Susan F. Wyatt v. Carolyn W. Colvin, No. 5:2015cv01961 - Document 20 (C.D. Cal. 2016)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)
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Susan F. Wyatt v. Carolyn W. Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 SUSAN F. WYATT, Plaintiff, 13 14 No. EDCV 15-1961 SS v. MEMORANDUM DECISION AND ORDER 15 16 CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant. 17 18 19 20 I. 21 INTRODUCTION 22 23 Susan F. Wyatt (“Plaintiff”) seeks review of the final 24 decision of the Commissioner of the Social Security Administration 25 (the “Commissioner” or the “Agency”) denying request for her social 26 security benefits. 27 § 636(c), to the jurisdiction of the undersigned United States 28 Magistrate Judge. The parties consented, pursuant to 28 U.S.C. For the reasons stated below, the decision of Dockets.Justia.com 1 the 2 administrative proceedings consistent with this decision. Commissioner is REVERSED and REMANDED for further 3 4 II. 5 PROCEDURAL HISTORY 6 7 Plaintiff filed an application for Title XVI Supplemental 8 Security Income (“SSI”) on January 25, 2012.1 9 Record (“AR”) 226-32). Plaintiff alleged a disability onset date 10 of September 1, 2010. (AR 228). 11 application on July 6, 2012. (AR 93-96). Plaintiff filed a request 12 for reconsideration on July 24, 2012. 13 affirmed the denial of Plaintiff’s claim on September 18, 2012. 14 (AR 101–03). 15 hearing before an Administrative Law Judge (“ALJ”). (Administrative The Agency denied Plaintiff’s (AR 98–100). The Agency On November 15, 2012, Plaintiff timely requested a (AR 104-06). 16 17 A hearing before an ALJ was scheduled for June 28, 2013 at 18 the Agency’s office in Boise, Idaho. 19 Plaintiff’s request, the Agency transferred jurisdiction of the 20 claim to the Agency’s office in Moreno Valley, California on June 21 28, 2013. 22 Agency’s Moreno Valley, California office for January 27, 2014. 23 (AR 155-59). However, on January 8, 2014, Plaintiff’s counsel 24 withdrew 25 jurisdiction. 26 a continuance from the Agency to retain new counsel. (AR 141-46). from However, upon A hearing was then scheduled at the representation (AR 179). (AR 135-36). following the transfer of On January 13, 2014, Plaintiff requested (AR 181). 27 28 1 Plaintiff filed a joint SSI application with her husband, Armand Beckwith Collins. (AR 226-32). 2 1 Plaintiff retained Mario A. Davila as her representative on January 2 17, 2014. 3 representative on February 17, 2014. (AR 207). Plaintiff retained Valerie Garcia as her (AR 225). 4 5 Plaintiff testified at a hearing before ALJ Marti Kirby on 6 February 19, 2014 (“Hearing”). 7 (“VE”) Luis Mas also testified. (AR 44-65). Vocational Expert (AR 61-64). 8 9 The ALJ issued an unfavorable decision on March 6, 2014. 10 (AR 21-43). 11 Appeals Council (“Council”) on April 2, 2014, (AR 19), which the 12 Council denied on July 25, 2015. (AR 1-5). 13 became the final decision of the Commissioner. Plaintiff filed the 14 instant action on September 23, 2015. Plaintiff filed a timely request for review with the The ALJ’s decision thus (Dkt. No. 1). 15 16 III. 17 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 18 19 To qualify for disability benefits, a claimant must 20 demonstrate a medically determinable physical or mental impairment 21 that prevents her from engaging in substantial gainful activity 22 and that is expected to result in death or to last for a continuous 23 period of at least twelve months. 24 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 25 impairment must render the claimant incapable of performing the 26 work she previously performed and incapable of performing any other 27 substantial gainful employment that exists in the national economy. 28 3 Reddick v. Chater, 157 F.3d 715, The 1 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 2 42 U.S.C. § 423(d)(2)(A)). 3 4 To decide if a claimant is entitled to benefits, an ALJ 5 conducts a five-step inquiry. 6 steps are: 20 C.F.R. §§ 404.1520, 416.920. The 7 8 (1) Is the claimant presently engaged in substantial 9 gainful activity? 10 11 disabled. (2) If so, the claimant is found not If not, proceed to step two. Is the claimant’s impairment severe? 12 claimant is found not disabled. 13 If not, the step three. 14 (3) If so, proceed to Does the claimant’s impairment meet or equal one of 15 the specific impairments described in 20 C.F.R. 16 Part 404, Subpart P, Appendix 1? 17 claimant is found disabled. 