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Almarez v. Astrue

September 30, 2010


The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge


Plaintiff filed a Complaint on February 2, 2009, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for supplemental security income ("SSI"). On March 11, 2009, the parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties filed a Joint Stipulation on September 22, 2009 ("Joint Stip."), in which: plaintiff seeks an order reversing the Commissioner's decision and remanding the matter for further administrative proceedings; and defendant seeks an order affirming the Commissioner's decision. The Court has taken the parties' Joint Stipulation under submission without oral argument.


Plaintiff filed her application for SSI on August 1, 2001. (Administrative Record ("A.R.") 103-04.) Plaintiff claims to have been disabled since April 27, 2001, due to carpal tunnel syndrome, shoulder and knee pain, arthritis, asthma, and a head injury. (A.R. 113-25, 130-31, 134.)

Plaintiff's application was denied initially and upon reconsideration (A.R. 21-22, 33-42), and she requested a hearing (A.R. 43). On May 22, 2003, plaintiff, who was unrepresented, testified at a hearing before Administrative Law Judge Jacqueline Drucker.*fn1 (A.R. 348-91.) In a September 26, 2003 written decision, Administrative Law Judge Drucker denied plaintiff's claim. (A.R. 26-32.) Plaintiff sought review. (A.R. 76.) On February 1, 2005, the Appeals Council granted review, vacated the September 2003 decision, remanded the case to an ALJ, and directed the ALJ to: (1) assess the credibility of plaintiff's subjective complaints; (2) address the consultative examiner's opinion regarding the amount of weight plaintiff could lift with her right upper extremity; (3) address the effect of plaintiff's mental impairment, including memory problems, on her residual functional capacity ("RFC"); and (4) if plaintiff was found disabled, consider the materiality of plaintiff's chronic alcohol abuse and conduct any further appropriate inquiry. (A.R. 88-89.)

On May 4, 2005, plaintiff, who then was represented by counsel, appeared at a hearing before Administrative Law Judge Jay Levine (the "ALJ"). (A.R. 392-425.) In a September 22, 2005 decision, the ALJ denied plaintiff's claim. (A.R. 12-16.) The Appeals Council subsequently denied plaintiff's request for review of that decision. (A.R. 4-6.)

On February 8, 2006, plaintiff filed an action in this district court -- Case No. EDCV 06-00150-MAN --- seeking judicial review of the ALJ's September 22, 2005 decision. (A.R. 467.) On September 28, 2007, the Court reversed the ALJ's decision and remanded the case for further proceedings consistent with the Court's Order, as discussed infra (the "2007 Order"). (A.R. 467-84.) On October 15, 2007, the Appeals Council vacated the ALJ's decision and remanded the case for further proceedings consistent with the 2007 Order. (A.R. 487.)

On April 30, 2008, plaintiff, who was represented by counsel, testified at a hearing before the ALJ. (A.R. 436-52.) On October 16, 2008, the ALJ again denied plaintiff's claim. (A.R. 429-35.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995). "Where the evidence as a whole can support either a grant or a denial, [a federal court] may not substitute [its] judgment for the ALJ's." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009)(citation and internal punctuation omitted).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004)("if evidence exists to support more than one rational interpretation, we must defer to the Commissioner's decision"). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Tommasetti, 533 F.3d at 1038; Burch, 400 F.3d at 679.


Plaintiff alleges that the ALJ failed to comply with the 2007 Order and properly consider the relevant medical evidence of record. (Joint Stip. at 4.) As discussed below, plaintiff contends that the ALJ erred in three respects. First, plaintiff argues that the ALJ failed to comply with this Court's directive to consider and analyze adequately a "frequent rests" limitation and a lifting limitation imposed by Dr. Tariq Jamil, a consultative examining physician.*fn2 (Id. at 4-7.) Second, plaintiff complains that the ALJ, without explanation, altered his prior RFC assessment in a manner unfavorable to plaintiff, i.e., the ALJ omitted certain manipulation limitations he previously had found to be supported by the evidence of record. (Id. at 7-8.) Third, plaintiff contends that the ALJ misstated and ignored the medical expert's testimony in concluding that plaintiff did not meet or equal a listed impairment for a one-year period of time. (Id. at 5.)

I. The ALJ Erred By Failing To Comply With, And Exceeding The Scope Of, The 2007 Order

In the 2007 Order, the Court found that "[t]he ALJ offered no reason for his implicit rejection of" two functional limitations noted by Dr. Jamil. (A.R. 476.) Specifically, Dr. Jamil opined that plaintiff is limited to lifting 10 pounds occasionally and frequently, and standing and walking up to 4 hours in an 8-hour workday with frequent rests. (A.R. 297, 475.) In his 2005 decision, the ALJ found that plaintiff has the RFC to perform a limited range of light work (A.R. 13), a category that requires the ability to lift up to 20 pounds occasionally,*fn3 as well as sedentary work, a category that would encompass Dr. Jamil's 10-pound lifting limitation.*fn4 Although the ALJ acknowledged Dr. Jamil's 10-pound lifting limitation (A.R. 14), the ALJ failed to address it further and implicitly rejected it, given the light work RFC assessment he made (A.R. 13-15). The ALJ also found that plaintiff is limited to walking no more than 4 hours out of an 8-hour workday, without limitation. (A.R. 13.) Again, although the ALJ acknowledged Dr. Jamil's "frequent rests" limitation (A.R. 14), the ALJ omitted it from plaintiff's RFC without explanation and, thus, implicitly rejected it (A.R. 13-15).

The Court concluded that the "ALJ's failure to address clearly and either accept and reject" both the 10-pound lifting limitation and the "frequent rests" limitation imposed by Dr. Jamil constituted reversible error. (A.R. 476-77.) Accordingly, pursuant to the 2007 Order, the Court remanded the case "to allow the ALJ the opportunity to correct the above errors." (A.R. 483.) In its subsequent order of remand, the Appeals Council vacated the ALJ's decision and remanded the case "for further proceedings consistent with the" 2007 Order. (A.R. 487.)

A. The Law Of The Case And Rule Of Mandate Doctrines

In Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248 (1989), the Supreme Court observed:

Where a court finds that the [Commissioner] has committed a legal or factual error in evaluating a particular claim, the district court's remand order will often include detailed instructions concerning the scope of the remand, the evidence to be adduced, and the legal or factual issues to be addressed. . . . Deviation from the court's remand order in the subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review.

Id. at 885-86, 109 S.Ct. at 2254-55 (citations omitted). Citing the Supreme Court's observation and other precedent, district courts in the Ninth Circuit and elsewhere have applied the law of the case doctrine and the rule of mandate doctrine*fn5 in the social security context to find reversal warranted when ALJ decisions exceed the scope of and/or contravene district court remand orders.

In Holst v. Bowen, 637 F. Supp. 145 (E.D. Wash. 1986), the ALJ found the claimant disabled for a closed period but not disabled thereafter. The claimant filed a federal action challenging the finding that he was not disabled for the subsequent period. The district court remanded the case for the consideration of several recent Ninth Circuit decisions. Id. at 145-46 & n.1. On remand, the ALJ proceeded through the full five-step sequential evaluation and, based on new evidence considered, found that the claimant had never been disabled. Id. at 146. On appeal, the district court observed that "[n]o one appealed that portion of the decision which held that claimant fully met the disability requirements for the closed period," and "[t]he unambiguous tenor of the order of remand necessarily assumed the validity of the finding that claimant was disabled" during the closed period as previously found by the ALJ. Id. at 146-47. The Court concluded that (9th Cir. 2010); see also Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)(under the law of the case doctrine, "a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical ...

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