Opinion
Case No. 3:18-cv-00902-YY
06-27-2019
MICHAEL P., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION :
Michael P. ("plaintiff"), seeks judicial review of the initial decision by the Commissioner of Social Security ("Commissioner") denying his application for Title XVI Social Security Income ("SSI") under the Social Security Act ("Act"). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Because the Commissioner's decision is not supported by substantial evidence, it should be REVERSED and REMANDED for the immediate calculation and payment of benefits.
BACKGROUND
Plaintiff applied for Title XVI benefits on January 26, 2011, and his application was denied initially and on reconsideration. Tr. 54-75. After a hearing, Administrative Law Judge ("ALJ") R.J. Payne issued an unfavorable decision on February 11, 2013. Tr. 76-93. Plaintiff requested review by the Appeals Council, and on September 21, 2013, the Appeals Council remanded the claim because the ALJ erred in the formulation of the RFC and in concluding that plaintiff was capable of his past relevant work. Tr. 94-98. A remand hearing was held by ALJ Payne on January 8, 2014, but the hearing was set over to obtain vocational testimony. Tr. 770-78. A supplemental hearing was held on July 23, 2014. On September 16, 2014, ALJ Payne issued a second unfavorable decision. Tr. 99-116.
Plaintiff requested review by the Appeals Council, and the Appeals Council again remanded the claim for further proceedings, finding that that the ALJ erred in the step four and step five findings. Tr. 124-27, 218-20. Because ALJ Payne had already issued two erroneous decisions, the Appeals Council remanded the case to a different ALJ. Tr. 129. On September 29, 2016, a hearing was held before ALJ Marie Palachuk. Tr. 818-40. On November 25, 2016, ALJ Palachuk issued an unfavorable decision. Tr. 17-36. Plaintiff again requested review from the Appeals Council. Tr. 276-77. The Appeals Council denied plaintiff's request for review, making ALJ Palachuk's decision the final decision of the Commissioner. Tr. 11-13.
Plaintiff has been diagnosed with adjustment disorder, antisocial personality disorder, major depressive disorder, personality disorder with antisocial and schizoid traits, borderline intellectual functioning, posttraumatic stress disorder, learning disorder, dysthymic disorder, and alcohol dependence in full remission. Tr. 528, 629, 667-68.
FINDINGS
Plaintiff alleges that the ALJ improperly rejected the opinions of non-examining physician Dr. Martin, non-examining physician Dr. Kravitz, examining physician Dr. Pollack, and examining physician Dr. Rosenkrans. Pl. Br. 7-14, ECF #17. The Commissioner concedes that the ALJ erred in rejecting the opinions of Dr. Martin, Dr. Kravitz, and Dr. Pollack. Def. Br. 3, ECF #21. However, the Commissioner argues that the case should be remanded for further proceedings rather than immediate benefits.
The Commissioner does not address plaintiff's argument that the ALJ erred in rejecting the opinion of Dr. Rosenkrans. The Commissioner's failure to substantively respond to plaintiff's arguments could effectively serve as a concession on that issue. See Bolbol v. City of Daly City, 754 F. Supp. 2d 1095, 1115 (N.D. Cal. 2010) ("[P]laintiff fails to address this issue in her opposition brief and apparently concedes that she may not proceed on this claim. Accordingly, the court grants summary judgment in favor of defendants as to this claim."); see also Steger v. Peters, No. 6:16-cv-02093-YY, 2018 WL 3430671, at *2 (D. Or. Jul. 16, 2018) (finding plaintiff conceded dismissal of a claim on the merits by not responding to the motion for summary judgment); Ward v. Nat'l Entm't Collectibles Ass'n, Inc., No. CV11-06358-MMM(CWx), 2012 WL 12885073, at *10 (C.D. Cal. Oct. 29, 2012) (holding that by failing to oppose defendants' motion for summary judgment on damages claim, plaintiff abandoned right to seek such damages). Nevertheless, it is not necessary for the court to reach the issue of Dr. Rosenkrans' opinion in order to resolve this case.
When a court determines the Commissioner erred in some respect in making a decision to deny benefits, the court may affirm, modify, or reverse the Commissioner's decision "with or without remanding the cause for a rehearing." Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting 42 U.S.C. § 405(g)). In determining whether to remand for further proceedings or immediate payment of benefits, the Ninth Circuit employs the "credit-as-true" standard when the following requisites are met: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, (2) the record has been fully developed and further proceedings would serve no useful purpose, and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the plaintiff disabled on remand. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even if all of the requisites are met, however, the court may still remand for further proceedings, "when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled[.]" Id. at 1021.
Here, the first requisite of the Garrison test is met, as the Commissioner concedes the ALJ erroneously assessed the medical opinion evidence. As to the second requisite, the Commissioner argues that because plaintiff does not challenge the ALJ's finding that his symptom testimony was not entirely credible, it "weighs against crediting evidence as true without further fact-finding by the ALJ." Def. Br. 5, ECF #21. The Commissioner further argues that "[a] well-supported credibility finding raises additional factual issues that require resolution by the agency on remand and should prevent an immediate finding of disability." Id. (citing Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015)).
