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Binford v. Berryhill

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

July 31, 2018

HENRY E. BINFORD, 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 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”). 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. 2.

         After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred by failing to properly consider opinion evidence from Dr. Yun-Ju Cheng, Ph.D., and Mr. Roger Calvert, Physician's Assistant (“PA”). Had the ALJ properly considered this evidence, 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 Deputy Commissioner of Social Security (“Commissioner”) for further proceedings consistent with this Order.

         FACTUAL AND PROCEDURAL HISTORY

         On September 9, 2010, Plaintiff filed an application for SSI, alleging disability as of June 10, 2009. See Dkt. 11, Administrative Record (“AR”) 25. The application was denied upon initial administrative review and on reconsideration. See AR 25. ALJ Michael Gilbert has held two hearings and issued two decisions in this matter. On March 6, 2012, the ALJ held the first hearing. AR 41-90. In a decision dated March 25, 2012, the ALJ determined Plaintiff to be not disabled. AR 22-39. Plaintiff appealed that decision to the United States District Court for the Western District of Washington (“Court”). AR 673-76. In an Order issued December 22, 2014, the Court reversed and remanded the ALJ's decision to the Commissioner for further consideration consistent with the Court's Order. AR 678-88.

         On April 21, 2017, the ALJ held the second hearing in this matter. AR 560-646. In a decision dated June 3, 2017, the ALJ again determined Plaintiff to be not disabled. AR 519-59. Plaintiff did not seek review of the ALJ's decision by the Appeals Council, making the ALJ's June 3, 2017 decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. Plaintiff now appeals the ALJ's June 3, 2017 decision.[1]

         In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by failing to: (1) properly assess medical opinion evidence from acceptable medical sources; (2) properly consider opinion evidence from “other” medical sources; (3) provide legally sufficient reasons to discount Plaintiff's subjective symptom testimony; and (4) correctly assess the RFC and subsequent Step Five findings. Dkt. 15, pp. 3-19. Plaintiff argues that as a result of these errors, an award of benefits is warranted. Id. at 19.

         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 properly assessed medical opinion evidence from acceptable medical sources.

         Plaintiff argues the ALJ failed to properly assess medical opinion evidence from Dr. Yun-Ju Cheng, Ph.D.; Dr. Andrew P. Manista, M.D.; Dr. Guthrie Turner, M.D.; and Dr. Eric Dean Schmitter, M.D. Dkt. 15, pp. 4-5, 8-9, 11-13.

         In assessing acceptable medical sources, an ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining physician's opinion is contradicted, the opinion can be rejected “for specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can accomplish this by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

         A. Dr. Cheng

         Plaintiff maintains the ALJ erred by failing to provide legally sufficient reasons to reject medical opinion evidence from examining physician, Dr. Cheng. Dkt. 15, pp. 8-9.

         Dr. Cheng conducted a mental evaluation of Plaintiff on August 24, 2014. AR 1467-71. As part of the evaluation, Dr. Cheng conducted a mental status examination of Plaintiff. AR 1468-70. Dr. Cheng diagnosed Plaintiff with recurrent major depressive disorder, and a rule out diagnosis of bipolar disorder. AR 1470. In relevant part, Dr. Cheng opined:

The claimant appears to posses [sic] ability to reason and understand. His immediate memory appears to be intact, however his remote and short-term memory appears to be impaired. He appears to be able to follow and understand simple directions and instructions. [H]e can perform simple tasks except that with tasks that require physical involvement, he has difficulty maintaining attention and concentration. He might have difficulty learning new tasks and perform [sic] complex tasks independently. His judgment appears to be somewhat impaired. He has difficulty socializing and interacting with others, which appears to be a chronic issue. He also appears to have difficulty dealing with stress and adopting to change.

         AR 1470-71.

         With respect to Dr. Cheng's opinion, the ALJ stated:

Some weight is accorded to the consultative examining psychologist Dr. Cheng who concluded that the claimant appeared able to follow and understand simple directions and instructions and perform simple tasks. However, less weight is accorded to the aspects of Dr. Cheng's opinion regarding difficulties maintaining attention/concentration on physical tasks, learning new tasks, exercising judgment, social interaction, dealing with stress, and adopting to change because they are inconsistent with the weight of evidence and the routinely normal objective mental status examinations as discussed throughout this decision.

         AR 545 (internal citation omitted).

         The ALJ discounted several aspects of Dr. Cheng's opinion because he found them inconsistent “with the weight of the evidence, ” as well as Plaintiff's “routinely normal” mental status examinations. AR 545. Generally, an ALJ may discount a physician's opinion if it is “brief, conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (citation omitted). An ALJ may also discount a physician's opinion which is inadequately supported “by the record as a whole.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citation omitted). In any event, an ALJ cannot reject a physician's opinion in a vague or conclusory manner. As the Ninth Circuit has stated:

To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.

Embrey, 849 F.2d at 421.

         Here, although the ALJ asserted that aspects of Dr. Cheng's opinion were inconsistent with the record, he failed to identify any particular evidence in the record and explain how it undermined Dr. Cheng's findings. See AR 545. In other words, the ALJ “merely state[d] that the objective factors point toward an adverse conclusion, ” but “ma[de] no effort to relate any of these objective factors” to particular findings from Dr. Cheng. See Embrey, 849 F.2d at 422. “This approach is inadequate.” Id. Hence, the ALJ's conclusory reasons for rejecting Dr. Cheng's opinion were not specific and legitimate nor supported by substantial evidence in the record. Id. at 421-22; see also Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“the agency [must] set forth the reasoning behind its decisions in a way that allows for meaningful review”).

         Further, an ALJ “errs when he rejects a medical opinion or assigns it little weight while . . . asserting without explanation that another medical opinion is more persuasive.” Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014). In this instance, the ALJ's reasoning gave greater weight to “the routinely normal objective mental status examinations” over Dr. Cheng's mental status examination without explanation as to why the other examinations were more persuasive. See AR 545. As such, this was not a specific and legitimate reason to discount Dr. Cheng's opinion. See Garrison, 759 F.3d at 1012 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)) (“Where an ALJ does not . . . set forth specific, legitimate reasons for crediting one medical opinion over another, he errs.”).

         For the above stated reasons, the Court concludes the ALJ failed to provide any specific, legitimate reason, supported by substantial evidence, for discounting Dr. Cheng's opinion. Therefore, the ALJ erred.

         Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless only if it is not prejudicial to the claimant or “inconsequential” to the ALJ's “ultimate nondisability determination.” Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Molina, 674 F.3d at 1115. The determination as to whether an error is harmless requires a “case-specific application of judgment” by the reviewing court, based on an examination of the record made “‘without regard to errors' that do not affect the parties' ‘substantial rights.'” Molina, 674 F.3d at 1118-1119 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111)).

         In this case, had the ALJ properly considered Dr. Cheng's opinion, the RFC and the hypothetical questions posed to the vocational expert (“VE”) may have included additional limitations. For instance, the RFC and hypothetical questions may have reflected Dr. Cheng's opinion that Plaintiff has difficulty maintaining attention and concentration. The RFC and hypothetical questions may have also contained further social limitations, given Dr. Cheng's opinion that Plaintiff has difficulty socializing and interacting with others. The RFC and hypothetical questions posed to the VE did not contain these limitations. See AR 526-27, 633-45. As the ultimate disability decision may have changed, the ALJ's error is not harmless and requires reversal. See Molina, 674 F.3d at 1115.

         B. Dr. Manista

         Plaintiff next argues the ALJ failed to properly consider medical opinion evidence from Dr. Manista by failing to comply with the previous Order from this Court. Dkt. 15, pp. 4-5.

         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 ...


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