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Jackson v. Berryhill

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

March 26, 2018

BRIAN A. JACKSON, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS

          David W. Christel, United States Magistrate Judge

         Plaintiff Brian A. Jackson filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of Plaintiff's applications for supplemental security income (“SSI”) and disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 6.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred by failing to follow instructions from this Court and the Appeals Council directing her to conduct further proceedings consistent with a previous Order from the Court. Had the ALJ followed the Court's instructions by properly considering medical opinion evidence from Dr. Brian Allender, M.D., the residual functional capacity (“RFC”) may have included additional limitations. The ALJ's error is therefore not harmless, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security (“Commissioner”) for further proceedings consistent with this Order.

         FACTUAL AND PROCEDURAL HISTORY

         This case has an extensive procedural background, with three ALJ hearings and three ALJ decisions. On October 22, 2008, Plaintiff filed applications for SSI and DIB, alleging disability as of December 1, 2006. See Dkt. 9, Administrative Record (“AR”) 17. The applications were denied upon initial administrative review and on reconsideration. See AR 17. ALJ Wayne Araki held the first hearing in this matter on August 11, 2010. AR 92-125. On September 23, 2010, ALJ Araki issued the first ALJ decision, finding Plaintiff to be not disabled. AR 137-44. Thereafter, Plaintiff appealed to the Appeals Council, which granted Plaintiff's request for review of the ALJ's decision and remanded the case back to the ALJ. AR 153-55.

         On December 6, 2012, ALJ Cynthia D. Rosa held the second hearing in this matter. AR 57-89. ALJ Rosa issued the second unfavorable decision on April 26, 2013, again finding Plaintiff to be not disabled. AR 17-43. The Appeals Council denied Plaintiff's request for review on October 3, 2014. AR 1-3. On December 8, 2014, Plaintiff filed the first suit in this Court, seeking review of ALJ Rosa's decision. See AR 1273-74. The Court issued an Order on December 28, 2015, finding the ALJ erred in her consideration of medical opinion evidence from Dr. Allender, her assessment of Plaintiff's RFC, and the subsequent Step Five findings. See AR 1258-72. As such, the Court reversed and remanded the matter for further proceedings. AR 1258, 1272. Thereafter, pursuant to the Court's Order, the Appeals Council vacated the ALJ's decision and remanded the case to an ALJ “for further proceedings consistent with the order of the court.” AR 1279.

         ALJ Rosa held the third hearing in this matter on June 2, 2016. AR 1162-90. On December 30, 2016, ALJ Rosa issued the third unfavorable decision in this matter, finding Plaintiff to be not disabled. AR 1114-42. ALJ Rosa's December 30, 2016 decision is the Commissioner's final decision. See 20 C.F.R. § 404.981, § 416.1481. Plaintiff now appeals ALJ Rosa's December 30, 2016 decision.[1]

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by failing to: (1) comply with the Court's Order regarding her treatment of Dr. Allender's March 2010 medical opinion; (2) provide specific and legitimate reasons to discount other medical opinions, including a December 2012 opinion from Dr. Allender and medical opinion evidence from Dr. Alysa A. Ruddell, Ph.D.; Dr. Shawn Kenderline, Ph.D.; Dr. David Widlan, Ph.D.; Dr. Joy Ruiz-Molleston, M.D.; Dr. Rufino Ramos, M.D.; Dr. Victoria McDuffee, Ph.D.; and Dr. Tasmin Bowes, Psy.D.; (3) provide germane reasons to discount opinion evidence from licensed mental health counselor Patricia Falsetto and lay witness Pam Lake; and (4) provide an RFC supported by substantial evidence in the record. Dkt. 13, pp. 1-18. As a result of these errors, Plaintiff argues an award of benefits is appropriate. Id. at 18.

         STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if 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) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

         DISCUSSION

         I. Whether the ALJ failed to comply with the previous Order from this Court regarding Dr. Allender's March 2010 opinion.

         Plaintiff first argues the ALJ erred by violating the Court's previous Order, which remanded the case for proper consideration of Dr. Allender's March 2010 medical opinion. Dkt. 13, pp. 4-6. In particular, Plaintiff argues the ALJ erred by discounting Dr. Allender's opinion with reasons the Court previously found legally insufficient. Id.

         Under the rule of mandate, “the mandate of a higher court is controlling as to matters within its compass.” Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168 (1939). A lower court is generally “bound to carry the mandate of the upper court into execution and [may] not consider the questions which the mandate laid at rest.” Id. Similarly, under the law of the case doctrine, “[t]he decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case.” United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995) (quoting Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir.1993) (internal quotations omitted)).

