Shepherd v. Commissioner Social Security Administration, No. 3:2009cv06022 - Document 24 (D. Or. 2010)
Court Description: OPINION and ORDER: Adopting Findings and Recommendation 19 . Signed on 3/9/10 by Judge Michael W. Mosman. (sm)
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FILEIrl0 tm 0915ffi)Soc~ IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DNISION KIMBERLY SHEPHERD, N . CV 09-6022-PK Plaintiff, OP . ON AND ORDER v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. MOSMAN,J., OnJanuary25,2010,MagistrateJudgePapakissuedFindingsandReeo endation("F&R") (#1~) ~ ~ above-captioned case ~ending that I AFFIRM 1he Co1Ssi~n~s decision. PlamtIff Kimberly Shepherd filed objections to the F&R (#22), and the Co SSloner filed a response to Ms. Shepherd's obJections (#23). DISCUSSION I. Standard of Review I The magistratejudge makes only recommendations to the court,. to whicn any party may file I. I . . . d wntten 0 b" .. ~ections. Th court IS not b oun· by the recommend ' .e ations o.f" the m~strate JUd'ge, b . .ut retains responsibility for making the final determination. The court is genera1l1 required to make a de novo determination ofthose portions ofthe report or specified findings or commendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the co PAGE 1 - OPINION AND ORDER is not required to reView, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions oftheF&R to which no objections are addressed. See Thomas v. Am, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia. 328 F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to review the F&R depends on whether or not objections have been filed, in either case, I aiD. free to accept, reject, or modify any ofthe magistrate judge's F&R. 28 U.S.C. § 636(b)(I)(C). U. Failure to Consider New Evidence Judge Papak properly concluded that the Appeals Council did not err by failing to consider new evidence submitted after the ALJ rendered his decision. (See F&R (#19) 5-8.) Ms. Shepherd asserts that she could not have submitted new evidence from a doctor's evaluation because "no appointment had yet been scheduled." (Objections (#22) 2.) Ms. Shepherd's argument is unpersuasive in light of the ALI's many efforts to accommodate Ms. Shepherd's delays, which included postponing the ALJ hearing twice and keeping the record open after the August 7, 2007 hearing to allow Ms. Shepherd to attend more medical appointments and submit additional documentation. Tr. 38, 358, 362. 367-68, 370, 407-08. Ms. Shepherd did not schedule her first appointment with Dr. Cheung until July 7, 2008, exactly eleven months after the ALJ hearing. and she did not schedule her consultation at the Oregot:1 Health Sciences University ("OHSU tI ) clinic until May 19, 2009, over nine months after the AU hearing. It was unreasonable to expect the ALJ to delay his decision for that amount oftime. As it was, the AU waited almosttluee months to issue a decision, without receiving any documentation from Ms. Shepherd. I agree with JudgePapak that "[t]he record clearly demonstrates that [Ms.] Shepherd was given every opportunity to submit additional medic.al records, yet failed to do so" and that Ms. Shepherd has not shown good cause for I PAGE 2 - OPINION AND ORDER . that failure. (F&R (#19) 8.) Ms. Shepherd raises additional arguments regarding her failure to submit documents from a visit to OHSU-the visit for which the August 7, 2007 hearing was ostensibly left open. At the hearing, the AU stated several times that it was important for Ms. Shepherd to keep him informed of the date of that appointment. Tr. 368, 370,408. Although Ms. Shepherd argues that she "did advise the Eugene ODAR office that her appointment at OHSU had been postponed" (Objections (#22) 2), this vague factual assertion is unsupporte<i by affidavit or any other evidence that could give rise to good cause. Aside from the failure to show good cause for her delay, the results bfthe OHSU evaluation are not material in that they are not reasonably likely to change the ALJ's opinion. See Mayes v; , . Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (holding that remand for colideration of new I evidence is appropriate where evidence is material, meaning it has a reasonable possibility of changing the outcome, and the claimant has shown good cause for failing to pr~duce the evidence ~lier). As Judge P~pak no~ the AU resolved Step ~WOin Ms. Shepherd's t'avor, and any new eVIdence would bennmatenal to the Step Two analysIs. (F&R(#19) 7.) To I eeXtent the AU incorporated Ms. Shepherd's Hepatitis C di~osis into his Residual Functio~ Capacity ("RFC") , I assessment, he focused on the symptoms ofthat condition rather than the existence bfthecondition itself. And the OHSU test results are entirely consistent with the evidence the AU relied upon. The OHSU records state that Ms. Shepherd had a "[c]ompletely normal liver test'f and that her liver condition is "stable, \I Tr. 22, 24, which is no different from evidence the AU coq.sidered, including a treating physician's clinical fmdings that Ms. Shepherd's "liver enzymes were quite stable," she "exhibited no adverse structural liver changes or abnormallivet function:' PAGE3 - OPINION AND ORDER d the "abdominal ultrasound of [her] liver was normal." Tr. 38. For the.foregoing reasons, I agree that the Appeals Council did not err by refusing to consider new evidence, and remand for reconsideration of this evidence is not warranted. m. Failure to Credit Treatine and Examinine Physicians Ms. Shepherd argues that the AU erred by relying "upon anon-ex~g physician to challenge the fmdings of both an examining physician, Dr. Nolan, and Ms. Shepherd's treating phySican," Dr. Somera. (Objections (#22) 3.) Although the opinion ofa nonex~gphysician is ·not sufficient, in and ofitself, tojustify rejecting the opinion ofan eXamining of[ treating physician, an ALJmay rely on a nonexamining physicians' opinion and reject the testimfny of a treating or I examining physician ifthe ALJ gives "specific, legitimate reasons" for doing sd, and those reasons I . . are supported by substantial evidence in the record. See Lester 'V. Chater, 81 F.3dl821, 831 (9th Cir. 1995). I acknowledge that reasons and medical evidence "that may be suffilient to justify the rejection ofan examiningphysican's opinion would not necessarily be sufficient to reject a treating physician's opinion." Id at 831 n.8. Although the AU did credit the opinion ofDr. Eden, anonexamining, ptsieian, Dr. Eden's opinion ~not. the only evidence 1)Iat supported the~s ~iSiOIL Rather, the f consideredDr. E~e~'S oPtnl~n ill the cont~~ ofthe recor~ as a w~o~e, illcluding laboratory rejS' x-rays, ~d the clinical findings of examJDmg and treating phySICIans. Tr. 37-38. Importantly, the ALJ did not discredit either Dr. Nolan's or Dr. Somera's opinion in its entirety. For exattlPle,IDr ¢Nolan, opined that Ms. Shepherd could sit for at least six hours in an eight-hour day, could stand for at least two hours in an eight-hour day, and could lift up to thirty pounds, which is consistent With the AU's RFC assessment. Tr. 34,37,235. When the ALJ discredited portions of Dr. Nolan's or Dr. Somera's PAGE 4 - OPINION AND ORDER opinion, the ALJ based his decision on several inconsistencies between the physicians' opinions and their clinical findings, as well as inconsistencies between the physicians' opinions and Ms. Shepherd's dailyaetivities. Tr. 37-39. Both theAU's RFC assessment and his reasons for rejecting portions of Dr~ Nolan's and Dr. Somera's opinions are supported by substantial evidence in the record. IV. Failure to Meet Burden at Step Five Ms. Shepherd argues that the ALl erred by failing to pose a hypothet~al question to the Vocational Expert that containedthe limitations identified byDr. Nolan and Dr. Somera. I agree with Judge Papak's conclusion that the ALJ properly "elicited testimony from the [Vocational Expert] based on the RFC assessment and was not required to incorporate additional limitations he found unsupported by the record. It (F&R (# 19) 16 (citing Osenbrock v. Apfel, 240F.2d ~ 157, 1163-65 (9th Cir.2001»).) v. Conclusion For the foregoing reasons, I agree with Judge Papak's recoIiUilendationJ and I ADOPT the I F&R (#19) as my own opinion. The Commissioner's decision is AFFIRMED. I I IT IS SO ORDERED. ~ DATED this~'ttly of March, 2010. ,MJW ~ . ;- MICHAEL~. United States District Court .PAGE 5 - OPINION AND ORDER
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