Michael C Sanders v. Carolyn W Colvin

Filing 15

MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. See document for details. (yb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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MICHAEL C. SANDERS,

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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social
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Security,
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Defendant.
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_____________________________________)

Case No. EDCV 13-659 AJW
MEMORANDUM OF DECISION

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Plaintiff filed this action seeking reversal of the decision of defendant, the Acting Commissioner of

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the Social Security Administration (the “Commissioner”), denying plaintiff’s application for disability

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insurance benefits and supplemental security income benefits. The parties have filed a Joint Stipulation

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(“JS”) setting forth their contentions with respect to each disputed issue.

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Administrative Proceedings

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The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation.

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[See JS 2]. In an August 12, 2011 written hearing decision that constitutes the Commissioner’s final

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decision in this action, the Administrative Law Judge (“ALJ”) concluded that plaintiff was not disabled

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because he retained the residual functional capacity to perform jobs that exist in significant numbers in the

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national economy. [JS 2; Administrative Record (“AR”) 11-19].

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Standard of Review

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The Commissioner’s denial of benefits should be disturbed only if it is not supported by substantial

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evidence or is based on legal error. Stout v. Comm’r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.

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2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Substantial evidence” means “more than

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a mere scintilla, but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir.

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2005). “It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

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Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks omitted). The court is

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required to review the record as a whole and to consider evidence detracting from the decision as well as

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evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006);

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Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). “Where the evidence is susceptible to more than

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one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.”

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Thomas, 278 F.3d at 954 (citing Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.

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1999)).

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Discussion

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Plaintiff contends that in support of his request for Appeals Council review of the ALJ’s decision,

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he submitted “new and material evidence” to the Appeals Council in the form of a letter from plaintiff’s

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treating physician, Ramila Duwal, M.D. of Riverside-San Bernardino County Indian Health, Inc. [JS 3; see

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AR 645]. Plaintiff contends that the letter that “establishes a longitudinal relationship with his treating

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physician as well as plaintiff’s treating physician’s opinion that plaintiff has not been able to hold a job .

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. . .” [JS 3]. Plaintiff contends that the Appeals Council erred in failing to address that evidence and to

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remand the case to allow the ALJ “to properly review and assess this extremely relevant and probative

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letter,” and that “[t]he Appeals Council improperly rejected [Dr. Ruwal’s] opinion regarding plaintiff’s

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ability to hold a job.” [JS 3, 5].

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The letter from Dr. Duwal that plaintiff submitted to the Appeals Council is dated October 13, 2011.

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[AR 645]. It states that plaintiff “has been followed in this clinic since 2003, that Dr. Duwal has been

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plaintiff’s medical doctor since 2007, and that plaintiff

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has a diagnosis of Major Depressive disorder with psychotic features and also Psychosis

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NOS. He has not been able to hold a job in all the years that I have treated him because of
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his continued symptoms. If there is any other questions [sic] please call the office. [AR

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645].

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In its decision denying plaintiff’s request for review, the Appeals Council stated that it had

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considered Dr. Duwal’s October 13, 2011 letter, considered whether the ALJ’s decision was “contrary to

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the weight of the evidence of record,” and found that Dr. Duwal’s letter “does not provide a basis for

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changing” the ALJ’s decision. [See AR 1-2, 4].

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When “new and material” evidence is presented to the Appeals Council,

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the Appeals Council shall consider the additional evidence only where it relates to the period

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on or before the date of the administrative law judge hearing decision. The Appeals Council

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shall evaluate the entire record including the new and material evidence submitted if it

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relates to the period on or before the date of the administrative law judge hearing decision.

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It will then review the case if it finds that the administrative law judge's action, findings, or

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conclusion is contrary to the weight of the evidence currently of record.

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20 C.F.R. §§ 404.970, 416.1470.

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The regulations do not require the Appeals Council to make specific findings to justify a conclusion

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that the ALJ’s decision is or is not “contrary to the weight of the evidence currently of record.”

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Furthermore, a federal court “do[es] not have jurisdiction to review a decision of the Appeals Council

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denying a request for review of an ALJ’s decision” because such a decision “is a non-final agency action.”

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Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). When the Appeals Council

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denies review, “the ALJ’s decision becomes the final decision of the Commissioner, and the district court

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reviews that decision for substantial evidence, based on the record as a whole,” which includes “evidence

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submitted to and considered by the Appeals Council.” Brewes, 682 F.3d at 1161-1162. Accordingly, even

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if the Appeals Council erred in failing to properly consider or address Dr. Duwal’s letter, this court lacks

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jurisdiction to review the Appeals Council’s decision or to reverse the ALJ’s decision based on defects in

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the Appeals Council’s decision.

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Plaintiff contends that Dr. Duwal’s letter shows that he had a longitudinal treatment relationship with

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plaintiff, diagnosed plaintiff with major depressive disorder and psychosis, and opined that plaintiff could

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not hold a job. [JS 3-4]. When considering new and material evidence that was not presented to the ALJ
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but was submitted to the Appeals Council, the issue is whether the ALJ’s decision is free of legal error and

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is supported by substantial evidence based on the record as a whole, including—but not limited to—any new

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and material evidence presented to the Appeals Council. See Brewes, 682 F.3d at 1161-1163.

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has not argued or shown that based on the record as a whole, including Dr. Duwal’s letter, the ALJ’s

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decision is not supported by substantial evidence or contains legal error, and the Court will not analyze

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issues that plaintiff has waived by not raising them. See Bergfeld v. Barnhart, 361 F. Supp. 2d 1102, 1110

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(D. Ariz. 2005) ("A reviewing federal court will only address the issues raised by the claimant in his appeal

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from the ALJ's decision. A federal court ‘may set aside a denial of disability benefits only if it is not

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supported by substantial evidence or if it is based on legal error.’”) (citing Lewis v. Apfel, 236 F.3d 503,

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517 n.13 (9th Cir.2001) and quoting Thomas, 278 F.3d at 954)); see Warre v. Comm’r of Soc. Sec. Admin.,

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439 F.3d 1001, 1007 (9th Cir. 2006) (declining to consider an issue that the plaintiff-appellant raised on

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appeal to the Ninth Circuit but had waived by failing to raise it before the district court). It is difficult to

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avoid the conclusion that plaintiff’s exclusive focus on the Appeals Council’s decision, which is clearly and

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unequivocally non-reviewable, is a calculated attempt to avoid addressing the merits of the ALJ’s decision

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in light of the record as a whole or to impermissibly shift the burden to the Commissioner to affirmatively

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demonstrate that Dr. Duwal’s letter does not warrant reversal of the ALJ’s decision.

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Conclusion
For the reasons stated above, the Commissioner's decision is supported by substantial evidence and
is free of legal error. Therefore, the Commissioner’s decision is affirmed.

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IT IS SO ORDERED.

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April 23, 2014

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Plaintiff

_________________________
ANDREW J. WISTRICH
United States Magistrate Judge

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