Shaw v. Berryhill

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 KATHLEEN S., Case No.: 3:19-cv-00651-JLS-RNB 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION REGARDING CROSS-MOTIONS FOR SUMMARY 14 ANDREW SAUL, Commissioner of JUDGMENT Social Security,1 — 15 — Defendant. (ECF Nos. 12, 13) — 16 — — 17 — 18 This Report and Recommendation is submitted to the Honorable Janis L. 19 Sammartino, United States District Judge, pursuant to 28 U.S.C. § 636 (b)(1) and Civil 20 Local Rule 72.1(c) of the United States District Court for the Southern District of 21 California. 22 On April 8, 2019, plaintiff filed a Complaint pursuant to 42 U.S.C. § 405 (g) seeking 23 judicial review of a decision by the Commissioner of Social Security denying her 24 application for a period of disability and disability insurance benefits. (See ECF No. 1.) 25 Now pending before the Court and ready for decision are the parties’ cross-motions for — 26 — — 27 — 1 Andrew Saul is hereby substituted as the defendant in this case per Fed. R. Civ. P. — 28 — 1 summary judgment. For the reasons set forth herein, the Court RECOMMENDS that 2 plaintiff’s motion for summary judgment be GRANTED, that the Commissioner’s cross3 motion for summary judgment be DENIED, and that Judgment be entered reversing the 4 decision of the Commissioner and remanding this matter for further administrative 5 proceedings. — 6 — 7 PROCEDURAL BACKGROUND 8 On May 28, 2013, plaintiff filed an application for a period of disability and 9 disability insurance benefits, alleging disability commencing March 2, 2012. (Certified 10 Administrative Record [“AR”]) 332-34.) Her application was denied initially and upon 11 reconsideration. (AR 177-81, 187-91.) 12 On February 14, 2014, plaintiff requested a hearing before an administrative law 13 judge (“ALJ”). (AR 193-94.) The hearing was held on April 19, 2016. Plaintiff appeared 14 with counsel, and testimony was taken from her and a vocational expert (“VE”). (See AR 15 78-95.) The ALJ issued a decision on July 19, 2016, finding that plaintiff was not disabled 16 for purposes of her benefits application. (AR 159-68.) Thereafter, plaintiff requested a 17 review of the decision by the Appeals Council. (AR 243.) On October 21, 2016, the 18 Appeals Council granted review, vacated the ALJ’s decision, and remanded for further 19 proceedings. (AR 174-75.) 20 Pursuant to the order of remand, another administrative hearing was held by a 21 different ALJ on November 14, 2017. Plaintiff appeared with different counsel, and 22 testimony was taken from a medical expert (“ME”) telephonically, as well as from plaintiff 23 and a different VE. (See AR 41-77.) The ALJ issued a decision on May 4, 2018, finding 24 that plaintiff was not disabled for purposes of her benefits application. (AR 16-28.) 25 Thereafter, on May 29, 2018, plaintiff through counsel requested a review of the decision 26 by the Appeals Council. (AR 329-31.) Plaintiff’s counsel submitted a single-page letter 27 brief on June 13, 2018 (AR 487) and submitted additional medical evidence on August 6, 28 2018 (AR 97-133). The ALJ’s decision became the final decision of the Commissioner on 1 February 13, 2019, when the Appeals Council denied plaintiff’s request for review. (AR 2 1-6.) This timely civil action followed. — 3 — 4 SUMMARY OF THE ALJ’S FINDINGS 5 In rendering his decision, the ALJ initially determined that plaintiff last met the 6 insured status requirements of the Social Security Act on June 30, 2014. (AR 19.) The 7 ALJ proceeded to follow the Commissioner’s five-step sequential evaluation process. See — 8 — 20 C.F.R. § 404.1520.2 9 At step one, the ALJ found that plaintiff had engaged in substantial gainful activity 10 in 2014. However, the ALJ found that there had been a continuous 12-month period during 11 which plaintiff did not engage in substantial gainful activity. (AR 19.) 12 At step two, the ALJ found that plaintiff had the following severe impairments 13 through the date last insured: chronic obstructive pulmonary disease (“COPD”), hearing 14 loss, residuals of a fractured right foot with cysts, hypertension, a cyst on her liver, and 15 obesity. (AR 20.) As part of his step two determination, the ALJ further found that 16 plaintiff’s medically determinable impairments of hypothyroidism, hyperlipidemia, and 17 Bell’s palsy were nonsevere. (Id.) Likewise, the ALJ found that plaintiff’s medically 18 determinable mental impairments of depression with anxiety were nonsevere. (See AR 2019 22.) 20 At step three, the ALJ found that, through the date last insured, plaintiff did not have 21 an impairment or combination of impairments that met or medically equaled the severity 22 of one of the impairments listed in the Commissioner’s Listing of Impairments. (AR 23.) 23 Next, the ALJ determined that, through the date last insured, plaintiff had the 24 residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 25 404.1567(b), “except that she can stand, walk, or sit for six hours in an eight-hour workday; — 26 — — 27 — 2 Unless otherwise indicated, all references herein to the Commissioner’s regulations — 28 — 1 can do frequent climbing stairs, stooping, kneeling, crouching, and crawling; and must 2 avoid concentrated exposure to pulmonary irritants or extreme temperatures.” (AR 24.) 3 For purposes of his step four determination, the ALJ adduced and accepted the VE’s 4 testimony that a hypothetical person with plaintiff’s vocational profile and RFC would be 5 able to perform the requirements of plaintiff’s past relevant work as a waitress (as actually 6 or generally performed). (AR 27-28.) 7 Accordingly, the ALJ concluded that plaintiff was not disabled through June 30, 8 2014, the date last insured. (AR 28.) — 9 — 10 PLAINTIFF’S CLAIMS OF ERROR 11 1. The Appeals Council was required to grant plaintiff’s request for review 12 pursuant to Social Security Ruling (“SSR”) 19-1p. (See ECF No. 12-1 at 9-10.) 13 2. The ALJ was not properly appointed under the Constitution and therefore 14 lacked legal authority to hear and decide plaintiff’s case. (See ECF No. 12-1 at 10-16.) 15 3. The ALJ violated Agency policy by having the medical expert testify at the 16 beginning of the administrative hearing. (See ECF No. 12-1 at 16-17.) 17 4. The ALJ erred (a) in finding that plaintiff’s mental impairments were 18 nonsevere and (b) in not including mental limitations he found credible in his RFC 19 determination or hypothetical to the VE. (See ECF No. 12-1 at 17-21.) 