United States District Court, D. Arizona
HONORABLE SUSAN M. BRNOVICH UNITED STATES DISTRICT JUDGE.
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).
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.
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).
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).
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
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
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.
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).
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. (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 ...