Kelley v. Commissioner of Social Security, No. 3:2013cv01125 - Document 41 (S.D. Cal. 2015)

Court Description: ORDER denying Plaintiff's 29 Motion for Summary Judgment; granting Defendant's 33 Motion for Summary Judgment. Court overrules Pla's 39 Objections to the Report. Court adopts 37 Report and Recommendation in its entirety. Pla 's request for a remand to consider new evidence submitted with her motion for summary judgment and opposition to Dft's cross-motion for summary judgment is denied. Signed by Judge Cynthia Bashant on 3/27/2015. (All non-registered users served via U.S. Mail Service) (jah)

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Kelley v. Commissioner of Social Security Doc. 41 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DORRAINE R. KELLEY, Plaintiff, 12 13 14 15 16 Case No. 13-cv-01125-BAS(KSC) ORDER: (1) OVERRULING PLAINTIFF’S OBJECTIONS (ECF NO. 39); (2) ADOPTING REPORT AND RECOMMENDATION IN ITS ENTIRETY (ECF NO. 37); (3) DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 29); AND (4) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 33) v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 17 18 19 20 21 22 On May 10, 2013, plaintiff Dorraine R. Kelley (“Plaintiff”), proceeding pro 23 se, filed a complaint against Carolyn W. Colvin (“Defendant”), Acting 24 Commissioner of Social Security, pursuant to 42 U.S.C. § 405(g) of the Social 25 Security Act (“SSA”) to obtain judicial review of a final decision by the 26 Commissioner of Social Security denying her disability insurance benefits. The 27 Court then referred this matter to Magistrate Judge Karen S. Crawford, who issued 28 a Report and Recommendation (“Report”) on February 26, 2015 recommending –1– 13cv1125 Dockets.Justia.com 1 that this Court: (1) deny Plaintiff’s motion for summary judgment, (2) grant 2 Defendant’s cross-motion for summary judgment, and (3) deny Plaintiff’s request 3 for a remand to consider new evidence submitted with her motion for summary 4 judgment and with her opposition to Defendant’s motion for summary judgment. 5 Thereafter, Plaintiff filed objections to the Report, and the Commissioner filed a 6 response to the objections. 7 I. BACKGROUND1 8 A. Procedural History 9 On or about February 22, 2010, Plaintiff filed an application for 10 supplemental security income (“SSI”). (ECF No. 23-5 at pp. 3-13.) In a Disability 11 Report (Form SSA-3368) completed in connection with her application, Plaintiff 12 stated she has degenerative disc disease, diabetes, and spinal stenosis and cannot 13 work for the following reasons: “lack of motivation, can’t stand longer than 10 14 minutes, trouble bending or twisting, can only lift 10 lbs, [and] pain level is 10.” 15 (ECF No. 23-6 at pp. 3-12.) 16 A Work History Report dated April 7, 2010 states that Plaintiff worked as a 17 receptionist from November 1992 through June 1994. She worked five days a 18 week for eight hours each day and was paid $10 per hour. Her duties included 19 answering telephones and working on a computer. From January 1990 through 20 April 1992, Plaintiff worked five days per week in food service. She worked five 21 hours a day and was paid $8.50 per hour. Her duties included making food, taking 22 food orders at a cash register, and working in the stock room. She carried boxes of 23 canned food from the truck to the shelves and trash bags from the restaurant to a 24 trash receptacle. (Id. at pp. 41-43, 52.) In the “Remarks” section of the Work 25 History Report dated April 7, 2010, Plaintiff wrote that she has “severe pain 24/7” 26 27 1 28 Plaintiff did not object to the following procedural and factual summaries presented in the Report. –2– 13cv1125 1 and “cannot get out of bed to even look for a job.” (Id. at p. 52.) 