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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

WILLIAM R. BURKETT, JR.,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner 

of Social Security Administration,

Defendant.

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Case No. CV05-1856-RSM

REPORT AND RECOMMENDATION

I. INTRODUCTION AND SUMMARY CONCLUSION

Plaintiff William R. Burkett, Jr. appeals a final decision of the Commissioner of the

Social Security Administration (“Commissioner”) that denied his application for Disability

Insurance Benefits (“DIB”) under Title II of the Social Security Act after a hearing before an

administrative law judge (“ALJ”). Plaintiff also seeks an award of benefits on a Supplemental

Security Income (“SSI”) application that has not yet been processed by the Commissioner and

was not considered by the ALJ. For the reasons set forth below, I recommend that plaintiff’s

SSI claim be dismissed for lack of subject matter jurisdiction. I further recommend that the

decision of the Commissioner regarding plaintiff’s DIB application be reversed and that the

case be remanded for further administrative proceedings, concurrent with plaintiff’s SSI claim. 

II. FACTS AND PROCEDURAL HISTORY

Plaintiff is a 62-year-old man with a high school education. AR 132, 135. He worked

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as an information officer and spokesman for the Washington State Patrol for more than

fifteen years. AR 127, 506. He has also intermittently performed work as a freelance writer

and editor. AR 143-47.

Beginning in the late 1980s plaintiff began to experience difficulty staying awake

during the day and his lengthy morning commute became difficult. AR 126, 505. In 1992,

plaintiff was diagnosed with sleep apnea and was prescribed a continuous positive airway

pressure (“CPAP”) machine to alleviate the symptoms of his sleep apnea. AR 126, 505-06.

However, the CPAP frequently inflames his nasal allergies, which in turn, renders the device

ineffective. AR 506-08. Plaintiff’s employer arranged for a flexible work schedule and other

accommodations for his irregular sleep patterns. Id. In 1993 however, new management did

away with these accommodations and plaintiff was required to be at work on time each

morning. AR 507. Plaintiff was unable to meet that expectation and he was terminated. AR

126, 507.

On May 18, 2000, plaintiff filed an application for DIB. AR 69-71. He alleged that he

had become disabled by September 30, 1993, due to sleep apnea complicated by an allergic

reaction triggered by the CPAP. AR 69, 126. He later amended his claimed onset date to

December 30, 1998, to account for earnings records that suggested he may have engaged in

substantial gainful activity after the 1993 date. AR 489-96. Plaintiff’s application was denied

both initially and upon reconsideration. AR 41-51. On August 22, 2002, plaintiff requested an

administrative hearing before an ALJ. AR 52.

On October 17, 2000, while his DIB application was pending, plaintiff filed an

application for SSI. AR 152, 499-500. Although the application was submitted, the Social

Security Administration (“SSA”) was unable to process it because it was incomplete and

unsigned. AR 483-84, 503. It is unclear whether the plaintiff corrected the deficiencies and

the Commissioner concedes that the application may have been lost. AR 154-56; Dkt. No. 22

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at 4. In May of 2002, plaintiff contacted the office of U.S. Senator Patty Murray to assist him

with following up on his SSI application. AR 151-53. On May 30, 2002, plaintiff filed a

second application for SSI, but was denied because he did not financially qualify for benefits at

that time. AR 477. There is no indication that a timely administrative appeal of this decision

was ever filed. 

On March 18, 2004, a hearing was held before an ALJ to review the denial of plaintiff’s

DIB application. AR 485-545. At the time of the hearing, the ALJ had no record of the SSI

applications. AR 499-504. Plaintiff and his attorney had apparently expected that both the

DIB and his SSI applications would be considered by the ALJ. Dkt. No. 16 at 16, AR 499.

The hearing proceeded solely on the issue of determining disability for purposes of the DIB

application. AR 504.

On August 21, 2004, the ALJ issued a decision finding that plaintiff was not disabled

prior to December 31, 1998, his date last insured (“DLI”). AR 19-36. Although the ALJ

found that plaintiff suffered from severe physical impairments, namely obesity and sleep apnea,

she concluded that plaintiff was nonetheless able to perform his past relevant work. AR 35-36. 

Proceeding pro se, plaintiff requested administrative review of the decision and submitted

additional materials. AR 8-18, 443-75. On August 20, 2005, the Appeals Council denied

plaintiff’s request for review. AR 5-7. On November 18, 2005, plaintiff filed the present civil

action challenging the ALJ’s August 21, 2004, decision. Dkt. No. 4.

