion of Dr. Wiggins). Because these opinions conflict with the 2012 and 2015
opinions of Dr. Devarajan, the ALJ was required to provide specific, legitimate reasons with
substantial evidence to support his rejections of Dr. Devarajan’s opinions. Specifically, the ALJ

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needed to “set[] out a detailed and thorough summary of the facts and conflicting clinical
evidence, stat[e] his interpretation thereof, and mak[e] findings. Reddick, 157 F.3d at 725.
a. Dr. Devarajan’s 2012 Opinion
As noted above, the ALJ rejected the 2012 opinion of Dr. Devarajan because it was
conclusory and conflicted with the level of daily activity described in Plaintiff’s 2011 function
report. An ALJ “need not accept the opinion of any physician, including a treating physician, if
that opinion is brief, conclusory, and inadequately supported by clinical findings. Bray, 554
F.3d 1228. Dr. Devarajan’s 2012 opinion contained only one sentence, which suggested that
Plaintiff cannot use her hands or feet at all. This is an incredibly short medical opinion, and the
medical evidence in the record at that time did not suggest that Plaintiff suffered complete
impairment of her hands and feet. See, e.g., AR 315 (reporting in 2012 that Plaintiff can’t move
“as quick” or grab things “the same” as in 2011). Because Dr. Devarajan’s 2012 opinion was
brief, conclusory, and inadequately supported by clinical findings, the ALJ identified a specific,
legitimate reason to reject its opined limitations. Because the ALJ provided at least one specific,
legitimate reason, the Court need not decide whether the 2012 opinion was inconsistent with
Plaintiff’s 2011 function report.
b. Dr. Devarajan’s 2015 Opinion
Although the ALJ properly rejected the 2012 opinion for being brief, conclusory, and
inadequately supported by clinical findings, the same reasoning does not necessarily support his
decision to reject the 2015 opinion. The ALJ rejected the 2015 opinion for “the same reasons” as
the 2012 opinion, meaning that the ALJ determined that the 2015 opinion was also conclusory
and inconsistent with Plaintiff’s daily living activities. AR 27.
The Court begins with the ALJ’s first reason: that the 2015 opinion was brief and
conclusory. Whereas the 2012 opinion offered only diagnoses and one unsupported, conclusory
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sentence, the 2015 opinion provided a more detailed evaluation of Plaintiff’s limitations.
Although the 2015 opinion utilized a check-box form with short-answer comments, a check-box
form “based on significant experience . . . and supported by numerous records . . . [is] entitled to
weight that an otherwise unsupported and unexplained check-box form would not merit.”
Garrison, 759 F.3d at 1013. Dr. Devarajan’s check-box opinion reflects nearly a decade of
treatment history. And although Plaintiff’s counsel provided the form, “the mere fact that a
medical report is provided at the request of counsel or, more broadly, the purpose for which an
opinion is provided, is not a legitimate basis for evaluating the reliability of the report.”
Reddick, 157 F.3d at 726. Thus, unlike the 2012 opinion, the 2015 opinion was not brief,
conclusory, or unsupported by medical evidence, and the ALJ could not properly reject the 2015
opinion for this reason.
The only remaining basis that the ALJ gave to reject the 2015 opinion was its
inconsistency with Plaintiff’s daily living activities. This kind of inconsistency can serve as a
specific, legitimate reason to reject a doctor’s opinion. Ghanim v. Colvin, 763 F.3d 1154, 1162
(9th Cir. 2014). In support of this conclusion, however, the ALJ referred only to his findings
rejecting the 2012 opinion. AR 27. These findings used Plaintiff’s 2011 function report as their
benchmark for Plaintiff’s daily activity level. AR 27. Inconsistences between a 2011 function
report and a 2015 opinion perhaps could show that the 2015 opinion is unreliable, but the same
inconsistences could also reflect worsening impairments during the intervening four years, with
the later opinion arising from more recent observations.
Indeed, the record in this case indicates that Plaintiff’s limitations may have worsened in
the years after she submitted the 2011 function report. Plaintiff’s additional filings from 2012
detail her worsening impairments. In these reports, Plaintiff stated that she had to wear braces on

