(SS)Streeter v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CONNIE STREETER,

Case No. 1:18-cv-01276-SKO

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Plaintiff,

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v. ORDER ON PLAINTIFF’S SOCIAL

13 SECURITY COMPLAINT

ANDREW SAUL,

14 Commissioner of Social Security,1

15 Defendant. (Doc. 1)

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_____________________________________/

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20 I. INTRODUCTION

21 On September 18, 2018, Plaintiff Connie Streeter (“Plaintiff”) filed a complaint under 42

22 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of

23 Social Security (the “Commissioner” or “Defendant”) denying her applications for disability

24 insurance benefits (“DIB”) and Supplemental Security Income (SSI) under the Social Security

25 Act (the “Act”). (Doc. 1.) The matter is currently before the Court on the parties’ briefs, which

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1 On June 17, 2019, Andrew Saul became the Commissioner of the Social Security Administration. See

27 https://www.ssa.gov/agency/commissioner.html (last visited by the court on September 12, 2019). He is therefore

substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20

28 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper

1 were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States

2 Magistrate Judge.2

3 II. BACKGROUND

4 Plaintiff was born on August 1, 1971, completed high school, and previously worked as a

5 hotel front desk clerk, a medical assistant, and as a stock clerk. (Administrative Record (“AR”)

6 24, 43, 44, 54, 58, 69, 80, 219, 224, 225, 240.) Plaintiff filed a claim for DIB on January 13, 2015,

7 and for SSI payments on January 31, 2015, alleging she became disabled on April 3, 2010, due to

8 chronic back pain, chronic knee pain, high blood pressure, obesity, fatigue, and depression. (AR

9 15, 54–81, 201–210, 219–228, 240–57.)

10 At the hearing, Plaintiff amended the alleged onset date of disability to January 13, 2015

11 and withdrew her claim for DIB, which was dismissed. (AR 15, 44.)

12 A. Relevant Medical Evidence3

13 On May 12, 2017, orthopedic surgeon Arthur I. Garfinkel, M.D. performed a consultative

14 physical examination of Plaintiff. (AR 573–75.) He noted Plaintiff was unable to work because

15 of bilateral knee pain, bilateral shoulder pain, and numbness in both hands. (AR 573.) Plaintiff

16 reported that her “upper extremity symptoms are secondary to chronically using a cane,” which she

17 has done for the past five years. (AR 573.)

18 Upon examination, Dr. Garfinkel described Plaintiff as a “well-developed markedly obese

19 female in no acute distress.” (AR 574.) Her gait was stiff and antalgic, she was unable to tandem

20 walk, and she had difficulty with toe and heel standing. (AR 574.) Dr. Garfinkel found Plaintiff

21 unable to squat because of bilateral knee pain. (AR 574.) She used a single-point cane to help with

22 her balance. (AR 574.)

23 With respect to Plaintiff’s knees, Dr. Garfinkel noted they were “tender, swollen, and

24 warm.” (AR 574.) He found crepitus with range of motion, which was guarded and decreased.

25 (AR 574.) Dr. Garfinkel found Plaintiff’s left knee had a “slight genu varum deformity.” (AR

26 574.) He diagnosed Plaintiff with osteoarthritis in both knees and with morbid obesity. (AR 574.)

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2 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7, 8.)

28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the

1 Dr. Garfinkel opined that Plaintiff should be precluded from activities requiring squatting,

2 kneeling, climbing, balancing, creeping, and crawling. (AR 574.) Plaintiff should also be

3 precluded from activities requiring standing and/or walking more than two hours in an eight-hour

4 period, with no more than 30 minutes of weightbearing at any one time. (AR 575.) According to

5 Dr. Garfinkel, Plaintiff should be allowed to change position as needed for comfort while sitting

6 and should be limited in terms of pushing and pulling with her lower extremities. (AR 575.) He

7 further opined that Plaintiff’s cane was “medically necessary because of her knee pain as well as

8 her poor balance from her morbid obesity,” as she is “markedly top heavy.” (AR 575.)

