Joseph M. Salgado v. Michael J. Astrue, No. 5:2012cv00374 - Document 22 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff's request for the award of benefits is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for the award of benefits and any other action consistent with this Memorandum Opinion. ***See attached Order for details.*** (es)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 JOSEPH M. SALGADO, 13 14 15 16 17 Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-374-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on March 19, 2012, seeking review of the Commissioner s denial 22 of his application for Supplemental Security Income payments. The parties filed Consents to 23 proceed before the undersigned Magistrate Judge on April 12, 2012, and April 13, 2012. The 24 parties filed a Joint Stipulation on December 12, 2012, that addresses their positions concerning 25 the disputed issues in the case. The Court has taken the Joint Stipulation under submission 26 without oral argument. 27 28 1 II. 2 BACKGROUND 3 Plaintiff was born on November 21, 1948. [Administrative Record ( AR ) at 229.] Plaintiff 4 completed one year of college after graduating from high school, and has past relevant work 5 experience as a field worker. [AR at 52, 256.] 6 On October 19, 1993, plaintiff protectively filed an application for Supplemental Security 7 Income ( SSI ) payments.1 [AR at 224-28.] After his application was denied initially and on 8 reconsideration, plaintiff requested a hearing before an Administrative Law Judge ( ALJ ). [AR 9 at 239-51.] A hearing was held on October 31, 1995, at which time plaintiff appeared with a 10 paralegal representative and testified on his own behalf. [AR at 42-83.] On December 20, 1995, 11 the ALJ determined that plaintiff was not disabled. [AR at 369-78.] Plaintiff requested review of 12 the hearing decision. [AR at 379.] On December 3, 1996, the Appeals Council granted plaintiff s 13 request for review, vacated the ALJ s decision, and remanded the case for further administrative 14 proceedings for the purpose of reassessing plaintiff s medical disability. [AR at 386-88.] A second 15 hearing was held on August 13, 1997, at which time plaintiff again appeared with a paralegal 16 representative and testified on his own behalf. [AR at 84-148.] A medical expert and a vocational 17 expert also testified. [AR at 127-38.] On August 27, 1997, the ALJ determined that plaintiff was 18 disabled and eligible for SSI payments. [AR at 509-19.] On November 5, 1997, the Social 19 Security Administration issued a Notice of Disapproved Claim, in which it notified plaintiff that he 20 was not eligible to receive SSI payments because he was born in Juarez, Mexico and had never 21 been legally admitted into the United States as an alien. [AR at 523-27.] Plaintiff filed a request 22 for reconsideration on December 16, 1997. [AR at 528-29.] On April 21, 1998, the Social Security 23 Administration denied plaintiff s request for reconsideration based on the finding that his place of 24 birth was Juarez, Mexico. [AR at 532-36.] Plaintiff requested a hearing before an ALJ. [AR at 25 26 27 28 1 Plaintiff first applied for SSI benefits on March 19, 1990. Although he was initially found eligible for those benefits, it was later determined that he was ineligible for the period of June 1990 through October 1992, based on his inability to establish the requirements of a citizen or national of the United States. [AR at 19-23.] 2 1 537-38.] Two hearings were then held before a second ALJ -- on February 25, 1999, and October 2 27, 1999. [AR at 149-200.] On March 30, 2000, the ALJ determined that plaintiff did not meet the 3 requirements as a citizen or national of the United States, and therefore was not eligible for SSI 4 payments. [AR at 674-78.] Plaintiff requested review of the hearing decision. [AR at 645.] On 5 December 3, 2001, the Appeals Council denied plaintiff s request for review. [AR at 653-54.] 6 However, on February 22, 2002, the Appeals Council concluded that a new hearing and decision 7 were needed based on a complete evidentiary record, and thus granted plaintiff s request for 8 review and remanded the case for further administrative proceedings. [AR at 658-62.] A hearing 9 was held before a third ALJ on June 11, 2002, at which time plaintiff appeared with counsel and 10 testified on his own behalf. [AR at 201-23.] On August 21, 2002, the ALJ found that plaintiff did 11 not meet the requirements as a citizen or national of the United States, and thus denied him SSI 12 benefits. [AR at 16-23.] Plaintiff once again requested review of the hearing decision. [AR at 15.] 13 On September 26, 2003, the Appeals Council denied plaintiff s request for review. [AR at 9-12.] 