Gomez v. Commissioner of Social Security
MEMORANDUM OPINION and ORDER: The Commissioner's determination that Plaintiff Gomez was not disabled is reversed and remanded for further proceedings consistent with this order: Judgment shall enter in favor of Plaintiff Gomez and against Defendant Commissioner: See text of Order for further details. Signed by Magistrate Judge CJ Williams on 02/29/16. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
JOHN Z. GOMEZ, JR.,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
OPINION AND ORDER
Plaintiff John Gomez, Jr. seeks judicial review of a final decision of the
Commissioner of Social Security (Commissioner) denying his application for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and
XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Gomez contends that the
administrative record (AR) does not contain substantial evidence to support the
Commissioner’s decision that he was not disabled during the relevant time period. For
the reasons that follow, the Commissioner’s decision will be reversed and remanded.
Gomez was born in 1949 and has completed the 8th grade. He has past worked
as a shot blaster, mechanic, security guard, warehouse worker, sandblaster and fiberglass
worker. AR 40-41, 43-45, 59, 99, 205, 208. Gomez filed an application for DIB and
SSI on April 28, 2009, alleging a disability onset date of June 10, 2008. AR 109-10,
111-13. He alleges disability due to headaches, depression and a tumor in the pituitary
gland. AR 33, 63.
Gomez’s claims were denied initially and on reconsideration. AR 63-71. He then
requested a hearing before an Administrative Law Judge (ALJ). ALJ Robert J. Labrum
conducted a hearing on February 24, 2010, at which Gomez and a vocational expert (VE)
testified. AR 29-52, 74. On March 5, 2010, the ALJ issued a decision denying Gomez’s
claim. AR 8-28. The Appeals Council denied his request for review on February 15,
2011. AR 1-5, 6-7. Prior to the Appeals Council’s decision, Gomez was found disabled
as of November 15, 2010. AR 473. Thus, this case addresses the period before that
date, beginning with the alleged onset date.
Gomez filed a complaint in this court on March 30, 2011, Docket No. C11-3011DEO, seeking review of the ALJ’s decision. On September 26, 2012, the Honorable
Donald E. O’Brien issued an order (Doc. No. 23 in No. C11-3011) remanding the case
to the Commissioner. See Gomez v. Astrue, No. 11-CV-3011-DEO, 2012 WL 4482154
(N.D. Iowa 2012) (Gomez I). On January 31, 2013, the Appeals Council vacated the
ALJ’s decision and returned the case to the ALJ for further proceedings consistent with
Judge O’Brien’s order. AR. 506-09. ALJ Eric S. Basse conducted a hearing on August
14, 2013, at which Gomez and a VE testified. AR 422-35. On September 12, 2013, the
ALJ issued a decision denying Gomez’s claim. AR 396-412.
On September 26, 2013, Gomez requested that the Appeals Council review the
second ALJ decision. AR 392-95. On October 22, 2014, the Appeals Council denied
the request for review, meaning that decision became the final administrative decision in
the case. AR 387-90, 396-412.
Gomez filed a complaint (Doc. 3) in this court on November 12, 2014, seeking
review of the decision. On January 5, 2015, with the consent of the parties (Doc. 7), the
Honorable Mark W. Bennett transferred this case to then-Magistrate Judge Leonard
Strand for final disposition and entry of judgment. The case was later re-assigned to me.
The parties have briefed the issues, and the matter is now fully submitted.
DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
A 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20
C.F.R. §§ 404.1505, 416.905. An individual has a disability when, due to his physical
or mental impairments, 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 significant numbers either in the region
where such individual lives or in several regions of the country.”
42 U.S.C. §§
423(d)(2)(A), 1382c(a)(3)(B). If the claimant is able to do work which exists in the
national economy but is unemployed because of inability to get work, lack of
opportunities in the local area, economic conditions, employer hiring practices or other
factors, the ALJ will still find the claimant not disabled. 20 C.F.R. §§ 404.1566(c)(1)(8), 416.966(c)(1)-(8).
To determine whether a claimant has a disability within the meaning of the Act,
the Commissioner follows the five-step sequential evaluation process outlined in the
regulations. Id. §§ 404.1520, 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir.
2007). First, the Commissioner will consider a claimant’s work activity. If the claimant
is engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. §§
404.1520(a)(4)(i), 416.920(a)(4)(i). “Substantial” work activity involves physical or
mental activities. “Gainful” activity is work done for pay or profit. 20 C.F.R. §§
Second, if the claimant is not engaged in substantial gainful activity, then the
Commissioner looks to the severity of the claimant’s physical and medical impairments.
If the impairments are not severe, then the claimant is not disabled. 20 C.F.R. §§
An impairment is not severe if “it does not
significantly limit your physical or mental ability to do basic work activities.” 20 C.F.R.
§ 404.1521(a); see also 20 C.F.R. §§ 404.1520(c), 416.920(c), 416.921(a); Kirby, 500
F.3d at 707.
The ability to do basic work activities is defined as having “the abilities and
aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These
abilities and aptitudes include (1) physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying or handling; (2) capacities for seeing, hearing
and speaking; (3) understanding, carrying out and remembering simple instructions; (4)
use of judgment; (5) responding appropriately to supervision, co-workers and usual work
situations; and (6) dealing with changes in a routine work setting. Id. §§ 404.1521(b)(1)(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
Third, if the claimant has a severe impairment, then the Commissioner will
determine its medical severity.
If the impairment meets or equals one of the
presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled regardless of age, education and work experience. 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v. Callahan,
133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) and the demands of his past relevant work.
If the claimant cannot do his past relevant work, then he is considered disabled. 20
C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). Past
relevant work is any work the claimant has done within the past 15 years of his application
that was substantial gainful activity and lasted long enough for the claimant to learn how
to do it. Id. § 416.960(b)(1). “RFC is a medical question defined wholly in terms of the
claimant’s physical ability to perform exertional tasks or, in other words, what the
claimant can still do despite his or her physical or mental limitations.” Lewis v. Barnhart,
353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks omitted); See 20 C.F.R. §§
404.1545(a)(1), 416.945(a)(1). The RFC is based on all relevant medical and other
evidence. Id. §§ 404.145(a)(3), 416.945(a)(3). The claimant is responsible for providing
the evidence the Commissioner will use to determine the RFC. Id. If a claimant retains
enough RFC to perform past relevant work, then the claimant is not disabled. Id. §§
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant
to perform past relevant work, then the burden shifts to the Commissioner to show there
is other work the claimant can do, given the claimant’s RFC, age, education and work
experience. Id. §§ 416.912(f), 416.920(a)(4)(v). The Commissioner must show not only
that the claimant’s RFC will allow him to make the adjustment to other work, but also
that other work exists in significant numbers in the national economy. Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make the adjustment, then the Commissioner will
find the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). At
step five, the Commissioner has the responsibility of developing the claimant’s complete
medical history before making a determination about the existence of a disability. Id. §§
404.145(a)(3), 416.945(a)(3). The burden of persuasion to prove disability remains on
the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
If after these five steps the ALJ has determined the claimant is disabled but there
is medical evidence of substance use disorders, the ALJ must decide if that substance use
is a contributing factor material to the determination of disability.
42 U.S.C. §§
423(d)(2)(C). The ALJ must then evaluate the extent of the claimant’s limitations without
the substance use. Id. If the limitations would not be disabling, then the disorder is a
contributing factor material to determining disability and the claimant is not disabled. 20
C.F.R. §§ 404.1535, 416.935.
THE ALJ’S FINDINGS
The ALJ made the following findings:
The claimant meets the insured status requirements of
the Social Security Act through December 13, 2013.
The claimant has not engaged in substantial gainful
activity since June 10, 2008, the alleged onset date (20
CFR 404.1571 et seq. and 416.971 et seq.).
The claimant has the following severe impairments:
depression; generalized anxiety disorder (GAD);
headaches; hypertension; obesity; and a history of
alcohol abuse (20 CFR 404.1520(c) and 416.920(c)).
The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526. 416.920(d),
416.925 and 416.926).
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity [sic] perform work at the medium
exertional level except that the claimant can make only
simple work-related judgments and decisions. He can
understand, remember, and carry out only short,
simple instructions. He can deal with only occasional
changes in a routine work setting. He can have only
occasional contact with the public, co-workers, or
The claimant is unable to perform any past relevant
work (20 CFR 404.1565 and 416.965).
