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Allen v. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


November 2, 2010

CAROLYN ALLEN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.

The opinion of the court was delivered by: Hon. Jay C. Gandhi United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION AND SUMMARY

On October 13, 2009, plaintiff Carolyn Allen ("Plaintiff") filed a complaint against defendant Michael J. Astrue ("Defendant" or "Commissioner"), seeking review of a denial of supplemental security income benefits ("SSI"). [Docket No. 3.]

On March 2, 2010, Defendant filed his answer, along with a certified copy of the administrative record. [Docket Nos. 16, 17, 18.]

On April 14, 2010, this matter was transferred to the calendar of the undersigned Magistrate Judge. [Docket No. 19.] Both Plaintiff and Defendant subsequently consented to proceed for all purposes before the Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Docket Nos. 22, 25.]

Pursuant to an October 14, 2009 case management order, the parties submitted a detailed, 26-page joint stipulation for decision on May 5, 2010. [Docket No. 24.] The Court deems the matter suitable for adjudication without oral argument.

In sum, having carefully studied, inter alia, the parties' joint stipulation and the administrative record, the Court concludes that the ALJ violated the law of the case doctrine and the rule of mandate doctrine by reassessing Plaintiff's residual functional capacity as it relates to her physical limitations; Plaintiff's physical limitations were established by prior decisions and not subject to revisitation. The Court thus remands this matter to the Commissioner in accordance with the principles and instructions enunciated in this Memorandum Opinion and Order.

II. PERTINENT FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, who was 51 years of age on the date of her first administrative hearing, has a high school education. (Administrative Record ("AR") at 80, 508, 685.) Her past relevant work includes employment as an assignment clerk. (Id. at 103, 623.)

Plaintiff filed for SSI on November 29, 2002, alleging that she has been disabled since August 13, 1997 due to arthritis, high blood pressure, pancreatitis, back and leg impairments, insomnia, depression, stress, and pain. (AR at 62, 80-83.) Plaintiff's application, which was designated as a "prototype" case,*fn1 was denied on March 14, 2003, after which she filed a timely request for a hearing. (Id. at 61, 62-65, 66.)

On September 25, 2003, Plaintiff, represented by counsel, appeared and testified at a hearing before an Administrative Law Judge ("ALJ"). (AR at 508, 510-19, 521-22.) A vocational expert ("VE") also testified. (Id. at 519-21.) On December 3, 2003, the ALJ issued an unfavorable decision denying Plaintiff's request for benefits ("December 2003 Decision"). (Id. at 37-42.)

Plaintiff appealed the December 2003 Decision, which appeal was denied. (AR at 5-8, 32.) Plaintiff then sought review in this Court, Case No. CV 04-8377 MLG, seeking review of the Commissioner's decision denying her claim. (Id. at 557.) On July 6, 2005, the Court remanded the case for further proceedings and directed the ALJ to properly consider the opinions of Plaintiff's examining psychiatrist Barry Edelman, M.D. ("Dr. Edelman") and non-examining physician C.H. Dudley, M.D. ("Dr. Dudley"). (Id. at 557-65 ("Court's July 6, 2005 Order").) On August 19, 2005, the Appeals Council issued an order remanding the action to the ALJ. (Id. at 569.)

On April 4, 2006, a second administrative hearing was held. (AR at 598.) No testimony was taken at the hearing. (See id. at 600-02.)

On September 8, 2006, the ALJ denied Plaintiff's request for benefits ("September 2006 Decision"). (AR at 530-36.) Plaintiff again sought review in this Court. (Joint Stip. at 3.) On September 18, 2007, the parties entered into a stipulation for remand of the action to the Commissioner for further administrative proceedings, which was ordered by the Court. (AR at 642-44, 648-49, 650-51.) The parties stipulated to a finding that Plaintiff was disabled as of January 1, 2006, and directed the ALJ to comply with the Court's July 6, 2005 Order with respect to the period prior to January 1, 2006. (Id. at 643.) On October 26, 2007, the Appeals Council issued an order remanding the action to a new ALJ. (Id. at 647.)

