ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

Re: ECF Nos. 18 & 19

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

The plaintiff Romika Pahalad seeks judicial review of a final decision by the Commissioner of the Social Security Administration denying her claim for disability benefits under Title II of the Social Security Act ("SSA").1 She moved for summary judgment.2 The Commissioner opposed the motion and filed a cross-motion for summary judgment.3 Under Civil Local Rule 16-5, the matter is submitted for decision by this court without oral argument. All parties consented to magistrate-judge jurisdiction.4 The court grants the plaintiff's motion, denies the Commissioner's motion, and remands for further proceedings consistent with this order.

STATEMENT

1. Procedural History

On October 10, 2013, the plaintiff, then age 46, filed a claim for social-security disability insurance ("SSDI") benefits under Title II of the SSA.5 She alleged the following impairments: a damaged right leg, arthritis in her knee, a back injury, a traumatic-brain injury, depression, chronic severe headaches, fatigue, and insomnia.6 Her alleged onset date originally was October 1, 2012, but was amended to May 3, 2011 at the administrative hearing.7 The Commissioner denied the plaintiff's SSDI claim initially and on reconsideration.8 The plaintiff timely requested a hearing.9

On February 1, 2017, Administrative Law Judge David R. Mazzi (the "ALJ") held a hearing.10 Attorney Harvey P. Sackett represented the plaintiff.11 The ALJ heard testimony from the plaintiff and vocational expert ("VE") Joel M. Greenberg.12 On September 15, 2017, the ALJ issued an unfavorable decision.13 The plaintiff timely appealed the decision to the Appeals Council on November 1, 2017.14 The Appeals Council denied her request for review on July 31, 2018.15 On October 4, 2018, the plaintiff timely filed this action for judicial review and subsequently moved for summary judgment on March 29, 2019.16 The Commissioner opposed the motion and filed a cross-motion for summary judgment on April 26, 2019.17 The plaintiff filed a reply on May 10, 2019.18

2. Summary of the Administrative Record

2.1 Mission Peak Orthopaedics (Knee Surgery) — Treating

The plaintiff received treatment for her right knee at Mission Peak Orthopaedics ("Mission Peak") from February 2011 to August 2011.19

On February 17, 2011, Ashay Kale M.D., evaluated the plaintiff for chronic pain in her right knee.20 She could not remember a recent specific injury to her knee, but the pain was so severe that she had to go the emergency room.21 Dr. Kale found the following in an examination:

X-rays showed "moderate narrowing of the medial joint space and patellofemoral joint space."23 Dr. Kale found that the plaintiff had "moderate osteoarthritis of [the] right knee with probable degenerative meniscal tears."24 She counseled the plaintiff "as to the importance of weight loss to unload the joint including the knee joints" and recommended that plaintiff receive a corticosteroid injection and an MRI scan to evaluate the menisci and the articular cartilage.25 She gave the plaintiff the injection on that date.26

On May 3, 2011, the plaintiff, following the corticosteroid injection in her knee, reported pain in her right knee and said that the injection only temporarily relieved her symptoms and she had to go the ER several times because of the pain.27 Dr. Kale found that the plaintiff had signs of a torn meniscus and chronic chondromalacia of the patella.28 Dr. Kale also noted that there were arthritic changes in the knee.29 The plaintiff had arthroscopy on May 11, 2011 to repair a torn meniscus and chondromalacia patella in her right knee.30

The plaintiff had a follow-up visit nine days after surgery with physician's assistant ("PA") Aklil Rostai.31 He noted that the plaintiff's incisions were healing well and discussed the importance of physical therapy and home exercise.32 He prescribed her 40 Norco pills because her previous medication, MS Contin, upset her stomach.33 By June 6, 2011, the incisions had healed, and the plaintiff had "excellent active and passive ranges of motion."34 There was "still mild-to moderate tenderness over the medial and lateral joint line, but this [was] much improved compared to prior to surgery," according to Dr. Kale.35

On June 29, 2011, a supplemental report said that the plaintiff's meniscus tear and joint damage occurred on March 17, 2011, when she twisted her right knee while walking on a wet floor.36 The report attributed twenty percent of the plaintiff's pre-surgery symptoms to patellofemoral joint-degenerative joint disease and eighty percent "due to lateral meniscus tear and exacerbation of patellofemoral pain after her fall."37 Findings at the time of the arthroscopy were "a complex tear of the lateral meniscus and significant chondromalacia and degenerative changes in the patellofemoral joint."38 The surgery was successful, the plaintiff's symptoms had improved significantly, and she had "full active and passive range of motion" in her right knee.39 There was "mild discomfort over the lateral joint line and some mild anterior crepitus with range of motion of the patella."40 Dr. Kale told the plaintiff that she should continue physical therapy and could be prescribed pain medications only for six weeks to two months more.41 After that, she would be referred to a pain management specialist.42

On August 4, 2011, Dr. Kale noted that the plaintiff's knee had some residual swelling but a normal range of motion.43 Her incisions were healed, and her distal neurovascular status was intact.44 She had "patellofemoral arthrosis," which she had to address "if she desire[d] to have a pain free knee."45 Dr. Kale referred "her to pain management consisting of evaluation by Dr. Schuchard" and noted that the plaintiff would follow up with her on "an as needed basis."46

2.2 St. Rose Hospital (Physical Therapy) — Treating

From June 2011 to October 2011, the plaintiff had physical therapy at St. Rose Hospital following the arthroscopy.47

On June 22, 2011, physical therapist ("PT") Shannon McGann "trained [the plaintiff for] use and self-application of ace wrap for edema."48 PT McGann's treatment plan was to "assess [the] efficacy of ace wrap and self [massage]" and to obtain an order for a knee brace.49 The plaintiff filled out a "Patient Information Record" form.50 She rated her pain (from lowest to highest) as a three to eight on a scale of one to ten.51 On an "Activities of Daily Living Assessment," she reported being "unable" to reach her bra strap, put on pants or shorts, reach her back pocket, clean, wash dishes, do laundry, get out of bed, carry, push or pull five to 100 pounds, do yardwork, or do other recreational activities.52 With "great difficulty," she could put on a shirt or jacket, cook, grocery shop, walk on level and uneven surfaces, walk up and down stairs, walk over curbs and up ramps, get out of the shower or tub, get out of the car, sit for 30 minutes, stand for 40 minutes, bend, lift or reach below her waist, and bend, lift or reach above shoulder level.53 She reported "moderate difficulty" brushing her hair, brushing her teeth, shaving, bathing, driving, and bending, lifting or reaching overhead.54 She had "some difficulty" typing on a keyboard.55

On June 23, 2011, the plaintiff had an appointment with PT David Cattanach.56 Her pain level was a seven out of ten, and her knee was tender to palpation.57 His instructions were "the gym at home: functional walking."58 On July 1, 2011, the plaintiff saw PT Gary Tom, who noted that she had improved from her last visit.59 She was "unable to recall why [her] knee was so painful" on the last visit.60 Her pain level was still seven out of ten.61

On July 6, 2011, PT McGann noted that the plaintiff could stand and walk following the arthroscopy and could perform "light house cleaning."62 Her "initial transition [from] sit [to] stand [and the] first steps to follow [were] generally difficult."63 According to PT McGann, "good relief [was] achieved," and "[the] plaintiff would benefit from a stable wrap around knee brace to prevent medical rotation [ ] while relieving patellar compression."64

On July 8, 2011, PT McGann had the plaintiff do "gait training on [a] treadmill."65 She applied tape to the plaintiff's tibia to "support patellar decompression."66 She gave the plaintiff "written instructions for [removing the tape]" and "cautioned [the plaintiff] to limit walking on the treadmill for 10 minutes."67

On August 2, 2011, the plaintiff had a pain level of five out of ten.68 She was "walking 10-20 [minutes and] completing [her] exercises daily."69 The edema "throughout [the plaintiff's] joint [was] mild compared to [the] last appointment."70 The emphasis of the physical therapy was "to release adhesions and begin patellar retraining," but edema limited the plaintiff's tolerance to physical therapy.71 Her treatment plan was "functional activity training, [a] home exercise program, manual therapy, taping, therapeutic exercise and injury prevention technology."72

On October 25, 2011, PT McGann terminated the plaintiff's physical-therapy services because the plaintiff did not return for her scheduled appointment.73 In her report, PT McGann noted that the plaintiff had increased her range of motion, increased her muscle performance, increased her functional status for home, recreation, and community, decreased her pain, improved her joint alignment and stability, improved her ability to self-manage symptoms, and reduced her risk of reinjury.74

2.3 Bhupinder N. Bhandari, M.D. — Treating

Bhupinder N. Bhandari, M.D., at Mission Primary Care Group, treated the plaintiff from May 5, 2011 to January 15, 2014.75

On November 29, 2011, PA Muhammad Khan and Dr. Bhandari noted that the plaintiff's existing problems were "menopause, depression, hypertension, GERD, obesity and hyperlipidemia."76 The plaintiff said that she felt sad and gloomy "more often than not[,]" had blurry vision, insomnia, and tinnitus and occasionally lost her hearing.77 Her treatment plan was a low-salt diet, exercise to lose weight, and a prescription of Lexapro.78

