1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Elena Nesbitt, No. CV-24-00177-TUC-JAS (LCK)
10 Plaintiff, REPORT AND RECOMMENDATION 11 v.
12 Commissioner of Social Security Administration, 13 14 Defendant. 15 Plaintiff Elena Nesbitt filed this action pursuant to 42 U.S.C. § 405(g) seeking 16 judicial review of a final decision by the Commissioner of Social Security. (Doc. 1.) Before 17 the Court are Plaintiff's Opening Brief, Defendant's Responsive Brief, and Plaintiff's Reply. 18 (Docs. 16, 18, 19.) Pursuant to the Rules of Practice of the Court, this matter was referred 19 to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings 20 and administrative record, the Magistrate Judge recommends the District Court, after its 21 independent review, deny Plaintiff's appeal. 22 FACTUAL AND PROCEDURAL HISTORY 23 Plaintiff filed an application for Disability Insurance Benefits (DIB) and 24 Supplemental Security Income (SSI) in March 2020, alleging disability from February 1, 25 2013. (Administrative Record (AR) 236, 249.) She had past work as a correctional officer, 26 at a call center, and as a server in a school cafeteria. (AR 278.) She was born in May 1981, 27 making her 31 years of age at the alleged onset date of her disability. (AR 236.) Plaintiff's 28 application was denied upon initial review (AR 131-48) and on reconsideration (AR 149- 1 72). A telephonic hearing was held on April 13, 2022. (AR 124-30.) Subsequently, the ALJ 2 found, at Step Two, that Plaintiff was not disabled because she did not have a severe 3 impairment. (AR 16-22.) The Appeals Council denied review of that decision. (AR 1.) 4 STANDARD OF REVIEW 5 The Commissioner employs a five-step sequential process to evaluate SSI and DIB 6 claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460- 7 462 (1983). To establish disability the claimant bears the burden of showing she (1) is not 8 working; (2) has a severe physical or mental impairment; (3) the impairment meets or 9 equals the requirements of a listed impairment; and (4) claimant's Residual Functional 10 Capacity (RFC) precludes her from performing her past work. 20 C.F.R. 11 §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to 12 show that the claimant has the RFC to perform other work that exists in substantial numbers 13 in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the 14 Commissioner conclusively finds the claimant "disabled" or "not disabled" at any point in 15 the five-step process, he does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 16 416.920(a)(4). 17 "The ALJ is responsible for determining credibility, resolving conflicts in medical 18 testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 19 Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings 20 of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 21 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla but less than a 22 preponderance." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. 23 Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to 24 deny benefits only "when the ALJ's findings are based on legal error or are not supported 25 by substantial evidence in the record as a whole." Aukland v. Massanari, 257 F.3d 1033, 26 1035 (9th Cir. 2001). This is so because the ALJ "and not the reviewing court must resolve 27 conflicts in the evidence, and if the evidence can support either outcome, the court may not 28 substitute its judgment for that of the ALJ." Matney, 981 F.2d at 1019 (quoting Richardson 1 v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 2 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, "cannot be affirmed 3 simply by isolating a specific quantum of supporting evidence." Sousa v. Callahan, 143 4 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 5 1989)). Reviewing courts must consider the evidence that supports as well as detracts from 6 the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 7 DISCUSSION 8 Plaintiff alleges the Court should issue a sentence six remand so the ALJ may 9 consider new evidence. A remand pursuant to sentence six of 42 U.S.C § 405(g) does not 10 involve the Court issuing a judgment on the administrative decision, "[t]he district court 11 does not affirm, modify, or reverse the Secretary's decision."1 See Melkonyan v. Sullivan, 12 501 U.S. 89, 98, 102 (1991) (noting that the district court retains jurisdiction and enters 13 final judgment after the remand proceedings are complete). Instead, a sentence six remand 14 is for the purpose of taking additional evidence and is available "only upon a showing that 15 there is new evidence which is material and that there is good cause for the failure to 16 incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g); see 17 also Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). 18 After Plaintiff requested review by the Appeals Council, she submitted additional 19 medical records to the council that reflected care received in July and August 2023, after 20 the ALJ issued his decision. (AR 26-123.) The Appeals Council determined that the records 21 from COPE did not relate to the period at issue in the ALJ's May 19, 2023, opinion and did 22 not affect that decision. (AR 2.) 23 The additional records are from COPE and reflect that, in July 2023, Plaintiff sought 24 mental health treatment as well as primary care. (AR 30, 53.) She reported that she was 25 1 Plaintiff acknowledges that, at this time, she is not entitled to a judgement in her 26 favor because she did not present evidence of disability and the ALJ’s decision was not erroneous based on the record he reviewed. (Doc. 16 at 6; Doc.
