Case Name in Social Security Case - Unavailable

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MARK SUMNER BOTHUM, )
)
Plaintiff, )
)
vs. )
)
ANDREW M. SAUL, Commissioner, )
Social Security Administration, )
) No. 3:20-cv-0196-HRH
Defendants. )
_______________________________________)
O R D E R
This is an action for judicial review of the denial of disability benefits under Title II
and Title XVI of the Social Security Act, 42 U.S.C. §§ 401–434, 1381-1383f. Plaintiff Mark
Sumner Bothum has timely filed his opening brief,1 to which defendant Andrew M. Saul has
timely responded.2 Oral argument was not requested and is not deemed necessary.
Procedural Background
On July 16, 2015, plaintiff filed an application for disability benefits under Title II and
on February 2, 2017, he filled an application for disability benefits under Title XVI. Plaintiff
alleges that he became disabled on May 22, 2015. Plaintiff alleges that he is disabled due
1Docket No. 17.
2Docket No. 19.
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to multiple sclerosis and neuropathic pain. Plaintiff’s application was denied, and plaintiff
requested a hearing. After an administrative hearing on February 15, 2019, an administrative
law judge (ALJ) denied plaintiff’s application. On June 25, 2020, the Appeals Council
denied plaintiff’s request for review of the ALJ’s unfavorable decision, thereby making the
ALJ’s April 4, 2019 decision the final decision of the Commissioner. On August 11, 2020,
plaintiff commenced this action for judicial review of the Commissioner’s final decision.
General Background
Plaintiff was born on November 25, 1960. He was 54 years old as of the alleged
onset of disability date. Plaintiff has a college degree in laser engineering and electronics
engineering. Plaintiff’s past relevant work includes work as a university instructor, retail
sales in a hardware store, and an electronics technician.
The ALJ’s Decision
The ALJ first found that plaintiff met “the insured status requirements of the Social
Security Act through June 30, 2016.”3
The ALJ next applied the five-step sequential analysis used to determine whether an
individual is disabled.4
3Admin. Rec. at 16.
4The five steps are as follows:
Step one: Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not disabled. If not,
proceed to step two.
(continued...)
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At step one, the ALJ found that plaintiff “has not engaged in substantial gainful
activity since May 22, 2015, the alleged onset date. . . .”5
At step two, the ALJ found that plaintiff “has the following severe impairments:
multiple sclerosis and degenerative disease of the thoracic spine. . . .”6 The ALJ found
plaintiff’s bilateral foot pain and respiratory impairment nonsevere.7
At step three, the ALJ found that plaintiff did “not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed impairments
4(...continued)
Step two: Is the claimant’s alleged impairment sufficiently
severe to limit . . . h[is] ability to work? If so, proceed to step
three. If not, the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R.,
pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not,
proceed to step four.
Step four: Does the claimant possess the residual functional
capacity (“RFC”) to perform . . . h[is] past relevant work? If so,
the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow . . . h[im]
to adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not,
the claimant is disabled.
Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
5Admin. Rec. at 16.
6Admin. Rec. at 16.
7Admin. Rec. at 16-17.
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in 20 CFR Part 404, Supbart P, Appendix 1. . . .”8 The ALJ considered Listing 1.02 (major
dysfunction of a joint), Listing 1.04 (disorders of the spine), and Listing 11.09 (multiple
sclerosis).9
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r of Social Security A dmin., 554 F.3d 1219, 1222–23 (9th
Cir. 2009). The ALJ found that plaintiff had
the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except as follows. He
can stand and/or walk for 4 hours and sit for 6 hours in an 8-
hour workday. He can occasionally perform foot control
operation bilaterally. He can balance and stoop frequently. He
can climb ramps, stairs, ladders, ropes, or scaffolds occasionally.
He should avoid concentrated exposure to non-weather related
extreme cold and extreme heat, excessive vibration, unprotected
heights and hazardous machinery. He should have a sit/stand
option allowing him to alternate sitting or standing positions
without going off task.[10]
The ALJ discounted plaintiff’s pain and symptom statements because his conditions
improved with medication, his statements were inconsistent with the medical evidence of
record, and his statements were inconsistent with his daily activities.11
8Admin. Rec. at 17.
