Kenneth Joseph Borrelli v. Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH JOSEPH BORRELLI,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
No. 12-16189
D.C. No. 1:10-cv-02396-SKO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding
Argued and Submitted April 8, 2014
San Francisco, California
Before: BENAVIDES,*** TALLMAN, and CLIFTON, Circuit Judges.
FILED
APR 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.

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On May 26, 2010, an administrative law judge denied Kenneth Borrelli’s
application for Social Security disability insurance benefits, finding his testimony
not fully credible in part because he had provided “no medical records after July of
2008.” The judge concluded that the lack of treatment records suggested the
claimant was “exaggerat[ing] his pain” and associated mobility limitations.
Borrelli submitted an updated record to the Appeals Council, but the Council
denied review without opinion. Borrelli then appealed to the district court, which
declined to remand after finding the new documents immaterial.1 This Court
reviews such a determination de novo. Mayes v. Massanari, 276 F.3d 453, 462
(9th Cir. 2001).
In approaching the Appeals Council for review of an unfavorable decision, a
disability claimant may submit “any new and material evidence . . . which relates
to the period on or before the date of the administrative law judge hearing
decision.” 20 C.F.R. § 404.976(b)(1). Claimants need not show good cause before
submitting new evidence to the Appeals Council. Brewes v. Comm’r of Soc. Sec.
Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). New evidence is material if it bears
“directly and substantially on the matter in dispute.” Luna v. Astrue, 623 F.3d
1 Borrelli v. Astrue, No. 1:10-cv-02396-SKO, 2012 WL 947343, at *22 (E.D. Cal. Mar. 20, 2012).
2

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1032, 1034 (9th Cir. 2010) (quoting Booz v. Sec’y of Health & Human Servs., 734
F.2d 1378, 1380 (9th Cir. 1984)) (internal quotation marks and brackets omitted).
Remand is necessary where the material evidence gives rise to a “reasonable
possibility” that the new evidence might change the outcome of the administrative
hearing. Booz, 734 F.2d at 1380–81.
We find that the new evidence justifies remand in part because the judge
explicitly based his decision on the absence of recent medical records. The judge
reasoned that “[i]f the claimant experienced pain or limitation to the extent or
severity [] he claims, it is unreasonable to have no medical records after July of
2008.” Consequently, it stands to reason that these records—which reflect
consistent and ongoing efforts to resolve Borrelli’s arthritis symptoms—might
have changed the outcome of the case. In addition, the new evidence suggests that
neither the judge nor the vocational expert posed a hypothetical that accurately
reflects Borrelli’s abilities and limitations.2
We therefore vacate the decision of the Social Security Administration and
remand for further vocational testimony in light of this additional material
2 Of course, we can hardly fault the administrative law judge for not taking
into account material evidence that claimant’s counsel failed to provide.
3

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evidence. Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000). In developing
testimony, the administrative law judge may consider all evidence of record to the
extent it relates to the alleged impairments. 20 C.F.R. § 404.976(b)(1); see also
Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1996).
VACATED and REMANDED.
Each party to bear its own costs.
4

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