United States District Court, C.D. California
RONALD C. JOHNSON, Jr., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF
ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE.
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.
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.
Standard of Review
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).
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).
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
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.
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)
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.
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).)
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 ...