9 B. Administrative Proceedings

10 The Commissioner denied Plaintiff’s application for benefits initially on June 16, 2015,

11 and again on reconsideration on August 26, 2015. (AR 99–104, 106–112.) Consequently,

12 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 113–129.) The

13 ALJ conducted a hearing on May 30, 2017. (AR 40–52.). Plaintiff appeared at the hearing with

14 her non-attorney representative and testified. (AR 43–47.) A vocational expert (“VE”) also

15 testified. (AR 47–51.)

16 C. The ALJ’s Decision

17 In a decision dated November 15, 2017, the ALJ found that Plaintiff was not disabled, as

18 defined by the Act. (AR 15–25.) The ALJ conducted the five-step disability analysis set forth in

19 20 C.F.R. § 416.920. (AR 18–25.) The ALJ decided that Plaintiff had not engaged in substantial

20 gainful activity since January 13, 2015, the amended alleged onset date (step one). (AR 18.) At

21 step two, the ALJ found Plaintiff’s following impairments to be severe: osteoarthritis and morbid

22 obesity. (AR 18–19.) Plaintiff did not have an impairment or combination of impairments that

23 met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix

24 1 (“the Listings”) (step three). (AR 19.)

25 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)4 and applied the RFC

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4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work

27 setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES

II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P

28 (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an

1 assessment at steps four and five. See 20 C.F.R. § 416.920(a)(4) (“Before we go from step three

2 to step four, we assess your residual functional capacity . . . . We use this residual functional

3 capacity assessment at both step four and step five when we evaluate your claim at these steps.”).

4 The ALJ determined that Plaintiff had the RFC:

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to perform at a reduced level: sedentary work as defined in 20 C.F.R. [§§]

6 404.1567(a) and 416.967(a) except could not be weight bearing for more than thirty

minute [sic] at any given time, changing positions as needed, and no pushing or

7 pulling with the lower extremities. She could never squat, kneel, climb, kneel [sic],

balance, or crawl.

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9 (AR 19–20.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be

10 expected to produce the . . . alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as

11 “not consistent with the medical evidence and other evidence in the record.” (AR 20.)

12 The ALJ found that Plaintiff could not perform her past relevant work as a motel clerk,

13 medical assistant, and stock clerk. (AR 24). Nonetheless, the ALJ determined that Plaintiff could

14 perform alternate jobs that exist in significant numbers in the national economy, such as order clerk,

15 charge account clerk, and call out operator. (AR 24–25). Ultimately, the ALJ concluded that

16 Plaintiff was not disabled at any time through the date of her decision. (AR 25.)

17 Plaintiff sought review of this decision before the Appeals Council, which denied review

18 on August 10, 2018. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the

19 Commissioner. 20 C.F.R. § 416.1481.

20 III. LEGAL STANDARD

21 A. Applicable Law

22 An individual is considered “disabled” for purposes of disability benefits if he or she is

23 unable “to engage in any substantial gainful activity by reason of any medically determinable

24 physical or mental impairment which can be expected to result in death or which has lasted or can

25 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

26 However, “[a]n individual shall be determined to be under a disability only if [her] physical or

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RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and

28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’”

1 mental impairment or impairments are of such severity that [s]he is not only unable to do [her]

2 previous work but cannot, considering [her] age, education, and work experience, engage in any

3 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).

4 “The Social Security Regulations set out a five-step sequential process for determining

5 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel,

6 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920.

7 The Ninth Circuit has provided the following description of the sequential evaluation analysis:

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In step one, the ALJ determines whether a claimant is currently engaged in

9 substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ

proceeds to step two and evaluates whether the claimant has a medically severe

10 impairment or combination of impairments. If not, the claimant is not disabled. If

so, the ALJ proceeds to step three and considers whether the impairment or

11 combination of impairments meets or equals a listed impairment under 20 C.F.R. pt.

404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If

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not, the ALJ proceeds to step four and assesses whether the claimant is capable of

13 performing her past relevant work. If so, the claimant is not disabled. If not, the

ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to

14 perform any other substantial gainful activity in the national economy. If so, the

claimant is not disabled. If not, the claimant is disabled.

