Heller v. Commissioner of Social Security Administration

          ORDER

          Honorable D. Thomas Ferraro United States Magistrate Judge.

         Plaintiff Jane D. Heller (“Heller”) filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). (Doc. 1.) Before the Court are Heller's opening brief, the Commissioner's answering brief, and Heller's reply brief. (Docs. 14, 19, 20.) The parties consented to a decision being rendered by the undersigned United States Magistrate Judge. (Doc. 11.) As explained below, the decision of the ALJ will be affirmed.

         BACKGROUND

         Procedural Background

         On February 6, 2012, Heller filed an application for Social Security Benefits under Title II and XVI alleging a disability onset date of March 1, 2011 which was later amended to February 28, 2011. On June 17, 2013, Heller's claim was denied at the initial level. On August 19, 2014, Heller's claim was denied on reconsideration. On September 1, 2015, a hearing was held before Administrative Law Judge David K. Gatto (the “ALJ”). On November 18, 2015, the ALJ issued an unfavorable decision. On December 31, 2017, Heller timely filed a request for review to the appeals council. On April 11, 2017, Heller's request for review was denied. The ALJ's unfavorable decision is the Commissioner's final decision for purposes of this Court's judicial review under 42 U.S.C. § 405(g).

         Factual Background

         Born in 1965, Heller was 50 years old at the time of the ALJ's unfavorable determination. (Administrative Record (“AR”) 40-41, 58.) Heller has a master's degree and no past relevant work. (AR 40.) At step two of the sequential evaluation process the ALJ determined that Heller had the following severe impairments:

asthma, bilateral advanced chondromalacia/degenerative joint disease of the knees, torn ligament and degenerative joint disease affecting the right foot, left shoulder tendinosis, a biceps tendon tear, impingement, bursitis and osteoarthrosis and a history of left shoulder repair surgery, right shoulder tendinosis or strain and mild bursitis.

(AR 32.) The ALJ determined that Heller's cardiac condition was not a severe impairment concluding that multiple medical records showed no significant cardiac abnormalities. (AR 33.) The ALJ also determined that Heller's laryngospasms (vocal fold contractions) were not severe because the record established that Heller sought medical care only once for this condition during the relevant time period and had obtained no significant treatment for it. (AR 34.)

         At step three, the ALJ determined that Heller's impairments, whether considered singly or in combination, did not meet or medically equal an impairment as set forth in the listings of impairments, 20 C.F.R. Pt. 404, Subpt. P, App. 1. (AR 36.) The ALJ determined:

that [Heller] has the residual functional capacity to perform light work, as defined by the Dictionary of Occupational Titles and the Social Security Regulations, except she is limited to occasional stair, ramp and ladder climbing; she is barred from all rope and scaffold climbing, and crawling; she is limited to frequent balancing and occasional stooping, kneeling, and crouching; she is limited to occasional exposure to dust, fumes, gases and poor ventilation, humidity and wetness, temperature extremes, and to hazards such as heights and dangerous moving machinery. She is further limited to frequent overhead reaching with both arms.

(AR 36.) The ALJ concluded that Heller could perform three (3) representative unskilled occupations that existed in significant numbers in the regional and national economy - interviewer, ticket taker, and production helper. (AR 41.) As such, the ALJ determined that Heller was not disabled. (AR 42.)

         Issues Raised

         Heller raises three claims of error. First, Heller argues that the ALJ erred by ignoring substantial evidence of her cardiac condition and failing to include limitations related to her laryngospasms in his residual functional capacity (“RFC”) determination. (Doc. 14 at pp. 2-3, 10-11, 14-15; Doc. 20 at pp. 2-3.) Second, Heller argues that the ALJ erred in giving “inappropriate weight” to the opinion of treating physician Dr. Prem Kittusamy, M.D. (Doc. 14 at p. 2, 11-14; Doc. 20 at pp. 3-5.) Third, Heller argues that more recent medical evidence she submitted to the Appeals Counsel should be considered by this Court. (Doc. 20 at p. 5-6.) She asks the Court to reverse the decision of the ALJ and remand the matter for an award of benefits or, alternatively, to remand for reconsideration. Id. at p. 7. The Commissioner argues against all of Heller's claims of error. (Doc. 19.)

         The Record

         As mentioned above, Heller's third issue for review is that new evidence that she submitted to the Appeals Counsel that was made part of the record should be considered by this Court in its review of the ALJ's decision. (Doc. 14 at p. 6; Doc. 20 at p. 5.) The Commissioner argues that the new medical evidence is not material and that Heller has not established good cause for failing to present the evidence to the ALJ earlier. (Doc. 19 at pp. 14-16.) The Commissioner also argues that even if the new evidence were considered, the new evidence does not undermine the substantial evidence supporting the ALJ's decision. Id. at p. 16 n. 4.

         Where the Appeals Counsel has made new evidence part of the administrative record, the reviewing court must consider the new evidence in determining whether the ALJ's decision is supported by substantial evidence. Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1165 (9^th Cir. 2012) (“[W]hen the Appeals Counsel considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record which the district court must consider when reviewing the Commissioner's final decision for substantial evidence.” Here, the ...