1 Nov 12, 2025
SEAN F. MCAVOY, CLERK 2 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4
5 DAVID F.,1 No. 1: 25-cv-03061-EFS 6 Plaintiff, 7 ORDER REVERSING THE 8 v. ALJ’S DENIAL OF BENEFITS, AND REMANDING FOR 9 FRANK BISIGNANO, FURTHER PROCEEDINGS Commissioner of Social Security, 10
Defendant. 11 12
13 Due to intellectual disorder, depressive disorder, anxiety 14 15 disorder, and alcohol abuse disorder, Plaintiff David F. claims that he 16 was unable to work fulltime for the closed period between May 1, 2015, 17 and February 1, 2020, and applied for disability insurance benefits and 18 19 20 21 1 For privacy reasons, Plaintiff is referred to by first name and last 22 initial or as “Plaintiff.” See LCivR 5.2(c). 23 1 supplemental security income benefits.2 He appeals the denial of 2 benefits by the Administrative Law Judge (ALJ) on the grounds that 3 the ALJ failed to consider Listing 12.05(C); improperly analyzed the 4 opinions of the examining medical sources and treating medical 5 sources, Dr. Miller, Dr. Teal, Dr. Marks, and Dr. Weiss; and improperly 6 assessed Plaintiff’s credibility. As is explained below, the ALJ erred. 7 8 This matter is remanded for further proceedings. 9 I. Background 10 In November 2016, Plaintiff filed applications for benefits under 11 Title 2 and Title 16, with both applications claiming disability 12 beginning May 1, 2015, based on the mental impairments noted above.3 13 Plaintiff’s claim was denied at the initial and reconsideration 14 15 phases.4 After the agency denied Plaintiff benefits, ALJ Steve Lynch 16 held a hearing in March 2019, at which Plaintiff appeared with his 17
18 2 Plaintiff returned to what appears to be an accommodated work 19 20 position on February 1, 2020. AR 595-596, 597-598. 21 3 AR 204-27, 208-216. 22 4 AR 137-145, 148-154. 23 1 representative.5 Plaintiff and a medical expert and a vocational expert 2 testified.6 On April 8, 2019, ALJ Lynch issued an unfavorable 3 decision, and Plaintiff appealed to the Appeals Council.7 In April 2020, 4 the Appeals Council denied Plaintiff’s appeal, and he filed in this 5 court.8 This Court entered an order affirming the ALJ decision but in 6 March 2022, the U.S. Court of Appeals for the Ninth Circuit issued an 7 8 order reversing the District Court’s affirmation and remanded the case 9 for further development of the medical record.9 The Appeals Council 10 remanded the case back to the ALJ for further proceedings.10 In 11 October 2023, ALJ Timothy Mangrum held a hearing at which Plaintiff 12 13 14 15
16 5 AR 36-67. 17 6 Id. 18 7 AR 13-35, 201. 19 20 8 AR 1-6, 650-716. 21 9 AR 665, 674. 22 10 AR 717-720. 23 1 appeared with his representative.11 Plaintiff and a vocational expert 2 testified.12 3 After the hearing, ALJ Mangrum issued a decision denying 4 benefits.13 The ALJ found Plaintiff’s alleged symptoms were not 5 entirely consistent with the medical evidence and the other evidence.14 6 As to medical opinions, the ALJ found: 7 8 • The opinions of non-examining medical advisor John 9 Simonds, MD, to be entitled to great weight. 10 • The opinions of non-examining, state agency evaluators B. 11 Eather, PhD, and J. Robinson, PhD, to be entitled to 12 significant weight. 13 14 • The ALJ incorrectly attributed the opinions of a non- 15 medical expert disability adjudicator, Pamela Mildenberger, 16
17 11 AR 589-620. 18 12 Id. 19 20 13 AR 557-588. Per 20 C.F.R. §§ 404.1520(a)–(g), a five-step evaluation 21 determines whether a claimant is disabled. 22 14 AR 568-573. 23 1 to those of a medical source and found them to be entitled to 2 great weight.15 3 • The opinions of non-examining, state agency evaluator 4 Wayne Hurley, MD, to be entitled to great weight. 5 • The opinions of treating sources Charles Miller, MD, and 6 Jeff Teal, PhD; the opinions of examining sources K.N. 7 8 Marks, PhD, Peter Weiss, PhD, and C. Williams, MD; and 9 the opinions of non-examining state agency evaluator R. 10 Eisenhauer, PhD, to be entitled to little weight.16 11 The ALJ also considered the record of Global Assessment of 12 Functioning (GAF) scores in the 40’s, which are indicative of a serious 13 impairment in social or occupational functioning and found the scores 14 15 16 17 18 19 20 21 15 AR 574, 99. 22 16 AR 573-580. 23 1 to be entitled to little weight.17 As to the sequential disability analysis, 2 the ALJ found: 3 • Step one: Plaintiff met the insured status requirements of 4 the Social Security Act through September 30, 2017. 5 Plaintiff had not engaged in substantial gainful activity 6 between May 1, 2015, and February 1, 2020, but has 7 8 engaged in substantial gainful activity after February 1, 9 2020. 10 • Step two: Plaintiff had the following medically determinable 11 severe impairments: intellectual disorder; depressive 12 disorder; anxiety disorder; and alcohol abuse disorder. At 13 step two, the ALJ also found that Plaintiff’s medically 14 15 determinable impairments of hypertension, dextroscoliosis, 16 and back pain are nonsevere. 17
18 17 AR 580. American Psychiatric Association, Global Assessment of 19 20 Functioning, Diagnostic and Statistical Manual of Mental Disorders, 21 Fourth Edition (last viewed November 3, 2025). 22
23 1 • Step three: Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled 3 the severity of one of the listed impairments with specific 4 consideration of Listing 12.05. 5 • RFC: Plaintiff had the RFC to perform a full range of work 6 at all exertional levels but with the following nonexertional 7 8 limitations: 9 [Plaintiff] is limited to jobs involving simple work- related instructions, tasks and decisions in a 10 predictable work setting with only occasional changes 11 in the work setting. [Plaintiff] cannot have interaction with the general public. [Plaintiff] is limited to only 12 incidental interaction with coworkers. [Plaintiff] can never perform tandem tasks or work in close 13 cooperation with coworkers. [Plaintiff] is able to have normal interaction, as needed, with supervisors. 14 15 • Step four: Plaintiff is unable to perform his past relevant 16 work as a short order cook. 17 • Step five: considering Plaintiff’s RFC, age, education, and 18 work history, Plaintiff could perform work that existed in 19 significant numbers in the national economy, such as a 20 21 22 23 1 Kitchen Helper (DOT 318.687-010), Hand Packager (DOT 2 920.587-018), and Laundry Worker II (DOT 361.685-018).18 3 Plaintiff timely requested review of the ALJ’s decision by this 4 Court. 5 II. Standard of Review 6 The ALJ’s decision is reversed “only if it is not supported by 7 8 substantial evidence or is based on legal error,”19 and such error 9 impacted the nondisability determination.20 Substantial evidence is 10 “more than a mere scintilla but less than a preponderance; it is such 11 12 13 14