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16 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4)

17 (providing the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found

18 to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent

19 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920.

20 “The claimant carries the initial burden of proving a disability in steps one through four of

21 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.

22 1989)). “However, if a claimant establishes an inability to continue [his] past work, the burden

23 shifts to the Commissioner in step five to show that the claimant can perform other substantial

24 gainful work.” Id. (citing Swenson, 876 F.2d at 687).

25 B. Scope of Review

26 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when

27 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record

28 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is defined as being

1 more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari, 253 F.3d 1152,

2 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way, substantial evidence is

3 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

4 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

5 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec.

6 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by

7 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th

8 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the

9 evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 F.3d at

10 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may not

11 substitute its judgment for that of the Commissioner.” (citations omitted)).

12 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a

13 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan,

14 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole,

15 weighing both evidence that supports and evidence that detracts from the [Commissioner’s]

16 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).

17 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.”

18 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin.,

19 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record

20 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’”

21 Tommasetti, 533 F.3d at 1038 (quoting Robbins, 466 F.3d at 885). “[T]he burden of showing that

22 an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki

23 v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted).

24 The ALJ’s decision denying benefits “will be disturbed only if that decision is not supported

25 by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th

26 Cir. 1999). In reviewing the Commissioner’s decision, the Court may not substitute its judgment

27 for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court

28 must determine whether the Commissioner applied the proper legal standards and whether

1 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v.

2 Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

3 “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as

4 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting

5 Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence is more

6 than a mere scintilla but less than a preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,

7 1198 (9th Cir. 2008). The Court “must consider the entire record as a whole, weighing both the

8 evidence that supports and the evidence that detracts from the Commissioner’s conclusion, and may

9 not affirm simply by isolating a specific quantum of supporting evidence.” Lingenfelter v. Astrue,

10 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted).

11 IV. DISCUSSION

12 Plaintiff contends that the ALJ failed to provide specific and legitimate reasons, supported

13 by substantial evidence, for implicitly rejecting the opinion of consultative examiner Dr. Garfinkel

14 that Plaintiff’s cane is “medically necessary because of her knee pain as well as her poor balance

15 from her morbid obesity.” (Doc. 16 at 20–22; Doc. 20 at 3–5.) The Court agrees.

16 A. The ALJ Did Not Properly Account for the Consultative Examiner’s Opinion in

Determining Plaintiff’s Residual Functional Capacity

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1. Legal Standard

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19 The weight given to medical source opinions depends in part on whether they are proffered

20 by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195,

21 1201–02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking,

22 a treating physician’s opinion carries more weight than an examining physician’s opinion, and an

23 examining physician’s opinion carries more weight than a non-examining physician’s opinion.

24 Holohan, 246 F.3d at 1202.

25 An ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted

26 opinion of either a treating or examining physician. Lester, 81 F.3d at 830; Pitzer v. Sullivan, 908

27 F.2d 502, 506 (9th Cir. 1990); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Even if a

28 treating or examining physician’s opinion is contradicted, that opinion can be rejected only “for

1 specific and legitimate reasons that are supported by substantial evidence in the record.” Lester,

2 81 F.3d at 830–31. The ALJ can meet this burden by “setting out a detailed and thorough summary

3 of the facts and conflicting clinical evidence, stating his interpretation thereof, and making

4 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998).

5 2. Analysis

6 In her decision, the ALJ specifically noted Dr. Garfinkel’s opinion regarding Plaintiff’s

7 need for a cane and purported to give “great weight” to the opinion. (AR 23.) The ALJ explained

8 that he gave Dr. Garfinkel’s opinion such weight because “it is consistent with the record, which

9 indicates [Plaintiff] has chronic knee pain and some limited range of motion, due to osteoarthritis.”

10 (AR 23.) The ALJ specifically observed that while Plaintiff at one point “did not require a cane

11 for knee pain,” the “combination of knee pain and obesity could warrant cane use.” (AR 23.)

