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`Case 3:20-cv-05339-DWC Document 19 Filed 11/16/20 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
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`LEE P.,
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`
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`v.
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`Plaintiff,
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`COMMISSIONER OF SOCIAL
`SECURITY,
`
`CASE NO. 3:20-CV-5339-DWC
`
`ORDER REVERSING AND
`REMANDING DEFENDANT’S
`DECISION TO DENY BENEFITS
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`
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`Defendant.
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`I.
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`INTRODUCTION
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`Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the
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`Commissioner of Social Security’s (“Commissioner”) denial of Plaintiff’s application for
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`disability insurance benefits. Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure
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`73 and Local Rule MJR 13, the parties have consented to have this matter heard by the
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`undersigned Magistrate Judge. See Dkt. 2.
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`After considering the record, the Court concludes the Administrative Law Judge
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`(“ALJ”) erred in evaluating Plaintiff’s testimony and lay testimony from Plaintiff’s mother. The
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`ALJ did not harmfully err in rejecting the opinions of treating psychologist Richard Rinehart,
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 1
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`Case 3:20-cv-05339-DWC Document 19 Filed 11/16/20 Page 2 of 15
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`M.D. The Court declines to address whether the ALJ erred in refusing to allow Plaintiff to cross-
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`examine non-examining doctors, as that issue can be dealt with on remand based on any new
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`evidence presented. Accordingly, this matter is reversed and remanded pursuant to sentence four
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`of 42 U.S.C. § 405(g) to the Commissioner for further proceedings consistent with this Order.
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`II.
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`FACTUAL AND PROCEDURAL HISTORY
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`Plaintiff applied for disability insurance benefits in August 2018, alleging disability as of
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`June 30, 2017, later amended to July 31, 2018. See Dkt. 14, Admin. Record (“AR”), 17, 91–92,
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`132, 231–32. The application was denied on initial administrative review, and on
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`reconsideration. See AR 130–60. A hearing was held before ALJ Malcolm Ross on August 28,
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`2019. See AR 86–129. In a decision dated November 29, 2019, ALJ Ross determined Plaintiff
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`to be not disabled. See AR 17–28. The Appeals Council denied review. See AR 1–4.
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`III.
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`STANDARD OF REVIEW
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`Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of
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`social security benefits if the ALJ’s findings are based on legal error or not supported by
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`substantial evidence in the record as a whole. Ford v. Saul, 950 F.3d 1141, 1153–54 (9th Cir.
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`2020) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)).
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`IV. DISCUSSION
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`A. Whether the ALJ Reasonably Rejected Plaintiff’s Testimony
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`Plaintiff contends the ALJ failed to give clear and convincing reasons for discounting
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`Plaintiff’s subjective symptom testimony.1 See Dkt. 16, Pl. Op. Br., pp. 12–16. Plaintiff
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`1 Defendant argues in a footnote that Plaintiff failed to challenge the ALJ’s evaluation of
`his physical impairments. See Dkt. 17, Def. Resp. Br., p. 2 n.2. This is inaccurate, as Plaintiff
`challenged the ALJ’s determination that Plaintiff received only conservative treatment for his
`physical impairments, and that Plaintiff’s daily activities are inconsistent with his physical
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 2
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`Case 3:20-cv-05339-DWC Document 19 Filed 11/16/20 Page 3 of 15
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`testified he suffered from posttraumatic stress disorder (“PTSD”) due to his work in the military.
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`AR 99. He testified his PTSD made it difficult to get along with coworkers, follow simple
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`directions, respond appropriately to supervisors, or concentrate. See AR 97–98, 112–13, 300–01,
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`339, 344. Plaintiff testified the pressure of quotas when he worked as a military recruiter put
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`substantial stress on him. AR 99.
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`Plaintiff testified he has radiating pain down his arms. AR 97. He testified it was painful
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`to sit due to neck pain. AR 106–07, 114–15, 295, 300. He testified he can sit for about an hour,
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`and would then need 30 minutes of stretching before he could sit back down. AR 111. He
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`reported pain in his shoulder and low back prevent him standing for long periods of time. AR
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`339. He testified he cannot walk for more than two blocks. Id.
