Opinion
No. ED CV 16-618-PLA
03-09-2017
MANDA FAYE WHITE, Plaintiff, v. NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND ORDER
I.
PROCEEDINGS
Plaintiff filed this action on April 6, 2016, seeking review of the Commissioner's denial of her application for Disability Insurance Benefits ("DIB"). The parties filed Consents to proceed before the undersigned Magistrate Judge on April 27, 2016, and April 28, 2016. Pursuant to the Court's Order, the parties filed a Joint Submission (alternatively "JS") on February 13, 2017, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Submission under submission without oral argument.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Berryhill, the current Acting Commissioner of Social Security, is hereby substituted as the defendant herein.
II.
BACKGROUND
Plaintiff was born on April 12, 1960. [Administrative Record ("AR") at 157, 805.] She has past relevant work experience as an administrative assistant. [AR at 805, 866-67.]
On March 31, 2010, plaintiff protectively filed an application for a period of disability and DIB, alleging that she has been unable to work since October 29, 2009. [AR at 11, 157-58, 178.] Plaintiff's application and request for reconsideration were denied, and after a hearing, an unfavorable decision was issued on February 16, 2012. [AR at 11-18.] Plaintiff filed a complaint in this Court in case number ED CV 13-1626-PLA, and on August 21, 2014, the Court remanded the matter for further proceedings. [AR at 904-21.] In its remand order, the Court ordered that on remand the ALJ "consider plaintiff's migraine headache condition to be a 'severe' condition," and reevaluate plaintiff's subjective symptom testimony. [AR at 835; see also AR at 797.] On September 30, 2015, a hearing was held on remand before a different ALJ, at which plaintiff appeared represented by an attorney and testified on her own behalf. [AR at 837-69.] A vocational expert ("VE") and two medical experts ("ME") also testified. [AR at 843-50, 851-61.] On December 11, 2015, the ALJ issued a decision concluding that plaintiff was not under a disability from October 29, 2009, the alleged onset date, through September 30, 2013, the date last insured. [AR at 806.] When the Appeals Council denied plaintiff's request for review on July 8, 2013 [AR at 1-3], the ALJ's decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action followed.
III.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).
"Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (citation and internal quotation marks omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (same). When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citation omitted); see Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.") (citation and internal quotation marks omitted). "Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld." Ryan, 528 F.3d at 1198 (citation and internal quotation marks omitted); see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) ("If the evidence can support either affirming or reversing the ALJ's conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.") (citation omitted).
IV.
THE EVALUATION OF DISABILITY
Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. THE FIVE-STEP EVALUATION PROCESS
The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. Id. The Commissioner then bears the burden of establishing that the claimant is not disabled, because she can perform other substantial gainful work available in the national economy. Id. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity during the period from October 29, 2009, the alleged onset date, through September 30, 2013, her date last insured. [AR at 799.] At step two, through the date last insured, the ALJ concluded that plaintiff had the severe impairments of headaches, high blood pressure, depressive disorder, and anxiety disorder. [Id.] She found plaintiff's alcohol abuse and history of bariatric surgery to be nonsevere impairments. [AR at 800.] At step three, the ALJ determined that plaintiff does not have an impairment or a combination of impairments that meets or medically equals any of the impairments in the Listing. [AR at 800.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC") to perform a full range of work at all exertional levels but with the following nonexertional limitations:
The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through September 30, 2013. [AR at 799.]
RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). "Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted).
[N]oncomplex, routine tasks; no tasks requiring hypervigilence; no interaction with the public; no work hazards such as working at unprotected heights, operating fast or dangerous machinery, or driving commercial vehicles; no ladders, ropes, and scaffolds; and a static work environment (i.e., few changes on a day-to-day basis).[AR at 802.] At step four, based on plaintiff's RFC and the testimony of the VE, the ALJ concluded that through the date last insured plaintiff was unable to perform her past relevant work as an administrative assistant. [AR at 805, 866-68.] At step five, based on plaintiff's RFC, vocational factors, and the VE's testimony, the ALJ found that there are jobs existing in significant numbers in the national economy that plaintiff can perform, including work as an "assembler small products" (Dictionary of Occupational Titles ("DOT") No. 706.684-022), "inspector" (DOT No. 559.687-074), and "marker" (DOT No. 209.587-034). [AR at 806, 867.] Accordingly, the ALJ determined that plaintiff was not disabled at any time from the alleged onset date of October 29, 2009, through September 30, 2013, the date last insured. [AR at 806.]
