Long v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: September 25, 2019
• Docket: 2:18-cv-01516
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RACHEL H. L., CASE NO. 2:18-CV-01516-DWC 11 Plaintiff, ORDER REVERSING AND 12 v. REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15

Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of 16 Defendant’s denial of her application for supplemental security income (“SSI”). Pursuant to 28 17 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have 18 consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 4. 19 The parties agree the Administrative Law Judge (“ALJ”) committed reversible error. As 20 there are no outstanding issues to be resolved and it is clear Plaintiff would be found disabled if 21 Dr. Tracy Gordy, M.D.’s opinion is credited as true, the Court remands this case for an award of 22 benefits pursuant to sentence four of 42 U.S.C. § 405(g) to the Commissioner of Social Security 23 (“Commissioner”). 24 1 FACTUAL AND PROCEDURAL HISTORY 2 On March 23, 2012, Plaintiff filed an application for SSI, alleging disability beginning 3 January 1, 1992. See Dkt. 9, Administrative Record (“AR”) 1511. The application was denied 4 upon initial administrative review and on reconsideration. See AR 1511. After holding an

5 administrative hearing, ALJ Glen G. Meyers issued a decision on January 11, 2013 finding 6 Plaintiff not disabled. AR 36-88, 1683-1707. The Appeals Council vacated the January 2013 7 decision and remanded the case to an ALJ for further proceedings. AR 176-79. On remand from 8 the Appeals Council, ALJ Meyers held a second administrative hearing. AR 89-132; see also AR 9 1511. In a decision dated October 31, 2014, ALJ Meyers again found Plaintiff was not disabled. 10 AR 11-34; see also AR 1511. The Appeals Council denied Plaintiff’s administrative appeal. See 11 AR 1-6. Plaintiff appealed to the United States District Court for the Western District of 12 Washington (“District Court”); the District Court remanded the case to the Commissioner for 13 further proceedings. See AR 1718-27. 14 On remand from the District Court, the Appeals Council vacated the October 2014

15 decision and remanded the case to an ALJ for further proceedings. AR 1733-36. ALJ Kelly 16 Wilson held an administrative hearing on November 18, 2016. AR 1544-1612. No decision was 17 rendered. ALJ Rebecca L. Jones then held an administrative hearing and a supplemental hearing. 18 AR 1613-1643, 1644-1682. ALJ Jones issued the third ALJ decision in this matter on August 13, 19 2018, finding Plaintiff not disabled. AR 1511-32. Plaintiff now appeals ALJ Jones’s August 13, 20 2018 decision, which is the final decision of the Commissioner.1 21 22

23 1 When stating “the ALJ” or “the ALJ’s decision” throughout this Order, the Court is referring to ALJ 24 Jones’s August 13, 2018 decision. 1 In the Opening Brief, Plaintiff maintains the ALJ erred by: (1) improperly determining 2 Plaintiff’s use of marijuana was a factor material to her disability; (2) violating the law of the 3 case doctrine; (3) improperly evaluating the medical evidence; (4) improperly evaluating 4 Plaintiff’s testimony; (5) improperly evaluating the lay evidence; (6) improperly determining

5 Plaintiff did not meet a Listing; and (7) failing to properly assess Plaintiff’s residual functional 6 capacity. Dkt. 15, pp. 1-2. Plaintiff requests the Court remand this case for an award of benefits. 7 Id. at pp. 27-28. 8 STANDARD OF REVIEW 9 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 10 social security benefits if the ALJ’s findings are based on legal error or not supported by 11 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 12 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 13 DISCUSSION 14 Plaintiff and Defendant agree the ALJ committed reversible error. Dkt. 15, 18, 19.

