Kepler v. Social Security Administration Office of the General Counsel, No. 2:2020cv02118 - Document 19 (D. Nev. 2021)
Court Description: ORDER Granting 18 Countermotion to Affirm the Agency Decision and the Court DENIES the 18 -1 Motion to Remand. Signed by Magistrate Judge Nancy J. Koppe on 10/6/2021. (Copies have been distributed pursuant to the NEF - JQC)
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Kepler v. Social Security Administration Office of the General Counsel Doc. 19 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 CAMILLA KEPLER, 7 Case No. 2:20-cv-02118-NJK Plaintiff(s), 8 v. 9 KILOLO KIJAKAZI, 10 11 ORDER Defendant(s). This case involves judicial review of administrative action by the Commissioner of Social 12 Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits 13 pursuant to Title XVI of the Social Security Act. Currently before the Court is Plaintiff’s motion 14 to remand based on new evidence. Docket No. 18-1. 1 The Commissioner filed a cross-motion to 15 affirm. Docket No. 18. No reply was filed. 16 I. STANDARDS 17 A. 18 The standard for determining disability is whether a social security claimant has an Disability Evaluation Process 19 “inability to engage in any substantial gainful activity by reason of any medically determinable 20 physical or mental impairment which can be expected . . . to last for a continuous period of not 21 less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(3)(A). That 22 determination is made by following a five-step sequential evaluation process. Bowen v. Yuckert, 23 482 U.S. 137, 140 (1987) (citing 20 C.F.R. §§ 404.1520, 416.920). The first step addresses 24 whether the claimant is currently engaging in substantial gainful activity. 20 C.F.R. §§ 25 1 As Plaintiff is proceeding pro se, the Court construes her filings liberally. Erickson v. 26 Pardus, 551 U.S. 89, 94 (2007). Rather than file her motion with the Court, Plaintiff only served it on the Commissioner. See Docket No. 18-1 at ¶¶ 2-3. The Commissioner attached a copy of 27 Plaintiff’s motion to its cross-motion. Given the circumstances, the Court discharges the order to show cause why the case should not be dismissed for failure to prosecute. See Docket No. 17. 28 The Court will proceed to resolve Plaintiff’s motion and the Commissioner’s cross-motion. 1 Dockets.Justia.com 1 404.1520(b), 416.920(b). 2 The second step addresses whether the claimant has a medically 2 determinable impairment that is severe or a combination of impairments that significantly limits 3 basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). The third step addresses whether the 4 claimant’s impairments or combination of impairments meet or medically equal the criteria of an 5 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 6 404.1525, 404.1526, 416.920(d), 416.925, 416.926. There is then a determination of the 7 claimant’s residual functional capacity, which assesses the claimant’s ability to do physical and 8 mental work-related activities. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step addresses 9 whether the claimant has the residual functional capacity to perform past relevant work. 20 C.F.R. 10 §§ 404.1520(f), 416.920(f). The fifth step addresses whether the claimant is able to do other work 11 considering the residual functional capacity, age, education, and work experience. 20 C.F.R. §§ 12 404.1520(g), 416.920(g). 13 B. 14 After exhausting the administrative process, a claimant may seek judicial review of a Judicial Review 15 decision denying social security benefits. 42 U.S.C. § 405(g). The Court must uphold a decision 16 denying benefits if the proper legal standard was applied and there is substantial evidence in the 17 record as a whole to support the decision. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). 18 Substantial evidence is “more than a mere scintilla,” which equates to “such relevant evidence as 19 a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, ___ 20 U.S. ____, 139 S.Ct. 1148, 1154 (2019). “[T]he threshold for such evidentiary sufficiency is not 21 high.” Id. 22 II. BACKGROUND 23 A. 24 On May 20, 2015, Plaintiff filed an application for supplemental security income with an Procedural History 25 alleged disability onset date stated as unknown. See, e.g., Administrative Record (“A.R.”) 19726 27 2 The five-step process is largely the same for both Title II and Title XVI claims. For a 28 Title II claim, however, a claimant must also meet insurance requirements. 20 C.F.R. § 404.130. 2 1 205. 