# Olsen v. Kijakazi

> District Court, S.D. California · March 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10089273

## Case

- **Court:** District Court, S.D. California
- **Decided:** March 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10089273

## How later opinions describe it (automated extraction)

- reversing an ALJ’s selective 2 reliance “on some entries in [the claimants records while ignoring] the many others that 3 indicated continued, serious impairment”
- explaining that “a reviewing court should not be forced to speculate as to the 19 grounds for an adjudicator’s rejection” of certain evidence
- explaining 11 that an ALJ must provide an explanation supported by substantial evidence, which 12 articulates how they considered both supportability and consistency

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 BRIAN O.,1 Case No.: 22cv1652-LR

12 Plaintiff,
ORDER REGARDING JOINT
13 v. MOTION FOR JUDICIAL REVIEW

14 MARTIN O’MALLEY,2
[ECF No. 17]
Commissioner of Social Security
15
Defendant.
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18 On October 25, 2022, Plaintiff Brian O. (“Plaintiff”) filed a Complaint pursuant to
19 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social
20 Security (“Commissioner or Defendant”) denying his application for a period of
21 disability and disability benefits. (See ECF No. 1.) Now pending before the Court is the
22 parties’ Joint Motion for Judicial Review. (See J. Mot. Judicial Review, ECF No. 17 (“J.
23

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25 1 In the interest of privacy, this Order 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).
26
2 Plaintiff named Kilolo Kijakazi, who was the Acting Commissioner of Social Security when he filed
27 his Complaint on October 25, 2022, as a Defendant in this action. (See ECF No. 1 at 1.) Martin
O’Malley is now the Commissioner of Social Security, and he is automatically substituted as a party
28
1 Mot.”).) For the reasons set forth below, the Court ORDERS that judgment be entered
2 reversing the decision of the Commissioner and remanding this matter for further
3 administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
4 I. PROCEDURAL BACKGROUND
5 On June 3, 2016, Plaintiff filed his first application for a period of disability and
6 disability insurance benefits, alleging disability beginning on October 17, 2015 (“First
7 Application”). (See Certified Admin R. 340-41, ECF No. 12 (“AR”).) Although it
8 appears that this application was denied initially on October 6, 2016 (see id. at 222),
9 Plaintiff filed a protective application alleging the same disability onset date on January
10 24, 2019 (“Second Application”). (See AR at 340.) Plaintiff’s Second Application was
11 denied initially (see id. at 168) and denied on reconsideration on September 30, 2019.
12 (See id. at 174.) On July 14, 2020, a hearing regarding Plaintiff’s application was held
13 before Administrative Law Judge (“ALJ”) Michael Richardson.3 (See id. at 95-100.)
14 During the hearing, the ALJ indicated that he had attempted to secure the testimony of an
15 orthopedic medical expert (“ME”), but that he had been unable to do so by the time the
16 hearing started. (See id. at 95.) Plaintiff’s counsel agreed to a short continuance of the
17 hearing. (See id. at 96-97.) On August 18, 2020, a continued hearing was held before the
18 ALJ—during which both a ME and vocational expert (“VE”) were also present. (See id.
19 at 56-92.) On September 10, 2020, the ALJ determined that Plaintiff was not disabled
20 between the alleged disability onset date of October 17, 2015 and his date last insured
21 (“DLI”) of December 31, 2018. (See id. at 150.)
22 On April 12, 2021, the Appeals Council granted Plaintiff’s request for review,
23 vacating and remanding the ALJ’s decision for the following reasons:
24
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3 Prior to the hearing, Plaintiff’s counsel submitted a brief to the Social Security Administration’s Office
26 of Disability Adjudication and Review regarding Plaintiff’s application for disability benefits. (See AR
at 457-64.) In his brief, Plaintiff’s counsel noted that although Plaintiff had submitted his First
27 Application in June of 2016, neither Plaintiff nor his representative had ever received the notice of its
denial from the agency. (See id. at 457-46.) Plaintiff’s counsel therefore requested that the ALJ re-open
28
1 The [ALJ] reopened an October 6, 2016 unfavorable initial
determination on a claim for disability insurance benefits . . .
2
[h]owever, the decision does not contain any rationale for
3 reopening the determination . . . since the application date on this
prior claim was June 2, 2016 [AR at 135], the decision should
4
have included a weight analysis of the opinion evidence . . . The
5 decision instead contains a persuasiveness analysis . . . [u]pon
remand, the [ALJ] will further evaluate the opinion evidence and
6
provide rationale for opening the determination on the prior
7 claim.

8
(Id. at 159.)
9
The ALJ then held a remand hearing on August 19, 2021, during which Plaintiff
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was again represented by counsel. (See id. at 37-54.) During the remand hearing,
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Plaintiff’s counsel agreed to withdraw his request to reopen Plaintiff’s First Application,
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mooting the Appeals Council’s remand order in part, (see id. at 39-40), and amended
13
Plaintiff’s alleged onset date to March 1, 2017. (See id. at 50-51.) Additionally,
14
Plaintiff’s counsel did not object to the use of testimony from both the ME and VE during
15
the first hearing in the ALJ’s new decision, obviating the need for any experts to testify
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during the remand hearing. (See id. at 43-44.) On September 22, 2021, the ALJ found
17
that Plaintiff was not disabled between his amended alleged disability onset date of
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March 1, 2017 and his DLI of December 31, 2018. (See id. at 28.) On October 11, 2021,
19
Plaintiff requested that the Appeals Council review the ALJ’s decision on remand. (See
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id. at 338.)
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On September 7, 2022, the Appeals Council denied Plaintiff’s second request to
22
review the ALJ’s decision. (See id. at 1-4.) Plaintiff filed the instant civil action on
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October 25, 2022. (See Compl., ECF No. 1.)
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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
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claimant must demonstrate an “inability to engage in any substantial gainful activity by
28
1 reason of any medically determinable physical or mental impairment which can be
2 expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C.
3 § 423(d)(1)(A). The Commissioner has established a five-step process for determining
4 whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§
5 404.1520, 416.920. At the first step of the five-step sequential evaluation process, the
6 ALJ must determine if a claimant is engaged in “substantial gainful activity;” if so, the
7 claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At the second
8 step, the ALJ must determine whether the claimant has a “severe medically determinable
9 physical or mental impairment” or combination of impairments that has lasted or is
10 expected to last for a continuous period of at least 12 months; if not, the claimant is not
11 disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); see also 20 C.F.R.
12 §§ 404.1509, 416.909. At the third step, the ALJ must determine if the claimant’s
13 impairment(s) meets or equals that of a listed impairment; if so, the claimant is disabled.
14 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At the fourth step, the ALJ must
15 determine whether, based on the claimant’s residual functional capacity, the claimant can
16 perform his or her past relevant work; if so, the claimant is not disabled. 20 C.F.R.
17 §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At the fifth step, the ALJ must determine
18 whether, based on the claimant’s residual functional capacity, age, education, and work
19 experience, the claimant can make an adjustment to other work; if so, the claimant is not
20 disabled. 20 C.F.R. § 404.1520(a)(4)(v), 416.920(a)(4)(v).
21 III. SUMMARY OF THE ALJ’S FINDINGS
22 Before proceeding to the sequential disability analysis, the ALJ noted that
23 Plaintiff’s counsel did not have any objections to the use of testimony from the VE and
24 ME during the first hearing, and that Plaintiff’s counsel withdrew his request to reopen
25 Plaintiff’s First Application, mooting the order from the Appeals Council requiring him
26 to articulate his reasons for reopening Plaintiff’s First Application in part. (See AR at
27 15.) Additionally, the ALJ noted that Plaintiff’s Second Application was protectively
28 filed on January 23, 2019, with an amended alleged onset date of March 1, 2017, making
1 the revised rules for evaluating medical opinions applicable to his decision. (See id. at
2 15.)
3 At step one, the ALJ found that Plaintiff did not engage in substantial gainful
4 activity during the period from his alleged onset date of March 1, 2017 through
5 December 31, 2018, his DLI. (See id. at 17.) At step two, the ALJ found that Plaintiff
6 had the following impairments:
7 multilevel degenerative disc disease, status-post discectomy;
degenerative joint disease and osteoarthritis of the left shoulder;
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degenerative joint disease and osteoarthritis of the knees, status-
9 post arthroscopy; degenerative joint disease and osteoarthritis of
the hips; Achilles tendinopathy and rupture with bilateral
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debridement with reattachment, excisms, and calcaneal spurs;
11 obesity; and opioid dependence.

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(Id. at 17.) At step three, the ALJ found that Plaintiff did not have an impairment or
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combination of impairments that meets or medically equals the severity of one of the
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impairments listed in the Commissioner’s Listing of Impairments. (See id. at 21.) Next,
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the ALJ determined that Plaintiff has the residual functional capacity (“RFC”) to:
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perform sedentary work as defined in 20 CFR 404.1567(a)
17 except: the individual could lift and/or carry 10 pounds
occasionally and less than 10 pounds frequently; could sit for
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eight hours in an eight-hour workday; could stand and/or walk
19 for two hours in an eight-hour workday; needed to use a cane for
all ambulation; could occasionally perform overhead reaching
20
with the left upper extremity; could frequently handle, finger,
21 and feel with the left upper extremity; could not climb ladders,
ropes, or scaffolds; could occasionally perform all other postural
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activities; and had to avoid concentrated exposure to extreme
23 cold, extreme heat, vibrations, and hazards such as unprotected
heights or dangerous moving machinery.
24

