1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Sep 17, 2021
3 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 4 MICHELE D., No. 1:20-cv-03145-SMJ 5 Plaintiff, 6 ORDER REMANDING CASE v. 7 KILOLO KIJAKAZI, Acting 8 Commissioner of Social Security Administration, 9 Defendant. 10
11 Before the Court, without oral argument, are Plaintiff’s Motion for Summary 12 Judgment, ECF No. 23, and Defendant’s Motion to Remand, ECF No. 25. The 13 parties agree that the ALJ erred by improperly evaluating the medical opinion 14 evidence, improperly rejecting Plaintiff’s opinion evidence, and improperly 15 rejecting lay witness testimony. See ECF No. 23 at 2; ECF No. 25 at 3. But they 16 disagree about the appropriate remedy. Compare ECF No. 26 with ECF No. 28. 17 Plaintiff asks this Court to either remand for an award of benefits or with 18 instructions for a de novo hearing, ECF No. 26 at 2, while Defendant asks the Court 19 to remand without the mandatory instruction of either a de novo hearing or award 20 of benefits, ECF No. 28 at 4. Having reviewed the motions and the file in this matter, 1 the Court is fully informed and remands this matter under Defendant’s requested 2 conditions. The Court thus reverses and remands the matter for further
3 administrative proceedings before an Administrative Law Judge (ALJ) and a new 4 decision regarding Plaintiff’s applications for benefits under the Social Security 5 Act.
6 PROCEDURAL HISTORY1 7 Plaintiff filed for disability in 2013. AR 171. In 2015, an ALJ issued an 8 unfavorable decision. AR 16. Plaintiff appealed, and this Court remanded for 9 additional proceedings. AR 472. In 2020, the ALJ once again denied her claim, and
10 Plaintiff again appealed. AR 386–99; ECF No. 1. 11 LEGAL STANDARD 12 A. Remand for Benefits
13 “The decision whether to remand a case for additional evidence, or simply to 14 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 15 1226, 1232 (9th Cir. 1987). It is proper to remand for an immediate award of 16 benefits only when: “(1) the record has been fully developed and further
17 administrative proceedings would serve no useful purpose; (2) the ALJ has failed 18
19 1 The facts of the case are set forth in the administrative record and the parties’ briefs. See, e.g., ECF No. 23 at 4–8. The parties have discussed any additional 20 relevant facts in their briefing. See generally ECF Nos. 23, 25, 27 & 28. The Court thus provides only a short procedural summary here. 1 to provide legally sufficient reasons for rejecting evidence, whether claimant 2 testimony or medical opinion; and (3) if the improperly discredited evidence were
3 credited as true, the ALJ would be required to find the claimant disabled on 4 remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). The Ninth Circuit 5 has “stated or implied that it would be an abuse of discretion for a district court not
6 to remand for an award of benefits” when these three conditions are met. Id. But 7 “[i]n rare instances, though each of the credit-as-true factors is met, the record as a 8 whole leaves serious doubt as to whether the claimant is actually disabled.” Trevizo 9 v. Berryhill, 871 F.3d 664, 683 n.11 (9th Cir. 2017).
10 In other words, a remand for award of benefits is appropriate only if the 11 record, taken as a whole, leaves “not the slightest uncertainty as to the outcome.” 12 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014).
13 B. De Novo Hearing 14 The Social Security Act (“the Act”) requires that the “Commissioner shall 15 give such applicant and such other individual reasonable notice and opportunity for 16 a hearing.” 42 U.S.C. § 405(b)(1). However, the Act does not require that a claimant
17 receive a new hearing on remand. See 42 U.S.C. § 405(g) (“The court shall have 18 power to enter . . . a judgment . . . with or without remanding the cause for a 19 rehearing.”). Nor do the regulations require that an ALJ hold a new hearing in every
20 remand: 1 The Appeals Council may remand a case to an administrative law judge so that he or she may hold a hearing and issue a decision or a 2 recommended decision. The Appeals Council may also remand a case in which addiction evidence is needed or additional action by the 3 administrative law judge is required.
4 20 C.F.R. § 404.977(a) (emphasis added); see also 20 C.F.R. § 404.983(e) (the 5 procedures outlined in Section 404.977 apply to cases remanded by federal courts). 6 Where a de novo hearing would not provide helpful insight on remand, one is not 7 required. 8 DISABILITY DETERMINATION 9 A “disability” is defined, for the purposes of receiving social security 10 benefits, as the “inability to engage in any substantial gainful activity by reason of 11 any medically determinable physical or mental impairment which can be expected 12 to result in death or which has lasted or can be expected to last for a continuous
13 period of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 14 The ALJ uses a five-step sequential evaluation process to determine whether a 15 claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520, 416.920. 16 At step one, the ALJ considers the claimant’s work activity, if any. 20 C.F.R.
17 §§ 404.1520(a)(4)(i),(b), 416.920(a)(4)(i),(b). If the claimant is doing any 18 substantial gainful activity, the ALJ will find the claimant not disabled and deny 19 their claim. Id. If the claimant is not doing any substantial gainful activity, the
20 evaluation proceeds to step two. 1 At step two, the ALJ considers the medical severity of the claimant’s 2 impairment(s). 20 C.F.R. §§ 404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c). If they
3 do not have a severe medically determinable physical or mental impairment that 4 meets the twelve-month duration requirement in Section 404.1509, or a 5 combination of impairments that is severe and meets the duration requirement, the
6 ALJ will find the claimant not disabled and deny their claim. Id. If the claimant 7 does have a severe physical or mental impairment, the evaluation proceeds to step 8 three. 9 At step three, the ALJ also considers the medical severity of the claimant’s
10 impairment(s). 20 C.F.R. §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d). If they 11 have an impairment(s) that meets or equals one of the Social Security 12 Administration’s listings in appendix 1 of this subpart and meets the duration
13 requirement, the ALJ will find the claimant disabled. Id.; 404 Subpt. P App. 1. If 14 their impairment(s) does not meet or equal a listed impairment, the evaluation 15 proceeds to step four. 16 At step four, the ALJ considers the claimant’s residual functional capacity
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1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Sep 17, 2021
3 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 4 MICHELE D., No. 1:20-cv-03145-SMJ 5 Plaintiff, 6 ORDER REMANDING CASE v. 7 KILOLO KIJAKAZI, Acting 8 Commissioner of Social Security Administration, 9 Defendant. 10
11 Before the Court, without oral argument, are Plaintiff’s Motion for Summary 12 Judgment, ECF No. 23, and Defendant’s Motion to Remand, ECF No. 25. The 13 parties agree that the ALJ erred by improperly evaluating the medical opinion 14 evidence, improperly rejecting Plaintiff’s opinion evidence, and improperly 15 rejecting lay witness testimony. See ECF No. 23 at 2; ECF No. 25 at 3. But they 16 disagree about the appropriate remedy. Compare ECF No. 26 with ECF No. 28. 17 Plaintiff asks this Court to either remand for an award of benefits or with 18 instructions for a de novo hearing, ECF No. 26 at 2, while Defendant asks the Court 19 to remand without the mandatory instruction of either a de novo hearing or award 20 of benefits, ECF No. 28 at 4. Having reviewed the motions and the file in this matter, 1 the Court is fully informed and remands this matter under Defendant’s requested 2 conditions. The Court thus reverses and remands the matter for further
3 administrative proceedings before an Administrative Law Judge (ALJ) and a new 4 decision regarding Plaintiff’s applications for benefits under the Social Security 5 Act.
6 PROCEDURAL HISTORY1 7 Plaintiff filed for disability in 2013. AR 171. In 2015, an ALJ issued an 8 unfavorable decision. AR 16. Plaintiff appealed, and this Court remanded for 9 additional proceedings. AR 472. In 2020, the ALJ once again denied her claim, and
10 Plaintiff again appealed. AR 386–99; ECF No. 1. 11 LEGAL STANDARD 12 A. Remand for Benefits
13 “The decision whether to remand a case for additional evidence, or simply to 14 award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 15 1226, 1232 (9th Cir. 1987). It is proper to remand for an immediate award of 16 benefits only when: “(1) the record has been fully developed and further
17 administrative proceedings would serve no useful purpose; (2) the ALJ has failed 18
19 1 The facts of the case are set forth in the administrative record and the parties’ briefs. See, e.g., ECF No. 23 at 4–8. The parties have discussed any additional 20 relevant facts in their briefing. See generally ECF Nos. 23, 25, 27 & 28. The Court thus provides only a short procedural summary here. 1 to provide legally sufficient reasons for rejecting evidence, whether claimant 2 testimony or medical opinion; and (3) if the improperly discredited evidence were
3 credited as true, the ALJ would be required to find the claimant disabled on 4 remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). The Ninth Circuit 5 has “stated or implied that it would be an abuse of discretion for a district court not
6 to remand for an award of benefits” when these three conditions are met. Id. But 7 “[i]n rare instances, though each of the credit-as-true factors is met, the record as a 8 whole leaves serious doubt as to whether the claimant is actually disabled.” Trevizo 9 v. Berryhill, 871 F.3d 664, 683 n.11 (9th Cir. 2017).
10 In other words, a remand for award of benefits is appropriate only if the 11 record, taken as a whole, leaves “not the slightest uncertainty as to the outcome.” 12 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014).
13 B. De Novo Hearing 14 The Social Security Act (“the Act”) requires that the “Commissioner shall 15 give such applicant and such other individual reasonable notice and opportunity for 16 a hearing.” 42 U.S.C. § 405(b)(1). However, the Act does not require that a claimant
17 receive a new hearing on remand. See 42 U.S.C. § 405(g) (“The court shall have 18 power to enter . . . a judgment . . . with or without remanding the cause for a 19 rehearing.”). Nor do the regulations require that an ALJ hold a new hearing in every
20 remand: 1 The Appeals Council may remand a case to an administrative law judge so that he or she may hold a hearing and issue a decision or a 2 recommended decision. The Appeals Council may also remand a case in which addiction evidence is needed or additional action by the 3 administrative law judge is required.
4 20 C.F.R. § 404.977(a) (emphasis added); see also 20 C.F.R. § 404.983(e) (the 5 procedures outlined in Section 404.977 apply to cases remanded by federal courts). 6 Where a de novo hearing would not provide helpful insight on remand, one is not 7 required. 8 DISABILITY DETERMINATION 9 A “disability” is defined, for the purposes of receiving social security 10 benefits, as the “inability to engage in any substantial gainful activity by reason of 11 any medically determinable physical or mental impairment which can be expected 12 to result in death or which has lasted or can be expected to last for a continuous
13 period of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 14 The ALJ uses a five-step sequential evaluation process to determine whether a 15 claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520, 416.920. 16 At step one, the ALJ considers the claimant’s work activity, if any. 20 C.F.R.
17 §§ 404.1520(a)(4)(i),(b), 416.920(a)(4)(i),(b). If the claimant is doing any 18 substantial gainful activity, the ALJ will find the claimant not disabled and deny 19 their claim. Id. If the claimant is not doing any substantial gainful activity, the
20 evaluation proceeds to step two. 1 At step two, the ALJ considers the medical severity of the claimant’s 2 impairment(s). 20 C.F.R. §§ 404.1520(a)(4)(ii), (c), 416.920(a)(4)(ii), (c). If they
3 do not have a severe medically determinable physical or mental impairment that 4 meets the twelve-month duration requirement in Section 404.1509, or a 5 combination of impairments that is severe and meets the duration requirement, the
6 ALJ will find the claimant not disabled and deny their claim. Id. If the claimant 7 does have a severe physical or mental impairment, the evaluation proceeds to step 8 three. 9 At step three, the ALJ also considers the medical severity of the claimant’s
10 impairment(s). 20 C.F.R. §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d). If they 11 have an impairment(s) that meets or equals one of the Social Security 12 Administration’s listings in appendix 1 of this subpart and meets the duration
13 requirement, the ALJ will find the claimant disabled. Id.; 404 Subpt. P App. 1. If 14 their impairment(s) does not meet or equal a listed impairment, the evaluation 15 proceeds to step four. 16 At step four, the ALJ considers the claimant’s residual functional capacity
17 and their past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), (e), 18 416.920(a)(4)(iv), (e). If they can still do their past relevant work, the ALJ will find 19 the claimant not disabled and deny their claim. Id.; see also §§ 416.920(f), (h),
20 416.960(b). If they cannot, the evaluation proceeds to step five. 1 At the fifth and final step, the ALJ considers the claimant’s residual 2 functional capacity and their age, education, and work experience to see if they can
3 adjust to other work. 20 C.F.R. §§ 404.1520(a)(4)(v), (f), 416.920(a)(4)(v), (f). If 4 they can adjust to other work, the ALJ will find the claimant not disabled and deny 5 their claim. Id. If they cannot, the ALJ will find the claimant disabled and grant
6 their claim. Id.; see also §§ 404.1520(g), (h), 404.1560(c). 7 The burden shifts during this sequential disability analysis. The claimant has 8 the initial burden of establishing a prima facie case of entitlement to benefits. 9 Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). If the claimant makes such
10 a showing, the burden then shifts to Defendant to show work within the claimant’s 11 capabilities. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984); see also SSR 13- 12 2P, 2013 WL 621536, at *4 (“The claimant has the burden of proving disability
13 throughout the sequential evaluation process. Our only burden is limited to 14 producing evidence that work the claimant can do exists in the national economy at 15 step 5 of the sequential evaluation process.”). To find a claimant disabled, their 16 impairments must not only prevent them from doing their previous work, but also
17 (considering their age, education, and work experience) prevent them from doing 18 any other substantial gainful work that exists in the national economy. Id.; 42 U.S.C. 19 §§ 423(d)(2)(A), 1382c(a)(3)(B).
20 // 1 ALJ FINDINGS 2 The ALJ found that Plaintiff had last met the insured status requirements of
3 the Social Security Act on March 31, 2018. AR 391. At step one, the ALJ found 4 that Plaintiff had “not engaged in substantial gainful activity during the period from 5 her alleged onset date of October 31, 2012 through her date last insured of March
6 31, 2018 [“the relevant period”].” Id. 7 At step two, the ALJ found that Plaintiff suffered from severe impairments 8 during the relevant period, including: migraine headaches, obesity, cirrhosis of the 9 liver, somatoform disorder, and anxiety disorder. Id.
