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Mary J. Goede v. Michael J. Astrue

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 11, 2012

MARY J. GOEDE,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER SUPPLEMENTING THE ADMINISTRATIVE RECORD (Doc. 35)

Plaintiff Mary J. Goede, by her attorney, Ann M. Cerney, moves for an order directing the Commissioner to supplement the administrative record with the opinion of Gerald Besses, M.D., which Plaintiff submitted to the Appeals Council on February 21, 2012. Defendant opposes the motion, arguing that the Appeals Council properly considered the record pursuant to 20 C.F.R. §§ 404.970 and 404.976, and that remand to the Appeals Council would be inappropriate. Defendant apparently misunderstands Plaintiff's motion, which requests only that the material submitted to the Appeals Council be included in the Administrative Record.

In determining whether the Commissioner's decision is supported by substantial evidence, a district court must consider any new evidence submitted for the first time to the Appeals Council. Brewes v. Commissioner of Social Security Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012). The Commissioner does not dispute that Plaintiff submitted the evidence to the Appeals Council; he disputes its substantive relevance. This Court will address the dispute regarding whether the ALJ's opinion is not supported by substantial evidence in light of Dr. Besses' opinion when it considers the parties' briefs.

The Court does not agree with Plaintiff's contention that in order for the parties to properly cite to Dr. Besses' opinion, the Commissioner must supplement the administrative record. Plaintiff's having provided a full copy of the materials that she filed with the Appeals Council as Doc. 35-1 is sufficient; no further supplementation is required.

The Court hereby ORDERS that the opinion of Gerald Besses, M.D., which Plaintiff submitted to the Appeals Council on February 21, 2012, be included as part of the administrative record before this Court. In the event that a party refers to Dr. Besses' opinion in its brief, it shall cite to Doc. 35-1 at page ___. Plaintiff shall file her opening brief within thirty days of this order.

IT IS SO ORDERED.

20121211

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