2 On June 23, 2010, Plaintiff was notified by letter that she did not qualify for 3 disability benefits. (ECF No. 23-4 at p. 8.) The letter provides the following 4 explanation for the denial of benefits: “We have determined that your condition is 5 not severe enough to keep you from working. We considered the medical and other 6 information, your age, education, training, and work experience in determining how 7 your condition affects your ability to work. [¶]You said you are unable to work 8 because of degenerative disc disease, diabetes, and spinal stenosis. ¶We have 9 determined that your condition is not so severe as to prevent you from working ....” 10 (Id. at p. 8.) Three reports from the following medical providers were used to 11 decide Plaintiffs claim for SSI benefits: (1) Dr. Noli Cava; (2) Sharp Memorial 12 Hospital; and (3) Seagate Medical Group (Dr. Ajit Raisinghani). 13 Plaintiff also completed a Disability Report Questionnaire2 which states as 14 follows: “It is very hard to get even out of bed without pain medication. I would be 15 hospitalized without pain medications. I cannot clean, drive, cook, bathe without 16 pain medications.... My day begins with waking up to pain medications [,] crawling 17 out of my bed and to the couch as soon as the medication sets in. I hurry about 18 trying to make a bed or clean the house, care for my children and be a “Mom.” My 19 daily housework assignments are limited. Each pain pill lasts 4-6 hours (if it 20 works). I am constantly chasing a remedy to relieve the pain.... My day ends with 21 pain medication, muscle relaxers and a whole bunch of denials from my insurance 22 to see the doctors.... Doctors say I will not be able to work anytime soon. I will 23 have possible surgery-pending. 24 insurance will not ‘o’k’ a visit to the neurosurgeon. We are pushing to get me in to 25 him. I have been waiting 3 months for clearance to see neurosurgeon and 3 weeks Waiting appointment with neurosurgeon. My 26 27 28 2 Although this document is undated, bar coding indicates that it was faxed from Myler Disability on July 28, 2010 and added to the Administrative Record on August 8, 2010. –3– 13cv1125 1 for clearance to get an x-ray or MRI.” (ECF No. 23-6 at p. 66.) At this time, 2 Plaintiff also represented she was taking a number of medications for an infection, 3 diabetes, back pain, and high blood pressure. 4 medications included severe nausea, fatigue, dizziness, and headaches. (Id. at p. 5 67.) Reported side effects for these 6 Although Plaintiff submitted a request for reconsideration, her request was 7 denied on August 12, 2010. (ECF No. 23-4 at pp. 14-19.) On September 12, 2010, 8 Plaintiff requested a hearing before an administrative law judge (“ALJ”). (Id. at pp. 9 21-27.) A hearing was scheduled and held on August 11, 2011. (ECF No. 23-2 at 10 pp. 26-51; ECF No. 23-4 at pp. 42, 53, 78.) At the hearing, the ALJ considered 11 testimony by (1) Plaintiff; (2) John R. Morse, M.D., a medical expert; and (3) John 12 P. Kilcher, a vocational expert. (ECF No. 23-2 at pp. 26-50; ECF No. 23-4 at pp. 13 70-77.) 14 On August 31, 2011, the ALJ issued a written opinion concluding that 15 Plaintiff did not qualify for disability insurance benefits under the SSA. (ECF No. 16 23-2 at pp. 1-21.) Plaintiff requested review of the ALJ’s decision, arguing that the 17 ALJ “did not rule in accordance [with] the weight of the evidence.” (Id. at pp. 7-8.) 18 Plaintiffs request for review was denied by the Appeals Council on March 8, 2013. 19 (Id. at pp. 2-4.) Plaintiff then filed her Complaint in this action on May 10, 2013. 20 (ECF No. 1.) 21 B. 22 The following is a summary of the medical evidence in the Administrative 23 Record that was submitted in support of Plaintiff s disability claim and considered 24 by the ALJ in reaching his decision to deny benefits on August 31, 2011: 25 Medical Evidence 1. Sharp Memorial Hospital 26 On October 21, 2009, Plaintiff went to Sharp Memorial Hospital complaining 27 of pain radiating down both legs “for the past 3 months.” (ECF No. 23-7 at p. 18.) 28 Plaintiff said she had been taking Motrin “without significant change.” (Id. at p. –4– 13cv1125 1 18.) An x-ray of the spine revealed “slight scoliosis.” (Id. at p. 25.) 2 On December 22, 2009, Plaintiff was once again examined in the emergency 3 room at Sharp Memorial Hospital because of “progressively worsening lower back 4 discomfort” and pain in her legs. She reported to medical personnel at the hospital 5 that the pain began “3 months ago without antecedent trauma or exertion.” (Id. at 6 p. 3.) The results of an MRI “of the lumbosacral spine ... showed mild disk bulging 7 at L3-4, mild disk protrusion at L4-5, and mild to moderate spinal stenosis at L4-5 8 secondary to disk and hypertrophy of the ligamentum flavum.” (Id. at pp. 5, 13.) 9 The emergency room physician concluded the MRI revealed “significant disk 10 disease, particularly on the left, likely accounting for patient’s [symptoms]. As she 11 showed no signs of cord compression [or other conditions] warranting ... surgical 12 intervention,” the emergency room doctor prescribed pain medication and referred 13 Plaintiff to her primary care physician. (Id. at p. 5.) 14 2. Dr. Noli A. Cava 15 Dr. Noli A. Cava (“Dr. Cava”) was Plaintiff’s treating physician beginning 16 January 5, 2010. (ECF No. 23-7, at pp. 27, 41.) In support of Plaintiff’s disability 17 claim, Dr. Cava provided medical records and/or treatment notes from January 5, 18 2010 through May 4, 2011. (Id. at pp. 38-41, 79-90, et seq.) Although these notes 19 are somewhat illegible, many mention chronic low back pain, which Dr. Cava was 20 treating with pain medication. (Id. at pp. 39-41, 80, 85-86, 88, 90.) Plaintiff was 21 also being treated for diabetes at Dr. Cava’s office. (Id. at pp. 40-41, 43, 89, 91.) 22 Dr. Cava’s treatment notes indicate that he referred Plaintiff to physical 23 therapy and a pain clinic for her low back pain. (Id. at pp. 39, 80, 81, 83, 90.) One 24 note in the record from May 4, 2010 suggests that Plaintiff was receiving physical 25 therapy for low back pain and would not be able to consult with a pain clinic until 26 she completed the physical therapy. (Id. at p. 88.) The Administrative Record does 27 not include evidence that Plaintiff actually had physical therapy. Although Dr. 28 Cava’s notes from June 10, 2010 state that Plaintiff was “denied” a neurosurgery –5– 13cv1125 1 evaluation, his later notes from June 29, 2010 state that Plaintiff had been approved 2 to obtain an evaluation by a neurosurgeon. On August 23, 2010, Dr. Cava’s notes 3 say that Plaintiff was still waiting to see a neurosurgeon. (Id. at pp. 85, 86, 87.) 4 However, there is nothing in Dr. Cava’s treatment notes or the remainder of the 5 Administrative Record indicating whether Plaintiff actually had a neurosurgery 6 evaluation. 7 On March 23, 2010, Plaintiff complained to Dr. Cava of pain in her right 8 foot. (Id. at pp. 38, 90.) From May 4, 2010 through May 4, 2011, Dr. Cava’s notes 9 indicate Plaintiff was being treated for an open toe wound on her right foot that was 10 causing pain and not healing. (Id. at pp. 79, 85, 86, 88.) During this time, on 11 August 3, 2010, Plaintiff’s right foot was evaluated by Dr. David W. Buckley at 12 Imaging Healthcare Specialists. Dr. Buckley noted there was some soft tissue 13 swelling and mild degenerative changes in the “first MTP joint,” but he concluded 14 there was “[n]o acute bony abnormality.” (Id. at p. 106.) 15 On April 1, 2010 and again on August 1, 2011, Dr. Cava completed and 16 submitted a Residual Functional Capacity Questionnaire in support of Plaintiff s 17 disability claim. In both of these Questionnaires, Dr. Cava stated that Plaintiff had 18 been diagnosed with spinal stenosis, bulging discs, and displaced discs. Dr. Cava 19 listed the following symptoms and side effects from Plaintiff’s medications: chronic 20 pain, drowsiness, dizziness, fatigue, and nausea. Dr. Cava also indicated on both 21 Questionnaires that Plaintiffs symptoms were severe enough to constantly interfere 22 with the attention and concentration necessary to perform simple, work-related 23 tasks. (Id. at pp. 27,121.) In the Questionnaire dated April 1, 2010, Dr. Cava noted 24 that Plaintiff “has many other health issues [including] diabetes and migraines.” 