Rutz v. Commissioner of Social Security

Filing 20

ORDER GRANTING, IN PART, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF 15 ) AND REMANDING FOR ADDITIONAL PROCEEDINGS and denying Defendant's Motion for Summary Judgment (ECF 19 ). FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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JOHN RUTZ,

No. 1:16-CV-3207-JTR

Plaintiff,

ORDER GRANTING, IN PART,
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT AND
REMANDING FOR ADDITIONAL
PROCEEDINGS

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v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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BEFORE THE COURT are cross-motions for summary judgment. ECF

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No. 15, 19. Attorney D. James Tree represents John Rutz (Plaintiff); Special

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Assistant United States Attorney Nancy A. Mishalanie represents the

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Commissioner of Social Security (Defendant). The parties have consented to

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proceed before a magistrate judge. ECF No. 7. After reviewing the administrative

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record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s

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Motion for Summary Judgment; DENIES Defendant’s Motion for Summary

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Judgment; and REMANDS the matter to the Commissioner for additional

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proceedings pursuant to 42 U.S.C. § 405(g).

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JURISDICTION
Plaintiff filed applications for Disability Insurance Benefits and

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Supplemental Security Income on May 17, 2013, alleging disability since

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September 30, 2011, due to Myopathy, Hypotonia, Depression, ADHD, and Bi-

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1

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Polar Disorder. Tr. 178, 184, 236. Plaintiff amended his alleged disability onset

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date to April 9, 2013, at the time of the administrative hearing. Tr. 39. The

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applications were denied initially and upon reconsideration. Administrative Law

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Judge (ALJ) M. J. Adams held a hearing on May 5, 2015, Tr. 36-60, and issued an

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unfavorable decision on June 9, 2015, Tr. 18-28. The Appeals Council denied

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Plaintiff’s request for review on September 12, 2016. Tr. 1-6. The ALJ’s June

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2015 decision thus became the final decision of the Commissioner, which is

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appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this

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action for judicial review on November 14, 2016. ECF No. 1, 4.

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STATEMENT OF FACTS
Plaintiff was born on February 24, 1980, and was 33 years old on the alleged

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onset date, April 9, 2013. Tr. 39. Plaintiff completed high school and one year of

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college. Tr. 237. He returned to college in September 2013 and, at the time of the

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administrative hearing, was continuing to work on his associate’s degree in

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business management with a focus on marketing. Tr. 41. He was taking a normal

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load of college classes (15 credits), doing a majority of his coursework online

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while spending six hours a week on campus, and was halfway through the process

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of obtaining his degree. Tr. 41-42, 46-48.

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Plaintiff’s past work consists of jobs as a security guard, a dispatcher and a

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certified nurse’s assistant. Tr. 43-45, 55-56, 237. Plaintiff’s disability report

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indicates he stopped working on November 15, 2011, because of his conditions.

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Tr. 236. Plaintiff testified the main thing keeping him from being able to work is

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his social anxiety. Tr. 47. He explained he lacks the ability to relate to and get

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along with people. Id. Plaintiff additionally stated that panic attacks are an

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everyday issue. Tr. 49. He indicated he experiences overwhelming panic attacks

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three or four times a week. Id. With respect to physical issues, Plaintiff testified

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he has low muscle tone and could only lift 20 pounds, has difficulty with fine

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motor skills, and could stand no longer than 30 minutes at a time. Tr. 50.

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2

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STANDARD OF REVIEW
The ALJ is responsible for determining credibility, resolving conflicts in

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medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,

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1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with

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deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel,

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201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed

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only if it is not supported by substantial evidence or if it is based on legal error.

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Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is

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defined as being more than a mere scintilla, but less than a preponderance. Id. at

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1098. Put another way, substantial evidence is such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion. Richardson v.

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Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one

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rational interpretation, the Court may not substitute its judgment for that of the

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ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin.,

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169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the

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administrative findings, or if conflicting evidence supports a finding of either

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disability or non-disability, the ALJ’s determination is conclusive. Sprague v.

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Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision

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supported by substantial evidence will be set aside if the proper legal standards

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were not applied in weighing the evidence and making the decision. Brawner v.

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Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988).