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both hands daily, AR 311, which caused her to “not only not work, but now cut out activities
around the house and outside the home.” Id. Plaintiff also reported that it took her one and onehalf hour to get ready in the morning because of her slowed movement, decreased ability to hold
objects, and constant pain in her hands and feet. AR 315. Plaintiff also noted that “I can’t cook
and clean [or] care for my grandchildren because I’m not able to use my hands [or] stand on my
foot; the doctors required me to not do any activities using my hand or foot.” AR 316. Finally,
Plaintiff clarified that her hand and foot impairments had worsened, and as of 2012 prevented her
from either working or completing household activities to the degree previously reported.
AR 317.
Medical evidence of Plaintiff’s decline in functioning after 2011 is admittedly sparse.
The relative lack of treatment records from 2011 to 2015 may be attributable to Plaintiff’s
reported changes in health insurance coverage around 2012. AR 317. Nevertheless, in 2014,
Plaintiff reported that her foot impairments were similar to those in 2012, if not worse. AR 662.
The same year, Plaintiff reported that she had experienced hand pain “on and off” in the past four
to five years, but in the last year her left hand had worsened, “cause[ing] constant cramps and
swelling.” AR 671.
Viewed together, record evidence suggests a decline in Plaintiff’s functioning after she
submitted the 2011 function report. This decline offers a plausible alternative explanation for the
inconsistencies that the ALJ used to discredit Dr. Devarajan’s 2015 opinion. The Commissioner
argues that “[w]here evidence is susceptible to more than one rational interpretation, it is the
ALJ’s conclusion that must be upheld.” Burch, 400 F.3d at 679. The Commissioner is correct
that, in general, the ALJ’s conclusions based on an ambiguous record are entitled to deference.
The Court would defer ALJ in this case if he had reached his conclusions by “setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence . . . and making
findings.” Reddick, 157 F.3d at 725. The ALJ was required to review the entire record,
summarize this conflicting evidence, and “set forth his own interpretations and explain why they,
rather than the doctors’, are correct.” Id. The ALJ failed to fulfill these obligations. As noted
above, the record contains ample evidence to suggest that the 2015 opinion reflected Plaintiff’s
declining functioning—evidence that conflicts with the ALJ’s conclusions. The ALJ failed
adequately to reconcile this conflicting evidence, and thus did not provide specific, legitimate
reasoning with substantial supporting evidence to reject Dr. Devarajan’s 2015 opinion.
The ALJ thus erred in rejecting Dr. Devarajan’s 2015 opinion. This error was not
harmless and necessitates remand because the 2015 opinion contained limitations more severe
than the ALJ included in his RFC. This supports the inference that, but for the ALJ’s rejection of
the 2015 opinion, Plaintiff’s RFC may have been more restricted. On remand, the ALJ should
first review the entire record to determine Plaintiff’s more recent levels of daily activity, rather
than relying on the 2011 function report alone. If the ALJ still concludes that Dr. Devarajan’s
opinion from 2015 is inconsistent with Plaintiff’s daily living activities, the ALJ must explain in
why the 2015 opinion does not accurately reflect Plaintiff’s decline in functioning.
When considering whether Plaintiff’s functioning declined over time, the ALJ may find
that Plaintiff’s daily activities in 2011 show that she was not disabled at that time, but that
Plaintiff became disabled on a later date. The fact that Plaintiff alleges she became disabled on
January 15, 2004, and then alleged in her 2015 hearing that her functioning began to further
decline in late 2011, complicates this determination. Four year passed between Plaintiff’s 2011
function report and her 2015 testimony, however, and she may not have accurately recalled the
timeline of her worsening limitations. Given the conflict between Plaintiff’s alleged onset date

