Opinion
NO. CV 13-4981-E
03-11-2014
PATRICIA ANN WILSON, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION
AND ORDER OF REMAND
Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
PROCEEDINGS
Plaintiff filed a complaint on July 17, 2013, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on August 12, 2013. Plaintiff filed a motion for summary judgment on January 3, 2014. Defendant filed a cross-motion for summary judgment on March 5, 2014. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed July 18, 2013.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff asserts disability based on alleged physical and mental impairments (Administrative Record ("A.R.") 30-268). With regard to her alleged mental impairments, Plaintiff reported feeling "very overwhelmed," unable to handle stress, and "depressed and stressed out all the time" (A.R. 168, 172). A medical treatment record dated in May of 2011 also mentions "depression" (A.R. 243). At the hearing before the Administrative Law Judge ("ALJ"), Plaintiff referenced "stress" a number of times, and also claimed she had not gone to the doctor because she did not have insurance (A.R. 64-66). At the same hearing, the following colloquy occurred between Plaintiff's representative and the ALJ:
[Plaintiff's representative]: She had depression that she was not taking medication for it. Recently it got so severe her daughters took her to the doctor and we have documentation that they made her an appointment with Behavioral Center that she has to go and take care of it.(A.R. 62-63).
[ALJ]: Okay. Well the problem is the record doesn't reflect any records relating to this issue in terms of mental impairment so I'm unable to assess that. But let's proceed with the hearing.
[Plaintiff's representative]: We have, Your Honor, one of the referral pages if you want me to put it as part of the records?
[ALJ]: Referral page is not the same of [sic] the medical record.
[Plaintiff's representative]: Yeah.
[ALJ]: That's not going to help us.
The ALJ found Plaintiff has severe physical impairments but no severe mental impairment (A.R. 32). The ALJ's decision, which is dated July 5, 2011, states:
The undersigned finds that the claimant's allegation of depression is not supported by the medical evidence. There is no treatment for depression, no evaluation, and no diagnosis of such an impairment. In addition, the claimant alleges no problem with paying attention, following instructions, and getting along with family, friends and neighbors. . . . The undersigned finds that this is not a medically determinable impairment.(A.R. 32). The ALJ concluded Plaintiff retains the residual functional capacity to perform her past relevant work (A.R. 34-37).
Following the ALJ's decision, Plaintiff submitted additional medical evidence. This evidence, which is attached to "Plaintiff's Motion for Summary Judgment or Remand," includes opinions from two physicians. Both of these physicians diagnosed depression and anxiety, and both physicians opined Plaintiff is not capable of performing even low stress jobs (Exhibits A and B to "Plaintiff's Motion for Summary Judgment or Remand"). Although the matter is not entirely free from doubt, it appears that one of these opinions, that of Dr. Muzaffer, expressly relates to the time period beginning October 19, 2010 (Exhibit B, page 4). The other opinion, that of Dr. Mory, expressly relates to the time period beginning December 13, 2011 (Exhibit A, page 4).
The Appeals Council considered this additional evidence but denied review (A.R. 9-14). As the Appeals Council stated: "[t]his means that the Administrative Law Judge's decision is the final decision of the Commissioner of Social Security. . . ." (A.R. 9)
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 proper 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). 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); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).
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 1157, 1163 (9th Cir. 2012) ("[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, 1231 (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).
DISCUSSION
As Defendant appears to concede, the Court "may look to evidence submitted for the first time to the Appeals Council to determine whether the ALJ's decision is still supported by substantial evidence and free of reversible error" ("Defendant's Motion for Summary Judgment" p. 2, ll. 19-22 (citing Brewes v. Astrue, 682 F.3d at 1157)). In light of the evidence submitted for the first time to the Appeals Council, the ALJ's decision in the present case no longer is "supported by substantial evidence and free of reversible error." Remand is appropriate.
As this Court previously has observed, under current Ninth Circuit jurisprudence "it does not matter whether the ALJ's decision when made was supported by substantial evidence and was free from legal error on the record then existing, if later submitted evidence [considered by the Appeals Council] materially undermines the ALJ's decision." Warner v. Astrue, 859 F. Supp. 2d 1107, 1115 n.10 (C.D. Cal. 2012).
This remand is a "sentence four" remand under 42 U.S.C. section 405(g), not a "sentence six" remand. See, e.g., Boucher v. Astrue, 2010 WL 2635078 (W.D. Wash. June 25, 2010); Rodriguez v. Astrue, 2010 WL 933947 (E.D. Wash. Mar. 9, 2010).
An alleged impairment may be found "not severe" "when the medical evidence establishes only a small abnormality . . . which would have no more than a minimal effect on an individual's ability to work. . . ." Social Security Ruling ("SSR") 85-28. This severity concept is merely "a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). If the non-severity of an alleged impairment "is not clearly established by medical evidence . . . adjudication must continue through the sequential evaluation process." SSR 85-28.
Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990).
When the evidence submitted to the Appeals Council for the first time is included in the record, the evidence of record no longer "clearly establishes" the non-severity of Plaintiff's alleged mental impairments. In arguing the contrary, Defendant claims that the medical opinions submitted to the Appeals Council are irrelevant to the time period at issue. However, one of the opinions, that of Dr. Muzaffer, appears to be expressly directed to part of the time period at issue (10/19/10 - 7/15/11). Moreover, many if not most mental impairments are progressive in nature. See Blankenship v. Bowen, 874 F.2d 1116, 1121-22 (6th Cir. 1989), cited with approval in Morgan v. Sullivan, 945 F.2d 1079, 1082-83 (9th Cir. 1991). Consequently, it would not be unreasonable to infer that a mental impairment found to be wholly disabling now may well have been "severe" during an immediately preceding time period.
Plaintiff apparently lacks any prior history of mental health treatment. However,
it is common knowledge that depression is one of the most underreported illnesses in the country because those afflicted often do not recognize that their condition reflects a potentially serious mental illness. . . . Thus, the fact that claimant may be one of millions of people who did not seek treatment for a mental disorder until late in the day is not a substantial basis on which to conclude that [the physician's] assessment of claimant's condition is inaccurate. . . . It is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation. Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (citations and quotations omitted).
Also undercutting the validity of the Administrative decision in the present case is the Administration's special duty to develop the record. The Administration "has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered." Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983); see also Sims v. Apfel, 530 U.S. 103, 110-11 (2000) ("Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits. . . ."). The Administration's duty to develop the record is "especially important" "in cases of mental impairments." DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991).
On the present record, this Court cannot deem the errors in the Administrative decision to have been harmless. The circumstances of this case indicate that there is a substantial likelihood the ALJ's consideration of the additional evidence submitted to the Appeals Council would materially alter the ALJ's disability analysis. Therefore, remand is appropriate. See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see also INS v. Ventura, 537 U.S. 12, 16 (2002) (When a court reverses an administrative determination, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.") (citations and quotations omitted).
CONCLUSION
For all of the foregoing reasons, Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time.
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LET JUDGMENT BE ENTERED ACCORDINGLY.
_________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
Notably, Plaintiff testified she did not go to doctors because she lacked insurance.