Kimball

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CRYSTAL K.,1 Case No. 6:25-cv-00169-SB

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

BECKERMAN, U.S. Magistrate Judge.

Plaintiff Crystal K. filed this appeal challenging the Commissioner of Social Security’s

(“Commissioner”) denial of her application for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act. For

the reasons explained below, the Court reverses the Commissioner’s decision and remands for

the calculation and payment of benefits.

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1 In the interest of privacy, this opinion uses only the first name and the initial of the last

name of the non-governmental party in this case.

STANDARD OF REVIEW

“As with other agency decisions, federal court review of social security determinations is

limited.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). “For

highly fact-intensive individualized determinations like a claimant’s entitlement to disability

benefits, Congress places a premium upon agency expertise, and, for the sake of uniformity, it is

usually better to minimize the opportunity for reviewing courts to substitute their discretion for

that of the agency.” Id. (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 621 (1966)).

Adhering to this principle, courts “follow three important rules” in reviewing social security

determinations. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015).

First, courts “leave it to the [agency] to determine credibility, resolve conflicts in the

testimony, and resolve ambiguities in the record.” Id. (quoting Treichler, 775 F.3d at 1098).

Second, courts “will ‘disturb the Commissioner’s decision to deny benefits only if it is not

supported by substantial evidence or is based on legal error.’” Id. (quoting Treichler, 775 F.3d at

1098). Third, if the agency “‘commits legal error, [courts] uphold the decision where that error is

harmless,’ meaning that ‘it is inconsequential to the ultimate nondisability determination,’ or

that, despite the legal error, ‘the agency’s path may reasonably be discerned, even if the agency

explains its decision with less than ideal clarity.’” Id. (quoting Treichler, 775 F.3d at 1098); see

also Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) (“And even where this modest

[substantial evidence] burden is not met, [courts] will not reverse an [agency] decision where the

error was harmless.” (citing Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012), superseded

on other grounds by regulation as recognized in Farlow v. Kijakazi, 53 F.4th 485, 487 (9th Cir.

2022))).

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BACKGROUND

I. PLAINTIFF’S APPLICATIONS

Plaintiff filed DIB2 and SSI3 applications on July 6, 2022, alleging a disability onset date

of November 14, 2019 which she later amended to June 7, 2022. (Tr. 20.) The Commissioner

denied Plaintiff’s applications initially and upon reconsideration. (Id.) Plaintiff and an impartial

vocational expert (“VE”) appeared and testified at a hearing before an administrative law judge

(“ALJ”) on September 5, 2024. (Id. at 20, 38-53.) On September 24, 2024, the ALJ issued a

written decision denying Plaintiff’s applications. (Id. at 20-31.) On December 6, 2024, the

Appeals Council denied Plaintiff’s request for review, making the ALJ’s written decision the

final decision of the Commissioner. (Id. at 1-6.) Plaintiff now seeks judicial review of that

decision.

II. THE SEQUENTIAL PROCESS

A claimant is considered disabled if he or he is unable to “engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment

2 To be eligible for DIB, “a worker must have earned a sufficient number of [quarters of

coverage] within a rolling forty quarter period.” Herbert v. Astrue, No. 1:07-cv-01016 TAG,

2008 WL 4490024, at *4 (E.D. Cal. Sept. 30, 2008) (citation omitted). Workers accumulate

quarters of coverage based on their earnings. Id. Typically, “the claimant must have a minimum

of twenty quarters of coverage [during the rolling forty-quarter period to maintain insured

status]. . . . The termination of a claimant’s insured status is frequently referred to as the ‘date

last insured’ or ‘DLI.’” Id. (citation omitted). Thus, Plaintiff’s date last insured (“DLI”) of

December 31, 2024 (Tr. 20) reflects the date on which her insured status terminated based on the

previous accumulation of quarters of coverage. If Plaintiff established that she was disabled on

or before December 31, 2024, she is entitled to DIB. See Truelsen v. Comm’r of Soc. Sec., No.

2:15-cv-2386-KJN, 2016 WL 4494471, at *1 (E.D. Cal. Aug. 26, 2016) (“To be entitled to DIB,

plaintiff must establish that he was disabled . . . on or before his date last insured.” (citing

Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998))).

3 “[T]he earliest an SSI claimant can obtain benefits is the month after which [s]he filed

h[er] application[.]” Schiller v. Colvin, No. 12-771-AA, 2013 WL 3874044, at *1 n.1 (D. Or.

