IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Case No.: No. 11-16193 D.C. No. 1:09-CV-01764-GSA
ZABIAN R. CROSBY
Appellant,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION
Appellee
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
REPLY AND CLOSING BRIEF OF APPELLANT
Zabian R. Crosby, In Pro Se
Daniel P. Talbert, Attorney
For Social Security Administration
For the complete PDF of this brief, including citations, table of authorities, and footnotes, contact the California Office Of Federal Insurance Advocacy, at http://coofia.org
Appellate Jurisdictional Statement
The United States District Court for the Eastern District of California had jurisdiction pursuant to 42 U.S.C. § 405(g) to review the final decision of the Commissioner of Social Security (Commissioner) regarding Zabian Crosby’s (Claimant’s) claims for Disability Insurance Benefits and Supplemental Security Income payments based on disability. On March 18, 2011, the District Court affirmed the Commissioner’s final decision that Claimant was not disabled, and entered judgment in favor of the Commissioner and against Claimant. On May 10, 2011, Claimant timely filed his Notice of Appeal.
Statement of Issues
The Appellant argued that Appellee’s Administrative Law Judge, failed to provide proper grounds to meet the substantial evidence standard, committing harmful error to the Appellant, due to SSA Pro Forma Defects present within Appellee’s non-substantial argument and [s]ubmitted AR within Appellee Exhibits; I, II, and III. The Commissioner disagreed, maintaining that the ALJ deliberations [w]ere complete and properly weighed the evidence; that the medical record was [C]omprehensive, [C]omplete, and [S]ubstantially weighed, not in error; 20 C.F.R. §§ 404.1526(a), 416.926(a). Nonetheless, “the Claimant was denied benefits under the ‘equivalence’ step by showing that the overall functional impact of his unlisted impairment or combination of impairments is not as severe as that of a listed impairment.” Zebley, 493 U.S. at 531. Ultimately, the question of equivalence is an issue reserved for the Commissioner, see Spellman v. Shalala, 1 F.3d 357 (5th Cir. 1993); 20 C.F.R. §§ 404.1527(e), 416.927(e).
The ALJ erred in finding that the Appellant [d]id not meet or equal Listing 12.04(C); (2) Failed to conduct a comprehensive evaluation of Appellant’s Mental, Physical, and Medication Side-Effects that produce other Impairments; (3) Failed to properly evaluate Appellant’s Factitious Disorder;*fn7; (4) Failed to properly evaluate Appellant’s Character and Credibility; (5) Failed to properly develop the proper basis for RFC (Residual Functional Capacity). The Cause: Defective, incomplete, or missing non-submitted Treating Physician Medical Record Evidence for period, August 2005 – March 2007.[1]
Statement of the Case
The Appellant filed an original application for Social Security Disability Insurance benefits on January 14, 2005 and was found eligible to apply for benefits, having satisfied the administrative criteria (AR, Pgs., 111-112). Appellant adhered to all directives of the Social Security Administration and was denied entitlement at: Initial Application, Reconsideration, Administrative Law Judge Hearing, and Review by the Appeals Council (AR, page 5). Appellant subsequently sought relief by filing a civil action in United States District Court against the Commissioner of Social Security on October 7, 2009. The District Court Affirmed for the Commissioner, stating substantial evidence, that the Lower Court’s reasoning was proper and substantial by the evidence within the Appellant’s Medical Record. The Appellant disagreed, filing the matter now with the Ninth Circuit Court of Appeals to determine whether the SSA was diligent in the development of [Substantial Evidence], the basis for denying the Appellant disability status.
The District Court improperly affirmed the decision of ALJ Thompson, who cited “substantial evidence;” that, both his reasoning and decisions were based upon the [O]pinion of competent and qualified Consultants, Experts, and Medical Staff, responsible for complete medical records, developed by SSA Non-Treating Examining Physicians Dr. Garcia, Dr. Glaser, and Certifying Supervisor, Dr. Murillo; medical staff personnel within the SSA Examination Unit, who opined through Psychiatric Review Technique AR, PG. 306; SSA-Form 2506-BK(06-2001) 6/28/05 Functional Capacity Assessment AR, Pg. 323; SSA-Form SSA-4734-BK EF (02-20043) 7/12/2005 A.) Initials and B.) Provided [A]uthorizing Medical Physician [O]pinion Signature.
The Administrative Record Exhibit Evidence, revealed severe disparities within the SSA In-House / Internal Data, as Agency Medical Record Docket Information Forms beginning July, 2005. The Docket [s]hould show a continuing or periodic presence of [q]ualifying medical record opinion by Agency Doctors as evidence of medically-based-up-to-date opinion[2] up to March, 2007.[3] The Administrative Hearing was adjudicated upon [n]on-current medical evidence, reasoning, and analysis. Qualified / Current Medical Doctor Determination was required to either contradict or support the [c]urrent long-term Treating Physician medical findings and treatment.
ALJ Thompson, not a Physician, relied on [E]xamining and [A]djudication Unit medical record development, and unfortunately, upon a body of SSA Pro Forma defects i.e., the missing internal medical record [O]pinion of the Examining Unit was twenty-four months out of date. Gone are updated Opinions of Dr. Murillo, Dr. Garcia, and Dr. Glaser in 2006 and 2007 to provide the purported “greater weight” to deny the Appellant’s Treating Physician Opinion(s) on the Appellant’s disabled status. ALJ Thompson therefore opined despite the deficiencies, based on the out-of-date SSA Medical Record Docket medical information from 2004. ALJ Thompson improperly developed [D]efective Residual Functional Capacity, (RFC) Hypothetical Questions I and II; the product of the defective and incomplete medical evidence; two years out of date. ALJ Thompson, not a Vocational Rehabilitation Expert, produced two assumptive questions for hypothetical reasoning and response; questions that could only be constructed upon medical evidence that he reasonably would rely on as grounded in the 2002-2005 SSA Disability Determination, (DDU) provided Form Opinions.
Treating Physician Medical Record Evidence however, was “never in-fact processed” by the SSA Examining Unit for Medical Professional opinion and medical record docket update, nor is it presented now in any format as Exhibit Evidence. Appellant proclaims: “Please Produce the Specific Doctor’s Authorizing Signatures, and Current Opinion Forms – Who Deemed Him Not Disabled.” The partial available evidence of [O]missions in claimant processing due to SSA Pro Forma Defects to say the least, “stands as an embarrassment; the errors were obvious upon close review, and forensic analysis of the SSA Forms for omissions and errors during the subject timeline, August 2005 to March 2007.”
Statement of the Facts
The facts reveal, the SSA Examining Unit failed to perform and provide “Updated” and “Authorized Medical Staff” and Qualified Supervisor Sign-off Medical Opinion” for 148 pages of submitted “Treating Physician Medical Evidence.” AR, Page 4 provided as Appellee Exhibits, AC-3 and AC-4 stated: 65 pages of Treating Medical Evidence, was submitted during February, 2007, six weeks prior to the Administrative Hearing held on March 23, 2007. [4] There is no indication that the SSA was able to [A]bsorb and or [I]ncorporate the volume of submitted Treating Physician medical record information for review and update of the SSA Agency paper and Electronic Medical Record Docket.[5] If it was developed, it is removed, hidden, or never created. Where are the SSA Doctors beyond the initial Examining Period after July 2005? The internal SSA Agency audit and paper trail ends abruptly, July 2005. The medical professional opinion and forms are needed to show update(s) within the SSA record of Treating Physician diagnosis, mere signs and severe symptoms over a two year period; 2005 – 2007. Medical opinion(s) of the Appellant’s many physical and psychological listed impairments, barring him from working are completely [S]ilent within the SSA Agency Internal Medical Record.
The Administrative Record is deficient in medical opinion beyond July 2005, despite the twenty-four (24) month period of Treating Physician evidence that the SSA has a [d]uty to receive, evaluate, opine, update internal agency record data, and refer those changes in medical determination (in Agreement or Not) to the appropriate internal Agency Unit, in this case, the Adjudication Unit. The VA Medical Records, although present for purposes of mere “Exhibit,” were rendered medically “Inert” by the SSA through its failure to update the Internal Appellant Medical Record Docket, typically developed by the DDS and Examining Unit Physicians through period ending, March, 2007. Exhibit evidence of the [completely developed] medical record claimant docket ends abruptly, effective July 2005. Appellant therefore cites clear and simple – Harmful Error.
Approximately 48 pages, as per the Appellee Exhibit were unprocessed prior to the hearing with ALJ Thompson. There is no Request or Notice of Continuance by the ALJ for proper update of the SSA Claimant Medical Record Docket prior to hearing. If it is obvious to a mere Layman, it must be tantamount to willful and harmful error, sufficient to establish signs of Mens Rea. The Appellant’s file IS constructively incomplete, post July 2005 of “Any Standing” “Qualified Medical Physician beyond July 2005,” “In- the-Record, and “Stated “In The Forms” via ANY Agency “SSA-Form” regarding 1.) Medical Determination,[6] 2.) Medical Record Processing, and 3.) Examining Physician Signature by any SSA Personnel, Medical Examining Physician. The effect: Appellee’s arguments are simply reduced to meaningless banter, as the assertions amount to carefully crafted and practiced story-telling that is without Qualified “Medical Opinion” from those who practice Law, not Medicine. To do so put simply, – is to engage in “Medical Quackery.”
ALJ exercised through the lack of proper medical development of the record beyond July, 2005, an abuse of discretion in determining disability status. 1. 20 CFR §§ 404.970 (a) states that the decision of an ALJ is subject to review if there is evidence that: 2. (a)(1): “There appears to be an abuse of discretion by the administrative law judge” 3. (a)(2): “There is an error of law” 4. (a)(3): “The action, findings or conclusions of the administrative law judge are not supported by substantial evidence.”
Greater weight is due for Treating Physicians, who are in a better position to provide a “detailed, longitudinal picture” of the medical impairments “that cannot be obtained from the objective medical findings alone, or from reports of individual examinations, such as consultative examinations…” 4. (d)(2)(i): The longer the patient has been treated by a source and the more times the patient has been seen by that source, the greater the weight is given to that source 5. (f)(2)(i): Although an ALJ must consider the opinions of State Agency Consultants, they are to do so “except for the ultimate determination about whether [a patient is] disabled.”
