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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

9 10 NANCY VALENCIA, ) Case No. CV 19-06109-AS 11 ) Plaintiff, ) MEMORANDUM OPINION AND 12 ) v. ) ORDER OF REMAND ) 13 ANDREW SAUL, Commissioner ) of the Social Security ) 14 Administration, ) ) 15 Defendant. ) ) 16 17 For the reasons discussed below, IT IS HEREBY ORDERED that, 18 pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is remanded 19 for further administrative action consistent with this Opinion. 20 21 PROCEEDINGS 22 23 On July 16, 2019, Plaintiff filed a Complaint seeking review of the 24 denial of her applications for Disability Insurance Benefits and Supplemental Security Income. (Docket Entry No. 1). The parties have 25 consented to proceed before the undersigned United States Magistrate 26 Judge. (Docket Entry Nos. 11-12). On December 12, 2019, Defendant 27 filed an Answer along with the Administrative Record (“AR”). (Docket 1 Entry Nos. 15-16). On April 8, 2020, the parties filed a Joint 2 Stipulation (“Joint Stip.”) setting forth their respective positions 3 regarding Plaintiff’s claims. (Docket Entry No. 19). 4 5 The Court has taken this matter under submission without oral 6 argument. See C.D. Cal. L.R. 7-15. 7 8 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 9 10 On July 19, 2016, Plaintiff, formerly employed as a personal banker 11 and as a bank teller supervisor (see AR 43-44, 164, 170-72, 178-80), 12 filed applications for Disability Insurance Benefits and Supplemental 13 Security Income, alleging a disability since November 7, 2014. (See AR 14 20, 142-43). Plaintiff’s applications were denied initially on 15 September 15, 2016. (See AR 74-78).

16 On June 19, 2018, the Administrative Law Judge (“ALJ”), Paul 17 Coulter, heard testimony from Plaintiff, represented by counsel, and 18 vocational expert Alan Ey. (See AR 40-51). On July 25, 2018, the ALJ 19 issued a decision denying Plaintiff’s requests for benefits. (See AR 20 20-30). Applying the five-step sequential process, the ALJ found at 21 step one that Plaintiff had not engaged in substantial gainful activity 22 since November 7, 2014. (AR 22). At step two, the ALJ determined that 23 Plaintiff had the following severe impairments “fibromyalgia; bilateral 24 lower extremity polyneuropathy and peripheral neuropathy; migraine 25 headaches; asthma; carpal tunnel syndrome; [and] right de Quervain 26 27 1 tenosynovitis”. (AR 22).1 At step three, the ALJ determined that 2 Plaintiff did not have an impairment or combination of impairments that 3 met or equaled the severity of one of the listed impairments. (AR 23). 4 The ALJ then assessed Plaintiff’s residual functional capacity 5 (“RFC”)2 and concluded that Plaintiff could perform sedentary work3 with 6 the following limitations: can lift, carry, push and pull 20 pounds 7 occasionally and 10 pounds frequently; can stand or walk for about 6 8 hours in an 8-hour workday; can sit for about 6 hours in an 8-hour 9 workday; can perform postural activities occasionally, but cannot climb 10 ladders, ropes or scaffolds; can perform right fingering frequently; and 11 must avoid concentrated exposure to respiratory irritants such as fumes, 12 odors, dust and gases. (AR 23-29). 13 14 At step four, the ALJ determined that Plaintiff was able to perform 15 past relevant work as a customer service representative as generally 16 performed. (AR 29-30). Accordingly, the ALJ found that Plaintiff was 17 not disabled within the meaning of the Social Security Act. (AR 30). 18 19 1 The ALJ found that Plaintiff’s other impairments –- history 20 of angioedema, history of bell’s palsy, history of left foot reconstruction –- were non-severe, and that Plaintiff’s complaint of a 21 history of anxiety was not a medically determinable mental impairment. (AR 23). 22 2 A Residual Functional Capacity is what a claimant can still do 23 despite existing exertional and nonexertional limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 24 3 “Sedentary work involves lifting no more than 10 pounds at a 25 time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one 26 which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if 27 walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a). 