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Smith v. Berryhill

United States District Court, W.D. Washington

April 5, 2018

CHARLENE A. SMITH, 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 Charlene A. Smith filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of Plaintiff's application for 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. 5.

         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. Andrew N. Willner, M.D., the ALJ may have found Plaintiff met a Listing at Step Three, and 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 a lengthy procedural background, with four ALJ hearings, three ALJ decisions, and one previous decision from this Court. On June 4, 2009, Plaintiff filed an application for DIB, alleging disability as of January 4, 2005. See Dkt. 8, Administrative Record (“AR”) 600. The application was denied upon initial administrative review and on reconsideration. See AR 600. On November 2, 2010, ALJ Laura Valente held the first hearing in this matter. AR 61-91. ALJ Valente issued the first ALJ decision on November 18, 2010, finding Plaintiff to be not disabled. AR 94-112. Plaintiff appealed the unfavorable decision to the Appeals Council, which granted Plaintiff's request for review and remanded the case back to the ALJ. AR 113-16.

         On December 3, 2012, ALJ Scott R. Morris held the second administrative hearing in this matter. AR 30-60. ALJ Morris issued an unfavorable decision on February 11, 2013, again fining Plaintiff to be not disabled. AR 8-29. The Appeals Council denied Plaintiff request for review of ALJ Morris's decision on August 1, 2014. AR 1-5.

         Plaintiff filed her first action in this Court on October 3, 2014, seeking review of ALJ Morris's decision. See AR 684-85, 687-88. On July 24, 2015, the Court issued an Order finding the ALJ erred regarding medical opinion evidence from Dr. Andrew N. Willner, M.D. See AR 689-703. Pursuant to the Court's Order, the Appeals Council vacated ALJ Morris's February 2013 decision and remanded Plaintiff's claim to the ALJ “for further proceedings consistent with the order of the court.” AR 707-11.

         ALJ Valente held the third hearing in this matter on March 29, 2016. AR 624-632. At the hearing, ALJ Valente realized some of Plaintiff's medical records were missing from the administrative record. See AR 628-31. Therefore, she postponed the hearing in order to get the medical records. See AR 628-31. On November 17, 2016, ALJ Valente held the most recent hearing in this matter. AR 619-23. On February 17, 2017, ALJ Valente issued the third unfavorable decision, finding Plaintiff to be not disabled. AR 597-618. ALJ Valente's February 2017 decision is the Commissioner's final decision, which Plaintiff now appeals.[1] See 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by failing to: (1) comply with the Court's Order by properly considering Dr. Willner's opinions and make a new RFC assessment and Step Five findings; (2) provide clear and convincing reasons to discount Dr. Willner's medical opinions; (3) properly consider Plaintiff's impairments under Listing 12.04; (4) properly assess Plaintiff's subjective symptom testimony and the lay witness opinions; and (5) properly assess the RFC and subsequent Step Five findings. See Dkt. 12, pp. 3-18. Plaintiff argues that as a result of these errors, an award of benefits is appropriate. Id. at 19-20.

         Plaintiff must establish disability between her alleged onset date - January 4, 2005 - and her date last insured - December 31, 2006. See AR 603; Flaten v. Sec. of Health & Human Servs., 44 F.3d 1453, 1461 n.4 (9th Cir. 1995) (citations omitted).

         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.

         Plaintiff argues the ALJ erred by failing to follow the previous Order from this Court. Dkt. 12, p. 3. Specifically, Plaintiff maintains the ALJ erred because she did not comply with the Court's Order that ordered her to re-evaluate Dr. Willner's opinions, and the ALJ “largely repeated” the RFC assessment and Step Five finding from ALJ Morris's decision. Id.

         Both the “law of the case doctrine and the rule of mandate apply in the social security context.” Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016). 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)). Therefore, a court is precluded from revisiting issues which have been decided - either explicitly or implicitly - in a previous decision of the same court or a higher court. Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). The doctrine of the law of the case “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, 825 F.3d at 567.

         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 ...

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