# Vickie Matthews v. Nancy A. Berryhill

> District Court, C.D. California · April 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10037543

## Case

- **Court:** District Court, C.D. California
- **Decided:** April 6, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10

11 VICKIE M.,1 Case No. 2:19-cv-01740-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND
ORDER
14 ANDREW M. SAUL, Commissioner
of Social Security,2
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Defendant.
16

17 I. PROCEDURAL HISTORY
18 Plaintiff Vicki M. (“Plaintiff”) filed a complaint seeking review of the
19 decision of the Commissioner of Social Security denying her applications for
20 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
21 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the
22 undersigned United States Magistrate Judge and filed briefs addressing the disputed
23 issues in this case. [Dkt. 21 (“Pl. Br.”), Dkt. 28 (“Def. Br.”).] The Court has taken
24 the parties’ briefing under submission without oral argument. For the reasons set
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26 1 In the interest of privacy, this Order uses only the first name and the initial of
the last name of the non-governmental party in this case.
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2 Andrew M. Saul, now Commissioner of the Social Security Administration, is
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substituted as defendant for Nancy A. Berryhill. See Fed. R. Civ. P. 25(d).
1 forth below, the Court affirms the decision of the ALJ and orders that judgment be
2 entered accordingly.
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4 II. ADMINISTRATIVE DECISION UNDER REVIEW
5 On April 23, 2015, Plaintiff filed applications for DIB and SSI, alleging
6 disability beginning on October 10, 2011. [AR 137-39.] The claims were initially
7 denied on October 30, 2015. [AR 77-82.] An ALJ conducted a hearing on
8 September 13, 2017, and, on January 26, 2018, published an unfavorable decision.
9 [AR 29-54, 15-28.] The Appeals Counsel denied review on January 9, 2019. [AR
10 2-9.] This action followed.
11 The parties are well acquainted with the ALJ’s decision, the majority of
12 which need not be detailed here given the narrow issue presented to the Court.
13 Plaintiff’s sole contention on appeal to this Court is that the ALJ improperly
14 excluded significant evidence for violation of the five-day rule, and that the case
15 should be remanded for consideration of this “supplemental” evidence. The relevant
16 timeline of events, a short description of the evidence and ALJ’s decision follow:
17 Plaintiff retained the counsel who represented her below, the Law Offices of
18 William Latour3, in 2015. [AR 19, 83-84.] Counsel below filed her claims for DIB
19 and SSI soon thereafter. On June 16, 2017 (nearly two years after the claims were
20 filed) the Commissioner set a hearing, scheduled for September 13, 2017. Only
21 after the hearing was scheduled did counsel in the administrative proceedings make
22 his first informal request for the bulk of Plaintiff’s medical records, some of which
23 dated back to 2000. According to counsel, he made made several informal requests
24 to no avail. [AR 180.]
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26 3 Mr. Latour and Mr. Friedman (who represented Plaintiff at the administrative
hearing) will be referred to as “counsel below” or “counsel in the administrative
27 proceedings.” The Court notes that counsel appearing in this District Court
proceeding is not with the Latour firm, and has timely filed all required documents
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in this case.
1 Nearly two months later – and only weeks before the scheduled hearing –
2 counsel below requested that the ALJ issue a subpoena for medical records. Two
3 days before the scheduled hearing, counsel received what is essentially Plaintiff’s
4 entire set of medical records – approximately 3000 pages – from separate counsel
5 working on Plaintiff’s worker’s compensation claim.4
6 There is no evidence that counsel below ever requested a continuance of the
7 hearing, nor did counsel argue at the hearing that any further proceedings were
8 necessary before adjudication of Plaintiff’s claim. [See generally AR 29-54.]
9 Prior counsel gave the ALJ notice of the receipt of the records at the hearing.
10 The ALJ responded as follows:
11 I’m sorry, that’s too late. I can’t admit those. We have almost
three months of prior notice were given and there’s no reason. The
12 request for subpoena was fairly tardy. It was too late to issue a
subpoena in any event. But, your firm often does that. And, it wasn’t
13 appropriate. Let me just see how many pages here. SO, in
contravention of the Regulations, I can’t admit them at this late date.
14 We have the Regulations for a reason and I haven’t looked at the
records, nor has the doctor had a chance to look at the records. So,
15 that’s a real problem.