25 (Id. at p. 28.) In the later Questionnaire dated August 1, 2011, Dr. Cava stated that 26 Plaintiff “also has diabetes and that [a]ffects her vision and causes fatigue. She also 27 has migraine headaches.” (Id. at p. 122.) 28 Dr. Cava also indicated in both Questionnaires that Plaintiff was extremely –6– 13cv1125 1 limited in her ability to function in a work situation. In the earlier Questionnaire 2 dated April 1, 2010, Dr. Cava stated that Plaintiff could sit for two hours and stand 3 or walk for one hour in an eight-hour day. (Id. at p. 27.) However, in the later 4 Questionnaire dated August 1,2011, it was Dr. Cava’s opinion that Plaintiff could 5 sit for six hours and stand or walk for two hours in an eight-hour day. (Id. at p. 6 121.) In both Questionnaires, Dr. Cava stated that Plaintiff could only sit or stand 7 for ten minutes at a time, would need to take frequent and lengthy breaks, could not 8 lift more than 10 pounds occasionally, and could not use her hands, fingers or arms 9 for repetitive tasks. (Id. at pp. 27-28,121-122.) In addition, Dr. Cava estimated that 10 Plaintiff would be absent from work more than four times per month as a result of 11 her medical condition. (Id. at p. 28, 122.) 12 3. Dr. Ajit Raisinghani (Seagate Medical Group) 13 At the request of the Department of Social Services, Dr. Ajit Raisinghani 14 examined Plaintiff, reviewed her prior medical records, and prepared a report dated 15 June 8, 2010. (Id. at pp. 49-54.) During the examination, Plaintiff reported that she 16 suffers from chronic pain in her lower back and legs, and “the only time the pain 17 eases up is when she takes pain medications.” (Id. at p. 50.) Plaintiff also said that 18 she “feels a throbbing type pain in both feet around her toes,” and she has been 19 using a cane for the last month. (Id.) 20 Based on his examination, Dr. Raisinghani reported that the range of motion 21 in Plaintiff’s lumbar spine, upper extremities (shoulders, elbows, hands, and 22 wrists), and lower extremities (hips, knees, feet, and ankles) “is within normal 23 limits.” She also had a “full range of motion” in her neck. (Id. at p. 52.) Although 24 Dr. Raisinghani acknowledged that Plaintiff had previously had an MRI showing 25 “some mild spinal stenosis and mild disc protrusion,” he concluded that her 26 symptoms were “not typical for spinal stenosis.” (Id. at p. 53.) He also concluded 27 that the severity of her diagnosis was “not clear as the MRI was performed without 28 contrast” and the results “mentioned only mild stenosis.” (Id.) As a result of his –7– 13cv1125 1 examination, Dr. Raisinghani concluded that Plaintiff could stand, walk, or sit for 2 six hours in an eight-hour day; lift and carry 20 pounds occasionally and 10 pounds 3 frequently; and bend and crouch occasionally. (Id.) 4. 4 Other Medical Evaluations 5 Plaintiff’s medical records were reviewed by Dr. A. Wong on June 18, 2010 6 and by S. Brodsky, a Disability Officer, on August 11, 2010. Both concluded based 7 on the medical records that there is insufficient evidence in the record to support 8 Plaintiff’s claim that she is disabled by degenerative disc disease, diabetes, and/or 9 spinal stenosis. Both noted inconsistencies between the evidence in the medical 10 records and Dr. Cava’s assessment of Plaintiff’s functional capacity. (Id. at pp. 62- 11 64; 72-73.) 