Regina Karasik-Tosk v. Andrew Saul

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] R.K.T., 7 Case No. 20-cv-03101-JCS Plaintiff, 8 ORDER REGARDING MOTION FOR v. SUMMARY JUDGMENT AND 9 MOTION TO REMAND KILOLO KIJAKAZI, 10 Re: Dkt. Nos. 26, 30 Defendant. [11] 12 I. INTRODUCTION 13 Plaintiff R.K.T.1 brought this action challenging the decision by Defendant the 14 Commissioner of Social Security (the “Commissioner”)2 finding that she was disabled and entitled 15 to Social Security benefits beginning on November 11, 2015, rather than her alleged onset date of 16 November 14, 2013.3 R.K.T. moves for summary judgment and an award of benefits under the 17 Ninth Circuit’s credit-as-true rule, while the Commissioner, conceding at least some errors in the 18 administrative decision, moves to remand for further proceedings. For the reasons discussed 19 below, the Commissioner’s motion to remand is GRANTED, and R.K.T.’s motion is DENIED to 20 the extent she seeks a finding that she is disabled and instructions to award benefits.4 [21] 1 Because this order contains potentially sensitive medical information and orders of the Court are [22] more widely available for access than other filings, this order identifies R.K.T. only by her initials. This order does not alter the degree of public access to other filings in this action provided by Rule [23] 5.2(c) of the Federal Rules of Civil Procedure and Civil Local Rule 5-1(c)(5)(B)(i). 2 Kilolo Kijakazi became Acting Commissioner while this case was pending and is therefore [24] automatically substituted as the defendant under Federal Rule of Civil Procedure 25(d). 3 Several documents in the record, including R.K.T.’s reply brief, incorrectly reference an alleged [25] onset date of January 1, 2014, which was the date at issue in her first administrative hearing. See, e.g., Pl.’s Reply (dkt. 31) at 1–2. During her second administrative hearing, however, R.K.T. [26] amended her alleged onset date to November 14, 2013, Admin. Record (dkt. 19) at 1796–98, which is the date used in the administrative decision at issue, see generally id. at 1715–30, and the [27] date from which R.K.T. seeks benefits in her motion, Pl.’s Mot. (dkt. 26) at 3. 1 II. BACKGROUND 2 A. Application and First Round of Administrative Proceedings 3 R.K.T. applied for disability benefits in 2014, alleging an onset date of September 29, 4 2010. See Admin. Record (“AR,” dkt. 19) at 21. Her application was denied, and she requested a 5 hearing before an administrative law judge (“ALJ”). See id. At the administrative hearing, R.K.T. 6 amended her onset date to January 1, 2014. See id. 7 The ALJ at that first hearing, Robert Freedman, determined that R.K.T. met the required 8 insured status and had not engaged in substantial gainful activity since her alleged onset date— 9 although she worked as a part time caregiver at the time of the hearing, she worked no more than 10 two hours per day and her income fell below the threshold for substantial gainful activity. Id. at 11 23. ALJ Freedman found in an April 29, 2016 decision that R.K.T.’s degenerative disc disease, 12 fibromyalgia, and arthritis were severe impairments, but that several other impairments (including 13 but not limited to depression) were non-severe. Id. at 23–28. ALJ Freedman determined that none 14 of R.K.T.’s impairments, singly or in combination, met the criteria of any listed impairment. Id. at 15 28. He assessed R.K.T.’s residual functional capacity as able to perform the full range of light 16 work, rejecting aspects of R.K.T.’s own testimony and giving little weight to the opinions of her 17 treating physicians Dr. Galina Balon and Dr. Patti Allen. Id. at 28–34. Based on testimony by a 18 vocational expert, ALJ Freedman determined that R.K.T. could perform her past work as a 19 “medical coder biller,” as well as other jobs available in significant numbers, and thus was not 20 disabled. Id. at 34–36. 21 The Appeals Council affirmed ALJ Freedman’s denial of R.K.T.’s application, making it 22 the Commissioner’s final decision. Id. at 1–3. 23 B. Previous Judicial Review 24 R.K.T. sought review of the ALJ Freedman’s decision in this Court in 2017. The 25 Honorable Beth Labson Freeman granted in part R.K.T.’s motion for summary judgment and 26 granted in part the Commissioner’s motion for summary judgment, holding that ALJ Freedman 27 properly relied on substantial evidence to determine that R.K.T.’s depression was not a severe 1 fibromyalgia, Judge Freeman held that the ALJ properly gave little weight to Drs. Balon and 2 Allen, and granted the Commissioner’s motion for summary judgment as to those portions of the 3 administrative decision. Id. at 1852–59. Turning to R.K.T.’s testimony, Judge Freeman held that 4 the ALJ properly rejected statements regarding her ability to concentrate and other limitations, id. 5 at 1861–62, but “did not provide clear and convincing reasons for discounting [R.K.T.’s] 6 purported inability to sit for longer than 35 minutes before needing to stand and stretch, id. at 7 1862. Judge Freeman held that there was insufficient evidence to determine whether R.K.T. 8 would necessarily be found disabled if her testimony regarding her inability to sit for extended 9 periods were credited as true, and therefore remanded for further administrative proceedings 10 consistent with her order. Id. at 1862–64. 11 C. Administrative Proceedings on Remand 12 Based on Judge Freeman’s decision, the Social Security Administration’s Appeals Council 13 vacated the first ALJ’s decision and remanded for a new decision by another ALJ. See AR at 14 1789–90. The second ALJ, Ruxana Meyer, stated that she was therefore not bound by the first 15 decision. Id. at 1790. She held a hearing on January 23, 2020, taking testimony from R.K.T., a 16 medical expert,5 and a vocational expert. Id. at 1785–1826. R.K.T.’s attorney amended her 17 alleged onset date at the hearing from January 1, 2014 to November 14, 2013. Id. at 1796–98. 18 ALJ Meyer determined that R.K.T. met the required insured status through December 31, 19 2019, and that her ongoing part time work as a caregiver for her elderly parents did not meet the 20 threshold for substantial gainful activity. Id. at 1717. ALJ Meyer assessed a broader range of 21 severe impairments than ALJ Freedman had found: “degenerative disc disease of the cervical and 22 lumbar spine; degenerative joint disease of the left hip; fibromyalgia; gastritis; sinusitis with June 23 2016 bilateral ethmoidectomy, endoscopic maxillary antrostomy, sinusotomy, and turbinate 24 resection with August 2017 revision; obstructive sleep apnea; depressive disorder, not otherwise [26] 5 The impartial medical expert, Dr. Elissa Benedek, testified that R.K.T. met the criteria for Listing 12.04 based on depressive disorder. AR at 1791. ALJ Meyer rejected that opinion as [27] unsupported by the treatment records that Dr. Benedek cited. Id. at 1720–21. R.K.T. does not 1 specified; and anxiety disorder, not otherwise specified.” Id. at 1718. She found that certain other 2 impairments not at issue here were not severe. Id. at 1718–19. 3 Like ALJ Freedman, ALJ Meyer determined that none of R.K.T.’s impairments, singly or 4 in combination, met or were equivalent to any listed impairment. Id. at 1719–22. As is relevant to 5 the parties’ arguments, ALJ Meyer determined that R.K.T.’s residual functional capacity included 6 restrictions to “stand and/or walk for a total of 6 hours in an 8-hour workday; sit for 6 out of 8 7 hours; with the option to change positions after a continuous hour or either sitting or standing 8 while remaining on task,” and to “perform routine 1 to 2-step assignments,” among a wide range 9 of other limitations. Id. at 1722. 10 In reaching that conclusion and rejecting more severe restrictions reported by R.K.T., ALJ 11 Meyer found that R.K.T.’s “medically determinable impairments could reasonably be expected to 12 cause the alleged symptoms; however, [her] statements concerning the intensity, persistence and 13 limiting effects of these symptoms are not fully supported prior to the established onset date.” Id. 14 at 1723. ALJ Meyer failed to identify the specific portions of R.K.T.’s testimony that she found 15 not credible. See id. at 1723–28. She also gave little weight to Dr. Balon’s 2014 opinion that 16 R.K.T. was “unable to perform regular work” (id. at 436) and Dr. Allen’s February 1, 2016 report 17 assessing a number of limitations caused by fibromyalgia (id. at 1706–10). Id. at 1727. ALJ 18 Meyer determined that Dr. Balon’s opinion was conclusory, appeared to be based on R.K.T.’s 19 subjective complaints rather than clinical findings, and contradicted R.K.T.’s daily activities and 20 “the overall medical record when considered as a whole.” Id. She determined that Dr. Allen’s 21 opinion disclaimed any knowledge of whether R.K.T. had positive tender points (a key diagnostic 22 criterium for fibromyalgia), lacked meaningful objective findings, and contradicted treatment 23 notes. Id. 24 ALJ Meyer concluded that R.K.T. was unable to perform her past relevant work, but that 25 prior to November 11, 2015, she could perform other available jobs, including three specific jobs 26 addressed by the vocational expert, such that she was not disabled up to that date. Id. at 1728–30. 27 As of that date, however, R.K.T. reached an age threshold where a change in the Social Security 1 resulting in a finding that she was disabled and entitled to benefits beginning on November 11, 2 2015. Id. at 1730. 