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Lee S. v. Commissioner of Social Security

United States District Court, W.D. Washington, Seattle

January 14, 2020

HEATHER LEE S., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          MICHELLE L. PETERSON, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff 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 prejudice.

         II. BACKGROUND

         Plaintiff 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 this Court.

         III. LEGAL STANDARDS

         Under 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.

         “Substantial 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. Id.

         The ALJ “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.

         IV. DISCUSSION

         A. The ALJ Erred by Failing to Fully Develop the Record

         Plaintiffs 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.

         The ALJ 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.

         The 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 ...


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