Shepherd v. Commissioner Social Security Administration

Filing 24

OPINION and ORDER: Adopting Findings and Recommendation 19 . Signed on 3/9/10 by Judge Michael W. Mosman. (sm)

FILEIrl0tm 0915ffi)Soc~
IN THE UNITED STATES DISTRICT COURT
F O R THE DISTRICT OF O R E G O N PORTLAND D N I S I O N

KIMBERLY SHEPHERD,
N . C V 09-6022-PK
Plaintiff, OP . ON AND O R D E R

v.
MICHAEL J. ASTRUE,

C o m m i s s i o n e r o f Social S e c u r i t y ,
Defendant.

MOSMAN,J., OnJanuary25,2010,MagistrateJudgePapakissuedFindingsandReeo endation("F&R")

(#1~) ~ ~ above-captioned case ~ending that I AFFIRM 1he Co1Ssi~n~s decision.
PlamtIff Kimberly Shepherd filed objections to the F & R (#22), a n d the Co
r e s p o n s e t o M s . S h e p h e r d ' s obJections (#23). DISCUSSION SSloner filed a

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S t a n d a r d o f Review
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T h e magistrate j u d g e makes only recommendations t o the court,. to whicn any p a r t y may file . . . wntten 0 b" ecti.ons. T he court IS n o t bound by t he recommendt'ions o.f" t.he m~strate J Ud'ge, b u t ~ . · a . retains responsibility for making the final determination. The court is genera1l1 required to make a de n o v o determination o f those portions o f the report o r specified findings o r commendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the co PAGE 1 - OPINION AND O R D E R is n o t required t o

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reView, under a de novo or any other standard, the factual or legal conclusions o f the magistrate judge as to those portions o f t h e F&R to which no objections are addressed. See Thomas v. Am, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia. 328 F.3d 1114, 1121 (9th Cir. 2003). While the level o f scrutiny under which I am required to review the F&R depends on whether or not objections have been filed, in either case, I aiD. free to accept, reject, or modify any o f the magistrate judge's F&R. 28 U.S.C. § 636(b)(I)(C).

U.

Failure to Consider New Evidence
Judge Papak properly concluded that the Appeals Council did not err by failing to consider

new evidence submitted after the ALJ rendered his decision. (See F&R (#19) 5-8.) Ms. Shepherd asserts that she could not have submitted new evidence from a doctor's evaluation because "no appointment had yet been scheduled." (Objections (#22) 2.) Ms. Shepherd's argument is unpersuasive in light o f the ALI's many efforts to accommodate Ms. Shepherd's delays, which included postponing the ALJ hearing twice and keeping the record open after the August 7, 2007 hearing to allow Ms. Shepherd to attend more medical appointments and submit additional documentation. Tr. 38, 358, 362. 367-68, 370, 407-08. Ms. Shepherd did not schedule her first appointment with Dr. Cheung until July 7, 2008, exactly eleven months after the ALJ hearing. and she did not schedule her consultation at the Oregot:1 Health Sciences University ("OHSU tI ) clinic until May 19, 2009, over nine months after the A U hearing. It was unreasonable to expect the ALJ to delay his decision for that amount o ftime. As i t was, the A U waited almost tluee months to issue a decision, without receiving any documentation from Ms. Shepherd. I agree with JudgePapak that "[t]he record clearly demonstrates that [Ms.] Shepherd was given every opportunity to submit additional medic.al records, yet failed to do so" and that Ms. Shepherd has not shown good cause for
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that failure. (F&R (#19) 8.)
Ms. Shepherd raises additional arguments regarding h e r failure to submit documents from a v i s i t t o O H S U - t h e v i s i t f o r w h i c h t h e A u g u s t 7 , 2 0 0 7 h e a r i n g w a s o s t e n s i b l y l e f t open. A t t h e hearing, the A U stated several times that i t was important for Ms. Shepherd t o keep h i m informed o f t h e date o f t h a t appointment. Tr. 368, 3 7 0 , 4 0 8 . Although Ms. Shepherd argues t h a t she "did a d v i s e the E u g e n e O D A R o f f i c e t h a t h e r a p p o i n t m e n t a t O H S U h a d b e e n p o s t p o n e d " ( O b j e c t i o n s (#22) 2), this vague factual assertion i s unsupporte<i b y affidavit o r any other evidence t h a t could give rise t o good cause. Aside from the failure to s h o w good cause for h e r delay, the results b f t h e O H S U evaluation are not material i n that t h e y are n o t reasonably likely t o change the ALJ's opinion. See Mayes v; ,
.

Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (holding that r e m a n d for c o l i d e r a t i o n o f n e w
I evidence i s appropriate w h e r e e v i d e n c e i s material, m e a n i n g i t h a s a r e a s o n a b l e p o s s i b i l i t y o f
c h a n g i n g t h e o u t c o m e , a n d t h e c l a i m a n t h a s s h o w n g o o d c a u s e f o r failing t o pr~duce t h e e v i d e n c e

~lier). As Judge P~pak no~ the A U resolved Step ~WOin Ms. Shepherd's t'avor, and any n e w
eVIdence would b e n n m a t e n a l to the Step T w o analysIs. ( F & R ( # 1 9 ) 7.) To I e e X t e n t t h e A U incorporated Ms. Shepherd's Hepatitis C di~osis into his Residual Functio~ Capacity ("RFC") ,
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assessment, h e focused on the symptoms o f that condition rather than the existence b f t h e c o n d i t i o n i t s e l f . A n d t h e O H S U t e s t r e s u l t s are e n t i r e l y c o n s i s t e n t w i t h t h e e v i d e n c e t h e A U r e l i e d u p o n . T h e O H S U records state that Ms. Shepherd had a "[c]ompletely normal l i v e r test'f and t h a t h e r l i v e r condition i s "stable, \I Tr. 22, 24, which is n o different from evidence the A U coq.sidered, including a t r e a t i n g p h y s i c i a n ' s c l i n i c a l f m d i n g s t h a t Ms. S h e p h e r d ' s " l i v e r e n z y m e s w e r e q u i t e stable," s h e " e x h i b i t e d no a d v e r s e s t r u c t u r a l l i v e r c h a n g e s o r a b n o r m a l l i v e t f u n c t i o n : ' P A G E 3 - OPINION A N D O R D E R d t h e "abdominal

ultrasound o f [her] liver was normal." Tr. 38. For the. foregoing reasons, I agree that the Appeals Council did not err by refusing to consider new evidence, and remand for reconsideration o f this evidence is not warranted.

m.

F a i l u r e to C r e d i t T r e a t i n e a n d E x a m i n i n e Physicians

Ms. Shepherd argues that the A U erred by relying "upon anon-ex~g physician to challenge the fmdings o f both an examining physician, Dr. Nolan, and Ms. Shepherd's treating phySican," Dr. Somera. (Objections (#22) 3.) Although the opinion o f a n o n e x ~ gphysician is ·not sufficient, in and ofitself, tojustify rejecting the opinion o f an eXamining of[ treating physician, an ALJmay rely on a nonexamining physicians' opinion and reject the testimfny o f a treating or
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examining physician i f the ALJ gives "specific, legitimate reasons" for doing sd, and those reasons are supported by substantial evidence in the record. See Lester 'V. Chater, 81 F.3dl821, 831 (9th Cir. 1995). I acknowledge that reasons and medical evidence "that may be suffilient to justify the rejection o f an examiningphysican's opinion would not necessarily be sufficient to reject a treating physician's opinion." I d at 831 n.8. Although the A U did credit the opinion o fDr. Eden, anonexamining, p t s i e i a n , Dr. Eden's opinion ~not. the only evidence 1)Iat supported the~s ~iSiOIL Rather, the

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considered Dr.

E~e~'S oPtnl~n ill the cont~~ o f the recor~ as a w~o~e, illcluding laboratory r e j S ' x-rays, ~d the

clinical findings o f examJDmg and treating phySICIans. Tr. 37-38. Importantly, the ALJ did not discredit either Dr. Nolan's or Dr. Somera's opinion in its entirety. For exattlPle,I Dr· Nolan, opined that Ms. Shepherd could sit for at least six hours in an eight-hour day, could stand for at least two hours in an eight-hour day, and could lift up to thirty pounds, which is consistent With the A U ' s RFC assessment. Tr. 3 4 , 3 7 , 2 3 5 . When the ALJ discredited portions o f Dr. Nolan's or Dr. Somera's PAGE 4 - OPINION AND ORDER

opinion, the ALJ based his decision on several inconsistencies between the physicians' opinions and their clinical findings, as well as inconsistencies between the physicians' opinions and Ms. Shepherd's dailyaetivities. Tr. 37-39. Both t h e A U ' s RFC assessment and his reasons for rejecting portions o f Dr~ Nolan's and Dr. Somera's opinions are supported by substantial evidence i n the record.

IV.

Failure to Meet Burden a t Step Five
Ms. Shepherd argues that the A L l erred by failing to pose a hypothet~al question to the

Vocational Expert that contained the limitations identified by Dr. Nolan and Dr. Somera. I agree with Judge Papak's conclusion that the ALJ properly "elicited testimony from the [Vocational Expert] based on the RFC assessment and was not required to incorporate additional limitations he found unsupported by the record. It (F&R (# 19) 16 (citing Osenbrock v. Apfel, 240F.2d ~ 157, 1163 -65 (9th Cir.2001»).)

v.

Conclusion

For the foregoing reasons, I agree with Judge Papak's recoIiUilendationJ and I ADOPT the I F&R (#19) as my own opinion. The Commissioner's decision is AFFIRMED. I
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IT IS SO ORDERED.
~ DATED this~'ttly o f March, 2010.

MICHAEL~.
United States District Court

,MJW

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