United States District Court, W.D. Washington
CHARLENE A. SMITH, 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.
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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
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. See 20 C.F.R. § 404.981,
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.
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)
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
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.
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.”
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.
“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 ...