United States District Court, D. Arizona
ORDER
DOMINIC W, LANZA, UNITED STATES DISTRICT JUDGE
Pending
before the Court is Plaintiff's “Motion to Strike
Defendant's ‘Motion for Remand Pursuant to Sentence
Four of 42 U.S.C. § 405(g)'” (Doc. 26), which
“requests that this Court strike the Commissioner's
present motion, and either order that the Commissioner file a
proper response brief according to this Court's rule or
order that the Commissioner's motion be deemed the
Commissioner's responding brief, and allow Clark to file
a reply brief within 15 days of this Court's order, at
which time this matter will be submitted for this Court's
decision.” (Doc. 26 at 4.) For the following reasons,
Plaintiff's motion will be granted.
On May
1, 2019, Plaintiff filed the complaint. (Doc. 1.) It alleges
that “[t]he ALJ committed materially harmful errors in
the decision to deny benefits, adopted as the
Commissioner's final decision, ” including but not
limited to (1) “rejecting Clark's symptom testimony
in the absence of specific, clear, and convincing reasons,
” (2) “rejecting assessments from Clark's
treating physician, Maame A. Dankwah-Quansah, M.D., in the
absence of specific and legitimate reasons, supported by
substantial evidence in the record, ” (3)
“according ‘substantial weight' to the
opinions of a one-time agency examiner, Luke Rond, D.O.,
Medico Physician Services, and unnamed physicians who
reviewed available records when the initial and
reconsideration denials were issued, without recognizing
legal standards that afford primacy to treating physician
medical opinion evidence, ” and (4) “failing to
consider Clark's record as a whole, e.g.,
[failing] to even mention [] assessment from Clark's
treating pain management specialist, Mary Janikowski,
D.O.” (Id. at 3-5.)
That
same day, the Court issued a Social Security Scheduling
Order, which ordered the parties to “fully comply with
LRCiv 16.1 in its entirety” and to “strictly
comply” with certain requirements-namely that Plaintiff
must file an opening brief within 60 days after the answer is
filed, that the Commissioner must file an answering brief
within 30 days after service of Plaintiff's opening
brief, and that Plaintiff may file a reply brief within 15
days after service of the Commissioner's answering brief.
(Doc. 6 at 1-2.) The order specified, in bold font, that the
Commissioner's answering brief must
“respond specifically to each issue raised by
Plaintiff.” (Id. at 2.) The order
also included a warning: “[I]f either party fails to
timely file a brief in full compliance with this Order, the
Court may strike the non-complying brief, dismiss the case,
or remand to the agency, as appropriate.” (Id.
at 3.)
On July
12, 2019, the Commissioner filed an answer. (Doc. 10.) The
Commissioner admitted that the agency issued a final decision
regarding Plaintiff's application for benefits, that
Plaintiff exhausted the mandatory administrative remedies,
and that Plaintiff timely brought this action. (Id.
at 1-2.) Otherwise, the Commissioner denied all factual
allegations in the complaint. (Id. at 2.)
On
October 25, 2019, Plaintiff filed her opening
brief.[1] (Doc. 22.) It advanced three arguments,
covering the four issues raised in her complaint (combining
two of those issues into one argument):
1. The vocational expert testified that limitations assessed
by the treating neurologist, Dr. Dankwah-Quansah, would make
it impossible to perform any sustained work: The ALJ
committed materially harmful error by rejecting Dr.
Dankwah-Quansah's assessment, instead assigning
“substantial weight” to the opinion of a one-time
state agency examiner, Luke Rond, D.O., Medico Physician
Services, whose evaluation failed standards for consultative
examinations, and to opinions of unnamed state agency
physicians who neither examined Clark nor reviewed a complete
record. (Doc. 22 at 14)
2. Limitations congruent with Clark's symptom testimony
would preclude the ability to perform competitive work: The
ALJ committed materially harmful error by rejecting
Clark's symptom testimony in the absence of specific,
clear, and convincing reasons supported by substantial
evidence in this record as a whole. (Doc. 22 at 22-23.)
3. The vocational expert testified that limitations assessed
by the treating pain management specialist, Dr. Janikowski,
would make it impossible to perform any sustained work: The
ALJ committed materially harmful error by ignoring, and
thereby rejecting, Dr. Janikowski's assessment. (Doc. 22
at 27.)
Plaintiff
also argued in her brief that the Court should apply the
“credit-as-true” rule, which would result in
remand of Plaintiff's case for payment of benefits rather
than for further proceedings: “Limitations congruent
with assessments from Clark's treating physicians, and
Clark's reported symptoms, are inconsistent with the
ability to perform any sustained work. That evidence, when
credited, should be the basis for this Court's
consideration of exercise of its discretion to remand
Clark's case without rehearing. 42 U.S.C. §
405(g).” (Doc. 22 at 28.)
On
November 25, 2019, the Commissioner filed a “Motion for
Remand Pursuant to Sentence Four of 42 U.S.C. §
405(g).” (Doc. 23.) The Commissioner stated that
“[a]fter reviewing Plaintiff's opening brief and
the certified administrative record, the Commissioner
notified Plaintiff's counsel that the agency would agree
to voluntarily remand the instant case for further
administrative proceedings, ” but “although the
parties engaged in settlement discussions, ” ultimately
the parties did not reach an agreement. (Id. at 3.)
The Commissioner conceded that “the ALJ erred by not
evaluating medical opinion evidence from Mary Janikowski,
D.O., who was one of Plaintiff's treatment
providers.” (Id.) Notably, the Commissioner
did not address Plaintiff's contention that “[t]he
ALJ committed materially harmful error by rejecting Dr.
Dankwah-Quansah's assessment, instead assigning
‘substantial weight' to the opinion of a one-time
state agency examiner, Luke Rond, D.O., Medico Physician
Services, whose evaluation failed standards for consultative
examinations, and to opinions of unnamed state agency
physicians who neither examined Clark nor reviewed a complete
record.” (Doc. 22 at 14.) To the contrary, the
Commissioner uncritically adopted and relied on the opinions
of Dr. Rond and another state agency reviewing physician,
essentially repeating the complained-of error without
contesting it. (See Doc. 23 at 7.) The Commissioner
cited some of Dr. Dankwah-Quansah's medical records in
advancing the argument that Plaintiff had demonstrated some
“evidence of improvement” (id. at 12-13)
but did not address Plaintiff's nine-page argument
concerning why the ALJ's rejection of Dr.
Dankwah-Quansah's opinions was erroneous.
On
December 18, 2019, Plaintiff filed a “Motion to Strike
Defendant's ‘Motion for Remand Pursuant to Sentence
Four of 42 U.S.C. § 405(g).'” (Doc. 26.)
Plaintiff argues that the Commissioner's “new
tactic” of filing motions to remand in lieu of
answering briefs “goes a pleading too far, ” in
that it circumvents the local rules providing that the
Commissioner must file an answering brief “and unfairly
attempts to provide the Commissioner with an extra
opportunity to argue the agency's case” by
purporting to invite a response to the “motion, ”
with an added chance for the Commissioner to file a
“reply” in support of its “motion.”
(Id. at 3.)
The
Court agrees with Plaintiff that this approach violates LRCiv
16.1(a). Moreover, it violates the Court's scheduling
order. (Doc. 6 at 1-2.) Indeed, in another Social Security
case in which the Commissioner is the Defendant, the Court
recently issued an order addressing this approach:
Defendant filed a “motion for remand, ” in which
Defendant states: “Because [Defendant] agrees this case
should be remanded, the only issue remaining is the remedy,
thus necessitating filing of this Motion for Remand in lieu
of an Answering Brief.” (Doc. 20 at 2.) Defendant cites
no authority for the proposition that when only the issue of
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