Diana Gail Reynolds v. Michael J Astrue, No. 2:2012cv09179 - Document 16 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHERPROCEEDINGS by Magistrate Judge Jean P Rosenbluth. (twdb)

Download PDF

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 DIANA GAIL REYNOLDS, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-9179-JPR MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner s final decision 19 denying her application for Social Security disability insurance 20 benefits ( DIB ) and Social Security Supplemental Security Income 21 benefits ( SSI ). The parties consented to the jurisdiction of 22 the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. 23 § 636(c). This matter is before the Court on the parties Joint 24 Stipulation, filed July 30, 2013, which the Court has taken under 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for 28 Michael J. Astrue as the proper Respondent. 1 1 submission without oral argument. For the reasons stated below, 2 the Commissioner s decision is reversed and this action is 3 remanded for further proceedings. 4 II. BACKGROUND 5 Plaintiff was born on September 22, 1953. 6 Record ( AR ) 116, 125.) 7 150.) (Administrative She has a 12th-grade education. (AR Plaintiff previously worked as a housekeeper, horse 8 trainer, assembler, and cashier. (AR 49-50, 138, 148.) 9 Plaintiff injured her neck in an accident2 in 1999 and stopped 10 working on July 1, 2004, allegedly because of her injury. (AR 11 41, 147.) 12 On July 30, 2008, Plaintiff filed applications for DIB and 13 SSI.3 (AR 116-22, 125-28.) She alleged that she had been unable 14 to work since July 1, 2004, because of neck pain, vertigo, and a 15 circulation disorder. (AR 135, 147.) Her applications were 16 denied initially, on September 26, 2008 (AR 53-54, 57-61), and 17 upon reconsideration, on December 17 (AR 55-56). 18 After Plaintiff s applications were denied, she requested a 19 hearing before an Administrative Law Judge ( ALJ ). (AR 113-15.) 20 A hearing was held on November 5, 2009, at which Plaintiff, who 21 was represented by counsel, and a vocational expert ( VE ) 22 testified. (AR 37-52.) On November 12, 2009, the ALJ issued a 23 2 the hearing, she 24 injured inAt rollover carPlaintiff testified that alsowas 188.) a accident. (AR 41; see AR In an undated Disability Report, she claimed that she fell of[f] 25 a horse. (AR 147.) 26 3 On January 10 and March 28, 2005, Plaintiff applied for 27 SSI and DIB, respectively; both applications were denied at the initial level on June 24, 2005. (See AR 29, 132.) Plaintiff 28 apparently did not request review of those denials. (See id.) 2 1 written decision finding Plaintiff not disabled. (AR 24-36.) On 2 January 29, 2010, Plaintiff requested review of the ALJ s 3 decision and submitted additional evidence to the Appeals 4 Council. (AR 22-23, 241-71.) On January 18, 2011, the Appeals 5 Council incorporated the additional evidence into the record and 6 denied review. (AR 12 15.) On January 20, 2011, Plaintiff 7 submitted further evidence to the Appeals Council. 8 75.) (AR 10, 272- On August 30, 2012, the Appeals Council set aside its 9 earlier decision, considered the additional evidence submitted by 10 Plaintiff, and again denied review. (AR 6-10.) This action 11 followed. 12 III. STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), a district court may review 14 the Commissioner s decision to deny benefits. The ALJ s findings 15 and decision should be upheld if they are free of legal error and 16 supported by substantial evidence based on the record as a whole. 17 Id.; Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 18 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 742, 746 19 (9th Cir. 2007). Substantial evidence means such evidence as a 20 reasonable person might accept as adequate to support a 21 conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 22 504 F.3d 1028, 1035 (9th Cir. 2007). 23 but less than a preponderance. It is more than a scintilla Lingenfelter, 504 F.3d at 1035 24 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 25 2006)). To determine whether substantial evidence supports a 26 finding, the reviewing court must review the administrative 27 record as a whole, weighing both the evidence that supports and 28 the evidence that detracts from the Commissioner s conclusion. 3 1 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). Moreover, 2 when the Appeals Council considers new evidence in deciding 3 whether to review a decision of the ALJ, that evidence becomes 4 part of the administrative record, which the district court must 5 consider when reviewing the Commissioner s final decision for 6 substantial evidence. Brewes v. Comm r of Soc. Sec. Admin., 682 7 F.3d 1157, 1163 (9th Cir. 2012); see also Taylor v. Comm r of 8 Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). If the 9 evidence can reasonably support either affirming or reversing, 10 the reviewing court may not substitute its judgment for that of 11 the Commissioner. Reddick, 157 F.3d at 720-21. 12 IV. THE EVALUATION OF DISABILITY 13 People are disabled for purposes of receiving Social 14 Security benefits if they are unable to engage in any substantial 15 gainful activity owing to a physical or mental impairment that is 16 expected to result in death or which has lasted, or is expected 17 to last, for a continuous period of at least 12 months. 42 18 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 19 (9th Cir. 1992). 20 A. 21 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 22 assessing whether a claimant is disabled. 20 C.F.R. 23 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 24 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 25 step, the Commissioner must determine whether the claimant is 26 currently engaged in substantial gainful activity; if so, the 27 claimant is not disabled and the claim must be denied. 28 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 4 If the claimant is not 1 engaged in substantial gainful activity, the second step requires 2 the Commissioner to determine whether the claimant has a severe 3 impairment or combination of impairments significantly limiting 4 her ability to do basic work activities; if not, a finding of not 5 disabled is made and the claim must be denied. 6 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a 7 severe impairment or combination of impairments, the third step 8 requires the Commissioner to determine whether the impairment or 9 combination of impairments meets or equals an impairment in the 10 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 11 404, Subpart P, Appendix 1; if so, disability is conclusively 12 presumed and benefits are awarded. 13 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), If the claimant s impairment or combination 14 of impairments does not meet or equal an impairment in the 15 Listing, the fourth step requires the Commissioner to determine 16 whether the claimant has sufficient residual functional capacity 17 ( RFC )4 to perform her past work; if so, the claimant is not 18 disabled and the claim must be denied. 19 416.920(a)(4)(iv). §§ 404.1520(a)(4)(iv), The claimant has the burden of proving that 20 she is unable to perform past relevant work. 21 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 22 disability is established. Id. If that happens or if the 23 claimant has no past relevant work, the Commissioner then bears 24 the burden of establishing that the claimant is not disabled 25 26 4 RFC is what a claimant can do despite existing 27 exertional and nonexertional limitations. 20 C.F.R. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th 28 Cir. 1989). 5 1 because she can perform other substantial gainful work available 2 in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 3 That determination comprises the fifth and final step in the 4 sequential analysis. §§ 404.1520, 416.920; Lester, 81 F.3d at 5 828 n.5; Drouin, 966 F.2d at 1257. 6 B. 7 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 8 substantial gainful activity since July 1, 2004. (AR 29.) At 9 step two, the ALJ concluded that Plaintiff had the severe 10 impairment of mild degenerative disc disease of the cervical 11 spine. (Id.) At step three, the ALJ determined that 12 Plaintiff s impairment did not meet or equal any of the 13 impairments in the Listing. (AR 30.) At step four, the ALJ 14 found that Plaintiff had the RFC to perform the full range of 15 medium work.5 (Id.) Based on the VE s testimony, the ALJ 16 concluded that Plaintiff was able to perform her past relevant 17 work as a housekeeper/maid. (AR 31.) Accordingly, the ALJ 18 determined that Plaintiff was not disabled. (Id.) 19 V. DISCUSSION 20 Plaintiff alleges that the ALJ erred by (1) failing to find 21 that she had the severe impairment of multiple sclerosis ( MS ) 22 23 24 25 26 27 28 5 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. §§ 404.1567(c), 416.967(c). The regulations further specify that [i]f someone can do medium work, we determine that he or she can also do sedentary and light work, as defined in §§ 404.1567(a)-(b) and 416.967(a)-(b). Id. 6 1 and (2) failing to properly assess her credibility.6 (J. Stip. 2 at 3.) 3 A. 4 Plaintiff argues that the ALJ did not provide clear and The ALJ Did Not Properly Assess Plaintiff s Credibility 5 convincing reasons to support his credibility determination. 6 Stip. at 18-21, 25-27.) (J. He did not, and his decision must 7 therefore be reversed. 8 9 1. Applicable law An ALJ s assessment of symptom severity and claimant 10 credibility is entitled to great weight. See Weetman v. 11 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 12 F.2d 528, 531 (9th Cir. 1986). [T]he ALJ is not required to 13 believe every allegation of disability, or else disability 14 benefits would be available for the asking, a result plainly 15 contrary to 42 U.S.C. § 423(d)(5)(A). Molina v. Astrue, 674 16 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks and 17 citation omitted). In evaluating a claimant s subjective symptom 18 testimony, the ALJ engages in a two-step analysis. 19 Lingenfelter, 504 F.3d at 1035-36. See First, the ALJ must 20 determine whether the claimant has presented objective medical 21 evidence of an underlying impairment [that] could reasonably be 22 expected to produce the pain or other symptoms alleged. 23 1036 (internal quotation marks omitted). Id. at If such objective 24 medical evidence exists, the ALJ may not reject a claimant s 25 testimony simply because there is no showing that the impairment 26 27 28 6 The Court addresses the issues raised in the Joint Stipulation in an order different from that used by the parties, to avoid repetition and for other reasons. 7 1 can reasonably produce the degree of symptom alleged. 2 80 F.3d at 1282 (emphasis in original). Smolen, When the ALJ finds a 3 claimant s subjective complaints not credible, the ALJ must make 4 specific findings that support the conclusion. 5 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Absent affirmative 6 evidence of malingering, those findings must provide clear and 7 convincing reasons for rejecting the claimant s testimony. 8 Lester, 81 F.3d at 834. If the ALJ s credibility finding is 9 supported by substantial evidence in the record, the reviewing 10 court may not engage in second-guessing. Thomas, 278 F.3d at 11 959. 12 2. 13 Background In an undated Disability Report, Plaintiff reported that her 14 ability to work was limited by a neck injury and circulation 15 problems and vertigo. (AR 147.) She claimed that she could not 16 stand or move well or even eat due to the vertigo and could not 17 get out of bed on many days. (Id.) She stated that she had 18 not been seen by a doctor, hospital, clinic, or anyone else for 19 treatment of her condition (AR 149), but she claimed that it was 20 because I have no medical insurance so I have not had any 21 medical care; I have just been suffering for years now (AR 151). 22 She went on to state: 23 I have applied for general relief so I will be attending 24 a medical consultation in order to begin receiving GR. 25 I need medical care but don t have insurance so I just 26 end up throwing up due to having to endure the endless 27 pain. 28 (Id.) 8 1 At the hearing, Plaintiff s attorney questioned her about 2 her work history, health, and daily activities. (AR 39-49.) 3 Plaintiff testified that for the past 10 years, since she was in 4 [a] rollover car accident, she had suffered from pain in her 5 head, dizziness, nausea, and balance and coordination problems. 6 (AR 41.) She claimed that the pain had gotten progressively 7 worse since her accident, and it felt like my head is in a vice 8 [sic]. (Id.) She stated that the pain crawl[ed] down her 9 face, made her lose control, and caused symptoms such as the 10 vertigo, dizziness, the nausea, throw up. (AR 41-42.) She 11 claimed that the pain was present [a]ll the time and never went 12 away. (AR 42.) She stated that when the pain was really bad, 13 her vertigo got worse, she had trouble walking and balancing, 14 and she f[e]ll easily. (AR 43.) She claimed that sometimes 15 she was not able to walk and had to crawl around on the floor. 16 (Id.) Her vertigo also caused her to throw up and made it 17 difficult to focus. (AR 44.) Plaintiff testified that she got 18 acupuncture to treat her pain, which helped a little bit, but 19 she had not had acupuncture since [her] retirement money was 20 stolen (AR 42); later, however, she testified that she had had 21 acupuncture the day before the hearing (AR 44), although she 22 intimated that she had not had to pay for it (AR 43). The ALJ 23 did not inquire as to Plaintiff s ability to pay for treatment; 24 indeed, he did not question Plaintiff at all. 25 26 3. (See AR 39-49.) Analysis The ALJ made the following findings as to Plaintiff s 27 credibility: 28 I cannot give weight to the claimant s allegations 9 1 that she cannot do her past work because her statements 2 are not consistent with the objective findings or the 3 record as a whole. 4 experiences nausea, poor balance, pain in her head along 5 with constant falling at least once a week which she 6 attributes to the motor vehicle accident of 1999. 7 also alleged that she could only stand/walk for about one 8 hour. There is very little evidence of treatment. There 9 is no evidence of a severe unintended weight loss, or At the hearing, she alleged that she She 10 severe sleep deprivation because of pain. 11 there is no evidence of interference with concentration 12 or attention or with the ability to relate and respond 13 appropriately as a consequence of pain. 14 no medical corroboration of her subjective complaints. Additionally, Thus, there is 15 The absence of ongoing medical treatment is also 16 inconsistent with her allegation of disabling functional 17 limitations secondary to pain, and with a worsening in 18 her condition. 19 claimant in as bad shape as she alleged, she would have 20 sought some treatment to help alleviate her pain. She is 21 not currently participating in physical therapy, she does 22 not use a TENS unit and has not been prescribed a brace, 23 cane or walker. 24 [(AR 188-94)]. It is reasonable to assume that were the She also denied taking any medications 25 I find, therefore, that the evidence as a whole 26 shows that her subjective complaints are not sufficiently 27 credible to require me to accept her allegation of excess 28 pain and limitations. Accordingly, I will rely upon the 10 1 objective medical evidence which indicates an ability to 2 do medium exertion work activity. 3 (AR 30-31.) The ALJ then found that Plaintiff had the RFC to 4 perform the full range of medium work. (AR 31.) In making his 5 RFC finding, the ALJ found that Plaintiff s testimony did not 6 establish greater limitations because her statements are not 7 entirely credible. (Id.) He made the following additional 8 findings as to her credibility: 9 As stated above, there is very little evidence of 10 treatment. 11 inconsistent with her allegations. 12 to be too motivated to work. 13 took the bus to the evaluation [(AR 188-94)]. 14 Exertional Activities Questionnaire, she reported that 15 she lived with her family in her sister s house and she 16 drove her car [(AR 135-37)]. 17 testified that she gets on the computer, does some 18 laundry, prepared meals, grocery shopped and visited her 19 neighbor. 20 negatively impact her credibility and do not permit 21 reliance on her statements. The claimant s daily activities are also She does not appear Dr. Gwartz noted that she On her At the hearing, she I find that the claimant s inconsistencies 22 (Id.) 23 In determining credibility, an ALJ may consider unexplained 24 or inadequately explained failure to seek treatment or to follow 25 a prescribed course of treatment. Molina, 674 F.3d at 1112 26 (citation and internal quotation marks omitted); see also Orn v. 27 Astrue, 495 F.3d 625, 638 (9th Cir. 2007) ( [I]f a claimant 28 complains about disabling pain but fails to seek treatment, or 11 1 fails to follow prescribed treatment, for the pain, an ALJ may 2 use such failure as a basis for finding the complaint unjustified 3 or exaggerated. ). But an ALJ must not draw any inferences 4 about an individual s symptoms and their functional effects from 5 a failure to seek or pursue regular medical treatment without 6 first considering any explanations that the individual may 7 provide, or other information in the case record, that may 8 explain infrequent or irregular medical visits or failure to seek 9 medical treatment. SSR 96-7p, 1996 WL 374186, at *7. 10 [D]isability benefits may not be denied because of the 11 claimant s failure to obtain treatment he cannot obtain for lack 12 of funds. Orn, 495 F.3d at 638 (internal quotation marks, 13 alteration, and citation omitted). 14 Plaintiff stated in her Disability Report that she did not 15 seek treatment because she had no medical insurance. (AR 151.) 16 At the hearing, Plaintiff also alluded to not being able to 17 afford treatment. (See AR 42, 43.) Plaintiff s lack of 18 insurance could have explained her failure to seek treatment, but 19 the ALJ did not question Plaintiff about it during the hearing, 20 nor did he seek an explanation for it at any other time. 21 he didn t mention it in his decision. Indeed, It is possible the ALJ 22 found Plaintiff s explanation not credible, particularly given 23 that she told the consulting examiner, Dr. Barry Gwartz, that she 24 did not seek treatment because I don t want to see doctors, I 25 stay away from them. (AR 188.) But the Court cannot make that 26 determination based on the record before it. See Bray v. Comm r 27 of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) 28 (district court must review the ALJ s decision based on the 12 1 reasoning and factual findings offered by the ALJ not post hoc 2 rationalizations that attempt to intuit what the adjudicator may 3 have been thinking ). The ALJ s adverse credibility finding 4 based on Plaintiff s failure to seek treatment was thus improper 5 because nothing in the record shows that he considered her 6 alleged inability to afford treatment. See SSR 96-7p; Orn, 495 7 F.3d at 638.7 8 Because the majority of the ALJ s credibility finding was 9 premised on Plaintiff s failure to seek treatment (see AR 30-31), 10 the Court cannot say that the error was harmless. Cf. Schow v. 11 Astrue, 272 F. App x 647, 652-53 (9th Cir. 2008) (holding that 12 ALJ s reasons for rejecting plaintiff s credibility not supported 13 by substantial evidence when at least five of eight reasons not 14 supported by record). Moreover, the ALJ s other stated reasons 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Plaintiff argues generally that the ALJ s reasons for rejecting her testimony were not clear and convincing, but she does not specifically argue that the ALJ erred in rejecting her credibility based on her failure to seek treatment because he did not first consider her alleged inability to afford treatment. (See J. Stip. at 18-21, 25-27.) Ordinarily a court will not consider matters that are not specifically and distinctly argued in the claimant s briefs. See Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (internal quotation marks and citation omitted). Defendant relies on Plaintiff s failure to seek treatment in her portion of the Joint Stipulation, however (see J. Stip. at 24-25), and thus the Court addresses her alleged inability to pay. In any event, the reviewing court has an independent duty to determine whether the Commissioner s decision is (1) free of legal error and (2) is supported by substantial evidence, and it cannot uphold an ALJ s decision when that decision is based on an obvious error. See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (internal quotation marks and citation omitted); see also United States v. Levy, 391 F.3d 1327, 1335 (11th Cir. 2004) ( The issue is not whether this Court has the power to consider issues not raised in the initial brief; of course it does. ). 13 1 for rejecting Plaintiff s credibility that her testimony 2 conflicted with her daily activities and the medical evidence of 3 record may not have been clear and convincing. 4 The ALJ found that Plaintiff s testimony was not credible in 5 part because she took the bus to her consultative evaluation, 6 drove a car, and gets on the computer, does some laundry, 7 prepared meals, grocery shopped and visited her neighbor. 