July 23, 2013) (citation omitted).

which . . . has lasted or can be expected to last for a continuous period of not less than [twelve]

months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential

process for determining whether an applicant is disabled within the meaning of the Social

Security Act.” Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011) (citation

omitted). Those five steps are: (1) whether the claimant is engaged in substantial gainful activity;

(2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a

listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether

the claimant can perform other work that exists in significant numbers in the national economy.

Id. at 724-25.

The claimant bears the burden of proof for the first four steps. See Bustamante v.

Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any

of those steps, the claimant is not disabled. See id. at 954. The Commissioner bears the burden of

proof at step five, where the Commissioner must show the claimant can perform other work that

exists in significant numbers in the national economy, “taking into consideration the claimant’s

residual functional capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d

1094, 1100 (9th Cir. 1999) (citation omitted). If the Commissioner fails to meet this burden, the

claimant is disabled. See Bustamante, 262 F.3d at 954.

III. THE ALJ’S DECISION

The ALJ applied the sequential evaluation process to determine if Plaintiff was disabled.

(Tr. 20-31.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

activity since June 7, 2022, the amended alleged onset date. (Id. at 22.) At step two, the ALJ

determined that Plaintiff suffered from the following severe impairments: “obesity; chronic

obstructive pulmonary disease; asthma; mild neurocognitive disorder; paranoid schizophrenia;

schizoaffective disorder, bipolar type; and posttraumatic stress disorder.” (Id.)

At step three, the ALJ determined that Plaintiff did not have an impairment that meets or

medically equals a listed impairment. (Id. at 23.) The ALJ found that Plaintiff had the residual

function capacity (“RFC”) to perform “light work . . . except she must avoid all exposure to

pulmonary irritants.” (Id. at 24.) “Additionally, she can understand, remember, and carry out

simple instructions, can perform tasks that do not involve a specific production rate pace such as

assembly-line work or an hourly production quota, can make simple work-related decisions, can

adjust to occasional changes in the work setting, and can have occasional interaction with the

public, co-workers, and supervisors.” (Id.)

At step four, the ALJ determined that Plaintiff was unable to perform any past relevant

work. (Id. at 29.) At step five, the ALJ found that there are jobs that exist in significant numbers

in the national economy that Plaintiff can perform, including marker, office helper, and

electronics worker. (Id. at 30.) Accordingly, the ALJ concluded that Plaintiff was not disabled as

defined in the Social Security Act from June 7, 2022 through the date of decision. (Id.)

DISCUSSION

The parties agree that the Court should reverse and remand the ALJ’s decision but

disagree about the scope of the remand. (See Def.’s Br. at 2-5, ECF No. 17; Pl.’s Reply at 1-20,

ECF No. 21.) Plaintiff argues that the Court should remand for the payment of benefits because

the “credit-as-true” rule is satisfied here. (Pl.’s Reply at 1-20.) The Commissioner argues that

“the record does not conclusively establish that Plaintiff is disabled” and remand is necessary to

allow the agency to “resolve factual conflicts and evaluate the most Plaintiff can do despite her

impairments.” (Def.’s Br. at 2-5.)

I. REMAND

A. Applicable Law

“Generally when a court of appeals reverses an administrative determination, ‘the proper

course, except in rare circumstances, is to remand to the agency for additional investigation or

explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). In

several cases, however, the Ninth Circuit has “stated or implied that it would be an abuse of

discretion for a district court not to remand for an award of benefits when [the three-part credit-

as-true standard is] met.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (citations

omitted).

The credit-as-true standard is satisfied if: “(1) the record has been fully developed and

further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to

provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical

opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be

required to find the claimant disabled on remand.” Id. (citations omitted).

Even when the credit- as-true standard is met, the court retains the “flexibility to 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.” Id. at 1021.

B. Analysis

Plaintiff argued in her opening and reply briefs that the Court should apply the “credit-as-

true” rule and remand for an immediate award of benefits. (See Pl.’s Br. at 38-39, ECF No. 9;

Pl.’s Reply at 1-20.) The Commissioner did not provide any meaningful analysis of the “credit-

as-true” rule in his response, but argues generally that inconsistencies between Plaintiff’s

testimony and the medical evidence “mean that Plaintiff’s case does not present the ‘rare and

prophylactic exception’ in which an immediate award of benefits is appropriate.” (Def.’s Br. at 5,

quoting Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2018).) The Court finds that remand for

an award of benefits is appropriate here.

