Henderson v. Colvin

Filing 15


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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 BYRON CRAIG HENDERSON, 9 Plaintiff, 10 11 12 NO. C16-0733RSL v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 1 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS Defendant. 13 14 Plaintiff Byron Craig Henderson appeals the final decision of the Commissioner of the 15 Social Security Administration (“Commissioner”), which denied his applications for Disability 16 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI 17 of the Social Security Act, 42 U.S.C. §§ 401-33 and 1381-83f, after a hearing before an 18 administrative law judge (“ALJ”). For the reasons set forth below, the Commissioner’s 19 decision is hereby REVERSED and REMANDED. 20 // 21 22 23 1 Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for Carolyn W. Colvin as defendant in this suit. The Clerk is directed to update the docket, and all future filings by the parties should reflect this change. 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 1 1 2 I. FACTS AND PROCEDURAL HISTORY Plaintiff is a 49-year-old man with a high-school education. Administrative Record 3 (“AR”) at 194, 199. His past work experience was as a delivery person and warehouse worker. 4 AR at 199. Plaintiff was last gainfully employed in September of 2007. AR at 198. 5 Plaintiff protectively filed applications for DIB and SSI on June 14, 2010. AR at 548. 6 Plaintiff asserted that he was disabled due to attention deficit disorder, depression, bipolar 7 disorder, anxiety, and psychosis. AR at 198. 8 9 The Commissioner denied plaintiff’s claims initially and on reconsideration. AR at 548. After a hearing at which plaintiff amended his alleged onset date to March 2, 2009, ALJ 10 Verrell Dethloff issued a decision finding plaintiff not to be disabled. AR at 19-37. After the 11 Appeals Council declined review, plaintiff appealed that decision to this Court, which 12 remanded the matter for further administrative proceedings. AR at 686-702. 13 Meanwhile, plaintiff filed subsequent applications for DIB and SSI on December 16, 14 2013. See AR at 549. Plaintiff received a favorable determination finding him to be disabled as 15 of April 7, 2012. See id. The Appeals Council affirmed that determination. AR at 708-12. 16 A new hearing regarding the original applications took place on December 3, 2015. AR 17 at 615-44. On January 16, 2016, ALJ Virginia M. Robinson issued a decision finding that 18 between March 2, 2009, and April 7, 2012, plaintiff was not disabled based on her finding that 19 plaintiff could perform past work or could alternatively perform specific jobs existing in 20 significant numbers in the national economy. AR at 548-61. It does not appear from the record 21 that the Appeals Council assumed jurisdiction of the case. See 20 C.F.R. §§ 404.984, 22 416.1484. On May 24, 2016, plaintiff timely filed the present action challenging the 23 Commissioner’s decision. Dkt. No. 3. 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 2 II. 1 2 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 3 social security benefits when the ALJ’s findings are based on legal error or not supported by 4 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th 5 Cir. 2005). “Substantial evidence” is more than a scintilla, less than a preponderance, and is 6 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 7 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 8 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in 9 medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 10 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a 11 whole, it may neither reweigh the evidence nor substitute its judgment for that of the 12 Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is 13 susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that 14 must be upheld. Id. 15 16 III. EVALUATING DISABILITY As the claimant, Mr. Henderson bears the burden of proving that he is disabled within 17 the meaning of the Social Security Act (the “Act”). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th 18 Cir. 1999). The Act defines disability as the “inability to engage in any substantial gainful 19 activity” due to a physical or mental impairment which has lasted, or is expected to last, for a 20 continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A 21 claimant is disabled under the Act only if his impairments are of such severity that he is unable 22 to do his previous work, and cannot, considering his age, education, and work experience, 23 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 3 1 engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. 2 § 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). 3 The Commissioner has established a five-step sequential evaluation process for 4 determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. 5 §§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. 6 At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at 7 any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step 8 one asks whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R. 9 §§ 404.1520(b), 416.920(b). 2 If he is, disability benefits are denied. If he is not, the 10 Commissioner proceeds to step two. At step two, the claimant must establish that he has one or 11 more medically severe impairments, or combination of impairments, that limit his physical or 12 mental ability to do basic work activities. If the claimant does not have such impairments, he is 13 not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does have a severe 14 impairment, the Commissioner moves to step three to determine whether the impairment meets 15 or equals any of the listed impairments described in the regulations. 