Wilson v. Commissioner of Social Security, No. 1:2018cv03126 - Document 18 (E.D. Wash. 2019)
Court Description: ORDER GRANTING 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT INTER ALIA; Denying 15 Defendant's Motion for Summary Judgment. Pursuant to sentence four of 42 U.S.C. §405(g), the Commissioner's decision is REVERSED and REMANDED for further administrative proceedings consistent with this order. FILE CLOSED. Signed by Senior Judge Lonny R. Suko. (AN, Courtroom Deputy)
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Wilson v. Commissioner of Social Security Doc. 18 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 11, 2019 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 CARRIE W., Plaintiff, 8 vs. 9 10 11 12 13 14 15 COMMISSIONER OF SOCIAL SECURITY, Defendant. ______________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) SEAN F. MCAVOY, CLERK No. 1:18-CV-3126-LRS ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, INTER ALIA BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment (ECF No. 14) and the Defendant's Motion For Summary Judgment (ECF No. 15). 16 JURISDICTION 17 18 Carrie W., Plaintiff, applied for Title II Social Security Disability Insurance 19 benefits (SSDI) on July 26, 2011. 20 reconsideration. Plaintiff timely requested a hearing which was held on November 21 6, 2013, before Administrative Law Judge (ALJ) M.J. Adams. On January 21, 2014, 22 the ALJ issued a decision finding the Plaintiff not disabled. The Appeals Council 23 denied a request for review of the ALJ’s decision and Plaintiff sought judicial review. 24 On June 13, 2016, U.S. Magistrate Judge John T. Rodgers in 1:15-CV-3134-JTR 25 granted a stipulated motion to remand for further administrative proceedings (ECF 26 No. 27). 27 The application was denied initially and on A new administrative hearing was held on October 4, 2017. Plaintiff testified 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 at this hearing, as did Vocational Expert (VE) Beckie Hill. On May 11, 2018, ALJ 2 Adams issued a decision finding the Plaintiff not disabled. The Appeals Council 3 denied a request for review of the ALJ’s decision, making that decision the 4 Commissioner’s final decision subject to judicial review. The Commissioner’s final 5 decision is appealable to district court pursuant to 42 U.S.C. §405(g). 6 STATEMENT OF FACTS 7 8 The facts have been presented in the administrative transcript, the ALJ's 9 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. 10 Plaintiff alleges disability beginning September 9, 2010, on which date she was 43 11 years old, 12 Plaintiff’s date last insured for Title II SSDI benefits is December 31, 2017. Plaintiff 13 has past relevant work experience as a gambling dealer and dealer manager. and ending August 2, 2014, on which date she was 47 years old. 14 15 STANDARD OF REVIEW 16 "The [Commissioner's] determination that a claimant is not disabled will be 17 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 18 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 19 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 20 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 21 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 22 1988). "It means such relevant evidence as a reasonable mind might accept as 23 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 24 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 25 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 26 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 27 On review, the court considers the record as a whole, not just the evidence supporting 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 2 1 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 2 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). It is the role of the trier of fact, not this court to resolve conflicts in evidence. 3 4 Richardson, 402 U.S. at 400. If evidence supports more than one rational 5 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 6 F.2d 577, 579 (9th Cir. 1984). 7 A decision supported by substantial evidence will still be set aside if the proper 8 legal standards were not applied in weighing the evidence and making the decision. 9 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 10 1987). 11 ISSUES 12 13 Plaintiff argues: 1) the ALJ erred in failing to find Plaintiff has severe 14 medically determinable fibromyalgia and mental health impairments; 2) the ALJ 15 failed to offer specific, clear and convincing reasons for discounting Plaintiff’s 16 testimony regarding her symptom and limitations; and 3) the ALJ improperly weighed 17 the medical evidence. 18 19 20 DISCUSSION SEQUENTIAL EVALUATION PROCESS 21 The Social Security Act defines "disability" as the "inability to engage in any 22 substantial gainful activity by reason of any medically determinable physical or 23 mental impairment which can be expected to result in death or which has lasted or can 24 be expected to last for a continuous period of not less than twelve months." 