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SEQUENTIAL EVALUATION PROCESS
The Commissioner has established a five-step sequential evaluation process

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for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a),

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416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through

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four, the burden of proof rests upon the claimant to establish a prima facie case of

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entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is

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met once a claimant establishes that a physical or mental impairment prevents the

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3

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claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4),

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416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds

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to step five, and the burden shifts to the Commissioner to show that (1) the

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claimant can make an adjustment to other work; and (2) specific jobs exist in the

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national economy which claimant can perform. Batson v. Commissioner of Social

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Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make an

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adjustment to other work in the national economy, a finding of “disabled” is made.

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20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

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ADMINISTRATIVE DECISION
On June 9, 2015, the ALJ issued a decision finding Plaintiff was not disabled
as defined in the Social Security Act.
At step one, the ALJ found Plaintiff had not engaged in substantial gainful

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activity since April 9, 2013, the amended alleged onset date. Tr. 20. At step two,

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the ALJ determined Plaintiff had the following severe impairments: congenital

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myopathy with bilateral foot deformities; obesity; affective disorders variously

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diagnosed as bipolar disorders and depression; anxiety disorders variously

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diagnosed as anxiety, social phobia and posttraumatic stress disorder (PTSD); and

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personality traits. Tr. 20. At step three, the ALJ found Plaintiff did not have an

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impairment or combination of impairments that meets or medically equals the

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severity of one of the listed impairments. Tr. 20.

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The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found

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Plaintiff could perform light exertion level work, but with the following

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limitations: he could lift and carry 20 pounds occasionally and 10 pounds

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frequently; he could stand and/or walk for six hours and sit for six hours in an

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eight-hour workday; he could occasionally push/pull with his bilateral lower

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extremities, including in the operation of foot controls; he could frequently climb

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ramps and stairs but not climb ladders, ropes or scaffolds; he could frequently

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balance; he could occasionally stoop, kneel and crouch; he had no manipulative,

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4

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visual or communicative limitations; he would need to avoid concentrated

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exposure to hazardous machinery and working at unprotected heights; he could

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perform simple, routine tasks and follow short, simple instructions; he could do

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work that needs little or no judgment and could perform simple duties that could be

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learned on the job in a short period of less than 30 days; he could respond

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appropriately to supervision, but could not be required to do work in close

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coordination with coworkers where teamwork would be required; and he could

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deal with occasional changes in the work environment that would require only

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occasional exposure to or interaction with the general public. Tr. 22.

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At step four, the ALJ found Plaintiff was unable to perform his past relevant

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work as a dispatcher and nurse assistant. Tr. 26. At step five, the ALJ determined

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that, based on the testimony of the vocational expert, and considering Plaintiff’s

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age, education, work experience and RFC, Plaintiff was capable of making a

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successful adjustment to other work that exists in significant numbers in the

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national economy, including the jobs of production assembler; packing line

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worker; and cleaner, housekeeping. Tr. 27-28. The ALJ thus concluded Plaintiff

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was not under a disability within the meaning of the Social Security Act at any

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time from April 9, 2013, the alleged onset date, through the date of the ALJ’s

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decision, June 9, 2015. Tr. 27-28.

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ISSUES
The question presented is whether substantial evidence supports the ALJ’s

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decision denying benefits and, if so, whether that decision is based on proper legal

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standards.

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Plaintiff contends the ALJ erred by (1) rejecting the medical opinions of

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Caryn Jackson, M.D., and Philip Barnard, Ph.D.; (2) failing to provide legally

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sufficient reasons for discrediting Plaintiff’s symptom testimony; and (3)

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improperly discounting the lay witness statements of Plaintiff’s mother, Rosie

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Rutz.

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5

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DISCUSSION
A.

Medical Opinion Evidence

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Plaintiff first contends the ALJ erred by failing to provide legally sufficient

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reasons for rejecting the opinions of Drs. Jackson and Barnard. ECF No. 15 at 5-

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12. Plaintiff asserts the ALJ erred by instead according controlling weight to state

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agency nonexamining medical professionals regarding Plaintiff’s limitations. Id.

