Terry v. Commissioner of Social Security

Filing 27

ORDER, Defendant's 26 Motion for Leave to File a Supplemental Brief is denied; Plaintiff's 12 Motion to Compel, or alternatively to remand, is granted; the Clerk is directed to remand back to the Social Security Administration pursuant to 42 U.S.C. § 405(g), sentence six, for further administrative proceedings consistent with the amended alleged onset date of 11/1/06; the ALJ is directed to determine whether Plaintiff's certified record should be supplemented with the fol lowing documents: (1) Plaintiff counsel's letter, dated 6/11/08, modifying the alleged disability onset date, (2) medical records from Affiliated Cardiologists, and (3) medical records by Dr Shafran at Arizona Age Reversal and Neurology. Signed by Judge G Murray Snow on 5/2/11. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael J. Astrue, Social Security)
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Administration Commissioner,
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Defendant.
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Linda Terry,

No. 10-cv-0720-PHX-GMS
ORDER

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Presently before the Court is Plaintiff’s Motion to Compel Defendant Michael J.

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Astrue, Commissioner of Social Security, to supplement the certified record. (Doc. 12). In

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the alternative, Plaintiff seeks a remand so that the administrative record can be

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supplemented. For the reasons set forth below, the Court grants Plaintiff’s Motion and

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remands this matter to the Commissioner for further administrative proceedings.1
BACKGROUND

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On August 12, 2005, claimant Linda Terry filed an application for Disability

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Insurance Benefits and Supplemental Security Income under Title II of the Social Security

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Act (“Act”), alleging a disability onset date of July 1, 2001. (R. at 14). The claim was denied

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On April 27, 2011, the Court held a hearing on this matter to clarify several issues.
(Doc. 21). After the hearing, both parties, without authorization from the Court, filed
supplemental briefing. The Court disregards the supplemental briefings.

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initially on November 17, 2005, and upon reconsideration on January 31, 2007. (Id.).

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Plaintiff filed an untimely request for a hearing, but good cause being established for the late

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filing, on June 10, 2008, an Administrative Law Judge (“ALJ”) conducted a hearing on

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Plaintiff’s claims. (Id.). Plaintiff, who was represented by counsel, testified along with a

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vocational expert. At the hearing, Plaintiff’s disability onset date was amended to June 1,

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2004 due to a prior ALJ decision, dated May 24, 2004, which found that Plaintiff was not

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disabled through the date of the decision. (R. at 1006–07).

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In a decision dated August 22, 2008, the ALJ denied Plaintiff’s application, finding

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that she was not disabled because “claimant does not have an impairment or combination of

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impairments that meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart

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P, Appendix 1” (R. at 17) and she “has the residual functional capacity to perform

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sedentary/light work.” (R. at 18). Thus, the ALJ concluded that Terry “has not been under

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a disability, as defined in the Social Security Act, from July 17, 2001 through the date of this

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decision.” (R. at 20). The ALJ’s decision became the final decision of the Commissioner

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when the Appeals Council denied Plaintiff’s request for review on February 26, 2010. (R.

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at 5–7).

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Plaintiff filed the complaint underlying this action on March 31, 2010, seeking this

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Court’s review of the ALJ’s denial of benefits.2 On July 28, 2010, Plaintiff filed her opening

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brief along with a motion to compel, or in the alternative, to remand based on the exclusion

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of evidence from the record relating to the amendment of Terry’s alleged disability onset date

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as well as three sets of medical records, including those from St. Luke’s, Affiliated

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Cardiologists, and Arizona Age Reversal and Neurology. (Doc. 12). Plaintiff contends that

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on the day following her hearing before the ALJ she hand-delivered notification to the

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Phoenix Office of Hearings and Appeals of her amended alleged onset date. According to

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the date-stamp on the letter, Plaintiff counsel’s letter regarding amendment of the disability

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Plaintiff was authorized to file this action by 42 U.S.C. § 405(g) (“Any individual,
after any final decision of the Commissioner of Social Security made after a hearing to which
he was a party . . . may obtain a review of such decision by a civil action . . . .”).
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onset date was received on June 11, 2008, the day after Plaintiff’s hearing. (Doc. 12-1, Doc.

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15). In that letter, Plaintiff amended her disability onset date from July 17, 2001 to November

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1, 2006 based on the vocational expert’s hearing testimony that there would be no work for

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Terry based on Dr. Prieve’s report of December 2006 and her moderate mental limitations,

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as found by her treatment providers. (R. at 46–61, 206–15, 972–974). The medical records

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which Plaintiff seeks to add to the record were submitted prior to the hearing, between June

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3, 2008 and June 5, 2008, but were never added to the record. On August 3, 2010, Defendant

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supplemented the record with a copy of Plaintiff’s emergency medical records from the

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Temple St. Luke’s Hospital, dated June 22, 2007. (Doc. 14). Defendant clarified that the

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documents “were inadvertently omitted from the administrative record in the case of Linda

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Terry, certified on April 27, 2010.” (Id.). However, the medical records from Affiliated

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Cardiologists and Arizona Age Reversal and Neurology (Dr. Shafran) were not added. The

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ALJ does not appear to have considered either the amended disability onset date or any of

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the medical records at issue in her August 22, 2008 decision.

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DISCUSSION

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Plaintiff argues that the ALJ erred by not including the amended disability onset date

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in the record and by not considering the new date. Rather, the ALJ denied Terry’s claim

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based on evidence dated prior to the amended onset date. The ALJ further erred by not

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adding three of Plaintiff’s medical records to the administrative record. Although Plaintiff

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requests that the Court supplement the record with the requested evidence before reviewing

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it, the more appropriate remedy in these circumstances is to remand for further factual

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proceedings. See Am. Bird Conservancy v. FCC, 545 F.3d 1190, 1195 n.3 (9th Cir. 2008)

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(“The proper remedy for an inadequate record . . . is to remand to the agency for further fact

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finding.”).

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Under the Social Security Act, 42 U.S.C. § 401, et seq., there are only two kinds of

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possible remands. Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Sentence four permits

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remand “in conjunction with a judgment affirming, modifying, or reversing the

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[Commissioner’s] decision.” Id. at 99–100 (citing 42 U.S.C. § 405(g)). Sentence six permits
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remand to allow the agency to take some further action, or to consider new evidence not

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presented previously. See id. at 100. Pursuant to sentence six, the Court may remand the case

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without ruling on the merits only in two situations: 1) “where the Secretary requests a remand

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before answering the Complaint,” or 2) “where new, material evidence is adduced that was

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for good cause not presented before the agency.” Shalala v. Schaefer, 509 U.S. 292, 297 n.2

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(1993) (citing Melkonyan, 501 U.S. at 100 & n.2); Sullivan v. Finkelstein, 496 U.S. 617, 626

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(1990)).3 The latter is the proper avenue for Plaintiff.

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Defendant argues that remand is not appropriate because the evidence in question is

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not material. The Ninth Circuit has stated that “[n]ew evidence is material when it ‘bear[s]

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directly and substantially on the matter in dispute,’ and if there is a ‘reasonabl[e] possibility

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that the new evidence would have changed the outcome of the . . . determination.’” Luna v.

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Astrue, 623 F.3d 1032, 1034 (9th Cir. 2010) (alterations and omissions in original) (citing

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Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001)). In addition, evidence is new and

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material only where it relates to the period on or before the date of the ALJ’s decision. See

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20 C.F.R. § 404.970. Plaintiff amended her alleged disability onset date on June 11, 2008,

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one day after her hearing before the ALJ and well before the ALJ’s decision, dated August

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22, 2008. The date-stamps on the two omitted medical records at issue indicate that they were

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received on June 3 and June 5, 2008, also before the date of the ALJ’s decision. Additionally,

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at minimum, the amended disability onset date certainly bears directly and substantially on

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the matter in dispute because it determines the relevant time frame. Pursuant to the Social

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Security Act, the disability onset date determines the date from which a claimant is allegedly

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unable to engage in “any substantial gainful activity by reason of any medically determinable

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The statutory text providing for such orders states the following: “The court may,
on motion of the Commissioner of Social Security made for good cause shown before the
Commissioner files the Commissioner’s answer, remand the case to the Commissioner . . .
and it may at any time order additional evidence to be taken before the Commissioner of
Social Security, but only upon a showing that there is new evidence which is material and
that there is good cause for the failure to incorporate such evidence into the record in a prior
proceeding.” 42 U.S.C. § 405(g) (emphasis added).
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physical or mental impairment which can be expected to result in death or which has lasted

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or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §

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404.1505(a).

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Because consideration of Plaintiff’s amended alleged disability onset date is material

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to her case and Defendant, in its Response, has offered no convincing reason for its failure

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to incorporate this evidence as well as the medical documents from Affiliated Cardiologists

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and Dr. Shafran into the record, remand is appropriate. In Social Security cases, the ALJ has

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an independent “duty to fully and fairly develop the record and to assure that the claimant’s

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interests are considered.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)

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(quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (internal quotation marks

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omitted)). Accordingly, further consideration of the factual issues in light of the amended

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disability onset date and omitted medical records is appropriate to determine whether the

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outcome should be different.

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IT IS HEREBY ORDERED that:

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1. Defendant’s Motion for Leave to File a Supplemental Brief is DENIED (Doc. 26);

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2. Plaintiff’s Motion to Compel, or alternatively to remand, is GRANTED (Doc. 12);

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and

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2. The Clerk of the Court is directed to REMAND back to the Social Security

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Administration pursuant to 42 U.S.C. § 405(g), sentence six, for further administrative

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proceedings consistent with the amended alleged onset date of November 1, 2006. The ALJ

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is directed to determine whether Plaintiff’s certified record should be supplemented with the

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following documents: 1) Plaintiff counsel’s letter, dated June 11, 2008, modifying the alleged

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disability onset date, 2) medical records from Affiliated Cardiologists, and 3) medical records

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by Dr. Shafran at Arizona Age Reversal and Neurology.

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Dated this 2nd day of May, 2011.

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