United States District Court, W.D. Washington, Seattle
MICHELLE L. PETERSON, UNITED STATES MAGISTRATE JUDGE
seeks review of the denial of her application for Disability
Insurance Benefits. Plaintiff contends the administrative law
judge (“ALJ”) erred by excluding and not
considering 1, 003 pages of medical records. (Dkt. # 14 at
2.) According to Plaintiff, the entire five-step analysis is
fundamentally flawed because the ALJ failed to consider these
records. (Id.) In the alternative, Plaintiff argues
that - even without consideration of the excluded records -
the ALJ erred in evaluating the Residual Functioning Capacity
(“RFC”) and her finding that Plaintiff can
perform a significant number of jobs in the national economy.
(Id.) As discussed below, the Court AFFIRMS the
Commissioner's final decision and DISMISSES the case with
filed her Title II application for disability on November 12,
2015, claiming that her disability onset date was July 15,
2014. (Dkt. # 14 at 2.) The claim was initially denied on
March 1, 2016, and again upon reconsideration on June 9,
2016. (Id.) Plaintiffs hearing before the ALJ was on
February 20, 2018. AR at 15. The ALJ denied Plaintiffs claim
on June 18, 2018. Id. As the Appeals Council denied
Plaintiffs request for review, the ALJ's decision is the
Commissioner's final decision. Id. at 1.
Plaintiff appealed the final decision of the Commissioner to
42 U.S.C. § 405(g), this Court may set aside the
Commissioner's denial of social security benefits when
the ALJ's findings are based on legal error or not
supported by substantial evidence in the record as a whole.
Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir.
2005). As a general principle, an ALJ's error may be
deemed harmless where it is “inconsequential to the
ultimate nondisability determination.” Molina v.
Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (cited
sources omitted). The Court looks to “the record as a
whole to determine whether the error alters the outcome of
the case.” Id.
evidence” is more than a scintilla, less than a
preponderance, and is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971);
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
1989). The ALJ is responsible for determining credibility,
resolving conflicts in medical testimony, and resolving any
other ambiguities that might exist. Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the
Court is required to examine the record as a whole, it may
neither reweigh the evidence nor substitute its judgment for
that of the Commissioner. Thomas v. Barnhart, 278
F.3d 947, 954 (9th Cir. 2002). When the evidence is
susceptible to more than one rational interpretation, it is
the Commissioner's conclusion that must be upheld.
“has an independent duty to fully and fairly develop
the record.” Tonapetyan v. Halter, 242 F.3d
1144, 1150 (9th Cir. 2001) (internal citations and quotations
omitted). This duty exists even when the claimant is
represented. Brown v. Heckler, 713 F.2d 411, 443
(9th Cir. 1983). “An ALJ's duty to develop the
record further is triggered only when there is ambiguous
evidence or when the record is inadequate to allow for proper
evaluation of the evidence.” Mayes v.
Massanari, 276 F.3d 453, 460 (9th Cir. 2001). For
example, where an ALJ relies on a medical expert who
indicates the record is insufficient to render a diagnosis,
the ALJ must develop the record further. See
Tonapetyan, 242 F.3d at 1150.
The ALJ Erred by Failing to Fully Develop the Record
primary allegation of error relates to the ALJ's decision
to decline to admit or even consider the 1, 003 pages of
late-submitted evidence from Franciscan Health of Enumclaw.
AR at 16. The ALJ's decision was based on the
representative's failure to notify the ALJ of additional
evidence no later than five business days before the date of
the scheduled hearing. Id. at 15 (citing 20 C.F.R.
404.935(a)). The representative notified the ALJ only two
business days prior to the hearing and acknowledged that he
had missed the five-day requirement. Id. at 1321.
The ALJ also found that the representative's failure to
timely notify the ALJ was not excusable under one of the
exceptions to the five-day rule. Id. at 15-16
(stating “not only did the representative not timely
inform the undersigned regarding outstanding evidence, he did
not show that, despite good faith efforts, the evidence could
not be obtained”) (citing Id. at 1321
(representative's letter to ALJ stating that Plaintiff
had been treating at Franciscan in Enumclaw but that, in an
effort to keep the costs down, Plaintiff had been attempting
to obtain the records herself) and SSR 17-4p (regulations
setting forth the five-day rule).) Plaintiff, through her
representative, requested that the record be held open to
allow for the submission of the relevant medical evidence;
not that the hearing be postponed.
was largely silent on Plaintiff's role in failing to
provide the evidence to the ALJ, other than to say that the
Plaintiff testified that she could not afford to order the
medical records. AR at 16. Instead, the ALJ focused almost
entirely on Plaintiff's representative's failures to
timely provide the records or provide an explanation for the
delay. Id. at 16 (noting that it appeared that
Franciscan lost the request for records but that the
representative “left collection of medical records to
the last minute, despite obtaining a postponement of the
claimant's first hearing”). The ALJ was also
troubled by the fact that the representative “left it
to the claimant to try to remedy the matter.”
Id. Plaintiff, however, was unsuccessful in
obtaining the records because she lacked the funds to pay for
them. Id. And, Franciscan claimed to have lost her
first request for records. Id. The ALJ did not
address Plaintiff's conduct but found the representative
had not met his duties and therefore she declined to consider
the additional records. Id.
Court finds that the ALJ correctly identified the
representative's deficiencies in the case but applied the
wrong remedy. “A representative's failure to comply
with his or her affirmative duties . . . could result in
disciplinary action.” SSR 17-4p. The Commissioner has
the option of referring a representative to the Office of the
General Counsel (“OGC”) to determine whether
there was a violation of the social security
administration's rules. Id. However, the
referral to the OGC for a potential violation “does not
change [the ALJ's] duties with respect to the development
of the evidence” pursuant to 20 C.F.R. 404.935 and
416.1540(c)(7). Id. While the Court takes no
position on whether the representative was in violation of
the rules, the Court notes that the remedy for the