15 18 AR 563-581. 16 19 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). See 42 U.S.C. § 17 405(g). 18 20 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) ), superseded 19 20 on other grounds by 20 C.F.R. § 416.920(a) (recognizing that the court 21 may not reverse an ALJ decision due to a harmless error—one that “is 22 inconsequential to the ultimate nondisability determination”). 23 1 relevant evidence as a reasonable mind might accept as adequate to 2 support a conclusion.”21 3 III. Analysis 4 Plaintiff seeks relief from the denial of disability on three 5 grounds. He argues the ALJ erred when he failed to consider Listing 6 12.05C, which was deleted after Plaintiff filed his claim but prior to 7 8 adjudication of his case; erred in his consideration of the medical 9 expert opinions, and specifically in failing to follow the directive of the 10 Court of Appeals to develop the medical record; and erred in his 11 consideration of Plaintiff’s subjective claims. The Commissioner 12 13 14 21 Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 15 980 (9th Cir. 1997)). See also Lingenfelter v. Astrue, 504 F.3d 1028, 16 1035 (9th Cir. 2007) (The court “must consider the entire record as a 17 whole, weighing both the evidence that supports and the evidence that 18 detracts from the Commissioner's conclusion,” not simply the evidence 19 20 cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 21 383, 386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does 22 not indicate that such evidence was not considered[.]”). 23 1 counter-argues that the ALJ properly considered the amended version 2 of Listing 12.05 that was amended after Plaintiff filed his claim and 3 contained only 12.05(A) and 12.05(B); properly considered the medical 4 opinion evidence; and adequately explained his consideration of 5 Plaintiff’s subjective complaints. The Court disagrees in part with the 6 Commissioner. As is explained below, the ALJ’s analysis of the medical 7 8 opinion evidence contains consequential error and he failed to properly 9 develop the record as directed by the Court of Appeals. Additionally, 10 the Court finds the Commissioner’s arguments regarding the 11 applicability of Listing 12.05(C) to be flawed. 12 A. Medical Opinions: Plaintiff establishes consequential 13 error. 14 15 Plaintiff argues the ALJ erred by discounting the medical 16 opinions of both treating medical sources and examining sources, 17 instead giving greater weight to the opinions of the non-examining 18 state agency evaluators and the medical expert who appeared at the 19 2019 hearing; erred by failing to consider Listing 12.05(C); and erred in 20 his consideration of Plaintiff’s subjective complaints. Plaintiff argues 21 22 that the reasons given by the ALJ to discount the medical opinions of 23 1 the treating and examining sources are the same reasons found to be 2 inadequate by the Court of Appeals, thereby violating the law of the 3 case. The Commissioner argues the ALJ adequately articulated his 4 reasoning to give greater weight to the opinions of the medical advisor. 5 After considering the medical opinions in question, the medical 6 evidence of record, and the reasons given by the ALJ to discount Dr. 7 8 Teal’s opinions, the Court determines the ALJ’s evaluation of the 9 medical opinions of Dr. Teal, Dr. Miller, Dr. Marks, and Dr. Weiss is 10 not supported by substantial evidence. 11 1. Standard 12 When Plaintiff filed his initial disability application, medical 13 14 opinions were to be assessed based on the nature of the medical 15 relationship the claimant had with the medical provider. When a 16 treating physician’s or evaluating physician’s opinion is not 17 contradicted by another physician’s opinion, it may be rejected only for 18 “clear and convincing” reasons, and when it is contradicted, it may be 19 rejected for “specific and legitimate reasons” supported by substantial 20 21 22 23 1 evidence.22 A reviewing physician’s opinion may be rejected for specific 2 and legitimate reasons supported by substantial evidence, and the 3 opinion of an “other” medical source23 may be rejected for specific and 4 germane reasons supported by substantial evidence.24 5 2. The Court of Appeals Directive to Develop the Record on Remand 6 7 In its opinion, the Court of Appeals for the Ninth Circuit reversed 8 the decision of the District Court and remanded the case to the 9 Commissioner for further proceedings.25 The Ninth Circuit articulated 10 the following: 11 In reaching his conclusion as to off-task work, the ALJ 12 relied on the testimony of the consulting physician. 13 14 22 Id.; Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). 15 23 See 20 C.F.R. § 404.1502 (defining who is an acceptable medical 16 source for claims filed before March 27, 2017). 17 24 Molina, 674 F.3d at 1111. The opinion of a reviewing physician 18 serves as substantial evidence if it is supported by other independent 19 20 evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 21 Cir. 1995). 22 25 AR 674. 23 1 However, treating psychologist Teal opined that Farnsworth would be off task 21-30% of the time and would miss 2 days 2 of work a month. Treating physician Miller stated that Farnsworth would likely miss 4 or more days of work a 3 month. Examining psychologist Weiss opined that 4 Farnsworth would have “severe” difficulty maintaining attendance or completing a normal workday. And 5 examining psychologist Marks assessed limitations similar to those identified by Weiss. 6
The significance of these opinions was demonstrated by the 7 vocational expert, who testified at the hearing that a 10% 8 off-task rate is “kind of the cutoff point,” such that someone who is off task 10% of the time or more “is not likely to 9 maintain employment” of any kind—and, thus, would qualify for benefits.26 10
11 The Ninth Circuit went on to hold:
12 The ALJ rejected those opinons by simply stating that the consulting physician disagreed with them. In fact, the 13 consulting physician stated that he could not provide a figure as to the amount of time [Plaintiff] would be off task 14 in a work environment. 15 Further, while the ALJ explicitly referenced and gave “little 16 weight” to psychologist Teal’s projected off-task rate of 21- 30%”, the ALJ provided no specific explanation for why it 17 credited this portion of the consulting physician’s opinion 18 more strongly than Teals, or for how much lower that 21% it assumed the off-task rate to be. Only by implication did the 19 ALJ determine that “Plaintiff’s off-task rate would be less than 10%. There is no record support for this conclusion. 20