9Admin. Rec. at 17.
10Admin. Rec. at 17-18.
11Admin. Rec. at 24-25.
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The ALJ gave limited weight12 to Dr. Gonzales’ opinion.13 The ALJ gave little
weight14 to Dr. Pearson’s opinion.15 The ALJ gave some weight16 to Dr. Backlund’s
opinion17 but more weight18 to Dr. Andersen’s opinion.19
12Admin. Rec. at 26.
13On August 16, 2017, Frank Gonzales, Ph.D., a nonexamining source, opined that
plaintiff had no limitations as to understanding, remembering or applying information;
interacting with others; concentrating, persisting, or maintaining pace; and adapting or
managing oneself. Admin. Rec. at 75.
14Admin. Rec. at 26.
15On September 21, 2018, Dr. Pearson, a treating physician, opined that plaintiff could
stand/walk for less than 2 hours, could sit for about 4 hours, would need a break of 30
minutes every two hours, needed a job that permits shifting positions at will, needed to use
a cane when walking/standing in the winter, could occasionally lift/carry 10 pounds; could
frequently look down, turn head left or right, look up, and hold head in static position; could
occasionally twist and stoop; could rarely crouch/squat, climb ladders/stairs; had no
limitations as to reaching, fingering, and handling; and needed to avoid extremes of
temperature, both hot and cold. Admin. Rec. at 824-826. Dr. Pearson also opined that
plaintiff’s pain and other symptoms would frequently interfere with attention and
concentration needed to perform even simple work tasks and that he was only capable of low
stress jobs. Admin. Rec. at 824.
16Admin. Rec. at 25.
17On August 16, 2017, Dr. William Backlund, an nonexamining physician, opined that
plaintiff could occasionally lift/carry 20 pounds; frequently lift/carry 10 pounds; stand/walk
for 6 hours; and sit for 6 hours; was unlimited as to pushing/pulling, climbing ramps and
stairs, kneeling, crouching, and crawling; could occasionally climb ladders/ropes/scaffolds,
could frequently balance and stoop; and should avoid concentrated exposure to extreme cold,
extreme heat, hazards, and vibration. Admin. Rec. at 76-77.
18Admin. Rec. at 25.
19Dr. Stephen Andersen testified as a medical expert at the administrative hearing. Dr.
Andersen opined that plaintiff
(continued...)
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At step four, the ALJ found that plaintiff was “capable of performing past relevant
work as a university instructor.”20
Thus, the ALJ concluded that plaintiff had “not been under a disability, as defined in
the Social Security Act, from May 22, 2015, through the date of this decision. . . .”21
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner. . . .” The court “properly affirms the Commissioner’s decision denying
benefits if it is supported by substantial evidence and based on the application of correct legal
standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence
19(...continued)
could occasionally lift and carry 20 pounds, frequently lift and
carry 10 pounds; stand or walk four hours out of an eight-hour
day, could sit six hours out of an eight-hour day. Push/pull
would be limited to four hours for foot controls, unlimited for
hand controls. Postural limitations would be occasional ramps
and stairs, occasional ladders, balance; three-point stooping,
frequent; kneeling, crouching, and crawling, no limitations; no
manipulative limitations except foot control[.] [N]o visual or
communicative limitations. Environmental limitations: avoid
concentrated exposure to cold or heat; . . . concentrated vibra-
tion[,] concentrated fumes, odors, dust, et cetera[,] hazards [and]
unprotected heights.
Admin. Rec. at 40-41.
20Admin. Rec. at 26.
21Admin. Rec. at 27.
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is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting Andrews
v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence
supports the ALJ’s decision, [the court] review[s] the administrative record as a whole,
weighing both the evidence that supports and that which detracts from the ALJ’s conclu-
sion.’” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than
one reasonable interpretation, the court must uphold the Commissioner’s decision. Id. But,
the Commissioner’s decision cannot be affirmed “‘simply by isolating a specific quantum of
supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
Discussion
Plaintiff argues that the ALJ erred in rejecting his pain and symptom statements as
they related to his bilateral foot pain.22 Plaintiff contends that if the ALJ had not rejected his
statements about his bilateral foot pain, which is associated with his multiple sclerosis, then
the ALJ would have included limitations related to his bilateral foot pain in the RFC.
