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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 MICHAEL C. SANDERS, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social ) Security, ) ) Defendant. ) _____________________________________) Case No. EDCV 13-659 AJW MEMORANDUM OF DECISION 17 18 Plaintiff filed this action seeking reversal of the decision of defendant, the Acting Commissioner of 19 the Social Security Administration (the “Commissioner”), denying plaintiff’s application for disability 20 insurance benefits and supplemental security income benefits. The parties have filed a Joint Stipulation 21 (“JS”) setting forth their contentions with respect to each disputed issue. 22 Administrative Proceedings 23 The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. 24 [See JS 2]. In an August 12, 2011 written hearing decision that constitutes the Commissioner’s final 25 decision in this action, the Administrative Law Judge (“ALJ”) concluded that plaintiff was not disabled 26 because he retained the residual functional capacity to perform jobs that exist in significant numbers in the 27 national economy. [JS 2; Administrative Record (“AR”) 11-19]. 28 1 Standard of Review 2 The Commissioner’s denial of benefits should be disturbed only if it is not supported by substantial 3 evidence or is based on legal error. Stout v. Comm’r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 4 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Substantial evidence” means “more than 5 a mere scintilla, but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 6 2005). “It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 7 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks omitted). The court is 8 required to review the record as a whole and to consider evidence detracting from the decision as well as 9 evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 10 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). “Where the evidence is susceptible to more than 11 one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” 12 Thomas, 278 F.3d at 954 (citing Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 13 1999)). 14 Discussion 15 Plaintiff contends that in support of his request for Appeals Council review of the ALJ’s decision, 16 he submitted “new and material evidence” to the Appeals Council in the form of a letter from plaintiff’s 17 treating physician, Ramila Duwal, M.D. of Riverside-San Bernardino County Indian Health, Inc. [JS 3; see 18 AR 645]. Plaintiff contends that the letter that “establishes a longitudinal relationship with his treating 19 physician as well as plaintiff’s treating physician’s opinion that plaintiff has not been able to hold a job . 20 . . .” [JS 3]. Plaintiff contends that the Appeals Council erred in failing to address that evidence and to 21 remand the case to allow the ALJ “to properly review and assess this extremely relevant and probative 22 letter,” and that “[t]he Appeals Council improperly rejected [Dr. Ruwal’s] opinion regarding plaintiff’s 23 ability to hold a job.” [JS 3, 5]. 24 The letter from Dr. Duwal that plaintiff submitted to the Appeals Council is dated October 13, 2011. 25 [AR 645]. It states that plaintiff “has been followed in this clinic since 2003, that Dr. Duwal has been 26 plaintiff’s medical doctor since 2007, and that plaintiff 27 has a diagnosis of Major Depressive disorder with psychotic features and also Psychosis 28 NOS. He has not been able to hold a job in all the years that I have treated him because of 2 1 his continued symptoms. If there is any other questions [sic] please call the office. [AR 2 645]. 3 In its decision denying plaintiff’s request for review, the Appeals Council stated that it had 4 considered Dr. Duwal’s October 13, 2011 letter, considered whether the ALJ’s decision was “contrary to 5 the weight of the evidence of record,” and found that Dr. Duwal’s letter “does not provide a basis for 6 changing” the ALJ’s decision. [See AR 1-2, 4]. 7 When “new and material” evidence is presented to the Appeals Council, 8 the Appeals Council shall consider the additional evidence only where it relates to the period 9 on or before the date of the administrative law judge hearing decision. The Appeals Council 10 shall evaluate the entire record including the new and material evidence submitted if it 11 relates to the period on or before the date of the administrative law judge hearing decision. 12 It will then review the case if it finds that the administrative law judge's action, findings, or 13 conclusion is contrary to the weight of the evidence currently of record. 14 20 C.F.R. §§ 404.970, 416.1470. 15 The regulations do not require the Appeals Council to make specific findings to justify a conclusion 16 that the ALJ’s decision is or is not “contrary to the weight of the evidence currently of record.” 17 Furthermore, a federal court “do[es] not have jurisdiction to review a decision of the Appeals Council 18 denying a request for review of an ALJ’s decision” because such a decision “is a non-final agency action.” 19 Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). When the Appeals Council 20 denies review, “the ALJ’s decision becomes the final decision of the Commissioner, and the district court 21 reviews that decision for substantial evidence, based on the record as a whole,” which includes “evidence 22 submitted to and considered by the Appeals Council.” Brewes, 682 F.3d at 1161-1162. Accordingly, even 23 if the Appeals Council erred in failing to properly consider or address Dr. Duwal’s letter, this court lacks 24 jurisdiction to review the Appeals Council’s decision or to reverse the ALJ’s decision based on defects in 25 the Appeals Council’s decision. 26 Plaintiff contends that Dr. Duwal’s letter shows that he had a longitudinal treatment relationship with 27 plaintiff, diagnosed plaintiff with major depressive disorder and psychosis, and opined that plaintiff could 28 not hold a job. [JS 3-4]. When considering new and material evidence that was not presented to the ALJ 3 1 but was submitted to the Appeals Council, the issue is whether the ALJ’s decision is free of legal error and 2 is supported by substantial evidence based on the record as a whole, including—but not limited to—any new 3 and material evidence presented to the Appeals Council. See Brewes, 682 F.3d at 1161-1163. 4 has not argued or shown that based on the record as a whole, including Dr. Duwal’s letter, the ALJ’s 5 decision is not supported by substantial evidence or contains legal error, and the Court will not analyze 6 issues that plaintiff has waived by not raising them. See Bergfeld v. Barnhart, 361 F. Supp. 2d 1102, 1110 7 (D. Ariz. 2005) ("A reviewing federal court will only address the issues raised by the claimant in his appeal 8 from the ALJ's decision. A federal court ‘may set aside a denial of disability benefits only if it is not 9 supported by substantial evidence or if it is based on legal error.’”) (citing Lewis v. Apfel, 236 F.3d 503, 10 517 n.13 (9th Cir.2001) and quoting Thomas, 278 F.3d at 954)); see Warre v. Comm’r of Soc. Sec. Admin., 11 439 F.3d 1001, 1007 (9th Cir. 2006) (declining to consider an issue that the plaintiff-appellant raised on 12 appeal to the Ninth Circuit but had waived by failing to raise it before the district court). It is difficult to 13 avoid the conclusion that plaintiff’s exclusive focus on the Appeals Council’s decision, which is clearly and 14 unequivocally non-reviewable, is a calculated attempt to avoid addressing the merits of the ALJ’s decision 15 in light of the record as a whole or to impermissibly shift the burden to the Commissioner to affirmatively 16 demonstrate that Dr. Duwal’s letter does not warrant reversal of the ALJ’s decision. 17 18 19 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. 20 21 IT IS SO ORDERED. 22 23 April 23, 2014 24 25 Plaintiff _________________________ ANDREW J. WISTRICH United States Magistrate Judge 26 27 28 4

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