On April 8, 2009, Plaintiff, represented by counsel, appeared and testified at a third hearing before an ALJ. (AR at 678, 685-91.) Nick Korso, a VE, also testified. (Id. at 691-93.)

On May 27, 2009, more than six years after her initial application, the ALJ issued a partially favorable decision, in which she found Plaintiff disabled as of January 1, 2006. (AR at 612-26.) The ALJ denied Plaintiff's application for the period prior to January 1, 2006. (Id. at 613, 625.)

Applying the five-step sequential evaluation process, which is discussed in detail below, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity since her SSI application date. (AR at 615.)

At step two, the ALJ found that Plaintiff suffers from "hypertension, low back pain, degenerative disc disease, status post right foot surgery and chronic pancreatitis," (AR at 615 (emphasis omitted)), but concluded that Plaintiff's "medically determinable mental impairment of depression does not cause more than minimal limitation in [Plaintiff's] ability to perform basic mental work activities and is therefore non-severe." (Id. at 616.)

At step three, the ALJ determined that, prior to January 1, 2006, the evidence does not demonstrate that Plaintiff's impairments, either individually or in combination, meet or medically equal the severity of any listing set forth in the Social Security regulations.*fn2 (AR at 619, 625.) The ALJ then assessed Plaintiff's residual functional capacity*fn3 ("RFC") and determined that Plaintiff has the "capacity to perform medium work . . . with occasional stooping, crouching and kneeling." (Id. at 619 (emphasis omitted).)

The ALJ found, at step four, that Plaintiff lacks the ability to perform her past relevant work. (AR at 623.)

At step five, based on Plaintiff's RFC and the VE's testimony, the ALJ found that "there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform," including hand packager and assembler. (AR at 624-25.) Thus, the ALJ concluded that Plaintiff was not suffering from a disability as defined by the Act prior to January 1, 2006. (Id. at 625.)

Plaintiff did not file a request for review by the Appeals Council of the ALJ's decision. (Joint Stip. at 4.) The ALJ's decision stands as the final decision of the Commissioner.

III. APPLICABLE LEGAL STANDARDS

A. Five-Step Inquiry to Ascertain a Cognizable Disability

A claimant must satisfy three fundamental elements to be eligible for disability benefits: (1) a medically-determinable impairment; (2) the impairment prevents the claimant from engaging in substantial gainful activity; and (3) the impairment is expected to result in death or to last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). A well-established five-step sequential inquiry is utilized to assess whether a particular claimant satisfies these three elements. The inquiry proceeds as follows:

First, is the claimant engaging in substantial gainful activity? If so, the claimant cannot be considered disabled.

Second, does the claimant suffer from a "severe" impairment, to wit, one continuously lasting at least 12 months? If not, the claimant is not disabled.

Third, does the claimant's impairment or combination of impairments meet or equal an impairment specifically identified as a disability by the Commissioner under 20 C.F.R. part 404, subpart P, appendix 1? If so, the claimant is automatically determined to be disabled.

Fourth, is the claimant capable of performing his past work? If so, the claimant is not disabled.

Fifth, does the claimant have the so-called "residual functional capacity" to perform some other type of work? The critical question posed here is whether the claimant can, in light of the impairment and his or her age, education and work experience, adjust to another form of gainful employment?

If a claimant is found "disabled" or "not disabled" along any of these steps, there is no need to complete the remaining inquiry. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Tackett, 180 F.3d at 1098-99.

B. Standard of Review on Appeal

This Court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as amended Dec. 21, 2001). If the court, however, determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).

"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).

IV. ISSUES PRESENTED

Two disputed issues are presented for decision here:

1. whether the ALJ failed to comply with the stipulated remand and violated the law of the case and the rule of mandate doctrines, (see Joint Stip. at 7-15, 18-19); and

2. whether the ALJ erred in her evaluation of the psychiatric medical evidence, including the opinions of Drs. Edelman and Dudley. (Id. at 19-21, 24-25.)

Under the circumstances here, the Court finds the issue of the ALJ's failure to comply with the stipulation for remand to be dispositive of this matter, and does not reach the remaining issue.