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and the date when her impairments appear to worsen in the record, the ALJ may need to
determine whether Plaintiff became disabled on a later date than alleged. While “[t]he starting
point in determining the date of onset of disability is the individual’s statement as to when
disability began,” if “the medical or work evidence is not consistent with the allegation,
additional development may be needed to reconcile the discrepancy. . . . [T]he established onset
date must be fixed based on the facts and can never be inconsistent with the medical evidence of
record.” SSR 83-20, 1983 WL 31249 (January 1, 1983); see, e.g., Rustamova v. Colvin, 111 F.
Supp. 3d 1156, 1160 (D. Or. 2015) (noting that the ALJ found plaintiff disabled beginning
in 2011, rather than in 2004 as alleged).
2. Dr. Seuferling
Chris Seuferling, DPM, began treating Plaintiff as her podiatrist in December 2011.
AR 745. On a check-box form from Plaintiff’s counsel, identical to the form used for
Dr. Devarajan’s 2015 opinion, Dr. Seuferling opined in 2015 that Plaintiff had a range of
limitations. AR 745-49. These opined limitations were generally more severe than those that the
ALJ incorporated into Plaintiff’s RFC. Plaintiff argues that the ALJ lacked a specific, legitimate
reason with substantial evidence to reject the opinion of Dr. Seuferling.
The ALJ gave little weight to the opinion of Dr. Seuferling “for the same reasons” that
the ALJ gave little weight to Dr. Devarajan’s opinions. AR 27. Dr. Seuferling’s opinion that
Plaintiff could only walk one hour per day was inconsistent, the ALJ concluded, with Plaintiff’s
activities of daily living, as described in the 2011 function report. Thus, the ALJ appears to have
rejected Dr. Seuferling’s opinion as (1) brief, conclusory, and unsupported by medical evidence
and (2) inconsistent with Plaintiff’s activities of daily living, as shown on her 2011 function
report.

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Having already found this reasoning flawed with respect to Dr. Devarajan’s 2015
opinion, the Court finds the same reasoning similarly flawed here. Dr. Seuferling’s opinion was
on the same form as Dr. Devarajan’s 2015 opinion and reflected a similarly lengthy treatment
relationship; Dr. Seuferling’s opinion was neither brief nor conclusory. Furthermore, the ALJ has
again compared a four-year-old description of Plaintiff’s daily functioning with a recent medical
opinion and, finding that the two were at odds, rejected the medical opinion instead of
considering the entire record to determine whether Plaintiff’s daily functioning had changed in
the interim. As explained above, the ALJ erred in doing so. On remand, the ALJ should review
the medical record, including Plaintiff’s updated function reports, to determine whether
Dr. Seuferling’s opinion is inconsistent with Plaintiff’s daily functioning at or near the time that
he gave the opinion.
C. Step Three Listings
At step three, the ALJ must determine whether one or more of a claimant’s severe
impairments “meets or equals” one of the presumptively disabling impairments listed in the
Social Security Act regulations. Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013); see 20
C.F.R. § 416.926 (describing when a claimant’s impairments are medically equivalent to a listed
impairment). The “[l]isted impairments are purposefully set at a high level of severity because
‘the listings were designed to operate as a presumption of disability that makes further inquiry
unnecessary.’” Kennedy, 738 F.3d at 1176 (quoting Sullivan v. Zebley, 493 U.S. 521, 532,
(1990)).
The ALJ determined at step three that none of Plaintiff’s impairments meet or equal the
listed impairments. AR 24. To reach this conclusion, the ALJ gave “particular attention” to
Listing 1.02, major dysfunction of a joint, 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, and Plaintiff
does not argue that any other listing should apply. The ALJ determined that available medical
PAGE 16 – OPINION AND ORDER

