# Chauvie v. Commissioner Social Security Administration

> District Court, D. Oregon · September 6, 2024

URL: https://www.frixlaw.com/law-library/cases/10666454

## Case

- **Court:** District Court, D. Oregon
- **Decided:** September 6, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- discussing that the inconsistencies in record must Page 5 – OPINION AND ORDER raise “crucial questions” about the extent of claimant’s impairments, and whether all “essential factual issues” have been resolved

## Opinion text

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

MATTHEW JACOB C., Ca se No. 1:23-cv-00906-AR

Plaintiff, OPINION AND
ORDER
v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

Defendant.
_____________________________________

ARMISTEAD, Magistrate Judge

In this is judicial review of the Commissioner’s final decision denying Social Security
benefits, plaintiff Matthew Jacob C. (his last name omitted for privacy) alleges that the
Administrative Law Judge made four errors. The Commissioner concedes only one – that the
ALJ erred by failing to discuss the persuasiveness of Judith Emerson, Ph.D.’s and William
Matthews, M.D.’s opinions – and moves to remand. Therefore, the remaining question for the
court is the appropriate remedy: whether to remand for an award of benefits or for further
proceedings. As discussed below, because plaintiff satisfies the three-part credit as true analysis,

Page 1 – OPINION AND ORDER
and this court has no doubt that plaintiff is disabled, this case is remanded for an immediate
award of benefits.1
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Substantial evidence is
“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quotation and

citation omitted). To determine whether substantial evidence exists, the court must weigh all the
evidence, whether it supports or detracts from the Commissioner’s decision. Garrison v. Colvin,
759 F.3d 995, 1009 (9th Cir. 2014).
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges disability based on post-traumatic stress disorder (PTSD) stemming from
his military service that causes fearfulness of crowds and new people, anxiety attacks, panic, and
hypervigilance. Plaintiff’s impairments interfere with his ability to concentrate, get along with
others (particularly authority figures), complete tasks, and follow instructions. He also reported
headaches, as well as back, hip, and knee pain that interfere with his ability to stand, walk, sit,
climb, bend, squat, and kneel. (Tr. 439-46.) At the hearing, plaintiff also testified that his sleep is
poor, ranging from five to seven hours per night, with nightmares. (Tr. 42, 47.)

1 This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3), and the parties
have consented to jurisdiction by magistrate judge under Federal Rule of Civil Procedure 73 and
28 U.S.C. § 636(c).

Page 2 – OPINION AND ORDER
On September 4, 2014, plaintiff applied for Title II benefits alleging disability beginning
May 31, 2008. The application was denied and not appealed. On July 20, 2016, plaintiff filed a
new Title II application alleging the same period of disability. His new application was denied
initially and on reconsideration. At a January 15, 2019 hearing, ALJ Katherine Weatherly, found
good cause to reopen his first application because the new application was filed within four
years, he submitted new, material evidence relevant to the claim period, and the criteria for the
mental health listings had changed since his first application. (Tr. 12.) The ALJ issued an
unfavorable decision on April 10, 2019. (Tr. 89-103.) The Appeals Council granted plaintiff’s

request for review because the administrative record could not be located, was recreated, and that
outstanding evidence existed that ALJ Weatherly may not have considered; therefore, the action
was remanded. (Tr. 12, 108.) Following a second hearing, ALJ Weatherly issued another
unfavorable decision on June 16, 2022. (Tr. 7.) The Appeals Council denied plaintiff’s request
for review, and this appeal followed.
Plaintiff argues that the ALJ erred in four ways: (1) failing to discuss the persuasiveness
of Drs. Emerson’s and Matthews’ opinions, (2) failing to provide clear and convincing reasons to
discount his subjective symptom testimony, (3) failing to find his migraine headaches severe at
step two; and (4) failing to find that he meets or equals Listing 12.05 at step three. (Pl.’s Opening
Br. at 12-20, ECF No. 14.)
The Commissioner concedes that the ALJ erred in failing to evaluate the persuasiveness
of Drs. Emerson and Matthews only and asks the court to remand the case so that the ALJ may
evaluate those opinions, offer plaintiff an opportunity to submit additional evidence, further
develop the record, and issue a new decision. (Def.’s Br. & Mot. to Remand at 7-8, ECF No. 18.)
The Commissioner does not directly address, however, the other errors identified by plaintiff in

Page 3 – OPINION AND ORDER
his opening brief. Nevertheless, the Commissioner argues that there are numerous conflicts and
ambiguities that must be resolved before a disability determination can be made, and that
remanding for further proceedings is appropriate.
DISCUSSION
When a court determines that the ALJ has committed harmful legal error in denying
benefits, the court may affirm, modify, or reverse the 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

an immediate award of benefits, the court conducts a three step “credit-as-true” analysis.
Garrison, 759 F.3d at 1020. Under that analysis, the court considers whether: (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 claimant
disabled on remand. Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015); Garrison, 759
F.3d at 1020. Even if all three steps are satisfied, the court retains “flexibility” to 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.
Step one of the credit as true test is satisfied because the parties agree that the ALJ
committed harmful legal error by failing to evaluate the persuasiveness of Drs. Emerson’s and
Matthews’ opinions. (Def.’s Br. at 3.) The parties dispute steps two and three.
Turning to step two, the Commissioner argues that there are conflicts in the medical
evidence that require resolution before a disability determination can be made, and that the ALJ
– not this court – must reconcile those conflicts. Where there are varying medical opinions in the

Page 4 – OPINION AND ORDER
record, in the Commissioner’s view, the ALJ must resolve them to determine how they affect a
claimant’s RFC, citing Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015). Specifically, the
Commissioner contends that Dr. Matthews opined that plaintiff was limited to “fairly light work”
that is “mostly sitting” and that he “needs to be able to change position as needed for comfort.”
(Tr. 3023.) That opinion, the Commissioner’s asserts, conflicts with the opinions of agency
physicians Neal Berner, M.D., and Linda Jensen, M.D., who stated that plaintiff could perform a
“range of light work” with some postural and environmental limitations without a sit/stand
limitation (Tr. 121-23, 136-39).

To the extent that Drs. Berner’s and Jensen’s opinions about plaintiff’s sit/stand
restrictions could be viewed as conflicting with Dr. Matthews’ opinion, further proceedings
would serve no useful purpose because the ALJ previously resolved that issue in plaintiff’s favor
by including a 30-minute sit/stand limitation in the RFC. In the decision, the ALJ found Drs.
Berner’s and Jensen’s opinions only partially persuasive, crediting instead plaintiff’s subjective
report of having trouble remaining seated for long periods. Based on that evidence, the ALJ
limited plaintiff to light work with additional restrictions, including that he “be permitted to
stand after 30 minutes of sitting.” (Tr. 18.) When asking the VE hypothetical questions at the
hearing, the ALJ included a 30-minute sit/stand limitation, describing it as “essentially” needing
to “alternate between sitting and standing every 30 minutes while remaining on task.” (Tr. 56.)
Therefore, because the ALJ already credited plaintiff’s testimony over that of Drs. Berner and
Jenson concerning his need for a sit/stand option, no significant factual conflict or “crucial
question” on that issue needs resolving and therefore, further proceedings would serve no useful
purpose here. Treichler, 775 F.3d at 1105 (discussing that the inconsistencies in record must

Page 5 – OPINION AND ORDER
raise “crucial questions” about the extent of claimant’s impairments, and whether all “essential
factual issues” have been resolved).
Next, the Commissioner argues that conflicts and ambiguities concerning the medical
evidence of plaintiff’s mental health requires further proceedings. Dr. Emerson opined that
plaintiff is precluded from employment in the following situations: “issues with authority,
memory issues, feeling enclosed in [an] office, working closely with others, situations where he
feels threatened, explosive anger, anniversary dates.” (Tr. 1946.) In contrast, the Commissioner
contends, agency physicians Bill Hennings, Ph.D., and Dorothy Anderson, Ph.D., opined that

plaintiff is limited to “simple routine tasks with no public contact.” (Tr. 123-24, 138-40.) The
Commissioner suggests that because the agency physician’s medical opinions are inconsistent
with those of Dr. Emerson, the ALJ must reconcile them in further proceedings. The court is
unconvinced.
Like Drs. Berner and Jenson, the ALJ found Drs. Hennings’ and Anderson’s
psychological opinions only partially persuasive. In the decision, the ALJ credited examination
findings from the Veteran’s Administration dated 2010 and 2013 to find that plaintiff’s
headaches and PTSD required including additional limitations in the RFC than those ascribed by
Drs. Hennings and Anderson, and that plaintiff should be limited “to making simple and
decisions, having few changes in the workplace, engaging in no assembly line-paced work,”
having “no contact with the public,” and only “occasional contact with coworkers.” (Tr. 21-22.)
In short, the ALJ determined that the record required more restrictions than those offered by Drs.
Hennings and Anderson. Additionally, the Commissioner offers no specific argument about what
limitations Drs. Hennings and Anderson provided that were credited by the ALJ that amount to

Page 6 – OPINION AND ORDER
significant conflicts with Dr. Emerson’s opinion requiring resolution on remand, and thus further
proceedings are unnecessary.
The court also finds the Commissioner’s reliance on Dominguez unhelpful here. In that
case, the court determined that the ALJ erred by rejecting the opinion of Dr. Bhakta and that
remanding for further proceedings was necessary because Dr. Bhakta’s opinions “conflict in
some respects with his treatment notes,” and were “inconsistent with reports of other
physicians.” Dominguez, 808 F.3d at 409.2 Unlike the numerous inconsistencies, conflicts, and
gaps identified in Dominguez, the Commissioner highlights no such inconsistencies in Drs.

Matthews’ and Emerson’s opinions, except as discussed with respect to the nonexamining
agency physicians above. The Commissioner does not identify evidence in record showing how
Drs. Matthews’ and Emerson’s opinions are unsupported by or are inconsistent with medical
evidence from any physician who examined plaintiff. Because the Commissioner does not
identify specific evidence, the court concludes that any conflicts between Drs. Matthew’s and
Emerson’s opinions and those of the agency physicians are not significant. Remanding for
further proceedings to resolve unidentified conflicts serves no useful purpose.
Turning to step three of the credit as true analysis, even if Drs. Emerson’s and Matthews’
opinions are credited as true, the Commissioner argues that a finding of disability is unwarranted
for three primary reasons: (1) conflicts exist between plaintiff’s subjective symptom testimony
and other record evidence that call plaintiff’s disability into question; (2) inconsistencies between

2 The Ninth Circuit also determined that further proceedings were necessary because
Dominguez’s claims were undercut by the “ALJ’s well-supported credibility concerns,” and a
factual issue about her “disability onset date.” Dominguez, 808 F.3d at 409. As discussed above,
the Commissioner does not defend the ALJ’s subjective symptom finding in the face of
plaintiff’s challenge, and therefore, has waived that argument in this appeal.

Page 7 – OPINION AND ORDER
plaintiff’s testimony and the medical evidence exist that must be resolved by the ALJ; and (3)
there is no testimony from the vocational expert establishing that the step-five occupations
identified cannot accommodate Drs. Emerson’s and Matthews’ opined limitations. The
Commissioner highlights that during a portion of the relevant period, plaintiff attended school
fulltime to become an automotive mechanic, attended a welding program at a community
college, and assists with caring for his children. Contrary to plaintiff’s claimed difficulty with the
ability to follow instructions and complete tasks, the Commissioner notes that other evidence
shows that his mental status examinations were generally normal, with flat affect, irritability, and

one instance of trouble completing serial sevens. Concerning plaintiff’s physical health, the
Commissioner highlights that he generally had normal gait, strength, sensation, decreased range
of motion in his back, positive nerve root irritation while supine, but no nerve root irritation
while seated. Due to those inconsistencies, in the Commissioner’s view, it is not clear that
plaintiff is disabled, and further proceedings are required.
The Commissioner’s argument is frustrating. The Commissioner does not concede that
the ALJ erred in evaluating plaintiff’s subjective symptom testimony, yet it does not defend that
decision in its briefing. Although the Commissioner points out what it characterizes as specific
inconsistencies (Def.’s Br. at 6-7), it nowhere argues in its briefing that the reasoning provided
by the ALJ amounts to a clear and convincing rationale for discounting plaintiff’s testimony. The
Commissioner likewise fails to grapple with plaintiff’s arguments asserting that the ALJ’s
reasoning falls short.
As several district courts within the Ninth Circuit have concluded, the Commissioner’s
failure to respond to a claimant’s arguments constitutes a waiver. See, e.g., Sara H. v. Comm’r
Soc. Sec. Admin., Civ. No. 2:23-cv-649-CL, 2024 WL 3065903, at *5 (D. Or. June 20, 2024)

