United States District Court, D. Arizona
ORDER
Honorable John J. Tuchi, United States District Judge
At
issue are Plaintiff Gerardo Samaniego Martinez's Opening
Brief (Doc. 12), Defendant Commissioner of Social Security
Administration's (“SSA”) responsive brief
requesting remand (Doc. 16), and Plaintiff's Reply (Doc.
17).
An
Administrative Law Judge (“ALJ”) denied
Plaintiff's Application for a Period of Disability and
Disability Insurance Benefits under Title II of the Social
Security Act (“the Act”) on May 13, 2016 (Doc.
12, R. at 19-31), and the Appeals Council upheld that
decision on October 10, 2017 (R. at 1-4). After the ALJ
rendered her decision, Plaintiff provided a letter to SSA
from his former employer stating that he performed his prior
work for only two months and that the employer terminated him
“due to poor attendance, ” and the Appeals
Council made that letter part of the record. (R. at 5,
261-70.)
After
Plaintiff appealed the ALJ's decision to this Court and
filed an Opening Brief (Doc. 12), Defendant filed a Response
(Doc. 16) conceding that the ALJ made certain errors in
reaching her decision and moving to remand for further
development of the record and because the present record
leaves doubt as to whether Plaintiff is disabled under the
Act. In his Reply (Doc. 17), Plaintiff argues that no
outstanding issues remain and the Court should find Plaintiff
disabled under the Act and remand for a calculation of
benefits.
Plaintiff
asks that the Court apply the “credit-as-true”
rule, which would result in remand of Plaintiff's case
for payment of benefits rather than further proceedings.
(Pl.'s Resp. to Mot. at 1.) The credit-as-true rule only
applies in cases that raise “rare circumstances”
that permit the Court to depart from the ordinary remand rule
under which the case is remanded for additional investigation
or explanation. Treichler v. Comm'r of Soc. Sec.
Admin., 775 F.3d 1090, 1099-102 (9th Cir. 2014). These
rare circumstances arise when three elements are present.
First, the ALJ must fail to provide legally sufficient
reasons for rejecting medical evidence. Id. at 1100.
Second, the record must be fully developed, there must be no
outstanding issues that must be resolved before a
determination of disability can be made, and further
administrative proceedings would not be useful. Id.
at 1101. Further proceedings are considered useful when there
are conflicts and ambiguities that must be resolved.
Id. Third, if the above elements are met, the Court
may “find[] the relevant testimony credible as a matter
of law . . . and then determine whether the record, taken as
a whole, leaves ‘not the slightest uncertainty as to
the outcome of [the] proceeding.'” Id.
(citations omitted).
The
Court has reviewed the record and agrees with Defendant that
the record is not fully developed and that uncertainty
remains as to whether Plaintiff is disabled under the Act.
First, in her decision, the ALJ indicated she gave
“great weight” to the findings of treating
physician Dr. Szpaizman, but the ALJ did not incorporate into
Plaintiff's residual functional capacity
(“RFC”) any limitation in the time he can
continuously sit, even though Dr. Szpaizman stated Plaintiff
could only sit for an hour at a time (R. at 892). Remand is
necessary for the ALJ to determine the appropriate sitting
limitation in Plaintiff's RFC based on substantial
evidence in the record. Contrary to Plaintiff's argument,
it is unclear if the ALJ will include the one-hour sitting
limitation indicated on Dr. Szpaizman's assessment or,
considering all the evidence, something else.
Second,
the ALJ determined that Plaintiff had past relevant work as a
“printed circuit board layout taper” based on the
record before her. (R. at 29.) Evidence Plaintiff produced
after the ALJ issued her decision indicates Plaintiff worked
as a taper for only two months, which is insufficient to
qualify as past relevant work and conflicts with the evidence
the ALJ considered. See Gatliff v. Comm'r of Soc.
Sec. Admin., 172 F.3d 690, 694 (9th Cir. 1999) (noting
two months of past work is not past relevant work). The ALJ
must make a new determination regarding whether Plaintiff had
past relevant work and, if not, must proceed to step five of
the disability analysis-a determination if there is other
work in the national economy that Plaintiff can perform.
Because the ALJ determined based on incomplete information
that Plaintiff had past relevant work, she did not have the
opportunity to conduct a step five analysis.
In sum,
because of the uncertainties left by the inconsistencies and
missing evidence in the record, uncertainty also remains as
to whether Plaintiff is disabled under the Act. On remand,
the ALJ must (1) reanalyze Plaintiff's RFC, (2) consider
Plaintiff's new evidence and determine whether he
performed any past relevant work, and, (3) if not, determine
whether Plaintiff can perform other work in the national
economy, taking additional vocational expert testimony if
needed.
For all
the foregoing reasons, the Court will remand this matter to
the ALJ for further development of the record and a
disability determination.
IT IS
THEREFORE ORDERED remanding this matter to the Social
Security Administration for further proceedings consistent
with this Order. Specifically, the ALJ must (1) reanalyze
Plaintiff's residual functional capacity, (2) consider
Plaintiff's new evidence and determine whether he
performed any past relevant work, and, (3) if not, determine
whether Plaintiff can perform other work in the national
economy, taking additional vocational expert testimony if
needed.
IT IS
FURTHER ORDERED directing the Clerk of Court to enter
judgment ...