evidence did not demonstrate that Plaintiff’s impairments met the criteria for Listing 1.02. Id.
Plaintiff disagrees, citing an opinion from her treating podiatrist, Dr. Seuferling, that Plaintiff’s
foot impairments meet the criteria for Listing 1.02. AR 747.
As explained above, the ALJ should reevaluate on remand whether to reject the opinion
of Dr. Seuferling. Even if, however, the ALJ decides on remand to credit to Dr. Seuferling’s
opinion with respect to Plaintiff’s limitations in general, the record does not support
Dr. Seuferling’s conclusion that Plaintiff meets or equals Listing 1.02. The listing has five
criteria: (1) gross anatomical deformity, (2) chronic joint pain and stiffness with signs of limited
motion in the affected joint(s), (3) findings on appropriate medically acceptable imaging of joint
space narrowing, bony destruction, or ankyloses in the affected joint(s), and (4) involvement of
one major peripheral weight-bearing joint (i.e. hip, knee, or ankle) that (5) results in an inability
to ambulate effectively. 20 C.F.R. Pt. 404, Subpt. P, App’x 1, Listing 1.02. Inability to ambulate
effectively is defined as follows:
(1) Definition. Inability to ambulate effectively means an extreme
limitation of the ability to walk; i.e., an impairment(s) that
interferes very seriously with the individual’s ability to
independently initiate, sustain, or complete activities. Ineffective
ambulation is defined generally as having insufficient lower
extremity functioning (see 1.00J) to permit independent
ambulation without the use of a hand-held assistive device(s) that
limits the functioning of both upper extremities. (Listing 1.05C is
an exception to this general definition because the individual has
the use of only one upper extremity due to amputation of a hand.)
(2) To ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient distance to
be able to carry out activities of daily living. They must have the
ability to travel without companion assistance to and from a place
of employment or school. Therefore, examples of ineffective
ambulation include, but are not limited to, the inability to walk
without the use of a walker, two crutches or two canes, the
inability to walk a block at a reasonable pace on rough or uneven
surfaces, the inability to use standard public transportation, the
inability to carry out routine ambulatory activities, such as
PAGE 17 – OPINION AND ORDER

shopping and banking, and the inability to climb a few steps at a
reasonable pace with the use of a single hand rail. The ability to
walk independently about one’s home without the use of assistive
devices does not, in and of itself, constitute effective ambulation.
20 C.F.R. Pt. 404, Subpt. P, App’x 1, Listing 1.00(B)(2)(b) (emphasis added).
The medical record indicates that Plaintiff can walk at reasonable pace sufficient for
activities of daily living. For example, in 2015, Dr. Devarajan opined in that Plaintiff could stand
or walk up to 30 minutes, AR 665, and Dr. Seuferling opined that that Plaintiff could stand or
walk for one-to-two hours. AR 746. While these opinions may indicate limitations that could
impact Plaintiff’s ability to work, they at least show that Plaintiff can walk well enough to
accomplish daily living activities. This meets the minimum standard for walking ability under
Listing 1.00(b)(2)(B)(2). Because Plaintiff’s walking ability meets this minimum standard, her
impairments have not “result[ed] in an inability to ambulate effectively,” as those terms are
defined. Accordingly, Plaintiff’s impairments do not meet or equal Listing 1.02, and the ALJ did
not err in reaching this conclusion.
D. Plaintiff’s Symptom Testimony
There is a two-step process for evaluating a claimant’s testimony about the severity and
limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).
“First, the ALJ must determine whether the claimant has presented objective medical evidence of
an underlying impairment ‘which could reasonably be expected to produce the pain or other
symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting
Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant
need not show that her impairment could reasonably be expected to cause the severity of the
symptom she has alleged; she need only show that it could reasonably have caused some degree
of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
PAGE 18 – OPINION AND ORDER

