Opinion
CV-23-01366-PHX-SMB (MTM)
04-29-2024
Justin C. Hendrix, Plaintiff, v. Commissioner of the Social Security Administration, Defendant.
HONORABLE MICHAEL T. MORRISSEY UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE:
Plaintiff Justin C. Hendrix (“Plaintiff”), proceeding pro se, seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (“the Commissioner” or “Defendant”), denying his claims for Disability Insurance Benefits and Supplemental Security Income under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. Because Plaintiff has failed to show the Administrative Law Judge (“ALJ”) erred in determining Plaintiff has not been under a disability, as defined by the Social Security Act, the Court will recommend that the Commissioner's decision be affirmed.
BACKGROUND
Plaintiff was born on April 21, 1986, and was 32 years old at the time of the hearing. He has a high school education, and past relevant work as a Cashier Checker (DOT# 211.462-014); a Lifeguard (DOT# 376.667-014); and a Nurse Assistant (DOT# 355.674014). (Administrative Record (“AR”) at 29, 336, 341.)
Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act on June 12, 2019, alleging disability beginning on March 31, 2019. (AR at 16, 336-340, 341-347.) The Commissioner denied Plaintiff's claims at the initial and reconsideration phases of administrative review. (AR at 16, 162-169, 172-189.) Plaintiff sought further review by an ALJ, who conducted a hearing on July 21, 2022. (AR at 39-74.) In a January 27, 2023 decision, the ALJ found Plaintiff not disabled within the meaning of the Social Security Act. (AR at 13-38.) The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (AR at 1-5.) Plaintiff then filed this action pursuant to 42 U.S.C. § 405(g).
DISCUSSION
I. Legal Standard
The district court reviews only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). Only issues that are argued specifically and distinctly in a party's opening brief are reviewed. Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). Moreover, “when claimants are represented by counsel, they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). Failure to do so will only be excused when necessary to avoid a manifest injustice. Id.
A court may set aside the Commissioner's disability determination only if it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance. Id. In determining whether substantial evidence supports a decision, the court must consider the record as a whole and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. Generally, when the evidence is susceptible to more than one rational interpretation, courts must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “Overall, the standard of review is ‘highly deferential.'” Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015).
Harmless error principles apply in the Social Security Act context. Molina, 674 F.3d at 1115. An error is harmless if there remains substantial evidence supporting the ALJ's decision, and the error does not affect the ultimate determination. Id. The claimant usually bears the burden of showing that an error is harmful. Id. at 1111.
II. Five-Step Sequential Evaluation
To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled, and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a severe medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled, and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant's residual functional capacity, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since March 31, 2019 - the alleged onset date. (AR at 19.) At step two, the ALJ found that Plaintiff had the following severe impairments: cerebrovascular accident/cerebral infarction due to thrombosis of unspecified cerebral artery. (AR at 1922.) At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR at 22.)
At step four, the ALJ found that Plaintiff retained the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). The ALJ found that Plaintiff can lift and/or carry 20 pounds occasionally and ten pounds frequently; can stand and/or walk for four hours in an eight-hour workday; and can sit for six hours in an eight-hour workday. The ALJ additionally stated that Plaintiff can never climb ladders, ropes or scaffolds, and can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. The ALJ found that Plaintiff must avoid even moderate exposure to hazards, such as dangerous machinery and unprotected heights. (AR at 22-29.) The ALJ further determined that Plaintiff is unable to perform any past relevant work. (AR at 29.)
At step five, however, the ALJ found that considering Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform. (AR at 30-31.) Specifically, the ALJ found that Plaintiff would be able to perform the requirements of representative occupations, such as: Charge Account Clerk (DOT# 205.367-014); Call Out Operator (DOT# 237.367-014); and Addresser (DOT# 209.587-010). (AR at 30-31.)
Accordingly, the ALJ concluded that Plaintiff has not been under a disability, as defined in the Social Security Act, from March 31, 2019, through the date of his decision. (AR at 31.)
