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Tina D. v. Commissioner of Social Security

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

October 15, 2019

TINA D., Plaintiff,




         Plaintiff Tina D. seeks review of the denial of her application for disability insurance benefits. (See Compl. (Dkt. # 4).) Plaintiff contends that the administrative law judge (“ALJ”) erred in (1) applying the law of the case doctrine, (2) evaluating the medical evidence in the record, (3) finding at step two that Plaintiff did not have a severe impairment of fibromyalgia, (4) evaluating Plaintiff's symptom testimony, (5) evaluating the lay witness statements in the record, and (6) assessing Plaintiff's residual functional capacity (“RFC”). (Pl. Op. Br. (Dkt. # 12) at 2.) As discussed below, the court AFFIRMS the final decision of the Commissioner of Social Security (“Commissioner”) and DISMISSES this case with prejudice.


         A. Procedural History

         This is the second time this case is before the court. Plaintiff filed an application for disability benefits on October 4, 2012, alleging that her disability began on January 9, 2010. (See Admin. Record (“AR”) (Dkt. # 8) at 81, 161-67.) Plaintiff alleged that her disability began when she was in a car accident. (Id. at 42.) Plaintiff's claims were denied on initial review and on reconsideration. (Id. at 80-102.) On January 8, 2013, Plaintiff was in a second car accident, which she alleged worsened her symptoms. (See Id. at 45.)

         On May 1, 2014, ALJ Ruperta Alexis conducted a hearing on Plaintiff's claims. (Id. at 36-79.) On August 26, 2014, ALJ Alexis issued a decision denying Plaintiff benefits. (Id. at 15-30.) The Appeals Council denied review. (Id. at 1-3.)

         On October 11, 2016, Chief U.S. Magistrate Judge Brian Tsuchida issued a decision reversing ALJ Alexis's decision and remanding the matter for further proceedings. (Id. at 782-803.) Judge Tsuchida held that ALJ Alexis did not err in discounting Plaintiff's symptom testimony; in finding that Plaintiff did not have severe impairments of thoracic outlet syndrome and fibromyalgia; in rejecting the opinions of Charles May, M.D., Marla Kaufman, M.D.; in accepting the opinions of William Chalstrom, Ph.D.; and in rejecting the lay witness statements of Cheryl Moore and Melinda Gauyan. (Id. at 783-802.) Judge Tsuchida held that ALJ Alexis did err, however, in finding that Plaintiff's migraine headaches were not a severe impairment; in evaluating the opinions of Nancy Henry-Socha, M.D.; and in rejecting the lay witness statements of Ben D.[1] (Id.) Judge Tsuchida ordered that, on remand, the ALJ “shall reevaluate [Plaintiff's] headaches at step two; Dr. Henry-Socha's medical opinion; the lay witness statement from Ben [D.]; and, as necessary, [Plaintiff's] RFC and the remaining steps of the five-step evaluation process.” (Id. at 803.)

         On remand, ALJ Larry Kennedy conducted a hearing at which Plaintiff and a vocational expert testified. (Id. at 689-751.) On September 24, 2018, ALJ Kennedy issued a decision again denying Plaintiff disability benefits. (Id. at 658-76.) ALJ Kennedy noted that he had been directed on remand to reevaluate Plaintiff's migraine headache symptoms, Dr. Henry-Socha's opinions, and Plaintiff's husband's statements. (Id. at 659.) ALJ Kennedy further noted, however, that Judge Tsuchida had not assigned error to any other portion of ALJ Alexis's decision. (Id.) ALJ Kennedy therefore adopted and incorporated by reference ALJ Alexis's step two findings other than her findings on migraine headaches, rejection of Plaintiff's symptom testimony, rejection of the opinions of Dr. May and Dr. Kaufman, treatment of Dr. Chalstrom's opinion, and rejection of Ms. Moore's and Ms. Gauyan's statements. (Id.)

         B. The ALJ's Decision

         Utilizing the five-step disability evaluation process, 20 C.F.R. § 404.1520, ALJ Kennedy found:

Step one: Plaintiff did not engage in substantial gainful activity during the period from her alleged onset date of January 9, 2010, through her date last insured of September 30, 2015. See 20 C.F.R. §§ 404.1571-76.
Step two: Through the date last insured, Plaintiff had the following severe impairments: Cervical spine degenerative disk disease, depressive disorders (including bipolar disorder) and migraine headaches. See 20 C.F.R. § 404.1520(c).
Step three: Through the date last insured, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526.
RFC: Through the date last insured, Plaintiff could perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with exceptions. Plaintiff was limited to simple and repetitive work activity. She could interact appropriately with the public and coworkers, and could focus and concentrate on simple, repetitive, routine activity.
Step four: Through the date last insured, Plaintiff was unable to perform any past relevant work. See 20 C.F.R. § 404.1565.
Step five: Through the date last insured, considering Plaintiff's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that she could have performed. See 20 C.F.R. §§ 404.1569, 404.1569(a).

(AR at 658-76.) Based on these findings, ALJ Kennedy found that Plaintiff had not been under a disability, as defined in the Social Security Act, from the alleged onset date of January 9, 2010, through the date last insured of September 30, 2015. (Id. at 676.)

         Plaintiff did not file written exceptions and the Appeals Council did not assume jurisdiction of the case. (See generally id.) ALJ Kennedy's decision thus became the Commissioner's final decision. See 20 C.F.R. § 404.984(d). This appeal followed.


         Plaintiff bears the burden of proving she is disabled within the meaning of the Social Security Act. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). Pursuant to 42 U.S.C. § 405(g), the court may only set aside a denial of social security benefits when the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the court is required to examine the entire record, it may neither reweigh the evidence nor substitute its judgment for that of the ALJ. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         A. The ALJ Did Not Err in Applying the Law of the Case Doctrine

         Plaintiff argues that ALJ Kennedy misapplied the law of the case doctrine. (Pl. Op. Br. at 2-4.) “Under the law of the case doctrine, ‘a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case.'” Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)). “The doctrine is concerned primarily with efficiency, and should not be applied when the evidence on remand is substantially different, when the controlling law has changed, or when applying the doctrine would be unjust.” Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016) (citing Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991)).

         Plaintiff fails to articulate with any specificity what evidence ALJ Kennedy misapplied the doctrine to. Instead, Plaintiff appears to argue that ALJ Kennedy was required to reevaluate all of the evidence, including the evidence for which Judge Tsuchida affirmed ALJ Alexis's analysis, because Plaintiff submitted new evidence. However, new evidence in the record does not automatically mean ALJ Kennedy had to reevaluate all of ALJ Alexis's findings. Plaintiff did not explain how the new evidence undermined ALJ Alexis's findings that were affirmed. “Our adversarial system relies on the advocates to inform the discussion and raise the issues to the court. . . . However much we may importune lawyers to be brief and to get to the point, we have never suggested that they skip the substance of their argument in order to do so.” Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003). The court will address application of the law of the case to the specific pieces of evidence for which Plaintiff has alleged error as necessary, but Plaintiff has not shown that, as a general proposition, ALJ Kennedy erred in applying the law of the case doctrine to the issues on which Judge Tsuchida affirmed ALJ Alexis. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (declining to address an issue because the appellant failed to argue it with any specificity in his briefing).

         B. The ALJ Did Not Err in Evaluating the ...

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