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In a disability proceeding, the courts distinguish among the opinions of three

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types of physicians: treating physicians, physicians who examine but do not treat

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the claimant (examining physicians) and those who neither examine nor treat the

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claimant (nonexamining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

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1996). A treating physician’s opinion carries more weight than an examining

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physician’s opinion, and an examining physician’s opinion is given more weight

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than that of a nonexamining physician. Benecke v. Barnhart, 379 F.3d 587, 592

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(9th Cir. 2004); Lester, 81 F.3d at 830. The Ninth Circuit has held that “[t]he

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opinion of a nonexamining physician cannot by itself constitute substantial

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evidence that justifies the rejection of the opinion of either an examining physician

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or a treating physician.” Lester, 81 F.3d at 830; Pitzer v. Sullivan, 908 F.2d 502,

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506 n.4 (9th Cir. 1990) (finding a nonexamining doctor’s opinion “with nothing

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more” does not constitute substantial evidence). Rather, an ALJ’s decision to

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reject the opinion of a treating or examining physician, may be based in part on

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the testimony of a nonexamining medical advisor. Magallanes v. Bowen, 881 F.2d

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747, 751-755 (9th Cir. 1989); Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir.

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1995). The ALJ must also have other evidence to support the decision such as

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laboratory test results, contrary reports from examining physicians, and testimony

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from the claimant that was inconsistent with the physician’s opinion. Magallanes,

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881 F.2d at 751-752; Andrews, 53 F.3d 1042-1043.

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The ALJ assigned “significant evidentiary weight” to the state agency
assessments of Gordon Hale, M.D., Michael L. Brown, Ph.D., and John F.

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6

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Robinson, Ph.D. Tr. 25. These nonexamining medical professionals found

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Plaintiff was limited to light exertion level work with two to six hours of standing

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and/or walking1 and six hours of sitting in an eight-hour workday, postural

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limitations and limitations in both lower extremities due to Plaintiff’s myopathy

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and repeated foot surgeries, and moderate limitations with Plaintiff’s ability to

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interact with the general public and coworkers/peers, Tr. 69-72, 95-97. The ALJ

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held that these functional assessments were largely consistent with Plaintiff’s

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longitudinal treatment history, his performance on physical and mental status

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examinations and his documented daily activities. Tr. 25.

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The ALJ accorded “little weight” to the assessments of Drs. Jackson and

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Barnard, finding they were inconsistent with Plaintiff’s longitudinal treatment

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history, his performance on physical and mental status examinations and his

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documented daily activities and social functioning. Tr. 25.

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Dr. Jackson, Plaintiff’s treating physician from March 2013 to October

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2014, Tr. 586, completed a physical functional evaluation form on June 7, 2013,

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which opined that Plaintiff would be limited to sedentary exertion level work, Tr.

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537. On July 1, 2013, a psychiatric evaluation was completed. Tr. 453-456. The

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report indicated Plaintiff had recently been hospitalized for seven days after

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attempting suicide three times in a three-week period. Tr. 453. Plaintiff was

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placed on Depakote and reported he had “felt pretty good” since leaving the

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On July 31, 2013, Dr. Robinson found Plaintiff was limited to “2 hours” of

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standing and/or walking in an eight-hour workday, Tr. 69; however, on December

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30, 2013, Dr. Hale opined Plaintiff would be limited to “about 6 hours” of standing

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and/or walking in an eight-hour workday. Tr. 95. The ALJ does not mention the

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difference between these credited opinions or specify why it was ultimately

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determined, inconsistent with Dr. Robinson’s opinion, that Plaintiff had the RFC to

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stand and/or walk for six hours in an eight-hour workday.

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7

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hospital, but still struggled with focus and concentration. Tr. 453. Several months

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later, on November 19, 2014, Dr. Jackson opined Plaintiff would miss four or more

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days per month mainly due to his anxiety issues. Tr. 587.

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Examiner Barnard completed a Psychological/Psychiatric Evaluation form

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on May 2, 2013. Tr. 530-534. At the time of the evaluation, Plaintiff was taking

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Depakote for his mental health symptoms. Tr. 530. Dr. Barnard opined that

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Plaintiff’s depression and paranoid ideation would interfere with his ability to work

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on a daily basis to a moderate extent. Tr. 531. Dr. Barnard determined Plaintiff

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would have a marked limitation in his ability to communicate and perform

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effectively in a work setting and severe limitations with his abilities to complete a

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normal work day and work week without interruptions from psychologically based

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symptoms and to maintain appropriate behavior in a work setting. Tr. 532.

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In rejecting the opinions of Drs. Jackson and Barnard, the ALJ first

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determined that their assessments and low GAF scores were inconsistent with “the

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longitudinal treatment history.” Tr. 26. The Court notes that an ALJ has no

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obligation to credit or even consider GAF scores in the disability determination.

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See 65 Fed. Reg. 50746, 50764 65 (Aug. 21, 2000) (“The GAF scale . . . does not

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have a direct correlation to the severity requirements in our mental disorders

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listings.”). In fact, the GAF scale is no longer included in the DSM-V. Diagnostic

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And Statistical Manual of Mental Disorders, 16 (5th ed. 2013).2 In any event, here,

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the ALJ fails to specifically describe what “longitudinal treatment” evidence

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specifically contradicted the opinions of Drs. Jackson and Barnard. See Brown-

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“It was recommended that the GAF be dropped from the DSM-V for

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several reasons, including its conceptual lack of clarity (i.e., including symptoms,

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suicide risk, and disabilities in its descriptors) and questionable psychometrics in

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routine practice.” Diagnostic And Statistical Manual of Mental Disorders, 16 (5th

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ed. 2013).

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8

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Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (finding the agency must set

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forth reasoning behind its decisions in a way that allows for meaningful review). If

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the ALJ fails to specify his rationale, a reviewing court will be unable to review

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those reasons meaningfully without improperly “substitut[ing] our conclusions for

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the ALJ’s, or speculat[ing] as to the grounds for the ALJ’s conclusions.” Brown-

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Hunter, 806 F.3d at 492 quoting Treichler v. Comm’r of Soc. Sec. Admin., 775

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F.3d 1090, 1103 (9th Cir. 2014). Because the ALJ failed to identify what specific

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“longitudinal treatment history” evidence contradicted the medical opinions of Drs.

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Jackson and Barnard, the Court finds this basis to discount their opinions is not

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properly supported.
The ALJ next held that the opinions of Drs. Jackson and Barnard were

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inconsistent with Plaintiff’s performance on physical and mental status

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examinations. Tr. 25. Again, the ALJ does not identify what specific physical and

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mental status examinations contradict the opinions of Drs. Jackson and Barnard.

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In fact, it appears to the Court that Drs. Jackson and Barnard are the only

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acceptable medical sources to have examined Plaintiff during the relevant time

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period, and their opinions are not inconsistent with their examination reports. This

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was not a specific and legitimate reason to reject their opinions.

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The ALJ next stated that Dr. Jackson’s and Dr. Barnard’s assessments were

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not consistent with Plaintiff’s documented daily activities and social functioning.

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Tr. 25. The ALJ does not specify conflicting daily activities or social functioning

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other than to highlight Plaintiff started community college in 2013 and continued

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to pursue his degree. Tr. 25. Although Plaintiff was taking a normal load of

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college classes at the time of the administrative hearing (15 credits), he performed

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most of his coursework online and only spent six hours a week on campus. Tr. 41-

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42, 46-48. As asserted by Plaintiff, his ability to attend classes six hours a week

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does not conflict with the medical opinions of Drs. Jackson and Barnard. ECF No.

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15 at 10.

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9

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The ALJ also notes Plaintiff had increased depression due to relationship

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problems around the alleged onset date, but engaged in treatment and improved by

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mid-2013; he was no longer suicidal; and his mental status examinations were

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largely unremarkable. Tr. 25. At the time of Dr. Barnard’s May 2, 2013

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examination evaluation, Plaintiff was taking Depakote. Tr. 530. Consequently,

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marked and severe functional limitations were assessed by Dr. Barnard despite the

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fact that Plaintiff had been treated for his mental health symptoms. Tr. 532. The

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same is true with respect to Dr. Jackson’s opinions. In fact, Dr. Jackson opined

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Plaintiff would miss four or more days per month due to anxiety issues more than a

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year after “mid-2013.” Tr. 587. Furthermore, as argued by Plaintiff, the fact that

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Plaintiff had not attempted suicide since mid-2013 did not definitively demonstate

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that Plaintiff’s mental health symptoms were any less than as concluded by Drs.

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Jackson and Barnard. The ALJ erred by rejecting the opinions of Drs. Jackson and

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Barnard on this basis as well.

