Michael Benveniste v. Michael J. Astrue, No. 2:2010cv00133 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION and ORDER by Magistrate Judge Marc L. Goldman. The decision of the Social Security Commissioner is REVERSED and REMANDED for further proceedings consistent with this opinion. (db)
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Michael Benveniste v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 SOUTHERN DIVISION 9 10 MICHAEL BENVENISTE, 11 Plaintiff, 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-00133-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Michael Benveniste seeks judicial review of the 19 Social 20 disability insurance benefits (“DIB”). For the reasons stated 21 below, the Commissioner’s decision is reversed and this action is 22 remanded for further proceedings consistent with this opinion. Security Commissioner’s denial of his application for 23 24 25 I. Facts and Procedural Background Plaintiff was born on August 24, 1963. He has a college 26 education 27 (Administrative 28 application for DIB on June 2, 2006, alleging disability as of and has work Record experience (“AR”) 155, as 190.) a school Plaintiff teacher. filed an 1 Dockets.Justia.com 1 April 12, 2003, due to diabetes mellitus and affective mood 2 disorder. (AR 76, 130, 155.) 3 Plaintiff’s application was denied initially and upon 4 reconsideration. (AR 136-140, 143-147.) An administrative hearing 5 was held on July 31 2007, before Administrative Law Judge (“ALJ”) 6 John Tobin. Plaintiff, unrepresented by counsel, testified, as did 7 vocational expert Edwin G. Kurata. (AR 92-125.) On August 17, 2007, 8 ALJ Tobin issued an unfavorable decision. (AR 75-79.) The ALJ found 9 that Plaintiff had not engaged in substantial gainful activity 10 since the alleged onset date of April 12, 2003. (AR 78.) The ALJ 11 further found that Plaintiff suffered from the following severe 12 impairments: diabetes mellitus and depressive disorder, NOS. (Id.) 13 The ALJ then determined that Plaintiff’s impairments did not meet 14 the requirements of a listed impairment found in 20 C.F.R. Part 15 404, Subpart P, Appendix 1. (Id.) Plaintiff was deemed unable to 16 perform his past relevant work but the ALJ found that there were 17 jobs 18 perform, such as day worker, box binder, and bench inspector. (AR 19 78-79.) 20 disabled within the meaning of the Social Security Act. (Id.) that exist in Therefore, significant the ALJ numbers concluded that that Plaintiff Plaintiff could was not 21 Plaintiff then retained counsel who filed a request for review 22 by the Appeals Council. Between December 2007 and May 2009, counsel 23 submitted numerous additional medical reports in support of his 24 request for review. On November 13, 2009, the Appeals Council 25 denied the request for review. 26 Plaintiff commenced this action on January 8, 2010, and on 27 September 3, 2010, the parties filed a joint stipulation (“Joint 28 Stp.”) of disputed facts and issues. Plaintiff alleges: (1) the 2 1 Appeals Council erred by failing to remand based on the submission 2 of new evidence from Plaintiff’s treating physicians1 and (2) the 3 ALJ failed to properly evaluate Plaintiff’s subjective complaints. 4 (Joint Stp. 2-3.) Plaintiff asks the Court to reverse and order an 5 award of benefits, or in the alternative, remand for further 6 proceedings. (Joint Stp. 28.) The Commissioner requests that the 7 ALJ’s decision be affirmed. (Joint Stp. 28-29.) 8 After reviewing the parties’ respective contentions and the 9 record as a whole, the Court finds Plaintiff’s contention that 10 newly 11 meritorious 12 consistent with this opinion.2 obtained evidence and remands should this have matter been for considered further to be proceedings 13 14 15 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 16 Commissioner’s 17 decision must be upheld unless “the ALJ’s findings are based on 18 legal error or are not supported by substantial evidence in the 19 record as a whole.” Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 20 1999); 21 Substantial evidence means more than a scintilla, but less than a Parra decision v. Astrue, to deny 481 benefits. F.3d 742, 746 The Commissioner’s (9th Cir. 2007). 22 1 23 24 25 26 27 28 Plaintiff articulates this claim as one of a failure of the ALJ to properly evaluate the medical evidence of record, but the analysis focuses primarily on the new evidence (by various treating physicians) submitted for the first time to the Appeals Council. The Court construes this as a new evidence claim. 2 The Court will only address the issue of newly obtained evidence. However, as noted above, Plaintiff also contends that the ALJ made various other errors. The Court does not reach the remaining issue or decide whether this claim of error would independently warrant relief. 3 1 preponderance; it is evidence that a reasonable person might accept 2 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 3 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 4 466 5 substantial evidence supports a finding, the reviewing court “must 6 review the administrative record as a whole, weighing both the 7 evidence that supports and the evidence that detracts from the 8 Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 9 (9th Cir. 1996). “If the F.3d 880, 882 (9th Cir. evidence 2006)). can To support determine either whether affirming 10 or reversing the ALJ’s conclusion,” the court “may not substitute 11 its judgment for that of the ALJ.” Robbins, 466 F.3d at 882. 