# Jablonowski v. Commissioner Social Security Administration

> District Court, D. Oregon · October 19, 2023

URL: https://www.frixlaw.com/law-library/cases/10396632

## Case

- **Court:** District Court, D. Oregon
- **Decided:** October 19, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON ‘

ELIZABETH J.! :

Plaintiff, . Civ. No, 1:22-cv-00475-CL
v. □ OPINION AND ORDER
COMMISSIONER OF SOCIAL SECURITY -
ADMINISTRATION,
Defendant.

MARK D. CLARKE, Magistrate Judge.
Plaintiff Elizabeth J. (“Plaintiff”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration denying her claim for Supplemental
Security Income.(“SSI”). Full consent to magistrate jurisdiction was entered on March 29, 2022
(Dkt. #4). For the reasons provided below, the Commissioner’s decision is REVERSED and
REMANDED for further proceedings. .

‘In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name
- of the non-governmental party or parties in this case.
1 - Opinion and Order

BACKGROUND
Plaintiff is twenty-four years old and alleges she is unable to work due to mental and
physical impairments. Tr. 186.7 Plaintiff filed an application for SSI on May 17, 2019. Tr. 184.
In her application, Plaintiff claimed disability with an alleged onset date of June 10, 2014. Tr.
186. The claim was denied initially on September 10, 2019, and upon reconsideration on May
13, 2020. Tr. 54-68, 70-88. A hearing was held on March 24, 2021, before Administrative Law
Judge (“ALJ”) John Sullivan. Tr. 33-52. On April 16, 2021, the ALJ issued an unfavorable
decision, finding Plaintiff was not disabled from the alleged onset date through the date of
decision. Tr. 27. On April 16, 2021, the Appeals Council denied review, making the ALJ's

. decision the final agency decision. Tr. 1-3. This action followed.
DISABILITY ANALYSIS

. A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical.or mental impairment which .. . has lasted or.
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § .
423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for determining
whether an applicant is disabled within the meaning of the Social Security Act.” Keyser y.
Comm ’r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially

dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks
the following series of questions:
1, Is the claimant ‘performing “substantial gainful activity’? 20 C.F.R. §§
404.1520(a)(4)();_ 416.920(a)(4)(i). This - activity is work involving
significant mental or physical duties done or intended to be done for pay or
profit: 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such’
work, she is not disabled within the meaning of the Act. 20 C.F.R. §§
404.1520(a)(4)(@); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.

? Citations to “Tr.” Are to the Administrative Record. (ECF 11).
2 - Opinion and Order

2: Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless
expected to result in death, an impairment is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a); 416.921 (a). This impairment must have lasted or
. must be expected to last for a continuous period of at least 12 months. 20
C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe
impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)Gi);
416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis
proceeds to step three. ,

3. Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1?Ifso,then □
the claimant is disabled. 20 CFR. §§ 404.1520(a)(4)Gii);
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds to the “residual functional □□
capacity” (“RFC”) assessment.

a. The ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant’s RFC. This is an assessment of work-
related activities that the claimant may still perform on a regular and
continuing basis; despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e);
416.945(b)-(c). After the ALJ determines the claimant’s REC, the
analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R. §§
404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant.cannot perform his or
her past relevant work, the analysis proceeds to step five.
5. . Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is not
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c);
416.960(c). If the claimant cannot perform such work, he or she is disabled.
See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).

3 - Opinion and Order -

The claimant bears the burden of proof at steps one through four. Jd. at 954. The
Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual furictional
capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. □
1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work □

which exists in the national economy”). If the Commissioner fails to meet this burden, the . 4
claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v): 416.920(a)(4)(0). If, however, the
Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55 ;
Tackett, 180 F 3d at 1099.

THE ALJ’S FINDINGS
Applying the above analysis, the ALJ made the following findings:
_ 1. Plaintiff has not engaged in substantial gainful activity since May 17, 2019, the □
application date. Tr. 18.

