Larrison v. Commissioner of Social Security Administration ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tyler Larrison, No. CV-18-08342-PCT-DWL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the Commissioner of Social Security’s (“Commissioner”) denial of 16 Plaintiff’s application for Title XVI Supplemental Security Income under the Social 17 Security Act (“Act”). Plaintiff filed a Complaint (Doc. 1) seeking judicial review of the 18 decision, and the Court now considers Plaintiff’s Opening Brief (Doc. 13, “Pl. Br.”), the 19 Commissioner’s Response Brief (Doc. 16, “Def. Br.”), Plaintiff’s Reply Brief (Doc. 17, 20 “Reply”), and the Administrative Record (Doc. 12, “R.”). For the following reasons, the 21 Court will reverse and remand for further proceedings. 22 I. BACKGROUND 23 Plaintiff was born on July 31, 1995. (R. at 475.) He was adopted at age three and 24 suffers from certain cognitive deficits, likely due to drug and alcohol abuse by his 25 biological mother during pregnancy. (Id. at 481–538, 584.) He repeated kindergarten, was 26 enrolled in school until fifth grade, and was home-schooled until high school. (Id. at 478.) 27 While enrolled, he was in individualized education classes. (Id. at 478.) He also received 28 speech therapy for most of his life. (Id.) The highest grade he completed was tenth grade. 1 (Id. at 45.) 2 Plaintiff filed his application on September 16, 2014, alleging disability as of March 3 1, 1999. (Id. at 15.) Plaintiff alleges he is unable to work because he has trouble 4 remembering and comprehending tasks. (Id. at 47, 241.) He also states he cannot count 5 money. (Id. at 47, 245.) The Commissioner denied the application initially and upon 6 reconsideration, and a hearing before an administrative law judge (“ALJ”) was held. (Id.) 7 The ALJ found Plaintiff was not disabled in a written decision that was upheld by the 8 Appeals Council. (Id. at 15–28, 1–3.) The ALJ found that Plaintiff had the severe 9 impairments of cognitive disorder, attention-deficit hyperactivity disorder, and borderline 10 intellectual functioning. (Id. at 17.) The ALJ also found that Plaintiff had the residual 11 functional capacity (“RFC”) to perform work at all exertional levels but with certain non- 12 exertional limitations. (Id. at 22.) Specifically, Plaintiff could “perform simple, routine 13 tasks that may be learned by demonstration and which do not require the ability to multi- 14 task”; “make simple, work related decisions in an environment with few changes and free 15 from fast-paced production requirements, like those found in assembly line work”; and 16 “have occasional and superficial interaction with coworkers and the public, such that the 17 interaction is incidental to the task performed.” (Id.) Based on this RFC, as well as 18 Plaintiff’s age, education, and work experience and testimony from a vocational expert 19 (“VE”) (id. at 70-72), the ALJ found Plaintiff could perform work as a cleaner II and hand 20 packager and was therefore not disabled. (Id. at 27–28.) 21 II. LEGAL STANDARD 22 In determining whether to reverse an ALJ’s decision, the district court reviews only 23 those issues raised by the party challenging the decision. Lewis v. Apfel, 236 F.3d 503, 517 24 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability determination 25 only if the determination is not supported by substantial evidence or is based on legal error. 26 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a 27 scintilla, but less than a preponderance; it is relevant evidence that a reasonable person 28 might accept as adequate to support a conclusion considering the record as a whole. Id. 1 To determine whether substantial evidence supports a decision, the Court must consider 2 the record as a whole and may not affirm simply by isolating a “specific quantum of 3 supporting evidence.” Id. Generally, “[w]here the evidence is susceptible to more than 4 one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 5 must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations 6 omitted). 7 To determine whether a claimant is disabled for purposes of the Act, the ALJ 8 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 9 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 10 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 11 the claimant is presently engaging in substantial gainful activity. 12 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. 13 At step two, the ALJ determines whether the claimant has a “severe” medically 14 determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the 15 claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether 16 the claimant’s impairment or combination of impairments meets or medically equals an 17 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 18 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. 