On February 2, 2012, the plaintiff complained that her legs and feet were swollen.79 On February 15, 2012, she said that "if she skips the Norco she feels restless [and has] hand tremors."80 Dr. Bhandari noted that the plaintiff's behavior showed the potential for drug abuse.81 He prescribed her 90 Norco pills and 30 Ambien pills.82 On February 28, 2012, the plaintiff told Dr. Bhandari that "her prescription was stolen in a car theft."83 His note said that she was "on medications that cause[d] her to be forgetful[,]" namely, Norco, Ambien, Diclofenae, and Phenegan.84

On August 16, 2012, the plaintiff reported feeling depressed to PA Khan and wanted extra medication for her leg pain.85 PA Khan prescribed her Paxil.86 On August 23, 2012, she complained of knee pain and was prescribed Norco.87 On August 30, 2012, she asked for an early refill of her medications because "by mistake she threw all her meds in [the] garbage."88 PA Khan noted that her "existing problems [were] insomnia, knee pain and depression."89 He prescribed her Ambien and recommended weight management, diet and exercise.90 On November 15, 2012, PA Khan noted that the plaintiff suffered from headaches and depression.91

On February 20, 2013, the plaintiff said she had pain in her right knee, and asked PA Khan for an early refill of her prescription for a trip to Canada.92 PA Khan prescribed her 120 Norco pills and 60 famotidine pills.93 On May 1, 2013, the plaintiff said that she was "sad and gloomy" and wanted to "start taking Zoloft for her depression."94 He prescribed her Zoloft, Ambien and Norco.95 She told Dr. Bhandari on June 20, 2013 that she felt "depressed, sad and gloomy most of the time, [and endured] stomach aches for two days, [with] stabbing pain."96 He prescribed her Norco, Paxil, and omeprazole.97On July 11, 2013, the plaintiff reported to PA Khan that she fell and injured her head and leg.98 Her existing problems were "LBP [and] obesity."99 He "referred her to [the] ER for [a] checkup" and prescribed her Vicodin and ibuprofen.100

On September 18, 2013, X-rays of the plaintiff's legs revealed the following: "[her] tarsal bones show[ed] normal alignment and signal intensity pattern;" "[her] tendoachilles show[ed] normal intensity pattern[, n]o obvious tear seen;" she had "small superior and inferior calcaneal spurs;" the "muscle groups around [her] ankle [were] normal;" and "[n]o obvious mass lesion seen."101 Her major tendons and neurovascular bundle were normal.102 Impressions of the X-rays also included "[a] mild chronic sprain of deltoid and posterior talofibular ligament" and "DJD with fluid accumulation at talonavicular joint."103

On September 12, 2013, the plaintiff told PA Khan that she fell from a second floor.104 She reported that her leg was swollen and her back and head hurt.105 On December 9, 2013 she had radiating leg pain, heartburn, and headaches.106 PA Khan noted that her existing problems were "LBP, OA [and] insomnia."107 He prescribed Norco and Ambien.108 On December 23, 2013, the plaintiff told PA Khan that she needed a refill of her pain medication because "her apartment caught on fire and all her stuff, including her pain medications [burned]."109 Her existing problems were trauma in her right knee, hyperlipidemia, and obesity.110 He prescribed her Ambien and tramadol.111 On January 2, 2014, the plaintiff had the flu and wanted a glucose test.112

2.4 St Rose Hospital (Emergency Department) — Treating

The plaintiff visited the emergency department at St. Rose multiple times from March 2012 to October 2013.113

On March 13, 2012, Dimpi Kalira, M.D., treated the plaintiff.114 She had pain and tenderness in her right knee.115 Her condition was "exacerbated by movement . . . [and] walking" and was "relieved by prescription medications, Norco-Vicodin."116 During the visit, the plaintiff was "oriented to person, place and time."117 The plaintiff said that she was "active and exercising routinely[,]" denied an "inability to bear weight or ambulate," and said that she was planning a trip to Canada to get a knee replacement.118 On examination, her right knee had "no swelling," a normal range of motion, and "[d]iffuse, non-localized mild tenderness."119 The plaintiff's pain was "level [nine], using numeric pain scoring."120 Dr. Kalira's diagnosis was "arthralgia" in the right knee.121 She prescribed Norco and Vicodin and discharged the plaintiff.122

On June 25, 2012, the plaintiff told Tony H. Yuan, M.D., that she was running out of pain medication.123 Dr. Yuan found that she was ambulatory, had a steady gait, and was "oriented to person place and time."124 She had a history of musculoskeletal disorder, sciatica, and osteoarthritis in her left hip and right knee.125 Her range of motion and motor strength in her lower extremities was "normal."126 He diagnosed her with sciatica and leg pain and prescribed 20 Norco pills.127

On November 23, 2012, Jeremy Graff, M.D., treated the plaintiff in the emergency department.128 The plaintiff fell between 4:00 p.m. and 5:00 p.m. that afternoon and had pain in her right knee radiating down her leg.129 She reported "chronic arthritis and arthralgias in [her] right knee and hip."130 She told Dr. Graff that she ran out of medication and that her primary-care doctor told her to get her prescriptions filled in the emergency room.131 She rated her pain as a ten out of ten.132 Dr. Graff's diagnosis was osteoarthritis.133 He noted that there were "[n]o red flags" and refilled her prescription for Norco.134

On May 27, 2013, the plaintiff presented for a refill of her pain medication.135 She had dull, throbbing pain in her knee, and her symptoms were "severe."136 Her condition was exacerbated by movement and walking and was relieved by prescription medications.137 Dr. Graff's diagnosed her with joint pain.138 He noted that a hospital report showed "multiple MDs rx opiates."139 He "confronted [the plaintiff] and [she] underst[ood] no more pain meds from the emergency department."140 He prescribed her 12 tablets of Norco.141

On July 7, 2013, the plaintiff entered the emergency department with "shooting" pain in her back and right leg after "falling off" two steps of stairs the previous day.142 David A. Wei, M.D., treated her.143 She reported a pain level of "9/10" and said that she had run out of Norco three days before and her primary-care physician was out of town.144 An examination of her back "included findings of [a] normal inspection[.]"145 She had a "normal range of motion, despite some tenderness."146 She had a normal range of motion in her lower extremities.147 She "tolerated the [procedure] well."148 Dr. Wei diagnosed her with a "back pain injury" and recommended back exercises.149 She was administered Norco (hydrocodone Bit/Acetaminophen) and given a prescription for 20 "10mg-325mg" tablets.150

On July 11, 2013, the plaintiff reported that she "was walking [on] the patio, [the] patio broke and her foot got caught between the wood[,]" and she "pass[ed] out for [an] unknown amount of time."151 She reported low-back pain and head pain.152 At the emergency department, she was ambulatory.153 She rated her pain as a ten out of ten and said that she "put on braces to her legs to deal with the pain."154 Dr. Graff found that her back and right leg were "tender to palpation" but that she had a full range of motion.155 Her X-rays were "normal."156 They revealed no acute findings: the plaintiff had degenerative change and osteophytes in her right knee, a mild degenerative disc in her L3-L4 vertebrae, and no fracture or dislocation in her ankle.157 Dr. Graff diagnosed the plaintiff with a back strain and a knee contusion.158 He prescribed 12 tablets of Norco and noted that the plaintiff received 20 tablets of Norco at the emergency department "just this weekend."159

Armando Samaniego, M.D., examined the plaintiff on August 1, 2013.160 The plaintiff reported pain in her right knee at a level of "8/10."161 Her condition was exacerbated by walking.162 She requested a refill of her pain medication because her primary-care physician was out of town.163 She was "unable to take ibuprofen because [it] cause[d] [her] stomach [to be] upset," but Norco did not have those side effects.164 He diagnosed her with knee pain and a knee contusion and dispensed one Norco pill.165

On August 26, 2013, the plaintiff went to the emergency department after she fell through a "patched hole" on the second floor of her apartment complex.166 She reported dull pain at a level 10 radiating from her right hip to right foot that was relieved by "nothing."167 She was "running out of [ ] pain medication."168 A nursing assessment noted that she arrived ambulatory with a steady gait and appeared in distress due to pain.169 An inspection of her right lower extremity resulted in findings of numbness and signs of infection.170 Edris Afzali, M.D., diagnosed her with joint pain in her ankle and foot.171 He prescribed 12 tablets of Norco.172 The plaintiff refused to wait to get fitted for a postop-shoe and left the emergency department.173

On October 2, 2013, the plaintiff went to the emergency department using a crutch and complained of pain and swelling in her right leg.174 She told Tan Nguyen, M.D., that she "was sent [t]here by Dr. Cheung to get a long leg brace for her right leg that was injured in a fall from the balcony of her apartment complex on July 11, 2013."175 Dr. Nguyen found that both the plaintiff's "knee and ankle [had] good ROM[,]" with mild swelling in her right ankle.176 Dr. Nguyen called Dr. Cheung, who "said he did not tell the patient to come to [the] ER for [a] long leg splint" and that "she might have [had,] at most an ankle sprain, which would not need a long leg splint."177 Dr. Nguyen recommended an X-ray of the plaintiff's ankle, tibia and fibula.178 The plaintiff agreed but left immediately against medical advice.179