42 25 U.S.C. § 423(d)(1)(A). The Act also provides that a claimant shall be determined to 26 be under a disability only if her impairments are of such severity that the claimant is 27 not only unable to do her previous work but cannot, considering her age, education 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 3 1 and work experiences, engage in any other substantial gainful work which exists in 2 the national economy. Id. 3 The Commissioner has established a five-step sequential evaluation process for 4 determining whether a person is disabled. 20 C.F.R. § 404.1520; Bowen v. Yuckert, 5 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines if she is engaged 6 in substantial gainful activities. 7 404.1520(a)(4)(i). If she is not, the decision-maker proceeds to step two, which 8 determines whether the claimant has a medically severe impairment or combination 9 of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant does not have a 10 severe impairment or combination of impairments, the disability claim is denied. If 11 the impairment is severe, the evaluation proceeds to the third step, which compares 12 the claimant's impairment with a number of listed impairments acknowledged by the 13 Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. 14 § 404.1520(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 15 equals one of the listed impairments, the claimant is conclusively presumed to be 16 disabled. If the impairment is not one conclusively presumed to be disabling, the 17 evaluation proceeds to the fourth step which determines whether the impairment 18 prevents the claimant from performing work she has performed in the past. If the 19 claimant is able to perform her previous work, she is not disabled. 20 C.F.R. § 20 404.1520(a)(4)(iv). If the claimant cannot perform this work, the fifth and final step 21 in the process determines whether she is able to perform other work in the national 22 economy in view of her age, education and work experience. 23 404.1520(a)(4)(v). If she is, benefits are denied. 20 C.F.R. § 20 C.F.R. § 24 The initial burden of proof rests upon the claimant to establish a prima facie 25 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 26 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 27 mental impairment prevents her from engaging in her previous occupation. The 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 4 1 burden then shifts to the Commissioner to show (1) that the claimant can perform 2 other substantial gainful activity and (2) that a "significant number of jobs exist in the 3 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 4 1498 (9th Cir. 1984). 5 6 ALJ'S FINDINGS 7 The ALJ found the following: 1) during the alleged closed period of disability, 8 Plaintiff had “severe” medical impairments, those being spinal impairment, thyroid 9 disorder, hypertension and obesity; 2) Plaintiff’s impairments did not meet or equal 10 any of the impairments listed in 20 C.F.R. § 404 Subpart P, App. 1; 3) Plaintiff had 11 the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. 12 § 404.1567(b), except she needed to avoid concentrated exposure to extreme cold and 13 hazards such as working around dangerous moving machinery or unprotected heights; 14 4) Plaintiff was capable of performing her past relevant work and alternatively, there 15 were other jobs existing in significant numbers in the national economy which the 16 Plaintiff was capable of performing, including fast food worker, cashier II, and 17 conveyor line bakery worker. Accordingly, the ALJ concluded the Plaintiff was not 18 disabled during the alleged closed period of disability. 19 20 SEVERE IMPAIRMENTS 21 A “severe” impairment is one which significantly limits physical or mental 22 ability to do basic work-related activities. 20 C.F.R. § 404.1520(c). It must result 23 from anatomical, physiological, or psychological abnormalities which can be shown 24 by medically acceptable clinical and laboratory diagnostic techniques. It must be 25 established by medical evidence consisting of signs, symptoms, and laboratory 26 findings, not just the claimant's statement of symptoms. 20 C.F.R. § 404.1508. 