                                                                           FILED
                           NOT FOR PUBLICATION                             APR 17 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KENNETH JOSEPH BORRELLI,                         No. 12-16189

              Plaintiff - Appellant,             D.C. No. 1:10-cv-02396-SKO

  v.
                                                 MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee.


                   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.




        *
             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.
         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
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
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.




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