18 step four. 19 (4) If so, the If not, proceed to Is the claimant capable of performing his past 20 work? 21 If not, proceed to step five. 22 (5) If so, the claimant is found not disabled. Is the claimant able to do any other work? If not, 23 the claimant is found disabled. If so, the claimant 24 is found not disabled. 25 26 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 27 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. 28 §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 4 1 The claimant has the burden of proof at steps one through 2 four, and the Commissioner has the burden of proof at step five. 3 Bustamante, 262 F.3d at 953-54. 4 affirmative duty to assist the claimant in developing the record 5 at every step of the inquiry. 6 claimant meets her burden of establishing an inability to perform 7 past work, the Commissioner must show that the claimant can perform 8 some 9 national economy, taking into account the claimant’s residual 10 functional capacity (“RFC”), age, education, and work experience. 11 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 12 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 13 so by the testimony of a vocational expert or by reference to the 14 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, 15 Subpart P, Appendix 2 (commonly known as “the Grids”). 16 v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 17 has 18 limitations, the Grids are inapplicable and the ALJ must take the 19 testimony of a vocational expert. 20 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 21 (9th Cir. 1988)). 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ other both work that exertional exists Additionally, the ALJ has an Id. at 954. in If, at step four, the “significant in the The Commissioner may do (strength-related) 5 numbers” and Osenbrock When a claimant non-exertional Moore v. Apfel, 216 F.3d 864, 1 IV. 2 THE ALJ’S DECISION 3 4 The ALJ employed the five-step sequential evaluation process. 5 At step one, the ALJ found that Plaintiff had not engaged in 6 substantial gainful employment since January 25, 2012.2 7 At step two, the ALJ found that Plaintiff had 8 impairments: depression, anxiety, personality disorder, and PTSD. 9 (AR 26). (AR 26). four “severe” At step three, the ALJ found that Plaintiff did not have 10 an impairment or combination of impairments that met or medically 11 equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart 12 P, Appendix 1. (AR 28). 13 14 At step four, the ALJ determined that Plaintiff retained a 15 Residual Functional Capacity (“RFC”) to “perform a full range of 16 work at all exertional levels” subject to the following non- 17 exertional limitations: 18 19 [Plaintiff] cannot climb ladders, ropes, or scaffolds; 20 she cannot work at unprotected height, around moving 21 machinery, 22 requiring hypervigilance or intense concentration on a 23 particular task, meaning she cannot do a job in which 24 she could not be off tasks for the briefest amount of 25 time, like watching a surveillance monitor or where 26 27 28 or other hazards; 2 she cannot do a job Plaintiff alleged a disability onset date of September 1, 2010. (AR 31). However, in his decision, the ALJ did not provide a detailed discussion of the Plaintiff’s medical history prior to January 25, 2012, the date the initial SSI application was filed, because it was of “limited relevance.” (AR 31). 6 1 safety might be an issue; she is limited to unskilled 2 nonpublic work; she can have occasional non-intense 3 interactions with coworkers or supervisors; and she 4 cannot do fast paced production of assembly line type of 5 work. 6 7 (AR 29). 8 In 9 making this finding, the ALJ considered Plaintiff’s 10 subjective 11 “inconsistent with the objective medical evidence.” 12 ALJ also rejected the statements of Plaintiff’s husband. 13 The ALJ gave “great weight” to the opinions of the State agency 14 psychological consultants in his decision and rejected the opinion 15 of 16 “inconsistent with the objective medical evidence as a whole.” 17 (AR 35-36). allegations, Plaintiff’s treating but found physician, them Dr. not Denise credible and (AR 30). The (AR 31). Dittemore, as 18 19 Finally, at step five the ALJ considered Plaintiff’s age, 20 education, work experience and RFC, and concluded that she could 21 perform jobs available in significant numbers in the national 22 economy. 23 “nonexertional limitations,” she could not be expected to perform 24 work at “all exertional levels.” 25 the 26 employment in small parts assembly, as a swatch clerk, or as a 27 photocopy machine worker. 28 that Plaintiff was not disabled under the Agency’s rules. VE’s (AR 37). testimony, The the ALJ ALJ noted (AR 37). found (AR 37). 