United States District Court, W.D. Washington, Tacoma
HENRY E. BINFORD, 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.
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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
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 properly assessed medical opinion evidence
from acceptable medical sources.
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.
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)).
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.
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.
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.
(internal citation omitted).
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.
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
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.”).
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.
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)).
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
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.
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