The claimant was born on September 26, 1949, and
was 58 years old, which is defined as an individual of
advanced age, on the alleged disability onset date. The
claimant subsequently changed age category to closely
approaching retirement age (20 CFR 404.1563 and
The claimant has at least a high school education and
is able to communicate in English (20 CFR 404.1564
Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41 and
20 CFR Part 404, Subpart P, Appendix 2).
Considering the claimant’s age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR
404.1569 and 404.1569(a) 416.969, and 416.969(a)).
The claimant has not been under a disability, as defined
in the Social Security Act, from June 10, 2008, through
the date of this decision (20 CFR 404-1520(g) and
THE SUBSTANTIAL EVIDENCE STANDARD
The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . . .”). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept
as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The Eighth Circuit
explains the standard as “something less than the weight of the evidence and [that] allows
for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of
choice within which the [Commissioner] may decide to grant or deny benefits without
being subject to reversal on appeal.” Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir.
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence which supports the Commissioner’s decision and evidence that detracts
from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search
the record for evidence contradicting the [Commissioner’s] decision and give that
evidence appropriate weight when determining whether the overall evidence in support
is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (“[A]n administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion.”).
Gomez contends the ALJ’s decision is not supported by substantial evidence
because (1) the ALJ failed to follow this court’s prior order on remand and (2) the ALJ’s
mental RFC findings are not supported by substantial evidence. As I will explain below,
the first argument is dispositive.
The Law of the Case Doctrine
Gomez argues that the ALJ failed to develop the record by not following the
instructions given by Judge O’Brien on remand. Specifically, Gomez argues that the ALJ
failed to contact Daniel Arnold, D.O., or do anything else to clarify Dr. Arnold’s prior
findings. The Commissioner admits that the ALJ failed to contact Dr. Arnold but
contends that this failure was harmless, as Dr. Arnold would not have been able to clarify
findings made during an evaluation that took place in November of 2008.
The law of the case doctrine provides that “when a court decides upon a rule of
law, that decision should continue to govern the same issues in subsequent stages in the
same case.” U.S. v. Parker, 762 F.3d 801, 806 (8th Cir. 2014) (quoting Arizona v.
California, 460 U.S. 605, 618 (1983)). The purpose of the doctrine is to prevent the
relitigation of settled issues. First Union Nat. Bank v. Pictet Overseas Trust Corp., Ltd.,
477 F.3d 616, 620 (8th Cir. 2007) (quoting Little Earth of the United Tribes, Inc. v.
United States Dep’t of Hous. & Urban Dev., 807 F.2d 1433, 1441 (8th Cir. 1986)).
Among other things, the doctrine requires lower courts to follow remand orders and
“adhere to decisions made in earlier proceedings.” Vander Molen v. Astrue, 630 F.
Supp. 2d 1010, 1015 (S.D. Iowa 2009) (internal citations and quotations omitted).
The Eighth Circuit Court of Appeals has held that the law of the case doctrine
applies to administrative agencies on remand. Hulsey v. Astrue, 622 F.3d 917, 924 (8th
Cir. 2010) (citing Brachtel v. Apfel, 132 F.3d 417, 419 (8th Cir. 1997)). In Social
Security cases, the permissible scope of the ALJ’s decision after remand is guided by the
instructions from the Appeals Council. Meyerhoff v. Colvin, No. C12–3046–MWB, 2013
WL 3283696 at *17 (N.D. Iowa 2013).
A reviewing court may remand with or without limitations. United States v. Bates,
614 F.3d 490, 494 (8th Cir. 2010). “ALJ’s may not re-litigate issues already settled by
their remand orders.” Ischay v. Barnhart, 383 F. Supp. 2d 1199, 1215 (C.D. Cal. 2005).
When remand orders contain instructions concerning the scope of decision, issues to be
addressed, or other evidence to examine, “deviation from the court’s remand order in the
subsequent administrative proceedings is itself legal error, subject to reversal on further
judicial review.” Id. at 1214 (quoting Sullivan v. Hudson, 490 U.S. 877, 886 (1989)).
