Randall v. Colvin

Filing 18

ORDER Reversing and Remanding the Commissioner's Decision by Judge Benjamin H. Settle. (TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 TRACEY K. RANDALL, 9 CASE NO. C16-05578 BHS Plaintiff, 10 ORDER REVERSING AND REMANDING THE COMMISSIONER’S DECISION v. 11 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 1 12 Defendant. 13 14 15 16 17 18 19 I. BASIC DATA Type of Benefits Sought: ( ) Disability Insurance (X) Supplemental Security Income Plaintiff’s: Sex: Male 20 1 Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for Carolyn W. Colvin as defendant in this suit. The Court directs the clerk to update 22 the docket, and all future filings by the parties should reflect this change. 21 ORDER - 1 1 Age: 39 2 Principal Disabilities Alleged by Plaintiff: Temporal lobe epilepsy, rheumatoid arthritis, degenerative disc disease/radiculopathy, attention deficit disorder, bipolar disorder, 3 depression, personality disorder, paranoia, seizures 4 Principal Previous Work Experience: Cook, mover, fast food worker, custodian, warehouse worker, and laborer 5 II. PROCEDURAL HISTORY—ADMINISTRATIVE 6 Before ALJ Joanne E. Dantonio: 7 Date of Hearing: September 9, 2015; hearing transcript AR 989-1043 8 Date of Decision: March 1, 2016 9 Appears in Record at: AR 961-80 10 Summary of Decision: 11 The claimant has not engaged in substantial gainful activity since 12 March 3, 2009, the application date. The claimant has the following severe impairments: attention deficit hyperactivity disorder 13 (“ADHD”), bipolar disorder, generalized anxiety disorder, personality disorder, and lumbar and cervical spine degenerative disc 14 disease. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of 15 the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. 16 The claimant has the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 416.967(b) including lifting 20 pounds occasionally and ten pounds frequently; never climbing ladders, ropes, or scaffolds; and only occasional stooping, kneeling, and crouching, but less than occasional crawling. The claimant should also avoid concentrated exposure to vibration and hazards. The claimant can perform simple, routine tasks with no public contact. He is capable of only occasional contact with coworkers that does not require teamwork. The claimant is further limited to less than occasional changes in work tasks within a week. 17 18 19 20 21 The claimant is unable to perform any past relevant work. However, considering his age, education, work experience, and RFC, there are 22 ORDER - 2 1 jobs that exist in significant numbers in the national economy that he can perform. Therefore, the claimant has not been disabled since March 3, 2009, the date the application was filed. 2 3 Appeals Council: Did not assume jurisdiction III. PROCEDURAL HISTORY—THIS COURT 4 5 Jurisdiction based upon: 42 U.S.C. § 405(g) 6 Brief on Merits Submitted by (X) Plaintiff (X) Commissioner 7 IV. STANDARD OF REVIEW 8 Pursuant to 42 U.S.C. § 405(g), the Court may set aside the Commissioner’s 9 denial of Social Security benefits when the ALJ’s findings are based on legal error or not 10 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 11 1211, 1214 n.1 (9th Cir. 2005). “Substantial evidence” is more than a scintilla, less than 12 a preponderance, and is such relevant evidence as a reasonable mind might accept as 13 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); 14 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for 15 determining credibility, resolving conflicts in medical testimony, and resolving any other 16 ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 17 While the Court is required to examine the record as a whole, it may neither reweigh the 18 evidence nor substitute its judgment for that of the ALJ. See Thomas v. Barnhart, 278 19 F.3d 947, 954 (9th Cir. 2002). “Where the evidence is susceptible to more than one 20 rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 21 must be upheld.” Id. 22 ORDER - 3 1 2 V. EVALUATING DISABILITY The claimant, Tracey K. Randall (“Randall”), bears the burden of proving that he 3 is disabled within the meaning of the Social Security Act (“Act”). Meanel v. Apfel, 172 4 F.3d 1111, 1113 (9th Cir. 1999). The Act defines disability as the “inability to engage in 5 any substantial gainful activity” due to a physical or mental impairment which has lasted, 6 or is expected to last, for a continuous period of not less than twelve months. 42 U.S.C. 7 §§ 423(d)(1)(A), 1382c(3)(A). A claimant is disabled under the Act only if his 8 impairments are of such severity that he is unable to do his previous work, and cannot, 9 considering his age, education, and work experience, engage in any other substantial 10 gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A); see also 11 Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). 12 The Commissioner has established a five-step sequential evaluation process for 13 determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. 14 § 416.920. The claimant bears the burden of proof during steps one through four. 15 Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, 16 the burden shifts to the Commissioner. Id. 17 18 VI. ISSUES ON APPEAL 1. Did the ALJ de facto reopen the final determination in Randall’s prior application for benefits? 2. Did the ALJ err in assessing the medical evidence in the record? 3. Did the ALJ err in assessing Randall’s testimony? 4. Did the ALJ err in assessing the lay witness testimony? 19 20 21 22 ORDER - 4 1 5. Did the ALJ err in determining that Randall could perform other work at step five? 2 VII. DISCUSSION 3 Randall appeals the Commissioner’s decision denying him disability benefits, 4 arguing that the ALJ committed several errors requiring reversal. Dkt. 15. The Court 5 addresses the alleged errors in turn. 6 A. Reopening of Prior Determination 7 Randall argues that the ALJ de facto reopened a final determination in Randall’s 8 prior application for benefits because the ALJ discussed evidence from the time period 9 prior to Randall’s current application for benefits. See Dkt. 15 at 3. However, Randall 10 fails to identify any place in the ALJ’s decision where the ALJ specifically considered on 11 the merits whether Randall was disabled during a previously adjudicated period. See id. 12 The ALJ states throughout the decision that she found Randall not to be disabled as of 13 March 3, 2009, the application date. See AR 961-80. The ALJ’s evaluation of any 14 evidence from outside the revelant period ultimately supported the ALJ’s ultimate finding 15 that Randall was not disabled as of the application date. See id; see also Carmickle v. 16 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (noting that medical 17 opinions that predate the alleged onset of disability are of limited relevance). The Court 18 finds that the ALJ did not de facto reopen any prior determination. 19 B. Medical Evidence 20 Randall argues that the ALJ erred in evaluating the medical evidence in the record. 21 See Dkt. 15 at 3-14. The ALJ is responsible for determining credibility and resolving 22 ORDER - 5 1 ambiguities and conflicts in the medical evidence. See Reddick v. Chater, 157 F.3d 715, 2 722 (9th Cir. 1998). In resolving questions of credibility and conflicts in the evidence, an 3 ALJ’s findings “must be supported by specific, cogent reasons.” Id. at 725. The ALJ can 4 do this “by setting out a detailed and thorough summary of the facts and conflicting 5 clinical evidence, stating his interpretation thereof, and making findings.” Id. 6 The ALJ must provide “clear and convincing” reasons for rejecting the 7 uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81 8 F.3d 821, 830 (9th Cir. 1996). Even when a treating or examining physician’s opinion is 9 contradicted, that opinion “can only be rejected for specific and legitimate reasons that 10 are supported by substantial evidence in the record.” Id. at 830-31. 11 1. 12 Randall argues that the ALJ erred by failing to give a specific and legitimate Terilee Wingate, Ph.D. 13 reason supported by substantial evidence to discount the opinion of examining 14 psychologist Terilee Wingate, Ph.D. See Dkt. 15 at 8-11. The Court disagrees. 