Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On July 15, 2014, Plaintiff filed a pro se complaint, seeking review of the Administration's denial of disability benefits. On February 27, 2015, Plaintiff filed a "request" for summary judgment or remand. On April 1, 2015, Defendant filed an opposition to Plaintiff's request. Defendant's opposition requests affirmance of the administrative decision. On April 3, 2015, Plaintiff filed a "supplement." The Court has taken the matter under submission without oral argument. See L.R. 7-15; "Order, " filed July 17, 2014.
BACKGROUND
Plaintiff, a former pizza delivery driver, wholesale trade packer, stocker, car wash attendant, and warehouse worker, asserted disability since April 7, 2009, based on, inter alia, alleged fatigue, mercury poisoning, headaches, and head injury (Administrative Record ("A.R.") 114-32, 154-55). An Administrative Law Judge ("ALJ") reviewed the record and heard testimony from Plaintiff and a vocational expert (A.R. 18-25, 37-63, 153-306).
The ALJ found Plaintiff has severe right eye blindness but retains the residual functional capacity to perform a full range of work at all exertion levels, with "the following nonexertional limitations: the claimant is blind in the right eye. The claimant has no peripheral vision on the right, and has mildly reduced depth perception" (A.R. 20, 22). The ALJ determined that, with this capacity, Plaintiff could perform his past relevant work and therefore is not disabled (A.R. 24 (adopting vocational expert testimony at A.R. 57-59)). The Appeals Council denied review after considering certain additional medical records (A.R. 1-5; see also A.R. 307-14 (records)).
On March 13, 2006, and August 16, 2010, Plaintiff previously applied for and was denied disability benefits at the initial consideration level (A.R. 135, 137). These applications alleged disability onset dates of April 18, 2005, and April 7, 2009, respectively (id.). Plaintiff did not appeal the denial of either of these prior applications (id.; Plaintiff's Request, p. 3).
Plaintiff seeks reversal of the administrative decision or, alternatively, a remand for the Administration to consider "new" evidence (Plaintiff's Request, pp. 2-3, 8). Plaintiff's "new" evidence is contained within Exhibit A to Plaintiff's request and the attachments filed with Plaintiff's supplement. Exhibit A consists of: (a) Riverside County Regional Medical Center emergency records from December 13, 1999, and February 29, 2000, for treatment of a left eye injury; and (b) Institutional Consultation Forms for ophthalmology consults from February 29, 2000, and March 17, 2000. Attachments filed with Plaintiff's supplement include, inter alia, 2005 records from Dr. Charles Boyer, Plaintiff's chiropractor. Plaintiff previously had listed Dr. Boyer as a medical provider who may have records of treatment from 2005 through December 2006 (A.R. 157). Plaintiff claims that the Administration did not seek these records from Dr. Boyer, and that Plaintiff could obtain the records only after having received the Administrative Record, which contained Dr. Boyer's contact information. See Supplement, p. 3; but see A.R. 41 (Plaintiff's counsel stating at the administrative hearing that there was no non-record evidence of which counsel was aware that would be relevant to Plaintiff's case).
Visual acuity testing from February 29, 2000, showed left eye vision of 20/70 and right eye vision of 20/30, with no evidence of rupture and no reported change in visual acuity. Follow up visual acuity testing from March of 2000, showed left eye vision of 20/50 and right eye vision of 20/25. These records do not suggest that Plaintiff then had any blindness in either eye. See Plaintiff's Request, Exhibit A.
The records filed with Plaintiff's supplement relate to Plaintiff's worker's compensation claim arising from an injury on April 18, 2005, when a stack of tires fell on Plaintiff allegedly causing him headaches, neck pain, and right arm pain. See Supplement, p. 18. Plaintiff was returned to light duty work on April 19, 2005 (id., p. 61). Plaintiff retained counsel and began seeing Dr. Boyer, who placed Plaintiff on temporary total disability on May 18, 2005, and opined that Plaintiff should remain off work until April 10, 2006 (id., pp. 20-23, 25-26, 61). A nerve conduction study of Plaintiff's upper extremities from June 6, 2005, was abnormal (id., pp. 16-17). An MRI of Plaintiff's cervical spine from June 15, 2005, showed 1-2 millimeter disc bulges at C3-4, C4-5, C5-6, and C6-7 without evidence of canal stenosis or neural foraminal narrowing (id., pp. 5, 9). An MRI of Plaintiff's left shoulder from June 15, 2005, was unremarkable (id., pp. 36-37). On February 24, 2006, Plaintiff underwent a "Functional Capacity Evaluation/Return to Work Assessment" by a Vocational Return to Work Counselor (id., pp. 46-59). The counselor concluded that Plaintiff "is a reasonable candidate for eventual return to work in the current labor market" (id., p. 58). An upper and lower extremity EMG study from March 24, 2006, showed right C6 motor radiculopathy (id., pp. 38-41). On June 5, 2006, Dr. Shuba Jain prepared a Permanent and Stationary Report for Plaintiff (id., pp. 27-35). Dr. Jain diagnosed cervical and lumbar radiculopathy (id., p. 33). Dr. Jain opined that Plaintiff "could still continue working with restrictions of no lifting, bending, squatting, or kneeling, " yet found Plaintiff "permanent and stationary" as of May 9, 2006 (id., pp. 31, 33). Dr. Jian opined that Plaintiff would be precluded from "very heavy lifting" (Id., p. 34). Dr. Jian concluded that if Plaintiff's employer could not provide work within the restrictions noted, Plaintiff would qualify for vocational rehabilitation (id., p. 35).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). "The claimant carries the burden of proving a disability. Failure to prove disability justifies a denial of benefits." Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (citations omitted).
the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.
Where, as here, the Appeals Council considered additional evidence but denied review, the additional evidence becomes part of the record for purposes of the Court's analysis. See Brewes v. Commissioner, 682 F.3d at 1163 ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence"; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1232 (2011) (courts may consider evidence presented for the first time to the Appeals Council "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole"); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).
The Court may not consider new evidence unpresented to the ALJ or to the Appeals Council, except when analyzing whether to remand the case under "sentence six" of 42 U.S.C. section 405(g). See Melkonyan v. Sullivan, 501 U.S. 89, 100-03 (1991). Sentence six provides that the Court may remand a case for the administrative consideration of additional evidence "only upon a showing that there is new evidence which is material and there is good cause for the failure to incorporate such evidence into the record in [the] prior [administrative] proceeding." 42 U.S.C. § 405(g).
DISCUSSION
After consideration of the record as a whole, the Magistrate Judge recommends that Plaintiff's request for summary judgment or remand be denied and the Administration's decision be affirmed. The Administration's findings are supported by substantial evidence and are free from material legal error. Remand is not appropriate.
The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
I. Plaintiff Has Failed to Make the Requisite Showing for a Sentence Six Remand.
"Sentence-six remands may be ordered in only two situations: where the Secretary requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency." Shalala v. Schaefer, 509 U.S. 292, 297 n.2 (1993); see 42 U.S.C. § 405(g). In the latter circumstance, the claimant bears the burden of demonstrating the materiality of the evidence and good cause for not having presented the evidence during the administrative proceeding. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).
New evidence is "material" within the meaning of section 405(g) if the evidence "bears directly and substantially on the matter in dispute, " and "there is a reasonable possibility that the new evidence would have changed the outcome of the [administrative] determination." Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (citations and quotations omitted). "A claimant does not meet the good cause requirement by merely obtaining a more favorable report once his or her claim has been denied." Mayes v. Massanari, 276 F.3d at 463. However, "[i]f new information surfaces after the [Administration's] final decision and the claimant could not have obtained that evidence at the time of the administrative proceeding, the good cause requirement is satisfied." Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (citing Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380 (9th Cir. 1984)).
Plaintiff has failed to satisfy the materiality requirement with respect to any of his "new" evidence. Plaintiff's "new" evidence is remote. All of the "new" evidence substantially predates the relevant time period. "Medical opinions that predate the alleged onset of disability are of limited relevance." Carmickle v. Commissioner, 533 F.3d at 1165. Plaintiff has failed to demonstrate any reasonable possibility that any of the "new" evidence would have changed the outcome of the administrative decision. As Plaintiff concedes, the Administration reviewed at least some of Plaintiff's "new" evidence when the Administration considered and denied his prior applications for benefits. See Plaintiff's Request, pp. 3, 6. Moreover, Plaintiff admits that he actually did work at a full-time job years after even the most recent of the records included within the "new" evidence.
Plaintiff alleges he has had left eye blindness since December 13, 1999, and is now nearly blind in his right eye (Plaintiff's Request, p. 7). The "new" evidence compellingly refutes Plaintiff's allegation of left eye blindness. On testing following his injury, Plaintiff reportedly had visual acuity of 20/70 and 20/50 in his left eye. See Plaintiff's Request, Exhibit A. Plaintiff's "new" records do not suggest the existence of any significant work-related left eye deficit during the relevant time period.
At the December 6, 2012 hearing before the ALJ, Plaintiff denied having any problem with his left eye (A.R. 51).
Plaintiff also has not demonstrated "good cause" for having failed to present the "new" evidence during the administrative proceedings. The duty to develop the record is a shared duty. See 20 C.F.R. §§ 404.1512, 416.912 (claimant must provide evidence of disability; the Administration will develop a claimant's medical history for "at least the 12 months preceding the month in which [the claimant] file[s his] application unless there is a reason to believe that development of an earlier period is necessary"). Here, Plaintiff was represented by counsel during the administrative proceedings, and counsel indicated there were no additional relevant medical records of which he was aware (A.R. 41). Plaintiff's Disability Report listed at least one of the doctors (Dr. Boyer) whose records Plaintiff failed to present during the administrative proceedings (A.R. 153-60). Through his counsel or otherwise, Plaintiff could have presented these records during those proceedings (if records so remote in time had been thought to have had any importance). Particularly given Plaintiff's representation by counsel during the administrative proceedings, Plaintiff's alleged inability to recall how to contact his own treating physicians cannot establish "good cause." See Campbell v. Shalala, 988 F.2d 741, 745 n.2 (7th Cir. 1993) (denying request for sentence six remand where the claimant "could have and should have obtained the letters [including medical opinions] while the case was still subject to administrative review"); Ingham v. Astrue, 2010 WL 1875651, at *5 (C.D. Cal. May 10, 2010) (finding no good cause for failure to introduce evidence which predated ALJ's decision, where plaintiff alleged that he could not remember the name of the facility where the medical testing was performed).
Plaintiff faults the Administration for failing to seek the remote records now presented. The Administrative Record included all of the medical records relevant to the applicable time period. The Administration did not materially fail to develop the record fully and fairly. See Chaudhry v. Astrue, 688 F.3d 661, 669 (9th Cir. 2012) (ALJ's duty to be "especially diligent" in developing the record when the claimant is unrepresented or has only a lay representative does not apply when the claimant is represented by counsel).
II. Substantial Evidence Supports the Administrative Decision.
As indicated above, the ALJ determined that Plaintiff retains the capacity to perform his past relevant work and therefore is not disabled (A.R. 20-25). The Administrative Record contains relevant non-medical and medical evidence that "a reasonable mind might accept as adequate to support" this conclusion.
The record contains several consultative evaluations finding little or no functional limitations. Dr. Banafshe P. Ardebili prepared a Complete Psychological Evaluation of Plaintiff dated January 6, 2011, in which Dr. Ardebili found that Plaintiff has no functional limitations (A.R. 200-05). Dr. Thaworn Rathana-Nakintara prepared a Complete Psychiatric Evaluation of Plaintiff dated March 7, 2012, also finding no functional limitations (A.R. 218-22). Dr. Carl E. Millner prepared a Complete Internal Medicine Evaluation dated January 12, 2011, finding no exertional limitations and only precluding Plaintiff from operating heavy or moving machinery (A.R. 208-12). Dr. Millner noted a left eye visual deficit, but deferred any vision limitations to the appropriate specialist (A.R. 211-12). Dr. Ulin Sargeant prepared an Internal Medicine Consultation for Plaintiff dated March 13, 2012, finding no exertional limitations, but opining that Plaintiff should be restricted from operating motor vehicles due to perceived vision problems (A.R. 225-30). Dr. Sargeant reported that Plaintiff has right eye deficits, but no left eye deficits (A.R. 227, 230).
The ALJ properly relied on the consultative examiners' opinions that Plaintiff would have no mental or physical limitations other than those related to his right eye. See A.R. 22-24; see also Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consultative examiner's opinion based on independent examination of the claimant constitutes substantial evidence).
The ALJ rejected any preclusion from driving, given Plaintiff's admission that he retains the ability to drive (A.R. 23; see also A.R. 51 (Plaintiff testifying that he can drive); A.R. 155 (Plaintiff reporting that he worked as a delivery driver from August of 2006 through at least April of 2009); A.R. 200 (Plaintiff drove himself to consultative evaluation); A.R. 202 (Plaintiff reported that he usually borrows a friend's car to drive himself for appointments, errands, and activities)). An ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of an examining physician. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Where the opinion of an examining physician is contradicted by another physician, the opinion can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record. Id. A material inconsistency between a treating or examining physician's opinion and a claimant's admitted level of daily activities can furnish a specific, legitimate reason for rejecting the treating or examining physician's opinion. See, e.g., Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Thus, the ALJ stated a sufficient reason for rejecting Dr. Sargeant's suggested preclusion from driving. However, assuming, arguendo, that the ALJ's reasoning for rejecting Dr. Sargeant's suggested preclusion was insufficient, any error was harmless. Only Plaintiff's past relevant work as an outside deliverer required driving. See A.R. 58-59 (vocational expert testimony). Plaintiff can perform all of his other past relevant jobs without driving.
The vocational expert testified that a person with the residual functional capacity the ALJ found to exist could perform all of Plaintiff's past relevant work (A.R. 57-59). The vocational expert's testimony furnishes substantial evidence there exist significant numbers of jobs Plaintiff can perform. See Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); see also Barker v. Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986); see generally Johnson v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir. 1995) (ALJ properly may rely on vocational expert to identify jobs claimant can perform); 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 404.1520, 416.920.
To the extent the record contains conflicting evidence, it was the prerogative of the ALJ to resolve the conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Where, as here, the evidence "is susceptible to more than one rational interpretation, " the Court must uphold the administrative decision. Andrews v. Shalala, 53 F.3d at 1039-40; accord Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); see also Morgan v. Commissioner, 169 F.3d 595, 601 (9th Cir. 1999) (where medical reports are inconclusive, the resolution of conflicts in the evidence is within the province of the Commissioner).
Plaintiff argues that the ALJ erred by not accepting the opinions of Plaintiff's treating source. See Plaintiff's Request, pp. 1, 7-8. Plaintiff's nurse practitioner completed a "Physical Residual Functional Capacity Questionnaire, " which was countersigned by a physician (A.R. 278-81). Among other things, the Questionnaire opined that Plaintiff would miss four days of work per month, would be capable of only low stress work, could not stand more than five minutes at a time, could stand and walk only two hours total in an eight-hour day, could require two to three unscheduled breaks every two hours, and could rarely lift up to 10 pounds (id.). The ALJ rejected these contradicted opinions as inconsistent with the nurse's treatment notes, which revealed no objective evidence of any significant impairment other than Plaintiff's right eye problem (A.R. 23 (citing A.R. 283-98 (treatment records)). An ALJ properly may discount a treating source's opinions that are in conflict with treatment records or are unsupported by objective clinical findings. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (conflict between treating physician's assessment and clinical notes justifies rejection of assessment); Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) ("an ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole... or by objective medical findings"); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (treating physician's opinion properly rejected where physician's treatment notes "provide no basis for the functional restrictions he opined should be imposed on [the claimant]"); see also Rollins v. Massanari, 261 F.3d at 856 (ALJ properly may reject treating physician's opinions that "were so extreme as to be implausible and were not supported by any findings made by any doctor..."); 20 C.F.R. §§ 404.1527(d), 416.927(d) (factors to consider in weighing treating source opinion include the supportability of the opinion by medical signs and laboratory findings as well as the opinion's consistency with the record as a whole). The ALJ properly rejected the extreme opinions stated in the Questionnaire. See id.
RECOMMENDATION
For all of the foregoing reasons, it is recommended that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) denying Plaintiff's request for summary judgment or remand; (3) granting Defendant's request for affirmance; and (4) directing that Judgment be entered in favor of Defendant.
The denial of the 2006 application, which became final long before the filing of the present application, was not reopened in the present case and is res judicata with respect to the finding of Plaintiff's non-disability as of early 2006. See Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988); see generally A.R. 18-25 (ALJ's decision omitting any discussion of the prior applications, and noting that the decision is based on the present applications for benefits); 20 C.F.R. §§ 404.987, 404.988, 416.1487, 416.1488 (discussing conditions under which a previous decision may be reopened, none of which are argued or appear to apply to Plaintiff's 2006 application). The ALJ also did not expressly reopen the 2010 decision, but may have reopened that decision de facto by considering the issue of Plaintiff's disability during the previously adjudicated period (i.e., from April 7, 2009 forward). See Gregory v. Bowen, 844 F.2d at 666; Lester v. Chater, 81 F.3d 821, 827 n.3 (9th Cir. 1995). Where a de facto reopening occurs, the Administrative decision is subject to judicial review. Lester v. Chater, 81 F.3d at 827 n.3 (citations omitted).
Plaintiff returned to full-time work in August of 2006 as a pizza delivery driver, and worked in that capacity until April 7, 2009 (A.R. 46-47, 155; but see A.R. 49 (Plaintiff testifying that he did not stop working until April 7, 2010)). Plaintiff reportedly was fired from the delivery job after raising a sexual harassment claim (A.R. 47). Plaintiff thereafter collected unemployment for two years during which time he reportedly looked for work (A.R. 48).
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).