Pummer v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: February 19, 2021
• Docket: 2:19-cv-05379
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 David G. Plummer, No. CV-19-05379-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14

15 16 At issue is the denial of Plaintiff David G. Plummer’s application for disability 17 insurance benefits by the Social Security Administration (“SSA”) under the Social Security 18 Act. Plaintiff filed a complaint (Doc. 1) with this Court seeking judicial review of that 19 denial, and the Court now addresses Plaintiff’s Opening Brief (Doc. 17, “Pl. Br.”) 20 Defendant SSA Commissioner’s Response Brief (Doc. 18, “Def. Br.”), and Plaintiff’s 21 Reply Brief (Doc. 21, “Reply”). The Court has reviewed the briefs and Administrative 22 Record (Doc. 13, “R.”) and now reverses and remands for further proceedings. 23 I. BACKGROUND 24 Plaintiff filed an Application for Disability Insurance benefits on June 4, 2015, for 25 a period of disability beginning on October 2, 2014. (R. at 30.) His claim was denied 26 initially on September 19, 2015, and upon reconsideration on March 28, 2016. (Id.) The 27 hearing on Plaintiff’s claim occurred on July 13, 2017. (Id.) Plaintiff did not appear at the 28 hearing but was represented by a non-attorney representative, Andrew Clark. (Id.) 1 On March 13, 2018, the ALJ denied Plaintiff’s claim. (Id. at 41.) Upon considering 2 the medical records and opinions, the ALJ evaluated Plaintiff’s disability based on the 3 following severe impairments: depressive disorders (including bipolar disorder) and 4 anxiety disorders. (Id. at 34.) 5 The ALJ found that Plaintiff “does not have an impairment or combination of 6 impairments that meets or medically equals the severity of one of the listed impairments in 7 20 CFR Part 404, Subpart P, Appendix 1.” (Id. at 35.) Next, the ALJ calculated Plaintiff’s 8 residual functional capacity (“RFC”) as follows: 9 [Plaintiff] has the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: he could perform 10 simple, routine tasks and follow short, simple instructions. He could do work that needs little or no judgment and could perform simple duties that can be 11 learned on the job in a short period. He can work in proximity to co-workers but not in a cooperative or team effort. He requires a work environment that 12 has no more than superficial interactions with co-workers. He requires a work environment that is predictable and with few work setting changes. He 13 should not [be] require[d] to deal with the general public in a job where the general public is frequently encountered as an essential element of the work 14 process, such as in a sales position. Incidental contact of a superficial nature with the general public is not precluded. 15 16 (Id. at 36.) Accordingly, the ALJ found that although Plaintiff could not perform his past 17 work, he could perform other jobs that exist in significant numbers in the national 18 economy, including janitor, packager, and assembler. (Id. at 40-41.) 19 Months after the hearing, Plaintiff submitted additional medical evidence. (Id. at 20 2.) On August 12, 2019, the Appeals Council denied Plaintiff’s request for review and 21 adopted the ALJ’s decision as the agency’s final decision. (Id. at 1-3.) Critically, and as 22 discussed in more detail below, the Appeals Council agreed to consider Plaintiff’s new 23 medical evidence, despite its late submission, and concluded that affirmance was warranted 24 because “[t]his evidence does not show a reasonable probability it will change the outcome 25 of the decision.” (Id. at 2.) 26 II. LEGAL STANDARD 27 In determining whether to reverse an ALJ’s decision, the district court reviews only 28 those issues raised by the party challenging the decision. Lewis v. Apfel, 236 F.3d 503, 517 1 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability determination 2 only if it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 3 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence that a 4 reasonable person might accept as adequate to support a conclusion considering the record 5 as a whole. Id. To determine whether substantial evidence supports a decision, the Court 6 must consider the record as a whole and may not affirm simply by isolating a “specific 7 quantum of supporting evidence.” Id. Generally, “[w]here the evidence is susceptible to 8 more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 9 conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) 10 (citations omitted). 