15 Dr. Wingate examined Randall in May of 2009 and November of 2010 and opined 16 that Randall was markedly limited in his ability to interact appropriately in public 17 contacts, respond appropriately to and tolerate the pressures and expectations of a normal 18 work setting, and control physical or motor movements and maintain appropriate 19 behavior. See AR 696, 874-75. Dr. Wingate also opined that Randall had several other 20 moderate cognitive and social limitations. See id. The ALJ discounted Dr. Wingate’s 21 opinions because, among other reasons, the marked limitations were contradicted by 22 Randall’s activities. See AR 976-77. ORDER - 6 1 An ALJ may reject a physician’s opinion when other evidence of the claimant’s 2 ability to function, including reported activities of daily living, contradicts that opinion. 3 See Morgan v. Comm’r, Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999); Batson 4 v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (finding an ALJ need 5 not accept physician’s opinion that is inadequately supported “by the record as a whole”). 6 Here, Randall reported living with roommates, regularly going shopping, attending 7 college classes for a year and a half, and working part-time at a pizza shop as a shift 8 manager, where he reported having friends. See AR 874, 994, 997, 1009-10. Therefore, 9 substantial evidence supports the ALJ discounting the marked social limitations to which 10 Dr. Wingate opined because they were contradicted by Randall’s activities. 11 Randall also argues that the ALJ erred by failing to discuss Dr. Wingate’s April 12 2008 opinion. See Dkt. 15 at 10. However, an ALJ “must use judgment based on the 13 facts of each case in determining whether, and the extent to which, it is necessary to 14 address separately each medical opinion from a single source.” Social Security Ruling 15 (“SSR”) 96-2p, 1996 WL 374188 at *2. Here, Dr. Wingate’s April 2008 opinion is 16 entirely consistent with her May 2009 opinion. See AR 340, 696. Accordingly, the same 17 reasons the ALJ gave for discounting Dr. Wingate’s May 2009 opinion could be applied 18 to the April 2008 opinion. Therefore, the ALJ did not err by discussing only the more 19 recent opinion. 20 21 22 ORDER - 7 1 2. 2 Randall argues that the ALJ erred by giving significant weight to the opinion of Carla van Dam, Ph.D. 3 Carla van Dam, Ph.D., when Dr. van Dam had a possible conflict of interest. See Dkt. 15 4 at 11-12. The Court disagrees. 5 Randall cites 20 C.F.R. § 416.919q as evidence that Dr. van Dam had a possible 6 conflict of interest by being simultaneously employed as both a case consultant and a 7 consultative examiner. See id. However, the regulation provides that a consultant shall 8 not work on a claimant’s case when that consultant previously examined the claimant and 9 therefore has prior knowledge of the claimant’s case. See 20 C.F.R. § 416.919q. Here, 10 the Court agrees with the ALJ that Dr. van Dam’s work as a psychological consultant for 11 Disability Determination Services does not conflict with her work as a consultative 12 examiner in this case because it is undisputed that she acted in this case only in her 13 capacity as a consultative examiner and did not serve in both capacities. See AR 975. 14 Therefore, the ALJ did not err in finding no relevant conflict of interest in Dr. van Dam’s 15 opinion. 16 3. 17 Randall argues that the ALJ erred by failing to address the October 2011 opinion Tasmyn Bowes, Psy.D. 18 of examining psychologist Tasmyn Bowes, Psy.D. See Dkt. 15 at 12-13. The Court 19 agrees. 20 Dr. Bowes examined Randall in October of 2011 and opined that Randall had 21 several marked cognitive and social limitations. See AR 951. The ALJ gave significant 22 weight to Dr. Bowes’s April 2010 opinion that Randall had only mild to moderate ORDER - 8 1 functional limitations. See AR 976. However, the ALJ failed to discuss Dr. Bowes’s 2 more recent opinion, which is inconsistent with the earlier opinion, in her evaluation of 3 the medical opinion evidence. See AR 974-77. An ALJ must explain why “significant 4 probative evidence has been rejected.” Vincent on Behalf of Vincent v. Heckler, 739 F.3d 5 1393, 1394-95 (9th Cir. 1984). An ALJ errs when she “completely ignores or neglects to 6 mention [an examining] physician’s medical opinion that is relevant to the medical 7 evidence being discussed.” Lingenfelter v. Astrue, 504 F.3d 1028, 1045 (9th Cir. 2007). 