# DeVitto v. Commissioner Social Security Administration

> District Court, D. Oregon · March 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10397247

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 18, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10397247

## How later opinions describe it (automated extraction)

- stating remand is appropriate where “additional proceedings can remedy defects in the original administrative proceeding”
- describing step two errors as harmless if an ALJ decides it in claimant’s favor
- holding the court is “constrained to review the reasons the ALJ asserts”

## Opinion text

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

DIANE D., Ca se No. 3:23-cv-00179-AR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

Defendant.
_____________________________________

ARMISTEAD, Magistrate Judge

In this judicial review of the Commissioner’s final decision denying Social Security
benefits, plaintiff Diane D. (her last name omitted for privacy) challenges the Administrative
Law Judge’s findings that omit discussion of her urinary incontinence at step two, fail to identify
specific, clear and convincing reasons for discounting her subjective symptom testimony, and
determine that the medical opinion of Dr. Yussuf Mathai, M.D., is unpersuasive. Because the

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court concludes that the ALJ erred, the Commissioner’s decision is reversed and remanded for
further proceedings.1
ALJ’S DECISION
Plaintiff applied for Title II Disability Insurance Benefits (DIB) and Title XVI
Supplemental Security Income (SSI) on December 7, 2018, and January 28, 2019, respectively,
alleging disability beginning on August 1, 2017. (Tr. 233, 238.) Her claims were initially denied
on June 26, 2019, and again upon reconsideration on January 22, 2021. (Tr. 69, 82, 105-06, 127-
28.) Afterwards, plaintiff filed for a hearing that was held before the ALJ on November 15, 2021.
(Tr. 30.)

In denying plaintiff’s applications for DIB and SSI, the ALJ followed the five-step
sequential evaluation process.2 At step one, the ALJ determined that plaintiff meets the insured
status requirements through September 30, 2024, and that plaintiff engaged in substantial gainful
activity in 2018 and 2019, but not in 2017, 2020, and 2021. (Tr. 16-17.) At step two, the ALJ
determined that she had the following severe impairments: Fuch’s dystrophy, obesity, and mild
osteoarthritis of the left hand. (Tr. 17.) At step three, the ALJ determined that her impairments
singly or in combination did not meet or medically equal the severity of any listed impairment.

1 This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3), and all parties have
consented to jurisdiction by magistrate judge under Federal Rule of Civil Procedure 73 and 28
U.S.C. § 636(c).

2 To determine a claimant’s disability, the ALJ must apply a five-step evaluation. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ finds that a claimant is either disabled or not
disabled at any step, the ALJ does not continue to the next step. Id.; see also Parra v. Astrue, 481
F.3d 742, 746–47 (9th Cir. 2007) (discussing the five-step evaluation in detail).

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As for the ALJ’s assessment of plaintiff’s residual functional capacity (RFC),
20 C.F.R. §§ 404.1545, 416.945, the ALJ determined that plaintiff has the RFC to perform light
work with the following nonexertional limitations: occasionally climb ramps and stairs; never
climb ladders, ropes or scaffolds; frequently stoop, occasionally knee, crouch, and crawl;
frequently handle, finger, and feel with the left upper extremity; no concentrated exposure to
airborne irritants; no concentrated exposure to hazards due to vision difficulties, but is able to
avoid normal obstacles at the job such as boxes on the floor or doors being ajar. (Tr. 19.)
At step four, the ALJ determined that can perform past relevant work as a technical writer
and a clerk/typist as it is actually and generally performed (Tr. 22-23.) With RFC in hand, the

ALJ found at step five that plaintiff could perform her past relevant work as a technical writer
and clerk/typist. (Tr. 22.) Because plaintiff could perform her past relevant work, the ALJ did not
make alternative step five findings. (Tr. 23.)
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Substantial evidence is
“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation
and citation omitted). To determine whether substantial evidence exists, the court must weigh all

the evidence, whether it supports or detracts from the Commissioner’s decision. Garrison v.
Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).

