MICHAEL H. SIMON, District Judge.
Mr. Gregory Zagel seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his application for disability insurance benefits ("DIB"). For the following reasons, the Commissioner's decision is reversed and remanded for further proceedings.
The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "Substantial evidence" means "more than a mere scintilla but less than a preponderance." Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.
On December 14, 2010,
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Id.; see also 20 C.F.R. §§ 404.1566, 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.
At step one, the ALJ determined Mr. Zagel last met the insured status requirements of the Act on June 30, 1995 and found Mr. Zagel had not engaged in substantial gainful activity during the period from his alleged onset date of July 27, 1991, through his date last insured. AR 14-15.
At step two, the ALJ found Mr. Zagel had the following medically determinable impairments: back pain, knee pain, and leg pain resulting from post-accident fractures. AR 15. The ALJ found however, that through the date last insured, Mr. Zagel did not have an impairment or combination of impairments that significantly limited his ability to perform basic work-related activities for 12 consecutive months; therefore, Mr. Zagel did not have a severe impairment or combination of impairments. AR 15. Based on these findings, the ALJ concluded that Mr. Zagel was not disabled at any time from July 27, 1991, through June 30, 1995. AR 17.
The ALJ also found that, despite some evidence that Mr. Zagel had initiated the process to file a claim for DIB in 1993, thereby potentially preserving a protective filing date, there was no evidence of a filed application for benefits. AR 12-13.
The Commissioner identifies two potential issues Mr. Zagel appears to address in his pro se opening brief: (1) whether substantial evidence supports the ALJ's finding that Mr. Zagel did not prove he had a severe, medically determinable impairment or combination of impairments for a continuous twelve-month period prior to his date last insured; and (2) whether substantial evidence supports the ALJ's finding that Mr. Zagel did not complete an application for DIB in 1993. The Court also considers whether the Commissioner improperly failed to comply with Social Security Ruling ("SSR") 83-20, available at 1983 WL 31249.
At step two, the claimant bears the burden of showing the existence of a severe impairment or combination of impairments—medically determinable conditions that have more than a minimal effect on the claimant's ability to perform work-related activities. 20 C.F.R. § 404.1520(a)(4)(ii); Tackett, 180 F.3d at 1098; Hoopai v. Astrue, 499 F.3d 1071, 1075-76 (9th Cir. 2007). "A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings," and cannot be established on the basis of a claimant's symptoms alone. 20 C.F.R. § 404.1508.
The Social Security regulations and rulings, as well as case law applying them, discuss the step-two severity determination in terms of what is "not severe." According to the regulations, "an impairment . . . is not severe if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). Basic work activities are "abilities and aptitudes necessary to do most jobs," including, for example "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling." 20 C.F.R. § 404.1521(b). An impairment or combination of impairments can be found "not severe" only if the evidence establishes a slight abnormality that has "no more than a minimal effect on an individual's ability to work." Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (emphasis in original) (quoting SSR 85-28). The step-two inquiry is a de minimus screening device to dispose of groundless claims. Yuckert, 482 U.S. at 153-54.
As noted, at step two the ALJ found Mr. Zagel had the following medically determinable impairments: back pain, knee pain, and leg pain resulting from post-accident fractures. AR 15. The ALJ concluded, however, that the combination of impairments did not significantly limit Mr. Zagel's ability to perform basic work-related activities for 12 consecutive months and, therefore, he did not have a severe combination of impairments. AR 15.
As the ALJ also noted and as the record indicates, Mr. Zagel was involved in a major car accident in July 1991.
The ALJ based his step two findings on "minimal treatment records." AR 16. The ALJ referenced a September 1991 x-ray that revealed mild lumbar degeneration. AR 16. The ALJ noted that in October 1991, treating physician Thomas Franklin, M.D., wrote that Mr. Zagel would be disabled until February 1992 due to his July 1991 car accident. The accident caused fractures of the skull, the left femur, and the left patella. AR 16; AR 334. The ALJ afforded Dr. Franklin's analysis little weight, however, due to the lack of supportive treatment notes. AR 16.
The ALJ also stated that there are no follow-up records from Dr. Franklin. AR 16. To the contrary, Dr. Franklin wrote additional notes stating that Mr. Zagel would be unable to work for additional periods of time. In November 1992, Dr. Franklin opined that Mr. Zagel would be unable to work until February 1, 1993, and in February 1993, Dr. Franklin opined that Mr. Zagel would be unable to work "for the next 90 days." AR 338, 339.
The ALJ also cited a 1993 letter from examining physician Peter Coetzee, M.D. AR 16. At the hearing, Mr. Zagel testified that he traveled to South Africa in September 1992 to be examined by Dr. Coetzee, who was a "personal friend." AR 28, 234. In February 1993, Dr. Coetzee sent a letter to Mr. Zagel's attorney in which he opined that Mr. Zagel would be disabled on a permanent basis and would require a minimum of "several years . . . to even contemplate a return to the workforce." AR 234. As the ALJ noted, Dr. Coetzee expressed concern that Mr. Zagel's left iliotibial band was calcifying. AR 16. Although the ALJ did not specifically address it, Dr. Coetzee also raised concern about the possibility that one of Mr. Zagel's legs would be significantly shorter than the other, that there was significant damage to a lumbar disc, and that a knee or hip replacement might be necessary within the next three to five years. AR 234. The ALJ gave Dr. Coetzee's opinion little weight because of the lack of supporting objective findings, laboratory reports, or other treatment records describing the nature or duration of Mr. Zagel's condition. AR 16.
The ALJ noted that physical therapy records from December 1992 and February 1993 indicate Mr. Zagel had difficulty achieving tasks because his left leg went numb. AR 16, 330-33. Finally, the ALJ gave significant weight to the opinion of non-examining physician Mary Ann Westfall, M.D., who on March 28, 2011, determined there was insufficient evidence to find Mr. Zagel had severe impairments before the date last insured because Dr. Coetzee did not support his opinion with specific physical findings or limitations that would cause disability. AR 17; 51.
The ALJ did not address a 29-page document submitted by Mr. Zagel containing daily summaries of the physical difficulties he experienced from his injuries from August 12, 1991, through March 2, 1993. AR 160-89. Nor did the ALJ address a December 18, 1992, letter from Mr. Zagel to Dr. Bruce Adornato detailing nerve difficulties Mr. Zagel had experienced the previous three months. AR 190-91. While Mr. Zagel's letter references a future appointment with Dr. Adornato to confer on the issues raised, notably no medical records from Dr. Adornato appear in the record. AR 190. In fact, with the exception of the letters discussed above, there are no medical records whatsoever chronicling Mr. Zagel's treatment from the date of the accident through the date last insured.
The ALJ has a special duty to fully and fairly develop the record and ensure the claimant's interests are considered, regardless of whether the claimant is represented by counsel. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The ALJ's duty to develop the record is triggered when the evidence provided is ambiguous, or when the ALJ finds the record is inadequate for properly evaluating the evidence. Id. This duty may require the ALJ to obtain additional information, for example, by contacting treating physicians, scheduling consultative examinations, or calling a medical expert. 20 C.F.R. §§ 404.1512(d)-(e), 404.1519a. A claimant does not have "an affirmative right to have a consultative examination performed by a chosen specialist." Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001). The Commissioner may, however, order an examination "to try to resolve an inconsistency in the evidence, or when the evidence as a whole is insufficient to allow us to make a determination or decision on [the] claim." 20 C.F.R. § 404.1519a(b); see also 20 C.F.R. §§ 404.1517, 404.1527(c)(3). The court may reverse and remand the Commissioner's final decision where the court concludes that the ALJ should have ordered a consultative examination. See Reed, 270 F3d at 843-45.
The record of Mr. Zagel's medical symptoms, diagnoses, treatment, and physical limitations from the alleged onset date of July 27, 1991, through his last insured date of June 20, 1995, was sufficiently ambiguous to trigger the ALJ's duty to develop it further by either contacting the treating and examining sources, scheduling a consultative examination, or consulting a medical expert. If those sources support a finding that Mr. Zagel suffered an impairment or combination of impairments that limited Mr. Zagel's ability to perform basic work activities, then the ALJ must proceed past step two and complete the evaluation to determine whether Mr. Zagel was disabled during the time period in question.
