United States District Court, D. Arizona
K. Duncan United States Magistrate Judge
Marie Dinallo appeals the Commissioner of the Social Security
Administration's decision to adopt the Administrative Law
Judge's (ALJ) ruling denying her claim for disability
insurance benefits under Title II of the Social Security Act.
This Court has jurisdiction pursuant to 42 U.S.C. §
405(g) and, with the parties consent to Magistrate Judge
jurisdiction, pursuant to 28 U.S.C. § 636(c).
Commissioner agrees that the ALJ's decision was not
supported by substantial evidence but argues that the record
contains outstanding evidentiary conflicts and so the
appropriate remedy is to remand this matter for further
proceedings. (Doc. 28) Dinallo replied that her case meets
the Ninth Circuit's standard for a remand for benefits.
only question before the Court is the scope of the remand.
The Ninth Circuit has established a three-part test for
evaluating the difference between a remand for benefits and a
remand for further proceedings. Treichler v. Comm'r
of Soc. Sec., 775 F.3d 1090 (9th Cir. 2014);
Garrison v. Colvin, 759 F.3d 995 (9thCir.
2014). One of the three prongs requires this Court to
determine whether the record has been fully or thoroughly
developed such that there are no outstanding issues to
resolve and so further administrative purposes would serve no
useful purpose. Treichler, 775 U.S. at 1100;
Garrison, 759 at 1020.
Commissioner concedes that the ALJ should have, but
“did not[, ] evaluate the December 2013 opinion of
treating hand surgeon, Gary Purcell, M.D.” who
described Dinallo's limitations on a check-the-box form
and whose opinion conflicts with the opinion of a State
agency physician. (Doc. 28 at 4:7-8) The Commissioner also
conceded that the ALJ used improper reasoning to reject the
opinion of Kurt Giles, P.A. (Doc. 28 at 5) Dinallo argues
that a remand to review this medical evidence would not be
useful. (Doc. 33 at 3) The Court disagrees. The opinion of
Dr. Purcell, PA Giles, and the State agency physician must be
reconciled and that is appropriately a determination that
should be made by the ALJ in the first instance.
Brown-Hunter v. Colvin, 806 F.3d 487, 496
(9th Cir. 2015). Accordingly, a remand for further
proceedings is appropriate to resolve this conflict.
Dominguez v. Colvin, 808 F.3d 403, 409
(9th Cir. 2015) (upholding remand for further
proceedings when record contained outstanding medical record
parties raise additional arguments. Dinallo argues that there
are several other errors in the record and that these entitle
her to a remand for benefits. However, benefits are awarded for
disability, “not the agency's legal error.”
Brown-Hunter, 806 F.3d at 495. The Commissioner
argues that the scope of remand should both be limited
because Dinallo's other allegations of error are not
well-taken but should also be expanded to include an
evaluation of Dinallo's narcotic and alcohol use. (Doc.
28 at 5, 8) As Dinallo notes, review on remand is generally
de novo. (Doc. 33 at 6, n.4) Such a remand is
ORDERED that the Commissioner's decision is vacated and
remanded for further proceedings consistent with this Order.
The Clerk of the Court shall enter judgment accordingly and
terminate this case.
FURTHER ORDERED that upon remand, the Commissioner will
remand the case to an ALJ with instructions to issue a new
decision that includes, but is not limited to:
a. an assessment of the medical opinions of record that
includes an explanation of the weight given to the different
b. an assessment of Dinallo's credibility that addresses
and resolves ambiguities in the record;
c. an evaluation of Dinallo's residual functional
d. a determination of the remaining steps in the sequential
process, including whether Dinallo can perform his past
relevant work or whether other jobs exist in ...