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`The Ninth Circuit has “established a two-step analysis for determining the extent to
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`which a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664,
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`678 (9th Cir. 2017). The ALJ must first determine whether the claimant has presented objective
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`medical evidence of an impairment that “‘could reasonably be expected to produce the pain or
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`other symptoms alleged.’” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir.
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`2014). At this stage, the claimant need only show the impairment could reasonably have caused
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`some degree of the symptoms; he does not have to show the impairment could reasonably be
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`expected to cause the severity of the symptoms alleged. Id. The ALJ found Plaintiff met this
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`first step. See AR 23.
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`If the claimant satisfies the first step, and there is no evidence of malingering, the ALJ
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`may only reject the claimant’s testimony “‘by offering specific, clear and convincing reasons for
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`symptom testimony. See Dkt. 16, pp. 13–16. The Court thus considers the ALJ’s evaluation of
`Plaintiff’s testimony regarding the severity of his mental and physical symptoms.
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 3
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`Case 3:20-cv-05339-DWC Document 19 Filed 11/16/20 Page 4 of 15
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`doing so. This is not an easy requirement to meet.’” Trevizo, 871 F.3d at 678 (quoting Garrison,
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`759 F.3d at 1014-15). In evaluating the ALJ’s determination at this step, the Court may not
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`substitute its judgment for that of the ALJ. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989).
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`As long as the ALJ’s decision is supported by substantial evidence, it should stand, even if some
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`of the ALJ’s reasons for discrediting a claimant’s testimony fail. See Tonapetyan v. Halter, 242
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`F.3d 1144, 1148 (9th Cir. 2001).
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`The ALJ rejected Plaintiff’s testimony regarding the severity of his impairments. See AR
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`23–25. The ALJ reasoned Plaintiff’s neck and shoulder pain were inconsistent with the level of
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`treatment he received and normal exam findings. AR 23. The ALJ reasoned Plaintiff’s mental
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`health symptoms were inconsistent with the majority of mental status exam findings, and
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`evidence Plaintiff’s symptoms were controlled with medication. AR 24. The ALJ reasoned
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`Plaintiff’s testimony was inconsistent with his functioning as shown by his daily activities. AR
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`24–25. The ALJ reasoned Plaintiff’s testimony was undermined by inconsistencies in his reports
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`regarding possible causes of his PTSD. AR 24.
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`1.
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`The ALJ Erred in Rejecting Plaintiff’s Neck and Shoulder Pain Testimony as
`Inconsistent with His Level of Treatment and Providers’ Exam Findings
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`The ALJ erred in rejecting Plaintiff’s testimony regarding the severity of his neck and
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`shoulder symptoms based on his level of treatment and allegedly mild symptoms. The treatment
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`Plaintiff received included multiple steroid injections, physical therapy, and electric stimulation.
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`See AR 1869, 1889, 2877–84, 2890, 2906, 2920, 2933. Plaintiff at one point opted for more
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`conservative treatment over surgery. See AR 2848. But the treatment he received could not
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`actually be called conservative such that it undermined Plaintiff’s testimony as to the severity of
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`his neck and shoulder pain. See Garrison, 759 F.3d at 1015 n.20 (“[W]e doubt that epidural
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`steroid shots to the neck and lower back qualify as ‘conservative’ medical treatment.”); Kager v.
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 4
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`Case 3:20-cv-05339-DWC Document 19 Filed 11/16/20 Page 5 of 15
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`Astrue, 256 F. App’x 919, 923 (9th Cir. 2007) (finding error where the ALJ discounted the
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`plaintiff’s testimony based on a lack of significant pain therapy, when the plaintiff had been
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`prescribed opioid medications).
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`The ALJ similarly erred in rejecting Plaintiff’s neck and shoulder pain testimony based
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`on normal exam findings. An ALJ may reject a claimant’s symptom testimony when it is
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`contradicted by the medical evidence. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d
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`1155, 1161 (9th Cir. 2008) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995)). But
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`the ALJ must explain how the medical evidence contradicts the claimant’s testimony. See
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`Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The evidence to which the ALJ pointed
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`does not contradict Plaintiff’s complaints regarding the severity of his pain, as imaging showed
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`cervical spine abnormalities, and Plaintiff continued to report neck pain. See, e.g., AR 2815–17,
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`3162, 3190. That Plaintiff showed normal range of motion, strength, and sensation at several
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`examinations does not refute his claims that he has pain in his neck and shoulders.
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`2.
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`The ALJ Erred in Rejecting Plaintiff’s Mental Health Symptom Testimony as
`Inconsistent with Mental Status Exam Findings in the Record and Based on the
`Determination that Plaintiff’s Symptoms were Controlled with Medication
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`The ALJ erred in rejecting Plaintiff’s testimony regarding the severity of his mental
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`health symptoms as inconsistent with the majority of mental status exam findings in the record.
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`The ALJ noted Plaintiff had PHQ-9 scores that ranged from indicating mild to severe symptoms.
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`AR 24. The ALJ also noted Plaintiff had restricted mood and affect on some exams, but other
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`findings were generally within normal limits. Id. Many of these normal findings the ALJ cited
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`were very basic, such as statements that Plaintiff had “appropriate demeanor, [and] normal
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`speech,” and made during exams focused on treating Plaintiff’s neck pain. AR 2898, 2903–04,
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`2912, 2918, 2927, 2931, 2942, 2947. These findings do not clearly or convincingly contradict
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 5
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`Case 3:20-cv-05339-DWC Document 19 Filed 11/16/20 Page 6 of 15
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`Plaintiff’s testimony that he had difficulty getting along with coworkers, following simple
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`directions, responding appropriately to supervisors, and concentrating.
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`The ALJ also erred in rejecting Plaintiff’s mental symptom testimony based on a finding
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`that his symptoms were controlled with medication. “Impairments that can be controlled
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`effectively with medication are not disabling for the purpose of determining eligibility for [social
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`security disability] benefits.” Warre ex rel. E.T. IV v. Comm’r of Soc. Sec. Admin., 439 F.3d
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`1001, 1006 (9th Cir. 2006). But “‘[t]here can be a great distance between a patient who responds
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`to treatment and one who is able to enter the workforce . . . .’” Garrison, 759 F.3d at 1017 n.23
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`(quoting Scott v. Astrue, 647 F.3d 734, 739–40 (7th Cir. 2011)). “Reports of improvement in the
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`context of mental health must be interpreted with an understanding of the patient’s overall well-
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`being and the nature of [his] symptoms” as well as “an awareness that improved functioning
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`while being treated and while limiting environmental stressors does not always mean that a
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`claimant can function effectively in a workplace.” Garrison, 759 F.3d at 1017 (internal
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`The evidence to which the ALJ cited does not establish Plaintiff’s symptoms were
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`controlled to the point that he could reenter the workforce. For example, the ALJ cited to a
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`record from June 2018 indicating Plaintiff had improved mood and anxiety. See AR 2664. Two
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`months later, however, the same provider noted Plaintiff “continues to struggle with anxiety,
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`[and] irratability [sic].” AR 2659. Another record to which the ALJ cited indicated Plaintiff was
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`better able to deal with his ex-partner, but continued to have significant anxiety and difficulty
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`being around strangers and crowds. See AR 2979. Finally, it appears at least some of Plaintiff’s
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`improvement was due to the fact that he had stopped working, as one doctor noted Plaintiff’s
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`anxiety was “[i]mproved since not working.” AR 2987.
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 6
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`Case 3:20-cv-05339-DWC Document 19 Filed 11/16/20 Page 7 of 15
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`3.
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`The ALJ Erred in Rejecting Plaintiff’s Testimony as Inconsistent with His Daily
`Activities
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`The ALJ erred in rejecting Plaintiff’s testimony as inconsistent with his functioning as
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`demonstrated by his daily activities. An ALJ may reject a plaintiff’s symptom testimony based
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`on his daily activities if they contradict his testimony or “meet the threshold for transferable
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`work skills.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair, 885 F.2d at 603).
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`However, “the mere fact that a plaintiff has carried on certain daily activities, such as grocery
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`shopping, driving a car, or limited walking for exercise, does not in any way detract from [his]
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`credibility as to [his] overall disability. One does not need to be ‘utterly incapacitated’ in order
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`to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (quoting Fair, 885 F.2d
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`at 603). The ALJ reasoned Plaintiff could walk, drive a car, go shopping, spend time with
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`family, go to church, handle his personal care, care for his cat, prepare meals, and handle his own
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`finances. AR 24. The ALJ provided no analysis to show how these activities contradict
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`Plaintiff’s statements or show transferable work skills.
