Leavell v. Commissioner of Social Security Administration ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Stacey L. Leavell, No. CV-18-00303-PHX-SMB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is Defendant’s denial of Plaintiff’s application for Title II disability 16 insurance benefits under the Social Security Act (“Act”). Plaintiff filed a Complaint (Doc. 17 1) seeking judicial review of the denial, and the Court now considers Plaintiff’s Opening 18 Brief (Doc. 12, “Pl. Br.”), Defendant’s Response (Doc. 16, “Def. Br.”), Plaintiff’s Reply 19 (Doc. 19), and the Administrative Record (Doc. 11, “R.”). Because the Court finds legal 20 error in the decision, it reverses and remands for further administrative proceedings. 21 I. BACKGROUND 22 Plaintiff filed her application on October 29, 2013, alleging disability beginning 23 March 30, 2010 (later amended to January 7, 2012), and was denied initially on April 7, 24 2014 and upon reconsideration on November 4, 2014.1 (R. at 18.) Plaintiff requested a 25 26 1 Plaintiff filed a prior application for disability insurance benefits on April 28, 2010, the denial of which became final on July 16, 2013. (R. at 83–99, 107–110.) While res judicata 27 ordinarily imposes a presumption of non-disability absent a change of circumstances, see 28 Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995), the ALJ here found Plaintiff overcame the presumption by presenting “new and material evidence.” (R. at 18–19.) 1 hearing before an administrative law judge (“ALJ”), which was held on February 25, 2016. 2 (R. at 18.) On June 29, 2016, the ALJ issued her decision finding Plaintiff not disabled, 3 which was upheld by the Appeals Council on November 30, 2017. (R. at 1–3, 18–36.) In 4 reaching this conclusion, the ALJ found Plaintiff was capable of the following: 5 [T]he claimant had the residual functional capacity [“RFC”] to perform light 6 work as defined in 20 CFR § 404.1567(b). She could lift and carry 20 pounds 7 occasionally and 10 pounds frequently, and push/pull as much as she could lift and carry. The claimant could sit for six hours, but needed to alternate to 8 standing for 10 minutes after every hour of sitting; stand for six hours, but 9 needed to alternate to sitting for 10 minutes after every hour of standing; and walk for six hours, but needed to alternate to sitting for 10 minutes after every 10 our of walking. She could frequently use foot controls bilaterally and 11 frequently use hand controls bilaterally. The claimant could frequently handle bilaterally and frequently finger bilaterally. She could occasionally 12 climb ramps and stairs, stoop, kneel, and crawl; never climb ladders and 13 scaffolds; and frequently balance and crouch. The claimant could never be around unprotected heights and moving mechanical parts; could have 14 frequent exposure to humidity and wetness; and needed to avoid 15 concentrated exposure to extreme cold and heat. In addition to normal breaks, the claimant would have been off-task five percent of the time in an eight- 16 hour workday. She was also limited to performing simple, routine tasks and making simple work-related decisions. 17 18 (R. at 25.) In formulating the RFC, the ALJ gave “great weight” to the opinions of state 19 agency medical consultants, Michael Keer, D.O. and Erika Wavak, M.D., but only “little 20 weight” to the opinions of all treating physicians, rejected Plaintiff’s subjective pain and 21 symptom testimony, and only gave “some weight” to subjective testimony from Plaintiff’s 22 husband, Brian Leavell. (R. at 26, 32.) A vocational expert (“VE”) testified that an 23 individual with the above RFC could perform work in the national economy as a booth 24 cashier, office helper, or routing clerk. (R. at 35, 75–76.) Thus, the ALJ found Plaintiff not 25 disabled. 26 Plaintiff brings this appeal alleging the ALJ committed materially harmful error by: 27 (1) rejecting Plaintiff’s symptom testimony in the absence of specific, clear, and 28 convincing reasons supported by substantial evidence in the record as a whole; (2) basing 1 the unfavorable decision solely on medical opinions from state agency doctors who 2 completed assessment forms as part of the initial and reconsideration determinations, 3 which were based on only a limited record review; and (3) giving “little weight”2 to lay 4 evidence in third party agency reports from Plaintiff’s husband. (Pl. Br. at 1–2.) 5 II. LEGAL STANDARD 6 This Court has jurisdiction pursuant to 42 U.S.C. § 405(g), which provides that a 7 reviewing court may affirm, modify, or reverse the decision of the Commissioner, with or 8 without remanding the cause for a rehearing. The district court reviews only those issues 9 raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 10 (9th Cir. 2001). The Court may set aside the decision only if it is not supported by 11 substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 12 2007). “Substantial evidence” is more than a scintilla, but less than a preponderance; it is 13 relevant evidence that a reasonable person might accept as adequate to support a conclusion 14 considering the record as a whole. Id.; see also Jamerson v. Chater, 112 F.3d 1064, 1067 15 (9th Cir. 1997) (“[T]he key question is not whether there is substantial evidence that could 16 support a finding of disability, but whether there is substantial evidence to support the 17 Commissioner’s actual finding that claimant is not disabled.”). Even if the decision 18 contains a legal error, the Court will not reverse the decision where the error is “harmless” 19 as “inconsequential to the ultimate nondisability determination” or where the ALJ’s “path 20 may reasonably be discerned, even if the [ALJ] explains [her] decision with less than ideal 21 clarity.” Alaska Dept. of Envtl. Conservation v. E.P.A., 540 U.S. 461, 497 (2004); Treichler 22 v. Comm’r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014). The Court “must consider the 23 record as a whole and may not affirm simply by isolating a specific quantum of supporting 24 evidence.” Orn, 495 F.3d at 630. “Where the evidence is susceptible to more than one 25 rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 26 must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 27 28 2 In actuality, the ALJ gave this evidence “some weight.” (R. at 26.) 1 III. ANALYSIS 2 To determine whether a claimant is “disabled” under the Act, the ALJ employs a 3 five-step process. See 20 C.F.R. § 404.1520(a)(4). The burden of proof is on the claimant 4 for the first four steps but shifts to the ALJ at the fifth step. Tackett v. Apfel, 180 F.3d 1094, 5 1098 (9th Cir. 1999). First, the claimant must show she is not presently engaged in 6 substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). Second, she must show she 7 suffers from a “severe medically determinable” impairment(s). Id. § 404.1520(a)(4)(ii). 8 Third, she must show that the impairment meets or equals an impairment in appendix 1 of 9 subpart P of 20 C.F.R § 404. Id. § 404.1520(a)(4)(iii). However, if the claimant fails to 10 satisfy step three, she can still make out a prima facie case of disability at step four by 11 showing she is unable to perform any past relevant work and by meeting steps one and two. 12 Id. § 404.1520(a)(4)(iv). The ALJ determines if the claimant met step four by assessing the 13 claimant’s RFC. Id. At the fifth and final step, the burden shifts to the ALJ to show that the 14 claimant is able to perform other work that exists in the national economy based on the 15 claimant’s RFC, age, education, and work experience. Id. §§ 404.1520(a)(4)(v), 16 404.1560(c)(1). 17 A. The opinions of the state examiners qualify as “substantial evidence.” 18 Plaintiff alleges the ALJ erred “by basing the unfavorable decision solely on 19 medical opinions from state agency doctors who completed assessment forms as part of 20 the initial and reconsideration determinations, which were based on only a limited record 21 review.” (Pl. Br. at 10.) The crux of Plaintiff’s argument is that “[t]he sole medical basis 22 for the ALJ decision, whether the nonexamining reviewers’ opinions or the ALJ’s own 23 opinion, was insubstantial evidence.” (Pl. Br. at 16.) 24 In assessing a claimant’s RFC, the ALJ must evaluate each medical opinion in the 25 record, assign a weight to each, and resolve any conflicts between them. 20 C.F.R. 26 § 404.1527(c); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). 27 Generally, opinions of treating physicians are entitled to the greatest weight; opinions of 28 examining, non-treating physicians are entitled to lesser weight; and opinions of non- 1 examining physicians are entitled to the least weight. See Garrison v. Colvin, 759 F.3d 995, 2 1012 (9th Cir. 2014).3 If an ALJ is to depart from this general hierarchy, the ALJ must 3 articulate “specific and legitimate reasons supported by substantial evidence” when 4 crediting the opinion of a non-examining physician over one of a treating physician where 5 the opinions are inconsistent. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). However, 6 “[t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence 7 that justifies the rejection of the opinion of either an examining physician or a treating 8 physician.” Id. at 831. “The opinions of non-treating or non-examining physicians may [] 9 serve as substantial evidence when the opinions are consistent with independent clinical 10 findings or other evidence in the record.” Thomas, 278 F.3d at 957. 11 Dr. Keer and Dr. Wavak reviewed Plaintiff’s application at the initial and 12 reconsideration levels, respectively, and rendered identical opinions. (R. at 32, 125–127, 13 142–143.) Based on a review of the record, both opined Plaintiff could frequently lift or 14 carry 10 pounds, occasionally 20 pounds, and could push or pull as much as she could lift 15 or carry; she could stand, walk, or sit for more than 6 hours in an 8-hour workday; she 16 could occasionally climb ramps or stairs, but could never climb ladders, ropes or scaffolds; 17 she could occasionally balance, stoop, kneel, crouch, or crawl; she had no manipulative 18 limitations; and she needed to avoid concentrated exposure to temperatures, heights, and 19 machinery. (R. at 125–127, 142–143.) The ALJ gave “great weight” to their opinions, 20 finding them “consistent with” an “examination showing abnormal 10-g monofilament 21 wire test with no plantar sensation bilaterally” and an “examination revealing tenderness 22 in the glenohumeral joints, wrists, hands, fingers, hip joints, feet, cervical spine, and lumbar 23 spine.” (R. at 32.) Specifically, the ALJ found the abnormal 10-g monofilament wire test 24 showing no plantar sensation bilaterally (which had led to a diagnosis of diabetic 25 3 The regulations provide that the amount of weight given to any medical opinion depends 26 on a variety of factors, namely: whether the physician examined the claimant; the length, nature, and extent of the treatment relationship (if any); the degree of support the opinion 27 has, particularly from medical signs and laboratory findings; the consistency of the opinion 28 with the record as a whole; the physician’s specialization; and “other factors.” 20 C.F.R. §§ 404.1527(c)(1)–404.1527(c)(6). 1 neuropathy) “supportive of [Plaintiff’s] foot and hand control limitations, her manipulative 2 limitations, and her limitation to never climbing ladders and scaffolds.” (R. at 29.) In 3 discussing Plaintiff’s ankylosing spondylitis, fibromyalgia, and rheumatoid arthritis, the 4 ALJ noted a treating physician’s finding of “tenderness in the glenohumeral joints, wrists, 5 hands, fingers, hip joints, feet, cervical spine, and lumbar spine.” (R. at 27.) With respect 6 to these three conditions, the ALJ found that these “observations and findings are 7 supportive of [Plaintiff’s] limitation to light work, her need to alternate from sitting, 8 standing, and walking after every hour for 10 minutes, her environmental limitations, and 9 her need to be off-task five percent of the time.” (R. at 27.) 10 Turning to Plaintiff’s argument, the Court is not convinced that the “sole medical 11 basis” of the ALJ’s decision was “insubstantial evidence.” As noted by the ALJ, other 12 evidence in the record supports the limitations opined to by the nonexamining physicians; 13 thus, their opinions themselves are substantial evidence. Moreover, the ALJ also 14 considered other medical evidence in formulating Plaintiff’s RFC besides these opinions. 15 Despite having afforded “little weight” to the opinions of Plaintiff’s treating physicians 16 (which Plaintiff does not dispute4), the ALJ nevertheless referenced their treatment notes 17 in prescribing additional limitations in the RFC assessment in addition to what the 18 nonexamining physicians prescribed. (R. at 31–32.) For instance, the ALJ found that 19 Plaintiff needed to “alternate from sitting, standing, and walking after every hour for 10 20 minutes” based on “observations and findings” by her treating physician and physician 21 assistant at Arizona Arthritis and Rheumatology Associates, which included the 22 aforementioned finding of tenderness in her joints. (R. at 27.) While Dr. Keer and Dr. 23 Wavak opined that Plaintiff could sit, stand, or walk for 6 hours, neither prescribed this 24 additional limitation. Additionally, the ALJ limited Plaintiff’s work to “simple, routine 25 tasks and making simple work-related decisions” based on “observations” made by her 26 treating psychiatrists. (R. at 31.) Again, neither Dr. Keer nor Dr. Wavak prescribed such a 27 4 Because the Court only reviews issues brought by a party challenging the decision, it will 28 presume the ALJ’s reasons to assign “little weight” to the treating physicians’ opinions are specific and legitimate given that Plaintiff does not proffer any argument to the contrary. 1 limitation. Moreover, while both Dr. Keer and Dr. Wavak opined that Plaintiff should avoid 2 “concentrated exposure” to “hazards (machinery, heights, etc.),” the ALJ also noted that 3 treatment notes from a treating physician also supported this restriction where the physician 4 had diagnosed Plaintiff with narcolepsy. (R. at 28.) 5 In response, Plaintiff alleges that the source of these additional limitations was not 6 the medical evidence, but rather the ALJ’s own lay interpretation of the medical record, 7 which would not be substantial evidence. The Court finds this allegation without merit. 8 The ALJ has a duty to assess a claimant’s residual functional capacity “based on all of the 9 relevant medical and other evidence” and a duty to resolve conflicts between conflicting 10 medical opinions. 20 C.F.R. § 404.1545(a)(3); Morgan, 169 F.3d at 601. These duties 11 necessarily compel the ALJ to draw inferences from medical opinion evidence. 12 Plaintiff, however, alleges that because Dr. Keer and Dr. Wavak completed their 13 assessments in March 2014 (R. at 127) and November 2014 (R. at 143), respectively, and 14 the hearing before the ALJ occurred in February 2016, their opinions “could not have 15 fulfilled all of the regulatory requirements for evaluation of medical opinion evidence.” 16 (Pl. Br. at 11.) In support, Plaintiff cites 20 C.F.R. §§ 404.1527(c)(3)–404.1527(c)(6). 17 These regulations delineate factors to be considered in weighing a medical opinion. In 18 particular, 20 C.F.R. § 404.1527(c)(4) provides that “the more consistent a medical opinion 19 is with the record as a whole, the more weight we will give to that medical opinion.” This 20 and the other regulations cited by Plaintiff appear under 20 C.F.R. § 404.1527(c), which 21 begins with, “How we weigh medical opinions” (emphasis added). “We” is defined as “the 22 Social Security Administration or the State agency making the disability . . . 23 determination.” 20 C.F.R. § 404.1502(j). Thus, these regulations provide a framework to 24 the ALJ, as the one responsible for the disability determination here, not to physicians 25 rendering medical opinions. Neither the regulations cited by Plaintiff nor any other 26 regulations require a physician to have considered the entire record (the one before the ALJ 27 and before this Court) in order to render a competent medical opinion. Rather, it is the job 28 of the ALJ to consider the record as a whole and to determine, based on her evaluation of 1 the record as a whole, how consistent a particular medical opinion is with the it. Here, the 2 ALJ did just that and cited to medical evidence of record which the opinions were 3 consistent with. Therefore, the Court finds no error as the ALJ’s RFC formulation is 4 supported by substantial evidence. 5 B. The ALJ improperly discounted Plaintiff’s testimony. 6 Plaintiff alleges the ALJ erred in rejecting Plaintiff’s symptom testimony by failing 7 to articulate specific, clear, and convincing reasons supported by substantial evidence in 8 the record as whole. (Pl. Br. at 6.) 9 “Because symptoms sometimes suggest a greater severity of impairment than can 10 be shown by objective medical evidence alone,” the ALJ also considers a claimant’s 11 statements regarding her pain and symptoms in determining the extent to which they 12 diminish her capacity for work. 20 C.F.R. § 404.1529(c)(3). Before evaluating such 13 testimony, the ALJ first determines whether a claimant has presented “objective medical 14 evidence from an acceptable medical source” of an “impairment(s) which could reasonably 15 be expected to produce the pain or other symptoms alleged.” Id. § 404.1529(a). Next, the 16 ALJ evaluates the alleged “intensity and persistence” of the symptoms to determine how 17 they limit a claimant’s capacity for work. Id. § 404.1529(c)(1). Since symptoms and pain 18 “are subjective and difficult to quantify,” a claimant’s pain and symptoms will only be 19 determined to diminish a claimant’s work capacity to the extent that they can be 20 “reasonably be accepted as consistent with the objective medical evidence and other 21 evidence” in the record. Id. § 404.1529(c)(3). However, a claimant’s testimony “cannot be 22 rejected solely because the objective medical evidence does not support the severity of her 23 impairment.” Thomas, 278 F.3d at 959; see also Burch v. Barnhart, 400 F.3d 676, 681 (9th 24 Cir. 2005) (“Although lack of medical evidence cannot form the sole basis for discounting 25 pain testimony, it is a factor that the ALJ can consider in [the] credibility analysis.”). 