Cowan v. Colvin (previously Astrue)
Filing
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ORDER Granting (ECF No 14 ) Plaintiff's Motion for Summary Judgment and Remanding for Additional Proceedings. Signed by Magistrate Judge John T. Rodgers. (LS, Courtroom Deputy)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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8 IVY L. COWAN,
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No. CV-13-0051-JTR
Plaintiff,
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v.
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12 CAROLYN W. COLVIN,
13 Commissioner of Social Security,
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ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT AND REMANDING
FOR ADDITIONAL PROCEEDINGS
Defendant.
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BEFORE THE COURT are Cross-Motions for Summary Judgment. ECF
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No. 14, 21. Attorney Dana C. Madsen represents Ivy L. Cowan (Plaintiff); Special
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Assistant United States Attorney Summer Stinson represents the Commissioner of
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Social Security (Defendant). The parties have consented to proceed before a
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magistrate judge. ECF No. 6. After reviewing the administrative record and briefs
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filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary
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Judgment, DENIES Defendant’s Motion for Summary Judgment, and remands the
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matter to the Commissioner for additional proceedings pursuant to 42 U.S.C. §
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405(g).
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JURISDICTION
Plaintiff protectively filed an application for Supplemental Security Income
Benefits on August 11, 2010, alleging disability since August 11, 2010, due to
ORDER GRANTING PLAINTIFF’S MOTION . . . - 1
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lower back degenerative disk disease. Tr. 167, 181. The application was denied
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initially and upon reconsideration. Administrative Law Judge (ALJ) R.J. Payne
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held a hearing on October 3, 2011, Tr. 44-100, and issued an unfavorable decision
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on October 14, 2011, Tr. 23-33. The Appeals Council denied review on December
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4, 2012. Tr. 1-6. The ALJ’s October 2011 decision became the final decision of
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the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. §
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405(g). Plaintiff filed this action for judicial review on January 31, 2013. ECF
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No. 1, 5.
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STATEMENT OF FACTS
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The facts of the case are set forth in the administrative hearing transcript, the
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ALJ’s decision, and the briefs of the parties. They are only briefly summarized
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here.
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Plaintiff was born on November 4, 1966, and was 43 years old on the
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alleged onset date, August 11, 2010. Tr. 167. She completed high school and also
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has about one year of training in basic computer skills from the Adult Education
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Center. Tr. 67-68. Plaintiff indicated she last worked from September 2005 to
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April 2006 doing paint touch up at a sheet metal fabrication company. Tr. 68-69.
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That job reportedly ended as a result of her being laid off. Tr. 68, 70. Plaintiff
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indicated in her “Disability Report” that she stopped working at that time because
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she was “a full time housewife.” Tr. 181.
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Plaintiff testified at the administrative hearing that she hurt her back in 2003
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while working at a daycare and is currently unable to work due to back pain and
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numbness in her legs. Tr. 71, 78. Plaintiff further stated she has difficulty with
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sleep at night due to back pain, Tr. 77-78, and has constant headaches, Tr. 87. She
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also reported mental impairments of depression, anxiety and severe anger. Tr. 91.
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Plaintiff testified that while she has tried marijuana in the past for her migraines
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and obtained a medical marijuana card at one point, she did not use marijuana on a
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regular basis. Tr. 94.
ORDER GRANTING PLAINTIFF’S MOTION . . . - 2
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Margaret Moore, Ph.D., testified as a medical expert at the hearing held on
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October 3, 2011. Tr. 54-65. Dr. Moore noted Plaintiff did not have a history of
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mental health treatment1 and indicated the record reflected the cluster of diagnoses
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related to depression, anxiety, personality disorder and substance abuse. Tr. 58.
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She testified the record reflected fairly regular marijuana use and a history of other
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kinds of substance abuse and indicated that was “part of that same cluster of folks
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who instead of developing coping skills, they move towards drugs or alcohol or
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both to help them through the rough times.” Tr. 61. Dr. Moore stated that “by and
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large, I see someone who is dysthymic and dependent and kind of stuck in that
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role.” Tr. 61. She opined that Plaintiff’s mental health impairments were not
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severe enough to meet or equal a listings impairment.2 Tr. 61-62. She testified
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that Plaintiff had no limitations on activities of daily living and was mildly to
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moderately limited in maintaining social functioning and maintaining
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concentration, persistence and pace. Tr. 63.
