Harrison v. O'Malley

FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Jul 25, 2024 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 JAMES H.,1 No. 1:23-cv-05178-EFS 7 Plaintiff, ORDER REVERSING THE ALJ’S 8 v. DENIAL OF BENEFITS, AND REMANDING FOR PAYMENT OF 9 MARTIN O’MALLEY, Commissioner of BENEFITS Social Security, Defendant.

13 Due to attention deficit hyperactivity disorder (ADHD); anxiety; post- 14 traumatic stress disorder (PTSD); depression; anti-social personality disorder; 15 authority issues; institutionalization; substance addiction, methamphetamine 16 dependence; hypertension; hepatitis; migraine headaches; heart failure; obesity; 17 asthma; gastroesophageal reflux disease (GERD); hyperlipidemia; right foot injury 18 and abscess; seizures; sepsis; and pneumonia, Plaintiff James H. claims he is To address privacy concerns, the Court refers to Plaintiff by first name and last initial or as “Plaintiff.” See LCivR 5.2(c).

ORDER RULING ON CROSS MOTIONS TO REMAND - 1 1 unable to work fulltime and applied for social-security benefits and supplemental 2 security income benefits. He appealed the denial of benefits by the Administrative 3 Law Judge (ALJ) on the grounds that the ALJ improperly evaluated the medical 4 opinion evidence and committed many of the same errors for which the court 5 remanded in its prior order, failed to conduct an adequate analysis at step three, 6 erred in his analysis of the credibility of Plaintiff’s subjective complaints, and failed 7 to meet his burden at step five. As is explained below, the ALJ erred. This matter 8 is remanded for payment of benefits.

9 I. Background 10 This case has a long history and is before the Court on review for the third 11 time, having been remanded once before on the Order of Judge Mary Dimke, and 12 once again by voluntary remand requested by the Commissioner. The 13 Commissioner requests that judgment be entered in favor of the Commissioner or 14 that the Court remand a second time for further proceedings. Plaintiff requests 15 that the Court remand for calculation of benefits.

16 Due to his mental and physical impairments, Plaintiff protectively filed for 17 supplemental security income benefits on December 17, 2015, alleging an onset 18 date of December 11, 2015.2 Plaintiff’s claims were denied at initial and AR 191, 230.

ORDER RULING ON CROSS MOTIONS TO REMAND - 2 1 reconsideration levels, and Plaintiff requested an ALJ hearing.3 After his first 2 hearing before ALJ Donna Walker on February 2, 2018, ALJ Walker issued an 3 unfavorable decision on March 22, 2018.4 Plaintiff requested review by the 4 Appeals Council and on February 17, 2019, the Appeals Council denied review.5 5 Plaintiff filed in this court and on May 22, 2020, the case was remanded pursuant 6 to the Order of Judge Mary Dimke.6 On October 7, 2021, Plaintiff and his attorney 7 appeared before ALJ Walker for a second hearing.7 On January 5, 2022, ALJ 8 Walker issued an unfavorable decision.8 Plaintiff again filed suit in this court and 9 on October 13, 2022, the case was remanded by the court for further proceedings at 10 the request of the Commissioner.9 On October 5, 2023, Plaintiff and his counsel 11 appeared before ALJ Jesse Shumway and on October 24, 2023, ALJ Shumway 12 issued an unfavorable decision.10 Plaintiff filed the present action in this court.

3 AR 87, 94, 97.

4 AR 33--60, 12--32.

5 AR 1—6.

6 AR 811--850.

7 AR 755--772.

8 AR 728--750.

9 AR 1345--1350.

10 AR 1311-1321, 1280-1310.

ORDER RULING ON CROSS MOTIONS TO REMAND - 3 1 ALJ Shumway found: 2 • Step one: Plaintiff had not engaged in substantial gainful activity 3 since the alleged onset date of January 11, 2015.

4 • Step two: Plaintiff had the following medically determinable severe 5 impairments: adjustment disorder with depressed mood and anxiety; 6 generalized anxiety disorder; personality disorder, with anti-social 7 traits; ADHD; PTSD; and substance addiction, methamphetamine 8 dependance.

9 • Step three: Including substance use, Plaintiff did have an impairment 10 or combination of impairments that met or medically equaled the 11 severity of one of the listed impairments at Listings 12.04, 12.08, and 12 12.11. He also found at step three that if Plaintiff stopped substance 13 use, Plaintiff would not have an impairment or combination of 14 impairments that would meet one of the listed impairments.

15 • RFC: Plaintiff had the RFC to perform a full range of work at all 16 exertional levels except that: 17 [Plaintiff] would be limited to simple, routine tasks; he could have no contact with the public and only occasional, superficial 18 contact with supervisors and coworkers, with no collaborative tasks; and he would need a routine, predictable work 19 environment with clear, employer-set goals and no more than occasional changes. • Step four: Plaintiff has no past relevant work.

ORDER RULING ON CROSS MOTIONS TO REMAND - 4 1 • Step five: considering Plaintiff’s RFC, age, limited education, and 2 work history, Plaintiff could perform work that existed in significant 3 numbers in the national economy, such as a commercial cleaner (DOT 4 381.687-014), a laundry worker (DOT 361.685-018), and an 5 automobile detailer (DOT 915.687-034).11 6 Plaintiff now appeals ALJ Shumway’s denial of disability and asks for an 7 immediate award of benefits.12 The Commissioner asks the Court to enter 8 judgment in favor of the Commissioner or, in the alternative, to remand the matter 9 for further administrative proceedings because there are evidentiary conflicts that 10 must be resolved by the ALJ.13 11 II. Analysis 12 A. Remand Standard 13 When a harmful error occurs in the administrative proceeding, remand for 14 further administrative proceedings is the usual course absent rare circumstances.14

11 AR 1286--1302.

12 ECF Nos. 6, 10.

13 ECF No. 9.

14 Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).

ORDER RULING ON CROSS MOTIONS TO REMAND - 5 1 Three factors must be satisfied for the court to consider remand for payment of 2 benefits: 3 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 4 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 5 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.15 When these factors are satisfied, the decision whether to remand for benefits or further proceedings is within the court’s discretion, as it “is a fact-bound determination that arises in an infinite variety of contexts.”16 B. Medical Opinions: Plaintiff established consequential error.

Plaintiff argues the ALJ erred by rejecting Dr. Marks’ disabling opinions; failing to properly account for Dr. Nestler’s disabling assessment; and rejecting the opinions of Dr. Colby and Dr. Lewis. Plaintiff argues that the ALJ erred in rejecting Dr. Marks’ opinions using reasoning similar to that already rejected by this Court in its prior order. The Commissioner argues that the ALJ’s consideration of the medical opinions is supported by substantial evidence.

.

16 Treichler, 775 F.3d at 1100 (quoting Harman v. Apfel, 211 F.3d 1172, 1177 (9th Cir. 2000)).

ORDER RULING ON CROSS MOTIONS TO REMAND - 6 1 1. Standard 2 When Plaintiff filed his initial disability application, old regulations applied 3 which required that medical opinions be assessed based on the nature of the 4 medical relationship the claimant had with the medical provider. When a treating 5 physician’s or evaluating physician’s opinion is not contradicted by another 6 physician’s opinion, it may be rejected only for “clear and convincing” reasons, and 7 when it is contradicted, it may be rejected for “specific and legitimate reasons” 8 supported by substantial evidence.17 A reviewing physician’s opinion may be 9 rejected for specific and legitimate reasons supported by substantial evidence, and 10 the opinion of an “other” medical source18 may be rejected for specific and germane 11 reasons supported by substantial evidence.19 12 2. The ALJ’s Findings 13 The ALJ assessed the medical opinions and found as follows: Id.; Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995).

18 See 20 C.F.R. § 416.902 (defining who is an acceptable medical source for claims filed before March 27, 2017).

19 Molina, 674 F.3d at 1111. The opinion of a reviewing physician serves as substantial evidence if it is supported by other independent evidence in the record.

Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

ORDER RULING ON CROSS MOTIONS TO REMAND - 7 1 • The opinions of hearing medical expert Ricardo Buitrago, PhD, are 2 entitled to great weight.

3 • The opinions of hearing medical expert Jay Toews, EdD, are entitled to 4 some weight.

5 • The opinions of examining source K. Nestler MD, are entitled to great 6 weight.

7 • The opinions of state agency consultants Rita Flanagan, PhD, and Bruce 8 Eather, PhD, are entitled to some weight.

9 • The opinions of examining source N.K. Marks, PhD, are entitled to little 10 weight.

11 • The opinions of Faulder Colby, PhD, are entitled to little weight.