3 On October 13, 2015, Plaintiff’s claim was denied initially. A.R. 91-94. On June 16, 2016, 2 Plaintiff’s claim was denied on reconsideration. A.R. 99-103. On August 17, 2016, Plaintiff filed 3 a request for a hearing before an administrative law judge. A.R. 104-06. On 4 December 28, 2017, Plaintiff and a vocational expert appeared for a hearing before ALJ Norman 5 Bennett. A.R. 54-58. That hearing was continued to allow Plaintiff an opportunity to seek 6 representation. A.R. 57. On May 18, 2018, Plaintiff and a vocational expert again appeared for a 7 hearing before ALJ Norman Bennett. A.R. 35-53. On June 28, 2018, the ALJ issued an 8 unfavorable decision finding that Plaintiff had not been under a disability since the date the 9 application was filed. A.R. 19-30. On May 31, 2019, the ALJ’s decision became the final decision 10 of the Commissioner when the Appeals Council denied Plaintiff’s request for review. A.R. 9-13. 11 Plaintiff received extensions to file a civil action. A.R. 1-8. On November 18, 2020, 12 Plaintiff commenced this action for judicial review. Docket No. 1. 13 B. 14 The ALJ’s decision followed the five-step sequential evaluation process set forth in 20 The Decision Below 15 C.F.R. § 416.920. A.R. 19-30. At step one, the ALJ found that Plaintiff has not engaged in 16 substantial gainful activity since the application date. A.R. 23. At step two, the ALJ found that 17 Plaintiff has the following severe impairments: status post back injury, diffuse nerve pain due to 18 remote history of burns, anemia, anxiety disorder, and depressive disorder. A.R. 23-24. At step 19 three, the ALJ found that Plaintiff does not have an impairment or combination of impairments 20 that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, 21 Subpart P, Appendix 1. A.R. 24-25. The ALJ found that Plaintiff has the residual functional 22 capacity to perform the light work as defined by 20 C.F.R. § 416.967(b) consisting of (1) lifting 23 or carrying up to 20 pounds occasionally and 10 pounds frequently; (2) standing and/or walking 24 for up to 6 hours in an 8-hour workday; (3) sitting for up to 6 hours in an 8-hour workday; (3) 25 occasionally balancing, stopping, kneeling, crouching, crawling, or climbing ramps or stairs, but 26 never climbing ropes, ladders, or scaffolds; and (4) performing simple, repetitive tasks with 27 28 3 The record later reflects an alleged onset date of August 1, 2009. E.g., A.R. 19. 3 1 reasoning levels of 1-2, consistent with unskilled work. A.R. 25-29. At step four, the ALJ found 2 that Plaintiff has no past relevant work. A.R. 29. At step five, the ALJ found that jobs exist in 3 significant numbers in the national economy that Plaintiff can perform based on Plaintiff’s age, 4 education, work experience, and residual functional capacity. A.R. 29-30. In doing so, the ALJ 5 defined Plaintiff as a younger individual aged 18-49 at the time the application was filed with 6 limited education and ability to communicate in English. A.R. 29. The ALJ found the 7 transferability of job skills to be immaterial. A.R. 29. The ALJ considered Medical Vocational 8 Rules, which provide a framework for finding Plaintiff not disabled, along with vocational expert 9 testimony that an individual with the same residual functional capacity and vocational factors 10 could perform work as an assembler of small products, inspector, and marker. A.R. 29-30. 11 Based on all of these findings, the ALJ found Plaintiff not disabled since the date of the 12 application. A.R. 30. 13 III. ANALYSIS 14 Plaintiff raises a single issue on appeal, asserting that remand is appropriate for the ALJ to 15 consider new evidence. Docket No. 18-1. 4 In particular, Plaintiff attached 12 documents to her 16 motion that she argues warrant remand. The Commissioner disagrees, arguing that the evidence 17 is outside of the relevant time period, redundant of the material considered below, or is otherwise 18 not material. See Docket No. 18 at 6-11. 5 19 A sentence six remand is appropriate when “new evidence has come to light that was not 20 available to the claimant at the time of the administrative proceeding and that evidence might 21 change the outcome of the prior proceeding.” Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). As 22 to this latter requirement, the newly-presented evidence must be material. 42 U.S.C. § 405(g). In 23 this context, materiality means that the evidence must bear directly and substantially on the matter. 24 Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001). “[E]vidence is sufficiently material to 25 require a remand[] only where there is a reasonable possibility that the new evidence would have 26 27 4 In social security parlance, this is known as a “sentence six remand.” 28 5 Pin-citations to the briefing reference the pagination provided by CMECF. 4 1 changed the outcome of the [Commissioner’s] determination had it been before [her].” Booz v. 2 Sec’y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984) (quotation marks and 3 citation omitted); see also 42 U.S.C. § 405(g). In addition, the new evidence must be probative of 4 the claimant’s condition as it existed at or before the time of the disability hearing. See Sanchez 5 v. Sec’y of Health & Human Servs., 812 F.2d 509, 511-12 (9th Cir. 1987). The claimant bears the 6 burden of establishing grounds for a sentence six remand. See Mayes, 276 F.3d at 462. 7 Plaintiff has not met that burden here. First, a significant number of the exhibits on which 8 she now relies post-date the ALJ’s adverse decision below (June 28, 2018). In particular, Plaintiff 9 submits a letter relating to an emotional support animal dated February 13, 2020, Docket No. 1810 1 at 9; a treatment note dated July 8, 2021, id. at 17; 6 and several prescriptions that post-date the 11 ALJ’s decision, id. at 10, 14, 16, 18. Plaintiff has not explained how such evidence is material. 12 The proper recourse when obtaining evidence of disability well outside the relevant timeframe is 13 for the claimant to file a new application for disability. See, e.g., Carlson v. Saul, 2020 WL 14 7050027, at *5 (D. Nev. Nov. 16, 2020) (discussing Osenbrock v. Apfel, 240 F.3d 1157, 1164 n.1 15 (9th Cir. 2001) and Sanchez, 812 F.2d at 512), adopted, 2020 WL 7048268 (D. Nev. Dec. 1, 16 2020). 7 Plaintiff has not provided a basis on which to chart a different course in this case. 17 Second, some of the exhibits on which Plaintiff relies are redundant of the information 18 already before the ALJ. Two of these exhibits relate to prescriptions for Oxycodone and 19 Trazodone from January 5, 2018. Docket No. 18-1 at 13, 15. Plaintiff already testified below to 20 taking Trazodone, as well as pain medications. A.R. 42. Moreover, the ALJ expressly 21 acknowledged the record that Plaintiff “was treated with various medications[,] including . . . 22 Trazadone . . . [and] Oxycodone . . .” A.R. 26. Plaintiff also submits a document that is a mostly 23 blank and incomplete police report apparently regarding a car accident from 2017. See Docket 24 No. 18-1 at 19. Although Plaintiff explains in her motion that this car accident aggravated her 25 6 This treatment note addresses Plaintiff’s back pain, but appears to relate more directly to 26 a pneumonia diagnosis due to the Covid-19 virus. Docket No. 18-1 at 17. 27 7 As the Commissioner notes on appeal, some of the prescriptions are also redundant of the information already considered by the ALJ. Docket No. 18 at 10 n.10. Such evidence is also not 28 material for that reason as discussed below. 5 1 condition, Docket No. 18-1 at 6-7, she already testified to the ALJ about the existence of this 2 accident and the resulting back pain. A.R. 42 (“about almost a year ago, I was in [an] accident . . 3 . [the result of which was that] I was having back pain”). The ALJ expressly acknowledged this 4 testimony and found that Plaintiff’s severe impairments include status post-back injury. A.R. 26, 5 28. The Ninth Circuit has instructed that remand is not necessary for an ALJ to consider evidence 6 that is cumulative of the existing record. See Fair v. Bowen, 885 F.2d 597, 606 (9th Cir. 1989). 7 In short, the exhibits on which Plaintiff relies are outside the relevant timeframe and/or are 8 redundant of the information already in the record that the ALJ addressed below. 8 Accordingly, 9 Plaintiff has not met her burden of establishing the materiality for any of the exhibits. 10 IV. CONCLUSION 11 For the reasons discussed above, the Court DENIES the motion to remand (Docket No. 12 18-1) and GRANTS the countermotion to affirm (Docket No. 18). The Clerk’s Office is instructed 13 to ENTER FINAL JUDGMENT accordingly and to CLOSE this case. 14 IT IS SO ORDERED. 15 Dated: October 6, 2021. 16 17 ____________________________________ NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 8 The final document is a copy of a box with an eardrop solution. Docket No. 18-1 at 1125 12. No date is provided nor is any explanation made as to how this document is material. The Commissioner guesses that the ear drops relate to an incident in which Plaintiff had a spider in her 26 ear. See Docket No. 18 at 8 & n.6. At bottom, Plaintiff bears the burden of establishing grounds for a sentence six remand. See Mayes, 276 F.3d at 462. Merely attaching this document without 27 meaningful explanation is insufficient to carry that burden. Cf. Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.4 (9th Cir. 1996) (identifying an issue without providing meaningfully developed 28 argument is insufficient to raise that issue on appeal). 6
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