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The ALJ additionally discounted Dr. Jackson’s November 2014 report

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because it was “equivocal”; specifically, she “suspected” Plaintiff may have to lie

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down during the day due to muscular fatigue and indicated Plaintiff’s medications

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“may” cause sedation. Tr. 25, 586. As asserted by Plaintiff, ECF No. 15 at 11 n.2,

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even if these statements were ambiguous or equivocal, it would not affect, and is

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thus an insufficient basis to discount, Dr. Jackson’s clear opinion that Plaintiff

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would miss four or may days per month due to anxiety. Tr. 587.

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The ALJ also determined that since Dr. Jackson was merely a primary care

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physician, not an acceptable mental health source, she was not qualified to assess

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Plaintiff’s psychological capacity. Tr. 25-26. Defendant explicitly did not rely on

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the ALJ’s rationale in this regard. ECF No. 19 at 9. While the regulations

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generally give more weight to the medical opinion of a specialist about medical

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issues related to his or her area of specialty than to the medical opinion of a source

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who is not a specialist, 20 C.F.R. § 404.1527(d)(5); see Holohan v. Massanari, 246

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10

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F.3d 1195, 1202 n. 2 (9th Cir. 2001), Dr. Jackson, Plaintiff’s treating physician

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from March 2013 to October 2014, Tr. 586, was fully qualified to opine regarding

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Plaintiff’s mental health symptoms and associated limitations. This was not a

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proper basis to reject Dr. Jackson’s opinions.

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The Court finds the ALJ provided no valid basis, other than the conflicting

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opinions reflected in the assessments of the nonexamining state agency medical

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professionals, Tr. 25, 67-74, 95-98, for discounting the opinions of Drs. Jackson

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and Barnard. As indicated above, “[t]he opinion of a nonexamining physician

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cannot by itself constitute substantial evidence that justifies the rejection of the

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opinion of either an examining physician or a treating physician.” Lester, 81 F.3d

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at 830. The ALJ erred by relying completely on the nonexamining medical

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profession opinions in formulating Plaintiff’s RFC; accordingly, the ALJ’s

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assessment of Plaintiff’s functioning is not supported by substantial record

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evidence in this case.

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Although the evidence of record demonstrates Plaintiff suffers from severe

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impairments which adversely affect his ability to work, the Court is not convinced

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Plaintiff’s impairments cause totally disabling limitations. However, Plaintiff’s

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functioning is an administrative finding, dispositive of the case, which is reserved

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to the Commissioner and, by delegation of authority, to the ALJ. SSR 96-5p. It is

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the responsibility of the ALJ, not this Court, to assess Plaintiff’s level of

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functioning. Therefore, Plaintiff’s RFC must be redetermined, on remand, taking

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into consideration the opinions of the medical professionals noted above, as well as

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any additional or supplemental evidence relevant to Plaintiff’s claim for disability

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benefits. This matter will be remanded for additional proceedings in order for the

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ALJ to further develop the record, take into consideration Plaintiff’s physical and

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psychological impairments, and assess the limitations those impairments may have

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on Plaintiff’s functionality.

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ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11

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B.

Plaintiff’s Subjective Complaints
Plaintiff also contends the ALJ erred by improperly discrediting his

symptom claims. ECF No. 15 at 12-18.
It is the province of the ALJ to make credibility determinations. Andrews,

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53 F.3d at 1039. However, the ALJ’s findings must be supported by specific

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cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once

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the claimant produces medical evidence of an underlying medical impairment, the

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ALJ may not discredit testimony as to the severity of an impairment because it is

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unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.

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1998). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting

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the claimant’s testimony must be “specific, clear and convincing.” Smolen, 80

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F.3d at 1281; Lester, 81 F.3d at 834. “General findings are insufficient: rather the

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ALJ must identify what testimony is not credible and what evidence undermines

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the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d

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915, 918 (9th Cir. 1993).

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The ALJ concluded that Plaintiff’s medically determinable impairments

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could reasonably be expected to cause some of the alleged symptoms; however,

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Plaintiff’s statements concerning the intensity, persistence and limiting effects of

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those symptoms were not entirely credible. Tr. 23. The ALJ listed the following

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reasons to discount Plaintiff’s subjective complaints: (1) the objective medical

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evidence did not substantiate Plaintiff’s allegations of disabling limitations; (2)

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treatment records reflect Plaintiff’s symptoms improved with treatment; and (3)

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Plaintiff’s independent daily activities and social interaction were inconsistent with

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his allegations of disabling functional limitations. Tr. 23-24.