20 C.F.R. §§ 404.1520(d), 16 416.920(d). A claimant whose impairment meets or equals one of the listings for the required 17 12-month duration requirement is disabled. Id. 18 When the claimant’s impairment neither meets nor equals one of the impairments listed 19 in the regulations, the Commissioner must proceed to step four and evaluate the claimant’s 20 residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the 21 Commissioner evaluates the physical and mental demands of the claimant’s past relevant work 22 23 2 Substantial gainful activity is work activity that is both substantial, i.e., involves significant physical and/or mental activities, and gainful, i.e., performed for profit. 20 C.F.R. § 404.1572. 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 4 1 to determine whether he can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If 2 the claimant is able to perform his past relevant work, he is not disabled; if the opposite is true, 3 then the burden shifts to the Commissioner at step five to show that the claimant can perform 4 other work that exists in significant numbers in the national economy, taking into consideration 5 the claimant’s RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 6 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable 7 to perform other work, then the claimant is found disabled and benefits may be awarded. IV. 8 9 10 On January 21, 2016, the ALJ issued a decision finding the following: 1. The claimant has not engaged in substantial gainful activity since March 2, 2009, the amended alleged onset date (20 C.F.R. §§ 404.1571 et seq. and 416.971 et seq.). 2. Between March 2, 2009, and April 7, 2012, the claimant had the following severe impairments: affective disorder, personality disorder, and substance use disorder (20 C.F.R. §§ 404.1520(c) and 416.920(c)). 3. Between March 2, 2009, and April 7, 2012, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). 4. Between March 2, 2009, and April 7, 2012, the claimant had the residual functional capacity to perform a full range of work at all exertional levels. He needed to avoid concentrated exposure to pulmonary irritants and workplace hazards. He could perform simple and routine tasks in a routine work environment. He could have superficial interaction with coworkers and supervisors. His work should not have required teamwork projects, supervisory responsibilities, or responsibility for cooperative tasks. He could perform work tasks that were generally performed independently, with only incidental interaction with the public. His work should not have required interaction with the public as a part of his job duties. 5. Between March 2, 2009, and April 7, 2012, the claimant was capable of performing past relevant work (20 C.F.R. §§ 404.1565 and 11 12 13 14 15 16 17 18 19 20 21 22 23 DECISION BELOW 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 5 416.965). Alternatively, considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that existed in significant numbers in the national economy that the claimant could have performed during the relevant period (20 C.F.R. §§ 404.1560(c), 404.1566, 416.960(c), and 416.966). 1 2 3 4 6. 5 6 The claimant was not under a disability, as defined in the Social Security Act, between March 2, 2009, and April 7, 2012 (20 C.F.R. §§ 404.1520(f) and 416.920(f)). AR at 548-61. V. 7 8 9 10 11 ISSUES ON APPEAL The issues on appeal are: A. Whether the ALJ erred by failing to comply with this Court’s order. B. Whether the ALJ erred in evaluating the medical evidence in the record. C. Whether the ALJ’s RFC is supported by substantial evidence. Dkt. 12 at 2. 12 VI. DISCUSSION 13 A. Compliance with the Court’s Prior Order 14 Plaintiff argues that the ALJ erred by failing to comply with this Court’s order 15 reversing the Commissioner’s prior unfavorable decision and remanding the matter for further 16 administrative proceedings. See Dkt. 12 at 4-5. The Court agrees. 17 Under the rule of mandate, “the mandate of a higher court is controlling as to matters 18 within its compass.” Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939). A lower court 19 is generally “bound to carry the mandate of the upper court into execution and [may] not 20 consider the questions which the mandate laid at rest.” Id. Similarly, under the law of the case 21 doctrine, “[t]he decision of an appellate court on a legal issue must be followed in all 22 subsequent proceedings in the same case.” United States v. Cote, 51 F.3d 178, 181 (9th 23 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 6 1 Cir.1995) (quoting Herrington v. County of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993) (internal 2 quotations omitted)). 3 Additionally, “as a general principle, the United States Supreme Court has recognized 4 that an administrative agency is bound on remand to apply the legal principles laid down by the 5 reviewing court.” Ischay v. Barnhart, 383 F.Supp.2d 1199, 1213–1214 (C.D.Cal. 2005); see 6 Sullivan v. Hudson, 490 U.S. 877, 886 (1989) (deviation from the court’s remand order in the 7 subsequent administrative proceedings is itself legal error, subject to reversal on further 8 judicial review). 9 10 11 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 Appeals Council, the procedures explained in [20 C.F.R.] § 404.977 will be followed. 12 20 C.F.R. § 404.983. Under 20 C.F.R. § 404.977, when a case is remanded to the ALJ by the 13 Appeals Council, the ALJ “shall take any action that is ordered by the Appeals Council and 14 may take any action that is not inconsistent with the Appeals Council’s remand order.” 20 15 C.F.R. § 404.977. On remand, the ALJ must follow the specific instructions of the reviewing 16 court. See Samples v. Colvin, 103 F. Supp. 3d 1227, 1231–32 (D. Or. 2015). 