11 To determine whether a claimant is disabled for purposes of the Act, the ALJ 12 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 13 proof on the first four steps but the burden shifts to the Commissioner at step five. Tackett 14 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 15 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 16 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 17 medically determinable physical or mental impairment. Id. § 404.1520(a)(4)(ii). At step 18 three, the ALJ considers whether the claimant’s impairment or combination of impairments 19 meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. 20 Part 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. 21 Id. At step four, the ALJ assesses the claimant’s RFC and determines whether the claimant 22 is still capable of performing past relevant work. Id. § 404.1520(a)(4)(iv). If not, the ALJ 23 proceeds to the fifth and final step, where she determines whether the claimant can perform 24 any other work in the national economy based on the claimant’s RFC, age, education, and 25 work experience. Id. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 26 III. ANALYSIS 27 Although Plaintiff’s opening brief is not a model of clarity, Plaintiff appears to raise 28 the following four issues for the Court’s consideration: (1) whether the Commissioner erred 1 in failing to consider the new medical evidence he submitted to the Appeals Council after 2 the ALJ hearing (Pl. Br. at 9-21, 25); (2) whether the ALJ erred by rejecting his self-reports 3 of symptoms (id. at 21-24); (3) whether the ALJ erred by failing to consider that his 4 application for long-term disability benefits under state law had been granted (id. at 24); 5 and (4) whether the “Administration Breached Its Duty to” him by failing to supplement 6 the record and by denying his request for a continuance of the hearing and/or a change of 7 the hearing location (id. at 24-27). As a remedy, Plaintiff seeks a remand for computation 8 of benefits or, alternatively, a remand for further proceedings. (Id. at 27-28.)1 9 A. Late-Submitted Medical Evidence 10 1. Background 11 On April 3, 2017—more than three months before the hearing before the ALJ— 12 Plaintiff was sent a notice (via his representative) informing him that, “[i]f there is any 13 more evidence you . . . wish to submit in this case, please submit it promptly.” (R. 457.) 14 Plaintiff did not submit any additional evidence before the hearing. 15 During the hearing on July 13, 2017, the ALJ asked Plaintiff’s representative if there 16 was any additional evidence to submit. (Id. at 218.) Plaintiff’s representative responded 17 that, although he was “pretty sure there is quite a bit out there,” he didn’t have the records 18 because they “are very old.” (Id.) Plaintiff’s representative also stated that he was aware 19 that SSA regulations require the submission of such evidence at least five days before a 20 hearing. (Id.) The ALJ clarified that he was going to decide the case based on the evidence 21 currently in the record, stated that Plaintiff could “certainly” still submit additional 22 evidence, and explained that whether such evidence would be admitted into the record 23 would depend on whether the regulations were followed. (Id.) 24 As of March 13, 2018, when the ALJ issued his decision, Plaintiff still had not 25 submitted any new evidence or voiced any intention to do so. (Id. at 32.) 26 1 Plaintiff also asserts that the ALJ erred by rejecting lay witness testimony from his 27 mother. (Pl. Br. at 24 n.8.) However, Plaintiff does not explain why the ALJ erred in rejecting this testimony and only addresses the argument in a footnote. Because this claim 28 is not properly raised or developed, the Court will not address it. 1 In June 2018, Plaintiff hired a new representative. (Id. at 19.) Plaintiff’s new 2 counsel thereafter submitted additional medical records. (Id. at 47–212.) Those records 3 include notes from Dr. Jason H. Turner, Plaintiff’s treating physician, from October 2015 4 through January 2016 and from May 2017 through April 2018. (Id. at 66–85.) Among 5 other things, Dr. Turner completed a check box form on June 10, 2016 indicating that 6 Plaintiff was moderately limited in his ability to understand and remember instructions, in 7 his ability to carry out detailed instructions, and in his ability to perform activities within a 8 schedule. (Id. at 50–52.) Dr. Turner also noted Plaintiff would be markedly limited in his 9 ability to maintain attention and concentration for an extended period and in his ability to 10 complete a normal workday and work week without interruptions from psychologically 11 based symptoms. (Id. at 51–52.) In other records, some spanning into 2018, Dr. Turner 12 stated that Plaintiff was not likely to return to work. (Id. at 86, 120, 124, 125, 183, 184.) 