26 In evaluating the credibility of a claimant’s testimony, the ALJ may consider the 27 claimant’s “reputation for truthfulness, inconsistencies either in [her] testimony or between 28 [her] testimony and [her] conduct, [her] daily activities, [her] work record, and testimony 1 from physicians and third parties concerning the nature, severity, and effect of the 2 symptoms of which [she] complains.” Light v. Soc. Sec. Admin., Comm’r, 119 F.3d 789, 3 792 (9th Cir. 1997); see 20 C.F.R. § 404.1529(c)(4). Unless there is evidence of 4 malingering by the claimant, an ALJ may only discredit pain or symptom testimony for 5 reasons that are specific, clear, and convincing. Burch, 400 F.3d at 680. The Court reviews 6 “only the reasons provided by the ALJ in the disability determination and may not affirm 7 the ALJ on a ground upon which [s]he did not rely.” Garrison, 759 F.3d at 1010. Moreover, 8 discussion of issues not in the section of the ALJ’s decision addressing a claimant’s 9 symptom testimony are not properly considered credibility findings. Trevizo v. Berryhill, 10 871 F.3 664, 682 n.10 (9th Cir. 2017). General findings pertaining to a claimant’s 11 credibility are not sufficient. Lester, 81 F.3d at 821. Likewise, “providing a summary of 12 medical evidence in support of a residual functional capacity finding is not the same as 13 providing clear and convincing reasons for finding the claimant’s symptom testimony not 14 credible.” Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (emphasis in 15 original). Rather, “the ALJ must specifically identify the testimony she or he finds not to 16 be credible and must explain what evidence undermines the testimony.” Holohan v. 17 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). In doing so, the ALJ need not engage in 18 “extensive” analysis but should, at the very least, “provide some reasoning in order for [a 19 reviewing court] to meaningfully determine whether [her] conclusions were supported by 20 substantial evidence.” Brown-Hunter, 806 F.3d at 494. 21 Here, the ALJ cited no evidence of malingering and found Plaintiff had underlying 22 severe impairments: ankylosing spondylitis, fibromyalgia, rheumatoid arthritis, type I 23 diabetes mellitus, Crohn’s disease, gastroparesis, narcolepsy, diabetic neuropathy, obesity, 24 anxiety disorder, and major depressive disorder. (R. at 21.) However, the ALJ found 25 Plaintiff’s testimony regarding the “intensity, persistence, and limiting effects” of her 26 symptoms “not entirely consistent with the medical evidence and other evidence in the 27 record for the reasons explained in this decision.” (R. at 26.) Moreover, following a 28 discussion of the medical evidence for each impairment, the ALJ concluded that her 1 assessment of Plaintiff’s RFC “is supported by the objective evidence contained in the 2 record” and “[t]reatment notes in the record do not sustain the claimant’s allegation of 3 disabling conditions.” (R. at 33.) 4 The Court finds error. An ALJ may not reject a claimant’s testimony solely because 5 the objective medical evidence does not support the severity of symptoms alleged. See 6 Thomas, 278 F.3d at 959. Likewise, a summary of the medical evidence in support of an 7 RFC is not the same as providing clear and convincing reasons for finding the claimant’s 8 symptom testimony not credible. See Brown-Hunter, 806 F.3d at 494. Here, the ALJ does 9 both. The ALJ articulates no other reasons (i.e. inconsistencies between testimony and 10 daily activities) nor does she discuss any “other evidence” besides medical evidence in 11 concluding that Plaintiff’s symptoms are not as severe as alleged. Defendant, however, 12 points to inconsistencies in the record to support the ALJ’s adverse credibility 13 determination. (Def. Br. at 5–6.) While such inconsistencies may indeed undermine 14 Plaintiff’s credibility, nowhere in the decision does the ALJ mention them or assert their 15 existence as a basis for discrediting the testimony. Because the Court may not affirm the 16 ALJ on a ground which the ALJ did not rely, Defendant’s reference to these inconsistencies 17 does nothing to save the ALJ’s erroneous discrediting of Plaintiff’s testimony. As far as 18 the Court can tell based on the literal text of the decision, the only “clear” reasons for 19 rejecting Plaintiff’s testimony are the ones previously mentioned, which both only rely on 20 inconsistencies between her testimony and objective medical evidence. Thus, because the 21 ALJ based the adverse credibility determination solely on a lack of supporting objective 22 evidence and articulated no other valid reason, she erred. 