12 However, nothing in the ALJ’s RFC accommodates Dr. Garfinkel’s opined need for a cane.

13 While the ALJ need not accept the full extent of Dr. Garfinkel’s opinion, the ALJ may not reject

14 it, or significant parts of it, without giving specific and legitimate reasons for doing so. See Lester,

15 81 F.3d at 830–31. Accordingly, the ALJ erred by not providing specific and legitimate reasons,

16 supported by substantial evidence, for implicitly rejecting this portion of Dr. Garfinkel’s opinion.

17 See, e.g., Betts v. Colvin, 531 F. App’x 799, 800 (9th Cir. 2013) (holding that the ALJ erred in

18 disregarding aspects of an examining physician’s opinions, to which the ALJ gave the “greatest

19 weight,” without providing any explanation, and the ALJ’s finding regarding the plaintiff’s RFC

20 therefore failed to take into account certain limitations identified by the examining physician); Bain

21 v. Astrue, 319 F. App’x. 543, 545–46 (9th Cir. 2009) (remanding for further proceedings when

22 ALJ, among other things, “specifically credited” examining physician’s finding that Plaintiff had

23 moderate impairment in ability to interact with public, supervisors, and coworkers but “failed to

24 include [it] in the RFC finding”); Johnson v. Berryhill, No. 16-cv-2615 BTM(JMA), 2017 WL

25 3478762, at *3 (S.D. Cal. Aug. 14, 2017) (finding “legal error” where the ALJ gave “great weight”

26 to consultative examiner’s opinions, but failed to incorporate in her RFC assessment his finding

27 that Plaintiff was limited to occasional reaching with the right upper extremity); Burley v. Berryhill,

28 No. 2:16–cv–485–EFB, 2017 WL 3172983, at *4 (E.D. Cal. July 26, 2017) (“While the ALJ

1 purported to give substantial weight to Dr. Kalman’s opinion, the ALJ omitted from her RFC

2 determination any limitation regarding plaintiff’s ability to interact with co-workers and

3 supervisors, a limitation specifically assessed by Dr. Kalman. Furthermore, the ALJ’s RFC

4 determination assumes no impairment in plaintiff’s ability to perform such interactions. Thus, the

5 ALJ rejected Dr. Kalman’s opinion in that regard, but did so without any reason, much less a

6 specific and legitimate one. This constitutes reversible error.”).

7 Defendant contends the Court should affirm the ALJ’s RFC determination because it was

8 consistent with the opinion of consultative examiner Dr. Rajeswari Kumar, and thus was supported

9 by substantial evidence. (Doc. 18 at 15–20.) While the ALJ’s failure to include the cane use

10 limitation in the RFC determination was arguably consistent with the opinion of Dr. Kumar, who

11 found that Plaintiff could stand and walk at least two hours in an eight-hour day without an assistive

12 device (AR 413), the ALJ gave Dr. Kumar’s opinion less weight than Dr. Garfinkel’s, a credibility

13 determination neither party has challenged. The ALJ, as Defendant correctly points out, is

14 responsible for making credibility determinations, resolving conflicts in medical testimony, and

15 resolving ambiguities in the first instance. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999)

16 (citation omitted). Moreover, the ALJ did not cite Dr. Kumar’s opinion as reason why Dr.

17 Garfinkel’s opined need for a cane was rejected: instead, she noted that, in contrast to Dr. Kumar’s

18 finding, “the combination of knee pain and obesity could warrant cane use.” (AR 23 (emphasis

19 added).) On this record, the Court cannot and will not attempt to insert its own post hoc rationale

20 for the ALJ’s RFC determination. Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th

21 Cir. 2009) (“Long-standing principles of administrative law require us to review the ALJ’s decision

22 based on the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that

23 attempt to intuit what the adjudicator may have been thinking.”); Edwards v. Berryhill, CASE NO.

24 2:16-CV-01102-DWC, 2017 WL 615382, at *4 (W.D. Wash. Feb. 15, 2017) (same).

