Sharonna C. Jackson v. Carolyn W. Colvin

Filing 27

MEMORANDUM AND ORDER by Magistrate Judge Kenly Kiya Kato. (SEE ORDER FOR FURTHER DETAILS) For the foregoing reasons, IT IS ORDERED that pursuant to sentence six of 42 U.S.C. § 405(g) this action is REMANDED for further proceedings consistent with this Order. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order on counsel for both parties. (iva)

1
2
3

JS-6

4
5
6

UNITED STATES DISTRICT COURT

7

CENTRAL DISTRICT OF CALIFORNIA

8
9
10

SHARONNA C. JACKSON,
Plaintiff,

11
v.

12
13
14

Case No. EDCV 16-1991-KK
MEMORANDUM AND ORDER

NANCY A. BERRYHILL1, Acting
Commissioner of Social Security,
Defendant.

15
16

Plaintiff Sharonna C. Jackson (“Plaintiff”) filed a Complaint seeking review

17
18

of the final decision of the Commissioner of the Social Security Administration

19

(“Commissioner” or “Agency”) denying his application for Title XVI

20

Supplemental Security Income Benefits (“SSI”). Plaintiff filed a Motion to

21

Augment the Administrative Record, which the Court construes as a Motion for

22

Remand pursuant to 42 U.S.C. § 405(g) (“Motion”). The parties have consented

23

to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to

24

28 U.S.C. § 636(c). For the reasons stated below, Plaintiff’s Motion is GRANTED

25

and this action is REMANDED for further proceedings consistent with this Order.

26

///

27
28

1 Nancy A. Berryhill is now the Acting Commissioner of the Social Security
Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
the Court substitutes Nancy A. Berryhill as Defendant in the instant case.

1

I.

2

FACTUAL AND PROCEDURAL BACKGROUND

3

On July 11, 2012, Plaintiff filed an application for SSI, alleging a disability

4

onset date of January 1, 2004. Administrative Record (“AR”) at 178-86. Plaintiff

5

alleges disability based on Attention Deficit Disorder; Social Anxiety Disorder;

6

Obsessive Compulsive Disorder; Migraines; Bilateral Ankle Deformity; Asthma;

7

and “GI Disorder.” Id. at 194. Plaintiff’s application was denied initially on

8

January 31, 2013, and upon reconsideration on October 3, 2013. Id. at 87-111.

9

On November 13, 2013, Plaintiff requested a hearing before an

10

Administrative Law Judge (“ALJ”). Id. at 133. On November 13, 2014, Plaintiff

11

appeared with counsel and testified at a hearing before the assigned ALJ. Id. at 50-

12

82. A vocational expert (“VE”) also testified at the hearing. Id. at 82-86. On

13

February 27, 2015, the ALJ issued a decision denying Plaintiff’s application for SSI.

14

Id. at 27-43.

15
16
17

On April 28, 2015, Plaintiff filed a request to the Agency’s Appeals Council
to review the ALJ’s decision. Id. at 22-26.
On July 9, 2015, Plaintiff’s counsel wrote to the Appeals Counsel and

18

provided additional evidence. ECF Docket No. (“Dkt.”) 19, Ex. 1. Specifically,

19

Plaintiff provided a Medical Source Statement from psychiatrist Catherine

20

Stinnett, MD dated June 16, 2015 regarding Plaintiff’s mental limitations and

21

requested that it be included in Plaintiff’s file. Id. The evaluation form states Dr.

22

Stinnett first examined Plaintiff on May 6, 2010 and thereafter every six to twelve

23

months through her most recent examination on January 8, 2015. Id. at 6. Dr.

24

Stinnett opined Plaintiff had an extreme limitation in her ability to interact

25

appropriately with the public, and marked limitations in her abilities to: (1)

26

maintain attendance and punctuality during a workday and workweek; (2) perform

27

at a consistent pace without more than regular breaks in a work day; (3) interact

28
2

1

appropriately with supervisors; and (4) interact appropriately with co-workers. Id.

2

at 4.

3

On July 18, 2016, the Appeals Council denied Plaintiff’s request for review.

4

AR at 1-7. The Appeals Counsel stated it “looked at” the medical source

5

statement from Dr. Stinnett, but noted the ALJ decided Plaintiff’s case through

6

February 27, 2015. Id. at 2. Therefore, the Appeals Counsel held the statement

7

from Dr. Stinnett did not affect the ALJ’s decision because it “is about a later

8

time.” Id.

9

On September 18, 2016, Plaintiff filed the instant action challenging the final

10

decision of the Commissioner denying her application for SSI. Dkt. 1, Compl. On

11

April 17, 2017, Plaintiff filed the instant Motion seeking to have the Court remand

12

the case to the ALJ for consideration of Dr. Stinnett’s statement. Dkt. 19. On June

13

21, 2017, Defendant filed an Opposition. Dkt. 25. On June 30, 2017, Plaintiff filed

14

a Reply. The matter thus stands submitted.

15

II.

16

STANDARD FOR EVALUATING DISABILITY

17

To qualify for SSI, a claimant must demonstrate a medically determinable

18

physical or mental impairment that prevents her from engaging in substantial

19

gainful activity, and that is expected to result in death or to last for a continuous

20

period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir.

21

1998). The impairment must render the claimant incapable of performing the work

22

she previously performed and incapable of performing any other substantial gainful

23

employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094,

24

1098 (9th Cir. 1999).

25
26
27
28

To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ
conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:
1. Is the claimant presently engaged in substantial gainful activity? If so, the
claimant is found not disabled. If not, proceed to step two.
3

2. Is the claimant’s impairment severe? If not, the claimant is found not

1

disabled. If so, proceed to step three.

2

3. Does the claimant’s impairment meet or equal one of the specific

3
4

impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,

5

the claimant is found disabled. If not, proceed to step four.2
4. Is the claimant capable of performing work she has done in the past? If so,

6

the claimant is found not disabled. If not, proceed to step five.

7

5. Is the claimant able to do any other work? If not, the claimant is found

8

disabled. If so, the claimant is found not disabled.

9
10

See Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949,

11

953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1).
The claimant has the burden of proof at steps one through four, and the

12
13

Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-

14

54. Additionally, the ALJ has an affirmative duty to assist the claimant in

15

developing the record at every step of the inquiry. Id. at 954. If, at step four, the

16

claimant meets her burden of establishing an inability to perform past work, the

17

Commissioner must show that the claimant can perform some other work that

18

exists in “significant numbers” in the national economy, taking into account the

19

claimant’s residual functional capacity (“RFC”), age, education, and work

20

experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R.

21

§§ 404.1520(g)(1), 416.920(g)(1).

22

///

23

///

24

///

25
26
27
28

“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s [residual functional capacity],” or ability to work after accounting for
her verifiable impairments. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
1222-23 (9th Cir. 2009) (citing 20 C.F.R. § 416.920(e)). In determining a
claimant’s residual functional capacity, an ALJ must consider all relevant evidence
in the record. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
4
2

1

III.

2

THE ALJ’S DECISION

3

A.

STEP ONE
At step one, the ALJ found Plaintiff has not engaged “in substantial gainful

4
5

activity since . . . the application date.” AR at 32.

6

B.

STEP TWO
At step two, the ALJ found Plaintiff “ha[d] the following ‘severe’

7
8

impairments: major depression; anxiety disorder; and attention deficit

9

hyperactivity disorder (ADHD) (20 CFR 416.920(c)).” Id.

10

C.

STEP THREE
At step three, the ALJ found Plaintiff does “not have an impairment or

11
12

combination of impairments that meets or medically equals the severity of one of

13

the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

14

416.920(d), 416.925 and 416.926).” Id. at 33.

15

D.

RFC DETERMINATION

16

The ALJ found Plaintiff had the following RFC:

17

to perform a full range of work at all exertional levels but with the

18

following nonexertional limitations: she is limited to work involving

19

simple repetitive tasks; and she is limited to work involving no more

20

than occasional contact with co-workers, and no public contact.

21

Id. at 35.

22

E.

At step four, the ALJ found Plaintiff “has no past relevant work.” Id. at 39.

23
24

STEP FOUR

F.

STEP FIVE

25

At step five, the ALJ found “[c]onsidering [Plaintiff’s] age, education, work

26

experience, and residual functional capacity, there are jobs that exist in significant

27

numbers in the national economy that [Plaintiff] can perform.” Id.

28

///
5

1

IV.

2

DISCUSSION

3

A.

APPLICABLE LAW
Pursuant to 20 C.F.R. § 404.970(b) (2016), “[i]f new and material evidence

4
5

is submitted, the Appeals Council shall consider the additional evidence only where

6

it relates to the period on or before the date of the [ALJ] hearing decision. The

7

Appeals Council shall evaluate the entire record including the new and material

8

evidence submitted if it relates to the period on or before the date of the [ALJ’s]

9

hearing decision. It will then review the case if it finds that the [ALJ]’s action,

10

findings, or conclusion is contrary to the weight of the evidence currently of

11

record.” Id.3 Therefore, the Appeals Council must consider additional evidence

12

that is new, material, and relates to the period on or before the date of the ALJ’s

13

decision. Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir.

14

2011). New evidence is material if it bears “directly and substantially on the matter

15

in dispute.” Luna v. Astrue, 623 F.3d 1032, 1034 (9th Cir. 2010) (quoting Booz v.

16

Sec’y of Health Human Serv., 734 F.2d 1378, 1380 (9th Cir. 1984) (citation

17

omitted)). “Where the Appeals Council was required to consider additional

18

evidence, but failed to do so, remand to the ALJ is appropriate so that the ALJ can

19

reconsider its decision in light of the additional evidence.” Taylor, 659 F.3d at

20

1232-33 (remanding to ALJ where it was apparent from Appeals Council’s denial of

21

review that it had not considered plaintiff’s additional evidence).
In addition, the court “may at any time order additional evidence to be taken

22
23

before the Commissioner of Social Security, but only upon a showing that there is

24

new evidence which is material and that there is good cause for the failure to

25
26
27
28

Effective January 17, 2017, after the Appeals Council denied review in this case,
the regulations regarding when the Appeals Council is required to review new
evidence were amended. Notably, the amendment includes a new requirement that
the claimant “show good cause for not informing [the Appeals Council] about or
submitting the evidence as described in § 404.935.” 20 C.F.R. § 404.970(b)(2017).
6
3

1

incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. §

2

405(g). However, the “good cause requirement is often liberally applied.” Burton

3

v. Heckler, 724 F.2d 1415, 1417-18 (9th Cir. 1984) (finding good cause was satisfied

4

in a disability benefits termination proceeding where the “new evidence surfaced

5

after the Secretary’s final decision and therefore could not have been presented at

6

the termination hearing.”).

7

B.

8
9

ANALYSIS
Here, remand to the ALJ is appropriate so that the ALJ can reconsider his

decision in light of Dr. Stinnett’s statement. The Appeal’s Council stated it would

10

not consider the new evidence (dated June 16, 2015, after the ALJ’s decision)

11

finding it did not relate to the period on or before the date of the ALJ’s decision.

12

AR at 2. However, Dr. Stinnett’s statement does relate to the period before the

13

date of the ALJ’s decision. In fact, Dr. Stinnett’s most recent examination of

14

Plaintiff was on January 8, 2015, two months after the ALJ hearing and over a

15

month before the ALJ decision. See Dkt. 19, Ex. 1. Therefore, the Appeal’s

16

Council improperly declined to consider the new evidence.

17

Dr. Stinnett’s report is material because Dr. Stinnett’s finding Plaintiff

18

suffered from one extreme and four marked limitations may have affected the

19

ALJ’s RFC determination. As Plaintiff’s treating physician of over four years, Dr.

20

Stinnett’s opinion should “generally [be] afforded the greatest weight in disability

21

cases.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.

22

2004). In addition, “the ALJ may only reject a treating or examining physician’s

23

uncontradicted medical opinion based on clear and convincing reasons,” and in the

24

case of a conflict a treating physician’s opinion “may be rejected [only] for specific

25

and legitimate reasons that are supported by substantial evidence in the record.”

26

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008)

27

(citation and internal quotation marks omitted); see also Ghanim v. Colvin, 763

28

F.3d 1154, 1161 (9th Cir. 2014). Therefore, Dr. Stinnett’s statement is material
7

1

because it bears directly and substantially on Plaintiff’s mental limitations which

2

are the basis of Plaintiff’s RFC.

3

In addition, the Court finds the good cause requirement of 42 U.S.C. §

4

405(g) is met. Plaintiff argues that while the reasons for not requesting a statement

5

from Dr. Stinnett earlier are unknown, Dr. Stinnett’s statement was not available

6

until prepared by Dr. Stinnett on June 16, 2015, after the ALJ’s decision. Dkt. 26 at

7

3-4. Therefore, the new evidence could not have been presented at the hearing

8

before the ALJ. Hence, liberally applied, the good cause standard is met. See

9

Burton, 724 F.2d at 1417-18.

10

Moreover, remand is necessary because “there are outstanding issues that

11

must be resolved before a determination can be made, and it is not clear from the

12

record that the ALJ would be required to find the claimant disabled if all the

13

evidence were properly evaluated.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir.

14

2012) (citations omitted). Hence, the Court finds “remand to the ALJ is

15

appropriate so that the ALJ can reconsider its decision in light of the additional

16

evidence.” See Taylor, 659 F.3d at 1232-33.

17

V.

18

CONCLUSION

19

For the foregoing reasons, IT IS ORDERED that pursuant to sentence six of

20

42 U.S.C. § 405(g) this action is REMANDED for further proceedings consistent

21

with this Order. IT IS FURTHER ORDERED that the Clerk of the Court serve

22

copies of this Order on counsel for both parties.

23
24
25

Dated: August 30, 2017

HONORABLE KENLY KIYA KATO
United States Magistrate Judge

26
27
28
8