Gatti v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TINA G.,1 Case No. 6:23-cv-00396-SB

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

BECKERMAN, U.S. Magistrate Judge.

Tina G. (“Plaintiff”) brings this appeal challenging the Commissioner of Social

Security’s (“Commissioner”) denial of her applications for Disability Insurance Benefits (“DIB”)

and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act.

The Court has jurisdiction over this appeal under 42 U.S.C. § 405(g), and the parties have

consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). For the

reasons explained below, the Court reverses the Commissioner’s decision and remands for the

calculation and payment of benefits.

1 In the interest of privacy, this opinion uses only the first name and the initial of the last

name of the non-governmental party.

STANDARD OF REVIEW

The district court may set aside a denial of benefits only if the Commissioner’s findings

are “not supported by substantial evidence or based on legal error.” Bray v. Comm’r of Soc. Sec.

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880,

882 (9th Cir. 2006)). Substantial evidence is defined as “more than a mere scintilla [of evidence]

but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

1995)).

The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a

specific quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.

2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court

must consider the entire record, weighing the evidence that both supports and detracts from the

Commissioner’s conclusions. Id. Where the record as a whole may support either the grant or

denial of Social Security benefits, the district court “may not substitute [its] judgment for the

[Commissioner’s].” Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152

(9th Cir. 2007)).

BACKGROUND

I. PLAINTIFF’S APPLICATIONS

Plaintiff was born in April 1956, making her sixty-one years old on August 11, 2017, her

alleged disability onset date. (Tr. 13, 19, 157, 518.) Plaintiff alleges disability due to

degenerative disc disease in her cervical spine, osteoarthritis in her bilateral knees, right hip

arthroplasty with subsequent hardware failure, left femur fracture, obesity, carpal tunnel

syndrome, stroke, and bipolar disorder. (Id. at 174-75, 971, 1334.)

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The Commissioner denied Plaintiff’s applications initially and upon reconsideration, and

on April 24, 2018, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).

(Id. at 200.) Plaintiff represented herself without an attorney and testified at an administrative

hearing on March 25, 2020. (Id. at 28-60.) On August 5, 2020, the ALJ issued a written decision

denying Plaintiff’s applications. (Id. at 157-66.) Plaintiff requested review from the Appeals

Council, and on January 15, 2021, the Appeals Council remanded the case for further

consideration of Plaintiff’s various neurological impairments, carpal tunnel syndrome, and

residual functional capacity (“RFC”) based on the entirety of the record. (Id. at 13, 174-75.)

On February 3, 2022, a second hearing took place before the same ALJ. (Id. at 3513-56.)

On March 2, 2022, the ALJ found that Plaintiff was not disabled and could perform her past

relevant work as a receptionist. (Id. at 13-19.) On January 20, 2023, the ALJ’s decision became

the final decision of the Commissioner when the Appeals Council denied review. (Id. at 1-6.)

Plaintiff now seeks judicial review of that decision.

II. THE SEQUENTIAL PROCESS

A claimant is considered 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 v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five

steps are: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the

claimant has a severe impairment; (3) whether the impairment meets or equals a listed

impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the

claimant can perform other work that exists in significant numbers in the national economy. Id.

at 724-25.

The claimant bears the burden of proof for the first four steps. See Bustamante v.

Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any

of those steps, the claimant is not disabled. See id. at 954. The Commissioner bears the burden of

proof at step five, where the Commissioner must show the claimant can perform other work that

exists in significant numbers in the national economy, “taking into consideration the claimant’s

residual functional capacity, age, education, and work experience.” Tackett, 180 F.3d at 1100. If

the Commissioner fails to meet this burden, the claimant is disabled. See Bustamante, 262 F.3d

at 954.

