MICHAEL H. SIMON, District Judge.
Ulmaskhon Rustamova ("Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for supplemental security income under Title II of the Social Security Act. United States Magistrate Judge Stacie F. Beckerman issued Findings and Recommendation ("F & R") in this case on March 19, 2015. Dkt. 23. Judge Beckerman recommended granting the Commissioner's motion to remand for further administrative proceedings. Dkt. 20. Plaintiff timely filed objections, to which Defendant responded. Dkts. 25, 26. For the reasons below, the Court declines to adopt the F & R and remands this case for the immediate award of benefits.
In a social security case decided in the first instance by a magistrate judge, review of the magistrate's opinion entails review of the underlying social security decision. Therefore, two decisions in this case are subject to review by this Court — the first by the Commissioner, and the second by Judge Beckerman. By statute, the two decisions are entitled to two different standards of review.
Under the Federal Magistrates Act ("Act"), the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). If a party files objections to a magistrate's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed. R.Civ.P. 72(b)(3). For those portions of a magistrate's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ("There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed."). Nor, however, does the Act "preclude further review by the district judge[ ] sua sponte ... under a de novo or any other standard." Thomas, 474 U.S. at 154, 106 S.Ct. 466. Indeed, the Advisory Committee Notes to Federal Rule of Civil Procedure 72(b) recommend that "[w]hen no timely objection is filed," the Court review the magistrate's recommendations for "clear error on the face of the record."
The Court must affirm the Commissioner's decision if it is free of legal error and its findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989). "Substantial evidence" means "more than a mere scintilla but less than a preponderance." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews, 53 F.3d at 1039). Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005).
In reviewing the Commissioner's decision, the Court "must consider the entire record as a whole." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.2007) (quotation marks omitted). The Court may not affirm the Commissioner "simply by isolating a specific quantum of supporting evidence"; nor may the Court affirm the Commissioner on a ground upon which the Commissioner did not rely. Id. (quotation marks omitted); see also Bray, 554 F.3d at 1226. But as long as "the agency's path may reasonably be discerned," the Court must affirm the agency's decision, even though the agency may have explained it with "less than ideal clarity." Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir.2012) (quotation marks omitted).
The Court adopts the following discussion of the facts and procedural history of this case as articulated by Judge Beckerman in the F & R:
Plaintiff is a forty-nine-year-old Uzbek woman who has the equivalent of an eighth-grade education. Her past relevant work experience consists of employment as a dairy farm laborer. She cannot speak, read, or understand English. After immigrating to the United States from Russia, where she received a disability pension, Plaintiff filed an application for supplemental security income on November 29, 2006, alleging a disability onset date of November 1, 2004. Plaintiff claims that she is disabled and unable to work due to
This is Plaintiff's second appeal to the district court. In Rustamova v. Astrue, No. 3:11-cv-751-BR, 2012 WL 2178981, at *3 (D.Or. June 13, 2012) ("Rustamova I"), as in the present litigation, the Commissioner acknowledged that the Administrative Law Judge ("ALJ") committed reversible error during administrative proceedings. In Rustamova I, the Commissioner requested, and was granted, a remand for further proceedings, so that the ALJ could: (1) reevaluate the opinion of a physician; (2) further consider Plaintiff's mental impairments of posttraumatic stress disorder and auditory hallucinations; (3) properly consider the lay witness testimony provided by Plaintiff's son; (4) consider Plaintiff's obesity; (5) update the record to include a Psychiatric Review Technique Form and/or psychiatric consultative examination; (6) reassess Plaintiff's residual functional capacity assessment ("RFC"); and (7) "if necessary, consider further at [step-five of the sequential process], with the assistance of additional testimony by a [vocational expert], whether [Plaintiff] is able to perform other work in the national economy[.]" Id. at *3 & *7.
As in this second appeal, the parties in Rustamova I disputed whether the Commissioner had met her step-five burden of proving that Plaintiff is able to perform other work in the national economy. At the first administrative hearing in January 2010, a vocational expert ("VE") testified that there "may be some types of assembly [jobs] that would be feasible ... but certainly not the full range of those occupations." AR 423. The VE further testified that while thousands of relevant assembly jobs exist, those numbers would be reduced in light of Plaintiff's sedentary limitations and language barrier:
AR 424. The ALJ asked, "[w]ould you say a thousand — or more than a thousand would be available at the sedentary level?" Id. The VE responded, "at the sedentary level, yes[,]" but then clarified, "[b]ut if there's complete illiteracy in English, even in terms of giving and receiving basic instructions, that's — in my opinion, that's a more significant barrier by far than the sedentary restriction." Id.
In his original opinion, the ALJ concluded that based on the above VE testimony that "more than 1,000 jobs would be available at the sedentary level," there were existing jobs in significant numbers in the national economy that Plaintiff could have performed, and therefore the ALJ found Plaintiff to be "`not disabled.'" AR 18. On appeal, the Rustamova I court, reviewing the VE testimony, found that "the VE appears to testify that fewer than 1,000 small-products assembly jobs would actually be available to Plaintiff." Rustamova I, 2012 WL 2178981 at *7 (emphasis added). Noting that there is no "bright line [rule] as to the number of jobs that constitute a `significant number' at [s]tep [f]ive," the Rustamova I court concluded that the VE's testimony did "not clearly establish the Commissioner failed to meet h[er] burden at [s]tep [f]ive." Id. The Rustamova I court remanded the case for further proceedings. Id.
In a written decision issued on September 24, 2013, the ALJ applied the five-step sequential evaluation process, and found that Plaintiff was disabled on and after March 1, 2011, but was not disabled prior to March 1, 2011. AR 430-443. A year later, the Social Security Administration Appeals Council denied Plaintiff's petition for review, making the ALJ's order the final agency order. Plaintiff timely appealed.
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir.2011); see also 20 C.F.R. §§ 404.1520(DIB), 416.920(SSI); Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d. 119 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir.2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.1999); Yuckert, 482 U.S. at 140-41, 107 S.Ct. 2287. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Id.; see also 20 C.F.R. §§ 404.1566, 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.
At the first step of the five-step sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 1, 2004, the alleged disability onset date. At the second step, the ALJ found that Plaintiff had the severe impairments of degenerative disc disease of the lumbar spine, obesity, degenerative joint disease in the left knee, depression, posttraumatic stress disorder, and anxiety disorder.
At the third step, the ALJ found that Plaintiff's combination of impairments were not the equivalent of those on the Listing of Impairments prior to March 1, 2011, the date she became disabled.
At the fourth step, the ALJ noted that Plaintiff was unable to perform any past relevant work. At the fifth step, the ALJ found that, in light of Plaintiff's age, education,
The Commissioner has now conceded that "[i]t was error for the ALJ to rely upon the earlier vocational expert testimony, as this opinion was found to not be based on substantial evidence largely forming the basis of the remand." Def.'s Br. & Mot. Remand at 4.
The only issue before the Court is whether this case should be remanded for further proceedings or for an award of benefits. In explaining her recommendation to remand for further proceedings, Judge Beckerman wrote the following:
Dkt. 23 at 7. Both the F & R and the Commissioner cite Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090 (9th Cir. 2014), and Strauss v. Comm'r of the Soc. Sec. Admin., 635 F.3d 1135 (9th Cir.2011), for the proposition that remand for further proceedings is required in this case. The Court agrees with the F & R that it would be unfair to remand this case to allow the Commissioner a third opportunity to satisfy her burden at step-five of the sequential evaluation process. As explained below, however, the Court disagrees with the F & R and the Commissioner that a remand for further proceedings in this case is required by Treichler, Strauss, or other Ninth Circuit precedent.
The Commissioner and the F & R rely primarily on the Ninth Circuit's recent decision in Treichler for the proposition that remand for further proceedings is mandatory in this case. Treichler involved the application of the "credit-as-true" or "Varney"
The claimant in Treichler complained of lower back pain, right knee pain, ankle pain, difficulty emptying his bladder, and fecal incontinence after suffering a work-related injury. 775 F.3d at 1094. Following an unfavorable decision by the Commissioner, the claimant sought judicial review, and the district court affirmed in part and reversed and remanded in part. Id. at 1093. The claimant appealed, seeking a remand for payment of benefits based on the ALJ's improper adverse credibility finding. Id. The Ninth Circuit determined that the ALJ erred in failing to identify what portions of the claimant's testimony were not credible and in failing to explain how the ALJ arrived at that conclusion. Id. But, it rejected the argument that claimant's testimony regarding his urinary incontinence, fecal incontinence, and disabling pain, combined with the VE's testimony that a person with such issues would not be able to maintain employment, warranted a remand for payment of benefits. Id. at 1103. The Ninth Circuit determined that the record contained "significant factual conflicts" between the claimant's testimony and the objective medical evidence. Id. at 1104. Specifically, the claimant testified that he would lose control of his bladder during the day, though treatment notes showed that the urinary incontinence issue occurred only at night. Id. He also testified that he experienced fecal incontinence, but the one medical report on the issue stated that the claimant complained of constipation and denied problems with fecal incontinence. Id. The claimant further testified that he had debilitating pain twice a week, though he reported to a physician that his pain medication made life tolerable and stated, during the hearing, that the medication alleviates a lot of the pain. Id. Based on these conflicts in the medical evidence, the Ninth Circuit concluded that a remand for further proceedings, rather than payment of benefits, was the appropriate remedy. Id. at 1107.
