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Anderson v. Colvin

United States District Court, C.D. California

June 3, 2015



CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.


On July 15, 2014, Plaintiff filed a pro se complaint, seeking review of the Administration's denial of disability benefits. On February 27, 2015, Plaintiff filed a "request" for summary judgment or remand. On April 1, 2015, Defendant filed an opposition to Plaintiff's request. Defendant's opposition requests affirmance of the administrative decision. On April 3, 2015, Plaintiff filed a "supplement." The Court has taken the matter under submission without oral argument. See L.R. 7-15; "Order, " filed July 17, 2014.


Plaintiff, a former pizza delivery driver, wholesale trade packer, stocker, car wash attendant, and warehouse worker, asserted disability since April 7, 2009, based on, inter alia, alleged fatigue, mercury poisoning, headaches, and head injury (Administrative Record ("A.R.") 114-32, 154-55). An Administrative Law Judge ("ALJ") reviewed the record and heard testimony from Plaintiff and a vocational expert (A.R. 18-25, 37-63, 153-306).

The ALJ found Plaintiff has severe right eye blindness but retains the residual functional capacity to perform a full range of work at all exertion levels, with "the following nonexertional limitations: the claimant is blind in the right eye. The claimant has no peripheral vision on the right, and has mildly reduced depth perception" (A.R. 20, 22). The ALJ determined that, with this capacity, Plaintiff could perform his past relevant work and therefore is not disabled (A.R. 24 (adopting vocational expert testimony at A.R. 57-59)). The Appeals Council denied review after considering certain additional medical records (A.R. 1-5; see also A.R. 307-14 (records)).[1]

Plaintiff seeks reversal of the administrative decision or, alternatively, a remand for the Administration to consider "new" evidence (Plaintiff's Request, pp. 2-3, 8). Plaintiff's "new" evidence is contained within Exhibit A to Plaintiff's request and the attachments filed with Plaintiff's supplement. Exhibit A consists of: (a) Riverside County Regional Medical Center emergency records from December 13, 1999, and February 29, 2000, for treatment of a left eye injury; and (b) Institutional Consultation Forms for ophthalmology consults from February 29, 2000, and March 17, 2000.[2] Attachments filed with Plaintiff's supplement include, inter alia, 2005 records from Dr. Charles Boyer, Plaintiff's chiropractor.[3] Plaintiff previously had listed Dr. Boyer as a medical provider who may have records of treatment from 2005 through December 2006 (A.R. 157). Plaintiff claims that the Administration did not seek these records from Dr. Boyer, and that Plaintiff could obtain the records only after having received the Administrative Record, which contained Dr. Boyer's contact information. See Supplement, p. 3; but see A.R. 41 (Plaintiff's counsel stating at the administrative hearing that there was no non-record evidence of which counsel was aware that would be relevant to Plaintiff's case).


Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).[4] "The claimant carries the burden of proving a disability. Failure to prove disability justifies a denial of benefits." Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (citations omitted).

Where, as here, the Appeals Council considered additional evidence but denied review, the additional evidence becomes part of the record for purposes of the Court's analysis. See Brewes v. Commissioner, 682 F.3d at 1163 ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence"; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1232 (2011) (courts may consider evidence presented for the first time to the Appeals Council "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).

The Court may not consider new evidence unpresented to the ALJ or to the Appeals Council, except when analyzing whether to remand the case under "sentence six" of 42 U.S.C. section 405(g). See Melkonyan v. Sullivan, 501 U.S. 89, 100-03 (1991). Sentence six provides that the Court may remand a case for the administrative consideration of additional evidence "only upon a showing that there is new evidence which is material and there is good cause for the failure to incorporate such evidence into the record in [the] prior [administrative] proceeding." 42 U.S.C. § 405(g).


After consideration of the record as a whole, the Magistrate Judge recommends that Plaintiff's request for summary judgment or remand be denied and the Administration's decision be affirmed. The Administration's findings are supported by substantial evidence and are free from material[5] legal error. Remand is not appropriate.

I. Plaintiff Has Failed to Make the Requisite Showing for a Sentence Six Remand.

"Sentence-six remands may be ordered in only two situations: where the Secretary requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency." Shalala v. Schaefer, 509 U.S. 292, 297 n.2 (1993); see 42 U.S.C. § 405(g). In the latter circumstance, the claimant bears the burden of demonstrating the materiality of the evidence and good cause for not having presented the evidence during the administrative proceeding. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).

New evidence is "material" within the meaning of section 405(g) if the evidence "bears directly and substantially on the matter in dispute, " and "there is a reasonable possibility that the new evidence would have changed the outcome of the [administrative] determination." Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (citations and quotations omitted). "A claimant does not meet the good cause requirement by merely obtaining a more favorable report once his or her claim has been denied." Mayes v. Massanari, 276 F.3d at 463. However, "[i]f new information surfaces after the [Administration's] final decision and the claimant could not have obtained that evidence at the time of the administrative proceeding, the good cause requirement is satisfied." Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (citing Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380 (9th Cir. 1984)).