V.
THE ALJ'S DECISION
Plaintiff contends that the ALJ erred when she: (1) considered the effect of plaintiff's headaches on her ability to work at step five of the sequential evaluation process; and (2) assessed plaintiff's subjective symptom testimony. [JS at 5.] As set forth below, the Court agrees with plaintiff, in part, and remands for further proceedings.
A. THE EFFECT OF PLAINTIFF'S HEADACHES ON THE ALJ'S STEP FIVE ASSESSMENT
Plaintiff contends that the ALJ erred at step five of the sequential evaluation process when she failed to consider the effect of plaintiff's severe impairment of headaches on plaintiff's ability to work. (JS at 5, 7). Specifically, plaintiff notes that the ALJ failed to include any specific reference in her RFC assessment that plaintiff would be incapable of performing work activity during and sometimes immediately following her headaches. [JS at 7 (citing AR at 802).] Instead, plaintiff argues, the ALJ gave "great weight" to the opinions of the non-examining medical expert, Dr. Sabow, who testified at the hearing that plaintiff's migraine headaches "'are not disabling.'" [Id. (citing AR at 804).] Plaintiff argues that in light of the fact that as a severe impairment her headaches by definition "'more than minimally affect her ability to perform basic work activities,'" the ALJ erred when she failed to include any limitations resulting from plaintiff's headaches in the RFC assessment. [JS at 7-8 (citing AR at 799).] Plaintiff further submits that the ALJ "should not be allowed to adopt and attribute great weight to the conclusionary statement made by her own medical expert," Dr. Sabow, that plaintiff's headaches were "not disabling," as this is a conclusion that is reserved for the Commissioner "and cannot form the basis of the ALJ's assessment regarding the limiting effects of [plaintiff's] headaches." [JS at 8.]
Dr. Sabow actually testified that plaintiff's migraine headaches were "at worst, . . . a common migraine . . . [and] probably mixed headaches, in other words, some migraine characteristics and some like cerebral tension characteristics, kind of a combination headache. But this is not the disabling pounding, nausea, vomiting, severe sonophobia where you are laid out and you're out of it." [AR at 848.] He also noted that the symptoms plaintiff described are "very, very common" and "60 to 70 percent of adults at some time in their lives will have headaches of this nature." [Id.]
Defendant responds that "a finding of a severe impairment at step two does not equal a finding that Plaintiff is disabled, nor does it require any corresponding limitations in an individual's RFC." [JS at 9 (citing Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228-29 (9th Cir. 2009) (noting that a finding of a severe impairment does not necessarily warrant any corresponding limitations in an individual's ability to perform basic work activities); see Hoopai v. Astrue, 499 F.3d 1071, 1075-76 (9th Cir. 2006)).] The authorities cited by defendant support this position. However, as discussed below, in this case it appears that the ALJ did not even take plaintiff's migraine headaches into consideration when she determined plaintiff's work-related limitations.
Defendant argues that the ALJ included limitations in her RFC finding that "fully accommodated" plaintiff's headaches, by limiting her "to no work hazards such as working at unprotected heights, operating fast or dangerous machinery, or driving commercial vehicles, and no climbing of ladders, ropes, or scaffolds." [JS at 10 (citing AR at 802).] This argument is not persuasive, however, as the ALJ stated that she imposed these hazard limitations due to the drowsiness and fatigue plaintiff testified she experiences as a result of her migraine medication, not as a result of the migraines themselves. [AR at 805]. "Long-standing principles of administrative law require [this Court] to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ -- not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking." Bray, 554 F.3d at 1225-26 (citation omitted).
Defendant next submits that because plaintiff reported that high blood pressure and extreme stress seemed to be factors that caused her headaches, the ALJ's limitations to "noncomplex, routine tasks, no tasks requiring hypervigilance, no interaction with the public, and a static work environment would reduce stress in the work environment," and thus, apparently, would reduce plaintiff's migraines. [Id. (citing AR at 202, 803).] However, this implicit suggestion that there is a link between these work-related limitations and a likely reduction in plaintiff's migraines is little more than an improper lay opinion. See Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) (noting that the Commissioner "'must not succumb to the temptation to play doctor and make [her] own independent medical findings"). In addition, it is another "post hoc rationalization[]," and not a reason actually stated by the ALJ for including these limitations in plaintiff's RFC. Indeed, the ALJ apparently imposed these limitations based on the testimony of the psychological medical expert, Dr. Glassmire, who found that plaintiff's depressive syndrome and anxiety orders did not meet or medically equal a listing, but that -- based on his review of plaintiff's mental health records [see AR at 855-61 (citations omitted)] -- he would limit plaintiff "to non-complex routine tasks; no tasks requiring hyper vigilance; and no interaction with the public." [AR at 855.] Dr. Glassmire never mentioned plaintiff's migraine headaches when he summarized her mental health records and stated his opinion of plaintiff's limitations based on those records. Neither is there any indication that the ALJ specifically took plaintiff's migraine headaches into account when she adopted Dr. Glassmire's limitations. Bray, 554 F.3d at 1225-26 (citation omitted).
Plaintiff also testified, however, that her migraine headaches do not "necessarily start with blood pressure," and "sometimes . . . they'll just start." [AR at 847.]
Defendant next contends that plaintiff's argument that the ALJ failed to consider her testimony -- that she is sometimes incapable of performing work during and/or immediately following her headaches -- even if true, is not error because those statements are merely the subjective symptom testimony of plaintiff, and the ALJ had no duty to include these statements in plaintiff's RFC. [JS at 11 (citation omitted).] However, as discussed in more detail below, while the ALJ does not have a "duty" to include plaintiff's subjective symptom statements in the RFC determination, the ALJ still must "evaluate the intensity and persistence of [the] individual's symptoms . . . and determine the extent to which [those] symptoms limit . . . her ability to perform work-related activities . . . ." SSR 16-3p, 2016 WL 1119029, at *4 (capitalization omitted). Here, although the ALJ summarized plaintiff's testimony regarding her headaches [AR at 803-04], and acknowledged that plaintiff's migraine headaches "persisted despite treatment," she did not provide any information as to whether, and to what extent, she took plaintiff's migraine headaches into account when determining plaintiff's RFC limitations.
Finally, defendant submits that Dr. Sabow's testimony that plaintiff's headaches were not disabling was a conclusion reserved to the Commissioner, and observes that "Dr. Sabow also testified that Plaintiff's headaches would not cause any limitations, though the record indicated other mental health problems." [JS at 13 (citing AR at 849 ("Q . . . [S]o you don't think there would be any limits caused by the headaches?"; "A No.")); see also supra note 4.] The Court notes, however, that this citation is incomplete as, with regard to possible limitations due to headaches, Dr. Sabow went on to testify that plaintiff "has a lot of other problems and I think there are a host of other problems [in addition to her headaches]. . . . But I think a lot of that, the mental health issues, have to be considered (INAUDIBLE). In this claimant, in that she (INAUDIBLE) with her mental health and some of the neurologic I believe in general make a statement." [AR at 849.] Thus, although somewhat unclear, it appears that Dr. Sabow considered that plaintiff's mental health and neurological problems together have an effect on plaintiff's work-related activities. The ALJ, however, appears to only have considered the mental health limitations imposed by Dr. Glassmire -- who himself considered only plaintiff's mental health issues without taking into account her migraine headaches in formulating his opinion about plaintiff's work-related limitations.
