Larsen v. Colvin

Filing 20

ORDER REVERSING AND REMANDING DEFENDANTS DECISION TO DENY BENEFITS - by Judge David W. Christel. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CHRISTOPHER L. LARSEN,

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Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

CASE NO. 3:16-CV-05654-DWC
ORDER REVERSING AND
REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS

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Defendant.
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Plaintiff Christopher L. Larsen filed this action, pursuant to 42 U.S.C. § 405(g), for
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judicial review of Defendant’s denial of Plaintiff’s applications for supplemental security income
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(“SSI”) and disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule
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of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter
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heard by the undersigned Magistrate Judge. See Dkt. 7.
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After reviewing the record, the Court concludes in light of new medical evidence
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submitted to the Appeals Council, substantial evidence does not support the Administrative Law
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Judge (“ALJ”) assessment of the residual functional capacity (“RFC”) or decision finding
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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-1

1 Plaintiff not disabled at Steps 4 and 5 of the sequential evaluation process. The Court further
2 concludes the ALJ erred when he failed to discuss significant, probative evidence contained in
3 the opinions of non-examining physicians Drs. Eather and Hurley, and erred when he failed to
4 properly consider the medical opinion evidence of Dr. Griffin, Ph.D. Had the ALJ properly
5 considered this medical opinion evidence, the residual functional capacity may have included
6 additional limitations. The ALJ’s error is therefore harmful, and this matter is reversed and
7 remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social
8 Security (“Commissioner”) for further proceedings consistent with this Order.
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FACTUAL AND PROCEDURAL HISTORY
On September 6, 2012, Plaintiff filed an application for SSI and DIB, alleging disability

11 as of May 3, 2009. See Dkt. 15, Administrative Record (“AR”) 124-130. The application was
12 denied upon initial administrative review and on reconsideration. See Id., 131-139. A hearing
13 was held before ALJ Robert P. Kingsley on January 22, 2015. See AR 28. In a decision dated
14 May 26, 2015, the ALJ determined Plaintiff was not disabled. See AR 28-39. Plaintiff sought
15 review of the ALJ’s decision and submitted new evidence to the Appeals Council, including
16 physical functional evaluations by Drs. Makristy Caratao, M.D., and Lindsay Newton, M.D. See
17 AR 5-7. The Appeals Council considered the new evidence and denied Plaintiff’s request for
18 review, making the ALJ’s decision the final decision of the Commissioner. See AR 1-4; 20
19 C.F.R. § 404.981, § 416.1481.
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In Plaintiff’s Opening Brief, Plaintiff maintains (1) the administrative record, including

21 evaluations by Drs. Caratao and Newton, fails to provide substantial evidence to support the
22 ALJ’s decision to deny disability benefits; (2) the ALJ erred in discounting or outright failing to
23 review medical opinion evidence; (3) the ALJ erred in failing to provide clear and convincing
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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-2

1 reasons for finding Plaintiff not entirely credible; and (3) the ALJ erred in basing his Step Five
2 finding on his erroneous RFC assessment. Dkt. 13, pp. 1-20.
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STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of

5 social security benefits if the ALJ’s findings are based on legal error or not supported by
6 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th
7 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
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DISCUSSION
I.

Whether the ALJ’s decision is supported by substantial evidence in light of
the new evidence submitted to the Appeals Council and included in the
administrative record.

On July 7, 2013 and June 11, 2015, Drs. Caratao and Newton, respectively, completed

12 Physical Functional Evaluations of Plaintiff. AR. 1536-1543. These evaluations were not
13 submitted to the ALJ, but were submitted to the Appeals Council. See AR. 1-6. The Appeals
14 Council considered both doctors’ evaluations and found the new evidence did not provide a basis
15 for changing the ALJ’s decision. AR. 2. Plaintiff argues, in light of these doctors’ opinions,
16 substantial evidence does not support the ALJ’s decision finding Plaintiff not disabled at Steps 4
17 and 5 of the sequential evaluation process. Dkt. 913, pp. 7-13.
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When the Appeals Council considers new evidence in denying review of the ALJ’s