It may help fill the gap, but the problem with the medical record
16 at present is that we got records that end in September of 2015. And
then, we’ve got this orthopedic evaluation this year. And, that’s about
17 what we have to rely on. So, they are somewhat scattered. I don’t
know what else to say. I wasn’t notified they had been received. They
18 came in two days ago.
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[AR 32.] Counsel below agreed: “Yes.” And the ALJ concluded, “I can’t admit
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those.” [Id.]
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The ALJ, in her opinion addressed the late evidence as follows:
22 The claimant submitted or informed the Administrative Law
Judge about additional written evidence less than five business days
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24 4 Plaintiff’s present counsel has provided a detailed analysis of these voluminous
medical records to demonstrate their materiality to any determination of whether
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Plaintiff is disabled or not. [Pl. Br. at 4-9.] The Commissioner does not respond to
26 this analysis or attempt to characterize the medical evidence. Nor should he, given
that neither the ALJ nor the Appeals Counsel has reviewed them. But for purposes
27 of this opinion, the Court assumes that the records are relevant and material – likely
a good assumption given their volume, the time period they cover, and that several
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physician’s treatment notes and opinions are contained therein.
1 L20a wC FJuRd 4g0e 4d.e9c3l5in(be)s aton da d4m16it. 1th4i3s5 e(vbi)d aernec neo bt emcaeut.s e C tohue nrseeqlu sioreumghetn ttos of
2 admit in excess of 3,000 pages of medical records related to the
claimant’s still pending workers’ compensation claim. However, he
3 did not inform the ALJ at least five days before this hearing that he had
additional records to submit. By letter on August 23, 2017, counsel
4 had requested that the ALJ issue a subpoena duces tecum to secure
these records. Counsel was or should have been aware that this did not
5 allow sufficient time to obtain the records, let alone for their review by
herself or the medical expert of whom counsel had notice. Further,
6 counsel’s firm has represented the claimant since November 2015. It
acknowledges that it did not first request records (which date back to
7 2000) until June 26, 2017, which was after the Notice of Hearing was
issued. In sum, counsel had sufficient time to obtain the records and
8 knew or should have known that its request for subpoena would not be
[sic] result in a timely receipt of the requested records.
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[AR 18-19.]
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Finally, Plaintiff’s prior counsel did not try to submit the evidence to the
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Appeals Counsel, and there is no explanation or argument related to this failure in
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Plaintiff’s papers.
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III. GOVERNING STANDARD
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Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to
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determine if: (1) the Commissioner’s findings are supported by substantial
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evidence; and (2) the Commissioner used correct legal standards. See Carmickle v.
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Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r
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Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted).
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“Substantial evidence is more than a mere scintilla but less than a preponderance; it
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is such relevant evidence as a reasonable mind might accept as adequate to support a
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conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir.
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2014) (internal citations omitted).
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The Court will uphold the Commissioner’s decision when the evidence is
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susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d
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1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated
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by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he
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1 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not
2 reverse the Commissioner’s decision if it is based on harmless error, which exists if
3 the error is “inconsequential to the ultimate nondisability determination, or if despite
4 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v.
5 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations
6 omitted).
7 A C.F.R. that was adopted and went into effect before the hearing notice in
8 this case issued is relevant to the specific issue raised here. On December 16, 2016,
9 the Social Security Administration adopted 20 C.F.R. § 416.1435(b), which went
10 into effect on January 17, 2017. The Commissioner required compliance starting on
11 May 1, 2017. 20 C.F.R. § 416.1435(b). The Social Security Administration
12 publishes a guideline for ALJs in conducting hearings, known as the Hearings,
13 Appeals, and Litigation Law Manual (“HALLEX”). This guideline instructs that
14 “[s]ubject to 20 C.F.R. § 404.935(b) and § 416.1435(b), an ALJ may admit
15 additional evidence into the record” even “after the hearing” in appropriate
16 circumstances. HALLEX I-2-6-59, ADMITTING EVIDENCE SUBMITTED
17 LESS THAN FIVE BUSINESS DAYS BEFORE THE HEARING OR AT OR
18 AFTER THE HEARING, 2017 WL 1632957, at *1 (May 1, 2017). It further directs
19 that an ALJ will follow certain instructions to consider whether to admit untimely
20 evidence. Id. These instructions include determining whether the circumstances of
21 §§ 404.935(b) or 416.1435(b) apply, and that the ALJ will find those circumstances
22 apply when, among other things, “[t]he claimant, or appointed representative,
23 actively and diligently sought evidence from a source and the evidence was not
24 received or was received less than five business days prior to the hearing.” Id.
