Nathan Sprague v. Carolyn W. Colvin

Filing 22

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. (See document for further details). (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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NATHAN SPRAGUE,

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No. CV 16-07783 SS
Plaintiff,

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v.

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MEMORANDUM DECISION AND ORDER

NANCY A. BERRYHILL,1
Acting Commissioner of the
Social Security Administration,

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Defendant.

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I.

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INTRODUCTION

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Nathan

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Sprague

(“Plaintiff”)

seeks

review

of

the

final

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decision of the Commissioner of the Social Security Administration

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(the “Commissioner” or the “Agency”) denying his application for

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Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for former Acting Commissioner Carolyn
W. Colvin in this case. See Fed. R. Civ. P. 25(d).
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benefits.

The parties consented, pursuant to 28 U.S.C. § 636(c),

to the jurisdiction of the undersigned United States Magistrate
Judge.

(Dkt. Nos. 10-11).

For the reasons stated below, the

decision of the Commissioner is REVERSED and this case is REMANDED
for

further

administrative

proceedings

consistent

with

this

decision.

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II.

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PRIOR PROCEEDINGS

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A. Administrative Proceedings

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On June 4, 2010, Plaintiff filed an application for child’s
insurance benefits. (Administrative Record (“AR”) 122). Plaintiff
alleged that he has been disabled due to autism since June 3, 1992,
the day he was born.

(AR 128).

application on November 16, 2010.

The Agency denied Plaintiff’s
(AR 69-73).

On March 4, 2011,

the Agency denied Plaintiff’s application upon reconsideration.
(AR 74-78).

On April 21, 2011, Plaintiff requested a hearing

before an Administrative Law Judge (“ALJ”).

(AR 81).

On June 5,

2012, ALJ Dale A. Garwal conducted a hearing to review Plaintiff’s
claim.

(AR 37-53).

On June 27, 2012, the ALJ found that Plaintiff

was not disabled under the Social Security Act.

(AR 21-36).

On

August 6, 2012, Plaintiff sought review of the ALJ’s decision.

(AR

18-20).

The Appeals Council denied Plaintiff’s request on February

25, 2014.

(AR 1-5).

The ALJ’s decision then became the final

decision of the Commissioner.

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B. Prior Federal Court Proceedings

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Plaintiff commenced a civil action on April 21, 2014.
421-423).

(AR

After the parties completed joint stipulation briefing,

the court issued a decision remanding the matter for further
proceedings.

Sprague v. Colvin, No. CV 14-3219-CW (C.D. Cal. July

22, 2015) (AR 430-440).

The court noted that Plaintiff’s sole

claim was that the ALJ did not properly consider the opinion of
Plaintiff’s treating psychiatrist, Dr. Timothy Tice, in determining
that Plaintiff was not disabled.

(AR 436).

The court noted that

Dr. Tice began treating Plaintiff in February of 2009 and saw him
on a monthly basis thereafter.

(AR 437).

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The

ALJ

had

found

that

Plaintiff

suffers

from

“severe”

impairments of Asperger’s syndrome/autism and dysthymic disorders.
(AR 432).

The ALJ concluded that Plaintiff retained the residual

functioning capacity (“RFC”) to “perform a full range of work at
all

exertional

levels

but

with

the

following

nonexertional

limitations: limitation to the performance of simple routine tasks
with occasional public and coworker contact.”

(AR 432).

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However, the court noted that the “ALJ’s RFC determination
did not include several of Dr. Tice’s limitations, including those
in maintaining attention and withstanding the stress and pressure
of an eight-hour workday.”

(AR 438).

The court stated that the

ALJ’s “failure to include Dr. Tice’s limitations in Plaintiff’s
RFC constitutes an implicit rejection of this portion [of the

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opinion].

Yet the ALJ failed to give any reasons, let alone a

specific and legitimate one, for rejecting this part of Dr. Tice’s
opinion.”

[internal citations omitted].

(AR 438).

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The court found that remand was required to remedy these
defects in the ALJ’s decision.

The court further noted that “even

crediting Dr. Tice’s opinion as true, Plaintiff’s entitlement to
benefits is not clear from the existing record because there is no
vocational expert opinion of disability corresponding to Dr. Tice’s
opinion.”

(AR 439).

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On November 2, 2015, the Appeals Council issued an order
directing the ALJ to conduct further proceedings in compliance with
the district court's order of remand.
pursuant

to

the

order

supplemental hearing.

of

(AR 444).

remand,

(AR 377-394).

ALJ

On May 4, 2016,

Garwal

conducted

a

On June 22, 2015, ALJ Garwal

once again found that Plaintiff was not disabled under the Social
Security Act.

(AR 357-376).

action on October 19, 2016.

Plaintiff commenced the instant

(Dkt. No. 1).

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III.
STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), a district court may review the
Commissioner’s decision to deny benefits.

The court may set aside

the Commissioner’s decision when the ALJ’s findings are based on

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legal error or are not supported by “substantial evidence” in the
record as a whole.

Aukland v. Massanari, 257 F.3d 1033, 1035

(9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v.
Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen,
885 F.2d 597, 601 (9th Cir. 1989)).