The law of the case doctrine protects the “settled expectations of the parties.” First
Union Nat. Bank, 477 F.3d at 620 (quoting Little Earth of the United Tribes, Inc., 807
F.2d at 1441). The doctrine applies to issues that were either explicitly decided or settled
by “necessary implication.” Meyerhoff, 2013 WL 283696, at *18. Factors to consider
in determining whether an issue was implicitly decided are: “(1) resolution of the issue
was a necessary step in resolving the earlier appeal; (2) resolution of the issue would
abrogate the prior decision and so must have been considered in the prior appeal; and (3)
the issue is so closely related to the earlier appeal its resolution involves no additional
consideration and so might have been resolved but unstated.” McIlravy v. Kerr–McGee
Coal Corp., 204 F.3d 1031 (10th Cir. 2000) (quoting Guidry v. Sheet Metal Workers
Intern. Ass’n, Local No. 9, 10 F.3d 700, 707 (10th Cir. 1993), modified on other grounds
sub nom. Guidry v. Sheet Metal Workers Nat. Pension Fund, 39 F.3d 1078 (10th Cir.
1994) (en banc)).
The law of the case doctrine does not apply to general remand orders or the issues
that formed the basis for remand. Williams v. Apfel, 65 F. Supp. 2d 1223, 1230 (N.D.
Okla. 1999). For example, when a court instructs the ALJ to simply “create a full and
proper record” there is no instruction to proceed upon a certain factual finding, so the
law of the case does not apply. Id. When subsequent proceedings follow a general
remand, the ALJ may properly decide “anything not foreclosed by the mandate.” See
Guidry, 10 F.3d at 706.
In Gomez I, Judge O’Brien stated as follows with regard to Dr. Arnold:
Dr. Arnold is a state agency consultant who saw Plaintiff in relation
to his physical, as opposed to mental, condition on November 11, 2008.
Significantly, Dr. Arnold’s opinion is the only opinion from an examining
source on record that specifically deals with Plaintiff’s physical capabilities.
The ALJ determined Dr. Arnold failed to provide functional limitations.
Tr. 16. However, Dr. Arnold indicated Plaintiff could lift and carry 40
pounds, could stand for 20 minutes, could sit for 30 minutes, and could
walk for 2 blocks. Though it is possible, as the Commissioner maintains,
that Dr. Arnold was merely reciting Plaintiff’s subjective allegations, this
is ultimately not clear on the record. When a record is unclear, an ALJ has
a duty to “fully and fairly develop” it prior to making a final decision.
Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000).
Gomez I, 2012 WL 4482154, at *10. Later, in concluding that remand was necessary,
Judge O’Brien stated:
[T]hough Dr. Arnold, the only examining source who considered Plaintiff’s
physical capacity on record, seemed to assign Plaintiff physical functional
limitations which the ALJ failed to account for in the RFC he assigned
Plaintiff, there is a legitimate question as to whether Dr. Arnold was merely
reciting Plaintiff’s subjective allegations, rather than making objective
medical findings; as such, the record needs to be developed further.
Id. at *11. Gomez argues that the ALJ failed to follow Judge O’Brien’s order on remand
by obtaining clarification from Dr. Arnold. The Commissioner agrees that the ALJ did
not re-contact Dr. Arnold but contends that doing so would have been futile. The
Commissioner argues that “the only way for the ALJ to obtain such clarification from
Dr. Arnold would have been to contact him with the hope that he would specifically
remember plaintiff and his one-time consultative examination almost five years later.”
(Doc. 12, at 10). The Commissioner asserts, therefore, that “there was no reasonable
expectation that Dr. Arnold would have been able to provide any insight into the contents
of his report.” (Id., at 11).
The Commissioner’s argument is not well-founded. Not only did the ALJ fail to
contact Dr. Arnold on remand, but he also relied on the same interpretation of Dr.