15 Plaintiff argues the case should be remanded for payment of benefits, while Defendant asserts 16 the case should be remanded for further administrative proceedings. See Dkt. 15, 18, 19. 17 I. Credit-as-true 18 The Court may remand a case “either for additional evidence and findings or to award 19 benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Court 20 reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the 21 agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th 22 Cir. 2004) (citations omitted). However, the Ninth Circuit created a “test for determining when 23 evidence should be credited and an immediate award of benefits directed[.]” Harman v. Apfel,

24 1 211 F.3d 1172, 1178 (9th Cir. 2000). Specifically, under this “credit-as-true” test, benefits should 2 be awarded where: 3 (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] evidence, (2) there are no outstanding issues that must be resolved 4 before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence 5 credited.

6 Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). 7 An ALJ’s errors are relevant, however, only to the extent they impact the underlying 8 question of the Plaintiff’s disability. Strauss v. Commissioner of the Social Sec. Admin., 635 F.3d 9 1135, 1138 (9th Cir. 2011). “A claimant is not entitled to benefits under the statute unless the 10 claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may be.” Id. (citing 11 Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 357 (7th Cir. 2005)). Therefore, even if the 12 “credit-as-true” conditions are satisfied, a court should nonetheless remand the case if “an 13 evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled.” 14 Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (citing Connett v. Barnhart, 340 F.3d 15 871, 876 (9th Cir. 2004)). 16 In following the three-step inquiry, the Court finds the “credit-as-true” criteria have been 17 satisfied in this case. First, the parties agree the ALJ committed reversible error and, thus, 18 provided legally insufficient reasons for rejecting Plaintiff’s evidence. Dkt. 18, 19. 19 Second, there are no outstanding issues that must be resolved before a disability 20 determination can be made. On remand from the District Court, the Appeals Council directed the 21 ALJ to offer Plaintiff a hearing and take any further action needed to complete the administrative 22 record. AR 1735. Two ALJs held three additional administrative hearings and an impartial 23 medical expert testified regarding Plaintiff’s impairments. AR 1544-1682. Defendant requests 24 1 this case be remanded so the Appeals Council can consider if benefits should be awarded or if 2 the case should be remanded to an ALJ for further proceedings. Dkt. 18. Defendant asserts that, 3 if the case is remanded to an ALJ, the Appeals Council will instruct the ALJ to obtain additional 4 evidence to clarify whether the severity of Plaintiff’s impairments meet or equal a listed

5 impairment and whether Plaintiff’s substance use is material to a determination of disability. Id. 6 at p. 2. However, the record contains evidence from an impartial medical expert stating 7 Plaintiff’s impairments meet or equal a listed impairment regardless of Plaintiff’s substance use. 8 See AR 1650-56. Defendant does not explain why the evidence in the record is not sufficient for 9 a disability determination or explain what additional evidence must be obtained to resolve any 10 outstanding issues. See Dkt. 18. Accordingly, the Court finds the record is fully developed and 11 there are no outstanding issues that must be decided on remand. See Young v. Comm'r Soc. Sec. 12 Admin., 214 F. Supp. 3d 987, 1000 (D. Or. 2016) (finding the record was fully developed and no 13 outstanding factual issues remained where the case had been remanded previously and four 14 consultative examinations had been conducted).

15 Third, it is clear from the record that the ALJ would be required to find the claimant 16 disabled if the rejected evidence is credited as true. Here, the ALJ found Plaintiff’s impairments, 17 including the substance use disorder, meet section 12.06 of the Listings. AR 1515. However, the 18 ALJ determined that, if Plaintiff stopped the substance use, there would be a significant number 19 of jobs in the national economy Plaintiff could perform and she was, therefore, not disabled. AR 20 1516-32. The parties agree the ALJ failed to properly reject, among others, the opinion of an 21 impartial medical expert, Dr. Tracy Gordy, M.D. See Dkt. 15, 18, 19. Dr. Gordy testified that 22 Plaintiff met the criteria of Listing 12.05 and equaled Listing 12.06. AR 1529, 1652-53. Dr. 23 Gordy considered Plaintiff’s alcohol and marijuana use and opined that Plaintiff’s substance use