Plaintiff further contends that if the ALJ had included limitations in the RFC related to his
22The ALJ found plaintiff’s bilateral foot pain to be a nonsevere impairment at step
two, which was most certainly an error, but “omissions at step two are often harmless error
if step two is decided in plaintiff’s favor[,]” which it was in this case. Nicholson v. Colvin,
106 F. Supp. 3d 1190, 1195 (D. Or. 2015) (citing Burch v. Barnhart, 400 F.3d 676, 682 (9th
Cir. 2005)). Thus, plaintiff has not raised a step two error argument.
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bilateral foot pain, then it is likely he would not have been able to perform his past relevant
work as a university instructor, which is classified as light work.
[W]hen a claimant presents “objective medical evidence of an
underlying impairment which might reasonably produce the pain
or other symptoms [the claimant] alleged,” the ALJ is required
to determine the extent to which the claimant’s statements
regarding the intensity, persistence, and limiting effects of his or
her subjective symptoms . . . are consistent with the record
evidence as a whole and, consequently, whether any of the
individual’s symptom-related functional limitations and restric-
tions are likely to reduce the claimant’s capacity to perform
work-related activities.
Lourdes C. v. Saul, Case No. 8:19-cv-01531-JC, 2020 WL 2733666, at *3 (C.D. Cal. May
25, 2020) (quoting 20 C.F.R. §§ 404.1529(a), (c)(4); SSR 16-3p). “When an individual’s
subjective statements are inconsistent with other evidence in the record, an ALJ may give
less weight to such statements and, in turn, find that the individual’s symptoms are less likely
to reduce the claimant’s capacity to perform work-related activities.” Id. “In such cases,
when there is no affirmative finding of malingering, an ALJ may ‘reject’ or give less weight
to the individual’s subjective statements ‘only by providing specific, clear, and convincing
reasons for doing so.’” Id. (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir.
2015). “This requirement is very difficult to satisfy.” Id.
The first reason given by the ALJ for discounting plaintiff’s pain and symptom
statements was that plaintiff’s conditions improved with medication. Defendant argues that
the ALJ properly found that plaintiff’s symptoms improved with medication, “at least when
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he took it as prescribed.”23 Defendant then proceeds to argue that the record shows that
plaintiff did not always take his medications as prescribed and that he did not always follow
the recommended treatment plan. But, the ALJ did not discount plaintiff’s pain and symptom
statements because he did not follow treatment recommendations. “Long-standing principles
of administrative law require [the court] to review the ALJ’s decision based on the reasoning
and factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit
what the adjudicator may have been thinking.” Bray, 554 F.3d at 1225. The court may only
review “the reasons provided by the ALJ in the disability determination and may not affirm
the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
2007). The issue here is whether there is substantial evidence supporting the ALJ’s finding
that plaintiff’s bilateral foot pain improved with medication, not whether plaintiff was taking
his medications as prescribed and following the recommended treatment plan.
In support of his finding that plaintiff’s conditions improved with medication, the ALJ
cited to pages 560, 568, 575, 581, 595, 601, 619, 638, 644, 665, and 667 of the administrative
record. These are all treatment notes from the Algone Interventional Pain Clinic. Plaintiff
argues that this evidence does not support a finding that his bilateral foot pain improved with
medication.
Page 667 is a treatment note from August 19, 2015. Dr. Peterson noted that
“[c]hanges in medication last month have improved the patient[’]s pain[,]” but he also noted
23Answering Brief at 5, Docket No. 19.
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that “[l]ast visit I recommended prolotherapy. I explained I would like to start with one
injection and if the patient even gets 10% relief, will continue with prolotherapy. Patient is
ready to schedule at this time. Dextrose injection was queued in office today; awaiting
approval.”24
Page 665 is a treatment note from September 8, 2015. Dr. Peterson’s impression that
day was that plaintiff “is stable on current medication regime but presents today stating his
Norco is not lasting long enough, will increase Norco 10-325 from BID to TID.”25
Page 644 is a treatment note from November 8, 2017. DO Scott-Calor noted that as
for plaintiff’s foot pain, he was “stable on current medication regimen” and she advised him
“to seek better foot wear with more padding as he is currently wearing Crocs and these may
be worsening his foot pain.”26
Page 638 is a treatment note from December 7, 2017. PAC Alfonso noted that
plaintiff was “using the Broadway cream, stated he cannot tell a difference when using it”
and that he was “stable on current medication regimen[.]”27
Page 619 is a treatment note from February 15, 2018. PAC Alfonso again noted that
plaintiff “is stable on current medication regimen” but also noted that plaintiff “was recently
24Admin. Rec. at 667.
