Kyniston v. Commissioner Social Security Administration

Filing 27

Opinion and Order. The Commissioner's decision is reversed and remanded for further administrative proceedings. Signed on 3/20/2015 by Magistrate Judge Thomas M. Coffin. (plb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JANET R. KYNISTON,

Case No. 2:14-cv-00049-TC
OPINION AND ORDER

Plaintiff,
v.

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
COFFIN, Magistrate Judge:
Plaintiff brings this action pursuant to the Social Security
Act (Act), U.S.C. § 405(g), to obtain judicial review of the final
decision of the Commissioner of Social

Security

(Commissioner)

denying her application for disability insurance benefits
under

the

Act.

Upon

review

of

the

record

and

the

( DIB)

parties'

submissions, the Commissioner's decision is reversed and remanded
for further proceedings.
BACKGROUND
On January 8,

2010, plaintiff protectively filed a Title II

application for DIB, asserting disability beginning May 2, 2001,

1 - OPINION AND ORDER

through December 31,

2005,

depression,

fibromyalgia,

anxiety,

the date last insured
osteoarthritis,

(DLI),

due to

degenerative

joint disease, post traumatic stress, migraines, scoliosis, sleep
apnea,

undifferentiated spondylitis,

right hip fracture,

right hip resurfacing,

surface stenosis,

fatigue,

left

muscle stiffness,

Hoffman's disease, poor concentration, severe sweating, immediate
and

post

exterior

pain,

low

back pain,

bladder, and extreme hip/leg pain.

thyroid

nodules,

weak

Tr. 24, 158.

Plaintiff's claim was denied initially on April 8, 2010, and
upon reconsideration on September 3, 2010.

Tr. 24.

Thereafter,

plaintiff filed a written request for hearing on October 26, 2010,
and appeared and testified at a hearing before an Administrative
Law Judge (ALJ) on November 17, 2011.

Id.

In his opinion of March

7, 2012, the ALJ found that through the DLI, "[plaintiff] had the
following medically determinable impairments:
headaches,

and polyarthritic joint pain."

diarrhea,

Tr.

26.

migraine

However, the

ALJ found that the objective medical evidence failed to support
plaintiff's

alleged

expiration of the

inability

DLI,

to

work

and

that

prior

to

the

all of her impairments were "either not

medically determinable or non-severe."

Tr. 27.

DISCUSSION
Plaintiff argues that several documents that demonstrate her
disability were left out of the administrative record and should be
considered to establish her disability during the period when she

2 - OPINION AND ORDER

was

still insured.

Specifically,

Pl.'s Mem.

plaintiff

in Supp.

argues

that

of Pet.

the

for Review 7.

functional

capacity

assessment from Suzanne Kelly, PT, CEAS, dated February 11, 2011,
and letters from Patrick Barfield, F.N.P., dated February 3, 2011,
and Dr. Fred Stark, M.D., dated November 16, 2010 (ECF No. 20-1 at
24-34),

"clearly

show

that

had

[she]

debilitating

medical

conditions during the time in question, 2001 to 2005" and should be
considered.

Id.

at

12.

Plaintiff

argues

that

once

the

new

evidence is considered, the court should reverse the decision of
the Commissioner and remand for benefits. 1

Id. at 15.

Defendant concedes that plaintiff has submitted new evidence
to this court that is not in the administrative record (see ECF No.
20, Attach.

1-4).

Def.'s Br.

and Mot.

for Remand 2.

Defendant

also concedes that the evidence is new and material and that good
cause exists for the evidence to be missing from the administrative
record.

Id.

Defendant, however,

argues that "this court should

merely order the Commissioner to consider the new and material
evidence"

and

"if

a

new

hearing

is

regulations, the ALJ will conduct one."

1

appropriate

under

the

Id.

Plaintiff also asserts that her former attorney "failed to
properly represent her prior to and during the ALJ hearing" andJ
therefore, moves the court to deny any request for payment made by
her former attorney.
Id. at 2.
The record reveals that any
payment due to plaintiff's former attorney would be contingent upon
a favorable outcome in the case. Tr. 99. Because plaintiff's case
is remanded for further proceedings, this issue is not yet ripe.
As such, I reserve judgment on plaintiff's motion to deny payment
of her former attorney's fees until a final disposition is reached.
3·- OPINION AND ORDER

"The decision whether to remand a case for additional evidence
or simply to award benefits is within the discretion of the court."
Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)

(citing Stone

v.