22 26 AR 676-677. 23 1 At most, the evidence on this issue is ambiguous and “[a]n ALJ’s duty to develop the record further is triggered…when 2 there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.” 3 Mayes v Massanari, 276 F. 3d 453, 459-60 (9th Cir. 2001).27 4 3. Medical Records Considered by the Court of Appeals 5 a. Dr. Marks 6 On August 25, 2016, Plaintiff was examined by N.K. Marks, PhD, 7 8 at the request of the Washington State Dept. of Social and Health 9 Services (DSHS).28 Dr. Marks provided a detailed report that included 10 a psychosocial history, medical and treatment history, education and 11 work history, substance abuse history and activities of daily living 12 report.29 Plaintiff reported that his father was verbally abusive in his 13 childhood and this gave him anger issues, that he had married when he 14 15 was young for one month and did not know if he was divorced, and that 16 he spoke with his mother and cousin.30 Plaintiff reported that he loses 17
18 27 AR 678. 19 20 28 AR 471-478. 21 29 AR 471-472. 22 30 AR 471. 23 1 his temper easily when at work, was diagnosed as learning disabled 2 and mentally retarded and received special education, and that he was 3 bullied in school.31 Plaintiff reported that he attended AA in the past 4 and presently attended therapy and took medication for anger, anxiety, 5 and depression.32 Plaintiff said he lived with his mother and cousin and 6 could cook, clean, and bathe himself but could not remember to take 7 8 medications, shop on his own, pay his own bills, take public 9 transportation, read, write, do math, drive, or obtain a license.33 10 On mental status examination, Plaintiff was moderately groomed 11 and spoke with well-organized but simple speech.34 He was cooperative 12 and friendly and was in Dr. Marks’ opinion a childlike person who 13 could be easily exploited.35 His mood was anxious but his affect was 14 15 16
17 31 AR 472. 18 32 Id. 19 20 33 Id. 21 34 AR 475. 22 35 Id. 23 1 relaxed and not consistent with mood.36 Plaintiff was oriented with 2 normal perception and thought process, but his memory was not within 3 normal limits.37 He could immediately recall 3 digits forward and 2 4 backward, could not draw overlapping polygons, could not perform 5 simple math, and could not remember any of three items after a 6 delay.38 Plaintiff had a very limited fund of knowledge and could only 7 8 answer two of eight questions, had impaired abstract thought and 9 could only answer two of six questions with very literal answers.39 10 Plaintiff’s concentration, insight, and judgment were within normal 11 limits.40 12 Dr. Marks administered a WAIS-IV Intelligence test and it 13 indicated that verbal comprehension and processing speed were 14 15 borderline; and that perceptual reasoning, working memory, and 16
17 36 Id. 18 37 AR 476. 19 20 38 Id. 21 39 Id. 22 40 Id. 23 1 general ability were extremely low.41 Plaintiff’s IQ score was 66.42 2 Dr. Marks stated that all areas were delayed and Plaintiff would have 3 significantly more difficulty understanding what he hears, learning, 4 and performing hands-on activities.43 She stated that he had a weak 5 short-term and long-term memory; had poor visual motor planning and 6 executive functioning; is not mentally flexible; that once he learned a 7 8 task Plaintiff would find it difficult to do it a different way; he cannot 9 maintain two trains of thought; and he is easily distracted by others.44 10 Dr. Marks opined that his likely diagnosis was mild intellectual 11 disability.45 12 b. Dr. Weiss 13 On August 31, 2018, Plaintiff was examined by Peter Weiss, PhD, 14 15 at the request of the Washington State Department of Social and 16
17 41 AR 477. 18 42 Id. 19 20 43 AR 478. 21 44 Id. 22 45 Id. 23 1 Health Services (DSHS).46 Dr. Weiss provided a detailed report that 2 included a psychosocial history, medical and treatment history, 3 education and work history, substance abuse history, and activities of 4 daily living report.47 Plaintiff reported that he had poor sleep and 5 appetite, low energy, a loss of interest in activities, difficulty 6 concentrating, and feelings of hopelessness and helplessness.48 7 8 Dr. Weiss noted that Plaintiff had left school in the 10th grade and did 9 not have a GED and that Dr. Marks’ evaluation indicated a full scale 10 IQ of 66.49 Plaintiff reported that he lived with his mother and cared 11 for his dogs and occasionally did chores, but spent most of his day 12 listening to music.50 13 14 15 16
17 46 AR 537-540. 18 47 Id. 19 20 48 AR 537. 21 49 Id. 22 50 Id. 23 1 On examination, Plaintiff’s mood was depressed and his affect 2 was dysthymic.51 He was oriented, and his thought process, perception, 3 and memory were within normal limits.52 Plaintiff had a limited fund 4 of knowledge and was not able to perform serial sevens.53 Dr. Weiss 5 diagnosed major depressive disorder, recurrent, moderate; intellectual 6 disability, mild; and rule out alcohol use disorder.54 He opined that 7 8 Plaintiff would have a mild limitation in performing the following 9 tasks: performing routine tasks without special supervision, making 10 simple work-related decisions, being aware of hazards, and asking 11 simple questions or asking for assistance.55 He opined that Plaintiff 12 would have a moderate limitation in the following tasks: 13 understanding, remembering and persisting in tasks involving short 14 15 simple instructions; adapting to changes in a routine work setting; and 16
17 51 AR 540. 18 52 Id. 19 20 53 Id. 21 54 AR 538. 22 55 Id. 23 1 maintaining appropriate behavior in a work setting.56 He opined that 2 Plaintiff would have a marked limitation in learning new tasks.57 He 3 opined that Plaintiff would have a severe limitation in completing the 4 following tasks: understand, remember, and persist in task involving 5 detailed instructions; perform activities within a schedule, maintain 6 attendance and be punctual; communicate and perform effectively in a 7 8 work setting; complete a normal workday and workweek without 9 interruption; and set realistic goals and plan independently.58 10 c. Dr. Miller 11 On June 25, 2018, Plaintiff’s primary medical doctor, Charles 12 Miller, MD, completed a medical report form.59 He indicated that he 13 first saw Plaintiff on July 17, 2017, and last saw him on May 9, 2018.60 14 15 He stated that Plaintiff’s diagnoses are depression, hypertension, 16
17 56 Id. 18 57 Id. 19 20 58 AR 538-539. 21 59 AR 488-489. 22 60 AR 488. 23 1 insomnia, alcohol abuse, anger, a history of learning disability, 2 marijuana dependence, smoking tobacco, and mild intellectual 3 disability.61 He indicated that the details of clinical signs were in 4 Dr. Teal’s and Dr. Marks’ reports.62 Dr. Miller stated that medications 5 included lisinopril, sertraline, Chantix, and vitamin D.63 6 Dr. Miller stated that Plaintiff has a poor prognosis and was 7 8 unable to maintain employment due to intellectual disability and 9 emotional lability.64 He said that a work environment would cause 10 Plaintiff’s condition to deteriorate because he would become frustrated 11 and angry due to his intellectual limitations and noted that Plaintiff 12 was unable to manage his finances or shop alone.65 He opined that 13 Plaintiff would miss time from work due to medical impairments and 14 15 opined that he would be absent from work 4 days or more a month due 16
17 61 Id. 18 62 Id. 19 20 63 Id. 21 64 AR 489. 22 65 Id. 23 1 to emotional labilty.66 Dr. Miller opined that the limitations existed 2 since at least July 7, 2017.67 3 d. Dr. Teal 4 On April 19, 2018, Plaintiff presented to Jeff Teal, PhD.68 5 Plaintiff reported that he was physically active but limited in social 6 contacts to daily calls with a female friend in Texas.69 Plaintiff’s affect 7 8 was limited in range but primarily euthymic, although Plaintiff 9 reported daily restlessness, feeling fidgety, difficulty falling asleep, and 10 fatigue.70 Dr. Teal assessed major depressive disorder, recurrent, in full 11 remission; and cognitive disorder.71 12 13 14 15
16 66 Id. 17 67 Id. 18 68 AR 470. 19 20 69 Id. 21 70 Id. 22 71 Id. 23 1 On May 16, 2018, Plaintiff presented to Dr. Teal.72 Plaintiff 2 reported that he was doing well with only restless leg syndrome and 3 social contacts with his family and neighbors, as well as texting with a 4 woman in Texas.73 5 On June 20, 2018, Plaintiff presented to Dr. Teal.74 He reported 6 doing well and having limited social contact with a woman in Texas, as 7 8 well as his mother and family.75 His affect was mildly euthymic.76 9 Plaintiff reported being irritable, as he was not smoking and said that 10 he was continuing to text a female friend in Texas but could not travel 11 due to finances.77 He reported that he was doing better with “some” 12 social contacts.78 13 14
15 72 AR 485. 16 73 Id. 17 74 AR 487. 18 75 Id. 19 20 76 Id. 21 77 Id. 22 78 Id. 23 1 On July 31, 2018, Plaintiff presented to Dr. Teal.79 He reported a 2 consistently good mood and his affect was mildly euthymic.80 On 3 August 21, 2018, Plaintiff called the medical office six times and was 4 quite irritated that his prescription for Chantix was not refilled.81 On 5 August 22, 2018, the doctor’s office called Plaintiff to explain that the 6 Chantix prescription was only to be filled once but he asked for a 7 8 second course of treatment since he still craved cigarettes.82 9 On September 11, 2018, Plaintiff presented to Dr. Teal.83 Plaintiff 10 reported that he was under a lot of stress because he lost his 11 appointment card and missed an appointment, he was tested for 12 cognitive disorders and has an IQ of 68, and the woman he thought was 13 his girlfriend had scammed him for several hundred dollars and did not 14 15 16
17 79 AR 490. 18 80 Id. 19 20 81 AR 491. 21 82 Id. 22 83 AR 492. 23 1 show up to meet him.84 Plaintiff reported that he was not socializing 2 with anyone outside of his house.85 His expression was mildly 3 euthymic.86 4 On October 31, 2018, Plaintiff presented to Dr. Teal.87 Plaintiff 5 reported difficulty sleeping due to back pain, with irritable mood and 6 increased use of alcohol and cannabis.88 Plaintiff’s expression was 7 8 mildly dysthymic, with pain behaviors and he reported social contacts 9 with his mother, cousin, and occasionally with neighbors.89 Plaintiff 10 reported sleep disturbance for half of the days in the week and 11 restlessness and fidgetiness daily.90 Dr. Teal assessed major depressive 12 disorder, recurrent, in full remission; intellectual disability, mild; and 13 14
15 84 Id. 16 85 Id. 17 86 Id. 18 87 AR 503. 19 20 88 Id. 21 89 Id. 22 90 Id. 23 1 alcohol use disorder, mild, and encouraged increased socialization.91 2 Dr. Teal noted that the diagnosis of intellectual disability was historic 3 but was consistent with clinical observation.92 On the same day, 4 Plaintiff presented to Dr. Miller for shoulder pain and Dr. Miller noted 5 that Dr. Teal supported Plaintiff’s claim for SSI due to psychiatric 6 impairment.93 Dr. Miller also noted fatigue due to sleep impairment.94 7 8 Dr. Miller assessed upper back pain, right; shoulder pain, right; 9 cervical radiculopathy; cognitive impairment; and history of low back 10 pain.95 11 On February 22, 2019, Dr. Teal completed a Medical Source 12 Statement.96 Dr. Teal opined that Plaintiff would be mildly limited in 13 the following tasks: carrying out short, simple instructions; performing 14 15
16 91 AR 503-504. 17 92 AR 504. 18 93 AR 505. 19 20 94 AR 506. 21 95 AR 507. 22 96 AR 542-545. 23 1 activities within a schedule, maintaining attendance, and being 2 punctual; working in proximity to others; completing a normal 3 workweek or workday without interruptions; asking simple questions 4 or requesting assistance; and responding appropriately to changes in 5 the work setting.97 He opined that Plaintiff would have a moderate 6 limitation in the following tasks: remember locations and work-like 7 8 procedures; understand and remember short, simple instructions; carry 9 out detailed instructions; sustain an ordinary routine without special 10 supervision; make simple work-related decisions; interact 11 appropriately with the public; accept instruction and respond 12 appropriately to criticism from supervisors; get along with coworkers 13 without distracting them; maintain socially appropriate behavior; and 14 15 be aware of normal hazards.98 Dr. Teal opined that Plaintiff would 16 have a marked limitation in completing the following tasks: 17 understand and remember detailed instructions; maintain attention 18 and concentration for extended periods; travel in unfamiliar places or 19 20 21 97 AR 542-543. 22 98 Id. 23 1 use public transportation; and set realistic goals or make plans 2 independently of others.99 3 With regard to the “B” criteria, Dr. Teal opined that Plaintiff 4 would have a moderate impairment in the ability to: understand, 5 remember, or apply information; interact with others; concentrate, 6 persist, or maintain pace; and adapt or manage oneself.100 With regard 7 8 to the “C” criteria, Dr. Teal opined that Plaintiff met the criteria.101 9 Dr. Teal additionally opined that Plaintiff would be off-task for 21-30% 10 of the workday and that he would miss 2 days of work per month.102 11 Dr. Teal wrote the following narrative comment: “The patient has 12 made good progress on managing symptoms of the depression and 13 alcohol use disorder diagnoses. These diagnoses currently have 14 15 16 17
18 99 Id. 19 20 100 AR 544. 21 101 Id. 22 102 Id. 23 1 minimal impact on the ability to work. The cognitive disorder appears 2 to be the primary disorder impairing ability to work.”103 3 4. Supplemental Medical Records Added to the File after the Court 4 of Appeals remand 5 There was no development of the file by the ALJ on remand, but 6 7 Plaintiff submitted additional medical records. 8 a. Dr. Miller 9 At a September 18, 2019 office visit with Dr. Miller, Plaintiff was 10 noted to have a mildly dysthymic and anxious affect.104 Dr. Miller 11 administered a PHQ-9 test, which reflected a score of 5, indicating mild 12 depression; as well as a GAD-7 test, which reflected a score of 10, 13 14 indicating moderate anxiety.105 15 Plaintiff presented to Dr. Miller on March 4, 2019, “to complete 16 SSI paperwork.”106 Dr. Miller indicated that he had last seen Plaintiff 17
18 103 Id. 19 20 104 AR 831. 21 105 AR 831-832. 22 106 AR 821-824. 23 1 on January 11, 2019, and had told Plaintiff that he needed to cut his 2 alcohol intake that was 10-12 beers daily in January.107 Plaintiff 3 advised that he had completely quit smoking and had limited alcohol to 4 2 24 ounce beers per day.108 Plaintiff reported fatigue, difficulty 5 concentrating, that he was not able to learn to drive due to snow, and 6 that it took 4 days to shovel a path in the snow from his house to the 7 8 road.109 Dr. Miller diagnosed anger, depression, and alcohol abuse.110 9 Dr. Miller indicated that Plaintiff reported anxiety and depression, as 10 well as fatigue during examination.111 11 Dr. Miller administered a PHQ-9 test, which reflected a score of 12 5, indicating mild depression; as well as a GAD-7 test, which reflected 13 a score of 15, indicating moderate anxiety.112 Dr. Miller diagnosed 14 15
16 107 AR 821. 17 108 Id. 18 109 Id. 19 20 110 Id. 21 111 AR 822-823. 22 112 AR 823-824. 23 1 improving anger, alcohol abuse, hypertension, borderline intellectual 2 disability, and moderate depression with anxiety.113 Dr. Miller advised 3 Plaintiff to decrease alcohol intake from 48 ounces of beer a day to 36 4 ounces a day in the next two weeks, and then to decrease from 36 5 ounces of beer a day to 24 ounces a day.114 6 On March 4, 2019, Dr. Miller completed a second Medical 7 8 Report.115 Dr. Miller stated that he first examined Plaintiff on July 17, 9 2017, and last saw him on March 4, 2019.116 He stated that Plaintiff 10 was diagnosed with depression, alcohol abuse, cognitive impairment, 11 anger, and hypertension, and that his attached treatment notes 12 provided details of Plaintiff’s symptoms and test results.117 Dr. Miller 13 stated that Plaintiff was being treated with the medications Sertraline 14 15 16
17 113 AR 824. 18 114 Id. 19 20 115 AR 819-820. 21 116 AR 819. 22 117 Id. 23 1 and Lisinopril, as well as psychotherapy and anger management.118 2 Dr. Miller stated that Plaintiff’s prognosis was poor without cessation 3 of alcohol.119 Dr. Miller indicated that working on a regular basis would 4 cause Plaintiff’s condition to deteriorate because he is intolerant of 5 frustration and challenges due to cognitive impairments and would 6 miss 4 or more days of work per month.120 He wrote that Plaintiff has 7 8 cognitive impairment due to alcohol abuse and closed head injury as 9 well as baseline borderline intellectual functioning by history.121 10 b. Dr. Teal 11 On November 27, 2018, Plaintiff reported to Dr. Teal with reports 12 that he was having less pain and better mood, and that he was able to 13 sleep with pain medication.122 14 15 16
17 118 Id. 18 119 AR 820 19 20 120 Id. 21 121 Id. 22 122 AR 842. 23 1 On December 20, 2018, Plaintiff presented to Dr. Teal for 2 scheduled follow-up.123 He reported that his mood had been very good 3 but that his sleep had not been good due to pain.124 On examination, 4 his affect was mildly euthymic.125 5 On August 22, 2019, Plaintiff presented to Dr. Teal for follow-up 6 and reported that he was doing mostly well, with good relationships 7 8 with his mother and cousin.126 His affect was mildly dysthymic with 9 some restriction in range, but his hygiene was adequate.127 10 At a November 19, 2019 appointment, Plaintiff reported that 11 Dr. Teal that he was “not doing very good.”128 On examination, Plaintiff 12 had a mildly dysthymic affect with restricted range, he had fair 13 14 15
16 123 AR 840. 17 124 Id. 18 125 Id. 19 20 126 AR 834. 21 127 Id. 22 128 AR 827. 23 1 hygiene, and he had a slight tobacco odor.129 Plaintiff reported that his 2 mother had died and he had found homes for 2 of his mother’s dogs and 3 one of his own and was going to move to Yakima to live with his 4 sister.130 Plaintiff reported that he would stop drinking before moving 5 in with his siter but had resumed using tobacco.131 Dr. Teal 6 administered a PHQ-9 test, which reflected a score of 6, indicating mild 7 8 depression; as well as a GAD-7 test, which reflected a score of 7, 9 indicating mild anxiety. 10 On December 18, 2019, Plaintiff presented to Dr. Teal.132 He 11 reported that he was doing better and that his relocation to living with 12 his sister in Yakima was “going fairly well so far.”133 On examination, 13 Plaintiff had a mildly dysthymic affect with restricted range, fair 14 15 16
17 129 AR 827. 18 130 Id. 19 20 131 Id. 21 132 AR 825. 22 133 Id. 23 1 hygiene, slight tobacco odor, and fair insight and judgment.134 Dr. Teal 2 administered a PHQ-9 test, which reflected a score of 3, indicating mild 3 depression; as well as a GAD-7 test, which reflected a score of 7, 4 indicating mild anxiety.135 5 5. The ALJ’s Consideration of Dr. Simond’s and Dr. Teal’s opinions 6 7 regarding time off-task 8 The ALJ found the opinion of Dr. Simonds to be entitled to great 9 weight and the opinions of Dr. Teal were entitled to little weight. 10 The ALJ articulated the following reasoning to support his 11 consideration of Dr. Simond’s opinion: 12 Dr. Simonds provided the opinion that the claimant’s 13 mental health impairments caused a moderate limitation in 14 understanding, remembering, or applying information; a mild to moderate limitation in interacting with others; a 15 mild limitation in concentrating, persisting, or maintaining pace; and a mild to moderate limitation in adapting or 16 managing oneself. Dr. Simonds opined that the claimant is capable of performing simple, repetitive tasks with 17 superficial or no contact with the public. Dr. Simonds also 18 opined that the claimant is capable of superficial, occasional contact with co-workers. Dr. Simonds did not provide a 19 definitive opinion of the percentage of time that the 20 21 134 Id. 22 135 AR 825-826. 23 1 claimant might be off-task in a work environment in response to a question from the claimant’s representative. 2 Rather, Dr. Simonds opined that, based on his review of the record, the claimant would certainly not be off-task 20% of 3 the time in a work environment. 