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Webb v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

March 29, 2017

KIANA SHELENE WEBB, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DE 25), GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DE 26) and AFFIRMING THE DECISION OF THE COMISSIONER OF SOCIAL SECURITY

          Anthony P. Patti UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Plaintiff, Kiana Shelene Webb, brings this action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her applications for disability insurance (DI) benefits and supplemental security income (SSI) benefits. Plaintiff filed these applications on May 10, 2013, alleging that she has been disabled since October 18, 2011, at the age of 35. (R. at 142-145, 146-151.) Plaintiff's applications were denied on July 22, 2013, and she sought a de novo hearing before an Administrative Law Judge (“ALJ”). (R. at 67-92, 97-98, 103-105.) ALJ B. Lloyd Blair held a hearing on September 3, 2014 and subsequently determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 42-66, 22-41.) On November 4, 2015, the Appeals Council denied Plaintiff's request for review. (R. at 1-7, 16-20.) ALJ Blair's decision became the Commissioner's final decision. Plaintiff then timely commenced the instant action on January 4, 2016. (DE 1.)

         II. THE INSTANT MOTIONS

         In her motion for summary judgment, Plaintiff asserts that ALJ Blair committed reversible error by: (1) determining her claim on the basis of an incomplete record; (2) concluding at Step 3 that the severity of Plaintiff's mental impairments does not meet or medially equal the criteria of Listings 12.04 (“Depressive, bipolar and related disorders”) and 12.06 (“Anxiety and obsessive-compulsive disorders”); and (3) failing “to give adequate consideration to the expert medical opinions of Claimant's treating and examining physicians” within the Step 4 RFC determination (DE 25 at 2-3, 24-29.) The Commissioner opposes the motion and has filed a motion for summary judgment, arguing that substantial evidence supports the Commissioner's decision and that any error the ALJ may have made was harmless. (DE 26.)

         The parties have consented to my authority. (DEs 11, 14, 15.) A hearing was held on March 2, 2017, at which Plaintiff and her counsel (Lisa A. Welton) appeared in person and Defendant's counsel (AUSA Natasha Oeltjen of Massachusetts) appeared by telephone. (See DEs 28, 31, 32.) Following oral argument, I took these motions under advisement.

         III. STANDARD OF REVIEW

         The District Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case under the Social Security Act, the Court “must affirm the Commissioner's decision if it ‘is supported by substantial evidence and was made pursuant to proper legal standards.'” Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In deciding whether substantial evidence supports the ALJ's decision, the court does “not try the case de novo, resolve conflicts in evidence or decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Rogers, 486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant.”). Furthermore, the claimant “has the ultimate burden to establish an entitlement to benefits by proving the existence of a disability.” Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).

         Although the substantial evidence standard is deferential, it is not trivial. The Court must “‘take into account whatever in the record fairly detracts from [the] weight'” of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial evidence supports the ALJ's decision, this Court defers to that finding ‘even if there is substantial evidence in the record that would have supported an opposite conclusion.'” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Finally, even if the ALJ's decision meets the substantial evidence standard, “‘a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

         IV. DISCUSSION

         A. Plaintiff has not shown a procedural due process error that warrants remand.

         Plaintiff's procedural due process argument stems from Exhibit 15F's absence from the administrative record at the time the ALJ rendered his November 19, 2014 decision and extends to the Appeals Council's November 4, 2015 consideration of the missing evidence. (DE 25 at 24-25.)

         1. Submitting written evidence to an ALJ

         On August 28, 2013, Plaintiff, on her own behalf, requested a hearing by an ALJ, noting that she had additional evidence to submit from Heron Ridge Associates and Dr. Grimm. (R. at 97-98.) At that time, she was also supposed to “submit information or evidence as required by § 404.1512 or any summary of the evidence to the administrative law judge.” 20 C.F.R. §§ 404.935(a), 416.1435(a). As that regulation further provides, “[e]ach party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform [the SSA] about or submit any written evidence, as required in § 404.1512, no later than 5 business days before the date of the scheduled hearing.” 20 C.F.R. §§ 404.935(a), 416.1435(a).

         The September 3, 2013 hearing process explanation sent to Plaintiff explained the process for “Providing Additional Evidence.” (R. at 106-108.) Significantly, this notice provides: “We can help you get evidence you believe the ALJ should see. If you need help, contact our office, your local Social Security office, or your representative (if you appoint one) immediately[, ]” and “[i]f a physician, expert, or other person is not providing documents important to your case, you may ask the ALJ to issue a subpoena.” (R. at 107.) Approximately four months later, on January 9, 2014, Plaintiff retained counsel. (R. at 113-114, 115.) A hearing was noticed for September 3, 2014. (R. at 116-133.) The hearing notice contained a section entitled, “You May Submit More Evidence and Review Your File.” (R. at 117, 123.)

