1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MILLICEN MARIE HUDDLESTON,

Plaintiff, Civ. No. 3:15-cv-02427-MC

v. OPINION AND ORDER

CAROLYN W. COLVIN, 

ACTING COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff Millicen Marie Huddleston brings this action under 42 U.S.C. § 405(g) to obtain 

judicial review of the final decision of the Commissioner of Social Security denying plaintiff’s 

claim for disability insurance benefits (“DIB”). The Commissioner’s decision is reversed

because the Appeals Council (“AC”) erred in finding new evidence was not material to the 

Administrative Law Judge’s (“ALJ”) decision. Because it is not clear that the ALJ would have to 

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2 – OPINION AND ORDER

find plaintiff disabled even with the new medical opinions, this matter is remanded to the ALJ 

for further proceedings. 

PROCEDURAL BACKGROUND

Huddleston applied for DIB on May 22, 2011, alleging disability as of March 24, 2011. 

Following a hearing, the ALJ issued a written opinion on May 29, 2014 finding Huddleston not 

disabled. After the ALJ’s decision, Huddleston submitted new evidence to the AC. This new 

evidence consisted of medical opinions from two members of Huddleston’s “three-member 

treatment team,” including Dr. Sheryl Estlund, Huddleston’s “primary provider.” Tr. 1530-31; 

1562.

1 Amongst other comments, Dr. Estlund opined Huddleston “is limited in standing and 

walking no more than occasionally . . . .” Tr. 1530. Dr. Estlund drafted her opinion on July 10, 

2014, but noted “This information is derived from my observations and the review of her record 

and consistent with my treatment of her.” Tr. 1531. Dr. Estlund noted her team treated 

Huddleston since March of 2011. Tr. 1530. In other words, Dr. Estlund’s team treated 

Huddleston throughout her alleged period of disability.

The AC considered the new evidence, but stated:

We found that this information does not provide a basis for changing the 

Administrative Law Judge’s decision.

We also looked at[:] The Administrative Law Judge decided your case through 

May 29, 2014. This new information is about a later time. Therefore, it does not 

affect the decision about whether you were disabled beginning on or before May 

29, 2014. 

Tr. 2. 

Critical to the dispute here, the AC explicitly noted it received the July 2014 opinions of 

Huddleston’s treating physicians and “is making [the additional evidence] part of the record.” Tr. 

6. The AC then denied Huddleston’s request for review. Tr. 1.

 

1

“Tr” refers to the Transcript of Social Security Administrative Record provided by the Commissioner.

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3 – OPINION AND ORDER

Huddleston timely appealed the Commissioner’s decision. Huddleston alleges several 

errors. As relevant here, Huddleston argues the AC erred in failing to consider the new evidence

material to her claim. 

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner’s decision if the decision is based on 

proper legal standards and the legal findings are supported by substantial evidence in the record. 

42 U.S.C. § 405(g); Batson v. Comm’r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 

2004). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is 

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” 

Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 

980 (9th Cir. 1997)). To determine whether substantial evidence exists, we review the 

administrative record as a whole, weighing both the evidence that supports and that which 

detracts from the ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the 

evidence can reasonably support either affirming or reversing, ‘the reviewing court may not 

substitute its judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 

740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 

1996)).

DISCUSSION

The ALJ here issued a well-reasoned decision based on the evidence before him. 

However, Huddleston submitted new evidence to the AC. The AC found the new evidence was 

not material because it was dated two months after the ALJ’s decision. The Commissioner 

argues the Court lacks jurisdiction to review the AC’s decision because it is not a “final 

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4 – OPINION AND ORDER

decision.” The Commissioner argues that under sentence six of § 405(g), Huddleston must 

demonstrate “good cause” for not presenting the new evidence to the ALJ. 

Nearly five years ago, the Ninth Circuit rejected a nearly identical version of the 

Commissioner’s current argument. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 

1159 (9th Cir. 2012) (“The Commissioner contends that when the Appeals Council denies 

review of an ALJ’s decision, evidence that was not before the ALJ is not part of the 

administrative record before the district court, even if that evidence was submitted to and 

accepted by the Appeals Council. We disagree.”). Instead, “when a claimant submits evidence 

for the first time to the Appeals Council, which considers that evidence in denying review of the 

ALJ’s decision, the new evidence is part of the administrative record, which the district court 

must consider in determining whether the Commissioner’s decision is supported by substantial 

evidence.” Brewes, 682 F.3d at 1159-60. 

