# Royal v. Kijakazi

> District Court, S.D. California · January 23, 2023

URL: https://www.frixlaw.com/law-library/cases/10087105

## Case

- **Court:** District Court, S.D. California
- **Decided:** January 23, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- reversing an ALJ’s selective reliance 1 “on some entries in [the claimants records while ignoring] the many others that indicated 2 continued, serious impairment”
- noting that an ALJ has a duty “to fully and 18 fairly develop the record and to assure the claimant’s interest are considered.”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 CYNTHIA R.,1 Case No.: 21cv1612-BAS(LR)

12 Plaintiff,
REPORT AND
13 v. RECOMMENDATION RE:
(1) PLAINTIFF’S MOTION FOR
14 KILOLO KIJAKAZI, Acting
SUMMARY JUDGMENT AND
Commissioner of the Social Security
15 (2) DEFENDANT’S CROSS-MOTION
Administration,
FOR SUMMARY JUDGMENT
16
Defendant. [ECF NO. 15; 19]
17
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19 This Report and Recommendation is submitted to the Honorable Cynthia A.
20 Bashant, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local
21 Rule 72.1(c) of the United States District Court for the Southern District of California.
22 On September 15, 2021, Plaintiff Cynthia R. (“Plaintiff”) filed a Complaint pursuant to
23 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social
24 Security denying her application for a period of disability and disability insurance
25
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27 1 In the interest of privacy, this Report and Recommendation uses only the first name and initial of the
last name of the non-government party or parties in this case. See S.D. Cal. Civ. R. 7.1(e)(6)(b).
28
1 benefits. (Compl., ECF No. 1.)
2 Now pending before the Court are the parties’ Cross-Motions for Summary
3 Judgment. (ECF No. 15, 19.) For the reasons set forth below, this Court
4 RECOMMENDS that Plaintiff's Motion for Summary Judgment be GRANTED, and
5 Defendant's Cross-Motion for Summary Judgment be DENIED. This Court further
6 RECOMMENDS the case be REMANDED for further proceedings.
7 I. PROCEDURAL BACKGROUND
8 On July 3, 2018, Plaintiff filed her first application for disability insurance
9 benefits, alleging disability beginning on March 31, 2015. (Certified Admin. R. 337,
10 ECF No. 11 (“AR”).) Plaintiff then modified her alleged disability onset date in her
11 original application to September 14, 2012. (Id. at 132-33.) After her application was
12 denied initially and on reconsideration, Plaintiff requested a hearing before an
13 Administrative Law Judge (“ALJ”). (Id. at 198.) On May 15, 2020, a hearing was held
14 before ALJ James Delphey, which was followed by a supplemental hearing on June 5,
15 2020, during which Plaintiff was represented by counsel. (Id. at 56-118.) A vocational
16 expert (“VE”) was also present at both hearings. (See id.) On October 29, 2020, the ALJ
17 found that Plaintiff was not disabled between her alleged disability onset date of
18 September 14, 2012 and her date last insured (“DLI”) of March 31, 2013. (See id. at 27.)
19 On December 21, 2020, Plaintiff requested that the Appeals Council review the ALJ’s
20 decision. (Id. at 258.)
21 On July 15, 2021, the Appeals Council denied Plaintiff’s request to review the
22 ALJ’s decision. (See id. at 1-6.) Plaintiff filed the instant civil action on September 15,
23 2021. (See Compl., ECF No. 1.)
24 II. THE SEQUENTIAL DISABILITY PROCESS
25 The initial burden of proof rests upon the claimant to establish disability. See
26 Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet his burden, the
27 claimant must demonstrate an “inability to engage in any substantial gainful activity by
28 reason of any medically determinable physical or mental impairment which can be
1 expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C.
2 § 423(d)(1)(A). The Commissioner has established a five-step process for determining
3 whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§
4 404.1520, 416.920. At the first step of the five-step sequential evaluation process, the
5 ALJ must determine if a claimant is engaged in “substantial gainful activity”; if so, the
6 claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At the second
7 step, the ALJ must determine whether the claimant has a “severe medically determinable
8 physical or mental impairment” or combination of impairments that has lasted or is
9 expected to last for a continuous period of at least 12 months; if not, the claimant is not
10 disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); see also 20 C.F.R.
11 §§ 404.1509, 416.909. At the third step, the ALJ must determine if the claimant's
12 impairment(s) meets or equals that of a listed impairment; if so, the claimant is disabled.
13 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At the fourth step, the ALJ must
14 determine whether, based on the claimant's residual functional capacity, the claimant can
15 perform his or her past relevant work; if so, the claimant is not disabled. 20 C.F.R.
16 §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At the fifth step, the ALJ must determine
17 whether, based on the claimant's residual functional capacity, age, education, and work
18 experience, the claimant can make an adjustment to other work; if so, the claimant is not
19 disabled. 20 C.F.R. § 404.1520(a)(4)(v), 416.920(a)(4)(v).
20 III. SUMMARY OF THE ALJ’S FINDINGS
21 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
22 activity between the alleged onset of her disability on September 14, 2012, and her DLI
23 of March 31, 2013. (See AR at 17-18.) At step two, the ALJ found that Plaintiff had the
24 following impairments: coronary artery disease. (See id. at 18-19.) At step three, the
25 ALJ found that Plaintiff did not have an impairment or combination of impairments that
26 met or medically equaled the severity of one of the impairments listed in the
27 Commissioner’s Listing of Impairments. (See id. at 20.) Next, the ALJ determined that
28 Plaintiff has the residual functional capacity (“RFC”) to “perform medium work as
1 defined in 20 CFR 404.1567(c) except that the claimant was frequently able to reach,
2 handle, finger and feel bilaterally; frequently balance, stoop or crouch; occasionally kneel
3 or crawl; frequently climb ramps or stairs; and occasionally climb ladders or scaffolding,
4 but never climb ropes.” (Id. at 20-21.)
5 At step four, the ALJ adduced and accepted the VE’s testimony that a hypothetical
6 person with Plaintiff’s vocational profile and RFC would be able to perform her past
7 relevant work, as well as other unskilled occupations existing in significant numbers in
8 the national economy. (See id. at 24-26.) The ALJ then proceeded to step five of the
9 sequential evaluation process. (See id. at 25.) Based on the VE’s testimony that a
10 hypothetical person with Plaintiff’s vocational profile and RFC could perform the
11 requirements of occupations that existed in significant numbers in the national
12 economy—such as assembler, marker, and office helper—the ALJ found that Plaintiff
13 was not disabled. (See id. at 26-27.)
14 In determining that Plaintiff was not disabled prior to her DLI, the ALJ found that
15 Plaintiff’s “medically determinable impairments could reasonably be expected to cause
16 [her] alleged symptoms” but that Plaintiff’s statements “concerning the intensity,
17 persistence and limiting effects of these symptoms are not entirely consistent with the
18 medical evidence and other evidence in the record,” particularly with regard to the period
19 between Plaintiff’s alleged onset date of September 14, 2012 and her DLI of March 31,
20 2013. (Id. at 22.) In reaching this finding, the ALJ purported to give reduced weight
21 to—and as a practical matter rejected—the opinions of Doctors Richard Haas, Gary
22 Shima, and Andrew Biggs, as well as Nurse Practitioner Nadine Batac, who opined that
23 Plaintiff did not have the residual functional capacity to sustain full-time work between
24 the alleged onset date of her symptoms and her DLI. (Id. at 23-24.)
25 IV. RELEVANT FACTUAL BACKGROUND
26 The administrative record in this case contains approximately seven years of
27 medical records that reflect Plaintiff’s treatment for a multitude of symptoms, pain
28 management consultations, and specialist evaluations, which culminated in Plaintiff’s
1 diagnosis with a rare genetic disorder known as mitochondrial encephalomyopathy, lactic
2 acidosis, and stroke-like symptoms (“MELAS”)3 in 2017 by Dr. Haas, a geneticist and
3 metabolic disease specialist at the University of California San Diego (“UCSD”). (See
4 id. at 23, 856). Treatment notes by healthcare providers after Plaintiff’s MELAS
5 diagnosis—in some cases the same ones who treated her before her diagnosis—reflect
6 severe symptoms related to the condition. Although the parties do not dispute that
7 Plaintiff eventually became disabled, the inquiry in this case centers around Plaintiff’s
8 symptoms between her alleged onset date of September 14, 2012, and her DLI of March
9 31, 2013. The Court briefly summarizes relevant medical records at issue below.
10 A. Dr. Shima
11 Gary Shima, M.D., was Plaintiff’s primary care physician who treated Plaintiff
12 from her alleged onset date in September of 2012, through at least 2019. (See AR 472-
13 74; 2136) Although many of Dr. Shima’s progress notes for consultations are difficult to
14 read, treatment records dated between September of 2012 and 2013 note Plaintiff’s
15 complaints of fatigue and pain. (See, e.g., id. at 2137 (noting “chronic fatigue—pain
16 syndrome” on a form entitled “Conditions to Manage”); 2140 (noting that Plaintiff was
17 “very fatigued” and “needs help” for fatigue on a treatment note form dated January of
18 2013).) Despite several treatments in which Dr. Shima administered Argentyn 23
19 injections for immune system support in September of 2012, Plaintiff still reported
20 fatigue in January of 2013. (See id. at 472-74). Dr. Shima then ordered a blood panel in
21 February of 2013, after which he continued to prescribe supplements for Plaintiff’s
22 complaints of low energy and pain. (See, e.g., id. at 493-94.) Treatment notes indicate
23 that Plaintiff continued to see Dr. Shima until at least 2015, during which she was
24

25
26 3 Mitochondrial encephalomyopathy, lactic acidosis, and stroke-like episodes (“MELAS”) is a condition
that affects particularly the brain, nervous system, and muscles. The symptoms of MELAS often appear
27 in childhood after a period of normal development, and early symptoms may include muscle weakness
and pain, headaches, and seizures. See Pope v. Sec’y of Health & Hum. Servs., No. 14-078V, 2017 WL
28
1 prescribed a number of medications and treated for various symptoms like weakness,
2 fatigue, and pain. (See id. at 494-508.) Treatment notes during these sessions assess
3 “muscle pain,” “muscle cramps,” and intravenous treatment for fatigue, energy levels,
4 and immune system support. (See id.)
