1 WO 2 3 4 5
9 Megan Marie Clark, No. CV-19-08128-PCT-DWL
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14
15 This is an unusual Social Security appeal. Because the disputed issues are legal 16 (and procedural) rather than factual in nature, it is unnecessary to summarize the 17 background details in extensive detail. For the reasons that follow, the Court will reverse 18 and remand for an award of benefits. 19 BACKGROUND 20 Plaintiff Megan Clark, a high school graduate with more than four years of college 21 education, started working in the healthcare field in January 2008, ultimately rising to the 22 position of licensed nurse. (R. at 280-82.) In July 2014, Clark underwent a “suboccipital 23 craniectomy . . . for Chiari decompression” after experiencing headaches, balance 24 problems, and neck pain. (R. 639)1 In March 2015, after these symptoms failed to subside, 25 Clark stopped working. (R. 281.) Clark subsequently had two more surgeries. The first, 26 1 “A suboccipital craniectomy is the surgical removal of a portion of the skull below 27 the occipital lobe of the brain.” Wilkinson v. Comm’r of Social Sec., 2008 WL 344529, *4 n.4 (M.D. Fla. 2008). 28 1 in May 2015, was on her spine (R. 642-43) and the second, in July 2015, was a 2 “[r]eexploration of prior suboccipital craniectomy” (R. 795-98). Clark then returned to 3 work in June 2016. (R. 18.) 4 Clark now seeks Social Security disability benefits for the “closed” 15-month period 5 between March 2015 and June 2016 during which she wasn’t working full-time. During 6 the ALJ proceeding, Clark presented opinion evidence from two of her treating physicians 7 in support of this claim. The first, Dr. Mary Janikowski, opined that, during the period in 8 question, Clark suffered “[c]onstantly” from pain and other symptoms that were “severe 9 enough to interfere with attention and concentration needed to perform even simple work 10 tasks.” (R. 1076.) The second, Dr. Maame Dankwah-Quansah, opined that, during the 11 period in question, Clark would be off-task more than 30% of the time due to her physical 12 and mental limitations. (R. 1479.) Finally, Clark testified during the hearing that she had 13 stopped working in March 2015 due to “weakness, vertigo . . . migraines, vomiting, loss of 14 balance, slurred speech, [and] tons of pain” (R. 39); that her migraines remained 15 “miserable” and she would “throw up daily” after the first craniectomy (R. 44-45); that she 16 first began “noticing an appreciable change in [her] head and neck pain” in February 2016, 17 following her second craniectomy (R. 47); and that she resumed working on a part-time 18 basis at that point, even though she was “[n]ot totally improved, but certainly better.” (R. 19 52-53.) 20 The ALJ rejected Clark’s disability claim despite this evidence. (R. at 15-24.) 21 Notably, the ALJ didn’t acknowledge Dr. Janikowski’s opinion, much less explain why it 22 was being rejected. As for Dr. Dankwah-Quansah’s opinion, the ALJ assigned it “little 23 weight” and identified several different reasons for this assessment. (R. at 21-22.) The 24 ALJ instead chose to assign “substantial weight” to the opinion of a consultative examiner. 25 (R. 21.) Finally, as for Clark’s symptom testimony, the ALJ concluded it was “not fully 26 supported” by “the medical evidence of record.” (R. 20.) 