12 • The opinions of Janis Lewis, PhD, are entitled to little weight.

13 • The opinions of Jan Kouzes, EdD, are entitled to some weight.

14 • The opinions of examining source CeCelia Cooper, PhD, are entitled to 15 little weight.

16 • The opinions of Joseph Poston, APRN, are entitled to little weight.20 17 3. Dr. Marks and Dr. Nestler 18 Plaintiff asserts that the case should be remanded for calculation of benefits 19 because the ALJ’s evaluation of the opinions of Dr. Marks held some of the same AR 1294--1300.

ORDER RULING ON CROSS MOTIONS TO REMAND - 8 1 errors as the original decision in the case and that the failure to properly evaluate 2 it violated this court’s first remand order of May 22, 2020.21 It is notable that 3 subsequent to this court’s prior Order, which directed the ALJ to further develop 4 the record, two hearings were held and no medical expert was called to testify at 5 either nor was Plaintiff asked to attend a consultative examination.

6 Dr. Marks evaluated Plaintiff twice. First, in January 2015, Dr. Marks 7 performed a consultative examination of Plaintiff at the request of State of 8 Washington Department of Social and Health Services.22 Dr. Marks noted that 9 Plaintiff reported that he had been institutionalized most of his adult life.23 10 Dr. Marks reviewed four psychiatric reports: one from Dr. Jan Kouzas, one from 11 Dr. Tae-Im Moon, and two from Lyn Smith, LMHC.24 Dr. Kim’s assessments were 12 rendered in February 2009 and December 2009, while Plaintiff was incarcerated.25 13 Dr. Marks report included a very thorough and detailed narrative of Plaintiff’s 14 diagnostic interview, which included information regarding Plaintiff’s psychosocial 15 history, treatment history, education and work history, substance use and chemical

21 ECF No. 6.

22 AR 297–301.

23 AR 297.

24 Id. Id. ORDER RULING ON CROSS MOTIONS TO REMAND - 9 1 dependency, and activities of daily living.26 Dr. Marks also performed a mental 2 status examination, and psychological testing and diagnosed Plaintiff with 3 generalized anxiety disorder; unspecified ADHD; adjustment disorder, with mixed 4 disturbance of emotions and conduct; antisocial personality disorder; cannabis 5 abuse in remission; and methamphetamine addiction in remission.27 Dr. Marks 6 assessed marked to severe limitations in the following basic work abilities: (1) be 7 aware of normal hazards and take appropriate precautions; (2) maintain 8 appropriate behavior in a work setting; (3) complete a normal work day and work 9 week without interruptions from psychologically based symptoms; (4) set realistic 10 goals and plan independently; (5) perform activities within a schedule, maintain 11 regular attendance, and be punctual within customary tolerances without special 12 supervision; (6) learn new tasks; (7) perform routine tasks without special 13 supervision; (8) adapt to changes in a routine work setting; (9) make simple work- 14 related decisions; and (10) ask simple questions or request assistance.28

26 AR 297—299.

27 Id. AR 300—301.

ORDER RULING ON CROSS MOTIONS TO REMAND - 10 1 In July 2017, Dr. Marks evaluated Plaintiff again, at the request of 2 Washington Department of Social and Health Services.29 Dr. Marks provided 3 updates to the 2015 report and noted as follows: 4 [Plaintiff] was previously seen by this provider in 2015. At that time, [Plaintiff] asserted that he was unable to work due to severe ADHD.

5 He reported he gets extremely sidetracked and procrastinates. He has very poor time management. He reports that he has an extremely long 6 attention span. He experiences extreme anxiety. He believes that he is institutionalized from spending most of his adult life in prison.

7 Today (07/17), he asserts the same conditions affect him. He was tearful, frustrated and hopeless today. He has very poor self- 8 management skills. He believes his previous lifestyle was traumatizing and his trying to resolve it.30 10 Dr. Marks again performed a mental status examination and noted that 11 Plaintiff’s speech was well-organized and progressive but that he has a short 12 attention span and is not a good listener; that Plaintiff’s attitude was cooperative 13 and open but that he was hopeless, although he denied suicidal ideations; his mood 14 was depressed and anxious; and his affect was agitated.31 He noted that Plaintiff’s 15 insight and judgment were improving but were colored by institutionalization and 16 a past history of criminal behavior.32 Dr. Marks noted that Plaintiff reported that AR 383—389.

30 AR 383.

31 AR 388.

32 AR 389.

ORDER RULING ON CROSS MOTIONS TO REMAND - 11 1 he did well when in prison, but when released as no self-management skills, 2 becomes anxious and makes poor decisions.33 With regard to depression, Dr. Marks 3 stated that depression was manifest through multiple statements and a very 4 negative self-appraisal and that Plaintiff is a poor prospect for work until his 5 depression is treated.34 Dr. Marks stated that with regard to adjustment disorder, 6 Plaintiff has few coping skills, and cannot problem solve, and that he was 7 depressed, anxious, and frustrated at his inability to self-manage himself.35 8 Dr. Marks diagnosed generalized anxiety disorder; attention-deficit, hyperactivity 9 disorder; adjustment disorder, with mixed disturbance of emotions and conduct; 10 and antisocial personality disorder.36 Dr. Marks’ assessment of functional 11 limitations was unchanged from the prior assessment.37 12 The ALJ articulated four reasons for finding the opinions of Dr. Marks 13 entitled to little weight.38 He found that Dr. Marks’ opinions were not supported 14 by his own examination findings or significant record review; that Dr. Marks’ AR 385.

34 AR 385.

35 Id. AR 386.

37 AR 386--387.

38 AR 1297--1299.

ORDER RULING ON CROSS MOTIONS TO REMAND - 12 1 opinions were rendered on checkbox forms with no meaningful explanation for each 2 rating; that Dr. Marks did not review medical records from the period that Plaintiff 3 was in jail that show intact functioning during imprisonment; and that Dr. Marks 4 relied only on Plaintiff’s self-reported symptoms and not on his own objective 5 findings. The Court will address each of the reasons articulated by the ALJ: 6 a. Dr. Marks’ examination findings did not support his opined 7 limitations.

8 Plaintiff argues that the ALJ erred in his reasoning that Dr. Marks’ opinions 9 were not supported by his examination findings, pointing out that the Court ruled 10 in its prior order that such reasoning was not supported by the record.39 In his 11 brief, the Commissioner failed to address Plaintiff’s argument that the ALJ’s 12 decision violates the law of the case and instead pointed to those findings in 13 Dr. Marks’ examination it alleged to be inconsistent with the opinions.40 14 In her May 22, 2020 Order, Judge Dimke stated the following: 15 The ALJ discounted Dr. Marks’ opinions because “neither evaluation contains the mental status abnormality necessary to support” the 16 opinions. Tr. 25. Although the mental status examinations contain largely findings “within normal limits,” Dr. Marks’ opinions are replete 17 with detailed descriptions supporting the primary symptoms which are consistent with the problems Plaintiff faces in everyday life because of 18 his impairments and difficulties coping with adjustment to life outside the structured environment of incarceration. In January 2015, the ECF No. 6, 10.

40 ECF No. 9.

ORDER RULING ON CROSS MOTIONS TO REMAND - 13 1 clinical findings included that Plaintiff has “an extremely high level of anxiety” and is “somewhat socially phobic”, and has nervousness, poor 2 focus, poor effort, poor concentration, a high level of avoidance, poor self-esteem, depressed outlook, and difficulties with focus, 3 distractibility and impulsivity. His mood was “very anxious” and “fearful of relapse” and his affect was “nervous and sad.” In July 2017, 4 Dr. Marks noted Plaintiff has “a short attention span” and “isn’t a good listener”; “feels hopeless about life”; has a depressed and anxious mood 5 with agitated affect; and concentration deficits not within normal limits, noting he was distractible, off-task and struggled to maintain 6 focus. Accordingly, substantial evidence does not support the ALJ’s finding that suggesting there are no “mental status abnormalities” 7 which would support the assessed marked limitations in work capabilities.41 Notably, the ALJ’s articulated reasoning in the case at bar mirrored that of the ALJ whose reasoning was considered by Judge Dimke. Because the Commissioner failed to obtain either an additional consultative examination or additional medical expert testimony, the Court considered Dr. Marks’ opinions based upon the same medical record as that presented to Judge Dimke. The Court finds that for that reason, Plaintiff is correct that the ALJ’s finding as to this issue violates the law of the case. b. Dr. Marks’ opinion was rendered on a check-box form with no meaningful explanation The ALJ mischaracterizes the form on which Dr. Marks rendered his opinion by calling it a “check-box form.” While it is true that the form has some sections AR 841—842.

ORDER RULING ON CROSS MOTIONS TO REMAND - 14 1 which are in check-box form the bulk of the form provides for narrative statements 2 and the narrative statements provided by Dr. Marks on the form are thorough and 3 detailed. Generally, when referring to a “check-box form,” the Court considers a 4 form which is skeletal in nature, with primarily check-boxes to be completed and at 5 times accompanied by one or two written or typed narrative sentences. The form 6 in question in no way resembles such a form – it instead is lengthy, detailed, and 7 provides more information than any other opinion in the record, including the 8 testimony of Dr. Buitrago and Dr. Toews. As Judge Dimke pointed out, the report 9 is “replete with detailed descriptions supporting the primary symptoms.”

10 The Count concludes that substantial evidence does not support the ALJ’s 11 finding that Dr. Marks’ opinions were rendered on a simple “check-box form.”

12 c. Dr. Marks did not consider that Plaintiff’s functioning improved 13 while he was incarcerated 14 The ALJ errs in two regards in finding that Dr. Marks did not consider that 15 Plaintiff’s functioning improved while he was in prison. The ALJ stated that Dr. 16 Marks had not been able to review any of Plaintiff records from jail, which he 17 stated were “highly probative of Plaintiff’s functioning without drugs and 18 alcohol.”42 But the ALJ errs in this assertion first because Dr. Marks did in fact 19 review two separate psychological assessments performed by Lyn Smith, LMHC, AR 1297.

ORDER RULING ON CROSS MOTIONS TO REMAND - 15 1 during the time that Plaintiff was incarcerated and was well-advised of Plaintiff’s 2 mental functioning during his incarceration.43 3 Moreover, the ALJ errs in assuming that Plaintiff’s improved functioning 4 while in prison is a de facto finding that he is capable of functioning when not 5 abusing substances. That reasoning fails to consider both that Dr. Marks opined 6 that at the time of each of his assessments, Plaintiff was in remission.44 More 7 importantly, it fails to consider that Dr. Marks attributed Plaintiff’s difficulty in 8 functioning outside of incarceration not due to substance abuse but because he had 9 been institutionalized and lacked the ability to self-manage himself.45 10 In the prior order of this court, Judge Dimke stated: 11 Limitations associated with an adjustment disorder were assessed on four separate occasions in psychological evaluations, which were 12 conducted by Dr. Marks both in January 2015 and July 2017, Dr. Nestler in March 2016, and Dr. Cooper in 2010. (Dr. Marks’ description 13 of Plaintiff’s adjustment disorder symptoms as his “difficult time adjusting to life outside prison” as he has “few coping skills” and 14 “doesn’t know where to start with normal problem-solving skills.) . . .

None of the above-referenced medical evidence support the ALJ’s 15 finding that anxiety and adjustment disorders would not exist and would not be severe absent substance abuse, nor do they establish 16 Plaintiff would be disabled in the absence of DAA.46

43 AR 297, 383.

44 AR 299, 386.

45 AR 297, 383, 389.

46 AR 837.

ORDER RULING ON CROSS MOTIONS TO REMAND - 16 1 Accordingly, the Court finds that the ALJ’s reasoning that Dr. Marks did 2 not properly consider that Plaintiff’s functioning improved during incarceration is 3 not supported by substantial evidence and was not good reason to assign Dr. 4 Marks’ opinions little weight.

5 d. Dr. Marks relied on Plaintiff’s self-reports rather than objective 6 findings 7 As is noted in the Court’s analysis above, Dr. Marks’ examination findings 8 contained a number of objective findings. By reference, the Court incorporates 9 those findings and concludes that Dr. Marks did not rely solely upon subjective 10 complaints. Accordingly, the Court finds the ALJ’s reasoning is not supported by 11 substantial evidence.

12 e. Dr. Nestler’s opinions 13 Because the Court has determined that the ALJ erred in his consideration of 14 Dr. Marks’s opinions, it will only briefly address the ALJ’s consideration of 15 Dr. Nestler’s opinions. Plaintiff alleges that the ALJ erred when considering 16 Dr. Nestler’s opinions.

17 The ALJ acknowledged that Dr. Nestler opined that Plaintiff might have 18 difficulty in accepting instructions, interacting with others, performing work 19 activities consistently without additional instructions, maintaining attendance, 20 completing work activities without interruption, and dealing with the usual stress ORDER RULING ON CROSS MOTIONS TO REMAND - 17 1 in the workplace.47 The ALJ reasoned however that because Dr. Nestler opined 2 that Plaintiff “may” have those limitations they would be mild or moderate in 3 nature.48 4 The ALJ’s reasoning does not provide any articulation as to the ALJ’s logic 5 in reaching the conclusion that Dr. Nestler intended for the limitations to be no 6 more than moderate. Without articulating a logical bridge between Dr. Nestler’s 7 ambiguous opinion regarding limitations and his own conclusion that Dr. Nestler 8 intended for the limitations to be mild or moderate, the Court is unable to 9 adequately review the ALJ’s determination.

10 4. Dr. Colby and Dr. Lewis 11 Plaintiff argues that the ALJ erred in failing to consider that reviewing 12 medical sources Faulder Colby, PhD, and Janis Lewis, PhD, reviewed the record 13 and concurred with Dr. Marks’ opinions both as to the limitations opined and as to 14 the fact that the limitations would exist in absence of DAA.49 15 The ALJ rejected Dr. Lewis’ opinions, articulating that he was doing so 16 because they appeared to have been based upon Dr. Marks’ February 2015 and AR 1295—1296, citing AR 338.

48 AR 338.

49 ECF NO. 6.

ORDER RULING ON CROSS MOTIONS TO REMAND - 18 1 July 2017 opinions.50 The ALJ then goes on to restate his reasoning as to the little 2 weight assigned to Dr. Marks’ opinions.51 The ALJ fails to articulate his reasoning 3 as to why Dr. Lewis relied solely on Dr. Marks’ opinions. On the face of his report, 4 Dr. Lewis notes that he reviewed the assessments of Dr. Marks, Dr. Nestler, and 5 Dr. Colby.52 Moreover, Dr. Lewis indicated that he considered the results of an IQ 6 test and other objective tests administered to Plaintiff which indicated an anxiety 7 rating of 4, a concentration deficit of 4, an institutionalization rating of 5, and a 8 level of difficulty with authority figures rated at 4. 53 9 The ALJ’s reasoning is flawed both because he failed to articulate how 10 Dr. Lewis’ report was based “primarily” on Dr. Marks’ report and because this 11 Court has concluded that the ALJ did not provide good reasons to discount 12 Dr. Marks’ opinions.

13 5. Conclusion 14 In summary, the ALJ failed to provide good reasons for discounting the 15 opinions of Dr. Marks. Moreover, Dr. Marks’ opinions, if credited would establish 16 disability.

50 AR 1298—1299.

51 Id. AR 407.

53 AR 409.

ORDER RULING ON CROSS MOTIONS TO REMAND - 19 1 III. Conclusion 2 Remand for further administrative proceedings is the usual course when a 3 harmful error occurs in the administrative proceeding, except in rare 4 circumstances.54 This is a rare circumstance where an award of benefits is 5 appropriate.

6 Here, the older regulations apply with regard to the evaluation of medical 7 opinions. The examining sources opined that Plaintiff had limitations, which if 8 credited would be disabling and that those limitations would exist in absence of 9 DAA. Although there was testimony from a reviewing medical expert that the 10 disabling limitations would not exist in absence of DAA, the ALJ failed to 11 articulate good reasons for failing to credit the opinions of the examining source 12 that DAA was not at issue.

13 The case has been remanded twice with the direction that the record be 14 developed as to this issue and the Commissioner has failed to do so at two 15 hearings. There is thus no reason for the Court to conclude that remanding this 16 case, which was originally filed nine years ago in 2015, would result in further 17 development of the record.

18 An award of benefits is warranted.

54 Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).

ORDER RULING ON CROSS MOTIONS TO REMAND - 20 Accordingly, IT IS HEREBY ORDERED: 1. The ALJ’s non-disability decision is REVERSED, and this matter is REMANDED to the Commissioner of Social Security for a calculation of benefits pursuant to sentence four of 42 U.S.C. § 405(g).

2. The Clerk’s Office shall TERM the parties’ briefs, ECF Nos. 6 and 9, enter JUDGMENT in favor of Plaintiff, and CLOSE the case.

IT IS SO ORDERED. The Clerk’s Office is directed to file this order and provide copies to all counsel.

DATED this 25‘ day of July 2024 Bud I flew EDWARD F. SHEA Senior United States District Judge ORDER RULING ON CROSS MOTIONS TO REMAND - 21