United States District Court, D. Oregon
J. Wall Attorney for Plaintiff
J. Williams UNITED STATES ATTORNEY Ryan Lu Attorneys for
OPINION & ORDER
HERNANDEZ, District Judge
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.
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.
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 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
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).
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.
ophthalmologist provides a summary of his eye issues.
Id., Ex. B. Dr. Landon 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.
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.
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 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.
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.
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 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.
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 ...