7 that, that due to Plaintiff’s However, considering Plaintiff could find Therefore, the ALJ concluded (AR 38). 1 V. 2 STANDARD OF REVIEW 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner’s decision to deny benefits. The court may set aside 6 the Commissioner’s decision when the ALJ’s findings are based on 7 legal error or are not supported by “substantial evidence” in the 8 record as a whole. 9 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. 10 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 11 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 1033, 1035 12 “Substantial evidence is more than a scintilla, but less than 13 14 a preponderance.” 15 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 16 evidence which a reasonable person might accept as adequate to 17 support a conclusion.” Id. (citing Jamerson, 112 F.3d at 1066; 18 Smolen, 19 evidence supports a finding, the court must “‘consider the record 20 as a whole, weighing both evidence that supports and evidence that 21 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 22 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 23 1993)). 24 or reversing that conclusion, the court may not substitute its 25 judgment for that of the Commissioner. 26 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). 27 \\ 28 \\ 80 F.3d Reddick, 157 F.3d at 720 (citing Jamerson v. at 1279). To determine It is “relevant whether substantial If the evidence can reasonably support either affirming 8 Reddick, 157 F.3d at 720- 1 VI. 2 DISCUSSION 3 4 Plaintiff argues that the ALJ failed to provide reasons 5 supported by substantial evidence for rejecting the opinion of her 6 treating physician, Dr. Dittemore. 7 Support of Complaint (the “MSC”), Dkt. No. 17, at 5). 8 further argues that the Appeals Council erred in refusing to 9 consider new medical evidence material to the determination of 10 disability. (MSC at 12). (Plaintiff’s Memorandum in Plaintiff The Court agrees with both contentions. 11 12 The record demonstrates that rejecting the the ALJ failed opinion of to provide Plaintiff’s 13 legitimate 14 treating physician. 15 excluded new medical information, which may be material to the 16 disability determination. 17 below, the Court finds that the ALJ’s decision must be REVERSED 18 and REMANDED. reasons for In addition, the Appeals Council improperly Accordingly, for the reasons discussed 19 20 A. 21 The ALJ Failed to Properly Consider The Opinion Of Plaintiff’s Treating Physician 22 23 Plaintiff asserts that the ALJ erred in rejecting the treating 24 physician’s opinion by improperly relying on isolated evidence of 25 conservative medical treatment and intermittent improvements in 26 Plaintiff’s condition. 27 \\ 28 \\ (MSC at 7-9). 9 The Court agrees. 1 In a disability determination before the Agency, the opinions 2 of treating physicians are entitled to special weight because the 3 treating physician is hired to cure, and therefore has a better 4 opportunity to know and observe the claimant as an individual. 5 Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Thomas v. 6 Barnhart, 278 F.3d 947, 956–57 (9th Cir. 2002); Magallanes v. 7 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 8 the treating physician’s opinion well-supported by accepted medical 9 techniques and consistent with the other substantive evidence in Where the Agency finds 10 the 11 20 C.F.R. § 404.1527(c)(2); Orn v. Astrue, 495 F.3d 625, 631 (9th 12 Cir. 2007). 13 physician’s opinion is owed deference and given the “greatest 14 weight.” 15 The ALJ may not reject the contradicted opinion without providing 16 “specific 17 evidence in the record. 18 F.3d 1194, 1198 (9th Cir. 2008); Orn, 495 F.3d at 632. record, that opinion is ordinarily controlling. When contradicted by another doctor, the treating Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). and legitimate” reasons, supported by substantial See Ryan v. Comm'r of Soc. Sec., 528 19 20 Dr. Dittemore treated Plaintiff from August 2013 through June At Plaintiff’s initial 21 2014. 22 evaluation on August 15, 2013, Dr. Dittemore noted that Plaintiff 23 was depressed, irritable and anxious. 24 Plaintiff with bipolar disorder, generalized anxiety disorder and 25 \\ 26 \\ 27 \\ 28 \\ (See AR 461-62, 465-66, 467-68). 10 (AR 462). She diagnosed 1 post-traumatic stress disorder, and assigned a GAF score of 50.3 2 (AR 461-62). 3 4 Plaintiff saw Dr. Dittemore again on January 3, 2014. 5 (AR 467-69). 6 “depression 7 hygiene.” 