United States District Court, D. Arizona
K. Duncan, United States Magistrate Judge
Kantarze appeals the Commissioner of the Social Security
Administration's decision to adopt the Administrative Law
Judge's (ALJ) ruling denying his 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. 25) Kantarze replied that his case meets
the Ninth Circuit's standard for a remand for
benefits. (Docs. 1, 26)
issued a written opinion after a hearing where Kantarze and a
Vocational Expert testified. The ALJ found that Kantarze had
two severe impairments: lumbar and cervical spine
degenerative disease and bilateral knee osteoarthritis. (Tr.
14) Because the ALJ concluded that these severe impairments
did not meet or equal a listed impairment, the ALJ evaluated
Kantarze's residual functional capacity and found that he
had the capacity to perform less-than-light work. (Tr. 15)
The ALJ further found that Kantarze could not perform any of
his past relevant work but found that he could perform work
that existed in significant numbers in the national economy.
(Tr. 18) Accordingly, the ALJ concluded that Kantarze was not
only question before the Court is the scope of the remand.
This analysis is governed by the Ninth Circuit's
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 (9th Cir. 2014). Although the parties
agree that the ALJ did not provide a legally sufficient
reason for rejecting evidence, the parties disagree 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. The parties also disagree whether the record, taken
as a whole, leaves any uncertainty that Kantarze is disabled.
treating Kantarze for several years, Gary A. Smith, M.D.,
completed two forms titled “Medical Assessment of
Ability to do Work Related Activities.” (Tr. 221,
360-62, 363-65) The September 2013 form limited Kantarze to
occasional simple grasping and fine manipulation and never
pushing/pulling of controls. (Tr. 361) The October 2014 form
limited Kantarze to occasional simple grasping and never
pushing/pulling of controls and made no recommendation for
fine manipulation limits. (Doc. 364) These limitations were
not presented to the Vocational Expert at the hearing and
were not discussed by the ALJ anywhere in the written
decision. (Tr. 12-19, 53-57)
Khumalo, M.D., evaluated Kantarze at the request of the state
agency and completed a report and a form titled
“Medical Source Statement of Ability To Do Work-Related
Activities (Physical).” (Tr. 333-38) Dr. Khumalo opined
that Kantarze could occasionally handle and frequently finger
and feel. (Tr. 337) The ALJ did not include these limitations
in her questions to the Vocational Expert and did not mention
any limitations to Kantarze's handling, fingering, and
feeling. (Tr. 53-57) In the written opinion, the ALJ gave Dr.
Khumalo's opinion “great weight” but, again,
did not mention his limitations of Kantarze's handling,
fingering, and feeling. (Tr. 337; Doc. 25 at 7)
on limited testimony by the vocational expert, it appears
that the limitations left unmentioned by the ALJ's
decision could be dispositive to an evaluation of whether
Kantarze can perform any work that exists in significant
numbers in the national economy. (Tr. 57) In other words, it
appears that including these additional limitations could
mean the difference between a finding of disability and not.
However, because this is evidence that the ALJ never
incorporated into the final decision, it is not appropriate
for this Court to review it in the first instance. Instead,
the most appropriate course of action is for the ALJ to
incorporate these limitations during a de novo
ORDERED granting the Commissioner's Motion to Remand for
Further Proceedings. (Doc. 25) 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 the case.
FURTHER ORDERED that upon remand, the Commissioner will
remand the case to an ALJ with instructions to ...