2. Plaintiff has the following severe impairments: generalized anxiety disorder with
panic attacks and agoraphobia; posttraumatic stress disorder; depressive disorder; and
irritable bowel syndrome (20 C.F.R. § 416.920(c)).
(3. Plaintiff does not have an impairment or combination of impairments that meets or
medically equals the severity of on of the listed impairments in 20 C.F.R. Part 404,
* Subpart P, Appendix l (20 C.F.R. §§ 416.920(d), 416.925, 416.926). Tr. 18
4, Plaintiff has the residual functional capacity to perform “a full range of work at all
exertional levels” but with non-exertional limitations of: understanding,

4-Opinionand Order □

remembering, and carrying out instructions limited to performing simple, routine □
tasks; using judgment and dealing with changes in the workplace would be limited to
simple, work-related decisions; and interacting with supervisors, coworkers, and the
public on an occasional basis. “As a result of moderate impairment in concentration, □
persistence, and pace, as well as moderate impairment in understanding,
remembering, and applying information, the claimant would be off task 5% or less
scattered throughout the workday. The claimant must have ready access to a restroom
or be able to perform the work while wearing adult sanitary garments.” Tr. 20.
5. Plaintiff has no past relevant work. Tr. 26.
6. Plaintiff has a high school education. Tr. 26.
7. Considering Plaintiff's age, education, work experience, and REC, there are jobs that
exist in significant numbers in the national economy that plaintiff can perform, such”
as a cleaner of laboratory equipment, wall cleaner, and hand packager. Tr. 26.

8. Plaintiff has not been under a disability, as defined in the Social Security Act since
the alleged onset date. Tr. 27. .
. 9, STANDARD OF REVIEW □□
' The reviewing court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the legal findings are supported by substantial evidence in the record. 42

USC. § 405(2): Batson v. Comm Soc. Sec. Admin, 359 F.3d 1190, 1193 (9th Cir. 2004); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989), “Substantial evidence ... is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Vasquez v. Astrue, 372 F.3d 586, 591 (9th Cir. 2009) (citation omitted). “Where the evidence is
susceptible to more than one rational interpretation, the ALJ’s decision must be affirmed.”

5 - Opinion and Order .

Smartt v. Kijakazi, 53 F.Ath 489, 494 (9th Cir. 2022). In reviewing the Commissioner’s alleged
errors, this Court must weigh “both the evidence that supports and detracts from the
[Commissioner’s] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
Additionally, a reviewing court “cannot affirm the [Commissioner’s] decision on a ground that
the [Administration] did not invoke in making its decision.” Stout v. Comm r Soc. Sec. Admin,
454 F.3d 1050, 1054 (9th Cir. 2006) (citations, omitted). Finally, a court may not reverse the
Commissioner's decision on account of an error that is harmless. Jd. at 105 5-56. “(T]he burden
of showing that an error is harmful normally falls upon the party attacking the agency’s
determination.” Shinseki v. Sanders, 556 US. 396, 409 (2009). . .

Even where findings are supported by substantial evidence, “the decision should be set
aside if the proper legal standards were not applied in weighing the evidence and making the
decision.” Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42
U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript
record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or
‘without remanding the case for a rehearing.
DISCUSSION
. Plaintiff asserts that remand is warranted. because the ALJ erred in his RFC determination: □

because: _ . ‘ .
1. The ALJ erred in his assessment of the medical opinion evidence;
2. The ALJ did not discount Plaintiff s subjective symptom testimony for clear and
convincing reasons; and

3. The ALJ failed to develop the record. Pl. Br. 1-4.

6 - Opinion and Order .

For the following reasons, the Court finds that the ALJ erred. The decision of the ©

Commissioner is reversed and remanded for further proceedings.
1. The ALJ erred in evaluating and crediting the medical opinions. _
Under prior Social Security regulations, a hierarchy of medical opinions dictated the
weight that must be given by an ALJ: treating doctors were generally given the most weight and -
non-examining doctors were generally given the least weight. See 20 C.F.R. §§
404.1527, 416.927 (1991); 56 Fed. Reg. 36,932 (Aug. 1, 1991). For applications filed on or after
March 27, 2017, the new regulations eliminate the old hierarchy of medical opinions. 20 C.F.R.