25Admin. Rec. at 665.
26Admin. Rec. at 644.
27Admin. Rec. at 638.
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changed from Tramadol to MS Contin ER. He states that the MS Contin works much better
for him.”28
Page 601 is a treatment note from May 10, 2018. PAC Alfonso noted that plaintiff’s
MS was stable on the current medication regime.
Page 595 is a treatment note from June 7, 2018. PAC Alfonso noted that plaintiff
“reported that his callouses that [were] identified last visit [are] getting better with the lotion
prescription. Foot pain at the ball of his foot is still present and no changes from last physical
exam. I will refer patient to prosthetics for custom shoe/arch support insert. . . .”29 PAC
Alfonso also noted that plaintiff was “stable on current medication regime” and refilled his
prescription for morphine.30
Page 581 is a treatment note from July 26, 2018; page 575 is a treatment note from
August 21, 2018; and page 568 is a treatment note from September 18, 2018. In all of these
notes, PAC Alfonso noted that plaintiff’s MS was stable on the current medication regime.
Page 560 is a treatment note from October 16, 2018. Plaintiff reported that the topical
cream he was using on his feet “work[ed] well for him” but the PA also “discussed injections
28Admin. Rec. at 619.
29Admin. Rec. at 595.
30Admin. Rec. at 595.
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with patient today for both feet. I would like patient to follow up in 1 month with Dr. Musa
for a re-eval. . . .”31
Defendant argues that these treatment notes show that plaintiff’s bilateral foot pain
was stable and defendant seems to suggest that means that there had been no significant
decrease in functioning. Defendant contends that the medical evidence of record shows that
while medications may not have cured plaintiff’s bilateral foot pain, these medications were
effective and allowed him to retain function throughout the relevant period. Defendant
argues that the fact that plaintiff’s doctors adjusted his medication and recommended
additional treatment modalities does not mean that plaintiff’s bilateral foot pain did not
improve with medication, as the ALJ found.
The treatment notes on which the ALJ relied do show that plaintiff’s bilateral foot
pain was stable for a period of time. But, stable is not the same thing as improving. The ALJ
did not reject plaintiff’s pain and symptom statements because his conditions were stable.
Rather, the ALJ rejected plaintiff’s pain and symptom statements because his conditions
improved with medication. But, that is not what these treatment notes show. These
treatment notes merely show that for a period of time, plaintiff’s bilateral foot pain was
stable. They do not show that plaintiff’s bilateral foot pain improved with medication. As
such, these treatment notes are not substantial evidence supporting the ALJ’s first reason for
rejecting plaintiff’s pain and symptom statements. Thus, the first reason given by the ALJ
31Admin. Rec. at 560.
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for rejecting plaintiff’s pain and symptom statements as they relate to his bilateral foot pain
was not clear and convincing.
The second reason given by the ALJ was that plaintiff’s pain and symptom statements
were inconsistent with the evidence of record. The ALJ cited to a string of “objective
clinical examinations” which showed that plaintiff “had normal coordination, full motor
strength, normal posture, and a normal gait and station. . . .”32 “Contradiction with the
medical record is a sufficient basis for rejecting the claimant’s subjective testimony.”
Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008).
Plaintiff does not dispute that his clinical examinations, at times, showed that he had
full motor strength and normal coordination, posture, gait, and station. But, plaintiff argues
that some of these examinations also showed that he was diagnosed with and being treated
for disabling bilateral foot pain.33 As a prime example, plaintiff points to a July 16, 2015,
appointment, at which he had a normal gait, but at which he also received “nerve block
injections in the bottom of his left foot.”34 Plaintiff also argues that the normal examination
findings that the ALJ cited to do not undermine his pain and symptom statements as they
relate to his bilateral foot pain because he also had abnormal exam findings. For example,
32Admin. Rec. at 24.
