holding that statement that the plaintiff would have “decreased concentration skills” 15 was too vague to be useful in the disability determination
How later courts described this case
- holding that statement that the plaintiff would have “decreased concentration skills” 15 was too vague to be useful in the disability determination
- “‘[O]ne who makes a timely challenge to the 14 constitutional validity of the appointment of an officer who adjudicates his case’ is entitled to 15 relief.”
- noting that to qualify as an officer, rather than an 20 employee, an individual must occupy a continuing position established by law and must exercise 21 significant authority pursuant to the laws of the United States
- upholding ALJ’s rejection of an internally inconsistent medical opinion
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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10 SHANNON W.,
CASE NO. 3:19-CV-6143-DWC
11 Plaintiff,
ORDER REVERSING AND
12 v. REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS
13 COMMISSIONER OF SOCIAL
SECURITY,
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Defendant.
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Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of
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Defendant’s denial of Plaintiff’s application for disability insurance benefits (“DIB”) and
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supplemental security income (“SSI”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil
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Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the
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undersigned Magistrate Judge. See Dkt. 2.
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After considering the record, the Court concludes that the Administrative Law Judge
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(“ALJ”) erred by not evaluating opinions from examining psychiatrist Dr. Salmon. Had the ALJ
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properly considered this opinion, the residual functional capacity (“RFC”) may have included
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additional limitations. The ALJ’s error is therefore harmful, and this matter is reversed and
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1 remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Social Security Commissioner
2 (“Commissioner”) for further proceedings consistent with this Order.
3 FACTUAL AND PROCEDURAL HISTORY
4 On August 9, 2016, Plaintiff filed applications for DIB and SSI respectively, alleging in
5 both applications a disability onset date of January 15, 2015. See Dkt. 8, Administrative Record
6 (“AR”) 13, 257-60, 261-66. Plaintiff amended her disability onset date to October 1, 2015. AR
7 13, 96. Her applications were denied upon initial administrative review and on reconsideration.
8 AR 13, 178-86, 189-95, 196-202. A hearing was held before ALJ Allen Erickson on June 28,
9 2018. AR 32-99. In a decision dated December 5, 2018, the ALJ found that Plaintiff was not
10 disabled. AR 10-26. On September 23, 2019 the Social Security Appeals Council denied
11 Plaintiff’s request for review. AR 1-6. Plaintiff filed a complaint in this Court seeking judicial
12 review of the ALJ’s written decision on December 2, 2019. Dkt. 4.
13 In Plaintiff’s Opening Brief, Plaintiff maintains the ALJ erred by: (1) improperly
14 discounting medical opinion evidence from James Salmon, M.D., Dan M. Neims, Psy.D., Jeremy
15 Senske, Psy.D., Robert E. Sands, M.D., Brett Valette, Ph.D., Jerry Gardner, Ph.D., and Dan
16 Donohue, Ph.D.; (2) not providing germane reasons for discounting testimony from Plaintiff’s
17 mother, Natalie Tajipour Glass, PA-C, and agency personnel who interviewed Plaintiff; (3) not
18 providing clear and convincing reasons for discounting Plaintiff’s testimony; and (4) issuing a
19 decision when he was not properly appointed pursuant to the Appointments Clause of the United
20 States Constitution. Dkt. 12, pp. 3-19.
21 STANDARD OF REVIEW
22 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of
23 social security benefits if the ALJ’s findings are based on legal error or not supported by
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1 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th
2 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
3 DISCUSSION
4 I. Whether the ALJ properly evaluated the medical opinion evidence.
5 Plaintiff contends that the ALJ erred by rejecting opinions from examining sources Dr.
6 Salmon, Dr. Neims, Dr. Senske, Dr. Sands, and Dr. Valette, and non-examining state agency
7 psychologists Dr. Gardner and Dr. Donohue. Dkt. 12, pp. 3-11.
8 In assessing an acceptable medical source, an ALJ must provide “clear and convincing”
9 reasons for rejecting the uncontradicted opinion of either a treating or examining physician. Lester
10 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.
11 1990)); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining
12 physician’s opinion is contradicted, the opinion can be rejected “for specific and legitimate reasons
13 that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews
14 v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.