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Elena Nesbitt, No. CV-24-00177-TUC-JAS (LCK)
10 Plaintiff, REPORT AND RECOMMENDATION 11 v.
12 Commissioner of Social Security Administration, 13 14 Defendant. 15 Plaintiff Elena Nesbitt filed this action pursuant to 42 U.S.C. § 405(g) seeking 16 judicial review of a final decision by the Commissioner of Social Security. (Doc. 1.) Before 17 the Court are Plaintiff's Opening Brief, Defendant's Responsive Brief, and Plaintiff's Reply. 18 (Docs. 16, 18, 19.) Pursuant to the Rules of Practice of the Court, this matter was referred 19 to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings 20 and administrative record, the Magistrate Judge recommends the District Court, after its 21 independent review, deny Plaintiff's appeal. 22 FACTUAL AND PROCEDURAL HISTORY 23 Plaintiff filed an application for Disability Insurance Benefits (DIB) and 24 Supplemental Security Income (SSI) in March 2020, alleging disability from February 1, 25 2013. (Administrative Record (AR) 236, 249.) She had past work as a correctional officer, 26 at a call center, and as a server in a school cafeteria. (AR 278.) She was born in May 1981, 27 making her 31 years of age at the alleged onset date of her disability. (AR 236.) Plaintiff's 28 application was denied upon initial review (AR 131-48) and on reconsideration (AR 149- 1 72). A telephonic hearing was held on April 13, 2022. (AR 124-30.) Subsequently, the ALJ 2 found, at Step Two, that Plaintiff was not disabled because she did not have a severe 3 impairment. (AR 16-22.) The Appeals Council denied review of that decision. (AR 1.) 4 STANDARD OF REVIEW 5 The Commissioner employs a five-step sequential process to evaluate SSI and DIB 6 claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460- 7 462 (1983). To establish disability the claimant bears the burden of showing she (1) is not 8 working; (2) has a severe physical or mental impairment; (3) the impairment meets or 9 equals the requirements of a listed impairment; and (4) claimant's Residual Functional 10 Capacity (RFC) precludes her from performing her past work. 20 C.F.R. 11 §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to 12 show that the claimant has the RFC to perform other work that exists in substantial numbers 13 in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the 14 Commissioner conclusively finds the claimant "disabled" or "not disabled" at any point in 15 the five-step process, he does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 16 416.920(a)(4). 17 "The ALJ is responsible for determining credibility, resolving conflicts in medical 18 testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 19 Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings 20 of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 21 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla but less than a 22 preponderance." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. 23 Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to 24 deny benefits only "when the ALJ's findings are based on legal error or are not supported 25 by substantial evidence in the record as a whole." Aukland v. Massanari, 257 F.3d 1033, 26 1035 (9th Cir. 2001). This is so because the ALJ "and not the reviewing court must resolve 27 conflicts in the evidence, and if the evidence can support either outcome, the court may not 28 substitute its judgment for that of the ALJ." Matney, 981 F.2d at 1019 (quoting Richardson 1 v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 2 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, "cannot be affirmed 3 simply by isolating a specific quantum of supporting evidence." Sousa v. Callahan, 143 4 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 5 1989)). Reviewing courts must consider the evidence that supports as well as detracts from 6 the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 7 DISCUSSION 8 Plaintiff alleges the Court should issue a sentence six remand so the ALJ may 9 consider new evidence. A remand pursuant to sentence six of 42 U.S.C § 405(g) does not 10 involve the Court issuing a judgment on the administrative decision, "[t]he district court 11 does not affirm, modify, or reverse the Secretary's decision."1 See Melkonyan v. Sullivan, 12 501 U.S. 89, 98, 102 (1991) (noting that the district court retains jurisdiction and enters 13 final judgment after the remand proceedings are complete). Instead, a sentence six remand 14 is for the purpose of taking additional evidence and is available "only upon a showing that 15 there is new evidence which is material and that there is good cause for the failure to 16 incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g); see 17 also Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). 