Simmons v. Commissioner Social Security Administration

Filing 30

Opinion and Order signed on 4/3/2020 by Magistrate Judge Mustafa T. Kasubhai: The Commissioner's decision denying Plaintiff's applications for DIB and SSI is REVERSED and this case is REMANDED for further proceedings consistent with this opinion and order. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

MICHAEL S.,1

Case No. 6:18-cv-01107-MK
Plaintiff,

OPINION
AND ORDER

v.
COMMISSIONER, Social Security
Administration,
Defendant.
_________________________________________
Kasubhai, United States Magistrate Judge:
Plaintiff Michael S. seeks judicial review of the final decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying his applications for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of
the Social Security Act (the “Act”). This Court has jurisdiction to review the Commissioner’s
decision pursuant to 42 U.S.C. § 405(g). All parties have consented to allow a Magistrate Judge
to enter final orders and judgment in this case in accordance with Federal Rule of Civil
Procedure 73 and 28 U.S.C. § 636(c). See (ECF No. 6). For the reasons that follow, the
Commissioner’s final decision is REVERSED and this case is REMANDED for further
proceedings.

1

In the interest of privacy, this Opinion and Order uses only the first name and last name initial of
non-government parties and their immediate family members.
Page 1 – OPINION AND ORDER

PROCEDURAL BACKGROUND
Plaintiff filed applications for DIB and SSI in May and June of 2013, alleging a disability
onset date of March 19, 2013.2 Tr. 15, 253–56. His applications were denied initially and upon
reconsideration. Tr. 92–104, 105–117, 120–33, 134–47. Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”), and a supplemental hearing3 was ultimately held on January
5, 2017. Tr. 15, 39–91, 169–70. On March 16, 2017, the ALJ issued a decision finding Plaintiff
not disabled within the meaning of the Act. Tr. 15–27. The Appeals Council denied Plaintiff’s
request for review on April 21, 2018, making the ALJ’s decision the final decision of the
Commissioner. Tr. 1–6. This appeal followed.
FACTUAL BACKGROUND
Born in 1960, Plaintiff was 52 years old on his alleged onset date. Tr. 103. He obtained a
GED and has past work experience as a poultry dresser, machine packager, and agricultural
produce sorter. Tr. 66, 82–83. He alleges disability based on schizophrenia. Tr. 284.
LEGAL STANDARD
The court must affirm the Commissioner’s decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court
must weigh “both the evidence that supports and detracts from the [Commissioner’s]

2

“Tr.” citations are to the Administrative Record. (ECF No. 14).

At the request of Plaintiff’s representative, the ALJ granted a postponement during a July 2016
hearing “to obtain a neuropsychological evaluation” of Plaintiff. Tr. 15.
3

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conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where the evidence as a
whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the
ALJ’s.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also
Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court “must uphold the
ALJ’s decision where the evidence is susceptible to more than one rational interpretation”). “[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) (quotation omitted).
The claimant has the initial burden of proof to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an
“inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected . . . to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step process for determining whether a person
is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First,
the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if
so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b).
At step two, the Commissioner determines whether the claimant has a “medically severe
impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§
404.1520(c), 416.920(c). A severe impairment is one “which significantly limits [the claimant’s]
physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) & 416.920(c).
If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner
determines whether the impairments meet or equal “one of a number of listed impairments that

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the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.;
20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if
not, the analysis proceeds. Yuckert, 482 U.S. at 141.
At this point, the Commissioner must evaluate medical and other relevant evidence to
determine the claimant’s “residual functional capacity” (“RFC”), an assessment of work-related
activities that the claimant may still perform on a regular and continuing basis, despite any
limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). At the fourth step, the Commissioner determines whether the claimant can
perform “past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If
the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden
shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must
establish that the claimant can perform other work that exists in significant numbers in the
national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the
Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
At step one, the ALJ found that Plaintiff met the insured requirements of the Act and had
not engaged in substantial gainful activity since the alleged onset date.4 Tr. 17. At step two, the
ALJ found that Plaintiff had the following severe impairments: schizophrenia; borderline
intellectual functioning; schizoaffective disorder, depressive type; and an unspecified
neurocognitive disorder. Id.