15 1983)). The ALJ can accomplish this by “setting out a detailed and thorough summary of the facts
16 and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick
17 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th
18 Cir. 1989)).
19 A. Dr. Salmon
20 In 2015, psychiatrist Dr. Salmon, who treated Plaintiff between 2015 and 2016,
21 completed two forms in connection with Plaintiff’s request for leave pursuant to the Family and
22 Medical Leave Act (“FMLA”). AR 429-30, 447-51. In the first form, dated April 1, 2015, Dr.
23 Salmon diagnosed Plaintiff with fibromyalgia, bipolar disorder, attention deficit hyperactivity
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1 disorder (“ADHD”), Crohn’s disease, and chronic kidney infections. AR 447, 450. Dr. Salmon
2 stated that Plaintiff’s work-related limitations were permanent, but said that it was unclear what
3 Plaintiff’s precise limitations were, and added that Plaintiff’s conditions would not impair her
4 ability to perform essential job functions. Id.
5 Dr. Salmon stated that Plaintiff would experience flare-ups of her condition either four
6 days per week or four times per month, and these episodes would last for four days. AR 451. Dr.
7 Salmon opined that Plaintiff would require “constant supervision” when experiencing “ongoing
8 sporadic” panic attacks that would last up to four days. AR 449. Dr. Salmon added that Plaintiff
9 would not be incapacitated for a continuous period of seven days or more due to her
10 impairments, and would not need to work part-time or on a reduced work schedule. AR 451. In a
11 form dated October 7, 2015, Dr. Salmon offered an identical assessment. AR 429-30.
12 Plaintiff contends that the ALJ erred by failing to evaluate this evidence. Dkt. 12, p. 3. It
13 is unnecessary for the ALJ to “discuss all evidence presented”. Vincent on Behalf of Vincent v.
14 Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted) (emphasis in original).
15 However, an ALJ “may not reject ‘significant probative evidence’ without explanation.” Flores
16 v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent v. Heckler, 739 F.2d 1393, 1395
17 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981))).
18 Here, while the ALJ did discuss some of Dr. Salmon’s treatment notes, finding that they
19 were inconsistent with Plaintiff’s allegations concerning her panic attacks, the ALJ did not
20 evaluate Dr. Salmon’s opinions concerning Plaintiff’s functional limitations. AR 21, citing AR
21 404, 406, 409, 418, 420, 423, 427.
22 Defendant concedes that the ALJ erred by not assessing Dr. Salmon’s opinions, but
23 contends that this constitutes harmless error, since Plaintiff has not established “a substantial
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1 likelihood of prejudice’” from the ALJ’s failure to assess this evidence. Dkt. 19, pp. 11-12, citing
2 Molina v. Astrue, 674 F.3d 1104, 1119 (9th Cir. 2012); Ludwig v. Astrue, 681 F.3d 1047, 1054
3 (9th Cir. 2012) (quoting McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir.2011)).
4 First, the Ninth Circuit has held that failing to discuss a medical opinion generally does
5 not constitute harmless error. Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (“the ALJ’s
6 disregard for Dr. Johnson’s medical opinion was not harmless error and Dr. Johnson’s opinion
7 should have been considered”) (citing 20 C.F.R. § 404.1527(c) (noting that this regulation
8 requires the evaluation of “every medical opinion” received)).
9 Second, Plaintiff was prejudiced by the fact that the ALJ did not evaluate Dr. Salmon’s
10 opinions, given that the vocational expert (“VE”) testified that for an individual with limitations
11 potentially consistent with those assessed by Dr. Salmon, such as missing more than one
12 workday per month or requiring two or more additional breaks per workday, there would not be
13 a significant number of jobs available that such an individual could perform at step five of the
14 sequential evaluation. AR 94.
15 B. Dr. Neims
16 Dr. Neims examined Plaintiff on December 6, 2016 for the Washington Department of
17 Social and Health Services (“DSHS”). AR 567-85. Dr. Neims’ evaluation consisted of a clinical
18 interview, a mental status examination, psychological testing, and a review of DSHS case intake
19 notes. Based on this evaluation, Dr. Neims opined that Plaintiff would have a range of moderate
20 and marked work-related mental limitations, and that Plaintiff’s overall degree of impairment
21 was marked. AR 568-69.
22 The ALJ assigned “little weight” to Dr. Neims’ opinion, reasoning that it was
23 inconsistent with: (1) the results of Dr. Neims’ own examination; (2) largely normal mental
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1 status examinations conducted during the period at issue; (3) Plaintiff’s significant improvement
2 with medication; and (4) Plaintiff’s self-reported activities of daily living. AR 23.
3 With respect to the ALJ’s first reason, an internal inconsistency can serve as a specific
4 and legitimate reason for discounting a physician’s opinion. See Morgan v. Comm'r of Soc. Sec.
5 Admin., 169 F.3d 595, 603 (9th Cir. 1999); see also Rollins v. Massanari, 261 F.3d 853, 856 (9th
6 Cir. 2001) (upholding ALJ’s rejection of an internally inconsistent medical opinion).
7 Here, the ALJ found that the marked limitations assessed by Dr. Neims were inconsistent
8 with the normal results of Dr. Neims’ mental status examination. AR 23, 570. The ALJ’s
9 conclusion is broadly supported by the results of this examination, which indicate that while
10 Plaintiff exhibited an anxious and dysphoric mood, moderate lability, and borderline
11 concentration, she otherwise displayed a cooperative attitude, intact appearance, speech, thought
12 processes, orientation, perception, and fund of knowledge. AR 569-70. Dr. Neims stated that he
13 was unable to fully assess Plaintiff’s memory, and expressed some concerns regarding Plaintiff’s
14 insight and judgment, but found that both were within normal limits. AR 570.
15 Accordingly, the ALJ has provided a specific and legitimate reason for discounting Dr.
16 Neims’ opinion. While the ALJ has provided additional specific and legitimate reasons for
17 discounting Dr. Neims’ opinion, the Court need not assess whether these reasons were proper, as
18 any error would be harmless. See Presley-Carrillo v. Berryhill, 692 Fed. Appx. 941, 944-45 (9th
19 Cir. 2017) (citing Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.
20 2008)) (although an ALJ erred on one reason he gave to discount a medical opinion, “this error
21 was harmless because the ALJ gave a reason supported by the record” to discount the opinion).
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1 C. Dr. Senske
2 Dr. Senske examined Plaintiff twice, in March and April 2017. AR 1024-36. Dr. Senske’s
3 examinations consisted of clinical interviews, mental status examinations, and psychological
4 testing. Dr. Senske summarized the results of his tests, but did not provide an opinion concerning
5 Plaintiff’s precise functional limitations. AR 1026-28.
6 The ALJ assigned “little weight” to Dr. Senske’s opinion, reasoning that: (1) Dr. Senske
7 did not provide an opinion concerning Plaintiff’s specific workplace limitations; and (2) to the
8 extent Dr. Senske’s report was meant to provide an assessment of Plaintiff’s mental limitations,
9 it was inconsistent with normal mental status examinations conducted during the period at issue.
10 AR 23-24.
11 A finding that a medical opinion does not contain specific functional limitations, or is
12 otherwise too vague to useful in making a disability determination, can serve a specific and
13 legitimate reason for discounting that opinion. See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th
14 Cir. 1999) (holding that statement that the plaintiff would have “decreased concentration skills”
15 was too vague to be useful in the disability determination).
16 Here, Dr. Senske’s opinion consists of an explanation of his examination findings, which
17 indicate that Plaintiff has “below average” cognitive and intellectual functioning, “struggled a
18 bit” with attention and concentration, endorsed “significant” memory difficulties during a self-
19 evaluation, and appeared to be “struggling significantly” with anxiety, depression, and other
20 emotional factors. AR 1026-28. As such, the ALJ’s finding that Dr. Senske’s opinion does not
21 provide an opinion concerning Plaintiff’s specific workplace limitations is supported by
22 substantial evidence. Further, Plaintiff does not allege that Dr. Senske’s findings would require
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1 work-related functional limitations beyond the significant work-related mental restrictions
2 already contained in Plaintiff’s RFC. AR 18-19.