19 decision, “the new evidence is part of the administrative record, which the district court must
20 consider in determining whether the Commissioner’s decision is supported by substantial
21 evidence” and free of legal error. Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157,
22 1159-60 (9th Cir. 2012); Taylor v. Commissioner of Social Sec. Admin., 659 F.3d 1228, 1232
23 (9th Cir. 2011). As Drs. Caratao and Newton’s evaluations were considered by the Appeals
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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-3

1 Council, the Court must consider this evidence in determining if the ALJ’s decision is supported
2 by substantial evidence and free of legal error.
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On July 19, 2013, Dr. Caratao completed an evaluation wherein he diagnosed Plaintiff

4 with moderate to marked cerebral artery stenosis and cerebrovascular incident, low back pain,
5 and right shoulder/scapular pain. AR. 1537. Dr. Caratao opined that these conditions would
6 affect work activities such as standing, walking, lifting, carrying, handling, pushing, pulling,
7 reaching, stooping, and crouching. AR. 1537. Based on these findings, Dr. Caratao ultimately
8 opined Plaintiff was limited to sedentary work. See AR. 1537-1538.
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On June 11, 2015, Dr. Newton also completed an evaluation of Plaintiff. AR. 1539-1543.

10 After conducting a full examination of Plaintiff, including testing Plaintiff’s range of joint
11 motion, Dr. Newton diagnosed Plaintiff with marked Factor V Leiden and severe left-sided
12 weakness as a result of prior cerebrovascular accidents. AR. 1539-40. Dr. Newton found
13 Plaintiff’s conditions prevented him from performing basic work-related activities such as
14 walking, lifting, carrying, handling, pushing, pulling, and crouching, and further made Plaintiff
15 “unable to meet the demands of sedentary work.” AR. 1540-41.
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The ALJ “need not discuss all evidence presented.” Vincent ex rel. Vincent v. Heckler,

17 739 F.3d 1393, 1394-95 (9th Cir. 1984). However, the ALJ “may not reject ‘significant probative
18 evidence’ without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting
19 Vincent, 739 F.2d at 1395). The “ALJ’s written decision must state reasons for disregarding
20 [such] evidence.” Flores, 49 F.3d at 571.
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Defendant argues the ALJ’s decision should be affirmed because Drs. Caratao and

22 Newton’s opinions do not change the ALJ’s decision. See Dkt. 18, pp. 15-17. Specifically,
23 Defendant contends that other evidence contained in the record as a whole provides a substantial
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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-4

1 basis to support the ALJ’s decision and findings. Id. However, because Drs. Caratao and
2 Newton’s opinions were not submitted to the ALJ, the ALJ did not provide any reasons for
3 discounting their opinions. See AR 28-39. The Court cannot “affirm the decision of an agency on
4 a ground the agency did not invoke in making its decision.” Stout v. Comm’r of Soc. Sec. Admin,
5 454 F.3d 1050, 1054 (9th Cir. 2006). “Long-standing principles of administrative law require us
6 to review the ALJ’s decision based on the reasoning and actual findings offered by the ALJ - 7 not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”
8 Bray v. Comm’r of SSA, 554 F.3d 1219, 1225-26 (9th Cir. 2009) (citing SEC v. Chenery Corp.,
9 332 U.S. 194, 196 (1947) (other citation omitted)). As the ALJ did not consider the opinions of
10 Drs. Caratao and Newton, the Court is not persuaded by Defendant’s assertion that the opinions
11 can be disregarded.
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Under Brewes, the Court must review the entire record, including both Dr. Caratao’s July

13 2013 opinion and Dr. Newton’s June 2015 opinion, when determining whether the
14 Commissioner’s decision is supported by substantial evidence and free of legal error. As the ALJ
15 did not consider these doctors’ opinion when finding Plaintiff was not disabled, the final decision
16 of the Commissioner is erroneous. See Ramirez v. Shalala, 8 F.3d 1449, 1453-54 (9th Cir. 1993)
17 (finding the ALJ’s and the Appeals Council’s failure to provide any reason for disregarding a
18 physician’s opinion submitted to the Appeals Council was improper).
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An error is harmless if it is not prejudicial to Plaintiff or “inconsequential” to the ALJ’s