V. DISCUSSION AND ANALYSIS

Plaintiff, on the one hand, contends that "[f]or the period prior to January 1, 2006, the stipulation for remand required further proceedings to allow the ALJ to comply with the prior remand order of the district court requiring the ALJ to give further consideration to the opinions of Dr. Edelman and Dr. Dudley. At no time was the issue of . . . [the] limitation of [Plaintiff] to sedentary work a contentious issue by either party before the court or a subject of the court's order of remand." (Joint Stip. at 11 (internal citation omitted).) Plaintiff argues that the "ALJ has simply violated the law of the case as well as the rule of mandate." (Id. at 13 (footnote omitted).)

Defendant, on the other hand, maintains that "[n]either of [the prior] remands directed a finding of a physical residual functional capacity for sedentary work beginning with Plaintiff's 2002 alleged onset date" and "[t]here needed to be a ruling that the evidence was sufficient to support some finding in order to establish any 'law of the case.'" (Joint Stip. at 16, 17 (emphasis in original and citation omitted).) Further, Defendant counters that "the Agency's regulations provide that, when a case is remanded from Federal District Court, 'any issues relating to the claim may be considered by the administrative law judge whether or not they were raised in the administrative proceedings leading to the final decision in the case." (Id. at 17 (citing 20 C.F.R. § 416.1483) (brackets omitted).) Defendant contends that the ALJ "may take any additional action that is not inconsistent with the Appeals Council's remand order." (Id. (citing 20 C.F.R. § 416.1477).)

Defendant is mistaken.

A. The Law of the Case Doctrine and the Rule of Mandate Doctrine

The United States Supreme Court has explained that when a district 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.

Sullivan v. Hudson, 490 U.S. 877, 885-886 (1989); see Ischay v. Barnhart, 383 F. Supp. 2d 1199, 1213-1217, 1224 (C.D. Cal. 2005) (holding that under the law of the case doctrine and the "broader" rule of mandate, the ALJ abused his discretion by going beyond the step-five issue identified in the district court's remand order, taking evidence on additional issues, "produc[ing] a third decision out of whole cloth," and denying benefits on remand at step four when the remand order did not authorize the ALJ "to disturb or revisit" his step-four determination); see also Ruiz v. Apfel, 24 F. Supp. 2d 1045, 1050 (C.D. Cal. 1998) (remanding for further administrative proceedings where the remand order "makes it very plain that the remand was for a limited purpose," and there was "no basis for the ALJ to review issues that had been determined in plaintiff's favor" and not appealed).

"The law of the case doctrine states that the decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case."*fn4

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)). Further, the "doctrine does not require that any issue actually have been adjudicated; rather, it applies to [the court's] explicit decisions as well as those issues decided by necessary implication." Ischay, 383 F. Supp. 2d at 1217 (internal quotation marks, citation and emphasis omitted).

The rule of mandate further prohibits a lower court, upon receiving the mandate of a higher court, from "vary[ing] it or examin[ing] it for any other purpose than execution"; however, "the lower court may consider and decide any matters left open by the mandate of the court." Cote, 51 F.3d at 181-182 (alterations and quotation marks omitted) (quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 256 (1895)).

The Ninth Circuit has identified five circumstances in which the law of the case doctrine, and by analogy the rule of mandate doctrine, need not be applied:

(1) the first decision was clearly erroneous;

(2) an intervening change in the law has occurred;

(3) the evidence on remand is substantially different;

(4) other changed circumstances exist; or

(5) a manifest injustice would otherwise result.

See United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997); Thomas v. Bible, 983 F.2d 152, 155 (9th Cir.), cert. denied, 508 U.S. 951 (1993); Coto v. Astrue, 2008 WL 4642965 at *8 (C.D. Cal. 2008); Ischay, 383 F. Supp. 2d at 1219-20.

B. The RFC Determinations and the Stipulation for Remand Here, in the December 2003

Decision, the ALJ determined that Plaintiff retains the RFC "to perform no more than 'sedentary' work (lifting and carrying up to 10 lbs.)[ and] . . . has mild non-exertional limitations in attention, concentration, understanding, memory, and following directions." (AR at 551 (emphasis added).)