25 The Court agrees with Plaintiff that the ALJ’s legal error was not harmless. An ALJ’s error

26 is not harmless “unless it can confidently conclude that no reasonable ALJ, when fully crediting

27 the testimony, could have reached a different disability determination.” Stout, 454 F.3d at 1056;

28 see Robbins, 466 F.3d at 885 (holding that an ALJ’s error is harmless if it was “inconsequential to

1 the ultimate nondisability determination”). If fully credited, Dr. Garfinkel’s opinion supports the

2 medical necessity of the use of a cane for knee pain and balance, which is a more extensive

3 limitation than reflected in the ALJ’s RFC. Defendant’s policy rulings demonstrate that the use of

4 a “medically required hand-held assistive device,” while it does not rule out the ability to perform

5 sedentary work, may nevertheless “significantly erode” the occupational base for an individual who

6 must us such a device. TITLES II & XVI: DETERMINING CAPABILITY TO DO OTHER WORK-

7 IMPLICATIONS OF A RESIDUAL FUNCTIONAL CAPACITY FOR LESS THAN A FULL RANGE OF

8 SEDENTARY WORK, SSR 96-9P (S.S.A. July 2, 1996). “If a claimant has a genuine medical need

9 for a cane, such a limitation should be included in any hypothetical questioning of the VE.” Blanket

10 v. Berryhill, No. 2:16-CV-00001-LRS, 2017 WL 2234184, at *4 (E.D. Wash. May 22, 2017)

11 (explaining that “[t]he vocational effect of a cane restriction may vary as to each function an

12 individual can perform. It may limit standing, walking, lifting, carrying, pushing or pulling.”).

13 Here, the VE gave no testimony regarding whether the jobs she identified could be

14 performed if Plaintiff required the use of a cane.5 Thus, it is not clear from the record that the clerk

15 and operator jobs identified by the VE and which the ALJ found Plaintiff could perform are, in

16 fact, jobs that could be performed by a person with all of Plaintiff’s limitations, including the use

17 of a cane for knee pain and balance. The error is harmful because “[i]f an ALJ’s hypothetical does

18 not reflect all of the claimant’s limitations, then ‘the [vocational] expert’s testimony has no

19 evidentiary value to support a finding that the claimant can perform jobs in the national economy.’”

20 Bray, 554 F.3d at 1228 (quoting DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991)).

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22 5 Defendant asserts that Plaintiff waived the ability to challenge the ALJ’s findings at step five because Plaintiff’s non-

attorney representative failed to pose a hypothetical question to the VE at the hearing that included the need for a cane,

23 citing Meanel, 172 F.3d at 1115. (Doc. 18 at 18–19.) Such contention is without merit. To begin with, Defendant

cites no case law extending Meanel to non-attorney representatives. See Markell v. Berryhill, Case No. 17-cv-00792-

24 MEJ, 2017 WL 6316825, at *9 (N.D. Cal. Dec. 11, 2017). See also Parent v. Astrue, CV 10-144-M-JCL, 2011 WL

13136530, at *3 (D. Mont. Aug. 15, 2011) (“Because [the plaintiff] was assisted by a non-attorney representative,

25 rather than attorney, the Court will not go so far as to definitively say that [the plaintiff] has waived his right to raise

this argument on appeal.”). Even if Meanel applied to non-attorney representatives, however, Plaintiff preserved the

26 issue on appeal before this Court because, unlike the claimant in Meanel, she raised it before the Appeals Council (see

AR 271 (arguing to the Appeals Council that the ALJ “erred by not defining what she meant by no balancing in the

27 Sedentary RFC she gave,” noting that Plaintiff “uses a cane,” and citing SSR 96-9P)). See, e.g., Jose Alfredo G. v.

Saul, No. 3:19-cv-00852-RBM, 2019 WL 6652086, at *3 (S.D. Cal. Dec. 5, 2019) (claim preserved on appeal to district

28 court when raised before the Appeals Council); Susan M. v. Berryhill, No. 6:17-cv-1083-PK, 2018 WL 4692468, at *4

1 Accordingly, the ALJ’s failure to proffer any reason for not including the need for a cane assessed

2 by Dr. Garfinkel and/or to explain its rejection constitutes reversible error. See, e.g., Blanket, No.