The ALJ’s decision erroneously states that Plaintiff’s alleged onset date was September 1, 2002.
Tr. 17. However, elsewhere in the decision the ALJ referred to Plaintiff’s correct alleged onset
date of March 19, 2013. See Tr. 15, 21. As such, any error was harmless.
4

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At step three, the ALJ found that Plaintiff did not have an impairment or combination
thereof that met or equaled a listed impairment. Tr. 18. The ALJ found that Plaintiff had the RFC
to perform a full range of work at all exertional levels, with the following limitations:
He can perform simple, easy to learn, routine, unskilled work with
a [Dictionary of Occupational Titles General Educational
Development] reasoning level of two or less. He cannot perform
work requiring fast-paced production quotas or strict time demands
for production. He cannot interact with the public, and he can have
only occasional interaction with coworkers and supervisors. He
needs a static work environment with few changes in work routines
and settings.
Tr. 20.
At step four, the ALJ found that Plaintiff was unable to perform any past relevant work.
Tr. 25. At step five, the ALJ found, in light of Plaintiff’s age, education, work experience, and
RFC, there were jobs that existed in significant numbers such that Plaintiff could sustain
employment despite his impairments. Tr. 25. The ALJ thus found Plaintiff was not disabled
within the meaning of the Act. Tr. 26.
DISCUSSION
Plaintiff asserts that remand is warranted for three reasons. First, he argues the ALJ was
required to find him presumptively disabled at step three. Second, Plaintiff asserts that the ALJ
erred by improperly rejecting his subjective symptom testimony. Finally, he asserts the RFC and
corresponding hypothetical to the VE failed to include all of his limitations. The Court addresses
each argument in turn.
I.

Listed Impairments
At step three, an ALJ must evaluate the relevant evidence to assess whether a claimant’s

impairments meet or equal a listed impairment. See Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir.
2001). A boilerplate finding is insufficient to support a conclusion that a claimant’s impairment

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does not do so. See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). An ALJ, however, is
only required to discuss and evaluate the evidence that supports his or her conclusion. Lewis, 236
F.3d at 513. Further, a claimant bears the burden of proving that her impairments meet or equal a
listing. See Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (“To meet a listed impairment,
a claimant must establish that he or she meets each characteristic of a listed impairment relevant
to his or her claim. To equal a listed impairment, a claimant must establish symptoms, signs and
laboratory findings at least equal in severity and duration to the characteristics of a relevant listed
impairment[.]”).
Plaintiff asserts the ALJ erred in not finding him presumptively disabled at step three
under the following Mental Disorder Listings: 12.02, Neurocognitive Disorders; 12.03,
Schizophrenia; 12.04, Affective Disorders; and 12.11, Neurodevelopment Disorders. See Pl.’s
Op. Br. 12–14; see also 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (effective Jan. 17, 2017 to March
26, 2017). To meet the Mental Disorder Listings relevant here, “a claimant must demonstrate a
combination of criteria from paragraphs A, B, and/or C.” Blake L. v. Berryhill, No. 3:17-cv01647-YY, 2019 WL 289098, at *12 (D. Or. Jan. 4, 2019), adopted, 2019 WL 281285 (D. Or.
Jan. 22, 2019). To satisfy the paragraph B criteria, a claimant’s “mental disorder must result in
‘extreme’ limitation of one, or ‘marked’ limitation of two, of the four areas of mental
functioning” that include (1) interacting with others; (2) concentrating, persisting, or maintaining
pace; (3) adapting or managing oneself; and (4) understanding, remembering, or applying
information. 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
The ALJ highlighted specific references to the record in support of his findings that
Plaintiff was markedly limited in his ability to interact with others and moderately limited in
each of the three other functional areas. Tr. 18–19. For example, in support of the ALJ’s finding

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that Plaintiff had moderate limitations in concentrating, persisting, and maintaining pace, the
ALJ cited evidence that Plaintiff was able to “care[] for his son” and complete basic chores
around the home. Tr. 18. Regarding the ALJ’s finding that Plaintiff had moderate limitations in
adapting and managing oneself, the ALJ noted that Plaintiff was able to maintain basic hygiene
and cited reports that Plaintiff was able to independently complete “tasks such as laundry” and
prepare simple meals. Tr. 368; see also Tr. 19. Finally, regarding the ALJ’s finding that Plaintiff
was moderately limited in understanding, remembering, and applying information, the ALJ
highlighted, among other records, a 2016 neuropsychological evaluation that “showed average
working memory” and Plaintiff’s ability to follow “brief verbal and written directions without
difficulty.” Tr. 18 (citing Tr. 487–91).
As such, the ALJ sufficiently discussed and evaluated the relevant evidence that
supported his conclusions. See Lewis, 236 F.3d 503 at 513. Although Plaintiff presents an
alternative interpretation of the medical evidence, the ALJ’s finding was a rational interpretation
of the record and must therefore be upheld, especially given that “[l]isted impairments are
purposefully set at a high level of severity . . . . “ Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th
Cir. 2013) (citation and quotation omitted); see also Batson v. Comm’r, 359 F.3d 1190, 1193 (9th
Cir. 2004) (“[I]f evidence exists to support more than one rational interpretation, we must defer
to the Commissioner’s decision[.]”) (internal citations omitted).
The ALJ’s step three finding is affirmed.
II.

