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Cunningham v. Colvin

United States District Court, Ninth Circuit

January 28, 2014

FELIX CUNNINGHAM, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

MEMORANDUM OPINION AND ORDER OF REMAND

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.

PROCEEDINGS

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.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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).

STANDARD OF REVIEW

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).

DISCUSSION

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 about particular kinds of errors when the specific factual circumstances in which the error arises may well make all the difference.

Shinseki v. Sanders , 556 U.S. 396, 411-12 (2009) (cited with approval in McLeod v. Astrue , 640 F.3d 881, 886-87 (9th Cir. 2011) ("McLeod")).

[D]espite the burden to show prejudice being on the party claiming error by the administrative agency, the reviewing court can determine from the circumstances of the case that further administrative review is needed to determine whether there was prejudice from the error. Mere probability is not enough. But where the circumstances of the case show a substantial likelihood of prejudice, remand is appropriate so that the agency can decide whether re-consideration is necessary. By contrast, where harmlessness is clear and not a borderline question, remand for reconsideration is not appropriate.

McLeod , 640 F.3d at 888.

In the present case, several considerations material to the harmless error analysis point in opposing directions. Dr. Yang's opinions predated Plaintiff's alleged disability onset (A.R. 177, 323). "Medical opinions that predate the alleged onset of disability are of limited relevance." Carmickle v. Commissioner , 533 F.3d 1155, 1165 (9th Cir. 2008). Yet, notwithstanding the relative remoteness in time of Dr. Yang's opinions, the ALJ's decision expressly gives "great weight" to those opinions. In finding the receipt of improper evidence not harmless, courts have emphasized the ALJs' express placement of significant weight on the improper evidence. See, e.g., Farr v. Colvin, 2014 WL 47379, at *10 (M.D. Pa. Jan. 6, 2014) ("because the ALJ placed great weight' on the [improper evidence]... we cannot determine if the ALJ would have come to the same conclusion if he placed no weight on the [improper evidence]"); see also Lantelme v. Astrue, 2012 WL 4056862, at *5 (E.D. Cal. Sept. 14, 2012) (reliance on the improper evidence not harmless where the ALJ gave "substantial weight" to the evidence).

Notwithstanding the "great weight" accorded to Dr. Yang's opinion, the ALJ expressly gave "the most probative weight" to the opinions of Dr. Craig Rath, a non-examining medical expert (A.R. 37). Generally, however, the opinion of an examining physician "carries more weight" than the opinion of a non-examining physician. See Holohan v. Massanari , 246 F.3d 1195, 1202 (9th Cir. 2001). Further, Dr. Rath's opinions may not have been entirely independent of Dr. Yang's opinions. Dr. Rath read and may have relied on Dr. Yang's opinions (A.R. 60). Similarly, the ALJ expressly gave Dr. Rath's assessment "the most probative weight because it is well supported by the minimal treatment record and the various evaluations that find GAF scores ranging from mild to moderately mild" (A.R. 37) (emphasis added). One of these "various evaluations" was the evaluation done by Dr. Yang (A.R. 326).

Dr. Yang was only one of three examining physicians who rendered similar conclusions regarding Plaintiff's mental and emotional capacity (A.R. 38-39). Yet, while the ALJ expressly gave "great weight" to the opinions of Dr. Yang, the ALJ gave only "some weight" to the opinions of the other two examining physicians, Dr. Reynaldo Abejuela and Dr. Ernest Bagner (id.). Notably, Dr. Abejuela read and may have relied on Dr. Yang's opinions (A.R. 347).

As the circumstances of the present case illustrate, application of the harmless error standard is sometimes fraught with uncertainty. The standard requires remand where there exists a "substantial likelihood of prejudice, " but not where there exists only a "mere probability" of prejudice, where "harmlessness is clear" or where harmlessness is "not a borderline question." McLeod , 640 F.3d at 888. As discussed above, the circumstances of the present case do not appear to render harmlessness "clear, " but also may not render the "likelihood of prejudice" "substantial." Perhaps the harmlessness issue here presents a "borderline question."[1]

As previously mentioned, the factors informing a reviewing court's harmless error analysis potentially include "a consideration of the error's likely effects on the perceived fairness, integrity, or public reputation of judicial proceedings." Shinseki v. Sanders , 556 U.S. at 411-12. The error here under review, the giving of "great weight" in the disability analysis to the opinions of a doctor previously terminated for "performance and ethical reasons, "[2] significantly implicates "the perceived fairness, integrity or public reputation" of the proceedings. For this reason, and the other reasons discussed above, the Court elects not to deem the error harmless.

ORDER

Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.[3]

LET JUDGMENT BE ENTERED ACCORDINGLY.


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