20 5. The ALJ erred in his RFC determination by failing to adopt functional 21 limitations related to plaintiff’s right arm lymphedema, hearing loss, and obesity. (See 22 ECF No. 12-1 at 21-24.) — 23 — 24 STANDARD OF REVIEW 25 Under 42 U.S.C. § 405 (g), this Court reviews the Commissioner’s decision to 26 determine whether the Commissioner’s findings are supported by substantial evidence and 27 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841 , 846 28 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 1 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 2 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 3 “such relevant evidence as a reasonable mind might accept as adequate to support a 4 conclusion.” Richardson, 402 U.S. at 401 . The Court must review the record as a whole 5 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528 , 5296 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 7 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450 , 1452 8 (9th Cir. 1984). — 9 — 10 DISCUSSION 11 A. Plaintiff’s first and second claims of error fail because she did not timely raise 12 the Appointments Clause issue during the administrative proceedings. 13 Plaintiff’s first claim of error is premised on SSR 19-1p, which was promulgated in 14 light of the Supreme Court’s decision in Lucia v. Securities and Exchange Commission, — 15 — 138 S. Ct. 2044 (2018) and which provides in pertinent part: 16 The Appeals Council will grant the claimant’s request for review in cases where the claimant: (1) Timely requests Appeals Council review of an ALJ’s — 17 — decision or dismissal issued before July 16, 2018; and (2) raises before us 18 (either at the Appeals Council level, or previously had raised at the ALJ level) a challenge under the Appointments Clause to the authority of the ALJ who — 19 — issued the decision or dismissal in the case. — 20 — 21 Here, the ALJ’s decision was issued before July 16, 2018 (i.e., on May 4, 2018) and 22 plaintiff did timely request review of that decision on May 29, 2018. However, the first 23 time plaintiff raised a challenge under the Appointments Clause to the authority of the ALJ 24 was on February 26, 2019, nearly two weeks after the Appeals Council had issued its final 25 decision declining further review. (See AR 39-40.) The Court concurs with the 26 Commissioner that, by then, the window for raising any such challenge and triggering the 27 application of SSR 19-1p was closed. Indeed, the Court deems plaintiff’s failure to reply 28 to the Commissioner’s contention regarding the inapplicability of SSR 19-1p as a 1 concession to the correctness of the Commissioner’s position on plaintiff’s first claim of 2 error. 3 Plaintiff’s second claim of error is a straight Appointments Clause claim premised 4 on the Supreme Court’s decision in Lucia. There, the Supreme Court held that ALJs of the 5 Securities and Exchange Commission (“SEC”) are “Officers of the United States,” and 6 therefore subject to the Appointments Clause of the Constitution. Lucia, 138 S. Ct. at 2055 . 7 The Court stated that “‘one who makes a timely challenge to the constitutional validity of 8 the appointment of an officer who adjudicates his case’ is entitled to relief.” Id. (quoting 9 Ryder v. United States, 515 U.S. 177, 182-83 (1995)). The Supreme Court reasoned that 10 Lucia was entitled to a new hearing before a different constitutionally-appointed SEC ALJ 11 because he had made a “timely challenge to the constitutional validity of the appointment 12 of [the] officer who adjudicate[d] his case.” Id. The Court determined that Lucia’s 13 challenge was timely because he had “contested the validity of [the ALJ’s] appointment 14 before the Commission, and continued pressing that claim in the Court of Appeals and this 15 Court.” Id. 16 The consensus of the Circuit Courts, including the Ninth Circuit, is that 17 Appointments Clause challenges are nonjurisdictional and may be waived or forfeited if 18 not timely asserted during the administrative proceedings. See, e.g., Turner Bros., Inc. v. 19 Conley, 757 F. App’x 697 , 700 (10th Cir. 2018); Kabani & Co., Inc. v. SEC, 733 F. App’x 20 918, 919 (9th Cir. 2018); Jones Bros., Inc. v. Sec’y of Labor, 898 F.3d 669, 678 (6th Cir. 21 2018); N.L.R.B. v. RELCO Locomotives, Inc., 734 F.3d 764, 798 (8th Cir. 2013); see also 22 Intercollegiate Broad. Sys. v. Copyright Royalty Bd., 574 F.3d 748, 755-56 (D.C. Cir. 23 2009) (declining to address Appointments Clause challenge to the Copyright Royalty 24 Board members raised in supplemental briefing because it was “untimely”). 25 Notwithstanding the foregoing authority, plaintiff disputes that her failure to timely 26 raise the Appointments Clause issue at the Appeals Council level results in forfeiture of 27 that issue. Plaintiff bases this position on the Supreme Court’s holding regarding issue 28 exhaustion in Sims v. Apfel, 530 U.S. 130 (2000). (See ECF No. 12-1 at 12-14.) 1 In Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999), a decision pre-dating Sims, the 2 Ninth Circuit held that a claimant “must raise all issues and evidence at their 3 administrative hearings in order to preserve them on appeal.” Id. at 1115 (emphasis 4 added). In Sims, the Supreme Court held that claimants need not “exhaust issues in a 5 request for review by the Appeals Council in order to preserve judicial review of those 6 issues.” Sims, 530 U.S. at 111 . However, earlier in the decision, the Supreme Court 7 explicitly noted that “[w]hether a claimant must exhaust issues before the ALJ is not before 8 us.” See id. at 107. In Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir. 2017), a case decided 9 after Sims, the Ninth Circuit stated that “[i]n light of the Court’s express limitation on its 10 holding in Sims, we cannot say that that holding is ‘clearly irreconcilable’ with our decision 11 in Meanel, and Meanel therefore remains binding on this court with respect to 12 proceedings before an ALJ.” Id. at 1109 (emphasis added). 13 Here, plaintiff did not raise her Appointments Clause objection/challenge in front of 14 the ALJ and, as discussed above, she did not timely raise the issue before the Appeals 15 Council. The Court therefore will follow the reasoning of other district courts in this 16 Circuit which have rejected Appointments Clause claims post Sims when the challenge was 17 not timely made at the administrative level. See, e.g., Samuels v. Comm’r of Soc. Sec., — 18 — 2019 WL 4479534 , at *5 (N.D. Cal. Sept. 18, 2019); Camilli v. Berryhill, 2019 WL 19 3412921, at *13 (N.D. Cal. July 29, 2019); Morrow v. Berryhill, 2019 WL 2009303 , at *320 *4 (N.D. Cal. May 7, 2019); Allen v. Berryhill, 2019 WL 1438845 , at *13 (N.D. Cal. Mar. 21 31, 2019); Delores A v. Berryhill, 2019 WL 1330314 , at *10 (C.D. Cal. Mar. 25, 2019); 22 Dierker v. Berryhill, 2019 WL 246429 , at *3-*4 (S.D. Cal. Jan. 16, 2019), Report and 23 Recommendation adopted by 2019 WL 446231 (S.D. Cal. Feb. 5, 2019); Hugues v. 24 Berryhill, 2018 WL 3239835 , at *2 n.2 (C.D. Cal. July 2, 2018). 25 // 26 // 27 // — 28 — 1 B. Reversal is not warranted based on the ALJ’s finding that plaintiff’s mental 2 impairments were nonsevere. 3 As part of her fourth claim of error, plaintiff is challenging the ALJ’s finding at step 4 two of the sequential evaluation process that plaintiff’s depression and anxiety were 5 nonsevere.3 6 Step two of the Commissioner’s sequential evaluation process requires the ALJ to 7 determine the medical severity of the claimant’s medically determinable impairments. See — 8 — 20 C.F.R. § 404.1520 (a)(4)(ii). The Social Security Regulations and Rulings, as well as 9 case law applying them, discuss the step two severity determination in terms of what is 10 “not severe.” Under the Commissioner’s regulations, an impairment is not severe “if it 11 does not significantly limit [the claimant’s] physical or mental ability to do basic work 12 activities.” See 20 C.F.R. § 404.1522 (a). SSR 85-28 clarified that this means “an 13 impairment is not severe if it has no more than a minimal effect on an individual’s physical 14 or mental ability(ies) to do basic work activities.” See also Webb v. Barnhart, 433 F.3d 15 683, 686 (9th Cir. 2005). Basic work activities are “the abilities and aptitudes necessary 16 to do most jobs,” including mental activities such as understanding, carrying out, and 17 remembering simple instructions; use of judgment; responding appropriately to 18 supervision, co-workers, and usual work situations; and dealing with changes in a routine 19 work setting. See 20 C.F.R. § 404.1522 (b); see also SSR 85-28. 20 The Ninth Circuit has described step two as “a de minimis screening device to 21 dispose of groundless claims.” See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 22 see also Webb, 433 F.3d at 687 . 23 The fallacy of plaintiff’s claim that the ALJ erred in his nonseverity finding is that 24 plaintiff is not focusing on the actual basis for the ALJ’s finding. Under the — 25 — — 26 — 27 3 In her fourth claim of error, plaintiff also contends that the ALJ erred in not including mental limitations he found credible in his RFC determination or hypothetical to the VE. — 28 — 1 Commissioner’s regulations, to determine whether a claimant has a severe mental 2 impairment at step two, an ALJ must follow a “special technique.” See 20 C.F.R. § 3 404.1520a(a).4 This entails the following steps: determining whether the claimant has any 4 medically determinable mental impairments; rating the degree of functional limitation 5 resulting from the mental impairment(s) in four broad functional areas; determining the 6 severity of the mental impairment(s); and then, if any of the mental impairments is severe, 7 proceeding to step three of the sequential evaluation process. See 20 C.F.R. § 8 404.1520a(b)-(d). 9 The four broad functional areas are: understand, remember, or apply information; 10 interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. 11 See 20 C.F.R. § 404 .1520a(c)(3). In rating the degree of limitation in these areas, the 12 following five-point scale is utilized: None, mild, moderate, marked, and extreme. See 20 13 C.F.R. § 404 .1520a(c)(4). Under the Commissioner’s regulations, if the degrees of 14 limitation are rated as “none” or “mild,” the impairment generally is considered not severe, 15 “unless the evidence otherwise indicates that there is more than a minimal limitation in 16 your ability to do basic work activities.” See 20 C.F.R. § 404 .1520a(d)(1). 17 Here, the ALJ’s decision reflects that he followed the “special technique.” He 18 acknowledged that plaintiff had been diagnosed with major depressive disorder and been 19 treated with medications, including medications for anxiety. (See AR 20.) The ALJ then 20 proceeded to rate the degree of functional limitation resulting from plaintiff’s mental 21 impairments in the four broad functional areas. — 22 — — 23 — — 24 — 25 4 The Court notes that the Social Security Agency revised the medical criteria used to evaluate claims involving mental disorders in a revised version of 20 C.F.R. § 404 .1520a — 26 — effective January 17, 2017. The revised version applies to ALJ decisions issued after that 27 date. See 81 Fed. Reg. 66138 -01, at 66138 n.1 (Sept. 26, 2016). Since the ALJ decision here was issued on May 4, 2018, all references herein to 20 C.F.R. § 404 .1520a will refer — 28 — 1 With respect to the first broad functional area (i.e., understanding, remembering or 2 applying information), the ALJ found that plaintiff had no limitations. In support of this 3 finding, the ALJ noted that the record did not include any evidence of an intellectual 4 disability and that plaintiff had completed high school, obtained a cosmetology license, 5 and owned her own business. Additionally, the ALJ noted that, on mental status 6 examination, plaintiff’s thought process, insight, judgment, and memory had been intact. 7 (AR 21.) 8 With respect to the second broad functional area (i.e., interacting with others), the 9 ALJ found that plaintiff had mild limitations. In support of this finding, the ALJ noted 10 that, on mental status examination, plaintiff had retained a normal eye contact, and had 11 been cooperative, demonstrating ability to relate to others. The ALJ also noted that the 12 record included no clinical findings that would demonstrate any difficulties getting along 13 with others. However, in a functional report to social security, plaintiff had reported 14 isolating herself, doing no social activities, and not getting along with family. The ALJ 15 reconciled the clinical findings with plaintiff’s report by finding mild limitations in this 16 area of functioning. (AR 21-22.) 