33Admin. Rec. at 559-560, 567-568, 574-575, 580-581, 587-588, 594-595, 600-601,
606, 612, 618, 624, 631, 637, 643, 649.
34Admin. Rec. at 489-490.
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plaintiff had reduced sensation in the calf of each leg in 2015;35 a positive Babinsky response
on June 22, 2015,36 “[d]ecreased sensation along bottom of foot bilaterally” on October 19,
2017,37 tenderness in his forefeet bilaterally on October 16, 2015,38 and “unsteady gait and
paresthesia” on November 14, 2017.39 Plaintiff argues that the ALJ ignored the abnormal
exam findings in the record and instead only focused on the evidence that did not support
disability. Plaintiff also contends that the ALJ seemed to dismiss the fact that the medical
evidence of record shows that he was being treated for disabling bilateral foot pain, treatment
that involved narcotic pain medication. Plaintiff insists that the evidence simply does not
show that his statements concerning his bilateral foot pain were inconsistent with the medical
evidence of record.
In response, defendant argues that plaintiff’s statements related to his bilateral foot
pain were plainly contradicted by the normal exam findings that the ALJ cited. Defendant
insists that “the medical record was at odds”40 with plaintiff’s statements that “[a]ll mobility
35Admin. Rec. at 400, 440.
36Admin. Rec. at 460.
37Admin. Rec. at 649.
38Admin. Rec. at 661.
39Admin. Rec. at 798.
40Answering Brief at 4-5, Docket No. 19.
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[was] affected due to increase in foot pain”41 and that he had “[e]xtreme pain on standing or
walking” and an “unsteady gait” due to his foot pain.42 Defendant argues that the medical
evidence of record shows that although plaintiff continued to report some foot pain, he had
intact or only mildly reduced sensation in his feet, was able to walk with a normal, stable
gait, and maintained normal strength and coordination.43 Defendant contends that plaintiff
is arguing that evidence which shows that he was receiving treatment for a chronic condition
means that he is disabled, but defendant argues that is not the case because a chronic
condition is not necessarily disabling. Defendant reminds plaintiff that “[w]here evidence is
susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be
upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Defendant argues that
plaintiff wants the court to accept his interpretation of the evidence, which may be
reasonable, but because the ALJ’s interpretation was also reasonable, the court must uphold
the ALJ’s conclusion.
41Admin. Rec. at 318.
42Admin. Rec. at 302.
43See Admin. Rec. at 482 (normal gait but tenderness in bilateral forefeet), 497
(sensation intact in feet, normal gait), 499 (gait stable, sensation to light touch in feet intact,
strength in ankle and toes normal), 649 (decreased sensation in bottom of feet, normal muscle
strength, gait and posture), 773 (normal casual walking, sensation intact), 777 (normal casual
walking, sensation intact), 787 (normal muscle strength, sensation intact, “normal casual
walking with appropriate gait and arm swing”), 793 (normal muscle strength, sensation
intact, “normal casual walking with appropriate gait and arm swing”), 821 (“[s]light
decreased vibration and pinprick at the toes bilaterally” and “[s]lightly antalgic gait due to
ingrown toe nail”), 837 (stable gait).
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The problem with defendant’s argument is that the ALJ’s conclusion was not
reasonable. While plaintiff did have some normal objective exam findings at times, he also
had abnormal exam findings at times and he was treated for bilateral foot pain during the
entire relevant time period, treatment that included narcotic pain medication, injections, and
topical pain medication. Such treatment is consistent with plaintiff’s statements regarding
his bilateral foot pain, and the normal exam findings to which the ALJ cited do not constitute
substantial evidence to the contrary. These normal exam findings do not render plaintiff’s
statements regarding his bilateral foot pain implausible. What the ALJ appears to have done
here is “cherry-pick evidence to support [his] findings,” rather than “review the whole
record[.]” Lannon v. Comm’r of Social Security Admin., 234 F. Supp. 3d 951, 960 (D. Ariz.
2017) (citation omitted). The record as a whole is consistent with plaintiff’s pain and
symptom statements as they relate to his bilateral foot pain. Thus, the second reason given
by the ALJ for discounting plaintiff’s pain and symptom statements as they relate to his
bilateral foot pain was not clear and convincing.