Here, unlike Treichler, this case involves neither conflicting medical evidence nor application of the credit-as-true rule. Instead, the only question here is whether the Court has the discretion to remand for an award of benefits where the Commissioner has twice failed to meet her burden at step five of the sequential analysis. The Ninth Circuit has long held that the reviewing court has the discretion to remand a case either for further administrative proceedings or for a finding of disability and award of benefits. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.1989). Treichler does not disturb this longstanding principle, and in fact, reiterates that the remand for benefits is discretionary. As the court in Treichler explained:
Treichler, 775 F.3d at 1100 (citation and quotation marks omitted). Accordingly, Treichler does not require a remand for further proceedings where the Commissioner has twice failed to meet her burden at step five of the sequential analysis.
Strauss similarly does not require a remand for further proceedings where, as in this case, the Commissioner has twice failed to meet her burden at step five of the sequential analysis. The Commissioner emphasizes language in Strauss stating that "[a] claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ's errors may be." Strauss, 635 F.3d at 1138 (citing Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 357(7th Cir.2005)). Strauss, however, is distinguishable.
The instant case involves the Commissioner's failure to meet her burden of proof. Treichler involved an ALJ's procedural error. Strauss, however, involved neither the Commissioner's failure to meet her burden of proof, nor a procedural error with respect to the ALJ's disability determination on the merits. Rather, Strauss involved the ALJ's failure to develop the record as required by a district court's prior order. Strauss, 635 F.3d at 1137. Thus, the district court in Strauss did not undertake to determine whether the claimant was entitled to benefits under the Social Security Act, nor did it credit as true evidence that the ALJ had improperly excluded. Id. at 1128. Instead, the district court remanded for an award of benefits based solely on the ALJ's failure to follow the district court's prior orders. Id. It was in this context that the Ninth Circuit held that the district court may not remand for a payment of benefits "without the intermediate step of analyzing whether, in fact, the claimant is disabled." Id. Moreover, the Court in Strauss maintained the longstanding rule that a district court may remand for payment of benefits rather than for further proceedings, provided "the record has been developed fully and further administrative proceedings would serve no useful purpose." Id. at 1138 (citing Benecke, v. Barnhart, 379 F.3d 587, 593 (9th Cir.2004)). Accordingly, Strauss does not mandate a remand for further proceedings where the ALJ has repeatedly failed to meet its burden at step five of the sequential analysis.
The final question requiring resolution is whether the Court should, at its discretion, remand this case for further proceedings or for an award of benefits. Under the Social Security Act, "courts are empowered to affirm, modify, or reverse a decision by the Commissioner `with or without remanding the cause for a rehearing.'" Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir.2014) (emphasis in original) (quoting 42 U.S.C. § 405(g)). Although a court should generally remand to the agency for additional investigation or explanation, a court has discretion to remand for immediate payment of benefits. Treichler, 775 F.3d at 1099-1100. The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate when no useful purpose would be served by further administrative proceedings or when the record has been fully developed and the evidence is insufficient to support the Commissioner's decision. Id. at 1100.
Here, no additional proceedings are necessary. It is undisputed that Plaintiff has made her prima facie case by meeting her burden at steps one through four of the sequential analysis. See Tackett, 180 F.3d
Further, although the district court in Rustamova I exercised its discretion to remand for further proceedings, it was not required to do that. In the VE's testimony regarding whether Plaintiff is able to perform other work in the national economy, the VE testified that, although thousands of relevant jobs exist, those numbers would be reduced in light of Plaintiff's sedentary limitations and language barrier. The VE further testified:
AR 424 (emphasis added). Thus, according to the VE, there is no meaningful or accurate way to determine whether Plaintiff is able to perform other work existing in the national economy. Based on this testimony, the Court concludes that remand for further proceedings will serve no useful purpose and would do nothing other than encourage speculation. Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir.2012) (citation omitted) (holding that a court may direct an award of benefits "where no useful purpose would be served by further administrative proceedings and the record has been thoroughly developed."). Moreover, allowing the Commissioner a third opportunity to try to meet her burden at step five would create the very "`heads we win; tails, let's play again' system of disability benefits adjudication," that the
For all of these reasons, because the Commissioner did not produce evidence that Plaintiff could perform work that exists in significant numbers in the national economy and a second remand will serve no useful purpose based on the VE's testimony, the Court concludes that Plaintiff is disabled and a remand for further benefits is appropriate.
The Court declines to adopt the F & R. Dkt. 23. The Commissioner's decision is REVERSED and REMANDED for the immediate award of benefits.
