1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 THOMAS L.,1 Case No. 8:20-cv-01880-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND ORDER 14 ANDREW M. SAUL, Commissioner of Social Security,2 15 Defendant. 16

17 18 I. PROCEDURAL HISTORY 19 Plaintiff Thomas L. (“Plaintiff”), proceeding pro se and in forma pauperis, 20 filed a complaint seeking review of the decision of the Commissioner of Social 21 Security denying his application for Disability Insurance Benefits (“DIB”). [Dkts. 22 1, 4.] The parties filed consents to proceed before the undersigned United States 23 Magistrate Judge [Dkts. 7 and 9]. On February 1, 2021, Plaintiff filed a motion 24 requesting the Court reverse the final decision of the Commissioner and remand this 25

26 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party. 27 2 Andrew M. Saul, now Commissioner of the Social Security Administration, is 28 substituted as defendant for Nancy A. Berryhill. See Fed. R. Civ. P. 25(d). 1 case for the payment of benefits. [Dkt. 13.] Upon reviewing Plaintiff’s motion, the 2 Commissioner offered to voluntarily remand the case pursuant to

405(g). [Dkt. 18.] Plaintiff, however, rejected Defendant’s stipulated proposal. On 4 March 30, 2021, in lieu of an opposition to Plaintiff’s motion, Defendant filed a 5 motion requesting the Court remand this action for further proceedings. [Dkt. 18.] 6 On April 12, 2021, Plaintiff filed an opposition to the motion to remand requesting 7 the Court grant summary judgment in his favor, reverse the decision of the 8 Commissioner, and remand with instructions to award benefits. [Dkt. 20.] The 9 matter is now ready for decision. Having reviewed the parties’ positions, the 10 Administrative Record (“AR”), and relevant legal authority, the Court REVERSES 11 the Commissioner’s decision and REMANDS this case for further administrative 12 proceedings. 13 II. ADMINISTRATIVE DECISION UNDER REVIEW 14 Plaintiff was born in 1981. [Administrative Record (“AR”) 182-188.] 15 Plaintiff primarily suffers from pain due to injuries sustained from a motorcycle 16 accident in 2012 that injured his hand and heightened his depression. Prior to his 17 injury, Plaintiff worked as a “help desk specialist.” [AR 46.] 18 In 2013, the agency found Plaintiff disabled as of May 7, 2012. [AR 193.] 19 On June 20, 2014, it was determined that Plaintiff had experienced medical 20 improvement, he was no longer disabled, and that Plaintiff’s benefits would 21 terminate as of June 1, 2014. [AR 198-201.] Plaintiff requested reconsideration 22 before a Disability Hearing Officer (“DHO”). [AR 145-158.] The DHO held a 23 hearing and issued a decision upholding the determination of Plaintiff’s medical 24 improvement relating to his ability to work and finding him “not disabled.” [AR 25 209-226.] Plaintiff appealed the DHO’s decision and requested a hearing before an 26 Administrative Law Judge. [AR 164.] 27 On January 8, 2020, a hearing was held before Administrative Law Judge 28 Stacy Zimmerman. [AR 40-130.] During the hearing, at which Plaintiff appeared 1 without the assistance of an attorney, the ALJ heard testimony from Plaintiff and a 2 vocational expert. [AR 40-130.] In a decision dated March 11, 2020, the ALJ made 3 the following findings: at the time of the most recent favorable comparison point 4 decision (“CPD”), Plaintiff had medically determinable impairments including: 5 fractures of the right scapula and third, fourth, and fifth metacarpals of the right 6 hand, status post open reduction internal fixation (ORIF) surgeries, secondary to a 7 June 2012 motorcycle accident; and history of neck and back injuries secondary to a 8 February 2012 accident. [AR 16.] These impairments were found to result in the 9 residual functional capacity (“RFC”) to lift and carry 20 pounds occasionally and 10 10 pounds frequently; stand and walk for 1 hour in an 8-hour workday; sit for 6 hours 11 in an 8-hour workday, with frequent breaks; occasionally use the right upper 12 extremity for pushing, pulling, reaching, handling, fingering, and feeling; 13 occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs; never balance 14 or climb ladders, ropes, or scaffolds; and avoid concentrated exposure to extreme 15 cold, vibration, and hazards. 16 Since June 1, 2014, Plaintiff did not have an impairment or combination of 17 impairments that met or medically equaled the requirements of one of the 18 impairments from the Commissioner’s Listing of Impairments. Medical 19 improvement occurred on June 1, 2014. [AR 19.] Since June 1, 2014, Plaintiff had 20 an RFC to perform a range of light work. Plaintiff’s medical improvement was 21 related to the ability to work because it resulted in an increase in his RFC. [AR 21.] 22 Since June 1, 2014, Plaintiff was incapable of performing his past relevant work, but 23 he could perform other work in the national economy. [AR 29.] Accordingly, 24 Plaintiff’s disability ended on June 1, 2014, and Plaintiff did not become disabled 25 again since that date. [AR 29.] 26 Plaintiff filed a request for review of the ALJ’s decision, which the Appeals 27 Council considered but ultimately denied, making the ALJ’s decision the final 28 decision of the Commissioner. [AR 1-3.] This appeal followed. 1 III. GOVERNING STANDARD 2 Under

(g), the Court reviews the Commissioner’s decision to 3 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 4 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 5 Soc. Sec. Admin.,

(9th Cir. 2008); Brewes v. Comm’r Soc. Sec. 6 Admin.,

(9th Cir. 2012) (internal citation omitted). 7 “Substantial evidence is more than a mere scintilla but less than a preponderance; it 8 is such relevant evidence as a reasonable mind might accept as adequate to support a 9 conclusion.” Gutierrez v. Comm’r of Soc. Sec.,

(9th Cir. 10 2014) (internal citations omitted). 11 The Court will uphold the Commissioner’s decision when the evidence is 12 susceptible to more than one rational interpretation. See Molina v. Astrue,

(9th Cir. 2012). However, the Court may review only the reasons stated 14 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 15 did not rely.” Orn v. Astrue,

(9th Cir. 2007). The Court will not 16 reverse the Commissioner’s decision if it is based on harmless error, which exists if 17 the error is “inconsequential to the ultimate nondisability determination, or if despite 18 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 19 Colvin,

(9th Cir. 2015). IV. DISCUSSION 20 21 Plaintiff argues that this matter should be remanded for an immediate and 22 permanent payment of benefits. Defendant concedes that this matter should be 23 remanded, but argues that it should be remanded for further administrative 24 proceedings. Specifically, Defendant requests that this Court remand the case to 25 enable the Commissioner to re-evaluate the “treating and nonexamining source 26 opinions” under the weighing rules in effect on June 26, 2014—the time of 27 Plaintiff’s medical improvement determination. [Dkt. 18 at 3.] Defendant explains 28 that the Social Security Administration amended its regulations regarding the 1 consideration of medical evidence—with those revisions applicable to all claims 2 filed after March 27, 2017. When reviewing Plaintiff’s case, the ALJ applied the 3 revised Social Security regulations effective March 27, 2017, however this was 4 incorrect as Plaintiff’s medical improvement determination occurred on June 26, 5 2014, before the revised regulations became effective. Thus, the agency’s decision 6 was reached through the application of the wrong legal standard.3 7 Because Defendant agrees that remand is appropriate, the only issue 8 remaining to be decided is whether remand should be for the determination of 9 benefits or for further proceedings. Defendant argues that further proceedings are 10 necessary because issues remain to be decided, while Plaintiff argues that his claim 11 should be remanded for the determination of benefits because remand for further 12 proceedings would unnecessarily delay the resolution of this matter and he was 13 unfairly prejudiced based on the “attitudes of the Secretary and subordinates” who 14 enacted regulations to “ensure that there is no hint of impropriety or unfairness 15 skewing the outcome of the determination process.” [Dkt. 20 at 1.]; [Dkt. 13 at 12.] 16 “When the ALJ denies benefits and the court finds error, the court ordinarily 17 must remand to the agency for further proceedings before directing an award of 18 benefits.” Leon v. Berryhill,

(9th Cir. 2017) (citing Treichler 19 v. Comm’r of Soc. Sec. Admin.,

(9th Cir. 2014)). However, 20 under the credit-as-true rule, the Court may order an immediate award of benefits if 21 three conditions are met. First, the Court asks, “whether the ‘ALJ failed to provide 22 legally sufficient reasons for rejecting evidence, whether claimant testimony or 23 medical opinion.’”

