Mack v. Colvin

173 F.Supp.3d 999

Earl J. Mack, Plaintiff,

v.Carolyn W. Colvin, Defendant.

CASE NO. 14cv2050 WQH-JMA

United States District Court, S.D. California.

Signed March 29, 2016

Steven G. Rosales, Law Office of Lawrence D. Rohlfing, Sante Fe Springs, CA, for Plaintiff.

U.S. Attorney CV, Thomas C. Stahl, U.S. Attorneys Office, Southern District of California, San Diego, CA, Timothy R. Bolin, Special Assistant United States Attorney, San Francisco, CA, for Defendant.

ORDER

HAYES, Judge:

The matter before the Court is the Report and Recommendation (ECF No. 21) issued by United States Magistrate Judge Jan M. Adler, recommending that the motion for summary judgment (ECF No. 16) filed by Plaintiff be granted, the cross-motion for summary judgment (ECF No. 20) filed by Defendant be denied, and the case be remanded for a calculation and award of SSI benefits.

I. Background

Plaintiff was born on August 21, 1955. (Admin R. at 248). On July 16, 2008, Plaintiff filed an application for Supplemental Security Income (“SSI”) with the Social Security Administration, alleging a disability onset date of June 1, 2008. Id. at 213, 248. On November 25, 2008, Plaintiff's application was denied. Id. at 108. On February 13, 2009, the denial was affirmed on reconsideration. Id. at 117. On March 20, 2009, Plaintiff requested an administrative hearing. Id. at 123. On September 2, 2010, a hearing was conducted by Administrative Law Judge (“ALJ”) Eve B. Godfrey. Id. at 60. On November 24, 2010, the ALJ issued a decision that Plaintiff is not disabled under section 1614(a)(3)(A) of the Social Security Act. Id. at 89-96.

On February 15, 2012, the Appeals Council for the Social Security Administration (“SSA”) granted Plaintiff's request to review the decision of the ALJ, vacated the hearing decision, and remanded the case for further proceedings. Id. at 103-104. In its order, the Appeals Council stated,

The hearing decision found that the claimant had the residual functional capacity to perform medium work, that he was unable to perform his past relevant work, that he was 52 years old on the date the application was filed and had a 12^thgrade education. The hearing decision then found that if the claimant had the residual functional capacity to perform the full range of medium work that Medical-Vocational Rule 203.29 would direct a finding of “not disabled.” The claimant's earning record, however, indicates that he has not worked substantial gainful activity in the fifteen years prior to the hearing decision, and therefore has no past relevant work. In addition, the record is unclear as to the claimant's education, as he had reported to the State agency Consultative Examiner, Dr. Gregory M. Nicholson, M.D., that he had dropped out of school in the 12^thgrade and he testified at the hearing that he only completed the 11^thgrade. In addition, the hearing decision did not note that the claimant turned age 55 on August 21, 2010, prior to the date of the decision. The Appeals Council notes that if the claimant had completed the 12^thgrade, Medical-Vocational rules 203.21 and 203.14 would be used, and each directs a finding of “not disabled.” If the claimant had completed only the 11 ^thgrade, then Medical-Vocational rules 203.18 and 203.10 would be used, and while Rule 203.18 directs a finding of “not disabled” Rule 203.10 directs a finding of “disabled.”

Upon remand the Administrative Law Judge will further evaluate the claimant's educational history to determine if the claimant's education had progressed to the 11^thgrade or 12^thgrade, and then determine and apply the correct Medical-Vocational rules.

Id. at 103 (citations omitted).

On September 12, 2012, ALJ Eve B. Godfrey conducted a second hearing. Id. at 53. On October 24, 2012, the ALJ issued a decision that Plaintiff was not disabled. Id. at 17-24. In the decision, the ALJ stated

The claimant testified at the prior hearing that he only completed 11 years of formal education and did not obtain a GED certificate.

The record shows conflicting evidence concerning the highest grade that the claimant has completed. In his most recent Disability Report (Form SSA-3368) completed on December 13, 2010, the claimant stated that he completed 11 years of formal education.

However, in the Disability Report that was received by the Administration on July 16, 2008, the claimant stated that he completed 12 years of formal education.

I give most weight to the earlier record to determine the education attained by the claimant. It was made at a time before the claimant would have been aware of any reason to suggest he was less educated. Moreover, the claimant's attorney was invited to produce any evidence on this issue in April, 2012 and never did so. Therefore, I resolve the conflict in the record based on the first Disability Report and find that the claimant completed 12 years of formal education, which is considered a high school education.

