Tsonis v. Kijakazi

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MARIA ANN T.,1
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.
Case No. 1:22-cv-00083-JMK
DECISION AND ORDER
On or about February 19, 2013, Maria Ann T. (“Plaintiff”) protectively filed an
application for supplemental security income (“SSI”) under Title XVI of the Social Security
Act (“the Act”),2 alleging disability beginning January 31, 2013.3 Plaintiff has exhausted
1 Plaintiff’s name is partially redacted in accordance with Fed. R. Civ. P. 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case Management of the Judicial
Conference of the United States. 	See Memorandum, Committee on Court Administration and
Case 	Management 	of 	the 	Judicial 	Conference 	of 	the 	United 	States 	(May 	1, 	2018),
https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 Title II of the Social Security Act provides benefits to disabled individuals who are insured by
virtue of working and paying Federal Insurance Contributions Act (FICA) taxes for a certain
amount of time. Title XVI of the Social Security Act is a needs-based program funded by general
tax revenues designed to help disabled individuals who have low or no income. Plaintiff brings a
claim under Title XVI. Although each program is governed by a separate set of regulations, the
regulations governing disability determinations are substantially the same for both programs.
Compare 20 C.F.R. §§ 404.1501–1599 (governing disability determinations under Title II) with 20
C.F.R. §§ 416.901–999d (governing disability determinations under Title XVI). For convenience,
the Court cites the regulations governing disability determinations under both titles.
3 Administrative Record (“A.R.”) 198. 	The SSI application summary, not the application itself,
appears in the Court’s record. The date of the SSI application summary is April 9, 2013. A.R. 198.
Pursuant to 20 C.F.R. §§ 416.340–350, a protective filing date establishes the earliest possible
application date based on a claimant’s oral inquiry about eligibility or a verbal or written statement
of intent to file for benefits. 	Therefore, February 19, 2013, is considered Plaintiff’s application
filing date for SSI benefits. See A.R. 199, 636. Plaintiff initially alleged disability beginning June 1,
1999. A.R. 198. At her hearing on January 21, 2016, Plaintiff amended her alleged onset date to
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her administrative remedies and timely filed a Complaint seeking relief from this Court.4
Plaintiff’s Opening Brief asks the Court to reverse and remand the agency’s decision for
an 	immediate 	award 	of 	benefits, 	or 	in 	the 	alternative, 	for 	further 	administrative
proceedings.5 The Commissioner filed an Answer and Response Brief.6 Plaintiff filed a
Reply Brief.7
Oral argument was not requested and was not necessary to the Court’s decision.
This Court has jurisdiction to hear an appeal from a final decision of the Commissioner of
Social Security.8 	For the reasons set forth below, the Commissioner’s decision is
reversed and remanded for the immediate payment of benefits.
I. 	STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be overturned
unless it is either not supported by substantial evidence or is based upon legal error.9
“Substantial evidence” has been defined by the United States Supreme Court as “such
relevant evidence as a reasonable mind might accept as adequate to support a
January 31, 2013. A.R. 586. The application summary, not the application itself, appears in the
Court’s record.
4 Docket 1 (Plaintiff’s Compl.).
5 Docket 25 (Plaintiff’s Br.).
6 Docket 21 (Answer); Docket 28 (Commissioner’s Br.).
7 Docket 29 (Reply).
8 42 U.S.C. § 405(g).
9 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v.
Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
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conclusion.”10 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.”11 	In reviewing the agency’s determination, the Court considers the
evidence in its entirety, weighing both the evidence that supports and that which detracts
from the administrative law judge (“ALJ”)’s conclusion.12 If the evidence is susceptible to
more than one rational interpretation, the ALJ’s conclusion must be upheld.13 A reviewing
court may only consider the reasons provided by the ALJ in the disability determination
and “may not affirm the ALJ on a ground upon which [she] did not rely.”14 	An ALJ’s
decision will not be reversed if it is based on “harmless error,” meaning that the error “is
inconsequential to the ultimate nondisability determination, or that, despite the legal error,
the agency’s path may reasonably be discerned, even if the agency explains its decision
with less than ideal clarity.”15 Finally, the ALJ has a “special duty to fully and fairly develop
the record and to assure that the claimant’s interests are considered.”16 In particular, the
Ninth Circuit has found that the ALJ’s duty to develop the record increases when the
10 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of New York v.
NLRB, 305 U.S. 197, 229 (1938)).
11 Id.; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975).
12 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
13 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971)).
14 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
15 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (quotations and citations omitted).
16 Smolen v. Chater, 80 F.3d 1273,1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441,
443 (9th Cir. 1983)); superseded in part by statute on other grounds, 20 C.F.R. § 416.929(c)(3).
See also Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014).
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claimant is unrepresented or is mentally ill and thus unable to protect her own interests.17
This duty exists “even when the claimant is represented by counsel.”18
II. 	DETERMINING DISABILITY
The Social Security Act (“the Act”) provides for the payment of disability insurance
benefits (“DIB”) to individuals who have contributed to the Social Security program and
who suffer from a physical or mental disability.19 	In addition, Supplemental Security
Income (“SSI”) may be available to individuals who do not have insured status under the
Act but who are age 65 or older, blind, or disabled.20 	Disability is defined in the Act as
follows:
[I]nability to engage in any substantial gainful activity by reason of any
medically 	determinable 	physical 	or 	mental 	impairment 	which 	can 	be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.21
The Act further provides:
An individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired If he applied for work.
For purposes of the preceding sentence (with respect to any individual),
“work which exists in the national economy” means work which exists in
17 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
18 DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991) (quoting Brown, 713 F.2d at 443).
19 42 U.S.C. § 423(a).
20 42 U.S.C. § 1381a.
21 42 U.S.C. §§ 423(d)(1)(A).
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significant numbers either in the region where such individual lives or in
several regions of the country.22
The Commissioner has established a five-step process for determining disability
within the meaning of the Act.23 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability.24 	If a claimant establishes a
prima facie case, the burden of proof then shifts to the agency at step five.25 	The
Commissioner can meet this burden in two ways: 	“(a) by the testimony of a vocational
expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404,
subpt. P, app. 2.”26 The steps, and the ALJ’s findings in this case, are as follows:
Step 1. Determine whether the claimant is involved in “substantial gainful activity”
(SGA).27 The ALJ determined that Plaintiff had not engaged in SGA since the date of her
SSI application, February 19, 2013.28
Step 2. Determine whether the claimant has a medically severe impairment or
combination of impairments. A severe impairment significantly limits a claimant’s physical
or mental ability to do basic work activities and does not consider age, education, or work
22 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
23 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
24 Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting Hoopai
v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999).
25 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
26 Tackett, 180 F.3d at 1101.
27 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
28 A.R. 639.
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experience. 	The severe impairment or combination of impairments must satisfy the
twelve-month duration requirement.29 The ALJ determined that Plaintiff had the following
severe impairments: major depressive disorder; post-traumatic stress disorder (PTSD);
anxiety disorder; borderline personality disorder; hypertension; and morbid obesity. The
ALJ found that Plaintiff’s “various other mental health conditions,” including agoraphobia,
were not medically determinable impairments. 	The ALJ also found Plaintiff’s bilateral
epicondylitis and symptoms of numbness and tingling in the hands were not severe
impairments.30
The ALJ considered the four broad functional areas of mental function, known as
the paragraph B criteria.31 	The ALJ found that Plaintiff had a mild limitation in
understanding, remembering, or applying information. The ALJ determined Plaintiff was
moderately limited in concentrating, persisting, or maintaining pace. The ALJ also found
that Plaintiff had a moderate limitation in interacting with others and a moderate limitation
in adapting and managing herself.32
Step 3. Determine whether the impairment or combination of impairments meet(s)
or equal(s) the severity of any of the listed impairments found in 20 C.F.R. pt. 404,
subpt. P, app.1, precluding substantial gainful activity. 	If the impairment(s) is(are) the
equivalent of any of the listed impairments, and meet(s) the duration requirement, the
29 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
30 A.R. 639–40.
31 20 C.F.R., pt. 404, subpt. P, app. 1.
32 A.R. 641–42.
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claimant is conclusively presumed to be disabled. If not, the evaluation goes on to the
fourth 	step.33 	The ALJ 	determined 	that 	Plaintiff 	did 	not 	have 	an 	impairment 	or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.34
Residual Functional Capacity. Before proceeding to step four, a claimant’s residual
functional capacity (“RFC”) is assessed.35 	Once determined, the RFC is used at both
step four and step five. An RFC assessment is a determination of what a claimant is able
to do on a sustained basis despite the limitations from her impairments, including
impairments that are not severe.36 	The ALJ determined that Plaintiff had the residual
functional capacity to perform light work with the following limitations: she can frequently
climb ramps or stairs, balance, stoop, kneel, crouch, and crawl; she cannot climb ladders,
ropes or scaffolds; she should avoid all unprotected heights and concentrated exposure
to hazardous machinery; and she is limited to work requiring simple, routine, and
repetitive tasks, with only occasional decision making or changes in the work setting and
occasional interaction with the general public, coworkers, and supervisors.37
Step 4. Determine whether the claimant is capable of performing past relevant
work. 	At this point, the analysis considers whether past relevant work requires the
33 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
34 A.R. 640.
35 20 C.F.R. § 416.945.
36 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
37 A.R. 642.
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performance of work-related activities that are precluded by the claimant’s RFC. 	If the
claimant can still do her past relevant work, the claimant is deemed not to be disabled.38
Otherwise, the evaluation process moves to the fifth and final step. The ALJ determined
that Plaintiff had no past relevant work.39
Step 5. Determine whether the claimant is able to perform other work in the
national economy in view of her age, education, and work experience, and in light of the
RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled.40 The
ALJ determined there were jobs existing in significant numbers in the national economy
that Plaintiff could have performed prior to November 25, 2018, including representative
occupations such as retail price marker (DOT #209.587-034, SVP 2, light); small parts
assembler (DOT #706.684-022, SVP 2, light); and collator operator (DOT #208.685-010,
SVP 2, light).41
The ALJ concluded that Plaintiff was not disabled prior to November 25, 2018, but
became disabled on that date and continued to be disabled through December 10, 2021,
the date of the ALJ’s decision.42
38 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
39 A.R. 657.
40 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
41 A.R. 657–58.
42 A.R. 659–60.
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III. 	PROCEDURAL BACKGROUND
Plaintiff was born in 1963. 	Prior to the established disability onset date of
November 25, 2018, Plaintiff was a “younger individual” (age 18–49) and then an
individual “closely approaching advanced age” (age 50–54). 	Since the established
disability onset date, Plaintiff’s age category has changed to an individual of “advanced
age” (age 55 and older).43 	Plaintiff’s claim was denied initially on June 28, 2013, and
again in the unfavorable hearing decision by ALJ Paul Hebda, dated February 3, 2016.44
On March 22, 2017, the Appeals Council denied Plaintiff’s request for review.45
This Court remanded the case for further proceedings on May 9, 2018. The ALJ
was directed to reassess the mental health opinions of Elizabeth Caffrey, LPC, as part of
a “treatment team,” which included Douglas Smith, M.D., a psychiatrist with Sitka
Counseling & Prevention Services, Inc., and reassess Dr. Smith’s separate medical
opinion. 	The Court also directed the ALJ to reassess the opinion of Plaintiff’s primary
care provider, Danna-Ben Seeland, FNP.46
On January 17, 2020, the Court issued an Order Regarding Motion to Enforce
Judgment.47 	On January 23, 2020, the Court amended its Judgment to include a
statement that Plaintiff should receive SSI benefits as of November 26, 2018, and the
