United States District Court, W.D. Washington, Seattle
ORDER REVERSING THE COMMISSIONER'S FINAL DECISION
AND REMANDING FOR AN AWARD OF BENEFITS
J. Pechman United States District Judge.
contends the ALJ erred by denying her application for
Disability Insurance Benefits and seeks remand for an award
of benefits. Dkt. 11, 16. The Commissioner concedes that the
ALJ erred, but seeks remand for further administrative
proceedings. Dkt. 15. As discussed below, the Court
REVERSES the Commissioner's final
decision and REMANDS the matter for an award
of benefits under sentence four of 42 U.S.C. § 405(g).
is currently 53 years old, has at least a high school
education, and has worked as a truck driver and a waitress.
Dkt. 7, Admin. Record (AR) 26. Plaintiff applied for benefits
in June 2013, alleging disability as of March 2013. AR 104.
Plaintiff's application was denied initially, on
reconsideration, and by a November 2014 ALJ decision. AR 103,
116, 133-45. Plaintiff appealed the ALJ's decision and
filed a new application for benefits. AR 246, 153.
Plaintiff's new application was granted, with an
established onset date of December 31, 2015. AR 181. However,
the Appeals Council vacated both the favorable decision and
the ALJ's decision, consolidated both claims, and
remanded them to the ALJ. AR 185-86. After the ALJ conducted
a hearing in May 2017, the ALJ issued a decision finding
Plaintiff had the severe impairments of diabetic peripheral
neuropathy, degenerative disc disease, affective disorder,
and obesity, but was not disabled. AR 37, 15-28.
parties agree that the ALJ erred by rejecting the medical
opinions of Plaintiff's treating physician Ellen Kim,
M.D., and nonexamining physician Drew Stevick, M.D., and by
rejecting Plaintiff's testimony. See Dkt. 11,
15. Plaintiff requests remand for an award of benefits.
general, the Court has “discretion to remand for
further proceedings or to award benefits.” Marcia
v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). The
Court may remand for further proceedings if enhancement of
the record would be useful. See Harman v. Apfel, 211
F.3d 1172, 1178 (9th Cir. 2000). The Court may remand for
benefits where (1) the record is fully developed and further
administrative proceedings would serve no useful purpose; (2)
the ALJ fails 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. Garrison v. Colvin, 759
F.3d 995, 1020 (9th Cir. 2014). The Court has flexibility,
however, “when the record as a whole creates serious
doubt as to whether the claimant is, in fact, disabled within
the meaning of the Social
The Record is Fully Developed
Commissioner argues that the record is not fully developed
because of an “unresolved evidentiary issue”
involving the December 2015 disability finding and because
Plaintiff argued in her opening brief that the ALJ erred by
failing to request certain records and to consider chronic
pain syndrome. Dkt. 15 at 3-5.
“unresolved evidentiary issue” is based on the
Commissioner's misapprehension of the record. The
Commissioner erroneously asserts that state agency physician
Dr. Stevick opined Plaintiff could perform “light
work.” Dkt. 15 at 4. In fact, Dr. Stevick's
opinions states that Plaintiff could perform
“SEDENTARY” work. AR 180. This was based on his
opinion that Plaintiff could stand and/or walk for only
“4 hours” total per day, while “the full
range of light work requires standing or walking, off and on,
for a total of approximately 6 hours of an 8-hour
workday.” AR 176; Soc. Sec. Ruling 83-10, 1983 WL 31251
(1983). Because of Plaintiff's age, education, and work
experience, restricting her to a sedentary exertional level
mandates a determination of disability under the
Medical-Vocational Guidelines. 20 C.F.R. Pt. 404, Subpt. P,
App'x 1, § 201.14. The Commissioner states that
“[i]t is not entirely clear who made” the
disability finding. Dkt. 15 at 4. Other than apparently
baseless speculation that someone in the Social Security
Administration erroneously entered some data somewhere, the
Commissioner offers no reason why the agency's disability
determination is incorrect. This is not an adequate basis for
the Court to conclude that the record is not fully developed.
Commissioner relies on Treichler to argue that other
outstanding evidentiary issues preclude remand for benefits.
Dkt. 15 at 3 (citing Treichler v. Comm'r. of Soc.
Sec. Admin., 775 F.3d 1090, 1099-1101 (9th Cir. 2014)).
In Treichler, there were “significant factual
conflicts in 1104. Here, there are no significant factual
“the ALJ did not evaluate chronic pain syndrome,
” the Commissioner argues that “this impairment
should be explicitly addressed on remand.” Dkt. 15 at
3. The fact that Plaintiff could be found disabled on the
additional ground of chronic pain syndrome does not make
evidence of chronic pain relevant to finding her disabled on
the grounds of neuropathy and degenerative disc disease. The
Commissioner does not argue that adding another severe
impairment will render Plaintiff any less impaired.
the Commissioner argues that because “Plaintiff argues
the ALJ failed to develop the record because the ALJ did not
request podiatry records regarding her neuropathy and foot
issues, ” further proceedings would be useful. Dkt. 15
at 4-5 (citing Dkt. 11 at 16). Plaintiff initially argued in
her opening brief that the ALJ erred by rejecting Dr.
Kim's findings without requesting notes from a podiatrist
that Dr. Kim repeatedly mentioned had treated Plaintiff. Dkt.
11 at 16. In the response brief, the Commissioner does not
argue that the podiatrist's notes might justify
discounting Dr. Kim's opinions, but in fact concedes the
ALJ erred by rejecting Dr. Kim's opinions. Dkt. 15. The
lack of the podiatrist's notes do not indicate the type
of “significant factual conflicts in the record”
that require further proceedings. Treichler, 775
F.3d at 1104.
The ALJ Improperly Discredited Plaintiff's Testimony ...