Hector v. Kijakazi

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 LILITA H., Case No. 21-cv-04063-JSC Plaintiff, [8] ORDER RE: CROSS-MOTIONS FOR 9 v. SUMMARY JUDGMENT 10 KILOLO KIJAKAZI, Re: Dkt. Nos. 21, 33 Defendant. [12] Plaintiff seeks Social Security benefits for a combination of physical and mental impairments, [13] including post-traumatic stress disorder (PTSD), inability to focus, stress, anxiety, depression and [14] chronic pain. (Administrative Record (“AR”) 182-192, 206-11, 337.) Pursuant to 42 U.S.C. § 405 (g), [15] Plaintiff filed this lawsuit for judicial review of the final decision by the Commissioner of Social [16] Security denying her benefits claim. Before the Court are the parties’ cross-motions for summary [17] judgment. (Dkt. Nos. 21, 33.) As explained below, the Court GRANTS Plaintiff’s motion, DENIES [18] Defendant’s motion, and REMANDS for further proceedings because there are outstanding issues to [19] be resolved before a disability determination can be made. [20] BACKGROUND [21] I.Procedural History [22] Plaintiff applied for supplemental security income (SSI) and disability insurance benefits [23] (DIB) under Titles XVI and II of the Social Security Act in July 2017. (AR 13, 296-309.) Plaintiff [24] alleged a disability onset date of February 19, 2016 due to post-traumatic stress disorder (PTSD), [25] inability to focus, stress, anxiety, depression and chronic pain. (AR 182-192, 206-11, 337.) Her [26] applications were denied initially and upon reconsideration. (AR 167-182, 192, 197, 206.) An [27] 1 On September 29, 2020, the ALJ issued a decision denying Plaintiff’s application for disability 2 (AR 13-26). 3 The ALJ initially determined that Plaintiff met the requirements for DIB insurance benefits 4 through June 30, 2019. (AR 15.) At step one, the ALJ determined that Plaintiff engaged in substantial 5 gainful activity in 2018 and thus continued with the disability analysis after that date. (AR 15-16.) At 6 step two, the ALJ found that Plaintiff had the following severe impairments: generalized anxiety 7 disorder, depression, PTSD, and somatic symptom disorder. (AR 16.) At step three, the ALJ 8 concluded that Plaintiff’s impairments did not meet or equal any of the listed impairments in 20 C.F.R. 9 Part 404, Subpt. P, App. 1. (AR 17.) The ALJ found that Plaintiff had the residual functional capacity 10 (RFC) to perform work at all exertional levels, with the following non-exertional limitations: able to 11 understand, remember, and perform simple, routine tasks and make simple work-related decisions; 12 work in a stable environment with few changes if any during the day-to-day work setting; need to 13 work in a setting that does not require more than occasional interaction with the public; can do low 14 stress work, defined as simple, routine work in an environment free of fast paced production 15 requirements; capable of superficial interaction with supervisors and coworkers. (AR 19.) At steps 16 four and five, the ALJ found that Plaintiff could not perform past relevant work, but that there were 17 other jobs in the national economy that Plaintiff could perform, including janitor, kitchen helper, auto 18 detailer. (AR 25.) 19 The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision. (AR 1, 7.) 20 Plaintiff then sought review in this court. (Dkt. No. 1.) In accordance with Civil Local Rule 21 16-5, the parties filed cross-motions for summary judgment. (Dkt. Nos. 21, 33.) 22 II. Issues for Review1 23 1. Whether the ALJ erred in rejecting Plaintiff’s subjective symptom testimony? 24 2. Whether the ALJ erred in evaluating the medical evidence? 25 3. Whether the ALJ failed to consider Plaintiff’s limitations in combination? 26 4. Whether the ALJ erred in determining Plaintiff’s severe impairments? [27] 1 5. Whether the ALJ erred in determining that Plaintiff did not meet or equal a listing? 2 6. Whether the ALJ erred in determining Plaintiff’s RFC? 3 7. Whether to remand for an award of benefits or further proceedings? 