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Rael v. Astrue

March 2, 2010

ESTHER T. RAEL, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons that follow, the court recommends that Plaintiff's Motion for Summary Judgment be granted in part, the Commissioner's Cross Motion for Summary Judgment be denied, and this matter be remanded to the ALJ for further findings as directed in this opinion. The Clerk should be directed to enter judgment for plaintiff.

BACKGROUND

Plaintiff, born August 11, 1969, first applied on April 17, 1995 for disability benefits. Plaintiff alleged she was unable to work due to a heart murmur, severe migraine headaches, ankle lesion, low back pain, and leg and arm pain. (Tr. at 83, 88, 78, 79.) In a decision dated February 25, 1997, ALJ Jon R. Hunt determined that plaintiff was not disabled. (Id. at 161-67.) Upon review, the Appeals Council remanded the case and a second hearing was held on July 15, 1999. (Id. at 171, 274-285.) The claim was again denied, and the Appeals Council denied review. (Id. at 285, 45-56.)

Plaintiff then filed another application for SSI on December 16, 2004 based on fibromyalgia, back and right shoulder pain, and panic and anxiety. (Id. at 35, 291.) The SSI application was initially denied on March 30, 2007, without review of additional records, but then reopened two separate times based on administrative errors. The second request for review was denied on July 24, 2008. (Id. at 35-42, 20, 13, 9.) The March 30, 2007 decision of the ALJ therefore constitutes the final decision of the Commissioner. (Id. at 35-42.) In this decision, ALJ William C. Thompson, Jr. made the following findings:*fn2

1. The claimant has not engaged in substantial gainful activity since April 17, 1995, the alleged onset date (20 CFR 416.920(b) and 416.971 et seq.).

2. The claimant has the following severe impairments: obesity and anxiety (20 CFR 416.920(c)).

3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light exertional work as defined in the Dictionary of Occupational Titles and the Social Security Regulations with little public contact.

5. The claimant has no past relevant work (20 CFR 416.965). 6. The claimant was born on August 11, 1969 and was 37 years old, which is defined as a "younger individual age 18-44, on the date the application was filed (20 CFR 416.963).

7. The claimant has a "limited" education, is literate (Exhibit B1E, p. 1), and is able to communicate in English (20 CFR 416.964).

8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).

9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.960(c) and 416.966).

10. The claimant has not been under a disability, as defined in the Social Security Act, since December 16, 2004, the date the application was filed (20 CFR 416.920(g)). (Tr. at 35-42.)

ISSUES PRESENTED

Plaintiff has raised the following issues: A. Whether the ALJ's Credibility Findings are not Supported by Substantial Evidence; B. Whether the ALJ's Implied Finding that Plaintiff's Fibromyalgia and Back Pain are not Severe is not Based on Substantial Evidence; C. Whether the ALJ Failed to Adequately Explain the Basis for the RFC; D. Whether the ALJ Failed to Provide Legitimate Reasons for Rejecting Dr. Gross' Opinion; and E. Whether the ALJ Erred in Failing to Admit the Updated Records Submitted on October 13, 2006 as Part of the Record.

LEGAL STANDARDS

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). ANALYSIS

A. Whether the ALJ Erred in Failing to Admit Updated Records

Plaintiff claims that the ALJ left the hearing open for submission of further medical records which plaintiff timely submitted on October 13, 2006, but he apparently did not consider them. Plaintiff has filed these records in the case as they were not included in the transcript submitted by the Commissioner, and requests that they be added to the record. (Dkt. # 14.)

New evidence is "material," if the court finds a reasonable possibility that considering the evidence would have changed the disability determination.*fn3 See Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380-1381 (9th Cir. 1984). Unless it is probative of plaintiff's condition at or before the disability hearing, new evidence is not material. See 42 U.S.C. § 416(i)(2)(G); Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 511-12 (9th Cir. 1987) (holding that new evidence was not material because it related to a medical condition not significantly at issue at time of hearing).*fn4

"Good cause" requires more than "simply . . . obtaining a more favorable report from an expert witness once [a] claim is denied. The claimant must establish good cause for not seeking the expert's opinion prior to the denial. . . ." Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990) (citing Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.1985)). For example, good cause exists if new evidence earlier was unavailable, in the sense that it could not have been obtained earlier. Embrey v. Bowen, 849 F.2d 418, 423-24 (9th Cir.1988).

The new records are dated between February 5, 1998 and July 14, 2006, and include updated records of Drs. Malak and Barzaga, plaintiff's treating physicians, as well as records from St. Joseph's Medical Center. Plaintiff argues that the records are material because they show that plaintiff has been treated regularly and aggressively, contrary to the ALJ's findings that plaintiff was not credible in part due to the lack of treatment and lack of objective findings. Plaintiff also contends that this new evidence is relevant to whether plaintiff's fibromyalgia and back impairment are severe impairments, and explains limitations in her RFC in combination with her other impairments.

Pursuant to 20 C.F.R. § 404.1512(d), the ALJ will make "every reasonable effort" to obtain evidence from medical sources. The record will be kept open after the hearing for submission of post-hearing evidence known to be in existence. 1 Soc. Sec. Disab. Claims Prac. & Proc. § 16:57 (2nd Ed.) "Even if the ALJ does not hold a record open for submission of new evidence, evidence can be submitted up to the date a hearing decision is issued." Id.

In this case, the hearing occurred on September 5, 2006, and the ALJ agreed to hold record open for submission of these records. (Tr. at 467.) On October 13, 2006, plaintiff timely submitted the records of treating sources, all dated prior to the hearing. The ...


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