43 A.R. 657. See 20 C.F.R. § 404.1563.
44 A.R. 49, 14–27A.
45 A.R. 6–10.
46 A.R. 764.
47 Docket 25-1.
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Commissioner should grant a hearing as soon as possible to determine if Plaintiff was
disabled prior to November 26, 2018.48
Upon remand, ALJ Cecilia LaCara issued a “partially favorable” decision on
December 	10, 	2021.49 	She 	determined 	that 	Plaintiff 	was 	not 	disabled 	prior 	to
November 25, 2018, but became disabled on that date and continued to be disabled
through the date of the ALJ decision.50 	The ALJ noted that although Plaintiff alleged
disability beginning January 31, 2013, the period of adjudication began with Plaintiff’s
protective filing date of February 19, 2013.51 On August 11, 2023, Plaintiff appealed the
Commissioner’s final decision to this Court.52
IV. 	DISCUSSION
Plaintiff is represented by counsel in this appeal. Plaintiff alleges that the ALJ erred
by failing to properly consider the opinion evidence of Elizabeth Caffrey, LPC, and
Douglas Smith, M.D., regarding Plaintiff’s mental impairments.53 Although Plaintiff also
sets forth the standard for reviewing the ALJ’s evaluation of Plaintiff’s symptom testimony,
48 (Maria Ann T.) v. Berryhill, Case No. 1:17-cv-00003-RRB, Docket 36. The Plaintiff’s name was
not redacted in Case No. 1:17-cv-00003-RRB.
49 A.R. 633–660.
50 A.R. 659. Although the Court’s Orders of May 9, 2018, and January 17, 2020, instructed the
ALJ upon remand to deem Plaintiff disabled as of November 26, 2018, the ALJ determined Plaintiff
became disabled on November 25, 2018. See A.R. 659, 763, Docket 25-1 at 5.
51 A.R. 636. The effective date of an SSI application, for the purpose of paying benefits, is the
later of the first day of the month following the application date or the first day of the month
following the date the individual becomes eligible for benefits with respect to the application. See
42 U.S.C.A. §1382(c)(7)(A), (B) (42 U.S.C.A. §1382(f) held unconstitutional on other grounds).
52 Docket 1.
53 Docket 25 at 1–19.
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Plaintiff does not develop her argument and the Court will not address Plaintiff’s symptom
testimony in this Order.54 Plaintiff asserts that this Court’s “previous finding that no good
reason has been identified for rejecting the Smith/Caffrey opinions is still the law of the
case and requires reversal.”55 	The Commissioner maintains the decision should be
affirmed because the ALJ reasonably evaluated the medical and other opinions of
record.56
For the reasons explained below, the Court reverses and remands for the
immediate payment of benefits.
A. 	Legal Standards
Plaintiff applied for SSI benefits in 2013, so the regulations prior to March 27, 2017,
apply to her claim.57 	For applications filed before the new regulations became
effective, SSA “give[s] more weight” to the medical opinions of examining and
treating sources.58 	The ALJ gives “controlling weight” to a treating physician’s
medical 	opinion 	when 	it 	is 	supported 	by 	medically 	acceptable 	diagnostic
techniques and is not inconsistent with other substantial evidence.59 	If the ALJ
54 Docket 25 at 11–12.
55 Docket 25 at 19.
56 Docket 28 at 3–11.
57 A.R. 198. 	On January 18, 2017, the SSA published revisions to the rules regarding the
evaluation of medical evidence. 	The revisions became effective on March 27, 2017. See
82 C.F.R. § 5844, 5869 (1-18-2017).
58 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
59 See 20 C.F.R. § 404.1527(a)(2), 416.927(a)(2); see also Woods v. Kijakazi, 32 F.4th 785, 789
(9th Cir. 2022) (categorizing the doctor’s relationship with a claimant in a “three-tiered hierarchy”).
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does not give the opinion controlling weight, the ALJ then considers the following
factors in deciding the weight to give to any medical opinion: (1) the examining or
treating relationship; (2) the consistency of the medical opinion with the record as
a whole; (3) the physician’s area of specialization; (4) the supportability of the
physician’s opinion through relevant evidence; and (5) other relevant factors, such
as the physician’s degree of familiarity with the SSA’s disability process and with
other information in the record.60 For applications filed before March 27, 2017, an
ALJ’s failure to consider these factors constitutes reversible legal error.61
An uncontradicted medical opinion by a treating or examining doctor may only be
rejected by the ALJ based on “clear and convincing reasons.”62 When “a treating
or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ
may only reject it by providing specific and legitimate reasons that are supported
by substantial evidence.”63 	This can be done by “setting out a detailed and
thorough 	summary 	of 	the 	facts 	and 	conflicting 	clinical 	evidence, 	stating 	his
interpretation thereof, and making findings.”64
60 20 C.F.R. §§ 404.1527(c), 416.927(c).
61 Trevizo v. Berryhill, 871 F.3d 644, 676 (9th Cir. 2017).
62 Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (quotation omitted).
63 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
64 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747,
751 (9th Cir. 1989)).
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Under the regulations before March 2017, nurse practitioners and licensed
social workers are each considered a “not acceptable source” or “other source.”65
Nonetheless, the SSA must consider these opinions and evaluate them pursuant
to the same five factors used to evaluate accepted medical source opinions.66
Information from “other sources” may be based on special knowledge of the
individual and may provide insight into the severity of the impairments and how it
affects 	the 	claimant's 	ability 	to 	function.67 	Therefore, 	an 	opinion 	from 	a
nonacceptable source, who has seen the individual in his or her professional
capacity, may be given more weight than that of an acceptable source.68 The ALJ
is only permitted to disregard the testimony of other sources, including treating
mental health counselors and social workers, if the ALJ “gives reasons germane
to each witness for doing so.”69 	Moreover, an ALJ is required to consider other
65 20 C.F.R. §§ 404.1513(d), 416.913(d) (effective Sept. 3, 2013, to March 26, 2017).
66 20 C.F.R. §§ 404.1527(f), 416.927(f).
67 Social Security Ruling (“SSR”) 06-03p, 2006 WL 2329939 (S.S.A. Aug. 9, 2006). “Social
Security Rulings [] do not carry the ‘force of law,’ but they are binding on ALJs nonetheless.” Bray
v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
68 SSR 06-03p.
69 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quotations and citations omitted),
superseded on other grounds by 20 C.F.R. § 404.1502(a); see also 20 C.F.R. §§ 404.1527,
416.927.
