Kaspar v. Kijakazi

Filing 20

ORDER REMANDING FOR FURTHER PROCEEDINGS: Claimant's Motion for Remand at Docket 17 is GRANTED, the Commissioner's final decision is VACATED, and the case is REMANDED to the SSA for further proceedings. Signed by Judge Ralph R. Beistline on 2/5/2024. (JDS, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
S.K., 1
Plaintiff,

Case No. 4:22-cv-00021-RRB

vs.
MARTIN O’MALLEY, Commissioner of
Social Security,

ORDER REMANDING FOR
FURTHER PROCEEDINGS
(Docket 17)

Defendant.

I.

INTRODUCTION

Claimant, S.K., filed an application for Social Security Disability Insurance
benefits (“SSDI”) and Supplemental Security Income benefits (“SSI”) on August 8, 2018,
alleging disability beginning October 7, 2002. 2 Claimant later amended her alleged onset
date to November 24, 2015. 3 Her Date Last Insured (“DLI”) for purposes of SSDI, was

1

Plaintiff’s name is partially redacted pursuant to 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), available at
https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2
Tr. 703. Claimant filed a subsequent claim for Title XVI benefits on February 19, 2021. The
Appeals Council deemed this as a duplicate, and ordered the ALJ to consolidate the claims files. Tr. 728.
3
Tr. 648.

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March 31, 2017. 4 Claimant has exhausted her administrative remedies and seeks relief
from this Court. 5 She argues that the determination by the Social Security Administration
(“SSA”) that she is not disabled, within the meaning of the Social Security Act (“the Act”), 6
is not supported by substantial evidence and that the Administrative Law Judge (“ALJ”)
committed legal errors. Claimant seeks a reversal of the decision by the SSA and a remand
for further proceedings.
The Commissioner of the SSA (“Commissioner”) filed an answer to the
complaint and an answering brief in opposition. 7 Claimant has replied. 8 For the reasons
set forth below, Claimant’s Motion for Remand at Docket 17 is GRANTED, the
Commissioner’s final decision is VACATED, and the case is REMANDED to the SSA
for further proceedings.
II.

APPLICABLE LAW

The social security system provides two types of benefits based on an
inability to engage in substantial gainful activity. The Act provides for the payment of
disability benefits (SSDI) to individuals who have contributed to the social security
program and who suffer from a physical or mental disability. 9 To be entitled to SSDI, a
claimant must establish that her disability existed on or before the date last insured. 10

4
5
6
7
8
9
10

Tr. 65.
Dockets 1, 15.
42 U.S.C. § 423; 42 U.S.C. § 1381.
Docket 18.
Docket 19.
42 U.S.C. § 423(a). SSDI is also known as Disability Insurance Benefits (“DIB”).
Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998), as amended (Jan. 26, 1999).

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The Act also supplies SSI, which provides benefits to disabled individuals
who meet low-income requirements regardless of whether the individuals have ever
worked or paid into the social security system. 11 A determination of disability benefits
under SSI, unlike SSDI, does not depend upon a showing that the disability arose during
the insured period, but is instead based in part on a showing that the claimant was disabled
and met the financial requirements for SSI. 12 Accordingly, a claimant’s “last date insured”
is not relevant to eligibility for SSI benefits.
Disability, for the purposes of both types of benefits, is defined in the Act as:
[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. 13
An individual shall be determined to be under a disability only
if his . . . 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 significant numbers either in the
region where such individual lives or in several regions of the
country. 14

11
12
13
14

20 C.F.R. § 416.202.
Id.
42 U.S.C. § 423(d)(1)(A).
42 U.S.C. § 423(d)(2)(A).

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The Commissioner has established a five-step process for determining
disability within the meaning of the Act, 15 relevant portions of which are addressed
below. 16 A claimant bears the burden of proof at steps one through four in order to make
a prima facie showing of disability. 17 If a claimant establishes a prima facie case, the
burden of proof then shifts to the agency at step five. 18
A decision by the Commissioner to deny disability benefits will not be
overturned unless it either is not supported by substantial evidence or is based upon legal
error. 19 “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
conclusion.” 20 Such evidence must be “more than a mere scintilla,” but also “less than a
preponderance.” 21 In making its determination, the Court considers the evidence in its
entirety, weighing both the evidence that supports and that which detracts from the ALJ’s
conclusion. 22 If the evidence is susceptible to more than one rational interpretation, the
ALJ’s conclusion must be upheld. 23 Courts “review only the reasons provided by the ALJ
and may not affirm the ALJ on a ground upon which he did not rely.” 24

20 C.F.R. § 404.1520(a)(4).
The test is the same, whether the claimant has applied for SSDI or SSI.
17
Treichler v. Comm’r of 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).
18
Treichler, 775 F.3d at 1096 n.1.
19
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)).
20
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
21
Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975).
22
Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
23
Gallant v. Heckler, 753 F.2d 1450, 1452–53 (9th Cir. 1984).
24
Garrison, 759 F.3d 995, 1010 (9th Cir. 2014).
15

16

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III.
A.

