Brobyskov v. Colvin

Filing 21

ORDER reversing and remanding case by Judge Richard A Jones. (RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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07 KARYN BROBYSKOV,
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Plaintiff,
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v.
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CAROLYN W. COLVIN, Acting
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Commissioner of Social Security,
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Defendant.
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____________________________________ )

CASE NO. C14-1552-RAJ

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL

Plaintiff Karyn Brobyskov proceeds through counsel in her appeal of a final decision

14 of the Commissioner of the Social Security Administration (Commissioner).

The

15 Commissioner denied Plaintiff’s application for Disability Insurance Benefits (DIB) after a
16 hearing before an Administrative Law Judge (ALJ). Having considered the ALJ’s decision,
17 the administrative record (AR), and all memoranda of record, this matter is REVERSED and
18 REMANDED for further proceedings.
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FACTS AND PROCEDURAL HISTORY
Plaintiff was born on XXXX, 1959. 1 She completed high school and one year of

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Plaintiff’s date of birth is redacted back to the year of birth in accordance with Federal Rule
of Civil Procedure 5.2(a) and the General Order of the Court regarding Public Access to Electronic

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
PAGE -1

01 college. (AR 377.) She has worked as a waitress, an automotive accessories salesperson, a
02 flagger, and an industrial cleaner. (AR 20, 526.)
03

Plaintiff applied for DIB and Supplemental Security Income (SSI) on September 14,

04 2010.

(AR 232-44.)

The applications were denied.

(AR 65-76, 77-88.)

Upon

05 reconsideration, Plaintiff was granted SSI with an onset date established as September 14,
06 2010, which was her filing date. (AR 130.) But, because her date of last insured (DLI) was
07 December 31, 2009, her DIB was again denied. (AR 102-109.) Plaintiff timely requested a
08 hearing. (AR 167-68.)
09

On April 25, 2012, ALJ Ilene Sloan held a hearing in Seattle, Washington taking

10 testimony from Plaintiff, and a vocational expert. (AR 30-62.) On May 11, 2012, the ALJ
11 issued a decision finding that Plaintiff was not disabled prior to her DLI. (AR 11-22.) The
12 Appeals Council denied review. (AR 1-5.) Plaintiff timely appealed. The parties agreed to a
13 stipulated remand.

(AR 577.)

The Appeals Council vacated the ALJ’s decision and

14 remanded for further proceedings. (AR 590-92.)
15

ALJ Sloan conducted a new hearing on July 16, 2014, but heard no additional

16 testimony. (AR 515, 536-40.) On July 24, 2014, the ALJ issued a decision once again
17 finding Plaintiff not disabled before her DLI. (AR 515-528.) This decision is now the final
18 decision of the Commissioner.
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JURISDICTION
The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. §

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Case Files, pursuant to the official policy on privacy adopted by the Judicial Conference of the United
22 States.

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
PAGE -2

01 405(g).
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DISCUSSION
The Commissioner follows a five-step sequential evaluation process for determining

04 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it
05 must be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had
06 not engaged in substantial gainful activity since her amended onset date of May 1, 2009, and
07 established her DLI as December 31, 2009. (AR 518.) At step two, it must be determined
08 whether a claimant suffers from a severe impairment. The ALJ found Plaintiff’s cognitive
09 disorder NOS, degenerative arthritis of the left knee, status-post strokes, and epilepsy to be
10 severe impairments. (AR 518.) Step three asks whether a claimant’s impairments meet or
11 equal a listed impairment. The ALJ found that Plaintiff’s impairments did not meet or equal
12 the criteria of a listed impairment. (AR 518-20.)
13

If a claimant’s impairments do not meet or equal a listing, the Commissioner must

14 assess residual functional capacity (RFC) and determine at step four whether the claimant has
15 demonstrated an inability to perform past relevant work. The ALJ found Plaintiff capable of
16 performing medium work with additional limitations: she would need to take seizure
17 precautions including avoiding exposure to moving parts or blade, unprotected heights, large
18 bodies of water, vats, and liquids, and use of motorized vehicle. She would have the ability to
19 understand, remember, and carry out simple one and two-step instructions, involving no more
20 than SVP 2. She can maintain concentration and attention for two hour intervals before
21 requiring a 15 minute break to refocus. She can accept instruction from supervisors and work
22 with co-workers. However, dealing with the general public should not be an essential element

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
PAGE -3

01 of the task, although incidental contact would not be precluded. (AR 520.) With that
02 assessment, the ALJ found Plaintiff able to unable to perform her past relevant work.

(AR

03 526.)
04

If a claimant demonstrates an inability to perform past relevant work, the burden shifts

05 to the Commissioner to demonstrate at step five that the claimant retains the capacity to make
06 an adjustment to work that exists in significant levels in the national economy. Based on
07 testimony from a vocational expert, the ALJ found Plaintiff able to perform the representative
08 occupations of hand packager, small products assembler, and inspector/hand packager. (AR
09 527.) Therefore, the ALJ found Plaintiff not disabled prior to her DLI of December 31, 2009.
10 (AR 528.)
11

This Court’s review of the ALJ’s decision is limited to whether the decision is in

12 accordance with the law and the findings supported by substantial evidence in the record as a
13 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means
14 more than a scintilla, but less than a preponderance; it means such relevant evidence as a
15 reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881
16 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which
17 supports the ALJ’s decision, the Court must uphold that decision. Thomas v. Barnhart, 278
18 F.3d 947, 954 (9th Cir. 2002).
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Plaintiff argues the ALJ erred by (1) improperly evaluating the opinion of examining

20 physician Dan Phan, M.D., (2) failing to properly determine the onset date of her disability,
21 (3) improperly discounting her opinion, and (4) rejecting lay testimony without germane
22 reasons. Dkt 17-1 at 1. According to Plaintiff, these errors should be remedied by a remand

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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01 for payment of benefits, not additional proceedings. Dkt. 17-1 at 18. The Commissioner
02 argues that the ALJ’s decision is free of legal error, supported by substantial evidence and
03 should be affirmed. Dkt. 19 at 13.
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Medical Evidence
Plaintiff contends that the ALJ failed to properly evaluate the opinion of examining

06 physician Dan V. Phan, M.D. Dr. Phan evaluated Plaintiff in May 2009. (AR 384-86.) In
07 addressing Plaintiff’s functional limitations, Dr. Phan stated, “[w]ith the knee problem, she
08 should avoid works requiring prolonged walking, and frequent kneeling and squatting.” (AR
09 386.) In her first decision, the ALJ gave this opinion “great weight” and assessed the RFC at
10 the medium exertion level.

(AR 16-17.)

The Appeals Council determined that this

11 assessment was problematic:
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The Administrative Law Judge assigned “great weight” to the opinion of Dan
V. Phan, M.D. However, the Administrative Law Judge found the claimant
capable of performing medium work despite Dr. Phan’s opinion that the
claimant should avoid prolonged walking due to her left knee impairment.
“Medium” exertional work requires standing or walking, off and on, for a total
of approximately six hours in an eight-hour workday. (AR 590.)

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The Appeals Council directed the ALJ to resolve this inconsistency on remand. (AR 590.)
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In her second decision, the ALJ accorded “partial” weight to Dr. Phan’s opinion and
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acknowledged his assessment that Plaintiff needed to avoid prolonged walking. (AR 524.)
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According to the ALJ, “[w]hile the claimant may not be able to stand and/or walk for an
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entire 8-hour day, I find that Dr. Phan’s examination findings support a conclusion that she
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could stand and/or walk for 6 hours in an 8-hour workday.” (AR 524.) In support of this
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finding, the ALJ noted that Dr. Phan’s examination showed full flexion and extension of the
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ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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01 knee; no redness, swelling, or deformity; full motor strength, normal gait, and no need for an
02 assistive device; Plaintiff could walk about one mile, and denied any limitations on standing.
03 (AR 524.)
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The ALJ only gave “partial” weight to Dr. Phan’s opinion in this decision, but failed

05 to provide any reason to discount the opinion. This is error. The ALJ must provide “clear and
06 convincing” reasons for rejecting the uncontradicted opinion of a treating physician. Lester v.
07 Chater, 81 F.3d 821, 830 (9th Cir. 1996). Even when a treating physician’s opinion is
08 contradicted, that opinion “can only be rejected for specific and legitimate reasons that are
09 supported by substantial evidence in the record.” Id. at 830-31. Here, the ALJ failed to
10 provide any reason for giving only “partial” weight to Dr. Phan’s opinion.
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Furthermore, the ALJ once again found Plaintiff capable of medium work without