17 With respect to the third broad functional area (i.e., concentrating, persisting, or 18 maintaining pace), the ALJ found that plaintiff had mild limitations. In support of this 19 finding, the ALJ noted that plaintiff had reported being able to pay attention for a couple 20 of hours, feeling overwhelmed, and not being able to perform tasks like she used to. 21 However, on mental status examination, she had been noted as having no difficulties with 22 concentrating or focus and the record did not include any other clinical findings showing 23 difficulty in completing tasks. Plaintiff also had reported watching television daily. The 24 ALJ reconciled plaintiff’s allegations with the clinical evidence by finding mild limitations 25 in this area of functioning. (AR 22.) 26 With respect to the fourth broad functional area (i.e., adapting or managing oneself), 27 the ALJ found that plaintiff had mild limitations. In support of this finding, the ALJ noted 28 that he considered a claimant’s ability to regulate emotions, control behavior, and maintain 1 well-being in work settings in this area of functioning. He noted that evidence indicated 2 that plaintiff had presented as well groomed at appointments, demonstrating ability to 3 maintain personal hygiene and attire appropriate to a work setting. Plaintiff also had 4 reported independently doing her laundry, preparing her meals, shopping, and watering 5 outdoor plants. However, because she had reported anxiety with panic attacks and had had 6 a suicidal incident, the ALJ found mild limitations in this area of functioning. (AR 22.) 7 Because they caused no more than “mild” limitations in the four broad functional 8 areas, the ALJ found that plaintiff’s medically determinable mental impairments were 9 nonsevere. (See AR 22.) 10 Nowhere in the section of plaintiff’s summary judgment motion challenging this 11 nonseverity finding does plaintiff address the ALJ’s findings with respect to the four broad 12 functional areas or the ALJ’s reasoning in support of those findings. (See ECF No. 12-1 at 13 17-20.) The Court finds that the ALJ’s findings with respect to the four broad functional 14 areas are based on a rational interpretation of the evidence. The Court further finds that 15 this is not an instance where the medical evidence otherwise indicates that there is more 16 than a minimal limitation in plaintiff’s ability to do basic mental work activities. While 17 plaintiff was prescribed a medication for anxiety, multiple examinations by plaintiff’s 18 treating medical providers during the period subsequent to the alleged onset date reflect 19 normal psychiatric findings. Indeed, plaintiff more than once denied experiencing any 20 psychiatric symptoms. (See, e.g., AR 516, 720, 745, 801, 803, 812, 816, 925.) 21 Accordingly, the Court has no basis for finding that the ALJ erred in finding that plaintiff’s 22 medically determinable mental impairments were nonsevere. — 23 — 24 C. Reversal is not warranted based on the ALJ having the ME testify at the 25 beginning of the administrative hearing. 26 Plaintiff’s third claim of error is that the ALJ violated Agency policy by having the 27 ME testify at the beginning of the administrative hearing, before plaintiff testified. This 28 claim is based on the Social Security Agency’s internal policy manual, the Hearings, 1 Appeals, and Litigation Manual (“HALLEX”), and specifically § I-2-6-70(b) which 2 provides in pertinent part: 3 The ME may attend the entire hearing, but this is not required. If the ME was not present to hear pertinent testimony, such as testimony regarding the — 4 — claimant's current medications or sources and types of treatment, the ALJ will 5 summarize the testimony for the ME on the record. If additional medical evidence is received at the hearing, the ALJ will provide it to the ME for — 6 — review before the ME testifies. — 7 — 8 In his cross-motion, the Commissioner does not dispute that the ME’s testimony at 9 the administrative hearing preceded plaintiff’s testimony and thus the ME was unaware of 10 plaintiff’s testimony when he rendered his opinions. Rather, the Commissioner contends 11 that reversal is not warranted based on this alleged error because the Ninth Circuit has held 12 that HALLEX does not give rise to any legally enforceable rights. (See ECF No. 13-1 at 13 17, citing Roberts v. Comm’r of Soc. Sec. Admin., 644 F.3d 931, 933 (9th Cir. 2011) and 14 Lockwood v. Comm’r Soc. Sec., 616 F.3d 1068, 1072 (9th Cir. 2010).) 15 Plaintiff maintains in her reply brief that the Commissioner’s reliance on Roberts 16 and Lockwood is misplaced because those decisions pre-date the promulgation of SSR 1317 2p in 2013. According to plaintiff, SSR 13-2p made the HALLEX binding on ALJs as a 18 matter of explicit agency policy. (See ECF No. 14 at 7-8.) 19 The Court notes that, even after the promulgation of SSR 13-2p on February 20, 20 2013, the Ninth Circuit has continued to cite Roberts and Lockwood for the proposition 21 that the Agency’s internal policy manuals such as HALLEX do not give rise to any legally 22 enforceable rights. See, e.g., Wilson v. Berryhill, 732 F. App’x 504 , 507 (9th Cir. 2018); 23 Withrow v. Colvin, 672 F. App’x 748, 749 (9th Cir. 2017); Whitten v. Colvin, 642 F. App’x 24 710, 713 (9th Cir. 2016); Durden v. Colvin, 546 F. App’x 690, 690-91 (9th Cir. 2013). 25 Moreover, the contention that SSR 13-2p overrides the holdings of Roberts and Lockwood 26 has been rejected by other district courts in this Circuit, including another court in this 27 district. See Elias v. Comm’r of Soc. Sec. Admin., 2019 WL 4296779 , at *3 (D. Ariz. Sept. 28 11, 2019); Hanh L. v. Comm’r, Soc. Sec. Admin., 2019 WL 5858187 , at *5 (D. Or. July 23, 1 2019), Report and Recommendation Adopted by 2019 WL 5858182 (D. Or. Sept. 3, 2019); 2 Hollen v. Comm’r of Soc. Sec., 2017 WL 1075194 , at *8-*9 (S.D. Cal. Mar. 22, 2017); 3 Martinez v. Colvin, 2016 WL 270911 , at *5 (D. Or. Jan. 20, 2016). 4 Indeed, in Hollen, 2017 WL 1075194 , at *8-*9, the Southern District of California 5 case, the plaintiff likewise was arguing that the ALJ had erred by failing to follow a 6 HALLEX procedure for procuring testimony from a medical expert and that Lockwood no 7 longer was binding as it was decided prior to SSR 13-2p. In rejecting the plaintiff’s 8 position, the district judge reasoned as follows: 9 “HALLEX does not impose judicially enforceable duties on either the ALJ or this court.” Lockwood, 616 F.3d at 1072 . No authority has ever found — 10 — the Ninth Circuit’s position on HALLEX was overturned, and Plaintiff’s 11 assertion that SSR 13-2P mandates that ALJs follow HALLEX procedures is erroneous. — 12 — “Social Security Rulings ‘represent ... statements of policy and 13 interpretations ... [but] do not carry the ‘force of law.”’ Bray, 554 F.3d at 1224. Rather, they are only binding as far as the interpretation is applicable — 14 — to the facts underlying an ALJ’s decision. Id. 15 Despite Plaintiff’s arguments to the contrary, SSR 13-2P carries no substantive policy interpretations applicable to the facts of her case. Rather, — 16 — SSR 13-2P is a policy ruling clarifying how the Agency determines ‘whether 17 drug addiction is a contributing factor material to the determination of disability.’ 78 Fed. Reg. 11939 , 11941 (Mar. 22, 2013). As Plaintiff does not — 18 — claim the ALJ improperly applied the Plaintiff’s drug or alcohol dependence 19 in his disability determination, SSR 13-2p is not binding. See Martinez v. Colvin, Case No. 14cv1703-MC, 2016 WL 1054497 , at *5 (D. Or. Jan. 20, — 20 — 2016) (“Plaintiff made no claims that there were misinterpretations of policies 21 relating to drug addiction and alcoholism in this case. Therefore, SSR 13-2P is inapplicable here and does not change this Court's application of — 22 — Lockwood.”). 23 Accordingly, as SSR 13-2P does not mandate the ALJ follow HALLEX procedures, the ALJ did not err by refusing to summarize Plaintiff’s subjective — 24 — testimony for the ME. — 25 — The Court concurs with the foregoing reasoning. Accordingly, the Court finds that — 26 — reversal is not warranted based on the ALJ’s alleged error in having the ME testify at the — 27 — beginning of the administrative hearing, before plaintiff testified. — 28 — 1 D. The Court is unable to affirm the ALJ’s RFC determination because (a) the 2 ALJ failed to properly consider the limiting effects of plaintiff’s mental 3 impairments in his determination of plaintiff’s RFC; (b) the ALJ failed to 4 consider whether plaintiff had any physical functional limitations as a result of 5 her right arm lymphedema based on his erroneous finding that plaintiff’s right 6 arm lymphedema was not a medically determinable impairment; (c) the ALJ 7 should have developed the record further with respect to plaintiff’s obesity; and 8 (d) the ALJ should have developed the record further with respect to plaintiff’s 9 hearing loss. 10 For the following four reasons, the Court is unable to affirm the ALJ’s RFC 11 determination. It follows that the Court also is unable to affirm the ALJ’s vocational 12 determination at step four of the sequential evaluation process. — 13 — 14 1. The ALJ failed to properly consider the limiting effects of plaintiff’s mental 15 impairments in his determination of plaintiff’s RFC. 16 As part of her fourth claim of error, plaintiff contends that the ALJ erred in not 17 including the mild mental limitations he found credible at step two of the sequential 18 evaluation process in his RFC determination or his hypothetical questions to the VE. (See 19 ECF No. 12-1 at 20-21.) 20 In assessing a claimant’s RFC, an ALJ must consider the limiting effect of all 21 impairments, including those that are nonsevere. See 20 C.F.R. § 404.1545 (a)(2). In 22 Hutton v. Astrue, 491 F. App’x 850 (9th Cir. 2012), the ALJ determined at step two that 23 the claimant’s PTSD caused mild limitations in concentration, persistence or pace, but was 24 nonsevere. Hutton, 491 F. App’x at 850 . The ALJ later explicitly excluded consideration 25 of the claimant’s PTSD in making his determination of the claimant’s RFC because he 26 found that the claimant lacked credibility. In holding that the ALJ had erred, the Ninth 27 Circuit reasoned: “[W]hile the ALJ was free to reject Hutton's testimony as not credible, 28 there was no reason for the ALJ to disregard his own finding that Hutton's nonsevere PTSD 1 caused some “mild” limitations in the areas of concentration, persistence, or pace.” Hutton, — 2 — 491 F. App’x at 851 . 3 Numerous courts in this Circuit have followed Hutton and found reversible error 4 where the ALJ failed to include mild mental limitations in the assessment of the claimant’s 5 RFC. See, e.g., Carlson v. Berryhill, 2019 WL 1116241 , at *17-*18 (N.D. Cal. Mar. 10, 6 2019); Barrera v. Berryhill, 2018 WL 4216693 , at *4-*5 (C.D. Cal. Sept. 5, 2018); Gates 7 v. Berryhill, 2017 WL 2174401 , at *2 (C.D. Cal. May 16, 2017); Smith v. Colvin, 2015 WL 8 9023486, at *8-*9 (N.D. Cal. Dec. 16, 2015); Kramer v. Astrue, 2013 WL 256790 , at *29 3 (C.D. Cal. Jan. 22, 2013). Other courts have found Hutton to be inapplicable where the 10 record demonstrates that the ALJ did consider a claimant’s nonsevere mental impairments 11 before concluding that they did not cause any significant limitation necessitating inclusion 12 in the RFC. See, e.g., Thompson v. Saul, 2019 WL 3302471 , at *7 (E.D. Cal. July 23, 13 2019); George A. v. Berryhill, 2019 WL 1875523 , at *3-*5 (C.D. Cal. Apr. 24, 2019); 14 Lindsay v. Berryhill, 2018 WL 3487167 , at *6 (C.D. Cal. July 18, 2018); Aranda v. 15 Berryhill, 2017 WL 3399999 , at *5-*6 (C.D. Cal. Aug. 8, 2017). 16 In the Court’s view, this case falls squarely under Hutton. The ALJ here found mild 17 limitations in three of the four broad functional areas: interacting with others; 18 concentrating, persisting, or maintaining pace; and adapting or managing oneself. Based 19 on these findings and his finding of no limitation in the other broad functional area, the 20 ALJ determined that plaintiff’s medically determinable mental impairments were 21 nonsevere. However, the ALJ acknowledged that the mental RFC assessment used at steps 22 four and five of the sequential evaluation process “requires a more detailed assessment by 23 itemizing various functions contained in the broad categories found in paragraph B of the 24 adult mental disorders listings.” (See AR 22, citing SSR 96-8p.) Notwithstanding this 25 acknowledgement, the ALJ discussed plaintiff’s mental impairments only in connection 26 with Finding No. 4 (severity) of his decision. (See AR 20-23.) The decision does not 27 contain any discussion or reflect any reasoned consideration of the mild limitations caused 28 by plaintiff’s mental impairments in connection with Finding No. 6 (RFC). (See AR 241 27.) Nor does the decision contain any discussion or reflect any reasoned consideration of 2 the mild limitations caused by plaintiff’s mental impairments in connection with Finding 3 No. 7 (past relevant work). (See AR 27-28.) The ALJ’s boilerplate assertion in connection 4 with Finding No. 4 that his RFC assessment “reflects the degree of limitation I have found 5 in the ‘paragraph B’ mental function analysis” was not sufficient. See Delia v. Saul, 2019 6 WL 4601834 , at *8 (D. Idaho Sept. 23, 2019); Gates, 2017 WL 2174401 , at *3 (rejecting 7 the Commissioner’s argument that one can “infer” that the ALJ considered plaintiff’s mild 8 mental limitations as inconsistent with Hutton); cf. Curtis v. Comm’r of Soc. Sec., 584 F. 9 App'x 390, 391 (9th Cir. 2014) (“Although the ALJ wrote that he considered ‘[a]ll 10 impairments, severe and non-severe,’ in determining [the claimant’s] residual functional 11 capacity (RFC), we are unable to determine on the record before us whether the ALJ 12 adequately considered [the claimant’s] mental health limitations.”). 