4 LEGAL STANDARD 5 A claimant is considered “disabled” under the Act if she meets two requirements. See 42 6 U.S.C. § 423 (d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must 7 demonstrate “an inability to engage in any substantial gainful activity by reason of any medically 8 determinable physical or mental impairment which can be expected to result in death or which has 9 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 10 423(d)(1)(A). Second, the impairment or impairments must be severe enough that she is unable to do 11 her previous work and cannot, based on her age, education, and work experience, “engage in any other 12 kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). To 13 determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential analysis, 14 examining: (1) whether the claimant is engaging in “substantial gainful activity”; (2) whether the 15 claimant has a “severe medically determinable physical or mental impairment” or combination of 16 impairments that has lasted for more than 12 months; (3) whether the impairment “meets or equals” 17 one of the listings in the regulations; (4) whether, given the claimant’s RFC, she can still do her “past 18 relevant work”; and (5) whether the claimant “can make an adjustment to other work.” Molina v. 19 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012), superseded by regulation on other grounds; see 20 C.F.R. 20 § 404.1520(a). 21 DISCUSSION 22 I. Subjective Symptom Testimony 23 The Ninth Circuit has “established a two-step analysis for determining the extent to which a 24 claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 25 2017). “First, the ALJ must determine whether the claimant has presented objective medical evidence 26 of an underlying impairment which could reasonably be expected to produce the pain or other 27 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (cleaned up). “Second, 1 claimant’s testimony about the severity of her symptoms only by offering specific, clear and 2 convincing reasons for doing so.” Id. (cleaned up). If the ALJ’s assessment “is supported by 3 substantial evidence in the record, [courts] may not engage in second-guessing.” Thomas v. Barnhart, [4] 278 F.3d 947, 959 (9th Cir. 2002) (cleaned up). 5 Applying the two-step analysis, the ALJ first determined that Plaintiff’s “medically 6 determinable impairments could reasonably be expected to cause the alleged symptoms.” (AR 20.) 7 Because Plaintiff met the first part of the test, the ALJ was required to provide “specific, clear and 8 convincing reasons” for rejecting Plaintiff’s testimony regarding the severity of her symptoms, or else 9 find evidence of malingering. Lingenfelter, 504 F.3d at 1036 . Here, the ALJ found that Plaintiff’s 10 “statements concerning the intensity, persistence and limiting effects of these symptoms are not 11 entirely consistent with the medical evidence and other evidence in the record.” (AR 20.) This 12 statement is followed by a summary of Plaintiff’s history of mental health care and then a summary of 13 the various medical opinion testimony. (AR 20-24.) 14 First, the ALJ’s boilerplate conclusory rationale fails to satisfy the requirement that an ALJ 15 provide “specific, clear, and convincing reasons” supported by substantial evidence for rejecting 16 Plaintiff’s subjective symptom testimony. Trevizo, 871 F.3d at 678 (finding that the ALJ erred in using 17 “boilerplate language” for the adverse credibility finding rather than offering “specific, clear, and 18 convincing reasons.”); see also Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (holding 19 the ALJ erred in failing to “specifically identify any such inconsistencies” and instead stating “her 20 non-credibility conclusion and then summariz[ing] the medical evidence supporting her RFC 21 determination.”). To ensure meaningful review, the ALJ must provide “specific reasons” “so that we 22 may ensure that the claimant’s testimony was not arbitrarily discredited.” Brown-Hunter, 806 F.3d at 23 494. That is, the ALJ must “link that testimony to the particular parts of the record supporting her non24 credibility determination.” Id. The ALJ’s failure to do so here is grounds for remand. 