13 On August 12, 2019, the Appeals Council issued a three-page notice denying 14 Plaintiff’s request for review of the ALJ’s decision. (Id. at 1-3.) Critically, this document 15 suggests that the Appeals Counsel considered Plaintiff’s new medical evidence—as 16 opposed to rejecting it on untimeliness grounds—and concluded that affirmance was 17 warranted on the merits in spite of the new evidence: “You submitted medical evidence 18 from Jason Turner, M.D. . . . . This evidence does not show a reasonable probability it will 19 change the outcome of the decision. We did not exhibit the evidence.” (Id. at 2.) 20 2. Discussion 21 When the Appeals Council agrees to consider new evidence that was not before the 22 ALJ, that evidence must be considered part of the record against which the ALJ’s decision 23 is to be evaluated. See, e.g., Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161- 24 62 (9th Cir. 2012) (“We are persuaded that the administrative record includes evidence 25 submitted to and considered by the Appeals Council.”); Ramirez v. Shalala, 8 F.3d 1449, 26 1452 (9th Cir. 1993) (“[W]e consider on appeal both the ALJ’s decision and the additional 27 material submitted to the Appeals Council.”). Thus, even though there may have been 28 legitimate procedural reasons for the Appeals Council to reject Plaintiff’s late-submitted 1 evidence, its decision not to invoke those procedural reasons—and to instead make a 2 merits-based determination that the new evidence didn’t compel reversal of the ALJ’s 3 decision—means the new evidence is properly before the Court in this appeal. Cf. Reyes 4 v. Comm’r of Soc. Sec. Admin., 2019 WL 2098755, *3 (D. Ariz. 2019) (rejecting 5 Commissioner’s argument that “the additional evidence” sent to the Appeals Council “is 6 not part of the record,” and remanding for further proceedings in light of that evidence, 7 because “the Appeals Council made a finding about the merits of the additional evidence 8 and considered whether it would change the outcome of the decision” and “[t]herefore, it 9 is part of the record”). 10 Unfortunately, the Appeals Council provided no reasoning whatsoever in support 11 of its conclusion that Plaintiff’s new evidence “does not show a reasonable probability it 12 will change the outcome.” The absence of reasoning is particularly problematic because 13 Plaintiff’s new evidence included an opinion from his treating physician, Dr. Turner, that 14 his limitations would render him unable to work. To reject such an opinion, an ALJ 15 typically must provide “specific and legitimate” reasons supported by substantial evidence. 16 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Here, because the ALJ provided no 17 reasons for rejecting Dr. Turner’s opinion (an understandable omission, given that the 18 opinion wasn’t before him) and the Appeals Council took no steps to fill this explanatory 19 void, this Court cannot affirm. The record does not contain any reasoned explanation for 20 rejecting Dr. Turner’s opinion, let alone specific and legitimate reasons supported by 21 substantial evidence. 22 The Commissioner belatedly attempts to supply such reasons in its response brief, 23 identifying various reasons why the ALJ and/or Appeals Council could have deemed the 24 late-submitted evidence unpersuasive. (Def. Br. at 20-22.) But those explanations are not 25 properly before the Court.2 As the Ninth Circuit has emphasized, “[l]ong-standing 26

27 2 The Court further notes that one of the Commissioner’s proffered rationales for why the Appeals Council could have rejected Dr. Turner’s opinion—that it was set forth in a 28 check-box form (Def. Br. at 21)—has been rejected by the Ninth Circuit. Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017). 1 principles of administrative law require us to review the ALJ’s decision based on the 2 reasoning and factual findings offered by the ALJ—not post hoc rationalizations that 3 attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. 4 Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). Accordingly, this case must be 5 remanded so the ALJ can consider Plaintiff’s late-submitted medical evidence. 6 B. Plaintiff’s Remaining Arguments 7 Although the Court has now determined that reversal is warranted, this conclusion 8 does not obviate the need to resolve all of Plaintiff’s other challenges on appeal. As noted, 9 Plaintiff’s second and third assignments of error concern the ALJ’s consideration of certain 10 categories of evidence, and Plaintiff argues he is entitled to a remand for a computation of 11 benefits—as opposed to a remand for further proceedings—based on those alleged errors. 