§§ 404.1520c(a), 416.9200(a) (2017). Plaintiff filed an application for disability insurance
benefits on March 2, 2018. Thus, the Commissioner's new regulations apply to the ALJ's

assessment of this opinion. See 20 C.F.R. § 404.1520c; 82 Fed. Reg. 5844 (Jan. 18, 2017); see
also 82 Fed. Reg. 15,132 (Mar. 27, 2017) (correcting technical errors).
: The new rules no longer provide for any inherent weight: “We [the SSA] will not defer or
give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or

prior administrative medical finding(s) including those from your medical sources.” 20 C.F.R. §§
404.1520c(a), 416.9200(a). The SSA “considers” various medical opinions for claims filed on or
after March 27, 2017, and determines which medical opinions are. most persuasive. 20 CF.R.§§
404.1520c(a), 416.920c(a). In evaluating which opinions are most persuasive, the ALJ considers □

several factors. The two most important factors are supportability & consistency. ld Secondary
factors include the relationship with the claimant, specialization, and other factors. Id. at
404.1520c(c), 416.920c(c). .

Opinion and Order

Other medical opinions in the record include: (1) Scott Alvord, Ph.D., the State of .
Oregon Disability Determination Services’ psychological evaluator (Tr. 539); (2) James Buskirk,
M.D., and Abesie Kelly, Ph.D., the State agency psychological consultants for Plaintiff's
application at the initial and reconsideration levels (Tr. 61, 80); and (3) Lawrence Landwehr, .
M.D., and William Harrison, M.D., the State agency physical medical consultants for Plaintiff's
application. (Tr. 68, 83).
A. The ALJ did not err in reasoning that Plaintiff’s syncope was a symptom and
including limitations in Plaintiff's RFC.
Lawrency Landwehr, MD., and William Harrison, M.D. were State agency physical
medical consultants for Plaintiff's application at the initial and reconsideration levels. Tr. 68, 83.
The ALJ found their opinions unpersuasive due to attributing “postural and environmental
limitations to the claimant’s history of syncopy wee Tr. 25, 63, 82, 83). The ALJ did not assess
a medically determinable impairment of syncope because “there is only one documented event of
syncope in the record, and this occurred in 2018, prior to the application date.” Tr. 25.
On October 13, 201 8, Plaintiff presented to the Emergency Room symptoms of syncope
after complaining of “feeling lightheaded and nauseated[,]” causing her to fall down stairs,
where she again appeared to have syncopal episodes upon trying to get up and make it to the □ □
bathroom..Tr. 339. The attending on Plaintiff s record noted that they “think [Plaintiff's]
dehydration was the basis for her syncope.” Tr. 342. Though syncope was noted as an associated
symptom during a different Emergency Room visit for abdominal pain on April 18, 2019, the □
October 13 episode was the only recorded moment of syncope in the record. Tr. 327. Thus,
Plaintiff does have a history of syncope providing a medically determinable impairment. |
However, the ALJ did include this symptom in his RFC determination. Tr. 24 (“Possible syncope
has been considered in determining the claimant would be off task 5% or less scattered

8 - Opinion and Order .

throughout the workday.”). The ALJ’s interpretation of Plaintiff's alleged syncope was
reasonable and contains no error. .

B. The ALJ erred in partially crediting limitations fram Dr. South’s opinion, which
was inconsistent with other medical opinions in the record.
" Plaintiff contends that the ALJ erred in his.assessment of Dr. Susan South’s opinion
because it was from “almost four years ago” and was inconsistent with the other medical
opinions in the record. Pl. Br. 4.
Susan South, Ph.D., evaluated Plaintiff's prior disability application on October 3, 2017,
Tr. 91-101. Dr. South opined that Plaintiff would struggle with complex tasks and noted that | □
Plaintiff “is capable of cursory supervisor contact and would benefit from an understanding
supervisor Lee [and] is capable of cursory coworker contact ... [but] incapable of greater than
occasional general public contact ....” Tr. 99: Dr. South did not limit Plaintiff in her ability to
complete a normal workday or workweek. Tr. 99, Dr. South opined that the other medical
opinion on record, Dr. Alvord’s (discussed below) was unsupported. Tr. 100. Dr. South based
this opinion from her evaluation that Plaintif? s record showed that Plaintiff presented herself
neatly, was able to maintain eye contact and communicate effectively, even though soft-spoken,
and her memory and abstract thinking was intact. Tr. 95. Dr. South also noted that Plaintiff had
friends she went shopping and to the movies with and planned to attend prom, she had summer
vacation plans in other a attended high school with some accommodations, had plans to
eventually work as a vet secretary and to get her drivers permit, and she was not currently on □
anxiety medication. Tr. 95. □
The ALJ was “generally persuaded” by Dr. South’s opinion, opining that “it does not
reflect the last three or four years of treatments,” but the ALJ primarily used this opinion in
Plaintiff's RFC formulation. Tr. 20,25.

9 - Opinion and Order

The ALJ did not adequately support his decision to find Dr. South’s opinion mostly
persuasive while disregarding the other medical opinions. Firstly, Dr. South’s opinion is
inconsistent from the other medical opinions in the record. A month prior to Dr. South’s opinion,

Scott Alvord, Psy.D., evaluated Plaintiff on referral by the State of Oregon Disability _
Determination Services. Tr. 539. Dr. Alvord also limited Plaintiff in her ability to complete more
than simple tasks or have more than limited contact with co-workers or the public. Tr. 543.
However, Dr. Alvord further limited Plaintiff in her ability to attend work regularly or complete
a normal workday or workweek. Tr. 543. The ALJ simply stated that he found Dr. Alvord’s

opinion “somewhat persuasive” because Plaintiff was refusing psychiatric medication at the time
and the opinion did not reflect Plaintiff's later improvement. Tr. 25. This exact criticism by ‘the
ALJ applies to Dr. South’s opinion as well. The ‘ALJ gave no reason for finding Dr. South’s
limitations more convincing or acceptable than Dr. Alvord’s limitations on Plaintiff. Tr. 25.
Secondly, Dr. South’s opinion is inconsistent from the State agency psychological
consultants on Plaintif's disability application, both on initial and reconsideration levels. Tr. 61,
80. Both opinions limited Plaintiff to being “capable of limited to no interaction with the general
public.” Tr. 65, 85. The ALJ was “not fully persuaded” by their opinions because he was “not □
, persuaded that the claimant is capable or only ‘limited to no’ interaction with the general public”
because Plaintiff's improvement showed otherwise.? Again, the ALJ gave no reasoning for
discrediting these opinions over Dr. South’s limitations, even though these opinions occurred
years later in 2019 and 2020 and the same supposed Plaintiff improvement applied. Overall,
ALI did not support his decision in finding Dr. South’s opinion on Plaintiff's limitations more
convincing than the other medical opinions in the record. The Court finds the ALJ erred.

3 Regarding Plaintiff's improvement, this is discussed below pertaining to Plaintiff s subjective symptom
testimony. . ,

10 - Opinion and Order .

2. The ALJ provided clear and convincing reasons to discount Plaintiffs subjective
symptom testimony.

_ When deciding whether to accept the subjective symptom testimony of a claimant, the
ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective .
medical evidence of one or more impairments which could reasonably be expected to produce
some degree of symptom. Lingenfelter v. Astrué, 504 F.3d 1028, 1036 (9th Cir. 2007). The
claimant is not required to show that the impairment could reasonably be expected to cause the
severity of the symptom, but only to show that it could reasonably have caused some degree of
the symptom. Jd. | . .
In the second stage of the analysis, the ALJ must consider the intensity, persistence, and □
limiting effects of the alleged symptoms based on the entire record. SSR 16-3p at *7.-8, The ALJ
will consider the “[!]ocation, duration, frequency, and intensity of pain or other symptoms”
reported by the claimant, any medical sources, and any non-medical sources, Jd. The ALJ’s
‘decision must contain “specific reasons for the weight given to the individual’s symptoms, be
consistent with and support by the evidence, and be clearly articulated so the individual and any □

subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms.” Ja.
Additionally, the evidence upon which the ALJ relies must be substantial. See Holohan v.

Massinari, 246 F.3d 1195, 1208 (9th Cir. 2001). In rejecting claimant’s testimony about the.
severity of her symptoms, the ALJ must give “specific, clear and convincing reasons for doing .
50.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015).

A. Treatment oe
A claimant’s improvement with treatment is “an important indicator of the intensity and
persistence of... symptoms.” 20 CER. §§ 404.1529(c)(3). F or example, “iJmpairments that □
can be controlled effectively with medication are not disabling for the purpose of determining
- Opinion and Order

"eligibility for SSI benefits.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir.
2006). Symptom improvement, however, must be weighed within the context of an “overall
diagnostic picture.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001); see also Lester
-v. Chater, 81 F.3d 821, 833 (9th Cir. 1995) (“Occasional symptom-free periods . . . are not
inconsistent with disability.”). □

The ALJ reasoned that Plaintiff's routine, conservative treatment and shown □

improvement in her counseling records provide clear and convincing reasons for discounting her
testimony. Tr 21-23. The ALJ also stated that “i]t is notable that the claimant has had significant
gaps in her care, and that she has not required psychiatric hospitalization or intensive outpatient
treatment.” Tr. 22. The ALJ further reasoned “[t]hat the claimant has not sought increasing
dosages and changing medications may be an indication that her symptoms are not as intense and
persistent.” Tr. 22. .
An independent review of the record establishes that the ALI erred, in pat, in evaluating
Plaintiff’ s treatment. While the ALJ states that Plaintiff not seeking increasing medications
indicates conflict with her alleged symptoms, the ALJ later stated that “pursuit of treatment □

weigh[ed] in the claimant’s favor,” conflicting his own statement. Tr. 22. Furthermore, though
the ALJ stated that Plaintiff did not seek increases in medication, the ALJ himself noted that □□
Plaintiff has consistently taken’an SSRI prescription since June 2018, which was increasedin

October 2020 after she reported decreased efficacy. Tr. 22, 308, 492. This information conflicts
with the ALJ reasoning but does not conflict with Plaintiff's testimony.

_ Furthermore, Plaintiff's gaps in treatment are not clear and convincing reasons for
discounting Plaintiff's testimony. Plaintiff testified that she sometimes did not leave the house
“for months.” Tr. 43. She testified that she only felt comfortable leaving her house after taking

12 - Opinion and Order

antidiarrhea medication, but “it wasn’t good for [her] physical health taking it all the time” and
she continued to have panic attacks when leaving home. Tr. 43. Plaintiff stated that her doctor
recommended she try to go out, which “was really hard” because she could not go out alone and
would “have severe panic-attacks” and “shut down and cry and... be {un]able to move wee? □□□
44, Plaintiff's testimony does not conflict with the ALJ’s noted gaps in treatment. Tr. 22.
. Plaintiff's improvement with treatment, in part, does conflict with Plaintiff s testimony.
Plaintiffs records show that Plaintiff also of uncontrollable “bouts of depression and anxiety that
come out of nowhere[,]” increased episodes of “crying, difficulty performing activities of daily
living ... fleeting suicidal thoughts . . . [and] difficulty with sleeping.” Tr. 487, 489-90.
However, from the same period, Plaintiff's testimony and counseling records show that, with
encouragement from her providers, she sought social interaction, attempted to leave home with.
the help of friends, went to a party, sold artwork to a local gallery, and moved in with and
married her significant other. Tr. 47, 465, 472, 480, 485. These records do conflict with
Plaintiff s testimony as to her anxiety being too debilitating to leave home. . □

Plaintiff's seeking treatment also conflicts with her testimony. Plaintiff testified that
has to take precautions to travel locally, would “just go to the store, the local store and go home” □
with a friend, and that she was not discussing-with her doctors seeking treatment with a different
provider in another city. Tr. 44-47. She testified that not taking precautions resulted in severe □

panic attacks, shutting down, being unable to move, overheating, and sickness. Tr. 44,47. On
independent review, however, Plaintiff's records conflict with these claims. In June and
December 2018, Plaintiffs general practitioner noted that Plaintiff was encouraged to seek
counseling for mental health in Coos Bay or North Bend, but Plaintiff denied being able to seek
this treatment because “she cannot go all the way overt” it was “just too far for her to prepare

