The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DANNY F.,1 6:21-CV-00355-BR
Plaintiff, OPINION AND ORDER
v.
Commissioner, Social
Security Administration,
Defendant.
SHERWOOD J. REESE
LUKE MOEN-JOHNSON
Drew L. Johnson, P.C.
1700 Valley River Drive
Eugene, OR 97401
(541) 434-6466
Attorneys for Plaintiff
SCOTT ASPHAUG
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.
1 - OPINION AND ORDER
WILLY LE
Acting Regional Chief Counsel
ALEXIS L. TOMA
Social Security Administration
Office of the General Counsel
701 Fifth Avenue
Suite 2900 M/S221A
Seattle, WA 98104-7075
(206) 615-2950
Attorneys for Defendant
BROWN, Judge.
Plaintiff Danny F. seeks judicial review of a final decision
of the Commissioner of the Social Security Administration (SSA)
in which he denied Plaintiff's application for Supplemental
Security Income (SSI) under Title XVI of the Social Security Act.
This matter is before the Court on Plaintiff’s Complaint in
which he seeks review of the Commissioner’s decision and the
Commissioner's Motion to Remand (#13).
Following a review of the record, the Court REVERSES the
Commissioner's decision, GRANTS the Commissioner's Motion to
Remand, and REMANDS this matter pursuant to sentence four of 28
U.S.C. § 405(g) for further administrative proceedings consistent
with this Opinion and Order.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for SSI on November 9, 2018,
alleging a disability onset date of December 31, 2000. Tr. 150-
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56.2 The application was denied initially and on
reconsideration. An Administrative Law Judge (ALJ) held a
hearing on September 3, 2020. Tr. 26-43. At the hearing
Plaintiff amended his alleged onset date to November 9, 2018.
Tr. 30. Plaintiff was represented by an attorney and Plaintiff
and a vocational expert (VE) testified at the hearing.
The ALJ issued a decision on September 24, 2020, in which he
found Plaintiff is not disabled, and, therefore, Plaintiff is
not entitled to benefits. Tr. 13-21. Pursuant to 20 C.F.R.
§ 404.984(d), that decision became the final decision of the
Commissioner on January 15, 2021, when the Appeals Council denied
Plaintiff's request for review. Tr. 1-6. See Sims v. Apfel, 530
U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was born on May 19, 1977. Tr. 150. Plaintiff was
43 years old at the time of the hearing. Plaintiff has at least
a high-school education. Tr. 20. Plaintiff does not have any
past relevant work experience. Tr. 20.
Plaintiff alleges disability due to high blood pressure,
insomnia, psychosis, a learning disability, and post-traumatic
stress disorder (PTSD). Tr. 46.
2 Citations to the official transcript of record filed by
the Commissioner on July 9, 2021, are referred to as "Tr."
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Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence. After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th
Cir. 2012). To meet this burden a claimant must demonstrate the
inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months." 42 U.S.C.
§ 423(d)(1)(A). The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is
“relevant evidence that a reasonable mind might accept as
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adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)). It is more than a mere scintilla [of evidence]
but less than a preponderance. Id. (citing Valentine, 574 F.3d
at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
2009). The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision. Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
I. The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
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2007). See also 20 C.F.R. § 416.920. Each step is potentially
dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity. 20 C.F.R. § 416.920(b). See also Keyser v. Comm’r of
Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments. 20 C.F.R. § 416.920(c).
See also Keyser, 648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity. 20
C.F.R. § 416.920(a)(4)(iii). See also Keyser, 648 F.3d at 724.
The criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s RFC. The claimant’s RFC is an assessment
of the sustained, work-related physical and mental activities the
claimant can still do on a regular and continuing basis despite
limitations. 20 C.F.R. § 416.945(a). See also Social Security
Ruling (SSR) 96-8p. “A 'regular and continuing basis' means 8
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hours a day, for 5 days a week, or an equivalent schedule." SSR
96-8p, at *1. In other words, the Social Security Act does not
require complete incapacity to be disabled. Taylor v. Comm’r of
Soc. Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing
Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work the claimant has done in the past. 20 C.F.R.
§ 416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy. 20 C.F.R. § 416.920(a)(4)(v). See also
Keyser, 648 F.3d at 724. Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform. Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). The
Commissioner may satisfy this burden through the testimony of a
VE or by reference to the Medical-Vocational Guidelines set forth
in the regulations at 20 C.F.R. part 404, subpart P, appendix 2.
If the Commissioner meets this burden, the claimant is not
disabled. 20 C.F.R. § 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
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substantial gainful activity since his November 9, 2018, amended
alleged onset date. Tr. 15.
At Step Two the ALJ found Plaintiff has the severe
impairments of bipolar disorder, PTSD, and “polysubstance abuse.”
Tr. 15.
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. 16. The ALJ found Plaintiff has the RFC to perform “a
full range of work at all exertional levels . . . with the
following . . . limitations: limited to simple, routine, and
repetitive tasks, simple work-related decisions, and occasional
public and coworker contact.” Tr. 17.
At Step Four the ALJ found Plaintiff does not have any past
relevant work. Tr. 19.
At Step Five the ALJ found Plaintiff can perform other work
that exists in the national economy. Tr. 20. Accordingly, the
ALJ concluded Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
partially rejected Plaintiff’s testimony; (2) failed to address
lay-witness statements; and (3) failed to include limitations
assessed by reviewing psychologist Evelyn Adamo, Ph.D., in
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Plaintiff’s RFC.
In Defendant’s Brief and Motion to Remand (#13) Defendant
concedes the ALJ’s partial rejection of Plaintiff’s testimony,
failure to address lay-witness statements, and failure to include
Dr. Adamo’s assessed limitations in Plaintiff’s RFC were “not
supported by substantial evidence.” Def.’s Brief at 2.
Defendant contends the Court should remand this matter for
further administrative proceedings on the ground that the record
does not conclusively establish that Plaintiff is disabled.
Plaintiff, however, asserts this Court should remand the matter
for an immediate award of benefits.
I. Standard
“A district court may ‘revers[e] the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.’” Dominguez v. Colvin, 808 F.3d 403, 407
(9th Cir. 2015)(quoting Treichler v. Comm'r, 775 F.3d 1090, 1099
(9th Cir. 2014)(alteration in Treichler)). “‘[T]he proper
course, except in rare circumstances, [however,] is to remand to
the agency for additional investigation or explanation.’”
Treichler, 775 F.3d at 1099 (quoting Fla. Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985)). The Ninth Circuit “precludes
a district court from remanding a case for an award of benefits
unless certain prerequisites are met.” Dominguez, 808 F.3d at
407 (citing Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir.
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2014)). “The district court must first determine that the ALJ
made a legal error, such as failing to provide legally sufficient
reasons for rejecting evidence.” Id. (citation omitted). “If
the court finds such an error, it must next review the record as
a whole and determine whether it is fully developed, is free from
conflicts and ambiguities, and ‘all essential factual issues have
been resolved.’” Id. (quoting Treichler, 775 F.3d at 1101).
“[T]he district court must consider whether there are
‘inconsistencies between [the claimant's] testimony and the
medical evidence in the record,’ or whether the government has
pointed to evidence in the record ‘that the ALJ overlooked’ and
explained ‘how that evidence casts into serious doubt’ the
claimant's claim to be disabled.” Id. (quoting Burrell, 775 F.3d
at 1141). “Unless the district court concludes that further
administrative proceedings would serve no useful purpose, it may
not remand with a direction to provide benefits.” Id. (citation
omitted).
When the district court determines the record has been fully
developed and there are not any outstanding issues to be
resolved, “the district court must next consider whether the ALJ
would be required to find the claimant disabled on remand if the
improperly discredited evidence were credited as true.”
Dominguez, 808 F.3d at 408 (quotation omitted). “If so, the
district court may exercise its discretion to remand the case for
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an award of benefits.” Id. “A district court is generally not
required to exercise such discretion, however.” Id. (citing
Connett v. Barnhart, 340 F.3d 871, 874–76 (9th Cir. 2003); Harman
v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). District courts
“retain flexibility in determining the appropriate remedy,”
Burrell, 775 F.3d at 1141, and “a reviewing court is not required
to credit claimants' allegations regarding the extent of their
impairments as true merely because the ALJ made a legal error in
discrediting their testimony.” Treichler, 775 F.3d at 1106. “In
particular, [courts] may remand . . . for further proceedings
when the record as a whole creates serious doubt as to whether
the claimant is, in fact, disabled within the meaning of the
Social Security Act.” Burrell, 775 F.3d at 1141. See also
Connett, 340 F.3d at 874–76 (a reviewing court retains discretion
to remand for further proceedings even when the ALJ fails to
“assert specific facts or reasons to reject [the claimant]'s
testimony”).
II. Analysis
As noted, Defendant concedes the ALJ erred when he
improperly partially rejected Plaintiff’s testimony, failed to
address lay-witness testimony, and did not include certain
limitations assessed by Dr. Adamo in Plaintiff’s RFC. Thus, the
threshold requirement, that the ALJ made a legal error in failing
to provide legally sufficient reasons for rejecting evidence, is
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met. The Court, therefore, must next evaluate “whether the
record has been fully developed and further administrative
proceedings would serve no useful purpose.” Dominguez, 808 F.3d
at 408.
Plaintiff asserts that the district court should credit
Plaintiff’s testimony as to the extent of his limitations as true
because the ALJ erred when he partially rejected Plaintiff’s
testimony. According to Plaintiff, if his testimony had been
deemed true, the ALJ would have been required to find him
disabled and, therefore, the Court should remand for payment of
benefits. “But this reverses the required order of analysis
. . . . [T]he district court must ‘assess whether there are
outstanding issues requiring resolution before considering
whether to hold that the claimant's testimony is credible as a
matter of law.’” Dominguez, 808 F.3d at 408 (quoting Treichler,
775 F.3d at 1105)(emphasis in Dominguez)). “If such outstanding
issues do exist, the district court cannot deem the erroneously
disregarded testimony to be true; rather, the court must remand
for further proceedings.” Dominguez, 808 F.3d at 408 (citing
Treichler, 775 F.3d at 1105-06)
Here, there are outstanding issues that preclude the Court
from moving to the next step. Specifically, reviewing
psychologist Dr. Adamo indicated Plaintiff “is able to interact
with others in a workplace briefly” and to have “incidental”
1 2- OPINION AND ORDER
interaction with the public.” Tr. 57. In his assessment of
Plaintiff’s RFC the ALJ limited Plaintiff to “occasional public
and coworker contact.” Tr. 17. Defendant concedes the RFC
“addresses the quantity of social contact, but not the length and
quality of contact,” and, therefore, is in error. Def.’s Brief
at 4. Defendant, however, points out that Dictionary of
Occupational Titles (DOT) provides the jobs identified by the VE
specifically do not require talking and involve “not significant”
contact with others. See DOT No. 915.687-034, available at 1991
WL 687878; DOT No. 381.687-018, available at 1991 WL 673258; and
DOT No. 922.687-058, available at 1991 WL 688132. The VE also
testified at the hearing that those jobs are “non-public.”
Tr. 39-40. In addition, Dr. Adamo opined Plaintiff can cope with
normal workplace changes in a “non-demanding work environment.”
Tr. 57. Dr. Adamo, however, did not define “non-demanding.”
According to Defendant, therefore, even if the ALJ fully credited
Dr. Adamo’s statement, it is not clear on this record that the
ALJ would be required to find Plaintiff disabled.
In addition, Defendant notes there is not any mental opinion
evidence in the record despite the fact that this matter involves
serious psychiatric conditions that Plaintiff asserts limit his
ability to work.
The Court concludes on this record that Defendant has
established there are outstanding issues that must be resolved
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before a determination of disability can be made. Specifically,
further administrative proceedings are necessary for the ALJ to
evaluate whether the jobs identified by the VE would continue to
be viable if Dr. Adamo’s opinion regarding the length and quality
of contact with the public, coworkers, and supervisors was
considered; to call a psychiatric expert to give testimony
regarding Plaintiff’s mental impairments; to reevaluate
Plaintiff’s testimony; to address lay-witness testimony; to
reevaluate Plaintiff’s RFC; and to determine if Plaintiff is
disabled. The Court, therefore, concludes this matter should be
remanded for further administrative proceedings. See Schneider
v. Comm’r, 223 F.3d 968 (9th Cir. 2000).
Accordingly, the Court remands this matter to the
Commissioner for further administrative proceedings as set out in
this Opinion and Order.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner, GRANTS the Commissioner's Motion (#13) to Remand
for further administrative proceedings, and REMANDS this matter
pursuant to sentence four of 28 U.S.C. § 405(g) for further
1 4- OPINION AND ORDER
proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 28th day of June, 2022.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
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