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Joseph M. R. v. Commissioner of Social Security

United States District Court, D. Oregon

September 10, 2019

JOSEPH M. R., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          LAURIE B. MAPES Attorney at Law Attorney for Plaintiff

          BILLY J. WILLIAMS United States Attorney

          RENATA GOWIE Assistant United States Attorney

          OPINION AND ORDER

          ANNA J. BROWN UNITED STATES SENIOR DISTRICT JUDGE

         Plaintiff Joseph M. R. seeks judicial review of the final decision of the Commissioner of the Social Security Administration (SSA) in which the Commissioner denied Plaintiff's applications for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. This Court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

         For the reasons that follow, the Court REVERSES the decision of the Commissioner and REMANDS this matter for the immediate calculation and payment of benefits.

         ADMINISTRATIVE HISTORY

         On April 4, 2017, Plaintiff protectively filed his application for DIB benefits. Tr. 25, 189.[2] Plaintiff initially alleged a disability onset date of July 11, 2008.[3] Tr. 189. Plaintiff's application was denied initially and on reconsideration. An Administrative Law Judge (ALJ) held a hearing on March 23, 2018. Tr. 25, 49-93. Plaintiff and a vocational expert (VE) testified at the hearing, and Plaintiff was represented by an attorney. At the hearing Plaintiff also amended his disability onset date to March 31, 2012. Tr. 25, 56.

         On April 12, 2018, the ALJ issued an opinion in which he found Plaintiff is not disabled and, therefore, is not entitled to benefits. Tr. 25-42. Plaintiff requested review by the Appeals Council. On August 20, 2018, the Appeals Council denied Plaintiff's request to review the ALJ's decision, and the ALJ's decision became the final decision of the Commissioner. Tr. 1-3. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

         On October 15, 2018, Plaintiff filed a Complaint in this Court seeking review of the Commissioner's decision.

         BACKGROUND

         Plaintiff was born on March 11, 1977. Tr. 41, 189. Plaintiff was 35 years old on his alleged amended disability onset date. Plaintiff has a high-school education and attended college. Tr. 41, 81. Plaintiff has past relevant work experience as a caregiver, user-support specialist, and computer-support specialist. Tr. 40.

         Plaintiff alleges disability due to Post-Traumatic Stress Disorder (PTSD), depression, and irritable bowel syndrome (IBS). Tr. 95.

         Except as noted, Plaintiff does not challenge the ALJ's summary of the medical evidence. After carefully reviewing the medical records, this Court adopts the ALJ's summary of the medical evidence. See Tr. 33-37.

         STANDARDS

         The initial burden of proof rests on the claimant to establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). To meet this burden, a claimant must demonstrate his inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The ALJ must develop the record when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)).

         The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Molina, 674 F.3d. at 1110-11 (quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). "It is more than a mere scintilla [of evidence] but less than a preponderance." Id. (citing Valentine, 574 F.3d at 690).

         The ALJ is responsible for evaluating a claimant's testimony, resolving conflicts in the medical evidence, and resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The court must weigh all of the evidence whether it supports or detracts from the Commissioner's decision. Ryan v. Comm'r of Soc. Sec, 528 F.3d 1194, 1198 (9th Cir. 2008). Even when the evidence is susceptible to more than one rational interpretation, the court must uphold the Commissioner's findings if they are supported by inferences reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The court may not substitute its judgment for that of the Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).

         DISABILITY ANALYSIS

         I. The Regulatory Sequential Evaluation

         At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful activity (SGA). 20 C.F.R. § 404.1520(a)(4)(i). See also Keyser v. Comm'r of Soc. Sec, 648 F.3d 721, 724 (9th Cir. 2011).

         At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe impairment or combination of impairments. 20 C.F.R. § 404.1509, 404.1520(a)(4)(ii). See also Keyser, 648 F.3d at 724.

         At Step Three the claimant is disabled if the Commissioner determines the claimant's impairments meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The criteria for the listed impairments, known as Listings, are enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed Impairments).

         If the Commissioner proceeds beyond Step Three, she must assess the claimant's residual functional capacity (RFC). The claimant's RFC is an assessment of the sustained, work-related physical and mental activities the claimant can still do on a regular and continuing basis despite his limitations. 20 C.F.R. § 404.1520(e). See also Social Security Ruling (SSR) 96-8p. "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent schedule." SSR 96-8p, at *1. In other words, the Social Security Act does not require complete incapacity to be disabled. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

         At Step Four the claimant is not disabled if the Commissioner determines the claimant retains the RFC to perform work he has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv). See also Keyser, 648 F.3d at 724.

         If the Commissioner reaches Step Five, she must determine whether the claimant is able to do any other work that exists in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). See also Keyser, 648 F.3d at 724-25. Here the burden shifts to the Commissioner to show a significant number of jobs exist in the national economy that the claimant can perform. Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). The Commissioner may satisfy this burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines (or the grids) set forth in the regulations at 20 C.F.R. part 404, subpart P, appendix 2. If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1).

         ALJ'S FINDINGS

         At Step One the ALJ found Plaintiff has not engaged in substantial gainful activity since March 31, 2012, Plaintiff's alleged disability onset date. Tr. 28.

         At Step Two the ALJ found Plaintiff has the severe impairments of anxiety, depression, and PTSD. Tr.28.

         At Step Three the ALJ concluded Plaintiff's medically determinable impairments do not meet or medically equal one of the listed impairments in 20 C.F.R. part 404, subpart P, appendix 1. Tr. 29. The ALJ found Plaintiff has the RFC to perform a full range of work at all exertional levels with the limitations of simple, repetitive, routine tasks without contact with the general public and only brief, superficial contact with co-workers and peers. Tr. 31.

         At Step Four the ALJ concluded Plaintiff is unable to perform his past relevant work. Tr. 40.

         At Step Five the ALJ found Plaintiff can perform other jobs that exist in the national economy such as laundry worker, industrial cleaner, and dryer attendant. Tr. 42. Accordingly, the ALJ found Plaintiff is not disabled. Tr. 42.

         DISCUSSION

         Plaintiff contends the ALJ erred when he failed (1) to admit the report of Walter Winfree, Ph.D., Plaintiff's treating psychologist; (2) to provide clear and convincing reasons for rejecting the medical opinions of Dr. Winfree, Gary Sacks, Ph.D., and Luke Patrick, Ph.D., examining psychologists; (3) to evaluate Plaintiff's RFC correctly; (4) to provide clear and convincing reasons for rejecting Plaintiff's subjective symptom testimony; and (5) to provide germane reasons for discounting the lay-witness statements.

         I. The ALJ erred when he failed to admit Dr. Winfree's report.

         Plaintiff contends the ALJ erred at the hearing when he failed to admit Dr. Winfree's report dated March 14, 2018. Plaintiff also contends the ALJ failed to consider Dr. Winfree's opinion that Plaintiff has multiple "marked" mental-health limitations. In response the Commissioner contends the ALJ did not err when he refused to admit the report, and, in any event, the error was harmless.

         A. Background

         Dr. Winfree completed a mental-health questionnaire on March 14, 2018. Tr. 17-21. On Friday, March 16, 2018, Dr. Winfree emailed the completed questionnaire to Plaintiff's counsel, who was out of his office that afternoon. Plaintiff's counsel discovered the questionnaire the next day (Saturday, March 17, 2018) and immediately emailed it to the ALJ through the Commissioner's electronic filing system. On Sunday, March 18, 2018, Plaintiff's counsel submitted a letter to explain the circumstances that caused the late submission. Tr. 343. Plaintiff's hearing before the ALJ was scheduled for Friday, March 23, 2018.

         At the hearing on March 23, 2018, the ALJ did not admit Dr. Winfree's report on the ground that Plaintiff did not submit the report within five business days before the hearing as required by 20 C.F.R. § 404.935(b). The ALJ noted: "Obtaining a medical source statement and submitting it in a timely matter is entirely within the control of the representative and the claimant. It is similar to that of an interrogatory, the obtainment of which is again solely within control of the Representative." Tr. 26. The ALJ concluded Plaintiff had not provided any "reason for the failure to submit [the evidence] no later than five business days before the date of the hearing." Id.

         B. ...


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