Renato C. Susa v. Michael J. Astrue, No. 2:2010cv06478 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (bem)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 RENATO C. SUSA, 10 11 12 Plaintiff, v. 13 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 14 Defendant. 15 ) Case No. CV 10-6478 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) 16 17 I. 18 INTRODUCTION AND SUMMARY 19 On September 2, 2010, plaintiff Renato C. Susa ( Plaintiff ) filed a complaint 20 against defendant Michael J. Astrue ( Defendant ), the Commissioner of the Social 21 Security Administration, seeking review of a denial of disability insurance benefits 22 ( DIB ). [Docket No. 3.] On March 24, 2011, Defendant filed his answer, along with a certified copy of 23 24 the administrative record. [Docket Nos. 12, 13.] In sum, having carefully studied, inter alia, the parties joint stipulation and 25 26 the administrative record, the Court concludes that, as detailed below, the medical 27 evidence submitted for the first time to the Appeals Council poses no reasonable 28 probability of changing the outcome of the decision of the Administrative Law 1 Judge ( ALJ ). Thus, the Court affirms the Commissioner s decision denying 2 benefits. 3 II. 4 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND Plaintiff, who was 48 years old on the date of his administrative hearing, has 5 6 an eighth grade education completed in the Phillipines. (See Administrative Record 7 ( AR ) at 174, 181-82, 235, 265.) On February 12, 2007, Plaintiff protectively filed for DIB, alleging that he has 8 9 been disabled since May 23, 2006 due to back problems, arthritis, ulcers, difficulty 10 sleeping, and emotional stress. (See AR at 198, 235, 256, 260.) On May 30, 2008, Plaintiff, represented by counsel, appeared and testified at a 11 12 hearing before an ALJ. (See AR at 174-96.) The ALJ also heard testimony from 13 Sandra Schneider, a vocational expert ( VE ). (Id.) An interpreter was present to 14 assist Plaintiff at the hearing. (Id.) On August 20, 2008, the ALJ denied Plaintiff s request for benefits. (AR at 15 16 52-66.) Applying the well-known five-step sequential evaluation process, the ALJ 17 found, at step one, that Plaintiff has not engaged in substantial gainful activity since 18 his alleged onset date. (Id. at 55.) At step two, the ALJ found that Plaintiff suffers from severe impairments 19 20 consisting of disc disease of the lumbar spine[,] depressive disorder [not otherwise 21 specified,] and alcohol abuse. (AR at 55 (emphasis omitted).) At step three, the ALJ determined that the evidence did not demonstrate that 22 23 Plaintiff s impairments, either individually or in combination, meet or medically 24 equaled the severity of any listing set forth in the Social Security regulations.1/ (AR 25 at 63.) 26 27 28 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2 The ALJ then assessed Plaintiff s residual functional capacity2/ ( RFC ) and 1 2 determined that he can perform light work. (AR at 63.) Specifically, the ALJ 3 determined that: 4 [Plaintiff] can lift and carry up to 20 pounds occasionally and 10 5 pounds frequently. He can stand and walk for 6 hours and can sit 6 for 6 hours in an 8-hour workday, with normal breaks. However, 7 he must be permitted to alternate sitting and standing as needed. 8 He is also moderately limited in performing complex tasks and 9 has a moderate limitation on attention and concentration. 10 (Id. (emphasis omitted).) 11 The ALJ found, at step four, that Plaintiff lacks the ability to perform his past 12 relevant work. (AR at 64.) 13 At step five, based on Plaintiff s RFC and the VE s testimony, the ALJ found 14 that there are jobs that exist in significant numbers in the national economy that 15 [Plaintiff] can perform, including cashier and counter clerk. (AR at 65 (bold 16 omitted).) Thus, the ALJ concluded that Plaintiff was not suffering from a disability 17 as defined by the Act. (Id. at 66.) 18 Plaintiff filed a timely request for review of the ALJ s decision and submitted 19 additional evidence in conjunction with his request for review, which was denied by 20 the Appeals Council. (AR at 1-4, 46.) The ALJ s decision stands as the final 21 decision of the Commissioner. 