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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 NAVARRE L. CASE NO. 3:24-CV-5008-DWC 11 Plaintiff, v. ORDER RE: SOCIAL SECURITY 12 DISABILITY APPEAL COMMISSIONER OF SOCIAL 13 SECURITY, 14 Defendant.
15 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the denial 16 of his application for supplemental security income (SSI) benefits. Pursuant to 28 U.S.C. § 17 636(c), Fed. R. Civ. P. 73, and Local Rule MJR 13, the parties have consented to proceed before 18 the undersigned. After considering the record, the Court concludes that this matter must be 19 reversed and remanded pursuant to sentence for of 42 U.S.C. § 405(g) for further proceedings, 20 including a de novo hearing before a new Administrative Law Judge (ALJ). 21 I. BACKGROUND 22 Plaintiff filed an application for SSI on March 13, 2015. Administrative Record (AR) 23 212–21. After his application was denied initially and on reconsideration, a hearing was held 24 1 before ALJ Allen Erickson in May 2015. AR 44–108. In November 2017, ALJ Erickson issued a 2 decision finding Plaintiff not disabled. AR 23–43. In December 2019, U.S. Magistrate Judge 3 Theresa Fricke reversed ALJ Erickson’s decision. AR 983–98. On remand, ALJ Erickson held a 4 new hearing in December 2020 (AR 911–951) and issued another unfavorable decision in
5 January 2021 (AR 878–910). 6 Plaintiff appealed ALJ Erickson’s second decision to this Court (AR 2108–09) and U.S. 7 Magistrate Judge Brian Tsuchida issued a decision reversing ALJ Erickson’s second decision in 8 January 2022 (AR 2110–22). Plaintiff raised several issues on appeal, including an 9 Appointments Clause challenge to ALJ Erickson’s appointment. See AR 2119. Before 2018, 10 Social Security Administration ALJs, like ALJ Erickson, were appointed in the same manner as 11 the ALJs whose appointments were invalidated in Lucia v. SEC, 138 S. Ct. 2044 12 (2018). See Carr v. Saul, 141 S. Ct. 1353, 1362 (2021). ALJ Erickson was improperly appointed 13 at the time of his first decision, but not at the time of his second decision. AR 2119–20. But 14 because Lucia entitled a claimant to a new hearing before a constitutionally appointed official,
15 Judge Tsuchida found “ALJ Erickson’s subsequent and proper appointment in 2018 did not . . . 16 cure the first decision’s constitutional defect.” Id. For that reason, Judge Tsuchida reversed the 17 decision and ordered that “another ALJ must hold [a] new hearing and adjudicate Plaintiff’s 18 application.” AR 2121. 19 However, Judge Tsuchida also considered Plaintiff’s remaining arguments, deciding all 20 of them in Commissioner’s favor: he found ALJ Erickson did not err in evaluating six medical 21 opinions, Plaintiff’s subjective testimony, and several lay witness statements. See AR 2113–19. 22 On remand, ALJ David Johnson held a hearing on August 9, 2023. AR 2043–74. He 23 issued a decision finding Plaintiff not disabled on September 6, 2023. AR 2002–42. Plaintiff
24 1 failed to file exceptions with the Appeals Council, making the ALJ’s decision the 2 Commissioner’s final decision subject to judicial review. See 20 C.F.R. § 416.1484(a). Plaintiff 3 filed a Complaint in this Court on January 4, 2024. Dkt. 6. 4 II. STANDARD
5 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of 6 social security benefits if and only if the ALJ's findings are based on legal error or not supported 7 by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 8 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 9 III. DISCUSSION 10 Plaintiff raises several points of error and requests the Court remand the case for an 11 award of benefits or, in the alternative, for a new hearing before a different ALJ. See id. at 18– 12 19. 13 Plaintiff argues the ALJ erred in evaluating the following evidence: his subjective 14 symptom testimony; the statements of several lay witnesses (including his mother, father, and a
