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Jason S. N. v. Berryhill

United States District Court, D. Montana, Butte Division

May 14, 2019

JASON S. N., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          Jeremiah C. Lynch, United States Magistrate Judge.

         Plaintiff brings this action under 42 U.S.C. § 405(g) seeking judicial review of the Acting Commissioner of Social Security Administration's final decision denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. The Commissioner concedes that the decision by Administrative Law Judge is not supported by substantial evidence and moves to remand for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Plaintiff agrees that the ALJ erred but argues the Court should remand for an immediate award of benefits. For the reasons set forth below, the Court finds that remand for an immediate award of benefits is warranted.

         I. Background

         Plaintiff filed an application for disability insurance benefits in October 2012, alleging disability based on epilepsy with an original onset date of April 1, 2012, and an amended onset date of January 1, 2012. Plaintiffs application was denied at all administrative levels, and in December 2014 Plaintiff filed an action in this Court seeking judicial review of the Commissioner's decision. Neely v. Colvin, Cause No. CV-14-83-BU-JCL. The parties subsequently filed a stipulated motion to remand, and on May 4, 2015, the Court issued an order remanding the case to the Commissioner for further administrative proceedings. Neely, CV-14-83-BU-JCL (Doc. 13).

         Approximately six months later, the Appeals Council issued an order remanding the case to an ALJ for resolution of the following issues: (1) consideration of lay witness testimony from Plaintiffs girlfriend; (2) consideration of the medical source opinions, including those from treating neurologist Dr. Carlos Sullivan, treating physician Dr. Amy Mclntrye, and consultative examiner Dr. Mark Mozer, and (3) evaluation of Plaintiff s subjective symptom testimony. (Doc. 24, at 733-735).

         To address these issues, the Appeals Council instructed the ALJ to: (1) update the medical records; (2) reevaluate whether Plaintiffs impairments met or equaled the severity of a listed impairment and, as necessary, obtain evidence from a medical expert to make this step-three determination, and; (3) give further consideration to Plaintiffs maximum residual functional capacity during the relevant period, and in doing so, evaluate the treating and nontreating medical source opinions and explain the weight given to such opinion evidence; (4) further evaluate Plaintiffs subjective complaints and consider lay witness testimony from Plaintiffs girlfriend, and; (5) obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on Plaintiffs occupational base. (Doc. 24, at 733-735).

         Plaintiffs case was remanded to the original ALJ, who held a second administrative hearing on August 8, 2016. The ALJ did not elicit testimony from a medical expert at the hearing or consult with one afterwards. Approximately seven months after the hearing, on March 10, 2017, the ALJ issued a decision denying Plaintiffs claim for benefits. (Doc. 24, at 693-704). On January 11, 2018, Plaintiff filed this action seeking judicial review of the ALJ's adverse decision pursuant to 42 U.S.C. § 405(g) and requesting an award of benefits.

         The Commissioner moved to dismiss for lack of subject matter jurisdiction on the ground that there was no final decision for purposes of 42 U.S.C. § 405(g) because Plaintiff had not exhausted his administrative remedies. The Court rejected the Commissioner's argument, finding that under the circumstances, the ALJ's decision was a "final decision" for purposes of jurisdiction under § 405(g). The Court further found that even if Plaintiff did not exhaust his administrative remedies, he had sufficiently raised a colorable due process violation such that the exhaustion requirement should be waived.

         Following the Court's order denying her motion to dismiss, the Commissioner filed the administrative record. Having determined based on her review of the record that the ALJ's March 2017 decision is not supported by substantial evidence, the Commissioner filed the pending motion to remand for further administrative proceedings. The parties agree that remand is required, but disagree as to whether the court should remand for further proceedings or for an award of benefits.

         II. Discussion

         "When the ALJ denies benefits and the court finds error, the court ordinarily must remand to the agency for further proceedings before directing an award of benefits." Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). Remand for an award of benefits is appropriate only in "rare circumstances" when the requirements of a three-part test known as the "credit-as-true" rule are satisfied. See Treichler v. Comm'r of Soc. Sec. Admin, 775 F.3d 1090, 1101-02 (9th Cir. 2014). First, the court must conclude that the ALJ failed to provide legally sufficient reasons for rejecting evidence, such as the claimant's testimony or a medical opinion. Leon, 880 F.3d at 1045. Second, the court must find that the record has been fully developed and there are no outstanding issues on which further administrative proceedings would be useful. Leon, 880 F.3d at 1045. Third, the court must conclude that if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled. Leon, 880 F.3d at 1045 ("When these first two conditions are satisfied, we then credit the discredited testimony as true for the purpose of determining whether, on the record as a whole, there is no doubt as to disability.").

         Even if the first two requirements are satisfied and the court credits the evidence as true, "it is within the court's discretion either to make a direct award of benefits or to remand for further proceedings." Leon, 880 F.3d at 1045. Remand for an award of benefits is proper only if there is "no serious doubt" based on "an evaluation of the record as a whole" that the claimant is in fact disabled. See Trevizo v. Berryhill, 871 F.3d 664, 683 (9th Cir. 2017).

         The Commissioner concedes that the first requirement of the credit-as-true test is satisfied "because the ALJ erred in evaluating evidence," including treating medical source opinions, "in determining that Plaintiff was not disabled." (Doc. 28, at 13). Focusing instead on the second part of the test, the Commissioner argues further administrative proceedings would be useful because there are several outstanding issues that must be resolved before a disability determination can be made.

         The Commissioner takes the position that further development of the record is necessary because no medical expert or treating or examining source has provided an opinion on whether Plaintiff satisfies the current version of Listing 11.02 for disability based on epilepsy. Listing 11.02 requires, among other things, that claimant's seizures persist despite adherence to prescribed treatment and occur with a certain frequency. The Commissioner argues the record contains conflicting evidence regarding the frequency of Plaintiffs seizures and his adherence to prescribed treatment. Even assuming Plaintiff satisfies Listing 11.02, the Commissioner contends further proceedings are necessary to determine when his disability began. The Commissioner maintains this case ...


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