The Commissioner's reliance on Dominguez is misplaced. In Dominguez, the Ninth Circuit assessed whether the district court had abused its discretion in remanding for further proceedings. See Dominguez, 808 F.3d at 408 ("We now apply these principles to determine whether the district court abused its discretion in remanding this case for further proceedings."). Dominguez does not establish a per se rule that courts cannot remand for benefits if the plaintiff fails to challenge the ALJ's credibility finding. Indeed, courts in this district have regularly relied on medical opinion evidence to remand for an award of benefits, even in cases where the ALJ properly discounted the plaintiff's credibility. See, e.g., Ross v. Comm'r Soc. Sec. Admin., No. 6:16-cv-00903-AA, 2018 WL 263639 (D. Or. Jan. 2, 2018) (remanding for an immediate award of benefits despite the ALJ's proper rejection of plaintiff's symptom testimony); Fulsaas v. Berryhill, No. 3:17-cv-00296-PK, 2018 WL 2091357 (D. Or. Mar. 22, 2018) findings and recommendation adopted, 2018 WL 2090475 (D. Or. May 4, 2018) (remanding for an immediate award of benefits despite the fact that plaintiff did not challenge the ALJ's credibility finding); see also Connie T. v. Berryhill, No. 6:17-cv-01967-YY, 2019 WL 2419461 (D. Or. Jun. 10, 2019) (remanding for an immediate award of benefits based on medical opinion evidence without reaching the question of plaintiff's subjective symptom testimony).
Furthermore, in Dominguez, the plaintiff sought to credit as true the opinion of Dr. Bhakta. However, the Ninth Circuit held that a remand for proceedings was proper because there were inconsistencies in Dr. Bhakta's opinion and it conflicted with the opinions of several other doctors. Dominguez, 808 F.3d at 409. While the court also noted the issue of plaintiff's credibility, it is clear that the primary reasons for declining to credit Dr. Bhakta' opinion were the inconsistencies in the opinion itself as well as the conflicting medical opinion evidence.
Here, unlike Dominguez, the Commissioner has not identified any internal inconsistencies in the opinions of Dr. Martin, Dr. Kravitz, or Dr. Pollack. Moreover, unlike Dominguez, the Commissioner has not identified any medical opinions that contradict the opinions of those doctors. Accordingly, Dominguez is inapposite. The crucial question in this case is whether there are inconsistencies or conflicts relating to the medical opinions that plaintiff asks the court to credit. While the Commissioner attempts to place the focus on plaintiff's subjective symptom testimony, she has not identified any inconsistencies or conflicts with the medical opinion evidence relied on by plaintiff. Because the "crucial questions" have been resolved, further administrative proceedings would not serve "a useful purpose." See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (considering whether the "record raises crucial questions as to the extent of [the plaintiff's] impairment given inconsistencies between his testimony and the medical evidence in the record" in resolving the second factor).
As to the third requisite, if the discredited evidence is credited as true, the ALJ would be required to find plaintiff disabled. The VE testified that based on the limitations assessed by Dr. Kravitz, plaintiff would be disabled. Tr. 810-12; see also Def. Br. 4, ECF #21. The VE also testified that plaintiff would be disabled based on the limitations identified by Dr. Pollack. Tr. 670, 816; see also Def. Br. 4, ECF #21. Dr. Pollack assessed that plaintiff would be markedly limited in his ability to maintain a schedule and be punctual within customary tolerances, to complete a normal workday and workweek without interruptions from psychologically based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods. Tr. 670, 816. In sum, if the opinions of Dr. Kravitz and Dr. Pollack are credited, the ALJ would be required to find plaintiff disabled.
Where each of the credit-as-true factors is met, only in "rare instances" does the record as a whole leave "serious doubt as to whether the claimant is actually disabled." Revels v. Berryhill, 874 F.3d 648, 668 n.8 (9th Cir. 2017) (citing Garrison, 759 F.3d at 1021). This case is not one of those "rare instances." Additionally, plaintiff's claim has already been remanded for further proceedings twice by the Appeals Council, which found that the ALJ erred in the first two decisions. Tr. 94-98, 124-27, 218-20. The Commissioner now concedes that the ALJ erred in the third decision. Plaintiff initially applied for benefits in 2011 and has spent the past eight years locked in a perpetual cycle of ALJ errors and remands. The caselaw in this circuit does not support remanding this case to give the Commissioner another opportunity to meet its burden. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) ("Allowing the Commissioner to decide the issue again would create an unfair 'heads we win; tails, let's play again' system of disability benefits adjudication."); Rustamova v. Colvin, 111 F.Supp. 1156, 1165 (D. Or. 2015). Indeed, in Rustamova, Judge Simon remanded for benefits, holding that "allowing the Commissioner a third opportunity to try to meet her burden at step five would create the very 'heads we win; tails, let's play again system of disability benefits adjudication,' that the Ninth Circuit has repeatedly cautioned against." Rustamova, 111 F.Supp. at 1165 (citing Benecke, 379 F.3d at 595). Here, the court would be allowing the Commissioner a fourth opportunity. As such, remand for benefits is the appropriate remedy. Id.
Notably, it appears that in Dominguez there had only been one administrative hearing. See Dominguez v. Colvin, No. CV-2012-01589-PHX-BSB, 2013 WL 5498240 (D. Ariz. Oct. 1, 2013).
RECOMMENDATION
For the reasons discussed above, the decision of the Commissioner should be REVERSED and this matter should be REMANDED for the immediate calculation and payment of benefits.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, July 12, 2019. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement. // // // // //
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED June 27, 2019.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge