1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 IRENE S. A.,1 Case No. 20-cv-09361-RMI

9 Plaintiff,

ORDER RE: CROSS-MOTIONS FOR

10 v. SUMMARY JUDGMENT

11 KILOLO KIJAKAZI, Re: Dkt. Nos. 15, 16 12 Defendant.

13 14 Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying her 15 application for disability insurance benefits under Title II of the Social Security Act. See Admin. 16 Rec. at 15-24.2 Plaintiff’s request for review of the ALJ’s unfavorable decision was denied by the 17 Appeals Council (see id. at 1-5), thus, the ALJ’s decision is the “final decision” of the 18 Commissioner of Social Security which this court may review. See 42 U.S.C. §§ 405(g), 19 1383(c)(3). Both Parties have consented to the jurisdiction of a magistrate judge (dkts. 7, 8), and 20 both parties have moved for summary judgment (dkts. 15, 16). For the reasons stated below, 21 Plaintiff’s motion for summary judgment is granted, and Defendant’s motion is denied. 22 LEGAL STANDARDS 23 The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be 24 conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set 25

26 1 Pursuant to the recommendation of the Committee on Court Administration and Case Management of the 27 Judicial Conference of the United States, Plaintiff’s name is partially redacted. 1 aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal 2 error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The phrase 3 “substantial evidence” appears throughout administrative law and directs courts in their review of 4 factual findings at the agency level. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 5 Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as 6 adequate to support a conclusion.” Id. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 7 197, 229 (1938)); see also Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In 8 determining whether the Commissioner’s findings are supported by substantial evidence,” a 9 district court must review the administrative record as a whole, considering “both the evidence 10 that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. 11 Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where 12 evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 13 679 (9th Cir. 2005). 14 PROCEDURAL HISTORY 15 In December of 2017, Plaintiff filed an application for Title II benefits alleging an onset 16 date of April 13, 2014 (which was later amended to April 11, 2015). AR at 15. On August 9, 2019, 17 an ALJ entered an unfavorable decision, finding Plaintiff not disabled. See id. at 15-24. In October 18 of 2020, the Appeals Council denied Plaintiff’s request for review. Id. at 1-5. Two months later, in 19 December of 2020, Plaintiff sought review in this court (see Compl. (dkt. 1) at 1-2) and the instant 20 case was initiated. 21 SUMMARY OF THE RELEVANT EVIDENCE 22 Plaintiff raises three claims, two of which assert that the ALJ improperly evaluated the 23 medical opinions and Plaintiff’s testimony. See Pl.’s Mot. (dkt. 15-1) at 15-21. Plaintiff’s third 24 claim assigns error to the formulation of the residual functioning capacity (“RFC”), however, for 25 the reasons stated below, the court will not reach any of these claims because the court’s 26 independent review of the record has unearthed a series of threshold errors at step two that require 27 a remand for further proceedings through which Plaintiff’s other claims can also be addressed. 1 regarding the step two evaluation, as well as the ALJ’s errors regarding the development of the 2 record. 3 Plaintiff has repeatedly been diagnosed with fibromyalgia3 and trigger finger4 of the right 4 middle finger. See AR at 307-09, 311-12, 313-14, 315, 318, 319, 322, 324, 326, 328, 330, 332, 5 351-55, 381, 388, 390, 393, 396, 398, 400, 402, 404, 406, 408, 410, 451-54. She has also been 6 repeatedly diagnosed with osteoarthrosis, knee and leg sprain, lumbosacral spondylosis, and 7 lumbosacral joint ligament sprain. See id. at 334, 336, 338, 339, 341, 343, 345, 347, 349, 351, 381, 8 388, 452 (describing Plaintiff’s chronic pain and her inability to properly ambulate). Plaintiff has 9 also been repeatedly diagnosed with enthesopathy5 at an unspecified site, coupled with unspecified 10 rheumatism6 and fibrosis7. See AR at 339-40, 341, 343, 345, 347, 349. She has also been 11 diagnosed with chronic right shoulder calcific tendonitis, right shoulder impingement, and one or 12 more tears in the rotator cuff muscles in the same shoulder. Id. at 415-16. She has also been 13 assessed as suffering from lumbago (pain in the muscles of the lower back), muscle spasms, and a 14 cervical sprain. See id. at 442. 15 // 16

