1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Melinda Kay Kohus, No. CV-19-0311-TUC-BGM
10 Plaintiff,
11 v. ORDER
12 Andrew M. Saul, Acting Commissioner of Social Security, 13 Defendant. 14 15 Currently pending before the Court is Plaintiff’s Opening Brief (Doc. 16). 16 Defendant filed his Answering Brief and Countermotion for Remand (“Response”) (Doc. 17 19), and Plaintiff filed her Reply (Doc. 20). Plaintiff brings this cause of action for review 18 of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 19 405(g). The United States Magistrate Judge has received the written consent of both 20 parties, and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal 21 Rules of Civil Procedure. 22 23 I. BACKGROUND 24 On October 20, 2015, Plaintiff protectively filed a Title II application for Social 25 Security Disability Insurance Benefits (“DIB”) and a Title XVI application for 26 Supplemental Security Income (“SSI”) alleging disability as of September 1, 2009 due to 27 bipolar disorder, schizoaffective disorder, depression with psychosis, post-traumatic stress 28 1 disorder, and social phobia.1 See Administrative Record (“AR”) at 42, 84, 96, 113–15, 2 172, 301. The Social Security Administration (“SSA”) denied these applications on March 3 2, 2016. Id. at 45, 191–98. On March 29, 2016, Plaintiff filed a request for reconsideration, 4 and on July 22, 2016, SSA denied Plaintiff’s Title II application upon reconsideration, but 5 approved her application for Title XVI payments as of Plaintiff’s protective filing date. Id. 6 at 45, 199–200, 203–08, 227–44. On August 1, 2016, Plaintiff filed her request for hearing. 7 Id. at 45, 209–10. On December 13, 2017, a hearing was held before Administrative Law 8 Judge (“ALJ”) Peter J. Baum. Id. at 45, 60–83. On May 16, 2018, the ALJ issued a 9 partially favorable decision.2 AR at 41–54. On June 25, 2018, Plaintiff requested review 10 of the ALJ’s decision by the Appeals Council, and on June 4, 2019, review was denied. Id. 11 at 1–8, 251–52. On June 12, 2019, Plaintiff filed this cause of action. Compl. (Doc. 1). 12 13 II. ANALYSIS 14 The parties agree that remand is appropriate in this case. See Response (Doc. 19) 15 at 4. The disagreement surrounds whether this Court should remand the matter for a finding 16 of disability and award of benefits, or for further administrative proceedings. See Pl.’s 17 Opening Br. (Doc. 16); Def.’s Response (Doc. 19); Pl.’s Reply (Doc. 20). Plaintiff raises 18 five (5) issues for review, including whether 1) the ALJ found that Plaintiff did not have a 19 “severe” substance use disorder prior to October 20, 2015; 2) the ALJ provided legally 20 sufficient reasons for rejecting the October 2014 opinions of Agency examining 21 psychologist Dr. Rohen; 3) the ALJ gave legally sufficient germane reasons for rejecting 22 the April 2016 opinions of treating nurse practitioner Ms. Rosen; 4) the July 2016 23
24 1 The ALJ noted that “[t]he claimant previously filed Title II applications on November 30, 25 2011 and February 27, 2014[,] . . . [but] determined that the previous determinations will not be reopened[.]” AR at 45. 26 2 The ALJ found Plaintiff disabled as of October 20, 2015; however, because her date last 27 insured was December 31, 2014, her DIB claim was denied. See Flaten v. Sec’y of Health and Hum. Servs., 44 F.3d 1453, 1461 (9th Cir. 1995) (“The claimant is eligible for coverage only if the 28 current period of disability extends back continuously to an onset date prior to the expiration of insured status.”). 1 reconsideration determinations of non-examining State-agency psychologist Dr. Brode is 2 substantial evidence for the ALJ’s residual functional capacity assessment for the period 3 prior to October 20, 2015; and 5) the ALJ complied with Social Security Ruling (“SSR”) 4 00-4p. Pl.’s Opening Br. (Doc. 16) at 1–2. Plaintiff seeks this Court to “enter judgment 5 under sentence four of 42 U.S.C. § 405(g), reversing the Commissioner’s final decision 6 without a remand for a hearing, i.e., for a finding of clear disability and an award of 7 benefits, for the period from October 30, 2014 through October 19, 2015.” Pl.’s Reply 8 (Doc. 20) at 11. “The Commissioner agrees that the ALJ improperly relied on Dr. Brode’s 9 opinion insofar as Dr. Brode appears to have selected the October 20, 2015 onset date 10 without identifying any medical basis for doing so[,] [and] . . . insofar as the ALJ rejected 11 Dr. Rohen’s opinion and Ms. Rosen’s assessment because they did not adequately consider 12 or address alcohol/drug use, the Commissioner agrees that these reasons are internally 13 inconsistent with the ALJ’s finding that substance use disorder was not a contributing 14 factor material to the determination of disability.” Def.’s Response (Doc. 19) at 5. As 15 such, the Commissioner seeks a remand order that “instruct[s] the ALJ to: further consider 16 the opinion evidence in the record pursuant to 20 C.F.R. § 404.1527, including the opinions 17 of Dr. Rohen (Exhibit 4F) and Ms. Rosen (Exhibit 6F); further consider Plaintiff’s 18 subjective complaints; further consider Plaintiff’s residual function capacity; if necessary, 19 obtain supplemental vocational expert evidence; and issue a new decision for the period 20 through December 31, 2014.” Response (Doc. 19) at 5. 