24 1 is not material to this case. AR 1654-55. If Dr. Gordy’s opinion is credited as true, Plaintiff 2 meets a Listing, regardless of her substance use. See Ball v. Massanari, 254 F.3d 817, 821 (9th 3 Cir. 2001) (if a claimant’s current limitations “would remain once he [or she] stopped using 4 drugs and alcohol,” and those limitations are disabling, “then drug addiction or alcoholism is not

5 material to the disability, and the claimant will be deemed disabled”). Accordingly, the Court 6 finds the “credit-as-true” criteria have been satisfied in this case. Further, the parties have failed 7 to show, and the Court does not find, there is serious doubt Plaintiff is disabled. See Garrison, 8 759 F.3d at 1021. 9 II. Exceptional Circumstances 10 In addition to finding all three “credit-as-true” criteria have been satisfied, the Court finds 11 the exceptional facts of this case warrant an award of benefits. As discussed in the procedural 12 background of this case, Plaintiff filed her application for SSI in March of 2012. See AR 307-15, 13 1511. Over the last seven and a half years, Plaintiff has appeared at four administrative hearings 14 and one supplemental hearing. See AR 36-88, 89-132, 1544-1612, 1613-43, 1644-82. There have

15 been three ALJ decisions issued by two different ALJs. AR 11-35, 158-75, 1508-43. Plaintiff’s 16 case has been remanded by the District Court on one occasion and by the Appeals Council on an 17 additional occasion. AR 176-80, 1718-30. Further, the Commissioner has again conceded the 18 ALJ committed harmful error in the most recent ALJ decision. See Dkt. 18. 19 With every remand, the record in the case appears to have become more convoluted with 20 little apparent benefit. For example, to the extent Plaintiff and Plaintiff’s various medical 21 providers will be asked on remand to testify as to the nature and extent of Plaintiff’s limitations, 22 the proceedings would appear to be devoid of any useful purpose. The record contains the 23 testimony of an impartial medical expert, who found Plaintiff substance use is immaterial in this

24 1 case. Defendant’s request that this case be remanded for further proceedings to obtain additional 2 evidence to clarify if Plaintiff’s impairments meet a listed impairment and if DAA is material 3 strongly resembles the “‘heads we win; tails, let’s play again’ system of disability benefits 4 adjudication” that has been roundly criticized by the Ninth Circuit. Benecke, 379 F.3d at 595.

5 Therefore, the Court finds exceptional circumstances warrant remand for an award of benefits. 6 See Trevizo v. Berryhill, 871 F.3d 664, 683 (9th Cir. 2017) (finding exceptional facts warranted 7 benefits where the claimant was 65 years old, had been seeking benefits for over seven years, 8 and had been unable to afford necessary treatment); Smolen, 80 F.3d at 1292 (remanding for 9 benefits where the claimant had “already waited over seven years for her disability 10 determination”). 11 III. Conclusion 12 In summation, the Court finds the “credit-as-true” test has been satisfied in this case. In 13 addition, the exceptional facts of this case warrant an award of benefits. Accordingly, this case is 14 remanded for an award of benefits. See Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012)

15 (noting a Court may exercise its discretion to remand a case for an award of benefits “where no 16 useful purpose would be served by further administrative proceedings and the record has been 17 thoroughly developed.”) (internal citations and quotations omitted); Ingram v. Barnhart, 72 Fed. 18 App’x 631, 637-38 (9th Cir. 2003) (awarding benefits where it was clear the claimant was 19 entitled to SSI benefits had the examining physician’s opinion that the claimant would be 20 disabled even if her substance abuse was successfully treated had been properly credited); 21 CONCLUSION 22 Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 23 Plaintiff was not disabled. The Court finds remand for an award of benefits is appropriate.

24 1 Accordingly, Defendant’s decision to deny benefits is reversed and this matter is remanded for 2 an award of benefits. 3 Dated this 25th day of September, 2019. 4 A 5 David W. Christel United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24