27 Step two is a de minimis inquiry designed to weed out non-meritorious claims 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 5 1 at an early stage in the sequential evaluation process. Smolen v. Chater, 80 F.3d 2 1273, 1290 (9th Cir. 1996), citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987) 3 ("[S]tep two inquiry is a de minimis screening device to dispose of groundless 4 claims"). "[O]nly those claimants with slight abnormalities that do not significantly 5 limit any basic work activity can be denied benefits" at step two. Bowen, 482 U.S. 6 at 158 (concurring opinion). "Basic work activities" are the abilities and aptitudes to 7 do most jobs, including: 1) physical functions such as walking, standing, sitting, 8 lifting, pushing, pulling, reaching, carrying, or handling; 2) capacities for seeing, 9 hearing, and speaking; 3) understanding, carrying out, and remembering simple 10 instructions; 4) use of judgment; 5) responding appropriately to supervision, co- 11 workers and usual work situations; and 6) dealing with changes in a routine work 12 setting. 20 C.F.R. § 404.1521(b). 13 The Commissioner has stated that “[i]f an adjudicator is unable to determine 14 clearly the effect of an impairment or combination of impairments on the individual’s 15 ability to do basic work activities, the sequential evaluation should not end with the 16 not severe evaluation step.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005), 17 citing S.S.R. No. 85-28 (1985). An ALJ may find that a claimant lacks a medically 18 severe impairment or combination of impairments only when his conclusion is 19 “clearly established by medical evidence.” Id. 20 21 A. Fibromyalgia 22 While the ALJ found Plaintiff had mental health impairments which were 23 medically determinable, although not severe, the ALJ found Plaintiff did not suffer 24 from medically determinable fibromyalgia. According to the ALJ: 25 26 27 In March 2012, [Plaintiff] told her pain clinic that she had now been diagnosed with fibromyalgia. No such diagnosis exists in the evidentiary record, which does not contain any adequate documentation of positive fibromyalgia points or any consultation by a rheumatologist. In 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 6 July 2012, the claimant was nonetheless prescribed Lyrica for fibromyalgia. She denied having pain during medical care in May 2013. An examination in April [2014] noted fibromyalgia tender points, but did not quantify these points or otherwise confirmed that they [were] positive in all four quadrants of the claimant’s body. Furthermore, the claimant had no other reports of concurrent symptoms at this time that would amount to a diagnosis of fibromyalgia as required under the diagnostic criteria established by the American College of Rheumatology in 1990 or 2010. Notably, the claimant was gainfully employed for several years after the alleged onset of fibromyalgia in 2007, including after her alleged period [of] disability between September 2010 and August 2014. Her work with a casino appears to have ended in mid-2010 and again in September 2016 for reasons unrelated to her physical functioning. 1 2 3 4 5 6 7 8 9 10 (AR at pp. 603-04).1 11 Plaintiff was seen by Vern D. Commet, ARNP (Advanced Registered Practice 12 Nurse), at Water’s Edge Pain Clinic in February 2012, at the request of Plaintiff’s 13 treating provider, Rex Quaempts, M.D.. Plaintiff told Commet she had been told she 14 may have fibromyalgia. 15 treatment of fibromyalgia. (AR at p. 476). On examination, Commet observed the 16 following: Palpation of the sacrum is exquisitely painful bilaterally. She has tenderness as well with palpation of the trochanteric bursa bilaterally. She has palpatory tenderness of the medial fat pads of the knee bilaterally. She has positive palpation of the sternomastoid muscle anteriorly bilaterally, the suboccipitals bilaterally, the mid upper trapezius bilaterally, and the origin of the supraspinatus bilaterally. 17 18 19 20 21 He noted she was currently taking no medication for (AR at p. 477). 22 This appears to show at least 11 positive tender points on each side of the body, 23 both above and below the waist, which is one of the three 1990 America College of 24 Rheumatology (ACR) criteria set forth in Social Security Ruling (SSR) 12-2p for 25 determining whether fibromyalgia is a medically determinable impairment. 26 27 1 Citations omitted. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 7 1 Therefore, it is insignificant that Plaintiff’s April 2014 musculoskeletal examination 2 at the pain clinic merely noted the fibromyalgia tender points without quantifying 3 them or confirming they were positive in all four quadrants of the body. (AR at p. 4 1136). While Commet did not specifically diagnose fibromyalgia in conjunction 5 with his February 2012 examination, he effectively accepted it as a diagnosis, noting 6 Plaintiff might “benefit from neuroleptics from a chronic pain standpoint and 7 fibromyalgia,” that he would recommend a rheumatologic workup, and that she might 8 do 9 https://www.webmd.com/fibromyalgia/guide/lyrica-for-fibromyalgia-treatment#1. better on Lyrica, a drug often prescribed for fibromyalgia pain. 10 (AR at p. 477). In conjunction with Plaintiff’s July 2012 examination, Commet left 11 no doubt he believed Plaintiff suffered from fibromyalgia, noting that Dr. Quaempts 12 had placed her on Lyrica. (AR at p. 471).2 Dr. Quaempts, an “acceptable medical 13 source” as a licensed physician3 , concluded Plaintiff had fibromyalgia based on what 14 ARNP Commet reported. (AR at pp. 563-64).4 15 The Commissioner concedes the ALJ found there was evidence Plaintiff 16 suffered from “widespread pain,” the first of the 1990 ACR criteria, but contends the 17 18 2 Commet never wavered from that assessment in his subsequent 19 20 21 examinations of the Plaintiff. (AR at pp. 461 and 469). 