United States District Court, D. Arizona
Honorable Deborah M. Fine United States Magistrate Judge.
Rogers 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). Rogers has consistently maintained
that she meets the Ninth Circuit's standard for a remand
for benefits (Docs. 1, 21, 31).
issued a written opinion after a hearing where Rogers and a
Vocational Expert testified. The ALJ found that Rogers had
several severe impairments; as relevant here, the ALJ found
that her migraine headaches were not a severe impairment (Tr.
24). Next, the ALJ concluded that none of Rogers' severe
impairments met or equaled a listed impairment, evaluated
Rogers' residual functional capacity, and found that she
had the capacity to perform light work (Tr. 26). The ALJ
further found that Rogers could not perform any of her past
relevant work but then found that, under the
Medical-Vocational Rules, Rogers was not disabled wither or
not she had transferable job skills (Tr. 31). Accordingly,
the ALJ concluded that Rogers was not disabled (Tr. 32).
of Review. The 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 Rogers is disabled. Id.
Commissioner moved to remand because the ALJ opinion should
have acknowledged that the records from Rogers' treating
physician, Farrukh Qureshi, M.D., documented “some
headaches on a sustained basis, which necessitates
reconsideration of the ALJ's finding that Plaintiff's
migraines were not a severe impairment and did not result in
any functional limitations” (Doc. 28 at 6). The
Commissioner raises other arguments to justify a remand for
further findings, including a conflict between Rogers'
treatment records and Dr. Qureshi's opinion.
Specifically, the Commissioner notes that Dr. Qureshi's
treatment records first documented her migraines in December
2015, when she reported that she had been having migraine
headaches twice a month; in February 2016, she reported to
Dr. Qureshi that she had had two months without headaches but
they had started again; and in April 2016, she reported that
she had seven headaches a month (Doc. 28 at 8; Tr. 849, 851,
879, 882-83). The Commissioner argues that these fluctuating
and short-term reports are not readily reconciled with Dr.
Qureshi's opinion that Rogers' headaches would result
in her missing at least five days of work each month and that
she has seven or eight migraines a month.
put, the Commissioner's argument is that the record has
not been fully or thoroughly developed. The Court agrees.
Because there are undeveloped factual matters that the ALJ
never addressed in 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
agrees that the ALJ opinion should have, but did not,
acknowledge her sustained headaches. But she does not address
the discrepancy between Dr. Qureshi's medical records and
his opinion. Instead, she argues that the Commissioner has
failed to “address the fundamental legal error of
agency reliance upon opinions from nonexamining state agency
physicians to reject treating medical opinion evidence”
(Doc. 31 at 6). The propriety of the Commissioner's use
of reviewing physicians is outside the scope of this matter.
Rogers also argues that the Commissioner's hypothetical
arguments about Rogers' recent improvement is not a
sufficient basis for a remand (Doc. 31 at 7). The Court
agrees and does not remand this matter on that
IS ORDERED remanding this matter for further
proceedings. 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.
IS FURTHER ORDERED that upon remand, the
Commissioner will remand the case to an ALJ with instructions
to issue a new decision that includes:
review of all the opinion evidence and limitations described
by the ...