Taylor v. Commissioner of Social Security

Filing 13

ORDER REVERSING AND REMANDING FOR IMMEDIATE AWARD OF BENEFITS signed by Hon. Brian A Tsuchida.(TF)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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HEATHER T.,

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Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,

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CASE NO. C24-5406-BAT
ORDER REVERSING AND
REMANDING FOR IMMEDIATE
AWARD OF BENEFITS

Defendant.

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Plaintiff Heather T. appeals the denial of her application for Supplemental Security

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Income and Disability Insurance Benefits, arguing that the ALJ erred by failing to comply with

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the law of the case doctrine and reassessing plaintiff’s fibromyalgia as directed by this Court’s

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previous order, and that the ALJ further erred in rejecting medical opinions and plaintiff’s

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testimony. Dkt. 9. She seeks remand for an immediate award of benefits or, in the alternative, for

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further administrative proceedings. Id. The Commissioner concedes that the ALJ committed

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harmful error but contends that a remand for further administrative proceedings is the

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appropriate remedy. Dkt. 11. The Court REVERSES the Commissioner’s final decision and

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REMANDS the matter under sentence four of 42 U.S.C. § 405(g)for an immediate calculation of

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an award of benefits.

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ORDER REVERSING AND REMANDING FOR IMMEDIATE AWARD
OF BENEFITS - 1

BACKGROUND

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Plaintiff is currently 50 years old, has at least a high school education, and has worked as

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a certified nursing assistant and home attendant. Tr. 1525-26. She applied for benefits on March

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29, 2017, alleging disability as of May 1, 2013; she later amended her alleged onset date to

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January 1, 2017. Tr. 381, 1566. In March 2019, the ALJ issued an unfavorable decision, which

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the Appeals Council reversed and remanded for further proceedings. Tr. 232-37. In April 2021,

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the ALJ issued a second unfavorable decision, which this Court reversed and remanded for

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further proceedings in a decision dated December 29, 2022. See Heather T. v. Comm’r of Soc.

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Sec., Case No. C22-5333-DWC, Dkt. 13 (W.D. Wash. Dec. 29, 2022). On March 20, 2024, the

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ALJ issued a third unfavorable decision. Tr. 1515-27. Plaintiff now seeks review of the third

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unfavorable decision.
THE ALJ’S DECISION

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Utilizing the five-step disability evaluation process, 1 the ALJ found that plaintiff had not

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engaged in substantial gainful activity since the alleged onset date; she had the following

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medically determinable severe impairments: degenerative disc disease, obesity, asthma,

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obstructive sleep apnea, depression, and history of substance abuse (alcohol and

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methamphetamine); and these impairments did not meet or equal the requirements of a listed

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impairment. Tr. 1518. The ALJ found that plaintiff had the residual functional capacity to

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perform light work with additional exertional and non-exertional limitations. Tr. 1520. The ALJ

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found that plaintiff could not perform her past relevant work, but as there are jobs that exist in

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significant numbers in the national economy that plaintiff could perform, she is not disabled. Tr.

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1525-27.

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20 C.F.R. §§ 404.1520, 416.920.

ORDER REVERSING AND REMANDING FOR IMMEDIATE AWARD
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DISCUSSION

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Plaintiff’s first argument centers on the ALJ’s error in assessing her fibromyalgia. Dkt. 9

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at 4. In its December 2022 decision, this Court concluded that in the second unfavorable

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decision, the ALJ improperly applied Social Security Ruling 12-2p and erred in finding that

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plaintiff’s fibromyalgia was not medically determinable. Heather T., Case No. C22-5333-DWC,

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Dkt. 13 at 7. The Court found that the medical evidence established that plaintiff met the first set

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of criteria in SSR 12-2p to establish fibromyalgia as a medically determinable severe

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impairment. Id. at 8. The Court directed the ALJ to reassess plaintiff’s fibromyalgia on remand.

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Id. at 12.