III. THE ALJ’S DECISION

The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is

disabled. (Tr. 13-19.) At step one, the ALJ determined that Plaintiff had not engaged in

substantial gainful activity since August 11, 2017, the alleged onset date. (Id. at 15.) At step two,

the ALJ found that Plaintiff suffered from the following severe, medically determinable

impairments: “degenerative disc disease of the cervical spine, obesity, osteoarthritis of the

bilateral knees, and status post right hip arthroplasty.” (Id. at 16.)

At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or

medically equals a listed impairment. (Id.) The ALJ then concluded that Plaintiff had the RFC to

perform “a range of sedentary work[.]” (Id. at 17.) The ALJ found that she could “occasionally

reach overhead bilaterally” and “occasionally reach forward with full arm extension bilaterally,

but she may reach forward at hinged elbow without limitation.” (Id.) Finally, the ALJ determined

that Plaintiff can “occasionally reach laterally with both upper extremities.” (Id.)

///

At step four, the ALJ concluded that Plaintiff could perform her past relevant work as a

receptionist. (Id. at 19.) The ALJ determined that Plaintiff was not disabled because “[i]n

comparing [Plaintiff’s] residual functional capacity with the physical and mental demands of this

work, the undersigned finds that [Plaintiff] is able to perform it as generally performed,

according to the Dictionary of Occupational Titles.” (Id.)

DISCUSSION

In this appeal, Plaintiff argues that the ALJ erred by failing to (1) provide clear and

convincing reasons for discounting Plaintiff’s subjective symptom testimony; (2) give legally

sufficient reasons to discredit the lay witness testimony of Plaintiff’s daughter; and (3) resolve

conflicts with Plaintiff’s past relevant work and the Dictionary of Occupational Titles (“DOT”)

requirements. (See generally Pl.’s Opening Br. (“Pl.’s Br.”), ECF No. 10.)

As explained below, the Court concludes that the Commissioner’s decision is based on

harmful legal error and not supported by substantial evidence. The Court agrees that the ALJ

committed reversible error in discounting Plaintiff’s testimony without specific, clear, and

convincing reasons supported by substantial evidence. The Court further concludes that Plaintiff

satisfies the credit-as-true standard, and the Court does not have serious doubt about whether

Plaintiff is disabled. Accordingly, the Court remands Plaintiff’s case for an award of benefits.

I. PLAINTIFF’S SYMPTOM TESTIMONY

A. Applicable Law

The Ninth Circuit has “established a two-step analysis for determining the extent to

which a claimant’s symptom testimony must be credited[.]” Trevizo v. Berryhill, 871 F.3d 664,

678 (9th Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective

medical evidence of an underlying impairment ‘which could reasonably be expected to produce

the pain or other symptoms alleged.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)

(quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). Second, “[i]f the claimant meets

the first test and there is no evidence of malingering, the ALJ can only reject the claimant’s

testimony about the severity of the symptoms if she gives specific, clear and convincing reasons

for the rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (simplified).

Under Ninth Circuit case law, clear and convincing reasons for rejecting a claimant’s

subjective symptom testimony “include conflicting medical evidence, effective medical

treatment, medical noncompliance, inconsistencies in the claimant’s testimony or between her

testimony and her conduct, daily activities inconsistent with the alleged symptoms, and

testimony from physicians and third parties about the nature, severity and effect of the symptoms

complained of.” Bowers v. Astrue, No. 11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25,

2012) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008), Lingenfelter v. Astrue,

504 F.3d 1028, 1040 (9th Cir. 2007), and Light v. Comm’r Soc. Sec. Admin., 119 F.3d 789, 792

(9th Cir. 1997)).

B. Analysis

There is no evidence of malingering here, and the ALJ determined that Plaintiff provided

objective medical evidence of underlying impairments that might reasonably produce Plaintiff’s

alleged symptoms. (Tr. 18.) The ALJ was therefore required to specify which testimony the ALJ

found not credible and provide clear and convincing reasons for discounting Plaintiff’s symptom

testimony. See Ghanim, 763 F.3d at 1163.