25 Second, to the extent that the ALJ’s summary of Plaintiff’s history of mental health care is 26 meant to show that Plaintiff’s symptoms periodically show improvement, the ALJ must consider this 27 improvement in context. While the effectiveness of treatment is a relevant factor an ALJ may consider 1 416.929(c)(3)(iv–v), “it is error to reject a claimant’s testimony merely because symptoms wax and 2 wane in the course of treatment,” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Rather, 3 reports of improvement in the mental health context “must be interpreted with an understanding of the 4 patient’s overall well-being and the nature of h[is] symptoms.” Id.; see also Holohan v. Massanari, [5] 246 F.3d 1195, 1205 (9th Cir. 2001) (“[S]tatements must be read in context of the overall diagnostic 6 picture he draws. That a person who suffers from severe panic attacks, anxiety, and depression makes 7 some improvement does not mean that the person’s impairments no longer seriously affect her ability 8 to function in a workplace.”). 9 Further, the objective medical evidence reflects that the ALJ improperly cherry-picked 10 evidence that supported her conclusion while ignoring medical evidence that contradicted her 11 conclusion. See Cotton v. Astrue, 374 Fed. App’x. 769, 773 (9th Cir. 2010) (holding that an ALJ’s 12 “cherry-picking of [claimant’s] histrionic personality out of her host of other disorders is not a 13 convincing basis for the adverse credibility finding”); see also Williams v. Colvin, No. ED CV 1414 2146-PLA, 2015 WL 4507174 , at *6 (C.D. Cal. July 23, 2015) (“An ALJ may not cherry-pick 15 evidence to support the conclusion that a claimant is not disabled, but must consider the evidence as a 16 whole in making a reasoned disability determination.”). The ALJ seized upon one report of Plaintiff 17 participating well in a group therapy session, while ignoring that Plaintiff often had difficulty 18 interacting with others. (See, e.g., AR 518, 616, 632, 638, 648.) 19 Likewise, to the extent that the ALJ faults Plaintiff for not consistently seeking mental health 20 care, this too is not a specific reason supported by clear and convincing evidence for rejecting her 21 subjective symptom testimony. While an ALJ “is permitted to consider lack of treatment in his 22 credibility determination[,]” Burch, 400 F.3d at 681, an ALJ must also “consider and address reasons 23 for not pursuing treatment that are pertinent to an individual’s case[,]” SSR 16-3P. Here, Layla Uribe, 24 a licensed marriage family therapist at Bay Area Community Services, where Plaintiff obtained case 25 management services between June 2018-June 2019, submitted a letter noting that Plaintiff’s 26 “frustration tolerance” and her Major Depressive Disorder symptoms made it difficult for her “to have 27 the desire or follow through to engage” in ongoing mental health treatment. (AR 653.) The ALJ did 1 ALJ consider the testimony of Kim Ard-Elutio, the CEO and Cofounder of Grassroots Resource 2 Connection, who has been an advocate and friend of Plaintiff’s since 2014. (AR 72-79.) Among other 3 things, Ms. Ard-Elutio testified that Plaintiff’s reluctance to interact with others, lack of transportation, 4 and depression have all prevented her from accessing medical care. (AR 77-79.) The ALJ’s 5 boilerplate conclusion that Plaintiff’s symptom testimony was inconsistent with a lack of treatment 6 does not consider either of these explanations for why Plaintiff did not consistently seek treatment for 7 her mental health conditions during the relevant period. This is equally true with respect the ALJ’s 8 reliance on the absence of evidence of hospitalizations or medication treatment—the ALJ did not 9 consider whether there were other explanations for the lack of evidence of hospitalizations or 10 medication treatment. Further, a claimant’s “failure to receive medical treatment during the period that 11 he had no medical insurance cannot support an adverse credibility finding.” Orn v. Astrue, 495 F.3d 12 625, 635 (9th Cir. 2007). While there is ample evidence of Plaintiff’s homelessness in the record, 13 there is no evidence that the ALJ explored or considered whether her homelessness affected her ability 14 to seek and obtain mental health treatment. 15 Finally, although the ALJ referenced Plaintiff’s activities of daily living, her ability to manage 16 her own finances, and the fact that she worked at substantial gainful activity level in 2018, none of 17 these are specific reasons supported by clear and convincing evidence. (AR 21.) The ALJ failed to 18 identify which activities of daily living were inconsistent with her testimony, and the evidence cited 19 states that Plaintiff can “perform light household chores, but with significant limitations.” (AR 23 20 (citing AR 53).) The ALJ did not explain how Plaintiff’s limited daily activities were inconsistent 21 with her severe impairment or symptom statements. Trevizo, 871 F.3d at 676 . Further, while Plaintiff 22 was employed for four months during 2018, she testified she was terminated after only four months 23 because of her interactions with the public and coworkers. (AR 51-52.) The ALJ’s cherry-picked 24 evidence about Plaintiff’s activities does not provide a clear and convincing reason to reject her 25 symptom testimony. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). 26 In sum, the ALJ’s rejection of Plaintiff’s subjective symptom testimony does not satisfy the 27 “demanding” “clear and convincing standard.” Garrison, 759 F.3d at 1013 . 1 The Ninth Circuit has embraced the Commissioner’s new regulatory framework for evaluating 2 medical opinions for applications filed on or after March 27, 2017. See Woods v. Kijakazi, 32 F.4th 3 785, 789-792 (9th Cir. 2022); see also 20 C.F.R. §§ 404 .1520c, 416.920c (2017). The new framework 4 eliminates a hierarchy of or deference to medical opinions, and instead uses factors to determine the 5 persuasiveness of a medical opinion. See Woods, 32 F.4th at 789-792. The factors are: “(1) 6 supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other 7 factors, such as evidence showing a medical source has familiarity with the other evidence in the claim 8 or an understanding of our disability program’s policies and evidentiary requirements.” P.H. v. Saul, 9 No. 19-cv-04800-VKD, 2021 WL 965330 , at *3 (N.D. Cal. Mar. 15, 2021) (cleaned up). 10 The most important factors are supportability and consistency. See Woods, 32 F.4th at 791. 11 “Supportability means the extent to which a medical source supports the medical opinion by 12 explaining the relevant objective medical evidence.” Id. at 791-92 (cleaned up). “Consistency means 13 the extent to which a medical opinion is consistent with the evidence from other medical sources and 14 nonmedical sources in the claim.” Id. at 792 (cleaned up). The “relationship with the claimant” factor 15 encompasses “the purpose of the treatment relationship, the frequency of examinations, the kinds and 16 extent of examinations that the medical source has performed, . . . and whether the medical source has 17 examined the claimant or merely reviewed the claimant’s records.” Id. The ALJ must explain how he 18 considered supportability and consistency, may explain how he considered the relationship factors, and 19 is not required to explain the other factors. See id.; see also 20 C.F.R. § 404 .1520c(b)(2). 20 Under the new framework, the ALJ is no longer required to “provide specific and legitimate 21 reasons for rejecting an examining doctor’s opinion”; rather, the ALJ’s reasons must “simply be 22 supported by substantial evidence.” Woods, 32 F.4th at 787. 23 Even under the new regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent without 24 providing an explanation supported by substantial evidence. The agency must articulate how persuasive it finds all of the medical 25 opinions . . . and explain how it considered the supportability and consistency factors in reaching these findings. [26] Id. at 792 (cleaned up). [27] A. Consultative Medical Examiner Opinions 1 Both of the consultative medical examiners, Dr. Martin and Dr. Wiebe, found that Plaintiff had 2 marked limitations in her ability to complete a normal workday or workweek without interruptions 3 resulting from her psychiatric condition. (AR 546, 567.) Dr. Wiebe also found that Plaintiff was 4 markedly limited in several other areas including maintaining attention, concentration, and performing 5 at a consistent pace, getting along with others and behaving appropriately; and following detailed 6 instructions. (AR 567.) The ALJ found their opinions only “partially persuasive.” (AR 22-23.) 