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(Id. at 22-23.)
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At step four, the ALJ adduced and accepted the VE’s testimony that a hypothetical
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person with Plaintiff’s vocational profile and RFC would not be able to perform his past
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1 work. (See id. at 26-27.) The ALJ then proceeded to step five of the sequential
2 evaluation process. (See id. at 27.) Based on the VE’s testimony, the ALJ concluded that
3 “considering [Plaintiff’s] age, education, work experience, and residual functional
4 capacity, [Plaintiff] was capable of making a successful adjustment to other work that
5 existed in significant numbers in the national economy” and was therefore not disabled.
6 (See id. at 28.)
7 In determining that Plaintiff was not disabled prior to his DLI, the ALJ found
8 unpersuasive—and as a practical matter rejected—the opinion of Plaintiff’s pain
9 management physician, Bradley Chesler, M.D., who concluded that Plaintiff did not have
10 the residual functional capacity to sustain full-time work between the alleged onset date
11 of his symptoms and his DLI. (Id. at 26.)
12 IV. STANDARD OF REVIEW
13 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek
14 judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of
15 judicial review is limited, and the denial of benefits will not be disturbed if it is supported
16 by substantial evidence in the record and contains no legal error. See Molina v. Astrue,
17 674 F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation on other grounds.
18 The Court must affirm the Commissioner’s decision if it is “supported by
19 substantial evidence and based on the application of correct legal standards.” Sandgathe
20 v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (per curiam). “Substantial evidence” is
21 “such relevant evidence as a reasonable mind might accept as adequate to support a
22 conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Substantial
23 evidence means “more than a mere scintilla but less than a preponderance.” Id. In
24 determining whether the Commissioner’s decision is supported by substantial evidence,
25 the Court must “weigh both the evidence that supports and the evidence that detracts
26 from the ALJ’s factual conclusions.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519,
27 523 (9th Cir. 2014) (internal quotation omitted). When evidence is “susceptible to more
28 than one rational interpretation, one of which supports the ALJ’s decision,” the Court
1 must uphold the ALJ’s conclusion. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2 2002). The Court may consider “only the reasons provided by the ALJ in the disability
3 determination and may not affirm the ALJ on a ground upon which [he or she] did not
4 rely.” Revels v. Berryhill, 874. F.3d 648, 654 (9th Cir. 2017) (internal quotation
5 omitted).
6 Error in a social security determination is subject to a harmless-error analysis.
7 Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). “[A]n error is harmless so long
8 as there remains substantial evidence supporting the ALJ’s decision and the error does
9 not negate the ALJ’s ultimate conclusion.” Molina, 674 F.3d at 1115 (internal quotation
10 omitted). The Court must “look at the record as a whole to determine whether the error
11 alters the outcome of the case.” Id. An error that is “inconsequential to the ultimate
12 nondisability determination” is harmless. Id. (internal quotation omitted).
13 V. DISPUTED ISSUES
14 As reflected in the parties’ joint motion, Plaintiff contends that the ALJ committed
15 three errors:
16 1. The ALJ improperly evaluated the medical opinion evidence of Dr. Chesler.
17 (J. Mot. at 6-7.)
18 2. The ALJ improperly evaluated Plaintiff’s subjective symptom testimony. (J.
19 Mot. at 21.)
20 3. The ALJ failed to properly address whether Plaintiff can perform other work
21 in significant numbers in the national economy at step five of the sequential evaluation
22 process. (J. Mot. at 26-30.)
23 VI. DISCUSSION
24 The ALJ found that Plaintiff was not disabled between his amended alleged onset
25 date of March 1, 2017 and his DLI of December 31, 2018. (See AR at 15.) Plaintiff
26 contends that the ALJ reached this decision erroneously based on each of the three
27 challenges listed in Section V, supra. As will be explained in further detail below, the
28 Court concludes that the ALJ committed legal error in evaluating Dr. Chesler’s opinion
1 and that remand for further development of the record is appropriate on this basis.
2 A. The ALJ’s Evaluation of Dr. Chesler’s Medical Opinion
3 1. Relevant factual background
4 Notes pertaining to Plaintiff’s course of treatment with Dr. Chesler for pain
5 management extend as far back as March of 2016 in the record, when Plaintiff received a
6 referral related to chronic Achilles insertional tendinopathy, calcaneal spurs, and
7 tendinitis. (See AR at 1437.) Dr. Chesler started Plaintiff on a pain management
8 regiment, which included oxycodone, and saw Plaintiff for follow-up examinations and
9 medication refills approximately every four weeks. (See, e.g., id. at 1438 (noting follow-
10 up appointment in four weeks).) In addition to describing Plaintiff’s pain and adjusting
11 medication at monthly follow-up examinations, Dr. Chesler noted Plaintiff’s symptoms
12 related to his joint impairments and tracked some of the procedures that other physicians
13 were using to correct them. (See, e.g., id. at 751 (noting the use of a scooter after a
14 surgical procedure).) These notes also document Plaintiff’s response to procedures,
15 including a Achilles debridement surgery on Plaintiff’s right foot in April of 2017 to
16 address Plaintiff’s heel spurs and Achilles tendon (see id. at 751; see also id. at 588), as
17 well as a tendon procedure on Plaintiff’s left leg in October of 2017 to address tendinosis
18 and a Haglund prominence. (See id. at 737; see also id. at 560.) Although they are
19 sometimes short in length and parts of the content in each note are copied from previous
20 examinations, Dr. Chesler’s notes document multiple instances of Plaintiff’s response to
21 surgeries, physical therapy, and other treatment methods. (See, e.g., id. at 694-766
22 (documenting Plaintiff’s pain symptoms through a discussion of Plaintiff’s response to
23 medication).)
24 Dr. Chesler completed a “Physical Medical Opinion” form on March 5, 2020,
25 which described some of Plaintiff’s impairments in the disability context. (See AR at
26 979-83.) Specifically, Dr. Chesler explained that he had seen Plaintiff monthly starting in
27 March of 2016, and that his diagnoses of Plaintiff’s impairments included chronic low
28 back pain and cervical radiculopathy. (See id. at 979.) In the “symptoms” section of the
1 form, Dr. Chesler noted that Plaintiff had “lumbar and cervical pain with loss of
2 endurance with poor sleep,” and that Plaintiff experienced “severe low back pain which is
3 . . . exacerbated by standing and sitting.” (Id.) The section identifying significant signs
4 and laboratory findings related to these impairments includes “cervical MRI 4-579 C67
5 severe foraminal stenosis.” (Id.) In describing the treatment and response, including any
6 side effects of prescribed medication, Dr. Chesler noted that “side effects of medicine
7 include reduced alertness, constipation, and balance issues.” (Id.) Notably, Dr. Chesler
8 opined that emotional factors contributed to the severity of Plaintiff’s symptoms and
9 functional limitations, and checked a box identifying depression as a psychological
10 condition affecting Plaintiff’s physical condition. (See id. at 979-80.)
11 As a result of Plaintiff’s impairments, Dr. Chesler’s medical opinion form
12 explained that Plaintiff would be able to walk three city blocks without rest or severe
13 pain; that Plaintiff would only be able to sit for fifteen minutes at one time before needing
14 to get up; that Plaintiff would only be able to stand for fifteen minutes before needing to
15 sit down; that he could sit and stand or walk for about two hours in an eight-hour
16 workday; that he would need a job that permits him to shift positions at will from sitting,
17 standing, or walking; that he would need to include periods of walking for five minutes at
18 a time every thirty minutes during an eight hour workday; and that his pain would cause
19 the need to take five-minute unscheduled breaks every hour during an eight hour
20 workday. (See id. at 980.) Dr. Chesler noted that Plaintiff would not need to use a cane
21 while engaging in occasional standing or walking, that Plaintiff would likely be off task
22 for ten percent of an eight hour workday, and absent for more than four days a month due
23 to his symptoms. (See id. at 981-82.) In explaining that Plaintiff’s impairments were
24 “reasonably consistent with the symptoms and functions limitations” described
25 throughout the form, Dr. Chesler noted “severe multi-joint rheumatoid arthritis which is
26 hereditary.” (Id. at 982.) Finally, in identifying the factors he considered in developing
27 this opinion, Dr. Chesler checked boxes for “longitudinal perspective,” noting a “[four]
28 year history,” “patient’s complaints,” “consistency of patient’s complaints over time,”
1 and “patient’s response to treatment.” (Id.) Dr. Chesler noted that the earliest date these
2 limitations could have applied to Plaintiff was March of 2017. (Id. at 983.)
3 The ALJ found Dr. Chesler’s opinion about Plaintiff’s limitation non-persuasive,
4 reasoning as follows:
5 Dr. [Chesler’s] opinion is unpersuasive because it is inconsistent
with and not supported by the objective medical evidence.
6
Repeated testing for RF and ANA have been negative; and the
7 claimant sought little to no mental health treatment through the
date last insured, so Dr. Chesler’s inclusion of these as
8
contributing factors appears unsupported. Dr. Chesler’s opinion
9 appears to rely more on the claimant’s subjective reports rather
than objective findings, and Dr. Chesler provided his opinion
10
more than a year after the expiration of the claimant’s date last
11 insured, December 31, 2018. Notably, the objective medical
evidence also supports a limitation related to the use of an
12
assistive device because the claimant’s treatments indicate that
13 he was using a cane through the date last insured while
recovering from surgeries and working with physical therapy.
14
Through the date last insured, the claimant’s symptoms included
15 neck pain, back pain, left upper extremity pain with numbness,
and lower extremity pain. While his symptoms certainly
16
precluded the type of physically demanding work that he had
17 done in the past (see below), these symptoms were stable enough
with treatment, including pain medication and physical therapy,
18
to allow for a range of sedentary work as described above. In
19 sum, the claimant’s exertional limitations would not have
precluded the performance of sedentary work with some
20
additional limitations related to the use of an assistive device as
21 well as manipulative limitations related to the use of his upper
left extremity.
22

23 (Id. at 26.)
24 2. Applicable law
25 In evaluating the intensity and persistence of a claimant’s symptoms, an ALJ must
26 consider all the available evidence from the claimant’s “medical sources and nonmedical
27 sources about how [the claimant’s] symptoms affect [her].” 20 C.F.R. § 404.1529(c)(1).
28 Medical opinions are more persuasive if they are supported by explanations and objective
1 medical evidence, 20 C.F.R. § 404.1520c(c)(1), and if they are consistent with the
2 evidence from other medical and nonmedical sources, id. § 404.1520c(c)(2).
3 Furthermore, the medical opinion of a specialist “about medical issues related to his or
4 her area of specialty” is more persuasive than that of a non-specialist. Id. §
5 404.1520c(c)(4). The purpose, length, and extent of a medical source’s treatment
6 relationship with the claimant, the kinds and extent of examinations and testing
7 performed, and the frequency of the claimant’s visits, may also demonstrate a medical
8 source’s knowledge and understanding of the claimant’s impairments. Id. §
9 404.1520c(c)(3)(i)-(v). In addition, a medical source’s familiarity with other evidence in
10 a claim may make the source’s opinion more persuasive. Id. § 404.1520c(c)(5).
11 Revised regulations apply to an ALJ’s analysis of medical opinion evidence for
12 claims filed on or after March 17, 2017. See Revisions to Rules Regarding the
13 Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01, at 5867-68
14 (Jan. 18, 2017). The Ninth Circuit has recognized that these new regulations upend the
15 longstanding treating physician rule. See Woods v. Kijakazi, 32 F.4th 785, 790-94 (9th
16 Cir. 2022). Under these new rules, the ALJ is no longer required to “defer or give any
17 specific evidentiary weight, including controlling weight, to any medical opinion(s).” 20
18 C.F.R. § 404.1520c(a). The ALJ must instead consider all the medical opinions in the
19 record and evaluate each medical opinion’s persuasiveness using factors including
20 supportability, consistency, relationship with the claimant, and specialization. Id. The
21 two most important factors in determining a medical opinion’s persuasiveness are the
22 opinion’s “supportability” and “consistency.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a).
23 The ALJ must articulate “how [he or she] considered the supportability and consistency
24 of factors for a medical source’s medical opinions . . . in [his or her] decision.” 20 C.F.R.
25 §§ 404.1520c(b)(2), 416.1520c(b)(2).
26 Related to supportability, the “more relevant the objective medical evidence and
27 supporting explanations presented by a medical source are to support his or her medical
28 opinion(s), the more persuasive the medical opinions . . . will be.” 20 C.F.R.
1 §§ 404.1520c(c), 416.920c(c)(2). For consistency, the “more consistent a medical
2 opinion(s) is with the evidence from other medical sources in the claim, the more
3 persuasive the medical opinion(s) . . . will be.” 20 C.F.R. §§ 404.1520c(c)(2),
4 416.320c(c)(2). The ALJ is not required to explain how they considered other factors,
5 unless they find that two or more medical opinions about the same issue are equally well-
6 supported and consistent with the record, but not identical. See 20 C.F.R.
7 §§ 404.1520c(b)(3), 416.1520c(b)(3).
8 An ALJ’s decision, “including the decision to discredit any medical opinion, must
9 simply be supported by substantial evidence” under the new regulations. Woods, 32
10 F.4th at 787; see also Kitchen v. Kijakazi, 82 F.4th 732, 739 (9th Cir. 2023) (explaining
11 that an ALJ must provide an explanation supported by substantial evidence, which
12 articulates how they considered both supportability and consistency). ALJs must address
13 how they considered the consistency and supportability factors in sufficient detail to
14 allow a reviewing court to conduct a meaningful review of whether that reasoning is
15 supported by substantial evidence. See Titus L. S. v. Saul, Case No. 2:20-cv-04825-
16 AFM, 2021 WL 275927, at *7 (C.D. Cal. Jan. 26, 2021) (citing Ford v. Saul, 950 F.3d
17 1141, 1154 (9th Cir. 2020)); see also Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir.
18 1991) (explaining that “a reviewing court should not be forced to speculate as to the
19 grounds for an adjudicator’s rejection” of certain evidence); see also Treichler v. Comm’r
20 of Soc. Sec. Admin, 775 F.3d 1090, 1103 (9th Cir. 2014) (“Although the ALJ’s analysis
21 need not be extensive, the ALJ must provide some reasoning in order for us to
22 meaningfully determine whether the ALJ’s conclusions were supported by substantial
23 evidence.”). The Ninth Circuit has noted that ALJs should attempt to use these terms
24 “with precision.” Woods, 32 F.4th at 793 n.4.
25 Although the revised rules provide new terms that an ALJ must use in evaluating
26 medical opinion evidence, the new rules do not replace all previous caselaw within the
27 Ninth Circuit. For example, ALJs still may not cherry-pick evidence in discounting a
28 medical opinion. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014); see also
1 Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (reversing an ALJ’s selective
2 reliance “on some entries in [the claimants records while ignoring] the many others that
3 indicated continued, serious impairment”). Nor, for instance, may the ALJ dismiss
4 medical opinions without providing a detailed explanation for doing so:
5 To say that medical opinions are not supported by sufficient
objective findings or are contrary to the preponderant
6
conclusions mandated by the objective findings does not achieve
7 the level of specificity our prior cases have required, even when
the objective factors are listed seriatim. The ALJ must do more
8
than offer his own conclusions. [They] must set forth [their] own
9 interpretation and explain why they, rather than the doctors', are
correct.
10

