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Joann Fryer v. Michael J. Astrue

February 18, 2011

JOANN FRYER,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Joann Fryer seeks judicial review of the Commissioner's final decision denying her application for Social Security Disability Insurance ("SSDI") benefits and Supplemental Security Income ("SSI") benefits. For the reasons set forth below, the decision of the Administrative Law Judge ("ALJ") is affirmed.

I. Background

Plaintiff filed her application for SSDI and SSI benefits on December 12, 2006, alleging disability as of February 1, 2006 due to disorders of the back and anxiety disorders. (Administrative Record ("AR") 11, 79-81, 82-86.) Plaintiff was born on February 11, 1958 and was 50 years old at the time of the administrative hearing. (AR 11, 79, 101.) She completed high school, and has been employed as a cashier, medical assistant, surveyor and vocational trainer. (AR 27, 106.)

Plaintiff's application was denied initially on June 1, 2007, and upon reconsideration on September 28, 2007. (AR 45-50, 54-58.) An administrative hearing was held on December 16, 2008 before ALJ Michael D. Radensky. Plaintiff, represented by counsel, testified, as did a vocational expert ("VE"). (AR 22-40.)

On April 7, 2009, ALJ Radensky denied Plaintiff's application for benefits. (AR 11-19.) The ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date.*fn1 (AR 13.) The ALJ further found that Plaintiff had the following severe impairments: chronic pancreatitis secondary to history of alcohol and drug abuse, mild degenerative changes of the back, and Tarlov cyst on the lumbar spine. (Id.) However, the ALJ determined that Plaintiff's impairments did not meet and were not medically equal to, one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR 14.) The ALJ also determined that Plaintiff retained the residual functional capacity ("RFC") to "lift/carry twenty pounds occasionally, ten pounds frequently; sit six hours in an eight-hour workday; stand/walk four hours in an eight-hour workday, changing positions briefly one to three minutes each hour; occasional postural, but no climbing ladders, ropes, or scaffolds; no concentrated exposure to hazards or vibration." (Id.) Plaintiff was deemed able to perform her past relevant work as a vocational trainer. (AR 18.) Therefore, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act. 20 C.F.R. § 416.920(f). (Id.)

On April 27, 2010, the Appeals Council denied review (AR at 1-3), and Plaintiff timely commenced this action for judicial review. On February 2, 2011, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues, including the following: (1) the Appeals Council failed to properly consider newly submitted evidence regarding Plaintiff's ability to work; (2) the ALJ erred in determining that Plaintiff could perform her past relevant work; and (3) the ALJ failed to make proper credibility findings. (Joint Stip. 2-3.) Plaintiff asks the Court to reverse and order an award of benefits, or in the alternative, remand for further proceedings. (Joint Stip. 23.) The Commissioner requests that the ALJ's decision be affirmed. (Joint Stip. 24.)

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or ALJ's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. Discussion

A. The Evidence Submitted After the Administrative Hearing Does Not Require Remand

Plaintiff asserts that she presented new evidence to the Appeals Council after the hearing that changed the weight of the evidence and that the Appeals Council erred in denying review. This new evidence consists of a one-page "San Bernardino County Transitional Assistance Department Medical Report" dated December 5, 2006. (AR 329.) The medical report, signed by J. Evans, M.D., notes that Plaintiff had been diagnosed with leg pain and sciatica with a fair prognosis. (Id.) Dr. Evans opined that Plaintiff was not capable of performing any work and that she was temporarily incapacitated from December 7, 2006 through May 7, 2007. (Id.) In the comments section of the form, Dr. Evans stated, "[d]ate of disability retroactive to 5/2/06, unable to work at present due to complications of sciatica." (Id.)

The Court has jurisdiction to remand a case for the consideration of new evidence, but "only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." See 42 U.S.C. § 405(g) (Sentence Six); Allen v. Secretary of Health & HumanServs., 726 F.2d 1470, 1473 (9th Cir. 1984). New evidence is material if

(1) the evidence bears "directly and substantially" on the matter in dispute, and (2) there is a "reasonable possibility" that the new evidence would have changed the outcome of the administrative hearing. See Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001); see also Booz v. Secretary of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984)(new evidence is material if ...


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