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“Substantial evidence is more than a scintilla, but less than
a preponderance.”

Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.

1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir.
1997)).

It is “relevant evidence which a reasonable person might

accept as adequate to support a conclusion.” Id. (citing Jamerson,
112 F.3d at 1066; Smolen, 80 F.3d at 1279).

To determine whether

substantial evidence supports a finding, the court must “‘consider
the record as a whole, weighing both evidence that supports and
evidence that detracts from the [Commissioner’s] conclusion.’”
Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953,
956 (9th Cir. 1993)).

If the evidence can reasonably support

either affirming or reversing that conclusion, the court may not
substitute its judgment for that of the Commissioner.

Reddick,

157 F.3d at 720-21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th
Cir. 1995)).

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IV.

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THE ALJ’S 2016 DECISION

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The ALJ employed the five-step sequential evaluation process

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in evaluating Plaintiff’s case.

At step one, the ALJ found that

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Plaintiff had not engaged in substantial gainful activity since
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June 3, 1992, his alleged onset date.

(AR 362).

At step two, the

ALJ found that Plaintiff had the following severe impairments:
Asperger’s syndrome/autism, and dysthymic disorders (AR 362).

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At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1. (AR 362).

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Next, the ALJ determined that, prior to attaining age 22,
Plaintiff had the RFC to perform a full range of work at all
exertional levels but with the following nonexertional limitations:
limitation

to

the

performance

of

simple

routine

tasks,

with

occasional public and coworker contact. (AR 363).

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At step four, the ALJ determined that Plaintiff has no past
relevant work.

(AR 368).

At step five, the ALJ found that, prior

to attaining age 22 and considering Plaintiff’s age, education,
work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform.
369).

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(AR

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V.

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DISCUSSION

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A. The ALJ’s Decision Violated The Law Of The Case Doctrine

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Plaintiff contends that the ALJ deviated from the district
court’s remand instructions by failing to properly consider Dr.
Tice’s opinions and by failing to consult a vocational expert.
(Pl. MSO at 5-7).

The Court agrees.

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The law of the case doctrine compels a lower court to follow
“‘the [appellate court's] decree as the law of the case; and must
carry it into execution, according to the mandate.’”

Sanchez v.

Astrue, 2012 WL 3704756, at *10 (E.D. Cal. Aug. 27, 2012) (quoting
Vizcaino v. U.S. District Court, 173 F.3d 713, 719 (9th Cir. 1999).
In a case of first impression, the Ninth Circuit held “that the
law

of

the

case

doctrine

…

appl[ies]

to

social

security

administrative remands from federal court in the same way they
would apply to any other case."
566 (9th Cir. 2016).

Stacy v. Colvin, 825 F.3d 563,

Reversal is warranted under this doctrine

when an ALJ’s decision “exceed[s] the scope of and/or contravene[s]
district court remand orders.”

Almarez v. Astrue, 2010 WL 3894646,

at *3 (C.D. Cal. Sept. 30, 2010).

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Here, the district court, in its initial memorandum decision,
ruled as follows:

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In his decision, the ALJ purported to fully credit Dr.

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Tice’s opinion.

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did

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including

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withstanding the stress and pressures of an eight-hour

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workday.

not

[]

include

However, the ALJ’s RFC determination

several

those

in

of

Dr.

Tice’s

maintaining

limitations,

attention

and

Rather, the ALJ’s RFC determination included

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only a limitation to ‘simple repetitive tasks, with

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occasional public and coworker contact.’

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[]

The ALJ’s

failure to include Dr. Tice’s limitations in Plaintiff’s
RFC constitutes an implicit rejection of this portion of
Dr. Tice’s opinion.

(citation omitted).

Yet the ALJ

failed to give any reasons, let alone a specific and
legitimate one, for rejecting this part of Dr. Tice’s
opinion.

(citation omitted).

. . . [E]ven crediting

Dr. Tice's opinion as true, Plaintiff's entitlement to
benefits is not clear from the existing record because
there is no vocational expert opinion of disability

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corresponding to Dr. Tice's opinion. (citation omitted).

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Thus, remand for further proceedings is appropriate.

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(AR 438-440).

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the ALJ to include Dr. Tice’s limitations in Plaintiff’s RFC or

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provide specific reasons for rejecting these portions of Dr. Tice’s

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opinions.

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obtaining a vocational expert opinion of disability corresponding

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to Dr. Tice's opinion.

The district court’s remand order therefore required

In addition, the district court faulted the ALJ for not

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As discussed more thoroughly below, the ALJ developed his
analysis by considering new evidence from Dr. Tice on remand.

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However,

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accordance with the district court’s instructions and did not

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provide specific and legitimate reasons for rejecting Dr. Tice’s

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opinions.

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regarding Plaintiff's ability to work, as directed by the district

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court in the initial remand order.

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properly consider the evidence, the ALJ did not follow the district

the

ALJ

still

failed

to

consider

the

evidence

in

Furthermore, the ALJ did not ask for a VE's opinion

Accordingly, by failing to

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court’s remand instructions.