First, the parties agree that the ALJ committed harmful error in evaluating the medical

opinion evidence. (See Pl.’s Br. at 2-23; Def.’s Br. at 2; Pl.’s Reply at 9-12.) In light of the

parties’ stipulation, the Court finds that the ALJ committed harmful error in evaluating the

medical opinion evidence.

Second, with respect to crediting any improperly discredited evidence as true, Plaintiff

also argued in her opening brief that the ALJ erred in his evaluation of Plaintiff’s symptom

testimony. (See Pl.’s Br. at 23-33.) The Commissioner did not address Plaintiff’s arguments

about her symptom testimony in the response. (See generally Def.’s Br.) The Court finds that the

Commissioner has waived any challenge to Plaintiff’s remaining assignments of error.4 See

Jenna R. v. Comm’r Soc. Sec. Admin., No. 6:24-cv-01221-AR, 2025 WL 1144751, at *3-4 (D.

Or. Apr. 18, 2025) (“As this court previously has concluded, the Commissioner’s failure to

4 To hold otherwise would allow the Commissioner to agree to remands without ever

addressing the merits of Plaintiff’s arguments, which further exacerbates the high cost and slow

pace of appealing a denial of disability benefits. In this appeal, Plaintiff filed a thirty-nine page

brief and the Commissioner filed a short response requesting remand for a complete do-over

without any meaningful analysis. Ninth Circuit guidance and the objectives of the credit-as-true

rule recognize that remanding to allow the Commissioner a do-over does not serve a “useful

purpose” under the credit-as-true analysis. See Garrison, 759 F.3d at 1021; see also Leitz v.

Kijakazi, No. 22-35356, 2023 WL 4342114, at *3 (9th Cir. July 5, 2023) (“[R]emand would

serve no legitimate purpose. . . . [P]ermitting the Government to introduce additional evidence on

remand would provide the Government with an unfair second opportunity to present its case.”

(citing Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004))); Benecke, 379 F.3d at 595

(“Allowing the Commissioner to decide the issue again would create an unfair ‘heads we win;

tails, let’s play again’ system of disability benefits adjudication.”) (citation omitted); Moisa, 367

F.3d at 887 (“The Commissioner, having lost this appeal, should not have another opportunity to

show that [the claimant] is not credible any more than [the claimant], had he lost, should have an

opportunity for remand and further proceedings to establish his credibility”).

respond to a claimant’s arguments constitutes a waiver.” (first citing Matthew Jacob C. v.

Comm’r Soc. Sec. Admin., No. 1:23-cv-00906-AR, 2024 WL 4100551, at *4 (D. Or. Sept. 6,

2024); then citing Jeffrey C. v. Kijakazi, No. 3:22-cv-79-SI, 2023 WL 4760603, at *3 (D. Or.

July 26, 2023); then citing Lacey G. v. Comm’r Soc. Sec. Admin., No. 3:21-cv-00882-YY, 2022

WL 17845936, at *2 (D. Or. Dec. 22, 2022); then citing Krista B. v. Comm’r, Soc. Sec. Admin.,

No. 3:20-cv-01822-HL, 2021 WL 5235969, at *4 (D. Or. Nov. 10, 2021); and then citing Hunt v.

Colvin, 954 F. Supp. 2d 1181, 1196 (W.D. Wash. 2013)); see also id. at *4 (“By refusing to

undertake an analysis of plaintiff’s arguments, and agreeing only to remand for additional

proceedings, the Commissioner seeks a mulligan or ‘do over.’ Accordingly, the Commissioner’s

failure to respond to plaintiff’s direct challenge to the ALJ’s subjective symptom findings,

medical opinion evidence, lay witness testimony, and vocational expert testimony, constitutes a

waiver of those arguments for this judicial review. 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, which would cause plaintiff to have to re-litigate them.” (citing Krista B., 2021 WL 5235969,

at *4)).

Plaintiff persuasively demonstrates that if any of the improperly discounted medical

opinions are credited as true, the VE’s hearing testimony establishes that Plaintiff is disabled.