17 3 See Benecke v. Barnhart, 379 F.3d 587, 589-90 (9th Cir. 2004) (explaining that common symptoms of 18 fibromyalgia “include chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue associated with this disease.”). 19 4 Also known as stenosing tenosynovitis – this condition is caused when inflammation narrows the space 20 within the sheath that surrounds the tendon in the affected finger. Its symptoms include finger stiffness, tenderness, and finger locking in a bent position coupled with an inability to straighten the affected joint. 21 See website of the Mayo Clinic, available at: https://www.mayoclinic.org/diseases-conditions/trigger- finger/symptoms-causes/syc-20365100 (last checked, 09/21/2022 at 12:35 pm). 22 5 Enthesopathy is a disorder of the entheses, which are the connective tissues between bones and tendons or 23 ligaments. Enthesopathy occurs when these tissues have been damaged due to overuse, injury, or infection. See generally Alvarez, Armando, and Tiu, Timothy K., Enthesopathies, available on the website of the 24 National Library of Medicine at the National Institute of Health: https://www.ncbi.nlm.nih.gov/books/NBK559030/ (last checked, 09/21/2022 at 12:38 pm). 25 6 Rheumatism is broadly defined as any disease marked by inflammation and pain in the joints, muscles, or 26 fibrous tissue, especially rheumatoid arthritis. See https://www.merriam-webster.com/dictionary/rheumatism (last checked, 09/21/2022 at 12:40 pm). 27 7 Fibrosis is defined as a thickening and scarring of connective tissue, usually as a result of injury. See 1 THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY 2 A person filing a claim for social security disability benefits (“the claimant”) must show 3 that she has the “inability to do any substantial gainful activity by reason of any medically 4 determinable physical or mental impairment” which has lasted or is expected to last for twelve or 5 more months. See 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909. The ALJ must consider all evidence in 6 the claimant’s case record to determine disability (see id. § 416.920(a)(3)), and must use a five- 7 step sequential evaluation process to determine whether the claimant is disabled (id. § 416.920; 8 see also id. at § 404.1520). While the claimant bears the burden of proof at steps one through four 9 (see Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020)), “the ALJ has a special duty to fully and 10 fairly develop the record and to assure that the claimant’s interests are considered.” Brown v. 11 Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Here, the ALJ appropriately set forth the applicable 12 law regarding the required five-step sequential evaluation process. AR at 16-17. 13 At step one, the ALJ must determine if the claimant is presently engaged in “substantial 14 gainful activity,” 20 C.F.R. § 404.1520(a)(4)(i), which is defined as work done for pay or profit 15 and involving significant mental or physical activities. See Ford, 950 F.3d at 1148. Here, the ALJ 16 determined Plaintiff had not performed substantial gainful activity during the relevant period. AR 17 at 21. At step two, the ALJ decides whether the claimant’s impairment or combination of 18 impairments is “severe” (see 20 C.F.R. § 404.1520(a)(4)(ii)), “meaning that it significantly limits 19 the claimant’s ‘physical or mental ability to do basic work activities.’” Ford, 950 F.3d at 1148 20 (quoting 20 C.F.R. § 404.1522(a)). If no severe impairment is found, the claimant will not be 21 found to be disabled. 20 C.F.R. § 404.1520(c). Here, the ALJ determined Plaintiff had the 22 following severe impairments: degenerative joint disease of the cervical spine; obesity; and, 23 sclerotic lesion on the right humeral head. AR at 17. The ALJ found the following conditions to be 24 non-severe: Plaintiff’s right knee pain, her fibromyalgia, and her myofascial pain syndrome. Id. at 25 18. 