4 The undersigned gives great weight to the opinion of 5 Dr. Simonds, an impartial medical expert and board certified psychiatrist. Dr. Simonds provided detailed 6 testimony of his review of the record at the time of the March 5, 2019 hearing. Dr. Simonds’ opinion is supported 7 by his review of the record, including the claimant’s routine 8 treatment records with Dr. Teal, who consistently documented that the claimant reported improved 9 functioning with therapy and compliance with medication, despite situational stressors. See e.g., Ex. 6F/1-12; 10F/1-6; 10 11F/1- 13, 17; 16F/1, 16, 18, 21, 23-24; 23F/1-4, 10-11, 16-17, 11 20-21. Dr. Simonds’ opinion is also consistent with these routine treatment records with Dr. Teal, who did not 12 document that the claimant presented with deficits in mental status, including difficulty concentrating, task 13 follow-through, or understanding therapy recommendations. Further, Dr. Simonds’ opinion is 14 consistent with the claimant’s acknowledged ongoing 15 activities – without any reports of needing breaks or being off-task – of caregiving, household chores, caring for 16 multiple animals and household repairs. Moreover, Dr. Simonds’ opinion is consistent with the claimant’s prior 17 unskilled work activities that were not accommodated, prior 18 to his move from Idaho to care for his mother full-time.136
19 20 21
22 136 AR 574. 23 1 The ALJ then articulated his consideration of the opinions of 2 Dr. Teal. First, he noted that Dr. Teal found Plaintiff had a moderate 3 limitation in the following areas: remember locations and work-like 4 procedures; understand and remember very short and simple 5 instructions; carry out detailed instructions; sustain an ordinary 6 routine without special supervision; make simple work-related 7 8 decisions; interact appropriately with the public; accept instructions 9 and respond appropriately to criticism from supervisors; get along with 10 co-workers without distracting them; maintain socially appropriate 11 behavior; and be aware of normal hazards.137 He also noted that 12 Dr. Teal also indicated that the claimant has marked limits in the 13 following areas: understand and remember detailed instructions; 14 15 maintain attention and concentration for extended periods; travel in 16 unfamiliar places or use public transportation; and set realistic 17 goals.138 18 The ALJ noted: 19 20 21 137 AR 575. 22 138 Id. 23 1 For the “paragraph B” criteria, Dr. Teal indicated that the claimant has moderate limitations in all four domains. Dr. 2 Teal also indicated that the severity of the claimant’s mental disorders met the “paragraph C” criteria. 3 Specifically, Dr. Teal indicated that there was evidence that 4 the claimant has minimal capacity to adapt to changes in his environment or to demands that are not already part of 5 his daily life. Dr. Teal also indicated that the claimant would be off-task “21- 30%” of the time during a 40-hour per 6 week schedule, and that he would likely miss two days of work per month. Ex. 12F/3. Further, Dr. Teal wrote that the 7 claimant “has made good progress on managing symptoms 8 of the major depressive disorder and alcohol use disorder. These diagnoses currently have minimal impact on ability 9 to work. The cognition disorder appears to be the primary disorder impacting ability to work.” Ex. 12F/4. In February 10 2019, Dr. Teal completed the same check-box form with the 11 same responses. Ex. 20F/1-4; 23F/27-30.139
12 The ALJ then went on to give a rather lengthy explanation 13 of his reasons to discount Dr. Teal’s opinions: 14 Although Dr. Teal is a treating provider, he did not provide 15 any objective findings to support his opinion of such extreme limitations. Rather, Dr. Teal’s opinion on these 16 forms is not supported by his treatment records, in which the claimant consistently presents with improved mood and 17 functioning with therapy and compliance with psychotropic 18 medication without deficits in mental status. Ex. 6F/1-12; 10F/1-6; 11F/1-13, 17; 16F/1, 16, 18, 21, 23-24; 23F/1-4, 10- 19 11, 16- 17, 20-21. Dr. Teal’s opinion of such limitations is also inconsistent with the claimant’s ability to serve as his 20 mother’s full-time caregiver, perform all necessary 21
22 139 Id. 23 1 household tasks and repairs, take care of several animals and his prior unaccommodated work history at a fast food 2 restaurant in Idaho, which he left to take care of his mother, rather than leaving due to issues with productivity 3 or being “off-task” from essential job tasks. 4 Additionally, Dr. Teal’s opinion that the claimant’s cognitive 5 disorder appears to be the primary disorder impacting his ability to work, and that he would be off-task “21-30%” of a 6 workweek and absent two days per month is further inconsistent with Dr. Teal’s own treatment records. In 7 particular, while Dr. Teal indicated that there was a high 8 probability of a “mild neurocognitive disorder” based on the brief cognitive screening he administered, the focus of Dr. 9 Teal’s psychotherapy was on the claimant’s depressive disorder and alcohol use disorder. Ex. 6F/11-12; 10F/1-6; 10 11F/1-13, 17; 16F/1, 16, 18, 21, 23-24; 23F/1-4, 10-11, 16-17, 11 20-21. During routine treatment sessions in which the focus of treatment was on the claimant’s mood, interpersonal 12 relationships, caregiving for his mother, physically demanding activities and hobbies, Dr. Teal did not address 13 any cognitive issues. Specifically, Dr. Teal did not document deficits in the claimant’s understanding, memory, 14 concentration, or ability to persist or maintain pace in any 15 of these activities. Further, the claimant did not report that he had any difficulties with his ability to sustain these 16 activities. To the contrary, during an appointment in May 2018, the claimant reported that he was “doing lots of yard 17 work and getting lots of work done” around the house in 18 addition to his longstanding routine of walking 8 to 10 miles per day with his dogs. During this visit, Dr. Teal also 19 dropped the claimant’s cognitive disorder NOS from the list of diagnoses. Ex. 16F/16; see also Ex. 16F/18, 21, 23-24. 20 Although Dr. Teal added “mild chronic intellectual disability” or “intellectual disability, mild” to the list of 21 diagnoses in late 2018 and 2019, Dr. Teal indicated that 22 this impairment was “stable” and he did not address this condition with the claimant during treatment sessions. Ex. 23 1 23F/2, 4, 10, 16, 20. The claimant also denied any problems with concentration. Ex. 23F/2, 4. As such, the undersigned 2 has reasonably concluded that Dr. Teal did not find that the claimant’s mild intellectual disability caused significant 3 functional limitations. 4 Moreover, other than the representative’s cursory check-box 5 form that it issues to medical sources, there is nothing in Dr. Teal’s treatment notes that even suggests that the 6 claimant would be off-task in a work environment, much less off-task 21-30% of a workday, and/or absent two days 7 per month. Finally, Dr. Teal’s opinion on these forms is 8 inconsistent with the claimant’s testimony at the October 2023 hearing, in which he reported that he started working 9 at Walmart in February 2020, a few months after his mother passed away, and that his supervisors do not have 10 issues with his pace or productivity. Due to the lack of 11 support and consistency with his routine treatment records over several years, and the medical expert opinion of Dr. 12 Simonds, who reviewed the entire record as of the March 2019 hearing, the undersigned gives little weight to Dr. 13 Teal’s opinions.140