3 1 The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on May 20, 2019. (See AR 1-5). Plaintiff now seeks 2 judicial review of the ALJ’s decision, which stands as the final 3 decision of the Commissioner. See 42 U.S.C. § 405(g), 1383(c). 4 5 6 STANDARD OF REVIEW 7 This Court reviews the Commissioner’s decision to determine if it 8 is free of legal error and supported by substantial evidence. See 9 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial 10 evidence” is more than a mere scintilla, but less than a preponderance. 11 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine 12 whether substantial evidence supports a finding, “a court must consider 13 the record as a whole, weighing both evidence that supports and evidence 14 that detracts from the [Commissioner’s] conclusion.” Id. As a result, 15 “[w]here the evidence can reasonably support either affirming or 16 reversing [the ALJ’s] decision, [a court] may not substitute [its] 17 judgment for that of the [ALJ].” Id. at 1010 (citations omitted).4 18 19

PLAINTIFF’S CONTENTIONS

20 21 Plaintiff contends that the ALJ erred in failing to properly 22 consider (1) the opinion of Plaintiff’s treating physician; and (2) 23 24 25 4 The harmless error rule applies to the review of 26 administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 27 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors that are harmless). 4 1 Plaintiff’s subjective symptom testimony. (See Joint Stip. at 4-10, 19- 2 25, 32-33). 3 4 DISCUSSION 5 6 After consideration of the record as a whole, the Court finds that 7 Plaintiff’s first claim of error warrants a remand for further consideration. Since the Court is remanding the matter based on 8 Plaintiff’s first claim of error, the Court will not address Plaintiff’s 9 second claim of error. 10

11 A. The ALJ Failed To Provide Clear and Convincing Reasons For 12 Rejecting Dr. Su’s Opinion 13 14 Plaintiff asserts that the ALJ failed to properly reject the 15 opinion of her treating physician, Dr. Su. (See Joint Stip. at 4-10, 16 19-20). Defendant asserts that the ALJ properly evaluated Dr. Su’s 17 opinion. (See Joint Stip. at 11-19). 18 19 1. Legal Standard 20 21 An ALJ must take into account all medical opinions of record. 20 22 C.F.R. § 404.1527(b).5 “Generally, a treating physician’s opinion 23 5 Since Plaintiff filed her applications before March 27, 2017, 24 20 C.F.R. §§ 404.1527 and 416.927 applies. For applications filed on or after March 27, 2017, 20 C.F.R. §§ 404.1520c and 416.920c would 25 apply. 20 C.F.R. § 404.1520c and 416.920c changed how the Social Security Administration considers medical opinions and prior 26 administrative medical findings, eliminated the use of the term “treating source,” and eliminated deference to treating source medical 27 opinions. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a); L.R. v. Saul, (continued...) 5 1 carries more weight than an examining physician’s, and an examining 2 physician’s opinion carries more weight than a reviewing physician’s.” 3 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also 4 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The medical 5 opinion of a treating physician is given “controlling weight” so long 6 as it “is well-supported by medically acceptable clinical and laboratory 7 diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2). 8 “When a treating doctor’s opinion is not controlling, it is weighted 9 according to factors such as the length of the treatment relationship 10 and the frequency of examination, the nature and extent of the treatment 11 relationship, supportability, and consistency of the record.” Revels 12 v. Berryhill, 874 F.3d at 654; see also 20 C.F.R. § 404.1527(c)(2)-(6). 13 14 If a treating or examining doctor’s opinion is not contradicted by 15 another doctor, the ALJ can reject the opinion only for “clear and 16 convincing reasons.” Carmickle v. Commissioner, 533 F.3d 1155, 1164 17 (9th Cir 2008); Lester, 81 F.3d at 830. If the treating or examining 18 doctor’s opinion is contradicted by another doctor, the ALJ must provide 19 “specific and legitimate reasons” that are supported by substantial 20 evidence in the record for rejecting the opinion. Orn v. Astrue, 495 21 F.3d 625, 632 (9th Cir. 2007); Reddick v. Chater, 157 F.3d 715, 725 (9th 22 Cir. 1998); Lester, supra. “The ALJ can meet this burden by setting out 23 a detailed and thorough summary of the facts and conflicting clinical 24 25 5 (...continued) 26 2020 WL 264583, at *3 n. 5 (C.D. Cal. Jan. 17, 2020); Golightly v. Saul, 2020 WL 1916874, at *6 n. 5 (D. S.C. April 7, 2020); see also 82 Fed. 27 Reg. 5844, at 5852 (January 18, 2017); 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). 6 1 evidence, stating his interpretation thereof, and making findings.” 2 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017)(citation 3 omitted). Finally, an ALJ may reject an opinion of any physician that 4 is conclusory, brief, and unsupported by clinical findings. Bayliss v. 5 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2015); Thomas v. Barnhart, 278 6 F.3d 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 7 (9th Cir. 2001). 8 2. Dr. Su 9 10 Tien-I Karleen Su, M.D., at the Amicus Arthritis and Osteoporosis 11 Center, Inc. - Rheumatology, treated Plaintiff from October 13, 2016 12 through January 11, 2018. (See AR 360-62 [October 13, 2016: diagnosing, 13 inter alia, “[f]ibromyalgia associated with short term memory deficits 14 and polyarthralgia”]6, 357-59 [December 9, 2016: same diagnosis, plus 15 opiate use for chronic pain], 354-56 [March 16, 2017: same diagnoses], 16 351-53 [June 22, 2017: same diagnoses, plus “[u]nrestful sleep 17 associated with fatigue” and “bilateral shoulder pain, left worse”], 18 348-50 [September 29, 2017: same fibromyalgia and unrestful sleep 19 diagnoses, plus “bilateral shoulder pain, related to fibromyalgia,” “2nd 20 trimester intrauterine pregnancy” and discontinued opiate use in July 21 2017], 345-47 [January 11, 2018: same diagnoses, except “3rd trimester 22 intrauterine pregnancy”]). 23 24 25 26 6 Plaintiff was first diagnosed with fibromyalgia on November 27 30, 2015. (See AR 24, 254-55). 1 On November 21, 2016, Dr. Su completed a check-the-box form 2 entitled “Medical Opinion re: Ability to Do Work-Related Activities 3 (Physical),” (see AR 342-44), indicating that Plaintiff could do the 4 following: lift and carry 10 pounds occasionally and less than 10 5 pounds frequently; stand and walk (with normal breaks) less than 2 hours 6 in an 8-hour workday; sit less than 2 hours in an 8-hour workday; can 7 stand for 5 minutes and sit for 10 minutes before needing to change 8 positions; needs to walk around every 45 minutes for 5 minutes; needs 9 to shift at will from sitting or standing/walking; and needs to lie down 10 at unpredictable intervals every 3 to 4 hours. (AR 342-43). Dr. Su 11 described the medical findings supporting these limitations as “Severe fibromyalgia with constant pain not adequately responding to 12 conventional therapy including prescription meds. Peripheral 13 neuropathy.” (AR 343). Dr. Su checked boxes indicating that Plaintiff 14 was able to twist and climb stairs occasionally, never stoop (bend), 15 crouch and climb ladders, and was unable to perform the physical 16 functions of reaching (including overhead), handling (gross 17 manipulation), fingering (fine manipulation), feeling or pushing/pulling 18 due to severe pain and paresthesia. (Id.). Dr. Su described the 19 medical findings supporting these limitations as laboratory, 20 electromagnetic testing, and clinical assessment. (Id.). Dr. Su also 21 indicated that Plaintiff needs to avoid all exposure to hazards 22 (machinery, heights, etc.) and fumes, odors, dusts, gases, poor 23 ventilation, etc., concentrated exposure to extreme cold, extreme heat 24 and noise, and even moderate exposure to wetness, since such exposures 25 “cause flare-up of patient’s fibromyalgia pain.” (AR 344). Dr. Su 26 stated that Plaintiff’s ability to perform her job duties could be 27 8 1 affected by her memory loss related to fibromyalgia and difficulty 2 concentrating and that Plaintiff had difficulty writing and typing for 3 prolonged periods due to her pain and paresthesia. (Id.). Dr. Su also 4 stated that Plaintiff’s impairments likely would cause Plaintiff to be 5 absent from work more than three days a month. (Id.). 