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On remand, the ALJ addressed plaintiff’s fibromyalgia at step two as follows: “The

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claimant’s alleged fibromyalgia (Ex. B9F, pg. 4; B15F) is not medically determinable; the record

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lacks adequate medical signs and laboratory findings demonstrating the existence of any such

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impairment. An allegation of symptoms alone is insufficient to establish a medically

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determinable impairment (SSR 16-3p).” Tr. 1518. The ALJ did not further address plaintiff’s

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fibromyalgia.

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Plaintiff argues that the ALJ erred by failing to follow the law of the case doctrine when

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she revisited an issue this Court previously decided and came to a different conclusion than this

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Court did. Dkt. 9 at 5.
The Commissioner concedes that the ALJ did not reevaluate plaintiff’s fibromyalgia as

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required by this Court’s order. Dkt. 11 at 1. However, the Commissioner argues that because the

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record leaves serious doubt about whether plaintiff is disabled, the Court should remand for

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further administrative proceedings and not for an immediate award of benefits as plaintiff seeks.

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Id.

ORDER REVERSING AND REMANDING FOR IMMEDIATE AWARD
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When a district court reverses an ALJ decision, it has discretion to either remand the case

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for further administrative proceedings or to remand for an award of benefits. 42 U.S.C. § 405(g);

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Harman v. Apfel, 211 F.3d 1172, 1177-78 (9th Cir. 2000). In the typical case, where there are

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outstanding issues that must be resolved and it is not clear from the record that an ALJ would be

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required to find a claimant disabled if all the evidence were properly evaluated, remand for

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further proceedings is appropriate. Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012).

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The Court may remand for an award of benefits where (1) the record has been fully

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developed and further administrative proceedings would serve no useful purpose, (2) the ALJ has

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failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or

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medical opinion, and (3) if the improperly discredited evidence were credited as true, the ALJ

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would be required to find the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995,

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1020 (9th Cir. 2014). Courts have flexibility in applying this rule, and may instead remand for

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further proceedings where the record as a whole “creates serious doubt that a claimant is, in fact,

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disabled.” Id. at 1021.

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The Commissioner does not dispute that the first three prongs are met. The

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Commissioner instead asserts that the record leaves serious doubt that plaintiff is disabled based

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on four medical opinions and prior administrative medical findings. Dkt. 1 at 2-3. First, the

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Commissioner points to the 2017 consultative examination conducted by David Dixon, Ph.D. Id.

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at 2. Dr. Dixon opined that plaintiff’s ability to reason was good, her ability to understand was

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average, her sustained concentration was good to fair, her persistence was good to fair, her

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ability to interact socially was affected by her animations, and she was able to adapt to new

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environmental conditions. Tr. 589. However, Dr. Dixon conducted a psychological examination

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and expressed opinions about plaintiff’s psychological functioning, not her physical limitations.

ORDER REVERSING AND REMANDING FOR IMMEDIATE AWARD
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This opinion does not cast doubt on plaintiff’s allegations of disability based on her physical

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impairments, including fibromyalgia.

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Next, the Commissioner points to the October 2018 opinion of plaintiff’s mental health

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provider, Walter Jordan, LMHC. Dkt. 11 at 2-3. As the Commissioner notes, Mr. Jordan opined

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that plaintiff had no problems with her memory unless it was a day when she was experiencing a

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lot of pain, she had no problems with her ability to concentrate and complete tasks unless she

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was distracted by physical pain, and she would be able to carry out short and simple instructions.

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Tr. 1118-19. However, the Commissioner failed to note numerous other limitations that Mr.

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Jordan opined, including limitations in staying on task throughout the workday, maintaining

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regular attendance, working in coordination with or proximity to others, and adapting to the

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demands or stress of the workplace. Tr. 1119-22. Mr. Jordan also opined that plaintiff’s pain and

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“fibro fog” exacerbated her mental limitations. Tr. 1122. Even if the Court considered only the

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portions of Mr. Jordan’s opinion the Commissioner highlights, Mr. Jordan’s opinion about

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plaintiff’s mental functioning does not cast doubt on her allegations of disability based on her

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physical impairments. And considering the opinion as a whole, Mr. Jordan’s observations about

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the effects of pain and “fibro fog” on plaintiff’s functioning support, rather than undermine, her

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claims.

