Michael Kitayama v. Michael J. Astrue, No. 2:2008cv07696 - Document 17 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL KITAYAMA, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 08-07696 (RZ) MEMORANDUM OPINION AND ORDER 17 Giving Plaintiff Michael Kitayama the benefit of the doubt, the Administrative 18 Law Judge found that Plaintiff had severe impairments of hypertension, renal disease and 19 low back pain. [AR 13] He noted that Plaintiff had provided no records documenting 20 treatment for any other physical or mental impairments, and had not been diagnosed with 21 any functionally restrictive physical or mental impairments. [Id.] After conducting the 22 familiar sequential evaluation, the Administrative Law Judge found that Plaintiff could 23 perform his past relevant work as a printer, and therefore was not disabled. 24 In this Court, Plaintiff asserts that he has a disabling mental impairment. The 25 support for that assertion is said to come from an exhibit that Plaintiff attaches to his 26 Memorandum in Support of Complaint filed in this Court. That exhibit is a copy of a 27 report from the Friedman Psychiatric Medical Group. With this report forming the factual 28 basis for his claims of error in this Court, Plaintiff argues that the Administrative Law 1 Judge did not sustain his obligation to develop the record, that he improperly found a 2 residual functional capacity which allowed Plaintiff to return to his past relevant work, that 3 he improperly found Plaintiff not credible, and that he improperly relied on the vocational 4 expert s testimony. 5 Plaintiff first asserts that the Administrative Law Judge agreed to hold the 6 record open indefinitely for later submission of reports of anticipated upcoming 7 neuropsychological evaluations through the Workers Compensation case. (AR 22, 27). 8 Plaintiff s Memorandum in Support of Complaint 2:22-25. The cited portions of the 9 Administrative Record say nothing of the sort. Plaintiff seems to acknowledge this, for 10 then Plaintiff says that [t]his is not reflected in the record, as the ALJ went off the record 11 before stating his intentions. (See AR 31). Plaintiff s Memorandum 2:25-26. The 12 Administrative Record does in fact say that the Administrative Law Judge went off the 13 record after testimony had concluded, but it does not say that doing so was for the purpose 14 of holding the record open indefinitely, or for any period. Nor is there anywhere else 15 where the Administrative Law Judge committed to hold the record open for an indefinite 16 period of time, a situation which would be quite unusual; there is no purpose in holding a 17 hearing if a record is held open indefinitely. An obligation to develop the record further 18 arises only when the record is ambiguous or insufficient to allow an decision to be made. 19 Mayes v. Massanari, 276 F.3d 453,459-60 (9th Cir. 2001) (citing Tonapetyan v. Halter, 20 242 F.3d 1144, 1150 (9th Cir. 2001). No such obligation arose here. 21 Nor can this Court develop the record itself; this Court, of course, cannot rule 22 on the basis of the exhibit Plaintiff presents here, but can only review the matters 23 adjudicated by the Commissioner. Ellis v. Bowen, 820 F.2d 682, 684 (5th Cir. 1987) ( The 24 role of the courts is wholly appellate. We review on the record made before the ALJ. The 25 courts may not take new evidence . . . . ) Under certain circumstances, however, the Court 26 can remand a matter to the Commissioner for the purpose of considering new evidence. 27 Plaintiff has not exactly moved for such a remand, but the Court will interpret his 28 arguments as seeking such a remand. -2- 1 The sixth sentence of 42 U.S.C. § 405(g) allows a remand only upon a 2 showing that there is new evidence which is material and that there is good cause for the 3 failure to incorporate such evidence into the record in a prior proceeding . . . . 42 U.S.C. 4 § 405(g). Even assuming the exhibit is material, there has been no showing of good cause 5 for failure to incorporate the evidence into the record here. The Administrative Law 6 Judge s decision here was dated May 15, 2007. But the exhibit refers to an examination 7 which took place a month earlier, on April 10, 2007. Plaintiff, who was represented by 8 counsel at the hearing, points the Court to nothing in the record where he advised the 9 Administrative Law Judge that the examination had taken place. The report came out in 10 August 2007, after the Administrative Law Judge s decision, but that was still before the 11 Appeals Council had made its decision on Plaintiff s application for review. The 12 regulations allow the submission of new and material evidence to the Appeals Council, see 13 20 C.F.R. § 404.970(b), but Plaintiff points to nowhere in the record where he submitted 14 this report to the Appeals Council. Thus, although Plaintiff stated in his May 18, 2007 15 request to administratively review the decision that the ALJ was to have supplemental 16 hearing Decision based on incomplete evidence [AR 8], he apparently did not thereafter 17 seek to have the Appeals Council consider the report. Plaintiff did request the tapes of the 18 hearing, and the Appeals Council on January 18, 2008 sent them, along with stating that 19 it would not act for another 25 days. [AR 6] So, five months after the report, the Appeals 20 Council still had the matter as an open file, and told Plaintiff that it would not decide the 21 matter for yet another twenty-five days, at least. Still, evidently, Plaintiff did not send in 22 the report; accordingly, the Appeals Council s denial of review makes no mention of any 23 additional material submitted. [AR 3] 24 In short, even if the report could be considered new evidence, and even if it 25 could be considered material evidence both of which also would be prerequisites for a 26 Sentence Six remand there is no good cause for failing to incorporate it into the 27 proceedings before the Appeals Council. Anderson v. Bowen, 868 F.2d 921, 928 (7th Cir. 28 1989); cf. Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 511 (9th Cir. -3- 1 1987); Bass v. McMahon, 499 F.3d 506, 513 (6th Cir. 2007); Mayes v. Massanari, 276 2 F.3d 453, 463 (9th Cir. 2001). This is important because, in the Ninth Circuit at least, the 3 law provides that the administrative record consists of matters presented not only to the 4 administrative law judge, but also to the Appeals Council, Ramirez v. Shalala, 8 F.3d 5 1449, 1451-53 (9th Cir. 1993), and it is that entire record which a Court reviews when a 6 claimant brings the controversy to federal court. Id. 7 Plaintiff s other arguments, concerning the residual functional capacity, the 8 determination as to his credibility, and the reliance on the vocational expert s testimony, 9 all depend upon whether the proffered new exhibit is before the Court. They have no 10 independent persuasiveness. Since the exhibit is not before the Court, and Plaintiff has not 11 satisfied the statutory requirement for remand to consider additional evidence, the decision 12 of the Commissioner is affirmed. 13 14 DATED: July 14, 2009 15 16 17 18 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 -4-
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