13 - Opinion and Order

for mentally[,]” and “she cannot make it that far because of the anxiety and diarrhea.” Tr. 294, □
307. However, Plaintiff’s later records from 2019 and 2020 show that Plaintiff did travel to
North Bend and Coos Bay for reoccurring treatment. Tr. 358-69, 388-437.
In sum, the ALJ erred in reasoning that Plaintiff's medication records and gaps in
treatment provided clear and convincing reasons.to discount Plaintiff's testimony. However,
Plaintiff's improvement did provide reason clear and convincing reason for discounting □
Plaintiff's subjective symptom testimony.
3. The ALJ did not err in his duty to develop the record.
Plaintiff contends that the ALJ should have further developed the record regarding

Plaintiff's ‘mental limitations. Pl. Br. 3. The ALJ in a social security case has an independent
““duty to fully and fairly develop the record and to assure that the claimant's interests are □
considered.’” Smolen, 80 F.3d at 1288 (quoting Brown v. Heckler, 713 F.2d AAI, 443 (9th
Cir.1983)). This duty extends to the represented'as well as to the unrepresented
claimant. Id. When the claimant is unrepresented, however, the ALI must be especially diligent
in exploring all the relevant facts. Cox v. Califano, 587 F.2d 988, 991 (9th Cir.1978). Ambiguous
evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of

the evidence, triggers the ALJ's duty to “conduct an appropriate inquiry.” Smolen, 80 F.3d at
1288; Armstrong v: Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cit.1998). The ALJ may
discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting
questions to the claimant's physicians, continuing the hearing, or keeping the record open after
. the hearing to allow supplementation of the record. Tidwell v Apfel, 161 F.3d 599, 602 (9th .
Cit,1998); Smolen, 80 F.3d at 1288.

14- Opinion and Order .

Here, the Court finds that the ALJ fulfilled his duty to develop the record by taking steps
such as obtaining verbal assurance form Plaintiffs attorney at the start of the hearing that the
record was complete and, due-to Plaintiff's young age, giving Plaintiffs counsel “a great deal of
additional latitude in developing the record” at the hearing. Tr. 40. Plaintiff contends that the
ALI erred by not ordering a current psychiatric consultative examination. PJ. Br. 3. However, the
decision to order a consultative examination is left to the discretion of the ALJ. See 20 C.F.R. §
416.919 (“If we cannot get the information we need from your medical sources, we may decide □

to purchase a consultative examination.”) (emphasis added). Moreover, it is ultimately Plaintiff's
burden to prove disability, not the ALJ’s. 20 CFR. § 416.912(a). Thus, the Court finds the ALJ
fulfilled his obligation and did not commit harmful error by not ordering a consultative
examination. — □

4, Remedy .
Plaintiff requests remanding the case for further proceedings, including a current
psychiatric evaluation. Pl. Br. 8. A reviewing court has discretion to remand an action for further
proceedings or for a finding of disability and an award of benefits. See, e.g., Stone v. Heckler,
76] F.2d 530, 533 (9th Cir. 1985). Whether an action is remanded for an award of benefits or □□□□
further proceedings depends on the likely utility of additional proceedings. Harman v. Apfel, 211
F.3d 1172, 1179 (9th Cir. 2000). “Generally, when a court of appeals reverses an administrative
determination, “the proper course, except in rare circumstances, is to remand to the agency for
additional investigation or explanation.’ Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.
2004) (citing INS v. Ventura, 537 U.S. 12, 16 (2002)). Here, a remand for further proceedings is
appropriate. As discussed above, the ALI failed to properly evaluate the medical opinions in the
record. However, as the ALJ *s decision and Plaintiffs brief noted, Plaintiff’ s.last in-person

- Opinion and Order

psychiatric evaluation occurred in September’2017. All medical opinions are from 2017 and
2019, but Plaintiff's improvement is shown in counseling records from 2019 through 2020.
Therefore, further proceedings would serve the useful purpose of assessing the evidence of

Plaintiff's current functioning pertaining to her irritable bowel syndrome, anxiety, and

. agoraphobia. On remand, the ALJ must order a current psychiatric evaluation and a medical
expert to testify and reassess the medical evidence. The ALJ should also take new testimony
from a vocational expert. □

ORDER
Based on the foregoing reasons, the Commissioner’s decision is REVERSED and
REMANDED for further proceedings consistent with this opiy id □
It is so ORDERED and DATED this |

MARK D. CLARKE □□
J A United States Magistrate Judge

16- Opinion and Order. -

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396632. Public record. Not legal advice.