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`4.
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`The ALJ Erred in Rejecting Plaintiff’s Testimony Based on Inconsistent
`Statements Regarding PTSD
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`Finally, the ALJ erred in rejecting Plaintiff’s testimony based on allegedly inconsistent
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`statements regarding the cause of Plaintiff’s PTSD. Plaintiff testified he had been a military
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`recruiter tasked with recruiting medical professionals. AR 94–95. He testified his PTSD was
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`due to “being put in combat situations, being put in stressful situations that basically just, as a
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`recruiter, they tear you down.” Id. He further testified to substantial pressure due to recruitment
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`quotas. AR 99–100. The ALJ took issue with Plaintiff’s claims of being in “combat,” and noted
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`times in which Plaintiff denied having PTSD. AR 24.
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 7
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`Case 3:20-cv-05339-DWC Document 19 Filed 11/16/20 Page 8 of 15
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`The ALJ erred in rejecting Plaintiff’s testimony based on inconsistencies regarding his
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`involvement in combat. When asked if he had been in combat, Plaintiff replied, “Yes, I was. I
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`was in Kuwait and also Qatar. . . . And then also I was in El Salvador too.” AR 100. This is
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`consistent with the record. See AR 612, 645, 650, 2874, 2993. The ALJ found this testimony
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`inconsistent, pointing to treatment notes the ALJ believed showed Plaintiff “denied combat
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`deployments.” AR 24. But Plaintiff did not deny combat deployments, he denied participating
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`in combat activity when asked in the context of a hearing loss exam. See AR 1068. Any
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`inconsistency here was due to ambiguous terminology, and such inconsistency is not a clear and
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`convincing reason to reject Plaintiff’s testimony.
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`Similarly, the ALJ erred in rejecting Plaintiff’s testimony based on his allegedly
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`inconsistent reports of PTSD. The ALJ noted two instances in which Plaintiff denied PTSD,
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`both of which occurred before the onset date, and at appointments intended to treat conditions
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`unrelated to Plaintiff’s mental health. See AR 24, 485–88, 552–54. Neither statement is a
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`convincing reason to reject Plaintiff’s overall testimony.
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`In sum, the ALJ failed to provide any clear and convincing reasons for rejecting
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`Plaintiff’s testimony regarding the severity of his neck and shoulder pain or his mental health
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`symptoms. The ALJ therefore harmfully erred.
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`B. Whether the ALJ Reasonably Rejected Plaintiff’s Mother’s Testimony
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`Plaintiff contends the ALJ failed to give germane reasons for discounting Plaintiff’s
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`mother’s testimony. See Dkt. 16, pp. 10–12. Plaintiff’s mother, who was mistakenly identified
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`as his son, submitted two written statements. See AR 26, 311–18, 331–38. Her statements
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`mirrored Plaintiff’s testimony. See AR 97–115, 295–300, 311–18, 331–38. She reported
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`Plaintiff had extreme anxiety during stressful situations. AR 311. She testified Plaintiff had
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 8
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`Case 3:20-cv-05339-DWC Document 19 Filed 11/16/20 Page 9 of 15
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`difficulty sitting and standing due to leg, back, neck, and shoulder pain. AR 311, 316. She
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`testified Plaintiff was “[e]motionally unable to answer questions and to deal with people in
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`general.” AR 331. Plaintiff’s mother testified Plaintiff could “only lift 30–50 lbs.,” and stand,
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`bend, squat, or kneel for 20–30 minutes at a time. AR 336.
