Opinion
3:23-cv-01208-AN
07-12-2024
JOANN C.,[1] Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
OPINION AND ORDER
Adrienne Nelson, United States District Judge
Joann C. (“Plaintiff”) brings this action seeking judicial review of the Commissioner of the Social Security Administration's (“Commissioner”) denial of her application for Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act. The Court has jurisdiction over Plaintiff's appeal pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons explained below, the Court affirms the Commissioner's decision.
BACKGROUND
I. Plaintiff's Application
Plaintiff was born in June 1979, making her forty years old on her alleged onset date of December 1, 2019. Tr. 110. Plaintiff has a high school education and past relevant work experience as a cashier checker. Tr. 28. In her application, Plaintiff alleges disability due to Autism (ACD Level One), depression, seizure disorder, back injuries, fetal alcohol syndrome, post-traumatic stress disorder (“PTSD”), hidradenitis, learning disorders, anemia, and issues with her thyroid. Tr. 111.
The Commissioner denied Plaintiff's application initially and upon reconsideration. Tr. 130, 151. On March 3, 2022, Plaintiff appeared with counsel for a hearing before Administrative Law Judge Jo Hoenninger. Tr. 45-76. A supplemental hearing was held on June 28, 2022. Tr. 37-44. On July 18, 2022, ALJ Hoenninger issued a written opinion, finding Plaintiff not disabled. Tr. 16-30. The Appeals Council denied review. Tr. 1. Plaintiff now seeks judicial review of the ALJ's final decision.
II. Sequential Disability Evaluation
The Social Security Act defines a disability as the “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), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step sequential procedure. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the burden for steps one through four, and then the burden shifts to the Commissioner at step five. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
The five-step evaluation requires the ALJ to determine: (1) whether a claimant is “doing substantial gainful [work] activity”; (2) whether the claimant has a “medically determinable physical or mental impairment” or combination of impairments that is severe and either lasts at least a year or can be expected to result in death; (3) whether the severity of the claimant's impairments meets or equals one of the various impairments specifically listed by Commissioner; (4) whether the claimant's residual functional capacity (“RFC”) allows the claimant to perform her past relevant work; and (5) whether, given the claimant's RFC, age, education, and work experience, the claimant can make an adjustment to other work that “exists in significant numbers in the national economy.” 20 C.F.R. §§ 404.1520(a), 416.920(a).
III. The ALJ's Decision
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her application date of May 6, 2020. Tr. 19. At step two, the ALJ determined that Plaintiff suffered from the following severe, medically determinable impairments: “epilepsy/psychogenic seizures; pulmonary embolism; hidradenitis suppurativa; status post lumbar discectomy; mild neurodevelopmental disorder.” Id. At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that meets or equals a listed impairment. Tr. 20. The ALJ then concluded that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 416.967(b) with the following limitations:
She can frequently climb ramps and stairs, and should never climb ladders, ropes, or scaffolds. She is limited to only occasional stooping, kneeling, crouching, and crawling. She can occasionally reach overhead bilaterally. She should avoid all exposure to hazards such as unprotected heights and exposed moving mechanical parts. She should be in a low stress work environment, defined as work involving only simple, routine tasks and only occasional brief, superficial contact with the general public and coworkers, with no work as part of a team nor any work requiring interacting with coworkers as part of the job duties. She can accept supervision delivered in a normative manner, meaning, in a calm and even-handed manner.Tr. 21. At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. Tr. 28. At step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as “Cleaner, Housekeeping (DOT# 323.687-014), light, (SVP 2), 400,000 jobs available”; “Assembler, Production (DOT# 706.687-010), light, (SVP 2), 200,000 jobs available); and “Marker (DOT# 209.587-034), light, (SVP 2), 200,000 jobs available.” Tr. 29. Therefore, the ALJ concluded that Plaintiff is not disabled. Id.
STANDARD OF REVIEW
The district court may set aside the Commissioner's denial of benefits only if the ALJ's findings are “‘not supported by substantial evidence or is based in legal error.'” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The district court “cannot affirm the [ALJ's] decision ‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court must consider the entire record. Id. Where the record as a whole can support either the grant or denial of benefits, the district court “‘may not substitute [its] judgment for the ALJ's.'” Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).