10 At step three, the ALJ found that Plaintiff did “not have an impairment or 11 combination of impairments that meets or medically equals the severity of one of 12 the listed impartments” during the relevant period. AR 392.
13 At step four, the ALJ found that Plaintiff has no past relevant work during 14 the relevant period. AR 397. 15 At step five, the ALJ found that, during the relevant period, Plaintiff had the 16 residual functional capacity to perform light work, except she can never climb
17 ladders, ropes, scaffolds, ramps, or stairs and can occasionally stoop and crouch. 18 The ALJ found she can “perform unskilled repetitive routine tasks in two-hour 19 increments; have no contact with the public; occasional contact with supervisors;
20 and can work in proximity to but not in coordination with, coworkers.” AR 393. 1 Based on Plaintiff’s age, education, work experience, and residual functional 2 capacity, the ALJ found that she could perform other work existing in significant
3 numbers in the national economy during the relevant period and thus was not 4 disabled. AR 397–99. The ALJ determined that Plaintiff could perform the 5 requirements of occupations such as mail clerk, marker, or food sorter. AR 398.
6 DISCUSSION 7 A. Remand for Benefits 8 The Court declines to reverse for an immediate award of benefits. The Court 9 cannot determine that remand would only delay an award to Plaintiff. Cf. Lewin v.
10 Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Although Plaintiff’s evidence, when 11 credited, constitutes convincing evidence of disability, it is possible a reasonable 12 ALJ could find otherwise. Treichler, 775 F.3d at 1101. For example, Plaintiff held
13 herself out as being able to do some work during the relevant period. See AR 344 14 (asking Dr. Whittlesey, her treatment provider to sign doctor’s note describing her 15 limitations so she could return to “some type of employment.”); see also AR 190 16 (Plaintiff collected unemployment benefits during 2013). And Dr. Williams himself
17 noted that Plaintiff “did not appear particularly anxious.” AR 336. This undermines 18 Plaintiff’s contention that giving Dr. Williams’s opinion great weight necessitates 19 a finding of disability. See ECF No. 26 at 5–8. There might be—and perhaps even
20 likely is—as Plaintiff claims, an explanation for these inconsistencies which causes 1 the ALJ to make a determination that Plaintiff was disabled. But the Court cannot 2 find that the record, taken as a whole, leaves “not the slightest uncertainty as to the
3 outcome.” Treichler, 775 F.3d at 1101; see also Garrison, 759 F.3d at 1020. 4 B. De Novo Hearing 5 The Court also declines to require a de novo hearing upon remand, leaving
6 that determination to the discretion of the ALJ, given the instructions below. The 7 relevant period ended on March 31, 2018. AR 391. There have been two hearings 8 since that time. ECF No. 28 at 2 (citing AR 1080–115 and AR 407–44). At the most 9 recent hearing, Plaintiff stated “she can’t remember hardly anything.” AR 424. A
10 reasonable ALJ could determine that a de novo hearing is not necessary and would 11 not provide new information or helpful insight. 12 Accordingly, IT IS HEREBY ORDERED:
13 1. Plaintiff’s Motion for Summary Judgment, ECF No. 23, is 14 GRANTED IN PART and DENIED IN PART. 15 2. Defendant’s Motion to Remand, ECF No. 25, is GRANTED. 16 3. The above-captioned case shall be REVERSED and REMANDED
17 for further administrative proceedings. 18 4. On remand, the ALJ shall: 19 A. Further evaluate the opinions of the record, especially those of
20 Dr. Williams, and provide rationale for the weight accorded; 1 B. _ Properly assess and weigh the opinion of consultative examiner, 2 R. Richard Sloop, M.D.; 3 C. Properly assess lay witness testimony; 4 D. — Further evaluate Plaintiffs residual functional capacity; 5 E. If warranted, obtain evidence from a medical expert related to 6 the nature and severity of and functional limitations resulting 7 from Plaintiff's impairments; 8 F. If warranted, obtain supplemental evidence from a vocational 9 expert to clarify the effect of the assessed limitations on 10 Plaintiff's occupational base; and 11 G. — If warranted, conduct a de novo hearing. See 42 U.S.C. § 12 405(b)(1), (g). 13 5. All hearings and deadlines are STRICKEN. 14 6. The Clerk’s Office is directed to ENTER JUDGMENT for Plaintiff 15 and CLOSE the file. 16 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and
17 || provide copies to all counsel. 18 DATED this 17" day of September 2021. 19 hrendanle TN 20 SALVADOR MENDOZAYIR. United States District Judge