1. Plaintiff’s Symptom Testimony

Plaintiff testified at the 2020 hearing that her “bone density is very bad” and because of

her stroke and hip issues she has fallen “four to six times[,]” causing her to go to the hospital.

(Tr. 36.) She further testified that her “back and neck get frozen” when “she is sitting more than

[ten] to [fifteen] minutes in front of a computer.” (Id.) She testified that sitting causes her pain

and hurts her back and legs, but especially her neck and arms. (Id. at 35.) In her last job, Plaintiff

was placed on “short-term disability” and missed several workdays because she had to leave

work early due to the pain in her neck, back, legs, and arms. (Id. at 43, 57.)

At her 2022 hearing, Plaintiff testified that her back pain is chronic and “hinders [her]

from doing a lot throughout the day.” (Id. at 3535.) She is unable to “completely function

normally” and in turn, she “secludes [herself] in her home.” (Id.) Plaintiff testified that after

going to the emergency department twice due to sharp and radiating pain in her right hip, her

providers sent her home with medication and said “everything was fine.” (Id. at 3536.) It was not

until her third visit to the emergency department that her providers did an MRI and found her

entire right hip was broken, warranting a complete replacement. (Id. at 3537.) Plaintiff testified

that she “do[es] a lot of sitting with [her] legs propped up” and uses a cane continually because

her hip is still “healing” even though it had been “almost a year” after her hip replacement

surgery. (Id. at 3535.)

Plaintiff stated in her function report that “[t]yping on a keyboard and looking at a

computer screen caus[e] severe neck[,] upper back[,] shoulder, arms[,] and hand pain” and that

the most she can do on a “good day is about [fifteen] to [twenty] min[utes].” (Tr. 162-63, 466.)

She also testified that although she could not sit for any longer than ten minutes in a normal seat,

she could sit in a cushioned chair with neck support for about one hour. (Id.)

2. The ALJ’s Findings

In the ALJ’s 2020 decision, he discounted Plaintiff’s testimony based on the “limited

treatment record with few objective findings[.]” (Id. at 163.) The ALJ pointed to Plaintiff’s

activities of daily living to discount her testimony, finding that “[Plaintiff] was able to provide

lengthy and neat handwritten responses on her function report” and could participate in daily

activities involving pet care, self care, reading, and simple meal preparation. (Id. at 163.)

Nevertheless, the ALJ noted that “[o]n examinations, crepitus [a popping sound in a joint], some

reduced range of motion of the knees, and a slowed gait do support the limitation of sedentary

work.” (Id.) In the 2022 decision, the ALJ did not specifically address Plaintiff’s activities of

daily living but instead cross-referenced the 2020 decision. (Id. at 18.)

In the 2022 decision, the ALJ incorporated the 2020 opinion with respect to Plaintiff’s

“disabling neck and joint pain,” and further noted that Plaintiff continues to experience

debilitating symptoms and that she remains home in seclusion where she must prop up her legs

to mitigate discomfort in her knees and hip. (Id., “She noted that pain injections have provided

little relief of her symptoms.”)

The ALJ focused the 2022 opinion on newly submitted evidence following the Appeals

Council remand. The ALJ noted a 2019 “left femur fracture” and a 2021 right hip arthroplasty

“with subsequent hardware failure” but found that “[w]hile these events caused considerable

discomfort and temporary mobility issues—they did not persist at a disabling level for a

continuous 12-month period.” (Id. at 18.) The ALJ also cited treatment notes from April 2021

demonstrating normal “movement, coordination, and gait.” (Id. at 19.)

The ALJ concluded that Plaintiff’s “recurrent neck and knee pain, along with lingering

discomfort following her recent hip replacement, justify a restriction to sedentary tasks.” (Id.)

3. Activities of Daily Living

Plaintiff argues that the ALJ erred by discounting Plaintiff’s symptom testimony as

inconsistent with her activities of daily living. (Pl.’s Br. at 9-10.) The Court agrees.

a. Applicable Law

An ALJ may discount a claimant’s symptom testimony based on activities that are

incompatible with the claimant’s testimony regarding the severity of her symptoms. See Burrell

v. Colvin, 775 F.3d 1133, 1137-38 (9th Cir. 2014) (explaining that “[i]nconsistencies between a

claimant’s testimony and the claimant’s reported activities provide a valid reason for an adverse

credibility determination” (citing Light, 119 F.3d at 792)); Garrison, 759 F.3d at 1016 (stating

that a claimant’s activities have “bearing on [the claimant’s] credibility” if the reported “level of

activity” is “inconsistent with [the claimant’s] claimed limitations” (quoting Reddick v. Chater,

157 F.3d 715, 722 (9th Cir. 1998))). Notably, however, there must be a meaningful inconsistency

between the claimant’s daily activities and the symptom testimony. See Harris v. Kijakazi, No.

21-35136, 2022 WL 1262011, at *1 (9th Cir. Apr. 28, 2022) (holding that the ALJ committed

harmful error in discounting the plaintiff’s symptom testimony and explaining that the plaintiff’s

“limited daily activities were not meaningfully inconsistent with her symptom testimony” (citing

Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989))).

b. Disposition

The Court finds that the ALJ erred by discounting Plaintiff’s symptom testimony as

inconsistent with her activities of daily living. (See Pl.’s Br. at 9-10.)

In the 2020 decision, the ALJ found that “[Plaintiff] was able to provide lengthy and neat

handwritten responses on her function report” and could participate in daily activities involving

pet care, self care, reading, and simple meal preparation. (Tr. 162.) With respect to the former,

the ALJ did not address the amount of time Plaintiff may have spent filling out her report, and

Plaintiff points out that she took more than an hour to complete the report. (Tr. 163, 466.) She

also did so within the confines of her own home, where she was able to “l[ie] down on [a] sofa or

bed often to relieve neck and back pain.” (Id.) Thus, there was no meaningful inconsistency

between Plaintiff’s legible handwriting and her testimony about her inability to sit for more than

15-20 minutes, need to lie down and prop her legs to mitigate discomfort, and chronic pain.

With respect to Plaintiff’s ability to perform self care, take care of a pet, read, and

prepare simple meals, these daily activities are not inconsistent with Plaintiff’s testimony about

her symptoms and limitations, nor do they easily transfer to a workplace environment. See

Garrison, 759 F.3d at 1016 (“Many home activities are not easily transferable to what may be

the more grueling environment of the workplace, where it might be impossible to periodically

rest or take medication.” (quoting Fair, 885 F.2d at 603)). That Plaintiff is able to complete

limited daily activities with unlimited breaks, position changes, and the ability to move around or

lie down does not demonstrate an ability to meet typical workplace expectations.2 See Webb v.

Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) (“The mere fact that a plaintiff has carried on

certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise,

does not in any way detract from [her] credibility as to [her] overall disability. One does not need

to be utterly incapacitated in order to be disabled.” (quoting Vertigan v. Halter, 260 F.3d 1044,

1050 (9th Cir. 2001))); see also Nicole N.-M. v. Comm’r Soc. Sec. Admin., 649 F. Supp. 3d 1025,

1035-36 (D. Or. 2022) (“[T]he majority of the activities in which Plaintiff engaged—performing

adequate self-care, preparing simple meals, driving a car, paying her bills, handling her finances,

performing household chores, and going grocery-shopping—are limited basic daily activities that

are legally insufficient to support the ALJ’s conclusion.” (citing Webb, 433 F.3d at 688));

Kimberly T. v. Comm’r Soc. Sec. Admin., No. 3:19-cv-01013-HZ, 2021 WL 2554621, at *4 (D.

Or. June 22, 2021) (“The ALJ did not find, however, that Plaintiff’s reported activities indicated

transferrable work skills. The ALJ also failed to specify how Plaintiff’s reported activities

contradict her symptom testimony.”).

For these reasons, the Court finds that Plaintiff’s activities of daily living were not a clear

and convincing reason to discredit her testimony.

2 Contrary to the ALJ’s assertion that Plaintiff “did not elaborate on limitations”

regarding her exertional or postural activities, she did so in her function report, as discussed

above. The ALJ did not address how these limitations would transfer to full-time employment.

4. Objective Medical Evidence

Plaintiff also argues that the ALJ erred by discounting Plaintiff’s symptom testimony as

inconsistent with the objective medical evidence, and that objective evidence alone is not a clear

and convincing reason to discount Plaintiff’s symptom testimony. (Pl.’s Br. at 9.) The Court

agrees.

As an initial matter, having found that the ALJ’s only other reason for discounting

Plaintiff’s testimony was legally insufficient, the lack of supporting medical evidence cannot be

the only reason to discount Plaintiff’s symptom testimony. See Christa W. v. Kijakazi, No. 1:22-

cv-01293-SB, 2023 WL 6972455, at *12 (D. Or. Oct. 23, 2023) (“[T]he lack of supporting or

inconsistent objective medical evidence cannot provide the sole basis for discounting a

claimant’s testimony.” (citing McClaren v. Saul, 812 F. App’x 500, 501 (9th Cir. 2020), Valdez

v. Berryhill, 746 F. App’x 676, 677 (9th Cir. 2018), and Taylor v. Berryhill, 720 F. App’x 906,

907 (9th Cir. 2018)); Ortiz v. Berryhill, No. 2:17-cv-06243-JDE, 2018 WL 3655411, at *4 (C.D.

Cal. July 31, 2018) (reversing and remanding where “[t]he only articulated reason for finding

Plaintiff only partially credible was ‘the medical records do not support the alleged severity of

his symptoms’”). For this reason, the Court concludes that the ALJ committed harmful error in

discounting Plaintiff’s testimony.

In any event, the Court further finds that the ALJ erred in discounting Plaintiff’s

testimony in light of few objective findings, specifically with respect to her chronic pain, which

limited her ability to sit for long periods of time and caused her to miss work. The ALJ found

that Plaintiff’s “recurrent neck and knee pain, along with lingering discomfort following her

recent hip replacement, justify a restriction to sedentary tasks.” (Tr. 19.) Thus, the ALJ

acknowledged that Plaintiff had recurring neck and knee pain, along with at least “discomfort”

following her hip replacements, but he discounted without explanation Plaintiff’s testimony that

such pain prevented her from sitting for more than 15-20 minutes and from working a full day.

The ALJ relied on his 2020 opinion with respect to discounting Plaintiff’s “allegations of

disabling neck and joint pain” (id. at 18), but that opinion included only vague conclusions that

“the record . . . does not evidence limitations in sitting” and “the treatment record does not

support the claimant’s alleged degree of difficulty with use of the upper extremities or inability

to sit for extended periods.” (Tr. 164.) Neither the 2020 nor 2022 opinion cited any specific

medical records or opinions that contradicted Plaintiff’s allegations that her chronic pain limited

her ability to sit for extended periods of time or work a full day. On the contrary, the medical

records reflect that Plaintiff complained of neck, back, knee, shoulder, and joint pain consistently

from 2017 to 2022. (See Pl.’s Br. at 7-9, citing several examples.) As a result, the Court finds

that the ALJ failed to cite specific, clear, and convincing reasons to discount the severity of

Plaintiff’s symptom testimony. See, e.g., Holcomb v. Saul, 832 F. App’x 505, 506 (9th Cir. 2020)

(“[T]he ALJ discussed relevant medical evidence but failed to link [the claimant’s] symptom

testimony to specific medical records and explain why those records contradicted [the

claimant’s] symptom testimony”); Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015)

(“Here, the ALJ found generally that the claimant’s testimony was not credible, but failed to

identify which testimony she found not credible and why. We conclude, therefore, that the ALJ

committed legal error.”); Smolen, 80 F.3d at 1284 (“The ALJ must state specifically which

symptom testimony is not credible and what facts in the record lead to that conclusion.”)