SSR 83-20.
The Ninth Circuit has "explained this ruling to mean that `[i]n the event that the medical evidence is not definite concerning the onset date and medical inferences need to be made, SSR 83-20 requires the [ALJ] to call upon the services of a medical advisor and to obtain all evidence which is available to make the determination.'" Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (alterations in original) (quoting DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir. 1991)). To trigger the procedures required in SSR 83-20, either the ALJ must make an explicit finding of disability or the record must contain substantial evidence showing that the claimant was disabled at some point after the date last insured, thus raising a question of onset date. Id. at 810-811. Here, the record shows that Mr. Zagel has been found to be disabled and is receiving SSI benefits. Additionally, he was found to be disabled for at least some period in the early 1990s after his alleged onset date, and received disability payments from the State of California. Thus, the ALJ erred by failing to comply with the requirements of SSR 83-20.
Mr. Zagel also disputes the ALJ's finding that Mr. Zagel did not complete an application for DIB in 1993. At the hearing on August 2, 2012, Mr. Zagel testified that he believed he had filed an application for Social Security DIB in 1993. AR 27. The Social Security Agency, however, has no record of Mr. Zagel filing an application for disability benefits in 1993. AR 12, 32, 37, 48.
"In order to receive disability benefits, a person must apply for a period of disability." Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1459-60 (9th Cir. 1995) (citing 42 U.S.C. § 416(i)(2)(B); 20 C.F.R. § 404.603). The Social Security Administration ("SSA") will consider an application a claim for benefits upon the condition, inter alia, that it must be filed "on a prescribed form, as stated in [20 C.F.R.] § 404.611." 20 C.F.R. § 404.610(a). Under § 404.611(a), a claimant "must apply for benefits on an application that we prescribe." 20 C.F.R. § 404.611(a).
Mr. Zagel, or someone on Mr. Zagel's behalf, completed a Disability Report in 1993. AR 202-07. Mr. Zagel also apparently made an appointment at an agency field office to complete an application. AR 201. An appointment confirmation dated February 24, 1993, from the SSA references "Date of Claim: February 3, 1993." AR 226. The reference to "date of claim" appears, however, to reflect the date Mr. Zagel contacted the SSA to set up an appointment to complete his application. AR 201 (telephone appointment confirmation form dated February 3, 1993, stating "[t]hank you for contacting us for a teleclaim appointment with our office. This is confirmation of the date and time of your teleclaim appointment"). A 2010 letter from the SSA to Mr. Zagel also references a "1993 claim," but there is no indication that the agency employee who drafted the letter actually confirmed that an application was filed in 1993. AR 222.
Mr. Zagel also signed a release form in 1993 authorizing his accountant to access his Social Security records. AR 225. Mr. Zagel submitted additional evidence to this Court in the form of a 1992 letter from his former employer stating they had sent employment data to the agency and a 1993 release form authorizing his attorney to access his Social Security records. Dkt. 27-2 at 5, 17.
Although Mr. Zagel established that he had the intent to file a claim in 1993, and took some steps in that direction, the evidence does not establish that he actually filed a signed application with the SSA. In the absence of proof of an acceptable application filed with the SSA pursuant to agency rules, the ALJ did not err in finding that Plaintiff failed to establish a 1993 DIB claim for benefits. See Patterson v. Astrue, 2012 WL 1252653, *6 (W.D. Wash. Apr. 12, 2012) (finding that the claimant failed to establish that an application for DIB was filed with the SSA as prescribed by rule even though the claimant had expressed her intent to establish eligibility for such benefits and the ALJ postponed the hearing so that a medical expert could attend to address her DIB claim because there was a substantial period of time between the alleged onset date and the application for disability).
Mr. Zagel's failure to show that he completed an application in 1993, prior to the last insured date of June 30, 1995, does not preclude him from pursuing the current application to adjudicate his alleged disability at that remote time. If Mr. Zagel is successful in his current application, DIB "may be paid for as many as 12 months before the month" his 2010 DIB application was filed. SSR 83-20.
The Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this Opinion and Order.
