Snoozy v Commissioner Social Security Admin.
Filing
16
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)
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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