Page 8 – OPINION AND ORDER
(“In failing to respond to the merits of Plaintiff’s claims, the Commissioner has waived those
issues.”); Jeffrey C. v. Kijakazi, Case No. 3:22-cv-79-SI, 2023 WL 4760603, at *3 (D. Or. July
26, 2023) (“The Government’s failure to defend Plaintiff’s allegations of error, however, is a
concession of those alleged errors.”); Lacey G. v. Comm’r Soc. Sec. Admin., Case No. 3:21-cv-
00882-YY, 2022 WL 17845936, at *2 (D. Or. Dec. 22, 2022) (“Courts have held that the
Commissioner’s failure to respond to a plaintiff's arguments constitutes a concession.”); Krista
B. v. Comm’r, Soc. Sec. Admin., No. 3:20-cv-01822-HL, 2021 WL 5235969, at *4 (D. Or. Nov.
10, 2021) (“This Court declines to independently review and assess Plaintiff’s arguments where

the Commissioner has not done so on review. Nor will this Court remand those issues to the ALJ
for further consideration, thereby forcing Plaintiff to relitigate them.”); Hunt v. Colvin, 954 F.
Supp. 2d 1181, 1196 (W.D. Wash. 2013) (construing the Commissioner’s failure to respond to
argument as concession; stating that the “[c]ourt will not manufacture a defense on the
Commissioner’s behalf where Plaintiff has identified an at least plausible error”).
The court finds that rationale persuasive. Accordingly, the Commissioner’s failure to
respond to plaintiff’s direct challenge to the ALJ’s subjective symptom finding constitutes a
waiver of that argument in this appeal. The court will not undertake an analysis of plaintiff’s
arguments and the ALJ’s provided rationales where the Commissioner has failed to do so.
Consequently, the court will not remand issues that the Commissioner has failed to respond to
and thereby require plaintiff to re-litigate them.3 Krista B., 2021 WL 5235969, at *4.

3 Nevertheless, having examined a few of the alleged inconsistencies identified by the
Commissioner, they do not appear fully supported by substantial evidence. For example,
although plaintiff attended school for auto mechanics and welding, plaintiff also reported
attending only a few classes per week, struggling with memory and concentration, and that he
received accommodations, including extra time to complete assignments, using his notes during
tests, and taking tests in a private room. (Tr. 39, 40-41, 43, 47, 1439.) And contrary to the

Page 9 – OPINION AND ORDER
Therefore, the court concludes that if the improperly discredited evidence were credited
as true, the ALJ would be required to find plaintiff disabled on remand. For example, in her 2010
opinion Dr. Emerson provided that due to plaintiff’s PTSD, traumatic brain injury, and physical
issues, he has “issues with authority, memory issues, feeling enclosed in an office, working
closely with others, situations where he feels threatened, explosive anger” and that plaintiff is
unemployable. (Tr. 568, 1956.) In 2011, Dr. Emerson opined that plaintiff’s symptoms had
worsened with “increased frequency and intensity of nightmares, increase in panic attacks,”

increased anxiety, depression, frustration, and hopelessness due to his PTSD, TBI, and physical
limitations. (Tr. 2895-01.) As argued by plaintiff, at the hearing, the VE testified that if he is
limited to no more than occasional contact with his supervisor, competitive employment would
be eliminated. (Tr. 58.)
Turning to plaintiff’s testimony, at the May 2022 hearing, he testified that he could not
hold down any type of job because the stress and anxiety of being around others would make
him reactive and that he would need to remove himself or have a panic attack. (Tr. 42.) He
further described that that he suffers from severe headaches three times per week that are caused
by his TBI, which require him to lie down for least 45 minutes. (Tr. 53-54.) Upon questioning at
the hearing, the VE testified that being unexpectedly off task for 45 minutes three times per week
would eliminate competitive employment. (Tr. 59-60.)

Commissioner’s suggestion and the ALJ’s findings, being able to participate in raising his
children is not inconsistent with his allegations of PTSD, which causes him to be hypervigilant
and isolate.

Page 10 – OPINION AND ORDER
Accordingly, plaintiff's fully credited symptom testimony and Dr. Emerson’s opinion
demonstrate that the ALJ would be required to find him disabled; thus, all three steps of the
credit as true test are satisfied.
Finally, the court concludes that the record as a whole does not create serious doubt that
plaintiff is, in fact, disabled. The court, therefore, exercises its discretion to remand this case for
an immediate calculation and award of benefits.
CONCLUSION
For the above reasons, the Commissioner’s motion to remand (ECF No. 18) is
GRANTED, the Commissioner's final decision is REVERSED, and this case is REMANDED
for an immediate calculation and award of benefits.
DATED: September 6, 2024.
y { ane
JEQF ARMYSTEAD
United States Magistrate Judge

Page 11 —- OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666454. Public record. Not legal advice.