United States District Court, W.D. Washington, Tacoma
BRIAN A. JACKSON, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.
ORDER REVERSING AND REMANDING DEFENDANT'S
DECISION TO DENY BENEFITS
W. Christel, United States Magistrate Judge
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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
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.
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
Whether the ALJ failed to comply with the previous Order from
this Court regarding Dr. Allender's
March 2010 opinion.
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.
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
“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
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.
Dr. Allender's March 2010 Opinion
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.
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.
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.
The Court's December 2015 Order
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
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. See AR 1265-66.
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 ...