III. Analysis
Plaintiff's Opening Brief consists of one paragraph, and he does not raise any specific arguments demonstrating error by the ALJ or make any claim that the ALJ's decision was not supported by substantial evidence. (Doc. 15.) Rather, Plaintiff argues “[p]ast information from 9/17/2023 to present date show a medical problem that has impacted the way Justin Hendrix is forced to live his life.” Plaintiff states “[n]ew medical files will show his PCP and neurology specialists current updated opinion as well as a new RFC examination.” He states that he “is currently attending physical therapy as this was referred by the neurology specialist at ABC Neurology,” and that “new results from physical therapy is scheduled for 9/23/2023.” Lastly, Plaintiff states he was forced to stop filing unemployment because he was deemed not able to return to the workforce. Plaintiff contends that he never received unemployment payments, “but was approved for unemployment and the pandemic coverage.” (Doc. 15.)
After Defendant's Answering Brief was filed (Doc. 19), Plaintiff filed two supplements and a reply brief. (Docs. 20-22.) Plaintiff's additional filings consist of numerous exhibits appearing to be new medical evidence.
A. Supplemental Exhibits
On review of the final decision of the Commissioner, the “court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Thus, the Court cannot affirm, modify, or reverse the Commissioner's final decision based upon evidence not included in the transcript of record. However, the court “may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding .” 42 U.S.C. § 405(g); see also Orteza v. Shalala, 50 F.3d 748, 751 (9th Cir. 1994). “Good cause can be shown where no party will be prejudiced by the acceptance of additional evidence .” Johnson v. Schweiker, 656 F.2d 424, 426 (9th Cir. 1981) (internal quotations omitted) (citation omitted); see also Burton v. Heckler, 724 F.2d 1415, 1418 (9th Cir. 1984) (holding that the “fact that the evidence did not exist at the time of the ALJ's decision establishes good cause for [the plaintiff's] failure to introduce it before the ALJ”).
Here, Plaintiff appears to have submitted new medical records as a comparison to demonstrate how his condition has gotten worse over time. The new medical information is dated after the ALJ's decision on February 1, 2023. While there may be good cause for Plaintiff's failure to incorporate this evidence into the Administrative Record as the evidence did not exist at the time of the ALJ's decision, see Burton, 724 F.2d at 1418, Plaintiff has not shown how any of these exhibits demonstrate that Plaintiff was disabled beginning on or before February 1, 2023. Accordingly, this evidence is not material as it does not relate to the period at issue. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 511 (9th Cir. 1987) (New evidence is material to and probative of his condition if it existed at the relevant time -- “at or before the disability hearing”). If Plaintiff wishes to rely on post-decision evidence, he may file a new application for benefits based on that evidence. See Sanchez, 812 F.2d at 512.
B. Plaintiff's Appeal
As the Court has noted, Plaintiff failed to raise any specific arguments alleging error by the ALJ or make any claim that the ALJ's decision was not supported by substantial evidence. While the Court recognizes that “a document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotations and citations omitted), the Court will not address issues that are not argued with any specificity. Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). A general allegation that the Commissioner committed legal error, or that the Commissioner's determination is not supported by substantial evidence, is insufficient to raise that issue for review. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (internal citation omitted) (“We review only issues which are argued specifically and distinctly in a party's opening brief. We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim ....”). Notably, Plaintiff was warned of these requirements in the Court's Scheduling Order issued on August 8, 2023 - prior to the filing of his Opening Brief. (Doc. 14.) Accordingly, the Court will recommend that the Commissioner's decision be affirmed.
CONCLUSION
For the reasons stated above, the Court will recommend that the Commissioner's decision be affirmed. Plaintiff has failed to show the ALJ erred in concluding Plaintiff has not been under a disability, as defined by the Social Security Act.
IT IS THEREFORE RECOMMENDED that the final decision of the Commissioner of Social Security be AFFIRMED and that the Clerk of Court be directed to enter judgment accordingly.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rules of Appellate Procedure, Fed. R. App. P. 4(a)(1), should not be filed until entry of the District Court's judgment. Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure, objections to the Report and Recommendation may not exceed ten (10) pages. If objections are not timely filed, the party's right to de novo review by the District Judge is waived. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).