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source 	opinion 	evidence 	when 	“evaluating 	an 	‘acceptable 	medical 	source’s’
opinion.”70
B. 	Plaintiff’s Treating Providers
Here, Plaintiff challenges the ALJ’s consideration of the opinions of her treating
psychiatrist, Douglas Smith, M.D., and her treating clinician, Elizabeth Caffrey, LPC (“LPC
Caffrey”), regarding Plaintiff’s mental health.71 	Both Dr. Smith and LPC Caffrey had a
treating relationship with Plaintiff while she attended the Harbor Lights program at Sitka
Counseling and Preventions Services.72
As explained by Dr. Smith, Harbor Lights is a rehabilitation program for adults
experiencing “a serious mental illness,” with a “diagnosable disorder of sufficient duration
to meet diagnostic criteria specified in the DSM 5 or ICD.”73 The program is a “drop in”
day 	program 	providing 	group 	and 	individual 	community 	support 	services, 	case
management services, individual psychotherapy, and pharmacologic management by a
physician.74
70 SSR 06-03p. See also e.g., Revels v. Berryhill, 874 F.3d 648, 665 (9th Cir. 2017) (“Also, though
[the nurse practitioner] is not an ‘acceptable medical source,’ she is an ‘other source’ and there
are strong reasons to assign weight to her opinion. [The nurse practitioner] was a treating source
who examined [the claimant] at least ten times over two years.”); Popa v. Berryhill, 872 F.3d 901,
907 (9th Cir. 2017) (finding that ALJ erred in disregarding opinion of a nurse practitioner who
served as claimant's primary medical care provider).
71 Docket 25 at 9–19.
72 See e.g., A.R. 306–08, 339–42, 376–79, 436, 471, 618.
73 A.R. 581.
74 A.R. 582.
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In February 2013, Plaintiff was hospitalized for suicidal ideation.75 	She was
discharged after four days and referred to the Sitka Counseling program.76 In April 2013,
Dr. Smith performed a psychiatric evaluation. Dr. Smith noted Plaintiff’s treatment history,
and he indicated agreement with the treatment approach developed by LPC Caffrey,
including 	individual 	therapy 	and 	medication 	management.77 	Dr. 	Smith 	observed
borderline [personality disorder] traits, emotional instability, a low frustration tolerance, a
tendency to become suicidal or very despondent, and very ambivalent relationships with
care providers as well as with her family.78
LPC Caffrey treated Plaintiff weekly for approximately two years, from April 2013
through April 2015.79 	In October 2014, Plaintiff’s primary care provider (Danna-Ben
Seeland, FNP) requested that Dr. Smith see Plaintiff every six months.80 On October 13,
2014, Dr. Smith met with Plaintiff and noted “she appeared generally well, but very
anxious,” and reiterated a diagnosis of depression and anxiety.81
75 A.R. 315.
76 A.R. 284.
77 A.R. 539–41.
78 A.R. 307–08.
79 E.g., A.R. 339, 384–543.
80 A.R. 471. Dr. Smith referred to Nurse Seeland as “Dr. Danaben Seland” in his chart notes.
81 A.R. 471.
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Dr. Smith again saw Plaintiff on March 20, 2015, and noted some improvement.82
Nevertheless, a month later Dr. Smith signed off on LPC Caffrey’s April 2015 evaluation.83
LPC Caffrey’s records reflect major depressive disorder, recurrent severe; post–traumatic
stress disorder, chronic; and other psycho-social problems in addition to obesity.84
1. 	April and August 2015 opinions
On April 14, 2015, LPC Caffrey, with Dr. Smith’s approval on April 27, 2015,
provided a Mental Residual Functional Capacity Assessment. They opined that Plaintiff
was markedly and extremely limited in multiple subcategories of the “Paragraph B”
criteria.85 Dr. Smith and LPC Caffrey noted that Plaintiff received weekly individual and
group psychotherapy as well as comprehensive individual and group community support.
They opined that Plaintiff would not be able to work on a regular and sustained basis at
least 20 percent of the time because of her mental impairment and she would miss 25
workdays per month.86 Dr. Smith and LPC Caffrey specified that Plaintiff had “not been
82 A.R. 436.
83 A.R. 339–42.
84 A.R. 551.
85 A.R. 339–42. 	Paragraph B criteria are used to determine if a mental impairment meets or
medically equals a listing under Section 12.00 of 20 C.F.R. Part 404, Subpart P, Appendix 1 (the
“Listings”). See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.00.
86 A.R. 342. 	Although opinions that a claimant is “disabled” or “unable to work” are issues
reserved to the Commissioner, the ALJ is still required to “carefully consider medical source
opinions about any issue, including opinions about issues that are reserved to the Commissioner.”
SSR 96-5p, 1996 WL 374183, at *2 (July 2, 1996); Holohan v. Massanari, 246 F.3d 1195, 1202–
03 (9th Cir. 2011) (“If the treating physician’s opinion on the issue of disability is controverted, the
ALJ must still provide ‘specific and legitimate’ reasons in order to reject the treating physician’s
opinion.”). In this case, Plaintiff’s treating providers also provided functional assessments using
Paragraph B criteria regarding Plaintiff’s ability to remember locations and work-like procedures,
ability to carry out instructions, maintain attention and concentration, perform activities within a
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able to establish a health routine (i.e., getting up before noon, follow through, keeping a
volunteer job even though liked it)” and was “immobilized from moving forward” by chronic
suicidal ideation and flashbacks from a traumatic childhood. They also noted that Plaintiff
had not been able to manage her own funds, but that Plaintiff wanted to begin managing
her funds and “gain independent living skills.”87
On August 7, 2015, LPC Caffrey completed a second Mental Residual Functional
Capacity Assessment. She again opined that Plaintiff was markedly and extremely limited
in multiple subcategories of the “Paragraph B” criteria.88 	LPC Caffrey again noted that
Plaintiff received weekly individual and group psychotherapy as well as comprehensive
individual and group community support. 	She opined that Plaintiff would not be able to
work on a regular and sustained basis at least 20 percent of the time because of her
mental impairment and she would miss 30 workdays per month. LPC Caffrey specifically
opined that Plaintiff was not capable of working on a regular and sustained basis because
Plaintiff became “over-stimulated quite easy and need[ed] to be able to remove herself
from the situation when her anxieties be[gan].”89
The ALJ gave little weight to Dr. Smith’s and LPC Caffrey’s opinions from April and
August 2015. The ALJ provided two reasons for discounting those opinions: (1) the April
schedule, maintain regular attendance and punctuality, complete a normal workday without
interruptions from psychologically based symptoms, ability to act appropriately with the general
public, ask simple questions and for assistance, and the ability to maintain socially appropriate
behavior and adhere to basic standards of neatness and cleanliness. A.R. 340–41.