14 Plaintiff then filed a civil action in this Court, Case No. ED CV 03-1320-PLA, challenging 15 the Commissioner s decision. On October 26, 2004, the Court remanded the matter for further 16 proceedings, concluding that the August 21, 2002, decision of the third ALJ failed to provide 17 appropriate reasons for rejecting the testimony of plaintiff and his family members and failed to 18 properly consider evidence from the Mexican Consulate. [AR at 727-727H.] On December 30, 19 2004, the Appeals Council vacated the ALJ s decision and remanded the case for further 20 proceedings consistent with the Court s 2004 Order. [AR at 728.] On September 29, 2005, a 21 fourth hearing was held before a fourth ALJ. [AR at 741-61.] On June 6, 2006, that ALJ 22 determined that plaintiff did not meet the requirements as a citizen or national of the United States, 23 and therefore was not eligible for SSI payments. [AR at 695-701.] 24 Plaintiff filed a second civil action in this Court, Case No. ED CV 06-848-PLA. Pursuant 25 to a Stipulation to Voluntary Remand, the Court remanded the case for further proceedings on 26 February 22, 2007, directing the ALJ to consider the certified birth certificate issued by the State 27 of Texas and to provide another hearing on the issue of whether plaintiff is a United States citizen. 28 3 1 [AR at 1115-19.] On April 3, 2007, the Appeals Council vacated the ALJ s decision and remanded 2 the case for further proceedings consistent with the Court s 2007 Order. [AR at 1120-23.] Plaintiff 3 declined to appear for a hearing and requested a decision based on the evidence in the record. 4 [AR at 766.] On January 25, 2008, the fourth ALJ again found that plaintiff did not meet the 5 requirements as a citizen or national of the United States. [AR at 765-66.] 6 Plaintiff then filed a third civil action in this Court, Case No. ED CV 08-416-PLA. While that 7 case was pending, on May 29, 2008, plaintiff filed a new application for SSI payments. [AR at 8 1218-24.] On October 8, 2008, the agency again found with respect to the new application that 9 plaintiff was disabled and eligible for SSI payments. [AR at 1227-41.] Thereafter -- on August 19, 10 2009 -- in Case No. ED CV 08-416-PLA, the Court entered judgment for plaintiff and remanded 11 the case back to the Commissioner for further proceedings, directing the ALJ to properly consider 12 the evidence as a whole, including the lay witness statements of plaintiff s sisters, uncle, and 13 brother-in-law. [AR at 1243-55.] On January 23, 2010, the Appeals Council remanded the case 14 involving the 1993 application back to an ALJ, and also reopened the determination of eligibility 15 in connection with plaintiff s 2008 application because it found that that determination was based 16 on an erroneous application of internal agency policy. [AR at 1266-71.] On June 30, 2011, a fifth 17 ALJ held a hearing, at which time plaintiff again appeared with counsel and testified on his own 18 behalf. [AR at 1564-96.] On November 15, 2011, the fifth ALJ again determined that plaintiff is 19 not a United States citizen. [AR at 1182-94.] This action followed. 20 21 III. 22 STANDARD OF REVIEW 23 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 24 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 25 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 26 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 27 / 28 4 1 In this context, the term substantial evidence means more than a mere scintilla but less 2 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 3 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 4 1257. When determining whether substantial evidence exists to support the Commissioner s 5 decision, the Court examines the administrative record as a whole, considering adverse as well 6 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 7 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 8 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 9 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 10 11 IV. 12 THE ALJ S DECISION 13 Plaintiff contends that the ALJ, in reaching the conclusion that plaintiff is not a United States 14 citizen, used an improper legal standard and failed to properly weigh the evidence in the record. 15 [Joint Stipulation ( JS ) at 6-11.] 16 17 18 19 A. LEGAL STANDARD In order to be eligible for SSI benefits, a claimant must be a resident of the United States and, as relevant here, a citizen or a national of the United States. 20 C.F.R. § 416.202. 20 In his decision, the ALJ stated that the Commissioner s regulations provide that he must 21 base decisions on Title XVI applications on the preponderance of the evidence offered at the 22 hearing and otherwise included in the record. 20 C.F.R. § 416.1453(a). [AR at 1187.] The ALJ 23 then set forth a detailed discussion of the evidence in the record tending to establish that [plaintiff] 24 was born in the U.S., and the evidence in the record tending to establish that [plaintiff] was not 25 born in the U.S. [AR at 1188-93 (emphasis in original).] Finding that there is some credible 26 evidence that [plaintiff] was born in El Paso, Texas, and equally credible evidence that he was 27 born in Juarez, Chihuahua, Mexico, the ALJ concluded that [t]he evidence is, at best, equivocal 28 5 1 as to the exact location of [plaintiff s] birthplace. The ALJ therefore found that plaintiff failed to 2 prove by a preponderance of the evidence that he was born in the United States. [AR at 1193.] 3 Plaintiff contends that the ALJ failed to cite any authority specifically applying the 4 preponderance of the evidence standard to the issue of whether an SSI claimant is a United 5 States citizen, but simply bootstrapped the Social Security regulations which describe the [ALJ s] 6 duties in weighing medical evidence et cetera... . [JS at 7.] However, 20 C.F.R. § 416.1453(a), 7 in stating that the ALJ must base the decision on the preponderance of the evidence, does not 8 limit the application of this standard solely to the evaluation of medical evidence. See 20 C.F.R. 9 § 416.1453(a) ( The administrative law judge shall issue a written decision which gives the findings 10 of fact and the reasons for the decision. The administrative law judge must base the decision on 11 the preponderance of the evidence offered at the hearing or otherwise included in the record. ). 12 In addition, plaintiff fails to set forth what standard he believes the ALJ should have applied, and 13 does not cite any authority for the proposition that any standard other than the preponderance of 14 the evidence applies to this issue. Indeed, the preponderence of the evidence is the default 15 standard in civil and administrative proceedings. See Steadman v. Securities and Exchange 16 Comm n, 450 U.S. 91, 101 n.21, 101 S. Ct. 999, 67 L. Ed. 2d 69 (1981) ( The use of the 17 preponderance of the evidence standard is the traditional standard in civil and administrative 18 proceedings. It is the one contemplated by the APA, 5 U.S.C. § 556(d). ) (quoting Sea Island 19 Broadcasting Corp. v. Fed. Commc ns Comm n, 627 F.2d 240, 243 (D.C. Cir. 1980)); see also 20 Jones ex rel. Jones v. Chater, 101 F.3d 509, 511-12 (7th Cir. 1996) (applying the preponderance 21 of the evidence standard to the issue of whether the claimant had established that he was entitled 22 to child s survivor benefits as the child of the deceased insured individual, citing Steadman and 23 stating: we have no doubt that preponderance of the evidence is the proper standard, as it is the 24 default standard in civil and administrative proceedings ). Plaintiff has not cited any authority 25 demonstrating that the ALJ should have applied any other standard to determine this issue, and 26 thus his evidentiary standard argument fails. 27 / 28 / 6 1 B. THE ALJ S EVALUATION OF THE EVIDENCE 2 Next, plaintiff contends that the ALJ, in discussing the evidence in the record, improperly 3 fail[ed] to cite any evidence to which he attributed significant weight, let alone controlling weight, 4 but simply assigned some weight to numerous pieces of evidence both in favor and not in favor 5 of U.S. citizenship, and then concluded that the evidence was equivocal as to plaintiff s birthplace. 6 [JS at 8.] The Court agrees with plaintiff that substantial evidence does not support the ALJ s 7 overall treatment of the evidence insofar as he gave an insufficient reason to discount plaintiff s 8 parents statements, assigned weight to various pieces of evidence in an inconsistent manner, and 9 improperly discounted certain evidence in the record. 10 1. Plaintiff s Parents Statements 11 Altogether, plaintiff s parents submitted four statements declaring that plaintiff was born in 12 El Paso, Texas. In a September 22, 1995, declaration, plaintiff s father and mother stated that 13 plaintiff was born on a ranch in El Paso because they did not have a car with which to take 14 plaintiff s mother to a hospital. The declaration noted that the woman who helped with the delivery 15 was a [r]anch doctor. [AR at 606.] In a March 11, 1996, affidavit, plaintiff s mother attested that 16 plaintiff was born on a ranch in El Paso, Texa[s]. [AR at 552.] In a November 25, 1997, 17 declaration, plaintiff s father and mother stated that on their way to visit the parents of one of them 18 in Fresnillo, which is in the state of Zacatecas, Mexico, a Mexican immigration official asked where 19 plaintiff was born, and his parents responded that he had been born in El Paso. [AR at 565.] The 20 officials told plaintiff s parents that plaintiff had to be register[e]d in Juarez, Chihuahua in order 21 to comply with the ... Mexican [i]mmigration policy ... which states that anybody traveling beyond 22 100 [miles ] limit into the interior of Mexico has to be registered as a [M]exican citizen or have a 23 foreign traveling visa. Plaintiff s parents explained that: That s why we decide[d] to register[] him 24 in C[iuda]d Juarez, Chihuahua. [Id.] Finally, in a July 24, 1998, affidavit, plaintiff s mother stated 25 that on January 10, 1949, she and plaintiff s father decided to take plaintiff to Fresnillo, Zacatecas, 26 so that he could be treated for continuous ... high fevers. [AR at 632.] She stated that upon 27 preparing to board a bus for Fresnillo, she showed a Mexican immigration official documentation 28 7 1 for the entire family except for plaintiff, explaining that plaintiff had been born in El Paso, Texas, 2 and [they] had forgotten his documentation, but did not want to go back because [he] had very 3 high fevers, and they wanted to take him as soon as possible to Fresnillo, Zacatecas, so that he 4 could be cured by [her] aunt, [the] sister of [her] mother. [Id.] The immigration official informed 5 plaintiff s parents that plaintiff needed to have some identification in order to avoid additional 6 problems at other immigration stops along the road, and referred them to the Civil Registration 7 [O]ffice, where they obtained a ticket of registration for plaintiff.2 Plaintiff s mother stated that 8 [t]his was the only form of identification that the Civil Registration Department gave [them] in order 9 for [plaintiff] to travel without problems and he was able to continue on our route to Fresnillo, 10 Zacatecas. [Id.] 11 In his decision, the ALJ afforded some weight to the various statements from [plaintiff] 12 and his family, but did not afford them controlling weight because there is evidence which 13 contradicts these various statements. [AR at 1189.] In discussing the statements submitted by 14 plaintiff s parents in particular, the ALJ stated that although plaintiff s parents asserted that ... they 15 ... took [plaintiff] to Fresnillo, Zacatecas, Mexico to visit family in hopes that his maternal 16 grandmother could cure him using herbs, [n]otably, his mother also somewhat contradictorily 17 asserted in a separate document that she wanted the child to be treated by her aunt (her mother s 18 sister), not her mother. [AR at 1188 (citing AR at 541-43, 632).] The first statement the ALJ 19 refers to in this analysis, however, is plaintiff s sister Alicia s recounting of a statement made by 20 plaintiff s mother -- not a firsthand statement made by plaintiff s mother. In the January 2, 1998, 21 declaration cited by the ALJ, Alicia stated that when Mexican immigration officers asked her 22 parents for identification for each family member prior to boarding the bus to Fresnillo, her mother 23 show[ed] [plaintiff] to the officer [and said:] [ ]Look[,] he is very sick, we are taking him to 24 Fresnillo[,] Zacatecas[,] where my mother is a ranch doctor and uses herbs to cure people and we 25 26 27 28 2 Plaintiff s mother and his sister Alicia represent that this is how plaintiff came to have a Mexican Birth Certificate, issued on January 10, 1949, which reflects that plaintiff was born on November 21, 1948, in Juarez, Chihuahua, Mexico [AR at 548-50]. [AR at 542-43, 632; see also AR at 1192.] 8 1 know she is going to save him.[ ] [AR at 542.] As the ALJ, elsewhere in his decision (see 2 discussion infra), gave no weight to statements about plaintiff s birthplace that the ALJ determined 3 were hearsay, it was improper for him to discount plaintiff s parents credibility by relying on 4 plaintiff s sister s hearsay rendition of a statement plaintiff s mother may have made. Moreover, 5 plaintiff s parents consistently represented that plaintiff s place of birth was El Paso, Texas (as did 6 Alicia), and also consistently represented that they brought him to Fresnillo in early 1949 to see 7 family and to treat plaintiff for his high fevers.3 Because the ALJ did not identify any internal 8 inconsistency within plaintiff s parents firsthand statements, but only identified an inconsistency 9 between plaintiff s parents firsthand statements (that they wanted him to be treated by his 10 mother s aunt), and a hearsay statement attributed to plaintiff s mother (that they wanted plaintiff 11 to be treated by his maternal grandmother), substantial evidence does not support the ALJ s 12 apparent discounting, based on this inconsistency, of plaintiff s parents statements about the 13 location of plaintiff s birth. This is particularly true in light of the fact that the ALJ acknowledged 14 that plaintiff s parents statements about plaintiff s place of birth were based on personal 15 knowledge. [See AR at 1189.] The ALJ gave no sufficient reason to discount plaintiff s parents 16 repeated representations that plaintiff was born in El Paso, Texas. 17 2. ALJ s Inconsistent Treatment of Certain Evidence 18 Moreover, the ALJ was inconsistent in the manner he assigned weight to the evidence 19 concerning plaintiff s place of birth. Specifically, while the ALJ gave some weight to documents 20 indicating that plaintiff was born in Juarez -- when there is no evidence that the individuals who 21 completed those documents had any personal knowledge of where plaintiff was born -- the ALJ 22 simultaneously: (1) completely rejected statements that plaintiff was born in El Paso made by 23 individuals the ALJ found had no personal knowledge of plaintiff s birthplace, and (2) afforded only 24 25 26 27 28 3 In plaintiff s parents November 25, 1997, declaration, they stated that they registered plaintiff in Juarez, Mexico while they were on their way to visit my parents in Fresnillo, Zacatecas. They did not state therein, however, that they wanted any of their parents to treat plaintiff. [See AR at 565.] 9 1 some weight to plaintiff s family members who did have personal knowledge of plaintiff s 2 birthplace. 3 Under the first contradictory evaluation, the ALJ discussed three sets of evidence (as 4 relevant here) that he found tend[] to establish that [plaintiff] was not born in the U.S. [AR at 5 1191-92 (emphasis omitted).] First, the ALJ examined an April 2, 1964, San Diego City Schools 6 Application for Enrollment in a Special Program for the Handicapped (the special school services 7 application ), which listed plaintiff s birthplace as Ciudad Juarez, Chihuahua, Mexico. [AR at 1191 8 (citing AR at 1549-50).] The ALJ noted that the application was completed and signed by Martino 9 and Margarita Castro as claimant s guardians. The ALJ also noted that plaintiff represented in an 10 August 27, 2011, declaration that the Castros are now deceased [AR at 1553], and that plaintiff 11 told the ALJ after the June 30, 2011, hearing that he does not remember the Castros very well, 12 does not know how they came to be his guardians, and has no way of knowing how they had 13 knowledge of where he was born. [AR at 1191-92.] The ALJ stated that the application s 14 representation that plaintiff was born in Juarez is certainly consistent with his Mexican birth 15 certificate, suggesting that [the Castros] were either familiar with the document or were given this 16 information from someone knowledgeable about [plaintiff s] birth. The ALJ further noted that 17 [t]here is no evidence that guardians seeking special school services in 1964 would have any 18 incentive to fabricate [plaintiff s] place of birth or that there would be any benefit in asserting that 19 he was a Mexican national, as opposed to an American citizen. The ALJ therefore afforded the 20 special school services application some weight ... to the extent that the statements significantly 21 detract from his argument that those close to him have always known that he was born in the 22 United States. [AR at 1192.] 23 Second, the ALJ discussed two San Diego Unified School District ( SDUSD ) records, 24 dated April 29, 1964, and September 13, 1965, respectively, the first of which lists plaintiff s 25 birthplace as Juarez, Mexico [AR at 569], and the second of which lists plaintiff s birthplace as El 26 Paso, Texas. [AR at 566.] In the second SDUSD record, based on the fact that the words El 27 Paso, Texas were less faded and in a different font than the rest of the text, and on the fact that 28 10 1 a May 7, 1998, statement from the principal of plaintiff s former school stated that [plaintiff s] place 2 of birth on his original school record was Juarez[,] Mexico [AR at 578], the ALJ found that the 3 record was likely altered to change [plaintiff s] place of birth from Mexico to the United States. 4 4 He therefore afforded both records some weight to the extent that they purport to establish that 5 [plaintiff] was born in Mexico. [AR at 1192.] 6 Third, the ALJ discussed two applications to obtain a Social Security number for plaintiff -- 7 dated April 22, 1965, and April 5, 1968, respectively -- that listed plaintiff s birthplace as Juarez, 8 Mexico. [AR at 1191-92 (citing AR at 1382-83).] The ALJ noted that the mailing address on the 9 1965 application matched a mailing address on the September 13, 1965, SDUSD school record; 10 that the 1968 application reflected a mailing address that plaintiff testified was his sister s address; 11 that plaintiff s date of birth was correctly listed on both applications; and that plaintiff testified his 12 parents names were correct as listed on the applications. [AR at 1191.] The ALJ further noted 13 that although both applications bear plaintiff s signature, plaintiff testified that he did not sign the 14 applications, and upon being questioned by the ALJ after the hearing, stated that he did not have 15 any independent recollection of the applications and did not know whether the Castros 16 completed them. [AR at 1191-92.] Based on the matching addresses, and the correct information 17 concerning plaintiff s parents names and his date of birth, the ALJ found it likely that whoever 18 submitted the applications had significant familiarity with [plaintiff] and his family, and therefore 19 afforded the applications some weight. [AR at 1191.] 