8 impairments had a moderate impact on her “ability to make judgments 9 on simple work-related decisions.” Dr. Dittemore noted that Plaintiff suffered from and low energy,” (AR 468). She and had opined “difficulty that (AR 468). keeping Plaintiff’s up mental She also stated that 10 Plaintiff had “extreme” limitations in her ability to “respond 11 appropriately to usual work situations and to changes in a routine 12 work setting.” (AR 468). 13 14 The ALJ gave “little weight” to Dr. Dittemore’s opinion that 15 Plaintiff “did not have the mental capacity to engage in sustained 16 work activity” because the opinion was “inconsistent with the 17 objective medical evidence as a whole.” 18 the ALJ rejected Dr. Dittemore’s opinion because: (AR 36). Specifically, 19 20 The medication regimen was effective in controlling the 21 [Plaintiff’s] 22 increased symptoms related to psychological stressors, 23 lack of medication use, or drug use. symptoms even when she complained of This opinion is 24 3 25 26 27 28 A Global Assessment of Functioning (GAF) score is the clinician's judgment of an individual's overall level of functioning. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 32 (4th Ed. 2000). A GAF score of 41–50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Id. at 34. 11 1 also inconsistent with Dr. Dittemore’s own treatment 2 records that document continued conservative treatment 3 despite complaints of increased psychological symptoms 4 and no referral for overnight inpatient psychiatric 5 treatment. 6 7 (AR 36) (internal citations omitted). 8 9 As discussed more fully below, the Court finds that the ALJ’s 10 reasons for rejecting Dr. Dittemore’s opinions were not “specific 11 and legitimate reasons.” Therefore, remand is required. 12 13 1. The ALJ Erred In Rejecting Dr. Dittemore’s Opinion On 14 The Grounds That Plaintiff’s “Medication Regimen Was 15 Effective” 16 17 The ALJ rejected Dr. Dittemore’s opinion because Plaintiff’s 18 “medication regimen was effective in controlling [Plaintiff’s] 19 symptoms.” 20 of the Lifeways mental clinic (“Lifeways”) from April 2011 – March 21 2013, (AR 333-71), indicating that Plaintiff’s medication regimen 22 was 23 symptoms related to psychological stressors, lack of medicine use, 24 or drug use.” (AR 36).4 In addition, the ALJ noted that Plaintiff’s (AR 36). effective “even The ALJ cited treatment notes from the staff when [Plaintiff] complained of increased 25 4 26 27 28 Plaintiff received treatment at the Lifeways mental health clinic while she was living in Oregon. (AR 34, 494). In 2013, Plaintiff moved to California, and began seeing Dr. Dittemore for treatment. (AR 34, 461). Although the ALJ’s written decision includes a detailed summary of Plaintiff’s treatment at Lifeways, the ALJ did not directly address the medical opinions of the Lifeways staff in 12 1 recent marriage and ability “to be cooperative and cordial during 2 the hearing” undermined her claims of “extreme social limitations.” 3 (AR 36). 4 5 While the cited treatment note passages appear to show an 6 improvement in Plaintiff’s condition, the ALJ failed to mention 7 that the records also show frequent fluctuations over the same 8 period. 9 report in which clinical staff noted that Plaintiff stated, “I feel For example, the ALJ cited a January 23, 2013 Lifeways (AR 445). 10 so much better.” 11 that the Plaintiff “is still having panic attacks, a couple times 12 a week.” 13 report 14 Plaintiff “went from severe agitation, to crying, to having panic 15 symptoms, all within minutes of one another.” (AR 443). (AR 445). from However, the same medical report noted Moreover, the ALJ ignored a follow-up medical February 19, 2013, in which Lifeways staff said 16 17 Thus, the ALJ’s reliance on a finding that the “medication [Plaintiff’s] symptoms” 18 regimen 19 reflects an overly selective reading of the record. 20 reading fails to constitute substantial evidence to discredit Dr. 21 Dittemore’s 22 impermissible for the ALJ to develop an evidentiary basis by “not 23 fully accounting for the context of materials or all parts of the 24 testimony and reports”); Gallant v. Heckler, 753 F.2d 1450, 1456 25 (9th Cir. 1984) (an ALJ may not reach a conclusion and justify it was effective opinion. in See controlling Reddick, 157 F.3d at This selective 723 (it is 26 27 28 his determination. (AR 36). Despite voluminous medical records from Lifeways clinical staff, the ALJ selected isolated evidence from the Lifeways treatment notes only to contradict Dr. Dittemore’s findings. (AR 36). 13 1 by ignoring competent evidence in the record that would suggest 2 the opposite result). 