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`In determining disability, “‘an ALJ must consider lay witness testimony concerning a
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`claimant’s ability to work.’” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Stout
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`v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006)). The ALJ must “give reasons
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`germane to each witness” before he can reject such lay witness evidence. Molina v. Astrue, 674
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`F.3d 1104, 1111 (9th Cir. 2012) (internal citations and quotation marks omitted). “Further, the
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`reasons ‘germane to each witness’ must be specific.” Bruce, 557 F.3d at 1115 (quoting Stout,
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`The ALJ rejected Plaintiff’s mother’s testimony because he found the opinions of the
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`non-examining doctors more persuasive. AR 26. The Commissioner concedes this was error,
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`but asserts it was harmless because Plaintiff’s mother’s testimony mirrored Plaintiff’s, so the
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`reasons given to reject Plaintiff’s testimony apply with equal force to Plaintiff’s mother’s
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`testimony. Dkt. 17, p. 7. As discussed above, however, the ALJ erred in rejecting Plaintiff’s
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`testimony. See supra Part IV.A. The ALJ’s reasons for rejecting Plaintiff’s testimony therefore
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`cannot apply to Plaintiff’s mother’s testimony. Consequently, the ALJ harmfully erred in
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`rejecting Plaintiff’s mother’s testimony.
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`C. Whether the ALJ Reasonably Rejected Dr. Rinehart’s Opinions
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`Plaintiff contends the ALJ erred in rejecting Dr. Rinehart’s opinions. See Dkt. 16, pp. 2–
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`10. Dr. Rinehart was one of Plaintiff’s treating psychiatrists. See AR 2657–66, 2759–69, 2973–
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`81, 3186–88, 3212–13. Dr. Rinehart submitted a medical source statement opining Plaintiff had
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 9
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`Case 3:20-cv-05339-DWC Document 19 Filed 11/16/20 Page 10 of 15
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`a trauma or stress-related disorder. AR 3151. Dr. Rinehart opined Plaintiff had marked
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`limitations in all areas involving understanding, remembering, or applying information, and
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`concentrating, persisting, and maintaining pace. AR 3153–54. Dr. Rinehart opined Plaintiff had
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`marked to extreme limitations in all areas involving interacting with others. Id. Dr. Rinehart
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`opined Plaintiff had marked, moderate, and no or mild limitations in adapting or managing
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`himself. AR 3154.
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`The ALJ rejected Dr. Rinehart’s opinions. AR 26. The ALJ reasoned (1) Dr. Rinehart’s
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`opinions were inconsistent with or unsupported by his own exam notes, which indicated
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`significant improvement with medication, and mental status exams within normal limits; (2) Dr.
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`Rinehart’s opinions were inconsistent with or unsupported by the overall medical record, which
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`also showed normal findings on mental exam; (3) Dr. Rinehart relied on a diagnosis of PTSD,
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`but Plaintiff made inconsistent statements about combat exposure; (4) Dr. Rinehart’s opinions
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`were largely uniform, “indicat[ing] a lack of thoughtful completion” of the form on which he
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`stated his opinions; and (5) Dr. Rinehart’s opinions were inconsistent with Plaintiff’s level of
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`The Commissioner argues new regulations promulgated in 2017 change the standard by
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`which the ALJ’s reasons for rejecting medical providers’ opinions are measured. See Dkt. 17,
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`pp. 7–10. Under current Ninth Circuit precedent, an ALJ must provide “clear and convincing”
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`reasons to reject an uncontradicted opinion from a treating or examining doctor, and “specific
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`and legitimate” reasons to reject a contradicted opinion from such doctor. Lester v. Chater, 81
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`F.3d 821, 830–31 (9th Cir. 1995). Dr. Rinehart’s opinions were contradicted by the opinions of
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`Eugene Kester, M.D., and Patricia Kraft, Ph.D., so the question is whether the specific and
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`legitimate standard still applies. See AR 140–41, 157–58.
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 10
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`The genesis of the “specific and legitimate” standard for contradicted opinions was the
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`Ninth Circuit’s decision in Murray v. Heckler, 722 F.2d 499 (9th Cir. 1983). In Murray, the ALJ
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`rejected the opinions of a treating doctor in favor of the opinions of an examining doctor. See id.
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`at 501. The Ninth Circuit reviewed precedent from other circuits and determined an ALJ must
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`ordinarily give more weight to the opinions of a treating doctor because that doctor is
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`“‘employed to cure’” the claimant and has a “‘greater opportunity to observe and know the
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`patient as an individual.’” Id. at 502 (quoting Bowman v. Heckler, 706 F.2d 564, 568 (5th Cir.