11 Regenmitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999)
12 (internal citation omitted).
13 3. Analysis
14 Plaintiff’s argument places a great deal of emphasis on medical evidence in the
15 record that he contends reasonably supports Dr. Chesler’s functional limitations
16 assessment, demonstrating that the ALJ did not properly weigh the medical evidence in
17 rejecting Dr. Chesler’s opinion. (See J. Mot. at 6-17.) Additionally, although somewhat
18 disorganized throughout his portion of the joint motion, Plaintiff also points to several
19 examples of reasoning that the ALJ used to discount Dr. Chesler’s opinion that he argues
20 were legally insufficient. Namely, Plaintiff contends that: (1) a “negative rheumatoid
21 arthritis and ANA test . . . are not necessarily determinative or particularly relevant if a
22 claimant has also been diagnosed with either fibromyalgia or the multiple
23 musculoskeletal impairments which affect and limit [Plaintiff]” (id. at 7:3-11); (2) Dr.
24 Chesler noted Plaintiff’s use of a cane multiple times throughout the record (see id. at
25 9:18-21); and (3) that Plaintiff’s severe cervical spine test results shortly after his DLI
26 were of such a magnitude that it was impossible for them to not have been disabling
27 during the disability period. (See id. at 15:6-16.)
28 In response, Defendant contends that the ALJ properly discussed Dr. Chesler’s
1 limitations assessment under the required supportability and consistency factors. (See id.
2 at 18-19.) Specifically, Defendant argues that the ALJ properly considered the
3 supportability factor by finding that Dr. Chesler relied more on Plaintiff’s subjective
4 complaints rather than objective findings. (See id. at 18:12-19:14.) Pointing to
5 “essentially identical physical examination findings at each visit throughout the relevant
6 period,” as well as reasoning by the medical expert during the administrative hearing that
7 such findings suggest Dr. Chesler never properly examined Plaintiff, Defendant contends
8 that the ALJ properly discussed the supportability factor in his decision. (Id. at 18:18-19,
9 19:9-14.) Additionally, Defendant contends that the ALJ properly analyzed Dr. Chesler’s
10 limitations assessment under the consistency factor, pointing to instances where Plaintiff
11 reported relief from Dr. Chesler’s treatment regiment and reported activities which
12 suggested that he was less impaired than Dr. Chesler’s assessment suggests. (See id. at
13 19:12-28.)
14 Although the parties’ briefs are somewhat divergent as to which parts of the ALJ’s
15 discussion are the most important, the Court concludes that the reasons presented in the
16 ALJ’s decision for disregarding Dr. Chesler’s opinion were not supported by substantial
17 evidence such that meaningful review can be conducted of his findings. As an initial
18 matter, the Court notes that the ALJ’s discussion of Dr. Chesler’s opinion conflates the
19 supportability and consistency factors such that the Court cannot clearly determine which
20 parts of the decision correspond to each factor. (See, e.g., AR at 26 (“Dr. [Chesler’s]
21 opinion is unpersuasive because it is inconsistent with and not supported by the objective
22 medical evidence.”).) Apart from one sentence in which the ALJ found that Dr.
23 Chesler’s discussion of rheumatoid arthritis and depression as contributing factors to
24 Plaintiff’s impairments were “unsupported” (see id.), the ALJ did not explain in any
25 meaningful fashion how he considered the supportability and consistency of Dr.
26 Chesler’s findings as separate criteria. Courts within the Ninth Circuit have concluded
27 that conflating the supportability and consistency factors, which ALJs are required to
28 analyze under the new regulations, renders the analysis of a medical opinion insufficient.
1 See, e.g., Lisa Ann M. v. Kijakazi, Case No. 2:23-cv-01081-MAA, 2024 WL 39193, at
2 *3 (C.D. Cal. Jan. 3, 2024) (“Supportability and consistency are terms of art and are not
3 interchangeable.”) (internal quotations and citation omitted); E.S. v. Kijakazi, Case No.
4 20-cv-06550-JCS, 2022 WL 4292333, at *33 (N.D. Cal. Sept. 16, 2022) (noting that the
5 ALJ conflated the supportability and consistency factors under the new regulations
6 because the ALJ failed to articulate which evidence supported the findings regarding each
7 factor); see also 20 C.F.R. § 404.1520c(b)(2) (ALJs must “explain how [they] considered
8 the supportability and consistency factors” when determining how persuasive they find a
9 medical opinion)). While the Court recognizes that it is sometimes possible to deduce
10 which parts of the ALJ’s analysis supports each factor depending on whether the ALJ
11 compared the medical opinion to the source’s own treatment notes and examination
12 findings (see 20 C.F.R. § 404.1520c(c)(1) (supportability)) or other evidence in the
13 record (see 20 C.F.R. § 404.1520c(c)(2) (consistency)), the ALJ’s decision here—at
14 best—leaves the categorization of each of these factors to the Court’s interpretation. Cf.
15 Woods, 32 F.4th at 793 n.4 (“to avoid confusion in future cases, ALJs should endeavor to
16 use these two terms of art—‘consistent’ and ‘supported’—with precision.”). Although
17 the Court will nevertheless endeavor to analyze the ALJ’s discussion of each factor, as
18 will be explained in more detail below, this lack of clarity as to which evidence supported
19 the findings regarding each discrete factor only serves to highlight the overall
20 deficiencies in the ALJ’s discussion of Dr. Chesler’s opinion.
21 After categorizing each piece of record evidence cited by the ALJ in finding Dr.
22 Chesler’s opinion unpersuasive, the Court concludes that this part of the ALJ’s finding
23 was not supported by substantial evidence. With respect to the supportability factor, the
24 ALJ provided no explanation whatsoever for the finding that Dr. Chesler’s opinion “was
25 based more on [Plaintiff’s] subjective reports rather than objective findings.” (AR at 26.)
26 While An ALJ may reject a doctor’s opinion if it is based in large part on a claimant’s
27 subjective reports that are properly discounted, see Tommasetti v. Astrue, 533 F.3d 1035,
28 1041 (9th Cir. 2008), here, the record demonstrates that Dr. Chesler saw Plaintiff on a
1 monthly basis for four years, and based many of his findings on his own examinations of
2 Plaintiff’s conditions. See, e.g., (AR at 979 (noting monthly contact since 2016); 982
3 (noting that the opinion was based on both Plaintiff’s subjective complaints and Dr.
4 Chesler’s own treatment of Plaintiff)); Rios v. O’Malley, Case No. 1:22-cv-01164-HBK,
5 2024 WL 280602, at *6 (E.D. Cal. Jan. 25, 2024) (“the ALJ provides no explanation for
6 the finding that Dr. Kurpiers’ opinion is based ‘almost exclusively’ on Plaintiff’s self-
7 reports.”).
8 Defendant argues that the ALJ’s reasoning about Dr. Chesler’s opinion is “well
9 supported because although Dr. Chesler conducted physical examinations of Plaintiff and
10 saw Plaintiff at least monthly, his examination findings were essentially identical” for
11 each medical visit. (J. Mot. at 18.) Pointing to the ME’s testimony that identical
12 examination notes by a particular doctor throughout the longitudinal record suggest a
13 patient did not actually receive a detailed physical examination, Defendant contends that
14 these abnormalities support the ALJ’s finding that Dr. Chesler’s opinion was based
15 heavily on Plaintiff’s subjective reports. (See id. at 19:8-14.) While the agency medical
16 expert’s reasoning during the hearing could certainly support the ALJ’s findings with
17 respect to Dr. Chesler’s reliance on Plaintiff’s subjective complaints, the problem with
18 this argument is that it is not presented anywhere in the ALJ’s decision. See Brown-
19 Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (a court “cannot substitute [its own]
20 conclusions for the ALJ’s, or speculate as to the grounds for the ALJ’s conclusions.”);
21 Suzi Marie H. v. O’Malley, Case No.: 3:22-cv-01963-WQH-AHG, 2024 WL 965233, at
22 *8 (S.D. Cal. Mar. 5, 2024) (quoting Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir.
23 2003)) (“‘We require the ALJ to build an accurate and logical bridge from the evidence
24 to her conclusions so that we may afford the claimant meaningful review of the SSA’s
25 ultimate findings’”).
26 Additionally, the fact that Dr. Chesler “provided his opinion more than a year after
27 the expiration of [Plaintiff’s] [DLI],” without any further explanation from the ALJ as to
28 why this undercuts the supportability of the opinion, is not reasoning that is supported by
1 substantial evidence. Dr. Chesler specifically indicated that the impairments he assessed
2 in his opinion form existed since March of 2017, (see AR at 983) and that he based his
3 opinion on his four-year treatment history with Plaintiff, including treatment during
4 Plaintiff’s alleged disability period. (See id. at 979.) Without any further discussion as to
5 why the retrospective nature of the opinion affected its persuasiveness, this reasoning was
6 also insufficient to reject Dr. Chesler’s limitations assessment. See, e.g., Svaldi v.
7 Berryhill, 720 F. App’x 342, 343-44 (9th Cir. 2017) (where medical opinions “refer
8 back” to the same chronic condition and symptoms discussed in a physician’s opinion
9 from several years prior, the “fact that those opinions were issued significantly after
10 Svaldi’s DLI does not undercut the weight those opinions are due”). The ALJ
11 accordingly failed to properly articulate the supportability factor with regard to Dr.
12 Chesler’s opinion. Remand is therefore warranted on this issue.
13 Regarding the consistency factor, many of the reasons comparing Dr. Chesler’s
14 opinion to other evidence in the record were similarly unsupported by substantial
15 evidence. In an apparent response to the part of Dr. Chesler’s opinion form that noted
16 Plaintiff would not need to use a cane to stand or walk, the ALJ explained that “the
17 objective medical evidence also supports a limitation related to the use of an assistive
18 device because [Plaintiff’s] treatment records indicate that he was using a cane through
19 the date last insured while recovering from surgeries and working with physical therapy.”
20 (AR at 26.) Apart from failing to cite any records to support this comparison,4 the ALJ
21 ignored multiple instances in the record where Dr. Chesler noted Plaintiff’s use of a cane
22