3 For claims filed prior to March 27, 2017, ARNPs were not considered 22 23 24 “acceptable medical sources” to establish the existence of an impairment. 20 C.F.R. §404.1513(d)(1). 25 26 27 4 As far back as September 2011, Dr. Quaempts thought it “most likely” that Plaintiff had fibromyalgia. (AR at p. 452). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 8 1 third of the criteria was not met in there was no evidence of exclusion of other 2 disorders that could cause the symptoms or signs of fibromyalgia. The ALJ did not 3 cite this as a reason for concluding Plaintiff did not have medically determinable 4 fibromyalgia and in any event, the evidence reasonably indicates that Dr. Quaempts 5 referred Plaintiff to the pain clinic to confirm whether Plaintiff had fibromyalgia and 6 to rule out other reasons for Plaintiff’s widespread pain. That is precisely what 7 happened. 5 8 Plaintiff’s fibromyalgia is established by medical evidence consisting of signs, 9 symptoms, and laboratory findings, not just the claimant's statement of symptoms. 10 There is not medical evidence “clearly” establishing otherwise. The ALJ erred in 11 finding Plaintiff’s fibromyalgia is not a medically determinable impairment. 12 essentially relied on his own opinion whether Plaintiff’s fibromyalgia was medically 13 determinable without seeking a consultative rheumatologic examination of Plaintiff 14 or the opinion of an independent medical expert.6 He 15 Because the ALJ found Plaintiff’s fibromyalgia to not be a medically 16 determinable impairment, he could not have considered its effects on Plaintiff’s RFC 17 because he was only obligated to consider the effects of medically determinable 18 severe and non-severe impairments. SSR 12-2p, Paragraph VI. D., citing SSR 96-8p 19 (2012 WL3104869 at *6). Likewise, there is not medical evidence “clearly” 20 21 5 Because the 1990 criteria were met, it is unnecessary to address whether 22 23 24 the 2010 ACR Preliminary Diagnostic Criteria, as set forth in SSR 12-2p, were also met. 25 26 27 6 None of the state agency physicians who reviewed the record offered any opinion about fibromyalgia. 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 9 1 establishing that Plaintiff’s fibromyalgia is non-severe, that it is a “slight 2 abnormality” that does not significantly limit any basic work activity. Plaintiff’s 3 treating doctor, Dr. Quaempts, clearly believed the condition significantly affected 4 Plaintiff’s ability to perform basic work activity during the relevant period of time. 5 (AR at pp. 563-64). That Plaintiff may have already been suffering the effects of 6 fibromyalgia while she was working and before the alleged onset date of her closed 7 period of disability (September 9, 2010) is not medical evidence establishing that she 8 did not have severe, medically determinable fibromyalgia during her alleged closed 9 period of disability. 10 On remand, the Commissioner will consider whether Plaintiff’s fibromyalgia 11 causes any exertional and non-exertional limitations beyond those already found, or 12 exacerbates any of limitations already found, which may lessen Plaintiff’s physical 13 RFC. 14 15 B. Mental Health Impairments 16 In his decision dated May 11, 2018, the ALJ found Plaintiff’s mental health 17 18 19 20 21 22 impairments were not “severe,” reasoning as follows: Contrary to her allegations of psychological disability, the claimant’s records (along with her testimony) indicate that her mental health issues were ongoing for years prior to her departure from employment in mid-2010. Her examination findings and treatment records do not document any significant worsening of her depression or anxiety following her alleged onset date. (AR at p. 604). 23 In his decision dated January 21, 2014, the same ALJ, based on his review of 24 much of the same evidence (e.g., November 16, 2011 consultative psychological 25 examination of Jay M. Toews, Ed. D., AR at pp. 413-16), found Plaintiff’s “severe” 26 impairments included depression, post-traumatic stress disorder, and a history of 27 substance abuse. (AR at p. 21). The ALJ found that Plaintiff had a mild restriction 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 10 1 concerning activities of daily living, mild difficulties in social functioning, moderate 2 difficulties with regard to concentration, persistence or pace, and had experienced one 3 to two episodes of decompensation of extended duration. (AR at pp. 22-23). He 4 noted that in May 2013, the Plaintiff attempted suicide with prescription medications 5 and was hospitalized. 6 unemployed and having marital and financial problems. (AR at p. 23). The ALJ 7 accepted the assessment of state agency physician, Jerry Gardner, Ph.D., who 8 reported on February 22, 2012, that Plaintiff’s mental impairments had resulted in 9 these functional limitations, with the exception of the episode of decompensation 10 He determined the Plaintiff was depressed from being found by the ALJ. (AR at p. 23; pp. 79-80). 11 In his May 11, 2018 decision, the ALJ reversed himself, stating the Plaintiff’s 12 “suicide attempt in mid-2013 appears to have been an impulsive act of anger rather 13 than an expression of severe depression.” (AR at p. 606). This time around, he gave 14 “some weight” to Dr. Gardner’s assessment, noting Dr. Gardner opined that Plaintiff 15 “had no limitations in her understanding, memory, or social interaction” and that 16 Plaintiff “was capable of sustaining simple work activity and could tolerate simple 17 adjustments to change.” (AR at p. 609; pp. 83-84). 18 In his January 21, 2014 decision, the ALJ found that Plaintiff’s mental RFC 19 included understanding, remembering and carrying out simple instructions required 20 of unskilled work; that she could make judgments on simple work-related decisions; 21 that she could respond appropriately to supervision and co-workers; that she could 22 deal with occasional changes in the work environment; and although she had no 23 difficulty dealing with the public, she could not perform in a high pressure 24 environment such as a casino. (AR at p. 24). 25 In his May 11, 2018 decision, the ALJ found Plaintiff’s “reportedly 26 longstanding psychological impairments were concurrent with gainful employment 27 in semi-skilled occupations [gambling dealer and dealer manager] immediate[ly] 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 11 1 before and immediately after her alleged period of disability” and that her treatment 2 records indicated these impairments were adequately controlled with treatment started 3 just a few months before this period, despite some concurrent alcohol abuse. (AR at 4 pp. 609-10). The ALJ concluded Plaintiff had “no psychological limitations during 5 the relevant period,” but that “[e]ven if limited to unskilled work with simple 6 instructions, simple work-related decision[s], and occasional work setting changes, 7 [Plaintiff] could perform work in the national economy according to vocational expert 8 testimony.” (AR at p. 610). The ALJ noted that in November 2013, he asked the VE 9 who testified at that hearing (Ann M. Jones) whether jobs existed in the national 10 economy for an individual with Plaintiff’s age, education, work experience, and 11 residual functional capacity, “with some additional psychological limitations.” The 12 VE testified such an individual would be able to perform the requirements of 13 representative occupations such as fast food worker, cashier II, and conveyor line 14 bakery worker. (AR at p. 618). 15 The ALJ cannot have it both ways: either the Plaintiff had psychological 16 limitations during the alleged closed period of disability or she did not. There is not 17 substantial evidence in the record supporting the ALJ’s determination that Plaintiff 18 had “no psychological limitations” during the relevant period and indeed, this is 19 established by the ALJ’s reliance in his May 11, 2018 decision on the VE’s testimony 20 from the November 2013 hearing which was based on psychological limitations 21 arising from “severe” mental impairments found by the ALJ in his January 21, 2014 22 decision. The ALJ erred in finding Plaintiff did not suffer from “severe” mental 23 impairments during the alleged closed period of disability. Medical evidence does 24 not “clearly” establish otherwise. 25 26 27 REMAND Social security cases are subject to the ordinary remand rule which is that when 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 12 1 “the record before the agency does not support the agency action, . . . the agency has 2 not considered all the relevant factors, or . . . the reviewing court simply cannot 3 evaluate the challenged agency action on the basis of the record before it, the proper 4 course, except in rare circumstances, is to remand to the agency for additional 5 investigation or explanation.” Treichler v. Commissioner of Social Security 6 Administration, 775 F.3d 1090, 1099 (9th Cir. 2014), quoting Fla. Power & Light Co. 7 v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598 (1985). 