Pryor v. Commissioner of Social Security

Filing 23

ORDER signed by Magistrate Judge Craig M. Kellison on 3/15/2018 DENYING 19 Motion for Remand and 20 Motion to Dismiss. The court concludes that a remand is not warranted. CASE CLOSED. (Fabillaran, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIK GEORGE PRYOR,

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No. 2:16-CV-2211-CMK

Plaintiff,
vs.

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.
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Plaintiff, who is proceeding with retained counsel, brings this action under

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42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security.

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Pursuant to the written consent of all parties, this case is before the undersigned as the presiding

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judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending

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before the court are plaintiff’s motion to remand (Doc. 19)1 and defendant’s motion to dismiss

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and opposition (Doc. 20).

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Pursuant to the court’s July 13, 2017, order, plaintiff’s motion was due by August
14, 2017. Plaintiff’s motion was filed on September 4, 2017. Defendant’s motion to dismiss
based on plaintiff’s untimely filing is denied because defendant has not shown prejudice from the
delay.
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I. PROCEDURAL HISTORY
Plaintiff applied for social security benefits on October 16, 2012. In the

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application, plaintiff claims that disability began on April 19, 2012. Plaintiff’s claim was

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initially denied. Following denial of reconsideration, plaintiff requested an administrative

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hearing, which was held on January 8, 2015, before Administrative Law Judge (“ALJ”) Serena S.

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Hong. In a March 30, 2015, decision, the ALJ concluded that plaintiff is not disabled based on

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the following relevant findings:

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1.

The claimant has the following severe impairment(s): degenerative disc
disease, and obesity;

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The claimant does not have an impairment or combination of impairments
that meets or medically equals an impairment listed in the regulations;

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The claimant has the following residual functional capacity: the claimant
can perform light work; he requires a cane for long distance and uneven
terrain; he can frequently balance and occasionally perform other postural
activities, such as stooping, crouching, and crawling; he must change
positions every 15-20 minutes; and

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Considering the claimant’s age, education, work experience, residual
functional capacity, and vocational expert testimony, there are jobs that
exist in significant numbers in the national economy that the claimant can
perform.

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After the Appeals Council declined review on July 18, 2016, this appeal followed.
II. STANDARD OF REVIEW

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The court reviews the Commissioner’s final decision to determine whether it is:

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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

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more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521

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(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to

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support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

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including both the evidence that supports and detracts from the Commissioner’s conclusion, must

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be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones
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v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

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findings, or if there is conflicting evidence supporting a particular finding, the finding of the

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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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Therefore, where the evidence is susceptible to more than one rational interpretation, one of

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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

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Cir. 1988).

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III. DISCUSSION

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Plaintiff argues that this matter should be remanded to consider new evidence

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which resulted in a finding of disability on a subsequent claim.2 According to plaintiff, she filed

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a subsequent claim on September 20, 2016, and was found disabled. Plaintiff states that this new

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determination was based, in part, on results of a March 2, 2017, MRI, and that the matter should

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be remanded for reconsideration of the prior denial at issue in this case.

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A case may be remanded to the agency for the consideration of new evidence if

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the evidence is material and good cause exists for the absence of the evidence from the prior

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record. See Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 511-12 (9th Cir.

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1987) (citing 42 U.S.C. § 405(g)). In order for new evidence to be “material,” the court must

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find that, had the agency considered this evidence, the decision might have been different. See

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Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990). The court need only find a reasonable

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Alternatively, plaintiff asks that the court set a briefing schedule on cross-motions
for summary judgment on the merits of the agency’s final decision. This request is denied
because the court’s scheduling order does not contemplate multiple rounds of briefing. Further,
plaintiff has not shown good cause for failing to include any arguments relating to the merits of
the agency’s final decision in his September 4, 2017, brief (which the court observes was filed
late, also without any showing of good cause).
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possibility that the new evidence would have changed the outcome of the case. See Booz v.

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Secretary of Health and Human Services, 734 F.2d 1378, 1380-81 (9th Cir. 1984). The new

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evidence, however, must be probative of the claimant’s condition as it existed at or before the

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time of the disability hearing. See Sanchez 812 F.2d at 511 (citing 42 U.S.C. § 416(i)(2)(G)). In

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Sanchez, the court concluded that the new evidence in question was not material because it

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indicated “at most, mental deterioration after the hearing, which would be material to a new

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application, but not probative of his condition at the hearing.” Id. at 512 (citing Ward v.

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Schweiker, 686 F.2d 762, 765-66 (9th Cir. 1982)).

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The March 2, 2017, MRI results do not warrant a remand based on new evidence

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because the evidence is not probative of plaintiff’s condition as it existed at or before the time of

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the January 8, 2015, hearing. As in Sanchez, this evidence is, at best, material to a new disability

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application, as indeed it appears to have been given that plaintiff was found disabled on a

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subsequent application for benefits.

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IV. CONCLUSION
Based on the foregoing, the court concludes that a remand is not warranted.
Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for remand (Doc. 19) is denied;

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Defendant’s motion to dismiss (Doc. 20) is denied; and

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The Clerk of the Court is directed to enter judgment in favor of defendant

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and close this file.

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DATED: March 15, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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