2.5 Norman Cheung, M.D. — Treating

The plaintiff saw Norman Cheung, M.D., an orthopedist, from April 16, 2012 to December 1, 2014 for pain in her lower extremities.180 Dr. Bhandari referred the plaintiff to Dr. Cheung.181 Dr. Cheung treated the plaintiff, among other things, by injecting corticosteroid into the plaintiff's knees.182

On April 16, 2012, Dr. Cheung ordered an MRI.183 On August 10, 2012 and October 2, 2012, he recommended that the plaintiff get X-rays.184

On August 19, 2014, the plaintiff, who received a cortisone injection in May, reported to Dr. Cheung that the pain in her knees was returning.185 On examination, the plaintiff's gait was normal, and her right knee had a "full range of motion with pain," "no instability," and mild tenderness from palpation on the medial jointline, lateral jointline and peripatellar.186 Her right ankle had no ecchymosis or redness, "minimal to mild swelling[,]" and "mild tenderness to palpation [of the] lateral ligaments."187 Dr. Cheung diagnosed her with a "sprain and strain of [the] tibiofibular (ligament) [and] primary localized osteoarthritis, lower leg."188 He administered a cortisone injection in her right knee and gave her an ankle brace.189 The plaintiff asked for a refill of her Norco prescription, but Dr. Cheung said she could not receive narcotics from two medical providers and noted that the CURES report showed that Dr. Rowley prescribed her 120 tablets of Norco on July 31, 2014.190 He scheduled a follow-up appointment in six weeks.191

On September 24, 2014, the plaintiff reported that her right knee felt better after an injection in August, but her right ankle hurt and she wanted surgery.192 Dr. Cheung found that the plaintiff's knees were "stable," she was walking "without an assisted device," and she had "pain on palpation diffusely."193 He diagnosed her with "primary localized osteoarthritis."194 He administered a cortisone injection in her left knee and recommended podiatry.195 He reviewed her medications with her, "taking Norco 5-325 MG Tablet[,] 1 tablet as needed every 8 hrs."196

On December 1, 2014, the plaintiff complained of pain in her left knee.197 He diagnosed her with primary localized arthritis in her left leg.198 Dr. Cheung said he could not give her another cortisone injection because it was too soon after the September 24 injections.199 Her records reflected the same Norco prescriptions.200

2.6 Hayward Family Care — Treating

The plaintiff was treated at Hayward Family Care from May 2014 to November 2016.201

On May 6, 2014, PA Linda Deivert reported that the plaintiff "was on a second story patio which collapsed in [July 2013 and] injured her right shoulder, knees, and back."202 The plaintiff had "severe pain since the accident."203 She took "Norco 325 10-mg dose 4 times per day, tramadol and medication for sleeping."204 PA Deivert diagnosed the plaintiff with a backache, and noted she would "continue care with Drs. Cheung and Hua" and continue Norco and tramadol.205 On June 5, 2014, the plaintiff followed up with PA Deivert about back pain from her fall from her second story patio.206 The plaintiff "[h]ad an MRI which was abnormal" and "Dr. Hua [had] recommended surgery, possibly a laminectomy."207 PA Deivert referred her to a neurosurgeon "for a second opinion concerning lumbar surgery" and told her to continue Norco, zolpidem, and tramadol.208

On June 23, 2014, the plaintiff saw Robert Rowley, M.D..209 The plaintiff was "using hydrocodone regularly [ ] for pain from [a] fall, including headaches, sensation of blurred vision and eyes hurting, and right-sided pain."210 She used a cane for assistance.211 She complained of depression.212 "A neurosurgeon [was] planning on doing interventions on [her] L-spine and C-spine."213 Dr. Rowley "[d]iscussed risks of worsening of dependence and addiction with continued use of Norco as a monotherapy."214 He diagnosed the plaintiff with major-depressive disorder in a single episode and a backache and prescribed naproxen for inflammation and sertraline hydrochloride for depression.215

On July 16, 2014, the plaintiff saw Raul Gentini, M.D., after cutting her finger on a blender.216 She had a small one-centimeter laceration on her right fingertip.217 She had "no pain in [her] muscles or joints, no limitation of range of motion[, and] no paresthesia or numbness."218 She asked for Norco for "pain control."219 Dr. Gentini noted that she had a prescription on July 3, and the plaintiff said that she had not picked it up yet.220 He diagnosed the plaintiff with "Laceration of finger, Major depressive disorder, single episode [to a] severe degree, [and a] Backache."221 He prescribed Keflex.222

On July 31, 2014, the plaintiff had swelling and pain in her lower extremities and also complained of heartburn and nausea.223 PA Deivert diagnosed the plaintiff with "Insomnia, [a] Headache, Reflux Esophagitis [and] Lumbosacral radiculitis."224 The plaintiff was told to continue Norco and zolpidem and to start verapamil and omeprazole.225

On September 3, 2014, the plaintiff asked for a refill of Norco from Dr. Gentini because she forgot her prescription in Oregon.226 She said she had scheduled back surgery that month.227 Dr. Gentini did not prescribe Norco "this visit" (noting that her prescription was not due until September 19) and recommended the plaintiff begin taking Naproxen for pain.228 He diagnosed her with a "Backache, [ ] Insomnia, [ ] Major depressive disorder, single episode, severe degree, without mention of psychotic behavior [and] Lumbosacral radiculitis."229

On September 5, 2014, the plaintiff asked for a refill of Norco for her back and leg pain because she forgot her pills in Oregon.230 PA Deivert declined to refill the prescription and diagnosed her with "Lumbosacral radiculitis."231

On October 3, 2014, the plaintiff asked to see a podiatrist because she had "right ankle pain and numbness of the distal extremity and foot."232 She used a cane to walk.233 The plaintiff had "tenderness with palpation of [her] right lateral maleolus."234 PA Deivert diagnosed the plaintiff with ankle-joint pain.235 She told the plaintiff that her "lower extremity, ankle, and foot symptoms are probably related to the chronic back pain" and referred her to Dr. Ternus.236

On October 10, 2014, the plaintiff requested Norco, tramadol, and zolpidem prescriptions because she was planning a trip to Canada.237 There was tenderness in the plaintiff's right ankle, and she used a cane while walking.238 Dr. Gentini diagnosed her with "Combined opioid with other drug dependence [and a] Backache unspecified."239 He told her to continue tramadol and gave her 120 Norco pills.240

On October 24, 2014, the plaintiff reported pain in her back and both lower extremities.241 She said that Sherwin Hua, M.D., had recommended surgery, but she was seeking a second opinion.242 PA Deivert diagnosed the plaintiff with "Back and lower extremity pain post-fall, Insomnia, Lumbosacral radiculitis, [and] Combined opioid with other drug dependence."243 She prescribed gabapentin and told the plaintiff to continue zolpidem and Norco.244

On October 24, 2014 the plaintiff said that "Dr. Hua, the neurosurgeon, was going to be on vacation for one month."245 The plaintiff "[c]ontacted [Hayward Family Care] on 10-30 stating that [she] brought in all her pain medication to Dr. Tse, the pain medication specialist, but had lost the medication in [Dr. Tse's] office."246 PA Deivert contacted both doctors and determined that Dr. Hua was not on vacation and was not going on vacation, and the plaintiff had not been to Dr. Tse's office.247

On November 4, 2014, the plaintiff saw PA Deivert to discuss the use of pain medication.248 She "discussed with the [plaintiff] at length if [she] was having increased pain or was taking medication for other reasons but [the plaintiff] did not reply."249 PA Deivert told the plaintiff to continue naproxen and gabapentin and noted that she would check with the pharmacy about when the plaintiff's prescription for Norco was to be refilled.250 She also gave the plaintiff a "lab order for fasting comprehensive metabolic panel, CBC, TSH, and a lipid panel."251

On November 20, 2014, the plaintiff arrived wearing a brace and using a cane, reported increased pain in her left knee, and asked to see an orthopedist.252 Her shoulders and hips had no tenderness and good ranges of motion.253 There was "no crepitus, tenderness or erythema" in her knees, but there was "pain on palpation" in the left knee.254 Both ankles were normal and had a good range of motion.255 PA Deivert "referred [her to] an orthopedist at Mission Peak" and told her to continue Norco and zolpidem.256

On December 3, 2014, the plaintiff complained of back pain and asked for a refill of Norco.257 The plaintiff's lower back had "no spasms or bony abnormalities[, a] decreased [range of motion] and SI joint tenderness."258 Dr. Gentini diagnosed her with "Low back pain [and] Opioid dependence" and prescribed her 10 Norco pills.259 She returned two days later for "severe back pain."260 PA Deivert's diagnosis was "Low back pain [and] Opioid dependence."261 She instructed the plaintiff to continue Norco and gabapentin.262