The decision

Heckler,

761

F.2d 530,

533

(9th Cir.

1985)).

whether to remand a case for further proceedings turns upon the
likely utility of such proceedings.
1172,

1179

(9th ·cir.

2000)

appropriate in most cases.

Harman v.

Remand for

Apfel,

F.3d

further proceedings is

Benecke v. Barnhart, 379 F.3d 587, 595

(9th Cir. 2004); Moisa v. Barnhart 367 F. 3d 882, 886-87
2004).

211

(9th Cir.

However, where new proceedings would simply serve to delay

the receipt of benefits and would not add to the existing findings,
an award of benefits is appropriate.

McAllister v. Sullivan, 888

F.2d 599, 603 (9th Cir. 1989)
The

Supreme

Court

has

held

that

sentences

four

and

six

prescribe the only two kinds of remands allowed under of 42 U.S.C.
§

405(g).

Melkonyan v.

Sullivan,

501 U.S.

89,

101-03

(1991).

Remands under sentence four must be based on "the pleadings and
transcript

of

record."

42

U.S.C.

§

405 (g) (Sentence

Four).

Further, with a sentence four remand, the court rules on whether
the Commissioner properly considered the claimant's application
for benefits.

Flores v. Shalala, 49 F. 3d 562, 568 (9th Cir. 1995).

Under sentence six, by contrast, when there is a "failure to
incorporate [new] evidence into the record in a prior proceeding,"
the

court may remand without making a

4 - OPINION AND ORDER

determination as

to the

"correctness
Melkonyan,
case

in

of

the

501 U.S.

light

of

Secretary's

at 100.
new

decision."

quoting

I d. ,

In determining whether to remand a

evidence

under

sentence

six,

the

court

examines both whether the new evidence is material to a disability
determination and whether a

claimant

has

shown good cause

failing to present the new evidence to the ALJ earlier.
Massanari,

276 F.3d 453,

462

(9th Cir.

2001).

Mayes v.

The claimant has

the burden of demonstrating materiality and good cause.
To be material under§ 405(g),
"directly and

substantially

on

the

for

Id.

the new evidence must bear
matter

quoting Ward v. Schweiker, 686 F.2d 762, 764

in

dispute."

Id.,

(9th Cir. 1982); Luna

v. Astrue, 623 F.3d 1032, 1034 (9th Cir. 2010).

The claimant must

also demonstrate that there is a reasonable possibility that

~he

new evidence would have changed the outcome of the administrative
hearing.

Mayes,

276 F.3d at 970;

Luna,

623 F.3d at 1034.

"To

demonstrate good cause, the claimant must demonstrate that the new
evidence was unavailable earlier."

Mayes, 276 F. 3d at 971.

Here, plaintiff submitted new evidence to this court that is
not in the administrative record and was not considered by the ALJ
in the prior proceeding.
applies here.

The Commissioner concedes that the evidence is

new and material,
and

that

good

Thus, sentence six of 42 U.S.C. § 405(g)

as contemplated by sentence six of the Act,

cause

administrative record.

5 - OPINION AND ORDER

exists

for

not

including

it

in

the

As such, plaintiff's burden of proving

materiality and good cause,
405 (g)

requires,

is

as

sentence

satisfied.

six of

However,

42

because

U.S.C.
the

§

ALJ' s

dec is ion was based largely on the lack of objective medical
evidence

to

support

evidence

is

now

determination
Melkonyan,
As

to

consideration
decision.

available,
to

the

this

alleged disability,
court

correctness

of

declines
the

and

to

ALJ' s

new

make

a

decision.

501 U.S. at 100.

such,

pursuant

as

plaintiff's

the

case

sentence
of

the

is

remanded

six
new

of

42

evidence

for

further

u.s.c.
and

§

proceedings,
405(g),

issuance

of

a

for
new

Moreover, no judgment is issued at this time and this

court retains jurisdiction of the matter until after postremand
agency proceedings have been completed and their results filed
with the court.

See Shalala v.

Schaefer,

509 U.S.

292,

297

( 1993) .
CONCLUSION
The Commissioner's decision is REVERSED and REMANDED for
further administrative proceedings consistent with this opinion.
IT IS SO ORDERED.
Dated this --~£2- day of March 2015.

THOMAS

6 - OPINION AND ORDER