Stuck v. Commissioner of Social Security

Opinion

UNITED STATES DISTRICT COURT AT SEATTLE TAD S., Plaintiff, CASE NO. C24-5657-BAT v. ORDER REVERSING AND REMANDING FOR FURTHER COMMISSIONER OF SOCIAL SECURITY, ADMINISTRATIVE PROCEEDINGS Defendant. Plaintiff Tad S. appeals the denial of his application for Supplemental Security Income, arguing the ALJ misevaluated the medical evidence and plaintiff’s testimony, and the resulting residual functional capacity finding and finding of nondisability are erroneous; he seeks remand for an award of benefits or, in the alternative, for further administrative proceedings. Dkt. 15. The Commissioner concedes the ALJ committed harmful error but contends a remand for further administrative proceedings is the appropriate remedy. Dkt. 23. The Court REVERSES the Commissioner’s final decision and REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). Plaintiff is currently 60 years old and was 54 years old on the date he filed the application; he has a high school education and has no past relevant work. Tr. 44-45. He applied for benefits with a protective filing date of March 19, 2019, alleging disability since January 1, 2007. Tr. 31-32, 346. After his application was denied initially and on reconsideration, the ALJ held a hearing and, on April 27, 2021, issued a decision finding plaintiff not disabled. Tr. 185-98. The Appeals Council reversed that decision, remanding the case to the ALJ to issue a new

decision. Tr. 205-06. The ALJ held a second hearing and, on October 11, 2023, issued a second decision finding plaintiff not disabled. Tr. 31-46. Plaintiff now seeks review of the ALJ’s October 2023 decision. Utilizing the five-step disability evaluation process,1 the ALJ found plaintiff had not engaged in substantial gainful activity since the application date; he had the following severe impairments: degenerative disc disease of the lumbar spine, bipolar disorder, anxiety, and PTSD; and these impairments did not meet or equal the requirements of a listed impairment. Tr. 34-35. The ALJ found plaintiff had the residual functional capacity to perform medium work except he can occasionally climb ladders, ropes, or scaffolds; he can understand, remember, and apply

detailed but not complex instructions; he cannot perform in a fast-paced production type environment; and he cannot interact with the general public and can occasionally interact with coworkers and supervisors. Tr. 37. The ALJ found plaintiff has no past relevant work but, as there are jobs that exist in significant numbers in the national economy that plaintiff could perform, he was not disabled. Tr. 44-46. The Court will reverse the ALJ’s decision only if it was not supported by substantial evidence in the record as a whole or if the ALJ applied the wrong legal standard. Molina v.

1 20 C.F.R. §§ 404.1520, 416.920. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The ALJ’s decision may not be reversed on account of an error that is harmless. Id. at 1111. The Court may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Where the evidence is susceptible to more than one rational interpretation, the

Court must uphold the Commissioner’s interpretation. Id. When a district court reverses an ALJ decision, it has discretion to either remand the case for further administrative proceedings or to remand for an award of benefits. 42 U.S.C. § 405(g); Harman v. Apfel, 211 F.3d 1172, 1177-78 (9th Cir. 2000). Where there are outstanding issues that must be resolved and it is not clear from the record an ALJ would be required to find a claimant disabled if all the evidence were properly evaluated, remand for further proceedings is appropriate. Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012). The Court may remand for an award of benefits where (1) the record has been fully developed and further administrative proceedings would serve no useful purpose, (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or

medical opinion, and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Courts have flexibility in applying this rule and may instead remand for further proceedings where the record as a whole “creates serious doubt that a claimant is, in fact, disabled.” Id. at 1021. The Court finds, if the improperly discredited evidence were credited as true, the ALJ would not be required to find plaintiff disabled on remand. Therefore, remand for further administrative proceedings is the appropriate remedy in this case. A. Medical Evidence Plaintiff argues the ALJ failed to properly evaluate the opinions of Keith Kreuger, Ph.D., Alexander Patterson, Psy.D., Peter Weiss, Ph.D., Quoc Ho, M.D., and Terilee Wingate, Ph.D., along with a litany of other medical records that plaintiff asserts contain clinical findings

consistent with these opinions; the prior administrative medical findings of Norman Staley, M.D., J.D. Fitterer, M.D., Vincent Gollogly, Ph.D., and Richard Borton, Ph.D.; and the opinion of Kimberly Wheeler, Ph.D., submitted to the Appeals Council after the ALJ’s decision. Dkt. 15 at 3-11. The Commissioner concedes error but argues further administrative proceedings are warranted to assess this evidence because these opinions and prior administrative findings conflict with each other, and it is the province of the ALJ, not this Court, to resolve conflicts and ambiguities in the record. Dkt. 23 at 4. The Commissioner further argues that several of the opinions use ambiguous terms such as “difficulty,” “mild,” “moderate,” and “marked,” and it is the ALJ’s responsibility to translate and incorporate such findings into a succinct RFC finding.