On January 30, 2015, the plaintiff said she had decided to forgo surgery and that she had "chronic back pain with radiation to the lower extremities."263 The plaintiff had scheduled an epidural with Dr. Co Banh and had begun taking fluoxetine, which made her feel better.264 PA Deivert diagnosed her with "Low back pain with radiation[,] Opioid dependence, [and] Depressive disorder-Improved."265 PA Deivert recommended she continue Norco and fluoxetine and see a therapist.266

On March 4, 2015, the plaintiff said she had fallen "from the third stair of [a] stairway."267 She complained of "trauma on her lower back and leg [ ] and [a] lack of energy."268 Dr. Gentini diagnosed her with "Low back pain," instructed her to "stay active and return to normal activities, limit bed rest," and suggested "heat wrap therapy combined with short session ice therapy."269 He prescribed 30 tablets of baclofen.270

On December 7, 2015, the plaintiff told PA Deivert that while she "was supposed to be working at the front desk of a hotel but instead was cleaning the bathrooms and doing laundry," "[a] cart flipped while she was pushing it," and she had "chronic back and knee pain after a fall."271 She quit her job two weeks earlier but wanted "to try again without restrictions."272 She had "an appointment with Dr. Molina for knee injections."273 There was "tenderness and pain on palpation" in both knees and "tenderness on palpation" of her spine.274 PA Deivert's diagnosis was "Low back pain [and] Knee pain[.]" PA Deivert gave the plaintiff a note saying the plaintiff could return to work and said that she would follow up during the week "to determine if [the plaintiff] had returned to work, filled out disability forms and had a return to work date."275 She prescribed the plaintiff hydrocodone-acetaminophen and amoxicillin.276

On February 11, 2016, the plaintiff asked PA Deivert for a disability note, stating "the last day she was able to work."277 The plaintiff was "wearing bilateral knee braces."278 She said that she was injured at work and had "chronic back and knee pain after a fall from a second story balcony."279 "Mainly [she] was having knee pain."280 The injections she received from Dr. Molina "[had] not been not helpful."281 PA Deivert diagnosed the plaintiff with "Fatigue, Knee pain [and] Low back pain" and issued a note that said the plaintiff "was unable to work beginning on 11-14-15."282 She directed the plaintiff to "continue [her] care with Dr. Molina" and to continue hydrocodone-acetaminophen.283

On April 5, 2016, the plaintiff came to an appointment wearing dual knee braces and reported that her ankle had been painful and swollen since November 14, 2016, when a laundry cart fell on it.284 PA Deivert diagnosed the plaintiff with ankle and knee pain, told her to continue hydrocodone-acetaminophen, and referred her for X-rays.285

On April 26, 2016, the plaintiff asked for a refill of her prescription for hydrocodone-acetaminophen because she was going to Canada to see her chronically ill sister.286 She reported that she had an appointment with Dr. Cheung in May.287 PA Deivert diagnosed the plaintiff with "Knee pain, Low back pain, Opioid dependence [and] Insomnia" and advised her that she "could not give her a refill of hydrocodone-acetaminophen at [that] time."288

On May 31, 2016, the plaintiff asked for a refill of her hydrocodone-acetaminophen and gabapentin prescriptions.289 She "stated that [she] had a scheduled appointment with Dr. [Cheung] in May . . . [but] his office never contacted her."290 She was also fired from her job at the Holiday Inn.291 She had "hired a lawyer and [would] be filing a [w]orkers' compensation claim."292 PA Deivert diagnosed the plaintiff with "Knee pain, Low back pain, Dental caries, Opioid dependence, Hyperglycemia [and] Hazy vision" and told her to see "Dr. Cheung as soon as possible."293 She directed the plaintiff to continue hydrocodone-acetaminophen and gabapentin and to start amoxicillin.294

On June 22, 2016, the plaintiff asked for an early refill of pain medication from Dr. Gentini because she had forgot her medication in Canada the week before.295 Dr. Gentini evaluated the plaintiff's psychiatric state as "active and alert," "good judgment," oriented "to time, place and person," and normal recent and remote memory.296 He diagnosed her with "Knee pain and Vitamin deficiency" and told her to continue hydrocodone-acetaminophen and amoxicillin.297

On August 26, 2016, the plaintiff said that she had begun seeing Darien Behravan, D.O., at Bay Area Pain and Spine Institute for shoulder and ankle pain resulting from a work-related incident.298 She was wearing bilateral knee braces and using a cane.299 PA Deivert gave her a "lab order for a fasting comprehensive metabolic panel, CBC, TSH, hemoglobin A1c, and a lipid panel."300 She advised the plaintiff to continue hydrocodone-acetaminophen and temazepam, and to schedule "an appointment with Dr. Behravan specifically for chronic back and knee pain."301

On September 20, 2016, PA Deivert asked the plaintiff why she had not discussed her back and knee injuries with Dr. Behravan.302 "The [plaintiff] stated that Dr. Behravan did not accept her insurance."303 PA Deivert diagnosed her with knee and back pain, and insomnia.304 She prescribed the plaintiff 30 tablets of temazepam for insomnia, 180 tablets of hydrocodone-acetaminophen for her low back and knee pain, and 60 capsules of gabapentin.305

On October 12, 2016, the plaintiff asked PA Aryn Earnhardt for a replacement prescription of Norco because her pharmacy was only able to fill half her prescription because it ran out of Norco.306 Her pain from chronic sciatica and her fall in 2013 were terrible.307 Her back was "killing her."308 The plaintiff was ambulating normally, had "no contractures, malalignment, tenderness or bony abnormalities and [had] normal movement of all extremities."309 PA Earnhardt called the pharmacy and was told that the plaintiff had been prescribed the full 180 tablets on her refill date, September 21, 2016, and that the pharmacy "had problems with [the plaintiff] in [the] past with going to different pharmacies and different providers."310 PA Earnhart diagnosed the plaintiff with "Chronic pain [and] Opioid dependence" and told her that no additional prescriptions would be prescribed that day.311

On November 8, 2016, PA Deivert and the plaintiff discussed the provider's policy on controlled medications and the "qualities of addiction," and she offered to contact the plaintiff's insurance "concerning [a] program for opioid addiction."312

2.7 Mission Peak Orthopaedics (Spine-and-Knee Injections) — Treating

The plaintiff had treatment for her spine and knees at Mission Peak from November 2014 to June 2016.313 For her spine, she had a single round of bilateral-transforaminal-epidural steroid injections administered by Co Bahn, M.D., on December 12, 2014, and she was prescribed various medications.314 She had a series of bilateral-cortisone injections administered to her legs by Ricardo Molina, M.D., from December 2014 to June 2016.315 The next paragraphs provide more detail about this treatment.

In an initial consultation on November 18, 2014, with PA Victoria Tung, the plaintiff described her fall from her patio and the pain she experienced.316 The pain was "sharp, burning [ ] and constant," and she had "numbness and weakness in her lower extremities."317 On examination, there was "moderate tenderness to palpation of the lumbar spine[,]" "moderate pain on palpation of the bilateral lumbar paraspinal and bilateral gluteus musculature, left greater than right[,]" a "mild restriction of range of motion for all planes," the plaintiff's "straight leg raise [was] positive bilaterally," and her strength in her lower extremities was "4/5 on right dorsiflexion."318 She could not "stand on [her] heels and toes due to pain in the lower extremities."319 An MRI take of the plaintiff's lumbar spine on May 13, 2014 showed the following:

The plaintiff elected "to proceed with bilateral L5-S1 transforaminal epidural steroid injections."321 No medications were prescribed but she could "continue with Norco 10/325 [ ] and tramadol 50 mg [ ] as needed."322 Dr. Banh administered the injections on December 12, 2014.323

On December 2, 2014, Dr. Molina had an initial consultation with the plaintiff for knee pain.324 The plaintiff recounted her history (falling through a balcony floor and having knee surgery on May 11, 2011) and said she had "difficulty walking or standing for more than twenty minutes at time."325 Her medications were "Norco, gabapentin and tramadol."326 Both knees were stable to varus and valgus stress, and she had a full range of motion.327 There was "medial joint line tenderness[,] left great than right" in her lower-extremities and they were "[n]eurovascularly intact distally."328 Dr. Molina concluded from bilateral X-rays that the plaintiff had "mild-to-moderate osteoarthritis" and "joint space narrowing" in both knees.329 He recommended "bilateral knee cortisone injections" based on his "moderate degenerative findings" and administered the injections that day, noting that he would "see her back in 3 to 4 months."330

On January 7, 2015, the plaintiff saw PA Tung for a follow-up visit after receiving the injections on December 12, 2014.331 The injections gave her "50-60% relief of her . . . lower extremity pain," and she had been able to decrease her use of Norco and tramadol.332 The plaintiff said she took gabapentin with "no relief, and she had chest pressure and heart palpitations[.]"333 Her bilateral lower extremity pain [ ] improved and she "no longer ha[d] lower extremity weakness or urinary incontinence."334 An examination of her lumbar spine found:

