United States District Court, D. Montana, Butte Division
JASON S. N., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
Jeremiah C. Lynch, United States Magistrate Judge.
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.
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).
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
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
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.
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.
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
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.").
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).
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.
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