8 The Ninth Circuit has “recognized that harmless error principles apply in the 9 Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 10 (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) 11 (collecting cases)). The Ninth Circuit noted that “in each case we look at the record as a 12 whole to determine [if] the error alters the outcome of the case.” Id. The Ninth Circuit 13 has “adhered to the general principle that an ALJ’s error is harmless where it is 14 ‘inconsequential to the ultimate nondisability determination.’” Id. (quoting Carmickle, 15 533 F.3d at 1162) (other citations omitted). The Ninth Circuit noted the necessity to 16 follow the rule that courts must review cases “‘without regard to errors’ that do not affect 17 the parties’ ‘substantial rights.’” Id. at 1118 (quoting Shinseki v. Sanders, 556 U.S. 396, 18 407 (2009)). 19 The Commissioner argues that any error in failing to discuss the opinion is 20 harmless because the opinion is contradicted by other parts of the record. See Dkt. 16 at 21 11. However, the Court may not make this post hoc argument for the ALJ. See Pinto v. 22 Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (Court “cannot affirm the decision of an ORDER - 9 1 agency on a ground that the agency did not invoke in making its decision”); Connett v. 2 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (error to affirm ALJ’s decision based on 3 evidence ALJ did not discuss). Had the ALJ addressed and credited Dr. Bowes’s 4 opinion, the RFC would have included additional limitations, as would the hypothetical 5 questions posed to the vocational expert. As the ALJ’s ultimate determination regarding 6 disability was based on the testimony of the vocational expert on the basis of an improper 7 hypothetical question, this error affected the ultimate disability determination and is not 8 harmless. 9 Randall also argues that the ALJ erred by failing to include all of the moderate 10 limitations to which Dr. Bowes opined in April of 2010 into the RFC. See Dkt. 15 at 13. 11 Because the ALJ must evaluate Dr. Bowes’s October 2011 opinion on remand, the ALJ 12 should also re-evaluate the weight given to Dr. Bowes’s April 2010 opinion and assess 13 Randall’s RFC accordingly. 14 4. 15 Randall argues that the ALJ erred by giving too much weight to the opinions of State Agency Medical Consultants 16 state agency medical consultants Guthrie Turner, M.D., Robert Bernandez-Fu, M.D., 17 Gerald Peterson, Ph.D., and Anita Peterson, Ph.D. See Dkt. 15 at 8, 13-14. The Court 18 disagrees. 19 A state agency medical consultant is a “highly qualified” physician with expertise 20 in evaluating “medical issues in disability claims.” See SSR 96-6p, 1996 WL 374180 at 21 *2. An ALJ must explain the weight given to the opinions in her decision. See id. Here, 22 the ALJ gave the consultants’ opinions significant weight because they were consistent ORDER - 10 1 with the objective medical evidence and other medical opinions in the record. See AR 2 974, 976. 3 Randall argues that the ALJ erred by giving significant weight to the opinions 4 because the consultants did not review any evidence beyond 2010. See Dkt. 15 at 8, 5 13-14. However, that other medical evidence was produced after the date of the 6 consultants’ opinions does not alone render them stale. Instead, the ALJ must evaluate 7 their consistency with the entire record, including any evidence produced after the 8 consultants’ opinions were issued. See SSR 96-6p at *2. Therefore, the ALJ did not err 9 by giving the consulants’ opinions significant weight simply because evidence was 10 produced after their opinions were issued. 11 5. 12 Randall argues that the ALJ erred in evaluating his Global Assessment of Global Assessment of Functioning Scores 13 Functioning (“GAF”) scores from several medical providers. See Dkt. 15 at 13. The 14 Court finds no harmful error. 