19 Id. If not, the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant’s 20 RFC and determines whether the claimant is still capable of performing past relevant work. 21 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. 22 If not, the ALJ proceeds to the fifth and final step, where he determines whether the 23 claimant can perform any other work in the national economy based on the claimant’s RFC, 24 age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant 25 is not disabled. Id. If not, the claimant is disabled. Id. 26 … 27 … 28 … 1 III. ANALYSIS 2 A. The ALJ’s Sole Reason For Rejecting The Opinions Of Plaintiff’s Treating 3 Psychiatrist Is Not Supported By Substantial Evidence 4 Plaintiff alleges the ALJ erred in rejecting the opinions of his treating psychiatrist, 5 Dr. Jeffrey Penney. (Pl. Br. at 7-10.) Dr. Penney saw Plaintiff eleven times between May 6 2015 and February 2017. (R. at 534–39, 582–83, 600–13.) He rendered four separate but 7 similar opinions concerning Plaintiff’s mental abilities. (Id. at 483–90 [September 2014], 8 584–90 [August 2016], 593–99 [December 2016], 618–24 [May 2017].) Plaintiff alleges 9 that Dr. Penney’s opinions compel a finding of disability under Listing 12.11 and/or when 10 coupled with the VE’s testimony. (Pl. Br. at 7, 15.) 11 When evaluating a medical opinion, the ALJ considers: (1) whether the physician 12 examined the claimant; (2) the length, frequency, nature, and extent of any treatment 13 relationship; (3) the degree of support the opinion has, particularly from objective medical 14 evidence; (4) the consistency of the opinion with the record as a whole; (5) the physician’s 15 specialization; and (6) “other factors.” 20 C.F.R. § 416.927(c). Generally, opinions of 16 treating physicians are entitled to the greatest weight; opinions of examining, non-treating 17 physicians are entitled to lesser weight; and opinions of non-examining, non-treating 18 physicians are entitled to the least weight.1 Garrison v. Colvin, 759 F.3d 995, 1012 (9th 19 Cir. 2014). If the ALJ discredits a controverted opinion of a treating or examining 20 physician, the ALJ must provide “specific and legitimate” reasons supported by substantial 21 evidence. Id. An ALJ satisfies the “substantial evidence” requirement by providing a 22 “detailed and thorough summary of the facts and conflicting clinical evidence, stating his 23 [or her] interpretation thereof, and making findings.” Id. 24 Here, the ALJ gave “little weight” to Dr. Penney’s opinions for one reason— 25 because she found that “the extreme limitations [to which] he has opined are not consistent 26 27 1 A treating source’s opinion is given “controlling weight” if it is “well-supported” by objective medical evidence and is “not inconsistent with other substantial evidence” in 28 the record. 20 C.F.R. § 416.927(c)(2). Those conditions are not present here. 1 with his treatment notes, which fail to demonstrate such extreme limitations.” (R. at 25.) 2 This reason is specific and legitimate, but it is not supported by substantial evidence. 3 Although the ALJ provided a detailed summary of the facts and clinical evidence, she failed 4 to explain with any precision why this summary was inconsistent with Dr. Penney’s 5 opinions. It is not sufficient for an ALJ to identify a treating physician’s opinion, 6 summarize the clinical evidence, and then offer the ipse dixit that the two are in conflict— 7 reasoning and explanation are required. Given this backdrop, the Court is impermissibly 8 left to speculate about what the specific conflicts in the evidence may be, how the ALJ 9 interpreted the evidence, and how the ALJ reached her conclusion that “the extreme 10 limitations [Dr. Penney] has opined are not consistent with his treatment notes.” The Court 11 cannot affirm based on such speculation. Bray v. Comm’r of Soc. Sec., 554 F.3d 1219, 12 1226 (9th Cir. 2009) (“Long-standing principles of administrative law require us to review 13 the ALJ’s decision based on the reasoning and factual findings offered by the ALJ—not 14 post hoc rationalizations that attempt to intuit what the adjudicator may have been 15 thinking.”). 16 B. The ALJ’s Findings Regarding Plaintiff’s Daily Activities Are Not 17 Supported By Substantial Evidence 18 Plaintiff’s next assignment of error concerns the ALJ’s determination that his 19 symptom testimony was inconsistent with his activities of daily living. (Pl. Br. at 9–15.) 20 Plaintiff alleged, in his application materials and during his hearing testimony, that 21 he has problems reading and remembering, can only pay attention for 2-3 minutes at a time, 22 and cannot manage his finances. (R. at 47-70, 241-48.) Plaintiff also alleged that he needs 23 reminders to take showers and do chores, that he has problems remembering shows he 24 watches, and that, in a normal day, he sits at home, watches television, and drives to the 25 store. (Id.) 26 The ALJ found that “[a]lthough the record clearly supports some degree of mental 27 limitation, [Plaintiff’s] allegations are not wholly consistent with his activities of daily 28 living.” (Id. at 24.) First, the ALJ found that Plaintiff’s ability to watch Netflix undermined 1 his allegations because “watch[ing] television shows on Netflix . . . requires not only 2 concentration and focus to watch the shows, but also the ability to call up the application 3 of the viewing device and navigate the application, which would also require the ability to 4 remember the steps necessary to access the television shows.” (Id.) The ALJ also noted 5 that Plaintiff was able to describe the shows he was watching on Netflix with “a notable 6 level of sophistication.” (Id.) Second, the ALJ found that Plaintiff’s ability to play two 7 video games, Call of Duty and Candy Crush, “shows a certain degree of ability to 8 understand, remember, and apply information, as well as maintain persistence, pace, or 9 rate.” (Id.) The ALJ noted that Plaintiff testified he sets up “bots” as opponents when 10 playing Call of Duty (id.) and asserted that playing Candy Crush “requires a player to swap 11 adjacent candies among several on the gameboard to form rows or columns of at least three 12 matching-colored candies.” (Id.) 13 Absent evidence of malingering, the ALJ may only discount a claimant’s statements 14 and testimony for “specific, clear and convincing” reasons that are supported by substantial 15 evidence. Molina, 674 F.3d at 1112; Thomas; 278 F.3d at 959. General findings are 16 insufficient. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). Rather, “the 17 ALJ must specifically identify the testimony she or he finds not to be credible and must 18 explain what evidence undermines the testimony.” Id. “Although the ALJ’s analysis need 19 not be extensive, the ALJ must provide some reasoning in order for [the Court] to 20 meaningfully determine whether the ALJ’s conclusions were supported by substantial 21 evidence.” Treichler, 775 F.3d at 1099. “[T]he ALJ may discredit a claimant’s testimony 22 when the claimant reports participation in everyday activities indicating capacities that are 23 transferable to a work setting.” Molina, 674 F.3d at 1113. However, a claimant’s daily 24 activities “may be grounds for discrediting the claimant’s testimony to the extent that they 25 contradict claims of a totally debilitating impairment.” Id. See also Valentine v. Astrue, 26 574 F.3d 685, 694 (9th Cir. 2009) (affirming ALJ’s finding that while claimant’s daily 27 activities “did not suggest [he] could return to his old job,” such activities “did suggest that 28 [his] later claims about the severity of his limitations were exaggerated”). 1 As an initial matter, the Court disagrees with Plaintiff’s argument that the ALJ 2 committed legal error by determining that his Netflix and video game usage constituted 3 potential bases for discounting his symptom testimony. Orn v. Astrue, 495 F.3d 625 (9th 4 Cir. 2007), does not, as Plaintiff contends (Pl. Br. at 11), categorically prohibit the 5 consideration of such activities. In Orn, the Ninth Circuit held that an ALJ erred by finding 6 that reading, watching television, and coloring in coloring books were skills transferable 7 to the role of a “surveillance system monitor.” Id. at 639. This was because “a surveillance 8 system monitor is a security position that requires sustained concentration and attention, as 9 well as the ability to act immediately in emergencies” and “reading, watching television, 10 and coloring in coloring books are activities that are so undemanding that they cannot be 11 said to bear a meaningful relationship to the activities of the workplace.” Id. 12 Here, in contrast, the ALJ didn’t find that Plaintiff could perform a security position 13 that requires sustained concentration and attention. To the contrary, the ALJ determined 14 that Plaintiff’s RFC would only allow him “to perform simply, routine tasks . . . in an 15 environment with few changes and free from fast-paced production requirements.” (R. at 16 22.) Thus, if there were substantial evidence showing that Plaintiff engaged in 17 sophisticated, fast-paced tasks requiring memory and concentration when watching Netflix 18 or playing video games, such evidence could function as a specific, clear and convincing 19 reason for rejecting his testimony about his limitations. 