The plaintiff was to return in one month for another evaluation.336

On February 13, 2015, in a follow-up visit, with PA Tung, the plaintiff reported falling backwards down a flight of stairs after a spell of dizziness.337 "Her pain began to return to a moderate level (4-6/10) around the end of January 2015."338 She had "severe difficulty standing."339 PA Tung's findings from her examination were:

X-rays of her lumbar spine "show[ed] slight anterolisthesis of L5 on S1[,]" "[d]egenerative changes [ ] throughout the lumbar spine[,]" and disc space narrowing at the L5-S1 disc space.341 PA Tung recommended physical therapy and gait-training to strengthen the plaintiff's lower-bilateral extremities.342 She prescribed the plaintiff 50 mg of tramadol, 120 tables of Norco, a Medrol Pak, and 25 tablets of cyclobenzaprine for lumbar strain and muscle tightness.343

On March 10, 2015, Dr. Molina found that the plaintiff's knees were stable to varus and valgus stress, and she had a full range of motion in her lower extremities without crepitus.344 Dr. Molina administered another round of bilateral-steroid injections in the plaintiff's knees on the same day.345

On March 12, 2015, the plaintiff told PA Tung that her "her bilateral lower extremity pain extend[ed] down to her ankle, and [was] more severe on the right."346 There was severe restriction in range-of-motion in all planes, as well as inability for lumbar extension.347 There was severe pain in her lumbar spine on flexion, extension, and palpation.348 PA Tung recommended physical therapy and a second round of epidurals, but the plaintiff declined the injections.349 PA Tung prescribed her 50 mg of tramadol, 180 Norco pills, a Medrol Pak, 25 cyclobenzaprine pills, and 30 amitriptyline pills for sleep.350

On April 9, 2015, the plaintiff had a follow-up visit with PA Tung.351 Her bilateral extremity pain at the time was "9-10/10 with no alleviating factors [and m]uscle spasms in her back [were] affecting her sleep."352 PA Tung found a severe restriction in the range of motion in her back and strength throughout her bilateral extremities.353 The plaintiff chose to not receive epidurals.354 PA Tung strongly advised the plaintiff to begin physical therapy and prescribed her 50 mg of tramadol, 180 Norco pills, a Medrol Pak, 25 cyclobenzaprine pills for muscle spasms, and 30 amitriptyline pills.355

On May 21, 2015, the plaintiff reported to Dr. Molina that she had acute knee pain.356 The plaintiff reported "difficulty sleeping because of the pain and difficulty standing or walking for more than 20 minutes."357 He diagnosed her with moderate osteoarthritis and administered steroid injections to her knees that day.358 He did not prescribe any medications.359

On June 2, 2015, the plaintiff saw Dr. Banh.360 She "never started the Medrol Pak or amitriptyline prescribed to her because she actually discarded the medications."361 Dr. Molina's cortisone injection gave her good relief.362 She complained of persistent pain that radiated down her lower back to lower extremities.363 It started "8/10" in the morning and improved to "6/10 after she move[d] around."364 She "cut down her use of Norco to 4 times per day."365 An examination of the plaintiff's spine showed the following:

Dr. Banh's diagnosis was "Lumbar spinal stenosis, Levoscoliosis of the lumbar spine, Lumbar radiculopathy, Gait abnormality and Lumbar strain."367 He recommended that the plaintiff receive another round of epidurals and recommended physical therapy.368 They had a "long discussion regarding the use of her narcotic pain medication" and he advised her to reduce her use of the medication.369 He prescribed her 120 Norco pills and 60 Flexeril pills.370

On August 5, 2015, the plaintiff denied pain her lower left extremity and told PA Tung that her "pain is worse in the morning at 8/10 and improved 6/10 with movement and activity."371 The plaintiff's lumbar examination showed the following:

PA Tung diagnosed the plaintiff with lumbar spinal stenosis, levoscoliosis of the lumbar spine, lumbar radiculopathy, gait abnormality, and a lumbar strain.373 PA Tung recommended that the she receive another round of epidurals, but the plaintiff declined.374 She prescribed the plaintiff 120 Norco pills and 60 Flexeril pills.375

The plaintiff received bilateral injections in her knees on September 17, 2015 and again on December 15, 2015.376 In both appointments, the plaintiff reported "difficulty sleeping because of the pain and difficulty standing or walking for more than twenty min[utes.]"377 Dr. Molina noted both times that she had "moderate bilateral knee osteoarthritis."378

On March 22, 2016 and June 21, 2016, the plaintiff saw Dr. Molina and reported that she had difficulty sleeping because of pain and difficulty standing or walking for more than 20 minutes.379 She was experiencing acute knee pain (worse in her left knee) and some locking and popping in her left knee.380 On both occasions, Dr. Molina recommended an MRI to rule out meniscal tears and repeated the steroid injections in her knees.381

2.8 Eden Medical Center — Treating

The plaintiff visited the emergency room at Eden Medical Center multiple times between January 2014 and November 2016.382

On January 19, 2014, the plaintiff complained of leg pain and was treated by Jonathan Scott McWhorter, M.D..383 She felt like she had a foreign body in her left foot.384 Dr. McWhorter found her to be a good historian.385 She "ran out of [ ] Vicodin and [did not] have an appointment with [her] PMD for another few weeks."386 She was negative for back pain, joint swelling, and leg swelling and positive for arthralgia.387 The range of motion in her knee was "90 degrees with minimal pain."388 He noted that the plaintiff was prescribed "~260 pills of Norco/Vicodin" since the "beginning of December" and advised checking again if the plaintiff requested prescriptions in the future.389 He diagnosed her with "chronic pain, osteoarthritis[, and] drug seeking behavior" and prescribed Norco and ibuprofen.390

On January 28, 2014, the plaintiff presented with left knee pain and was treated by PA David King.391 Her left knee had moderate tenderness and normal strength and muscle tone.392 She was oriented to time and place and had a normal mood and affect.393 He administered Zofran and hydromorphone and prescribed her 20 Norco pills.394

On April 21, 2014, the plaintiff reported consistent dull non-radiating pain in her right leg after "falling out of a second story last year" and requested a refill of her pain medication because her treating physician was out of town.395 Amy Grubert, M.D., stated that the plaintiff "appeared well" and found "no swelling over the right leg."396 She diagnosed the plaintiff with right-leg pain and discharged her with prescriptions of hydrocodone/acetaminophen and Norco.397 Dr. Grubert noted that "[p]otential duplicate medications [were] found."398

On September 12, 2015, the plaintiff returned for a refill of Norco.399 PA Daoud Hamidi conducted a head-to-toe examination and "no injuries were found."400 The plaintiff's alignment was good and there was no "significant evidence [of an injury] that would require immediate surgical intervention."401 "[O]ccult fractures, ligament injury, tendon injury, [and] cartilage injury [had] been considered and [could not] be completely excluded."402 He diagnosed her with "Pain of the lower extremity ... and abrasion, foot."403 He prescribed 15 Norco pills.404

On March 6, 2016, the plaintiff saw Benjamin Meeks, M.D., for chronic bilateral-knee and lower-back pain.405 Dr. Meeks found "diffuse tenderness to palpation in both knees" with no swelling, a good range of motion, and normal muscle tone.406 The plaintiff's sensation was intact, her "motor [was] 5 out of 5 to heel and toe raise," and she had a "slight decreased range of motion due to secondary pain."407 She was alert and oriented to place and time, and she had a normal mood and affect.408 Dr. Meeks reviewed the plaintiff's CURES history and found that she received other prescriptions for narcotic medications from other providers, in addition to the 120 to 180 tablets of Norco and Percocet a month she received from PA Deivert.409 He diagnosed her with "Bilateral low back pain without sciatica [and] Chronic pain of both knees."410 He prescribed 20 tablets of Norco.411

On November 9, 2016, the plaintiff reported "sharp, severe, constant, non-radiating" dental pain.412 She denied a new injury or a change in back pain.413 She took ibuprofen with "minimal relief" and hydrocodone with "good relief."414 The plaintiff said she was a sales coordinator and had two children.415 PA King diagnosed her with "Pain due to dental caries [and] Elevated blood pressure."416 PA King noted that the plaintiff was seen "multiple times in the past for pain related complaints" and her CURES report showed "multiple narcotic pain medication prescriptions of hydrocodone . . . in quantities of 180 every month [and] also multiple opiate prescriptions from different providers."417 Her record contained a pop-up note saying that she was "obtaining controlled substances from different providers."418 The plaintiff told PA King that she did not pick up her most recent Norco prescription.419 She "show[ed] no clinical signs of opiate toxicity or withdrawal."420 PA King advised her that she would be given a prescription for pain medication that day, but "in the future[,] she [would] not receive a prescription from the ED for opiate pain medication (unless for acute injury or condition such as fracture) given prior frequent pain medications [and] that she need[ed] to obtain future prescriptions for narcotic pain meds from a single medical provider."421 He dispensed her 8 Norco pills and 40 penicillin pills.422 She was also "[a]dvised not to drive or operate heavy machinery while taking medication."423 [The plaintiff] verbalized understanding of this plan and agreed."424 She said that she would "take the bus home because her ride cancelled."425

