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Cheresse Bonitajean Schneider v. Carolyn W. Colvin

May 8, 2013

CHERESSE BONITAJEAN SCHNEIDER,
PLAINTIFF,
v.
CAROLYN W. COLVIN, 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 September 13, 2012, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on October 15, 2012. Plaintiff filed a motion for summary judgment on February 19, 2013. Defendant filed a motion for summary judgment on March 12, 2013. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed September 17, 2012.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff asserts disability since May 24, 2010, based primarily on alleged back problems (Administrative Record ("A.R.") 55-56, 64-65, 174-77, 186-87). At a February 10, 2012 administrative hearing, Plaintiff testified that she suffers from back pain of allegedly disabling severity (A.R. 185-96).

On March 1, 2012, an Administrative Law Judge ("ALJ") found that Plaintiff has the following severe impairments: "chronic back pain secondary to disc disease with evidence of facet arthropathy at L5-S1, status post anterior fusion with LT cage in 2002; obesity; hypertension; and history of gout" (A.R. 14 (adopting treating physician diagnoses at A.R. 110-11, 157-58, 160, 162-63)). The ALJ determined that, notwithstanding these impairments, Plaintiff assertedly retains the residual functional capacity for a limited range of light work, and allegedly can perform significant numbers of jobs existing in the national economy (A.R. 15, 19-20 (adopting in part state agency physicians' residual functional capacity assessment at A.R. 140-48, and vocational expert testimony at A.R. 198-200)). In finding Plaintiff not disabled, the ALJ deemed "less than credible" Plaintiff's "allegations concerning the intensity, persistence, and limiting effects of her symptoms" (A.R. 16). On July 17, 2012, the Appeals Council denied review (A.R. 5-7).

SUBSEQUENT EVIDENTIARY SUBMISSIONS AND APPLICABLE STANDARDS 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 correct 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); see Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

Plaintiff submitted with her Motion copies of medical records dated from May 15, 2012. See Plaintiff's Motion, page 4, Exhibits B and C. Plaintiff asserts that these records document her ongoing/worsening condition. Plaintiff also submitted correspondence she sent to her counsel's office regarding additional medical care she reportedly received. See Plaintiff's Motion, Exhibit A. The additional medical care included another back surgery on December 6, 2012. Id.

Where the Appeals Council considers additional evidence but denies review, the additional evidence 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, 1231 (9th Cir. 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"); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).

In the present case, however, Plaintiff's additional evidence was not presented to the Appeals Council. Consequently, the Court may not consider the additional evidence except in analyzing whether to remand the case under sentence six of 42 U.S.C. section 405(g). A sentence six remand would be appropriate only if the additional evidence is "new" and "material," and there exists "good cause" why the evidence was not previously presented to the Administration. 42 U.S.C. § 405(g); Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001); Booz v. Secretary of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984). The Court need not determine whether the additional evidence is "new" and "material" and whether there exists "good cause" for the failure to present the evidence earlier. For the reasons discussed below, the case is remanded under sentence four of 42 U.S.C. section 405(g). Therefore, the Court need not and does not determine whether the case otherwise would have been remanded under sentence six.

DISCUSSION

Plaintiff argues that the ALJ failed to state sufficient reasons for deeming "less than fully credible" Plaintiff's testimony regarding the ...


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