Anthony v. O'Malley

Opinion

EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON Apr 11, 2024 SEAN F. MCAVOY, CLERK KELLI A.,1 No. 1:22-cv-03148-RHW Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION TO vs. GRANT PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL MOTION FOR SUMMARY SECURITY,2 JUDGMENT

Defendant. ECF Nos. 13, 21, 24 Before the Court is the Report and Recommendation issued by Magistrate Judge Alexander C. Ekstrom, ECF No. 24, recommending Plaintiff’s Motion for Summary Judgment, ECF No. 13, be granted and Defendant’s Motion for Summary Judgment, ECF No. 21, be denied. No objections were filed. After reviewing the Report and Recommendation, the Court finds the

1 To protect the privacy of plaintiffs in social security cases, the undersigned identifies them by only their first names and the initial of their last names. See LCivR 5.2(c). 2 Pursuant to Federal Rule of Civil Procedure 25(d), Martin O’Malley, Commissioner of Social Security, is substituted as the named Defendant. Magistrate Judge’s findings are correct. Therefore, the Court adopts the Report and Recommendation with the following comment. Though no objections were

filed, the Court has carefully considered whether further proceedings are necessary. Plaintiff’s application has been pending since 2017 and the erroneously rejected opinion of Dr. Birger, if credited as true, would compel a finding of

disability. Though this may not be one of those “rare” cases where remand for an award of benefits is warranted because courts do not reweigh the evidence on appeal, this does mark the second time this matter has been remanded for the same legal error. See Tr. 128-130 (prior Appeals Council remand for failure to

adequately evaluated the medical source evidence and failing to adequately evaluate Plaintiff’s past relevant work). If the ALJ errors a third time, and the record is fully developed, it is highly likely a reviewing Court will be inclined to

exercise its discretion to remand for an award of benefits, not for further proceedings once again. See Lopez v. Astrue, 497 F. App’x 717, 719 (9th Cir. 2012) (“Because this case has been remanded twice before, we see no point in giving the Commissioner a fourth opportunity to determine the claimant's

eligibility. We reverse and remand for an award of benefits.”). Accordingly, IT IS ORDERED: 1. The Report and Recommendation, ECF No. 24, is ADOPTED in its

entirety. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is GRANTED. The Commissioner’s decision is REVERSED and this matter is REMANDED for

further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 3. Defendant’s Motion for Summary Judgment, ECF No. 21, is DENIED. 4. Upon proper presentation, the Court will consider Plaintiff’s application

for fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412(d). 5. The District Court Executive shall update the docket sheet to reflect the substitution of Martin O’Malley as Defendant. The District Court Executive is directed to enter this Order, ENTER

JUDGMENT in favor of Plaintiff, forward copies to counsel and Magistrate Judge Ekstrom, and CLOSE THE FILE. DATED April 11, 2024.

s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge