Pamela T Grimm v. Michael J Astrue, No. 2:2011cv01418 - Document 19 (C.D. Cal. 2012)
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 PAMELA T. GRIMM, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 11-01418 RZ MEMORANDUM OPINION AND ORDER 17 After the Administrative Law Judge had rendered his decision denying 18 Plaintiff s Title XVI disability claim [AR 13 et seq.], Plaintiff submitted a report from her 19 treating psychiatrist, Dr. Villar, to the Appeals Council. [AR 283-29] In that document, 20 Dr. Villar checked several boxes indicating that Plaintiff had marked limitations in a 21 number of areas of functioning remembering work-like procedures, maintaining regular 22 attendance and being punctual; sustaining an ordinary routine without special supervision; 23 working in coordination with or in close proximity to other people; accepting instructions 24 and responding appropriately to criticism from supervisors; and getting along with co- 25 workers or peers without distracting them or exhibiting behavioral extremes. He also 26 found that Plaintiff had one severe limitation defined in the form as no useful ability 27 to function in the category of Complete a normal work day without interruptions from 28 psychologically based symptoms, performing at a consistent pace without an unreasonable 1 number of and length of rest periods. In addition to marking these various categories, 2 Dr. Villar provided descriptions of various aspects of Plaintiff s illness and symptoms. 3 The Appeals Council accepted this report and made it part of the record. [AR 4 4] The Appeals Council stated that this report did not provide a basis for changing the 5 Administrative Law Judge s decision [AR 1-2] and denied the request for review, thereby 6 transforming the decision of the Administrative Law Judge into the final decision of the 7 Social Security Commissioner. [AR 1] 8 It is clear that this opinion strikingly differs from the determination by the 9 Administrative Law Judge. Had this opinion been before the Administrative Law Judge, 10 the Administrative Law Judge would have been required to consider it. The opinion of a 11 treating physician is given special deference, Aukland v. Massanari, 257 F.3d 1033, 1036 12 (9th Cir. 2001), and generally deserves far greater weight than that of non-examining 13 physicians. Holohan v. Massanari, 246 F.3d 1195, 1201-03 (9th Cir. 2001). Indeed, 14 standing alone, the opinion of a non-examining physician cannot override the opinion of 15 a treating physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). 16 The Commissioner argues that the decision should be affirmed because 17 Plaintiff has not given good cause for failing to submit Dr. Villar s report to the 18 Administrative Law Judge. This Court doubts whether the law imposes such a good cause 19 standard. The statute that the Commissioner cites provides such a standard where a 20 claimant beseeches a court not the Appeals Council to remand for new evidence that 21 was not part of the record, and the Court is empowered to do so if the good cause standard 22 is satisfied and the evidence is material. 42 U.S.C. § 405(g). The case the Commissioner 23 cites, Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990), addresses this situation. In 24 contrast, the regulation cited by the Commissioner, 20 C.F.R. § 404.970(b), which 25 addresses information a claimant presents to the Appeals Council, contains no good cause 26 requirement, only a requirement that the new evidence be material and pertain to the period 27 on or before the Administrative Law Judge s decision. The most that can be said in support 28 of the Commissioner s position is that the Ninth Circuit has not decided definitively -2- 1 whether there must be good cause for submission of evidence to the Appeals Council. 2 Mayes v. Massanari, 276 F.3d 453, 461 n.3 (9th Cir. 2001). 3 Here, however, the Appeals Council did accept the submission, and the law 4 is clear as to the Court s responsibility when that situation occurs. Where the Appeals 5 Council has accepted additional evidence, the Court reviews the entire record, including 6 that which was before the Appeals Council. Ramirez v. Shalala, 8 F.3d 1449, 1451-52 (9th 7 Cir. 1993). The Commissioner s argument thus misses the mark. 8 With the opinion of Dr. Villar as part of the record, the decision of the 9 Commissioner cannot stand. Given the substantial weight to be placed on that opinion, the 10 Commissioner s findings as to Plaintiff s impairments and the impact on her functioning 11 must be reconsidered. Post-hoc rationalizations cannot suffice. Ceguerra v. Secretary of 12 Health & Human Services, 933 F.2d 735, 738 (9th Cir. 1991). In turn, possessed of this 13 new evidence, the Administrative Law Judge may view Plaintiff s credibility in a different 14 light, and may reach different conclusions as to Plaintiff s ability to work. 15 In light of the foregoing, the decision of the Commissioner is reversed. The 16 matter is remanded to the Commissioner for further proceedings consistent with this 17 memorandum opinion. 18 IT IS SO ORDERED. 19 20 DATED: February 7, 2012 21 22 23 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 -3-
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