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While some of the reasons provided by the ALJ for discounting Plaintiff’s

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testimony may be supported by the evidence of record, this matter must be

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remanded for additional proceedings in light of the ALJ’s erroneous determination

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regarding the medical opinion evidence of record. Accordingly, on remand, the

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12

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ALJ shall also reconsider Plaintiff’s statements and testimony and discuss what

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statements, if any, are not credible and what evidence undermines those

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statements.

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C.

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Lay Witness Statement
Plaintiff contends the ALJ further erred by improperly rejecting the lay

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witness statements of Plaintiff’s mother, Rosie Rutz, Tr. 274-281. ECF No. 15 at

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18-20.

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The ALJ shall “consider observations by non-medical sources as to how an
impairment affects a claimant’s ability to work.” Sprague v. Bowen, 812 F.2d

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1226, 1232 (9th Cir. 1987), citing 20 C.F.R. § 404.1513(e)(2). “Descriptions by

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friends and family members in a position to observe a claimant’s symptoms and

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daily activities have routinely been treated as competent evidence.” Sprague, 812

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F.2d at 1232. The ALJ may not ignore or improperly reject the probative

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testimony of a lay witness without giving reasons that are germane to each witness.

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Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).

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The ALJ considered the statements of Ms. Rutz, found her observations

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similar to Plaintiff’s subjective complaints, and thus assigned little weight to Ms.

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Rutz’ statements “for the same reasons” as he determined that Plaintiff’s

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statements were not entirely credible (i.e., longitudinal treatment history,

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performance on exam, and daily activities). Tr. 26; see Valentine v. Comm’r Soc.

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Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (indicating that third-party

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testimony can be rejected for the same reasons provided for rejecting the

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claimant’s testimony).

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As concluded above, this matter will be remanded for additional proceedings

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in light of the ALJ’s erroneous determination regarding the medical opinion

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evidence of record. In addition to reassessing Plaintiff’s RFC on remand, the ALJ

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shall reevaluate Plaintiff’s statements and testimony. Accordingly, on remand, the

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ALJ shall also reconsider and reevaluate the lay witness statements of Rosie Rutz

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 13

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and the medical record as a whole with respect to Plaintiff’s limitations and

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functioning.

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CONCLUSION
Plaintiff argues the ALJ’s decision should be reversed and remanded for an

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immediate award benefits. The Court has the discretion to remand the case for

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additional evidence and findings or to award benefits. Smolen, 80 F.3d at 1292.

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The Court may award benefits if the record is fully developed and further

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administrative proceedings would serve no useful purpose. Id. Remand is

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appropriate when additional administrative proceedings could remedy defects.

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Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court

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finds that further development is necessary for a proper determination to be made.

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On remand, the ALJ shall revisit Plaintiff’s RFC. The ALJ shall reconsider

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the opinions of Drs. Jackson and Barnard and all other medical evidence of record,

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reassess Plaintiff’s statements and testimony, and reevaluate the statements of lay

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witness Rosie Rutz. The ALJ shall develop the record further by directing Plaintiff

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to undergo consultative physical and psychological examinations and/or by

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eliciting the testimony of a medical expert or experts at a new administrative

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hearing to assist the ALJ in formulating a new RFC determination. The ALJ shall

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obtain supplemental testimony from a vocational expert, if necessary, and take into

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consideration any other evidence or testimony relevant to Plaintiff’s disability

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claim.

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Accordingly, IT IS ORDERED:

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1.

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Plaintiff’s Motion for Summary Judgment, ECF No. 15, is

GRANTED, IN PART.
2.

Defendant’s Motion for Summary Judgment, ECF No. 19, is

DENIED.
3.

The matter is REMANDED to the Commissioner for additional

proceedings consistent with this Order.

ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 14

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4.

An application for attorney fees may be filed by separate motion.

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The District Court Executive is directed to file this Order and provide a copy

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to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and

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the file shall be CLOSED.

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DATED November 6, 2017.

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_____________________________________
JOHN T. RODGERS
UNITED STATES MAGISTRATE JUDGE

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ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 15