United States District Court, E.D. California
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF
DEFENDANT COMMISSIONER OF SOCIAL SECURITY, AND AGAINST
PLAINTIFF ANNA MARIE BAPTISTA
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
Marie Baptista asserts she is entitled to supplemental
security income and disability insurance benefits under
Titles II and XVI of the Social Security Act. Plaintiff
argues the ALJ erred in evaluating the record and that the
matter should be remanded for further proceedings due to new
evidence submitted to the Appeals Council. For the reasons
set forth below, the Court finds Plaintiff failed to
demonstrate good cause for the submission of the additional
evidence to the Appeals Council, and the ALJ's decision
denying benefits is AFFIRMED.
12, 2015, Plaintiff filed her applications for benefits, in
which she alleged disability beginning December 28, 2014.
(See Doc. 7-6 at 12-21) The Social Security
Administration denied her applications at the initial level
and upon reconsideration. (Doc. 7-5 at 2, 12-16) Plaintiff
requested a hearing and testified before an ALJ on July 28,
2017. (Doc. 7-3 at 16, 49) During the hearing, Jeffrey
Duarte, Plaintiffs counsel indicated that additional medical
records may be submitted, and the ALJ indicated she would
hold the record open for ten days. (Doc. 7-3 at 81) Plaintiff
submitted additional documents, which the ALJ incorporated
into the record. (See Id . at 16, 31) The ALJ
determined Plaintiff was not disabled as defined by the
Social Security Act and issued an order denying benefits on
December 26, 2017. (Doc. 7-3 at 16-27)
filed a request for review of the decision with the Appeals
Council, asserting the ALJ erred in evaluating her
credibility and reviewing the medical record. (Doc. 7-5 at
82; Doc. 7-7 at 52-65) At that time, Mr. Duarte indicated
there was "no additional evidence or legal argument to
submit." (Doc. 7-5 at 82) On March 5, 2018, the Appeals
Council issued a notice informing Mr. Duarte:
You may send us a statement about the facts and the law in
this case or additional evidence. We consider additional
evidence that you show is new, material, and relates to the
period on or before the date of the hearing decision. You
must also show that there is a reasonable probability that
the additional evidence would change the outcome of the
decision. You must show good cause for why you missed
informing us about or submitting it earlier.
(Doc. 7-3 at 8) The following day, Plaintiff submitted a
report by Dr. Joel Renbaum, from an orthopedic evaluation
performed on September 19, 2017. (Id. at 32-45)
Appeals Council reviewed the new evidence and determined it
did "not show a reasonable probability that it would
change the outcome of the decision." (Doc. 7-3 at 3)
Therefore, the Appeals Council indicated it "did not
consider and exhibit this evidence." (Id.) The
Appeals Council denied Plaintiffs request for review on April
26, 2018 (id. at 2-5), at which time the ALJ's
determination became the final decision of the Commissioner
of Social Security.
courts have a limited scope of judicial review for disability
claims after a decision by the Commissioner to deny benefits
under the Social Security Act. When reviewing findings of
fact, such as whether a claimant was disabled, the Court must
determine whether the Commissioner's decision is
supported by substantial evidence or is based on legal error.
42 U.S.C. § 405(g). The ALJ's determination that the
claimant is not disabled must be upheld by the Court if the
proper legal standards were applied and the findings are
supported by substantial evidence. See Sanchez v. Sec
'y of Health & Human Serv., 812 F.2d 509, 510
(9th Cir. 1987).
evidence is "more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as
a whole must be considered, because "[t]he court must
consider both evidence that supports and evidence that
detracts from the ALJ's conclusion." Jones v.
Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
qualify for benefits under the Social Security Act, Plaintiff
must establish she is unable to engage in substantial gainful
activity due to a medically determinable physical or mental
impairment that has lasted or can be expected to last for a
continuous period of not less than 12 months. 42 U.S.C.