15 friend); and the medical opinions of Dr. Carla Van Dam, Dr. Terilee Wingate, Dr. Arthur 16 Tolentino, Dr. Jan Lewis, Dr. Irmgard E. Friedburg, and Cephus Childs, MS. See generally Dkt. 17 13. In his January 2022 decision, Judge Tsuchida found ALJ Erickson’s second decision 18 adequately assessed this same evidence. See AR 2113–19. ALJ Johnson’s decision repeated— 19 verbatim or almost verbatim—the analysis of this evidence from ALJ Erickson’s second 20 decision.1 Defendant argues Plaintiff is precluded from challenging ALJ Johnson’s assessment of 21
1 ALJ Johnson repeated verbatim ALJ Erickson’s assessments of the medical opinions of Drs. Van Dam, Wingate, 22 and Tolentino (compare AR 895–97 with AR 2024–25) and Mr. Childs (compare AR 897 with AR 2026). All but the final sentence of ALJ Johnson’s analysis of Drs. Lewis and Friedburg’s opinions was repeated verbatim from 23 ALJ Erickson’s assessments of the same. Compare AR 895 (from “they were able to review the record available at the time” to “he also has friends and he was able to play with others doing semi-pro football”) with AR 2023. ALJ 24 1 this evidence under the law of the case doctrine. Dkt. 15 at 2. Defendant raises no other argument 2 defending the ALJ’s assessment of this evidence. See id. 3 “[T]he law of the case doctrine . . . appl[ies] to social security administrative remands 4 from federal court in the same way [it] would apply to any other case.” Stacy v. Colvin, 825 F.3d
5 563, 566 (9th Cir. 2016). It “generally prohibits a court from considering an issue that has 6 already been decided by that same court.” Id. (citation omitted). But “the law of the case doctrine 7 gives no preclusive effect to dicta.” Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.3d 8 703, 716 (9th Cir. 1990) (citing Ducey v. U.S., 830 F.2d 1071, 1072 (9th Cir. 1987)). 9 “Application of the doctrine is discretionary.” Hall v. City of Los Angeles, 697 F.3d 1059, 1067 10 (9th Cir. 2012). 11 The Court declines to apply the law of the case doctrine here. Judge Tsuchida’s decision 12 directed Commissioner to appoint a new ALJ in the matter who was to conduct a de novo 13 hearing. AR 2122. Had Judge Tsuchida concluded any of the evidence in the case had been 14 improperly assessed, the same mandate would still have been justified given the appointments
15 clause defect in ALJ Erickson’s second decision. See AR 2120–21. As such, Judge Tuschida’s 16 determinations with respect to this evidence was dicta and the law of the case gives no preclusive 17 effect to such findings. See Milgard Tempering, Inc., 902 F.3d at 716. 18 The law of the case doctrine does not apply to the challenged assessments of evidence 19 described above.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 NAVARRE L. CASE NO. 3:24-CV-5008-DWC 11 Plaintiff, v. ORDER RE: SOCIAL SECURITY 12 DISABILITY APPEAL COMMISSIONER OF SOCIAL 13 SECURITY, 14 Defendant.
15 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the denial 16 of his application for supplemental security income (SSI) benefits. Pursuant to 28 U.S.C. § 17 636(c), Fed. R. Civ. P. 73, and Local Rule MJR 13, the parties have consented to proceed before 18 the undersigned. After considering the record, the Court concludes that this matter must be 19 reversed and remanded pursuant to sentence for of 42 U.S.C. § 405(g) for further proceedings, 20 including a de novo hearing before a new Administrative Law Judge (ALJ). 21 I. BACKGROUND 22 Plaintiff filed an application for SSI on March 13, 2015. Administrative Record (AR) 23 212–21. After his application was denied initially and on reconsideration, a hearing was held 24 1 before ALJ Allen Erickson in May 2015. AR 44–108. In November 2017, ALJ Erickson issued a 2 decision finding Plaintiff not disabled. AR 23–43. In December 2019, U.S. Magistrate Judge 3 Theresa Fricke reversed ALJ Erickson’s decision. AR 983–98. On remand, ALJ Erickson held a 4 new hearing in December 2020 (AR 911–951) and issued another unfavorable decision in
