The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge
Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits and supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.
The procedural facts are undisputed and are set forth in the joint stipulation. [JS 2]. Plaintiff filed an application for disability insurance benefits on February 11, 2005, and an application for SSI benefits on April 13, 2006. Plaintiff alleged that she became disabled on October 10, 2002 due to due to asthma and a depressive disorder. [JS 2]. Plaintiff's applications were denied in a written hearing decision dated October 25, 2007. [JS 2; Administrative Record ("AR") 45, 84-92]. The Appeals Council granted plaintiff's request for review of that decision and remanded the case for further proceedings. [JS 2; AR 29, 36].
After conducting a supplemental hearing on June 12, 2008, Administrative Law Judge F. Keith Varni (the "ALJ") issued a written decision finding plaintiff not disabled on July 24, 2008. [AR 13-22, 36-44]. The ALJ incorporated the prior hearing decision by reference, which he characterized as "the decision on remand as supplemented herein." [AR 13]. The ALJ concluded that nothing in the medical evidence on remand warranted a change in the residual functional capacity ("RFC") assessed in the prior hearing decision. Accordingly, the ALJ found that plaintiff's physical impairments restricted her to medium work without concentrated exposure to extreme cold, extreme heat, fumes, odors, dusts, gases, and poor ventilation, and her mental impairments limited her to simple, routine, repetitive, nonpublic tasks. [AR 17]. The ALJ determined that plaintiff's RFC precluded performance of her past relevant work, but did not preclude her from performing alternative work available in significant numbers in the national economy. Therefore, the ALJ concluded that plaintiff was not disabled at any time through the date of his decision. The Appeals Council denied plaintiff's request for review of the ALJ's decision on remand. [AR 5-9].
The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).
Plaintiff argues that the ALJ committed legal error by failing to comply with the Appeals Council's remand order. [See JS 3-6].
In its December 2007 order of remand, the Appeals Council noted that the prior ALJ found that plaintiff retained the RFC "to perform a limited range of medium work, reduced by mental and environmental limitations." [AR 30]. The Appeals Council observed that the record included San Bernardino County Behavioral Health Center ("County Behavioral Health") treatment records containing an opinion that plaintiff "cannot work and has a GAF of 45-50, indicative of serious symptoms. The record lacks a report of a recent, comprehensive mental status examination with a medical source statement about what [plaintiff] can still do despite the impairments." [AR 30 (citing AR 317-348, 350-360)]. The Appeals Council concluded that "additional medical evidence is needed to clarify the nature and severity of the mental impairments." [AR 30]. To that end, the Appeals Council ordered the ALJ to obtain additional evidence, including (1) "updated treatment records, particularly from [County Behavioral Health]," reflecting "any additional documentation in support of the prior opinion"; and (2) "a consultative mental status examination with psychological testing and a medical source statement about what [plaintiff] can still do despite the impairments." [AR 30-31].
It is undisputed that the ALJ did not obtain a consultative mental status examination on remand. [JS 4-5; see AR 13-22, 30-31]. Defendant contends that the ALJ "did not need to order a consultative mental status examination" because he "adequately developed the record" by obtaining treatment records from County Behavioral Health along with a medical source statement about plaintiff's functional limitations. Defendant further contends that the court lacks jurisdiction to enforce the Appeals Council's remand order, and that the Appeals Council's decision denying review of the ALJ's decision on remand is entitled to deference. [JS 4-6].
The Commissioner's regulations state that the Appeals Council may remand to an ALJ "a case in which additional evidence is needed or additional action by the [ALJ] is required." 20 C.F.R. §§ 404.977(a), 416.1477(a). The ALJshould have ordered a consultative mental status examination with psychological testing because the Commissioner's regulations state that when the Appeals Council remands a case to an ALJ, the ALJ "shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council's remand order." 20 C.F.R. §§ 404.977(b), 416.1477(b). The cited regulations are binding on the Commissioner and on the ALJ. Moore v Apfel, 216 F.3d 864, 869 (9th Cir. 2000)("The Code of Federal Regulations is clearly binding upon the Commissioner . . . ."). The Commissioner's regulations are promulgated pursuant to his statutory authority to interpret and apply the Social Security Act, and courts are bound to give the Commissioner's regulations "considerable weight." See 42 U.S.C. § 405(a)(granting the Commissioner "full power and authority to make rules and regulation and to establish procedures . . . which are necessary or appropriate" to carry out the provisions of the Social Security Act); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009)(stating that the Commissioner "has statutory authority to interpret and enforce" the Social Security Act under 42 U.S.C. § 405(a), and that the Commissioner's construction of the Social Security Act must be given "considerable weight"); Das v. Dep't of Health & Human Servs., 17 F.3d 1250, 1254 (9th Cir. 1994)(same)(citing Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981) and Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)).
The ALJ offered no explanation for failing to order a consultative examination with psychological testing. Defendant does not argue, nor does the record suggest, that the ALJ's failure to order such an examination was justified by any ambiguity in the Appeals Council's remand order, or that the binding regulations requiring him to "take . . . action that [was] ordered by the Appeals Council," 20 C.F.R. §§ 404.977(b), 416.1477(b), were inapplicable or invalid in the circumstances of this case.
Nevertheless, the Commissioner's "final decision denying benefits must be affirmed unless the findings are based on legal error or are unsupported by substantial evidence." See Vernoff, 568 F.3d at 1105 (citing Mayes v. Massanari, 276 F.3d 453, 458-459 (9th Cir. 2001)). Therefore, regardless of whether the ALJ fully complied with the Appeals Council's remand order, judicial review is limited to the question whether the ...