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Dano v. Saul

United States District Court, D. Hawaii

November 19, 2019

DANA ANN DANO, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, [1] Defendant.

          ORDER REVERSING DECISION OF COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.

         On November 13, 2018, Plaintiff Dana Ann Dano filed a Complaint for review of the Commissioner of Social Security's denial of her applications for disability insurance benefits and supplemental security income. In her Opening Brief, Dano asks this Court to review (1) whether evidence submitted to the Appeals Council was improperly dismissed, (2) whether the Administrative Law Judge (ALJ) improperly rejected Dr. Judith Timbers' opinions, and (3) whether the ALJ improperly rejected Dano's testimony. After carefully reviewing the record and the arguments of counsel, the Court concludes that this case must be remanded for further administrative proceedings as set forth below. Specifically, it is abundantly clear from the ALJ's decision that the ALJ wished to review the treatment records of Dr. Timbers that were provided to the Appeals Council. Clear, at least, to everyone but the Appeals Council. In addition, irrespective of the evidence submitted to the Appeals Council, even taken on its own terms, the ALJ's residual functional capacity (RFC) determination is, at least in part, inconsistent and unsupported by substantial evidence, requiring remand for clarification of the same.

         BACKGROUND

         I. Review of Disability Claims

         A five-step process exists for evaluating whether a person is disabled under the Social Security Act (SSA). 20 C.F.R. § 404.1520; 20 C.F.R § 416.920. First, the claimant must demonstrate that she is not currently involved in any substantial, gainful activity. Id. §§ 404.1520(a)(4)(i), (b); §§ 416.920(a)(4)(i), (b). Second, the claimant must show a medically severe impairment or combination of impairments that significantly limit her physical or mental ability to do basic work activities. Id. §§ 404.1520(a)(4)(ii), (c); §§ 416.920(a)(4)(ii), (c) Third, if the impairment matches or is equivalent to an established listing under the governing regulations, the claimant is judged conclusively disabled. Id. §§ 404.1520(a)(4)(iii), (d); §§ 416.920(a)(4)(iii), (d).

         If the claimant's impairment does not match or is not equivalent to an established listing, the Commissioner makes a finding about the claimant's residual functional capacity to perform work. Id. § 404.1520(e); § 416.920(e). The evaluation then proceeds to a fourth step, which requires the claimant to show her impairment, in light of the RFC, prevents her from performing work she performed in the past. Id. §§ 404.1520(a)(4)(iv), (e), (f); §§ 416.920(a)(4)(iv), (e), (f). If the claimant is able to perform her previous work, she is not disabled. Id. § 404.1520(f); § 416.920(f). If the claimant cannot perform her past work, though, the evaluation proceeds to a fifth step. Id. §§ 404.1520(a)(4)(v), (g); §§ 416.920(a)(4)(v), (g). At this final step, the Commissioner must demonstrate that (1) based upon the claimant's RFC, age, education, and work experience, the claimant can perform other work, and (2) such work is available in significant numbers in the national economy. Id. § 404.1560(c); § 416.960(c); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (explaining that, at Step Five, the burden moves to the Commissioner). If the Commissioner fails to meet this burden, the claimant is deemed disabled. 20 C.F.R. § 404.1520(g)(1); § 416.920(g)(1).

         II. The ALJ's Decision

         On December 6, 2017, the ALJ issued a decision finding Dano “not disabled” under the SSA. Administrative Record (“AR”) at 114. At Step One of the evaluation process, the ALJ determined that Dano had not engaged in substantial gainful activity since the alleged onset date of December 1, 2012. Id. at 105. At Step Two, the ALJ determined that Dano had severe impairments of bipolar disorder and anxiety disorder. Id. at 105-107. At Step Three, the ALJ determined that Dano did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in the governing regulations. Id. at 107-108.

         Before reaching Step Four, the ALJ determined that Dano had the residual functional capacity to perform a full range of work at all exertional levels, but with the following non-exertional, mental function limitations:

she must avoid concentrated exposure to hazardous machinery and unprotected heights; she is limited to simple routine repetitive tasks; she can perform only low-stress work, defined as permitting no more than occasional changes in work setting; she cannot perform production rate pace work (i.e., she cannot perform traditional assembly line work in which another employee's performance depends on her immediate prior performance) but rather goal oriented work; she can occasionally interact with the public[;] and[, ] she can frequently interact with co-workers and supervisors….

Id. at 108-112.

         At Step Four, the ALJ determined that Dano was unable to perform any past relevant work. Id. at 112. At Step Five, the ALJ determined that jobs existed in significant numbers in the national economy that Dano could perform. Id. at 113-114. More specifically, a vocational expert stated that, in light of Dano's RFC, age, education, and work experience, she would be able to perform the jobs of housekeeping cleaner, routine clerk, and photocopy machine operator. Id. at 113. This final determination resulted in the ALJ finding that Dano was not disabled under the SSA at any time from December 1, 2012 through December 6, 2017, the date of the ALJ's decision. Id. at 114.

         III. The Appeals Council's Decision

         Subsequently, Dano sought review from the Appeals Council. Id. at 340. Having obviously read the ALJ's comments lamenting the absence in the record of contemporaneous progress notes from Dano's longtime health care provider, Dano submitted for the Appeals Council's review approximately eighty pages of such notes from Dr. Judith Timbers dated July 26, 2012 through November 29, 2017. Id. at 2, 18-93, 486-490. Dano also submitted a letter from Dr. Timbers, dated December 11, 2017, explaining why the progress notes had not been previously provided, and both a letter and a treatment record from Dr. Rodney Yamaki, each dated January 23, 2018. Id. at 16, 95-96, 98.

         On September 12, 2018, the Appeals Council denied Dano's request for review of the ALJ's decision. Id. at 1. With respect to the progress notes from Dr. Timbers, the Appeals Council stated that it “did not consider and exhibit this evidence.” Id. at 2. At the same time, having decided that this evidence did not warrant its consideration, the Appeals Council somehow determined that “this evidence does not show a reasonable probability that it would change the outcome of the decision.” Id. As for the other evidence ...


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