18 After Plaintiff requested review by the Appeals Council, she submitted additional 19 medical records to the council that reflected care received in July and August 2023, after 20 the ALJ issued his decision. (AR 26-123.) The Appeals Council determined that the records 21 from COPE did not relate to the period at issue in the ALJ's May 19, 2023, opinion and did 22 not affect that decision. (AR 2.) 23 The additional records are from COPE and reflect that, in July 2023, Plaintiff sought 24 mental health treatment as well as primary care. (AR 30, 53.) She reported that she was 25 1 Plaintiff acknowledges that, at this time, she is not entitled to a judgement in her 26 favor because she did not present evidence of disability and the ALJ’s decision was not erroneous based on the record he reviewed. (Doc. 16 at 6; Doc. 19 at 3.) However, in 27 contradiction of that position, she also argues the ALJ committed error by not further developing the record and questioning her in greater detail at the hearing. (Doc. 16 at 8.) 28 Plaintiff clearly states that she is seeking only a sentence six remand (not a finding of error and judgment) (Doc. 19 at 3), therefore, the Court need not evaluate whether the ALJ erred. 1 experiencing trauma and depression because of domestic violence inflicted by her husband. 2 (AR 36, 39.) Her husband was in jail at that time and her children were in the custody of 3 DCS. (AR 39.) During her appointments at COPE, she often presented with a depressed 4 and/or anxious mood, but her mental status exams otherwise were normal. (AR 37, 50, 56, 5 70, 80, 95, 104, 115, 116, 120.) She reported that she had experienced depression since 6 childhood and her experiences with her husband had taken a toll on her physical and mental 7 health. (AR 69, 76.) She reported that she began suffering from nightmares and flashbacks 8 in July 2023. (AR 82.) She was diagnosed with major depressive disorder, recurrent and 9 moderate, and anxiety disorder. (Id.) In August, she stated that medication had improved 10 her anxiety although it was still present. (AR 108.) The records do not include any medical 11 opinions that her mental impairments existed or were severe prior to July 2023. 12 With respect to physical impairments, the COPE records reflect that Plaintiff 13 reported a history of fibromyalgia and endorsed multiple tender points indicative of 14 fibromyalgia, but physical exams were otherwise normal (except for a finding of scoliosis). 15 (AR 53, 56, 57, 88, 90-91.) In August, she informed her primary care doctor that she had 16 begun taking Tylenol #3 for pain with good effect and needed it only one time per day. 17 (AR 88.) She reported to COPE that she was seeking social security disability based solely 18 on fibromyalgia and pain, not on mental health issues. (AR 39.) 19 Plaintiff requests remand to allow the ALJ to consider the COPE medical records 20 and for her to provide additional testimony about her symptoms during the period of 21 alleged disability. As an initial matter, it is unclear that the COPE records qualify as new 22 evidence. They were submitted to the Appeals Council and made part of the record before 23 this Court, which suggests they are not new evidence. See Brewes v. Comm'r of Soc. Sec. 24 Admin., 682 F.3d 1157, 1164 (9th Cir. 2012) (finding that "[s]ection 405(g) materiality is 25 not at issue here because that standard applies only to new evidence that is not part of the 26 administrative record and is presented in the first instance to the district court."). 27 Additionally, Plaintiff's personal knowledge about her symptoms during the relevant time 28 is not new. It was available and she could have provided that information at numerous 1 points in the agency process. Recognizing that neither Plaintiff's testimony nor the COPE 2 records may qualify as "new," the Court conducts the remainder of the sentence six analysis 3 by evaluating whether the additional evidence is material and whether Plaintiff has 4 established good cause for not presenting it sooner. 5 As for good cause, counsel for Plaintiff suggests she did not seek treatment for her 6 mental health earlier because she was a victim of domestic violence. However, counsel 7 acknowledges that to be a general explanation, and she states that Plaintiff's specific 8 reasons are not reflected in the records. (Doc. 16 at 10.) The records indicate that Plaintiff 9 first sought mental health treatment after her husband was jailed (and her children removed 10 from her custody). Choosing to seek treatment once free of domestic violence does not 11 necessarily demonstrate that she could not have sought treatment earlier. Fear of disclosing 12 domestic violence does not correlate directly to a person being unable to seek medical care 13 for issues not arising from domestic violence. 14 Neither the records nor Plaintiff offer any explanation as to why a victim of domestic 15 violence is prevented from seeking treatment for fibromyalgia and pain, the impairments 16 that formed the basis of her application for social security. The limited records indicate that 17 Plaintiff did seek and obtain pain medication regularly during her first two pregnancies and 18 sporadically after that time. (AR 338.) Also, while living with her husband and pregnant 19 with her third child, she reported a singular appointment with a pain specialist. (Id.) The 20 Court finds Plaintiff has not established good cause for her failure to seek treatment, 21 disclose medical records for the treatment she did seek, or provide testimony about her 22 symptoms. See Mayes v. Massanari, 276 F.3d 453, 463 (9th Cir. 2001) (holding that a 23 claimant must establish good cause for not seeking the medical examinations or opinions 24 at an earlier time). 25 Next, the Court examines materiality. "New evidence is material if it 'bear[s] 26 directly and substantially on the matter in dispute,' and if there is a 'reasonabl[e] possibility 27 that the new evidence would have changed the outcome of the . . . determination.'" Bruton 28 v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001), as amended (Nov. 9, 2001) (quoting Booz 1 v. Sec'y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984)). It is not evident 2 that the COPE records bear directly and substantially on Plaintiff's ability to work between 3 February 2013 and May 2023. Although Plaintiff reported that her mental health issues in 4 July and August 2023 were caused by the domestic violence she had experienced in prior 5 years, there is no evidence about when she began to experience those symptoms. She 6 reported depression since childhood but that had not prevented her from working for a 7 period of adulthood. Additionally, she reported an exacerbation of symptoms, flashbacks 8 and nightmares, that began only in July 2023. The records do not document her symptoms 9 prior to July 2023 and no medical source offered an opinion as to her diagnosis or 10 functioning prior to that time. Therefore, Plaintiff has not established the COPE evidence 11 bears directly and substantially on her disability claim. 12 Finally, Plaintiff has not established a reasonable possibility that the new evidence 13 would have led to the ALJ reaching a different decision. The COPE records provide no 14 information about her symptoms or functioning prior to May 2023, other than Plaintiff's 15 report of a prior fibromyalgia diagnosis and depression since childhood. Additionally, once 16 prescribed medication for pain, she reported that she did not need to take it as often as 17 allowed and she was satisfied with the pain management. (AR 88.) As to mental health, 18 Plaintiff's mental status exams were relatively normal, and she reported improvement in 19 therapy in less than 60 days. (AR 108.) Plaintiff's psychiatric medication also led to 20 improvement within the first month. There is not a reasonable possibility that, upon review 21 of the COPE records, the ALJ would find that Plaintiff had met Step Two by establishing 22 impairments that significantly limited her ability to perform basic work activities for twelve 23 or more months. Additionally, Plaintiff has not provided a proffer as to the testimony she 24 could offer upon remand. Therefore, the Court is unable to determine that additional 25 testimony would bear directly and substantially on her claim or would have a reasonable 26 possibility of changing the outcome. In sum, Plaintiff has not satisfied the good cause and 27 materiality requirements for a sentence six remand. 28 1 RECOMMENDATION 2 A federal court may affirm, modify, reverse, or remand a social security case. 42 3| U.S.C. § 405(g). The Court concludes that Plaintiff has not demonstrated the right to a 4] sentence six remand, the only relief requested. Therefore, the Magistrate Judge 5 | recommends that the District Court deny Plaintiff's appeal. 6 Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within ten (10) days of being served with a copy of the Report and 8 | Recommendation. A party may respond to the other party's objections within ten (10) days. 9| No reply brief shall be filed on objections unless leave is granted by the district court. If 10 | objections are not timely filed, they may be deemed waived. If objections are filed, the 11 | parties should use the following case number: CV-24-00177-TUC-JAS. 12 Dated this 28th day of February, 2025. 13 14 . . 15 Lifaniell 0. Air □ onorable Lynnette C. Kimmiuns 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28
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