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Cunningham v. Colvin

United States District Court, Ninth Circuit

January 28, 2014



CHARLES F. EICK, Magistrate Judge.

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.


Plaintiff filed a complaint on June 25, 2013, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on August 7, 2013. Plaintiff filed a motion for summary judgment on December 17, 2013. Defendant filed a cross-motion for summary judgment on January 16, 2014. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order, " filed June 27, 2013.


Plaintiff asserts disability based primarily on allegedly longstanding mental and emotional impairments (Administrative Record ("A.R.") 29-416). The Administrative Law Judge ("ALJ") found Plaintiff "has the following severe impairments: depressive disorder, nos; learning disorder; and personality disorder, nos with anti-social features" (A.R. 32). The ALJ also found, however, that Plaintiff retains the residual functional capacity to perform moderately stressful, "task oriented-object oriented" work involving "no intrusive supervision or general public contact, " including Plaintiff's past relevant work (A.R. 35, 39). In thus finding Plaintiff not disabled, the ALJ expressly gave "great weight" to the opinions of Dr. Jason Yang, a consultative examining psychiatrist (A.R. 38; see A.R. 323-27 (Dr. Yang's opinions)). The Appeals Council considered additional evidence but denied review, which made the ALJ's decision the "final decision" of the Administration (A.R. 3-6).


Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used proper legal standards. See Carmickle v. Commissioner , 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue , 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401 (1971) (citation and quotations omitted); Widmark v. Barnhart , 454 F.3d 1063, 1067 (9th Cir. 2006).

Where, as here, the Appeals Council considered additional material but denied review, the additional material becomes part of the Administrative Record for purposes of the Court's analysis. See Brewes v. Commissioner , 682 F.3d 1157, 1163 (9th Cir. 2012) ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence."; expressly adopting Ramirez v. Shalala , 8 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner , 659 F.3d 1228, 1231 (2011) (courts may consider evidence presented for the first time to the Appeals Council "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan , 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. ยงยง 404.970(b), 416.1470(b).


Prior to the ALJ's decision, the California Department of Social Services terminated Dr. Jason Yang's service as a consultative examiner (A.R. 302-03; see Brandl v. Astrue, 2012 WL 3887097, at *4 (C.D. Cal. Sept. 7, 2012)). The reasons for Dr. Yang's termination included the fact that, notwithstanding prior warnings by the Department of Social Services, Dr. Yang had continued to render consultative examination reports containing "identical or nearly identical mental status examination findings" for many different claimants. See id.

Defendant now concedes that the ALJ erred in relying on the suspect opinions of Dr. Yang (Defendant's Motion at 2). At issue is whether this error was harmless.

"[A]n ALJ's error is harmless where it is inconsequential to the ultimate non-disability determination." Molina v. Astrue , 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted). "[W]e must analyze harmlessness in light of the circumstances of the case." Id. at 1121 (citations and quotations omitted).

[T]he factors that inform a reviewing court's "harmless-error" determination are various, potentially involving, among other case-specific factors, an estimation of the likelihood that the result would have been different, an awareness of what body (jury, lower court, administrative agency) has the authority to reach that result, a consideration of the error's likely effects on the perceived fairness, integrity, or public reputation of judicial proceedings, and a hesitancy to generalize too broadly ...

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