26 At step three, the ALJ is tasked with evaluating whether the claimant has an impairment or 27 combination of impairments that meet or equal an impairment in the “Listing of Impairments.” See 1 impairments that are considered to be sufficiently severe to prevent any individual so afflicted 2 from performing any gainful activity. Id. at § 404.1525(a). Each impairment is described in terms 3 of “the objective medical and other findings needed to satisfy the criteria of that listing.” Id. at § 4 404.1525(c)(3). In order for a claimant to show that his or her impairment matches a listing, it 5 must meet all of the specified medical criteria; and, an impairment that manifests only some of 6 those criteria, no matter how severely, does not “meet” that listing. See Sullivan v. Zebley, 493 7 U.S. 521, 530 (1990). If an impairment either meets the listed criteria, or if one or more 8 impairments are determined to be medically equivalent to the severity of that set of criteria, that 9 person is conclusively presumed to be disabled without a consideration of age, education, or work 10 experience. See 20 C.F.R. § 404.1520(d). Here, the ALJ determined Plaintiff did not have an 11 impairment or combination of impairments that meets or equals the criteria or the severity of any 12 of the listings. See AR at 18-19. 13 If a claimant does not meet or equal a listing, the ALJ must formulate the claimant’s RFC, 14 which is defined as the most that a person can still do despite the limitations associated with their 15 impairments. See 20 C.F.R. § 404.1545(a)(1). Here, the ALJ determined that Plaintiff retained the 16 ability to perform work at the light exertional level except that she can occasionally climb ramps 17 and stairs; she can occasionally stoop, kneel, crouch, and crawl; and, she can frequently reach, 18 handle, finger, and feel. See AR at 19-23. Following the formulation of the RFC, the ALJ must 19 determine – at step four – whether the claimant is able to perform her past relevant work, which is 20 defined as “work that [the claimant has] done within the past 15 years, that was substantial gainful 21 activity, and that lasted long enough for [the claimant] to learn to do it.” See 20 C.F.R. § 22 404.1560(b)(1). If the ALJ determines, based on the RFC, that the claimant can perform her past 23 relevant work, the claimant will not be found disabled. Id. § 404.1520(f). Otherwise, at step five, 24 the burden shifts to the agency to prove that the claimant can perform a significant number of 25 other jobs that are available in the national economy. See Ford, 950 F.3d at 1149. To meet this 26 burden, the ALJ may rely on the Medical-Vocational Guidelines (commonly referred to as “the 27 grids”), 20 C.F.R. Pt. 404 Subpt. P, App. 2; or, alternatively, the ALJ may rely on the testimony of 1 opinion testimony in response to hypothetical questions about whether a person with the physical 2 and mental limitations imposed by the claimant’s medical impairment(s) can meet the demands of 3 the claimant’s previous work, either as the claimant actually performed it or as generally 4 performed in the national economy, or the demands of other jobs that may be available in the 5 national economy. See 20 C.F.R. § 404.1560(b)(2). An ALJ may also use other resources for this 6 purpose, such as the Dictionary of Occupational Titles (“DOT”). Id. Here, the ALJ determined – 7 based on the VE’s testimony – that Plaintiff could perform her past relevant positions as a card 8 room attendant II, and as a data processing auditor. See AR at 23-24. Accordingly, the ALJ 9 determined that Plaintiff had not been disabled at any time during the relevant period. Id. at 24. 10 DISCUSSION 11 As mentioned above,8 at step two, the ALJ found that Plaintiff’s severe impairments were 12 limited to: degenerative disc disease of the cervical spine, obesity, and sclerotic lesion on the right 13 humeral head. Id. at 17. The ALJ also ventured to analyze Plaintiff’s right knee pain but found the 14 condition to be non-severe stating that “there is insufficient clinical or diagnostic evidence to show 15

16 8 Although no party has raised a step two error, or asserted that the ALJ failed to properly develop the 17 record, the court can, and should, raise and address those issues sua sponte because the court has an independent duty to determine whether the ALJ’s findings (in every regard) are supported by substantial 18 evidence – and to take any consequentially necessary action. See Sims v. Apfel, 530 U.S. 103, 110 (2000) (explaining that an appeal from the denial of Social Security benefits is quite unlike ordinary civil litigation 19 because the underlying claims process before the ALJ is not adversarial). While claimants must carry the burden of demonstrating that they qualify for benefits, the law does not leave them entirely to their own 20 devices; as such, lapses and omissions in pleading or procedure cannot be relied upon to withhold or delay benefits from a claimant who may otherwise be entitled to them. See Tackett v. Apfel, 180 F.3d 1094, 1098 21 n.3 (9th Cir. 1999). While a plaintiff must make his or her own arguments for remand, that does not relieve this court of its independent duty to undertake a fulsome and searching review of the facts in order to 22 render a thoroughgoing and independent determination as to whether the ALJ’s findings are supported by substantial evidence, as well as ascertaining the upshot of such a determination. See Stone v. Heckler, 761 23 F.2d 530, 532 (9th Cir. 1985). Thus, the failure by Plaintiff or her counsel to raise an error is not an acceptable reason for a court to actively ignore it. See Ariz. State Dep’t of Pub. Welfare v. Dep’t of Health, 24 Educ. & Welfare, 449 F.2d 456, 472 (9th Cir. 1971); Hess v. Sec’y of Health, Educ. & Welfare, 497 F.2d 837, 840 (3d Cir. 1974); see also Moran v. Astrue, 569 F.3d 108, 112 (2nd Cir. 2009). Other courts faced 25 with this issue have arrived at a similar conclusion. See e.g., Farley v. Colvin, 231 F. Supp. 3d 335, 339-41 (N.D. Cal. 2017) (collecting cases); see also Cortes v. Berryhill, No. 3:16-cv-01910 (JCH), 2018 U.S. Dist. 26 LEXIS 45256, 2018 WL 1392903, at *2-6 (D. Conn. March 19, 2018); Peterson v. Comm’r of Soc. Sec., No. 16-2912, 2018 U.S. Dist. LEXIS 26355, 2018 WL 953345, at *1 n.1 (D. N.J. Feb. 20, 2018); Taylor- 27 Tillotson v. Colvin, No. 13-80907-CIV-WM, 2014 U.S. Dist. LEXIS 177510, 2014 WL 7211888, at *13 (S.D. Fl. Dec. 18, 2014); Mangan v. Colvin, No. 12 C 7203, 2014 U.S. Dist. LEXIS 120515, 2014 WL 1 she has any functional limitations related to that condition.” Id. at 118. As for fibromyalgia, the 2 ALJ concluded that Plaintiff does not have this condition because “the record did not show the 3 claimant had the requisite 11 tender points for a valid diagnosis of [fibromyalgia] syndrome.” Id. 4 In this regard, the ALJ added that “[w]hile there is a limited diagnosis of [fibromyalgia] in [the] 5 clinical record, the diagnosing sources failed to establish that the required ACR criteria were met 6 or to exclude other co-occurring conditions to explain the claimant’s subjective allegations.” Id. In 7 short, by way of a general statement, the ALJ related that “these conditions either do not meet the 8 durational requirements, are not medically determinable impairments, or otherwise no more than 9 minimally affect the claimant’s ability to perform basic work functions.” Id. As to the fourteen 10 other conditions mentioned above – trigger finger, osteoarthrosis, knee and leg sprain, lumbosacral 11 spondylosis, lumbosacral joint ligament sprain, enthesopathy, rheumatism, fibrosis, chronic right 12 shoulder calcific tendonitis, right shoulder impingement, and rotator cuff muscle tears, lumbago, 13 muscle spasms, and cervical sprain – the ALJ’s decision failed to even mention, let alone analyze, 14 these conditions at step two or beyond, or to appropriately develop the record as to the limitations 15 occasioned by each of these conditions. The upshot of these errors is to undermine any confidence 16 in the correctness of all of the ALJ’s determinations from step three onwards. 