5 After Plaintiff was diagnosed with MELAS by Dr. Haas at UCSD and following
6 the results of an unspecified “specialist workup,” Dr. Shima assessed on a multiple
7 impairment questionnaire dated in 2019 that Plaintiff’s symptoms of fatigue,
8 chronic/daily muscle pain, gastrointestinal distress, and others were related to MELAS.
9 (See id. at 2160.) Dr. Shima assessed a number of restrictions related to Plaintiff’s
10 participation in a competitive work environment in this multiple impairment
11 questionnaire, noting that Plaintiff could sit for less than one hour, must frequently get up
12 to move around for thirty to sixty minutes, and would need to frequently elevate her legs
13 and take unscheduled breaks during an eight-hour workday. (See, e.g., id. at 2162-64.)
14 Dr. Shima also assessed that Plaintiff would be absent from work more than three times a
15 month due to her impairments. (See id. at 2164.) The multiple impairment questionnaire
16 noted that the symptoms and limitations it assessed applied as far back as September 14,
17 2012, and explained that Plaintiff “rapidly progressed in disability—so by 2015 she
18 became more wheelchair bound.” (Id. at 2164.) Importantly, in a letter dated April 5,
19 2019, Dr. Shima noted that Plaintiff had been diagnosed with MELAS, had been seen by
20 “a constellation of specialists,” and had been permanently disabled since 2012. (Id. at
21 2165.)
22 B. Dr. Biggs
23 Plaintiff first saw Andrew Biggs, D.O., in October of 2015 during her course of
24 treatment with healthcare providers at Naval Hospital Camp Pendleton, where she was
25 hospitalized on October 28, 2015 for worsening pain and suicidal ideation. (See id.at
26 682-87, 1249; Pl.’s MSJ at 8.) Dr. Biggs notes in a multiple impairment questionnaire
27 filled out in 2018 that he acted as Plaintiff’s “primary care manager,” interfacing with
28 Plaintiff “in-person or online” as needed. (See AR at 1249.) The multiple impairment
1 questionnaire notes that doctors had been unable to rule out other causes of Plaintiff’s
2 condition until she was definitively diagnosed with MELAS by Dr. Haas at UCSD:
3 Routine testing for possible common causes of patient’s
condition were performed by myself and other physicians in the
4
Internal Medicine Dept of Naval Hospital Camp Pendleton.
5 However, due to the severity of patient’s condition and the
complexity of symptoms, definitive diagnoses was [sic] made
6
with the aid of specialists (to which patient was referred) in the
7 fields of genetics, metabolics, neurology, rheumatology,
cardiology, pain management and others.
8

9 (Id. at 1249.) The multiple impairment questionnaire describes the nature of Plaintiff’s
10 pain as Central Pain Syndrome and Allodynia, “both presumably as a result of ongoing
11 muscle degeneration due to MELAS.” (Id. at 1266.)
12 Treatment notes from Dr. Biggs’ consultations with Plaintiff in 2017 indicate that
13 she experienced generalized fatigue and pain. (See AR at 871.) These notes indicate that
14 Plaintiff’s symptoms progressed until Dr. Haas diagnosed Plaintiff with MELAS, which
15 Dr. Biggs describes as consistent with the genetic defect, including generalized muscle
16 weakness, chronic pain syndrome, and other mitochondrial metabolism disorders. (Id. at
17 872.) In one note written in November of 2017, Dr. Biggs reported that Plaintiff
18 mentioned being bedridden for the past three years, and had been selected for a clinical
19 trial for a new medication to address mitochondrial disorders. (See id. at 870.)
20 In the multiple impairment questionnaire—dated April 17, 2018, Dr. Biggs
21 assessed several severe limitations to Plaintiff’s performance during an eight-hour
22 workday, including that Plaintiff could stand or walk for less than one hour, must
23 frequently elevate her legs to waist level when sitting, and that she would frequently
24 experience pain and fatigue severe enough to interfere with her attention. (See id. at
25 1267-68.) Dr. Biggs assessed that Plaintiff’s symptoms leading to these limitations had
26 been present since “birth, worsening with age.” (Id. at 1269.) Importantly, Dr. Biggs
27 assessed that as a result of her condition and the complexity of her symptoms, Plaintiff’s
28 symptoms were frequently severe enough to interfere with her attention and
1 concentration—and that Plaintiff would need allowances for frequent time off-task,
2 unscheduled breaks, and absences from work. (See id. at 24, 1268.)
3 C. N.P. Batac
4 Nadine Batac, N.P., first evaluated Plaintiff in July of 2016 as part of Plaintiff’s
5 consultation with providers at Synovation Medical Group. (Id. at 2105-06.) N.P. Batac’s
6 progress notes dated through April 30, 2018, document Plaintiff’s course of pain
7 management treatment. (See, e.g., id. at 1897-1901 (documenting progressive pain and
8 mobility problems); 2009-13 (documenting chronic pain that started “many years ago” in
9 January of 2017); 2019 (recommending follow-up appointment with neurology consult to
10 address “possible central component of pain” in July of 2016); 1959 (noting “chronic
11 muscle pain” that was described as aching and burning in May of 2017 and opioid
12 intolerance); 2017-18 (describing a slow antalgic gait, difficulty standing, and the use of
13 a wheelchair for mobility in July of 2016).)
14 After Plaintiff’s MELAS diagnosis at UCSD, N.P. Batac’s treatment notes explain
15 that Plaintiff’s symptoms were consistent with the condition, noting that Plaintiff
16 exhibited symptoms such as chronic fatigue, decreased range of motion, impaired sleep,
17 muscle atrophy, spasms and weakness, neglect, and sensitivity to touch or cold, all of
18 which interfered with Plaintiff’s ability to perform activities of daily living. (See id. at
19 1256.) Clinical and laboratory findings are included with a pain assessment dated August
20 1, 2018, which indicate tenderness to palpitation of the paraspinal musculature, bilateral
21 lower extremity paresthesia, decreased lower extremity reflexes, joint pain, and severe
22 pain in Plaintiff’s arms and hands. (Id. at 1254.) N.P. Batac noted that Plaintiff’s
23 MELAS diagnosis was accomplished with the “aid of neurology, internal medicine,
24 metabolic [and] genetic specialists. (Id.) N.P. Batac also assessed a number of severe
25 limitations that Plaintiff would experience with working, including that her pain got
26 worse with “walking, sitting, bending, extension, twisting, working [and] exercising,
27 fatigue, stress, noise, traveling . . .” (Id. at 1255) Additionally, the pain assessment
28 opines that Plaintiff could sit for less than one hour, would need to get up frequently
1 when sitting, and move around frequently for at least ten to sixty minutes at a time. (Id.
2 at 1258.) Aggravating factors of Plaintiff’s symptoms in a work environment mentioned
3 earlier in the pain assessment, according to N.P. Batac, would make Plaintiff’s pain
4 progress to the point of “risking medical crisis,” and Plaintiff would frequently be absent
5 from work three times or more a month. (See id. at 1260.) N.P. Batac noted that in her
6 best estimate, the symptoms and limitations included in the pain assessment and progress
7 reports were present since 2013. (See id. at 1260.)
8 D. Dr. Haas
9 Richard Haas, M.D., a genetic and mitochondrial disease expert who is the director
10 of the Mitochondrial Disease Laboratory at the UCSD Medical Center, evaluated Plaintiff
11 at the culmination of a series of diagnostic tests related to symptoms of fatigue, muscle
12 cramps, pain, cognitive decline, exercise intolerance, and an inability to stand without
13 support beginning in August of 2016 at UCSD. (See id. at 1794, 1813, 1804.) Dr.
14 Haas’s treatment notes, which extend into 2017, explain that Plaintiff had been
15 experiencing “increasing fatigue, cognitive decline, and exercise intolerance” and
16 presented with “chronic fatigue and pain refractory to medical treatment.” (See id. at
17 1804.) After noting various neurological symptoms and a mitochondrial test result that
18 was consistent with MELAS, (see, e.g., id. at 1804), Dr. Haas ordered an “mtDNA
19 sequencing and deletion analysis,” as well as a muscle biopsy test in order to determine
20 the correct course of treatment for Plaintiff. (See id. at 1805.) Dr. Haas’s general
21 examination findings note that Plaintiff “has normal muscle tone and power is generally
22 reduced with proximal power 4/5 arms and 4-/5 hip flexion and normal appendicular and
23 truncal coordination with a shuffling gait and definite component of overlay.” (Id. at
24 1806.)
