United States District Court, D. Arizona
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 (9th
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 ...