Subjective Symptom Testimony
When a claimant has medically documented impairments that could reasonably be

expected to produce some degree of the symptoms complained of, and the record contains no
affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the

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severity of ... symptoms only by offering specific, clear and convincing reasons for doing so.”
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). A general
assertion [that] the claimant is not credible is insufficient; instead, the ALJ must “state which . . .
testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v.
Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered 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) (internal citation omitted). If the
ALJ’s finding regarding the claimant’s subjective symptom testimony is “supported by
substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).
Social Security Ruling (“SSR”) 16-3p5 provides that “subjective symptom evaluation is
not an examination of an individual’s character,” and requires that the ALJ consider all the
evidence in an individual’s record when evaluating the intensity and persistence of symptoms.
SSR 16-3p, available at 2016 WL 1119029, at *1–2. The ALJ must examine “the entire case
record, including the objective medical evidence; an individual’s statements about the intensity,
persistence, and limiting effects of symptoms; statements and other information provided by
medical sources and other persons; and any other relevant evidence in the individual’s case
record.” Id. at *4.
The Commissioner asserts the ALJ properly rejected Plaintiff’s subjective symptom
testimony because: (A) his mental health impairments were controlled with medication; (B)
Plaintiff’s activities conflicted with his testimony; and (C) the record contained a lack of

5

Effective March 28, 2016, SSR 16-3p superseded and replaced SSR 96-7p, which governed the
assessment of claimant's “credibility.” See SSR 16-3p, available at 2016 WL 1119029.
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objective medical evidence.
A.

Medication

The ALJ discounted Plaintiff’s testimony because his mental health conditions were
controlled with medication. Tr. 21. The “type, dosage, effectiveness, and side effects of any
medication” is an appropriate factor for an ALJ to consider in assessing a claimant’s subjective
symptom testimony. 20 C.F.R. § 404.1529(c)(3). Further, “[i]mpairments that can be controlled
effectively with medication are not disabling[.]” Warre v. Comm’r, 439 F.3d 1001, 1006 (9th
Cir. 2006).
Here, however, the ALJ failed to consider Plaintiff’s limited improvement in the broader
context of the record as a whole. An ALJ may not simply cherry-pick evidence to support the
conclusion that a claimant is not disabled; rather, the ALJ must consider the evidence as a whole.
See Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (“[T]he ALJ selectively relied
on some entries in [the claimant’s] records . . . and ignored the many others that indicated
continued, severe impairment.”); see also Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014)
(noting the cyclical nature of mental health diagnoses and instructing caution in drawing
inferences based upon reports of improvements during treatment).
For example, the ALJ highlighted a November 2012 treatment note—five months before
Plaintiff’s alleged onset date—where Plaintiff reported his medication “seeme[d] to be alright.”
Tr. 353. However, at the same appointment he presented with a labile mood and flat affect. Id.
Moreover, the Commissioner’s further reliance on reports that Plaintiff’s “auditory
hallucinations were not bothersome,” and that Plaintiff received limited relief at times from his
medications, fails to establish that Plaintiff’s mental health impairments were controlled with
medication. Def.’s Br. 5–6 (citing Tr. 379, 425, 494, 512).