87 A.R. 339–42.
88 A.R. 377–79.
89 A.R. 379.
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and August 2015 opinions are “out of proportion to” and not supported by the providers’
treatment notes and (2) the opinions are not “fully consistent” with the longitudinal
evidence.90 Although the ALJ considered the supportability and consistency of the April
and August 2015 opinions, the ALJ did not consider the other relevant factors such as the
length of Dr. Smith’s and LPC Caffrey’s treating relationship with Plaintiff, the frequency
of examinations, or the nature and extent of their treatment relationship with Plaintiff, as
is required by the SSA regulations prior to March 27, 2017.91 This failure alone constitutes
reversible legal error.92
As a “treating source” under the pre-2017 regulations, the ALJ was required to
provide either “clear and convincing” or “specific and legitimate” reasons for rejecting
Dr. Smith’s opinions.93 	LPC Caffrey’s opinions were approved by Dr. Smith and were
considered by the ALJ under the same specific and legitimate standard of review.94
The only contradictory opinion discussed by the ALJ was the June 2013 opinion
by Ron Feigin, M.D., a state agency medical consultant.95 Although his opinion pre-dated
90 A.R. 654.
91 20 C.F.R. §§ 404.1527(c), 416.927(c).
92 Trevizo v. Berryhill, 871 F.3d 644, 676 (9th Cir. 2017).
93 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
94 A.R. 654–55. See Benton ex rel. Barnhart, 331 F.3d 1030, 1039 (9th Cir. 2003) (the ALJ must
take into consideration the functioning of a “treatment team” when determining what weight to
give a medical source’s opinion); see also A.R. 761 (The Court held that because Dr. Smith
“signed off on Elizabeth Caffrey’s mental RFC,” the opinion was rendered the opinion of an
acceptable medical source.).
95 The previous ALJ gave great weight to Dr. Moore, the testifying mental health expert at Plaintiff’s
2016 hearing. 	A.R. 25–26. 	No medical experts testified at Plaintiff’s hearing on remand on
July 19, 2021. A.R. 670–701.
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Dr. Smith’s and LPC Caffrey’s opinions by two years, the ALJ gave the opinion “significant
weight,” but only “to the extent that” Dr. Feigin’s opinion conformed with the RFC.
Specifically, the ALJ accorded significant weight to Dr. Feigin’s opinion “to the extent” it
limited Plaintiff to “simple instructions and simple, routine tasks, such as those that may
be learned in a step-by-step manner, and with limited public contact and only occasional
need for supervisor interaction.”96
a. 	Consistency with treatment notes
In the Ninth Circuit, “[a] conflict between treatment notes and a treating provider’s
opinions may constitute an adequate reason to discredit the opinions of a treating
physician or another treating provider.”97 	Inconsistency with the medical record is a
specific and legitimate reason for affording little weight to a treating physician’s opinion.98
Here, the ALJ discounted Dr. Smith’s and LPC Caffery’s April 2015 opinion that Plaintiff
had not been able to establish a healthy routine and was unable to move forward in her
life due to chronic suicidal ideation and trauma flashbacks because LPC Caffrey’s “notes
reflect [Plaintiff]’s continued involvement in her weekly radio program and activities with
Harbor Lights.”99 	The ALJ also discounted LPC Caffrey’s opinion in August 2015 that
Plaintiff would become overstimulated easily and needed to remove herself from a
96 A.R. 653.
97 Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014).
98 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) (holding that
inconsistency between clinical findings and a physician’s opinion regarding the plaintiff’s work
limitations is a specific and legitimate reason for disregarding the physician’s conclusions).
99 A.R. 654.
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situation 	when 	her 	anxiety 	began, 	reasoning 	that 	Plaintiff’s 	“episodic 	feelings 	of
overwhelm did not result in avoidance or curb her interest in continued efforts at
engagement” in the activities at Harbor Lights.100 However, the record does not support
the ALJ’s conclusions.
Consistent with the April and August 2015 assessments, LPC Caffrey’s notes
recorded treatment sessions during which Plaintiff processed past traumas and current
struggles with depression and suicidal ideation.101 	And although Plaintiff continued to
participate in the activities at Harbor Lights, there were also times when Plaintiff did not
respond to LPC Caffrey’s telephone messages or notified LPC Caffrey that she could not
attend a session because she was not ready to use her “(vocal) words.”102 LPC Caffrey’s
notes from approximately 2013 through 2015 show that Plaintiff was achieving “fair”
progress in developing basic social and independence skills in a highly controlled and
supported environment at Harbor Lights.103
Although 	she 	reached 	a 	different 	conclusion 	regarding 	Plaintiff’s 	mental
limitations,104 medical expert Margaret Moore’s testimony at Plaintiff’s January 21, 2016,
hearing independently confirms that LPC Caffrey’s opinions are supported by her own
100 Id.
101 See e.g., A.R. 430–539.
102 E.g., A.R. 428–30.
103 E.g., A.R. 380–543.
104 Dr. Moore concluded that Plaintiff’s mental impairments caused mild limitations on activities of
daily living, moderate limitations on social functioning, and moderate limitations on Plaintiff’s
ability to sustain concentration, persistence, or pace. A.R. 595–96.