20 The first inconsistency in the ALJ s overall evaluation of the evidence is that the ALJ gave 21 no weight to statements that plaintiff was born in El Paso offered by plaintiff s sister Rosa, his 22 brother-in-law Charles Marmolejo, and his uncle Juan Galvan Castanon, because the ALJ found 23 that these statements were merely hearsay, but simultaneously gave some weight to 24 documents indicating that plaintiff was born in Juarez when there is no evidence that those 25 statements were not also hearsay. [AR at 1191-92 (emphasis added).] Specifically, in rejecting 26 27 28 4 The ALJ accept[ed] [plaintiff s] testimony that he did not alter the record. [AR at 1192 (citing AR at 1583).] 11 1 Rosa s statement in a 1997 declaration that plaintiff was born in El Paso, the ALJ explained that 2 because plaintiff testified that Rosa was born in September 1947, scarcely one year before 3 [plaintiff s] birth in November 1948[,] [the ALJ] therefore conclude[d] that Rosa had no independent 4 memory of the events surrounding the pertinent trip and was simply reiterating hearsay from family 5 anecdotes in her affidavit. [AR at 1188 (citing AR at 563-64).] Similarly, in apparently assigning 6 no weight to Marmolejo s and Castanon s declarations also stating that plaintiff was born in El 7 Paso, the ALJ stated, these statements are also hearsay as there is no evidence that either 8 person has personal knowledge of [plaintiff s] exact birthplace and can only offer their beliefs 9 based on family anecdotes. [AR at 1188-89 (citing AR at 624-31, 669).] However, the ALJ gave 10 some weight to the birthplace indicated on the special school services application completed by 11 the Castros based on his conclusion that they were either familiar with the document or were 12 given [the information that plaintiff was born in Juarez] from someone knowledgeable about 13 [plaintiff s] birth, despite the fact that any statement by the Castros based on information from 14 someone knowledgeable about [plaintiff s] birth would also be hearsay. Likewise, the ALJ gave 15 some weight to the place of birth reflected on the Social Security number applications because 16 he found it likely that whoever submitted the applications had significant familiarity with [plaintiff] 17 and his family, and also assigned some weight to the place of birth reflected on the 1964 18 SDUSD record and the original 1965 SDUSD record (per the school principal), but failed to make 19 any findings as to who completed the applications or was the source of the information on the 20 school records.5 Thus, there is no indication in the record that the statements concerning plaintiff s 21 birthplace in those applications and those records, even if they originated from individuals who 22 had significant familiarity with [plaintiff] and his family, would not also have been hearsay.6 The 23 24 5 25 26 27 28 As noted supra, the ALJ found that the 1965 record was likely altered to change [plaintiff s] place of birth from Mexico to the United States. [AR at 1192.] 6 The Court notes that whether the 1965 SDUSD record was in fact altered does not change this analysis. That the 1965 SDUSD record (according to the school principal) may have originally reflected Juarez, Mexico as plaintiff s place of birth does not establish that such information was provided to the school by someone with personal knowledge of plaintiff s birthplace. 12 1 ALJ s inconsistent treatment of this evidence renders his findings with regard to this evidence 2 unsupported by substantial evidence. 3 The second inconsistency in the ALJ s evaluation of the evidence is that while he gave 4 some weight to the special school services application, the 1964 SDUSD record, and the Social 5 Security number applications -- which he did not find were based on personal knowledge -- he 6 assigned the same amount of weight to the statements from plaintiff s parents and his sister Alicia 7 that plaintiff was born in El Paso, which the ALJ acknowledged were based on personal 8 knowledge. In discussing the evidence tending to establish that [plaintiff] was born in the U.S., 9 the ALJ stated that out of all the statements submitted by plaintiff s family members and third 10 parties, only those statements from his parents and (possibly) his then-5[-and-]1/2[-]year[-]old 11 sister Alicia could have been based on personal knowledge. [AR at 1189.] The ALJ did not 12 provide any reason to give those statements no more than some weight, 7 particularly in light of 13 the fact that the ALJ assigned the same amount of weight to much of the evidence that he 14 assigned any weight at all, and in light of the ALJ s acknowledgment that out of all the evidence 15 submitted in this case, only the statements of plaintiff s parents and possibly his sister Alicia were 16 based on personal knowledge. [See AR at 1188.] The ALJ s treatment of the evidence in this 17 regard also lacks support by substantial evidence. 