Huppert v. Astrue

Filing 21

MEMORANDUM DECISION AND ORDER granting 1 Petition for Review. This action shall be REMANDED to the Commissioner for further proceedings consistent with this opinion. This Remand shall be considered a sentence six remand, consistent with 42 U.S.C. § 405(g). Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RUSSELL ZANE HUPPERT,
Petitioner,

Case No. 2:11-cv-00584-CWD

v.

MEMORANDUM DECISION AND
ORDER

MICHAEL J. ASTRUE,
Commissioner of Social Security
Administration,
Respondent.

INTRODUCTION
Currently pending before the Court is Petitioner Russell Zane Huppert’s (“Petitioner”)
Petition for Review of the Respondent’s denial of social security benefits, filed November 28,
2011. (Dkt. 1.) Petitioner seeks a remand to the Commissioner for additional administrative
proceedings under sentence six of 42 U.S.C. § 405(g) on the grounds that medical records
developed after the administrative hearing constitute new and material evidence. The Court has
reviewed the Petition for Review and the Answer, the parties’ memoranda, and the
administrative record (“AR”), and for the reasons that follow, will remand to Commissioner with
further instructions.

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PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on July 6, 2009, alleging disability beginning December 20, 2008. The
application was denied initially and on reconsideration, and a hearing was held on August 3,
2010, before Administrative Law Judge (“ALJ”) Marie Palachuk. After hearing testimony from a
vocational expert, medical experts, Petitioner, and Petitioner’s wife, ALJ Palachuk issued a
decision finding Petitioner not disabled on September 17, 2010.
As to Petitioner’s specific conditions, ALJ Palachuk found that Petitioner’s asthma,
depressive disorder, and posttraumatic stress disorder were not severe within the meaning of the
Regulations. (AR 14-15.) ALJ Palachuk did find Petitioner’s ulcerative colitis, degenerative
changes of the left knee, and low back pain severe within the meaning of the Regulations, but
also found that Petitioner’s impairments did not meet or equal the criteria for the listed
impairments. (AR 14-15.) At step four of the sequential analysis, the ALJ found that Petitioner’s
“medically determinable impairments could reasonably be expected to cause some of the alleged
symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting
effects of these symptoms” were not wholly credible because “the medical evidence of record
coupled with the claimant’s admissions of improvement do not support the degree of severity
and frequency alleged.” (AR 16.)
After the administrative hearing, Petitioner continued psychiatric treatment, and on
August 15, 2011, had surgery for a total abdominal colectomy with end ileostomy. (AR 13171319, 1387.)
Petitioner timely requested review by the Appeals Council, which denied his request on
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October 27, 2011. Petitioner appealed that final decision to this Court. The Court has jurisdiction
to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g), and the parties have consented to
the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
LEGAL STANDARD
Under sentence six of 42 U.S.C. § 405(g), as long as certain conditions are met, a district
court may remand a Social Security case “in light of additional evidence without making any
substantive ruling as to the correctness of the Secretary’s decision . . . .” Melkonyan v. Sullivan,
501 U.S. 89, 100 (1991). To justify a remand, Petitioner must demonstrate (1) that the proffered
evidence is new; (2) that the evidence is material to the ALJ’s decision; and (3) that he has good
cause for failing to previously present the evidence to the ALJ. 42 U.S.C. § 405(g).
DISCUSSION
Petitioner asks the Court to remand his claim for benefits under sentence six of 42
U.S.C. § 405(g), because he believes that the psychiatric and medical evidence reflected in
medical records prepared by his treatment providers after the administrative hearing confirm “the
severity of the colitis” and demonstrate that he was “in the severe range” for depression. (Dkt. 18
at 4, 5.) The Commissioner argues that if the new “evidence supports a finding of disability as
Petitioner implies, his remedy is to file a new application if he has not already done so.” (Dkt. 19
at 5.) However, if the new evidence presented by Petitioner meets the 42 U.S.C. § 405(g)
requirements, a new application is not necessary.
The parties agree that the evidence offered by Petitioner is new. (Dkt. 19 at 8.) Further,
Petitioner has good cause for failing to previously submit the evidence because the evidence was
not previously available. Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (“If new
information surfaces after the Secretary’s final decision and the claimant could not have obtained
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that evidence at the time of the administrative proceeding, the good cause requirement is
satisfied.”). The Commissioner admits that Petitioner “could not have obtained the evidence in
question prior to the ALJ issuing [her] decision, as the treatment reported within occurred nearly
a year after the ALJ issued [her] decision.” (Dkt. 19 at 8.) Therefore, Petitioner has good cause
for failing to previously supply the evidence because the evidence was not available. Thus, the
only issue is whether the evidence is material.
Under section 405(g), evidence is material only if (1) it directly and substantially
addresses the disputed matter; and (2) there is a reasonable possibility that the new evidence
would have changed the ALJ’s decision. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).
Evidence directly and substantially addresses the disputed matter if the evidence relates
to a condition that was “significantly at issue” at the time of the administrative hearing. Id.
(holding that the petitioner failed to demonstrate a reasonable possibility that new evidence of
herniated discs would have changed the outcome of the ALJ hearing, because at the hearing the
petitioner did not submit any medical evidence that connected her symptoms to a back problem).
Here, Petitioner argues that the new evidence relates to his colitis and depression. At the
administrative hearing, Petitioner had submitted medical evidence connecting his symptoms to
colitis and depression. (AR 14-17.) Therefore, these conditions were significantly at issue at the
time of the hearing.
There is a reasonable possibility that new evidence would have changed the ALJ’s
decision when the evidence provides a medical basis for a petitioner’s previously unsubstantiated
allegations of disabling symptoms. Wainwright v. Sec’y of Health & Human Servs., 939 F.2d
680, 683 (9th Cir. 1991). In Wainwright, the ALJ denied the petitioner benefits because the
petitioner’s allegations of pain were not supported by the medical evidence. Id. However, an
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MRI scan taken after the administrative hearing revealed a condition that potentially provided a
medical basis for the petitioner’s allegations. Id. Since the MRI evidence supported the
petitioner’s allegations, and benefits were denied because of the lack of medical support, the new
MRI evidence had a reasonable possibility of changing the ALJ’s decision. Id.
Here, the new evidence relating to Petitioner’s colitis may provide a medical basis for the
symptoms he alleged; therefore, there is a reasonable possibility that the evidence would have
changed the ALJ’s decision. Indeed, Petitioner was denied benefits in part because the ALJ
found that, “[a]s to colitis, the medical evidence of record coupled with [Petitioner’s] admissions
of improvement do not support the degree of severity and frequency alleged,” and that the
medical records “do not show evidence of significant worsening.” (AR 16-17.) The ALJ
specifically relied on the medical expert, who testified that the medical record did not support a
finding of frequent stools, showed a normal abdominal exam, and demonstrated “only mildly
acute chronic colitis.” (AR 16.)
However, after the hearing, “[g]iven the severity of [Petitioner’s] symptoms and
refractory disease,” on August 2, 2011, Petitioner’s physicians decided to “proceed with an
urgent total abdominal colectomy.” (AR 1455.) This medical evidence may support Petitioner’s
allegations of severity and frequency. Since the ALJ found that Petitioner’s allegations were not
wholly credible because they were not supported by medical evidence, if the record had
contained this new evidence, the ALJ may have decided that Petitioner’s allegations were
credible or that Petitioner’s conditions met listing level severity. Therefore, there is a reasonable
possibility that this new evidence would have changed the ALJ’s decision. Ultimately, because
this colitis evidence directly and substantially addresses the disputed matter and there is a

