Lofgran v. Commissioner Social Security Administration
Filing
35
OPINION & ORDER: Plaintiff's motion to remand 31 is granted. This case is remanded to the Commissioner for consideration of new evidence pursuant to sentence six of 42 U.S.C. § 405(g). This Court will retain jurisdiction and refrain from entering a final judgment until the Commissioner returns with a new decision reflecting the inclusion and consideration of the new records. Signed on 2/14/2018 by Judge Marco A. Hernandez. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHRIS LOFGRAN,
No. 3:16-cv-01375-HZ
Plaintiff,
v.
NANCY BERRYHILL, Acting
Commissioner of Social Security,
George J. Wall
1336 East Burnside Street, Suite 130
Portland, Oregon 97214
Attorney for Plaintiff
Billy J. Williams
UNITED STATES ATTORNEY
District of Oregon
Renata Gowie
ASSISTANT UNITED STATES ATTORNEY
1000 S.W. Third Ave., Suite 600
Portland, Oregon 97204-2902
1 - OPINION & ORDER
OPINION & ORDER
Ryan Lu
SPECIAL ASSISTANT UNITED STATE ATTORNEY
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Chris Lofgran filed this action seeking judicial review of the Commissioner's
final decision to deny disability insurance benefits (DIB) and supplemental security income
(SSI). In an October 31, 2017 Order, I denied Plaintiff's motion to supplement the record with
additional evidence. ECF 30. Now, Plaintiff moves to remand the action back to the
Commissioner pursuant to Sentence Six of 42 U.S.C. § 405(g) to allow the Commissioner to
consider the evidence. I grant the motion.
Four documents are at issue in the motion: (1) a February 23, 2015 opinion letter from
Matt Lauzon, LCSW, Plaintiff's primary therapist; (2) a March 2, 2015 letter from Dr. Rachel
Landon, M.D., Plaintiff's ophthalmologist; (3) an April 9, 2015 letter from Dr. Alexandra
Choban, O.D., Plaintiff's optometrist; and (4) an April 30, 2015 letter from Lydia Radke, LCSW,
Plaintiff's probation officer. Pl.'s Mot. to Remand, Exhs. A-D, ECF 31.
Defendant opposes the motion, contending that the new evidence is not material and there
is no good cause for failing to previously submit the documents into the record. See 42 U.S.C. §
405(g) (court may order Commissioner to take additional evidence upon a showing that the new
evidence is material and there is good cause for the failure to incorporate such evidence into the
record in a prior proceeding); Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) ("in
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determining whether to remand a case in light of new evidence, the court examines both whether
the new evidence is material to a disability determination and whether a claimant has shown
good cause for having failed to present the new evidence to the ALJ earlier.").
To be material under § 405(g), "the new evidence must bear directly and substantially on
the matter in dispute." Id. (internal quotation marks omitted). Plaintiff must also show that there
is a "reasonable possibility that the new evidence would have changed the outcome of the
administrative hearing." Id. (internal quotation marks omitted).
At step two of the sequential analysis, the Administrative Law Judge found Plaintiff's eye
disorder and mental health disorder not severe. Tr. 21-22. The first document at issue in this
motion is a February 23, 2015 letter from Plaintiff's treating therapist. Pl.'s Mot, Ex. A.
Although the letter is dated after the ALJ hearing, the period of treatment was before the hearing.
The letter documents Plaintiff's bipolar disorder and anxiety disorder. Id. Lauzon also opines
that due to these conditions, Plaintiff would do better working only part-time. Plaintiff notes that
an ability to work only part-time renders a claimant not employable. See Tr. 53 (vocational
expert testimony on this issue). Thus, Plaintiff argues, the letter is material because it relates to
treatment records the ALJ considered in the disability analysis and it could affect the
determination of disability. Plaintiff makes the same argument regarding the letter from his
probation officer who explains that a probationer must have documentation of a severe mental
illness with psychoses to be on her caseload, Plaintiff provided documentation of Bipolar I, and
that the information he shared and his presentation in her office were consistent with the
diagnosis and confirmed he met the proper criteria. Pl.'s Mot., Ex. D.
Plaintiff's ophthalmologist provides a summary of his eye issues. Id., Ex. B. Dr. Landon
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recites his diagnoses of amblyopia of the right eye, strabismus status post surgery with residual
esotropia and left hypertropia, and hyperopic astigmatism. Id. The hyperopic astigmatism is
corrected with glasses. Id. But, with the other conditions, Plaintiff is bothered by constant
double vision which is not relieved by prism glasses. Id. As a result, he has difficulty reading,
even for short periods of time, he develops migraines from eye strain when he tries to read, and
he is unable to drive at night. Id. Plaintiff's optometrist provided similar information about
Plaintiff's condition, noting its unusualness which causes constant double vision not relieved by
prism glasses. Id., Ex. C. He suffers from eye strain and has developed migraines as a result. Id.