17 Step two’s evaluation is a de minimis test intended to weed out patently groundless claims 18 and the most minor of impairments. See Bowen v. Yuckert, 482 U.S. 137, 153-154 (1987); Edlund 19 v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2005) (stating that the step two inquiry is a de 20 minimis screening device to dispose of groundless claims) (quoting Smolen v. Chater, 80 F.3d 21 1273, 1290 (9th Cir. 1996)); Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (step two is a 22 “de minimis threshold”). An impairment is non-severe at step two only if the evidence establishes 23 a slight abnormality that has only a minimal effect on an individual’s ability to work. Smolen, 80 24 F.3d at 1290. As for the fourteen impairments that the ALJ omitted from this analysis, those errors 25 cannot be suggested to be harmless because a review of the ALJ’s decision makes it clear that 26 none of those conditions were considered at step three, or during the formulation of the RFC, or 27 beyond; in other words, the omission of the fourteen conditions from the sequential analysis 1 significant limitations attending those conditions). Stout v. Comm’r, Soc. Sec., 454 F.3d 1050, 2 1055 (9th Cir. 2006) (explaining that an error is harmless only if it is not prejudicial to the 3 claimant, or is otherwise inconsequential to the ALJ's ultimate non-disability determination). 4 As for the conditions that the ALJ did analyze but found to be non-severe (right knee pain) 5 or not medically determined (fibromyalgia), the ALJ erred in those regards as well. First, contrary 6 to the ALJ’s incorrect determination that Plaintiff’s right knee pain was attended with “insufficient 7 clinical or diagnostic evidence to show she has any functional limitations related to that condition” 8 (see AR at 18), there is ample record evidence of exactly such “clinical or diagnostic evidence.” 9 See id. at 334, 336, 338, 339, 341, 343, 345, 347, 349, 351, 381, 388. Furthermore, in July of 10 2019, Plaintiff’s treating physician, Christian Bocobo, M.D., rendered a number of conclusions 11 regarding Plaintiff’s right knee pain (having already repeatedly diagnosed her with right knee and 12 leg sprains) – specifically, he found: (1) that Plaintiff experiences chronic pain in her right knee; 13 (2) that she cannot climb even a few stairs at a reasonable pace with use of only a single hand rail; 14 (3) that she cannot walk the distance of a city block at a reasonable pace on rough or uneven 15 surfaces; (4) that she is unable to ambulate effectively; (5) that she cannot use standard public 16 transportation because of her inability to climb onto the bus or to engage in the typical jostling and 17 jousting that is ordinarily associated with being a bus passenger; (6) that the condition is expected 18 to last 12 months or longer; and, (6) that Plaintiff is not a malingerer. See id. at 452. Accordingly, 19 as to Plaintiff’s right knee pain, the ALJ’s step two error was founded upon a misapprehension of 20 the record evidence. 21 Regarding Plaintiff’s fibromyalgia, in spite of Plaintiff steadily being diagnosed with that 22 condition by more than one physician on numerous occasions (see id. at 307-09, 311-12, 313-14, 23 315, 318, 319, 322, 324, 326, 328, 330, 332, 351-55, 381, 388, 390, 393, 396, 398, 400, 402, 404, 24 406, 408, 410, 451-54), the ALJ yielded to the temptation to play doctor and concluded that 25 Plaintiff does not have fibromyalgia because her doctors did not consistently identify at least 11 26 tender points across her body. See id. at 18. See generally Benecke, 379 F.3d at 594 (where a 27 plaintiff consistently reports fibromyalgia symptoms and her rheumatologist diagnoses her with 1 out of sheer disbelief); see also Contreras v. Astrue, 378 Fed. App’x 656, 658 (9th Cir. 2010) 2 (Regarding documentation of the tender points, the appellate court has expressly stated that “this 3 Court has not required documentation of a fibromyalgia diagnosis at that level of specificity.”); 4 Dillon v. Astrue, 2010 U.S. Dist. LEXIS 72240, 2010 WL 2850910, *6 (C.D. Cal. July 19, 2010) 5 (finding the ALJ erred in rejecting a physician’s diagnoses of fibromyalgia because their records 6 did not note the number of tender points). 