1 2 3 4 5 6 7 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 15 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

(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 25

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. 27 2 Andrew M. Saul, now Commissioner of the Social Security Administration, is 28 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. 3 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.] 25

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 28 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. 19 [AR 32.] Counsel below agreed: “Yes.” And the ALJ concluded, “I can’t admit 20 those.” [Id.] 21 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 23

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 25 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 28 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. 9 [AR 18-19.] 10 Finally, Plaintiff’s prior counsel did not try to submit the evidence to the 11 Appeals Counsel, and there is no explanation or argument related to this failure in 12 Plaintiff’s papers. 13

14 III. GOVERNING STANDARD 15 Under

(g), the Court reviews the Commissioner’s decision to 16 determine if: (1) the Commissioner’s findings are supported by substantial 17 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 18 Comm’r Soc. Sec. Admin.,

(9th Cir. 2008); Brewes v. Comm’r 19 Soc. Sec. Admin.,

(9th Cir. 2012) (internal citation omitted). 20 “Substantial evidence is more than a mere scintilla but less than a preponderance; it 21 is such relevant evidence as a reasonable mind might accept as adequate to support a 22 conclusion.” Gutierrez v. Comm’r of Soc. Sec.,

(9th Cir. 23 2014) (internal citations omitted). 24 The Court will uphold the Commissioner’s decision when the evidence is 25 susceptible to more than one rational interpretation. See Molina v. Astrue,

(9th Cir. 2012). However, the Court may review only the reasons stated 27 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 28 1 did not rely.” Orn v. Astrue,

(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,

(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

(b), which went 10 into effect on January 17, 2017. The Commissioner required compliance starting on 11 May 1, 2017.

(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

(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,

, at *1 (May 1, 2017). It further directs 19 that an ALJ will follow certain instructions to consider whether to admit untimely 20 evidence.

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

. 17 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.,

, 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.

. 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.”

. 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.

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.

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,

, 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.”

. 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.,

, 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

(b) and 416.935(b) were not met.

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.”

But the Appeals Council also stated that it “did not consider the 17 exhibit and this evidence.”

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.

. 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 /// 28 /// 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. 11 12 |} DATED: April 6, 2020 13 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10