United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge.
before the Court is Plaintiff Jeffrey James Hamby's
appeal of the Social Security Administration's decision
to deny disability benefits and supplemental security income.
(Doc. 1). Accordingly, the Court vacates the ALJ's
decision and remands for further proceedings.
Hamby suffered various accidents that caused severe trauma to
his left leg in 2008 and 2009. (Tr. 416, 442, 482-83). In the
intervening year, he struggled with substance abuse and
continued to experience problems with his left leg. Mr. Hamby
applied for disability benefits on July 26, 2012, and he
later amended his request to allege an onset of disability on
January 1, 2013. (Tr. 18). Administrative Law Judge
(“ALJ”) Randolph Shum denied Mr. Hamby's
request after a hearing in November 2014. (Tr. 18- 29).
evaluating Mr. Hamby's disability, the ALJ undertook the
five-step sequential evaluation for determining
disability. (Tr. 20-29). At step one, the ALJ found
that Mr. Hamby had not had earnings since 2011 and had not
engaged in substantial gainful activity since 2003. (Tr. 21).
At step two, the ALJ determined that Mr. Hamby suffered from
the following severe impairments: degenerative changes in the
lumbar spine and knee. (Tr. 21). At step three, the ALJ
determined that none of these impairments, either alone or in
combination, met or equaled any of the Social Security
Administration's listed impairments. (Tr. 23-24). At step
four, the ALJ determined Mr. Hamby's residual functional
capacity (“RFC”),  concluding that he could
“perform light work” as defined in 20 C.F.R.
§ 404.1567(b), with the some additional exceptions. (Tr.
24). The ALJ also found that Mr. Hamby's RFC did not
prohibit him from performing his past relevant work as an
automobile sales person. (Tr. 28).
making these findings, the ALJ considered Drs. Baugh and
Wilkins, both consultative examining physicians, who opined
that Mr. Hamby could perform light work, and the ALJ afforded
their opinion moderate weight because they were slightly more
restrictive than the medical evidence supported. (Tr. 26-27).
Additionally, the ALJ considered the opinion of two
non-examining medical consultants who also opined that Mr.
Hamby could perform at least light work. (Tr. 27). The ALJ
failed to consider the opinion of treating physician Dr.
Venger, who stated limitations more restrictive than those in
the RFC. (Tr. 20-29, Tr. 1002-04).
Appeals Council denied review of the ALJ decision. (Tr. 4-9).
Mr. Hamby subsequently filed this complaint in federal court
and requested a review of the ALJ's denial of benefits.
(Doc. 1). Defendant Commissioner conceded that the ALJ erred
in his decision to deny the Claimant benefits because he
failed to consider Dr. Venger's opinion. (Doc. 21). For
that reason, the parties dispute only whether the Court
should remand for additional proceedings or remand for an
award of benefits.
Standard of Review
Social Security Act permits a federal court to set aside a
denial of disability benefits only if that denial is either
unsupported by substantial evidence or based on legal error.
42 U.S.C. § 405(g); Thomas v. Barnhart, 278
F.3d 947, 954 (9th Cir. 2002). When, as here, the
Commissioner concedes that the ALJ's decision is
unsupported by substantial evidence, the Act “makes
clear that courts are empowered to . . . modify[ ] or reverse
a decision by the Commissioner ‘with or without
remanding the case for a rehearing.'” Garrison
v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014) (quoting
§ 405(g)). “[T]he proper course, except in rare
circumstances, is to remand to the agency for additional
investigation or explanation.” Treichler v.
Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th
Cir. 2014) (citation omitted). But, the Ninth Circuit, like
every other circuit, recognizes that “in appropriate
circumstances courts are free to reverse and remand a
determination by the Commissioner with instructions to
calculate and award benefits.” Garrison, 759
F.3d at 1019 (citing cases from every circuit).
for an award of benefits is not at the full discretion of the
reviewing court. Rather, the Ninth Circuit follows the
“three-part credit-as-true standard, each part of which
must be satisfied in order for a court to remand to an ALJ
with instructions to calculate and award benefits[.]”
Id. at 1020. The Claimant must establish: first,
that the ALJ failed to provide legally sufficient reasons for
rejecting evidence; second, that the record has been fully
developed and further administrative proceedings would serve
no useful purpose; and third, that if the improperly
discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand. See
Treichler, 775 F.3d at 1100-01 (citing
Garrison, 759 F.3d at 1020). Before moving from the
second step to the third step, a reviewing court must assess
whether there are outstanding issues requiring resolution
before considering whether to credit improperly discredited
evidence as true. Treichler, 775 F.3d at 1105.
three conditions are met, the reviewing court may remand for
an award of benefits. Id. at 1101. Nonetheless, the
reviewing court retains flexibility in determining the
appropriate remedy if the record as a whole still creates
“serious doubt as to whether the claimant is, in fact,
disabled[.]” Id. at 1107 (citing
Garrison, 759 F.3d at 1021).
first step of the credit-as-true test is whether the ALJ
failed to provide legally sufficient reasons for rejecting
evidence. Both parties agree that the ALJ's failure to