3 D. The Parties’ Motions 4 R.K.T. moves for summary judgment, seeking an award of benefits for the period from her 5 alleged onset date of November 14, 2013 to November 11, 2015 under the Ninth Circuit’s credit6 as-true rule, or in the alternative, remand for further proceedings. Pl.’s Mot. (dkt. 26) at 16. She 7 contends that ALJ Meyer erred in giving little weight to the April 2014 opinions of Dr. Balon and 8 the February 2016 opinions of Dr. Allen regarding limitations caused by R.K.T.’s fibromyalgia. 9 Id. at 5–9. She also argues that ALJ Meyer erred in failing to address a discrepancy between the 10 Dictionary of Occupational Titles’ stated requirement for certain jobs and the vocational expert’s 11 testimony that someone with R.K.T.’s limitations could perform those jobs, id. at 9–11, and in 12 again rejecting R.K.T.’s testimony without providing sufficient reasons to do so or identifying the 13 specific testimony she found not credible, id. at 11–15. 14 In lieu of a cross-motion for summary judgment to affirm the administrative decision, the 15 Commissioner moves to remand the case for further administrative proceedings. See generally 16 Def.’s Mot. (dkt. 30.). The Commissioner concedes error with respect to the ALJ’s treatment of 17 R.K.T.’s testimony, id. at 5–7, and the vocational expert’s testimony, id. at 8, but argues that the 18 appropriate remedy for both errors is further administrative proceedings rather than a judicial 19 award of benefits. The Commissioner does not concede error with respect to the ALJ’s treatment 20 of Drs. Balon and Allen’s opinions, and argues that even if the Court found such error, it too 21 would warrant further proceedings. Id. at 4–5. 22 R.K.T.’s reply, arguing for an award of benefits rather than remand for further 23 proceedings, focuses on Drs. Balon and Allen’s opinions, only briefly noting the errors regarding 24 R.K.T.’s own testimony and the ALJ’s evaluation of the jobs she could perform. See generally 25 Pl.’s Reply (dkt. 31). 26 III. ANALYSIS 27 A. Legal Standard 1 affirm, modify, or reverse the Commissioner’s decisions with or without remanding for further 2 hearings. 42 U.S.C. § 405 (g); see also 42 U.S.C. § 1383 (c)(3). 3 When reviewing the Commissioner’s decision, the Court takes as conclusive any findings 4 of the Commissioner that are free of legal error and supported by “substantial evidence.” 5 Substantial evidence is “such evidence as a reasonable mind might accept as adequate to support a 6 conclusion” and that is based on the entire record. Richardson v. Perales, 402 U.S. 389 , 401 7 (1971). “‘Substantial evidence’ means more than a mere scintilla,” id., but “less than a 8 preponderance.” Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 9 1988) (citation omitted). Even if the Commissioner’s findings are supported by substantial 10 evidence, the decision should be set aside if proper legal standards were not applied when 11 weighing the evidence. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978) (quoting Flake v. 12 Gardner, 399 F.2d 532, 540 (9th Cir. 1978)). In reviewing the record, the Court must consider 13 both the evidence that supports and the evidence that detracts from the Commissioner’s 14 conclusion. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Jones v. Heckler, 760 15 F.2d 993, 995 (9th Cir. 1985)). 16 If a district court determines that an ALJ has erred, the court must decide whether to 17 remand for further proceedings or to remand for immediate award of benefits. Harman v. Apfel, [18] 211 F.3d 1172 , 1177–78 (9th Cir. 2000). If an ALJ has improperly failed to credit medical 19 opinion evidence, a district court must credit that testimony as true and remand for an award of 20 benefits if three conditions are satisfied: 21 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 22 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) the improperly 23 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. [24] 25 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Under such circumstances, a court should 26 not remand for further administrative proceedings to reassess credibility. See id. at 1019–21. This 27 “credit as true” rule is “settled” in the Ninth Circuit and is intended to encourage careful analysis 1 claimants, many of whom “suffer from painful and debilitating conditions, as well as severe 2 economic hardship.” Id. at 999 , 1019 (quoting Varney v. Sec’y of Health and Human Servs., 859 3 F.2d 1396 , 1398–99 (9th Cir. 1988)). A court should remand for further proceedings “when the 4 record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the 5 meaning of the Social Security Act.” Id. at 1021 ; Treichler v. Comm’r of Soc. Sec. Admin., 775 6 F.3d 1090, 1107 (9th Cir. 2014). 