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With respect to other medical professionals of record, Dr. Moore referred to
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Dr. Jackline’s consultative exam as “rather unusual” and criticized Dr. Jackline for
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endorsing virtually every symptom proposed to him by Plaintiff. Tr. 60, 62. With
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regard to the reports of Drs. Dalley and Greene, Dr. Moore indicated she found the
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narrative sections of those evaluations were more helpful in formulating an
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understanding of Plaintiff’s condition than the boxes checked on those reports. Tr.
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65.
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However, at the time of the hearing, Plaintiff had received mental health
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treatment and counseling at the CHAS Clinic in Spokane, Washington. Tr. 55,
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345-361.
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Plaintiff’s counsel stipulated at the administrative hearing that no listing
had been met or equaled in this case. Tr. 99.
ORDER GRANTING PLAINTIFF’S MOTION . . . - 3
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ADMINISTRATIVE DECISION
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The ALJ found that Plaintiff had not engaged in substantial gainful activity
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since August 11, 2010, the application date. Tr. 25. The ALJ determined, at step
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two, that Plaintiff had the following severe impairments: low back pain,
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degenerative disc disease, depression, posttraumatic stress disorder, borderline
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personality disorder, and anxiety. Tr. 25. At step three, the ALJ found Plaintiff’s
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severe impairments did not meet or medically equal a listed impairment. Tr. 25.
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The ALJ assessed Plaintiff’s RFC and determined she could perform light exertion
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level work with the following limitations: she could occasionally climb ladders,
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ropes and scaffolds; could occasionally stoop and crouch; and would have
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occasional but not frequent difficulty maintaining attention and concentration for
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extended periods of time, getting along with coworkers or peers without distracting
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them or exhibiting behavioral extremes, responding appropriately to changes in the
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work setting, and establishing realistic goals or making plans independently of
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others. Tr. 28.
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At step four, the ALJ concluded Plaintiff was able to perform her past
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relevant work as a Powder Coat Worker. Tr. 32. Alternatively, at step five, the
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ALJ found that, considering Plaintiff’s age, education, work experience and RFC,
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Plaintiff was able to perform work existing in significant numbers in the national
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economy. Tr. 32-33. The ALJ thus determined that Plaintiff was not under a
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disability within the meaning of the Social Security Act at any time from August
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11, 2010, the application date, through the date of the ALJ’s decision, October 14,
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2011. Tr. 29.
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STANDARD OF REVIEW
In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the Court set
out the standard of review:
A district court’s order upholding the Commissioner’s denial of benefits is
reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The
ORDER GRANTING PLAINTIFF’S MOTION . . . - 4
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decision of the Commissioner may be reversed only if it is not supported by
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substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d
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1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a
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mere scintilla, but less than a preponderance. Id. at 1098. Put another way,
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substantial evidence is such relevant evidence as a reasonable mind might accept
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as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401
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(1971). If the evidence is susceptible to more than one rational interpretation, the
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Court may not substitute its judgment for that of the Commissioner. Tackett, 180
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F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599
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(9th Cir. 1999).
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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,
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although deference is owed to a reasonable construction of the applicable statutes.
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McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000).
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It is the role of the trier of fact, not this Court, to resolve conflicts in
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evidence. Richardson, 402 U.S. at 400. If evidence supports more than one
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rational interpretation, the Court may not substitute its judgment for that of the
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Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579
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(9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will
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still be set aside if the proper legal standards were not applied in weighing the
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evidence and making the decision. Brawner v. Secretary of Health and Human
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Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to
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support the administrative findings, or if conflicting evidence exists that will
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support a finding of either disability or non-disability, the Commissioner’s
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determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th
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Cir. 1987).
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ORDER GRANTING PLAINTIFF’S MOTION . . . - 5
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SEQUENTIAL EVALUATION PROCESS
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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); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one
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through four, the burden of proof rests upon the claimant to establish a prima facie
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case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This
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burden is met once a claimant establishes that a physical or mental impairment
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prevents him from engaging in his previous occupation. 20 C.F.R. §§
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404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the
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ALJ proceeds to step five, and the burden shifts to the Commissioner to show that
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(1) the claimant can make an adjustment to other work; and (2) specific jobs exist
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in the national economy which claimant can perform. Batson v. Commissioner of
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Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make
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an adjustment to other work in the national economy, a finding of “disabled” is
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made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v).
