Loren Ray Koontz v. Carolyn W Colvin

Filing 22

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. For the foregoing reasons, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). *See Order for details.* (es)

1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION

10

11 LOREN RAY KOONTZ,
12
13

Plaintiff,
v.

14 CAROLYN W. COLVIN, Acting
Commissioner of Social

15 Security,
16

Defendant.

17
18

)
)
)
)
)
)
)
)
)
)
)
)

Case No. EDCV 13-01510-AS
MEMORANDUM OPINION AND
ORDER OF REMAND

Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED

19 that this matter is remanded
20 consistent with this Opinion.

for

further

administrative

action

21
PROCEEDINGS

22
23

On August 22, 2013, Plaintiff filed a Complaint seeking review of

24 the Commissioner's denial of Plaintiff’s application for Disability
25 Insurance Benefits. (Docket Entry No. 1).
On December 24, 2013,
26 Defendant filed an Answer and the Administrative Record (“AR”). (Docket
27 Entry Nos. 11, 12).
28

The parties have consented to proceed before a

United States Magistrate Judge.

(Docket Entry Nos. 7, 8).

1

On April 1,

1 2014, the parties filed a Joint Stipulation (“Joint Stip.”) setting
2 forth their respective positions regarding Plaintiff's claims. (Docket
3 Entry No. 17). On June 1, 2015, Defendant filed an Exhibit to the Joint
4
5

Position Statement (“Joint Stip. Exhibit”).

(Docket Entry No. 21).

The Court has taken this matter under submission without oral

6 argument. See C.D. Local R. 7-15; “Order Re: Procedures in Social
7 Security Case,” filed October 30, 2013 (Docket Entry No. 5).
8
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

9
10

On August 25, 2010, Plaintiff, a former cabinet installer (see 1 AR

11 178), filed an application for a period of disability or Disability
12 Insurance Benefits, alleging an inability to work since March 22, 2010.
13 (See 1 AR 159-65). On March 12, 2012,1 the Administrative Law Judge
14 (“ALJ”), Marti Kirby, heard testimony from Plaintiff and vocational
15
16

expert Corinne Porter. (See 1 AR 44-76).

On March 15, 2012, the ALJ

issued a decision denying Plaintiff’s application.

The ALJ determined

that Plaintiff had severe impairments –- osteoarthritis of the left

17 knee; degenerative joint disease of the right hip; degenerative disc
18 disease of the cervical spine; degenerative disc disease of the lumbar
19 spine; right radiculopathy; depression; and anxiety. The ALJ determined
2
20 that Plaintiff had the following residual functional capacity (“RFC”) :

21

the ability to perform light work with certain limitations, including:
lifting and/or carrying 20 pounds occasionally and 10 pounds frequently;

22 standing and/or walking for 4 hours out of an 8-hour workday, but no
23 more than 10 to 15 minutes at a time; a sit/stand option of 1 hour;
24
25
26
27

1

The transcript of the hearing incorrectly states the hearing
took place on March 12, 2013 (see 1 AR 44, 76). (See 1 AR 21, 151).
2

A Residual Functional Capacity (“RFC”) is what a claimant can
still do despite existing exertional and nonexertional limitations. See
20 C.F.R. § 404.1545(a)(1).

28
2

1 pushing and/or pulling unlimited; bending, stooping, balancing and
2 climbing stairs occasionally; never kneeling, squatting or crawling;
3 reaching overhead occasionally; never pushing, pulling or operating foot
4

pedals with the left lower extremity; never walking on uneven terrain,
climbing ladders, ropes or scaffolds, working at unprotected heights,

5 around moving machinery or other hazards; no repetitive movement of the
6 head or neck, either side to side or up and down; limited to work not
7 involving high levels of stress; and occasionally will miss one day of
8 work per month due to pain, depression or side effects of medication.
9
10

Finding that there were jobs that exist in the national economy that
Plaintiff could perform, the ALJ found that Plaintiff was not disabled
within the meaning of the Social Security Act.

(See 1 AR 21-36).

11
12

Plaintiff requested that the Appeals Council review the ALJ’s

13 decision.

(See 1 AR 15-17).

Plaintiff submitted the following to the

14 Appeals Council: (a) legal arguments (see 1 AR 219-21); (b) medical
15

records, specifically, reports (Orthopedic Disability/Return to Work
Assessment Narrative Report; Multiple Impairment Questionnaire) prepared

16 by consultative examiner Chirag N. Amin, M.D. on July 3, 2012 (see 1 AR
17 222-25); and (c) medical records from Kaiser Permanent dated January 20,
18 2012 to April 5, 2012, March 27, 2012 to August 15, 2012, and January
19 31, 2011 to November 14, 2012 (see 2 AR 930-1009).
20
21

On June 26, 2013, the Appeals Council denied Plaintiff’s request
for a review of the ALJ’s decision (See 1 AR 1-7).

