Gary Sam v. Carolyn Colvin ( 2016 )

FILED
NOT FOR PUBLICATION
SEP 14 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY D. SAM, No. 14-36109
Plaintiff - Appellant, D.C. No. 4:13-cv-00013-RRB
v.
MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted September 12, 2016**
Before: PREGERSON, LEAVY and OWENS, Circuit Judges.
Gary D. Sam appeals pro se the district court’s judgment affirming the
Commissioner of Social Security’s denial of Sam’s application for supplemental
security income (SSI) under Title XVI of the Social Security Act. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo, Ghanim v. Colvin, 763
F.3d 1154, 1159 (9th Cir. 2014), and we affirm.
Sam requests a remand, stating in his opening brief that the Commissioner
approved a new disability claim he filed in April 2014. Remand is not warranted
because Sam’s statement is unsubstantiated, and he fails to show how a subsequent
award of benefits is material to the outcome of his claims decided in April 2012.
See Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (concluding that a
subsequent award of benefits was not inconsistent with a prior denial of the
claimant’s initial application where the second application involved different
medical evidence, a different time period, and a different age classification).
The district court correctly concluded that Sam had timely, actual notice of
the April 30, 2012 adverse decision of the Administrative Law Judge (ALJ). Sam
has not shown that he was denied notice and an opportunity to be heard. Udd v.
Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001).
Sam contends that the medical evidence reflects that he was disabled. The
ALJ’s non-disability determination in April 2012 was supported by substantial
evidence, and the district court did not abuse its discretion in refusing to remand to
the agency on the basis of additional evidence. 42 U.S.C. § 405(g); Clem v.
Sullivan, 894 F.2d 328, 332 (9th Cir. 1990).
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The June 21, 2012 treatment note from David W. Templin, M.D., stating that
Sam was “disabled,” was submitted to the Appeals Council and was part of the
administrative record. Dr. Templin’s notation that Sam was “disabled,” however,
does not constitute a medical opinion; rather, it is an statement on an issue that is
reserved to the Commissioner: whether Sam meets the statutory definition of
“disability.” See McLeod v. Astrue, 640 F.3d 881, 884 (9th Cir. 2011) (affirming
the ALJ’s rejection of medical opinion that claimant “could not work at all”
because “this determination is for the Social Security Administration to make, not
a physician”); 20 C.F.R. § 416.927(d)(1). As a result, it does not undermine the
substantial evidence in support of the ALJ’s residual functioning capacity (RFC)
assessment.
Additionally, Sam failed to establish a reasonable possibility that the new
medical evidence he presented in the district court would have changed the
outcome of the administrative hearing, or that good cause existed for his failure to
incorporate that evidence into the record before the agency. Mayes v. Massanari,
276 F.3d 453, 462 (9th Cir. 2001); Clem, 894 F.2d at 332. For example, the July
16, 2013 letter from psychiatrist, Jean C. Purvis, M.D., post-dated by more than a
year the ALJ’s adverse decision. See Macri v. Chater, 93 F.3d 540, 544 (9th Cir.
1996) (concluding that medical reports issued after the Commissioner’s decision
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were “less persuasive”). Moreover, although other medical records Sam submitted
to the district court were “new” in the sense that they were not included in the
administrative record that was before the ALJ in 2012, they are either so old as to
not be material, or they are duplicative of record evidence that was before the ALJ
in March 2012. Mayes, 276 F.3d at 462.
AFFIRMED.
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