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consider Dr. Tice’s opinions and evaluations in accordance with

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Upon second remand, the ALJ must

the district court’s instructions.

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B. The ALJ Failed To Provide Specific And Legitimate Reasons For

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Rejecting Dr. Tice’s Additional Opinion

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In March of 2016, Dr. Tice provided an additional opinion

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regarding Plaintiff’s condition. (AR 567-572). Plaintiff contends
that the ALJ failed to provide specific and legitimate reasons
supported by substantial evidence for rejecting this opinion.
MSO at 13).

(Pl.

The Court agrees.

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The ALJ stated that in March of 2016, Dr. Tice “indicated mild

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limitation in the ability to understand, remember and carry out
simple job instructions, and moderate limitation in the ability to
[]

maintain

increments.”

concentration
(AR 368).

and

attention

for

at

least

2

hour

The ALJ found that this opinion was

inconsistent with Dr. Tice’s February 2011 opinion in which he
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reported an “unlimited ability to perform activities within a
schedule

and

maintain

regular

attendance,

good

ability

to

understand, remember and carry out simple instructions, maintain
attention, concentration and persistence, and complete a normal
workday/week without interruptions." (AR 367-368).

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To

the

extent

that

the

ALJ

relies

on

these

alleged

inconsistencies as specific and legitimate reasons for rejecting
Dr. Tice’s 2016 opinion, his reliance is misplaced.
referenced

assessments

utilize

two

different

First, the

rating

undermining the ability to make a direct comparison.
567).

Further,

the

ALJ

fails

to

explain

how

scales,
(AR 304,

these

alleged

inconsistencies are significant enough to constitute specific and
legitimate reasons for rejecting Dr. Tice’s treating opinion.

On

remand, the ALJ must provide specific and legitimate reasons for
rejecting any portions of Dr. Tice’s opinions.

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The ALJ also stated that Dr. Tice’s conclusion “of inability
to engage in any work activity is given little weight as this
appears to be [] sympathetic rather than objective”.

(AR 368).

To the extent that the ALJ suggests that Dr. Tice's medical opinion
is influenced by Dr. Tice's sympathy for Plaintiff as his patient,
as

opposed

to

the

doctor's

honest

opinion

of

Plaintiff's

limitations, this is not a legitimate reason (without more specific
evidence) to reject a treating doctor's opinion.

An ALJ “may not

assume that doctors routinely lie in order to help their patients
collect disability benefits.”

Lester v. Chater, 81 F.3d 821, 832

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(9th Cir. 1995) (quoting Ratto v. Secretary, 839 F. Supp. 1415,
1426 (9th Cir. 2008)).

On remand, the ALJ must provide specific

and legitimate reasons supported by the record for discrediting
Dr. Tice’s conclusions, if the ALJ rejects the treating doctor's
limitations.

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In sum, on remand the ALJ must provide specific and legitimate

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reasons for rejecting Dr. Tice’s opinion or must incorporate Dr.

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Tice’s findings and limitations into a new RFC.

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C. After Considering All Of Dr. Tice’s Evidence, And Possibly

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Utilizing

The

Assistance

Of

A

Medical

Expert

To

Fully

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Understand The Evidence, The ALJ Must Take Testimony From A

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VE

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Plaintiff contends that, despite the district court’s mandate,

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the ALJ failed to adduce testimony from a vocational expert (“VE”)

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regarding whether a finding of disability corresponds to Dr. Tice’s

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opinion.

(Pl. MSO at 7).

The Court agrees.

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The ALJ should have obtained VE testimony at the 2016 hearing.

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The

prior

remand

order

from

the

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directed the ALJ to do so and this direction cannot be ignored.

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Stacy, 825 F.3d at 568-9 (citing Hall v. City of Los Angeles, 697

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F.3d 1059, 1067 (9th Cir. 2011).

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testimony regarding Dr. Tice’s opinion, including the information

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set forth in his March 2016 evaluation.
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district

court

specifically

On remand, the ALJ must take VE

Specifically, the ALJ must

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present a hypothetical to the VE that takes into consideration all
of Plaintiff’s limitations as articulated by Dr. Tice, unless the
ALJ has provided specific and legitimate reasons, supported by the
record, to reject those limitations.

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Additionally, on remand, if necessary to help the ALJ fully
understand the evidence, the ALJ should utilize a medical expert.
The medical expert’s role would be to evaluate any limitations
imposed on Plaintiff as a result of his conditions.

See 20 C.F.R.

§§ 404.1527(f)(2)(iii), 416.927(f)(2)(iii) (“[ALJs] may also ask
for and consider opinions from medical experts on the nature and
severity of [a claimant's] impairment(s) ...”).

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VI.

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CONCLUSION

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Accordingly, IT IS ORDERED that Judgment be entered REVERSING

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the decision of the Commissioner and REMANDING this matter for

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further proceedings consistent with this decision.

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ORDERED that the Clerk of the Court serve copies of this Order and

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the Judgment on counsel for both parties.

IT IS FURTHER

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DATED:

November 30, 2017

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/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

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THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS,
WESTLAW OR ANY OTHER LEGAL DATABASE.
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