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Indeed, an independent review of treatment notes from between November 2013 and July
2016, reveals that Plaintiff consistently presented with significant mental health related
complaints. See, e.g., Tr. 397 (reporting that Plaintiff was “not sure if [his medication] was
working like it should” at an emergency counseling session held because he was in “crisis”); Tr.
385 (reporting increasing problems with focus and concentration and presenting with dysthymic
mood and mildly impaired judgment and insight); Tr. 382 (“He reported he sometimes hears
voices. He reported he thinks people are watching him or out to get him.”); Tr. 384 (reporting
“hearing voices, thinking people are watching him, social anxiety, depressed mood, and
irritability interfere with daily functioning and prevent him from attending social activities”); Tr.
470–71 (reporting “increased problems with paranoia” and agitation and requesting change in
medication delivery); Tr. 462 (reporting increase in symptoms); Tr. 456 (requesting medication
adjustment and reporting inability to “remember what [Plaintiff was] doing” and confusion); Tr.
443 (reporting “difficulty concentrating, paranoia, hearing voices, delusions, social anxiety,
irritability, and anger”); Tr. 431–32 (reporting impaired memory, deficits in intellectual
functioning, and “[p]overty of content” in thought content and processes); Tr. 505 (“He is not
having any psychosis at present however continues to be functionally impaired to the point that I
do not see him as able to maintain employment due to issues of focus and concentration.”).
Accordingly, Plaintiff’s response to his medication was not a clear and convincing reason
to reject his subjective symptom testimony related to his mental health impairments. See
Garrison, 759 F.3d at 1018 (“While ALJs obviously must rely on examples to show why they do
not believe that a claimant is credible, the data points they choose must in fact constitute
examples of a broader development to satisfy the applicable ‘clear and convincing’ standard.”)

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(emphasis in original).6
B.

Activities of Daily Living

An ALJ may use activities of daily living to discredit a claimant’s testimony where the
activities: (1) meet the threshold for transferable work skills; or (2) contradict the claimant’s
testimony. Orn, 495 F.3d at 639. A claimant, however, need not be utterly incapacitated to
receive disability benefits, and sporadic completion of minimal activities is insufficient to
support a negative credibility finding. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001);
see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (requiring the level of activity to
be inconsistent with the claimant’s alleged limitations to be relevant to his or her credibility).
The Commissioner contends the ALJ properly rejected Plaintiff’s testimony, arguing his
“activities were significant, and they were normal.” Def.’s Br. 7. The Commissioner asserts
Plaintiff’s ability to care for his “son without difficulty,” shop for groceries, cook meals, do
yardwork, care for animals, launder clothes, go on walks, talk to his neighbor, watch television,
play video games, and attend a wedding “for fun” undermined Plaintiff’s testimony relating to
his mental health impairments. Id. The Commissioner, however, overstates many of Plaintiff’s
limited activities and fails to identify any meaningful inconsistencies.
For example, at an appointment where Plaintiff complained of “focus and concentration”
issues, his wife expressed concern that “he [was] not supervising their son quite as well as he

To the extent the ALJ additionally sought to impugn Plaintiff’s testimony based on an
“admission” that “he had not been taking his medication” or had a “gap in treatment of almost a
year,” the Ninth Circuit has explained that an ALJ commits reversible error in discrediting a
claimant for failing to take medications, instructing that “it is a questionable practice to chastise
one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” See
Garrison, 759 F.3d at 1018 n.24 (9th Cir. 2014) (citation omitted). Accordingly, these were not
clear and convincing reasons to reject Plaintiff’s testimony.
6

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should . . . .” Tr. 385. Indeed, Plaintiff expressly sought treatment in September 2013 based on
“increasing agitation toward his wife and towards his 18[-month old] son.” Tr. 355. He explained
that he was afraid of hurting his son when his son “thr[ew] a fit,” to the point where Plaintiff had
to set “him down and leave[] the room.” Id.
Although Plaintiff testified that he shopped for groceries, he qualified his response
explaining that he was always accompanied by his wife. Tr. 79. Plaintiff’s meal preparation
consisted largely of simple meals such as “fr[ied] eggs” and frozen fish sticks he placed in the
oven. Tr. 70–78. As for Plaintiff’s ability to complete yardwork and care for animals, the ALJ’s
decision fails to explain how those activities conflict with his testimony. See Smolen, 80 F.3d at
1284 (instructing that to properly discredit a claimant on the basis that his activities contradict
his testimony, the “ALJ must state specifically which symptom testimony is not credible and
what facts in the record lead to that conclusion”) (citation omitted). The ALJ failed to do so here.
Finally, even assuming Plaintiff is capable of the modest activities cited by the
Commissioner and ALJ, the Ninth Circuit has consistently held such a minimal level of activity
is not sufficient to reject a claimant’s testimony. See Vertigan, 260 F.3d at 1050 (“This Court has
repeatedly asserted that the mere fact that a Plaintiff has carried on certain daily activities, such
as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract
from her credibility as to her overall disability.”) (quoting Fair v. Bowen, 885 F.2d 597,603 (9th
Cir. 1989)). The Commissioner’s reliance on Plaintiff’s limited domestic activities was therefore
insufficient to reject his testimony.
C.

Objective Evidence

The Commissioner argues the ALJ discounted Plaintiff’s testimony because the medical
evidence did not contain sufficient objective findings. However, while an ALJ may consider the

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lack of objective evidence in some circumstances, it may not be the sole basis for rejecting a
claimant’s subjective symptom testimony. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.
2001). Here, because the ALJ failed to supply at least one additional rationale to justify the
rejection of Plaintiff’s subjective symptom testimony, a lack of objective evidence cannot form
the sole basis to reject his testimony. See Reddick, 157 F.3d at 722–23 (“[T]he Commissioner
may not discredit the claimant’s testimony as to the severity of symptoms merely because they
are unsupported by objective medical evidence.”).
In sum, the ALJ failed to supply clear and convincing reasons for rejecting Plaintiff’s
subjective symptom testimony. The ALJ is reversed as to this issue.
III.

RFC Formulation
The RFC is the most a person can do despite her physical or mental impairments. 20

C.F.R. §§ 404.1545, 416.945. The RFC assessment must be “based on all of the relevant medical
and other evidence,” including the claimant’s testimony as well as that of lay witnesses. 20
C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Put differently, the “RFC assessment must contain a
thorough discussion and analysis of the objective medical and other evidence, including the
individual’s complaints of pain and other symptoms.” Laborin v. Berryhill, 867 F.3d 1151, 1153
(9th Cir. 2017) (emphasis in original) (bracketing and quotation marks omitted) (citing SSR 968p, available at 1996 WL 374184).
Plaintiff asserts that the ALJ’s RFC formulation failed to include limitations that were
supported by substantial evidence in the record. The Court agrees.
The ALJ failed to supply legally sufficient reasons for rejecting Plaintiff’s subjective
symptom testimony. The limitations described in such testimony were required to be included in
Plaintiff’s RFC. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (“[T]he ALJ

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failed to provide clear and convincing reasons for finding [the claimant’s] alleged pain and
symptoms not credible, and therefore was required to include these limitations in his assessment
of [the claimant’s] RFC.”). As such, the ALJ’s RFC assessment failed to account for all of the
relevant evidence in the record and the ALJ’s corresponding steps four and five determinations
were not supported by substantial evidence.
The ALJ’s RFC formulation must therefore be reversed and this case must be remanded.
IV.

Remedy
The decision whether to remand for further proceedings or for the immediate payment of

benefits lies within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1176–78 (9th
Cir. 2000). The court first determines whether the ALJ committed legal error; and if so, the court
must review the record and decide whether it is “fully developed, is free from conflicts and
ambiguities, and all essential factual matters have been resolved.” Dominguez v. Colvin, 808
F.3d 403, 407 (9th Cir. 2015) (internal citation omitted). Second, the court considers whether
further administrative proceedings would serve a “useful purpose.” Id. at 407 (internal citation
omitted). Third, if the court finds the record is fully developed and further administrative
proceedings would not be useful, the court may credit the improperly discredited evidence as
true and determine whether the ALJ would find the claimant disabled in light of this evidence.
Id. (internal citation omitted). If so, the court may remand the case for an award of benefits,
although the court ultimately retains “discretion in determining the appropriate remedy.” Id. at
407–08 (internal citation omitted).
Here, the Court concludes the ALJ committed legal error in failing to provide legally
sufficient reasons for rejecting Plaintiff’s subjective symptom testimony. The Court finds,
however, that remanding for further proceedings would serve a useful purpose. Specifically, as

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noted by the Commissioner, the record does not contain a medical opinion “as to Plaintiff’s
mental functional limitations.” Def.’s Br. 13. The Court therefore finds the record would benefit
from a consultative examination to assess the extent Plaintiff’s mental limitations impact his
ability to work.
Accordingly, the Court remands this case on an open record to: (1) obtain a consultative
examination assessing Plaintiff’s functional limitations as they relate to his mental health
impairments; (2) conduct a de novo review of the medical opinion evidence in light of the
consultative examiner’s opinion; (3) reassess Plaintiff’s subjective symptom testimony; and (4)
conduct any further necessary proceedings.
CONCLUSION
For these reasons, the Commissioner’s decision denying Plaintiff’s applications for DIB
and SSI is REVERSED and this case is REMANDED for further proceedings consistent with
this opinion and order.

IT IS SO ORDERED.
DATED this 3rd day of April 2020.

s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge

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