25 The relevant portion of the regulation cited in the HALLEX provides:
26 (a) Each party must make every effort to ensure that the administrative law
27 judge receives all of the evidence and must inform us about or submit any written
28 evidence ... no later than five business days before the date of the scheduled hearing.
1 If you do not comply with this requirement, the administrative law judge may
2 decline to consider or obtain the evidence, unless the circumstances described in
3 paragraph (b) of this section apply.
4 (b) If you have evidence … but you have missed the deadline described in
5 paragraph (a) of this section, the administrative law judge will accept the evidence if
6 he or she has not yet issued a decision and you did not inform us about or submit the
7 evidence before the deadline because:
8 * * *
9 (3) Some other unusual, unexpected, or unavoidable circumstance beyond
10 your control prevented you from informing us about or submitting the evidence
11 earlier. Examples include, but are not limited to:
12 * * *
13 (iv) You actively and diligently sought evidence from a source and the
14 evidence was not received or was received less than 5 business days prior to the
15 hearing.
16 20 C.F.R. § 404.935.
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18 IV. DISCUSSION
19 Appealing the Commissioner’s decision to deny her application for benefits,
20 Plaintiff argues the ALJ erred in excluding the 3000 plus pages of worker’s
21 compensation medical records described above. Plaintiff presents two arguments
22 for remand, discussed below.
23 First, Plaintiff contends that the ALJ had sufficient notice of the evidence
24 because she “knew that counsel was struggling to get the record 20 days before the
25 September 13, 2017, hearing” because counsel requested the issuance of a subpoena.
26 [Pl. Br. at 10.] The cover letter to the ALJ requesting the subpoena stated that the
27 records were “expected” to contain a generic laundry list of information. [AR 180-
28 81.] There was no indication of what specifically or how much information would
1 be obtained. Plaintiff apparently argues that the subpoena request constituted the
2 required notice (taking the issue outside the five day rule) or, alternatively,
3 demonstrated diligence in seeking the records that were eventually obtained.
4 The Ninth Circuit has not addressed application of the five day rule, but there
5 are a few recent cases from within the Circuit dealing with the propriety of
6 exclusion of late-presented evidence. One such case is Christi L. v. Comm’r of
7 Social Sec., 2020 WL 733845, Case No. 3:19-cv-00185-MK (D. Or. Feb. 13, 2020).
8 In Christi L., the plaintiff challenged the ALJ’s exclusion of two questionnaires
9 from evidence based on the five-day rule. Id. at *2. Plaintiff’s counsel had sent the
10 questionnaires to mental health professionals who had counseled the plaintiff.
11 Plaintiff’s counsel informed the ALJ about the two questionnaires ten days before
12 the hearing, but they were signed and submitted less than five days before the
13 hearing. The ALJ declined to admit them, reasoning that “the evidence does not
14 exist until it is signed.” Id. at *3. The ALJ further found that the requirements of
15 the rule, in the Christi L. case, chiefly that the evidence should be admitted if
16 counsel was diligent in obtaining the evidence were not met. Id. The District Court
17 remanded the case for further administrative proceedings, finding first that (1) there
18 was no “signature requirement” for the questionnaires to qualify as “evidence,” and
19 therefore (2) counsel had complied with the five day rule by informing the ALJ
20 about the evidence – two specifically identified (and not voluminous) questionnaires
21 – more than five days before the hearing. The District Court held that it did not
22 need to reach the question of diligence because the rule had not been violated. Id. at
23 3.
24 The situation at bar differs significantly from that in Christi L. Counsel in
25 Christi L. gave specific notice of identified, material documents more than five days
26 before the hearing. Here, Plaintiff relies on a subpoena request for an unidentified
27 and unknown quantity of records covering years of treatment as constituting notice
28 of anticipated late evidence. While this may constitute notice that counsel was still
1 seeking something – i.e., was in the process of gathering information – the Court
2 finds that it does not qualify as the notice required by the C.F.R. To decide
3 otherwise would eviscerate the rule, as any subpoena request or letter stating the
4 counsel was still seeking documents would qualify, allowing a plaintiff to submit
5 any amount of any type of evidence whenever it was finally obtained.