3 4 Moreover, even if the record consistently showed that 5 medication improved Plaintiff’s condition, this fact alone would 6 not demonstrate that the Plaintiff was not disabled under Agency 7 rules. 8 (9th Cir. 2001) (“That a person who suffers from severe panic 9 attacks, anxiety and depression makes some improvement does not 10 mean that the person’s impairments no longer seriously affect her 11 ability to function in a workplace.”); Kellough v. Heckler, 785 12 F.2d 13 activity’ must be read in context . . .”). 14 nominally rejected Dr. Dittemore’s opinion as “inconsistent with 15 the objective medical evidence,” the ALJ still “accommodated the 16 limitations noted by Dr. Dittemore by precluding [Plaintiff] from 17 jobs that require hypervigilance or intense concentration on a 18 particular task, limiting her to unskilled nonpublic work with 19 occasional non-intense interactions with coworkers or supervisors, 20 and precluding her from fast paced production or assembly line type 21 of work.” 22 severity of Plaintiff’s limitations. See 1147, Holohan 1153 (4th (AR 36). v. Cir. Massanari, 1986) 246 (“‘Feels F.3d well’ 1195, and 1205 ‘normal Even while the ALJ Thus, the ALJ’s own decision recognized the 23 24 Because the medical evidence demonstrates that Plaintiff 25 continued to suffer from a serious mental impairment, the ALJ’s 26 finding that the medication regimen was “effective” in controlling 27 her symptoms is not a legitimate reason to reject Dr. Dittemore’s 28 opinion. 14 1 2. The ALJ Erred In Rejecting Dr. Dittemore’s Opinion On 2 The 3 Treatment Was “Conservative” Grounds That Plaintiff’s 4 5 The ALJ found that Dr. Dittemore’s opinion was inconsistent 6 with Plaintiff’s medical records because she received “conservative 7 treatment despite complaints of increased psychological symptoms.” 8 (AR 36). 9 considered Dr. Dittemore’s treatment records and not past records In rejecting Dr. Dittemore’s opinion, the ALJ only 10 prepared by Lifeways staff. 11 Plaintiff regularly sought mental health treatment since at least 12 April 2011. 13 of medications to treat her mental illness, including Clonazepam, 14 Seroquel, Sertraline, Trazadone and Wellbutrin. 15 Moreover, medication type and dosage were routinely adjusted in 16 response to changes in Plaintiff’s condition. 17 355-56, 358, 365-69). (AR 370-71). (AR 36). The full record shows that Doctors prescribed Plaintiff a variety (See AR 333-70). (AR 333, 342, 353, 18 19 The ALJ’s characterization Plaintiff’s of treatment as evidence of 20 “conservative” 21 “conservative care” to discount testimony regarding the severity 22 of an impairment. 23 Cir. 2007). However, a mental health medication regimen, involving 24 numerous variations of medications and treatment and spanning 25 multiple years is not fairly characterized as “conservative care.” 26 See Gentry v. Colvin, 2013 WL 6185170 at *18 (E.D. Cal. 2013) 27 (holding that a multi-prescription medication regimen to treat 28 anxiety is disorder, questionable. An ALJ may use See Parra v. Astrue, 481 F.3d 742, 750-51 (9th major depressive 15 disorder and PTSD did not 1 constitute “conservative care”). 2 that 3 legitimate reason to reject Dr. Ditte more’s opinion. Plaintiff received Accordingly, the ALJ’s finding “conservative treatment” is not a 4 5 B. 6 The Appeals Council Improperly Excluded New Evidence Material To The Determination Of Disability 7 8 Plaintiff asserts that the Appeals Council improperly excluded 9 new medical evidence relating to Plaintiff’s condition prior to 10 the ALJ’s decision. (MSC at 13). The Court agrees. 11 12 When making a disability determination, “[i]f new and material 13 evidence is submitted, the Appeals Council shall consider the 14 evidence only where it relates to the period on or before the date 15 of the administrative law judge hearing decision.” 16 § 404.970(b). 17 period are still relevant, if they relate back to the Plaintiff’s 18 condition during the time period at issue. See Taylor v. Comm’r of 19 Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011) (quoting 20 Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1996)). 21 the court found that an Appeals Council was required to consider 22 the 23 relevant 24 plaintiff’s “mental impairments and limitations” before the period 25 expired. 26 to consider new evidence but fails to do so, the district court 27 must still consider a post-hearing physician’s opinion as part of 28 the court’s “overall review of the ALJ’s decision.” results 20 C.F.R. Medical evaluations done after the relevant time of time a psychiatric period because Id. at 1232-33. evaluation it conducted concerned the In Taylor, after status the of a Where the Appeals Council is required 16 Warner v. 1 Astrue, 859 F.Supp.2d 1107, 1115 (2012). 