5 January 2021 (AR 878–910). 6 Plaintiff appealed ALJ Erickson’s second decision to this Court (AR 2108–09) and U.S. 7 Magistrate Judge Brian Tsuchida issued a decision reversing ALJ Erickson’s second decision in 8 January 2022 (AR 2110–22). Plaintiff raised several issues on appeal, including an 9 Appointments Clause challenge to ALJ Erickson’s appointment. See AR 2119. Before 2018, 10 Social Security Administration ALJs, like ALJ Erickson, were appointed in the same manner as 11 the ALJs whose appointments were invalidated in Lucia v. SEC, 138 S. Ct. 2044 12 (2018). See Carr v. Saul, 141 S. Ct. 1353, 1362 (2021). ALJ Erickson was improperly appointed 13 at the time of his first decision, but not at the time of his second decision. AR 2119–20. But 14 because Lucia entitled a claimant to a new hearing before a constitutionally appointed official,
15 Judge Tsuchida found “ALJ Erickson’s subsequent and proper appointment in 2018 did not . . . 16 cure the first decision’s constitutional defect.” Id. For that reason, Judge Tsuchida reversed the 17 decision and ordered that “another ALJ must hold [a] new hearing and adjudicate Plaintiff’s 18 application.” AR 2121. 19 However, Judge Tsuchida also considered Plaintiff’s remaining arguments, deciding all 20 of them in Commissioner’s favor: he found ALJ Erickson did not err in evaluating six medical 21 opinions, Plaintiff’s subjective testimony, and several lay witness statements. See AR 2113–19. 22 On remand, ALJ David Johnson held a hearing on August 9, 2023. AR 2043–74. He 23 issued a decision finding Plaintiff not disabled on September 6, 2023. AR 2002–42. Plaintiff
24 1 failed to file exceptions with the Appeals Council, making the ALJ’s decision the 2 Commissioner’s final decision subject to judicial review. See 20 C.F.R. § 416.1484(a). Plaintiff 3 filed a Complaint in this Court on January 4, 2024. Dkt. 6. 4 II. STANDARD
5 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of 6 social security benefits if and only if the ALJ's findings are based on legal error or not supported 7 by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 8 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 9 III. DISCUSSION 10 Plaintiff raises several points of error and requests the Court remand the case for an 11 award of benefits or, in the alternative, for a new hearing before a different ALJ. See id. at 18– 12 19. 13 Plaintiff argues the ALJ erred in evaluating the following evidence: his subjective 14 symptom testimony; the statements of several lay witnesses (including his mother, father, and a
15 friend); and the medical opinions of Dr. Carla Van Dam, Dr. Terilee Wingate, Dr. Arthur 16 Tolentino, Dr. Jan Lewis, Dr. Irmgard E. Friedburg, and Cephus Childs, MS. See generally Dkt. 17 13. In his January 2022 decision, Judge Tsuchida found ALJ Erickson’s second decision 18 adequately assessed this same evidence. See AR 2113–19. ALJ Johnson’s decision repeated— 19 verbatim or almost verbatim—the analysis of this evidence from ALJ Erickson’s second 20 decision.1 Defendant argues Plaintiff is precluded from challenging ALJ Johnson’s assessment of 21
1 ALJ Johnson repeated verbatim ALJ Erickson’s assessments of the medical opinions of Drs. Van Dam, Wingate, 22 and Tolentino (compare AR 895–97 with AR 2024–25) and Mr. Childs (compare AR 897 with AR 2026). All but the final sentence of ALJ Johnson’s analysis of Drs. Lewis and Friedburg’s opinions was repeated verbatim from 23 ALJ Erickson’s assessments of the same. Compare AR 895 (from “they were able to review the record available at the time” to “he also has friends and he was able to play with others doing semi-pro football”) with AR 2023. ALJ 24 1 this evidence under the law of the case doctrine. Dkt. 15 at 2. Defendant raises no other argument 2 defending the ALJ’s assessment of this evidence. See id. 3 “[T]he law of the case doctrine . . . appl[ies] to social security administrative remands 4 from federal court in the same way [it] would apply to any other case.” Stacy v. Colvin, 825 F.3d
5 563, 566 (9th Cir. 2016). It “generally prohibits a court from considering an issue that has 6 already been decided by that same court.” Id. (citation omitted). But “the law of the case doctrine 7 gives no preclusive effect to dicta.” Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.3d 8 703, 716 (9th Cir. 1990) (citing Ducey v. U.S., 830 F.2d 1071, 1072 (9th Cir. 1987)). 9 “Application of the doctrine is discretionary.” Hall v. City of Los Angeles, 697 F.3d 1059, 1067 10 (9th Cir. 2012). 11 The Court declines to apply the law of the case doctrine here. Judge Tsuchida’s decision 12 directed Commissioner to appoint a new ALJ in the matter who was to conduct a de novo 13 hearing. AR 2122. Had Judge Tsuchida concluded any of the evidence in the case had been 14 improperly assessed, the same mandate would still have been justified given the appointments