6 The court in Becky B. v. Saul, 2020 WL 1244865, Case No. 6:19-cv-330-SI
7 (D. Or., Mar. 16, 2020), addressed the diligence aspect of Plaintiff’s argument. In
8 Becky B., plaintiff’s counsel sought an opinion from one of plaintiff’s treating
9 physicians. Counsel provided the form to the doctor four months in advance of the
10 hearing, and then continued to follow up with the doctor. Despite his efforts, the
11 opinion was obtained in violation of the five-day period. The reviewing district
12 court held that counsel had not been dilatory in his months-long attempts to get the
13 doctor to offer an opinion. The fact that it was a single opinion that counsel tried
14 repeatedly to obtain demonstrated the required diligence: “Plaintiff’s counsel
15 submitted Dr. Telew’s report to the ALJ immediately upon receipt, only one day
16 after the administrative hearing, and four months before the before the ALJ issued
17 his decision. . . . Plaintiff’s counsel diligently sought Dr. Telew’s report, satisfying
18 the good cause exception to the five day rule.” Id. at *6. Moreover, in that case, the
19 ALJ had made the opinion part of the record, but refused to consider it even while
20 relying on the doctor’s underlying notes to support a finding of non-disability.
21 Counsel clearly had already obtained the doctor’s underlying notes and records, on
22 which the ALJ relied.
23 Here, unlike in Becky B., counsel below appears to have ignored his client’s
24 case almost completely for nearly two years, only seeking a large mass of
25 documents after the hearing before the ALJ was scheduled. Counsel below was
26 seeking, for the most part, old records (the type which were before the ALJ in Becky
27 B.) – not a new opinion – that could easily have been obtained if he requested them
28 and/or sought a subpoena earlier. The fact that counsel below waited until just a few
1 weeks before the hearing to request a subpoena is fatal to Plaintiff’s diligence
2 argument.
3 Plaintiff’s second argument is that the 3000 pages of records constitutes “new
4 and material evidence” that should be considered. [Pl.’s Br. at 11.] As stated above,
5 there is nothing “new” about the evidence counsel below tried to dump on the ALJ
6 at the hearing. And, importantly, Plaintiff did not attempt to present this evidence to
7 the Appeals Council before bringing her case to this Court. Lena J. v. Comm’r of
8 Soc. Sec., 2019 WL 3291039, Case No. C18-6007-RBL-BAT (W.D. Wash. July 1,
9 2019) is instructive on this front. In Lena, the ALJ refused to consider a single
10 physician’s report. The report was submitted a week after the physician examined
11 the plaintiff, but only two days before the scheduled hearing. The ALJ found that
12 the requirements of 20 C.F.R. §§ 404.953(b) and 416.935(b) were not met. Id. at
13 *2. Lena presented the excluded evidence to the Appeals Council, which made
14 inconsistent statements. The Appeals Council stated that the “[physician’s] report
15 ‘does not show a reasonable probability that it would change the outcome of the
16 decision.” Id. But the Appeals Council also stated that it “did not consider the
17 exhibit and this evidence.” Id. On review, the District Court noted that the
18 statements were “mutually exclusive and cannot both be true,” and went on to find
19 that “the Appeals Council considered the report and it is therefore part of the
20 record,” that the district court had to consider. After consideration of the evidence,
21 the court held that it was material and left the ALJ’s opinion unsupported by
22 substantial evidence, so that remand was appropriate. Id. at *3. For reasons
23 unknown to the Court, counsel below seems to have eschewed this potential avenue
24 to have the evidence considered. Whether the Appeals Council would have
25 considered it or not is a matter of speculation, but it again demonstrates a lack of
26 diligence with respect to the 3000 pages of evidence.
27 ///
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1 V. CONCLUSION
2 It is the burden of a claimant seeking DIB and SSI to present evidence of
3 || disability. Although the Regulations are not intended to exclude relevant evidence —
4 || notably, the five day rule requires consideration of late evidence if any of a number
5 || of factors exist — they must (and do) provide some limits on what ALJ’s are required
6 || □□ consider. Here, voluminous records were presented to the ALJ without notice,
7 || and Plaintiff has failed to show the diligence required to overcome this tardiness.
8 || For these and the additional foregoing reasons, IT IS ORDERED that the decision
9 || of the Commissioner finding Plaintiff not disabled is AFFIRMED.
10 IT IS SO ORDERED.
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12 |} DATED: April 6, 2020
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UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10037543. Public record. Not legal advice.