         The opening paragraph of Plaintiff's September 3, 2014 hearing brief alleges that “updated mental health treatment records remain outstanding from Claimant's treating psychiatrist Dr. [Mallhi], and therapist D. [Hartman][, ]” and requests that “the administrative record remain open for a period of 2 weeks post-hearing to permit submission of this material evidence upon receipt of same by Claimant's counsel.” (R. at 226-230 (emphases added).) A hearing was conducted that same day. (R. at 42-66.) Approximately 2 ½ months later, ALJ Blair issued his November 19, 2014 decision, based on medical records found at Exhibits 1F through 14F. (R. at 22-41). In other words, the ALJ issued his decision without the benefit of Exhibit 15F. There is no evidence that the ALJ failed to keep the record open for a two week period after the hearing, as requested.

         a. Plaintiff's responsibility to develop the record

         Plaintiff claims her counsel “repeatedly requested the updated mental health treatment records of HRA [Heron Ridge Associates], but the records were not produced prior to the hearing, or within the extended time provided by the ALJ post hearing.” (DE 25 at 25.) To determine whether Plaintiff had any further responsibility to develop the record once she brought it to the ALJ's attention in her hearing brief, the Court looks to the SSA regulation that specifically addresses evidence. In general, it provides:

. . . you have to prove to us that you are blind or disabled. You must inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled. This duty is ongoing and requires you to disclose any additional related evidence about which you become aware. This duty applies at each level of the administrative review process, including the Appeals Council level if the evidence relates to the period on or before the date of the administrative law judge['s] hearing decision. We will consider only impairment(s) you say you have or about which we receive evidence.

20 C.F.R. §§ 404.1512(a), 416.912(a) (emphasis added). Moreover, as to the claimant's responsibility, the evidence regulation further provides: “You must inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled. When you submit evidence received from another source, you must submit that evidence in its entirety, unless you previously submitted the same evidence to us or we instruct you otherwise.” 20 C.F.R. §§ 404.1512(c), 416.912(c) (emphasis added).

         Here, Plaintiff's counsel's hearing brief, which is dated the same day as the hearing itself, asserts that the missing evidence is “material.” (R. at 226.) Thus, even if the Commissioner is correct that Plaintiff's counsel did not raise the missing records issue at the hearing (DE 26 at 6), it is clear that she expressly brought this issue to the ALJ's attention on that same date.

         b. The ALJ's responsibility to develop the record

         In support of her argument, Plaintiff cites the regulation regarding ALJ hearing procedures:

A hearing is open to the parties and to other persons the administrative law judge considers necessary and proper. At the hearing, the administrative law judge looks fully into the issues, questions you and the other witnesses, and, subject to the provisions of § 404.935: Accepts as evidence any documents that are material to the issues; may stop the hearing temporarily and continue it at a later date if he or she finds that there is material evidence missing at the hearing; and may reopen the hearing at any time before he or she mails a notice of the decision in order to receive new and material evidence. The administrative law judge may decide when the evidence will be presented and when the issues will be discussed.

20 C.F.R. §§ 404.944, 416.1444. Plaintiff seems to allege that ALJ Blair failed to “look[] fully into the issues” at the September 3, 2014 hearing, as he “should have tried to obtain this medical evidence before deciding the claim but did not.” (DE 25 at 25.)

         Here, the Court considers whether the ALJ, having been put on notice by Plaintiff's hearing brief that certain evidence had yet to be secured, had a duty to further develop the record before issuing his decision or to withhold his decision until the records were submitted. As to the SSA's responsibility, the evidence regulation instructs:

Before we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application unless there is a reason to believe that development of an earlier period is necessary or unless you say that your disability began less than 12 months before you filed your application. We will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.

20 C.F.R. §§ 404.1512(d), 416.912(d) (emphases added). Plaintiff's argument does not cite to any evidence that she gave the ALJ permission to request the records at issue, nor does she provide authority for a presumed argument that the ALJ had a duty to withhold his decision indefinitely until the records were received. (DE 25 at 24-25.) Moreover, Plaintiff did not ask the ALJ to obtain or subpoena the additional records, let alone give permission for him to do so; to the contrary, Plaintiff made clear an intention to undertake that task herself, by stating that the material evidence would be submitted “upon receipt of same by Claimant's counsel.” (R. at 226.) The record is devoid of any request to the Commissioner for assistance in carrying out this record gathering.

         2. Review by the Appeals Council

         On January 15, 2015, Plaintiff requested review by the Appeals Council and an extension of time to submit “additional evidence.” (R. at 19, 234.) Based on the facsimile time-stamp, it appears that Plaintiff's counsel received the documents at issue on January 29, 2015. Exhibit 15F ...


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