In its denial, the

22 Appeals Council specifically declined to consider certain submitted
23 medical records: “We also looked at evidence from Chirag N. Amin, M.D.
24 and Kaiser Permanente, dated June 6, 2012 through April 1, 2013.

The

25 Administrative Law Judge decided your case through March 15, 2012. This
26

new information is about a later time.

27
28
3

Therefore, it does not affect

1 the decision about whether you were disabled beginning on or before
2 March 15, 2012.”

(1 AR 2).3

3
4

The

ALJ’s

decision

then

became

the

final

decision

of

the

Commissioner, allowing this Court to review the decision. See 42 U.S.C.

5 §§ 405(g), 1383(c).
6
7

PLAINTIFF’S CONTENTIONS

8
Plaintiff makes three challenges to the ALJ’s Decision.

9
10

In the

first claim of error, Plaintiff alleges the ALJ erred in rejecting the
opinion of the examining physician and certain portions of the opinion

11 of the treating physician. In the second claim of error, Plaintiff
12 alleges that the ALJ erred in finding Plaintiff’s testimony regarding
13 his subjective complaints not credible. In the third claim of error,
14 Plaintiff alleges that the Appeals Council erred in failing to consider
15
16

and

to

incorporate

into

the

administrative

evidence presented to the Appeals Council.

record

the

additional

(See Joint Stip. at 6-13,

16-18, 22-24).

17
18

DISCUSSION

19
20
21

After consideration of the record as a whole, the Court finds that
Plaintiff’s third claim of error has merit and warrants a remand for
further consideration. Since the Court is remanding the matter based on

22

Plaintiff’s third claim of error, the Court will not address Plaintiff’s

23 first and second claims of error.
24
25
26
27
28

3

Although the Appeals Council did incorporate into the
administrative record certain medical records, namely, Representative’s
Briefs, dated July 27, 2012 and August 15, 2012, Medical Records from
Kaiser Permanente dated January 31, 2011, January 20, 2012 to April 5,
2012 and March 27, 2012 to April 26, 2012, and a treatment note from
Ronald Lee Warnell, M.D., dated December 29, 2012 (see 1 AR 5-6) -- the
additional evidence which the Appeals Council expressly declined to
consider was not incorporated into the administrative record.
4

1 A.

The Appeals Council Failed to Consider the Additional Evidence

2

Submitted by Plaintiff.

3
4
5

Plaintiff asserts that the Appeals Council failed to consider the
additional evidence submitted by Plaintiff and to incorporate a copy of
the additional evidence into the administrative record.

(See Joint

6 Stip. at 22-24).4 Defendant asserts that the Appeals Council properly
7 declined to consider the additional evidence submitted by Plaintiff.
8 (See Joint Stip. at 24-27).
9
10
11

As an initial matter, the Court has jurisdiction to address
Plaintiff’s claim that the Appeals Council failed to consider the
additional evidence submitted by Plaintiff.

See Harman v. Apfel, 211

12 F.3d 1172, 1180 (9th Cir. 2000) (“[W]e properly may consider the
13 additional materials because the Appeals Council addressed them in the
14 context of denying Appellant’s request for Review.”).
15
16

To the extent that Plaintiff is alleging that the Appeals Council
rejected

the

additional

evidence

and

failed

to

incorporate

the

17 additional evidence in violation of various provisions of the Hallex
18 manual (see Joint Stip. at 22-24), Plaintiff is not entitled to relief.
19 See Roberts v. Commissioner, 644 F.3d 931, 933 (9th Cir. 2011)(stating
20 that the Hallex manual “‘does not carry the force of law and is not
21
22

binding upon the agency.’”).
“The Appeals Council will consider . . . any new and material

23 evidence to it which relates to the period on or before the date of the
24 administrative law judge hearing decision.” 20 C.F.R. §§ 404.976(b)(1),
25 416.1476(b).

When evidence is submitted which does not relate to the

26 period on or before the date of the ALJ’s decision, the Appeals Council
27
4

A copy of the additional evidence submitted by Plaintiff to

28 the Appeals Council has been provided to the Court. (See Docket No. 21
[“Exhibit to Joint Stipulation”]).
5

1 will return the additional evidence . . . with an explanation as to why
2 it did not accept the additional evidence[.]” Id.
3
4

A claimant does not need to show good cause before submitting new
evidence to the Appeals Council.

Brewes v. Commissioner of Social Sec.

5 Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). New evidence is material
6 if it “‘bear[s] directly and substantially on the matter in dispute,’
7 and there is a ‘reasonabl[e] possibility that the new evidence would
8 have changed the outcome of the . . . determination.’” Bruton v.
9
10
11

Massanari, 268 F.3d 824, 827 (9th Cir. 2001)(quoting Booz v. Sec’y of
Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984)).
Here, by stating that it was not considering the additional

12 evidence submitted by Plaintiff because the “new information is about a
13 later time” and therefore did not affect the disability determination
14 (see AR 2), the Appeals Council arguably was not using the proper
15

standard.

As noted above, the question for the Appeals Council was

whether the additional evidence “relates to the period on or before the

16 date of the administrative law judge hearing decision,” see 20 C.F.R. §§
17 404.976(b)(1), 416.1476(b), which in this case was March 15, 2012.
18
19
20
21

Contrary to Plaintiff’s assertion (see Joint Stip. at 23-24), it
appears

that

most

of

the

additional

evidence,

particularly

the

additional Kaiser Permanente records (see Joint Stip. Exhibit at 20148), did not relate to the period on or before March 15, 2012.

22 However, as Plaintiff contends (see Joint Stip. at 23), the Orthopedic
23 Disability/Return to Work Assessment Narrative Report and the Multiple
24 Impairment Questionnaire prepared by consultative examiner Dr. Amin (see
25 Joint Stip. Exhibit at 1-19) did relate to the period on or before March
26

15, 2012, as Dr. Amin specifically stated that the description of
Plaintiff’s symptoms and limitations applied as early as March 2010 (see

27

Joint Stip. Exhibit at 18).

28
6

1

Moreover, Dr. Amin’s reports extensively describe Plaintiff’s

2 symptoms and provide an opinion about Plaintiff’s limitations which was
3 more restrictive than the RFC found by the ALJ.
4

reports

bear

directly

and

substantially

on

Since Dr. Amin’s

Plaintiff’s

claim

of

disability, and since there is a “reasonable possibility” that Dr.

5 Amin’s reports would have changed the outcome of the ALJ’s decision, the
6 Appeals Council erred by not considering them.
7
8 B.

Remand Is Warranted

9
10

The decision whether to remand for further proceedings or order an
immediate award of benefits is within the district court’s discretion.

11 Harman, supra, 211 F.3d at 1175-78. Where no useful purpose would be
12 served by further administrative proceedings, or where the record has
13 been fully developed, it is appropriate to exercise this discretion to
14 direct an immediate award of benefits. Id. at 1179 (“[T]he decision of
15
16

whether to remand for further proceedings turns upon the likely utility
of such proceedings.”).

However, where, as here, the circumstances of

the case suggest that further administrative review could remedy the

17 Commissioner’s errors, remand is appropriate. McLeod v. Astrue, 640
18 F.3d 881, 888 (9th Cir. 2011); Harman, supra, 211 F.3d at 1179-81.
19
20

Since

the

Appeals

Council

failed

to

consider

the

additional

21 evidence submitted by Plaintiff, remand is appropriate.
22
23

Because

outstanding issues must be resolved before a determination of disability
can be made, and “when the record as a whole creates serious doubt as to
whether the [Plaintiff] is, in fact, disabled within the meaning of

24 Social Security Act,” further administrative proceedings would serve a
25 useful purpose and remedy defects. Burrell v. Colvin, 775 F.3d 1133,
26 1141 (9th Cir. 2014)(citations omitted).5
27
5

The Court has not reached any other issue raised by Plaintiff

28 except insofar as to determine that reversal with a directive for the

(continued...)
7

1

ORDER

2
3

For the foregoing reasons, the decision of the Commissioner is
reversed, and the matter is remanded for further proceedings pursuant to

4

Sentence 4 of 42 U.S.C. § 405(g).

5
6

LET JUDGMENT BE ENTERED ACCORDINGLY.

7
8 DATED:
9

June 2, 2015.
/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

5

(...continued)
immediate payment of benefits would not be appropriate at this time.
“[E]valuation of the record as a whole creates serious doubt that
Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995,
1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s
claims regarding the ALJ’s rejection of the opinion of the examining
physician and certain portions of the opinion of the treating physician
and the ALJ’s finding that Plaintiff’s testimony was not credible.
[[Because this matter is being remanded for further consideration, these
issues should also be considered on remand.]]
8