18 3. The ALJ s Improper Discounting of Other Evidence 19 The ALJ s inconsistent treatment of the hearsay evidence in the record undermines his 20 evaluation of other evidence in the record, including evidence explaining the existence of plaintiff s 21 Mexican birth certificate, and a birth certificate for plaintiff issued by the state of Texas. 22 First, with respect to plaintiff s Mexican birth certificate, plaintiff s mother and Alicia 23 explained in separate declarations that they had to register plaintiff with the Mexican Civil 24 Registration Office by obtaining a ticket of registration at the border in order to travel into Mexico 25 with plaintiff in 1949. [AR at 542-53, 632.] In addition, in an August 13, 2002, letter, the Acting 26 27 28 7 As discussed supra, the sole reason offered by the ALJ to discount plaintiff s parents credibility was insufficient. 13 1 General Consul of Mexico stated that an affidavit submitted by plaintiff s mother was strongly 2 consider[ed] [by him to be] truthful, according to [the] experience that [the Consulate] [has] had 3 in the past in other similar cases. [AR at 680-81.] Specifically, the General Consul stated that 4 when Mexicans and their children born in the U.S. traveled back for some reason to our Country, 5 and they found themselves in need to have access to [h]ealth [s]ervices ... , they were required 6 to show their Mexican birth certificate ... ; therefore the only alternative left to make things easier 7 was to register their U.S.[-]born children in Mexico, as [if] they were born there. [AR at 680.] 8 In his decision, the ALJ stated that [plaintiff s] family and the Mexican General Consul have 9 provided a reasonable explanation for why [plaintiff s Mexican birth certificate] may have been 10 created even if [plaintiff] was born in the United States, but nevertheless concluded that the 11 Mexican birth certificate is probative evidence tending to establish that [plaintiff] was actually born 12 in Mexico because Juarez is listed as [plaintiff s] actual birthplace in other documents, including 13 the two applications for a Social Security number, his school records and the statement of his 14 guardians, the Castros. [AR at 1192-93.] 15 As discussed supra, there is no indication that the statements concerning plaintiff s 16 birthplace in the two Social Security number applications, plaintiff s 1964 SDUSD record and his 17 1965 SDUSD record in its original form (according to the school principal), and the special school 18 services application, are not hearsay. As such, the ALJ did not properly rely on them to offset his 19 finding that plaintiff s family and the Mexican General Consul gave a reasonable explanation for 20 why plaintiff s Mexican birth certificate may have been created. The ALJ therefore gave no 21 legally adequate reason to conclude that plaintiff s Mexican birth certificate is probative evidence 22 tending to establish that [plaintiff] was actually born in Mexico. [AR at 1192.] 23 Second, the ALJ assigned minimal weight to a birth certificate issued by the State of 24 Texas on May 23, 1996 -- which was initially issued with an addendum indicating that the State 25 Registrar had received information (i.e., a copy of plaintiff s Mexican birth certificate) contradicting 26 the information shown on the birth certificate. [AR at 1189 (citing AR at 557, 1108-14).] The ALJ 27 further assigned minimal weight to an October 9, 2006, Texas Hearing Examiner Order ordering 28 14 1 that the addendum be removed because the conflicting information received by the State 2 Registrar concerning [plaintiff s Texas birth] certificate was rebutted. [AR at 1189 (citing AR at 3 1108-14).] The only reason provided by the ALJ for these weight assignments was that: the 4 record strongly suggests that this Examiner did not review all of the evidence before me which 5 suggests that [plaintiff] was, in fact, born in Mexico. [AR at 1189.] In the October 9, 2006, order, 6 the hearing examiner discussed plaintiff s parents 1995 affidavit, plaintiff s mother s 1998 7 declaration, an affidavit from plaintiff s sister Alicia, and an affidavit from Castanon -- plaintiff s 8 uncle. [AR at 1110-11.] The evidence not discussed by the hearing examiner that the ALJ found 9 tends to establish that plaintiff was born in Mexico consisted only of: the two Social Security 10 number applications, the two SDUSD records, and the special school services application. 11 [Compare AR at 1191-93 with AR at 1109-12.] Because there is no indication that the statements 12 contained therein concerning plaintiff s birthplace were not hearsay, the ALJ s rejection of plaintiff s 13 Texas birth certificate on the basis that the hearing examiner did not consider that evidence is not 14 supported by substantial evidence. 15 4. Conclusion 16 For the reasons above, substantial evidence does not support the ALJ s conclusion that 17 [t]he evidence is, at best, equivocal as to the exact location of [plaintiff s] birthplace and that 18 plaintiff failed to prove by a preponderance of the evidence that he was born in the United States. 19 See Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258. 20 21 V. 22 REMAND FOR AWARD OF BENEFITS 23 The Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 24 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where there are outstanding 25 issues that must be resolved before a determination can be made, and it is not clear from the 26 record that the ALJ would be required to find plaintiff disabled if all the evidence were properly 27 evaluated, remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 593-96 (9th Cir. 28 15 1 2004). [W]here the record has been developed fully and further administrative proceedings would 2 serve no useful purpose, the district court should remand for an immediate award of benefits. 3 Benecke, 379 F.3d at 593. Specifically: 4 the district court should credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 5 6 7 8 Id. 9 As discussed supra, the ALJ failed to provide any legally sufficient reason to discredit 10 plaintiff s parents statements that plaintiff was born in El Paso, Texas. When those statements 11 are credited as true, there is no outstanding issue that remains to be resolved before determining 12 that plaintiff is entitled to benefits. The Commissioner has already thrice found that plaintiff is 13 disabled. [See AR at 19-23, 519, 1227-41.] The ALJ s November 15, 2011, decision stated that 14 the only issue before the ALJ was whether [plaintiff] is a United States citizen [AR at 1187], which 15 would clearly entitle him to SSI payments under 20 C.F.R. § 416.202. Thus, it is proper to credit 16 as true plaintiff s parents statements that plaintiff was born in El Paso, Texas, and to remand this 17 case for an immediate award of benefits. See Benecke, 379 F.3d at 596 ( [b]ecause there is no 18 remaining issue that must be resolved and it is clear from the record that Benecke is entitled to 19 disability benefits, the district court should have remanded for the award of benefits). 20 The Court notes that while this is not a case in which plaintiff s parents statements concern 21 his subjective symptoms and ability to work (see, e.g., Smolen, 80 F.3d at 1288-89, 1292), the 22 policy reasons underlying the credit-as-true rule are nevertheless applicable here. [T]he purpose 23 of the credit-as-true rule is to discourage ALJs from reaching a conclusion about a claimant s 24 status first, and then attempting to justify it by ignoring any evidence in the record that suggests 25 an opposite result. Vasquez v. Astrue, 572 F.3d 586, 594 (9th Cir. 2008, as amended July 8, 26 2009). In addition, where the record establishes that a claimant is entitled to benefits, [a]llowing 27 the Commissioner to decide the issue again would create an unfair heads we win; tails, let s play 28 16 1 again system of disability benefits adjudication. See Benecke, 379 F.3d at 595. Finally, 2 applicants for disability benefits often suffer from painful and debilitating conditions, as well as 3 severe economic hardship, and thus [d]elaying the payment of benefits by requiring multiple 4 administrative proceedings that are duplicative and unnecessary only serves to cause the 5 applicant further damage -- financial, medical, and emotional. Varney v. Sec y of Health & Human 6 Servs. (Varney II), 859 F.2d 1396, 1401 (9th Cir. 1988). Here, plaintiff has already been found by 7 the Commissioner -- three times -- to be disabled, and the issue in question for the last 20 years 8 has been whether plaintiff is entitled to SSI payments by virtue of being a United States citizen. 9 With respect to this application alone, the Commissioner has had five opportunities to render a 10 determination on this issue, and has held five hearings to that end. The fifth ALJ still failed to 11 render a decision supported by substantial evidence. Thus, the Court finds that the policy 12 rationale underlying the credit-as-true rule warrants a remand for the immediate payment of 13 benefits in this case. See, e.g., Benecke, 379 F.3d at 595 ( Requiring remand for further 14 proceedings any time the vocational expert did not answer a hypothetical question addressing the 15 precise limitations established by improperly discredited testimony would contribute to waste and 16 delay and would provide no incentive to the ALJ to fulfill her obligation to develop the record. ). 17 / 18 / 19 / 20 / 21 / 22 / 23 / 24 / 25 / 26 / 27 / 28 17 1 VI. 2 CONCLUSION 3 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff s request for the award of benefits 4 is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to 5 defendant for the award of benefits and any other action consistent with this Memorandum 6 Opinion. 7 8 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 9 10 DATED: March 20, 2013 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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