Bayne v. Commissioner Social Security Administration

Filing 20

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. IT IS SO ORDERED. See attached order for details. Signed on 4/30/19 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MONICA MARIE B. , 1
Plaintiff,

3:18-cv-00937-BR
OPINION AND ORDER

v.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
GEORGE J. WALL
Law Office of George J. Wall
825 N.E. 20th Ave, Suite 330
Portland, OR 97232
[phone]

Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]

In the interest of privacy this Court uses only the first
name and the initial of the last name of the nongovernmental
party in this case. Where applicable, this Court uses the same
designation for the nongovernmental party's immediate family
member.
1

1 - OPINION AND ORDER

MICHAEL W. PILE
Acting Regional Chief Counsel
JOSEPH J. LANGKAMER
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]

Attorneys for Defendant
BROWN, Senior Judge.

Plaintiff Monica Marie B. seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (SSA) in which the Commissioner denied
Plaintiff's applications for Disability Insurance Benefits (DIB)
under Title II of the Social Security Act and Supplemental
Security Income (SSI) under Title XVI of the Social Security
Act.

This Court has jurisdiction to review the Commissioner's

final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

On April 10, 2014, Plaintiff protectively filed her

2 - OPINION AND ORDER

application for DIB and SSI benefits.

Tr. 153, 310. 2

alleges a disability onset date of August 31, 2013.
310.

Plaintiff
Tr. 153,

Plaintiff's application was denied initially and on

reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on July 27, 2016.

Tr. 153, 95-142.

Plaintiff and a

vocational expert (VE) testified at the hearing.
hearing was held on March 6, 2017.

A supplemental

Tr. 153, 175-90.

and another VE testified at this hearing.

Plaintiff

Plaintiff was

represented by an attorney at both hearings.
On May 31, 2017, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 153-65.

Appeals Council.

Plaintiff requested review by the

On April 15, 2018, the Appeals Council denied

Plaintiff's request to review the ALJ's decision, and the ALJ's
decision became the final decision of the Commissioner.
4.

Tr. 1-

See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On May 30, 2018, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner's decision.

Citations to the official transcript of record filed by
the Commissioner on November 2, 2018, are referred to as "Tr."
2

3 - OPINION AND ORDER

BACKGROUND

Plaintiff was born on October 12, 1979.

Tr. 163, 310.

Plaintiff was 33 years old on her alleged disability onset date.
Tr. 163.

Plaintiff has at least a high-school education.

Tr. 163.

Plaintiff has past relevant work experience as a

medical coder and "stores laborer."

Tr. 163.

Plaintiff alleges disability due to bulging discs at C5-C6,
tendonitis in both elbows and hands, bi-lateral carpal tunnel,
hypermobile joint syndrome, fibromyalgia, trigger-finger of the
middle finger of both hands, and Dupuytren's Syndrome.

Tr. 202-

03.
Except as noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ's summary of the
medical evidence.

See Tr. 159-162.

STANDARDS

The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110

To meet this burden, a claimant must

demonstrate her inability "to engage in any substantial gainful
activity by reason of any medically determinable physical or

4 - OPINION AND ORDER

mental impairment which.

. has lasted or can be expected to

last for a continuous period of not less than 12 months."
U.S.C. § 423(d) (1) (A).

42

The ALJ must develop the record when

there is ambiguous evidence or when the record is inadequate to

McLeod v. Astrue,

allow for proper evaluation of the evidence.

640 F.3d 881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari,
276 F.3d 453, 459-60

(9th Cir. 2001)).

The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).

42

See also Brewes v. Commr of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

"relevant evidence that a reasonable mind might accept as
adequate to support a conclusion."

Molina,

674 F.3d. at 1110-11

(quoting Valentine v. CommY Soc. Sec. Admin., 574 F.3d 685,
(9th Cir. 2009)).

It is more than a mere scintilla [of

evidence] but less than a preponderance.

Id.

(citing Valentine,

574 F.3d at 690).
The ALJ is responsible for evaluating a claimant's
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
(9th Cir. 2009).

690

Vasquez v. Astrue, 572 F.3d 586, 591

The court must weigh all of the evidence

5 - OPINION AND ORDER

whether it supports or detracts from the Commissioner's
decision.

Ryan v. CommT of Soc. Sec., 528 F.3d 1194, 1198 (9th

Cir. 2008).

Even when the evidence is susceptible to more than

one rational interpretation, the court must uphold the
Commissioner's findings if they are supported by inferences
reasonably drawn from the record.
1047, 1051 (9th Cir. 2012).

Ludwig v. Astrue, 681 F.3d

The court may not substitute its

judgment for that of the Commissioner.

