United States District Court, C.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
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)).
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. Attachments filed with Plaintiff's supplement include, inter alia, 2005 records from Dr. Charles Boyer, Plaintiff's chiropractor. 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).
STANDARD OF REVIEW
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). "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 ...