Snoozy v Commissioner Social Security Admin., No. 1:2012cv02014 - Document 16 (D. Or. 2013)
Court Description: OPINION AND ORDER. For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 09/16/2013 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON KORRY SCOTT SNOOZY, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. PHILIP W. STUDENBERG 230 Main Street Klamath Falls, Oregon 97601 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 KATHRYN ANN MILLER Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900, M/S 901 Seattle, Washington 98104 Attorneys for Defendant 1 - OPINION AND ORDER 1:12-cv-02014-MA OPINION AND ORDER MARSH, Judge Plaintiff, Korry Scott Snoozy, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act). See 42 U.S.C. §§ 401-434. 42 u.s.c. § 405(g). This court has jurisdiction pursuant to For the reasons set forth below, I affirm the final decision of the Commissioner. PROCEDURAL BACKGROUND Plaintiff protectively filed an application for DIB on January 9, 2009, alleging disability beginning September 15, 1999 due to heart conditions including a heart attack, atrial fibrillation, and hypertension, as well bipolar disorder and anxiety. Tr. 172. The claim was denied initially and upon reconsideration. A hearing was held before an Administrative Law Judge (ALJ) on April 28, 2011, at which plaintiff was represented by counsel and testified. In addition, vocational expert (VE) Frank Lucas was present throughout. the hearing and testified. Tr. 70-85. On May 27, 2011, the ALJ issued a decision denying plaintiff's application. Tr. 44-53. to the Appeals Council, Melnick, M.D., Ph.D., Plaintiff submitted additional evidence including a medical report but the Appeals Council from Sharon determined the additional evidence was not relevant to the period on or before the date the ALJ issued his decision, and accordingly did not consider 2 - OPINION AND ORDER Tr. 1-2, 6. Dr. Melnick's report or make it part of the record. After Council Appeals the review, declined plaintiff timely appealed. FACTUAL BACKGROUND Born on November 3, 1964, plaintiff was 34 years old on the alleged onset date of disability and 46 years old on the date of Plaintiff has a high school equivalency and past the hearing. relevant work as Assembler, a Stores, in Laborer Roofer, and Garbage Collector. In addition to his hearing testimony, plaintiff submitted an Adult Function Report. Tr. 202-09. Plaintiff's ex-wife, Valerie Tr. 194- Pederson, also submitted a Third Party Function Report. 201. Nancy Cloak, performed a Comprehensive Psychiatric M.D., Evaluation and submitted her opinion. Tr. 308-14. THE ALJ'S DISABILITY ANALYSIS The Commissioner has a established five-step sequential Bowen v. process for determining whether a person is disabled. Yuckert, 482 U.S. 137, C.F.R. 20 Each step §§ is The claimant bears the burden of proof at potentially dispositive. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to Cir. 1999). show that (1987); 416.920 (a) (4) (i)- (v). 404.1520(a) (4) (i)-(v), Steps One through Four. 140-42 a significant 3 - OPINION AND ORDER number of jobs exist in the national 482 U.S. at See Yuckert, economy that the claimant can perform. 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that plaintiff has not engaged 2008. in substantial gainful activity since November 6, C.F.R. See 20 404.1571 et seq.; Tr. 46. §§ At Step Two, the ALJ determined that plaintiff's history of disorder are severe impairments. personality and antisocial mood disorder, fibrillation, atrial See 20 C.F.R. 404.1520(c); Tr. § 46-47. At Step Three, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meet or medically equal any C.F.R. 20 See impairment. listed 404.1520(d), §§ 404.1525, 404 .1526; Tr. 47-48. The ALJ found capacity further that plaintiff the has except that plaintiff is to perform light work, (RFC) limited unskilled to work, no At Step Step only and no frequent Tr. 48-51. Four, the ALJ found perform any past relevant work. At contact, public occasional co-worker contact with no teamwork, supervision. functional residual Five, however, that See 20 C.F.R. the ALJ is plaintiff found § unable to 404.1565; Tr. 51. that jobs exist in significant numbers in the national economy that plaintiff can perform, including Textile Stuffer, Article Sorter. See 20 C.F.R. 4 - OPINION AND ORDER §§ Night Cleaner, and Laundry 404.1569, 404.1569(a); Tr. 51-52. Accordingly, the ALJ found that plaintiff was not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff raises only one issue on review. Plaintiff argues that the Commissioner erred in failing to consider Dr. Melnick's opinion submitted to the Appeals Council. STANDARD OF REVIEW The court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence 405(g); Andrews v. Shalala, in the 53 F.3d 1035, record. 1039 42 U.S. C. (9th Cir. § 1995). ''Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'' 53 F.3d at 1039. The court must weigh all of the evidence, whether it supports or detracts from the Commissioner's decision. v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). susceptible to Commissioner's 1039-40. Andrews, more than decision must one be rational upheld. Martinez If the evidence is interpretation, Andrews, 53 F. 3d the at If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." 253 F.3d 1152, 1156 (9th Cir. 2001). Ill 5 - OPINION AND ORDER Edlund v. Massanari, DISCUSSION "When the Appeals Council declines review, 'the ALJ' s decision becomes the final decision of the Commissioner,' and the district court reviews that decision for substantial evidence, based on the record as a whole." Brewes v. Comm'r Soc. Sec. Admin., 1157, Cir. 1161-62 (9th 2012) (citations 682 F.3d omitted). "[T]he administrative record includes evidence submitted to and considered by the Appeals Council." Id. at 1162 Commissioner's regulations permit (emphasis added), claimants to submit "The new and material evidence to the Appeals Council and require the Council to consider that evidence in determining whether to review the ALJ's decision, so long as the evidence relates to the period on or before the ALJ's decision." Id. (citing 20 C.F.R. § 404.970(b)). If a claimant submits "evidence which does not relate to the period on or before the date of the administrative law judge hearing decision, the Appeals Council will return the additional evidence to [the claimant] with an explanation as to why it did not accept the additional evidence and will advise right to file a new application." [the claimant] 20 C.F.R. § of [his] 404.976(b) (1) Here, plaintiff submitted Dr. Melnick's report, dated March 6, 2012, to the Appeals Council. Tr. 2. The Appeals Council refused to consider Dr. Melnick's report, however, because it was "about a later time," and "does not affect the decision about whether [plaintiff was] disabled beginning on or before May 27, 2011," the 6 - OPINION AND ORDER date of the ALJ's decision. Id. Therefore, the Appeals Council did not include Dr. Melnick's report in the record, report to plaintiff, application. and explained that he could returned the file a new Id. The Appeals Council's rejection of the new evidence, followed the Commissioner's regulations. then, To the extent plaintiff argues that the Appeals Council improperly determined that Dr. Melnick's report did not relate to the period before the ALJ' s decision, there is no evidence before the court demonstrating that Dr. Melnick's report in fact related to the relevant period. On the record before the court, the Appeals Council's action complied with the Commissioner's regulations. Thus, the Appeals Council did not err in failing to consider Dr. Melnick's opinion. CONCLUSION For the foregoing reasons, the decision of the ALJ AFFIRMED. IT IS SO ORDERED. DATED this /~day of September, 2013. Malcolm F. Marsh United States District Judge 7 - OPINION AND ORDER is
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