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Michael Anthony Willman v. Michael J. Astrue

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 20, 2013

MICHAEL ANTHONY WILLMAN,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION TO AUGMENT THE RECORD [Doc. No. 16]

Presently before the Court is the motion of Michael Anthony Willman ("Plaintiff") to augment the record to include enclosures sent to the Appeals Council. [Doc. No. 16, Pl.'s Mot.; Doc. No. 16-2, Enclosures.] Plaintiff argues that these enclosures were faxed to the Appeals Council on November 16, 2011 with his brief, but were not included in the administrative record. [Doc. No. 16-3, Fax Confirmation; Doc. No. 16-1, Pl.'s Mot. at 1-2.]

In a Social Security appeal, the Ninth Circuit in Ramirez v. Shalala reviewed the entire record, which included additional submissions made to the Appeals Council after the petitioner's hearing before the Administrative Law Judge ("ALJ"). 8 F.3d 1449, 1451-52 (9th Cir. 1993). The Appeals Council must evaluate "new and material evidence" if "it relates to the period on or before the date of the [ALJ] hearing decision." 20 C.F.R. § 404.970(b); see also Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992). The ALJ hearing decision in the instant case is dated December 10, 2010. [Administrative Record ("AR") 30.] The enclosures show that the figures are from the U.S. Department of Labor Occupational Outlook Handbook dated 2008-2009 and present estimates for 2010. [Doc. No. 16-2, Enclosures; Doc. No. 22, Pl.'s Reply at 3-4.] Therefore, they relate to the period on or before the date of the ALJ hearing decision. Because the scope of this Court's review includes determining whether the Appeals Council abused its discretion in failing to remand for a change in the weight of the evidence, see Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996), the Court must consider all of the evidence that was before the Appeals Council. Accordingly, the Court GRANTS Plaintiff's motion to augment.

IT IS SO ORDERED.

20130220

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