Opinion
No. C 02-4171 SI
October 15, 2003
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO REMAND AND REMANDING ACTION TO ADMINISTRATIVE LAW JUDGE
Having carefully considered the arguments of the parties in the papers submitted, the Court hereby GRANTS in part and DENIES in part plaintiff's motion for remand and REMANDS this case j to the Administrative Law Judge for the reasons discussed below.
BACKGROUND
On August 7, 2000, plaintiff Jerry Allen filed for Social Security Income for disability under Title XVI of the Social Security Act, 42 U.S.C. § 401-433, 1381-82c. After an administrative denial of his claim, the matter was heard by the Honorable Robert P. Wenton, Administrative Law Judge ("ALJ"). The ALJ denied Allen's claim on February 8, 2002. On August 5, 2002, the Appeals Council denied review of the ALJ's ruling, making it the final decision of the Social Security Commissioner ("Commissioner").
On September 3, 2002, pursuant to 42 U.S.C. § 405(g), Allen filed in this Court a Complaint for Judicial Review of Decision of Commissioner of Social Security. Allen's complaint was filed pro se. On March 27, 2003, Allen filed a motion for summary judgment. On April 24, 2003, defendant Commissioner filed a Cross-Motion for Summary Judgment and Motion in Opposition to Plaintiff's Motion for Summary Judgment. On May 3, 2003, Allen, newly represented by counsel, filed a Reply Memorandum for Summary Judgment or Remand. The content of Allen's reply memorandum did not address summary judgment, but rather sought remand to the ALJ based on two grounds: (1) new material evidence and (2) erroneous use by the ALJ of the Medical Vocational Guidelines grid.
On July 17, 2003, this Court issued an Order Re Further Briefing specifically inviting the parties to submit further briefings regarding any newly raised issues in Allen's reply brief. Both parties submitted further briefing.
LEGAL STANDARD
Remand for consideration of new evidence is appropriate where the "new evidence is material and there is good cause for the failure to incorporate the evidence in a prior proceeding." Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). "To be material under section 405(g), the new evidence must bear `directly and substantially on the matter in dispute.'" Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (citation omitted). A claimant "must additionally demonstrate that there is a `reasonable possibility' that the new evidence would have changed the outcome of the administrative hearing."Id. (quoting Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380 (9th Cir. 1984). The good cause requirement is satisfied if "new information surfaces after the Secretary-'s final decision and the claimant could not have obtained that evidence at the time of the administrative proceeding." Key, 754 F.2d at 1551; see also Mayes, 276 F.3d at 463.
A district court may disturb the final decision of the Social Security Administration "only if it is based on legal error or if the fact findings are not supported by substantial evidence." Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir. 1987).
DISCUSSION
Allen seeks remand to the ALJ on two grounds: (1) that the ALJ should consider an MRI exam conducted on April 9, 2003, after the Commissioner's decision became final; and (2) that the ALJ improperly relied on the Medical Vocational Guidelines grid in reaching its determination that Allen is not disabled.
(A) Remand for consideration of the MRI is appropriate
Allen argues that the MRI he received on April 9, 2003 is new material evidence of his disability, and that good cause exists for his failure to incorporate the MRI in the prior proceeding. Pl.'s Reply Memo for Summ. J. or Remand at 3:11-12.
The MRI is material because it tends to corroborate a medical opinion which the ALJ largely discounted as uncorroborated. The ALJ's ruling was based in part on the ALJ's decision not to rely on the findings of Dr. Daniel Katzenberg, who examined Allen on September 9, 2001. R. at 15. Dr. Katzenberg, without the benefit of an MRI, made the following recommendation relating to Allen's capacity to work:
I would limit carrying to occasionally 35-50 pounds and 10-20 pounds frequently. I would say he can be on his feet easily for 10-15 minutes at a time, 2-3 hours in a full workday. He should only occasionally climb, balance, crouch, stoop or crawl because of the limited mobility of the back.
R. at 409-10.
Notwithstanding Dr. Katzenberg's opinion, the ALJ found Allen capable of performing entry level light work as defined by 20 C.F.R. § 416.967(b). R. at 17. Section 416.967(b) defines light work as that which involves:
lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing . . . To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.20 C.F.R. § 416.967(b). The Social Security Administration has further explained:
Even though the weight lifted in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing . . . the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.
Social Security Ruling 83-10, 1983 WL 31251 *5-6.
The ALJ chose not to rely on Dr. Katzenberg's conclusions because they were "uncorroborated by other substantial evidence in the record." R. at 15. Originally, only neck x-rays were performed on Allen, and these did not conclusively show the spinal stenosis revealed by the MRI. PL.'s Reply Memo for Summ. J. or Remand at 2:15-18. The ALJ determined that other evidence, such as Allen's daily activities, outweighed "the objective medical findings which, in this case, are limited."Id.
