reversing district court’s remand for immediate award of benefits and holding that “[a] claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may be”
How later courts described this case
- reversing district court’s remand for immediate award of benefits and holding that “[a] claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may be”
- “Where, as in this case, an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION
AUSTIN F.,1
Plaintiff,
Case. No. 6:20-cv-00110-YY
v.
OPINION AND ORDER
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
Defendant.
YOU, Magistrate Judge:
Plaintiff Austin F. seeks judicial review of the final decision by the Social Security
Commissioner (“Commissioner”) denying his application for Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act (“SSA”), 42 U.S.C. §§ 401-33, and
Supplemental Security Income (“SSI”) disability benefits under Title XVI of the SSA, 42
U.S.C. §§ 1381-1383f. This court has jurisdiction to review the Commissioner’s decision
pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3). The Commissioner concedes error and has
filed a Motion to Remand (ECF #19); however, the parties disagree whether the matter
should be remanded for further proceedings or an immediate award of benefits.
1 In the interest of privacy, the court uses only plaintiff’s first name and the first initial of
his last name.
For the reasons set forth below, the Commissioner’s Motion to Remand (ECF #19) is
GRANTED, and the Commissioner’s decision is REVERSED and REMANDED for further
proceedings consistent with this opinion.
I. Relevant Law Regarding Remand
When a court determines the Commissioner erred in some respect in making a
decision to deny benefits, the court may affirm, modify, or reverse the Commissioner’s
decision “with or without remanding the cause for a rehearing.” Treichler v. Comm’r Soc.
Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting 42 U.S.C. § 405(g)). In
determining whether to remand for further proceedings or immediate payment of benefits,
the Ninth Circuit employs the “credit-as-true” standard when the following requisites are
met: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, (2)
the record has been fully developed and further proceedings would serve no useful purpose,
and (3) if the improperly discredited evidence were credited as true, the ALJ would be
required to find the plaintiff disabled on remand. Garrison, 759 F.3d at 1020. Even if all of
the requisites are met, however, the court may still remand for further proceedings “when
the record as a whole creates serious doubt as to whether the claimant is, in fact,
disabled[.]” Id. at 1021.
II. Analysis
Plaintiff alleges the ALJ erred in (1) rejecting the medical opinion of Nancy Kemp,
Ph.D., and examining medical opinion of Scott Alvord, Psy.D.; (2) rejecting plaintiff’s subjective
symptom testimony; and (3) rejecting competent lay witness statements from plaintiff’s mother
and former employer. Pl. Br. 5, ECF #18. The Commissioner “agrees with Plaintiff’s assertion
that there was error,” but instead of awarding benefits, argues the matter should be remanded for
the ALJ to:
o Further develop the record and offer the claimant a new hearing;
o Further evaluate the medical opinions;
o Further evaluate plaintiff’s subjective symptom report and the lay witness
statement of the Plaintiff’s mother;
o Evaluate the work activity questionnaire;2
o Continue through the sequential evaluation process;
o Obtain additional vocational expert testimony, if warranted; and
o Issue a new decision.
Def. Br. 2-3, ECF #19.
Although the Commissioner does not describe what he perceives the exact error to be,
from the remand instructions he is requesting, it appears the Commissioner is conceding the ALJ
failed to provide legally sufficient reasons for rejecting the medical opinions, plaintiff’s
subjective symptom report, and the lay testimony by plaintiff’s mother and former employer.
Thus, the first prong of the Garrison test is satisfied.
However, with respect to the other Garrison factors, the Commissioner argues there are
“unresolved issues that must be evaluated” and “the record, including treatment records
showing medications effectively controlled his mental symptoms and mental status
examinations with mostly normal findings, cast doubt on his claim of disability.” Def. Br.
2, 4, ECF #19. The Commissioner points to the fact plaintiff returned “back to his baseline”
several days after he was hospitalized for a manic episode, which occurred during a period
2 The work activity questionnaire was completed by plaintiff’s former employer. See Tr.
228-30.
when he was not taking his mood stabilizer. Def. Br. 4-5, ECF #19 (citing Tr. 806). The
Commissioner points to other instances where the medical reports indicate medication
compliance in conjunction with, inter alia, “normal mood,” self-reports of doing “all right,”
and “stable” bipolar symptoms. Id. at 5 (citing, e.g., Tr. 543, 544, 551, 606, 612, 675, 677,
679, 741, 742, 744-46). The Commissioner also notes plaintiff had “essentially
unremarkable mental status examinations throughout the relevant period,” and cites
treatment notes indicating plaintiff was “negative for mania or psychosis” and had “normal”
mental processes and thoughts. Id. at 5-6 (citing, e.g., Tr. 531, 537, 543, 549, 573, 580,
589, 594, 595, 597, 598, 600, 601, 603, 606, 601, 604, 607, 613, 617. 652, 653, 654, 655,
675-77, 679, 680, 681, 682, 683, 741-47). Additionally, the Commissioner cites to portions
of the record where plaintiff engaged in activities inconsistent with disabling mental
symptoms, including working as a part-time day laborer for a landscaping business,
“keep[ing] himself busy by rebuilding his motorcycle,” and helping his parents with their
rental property. Id. at 6 (citing Tr. 216, 532, 543, 563, 594, 600, 603, 606, 681, 683).
Because the Commissioner has identified areas where further development of the record
would serve a useful purpose, the second step in the credit-as-true analysis is not satisfied.
See Treichler, 775 F.3d at 1105 (“Where, as in this case, an ALJ makes a legal error, but the
record is uncertain and ambiguous, the proper approach is to remand the case to the
agency.”). It is unnecessary to reach the issue of whether to credit any medical opinion as
true. See Brown-Hunter v. Colvin, 806 F.3d 487, 496 (9th Cir. 2015); accord Kaytlin B. v.
Comm’r Soc. Sec. Admin., No. 6:19-CV-00727-MK, 2020 WL 5803937, at *8 (D. Or. Sept.
29, 2020).
Plaintiff contends that if Dr. Kemp’s and Dr. Alvord’s opinions were credited as
true, he would be entitled to benefits based on the VE’s testimony that, inter alia, missing
four workdays per month directs a finding of disability. Reply 4, ECF #20 (citing Tr. 61,
820, 828). However, only when all three prongs are of the credit-as-true analysis are met
may the court exercise its discretion to award benefits. Treichler, 775 F.3d at 1101-02.
This is to ensure that before a court remands for benefits, it has determined “not the
slightest uncertainty as to the outcome of the proceeding” remains. Id. at 1100-01; see also
Strauss v. Comm’r Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011) (reversing district
court’s remand for immediate award of benefits and holding that “[a] claimant is not entitled
to benefits under the statute unless the claimant is, in fact, disabled, no matter how
egregious the ALJ’s errors may be”). As discussed above, the second prong has not been
satisfied. And, regardless, even if all three prongs of the credit-as-true analysis are met, the
court may still remand for further proceedings “when the record as a whole creates serious
doubt as to whether the claimant is, in fact, disabled[.]” Garrison, 759 F.3d at 1021. Here,
such doubts exist for the reasons related to the second prong discussed above.
On remand, the ALJ must (1) accept the opinions of Dr. Kemp and Dr. Alvord or
provide legally sufficient reasons for rejecting them; (2) accept plaintiff’s testimony or
provide legally sufficient reasons for rejecting it; (3) accept the lay witness statements from
plaintiff’s mother and former employer or supply legally sufficient reasons for rejecting
them; and (4) conduct any additional proceedings as indicated by the results of the
foregoing instructions.
//
//
ORDER
The Commissioner’s Motion to Remand (ECF #19) is GRANTED, and the
Commissioner’s decision is REVERSED and REMANDED for further proceedings
consistent with this opinion.
DATED January 19, 2021.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge