United States District Court, D. Oregon
JOSEPH M. R.,  Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
B. MAPES Attorney at Law Attorney for Plaintiff
J. WILLIAMS United States Attorney
GOWIE Assistant United States Attorney
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE
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.
reasons that follow, the Court REVERSES the
decision of the Commissioner and REMANDS
this matter for the immediate calculation and payment of
April 4, 2017, Plaintiff protectively filed his application
for DIB benefits. Tr. 25, 189. Plaintiff initially alleged a
disability onset date of July 11, 2008. 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.
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).
October 15, 2018, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner's decision.
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.
alleges disability due to Post-Traumatic Stress Disorder
(PTSD), depression, and irritable bowel syndrome (IBS). Tr.
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.
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)).
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).
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).
The Regulatory Sequential Evaluation
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).
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.
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).
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
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.
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).
One the ALJ found Plaintiff has not engaged in substantial
gainful activity since March 31, 2012, Plaintiff's
alleged disability onset date. Tr. 28.
Two the ALJ found Plaintiff has the severe impairments of
anxiety, depression, and PTSD. Tr.28.
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.
Four the ALJ concluded Plaintiff is unable to perform his
past relevant work. Tr. 40.
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.
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.
The ALJ erred when he failed to admit Dr. Winfree's
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.
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.
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."