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Jurisdiction: California Central District Court
Decision Date: 11/13/2014

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Baccari v. Colvin Baccari v. Colvin (C.D. Cal., 2014)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        JOHN JOSEPH BACCARI, Plaintiff,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CAROLYN W. COLVIN Acting Commissioner of Social Security, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Case No. EDCV 13-2393 RNB

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        November 13, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        JOHN JOSEPH BACCARI, Plaintiff, v. CAROLYN W. COLVIN Acting Commissioner of Social Security, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Case No. EDCV 13-2393 RNB

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        November 13, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The sole disputed issue listed in the Joint Stipulation is whether the Commissioner fulfilled his duty to develop the record as to plaintiff's physical conditions, specifically in light of (1) the failure of the Administrative Law Judge ("ALJ") to order a physical consultative examination; and (2) the Appeals Council's denial of review despite submission of additional evidence. (See Jt Stip at 4. ) The Court now rules as follows with respect to that issue.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                A. The ALJ's failure to order a physical consultative examination

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                It is well-established that the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered, and that this special duty exists even when the claimant is represented by counsel. See Brown v. Heckler 713 F.2d 441 443 (9th Cir. 1983); see also Garcia v. Commissioner of Social Sec. 768 F. 3d 925, 930 (9th Cir. 2014). "An ALJ's duty to develop the record further is triggered . . . when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. " See Mayes v. Massanari 276 F. 3d 453, 459-60 (9th Cir. 2001).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                However, the ALJ has broad latitude in ordering a consultative examination, and a claimant does not have an affirmative right to have a consultative examination performed by a chosen specialist. See Reed v. Massanari 270 F. 3d 838, 842 (9th Cir. 2001). Rather, a consultative examination is appropriate when there is an "ambiguity or insufficiency in the evidence that must be resolved. " See id. Here, there was no ambiguity or insufficiency in the evidence that needed to be resolved through a physical consultative examination. Although plaintiff points out that the ALJ found that "there are sparse medical treatment for any physical conditions" (see Jt Stip at 6, 10; see also AR 33), the Court does not construe the ALJ's finding as a statement that there was an ambiguity or insufficiency in the evidence that needed to be resolved. Rather, the Court construes the ALJ's finding of sparse treatment notes as a summary of the ALJ's other findings, such as (1) no objective medical evidence supported a finding that plaintiff's shoulder condition has lasted or can be expected to last for 12 continuous months; (2) no objective evidence existed of a diagnosis corroborating plaintiff's complaint of right ankle pain and the condition therefore was non-severe;

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (3) no objective evidence corroborated plaintiff's subjective complaints of medication side effects; and (4) no physician had endorsed the extent of plaintiff's alleged functional limitations. (See AR 27, 29. ) An ALJ may so find without suggesting that the record was ambiguous or insufficient to make a disability determination. See, e. g. 42 U.S.C. § 423(d)(1)(A) (claimants must satisfy durational requirement that disability lasted or can be expected to last for at least 12 continuous months); Ukolov v. Barnhart 420 F. 3d 1002, 1005-06 (9th Cir. 2005) (ALJ's non-severity determination upheld where no objective diagnostic testing corroborated existence of a medically determinable impairment); Orteza v. Shalala 50 F. 3d 748, 751 (9th Cir. 1995) (ALJ's adverse credibility determination may account for absence of evidence of side effects from prescribed medications); Matthews v. Shalala 10 F. 3d 678, 680 (9th Cir. 1993) (ALJ's rejection of allegation of disabling back impairment upheld where no physician opined that claimant's back rendered him disabled).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Accordingly, the Court finds that reversal is not warranted based on the ALJ's failure to order a physical consultative examination.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                B. The Appeals Council's denial of review

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Commissioner's regulations permit claimants to submit new and material evidence to the Appeals Council and require the Appeals Council to consider that evidence in determining whether to review the ALJ's decision. See Brewes v. Commissioner of Social Sec. Admin. 682 F. 3d 1157, 1162 (9th Cir. 2012). "If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. " See 20 C. F. R. § 404. 970(b); Brewes 682 F. 3d at 1162 and n. 3; Bates v. Sullivan 894 F.2d 1059, 1064 (9th Cir. 1990), overruled on other grounds by Bunnell v. Sullivan 947 F.2d 341 343-44 (9th Cir. 1991) (en banc).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Here, the date of the ALJ's hearing decision was July 27, 2012. (See AR 24-35. ) When plaintiff sought review by the Appeals Council, he submitted, for the first

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        time, medical evidence that included (1) two treatment notes by Dr. Bai concerning plaintiff's right shoulder dated July 10, 2012; (2) an evaluation by a physical therapist dated August 15, 2012; and (3) a residual functional capacity questionnaire completed by Dr. Ismael on January 21, 2013. (See AR 327, 331, 334-35. ) In an order issued on November 7, 2013, the Appeals Council accepted this evidence and made it part of the record. (See AR 6. ) However, in a separate order issued on the same day, the Appeals Council denied review after finding that plaintiff's additional evidence provided no basis for changing the ALJ's decision. (See AR 1-2. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                As a preliminary matter, the Court disagrees with the Commissioner's contention that the Appeals Council did not even have to consider this additional evidence because it post-dated the date of the ALJ's decision. (See Jt Stip at 7-8. ) As noted, Dr. Bai's two treatment notes were both issued on July 10, 2012, before the date of the ALJ's decision on July 27, 2012. Although the rest of the evidence - including the physical therapist's evaluation and Dr. Ismael's opinion - was generated after the ALJ's decision, this fact alone is not dispositive of whether the evidence was chronologically relevant. See Williams v. Sullivan 905 F.2d 214 216 (8th Cir. 1990) (medical report generated after issuance of ALJ's decision and submitted to Appeals Council was not necessarily chronologically irrelevant because the "timing of the examination is not dispositive of whether evidence is material"). Rather, the additional evidence is chronologically relevant if it related to a claimant's condition on or before the date of the ALJ's decision. See id. Both the physical therapist's evaluation and Dr. Ismael's opinion related to plaintiff's longstanding and chronic impairments in his shoulders and back, impairments that existed on or before the date of the ALJ's decision. (See AR 322, 334-35. ) Moreover, Dr. Ismael notably

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        stated that his opinion was retroactive to October 18, 2010 (see AR 335), well before the date of the ALJ's decision on July 27, 2012. Accordingly, the Court finds that this evidence was chronologically relevant and that the Appeals Council therefore should have considered it. See Farrell v. Astrue 692 F. 3d 767, 771 (7th Cir. 2012) (evidence submitted to Appeals Council that post-dated ALJ's decision nonetheless related to the period on or before the date of ALJ's decision where the additional evidence "builds on the allusions" to a possible diagnosis from earlier medical reports); Bergmann v. Apfel 207 F. 3d 1065, 1070 (8th Cir. 2000) (same where the additional evidence concerned a "relatively longstanding" impairment); Wilkins v. Secretary, Dept. of Health and Human Services 953 F.2d 93 96 (4th Cir. 1991) (same where additional evidence clearly related to claimant's condition prior to the rendering of the ALJ's decision); Williams 905 F.2d at 216 (same where the additional evidence concerned a "chronic" condition); Padilla v. Colvin 525 Fed. Appx. 710, 711, 713 (10th Cir. 2013) (same where the additional evidence corroborated diagnosis made before the hearing and related to and augmented earlier medical reports).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Moreover, the Court finds that the Appeals Council erred in finding that the additional evidence did not provide a basis for changing the ALJ's decision. (See AR 2. ) The additional evidence, particularly Dr. Ismael's opinion, was directly responsive to the ALJ's explicit finding that no physician had endorsed the extent of plaintiff's alleged functional limitations. Accordingly, the Court finds that reversal is warranted based on the new and material evidence submitted to the Appeals Council. See Brewes 682 F. 3d at 1163 (reversing where Appeals Council found that additional evidence submitted to it provided no basis for changing ALJ's decision because the evidence was "directly responsive" to adverse vocational evidence relied upon by the ALJ); see also Borrelli v. Commissioner of Social Sec. 570 Fed. Appx. 651, 652 (9th Cir. 2014) (now citable for its persuasive value per Ninth Circuit Rule 36-3) (reversing where Appeals Council summarily denied review because additional

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 6

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        evidence submitted to Appeals Council went directly to ALJ's explicit finding of an absence of recent medical evidence).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CONCLUSION AND ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The law is well established that the decision whether to remand for further proceedings or simply to award benefits is within the discretion of the Court. See, e. g. Salvador v. Sullivan 917 F.2d 13 15 (9th Cir. 1990); McAllister v. Sullivan 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker 654 F.2d 631 635 (9th Cir. 1981). Remand is warranted where additional administrative proceedings could remedy defects in the decision. See, e. g. Kail v. Heckler 722 F.2d 1496 1497 (9th Cir. 1984); Lewin 654 F.2d at 635. Remand for the payment of benefits is appropriate where no useful purpose would be served by further administrative proceedings, Kornock v. Harris 648 F.2d 525 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. Heckler 785 F.2d 1423 1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits, Bilby v. Schweiker 762 F.2d 716 719 (9th Cir. 1985).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Here, the Court has concluded that this is not an instance where no useful purpose would be served by further administrative proceedings.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Accordingly, IT IS HEREBY ORDERED that, pursuant to sentence four of 42 U.S.C. § 405(g), Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DATED: November 13, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        ROBERT N. BLOCK        UNITED STATES MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the administrative record ("AR"), and the Joint Stipulation ("Jt Stip") filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Concurrently, the Appeals Council rejected and returned other evidence that was "about a later time" than the ALJ's decision. (See AR 2. ) This other evidence is not relevant to the parties' disputed issue.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 It is not the Court's intent to limit the scope of the remand.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the administrative record ("AR"), and the Joint Stipulation ("Jt Stip") filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Concurrently, the Appeals Council rejected and returned other evidence that was "about a later time" than the ALJ's decision. (See AR 2. ) This other evidence is not relevant to the parties' disputed issue.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 It is not the Court's intent to limit the scope of the remand.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Salvador v. Sullivan, 917 F.2d 13 (C.A.9 (Cal.), 1990)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1990-10-22 Citations: 5
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Kail v. Heckler, 722 F.2d 1496 (9th Cir., 1984)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1984-01-05 Citations: 6
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Bilby v. Schweiker, 762 F.2d 716 (9th Cir., 1984)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1984-07-24 Citations: 9
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes

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