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DISCUSSION
A. Step Two – Plaintiff’s Urinary Incontinence

At step two, a claimant is not disabled if the claimant does not have any medically severe
impairments. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); 20 C.F.R.
§ 404.1520(a)(4)(ii). An impairment is severe if it “significantly limits” a claimant’s “physical or
mental ability to do basic work activities.” 20 C.F.R. §§ 404.1521(a). An impairment is not
severe “when [the] medical evidence establishes only a slight abnormality or combination of
slight abnormalities which would have no more than a minimal effect on an individual’s ability
to work.” Social Security Ruling (SSR) 85-28, available at 1985 WL 56856, at *3. Even if an
impairment is not severe, the ALJ must still consider its limiting effect when formulating the
claimant’s RFC. Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014).
The ALJ found that plaintiff had multiple severe impairments at step two but did not
discuss her urinary incontinence. (Tr. 17-19.) Plaintiff argues that the ALJ erred by failing to
make any determination about her urinary incontinence – severe, non-severe, or even medically
determinable. In failing to do so, plaintiff argues, the ALJ erred at step two and compounded this
error by failing to consider the limiting effects of her urinary incontinence when formulating her
RFC. (Pl.’s Br. 3-9, ECF 11.)
The Commissioner responds that there is no error because plaintiff failed to establish that
her urinary incontinence is a medically determinable impairment. (Def’s. Br. 3, ECF 13.) The

Commissioner further asserts that even if plaintiff’s urinary incontinence is medically
determinable, the ALJ did not err because step two was decided in her favor and she has not

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established it would result in a difference outcome. (Def.’s Br. 4-5, ECF 13.) The court agrees
with the Commissioner’s second argument.3
“Step two is merely a threshold determination meant to screen out weak claims.” Buck v.
Berryhill, 869 F.3d 1040, 1048 (citing Bowen v. Yuckert, 482 U.S. 137, 146-47, 107 S.Ct. 2287,
96 L.Ed.2d 119 (1987)). Whether an impairment is designated as a severe or non-severe, the ALJ
must consider limitations and restrictions imposed by all an individual’s impairments when
formulating the RFC. SSR 96-8p. As the Commissioner correctly contends, step two was
resolved in plaintiff’s favor because the ALJ continued with the sequential analysis and any error
at step two was harmless. Buck, 869 F.3d at 1049 (describing step two errors as harmless if an

ALJ decides it in claimant’s favor).
To the extent that plaintiff contends the ALJ erred by failing to consider any functional
limitations from her urinary incontinence when formulating her RFC, the court addresses that
argument below.
B. Basis for Discounting Plaintiff’s Testimony
Determining the credibility of a claimant’s testimony regarding subjective reports of pain
or symptoms requires the ALJ to undertake a two-step process of analysis. Trevizo v. Berryhill,
871 F.3d 664, 678 (9th Cir. 2017). At the first stage, the claimant must produce objective
medical evidence of an underlying impairment that could reasonably be expected to produce the
alleged symptoms. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014);

3 The ALJ did not decide that plaintiff’s urinary incontinence was not medically
determinable, and the court will not make that determination in the first instance. Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (holding the court is “constrained to review the
reasons the ALJ asserts”).

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Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage, if there is no
affirmative evidence of malingering, the ALJ must provide specific, clear and convincing
reasons for discounting the claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 488-89
(9th Cir. 2015); 20 C.F.R. § 416.929. The specific, clear and convincing standard is “the most
demanding required in Social Security cases” and is “not an easy requirement to meet.”
Garrison, 759 F.3d at 1015; Trevizo v. Berryhill, 871 F.3d 664, 678-79 (9th Cir. 2017).
Plaintiff contends that she cannot engage in full-time, competitive employment because
of her physical health conditions, including borderline diabetes, obesity, heart murmur, tremor in
her right hand, grip issues, and her eye condition, known as Fuch’s dystrophy. (Tr. 265.) Due to

the loss of grip strength in her left hand and Fuch’s dystrophy, plaintiff alleges she cannot use
buttons on clothes unless they are large, cannot tie shoelaces, cannot use nail clippers, and
sometimes has difficulty seeing. (Tr. 276, 278.) Plaintiff also alleges that she has limited
mobility due to sore knees and that she is unable to climb stairs. (Tr. 276.) She also alleges that
she is unable to walk for more than five to 10 minutes unless she has something to lean on, such
as a cart while grocery shopping; she is unable to stand for more than 10 minutes; she has some
degree of carpal tunnel; and that doing laundry and ironing take between four and six hours each.
(Tr. 276, 279, 281, 283.) She is not taking any medication to manage her conditions. (Tr. 282.)
At the hearing, plaintiff testified that she is better suited for part-time work because she
can only “handle the keyboard for so long, and then I need a break from it.” (Tr. 40.) She said

her knees hurt whenever she is sitting, standing, or trying to move around, making things
uncomfortable. (Tr. 40.) She further testified to having tremors in both hands, more so on the left
than right, that her left hand has decreased sensation, and that she cannot pick up a paper clip,

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use buttons on her clothing, or tie shoelaces. (Tr. 41-42.) She also explained that the tendons in
her thumbs get overworked and build up callouses, which were successfully treated with
cortisone shots. (Tr. 41.)
When asked to elaborate about her hand issues, she testified that the thumb, index, and
middle fingers of her left hand are numb, and she can never really feel them. (Tr. 43.) She
explained that she can continuously use her hands for 45 minutes to one hour before needing to
take a break and walk around before returning. (Tr. 47.) When asked about her vision, plaintiff
stated that after her cornea surgery, she still wears glasses, but her vision is “all good.” (Tr. 45.)
The ALJ discounted plaintiff’s subjective symptom testimony because her statements

were inconsistent with her medical records, and because she improved with treatment.
1. Treatment
A claimant’s favorable response to treatment can undermine their subjective symptom
testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). In assessing a claimant’s
subjective symptom testimony, an ALJ properly may rely on a lack of treatment, or an
“unexplained or inadequately explained failure to seek treatment or to follow a prescribed course
of treatment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (internal quotation marks
and citation omitted).
The ALJ discounted plaintiff’s subjective symptom testimony because her Fuch’s
dystrophy was resolved with treatment, and because she sought only minimal treatment for her

other reported impairments. (Tr. 20.) As support for this conclusion, the ALJ pointed to
plaintiff’s records from October 2019, when her Fuch’s dystrophy began affecting her daily life;
reports from May and September 2020, describing hersurgery on both eyes; and records from

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July 2021, in which plaintiff reported her vision was stable and had no complaints. (Tr. 20, citing
Tr. 461, 492, 529, 626.) Plaintiff also complained of knee pain in her testimony and in her
function report, but as the ALJ noted, she never sought treatment. (Tr. 21.) Plaintiff further
complained of weakness and tremors in her hands, more on the left, but the weakness could not
be reproduced with repetitive activity, with only mild tremors were noted. (Tr. 21, citing Tr. 550-
51.) The ALJ also discussed that plaintiff hed reduced grip strength in both hands, yet she was
able to grasp, shake hands, write, and pick up a coin and cup with her right hand, with some
difficulty with her left, and that sensory function was intact. (Tr. 596.)
The ALJ’s findings are supported by substantial evidence, are a reasonable interpretation

of the record, and therefore, provide a clear and convincing reason for discounting plaintiff’s
subjective symptom testimony.
2. Inconsistent Statements
Inconsistency with the medical record can provide a clear and convincing basis for
discounting a claimant’s symptoms, so long as it is not the sole reason for doing so. Bray v.
Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
The ALJ discounted plaintiff’s subjective symptom testimony because her reported
extreme physical limitations, including hand weakness, inability to stand for more than five
minutes, and inability to navigate stairs and curbs, are inconsistent with the medical record. .
(Tr. 20-21.) According to plaintiff’s function report and hearing testimony, she is unable to use

buttons on her clothes, unable to tie shoelaces, unable to use a keyboard for more than 45
minutes to one hour at a time, cannot pick up a paperclip, cannot walk or stand for more than

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five to ten minutes unless she can lean on something, and is unable to climb stairs. (Tr. 40-43,
47, 276, 278, 281, 283.)
The ALJ identified contradictory instances between plaintiff’s testimony and her medical
records. Specifically, the ALJ found that plaintiff’s medical records from June 2019
demonstrated she was able to reach, hold, grasp, grip, rotate, pinch, and manipulate large and
small objects with either hand without tremor or spasticity, her gait was normal, and no assistive
devices were used or needed. (Tr. 21, citing Tr 452.) In February 2020, plaintiff stated she could
walk and perform all activities of daily living, was taking no medication, had no shortness of
breath, only complaining of urinary incontinence. (Tr. 479.) In December 2020, plaintiff

continued complaining of left-hand weakness and tremors but no knee pain or mobility issues.
(Tr. 550.) While mild tremors were noted, there was no noticeable weakness and plaintiff
declined to have her hand fully evaluated until after she obtained a disability determination. (Tr.
550-51.) In late December 2020, plaintiff underwent a neurological exam, where she
demonstrated normal 5/5 strength in her upper and lower extremities with decreased grip
strength in her right and left hands, 4/5 and 3/5 respectively. (Tr. 596.) Despite the decreased
grip strength, repetitive activity did not cause significant, reproducible muscle weakness, and she
was able to grasp, shake hands, write, pick up a coin and a cup, with only some difficulty in her
left hand. (Tr. 21, citing Tr. 596.) Plaintiff was also noted as having a slow, waddling gait, and
stabilized herself by reaching out for the walls and furniture. (Tr. 597.)

Based on the above, the ALJ identified specific instances where plaintiff’s allegations of
significant limitations are undermined by the medical evidence in the record. Because the ALJ’s

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findings are supported by substantial evidence and are a reasonable interpretation of the record,
the ALJ did not err in discounting plaintiff’s testimony.
C. Evaluating the Medical Opinion of Yusuf Mathai, M.D.
For disability claims filed on or after March 27, 2017, new regulations for evaluation
medical opinion evidence apply. Revisions to Rules Regarding the Evaluation of Medical
Opinion Evidence (Revisions to Rules), 2017 WL 168819, 82 Fed. Reg. 5844, at *5867-68 (Jan
18, 2017). Under those revised regulations, the ALJ no longer “weighs” medical opinions but
instead determines which are most “persuasive.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The
new regulations eliminate the hierarchy of medical opinions and state that the agency does not

defer to any particular medical opinions, even those from treating sources. Id.; see also Woods v.
Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (“The revised social security regulations are clearly
irreconcilable with our caselaw according special deference to the opinions of treating and
examining physicians on account of their relationship with the claimant.”). Under the new
regulations, the ALJ primarily considers the “supportability” and “consistency” of the opinions
in determining whether an opinion is persuasive. 20 C.F.R. §§ 404.1520c(c), 416.920c(c).
Supportability is determined by whether the medical source presents explanations and objective
medical evidence to support his or her opinions. Id. §§ 404.1520c(c)(1), 416.920c(c)(1).
Consistency is determined by how consistent the opinion is with evidence from other medical
and nonmedical sources. Id. §§ 404.1520c(c)(2), 416.920c(c)(2).