Id. at 23 (citations omitted).

On April 21, 2014, the Appeals Council for the SSA denied Plaintiff's request for review of the October 24, 2012 decision by the ALJ. Id. at 4. On July 28, 2014, the Appeals Council granted Plaintiff an extension of time to file a civil action. Id. at 2. On August 29, 2014, Plaintiff initiated this action by filing a Complaint for Review of Final Decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). (ECF No. 1).

On June 2, 2015, Plaintiff filed a motion for summary judgment. (ECF No. 16). On August 3, 2015, Defendant filed an amended cross-motion for summary judgment. (ECF No. 20).

On February 10, 2016, the Magistrate Judge issued a Report and Recommendation. (ECF No. 21). The Magistrate Judge stated in part,

the ALJ's finding that Plaintiff completed twelve years of formal education is not supported by substantial evidence in the record.... Other than the lone statement in his 2008 disability report that he completed 12th grade, Plaintiff has always consistently stated that he completed only eleven grades, and dropped out of school in the 12th grade.... Additionally, Plaintiff has always consistently stated that he attended special education classes in school. (Admin R. 66, 394, 447, 478, 601). The only time he reportedly indicated differently was in the same 2008 disability report upon which the ALJ relies. (See id. at 317). This discrepancy provides some indication that the 2008 disability report (which was likely prepared by someone other than Plaintiff) may have contained erroneous information. Moreover, that Plaintiff was enrolled in special education classes, coupled with his present stated inability to read well and fill out forms on his own (See id. at 116, 332, 349, 351, 363, 392-93, 586, 601), detracts from the ALJ's finding that Plaintiff has a “high school education” as defined by the SSA's regulations, regardless of what grade level he completed. See 20 C.F.R. § 416,964(b) (“The numerical grade that you completed in school may not represent your actual educational abilities.... The term education also includes how well you are able to communicate in English.”).... [S]ubstantial evidence in the record demonstrates that Plaintiff has a limited education as defined by the regulations.

(ECF No. 21 at 8-10).

The Magistrate Judge stated that “there is no need to further develop the record or hold further administrative hearings.... Plaintiff submitted what he could....” (ECF No. 21 at 11 (citing Admin R. at 23, 55-56, 410)). The Magistrate Judge stated that “the ALJ failed to provide legally sufficient reason to reject Plaintiff's testimony that he completed 11th, not 12th, grade.” (ECF No. 21 at 11). The Magistrate Judge stated that “if the improperly discredited evidence—that Plaintiff completed 11th grade, dropped out of school in 12th grade, and attended special education classes—were credited as true, the ALJ would be required on remand to find that Plaintiff has a limited education and is disabled under 20 C.F.R. § 416.964(b) (as well as 20 C.F.R. pt. 404, subpt. P, app. 2, § 203.10 (Medical-Vocational Rule 203.10)).” Id. Finding that the record “demonstrates that Plaintiff was disabled as of the date he turned 55 years old (August 21, 2010),” the Magistrate Judge recommended that “Plaintiff's motion for summary judgment be GRANTED, Defendant's cross-motion be DENIED, and the case be remanded for a calculation and award of SSI benefits.” Id.

On February 23, 2016, Defendant filed objections to the Report and Recommendation. (ECF No. 22). On March 7, 2016, Plaintiff filed a reply. (ECF No. 23).

II. Legal Standard

The duties of the district court in connection with a report and recommendation of a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b). The district judge must “make a de novo determination of those portions of the report ... to which objection is made,” and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b). The district court need not review de novo those portions of a Report and Recommendation to which neither party objects. See Wang v. Masaitis , 416 F.3d 992, 1000 n. 13 (9th Cir.2005) ; U.S. v. Reyna – Tapia , 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.”).

III. Discussion

Defendant objects to the conclusion in the Report and Recommendation that the ALJ erred in finding that the Plaintiff had a twelfth-grade education. Defendant contends that the Court should defer to the decision of the ALJ to give the most weight to Plaintiff's Disability Report indicating that he completed twelfth grade because it was made “before [Plaintiff] was aware of any reason to suggest he was less educated.” Id. at 4. Defendant objects to the recommendation that the case be remanded for an award of SSI benefits and contends that the Court...