25 In a subsequent undated letter, Dr. Haas noted that Plaintiff was diagnosed with
26 MELAS through genetic testing that confirmed the associated genetic mutation after
27 “numerous clinicians were unable to diagnose her with any condition that would explain
28 her varied symptoms.” (Id. at 2269.) The letter notes that Plaintiff’s records and patient
1 history indicate that “she has experienced symptoms of her disease for a number of
2 years” prior to Dr. Haas’s interaction with her, and that “[Plaintiff] stopped working
3 regularly in 2012 due to her medical problems.” (Id.)
4 E. Non-Examining Physicians Drs. Stuart Laiken and A. Nasrabadi
5 In addition to citing treating physicians’ opinions, the ALJ cited to non-examining
6 agency medical consultants’ review of Plaintiff’s medical records in finding that Plaintiff
7 was not disabled between September 14, 2012 and March 31, 2013. (See id. at 22-23.)
8 Stuart Laiken, M.D., and A. Nasrabadi, M.D., reviewed Plaintiff’s medical records, as
9 well as “additional records supplied” upon Plaintiff’s application for reconsideration of
10 the agency’s denial of her benefits. (See id. at 157-162) (affirming reviewing physician’s
11 opinion that the medical evidence did not come from the relevant time period).) In
12 concluding that the agency’s initial determination was correct, Dr. Laiken mainly
13 discussed Dr. Shima’s treatment notes and his letter noting that Plaintiff had been
14 disabled since 2012:
15 Claimant’s assessment of her own condition does not constitute
an acceptable medical source. Dr. Shima’s records are mostly
16
illegible but clearly contain no evidence that claimant had
17 cardiac disease of any type and no cardiac symptomatology.
Furthermore, claimant went to work as an animal behaviorist
18
after the prior denial, with L/C up to 40 lbs. This would be highly
19 unusual for an individual with . . . cardiac disease. Dr. Shima
appears to be an alternative medicine practitioner. Her submitted
20
patient registration form for this claimant in which the initially
21 written date is crossed out and 2012 inserted. Hence, it is not
clear that this was actually written in 2012. Search of Medical
22
Board Records reveals that his license was suspended and he is
23 now on probation with practice restrictions. His letter is given
little weight due to the observations cited above. DOD records
24
mention CABG in 2005 and stenting. However, there are no
25 records to support any of this and no evidence of function
limiting cardiac symptomatology. In lieu of any real function
26
information (only illegible notes from an alternative medicine
27 practitioner who notes no clearly acceptable MDIs for the time
period in question) this case remains IE prior to DLI.
28
1
(Id. at 159.) These findings were then affirmed by Dr. Nasrabadi. (Id.)
2
The agency medical consultants concluded that “there is insufficient
3
evidence to evaluate [Plaintiff’s] claim.” (See id. at 144; 140-45.)
4
IV. DISPUTED ISSUES
5
As reflected in the parties’ cross-motions for summary judgment, Plaintiff
6
contends that the ALJ committed three errors:
7
1. The ALJ improperly evaluated the medical opinion evidence of Doctors
8
Richard Haas, Gary Shima, and Andrew Biggs, as well as Nurse Practitioner Nadine
9
Batac. (Pl.’s Mot. Summ. J., ECF No. 15 (“Pl.’s MSJ”) at 19; Def.’s Cross-Mot. Summ.
10
J., ECF No. 19 (“Def.’s MSJ”) at 2.)
11
2. The ALJ improperly evaluated Plaintiff’s subjective symptom testimony.
12
(Pl.’s MSJ at 25; Def.’s MSJ at 2.)
13
3. The ALJ improperly determined Plaintiff’s retained Residual Functional
14
Capacity (“RFC”). (Pl.’s MSJ at 24; Def.’s MSJ at 2.)
15
V. STANDARD OF REVIEW
16
Section 405(g) of the Social Security Act allows unsuccessful applicants to seek
17
judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of
18
judicial review is limited, and the denial of benefits will not be disturbed if it is supported
19
by substantial evidence in the record and contains no legal error. See, e.g., Molina v.
20
Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation on other grounds.
21
The Court must affirm the Commissioner’s decision if it is “supported by
22
substantial evidence and based on the application of correct legal standards.” Sandgathe
23
v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (per curiam). “Substantial evidence” is
24
“such relevant evidence as a reasonable mind might accept as adequate to support a
25
conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Substantial
26
evidence means “more than a mere scintilla but less than a preponderance.” Id. In
27
determining whether the Commissioner’s decision is supported by substantial evidence,
28
1 the Court must “weigh both the evidence that supports and the evidence that detracts
2 from the ALJ’s factual conclusions.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519,
3 523 (9th Cir. 2014) (internal quotation omitted). When evidence is “susceptible to more
4 than one rational interpretation, one of which supports the ALJ’s decision,” the Court
5 must uphold the ALJ’s conclusion. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
6 2002). The Court may consider “only the reasons provided by the ALJ in the disability
7 determination and may not affirm the ALJ on a ground upon which [he or she] did not
8 rely.” Revels v. Berryhill, 874. F.3d 648, 654 (9th Cir. 2017) (internal quotation
9 omitted).
10 Error in a social security determination is subject to a harmless-error analysis.
11 Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). “[A]n error is harmless so long
12 as there remains substantial evidence supporting the ALJ’s decision and the error does
13 not negate the ALJ’s ultimate conclusion.” Molina, 674 F.3d at 1115 (internal quotation
14 omitted). The Court must “look at the record as a whole to determine whether the error
15 alters the outcome of the case. Id. An error that is “inconsequential to the ultimate
16 nondisability determination” is harmless. Id. (internal quotation omitted).
17 VI. DISCUSSION
18 This case turns on the difficult question of when Plaintiff’s mitochondrial
19 encephalomyopathy, lactic acidosis, and stroke-like symptoms (“MELAS”) became
20 disabling. See Swanson v. Sec’y of Health & Hum. Servs., 763 F.2d 1061, 1065 (9th Cir.
21 1985) (“the critical date is the date of the onset of disability, not the date of the
22 diagnosis”) (emphasis omitted). The ALJ found that Plaintiff was not disabled between
23 her alleged onset date of September 14, 2012, and her DLI of March 31, 2013. (See AR
24 at 27.) Plaintiff contends that the ALJ reached this decision erroneously based on each of
25 the three challenges set forth in Section IV, supra. The Court concludes that the ALJ
26 committed legal error in evaluating the medical opinion evidence available in the
27 Administrative Record and RECOMMENDS that the case be remanded to the Social
28
1 Security Administration for further development of the record.
2 A. The ALJ’s Evaluation of Medical Opinion Evidence
3 Plaintiff contends that the ALJ improperly rejected the medical opinions of
4 Doctors Gary Shima, Andrew Biggs, and Richard Haas, as well as Nurse Practitioner
5 Nadine Batac under the “supportability” and “consistency” standards under 20 C.F.R.
6 § 404.1520c(c). (See Pl.’s MSJ at 23 (“[t]he ALJ’s decision does not comply with the
7 requirement that he must ‘articulate’ how he considered, at the very least, the consistency
8 and supportability of the opinions from the treating sources in order to determine how
9 persuasive those opinions are”).)
10 1. Applicable law
11 In evaluating the intensity and persistence of a claimant's symptoms, an ALJ must
12 consider all the available evidence from the claimant's “medical sources and nonmedical
13 sources about how [the claimant's] symptoms affect [her].” 20 C.F.R. § 404.1529(c)(1).
14 Medical opinions are more persuasive if they are supported by explanations and objective
15 medical evidence, 20 C.F.R. § 404.1520c(c)(1), and if they are consistent with the
16 evidence from other medical and nonmedical sources, id. § 404.1520c(c)(2).
17 Furthermore, the medical opinion of a specialist “about medical issues related to his or
18 her area of specialty” is more persuasive than that of a non-specialist. Id. §
19 404.1520c(c)(4). The purpose, length, and extent of a medical source's treatment
20 relationship with the claimant, the kinds and extent of examinations and testing
21 performed, and the frequency of the claimant's visits, may also demonstrate a medical
22 source's knowledge and understanding of the claimant's impairments. Id. §
23 404.1520c(c)(3)(i)-(v). In addition, a medical source's familiarity with other evidence in
24 a claim may make the medical source's opinion more persuasive. Id. § 404.1520c(c)(5).
25 Revised regulations apply to an ALJ’s analysis of medical opinion evidence for
26

27
4 As explained more fully below, resolution of the first issue obviates the need to address the issues of
28
1 claims filed on or after March 17, 2017. See Revisions to Rules Regarding the
2 Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01, at 5867-68
3 (Jan. 18, 2017). Under these rules, the ALJ is no longer required to “defer or give any
4 specific evidentiary weight, including controlling weight, to any medical opinion(s).” 20
5 C.F.R. § 404.1520c(a). The ALJ must instead consider all the medical opinions in the
6 record and evaluate each medical opinion’s persuasiveness using factors including
7 supportability, consistency, relationship with the claimant, and specialization. Id. The
8 two most important factors in determining a medical opinion’s persuasiveness are the
9 opinion’s “supportability” and “consistency.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a).
10 The ALJ must articulate “how [he or she] considered the supportability and consistency
11 of factors for a medical source's medical opinions . . . in [his or her] decision.” 20 C.F.R.
12 §§ 404.1520c(b)(2), 416.1520c(b)(2).
13 Related to supportability, the “more relevant the objective medical evidence and
14 supporting explanations presented by a medical source are to support his or her medical
15 opinion(s), the more persuasive the medical opinions . . . will be.” 20 C.F.R.
