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Harville v. Astrue


March 24, 2009



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying an application for Child's Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). For the reasons discussed below, the court will grant plaintiff's motion for remand and deny the Commissioner's cross-motion for summary judgment.

I. Factual and Procedural Background

In a decision dated August 21, 2007, the ALJ determined plaintiff was not disabled.*fn1 The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. The ALJ found plaintiff has severe impairments of attention deficit hyperactivity disorder and rule out learning disorderbut these impairments do not meet or medically equal a listed impairment; plaintiff has a marked limitation in attending and completing tasks but does not have an extreme limitation in any domain of functioning or a marked limitation in two domains of functioning and does not functionally equal the severity of the listings; the allegations of plaintiff and his mother regarding his ability to function are not fully supported by the record; and plaintiff is not disabled. Administrative Transcript ("AT") 17-25. Plaintiff contends the ALJ erroneously found plaintiff does not meet or functionally equal a childhood listing.

II. Standard of Review

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards under 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Copeland v. Bowen, 861 F.2d 536, 538 (9th Cir. 1988) (citing Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 575-76 (9th Cir. 1988)). Substantial evidence means more than a mere scintilla of evidence, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996) (citing Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206 (1938)). The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ's conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

III. Analysis

Plaintiff contends, among other arguments, that the ALJ erroneously found that plaintiff's impairments do not meet or functionally equal a childhood listing.*fn2 In support of this contention, plaintiff relies on evidence submitted to the Appeals Council and additional evidence submitted with plaintiff's motion for summary judgment. When the Appeals Council denies review, the decision of the ALJ is the final decision. Russell v. Brown, 856 F.2d 81, 83-84 (9th Cir. 1988).*fn3 However, the evidence considered by the Appeals Council in denying the request for review becomes part of the administrative record for review by this court. See Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); see also Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) (the court may properly consider the additional materials because the Appeals Council addressed them in the context of denying appellant's request for review).

In this case, the Appeals Council considered additional evidence in denying plaintiff's request for review. AT 6, 282-283 (Dr. Pham's report), 291-293 (Dr. Teal's report). The Appeals Council noted that Dr. Pham's report was already included in the administrative record considered by the ALJ. AT 6, 266. With respect to Dr. Teal's report, the Appeals Council rejected the report as a basis for reversing the ALJ's decision, concluding that the report was based on an evaluation of plaintiff completed when he was in first grade. AT 6.*fn4

Plaintiff has submitted new evidence and requests this court order remand based on that evidence. A case may be remanded to the Secretary for the consideration of new evidence if the evidence is material and good cause exists for the absence of the evidence from the prior record. Sanchez v. Secretary of HHS, 812 F.2d 509, 511-12 (9th Cir. 1987). In order for new evidence to be "material," the court must find that, had the Secretary considered this evidence, the decision might have been different. The court need only find a reasonable possibility that the new evidence would have changed the outcome of the case. Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380-81 (9th Cir. 1984).

The new evidence submitted by plaintiff is an undated report from Dr. Rosi. The report indicates Dr. Rosi commenced treatment of plaintiff on November 10, 2007, which postdates the date of the ALJ's decision at issue in this matter. Good cause therefore exists for plaintiff's request to include Dr. Rosi's opinions in the administrative record.

When Dr. Rosi's report is considered along with Dr. Teal's report in the context of the entire record, the court finds there is a reasonable possibility the outcome of the disability decision would have changed. Dr. Rosi assessed plaintiff with Organic Brain Syndrome, a listing not considered by the ALJ or the Appeals Council. See Listing 112.02. Dr. Teal also assessed plaintiff with this disorder. AT 293. In assessing plaintiff with this disorder, both doctors made specific objective findings that are material to the consideration of whether plaintiff has marked limitations in acquiring and using information. AT 20, 292; see also Plaintiff's Ex. 1. The ALJ rejected the assessments of plaintiff's treating physicians, both of whom found plaintiff to have extreme limitations in three domains, on the basis that there were no objective findings supporting such limitations. AT 19, 240, 267. In light of the additional findings by Dr. Rosi, which reenforce those of Dr. Teal, the ALJ's evaluation of the opinions of the treating physicians is called into doubt. Similarly, the ALJ's evaluation of the credibility of plaintiff and his mother is undermined by the findings of Drs. Teal and Rosi. AT 19. The testifying expert, on whose opinion the ALJ relied, also did not have available for review the findings of these doctors. AT 19, 315-318.

For the foregoing reasons, this matter will be remanded under sentence six*fn5 of 42 U.S.C. § 405(g) for consideration of the new evidence.*fn6

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for remand is granted;

2. The Commissioner's cross-motion for summary judgment is denied; and

3. This matter is remanded for further proceedings consistent with this order.

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