23
4 It is possible that the ALJ intended to cast doubt on the supportability of Dr. Chesler’s opinion by
24
pointing to the discrepancy between his own treatment records, which note Plaintiff presenting with a
25 cane following surgeries, and his medical opinion form that did not assess the need for Plaintiff to use a
assistive device for standing and walking. Without any specific record citations, or indeed any
26 reasoning to explain whether the ALJ was examining such evidence under the supportability or
consistency factors, the Court declines to interpret the ALJ’s decision to include such reasoning. See
27 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009) (the Court “review[s] the
ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not post hoc
28
1 and assistive devices throughout the alleged disability period. (See, e.g., AR at 753
2 (treatment note from March 20, 2017 explaining that Plaintiff “is using a cane.”); 751
3 (treatment note from April 17, 2017 explaining that Plaintiff “is using a scooter” after
4 surgery); 749 (treatment note from May 15, 2017 explaining that Plaintiff was using a
5 walking boot to help with ambulation); 737 (October 30, 2017 note explaining that
6 Plaintiff was using a scooter to walk); 735 (November 27, 2017 note explaining that
7 Plaintiff was using a cane to walk); 732 (December 19, 2017 note explaining that
8 Plaintiff was weightbearing with a cane because of his heel pain).) The ALJ was not
9 permitted to point out only the portions of the medical evidence that bolstered his
10 conclusion, while ignoring multiple instances in the record of Dr. Chesler explaining that
11 Plaintiff needed an assistive device to walk during the alleged disability period. See, e.g.,
12 Napel v. Berryhill, No. CV 17–3857–PLA, 2018 WL 1737546, at *9 (C.D. Cal. Apr. 9,
13 2018) (citing Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“the ALJ in
14 this case ‘pointed’ only to the portions of the medical records that bolstered his findings .
15 . . the Court cannot conclude that under the circumstances here the reasons for the weight
16 given to [the doctor’s] opinions . . . were specific and legitimate and supported by
17 substantial evidence.”). This reliance on one page of Dr. Chesler’s opinion in the face of
18 a record with multiple references to the use of Plaintiff’s cane during the relevant period
19 was not a reason supported by substantial evidence.
20 Nor were the ALJ’s references to Plaintiff’s symptoms being “stable enough with
21 treatment, including pain medication and physical therapy,” sufficient reasons to find Dr.
22 Chesler’s opinion unpersuasive under the consistency factor. (See AR at 26.) Defendant
23 points to several instances in the record where Plaintiff reported (1) his pain medications
24 “providing 70 to 80 percent relief from his pain” (J. Mot. at 19:19-21 (citing AR at 665,
25 669, 677, 729, 735)), (2) “working with physical therapy” (id. at 19:22-23 (citing AR at
26 540)), and (3) leaving on a road trip to Flagstaff, Arizona, “suggesting that Plaintiff could
27 sit for more than the 2 hours a day opined by Dr. Chesler.” (Id. at 27-28 (citing AR at
28 713).) While the ALJ incorporates a cursory reference to his discussion of Plaintiff’s
1 subjective symptom testimony earlier in his decision, none of these reasons were
2 substantively discussed by the ALJ in rejecting Dr. Chesler’s opinion. (See AR at 26
3 (“While his symptoms certainly precluded the type of physically demanding work he had
4 done in the past (see below), these symptoms were stable enough with treatment,
5 including pain medication and physical therapy, to allow for a range of sedentary work as
6 described above.”); see also Tina L. R. v. Kijakazi, Case No. CV 21-3586 PVC, 2022
7 WL 6632198, at *5 (C.D. Cal. July 25, 2022) (concluding that while the ALJ may have
8 made findings about a doctor’s treatment records “in reviewing the overall record,” the
9 citations did not sufficiently connect to the ALJ’s supportability analysis) (internal
10 quotations omitted).
11 Even if the ALJ had used the citations to Plaintiff’s symptoms being “stable
12 enough with treatment” elsewhere in the record to support his findings, these were not
13 sufficient reasons supported by substantial evidence to reject Dr. Chesler’s opinion.
14 Elsewhere in the ALJ’s decision, he briefly summarized two treatment notes by Dr.
15 Chesler in October and December of 2018, noting that Plaintiff’s “symptoms were stable
16 with his treatment program” (AR at 23 (citing AR at 665)), and that Plaintiff was
17 “tolerating a reduction in his pain medication dosage.” (Id. (citing AR at 698).)
18 Additionally, the ALJ noted that Plaintiff was “weight bearing with a cane and working
19 with physical therapy.” (Id. (citing AR at 540).) Contrary to Defendant’s analysis, the
20 treatment notes by Dr. Chesler cited earlier in the ALJ’s decision are two instances of
21 Plaintiff reporting stability and tolerating reduction in pain medication among dozens of
22 similar notes from Plaintiff’s monthly visits with Dr. Chesler. While some records do
23 reflect adjustments in the dosage of Plaintiff’s pain medication and that Plaintiff reported
24 relief in some instances, other treatment notes explain that Plaintiff’s pain was increasing,
25 particularly around the times of his surgical procedures. (See, e.g. AR at 724 (March 19,
26 2018 note explaining that Plaintiff’s pain had “flared up” that month); 716 (June 16, 2018
27 note explaining that Plaintiff had increased right hip pain, and that he needed to receive
28 the same prescription as a previous visit to function); 735 (noting flare-up of pain
1 following surgery on left foot).) The ALJ’s passing citation to two instances of
2 improvement or “stability with treatment,” without taking into account the larger record
3 of Plaintiff’s treatment with Dr. Chesler was not a reason to discount Dr. Chesler’s
4 opinion that was supported by substantial evidence.5 See Gregory T. v. Saul, No. 1:19-
5 cv-03116-MKD, 2020 WL 4730966, at *5 (E.D. Wash. May 12, 2020) (quoting Ghanim
6 v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014) (“observations of improvement must
7 be ‘read into the context of the overall diagnostic picture’ of an individual, and
8 improvement in some symptoms does not indicate nondisability . . . the ALJ is not
9 permitted to ‘cherry pick’ from mixed evidence to support a denial of benefits.”). Indeed,
10 further explanations in several of Dr. Chesler’s more detailed treatment notes suggest that
11 the improvement Plaintiff reported may have only been a discussion of the instantaneous
12 relief that Plaintiff felt after taking a dose of his prescribed pain medication. (See, e.g.,
13 AR at 1389 (May 2019 note explaining that “the relief that the medication provides is 70-
14 80% . . . the duration of the effect of the medication is 4-5 hours.”).
15 Similarly, the ALJ’s single citation to Plaintiff “working with physical therapy”
16 (AR at 23 (citing id. at 540)), does not present an accurate picture of how effective that
17 treatment was in contrast to Dr. Chesler’s opined limitations. Other treatment records
18 from the same healthcare provider as the one cited in the ALJ’s decision note that
19 Plaintiff had attempted physical therapy between foot surgeries, but that he reported it to
20 be ineffective due to his pain. (See, e.g., AR at 558 (“attempts at PT but difficulty given
21 the pain.”).) These reasons were not sufficient to reject Dr. Chesler’s opinion. See, e.g.,
22 Buethe v. Comm’r of Soc. Sec., No. 2:20-cv-552-KJN, 2021 WL 1966202, at *7 (E.D.
23 Cal. May 17, 2021) (“the text of the regulations explicitly require an explanation of how
24