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treatment notes.105 	Dr. Moore testified that the treatment notes during the period from
April 2013 through the date of the hearing in 2016 showed Plaintiff continued to have
“some chronic suicidal thoughts that serve the purpose of a coping mechanism, although
a dysfunctional one.”106 Dr. Moore characterized Plaintiff’s participation at Harbor Lights
as a continuation of her “dependent personality style,” not as an example of Plaintiff’s
ability to maintain a full-time, competitive work schedule.107 She testified that the record
showed Plaintiff had regular attendance and involvement in the activities at Harbor Lights,
but 	the 	record 	also 	showed 	“some 	occasions 	where 	it 	almost 	seemed 	like 	she
disappeared.”108 	Dr. Moore opined that Plaintiff would miss “some” work due to her
mental impairments and she also thought Plaintiff was “the kind of person who would
benefit from outreach.”109 This testimony is consistent with Dr. Smith’s and LPC Caffrey’s
opinion that Plaintiff would miss work due to her mental impairments and that Plaintiff
required social supports to carry out daily activities.
105 The ALJ did not evaluate Dr. Moore’s expert testimony in the decision of December 10, 2021.
A.R. 636–60.
106 A.R. 595.
107 Dr. Moore testified that Plaintiff’s heavy involvement with Harbor Lights was “unfortunate
because what’s happening is that we aren’t getting down to the real work of making her less
dependent on the system and more independent and more functional, but we’re seeing a
facilitation of the tendencies that she already had with her mother.” A.R. 595.
108 A.R. 607.
109 A.R. 608.
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b. 	Daily activities
The 	Ninth 	Circuit 	has 	often asserted 	that a 	claimant 	need 	not 	be 	“utterly
incapacitated” in order to be disabled.110 At the same time, “[a] conflict between a treating
physician’s opinion and a claimant’s activity level is a specific and legitimate reason for
rejecting the opinion.”111 Here, the ALJ discounted the April and August 2015 opinions in
part because of Plaintiff’s attendance at Harbor Lights. 	The ALJ repeatedly referenced
Plaintiff’s continued involvement as a disc jockey for a radio program on Friday nights for
two hours per week. The ALJ also noted Plaintiff’s work as a night monitor at a residential
facility one day per week, beginning in 2017.112
Plaintiff testified that when she worked with another individual as a night monitor
in the residential facility, she would miss work more often. 	She testified that she would
miss a week of work because she was having “a bad day emotionally or physically.” But,
Plaintiff also testified she had been trying to be more consistent in the three months before
the July 2021 hearing because the facility was short-staffed.113 Plaintiff’s engagement at
Harbor Lights took place within a very controlled and supportive environment, her
activities at the radio station were only two hours per week, and her night monitor work at
110 Molina v. Astrue, 674 F.3d 1104, 1112–13 (9th Cir. 2012), superseded on other grounds by 20
C.F.R. § 404.1502(a).
111 Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020).
112 E.g., A.R. 641, 646, 650, 652. In a treatment note from Mountainside Family Healthcare Clinic
in May 2014, Plaintiff reported volunteering once a week on Friday nights from 10:00pm to
12:00am at the public radio station. A.R. 323. Plaintiff reported that she continued to volunteer
at the radio station in July 2021. A.R. 690.
113 A.R. 694–95.
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the residential facility was one eight-hour night shift per week.114 	Even if Plaintiff was
able to participate regularly in these limited activities, they do not conflict with her
providers’ April and August 2015 opinions that Plaintiff was unable to work an eight-hour
workday on a regular and sustained basis. Moreover, the vocational expert at Plaintiff’s
2016 hearing testified that working approximately 10 hours per week would not be
substantial gainful activity. The vocational expert also testified that if an individual missed
two or more days per month due to unscheduled absences, the individual would not be
able to maintain employment.115 In sum, these activities were limited in duration and did
not comprise a substantial part of Plaintiff’s day, nor were they transferrable to a work
environment.116
c. 	Improvement with treatment
The ALJ found that Plaintiff “showed improvement with a return to counseling and
medication” after being hospitalized for suicidal ideation prior to her 2013 application and
that “the record does not reflect further crisis interventions or active intent or efforts to
114 See 20 C.F.R. Pt. 404, Subpt P, App. 1 § 12.00 D (How do we consider psychosocial supports,
structured settings, living arrangements and treatment?); see also Garrison v. Colvin, 759 F.3d
995, 1016 (9th Cir. 2014) (“The critical differences between activities of daily living and activities
in a full-time job are that a person has more flexibility in scheduling the former than the latter, can
get help from other persons . . ., and is not held to a minimum standard of performance, as she
would be by an employer. 	The failure to recognize these differences is a recurrent, and
deplorable, feature of opinions by administrative law judges in social security disability cases.”)
(citing Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)).
115 A.R. 626, 629.
116 Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (“[T]here is no indication here that the
limited activities Ghanim engaged in, often with the help of a friend, either comprised a
‘substantial’ portion of Ghanim’s day, or were ‘transferrable’ to a work environment.”).
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commit suicide.”117 	The ALJ discounted Dr. Smith’s and LPC Caffrey’s opinions,
reasoning that the “longitudinal evidence does indicate some limitations to sustaining
interactions, 	maintaining 	concentration, 	persistence, 	and 	pace, 	and 	adapting 	and
managing herself, but not to the extent indicated in the opinions of Ms. Caffrey and
Dr. Smith.”118
In the context of mental health, “it is error to reject a claimant’s testimony merely
because symptoms wax and wane in the course of treatment.”119 Reports of improvement
in mental health “must also be interpreted with an awareness that improved functioning
while being treated and while limiting environmental stressors does not always mean that
a claimant can function in a workplace.”120 In this case, Plaintiff’s mental health diagnoses
of major depressive disorder, PTSD, anxiety disorder, and borderline personality disorder
remained constant throughout the relevant disability period and were considered “severe”
impairments by the ALJ.121 	And, as noted previously, Plaintiff was achieving “fair”
117 A.R. 655.
118 A.R. 655.
119 Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (citing Holohan v. Massanari, 246 F.3d
1195, 1205 (9th Cir. 2001) (“[The treating physician’s] statements must be read in context of the
overall diagnostic picture he draws. That a person who suffers from severe panic attacks, anxiety,
and depression makes some improvement does not mean that the person’s impairments no
longer seriously affect her ability to function in a workplace.”)).