12 Accordingly, the Court addresses those assignments of error below and concludes that 13 neither has merit. Given these conclusions, there is no need to address Plaintiff’s final 14 assignment of error, which challenges the ALJ’s refusal to change the date and location of 15 the hearing, because the Court has already determined that a remand for a new hearing is 16 necessary. 17 1. Self-Reports Of Symptoms 18 a. Background 19 Although Plaintiff did not attend his hearing (and thus did not provide testimony 20 concerning his symptoms), Plaintiff did submit a written self-report of his symptoms. (R. 21 404-15). In his self-report, Plaintiff wrote: 22 I stopped working upon having a critical mental health collapse involving 23 suicidal ideation, severe depression, and inability to cope with the mental condition resulting in a 5 day hospitalization at a mental hospital on 24 10/3/2014. I experience the following physical symptoms: trouble sleeping/insomnia; headaches (lasting 1-3 hours). I experience the following 25 mental symptoms: irritability, mood swings; depression (feelings of sadness, 26 lack of interest in activities I once enjoyed, lack of motivation, lost the ability to feel joy and pleasure, thoughts of taking my own life, worthlessness); 27 anxiety (anxious over changes in my life/loss of income, feelings of worry, 28 isolation/avoidance of others, racing thoughts, tense feelings); panic attacks 1 (feeling of gagging, headache, pain or tightness in chest, shortness of breath, sweating – lasting 1-2 hours). I experience the following limitations: getting 2 along with others, difficulty with changes in routine, short-term memory loss, 3 trouble with concentration/thought process; transposing numbers and words. 4 (Id. at 414.) The ALJ discredited this self-report for three reasons. (Id. at 37-39.) First, 5 the ALJ stated that Plaintiff’s self-report was contradicted by the “medical evidence.” (Id. 6 at 37-38.) The specific categories of medical evidence cited by the ALJ were (1) “inpatient 7 treatment notes” from October 4-8, 2014 reflecting that Plaintiff “denied suicidal ideation 8 and all other symptoms, and that his presentation was entirely unremarkable”; (2) treatment 9 notes from Plaintiff’s psychiatrist, Dr. Purewal, who “ultimately reported overall 10 improvement with medication” and “consistently noted unremarkable speech, thought 11 processes, insight, and judgment”; and (3) “counseling records and primary care notes” 12 reflecting that Plaintiff denied suicidal ideation, made no mention of panic attacks, and 13 “more often than not” reflected stable, controlled symptoms. (Id.) Second, the ALJ stated 14 that Plaintiff’s self-report of symptoms was “not entirely consistent” with Plaintiff’s self- 15 report of his activities of daily living (“ADLs”). (Id. at 38-39.) The ADLs on which the 16 ALJ focused included Plaintiff’s admission that he could drive himself for transportation, 17 which is a “dynamic” and “complex” task, and Plaintiff’s admission that he made two out- 18 of-state trips in 2015 to search for a new place to live. (Id.) The ALJ stated that Plaintiff’s 19 “ability to travel long distances to an unfamiliar place, and find and secure housing 20 independently reflects at least basic abilities [in] social and cognitive function.” (Id.) 21 Third, the ALJ noted that Plaintiff “was considering attending graduate school abroad,” 22 which “seems inconsistent with his allegations of disabling mental limitations.” (Id. at 39.) 23 b. Discussion 24 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 25 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the 26 ALJ evaluates whether the claimant has presented objective medical evidence of an 27 impairment “which could reasonably be expected to produce the pain or symptoms 28 alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell 1 v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks 2 omitted)). If so, and absent evidence of malingering, an ALJ may only discount a 3 claimant’s allegations for reasons that are “specific, clear and convincing” and supported 4 by substantial evidence. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 5 Applying these standards, the Court finds no error in the ALJ’s rejection of 6 Plaintiff’s self-reported symptoms. As noted, one of the ALJ’s proffered reasons for 7 rejecting Plaintiff’s self-reported symptoms was inconsistency between those symptoms 8 and Plaintiff’s ADLs. This is a permissible basis for an ALJ to reject a claimant’s symptom 9 testimony. See, e.g., Molina, 674 F.3d at 1112-13 (“[T]he ALJ may consider . . . whether 10 the claimant engages in daily activities inconsistent with the alleged symptoms. While a 11 claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may 12 discredit a claimant’s testimony when the claimant reports participation in everyday 13 activities indicating capacities that are transferable to a work setting. Even where those 14 activities suggest some difficulty functioning, they may be grounds for discrediting the 15 claimant’s testimony to the extent that they contradict claims of a totally debilitating 16 impairment.”) (cleaned up); Orn, 495 F.3d at 639 (stating that “the two grounds for using 17 [ADLs] to form the basis of an adverse credibility determination” are when the claimant’s 18 ADLs (1) “contradict his other testimony” and/or (2) “meet the threshold for transferable 19 work skills”). 20 The ALJ’s finding of inconsistency is also supported by substantial evidence. In 21 Orn, the Ninth Circuit faulted an ALJ for concluding that a claimant’s performance of 22 household tasks such as “reading, watching television, and coloring in coloring books” was 23 evidence that the claimant could perform work-related functions, holding that the proffered 24 activities were “so undemanding that they cannot be said to bear a meaningful relationship 25 to the activities of the workplace.” 495 F.3d at 639. But here, the ALJ did not rely on 26 Plaintiff’s performance of mundane household activities as the source of the inconsistency. 27 Instead, the ALJ noted that Plaintiff made two different out-of-state trips in an attempt to 28 locate new housing. It was rational for the ALJ to conclude that Plaintiff’s ability to 1 participate in such trips was inconsistent with his claimed severe limitations. See, e.g., 2 Dwayne F. v. Comm’r Soc. Sec. Admin., 2020 WL 1043445, *3 (D. Or. 2020) (affirming 3 the ALJ’s finding that “plaintiff’s symptom allegations [were] inconsistent with his ADLs” 4 in part because “plaintiff testified that he was able to travel to Europe”); Narbaitz v. 5 Comm’r of Soc. Sec., 2019 WL 1517658, *2 (E.D. Cal. 2019) (concluding that plaintiff’s 6 reports of out-of-state travel were “not consistent with Plaintiff’s testimony that she cannot 7 work because ‘I have too much pain’”). Cf. Roemer v. Comm’r of Soc. Sec. Admin., 2020 8 WL 7350898, *5 (D. Ariz. 2020) (identifying claimant’s “travel to San Francisco” as 9 permissible basis for rejecting physician’s opinion that claimant had severe limitations). 10 2. Long-Term Disability Benefits 11 One of the medical records before the ALJ was a note from an April 2015 doctor 12 visit. (R. at 708.) The note states that Plaintiff told his doctor that “his long term disability 13 has been approved.” (Id.)3 14 In his third assignment of error, Plaintiff faults the ALJ for failing to discuss this 15 state-law award of benefits, arguing that the award would have “bolstered” his claim for 16 Social Security benefits. (Pl. Br. at 24.) In response, the Commissioner argues that the 17 state-law award is irrelevant because “Arizona’s program is more generous than the federal 18 program, granting disability benefits to employees whose medically determinable 19 impairment prevent them from performing their past work for 30 months, and thereafter 20 from performing either their past work or any other occupation that would pay two-thirds 21 of their pre-disability income,” and the ALJ in this case agreed that “Plaintiff could not 22 perform his highly skilled professional work since his alleged onset date in October 2014.” 23 (Def. Br. at 19-20.) In reply, Plaintiff acknowledges that Arizona’s standard is different 24 from the federal standard but argues in conclusory fashion that the ALJ still should have 25 considered this evidence. (Reply at 7-8.) 26 “[H]armless error principles apply in the Social Security Act context.” Molina, 674 27

28 3 The medical records that Plaintiff submitted to the Appeals Council contain additional references to this award. (R. at 168, 203.) F.3d at 1115. Here, Plaintiff has not explained why the ALJ’s alleged error in failing to || consider his state-law award of disability benefits resulted in any harm. At a minimum, Plaintiff has not explained why the ALJ’s alleged error entitles him to a remand for a 4|| computation of benefits, and the Court has already determined, for independent reasons, 5 || that a remand for further proceedings is necessary. 6 IT IS THEREFORE ORDERED remanding this matter to the Social Security || Administration for further proceedings consistent with the order. 8 IT IS FURTHER ORDERED directing the Clerk to enter final judgment || consistent with this order and close this case. 10 Dated this 19th day of February, 2021. 11 12 Lm 13 f : _o——— Dominic W. Lanza 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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