6 7 3. The AlJ’s Findings 8 The ALJ gave “little weight” to Dr. Su’s opinion, finding it to be: 9 (1) inconsistent with the medical evidence, specifically, clinical 10 records reflecting normal sensory and motor control findings and the 11 absence of findings confirming atrophy, gait abnormalities or mobility 12 issues; (2) inconsistent with the October 2017 statements of another 13 treating physician, Munther Hijazin, M.D., about Plaintiff’s condition; 14 and (3) inconsistent with Dr. Su’s own statements in and after December 15 2016 about Plaintiff’s condition. (See AR 25-26). 16 17 Since Dr. Su’s opinion about Plaintiff’s limitations was not 18 contradicted by the opinions of other physicians,7 the “clear and 19 convincing” standard applies to the ALJ’s rejection of Dr. Su’s opinion 20 in these areas. See Trevizo, 871 F.3d at 675. 21 22 23 7 The ALJ stated he was not considering the September 14, 2016 24 opinion of the State Agency medical consultant, S. King, SDM (see AR 57- 59, 67-69) in determining Plaintiff’s RFC. (AR 26) 25 26 27 1 As set forth below, the ALJ failed to provide clear and convincing 2 reasons for rejecting Dr. Su’s Opinion. 3 4 4. Analysis 5 6 The ALJ found Dr. Su’s opinion that Plaintiff was unable to sustain 7 even the minimal demands of sedentary work to be inconsistent with the medical record which reflected normal examination findings concerning 8 Plaintiff’s gait, atrophy, sensory, motor, and extremities (AR 25). See 9 Dr. Hijazin’s examinations on August 31, 2016 [AR 462], January 26, 2107 10 [AR 464], May 26, 2107 [AR 466], October 5, 2017 [AR 468], and March 1, 11 2018 [AR 470]; and Dr. Constant Chan’s progress notes on August 4, 2015 12 [AR 510-11], August 13, 2015 [AR 508-09], November 30, 2015 [AR 506-07], 13 January 5, 2016 [AR 504-05], February 29, 2016 [AR 502-03], March 1, 14 2016 [AR 500-01], March 22, 2016 [AR 498-99], and December 6, 2016 [AR 15 493-96]. 16 17 Fibromyalgia, “a rheumatic disease that causes inflammation of the 18 fibrous connective tissue components of muscles, tendons, ligaments, and 19 other tissue,” is a recognized medical condition that cannot be 20 demonstrated by diagnostic tests or other objective medical evidence. 21 See Benecke v. Barnhart, 379 F.3d 587, 589-90 (9th Cir. 2004)(Typical 22 fibromyalgia symptoms include “chronic pain throughout the body, 23 multiple tender points, fatigue, stiffness, and a pattern of sleep 24 disturbance that can exacerbate the cycle of pain and fatigue associated 25 with this disease.”; Fibromyalgia is “diagnosed entirely on the basis 26 of patients’ reports of pain and other symptoms” because “there are no 27 laboratory tests to confirm the diagnosis.”); Revels v. Berryhill, 874 1 F.3d 648, 656-57 (9th Cir. 2017)(“[T]here is an absence of symptoms that 2 a lay person may ordinarily associate with joint and muscle pain.”; 3 “[D]iagnosis of fibromyalgia does not rely on X-rays or MRIs.”); see 4 also Social Security Ruling (“SSR”) 12-2p.8 Fibromalgia sufferers have 5 normal muscle strength, sensory functions, and reflexes, normal 6 appearing joints, no objective joints swelling, and “an absence of 7 symptoms that a lay person may ordinarily associate with joint and muscle pain.” Revels, 874 F.3d at 656 (citations omitted). 8 9 Dr. Su provided Plaintiff with long-term treatment for diagnosed 10 fibromyalgia -- which the ALJ found to be a severe impairment (AR 22). 11 All of Dr. Su’s physical examinations revealed Plaintiff had most if not 12 all fibromyalgia tender points. (See AR 426 [October 13, 2016: 16/18 13 tender points for fibromyalgia], 423 [December 9, 2016: same], 420 14 [March 16, 2017: same], 417 [June 22, 2017: same], 413 [September 29, 15 16 8 SSR 12-2p, which was issued in 2012, recognized fibromyalgia 17 as a valid “basis for a finding of disability.” SSR 12-2p, at *2. Prior to this ruling, there was considerable debate about whether a 18 fibromyalgia impairment could render a claimant disabled for Social Security purposes. See Revels, 874 F.3d at 656 (describing SSR 12-2p as 19 a “sea-change” in the law). 20 There are two acceptable sets of criteria for diagnosing fibromyalgia, based on the 1990 American College of Rheumatology 21 Criteria for the Classification of Fibromyalgia and the 2010 American College of Rheumatology Preliminary Diagnostic Criteria. See SSR 12-2p, 22 at *2-*3; Revels, supra. These criteria basically involve finding that the patient has experienced widespread pain, the manifestation of particular symptoms associated with fibromyalgia –- such as fatigue, 23 depression, or the presence of certain points of tenderness –- and the absence of other disorders that would account for the pain. See SSR 12- 24 2p, at *2-*3; Revels, supra. ALJs are urged to consider “a longitudinal record whenever possible” because “the symptoms of fibromyalgia ‘wax and 25 wane,’ and . . . a person may have ‘bad days and good days.’” Revels, 874 F.3d at 657 (quoting SSR 12-2p)). 26 27 1 2017: 18/18 tender points for fibromyalgia], 410 [January 11, 2018: 2 same). Since the physical examination findings of normal gait, sensory 3 functions, motor and extremities “are perfectly consistent with 4 debilitating fibromyalgia,” Revels, 874 F.3d at 666, inconsistency with 5 the medical record was not a clear and convincing reason for discounting 6 Dr. Su’s opinion. 7 The ALJ also discounted Dr. Su’s opinion because it was 8 inconsistent with Dr. Hijazin’s statement, on October 5, 2017, that 9 Plaintiff “is doing well” and that Plaintiff “is off all medication” (AR 10 469). (AR 25-26). 11 12 The ALJ seems to have taken Dr. Hijazin’s statement that Plaintiff 13 “is doing well” out of context. See Holohan, 246 F.3d at 1205 (“[The 14 treating physician’s] statements must be read in the context of the 15 overall diagnostic picture he draws.”). Although on October 5, 2017, 16 Dr. Hijazin, a neurologist at Prentice, Mitri, Hijazin Neurological 17 Associates, noted that Plaintiff had been diagnosed with fibromyalgia, 18 it appears that Dr. Hijazin was not treating Plaintiff’s fibromyalgia. 19 (See AR 468-69; see also AR 462-67, 470-71, 360 [Dr. Su’s October 13, 20 2016 treatment note: “Sees Dr. Hijazin for neuropathy.”]). In contrast 21 to Dr. Hijazin’s description about Plaintiff’s condition, Dr. Hijazin’s 22 October 5, 2017 treating note, as well as Dr. Su’s October 13, 2016 23 treating note reflect that Plaintiff was in pain. (See AR 468, 360-61). 24 Moreover, none of Dr. Hizajin’s other treating notes state that 25 Plaintiff was doing well. (See AR 460-67, 470-71 [June 2, 2016, August 26 31, 2016, January 26, 2017, May 26, 2017, and March 1, 2018]). See 27 Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th 2014)(improper for an ALJ to 1 cherry-pick from a physician’s “characterizations of [the claimant’s] 2 rapport and demeanor”). 3 4 In addition, contrary to the ALJ’s assertion (see AR 25-26), Dr. 5 Hizajin’s October 5, 2017 statement that Plaintiff was “off all 6 medication” was not related to her ability to perform exertional 7 activities. Rather, as Dr. Hizajin noted, Plaintiff was off medication because she was pregnant. (See AR 468; see also AR 348 [notations in 8 Dr. Su’s September 29, 2017 treating notes indicate that Plaintiff had 9 stopped taking medications for fibromyalgia since July 2017, was 10 presently only taking prenatal vitamins, and that Plaintiff’s 11 discontinuance of her medications had caused her severe pain], 346 12 [notation in Dr. Su’s January 11, 2018 treating notes that after 13 Plaintiff delivers her baby she would like to resume her medications for 14 her fibromyalgia). Therefore, inconsistencies with Dr. Hizajin’s 15 October 5, 2017 statement was not a clear and convincing reason for 16 discounting Dr. Su’s opinion. 17