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reasonable possibility that the evidence would have changed the ALJ’s decision, the evidence is
material.
There is not, however, a reasonable possibility that the new evidence of Petitioner’s
depression would have changed the ALJ’s decision. Petitioner states that “the new VA records
which detail Petitioner’s continued psychiatric treatment and his GAF score .... establish[] that
his major depressive disorder [was] severe, and could even be at listing level give[n] his GAF of
40-50.” (Dkt. 18 at 6.) These records are not significantly different than records already
presented to the ALJ. The administrative hearing record contained evidence that Petitioner had
multiple psychiatric and counseling sessions beginning at least in August of 2009 up until the
hearing. (See AR 952, 1129.) The new medical records establishing that psychiatric care
continued after the hearing do not provide additional evidence of Petitioner’s mental health
condition; the administrative record already established that Petitioner was undergoing ongoing
psychiatric treatment.
At the time of the administrative hearing, Petitioner’s medical records contained GAF
scores within the 40-50 range: on February 25, 2009, his GAF score was 48, and on August 28,
2009, his GAF score was 50. (AR 457, 696.) Because the administrative hearing record already
demonstrated GAF scores within the 40-50 range and demonstrated ongoing, long term
psychiatric treatment, the new evidence is not sufficiently different from evidence already
presented for there to be a reasonable possibility that it would have changed the ALJ’s decision.
Therefore, even though the depression evidence directly and substantially addresses the disputed
matter, it is not material.
Having fully reviewed the record, the Court finds that Petitioner’s case should be
remanded under sentence six of 42 U.S.C. § 405(g) for consideration of the new evidence of
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Petitioner’s colitis treatment. The new evidence of Petitioner’s psychiatric treatment, however,
need not be considered.

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Plaintiff’s Petition for Review (Dkt. 1) is GRANTED.

2)

This action shall be REMANDED to the Commissioner for further proceedings
consistent with this opinion.

3)

This Remand shall be considered a “sentence six remand,” consistent with 42
U.S.C. § 405(g).

February 15, 2013

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