Esperanza Marchbanks v. Carolyn W. Colvin, No. 8:2013cv01778 - Document 23 (C.D. Cal. 2014)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. For all of the forgoing reasons, the decision of the Administrative Law Judge is affirmed. (See Order for complete details) (afe)

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Esperanza Marchbanks v. Carolyn W. Colvin Doc. 23 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 ) No. SA CV 13-1778-AS ) ) Plaintiff, ) MEMORANDUM AND OPINION v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the ) Social Security Administration, ) ) Defendant. ) ESPERANZA MARCHBANKS, ) 17 18 19 PROCEEDINGS 20 21 22 23 24 25 26 27 Plaintiff Esperanza Marchbanks (“Plaintiff”), asserts disability since March 7, 2007, based on alleged physical impairments. 186—192, 224). (A.R. The Administrative Law Judge (“ALJ”) examined the Certified Administrative Record (“A.R.”) and heard testimony from Plaintiff and a vocational expert (“VE”) on July 20, 2011, and April 4, 2012. (A.R. 73—131). On May 1, 2012, the ALJ denied Plaintiff 28 1 Dockets.Justia.com 1 benefits in a written decision. 2 Appeals Council denied review. (A.R. 20—42). On July 15, 2013, the (A.R. 5—10). 3 On November 19, 2013, Plaintiff filed a Complaint, pursuant to 4 42 U.S.C. § 405(g), alleging that the Social Security Administration 5 erred in denying her disability benefits (Docket Entry No. 3). 6 April 15, 2014, Defendant filed an Answer to the Complaint (Docket 7 Entry No. 13), and the Certified Administrative Record (Docket Entry 8 No. 14). 9 States Magistrate Judge (Docket Entry Nos. 9, 10). On The parties have consented to proceed before a United On October 23, 10 2014, the parties filed a Joint Stipulation (“Joint Stip.”) setting 11 forth their respective positions on Plaintiff’s claim (Docket Entry 12 No. 22). 13 RELEVANT ADMINISTRATIVE FINDINGS 14 15 Based on a review of the record and testimony from a VE, the ALJ 16 17 found, at step 18 functional capacity (“RFC”) to return to her past relevant work as a 19 home 20 cashier/checker. 21 Plaintiff could work as a “bakery worker conveyer line” or a “counter 22 clerk 23 Dictionary of Occupational Titles (“DOT”), testified that these jobs 24 existed 25 economies. health photo in five, aide, that a (A.R. certified 36). finishing.” significant Plaintiff The (A.R. numbers did nursing ALJ 37). in (A.R. 37, 101). 26 27 28 2 not both did The the have the assistant, find, VE, or however, relying local residual and on a that the national STANDARD OF REVIEW 1 2 3 This court reviews the Administration’s decisions to determine 4 if: (1) the Administration’s findings are supported by substantial 5 evidence; and (2) the Administration used proper legal standards. 6 Smolen 7 evidence can reasonably support either affirming or reversing the 8 ALJ’s conclusion, [a] court may not substitute its judgment for that 9 of the ALJ.” 10 v. Chatter, 80 F.3d 1273, 1279 (9th Cir. 1996). “[I]f Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). 11 DISCUSSION 12 13 Plaintiff 14 contends that the ALJ in finding that a 15 substantial number of “bakery 16 clerk photo finishing” jobs exist nationally. 17 In support of this claim, Plaintiff claims that statistics found in 18 the Occupational Outlook Handbook (“OOH”) conflict greatly with those 19 found in the DOT, on which the VE relied. 20 was represented by counsel at the administrative hearing, did not 21 raise 22 Therefore, this Court must determine whether or not it can consider 23 the new evidence for the first time on appeal. this issue before the worker erred ALJ or conveyer line” and “counter (Joint Stip. 4—11). However, Plaintiff, who before the Appeals Council. 24 25 “[W]hen claimants are represented by counsel, they must raise 26 all issues and evidence at their administrative hearings in order to 27 preserve them on appeal.” 28 Cir. 1999) (affirming Meanel v. Apfel, 172 F.3d 1111, 1115 (9th decision of 3 the ALJ because plaintiff had 1 waived the 2 introduced for the first time on appeal). 3 of new statistical evidence, as “[t]he ALJ, rather than this Court, 4 [is] in the optimal position to resolve the conflict between [a 5 claimant’s] new evidence and the statistical evidence provided by the 6 VE.” 7 “deprive[] the Commissioner of an opportunity to weigh and evaluate 8 that evidence.”1 9 Cir. 2000). Id. issues related to new statistical evidence that was This is true in the case Here, the Court’s consideration of the new evidence would Silveira v. Apfel, 204 F.3d 1257, 1260 fn. 8 (9th The Court finds that because Plaintiff was represented 10 by counsel at her hearing before the ALJ and failed to raise this 11 issue at the hearing, seek reconsideration of the ALJ’s decision, or 12 raise this issue before the Appeals Council, she has waived the issue 13 on appeal. 14 ALJ erred is limited to a review of the record at the time of the 15 administrative hearing, and the additional evidence submitted to the 16 Appeals Council.2 As a result, this Court’s determination of whether the 17 18 19 20 21 1 25 If an issue is “a pure question of law and the Commissioner will not be unfairly prejudiced by [Plaintiff’s] failure to raise the issue below,” it may be raised for the first time on appeal. Silveira v. Apfel, 204 F.3d at 1260 fn. 8 (citing United States v. Thornburg, 82 F.3d 886, 890 (9th Cir. 1996)). This principal does not apply here because the new statistical evidence that Plaintiff raises on appeal is a question of fact. 26 2 22 23 24 27 28 The additional evidence submitted to the Appeals Council consisted of a single brief that does not mention the issue that Plaintiff now raises before this Court. (A.R. 296—300). 4 CONCLUSION 1 2 3 The only issue that Plaintiff has raised is one which has been 4 waived because it was not raised below. 5 parties have stipulated to the accuracy of the ALJ’s medical and non- 6 medical evidentiary findings. 7 the ALJ need not be examined, as there is no contention that the ALJ 8 erred in any of her other findings. (Id.) (Joint Stip. 4). Both As a result, the decision of 9 ORDER 10 11 12 13 For all of the forgoing reasons, the decision Administrative Law Judge is affirmed. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 18 19 Dated: November 4, 2014 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 5 of the

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