Franklin v. Commissioner of Social Security Administration

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
James Franklin, III,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-25-00480-TUC-JCH (JEM)
REPORT AND RECOMMENDATION
Plaintiff James Donald Franklin, III (“Franklin”), seeks judicial review of a final
decision by the Commissioner of the Social Security Administration (“Commissioner”).
(Doc. 1.) This matter, on referral to the undersigned United States Magistrate Judge for
Report and Recommendation, is ripe for determination. (Doc.11, 17, 19, 20.) As more fully
set forth below, the undersigned recommends that the district court reverse the ALJ’s
decision and remand to the Commissioner for further proceedings.
BACKGROUND
Procedural History
On October 27, 2022, Franklin filed a Title XVI application for disability benefits
under the Social Security Act alleging disability beginning March 13, 1998. (AR 400-409.)
On March 3, 2023, Franklin’s application was denied initially and on October 3, 2023, it
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was denied on reconsideration. (AR 252-256 (disability determination at the initial level);
AR 257-268 (disability determination at the reconsideration level).)
On June 7, 2024, at a telephonic administrative hearing before Administrative Law
Judge (“ALJ”) Tin Tin Chen was held. (AR 231-251.) On November 7, 2024, a
supplemental administrative hearing was held. (AR 221-230.)
On December 16, 2024, the ALJ issued a non-disability decision. (AR 10-21.) On
August 5, 2025, the Appeals Counsel denied Franklin’s request for review. (AR 1-6.)
The ALJ’s decision is the final decision of the Commissioner and the district court
has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
The ALJ’s Decision
The ALJ determined Franklin had not engaged in substantial gainful activity since
October 27, 2022, the application date. (AR 12.) The ALJ determined that Franklin suffers
from the severe impairments of autism spectrum disorder and unspecified anxiety disorder.
Id. The ALJ determined Franklin does not have an impairment or a combination of
impairments that meets or medically equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1. Id. The ALJ determined Franklin’s residual
functional capacity (“RFC”) as the ability:
to perform a full range of work at all exertional levels with the following
non-exertional limitations: [Franklin] can perform simple, routine, repetitive
tasks primarily with objects rather than people, have occasional, superficial
interaction with the public, frequent interactions with coworkers and
supervisors, and less than occasional changes to setting and procedures.
(AR 14.)
Franklin has no past relevant work. (AR 19.) Considering Franklin’s age, education,
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work experience and RFC, the ALJ found that Franklin can make a successful adjustment
to other work that exists in significant numbers in the national economy such as hand
packer, store laborer and dishwasher. (AR 19-20.) Accordingly, the ALJ found that
Franklin has not been under a disability from the date his application was filed through the
date of the ALJ’s decision. (AR 20.)
Relevant Factual Background
Franklin was born in 1998 and was 25 years old on the date he filed his application.
(AR 400.) As found by the ALJ, Franklin’s primary impairments are autism spectrum
disorder and an anxiety disorder. (AR 12.) However, he has also been diagnosed with
“other unspecified neurodevelopmental disorder,” “unspecified attention deficit
hyperactivity disorder (ADHD),” “unspecified communication disorder,” generalized
anxiety disorder, and “language disorder.” (AR 685, 701.)
He exhibits below average abilities in verbal intelligence and generalized verbal
processing. (AR 637, 669, 673, 685, 702.) He has difficulty exhibiting non-verbal
communication skills and transitioning between even simple tasks. (AR 670, 677.) He
engages slowly, needing both frequent clarification and patience for formulation of
response. (AR 670, 678.) He is estimated to have a full-scale intelligence quotient in the
borderline to low average range of cognitive capacity. (AR 684, 702.) Franklin was able to
complete high school with the support of an individualized education plan that included a
modified curriculum and accommodations. See AR 630-654 (Flowing Wells Unified
School District records).
On August 24, 2018, standardized testing conducted by Joseph Burridge
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(“Burridge”), CVE, documented limited abilities, with below average scores in work
reading, spelling, sentence comprehension, and mathematics. (AR 661.) Burridge noted
poor coordination and dexterity, commenting that Franklin “experienced difficulty
utilizing his dexterity skills to manipulate small intricate pieces.” Id. He encountered
further problems with linear measuring, line perception, change making, collating and
multiple step inspection. Id. Franklin was recorded as being able to understand, remember,
and carry out basic job instructions “adequately” and judged to have “satisfactory” capacity
to sustain gainful employment in a routine, unskilled, low interpersonal work setting where
he would not be required to make more than simple judgments or work-related decisions.
(AR 662.) Franklin’s ability to handle financial affairs appropriately is estimated as “poor.”
Id. Franklin’s speed was consistently calculated to be below competitive entry level across
all conducted work sampling and his quality was also often below average. (AR 664-666.)
On July 13, 2023, Kacey Chandler, Ph.D., NCSP, through the Tucson Alliance for
Autism conducted a psychological evaluation on Franklin. (AR 668-675.) Dr. Chandler
noted difficulties with word recall and the need for clarification even when given simple
directions. (AR 670.) Franklin’s speech was recorded as “grammatically intact” but
“halting and irregular in rhythm,” and he required direct, specific, ongoing probing or
prompting to give even minimal response regarding his thoughts, feelings, or experiences.
Id. He engaged in very limited conversation with poorly regulated eye contact. Id. He
showed “marked signs of anxiety.” (AR 671.) The diagnostic impression contained in the
resulting 2024 report was “Autism Spectrum Disorder, Level 2, requiring substantial
support” due to “marked deficits in verbal and nonverbal social communications.” (AR
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673.) Impairments were said to be apparent even with supports in place, requiring “support
to function day-to-day.” (AR 673-674.) Dr. Chandler found substantial functional
limitations in activities of daily living and living independently. (AR 674.)
On August 8, 2023, MaryAnne Belton, Psy.D., a consultative examiner engaged by
the Administration, conducted a psychological evaluation on Franklin. (AR 676-682.) A
diagnostic impression was deferred with the recommendation that an intelligence
assessment be performed to provide a cognitive skills baseline before providing a
prognosis. (AR 680.) However, Dr. Belton recorded observations of Franklin’s difficulty
with socioemotional reciprocity and interaction, slowed engagement, need for clarification
or rephrasing of most questions, and the noted possibility of intellectual delays. (AR 679-
680.)
On September 13, 2023, Jill M. Plevell, Ph.D., conducted Franklin’s third
psychological exam. (AR 683-689). The Wechsler Adult Intelligence Scale, Fourth Edition
(WAIS-IV), was administered, resulting in a FSIQ1 score of 79, which falls within the
borderline range of intelligence. (AR 684.) Dr. Plevell concluded that appropriate
diagnoses included other unspecified neurodevelopmental disorder (generalized verbal
processing), unspecified ADHD, unspecified communication disorder, and generalized
anxiety disorder. (AR 685.) Difficulty with processing speed, verbal reasoning and verbal
memory were all indicated. Id.
On July 31, 2024, Machelle Martinez, Ph.D., conducted Franklin’s fourth
1 Full Scale Intelligence Quotient
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psychological consultative exam. (AR 698-707.) Dr. Martinez indicated that Franklin is
mildly limited in his ability to follow simple instructions, make simple work-related
decisions, engage in social interaction, and respond appropriately to usual work situations
or changes in a routine work setting. (AR 704-705.)
ISSUE ON REVIEW
Franklin argues the Administration erred in failing to consider 194 pages of
vocational rehabilitation (VR) records that are relevant and material to his ability to engage
in competitive full-time gainful employment. (Doc. 17 at p. 10; Doc. 20 at p. 6.) The
Commissioner argues against the claim of error. (Doc. 19.) As more fully explained below,
this Court agrees with Franklin and recommends that the district court remand this matter
to the Commissioner for further proceedings.
FIVE-STEP SEQUENTIAL EVALUATION PROCESS
The Commissioner employs a five-step sequential process to evaluate claims. 20
C.F.R. § 404.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To
establish disability the claimant bears the burden of showing: (1) s/he is not working;
(2) s/he has a severe physical or mental impairment; (3) the impairment meets or equals
the requirements of a listed impairment; and (4) the RFC precludes the performance of past
work. 20 C.F.R. § 404.1520(a)(4). At step five, the burden shifts to the Commissioner to
show that the claimant has the RFC to perform other work that exists in substantial numbers
in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the
Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in
the five-step process, the ALJ does not proceed to the next step. 20 C.F.R.
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§ 404.1520(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical
testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings
of the Commissioner are meant to be conclusive if supported by substantial evidence. 42
U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a
preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v.
Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to
deny benefits only “when the ALJ’s findings are based on legal error or are not supported
by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033,
1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve
conflicts in the evidence, and if the evidence can support either outcome, the court may not
substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson
v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
1190, 1198 (9th Cir. 2004). The Commissioner’s decision, however, “cannot be affirmed
simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143
F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.
