Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable S. James Otero, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Plaintiff filed a pro se complaint on August 15, 2014, seeking review of the Administration's denial of child disability insurance benefits. Plaintiff filed a motion for remand on February 18, 2015. Defendant filed opposition to the motion for remand and a cross-motion to affirm on March 20, 2015. Plaintiff filed a reply on April 1, 2015. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order, " filed August 19, 2014, and Minute Order, filed February 18, 2015.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff, born March 6, 1972, graduated from high school, worked sporadically at a number of jobs, and spent years in prison for several theft-related crimes (A.R. 31-46, 144). Plaintiff asserts disability beginning on or about February 9, 1988 (when Plaintiff was 15 years old), based on, inter alia, alleged "mental instability, depression, paranoia, schizophrenia, bipolar disorder, mood swings, [and] not getting along with others" (Administrative Record ("A.R.") 25, 85, 138, 142-43). To qualify for child disability insurance benefits, Plaintiff must show: (1) she is "under a disability which began" "before [s]he attained the age of 22" (i.e., prior to March 6, 1994 (A.R. 13, 15, 59)); and (2) she was "dependent" on the insured (Plaintiff's mother) at the time of the insured's death. See 42 U.S.C. § 402(d); Astrue v. Capato ex rel. B. N.C. , 132 S.Ct. 2021, 2027 (2012).
In 2011, Plaintiff was allowed adult disability benefits (A.R. 138).
Plaintiff, formerly male, became female in 1997. Herein, the Court refers to Plaintiff as female even when referencing a time period before 1997.
Plaintiff's alleged dependency on her mother at the time of the mother's death does not appear to be disputed by Defendant.
An Administrative Law Judge ("ALJ") reviewed the record and heard testimony from Plaintiff and a vocational expert (A.R. 13-17, 23-441). The ALJ found Plaintiff had not shown that any medically determinable impairment existed on or before March 6, 1994 (A.R. 14-17). The ALJ also found that Plaintiff's testimony lacked credibility (A.R. 17). Accordingly, the ALJ concluded that Plaintiff had not been disabled prior to March 6, 1994 (A.R. 14-17). The Appeals Council denied review after considering an April 17, 2014 letter from a teacher at Magnolia Park School regarding Plaintiff's attendance and treatment at that school (A.R. 1-4, 245).
The medical record before the ALJ consisted of treatment records from July 2011 through April 2012. Specifically, there were lab reports from July 2011 and December 2011 (A.R. 322-49), clinic records for an office visit for alleged neuropathy from August 2011 (A.R. 313-21), clinic records for routine office visits from September 2011 and April 2012 (A.R. 291-95, 307-12), clinic records for an office visit for a rash from October 2011 (A.R. 302-06), emergency room records following a motor vehicle accident from December 2011 (A.R. 247-90), and clinic records for an office visit for an upset stomach from December 2011 (A.R. 296-301). The record before the ALJ also included California Department of Corrections records from October 2010 through February 2011 (A.R. 365-82). As of May of 2011, Plaintiff reportedly was diagnosed with schizoaffective disorder, bipolar type, and adult antisocial behavior with a Global Assessment of Functioning ("GAF") score of 52 (A.R. 380). Plaintiff claimed that she had attempted suicide in 1988 and that she started getting treatment in 1996 when she allegedly began to hear voices and experience paranoia (A.R. 379).
Plaintiff seeks a remand based on allegedly "new and material evidence that was previously unavailable" (Plaintiff's Motion, p. 1). As the allegedly "new and material evidence, " Plaintiff offers Exhibits A through E to her motion. Exhibit A consists of: (a) the same April 17, 2014 letter from Magnolia Park School that the Appeals Council already considered; and (b) general information regarding Magnolia Park School that the ALJ already considered (A.R. 221, 245, 432). Exhibit B is a California Department of Corrections diagnostic study and recommendation for Plaintiff dated June 5, 1992, which diagnosed "Adult Antisocial Behavior, " and "Personality Disorder (NOS)." Exhibit C is a Probation Officer's Report dated March 26, 1992, stating that Plaintiff had claimed to have had mental health counseling from 1983 through 1988, as well as while Plaintiff was on probation in 1991. Exhibit D is a September 18, 2014 letter from Dr. Marcia Alcouloumre and Nurse Practitioner Susan Wellborn, who began treating Plaintiff in March of 2014. The letter reflects that Plaintiff claimed prior suicide attempts and a history of counseling. The letter also opines retrospectively that Plaintiff was disabled before age 22. Exhibit E consists of medical records from the Didi Hirsch Community Mental Health Center reflecting treatment from May 24, 2001 through April 29, 2004.
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence 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) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). "The claimant carries the burden of proving a disability. Failure to prove disability justifies a denial of benefits." Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (citations omitted).
the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.
Where, as here, the Appeals Council considered additional evidence but denied review, the additional evidence becomes part of the record for purposes of the Court's analysis. See Brewes v. Commissioner, 682 F.3d at 1163 ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence"; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1232 (2011) (courts may consider evidence presented for the first time to the Appeals Council "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).
With the exception of Exhibit A, Plaintiff's additional evidence was not presented to the ALJ or to the Appeals Council. Consequently, this Court may not consider Plaintiff's Exhibits B through E, except in relation to analyzing whether to remand the case under "sentence six" of 42 U.S.C. section 405(g). See Melkonyan v. Sullivan, 501 U.S. 89, 100-03 (1991). Sentence six provides that the Court may remand a case for the administrative consideration of additional evidence "only upon a showing that there is new evidence which is material and there is good cause for the failure to incorporate such evidence into the record in [the] prior [administrative] proceeding." 42 U.S.C. § 405(g).
DISCUSSION
After consideration of the record as a whole, the Magistrate Judge recommends that Defendant's motion be granted and Plaintiff's motion be denied. The Administration's findings are supported by substantial evidence and are free from material legal error. Remand is not appropriate.
The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart,
I. Plaintiff Has Failed to Make the Requisite Showing for a Sentence Six Remand.
"Sentence-six remands may be ordered in only two situations: where the Secretary requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency." Shalala v. Schaefer, 509 U.S. 292, 297 n.2 (1993); see 42 U.S.C. § 405(g). In the latter circumstance, the claimant bears the burden of demonstrating the materiality of the evidence and good cause for not having presented the evidence during the administrative proceeding. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).
New evidence is "material" within the meaning of section 405(g) if the evidence "bears directly and substantially on the matter in dispute, " and "there is a reasonable possibility that the new evidence would have changed the outcome of the [administrative] determination." Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (citations and quotations omitted). "A claimant does not meet the good cause requirement by merely obtaining a more favorable report once his or her claim has been denied." Mayes v. Massanari, 276 F.3d at 463. However, "[i]f new information surfaces after the [Administration's] final decision and the claimant could not have obtained that evidence at the time of the administrative proceeding, the good cause requirement is satisfied." Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (citing Booz, 754 F.2d at 1380).
Plaintiff has failed to satisfy the materiality requirement with respect to any of her assertedly "new" evidence. As to Exhibit A, the April 17, 2014 Magnolia Park School letter was before the Appeals Council. The Appeals Council considered this evidence and found no cause to review the ALJ's decision. See Brewes v. Commissioner, 682 F.3d at 1159-60 (evidence submitted for the first time to the Appeals Council, which considers the evidence in denying review of the ALJ's decision, is part of the administrative record). Also as to Exhibit A, the general information regarding Magnolia Park School was before the ALJ. Exhibits D and E post-date the relevant time period by 20 years and 7 years, respectively. These records do not bear "directly and substantially" on the matter in dispute. See Bruton v. Massanari, 268 F.3d at 827 (later determination based on "different medical evidence" for a "different time period" was not "material" for purposes of sentence six remand); Ward v. Schweiker, 686 F.2d 762, 765 (9th Cir. 1982) (evidence dated two years after claimant was found able to work, while possibly probative of the nature of the disease or disability, was not material to the termination of benefits because the evidence appeared to indicate, at most, a more recent deterioration of condition). More fundamentally, Plaintiff has failed to demonstrate any reasonable possibility that any of the proffered exhibits would have changed the outcome of the administrative decision. Plaintiff previously presented evidence to the ALJ that Plaintiff had been diagnosed with schizoaffective disorder, bipolar type, and adult antisocial behavior (A.R. 368-74). These diagnoses occurred after Plaintiff previously had claimed suicide attempts in 1995 and 2007 (or in 1988 and 1997) (compare A.R. 365 with A.R. 379), head trauma as a child, depressive symptoms allegedly beginning in 1983, hallucinations and paranoia allegedly beginning in 1996, and treatment at Didi Hirsch from 2001 through 2004 (A.R. 365, 379-380). Despite all of this previously presented evidence (the persuasiveness of which depended largely on the credibility of Plaintiff), the ALJ found that no severe medically determinable impairment existed prior to the time Plaintiff turned 22 (A.R. 16-17) (discussing lack of evidence and rejecting Plaintiff's symptom testimony as not credible, given Plaintiff's drug use and history of criminal behavior, including a prison term for grand theft). Under these circumstances, there is no reasonable possibility that a different administrative determination would result from consideration of the additional records - records which largely rely on information reported by Plaintiff and are consequently dependent for their persuasiveness on Plaintiff's credibility. In particular, there is no reasonable possibility that the retrospective opinion contained in Exhibit D would produce a different administrative result. See id. The Ninth Circuit has stated that "[a]fter-the-fact psychiatric diagnoses are notoriously unreliable." Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984); but see Smith v. Bowen, 849 F.2d 1222, 1225-26 (9th Cir. 1988) (medical opinion should not be disregarded solely on the basis that the opinion is retrospective). A decades-after-the-fact psychiatric diagnosis that is dependent on the credibility of a person who previously has been adjudicated not credible would stand no reasonable possibility of altering the administrative decision herein.
Plaintiff's drug use and criminal behavior properly bore on her credibility. See Sherman v. Colvin, 582 Fed.App'x 745, 748 (9th Cir. 2014) (ALJ properly considered claimant's marijuana use as contributing to adverse credibility finding); Albidrez v. Astrue, 504 F.Supp.2d 814, 822 (C.D. Cal. 2007) (approving ALJ's consideration of claimant's conviction for attempted robbery as a crime involving moral turpitude); see also Burch v. Barnhart, 400 F.3d at 680 ("In determining credibility, an ALJ may engage in ordinary techniques of credibility evaluation"); Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990) (an ALJ's assessment of a claimant's credibility is entitled to "great weight").
The opinion contained in Exhibit D expressly relies on the subjective complaints and historical reports of Plaintiff. Where, as here, an ALJ has properly discounted a claimant's subjective complaints and historical reports, the ALJ may discount treating physician opinions that are predicated on the same. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); accord Mattox v. Commissioner of Social Security, 371 Fed.App'x 740, 742 (9th Cir. 2010); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989); compare Ghanim v. Colvin, 763 F.3d 1154, 1162-63 (9th Cir. 2014) ("when a [treating physician's] opinion is not more heavily based on a patient's self-reports than on clinical observations, " an ALJ may not discount the treating physician's opinion based on the patient's lack of credibility). In this case, the factual allegations in the record concerning Plaintiff's prior condition derived from Plaintiff's remotely retrospective self-reports.
Plaintiff also has failed to demonstrate "good cause" why she could not have presented Exhibits B through E during the administrative proceedings (which did not conclude until July 8, 2014) (A.R. 1). Notwithstanding the alleged destruction of other documents, there is no reason before the Court why Plaintiff waited so long to obtain and present Exhibit B (the 1992 California Department of Corrections document), Exhibit C (the 1992 probation report) and Exhibit E (the 2001-2004 treatment records). See Campbell v. Shalala, 988 F.2d 741, 745 n.2 (7th Cir. 1993) (rejecting request for sentence six remand where the claimant "could have and should have obtained the letters [including medical opinions] while the case was still subject to administrative review"); Key v. Heckler, 754 F.2d at 1551 (no good cause for sentence six remand where the plaintiff failed to offer any reason why he could not have obtained the evidence earlier); Bustamante v. Colvin, 2015 WL 136016, at *12 (D. Ariz. Jan. 9, 2015) (same); Fisher v. Colvin, 2014 WL 1159304, at *10 (E.D. Wash. Mar. 21, 2014) (same); Vasquez v. Colvin, 2014 WL 65305, at *23 (D. Ariz. Jan. 8, 2014) (same); Pietz v. Astrue, 2009 WL 688571, at *11 (W.D. Wash. Mar. 16, 2009) (same); Cantone v. Apfel, 2000 WL 145816, at *9 (N.D. Cal. Feb. 2, 2000), aff'd, 2000 WL 194907 (N.D. Cal. Feb. 11, 2000) (same). As to Exhibit D (the decades-after-the-fact retrospective medical opinion), Plaintiff reportedly began treatment with the authors of that opinion approximately four months before the administrative proceedings concluded. Moreover, the present record is bereft of any reason why Plaintiff could not have begun treatment and obtained an opinion from the authors much earlier (instead of waiting to begin treatment until the same month the ALJ issued his adverse decision). See, e.g., Fleshood v. Astrue, 2010 WL 3893949, at *8 (E.D. Va. Sept. 8, 2010), adopted by 2010 WL 3893945 (E.D. Va. Oct. 1, 2010) ("[He] has not shown good cause for his failure to submit the opinion earlier. Even though the opinion was obtained subsequent to the ALJ's decision, it appears Plaintiff could have obtained this opinion and/or treatment prior to the ALJ's decision").
As previously mentioned, Plaintiff did present Exhibit A during the administrative proceedings.
II. Substantial Evidence Supports the Administrative Decision.
The ALJ determined that Plaintiff had not established the existence of any severe medically determinable impairment prior to attaining age 22 (A.R. 15-16). Substantial evidence supports this determination.
At step two of the sequential disability analysis, the claimant bears the burden of establishing the existence of a severe medically determinable impairment or combination of impairments precluding substantial gainful activity for at least 12 continuous months. See 20 C.F.R. §§ 404.1505, 404.1512, 404.1520, 416.905, 416.912, 416.920; Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2011). Plaintiff plainly failed to carry this burden. Plaintiff presented no medical evidence to the ALJ or to the Appeals Council conceivably demonstrating that any severe medically determinable impairment existed during the relevant time period.
[R]egardless of how many symptoms an individual alleges, or how genuine the individual's complaints may appear to be, the existence of a medically determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities; i.e., medical signs and laboratory findings.... In claims in which there are no medical signs or laboratory findings to substantiate the existence of a medically determinable physical or mental impairment, the individual must be found not disabled at step 2 of the sequential evaluation process....
Social Security Ruling 96-4p (emphasis added); see also Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 (9th Cir. 2005) (substantial evidence supported ALJ's step two non-disability determination where "there [were] no medical signs or laboratory findings to substantiate the existence of a medically determinable physical or mental impairment") (quoting SSR 96-4p); see generally 20 C.F.R. §§ 404.1508, 416.908 ("A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms.") (citation omitted). A medical "sign" is "an anatomical, physiological, or psychological abnormality that can be shown by medically acceptable clinic diagnostic techniques[.]" Ukolov v. Barnhart, 420 F.3d at 1005 (quoting SSR 96-4p).
As summarized above, the only evidence before the ALJ concerning the relevant time period were high school transcripts and a school letter (A.R. 204-05, 208-09, 224-26, 241-43, 427-32). No medical records provided to the ALJ predated Plaintiff's 22nd birthday; all of the medical records provided to the ALJ post-dated Plaintiff's 22nd birthday by 16 to 18 years (A.R. 246-441). The Appeals Council considered the April 17, 2014 school letter and properly found no reason to alter the ALJ's decision (A.R. 1-4). This letter did not reference any specific medical evidence or findings. The letter was not prepared by an "acceptable medical source." See A.R. 245; see also Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997) (refusing to consider special education teacher without a doctoral degree to be an "acceptable medical source").
In short, if only because Plaintiff provided the Administration with no medical evidence concerning the relevant time period, substantial evidence supports the Administration's step two non-disability determination. See Ukolov v. Barhart, 420 F.3d at 1004-05.
"If the ALJ determines that a claimant is either disabled or not disabled at any step in the process, the ALJ does not continue to the next step." Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). Even if, arguendo, the Administration somehow erred by not continuing to the next step, Plaintiff has failed to carry her burden of demonstrating the harmfulness of any such error. See generally McLeod v. Astrue, 640 F.3d 881, 886-89 (9th Cir. 2011) (claimant bears the burden of showing a substantial likelihood of prejudice from the Administration's error).
RECOMMENDATION
For all of the foregoing reasons, it is recommended that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) denying Plaintiff's motion for remand; (3) granting Defendant's motion for affirmance; and (4) directing that Judgment be entered in favor of Defendant.
The only records before the ALJ directly concerning the relevant time period (i.e., before March 6, 1994) were high school transcripts, a letter from the Burbank Unified School District indicating that Plaintiff attended Magnolia Park School from March 16, 1988 through October 20, 1989, and information relating to Magnolia Park School (A.R. 204-05, 208-09, 224-26, 241-43, 427-32). Magnolia Park School reportedly "is exclusive [sic] for students who qualify for special education services under the disability category of Emotionally Disturbed" (A.R.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).