8 31.) (AR But Plaintiff testified that she did not cook at all except 9 for making cereal or something easy ; drove a car maybe once a 10 month for a block and did not feel comfortable driving more 11 because of her dizziness; did only a little bit of laundry; 12 used the computer for about an hour at most; and visited her 13 neighbor only two or three times a week for approximately one 14 hour to check on him because he had had a kidney transplant. 15 45-48.) (AR The ALJ did not explain why Plaintiff s engaging in very 16 occasional activities meant that she was not usually dizzy or in 17 pain. His evaluation of Plaintiff s daily activities in relation 18 to her subjective symptom testimony was thus not supported by 19 substantial evidence. See Vertigan v. Halter, 260 F.3d 1044, 20 1050 (9th Cir. 2001) (noting that [t]his court has repeatedly 21 asserted that the mere fact that a plaintiff has carried on 22 certain [limited] daily activities . . . does not in any way 23 detract from her credibility as to her overall disability, 24 [o]ne does not need to be utterly incapacitated in order to be 25 disabled, and a claimant may do these activities despite pain 26 for therapeutic reasons, but that does not mean she could 27 concentrate on work despite the pain or could engage in similar 28 activity for a longer period given the pain involved ); Moya v. 14 1 Astrue, No. EDCV 10 01584 JEM, 2011 WL 5873035, at *8 (C.D. Cal. 2 Nov. 22, 2011) (reversing ALJ s decision because his evaluation 3 of plaintiff s daily activities did not address important 4 evidence in record and activities cited were not inconsistent 5 with Plaintiff s alleged symptoms). 6 The ALJ s finding that Plaintiff s subjective symptoms were 7 not consistent with the medical evidence of record also cannot 8 support his credibility determination because, as explained 9 below, he did not consider Plaintiff s subsequent diagnosis of MS 10 and most likely downplayed her symptoms potentially attributable 11 to it because it had not yet been diagnosed at the time of his 12 decision. 13 Thus, the ALJ s decision must be reversed and this matter 14 remanded for further proceedings. On remand, the ALJ should 15 inquire as to the reasons for Plaintiff s failure to seek 16 treatment, and, if he finds her proffered reasons unpersuasive, 17 he should state why. He should also explain more fully why 18 Plaintiff s daily activities conflicted with her subjective 19 symptom testimony, should he continue to so find. Finally, he 20 should weigh Plaintiff s credibility in light of her MS 21 diagnosis. 22 B. 23 Plaintiff argues that the ALJ erred in failing to discuss Other Issues 24 Plaintiff s diagnosis of MS or find that it was a severe 25 impairment. (J. Stip. at 4-6, 15-18.) Much of Plaintiff s 26 argument centers on the new evidence she submitted to the Appeals 27 Council after the ALJ issued his written decision, which shows 28 that she was diagnosed with MS in 2010. 15 (AR 242-75.) 1 New and material evidence that is submitted to and 2 considered by the Appeals Council is not new but rather is part 3 of the administrative record properly before the district court. 4 Brewes, 682 F.3d at 1164; see also Tackett v. Apfel, 180 F.3d 5 1094, 1097 98 (9th Cir. 1999). New evidence is relevant to 6 determining whether the ALJ s decision is supported by 7 substantial evidence only where it relates to the period on or 8 before the hearing date of the administrative law judge hearing 9 decision. See 20 C.F.R. §§ 404.970(b), 416.1470(b); cf. Smith 10 v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) (holding that 11 reports containing observations made after the period for 12 disability that retrospectively analyze the claimant s pre13 expiration condition are relevant to assess the claimant s 14 disability ). 15 The new evidence Plaintiff submitted dates from August 2009 16 to January 2011. (See AR 241-75.)8 Thus, some of it related to 17 18 19 20 21 22 23 24 25 26 27 28 8 Defendant asserts that ordering remand based on the new evidence Plaintiff submitted to the Appeals Council would encourage claimants to submit additional evidence and seek a second bite at the apple in the event of an adverse decision. (J. Stip. at 14.) Plaintiff has not presented any reason why she did not proffer the new medical records, at least some of which presumably were available at the time of the hearing, to the ALJ rather than waiting to submit them to the Appeals Council. Reviewing administrative records supplemented with information the ALJ did not consider mire[s] the federal courts in an Alice in Wonderland exercise of pretending that evidence the real ALJ didn t know existed was really before him. Angst v. Astrue, 351 F. App x 227, 229-30 (9th Cir. 2009) (Rymer, J., concurring). But the proper remedy for any unfairness caused by a claimant s late submission of allegedly inapplicable evidence is for the Appeals Council to refuse to consider it, which it has the discretion to do if the evidence does not relate to the period on or before the date of the [ALJ] hearing decision. See 20 C.F.R. §§ 404.970(b); 416.1470(b). Once the Appeals Council has 16 1 the period before the ALJ rendered his decision, in November 2 2009, and some arose later. Although it appears that some of the 3 symptoms Plaintiff claimed, such as being unsteady on her feet 4 and dizzy, arose from her as-yet-undiagnosed MS, the Court need 5 not decide whether the new evidence would have altered the ALJ s 6 opinion because the ALJ will necessarily have a chance to 7 evaluate that evidence on remand. See Johnson v. Astrue, No. 8 C09 5688RBL, 2010 WL 3998098, at *5 (W.D. Wash. Sept. 14, 2010) 9 ( Remand for reconsideration of the ALJ s residual functional 10 capacity finding . . . will necessarily require the 11 administration to reconsider all of the medical evidence, 12 plaintiff s testimony, the lay witness statements, and the 13 additional evidence submitted to the Administration s Appeals 14 Council in their entirety. ). The Court does note, however, that 15 the ALJ provided very little explanation for his determination 16 that Plaintiff s vertigo, nausea, dizziness, and balance problems 17 were not severe. (See AR 30-31.) On remand, to the extent the 18 ALJ finds that those conditions, or Plaintiff s MS, are not 19 severe impairments, he should set forth specific reasons 20 supporting his findings. See Webb v. Barnhart, 433 F.3d 683, 687 21 (9th Cir. 2005) ( [A]n ALJ may find that a claimant lacks a 22 medically severe impairment or combination of impairments only 23 when his conclusion is clearly established by medical 24 evidence. (quoting SSR 85-28, 1995 WL 56856, at *3)); Lockwood 25 26 incorporated the evidence into the record, the Court has no 27 choice but to consider it. See Brewes, 682 F.3d at 1164; Taylor v. Comm r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 28 2011). 17 1 v. Colvin, No. 12 cv 00493 NJV, 2013 WL 1964923, at *7 (N.D. Cal. 2 May 10, 2013) (reversing when ALJ failed to explain why he 3 found additional impairments nonsevere). 4 VI. CONCLUSION 5 When error exists in an administrative determination, the 6 proper course, except in rare circumstances, is to remand to the 7 agency for additional investigation or explanation. INS v. 8 Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355, 154 L. Ed. 2d 272 9 (2002) (citations and quotation marks omitted); Moisa v. 10 Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Accordingly, 11 remand, not an award of benefits, is the proper course in this 12 case. See Strauss v. Comm r of Soc. Sec. Admin., 635 F.3d 1135, 13 1136 (9th Cir. 2011) (remand for automatic payment of benefits 14 inappropriate unless evidence unequivocally establishes 15 disability). As noted above, on remand, the ALJ should inquire 16 as to Plaintiff s reasons for failing to seek treatment for her 17 impairments, and he should reevaluate her credibility 18 accordingly. Moreover, to the extent he concludes that 19 Plaintiff s vertigo, nausea, dizziness, balance problems, and MS 20 are not severe, he should set forth specific findings supporting 21 those conclusions. 22 23 24 25 26 27 28 18 1 2 ORDER Accordingly, IT IS HEREBY ORDERED that (1) the decision of 3 the Commissioner is REVERSED; (2) Plaintiff s request for remand 4 is GRANTED; and (3) this action is REMANDED for further 5 proceedings consistent with this Memorandum Opinion. 6 IT IS FURTHER ORDERED that the Clerk of the Court serve 7 copies of this Order and the Judgment herein on all parties or 8 their counsel. 9 10 DATED: September 6, 2013 11 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.