An ALJ also may consider a medical source’s relationship with the claimant by looking
at factors such as the length, purpose, or extent of the treatment relationship, the frequency of the
claimant’s examinations, and whether there is an examining relationship. Id. §§ 404.1520c(c)(3),

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416.920c(c)(3). An ALJ is not, however, required to explain how they considered those
secondary medical factors unless they find that two or more medical opinions about the same
issue are equally well-supported and consistent with the record but not identical. Id. §§
404.1520c(b)(2)-(3), 416.920c(b)(2)-(3).
The regulations require ALJs to “articulate . . . how persuasive [they] find all of the
medical opinions” and “explain how [they] considered the supportability and consistency
factors.” Id. §§ 404.1520c(c)(b), 416.920c(b). The court must, moreover, continue to consider
whether the ALJ’s analysis has the support of substantial evidence. See 42 U.S.C. § 405(g);
Woods, 32 F.4th at 792 (“Even under the new regulations, an ALJ cannot reject an examining or

treating doctor’s opinion as unsupported or inconsistent without providing an explanation
supported by substantial evidence.”).4 Id.
In assessing plaintiff’s RFC, the ALJ found unpersuasive the medical opinion of Dr.
Mathai, plaintiff’s consultative examiner, because his assessment was inconsistent with
plaintiff’s other treatment records and her activities of daily living. (Tr. 22.)
Plaintiff asserts that the ALJ improperly discredited Dr. Mathai’s opinion due to a lack of
treatment records supporting the ALJ’s opinion, improperly using plaintiff’s activities of daily
living, and because Dr. Mathai’s opinion is supported by his own observations during the exam.
(Pl’s. Br. 11-13, ECF 11.)5 The Commissioner argues that not only does substantial evidence

4 Under the new framework, the ALJ is no longer required to “provide specific and
legitimate reasons for rejecting an examining doctor’s opinion;” rather, the ALJ’s reasons must
“simply be supported by substantial evidence.” Woods, 32 F.4th at 787.

5 Plaintiff also argued that medical records reflecting an examination done by Dr. Ellison
were too remote in time. (Pl.’s Br. 13, ECF 11.) The court declines to acknowledge the argument
for two reasons: (1) the argument is undeveloped; and (2) Dr. Ellison’s evaluation took place

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cited by the ALJ support the ALJ’s finding, but also that plaintiff’s activities of daily living are
inconsistent with the limitations described by Dr. Mathai. (Def.’s Br. 6-7, ECF 13.)
The court agrees with the Commissioner: the ALJ’s findings are supported by substantial
evidence and are sufficient explanations for discounting Dr. Mathai’s opinion.
Dr. Mathai met with plaintiff for a consultative examination on December 26, 2020. (Tr.
594.) According to Dr. Mathai, plaintiff had no limitations in sitting, could only stand
occasionally, could only walk occasionally due to claimant’s self-report, could only occasionally
lift and carry 10 pounds with both hands together due to knee pain and left-hand weakness, and
could occasionally bend and stoop due to instability in balance, bilateral knee pain, and body

habitus. (Tr. 599-600.) The ALJ found that Dr. Mathai’s opinion is inconsistent with plaintiff’s
other treatment records. (Tr. 22.) The ALJ also noted that plaintiff endorsed no difficulties in
attending to her activities of daily living, including using a phone/computer, cooking, doing
laundry, washing dishes, driving, shopping, vacuuming, and sweeping, and that those activities
were inconsistent with her presentation at Dr. Mathai’s evaluation. (Tr. 22, citing Tr. 620.)
The ALJ’s findings and rationale are supported by substantial evidence in the record. The
ALJ’s cited records showing that the upper extremity weakness observed by Dr. Mathai was
unobservable just two weeks prior, and that she did not want a proper work up until after she saw
Dr. Mathai. (Tr. 550.) Other records prior to Dr. Mathai’s evaluation directly contradict Dr.
Mathai’s findings, showing that plaintiff was able to reach, hold, grasp, grip, rotate, pinch, and

manipulate large and small objects with either hand without tremor or spasticity, and that her
strength and muscle bulk and tone were normal throughout with no sensory loss. (Tr. 450, 452.)

during the relevant period, making it relevant medical evidence.

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That same record also indicated plaintiff was capable of lifting and carrying up to 20 pounds.
(Tr. 452.) Dr. Mathai indicated that although there was some diminished grip strength, repetitive
activity did not cause significant, reproducible muscle weakness. (Tr. 596.) As the ALJ noted,
records reveal that plaintiff did not complain of knee pain or display significant mobility issues
until meeting with Dr. Mathai, where she that her knee pain had been getting worse for at least a
year, yet she failed to discuss it with her primary care physician just two weeks earlier. (Tr. 22,
citing Tr. 594.) The only other record evaluating plaintiff’s mobility and knee pain came from an
evaluation done on June 8, 2019, where plaintiff made no mention of any pain or gait issues, and
had a normal gait upon examination, Romberg and tandem walking were steady, and she was

unable to walk on heels or toes. (Tr. 452.) Although Dr. Mathai observed that plaintiff has an
antalgic gait, favors her right leg, drags her left leg, that she has a slow waddling gait, and did
not need an assistive device, the ALJ limited plaintiff to less than occasional standing and
walking, indicating that plaintiff is able to do more than her reported inability to stand or walk
for five to ten minutes. (Tr. 597, 599-60.)
Given the ALJ’s cited reasoning and the sparse evidence present in plaintiff’s treatment
records, the ALJ’s determination that Dr. Mathai’s medical opinion is unpersuasive due to its
inconsistency with the other medical evidence in the record is supported by substantial
evidence.6 Therefore, the ALJ reasonably concluded Dr. Mathai’s assessment was unpersuasive;

6 The ALJ’s reasoning regarding plaintiff’s activities of daily living is unsupported by
substantial evidence. The ALJ does not provide any explanation as to why her activities of daily
living would discount Dr. Mathai’s medical opinion. However, this error is harmless because the
ALJ’s reasoning that Dr. Mathai’s medical opinion was inconsistent with other medical records
is a reasonable interpretation of the record.

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the ALJ did not err in evaluating Dr. Mathai’s opinion.
D. Plaintiff’s RFC
In determining the Plaintiff’s RFC, an ALJ must consider all relevant evidence in the
record. See SSR 96-8p; 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Plaintiff testified that she
has had trouble with incontinence for the past four or five years to the point that she needs to be
close to a restroom. (Tr. 53.) Plaintiff’s records also indicate that she repeatedly complained of
incontinence, wears pads to help with her condition, and that a diagnosis of polyuria was made
based on her complaints. (Tr. 451, 478, 549–51, 553, 594.) The ALJ did not, however, discuss
plaintiff’s complaints of urinary incontinence at any point in the decision.

Plaintiff argues that the ALJ erred by not taking her urinary incontinence into account
when formulating her RFC. (Pl.’s Br. 3-9, ECF 11.) Needing to be close to a restroom, needing
constant restroom breaks, and dealing with any accidents that occur when she is unable to reach
a restroom in time, in plaintiff’s view, would necessarily result in a different RFC. (Pl’.s Br. 7-8.)
The Commissioner argues that urinary incontinence is not a medically determinable impairment
because impairments cannot be established by subjective complaints alone, and even if her
urinary incontinence were an MDI, plaintiff has not shown such a determination would result in
a different RFC. (Def’s. Br. 3-5.) The court agrees with plaintiff here.
Urinary incontinence may result in a different RFC if plaintiff required close proximity to
a restroom and if frequent restroom breaks would increase the amount of time plaintiff was off-

task in an eight-hour workday. Even if Commissioner’s interpretation is reasonable, the ALJ did
not provide this rationale within the decision, and the court cannot consider this post hoc
rationalization in the first instance. See Bray, 554 F.3d at 1225; see also Ferguson v. O’Malley,

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No. 21-35412, ___ F.4th ___, (9th Cir. Mar. 14, 2024) (holding ALJ erred by failing to identify
specific evidence that discounted claimant’s allegations about his headaches, and rejecting
Commissioner’s argument, asserted on appeal in the first instance, that claimant failed to
establish that his headaches were a medically determinable impairment).
As discussed above, the ALJ does not explain why plaintiff’s urinary incontinence
functional limitations were not included in plaintiff’s RFC, and her urinary incontinence was not
taken into account at any point in the ALJ’s evaluation. Although an ALJ is not required to
discuss all evidence in the medical record, an ALJ “must explain why significant probative
evidence has been rejected.” Kilpatrick v. Kijakazi, 35 F.4th 1187, 1193 (9th Cir. 2022) (quoting

Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)). The limitations with
urinary incontinence may result in a different RFC and no hypothetical including those
limitations was provided to the vocational expert. Accordingly, the vocational expert’s testimony
regarding plaintiff’s ability to perform past relevant work is incomplete, and the ALJ has erred.
See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)
In sum, the ALJ did not err in their step two evaluation, discounting the plaintiff’s
subjective symptom testimony, and Dr. Mathai’s medical opinion. However, the ALJ erred in
evaluating the plaintiff’s RFC by not discussing her urinary incontinence and providing reasons
for discounting it that are backed by substantial evidence, or including it in the RFC.
E. Remedy

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., Burrell v. Colvin, 775 F.3d 1133, 1141
(9th Cir. 2014). Whether an action is remanded for an award of benefits or for further

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proceedings depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d
1172, 1179 (9th Cir. 2000). In determining whether an award of benefits is warranted, the court
conducts the “three-part credit-as-true” analysis. Garrison, 759 F.3d at 1020. Under that
analysis, the court considers whether: (1) the ALJ has failed to provide legally sufficient reasons
for rejecting evidence; (2) the record has been fully developed and further proceedings would
serve no useful purpose; and (3) if the improperly discredited evidence were credited as true, the
ALJ would be required to find the claimant disabled on remand. Dominguez v. Colvin, 808 F.3d
403, 407 (9th Cir. 2015). Even if all the requisites are met, however, the court may still remand
for further proceedings “when the record as a whole creates serious doubt as to whether the

claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021.
Plaintiff argues that she merits an award for an immediate payment of benefits or further
proceedings because the ALJ failed to incorporate plaintiff’s urinary incontinence into her RFC.
Remand for further proceedings is the appropriate remedy here. As discussed above, the ALJ
erred only with respect to a failure to incorporate plaintiff’s urinary incontinence limitations into
the resulting RFC. As such, the issue of plaintiff’s RFC remains unresolved. Taylor v. Berryhill,
729 F. App’x 906, 907 (9th Cir. 2018) (“Remand for further proceedings is proper because
outstanding issues in the record remain that must be resolved before a determination of disability
can be made.) Such an error is “not inconsequential to the ultimate nondisability determination.”
See Treichler v. Comm’n Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014).

On remand, the ALJ shall reevaluate plaintiff’s urinary incontinence and either
incorporate that testimony and its limitations into the RFC or provide adequate reasoning as to
why those limitations are rejected. As warranted, the ALJ will reevaluate plaintiff’s RFC and

Page 16 – OPINION AND ORDER
obtain supplemental VE evidence if necessary. Garrison, 759 F.3d at 1019 (stating remand is
appropriate where “additional proceedings can remedy defects in the original administrative
proceeding”).
CONCLUSION
For the above reasons, the court AFFIRMS in part and REVERSES and REMANDS in
part the Commissioner’s final decision for further proceedings.
ORDERED on March 18, 2024. jl

\| JEFF NRMISTEAD
United States MaB8istrate Judge

Page 17 —- OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397247. Public record. Not legal advice.