Cordova v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: April 4, 2025
• Docket: 2:24-cv-01560
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 FRANKIE J. C., 8 Plaintiff, CASE NO. C24-1560-BAT 9 v. ORDER REVERSING AND 10 REMANDING FOR FURTHER COMMISSIONER OF SOCIAL SECURITY, ADMINISTRATIVE PROCEEDINGS 11 Defendant. 12

13 The Commissioner concedes the ALJ failed to discuss plaintiff’s lymphedema at step two 14 or in determining his residual functional capacity (“RFC”), and did not discuss Listing 4.11 at 15 step three, as previously ordered by the Court. Dkt. 15, at 1. The parties disagree, however, about 16 whether this matter should be remanded for an award of benefits or for further administrative 17 proceedings. Dkt. 14, at 16–18; Dkt. 15, at 1–3; Dkt. 16, at 7–8. Although there is no reasonable 18 explanation for why the ALJ ignored the scope of remand in the Court’s 2023 Order, the Court 19 finds conflicts in the present record create unresolved questions or doubts about whether plaintiff 20 is disabled. The Court therefore REVERSES the Commissioner’s final decision and 21 REMANDS for further administrative proceedings before a new ALJ under sentence four of 42 22 U.S.C. § 405(g). 23 1 In a May 2023 Order, the Court reversed and remanded because a prior ALJ failed to 2 consider lymphedema as a severe, medically determinable impairment; failed to assess whether 3 lymphedema equaled Listing 4.11 (Chronic Venous Insufficiency); and failed to consider 4 plaintiff’s lymphedema in determining RFC. Tr. 867. In the consequent July 2024 decision,

5 although the ALJ noted the scope of the remand required addressing plaintiff’s lymphedema and 6 purported to comply with “all the directives of the federal court,” the ALJ did not evaluate 7 lymphedema as a severe, medically determinable impairment, did not assess whether 8 lymphedema equaled Listing 4.11, and did not consider lymphedema while assessing plaintiff’s 9 RFC. See Tr. 792, 795–804. It is for good reason plaintiff seeks a remand for an immediate 10 award of benefits: why should the ALJ be awarded a mulligan for purposefully violating the 11 scope of remand? Cf. Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (“The 12 Commissioner, having lost this appeal, should not have another opportunity to show that Moisa 13 is not credible any more than Moisa, had he lost, should have an opportunity for remand and 14 further proceedings to establish his credibility.”).

15 Under the Ninth Circuit’s credit-as-true standard, three elements must be satisfied in 16 order for a court to remand to an ALJ with instructions to calculate and award benefits: (1) the 17 record has been fully developed and further administrative proceedings would serve no useful 18 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, 19 whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence 20 were credited as true, the ALJ would be required to find the claimant disabled on remand. 21 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Plaintiff contends that he has 22 demonstrated, without contradiction from the ALJ’s decision or the Commissioner’s 23 argumentation, that plaintiff equals Listing 4.11, as well as that the ALJ improperly discounted 1 evidence of plaintiff’s need to use a cane, need to elevate his leg during work, and lymphedema 2 flare ups that would cause him to miss 3 days of work per month. See Dkts. 14, 16. 3 Plaintiff, however, has not overcome the first element of the credit-as-true rule regarding 4 the development of the record and the usefulness of further administrative proceedings because

5 “[w]here there is conflicting evidence, and not all essential factual issues have been resolved, a 6 remand for an award of benefits is inappropriate.” Treichler v. Commissioner of SSA, 775 F.3d 7 1090, 1101 (9th Cir. 2014). First, whether plaintiff’s lymphedema equals Listing 4.11 is a fact- 8 based inquiry involving the following elements: 9 4.11 Chronic venous insufficiency of a lower extremity with incompetency or obstruction of the deep venous system and one of 10 the following: 11 A. Extensive brawny edema (see 4.00G3) involving at least two- thirds of the leg between the ankle and knee or the distal one-third 12 of the lower extremity between the ankle and hip. 13 OR 14 B. Superficial varicosities, stasis dermatitis, and either recurrent ulceration or persistent ulceration that has not healed following at 15 least 3 months of prescribed treatment. 16 20 C.F.R. pt. 404, subpt. P, app. 1, § 4.11. Even presuming the 2019 determination that plaintiff 17 suffered from superficial venous reflux/valvular incompetence qualifies as chronic venous 18 insufficiency, Tr. 587, whether it meets the strict criteria for disability under Listing 4.11 19 depends on the severity and documented medical evidence of significant clinical complications 20 such as brawny edema or venous stasis ulcers not responsive to treatment. Plaintiff cannot 21 simply refer to instances in which plaintiff suffered from swelling in his right lower extremity to 22 establish equaling Listing 4.11, see, e.g., Tr. 1183, 1185, 1196, in light of other determinations 23 that plaintiff has no significant deep venous reflux/valvular incompetence, no evidence of deep 1 or superficial venous thrombosis, and no arterial insufficiency at rest, Tr. 585, 587, as well as of 2 numerous instances in which plaintiff showed no or mild swelling in his leg along with a full 3 range of motion and normal gait, see, e.g., Tr. 1188, 1274, 1454.1 Second, although the ALJ 4 harmfully erred by not evaluating lymphedema at step two and with respect to plaintiff’s RFC,

5 there is enough evidence to suggest plaintiff’s physical limitations from lymphedema might not 6 be as debilitating as alleged. See, e.g., Tr. 1415 (“Describe a typical day for you: Wake up at 5am 7 . . . workout for 1 hour, make breakfast for nephews, take kids to school, visit with daughter at 8 9am for 30 minutes, walk dog, take care of any business for the week . . . working on setting up 9 room for him and his daughter, pick up sister from work at 4pm, grocery shop, make dinner and 10 eat around 6 or 7 while watching a movie, in bed by 9 or 10pm” and “Pt reports wanting to set up 11 daughter with daycare before getting a job”) (bold typeface removed), 1449 (“Physical Activity: 12 Calisthenic exercises every day – 250[]push-ups, 150 squats, 150 crunches”). 13 Based upon the current record, and for the foregoing reasons, the Commissioner’s 14 decision is REVERSED, and this case is REMANDED for further administrative proceedings

15 before a new ALJ under sentence four of 42 U.S.C. § 405(g). 16 Because the ALJ who issued the July 2024 decision, herein, failed to follow the Court’s 17 2023 Order regarding the scope of remand, the Court directs the Commissioner to assign a 18 different ALJ to address this case on remand. 19 On remand, the new ALJ shall provide plaintiff an opportunity for a hearing; supplement 20 the record, if necessary, to evaluate the extent of plaintiff’s lymphedema and resulting right 21 lower extremity symptoms and limitations; comply with the Court’s 2023 order to consider 22

23 1 In a June 2023 lower extremity venous evaluation, plaintiff showed no deep or superficial venous thrombosis and no evidence of venous reflux. Tr. 1336. 1 plaintiff’s lymphedema as a severe, medically determinable impairment; evaluate whether 2 claimant’s impairments meet or equal the severity of a listed impairment, including Listing 4.11; 3 reevaluate the opinion evidence; reevaluate the plaintiff’s RFC; obtain supplemental evidence at 4 Step 5; and issue a new opinion.

5 DATED this 4th day of April, 2025. 6 A 7 BRIAN A. TSUCHIDA United States Magistrate Judge 8

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