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`1983)). Thus, “[i]f the ALJ wishes to disregard the opinion of the treating physician, he or she
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`must make findings setting forth specific, legitimate reasons for doing so that are based on
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`substantial evidence in the record.” Murray, 799 F.2d at 502.
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`In 1991, the Commissioner promulgated regulations setting forth standards for reviewing
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`medical opinions. 56 Fed. Reg. 36932-01, 1991 WL 142361 (Aug. 1, 1991). Those regulations
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`established a hierarchy mirroring the one set out by the Ninth Circuit, in which treating sources
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`are given more weight than non-treating sources, and examining sources are given more weight
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`than non-examining sources. See id. at *36935–36; 20 C.F.R. §§ 404.1527(c), 416.927(c). The
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`Ninth Circuit mentioned these regulations in its 1995 opinion in Lester, and continued to rely on
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`the “clear and convincing” and “specific and legitimate” standards. See Lester, 81 F.3d at 830–
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`31.
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`In 2017, the Commissioner revised its regulations to eliminate the hierarchy of medical
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`opinions. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg.
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`5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new regulations, for claims filed on or
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`after March 27, 2017, the Commissioner “will not defer or give any specific evidentiary
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`weight . . . to any medical opinion(s) . . . including those from [the claimant’s] medical sources.”
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 11
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`Case 3:20-cv-05339-DWC Document 19 Filed 11/16/20 Page 12 of 15
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`20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the Commissioner must consider all medical
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`opinions and “evaluate their persuasiveness” based on supportability, consistency, relationship
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`with the claimant, specialization, and other factors. 20 C.F.R. §§ 404.152c(c), 416.920c(c). The
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`most important factors are supportability and consistency. 20 C.F.R. §§ 404.152c(a), (b)(2),
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`416.920c(a), (b)(2).
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`At this time, the Ninth Circuit has not issued a decision stating whether it will continue to
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`require an ALJ to provide “clear and convincing” or “specific and legitimate reasons,” or some
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`variation of those standards, when analyzing medical opinions. Regardless, it is not clear the
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`Court’s consideration of the adequacy of an ALJ’s reasoning under the new regulations differs
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`from the current Ninth Circuit standards in any significant respect. Although the regulations
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`eliminate the “physician hierarchy,” deference to specific medical opinions, and assigning
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`“weight” to a medical opinion, the ALJ must still “articulate how [he] considered the medical
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`opinions” and “how persuasive [he] find[s] all of the medical opinions.” 20 C.F.R. §§
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`404.1520c(a), (b)(1), 416.920c(a), (b)(1). The new regulations appear to, at the least, require an
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`ALJ to specifically account for the legitimate factors of supportability and consistency in
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`addressing the persuasiveness of a medical opinion. Furthermore, the Court must continue to
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`consider whether the ALJ’s decision is supported by substantial evidence. See 82 Fed. Reg. at
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`5852 (“Courts reviewing claims under our current rules have focused more on whether we
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`sufficiently articulated the weight we gave treating source opinions, rather than on whether
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`substantial evidence supports our final decision. . . . [T]hese courts, in reviewing final agency
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`decisions, are reweighing evidence instead of applying the substantial evidence standard of
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`review, which is intended to be [a] highly deferential standard to us”).
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 12
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`Case 3:20-cv-05339-DWC Document 19 Filed 11/16/20 Page 13 of 15
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`Therefore, based on the above considerations, the Court will determine whether the
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`ALJ’s decision is free of legal error and supported by substantial evidence.
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`Turning to the ALJ’s analysis, the ALJ did not harmfully err in rejecting Dr. Rinehart’s
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`opinions. An ALJ may discount a doctor’s opinions when they are inconsistent with or
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`unsupported by the doctor’s own clinical findings. See Tommasetti v. Astrue, 533 F.3d 1035,
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`1041 (9th Cir. 2008). Dr. Rinehart’s records reveal normal mental status exam findings, other
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`than several episodes of restricted mood and affect. See AR 2660, 2668, 2760, 2973, 2975–76,
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`2979, 3186–87, 3212–13. Plaintiff reported he continued to struggle with anxiety, and the record
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`does not support the ALJ’s finding that Plaintiff’s symptoms were controlled with medication.