14 6. Analysis 15 Plaintiff argues that the ALJ erred in both his assessment of 16 Dr. Simonds’ opinion and Dr. Teal’s opinion as they pertain to time off 17 18 task. Plaintiff argues that the ALJ effectively gave the same reasoning 19 for his consideration of the medical opinions that the Court of Appeals 20 21
22 140 AR 575-576. 23 1 deemed to be flawed and thereby violated the law of the case. The 2 Court agrees. 3 Initially, the Court notes that the ALJ’s reasoning that there was 4 no supporting evidence that Plaintiff suffered from a neurocognitive 5 disorder based on “brief cognitive screening” is flawed. The ALJ did 6 not consider the consistency of Dr. Teal’s finding regarding cognitive 7 8 deficits with the formal intelligence testing administered by Dr. Marks, 9 nor did he consider that as Plaintiff’s long-term treating source 10 Dr. Teal was aware of and had reviewed Dr. Mark’s testing and report, 11 which was contained in Dr. Teal’s medical file.141 12 Moreover, Dr. Teal specifically referenced Dr. Mark’s findings 13 and noted that they were consistent with his own clinical 14 15 observations.142 Notably, Dr. Mark’s testing was quite thorough and 16 cannot accurately be described as “brief neurocognitive testing.”143 The 17 ALJ did not consider the consistency of that testing with Dr. Teal’s 18 19 20 141 AR 41-478. 21 142 AR 504. 22 143 AR 575. 23 1 opinions. Additionally, pursuant to the regulations in place at the time 2 that Plaintiff filed his claim, the ALJ was required to consider the long- 3 standing nature of Dr. Teal’s observations but there is little suggestion 4 that the ALJ considered that Plaintiff was seen by Dr. Teal on a 5 monthly basis for a period of more than two years and then seen once 6 every two to three months thereafter. The fact that the “observations” 7 8 Dr. Teal referenced were made on numerous occasions over a period 9 spanning several years should have been considered. 10 Additionally, the ALJ failed to consider the general consistency of 11 the medical opinions of the examining sources Dr. Marks, Dr. Weiss, 12 and Dr. Williams with Dr. Teal’s opinions. 13 The most concerning flaw in the ALJ’s consideration of the 14 15 medical opinions on remand is that he appears to have disregarded the 16 primary direction given by the Court of Appeals – to further develop 17 the medical record as to the specific issue of time off-task. 18 It was the conclusion of the Court of Appeals that the medical 19 evidence regarding Plaintiff’s ability to maintain a schedule was 20 “ambiguous at best” and that development of the record was 21 22 23 1 necessary.144 The ALJ could have called an expert to testify, scheduled 2 a consultative examination, or queried any of the treating or examining 3 sources as to the percentage of time Plaintiff would be expected to be 4 off task. None of those steps were taken. Instead, the ALJ relied upon 5 his own non-expert opinion that Plaintiff would not be off-task for 6 “any” amount of time.145 It is unlikely that an individual with even a 7 8 mild impairment would not be off-task for any amount of time. Based 9 on this record, it is clear that Plaintiff suffers from a cognitive disorder 10 and, at the least, a mild overlaying mental impairment. 11 The Court concludes that a remand is warranted for the ALJ to 12 properly develop the record and to obtain expert opinion as to the 13 expected time off-task during the relevant period. As noted above, the 14 15 ALJ has several options available to him to develop the record. 16 B. Step Three (The Listings): Plaintiff establishes 17 consequential error. 18 Plaintiff argues that the ALJ erred at step three by failing to 19 20 21 144 AR 678. 22 145 AR 580. 23 1 consider Listing 12.05(C), which was rescinded after Plaintiff filed his 2 claim but before it was adjudicated. Because the case has been 3 remanded for development of the medical record, the Court briefly 4 addresses this issue. 5 1. Standard 6 7 If a claimant meets all the listing criteria, she is considered 8 disabled at step-three. A claimant who does not meet the listing 9 criteria may still be considered disabled at step-three if her 10 impairment(s) medically equal a listed impairment.146 Medical 11 equivalence can be established three ways, one of which is: 12 If an individual has an impairment that is described in the 13 listings, but either: 14 a. the individual does not exhibit one or more of the 15 findings specified in the particular listing, or b. the individual exhibits all of the findings, but one or 16 more of the findings is not as severe as specified in the particular listing, 17
18 146 Soc. Sec. Ruling 17-2p. See also Sullivan v. Zebley, 493 U.S. 521, 530 19 20 (1990) (requiring a claimant to show that the impairment meets (or 21 medically equals) all of the specified medical criteria, not just some of 22 the criteria). 23 1 then we will find that his or her impairment is medically 2 equivalent to that listing if there are other findings related to the impairment that are at least of equal medical 3 significance to the required criteria.147 4 The ALJ is obligated to consider the relevant evidence to 5 determine whether a claimant's impairments meet or equal one of the 6 specified impairments set forth in the listings.148 Generally, a 7 8 “boilerplate finding is insufficient to support a conclusion that a 9 claimant's impairment does not [meet or equal a listing].”149 However, 10 the ALJ need not recite the reasons for her step-three determination 11 under the listings portion of the decision so long as the relevant 12 evidence and underlying findings are discussed in the ALJ's decision.150 13 14
