Beber v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

THOMAS E. B.,1 6:18-cv-02109-BR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

DREW L. JOHNSON

SHERWOOD J. REESE

Drew L. Johnson, P.C.

1700 Valley River Dr.

Eugene, OR 97401

(541) 434-6466

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

RENATA GOWIE

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

1 In the interest of privacy this Court uses only the first

name and the initial of the last name of the nongovernmental

party in this case. Where applicable, this Court uses the same

designation for the nongovernmental party's immediate family

member.

1 - OPINION AND ORDER

MICHAEL W. PILE

Acting Regional Chief Counsel

ALEXIS L. TOMA

Special Assistant United States Attorney

Social Security Administration

701 5th Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-2950

Attorneys for Defendant

BROWN, Senior Judge.

Plaintiff Thomas E. B. seeks judicial review of the final

decision of the Commissioner of the Social Security

Administration (SSA) in which the Commissioner denied

Plaintiff's application for Disabled Adult Child (DAC) Insurance

Benefits under Title II of the Social Security Act. This Court

has jurisdiction to review the Commissioner's final decision

pursuant to 42 U.S.C. § 405(g). On September 6, 2019, the

Commissioner also filed a Motion (#17) to Remand with his

responsive brief. The parties agree the Court should remand

this matter, but they disagree on the purpose for remand.

For the reasons that follow, the Court REVERSES the

decision of the Commissioner and REMANDS this matter pursuant to

sentence four of 42 U.S.C. § 405(g) for the immediate

calculation and award of benefits.

2 - OPINION AND ORDER

ADMINISTRATIVE HISTORY

I. Prior Proceedings

On March 7, 2005, Plaintiff protectively filed an

application for Supplemental Security Income (SSI) benefits.

Tr. 38, 78-80.2 Plaintiff alleged a disability onset date of

March 7, 2005. Plaintiff's application was denied initially and

on reconsideration. An Administrative Law Judge (ALJ) held a

hearing on August 14, 2007. Tr. 850-87. Plaintiff was

represented by an attorney at the hearing.

On September 25, 2007, the ALJ issued an opinion in which

he found Plaintiff was not disabled and, therefore, not entitled

to benefits. Tr. 38-46. Plaintiff did not request review of

this decision.

On October 15, 2010, Plaintiff reapplied for SSI benefits.

Plaintiff alleged a disability onset date of January 1, 2007.

Tr. 371.

On May 11, 2012, an ALJ issued an opinion without a hearing

and concluded Plaintiff met the requirements for Listing 12.04

2 Citations to the official Transcript of Record (#11)

filed by the Commissioner on May 17, 2019, are referred to as

"Tr."

3 - OPINION AND ORDER

for bipolar disorder as of October 15, 2010, the date of his SSI

application. Tr. 370-75. Accordingly, the ALJ found Plaintiff

was disabled and awarded Plaintiff benefits starting from

October 2010. Tr. 375.

II. Current Proceedings

On June 29, 2015, Plaintiff protectively filed his

application for DAC benefits. Tr. 21, 377. Plaintiff alleges a

disability onset date of February 14, 1987, his date of birth.

Tr. 21, 377, 444. Plaintiff=s application was denied initially

in November 2015 and on reconsideration in April 2016. Tr. 21.

An ALJ held a hearing on May 1, 2018. Tr. 888-915. Plaintiff

and a vocational expert (VE) testified at the hearing, and

Plaintiff was represented by an attorney at the hearing.

On June 15, 2018, the ALJ issued an opinion in which he

found Plaintiff was not disabled and, therefore, is not entitled

to DAC benefits. Tr. 21-29. Plaintiff requested review by the

Appeals Council. On October 17, 2018, the Appeals Council

denied Plaintiff=s request to review the ALJ's decision, and the

ALJ's decision became the final decision of the Commissioner.

Tr. 11-13. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On December 10, 2018, Plaintiff filed a Complaint in this

Court seeking review of the Commissioner=s decision.

4 - OPINION AND ORDER

On July 11, 2019, Plaintiff filed his initial Brief (#16)

in support of his challenge to the ALJ's determination.

On September 6, 2019, the Commissioner filed a Response

(#17) and Motion to Remand this matter to the ALJ. The

Commissioner concedes the ALJ erred and that his decision was

not supported by substantial evidence in the record. The

Commissioner, therefore, requests the court to remand this

matter for further administrative proceedings. On September 12,

2019, Plaintiff filed a Reply (#18) and Response to the

Commissioner's Motion to Remand and asserts the case should be

remanded for an award of benefits. Accordingly, the issue

before this Court is whether the Court should remand for further

administrative proceedings or for an award of benefits.

STANDARDS FOR REMAND

The decision whether to remand for further proceedings or

for immediate payment of benefits is within the discretion of

the court. Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir.

2000). The issue turns on the utility of further

proceedings. A remand for an award of benefits is appropriate

when no useful purpose would be served by further administrative

proceedings or when the record has been fully developed and the

5 - OPINION AND ORDER

evidence is insufficient to support the Commissioner’s

decision. Strauss v. Comm’r, 635 F.3d 1135, 1138-39 (9th Cir.

2011)(quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.

2004)).

The Ninth Circuit has established a three-part test "for

determining when evidence should be credited and an immediate

award of benefits directed." Harman, 211 F.3d at 1178. The

court should grant an immediate award of benefits when

(1) the ALJ has failed to provide legally sufficient

reasons for rejecting such evidence, (2) there are no

outstanding issues that must be resolved before a

determination of disability can be made, and (3) it is

clear from the record that the ALJ would be required

to find the claimant disabled were such evidence

credited.

Id. The second and third prongs of the test often merge into a

single question: Whether the ALJ would have to award benefits

if the case were remanded for further proceedings. Id. at 1178

n.2.

In Triechler v. Commissioner of Social Security

Administration the Ninth Circuit indicated a remand for further

administrative proceedings is "generally useful where the record

has not been fully developed, there is a need to resolve

conflicts and ambiguities, or the presentation of further

evidence may well prove enlightening in light of the passage of

6 - OPINION AND ORDER

time." 775 F.3d 1090, 1101 (9th Cir. 2014)(citations and

internal quotations omitted). The court must "assess whether

there are outstanding issues requiring resolution before

considering" whether to credit evidence as true. Id. at 1105

(emphasis in original).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since February 14, 1987, Plaintiff=s

alleged disability onset date. Tr. 24.

At Step Two the ALJ found Plaintiff, prior to attaining age

22, has had the severe impairments of neurocognitive disorder,

bipolar disorder, anxiety disorder, attention deficit

disorder/attention deficit hyperactivity disorder (ADD/ADHD),

and a history of substance abuse. Tr. 24.

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments do not meet or medically equal one of

the listed impairments in 20 C.F.R. part 404, subpart P,

appendix 1. Tr. 24. The ALJ found Plaintiff has the RFC to

perform a full range of work at all exertional levels with the

following nonexertional limitations: can only understand,

remember and carry out short, simple, routine job instructions

7 - OPINION AND ORDER

consistent with a reasoning level of 2 or less; can have only

occasional, superficial contact with coworkers and no contact

with the public; and can only work in a static work environment

with few changes in work routines and settings. Tr. 25.

At Step Four the ALJ concluded Plaintiff cannot perform any

past relevant work. Tr. 28.

At Step Five the ALJ found Plaintiff can perform other jobs

that exist in the national economy such as industrial cleaner,

dryer attendant, and laundry worker. Tr. 29. Accordingly, the

ALJ found Plaintiff is not disabled. Tr. 29.

DISCUSSION

As noted, the Commissioner concedes the ALJ's decision is

not supported by substantial evidence in the record, and the

parties agree the Court should remand this matter. The

Commissioner contends the Court should remand this matter for

further administrative proceedings because the record does not

unambiguously establish Plaintiff is disabled, there are

outstanding evidentiary issues that must be resolved by the ALJ,

and further psychiatric testimony regarding Plaintiff's

limitations is necessary. Plaintiff, however, contends the

Court should remand this matter for an award of benefits on the

8 - OPINION AND ORDER

grounds that there is not any outstanding issue that must be

resolved and it is clear that the ALJ would be required to find

Plaintiff was disabled during the relevant time if the current

record is credited as true.

I. There are not any outstanding evidentiary issues to be

resolved on remand.

The Commissioner contends there are outstanding evidentiary

issues regarding Plaintiff's limitations that must be resolved

by the ALJ and that further psychiatric testimony is necessary.