18 The ALJ also gave Dr. Su’s November 2016 opinion little weight 19 because Dr. Su’s statement that Plaintiff was not responding to 20 conventional therapy, including medication (see AR 343 [November 21, 21 2016: “Severe fibromyalgia with constant pain not adequately responding 22 to conventional therapy including prescription med[ication]”] was 23 contradicted by Dr. Su’s statements, beginning in December 2016, that 24 Plaintiff’s fibromyalgia was stable and partially relieved with 25 Cymbalta. (AR 26). See AR 358 [December 9, 2016: Fibromyalgia 26 “[p]ersistent but stable. Partial relief with Cymbalta.”], 355 [March 27 16, 2017: Fibromyalgia “[p]ersistent but stable. Partial relief with 1 Cymbalta.”], 352 [June 22, 2017: Fibromyalgia “[p]ersistent. Partial 2 relief with Cymbalta and gabapentin.”]. 3 4 Inconsistencies in a treating physician’s reports can serve as a 5 valid basis to discount the treating physician’s opinion. See Morgan 6 v. Commissioner of Social Sec. Admin., 169 F.3d 595, 603 (9th Cir. 7 1999). However, there was no contradiction between Dr. Su’s November 21, 2016 statement that Plaintiff’s fibromyalgia was “not adequately 8 responding to conventional therapy, including prescription med[ication]” 9 and Dr. Su’s post-November 21, 2016 statements that Plaintiffs 10 fibromyalgia was “persistent but stable” and that Plaintiff obtained 11 partial relief with Cymbalta. Prior to Dr. Su’s November 21, 2016 12 statement, there was no evidence in the record that Plaintiff’s 13 fibromyalgia adequately responded with treatment, including medication. 14 (See e.g., AR 304-06, 321-22, 327-28, 360-62). Since Dr. Su prescribed 15 Cymbalta to Plaintiff on October 13, 2016 (AR 361), Dr. Su would not 16 have known how Plaintiff responded to Cymbalta until December 9, 2016, 17 the next date on which Dr. Su treated Plaintiff (see AR 357-59). 18 Moreover, as Plaintiff asserts (see Joint Stip. at 8), Dr. Su’s post- 19 November 21, 2016 statements that Plaintiff’s fibromyalgia was “stable” 20 and that Plaintiff got partial relief from Cymbalta does not, in 21 isolation, demonstrate that Plaintiff was adequately responding to 22 conventional therapy, including medication. Accordingly, this was not 23 a clear and convincing reason, supported by substantial evidence in the 24 record, for giving Dr. Su’s opinion little weight. 25 // 26 // 27 // 1 B. Remand Is Warranted 2 3 The decision whether to remand for further proceedings or order an 4 immediate award of benefits is within the district court’s discretion. 5 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 6 useful purpose would be served by further administrative proceedings, 7 or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. 8 at 1179 (“[T]he decision of whether to remand for further proceedings 9 turns upon the likely utility of such proceedings.”). However, where, 10 as here, the circumstances of the case suggest that further 11 administrative review could remedy the Commissioner’s errors, remand is 12 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 13 Harman v. Apfel, 211 F.3d at 1179-81. 14 15 Since the ALJ failed to properly reject Plaintiff’s treating 16 physician’s opinion, remand is appropriate. Because outstanding issues 17 must be resolved before a determination of disability can be made, and 18 “when the record as a whole creates serious doubt as to whether the 19 [Plaintiff] is, in fact, disabled within the meaning of the Social 20 Security Act,” further administrative proceedings would serve a useful 21 purpose and remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th 22 Cir. 2014)(citations omitted). 23 // 24 // 25 // 26 27 1 ORDER 2 3 For the foregoing reasons, the decision of the Commissioner is 4 reversed, and the matter is remanded for further proceedings pursuant 5 to Sentence 4 of 42 U.S.C. § 405(g). 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 DATED: July 6, 2020 9 10 11 /s/

ALKA SAGAR

12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27