Wells v. Commissioner of Social Security

Filing 18

ORDER Granting 14 Plaintiff's Motion for Summary Judgment, Inter Alia; denying 15 Defendant's Motion for Summary Judgment. Signed by Senior Judge Lonny R. Suko. (PL, Case Administrator)

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1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Apr 12, 2018 4 5 6 7 8 9 10 11 12 13 14 15 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ) ) ) Plaintiff, ) ) vs. ) ) NANCY A. BERRYHILL, ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ______________________________ ) KIMBERLY ANN WELLS, No. 1:17-CV-03144-LRS ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, INTER ALIA BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment (ECF No. 14) and the Defendant's Motion For Summary Judgment (ECF No. 15). 16 17 JURISDICTION 18 Kimberly Ann Wells, Plaintiff, applied for Title II Social Security Disability 19 Insurance benefits (SSDI) and Title XVI Supplemental Security Income benefits 20 (SSI) on May 9, 2011. The applications were denied initially and on reconsideration. 21 Plaintiff timely requested a hearing which was held on April 30, 2013, before 22 Administrative Law Judge (ALJ) Wayne N. Araki. Plaintiff testified at the hearing, 23 as did Vocational Expert (VE) Kimberly Mullinax. On June 24, 2013, the ALJ issued 24 a decision finding the Plaintiff not disabled. The Appeals Council denied a request 25 for review of the ALJ’s decision, making that decision the Commissioner’s final 26 decision subject to judicial review. Plaintiff appealed to federal district court and on 27 February 18, 2016, the court granted Plaintiff’s motion for summary judgment and 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 1 1 remanded the matter to the Commissioner for further proceedings. (ECF No. 31 in 2 1:15-CV-03033-JTR). 3 A second administrative hearing was held on February 13, 2017, before ALJ 4 Araki. Plaintiff testified at the hearing, as did VE Mullinax. On June 15, 2017, the 5 ALJ issued a decision finding the Plaintiff disabled as of April 27, 2014 and awarding 6 her SSI benefits. Plaintiff, however, was not awarded SSDI benefits since her date 7 last insured for those benefits was September 30, 2011. The Appeals Council denied 8 a request for review of the ALJ’s decision, making that decision the Commissioner’s 9 final decision subject to judicial review. The Commissioner’s final decision is 10 appealable to district court pursuant to 42 U.S.C. §405(g) and §1383(c)(3). 11 12 STATEMENT OF FACTS 13 The facts have been presented in the administrative transcript, the ALJ's 14 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. 15 Plaintiff has a high school education and past relevant work experience as a 16 dispatcher, night auditor, and customer service representative. She alleges disability 17 since December 31, 2008, on which date she was 38 years old. 18 19 STANDARD OF REVIEW 20 "The [Commissioner's] determination that a claimant is not disabled will be 21 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 22 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 23 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 24 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 25 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 26 1988). "It means such relevant evidence as a reasonable mind might accept as 27 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 2 1 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 2 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 3 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 4 On review, the court considers the record as a whole, not just the evidence supporting 5 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 6 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 7 It is the role of the trier of fact, not this court to resolve conflicts in evidence. 8 Richardson, 402 U.S. at 400. If evidence supports more than one rational 9 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 10 F.2d 577, 579 (9th Cir. 1984). 11 A decision supported by substantial evidence will still be set aside if the proper 12 legal standards were not applied in weighing the evidence and making the decision. 13 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 14 1987). 15 16 ISSUES 17 Plaintiff argues the ALJ erred in finding Plaintiff was not disabled prior to 18 April 27, 2014, her date last insured for SSDI benefits. More specifically in that 19 regard, Plaintiff argues the ALJ erred in: 1) improperly assessing the medical opinion 20 evidence; and 2) failing to provide specific, clear and convincing reasons for 21 discounting Plaintiff’s testimony regarding her symptoms and limitations. 