13 Thus, the ALJ plainly erred. Moreover, the Court is unable to find that the error was 14 “inconsequential to the ultimate nondisability determination” and therefore harmless. See 15 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). The Court cannot determine what 16 the result would have been if the ALJ had properly considered plaintiff’s mild mental 17 limitations when assessing her RFC. Since the ALJ did not include in any of his 18 hypotheticals to the VE any functional limitations relating to plaintiff’s mild mental 19 limitations (see AR 72-75), the Court also cannot determine how the VE would have 20 testified had any such limitations been included in the hypotheticals posed. — 21 — 22 2. The ALJ failed to consider whether plaintiff had any physical functional 23 limitations as a result of her right arm lymphedema based on his erroneous 24 finding that plaintiff’s right arm lymphedema was not a medically 25 determinable impairment. 26 In connection with Finding No. 4 (severity) of his decision, the ALJ acknowledged 27 that plaintiff had complained of lymphedema. However, the ALJ stated that he did not — 28 — 1 consider lymphedema in his RFC determination because it was not a medically 2 determinable impairment. (See AR 23.) 3 As part of her fifth claim of error, plaintiff contends that the ALJ erred in finding 4 that plaintiff’s right arm lymphedema was not a medically determinable impairment and in 5 failing to adopt any functional limitations related to this impairment. (See ECF No. 12-1 6 at 21-22.) The Court concurs that the ALJ erred in finding that plaintiff’s right arm 7 lymphedema was not a medically determinable impairment. Plaintiff’s treatment notes 8 reflect a finding on physical examination of “mild lymphedema in her right arm.” (See AR 9 502.) 10 Thus, the question becomes whether the ALJ’s error was harmless. As noted above, 11 under the Commissioner’s regulations, an ALJ must consider the limiting effect of all 12 impairments in assessing a claimant’s RFC, including those that the ALJ assessed as 13 nonsevere. Here, plaintiff testified at the administrative hearing about functional 14 limitations caused by her lymphedema, such as difficulty gripping things and the inability 15 to carry anything with her right arm. (See AR 61-63, 67-68.) However, the ALJ’s decision 16 does not contain any discussion or reflect any reasoned consideration of that testimony or 17 of plaintiff’s right arm lymphedema in connection with his RFC determination and the 18 ALJ’s RFC determination did not include any functional imitations relating to plaintiff’s 19 use of her right arm. (See AR 24-27.) While the ALJ’s third hypothetical to the VE did 20 include functional limitations due to plaintiff’s lymphedema in her right dominant hand 21 (see AR 74), those limitations did not completely comport with the functional limitations 22 caused by her lymphedema about which plaintiff had testified. Accordingly, the Court is 23 unable to find that this error by the ALJ was harmless. — 24 — 25 3. The ALJ should have developed the record further with respect to plaintiff’s 26 obesity. 27 As part of her fifth claim of error, plaintiff also contends that, in light of his step two 28 finding that plaintiff’s obesity constituted a severe impairment and the ME’s 1 acknowledgment at the administrative hearing that plaintiff would have postural limitations 2 because of her obesity (see AR 50), the ALJ erred when he failed to adopt any postural 3 limitations relating to plaintiff’s obesity. (See ECF No. 12-1 at 23-24.) In response, the 4 Commissioner disputes that the ALJ failed to account for plaintiff’s obesity in his RFC 5 determination. The Commissioner notes in this regard that the ALJ assessed a restrictive 6 RFC that “limited [p]laintiff’s walking standing, sitting, postural, and environmental 7 capacities”; and that, contrary to plaintiff’s contention, the ALJ’s RFC determination did 8 include specific postural limitations. The ALJ limited plaintiff to only “frequent” climbing 9 of stairs, kneeling, crouching, and crawling. This meant that plaintiff could perform these 10 postural activities no more than one to two-thirds of the workday. (See ECF No. 13-1 at 11 23-24, citing SSR 83-10 for the definition of “frequent.”) 12 In Social Security cases, the ALJ has a special, independent duty to develop the 13 record fully and fairly and to assure that the claimant’s interests are considered, and this 14 special duty exists even when the claimant is represented by counsel. See, e.g., Garcia v. 15 Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014); Tonapetyan v. Halter, 242 F.3d 16 1144, 1150 (9th Cir. 2001); Smolen, 80 F.3d at 1288 ; Brown v. Heckler, 713 F.2d 441 , 443 17 (9th Cir.1983). “The ALJ must develop the record when there is ambiguous evidence or 18 when the record is inadequate to allow for proper evaluation of the evidence.” McLeod v. 19 Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F.3d 453 , 20 459-60 (9th Cir. 2001)). Moreover, “[a] specific finding of ambiguity or inadequacy of the 21 record is not necessary to trigger this duty to inquire, where the record establishes 22 ambiguity or inadequacy.”). McLeod, 640 F.3d at 885 . 23 Here, at step two of the sequential evaluation process, the ALJ found, based on the 24 medical evidence of record, that one of plaintiff’s severe impairments was her obesity. As 25 discussed above, under the Commissioner’s regulations, an impairment is severe only if it 26 significantly limits the claimant’s physical or mental ability to do basic work activities. 27 See 20 C.F.R. § 405.1522 (a) (emphasis added). Basic work activities include “[p]hysical — 28 — 1 functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or 2 handling.” See 20 C.F.R. § 404.1522 (b). 3 The medical evidence before the ALJ did not include an opinion from any treating 4 or examining physician regarding plaintiff’s work-related limitations due to her obesity. 