Janet M. B. v. Saul

          MEMORANDUM OPINION AND ORDER OF REMAND

          CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE

         Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

         PROCEEDINGS

         On April 9, 2019, Plaintiff filed a complaint seeking review of the Commissioner's denial of disability benefits. On May 17, 2019, the parties filed a consent to proceed before a United States Magistrate Judge. On September 27, 2019, Plaintiff filed a motion for summary judgment. On October 28, 2019, Defendant filed a motion for summary judgment. The Court has taken the motions under submission without oral argument. See L.R. 7-15; “Order, ” filed April 12, 2019.

         BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

         Plaintiff asserts disability since May 28, 2008, based largely on allegedly extreme sensitivity to synthetic fumes and odors, following workplace exposure to trichloroethylene (“TCE”) (Administrative Record (“A.R.”) 55-70, 334, 1033-57).^[1] The Court twice previously has remanded this case for further administrative proceedings. In the first remand order, the Court found material ambiguities and inconsistencies in the Administrative Law Judge's (“ALJ's”) first decision. See A.R. 1124-31 (Memorandum Opinion and Order of Remand in [B.] v. Colvin, CV 13-5618-E); see also A.R. 1138 (Appeals Council's subsequent remand order).^[2] In the second remand order, the Court found that the medical opinions on which the same ALJ purportedly relied in determining Plaintiff's residual functional capacity were inconsistent, and no medical opinion specifically endorsed the particular environmental limitations the ALJ assessed. See A.R. 1694-1708 (Memorandum Opinion and Order of Remand in [B.] v. Colvin, CV 16-1130-E); see also A.R. 1711 (Appeals Council's order remanding for further proceedings before a new ALJ).^[3]

         After the most recent remand, a new ALJ held another hearing at which Plaintiff and a vocational expert testified, and the ALJ reviewed additional evidence (i.e., medical records from visits with Dr. Bernhoft postdating the disability period at issue) (A.R. 1543-1634). In the third administrative decision, the new ALJ found Plaintiff not disabled based, in part, on the ALJ's belief that Plaintiff's alleged multiple chemical sensitivity syndrome is not even a medically determinable impairment (A.R. 1521-32). The ALJ found that Plaintiff: (1) has severe “adjustment disorder, migraines, history of bilateral ganglion cysts, lumbar strain, and asthma” (A.R. 1524); (2) retains a residual functional capacity for light work limited to detailed but not complex tasks, and avoiding concentrated exposure to dust, odors, fumes or chemical irritants (A.R. 1525); and (3) with this capacity, Plaintiff could perform work as a marker, routing clerk or ticket seller (A.R. 1531-32 (adopting vocational expert's testimony at A.R. 1618-22)). All the testifying vocational experts have opined that, if a person were precluded from all exposure to fumes, dust, odors, gases, etc., there would be no jobs the person could perform. See A.R. 72-73, 1070, 1622. The Appeals Council denied review (A.R. 1512-14).

         STANDARD OF REVIEW

         Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).

         DISCUSSION

         For the reasons discussed below, yet another remand is appropriate.

         I. The ALJ Did Not Violate the Law of the Case Doctrine By Revisiting the Prior Step 2 Determinations.

         Although the Court finds remand to be appropriate, the Court rejects Plaintiff's argument regarding the law of the case doctrine. The law of the case doctrine, which applies in the social security context, sometimes prevents a tribunal from considering an issue that has already been decided by the same tribunal, or by a higher tribunal, in ...