Reyes v. Commissioner of Social Security Administration

          ORDER

          HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Plaintiff Angel Reyes's (“Plaintiff”) appeal from the Social Security Commissioner's (the “Commissioner”) denial of his application for Social Security Disability Insurance and Supplemental Security Income Benefits. Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review of that denial, and the Court now addresses Plaintiff's Opening Brief (Doc. 12, “Op. Br.”), Defendant Social Security Administration Commissioner's Response Brief (Doc. 14, “Resp.”), and Plaintiff's Reply (Doc. 15, “Reply”). The case was stayed pending the Supreme Court's opinion in Biestek v. Berryhill, 139 S.Ct. 1148 (2019). (Doc. 18). Following Biestek's release, the parties submitted supplemental briefs. (Docs. 20-22). The Court has reviewed the briefs and the Administrative record (Doc. 11, “AR”) and now reverses and remands the Administrative Law Judge's decision (AR 23-36) as upheld by the Appeals Council (AR 1-4).

         I. Background

         The parties are familiar with the background information in this case, and it is summarized in Administrative Law Judge (“ALJ”) Joan G Knight's November 25, 2015 decision. (AR 23-36). Accordingly, the Court will reference the background only as necessary to the analysis below.

         II. Legal Standard

         The ALJ's decision may be overturned “only when the ALJ's findings are based on legal error or not supported by substantial evidence in the record.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). “Substantial evidence” is “more than a mere scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). When reviewing an ALJ's decision, the district court considers only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001).

         “Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion which must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences logically flowing from the evidence.” Gallant v. Heckerl, 753 F.2d 1450, 1453 (9th Cir. 1984). “The trier of fact and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgement for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see also Benton, 331 F.3d at 1035 (“If the evidence can support either outcome, the Commissioner's decision must be upheld.”). The ALJ is also responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). If substantial evidence from the record as a whole supports the ALJ's decision, the Court must affirm it. See Hammock v Bowen, 879 F.2d 498, 501 (9th Cir. 1989). But the Court “may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

         The Court is not charged with reviewing the evidence and making its own judgment as to whether Plaintiff is disabled. A reviewing court, in dealing with a judgement which an administrative agency alone is authorized to make, may only make its decision based upon evidence discussed by the agency. Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947). This limits the Court's inquiry to the reasons asserted by the ALJ and the evidence relied upon in support of those reasons. Connect v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court may not uphold an ALJ's decision on a ground not actually relied on by the ALJ. Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012). Additionally, “harmless error principles apply in the Social Security Act context.” Id. at 1115. “[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination.” Id.

         To determine if a claimant is disabled for the purpose of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof for the first four steps, and the burden shifts to the Commissioner at step five. Apfel, 180 F.3d at 1098. First, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. Id. § 404.1520(a)(4)(ii). If not, the claimant is not considered disabled and the inquiry ends. Id. For step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. pt. 404. Id. § 404.1520(a)(4)(iii). If the ALJ concludes it does, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four, where she assesses the claimant's residual functional capacity (“RFC”) and determines if the claimant is capable of performing past relevant work. Id. § 404.1520(a)(4)(iv). If the claimant is capable, she is not disabled and inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, which addresses whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled.

         III. Analysis

         Plaintiff argues that Commissioner erred in three ways when she denied him benefits: (1) by failing to properly consider additional evidence gathered after the ALJ's decision but before the Appeals Council's decision; (2) by denying Plaintiff's subpoena request for Vocational Expert Shirley Ripp's (“VE Ripp”) and not requiring her to disclose the sources of data for the numbers of jobs in the local, regional, and national market (AR 23, 376-78); and (3) by not providing “specific and legitimate reasons” for rejecting Plaintiff's treating physicians' medical opinions. The Court will consider the first and third arguments first because they are closely related, and then consider VE Ripp's data.

         1. Additional Evidence

         After the ALJ's November 25, 2015 decision, Plaintiff appealed the denial to the Appeals Council. (AR 1). Prior to his appeal, the Commissioner sent him a letter noting a change in the rules the Appeal Council will apply when considering whether to review a case. (AR 9-10) Prior to the new rule, the Appeals Council was directed to consider additional evidence submitted by a claimant relating to the period on or before the date of the ALJ hearing even if it was submitted after the hearing. After the new rule went into effect, a claimant must show “good cause” for not submitting the evidence at least five days prior to his ALJ hearing. (AR 9-10) (see 20 C.F.R. § 404.970(a)(5)). The Commissioner informed him that because his case “was pending at the Appeals council before our rule about when to give us evidence became effective, we will find that you showed good cause for not submitting additional evidence earlier.” (AR 10). Even more explicitly, the Commissioner said in the letter, “We will find that some other unusual unexpected, or unavoidable circumstance beyond your control prevented you from telling us about or giving us the evidence earlier.” (AR 10).

         When Plaintiff requested review by the Appeals Council, he sent them additional evidence: “medical source statements” from Dr. John Gilliam, M.D., and Dr. Christine Carrejo, M.D. (AR 2). Plaintiff claims that both practitioners are treating physicians who support Plaintiff's disability claim.^[1] (Op. Br. at 8; Doc. 13 at 1, 9). The Appeals Council denied review of the ALJ's decision and, though the opinions “relate[d] to the period at issue, ” found the new evidence did “not show a reasonable probability that it would change the outcome of the decision, ” but also did not “consider and exhibit this evidence.” (AR 1-2). The Commissioner argues ...