22 23 24 25 DISCUSSION SEQUENTIAL EVALUATION PROCESS 26 The Social Security Act defines "disability" as the "inability to engage in any 27 substantial gainful activity by reason of any medically determinable physical or 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 3 1 mental impairment which can be expected to result in death or which has lasted or can 2 be expected to last for a continuous period of not less than twelve months." 42 3 U.S.C. § 423(d)(1)(A) and § 1382c(a)(3)(A). The Act also provides that a claimant 4 shall be determined to be under a disability only if her impairments are of such 5 severity that the claimant is not only unable to do her previous work but cannot, 6 considering her age, education and work experiences, engage in any other substantial 7 gainful work which exists in the national economy. Id. 8 The Commissioner has established a five-step sequential evaluation process for 9 determining whether a person is disabled. 20 C.F.R. §§ 404.1520 and 416.920; 10 Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines 11 if she is engaged in substantial gainful activities. If she is, benefits are denied. 20 12 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). If she is not, the decision-maker 13 proceeds to step two, which determines whether the claimant has a medically severe 14 impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii) and 15 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination 16 of impairments, the disability claim is denied. If the impairment is severe, the 17 evaluation proceeds to the third step, which compares the claimant's impairment with 18 a number of listed impairments acknowledged by the Commissioner to be so severe 19 as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii) and 20 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 21 equals one of the listed impairments, the claimant is conclusively presumed to be 22 disabled. If the impairment is not one conclusively presumed to be disabling, the 23 evaluation proceeds to the fourth step which determines whether the impairment 24 prevents the claimant from performing work she has performed in the past. If the 25 claimant is able to perform her previous work, she is not disabled. 20 C.F.R. §§ 26 404.1520(a)(4)(iv) and 416.920(a)(4)(iv). If the claimant cannot perform this work, 27 the fifth and final step in the process determines whether she is able to perform other 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 4 1 work in the national economy in view of her age, education and work experience. 20 2 C.F.R. §§ 404.1520(a)(4)(v) and 416.920(a)(4)(v). 3 The initial burden of proof rests upon the claimant to establish a prima facie 4 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 5 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 6 mental impairment prevents her from engaging in her previous occupation. The 7 burden then shifts to the Commissioner to show (1) that the claimant can perform 8 other substantial gainful activity and (2) that a "significant number of jobs exist in the 9 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 10 1498 (9th Cir. 1984). 11 12 ALJ'S FINDINGS The ALJ found the following: 13 14 1) Between December 31, 2008 and December 31, 2011, Plaintiff had 15 “severe” medically determinable impairments of obesity and degenerative disc 16 disease of the cervical spine; 17 2) Beginning on January 1, 2012 through April 26, 2014, Plaintiff had 18 “severe” medically determinable impairments of obesity and degenerative disc 19 disease of the cervical spine, depressive disorder, somatoform disorder, and 20 personality disorder; 21 3) Beginning April 27, 2014, Plaintiff had “severe” medically determinable 22 impairments of obesity and degenerative disc disease of the cervical spine, hip 23 disorder, chronic otitis media, depressive disorder, somatoform disorder, and 24 personality disorder; 4) Plaintiff’s impairments do not meet or equal any of the impairments listed 25 26 in 20 C.F.R. § 404 Subpart P, App. 1; 27 /// 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 5 1 5) Between December 31, 2008 and December 31, 2011, Plaintiff had the 2 Residual Functional Capacity (RFC) to perform light work, defined as lifting and/or 3 carrying up to 20 pounds occasionally and 10 pounds frequently, standing/walking 4 up to two hours, and sitting up to two hours at a time; able to occasionally stoop, 5 kneel, crouch, balance and climb ramps and stairs; unable to crawl or climb ladders, 6 ropes or scaffolds; able to frequently reach, finger, and handle bilaterally. 7 6) Between January 1, 2012 and April 26, 2014, Plaintiff had the same physical 8 RFC and her mental RFC was such that she was able to remember and carry out 9 instructions for tasks generally required of occupations with a specific vocational 10 preparation (SVP) of one or two1; should be able to complete job tasks without the 11 assistance of others, but occasional assistance would be tolerated; could have 12 occasional, superficial interaction with the general public and occasional interaction 13 with co-workers and supervisors. 14 7) Beginning April 27, 2014, Plaintiff has the RFC to perform sedentary work 15 defined as lifting and/or carrying up to 10 pounds occasionally and 10 pounds 16 frequently2, standing and/or walking for 15 minute intervals for up to two hours a day, 17 and sitting for one to two hour intervals for up to eight hours a day. Her postural and 18 manipulative capacities remained as before, as did her mental RFC, but she would 19 20 21 22 23 24 25 26 27 28 1 An SVP of 1 requires only a short demonstration. An SVP of 2 requires anything beyond short demonstration up to and including one month. Dictionary of Occupational Titles (Rev. 4th ed.)(U.S. Dept. of Labor, 1991). See also https://www.onetonline.org/help/online/svp. 2 The lifting requirements recited by the ALJ for sedentary work are not in accord with those specified in 20 C.F.R. §404.1567(a) and 416.967(a) which are lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers and small tools. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 6 1 likely miss at least 16 hours of work per month on a sustained basis; would likely 2 need to take rest breaks in addition to normally scheduled breaks as needed for up to 3 15 to 30 minutes; and would need to change positions after standing for 15 minutes 4 or after sitting for one to two hours. 5 8) Between December 31, 2008 and December 31, 2011, Plaintiff was capable 6 of performing her past relevant work as a dispatcher, night auditor, and customer 7 service representative. 8 9) Between January 1, 2012 and April 26, 2014, Plaintiff was not capable of 9 performing the aforementioned past relevant work, but she was capable of performing 10 other jobs existing in significant numbers in the national economy as testified to by 11 the VE, including cleaner/housekeeper, production assembler and outside deliverer. 12 10) Beginning on April 27, 2014, the Plaintiff’s RFC precluded her from 13 performing her past relevant work and other jobs existing in significant numbers in 14 the national economy. 15 Accordingly, Plaintiff became disabled on April 27, 2014 so as to be eligible 16 for SSI benefits, but was not disabled prior thereto and therefore, ineligible for SSDI 17 benefits. 18 19 SYMPTOM TESTIMONY 20 Where, as here, the Plaintiff has produced objective medical evidence of an 21 underlying impairment that could reasonably give rise to some degree of the 22 symptoms alleged, and there is no affirmative evidence of malingering, the ALJ’s 23 reasons for rejecting the Plaintiff’s testimony must be clear and convincing. Burrell 24 v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 25 1014 (9th Cir. 2014). If an ALJ finds a claimant’s subjective assessment unreliable, 26 “the ALJ must make a credibility determination with findings sufficiently specific to 27 permit [a reviewing] court to conclude that the ALJ did not arbitrarily discredit [the] 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 7 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.2002). 1 claimant’s testimony.” 2 Among other things, the ALJ may consider: 1) the claimant's reputation for 3 truthfulness; 2) inconsistencies in the claimant's testimony or between her testimony 4 and her conduct; 3) the claimant’s daily living activities; 4) the claimant's work 5 record; and 5) testimony from physicians or third parties concerning the nature, 6 severity, and effect of claimant's condition. Id. Subjective testimony cannot be 7 rejected solely because it is not corroborated by objective medical findings, but 8 medical evidence is a relevant factor in determining the severity of a claimant’s 9 impairments. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 10 As in his June 2013 decision, the ALJ in his June 2017 decision found the 11 Plaintiff was less than fully credible regarding the intensity, persistence and limiting 12 effects of her symptoms. (ECF No. 31 in CV-15-3033-JTR at p. 12 and AR at p. 792) 13 And as in his June 2013 decision, the ALJ in his June 2017 decision found Plaintiff’s 14 physical symptom reporting was not supported by longitudinal examination findings. 15 (Id.). While acknowledging Plaintiff “has a longstanding history of complaints of 16 pain related to her neck and upper extremities,” the ALJ found that “[d]espite 17 [Plaintiff’s] ongoing complaints of pain during this time, the findings upon physical 18 examination have been generally unremarkable.” (AR at p. 792). As Magistrate 19 Judge Rodgers pointed out in his order granting Plaintiff’s motion for summary 20 judgment and remanding for further administrative proceedings, objective medical 21 evidence cannot be the sole reason supporting an adverse credibility finding. (ECF 22 No. 31 in CV-15-3033-JTR at p. 12, citing Rollins v. Massanari, 261 F.2d 853, 857 23 (9th Cir. 2001)). 24 According to the Commissioner, the ALJ provided other reasons for 25 discounting Plaintiff’s symptom testimony. For example, the ALJ noted that Plaintiff 26 was able to engage in a group class for chronic pain and “was able to fully participate 27 and engage in the classes, providing insight to other participants.” (AR at p. 795). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 8 1 The ALJ concluded that this suggested Plaintiff’s “mental health issues did not cause 2 more than moderate limitations during this time.” (Id.). It does not appear, however, 3 that Plaintiff takes issue with what the ALJ concluded regarding Plaintiff’s mental 4 RFC. Plaintiff’s focus is on her physical RFC and the ALJ’s conclusion that 5 beginning on April 27, 2014, there was a worsening of Plaintiff’s physical 6 impairments such as to limit her to sedentary work and rendering her disabled after 7 that date, as compared to the period prior to April 27, 2014, during which the ALJ 8 concluded the Plaintiff was not disabled because she was capable of performing light 9 work. That the ALJ found Plaintiff’s participation in chronic pain classes suggested 10 she had no more than moderate mental limitations is not a reason for discounting 11 Plaintiff’s testimony regarding the severity of her physical symptoms. 12 In his June 2017 decision, the ALJ found the Plaintiff has certain non-severe 13 impairments including hypertension, hyperlipidemia and diabetes mellitus for which 14 she has been treated with medication. (AR at p. 790). According to the ALJ, it 15 appeared Plaintiff had not always been “compliant” in taking these medications. 16 (Id.). This is not a clear and convincing reason for discounting Plaintiff’s testimony 17 about symptoms related to her severe physical impairments- obesity and degenerative 18 disease of the cervical spine. The ALJ apparently recognized this because he did not 19 cite Plaintiff’s failure to take medication for hypertension, hyperlipidemia and 20 diabetes mellitus as a reason for discounting Plaintiff’s complaints about pain related 21 to degenerative disease of her cervical spine. 22 In sum then, as in his June 2013 decision, the only reason the ALJ essentially 23 offered for discounting Plaintiff’s physical symptom testimony was that it was not 24 supported by the objective medical evidence. As a matter of law, this is insufficient. 25 // 26 // 27 // 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 9 1 MEDICAL OPINIONS 2 It is settled law in the Ninth Circuit that in a disability proceeding, the opinion 3 of a licensed treating or examining physician or psychologist is given special weight 4 because of his/her familiarity with the claimant and his/her condition. If the treating 5 or examining physician's or psychologist’s opinion is not contradicted, it can be 6 rejected only for clear and convincing reasons. Reddick v. Chater, 157 F.3d 715, 725 7 (9th Cir. 1998); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the 8 ALJ may reject the opinion if specific, legitimate reasons that are supported by 9 substantial evidence are given. Id. “[W]hen evaluating conflicting medical opinions, 10 an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, 11 and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 12 1216 (9th Cir. 2005). The opinion of a non-examining medical advisor/expert need 13 not be discounted and may serve as substantial evidence when it is supported by other 14 evidence in the record and consistent with the other evidence. Andrews v. Shalala, 15 53 F.3d 1035, 1041 (9th Cir. 1995). 16 Nurse practitioners, physicians’ assistants, and therapists (physical and mental 17 health) are not “acceptable medical sources” for the purpose of establishing if a 18 claimant has a medically determinable impairment. 20 C.F.R. §§ 404.1513(a); 19 416.913(a). Their opinions are, however, relevant to show the severity of an 20 impairment and how it affects a claimant’s ability to work. 20 C.F.R. §§ 404.1513(d); 21 416.913(d). 22 In his June 2013 decision, the ALJ gave “little weight” to the opinions of John 23 Naiden, M.D., Andres Laufer, M.D., Paula Renzi, D.O., and occupational therapist, 24 Terri James, all of whom limited the Plaintiff to a sedentary work level. (ECF No. 31 25 in CV-15-3033-JTR at p. 9). He did so on the asserted basis that their opinions were 26 inconsistent with the imaging findings and the physical examination findings. (Id.). 27 In his order granting Plaintiff’s motion for summary judgment, Magistrate Judge 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 10 1 Rodgers noted that stating “medical opinions are not supported by objective findings 2 or are contrary to the preponderant conclusions mandated by the objective findings” 3 does not meet the “specific and legitimate” standard. (ECF No. 31 in CV-15-3033- 4 JTR at p. 10, quoting Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988)). The ALJ 5 must do more than offer conclusions and is required to “set forth his interpretations 6 and explain why they, rather than the doctors’, are correct.” (Id. at p. 11, quoting 7 Embrey). Magistrate Judge Rodgers found the ALJ “simply repeated the objective 8 findings, but did not explain why these objective findings merited weight, but the 9 doctors’ other conclusions and opinions did not.” (Id.). 10 In reviewing the ALJ’s June 2013 decision (ECF No. 11-2 to CV-15-3033-JTR 11 at pp. 34-35), it does not appear to be significantly different from his June 2017 12 decision which again accorded little weight to the opinions of treating physicians, 13 Drs. Laufer and Renzi, and occupational therapist Ms. James, on the basis the 14 limitations opined by them are not supported by the physical and objective findings. 15 (AR at pp. 73-74). As in his June 2013 decision, the ALJ, in his June 2017 decision, 16 accorded great weight to the opinion of William Drenguis, M.D., who in November 17 2011, performed a consultative examination of the Plaintiff. He reviewed the medical 18 record, including presumably the records of Drs. Laufer and Renzi. Dr. Drenguis 19 opined that Plaintiff’s maximum standing and walking capacity was six hours a day 20 in an eight hour day; her maximum sitting capacity was six hours a day in an eight 21 hour day, and her maximum lifting/carrying capacity was “20 pounds occasionally 22 and 10 pounds frequently, limited because of the sensory findings in the left arm.” 23 (AR at p. 556)(emphasis added). Dr. Drenguis confirmed that Plaintiff had a limited 24 cervical range of motion. (AR at p. 555). He also confirmed Plaintiff’s diagnosis of 25 fibromyalgia, finding Plaintiff was “tender in all the major muscle groups” (AR at p. 26 555) and would have a number of postural limitations due to “weakness and pain 27 from the fibromyalgia.” (AR at p. 556). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 11 1 It would have been appropriate for the ALJ to rely on Dr. Drenguis for the 2 ALJ’s physical RFC conclusion, but for three reasons: 1) Dr. Drenguis seemingly 3 suggests Plaintiff cannot perform the lifting requirements of light work 4 (lifting/carrying 20 pounds occasionally and 10 pounds frequently) because of 5 sensory issues regarding her left arm; 2) no adequate reason was given by the ALJ for 6 discounting Plaintiff’s symptom testimony; and 3) it is not readily apparent that 7 Plaintiff’s physical condition worsened after April 26, 2014, so as to materially 8 distinguish it from her physical condition as it existed in March 2009. 9 As mentioned above, the ALJ found that after April 26, 2014, Plaintiff’s 10 physical RFC was reduced from light to sedentary work. He reached this conclusion 11 because: I find that beginning on April 27, 2014, the [Plaintiff’s] allegations regarding her symptoms and limitations are consistent with the evidence. The medical evidence of record from this time demonstrates worsening of the [Plaintiff’s] physical impairments. Imaging of the cervical spine in February 2015 showed multi-level degenerative disc disease with neural foraminal narrowing at the C5-C7 levels. [Citation omitted]. The [Plaintiff] also began to receive treatment for referred otalgia from severe arthritis in her neck. This condition worsened such that [Plaintiff] began to experience dizziness and a spinning sensation. [Citation omitted]. . . . In addition to her chronic neck pain, the [Plaintiff] also began to endorse, and be treated for hip pain. [Citation omitted]. She underwent injections as well as therapy for her pain complaints. [Citation omitted]. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (AR at p. 797). The “Impression” from the February 2015 MRI of Plaintiff’s cervical spine was as follows: Multilevel degenerative disc disease and uncovertebral hypertrophy most evident at the C4-C5, C5-C6 and C6-C7 levels. A mild degree of encroachment upon the neural foramina at C5-C6 and C6-C7 are again identified. Minimal narrowing of the spinal canal is identified at this level. No interval change from the prior study of 05/23/ 2012 is observed. (AR at p. 1169)(emphasis added). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 12 1 The “Impression” of the May 2012 MRI was “[s]mall central protrusions of C5- 2 6 and C6-7 discs with mild stenosis of the canal similar to prior exam.” (AR at p. 3 666). The “prior exam” was the one conducted in May 2009. (AR at pp. 388-89). 4 The results of all three MRIs were essentially the same and therefore, the February 5 2015 MRI did not demonstrate a worsening of Plaintiff’s cervical spine impairment. 6 As Plaintiff notes, her otalgia diagnosis (otherwise known as ear pain) dates 7 back to December 2012 (AR at p. 775), and the medical record indicates complaints 8 of dizziness dating back to April 2009 (AR at p. 463), with intermittent complaints 9 of dizziness thereafter. As the ALJ pointed out, it was surmised that Plaintiff’s 10 otalgia was probably the result of severe arthritis in her neck. (AR at p. 1350). 11 Plaintiff’s complaints of hip pain date back to at least early 2012. (e.g, AR at p. 719). 12 There is not substantial evidence in the record justifying the ALJ’s finding of 13 a less limited physical RFC for the Plaintiff for the periods between December 31, 14 2008 and December 31, 2011, and between January 1, 2012 and April 26, 2012, 15 compared to the period beginning April 27, 2014. Instead, substantial evidence in the 16 record establishes that the physical RFC the ALJ found for the period beginning April 17 27, 2014, should be the same physical RFC that existed for Plaintiff beginning on 18 March 24, 2009, when her treating physician, Dr. Laufer, opined Plaintiff was limited 19 to sedentary work and to working only 1 to 10 hours per week. (AR at p. 619). 20 21 REMAND 22 Social security cases are subject to the ordinary remand rule which is that when 23 “the record before the agency does not support the agency action, . . . the agency has 24 not considered all the relevant factors, or . . . the reviewing court simply cannot 25 evaluate the challenged agency action on the basis of the record before it, the proper 26 course, except in rare circumstances, is to remand to the agency for additional 27 investigation or explanation.” Treichler v. Commissioner of Social Security 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 13 1 Administration, 775 F.3d 1090, 1099 (9th Cir. 2014), quoting Fla. Power & Light Co. 2 v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598 (1985). 3 In “rare circumstances,” the court may reverse and remand for an immediate 4 award of benefits instead of for additional proceedings. Treichler, 775 F.3d at 1099, 5 citing 42 U.S.C. §405(g). Three elements must be satisfied in order to justify such 6 a remand. The first element is whether the “ALJ has failed to provide legally 7 sufficient reasons for rejecting evidence, whether claimant testimony or medical 8 opinion.” Id. at 1100, quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). 9 If the ALJ has so erred, the second element is whether there are “outstanding issues 10 that must be resolved before a determination of disability can be made,” and whether 11 further administrative proceedings would be useful. Id. at 1101, quoting Moisa v. 12 Barnhart, 367 F.3d 882, 887 (9th Cir. 2004). “Where there is conflicting evidence, 13 and not all essential factual issues have been resolved, a remand for an award of 14 benefits is inappropriate.” Id. Finally, if it is concluded that no outstanding issues 15 remain and further proceedings would not be useful, the court may find the relevant 16 testimony credible as a matter of law and then determine whether the record, taken 17 as a whole, leaves “not the slightest uncertainty as to the outcome of [the] 18 proceedings.” Id., quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 19 (1969). Where all three elements are satisfied- ALJ has failed to provide legally 20 sufficient reasons for rejecting evidence, there are no outstanding issues that must be 21 resolved, and there is no question the claimant is disabled- the court has discretion 22 to depart from the ordinary remand rule and remand for an immediate award of 23 benefits. Id. But even when those “rare circumstances” exist, “[t]he decision whether 24 to remand a case for additional evidence or simply to award benefits is in [the court’s] 25 discretion.” Id. at 1102, quoting Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 26 1989). 27 /// 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 14 1 The court finds all three elements are satisfied in this case. In light of the fact 2 this case has already been remanded once to the Commissioner, the court exercises 3 it discretion to award benefits to the Plaintiff. 4 CONCLUSION 5 6 Plaintiff’s Motion For Summary Judgment (ECF No. 14) is GRANTED and 7 Defendant’s Motion For Summary Judgment (ECF No. 15) is DENIED. The 8 Commissioner's decision is REVERSED. Pursuant to sentence four of 42 U.S.C. §§ 9 405(g) and 1383(c)(3), this matter is REMANDED to the Commissioner for an 10 award of Title II SSDI benefits based on Plaintiff becoming disabled as of March 24, 11 2009. An application for attorney fees may be filed by separate motion. 12 13 14 IT IS SO ORDERED. The District Executive shall enter judgment accordingly and forward copies of the judgment and this order to counsel of record. DATED this 12th day of April, 2018. 15 16 17 18 s/Lonny R. Suko LONNY R. SUKO Senior United States District Judge 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 15

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