22 III. 23 24 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 2 STANDARD OF REVIEW This Court is empowered to review decisions by the Commissioner to deny 3 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 4 Administration must be upheld if they are free of legal error and supported by 5 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 6 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 7 are based on legal error or are not supported by substantial evidence in the record, 8 the court may reject the findings and set aside the decision to deny benefits. 9 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 10 242 F.3d 1144, 1147 (9th Cir. 2001). 11 Substantial evidence is more than a mere scintilla, but less than a 12 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 13 evidence which a reasonable person might accept as adequate to support a 14 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 15 at 459. To determine whether substantial evidence supports the ALJ s finding, the 16 reviewing court must review the administrative record as a whole, weighing both 17 the evidence that supports and the evidence that detracts from the ALJ s 18 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 19 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 20 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 21 evidence can reasonably support either affirming or reversing the ALJ s decision, 22 the reviewing court may not substitute its judgment for that of the ALJ. Id. 23 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 24 IV. 25 ISSUE PRESENTED 26 A single disputed issue is presented here: whether newly submitted evidence, 27 a physical RFC questionnaire completed by treating physician Philip A. Sobol, M.D. 28 ( Dr. Sobol) was properly considered by the Appeals Council. (See Joint Stip. at 44 1 15, 19.) 2 V. 3 DISCUSSION AND ANALYSIS 4 A. New Evidence 5 Plaintiff argues that the Appeals Council did not provide legally sufficient 6 reasons for rejecting the RFC questionnaire form completed by Dr. Sobol and 7 submitted for the first time to the Appeals Council. (Joint Stip. at 4.) 8 9 1. Request for Review by Appeals Council Social Security regulations provide that where new and material evidence is 10 submitted to the Appeals Council with the request for review, the entire record will 11 be evaluated and review of the ALJ s decision will be granted where the Appeals 12 Council finds that the ALJ s action, findings, or conclusion is contrary to the weight 13 of the evidence currently of record. 20 C.F.R. § 404.970(b). Post-decision evidence 14 considered by the Appeals Council is part of the record on review by this Court. 15 Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); Gomez v. Chater, 74 F.3d 16 967, 971 (9th Cir.), cert. denied, 519 U.S. 881 (1996). 17 To be material, the new evidence must bear directly and substantially on the 18 matter in dispute. Mayes, 276 F.3d at 462 (internal quotation marks and citation 19 omitted). Material evidence should relate to the period on or before the date of the 20 ALJ s decision. See 20 C.F.R. § 404.970(b). The claimant must also demonstrate a 21 reasonable possibility that the new evidence would have changed the disability 22 determination. Mayes, 276 F.3d at 462. 23 24 25 2. The Appeals Council Did Not Err in Denying Review of the ALJ s Decision The Court concludes that the Appeals Council properly determined that the 26 new evidence did not provide a basis for changing the [ALJ s] decision, (AR at 2), 27 and finds that Plaintiff fails to show the evidence would have changed the outcome 28 5 1 of the ALJ s decision.3/ Three reasons guide this determination. 2 First, the diagnoses made in the RFC questionnaire are cumulative and were 3 properly considered by the ALJ. Dr. Sobol repeatedly diagnosed Plaintiff with, inter 4 alia, lumbar spine sprain/strain and bilateral wrist tendinitis. (See, e.g., AR at 68, 5 71, 80.) In the newly-submitted form, completed on February 1, 2010, Dr. Sobol 6 restated his diagnoses of lumbar sprain/strain and bilateral wrist/forearm 7 tendinitis. (Id. at 477, 481.) Prior to Plaintiff s submission of the RFC form and 8 based on his evaluation of the medical evidence, the ALJ found Plaintiff s disc 9 disease of the lumbar spine to be severe, but concluded that his tendinitis was not 10 severe, a finding which Plaintiff does not dispute here. (See id. at 55, 64; see 11 generally Joint Stip. at 4-15, 19.) 