7 Under Social Security Ruling (“SSR”) 12-2p, 2012 SSR LEXIS 1, when finding 8 fibromyalgia to be a medically determinable impairment, the Commissioner does not rely on a 9 physician’s diagnosis alone; instead, that provision states that “[t]he evidence must document that 10 the physician reviewed the person’s medical history and conducted a physical examination,” and 11 for fibromyalgia to be considered a medically determinable impairment, a claimant must have (1) 12 a history of widespread pain; (2) at least 11 tender points; and (3) evidence “that other disorders 13 that could cause the symptoms or signs were excluded.” See SSR 12-2p, 2012 SSR LEXIS 1. It 14 should be noted, however, that “Social Security Rulings do not have the force of law,” (see Quang 15 Van Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989)), and (as mentioned) the Ninth Circuit 16 Court of Appeals has explained that it is not necessary for a physician to provide documentation 17 identifying the specific number and location of the tender points in order for a fibromyalgia 18 diagnosis to be considered a medically determinable impairment. See Contreras, 378 Fed. Appx. 19 at 657. Therefore, the ALJ erred at step two – in contravention of these authorities – by finding 20 Plaintiff’s fibromyalgia to be the product of an invalid diagnosis. This error was compounded by 21 failing to account for Plaintiff’s well-documented states of widespread pain, coupled with 10 22 tender points (at least during one treatment session) (see AR at 18), when engaging in the step 23 three analysis or when formulating the RFC. Thus, the ALJ incorrectly applied the law when 24 determining that Plaintiff did not have fibromyalgia. 25 As mentioned above, the ALJ’s step two errors – incorrectly evaluating two impairments, 26 and effectively ignoring more than a dozen more – were compounded by the ALJ’s failure to 27 properly develop the record as to any of these impairments. Because administrative proceedings in 1 and fairly develop the record such as to assure that the claimant’s interests are considered. See 2 generally Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). This duty is incumbent on 3 the ALJ even when the claimant is represented by counsel. Mayes v. Massanari, 276 F.3d 453, 4 459 (9th Cir. 2001). An ALJ’s duty to engage in even further record development is triggered 5 when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation 6 of the evidence – as is the case here. Id. (citing Tonapetyan, 242 F.3d at 1150). Where the duty 7 arises, the ALJ may discharge it “in several ways, including: subpoenaing the claimant’s 8 physicians, submitting questions to the claimant’s physicians, continuing the hearing, or keeping 9 the record open after the hearing to allow supplementation of the record.” Id. 10 On remand, the ALJ is ORDERED to convene another hearing at which the court expects 11 Plaintiff (and any other interested witnesses) to be questioned at length regarding the limitations 12 she experiences as a result of each of the above-discussed impairments. The ALJ is ORDERED 13 to either subpoena Dr. Bocobo to testify at that hearing, or to send questionnaire(s) to Dr. Bocobo 14 (and any other physician that has participated in diagnosing Plaintiff with any impairment 15 discussed herein), such as to pose an exhaustive and thorough list of questions regarding the 16 limitations attending each and every impairment discussed herein. Thereafter, unless Plaintiff is 17 found disabled, the ALJ is FURTHER ORDERED to modify any ensuing opinion to properly 18 evaluate and weigh all medical opinions and to provide any ensuing explanations for such 19 evaluations in compliance with the case authorities (set forth below) that have interpreted the 20 regulations applicable to Plaintiff’s pre-2017 application.9 21 Under the cases interpreting the regulations applicable to Plaintiff’s application (filed, as it 22 was, in December of 2016), medical opinions are “distinguished by three types of physicians: (1) 23 those who treat the claimant (treating physicians); (2) those who examine but do not treat the 24 claimant (examining physicians); and (3) those who neither