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Vicki F. v. Commissioner of Social Security

United States District Court, W.D. Washington, Seattle

July 9, 2019

VICKI F., Plaintiff,


          Marsha J. Pechman United States District Judge.

         Plaintiff contends the ALJ erred by denying her application for Disability Insurance Benefits and seeks remand for an award of benefits. Dkt. 11, 16. The Commissioner concedes that the ALJ erred, but seeks remand for further administrative proceedings. Dkt. 15. As discussed below, the Court REVERSES the Commissioner's final decision and REMANDS the matter for an award of benefits under sentence four of 42 U.S.C. § 405(g).


         Plaintiff is currently 53 years old, has at least a high school education, and has worked as a truck driver and a waitress. Dkt. 7, Admin. Record (AR) 26. Plaintiff applied for benefits in June 2013, alleging disability as of March 2013. AR 104. Plaintiff's application was denied initially, on reconsideration, and by a November 2014 ALJ decision. AR 103, 116, 133-45. Plaintiff appealed the ALJ's decision and filed a new application for benefits. AR 246, 153. Plaintiff's new application was granted, with an established onset date of December 31, 2015. AR 181. However, the Appeals Council vacated both the favorable decision and the ALJ's decision, consolidated both claims, and remanded them to the ALJ. AR 185-86. After the ALJ conducted a hearing in May 2017, the ALJ issued a decision finding Plaintiff had the severe impairments of diabetic peripheral neuropathy, degenerative disc disease, affective disorder, and obesity, but was not disabled. AR 37, 15-28.


         The parties agree that the ALJ erred by rejecting the medical opinions of Plaintiff's treating physician Ellen Kim, M.D., and nonexamining physician Drew Stevick, M.D., and by rejecting Plaintiff's testimony. See Dkt. 11, 15. Plaintiff requests remand for an award of benefits.

         In general, the Court has “discretion to remand for further proceedings or to award benefits.” Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). The Court may remand for further proceedings if enhancement of the record would be useful. See Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). The Court may remand for benefits where (1) the record is fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ fails to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). The Court has flexibility, however, “when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social

         A. The Record is Fully Developed

         The Commissioner argues that the record is not fully developed because of an “unresolved evidentiary issue” involving the December 2015 disability finding and because Plaintiff argued in her opening brief that the ALJ erred by failing to request certain records and to consider chronic pain syndrome. Dkt. 15 at 3-5.

         The “unresolved evidentiary issue” is based on the Commissioner's misapprehension of the record. The Commissioner erroneously asserts that state agency physician Dr. Stevick opined Plaintiff could perform “light work.” Dkt. 15 at 4. In fact, Dr. Stevick's opinions states that Plaintiff could perform “SEDENTARY” work. AR 180. This was based on his opinion that Plaintiff could stand and/or walk for only “4 hours” total per day, while “the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.” AR 176; Soc. Sec. Ruling 83-10, 1983 WL 31251 (1983). Because of Plaintiff's age, education, and work experience, restricting her to a sedentary exertional level mandates a determination of disability under the Medical-Vocational Guidelines. 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 201.14. The Commissioner states that “[i]t is not entirely clear who made” the disability finding. Dkt. 15 at 4. Other than apparently baseless speculation that someone in the Social Security Administration erroneously entered some data somewhere, the Commissioner offers no reason why the agency's disability determination is incorrect. This is not an adequate basis for the Court to conclude that the record is not fully developed.

         The Commissioner relies on Treichler to argue that other outstanding evidentiary issues preclude remand for benefits. Dkt. 15 at 3 (citing Treichler v. Comm'r. of Soc. Sec. Admin., 775 F.3d 1090, 1099-1101 (9th Cir. 2014)). In Treichler, there were “significant factual conflicts in 1104. Here, there are no significant factual conflicts.

         Because “the ALJ did not evaluate chronic pain syndrome, ” the Commissioner argues that “this impairment should be explicitly addressed on remand.” Dkt. 15 at 3. The fact that Plaintiff could be found disabled on the additional ground of chronic pain syndrome does not make evidence of chronic pain relevant to finding her disabled on the grounds of neuropathy and degenerative disc disease. The Commissioner does not argue that adding another severe impairment will render Plaintiff any less impaired.

         Finally, the Commissioner argues that because “Plaintiff argues the ALJ failed to develop the record because the ALJ did not request podiatry records regarding her neuropathy and foot issues, ” further proceedings would be useful. Dkt. 15 at 4-5 (citing Dkt. 11 at 16). Plaintiff initially argued in her opening brief that the ALJ erred by rejecting Dr. Kim's findings without requesting notes from a podiatrist that Dr. Kim repeatedly mentioned had treated Plaintiff. Dkt. 11 at 16. In the response brief, the Commissioner does not argue that the podiatrist's notes might justify discounting Dr. Kim's opinions, but in fact concedes the ALJ erred by rejecting Dr. Kim's opinions. Dkt. 15. The lack of the podiatrist's notes do not indicate the type of “significant factual conflicts in the record” that require further proceedings. Treichler, 775 F.3d at 1104.

         B. The ALJ Improperly Discredited Plaintiff's Testimony ...

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