21 A federal court may affirm, modify, reverse, or remand a social security case. 42 22 U.S.C. §405(g). “‘[T]he decision whether to remand the case for additional evidence or 23 simply to award benefits is within the discretion of the court.’” Rodriguez v. Bowen, 876 24 F.2d 759, 763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)). 25 “Remand for further administrative proceedings is appropriate if enhancement of the record 26 would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citing Harman 27 v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). Conversely, remand for an award of benefits 28 is appropriate where: 1 (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a 2 determination of disability can be made; and (3) it is clear from the record 3 that the ALJ would be required to find the claimant disabled were such evidence credited. 4 Benecke, 379 F.3d at 593 (citations omitted). Where the test is met, “we will not remand 5 solely to allow the ALJ to make specific findings. . . . Rather, we take the relevant testimony 6 to be established as true and remand for an award of benefits." Id. (citations omitted); see 7 also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Melinda Kay Kohus, No. CV-19-0311-TUC-BGM
10 Plaintiff,
11 v. ORDER
12 Andrew M. Saul, Acting Commissioner of Social Security, 13 Defendant. 14 15 Currently pending before the Court is Plaintiff’s Opening Brief (Doc. 16). 16 Defendant filed his Answering Brief and Countermotion for Remand (“Response”) (Doc. 17 19), and Plaintiff filed her Reply (Doc. 20). Plaintiff brings this cause of action for review 18 of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 19 405(g). The United States Magistrate Judge has received the written consent of both 20 parties, and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal 21 Rules of Civil Procedure. 22 23 I. BACKGROUND 24 On October 20, 2015, Plaintiff protectively filed a Title II application for Social 25 Security Disability Insurance Benefits (“DIB”) and a Title XVI application for 26 Supplemental Security Income (“SSI”) alleging disability as of September 1, 2009 due to 27 bipolar disorder, schizoaffective disorder, depression with psychosis, post-traumatic stress 28 1 disorder, and social phobia.1 See Administrative Record (“AR”) at 42, 84, 96, 113–15, 2 172, 301. The Social Security Administration (“SSA”) denied these applications on March 3 2, 2016. Id. at 45, 191–98. On March 29, 2016, Plaintiff filed a request for reconsideration, 4 and on July 22, 2016, SSA denied Plaintiff’s Title II application upon reconsideration, but 5 approved her application for Title XVI payments as of Plaintiff’s protective filing date. Id. 6 at 45, 199–200, 203–08, 227–44. On August 1, 2016, Plaintiff filed her request for hearing. 7 Id. at 45, 209–10. On December 13, 2017, a hearing was held before Administrative Law 8 Judge (“ALJ”) Peter J. Baum. Id. at 45, 60–83. On May 16, 2018, the ALJ issued a 9 partially favorable decision.2 AR at 41–54. On June 25, 2018, Plaintiff requested review 10 of the ALJ’s decision by the Appeals Council, and on June 4, 2019, review was denied. Id. 11 at 1–8, 251–52. On June 12, 2019, Plaintiff filed this cause of action. Compl. (Doc. 1). 12 13 II. ANALYSIS 14 The parties agree that remand is appropriate in this case. See Response (Doc. 19) 15 at 4. The disagreement surrounds whether this Court should remand the matter for a finding 16 of disability and award of benefits, or for further administrative proceedings. See Pl.’s 17 Opening Br. (Doc. 16); Def.’s Response (Doc. 19); Pl.’s Reply (Doc. 20). Plaintiff raises 18 five (5) issues for review, including whether 1) the ALJ found that Plaintiff did not have a 19 “severe” substance use disorder prior to October 20, 2015; 2) the ALJ provided legally 20 sufficient reasons for rejecting the October 2014 opinions of Agency examining 21 psychologist Dr. Rohen; 3) the ALJ gave legally sufficient germane reasons for rejecting 22 the April 2016 opinions of treating nurse practitioner Ms. Rosen; 4) the July 2016 23
24 1 The ALJ noted that “[t]he claimant previously filed Title II applications on November 30, 25 2011 and February 27, 2014[,] . . . [but] determined that the previous determinations will not be reopened[.]” AR at 45. 26 2 The ALJ found Plaintiff disabled as of October 20, 2015; however, because her date last 27 insured was December 31, 2014, her DIB claim was denied. See Flaten v. Sec’y of Health and Hum. Servs., 44 F.3d 1453, 1461 (9th Cir. 1995) (“The claimant is eligible for coverage only if the 28 current period of disability extends back continuously to an onset date prior to the expiration of insured status.”). 