§ 1382c(a)(3)(A). An individual shall be considered to
have a disability only if:
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work,
but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a
claimant to establish disability. Terry v. Sullivan,
903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant
establishes a prima facie case of disability, the burden
shifts to the Commissioner to prove the claimant is able to
engage in other substantial gainful employment. Maounis
v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).
achieve uniform decisions, the Commissioner established a
sequential five-step process for evaluating a claimant's
alleged disability. 20 C.F.R. §§ 404.1520,
416.920(a)-(f). The process requires the ALJ to determine
whether Plaintiff (1) engaged in substantial gainful activity
during the period of alleged disability, (2) had medically
determinable severe impairments (3) that met or equaled one
of the listed impairments set forth in 20 C.F.R. § 404,
Subpart P, Appendix 1; and whether Plaintiff (4) had the
residual functional capacity to perform to past relevant work
or (5) the ability to perform other work existing in
significant numbers at the state and national level.
Id. The ALJ must consider testimonial and objective
medical evidence. 20 C.F.R. §§ 404.1527, 416.927.
Medical Evidence and Opinions before the ALJ
2014, Plaintiff visited Turlock Medical Office, where she was
treated by Dr. Mitchell Cohen for low back pain. (Doc. 7-8 at
25) Dr. Cohen noted Plaintiffs medications included
Hydrocodone-acetaminophen "up to twice daily as needed
for pain, " Loratadine, and Baclofen "as needed for
returned to Turlock Medical office in September and December
2014, receiving treatment for a sinus infection and
headaches. (Doc. 7-8 at 17, 20) She continued to take the
medication identified by Dr. Cohen, as well as azithromycin
for the sinus infection. (Id. at 18-19, 22)
February 2015, Plaintiff again reported having low back pain,
after which she underwent an MRI of her lumbar spine on
February 20. (Doc. 7-8 at 10, 31-32) Dr. Monica Martinez
found "a new disc protrusion/extrusion at L2-L3."
(Id. at 32) She determined Plaintiff had
"severe facet arthropathy" at L4-L5, L5-6, and
L6-S1; spondylolisthesis at L5-L6 and L6-S2; and disc
protrusions at L3-L4, L4-L5, and L5-L6. (Id.) Dr.
Martinez compared the results of the MRI to one taken in 2010
and concluded each of these conditions was
reports of neck pain, Plaintiff had radiographs taken on her
cervical spine on May 5, 2015. (Doc. 7-8 at 30; Doc. 7-9 at
14) Dr. Ajit Nijjar found "multilevel degenerative disc
disease and facet joint arthritic changes [were] present in
the cervical spine" with "minimal grade I
anterolisthesis at [the] C4-5 and C5-6 levels."
(Id.) In addition, Dr. Nijjar determined there was
"mild encroachment of the left neural foramen at [the]
C3-4 level." (Id.)
2015, Plaintiff underwent an MRI of her cervical spine. (Doc.
7-8 at 72-73) Dr. Jerry Grigoropoulos determined Plaintiff
had "[degenerative 1-2 mm anterolisthesis of C4 on C6
and C5 on C6" and advanced facet arthrosis.
(Id. at 73) Dr. Grigoropoulos opined Plaintiff had
"moderate left paracentral disc spur complex and
uncinate spurring C3-C4 with superimposed facet arthropathy
and significant left-sided foraminal encroachment."
(Id.) He found "[n]o cord compression or cord
Karl Gregorius performed a neurological consultative
examination on June 10, 2015. (Doc. 7-9 at 2) Plaintiff told
Dr. Gregorius she had pain in her lumbar spine that radiated
down to both hamstrings. (Id.) She said her pain was
"4 to 6/10" on average in her lumbar spine and 2/10
in her legs. (Id.) However, her back pain could
increase to 9/10 at night when she extended her back.
(Id.) Plaintiff reported she could walk about 1
mile; stand for an hour; and "sit through a movie, if
she changes position." (Id.) Dr. Gregorius
noted Plaintiff was "quite active, " noting she
also "goes to Disneyland" and "does
gardening." (Id.) Dr. Gregorius observed:
The examination shows that this patient is healthy appearing.