12 Second, the newly-submitted RFC assessment is not supported by substantial 13 evidence. In the questionnaire, Dr. Sobol opined that Plaintiff is limited to sitting 14 and/or standing continuously no more than two hours and fifteen minutes at one 15 time. (AR at 479.) Dr. Sobol also found Plaintiff can stand and/or walk less than 16 two hours in an eight-hour work day and sit about two hours in an eight-hour work 17 day. (Id.) Dr. Sobol indicated that Plaintiff would need to walk for five minutes 18 every twenty minutes at will in an eight-hour work day and take between two to 19 six unscheduled breaks during the work day. (Id. at 479-80.) Further, Dr. Sobol 20 determined that Plaintiff would occasionally be able to lift and/or carry less than ten 21 22 3/ Contrary to Defendant s argument, (Joint Stip. at 17), the Court need not 23 decide whether there was good cause for Plaintiff s late submission of evidence. 42 24 U.S.C. § 405(g) deals with review of an ALJ s decision by the district court not by the Appeals Council and the good cause requirement therein specifically 25 addresses the failure to incorporate [new] evidence into the record in a prior 26 proceeding. The Appeals Council s review in this case was a prior proceeding, and pursuant to Ramirez, 8 F.3d at 1452, Plaintiff s additional evidence became part 27 of the administrative record before this case reached federal court. Thus, this Court 28 may consider it. 6 1 pounds, but would never be able to lift and/or carry any object that is ten pounds or 2 heavier. (Id. at 480.) 3 However, Dr. Sobol s RFC assessment is not supported by his own treatment 4 notes. (See AR at 68-71, 72-83 (orthopedic evaluation, dated October 9, 2007, 5 reporting some improvement of [Plaintiff s] low back symptoms with acupuncture 6 and patient noted some improvement of his symptoms subsequent to pain 7 management consultation), 84-90, 462-73 (progress report, dated September 26, 8 2006, indicating that MRI scan of lumbar spine revealed mild to moderate 9 degenerative changes of the lumbosacral spine and noting no weakness . . . in the 10 major muscles tested in the bilateral upper and lower extremities ).) 11 Accordingly, Plaintiff cannot demonstrate a reasonable possibility that the 12 RFC questionnaire would have changed the ALJ s decision because Dr. Sobol s 13 RFC questionnaire provided only conclusory observations without any supporting 14 clinical findings. (See AR at 477-81); Batson v. Comm r of Soc. Sec., 359 F.3d 15 1190, 1195 (9th Cir. 2004) (ALJ may discredit treating physicians opinions that are 16 conclusory, brief, and unsupported by the record as a whole, or by objective medical 17 findings); cf. Booz v. Sec y of Health & Human Servs., 734 F.2d 1378, 1380-81 (9th 18 Cir. 1984) (new evidence is material when it creates a reasonable possibility that the 19 outcome of the case would be different). 20 Third, the Court finds that the weight of the evidence supports the ALJ s 21 finding that Plaintiff was not suffering from a disability as defined by the Act. (See, 22 e.g., AR at 187-89 (Plaintiff s testimony that he was able to drive to the hearing, is 23 able to perform household chores, such as vacuuming, cooking, cleaning, and 24 grocery shopping, spends most of the day on the bed watching TV, play[ing] video 25 games, and has about five [good] days in a week), 190-94, 413-18 (internal 26 medicine evaluation, dated April 12, 2007, finding Plaintiff s muscle tone, bulk, 27 and strength are normal and upper and lower extremity movements are 28 normal ), 468.) 7 1 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 2 AFFIRMING the decision of the Commissioner denying benefits. 3 4 5 Dated: May 26, 2011 ______________________________ Hon. Jay C. Gandhi United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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