25
26 5 Yet again, it is unclear to the Court whether the ALJ intended to use these findings by Dr. Chesler
under the supportability or consistency factor. Even if the ALJ did intend to include these citations in
27 his discussion of the supportability factor, because they were not supported by substantial evidence in
the first place, they cannot rescue the deficiencies in the ALJ’s discussion of that factor.
28
1 the ALJ considered the supportability and consistency of an opinion . . . there is no room
2 for ignoring significant portions of the record”).
3 Finally, the ALJ rejected Dr. Chesler’s opinion with regard to its consistency
4 because “repeated testing for RF and ANA have been negative; and the claimant sought
5 little to no mental health treatment through the date last insured, so Dr. Chesler’s
6 inclusion of these as contributing factors appears unsupported.”6 (AR at 26.) It is
7 unclear to the Court at the outset how antibody testing for rheumatoid arthritis is relevant
8 to Dr. Chesler’s opinions about Plaintiff’s limitations due to pain. Dr. Chesler diagnosed
9 Plaintiff with “chronic lower back pain” and “cervical radiculopathy,” and assessed
10 limitations due to those conditions, only noting that Plaintiff’s symptoms were consistent
11 with rheumatoid arthritis, rather than listing that condition as a contributing factor to
12 Plaintiff’s pain. (See id. at 982.) Additionally, the record reflects that Dr. Chesler
13 diagnosed Plaintiff with depression in January of 2020. (See id. at 1138.) As Dr. Chesler
14 completed the medical opinion statement in March of 2020, it follows that Plaintiff’s
15 depression could have been listed as an instantaneous contributing factor, rather than one
16 that was intended to apply precisely to the disability period at issue in this appeal. Even
17 if these reasons provided by the ALJ were sufficient to address the consistency factor,
18 however, the ALJ’s errors with respect to the supportability factor—explained above—
19 render the ALJ’s reasoning insufficient to reject Dr. Chesler’s opinion.
20 In sum, the ALJ’s failure to properly address the persuasiveness of Dr. Chesler’s
21 opinion under the required supportability and consistency factors pursuant to the
22 regulations was error. Even if the Court could determine which evidence was discussed
23 in relation to each discrete factor, the reasons provided by the ALJ to find Dr. Chesler’s
24