16 §§ 404.1520c(c), 416.920c(c)(2). For consistency, the “more consistent a medical
17 opinion(s) is with the evidence from other medical sources in the claim, the more
18 persuasive the medical opinion(s) . . . will be.” 20 C.F.R. §§ 404.1520c(c)(2),
19 416.320c(c)(2). The ALJ is not required to explain how they considered other factors,
20 unless they find that two or more medical opinions about the same issue are equally well-
21 supported and consistent with the record, but not identical. See 20 C.F.R.
22 §§ 404.1520c(b)(3), 416.1520c(b)(3). Additionally, in reviewing the ALJ’s decision, the
23 Court must consider whether the ALJ’s analysis has the support of substantial evidence.
24 See 42 U.S.C. § 405(j); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989).
25 The revised rules do not, however, replace all previous caselaw within the Ninth
26 Circuit. For example, ALJs still may not cherry-pick evidence in discounting a medical
27 opinion. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014); see also Holohan
28 v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (reversing an ALJ’s selective reliance
1 “on some entries in [the claimants records while ignoring] the many others that indicated
2 continued, serious impairment”). Nor, for instance, may the ALJ dismiss medical
3 opinions without providing a detailed explanation for doing so:
4 To say that medical opinions are not supported by sufficient
objective findings or are contrary to the preponderant
5
conclusions mandated by the objective findings does not achieve
6 the level of specificity our prior cases have required, even when
the objective factors are listed seriatim. The ALJ must do more
7
than offer his own conclusions. [They] must set forth [their] own
8 interpretation and explain why they, rather than the doctors', are
correct.
9

10 Regenmitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999)
11 (citation omitted).
12 Essentially, although the revised regulations eliminate the previous hierarchy of
13 medical opinion testimony that gave special status to treating physicians, the ALJ still
14 must provide sufficient reasoning for federal courts to conduct a meaningful review. See
15 Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (explaining that “a reviewing
16 court should not be forced to speculate as to the grounds for an adjudicator’s rejection” of
17 certain evidence); see also Treichler v. Comm’r of Soc. Sec. Admin, 775 F.3d 1090, 1103
18 (9th Cir. 2014) (“Although the ALJ’s analysis need not be extensive, the ALJ must
19 provide some reasoning in order for us to meaningfully determine whether the ALJ’s
20 conclusions were supported by substantial evidence.”).
21 2. Dr. Haas
22 The ALJ found Dr. Haas’s opinion regarding Plaintiff’s disability before her DLI,
23 or “any periods substantially before [Dr. Haas] started treating the claimant in 2016,”
24 non-persuasive, (id. at 24), providing three reasons for this finding. First, the ALJ
25 reasoned that Dr. Haas, by his own admission, did not begin treating Plaintiff until 2016,
26 well after Plaintiff’s DLI, rendering any opinions about Plaintiff’s ability to work before
27 her DLI unreliable. (Id.) Second, The ALJ noted that Dr. Haas’s statement about
28 Plaintiff’s inability to work regularly since 2012 was “somewhat inconsistent” with
1 Plaintiff’s own work history report in her benefits application, which lists her work as an
2 animal trainer continuing until 2015, as well as “appear[ing] to be based on what Dr.
3 Haas was told by the claimant, rather than his own knowledge. (Id. (citing AR at 386).)
4 Finally, the ALJ noted that Dr. Haas’s opinion was inconsistent with other physical
5 examination findings in the record indicating normal gait, stance, lower extremity
6 strength, and ejection fraction in 2016 and 2017. (Id.)
7 Plaintiff contends that the ALJ committed legal error by ignoring Dr. Haas’s
8 opinions, which the ALJ should have considered under the regulations that apply to the
9 Social Security Administration. (See Pl.’s MSJ at 21 (citing 20 C.F.R.
10 § 404.1520c(c)(1)).) Specifically, Plaintiff points to Dr. Haas’s finding that Plaintiff
11 experienced “severe chronic fatigue, muscle weakness, an inability to sustain activities
12 for any substantial duration, pronounced ataxia, and ‘longstanding’ chronic muscle spams
13 [sic], which causes difficulty with walking and standing.” (Id. (citing (AR at 2269)).)
14 Apart from the general contention that the ALJ’s findings are supported by
15 substantial evidence, the Commissioner argues in response that Dr. Haas did not provide
16 any medical opinions the ALJ was required to evaluate because he did not “assert any
17 functional limitations that Plaintiff had.” (Def.’s MSJ at 7 n.5 (citing 20 C.F.R.
18 § 404.1513(a)(2)).)
19 As an initial matter, the Court disagrees with the Commissioner’s contention that
20 Dr. Haas did not present a medical opinion about Plaintiff’s disability that the ALJ was
21 required to address. Although Dr. Haas did not express his opinion in the language used
22 by the agency—referencing specific functional limitations or the amount of time that
23 Plaintiff would be absent from work—he clearly opined that Plaintiff’s symptoms were
24 sufficiently serious to prevent her from working regularly. (See AR at 2269); see also
25 Bryan S. v. Kijakazi, Case No. 6:21-cv-00972-MK, 2022 WL 3211621, at *3 (D. Or.
26 Aug. 9, 2022) (noting that it is the ALJ’s responsibility to translate a medical opinion into
27 a functional limitation or provide legally sufficient reasons for rejecting it).
28 Apart from the Commissioner’s arguments about the form of Dr. Haas’s opinion,
1 the ALJ’s substantive reasons for disregarding Dr. Haas’s opinion were not supported by
2 substantial evidence such that meaningful review can be conducted of his findings. First,
3 even assuming that Dr. Haas based his opinion about the onset of Plaintiff’s symptoms on
4 Plaintiff’s reports about her medical history and symptoms, “a patient’s report of
5 complaints, or history, is an essential diagnostic tool.” Abramson v. Comm’r of Soc. Sec.
6 Admin., No. CV-19-00362-TUC-RM (DTF), 2020 WL 7022260, at *7 (D. Ariz. Nov. 30,
7 2020) (quoting Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003)) (internal
8 quotations omitted). A physician’s evaluation of a patient’s subjective statement of their
9 symptoms “hardly undermines [the physician’s] opinion as to the [the patient’s]
10 functional limitations.” Id. This is especially true for a rare genetic disorder such as
11 MELAS, which evades detection and was only definitively diagnosed, by the ALJ’s own
12 admission, after Plaintiff had been evaluated by numerous practitioners and reported a
13 persistence of her symptoms through 2016. (See AR at 23.)
14 Second, the ALJ failed to explain why Plaintiff’s work history report was given
15 greater weight than Dr. Haas’s opinion about when Plaintiff’s symptoms caused her to
16 become disabled. Although the ALJ noted that Dr. Haas’s observations about Plaintiff’s
17 work history were “somewhat inconsistent” with her own reports in her application for
18 benefits, citing a self-reported chart that lists Plaintiff’s work history as an animal trainer
19 continuing until March of 2015, (see id. at 23, 386), simply concluding that two sources
20 of information are inconsistent, without further analysis, is insufficient for the Court to
21 conduct a meaningful review of the ALJ’s reasoning for discounting Dr. Haas’s opinions.
22 See, e.g., Langdon v. Astrue, No. 12–CV–2624 AJB (NLS), 2013 WL 5592483, at *18
23 (S.D. Cal. Oct. 9, 2013) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003))
24 (“if the ALJ’s explanation is inadequate, the reviewing court may not search the record
25 for reasons that support his decision.”). Moreover, given Dr. Haas’s specialization in
26 genetic research and identifying conditions such as MELAS, Dr. Haas’s opinion was
27 entitled to increased weight under the factors listed in 20 C.F.R. § 404.1520c(c); see also
28 Revels, 874 F.3d at 654 (“A doctor's specialty is especially relevant with respect to
1 diseases that are ‘poorly understood’ within the rest of the medical community.”). While
2 Dr. Haas’s treating relationship with Plaintiff is noted, the ALJ did not assign greater
3 weight to Dr. Haas’s opinion as a result of this relationship, which included multiple
4 consultation sessions, close review of Plaintiff’s medical records, and specialized tests
5 that identified the genetic mutation responsible for Plaintiff’s MELAS. (See AR at
6 1804.)
7 Similarly, the ALJ did not explain why or how other evidence in the record of
8 Plaintiff’s “normal physical examination findings of gait, stance, and lower extremity
9 strength, as well as a normal ejection fraction in 2016-2017,” undermined or was
10 inconsistent with Dr. Haas’s opinion. (See AR at 23.) The impairments and complaints
11 of pain and fatigue are well-documented in Plaintiff’s voluminous medical records, and
12 Dr. Haas’s treatment records not only note other healthcare providers’ opinions about
13 these symptoms, but also include his own analysis to account for Plaintiff’s symptoms in
14 light of her confirmed MELAS diagnosis. (See, e.g., id. at 1804 (noting chronic
15 fatigue).)
16 The quoted sentence above demonstrates that the ALJ attempted to reject
17 Plaintiff’s reports of her symptoms and Dr. Haas’s consistent opinion about the onset of
18 these symptoms on the grounds that other objective medical evidence did not support the
19 alleged intensity and debilitative effects of these symptoms before the DLI. While it is
20 true that “objective medical evidence from an acceptable medical source” must show that
21 a claimant has a medical impairment or impairments that “could reasonably be expected
22 to produce” the claimant’s alleged symptoms, 20 C.F.R. § 404.1529(a), the ALJ found
23 that Plaintiff’s “medically determinable impairments could reasonably be expected to
24 cause the alleged symptoms.” (AR at 22.) The ALJ’s analysis, therefore, did not center
25 on the existence of Plaintiff’s impairments, but rather with the intensity and persistence
26 of Plaintiff’s fatigue and other symptoms between the alleged onset date and the DLI.