“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
The ALJ found first that Plaintiff’s impairments could reasonably be expected to produce
some the symptoms that Plaintiff described. AR 25. Second, however, the ALJ determined that
Plaintiff’s testimony concerning the intensity, persistence, and limiting effects of her symptoms
was not entirely credible. Id. The ALJ gave three reasons to discredit Plaintiff’s testimony:
(1) inconsistency with medical evidence; (2) discrepancies in Plaintiff’s testimony; and (3) nondisability barriers to employment. AR. 25-26. Plaintiff responds that the ALJ conducted an
improper credibility evaluation that ignored medical evidence, cherry-picked from the record,
and relied on an erroneous understanding of Plaintiff’s daily functioning. For the reasons
described below, the ALJ erred in evaluating the Plaintiff’s symptom testimony.
1. Inconsistencies with Medical Evidence
The ALJ first found that medical evidence in the record did not support the severity of
claimant’s alleged symptom. Consistency with objective medical evidence is a relevant factor for
evaluating a plaintiff’s subjective symptom testimony, see Connett v. Barnhart, 340 F.3d 871,
874 (9th Cir. 2003), but “the Commissioner may not discredit the claimant’s testimony as to the
severity of symptoms merely because they are unsupported by objective medical evidence.”
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Reddick, 157 F.3d at 722. Regardless, “the treatment records must be viewed in light of the
overall diagnostic record” rather than cherry-picked for support. See Ghanim, 763 F.3d at 1164
(9th Cir. 2014).
The ALJ cited first to several treatment notes, which were almost exclusively from 2011.
For example, the ALJ refers to a wrist and finger mobility examination from February 7, 2011,
which showed full range of motion, see AR 519, and a visit to Dr. Seuferling on December 2,
2011, which showed mild degenerative joint disease in Plaintiff’s left foot. AR 596. The ALJ
provided only minimal review of later medical records, however, and appears to have selectively
cited records inconsistent with Plaintiff’s testimony while omitting supporting evidence.
For example, when citing to an August 2012 exam, the ALJ noted only that mild swelling
was detected around the left thumb. The ALJ, however, omitted the examining physician’s notes
of general tenderness on palpation and significant tenderness with movement. AR 604. The ALJ
used a treatment note from October 2014, in which Plaintiff described her hand pain as “on and
off” beginning in 2009 or 2010, to discredit Plaintiff’s 2015 hearing testimony that her pain was
constant. The ALJ omitted the next sentence of the treatment note, which stated that Plaintiff’s
hand pain had become “worse” in the last year and caused “constant cramps and swelling.”
AR 671.
Similarly, the ALJ reviewed at least one treatment note from 2015, but took a small part
of a physical exam out of context to conclude that Plaintiff was, in a general sense, “not in any
apparent distress.” See AR 26 (citing AR 751). The ALJ also discussed from that same treatment
note that the physician diagnosed merely mild hand and wrist degenerative joint disease. AR 26.
The ALJ, however, failed to mention the physician’s diagnosis, in the same treatment note, of
moderate degenerative disk disease in the carpometacarpal joint, as well as examination notes

PAGE 20 – OPINION AND ORDER

describing Plaintiff’s “painful [carpometacarpal] joint” with “prominent bone spurs.” AR 751.
Finally, the ALJ cited a record from 2011 that noted that Plaintiff’s foot and toe joints had intact
muscular strength and displayed no crepitus, AR 25 (citing AR 422), but failed to discuss a 2014
report from Dr. Seuferling noting pain on palpation, limited range of motion, pain on movement,
and crepitus in the same joints. See AR 662.
As these examples show, the ALJ’s decision selectively cited treatment notes that
supported his conclusion, without discussing contrary evidence, or providing reasons for
disregarding the contrary evidence. The ALJ thus did not provide substantial evidence to support
his conclusion. On remand, the ALJ should “weigh[] both the evidence that supports and the
evidence that detracts” from his conclusions, and make a decision based on the entire record. See
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).
2. Discrepancies in Plaintiff’s Testimony
The ALJ next concluded that Plaintiff’s general lack of candor discredited her symptom
testimony. Under SSR 96-7p, 1996 WL 374186 (June 2, 1996), which governs decisions
rendered before March 16, 2016, an “ALJ may consider . . . ordinary techniques of credibility
evaluation, such as a claimant’s reputation for lying, prior inconsistent statements concerning
symptoms, and other testimony by the claimant that appears less than candid.” See Smolen, 80
F.3d at 1284. “A single discrepancy fails, however, to justify the wholesale dismissal of a
claimant’s testimony.” Popa v. Berryhill, 872 F.3d 901, 906-07 (9th Cir. 2017) (discussing
inconsistency between Popa’s testimony that she could not drive because her license was
suspended and her comment to a treating physician that she had driven).
The ALJ pointed to two specific inconsistences. First, Plaintiff testified in 2015 that her
hand cramps made her handwriting messy, but the ALJ concluded that her 2011 function report
was very legible. AR 26. As an initial matter, the relative messiness of handwriting is subjective,
PAGE 21 – OPINION AND ORDER

