The opinion of the court was delivered by: A. Howard Matz United States District Judge
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the complaint, the cross-motions for summary judgment, the Magistrate Judge's Report and Recommendation ("R&R"), the objections to the R&R filed on August 18, 2010, and the records and files. Based upon the Court's de novo review, the Court agrees with the recommendation of the Magistrate Judge. Bissett's objections are overruled. The Court adopts the R&R and addresses here only the pertinent new arguments made by Bissett.
Bissett's objections first focus on the ALJ's finding that she had a
"history of rash" as a severe impairment. AR 14; Objections at 1.*fn1
Bissett argues that her physician, Dr. Kalata, wrongly
attributed her skin rash to scabies, and therefore the ALJ failed to
diagnose and evaluate her skin condition. (Id. at 3.) Bissett attaches
a document "to whom it may concern" indicating Dr. Kalata diagnosed
scabies on April 9, 2003.*fn2 (Exh. A at 2, Dkt. No.
19.) This document is not in the Certified Administrative Record and
was not before the ALJ. Moreover, Bissett applied for benefits on
April 4, 2007 and alleged a disability onset date of February 6, 2006.
(R&R at 2.) The ALJ reviewed Dr. Kalata's medical records from that
period which showed itching, a few lesions, and a few areas of
alopecia from "picking, scratching and hair pulling" on May 11, July 6
and August 17, 2006.*fn3 AR 16, 150-51. The ALJ noted
the consultative examination with Dr. Taylor on June 15, 2007. AR 16,
111-15. At that examination, Bissett reported that her "itching is
only in the scalp area," is "generally improving" with medication. AR
17, 111. Dr. Taylor noted two or three "small lesions at the lower
base of the scalp and near the neck area, but no other significant
rashes, scars or lacerations." AR 17, 113. The ALJ described Dr.
Taylor's findings that the few lesions "may be some result of
scratching" and were unlikely to represent scabies. AR 17, 114.
Bissett's argument that Dr. Taylor diagnosed scabies is incorrect.
(Objections at 11, 15.)
Contrary to Bissett's argument, there is no indication Bissett was diagnosed with scabies in 2006/2007 or that the ALJ found scabies during that time period. (See Objections at 11.) Bissett refers extensively to Internet materials about scabies. (Id. at 10-14.) To the extent Bissett intends to request judicial notice of such materials, the request for judicial notice is denied. Fed. R. Evid. 201.
Bissett further objects that she presented new and material evidence. (Objections at 17.) As the R&R explained, for new evidence to be "material," it must bear "directly and substantially on the matter in dispute." (R&R at 5 (quoting Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (citations and quotation marks omitted)).) Bissett had to demonstrate "a 'reasonable possibility' that the new evidence would have changed the outcome of the administrative hearing." Mayes, 276 F.3d at 462.*fn4
Bissett submitted a medical record in September 2009 showing staphylococcus aureus, moderate growth. (Exhibit M, Dkt. No. 19.) However, Bissett's assumption that she must have had the same infection in 2006 or 2007 is speculative and unsupported by medical evidence in the record. (R&R at 6); see Mayes, 276 F.3d at 462 ("Mayes has not shown that the new evidence was material, as the record lacks evidence that she had herniated discs at and before the ALJ Hearing."); see also 20 C.F.R. §§ 404.970(b), 416.1470(b). The objections cite Internet materials regarding the potential relationship between scabies and staphylococcus aureus, the potential for treatment-resistant infection, and the potential for lethal infection. (Objections at 12-14, 17-19.) To the extent Bissett requests judicial notice of such materials, the request for judicial notice is denied. Fed. R. Evid. 201. The September 2009 medical record does not indicate Bissett had a staphylococcus aureus infection prior to the date of the ALJ's decision, or that her condition is treatment resistant, crippling or lethal. The Internet materials cannot substitute for such medical evidence.
Bissett appears to argue that her skin condition meets or equals a listed impairment. (Objections at 6-7.) The ALJ found that Bissett did not meet or medically equal a listed impairment.*fn5 AR 15.
At step three, the claimant bears the burden of demonstrating that her impairments are equivalent to one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Bowen v. Yuckert, 482 U.S. 137, 141, 146 n.5, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). "If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step." Id. at 141; see also Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. §§ 404.1520(4)(iii), 416.920(4)(iii). "The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just 'substantial gainful activity.'" Sullivan v. Zebley, 493 U.S. 521, 532, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990) (citation omitted). "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Id. at 530 (emphasis in original). "To equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings 'at least equal in severity and duration' to the characteristics of a relevant listed impairment, or, if a claimant's impairment is not listed, then to the listed impairment 'most like' the claimant's impairment." Tackett, 180 F.3d at 1099 (quoting 20 C.F.R. § 404.1526, emphasis in original). "'Medical equivalence must be based on medical findings.' A generalized assertion of functional problems is not enough to establish disability at step three." Id. at 1100 (quoting 20 C.F.R. § 404.1526).
Bissett argues that she meets Listing 8.04: "Chronic infections of the skin or mucous membranes, with extensive fungating or extensive ulcerating skin lesions that persist for at least 3 months despite continuing treatment as prescribed." Bissett provides no medical evidence of extensive fungating or extensive ulcerating skin lesions in the record before the ALJ. At best, she argues she had "skin lesions that persist for at least 3 months despite continuing treatment." (Objections at 6.) Bissett does not meet all of the specified medical criteria for the listed impairment. Nor does she present symptoms, signs and laboratory findings at least equal in severity and duration to the listed impairment. Bissett submits a medical record dated September 2009 indicating a diagnosis of chronic scalp rash and a culture showing staphylococcus aureus, moderate growth. (Exhibit M, Dkt. No. 19.) Again, however, there is no indication of extensive fungating or extensive ulcerating skin lesions. Nor is there any indication that the staphylococcus aureus persisted for at least 3 months despite continuing treatment. (Id.)
Residual Functional Capacity
Bissett appears to argue that the ALJ ignored her skin rash in his residual functional capacity assessment. (Objections at 6.) As the ALJ noted, the examining physician Dr. Taylor did not find any limitations based ...