25
26 6 “A positive ANA test signifies an autoimmune reaction, which could indicate ‘lupus, rheumatoid
arthritis or scleroderma.’” Nieves v. Comm’r of Soc. Sec., 23-CV-5 (JGLC) (BCM), 2024 WL 992197,
27 at *2 n. 2 (S.D.N.Y. Feb. 20, 2024). Furthermore, rheumatoid factors (“RF”) are “proteins produced by
the immune system that, when present at high levels, can indicate rheumatoid arthritis.” Timothy P. v.
28
1 opinion unpersuasive were not supported by substantial evidence. Furthermore, because
2 this error impacts the ALJ’s RFC finding, it is not harmless. See, e.g., Slate v. O’Malley,
3 Case No. 1:23-cv-00092-SKO, 2024 WL 967661, at *8 (E.D. Cal. Mar. 6, 2024) (“it is
4 unlikely the ALJ’s error was ‘inconsequential,’ as medical opinion evidence may have
5 [affected] the ALJ’s RFC, as well as the testimony of the VE.”). The Court, however,
6 “expresses no opinion on the level of persuasiveness that should be ascribed to” Dr.
7 Chesler’s opinion, “[n]or does the undersigned express what plaintiff’s RFC should
8 ultimately be. These are for the ALJ to decide.” Buethe, 2021 WL 1966202, at *7.
9 Remand is accordingly warranted for the ALJ to reconsider Dr. Chesler’s opinion.
10 B. Additional Assignments of Error
11 In addition to the argument that the ALJ did not properly address the medical
12 opinion evidence discussed above, Plaintiff contends that the ALJ erred by improperly
13 discounting his subjective symptom testimony and did not properly address whether he
14 can perform other work in significant numbers in the national economy at step five of the
15 sequential evaluation process. (See J. Mot. at 21; 26.) Because the assessment of
16 Plaintiff’s symptom claims, and his findings at step five would be at least partially
17 dependent on the reevaluation of Dr. Chesler’s opinion, the Court declines to address
18 these additional assignments of error here. See, e.g., Morales v. Kijakazi, Case No. 1:20-
19 cv-00572-BAK, 2022 WL 970774, at *7 (E.D. Cal. Mar. 31, 2022) (“Because the ALJ’s
20 assessment of Plaintiff’s symptom claims, and the finding at steps four and five are at
21 least partially dependent on the ALJ’s reevaluation of medical evidence, including the
22 examining opinions of Dr. Michiel and Dr. Van Kirk, as discussed above, the Court
23 declines to address these challenges in detail here.”); Benjamin S. v. Kijakazi, Case No.
24 1:21-cv-00414-CWD, 2022 WL 16948759, at *7 (D. Idaho Nov. 15, 2022) (declining to
25 reach the plaintiff’s subjective symptom testimony when the ALJ’s analysis was affected
26 by the failure to properly consider medical opinion evidence).
27 VII. REMAND
28 A reviewing court has discretion to remand an action for further proceedings or for
1 a finding of disability and an award of benefits. See, e.g., Stone v. Heckler, 761 F.2d
2 530, 533 (9th Cir. 1985) (decision of whether to remand for further proceedings or
3 remand for immediate payment of benefits is within the discretion of the reviewing
4 court). Whether an action is remanded for further proceedings or for an award of benefits
5 depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d 1172,
6 1179 (9th Cir. 2000). In determining whether an award of benefits is warranted, the
7 Court conducts the “three-part credit-as-true” analysis. Garrison v. Colvin, 759 F.3d 995,
8 1020 (9th Cir. 2014). Under this analysis the Court considers whether: (1) the ALJ has
9 failed to provide legally sufficient reasons for rejecting evidence; (2) the record has been
10 fully developed and further proceeding would serve no useful purpose; and (3) if the
11 improperly discredited evidence is credited as true, the ALJ would be required to find the
12 claimant disabled on remand. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir.
13 2015).
14 Even if all the requisites are met, however, the court may still remand for further
15 proceedings “when the record as a whole creates serious doubt as to whether the claimant
16 is, in fact, disabled[.]” Garrison, 759 F.3d at 1021. “Serious doubt” can arise when there
17 are “inconsistencies between the claimant’s testimony and the medical evidence,” or if
18 the Commissioner “has pointed to evidence in the record the ALJ overlooked and
19 explained how that evidence casts into serious doubt” whether the claimant is disabled
20 under the Act. Dominguez, 808 F.3d at 407 (quoting Burrell v. Colvin, 775 F.3d 1133,
21 1141 (9th Cir. 2014) (internal quotations omitted)). The first requirement is met here
22 based on the ALJ’s harmful legal errors. As discussed above, the ALJ erred in evaluating
23 Dr. Chesler’s opinion.
24 As for the second requirement, the Ninth Circuit has held that remanding for
25 further proceedings rather than for an immediate payment of benefits serves a useful
26 purpose where “the record has [not] been fully developed [and] there is a need to resolve
27 conflicts and ambiguities.” Treichler, 775 F.3d at 1101 (internal quotations and citations
28 omitted). “When the ALJ denies benefits and the court finds error, the court ordinarily
1 remand to the agency for further proceedings before directing an award of benefits.”
2 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2018) (citing id. at 1099). Where the
3 || circumstances of the case suggest that further administrative review could remedy the
4 || ALJ’s errors, remand is appropriate. See Revels, 874 F.3d 648, 668 (9th Cir. 2017);
5 ||McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011). The Court concludes that
6 || additional administrative proceedings could provide clarification on the reasoning
7 || attendant in the ALJ’s decision in this case, making the immediate award of benefits
8 ||inappropriate. Although the ALJ failed to set out reasons supported by substantial
9 || evidence to find Dr. Chesler’s opinion unpersuasive, additional administrative
10 || proceedings could cure these deficiencies. (See, e.g., AR at 69-70 (discussing
11 || discrepancies in Dr. Chesler’s opinion); see also Leon, 880 F.3d at 1045 (‘the ALJ’s
12 || failure to provide sufficient reasoning despite a fully developed record, without any
13 ||conflicts, gaps, or ambiguities, does not automatically result in a determination that the
14 || claimant is therefore credible and should be awarded benefits immediately.”).
15 || Accordingly, this case should be remanded for further administrative proceedings to
16 || allow for proper consideration of the evidence of record. See, e.g., Rios, 2024 WL
17 280602, at * 6 (concluding that additional administrative proceedings would be useful
18 ||} when the ALJ improperly considered the medical opinion evidence, which was an
19 essential factual issue that needed to be resolved before benefits could be awarded).
20 VU. CONCLUSION
21 For the reasons set forth above, the Court ORDERS that judgment be entered
22 ||reversing the decision of the Commissioner and remanding this matter for further
23 || administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
24 IT IS SO ORDERED.
25 Dated: March 28, 2024
26
27 LA
Honorable Lupe Rodriguez, Jr.
28 United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10089273. Public record. Not legal advice.