3 D. Dr. Sands
4 Dr. Sands provided a statement concerning Plaintiff’s mental impairments on May 16,
5 2018. AR 1023. Dr. Sands stated that he examined Plaintiff four times in 2017 and 2018, and
6 diagnosed her with bipolar disorder, ADHD, anxiety disorder, and opiate and benzodiazepine
7 dependence. Id. Dr. Sands opined that Plaintiff was unable to work during the period of
8 treatment, stated that her symptoms were consistent her allegations, and noted that Plaintiff was
9 not a malingerer. Id.
10 The ALJ assigned “little weight” to Dr. Sands’ opinion, reasoning that: (1) it was
11 inconsistent with mental status examinations conducted during the period at issue, including his
12 own; (2) it was inconsistent with Plaintiff’s self-reported activities of daily living; (3) Dr. Sands
13 offers an opinion on a question of disability reserved for the Commissioner of Social Security;
14 and (4) Dr. Sands’ opinion is inconsistent with Dr. Valette’s opinion. AR 23.
15 With respect to the ALJ’s first reason, an inconsistency with the medical record can serve
16 as a specific and legitimate reason for discounting limitations assessed by a physician. See 20
17 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (“Generally, the more consistent a medical opinion is
18 with the record as a whole, the more weight [the Social Security Administration] will give to that
19 medical opinion.”); Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (An ALJ may give
20 less weight to medical opinions that conflict with treatment notes).
21 Here, the ALJ found that Dr. Sands’ opinion was inconsistent with the vast majority of
22 mental status exam and psychiatric findings throughout the record, which show generally normal
23 mental functioning. AR 23. The ALJ’s finding is supported by the record, which indicates that
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1 with the exception of some slight to moderate anxiety, Plaintiff typically exhibited normal
2 mental functioning on examination. AR 23, 492, 496, 499, 502, 505, 509, 521, 524, 531, 547,
3 1195.
4 Accordingly, the ALJ has provided a specific and legitimate reason for discounting Dr.
5 Sands’ opinion.
6 E. Dr. Valette
7 Dr. Valette examined Plaintiff on January 15, 2017. AR 382-87, 607-13, 617-22. Dr.
8 Valette’s evaluation consisted of a clinical interview, a mental status examination, and
9 psychological testing. Based on this evaluation, Dr. Valette opined that Plaintiff could
10 understand, remember, and carry out simple and detailed, but not complex, instructions. AR 387,
11 613, 622. Dr. Valette added that Plaintiff could maintain concentration and attention sufficient to
12 carry out simple, but not detailed and complex, instructions. Id. Dr. Valette further opined that
13 Plaintiff could interact appropriately with supervisors, co-workers, and the public. Id.
14 The ALJ gave “significant weight” to Dr. Valette’s opinion, reasoning that it was based
15 on an in-person examination, and was consistent with the medical record and Plaintiff’s self-
16 reported activities of daily living. AR 21-22.
17 Plaintiff contends that the ALJ mistakenly referred to Dr. Valette’s “January 2016 and
18 January 2017” opinions, when the record only contains three copies of Dr. Valette’s January
19 2017 opinion. Dkt. 12, p. 9. The ALJ’s error is understandable and harmless, since one of the
20 three otherwise identical examinations states that it was rendered in January 2016 and since
21 Plaintiff does not allege any specific prejudice stemming from it. AR 382.
22 Plaintiff contends that Dr. Valette’s findings are consistent with Dr. Senske’s. Dkt. 12, p.
23 9. For the reasons discussed above, the ALJ properly discounted Dr. Senske’s opinion, and the
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1 ALJ’s evaluation of Dr. Valette’s opinion is supported by substantial evidence. See supra
2 Section I.C.
3 F. Dr. Gardner and Dr. Donohue
4 In January and March 2017, non-examining state agency psychologists Dr. Gardner and
5 Dr. Donohue offered opinions concerning Plaintiff’s work-related mental functioning. AR 114-
6 16, 130-33, 152-54, 172-74.
7 Both Dr. Gardner and Dr. Donohue opined that Plaintiff’s memory functioning was
8 sufficient to allow for recall of simple, short instructions and directives; she could complete
9 simple and routine tasks, but that Plaintiff would have difficulty maintaining the level of focus
10 necessary to consistently complete complex tasks. Id. Dr. Gardner and Dr. Donohue further
11 opined that Plaintiff could persist for the completion of tasks within the tolerances of competitive
12 employment, and work not requiring extensive collaboration with peers would be beneficial. Id.