2.9 Darien Behravan, M.O. — Examining

On July 28, 2016, Dr. Behravan, a workers' compensation doctor, examined the plaintiff for a shoulder injury that occurred on October 1, 2015 and an ankle injury on November 16, 2015.426 The plaintiff told him that she had sustained an injury to her right shoulder while working as a front-desk associate at a Holiday Inn Express.427 She "hit her shoulder against an open door while she was walking out."428 She did not see anyone for the injury, just her primary-medical doctor."429 "[T]he pain was tingling and constant" in her shoulder during the examination.430

Dr. Behravan found the following in an examination of the plaintiff's right shoulder:

Her right shoulder maneuvers were also "positive for AC joint crepitus and [her] spencer maneuvers [were] restricted."432 For her right elbow, he found that valgus and varus stress tests were negative and "tenderness to palpation [was] noted over the lateral epicondyle."433 He diagnosed the plaintiff with "pain in right shoulder," "other sprain of right shoulder," and "other bursitis of elbow."434 He also found that she had various postural deficiencies.435

Dr. Behravan examined X-rays and MRI's of the plaintiff's knees, chest, and back from 2010, 2011 and 2012.436 X-rays of her knees from 2012 showed "osteoarthritis of the right patellar femoral joint, [and] mild degenerative changes of the medial compartments."437 An MRI of her right knee from 2011 showed "slight blunting of the medial meniscal edge, mild chronic chondromalacia patella[,] and bursitis in the right knee."438 An MRI of her spine from 2010 showed an "annular disc bulge with left paracentral protrusion and peripheral annular fissure at L5-S1, resulting in moderate narrowing of the central canal and bilateral foramina; an extension of disc into left S1 lateral recess with abutment of the descending left S1 nerve root; another bulge with focal central protrusion at L4-5 resulting in moderate narrowing of the central canal and mild to moderate bilateral foraminal encroachment; and [an] annular bulge with focal central protrusions and hypertrophy of the ligament flavum at L3-4, resulting in mild moderate narrowing of the central canal and mild bilateral neural foraminal stenosis."439

Dr. Behravan recommended that the plaintiff "continue with work restrictions of no pushing, pulling or lifting over 15 pounds with the right hand and no lifting above shoulder level with the right hand more than 1/3 of the shift[,]" attend "an aggressive course of physical therapy ... dedicated to the right shoulder and elbow[,]" lose weight, and if the pain continued, receive "stem cell therapy or PRP injection into the right shoulder."440

2.10 Kim Goldman, Psy.D. — Examining

On February 18, 2015, Kim Goldman, Psy.D., performed a psychological evaluation on the plaintiff, using the Wechsler Adult intelligence Scale IV and the Wechsler Memory Scale IV, in Hayward, California.441

The plaintiff "was driven to the appointment by a friend."442 She was identified by her driver's license.443

"She independently completed a preprinted five-page history form."444

The plaintiff complained that she was "very depressed, emotional," "had black outs" "[the] desire to sleep a lot[,]" and "[was] unable to sleep at night."446 She began to experience the symptoms "after she injured herself in a fall from a second-floor window."447

The plaintiff's educational and vocational history were as follows:

The plaintiff described her daily functioning.449 She "stopped driving 2-3 years" before.450 She was "able to shower, bathe, groom, and dress herself without help" and could "pay bills and keep track of money without help from other people."451 The plaintiff said that she could not do much with her current condition: "I can't move[;] I like to sit in the sun."452 She "was prescribed an unknown type of psychotropic mediation by a provider through Hayward Family Care reportedly due to depression ... [which] helps [her] get things done in the absence of negative side effect."453

Dr. Goldman found that the plaintiff "presented as a questionable historian."454 The plaintiff was "pleasant, but only superficially[,] and cooperative throughout the evaluation."455 She followed instructions without the need for clarification or repetition but "did not make an adequate effort on the tasks presented to her."456 She was coherent, the rate of her speech was normal, her verbalizations were clear and 100% intelligible, and she was alert and aware.457 Dr. Goldman canceled the evaluation because, although the plaintiff paid attention to instructions, "she appeared to make a volitional effort to simulate cognitive impairment."458 Thus, although she found that the plaintiff had several disorders, Dr. Goldman deferred her testing because of "malingering."459

2.11 Disability Determination Explanation

During the administrative process, non-examining doctors generated two disability determination explanations ("DDE"), one related to the plaintiff's initial application and one at the reconsideration level.

At the initial level, Tawnya Brode, Psy.D., analyzed the plaintiff's mental-health records and concluded that the plaintiff had an affective disorder rated as severe, but that this impairment did not "precisely satisfy the diagnostic criteria of 12.04."460 She noted that there was evidence that the plaintiff was "depressed and [had] some difficulties regard[ing] memory and concentration."461

The plaintiff did not provide sufficient evidence for the `B' or `C' criteria of the listings.462 She also failed to put forward sufficient medical or opinion evidence to evaluate her residual functional capacity ("RFC") and thus was determined "not disabled."463

On reconsideration, Kim Morris, Psy.D., found that there was insufficient evidence to substantiate "organic mental disorders" and an impairment was present that did not precisely satisfy the diagnostic criteria for "affective disorders" in the `A' criteria listings.464 There was also insufficient evidence to establish `B' or `C' criteria listings.465

Linda Pancho, M.D., assessed the plaintiff's RFC.466 She found that the plaintiff could do the following: occasionally lift or carry twenty pounds; frequently lift or carry ten pounds; stand or walk six hours out of an eight-hour work day push or pull an unlimited amount; and climb ramps/stairs, climb ladders/ropes/scaffolds, and balance, stoop, kneel, crouch, or crawl only occasionally.467 She found that the plaintiff did not have any manipulative, visual, communicative or environmental limitations.468 The plaintiff was determined not disabled.469

3. Administrative Hearing

3.1 The plaintiff's testimony

On February 1, 2017, the plaintiff testified at a hearing before the ALJ.470 The ALJ examined the plaintiff first.

The ALJ asked the plaintiff whether she was working, and if so, whether it was full or part-time.471 The plaintiff was working part-time, making $1,000 a month.472 She took pain medication for her knees and back.473 When asked about reported self-employment income in 2015, the plaintiff said that she was part of a trucking company in 2015, but she "never saw that money, [she] was just added on the business."474 It was her husband's business, but he died and she could not operate it herself because of her health.475

The plaintiff worked twenty-five to thirty hours a week in a hotel as a PBX operator (one who routes incoming calls to the correct department of a business).476 The plaintiff's jobs the year before were the same, but she could not manage them full time because standing was difficult for her due to her sore knee "all the time."477 When asked whether she could sit and whether sitting caused her trouble, the plaintiff responded "[w]ell, I could sit for a little bit and then I have to get up because I have a back issue as well."478

The plaintiff's attorney examined her next. The plaintiff "made about $1000 a month."479 Her knee pain was worse than her back.480 She worked at the front desk, usually for eight hours a day, and had to stand three to four times a day and "they let [her] sit and ... move around."481 Her pain level was the worst when she got home from work and that is when she needed "to take a pain pill."482 After she took the pain pill, her pain level was "about five to six."483 The plaintiff did not take her pain medication at work because it would make her fall asleep.484 Sometimes her pain worsened throughout the work day.485

The plaintiff used a cane to climb the stairs at work and at home and wore knee braces (prescribed by a doctor) all the time.486 When asked whether she saw a doctor, and if so, whether the doctor knew that she had returned to work, the plaintiff replied that she had "a very good doctor" who was "very concerned about [her] working."487 The plaintiff stopped working in April 2011.488 In response to a question about whether her pain caused her difficulty focusing, the plaintiff responded that "[her] pain gets so bad that [she] has to crawl on the floor sometimes."489 The onset of her disability was May 3, 2011, when she had her knee arthroscopy.490

3.2 Vocational Expert Testimony

The VE classified the plaintiff's work from 1993 to 2011 as "a hotel clerk."491 When ALJ asked the VE to characterize "the hotel work in vocational terms," the VE said that the "DOT code [is] 238.367-038, exertion level is light, and SVP is 4."492 The VE said that the plaintiff's other job was "a PBX or a telephone switchboard operator ... DOT code 235.662, exertion level [ ] sedentary and the SVP is 3."493 He testified that some but not all PBX or telephone switchboard operators are permitted to sit and stand at will, "especially if they have headsets."494

3.3 Administrative Findings

The ALJ followed the five-step sequential evaluation process to determine if the plaintiff was disabled and concluded that she was not.495

At step one, the ALJ found that the plaintiff "did not engage in work activity commensurate with substantial gainful activity from April 2011 until November 2016."496

At step two, the ALJ determined that the plaintiff had the following severe impairments: "osteoarthritis of the knees, morbid obesity, opioid dependence, degenerative disc disease, and affective disorders with diagnoses including depression."497