1989)). Reviewing courts must consider the evidence that supports as well as detracts from
the Commissioner’s conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
A claimant is "disabled" for the purpose of receiving benefits if she is unable to
engage in any substantial gainful activity due to an impairment which has lasted, or is
expected to last, for a continuous period of at least twelve months. 42 U.S.C. §
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423(d)(1)(A); 20 C.F.R. § 404.1505(a). "The claimant bears the burden of establishing a
prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert.
denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).
ANALYSIS
The VR Records
On July 3, 2024, Franklin completed an intake interview for his VR application.
(AR 46.) He was deemed eligible for services and scheduled for work adjustment training
(“WAT”) through Odyssey Services Corp. to determine whether he could acquire the skills
necessary to engage in employment. (AR 33.) The WAT took place October 23, 2024,
through November 14, 2024. (AR 200.)
On November 19, 2024, a VR record documents a call from Franklin’s “job
developer,” Deanna Bellinger (“Bellinger”). (AR 32.) Bellinger is recorded as stating that
Franklin “is not doing well with WAT” after four sessions for 12 hours. Id. Franklin is
recorded as being able “to perform basic tasks at the most superficial level” and “that even
with direct 1:1 support, he struggles.” Id. Franklin is recorded as primarily nonverbal and
socially impaired. Id. Franklin is recorded as “not getting it” and “not capable” of
benefiting from WAT services. Id.
In her final report, Bellinger observed, inter alia, that Franklin failed to demonstrate
the ability to work without 1:1 supervision and required considerable assistance with tasks.
(AR 200.) He had considerable difficulty responding to simple questions, whether direct
or open-ended. Id. His verbal responses were delayed even after several repetitions of the
same question, and physical mannerisms suggested difficulty with comprehension and/or
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formulating a response. Id. He was able to follow one-step instructions approximately 50%
of the time, if they were also demonstrated to him. Id. He was unable to independently
initiate or follow through simple processes without ongoing step-by-step assistance and
direction. Id. Bellenger noted that, “[Franklin] seemed to be trying his best and was always
polite and respectful” but simply unable to do things on his own most of the time. Id.
Bellinger recommended “additional services such as habilitation (sic), an enclave work
program, and other services to further develop communication and other skills.” (AR 201.)
On September 11, 2024, the complete VR record was requested by Franklin’s
representative. (AR 622.) On October 24, 2024, a notice of outstanding evidence was
submitted to the Administration (two weeks before the November 7, 2024, supplemental
administrative hearing). Id.
On November 19, 2024, VR counselor Xandra Wolfe (“Wolfe”) sent Bellinger’s
report to Franklin and his father via email stating, in part, “[a]s his diagnosis suggests, his
WAT services are severely impacted negatively” and that his “impairments are apparent
with support in place.” (AR 202.) Wolfe reasoned that “the issues marked in the
Psychological evaluation of 07/13/2023 (below) are consistent with what [Franklin] is
experiencing in the work environment.” Id.
On December 3, 2024, Franklin’s counsel obtained Franklin’s full and final VR
records. (AR 27.) On December 16, 2024, the ALJ issued an unfavorable decision which
neither addresses nor acknowledges the VR records. (AR 10-21.)
On February 3, 2025, Franklin submitted the VR records to the Appeals Council.
(AR 2, 27-220.) The Appeals Council acknowledged Franklin’s submission of the VR
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records. (AR 2.) The Appeals Council stated that they looked at the VR records and found
the records “do[] not show a reasonable probability that [they] would change the outcome
of the decision.” Id. The Appeals Council did not “exhibit” the VR records. Id.
Receiving Additional Evidence
Section 405(g), Title 42, United States Code, “authorizes district courts to review
administrative decisions in Social Security benefit cases.” Rocha v. Astrue, No. CV 10-
526-TUC-BPV, 2012 WL 748260, at *3 (D. Ariz. Mar. 7, 2012) (quoting Akopyan v.
Barnhart, 296 F.3d 852, 854 (9th Cir.2002)). Sentence six of § 405(g) provides that a court
may “at any time order additional evidence to be taken before the Commissioner of Social
Security, but only upon a showing that there is new evidence which is material and that
there is good cause for the failure to incorporate such evidence into the record in a prior
proceeding.” See 42 U.S.C. § 405(g) (sentence six).
Material
To be material, the proffered evidence “must bear directly and substantially on the
matter in dispute.” Burton v. Heckler, 724 F.2d 1415, 1417–18 (9th Cir. 1984). The
evidence must be “relevant, material, probative, and present a reasonable possibility of
changing the outcome of the [Commissioner’s] determination.” Id. The evidence must also
relate to the period on or before the date of the hearing decision. See 20 C.F.R. §
404.970(a)(5).
Here, the VR records bear directly and substantially on whether Franklin can engage
in substantial gainful employment. As laid out above, in her final report Bellinger recorded,
inter alia, that Franklin failed to demonstrate the ability to work without 1:1 supervision
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and that he required considerable assistance with tasks. He had considerable difficulty
responding to simple questions, whether direct or open-ended. Bellinger recorded that
Franklin’s verbal responses were delayed even after several repetitions of the same
question, and physical mannerisms suggested difficulty with comprehension and/or
formulating a response. Franklin was able to follow one-step instructions only half of the
time and was able to do so only when the verbal instructions were also demonstrated to
him. He was unable to independently initiate or follow through simple processes without
ongoing step-by-step assistance and direction.
The ALJ contemplated considering Franklin’s VR records prior to issuing a
disability determination. At the first administrative hearing the following dialogue
occurred:
ALJ: You know, I’m really reluctant to declare this young man unable
to work without having some –
ATTY: The attempt.
ALJ: Since he is, since he doesn’t appear that he is receptive to being
with him, but I’m going to take a wild guess I guess voc-rehab is more
accessible in Tucson that it is in an area such as Stafford (sic). So, the
conclusion is ultimately that it’s not available in Stafford (sic) and for some
reason, that’s kind of a better choice.
ATTY: Yes, Your Honor.
ALJ: But since it is in the works I’m really inclined to see the outcome
of that because Mr. Franklin is a lovely person I enjoy talking to him. He has
a sweet demeanor, he’s very gentle and kind, I get the sense that he wants to
try to work. And I would, you know, it’s a real curse to be told you can’t
work if you can but, you know, it’s kind of like telling someone you’re
incapable of caring for yourself.
And you strike me as someone who can with perhaps the help and
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training do that very thing and you might want to and I think it would be a
terrible thing to prematurely take that from you. So, I’d like to recess. I’d like
some information from voc-rehab about what is happening perhaps you can
send me a letter with an update of what is exactly gone in voc-rehab and that
process.
* * *
ALJ: . . . And Counsel, you’re responsible for updating me about the
voc-rehab and getting the information from his father.
ATTY: Yes, Your Honor.
ALJ: All communications from voc-rehab in written form even, you
know, you might want to write a questionnaire for his voc-rehab counselor
to fill out.
(AR 246-249.) At the second administrative hearing, the ALJ was informed that the VR
process had begun but that a final evaluation had not been prepared as of the date of the
second administrative hearing. (AR 223.) The ALJ concluded the second administrative
hearing and issued her decision without the VR records. See AR 622 (October 24, 2024,
letter to ALJ from Mr. Franklin’s counsel’s office that Franklin’s VR records had been
requested on September 11, 2024 (nearly two months prior to the second administrative
hearing) and were anticipated at any time). Considering the foregoing, this Court finds that
the VR records are relevant, material, probative, and present a reasonable possibility of
changing the outcome of the Commissioner’s determination.
The Commissioner argues that the Appeals Council considered the VR records.
(Doc. 19 at p. 4.) This Court rejects the Commissioner’s argument. The Notice of Appeals
Council Action does not state that it “considered” the VR records. (AR 1-2.) Moreover, the
District Court for the District of Arizona has held that the Appeals Council did not
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“consider” evidence where the Appeals Council stated that it looked at evidence but did
not make it a part of the administrative record. See Rocha, 2012 WL 748260, at *4. Here,
the Notice of Appeals Council Action states that the Appeals Council did not “exhibit” the
VR records. (Doc. 2.) Indeed, the VR records, while included within the AR, are not listed
as an “Exhibit.” See Court Transcript Index. The Commissioner’s argument that the
Appeals Council “considered” the VR records is unsupported.
The Commissioner also argues that the ALJ and Franklin’s counsel “agreed the
correct avenue for the [VR] records was to file a subsequent claim, not to find disability
based on the record through the date of the decision in this case.” (Doc. 19 at p. 6.) The
Commissioner relies on a discussion between the ALJ and Franklin’s counsel at the
conclusion of the second administrative hearing wherein the ALJ states, “You heard what
I have to say I think we should give VR a try. And if it does not work out I think that would
be very compelling evidence for a subsequent claim.” (AR 229.) To which Franklin’s
counsel responded, “I agree.” (AR 230.) Considering the foregoing, the Commissioner
urges that the ALJ’s non-disability determination should be affirmed.
Accepting the Commissioner’s argument would sidestep Franklin’s appeal of the
Commissioner’s non-disability determination. This Court will not recommend that the
district court do such. Based upon what the ALJ stated at the first administrative hearing,
the record is clear that the ALJ wanted to consider the VR records before issuing a disability
decision in Franklin’s existing application and not in a subsequent application. This Court
finds that the ALJ should be given the opportunity to first consider the VR records in
determining Franklin’s existing application by way of remand.
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This determination comports with the directive that the ALJ in a social security case
has an independent “duty to fully and fairly develop the record and to assure that the
claimant’s interests are considered.” Smolen, 80 F.3d at 1288 (quoting Brown v. Heckler,
713 F.2d 441, 443 (9th Cir. 1983)). An ALJ’s finding that the record is inadequate to allow
for proper evaluation of the evidence triggers the ALJ’s duty to develop the record and an
ALJ can discharge her duty by, inter alia, continuing the hearing and keeping the record
open after the hearing to allow record supplementation. Smolen, 80 F.3d at 1288.
Additionally, claimants, such as Franklin, have a duty to disclose evidence at each level of
the administrative review process if the evidence relates to the period on or before the date
of the ALJ’s decision. See 20 C.F.R. § 404.1512(a)(1). Moreover, the ALJ is obligated to
consider an opinion of VR workers in determining whether a claimant retains the ability to
engage in substantial gainful employment. See Reimer v. Colvin, No. CV-13-08225-PCT-
GMS, 2014 WL 48266989, at *3 (D. Ariz. Sept. 29, 2014) (recognizing an ALJ is obligated
to consider VR records).
As set forth above, the ALJ determined that Franklin’s VR records are compelling
evidence in considering his claim. (AR 223, 229, 233, 235, 246-47.) While his claim was
pending, Franklin informed the ALJ that he was participating in VR and that his evaluation
was not yet complete. (AR 223.) The VR records were completed on December 3, 2024,
and the ALJ’s decision was issued on December 16, 2024, but failed to include any
discussion of the VR records. The Appeals Council was provided the VR records but failed
to consider or exhibit them. This Court finds that Franklin’s VR records have erroneously
not been considered by both the ALJ and the Appeals Council.
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Good Cause
Section 405(g), Title 42, of the United States Code, “also requires a finding of good
cause.” Burton, 724 F.2d at 1417. “The good cause requirement often is liberally applied,
where, as in the present case, there is no indication that a remand for consideration of new
evidence will result in prejudice to the [Commissioner].” Id. at 1417-18. The
Commissioner fails to identify any prejudice it may suffer if the district court remands this
matter for the ALJ’s consideration of the VR records. Indeed, the Commissioner does not
seriously dispute that good cause exists. (Doc. 19 at pp. 4-5.)
In sum, the Court finds that VR records are material and that good cause exists as
required for their consideration.
Remand Is Required
Because the ALJ did not consider the VR records, this Court finds that remand for
further administrative proceedings is required. See Daywitt v. Colvin, No. CV-15-02476-
PHX-BSB, 2017 WL 393601, at *4 (D. Ariz. Jan. 30, 2017) (remanding for ALJ to consider
additional evidence of medical treatment presented to the Appeals Council); Vahey v. Saul,
Case No. 18-00350-ACK-KJM, 2019 WL 3763436, at *11 (D. Hawai’i Aug. 9. 2019);
(concluding that further proceedings “would be useful to allow the ALJ to evaluate the
relevance and impact of the [p]ost-[d]ecision [r]ecords, if any.”); West v. Berryhill, Case
No. 18-cv-00092-DKW-RT, 2019 WL 362259, at *5 (recognizing that “[w]hen the
Appeals Council fails to consider additional evidence that satisfies the requirements of [20
C.F.R.] Section 404.970(b), remand to the ALJ is appropriate.”); Garrison, 759 F.3d at
1020; Smolen, 80 F.3d at 1292 (the court has discretion to remand for additional findings
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or for an award of benefits).
On remand the ALJ must consider the VR records, it may conduct a new hearing,
reassess Franklin’s RFC, reassess the five-step sequential evaluation process, and issue a
new decision.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the district court
REVERSE the decision of the ALJ and remand the matter to the Commissioner for further
administrative proceedings. Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party
may serve and file written objections within fourteen days of being served with a copy of
the Report and Recommendation. A party may respond to the other party’s objections
within fourteen days. No reply brief shall be filed on objections unless leave is granted by
the District Court. If objections are not timely filed, they may be deemed waived. If
objections are filed, the parties should use the following case number: 25-cv-00480-JCH.
Dated this 11th day of March, 2026.
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