As noted, the AC explicitly made the two medical opinions part of the record. Tr. 6.2 And 

although the opinions were dated two months after the ALJ’s decision, the opinions made clear 

they were based on Huddleston’s treatment history dating back to 2011, three years before the 

ALJ’s decision. Tr. 1530-31. The AC therefore erred in finding the new opinions were not 

material. See 20 C.F.R. § 404.970(b) (AC shall evaluate new and material evidence that “relates 

to the period on or before the date of the administrative law judge hearing decision.”). This Court 

looks to the new evidence in determining whether the ALJ’s decision is supported by substantial 

evidence. Brewes, 682 F.3d at 1163. 

 

2

This case differs from those where the AC did not make the new evidence part of the record and the court 

required the claimant to satisfy sentence six of § 405(g). See Knipe v. Comm’r of Soc. Sec. Admin., 2015 WL 

9480026 at *5-6 (D. Or. Dec. 29, 2015). Therefore, the Commissioner’s argument that Huddleston provide “good 

cause” for not submitting the new evidence earlier fails.

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5 – OPINION AND ORDER

The new evidence concerns medical opinions of Huddleston’s primary care physicians. 

They look to be the only treating opinions in the voluminous record. According to Dr. Estlund, 

Huddleston “is limited in standing and walking no more than occasionally . . . .” Tr. 1530. If the 

ALJ gives great weight to Dr. Estlund’s opinion, Huddleston would be disabled as of her 50th 

birthday because, under the regulations, a claimant who is 50 years old and unable to perform 

sedentary work is disabled. 

The ALJ is charged with weighing conflicting evidence. Chaudhry v. Astrue, 688 F.3d 

661, 671 (9th Cir. 2012). Here, the ALJ found Huddleston’s testimony less than fully credible 

regarding the extent of her limitations. In examining Dr. Estlund’s opinion, the ALJ may 

conclude it is entitled to little weight because it is based on Huddleston’s self-reports. 

Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (“An ALJ may reject a treating 

physician's opinion if it is based ‘to a large extent’ on a claimant's self-reports that have been 

properly discounted as incredible.”). On the other hand, the ALJ could conclude Dr. Estlund’s 

opinion is inconsistent with either her own notes or the record as a whole. Burrell v. Colvin, 775 

F.3d 1133, 1140 (9th Cir. 2014). The new evidence, however, could well alter the ALJ’s original 

opinion as to Huddleston’s credibility. The ALJ should essentially start from scratch:

Where the Appeals Council was required to consider additional evidence, but 

failed to do so, remand to the ALJ is appropriate so that the ALJ can reconsider its 

decision in light of the additional evidence.

Taylor v. Comm’r of Soc. Sec. Admin, 659 F.3d 1228, 1233 (9th Cir. 2011).

Huddleston argues this Court should remand for payment of benefits. Generally, “when 

an ALJ’s denial of benefits is not supported by the record, ‘the proper course, except in rare 

circumstances, is to remand to the agency for additional investigation or explanation.’” Hill v. 

Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (quoting Benecke v. Barnhart, 379 F.3d 587, 595 

(9th Cir. 2004)). However, courts may award benefits only “where the record has been fully 

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6 – OPINION AND ORDER

developed and where further administrative proceedings would serve no useful purpose.” Smolen 

v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Here, the ALJ must weigh the new evidence in 

light of the original evidence. Taylor, 659 F.3d at 1233. Additionally, examining the record as a 

whole “creates serious doubt as to whether Claimant is, in fact, disabled” and “remand on an 

open record for further proceedings” is appropriate. Burrell, 775 F.3d at 1140. 

CONCLUSION

The Commissioner’s reversed and remanded. On remand, the ALJ shall conduct further 

proceedings on an open record.

IT IS SO ORDERED.

DATED this 10th day of February, 2017.

 /s/ Michael McShane 

Michael McShane

 United States District Judge

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