Widmark v. Barnhart, 454

F.3d 1063, 1070 (9th Cir. 2006).

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation

At Step One the claimant is not disabled if the
Commissioner determines the claimant is engaged in substantial
gainful activity (SGA).
416.920(a) (4) (i).
F.3d 721, 724

20 C.F.R.

§§

404.1520(a) (4) (i),

See also Keyser v. CommT of Soc. Sec.,

648

(9th Cir. 2011).

At Step Two the claimant is not disabled if the
Commissioner determines the claimant does not have any medically
severe impairment or combination of impairments.
§§

20 C.F.R.

404.1509, 404.1520(a) (4) (ii), 416.920(a) (4) (ii).

Keyser,

648 F.3d at 724.

6 - OPINION AND ORDER

See also

At Step Three the claimant is disabled if the Commissioner
determines the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§

404 .1520 (a) (4) (iii), 416. 920 (a) (4) (iii).

648 F.3d at 724.

20 C.F.R.

See also Keyser,

The criteria for the listed impairments, known

as Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant's residual functional capacity (RFC).

The

claimant's RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§§

404.1520(e), 416.920(e).

( SSR)

96-8p.

See also Social Security Ruling

"A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule."
at *1.

20 C.F.R.

SSR 96-Bp,

In other words, the Social Security Act does not require

complete incapacity to be disabled.

Taylor v. Comm'r of Soc.

Sec. Admin., 659 F. 3d 1228, 1234-35 ( 9th Cir. 2011) (citing Fair
v. Bowenr 885 F.2d 597,

603 (9th Cir. 1989)).

At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform

7 - OPINION AND ORDER

work she has done in the past.
416.920(a) (4) (iv).

20 C.F.R.

See also Keyser,

§§

404.1520(a) (4) (iv),

648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a) (4) (v).

20 C.F.R.

§§

See also Keyser,

404.1520(a) (4) (v),
648 F.3d at 724-25.

Here

the burden shifts to the Commissioner to show a significant
number of jobs exist in the national economy that the claimant
can perform.

Lockwood v. Commr Soc. Sec. Admin., 616 F.3d 1068,

1071 (9th Cir. 2010).

The Commissioner may satisfy this burden

through the testimony of a VE or by reference to the MedicalVocational Guidelines (or the grids) set forth in the
regulations at 20 C.F.R. part 404, subpart P, appendix 2.

If

the Commissioner meets this burden, the claimant is not
disabled.

20 C.F.R.

§§

404.1520(g) (1), 416.920(g) (1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff engaged in substantial
gainful activity from September 2014 through December 2014 after
Plaintiff's alleged disability onset date of August 31, 2013.
Tr. 155-56.

The ALJ found, however, there have been continuous

12-month periods during which Plaintiff did not engage in

8 - OPINION AND ORDER

substantial gainful activity.

Tr. 156.

At Step Two the ALJ found Plaintiff has the severe
impairments of "chronic pain,

joint hypermobility syndrome,

thoracic outlet syndrome, a disorder of the bilateral wrists, a
disorder of the bilateral upper extremities, and a spine
disorder."

Tr. 156.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 157.

The ALJ found Plaintiff has the RFC to

perform light work with the following limitations:

can

frequently lift 10 pounds and can occasionally lift 20 pounds;
can occasionally push and pull with her upper extremities; can
frequently use foot controls bilaterally; can sit for "two hours
at one time up to seven hours" of an eight-hour workday; can
stand for one hour at one time up to six hours of an eight-hour
workday; can walk 30 minutes at one time up to six hours of an
eight-hour workday; can frequently engage in reaching
bilaterally; can occasionally engage in handling, fingering, and
feeling bilaterally; can frequently stoop, kneel, crouch, and
climb ramps and stairs; can occasionally crawl and climb
ladders, roper, and scaffolds; and should not be exposed to

9 - OPINION AND ORDER

vibrations.

Tr. 158.

At Step Four the ALJ concluded Plaintiff is unable to
perform her past relevant work.

Tr. 162.

At Step Five the ALJ found Plaintiff can perform other jobs
that exist in the national economy such as tanning-salon
attendant, elections clerk, and call-out operator.

Tr. 164.

Accordingly, the ALJ found Plaintiff is not disabled.

Tr. 164.

DISCUSSION

Plaintiff contends the Appeals Council erred when it failed
to remand the case to the ALJ for further proceedings to
consider medical records submitted for the first time to the
Appeals Council.
I.

The Court does not have jurisdiction to review the decision
of the Appeals Council.