27 Once a claimant has shown that she has a medically determinable impairment or
28 impairments that could reasonably be expected to produce her pain or other symptoms,
1 however, her statements about the intensity and persistence of her fatigue cannot be
2 rejected “solely because the available objective medical evidence does not substantiate”
3 them. 20 C.F.R. § 404.1529(c)(2). Accordingly, in addition to failing to articulate why
4 the ALJ gave Dr. Haas’s opinion less weight than other objective evidence within the
5 administrative record, the ALJ erred by failing to provide substantiating objective
6 medical evidence in rejecting Plaintiff’s testimony concerning her fatigue and other
7 symptoms.
8 Finally, the ALJ erred in giving reduced weight to Dr. Haas’s opinion on the
9 grounds that he had not examined Plaintiff until 2016. Medical reports—especially in
10 relation to a rare genetic disorder such as MELAS—will inevitably be “rendered
11 retrospectively and should not be disregarded solely on that basis.” Smith v. Bowen, 849
12 F.2d 1222, 1225 (9th Cir. 1998). The ALJ did not provide any other legally sufficient
13 reasons for rejecting Dr. Haas’s opinion, and the retrospective nature of his opinion alone
14 cannot support the ALJ’s decision.
15 Considering the discussion of Dr. Haas’s opinion and treatment notes as a whole,
16 the Court concludes that the ALJ failed to articulate sufficient bases for finding Dr.
17 Haas’s opinion unpersuasive. Although the ALJ “can satisfy the ‘substantial evidence’
18 requirement by ‘setting out a detailed and thorough summary of the facts and conflicting
19 clinical evidence, stating his interpretation thereof, and making findings,’” Garrison v.
20 Colvin, 759 F.3d 995, 1013 (9th Cir. 2014) (internal citations omitted), the ALJ is
21 required to do more than merely state conclusions. Simply stating that a medical opinion
22 is generally consistent (or inconsistent) with medical records “without specifically
23 discussing the consistency of such findings with the rest of the record, does not make it
24 so.” Jones v. Comm’r of Soc. Sec. Admin, Case No.: 1:19-cv-00109-REB, 2020 WL
25 7029143, at *7 (D. Idaho Nov. 30, 2020).
26 3. Dr. Biggs and N.P. Batac
27 The ALJ found both Dr. Biggs and N.P. Batac’s medical opinions non-persuasive,
28 concluding that: (1) neither source had treated Plaintiff prior to her DLI, and that their
1 opinions therefore “have no basis in personal knowledge or observation to affirm that the
2 degree of limitations . . . existed prior to [Plaintiff’s] date insured,” (see id. at 24); and (2)
3 that even if intended to be rendered retrospectively, these opinions were inconsistent with
4 objective findings in the record indicating that “as recently as 2016 and 2017, the
5 claimant had normal physical examination findings of gait, stance, and lower extremity
6 strength, as well as normal ejection fraction.”5 (See id. at 386.)
7 Plaintiff contends that the ALJ committed legal error by ignoring these providers’
8 assessments, which he should have considered relevant under the regulations that apply
9 to the Social Security Administration. (See Pl.’s MSJ at 20.) Pointing to Dr. Biggs and
10 N.P. Batac’s opinions based on Plaintiff’s MELAS diagnosis and symptoms of pain and
11 fatigue throughout their progress notes, Plaintiff argues that these symptoms were
12 consistent with her diagnosis, and that the ALJ should not have assigned them a lower
13 weight than other factors in the record. (See id.)
14 The Commissioner argues in response that (1) the ALJ “reasonably noted that both
15 Dr. Biggs and Ms. Batac did not treat Plaintiff prior to her date last insured,” (2) these
16 opinions assessed extreme limitations that Dr. Biggs and N.P. Batac failed to explain how
17 they existed prior to Plaintiff’s DLI, and (3) even if the opinions were intended to be
18 interpreted retrospectively, they were inconsistent with other objective findings of normal
19 gait, stance, strength, and ejection fraction. (See Def.’s MSJ at 7-8.)
20 The ALJ’s reasoning in rejecting the opinions of Dr. Biggs and N.P. Batac was not
21 supported by substantial evidence. As noted above, the fact that an opinion is rendered
22 retrospectively cannot, in and of itself,6 be used as a justification for rejecting a medical
23

24
25 5 These factors were also cited in the ALJ’s evaluation of Dr. Haas’s opinion. See Section VI.A.2,
supra.
26
6 The Commissioner argues that the “ALJ reasonably found [Dr. Biggs and N.P. Batac’s] opinions
27 unsupported because they failed to explain how the limitations they assessed existed before Plaintiff’s
date last insured.” (Def.’s MSJ at 8.) There is no discussion in the ALJ’s written decision, however,
28
1 opinion—especially in the case of a disease such as MELAS that by its very nature
2 evades detection by normal metrics. See, e.g., Kara M. v. Comm’r of Soc. Sec., Case No.
3 3:21-05673-TLF, 2022 WL 2072203, at *4 (W.D. Wash. June 9, 2022) (quoting Smith,
4 849 F.2d at 1225) (“medical reports are inevitably rendered retrospectively and should
5 not be disregarded solely on that basis.”) (internal quotations omitted).
6 Furthermore, the alleged inconsistency between N.P. Batac and Dr. Biggs’s
7 opinions and other examination results in the record—at the very least—created an
8 ambiguity that the ALJ was required to address in further detail. Merely noting that there
9 are inconsistencies between treating providers’ opinions and other findings in the record
10 is not sufficient to reject those opinions. See, e.g., Julene E.S. v. Comm’r of Soc. Sec.,
11 Case No. 22-CV-5158 TLF, 2022 WL 17261676, at *6 (W.D. Wash. Nov. 29, 2022)
12 (reversing when ALJ erred by cherry-picking routine observations that did not undermine
13 the consistency of treating physician’s opinion when compared with a holistic review of
14 the record); see also Diedrich v. Berryhill, 874 F.3d 634, 642 (9th Cir. 2017) (discussing
15 the ALJ’s cherry-picking of the absence of certain symptoms from medical evidence as
16 opposed to undertaking a “broader development” of the evidence in its entirety); Brown
17 v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (noting that an ALJ has a duty “to fully and
18 fairly develop the record and to assure the claimant’s interest are considered.”). Here, the
19 ALJ did not explain how some normal physical examination findings of gait, stance, and
20 ejection fraction in the record undermined the well-documented reports of neurological
21 symptoms in Dr. Biggs and N.P. Batac’s progress notes and opinions. (Compare AR at
22 24 (“[Plaintiff] had normal physical examination findings of gait, stance, and lower
23 extremity strength, as well as a normal ejection fraction.”), with AR at 1248-52; 1254-60
24
25
ALJ merely noted an inconsistency between the providers’ opinions and other objective evidence in the
26 record in concluding that these opinions were “non-persuasive.” (Id.) It is not the Court’s job to address
post hoc rationalizations of the ALJ’s reasoning. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
27 1219, 1225 (9th Cir. 2009) (“[l]ong-standing principles of administrative law require us to review the
ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not post hoc
28
1 (assessing symptoms of muscle pain, fatigue, and other physical limitations). In sum, the
2 ALJ’s determination that these providers’ opinions were inconsistent with other evidence
3 in the record was not supportable by substantial evidence.
4 4. Dr. Shima
5 In finding Dr. Shima’s opinion non-persuasive, the ALJ noted that two non-
6 examining state medical consultants, Stuart Laiken, M.D., and A. Nasrabadi, M.D., who
7 had reviewed Plaintiff’s medical records in 2019, reasoned that there was insufficient
8 evidence to conclude that Plaintiff had been disabled before the DLI. (See id. at 23
9 (citing id. at 159-60).) Referencing the non-examining physicians’ opinions, the ALJ
10 stated:
11 On patient registration forms for holistic medical treatment with
Dr. Gary Shima, the date/year of execution [sic] of these forms
12
was twice crossed out and apparently changed to 2012. This
13 circumstance, along with Dr. Shima’s license suspension and
subsequent probation and practice restriction, were flagged by
14
the State agency medical consultant who reviewed this claim at
15 the initial and reconsideration levels of administrative review . .
. [h]owever, assuming that the claimant’s related treatment notes
16
. . . do reflect holistic medicine treatment beginning in 2012,
17 there is no clinical diagnosis indicating the claimant’s MELAS
impairment began at this time, nor (as discussed herein and
18
further below) is there sufficient proof in all the available
19 treatment records that the severity of the claimant’s impairments
caused greater restrictions than as included in the residual
20
functional capacity set forth above, prior to her date last insured.
21 (Id. at 22.)
22 After citing the non-examining physicians’ opinions, the ALJ reasoned that
23 although Dr. Shima reported that he prescribed alternative medical treatments for
24 “various medical symptoms” between 2012 and 2014, Dr. Shima “did not support any
25 opined limitations arising from the claimant’s impairments before the claimant’s date last
26 insured.” (Id. at 23.) In support of this conclusion, the ALJ notes that Dr. Shima
27 acknowledged that Plaintiff was not diagnosed with MELAS until 2016, after numerous
28 specialist visits. (Id.)
