Opinion
PROCEEDINGS: (IN CHAMBERS) ORDER RE: RECONSIDERATION OF REMAND DECISIONS
Michael R. Wilner.
These cases present the same questions in the same procedural posture: Did the Court clearly err in remanding these matters to the Social Security Administration for calculation and payment of benefits, and, if so, is the agency entitled to reconsideration of those decisions following the entry of judgment? In light of newly-issued Ninth Circuit authority emphasizing that remand for payment is an " extreme remedy" to be applied " only in rare circumstances, " Brown-Hunter v. Colvin, __ F.3d __, 2015 WL 4620123 at *7 (9th Cir. Aug. 4, 2015) (quotation omitted), the Court GRANTS the request for reconsideration. Both the Strickler and Yearsley actions will be remanded to the agency on an open record for further proceedings.
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The Court begins its evaluation by noting that it possesses discretion to remand a matter to the agency either for further proceedings or payment of benefits. The Ninth Circuit reviews a district court's decision regarding remedy on appeal for abuse of that discretion. Treichler v. Colvin, 775 F.3d 1090, 1098 (9th Cir. 2014); Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000) (explaining standard). That's considerably different than the de novo standard that the Circuit uses when reviewing the merits of this Court's decision to affirm or vacate the agency's administrative ruling. Id.
In exercising its discretion in a case in which the Court finds error either in the ALJ's rejection of a claimant's credibility or the evaluation of a physician's opinion, the Court applies the three-factor test described in Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Those factors rule: (1) did the ALJ err (typically, a moot point, as the Court will have already decided to vacate the decision); (2) has the administrative record been " fully developed and further administrative proceedings would serve no useful purpose"; and (3) if the " improperly discredited evidence were credited as true, " would the agency be " required" to award benefits on remand. Id. at 1020-21. A district court retains " flexibility in determining the appropriate remedy, " and may remand on an open record even if the three Garrison factors are met if there is " serious doubt" that the claimant really is disabled. Brown-Hunter, 2015 WL 4620123 at *7 (quotation omitted).
The second factor is a considerable hurdle in this analysis. A court must consider whether the administrative record contains " inconsistencies between [the claimant's] testimony and the medical evidence." Id. Remand for benefits is appropriate " only where there are no outstanding issues that must be resolved before a determination of disability can be made" with the agency. Treichler, 775 F.3d at 1106. Notably, a court must assess whether further proceedings are necessary " before considering whether to hold that the claimant's testimony is credible as a matter of law" under the third factor. Brown-Hunter, 2015 WL 4620123 at *7 (quotation omitted, emphasis in original). This is because " the touchstone for an award of benefits is the existence of a disability, not the agency's legal error." Id. Although not entirely clear in the case law, it appears that Plaintiff bears the burden of persuasion on the second factor. See Treichler, 775 F.3d at 1107 (" Because further administrative proceedings are necessary, Treichler [the claimant] has failed to satisfy the second step" of the remand-for-benefits rule).
With these principles in mind, the Court revisited the administrative record in Yearsley and Strickler, the Court's ruling to vacate the ALJ's decisions, and the parties' post-judgment submissions. As discussed in Garrison, the Court stands by its previous determination that the ALJs erred in each case (factor one). However, the Court concludes that the claimants failed to convincingly demonstrate that there would be no outstanding issues to be resolved on remand (factor two). In the Yearsley matter, the Court itself noted that the ALJ did not have complete information regarding the extent of Plaintiff's swimming and other physical activities. (Decision at 5-7.) That information could potentially be inconsistent with the medical evidence regarding her RFC. Treichler, 775 F.3d at 1106-07. As to the Strickler case, the ALJ obviously misread the treating physician's opinion and the medical evidence underlying it. (Decision at 4-5.) Yet, because the " touchstone for an award of benefits" requires looking past this obvious error, the agency should be given the opportunity to compare the full report with the extensive medical evidence before it. Brown-Hunter, 2015 WL 4620123 at *7.
But, perhaps more importantly, the Court notes the Ninth Circuit's repeated admonitions that remand-for-benefits is a remedy reserved for " rare circumstances." The Court of Appeals has issued three published decisions -- Garrison, Treichler, and Brown-Hunter -- in less than a year on this issue. The clear import of all of these decisions is that, notwithstanding the existence of serious (that is, non-harmless) error at the agency level, a district court should be exceedingly hesitant to make the ultimate disability determination on appeal. This Court did so twice in fairly quick succession in these cases.
The arguments for benefits on remand in both cases seem pretty evident. Even so, the Court accepts that they are not so rare as to require mandatory direction from this appellate position. Rather, as the circuit court reemphasized last month, the " proper approach" in these cases should be to allow the agency to take up the question of disability on an open record. Treichler, 775 F.3d at 1105. The Court will separately issue modified judgments to reflect this conclusion.
The Court's reconsideration of the remedy on remand in each case is independent from the decision on the merits its appellate ruling (which otherwise stands unamended) or any argument regarding the availability of EAJA fees (not presented to the Court yet, but typically keyed to the reasonableness of the agency's litigation position rather than the specific relief ordered on remand).
AMENDED JUDGMENT
It is the judgment of this Court that the decision of the Administrative Law Judge is VACATED, and the matter is REMANDED to the Social Security Administration for further proceedings consistent with the Court's Order.