III. JURISDICTION

The Court has jurisdiction to review a final decision made by the Commissioner. 42

U.S.C. § 405(g). “A final decision has two elements: (1) presentment of the claim to the

Commissioner, and (2) complete exhaustion of administrative remedies.” Kildare v. Saenz,

325 F.3d 1078, 1082 (9th Cir. 2003), quoting Johnson v. Shalala, 2 F.3d 918, 921 (9th

Cir.1993). The presentment element is jurisdictional and must be satisfied as a prerequisite to

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 The Ninth Circuit applies a three-part test for determining whether a judicial waiver of

§ 405(g)’s exhaustion requirement is warranted in a particular case. Johnson, 2 F.3d at 921. 

“The claim must be (1) collateral to a substantive claim of entitlement (collaterality), (2)

colorable in its showing that denial of relief will cause irreparable harm (irreparability), and (3)

one whose resolution would not serve the purposes of exhaustion (futility).” Kildare, 325 F.3d

at 1082 (internal quotations and citations omitted). As none of the three elements are present,

the Court concludes that a judicial waiver of the exhaustion requirement is not appropriate. 

REPORT AND RECOMMENDATION

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judicial review, whereas the exhaustion requirement may be waived by either the Court or the

Commissioner.1 Johnson, 2 F.3d at 921. The Court must dismiss for lack of subject matter

jurisdiction a case where the Commissioner has not made a final decision. See Bass v. Social

Security Admin., 872 F.2d 832, 833 (9th Cir. 1988) (per curiam). 

Here, the Commissioner asserts that plaintiff’s SSI application has not been fully

processed or adjudicated by SSA and, therefore, it has not rendered a final decision as to that

claim. Plaintiff agrees that his original SSI application was never fully processed by SSA and

that it was not heard by the ALJ. The Commissioner’s memorandum requesting remand

indicates “[t]he Commissioner has already taken action to remedy the situation and [p]laintiff’s

SSI claim is currently being processed in an expedited fashion.” Dkt. No. 22 at 7. The

Commissioner has not made a “final decision”on plaintiff’s SSI application, as contemplated by

42 U.S.C. § 405(g). As a result, this Court lacks subject matter-jurisdiction over plaintiff’s SSI

application and therefore, that claim must be dismissed. Bass, 872 F.2d at 833. However, it is

undisputed that the Commissioner did render a final decision regarding plaintiff’s application

for DIB, and the Court has jurisdiction to review the ALJ’s decision to deny plaintiff’s

application for DIB pursuant to 42 U.S.C. § 405(g)(2005). 

IV. STANDARD OF REVIEW

The Court may set aside the Commissioner’s denial of social security benefits when the

ALJ’s findings are based on legal error or not supported by substantial evidence in the record

as a whole. See 42 U.S.C. § 405(g); Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993);

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Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). Substantial evidence is defined as 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. Magallanes v. Bowen, 881 F.2d 747,

750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in

medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

Cir. 1995). Where the evidence is susceptible to more than one rational interpretation, it is the

Commissioner’s conclusion that must be upheld. Thomas v. Barnhart, 278 F.3d 947, 954 (9th

Cir. 2002) (internal citations omitted).

V. EVALUATING DISABILITY

As the claimant, Mr. Burkett bears the burden of proving that he is disabled within the

meaning of the Social Security Act. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999)

(internal citations omitted). Disability is defined as the “inability 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 twelve months[.]” 42 U.S.C. §§ 423 (d)(1)(A), 

1382c(a)(3)(A). A claimant is disabled only if his impairments are of such severity that he is

not able to do his previous work, and cannot, considering his age, education, and work

experience, engage in any other substantial gainful activity existing in the national economy. 

See 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see also Tackett v. Apfel, 180 F.3d 1094,

1098-99 (9th Cir. 1999). In addition, a claimant applying for DIB must show that he was

covered by the social security disability insurance program at the time of the injury’s onset or

occurrence. See 42 U.S.C. §§ 416(i)(3), 423(c)(1); 20 C.F.R. § 404.130(b). 

The Social Security Regulations set out a five-step sequential evaluation process for

determining whether a claimant is disabled within the meaning of the Social Security Act. See

20 C.F.R. §§ 404.1520, 416.920. At step one, the claimant must establish that he is not

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engaging in any substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the

claimant establishes that he has not engaged in any substantial gainful activity, the

Commissioner proceeds to step two. At step two, the claimant must establish that he has one

or more medically severe impairments, or combination of impairments, that limit his physical or

mental ability to do basic work activities. If the claimant does not have such impairments, he is

not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does have a severe

impairment, the Commissioner moves to step three to determine whether the impairment meets

or equals any of the listed impairments described in the regulations. 20 C.F.R. §§ 404.1520(d),

416.920(d). A claimant who meets or equals one of the listings for the required twelve-month

duration requirement is disabled. Id.

When the claimant’s impairment neither meets nor equals one of the impairments listed

in the regulations, the Commissioner must proceed to step four and evaluate the claimant’s

residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the

Commissioner evaluates the physical and mental demands of the claimant’s past relevant work

to determine whether the claimant can still perform that work. 20 C.F.R. §§ 404.1520(f),

416.920(f). If the claimant is not able to perform his past relevant work, the burden shifts to

the Commissioner at step five to show that the claimant can perform some other work that

exists in significant numbers in the national economy, taking into consideration the claimant’s

RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett,

180 F.3d at 1100. If the Commissioner finds the claimant is unable to perform other work,

then the claimant is found disabled, and benefits may be awarded. 

VI. DECISION BELOW

On August 21, 2004, the ALJ issued a decision finding:

1. The claimant meets the nondisability requirements for a period of

disability and Disability Insurance Benefits set forth in Section 216(i)

of the Social Security Act, but is insured for benefits only through

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December 31, 1998.

2. The claimant has not engaged in substantial gainful activity since the alleged

onset of disability.

3. The claimant’s obesity and sleep apnea are considered “severe” based on the

requirements in the Regulations 20 CFR § 404.152(c).

4. These medically determinable impairments do not meet or medically equal one

of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.

5. I find that the claimant’s allegations regarding his limitations are not totally

credible for the reasons set forth in the body of the decision.

6. On and before the date that his insured status expired, the claimant retained the

residual functional capacity to lift or carry 20 pounds occasionally and 10

pounds frequently. He could stand or walk for six hours in an eight hour

workday. The claimant could sit for six hours in an eight hour workday.

7. The claimant’s past relevant work as writer and public information officer do

not require the performance of work-related activities precluded by his residual

functional capacity (on and before the date that his insured status expired) as

they are generally performed in the national economy (20 CFR § 404.1565).

8. The claimant’s medically determinable obesity and sleep apnea did not prevent

him from performing his past relevant work on or before the date that his

insured status expired.

9. The claimant was not under a “disability” as defined in the Social Security Act,

on or before the date that his insured status expired on December 31, 1998 (20

CFR § 404.1520(f)).

AR at 35-36.

VII. ISSUE ON APPEAL

The issue on appeal is whether this case should be remanded with instructions to award

benefits, as urged by plaintiff, or remanded for further administrative proceedings, as urged by

the Commissioner. Plaintiff alleges numerous errors in the ALJ’s decision and requests that the

Court award him both DIB and SSI benefits. These errors are best summarized as: 1) the ALJ

committed reversible error by failing to accord proper deference to the uncontradicted opinions

of plaintiff’s treating physicians without explaining a specific and legitimate reason for doing

so; 2) the ALJ failed to develop the administrative record; and 3) the ALJ erred in finding that

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plaintiff’s subjective reporting of his symptoms and disabilities was not credible. Dkt. No. 16

at 9, 12, 14. The Commissioner concedes that there were irregularities in the processing of

plaintiff’s SSI application and agrees that further proceedings are necessary. Dkt. No. 22 at 6. 

However, the Commissioner also urges the Court to uphold the ALJ’s decision on the DIB

claim. Id. at 8. The Commissioner does not provide any substantive defense of the ALJ’s

decision in response to the deficiencies raised by plaintiff. Because the Court does not have

subject matter jurisdiction over plaintiff’s SSI claim, the only issue presented is whether

plaintiff’s DIB application should be remanded for an award of benefits or for further

administrative proceedings.

VIII. DISCUSSION

If the Court determines that the ALJ erred, it has discretion to remand for further

proceedings or to award benefits. See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). 

The Court may direct an award of benefits where “the record has been fully developed and

further administrative proceedings would serve no useful purpose.” McCartey v. Massanari,

298 F.3d 1072, 1076 (9th Cir. 2002). The Court may credit the evidence before it as true and

remand for an award of benefits when:

(1) the ALJ has failed to provide legally sufficient reasons for rejecting the

claimant’s evidence; (2) there are no outstanding issues that must be resolved

before a determination of disability can be made; and (3) it is clear from the

record that the ALJ would be required to find the claimant disabled if [s]he

considered the claimant’s evidence.

Id. at 1076-77. 

Because of the unusual procedural posture of this case and the minimal briefing that

was submitted to the Court on the substantive issues regarding the ALJ’s decision, this case

does not fit neatly within the analytic framework of McCartey. Nevertheless, for the reasons

explained below, the Court finds plaintiff’s DIB claim should be remanded for further

administrative proceedings. Concurrent evaluation of both applications will ensure a thorough,

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fair, and efficient determination is made on plaintiff’s claims.

A. It is Not Clear from the Record that the ALJ Improperly Rejected Plaintiff’s

Evidence Regarding his DIB Claim.

Plaintiff alleges that the ALJ committed multiple errors in evaluating or failing to

evaluate his evidence. First, plaintiff argues that the ALJ did not accord the proper degree of

deference to the opinions of his treating physicians, Dr. Mary Simonson and Dr. Michael

Welsh. Dkt. No. 16 at 12-13. Second, plaintiff argues that the ALJ failed to properly analyze

the credibility of his symptom-related testimony. Third, plaintiff claims that the ALJ did not

fulfill her duty to develop the record. The Commissioner argues that the ALJ’s decision was

based on substantial evidence in the record.

Regarding plaintiff’s first two arguments, there is ample evidence in the record that

the ALJ applied the proper standards in her evaluation of plaintiff’s evidence. She outlined

her analysis and provided explanations as to why she relied on certain evidence and why she

rejected other evidence as either unreliable or irrelevant. This is not to say that the Court

would have upheld the ALJ’s decision if that opportunity had been presented. Rather, the

Court merely concludes that the record in this case does not indicate that there was the kind of

inexplicable rejection of significant evidence that would mandate a direct award of benefits at

this time. 

The record does, however, demonstrate plaintiff’s well-founded concern that the

record was not adequately developed. The ALJ rejected one of Dr. Welsh’s conclusions

about plaintiff’s disability status in part because the assessment was not accompanied by an

explanation of how the determination was reached. AR 29. To the extent that the ALJ

rejected Dr. Welsh’s opinion because the basis of it was unknown, the ALJ should have

solicited clarification from the doctor. It is incumbent upon an ALJ to obtain additional

information from a doctor if the ALJ determines that she needs to know more about the

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doctor’s assessment in order to properly evaluate it. Smolen, 80 F.3d at 1288 (holding that,

where ALJ thought he needed to know the basis of doctor’s opinions in order to evaluate

them, ALJ had a duty to conduct an appropriate inquiry, for example, by subpoenaing the

physicians or submitting further questions to them).

B. There are Outstanding Issues that Must be Resolved Before a Disability

Determination of Disability Can be Made.

The second step for determining whether a case should be remanded for an immediate

award of benefits or for further administrative proceedings is to assess whether there are any

outstanding issues that must be resolved before a determination of disability can be made. 

McCartey, 298 F.3d at 1076. Given the posture of this case, the Court cannot conclude that

there are no outstanding issues. Plaintiff has alleged deficiencies in the ALJ’s decision and has

complained that the ALJ did not fully develop the record. Dkt. No. 16 at 8, 13. Plaintiff also

asserts that certain relevant medical records were improperly left out of the record. Id. at 9-10. 

It is apparent, therefore, that in spite of his desired outcome in this proceeding, plaintiff

concedes that there are outstanding issues to be resolved in this case and that further

development of the record is warranted

Additionally, it is clear from the record and the parties’ pleadings that there was

considerable confusion involved in processing plaintiff’s SSI claim. See, e.g., AR 499-500;

Dkt. Nos. 22 at 6-9, 16 at 16. This confusion may have affected the ALJ’s decision on

plaintiff’s DIB application. Because the Commissioner is currently processing plaintiff’s SSI

application, it is both logical and efficient to remand the DIB matter for further proceedings as

well. 

C. It is Not Clear From the Record that the ALJ Would be Required to Find

Plaintiff Disabled if She Considered All of Plaintiff’s Evidence.

The final step for determining whether a case should be remanded for an immediate

award of benefits or for further administrative proceedings requires the Court to assess

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whether the ALJ would be obligated to find the claimant disabled if she considered the

erroneously-rejected evidence. McCartey, 298 F.3d at 1076-77. This prong is closely related

to the second prong: if there are outstanding issues, it is unlikely that a clear finding of

disability would be required.

Plaintiff argues that the Court should find him disabled and award benefits based on the

evidence in the record. However, as discussed above, the record in this case was not fully

developed at the administrative level. Therefore, the Court cannot determine whether a finding

of disability will ultimately be required on remand. Plaintiff should be allowed to have his

claims fairly adjudicated after having had the opportunity to present evidence that may have

been previously unconsidered. Again, the ambiguity of the record at this time requires

remanding this matter for further administrative proceedings.

IX. CONCLUSION

For the reasons set forth above, the ALJ’s decision on plaintiff’s DIB application

should be reversed, and both the DIB and the SSI claims should be remanded for further

administrative proceedings not inconsistent with this report and recommendation. Plaintiff has

indicated that he wishes to conduct further discovery. Dkt. No. 26. This matter shall be

addressed by the ALJ on remand, as well as those arguments set forth by plaintiff in Section

VI of this report and recommendation. A proposed order accompanies this report and

recommendation.

DATED this 11th day of August, 2006.

AJAMES P. DONOHUE

United States Magistrate Judge 

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