2 remand the case to the ALJ to reconsider the decision in light of 3 the additional evidence. The district court may Taylor, 81 F.3d at 1233. 4 5 This Court may remand a matter to the Agency if the new “material” to a determination of disability, 6 evidence 7 Plaintiff shows “good cause” for having failed to produce that 8 evidence earlier. 9 evidence must bear directly and substantially on the matter at 10 issue and there must be a “reasonable possibility” that the new 11 evidence would have changed the outcome of the administrative 12 hearing. 13 (as amended); Booz v. Secretary of Health & Human Servs., 734 14 F.2d 1378, 1380-81 (9th Cir. 1984). 15 satisfied if new information surfaces after the Commissioner’s 16 final decision and the claimant could not have obtained that 17 evidence at the time of the administrative proceeding. 18 Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). 19 meet 20 favorable report once his claim has been denied. 21 good cause, the claimant must show that the new evidence was 22 unavailable earlier. is 42 U.S.C. § 405(g). and To be material, the new Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) the good cause requirement The good cause requirement is by Key v. A claimant does not merely obtaining a more To demonstrate Mayes, 276 F.3d at 463. 23 24 Here, Plaintiff submitted a Mental Impairment Questionnaire, 25 completed by Dr. Dittemore, to the Appeals Counsel along with her 26 request 27 questionnaire 28 decision. (AR 307). In the questionnaire, Dr. Dittemore diagnosed for review. on March (AR 307). 11, 2014, 17 Dr. Dittemore five days completed after the the ALJ’s 1 Plaintiff with bipolar I disorder, generalized anxiety and PTSD. 2 (AR 307). 3 understanding and memory; concentration and persistence; social 4 interactions, and adaptation; and would likely experience episodes 5 of decompensation or deterioration in a work or work-like setting.” 6 (AR 307). She also opined that Plaintiff was “markedly limited in 7 8 In denying Plaintiff’s Request for Review, the Appeals Council 9 acknowledged that it received new medical records dated March 11, 10 2014 and June 16, 2014. 11 evidence 12 January 2014 opinion” regarding Plaintiff’s mental health during 13 the period under consideration by the ALJ. 14 the Appeals Council summarily refused to consider the evidence 15 because “the new information [was] about a later time.” 16 While the Appeals Council could have properly rejected new medical 17 evidence relating to the five-day period between the ALJ’s decision 18 and the questionnaire’s completion, it should have considered any 19 information pertaining to the period prior to the ALJ’s decision. 20 The March 11, 2014 questionnaire included diagnoses for bipolar I 21 disorder, generalized anxiety and PTSD. 22 made within five days of the ALJ’s decision, was not “about a later 23 time,” but was consistent with Dr. Dittemore’s diagnosis of the 24 Plaintiff dating back to their first meeting on August 15, 2013. 25 (AR 461, 480). 26 period of Dr. Dittemore’s treatment of Plaintiff, which includes 27 the time period under consideration by the ALJ. 28 Appeals Council erred in excluding Dr. Dittemore’s questionnaire “could (AR 2). essentially Plaintiff contends that the new have supported [Dr. Dittemore’s] (MSC at 12). However, (AR 2). (AR 307). That diagnosis, The new evidence appeared to include the time 18 Accordingly, the 1 from its consideration because the new evidence related to the 2 period before the date of the ALJ’s decision. 3 4 Remand for further proceedings is appropriate where additional 5 proceedings could remedy defects in the Commissioner’s decision. 6 See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Kail v. 7 Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 8 Council 9 consideration by the ALJ, the case must be remanded to remedy this 10 improperly excluded new medical Because the Appeals information for defect. 11 12 VII. 13 CONCLUSION 14 15 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 16 the decision of the Commissioner and REMANDING this matter for 17 further proceedings consistent with this decision. IT IS FURTHER 18 ORDERED that the Clerk of the Court serve copies of this Order and 19 the Judgment on counsel for both parties. 20 21 DATED: October 19, 2016 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS/NEXIS, WESTLAW OR ANY OTHER LEGAL DATABASE. 27 28 19
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