7 1. Dr. Martin 8 The ALJ found that Dr. Martin’s opinion that Plaintiff had a moderate to marked limitation in 9 handling stress and marked limitation in completing a workday was not supported by the record given 10 her (1) activities of daily living; and (2) “the fact that she engaged in substantial gainful activity in the 11 months after the consultative exam.” (AR 23.) While the ALJ used the word “supported” it appears 12 that she was actually addressing the consistency of Dr. Martin’s opinion with respect to “evidence 13 from other medical sources and nonmedical sources in the claim.” Woods, 32 F.4th at 792 (quoting 20 14 C.F.R. § 404 .1520c(c)(2)). Regardless of which factor the ALJ was relying upon, the ALJ’s finding is 15 not supported by substantial evidence. 16 First, to the extent that the ALJ relied on Plaintiff’s activities of daily living, the ALJ does not 17 identify any particular activities of daily living that conflict with Dr. Martin’s opinion. See Trevizo, [18] 871 F.3d at 675-76 (finding that the ALJ erred in not making specific findings regarding how an 19 activity of daily living (childcare) was inconsistent with a physician’s opinion). Further, the portion of 20 Dr. Martin’s opinion discussing Plaintiff’s activities of daily living—on which the ALJ relies— 21 indicates that while Plaintiff reported “being independent for basic ADL’s” she also reported 22 “[p]roblems with memory and concentration” and that she is “able to perform light household chores, 23 but with significant limitations.” (AR 543 (emphasis added).) In addition, Dr. Martin noted that 24 Plaintiff “has been homeless of the past three years.” (Id.) While a conflict between a medical opinion 25 and a claimant’s activities of daily living, “may justify rejecting a treating provider’s opinion…this 26 principle has no application [where] a holistic review of the record does not reveal an inconsistency 27 between the treating providers’ opinions and [the claimant’s] daily activities.” Ghanim, 763 F.3d at 1 Second, the ALJ’s reliance on the fact that Plaintiff “engaged in substantial gainful activity in 2 the months after the consultative exam,” ignores that, as discussed above, Plaintiff testified she was 3 terminated from that job after only four months because of issues interacting with the public and 4 coworkers. (AR 23, 51-52.) Substantial evidence thus does not support the ALJ’s reliance on this 5 job—from which Plaintiff was terminated—as a basis for finding that Dr. Martin’s opinion that 6 Plaintiff had marked limitations in her ability to complete a normal workday or workweek without 7 interruptions resulting from her psychiatric condition was not supported by the record. 8 2. Dr. Wiebe 9 The ALJ found that Dr. Wiebe’s opinion was only partially persuasive because while there 10 was “some support for finding that the claimant has severe impairment and marked 11 limitations with respect to detailed tasks and concentration,” “the claimant demonstrated greater 12 cognitive ability at the psychiatric consultative exam and during other evaluations” and “the 13 claimant has shown no more than moderate limitation in interacting with others as evidenced by” 14 (1) her participation in group therapy, and (2) her “friendly, cooperative, open, and engaged 15 demeanor/behavior on numerous occasions.” (AR 23.) 16 First, to the extent that the ALJ is relying on Dr. Martin’s psychiatric cognitive exam as a 17 basis for finding that Plaintiff has “greater cognitive ability,” this is not supported by Dr. Martin’s 18 findings. The results of the tests Dr. Martin administered indicated that Plaintiff had “weakness 19 on measures of perceptual reasoning and processing speed” and “showed significant difficulty 20 with sustained attention and mental tracking.” (AR 545-546.) Further, Dr. Martin found that 21 Plaintiff was moderately limited in her ability to maintain regular attendance and perform work 22 activities on a consistent basis, markedly limited in her ability to complete a normal workday or 23 workweek without interruptions resulting from her psychiatric condition, and moderately to 24 markedly limited in her ability to deal with the unusual stresses of a competitive work 25 environment. (AR 546.) 26 Nor is the ALJ’s finding supported by the “other evaluations” the ALJ references. (AR 23 27 (citing 3F8, 5F25, 11F10).) While the chart notes from Plaintiff’s June 27 and July 20, 2017 visits 1 “Psychiatric,” those visits were with a nurse practitioner regarding her elevated blood pressure— 2 not a mental health provider. (AR 478, 537.) During this same time period, Plaintiff had a mental 3 health evaluation which concluded that she was “agitated,” “anxious,” “depressive,” “impairment 4 of erratic/inconsistent memory,” and “impaired ability to make reasonable decisions.” (AR 491 5 (6/27/17 visit notes).) Further, Plaintiff’s August 8, 2017 psychiatric diagnostic evaluation, which 6 is cited by the ALJ (11F25) indicates that “client exhibits difficulties in 7 education/employment/day/social activities,” that she is homeless, and that she “endorses 8 isolation, insomnia, frequent crying ‘for no apparent reason,’ hopelessness, fear of ‘being on the 9 edge of insanity,’ frustrated, confused, inability to focus mind, ‘tired.’ (with implied multiple 10 meanings), anxiety, hypervigilance, and occasional panic attacks.” (AR 602.) During that visit, 11 Plaintiff was diagnosed with “major depressive disorder, Recurrent episode. Severe.” (AR 606.) 12 These evaluations do not support the ALJ’s finding that Plaintiff had “greater cognitive ability.” 13 Second, the record likewise does not support that “the claimant has shown no more than 14 moderate limitation in interacting with others as evidenced by” (1) her participation in group 15 therapy, and (2) her “friendly, cooperative, open, and engaged demeanor/behavior on numerous 16 occasions.” (AR 23.) While there are some notations to this effect in the record, there are 17 numerous—often in the same treatment notes—notations which suggest that she is severely 18 depressed, anxious, and that she is agitated when dealing with medical providers and front desk 19 staff. (See, e.g., AR 518, 616, 632, 638, 648.) An ALJ errs when she considers the claimant’s 20 evidence selectively and ignores evidence that contradicts his findings. See Fanlo v. Berryhill, No. 21 17-cv-01617, 2018 WL 1536732 , at *10 (S.D. Cal. Mar. 28, 2018) (stating that the “ALJ cherry22 picked [the claimant's] progress notes ... to support her conclusion that [the claimant] was stable 23 and improving, but the ALJ failed to acknowledge progress notes from the same time period that 24 directly contradicted her conclusion,” and explaining that ALJs are “not permitted to ‘cherry-pick’ 25 only the records that support [their] position”); see also Holohan v. Massanari, 246 F.3d 1195 , 26 1207 (9th Cir. 2001) (holding that the ALJ erred in selectively relying on entries in the medical 27 record while “ignor[ing] the many others that indicated continued, severe impairment.”). 1 “marked limitations are not consistent with the claimant’s activities of daily living, her ability to 2 manage her own finances, and the fact that she worked at substantial gainful activity level in 3 2018.” (AR 23.) As discussed above in the context of the ALJ’s similar findings with respect to 4 Dr. Martin, the ALJ’s statements are not supported by substantial evidence. 5 In sum, the neither the ALJ’s supportability nor consistency findings with respect to Dr. 6 Wiebe’s opinion are supported by substantial evidence. 7 B. Non-Examining Medical Consultants 8 The ALJ found that the opinions of non-examining medical consultants Dr. Economoe and Dr. 9 Constantine were persuasive because they were “consistent with the longitudinal record.” (AR 22.) 