20 Nevertheless, the problem here is that the record is not fully developed concerning 21 Plaintiff’s Netflix viewing and video-game playing—and, thus, the ALJ’s proffered 22 reasons are not supported by substantial evidence. For example, the sum total of Plaintiff’s 23 testimony concerning his Netflix viewing is that is favorite television show is “[a]nything 24 on Netflix I haven’t seen before.” (R. at 48-49.) Although Plaintiff followed this answer 25 by providing a brief summary of the plots of several shows and movies he’d previously 26 watched, at no point did Plaintiff describe how he interacts with the Netflix application. 27 Thus, the ALJ’s conclusion that Plaintiff has “the ability to call upon the [Netflix] 28 application of the viewing device and navigate the application, which would also require 1 the ability to remember the steps necessary to access the television shows” (R. at 24) is 2 speculation—it’s possible, for example, that Plaintiff’s parents (he lives on a trailer on their 3 property) may help him navigate the application. 4 Similarly, Plaintiff’s only testimony concerning Candy Crush was that, when asked 5 whether he has “any games you like to play,” he responded: “That Candy Crush game. But 6 that got boring after a while, because they wouldn’t get paid for it.” (R. at 51.) Although 7 the ALJ apparently concluded, based on this one statement, that Plaintiff had mastered 8 Candy Crush’s technical details and therefore must possess an ability to concentrate and 9 perform repetitive tasks (“That game requires a player to swap adjacent candies among 10 several on the gameboard to form rows or columns of at least three matching-colored 11 candies,” see R. at 24), this conclusion is based on speculation—it does not follow, from 12 Plaintiff’s brief statement that he stopped playing the game because it “got boring,” that 13 Plaintiff mastered the game before the boredom kicked in. Although this is a possible 14 explanation, more foundation is required. It’s possible, for example, that Plaintiff became 15 bored because he couldn’t figure out how to play. 16 Finally, and in a similar vein, Plaintiff’s brief testimony concerning Call of Duty is 17 that he preferred to “set up bots” and play against them because he found the alternative— 18 going online to play against other people—“impossible” and unenjoyable and “[t]oo much 19 drama.” (R. at 52-53.) The record contains no evidence concerning the level of 20 concentration and cognition (if any) that is required to “set up bots” in Call of Duty, so the 21 ALJ’s conclusion that such activity is inconsistent with Plaintiff’s claimed limitations is 22 another example of a proffered rationale not being supported by substantial evidence. 23 C. The ALJ’s Finding That Plaintiff’s Impairments Did Not Satisfy Listing 24 12.11 Is Rational And Supported By Substantial Evidence 25 Plaintiff alleges that he has “marked” and/or “extreme” limitations in his abilities to 26 “understand, remember, or apply information” and “interact with others” and thus the ALJ 27 should have found him disabled under Listing 12.11.2 (Pl. Br. at 5–7; Reply at 1.) 28 2 The Commissioner utilizes a “five-point rating scale” in evaluating a claimant’s 1 To be disabled under Listing 12.11, a claimant must show an “extreme” limitation 2 in one, or a “marked” limitation in two, area(s) of mental functioning, which include the 3 abilities to “understand, remember, or apply information” and “interact with others.” 20 4 C.F.R. § 404, Subpt. P, App. 1, Listing 12.11(B). The former “refers to the abilities to 5 learn, recall, and use information to perform work activities.” Id. at 12.00(E)(1).3 The latter 6 “refers to the abilities to relate to and work with supervisors, co-workers, and the public.” 7 Id. at 12.00(E)(2).4 8 Here, the ALJ found Plaintiff had only “moderate” limitations in these areas. (R. at 9 19.)5 Regarding Plaintiff’s ability to understand, remember, or apply information, the ALJ 10 cited various neuropsychological tests revealing borderline or low intellectual functioning 11 and certain findings made by Dr. Penney. (Id.) In August 2016, Dr. Penney noted Plaintiff 12 had “impaired” judgment, insight, fund of knowledge, and memory and “tangential” 13 thought process. (Id. at 608-09.) However, Dr. Penney’s progress notes from November 14 2016 state that Plaintiff had “intact” judgment and insight and “logical” thought process. 15 16 ability to function in a given mental area “independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. § 404, Subpt. P, App. 1, Listing 12.00(F)(2). A limitation in 17 a given area may be categorized as: none, mild, moderate, marked, or extreme. Id. A 18 “marked” limitation means the ability is “seriously limited.” Id. at 12.00(F)(2)(d). An “extreme” limitation means the claimant lacks the ability. Id. at 12.00(F)(2)(e). 19 3 “Examples include: Understanding and learning terms, instructions, procedures; 20 following one- or two-step oral instructions to carry out a task; describing work activity to someone else; asking and answering questions and providing explanations; recognizing a 21 mistake and correcting it; identifying and solving problems; sequencing multi-step 22 activities; and using reason and judgment to make work-related decisions.” Id. at 12.00(E)(1). 23 4 “Examples include: cooperating with others; asking for help when needed; handling 24 conflicts with others; stating own point of view; initiating or sustaining conversation; 25 understanding and responding to social cues (physical, verbal, emotional); responding to requests, suggestions, criticism, correction, and challenges; and keeping social interactions 26 free of excessive irritability, sensitivity, argumentativeness, or suspiciousness.” Id. at 27 12.00(E)(2). 5 A “moderate” limitation means that a claimant’s ability to function in the respective 28 area is “fair.” Id. at 12.00(F)(2)(c). 1 (Id. at 610–11.) And in February 2017, Dr. Penney noted that Plaintiff had “intact” 2 judgment and insight and a “normal” fund of knowledge. (Id. at 612–13.) The ALJ also 3 noted that Plaintiff plays Xbox, hangs out with a friend, and can remember his height, 4 weight, and date of birth. (Id. at 19.) For all of these reasons, the ALJ concluded that 5 Plaintiff had a “moderate” limitation in understanding, remembering, or applying 6 information. (Id.) 7 This conclusion was rational and supported by substantial evidence. Even if another 8 interpretation of the evidence could have directed a finding of “marked” limitation in this 9 area, the ALJ’s interpretation (yielding a finding of only “moderate” limitation) was 10 rational and is therefore owed deference. 11 Next, regarding Plaintiff’s ability to interact with others, the ALJ again found a 12 “moderate” limitation. (Id. at 19.) The ALJ noted that Plaintiff reported in May 2016 that 13 he was doing “pretty good” and denied anger. (Id., citing id. at 606–07.) On the other hand, 14 the ALJ also noted that in August 2016 Plaintiff was “resistant to performing chores at 15 home.” (Id.) In November 2016, Plaintiff “reported that he gets mad when his parents tell 16 him to take a shower or to change his clothes.” (Id., citing id. at 608–09.) Last, the ALJ 17 noted that in February 2017 Plaintiff was “playing Xbox and hanging out with a friend.” 18 (Id., citing id. at 610-11.) For all of these reasons, the ALJ concluded that Plaintiff has a 19 “moderate” limitation in interacting with others. (Id.) 20 This conclusion was also rational and supported by substantial evidence. Although 21 the evidence shows some degree of limitation in interacting with others, as indicated by 22 Plaintiff’s negative interactions with his parents, Plaintiff stated he hangs out with friends 23 and his cousin6 and gets along well with authority figures. (Id. at 22, 247, 612.) Even if 24 another interpretation of the evidence could have directed a finding of “marked” limitation 25 in this area, the ALJ’s interpretation (yielding a finding of only “moderate” limitation) was 26 rational and is therefore owed deference. 27 6 Specifically, in response to the question “Do you spent time with others?”, Plaintiff 28 answered yes in his application and wrote: “Hang out with my [cousin] and watch tv.” (R. at 245.) Plaintiff also wrote that he “go[es] to movie 2 time a month.” (Id.) 1 D. The ALJ Failed To Demonstrate That The Opinions Of Dr. Lazorwitz And 2 Dr. Waldman Are “Consistent With Independent Clinical Findings Or 3 Other Evidence In The Record.” 4 Plaintiff alleges that the opinions of Dr. Nicole Lazorwitz, Psy.D., and Dr. Larry 5 Waldman, Ph.D., cannot constitute “substantial evidence” sufficient to reject Dr. Penney’s 6 opinion or to support the ALJ’s RFC assessment.7 (Pl. Br. at 15–19.) Drs. Lazorwitz and 7 Waldman are non-examining, state agency psychologists who reviewed Plaintiff’s 8 application at the initial and reconsideration levels, respectively, and rendered opinions as 9 to his mental RFC. (R. at 95–97 [Lazorwitz opinion], 114–15 [Waldman opinion].) 10 “The opinions of non-treating or non-examining physicians [or psychologists] may 11 . . . serve as substantial evidence when the opinions are consistent with independent clinical 12 findings or other evidence in the record.” Thomas, 278 F.3d at 957; see also 20 C.F.R. 13 § 404.1527(c)(3) (stating that the weight given to opinions of non-examining sources 14 depends on “the degree to which they provide supporting explanations for their medical 15 opinions” and “the degree to which these medical opinions consider all of the pertinent 16 evidence”). 17 Here, the ALJ gave “great weight” to the non-examining psychologists’ opinions, 18 finding them “generally consistent with the evidence as a whole, which demonstrates that 19 [Plaintiff] remains capable of performing unskilled work.” (Id. at 24.) In particular, the 20 ALJ noted that both had opined that Plaintiff “is able to remember basic workplace 21 locations and procedures; remember and understand simple instructions; carryout simple 22 instructions; follow simple work-like procedures; and make simple work-related 23 decisions.” (Id.) Moreover, the ALJ noted that both had opined that Plaintiff “appeared to 24 have a fair ability to sustain attention throughout extended periods of time; a fair ability to 25 26 7 It does not appear that the ALJ actually relied on these opinions to support her rejection of Dr. Penney’s opinions—nowhere in section of the decision discussing Dr. 27 Penney’s opinions does the ALJ mention their opinions. As previously discussed, the sole 28 (and erroneous) reason identified by the ALJ for rejecting Dr. Penney’s opinions was inconsistency with his own treatment notes. 1 perform at a consistent pace particularly when engaged in simple work; and an adequate 2 ability to maintain a regular schedule.” (Id.) 3 As an initial matter, the Court disagrees with Plaintiff that non-examining 4 physicians’ opinions cannot amount to substantial evidence as “a matter of law.” (Pl. Br. 5 at 19.) As noted, “[t]he opinions of non-treating or non-examining physicians may also 6 serve as substantial evidence when the opinions are consistent with independent clinical 7 findings or other evidence in the record.” Thomas, 278 F.3d at 957. Nevertheless, here, 8 the ALJ failed to explain why the opinions of Dr. Lazorwitz and Dr. Waldman had the 9 requisite level of consistency. The ALJ merely summarized their opinions and then 10 asserted, with no explanation or supporting citations, that “they are generally consistent 11 with the evidence as a whole.” (R. at 24.) This sort of unreasoned assertion makes 12 meaningful review impossible. Moreover, the opinions themselves are devoid of any 13 meaningful analysis or citations to specific evidence, stating only that “[a]vailable data” 14 supports the doctors’ findings. (R. at 96, 115.) 15 IV. REMEDY 16 The credit-as-true rule provides that a remand for calculation and award of benefits 17 rather than a remand for further proceedings is appropriate when: “(1) the record has been 18 fully developed and further administrative proceedings would serve no useful purpose; (2) 19 the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether 20 claimant testimony or medical opinion; and (3) if the improperly discredited evidence were 21 credited as true, the ALJ would be required to find the claimant disabled on remand.” 22 Garrison, 759 F.3d at 1020. However, “even [if] all conditions of the credit-as-true rule 23 are satisfied,” a court may remand for further proceedings if “an evaluation of the record 24 as a whole creates serious doubt that a claimant is, in fact, disabled.” Id. at 1021. 25 Here, the Court finds the credit-as-true rule is inapplicable because the record is not 26 fully developed. As discussed, further development of the record concerning Plaintiff’s 27 ability to watch Netflix and play video games is needed. Additionally, there is a conflict 28 where Plaintiff alleged that he is incapable of counting money but testified that he is able 1 || to go to the store to buy soda and has no problems interacting with the store employees. (Ud. at 48-50, 245.) Moreover, even if all of the credit-as-true conditions were met, the 3|| Court finds “serious doubt” that Plaintiff is, in fact, disabled in light of Dr. Penney’s notation that, when Plaintiff's father asked Plaintiff to complete a task, Plaintiff responded || “I’m too lazy to do that.” Ud. at 606.) Also, the psychologist who administered Plaintiff’ s || neuropsychological testing noted Plaintiff “may be a good candidate for assistance from the Department of Vocational Rehabilitation to assist him in learning a trade as hands on 8 || learning is favored by [Plaintiff] vs. academic online learning.” (/d. at 482.) He also noted 9|| that Plaintiff taught himself to use the computer (id. at 478), which may further support the || conclusion that Plaintiff is capable of making simple decisions and completing simple tasks. 12 Plaintiff seeks an award of attorneys’ fees under the Equal Access to Justice Act, 28 13 || U.S.C. § 2412(d)(1)(A). The Court instructs Plaintiff to file a motion in conformance with 14]| 28 U.S.C. § 2412(d)(1)(B) if he intends to pursue such an award. 15 IT IS THEREFORE ORDERED reversing the decision of the Commissioner and 16 || remanding for further administrative proceedings consistent with this Order. 17 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment 18 || accordingly and terminate this case. 19 Dated this 10th day of March, 2020. 20 1 3 _ 23 United States District Judge 24 25 26 27 28 -13-