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Church v. Colvin

United States District Court, D. Oregon

February 5, 2014

ANN MARIE CHURCH, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

OPINION AND ORDER

MICHAEL J. McSHANE, District Judge.

Plaintiff, Ann Marie Church, brings this action for judicial review of the Commissioner's decision denying plaintiff's application for disability insurance benefits under Title II of the Social Security Act. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

Plaintiff Church seeks disability insurance benefits as of July 1, 2004. for disability resulting from multiple factors and conditions including hypothyroidism, obesity, fibromyalgia, fatigue, Hashimoto's Disease, PTSD, and depression. [#2, 12, and 18[1]. Ms. Church filed applications for supplemental security income (SSI) and disability insurance benefits on April 1, 2009. (Tr. 121-27, 138)[2]. Her eligibility for Title II disability benefits ended on December 31, 2009, which was the date she was last insured. (Tr. 138). Church's SSI claim was denied on April 8, 2009 because her resources exceeded the maximum cutoff. (Tr. 65). Church's Title II claim for disability insurance was denied initially on July 2, 2009 (Tr. 77) and upon reconsideration on August 26, 2009. (Tr. 83). On September 29, 2009, Church requested a hearing before an administrative law judge (ALJ). (Tr. 87). Church appeared and testified at a hearing held on October 7, 2010 and was represented by counsel (Brad Myler & Associates of Lehi, Utah) at that time. (Tr. 28-60). On October 14, 2010, the ALJ (Richard A. Say) issued a decision concluding that although Church's impairments prevented her from returning to her past work, she was not disabled because she could still perform less demanding work. (Tr. 21-32).

On May 9, 2012, the Appeals Council declined Church's request to review the ALJ's decision. (Tr. 1, 4). On July 10, 2012, Church sent a letter to the Appeals Council stating she was no longer represented by counsel and that her previous attorney had not submitted all of her medical records to the ALJ. (Tr. 3). There were approximately 130 pages of missing records including evaluations by Julia Speer, LPC [#18-1], Western Psychological and Counseling Services [#18-2], Dr. Bob Sklovsky [#18-3], and Kaiser Permanente [#18-4]. On July 11, 2012, before the Appeals Council could respond, Church filed this action for review of the Commissioner's decision. [#2].

After not being able to find another attorney to take her case at this level, Church filed her pro se Complaint [#2] on July 11, 2012 and her Plaintiffs Brief [#18] on October 1, 2013. As the Defendant's Brief correctly points out, "this Court has a duty to liberally construe Plaintiffs prose brief." Erickson v. Pardus, 551 U.S. 89, 94 (2007). [#20 at page 12].

In her liberally construed pro se Complaint [#2] and Plaintiffs Brief [# 18], Church argues that the ALJ and Appeals Council ruled in error because they were not aware of the aforementioned 130 pages of missing medical records when their rulings were made, and therefore a complete evaluation was never made. [#18]. In addition, Church argues that the ALJ's decision was in error and not based on substantial evidence because of the ALJ's failing to properly evaluate the medical evidence of record in regards to her PTSD and other ailments, failing to give full credit to the opinions of Dr. Jimenez, failing to give clear and convincing reasons for rejecting plaintiffs own testimony, and failing to properly assess and prove that Church was able to do "other work" (adequate hypotheticals) in the national economy. [#2, 18].

The Defendant's Brief [#20] construes the Plaintiffs arguments as presenting the following three (3) issues:

1. Whether substantial evidence supports the ALJ's conclusion that Plaintiff is not a reliable source for determining the most she can do despite her limitations;

2. Whether the ALJ's evaluation of the medical evidence and conclusions about Plaintiffs limitations are supported by substantial evidence; and

3. Whether the evidence Plaintiff submitted to the Court is new and material.

For the following reasons, the decision of the Commissioner of Social Security is REVERSED and the case is REMANDED for further proceedings and a new decision.

STANDARD OF REVIEW

As the Appeals Council denied plaintiffs request for review, the ALJ's written decision became the Commissioner's final decision. 20 C.F.R. § 404.981. This court's review of the Commissioner's final disability determination is limited to evaluating whether the findings are supported by substantial evidence and whether the decision is free of harmful legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012).

Substantial evidence constitutes "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 1110 (internal quotation marks omitted). To determine whether substantial evidence exists, the Court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).

The court may not reweigh evidence or make credibility determinations in evaluating whether a decision is supported by substantial evidence; "if evidence exists to support more than one rational interpretation, the Court must defer to the Commissioner's decision." Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). The decision whether to remand a case for additional evidence, or simply to award benefits is within the discretion of the court. Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)).

DISCUSSION

I. The Additional Evidence Plaintiff Submitted to the Court is New and Material

The record thus far lacks a degree certainly for this court to be able to render a clear determination. This is due to there being approximately 130 pages of missing records which were never considered, including evaluations by Julia Speer, LPC [#18-1], Western Psychological and Counseling Services [#18-2], Dr. Bob Sklovsky [#18-3], and Kaiser Permanente, [# 18-4]. Without inclusion of these records, neither the ALJ nor the Appeals Council had a complete picture of Church's medical issues. Accordingly, remand for further proceedings under Sentences 4 and 6 of 42 U.S.C. § 405(g) are necessary to properly evaluate these records.

Sentence 4 of 42 U.S.C. § 405(g) states the following:

The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.

Sentence 6 of 42 U.S.C. § 405(g) states the following:

The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, and it may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Commissioner of Social Security shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm the Commissioner's findings of fact or the Commissioner's decision, or both, and shall file with the court any such additional and modified findings of fact and decision and, in any case in which the Commissioner has not made a decision fully favorable to the individual, a transcript of the additional record and testimony upon which the Commissioner's action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision.

Taking the plaintiffs word at face-value, it appears Church was promised that these records would be reviewed by the Appeals Council and that she did everything she was told to do in order to make that happen. Specifically, Plaintiff states that she was "assured [by her Utah attorneys] that they had all the necessary records" to present to the ALJ [# 18 at page 1]. In fact they had not submitted all of her medical records to the ALJ, but the Plaintiff did not become aware of this until "after the last denial when I was told they [the Utah attorneys] would no longer be representing me." [# 18]. Plaintiff then went to great lengths to receive her missing records from her former attorneys. Once she had them, Plaintiff called the Social Security office in Falls Church, VA. This office "agreed to take another look at [Plaintiffs] case" and told her to "send the missing medical records" through her local office in Oregon City, Oregon. [ Id at page 2]. Plaintiff attempted to do as she was told, but the office in Oregon City "refused to accept [Plaintiffs] medical records." [ Id ]. An Oregon City office employee also told the Plaintiff that she needed to file this action in Federal Court right away or she would "miss the deadline" and her "case would then be over." [ Id ]. Plaintiff then "reluctantly did so." [ Id ]. After doing so, Plaintiff was then contacted by the Falls Church office and told "they could not take another look now since [Plaintiff] did not send the missing medical records... and since [Plaintiff] filed in Federal Court... since being in Federal Court prevents them from taking another look." [ Id ].

Plaintiff Church did everything she was told to do by employees of the Social Security Administration and was promised that her missing medical records would be evaluated. Church was misled and/or misguided through no fault of her own.

Since these records have never been reviewed, despite Church's painstaking attempts to have them included, this Court considers them "new." Since they are rather voluminous and pertinent, in that they address Church's medical conditions directly, this court considers them "material." But an ALJ is in a far better position than this court to determine the impact and credibility of these records. There may be evidence in the records to which the Secretary can point to provide the requisite specific and legitimate reasons for disregarding these new records. Then again, there may not be. Either way, the Secretary is in a much better position than this court to perform this task. Since these records were not before the ALJ or the Appeals Council, prudent discretion dictates remand for further proceedings.

II. All Other Issues Are Not Yet Ripe

The remaining issues are not ripe for discussion at this time. These issues include whether substantial evidence supports the ALJ's conclusion that Plaintiff was not a reliable source for determining the most she could do despite her limitations, whether Church's testimony was credible, whether the ALJ's evaluation of the medical evidence and conclusions about Plaintiffs limitations are supported by substantial evidence, whether the ALJ improperly rejected the opinions of Dr. Jimenez, and whether or not the ALJ failed to evaluate the medical evidence pertaining to Church's PTSD and other ailments. [#2 and #18].

This Court will retain jurisdiction under Sentence 6 of 42 U.S.C. § 405(g), to decide these unaddressed issues and any others which may emerge from the further proceedings, in the event that Plaintiffs claim is again denied after the further proceedings and she still wishes to appeal to this Court.

CONCLUSION

The ALJ's findings that Ms. Church was not entitled to disability insurance benefits under Title II of the Social Security Ad was based upon an incomplete record. Therefore, pursuant to Sentences 4 and 6 of 42 U.S.C. § 405(g), the decision of the Commissioner of Social Security is REVERSED and the case is REMANDED for further proceedings and a new decision.

IT IS SO ORDERED.


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