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Darren Webb v. Michael J. Astrue

February 4, 2013

DARREN WEBB,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

) MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on June 6, 2012, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on July 16, 2012. Plaintiff filed a motion for summary judgment on November 6, 2012. Defendant filed a cross-motion for summary judgment on December 4, 2012. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed June 7, 2012.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Anticipating his release from prison, Plaintiff applied for Supplemental Security Income ("SSI") on November 26, 2008 (Administrative Record ("A.R.") 182-87, 216-17, 222). Plaintiff asserts disability since January 1, 2004, based on alleged schizophrenia and severe depression (id.).

An Administrative Law Judge ("ALJ") determined that Plaintiff suffers from severe "schizoaffective disorder v. bipolar disorder," with a history of seizure disorders, but that these disorders do not meet or equal a listed impairment (A.R. 12-13, 16 (adopting in part State Agency review physician opinion at A.R. 397-410, and in part the diagnoses at A.R. 286, 289-90, 298, 303, 320, 323, 338, 342, 355-61, 363, 379, 385, 389, 454, 461, 480, 486-87, 496, 508, 624, 636, 674)). The ALJ found that Plaintiff retains the residual functional capacity to perform medium work limited to: (1) work that does not require climbing ladders, ropes or scaffolds, or any exposure to hazardous machinery, unprotected heights, or other high risk, hazardous or unsafe conditions (seizure precautions) (A.R. 13 (adopting State agency review physician's physical residual functional capacity assessment at A.R. 411-18)); and (2) "simple, routine, and repetitive tasks performed in a low stress work environment, which is defined as work that does not require changes in work setting or any unusual, very fast pace or production rate requirements," requiring "no more than occasional interaction with the public and co-workers" (A.R. 13).*fn1 The ALJ found that, with this capacity, Plaintiff could perform jobs as a hand packager, house worker, or night cleaner (industrial), and therefore is not disabled (A.R. 12, 16, 20 (adopting vocational expert testimony at A.R. 67-68)).

Plaintiff sought review from the Appeals Council, submitting a legal brief, a letter from Plaintiff's drug and alcohol counselor, and some additional medical records (A.R. 5; see also A.R. 276-83 (legal brief), 682-698 (letter and additional medical records)). The Appeals Council considered these additional materials, but denied review (A.R. 1-5).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used proper legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

Where, as here, the Appeals Council considered additional material but denied review, the additional material becomes part of the Administrative Record for purposes of the Court's analysis. See Brewes v. Commissioner, 682 F.3d 1157, 1163 (9th Cir. 2012) ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence."; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1232 (2011) (courts may consider evidence presented for the first time to the Appeals Council "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).

DISCUSSION

After reviewing the entire record, including the additional evidence provided for the first time to the Appeals Council, the Court has concluded that the Administration's decision is not supported by substantial evidence. Remand is ...


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