8 In “rare circumstances,” the court may reverse and remand for an immediate 9 award of benefits instead of for additional proceedings. Id., citing 42 U.S.C. §405(g). 10 Three elements must be satisfied in order to justify such a remand. The first element 11 is whether the “ALJ has failed to provide legally sufficient reasons for rejecting 12 evidence, whether claimant testimony or medical opinion.” Id. at 1100, quoting 13 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). If the ALJ has so erred, the 14 second element is whether there are “outstanding issues that must be resolved before 15 a determination of disability can be made,” and whether further administrative 16 proceedings would be useful. Id. at 1101, quoting Moisa v. Barnhart, 367 F.3d 882, 17 887 (9th Cir. 2004). “Where there is conflicting evidence, and not all essential factual 18 issues have been resolved, a remand for an award of benefits is inappropriate.” Id. 19 Finally, if it is concluded that no outstanding issues remain and further proceedings 20 would not be useful, the court may find the relevant testimony credible as a matter of 21 law and then determine whether the record, taken as a whole, leaves “not the slightest 22 uncertainty as to the outcome of [the] proceedings.” Id., quoting NLRB v. Wyman- 23 Gordon Co., 394 U.S. 759, 766 n. 6 (1969). Where all three elements are satisfied- 24 ALJ has failed to provide legally sufficient reasons for rejecting evidence, there are 25 no outstanding issues that must be resolved, and there is no question the claimant is 26 disabled- the court has discretion to depart from the ordinary remand rule and remand 27 for an immediate award of benefits. Id. But even when those “rare circumstances” 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 13 1 exist, “[t]he decision whether to remand a case for additional evidence or simply to 2 award benefits is in [the court’s] discretion.” 3 Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). Id. at 1102, quoting Swenson v. 4 The ALJ erred in failing to find that Plaintiff suffered from “severe” medically- 5 determinable fibromyalgia and “severe” mental impairments during the alleged closed 6 period of disability. 7 resolved, in particular the impact of Plaintiff’s fibromyalgia upon her physical RFC. 8 And although the existence of “severe” mental impairments, by the ALJ’s own 9 rationale, precludes Plaintiff from performing her past relevant work, this court makes 10 no finding at this time whether substantial evidence supports the ALJ’s conclusion 11 that Plaintiff is capable of performing other unskilled work in the national economy. 12 The Plaintiff’s testimony, and the testimony of her lay witnesses, needs to be 13 reassessed, and the medical opinions re-evaluated in light of the fact that Plaintiff 14 suffered from “severe” medically determinable fibromyalgia and “severe” mental 15 health impairments during the alleged closed period of disability. There are, however, outstanding issues which remain to be 16 The court recognizes this matter has already been remanded once for further 17 proceedings before the same ALJ, but that was pursuant to stipulated remand which 18 did not identify any particular errors on the part of the ALJ and provided only very 19 general guidance regarding what was to occur on remand. 20 conflicting evidence regarding the extent of Plaintiff’s physical and mental limitations 21 and how they impact her ability to perform other work in the national economy, and 22 not all factual issues have been resolved, the court will order a remand for further 23 proceedings consistent with this opinion. Because there is 24 The court recommends the Commissioner assign a different ALJ to hear the 25 case on remand since the same ALJ has already reviewed the evidence twice. See 26 Harris v. Barnhart, 219 F.Supp.2d 966, 977 and n. 5 (E.D. Wis. 2002), citing Rohan 27 v. Chater, 98 F.3d 966, 971 (7th Cir. 1996)(recommending assignment to different 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 14 1 ALJ on remand where, among other things, ALJ relied on his own unsupported 2 medical opinions about plaintiff’s conditions). 3 CONCLUSION 4 5 Plaintiff’s Motion For Summary Judgment (ECF No. 14) is GRANTED and 6 Defendant’s Motion For Summary Judgment (ECF No. 15) is DENIED. Pursuant to 7 sentence four of 42 U.S.C. §405(g), the Commissioner's decision is REVERSED and 8 REMANDED for further administrative proceedings consistent with this order. 9 IT IS SO ORDERED. The District Executive shall enter judgment 10 accordingly, forward copies of the judgment and this order to counsel of record, and 11 close the case. 12 DATED this 11th day of March, 2019. 13 14 15 16 s/Lonny R. Suko LONNY R. SUKO Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 15
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