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Baxter v. Colvin

United States District Court, N.D. California

December 10, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Jaime Amanda Baxter, Plaintiff: Robert Chipley Weems, Weems Law Offices, Fairfax, CA.

For Comm'r of SSA Carolyn W. Colvin, Defendant: Alex Gene Tse, U.S. Attorneys Office, San Francisco, CA; Jean Marie Turk, Attorney at Law, San Francisco, CA.


WILLIAM H. ORRICK, United States District Judge.


Plaintiff Jaimie Amanda Baxter suffers from a history of post-traumatic stress disorder, major depression, and cognitive disorder. She argues that the Administrative Law Judge (ALJ) failed to fully and fairly develop the record and violated her due process right to be heard when he amended a prior decision granting Baxter benefits from 2005 and issued a new decision granting benefits from 2008 without holding a supplemental hearing. The ALJ erred by failing to follow an applicable regulation regarding the reopening of decisions. Baxter's motion is GRANTED, the Commissioner's motion is DENIED, and the matter is remanded for further proceedings.


On November 3, 2008, Baxter filed applications for disability insurance benefits and for Supplemental Security Income (" SSI") benefits under Title II and Title XVI of the Social Security Act, claiming that she had been disabled since July 1, 2005 as a result of depression, acquired hydrocephalus, meningitis, vision, neck, back problems, and brain surgery. Administrative Record (" AR") AR 243-249. The applications were denied initially on April 6, 2009 and upon reconsideration on August 11, 2009. AR 120, 129. On July 26, 2010, Baxter's counsel wrote to the ALJ stating that Baxter had made a previous application in 2005, and arguing that the prior application should be reopened or have a 91-5p, hearing.[1] AR 138. A hearing before an ALJ took place on September 14, 2010. AR 97-117.

At the hearing, the ALJ informed Baxter's counsel that a search of the Agency's electronic records and the paper file sources failed to show evidence of a prior application in 2005. AR 101-102. In response, Baxter's counsel produced a document purporting to be from the Social Security Administration (" SSA") listing the date of the alleged application, September 16, 2005, and suggested that he might have a copy of the initial denial of the application in storage. AR 102, 278. Counsel had no other documentary evidence of Baxter's application. He suggested that the SSA could not find evidence of Baxter's 2005 application because the application may have been lost when the SSA paper files were changed over to electronic records, or that the records may have been lost simply due to the size and complexity of the Los Angeles office, where Baxter allegedly filed her 2005 application. AR 103. Finally, Baxter's counsel argued that a 91-5p, determination might be necessary to show Baxter had good cause for not appealing the denial of her 2005 application. AR 102.

During the September 2010 hearing, counsel asserted that Baxter herself would testify that she applied in 2005 and received a denial letter in 2005, and that at the time she had no representation. AR 102. Baxter, however, did not testify during the hearing. She left the hearing claiming that the phone noise disturbed her and aggravated her pain. AR 106. Baxter's counsel waived her presence at the hearing. Id. Baxter's therapist, Caroline Conley, M.F.T., was present and testified that Baxter came to a therapy session in the fall of 2005 and indicated she was depressed because her social security application had been denied. AR 112-113. Conley stated Baxter was having a lot of mental problems at the time and would have been unable to pursue the denial of her application. AR 113.

On September 20, 2010, the ALJ rendered a decision finding that Baxter did not have the capacity to pursue her claim and reopening her alleged 2005 application (using a file date of September 16, 2005), [2] finding her disabled since July 1, 2005, and awarding benefits starting on that date. AR 55-59. The ALJ accepted " Baxter's testimony" about her prior application, even though she had not testified, as well as Conley's testimony, and the documentary evidence Baxter's counsel provided as sufficient proof that Baxter had filed an SSI application on September 16, 2005. AR 58.

On January 25, 2011, the ALJ reopened and revised the September 20, 2010 decision. AR 49. The ALJ found he erred in the September 20, 2010 decision in finding that there was sufficient proof of the 2005 application. Id. The ALJ explained that in effectuating the September 20, 2010 decision, the Social Security field office determined that the documentary evidence presented by Baxter's counsel at the hearing, and accepted by the ALJ as sufficient proof of the 2005 application, was not from the SSA but from the California Employment Development Department (" EDD"). AR 49-50, 278. According to the Social Security field office, there was no record of Baxter filing a prior application. AR 49-50, 242. Before issuing the revised decision, the ALJ asked his staff to investigate the existence of an application prior to November 3, 2008, but his staff found no evidence of a prior application. AR 49-50, 240. The ALJ also noted that he requested paper files to be searched and produced, but no documents regarding a 2005 application were found. AR 49.

On reconsideration, the ALJ determined there was no " reliable evidence" of an SSI application from 2005, and that the document provided by her counsel established only that Baxter may have filed a claim at that time with the EDD. AR 50. The ALJ concluded that the only application that could be verified as having been filed with the Social Security Agency was the November 2008 application. Id. Based on that application, Baxter could only receive benefits from December 2008. Id.[3]

On January 12, 2012, the Appeals Council denied a request to review the ALJ's revised decision awarding Baxter benefits from December 2008, and that decision became the final decision of the Commissioner. AR 1. Baxter filed this action for judicial review pursuant to 42 U.S.C. § 405(g). Dkt. No. 1.

After receiving Baxter's motion for summary judgment, the SSA again investigated the existence of a 2005 application. Defendant's Cross-Motion for Summary Judgment (" Def's. Mot.") at 4. Along with the cross-motion, the Commissioner submitted the declaration of Michael Hanson, the SSA's Team Leader in the Office of the Regional Commissioner, Program Center ...

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