7 B. Drs. Balon and Allen 8 R.K.T. contends that she is entitled to an award of benefits because ALJ Meyer failed to 9 provide clear and convincing reasons to discount the opinions of R.K.T.’s treating physicians Drs. 10 Balon and Allen. The Commissioner does not concede error as to the ALJ’s treatment of that 11 evidence, and argues that even if the ALJ erred, the appropriate remedy would be further 12 proceedings. While not specifically addressed by the parties here, Judge Freeman already 13 considered and rejected R.K.T.’s challenge to the previous ALJ’s decision affording these same 14 opinions little weight. AR at 1852–58. 15 Courts have generally not permitted parties to relitigate issues previously decided by 16 district courts in Social Security cases before remand for further administrative proceedings. See, 17 e.g., Hammond v. Berryhill, 688 F. App’x 486 (9th Cir. 2017); Ball v. Astrue, No. CV-09-764-HU, [18] 2010 WL 3420166 , at *4–6 (D. Or. Aug. 27, 2010) (collecting cases). District courts have 19 differed as to the appropriate framework for reaching that conclusion, with some applying the law 20 of the case doctrine on the theory that subsequent appeals of the same administrative proceedings 21 remain part of the same case, while others applied the doctrine of issues preclusion (also known as 22 collateral estoppel) based on their view that the entry of judgment in one civil case and filing of a 23 new civil action for a subsequent appeal establishes multiple “cases.” See Ball, 2010 WL 24 3420166, at *4–6 (addressing the split of authority and finding the same result warranted under 25 both doctrines in the alternative). The Ninth Circuit has held in an unpublished decision that law 26 of the case is the more appropriate framework in this context because an earlier remand order by a 27 district court does “not amount to a final adjudication of the rights of the parties in this case,” and [1] 688 F. App’x at 488 (holding that a district court erred in applying issue preclusion, but affirming 2 the outcome based on law of the case). That decision relied on United States v. Park Place 3 Associates, Ltd., 563 F.3d 907 , 925 n.11 (9th Cir. 2009), where the Ninth Circuit held in a 4 published opinion that law of the case rather than issue preclusion was the appropriate doctrine for 5 considering what effect a Federal Circuit decision remanding a case to the Court of Federal Claims 6 had when the same dispute was pursued later through arbitration in California. 7 While the Ninth Circuit did not see fit to resolve in a precedential opinion the disputed 8 issue of which doctrine applies in this particular context, the Court here follows Hammond as 9 persuasive and as the best available authority, and considers the effect of Judge Freeman’s 10 previous decision through the lens of law of the case.6 See Cross v. Comm’r of Soc. Sec. Admin., 11 No. CV-19-01801-PHX-SMB, 2021 WL 1711832 , at *4 (D. Ariz. Apr. 30, 2021) (applying law of 12 the case and citing Hammond). 13 The law of the case doctrine generally prohibits a court from considering an issue that has already been decided by that same court 14 or a higher court in the same case. Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). The doctrine is concerned primarily 15 with efficiency, and should not be applied when the evidence on remand is substantially different, when the controlling law has 16 changed, or when applying the doctrine would be unjust. See Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991). A district court's 17 discretionary decision to apply the law of the case doctrine is reviewed for abuse of discretion. Hall, 697 F.3d at 1067 . [18] 19 Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016). The doctrine “appl[ies] in the social security 20 context.” Id.7 21 In Cross, the District of Arizona held that “the law of the case doctrine preclude[d] the 22 Court from reconsidering whether the ALJ correctly rejected Plaintiff’s symptom testimony,” [23] 6 Alternatively, if issue preclusion applied, the Court would reach the same result under that [24] doctrine. 7 Stacy applied the law of the case doctrine in considering whether an ALJ erred in reconsidering [25] an issue previously decided by ALJs in the same case before review and remand on other grounds by a district court, and held that while “this is typically the type of determination that should not [26] be reconsidered under the law of the case doctrine,” the ALJ did not err because new evidence in the post-remand hearing supported a different conclusion. 825 F.3d at 567 . The Ninth Circuit did [27] not consider in that case which doctrine applies to the particular question at issue here: the effect 1 where the plaintiff had offered “symptom testimony at both hearings”—before and after remand— 2 “related to the same period of time,” and failed to “identify any significant differences between his 3 testimony at either hearing that would render [the previous district judge’s] analysis inapplicable” 4 to affirm the ALJ’s decision to reject both the testimony at the first hearing that the previous 5 district judge had actually considered and the similar testimony after that judge remanded the case 6 for further proceedings. Cross, 2021 WL 1711832 , at *4. 7 Here, the overlap is more complete: R.K.T. challenges ALJ Meyer’s rejection of the exact 8 same reports that Judge Freeman held ALJ Freedman had provided sufficient reasons to reject. 9 The reports were issued before ALJ Freedman’s first decision was rendered, they were specifically 10 addressed by that decision, and they are relevant now only to show disability for a discrete 11 disputed period of time occurring entirely before ALJ Freedman issued his decision. While ALJ 12 Meyer’s rationale for giving little weight to these opinions is not entirely identical to ALJ 13 Freedman’s, it is substantially similar. Both ALJs cited Dr. Balon’s limited objective findings and 14 apparent reliance on R.K.T.’s subjective statements. AR at 33, 1727. Both cited Dr. Allen’s 15 limited treatment history with R.K.T., her professed lack of knowledge of R.K.T.’s positive tender 16 points, and contradictions between her assessments and contemporaneous treatment and 17 examination records. Id. A significant portion of ALJ Meyer’s reasoning for rejecting Dr. Allen’s 18 opinions is copied verbatim from ALJ Freedman’s decision. Id. Judge Freeman held that these 19 reasons were “specific, legitimate,” and “supported by substantial evidence in the record,”8 and 20 therefore entitled to deference. Id. at 1854–55 (addressing Dr. Balon); id. at 1857–58 (addressing 21 Dr. Allen). The overall administrative record is also substantially similar, and R.K.T. cites no 22 evidence that was not available to ALJ Freedman in support of her arguments that ALJ Meyer 23 erred in rejecting these opinions. See Pl.’s Mot. at 5–9; Pl.’s Reply at 3–8. The Court therefore 24 finds that this issue has already been decided by Judge Freeman and is governed by the law of the 25 case. [26] 8 Judge Freeman’s holding that these doctors’ opinions were “contradicted” by the opinions of [27] other physician opinions in the record, and therefore subject to the “specific and legitimate” test 1 “The ‘law of the case” doctrine is subject to the following exceptions: ‘(1) the decision is 2 clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling 3 authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at 4 a subsequent trial.’” Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002) (citation omitted). 5 None of those exceptions apply here. 6 Although the Commissioner did not raise the issue of law of the case, the doctrine is a 7 matter of discretion for the Court intended to safeguard the efficiency and integrity of the judicial 8 process, and the Court finds that relitigating issues previously decided by Judge Freeman would 9 undermine the interests of efficiency and finality that the doctrine protects. Because no exception 10 to the law of the case doctrine applies, the Court finds that R.K.T. has not established error in the 11 ALJ’s treatment of Drs. Balon and Allen’s opinions, and therefore concludes that those opinions 12 offer no basis to remand for an award of benefits rather than further administrative proceedings.9 13 C. Identification of Jobs R.K.T. Could Perform 14 R.K.T. contends that ALJ Meyer erred in accepting the vocational expert’s opinion that 15 someone with the residual functional capacity that ALJ Meyer assessed could work in positions 16 that the Dictionary of Occupational Titles (“DOT”) identifies as “Parking Lot Attendant (DOT # 17 915.473-010), Mailroom Clerk (DOT # 209.687-026), and Cashier II (DOT # 211.462-010).” 18 Pl.’s Mot. at 9. According to R.K.T., that opinion conflicts with the DOT: all of those positions 19 require reasoning levels of 2 or 3, which the Ninth Circuit has held incompatible with a limitation 20 to one- or two-step tasks, which was one of the limitations ALJ Meyer assessed as part of R.K.T.’s 21 residual functional capacity. Id. at 9–10 (citing Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 22 996, 1003 (9th Cir. 2015)). The Commissioner concedes error on this point, acknowledging that 23 the ALJ was required to resolve this apparent conflict between the DOT and the VE’s testimony, 24 and asserts that it should be addressed on remand. Def.’s Mot. at 8. Aside from a passing 25 reference, R.K.T. does not return to this