DISCUSSION

Procedural History
Claimant filed her initial application on August 8, 2018.

Due to the

Coronavirus Pandemic, ALJ Hebda held a telephonic hearing on April 27, 2020, but he left
the agency before issuing a written decision. 25 ALJ LaCara subsequently issued a written
decision denying disability on July 28, 2020. 26 Claimant appealed to this Court, but the
parties stipulated to a remand pursuant to sentence four of 42 U.S.C. § 405(g). 27 This Court
issued an order of remand on July 14, 2021, and the Appeals Council remanded the matter
to the ALJ on October 7, 2021, with detailed instructions. 28 The Appeals Council found
that the medical records reported a range of psychological symptoms, including presenting
as manic and distractable with thinking errors and impaired insight, and that psychotropic
medications had been ineffective. 29 The Appeals Council suggested that the ALJ “may
request the medical sources provide additional evidence and/or further clarification of
opinions,” but ALJ LaCara did not. ALJ LaCara held a new telephonic hearing on May 5,
2022, 30 and issued a decision again denying benefits on June 14, 2022. 31 This appeal
followed.

25
26
27
28
29
30
31

Tr. 703.
Tr. 714.
3:21-cv-00006-RRB at Docket 22; Tr. 721.
Tr. 726–28.
Tr. 726.
Tr. 671.
Tr. 647.

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B.

ALJ Decision
The ALJ took testimony from Claimant, as well as vocational expert John

Macleod. 32 She did not call a psychiatric or other medical expert to testify. In reaching
her conclusions, the ALJ discussed the longitudinal medical record, and relied significantly
on the written opinion of State agency psychological consultant, Mark Berkowitz, Psy.D. 33
Applying the 5-step process, the ALJ concluded that: Step 1, Claimant had
not engaged in substantial gainful activity since her alleged onset date; Step 2, Claimant
suffered from severe impairments, including lumbar spine disorder, depressive disorder,
and anxiety disorder; 34 and Step 3, Claimant’s severe impairments did not meet any
medical listings. 35
Before proceeding to Step 4, a claimant’s residual functional capacity
(“RFC”) is assessed. RFC is the most someone can do despite their mental and physical
limitations. 36 In determining a claimant’s RFC, the ALJ must base findings on “all of the
relevant medical and other evidence,” including a claimant’s testimony regarding the
limitations imposed by his impairments. 37 This RFC assessment is used at both Step Four
and Step Five. 38 In evaluating her RFC, the ALJ concluded that Claimant had the capacity

Tr. 671.
Tr. 647–63.
34
Tr. 651. The ALJ also found that Claimant’s left shoulder impairment was “not severe” because
it did not appear to cause significant limitation to perform basic work-related activities for a continuous 12month period.
35
Tr. 652.
36
Berry v. Astrue, 622 F.3d 1228, 1233 (9th Cir. 2010); 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1).
37
20 C.F.R. § 404.1545(a)(3).
38
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
32
33

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to perform medium work, with some limitations to stooping and overhead reaching, while
being off task up to ten percent (10%) of the workday, not including regularly scheduled
breaks. 39 At Step 4, the ALJ found that Claimant could perform her past relevant work as
a restaurant helper, dining room attendant, cashier checker, food server, informal waitress
and stock supervisor. 40 Accordingly, the ALJ did not reach Step 5.
In reaching her conclusions, the ALJ found that “the medical evidence does
not substantiate the claimant’s allegations of disabling symptoms or limitations,” noting
that “her statements concerning her incapacity are not borne out by the objective evidence
of record, the well-considered medical opinions, or the consistency of her own reported
and demonstrated functional ability.” 41 The ALJ described Claimant’s testimony as “out
of proportion with the workup findings,” noting “no specific treatment” for her ongoing
back pain. 42
With respect to Claimant’s mental impairments, the ALJ found Claimant’s
counseling records revealed that Claimant “presented at times as manic and distractable
and exhibited a depressed mood, labile affect, thinking errors, and impaired insight.” 43 The
ALJ noted that Claimant had been prescribed “a number of psychotropic medications,
including Cymbalta, Desyrel, Effexor, and Paxil.” 44 Nevertheless, the ALJ found that
Claimant’s treatment records contained “minimal psychiatric observations,” rendering

39
40
41
42
43
44

Tr. 654.
Tr. 662.
Tr. 655.
Tr. 655–56.
Tr. 657.
Id.