and Plaintiff’s 2011 handwriting is legible but not neat. Thus, it is unclear that Plaintiff’s 2015
testimony was inconsistent. Even if it were, this minor inconsistency would be between 2011
evidence and 2015 testimony. The evidence as a whole, as discussed above, suggests that
Plaintiff’s hand functioning had declined during the intervening years, which also would render
her testimony not inconsistent.
The second inconsistency involves Plaintiff’s testimony regarding her history of drug and
alcohol use. Id. In her testimony, Plaintiff concedes that she used crack cocaine, alcohol, and
marijuana heavily in the past, but “stopped doing everything” in 2005. As the ALJ noted, AR 26,
Plaintiff told a psychological evaluator as recently as 2010 that she had “not stopped drinking all
the way, and still smoke[ed] pot almost every day.” AR 380. Reading Plaintiff’s 2015 testimony
in context, it is unclear whether she meant that she literally ceased consuming all drugs and
alcohol in 2005, or merely that her severe substance abuse ended around that time. In any case,
the ALJ is correct that Plaintiff did not fully disclose in the 2015 hearing her ongoing struggle
with drug and alcohol addiction. At most, this presents the kind of “single discrepancy” found in
Popa, which fails to justify discrediting claimant’s entire symptom testimony. See Popa, 872
F.3d at 906-07. Without more, Plaintiff’s inconsistent prior statement does not provide a clear
and convincing reason, supported by substantial evidence, to discredit Plaintiff’s symptom
testimony.
3. Non-Disability Barriers to Employment
The final reason that the ALJ found Plaintiff’s testimony not credible was that Plaintiff
had a DUI conviction and a suspended license. The ALJ concluded that these facts created a
barrier to employment that was unrelated to Plaintiff’s disability. The ALJ also noted that
Plaintiff drove to a doctor’s appointment despite her suspended license, which the ALJ

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concluded was evidence that Plaintiff was increasing the risk of additional infractions and
barriers to employment.
An ALJ may reject the symptom testimony of a claimant who alleged that his or her
symptoms prevented gainful employment, but who stopped work for reasons other than the
alleged symptoms and limitations. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). The
present record, however, is distinguishable. While Plaintiff has a criminal conviction, which
could create a barrier to employment, nothing in the record suggests that Plaintiff lost her past
jobs because of her conviction. Nor does it appear that Plaintiff’s suspended license or criminal
conviction have prevented her from applying for or obtaining gainful employment after she
became unemployed. A speculative risk that Plaintiff’s behavior might, in the future, create
further barriers to employment is not a clear and convincing reason to discredit testimony about
Plaintiff’s current physical and mental impairments.
E. Lay Witness Testimony
Plaintiff next contends that the ALJ erred in rejecting the testimony of a lay witness,
Plaintiff’s mother. “In determining whether a claimant is disabled, an ALJ must consider lay
witness testimony concerning a claimant’s ability to work.” Stout v. Comm’r, 454
F.3d 1050, 1053 (9th Cir. 2006). Lay witness testimony regarding a claimant’s symptoms or how
an impairment affects her ability to work is competent evidence. Id. Thus, an ALJ may not reject
such testimony without comment. Id. “If the ALJ wishes to discount the testimony of the lay
witnesses, [the ALJ] must give reasons that are germane to each witness.” Dodrill, 12 F.3d
at 919. An ALJ errs by failing to “explain her reasons for disregarding . . . lay witness testimony,
either individually or in the aggregate.” Id. at 1115 (quoting Nguyen v. Chater, 100
F.3d 1462, 1467 (9th Cir. 1996)).

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Plaintiff’s mother, Lanita S., provided a third party function report in 2011, which
detailed Plaintiff’s impairments and daily living activities. The ALJ gave “partial weight” to this
report, but stated that the report supports the RFC. Plaintiff argues that the ALJ’s treatment of the
third-party function report was a de facto rejection without a germane reason. The Commissioner
responds that the ALJ did not reject the testimony of Lanita S.; rather, as the ALJ interpreted the
testimony, the testimony of Lanita S. was consistent with and supported the RFC. The
Commissioner further argues that, because the ALJ interpreted the testimony, the Court must
defer to the ALJ. See Magallanes, 881 F.2d at 750 (“The ALJ is responsible for determining
credibility and . . . [and] for resolving ambiguities.”); Orteza v. Shalala, 50 F.3d 748, 750 (9th
Cir. 1995) (noting that the ALJ’s resolution of ambiguity in testimony was entitled to deference).
The first question is whether the ALJ rejected the testimony of Lanita S., or simply
resolved ambiguities in her testimony and in doing so concluded that her testimony was
consistent with the RFC. In Orteza, which the Commissioner cites for support, one of the
plaintiff’s treating physicians opined that the plaintiff could perform “sedentary work.” Id. It was
unclear in Orteza whether the physician meant “sedentary work” as the terms is commonly
understood or as it is defined in 20 C.F.R. § 404.1567(a) (1994). This was a clear ambiguity, and
the ALJ’s resolution of it was entitled to deference. Id. at 750-51.
The present case is distinguishable. The ALJ did not identify or interpret ambiguous
testimony in the third-party function report, and the report contained evidence of limitations
inconsistent with the RFC. For example, the report indicated that the Plaintiff had a short
attention span, AR 294, and experienced constant foot pain. AR 293. When asked to check boxes
indicating the mental and physical attributes that Plaintiff’s disability affects, Lanita S. checked,

PAGE 24 – OPINION AND ORDER

among others, lifting, squatting, bending, reaching, and kneeling. AR 294. In the RFC, the ALJ
concluded that Plaintiff can stoop, kneel, crouch, handle, and crawl frequently.
Because Lanita S. attested to limitations that the ALJ did not include in the RFC, the ALJ
necessarily rejected the portions of Lanita S.’s third party function report that were inconsistent
with the RFC. An ALJ's may not ignore portions of lay witness testimony that contradict the
ALJ's ultimate description of a claimant's abilities in the RFC. See Stout, 454 F.3d at1054.
The ALJ did not acknowledge the implicitly rejected portions of Lanita S.’s testimony
and did not provide a germane reason for rejecting them. Accordingly, the ALJ improperly
rejected the testimony of Lanita S. On remand, the ALJ must credit or provide a germane reason
to reject part or all of Lanita S.’s testimony.
F. Step Five Analysis
In her last argument, Plaintiff contends that the ALJ erred in posing an incomplete
hypothetical to the VE at step five. The ALJ’s hypothetical to the VE must reflect all of the
claimant’s limitations, both physical and mental, that the record supports. See Valentine v.
Comm’r. of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009); Thomas v. Barnhart, 278
F.3d 947, 956 (9th Cir. 2002). “If a vocational expert’s hypothetical does not reflect all the
claimant’s limitations, then the expert’s testimony has no evidentiary value . . . .” Matthews v.
Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (citation omitted). Because the ALJ improperly
rejected the testimony of Plaintiff, her mother, and her treating physicians, limitations alleged in
those sources were left out of the ALJ’s hypothetical to the VE. As the hypothetical may change
on remand after the ALJ reevaluates the improperly considered testimony and opinions, the
Court need not decide Plaintiff’s claim of error at step five.

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G. Remand
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation
omitted). Although a court should generally remand to the agency for additional investigation or
explanation, a court has discretion to remand for immediate payment of benefits. Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the
utility of further proceedings. A court may not award benefits punitively and must conduct a
“credit-as-true” analysis on evidence that has been improperly rejected by the ALJ to determine
if a claimant is disabled under the Social Security Act. Strauss v. Comm’r of the Soc. Sec.
Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this
Court. Garrison, 759 F.3d at 999.. The court first determines whether the ALJ made a legal error
and then reviews the record as a whole to determine whether the record is fully developed, the
record is free from conflicts and ambiguities, and there is any useful purpose in further
proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Only if the record has
been fully developed and there are no outstanding issues left to be resolved does the district court
consider whether the ALJ would be required to find the claimant disabled on remand if the
improperly discredited evidence were credited as true. Id. If so, the district court can exercise its
discretion to remand for an award of benefits. Id. The district court retains flexibility, however,
and is not required to credit statements as true merely because the ALJ made a legal error. Id.
at 408.
As discussed above, the ALJ failed to provide legally sufficient reasons for discounting
the testimony of Plaintiff, her mother, and her treating physicians. The Court, however, finds that
there are remaining conflicts and ambiguities that need be resolved. Specifically, it remains
PAGE 26 – OPINION AND ORDER

unclear whether a later onset date may better reflect Plaintiff’s decline in function, and whether
later record evidence supports Plaintiff’s subjective symptom testimony or lay witness testimony.
Thus, remanding for further proceedings consistent with this opinion is more appropriate than an
award of immediate benefits.
CONCLUSION
The Commissioner’s decision that Plaintiff was not disabled is REVERSED AND
REMANDED for further proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 22nd day of January, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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