Wendelschafer v. Astrue

Filing 31

ORDER, Plaintiff's Motion for Reconsideration of the Court's Order 30 dated 2/28/14 is granted; in light of the new and material evidence submitted with Plaintiff's Motion for Reconsideration, this Court's Order and Judgment ent ered on 2/28/14 are vacated; the final decision of the Commissioner is vacated; this matter is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g) for further administrative proceedings to consider whether Plaintiff was actually disabled during the period of time relevant to his first application in light of the new and material evidence; the Clerk shall enter judgment accordingly. Signed by Magistrate Judge Michelle H Burns on 4/15/14. (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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Carolyn W. Colvin, Commissioner of the)
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Social Security Administration,
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Defendant.
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Wade Wendelschafer,

CV-12-1951-PHX-MHB
ORDER

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Pending before the Court is Plaintiff’s Motion for Reconsideration of the Court’s

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Order dated February 28, 2014 (Doc. 30). Plaintiff seeks an order remanding this matter for

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further proceedings.

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In April 2007, Plaintiff filed applications for disability insurance benefits and

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supplemental security income alleging disability beginning May 30, 2007, due to neck and

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back impairments. (Tr. at 238-48.) An ALJ denied Plaintiff’s claims on October 8, 2009.

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(Tr. at 83-95.) Plaintiff subsequently requested review of the ALJ’s October 2009 decision

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and filed new applications for disability insurance benefits and supplemental security

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income. (Tr. at 167-68, 256-70.) In March 2010, the Appeals Council granted Plaintiff’s

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request for review, remanded the case to the ALJ for further proceedings, and instructed the

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ALJ to consolidate Plaintiff’s claims. (Tr. at 96-98.) On January 28, 2011, the ALJ issued

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a decision denying Plaintiff’s claims. (Tr. at 7-26.)

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Specifically, the ALJ determined that Plaintiff had not engaged in substantial gainful

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activity since May 30, 2007 – the alleged onset date. (Tr. at 12.) She found that Plaintiff had

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the following severe impairments: spasmodic torticollis, cervical herniated nucleus pulposus,

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cervical spine stenosis, nerve damage, cervical dystonia and lumbar radiculopathy. (Tr. at

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12.) The ALJ stated that Plaintiff did not have an impairment or combination of impairments

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that met or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P,

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Appendix 1 of the Commissioner’s regulations. (Tr. at 12-13.) After consideration of the

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entire record, the ALJ found that Plaintiff retained “the residual functional capacity to

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perform light work ... except the claimant can never climb ladders, ropes or scaffolds and

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occasionally climb ramps and stairs; frequently balance, stoop, kneel, crouch and crawl; and

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should avoid concentrated exposure to hazards, including heavy machinery and heights.”

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(Tr. at 13-18.) The ALJ determined that Plaintiff was able to perform past relevant work as

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a construction superintendent and truck driver. (Tr. at 18-19.) Therefore, the ALJ concluded

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that Plaintiff has not been under a disability from May 30, 2007, through the date of her

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decision. (Tr. at 19.)

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The Appeals Council declined Plaintiff’s subsequent request for review (Tr. at 1-6),

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making the ALJ’s January 2011 decision the final decision of the Commissioner. Plaintiff

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then sought judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g). On

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February 28, 2014, after having reviewed the administrative record and the arguments of the

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parties, the Court found that substantial evidence supported the ALJ’s decision to deny

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Plaintiff’s claim for disability insurance benefits and supplemental security income. The

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Court concluded that the ALJ properly discredited Plaintiff’s credibility providing clear and

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convincing reasons supported by substantial evidence; the ALJ’s error in disregarding

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Plaintiff’s wife’s statements was harmless; and the ALJ properly discounted the opinion of

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Dr. Reiser, providing specific and legitimate reasons, based on substantial evidence in the

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record. Consequently, the Court affirmed the ALJ’s decision.

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Plaintiff moves this Court to reconsider its Order dated February 28, 2014, based on

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Plaintiff’s subsequent receipt of Social Security disability benefits. Specifically, after this

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matter was fully briefed, but prior to this Court’s Order, Plaintiff received a fully favorable

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decision on a successive application for Social Security disability benefits. (Doc. 30, App.
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1.) The decision is dated November 27, 2013, and specifies a disability onset date of January

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29, 2011 – one day after the ALJ’s denial of benefits in the instant matter. (Doc. 30, App.

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1; Tr. at 7-26.)

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Pursuant to 42 U.S.C. § 405(g), “remand is warranted only if there is new evidence

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that is material and good cause for the late submission of the evidence.” Bruton v.

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Massanari, 268 F.3d 824, 827 (9th Cir. 2001). New evidence is material if it “bear[s] directly

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and substantially on the matter in dispute,” and if there is a “reasonabl[e] possibility that the

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new evidence would have changed the outcome of the ... determination.” See id. (quoting

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Booz v. Sec’y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984)).

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Where a second social security application finds a disability commencing at or near

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the time a decision on a previous application found no such disability, the subsequent finding

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may constitute new and material evidence. See Luna v. Astrue, 623 F.3d 1032, 1034-35 (9th

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Cir. 2010); Reichard v. Barnhart, 285 F.Supp.2d 728, 734 (S.D.W.Va. 2003) (holding that

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an ALJ’s decision finding disability commencing less than a week after claimant was found

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not disabled is new and material evidence). Such evidence is not necessarily determinative

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of disability as the application may involve different medical evidence, different time

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periods, and a different age classification. See Bruton, 268 F.3d at 827. When a disability,

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however, “is found upon subsequent applications on substantially the same evidentiary

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background as was considered with respect to prior applications ... the disability onset date

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might reasonably be sometime prior to the ALJ’s decision [with respect to] the prior

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applications in view of a subsequent finding of disability.” Reichard, 285 F.Supp.2d at 736

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n.9.

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The Court does not have the administrative record and, thus, cannot determine if the

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evidence adduced in the second application consisted of substantially similar evidence or if

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there were substantial changes in Plaintiff’s physical and/or mental condition subsequent to

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the denial of benefits. Nevertheless, it appears that while the instant denial of benefits was

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under review, Plaintiff filed a successive application for benefits which was granted –

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indicating an onset date one day after the initial denial. This finding warrants further
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consideration as to whether Plaintiff was actually disabled during the period of time relevant

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to Plaintiff’s first application. Furthermore, the Court finds that there is at least a reasonable

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possibility that evidence supporting disability with an onset date one day removed may be

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persuasive in changing the outcome in this case. Thus, the Court finds that the subsequent

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finding of disability constitutes new and material evidence.

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Accordingly, in light of the possible inconsistency between the first decision and the

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subsequent finding of disability related to the second application, this case will be remanded

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for further consideration and proper resolution of factual issues. See, e.g., Luna, 623 F.3d

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at 1035 (“The ‘reasonable possibility’ that the subsequent grant of benefits was based on new

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evidence not considered by the ALJ as part of the first application indicates that further

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consideration of the factual issues is appropriate to determine whether the outcome of the

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first application should be different.”); Bradley v. Barnhart, 463 F.Supp.2d 577, 580-81

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(S.D.W.Va. 2006) (stating that the “Reichard [case] stands for the proposition that an award

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based on an onset date coming in immediate proximity to an earlier denial of benefits is

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worthy of further administrative scrutiny to determine whether the favorable event should

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alter the initial, negative outcome on the claim”).

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For the reasons previously set forth,

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IT IS ORDERED that Plaintiff’s Motion for Reconsideration of the Court’s Order

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dated February 28, 2014 (Doc. 30) is GRANTED;

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IT IS FURTHER ORDERED that in light of the new and material evidence

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submitted with Plaintiff’s Motion for Reconsideration, this Court’s Order and Judgment

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entered on February 28, 2014 are VACATED;

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IT IS FURTHER ORDERED that the final decision of the Commissioner is

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VACATED, and this matter is REMANDED to the Commissioner pursuant to 42 U.S.C.

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§ 405(g) for further administrative proceedings to consider whether Plaintiff was actually

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disabled during the period of time relevant to his first application in light of the new and

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material evidence. The Clerk of the Court shall enter judgment accordingly.

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DATED this 15th day of April, 2014.

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