United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING DENIAL OF BENEFITS
L. ROBART UNITED STATES DISTRICT JUDGE
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
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.)
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.)
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. (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.)
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.)
The ALJ's Decision
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.
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),
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
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.)
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.
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.
The ALJ Did Not Err in Applying the Law of the Case
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.
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).
The ALJ Did Not Err in Evaluating the ...