12 13 III. Remand Is Appropriate for the ALJ to Consider Newly Obtained 14 Evidence 15 Plaintiff contends that he presented new evidence regarding his 16 physical and mental impairments to the Appeals Council after the 17 hearing held on July 31, 2007 which changed the weight of the 18 evidence and requires remand for reconsideration. This new evidence 19 consists of a letter dated September 11, 2007 completed by Ron 20 Gallemore, M.D.; a Mental Impairment Questionnaire completed on 21 December 6, 2007 by Jan Merman, M.D.; records from Retina Vitreous 22 Associates dated September 11, 2007 to May 21, 2008; a June 11, 2008 23 report from True Sleep; a Mental Impairment Questionnaire dated 24 December 2007, supervised by David Feldman, M.D.; records dated May 25 8 to July 2, 2008, prepared by Nachman Brautbar, M.D.; and a record 26 dated May 5, 2009 from Quest Diagnostic. (AR 12-63.) These records 27 relate to Plaintiff’s visual impairments caused by his diabetes 28 mellitus and his mental impairments, including personality disorder 4 1 and depression. Plaintiff contends that these medical records 2 support a finding that his physical and mental impairments preclude 3 him from performing work in the national economy. (Joint Stp. 7.) 4 The Court has jurisdiction to remand the case to the 5 Commissioner for the consideration of new evidence, but “only upon 6 a showing that there is new evidence which is material and that 7 there is good cause for the failure to incorporate such evidence 8 into the record in a prior proceeding.” See 42 U.S.C. § 405(g) 9 (Sentence Six); Allen v. Secretary of Health & Human Servs., 726 10 F.2d 1470, 1473 (9th Cir. 1984). New evidence is material if (1) the 11 evidence bears “directly and substantially” on the matter in 12 dispute, and (2) there is a “reasonable possibility” that the new 13 evidence would have changed the outcome of the administrative 14 hearing. See Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001); 15 see also Booz v. Secretary of Health & Human Servs., 734 F.2d 1378, 16 1380 (9th Cir. 1984)(new evidence is material if there is a 17 reasonable possibility that it would have changed the outcome of the 18 ALJ’s determination). 19 In addition, evidence is new and material only where it relates 20 to the period on or before the date of the ALJ’s decision. See 20 21 C.F.R. § 404.970. However, “reports containing observations made 22 after the period of disability are relevant to assess the 23 [plaintiff’s] disability. It is obvious that medical reports are 24 inevitably rendered retrospectively and should not be disregarded 25 solely on that basis.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 26 1988); Kemp v. Weinberger, 522 F.2d 967, 969 (9th Cir. 1975). 27 // 28 Here, the new evidence submitted by Plaintiff bears directly 5 1 on the severity of Plaintiff’s physical and mental impairments prior 2 to the date of the administrative hearing, and there is a real 3 possibility 4 decision. that For such example, evidence the would Mental have changed Impairment the ALJ’s Questionnaires 5 completed by Dr. Merman on December 6, 2007 and by Dr. Feldman in 6 December 2007 provide evidence of the effect of Plaintiff’s mental 7 impairments on his ability to perform and complete work related 8 tasks. (AR 12-19, 39-42.) In addition, the letter written by Dr. 9 Gallemore on September 11, 2007 provides further evidence of the 10 severity of Plaintiff’s visual impairments. (AR 25-26.) 11 There is also good cause for Plaintiff’s failure to incorporate 12 this evidence into the record in the prior proceeding. First, much 13 of the additional evidence was not available prior to the date of 14 the ALJ’s decision on August 17, 2007. Further, Plaintiff was 15 unrepresented by counsel during the administrative hearing. It is 16 clear that proceeding pro se does not, without more, provide good 17 cause for failure to submit documents. See Allen, 726 F.2d at 1473. 18 However, to the extent that Plaintiff’s psychological problems, 19 which appear to include at least some difficulty in interacting with 20 others, prevented him from obtaining records or from hiring an 21 attorney, this would provide the requisite good cause. Indeed, where 22 the claimant is not represented by counsel, the ALJ has a heightened 23 duty to assist the claimant in obtaining relevant evidence. See 24 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (“When the 25 claimant is unrepresented, ... the ALJ must be especially diligent 26 in exploring for all the relevant facts.”) (citing Cox v. Califano, 27 587 F.2d 988, 991 (9th Cir. 1978)). Further, once Plaintiff obtained 28 counsel, his attorney quickly procured the various records at issue 6 1 and submitted them to the Appeals Council. 2 Accordingly, the case is remanded for the ALJ to consider the 3 medical evidence and any other relevant records produced since the 4 time of the prior administrative hearing. 5 6 IV. Conclusion 7 For the reasons discussed above, the decision of the Social 8 Security Commissioner is REVERSED and REMANDED for further 9 proceedings consistent with this opinion. 10 11 Dated: September 9, 2010 12 13 ______________________________ Marc L. Goldman United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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