The third reason the ALJ gave for discounting plaintiff’s pain and symptom
statements was that the statements were inconsistent with plaintiff’s daily activities. The
ALJ found that plaintiff’s “level of functioning . . . included a wide range of activities
including household chores, laundry, some yard work, going out alone, driving, shopping in
stores, managing personal financial transactions, reading magazines and novels, watching
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movies, playing the guitar, and doing crossword puzzles.”44 The ALJ also noted that
“treatment records show that he was a full time caretaker of his wife who was diagnosed with
stage 4 lung cancer in June 2016 until her death in 2018. . . .”45
This was not a clear and convincing reason. “[I]f a claimant is able to spend a
substantial part of his day engaged in pursuits involving the performance of physical
functions that are transferable to a work setting, a specific finding as to this fact may be
sufficient to discredit an allegation of disabling . . . pain.” Fair v. Bowen, 885 F.2d 597, 603
(9th Cir. 1989) (emphasis omitted). However, plaintiff’s statements about his functioning
do not suggest that he was spending a substantial part of his day engaged in pursuits that
would be transferable to a work setting. Plaintiff did report that he did household chores,
laundry and some yard word, but he also reported that “[i]t takes a LONG time, and I work
at it every day”46 and that he asks his grandson “for help [with] chores, and . . . get[s] some
help from neighbors.”47 Plaintiff did report that he goes grocery shopping “3 or 4 times a
week” but he also reported that he does not go for “long. Maybe 1/2 hour. Short trips are
best.”48 As for driving, although plaintiff reported in 2017 that he was still driving, by the
44Admin. Rec. at 25.
45Admin. Rec. at 25.
46Admin. Rec. at 304.
47Admin. Rec. at 304.
48Admin. Rec. at 305.
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time of the administrative hearing, plaintiff testified that he had to arrange to get rides to his
medical appointments.49 And while plaintiff did report that he managed his personal
finances, read magazines and novels, watched movies, played the guitar, and did crossword
puzzles, there is no indication that plaintiff was able to do these activities for a substantial
part of his day. In fact, at the hearing, plaintiff testified that “after I’ve been up for a couple
of hours, I mean, I try to stay active, but I’ve, I’ve got to lay back down again.”50 As for
caring for his wife, plaintiff reported that at one point, he had “a caretaker for 2 hours a day
so he is able to go out into the yard and do work.”51
Because the ALJ erred in discounting plaintiff’s pain and symptom statements as they
relate to his bilateral foot pain, the court must consider whether to remand this matter for an
award of benefits or for further proceedings. “Remand for further administrative proceedings
is appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d
587, 593 (9th Cir. 2004) (emphasis omitted). “Conversely, where the record has been
developed fully and further administrative proceedings would serve no useful purpose, the
district court should remand for an immediate award of benefits.” Id. The court follows a
three-step analysis to determine whether a remand for benefits would be appropriate. “First,
[the court] must conclude that ‘the ALJ has failed to provide legally sufficient reasons for
49Admin. Rec. at 44.
50Admin. Rec. at 44.
51Admin. Rec. at 505.
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rejecting evidence, whether claimant testimony or medical opinion.’” Brown-Hunter, 806
F.3d at 495 (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014)). “Second, [the
court] must conclude that ‘the record has been fully developed and further administrative
proceedings would serve no useful purpose.’” Id. (quoting Garrison, 759 F.3d at 1020).
“Third, [the court] must conclude that ‘if the improperly discredited evidence were credited
as true, the ALJ would be required to find the claimant disabled on remand.’” Id. (quoting
Garrison, 759 F.3d at 1021). But, “even if all three requirements are met, [the 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.’” Id. (quoting
Garrison, 759 F.3d at 1021)).
Here, a remand for further proceedings is appropriate so that the ALJ may determine
what limitations flow from plaintiff’s bilateral foot pain and how those limitations impact
plaintiff’s capacity to perform his past relevant work and/or other work.
Conclusion
Based on the foregoing, the final decision of the Commissioner is reversed and this
matter is remanded for further proceedings.
DATED at Anchorage, Alaska, this 12th day of March, 2021.
/s/ H. Russel Holland
United States District Judge
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