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ISSUES
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The question presented is whether substantial evidence exists to support the
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ALJ’s decision denying benefits and, if so, whether that decision is based on
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proper legal standards.
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Plaintiff contends the ALJ erred because she is more limited from a
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psychological standpoint than what was determined by the ALJ. ECF No. 14 at 6.
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With respect to her psychological limitations, Plaintiff specifically argues the ALJ
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failed to properly consider the opinions of examining medical professionals and
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instead relied only on the testimony of non-examining, non-treating medical
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professionals. ECF No. 14 at 6-11. Plaintiff further asserts the ALJ erred at step
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four of the sequential evaluation process by failing to call a vocational expert to
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discuss her non-exertional impairments. ECF No. 14 at 11.
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ORDER GRANTING PLAINTIFF’S MOTION . . . - 6
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DISCUSSION
A.
Medical Evidence
Plaintiff argues the ALJ erred by giving significant weight to the opinions of
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non-examining, non-treating medical professionals and failing to accord proper
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weight to the opinions of examining medical professionals regarding Plaintiff’s
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mental condition. ECF No. 14 at 6-11.
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In disability proceedings, an examining physician’s opinion is given more
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weight than that of a non-examining physician. Benecke v. Barnhart, 379 F.3d
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587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If the
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examining physician’s opinions are not contradicted, they can be rejected only
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with clear and convincing reasons. Lester, 81 F.3d at 830. If contradicted, the
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opinion can only be rejected for “specific” and “legitimate” reasons that are
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supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 1035,
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1043 (9th Cir. 1995). However, the Ninth Circuit has held that “[t]he opinion of a
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nonexamining physician cannot by itself constitute substantial evidence that
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justifies the rejection of the opinion of either an examining physician or a treating
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physician.” Lester, 81 F.3d at 830. An ALJ’s decision to reject the opinion of a
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treating or examining physician may be based in part on the testimony of a non-
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examining medical advisor, but the ALJ must also have other evidence to support
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the decision such as laboratory test results, contrary reports from examining or
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treating physicians, or testimony from the claimant that was inconsistent with the
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physician’s opinion. See Andrews, 53 F.3d at 1042-1043.
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On August 5, 2010, Plaintiff was first examined by William Greene, Ph.D.
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Tr. 239-251. It was noted that Plaintiff reported no history of psychiatric
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hospitalizations and no history of counseling. Tr. 239. Dr. Greene marked on a
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check-box form that Plaintiff was severely limited in her ability to exercise
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judgment and make decisions and was markedly limited in her abilities to relate
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appropriately to co-workers and supervisors and to maintain appropriate behavior
ORDER GRANTING PLAINTIFF’S MOTION . . . - 7
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in a work setting. Tr. 242-243. He wrote that Plaintiff’s personal life is in such
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turmoil at the present time (her grandson had recently died, her son was being
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accused of the death through abuse and shaken baby syndrome, and she was
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currently in the process of divorce from her third husband) that counseling was
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recommended to help her focus and make more structured plans for her future. Tr.
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239, 243. “Whether it would improve her ability to work would depend on
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[Plaintiff’s] desire to turn her life around.” Tr. 243. Dr. Greene opined that her
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impairments were expected to last a maximum of six months,3 and he expected
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Plaintiff would be able to return to work when her symptoms resolved. Tr. 244-
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245.
On December 15, 2010, William H. Jackline, Ed.D., NCSP, examined
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Plaintiff. Tr. 268-275. He determined that Plaintiff’s ability to understand,
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remember and follow simple directions was adequate; ability to understand,
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remember and follow increasingly lengthy, fast-paced and complex verbal
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information and directions was mildly to moderately impaired; abstract verbal
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reasoning skills were moderately impaired; ability to sustain her concentration and
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persist at a task was mildly to moderately impaired; social interactive skills were
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moderately impaired; and ability to independently and quickly adapt to changes
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within her environment was moderately impaired. Tr. 274. Dr. Jackline opined
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that Plaintiff’s prognosis for improving her current levels of psychological and
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social functioning appeared to be poor. Tr. 274.