15 clause defect in ALJ Erickson’s second decision. See AR 2120–21. As such, Judge Tuschida’s 16 determinations with respect to this evidence was dicta and the law of the case gives no preclusive 17 effect to such findings. See Milgard Tempering, Inc., 902 F.3d at 716. 18 The law of the case doctrine does not apply to the challenged assessments of evidence 19 described above. Defendant raises no other argument defending the ALJ’s rationale with respect 20 to those assessments and, thus, the Court finds ALJ has conceded any further reasons for 21 Johnson repeated ALJ Erickson’s assessment of the lay witness statements, except that he added a single sentence 22 describing Plaintiff’s father’s statement, added three additional sentences analyzing the statement, and made a few non-substantive modifications (like changing “in light of the longitudinal record, which shows” to “the longitudinal 23 record shows”). Compare AR 897–98 with AR 2026–27. Finally, most of ALJ Johnson’s assessment of Plaintiff subjective testimony from before the 2023 hearing repeats nearly verbatim ALJ Erickson’s assessment of the same. 24 Compare AR 891–93 with AR 2015–17. 1 upholding the ALJ's decision. Accordingly, the Court finds this matter should be reversed. 2 Plaintiff also argues the ALJ erred in evaluating the medical opinions of state consultants Drs. 3 Anderson and Harrison. See generally Dkt. 13. Having found the ALJ committed reversible 4 error, the Court need not consider these arguments.
5 Plaintiff requests the Court remand for an award of benefits. Dkt. 13 at 18–19. Such a 6 remedy is inappropriate where “an evaluation of the record as a whole creates serious doubt that 7 a claimant is, in fact, disabled.” Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). Such 8 doubts are present here, as a previous decision of this Court upheld all challenged substantive 9 elements of a decision adverse to Plaintiff. See AR 2113–19. 10 Plaintiff requests this Court remand for a new hearing before a different ALJ because 11 ALJ Johnson “repeat[ed] verbatim much of the analysis from ALJ’s Erickson’s reversed and 12 vacated decision.” Dkt. 13 at 19. Defendant does not reply to this request. See Dkt. 15. 13 The Court agrees such a measure is warranted. ALJ Erickson’s first decision was issued 14 before he was properly appointed; as Judge Tsuchida found, ALJ Erickson’s second decision was
15 therefore tainted by his first. See AR 2120; Lucia, 138 S. Ct. at 2055 (“Judge Elliot has already 16 both heard Lucia’s case and issued an initial decision on the merits. He cannot be expected to 17 consider the matter as though he had not adjudicated it before.”). “Claimants are entitled to an 18 independent decision issued by a different ALJ if a timely challenged ALJ decision is ‘tainted’ 19 by” an improperly appointed ALJ's decision. Cody v. Kijakazi, 48 F.4th 956, 963 (9th Cir. 2022). 20 “If a new ALJ could rely entirely on—or even give deference to—the prior ALJ's analysis,” such 21 a remedy would not adequately cure the taint of the appointments clause violation. See Jennifer 22 H. v. Comm’r of Soc. Sec., 2023 WL 6571418 at *2 (W.D. Wa. 2023). Because ALJ Johnson’s 23 decision was tainted by ALJ Erickson’s already-tainted decision—as it copied, nearly verbatim,
24 1 significant, material parts of it—this matter must be remanded so that a new ALJ can reconsider 2 it without reliance upon or deference to the prior decisions tainted by the initial appointments 3 clause violation in this case. 4 IV. CONCLUSION
5 For the foregoing reasons, the Court REVERSES and REMANDS the decision pursuant 6 to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings, including a de 7 novo hearing before an ALJ that has not previously considered this matter. 8 Dated this 15th day of July, 2024. 9 A 10 David W. Christel United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24