In short, there is no indication that the ALJ considered plaintiff's severe impairment of migraine headaches, along with her mental health issues, in determining the effect of all of plaintiff's severe impairments on her work-related activities. While the Ninth Circuit has concluded that any error at step two is harmless when the ALJ accounts for impairment-related limitations in subsequent steps of the disability evaluation, here there is no indication that although the ALJ determined at step two that plaintiff had the severe impairment of migraine headaches, she properly considered the impact of plaintiff's migraine headaches at later steps. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
Remand is warranted on this issue.
B. SUBJECTIVE SYMPTOM TESTIMONY
Plaintiff contends the ALJ failed to articulate legally sufficient reasons for rejecting plaintiff's subjective symptom testimony. [JS at 14.] Specifically, plaintiff argues that the ALJ failed to cite any clear and convincing reasons "justifying her adverse credibility determination." [Id.]
With respect to plaintiff's testimony, the ALJ stated the following:
I find [plaintiff] not entirely credible regarding the alleged limiting effects of her symptoms. [Plaintiff] has had severe headaches since 1998, yet she continued working until October 29, 2009. [Plaintiff] alleges her migraine headaches
worsened, requiring emergency room visits every couple of months, but the medical records do not support her assertion. [Plaintiff's] blood pressure has been elevated at times, but her amlodipine dosage of 10 mg daily did not change from 2010 to 2015, suggesting her hypertension was generally controlled. As discussed, [plaintiff] was stable on her psychotropic medication regimen. There is also evidence of malingering and noncompliance with medications. [Plaintiff] stopped attending her intensive outpatient program and she did not always take her medications as prescribed. Function reports and testimony reveal [plaintiff] was less motivated, lacked energy, needed reminders, took longer to do activities of daily living, and hired help to do repairs and yard work, but she was still capable of tending to personal care, preparing simple meals, doing household chores, driving, shopping in stores, managing money, and socializing with friends and family. [Plaintiff] testified her migraine medication makes her drowsy and fatigued, but this would not have caused her to be off task. She had been taking Maxalt for many years and would have become tolerant of the side effects. Nevertheless, I have assessed hazard restrictions to account for the side effects. [Plaintiff] did not report side effects from her psychotropic medications.[AR at 804-05.]
"To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis." Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter, 504 F.3d at 1036) (internal quotation marks omitted). If the claimant meets the first test, and the ALJ does not make a "finding of malingering based on affirmative evidence thereof" (Robbins, 466 F.3d at 883), the ALJ must "evaluate the intensity and persistence of [the] individual's symptoms . . . and determine the extent to which [those] symptoms limit . . . her ability to perform work-related activities . . . ." SSR 16-3p, 2016 WL 1119029, at *4. An ALJ must provide specific, clear and convincing reasons for rejecting a claimant's testimony about the severity of her symptoms. Treichler, 775 F.3d at 1102; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003).