17 Here, upon a prior appeal, this Court entered an order on December 8, 2014, adopting 18 the Report and Recommendation of United States Magistrate Judge James P. Donohue that the 19 case should be reversed and remanded for further administrative proceedings. See AR at 70120 02. The Report and Recommendation stated that the Commissioner should further develop the 21 medical record regarding plaintiff’s mental health treatment because treatment notes from 22 sources who provided opinions regarding plaintiff’s functioning were missing from the record. 23 See AR at 697-98. The Report and Recommendation stated that this development of the 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 7 1 medical record may require reevaluation of the medical opinion evidence. See AR at 698. 2 Accordingly, the Appeals Council remanded the case to an ALJ “for further proceedings 3 consistent with the order of the [C]ourt.” See AR at 710. 4 The Commissioner concedes that the record was not further developed but argues that 5 the record had been adequately developed to resolve the case because it was “replete with the 6 opinions of medical health professionals regarding plaintiff’s mental health.” See Dkt. 13 at 2- 7 3. However, the Court’s remand order did not concern the amount of medical opinions in the 8 record; the order stated that the record needed to be developed with missing treatment notes to 9 allow for proper evaluation of the medical opinions that were already in the record. See AR at 10 697-98. Both ALJs discounted the opinions of several treatment providers in their respective 11 decisions because the opinions were not supported by objective findings. See AR at 31, 556- 12 57. The Court noted in its order that treatment notes from weekly counseling, which would 13 contain such objective findings, were missing from the record. See AR at 697-98. Therefore, 14 the ALJ committed legal error in the most recent decision by failing to follow the Court’s order 15 instructing the Commissioner to develop the record with the missing treatment notes. 16 “[H]armless error principles apply in the Social Security context.” Molina v. Astrue, 17 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial 18 to the claimant or “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout 19 v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 F.3d at 20 1115. The determination as to whether an error is harmless requires a “case-specific 21 application of judgment” by the reviewing court, based on an examination of the record made 22 “‘without regard to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d 23 at 1118-19 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009)). Here, if the ALJ followed 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 8 1 the Court’s order and developed the record, the ALJ may have given more weight to the 2 opinions of the treatment providers, the RFC may have included additional limitations, and the 3 ultimate disability determination may have changed. Therefore, the ALJ’s error is not 4 harmless. 5 The Commissioner argues that any failure to develop the record was harmless because 6 examining physician Wayne Dees, Psy.D., testified that he believed plaintiff to be malingering. 7 See Dkt. 13 at 2-3, 5. However, the ALJ must weigh the totality of the medical evidence; no 8 one medical opinion is necessarily dispositive. See Reddick v. Chater, 157 F.3d 715, 722 (9th 9 Cir. 1998); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (more weight is generally given 10 to a treating physician’s opinion than to the opinions of those who do not treat the claimant). 11 B. Scope of Remand 12 Plaintiff also argues that the ALJ erred in evaluating the medical evidence in the record. 13 See Dkt. 12 at 5-13. The ALJ stated that the Court’s order “did not disturb” the prior ALJ’s 14 decision regarding the opinions of several treatment providers. See AR 556. However, the 15 Court did not affirm the ALJ’s evaluation of those opinions because further development of the 16 record with treatment notes could require reevaluation of the medical opinion evidence. See 17 AR at 697-98. As discussed above, the ALJ committed legal error by failing to follow the 18 Court’s order and develop the record. See supra § VI.A. Therefore, the Commissioner should 19 weigh the medical evidence upon remand after further development of the record. 20 The Court may remand this case “either for additional evidence and findings or to 21 award benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the 22 Court reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to 23 remand to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 9 1 F.3d 587, 595 (9th Cir. 2004) (citations omitted). Thus, it is “the unusual case in which it is 2 clear from the record that the claimant is unable to perform gainful employment in the national 3 economy,” that “remand for an immediate award of benefits is appropriate.” Id. Benefits may be awarded where “the record has been fully developed” and “further 4 5 administrative proceedings would serve no useful purpose.” Smolen, 80 F.3d at 1292; Holohan 6 v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded 7 where: 8 9 10 (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 11 Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 12 2002). Here, issues still remain regarding conflicts in the evidence about plaintiff’s functional 13 capabilities and his ability to perform other jobs existing in significant numbers in the national 14 economy despite any additional limitations. Accordingly, remand for further consideration is 15 warranted in this matter. 16 17 VII. CONCLUSION For the foregoing reasons, the Court finds that the ALJ erred by failing to follow the 18 Court’s order and develop the record. The decision of the Commissioner is REVERSED, and 19 this matter is REMANDED for further proceedings not inconsistent with this Order. 20 21 22 Dated this 23rd day of February, 2017. A Robert S. Lasnik United States District Judge 23 24 ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS - 10

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