(See Pl.’s Br. at 9-12, citing the VE’s testimony that someone with the limitations assessed by

Dr. Scott Alvord, Dr. Anne Linton, Counselor Shannon Hodgen, or Psychiatric Nurse

Practitioner Roberta Mowdy would be unable to sustain full-time employment; see also Tr. 51-

52, the VE testified that someone with Plaintiff’s limitations would “not be able to perform

competitive work” and would exceed the maximum absenteeism tolerated by employers.) The

Commissioner did not address whether crediting the discounted medical opinions as true would

require a finding of disability. (See generally Def.’s Br.) The Court finds that if the medical

opinions are credited as true, the ALJ would be required to find Plaintiff disabled on remand. See

Garrison, 759 F.3d at 1021 n.28 (explaining that “there is no need to develop the record or

convene further administrative proceedings” where “the VE answered a question describing a

hypothetical person with the RFC that the claimant would possess were the relevant opinion or

testimony taken as true”); see also Gamal E. v. O’Malley, No. 24-cv-07368-KAW, 2026 WL

1213834, at *7 (N.D. Cal. Mar. 31, 2026) (remanding for an award of benefits where “if credited

as true, Plaintiff’s evidence [of marked limitations] establishes that the ALJ would have been

required to find Plaintiff disabled on remand”).

Third, the Court finds that the record has been fully developed, including treatment notes

spanning the relevant time period, opinions from medical sources, and Plaintiff’s testimony

about the severity and effects of her impairments. Further, the Commissioner has not identified

any specific ambiguities or factual conflicts in the record. See Treichler, 775 F.3d at 1104

(explaining that to determine whether the record is fully developed, courts look to whether there

are “significant factual conflicts in the record”). Accordingly, the Court finds that further

proceedings would serve no useful purpose. See Garrison, 759 F.3d at 1021 (“[O]ur precedent

and the objectives of the credit-as-true rule foreclose the argument that a remand for the purpose

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.”) (citations omitted).

Finally, the Commissioner does not assert that there is any “serious doubt” that Plaintiff

is disabled, nor offer any evidence to support any such doubt (see Def.’s Br. at 4-5), and the

Court does not have serious doubt about whether Plaintiff is disabled. See Monica S. v.

Bisignano, No. 1:24-cv-03090-LRS, 2026 WL 837091, at *7 (E.D. Wash. Mar. 26, 2026)

(“Accordingly, after crediting the improperly rejected opinions, the Court concludes remand for

an award of benefits is the appropriate remedy as there is no ‘serious doubt’ as to whether

Plaintiff is in fact disabled.”); Vanessa W. v. SSA Comm’r, No. 24-cv-08003-TSH, 2026 WL

280481, at *12 (N.D. Cal. Feb. 3, 2026) (“Moreover, there is no ‘serious doubt’ based on ‘an

evaluation of the record as a whole’ that Plaintiff is, in fact, disabled. Plaintiff has severe mental

health conditions that result in marked mental impairments, impaired cognitive functioning, an

extensive history of physical, emotional, and sexual trauma, and almost no job history at [thirty-

eight] years old.” (citing Garrison, 759 F.3d at 1021)).

For these reasons, the Court exercises its discretion to remand this case for an award of

benefits. See Leitz, 2023 WL 4342114, at *3 (“The Government argues that we should remand

for further proceedings rather than remand for an award of benefits. However, remand would

serve no legitimate purpose . . . and permitting the Government to introduce additional evidence

on remand would provide the Government with an unfair second opportunity to present its case.

We therefore remand to the district court with instructions to remand to the agency for an award

of benefits.”) (citations omitted); Hoffschneider v. Kijakazi, No. 18-15504, 2022 WL 3229989, at

*3 (9th Cir. Aug. 10, 2022) (“Once the improperly discredited evidence is credited as true, the

vocational expert’s testimony forecloses a determination that [the claimant] can work. Because

no ‘serious doubt’ remains that [the claimant] is disabled, there is nothing left to decide. We

therefore reverse and remand with instructions to remand to the Commissioner for a calculation

and award of benefits.”) (citations omitted); cf. Michael P. v. Berryhill, No. 3:18-cv-00902-YY,

2019 WL 3210096, at *3 (D. Or. June 27, 2019) (“Plaintiff . . . has spent the past eight years

locked in a perpetual cycle of ALJ errors and remands. The caselaw in this circuit does not

support remanding this case to give the Commissioner another opportunity to meet its burden.”

(first citing Benecke, 379 F.3d at 595; and then citing Rustamova v. Colvin, 111 F. Supp. 3d

1156, 1165 (D. Or. 2015))).

CONCLUSION

Based on the foregoing reasons, the Court REVERSES the Commissioner’s decision and

remands this case for the calculation and award of benefits.

IT IS SO ORDERED.

DATED this 4th day of June, 2026.

Steed, (fiecermer

HON. STACIE F. BECKERMAN

United States Magistrate Judge

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