15 “A GAF score is a rough estimate of an individual’s psychological, social, and 16 occupational functioning used to reflect the individual’s need for treatment.” Vargas v. 17 Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). It is “relevant evidence” of a 18 claimant’s ability to function and therefore “may be a useful measurement.” Garrison v. 19 Colvin, 759 F.3d 995, 1002 n. 4 (9th Cir. 2014); England v. Astrue, 490 F.3d 1017, 1023, 20 n.8 (8th Cir. 2007). However, while a GAF score may be “of considerable help” to an 21 ALJ in assessing a claimant’s RFC, “it is not essential” to the accuracy thereof. Howard 22 v. Comm’r, Soc. Sec. Admin., 276 F.3d 235, 241 (6th Cir. 2002). Accordingly, an ALJ’s ORDER - 11 1 failure to reference or specifically account for a GAF score in assessing a claimant’s RFC 2 does not by itself make the RFC assessment inaccurate. See id. 3 Here, Randall fails to establish any way in which the RFC is deficient as a result 4 of giving little weight to the GAF scores. See Dkt. 15 at 13. The ALJ included social 5 limitations in Randall’s RFC due to mental health impairments. See AR 967. Randall 6 points to no evidence that any GAF score in the record would demand further specific 7 limitations that are definitively missing from the RFC. Therefore, Randall has not met 8 his burden of showing harmful error. See Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th 9 Cir. 2012). 10 6. 11 Randall describes in detail the findings of 16 other medical providers, arguing Other Medical Evidence 12 only that these findings support Randall’s testimony. See Dkt. 15 at 3-7. As discussed in 13 detail below, the ALJ did not err in discounting Randall’s testimony. See infra § VII.C. 14 Randall also argues the ALJ erred by “failing to acknowledge” that the findings of 15 Bill Wilson, MHP, were consistent with the opinions of the examining psychologists. 16 See Dkt. 15 at 13. However, an ALJ is not required to discuss every clinical finding into 17 her decision. See Vincent, 739 F.3d at 1394-95. Here, the ALJ sufficiently summarized 18 the facts and conflicting clinical evidence in evaluating the medical opinion evidence. 19 See AR 974-78. 20 Finally, Randall argues that the ALJ erred by failing to find that Randall’s seizure 21 disorder was a severe impairment at step two. See Dkt. 15 at 7-8. The ALJ stated that 22 the effects from Randall’s seizure disorder and medication side effects were nevertheless ORDER - 12 1 “taken into account in the determination of his [RFC] assessment.” See AR 965. Randall 2 argues without any further detail that the ALJ’s statement is untrue. See Dkt. 15 at 7-8. 3 The Court will not address this incomplete argument. See Kim v. Kang, 154 F.3d 996, 4 1000 (9th Cir. 1998) (stating that matters on appeal not specifically and distinctly argued 5 in opening brief ordinarily will not be considered). 6 C. Randall’s Testimony 7 Randall argues that the ALJ erred in evaluating his testimony. See Dkt. 14 at 14- 8 17. The Court disagrees. 9 Questions of credibility are solely within the control of the ALJ. See Sample v. 10 Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The Court should not “second-guess” this 11 credibility determination. Allen v. Heckler, 749 F.2d 577, 580 (9th Cir. 1984). Unless 12 affirmative evidence shows the claimant is malingering, an ALJ’s reasons for rejecting 13 the claimant’s testimony must be “clear and convincing.” Lester, 81 F.2d at 834. 14 However, an ALJ may dismiss a claimant’s subjective complaints when there is 15 affirmative evidence of malingering. See Valentine, 574 F.3d at 693. 16 Here, the ALJ discounted Randall’s testimony because, among other reasons, 17 Randall’s activities were inconsistent with the severity of the symptoms he alleged. See 18 AR 973. The Ninth Circuit has recognized that a claimant’s daily activities may form the 19 basis of an adverse credibility determination when they contradict his other testimony. 20 Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, Randall alleged that his chronic 21 pain and headaches severely limited his ability to sit and stand for extended periods, 22 stating that he needed to lie down for at least two hours once or twice a day. See AR ORDER - 13 1 1019, 1023. Randall also alleged that his impairments caused mental issues such as 2 memory loss and having angry outbursts. See AR 1003, 1006, 1011. However, Randall 3 reported completing household chores and yardwork, running errands, driving, attending 4 college classes for a year and a half, and working part-time at a pizza shop as a shift 5 manager. See AR 283-84, 995, 997, 1009-10. The ALJ reasonably found that these 6 activities reflected that Randall was not as functionally limited as he alleged. See AR 7 973. Therefore, the ALJ provided a clear and convincing reason supported by substantial 8 evidence for discounting the severity of Randall’s subjective complaints and did not err 9 here. 10 D. Lay Witness Evidence 11 Randall argues that the ALJ erred in evaluating the lay witness testimony of his 12 former partner Julie Wilson. See Dkt. 15 at 17-18. The Court disagrees. 13 “In determining whether a claimant is disabled, an ALJ must consider lay witness 14 testimony concerning a claimant’s ability to work.” Stout, 454 F.3d at 1053. If an ALJ 15 disregards the testimony of a lay witness, the ALJ must provide reasons “that are 16 germane to each witness.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 17 Here, the ALJ discounted Ms. Wilson’s testimony because it reiterated Randall’s 18 testimony, which was inconsistent with his activities. See AR 978. When a claimant’s 19 testimony has been properly rejected, lay witness testimony that is similar thereto may be 20 rejected for the same reasons used to reject the claimant’s testimony. See Valentine, 574 21 F.3d at 694; Molina, 674 F.3d at 1114. Ms. Wilson testified to Randall’s chronic pain 22 and memory and emotional problems being of similar severity as that to which Randall ORDER - 14 1 testified. See AR 240-46. Therefore, the ALJ provided a germane reason supported by 2 substantial evidence to discount Ms. Wilson’s testimony. 3 E. RFC and Step-Five Finding 4 Randall argues that the ALJ’s RFC assessment and step-five finding are not 5 supported by substantial evidence due to the aforementioned errors. See Dkt. 15 at 6 18-19. As discussed above, because the ALJ erred in assessing the medical evidence, the 7 RFC analysis was not complete, and the ALJ’s step-five determination is not supported 8 by substantial evidence and is in error. 9 The Court may remand this case “either for additional evidence and findings or to 10 award benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when 11 the Court reverses an ALJ’s decision, “the proper course, except in rare circumstances, is 12 to remand to the agency for additional investigation or explanation.” Benecke v. 13 Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). Thus, it is “the unusual 14 case in which it is clear from the record that the claimant is unable to perform gainful 15 employment in the national economy,” that “remand for an immediate award of benefits 16 is appropriate.” Id. 17 Benefits may be awarded when “the record has been fully developed” and “further 18 administrative proceedings would serve no useful purpose.” Smolen, 80 F.3d at 1292; 19 Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits 20 should be awarded when: 21 22 (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it ORDER - 15 1 is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 2 Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 3 2002). Here, issues still remain regarding conflicts in the medical evidence over 4 Randall’s functional capabilities and his ability to perform work despite any additional 5 functional limitations. Accordingly, remand for further consideration is warranted in this 6 case. 7 VIII. ORDER 8 Therefore, it is hereby ORDERED that the Commissioner’s final decision 9 denying Randall disability benefits is REVERSED AND REMANDED. 10 Dated this 27th day of March, 2017. 11 A 12 13 BENJAMIN H. SETTLE United States District Judge 14 15 16 17 18 19 20 21 22 ORDER - 16

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