On March 28, 2016, after the ALJ's assessment in this case, SSR 16-3p went into effect. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). SSR 16-3p supersedes SSR 96-7p, the previous policy governing the evaluation of subjective symptoms. Id. at *1. SSR 16-3p indicates that "we are eliminating the use of the term 'credibility' from our sub-regulatory policy, as our regulations do not use this term." Id. Moreover, "[i]n doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character[;] [i]nstead, we will more closely follow our regulatory language regarding symptom evaluation." Id. Thus, the adjudicator "will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual's symptoms should not be to determine whether he or she is a truthful person." Id. at *10. The ALJ is instructed to "consider all of the evidence in an individual's record," "to determine how symptoms limit ability to perform work-related activities." Id. at *2. The ALJ's December 11, 2015, decision was issued a few months before March 28, 2016, when SSR 16-3p became effective, and there is no binding precedent interpreting this new ruling including whether it applies retroactively. Compare Ashlock v. Colvin, 2016 WL 3438490, at *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to an ALJ decision issued prior to the effective date), with Lockwood v. Colvin, 2016 WL 2622325, at *3 n.1 (N.D. Ill. May 9, 2016) (applying SSR 16-3p retroactively to a 2013 ALJ decision); see also Smolen, 80 F.3d at 1281 n.1 (9th Cir. 1996) ("We need not decide the issue of retroactivity [as to revised regulations] because the new regulations are consistent with the Commissioner's prior policies and with prior Ninth Circuit case law") (citing Pope v. Shalala, 998 F.2d 473, 483 (7th Cir. 1993) (because regulations were intended to incorporate prior Social Security Administration policy, they should be applied retroactively)). Here, SSR 16-3p on its face states that it is intended only to "clarify" the existing regulations. However, because the ALJ's findings regarding this issue fail to pass muster irrespective of which standard governs, and neither party specifically contends that SSR 16-3p should apply herein, the Court need not resolve the retroactivity issue. Notwithstanding the foregoing, SSR 16-3p shall apply on remand.
Where a claimant has presented evidence of an underlying impairment, and the ALJ did not make a finding of malingering, the ALJ's reasons for rejecting a claimant's credibility must be specific, clear and convincing. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (citing Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015). Where the record contains affirmative evidence of malingering, the ALJ need only provide specific and legitimate reasons for an adverse credibility finding. See Morgan v. Comm'r, 169 F.3d 595, 599 (9th Cir. 1999); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). "General findings [regarding a claimant's credibility] are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Burrell, 775 F.3d at 1138 (quoting Lester, 81 F.3d at 834) (quotation marks omitted). The ALJ's findings "'must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain.'" Brown-Hunter, 806 F.3d at 493 (quoting Bunnell v. Sullivan, 947 F.2d 345-46 (9th Cir. 1991) (en banc)). A "reviewing court should not be forced to speculate as to the grounds for an adjudicator's rejection of a claimant's allegations of disabling pain." Bunnell, 947 F.2d at 346. As such, an "implicit" finding that a plaintiff's testimony is not credible is insufficient. Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (per curiam).
The ALJ here suggested there is "evidence of malingering and noncompliance with medications" [AR at 803-04], yet referred to only one December 13, 2010, medical record that inexplicably reflected malingering as part of an Axis III "Active Problem List." [AR at 1073.] This contrasts with the March 24, 2015, report of the consultative internal medicine examiner who specifically noted that plaintiff "is not malingering." [AR at 1088.]
Because the matter is being remanded for the ALJ to consider the effects, if any, of plaintiff's headaches on her RFC, the ALJ on remand shall also reconsider plaintiff's subjective symptom testimony in accordance with SSR 16-3p.
VI.
REMAND FOR FURTHER PROCEEDINGS
The Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. See Lingenfelter, 504 F.3d at 1041; Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). Where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 593-96.
In this case, there are outstanding issues that must be resolved before a final determination can be made. In an effort to expedite these proceedings and to avoid any confusion or misunderstanding as to what the Court intends, the Court will set forth the scope of the remand proceedings. First, the ALJ on remand shall consider the effect(s) of plaintiff's headaches -- either singly or in combination with her other severe impairments -- on plaintiff's ability to perform work-related activities. Next, after determining whether an affirmative finding of malingering is supported by substantial evidence in the record, the ALJ, in accordance with SSR 16-3p, shall reassess plaintiff's subjective symptom allegations and either credit her testimony as true, or provide legally sufficient reasons, supported by substantial evidence in the case record, for discounting or rejecting any testimony. Finally, the ALJ shall reassess plaintiff's RFC and determine, at step five, with the assistance of a VE if necessary, whether there are jobs existing in significant numbers in the national economy that plaintiff can still perform.
Nothing herein is intended to disrupt the ALJ's step four finding that plaintiff is unable to return to her past relevant work. --------
VII.
CONCLUSION
IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.
This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. DATED: March 9, 2017
/s/_________
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE