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Kevin Haynes v. Carolyn W. Colvin


February 26, 2013



This social security action was submitted to the court without oral argument for ruling on plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment. For the reasons explained below, plaintiff's motion is granted, defendant's cross-motion is denied, the decision of the Commissioner of Social Security (Commissioner) is reversed, and the matter is remanded for further proceedings consistent with this order.


On June 21, 2007, plaintiff filed an application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act) and for Supplemental Security Income (SSI) under Title XVI of the Act, alleging disability beginning on January 30, 2002. (Transcript (Tr.) at 109-11.) Plaintiff's application was denied initially and upon reconsideration. (Id. at 70-79.) A hearing was held before an Administrative Law Judge (ALJ) on April 1, 2009. (Id. at 25- 62.) Plaintiff was represented by counsel and testified at the administrative hearing. In a decision issued on November 20, 2009, the ALJ found that plaintiff was not disabled. (Id. at 11-20.) The ALJ entered the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2005. However, the record is devoid of objective evidence of record or clinical finding which would support disability being established before June 30, 2005.

2. The claimant has not engaged in substantial gainful activity since January 30, 2002, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.). Nonetheless, in support of the alleged onset date the claimant was not disabled prior to June 30, 2005 and is therefore not entitled to a Title II disability benefits prior to June 30, 2005 the date last insured.

3. The claimant has the following medically determinable impairments: should injury, tendonitis in elbow, arthritis in hand, hepatitis C, kidney stones, and depression (20 CFR § 404.1521 et seq. and 416.921 et seq.).

4. 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 404.1520(d), 404.1525, 404.1526, 416.920(d)d (sic), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant is limited to simple unskilled work.

5. (sic) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

6. The claimant was born on March 8, 1955, and was 46 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

7. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

8. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

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 404.1569, 404.1569(a), 416.969, and 416.969(a)).

10. The claimant has not been under a disability, as defined in the Social Security Act, from January 30, 2002 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)). (Id. at 13-19.)

On January 14, 2011, the Appeals Council denied plaintiff's request for review of the ALJ's decision. (Id. at 1-3.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the complaint in this action on March 16, 2011.


The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record as a whole and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Morgan, 169 F.3d at 599); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

A reviewing court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion. Jones, 760 F.2d at 995. The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or non-disability, the finding of the ALJ is conclusive, Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

In determining whether or not a claimant is disabled, the ALJ should apply the five-step sequential evaluation process established under Title 20 of the Code of Federal Regulations, Sections 404.1520 and 416.920. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step process has been summarized as follows:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).


Plaintiff argues that the ALJ committed the following four principal errors in finding him not to be disabled: (1) the ALJ's failed to properly characterize the medical evidence; (2) the ALJ failed to adequately develop the record; (3) the ALJ failed to credit plaintiff's testimony without a legitimate reason for doing so; and (4) the ALJ failed to utilize the expertise of a Vocational Expert.

I. Medical Evidence & Failure to Develop The Record*fn1 Plaintiff argues that the ALJ's opinion finding him not to be disabled ignores significant and compelling evidence regarding plaintiff's mental impairment and that the ALJ failed to develop the record, specifically by failing to order an updated consultative examination. (Pl.'s MSJ (Doc. No. 14) at 20-25*fn2 .)

The ALJ has an affirmative duty to assist a claimant in developing the record at every step of the inquiry. Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001); see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (ALJ has special duty to fully and fairly develop record and to assure that claimant's interests are considered). One of the tools available to an ALJ in developing a record is the consultative examination. See 20 C.F.R. §§ 404.1512(e), 404.1517 ("If your medical sources cannot or will not give us sufficient medical evidence about your impairment for us to determine whether you are disabled . . ., we may ask you to have one or more physical or mental examinations or tests."). The Commissioner has broad latitude in ordering such an examination and the government is not required to bear the expense of examination for every claimant. See Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001). However, a consultative examination is normally required where there is an indication of a change in a claimant's condition that is likely to affect the claimant's ability to work, and the current severity of the claimant's impairment is not established. See 20 C.F.R. § 404.1519a(b)(4).

Here, the ALJ's opinion relied considerably on the consultative examination of Dr. Timothy Canty, who examined plaintiff on September 26, 2007, for a psychiatric evaluation. (Tr. at 273.) In this regard, the ALJ stated in his decision:

To fully delineate the claimant's mental status, the claimant underwent a consultative psychiatric evaluation In (sic) September 2007 conducted by Timothy Canty, M.D. However, he appears to have already responded to treatment. He shows up early and does not have any significant psychiatric complaints or neurovegetative symptoms. He is planning on volunteering at the homeless shelter with hope of getting fulltime employment. He has a past history of cocaine abuse in remission for about 16 years. His mental status examination is essential (sic) normal and a GAF of 80 which would indicate no more than slight impairment in social or occupational functioning. In summary, the claimant's impairment appears non-severe (Exhibit 5F, 7F).

(Id. at 17.)

Dr. Canty's examination, however, was conducted over a year and a half prior to the administrative hearing before the ALJ in this case and evidence from plaintiff's medical records indicated that plaintiff's condition may have worsened during that year and a half period of time.*fn3 In this regard, on March 3, 2009, plaintiff was seen by Dr. Han Nguyen for an Adult Mental Health Services Annual Medication Service Plan. (Id. at 408.) According to Dr. Nguyen's report, at that time plaintiff's speech was "loud, fast" and his mood was "depressed." (Id. at 409.) Dr. Nguyen diagnosed plaintiff as suffering from "Bipolar d/o, MRF, depressed, severe without psychosis" and found his GAF at that time was only 50.*fn4 (Id. at 408.)

Despite this evidence of a possible change in plaintiff's condition, the ALJ did not order an updated consultative examination. Moreover, the ALJ's opinion fails to address the discrepancy between Dr. Canty's findings and Dr. Hguyen's report and affirmatively misstates the record, claiming that "the record does not reflect any objective or clinical finding that show (sic) the claimant has been diagnosed with bipolar disorder." (Id. at 15.) As noted above, Dr. Nguyen diagnosed plaintiff as suffering from bipolar disorder in his March 3, 2009 Adult Mental Health Services Annual Medication Service Plan report. (Id. at 408.) Moreover, Dr. Nguyen's diagnosis was rendered much more recently than Dr. Canty's findings.

The ALJ's failure to address Dr. Nguyen's report, and to develop the record fully through an updated consultative examination, constitutes legal error. See Lingenfelter v. Astrue, 504 F.3d 1028, 1037-38 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (finding legal error where ALJ ignored medical evidence of claimant's impairments without explanation); Cotton v. Bowen, 799 F.2d 1403, 1408-09 (9th Cir. 1986) (finding legal error where ALJ's findings ignored medical evidence without giving specific, legitimate reasons for doing so), superceded by statute on another point as stated in Bunnell v. Sullivan, 912 F.2d 1149 (9th Cir. 1990).

Accordingly, the court finds that plaintiff is entitled to summary judgment in his favor with respect to his contention that the ALJ erred the in failing to properly characterize the medical evidence of record and in failing to adequately develop the record.


With error established, the court has the discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). However, where there are outstanding issues that must be resolved before a determination can be made, or it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. Id. at 594.

Here, this case must be remanded to allow the ALJ to consider Dr. Nguyen's report and, if necessary, to order a timely consultative examination.*fn5 See Cotton, 799 F.2d at 1408-09. Moreover, depending upon the nature of any new evidence and after reevaluating all of the evidence of record, the ALJ may well elect to reconsider his treatment of plaintiff's testimony and may also deem it appropriate to conduct a supplemental hearing with testimony from a vocational expert.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (Doc. No. 14) is granted;

2. Defendant's cross-motion for summary judgment (Doc. No. 15) is denied;

3. The Commissioner's decision is reversed; and

4. This matter is remanded for further proceedings consistent with this order.


Ddad1/orders.soc sec/haynes0730.order

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