DISCUSSION
Plaintiff argues that the ALJ erred by: (1) “violating] Plaintiff's right to due process by barring testimony regarding a consultative examination”; and (2) constructively reopening Plaintiff's prior disability application. For the following reasons, the Court finds that the ALJ did not err. The decision of the Commissioner is affirmed.
I. Plaintiff's Due Process Rights Were Not Violated
Plaintiff argues her due process rights were violated because the ALJ failed to satisfy her duty to conduct a full and fair hearing. Pl.'s Br. at 4 (ECF No. 8).
“[Applicants for social security benefits are entitled to due process in the determination of their claims.” Holohan v. Massanari, 246 F.3d 1195, 1209 (9th Cir. 2001). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks omitted). Hearing procedures may be informal, but they must be “fundamentally fair.” Richardson v. Perales, 402 U.S. 389, 401-02, (1971); see also Martise v.Astrue, 641 F.3d 909, 921-22 (8th Cir. 2011) (“procedural due process requires disability claimants to be afforded a full and fair hearing”); Ferriell v. Comm'r of Soc. Sec. Admin., 614 F.3d 611, 620 (6th Cir. 2010) (“In the context of a social security hearing, due process requires that the proceedings be full and fair.”). Additionally, the “ALJ in a social security case has an independent duty to fully and fairly develop the record and to assure that the claimant's interests are considered.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). However, the ALJ's duty 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, 459-60 (9th Cir. 2001). The ALJ may “discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimants physicians, or keeping the record open after the hearing to allow supplementation of the record.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citation omitted).
Here, Plaintiff contends the ALJ violated Plaintiff's due process rights by failing to give her a full and fair hearing by “barring testimony regarding a consultative examination.” Pl.'s Br. at 4 (ECF No. 8). The consultative examination at issue was conducted in March 2021 by Gary Sacks, Ph.D. Tr. 964-68. At the consultative examination, Plaintiff stated that she was able to work 20 hours a week sorting mail and found her job duties “calm and relaxing.” Tr. 967. Plaintiff's counsel asserts he didn't have Plaintiff give testimony about the consultative examination at the first hearing in March 2022 because it was not part of the record. Pl.'s Br. at 4 (ECF No. 8). Plaintiff asserts that the failure to consider testimony from her at the supplemental hearing resulted in the ALJ improperly relying on Plaintiff's statement from the consultative examination and thus “concluding that her allegations of debilitating symptoms were inconsistent with the record.” Pl.'s Reply Br. at 2 (ECF No. 11), citing Tr. 23.
The Commissioner argues that Plaintiff was afforded a full and fair hearing and her due process rights were not violated. The Commissioner asserts it is Plaintiff's duty to inform the ALJ about or furnish all known evidence related to the disability claim. Def.'s Br. at 4 (ECF No. 10) (citing C.F.R. § 416.912). The Commissioner asserts that Plaintiff failing to fulfill her duty to submit or inform the ALJ about all the evidence pertaining to her claim before the initial March 2022 hearing does not render the hearing “unfair.” Def. Br. at 4 (ECF No. 10) (citing 20 C.F.R. § 416.1435) (stating Plaintiff “must inform [the ALJ] about or submit any written evidence. . . no later than 5 business days before the date of the scheduled hearing.”). Additionally, the Commissioner argues that Plaintiff “is not entitled to supplemental hearings simply because additional evidence was admitted into the record following the first hearing.” Def.'s Br. at 4 (ECF No. 10) (citing 20 C.F.R. § 416.1435) (discussing circumstances where an ALJ may admit evidence the [Plaintiff] tardily introduces after the hearing without any corresponding requirement that the ALJ provide a supplemental hearing on that evidence). Lastly, the Commissioner argues that Plaintiff has failed to show that her alleged inability to testify about the consultative examination resulted in any harm. Def.'s Br. at 5. (ECF No. 10). As explained below, the Court agrees with the Commissioner and finds Plaintiff's arguments unavailing.
Plaintiff and her counsel were aware of the March 2021 consultative examination as early as January 2021. See Tr. 441 (record from January 2021 where Plaintiff and her counsel informed the agency that they wish to proceed with the consultative examination as scheduled). Plaintiff's counsel did not submit this evidence to the agency at any time before or after the March 2022 hearing. The consultative examination was also not listed in Plaintiff's letter to the ALJ listing evidence that remained outstanding as of February 24, 2022. Tr. 424. Instead, the ALJ obtained the consultative examination and proposed to enter it into the record on May 17, 2022. Tr. 446-47. Plaintiff subsequently requested a supplemental hearing and objected to the admission of the consultative examination because it contradicts diagnoses from her longstanding mental health treatment. Tr. 449. The consultative examination was entered into the record as Exhibit 16F, and a supplemental hearing was held on June 28, 2022. Tr. 39, 962-68.
A. The Supplemental Hearing - June 2022
At the supplemental hearing, Plaintiff's counsel stated he wanted to give Plaintiff an opportunity to explain her varying symptoms. Tr. 41. The ALJ responded she would not allow that because “we've already taken full testimony from [Plaintiff] in the previous hearing” and “there's no need for [Plaintiff] to provide additional testimony but I will allow you to make an argument if you'd like.” Id. Plaintiff's counsel proceeded to explain that he did not address the consultative examination at the hearing because it was not previously proffered or part of the record. Id. Plaintiff's counsel stated he would “like to make the argument that [Plaintiff] cannot sustain full-time work” and explained that this “is pretty clear through all the E-exhibits, especially the ones most recently submitted, 25E, 26E, 27E, 28E.” Id. Plaintiff's counsel explained that Plaintiff sometimes works less than ten hours a week, and some weeks she works more, but never up to a full substantial gainful activity level. Id. Plaintiff's counsel also stated that Plaintiff “has a slew of accommodations in her current workplace.” Id. The ALJ interjected and said “Counsel, you are going exactly contrary to testimony that's already been provided.” Tr. 42. The ALJ clarified that the statement that Plaintiff works less than ten hours a week goes directly against the testimony already provided at the March 2022 hearing. Id. The ALJ stated that she would allow Plaintiff's counsel to question Plaintiff about the consultative examination, and asked which examination he was trying to talk about. Id. Plaintiff's counsel responded saying he was referring to the consultative examination from March 26, 2021. Id. The ALJ stated that the consultative examination was long before the initial hearing in March 2022. Id. The ALJ explained that Plaintiff knew about that consultative examination before the initial hearing, and that if there was anything they wanted to say about the consultative examination, it should have been said at the initial hearing. Id. The ALJ stated that she was not going to allow Plaintiff to give testimony regarding that consultative examination, but that she would allow counsel to finish their argument so long as they don't misrepresent what's already been stated in the file. Id. Plaintiff's counsel argued that he had “no duty” to question Plaintiff regarding that consultative examination because it was not initially in the record. Tr. 42-43. The ALJ responded saying “Counsel, your client is supposed to tell you about where she goes, you know. One of the questions you're supposed to ask your client is where have you been seen for anything having to do with medical, you know, and this answer should've come up during that time so for you to say you had no duty to ask about it, I'm not sure I agree with that.” Tr. 43. Plaintiff's counsel responded “I truly wanted to have this hearing today to talk to [Plaintiff] about the kind of things that her personal service worker helps her with....” Id. The ALJ replied “and you had time to ask about that at the previous hearing. . . anything else, counsel?” Id. Plaintiff's counsel then stated “I'd just like to say that 27E shows that . . . if her work were not accommodated, [she] would've been fired on multiple occasions, in December and July, based on the statement made by VE Kimberly Monak (PHONETIC) at the hearing. She missed more than 18 hours of work unscheduled at that time. If her work were not accommodated, she would've been terminated.” Tr. 43-44. The ALJ then stated “Okay[,] anything else?” to which Plaintiff's counsel responded “nothing further.” Tr. 44.
B. The Initial Hearing - March 2022
Plaintiff argues that by limiting her testimony at the supplemental hearing, the ALJ violated her due process right to a full and fair hearing. Specifically, Plaintiff asserts she did not have an opportunity to address Dr. Sack's consultative examination which notes that Plaintiff worked up to 20 hours a week and found her duties “calm and relaxing.” Pl.'s Br. at 4-5 (ECF No. 8). However, at the initial March 2022 hearing, Plaintiff was able to testify about her parttime work, her performance, and the accommodations she received. Tr. 51-52, 55, 63-68.