He struggles to read or concentrate on any tasks that require attention and is unable to drive
confidently for any length of time. Id.
The ALJ cited to medical records concerning Plaintiff's eye disorder in his step two
determination. Tr. 21 (citing to Ex. 10F, Tr. 536-45). Ophthalmology and optometry records are
also present within the 100+ pages of records from Kaiser Permanente. Tr. 252-304, 412-535.
Plaintiff argues that each of the jobs the vocational expert testified that Plaintiff could perform is
inconsistent with his visual limitations as described by the two treating sources. Thus, these two
letters are material because they relate to treatment records the ALJ considered in the disability
analysis and they could affect the determination of disability.
Defendant argues that the new evidence is not material because the letters are all dated
after the period of disability considered by the ALJ which ended January 16, 2015. But, the
letters from the therapist and the two treating doctors all address treatment provided before
January 16, 2015. While the probation officer's letter is less clear about when Plaintiff entered
her caseload, given that Plaintiff discussed his arrests at the hearing and was no longer in jail, an
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inference is created that Plaintiff was on probation before the hearing and thus, Radke's letter
presumably relates to the time period before January 16, 2015.
Defendant also makes several arguments addressed to each document about that
document's lack of materiality. But, these are essentially merits arguments meaning the
arguments either offer an interpretation of the document or an assessment of the document that
should be performed by the ALJ in the first instance. For example, Defendant argues that
Lauzon's statement that Plaintiff would most likely be most successful by working part time is
not a functional limitation because it does not describe any specific limitations. But, it is the
opinion of a treating source and is entitled to great weight. Any reasons for assessing less weight
should be rendered by the ALJ in the context of all the evidence as a whole. In arguing that the
eye specialists' letters are not material, Defendant relies on the ALJ's findings, Def.'s Resp. 5, as
well as the evidence the ALJ relied on, to contend that the new evidence does not create the
possibility of changing the outcome. But, it is exactly the ALJ's findings and the evidence he
relied on that would or could be impacted by the new evidence. Given that the eye specialists'
letters supplement their treatment records, there is a reasonable possibility these opinions could
affect the ALJ's determination, especially considering that the step two determination of severity
is not onerous. E.g., Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) "the step-two inquiry
is a de minimis screening device"). While the materiality of Radke's letter is a closer question,
Defendant's arguments about the lack of materiality are better made to the ALJ.
Defendant argues that good cause for the late submission is not established because they
are nothing more than "favorable reports" offered after his claim was denied. Mayes, 276 F.3d at
463 ("claimant does not meet the good cause requirement by merely obtaining a more favorable
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report once his or her claim has been denied"). Plaintiff must show that the new evidence was
unavailable earlier. Id. Plaintiff states that in fact, none of the four letters here was available at
the time of the hearing. Plaintiff notes that these are not new treatment notes, or a new diagnosis
of a previously unknown impairment, but are opinion letters from Plaintiff's providers which
directly relate to the relevant time period. In contrast to Mayes where the plaintiff sought remand
based on a new herniated disc diagnosis which had not been significantly at issue in the hearing,
Plaintiff argues here that his visual and psychiatric impairments are well-documented in the
record and were considered by the ALJ. Plaintiff also candidly argues that given how well these
impairments are documented in the record, there was no reason to anticipate that the ALJ would
not find them severe at step two. Although they were obtained after the ALJ's decision, because
they are primarily an interpretation of evidence the ALJ already had, they are not simply a "more
favorable report" obtained after a denial.
While this is a close question, I agree with Plaintiff. These letters were not in existence
before the ALJ's decision. The facts in Mayes are distinguishable. And, because these letters are
primarily an interpretation of evidence already in the record, they are different in kind from the
"favorable report" at issue in Mayes.
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6 - OPINION & ORDER
CONCLUSION
Plaintiff's motion to remand [31] is granted. This case is remanded to the Commissioner
for consideration of new evidence pursuant to sentence six of 42 U.S.C. § 405(g). This Court
will retain jurisdiction and refrain from entering a final judgment until the Commissioner returns
with a new decision reflecting the inclusion and consideration of the new records.
IT IS SO ORDERED.
Dated this
day of
Marco A. Hernandez
United States District Judge
7 - OPINION & ORDER
, 2018
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