In the September 2006 Decision, approximately three years later, the ALJ again determined that Plaintiff retains the RFC "to perform no more than 'sedentary' work (lifting and carrying up to 10 lbs.)[ and] . . . has mild non-exertional limitations in attention, concentration, understanding, memory, and following directions." (AR at 535 (emphasis added).)

On September 18, 2007, the parties stipulated to a finding that Plaintiff was disabled as of January 1, 2006, and directed the ALJ to comply with the Court's July 6, 2005 Order with respect to the period prior to January 1, 2006. (AR at 642-43.) Specifically, the stipulation for remand directed the ALJ to "comply with the prior remand orders by the District Court and Appeals Council. The ALJ will give further consideration to the opinions of Drs. Edelman and Dudley. Given that Plaintiff has non-exertional limitations, the ALJ will obtain vocational expert evidence to determine whether she can perform her past relevant work or other work existing in the national economy." (Id. at 643.)

The Court's July 6, 2005 Order determined that the ALJ's "consideration of the medical evidence is not supported by substantial evidence" and found that "[r]emand is appropriate for the ALJ to further evaluate the opinions of Dr. Edelman and Dr. Dudley and to make appropriate findings." (AR at 563, 565.) Dr. Edelman and Dr. Dudley's opinions relate only to Plaintiff's non-exertional mental limitations. (See id. at 560-65.)

On October 26, 2007, following the stipulation for remand, the Appeals Council issued an order remanding the action to a new ALJ. (AR at 647.) In particular, the Appeal Council vacated "the final decision of the Commissioner" and remanded "this case to an [ALJ] for further proceedings consistent with [the stipulation for remand]." (Id.)

In the most recent ALJ decision, however, the ALJ determined that Plaintiff retains the RFC "to perform medium work . . . with occasional stooping, crouching and kneeling." (AR at 619 (emphasis omitted).)

C. The ALJ Violated the Law of the Case and the Rule of Mandate

The ALJ committed legal error by deviating from the stipulation for remand. At least two reasons govern this decision.

First, the RFC finding limiting Plaintiff to "sedentary work" addressed by the first two ALJ opinions was the law of the case, and thus could not be altered by the ALJ on remand. The RFC findings relating to Plaintiff's physical limitations made in the December 2003 Decision and the September 2006 Decision were not appealed by the parties and, of course, not considered by the Court's July 6, 2005 Order. Moreover, the September 18, 2007 stipulation for remand "necessarily assumed the validity" of Plaintiff's limitation to "sedentary work," as it sought clarification only on the evaluation of medical evidence regarding Plaintiff's mental limitations. Coto, 2008 WL 4642965, at *5.

Second, the ALJ violated the rule of mandate by failing to adhere to the confines of the stipulation for remand. The stipulated remand did not authorize the ALJ to re-examine Plaintiff's RFC with respect to her physical limitations. (See generally AR at 642-43; see also id. at 557-65.) Instead, the stipulation for remand provided only that remand was necessary for the ALJ to reconsider the opinions of Drs. Edelman and Dudley and obtain additional evidence on one narrow issue -- Plaintiff's mental impairment. The remand explicitly directed the ALJ to "comply with the prior remand orders by the District Court and Appeals Council." (Id. at 643).

The Court's July 6, 2005 Order addressed the ALJ's improper evaluation of the opinions of Drs. Edelman and Dudley. (See AR at 557-65.) Drs. Edelman and Dudley only assessed Plaintiff's mental impairments. (Id. at 195-99 (February 21, 2003 complete psychiatric evaluation conducted by Dr. Edelman), 213-03 (March 4, 2003 mental residual functional capacity assessment made by Dr. Dudley).) The accompanying order by the Appeals Council directed compliance with this Court's order. (See id. at 569 ("the Appeals Council vacates the final decision of the Commissioner of Social Security and remands this case to an [ALJ] for further proceedings consistent with the order of the court[]").)