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`See AR 2659, 2979. But the ALJ reasonably noted Plaintiff’s mental status exams were
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`routinely within normal limits, depriving Dr. Rinehart’s opinions of marked to extreme
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`The remainder of the ALJ’s reasons for rejecting Dr. Rinehart’s opinions were erroneous,
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`but those errors were harmless. An error is harmless “where it is ‘inconsequential to the ultimate
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`disability determination.’” Molina, 674 F.3d at 1115 (quoting Carmickle, 533 F.3d at 1162). Dr.
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`Rinehart’s records did not support his opinions even if the ALJ erroneously determined those
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`opinions demonstrated a lack of thoughtfulness, for example. The ALJ therefore did not
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`harmfully err in rejecting Dr. Rinehart’s opinions.
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`D. Whether the ALJ Reasonably Refused to Provide Plaintiff an Opportunity to Cross-
`Examine the Non-Examining Doctors
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`Plaintiff contends the ALJ violated his due process rights by failing to provide him an
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`opportunity to cross-examine non-examining doctors on whose opinions the ALJ relied. See
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`Dkt. 16, pp. 16–17. “A claimant in a disability hearing is not entitled to unlimited cross-
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`examination, but is entitled to such cross-examination as may be required for a full and true
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 13
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`disclosure of the facts.” Copeland v. Bowen, 861 F.2d 536, 539 (9th Cir. 1988) (citing Solis v.
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`Schweiker, 719 F.2d 301, 302 (9th Cir. 1983)). Because this matter is being remanded for
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`further administrative proceedings, the Court need not decide whether cross-examination is
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`required here. The parties may submit additional evidence, and the ALJ should then determine
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`whether cross-examination is necessary for a “full and true disclosure of the facts.” See id.
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`E.
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`Scope of Remand
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`Plaintiff asks the Court to remand this matter for an award of benefits. Dkt. 16, p. 18.
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`Plaintiff argues he meets Listings 12.04 and 12.15 based on Dr. Rinehart’s opinions. Id.
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`Plaintiff also argues his testimony that he needs to nap for two hours a day, coupled with
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`testimony from the vocational expert, establishes he cannot work. Id.
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`Remand for an award of benefits “is a rare and prophylactic exception to the well-
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`established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017). The
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`Ninth Circuit has established a three-step framework for deciding whether a case may be
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`remanded for an award of benefits. Id. at 1045. First, the Court must determine whether the ALJ
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`has failed to provide legally sufficient reasons for rejecting evidence. Id. (citing Garrison, 759
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`F.3d at 1020). Second, the Court must determine “whether the record has been fully developed,
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`whether there are outstanding issues that must be resolved before a determination of disability
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`can be made, and whether further administrative proceedings would be useful.” Treichler v.
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`Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (internal citations and
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`quotation marks omitted). If the first two steps are satisfied, the Court must determine whether,
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`“if the improperly discredited evidence were credited as true, the ALJ would be required to find
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`the claimant disabled on remand.” Garrison, 759 F.3d at 1020. “Even if [the Court] reach[es]
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`the third step and credits [the improperly rejected evidence] as true, it is within the court’s
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`ORDER REVERSING AND REMANDING
`DEFENDANT’S DECISION TO DENY BENEFITS - 14
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`discretion either to make a direct award of benefits or to remand for further proceedings.” Leon,
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`880 F.3d at 1045 (citing Treichler, 773 F.3d at 1101).
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`Plaintiff has failed to show this case warrants remand for an immediate award of benefits.
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`First, the ALJ reasonably rejected Dr. Rinehart’s opinions, so disability cannot be found on that
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`basis. See supra Part IV.C. Second, Plaintiff’s testimony that he needs to nap for two hours a
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`day is contradicted by the opinions of Dr. Kester and Dr. Kraft, who opined Plaintiff could
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`“complete a normal workday/week within normal tolerances of a competitive workplace.” See
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`AR 141, 158. The ALJ, not the Court, must resolve this evidentiary conflict. See Andrews v.
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`Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
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`On remand, the ALJ shall reevaluate Plaintiff’s and his mother’s testimony. The ALJ
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`shall reassess Plaintiff’s RFC, as well as steps four and five of the disability evaluation. The
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`ALJ shall c