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Third, the Commissioner points to the June 2017 examination of Peter Weir, M.D. Dkt.

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11 at 3. Dr. Weir opined that plaintiff could stand and walk for 4 hours in a workday, sit for 6

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hours in a workday, lift and carry 20 pounds occasionally and 10 pounds frequently, and could

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engage in postural activities occasionally. Tr. 595. However, although Dr. Weir noted plaintiff’s

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history of fibromyalgia, he found that plaintiff did not meet the diagnostic criteria for

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fibromyalgia at his examination. Tr. 594. Dr. Weir’s opinion is thus based on the same erroneous

ORDER REVERSING AND REMANDING FOR IMMEDIATE AWARD
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assessment of fibromyalgia that the Commissioner concedes requires reversal of the ALJ’s

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decision. And even if the Court considers the effect of Dr. Weir’s opinion despite this defect, a

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single opinion in a record that comprises over 2000 pages is insufficient to raise serious doubt

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about plaintiff’s claim of disability when considering the record as a whole.

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Finally, the Commissioner points to the December 2017 opinion of the state agency

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consultant. Dkt. 11 at 3. The consultant opined that plaintiff was able to lift and carry 25 pounds

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frequently and 50 pounds occasionally, and stand, walk, and sit for 6 hours in an 8-hour

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workday. Tr. 186. However, the ALJ found this opinion to be not persuasive, as plaintiff’s

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morbid obesity, pain complaints, and reduced lumbar range of motion supported greater

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limitations. Tr. 1525. The Court agrees with the ALJ that this opinion is not persuasive and finds

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that this opinion is an outlier in the opinions regarding plaintiff’s physical functioning and is not

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sufficient to cast serious doubt on plaintiff’s claim of disability when considering the record as a

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whole.

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The Commissioner concedes that the criteria for a remand for benefits are met in the case,

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but points to four medical opinions that he alleges create serious doubt about plaintiff’s claim of

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disability. However, these opinions do not address plaintiff’s physical impairments, include

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opinions that support her claim, are based on the same error the Commissioner concedes was

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reversible error on the part of the ALJ, or are an outlier in a record that comprises over 2000

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pages. The Court finds that, considering the record as a whole, these four opinions are

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insufficient to create serious doubt that plaintiff is disabled.

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Plaintiff first filed her claim in March 2017, over seven years ago. She has had three

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hearings before an ALJ, and received three unfavorable decisions, each of which included

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reversible error as determined by either the Appeals Council or this Court, or even as conceded

ORDER REVERSING AND REMANDING FOR IMMEDIATE AWARD
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by the Commissioner himself. Under these circumstances, allowing the Commissioner a fourth

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opportunity to try to meet his burden would create the very “heads we win; tails, let’s play again”

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disability benefits system the Ninth Circuit has repeatedly cautioned against. Benecke v.

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Barnhart, 379 F.3d 587, 595 (9th Cir. 2004); see also Vieira v. Saul, 2020 WL 2615009, at *11

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(N.D. Cal. May 21, 2020); Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004). The Court

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finds no basis to exercise its discretion to require yet another hearing in this case and concludes

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that remand for an immediate award of benefits is the appropriate remedy in this case.

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CONCLUSION

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For the foregoing reasons, the Commissioner’s decision is REVERSED and this case is

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REMANDED under sentence four of 42 U.S.C. § 405(g) for immediate calculation of an award

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of benefits beginning on the onset date of disability of January 1, 2017.

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DATED this 24th day of September, 2024.

A

BRIAN A. TSUCHIDA
United States Magistrate Judge

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