But by limiting Plaintiff only to "medium work," as opposed to "sedentary work," the ALJ expanded Plaintiff's physical RFC and failed to include limitations that were included in the December 2003 Decision and the September 2006 Decision. That is, the ALJ made a new RFC finding with respect to Plaintiff's physical limitations and, notably, a finding that was less favorable to Plaintiff. However, nowhere in the stipulation for remand did the parties contemplate further consideration by the ALJ of Plaintiff's RFC with respect to this issue. Nor did the Appeals Council order vacating the prior decision and remanding the case "for further proceedings consistent with the [stipulation for remand]" suggest that review beyond the scope of the stipulation for remand was permitted or contemplated. (AR at 647; see also id. at 648-51); see Ruiz, 24 F. Supp. 2d at 1050.

Defendant argues that "there is no necessary implication that the previous remands addressed Plaintiff's physical residual functional capacity" and "[t]here needed to be a ruling that the evidence was sufficient to support some finding in order to establish any law of the case." (Joint Stip. at 17 (internal quotation marks and citations omitted) (emphasis in original).)

Defendant's point is not well taken. The law of the case doctrine "does not require that any issue actually have been adjudicated; rather, it applies to this Court's 'explicit decisions as well as those issues decided by necessary implication.'" Ischay, 383 F. Supp. 2d at 1217 (quoting Cote, 51 F.3d at 181) (emphasis in original); see Calderon v. Astrue, 683 F. Supp. 2d 273, 276-77 (E.D.N.Y. 2010) (irrelevant that, in the prior federal action, there had not been an explicit determination regarding the validity of the prior step four findings because in Social Security appeals, a district court is never called upon to address issues resolved in the claimant's favor; the claimant obviously cannot challenge such determinations, and the Commissioner cannot challenge them because they were made by him in the first place; thus, "when a district court passes judgment on, for example, an ALJ's step-five determination, it has implicitly affirmed the determinations at all prior steps[]").

Defendant also maintains that "the Agency's regulations provide that, when a case is remanded from Federal District Court, 'any issues relating to the claim may be considered by the [ALJ] whether or not they were raised in the administrative proceedings leading to the final decision in the case.'" (Joint Stip. at 17 (citing 20 C.F.R. § 416.1483) (alterations omitted and emphasis added).)

However, the issue of Plaintiff's physical limitations is not "related" to Plaintiff's mental limitations. Plaintiff's claim related only to the ALJ's evaluation of the opinions of Drs. Edelman and Dudley, both of whom made psychiatric or mental assessments.

Moreover, Defendant notes that on "remand from the Appeals Council, an ALJ . . . may take any additional action that is not inconsistent with the Appeals Council's remand order." (Joint Stip. at 17 (citing 20 C.F.R. § 416.1477) (internal quotation marks omitted).)

Here, the ALJ's actions are, in fact, inconsistent with the Appeals Council's remand order. The stipulation for remand explicitly stated that the "ALJ will give further consideration to the opinions of Drs. Edelman and Dudley. Given that Plaintiff has non-exertional limitations, the ALJ will obtain vocational expert evidence to determine whether she can perform her past relevant work or other work existing in the national economy." (AR at 643 (emphasis added).) Accordingly, the stipulation for remand contemplated only a reconsideration of non-exertional limitations; the door on Plaintiff's physical limitations was closed. Thus, the ALJ's decision to re-examine Plaintiff's physical RFC and later find, despite prior decisions, that Plaintiff has a greater exertional capacity is irreconcilable with the stipulation for remand and the Appeals Council's order.

Finally, Defendant does not contend, and the Court does not find, that any of the exceptions to the law of the case doctrine and the rule of mandate doctrine should be applied here. The ALJ's prior RFC assessment was not clearly erroneous. There was no intervening change in the law. The medical evidence on remand was the same. There are no other changed circumstances apparent to the Court that would be relevant to the application of the law of the case and the rule of mandate doctrines. No manifest injustice will result from the application of these doctrines under the circumstances presented here.

VI. REMAND IS APPROPRIATE

This Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 F.3d at 1179-80.

In this case, remand is appropriate to allow the ALJ to comply with the stipulation for remand, filed on September 18, 2007, and the Court's September 21, 2007 Order, (AR 642-43, 648-49), remanding this action for further proceedings.*fn5

The ALJ is instructed to take whatever further action is deemed appropriate and consistent with this decision.

Based on the foregoing, IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision.


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