According to Dr. Amy Hsiao, the new MRI exam shows that Allen suffers from spinal stenosis at cervical levels from C3 to C6 and is thereby precluded from: (1) standing/walking for more than one hour at a time or for more than two hours in an eight hour work day; (2) sitting for more than two hours at a time or for more than four to six hours in an eight hour work day; (3) lifting more than thirty-five pounds; and (4) prolonged bending, standing, or sitting. Clavert Decl, Ex. B. The new MRI appears to corroborate the earlier findings of Dr. Katzenberg.
The Commissioner argues that the new MRI is not material because it "addresses [Allen's] condition as of April 9, 2003, over a year after the decision of the ALJ." Def.'s Sur-Reply at 2:9-10. However, Allen asserts that "[t]here have been no new accidents since the date of the ALJ's decisions which might have caused sudden multilevel spinal stenosis." PL's Reply Memo for Summ. J. or Remand at 3:1-2.
The MRI is material because it contains findings which appear to corroborate those of Dr. Katzenberg and because there is a reasonable possibility that the MRI would have changed the outcome of the proceeding.
Furthermore, Allen has demonstrated good cause for his failure to incorporate an MRI earlier in the proceedings. Allen asserts that because he is without medical insurance, he was unable to afford the costly MRI procedure. PL's Reply Memo for Summ. J. or Remand at 3:6-10. A doctor ordered an MRI to investigate further Allen's medical claims only after Allen had visited several free clinics. Id.
Accordingly, Allen's motion to remand to the ALJ is GRANTED, and the case is REMANDED for consideration of the new MRI exam.
(B) Remand based on erroneous use of the Medical Vocational Guidelines grid is not appropriate
The Court is aware that Allen has filed a subsequent claim for benefits based on the MRI, alleging disability commencing on February 12, 2002, after the ALJ's ruling in the instant case.; Recognizing that the two claims are based on the same alleged disability, the Court leaves the decision how to proceed with the two claims to the sound discretion of the ALJ.
Allen claims that the ALJ erroneously used the Medical Vocational Guidelines grid ("the grids") to assess his claim because he is mentally disabled. He argues that use of the grids is proper only in assessing exertional impairments, not when the claimant has mental impairments. PL's Reply Memo for Summ. J. or Remand at 3:20-22.
"The ALJ must apply the grids if a claimant suffers only from an exertional [strength-related] impairment," Cooper v. Sulllivan, 880 F.2d 1152, 155 (9th Cir. 1989) (citing 20 C.F.R. Part 404, Subpart P, Appendix 2, §§ 200.00(a) (e) (1988)). "However, where a claimant suffers solely from a nonexertional [non-strength related] impairment, the grids do not resolve the disability question; other testimony is required." Id. (footnote omitted) (citation omitted). "In cases where the claimant suffers from both exertional and nonexertional impairments . . . the grids must [first] be consulted to determine whether a finding of disability can be based on the exertional impairments alone." Id. "However, if the exertional impairments alone are insufficient to direct a conclusion of disability, then further evidence and analysis are required." Id.
Allen relies on Beecher v. Heckler, 756 F.2d 693 (9th Cir. 1985) for the proposition that reliance on the grids is improper where there is substantial evidence of mental impairment. Pl.'s Reply Memo, for Summ. J. or Remand at 3:24-25. However, Beecher is factually distinguishable. There, the ALJ made determinations based solely on the physical impairments of the claimant. Beecher, 756 F.2d at 695. The ALJ in Beecher did not look at the combination of both physical and psychological impairments. Id. Thus the Court of Appeals in Beecher reversed and remanded so the lower courts would consider both physical and psychological impairments together when determining whether the claimant was disabled. Id. at 696.
In the present case, the ALJ considered both Allen's physical and psychological impairments. The ALJ noted that "[w]hile there is some evidence in the record of cognitive functioning in the borderline or mentally retarded range, the record does not describe significantly subaverage general of intellectual functioning with deficits in adaptive behavior initially manifested before age 22, as required by Section 12.05 for Listing level mental retardation." R. at 14. The ALJ evaluated the reports of three psychologists who examined Allen between 1997 and 2000. The psychologists noted that Allen "failed to give his best effort" and that he suffered from "no disabling psychological problems." R. at 15. From these reports, the ALJ determined that Allen does not suffer from listing level mental impairment, thus use of the grids was appropriate in determining what type of work Allen can perform.
Accordingly, Allen's motion to remand based on erroneous use of the grids is DENIED.
CONCLUSION
For the foregoing reasons, plaintiff's motion to remand is hereby GRANTED in part and DENIED in part. This action is REMANDED to the Administrative Law Judge for consideration of the newly obtained MRI evidence. [Docket ## 12, 13]
IT IS SO ORDERED.