23 C. The ALJ properly considered lay opinion testimony. 24 Nonmedical (“lay witness”) sources may testify as to how a claimant’s symptoms 25 affect her activities of daily living and ability to work. 20 C.F.R. § 404.1529(a). Such 26 testimony is “competent evidence” that an ALJ may not disregard unless he or she gives 27 “reasons germane to each witness for doing so.” Diedrich v. Berryhill, 874 F.3d 634, 640 28 (9th Cir. 2017). 1 Here, the ALJ gave “some weight” to written testimony from Plaintiff’s husband, 2 Brian Leavell. (R. at 26.) The ALJ reasoned that “although Mr. Leavell has frequent close 3 contact with the claimant and can opine as to her level of functioning at home, he also does 4 not have training as an objective medical source.” (R. at 26.) The Court finds this reason 5 to be germane. In his third party function report, Mr. Leavell opined that Plaintiff’s 6 “illnesses, injuries, or conditions” affect a number of Plaintiff’s abilities, including: lifting, 7 squatting, bending, standing, reaching, walking, sitting, kneeling, hearing, stair climbing, 8 seeing, memory, completing tasks, concentration, understanding, following instructions, 9 and using hands. (R. at 26, citing R. at 300.) Whether or not Plaintiff’s impairments are 10 actually responsible for what Mr. Leavell opines to involves a medical determination. The 11 ALJ properly considered his opinion insofar as to what he can actually opine to as a lay 12 person based on his close contact with Plaintiff. 13 IV. REMEDY 14 The credit-as-true rule provides that a remand for calculation and award of benefits 15 is appropriate when: (1) the record has been fully developed and further administrative 16 proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally 17 sufficient reasons for rejecting claimant testimony; and (3) if the improperly discredited 18 testimony were credited as true, the ALJ would be required to find the claimant disabled 19 on remand. Garrison, 759 F.3d at 1020. However, a court need not apply this rule rigidly 20 and may instead remand for further administrative proceedings “when even though all 21 conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole 22 creates serious doubt that a claimant is, in fact, disabled.” Id. at 1021. 23 Here, the Court finds that conditions (1) and (3) of the rule are not satisfied. At the 24 hearing, the VE testified that an individual with Plaintiff’s RFC who additionally: would 25 be off task as much as ten percent, had one or more unexcused absences a month, or 26 “need[ed] to lie down over the course of the workday for a period of multiple hours,” would 27 be precluded from work. (R. at 77.) Thus, if Plaintiff’s testimony establishes one of these 28 three, then her testimony, if credited as true, would require the ALJ to find her disabled. || However, without further development of the record, it is not possible for this Court to 2|| ascertain whether the Plaintiffs testimony establishes one of these three scenarios. 3|| Specifically, because of its inability to engage in factfinding as a reviewing court, this Court cannot opine as to how much Plaintiff would be off task or how often Plaintiff would 5 || be absent. Moreover, Plaintiff merely testifying that she will “usually lay down once a day” 6|| for “about two hours” after taking her kids to school does not establish that she needs to do □□ so over the course of the workday for a period of multiple hours. (R. at 62.) Therefore, 8 || because the credit-as-true rule does not apply, the appropriate remedy is a remand for 9|| further administrative proceedings. 10 IT IS THEREFORE ORDERED, reversing the decision of the Commissioner of |} Social Security and remanding for further administrative proceedings consistent with this Order. 13 IT IS FURTHER ORDERED, directing the Clerk of Court to enter judgment 14]| accordingly and terminate this case. 15 Dated this 17th day of December, 2019. 16 17 = 7h . 18 SO ts 19 AXonorable Susan M.Bmovich = United States District Judge 20 21 22 23 24 25 26 27 28 -12-