United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATION
YIM YOU, UNITED STATES MAGISTRATE JUDGE
P. (âplaintiffâ), seeks judicial review of the initial
decision by the Commissioner of Social Security
(âCommissionerâ) denying his application for Title XVI Social
Security Income (âSSIâ) under the Social Security Act
(âActâ). This court has jurisdiction to review the
Commissioner's decision pursuant to 42 U.S.C. Â§Â§ 405(g)
and 1383(c)(3). Because the Commissioner's decision is
not supported by substantial evidence, it should be REVERSED
and REMANDED for the immediate calculation and payment of
applied for Title XVI benefits on January 26, 2011, and his
application was denied initially and on reconsideration. Tr.
54-75. After a hearing, Administrative Law Judge
(“ALJ”) R.J. Payne issued an unfavorable decision
on February 11, 2013. Tr. 76-93. Plaintiff requested review
by the Appeals Council, and on September 21, 2013, the
Appeals Council remanded the claim because the ALJ erred in
the formulation of the RFC and in concluding that plaintiff
was capable of his past relevant work. Tr. 94-98. A remand
hearing was held by ALJ Payne on January 8, 2014, but the
hearing was set over to obtain vocational testimony. Tr.
770-78. A supplemental hearing was held on July 23, 2014. On
September 16, 2014, ALJ Payne issued a second unfavorable
decision. Tr. 99-116.
requested review by the Appeals Council, and the Appeals
Council again remanded the claim for further proceedings,
finding that that the ALJ erred in the step four and step
five findings. Tr. 124-27, 218-20. Because ALJ Payne had
already issued two erroneous decisions, the Appeals Council
remanded the case to a different ALJ. Tr. 129. On September
29, 2016, a hearing was held before ALJ Marie Palachuk. Tr.
818-40. On November 25, 2016, ALJ Palachuk issued an
unfavorable decision. Tr. 17-36. Plaintiff again requested
review from the Appeals Council. Tr. 276-77. The Appeals
Council denied plaintiff's request for review, making ALJ
Palachuk's decision the final decision of the
Commissioner. Tr. 11-13.
has been diagnosed with adjustment disorder, antisocial
personality disorder, major depressive disorder, personality
disorder with antisocial and schizoid traits, borderline
intellectual functioning, posttraumatic stress disorder,
learning disorder, dysthymic disorder, and alcohol dependence
in full remission. Tr. 528, 629, 667-68.
alleges that the ALJ improperly rejected the opinions of
non-examining physician Dr. Martin, non-examining physician
Dr. Kravitz, examining physician Dr. Pollack, and examining
physician Dr. Rosenkrans. Pl. Br. 7-14, ECF #17. The
Commissioner concedes that the ALJ erred in rejecting the
opinions of Dr. Martin, Dr. Kravitz, and Dr. Pollack. Def.
Br. 3, ECF #21. However, the Commissioner argues that the
case should be remanded for further proceedings rather than
court determines the Commissioner erred in some respect in
making a decision to deny benefits, the court may affirm,
modify, or reverse the Commissioner's decision
“with or without remanding the cause for a
rehearing.” Treichler v. Comm'r Soc. Sec.
Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting 42
U.S.C. § 405(g)). In determining whether to remand for
further proceedings or immediate payment of benefits, the
Ninth Circuit employs the “credit-as-true”
standard when the following requisites are met: (1) the ALJ
has failed to provide legally sufficient reasons for
rejecting evidence, (2) the record has been fully developed
and further proceedings would serve no useful purpose, and
(3) if the improperly discredited evidence were credited as
true, the ALJ would be required to find the plaintiff
disabled on remand. Garrison v. Colvin, 759 F.3d
995, 1020 (9th Cir. 2014). Even if all of the requisites are
met, however, the court may still remand for further
proceedings, “when the record as a whole creates
serious doubt as to whether the claimant is, in fact,
disabled[.]” Id. at 1021.
the first requisite of the Garrison test is met, as
the Commissioner concedes the ALJ erroneously assessed the
medical opinion evidence. As to the second requisite, the
Commissioner argues that because plaintiff does not challenge
the ALJ's finding that his symptom testimony was not
entirely credible, it “weighs against crediting
evidence as true without further fact-finding by the
ALJ.” Def. Br. 5, ECF #21. The Commissioner further
argues that “[a] well-supported credibility finding
raises additional factual issues that require resolution by
the agency on remand and should prevent an immediate finding
of disability.” Id. (citing Dominguez v.
Colvin, 808 F.3d 403, 409 (9th Cir. 2015)).
Commissioner's reliance on Dominguez is
misplaced. In Dominguez, the Ninth Circuit assessed
whether the district court had abused its discretion in
remanding for further proceedings. See
Dominguez, 808 F.3d at 408 (“We now apply
these principles to determine whether the district court
abused its discretion in remanding this case for further
proceedings.”). Dominguez does not establish a
per se rule that courts cannot remand for benefits
if the plaintiff fails to challenge the ALJ's credibility
finding. Indeed, courts in this district have regularly
relied on medical opinion evidence to remand for an award of
benefits, even in cases where the ALJ properly discounted the
plaintiff's credibility. See, e.g., Ross v.
Comm'r Soc. Sec. Admin., No. 6:16-cv-00903-AA, 2018
WL 263639 (D. Or. Jan. 2, 2018) (remanding for an immediate
award of benefits despite the ALJ's proper rejection of
plaintiff's symptom testimony); Fulsaas v.
Berryhill, No. 3:17-cv-00296-PK, 2018 WL 2091357 (D. Or.
Mar. 22, 2018) findings and recommendation adopted,
2018 WL 2090475 (D. Or. May 4, 2018) (remanding for an
immediate award of benefits despite the fact that plaintiff
did not challenge the ALJ's credibility finding); see
also Connie T. v. Berryhill, No.
6:17-cv-01967-YY, 2019 WL 2419461 (D. Or. Jun. 10, 2019)
(remanding for an immediate award of benefits based on
medical opinion evidence without reaching the question of
plaintiff's subjective symptom testimony).
in Dominguez, the plaintiff sought to credit as true
the opinion of Dr. Bhakta. However, the Ninth Circuit held
that a remand for proceedings was proper because there were
inconsistencies in Dr. Bhakta's opinion and it conflicted
with the opinions of several other doctors.
Dominguez, 808 F.3d at 409. While the court also
noted the issue of plaintiff's credibility, it is clear
that the primary reasons for declining to credit Dr.
Bhakta' opinion were the inconsistencies in the opinion
itself as well as the conflicting medical opinion evidence.
unlike Dominguez, the Commissioner has not
identified any internal inconsistencies in the opinions of
Dr. Martin, Dr. Kravitz, or Dr. Pollack. Moreover, unlike
Dominguez, the Commissioner has not identified any
medical opinions that contradict the opinions of those
doctors. Accordingly, Dominguez is inapposite. The
crucial question in this case is whether there are
inconsistencies or conflicts relating to the medical opinions
that plaintiff asks the court to credit. While the
Commissioner attempts to place the focus on plaintiff's
subjective symptom testimony, she has not identified any
inconsistencies or conflicts with the medical opinion
evidence relied on by plaintiff. Because the “crucial
questions” have been resolved, further administrative
proceedings would not serve “a useful purpose.”
See Treichler v. Comm'r of Soc. Sec. Admin., 775
F.3d 1090, 1105 (9th Cir. 2014) (considering whether the
“record raises crucial questions as to the extent of
[the plaintiff's] impairment given inconsistencies
between his testimony and the medical evidence in the
record” in resolving the second factor).
the third requisite, if the discredited evidence is credited
as true, the ALJ would be required to find plaintiff
disabled. The VE testified that based on the limitations
assessed by Dr. Kravitz, plaintiff would be disabled. Tr.
810-12; see also Def. Br. 4, ECF #21. The VE also
testified that plaintiff would be disabled based on the
limitations identified by Dr. Pollack. Tr. 670, 816; see
also Def. Br. 4, ECF #21. Dr. Pollack assessed that
plaintiff would be markedly limited in his ability to
maintain a schedule and be punctual within customary
tolerances, to complete a normal workday and workweek without
interruptions from psychologically based symptoms, and to
perform at a consistent pace ...