5 While the ME acknowledged at the administrative hearing that plaintiff would have 6 postural limitations because of her obesity, he did not specify what those postural 7 limitations would be and the ALJ did not follow up with any examination of him regarding 8 that issue. (See AR 50.) The Court finds that the ALJ’s failure to either follow up with 9 plaintiff’s treating doctors or the ME regarding plaintiff’s work-related limitations due to 10 her obesity (or order a consultative examination that would have encompassed that issue) 11 (a) constituted a violation of the ALJ’s special duty to fully and fairly develop the record, 12 and (b) resulted in a decision that was not supported by substantial evidence. See, e.g., 13 Molina v. Berryhill, 2018 WL 6421287 , at *4 (E.D. Cal. Dec. 6, 2018) (holding that ALJ’s 14 RFC determination was not supported by substantial evidence when ALJ made her own 15 evaluation of the functional limitations caused by the claimant’s diagnosed impairments 16 without further developing the record through a consultative examination); de Lopez v. 17 Astrue, 643 F. Supp. 2d 1178, 1184 (C.D. Cal. 2009) (holding that ALJ failed in his duty 18 to fully and fairly develop the record where the administrative record did not contain any 19 opinion by a treating or examining physician regarding the claimant’s RFC); Mendoza v. 20 Barnhart, 436 F. Supp. 2d 1110, 1116 (C.D. Cal. 2006) (same); see also Banks v. Barnhart, — 21 — 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) (“[T]he ALJ’s RFC determination or finding 22 must be supported by medical evidence, particularly the opinion of a treating or an 23 examining physician.”). Absent medical opinion evidence, the ALJ was not qualified to 24 make the determination he made. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 25 1975) (recognizing that an ALJ is “not qualified as a medical expert”). 26 // 27 // — 28 — 1 4. The ALJ should have developed the record further with respect to plaintiff’s 2 hearing loss. 3 As part of her fifth claim of error, plaintiff also contends that, in light of his step two 4 finding that plaintiff’s hearing loss constituted a severe impairment, the ALJ erred in failing 5 to adopt any functional limitations relating to that impairment. Plaintiff maintains that the 6 ALJ should not have relied upon the testimony of the ME, who acknowledged that he could 7 not interpret the audiograms of record. (See ECF No. 12-1 at 22-23, citing AR 51.) 8 Plaintiff also contends that the ALJ erred by failing to consider the following statement by 9 the Social Security interviewer in her May 28, 2013 Field Office Report (AR 388): “I could 10 tell she had a hearing impairment because she asked me to repeat myself a few times and 11 she was concentrating on my lips to help her understand what I was saying.” According to 12 plaintiff, the ALJ’s failure to even mention the observations of the Social Security 13 employee violated his duty under SSR 16-3p to “consider any statements in the record 14 noted by agency personnel who previously interviewed the individual.” (See ECF No. 1215 1 at 23.) 16 In response, the Commissioner contends that plaintiff’s argument that the ALJ’s 17 severity finding compelled limitations in plaintiff’s RFC is incorrect under the regulations 18 and Ninth Circuit precedent. (See ECF No. 13-1 at 22-23, citing Hoopai v. Astrue, 499 19 F.3d 1071 , 1076 (9th Cir. 2007) and Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219 , 20 1228-29 (9th Cir. 2009).) Further, according to the Commissioner, “the ALJ explained 21 that while [p]laintiff reported some difficulty in understanding, her hearing loss was noted 22 to be ‘mild’ at her most recent examination, she testified that her hearing aids worked well, 23 mental-status examinations revealed she had no difficulties in understanding or speaking, 24 and the record evidenced limited treatment for hearing, with no further treatment 25 recommended by her medical providers.” (ECF No. 13-1 at 23.) Finally, the 26 Commissioner contends that the ALJ’s duty under SSR 16-3p to consider statements by 27 agency employees did not mean that the ALJ had a duty to explicitly discuss such evidence. 28 (See id.) 1 The Court will address first the issue of whether reversal is warranted based on the 2 ALJ’s alleged violation of his duty under SSR 16-3p. “The ALJ’s general obligation under 3 SSR 16-3p to consider statements of agency personnel who interviewed the claimant does 4 not impose a duty to discuss every such statement on the records no matter the probative 5 value.” Ferdows v. Berryhill, 2018 WL 7501295 , at *2 (C.D. Cal. Oct. 10, 2018) (citing 6 Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)). Rather, the 7 ALJ need only explain why “significant probative evidence has been rejected.” See 8 Vincent, 739 F.2d at 1395 . In the Court’s view, the interviewer’s statement and observation 9 were probative of whether, during the period relevant to her benefits application (i.e., 10 March 2, 2012 through June 30, 2014), plaintiff’s medically determinable impairment of 11 hearing loss constituted a severe impairment. And, the ALJ did so find. However, in the 12 Court’s view, the interviewer’s statement and observation were not probative of whether, 13 when wearing her hearing aids, plaintiff’s hearing impairment prevented her from 14 performing any basic work activities or whether plaintiff had any functional limitations 15 relating to her hearing impairment. For one thing, it was unclear from the Field Office 16 Report whether plaintiff even was wearing hearing aids at the time of the interview. For 17 another, plaintiff acknowledged at the administrative hearing that, throughout the year 18 2014, which was after the Field Office interview, she had been gainfully employed at a 19 diner as a waitress and cashier. (See AR 56; see also AR 374, 381.) Accordingly, the 20 Court concurs with the Commissioner that reversal is not warranted based on the alleged 21 violation of SSR 16-3p. 22 As for plaintiff’s other contentions of error relating to her hearing impairment, the 23 Court finds that the Commissioner’s reliance on Hoopai and Bray is misplaced. Hoopai is 24 inapposite. The issue there was whether satisfaction of the step-two threshold requirement 25 that a claimant prove her limitations are severe was dispositive of the step-five 26 determination of whether the non-exertional limitations were sufficiently severe such as to 27 invalidate the ALJ’s exclusive use of the grids without the assistance of a vocational expert. 