(citation omitted); Patricia E.G. v. Comm’r Soc. Sec. Admin., No. 1:19-cv-01811-CL, 2021 WL

2444159, at *4 (D. Or. June 15, 2021) (reversing and remanding where “the ALJ stated that he

considered Plaintiff’s testimony regarding pain and discomfort, but failed to identify what

testimony he found inconsistent with the record”).

Of particular note, the ALJ acknowledged that Plaintiff testified in both 2020 and 2022

regarding her chronic pain and discomfort, but he discounted the severity of her pain and

discomfort without any meaningful explanation and instead concluded that she experienced a

level of pain and discomfort that the law requires her to work through. (Tr. at 18, “The

claimant’s inability to work without some pain and discomfort, however, does not necessarily

satisfy the test for disability under the provisions of the Act.”) Absent a more detailed

explanation of evidence calling into question the severity of Plaintiff’s pain and discomfort, the

ALJ erred.3 See, e.g., Laurie B. v. Comm’r Soc. Sec. Admin., No. 6:20-cv-02173-JR, 2022 WL

336843, at *4 (D. Or. Feb. 4, 2022) (reversing and remanding for benefits where the “ALJ

rejected plaintiff’s testimony regarding her pain and discomfort by generally stating that an

‘inability to work without some pain and discomfort . . . does not necessarily satisfy the test for

disability under the provisions of the Act’”); Patricia E.G., 2021 WL 2444159, at *4 (finding

that “the ALJ stated that Plaintiff’s inability to work without some pain and discomfort does not

necessarily satisfy the test for disability under the provisions the Act” and holding that the ALJ’s

analysis was “insufficient under the clear and convincing standard”) (simplified).

For all of these reasons, the Court concludes that the ALJ erred by discounting Plaintiff’s

symptom testimony.4

3 To the extent the ALJ relied on the opinions of the non-examining state agency medical

consultants that Plaintiff could perform sedentary work (Tr. 164), Plaintiff correctly points out

that the state agency medical consultants did not have the opportunity to review four years of

medical records from March 2018 through the ALJ’s most recent decision in March 2022. (See

Pl.’s Br. at 12-13; Pl.’s Reply Br. at 5, ECF No. 15.)

4 The Court need not reach Plaintiff’s other assignments of error. (See generally Pl.’s Br.)

II. REMEDY

The Court finds that the credit-as-true standard is satisfied here and that remand for the

payment of benefits is appropriate.

A. Applicable Law

“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) (citation omitted). In a

number of cases, however, the Ninth Circuit has “stated or implied that it would be an abuse of

discretion for a district court not to remand for an award of benefits when [the three-part credit-

as-true standard is] met.” Garrison, 759 F.3d at 1021 (citations omitted).

The credit-as-true standard is met if three conditions are satisfied: “(1) the record has

been fully developed and further administrative proceedings would serve no useful purpose; (2)

the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant

testimony or medical opinion; and (3) if the improperly discredited evidence were credited as

true, the ALJ would be required to find the claimant disabled on remand.” Id. at 1020 (citations

omitted). Even when the credit-as-true standard is met, the court retains the “flexibility to

remand for further proceedings when the record as a whole creates serious doubt as to whether

the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 1021.

B. Analysis

The Court finds that the credit-as-true standard is satisfied here and that remand for an

award of benefits is appropriate.

The Court first concludes that the record has been fully developed. It includes more than

six years’ worth of treatment records, testimony from Plaintiff and her daughter about Plaintiff’s

symptoms and limitations, and medical opinions. As to further proceedings, the Commissioner

argues that “further proceedings is the only appropriate remedy where the record as a whole

shows ‘serious doubt’ that the plaintiff was ‘in fact disabled.’” (Def.’s Br. at 14, ECF No. 14.)

The Commissioner argues that “[t]he inconsistencies between [Plaintiff]’s complaints and the

rest of the evidence all indicate she was not disabled” (id.), but the Commissioner does not

identify any specific issues to address on remand.

Ninth Circuit guidance and the objectives of the credit-as-true rule foreclose an argument

that remanding to allow the Commissioner a do-over serves a “useful purpose” under the first

part of the credit-as-true analysis. See Garrison, 759 F.3d at 1021; see also Leitz v. Kijakazi, No.

22-35356, 2023 WL 4342114, at *3 (9th Cir. July 5, 2023) (“[R]emand would serve no

legitimate purpose. . . . [P]ermitting the Government to introduce additional evidence on remand

would provide the Government with an unfair second opportunity to present its case.” (citing

Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004))); Benecke, 379 F.3d at 595 (“Allowing the

Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let’s play

again’ system of disability benefits adjudication.”); Moisa, 367 F.3d at 887 (“The Commissioner,

having lost this appeal, should not have another opportunity to show that [the claimant] is not

credible any more than [the claimant], had he lost, should have an opportunity for remand and

further proceedings to establish his credibility”). Accordingly, the Court finds that Plaintiff meets

the first part of the credit-as-true analysis.

Second, as discussed above, the ALJ failed to provide legally sufficient reasons for

discounting Plaintiff’s symptom testimony. Accordingly, Plaintiff satisfies the second part of the

credit-as-true analysis.

Third, if the improperly discredited evidence were credited as true, the ALJ would be

required to find Plaintiff disabled because her impairments would cause her to exceed the

customary tolerance for absences. Plaintiff testified that after going through extensive efforts to

treat her impairments, including right and left hip arthroplasties, ORIFs on both her right and left

femurs to correct fractures, steroid injections in both of her knees, and the utilization of pain

medication, her impairments continue to cause emergency department visits and require her to

seclude at home the majority of the time to manage her pain. (Tr. 1250, 1256, 1343, 1350, 1384,

3492, 3535.) The record reflects that, in her last job, Plaintiff was placed on “short-term

disability” and missed several workdays because she had to leave work early due to the pain in

her neck, back, legs, and arms. (Id. at 43, 57.)

When asked if an individual who would routinely miss two days per month of work could

maintain employment, the VE testified that such absences “would rise to a level that employers

simply would not tolerate” and “[t]his individual would not be employable.” (Id. at 3555.) In

light of this testimony, the ALJ would be required to find Plaintiff disabled on remand.

Importantly, the Commissioner has not “pointed to evidence in the record the ALJ overlooked

and explained how that evidence casts serious doubt” on whether Plaintiff is disabled.

Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). The Court concludes that the record

before it does not create any serious doubt as to whether Plaintiff is disabled.

Plaintiff has satisfied the three prongs of the credit-as-true doctrine, and therefore the

Court remands this case for an award of benefits. See Smith v. Saul, 820 F. App’x 582, 586 (9th

Cir. 2020) (reversing district court opinion affirming the denial of benefits and instead

remanding “with instructions to remand to the ALJ for calculation and award of benefits” where

“[t]he vocational expert concluded that an individual with [the claimant’s] limitations, as

described in the improperly discredited testimony of [the treating psychologist], the lay

witnesses, and [the claimant], would be unable to perform competitive employment”); see also

Revels vy. Berryhill, 874 F.3d 648, 668 n.8 (9th Cir. 2017) (explaining that where each of the

credit-as-true factors is met, only in “rare instances” does the record as a whole leave “serious

doubt as to whether the claimant is actually disabled” (citing Garrison, 759 F.3d at 1021)).

CONCLUSION

For the reasons stated, the Court REVERSES the Commissioner’s decision and

REMANDS for the calculation and payment of benefits.

IT IS SO ORDERED.

DATED this 19th day of August, 2024.

SF Havie [oecrrmer

HON. STACIE F. BECKERMAN

United States Magistrate Judge

PAGE 17-— OPINION AND ORDER