120 Garrison, 759 F.3d at 1017; see also Hutsell v. Massanari, 259 F.3d 707, 712 (9th Cir. 2001)
(“We also believe that the Commissioner erroneously relied too heavily on indications in the
medical record that Hutsell was ‘doing well,’ because doing well for the purposes of a treatment
program has no necessary relation to a claimant’s ability to work or to her work-related functional
capacity.”).
121 A.R. 639.
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progress in developing basic social and independence skills in a highly controlled and
supported environment at Harbor Lights.122
Although the Commissioner points to Plaintiff’s report that her weekly counseling
sessions were “very helpful” and that she responded well to her psychiatric medications,
these are not specific and legitimate reasons for discounting the April and August 2015
opinions of Dr. Smith and LPC Caffrey.123 Moreover, an improvement after hospitalization
for suicide ideation and a lack of “crisis interventions or active intent or efforts to commit
suicide” does not disprove the finding that Plaintiff is precluded from engaging in
substantial gainful work.
For the reasons set forth above, the ALJ failed to provide specific and legitimate
reasons supported by substantial evidence for discounting the April and August 2015
opinions of Dr. Smith and LPC Caffrey.
2. 	Dr. Smith’s February 2016 opinions
In February 2016, Dr. Smith co-signed two letters with Harbor Lights program
director Janelle Kimberlin. 	These letters described the services provided to Plaintiff
through the Harbor Lights program. 	The letters indicated that the supports at Harbor
Lights provided “guidance, redirections, reminders and positive feedback” on a daily basis
to assist Plaintiff in “being more open to treatment recommendations” and being “more
willing to work through her anxiety and fears.”124
122 E.g., A.R. 380–543.
123 Docket 28 at 7.
124 A.R. 579–82.
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The ALJ afforded “some weight” to Dr. Smith’s and program director Janelle
Kimberlin’s February 2016 opinions that “without the intervention of counselors and
Harbor Lights staff, [Plaintiff] would not be able to care for herself or live independently”
and that Plaintiff “‘would not be functioning in the community as she is’ without the
community supports provided by the program.”125 The ALJ reasoned that Dr. Smith’s and
Ms. Kimberlin’s opinions indicated “some limitation in independent judgment, attending to
multi-step or unfamiliar tasks, and anxiety around groups” and that the opinions were well-
articulated and provided behavioral examples “consistent with evidence in the record,”
but the ALJ found that the treatment notes from providers at Harbor Lights did not “reflect
the level of prodding, cajoling, and resistance to interventions suggested by the letters.”126
The ALJ pointed to treatment notes from late-2015 indicating Plaintiff’s participation in
group activities and highlighted the voluntarily nature of Plaintiff’s attendance at Harbor
Lights from 2015 through 2021 as reflective of “some independent adaptive and self-
management abilities.”127
In the Ninth Circuit, there “is a presumption that ALJs are, at some level, capable
of independently reviewing and forming conclusions about medical evidence to discharge
their statutory duty to determine whether a claimant is disabled and cannot work.”128
However, in this case, the ALJ found Dr. Smith’s 2016 opinion to be supported by the
125 A.R. 655.
126 Id.
127 A.R. 656.
128 Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022).
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record and adequately explained, yet the ALJ crafted Plaintiff’s limitations based on her
own interpretation of the treatment notes from Harbor Lights.129 The ALJ rejected all of
Plaintiff’s treating providers’ opinions and Plaintiff’s GAF scores.130 	No new medical
experts testified at Plaintiff’s hearing on remand and the ALJ did not evaluate Dr. Moore’s
expert testimony from Plaintiff’s previous 2016 hearing.131 	Even the non-examining,
reviewing medical opinion by Dr. Feigin, afforded “great weight” by the ALJ, was limited
“to the extent” that the opinion conformed to the RFC.132
For the reasons stated herein, the ALJ failed to provide specific and legitimate
reasons supported by substantial evidence for discounting the April and August 2015
opinions of Dr. Smith and LPC Caffrey and for discounting Dr. Smith’s and Harbor Lights
program director Janelle Kimberlin’s February 2016 opinions. 	This error was harmful
because the ALJ failed to include the limitations opined by Plaintiff’s treating providers in
the RFC or in the hypothetical to the vocational expert.133
129 “While it is to the staff [of Harbor Lights]’s credit that they have sought to keep [Plaintiff]
engaged, she must want to do so, or she would have withdrawn. This reflects some independent
adaptive and self-management abilities, as well as [the] ability to sustain occasional interactions
with her peers and authority figures (the staff).” A.R. 656.
130 A.R. 651–56. 	The ALJ noted that Plaintiff’s GAF scores ranged from 45 to 55, but the ALJ
gave them minimal weight. A.R. 656. See Garrison v. Colvin, 759 F.3d 995, 1002, n.4 (9th Cir.
2014) (“Although GAF scores, standing alone, do not control determinations of whether a person’s
mental impairments rise to the level of a disability (or interact with physical impairments to create
a disability), they may be a useful measurement.”).
131 A.R. 636–60, 670–701.
132 A.R. 653.
133 Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (a vocational expert’s testimony based
on an incomplete hypothetical lacks evidentiary value to support a finding that a claimant can
perform jobs in the national economy).
