United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff Tammy Klatz's
(“Plaintiff”) appeal from the Social Security
Commissioner's (“Commissioner”) finding that
Plaintiff was not disabled from her alleged onset date of
June 20, 2012 until March 20, 2014. (Docs. 1 & 22). Both
Plaintiff and the Commissioner agree that the Administrative
Law Judge (“ALJ”) erred; therefore, the only
question before the Court is whether it should remand for
further proceedings or for an award of benefits.
25, 2012, Plaintiff protectively filed for Title II
disability benefits alleging a disability onset of June 20,
2012. (Doc. 17 (citing AR 218-19)). After holding a hearing,
the ALJ issued an unfavorable decision. (Id. (citing
AR 38-48, 95-108)). Plaintiff appealed the ALJ's decision
to the Appeals Council, who vacated the ALJ's decision
and remanded the case. (Id. (citing AR 109-114)). On
remand, the ALJ was:
to update the record with additional available evidence
relevant to the claimant's irritable bowel syndrome, give
further consideration to the claimant's maximum residual
functional capacity, reassess the claimant's need for
unlimited access to a restroom in proximity, indicate with
specificity the time the claimant may need to be in the
restroom for each break, reassess the step four finding that
the claimant is capable of performing her past relevant work,
and obtain evidence from a vocational expert.
remand, the ALJ held a second hearing, at which Plaintiff
testified that she returned to “work after undergoing a
permanent end colostomy” and, as a result,
“requested a closed period of disability from her
alleged onset date of June 20, 2012 through April 20,
2015.” (Id. (citing AR 49-69)). The ALJ's
decision was partially favorable, “establishing
disability from March 20, 2014 through April 20, 2015.”
(Id. (citing AR 7-32)). Following Plaintiff's
unsuccessful intra-agency appeals, the Commissioner adopted
the ALJ's decision. (Id. (citing AR 1-6, 217,
appealed to this Court, arguing that the ALJ erred and that
the appropriate remedy was remand for an award of benefits
for the period of June 20, 2012 through March 19, 2014 (for
which the ALJ denied benefits), in addition to the March 20,
2014 to April 20, 2015 period (for which the ALJ awarded
benefits). (Id.) The Commissioner agrees that the
ALJ erred, and that the case should be remanded, but contends
that the ALJ should conduct further proceedings, rather than
award benefits. (Doc. 21).
where an ALJ errs in denying benefits, the Court remands for
further proceedings. Treichler v. Comm'r of Soc. Sec.
Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). In
“rare circumstances, ” however, the Court may
remand for an award of benefits. Id. (quoting
Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004)
(internal quotation marks omitted)). Under the
“credit-as-true” rule, remand for award of
benefits is appropriate where three factors are satisfied.
Id. at 1100-01. First, the ALJ must have
“failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical
opinion.” Id. Second, there must not be
“outstanding issues that must be resolved before a
determination of disability can be made” and
“further administrative proceedings . . . [must not be]
useful.” Id. at 1101. “Administrative
proceedings are generally useful where the record has [not]
been fully developed, there is a need to resolve conflicts
and ambiguities, or the presentation of further evidence . .
. may well prove enlightening in light of the passage of
time.” Id. (alterations in original) (internal
quotation marks and citations omitted). Third, if both prior
factors are satisfied, the Court will find “the
relevant testimony credible as a matter of law, ” and
then must “determine whether the record, taken as a
whole, leaves not the slightest uncertainty as to the outcome
of the proceeding.” Id. (internal quotation
marks and citations omitted). If all three factors are
satisfied, the Court then has the discretion to remand for an
award of benefits or for further proceedings. Id. at
conducting this analysis, the Court will “review only
issues which are argued specifically and distinctly in a
party's opening brief.” Indep. Towers of Wash.
v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)
(internal quotation marks and citation omitted); accord
Klain v. Comm'r of Soc. Sec. Admin., No.
CV-16-04390-PHX-DGC, 2017 WL 6276370, at *2 (D. Ariz. Dec.
11, 2017) (compiling district court cases applying the
Independent Towers standard to social security
parties agree that this case should be remanded to the ALJ.
The only issue in dispute is whether it should be remanded
for further proceedings, as advanced by the Commissioner, or
remanded for an award of benefits, as argued by Plaintiff.
Commissioner contends that Plaintiff waived her claim that
the case should be remanded for an award of benefits because
her opening brief failed to argue that further proceedings
would not be useful. (Doc. 21 at 4-5). Plaintiff responds by
arguing that “if there were any gaps or conflicts in
the record, [P]laintiff would not argue that [remand for