12 reconciling that exertion level with Dr. Phan’s opinion. Medium exertion “require[s] the
13 worker to stand or walk most of the time.” Social Security Ruling 83-14. The ALJ provides
14 no explanation as to how an opinion that specifically noted the need to avoid “prolonged”
15 walking supports a medium exertional level requiring six hours of walking/standing. SSR 8316 10. The Commissioner urges the Court that “because medium work involves alternating
17 between walking and standing ‘off and on’ for six hours a day, Plaintiff has not shown that it
18 actually requires ‘prolonged walking.’” Dkt. 19 at 3. But, the ALJ did not differentiate
19 between standing and walking in the RFC. Without additional limitations, “medium exertion”
20 could include a majority of walking over the course of six hours, which would be inconsistent
21 with Dr. Phan’s opinion. Thus, ALJ failed to resolve the inconsistency highlighted by the
22 Appeals Council, and once again established an RFC seemingly at odds with Plaintiff’s

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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01 assessed capabilities. This results in an RFC that may not properly reflect Plaintiff’s true
02 capacity and undermines the ALJ’s step five finding that Plaintiff can perform gainful work.
03

The Commissioner bears the burden at step five to show that Plaintiff can perform

04 gainful work. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). To meet this burden, the
05 ALJ solicited testimony from a VE through hypothetical questions. Id. at 1100-1101, (AR 5406 55.) “Hypothetical questions posed to the vocational expert must set out all the limitations
07 and restrictions of the particular claimant.” Embrey v. Bowen, 849 F.3d 418, 422-23 (9th Cir.
08 1988). When the hypothetical is not supported by the record and does not include all the
09 limitations, the testimony of the VE has no evidentiary value. Id. In this case, the VE was
10 posed a hypothetical with medium exertion level. (AR 54-55.) Because the VE identified
11 jobs compatible with this RFC, which may not fully account for Plaintiff’s need to avoid
12 prolonged walking, the testimony has no evidentiary value and the case must be reversed.
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Onset Date
To receive DIB, a claimant “must prove that she was either permanently disabled or

15 subject to a condition which became so severe as to disable her prior to the date upon which
16 her disability insured status expires.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995).
17 In this case, Plaintiff’s DLI was December 31, 2009. (AR 65.) The ALJ found that Plaintiff
18 “retained the cognitive ability to perform simple, 1 to 2-step tasks before December 31,
19 2009,” and she was not disabled prior to her DLI. (AR 526, 528.) Plaintiff alleges legal error
20 because the ALJ failed to call a medical expert to establish her onset date. The Court agrees.
21

The ALJ relied heavily upon a May 2009 psychological evaluation conducted by

22 Rodger I. Meinz, Ph.D. (AR 525, 376-82.) Dr. Meinz reported that Plaintiff was anxious,

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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01 fearful, and embarrassed about her memory problems. (AR 379.) Plaintiff was oriented, but
02 had to look at her referral sheet to remember the day of the month. (AR 379.) She could
03 recall three out of three objects after five minutes; recall six digits forward but only three
04 digits backward; and slowly completed serial threes from 20 by using her fingers to count.
05 (AR 380.) Her memory scores ranged between average, borderline, and extremely low. (AR
06 380.) These scores “corroborate her self-report” of poor memory since suffering the two
07 strokes. (AR 381.) Dr. Meinz concluded that Plaintiff “might be capable of light bench
08 assembly…where any memory problems could be accommodated by the routine nature of the
09 work. Whether she could perform at a competitive rate at such work is unknown.” (AR 382.)
10 The ALJ summarized Dr. Meinz’ opinion:
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Dr. Meinz opined in May
absorb and perform simple
that the claimant might be
memory problem could be
(AR 525.)

2009 that the claimant could retain the ability to
sets of auditory and visual data. Dr. Meinz added
capable of light bench assembly work, where her
accommodated by the routine nature of her work.

14 The ALJ accorded this opinion significant weight because Dr. Meinz conducted psychometric
15 and mental status testing in addition to an interview. (AR 525.)
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The ALJ accepted Dr. Meinz’ opinion over Plaitniff’s treating physician, Sam

17 Eggertsen, M.D. Dr. Eggertsen began seeing Plaintiff in November 2009. (AR 489.) He
18 completed a physical evaluation on January 25, 2010 in which he asserted that her main issues
19 were cognitive. (AR 425-28.) He opined that her cognitive deficits are “marked” and rated
20 them as severe. (AR 427.) He arrived at this conclusion based on results showing her unable
21 to remember three objects after three minutes, draw a clock face accurately, and subtract
22 seven from one hundred. (AR 426.) The ALJ gave minimal weight to Dr. Eggertsen’s

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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01 opinion because he based it on an abridged mental status examination. (AR 525.)
02

Generally, medical opinions of treating physicians are accorded special weight.

03 Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). “The ALJ must either accept the
04 opinions of…treating physicians or give specific and legitimate reasons for rejecting them.”
05 Id. at 422 n.3. Here, the ALJ gave greater weight to Dr. Meinz’ opinion, because he
06 conducted significantly more testing and “considered claimant’s work history and vocational
07 certifications after her last stroke.” (AR 525.) But, Dr. Eggertsen conducted objective
08 testing, in the form of the abbreviated mental status exam, and provided the results. Dr.
09 Eggertsen gave his assessment and specifically noted the objective results that led to his
10 conclusions. (AR 425-28.)
Dr. Eggertsen gave his opinion eight months after Dr. Meinz opined that Plaintiff

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12 could possibly perform light bench work, and less than one month after her DLI. (AR 382,
13 425.) Given the progressive nature of Plaintiff’s dementia and the proximity in time to her
14 DLI, Dr. Eggertsen’s assessment was the most relevant to her actual functional level at her
15 DLI. The timing of the opinion and the nature of the treating physician relationship give
16 weight to Dr. Eggertsen’s assessment.
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As a result of the opinions given by Drs. Meinz and Eggertsen, Plaintiff’s onset date is

18 unclear. When evidence of the onset of mental impairment is ambiguous, “the ALJ should
19 determine the date based on an informed inference. Such an inference is not possible without
20 the assistance of a medical expert.” Morgan v. Sullivan, 945 F.2d 1079, 1082-83 (9th Cir.
21 1991).

Under Social Security Regulation (“SSR”) 83-20, determination of an onset date

22 requires a “legitimate medical basis” which is established by calling a medical advisor at the

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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01 hearing.
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How long the disease may be determined to have existed at a disabling level of
severity depends on an informed judgment of the facts in a particular case.
This judgment, however, must have a legitimate medical basis. At a hearing,
the administrative law judge (ALJ) should call on the services of a medical
advisor when onset must be inferred.

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SSR 83-20 has been interpreted to require a medical advisor if the “medical evidence is not
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definite concerning the onset date and medical inferences need to be made.” Delorme v.
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Sullivan, 924 F.2d 841, 848 (9th Cir. 1991).

In such cases, the ALJ must call a medical

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expert to assist in determining the onset date. Armstrong v. Comm’r of Soc. Sec. Admin., 160
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F.3d 587, 590 (9th Cir. 1998).
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In this case, the onset date is unclear. In May 2009, Dr. Meinz opined that Plaintiff
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“might” be capable of light bench assembly, but was unsure if she could perform at a
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competitive rate. (AR 382.) By January 2010, less than one month after DLI, Plaintiff’s
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treating physician found her to have severe cognitive deficiencies. In a case, such as this,
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where onset date is ambiguous but critical to the claim, the ALJ was required to call a medical
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expert to make the necessary medical inferences and establish the onset date. Failure to
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obtain assistance from a medical expert was legal error. Because onset date is central to the
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DIB determination, the error in establishing that date was harmful and requires reversal.
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Plaintiff’s Credibility
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The ALJ found that Plaintiff’s statements concerning the intensity, persistence, and
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limiting effects of her symptoms were not entirely credibility. (AR 521.) The ALJ cited the
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Plaintiff’s activities of daily living, work history, and lack of objective medical evidence as
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ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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01 reasons to discount her testimony. (AR 522-23.) Plaintiff contends that the ALJ improperly
02 rejected her testimony.
03

The ALJ is responsible for determining credibility. Andrews v. Shalala, 53 F.3d

04 1035, 1039 (9th Cir. 1995). Unless there is affirmative evidence showing that the claimant
05 is malingering, the ALJ must provide clear and convincing reasons for rejecting the
06 evidence. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). The ALJ “may not discredit
07 the claimant’s testimony as to subjective symptoms merely because they are unsupported by
08 objective evidence.” Id. However, “[in] determining credibility, an ALJ may engage in
09 ordinary techniques of credibility evaluation, such as considering claimant's reputation for
10 truthfulness and inconsistencies in claimant's testimony.” Burch v. Barnhart, 400 F.3d 676,
11 680 (9th Cir. 2005). Additionally, the ALJ may consider a claimant’s work record and
12 observations of physicians and other third parties regarding the nature, onset, duration, and
13 frequency of symptoms. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).
The ALJ stated that Plaintiff’s activities of daily living prior to her DLI are not

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15 consistent with her allegations of disability. “[T]he claimant told Dr. Phan and Dr. Meinz that
16 she lived alone and that she was able to independently perform her activities of daily living,
17 including showering daily, preparing her own meals, and keeping her apartment clean.” (AR
18 523.)

Plaintiff contends that these activities do not support an adverse credibility

19 determination.
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“Daily activities may be grounds for an adverse credibility finding ‘if a claimant is

21 able to spend a substantial part of his day engaged in pursuits involving the performance of
22 physical functions that are transferable to a work setting.’” Orn v. Mastrue, 495 F.3d 625,

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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01 639 (9th Cir. 2007)(citing Fair v. Bowen, 885 F.2d 597, 603 (Cir. 9th 1989)). Daily activities
02 may also have bearing on credibility if they are inconsistent with claimed limitations.
03 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). In this case, Plaintiff’s ability to
04 perform the basic tasks of showering, preparing her meals, and keeping her house clean is not
05 inconsistent with her knee pain or mental impairments. Nor are these activities transferable to
06 a work setting. Orn, 495 F.3d at 639.
07

Furthermore, the ALJ mischaracterizes Plaintiff’s activities of daily living from the

08 period after her DLI. The ALJ found that “claimant’s more recent activities suggest that her
09 functioning was likely greater than alleged prior to her date last insured.” (AR 523.) The
10 ALJ elaborated:
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she reported living with a disabled friend, whom she helped get dressed and
reminded to take medications. She stated that she could care for her personal
hygiene and grooming, prepare simple meals, attends appointments, go out
alone, take the bus, and shop for groceries. At the hearing she testified that she
was able to do her own grocery shopping, but limited her shopping to one store
that was close to her home. She testified that she lives alone and is able to care
for herself and her apartment. (AR 523.)

15 But, this description of Plaintiff’s ability to care for herself omits several key details. For
16 example, Plaintiff limited her shopping to a single location because she knew how to walk to
17 that store and back and would not get lost. (AR 43.) At the store, she often had difficulty
18 remembering what she needed to purchase, so she would buy “a little bit of everything. Like
19 lots of soups.” (AR 43.)

She cooked only basic foods using the microwave because she

20 would forget that she had put food in the oven. (AR 41.) And, although Plaintiff took the bus,
21 she would become confused and need to call someone or get assistance from the bus driver.
22 (AR 42.) She would forget which bus she needed or get off at the wrong location. (AR 42.)

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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01

As seen by these examples, Plaintiff ability to perform basic activities was hampered

02 by her mental impairment. Her recent functioning does not demonstrate greater capacity prior
03 to her DLI. The ALJ’s finding that her ability to accomplish these activities negated her
04 credibility was not supported by substantial evidence in the record.
05

Similarly, the ALJ’s depiction of Plaintiff’s prior work history is unsupported by the

06 evidence in the record. The ALJ cited Plaintiff’s work history to discredit her testimony.
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[A]fter her second stroke, the claimant was able to return to substantial fanciful
activity as a sales person at Sears, where she worked from 1996 through
2002…She later worked at Labor Ready, doing temporary jobs as a flagger and
performing pickup and cleanup, from 2006 through 2008. At the hearing, she
testified that she was able to follow simple instructions and to perform simple
tasks without any issues when she worked at Labor Ready. Her struggles were
primarily with performing jobs that required her to follow and perform
complex instructions. (AR 523)

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But, this description of Plaintiff’s work history ignored that Plaintiff had difficulty performing
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and keeping several jobs. In 2003, she lost her long-time job at Sears automotive because she
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could not perform her tasks quickly enough, despite trying her hardest. (AR 40.) She was
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fired from a restaurant hostess position and a retail job because she could not remember
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important codes. (AR 39-40.) And when performing temporary work with Labor Ready,
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employers often sent her back because she became disoriented at job sites. (AR 38-39.) “I
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was just supposed to clean certain rooms before they got into another project of that room,
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and then I’d get lost in the room trying to get back to the main place we all met. And I’d just
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be wandering.”

(AR 39.) Plaintiff testified that she could perform the clean up tasks

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assigned, but anything more complicated and the employers “would get nervous” and send
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her back to Labor Ready. (AR 39, 47.) All of these employment struggles occurred prior to
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DISABILITY APPEAL
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01 Plaintiff’s DLI.

Rather than support the ALJ’s credibility determination, the record

02 demonstrates significant functional difficulties consistent with Plaintiff’s alleged disability.
03

Finally, the ALJ insinuated that the lack of objective medical evidence undermined

04 Plaintiff’s testimony. (AR 521-23.) But, as noted above, the ALJ “may not discredit the
05 claimant’s testimony as to subjective symptoms merely because they are unsupported by
06 objective evidence.”

Lester, 81 F.3d at 834.

Here, the ALJ’s reliance on Plaintiff’s

07 activities of daily living and work history is unsupported by the record. The dearth of
08 medical evidence is the only remaining reason to discount Plaintiff’s testimony and does not
09 provide legally sufficient reason to discredit Plaintiff. The ALJ failed to provide clear and
10 convincing reasons based on substantial evidence in the record to reject Plaintiff’s
11 testimony. Reversal is required.
12

Lay Witness Testimony

13

Plaintiff’s mother, Margaret Faltys, provided a third party function report in

14 November 2010 that detailed Plaintiff’s difficulties. (AR 312-19.) “Descriptions by friends
15 and family members in a position to observe a claimant's symptoms and daily activities have
16 routinely been treated as competent evidence.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th
17 Cir. 1987). A germane reason is required to reject such evidence. Dodrill v. Shalala, 12 F.3d
18

Plaintiff alleges that the ALJ improperly rejected this testimony because Plaintiff had

19 demonstrated a functional ability to work, and Ms. Faltys did not differentiate between
20 Plaintiff’s functioning before and after her DLJ. Dkt. 17-1 at 18. However, this argument
21 references the reasoning provided in the first ALJ decision, since vacated by the Appeals
22 Council. (AR 20, 590-92.) Plaintiff’s argument is inapplicable to the current decision.

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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01

Disposition

02

This case is rife with harmful errors requiring reversal. Plaintiff asserts that the proper

03 remedy is remand for award of benefits. The Court may remand for an award of benefits
04 where:
05

the record has been fully developed and further administrative proceedings
would serve no useful purpose; (2) the ALJ has failed to provide legally
sufficient reasons for rejecting evidence, whether claimant testimony or
medical opinion; and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the claimant disabled on
remand.

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08

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). The Court abuses its discretion by
09
remanding for further proceedings where the record establishes no basis for serious doubt that
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the claimant is in fact disabled. Id. at 1023. However, remand for award of benefits occurs in
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rare circumstances. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir.
12
2014).
13
Although this case has already been remanded once and has been pending for several
14
years, this is not the rare circumstance requiring remand for benefits. The main issue remains
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whether Plaintiff was disabled prior to her DLI. As discussed earlier, a medical expert is
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required when “medical evidence is not definite concerning the onset date and medical
17
inferences need to be made.” Delorme, 924 F.2d at 848. This Court is no more capable than
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the ALJ of making the required medical inferences necessary to properly establish Plaintiff’s
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onset date.
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The case must be remanded for further proceedings. On remand, the ALJ should take
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medical expert testimony to assist in the establishment of Plaintiff’s disability onset date.
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ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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01 Additionally, the ALJ should reconsider Dr. Phan’s opinion, give weight to Plaintiff’s
02 testimony, further develop the record as necessary, reassess the RFC, and proceed with steps
03 four and five of the sequential evaluation process as needed.
04
05

CONCLUSION
For the reasons set forth above, this matter is REVERSED and REMANDED for

06 further proceedings.
07

DATED this 27th day of July, 2015.

08

A

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The Honorable Richard A. Jones
United States District Judge

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