Plaintiff has failed to satisfy the materiality requirement with respect to any of his "new" evidence. Plaintiff's "new" evidence is remote. All of the "new" evidence substantially predates the relevant time period. "Medical opinions that predate the alleged onset of disability are of limited relevance." Carmickle v. Commissioner, 533 F.3d at 1165. Plaintiff has failed to demonstrate any reasonable possibility that any of the "new" evidence would have changed the outcome of the administrative decision. As Plaintiff concedes, the Administration reviewed at least some of Plaintiff's "new" evidence when the Administration considered and denied his prior applications for benefits. See Plaintiff's Request, pp. 3, 6. Moreover, Plaintiff admits that he actually did work at a full-time job years after even the most recent of the records included within the "new" evidence.

Plaintiff alleges he has had left eye blindness since December 13, 1999, and is now nearly blind in his right eye (Plaintiff's Request, p. 7). The "new" evidence compellingly refutes Plaintiff's allegation of left eye blindness. On testing following his injury, Plaintiff reportedly had visual acuity of 20/70 and 20/50 in his left eye. See Plaintiff's Request, Exhibit A. Plaintiff's "new" records do not suggest the existence of any significant work-related left eye deficit during the relevant time period.[6]

Plaintiff also has not demonstrated "good cause" for having failed to present the "new" evidence during the administrative proceedings. The duty to develop the record is a shared duty. See 20 C.F.R. §§ 404.1512, 416.912 (claimant must provide evidence of disability; the Administration will develop a claimant's medical history for "at least the 12 months preceding the month in which [the claimant] file[s his] application unless there is a reason to believe that development of an earlier period is necessary"). Here, Plaintiff was represented by counsel during the administrative proceedings, and counsel indicated there were no additional relevant medical records of which he was aware (A.R. 41). Plaintiff's Disability Report listed at least one of the doctors (Dr. Boyer) whose records Plaintiff failed to present during the administrative proceedings (A.R. 153-60). Through his counsel or otherwise, Plaintiff could have presented these records during those proceedings (if records so remote in time had been thought to have had any importance).[7] Particularly given Plaintiff's representation by counsel during the administrative proceedings, Plaintiff's alleged inability to recall how to contact his own treating physicians cannot establish "good cause." See Campbell v. Shalala, 988 F.2d 741, 745 n.2 (7th Cir. 1993) (denying request for sentence six remand where the claimant "could have and should have obtained the letters [including medical opinions] while the case was still subject to administrative review"); Ingham v. Astrue, 2010 WL 1875651, at *5 (C.D. Cal. May 10, 2010) (finding no good cause for failure to introduce evidence which predated ALJ's decision, where plaintiff alleged that he could not remember the name of the facility where the medical testing was performed).

II. Substantial Evidence Supports the Administrative Decision.

As indicated above, the ALJ determined that Plaintiff retains the capacity to perform his past relevant work and therefore is not disabled (A.R. 20-25). The Administrative Record contains relevant non-medical and medical evidence that "a reasonable mind might accept as adequate to support" this conclusion.

The record contains several consultative evaluations finding little or no functional limitations. Dr. Banafshe P. Ardebili prepared a Complete Psychological Evaluation of Plaintiff dated January 6, 2011, in which Dr. Ardebili found that Plaintiff has no functional limitations (A.R. 200-05). Dr. Thaworn Rathana-Nakintara prepared a Complete Psychiatric Evaluation of Plaintiff dated March 7, 2012, also finding no functional limitations (A.R. 218-22). Dr. Carl E. Millner prepared a Complete Internal Medicine Evaluation dated January 12, 2011, finding no exertional limitations and only precluding Plaintiff from operating heavy or moving machinery (A.R. 208-12). Dr. Millner noted a left eye visual deficit, but deferred any vision limitations to the appropriate specialist (A.R. 211-12). Dr. Ulin Sargeant prepared an Internal Medicine Consultation for Plaintiff dated March 13, 2012, finding no exertional limitations, but opining that Plaintiff should be restricted from operating motor vehicles due to perceived vision problems (A.R. 225-30). Dr. Sargeant reported that Plaintiff has right eye deficits, but no left eye deficits (A.R. 227, 230).

The ALJ properly relied on the consultative examiners' opinions that Plaintiff would have no mental or physical limitations other than those related to his right eye. See A.R. 22-24; see also Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consultative examiner's opinion based on independent examination of the claimant constitutes substantial evidence).[8]

The vocational expert testified that a person with the residual functional capacity the ALJ found to exist could perform all of Plaintiff's past relevant work (A.R. 57-59). The vocational expert's testimony furnishes substantial evidence there exist significant numbers of jobs Plaintiff can perform. See Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); see also Barker v. Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986); see generally Johnson v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir. 1995) (ALJ properly may rely on vocational expert to identify jobs claimant can perform); 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 404.1520, 416.920.

To the extent the record contains conflicting evidence, [9] it was the prerogative of the ALJ to resolve the conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Where, as here, the evidence "is susceptible to more than one rational interpretation, " the Court must uphold the administrative decision. Andrews v. Shalala, 53 F.3d at 1039-40; accord Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); see also Morgan v. Commissioner, 169 F.3d 595, 601 (9th Cir. 1999) (where medical reports are inconclusive, the resolution of conflicts in the evidence is within the province of the Commissioner).


For all of the foregoing reasons, it is recommended that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) denying Plaintiff's request for summary judgment or remand; (3) granting Defendant's request for affirmance; and (4) directing that Judgment be entered in favor of Defendant.

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