Kevin Short v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN SHORT,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 19-35273
D.C. No. 3:18-cv-05112-JPD
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
James P. Donohue, Magistrate Judge, Presiding
Submitted March 2, 2021**
Seattle, Washington
Before: RAWLINSON and BYBEE, Circuit Judges, and MOSKOWITZ,***
District Judge.
FILED
MAR 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.

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Andrew Short appeals the district court’s order affirming an Administrative
Law Judge (ALJ) decision denying Short’s application for disability benefits under
Title II of the Social Security Act, 42 U.S.C. §§ 416, 423, and denial of his motion
for a remand pursuant to sentence six of 42 U.S.C. § 405(g). We have jurisdiction
pursuant to 28 U.S.C. § 1291. We vacate and remand under sentence six.1
Sentence six of 42 U.S.C. § 405(g) permits a district court to order the
Commissioner of Social Security to consider new evidence if there is good cause
for the applicant’s failure to include the evidence sooner and the new evidence is
material. We review good cause determinations for abuse of discretion and
materiality determinations de novo. Mayes v. Massanari, 276 F.3d 453, 462–63
(9th Cir. 2001).
1. The district court abused its discretion in determining that Short had not
established good cause for not submitting compensation and pension (C&P)
examinations from the Veterans Administration (VA) to the ALJ. Where, as here,
the new evidence could not have been presented to the ALJ because it did not exist
at the time of the ALJ’s decision, there is good cause for failing to present the
evidence sooner. See Ward v. Schweiker, 686 F.2d 762, 764 (9th Cir. 1982). Here,
1 Because we remand under sentence six of 42 U.S.C. § 405(g), we do not
reach Short’s other claims regarding the SSA’s denial of benefits.
2

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the C&P examinations were conducted in October 2017, after the ALJ’s decision
in December 2016. Because Short did not obtain the C&P examinations until he
received the VA’s December 2017 Disability Rating—a decision only issued two
days before the Appeals Council’s decision—the district court abused its discretion
in finding that Short had not established good cause for not presenting the evidence
to the Appeals Council.
2. The ALJ erred in finding that Short, despite establishing good cause, had
not demonstrated that the 2017 VA Disability Rating decision was material. New
evidence is material where it bears “directly and substantially on the matter in
dispute,” Ward, 686 F.2d at 764 (quotation omitted), and there is a “reasonable
possibility that the new evidence would have changed the outcome of the
Secretary’s determination had it been before him,” Booz v. Sec’y of Health &
Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984) (quotation omitted). The VA
Disability Rating decision increasing Short’s fibromyalgia rating from 10 percent
to 40 percent and increasing his post traumatic stress disorder (PTSD) rating to 100
percent bears directly and substantially on Short’s claims of fibromyalgia, chronic
pain, and PTSD.
Moreover, Short has, at the least, shown a reasonable possibility that the
2017 VA Disability Rating decision and underlying C&P examinations would have
3

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changed the outcome of the case because the ALJ relied on a lack of medical
records documenting fibromyalgia and PTSD in rejecting Short’s testimony and
denying benefits. In fact, the ALJ specifically considered the lack of a VA
disability finding in rejecting Short’s PTSD claim and in discounting Short’s
testimony regarding claims of PTSD and fibromyalgia. The VA Disability Rating
decision and C&P examinations also have the potential to rehabilitate Short’s
credibility regarding his claims of fibromyalgia and PTSD. While we express no
view on the merits of Short’s credibility, there is a reasonable possibility that a
credibility finding in Short’s favor would have changed the outcome of the ALJ’s
decision, particularly considering that the ALJ must give “great weight” to a VA
disability determination. See McLeod v. Astrue, 640 F.3d 881, 886 (9th Cir. 2011)
(quotation omitted). Accordingly, the district court erred in finding that the 2017
VA Disability Rating decision and C&P examinations were not material and in not
remanding the case to the Commissioner for consideration of that evidence in the
first instance.
VACATED and REMANDED. On remand, the district court is instructed
to remand the case to the Commissioner for consideration of the 2017 VA
Disability Rating decision and underlying C&P examinations pursuant to sentence
six of 42 U.S.C. § 405(g).
4

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