1 reconsideration determinations of non-examining State-agency psychologist Dr. Brode is 2 substantial evidence for the ALJ’s residual functional capacity assessment for the period 3 prior to October 20, 2015; and 5) the ALJ complied with Social Security Ruling (“SSR”) 4 00-4p. Pl.’s Opening Br. (Doc. 16) at 1–2. Plaintiff seeks this Court to “enter judgment 5 under sentence four of 42 U.S.C. § 405(g), reversing the Commissioner’s final decision 6 without a remand for a hearing, i.e., for a finding of clear disability and an award of 7 benefits, for the period from October 30, 2014 through October 19, 2015.” Pl.’s Reply 8 (Doc. 20) at 11. “The Commissioner agrees that the ALJ improperly relied on Dr. Brode’s 9 opinion insofar as Dr. Brode appears to have selected the October 20, 2015 onset date 10 without identifying any medical basis for doing so[,] [and] . . . insofar as the ALJ rejected 11 Dr. Rohen’s opinion and Ms. Rosen’s assessment because they did not adequately consider 12 or address alcohol/drug use, the Commissioner agrees that these reasons are internally 13 inconsistent with the ALJ’s finding that substance use disorder was not a contributing 14 factor material to the determination of disability.” Def.’s Response (Doc. 19) at 5. As 15 such, the Commissioner seeks a remand order that “instruct[s] the ALJ to: further consider 16 the opinion evidence in the record pursuant to 20 C.F.R. § 404.1527, including the opinions 17 of Dr. Rohen (Exhibit 4F) and Ms. Rosen (Exhibit 6F); further consider Plaintiff’s 18 subjective complaints; further consider Plaintiff’s residual function capacity; if necessary, 19 obtain supplemental vocational expert evidence; and issue a new decision for the period 20 through December 31, 2014.” Response (Doc. 19) at 5. 21 A federal court may affirm, modify, reverse, or remand a social security case. 42 22 U.S.C. §405(g). “‘[T]he decision whether to remand the case for additional evidence or 23 simply to award benefits is within the discretion of the court.’” Rodriguez v. Bowen, 876 24 F.2d 759, 763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)). 25 “Remand for further administrative proceedings is appropriate if enhancement of the record 26 would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citing Harman 27 v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). Conversely, remand for an award of benefits 28 is appropriate where: 1 (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a 2 determination of disability can be made; and (3) it is clear from the record 3 that the ALJ would be required to find the claimant disabled were such evidence credited. 4 Benecke, 379 F.3d at 593 (citations omitted). Where the test is met, “we will not remand 5 solely to allow the ALJ to make specific findings. . . . Rather, we take the relevant testimony 6 to be established as true and remand for an award of benefits." Id. (citations omitted); see 7 also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “Even if those requirements are 8 met, though, we retain ‘flexibility’ in determining the appropriate remedy.” Burrell v. 9 Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). 10 Here, it is undisputed that the ALJ committed legal error in rejecting examining 11 physician testimony and discounting other source testimony. On October 27, 2014, Noelle 12 Rohen, Ph.D. examined Plaintiff and observed: 13 14 Psychiatric conditions are expected to be chronic with limited prognosis for significant additional improvement (though stabilization remains a 15 reasonable goal); treatment has been consistent and aggressive, it appears, 16 and has kept her from hospitalization in the past couple of years, but she does not appear to have been able to progress on the work front despite attempts. 17 Should Ms. Kohus be awarded Disability benefits, it is this evaluator’s 18 opinion that she may benefit from assistance in managing them, given mother’s report of inability to manage during mania, and claimant’s 19 acknowledgment of extended periods of amnesia during psychiatric 20 deteriorations. 21 AR at 615. “Allowing the Commissioner to decide the issue again would create an unfair 22 ‘heads we win; tails, let’s play again’ system of disability benefits adjudication.” Benecke 23 v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). The Court finds that 24 the record is well developed and no outstanding issues must be resolved before a 25 determination of benefits can be made. The Court further finds that it is clear from the 26 record that the ALJ would be required to find the claimant disabled were such evidence 27 properly credited. As such, the Court agrees with Plaintiff that a finding of disability and 28 an award of benefits is appropriate for the period from October 30, 2014 through October 19, 2015 is appropriate. 2 I. CONCLUSION 4 In light of the foregoing, the Court REVERSES the ALJ’s decision and the case is 5 || REMANDED for further proceedings consistent with this decision. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1) Plaintiff's Opening Brief (Doc. 16) is GRANTED; 8 2) The Commissioner’s decision is REVERSED and REMANDED for calculation and award of benefits. 42 U.S.C. § 405(g); and 10 3) The Clerk of the Court shall enter judgment, and close its file in this matter. 11 Dated this 30th day of November, 2020.
14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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