13 Both psychologists opined that Plaintiff would be capable of engaging with supervisors to the
14 extent that would be anticipated in simple and routine tasks, stated that Plaintiff’s ability to adapt
15 to change would be limited by poor response to stress, and opined that Plaintiff would benefit
16 from a stable work environment where changes and expectations are clearly communicated. Id.
17 The ALJ assigned “significant weight” to the opinions of Dr. Gardner and Dr. Donohue,
18 reasoning that they were consistent with the opinion of Dr. Valette, who examined Plaintiff, and
19 with the medical record. AR 22.
20 Plaintiff argues that the opinions of Dr. Gardner and Dr. Donohue are not consistent with
21 the record, and contends that they were unable to review any evidence received after March
22 2017. Dkt. 12, p. 11. In arguing that these opinions are inconsistent with the record, Plaintiff is
23 merely offering an alternative interpretation of the record, and when the evidence is susceptible
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1 to more than one rational interpretation, the Court must uphold the ALJ’s findings if they are
2 supported by inferences reasonably drawn from the record. See Molina v. Astrue, 674 F.3d 1104,
3 1111 (9th Cir. 2012).
4 Plaintiff’s argument that Dr. Gardner and Dr. Donohue were unable to review medical
5 records received after March 2017 is unpersuasive, given that only two medical opinions, those
6 of Dr. Sands and Dr. Senske, which the ALJ properly discounted, were rendered after this date.
7 AR 1023, 1024-36.
8 II. Whether the ALJ was properly appointed pursuant to the Appointments
Clause of the United States Constitution.
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Plaintiff, citing the United States Supreme Court’s decision in Lucia v. Securities and
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Exchange Commission, 138 S. Ct. 2044 (2018), contends that the ALJ who presided over her
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case was an “Officer of the United States” within the meaning of the Constitution’s
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Appointments Clause who was not constitutionally appointed consistent with that provision. Dkt.
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12, pp. 18-19.
14
The Appointments Clause provides the exclusive means of appointing “Officers of the
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United States.” U.S. Const., Art. II, § 2, cl. 2. While principal officers must be nominated by the
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President and confirmed by the Senate, Congress may vest the appointment of “inferior” officers
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in “the President alone,” “the Courts of Law,” or “the Heads of Departments.” Id.
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The Supreme Court has set forth standards for distinguishing inferior officers from
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employees. See Lucia, 138 S. Ct. at 2047 (noting that to qualify as an officer, rather than an
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employee, an individual must occupy a continuing position established by law and must exercise
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significant authority pursuant to the laws of the United States) (internal citations omitted).
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In Lucia, the Supreme Court held that ALJs at the Securities and Exchange Commission,
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who receive career appointments, have the authority to take testimony, conduct trials, rule on the
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1 admissibility of evidence, and enforce compliance with discovery orders qualified as “officers”
2 of the United States. Id. at 2047-48.
3 Defendant does not dispute that the holding in Lucia applies to SSA ALJs, and does not
4 contest that, at the time of Plaintiff’s hearing, the ALJ who presided over Plaintiff’s case had not
5 been properly appointed pursuant to the Appointments Clause. Instead, Defendant argues that
6 Plaintiff forfeited her argument concerning the Appointments Clause by not raising it before the
7 Social Security Administration. Dkt. 19, pp. 14-21.
8 A constitutional challenge under the Appointments Clause is “nonjurisdictional” and a
9 party may forfeit such a challenge by failing to raise it during the administrative process. See
10 Freytag v. Comm’r, 501 U.S. 868, 878 (1991) (noting that Appointments Clause challenges are
11 “nonjurisdictional structural constitutional objections”); Consumer Fin. Prot. Bureau v. Gordon,
12 819 F.3d 1179, 1189–90 (9th Cir. 2016); see also Lucia, 138 S. Ct. at 2048 (quoting Ryder v.
13 United States, 515 U.S. 177, 182 (1995) (“‘[O]ne who makes a timely challenge to the
14 constitutional validity of the appointment of an officer who adjudicates his case’ is entitled to
15 relief.”)
16 To be timely raised, an Appointments Clause challenge must be raised before the
17 administrative agency. See Zumwalt v. Nat’l Steel and Shipbuilding Co., 796 F. App’x 930, 931–
18 32 (9th Cir. 2019) (holding Appointments Clause challenge based on Lucia was forfeited when
19 not raised before the Department of Labor Benefits Review Board); Cooper v. SEC, 788 F.
20 App’x 474, 474–75 (9th Cir. 2019) (citing Lucia, 138 S. Ct. at 2055) (holding Appointments
21 Clause challenge was barred as not timely raised when it was not raised before the SEC);
22 Bussanich v. Ports America, 787 F. App’x 405, 405–06 (9th Cir. 2019) (holding Appointments
23 Clause challenge based on Lucia was forfeited as not timely raised when not brought before the
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1 Department of Labor Benefits Review Board); Kabani & Co., Inc. v. SEC, 733 F. App’x 918,
2 919 (9th Cir. 2018) (holding Appointments Clause claim forfeited when not raised in briefs or
3 before the SEC).
4 Plaintiff did not raise her Appointments Clause challenge before the Social Security
5 Administration despite being represented by counsel. AR 32-99, 254-56. Plaintiff’s hearing was
6 held on June 28, 2018. AR 32-99. The Supreme Court issued its ruling in Lucia on June 21,
7 2018. See Lucia, 138 S. Ct. at 2044. The Commissioner ratified the appointment of SSA ALJs
8 and approved their appointment as her own on July 16, 2018. See Social Security Ruling
9 (“SSR”) 19–1p, 84 Fed. Reg. 9582-02, 2019 WL 1202036 (Mar. 15, 2019).
10 The ALJ issued his unfavorable decision on December 5, 2018. AR 10-26. The Appeals
11 Council issued its decision denying review on September 23, 2019. AR 1-6. As such, Plaintiff
12 could have challenged the ALJ’s appointment at any time after the Lucia decision or raised the
13 issue when requesting review by the Appeals Council. By waiting until after receiving an
14 unfavorable result to raise the issue with this Court, Plaintiff has forfeited her Appointments
15 Clause challenge.
16 III. Other Issues.
17 Plaintiff contends that the ALJ erred in evaluating her symptom testimony and statements
18 from Plaintiff’s mother, Natalie Tajipour Glass, PA-C, and agency personnel who interviewed
19 Plaintiff. Dkt. 12, pp. 12-17. Because Plaintiff will be able to present new evidence and
20 testimony on remand, and because the ALJ’s reconsideration of the record may impact her
21 assessment of this evidence, the ALJ shall instead reconsider this evidence as necessary on
22 remand.
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1 IV. Remedy.
2 The Court may remand a case “either for additional evidence and findings or to award
3 benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1992). Generally, when the Court
4 reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the
5 agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th
6 Cir. 2004) (citations omitted). However, the Ninth Circuit created a “test for determining when
7 evidence should be credited and an immediate award of benefits directed[.]” Harman v. Apfel,
8 211 F.3d 1172, 1178 (9th Cir. 2000). Specifically, benefits should be awarded where:
9 (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the
claimant’s] evidence, (2) there are no outstanding issues that must be resolved
10 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
11 evidence credited.
12 Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.
13 2002). The Court is mindful that simply providing another opportunity to assess improperly
14 evaluated evidence, allowing the ALJ to have a “mulligan”, does not qualify as a remand for a
15 “useful purpose” under the first part of the credit as true analysis. Garrison, 759 F.3d at 1021-22,
16 citing Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“Allowing the Commissioner to
17 decide the issue again would create an unfair ‘heads we win; tails, let’s play again’ system of
18 disability benefits adjudication.”).
19 Here, the Court has determined that the ALJ must evaluate Dr. Salmon’s opinions.
20 Therefore, there are outstanding issues which must be resolved and remand for further
21 administrative proceedings is appropriate.
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1 CONCLUSION
2 Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded
3 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and
4 this matter is remanded for further administrative proceedings in accordance with the findings
5 contained herein. The Clerk is directed to enter judgment for Plaintiff and close the case.
6 Dated this 7th day of October, 2020.
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A
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David W. Christel
United States Magistrate Judge
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