1 Plaintiff contends that the ALJ improperly credited the findings of the non-
2 examining physicians. (Pl.’s MSJ at 22.) Pointing to Dr. Shima’s treatment notes and
3 records of Plaintiff’s symptoms that predate her DLI, (see id. at 21 (citing AR at 472-
4 74)), Plaintiff argues that the non-examining state consultants’ conclusions that the
5 evidence in Plaintiff’s records are insufficient to demonstrate that she was disabled before
6 the DLI are fundamentally different than a definitive finding that Plaintiff was not
7 disabled before the DLI. (See id. at 22.) Plaintiff argues that her MELAS progressed
8 slowly until her severe symptoms began to be documented by Dr. Shima in 2012. (See
9 id. at 20.)
10 In response, the Commissioner notes that Dr. Shima’s check-box questionnaire
11 assesses extreme limitations that go as far back as 2012, while his treatment notes
12 describe Plaintiff’s condition as “progressing rapidly” in 2015. (See Def.’s MSJ at 6
13 (citing AR at 2164-65).) In addition to failing to support Dr. Shima’s opinion that
14 Plaintiff was disabled in 2012, the Commissioner contends that these conflicting notes
15 demonstrate Dr. Shima’s lack of understanding of Plaintiff’s condition, despite years of
16 treating Plaintiff’s alleged symptoms.7
17 Replying to the Commissioner’s contentions about Dr. Shima’s inconsistent
18 treatment notes between 2012 and 2015, Plaintiff argues that the Commissioner and the
19 ALJ failed to consider how two possibilities could be true at once. (See Pl.’s Reply in
20 Supp. of Pl.’s Mot. for Summ. J., ECF No 20 (“Pl.’s Reply”) at 3.) That is, Plaintiff
21 could have been disabled in 2012 such that she was unable to work, while still
22 progressing to the point of being “more wheelchair bound” by 2015. (See id.)
23 The Court agrees with Plaintiff’s arguments here. While the ALJ’s findings
24

25
26 7 The Court notes that in finding Dr. Shima’s opinions non-persuasive, the ALJ also cited to previously
addressed medical findings of Plaintiff’s normal gait, stance, extremity strength, and ejection fraction.
27 (See AR at 23.) For the reasons previously stated in Sections VI.A.2 & 3, supra, the ALJ’s conclusory
citations to these findings without further analysis in the context of the entire record are insufficient to
28
1 regarding Dr. Shima’s opinions are discussed in greater detail than those of other treating
2 physicians in the administrative record, the ALJ’s assessment of the ambiguities and
3 inaccuracies in Plaintiff’s course of treatment with Dr. Shima—even if true—triggered a
4 duty for the ALJ to further develop the record to resolve these issues. See Julene E.S.,
5 2022 WL 17261676, at *8 (citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.
6 2001)) (“The existence of ambiguous evidence triggers the ALJ’s duty to ‘conduct an
7 appropriate inquiry.’”) (internal quotations omitted). Although the ALJ was entitled to
8 weigh the evidence in the record regarding Dr. Shima’s treatment of Plaintiff, he failed to
9 compare the asserted lack of support that the onset date of Plaintiff’s MELAS impairment
10 occurred before Plaintiff’s DLI with other evidence throughout Dr. Shima’s materials and
11 the record as a whole noting Plaintiff’s symptoms of fatigue and pain that were
12 unexplained by her healthcare providers until her diagnosis. (See, e.g.¸AR at 472, 474-
13 75, 491, 2255.) Indeed, the ALJ supported his conclusion that Dr. Shima’s opinions
14 concerning Plaintiff’s disability onset date occurring in 2012 lacked support by stating
15 that “Dr. Shima acknowledged that the claimant was not diagnosed with MELAS until
16 about 2016.”8 (See AR at 23.) The ALJ’s rejection of Dr. Shima’s opinion on this basis
17 was not a meaningful attempt to address perceived ambiguities in the record, especially
18 given that the ALJ acknowledged Dr. Shima treated Plaintiff for “various medical
19 symptoms” between 2012 and 2014. (See id.); see also Svaldi v. Berryhill, 720 F. App’x
20
21
8 The failure of treating physicians to diagnose Plaintiff with MELAS until after the alleged onset date
22 of her impairments is repeatedly used by the ALJ as justification to afford the treating physicians’
retrospective opinions in the record little to no weight. (See, e.g., AR at 22-24.) The ALJ’s rejection of
23 physicians’ opinions based on failures to explicitly support their findings of Plaintiff’s disability onset
date seems to be an attempt to implicitly impose a requirement that there be contemporaneous medical
24
evidence of Plaintiff’s impairment. (See, e.g., id. at 66 (discussing lack of contemporaneous medical
25 evidence).) These statements demonstrate that the ALJ failed to recognize the very nature of an
inferential diagnosis, which presupposes that there may be little contemporaneous medical evidence and
26 directs the ALJ to consider longitudinal medical evidence of the claimant’s disability in the record as a
whole. See Determining the Established Onset Date (EOD) In Disability Claims, SSR 18-01p (2018),
27 2018 WL 4945639, at *6; see also Dory L. v. Saul, No. 19 CV 50106, 2020 WL 5763612, at *5 (N.D.
Ill. Sept. 28, 2020) (quoting Walker v. Berryhill, 900 F.3d 479, 483 (7th Cir. 2018) (“That a precise
28
1 342, 344 (9th Cir. 2017) (where medical opinions “refer back” to the same chronic
2 condition and symptoms discussed in physician’s opinion “from several years prior,” the
3 “fact that those opinions were issued significantly after [the plaintiff’s] DLI does not
4 undercut the weight those opinions are due.”); D.K. v. Kijakazi, No. 20-CV-07821-LB,
5 2021 WL 3856696, at *5 (N.D. Cal. Aug. 30, 2021) (citing Smith, 849 F.2d at 1225–26)
6 (“Later-acquired medical evidence can be used to show the existence of a medically
7 determinable impairment as of an earlier date, so long as the earlier onset can be
8 reasonably inferred from the objective medical evidence.”).
9 Moreover, as Plaintiff correctly notes, the opinions of the non-examining
10 physicians who concluded that insufficient evidence existed to determine whether
11 Plaintiff was disabled for the purposes of receiving benefits are decidedly different than
12 an opinion by a healthcare provider that Plaintiff was not disabled prior to her DLI. (See
13 Pl.’s MSJ at 22 (citing Manteau v. Colvin, No. ED CV 12–1153–PLA, 2013 WL
14 1390018, at *7 (noting that a physician’s opinion of insufficient evidence to demonstrate
15 a determinable impairment before the DLI was not a proper basis to conclude that the
16 plaintiff had no medically determinable impairment)).) While perhaps implicitly noted
17 by the ALJ, these opinions created an inconsistency with Dr. Shima’s documented
18 opinion that the ALJ was required to address and explain why they were afforded greater
19 weight than Dr. Shima’s treatment notes and opinions.9
20 The ALJ’s opinion, therefore, falls short of including sufficient analysis such that
21 the Court can conduct a meaningful review of its conclusions. By the ALJ’s admission,
22 Dr. Shima’s progress notes account Plaintiff’s treatment for symptoms that could have
23 been related to her MELAS impairment starting in 2012, and include a retrospective
24

25
26 9 The ALJ apparently recognized this discrepancy in his opinion. (See AR at 23 (“[t]he state agency
medical consultants determined that the claimant’s condition was not disabling on any date through
27 03/31/2013 . . . [t]he undersigned finds that the prior administrative findings are persuasive to the
important extent that the medical evidence available at the time of the state agency consultant’s review
28
1 opinion that these symptoms were related to her diagnosis that was confirmed at a later
2 date. The ALJ was required to address these findings and explain why they were rejected
3 in favor of his own conclusions about the evidence in the record. See, e.g., Melinda C. v.
4 Saul, No. CV 19-5827-E, 2020 WL 2490086, at *2 (C.D. Cal. May 14, 2020) (explaining
5 that an ALJ must set forth some reasoning for rejecting a treating physician’s opinion);
6 see also Lusardi v. Astrue, 350 F. App’x 169, 183 (9th Cir. 2009) (“[I]f the ALJ rejects
7 significant probative evidence, he must explain why.”). The ALJ’s evaluation of Dr.
8 Shima’s medical opinion evidence was therefore unsupported by substantial evidence.
9 5. Conclusion
10 The ALJ failed to offer specific and legitimate reasons supported by substantial
11 evidence for rejecting the opinions of Doctors Haas, Biggs, and Shima, as well as N.P.
12 Batac. This error was not inconsequential to the ALJ’s ultimate determination that
13 Plaintiff was not disabled between her alleged September 14, 2012, onset date and her
14 March 31, 2013, DLI. As will be explained in further detail below, the Court
15 RECOMMENDS that this case be remanded on this basis.
16 B. Additional Assignments of Error
17 In addition to the contention that the ALJ improperly addressed medical opinion
18 evidence discussed above, Plaintiff contends that the ALJ erred by improperly
19 discounting Plaintiff’s subjective symptom testimony and failed to support the RFC
20 determination with substantial evidence. (See Pl.’s MSJ at 24, 25.) Although the ALJ’s
21 failure to properly evaluate medical opinion evidence is sufficient for the Court to
22 conclude that remand is appropriate, Plaintiff’s other assignments of error are discussed
23 briefly in turn. See, e.g., Benjamin S. v. Kijakazi, No. 1:21-cv-00414-CWD, 2022 WL
24 16948759, at *7 (D. Idaho Nov. 15, 2022) (declining to reach the plaintiff’s subjective
25 symptom testimony when the ALJ’s analysis was affected by their failure to properly
26 consider medical opinion evidence); Gregory T. v. Saul, No. 1:19-cv-03116-MKD, 2020
27 WL 4730966, at *9 (E.D. Wash. May 12, 2020) (declining to reach the plaintiff’s
28 subjective symptom testimony when medical opinion evidence needed to be reevaluated
1 on remand); Linkswiler v. Colvin, CASE NO. 3:16-CV-05158-DWC, 2016 WL 5817055,
2 at *8 (W.D. Wash. Oct. 5, 2016) (“an evaluation of a claimant's credibility relies, in part,
3 on an accurate assessment of the medical evidence”) (citing 20 C.F.R. §§ 404.1529(c),
4 416.929(c))
5 1. Plaintiff’s subjective symptom testimony
6 Plaintiff separately challenges the ALJ’s opinion for failing to provide clear and
7 convincing reasons when discrediting her subjective symptom testimony. (See Pl.’s MSJ
8 at 25-28 (citing SSR 16-3p, 2016 WL 1119029).) Plaintiff argues that the ALJ failed to
9 sufficiently assert why evidence in the record is not consistent with her allegations during
10 her hearing with the ALJ, specifically: (1) that the ALJ did not demonstrate how
11 Plaintiff’s reported work history and her spouse’s third-party function report undermine
12 her testimony that she was unable to work full-time before her DLI in March of 2013 (see
13 id. at 26:4-28:8); and (2) that the ALJ’s purported reasons for rejecting her symptom
14 testimony relied on incomplete evaluations of medical evidence. (See id. at 26:11-13,
15 28:9-16.)
16 The Commissioner contends in response that the ALJ properly considered
17 Plaintiff’s subjective symptom testimony. (See Def.’s MSJ at 11.) Noting that the ALJ
18 compared medical opinion evidence, as well as Plaintiff and her spouse’s statements with
19 other objective evidence in the record, the Commissioner argues that Plaintiff’s
20 arguments amount to a dispute over the ALJ’s reasonable interpretation of the record,
21 which the Court cannot evaluate anew and must therefore defer to the ALJ’s opinion.
22 (See Def.’s MSJ at 12 (citing Terry v. Saul, 998 F.3d 1010, 1013 (9th Cir. 2021)).)
23 a. Applicable law
24 Once a claimant shows an underlying impairment and a causal relationship
25 between the impairment and some level of symptoms, clear and convincing reasons are
26 needed to reject a claimants’ testimony if there is no evidence of malingering. Carmickle
27 v. Comm’r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the
28 plaintiff is malingering, “where the record includes objective medical evidence
1 establishing that the claimant suffers from an impairment that could reasonably produce
2 the symptoms of which he complains an adverse credibility finding must be based on
3 clear and convincing reason”) (internal quotation marks and citations omitted); see also
4 Molina, 674 F.3d at 1112 (the ALJ engages in a two-step analysis for subjective symptom
5 evaluation: First, the ALJ determines whether there is “objective medical evidence of an
6 underlying impairment which could reasonably be expected to produce the pain or other
7 symptoms alleged”; and second, “if the claimant has presented such evidence, and there
8 is no evidence of malingering, then the ALJ must give specific, clear and convincing
9 reasons in order to reject the claimant's testimony about the severity of the symptoms.”)
10 (internal quotation marks and citations omitted).
11 When evaluating subjective symptom testimony, “[g]eneral findings are
12 insufficient.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v.
13 Chater, 81 F.3d 821, 834 (9th Cir. 1995) (internal quotations omitted). “[A]n ALJ does
14 not provide specific, clear, and convincing reasons for rejecting a claimant's testimony by
15 simply reciting the medical evidence in support of his or her residual functional capacity
16 determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). Instead,
17 “the ALJ must specifically identify the testimony she or he finds not to be credible and
18 must explain what evidence undermines the testimony.” Holohan, 246 F.3d at 1208; see
19 also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons proffered must be
20 “sufficiently specific to permit the reviewing court to conclude that the ALJ did not
21 arbitrarily discount the claimant's testimony.”).
22 b. Analysis
23 The ALJ found Plaintiff’s medically determinable impairments could reasonably
24 be expected to produce some of the symptoms alleged, but that Plaintiff’s statements
25 concerning the intensity, persistence, and limiting effects of these symptoms were not
26 entirely consistent with the medical evidence in the record. (See AR at 22.) In
27 discussing Plaintiff’s credibility about her reported symptoms during the hearing, the ALJ
28 made several observations about other evidence in the record, both medical and non-
1 medical:
2 [t]here is little evidence to support that the claimant’s alleged
serious limitations began prior to her date last insured of March
3
31, 2013, and substantial evidence shows that they did not. For
4 example . . . the claimant’s spouse, submitted a third-party
function report dated August 13, 2018, stating then that the
5
“claimant’s health had declined rapidly in the last three years”
6 (i.e., since August 2015) and that previously the claimant had
been “ambulatory, reading, writing professionally, an animal
7
behaviorist; traveled extensively specializing in equine behavior
8 – researching and compiling data for a book”, rather than being
bedridden as claimed at the date of the third-party function report
9
(5E/12). The claimant was unclear in her testimony on whether
10 her spouse was able to observe her condition in 2012. In any
event, as the claimant’s spouse specifically reported that the
11
claimant’s health declined rapidly only well after her date last
12 insured, i.e., starting in in [sic] 2015, the undersigned does not
consider the spouse’s third-party function report as evidence
13
supporting the claimant’s allegations of disability, with respect
14 to the period before the date last insured (5E/12). The claimant’s
own function report indicated that she had an electric wheelchair
15
prescribed, but not until 2015 (4E/12). The claimant also
16 reported in her work history report that she worked as an animal
behaviorist until March 2015 (6E). The claimant testified that
17
much of her more recent income was derived through residual
18 sales, but there is little evidence to corroborate this claim
(Hearing Testimony).
19

20 Id.
21 At least one of the ALJ’s reasons for discrediting Plaintiff’s subjective symptom
22 testimony was supported by clear and convincing reasons. The ALJ properly noted that
23 despite Plaintiff’s testimony during the hearing that she stopped working regularly in
24 2012, her submitted work history report notes that she worked as an animal trainer until
25 2015 for eight hours a day, five days a week. (See id. (citing AR at 386)); (see also id. at
26 68-69 (Plaintiff’s description of her work from her alleged disability date through her
27 DLI as based almost exclusively on residual sales of training materials).) The evidence
28 that the ALJ cited in discounting Plaintiff’s statements about the severity of her
1 symptoms such that she stopped working regularly in 2012 was in direct contradiction
2 with Plaintiff’s explanation during the hearing that she worked by facilitating sales of her
3 instructional DVDs after her alleged onset date, and the ALJ offered a specific reason for
4 concluding that Plaintiff’s testimony was not credible as to this basis. Although the
5 evidence in the record could reasonably be interpreted differently, it is not within the
6 Court’s purview to re-interpret sources in the record to reach a credibility finding. See,
7 e.g., Terry, F.3d at 1013 (noting that even when the evidence in the record is susceptible
8 to more than one rational interpretation, the Court must defer to the Commissioner’s
9 interpretation of evidence).
10 Most of the ALJ’s reasons for discrediting Plaintiff’s subjective symptom
11 testimony, however, were insufficient to support his adverse credibility determination—
12 owed mainly to the ALJ’s failure to identify how these pieces of evidence were
13 inconsistent with her testimony about her symptoms. For example, the ALJ placed a
14 great deal of weight on a third-party function report submitted by Plaintiff’s spouse, dated
15 August 13, 2018, which noted that Plaintiff’s health had “‘declined rapidly in the last
16 three years’; (i.e. since August 2015).” (See AR at 22 (citing id. at 381).) As Plaintiff
17 correctly notes, the ALJ failed to explain how a third-party function report noting that
18 Plaintiff’s health declined rapidly starting in 2015 such that she was bedridden in 2018 is
19 inconsistent with Plaintiff’s statements regarding her inability to work beginning in 2012.
20 (See Pl.’s MSJ at 26); see also Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014)
21 (citing Smolen v. Chater, 80 F.3d 1273, 1287 n.7 (9th Cir. 1996)) (“impairments that
22 would unquestionably preclude work and all the pressures of a workplace environment
23 will often be consistent with doing more than merely resting in bed all day”).
24 Additionally, failure of medical evidence to support a claimant’s testimony, as
25 opposed to its inconsistency with a plaintiff’s subjective statements about their symptoms
26 is a critical distinction. While an inconsistency between the medical evidence and a
27 claimant’s subjective symptom testimony can qualify as a clear and convincing reason to
28 reject a claimant’s statements, a finding that a claimant’s statements are not supported by
1 objective medical evidence in the record, standing alone, is not a clear and convincing
2 reason. See Rosel A. v. Saul, Case No.: 20cv1098-MSB, 2021 WL 2588156, at *6 (S.D.
3 Cal. June 23, 2021) (citing Stone v. Berryhill, No. 3:17-CV-1689-W (RNB), 2018 WL
4 2317549, at *1, *5 (S.D. Cal. May 17, 2018)).