(quoting Garrison, 759 F.3d at 1020). Second, the Court 24 must “determine whether there are outstanding issues that must be resolved before a 25 disability determination can be made, . . . and whether further administrative 26

27 3 Defendant also argues that remand is necessary to resolve conflicts between the jobs identified by the vocational expert and the Dictionary of Occupational 28 Titles. 1 proceedings would be useful.” Id. (citations and internal quotation marks omitted). 2 Third, the Court then “credit[s] the discredited testimony as true for the purpose of 3 determining whether, on the record taken as a whole, there is no doubt as to 4 disability.” Id. (citing Treichler,

). 5 It is only “rare circumstances that result in a direct award of benefits” and 6 “only when the record clearly contradicted an ALJ’s conclusory findings and no 7 substantial evidence within the record supported the reasons provided by the ALJ 8 for denial of benefits.” Id. at 1047. Further, even when all three criteria are met, 9 whether to make a direct award of benefits or remand for further proceedings is 10 within the district court’s discretion. Id. at 1045(citing Treichler,

). 11 While all three credit-as-true factors may be met, the record as a whole could still 12 leave doubts as to whether the claimant is actually disabled. Trevizo v. Berryhill, 13

, 683 n.11 (9th Cir. 2017). In such instances, remand for further 14 development of the record is warranted.

15 The Court now analyzes the three-step framework to deduce whether this is a 16 rare circumstance where the Court may decide not to remand for further 17 proceedings. See Treichler,

. As to the first step, Defendant is 18 correct in asserting that the revised regulations that became effective on March 27, 19 2017 do not apply to this case. Thus, the ALJ’s evaluation of the medical evidence 20 using the revised standard was error. 21 Second, the Court determines whether further administrative proceedings 22 would serve no useful purpose by considering whether the record has conflicts, 23 ambiguities, gaps, or unresolved factual issues.

. In conducting the 24 second step, the Court considers whether there are inconsistencies between the 25 improperly rejected evidence and the medical evidence in the record. See 26 Dominguez v. Colvin,

(9th Cir. 2015) (quoting Treichler, 775 27 F.3d at 1105). Here, further administrative proceedings are necessary because the 28 ALJ’s analysis and opinion is derived from an application of the incorrect legal 1 standard. When the Appeals Council instructed the ALJ to re-adjudicate the 2 medical improvement determination, the Appeals Council expressly instructed the 3 ALJ to “evaluate the treating and nontreating source opinions” in accordance with 4 the provisions” in effect during 2014, “and explain the weight given to such opinion 5 evidence.” [AR 14, 191.] Although the ALJ acknowledged that instruction (AR 6 14), the ALJ did not apply the weighing rules in effect during 2014; instead, the ALJ 7 applied the persuasiveness rules governing medical opinions under the revised 8 regulations that became effective after March 27, 2017. [AR 20, 21, 25, 26; see also 9 AR 23.] This error caused the ALJ to improperly assess the medical evidence that 10 opined on Plaintiff’s capacity to perform relevant functions. Thus, the ALJ’s 11 decision should be remanded for further proceedings. 12 Finally, while the Court sympathizes with Plaintiff that remand will cause 13 further delay, this alone cannot be the basis for Plaintiff’s requested relief. See 14 Treichler,

. The case at bar is not “the unusual case in which it is 15 clear from the record that the claimant is unable to perform gainful employment in 16 the national economy.” Benecke v. Barnhart,

(9th Cir. 2004). 17 Rather, remand is necessary for reevaluation of the medical evidence, after which 18 the ALJ must conduct a new sequential evaluation, make new credibility findings, 19 give legally sufficient reasons for the rejection of probative evidence from 20 acceptable medical sources as well as other sources, and make new findings 21 regarding Plaintiffs residual functional capacity. Accordingly, the Court finds that 22 remand for further proceedings is the appropriate remedy here. 23 V. CONCLUSION 24 For all of the foregoing reasons, IT IS ORDERED that: 25 (1) Defendant’s Motion to Remand be GRANTED; 26 (2) Plaintiff’s Motion for Summary Judgment be DENIED, in part; 27 (3) the Decision of the Commissioner is REVERSED and this matter 28 REMANDED pursuant to sentence four of

(g) for further 1 administrative proceedings consistent with this Order; and 2 (4) Judgment be entered in favor of Plaintiff. 3 4 IT IS SO ORDERED. 5 6 || DATED: June 25, 2021 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28