20 “ultimate nondisability determination.” Stout v. Commissioner, Social Security Admin., 454 F.3d
21 1050, 1055 (9th Cir. 2006); see Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). Here, the
22 ALJ did not include limitations in the RFC assessment that are consistent with Dr. Caratao’s July
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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-5

1 2013 opinion and Dr. Newton’s June 2015 findings. See AR. 38, 1536-1543. In assessing the
2 RFC, the ALJ found Plaintiff was able
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[t]o perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), lifting
ten pounds frequently and twenty pounds occasionally, with the following
additional limitations: The claimant can stand or walk for four hours in an eight
hour day. The claimant can sit for six hours in an eight-hour day…The claimant
can frequently climb ramps or stairs. The claimant can perform occasional
stooping, kneeling, crouching and crawling[.] The claimant can perform
occasional lifting and carrying with the left upper extremity.

7 AR. 33. The RFC providing for a light level of physical exertion is therefore directly at odds
8 with the opinions of Drs. Caratao and Newton. The RFC does not, for example, consider or
9 account for physical limitations noted by Drs. Caratao and Newton which would adversely affect
10 Plaintiff’s work activities such as standing, walking, lifting, carrying, handling, pushing, pulling,
11 reaching, stooping, and crouching. See AR. 38, 1536-1543. The RFC further does not account
12 for Dr. Caratao’s opinion Plaintiff is limited to sedentary work, or Dr. Newton’s opinion Plaintiff
13 is unable to even perform sedentary work. Id. As the ALJ did not properly consider these
14 doctors’ opinions or include limitations in the RFC which are consistent with their findings, the
15 RFC is defective. See Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 690 (“an
16 RFC that fails to take into account a claimant’s limitations is defective”); Watson v. Astrue, 2010
17 WL 4269545, *5 (C.D. Cal. Oct. 22, 2010) (finding the ALJ’s RFC determination and
18 hypothetical questions posed to the vocational expert defective when the ALJ did not properly
19 consider a doctor’s findings).
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The Court also notes Dr. Caratao’s opinion bolsters the opinions of other medical

21 professionals contained in the record. For example, Drs. Eather, Ph.D. and Hurley, M.D. opined,
22 in part that Plaintiff was limited to sedentary work. AR. 94, 114. The ALJ failed to discuss either
23 of these medical opinions. See AR. 28-39. Notwithstanding the ALJ’s error in failing to discuss
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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-6

1 significant, probative evidence (see Section II), the record now contains multiple opinions
2 finding Plaintiff is limited to sedentary work. See AR. 94, 114, 1536-1538. Therefore, Drs.
3 Eather and Hurley’s opinions have been bolstered by Dr. Caratao’s opinion which may result in
4 the ALJ giving additional weight to these opinions.
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In summation, the ALJ did not consider Dr. Caratao’s July 2013 opinion, Dr. Newton’s

6 June 2015 opinion, or include limitations in the RFC which are consistent with those opinions.
7 Further, Dr. Caratao’s evaluation and opinion may bolster medical opinion evidence in the
8 record. Therefore, the Court finds the ultimate disability determination may change if the ALJ
9 properly considers the opinions of Drs. Caratao and Newton. Accordingly, remand is necessary
10 to allow the ALJ to reconsider the entire record at each step of the sequential evaluation process.
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II.

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Plaintiff contends the ALJ erred in assessing the medical opinions of Drs. Bruce Eather,

Whether the ALJ properly considered and weighed the medical opinions.

13 Ph.D., Wayne Hurley, M.D., Enid Griffin, Psy.D, Andrew Tsoi, M.D., Markisty Caratao,
14 M.D., and Rasmussen, Ph.D. Dkt. 13, pp. 3-13. The Court agrees.
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The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted

16 opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
17 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d
18 502, 506 (9th Cir. 1990)). When a treating or examining physician’s opinion is contradicted, the
19 opinion can be rejected “for specific and legitimate reasons that are supported by substantial
20 evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035,
21 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can
22 accomplish this by “setting out a detailed and thorough summary of the facts and conflicting
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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-7

1 clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157
2 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
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The ALJ “may reject the opinion of a non-examining physician by reference to specific

4 evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998) (citing
5 Gomez v. Chater, 74 F.3d 967, 972 (9th Cir. 1996)); Andrews, 53 F.3d at 1041). However, all of
6 the determinative findings by the ALJ must be supported by substantial evidence. See Bayliss,
7 427 F.3d at 1214 n.1 (citing Tidwell, 161 F.3d at 601); see also Magallanes, 881 F.2d at 750
8 (“Substantial evidence” is more than a scintilla, less than a preponderance, and is such “relevant
9 evidence as a reasonable mind might accept as adequate to support a conclusion”).
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A. Drs. Bruce Eather, Ph.D., and Wayne Hurley, M.D.

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Plaintiff contends the ALJ erred when he failed to discuss significant, probative evidence

12 contained in the opinion of non-examining physicians Drs. Eather and Hurley. Dkt. 9, pp. 6-7.
13 Specifically, Plaintiff alleges the ALJ failed to consider Dr. Eather’s opinion that Plaintiff
14 “should not work with the public and would do best with solo type work,” and Dr. Hurley’s
15 opinion that Plaintiff was limited to sedentary work. Id. (referencing AR. 92, 114). The ALJ
16 “need not discuss all evidence presented.” Vincent ex rel. Vincent v. Heckler, 739 F.3d 1393,
17 1394-95 (9th Cir. 1984). However, the ALJ “may not reject ‘significant probative evidence’
18 without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent,
19 739 F.2d at 1395). The “ALJ’s written decision must state reasons for disregarding [such]
20 evidence.” Flores, 49 F.3d at 571.
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Dr. Eather completed a Disability Determination Explanation of Plaintiff on April 11,

22 2013. AR. 82-95. He found Plaintiff was moderately limited in his ability to complete a normal
23 workday and workweek without interruptions from psychologically based symptoms and in his
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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-8

1 ability to interact appropriately with the general public. AR. 92. Based on those findings, Dr.
2 Eather opined that Plaintiff, “should not work with the public and would do best with solo type
3 work.” AR. 92. He further opined Plaintiff is capable of only sedentary work. AR. 94.
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Dr. Hurley completed a Disability Determination Explanation of Plaintiff on December

5 19, 2013. AR 98-115. Dr. Hurley found Plaintiff was moderately limited in his ability to
6 complete a normal workday and workweek without interruptions from psychologically based
7 symptoms, to perform at a consistent pace without an unreasonable number and length of rest
8 periods, and to appropriately interact with the general public. AR. 111-12. Dr. Hurley ultimately
9 opined Plaintiff was capable of sedentary work. AR. 114.
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The ALJ’s opinion makes no reference to Drs. Eather and Hurley’s opinions. See AR. 28-

11 39. Without discussion of these opinions, the Court cannot determine if the ALJ properly
12 considered the findings or simply ignored the evidence. Accordingly, the ALJ erred by failing to
13 explain the weight given to all the limitations opined to by Drs. Eather and Hurley. See Flores,
14 49 F.3d at 571 (an “ALJ’s written decision must state reasons for disregarding significant,
15 probative evidence”); Brown-Hunter, 806 F.3d at 492; Blakes, 331 F.3d at 569.
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As discussed above, “harmless error principles apply in the Social Security context.”

17 Molina, 674 F.3d at 1115. An ALJ’s failure to discuss a medical opinion is not harmless error.
18 Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012). When the ALJ ignores significant and
19 probative evidence in the record favorable to a claimant’s position, the ALJ “thereby provide[s]
20 an incomplete [RFC] determination.” Id. at 1161.
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The ALJ’s failure to discuss portions of Drs. Eather and Hurley’s opinion resulted in an

22 incomplete RFC. For example, Dr. Eather found Plaintiff should not work with the public and
23 would do best with solo type work. See AR. 92. In contrast, the ALJ found that Plaintiff “can
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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-9

1 have occasional superficial contact with coworkers in an immediate workgroup of no more than
2 ten.” AR. 33. Additionally, both Drs. Eather and Hurley opined Plaintiff was limited to sedentary
3 work. AR. 94, 114. The ALJ found Plaintiff has the RFC to perform light work, lifting ten
4 pounds frequently and twenty pounds occasionally with some limitations. See AR. 33. Had the
5 ALJ properly considered the opinions of Dr. Eather and Dr. Hurley regarding Plaintiff’s
6 limitations, the ALJ may have included additional limitations in the RFC and in the hypothetical
7 question posed to the vocational expert.
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As the ultimate disability determination may change, the ALJ’s failure to discuss the

9 opinions of Drs. Eather and Hurley’s opinions is not harmless and requires reversal.
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B. Dr. Enid Griffin, Psy.D.

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Plaintiff also contends the ALJ erred when he discounted the medical opinion of Dr.

12 Griffin. Dkt. 13, pp. 5-6. Specifically, Plaintiff argues the ALJ erred in finding Dr. Griffin’s
13 opinion was based more heavily on Plaintiff’s subjective complaints than on objective
14 evidence, and in finding his opinion was not consistent with the longitudinal record. Id. The
15 Court agrees.
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Dr. Griffin conducted a Psychological Evaluation of Plaintiff on March 28, 2013. AR.

17 668-671. Dr. Griffin opined that Plaintiff “likely would not be able to handle an increase in
18 stressors such as found with training and/or employment.” AR. 671. The ALJ gave little weight
19 to Dr. Griffin’s opinion and found his opinion was (1) based upon Plaintiff’s subjective reports;
20 and (2) inconsistent with the totality of the evidence in the record. AR. 37.
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First, the ALJ found Dr. Griffin’s opinion was based largely on Plaintiff’s subjective

22 reports regarding employment stressors. AR. 37. According to the Ninth Circuit, “[an] ALJ may
23 reject a treating physician’s opinion if it is based ‘to a large extent’ on a claimant self-reports that
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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-10

1 have been properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th
2 Cir. 2008) (quoting Morgan v. Comm’r. Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999)
3 (citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989))). This situation is distinguishable from
4 one in which the doctor provides his own observations in support of his assessments and
5 opinions. See Ryan v.Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1199-1200 (9th Cir. 2008).
6 According to the Ninth Circuit, “when an opinion is not more heavily based on a patient’s self7 reports than on clinical observations, there is no evidentiary basis for rejecting the opinion.”
8 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (citing Ryan v. Comm’r of Soc. Sec.
9 Admin., 528 F.3d 1194, 1199-1200 (9th Cir. 2008)).
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Here, Dr. Griffin interviewed Plaintiff, reviewed medical records, conducted a mental

11 health examination, and made clinical observations of Plaintiff. See AR. 668-71. Following Dr.
12 Griffin’s extensive examination and evaluation of Plaintiff, he diagnosed Plaintiff with severe
13 major depressive disorder and alcohol abuse. AR. 670. Dr. Griffin indicated Plaintiff had a
14 global assessment of functioning (“GAF”) score of 50 based on Plaintiff’s symptom severity,
15 the MSEs, and Plaintiff’s activities of daily living. AR. 668-71. In reaching his opinions, Dr.
16 Griffin relied on his own observations, documented results of the MSEs, and Plaintiff’s
17 subjective complaints and reported mental health history. Id. Dr. Griffin did not discredit
18 Plaintiff’s subjective reports, and supported his ultimate opinions with the MSEs and her own
19 observations. Therefore, the Court concludes the ALJ’s finding that Dr. Griffin’s opinions
20 were based primarily upon limited information provided by Plaintiff--which was allegedly
21 inconsistent with other portions of the record—was not supported by substantial evidence.
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Second, the ALJ assigned little weight to Dr. Griffin’s opinion because it was

23 inconsistent with the totality of the evidence in the record. AR. 37. Specifically, the ALJ found
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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-11

1 Dr. Griffin’s opinions were “not consistent with Plaintiff’s longitudinal record.” AR. 37. ["]To
2 say medical opinions … are contrary to the preponderant conclusions mandated by the objective
3 findings does not achieve the level of specificity that our prior cases have required . . . The ALJ
4 must do more than offer his own conclusions. He must set forth his own interpretations and
5 explain why they, rather than the doctor's, are correct." Regennitter v. Comm'r of Soc. Sec.
6 Admin, 166 F.3d 1294, 1299 (9th Cir. 1999) (quoting Embrey v. Bowen, 849 F.2d 418, 421-22
7 (9th Cir. 1988)). The ALJ therefore erred when he failed to provide any support or additional
8 reasoning describing inconsistencies with Dr. Griffin’s opinions exist in the record. Id.
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The Court concludes the ALJ erred when he failed to provide specific and legitimate

10 reasons supported by substantial evidence for discounting Dr. Griffin’s opinion.
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C. Drs. Andrew Tsoi, M.D., Markisty Caratao, M.D., and Rasmussen, Ph.D.

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Plaintiff contends the ALJ erred in weighing the medical opinions of Drs. Tsoi, Caratao,

13 and Rasmussen. Plaintiff argues the ALJ should not have given these opinions “great weight,”
14 because more recent medical evidence demonstrates Plaintiff has additional or more severe
15 limitations. See Dkt. 13, pp.4-5, 9-12; Dkt. 19, pp. 1, 3-4.
16

The Court has already concluded that the ALJ erred in reviewing medical evidence from

17 Drs. Eather, Hurley, and Griffin and that this matter should be reversed and remanded for further
18 consideration, see supra, sections A-B. Had the ALJ properly considered the opinions of Drs.
19 Eather, Hurley, and Griffin regarding Plaintiff’s limitations, the ALJ may have assigned different
20 weight to the opinions of Drs. Tsoi, Caratao, and Rasmussen. Therefore, the ALJ is directed to
21 consider these opinions anew and reweigh the evidence accordingly, following remand of this
22 matter.
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III.

Whether the ALJ erred in assessing Plaintiff’s credibility, Residual
Functional Capacity (RFC) and thus, in meeting his Step 5 burden.

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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-12

1
Plaintiff contends the ALJ erred in finding his testimony not fully credible, in assessing
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his RFC and by basing his step five finding on his erroneous RFC assessment. Dkt. 13, p. 2, 133
19.
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The Court has already concluded that the ALJ’s decision is in error because it is
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inconsistent with opinions submitted to the Appeals Council, because it omits significant,
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probative evidence contained in the opinions of non-examining physicians Drs. Eather and
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Hurley, and because it fails to properly consider the medical opinion evidence of Dr. Griffin,
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Ph.D. See Sections I-II, supra. The evaluation of a plaintiff’s statements regarding limitations
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relies in part on the assessment of the medical evidence. See 20 C.F.R. § 404.1529(c); SSR 1610
3p, 2016 SSR LEXIS 4. Therefore, plaintiff’s testimony and statements should be assessed anew
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following remand of this matter. Additionally, the ALJ must also reassess the RFC on remand.
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See Social Security Ruling 96-8p (“The RFC assessment must always consider and address
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medical source opinions.”); Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 690
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(“an RFC that fails to take into account a claimant’s limitations is defective”). As the ALJ must
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reassess Plaintiff’s RFC on remand, he must also re-evaluate the findings at Step Five to
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determine if Plaintiff can perform the jobs identified by the vocational expert in light of the new
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RFC. See Watson v. Asture, 2010 WL 4269545, *5 (C.D. Cal. Oct. 22, 2010) (finding the ALJ’s
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RFC determination and hypothetical questions posed to the vocational expert defective when the
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ALJ did not properly consider a doctor’s findings).
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IV.

Whether the case should be remanded for an award of benefits.

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Plaintiff argues this case should be remanded for an award of benefits. Dkt. 13, pp. 18-19.
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The Court may remand a case “either for additional evidence and findings or to award benefits.”
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Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Court reverses an
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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
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1 ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the agency for
2 additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004)
3 (citations omitted). However, the Ninth Circuit created a “test for determining when evidence
4 should be credited and an immediate award of benefits directed[.]” Harman v. Apfel, 211 F.3d
5 1172, 1178 (9th Cir. 2000). Specifically, benefits should be awarded where:
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(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 is clear from the record that the ALJ would
be required to find the claimant disabled were such evidence
credited.

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Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002).
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The Court has determined, based on the above identified errors, issues remain which
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must be resolved concerning Plaintiff’s credibility and the medical evidence. Therefore, remand
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for further administrative proceedings is appropriate.
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CONCLUSION
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Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded
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Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and
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this matter is remanded for further administrative proceedings in accordance with the findings
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contained herein.
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Dated this 2nd day of May, 2017.
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A

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David W. Christel
United States Magistrate Judge

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ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS-14