Arnold’s report that Judge O’Brien found to be ambiguous. In the initial decision, the
ALJ found that “Dr. Arnold did not provide functional limitations based upon his
examination.” AR 16. After remand, despite obtaining no additional information from
Dr. Arnold, the ALJ found: “Dr. Arnold did not provide functional limitations based
upon his examination. Dr. Arnold listed all the symptoms reported by the claimant
. . . .” AR 405. This is in direct conflict with Judge O’Brien’s prior finding that “there
is a legitimate question as to whether Dr. Arnold was merely reciting Plaintiff’s subjective
allegations, rather than making objective medical findings. . . .” Gomez I, 2012 WL
4482154, at *11.
The Commissioner also argues that Dr. Arnold was clearly documenting Gomez’s
description of his symptoms, not making objective medical findings. (Doc. 12, at 11).
This constitutes, however, an attempt by the Commissioner to relitigate Judge O’Brien’s
prior conclusion that Dr. Arnold’s report was unclear. The issue of the clarity of Dr.
Arnold’s report is settled in this case. “The law of the case doctrine prevents the
relitigation of a settled issue in a case and requires courts to adhere to decisions made in
earlier proceedings....” United States v. Bloate, 655 F.3d 750, 755 (8th Cir. 2011)
(quoting United States v. Bartsh, 69 F.3d 864, 866 (8th Cir. 1995)). Here, Judge O’Brien
ruled that Dr. Arnold’s findings are ambiguous and required further development of the
record. The ALJ was bound by this finding. See Brachtel v. Apfel, 132 F.3d 417, 420
(8th Cir. 1997) (an ALJ is bound by this district court’s finding on remand).
If the ALJ had gathered substantially different evidence after the remand, and
based the second decision on that new evidence, another remand could have been avoided.
“[T]he law-of-the-case doctrine does not preclude a different conclusion if the adjudicator
is presented with substantially different evidence.” Hulsey v. Astrue, 622 F.3d 917, 925
(8th Cir. 2010) (citations omitted). Here, the ALJ did not possess any information that
the previous ALJ did not have prior to remand. Based on the same information, the ALJ
again stated that Dr. Arnold did not provide functional limitations but, instead, simply
listed the limitations described by Gomez. No effort was made to comply with Judge
O’Brien’s order. The Commissioner admits this. Doc. 12 at 10-11.
The Commissioner also argues that Gomez prevented the development of the
record concerning his physical RFC. In support, the Commissioner notes that Gomez
missed two consultative examinations without offering any reason. AR 810. While this
is true, it is not new information because the missed appointments occurred long before
remand. The examinations at issue were scheduled in 2010, while Gomez’s request for
Appeals Council review of the first ALJ decision was pending. AR 1-5, 810. As noted
earlier, Gomez filed his prior action in this court on March 30, 2011, and Judge O’Brien
remanded the case on September 26, 2012. Thus, the missed appointments do not
constitute new information and, therefore, do not justify departure from the law of the
case doctrine. Hulsey, 622 F.3d at 925. If the Commissioner disagreed with Judge
O’Brien’s order, that order could have been appealed. Ignoring the order was not an
Judge O’Brien made a finding that the first ALJ’s physical RFC, which provided
that Gomez could do medium work, was not supported by substantial evidence. Gomez
I, 2012 WL 4482154, at *10-11. He remanded the case to cure this deficiency. Because
the deficiency was not cured, the second ALJ’s identical RFC remains unsupported by
virtue of the law of case doctrine. Brachtel, 132 F.3d at 420.
The final question is whether to remand this case – again – or to order the
immediate award of benefits. A court may “enter an immediate finding of disability only
if the record ‘overwhelmingly supports’ such a finding.” Papesh v. Colvin, 786 F.3d
1126, 1135 (8th Cir. 2015) (quoting Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir.
2000). Given that Gomez’s claim has already been pending for almost seven years,
finality would be welcome. However, the record does not “overwhelmingly support” a
finding of disability. As such, remand is the only option. Because I conclude that remand
is necessary under the law of the case, there is no need to address Gomez’s remaining
For the reasons set forth herein, the Commissioner’s determination that Gomez
was not disabled is reversed and remanded for further proceedings consistent with this
order. Judgment shall enter in favor of Gomez and against the Commissioner.
On remand, the ALJ is directed to comply fully with Judge O’Brien’s prior remand
IT IS SO ORDERED this 29th day of February, 2016.
United States Magistrate Judge
Northern District of Iowa
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