Id. at 5. And with respect to specific opinions, the Commissioner asserts “there are sound reasons why an ALJ may take a different view of the evidence,” giving reasons why an ALJ may find the opinions unpersuasive n remand. Id. at 6-12. Plaintiff argues in reply the conflicts the Commissioner identifies do not actually justify or necessitate remand for another hearing, and many of the Commissioner’s arguments as to the reasons why an ALJ could reject the opinions are improper post hoc rationales the Court cannot rely on. Dkt. 24 at 2. Plaintiff asserts the Court is evaluating the ALJ’s current decision, not the possible decision of a new ALJ at a new hearing. Dkt 24 at 4-6. And plaintiff argues the fact the non-examining doctors’ findings conflict with the opinions of Dr. Weiss and Dr. Wingate do not preclude this Court from directing an award of benefits, asserting that every case that requires an ALJ hearing contains non-examiners’ findings that support non-disability and that the Commissioner is therefore essentially arguing that the Court could never exercise its discretion to direct an award of benefits. Dkt. 24 at 6.

Both sides make arguments that misstate the nature of the Court’s inquiry. The Court need not determine whether an ALJ might validly find the opinions unpersuasive on remand. Nor must the Court assess whether the reasons the Commissioner proposes are post hoc rationalizations. Instead, the Court is evaluating whether, if the disputed evidence is credited as true, an ALJ would be required to find plaintiff disabled on remand. Garrison, 759 F.3d at 1020. Turning to that question, the Court finds there exist conflicts in the evidence that preclude an immediate award of benefits. The doctors whose opinions plaintiff asserts were erroneously evaluated expressed a range of opinions, ranging from none or mild limitations to marked or even severe limitations. For example, with respect to plaintiff’s mental limitations, Dr. Kreuger opined plaintiff had none, mild, or moderate limitations in all areas of mental functioning (Tr.

57-58), Dr. Patterson opined plaintiff’s ability to function in the work setting was moderately impaired, and while he may have difficulty with attendance, timeliness, and managing work relationships and work-related stress, he would likely not have difficulty with completing work- related tasks (Tr. 570), and Dr. Gollogly and Dr. Borton opined plaintiff had mild or moderate limitations (Tr. 158, 173). Dr. Wingate, on the other hand, opined plaintiff had marked limitations in numerous areas and that the overall severity of his limitations was marked (Tr. 951), and Dr. Wheeler likewise opined plaintiff had marked limitations in numerous areas and that the overall severity of his limitations was marked (Tr. 19). And in contrast with those opinions, Dr. Mitchell opined plaintiff had numerous severe limitations. Tr. 545. With respect to plaintiff’s physical impairments, while Dr. Ho opined plaintiff could perform less than sedentary work (Tr. 644-46), Dr. Staley and Dr. Fitterer opined plaintiff could perform light work (Tr. 160- 62, 175-76). If all these opinions were credited as true, an ALJ would not be able to find plaintiff

disabled without first translating these varying and in some cases conflicting opinions into a single, succinct RFC finding and determining whether there are jobs that exist in significant numbers in the national economy a person with that RFC could perform. The Court cannot say the only possible outcome for an ALJ undertaking this task would be to find plaintiff disabled. Plaintiff’s assertion the conflicts the Commissioner identifies should not preclude an award of benefits asks this Court to do the very thing it cannot: weigh the evidence and resolve conflicts, in this case in favor of the plaintiff. And even if the Court agreed with plaintiff’s assertion about the nature of non-examiners’ findings and their effect on the Court’s ability to direct an award of benefits, conflicts among the other medical opinions would still preclude a finding of disability. In other words, the Court cannot say, without making findings of fact and