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them “inconsistent with her allegations of extremely limiting mental health symptoms.”45
Overall, the ALJ found Claimant’s self-reports unreliable in light of her daily activities. 46
C.

Arguments
The voluminous medical records are summarized generally in the briefing. 47

Claimant does not dispute the ALJ’s findings with respect to her physical capabilities, or
the impact of pain on her ability to perform activities. 48 The ALJ’s justification for finding
she was physically capable of medium work is accordingly not at issue in this appeal.
Rather, Claimant contends that the ALJ’s decision does not adequately account for all her
mental impairments, that the ALJ committed legal errors, and that accordingly the ALJ’s
decision denying her benefits is not supported by substantial evidence. 49
1.

Psychiatric records
The ALJ found that Claimant’s “subjective complaints, by themselves, do

not establish disability and cannot substitute for the objective medical evidence contained
in the record, which provides a more accurate longitudinal history of her conditions.” 50
But Claimant asserts that once the ALJ found that her self-described limitations were
generally consistent with her proven impairments, it was error for the ALJ to find that
Claimant sought disability “on subjective complaints alone.”

Id.
Tr. 658–59.
47
Docket 17 at 7–12.
48
Accordingly, the Court does not address the portions of Defendant’s brief or the ALJ opinion
discussing the physical medical evidence.
49
Docket 17 at 4.
50
Tr. 656.
45
46

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In response, Defendant asserts that the ALJ reasonably assessed the medical
opinions based on their consistency with the record. 51 Defendant argues that the ALJ
rationally discounted Claimant’s allegations because they conflicted with the objective
medical evidence and her daily activities, which is “sufficient basis for rejecting the
claimant’s subjective testimony.” 52 To that end, Defendant highlights the ALJ’s discussion
of the “regular notations” in the treatment records indicating “minimal psychiatric
observations.” 53
The Court has reviewed the records relied upon by the ALJ, who cites
specifically to eight (8) records to support her conclusion that Claimant’s “relatively benign
presentation does not corroborate her description of marked/severe social, cognitive, and
mental dysfunction.” 54 The first, Exhibit 1F page 11, is a page from Claimant’s physical
therapy records, simply noting in June 2018 that she “appears depressed, and is consistent
w/her appts behavioral health for support.” 55 Nine pages of Exhibit 3F show mostly
handwritten Psychiatric Progress Notes from August 2018, which consistently report
“major depression recurrent” highlighting the various medications that were prescribed for
same. 56 The ALJ cited to select other pages in the exhibit that show “Normal” notations
in various areas, while skipping pages in the same exhibit that indicate “Major depressive

51
52

2008)).

53
54
55
56

Docket 18.
Docket 18 at 3 (citing Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir.
Docket 18 at 4 (citing Tr. 657).
Tr. 657.
Tr. 321.
Tr. 397–400.

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disorder, recurrent, severe without psychotic features.” 57 The pages cited by the ALJ
appear to be chosen at random, citing one page that indicated Claimant’s “insight was
impaired,” 58 and others that simply indicate “no change in diagnosis” or “Mood:
Depressed and Anxious.” 59 The remaining pages cited by the ALJ contain similar entries.60
In short, the pages cited by the ALJ do not support the conclusions.
2.

Situational component
Ultimately, the ALJ found Claimant’s problems “at least in part, situational

in nature,” noting a physical therapy notation of “significant depression related to inability
to work due to pain and difficulty with all general function due to pain and lethargy related
to pain medications and antidepressants.” 61 Defendant argues that disability must arise
from medically determinable impairments, not difficult life circumstances or situational
stressors. 62
But despite any “situational component” to Claimant’s mental condition,
Defendant fails to acknowledge that the documented diagnoses of “Major Depressive
Disorder, recurrent” found repeatedly in the record yields a “medically determinable
impairment,” and that the ALJ herself found Claimant’s depressive disorder and anxiety
disorder were “severe” impairments which “significantly limit the claimant’s ability to

57
58
59
60
61
62

Compare Tr. 427 & 429; Tr. 454 & 455.
Tr. 461.
Tr. 495, 498.
See Tr. 657.
Tr. 658.
Docket 18 at 5.

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perform basic work activities.” 63 The presence of additional life stressors aggravating a
mental condition does not negate the underlying mental condition.
3.

Claimant’s mental limitations
State agency psychological consultant, Mark Berkowitz, Psy.D., evaluated

Claimant’s medical records for a Mental Residual Functional Capacity Assessment in July
2019. 64 Subsequently, ALJ Hebda called a non-examining licensed psychologist, Cheryl
Buechner, Ph.D., to testify at the 2020 hearing. 65 No psychiatric expert testified at the
2022 hearing before Judge LaCara.
ALJ LaCara found that Dr. Berkowitz’s 2019 evaluation was consistent with
the April 2020 opinion of Dr. Buechner, and she relied upon the opinions of the two nonexamining psychiatric experts in reaching her conclusion that Claimant’s mental
functioning was not disabling. 66 But the common theme of Dr. Berkowitz’s evaluation and
the testimony of Dr. Buechner was the lack of sufficient evidence. The ALJ found that Dr.
Berkowitz concluded in 2019 that “there was insufficient evidence prior to the date last
insured.” 67 And Dr. Buechner opined in 2020 that “there’s not enough information really
in the record to know is, is this a person who in a fatigued state would benefit from nonrepetitive routine work or if that might be better. There’s, there’s insufficient information
specific to that to allow me to, to comment on the functional parts of that.” 68

63
64
65
66
67
68

Tr. 651.
Tr. 87.
Tr 731.
Tr. 661.
Id.
Tr. 750.

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Despite a lack of sufficient evidence prior to the date last insured,
Dr. Berkowitz did opine that Claimant had moderate limitations in her ability to
maintain attention and concentration for extended periods, and to perform activities
within a schedule, maintain regular attendance, and be punctual within customary
tolerances. 69 The ALJ extrapolated from this opinion, without explanation, that Claimant
would be off-task ten percent (10%) of the workday, and presented such a hypothetical to
the Vocational Expert. But Claimant argues that the findings by Dr. Berkowitz “plainly
illustrate that the full effect of Plaintiff’s mental impairments cannot reasonably be reduced
to a singular limitation that she will off-task up to 10% of the workday,” arguing that her
limitations, including the inability to complete a normal workday and workweek without
interruptions from psychologically based symptoms, are not encompassed in the ALJ’s
singular limitation to needing to be “10% off task.” 70 Rather, Claimant details the medical
records which reflect her descriptions of difficulty with concentration, memory loss, and
motivation, including with respect to her own personal hygiene and household chores,
which she argues “patently support[] a greater off task limitation than 10%.” 71 She argues
that “the record is replete with evidence supporting the need for additional limitations more
than just the 10% off-task limitation,” complaining that such a limitation was “solely the
product of the ALJ’s mind since no medical professional . . . expressed this limitation.”72
For the reasons discussed below, the Court agrees.
Id.
Docket 17 at 15.
71
Docket 17 at 16 (citing Tr. 53, 590, 593, 620, 1675, 1708, 1727, 1792, 1795, 1798, 1804, 1810,
1812, 1825, 1826).
72
Docket 17 at 15–16.
69
70

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4.

Onset and duration of depression and anxiety
The ALJ found that “prior to the date last insured, there is little to suggest

any mental health impairment,” concluding that Claimant was diagnosed with major
depressive disorder in March 2018. 73 This finding is incorrect, as this Court notes
diagnosis for “Major depressive disorder, recurrent severe without psychotic features” at
least as early as October 2017. 74 Granted, this date still post-dates the date last insured.
The Court declines to speculate whether Claimant can show major depressive disorder
prior to her DLI, but suggests that the record is clear that she struggled with depression and
anxiety after her DLI, when SSI benefits are still available. Claimant had been in treatment
for “over a year” as of April 2022, and continued to struggle with depression and anxiety
at that time, while taking medication prescribed by a psychiatrist. 75
5.

Vocational expert opinion
Claimant referred to psychotherapy and started Effexor at the beginning of

2018. 76 Over the next year of counseling, she endorsed feeling overwhelmed (particularly
with filling out paperwork), feelings of worthlessness and hopelessness with thoughts of
dying, sleep disturbance, irritability, lack of motivation and no energy and lack of interest
in activities that she used to enjoy. During these counseling sessions, treatment sources

73
74
75
76

Tr. 657 (citing Tr. 398).
Tr. 480.
Tr. 1825.
Tr. 400, 402, 407.

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clinically observed a depressed and sad mood, manic, labile, and overwhelmed affect,
impaired insight, and disorganized thought flow and easy distractibility. 77
Although the ALJ found that Plaintiff had only mild limitations in
socializing, Claimant argues that “the record demonstrates that she repeatedly has selfisolating behaviors and anxiety related to being outside her home.” 78 She complains that
no additional limitations related to social functioning were included in the RFC.
Claimant argues that all of this is significant because it impacts the RFC
presented to the VE. The VE testified that if the hypothetical person was additionally
limited to only occasional interaction with the public, all Claimant’s past jobs would be
Claimant also points out that pursuant to the VE’s testimony, if her

eliminated. 79

impairments cause her to be off-task even just eleven percent (11%), she would be
unemployable, 80 rendering the ALJ’s unsupported finding of ten percent (10%) off-task a
critical lynchpin in the decision.
D.

Conclusion
A decision of the Commissioner to deny benefits will not be overturned

unless it either is not supported by substantial evidence or is based upon legal error.
“Substantial evidence” is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Having carefully reviewed the administrative record, the
Court concludes based upon the record as a whole that the ALJ’s selective reading of the
77

612; 613).
78
79
80

Docket 17 at 8 (citing Tr. 397; 399; 410; 426–29; 455; 469; 473; 485; 547; 602; 604; 609; 610;
Docket 17 at 16 (citing Tr. 57; 404; 508; 653, 685; 1714; 1726; 1826).
Tr. 695.
Docket 17 (citing Tr. 693).

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record does not provide substantial evidence supporting her decision to deny benefits. 81
The Court agrees that conflating multiple distinct limitations related to concentration,
persistence, and pace to a singular limitation of “being off task 10% of a typical workday”
is pure lay analysis. The ALJ has provided no rationale for the finding that Claimant would
be off-task ten percent (10%) of a workday due to mental limitations.
To the extent that the ALJ found Claimant’s self-reports of mental limitations
to be unreliable, the Court finds that the ALJ’s reasoning is not persuasive. Her findings
that Claimant held a driver’s license, lived alone, had a dog, and volunteered at a local
greenhouse do not amount to substantial evidence that Claimant’s mental impairments are
“less limiting than alleged.” 82 Neither is the Court persuaded by the ALJ’s reasoning that
Claimant’s decision to cancel counseling sessions for a month while family was visiting as
evidence that “the intensity and persistence of the claimant’s physical and mental
impairments are less limiting than alleged.” 83 “The Social Security Act does not require
that claimants be utterly incapacitated to be eligible for benefits, . . . and many home
activities are not easily transferable to what may be the more grueling environment of the
workplace, where it might be impossible to periodically rest or take medication.” 84
If an ALJ commits legal error, courts will uphold the decision if it is
harmless. 85 An error is harmless if it is “inconsequential to the ultimate nondisability

Diedrich v. Berryhill, 874 F.3d 634 (9th Cir. 2017) (an ALJ may not rely on “cherry pick[ed]”
evidence to support a denial of benefits).
82
Tr. 658–59.
83
Tr. 658.
84
Fair v. Bowen, 885 F.2d at 603.
85
Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).
81

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determination.” 86 This is not harmless error. “The hypothetical an ALJ poses to a
vocational expert, which derives from the RFC, ‘must set out all the limitations and
restrictions of the particular claimant.’ Thus, an RFC that fails to take into account a
claimant’s limitations is defective.” 87 Here, the ALJ failed to fully account for Claimant’s
mental limitations and failed to explain her exclusion of Dr. Berkowitz’s limitations,
despite finding his opinion persuasive.
Claimant argues that “the required analyses were not properly performed,
resulting in findings not reasonably or logically bridged to the record. As these findings
cannot be crafted from whole cloth on appeal, the only appropriate remedy is remand.”
The Court agrees. Remand is required. 88
The Court declines to limit the scope of remand to only SSI benefits.
VI.

CONCLUSION

Based on the foregoing, IT IS HEREBY ORDERED that Claimant’s
motion at Docket 17 is GRANTED and this matter is REMANDED for further
proceedings.
IT IS SO ORDERED this 5th day of February, 2024, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge

Id. (citation omitted).
Valentine v. Comm’r SSA, 574 F.3d 685, 690 (9th Cir. 2009) (internal citation omitted).
88
If the district court finds error in an ALJ’s decision, the court may remand the case for additional
evidence or remand for payment of benefits. Trevizo v. Berryhill, 870 F.3d 664, 682 (9th Cir. 2017). Here,
the parties agree that in the event of a remand, further proceedings are warranted.
86
87

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