5 The Commissioner cites to multiple aspects of the ALJ’s opinion discrediting
6 Plaintiff’s subjective symptom testimony, arguing that Plaintiff fails to contradict them.
7 (See Def.’s MSJ at 10-11.) None of the medical evidence cited by the ALJ, however, is
8 actually inconsistent with Plaintiff’s statements during the hearing that she was disabled
9 within the meaning of the Social Security Act in between September of 2012 and March
10 of 2013, the period of time between the alleged onset date and her DLI. For instance,
11 observations that evidence in the record indicates Plaintiff was not definitively diagnosed
12 with MELAS until 2017, or that she was not prescribed a wheelchair until 2015, are not
13 responsive to, and do not directly contradict Plaintiff’s contention that she experienced
14 bouts of overwhelming fatigue and muscle pain such that she could not work full time
15 after her alleged onset date in 2012. See Section VI.A.4, supra. The ALJ was not
16 permitted to merely list medical findings that indicated a lack of support for Plaintiff’s
17 claims—rather, he should have specifically asserted what parts of Plaintiff’s testimony
18 are inconsistent with those pieces of medical evidence. See Cassandra E. L. v. Saul, No.
19 5:19-CV-1783-KES, 2020 WL 2556348, at *6 (C.D. Cal. May 20, 2020); see also
20 Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015) (“We hold that an ALJ does
21 not provide specific, clear, and convincing reasons for rejecting a claimant's testimony by
22 simply reciting the medical evidence in support of his or her residual functional capacity
23 determination.”) The ALJ’s opinion therefore did not properly discredit Plaintiff’s
24 testimony based on an inconsistency with objective medical evidence in the record.
25 Moreover, an evaluation of Plaintiff’s credibility relied, at least in part, on the
26 ALJ’s accurate assessment of medical opinion evidence. See, e.g., Linkswiler, 2016 WL
27 5817055, at *8 (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)). As discussed in Section
28 VI.A. supra, the ALJ erred in evaluating the medical opinion evidence of Doctors Haas,
1 Biggs, and Shima, as well as N.P. Batac. Because the case should be remanded for
2 further consideration of medical opinion evidence, the ALJ should also reevaluate
3 Plaintiff’s credibility anew on remand. See id.
4 2. The ALJ’s RFC determination
5 In addition to challenging the ALJ’s evaluation of Plaintiff’s subjective symptom
6 testimony, Plaintiff contends that the ALJ’s determination of her RFC after evaluating the
7 medical opinion evidence in the record was not supported by substantial evidence. (See
8 Pl.’s MSJ at 24.) Because the RFC determination necessarily involves the evaluation of
9 medical opinion evidence, the Court cannot meaningfully address whether the ALJ’s
10 RFC determination was proper. See, e.g., James M. C. v. Comm’r of Soc. Sec., CASE
11 NO. 3:19-CV-6017-DWC, 2020 WL 4382483, at *10 (W.D. Wash. July 31, 2020) (“The
12 RFC assessment must always consider and address medical source opinions”) (internal
13 citations and quotations omitted); Margie R. v. Saul, Case No. 3:19-cv-00514-JR, 2022
14 WL 2208384, at *4 (D. Or. June 21, 2022) (declining to reach the ALJ’s RFC
15 determination after concluding that medical opinion evidence needed to be reevaluated
16 on remand); see also Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we
17 remand the case to the ALJ for the reasons stated, we decline to reach [plaintiff's]
18 alternative ground for remand.”). The ALJ must therefore reassess the RFC on remand.
19 VII. REMAND
20 A reviewing court has discretion to remand an action for further proceedings or for
21 a finding of disability and an award of benefits. See, e.g., Stone v. Heckler, 761 F.2d
22 530, 533 (9th Cir. 1985) (decision of whether to remand for further proceedings or
23 remand for immediate payment of benefits is within the discretion of the reviewing
24 court). Whether an action is remanded for further proceedings or for an award of benefits
25 depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d 1172,
26 1179 (9th Cir. 2000). In determining whether an award of benefits is warranted, the
27 Court conducts the “three-part credit-as-true” analysis. Garrison, 759 F.3d at 1020.
28 Under this analysis the Court considers whether: (1) the ALJ has failed to provide legally
1 sufficient reasons for rejecting evidence; (2) the record has been fully developed and
2 further proceeding would serve no useful purpose; and (3) if the improperly discredited
3 evidence is credited as true, the ALJ would be required to find the claimant disabled on
4 remand. See Domingues v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015).
5 Even if all the requisites are met, however, the court may still remand for further
6 proceedings “when the record as a whole creates serious doubt as to whether the claimant
7 is, in fact, disabled[.]” Garrison, 759 F.3d at 1021. “Serious doubt” can arise when there
8 are “inconsistencies between the claimant's testimony and the medical evidence,” or if the
9 Commissioner “has pointed to evidence in the record the ALJ overlooked and explained
10 how that evidence casts serious doubt” on whether the claimant is disabled under the Act.
11 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (citing Burrell v. Colvin, 775
12 F.3d 1133, 1141 (9th Cir. 2014)) (internal quotations omitted). The first requirement is
13 met here based on the ALJ’s harmful legal errors. As discussed above, the ALJ erred in
14 evaluating the opinions of Dr. Haas, Dr. Biggs, N.P. Batac, and Dr. Shima.
15 As for the second requirement, the Ninth Circuit has held that remanding for
16 further proceedings rather than for an immediate payment of benefits serves a useful
17 purpose where “the record has [not] been fully developed [and] there is a need to resolve
18 conflicts and ambiguities.” Treichler, 775 F.3d at 1101 (internal quotations and citations
19 omitted). Here, the Court concludes that the record is sufficiently ambiguous, making
20 remand for an immediate payment of benefits inappropriate. Accordingly, this case
21 should be remanded for further administrative proceedings to: (1) conduct further review
22 of the medical opinion evidence; (2) obtain additional VE testimony based on a
23 reformulated RFC; and (3) conduct any further necessary proceedings. See Burrell, 75
24 F.3d at 1141.
25 “When the ALJ denies benefits and the court finds error, the court ordinarily must
26 remand to the agency for further proceedings before directing an award of benefits.” Leon
27 v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2018) (citing Treichler, 775 F.3d at 1099).
28 “‘The decision of whether to remand a case for additional evidence, or simply to award
1 benefits, is within the discretion of the court.’” Trevizo v Berryhill, 871 F.3d 664, 682 (9th
2 Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)).
3 Here, Petitioner asks the Court to remand for an award of benefits on the basis of
4 the present record. (Pl.’s Reply at 5.) Where no useful purpose would be served by
5 further administrative proceedings, or where the record has been fully developed, it is
6 appropriate to exercise this discretion to direct an immediate award of benefits. Harman,
7 211 F.3d at 1179 (“[T]he decision of whether to remand for further proceedings turns
8 upon the likely utility of such proceedings.”). Where the circumstances of the case
9 suggest that further administrative review could remedy the ALJ's errors, however,
10 remand is appropriate. Revels, 874 F.3d at 668; McLeod v. Astrue, 640 F.3d 881, 888
11 (9th Cir. 2011); Harman, 211 F.3d at 1179-81. Remand is also warranted where “the
12 record as a whole creates serious doubt as to whether the [Plaintiff] is, in fact, disabled
13 within the meaning of the Social Security Act.” Burrell, 775 F.3d at 1141; see also
14 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004) (where it is not clear from the
15 record that the ALJ would be required to find a claimant disabled if all the evidence were
16 properly evaluated, remand is appropriate).
17 The Court concludes that the “rare circumstances that result in a direct award of
18 benefits are not present in this case.” Leon, 880 F.3d at 1047. The ALJ failed to
19 adequately address whether Plaintiff's impairments were present before her DLI under the
20 applicable social security rulings. See, e.g., Lichter v. Bowen, 814 F.2d 430, 436 (7th
21 Cir. 1987) (remanding for further consideration when medical opinion evidence might
22 have resulted in a different onset date determination); Ratto v. Sec’y, Dep’t of Health &
23 Hum. Servs., 839 F. Supp. 1415, 1427 (D. Or. 1993) (same). One of the options
24 available to the ALJ to resolve the ambiguities in the record about the onset of a
25 claimant’s symptoms is to call a medical expert during the hearing. See Section VI.A.4
26 n.8, supra. Accordingly, the Court RECOMMENDS that this case be remanded for
27 further administrative proceedings.
28
1 VIII. CONCLUSION & RECOMMENDATION
2 For the reasons set forth above, this Court RECOMMENDS that Plaintiff's
3 || Motion for Summary Judgment be GRANTED, and Defendant’s Cross-Motion for
4 ||Summary Judgment be DENIED. This Court further RECOMMENDS the case be
5 || REMANDED for further proceeding consistent with the above.
6 Additionally, IT IS ORDERED that no later than February 6, 2023, any party to
7 || this action may file written objections with the Court and serve a copy on all parties. The
8 ||document should be captioned “Objections to Report and Recommendation.”
9 IT IS FURTHER ORDERED that any reply to the objections shall be filed with
10 || the Court and served on all parties no later than February 13, 2023. The parties are
11 || advised that failure to file objections with the specified time may waive the right to raise
12 || those objections on appeal of the Court’s order. See Turner v. Duncan, F.3d 449, 455
13 || (9th Cir. 1998); Martinez v. Y1st, 951 F.2d 1153, 1157 (9th Cir. 1991).
14 IT IS SO ORDERED
15 Dated: January 23, 2023
16
17 / LZ
18 Honorable Lupe Rodriguez, Jr.
19 United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10087105. Public record. Not legal advice.