weighing the evidence, that the ALJ would be required to find plaintiff disabled if these opinions were credited as true. Accordingly, this case does not meet the requirements for an immediate award of benefits. B. Plaintiff’s Testimony Plaintiff also argues the ALJ failed to properly evaluate his testimony, arguing the ALJ’s errors in assessing the medical evidence tainted his evaluation of plaintiff’s testimony; the ALJ failed to identify meaningful inconsistencies between plaintiff’s testimony and the medical evidence and provided a selective summary of the medical evidence; the ALJ improperly rejected his testimony based solely on the objective evidence; and the ALJ relied on plaintiff’s activities that were not transferrable to work and were not inconsistent with his testimony. Dkt. 15 at 11-13. The Commissioner contends the record contains conflicting evidence regarding plaintiff’s subjective complaints and that on remand the ALJ could find plaintiff’s testimony unpersuasive,

giving reasons the ALJ might do so. Dkt. 13 at 12-16. The Commissioner again misstates the issue before the Court. The Court must assess whether the ALJ would be required to find plaintiff disabled on remand if plaintiff’s testimony were credited as true, not possible reasons the ALJ could find plaintiff’s testimony unpersuasive. Turning to that question, the Court agrees with plaintiff the ALJ’s errors in assessing the medical evidence undermine the ALJ’s assessment of plaintiff’s testimony, which relied in part on an assessment of the consistency between his testimony and the medical evidence. However, the Court cannot say that if plaintiff’s testimony were credited as true, the ALJ would be required to find plaintiff disabled on remand. Rather, given the conflicts among the medical opinions discussed above and the possible effects the resolution of these conflicts may have on

the assessment of plaintiff’s testimony, the Court concludes it is necessary for the ALJ to reevaluate plaintiff’s testimony in view of the ALJ’s reevaluation of the medical opinions. The ALJ must consider all the evidence, resolve the conflicts and weigh the evidence in light of those considerations, and issue a new decision supported by all the evidence in the record. C. Protective Filing Date In 2015, plaintiff filed an application for disability benefits that was denied at the administrative level in 2019; this denial was affirmed on judicial review by this Court and by the Court of Appeals for the Ninth Circuit. Tr. 119, 146; Stuck v. Saul, 843 Fed. Appx. 970 (9th Cir. Apr. 15, 2021); Stuck v. Comm’r of Soc. Sec., Case No. C19-5410-MLP, Dkt. 14 (W.D. Wash. Jan. 21, 2020). As part of the application now before this Court, plaintiff sought to amend his protective filing date to June 7, 2018, the date plaintiff requested Appeals Council review of the prior ALJ decision, which was pending before the Ninth Circuit at the time the ALJ issued the decision at hand. Tr. 96, 441, 473-74. The ALJ denied that request, leaving March 19, 2019, as

the protective filing date for this claim. Tr. 32. Plaintiff noted these facts in his opening brief but did not assign error to or present argument on the issue. Dkt. 15 at 2, n.1. The Commissioner asserts plaintiff thus forfeited his opportunity to challenge the ALJ’s denial of his request to amend his protective filing date. Dkt. 23 at 17. In reply, plaintiff asserts the Commissioner did not provide any justification for refusing to honor his request to amend his protective filing date and this refusal was arbitrary and capricious. Dkt. 24 at 3. Plaintiff acknowledges he did not present argument on the issue in his opening brief but asks the Court to order the ALJ to consider the issue if it remands the case for further proceedings. Id. The Court finds because plaintiff did not assign error to or present arguments on this

issue in his opening brief, but instead presented arguments only in his reply brief, he has waived this issue. See Bazuaye v. I.N.S., 79 F.3d 118, 120 (9th Cir. 1996); Center for Sierra Nevada Conservation v. U.S. Forest Service, 832 F.Supp.2d 1138, 1164, n. 4 (9th Cir. 2011). The Court will therefore not consider the issue and will not direct the ALJ to consider it on remand. For the foregoing reasons, the Commissioner’s final decision is REVERSED, and this case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). On remand, the ALJ shall reevaluate the medical opinions, the prior administrative findings, and plaintiff’s testimony, and shall offer plaintiff a new hearing, further develop the record, and redo the five-step disability evaluation process as the ALJ deems necessary and appropriate to make a new decision. DATED this 21st day of March, 2025. A

BRIAN A. TSUCHIDA United States Magistrate Judge