28 See Hoopai, 499 F.3d. at 1076. Bray is distinguishable. There, the claimant was 1 contending that, after the ALJ found that her adjustment disorder was a severe impairment 2 at step two, the ALJ had failed to account for that mental impairment in his final 3 construction of her RFC. The Ninth Circuit did observe that Bray had “offer[ed] no 4 authority to support the proposition that a severe mental impairment must correspond to 5 limitations on a claimant’s ability to perform basic work activities.” See Bray, 554 F.3d at 6 1228-29. However, unlike here, the ALJ’s RFC determination in Bray did include a 7 functional limitation relating to the severe impairment in question. Moreover, the medical 8 evidence of record in Bray included a medical opinion that the Ninth Circuit found 9 supported the ALJ’s conclusions that Bray’s mental impairments prevented her from 10 completing only the most complex tasks. See id. at 1229 . 11 Here, the medical evidence of record before the ALJ did not include an opinion from 12 any treating or examining physician regarding whether plaintiff had any work-related 13 limitations due to her hearing loss. Moreover, the Court concurs with plaintiff that the ALJ 14 could not properly rely upon the testimony of the ME regarding the severity of plaintiff’s 15 hearing impairment, since the ME acknowledged that he could not interpret the audiograms 16 of record. The Court also notes that, contrary to the Commissioner’s characterization, the 17 ALJ did not state that plaintiff’s hearing loss was noted to be “mild” at her most recent 18 examination. Rather, he stated that plaintiff “was assessed as having mild to profound 19 bilateral sensorineural hearing loss, relatively symmetric with bilateral intermittent 20 tinnitus.” (See AR 25, citing AR 918.) Also contrary to the Commissioner’s 21 characterization, the ALJ did not mention plaintiff’s mental-status examinations in his 22 discussion of plaintiff’s hearing loss. (See AR 25.) Although plaintiff did respond in the 23 affirmative at the administrative hearing, when the ALJ asked if her hearing aids seemed 24 to be working pretty well for her (see AR 63), plaintiff also claimed twice that she was 25 having some trouble hearing what was being said (see AR 52, 67). And, finally, the fact 26 that the record evidenced limited treatment for hearing with no further treatment 27 recommended by her medical providers begs the question of whether plaintiff had any 28 work-related limitations due to her hearing loss. 1 In the Court’s view, this is another instance of the ALJ failing in his duty to fully 2 and fairly develop the record, with the result that ALJ’s RFC determination cannot be found 3 to be supported by substantial evidence. — 4 — 5 CONCLUSION AND RECOMMENDATION 6 The law is well established that the decision whether to remand for further 7 proceedings or simply to award benefits is within the discretion of the Court. See, e.g., 8 Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599 , 9 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand for 10 further proceedings is warranted where additional administrative proceedings could 11 remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 12 1984); Lewin, 654 F.2d at 635 . Remand for the payment of benefits is appropriate where 13 no useful purpose would be served by further administrative proceedings, Kornock v. 14 Harris, 648 F.2d 525, 527 (9th Cir. 1980); where the record has been fully developed, 15 Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would 16 unnecessarily delay the receipt of benefits to which the disabled plaintiff is entitled, Bilby 17 v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). 18 The Court is mindful of Ninth Circuit authority for the proposition that, where an 19 ALJ failed to properly consider either subjective symptom testimony or medical opinion 20 evidence, it is sometimes appropriate to credit the evidence as true and remand the case for 21 calculation and award of benefits. See, e.g., Garrison v. Colvin, 759 F.3d 995 , 1019-21 22 (9th Cir. 2014). However, in Ghanim v. Colvin, 763 F.3d 1154, 1167 (9th Cir. 2014), a 23 case decided after Garrison, another Ninth Circuit panel did not apply or even 24 acknowledge the “credit as true” rule where substantial evidence did not support an ALJ’s 25 rejection of treating medical opinions and his adverse credibility determination; instead, 26 the panel simply remanded the case for further administrative proceedings. And, in Marsh 27 v. Colvin, 792 F.2d 1170 , 1173 (9th Cir. 2015), the panel did not apply or even 28 acknowledge the “credit as true” rule where the ALJ had failed to even mention a treating 1 |/source’s opinion that the claimant was “pretty much nonfunctional”; instead, the panel 2 ||simply remanded the case to afford the ALJ the opportunity to comment on the doctor’s 3 || opinions. 4 Here, even though none of plaintiffs claims of error is directed to the ALJ’s adverse 5 credibility determination, plaintiff conclusorily asserts that the Court “should credit the 6 || limitations alleged by [plaintiff] as true and award the benefits sought.” (See ECF No. 15 7 |{at 13.) In response, the Commissioner has argued that the proper remedy in the event of 8 ||reversal is a remand for further administrative proceedings. (See ECF No. 16-1 at 14-15.) 9 || The Court deems plaintiff's failure to adequately brief the issue of the appropriate remedy 10 failure to even reply to the Commissioner’s legal argument in this regard as a 11 concession to the correctness of the Commissioner’s position. 12 For the foregoing reasons, this Court RECOMMENDS that plaintiff’s motion for 13 ||summary judgment be GRANTED, that the Commissioner’s cross-motion for summary 14 ||judgment be DENIED, and that Judgment be entered reversing the decision of the 15 ||Commissioner and remanding this matter for further administrative proceedings pursuant 16 || to sentence four of 42 U.S.C. § 405 (g). 17 Any party having objections to the Court’s proposed findings and recommendations 18 ||shall serve and file specific written objections within 14 days after being served with a 19 of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections 20 should be captioned “Objections to Report and Recommendation.” A party may respond 21 ||to the other party’s objections within 14 days after being served with a copy of the 22 objections. See id. 23 IT IS SO ORDERED. — 24 — 25 ||Dated: January 21, 2020 Ka if Ww 26 □ ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE — 28 —