12 13 C. Expert Testimony at the August 11.2010 Hearing 1. John R. Morse. M.D. Medical Expert 14 Based on the record, Dr. Morse testified that he did not believe any of 15 Plaintiff’s documented medical impairments or combination of impairments 16 justified a finding that Plaintiff is disabled under the SSA. (ECF No. 23-2, at pp. 17 32-33.) Based on the available medical records, Dr. Morse acknowledged that 18 Plaintiff does “have chronic back pain probably due to some arthritic or 19 degenerative disc disease” and/or spinal stenosis. However, in his opinion, the 20 degree of spinal impairment indicated by the medical records is “relatively mild.” 21 (Id. at pp. 32-33, 36.) According to Dr. Morse, Plaintiff’s MRI report was “very 22 non-specific,” and there was no evidence in the record of “neurological deficits” or 23 loss of motor strength. (Id. at p. 36.) Dr. Morse also did not find any evidence in 24 the record to indicate Plaintiff’s diabetes is serious enough to meet Social Security 25 disability requirements. (Id. at pp. 33-34.) 26 In Dr. Morse’s opinion, the medical evidence indicates that Plaintiff is 27 capable of work at the “light level,” because he believes she can sit, stand, or walk 28 for six hours in an eight-hour day and lift 20 pounds occasionally and 10 pounds –8– 13cv1125 1 frequently. He was unable to locate any evidence in the record to support 2 manipulative, visual, communicative, or environmental limitations. However, Dr. 3 Morse believes Plaintiff should be limited to occasional climbing, balancing, 4 stooping, kneeling, crouching or crawling. (Id. at pp. 34-36.) 2. 5 John P. Kucher, Vocational Expert 6 A vocational expert testified that light level, unskilled work is available 7 locally and nationally for a person with the limitations described by the medical 8 expert, Dr. Morse. (Id. at pp. 47-48.) In addition, jobs are available at a lower level 9 (unskilled, sedentary) in the national economy but not locally. (Id. at pp. 48-49.) If 10 the vocational expert relied solely on the Plaintiff’s testimony and other 11 representations that she has extreme limitations, it would be accurate to say she 12 could not sustain a 40-hour week in the work place. (Id. at pp. 49-50.) 13 II. LEGAL STANDARD 14 The Court reviews de novo those portions of the Report to which objections 15 are made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in 16 whole or in part, the findings or recommendations made by the magistrate judge.” 17 Id. But “[t]he statute [28 U.S.C. § 636(b)(1)(c)] makes it clear that the district 18 judge must review the magistrate judge’s findings and recommendations de novo if 19 objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 20 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see also Schmidt v. 21 Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no 22 objections were filed, the district court had no obligation to review the magistrate 23 judge’s report). “Neither the Constitution nor the statute requires a district judge to 24 review, de novo, findings and recommendations that the parties themselves accept 25 as correct.” Reyna-Tapia, 328 F.3d at 1121. This rule of law is well-established in 26 the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 27 (9th Cir. 2005) (“Of course, de novo review of a [Report and Recommendation] is 28 only required when an objection is made to the [Report and Recommendation].”); –9– 13cv1125 1 Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) 2 (adopting report in its entirety without review because neither party filed objections 3 to the report despite the opportunity to do so); see also Nichols v. Logan, 355 F. 4 Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.). 5 III. DISCUSSION 6 The Commissioner’s decision must be affirmed upon review if it is supported 7 by substantial evidence and if the Commissioner applied the correct legal standards. 8 42 U.S.C. § 405(g); Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 9 1193 (9th Cir. 2004); Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005). 10 Under the substantial evidence standard, the Commissioner’s findings are upheld if 11 supported by inferences reasonably drawn from the record. Batson, 359 F.3d at 12 1193. 13 interpretation, the district court must defer to the Commissioner’s decision. Id. 14 “Substantial evidence means more than a scintilla but less than a preponderance. 15 Substantial evidence is relevant evidence which, considering the record as a whole, 16 a reasonable person might accept as adequate to support a conclusion.” Thomas v. 17 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (internal citations and quotations 18 omitted). A court must consider the record as a whole and weigh both the evidence 19 that supports and detracts from the Commissioner’s decision. Tackett v. Apfel, 180 20 F.3d 1094, 1097 (9th Cir. 1999) (citing Penny v. Sullivan, 2 F.3d 953 956 (9th Cir. 21 1993). If there is evidence in the record to support more than one rational 22 After applying this standard of review, the Report recommended that this 23 Court: (1) deny Plaintiff’s motion for summary judgment, (2) grant Defendant’s 24 cross-motion for summary judgment, and (3) deny Plaintiff’s request for a remand 25 to consider new evidence submitted with her motion for summary judgment and 26 with her opposition to Defendant’s cross-motion for summary judgment. 27 A. New Evidence Objection 28 Plaintiff attached documents to her motion for summary judgment and in – 10 – 13cv1125 1 support of her opposition to Defendant’s cross-motion for summary judgment that 2 were not included in the Administrative Record and not considered by the ALJ or 3 the Appeals Council. (See ECF Nos. 29 at pp. 3-19; 35 at pp. 5-26.) Plaintiff’s 4 new evidence consists of medical information dated from in or about December 5 2012 through September 2014, and various financial and personal documentation 6 dated in 2014. (Id.) 7 Plaintiff objects to the Report claiming that she “has clearly demonstrated 8 through initial evidence and subsequent evidence [that] she most definitely comes 9 under the definition of being totally disabled.” (ECF No. 39 at p. 1.) Plaintiff urges 10 the Court to consider her “new evidence” which is “clearly relevant” and 11 “material.” (Id. at pp. 1-2.) Plaintiff argues there was good cause for her failure to 12 incorporate such evidence into the Administrative Record because, as her 13 conditioned worsened, the “required diligence and energy to acknowledge and 14 pursue all relevant evidence simply did not exist.” (Id. at p. 2.) Instead, she relied 15 on third party professionals “to convey the relevancy of all medications and 16 treatments.” (Id.) However, “[a]s time progressed and conversations surrounding 17 her case magnified she began investigating all the related evidence which [she has] 18 subsequently submitted.” 19 evidence to her objection. (Id. at p. 4.) The Court construes this objection as 20 challenging the Report’s recommendation to deny Plaintiff’s request for a remand 21 to consider new evidence. (Id. at p. 2.) Plaintiff also attaches additional new 22 Under 42 U.S.C. § 405(g), a district court “may at any time order additional 23 evidence to be taken before the Commissioner of Social Security, but only upon a 24 showing that there is new evidence which is material and that there is good cause 25 for the failure to incorporate such evidence into the record in a prior proceeding.” 26 42 U.S.C. § 405(g); Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1164 27 (9th Cir. 2012). The Report properly construed the submission of new evidence as 28 a request for remand under Section 405(g). (Report at pp. 23-24.) For a court to – 11 – 13cv1125 1 order a remand, Plaintiff must demonstrate (1) the materiality of the new evidence, 2 and (2) good cause for failing to incorporate such evidence into the prior 3 proceeding. 42 U.S.C. § 405(g); Booz v. Sec’y of Health & Human Servs., 734 F.2d 4 1378, 1380 (9th Cir. 1984). 5 For new evidence to be material under section 405(g), the new evidence must 6 bear “directly and substantially on the matter in dispute.” Mayes v. Massanari, 276 7 F.3d 453, 462 (9th Cir. 2001). “At a minimum, such evidence must be probative of 8 mental or physical impairment.” Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 9 1985). In addition, the plaintiff must “demonstrate that there is a ‘reasonable 10 possibility’ that the new evidence would have changed the outcome of the 11 administrative hearing.” Mayes, 276 F.3d at 462. 12 “An implicit requirement is that the new evidence pertain to the time period 13 for which benefits are sought, and that it not concern later-acquired disabilities or 14 subsequent deterioration of a previously non-disabling condition.” 15 Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997); see also Sanchez v. Sec’y of Health 16 & Human Servs., 812 F.2d 509, 511-12 (9th Cir. 1987) (plaintiff failed to show that 17 the new evidence was material to and probative of his condition “at the relevant 18 time—at or before the disability hearing”); Ward v. Schweiker, 686 F.2d 762, 765 19 (9th Cir. 1982). Therefore, “[a]dditional evidence showing a deterioration in a 20 claimant’s condition significantly after the date of the Commissioner’s final 21 decision is not a material basis for remand, although it may be grounds for a new 22 application for benefits.” Id. (emphasis added); see also Sanchez, 812 F.2d at 511- 23 12. Jones v. 24 The ALJ determined that Plaintiff “has not been under a disability within the 25 meaning of the Social Security Act since February 22, 2010, the date the 26 application was filed.” (ECF No. 23-2 at p. 14.) The disability hearing took place 27 on August 11, 2011, and the ALJ issued a written opinion concluding that Plaintiff 28 did not qualify for disability insurance benefits on August 31, 2011. (ECF No. 23-2 – 12 – 13cv1125 1 at pp. 12, 26.) Plaintiff’s request for review was denied by the Appeals Council on 2 March 8, 2013. (Id. at pp. 2-3.) 3 Plaintiff’s new medical evidence includes a letter dated July 18, 2013 from 4 her treating physician for the six prior years, Dr. Cava, purportedly attaching 5 several documents. (ECF No. 29 at p. 3; see also ECF No. 35 at p. 23.) The letter 6 states that Plaintiff’s “prognosis for progress in her overall health is at best 7 negligible” given her advancing age, increase in prescribed medication, the need for 8 additional specialists, including Dr. Navarro and Dr. White, and an overall decline 9 in medical condition. (Id.) Plaintiff also provides a medical record documenting an 10 office visit with Dr. Rosa Navarro of Navarro Pain Control Group, Inc. on February 11 25, 2013 noting: 12 13 14 15 16 17 50 year with low back pain that radiates to bilateral lower extremities for four years. The pain is severe in the legs. The ultrasound for clot in the legs was negative. MRI 10.30.12 mild central spinal stenosis L34 and L45. The possible impingement of the exiting left L3 nerve root. I will ask for urine tox screen authorization. I will also ask for caudal epidural injection authorizations. In addition, the lumbar spine back brace authorization will be requested. The patient will start with gabapentin 100mg PO qhs. The primary care physician [was] prescribing Lortab. 18 19 (Id. at pp. 9-10.) Another MRI occurred on January 28, 2013 finding “Multilevel 20 cervical spondylosis. No central stenosis. Maybe impingement of the exiting right 21 C4 nerve root.” (Id. at p. 13.) Dr. Navarro evaluated Plaintiff “upon request from 22 Dr. Dan White for consultation for low back pain.” (Id. at p. 10.) Dr. Navarro 23 evaluated Plaintiff again on June 18, 2013 and documents Plaintiff’s first caudal 24 epidural injection. (Id. at pp. 15-16; see also ECF No. 35 at p. 12.) Plaintiff 25 received another caudal epidural injection on or around July 16, 2013. (Id. at p. 26 17.) Plaintiff also attaches four “Consultation Reports” from Dr. Daniel V. White 27 of “Brain & Spine Surgery” dated in or about December 2012, March 26, 2013, 28 May 28, 2013, and August 28, 2013. (Id. at pp. 11-12, 14; ECF No. 35 at p. 26.) In – 13 – 13cv1125 1 the August 28, 2013 report, Dr. White quotes, presumably, Plaintiff stating “none 2 of the injections helped . . . not even 1 minute.” (ECF No. 35 at p. 26.) Lastly, 3 Plaintiff attaches a letter from Dr. Cava addressed “To Whom It May Concern” 4 dated September 26, 2014 indicating Plaintiff needs to see a pain management 5 specialist but her referrals have been denied. (Id. at p. 22.)3 6 While the new evidence relates to a condition – low back pain – considered 7 by the ALJ, it does not relate to the time period under consideration, that is, the 8 time period on or before August 11, 2011.4 The new evidence indicates, at most, 9 deterioration after the disability hearing, which would be material to a new 10 application, but not probative of Plaintiff’s condition at the hearing. Sanchez, 812 11 F.2d at 511-12. Therefore, the Report properly determined the new evidence is not 12 material. Accordingly, Plaintiff’s objection to the Report’s recommendation to 13 deny Plaintiff’s request for a remand to consider new evidence is OVERRULED. 14 B. General Objection 15 Plaintiff also appears to object generally to the Report’s conclusion that 16 substantial evidence supports the ALJ’s decision. (Report at p. 26.) Plaintiff 17 argues that she “has clearly demonstrated through initial evidence . . . she most 18 19 20 21 22 23 24 25 26 27 28 3 Plaintiff also submits an estimate of benefits allegedly owed dated February 13, 2014 (ECF No. 29 at p. 19), an affidavit by her husband dated September 27, 2014 (ECF No. 35 at pp. 14-18), and an affidavit by her financial advisor dated September 27, 2014 (id. at pp. 20-21). However, these documents are not probative of any mental or physical impairment; therefore, the Court will not consider them in evaluating the request for remand. See Key, 754 F.2d at 1551. 4 As the Report discusses, there is an illegible note on the letterhead of Dr. White dated in or about December 2012, and a second MRI of the cervical spine dated January 28, 2013, both of which occurred while Plaintiff’s appeal was pending. (Report at p. 25.) However, these documents still do not relate to the time period under consideration, and the results of the MRI, as noted in the Report, appear equivocal at best. (Id.) Plaintiff also submits a “Follow-up Note” dated January 19, 2015 with her objections relating to her lower back pain. (ECF No. 39 at p. 4.) For the reasons stated herein, this evidence is also not material to the ALJ’s decision. – 14 – 13cv1125 1 definitely comes under the definition of being totally disabled” and asks the Court 2 to “re-evaluate the case.” (ECF No. 39 at pp. 1, 3.) It is well-settled, under Rule 3 72(b) of the Federal Rules of Civil Procedure, that a district court may adopt those 4 parts of a magistrate judge’s report to which no specific objection is made, provided 5 they are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 153 (1985); Fed. R. 6 Civ. P. 72 Advisory Comm. Notes (1983) (citing Campbell v. U.S. Dist. Ct., 501 7 F.2d 196, 206 (9th Cir. 1973)). While this objection to the Report is not specific, in 8 an abundance of caution, this Court conducted a de novo review of the Report. 9 Upon review, the Court OVERRULES this objection and ADOPTS the Report in 10 its entirety. 11 IV. CONCLUSION & ORDER 12 Based on the foregoing, IT IS HEREBY ORDERED that: 13 (1) Plaintiff’s Objections to the Report (ECF No. 39) are OVERRULED; 14 (2) The Report (ECF No. 37) is ADOPTED IN ITS ENTIRETY; 15 (3) Plaintiff’s motion for summary judgment (ECF No. 29) is DENIED; 16 (4) Defendant’s cross-motion for summary judgment is GRANTED (ECF No. 33); and 17 18 (5) Plaintiff’s request for a remand to consider new evidence submitted 19 with her motion for summary judgment (ECF No. 29) and with her 20 opposition to Defendant’s cross-motion for summary judgment (ECF 21 No. 35) is DENIED. 22 IT IS SO ORDERED. 23 24 DATED: March 27, 2015 25 26 27 28 – 15 – 13cv1125

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