In addition, the Commissioner contends the ALJ must also analyze

evidence of drug and alcohol abuse during the relevant period to

resolve any discrepancy regarding the ALJ's subsequent 2015 SSI

determination.

A. Additional medical evidence is unnecessary.

Multiple treating and examining physicians have

provided uncontradicted opinions regarding Plaintiff's mental

impairments and clarified the limiting effects of those

impairments for the period at issue. For example, in January

2011 Ryan Scott, Ph.D., an examining psychologist, found

Plaintiff "has had longstanding psychological problems since

childhood, which has [sic] interfered with his interpersonal

academic and occupational performance." Tr. 842. In June 2011

Julie Redner, Ph.D., another examining psychologist, provided a

9 - OPINION AND ORDER

detailed overview of Plaintiff's symptoms back to 1999 showing

Plaintiff experienced "hyperactivity, impulsivity, and

destructive behavior beginning around kindergarten, with self-

injurious and suicidal statements beginning at age five."

Tr. 807. Dr. Redner also found Plaintiff's "psychotic symptoms,

attentional problems, and behavioral disturbances clearly began

long before any substance abuse." Tr. 801. The Court notes the

ALJ who found Plaintiff disabled in May 2012 for SSI purposes

gave Dr. Redner's opinion "great weight" because Dr. Redner

"thoroughly review[ed] all of the records, and her opinion is

consistent with significant psychological testing she performed

and with the medical evidence of record as a whole." Tr. 374.

The ALJ who found in June 2018 that Plaintiff is not

disabled declined to address the opinions of Drs. Redner and

Scott on the ground that their opinions were rendered after

Plaintiff's 22nd birthday and, therefore, outside of the

evaluative period. Tr. 27. Although Drs. Redner and Scott

rendered their opinions in 2011 after Plaintiff had turned 22

years old, their opinions were, in fact, based on a review of

Plaintiff's medical records dating back to 1999 and both

specifically pointed out that Plaintiff experienced his

limitations and impairments as early as age five. Moreover, the

10 - OPINION AND ORDER

Commissioner does not identify any evidence in the record that

contradicts the opinions of Drs. Redner and Scott regarding the

childhood onset of Plaintiff's limitations and impairments. In

fact, the record reflects on June 6, 2006, during the applicable

period, Dr. Brasted, a treating physician, reported: Plaintiff

"has [had] extensive and multiple assessments, both

psychological and psychiatric, over the past many years"; "in

about sixth grade, [Plaintiff] began to have wild mood swings

including what he described as auditory and visual

hallucinations"; and Plaintiff "did not do well" on Ritalin and

"could not attend school." Tr. 304-05.

The Commissioner also contends Plaintiff's use of

drugs and alcohol magnified his symptoms and, therefore, further

development of the record is necessary to determine the effects

on Plaintiff's impairments. Although Dr. Brasted found

Plaintiff had many reported mental impairments in his past

medical records, the Commissioner points to only the June and

July 2006 records that indicate Plaintiff was not disabled

during this time because he had not been smoking marijuana.

Def.'s Brief (#17) at 5 (referencing Tr. 304-07). The record,

however, reflects just two months later Dr. Brasted noted

Plaintiff was "more depressed" and stated there was "also

11 - OPINION AND ORDER

evidence of attention deficit hyperactivity disorder and

anxiety." Tr. 299. The Ninth Circuit has pointed out the fact

that a person suffering from a mental impairment makes some

improvement "does not mean that the person's impairment no

longer affect[s] [his] ability to function in the workplace."

Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001).

Although the Commissioner concedes the ALJ failed to

provide legally sufficient reasons supported by substantial

evidence in the record for disregarding the opinions of the

various doctors, the Commissioner, nevertheless, contends it

would be "helpful" for the ALJ to conduct further administrative

proceedings to obtain additional psychiatric testimony. The

Ninth Circuit, however, has noted:

Although the Commissioner argues that further

proceedings would serve the "useful purpose" of

allowing the ALJ to revisit medical opinions and

testimony that she rejected for legally

insufficient reasons, our precedent and the

objectives of the credit-as-true rule foreclose

the argument that a remand for the purposes of

allowing the ALJ to have a mulligan qualifies as

a remand for a "useful purpose" under the first

part of credit-as-true analysis.

Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014).

Based on this record the Court concludes the ALJ did

not provide legally sufficient reasons based on substantial

evidence in the record for disregarding the opinions of

12 - OPINION AND ORDER

Drs. Redner, Scott, and Brasted; there are not any outstanding

medical issues that need to be resolved; and it would not serve

any useful purpose to remand this matter for further

proceedings.

B. Prior SSI decision is not "new evidence."

As noted, Plaintiff earlier applied for SSI benefits

on October 15, 2010. Plaintiff alleged a disability onset date

of January 1, 2007, in his application. On May 11, 2012, the

ALJ in that matter issued a decision in Plaintiff's favor, but

she only found Plaintiff was disabled beginning October 15,

2010, which was the date he applied for SSI benefits. The ALJ

did not make a finding as to whether Plaintiff was disabled

before October 15, 2010, and merely stated there was a "material

change in the severity of [Plaintiff's] condition" after

September 2007. Tr. 371-75. The ALJ pointed out that SSI

benefits do not become payable until the month after the

application is filed and that an earlier onset date would not

affect "the amount of [SSI] benefits [Plaintiff] may be eligible

to receive."

On June 29, 2015, Plaintiff filed this application

for DAC benefits. Plaintiff alleged a disability onset date of

February 14, 1987, which is his date of birth. The alleged

13 - OPINION AND ORDER

period of disability for DAC benefits began on his date of birth

to February 13, 2009, the day before he turned 22 years old.

See 20 C.F.R. §§ 404.350(a)(5), 404.1520(g). On June 15, 2018,

the ALJ here made the determination that Plaintiff was not

disabled and not entitled to DAC benefits for this period.

The Commissioner contends there is a conflict

regarding the current ALJ's denial of DAC benefits for the

disability period that ended on February 13, 2009, and the

disability onset date of October 15, 2010, found by the ALJ in

the prior SSI decision. Thus, the Commissioner contends the

Court should remand this case for further proceedings to examine

new evidence regarding the existence of Plaintiff's disability

between February 13, 2009, and October 10, 2015.

The Commissioner relies on Luna v. Astrue, 623 F.3d

1032 (9th Cir. 2010), to support his argument for remand. In

Luna the ALJ found the plaintiff was not disabled and denied her

application for benefits. The plaintiff appealed to the

district court. While that denial was still pending review

before the district court, the plaintiff filed a second

application for benefits, which the Commissioner allowed. In

the second application the Commissioner determined the

plaintiff's "disability onset date" to be "the day after her

14 - OPINION AND ORDER

first application was denied." Id. at 1033. The district court

remanded the case to the Commissioner for further administrative

proceedings to reconcile the Commissioner's initial denial of

benefits on the first application with the Commissioner's later

award of benefits. The plaintiff argued the proper remedy

should have been a remand for payment of benefits for the period

relevant to her first application based on the Commissioner's

subsequent disability finding. The Ninth Circuit affirmed the

remand for further administrative proceedings and held there was

a "'reasonable possibility' that the subsequent grant of

benefits was based on new evidence not considered by the ALJ as

part of the first application." Id. at 1035. The court noted

there was "only one day between the denial of [the plaintiff's]

first application and the disability onset date specified in the

award for her successful second application, but she may have

presented different medical evidence to support the two

applications, or there might be some reason to explain the

change." Id. at 1035.

Here Plaintiff points out that the award of SSI

benefits was made in 2012, which is more than three years before

he filed his DAC claim in 2015, and, therefore, the evidence

supporting that earlier SSI application was included in

15 - OPINION AND ORDER

Plaintiff's subsequent DAC claim; i.e., there is "no new

evidence" for the ALJ to consider.

In light of the fact that Plaintiff was awarded SSI

benefits in 2012 (three years before he filed for DAC benefits

in 2015) and the records from the SSI application were included

in Plaintiff's DAC claim, there is "no new evidence" from a

"subsequent grant of benefits" for the ALJ to consider. Thus,

the Court finds the SSI award was not based on an onset date "in

immediate proximity to an earlier denial of benefits."

On this record the Court concludes there is not any

"new evidence" the ALJ would be required to consider in order to

determine whether Plaintiff was disabled before February 2009.

Accordingly, the Court concludes there are not any

outstanding issues that must be resolved before a determination

of disability can be made as to Plaintiff's DAC claim.

II. When the medical evidence is credited as true, the ALJ

would be required to find that the Plaintiff is disabled.

When "the Commissioner fails to provide adequate reasons

for rejecting the treating physician's opinion, we credit that

opinion as a matter of law." Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1996). See also Reddick v. Chater, 157 F.3d 715, 729

(9th Cir. 1998)("We do not remand this case for further

proceedings because it is clear from the administrative record

16 - OPINION AND ORDER

that Claimant is entitled to benefits."); Rodriguez v. Bowen,

876 F.2d 759, 763 (9th Cir. 1989)(if remand for further

proceedings would only delay the receipt of benefits, judgment

for the claimant is appropriate).

Here Dr. Brasted described "a long history of psychological

symptoms related to bipolar disorder" and "large mood swings"

beginning in the sixth grade when Plaintiff described "auditory

and visual hallucinations." Tr. 304-307A. Dr. Redner noted

"hyperactivity, impulsivity, and destructive behavior beginning

around kindergarten, with self-injurious and suicidal statements

beginning at age five." Tr. 807. E. Gene Stubbs, M.D., a

treating psychiatrist, noted in March 2001 that Plaintiff was

diagnosed with Bipolar Affective Disorder in addition to ADHD

and medications were not controlling his symptoms well enough

for him to attend regular school. Tr. 213. Plaintiff also has

an extensive history of treatment with psychologists and

psychiatrists for mental-health disorders dating back to 2000.

Pl.'s Brief (#16) at 9.

On January 20, 2011, Ryan Scott, Ph.D., examined Plaintiff

regarding issues of bipolar disorder, spectrum autism, ADHD, and

a "learning disability." Tr. 838-43. Dr. Scott found Plaintiff

"has had extensive psychological and psychiatric assessments

17 - OPINION AND ORDER

going back to childhood," "his behavior continues to be

oppositional and difficult in spite of [treatment] efforts and

therapies," and "he depends on other for living skills, shelter,

and basic needs." Tr. 838-39, 925-27. Dr. Scott concluded

Plaintiff "has had longstanding psychological problems since

childhood, which had interfered with his interpersonal, academic

and occupational performance." Tr. 842.

Dr. Dorothy Anderson, Ph.D., a state-agency reviewing

psychologist, indicated in a Residual Functional Capacity

evaluation for the period from January 2005 to February 2009

that Plaintiff's "ability to maintain concentration for extended

periods" was "markedly limited." Tr. 384.

The parties concede the ALJ erred when he rejected the

opinions of the treating and examining physicians and did not

provide legally sufficient reasons supported by substantial

evidence in the record for doing so. The Court has also

concluded there are not any outstanding issues or "significant

factual conflicts in the record." See Treichler, 775 F.3d at

1104.

On this record the Court finds the ALJ would be required to

find on remand that Plaintiff was disabled prior to his 22nd

birthday after crediting as true the opinions of Plaintiff's

18 - OPINION AND ORDER

mental-health providers. As a result, the record reflects

Plaintiff would be unable to perform work on a regular and

continuing basis. See SSR 96-8p ("A 'regular and continuing

basis' means 8 hours a day, for 5 days a week, or an equivalent

work schedule.").

When each of the credit-as-true factors is satisfied, only

in "rare instances" does the record as a whole leave "serious

doubt as to whether the claimant is actually disabled." Revels,

874 F.3d at 668 n.8 (citing Garrison, 759 F.3d at 1021). The

Court does not find this case to be one of those "rare

instances." Thus, the Court concludes "it is clear from the

administrative record that [Plaintiff] is entitled to benefits,"

and, therefore, "no useful purpose" would be served by further

administrative proceedings. See Reddick, 157 F.3d at 729.

CONCLUSION

For these reasons the Court REVERSES the decision of the

Commissioner and REMANDS this matter pursuant to sentence four

of 42 U.S.C. § 405(g) for the immediate calculation and

19 - OPINION AND ORDER

award of benefits.

IT IS SO ORDERED.

DATED this 12th day of November, 2019.

__s/Anna J. Brown _______

ANNA J. BROWN

United States Senior District Judge

20 - OPINION AND ORDER