issue in her reply or argue that it is a basis to award [27] 9 This holding is not intended to limit the Commissioner’s discretion to reconsider the significance 1 benefits rather than remand for further proceedings. See generally Pl.’s Reply at 9. The Court is 2 aware of no authority for applying the credit-as-true rule to DOT job definitions that conflict with 3 a vocational expert’s testimony. Cf. G.O. v. Saul, No. 19-cv-01829-JCS, 2020 WL 5653186 , at 4 *22 (N.D. Cal. Sept. 23, 2020) (declining to apply the credit-as-true rule to vocational expert 5 testimony where an ALJ failed to provide sufficient reasons to instead credit earlier testimony 6 from a different vocational expert). Accordingly, the ALJ’s error in addressing jobs that R.K.T. 7 could perform cannot form the basis of remand with an instruction to award benefits. 8 D. R.K.T.’s Testimony 9 R.K.T. argues that ALJ Meyer, like ALJ Freedman before her, failed to provide 10 appropriate consideration of R.K.T.’s testimony regarding her symptoms, including but not limited 11 to her stated inability to sit for more than around thirty-five minutes at a time. Pl.’s Mot. at 11–15. 12 The Commissioner “acknowledges that the ALJ erred in failing to articulate the evaluation of 13 these subjective statements in light of the prior remand,” but argues that R.K.T.’s testimony 14 should not be credited as true because it is in tension with other evidence in the record, and that 15 her testimony should instead be addressed on remand. Def.’s Mot. at 5–7. 16 R.K.T. does not address any particular portion of her own testimony in her reply, instead 17 focusing on the medical opinion evidence discussed above, all but conceding that her own 18 testimony is not a basis to award benefits without further proceedings. See generally Pl.’s Reply. 19 In her motion, she cites her testimony that she naps during the day as establishing that she could 20 not work. Pl.’s Mot. at 14–15 (citing AR at 1809). R.K.T. testified at her January 23, 2020 21 administrative hearing on remand that, due to side effects of her medication, she naps once each 22 day for twenty-five to thirty-five minutes. AR at 1809–10. In response to a question by R.K.T.’s 23 attorney, the vocational expert testified that someone who “had to take one to two naps a day, 24 unscheduled, up to 35 minutes” would not be able to work. Id. at 1825 . R.K.T.’s testimony that 25 she naps once per day, even if credited as true, would not establish that she takes “one to two naps 26 a day,” or that her naps must be “unscheduled.” See id. (emphasis added). Moreover, R.K.T.’s 27 testimony regarding her condition in 2020—years after the 2015 onset date for which ALJ Meyer ] period from 2013 to 2015. Similarly, while R.K.T. asserts that her testimony regarding difficulty 2 || standing and walking establishes that she would be limited to sedentary work, Pl.’s Mot. at 14-15 3 (citing AR at 1802-10), she does not explain the standard for that limitation or how her testimony 4 || meets it, nor does the 2020 testimony that she cites address whether she had the same limitations 5 standing and walking in the relevant period years earlier.'® 6 Accordingly, the Court finds that the credit-as-true rule is not applicable to R.K.T.’s own 7 || testimony because she has not shown that if “the improperly discredited evidence were credited as 8 true, the ALJ would be required to find the claimant disabled on remand.” See Garrison, 759 F.3d 9 || at 1020; see also AR at 1862-64 (Judge Freeman’s decision declining to apply the credit-as-true 10 || rule for the same reason). Il |) IV. CONCLUSION ge 12 For the reasons discussed above, the Commissioner’s motion to remand for further . 13 || proceedings is GRANTED. R.K.T.’s motion for summary judgment is GRANTED to the extent Y 14 || she seeks remand for further proceedings and DENIED to the extent she seeks an instruction to Oo 15 award benefits. The case is hereby REMANDED to the Commissioner for further proceedings Q 16 || consistent with this order and Judge Freeman’s previous order. The Clerk shall enter judgment in 17 favor of R.K.T. and close the case. Z 18 IT ISSO ORDERED. 19 Dated: March 31, 2022 20 c a J PH C. SPERO 21 ief Magistrate Judge [25] %6 '0 Judge Freeman’s decision in R.K.T.’s previous civil case described R.K.T. as “fairly active” and limited the reversal of ALJ Freedman’s initial decision to his failure to provide sufficient reasons 97 || to reject R.K.T.’s testimony regarding her inability to sit for extended periods. AR at 1862. Judge Freeman held that ALJ Freedman “properly discredited some of [R.K.T.’s] testimony,” without 28 specifically addressing whether he was right to reject testimony regarding her ability to stand and walk. /d. at 1861.