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C. 	Law of the Case and the Rule of Mandate
Plaintiff asserts that the law of the case doctrine and the rule of mandate apply to
the opinions of Dr. Smith and LPC Caffrey. 	Specifically, she alleges that “the previous
finding [by this Court] that no good reason has been identified for rejecting the
Smith/Caffrey opinions is still the law of the case and requires reversal.”134 In response,
the Commissioner contends that the ALJ’s reasoning for discounting Dr. Smith’s and LPC
Caffrey’s medical opinions differs from and is “significantly more detailed” than the ALJ’s
reasoning in the 2016 decision before remand.135
The Ninth Circuit has held that both the law of the case doctrine and the rule of
mandate apply to social security cases.136 	“The law of the case doctrine generally
prohibits a court from considering an issue that has already been decided by that same
court or a higher court in the same case,” but the doctrine is not applied “when the
controlling law has changed, or when applying the doctrine would be unjust.”137 The rule
of mandate is more broad in scope and prohibits a district court from varying or examining
the mandate of an appellate court, but allows the district court to “decide anything not
foreclosed by the mandate.”138 	Here, the Court’s remand order provided specific
instructions. 	Regarding Dr. Smith’s and LPC Caffrey’s opinions, the Court ordered the
134 Docket 25 at 12, 19.
135 Docket 28 at 10.
136 Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016) (citations omitted).
137 Id.
138 Id. at 567–68 (quotations and citations omitted).
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ALJ to consider Dr. Smith’s opinion instead of ignoring it and to consider the two providers’
opinions together as part of Plaintiff’s treatment team. However, the Court did not provide
the specific instruction that “no good reason” existed for rejecting Dr. Smith’s and
LPC Caffrey’s opinions.139 Neither the law of the case doctrine nor the rule of mandate
was violated in this case.
D. 	The Proper Remedy is Remand for Immediate Payment of Benefits
The decision whether to remand for further proceedings or for immediate payment
of benefits is within the discretion of the Court.140 When prejudicial error has occurred,
“the proper course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.”141 	To determine which type of remand is appropriate, a
court follows a three-step analysis.142 	Under the credit-as-true rule, in order to remand
for payment of benefits, a court must conclude: (1) the ALJ has failed to provide legally
sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion;
(2) the record has been fully developed and further administrative proceedings would
serve no useful purpose; and (3) if the improperly discredited evidence were credited as
true, the ALJ would be required to find the claimant disabled on remand.143
139 A.R. 762.
140 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (remanding for determination of
benefits where the panel was “convinced that substantial evidence does not support the
Secretary’s decision, and because no legitimate reasons were advanced to justify disregard of
the treating physician’s opinion”).
141 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014).
142 Garrison v. Colvin, 759 F.3d at 1020 (9th Cir. 2014).
143 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017) (internal citations and quotations omitted).
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However, “even if all three requirements are met, [a court] retain[s] ‘flexibility’ in
determining the appropriate remedy” and “may remand on an open record for further
proceedings ‘when the record as a whole creates serious doubt as to whether the claimant
is, in fact, disabled within the meaning of the Social Security Act.’”144
In this case, remanding for the immediate payment of benefits is appropriate.
As 	shown 	above, 	the ALJ 	failed 	to 	provide 	specific 	and 	legitimate 	reasons
supported 	by 	substantial 	evidence 	for 	discounting 	Plaintiff’s 	mental 	health
providers’ opinions regarding Plaintiff’s mental health limitations.
Second, 	the 	record 	has 	been 	fully 	developed 	and 	further 	administrative
proceedings would serve no useful purpose. Ninth Circuit “precedent and the objectives
of the credit-as-true rule foreclose the argument that a remand for the purpose of allowing
the ALJ to have a mulligan qualifies as a remand for a ‘useful purpose’ under [the] credit-
as-true analysis.”145 	Moreover, further proceedings are only necessary when there are
significant factual conflicts between the rejected testimony and the objective medical
evidence, such that the record is “uncertain and ambiguous.”146 Here, the record is not
uncertain or ambiguous. Plaintiff’s application for disability benefits has been pending for
over ten years. She has already participated in two hearings before an ALJ and the record
144 Brown-Hunter, 806 F.3d at 495 (quoting Garrison, 759 F.3d at 1021).
145 Garrison, 759 F.3d at 1021 (“Allowing the Commissioner to decide the issue again would create
an unfair ‘heads we win; tails, let’s play again’ system of disability benefits adjudication.”) (citing
Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004)).
146 Treichler, 775 F.3d at 1105.
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contains over 1,500 pages of medical records.147 	Moreover, the period at issue, from
February 19, 2013 to November 25, 2018, is a remote and closed period of disability with
complete records. 	Accordingly, the Court concludes the record is fully developed and
further proceedings would serve no useful purpose.
Third, if the improperly discredited evidence were credited as true, the ALJ would
be required to find the claimant disabled on remand. Plaintiff’s providers opined that her
impairments would substantially interfere with her ability to work on a regular and
sustained basis at least 20 percent of the time and she would miss work 25–30 days per
month because of her mental impairment or treatment for her mental impairment.148 The
vocational expert at Plaintiff’s 2016 hearing testified that working approximately 10 hours
per week would not be substantial gainful activity. 	The vocational expert also testified
that if an individual missed two or more days per month due to unscheduled absences,
the individual would not be able to maintain employment.149 	Plaintiff has satisfied the
requirements of the credit-as-true standard.
Even when all three credit-as-true criteria are met, a court may still remand for
further proceedings “when the record as a whole creates serious doubt as to whether the
claimant is, in fact, disabled[.]”150 Here, the Court’s review of the record as a whole does
not create a serious doubt as to Plaintiff’s disability.
147 Docket 20.
148 A.R. 342.
149 A.R. 626, 629.
150 Garrison, 759 F.3d at 1021.
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Case No. 1:22-cv-00083-JMK, Maria Ann T. v. Kijakazi
Decision and Order
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V. 	CONCLUSION
The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations are not free from legal error and are not supported by substantial
evidence. The Court does not have serious doubt that the Plaintiff is in fact disabled, and
therefore, exercises its discretion to remand this case for the immediate award of benefits
for the adjudication period between February 19, 2013, and November 25, 2018.
Accordingly, IT IS ORDERED that Plaintiff’s request for relief at Docket 25 is
GRANTED; 	the 	Commissioner’s 	final 	decision 	is 	VACATED, 	and 	this 	matter 	is
REVERSED and REMANDED to the Commissioner for the immediate calculation and
award of benefits.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 10th day of October, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
Case 1:22-cv-00083-JMK Document 30 Filed 10/10/23 Page 32 of 32