examine nor treat the claimant 25 (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The medical 26 opinion of a treating provider is given “controlling weight” so long as it “is well-supported by 27 1 medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the 2 other substantial evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2); see also 3 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). In cases where a treating doctor’s opinion is 4 not controlling, the opinion is weighted according to factors such as the nature and extent of the 5 treatment relationship, as well as the consistency of the opinion with the record. 20 C.F.R. § 6 404.1527(c)(2)-(6); Revels, 874 F.3d at 654. As to areas of specialization, greater weight is 7 generally accorded to the opinion of a specialist than to the opinion of a non-specialist. See Orn v. 8 Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (“Additional factors relevant to evaluating any medical 9 opinion . . . include . . . the specialty of the physician providing the opinion.”); see also Reed v. 10 Massanari, 270 F.3d 838, 845 (9th Cir. 2001). In order “[t]o reject [the] uncontradicted opinion of 11 a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported 12 by substantial evidence.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) 13 (alteration in original) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). “If a 14 treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may 15 only reject it by providing specific and legitimate reasons that are supported by substantial 16 evidence.” Id. (quoting Bayliss, 427 F.3d at 1216); see also Reddick v. Chater, 157 F.3d 715, 725 17 (9th Cir. 1998) (“[The] reasons for rejecting a treating doctor’s credible opinion on disability are 18 comparable to those required for rejecting a treating doctor’s medical opinion.”). “The ALJ can 19 meet this burden by setting out a detailed and thorough summary of the facts and conflicting 20 clinical evidence, stating his [or her] interpretation thereof, and making findings.” Magallanes v. 21 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th 22 Cir. 1986)). Further, “[t]he opinion of a nonexamining physician cannot by itself constitute 23 substantial evidence that justifies the rejection of the opinion of either an examining physician or a 24 treating physician.” Lester, 81 F.3d at 831; see also Revels, 874 F.3d at 654-55; Widmark v. 25 Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006); Morgan v. Comm’r, 169 F.3d 595, 602 (9th 26 Cir. 1999); see also Erickson v. Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 1993). In situations where a 27 Plaintiff’s condition progressively deteriorates, the most recent medical report is the most 1 As for the evaluation of Plaintiff’s testimony in any ensuing opinion, the ALJ is directed to 2 ensure that the following standards are adhered to when explaining how Plaintiff’s testimony was 3 evaluated. When a claimant has medically documented impairments that “might reasonably 4 produce the symptoms or pain alleged and there is no evidence of malingering, the ALJ must give 5 ‘specific, clear, and convincing reasons for rejecting’ the testimony by identifying ‘which 6 testimony [the ALJ] found not credible’ and explaining ‘which evidence contradicted that 7 testimony.’” Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) (quoting Brown-Hunter v. 8 Colvin, 806 F.3d 487, 489, 494 (9th Cir. 2015)). “This is not an easy requirement to meet: ‘the 9 clear and convincing standard is the most demanding required in Social Security cases.’” Garrison 10 v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 11 F.3d 920, 924 (9th Cir. 2002)). “The ALJ may consider inconsistencies either in the claimant’s 12 testimony or between the testimony and the claimant’s conduct.” Molina v. Astrue, 674 F.3d 1104, 13 1112 (9th Cir. 2012) (superseded by regulation on unrelated grounds). Also, while an ALJ cannot 14 reject the severity of subjective complaints merely due to the lack of corroborating objective 15 evidence, the ALJ may nonetheless look to the medical record for inconsistencies. See Morgan v. 16 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999) (finding that “[t]he ALJ 17 provided clear and convincing reasons for rejecting [Plaintiff’s] testimony” by “point[ing] to 18 specific evidence in the record—including reports by [Plaintiff’s doctors]—in identifying what 19 testimony was not credible and what evidence undermined [Plaintiff’s] complaints”). 