15 147 Id. 16 148 Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir.2001); 20 C.F.R. § 17 416.920(a)(4)(iii). 18 149 Lewis, 236 F.3d at 512; see also Marcia v. Sullivan, 900 F.2d 172, 19 20 176 (9th Cir.1990) (noting that the ALJ's unexplained finding at step 21 three was reversible error). 22 150 Lewis, 236 F.3d at 513. 23 1 Moreover, a boilerplate finding may be appropriate where a claimant 2 fails to set forth any evidence for the ALJ to conclude an impairment 3 could meet or equal a listing.151 4 2. The ALJ’s Findings 5 Here, the ALJ considered Listing 12.05, as it was amended 6 7 effective January 17, 2017, and failed to consider 12.05(C). Listing 8 12.05(C) provided that the listing was met if a Plaintiff could establish 9 that they met the following 2 criteria: 10 1) A valid verbal, performance, or full scale IQ of 60 to 70; 11 2) An overlaying physical or mental impairment that imposed am 12 additional and significant limitation of a work-related 13 14 function; and 15 3) Evidence demonstrating that the intellectual disorder existed 16 prior to Plaintiff attaining age 22.152 17 Listing 12.05(C) was rescinded effective January 17, 2017, and 18 19 20 21 151 Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990). 22 152 See POMS DI 34132.009. 23 1 Listing 12.05 was amended to include on 12.05(A) and 12.05(B).153 2 3. Analysis 3 Plaintiff argues that in an unpublished opinion the Court of 4 Appeals for the Ninth Circuit held that “Absent express direction from 5 Congress to the contrary, the ALJ should have continued to evaluate 6 7 [Plaintiff’s] application under the listings in effect at the them that [he] 8 filed [his] application.”154 9 The Commissioner counter argues that the agency explained that 10 the revised version of Listing 12.05 should be applied based upon the 11 date of the decision and not the application date.155 Additionally, the 12 13 14 153 See Revised Medical Criteria for Evaluating Mental Disorders, 81 15 Fed. Reg. 66138-01, available at 2016 WL 5341732 (Sept. 26, 2016). 16 154 ECF No. 8, citing Maines v Colvin, 666 F. App’x 607, 609 (9th Cir. 17 2016)(unpublished), citing Ball v Massanari, 254 F.3d 817, 820-21 (9th 18 Cir. 2001). 19 20 155 ECF No. 12, citing Revised Medical Criteria for Evaluating Mental 21 Disorders, 81 Fed. Reg. 66138-01, available at 2016 WL 5341732 (Sept. 22 26, 2016). 23 1 Commissioner cites two unpublished district court opinions.156 2 The Court notes that although the Commissioner is correct that 3 Maines is an unpublished opinion and therefore has merely persuasive 4 value, it is an unpublished opinion from a higher-level court and 5 therefore has greater weight than the two district-level opinions cited. 6 Additionally, the Court notes that in Maines, the Court ruled that 7 8 a prior version of the amended listing for endocrine disorders was to be 9 applied because it was effective on the date of the claimant’s filing. 10 That listing was amended in 2011, and the agency published notice of 11 the change to the listing with language identical to that referenced by 12 the Commissioner in his brief and contained in the agency’s publication 13 of the change to Listing 12.05. 14 15 The identical language of both publications states: 16 This means that we will use these final rules on and after their effective date in any case in which we make a 17
18 156 ECF No. 12, citing James A.K. v. Comm’r of Soc. Sec., 3:18-cv-00795- 19 20 CL, available at 2019 WL 5722203 (D. Ore. Nov. 5, 2019), Andres G. v. 21 Comm’r, Soc. Sec. Admin., 3:17-cv-00597-JE, available at 2018 WL 22 7690317 (D. Ore. Dec. 27, 2018). 23 1 determination or decision. We expect that Federal courts will review our final decisions using the rules that were in effect 2 at the time we issued the decisions. If a court reverses our final decision and remands a case for further administrative 3 proceedings after the effective date of these final rules, we 4 will apply these final rules to the entire period at issue in the decision we make after the court's remand.157 5 Because the Court of Appeals considered identical language when 6 it rendered its decision in Maines, this Court concludes that absent 7 8 further guidance from the Court of Appeals, the listing in effect at the 9 time Plaintiff filed his claim is the applicable listing. 10 While the Court is aware that there is a split in other circuits as 11 to this issue,158 and is aware that the unpublished decision in Maines 12 holds only persuasive value, the Court concludes based on the fact that 13 14
15 157 See Federal Register: Revised Medical Criteria for Evaluating 16 Endocrine Disorders. 76 FR 19692 (April 7, 2011), n. 3; see also Revised 17 Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138- 18 01 (Sept. 26, 2016). 19 20 158 See Cox v. Kijakazi, 77 F.4th 983 (D.C. Cir. 2023); McCavitt v. 21 Kijakazi, 6 F.4th 692 (7th Cir. 2021); Combs v. Comm'r of Soc. Sec., 459 22 F.3d 640 (6th Cir. 2006) (en banc). 23 1 in Maines, the Court of Appeals based its ruling on the exact question 2 posed here and a review of the exact language cited by the 3 Commissioner, that the ruling in Maines should control. 4 C. Subjective Complaints: The Court finds the issue moot. 5 Plaintiff argues the ALJ erred in his consideration of Plaintiff’s 6 subjective claims. Because the Court has remanded the case for 7 8 development of the medical record, the ALJ will be required to 9 reconsider Plaintiff’s subjective complaints. 10 D. Remand for Further Proceedings 11 Plaintiff submits a remand for payment of benefits is warranted. 12 The decision whether to remand a case for additional evidence, or 13 simply to award benefits, is within the discretion of the court.”159 When 14 15 the court reverses an ALJ’s decision for error, the court “ordinarily 16 must remand to the agency for further proceedings.”160 17
18 159 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone 19 20 v. Heckler, 761 F.2d 530 (9th Cir. 1985)). 21 160 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke 379 22 F.3d at 595 (“[T]he proper course, except in rare circumstances, is to 23 1 The Court finds that further development is necessary for a 2 proper disability determination. Here, the ALJ should properly 3 articulate his consideration of the medical evidence and medical 4 opinions and make findings at each of the five steps of the sequential 5 evaluation process, including Step Three. 6 IV. Conclusion 7 8 Accordingly, IT IS HEREBY ORDERED: 9 1. The ALJ’s nondisability decision is REVERSED, and this 10 matter is REMANDED to the Commissioner of Social 11 Security for further proceedings pursuant to sentence four 12 of 42 U.S.C. § 405(g). 13 2. The Clerk’s Office shall TERM the parties’ briefs, ECF 14 15 Nos. 8 and 12, enter JUDGMENT in favor of Plaintiff, 16 and CLOSE the case. 17 18 19 20 remand to the agency for additional investigation or explanation”); 21 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 22 2014). 23 1 IT IS SO ORDERED. The Clerk’s Office is directed to file this 2 order and provide copies to all counsel. DATED this 12 day of November, 2025. 4 Lawl I Lhe. EDWARD F. SHEA 6 Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
DISPOSITIVE ORDER - 52