In Menendez-Donis v. Ashcroft, 360 F.3d 915 (8th Cir. 2004), the court stated that under the substantial evidence standard the appellate court cannot substitute its determination for that of the administrative fact-finder due to the reason that the appellate court believes that the fact-finder is clearly wrong. Instead, before the appellate court shall reverse, it must find that it would not be possible for any reasonable fact-finder to come to the conclusion reached by the administrator. The court further listed three conditions that a reviewing court must examine before upholding the factual findings under the substantial evidence standard of review.
The three conditions are:
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The factual finding must be supported by some substantial level of evidence that does not require rising to the level of a preponderance.
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When the entire record is examined, the evidence should be substantial: Contrary evidence shall not be simply neglected on review.
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The evidence should be such that it would be possible for a reasonable fact-finder to reach the same conclusions that the administrative fact-finder did.
If any one of the three conditions is not met, the administrative decision should be reversed.
Summary of Argument
The SSA Medical Record Docket failed to incorporate Treating Physician Medical Records. The action is indicated through SSA Examining Unit Form; SSA-3367 EDCS; see AR, Pg. 101, Questions 11 and 12, Indicated by Examining Unit Interviewer, T. Rupp on 2/8/2007; T. Rupp, an SSA Employee, despite the presence of the Appellee’s stated [141] pages of Treating Physician Medical Record Evidence, [65] pages of Treating Physician Medical Record Evidence, submitted prior to [March 23rd,] was purposely or carelessly checked – “No DDS [D]evelopment of The Medical Record is necessary.[8] The reporting mistake triggered the fatal beginnings of many “Substantial Errors.” Errors that were precipitated by personnel inadvertence resulting in [G]ross defective Findings and Conclusions by the SSA Adjudication Unit and Errors in Reasoning by ALJ Thompson during Appellant’s Administrative Hearing, held just 6 weeks later on March 23, 2007. The ALJ’s decision did not build a logical bridge between those medical opinions from 2005 to 2006, and up to 2007; a period of long-term medical treatment of two years.
Appellee Exhibit, Pg. 3; Exh. No. 11, Part No. F, Titled, Medical Records covering the period from 5/09/06 to 3/15/07 from Department of Veterans, No. of Pages – 148; There is [N]o SSA-Form Process, Evaluation, and Update post May 9, 2006 – March 23,2007, or [I]ndication of additional case file submittal, claim processing, evaluation, and medical record updating through SSA, Technical Corrective Act, (TCA). The information audit for SSA Claimant Forms post July 2005 is “a barren landscape.” Electronic Claimant Database update information for action, update, and audit trail purposes are absent from the Appellee’s provided medical record.[9] There is no indication of any SSA-Technical Corrective Act, (TCA) Form, transferring jurisdiction of Appellant’s case file from the SSA Examining Unit Non-Treating Examining Physicians to the SSA Adjudication Unit Legal Staff for further processing and proceedings prior to the Administrative Hearing on March 23, 2007.
The medical records are missing which substantiate the ALJ’s medical basis for the denial of the Appellant’s many listed impairments. ALJ Thompson was unable to properly evaluate due to missing qualified medical opinion, forms, and audit trail for the Appellant’s VA medical record information, as it is missing from the Administrative Record for period, July, 2005 thru March 22, 2007. He failed to evaluate the 1.) Longitudinal diagnosis, 2.) Treatment, 3.) Therapies, 4.) Medications, 5.) Side-effects, and 6.) Array of [qualified] medical opinions of the treating physicians, thus and again, erroneously affording treating physicians lesser weight than Non-Treating and Non-Examining SSA Agency Physicians, therefore, the application of a double-standard to the two-year old professional opinions of SSA Examining Unit Physicians, and repeatedly asserted in the ruling that Crosby’s combination of impairments are not substantial, nor supported by evidence; all in violation of 20 CFR §§ 404.1527 (d) through (f), 20 CFR §§ 404.970 (a)(1)(2)(3), and 20 CFR §§ 404.1520 (a)(1)(2)(3).
Conclusion
Clearly, the SSA’s Left Hand (Examining Unit), did not know or was unable to stay at pace with the SSA’s Right Hand (Adjudication Unit). For reasons stated in the Brief, the Appellant does hereby request that the Court of Appeals for the U.S. Ninth Circuit Reverse the decision of the District Court, Grant the Appellant Disability Status under Listing 12.04(C), Calculate for Payment, and Preclude Remand. There is no value in further future proceedings as by the nature and tone within the final portion of the Appellee’s Opposition Brief. The Matter has caused continual psychological stress and economic hardship upon the Appellant in these adversarial proceedings for a period of six years. Relief is the wish by the Appellant, and now rests.
Respectfully submitted,
Zabian R. Crosby, Appellant, In Pro Se.
December 17, 2011
For the complete PDF of this brief, including citations, table of authorities, and footnotes, contact the California Office Of Federal Insurance Advocacy, at http://coofia.org
COOFIA CLAIMANT DEFENSE 