Plaintiff contends the Appeals Council should have remanded
this matter to the ALJ for reconsideration in light of the
evidence she submitted to the Appeals Council that demonstrates
she has hyperthyroidism and allegedly supports Plaintiff's
reports of symptoms that the ALJ discounted.
The Commissioner, in turn, contends the court does not have
jurisdiction to review the decision of the Appeals Council.
Moreover, the Commissioner points out that Plaintiff did not

10 - OPINION AND ORDER

challenge any part of the ALJ's decision on appeal, the evidence
submitted to the Appeals Council did not undermine the ALJ's
decision, and the Appeals Council properly declined to remand
this matter to the ALJ for reconsideration.
A.

Standards

The district court does not have jurisdiction to
review a decision of the Appeals Council denying a request for
review of an ALJ's decision because the Appeals Council decision
is not a final agency action.

Taylor v. Comm'r of Soc.

Aclmin., 659 F.3d 1228, 1231 (9th Cir. 2011).

Sec.

When, however, a

claimant "submits evidence for the first time to the Appeals
Council, which considers that evidence in denying review of the
ALJ's decision, the new evidence is part of the administrative
record, which the district court must consider in determining
whether the Commissioner's decision is supported by substantial
evidence."

Brewes, 682 F.3d 1157, 1159-60, 1162-63 (9th Cir.

2012).
B.

Analysis

On June 5, 2017, Plaintiff requested review of the
ALJ's decision by the Appeals Council.

Tr. 308-09.

On

March 21, 2018, Plaintiff submitted to the Appeals Council
medical records from Oregon Health and Sciences University

11 - OPINION AND ORDER

(OHSU)

for November 6, 2017, to February 26, 2018, relating to

Plaintiff's treatment for hyperthyroidism.

Tr. 11-94.

As noted, on April 5, 2018, the Appeals Council denied
Plaintiff's request for review.

The Appeals Council indicated

the records from OHSU were submitted after the ALJ's decision,
did not relate to the disability period at issue, and did not
affect the ALJ's decision.

Tr. 2.

The Appeals Council made

these records part of the administrative record.
In Taylor v. Commissioner of Social Security
Administration the plaintiff proffered to the Appeals Council a

psychiatric evaluation and medical-source statement that had not
been submitted to the ALJ.

659 F.3d 1228, 1231 (9th Cir. 2011).

The new evidence post-dated the ALJ's decision.

Although the

medical-source statement was based on treatment that occurred
during the relevant disability period, the Appeals Council did
not consider the evidence.

Id.

The Ninth Circuit found the

Appeals Council should have considered the records because the
evaluations concerned the plaintiff's limitations during the
relevant period of disability.

Id. at 1233.

The Ninth Circuit

held:
Because [the doctor's] opinion concerned his
assessment of [the plaintiff's] mental health
since his alleged disability onset date in 1999,
it related to the period before [the plaintiff's]

12 - OPINION AND ORDER

disability insurance coverage expired in 2004,
and before the ALJ's decision in 2006.
Thus,
[the physician's] opinion should have been
considered.
Id.

Here, however, Sydney Rose, M.D., Plaintiff's treating
physician at OHSU, indicated on December 27, 2017, that
Plaintiff was only diagnosed in November 2017 with
hyperthyroidism and had not yet started treatment for her
condition.

Tr. 29.

Dr. Rose also noted Plaintiff's

"[i]rritability, anxiety, panic attacks, heart palpitations and
tremor are all symptoms of hyperthyroidism.

Joint pain and

osteoporosis due to calcium loss from the bones can also be
associated."

Id.

Dr. Rose stated Plaintiff "will have some

relief of some of her symptoms" after her hyperthyroidism is
treated.

Id.

Plaintiff contends even though her hyperthyroidism was
discovered seven months after the ALJ's decision, "it is a
condition that develops over time," "it existed during the
relevant period, and it explains many of Plaintiff's symptoms,
including joint pain, depression, and anxiety, which the ALJ
rejected."

Pl. 's Brief (#13) at 5.

Nevertheless, Plaintiff

does not actually challenge the ALJ's decision that Plaintiff is
not disabled.

Moreover, Plaintiff was first diagnosed with

13 - OPINION AND ORDER

hyperthyroidism in November 2107 and does not point to any
evidence in the record that establishes hyperthyroidism existed
before June 2017, the end of the relevant period of disability.
In addition, even though Plaintiff contends her hyperthyroidism
"explains" many of her symptoms, the records she submitted do
not identify any functional limitations that conflict with the
ALJ's evaluation of Plaintiff's RFC.
Accordingly, the Court concludes Plaintiff has failed
to establish that the evidence submitted to the Appeals Council
relates to the period of her alleged disability, and, in any
event, this Court does not have jurisdiction to review the
decision of the Appeals Council.

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this

of April, 2019.

ANNA J. BROWN \.
United States Senior District Judge

14 - OPINION AND ORDER