27 … 28 … 2 Clark’s opening brief (Doc. 22) raises four arguments. First, Clark argues, in 3 extensive detail, why the ALJ’s rejection of Dr. Dankwah-Quansah’s opinion should be 4 deemed erroneous (id. at 15-20) and why the ALJ’s decision to credit the conflicting 5 opinion of the consultative examiner should be deemed erroneous (id. at 20-22). Second, 6 Clark argues, again in extensive detail, why the ALJ’s rejection of her symptom testimony 7 should be deemed erroneous. (Id. at 22-27.) Third, Clark argues that the ALJ’s failure to 8 address Dr. Janikowski’s opinion was erroneous. (Id. at 27-28.) Fourth, Clark argues that, 9 in light of these errors, the Court should not simply remand for further proceedings but 10 should apply the “credit as true” rule and remand for an award of benefits. (Id. at 28-29.) 11 Following receipt of Clark’s opening brief, the Commissioner did not file an 12 answering brief, as required by this Court’s local rules and the scheduling order in this 13 case.2 Instead, the Commissioner filed a document entitled “Defendant’s Motion To 14 Remand Pursuant To Sentence Four of 42 U.S.C. § 405(g); Memorandum In Support of 15 Defendant’s Motion For Remand.” (Doc. 23.) In this document, the Commissioner 16 “concedes that the ALJ erred by not evaluating medical opinion evidence from [Dr.] 17 Janikowski” and further concedes that the ALJ’s decision cannot stand in light of this error. 18 (Id. at 3.) The Commissioner does not, however, respond in any detail to Clark’s arguments 19 concerning the ALJ’s alleged other errors (i.e., the alleged errors in rejecting Dr. Dankwah- 20 Quansah’s opinion, in rejecting her symptom testimony, and in accepting the consultative 21 examiner’s opinion). Instead, after noting that, “[a]s a matter of record, the Commissioner 22 disagrees with the credit-as-true rule” (id. at 4), the Commissioner proceeds to identify 23 various reasons why, in general, a remand for further administrative proceedings is the 24 correct remedy when there is conflicting evidence in the record. 25 The Commissioner’s litigation strategy in this matter is unfortunate. Clark spent 26
27 2 After Clark objected (Doc. 26), the Court issued an order agreeing with Clark that the Commissioner’s “approach violates LRCiv 16.1(a) . . . [and] the Court’s scheduling 28 order.” (Doc. 27 at 4.) Rather than strike the Commissioner’s filing, the Court construed it as an answering brief and afford Clark an opportunity to file a reply. (Id. at 5.) 1 significant time and resources drafting an opening brief that, in her view, establishes not 2 only that the ALJ committed multiple errors but that the only appropriate remedy for those 3 errors is a remand for an award of benefits. The Commissioner, in contrast, has not even 4 attempted to explain why all of Clark’s assignments of error are misplaced. 5 Given this backdrop, a remand for an award of benefits is the only appropriate 6 outcome. Clark has raised significant challenges to the rejection of Dr. Dankwah- 7 Quansah’s opinion, the rejection of her testimony, and the acceptance of the consultative 8 examiner’s opinion, and the Commissioner has forfeited any ability to defend the ALJ’s 9 determinations on those issues by failing to address them. Cf. Cincinnati Ins. Co. v. 10 Eastern Atl. Ins. Co., 260 F.3d 742, 747 (7th Cir. 2001) (“Cincinnati’s argument . . . is not 11 frivolous or nondispositive, and from Integrity’s failure to mention it we infer that Integrity 12 acquiesces . . . in Cincinnati’s interpretation . . . . That acquiescence operates as a waiver 13 . . . .”); Trejo v. Mukasey, 2009 WL 10707323, *5 (D. Ariz. 2009) (“Plaintiff’s failure to 14 address the argument indicates her acquiescence to the claims’ dismissal.”) (citing Ariz. 15 LRCiv 7.2). Thus, although it is true that “[o]nly in rare circumstances . . . should the court 16 remand for an award of benefits” in a Social Security case, Sharp v. Comm’r of SSA, 2019 17 WL 1359127, *1 (D. Ariz. 2019), this is one of those rare cases.
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1 WO 2 3 4 5
9 Megan Marie Clark, No. CV-19-08128-PCT-DWL
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14
15 This is an unusual Social Security appeal. Because the disputed issues are legal 16 (and procedural) rather than factual in nature, it is unnecessary to summarize the 17 background details in extensive detail. For the reasons that follow, the Court will reverse 18 and remand for an award of benefits. 19 BACKGROUND 20 Plaintiff Megan Clark, a high school graduate with more than four years of college 21 education, started working in the healthcare field in January 2008, ultimately rising to the 22 position of licensed nurse. (R. at 280-82.) In July 2014, Clark underwent a “suboccipital 23 craniectomy . . . for Chiari decompression” after experiencing headaches, balance 24 problems, and neck pain. (R. 639)1 In March 2015, after these symptoms failed to subside, 25 Clark stopped working. (R. 281.) Clark subsequently had two more surgeries. The first, 26 1 “A suboccipital craniectomy is the surgical removal of a portion of the skull below 27 the occipital lobe of the brain.” Wilkinson v. Comm’r of Social Sec., 2008 WL 344529, *4 n.4 (M.D. Fla. 2008). 28 1 in May 2015, was on her spine (R. 642-43) and the second, in July 2015, was a 2 “[r]eexploration of prior suboccipital craniectomy” (R. 795-98). Clark then returned to 3 work in June 2016. (R. 18.) 4 Clark now seeks Social Security disability benefits for the “closed” 15-month period 5 between March 2015 and June 2016 during which she wasn’t working full-time. During 6 the ALJ proceeding, Clark presented opinion evidence from two of her treating physicians 7 in support of this claim. The first, Dr. Mary Janikowski, opined that, during the period in 8 question, Clark suffered “[c]onstantly” from pain and other symptoms that were “severe 9 enough to interfere with attention and concentration needed to perform even simple work 10 tasks.” (R. 1076.) The second, Dr. Maame Dankwah-Quansah, opined that, during the 11 period in question, Clark would be off-task more than 30% of the time due to her physical 12 and mental limitations. (R. 1479.) Finally, Clark testified during the hearing that she had 13 stopped working in March 2015 due to “weakness, vertigo . . . migraines, vomiting, loss of 14 balance, slurred speech, [and] tons of pain” (R. 39); that her migraines remained 15 “miserable” and she would “throw up daily” after the first craniectomy (R. 44-45); that she 16 first began “noticing an appreciable change in [her] head and neck pain” in February 2016, 17 following her second craniectomy (R. 47); and that she resumed working on a part-time 18 basis at that point, even though she was “[n]ot totally improved, but certainly better.” (R. 19 52-53.) 20 The ALJ rejected Clark’s disability claim despite this evidence. (R. at 15-24.) 21 Notably, the ALJ didn’t acknowledge Dr. Janikowski’s opinion, much less explain why it 22 was being rejected. As for Dr. Dankwah-Quansah’s opinion, the ALJ assigned it “little 23 weight” and identified several different reasons for this assessment. (R. at 21-22.) The 24 ALJ instead chose to assign “substantial weight” to the opinion of a consultative examiner. 25 (R. 21.) Finally, as for Clark’s symptom testimony, the ALJ concluded it was “not fully 26 supported” by “the medical evidence of record.” (R. 20.) 27 … 28 … 2 Clark’s opening brief (Doc. 22) raises four arguments. First, Clark argues, in 3 extensive detail, why the ALJ’s rejection of Dr. Dankwah-Quansah’s opinion should be 4 deemed erroneous (id. at 15-20) and why the ALJ’s decision to credit the conflicting 5 opinion of the consultative examiner should be deemed erroneous (id. at 20-22). Second, 6 Clark argues, again in extensive detail, why the ALJ’s rejection of her symptom testimony 7 should be deemed erroneous. (Id. at 22-27.) Third, Clark argues that the ALJ’s failure to 8 address Dr. Janikowski’s opinion was erroneous. (Id. at 27-28.) Fourth, Clark argues that, 9 in light of these errors, the Court should not simply remand for further proceedings but 10 should apply the “credit as true” rule and remand for an award of benefits. (Id. at 28-29.) 11 Following receipt of Clark’s opening brief, the Commissioner did not file an 12 answering brief, as required by this Court’s local rules and the scheduling order in this 13 case.2 Instead, the Commissioner filed a document entitled “Defendant’s Motion To 14 Remand Pursuant To Sentence Four of 42 U.S.C. § 405(g); Memorandum In Support of 15 Defendant’s Motion For Remand.” (Doc. 23.) In this document, the Commissioner 16 “concedes that the ALJ erred by not evaluating medical opinion evidence from [Dr.] 17 Janikowski” and further concedes that the ALJ’s decision cannot stand in light of this error. 18 (Id. at 3.) The Commissioner does not, however, respond in any detail to Clark’s arguments 19 concerning the ALJ’s alleged other errors (i.e., the alleged errors in rejecting Dr. Dankwah- 20 Quansah’s opinion, in rejecting her symptom testimony, and in accepting the consultative 21 examiner’s opinion). Instead, after noting that, “[a]s a matter of record, the Commissioner 22 disagrees with the credit-as-true rule” (id. at 4), the Commissioner proceeds to identify 23 various reasons why, in general, a remand for further administrative proceedings is the 24 correct remedy when there is conflicting evidence in the record. 25 The Commissioner’s litigation strategy in this matter is unfortunate. Clark spent 26
27 2 After Clark objected (Doc. 26), the Court issued an order agreeing with Clark that the Commissioner’s “approach violates LRCiv 16.1(a) . . . [and] the Court’s scheduling 28 order.” (Doc. 27 at 4.) Rather than strike the Commissioner’s filing, the Court construed it as an answering brief and afford Clark an opportunity to file a reply. (Id. at 5.) 1 significant time and resources drafting an opening brief that, in her view, establishes not 2 only that the ALJ committed multiple errors but that the only appropriate remedy for those 3 errors is a remand for an award of benefits. The Commissioner, in contrast, has not even 4 attempted to explain why all of Clark’s assignments of error are misplaced. 5 Given this backdrop, a remand for an award of benefits is the only appropriate 6 outcome. Clark has raised significant challenges to the rejection of Dr. Dankwah- 7 Quansah’s opinion, the rejection of her testimony, and the acceptance of the consultative 8 examiner’s opinion, and the Commissioner has forfeited any ability to defend the ALJ’s 9 determinations on those issues by failing to address them. Cf. Cincinnati Ins. Co. v. 10 Eastern Atl. Ins. Co., 260 F.3d 742, 747 (7th Cir. 2001) (“Cincinnati’s argument . . . is not 11 frivolous or nondispositive, and from Integrity’s failure to mention it we infer that Integrity 12 acquiesces . . . in Cincinnati’s interpretation . . . . That acquiescence operates as a waiver 13 . . . .”); Trejo v. Mukasey, 2009 WL 10707323, *5 (D. Ariz. 2009) (“Plaintiff’s failure to 14 address the argument indicates her acquiescence to the claims’ dismissal.”) (citing Ariz. 15 LRCiv 7.2). Thus, although it is true that “[o]nly in rare circumstances . . . should the court 16 remand for an award of benefits” in a Social Security case, Sharp v. Comm’r of SSA, 2019 17 WL 1359127, *1 (D. Ariz. 2019), this is one of those rare cases. The Commissioner 18 essentially concedes that the ALJ erred by rejecting the opinions of both of Clark’s treating 19 physicians (whose opinions, if accepted, would establish disability), that the ALJ also erred 20 by rejecting Clark’s symptom testimony (which, if accepted, would establish disability), 21 and that the ALJ also erred by accepting the opinion of the consultative examiner (which 22 provided the foundation for the ALJ’s non-disability determination). As a result, there is 23 little else to develop on remand. Nor does the Court have “serious doubt” about whether 24 Clark was disabled during the 15-month period in question. Garrison v. Colvin, 759 F.3d 25 995, 1021 (9th Cir. 2014) (“[C]ourts [must] remand for further proceedings when, even 26 though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as 27 a whole creates serious doubt that a claimant is, in fact, disabled.”). 28 1 IT IS THEREFORE ORDERED reversing the March 14, 2018 decision of the 2|| Administrative Law Judge (R. at 12-33), as upheld by the Appeals Council (R. at 1-6). 3 IT IS FURTHER ORDERED remanding this case to the Social Security Administration for an award of benefits. 5 IT IS FURTHER ORDERED directing the Clerk to enter final judgment □□ consistent with this Order and close this case. 7 Dated this 5th day of August, 2020. 8 9 =) 10 f t _o——— Dominic W. Lanza 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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