3 2:16-CV-00001-LRS, 2017 WL 2234184, at *4 (finding reversible error where the ALJ considered

4 the plaintiff’s prescription for a cane in formulating his sedentary-level RFC but did not ask the VE

5 to consider the plaintiff’s use of a cane in their hypotheticals); Dillon v. Berryhill, No. 3:17-cv-

6 00597-LRH-WGC, 2018 WL 3521403, at *7 (D. Nev. June 18, 2018) (remanding for further

7 proceedings where “[n]either the ALJ’s discussion with the VE at the hearing, nor the decision

8 itself, discuss the use of the walker because of balance issues arising from the extension of the

9 radicular pain from one to both of Plaintiff’s lower extremities, or the extent to which such a finding

10 might erode the occupational base” of sedentary work). See also Parks v. Berryhill, No. C18-5006

11 MJP, 2018 WL 3751985, at *6 (W.D. Wash. Aug. 8, 2018) (concluding the ALJ committed harmful

12 error by failing to incorporate into the RFC portions of the medical opinions that were assigned

13 “great weight,” and thus “no vocational testimony in the record establishes whether or not there

14 would be jobs in significant numbers in the national economy that plaintiff can perform.”); Ortiz

15 v. Colvin, No. CV 13–02809–MAN, 2014 WL 4055782, at *6 (C.D. Cal. Aug. 14, 2014) (finding

16 harmful error where “[t]he VE’s testimony, upon which the ALJ relied to make his disability

17 determination, was based on an RFC that did not include all of plaintiff’s limitations.”).

18 B. Remand for Further Proceedings is Appropriate

19 Plaintiff requests the Court remand the case for further proceedings. (Doc. 19 at 6.) When

20 an ALJ commits error that is not harmless, “[t]he decision whether to remand for further

21 proceedings or simply to award benefits is within the discretion of [the] court.” McAllister v.

22 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.

23 1987)). Because further administrative review could remedy the ALJ’s error, remand for further

24 administrative proceedings, rather than an award of benefits, is warranted here. See Brown-Hunter

25 v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (remanding for an award of benefits is appropriate in

26 rare circumstances). See also Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981) (“If additional

27 proceedings can remedy defects in the original administrative proceeding, a social security case

28 should be remanded.”); Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (“Remand for

1 further administrative proceedings is appropriate if enhancement of the record would be useful.”).

2 Before ordering remand for an award of benefits, three requirements must be met: (1) the Court

3 must conclude that the ALJ failed to provide legally sufficient reasons for rejecting evidence; (2)

4 the Court must conclude that the record has been fully developed and further administrative

5 proceedings would serve no useful purpose; and (3) the Court must conclude that if the improperly

6 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled

7 on remand. Brown-Hunter, 806 F.3d at 495 (citations omitted). Even if all three requirements are

8 met, the Court retains flexibility to remand for further proceedings “when the record as a whole

9 creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the

10 Social Security Act.” Id. (citation omitted).

11 Here, remand for further administrative proceedings is appropriate. See, e.g., Dillon, 2018

12 WL 3521403, at *10. On remand, the ALJ shall reconsider the opinion of Dr. Garfinkel regarding

13 Plaintiff’s need for the use of a cane for knee pain and for balance, and either credit his opinion or

14 provide specific and legitimate reasons supported by substantial evidence for rejecting it. The ALJ

15 shall reassess Plaintiff’s RFC, considering the entirety of Dr. Garfinkel’s opinion. The ALJ shall

16 then proceed through steps four and five to determine what work, if any, Plaintiff can perform.

17 V. CONCLUSION AND ORDER

18 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by

19 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further

20 proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter judgment

21 in favor of Plaintiff Connie Streeter and against Defendant Andrew Saul, Commissioner of Social

22 Security.

23

IT IS SO ORDERED.

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Sheila K. Oberto

25 Dated: January 6, 2020 /s/ .

UNITED STATES MAGISTRATE JUDGE

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