The opinion of the court was delivered by: Frederick F. Mumm United States Magistrate Judge
Plaintiff brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration denying her applications for Social Security Disability Insurance ("SSDI") benefits and Supplemental Security Income ("SSI") benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. Pursuant to the case management order entered on September 28, 2009, the parties filed a Joint Stipulation (the "JS") detailing each party's arguments and authorities on May 25, 2010. The Court has reviewed the administrative record ("AR"), filed by defendant on March 19, 2010, and the JS. For the reasons stated below, the decision of the Commissioner is reversed and remanded for further proceedings.
On May 5, 2005, plaintiff filed applications for SSDI and SSI benefits. She alleged a disability onset of May 5, 2005. Plaintiff's claim was denied initially and upon reconsideration. A request for a hearing before an administrative law judge ("ALJ") was timely filed. ALJ Thomas Tielins held a hearing on July 25, 2008. Plaintiff appeared with counsel and testified at the hearing. Thereafter, the ALJ issued a decision denying benefits. Plaintiff sought review of this decision before the Appeals Council, who denied the request for review on July 22, 2009.
Plaintiff commenced the instant action on September 16, 2009.
Plaintiff raises a number of interrelated issues in this action. The crux of plaintiff's appeal is a claim that a lack of medical records prejudiced plaintiff's applications. Plaintiff also contends that given the length of time between the consultative examination and the hearing, the consultative examiner's findings should have been updated. Finally, plaintiff contends that the ALJ improperly discounted plaintiff's allegations of subjective symptoms.
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. This Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 929-30 (9th Cir. 1986). Where evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
Claims Relating to the Paucity of Medical Records
Plaintiff asserts that the record is lacking all of the records of plaintiff's mental treatment and many physical treatment records from her treating physician. Plaintiff contends that the ALJ should have made a greater effort to locate these records. Defendant argues that the agency contacted plaintiff's treating physician on three separate occasions, but the physician did not respond. Moreover, plaintiff's counsel obtained some records and provided them in the administrative proceedings. Defendant also argues that the agency contacted Kaiser (where plaintiff received mental treatment) on three occasions. Kaiser responded that it had no records. The agency also arranged for a consultative examination of plaintiff regarding her physical condition.
The claimant has the burden of proving disability. 20 CFR ¶ 404.1512(a) ("[Y]ou have to prove to us that you are... disabled.") However, the ALJ has an independent duty to fully and fairly develop the record and to assure that the claimant's interests are considered, even when the claimant is represented. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996) (citing Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). Here, although the record admittedly lacked any treatment records from plaintiff's psychiatrist and many records from plaintiff's treating physician, the ALJ took every reasonable step to develop a complete record. Pursuant to 20 CFR ¶ 404.1512(d), the agency will contact a claimant's treating sources twice to obtain records; here, plaintiff's sources were both contacted three times. Moreover, given the paucity of medical records, the ALJ obtained a consultative examination of plaintiff. These actions were sufficient to comply with the ALJ's duty to develop the record with respect to plaintiff's physical complaints.
With respect to plaintiff's alleged mental impairment, as far as the Court can tell from the AR, it appears that the ALJ obtained a non-examining doctor to review records and fill out the "Psychiatric Review Technique" form. It is unclear what records this doctor reviewed, given that records from plaintiff's treating psychiatrist were never obtained. Ordinarily, an ALJ may not decide an issue against a claimant based on an absence of evidence in the record. See Armstrong v. Comm'r of Soc. Sec. Admin., 160 F.3d 587, 589-90 (9th Cir. 1998). Despite requesting records, the ALJ had no mental treatment medical records available to him. Therefore, the ALJ had a duty to develop the record. "The ALJ may discharge [the duty to develop the record] in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record." Tonapetyan, 242 F.3d at 1150; see also Smolen v. Chater, 80 F.3d 1273, 1288 ...