The plaintiff "initially alleged the severe impairments of traumatic brain injury, a damaged right leg, and arthritis of the knee, a back injury, depression, chronic severe headaches, fatigue and insomnia" and "later alleged [ ] bilateral knee osteoarthritis, lumbar degenerative disc disease, anxiety and depression."498 Regarding these alleged impairments the ALJ held:

The ALJ found that obesity was a severe impairment "when combined with the musculoskeletal impairments."500

The ALJ stated the following of substance abuse:

At step three, the ALJ held that none of the plaintiff's impairments or combination thereof met or medically equaled the severity of those listed in "C.F.R. Part 404, Subpart P, Appendix 1 for the requisite period (20 C.F.R. § 404.1520(d), 404.1526)."502

The ALJ found that the plaintiff did not meet the requirements of Listing Section 1.03 because of the following:

The ALJ ruled that plaintiff's spinal impairment did not meet the criteria of Listing Section 1.04 for the following reason:

The ALJ held that the plaintiff's mental impairment did not meet or equal the severity required in Listing Section 12.04 or any section.505

To satisfy the criteria in "paragraph B," the plaintiff's mental impairment had to result in at least one extreme or two marked limitations in the following areas of functioning:

The ALJ found that in "understanding, remembering, or applying information, [the plaintiff] had mild to moderate limitations[,]" that "[i]n interacting with others, the [plaintiff] has had no to mild limitations[,]" and that "[w]ith regard to concentrating, persisting, or maintaining pace, [the plaintiff] has had mild to moderate limitations."507 The ALJ held that the plaintiff did not satisfy the "paragraph B" criteria because her mental impairment "did not cause at least two `marked' limitations or one `extreme' limitation."508

He also said that he had considered whether the "paragraph C" criteria were satisfied but determined that they were not because the plaintiff had not submitted the requisite evidence to make such a determination.509

Before step four, the ALJ determined that the plaintiff "had the residual functional capacity to perform the full range of sedentary work, as defined in 20 C.F.R. § 404.1567(a), and [was] able to perform simple routine tasks equating to unskilled work."510 He considered "all symptoms and the extent to which these symptoms [could] reasonably be accepted as consistent with the objective medical evidence and other evidence[.]"511 He "considered opinion evidence in accordance with the requirements of 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p."512

The ALJ determined that the plaintiff's medically determinable impairments could reasonably cause the alleged symptoms and that her statements concerning the intensity, persistence, and limiting effects of these symptoms were not consistent with the medical evidence in the record.513

He said the following about the plaintiff's statements concerning her impairments:

Then, the ALJ explained that the objective diagnostic tests and imaging did not support a finding of disability.515 They showed "no impairments to mild abnormalities [ ] consistent with the plaintiff's complaints" until imaging of the plaintiff's knees and spine in 2014.516 Imaging of her spine showed "no significant protrusions, central canal or neural foraminal narrowing" in 2010, mild degenerative disc disease in 2013, and disc extrusions causing spinal stenosis in 2014.517 Imaging of her knees showed abnormalities in her right knee leading to arthroscopy in 2011, moderate osteoarthritis in both knees in 2012, and degenerative changes, osteophytes, and joint space narrowing in her right knee in 2013.518 In 2014, the plaintiff's spine and knee impairments "were at least partially successfully treated with cortisone injections and transforaminal steroid injections."519

The ALJ next said that "[a] preponderance of the objective medical evidence [did] not support a more restrictive functional capacity," but "[b]ased on the record as a whole.... the claimant is found limited to sedentary work."520 The evidence suggested "an addiction to opioid medications" but "a substance use disorder is not a factor material to a determination of disability in this case because the above residual functional capacity finding [was] supported with or without substance abuse during the relevant period."521

The ALJ described the records of the plaintiff's different medical providers about her physical impairments.522 He accorded reduced weight to the opinion of the State's medical consultant, Dr. Pancho, because she "did not give enough consideration to the limitations due to [the plaintiff's] combined obesity and knee arthritis."523 The ALJ afforded weight to Dr. Behravan's opinion "only to the extent consistent with [the ALJ's] findings" because there was no "probative medical evidence to support the right arm limitations [described by Dr. Behravan] for a continuous period of twelve months."524 He also gave little weight to PA Deivert because her opinion was "not consistent with the record as a whole, including the [plaintiff's] work activity or the medical evidence."525

The ALJ also summarized records about the plaintiff's psychological impairments. He found "the medical evidence suggested some episodes of depression with short periods of prescribed psychotropic medication, but no psychiatric hospitalizations, no significant ongoing treatment with a psychiatrist or psychologist, and no treatment with a counselor or therapist."526 The plaintiff did not return functional reports for a psychologist she consulted in 2015 despite repeated attempts to obtain them from her.527 After reviewing the evaluating psychologists' assessments, "the record reasonably can be interpreted as showing no severe mental impairment."528 "[B]ased on the record as whole, considering non-physical limitations, complaints of significant depression and some reported concentration limitations due to pain or medication side-effects ... [the plaintiff is] reasonably limited to simple routine tasks equating to unskilled work."529

At step four, the ALJ held that based on his assessment of the plaintiff's residual functional capacity, the plaintiff's prior work as a hotel clerk and PBX operator were precluded because her work as a hotel clerk was "light, semi-skilled work with and SVP of 4" and her work as a PBX was "sedentary, semi-skilled with and SVP of 4."530

At step five, the ALJ found that the plaintiff had the ability to perform work at the full sedentary exertional level but was compromised by a non-exertional limitation.531 He stated that "[i]f the claimant has solely non-exertional limitations, Section 204.00 in the Medical-Vocational Guidelines provides a framework for decision-making (SSR 85-15)."532 The ALJ ruled that this non-exertional limitation had "no effect on the occupational base of unskilled work at the sedentary exertional levels."533 The ALJ therefore held:

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set aside the Commissioner's denial of benefits only if the ALJ's "findings are based on legal error or are not supported by substantial evidence in the record as a whole." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g). "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." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold "such inferences and conclusions as the [Commissioner] may reasonably draw from the evidence." Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record supports the ALJ's decision and a different outcome, the court must defer to the ALJ's decision and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097-98 (9th Cir. 1999). "Finally, [a court] may not reverse an ALJ's decision on account of an error that is harmless." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

GOVERNING LAW

A claimant is considered disabled if (1) she suffers from a "medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months," and (2) the "impairment or impairments are of such severity that. . . [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 1382c(a)(3)(A) & (B). The five-step analysis for determining whether a claimant is disabled within the meaning of the Social Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520).

For steps one through four, the burden of proof is on the claimant. Gonzales v. Sec'y of Health & Human Servs., 784 F.2d 1417, 1419 (9th Cir. 1986). At step five, the burden shifts to the Commissioner. Id.

ANALYSIS

The plaintiff contends that the ALJ erred by (1) improperly rejecting the opinions of her treating and examining doctors and her treating physician's assistant, (2) rejecting her testimony, and (3) failing to base his step-five finding on substantial evidence. For the reasons below, the court grants the plaintiff's motion for summary judgment, denies the Commissioner's motion for summary judgment, and remands for further proceedings consistent with this order.

1. Whether the ALJ Improperly Weighed Medical-Opinion Evidence

The plaintiff argues that the ALJ erred by (1) affording no weight to the limitations Dr. Behravan found for the plaintiff's right arm, (2) failing to address Dr. Bhandari's letter stating that the plaintiff's cocktail of medications made her forgetful, and (3) giving little weight to PA Deivert's opinion.535 The ALJ erred in weighing this evidence.

1.1 Legal Standard

The ALJ is responsible for "`resolving conflicts in medical testimony and for resolving ambiguities.'" Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record, including each medical opinion in the record, together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b); see Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) ("[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.") (internal quotation marks and citation omitted).

"In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that guide [the] analysis of an ALJ's weighing of medical evidence." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527).536 Social Security regulations distinguish between three types of physicians: (1) treating physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). "Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing [non-examining] physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing Lester, 81 F.3d at 830); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

An ALJ, may disregard the opinion of a treating physician, whether or not controverted. Andrews, 53 F.3d at 1041. "To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence." Ryan, 528 F.3d at 1198 (alteration in original) (internal quotation marks and citation omitted). By contrast, if the ALJ finds that the opinion of a treating physician is contradicted, a reviewing court will require only that the ALJ provide "specific and legitimate reasons supported by substantial evidence in the record." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal quotation marks and citation omitted); see Garrison, 759 F.3d at 1012 ("If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.") (internal quotation marks and citation omitted). "The opinions of non-treating or non-examining physicians may serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

An ALJ errs when he "rejects a medical opinion or assigns it little weight" without explanation or without explaining why "another medical opinion is more persuasive, or criticiz[es] it with boilerplate language that fails to offer a substantive basis for [his] conclusion." Garrison, 759 F.3d at 1012-13. "[F]actors relevant to evaluating any medical opinion, not limited to the opinion of the treating physician, include the amount of relevant evidence that supports the opinion and the quality of the explanation provided[,] the consistency of the medical opinion with the record as a whole[, and] the specialty of the physician providing the opinion. . . ." Orn, 495 F.3d at 631. (citing 20 C.F.R. § 404.1527(d)(3)-(6)); see also Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (an ALJ need not agree with everything contained in the medical opinion and can consider some portions less significant than others).

The ALJ also must consider the opinions of other "medical sources who are not acceptable medical sources and [the testimony] from nonmedical sources." 20 C.F.R. § 404.1527(f). The ALJ is required to consider observations by "other sources" as to how an impairment affects a claimant's ability to work. Id. Nonetheless, an "ALJ may discount [the] testimony" or an opinion "from these other sources if the ALJ gives . . . germane [reasons] for doing so." Molina, 674 F.3d at 1111 (internal quotations and citations omitted). "[A]n opinion from a medical source who is not an acceptable medical source. . . may outweigh the medical opinion of an acceptable medical source[.]" 20 C.F.R. § 404.1527(f)(1). "For example, it may be appropriate to give more weight to the opinion of a medical source who is not an acceptable medical source if he or she has seen the individual more often than the treating source, has provided better supporting evidence and a better explanation for the opinion, and the opinion is more consistent with the evidence as a whole." Id.

1.2 Dr. Behravan

Dr. Behravan, a workers' compensation doctor, examined the plaintiff on July 28, 2016, for injuries that she suffered to her right shoulder (October 1, 2015) and right ankle (November 16, 2015).537 He recommended aggressive physical therapy and stem-cell therapy or injections for the shoulder if pain continued, and opined that she should continue with work restrictions of no pushing, pulling, or lifting more than 15 pounds and no lifting above shoulder level for more than one third of her work shift.538 Because Dr. Behravan is an examining medical source and his opinion is uncontradicted, the ALJ was required to give clear and convincing reasons supported by substantial evidence to reject his opinion. Ryan, 528 F.3d at 1198. The ALJ did not satisfy this burden.

The ALJ accorded weight to Dr. Behravan's opinion mentioning the arm limitations, but noted that there was no probative evidence to support the right-arm limitations at that time or for a continuous period of twelve months.539 Unless an "impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months." 20 C.F.R § 404.1509. This is known as the "duration requirement." Id. It is true that Dr. Behravan did not state that he expected the arm limitation to last a year.540 But it is not unsurprising that a workers' compensation doctor speaks only to the injury in front of him and not an SSI-disability duration requirement that was not before him.

At a physical examination at Eden Medical Center on March 6, 2016, the plaintiff exhibited a "normal range of motion" and did not complain of any soreness in her right upper extremity.541 But that examination was for the plaintiff's knee and lower-back.542 She still complained of shoulder pain, and the medical records show complaints of shoulder pain, at least through November 2016.543 Thus, the ALJ erred because the reason he provided for rejecting Dr. Behravan's opinion was not supported by substantial evidence in the record.

1.3 Dr. Bhandari

Dr. Bhandari treated the plaintiff from May 5, 2011 to January 15, 2014 and his opinions are not contradicted.544 Thus, the ALJ must state clear and convincing reasons supported by substantial evidence to disregard his opinion. See Alcala v. Colvin, SACV 12-0626 AJWW, 2013 WL 1620352, at *5 (C.D. Cal. Apr. 15, 2013) (citing Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). On February 28, 2012, Dr. Bhandari opined that the plaintiff's cocktail of medications caused forgetfulness.545 The plaintiff claims that the ALJ did not mention this opinion in his decision and gave no reasons for rejecting it.546

But the ALJ did address Dr. Bhandari's letter, noting that the plaintiff had mild to moderate limitations in "understanding, remembering and applying information" (in his determination for the "paragraph B" criteria).547 He stated "[a] doctor wrote in February 2012 that the claimant was on medications that cause her to be forgetful; she does take narcotic medications daily."548 The ALJ factored in the findings from the letter in later parts of his decision. In assessing the plaintiff's RFC, the ALJ found that "there is evidence of some adverse side-effects" from those medications.549 He determined that the plaintiff had non-exertional limitations that compromised her ability to function at the full sedentary level:

The ALJ thus addressed the Dr. Bhandari's letter and gave it weight. This is not a ground for remand.

1.4 PA Deivert

PA Deivert qualifies as an "other source." Molina, 674 F.3d at 1111. She opined that the plaintiff was unable to work as of November 14, 2015 and treated the plaintiff for knee pain, back pain and fatigue from May 2014 to November 2016.551 The ALJ referenced only her note from 2016 that the plaintiff had been unable to work beginning November 2015.552 The ALJ gave little weight to her opinion: "I give little weight to the physician assistant's opinion because it is not consistent with the record as a whole, including the claimant's work activity or the medical evidence."553 But as the plaintiff contends, PA Deivert treated her, and her opinion was not inconsistent with the record, which shows ongoing treatment for knee and back pain and fatigue.554

First, in the Ninth Circuit, "[c]ontradictory medical evidence is not a germane reason to reject lay witness testimony." Burns v. Berryhill, 731 Fed. App'x 609, 613 (9th Cir. 2018) (citing Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017)).

Second, PA Deivert's opinion should be given additional weight as a treating source. See 20 C.F.R. § 404.1527(f)(1). In Olmstead v. Colvin, the court held that an ALJ's failure to provide germane reasons for discounting a nurse practitioner's opinion was "especially egregious where the nurse practitioner saw Plaintiff on several occasions and her records make direct references to Plaintiff's limitations and ability to work." No. 15-cv-02656-NJV, 2016 WL 3611881, at *4 (N.D. Cal. July 6, 2016). Here, PA Deivert saw the plaintiff at least 13 times from May 2014 to November 2016.555 The ALJ held that PA Deivert's opinion was "not consistent with the record as whole, including the claimant's work activity or the medical evidence."556 He did not explain specifically what parts of PA Deivert's opinion were inconsistent with the record or how they were inconsistent. This is insufficient.

2. Whether the ALJ Improperly Rejected the Plaintiff's Testimony

The plaintiff argues that the ALJ erred by rejecting the plaintiff's testimony and failed to identify which parts of the plaintiff's testimony, if any, were inconsistent with the medical record or otherwise not credible."557 The court agrees.

The ALJ found the following about the plaintiff's testimony:

In assessing a claimant's credibility, an ALJ must make two determinations. Molina, 674 F.3d at 1112. "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.'" Id. (quoting Vasquez, 572 F.3d at 591). Second, if the claimant produces that evidence, and "there is no evidence of malingering," the ALJ must provide "specific, clear and convincing reasons for" rejecting the claimant's testimony regarding the severity of the claimant's symptoms. Id. (internal quotation marks and citations omitted).

"At the same time, the ALJ is not `required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'" Id. at 1112 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). "Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment." Orn, 495 F.3d at 636 (internal punctuation omitted). "[T]he ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014); see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 2016 WL 7369300, at *12 (N.D. Cal. Dec. 20, 2016).

Because the ALJ discredited the plaintiff's testimony in part on his assessment of the medical-opinion evidence, including Dr. Behravan's medical opinion, the court remands on this ground too. The ALJ can reassess the plaintiff's credibility in context of the entire record.

3. Whether the ALJ's Step-Five Determination Is Supported by Substantial Evidence

The plaintiff argues that the ALJ's findings at step five were not supported by substantial evidence.559 The ALJ called the VE at the hearing and did not ask any hypotheticals about the plaintiff's ability to perform work. The ALJ found that the plaintiff "had the residual functional capacity to perform the full range of sedentary work, as defined in 20 C.F.R. § 404.1567(a), and [was] able to perform simple routine tasks equating to unskilled work."560

At step five the ALJ determined "considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the [plaintiff] could have performed."561

Because the court remands for a reweighing of medical-opinion evidence and the plaintiff's testimony, and because the RFC and non-exertional limitation determinations were based on those assessments, the court remands on this ground.

4. Whether the Court Should Remand for Further Proceedings or Determination of Benefits

The court has "discretion to remand a case either for additional evidence and findings or for an award of benefits." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen, 80 F.3d at 1292); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) ("The decision whether to remand for further proceedings or simply to award benefits is within the discretion of [the] court.") (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). Generally, "`[i]f additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded.'" Garrison, 759 F.3d at 1019 (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)) (alteration in original); see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) ("Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits."); McCartey, 298 F.3d at 1076 (remand for award of benefits is discretionary); McAllister, 888 F.2d at 603 (remand for award of benefits is discretionary); Connett, 340 F.3d at 876 (finding that a reviewing court has "some flexibility" in deciding whether to remand).

For the reasons described above, the court finds that remand is appropriate so as to "remedy defects in the original administrative proceeding." Garrison, 759 F.3d at 1019 (quoting Lewin v. Schweiker, 654 F.2d at 635 (alteration in original)).

CONCLUSION

The court grants the plaintiff's motion, denies the Commissioner's cross-motion, and remands for further proceedings consistent with this order.

IT IS SO ORDERED.