United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
W. DALE MAGISTRATE JUDGE.
pending before the Court for its consideration is Darren
Frederick Randall's Petition for Review of the
Respondent's denial of social security benefits, filed
December 20, 2017. (Dkt. 1.) The Court has reviewed the
Petition for Review and the Answer, the parties'
memoranda, and the administrative record, and for the reasons
that follow, will remand this matter to the Commissioner to
obtain a consultative psychological exam consistent with this
AND FACTUAL HISTORY
filed an application for Title II Disability Insurance
Benefits on July 12, 2014, claiming disability due to the
effects of fractured discs in his back, bilateral hand
impairments, a heart murmur, injury to his left foot, and
dyslexia. This application was denied initially and on
reconsideration, and a hearing was held on October 3, 2016,
before Administrative Law Judge (ALJ) Stewart Stallings.
After hearing testimony from Petitioner and vocational expert
Polly A. Peterson, ALJ Stallings issued a decision finding
Petitioner disabled on February 23, 2017. However, on April
13, 2017, the Appeals Council sent notice of their review of
the ALJ's decision pursuant to 20 C.F.R. 404.969. The
Appeals Council found the ALJ's decision contained an
error of law and the actions, findings or conclusions made
therein were not supported by substantial evidence.
Petitioner timely submitted additional statements and
evidence for the Appeals Council, which considered the
information but found the statements and evidence did not
provide a basis for changing its decision.
appealed this final decision to the Court. The Court has
jurisdiction to review the Appeals Council's decision
pursuant to 42 U.S.C. § 405(g).
time the Appeals Council's notice of review, Petitioner
was 45 years of age. Petitioner did not graduate from high
school but later obtained his GED; he also completed a
classroom driving and training course to obtain his Class A
license in 2004. Petitioner's prior employment experience
includes driving a waste management truck.
Commissioner follows a five-step sequential evaluation for
determining whether a claimant is disabled. See 20
C.F.R. §§ 404.1520, 416.920. At step one, it must
be determined whether the claimant is engaged in substantial
gainful activity. The ALJ found Petitioner had not engaged in
substantial gainful activity since his alleged onset date of
August 20, 2010. At step two, it must be determined whether
the claimant suffers from a severe impairment. The ALJ found
Petitioner's degenerative disc disease, left wrist
arthroscopy, right hand torn tendons and ligaments, anxiety,
and personality disorder severe within the meaning of the
three asks whether a claimant's impairments meet or equal
a listed impairment. The ALJ found that Petitioner's
impairments did not meet or equal the criteria for the listed
impairments, specifically considering 20 C.F.R. Section
404.1520(d), Section 404.1525, and Section 404.1526. If a
claimant's impairments do not meet or equal a listing,
the ALJ must assess the claimant's residual functional
capacity (RFC) and determine, at step four, whether the
claimant has demonstrated an inability to perform past
found that, from August 20, 2010 through July 25, 2015, the
date Petitioner became disabled, that Petitioner had the RFC
to perform sedentary work as defined in 20 C.F.R. Section
404.1567(a), with restrictions, including no more than brief
superficial interaction with the public and coworkers, no
teamwork, and only occasional contact with supervisors. The
ALJ next found Petitioner was not disabled for the period on
or before July 25, 2015, by applying the framework of Medical
Vocational Rule 201.28. However, for the period beginning
July 25, 2015, the ALJ found the claimant could perform
sedentary work as defined in 20 C.F.R. Section 404.1567(a),
with restrictions, which included one to two unscheduled
absences from work every month. Based on this assessment, the
ALJ found Petitioner disabled beginning July 25, 2015.
stated above, on April 13, 2017, the Appeals Council sent
notice of its review of the ALJ's decision pursuant to 20
C.F.R. 404.969. The Appeals Council found the ALJ's
decision contained an error of law, and the actions, findings
or conclusions made by the ALJ were not supported by
substantial evidence. In its decision, the Appeals Council
found Petitioner had to establish disability on or before
December 31, 2015-as that was the date of last insured. (AR
5.) The Appeals Council found the ALJ erred at step two by
finding Petitioner had severe medically determinable mental
impairments, because the ALJ made the finding without the
support of objective medical evidence from an acceptable
medical source. (AR 5, citing 20 C.F.R. §
404.152, § 404.1529, and Social Security Rulings 96-3p
its own review of the record, including multiple additional
supplemental statements submitted by Petitioner supporting
his claims of mental impairment, the Appeals Council found
Petitioner had not established a medically determinable
mental impairment that could reasonably result in the mental
symptoms alleged, and that his allegations of disabling
symptoms from mental impairments were not supported by or
consistent with the evidence of record. (AR 10.)
Appeals Council ultimately found Petitioner was not under a
disability at any time during the period between August 20,
2010 and December 31, 2015-the date he was last insured for a
period of disability and disability insurance
review, the Court is instructed to uphold the decision of the
Commissioner if the decision is supported by substantial
evidence and is not the product of legal error. 42 U.S.C.
§ 405(g); Universal Camera Corp. v. Nat'l Labor
Relations Bd., 340 U.S. 474 (1951); Meanel v.
Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended);
DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir.
1991). 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). It is more than a scintilla but less than a
preponderance, Jamerson v Chater, 112 F.3d 1064,
1066 (9th Cir. 1997), and “does not mean a large or
considerable amount of evidence.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).
Court cannot disturb the Commissioner's findings if they
are supported by substantial evidence, even though other
evidence may exist that supports the Petitioner's claims.
42 U.S.C. § 405(g); Flaten v. Sec'y of Health
& Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).
Thus, findings of the Commissioner as to any fact, if
supported by substantial evidence, will be conclusive.
Flaten, 44 F.3d at 1457. It is well-settled that, if
there is substantial evidence to support the decision of the
Commissioner, the decision must be upheld even when the
evidence can reasonably support either affirming or reversing
the Commissioner's decision, because the Court “may
not substitute [its] judgment for that of the
Commissioner.” Verduzco v. Apfel, 188 F.3d
1087, 1089 (9th Cir. 1999).
a Court may not reverse a decision of the Commissioner for
errors that are harmless. Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005). An error is harmless when it
is inconsequential to the ultimate determination of whether a
claimant is disabled. Stout v. Comm'r of SSA,
454 F.3d 1050, 1055 (9th Cir. 2006).
sixty days of the date of an ALJ's decision, “the
Appeals Council may decide on its own motion to review the
action that was taken.” 20 C.F.R. § 404.969.
“The Appeals Council has authority to review the merits
of the ALJ's determination of disability and is
“not required to adopt the particular findings of the
ALJ even if those findings were supported by substantial
evidence.” Taylor v. Heckler, 765 F.2d 872,
875 (9th Cir. 1985). A decision is not final until the
Appeals Council either denies review or assumes jurisdiction
and issues its own decision. 20 C.F.R. § 404.955. Where
the Appeals Council vacates the ALJ's decision and issues
its own decision, the Appeals Council's decision becomes
the Commissioner's final decision. 20 C.F.R. §§
404.969, 404.979. On appeal, the task of the district court
is to “review the decision of the Appeals ...