The patient can flex the lumbar spine to 80° to 90°
and extend to °, she reverses her lumbar curve. She
has some moderate pain with extension from the flexed
position. She has negative straight leg raising bilaterally
at 90°. She has 5/5 strength in her legs. The reflexes
are 2 at the patellae and absent at the ankle areas.
(Id.) Dr. Gregorius reviewed the MRI of the lumbar
spine and noted it showed "degenerative disc disease at
virtually every level of her lumbar spine, " without
evidence of nerve root impingement. (Id.) According
to Dr. Gregorius, Plaintiff was "getting along quite
well with her pain syndrome on minimal amounts of
medication." (Id. at 3) Dr. Gregorius informed
Plaintiff "the only thing [he] could recommend was
possibly an epidural steroid injection to try if her pain
worsened or possibly water therapy [could] help her if she
could learn to do the water exercises during a physical
therapy class and then do the water therapy on her own."
2015, Plaintiff returned to Dr. Cohen with complaints of low
back and neck pain. (Doc. 7-8 at 62) Dr. Cohen noted
Plaintiff also reported right shoulder pain, which was
"associated with numbness, tingling and impaired [range
of motion]." (Id.) She stated the pain was
"better" with the prescribed nonsteroidal
anti-inflammatory drugs, and exercise also helped with her
shoulder pain. (Id.) Dr. Cohen found Plaintiff had a
decreased range of motion in her neck, and she was able to
abduct her shoulder "to greater than 90 degrees with
some pain." (Id. at 64) Dr. Cohen noted the MRI
findings for Plaintiffs neck were "not completely
consistent with symptomology, " and Plaintiff denied a
referral for physical therapy, stating she would "do it
at home." (Id.) He also indicated Plaintiff
should have an x-ray due to her reported shoulder pain.
following month, Plaintiff reported that "her shoulder
[had] gotten better, " and she did not have an x-ray
taken. (Doc. 7-8 at 57) Dr. Cohen opined that, though
Plaintiff reported her neck pain was "a bit worse,
" her condition was stable and unchanged. (Id.
at 57, 60)
Linder reviewed available records and completed a physical
residual functional capacity assessment on August 25, 2015.
(Doc. 7-4 at 6-7, 14-15) Dr. Linder opined Plaintiff could
lift and carry 50 pounds occasionally and 25 pounds
frequently, sit about six hours in an eight-hour day, and
stand and/or walk about six hours in an eight-hour day.
(Id. at 6, 14) Dr. Linder concluded Plaintiff could
frequently climb ramps and stairs, stoop, kneel, crouch, and
crawl; and occasionally climb ladders, ropes, and scaffolds.
(Id. at 7, 15) Dr. Linder opined Plaintiff did not
have manipulative or environmental limitations.
October 2015, Plaintiff reported that she was "hurting
everywhere, " and her hands were "locking up."
(Doc. 7-8 at 53) Dr. Cohen noted Plaintiff continued to take
Loratradine, Hydrocodone-acetaminophen "twice a day as
needed for pain, " Baclofen "as needed for spasms,
" Acyclovir, and Xopenex "as needed for
wheezing." (Id. at 54)
Cohen completed a residual functional capacity questionnaire
on October 20, 2015. (Doc. 7-11 at 2-5) He noted Plaintiff
had been diagnosed with right shoulder pain, neck pain, and
low back pain. (Id. at 2) Dr. Cohen opined Plaintiff
was stable with her pain medication. (Mat 3) He indicated he
was "unable to assess" Plaintiffs ability to sit,
stand, walk, or the amount of weight she could lift and carry
in a competitive work situation. (Id. at 3-4) He
believed Plaintiff should elevate her legs, but indicated it
was "unknown" how high she should do so or the
percentage of the day elevation was required. (Id.
at 4) Dr. Cohen indicated Plaintiff could rarely look down or
look up; occasionally turn her head or hold it in a stable
position; and rarely twist, stoop, crouch, crawl, and climb.
(Id. at 4-5) According to Dr. Cohen, Plaintiff did
not have any limitations with reaching, handling, or
fingering. (Id. at 5)
Samplay reviewed the medical record related to Plaintiffs
request for reconsideration on January 11, 2016. (Doc. 7-4 at
26) Dr. Samplay noted Plaintiff had "slight restriction
of [range of motion] but no evidence of radiculopathy.
(Id.) Dr. Samplay also found there were "no
additional physical exam findings" in the record
"to support any worsening of impairment."
(Id.) Therefore, Dr. Samplay affirmed the medium
residual functional capacity assessment with postural
limitations identified by Dr. Linder at the initial level.
(Id.; see also Id . at 25-26)
in January 2016, Plaintiff told Dr. Cohen her
"neuropathy [was] acting up." (Doc. 7-8 at 44)
Plaintiff also reported that she was exercising regularly,
and Dr. Cohen observed she did not appear in "acute
distress." (Id. at 45-46) Dr. Cohen opined
Plaintiffs neck impairment was "unchanged, " but
added a prescription for gabapentin "at night for the
pain." (Id. at 47)
follow-up appointment on March 1, 2016, Plaintiff told Dr.
Cohen "the gabapentin [was] helping her, " and
"[h]er pain control was much better with the addition of
gabapentin." (Doc. 7-10 at 41) Dr. Cohen opined
Plaintiffs lumbar back pain was improved and stable.
(Id. at 43)
April 2016, Plaintiff visited Turlock Medical Office for
treatment of right hip pain, reporting "she bent over to
pick up something about a week [before] and she felt a pop in
... her low back/ right hip." (Doc. 7-10 at 37) Dr.
Hardeep Saini observed that Plaintiff walked with a normal
gait, sat comfortably, and transferred from a chair to the
table without discomfort. (Id. at 39) Dr. Saini
found Plaintiff had a full range of motion in her lumbar
spine, and her hip range of motion was "good with [a]
slight decrease in abduction due to groin pain."
(Id.) In addition, Dr. Saini determined Plaintiffs
motor strength was 5/5. (Id.)
2016, Plaintiff told Dr. Cohen that she was exercising
regularly, and Dr. Cohen opined the conditions were stable.
(Doc. 7-10 at 34, 35) Dr. Cohen also noted he "[a]dvised
[Plaintiff] of the THC policy and that she needs to
stop." (Id. at 35)
reported she still had neuropathy down her legs in August
2016, despite taking gabapentin. (Doc. 7-10 at 26) Dr. Cohen
directed Plaintiff "to increase the gabapentin to 2 at
night." (Id. at 29)
October 2016, Plaintiff told Dr. Cohen that "[h]er back
and legs still hurt, " though "[h]er legs were
better at night... with the increase on the gabapentin."
(Doc. 7-10 at 20) Dr. Cohen indicated Plaintiff would
continue taking gabapentin for leg pain and refilled the
prescriptions for Hydrocodone-acetaminophen and Baclofen to
treat Plaintiffs back pain. (Id. at 22-23)
January 2017, Plaintiff reported difficulty sleeping and
eating after "[h]er sister was diagnosed with lymphoma
and a friend [had] melanoma." (Doc. 7-10 at 10)
Plaintiff told Dr. Cohen that "[h]er back pain [was]
still present." (Id.) Dr. Cohen also noted
Plaintiff reported she was not using drugs or alcohol and
exercised regularly. (Id. at 11) He prescribed
Trazadone for Plaintiff to take "once a day at bedtime
for insomnia" and directed Plaintiff to return in two
months for a follow-up appointment. (Id. at 13, 14)
reported that her "neck and back... flared up again and
she [was] experiencing paresthesias going into her left arm
and both legs" at the follow-up in March 2017. (Doc.
7-10 at 5) She also told Dr. Cohen that gabapentin helped.
(Id.) Dr. Cohen determined Plaintiff had a
"minimal" positive straight leg raise test,
bilaterally. (Id. at 7) Dr. Cohen ordered ...