Szeremi v. Barnhart
Order on Motion for Summary Judgment, Order on Motion to Remand to Agency
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
JO ANNE B. BARNHART
Commissioner of Social Security,
ORDER FROM CHAMBERS
Motions at Dockets 8 & 12]
I. MOTIONS PRESENTED
At docket 8, Teresa Szeremi has filed a brief requesting that the court reverse
the adverse decision by the Commissioner of Social Security (“Commissioner”) on her
application for an award of Disability Insurance Benefits and Supplemental Security
Income (collectively, “benefits”) and remand her case for either an award of benefits or
further administrative proceedings. At docket 12, the Commissioner has filed a “motion
for remand” that she intended would serve as a response to Szeremi’s brief at
docket 8,1 but which the Clerk of Court is tracking as a separate motion. At docket 14,
Szeremi has filed a reply in support of her brief at docket 8. Oral argument has not
been requested and would not assist the court.
Doc. 13, p. 3.
II. STANDARD OF REVIEW
This court must “uphold the [ALJ’s] decision denying benefits if the [ALJ] applied
the proper legal standard and there is substantial evidence in the record as a whole to
support the decision.”2 Substantial evidence is “more than a mere scintilla, but less than
An Administrative Law Judge (“ALJ”) denied Szeremi’s application for benefits
and the Social Security Administration’s Appeals Council denied review of her appeal of
the ALJ’s decision. At that point, the ALJ’s decision became the Commissioner’s final
decision. Szeremi then filed an action in this court seeking reversal of the ALJ’s
decision. The Commissioner agrees the ALJ’s decision is flawed and must be reversed.
The parties disagree to some extent about particular flaws and the scope of
administrative proceedings on remand. The court will limit its discussion to those
A. The ALJ Erroneously Rejected Dr. Gary Gerlay’s Opinion
The ALJ rejected Dr. Gary Gerlay’s opinion on Szeremi’s inability to perform
sedentary work. Szeremi points to three grounds on which the ALJ allegedly relied and
asserts each is improper. She argues the ALJ erred by 1) considering the fact Gerlay
offered his opinion in response to questions by Szeremi’s counsel; 2) failing to
adequately explain how Gerlay’s opinion about Szeremi’s limitations was undercut by
her activities; and 3) criticizing Gerlay for giving an opinion based in part on Szeremi’s
mental health even though he is not a psychiatrist. The Commissioner agrees – as
does the court – that the first alleged error is a flaw in the ALJ’s analysis,4 and does not
comment on the other two alleged errors. The court agrees the second alleged error
Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (citing Hoffman v. Heckler, 785
F.2d 1423, 1425 (9th Cir. 1986)).
Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (quoting Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995)).
Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998).
also is a flaw. The ALJ gave “less weight” to Gerlay’s opinion “because [Szeremi]
testified to varied other activities,”5 but the ALJ did not specify which activities were
questionable or explain how those activities cast doubt on Gerlay’s opinion. Thus, the
ALJ’s reason does not meet the required “clear and convincing” standard for rejecting
Gerlay’s opinion.6 As for the third alleged error, it is not clear the ALJ actually criticized
Gerlay’s opinion on that ground. But, even if the ALJ had relied on that ground, it would
not have been a sufficient reason to reject Gerlay’s opinion.7
Because the ALJ erred in rejecting Gerlay’s opinion, the court will credit it as
true. The Commissioner argues that instead of crediting Gerlay’s opinion as true, Ninth
Circuit case law allows this court to remand for a proper evaluation of his opinion and
urges the court to do that. Assuming the court has that option, the court will not
exercise it. Given Szeremi’s long wait for benefits – four years and counting – and the
prospect of substantial delay on remand, justice would not be served by allowing an ALJ
to take a second look at Gerlay’s opinion.
B. The ALJ Made Inconsistent Findings Regarding Szeremi’s Residual Functional
Szeremi and the Commissioner agree the ALJ made inconsistent findings about
Szeremi’s residual functional capacity (“RFC”). Szeremi does not say what should be
done about that, but the Commissioner suggests “[t]his case should be remanded for
the ALJ to give further consideration to [Szeremi’s] maximum RFC and to provide
appropriate rationale with specific references to record evidence in support of the
assessed limitations.”9 The court agrees that is the appropriate course of action.
Doc. 5, administrative record, p. 48.
Reddick, 157 F.3d at 725 (citing Lester, 81 F.3d at 830).
Lester, 81 F.3d at 833 (citing Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)).
Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (citations omitted).
Doc. 13, p. 11.
C. The ALJ Must Reconsider Dr. Susan Klimow’s Opinion
The parties agree the ALJ erred with respect to Dr. Susan Klimow’s opinion, but
disagree about what the error was. Szeremi argues the ALJ failed to consider Klimow’s
opinion, while the Commissioner contends the ALJ failed to give reasons for rejecting it.
Whatever the error, the Commissioner suggests the appropriate remedy is to remand
for reconsideration of Klimow’s opinion. The court agrees that is the proper remedy.
D. The ALJ Erred in Evaluating Szeremi’s Mental Impairment
The parties agree 1) the ALJ did not follow the required method for evaluating
Szeremi’s mental impairment; 2) the ALJ did not consider all the evidence that is
relevant to that issue; and 3) substantial evidence does not support the ALJ’s
conclusion that Szeremi’s mental impairment is not severe. Consequently, this case
must be remanded for a proper evaluation of Szeremi’s mental impairment.
The following comments are intended to streamline that evaluation. The parties
agree Szeremi suffered a mental impairment for longer than twelve months and so the
court orders the ALJ on remand to accept that fact as true. Also, the ALJ should not
base any conclusion about Szeremi’s mental impairment on whether or not she sought
treatment for her condition. In the Commissioner’s words, “it is a questionable practice
[for an ALJ] to chastise one with a mental impairment for the exercise of poor judgment
in seeking rehabilitation.”10 Finally, the parties agree the ALJ was required to, but did
not, evaluate the opinion of Dr. Ron Feigin, who concluded Szeremi has a severe
mental impairment. On remand, the ALJ must evaluate Feigin’s opinion.
E. The ALJ Must Re-Evaluate Szeremi’s Credibility
The parties agree the ALJ’s evaluation of Szeremi’s credibility was defective but
disagree about why. Szeremi argues the ALJ did not properly analyze why her ability to
undertake certain activities impeaches her credibility, while the Commissioner contends
the ALJ’s conclusion about Szeremi’s credibility was undermined by the ALJ’s flawed
consideration of her mental impairment. The court finds both parties’ concerns to be
Id., p. 7.
valid and orders that Szeremi’s credibility be re-evaluated on remand in light of those
F. The ALJ’s “Step Five” Finding Was Defective
The ALJ’s “step-five” finding was that there are specific, sedentary jobs available
to Szeremi. The parties agree that finding is defective because the ALJ did not cite data
on the incidence of those jobs in this region. Accordingly, this case must be remanded
for a new step-five finding, if such a finding remains necessary.
G. Proceedings on Remand
Szeremi urges the court to remand for an award of benefits or, if the court cannot
determine “that Szeremi was clearly disabled on the existing record,” for further
proceedings consistent with this order and the concerns it highlights.11 The court will do
both. On the record, the court can determine that Szeremi was disabled, but only for
the period between February 14, 2003, and July 30, 2004. Those dates are the day
Gerlay began treating Szeremi and the day he gave an opinion about her limitations,
respectively.12 He confined his opinion, which has been credited as true, to the period
between those dates.13 According to Gerlay, Szeremi “[a]bsolutely [could] not” work a
sedentary job eight hours a day, five days a week.14 Thus, under Social Security
regulations, between February 14, 2003, and July 30, 2004, Szeremi was disabled as a
matter of law15 and a remand for an award of benefits accruing during that time is
appropriate. Further proceedings are required to resolve the issues necessary to
determining whether Szeremi was disabled from the alleged onset date to February 14,
2003, and after July 30, 2004.
Doc. 14, p. 5.
Doc. 5, administrative record, pp. 370, 374.
Id., p. 370.
Id., p. 374.
See SSR 96-8p at 1, 1 n.2 (Szeremi represents the exception set forth in footnote two
for part-time work does not apply here and the Commissioner does not contest that
For the reasons set out above, the motion at docket 8 is GRANTED in part and
DENIED in part. The ALJ’s decision is REVERSED, and this case is REMANDED
under sentence four of 42 U.S.C. § 405(g) for 1) an award of benefits accruing between
February 14, 2003, and July 30, 2004, inclusive of those dates, and 2) further
proceedings on the issue of Szeremi’s disability from the alleged onset date to
February 14, 2003, and after July 30, 2004. Also, the Clerk of Court is directed to
terminate tracking the brief filed at docket 12 as a separate motion and instead treat it
as an opposition to the motion at docket 8.
DATED at Anchorage, Alaska, this 5th day of June 2006.
JOHN W. SEDWICK
UNITED STATES DISTRICT COURT JUDGE
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