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April L. v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

January 22, 2019

APRIL L., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          ANN AIKEN UNITED STATES DISTRICT JUDGE

         April L. ("Plaintiff) brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied Plaintiffs application for Supplemental Security Income ("SSI") on June 28, 2018. For the reasons set forth below, the Commissioner's decision is AFFIRMED, and the case is DISMISSED.

         BACKGROUND

         Plaintiff filed an application for SSI on February 26, 2016. Because he was a minor when he filed his application, the Commissioner initially adjudicated his case under the child disability standards as well as the adult disability standards. Plaintiff alleged disability due to ADHD, depressive disorder, bipolar disorder, neurodevelopmental disorder, PTSD, sleep problems, migraine headaches, and obesity in his SSI application. Plaintiff subsequently amended his disability onset date to April 7, 2016, the date of his 18th birthday.

         The application was initially denied on May 16, 2016 and upon reconsideration on September 26, 2016. An administrative hearing was held before an administrative law judge ("ALJ") at Plaintiffs request on June 13, 2017 where Plaintiff and a vocational expert ("VE") testified, subsequent to which the ALJ issued an unfavorable decision. After the Appeals Council declined review, the ALJ's decision became final. Plaintiff now seeks review of the ALJ's decision.

         STANDARD OF REVIEW

         42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration's disability determinations: "The court shall have power to enter ... a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." In reviewing the ALJ's findings, district courts act in an appellate capacity not as the trier of fact. Fair v. Bowen, 885 F.2d 597, 604 (9th Circ. 1989). The district court must affirm the ALJ's decision unless it contains legal error or lacks substantial evidentiary support. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing Stout v. Comm 'r of Soc. Sec, 454 F.3d 1050, 1052 (9th Cir, 2006)). Harmless legal errors are not grounds for reversal. Bnrch v, Bamhart, 400 F.3d 676, 679 (9th Cir. 2005), "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Gutierrez v. Comm'r of Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014) (citation and internal quotation marks omitted). The complete record must be evaluated and the evidence that supports and detracts from the ALJ's conclusion must be weighed. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001), If the evidence is subject to more than one interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may not substitute its judgment for that of the Commissioner." Edhmdv. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

         COMMISSIONER'S DECISION

         The initial burden of proof rests upon the Plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the Plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A).

         To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential analysis, determining: "(1) whether the claimant is 'doing substantial gainful activity'; (2) whether the claimant has a 'severe medically determinable physical or mental impairment' or combination of impairments that has lasted for more than 12 months; (3) whether the impairment 'meets or equals' one of the listings in the regulations; (4) whether, given the claimant's 'residual functional capacity,' the claimant can still do his or her 'past relevant work' and (5) whether the claimant 'can make an adjustment to other work.'" Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 20 C.F.R. §§ 404.1520(a), 416.920(a)).

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged disability onset date, At step two, the ALJ found that Plaintiff had the following severe limitations: "[a] depressive, bipolar or related disorder; an anxiety disorder; a neurodevelopmental disorder; and [PTSD]." Tr. 13. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment.

         The ALJ then assessed Plaintiffs residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(e); § 416.920(e). The ALJ found that Plaintiff

has the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: He is limited to simple, routine tasks consistent with occupations with an SVP of 1 or 2 and a general education development (GED) level not exceeding 2. He should have no public contact. He is limited to work involving no more than superficial coworker contact and no teamwork.

Tr. 14-15. At step four, the ALJ found that Plaintiff had no past relevant work experience. At step five, the ALJ considered Plaintiffs age, education, work experience, and RFC and found that there were other jobs existing in significant numbers in the national economy that Plaintiff could perform, including janitor, laboratory helper, and re cycler/reclaimer. Accordingly, the ALJ found that Plaintiff was not disabled under the Act.

         DISCUSSION

         Plaintiff contends that the ALJ committed four harmful errors: (i) failing to admit and consider the medical source statement of PMHNP Rebekah Phillips, and in his related duty to develop the record; (ii) failing to incorporate Plaintiffs adaptation limitations into his RFC assessment; (iii) failing to properly weigh the opinions of Charlene Sabin, M.D., Scott Alvord, Psy. D., Tasha Miniszewski, LCSW, as well as the opinions of Drs. Scott Kaper and Ben Kessler, the State psychological consultants; and (iv) failing to properly evaluate Plaintiffs testimony and that of his mother, Kimberly L.

         I. Admitting the Questionnaire and the ALJ's Duty to Develop the Record

         Rebekah Phillips, PMHNP, is Plaintiffs treating mental healthcare provider. Plaintiff submitted a partially-completed questionnaire by Ms. Phillips that opined on the severity of Plaintiffs impairments and limitations the day before his administrative hearing. The ALJ rejected the questionnaire under 20 C.F.R. § 416.1435(b) because he found that it was not submitted in a timely manner, i.e., at least five business days before the hearing.

         Plaintiff argues that (1) the exclusion of the questionnaire was improper because the ALJ failed to apply the good cause exception to late evidentiary submissions under § 416.1435(b)(3) and (2) the exclusion violates an ALJ's duty to develop the record. The Commissioner concedes that the ALJ erred in not admitting Ms. Phillips's opinion statement but argues that the exclusion was harmless because the opinion was not probative and that it was substantially similar to the opinion submitted by Ms. Miniszewski, LCSW, which the ALJ considered.

         On December 16, 2016, the Social Security Administration adopted, among other provisions, 20 C.F.R. § 416.1435(b). 81 Fed. Reg. 90987-01. This provision requires claimants to submit relevant evidence or notify the Commissioner that relevant evidence is outstanding, at least five days before the claimant's hearing. If the claimant's failure to timely submit the evidence is attributable to good cause, however, the ALJ must admit the evidence into the record. See 20 C.F.R. § 416.1435(b). The provision went into effect on January 17, 2017 and the Commissioner required compliance with the provision from May 1, 2017 onward. 81 Fed. Reg. 90987-01.

         Both parties agree that the ALJ should have admitted the questionnaire into the record. I agree as well. Plaintiff sent a letter to the ALJ on May 25th, 2017 that she anticipated submitting further evidence, and possibly less than five business days prior to the hearing, Several pieces of written evidence were anticipated, including evidence identified as a "questionnaire" sent to Dr. Sabin for her to complete. On June 12, 2017, less than five business days prior to hearing, Plaintiff submitted a questionnaire from Ms. Phillips, PMHNP-the questionnaire simply had Dr. Sabin's name crossed out on the top left corner with Ms. Phillips's name substituted in. Although Dr. Sabin did not complete the questionnaire, Ms. Phillips's questionnaire is clearly the questionnaire that Plaintiff had referenced in the May 25, 2017 letter to the Commissioner. The ALJ did not inform Plaintiff that the evidence was excluded, and Plaintiff therefore did not provide an explanation for its late submission. It appears that either Plaintiff was unaware that the questionnaire should have been directed to Ms. Phillips, and mistakenly addressed it to Dr. Sabin, or that the hospital made a judgement call that Ms. Phillips would be the more appropriate professional to fill out the questionnaire. Either way, and in the light of the fact that Commissioner is conceding the error, I find that the ALJ should have admitted the questionnaire under the good cause exception in § 416.1435(b)(3) and failure to do so was error.

         Next, I consider whether the ALJ's error was also a violation of his duty to develop the record.

         Plaintiff states that "Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) requires an ALJ to develop the record where it is either ambiguous or incomplete; but a specific finding of ambiguity or incompleteness is riot required." PL's Br. 4 (emphasis added). Plaintiff then argues that "because there is no evidence in the record as to whether any of the exceptions outlined in 20 C.F.R. § 416 1435(b) might apply, the record is patently incomplete." Id. Plaintiff also seems to argue that he was misled by the ALJ because the ALJ failed to inform Plaintiffs counsel that Ms. Phillips's questionnaire was excluded from the record, which Plaintiff also believes violates the duty to develop the record.

         ALJs have an independent duty to fully and fairly develop the record, whether or not the claimant is represented by counsel. Smolen v. Chafer, 80 F, 3d 1273, 1283 (9th Cir. 1996). However, the duty is heightened if a claimant is not represented by counsel. Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). This duty is only triggered when the evidence is ambiguous or when the record is inadequate to properly evaluate the evidence. Mayes, 276 F.3d at 459-60; see also Mcleod v. Astrue, 640 F.3d 881, 884 (9th Cir. ...


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