Gageby v. Dudek

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 9, 2025
• Docket: 24-2595
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KARLA KAY GAGEBY, No. 24-2595 D.C. No. Plaintiff - Appellant, 2:23-cv-00030-JTJ v. MEMORANDUM* LELAND DUDEK, Acting Commissioner of Social Security,

Defendant - Appellee.

Appeal from the United States District Court for the District of Montana John T. Johnston, Magistrate Judge, Presiding

Argued and Submitted April 8, 2025 San Francisco, California

Before: SCHROEDER, PAEZ, and MILLER, Circuit Judges.

Karla Kay Gageby (“Gageby”) appeals the district court’s judgment

affirming the Commissioner of Social Security’s denial of her application for

disability insurance benefits under Title II of the Social Security Act. We have

jurisdiction under 28 U.S.C. § 1291. We reverse and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Gageby argues that the Administrative Law Judge (“ALJ”) erred in

downgrading her limitations in maintaining concentration, persistence, and pace

from “moderate” to “mild” after a remand order from the district court.1 We agree.

The ALJ used nearly identical explanations to reach two different decisions. The

ALJ did not explain why the justifications for her prior decision following the

Psychiatric Review Technique, see 20 C.F.R. § 404.1520a, were no longer

persuasive or how the new evidence introduced or considered for the first time on

remand could justify downgrading Gageby’s limitations. Nor does the district

court’s remand decision explain the change: the district court held that substantial

evidence supported the ALJ’s initial finding, and it remanded solely for the ALJ to

evaluate Dr. Campion’s opinion for the first time.

ALJs must explain their decisions, including changes in findings. See

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)

(“Because the ‘grounds upon which an administrative order must be judged are

those upon which the record discloses that its action was based,’ the agency must

explain its reasoning.” (cleaned up) (quoting S.E.C. v. Chenery Corp., 318 U.S. 80,

87 (1943))); see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.

1 The issue was “raised sufficiently for the [district] court to rule on it” and therefore has not been forfeited. Cornhusker Cas. Ins. Co. v. Kachman, 553 F.3d 1187, 1191–92 (9th Cir. 2009) (quoting In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989)).

2 24-2595 Auto. Ins. Co., 463 U.S. 29, 42 (1983) (requiring “an agency changing its course”

to “supply reasoned analysis for the change”). The ALJ’s failure to explain why it

changed Gageby’s concentration limitations on remand is therefore legal error.

The ALJ’s error was not harmless, and remand to the agency is required.

“Moderate” limitations in concentration, persistence, and pace could affect

Gageby’s residual functional capacity (“RFC”), which presently contemplates that

Gageby can “maintain attention, concentration, persistence, and pace” for “8-hour

workdays and 40-hour workweeks.” The ALJ’s error also affected her assessment

of Dr. Campion’s medical opinion. In assigning weight to a medical opinion, the

ALJ was required to consider how “consistent a medical opinion is with the record

as a whole.” 20 C.F.R. § 404.1527(c)(4).2 Dr. Campion opined, among other

limitations, that Gageby had “moderate” limitations in maintaining concentration,

persistence, and pace. In assigning Dr. Campion’s opinion minimal weight, the

ALJ reasoned that “moderate limitations are not supported by the record as a

whole.” But in 2018, the ALJ found that the record supported finding moderate

limitations. Therefore, the ALJ’s evaluation of Dr. Campion’s medical opinion

appears to rely at least in part on her error in changing without justification

Gageby’s limitations in maintaining concentration, persistence, and pace. As a

2 Because Gageby filed her claim before March 27, 2017, 20 C.F.R. § 404.1527 governs the ALJ’s evaluation of medical opinions.

3 24-2595 result, the ALJ never grappled with the other limitations that Dr. Campion

identified, including his finding that Gageby was “moderately limited” in her

“ability to understand and remember detailed instructions” and in her “ability to

complete a normal workday and workweek without interruptions.” Because these

limitations could have affected her ultimate disability determination, the error is

not harmless. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). We

therefore remand to the agency for further proceedings.

2. Because the ALJ must reevaluate Dr. Campion’s medical opinion in any

case, we need not address Gageby’s other arguments that the ALJ erred in

evaluating his medical opinion.

REVERSED AND REMANDED.

4 24-2595