At the March 2022 hearing, Plaintiff's counsel stated Plaintiff “feels strongly that it's important to work but . . . her disabilities make it impossible for her to do full-time work and the part-time work that she does engage in, is highly accommodated and subsidized by resources . . .” Tr. 51-52. In his opening statement, Plaintiff's counsel acknowledged that throughout Plaintiff's mental health treatment records, there are conversations where Plaintiff informed providers about her “stress at work and how it creates physical and other mental problems.” Tr. 52. Plaintiff testified that she has tried working, but “every time [she] reach[es] that 20 hour mark, [she] end[s] up having anxiety” which results in panic attacks. Tr. 55. Plaintiff specifically testified about her job duties like sorting mail, which is the same job duty discussed in the consultative examination that Plaintiff claims she was “barred” from testifying about at the supplementary hearing. Tr. 54-55, 63-65, 967. Plaintiff testified that she works about 20 hours sorting mail, but that she needs to take days off because of anxiety and stress, so sometimes she only works 16 hours a week. Tr. 55. Plaintiff's counsel proceeded to question Plaintiff extensively on her work history, performance, and the accommodations she received. Tr. 63-68. Plaintiff explained how the number of hours she worked per week fluctuates depending on her anxiety symptoms. Tr. 63-65. Plaintiff testified that her employer “works around” her anxiety by checking on her to make sure she is feeling okay, and she remains employed despite calling out due to her anxiety. Tr. 64. Plaintiff also explained that once she is back “in the hub” she'll be working 12 hours a week, which she can handle well because she is able to “sit down . . . put [her] earphones on . . . go through the bin of files . . . nobody talks to [her] . . . nobody yells at [her] . . . and she is left alone.” Tr. 65. In her testimony, she described working “in the hub” as “relaxing” and “straightforward” which is similar to her statement at the consultative examination where she described her work duties as “calm and relaxing.” Tr. 65, 967. In other words, what Plaintiff testified at the hearing is very similar to her statements in the consultative examination. Id.
Plaintiff's counsel had ample opportunity to give testimony regarding Plaintiff's work activity and the statements she made in the consultative examination. Although the ALJ was short with Plaintiff's counsel, she did allow him to make an argument, and he effectively discussed Plaintiff's work activity and accommodations at both hearings. Tr. 41-44, 54-55, 63-65. Additionally, when the ALJ asked if there was anything else, Plaintiff's counsel said he had “nothing further.” Tr. 44. Plaintiff fails to show how the ALJ “barring” her testimony at the supplementary hearing resulted in any harm. Plaintiff was given a full and fair hearing, and the Court finds that Plaintiff's due process rights were not violated.
II. The ALJ constructively reopened Plaintiff's February 2020 application for benefits
Plaintiff asserts the ALJ constructively reopened Plaintiff's prior application, and the Commissioner concedes on this issue. Pl.'s Br. at 5-6 (ECF No. 8), Def.'s Br. at 6 (ECF No. 10). A prior application was filed on April 26, 2020, and denied initially on April 12, 2020. Tr. 153, 260. In Plaintiff's current application, she alleges disability beginning December 1, 2019, which is prior to the previous application's denial. Id. Although the ALJ did not address the prior application in her decision, she did address evidence in the record dating prior to the previous determination. Specifically, the ALJ discussed medical evidence from December 2019, dating from the previously adjudicated period. Tr. 22. As the Commissioner concedes, “the ALJ considered on the merits whether Plaintiff was disabled during an already-adjudicated period, and she accepted without comment Plaintiff's December 19, 2019, alleged onset date. Def.'s Br. at 6 (ECF No. 10) (citing Lewis v. Apfel, 236 F.3d 503, 510 (9th Cir. 2001)) (holding the ALJ de facto reopened a prior application when he considered on the merits whether Plaintiff was disabled during an already-adjudicated period and accepted the alleged onset date without comment).
However, the Commissioner asserts “the mere fact that the ALJ constructively reopened a prior application is inapposite, however, because it does not undermine the substantial evidence supporting the ALJ's non-disability determination.” Def.'s Br. at 6 (ECF No. 10), citing Tr. 19-30. The Commissioner is correct.
Plaintiff does not present any specific arguments disputing the ALJ's findings that Plaintiff was not disabled from December 1, 2019, the alleged onset date, through the date of the decision. The only other argument presented by Plaintiff is her due process argument which the Court found unavailing, as explained above. As such, the ALJ constructively reopening Plaintiff's prior application was inconsequential to her ultimate determination.
CONCLUSION
For the reasons set forth in this opinion, the Commissioner's decision is AFFIRMED.
IT IS SO ORDERED.