Yolanda Catalina Miller v. Andrew M. Saul

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 YOLANDA C. M., Case No. CV 20-1339-RAO

12 Plaintiff,

13 v. MEMORANDUM OPINION AND

ORDER

14 ANDREW SAUL,

Commissioner of Social Security,

15 Defendant.

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17 I. INTRODUCTION

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Plaintiff Yolanda C. M.1 (“Plaintiff”) challenges the Commissioner’s denial of

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her application for supplemental security income (“SSI”).2 For the reasons stated

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below, the decision of the Commissioner is REVERSED and the action is

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REMANDED for further proceedings consistent with this Order.

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24 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil

25 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court

Administration and Case Management of the Judicial Conference of the United

26 States.

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2 Plaintiff does not challenge the denial of her application for disability insurance

benefits (“DIB”). (Joint Submission (“JS”) at 5.) Accordingly, the Court addresses

28 only Plaintiff’s challenge to the denial of her SSI claims.

1 II. SUMMARY OF PROCEEDINGS

2 On February 10, 2016, Plaintiff filed a Title II application for DIB and, on

3 January 9, 2017, she filed a Title XVI application for SSI, alleging in both

4 applications that she had been disabled since November 30, 2014, due to diabetes,

5 high blood pressure, “thyroid,” carpal tunnel, and “tumor on pituitary.”

6 (Administrative Record (“AR”) 85, 212, 245, 296.) Her DIB claims were denied

7 initially on July 28, 2016, and upon reconsideration on September 26, 2016. (AR 85,

8 202, 212.) On October 3, 2016, Plaintiff filed a written request for hearing, and a

9 hearing on both applications was held on September 26, 2018. (AR 175-92, 222-23,

10 245.) Appearing unrepresented, Plaintiff testified, along with an impartial vocational

11 expert. (AR 175-92.) On December 4, 2018, the Administrative Law Judge (“ALJ”)

12 found that Plaintiff had not been under a disability, pursuant to the Social Security

13 Act,3 from November 30, 2014, through the date of the decision. (AR 93.) The ALJ’s

14 decision became the Commissioner’s final decision when the Appeals Council

15 denied Plaintiff’s request for review. (AR 1-6.) Plaintiff filed this action on July 2,

16 2020. (Dkt. No. 1.)

17 The ALJ followed a five-step sequential evaluation process to assess whether

18 Plaintiff was disabled under the Social Security Act. Lester v. Chater, 81 F.3d 821,

19 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged

20 in substantial gainful activity since November 30, 2014, the alleged onset date. (AR

21 87.) At step two, the ALJ found that Plaintiff has the severe impairments of diabetes

22 mellitus with distal neuropathy and morbid obesity. (AR 87.) At step three, the ALJ

23 found that Plaintiff “does not have an impairment or combination of impairments that

24 meets or medically equals the severity of one of the listed impairments in 20 CFR

25 Part 404, Subpart P, Appendix 1.” (AR 89.)

26 3 Persons are “disabled” for purposes of receiving Social Security benefits if they are

27 unable to engage in any substantial gainful activity owing to a physical or mental

impairment expected to result in death, or which has lasted or is expected to last for

28 a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A).

1 Before proceeding to step four, the ALJ found that Plaintiff has the residual

2 functional capacity (“RFC”) to perform the full range of light work as defined in 20

3 C.F.R. §§ 404.1567(b) and 416.967(b). (AR 89.) At step four, based on Plaintiff’s

4 RFC and the vocational expert (“VE”)’s testimony, the ALJ found that Plaintiff is

5 capable of performing past relevant work as a caregiver as actually performed and as

6 an accounts receivable as actually and generally performed. (AR 92-93.)

7 Accordingly, the ALJ did not proceed to step five, and instead, found that there are

8 jobs that exist in significant numbers in the national economy that Plaintiff can

9 perform. (AR 23-24.) Accordingly, the ALJ found that Plaintiff “has not been under

10 a disability . . . from November 30, 2014, through the date of this decision.” (AR

11 93.)

12 III. STANDARD OF REVIEW

13 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s

14 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are

15 supported by substantial evidence, and if the proper legal standards were applied.

16 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “Substantial evidence .

17 . . is ‘more than a mere scintilla[,]’ . . . [which] means—and means only—‘such

18 relevant evidence as a reasonable mind might accept as adequate to support a

19 conclusion.’” Biestek v. Berryhill, —U.S. —, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d

20 504 (2019) (citations omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).

21 An ALJ can satisfy the substantial evidence requirement “by setting out a detailed

22 and thorough summary of the facts and conflicting clinical evidence, stating his

23 interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725

24 (9th Cir. 1998) (citation omitted).

25 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a

26 specific quantum of supporting evidence. Rather, a court must consider the record

27 as a whole, weighing both evidence that supports and evidence that detracts from the

28 Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)

1 (citations and internal quotations omitted). “‘Where evidence is susceptible to more

2 than one rational interpretation,’ the ALJ’s decision should be upheld.” Ryan v.

3 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart,

4 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins v. Social Sec. Admin., 466 F.3d

5 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing

6 the ALJ’s conclusion, we may not substitute our judgment for that of the ALJ.”). The

7 Court may review only “the reasons provided by the ALJ in the disability

8 determination and may not affirm the ALJ on a ground upon which he did not rely.”

9 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340

10 F.3d 871, 874 (9th Cir. 2003)).

11 IV. DISCUSSION

12 Plaintiff presents two issues for review as to her Title XVI claim: (1) whether

13 the ALJ properly considered the relevant medical evidence of record in her

14 determination of severe impairments and in her assessment of Plaintiff’s RFC; and

15 (2) whether the ALJ properly considered Plaintiff’s subjective statements in her

16 assessment of Plaintiff’s RFC. (JS at 4-14, 28-31.) For the reasons below, the Court

17 agrees with Plaintiff that remand is warranted.

18 A. The ALJ’s Consideration of the Relevant Medical Evidence

19 Plaintiff contends that the ALJ failed to properly consider the relevant medical

20 evidence in determining her severe impairments and in assessing her RFC. (JS at 4-

21 14.)

22 1. Step Two

23 Plaintiff appears to contend that the ALJ failed to properly consider the

24 severity of the combination of impairments affecting her knees, legs, back, hands,

25 and mental functioning at step two. (JS at 5.)

26 a. Applicable Legal Standards

27 The step two inquiry is meant to be a de minimis screening device. Smolen v.

28 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137,

1 153–54, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987)). At step two, the ALJ identifies

2 a claimant’s severe impairments, i.e., impairments that significantly limit his or her

3 ability to do basic work activities.4 20 C.F.R. § 416.920(a)(4)(ii); Smolen, 80 F.3d at

4 1290. A determination that an impairment is not severe requires evaluation of

5 medical findings describing the impairment, and an informed judgment as to its

6 limiting effects on a claimant’s ability to do basic work activities. Social Security

7 Ruling (“SSR”) 85-28, 1985 WL 56856, at *4 (Jan. 1, 1985).5

8 The ALJ must take into account subjective symptoms in assessing severity,

9 Smolen, 80 F.3d at 1290, but “medical evidence alone is evaluated . . . to assess the

10 effects of the impairment(s) on ability to do basic work activities.” SSR 85-28 at *4.

11 An impairment or combination thereof may properly be found not severe if the

12 clearly established objective medical evidence shows only slight abnormalities that

13 minimally affect a claimant’s ability to do basic work activities. Webb v. Barnhart,

14 433 F.3d 683, 687 (9th Cir. 2005); Smolen, 80 F.3d at 1290.

15 b. The ALJ’s Decision

16 Here, at step two, the ALJ discussed Plaintiff’s bilateral knee pain, lower back

17 pain, carpal tunnel syndrome, and memory disorder and found they were not severe

18 impairments. (AR 87-88.) The ALJ noted that despite diagnostic imaging showing

19 mild degenerative joint disease in the knees, Plaintiff did not complain of significant

20 joint pain and/or weakness; physical examinations revealed the lower extremities

21 were without deformity, clubbing, cyanosis or edema; there was normal muscle tone,

22 strength, and range of motion; and there were no significant neurological changes.

23 (AR 88, 427-28, 439, 472, 502, 555.) Regarding Plaintiff’s lower back pain, the ALJ

24 noted that despite evidence of chronic L5, S1 radiculopathy and an MRI of the lumbar

25 spine showing mild to moderate degenerative changes, physical examinations noted

26 4 Basic work activities are “the abilities and aptitudes necessary to do most jobs[.]”

27 20 C.F.R. § 416.921(b).

5 SSRs do not have the force of law, but a reviewing court generally accords them

28 some deference. Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001).

1 musculoskeletal structures were near normal with normal symmetry, tone, strength,

2 and range of motion; there was no effusion, instability or tenderness; and there were

3 no significant neurological changes. (AR 88, 397, 428, 439, 472, 523-24.) Regarding

4 Plaintiff’s carpal tunnel syndrome, the ALJ noted that diagnostic testing revealed

5 bilateral median nerve dysfunction at the wrist consistent with carpal tunnel

6 syndrome; Plaintiff denied joint pain, weakness and/or issues with coordination;

7 physical examinations were normal and the upper extremities were without

8 deformities, clubbing, cyanosis or edema; normal muscle tone, strength and range of

9 motion were noted; and there were no significant neurological changes. (AR 87-88,

10 396, 428, 439, 472-74.) Regarding Plaintiff’s mental disorder, the ALJ found that

11 Plaintiff’s memory remained intact on psychiatric examinations. (AR 89, 436.)

12 c. Discussion

13 The overall treatment record supports the ALJ’s finding at step two. Plaintiff

14 presents a different interpretation of the objective medical evidence and diagnoses.

15 (JS at 7-14.) While Plaintiff’s interpretation of the evidence is not unreasonable,

16 neither is the ALJ’s interpretation. See Burch, 400 F.3d at 679 (“Where evidence is

17 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that

18 must be upheld.”). Further, mere diagnosis of an impairment, or even treatment for

19 it, is insufficient to establish severity at step two, especially when the objective

20 medical evidence in the record fails to show any work-related limitations connected

21 to the impairment. See Harvey v. Colvin, 2013 WL 3899282, at *5 (C.D. Cal. July

22 29, 2013) (citing Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993)). The Court

23 is not persuaded by the additional evidence Plaintiff submitted to the Appeals

24 Council, dated after the ALJ’s decision, which the Appeals Council found did not

25 relate to the period at issue. (JS 10-11; AR 1-81, 100-74.)

26 Even assuming that the ALJ erred in making her step two determination, any

27 error was harmless because she considered all symptoms when determining

28 Plaintiff’s RFC. (AR 89.) See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)

1 (even if the ALJ erred by not including an impairment at step two, any error was

2 harmless because the ALJ considered the limitations posed thereby in later steps of

3 the sequential evaluation process).

4 Accordingly, remand is not warranted at step two.

5 2. Medical Opinion Evidence

6 Plaintiff contends that the ALJ erred in considering the medical opinion

7 evidence in assessing her RFC. (JS at 6.)

8 a. Applicable Legal Standards

9 The ALJ is responsible for assessing a claimant’s RFC “based on all of the

10 relevant medical and other evidence.” 20 C.F.R. § 416.945(a)(3); see Robbins, 466

11 F.3d at 883 (citing SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996)). In doing so,

12 the ALJ may consider any statements provided by medical sources, including

13 statements that are not based on formal medical examinations. See 20 C.F.R.

14 § 416.927.6 An ALJ’s determination of a claimant’s RFC must be affirmed “if the

15 ALJ applied the proper legal standard and his decision is supported by substantial

16 evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); accord Morgan

17 v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).

18 Courts give varying degrees of deference to medical opinions based on the

19 provider: (1) treating physicians who examine and treat; (2) examining physicians

20 who examine, but do not treat; and (3) non-examining physicians who do not examine

21 or treat. Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009);

22 see also 20 C.F.R. § 416.927. Most often, “[t]he medical opinion of a claimant’s

23 treating physician is given ‘controlling weight’ so long as it ‘is well-supported by

24 6 For all claims filed on or after March 27, 2017, 20 C.F.R. § 416.920c applies, not

25 § 416.927. The new regulations provide that the Social Security Administration “will

not defer or give any specific evidentiary weight, including controlling weight, to any

26 medical opinion(s) or prior administrative medical finding(s), including those from

27 your medical sources.” 20 C.F.R. § 416.920c. The claim here, however, was filed

before March 27, 2017. Thus, the Court analyzes Plaintiff's claim pursuant to the

28 treating source rule set forth in § 416.927.

1 medically acceptable clinical and laboratory diagnostic techniques and is not

2 inconsistent with the other substantial evidence in [the claimant’s] case record.’”

3 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R.

4 § 404.1527(c)(2)). Generally, the opinion of a treating physician is given greater

5 weight than the opinion of a non-treating physician, and the opinion of an examining

6 physician is given greater weight than the opinion of a non-examining physician. See

7 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).

8 The ALJ must provide “clear and convincing” reasons to reject a treating or

9 examining physician’s uncontradicted opinion. Trevizo, 871 F.3d at 675; Lester, 81

10 F.3d at 830-31. When a treating or examining physician’s opinion is contradicted by

11 another opinion, the ALJ may reject it only by providing specific and legitimate

12 reasons supported by substantial evidence in the record. Orn, 495 F.3d at 633; Lester,

13 81 F.3d at 830; Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th

14 Cir. 2008). “An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting

15 out a detailed and thorough summary of the facts and conflicting evidence, stating

16 his interpretation thereof, and making findings.’” Garrison, 759 F.3d at 1012

17 (citation omitted). Although the opinion of a non-examining physician “cannot by

18 itself constitute substantial evidence that justifies the rejection of the opinion of either

19 an examining physician or a treating physician,” such an opinion may serve as

20 substantial evidence when it is consistent with and supported by other independent

21 evidence in the record. Lester, 81 F.3d at 830-31; see also Bray v. Comm’r of Soc.

22 Sec. Admin., 554 F.3d 1219, 1221, 1227 (9th Cir. 2009) (finding ALJ properly relied

23 on non-examining state agency physician’s assessment in determining the claimant’s

24 RFC and in rejecting the treating doctor’s opinion regarding the claimant’s functional

25 limitations).

26 b. The ALJ’s Decision

27 In determining the RFC, the ALJ gave great weight to the opinions of the non-

28 examining State Agency physicians, who found Plaintiff was capable of a full range

1 of light work. (AR 91.) On initial review of Plaintiff’s DIB claim, A. Lizarraras,

2 M.D., evaluated the medical evidence and opined that Plaintiff could perform light

3 work, noting that the longitudinal evidence showed a stable pituitary macroadenoma,

4 hypothyroidism and thyroiditis. (AR 198-99.) In July 2016, Dr. Lizarraras

5 determined that Plaintiff’s condition was not disabling on any date through December

6 31, 2014, when Plaintiff was last insured for disability benefits. (AR 200.) On

7 reconsideration of Plaintiff’s DIB claim in September 2016, M. Amado, M.D.

8 affirmed a light RFC between November 30, 2014 and December 31, 2014, noting

9 that most of the medical evidence of record on file was past the date last insured.

10 (AR 207.) The ALJ found the State Agency opinions consistent with the medical

11 evidence. (AR 91-92.)

12 The ALJ gave less weight to the April 2018 treating opinion of Samuel Wilson,

13 M.D., who opined that Plaintiff could stand or sit for 30 minutes due to neuropathic

14 and right knee pain, could walk 25 feet without stopping, would need to lie down

15 during the day, could rarely handle and finger or reach down, could lift and carry less

16 than five pounds, suffered from anxiety and panic attacks, needed help with her

17 activities of daily living, and could not work. (AR 92, 504-09.) The ALJ discounted

18 Dr. Wilson’s opinion because his assessed limitations were inconsistent with and not

19 supported by his own progress notes and medical evidence, and he did not provide

20 any significant treatment for Plaintiff’s carpal tunnel syndrome. (AR 92.)

21 c. Discussion

22 Plaintiff argues that the ALJ erred in determining her RFC because (1) the

23 State Agency physicians’ opinions cannot form the sole basis for the RFC

24 assessment; and (2) the State Agency physicians’ opinions are from 2016 and only

25 address Plaintiff’s application for Title II benefits, focusing on her condition prior to

26 her date last insured in 2014, because she had not yet filed her Title XVI application.

27 (JS at 6.)

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1 Here, the ALJ’s decision is not supported by substantial evidence. The record

2 contains medical opinion evidence from the State Agency physicians and Dr. Wilson,

3 a treating source.7 (AR 198-99, 207, 504-09.) The ALJ effectively rejected Dr.

4 Wilson’s opinion. (AR 92.) This left the State Agency physicians’ opinions, which

5 the ALJ found consistent with the medical evidence. (AR 91-92.) The ALJ noted

6 that despite Plaintiff’s morbid obesity, distal polyneuropathy, benign pituitary mass,

7 carpal tunnel syndrome and degeneration, her physical examinations were “largely

8 unremarkable” aside from mild decrease in sensation. (AR 91, 428, 439, 472, 550.)

9 These physical examinations show no deformities, clubbing, cyanosis, or edema in

10 extremities; normal musculoskeletal tone, strength and range of motion; no effusions,

11 instability or tenderness to palpation; no neurological changes; decreased pulse but

12 normal vibration sensation in feet; and gait within normal limits. (AR 428, 439, 472,

13 550.) In general, these findings would permit the State Agency physicians’ opinions

14 to constitute substantial evidence. See Morgan, 169 F.3d at 600 (holding a non-

15 examining physician’s opinion can constitute substantial evidence if it is supported

16 by other evidence in the record and is consistent with it). Here, however, the State

17 Agency physicians’ opinions have limited probative value regarding Plaintiff’s SSI

18 claim because the State Agency physicians considered the medical evidence only as

19 it related to Plaintiff’s DIB claim, i.e., for the period between November 30, 2014 to

20 December 31, 2014. (AR 196, 207.) See Coffman v. Colvin, 2015 WL 5826790, at

21 *4 (C.D. Cal. Sept. 30, 2015) (remanding where ALJ rejected all treating and

22 examining opinions and remaining State Agency opinions addressed the medical

23 evidence only as to plaintiff’s DIB claim). For the later-filed SSI claim, the period

24 between December 31, 2014 and the date of the ALJ’s decision was relevant, and the

25 State Agency physicians’ opinions did not address the medical evidence as it related

26 to that period. Thus, it appears that the RFC assessment for the period after

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7 The consultative examination by Dr. Liu on January 15, 2019, occurred after the

28 ALJ’s decision and does not relate to the period at issue. (AR 2, 45-49.)

1 December 31, 2014, was mistakenly based on the State Agency opinions. To the

2 extent the RFC assessment post-December 31, 2014 was based solely on the ALJ’s

3 interpretation of the medical evidence, she was not qualified to make a functional

4 assessment as a layperson. Id. (“[A]n ALJ is simply not qualified to interpret raw

5 medical data in functional terms.”) (quoting Padilla v. Astrue, 541 F. Supp. 2d 1102,

6 1106 (C.D. Cal. 2008) (quoting Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)

7 (per curiam), and citing Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975)).

8 The Commissioner asserts that the ALJ is not precluded from relying on the

9 State Agency physicians’ opinions on the ground that their review was prior to

10 Plaintiff’s Title XVI application, but cites only general statutes relating to what

11 evidence a State Agency physician considers, 20 C.F.R. §§ 404.1513(a)(1),

12 416.913(a)(1). The Commissioner further argues that in addition to the longitudinal

13 record, the ALJ also considered the third-party testimony and Plaintiff’s subjective

14 allegations in determining Plaintiff’s RFC. (JS at 15.) The ALJ, however, essentially

15 rejected the third-party testimony and Plaintiff’s subjective allegations and

16 erroneously relied on the State Agency physicians’ opinions regarding her DIB

17 claim. (AR 90-92.) The Court finds that the ALJ erred by formulating an RFC

18 without a physician’s assessment of Plaintiff’s functional capacity after December

19 31, 2014.8 Perez v. Sec’y of Health and Human Servs., 958 F.2d 445, 446 (1st Cir.

20 1991) (per curiam) (“[W]here an ALJ reaches conclusions about [a] claimant’s

21 physical exertional capacity without any assessment of residual functional capacity

22 by a physician, the ALJ’s conclusions are not supported by substantial evidence and

23 it is necessary to remand for the taking of further functional evidence.”). It was

24 improper for the ALJ to make an RFC determination for Plaintiff’s SSI claim based

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8 The fact that subsequent evidence was introduced after the State Agency review is

26 not the issue here, but rather that the State Agency physicians’ opinions addressed

27 the medical evidence only as it related to Plaintiff’s DIB claim, and there was no

other medical opinion in the record, except for Dr. Wilson’s rejected opinion, that

28 addressed the medical evidence as it related to Plaintiff’s later-filed SSI claim.

1 on the State Agency physicians’ opinions solely regarding Plaintiff’s DIB claim.

2 The Court cannot find the ALJ’s error harmless, as it cannot confidently

3 conclude that the ALJ’s RFC assessment and the non-disability decision would have

4 been the same absent such error. Dr. Wilson’s opinion suggests that Plaintiff’s

5 functional limitations would prevent Plaintiff from performing all work. (AR 504-

6 09.)

7 Accordingly, remand is warranted to reevaluate the medical opinion evidence.

8 B. The Court Declines to Address Plaintiff’s Remaining Issue

9 Having found that remand is warranted, the Court declines to address

10 Plaintiff’s remaining issue. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012)

11 (“Because we remand the case to the ALJ for the reasons stated, we decline to reach

12 [plaintiff’s] alternative ground for remand.”); see also Augustine ex rel. Ramirez v.

13 Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not

14 address the other claims plaintiff raises, none of which would provide plaintiff with

15 any further relief than granted, and all of which can be addressed on remand.”).

16 C. Remand for Further Administrative Proceedings

17 Plaintiff contends that the ALJ’s decision should be vacated and the matter

18 remanded for further proceedings. (JS at 38-39.) The Commissioner agrees that

19 should the Court find reversible error, the proper remedy is remand for further

20 proceedings. (JS at 39.)

21 The Court agrees with the parties that remand for further administrative

22 proceedings on Plaintiff’s SSI claim is appropriate, as further administrative review

23 could remedy the ALJ’s errors. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th

24 Cir. 2015) (remanding for an award of benefits is appropriate in rare circumstances).9

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9 Before ordering remand for an award of benefits, three requirements must be met:

26 (1) the Court must conclude that the ALJ failed to provide legally sufficient reasons

27 for rejecting evidence; (2) the Court must conclude that the record has been fully

developed and further administrative proceedings would serve no useful purpose; and

28 (3) the Court must conclude that if the improperly discredited evidence were credited

1 || The Court finds that as to Plaintiff's SSI claim, the ALJ erred in considering the

2 || medical opinion evidence in assessing her RFC. On remand, the ALJ shall solicit the

3 || expertise of a medical advisor to interpret the medical evidence generated after

4 || Plaintiff's date last insured. The ALJ shall then reassess Plaintiff's RFC as to

5 || Plaintiffs SSI claim and proceed to step four and, if necessary, step five. This order

6 || does not preclude the ALJ from considering, on remand, any other arguments raised

7 || by Plaintiff.

g | Vv. CONCLUSION

9 IT IS ORDERED that Judgment shall be entered REVERSING the decision of

10 || the Commissioner denying benefits as to Plaintiffs Title XVI SSI claim, and

11 || REMANDING the matter for further proceedings consistent with this Order.

12 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this

13 || Order and the Judgment on counsel for both parties.

14 .

Rayeeis, QA. QC

15 || DATED: July 6, 2021

16 ROZELLA A. OLIVER

UNITED STATES MAGISTRATE JUDGE

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18

19 NOTICE

20 || THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,

5 LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.

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23

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25 | ———_—————___ oo

as true, the ALJ would be required to find the claimant disabled on remand. /d.

26 (citations omitted). Even if all three requirements are met, the Court retains

27 || flexibility to remand for further proceedings “when the record as a whole creates

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

28 || the Social Security Act.” /d. (citation omitted).

13