         Additionally, “as a general principle, the United States Supreme Court has recognized that an administrative agency is bound on remand to apply the legal principles laid down by the reviewing court.” Ischay v. Barnhart, 383 F.Supp.2d 1199, 1213-1214 (C.D. Cal. 2005); see Sullivan v. Hudson, 490 U.S. 877, 886 (1989) (citations omitted) (deviation from the court's remand order in the subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review). Likewise, Social Security regulations provide:

When a Federal court remands a case to the Commissioner for further consideration, the Appeals Council, acting on behalf of the Commissioner, may make a decision, or it may remand the case to an administrative law judge with instructions to take action and issue a decision or return the case to the Appeals Council with a recommended decision. If the case is remanded by the Appeals Council, the procedures explained in [20 C.F.R.] § 404.977 will be followed.

20 C.F.R. § 404.983 (emphasis added). Under 20 C.F.R. § 404.977, when the Appeals Council remands a case to the ALJ, the ALJ “shall take any action that is ordered by the Appeals Council and may take any action that is not inconsistent with the Appeals Council's remand order.” On remand, the ALJ must follow the specific instructions of the reviewing court. See, e.g., Samples v. Colvin, 103 F.Supp.3d 1227, 1231-32 (D. Or. 2015).

         A. Dr. Allender's March 2010 Opinion

         Dr. Allender is Plaintiff's treating psychiatrist. See AR 1079. On March 31, 2010, Dr. Allender completed a Psychological/Psychiatric Evaluation form regarding Plaintiff's mental health. AR 914-20. Dr. Allender diagnosed Plaintiff with major depressive disorder and post-traumatic stress disorder (“PTSD”). AR 915. He noted these disorders severely impact Plaintiff's ability to conduct work activities. AR 915. Moreover, Dr. Allender found Plaintiff had a diagnosis of substance abuse or dependence on methamphetamine that had been in remission for over ten years. AR 916.

         With respect to cognitive functional limitations, Dr. Allender opined Plaintiff had a mild limitation in his ability to learn new tasks and moderate limitation in his ability to perform routine tasks due to anxiety and stress. AR 917. Further, Dr. Allender determined Plaintiff had a severe limitation in his ability to exercise judgment and make decisions based on his observations of Plaintiff's struggles with concentration and problem solving. AR 917.

         Regarding social functional limitations, Dr. Allender opined Plaintiff had a severe limitation in his ability to relate appropriately to co-workers and supervisors because Plaintiff “reported difficulty working with or around others.” AR 917. In addition, Dr. Allender found Plaintiff had a marked limitation in his ability to interact appropriately in public contacts. AR 917. Dr. Allender opined Plaintiff had a severe limitation in his ability to maintain appropriate behavior in a work setting, as well as a severe limitation in his ability to respond appropriately to and tolerate the pressures and expectations of a normal work setting. AR 917. Dr. Allender opined to these latter two limitations based on his own observations, his understanding of how Plaintiff's mental illness impacts his daily activities, and Plaintiff's reports. AR 917.

         B. The Court's December 2015 Order

         On December 28, 2015, this Court reversed and remanded the second ALJ decision in this matter, finding the ALJ's treatment of Dr. Allender's March 2010 opinion unsupported by substantial evidence. See AR 1258-71. In its decision, the Court considered ALJ Rosa's treatment of Dr. Allender's opinion in three distinct sections and found the ALJ erred regarding the limitations discussed in the first and third sections. See AR 1265-67.

         First, the Court found the ALJ erred in her treatment of Dr. Allender's opinion that Plaintiff would have a severe cognitive limitation in his ability to exercise judgment and make decisions. AR 1265-66. The Court explained the ALJ erred because she “did not give any reason” to reject this finding, and it was unclear whether the ALJ's decision to limit Plaintiff to “simple, routine, repetitive tasks” encompassed this limitation.[2] See AR 1265-66.

         Second, the Court found the ALJ did not err in rejecting Dr. Allender's opinion that Plaintiff had a severe limitation in his ability to relate appropriately to co-workers and supervisors, and a marked limitation in his ability to interact appropriately with the public. AR 1266. The Court concluded the ALJ properly rejected these social limitations because Dr. Allender's report indicated he premised these limitations solely on Plaintiff's self-report. See AR 1266 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (internal citations omitted) (medical opinion premised on Plaintiff's subjective complaints may be disregarded where those complaints have been properly discounted). Moreover, the Court ...


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