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On December 16, 2010, state agency medical professional Dan Donahue,
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Ph.D., reviewed the record and filled out a mental residual functional capacity
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assessment form and psychiatric review technique form. Tr. 276-293. Dr.
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Donahue found no marked limitations, but noted moderate limitations in Plaintiff’s
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Dr. Greene’s assessed mental limitations would thus not meet the duration
requirements of the Act (one year). 42 U.S.C. § 1382c(a)(3)(A).
ORDER GRANTING PLAINTIFF’S MOTION . . . - 8
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abilities to understand and remember detailed instructions, carry out detailed
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instructions, maintain attention and concentration for extended periods, complete a
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normal workday and workweek without interruptions from psychologically based
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symptoms and to perform at a consistent pace without an unreasonable number and
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length of rest periods, interact appropriately with the general public, and respond
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appropriately to changes in the work setting. Tr. 276-277. With respect to
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functional limitations, Dr. Donahue determined Plaintiff had mild restrictions of
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activities of daily living, moderate difficulties in maintain social functioning,
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moderate difficulties in maintaining concentration, persistence and pace, and one
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or two episodes of decompensation. Tr. 290. He opined that Plaintiff had an
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adequate ability in the areas of understanding and memory for simple types of
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work, her ability to sustain concentration, persistence and pace was adequate for
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simple, basic types of work related tasks, and, although she did have some
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difficulty in social areas, those social difficulties would not preclude successful
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work at a basic level. Tr. 278. State agency medical professional Sharon
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Underwood, Ph.D., reviewed the record on February 16, 2011, and affirmed Dr.
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Donahue’s conclusions. Tr. 303.
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Dr. Greene examined Plaintiff a second time on March 9, 2011. Tr. 305-
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316. Dr. Greene noted several moderate and marked functional limitations, Tr.
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307-308, but again indicated Plaintiff’s impairments were only expected to last a
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maximum of six months, Tr. 308. He opined that counseling, medication and some
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classes for homemakers returning to the workforce would be helpful and that
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Plaintiff should be able to return to work when her symptoms resolved. Tr. 308-
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309. Dr. Greene recommended Plaintiff apply for work at Goodwill Industries.
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Tr. 308-309.
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On August 23, 2011, Mahlon Dalley, Ph.D., examined Plaintiff. Tr. 318-
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325. It was noted that Plaintiff reported she smoked marijuana on a nightly basis
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to reduce pain and help with migraines. Tr. 320, 323. Dr. Dalley noted several
ORDER GRANTING PLAINTIFF’S MOTION . . . - 9
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moderate and marked functional limitations and “highly recommended” counseling
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to deal with her past issues and current anxiety/depression issues. Tr. 321. He
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opined that Plaintiff’s depressive and PTSD symptoms, features of her personality
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disorder, and health concerns were likely to interfere with her ability to be
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successful in a normal employment position and estimated Plaintiff would be work
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impaired for 12 months. Tr. 322, 325.
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Dr. Moore, who had never treated or examined Plaintiff, testified as a
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medical expert at the hearing held on October 3, 2011. Tr. 54-65. Dr. Moore
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noted Plaintiff did not have a history of mental health treatment, Tr. 58, and opined
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that Plaintiff had no limitations on activities of daily living and was mildly to
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moderately limited in maintaining social functioning and maintaining
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concentration, persistence and pace, Tr. 63. The medical advisor criticized Dr.
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Jackline’s consultative exam, Tr. 60, 62, and indicated the narrative sections of the
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reports of Drs. Dalley and Greene were more helpful than the conclusions noted in
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the check boxes of those reports, Tr. 65.
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In this case, the ALJ accorded Dr. Moore’s opinion controlling weight. Tr.
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31. The ALJ indicated that while Plaintiff reported problems getting along with
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people, Dr. Jackline’s examination revealed that Plaintiff had at least five good
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friends with whom she watches movies or text messages.4 Tr. 27, 270. With
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respect to concentration, persistence and pace, the ALJ noted that Dr. Jackline
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indicated Plaintiff had shown an adequate ability to understand, remember and
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follow simple instructions. Tr. 27, 274. The ALJ ultimately adopted the testimony
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of the medical expert and the state agency reviewer opinions to find that Plaintiff
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Dr. Jackline’s report actually states that Plaintiff “related that she had at
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least 5 friends,” but had only one really good friend she would see three or four
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days a week. Tr. 270, 273. Moreover, Dr. Jackline concluded that Plaintiff’s
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social interactive skills were moderately impaired. Tr. 274.
ORDER GRANTING PLAINTIFF’S MOTION . . . - 10
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had only mild to moderate difficulties in social functioning and mild to moderate
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difficulties in concentration, persistence and pace. Tr. 26-27. This level of
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concentration, persistence and pace and social functioning is apparently reflected
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in the ALJ’s RFC assessment which determined that Plaintiff would have only
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occasional difficulty in maintaining attention and concentration, getting along with
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coworkers and peers, responding appropriately to changes in the work setting, and
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establishing realistic goals or making plans independently. Tr. 28.
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In this case, the ALJ accorded “great weight” to the testimony of the medical
expert and the state agency reviewing medical professionals and utilized the
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opinions of these nonexamining doctors to discount the opinions of examining
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medical providers Drs. Greene and Dalley. Tr. 31. However, as noted above,
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“[t]he 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. The ALJ also failed to
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specifically identify what aspects of the opinions of Drs. Greene and Dalley are
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discounted and did not provide proper rationale for limiting the weight given to
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those doctors. Tr. 31. Consequently, the ALJ’s rejection of the opinions of Drs.
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Greene and Dalley is not supported by substantial evidence and is legally deficient.
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Based on the inadequacy of the reasons given by the ALJ for rejecting the opinions
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of Drs. Greene and Dalley, remand for reconsideration of those opinions is
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necessary in this case.
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B.
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Plaintiff has additionally contested the ALJ’s step four determination in this
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Step Four Determination
case. ECF No. 14 at 11.
A claimant will be found not disabled when it is determined that she retains
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the RFC to perform either the actual functional demands and job duties of a
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particular past relevant job, or the functional demands and job duties of the
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occupation as generally required by employers throughout the national economy.
ORDER GRANTING PLAINTIFF’S MOTION . . . - 11
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SSR 82-61. “If a claimant shows that he or she cannot return to his or her previous
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job, the burden of proof shifts to the Secretary to show that the claimant can do
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other kinds of work.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988).
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Therefore, the burden shifts to the ALJ to identify specific jobs existing in
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substantial numbers in the national economy that a claimant can perform despite
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her identified limitations only after a claimant has established a prima facie case of
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disability by demonstrating she cannot return to her former employment. Hoffman
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v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986).
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As determined above, the ALJ erred in this case by failing to provide proper
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rationale for rejecting the opinions of examining medical professionals regarding
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Plaintiff’s psychological limitations. Supra. Accordingly, this matter shall be
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remanded for additional proceedings.
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On remand, the ALJ shall reconsider the opinions of Drs. Greene and
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Dalley. The ALJ shall reassess Plaintiff’s psychological RFC, taking into
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consideration the opinions of Drs. Greene and Dalley, as well as all other medical
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evidence of record relevant to Plaintiff’s claim for disability benefits. Prior to a
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new administrative hearing, Plaintiff shall additionally undergo a new consultative
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psychological examination. At the new administrative hearing, the ALJ shall elicit
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the testimony of a medical expert to assist the ALJ in formulating a new
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psychological RFC determination, and the new RFC assessment shall be presented
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to a vocational expert to determine if Plaintiff is capable of performing her past
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relevant work or any other work existing in sufficient numbers in the national
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economy.
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CONCLUSION
The Court has the discretion to remand the case for additional evidence and
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finding or to award benefits. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.
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1996). 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
ORDER GRANTING PLAINTIFF’S MOTION . . . - 12
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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, further
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development is necessary to remedy defects and for a proper determination to be
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made. Accordingly, IT IS ORDERED:
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1.
Plaintiff’s Motion for Summary Judgment, ECF No. 14, is
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GRANTED, and the matter is REMANDED to the Commissioner for additional
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proceedings consistent with this Order.
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2.
Defendant’s Motion for Summary Judgment, ECF No. 21, is
DENIED.
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3.
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 in favor of
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Plaintiff, and the file shall be CLOSED.
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DATED December 3, 2013.
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_____________________________________
JOHN T. RODGERS
UNITED STATES MAGISTRATE JUDGE
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ORDER GRANTING PLAINTIFF’S MOTION . . . - 13
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