20 Lastly, the following is an explanation of the reasons that the court declines to reach the 21 three claims raised by Plaintiff. Initially, because it appears likely that the nature of Plaintiff’s 22 asserted claims will substantially change on remand, there is no need to discuss them as currently 23 formulated. Alternatively, because the case is already being remanded for further proceedings on 24 the ground that the ALJ erred at step two and did not properly develop the record, the court finds it 25 unnecessary to address Plaintiff’s remaining issues as they can adequately be addressed on remand 26 because any favorable rulings thereto will not secure for Plaintiff any relief beyond what has 27 already been granted. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we 1 ground for remand.”). 2 As for Plaintiff’s request for a remand for calculation and payment of benefits – that 3 request is DENIED as the court finds that the record is not fully developed and that further 4 administrative proceedings are indeed necessary – especially because the ALJ’s sequential 5 analysis ended with the step four finding that Plaintiff could perform her past relevant work. See 6 AR at 22-23. Thus, while Plaintiff notes that a doctor opined that Plaintiff should be expected to 7 be absent from work more than four times per month (see Pl.’s Mot. (dkt. 15-1) at 22-23), neither 8 the ALJ nor Plaintiff’s counsel properly developed the record, as might be necessary in this 9 regard, by asking the VE the implications for someone missing work that often. See AR at 50-55. 10 Furthermore, as to the details attending Dr. Bocobo’s opinion that Plaintiff should be expected to 11 miss four or more days of work per month – Dr. Bocobo simply checked a box to that effect on a 12 form (see id. at 454). Since the court’s decision to remand for immediate payment of benefits 13 requires the court to do so only when there are no lingering doubts about Plaintiff’s disability, and 14 also only in situations when further record development is unnecessary, the court cannot conclude 15 that the instant case presents such circumstances. Putting aside the fact that no one bothered to ask 16 the VE the upshot of Plaintiff missing four or more days of work per month – the court believes 17 that Dr. Bocobo’s statement to the effect that Plaintiff would be absent that often itself needs 18 further record development such that the record might clearly reflect the nature and extent of 19 Plaintiff’s limitations associated with each of her impairments. In addition to the need for the 20 record to be clear as to what limitations are associated with which impairment, the record should 21 also clearly reflect the durational aspects of each set of limitations. 22 In any event, as to Plaintiff’s other claims, on remand the Commissioner is ORDERED to 23 consider the issues raised in Plaintiff’s briefing and to modify any ensuing ALJ opinion such as to 24 clearly reflect the fact that all the issues raised in this case by Plaintiff have been considered and 25 addressed under the standards and pursuant to the case authorities set forth herein. See Cortes v. 26 Colvin, No. 2:15-cv-02277-GJS, 2016 U.S. Dist. LEXIS 40580, 2016 WL 1192638, at *4 (C.D. 27 Cal. Mar. 28, 2016); Cochran v. Berryhill, No. 3:17-cv-00334-SB, 2017 U.S. Dist. LEXIS 1 LEXIS 52225, at *16-17 (N.D. Cal. Mar. 19, 2021). 2 CONCLUSION 3 Accordingly, Plaintiff's Motion for Summary Judgment (dkt. 15) is GRANTED, 4 || Defendant’s Cross-Motion (dkt. 16) is DENIED, and the case is remanded for further proceedings 5 consistent with the findings and conclusions set forth herein. 6 IT IS SO ORDERED. 7 Dated: September 29, 2022 8 9

R@BERT M. ILLMAN

10 United States Magistrate Judge 11 12

13

15 16

= 17

Z 18

19 20 21 22 23 24 25 26 27 28