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Johnson v. Colvin

United States District Court, C.D. California

August 8, 2016

RONALD C. JOHNSON, Jr., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         On June 26, 2012, Plaintiff Ronald C. Johnson, Jr., filed an application for supplemental security income (“SSI”). The Social Security Administration denied Plaintiff’s application initially on November 19, 2012, and on reconsideration on May 20, 2013. Following a request for a hearing, Plaintiff appeared and testified at hearings on February 11, 2014 and July 2, 2014. An Administrative Law Judge (“ALJ”) issued an unfavorable decision on August 25, 2014. Plaintiff sought review of this decision, which the Appeals Council denied.

         Plaintiff filed a Complaint in this Court on October 30, 2015, seeking review of the Commissioner’s denial of his application for SSI. In accordance with the Court’s Case Management Order, Plaintiff filed a memorandum in his support of his complaint on April 18, 2016 (ECF No. 16), and the Commissioner filed a memorandum in support of her answer on May 20, 2016. (ECF No. 17.) Plaintiff did not file a reply. This matter is now ready for decision.[1]

         I. Standard of Review

         Under 42 U.S.C. § 405(g), a district court may review a decision from the Social Security Commissioner to deny disability benefits. An ALJ’s findings and decision must be upheld if they are supported by “substantial evidence” and are “free of legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means “more than a mere scintilla” of evidence, but less than a preponderance of evidence; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

         A reviewing federal court must review the record as a whole, weighing both the evidence that supports the ALJ’s decision and the evidence that may detract from it. See Lingenfelter, 504 F.3d at 1035. The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Where evidence is susceptible of more than one rational interpretation, the reviewing federal court must uphold the Commissioner’s decision. See Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

         Error in a social security determination is subject to harmless error analysis. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Reversal “is not automatic, but requires a determination of prejudice.” Id. A reviewing federal court must consider case-specific factors, including “an estimation of the likelihood that the result would have been different, as well as the impact of the error on the public perception of such proceedings.” Id. (footnote and citation omitted).

         II. Discussion

         Plaintiff contends that the decision of the Commissioner should be reversed because the ALJ failed to fully and fairly develop the record, specifically by failing to obtain a medical expert’s opinion regarding the severity of Plaintiff’s physical impairments and whether or not Plaintiff met or equaled a listing, and by failing to send Plaintiff to a mental health consultative examination. (ECF No. 16 at pp. 2-3.) The Commissioner responds that Plaintiff has waived these issues by failing to raise them during the administrative proceedings and, in any event, that the ALJ did not commit reversible error.

         A. Waiver

         The Court will first address the Commissioner’s contention that Plaintiff waived its current challenges by failing to raise them during the administrative proceedings. The law is settled in the Ninth Circuit that “at least when claimants are represented by counsel, they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal, ” and that the failure to comply with this rule will be excused only “when necessary to avoid a manifest injustice.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999); see also Phillips v. Colvin, 593 Fed.Appx. 683, 684 (9th Cir. 2015) (finding waiver of issue by “[claimant’s] failure to raise it at the administrative level when he was represented by counsel, and [claimant] has not demonstrated manifest injustice excusing the failure”); Simpson v. Colvin, 2016 WL 3091487 at *1-2, (C.D. Cal. May 31, 2016) (applying Meanel and finding waiver based on failure to raise issue at administrative level); Butt v. Colvin, 2016 WL 1715167 at *1 (C.D. Cal. April 27, 2016) (same).

         Here, Plaintiff was represented by legal counsel at the February 11, 2014 administrative hearing and at the July 2, 2014 hearing. (AR 40, 78.) Counsel also represented Plaintiff before the Appeals Council (AR 12), and the same firm represents Plaintiff in this Court. The Commissioner states it is undisputed that during the administrative hearing, Plaintiff and his counsel did not raise allegations (i) that the ALJ needed to use a medical expert, (ii) that the record was incomplete, (iii) that Plaintiff met or equaled a listing (or that a medical expert was needed for this determination), or (iv) that Plaintiff should have been sent to a mental health consultative examination. Plaintiff has not filed a reply to contest this characterization of the record.

         The Court has independently reviewed the record and confirmed that Plaintiff did not raise these issues during the administrative proceedings. At the end of the February 11, 2014 hearing, the initial ALJ stated that she was leaving the record open for a month to allow Plaintiff and his counsel to submit additional documents, so that there would be a full record. Plaintiff’s counsel agreed to this. (AR 76.) The second hearing took place on July 2, 2014 in front of a second ALJ, who said he was “starting over” because the prior ALJ had become very ill. (AR 82, 104.) Based on the exhibits entered into evidence, it appears that additional medical evidence was submitted beyond that available at the February hearing. (Compare AR 41 (admitting Exhibits 1A through 6F) with AR 83 (admitting Exhibits 1A through 11F).)

         At the end of the June 2014 hearing, the ALJ asked Plaintiff’s counsel if she had any questions for her client and whether she had any closing motions or arguments. Plaintiff’s counsel answered no. (AR 104.) The ALJ then asked “is there anything else you want to add before we call it a day?” (Id.) Plaintiff’s counsel did not answer, but Plaintiff said, “I can’t think of anything.” (Id.) Plaintiff then asked the ALJ, “How long is this going to take? It seems like, it seems like I’ve been waiting for this forever.” (Id.) By this, Plaintiff was plainly encouraging the ALJ to rule as soon as possible, and his counsel made no suggestion or indication that further development of the record was needed. The ALJ responded, “I’ve got enough information to make a decision on the case so I’m going to go ahead and do that.” (AR 105.) Plaintiff then said, “All right, ” and Plaintiff’s counsel said nothing. (AR 105-06.) The ALJ ended the hearing by asking if there were, “Any questions about anything at all?” (AR 106.) Plaintiff said no, and his counsel did not raise any final issues with the ALJ. (Id.) The ALJ issued an adverse decision ...

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