10 Plaintiff insists that the ALJ erred in so concluding because it ignores the evidence in the record from 11 Dr. Martin and Dr. Wiebe finding that Plaintiff had marked limitations in several respects including 12 her ability to complete a normal workweek, ability to get along with others, and ability to behave 13 appropriately. The Court agrees. The ALJ erred in not considering the totality of the evidence, and in 14 particular, the evidence which contradicted Dr. Economoe and Dr. Constantine’s opinions. This is 15 particularly true given that the contradictory opinions were offered by physicians who actually 16 examined Plaintiff. “While the new regulations have abandoned the “controlling weight” rule, the 17 treatment relationship with the claimant continues to be a factor that must be considered in 18 determining the weight to be given medical opinions.” V.W. v. Comm’r of Soc. Sec., No. 18-CV19 07297-JCS, 2020 WL 1505716 , at *16 (N.D. Cal. Mar. 30, 2020) (citing 20 C.F.R. § 404 .1520c(c)(3)) 20 (concluding that “[t]he ALJ’s error was compounded by the fact that he gave “significant weight” to 21 the opinions of state agency doctors who neither examined nor treated V.W.”). 22 C. Other Medical Source Opinions 23 The ALJ found that the statements submitted by Layla Uribe, licensed marriage family 24 therapist at Bar Area Community Services, and Kim Ard-Elutilo, CEO and co-founder of Grassroots 25 Resource Connection, discussed above, were not from “acceptable medical sources” and thus 26 considered them as third-party reports. (AR 23.) Plaintiff raises a variety of claims of error with 27 respect to this finding noting that Mr. Uribe and Ms. Ard-Elutilo’s testimony provides “meaningful 1 discussed above, the ALJ erred in not considering this evidence as an explanation for Plaintiff’s 2 inconsistent mental health care and shall do so on remand. 3 III. Harmless Error 4 Because the ALJ’s consideration of the medical evidence and subjective symptom testimony 5 are not supported by substantial evidence, the ALJ’s decision cannot stand. Given this, the Court need 6 not consider Plaintiff's additional arguments regarding the ALJ’s step-two and step-three analysis and 7 the RFC. The ALJ’s errors here go to the heart of the disability determination and are not harmless. 8 “[A] reviewing court cannot consider the error harmless unless it can confidently conclude that no 9 reasonable ALJ, when fully crediting the testimony, could have reached a different disability 10 determination.” Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). Had the ALJ 11 not erred in evaluating the medical opinion evidence and rejecting Plaintiff’s subjective symptom 12 testimony, the ALJ could have reasonably come to a different conclusion regarding Plaintiff’s mental 13 capacity to work. Id. at 1056 (error was not harmless where crediting lay testimony supported a 14 conclusion that the plaintiff's mental impairments would preclude him from returning to gainful 15 employment). 16 IV. Remand 17 Plaintiff asks the Court to remand the case for the payment of benefits or, alternatively, for 18 further proceedings. When reversing an ALJ’s decision, “the proper course, except in rare 19 circumstances, is to remand to the agency for additional investigation or explanation.” Benecke v. 20 Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). Remand for an award of benefits is proper, however, 21 “where (1) the record has been fully developed and further administrative proceedings would serve no 22 useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, 23 whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were 24 credited as true, the ALJ would be required to find the claimant disabled on remand.” Revels v. 25 Berryhill, 874 F.3d 648, 668 (9th Cir. 2017) (internal quotation marks and citation omitted). 26 Here, the record has not been fully developed because the ALJ did not consider all of the 27 evidence presented by Plaintiff or her medical doctors and thus there are still facts to be decided. [1] 2 CONCLUSION 3 The Court GRANTS Plaintiff’'s motion, DENIES Defendant’s motion, and REMANDS for 4 further proceedings consistent with this Order. 5 This Order disposes of Docket Nos. 21 and 33. [6] 7 IT IS SO ORDERED. 8 Dated: September 13, 2022 Sot 10 Mm JACQUELINE SCOTT CORLE I United States District Judge qa 12 [16] Z 18