IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JULIE A SOLER AMOR, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Acting Commissioner of Social 

Security, 

Defendant. 

Karen Stolzberg 

Stolzberg Disability Law 

11830 SW Kerr Parkway, #315 

Lake Oswego, OR 97035 

Attorney for plaintiff 

Billy J. Williams 

United States Attorney 

Janice E. Hebert 

Assistant United States Attorney 

1000 S.W. Third Ave., Suite 600 

Portland, OR 97204-2902 

Jeffery E. Staples 

Case No. 3:14-cv-01526-TC 

FINDINGS AND RECOMMENDATIONS 

Special Assistant United States Attorney 

Social Security Administration 

701 Fifth Avenue, Suite 2900 M/S 221A 

Seattle, WA 98104-7075 

Attorneys for defendant 

1 FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 1 of 19
COFFIN, Magistrate Judge: 

This action is brought pursuant to 42 U.S. C. § 405 ( g) to 

obtain judicial review of the final decision of the Commissioner 

of Social Security Commissioner denying plaintiff's application 

for Supplemental Security Income ( SSI) . For the reasons below, 

the Commissioner's decision should be affirmed. 

Background 

On October 3, 2011, plaintiff protectively filed an 

application for SSI alleging onset of disability as of January 

1, 2003. Tr. 23 The application was denied initially and on 

reconsideration. Id. After requesting a hearing, plaintiff and a 

vocational expert (VE) testified before an Administrative Law 

Judge (ALJ) . Id. Shortly thereafter, the ALJ issued a written 

decision finding that plaintiff was not disabled as of the 

alleged onset date. Id. Plaintiff sought review from the Appeals 

Council, which denied her request for review. Tr. 1. The Appeals 

Council also declined to consider supplemental evidence 

presented by plaintiff, determining that it was not relevant to 

the period of disability. Tr. 2 Plaintiff now seeks judicial 

review from this court. Pl.'s Br. 4. 

At the time of the administrative hearing, plaintiff was 

forty years old with an 8th grade education. Tr. 32. She alleges 

2 - FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 2 of 19
disability since October 2003 from anxiety, depression, and 

PTSD. 

Standard of Review 

The 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. Hammock v. Bowen, 8 7 9 

F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more 

than a mere scintilla. It means such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) 

(citation and internal quotations omitted). The court must weigh 

"both the evidence that supports and detracts from the 

[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 

771, 772 (9th Cir. 1986). Variable interpretations of the 

evidence are insignificant if the Commissioner's interpretation 

is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 

2005) . 

Commissioner's Decision 

The initial burden of proof rests upon the claimant to 

establish disability. Howard v. Heckler, 7 82 F. 2d 14 8 4, 14 8 6 

(9th Cir. 198 6) . To meet this burden, the claimant must 

demonstrate an "inability to engage in any substantial gainful 

activity by reason of any medically determinable physical or 

mental impairment which can be expected to last for a 

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Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 3 of 19
continuous period of not less than 12 months." 42 u.s.c. § 

423(d) (1) (A). 

The Commissioner has established a five-step sequential 

process for determining whether a person is disabled. Bowen v. 

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. At step 

one, the ALJ found that plaintiff had not engaged in 

"substantial gainful activity" during the period of alleged 

disability. Tr. 23; 20 C.F.R. § 416.920(b). 

At step two, the ALJ found that plaintiff had a "medically 

severe impairment or combination of impairments" of moderate 

depression, post-traumatic stress disorder, and alcohol, 

cocaine, methamphetamine, and cannabis abuse, in reported 

remission. Tr. 25; 20 C.F.R. § 416.920(c). The ALJ found that 

these impairments, including plaintiff's substance abuse, did 

not meet or equal a listed impairment. Tr. 2 6; 2 0 C. F. R. § 

416. 920 (d). 

The ALJ then determined that plaintiff had the residual 

functional capacity (RFC) to perform a full range of work at all 

exertion levels. Tr. 27; 20 C.F.R. § 416.920(e). The ALJ also 

found that plaintiff "is limited to simple, repetitive work 

tasks at the SVP 2 level or lower and can only occasionl [ly] 

interact with the public." Tr. 27. Based on this RFC finding, at 

step four the ALJ found that plaintiff was not able to perform 

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Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 4 of 19
her past relevant work as a bindery operator, which consisted of 

semi-skilled, medium work. Tr. 31; 20 C.F.R. § 416.965. 

Alternatively, at step five, the ALJ found that plaintiff 

could perform other work as a home cleaner, hand launderer, and 

garment folder. Tr. 32. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 

416.969. Accordingly, the ALJ found plaintiff not disabled under 

the Act. 

Discussion 

Plaintiff argues this court should reverse the 

Commissioner's decision and remand for the payment of benefits 

because the ALJ did not provide clear and convincing reasons, 

supported by substantial evidence, for rejecting her subjective 

symptom statements. Plaintiff also argues that the Appeals 

Council erred by failing to consider and include supplemental 

evidence in the record. Alternatively, plaintiff argues for 

remand pursuant to sentence six for review by ALJ. 

A. Plaintiff's Complaints Against the ALJ 

Plaintiff contends that the ALJ failed to discredit her 

testimony as to the severity of her symptoms with clear and 

convincing reasons. Specifically, plaintiff argues the ALJ erred 

by: 1) improperly evaluating her daily activities; 2) failing to 

provide germane reasons for discrediting lay testimony; and 

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Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 5 of 19
3)incorrectly evaluating the medical evidence while assessing 

her RFC. 1 

1. Plaintiff's Daily Activities 

First, plaintiff argues that her daily activities do not 

exceed her claimed limitations and that her impairments limit 

her ability to work full-time. Pl.' s Br. 19-22. The ALJ found 

that plaintiff's allegations were not credible because of her 

daily activities and because she had recent work experience 

despite her impairments. Tr. 28. 

Once a plaintiff produces medical evidence of impairment, 

the ALJ may discredit the plaintiff's testimony as to the 

severity of symptoms only with clear and convincing reasons. 

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). In making 

these determinations the ALJ is allowed to use ordinary 

techniques used in the evaluation of credibility. Molina v. 

Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). The ALJ may 

consider the plaintiff's daily activities, work record, and the 

observations of physicians and third parties with personal 

knowledge about the plaintiff's functional limitations. Smolen 

1 Plaintiff suggests that the ALJ lacked credibility and 

impartiality in his findings. Pl.'s Br. 23. However, plaintiff 

fails to show that "the ALJ's behavior, in the context of the 

whole case was 'so extreme as to display clear inability to 

render a fair judgment.'" Rollins v. Massanari, 261 F.3d 853, 

858 (9th Cir 2001); quoting Liteky v. United States, 510 U.S. 

540, 555-56 (1994). Therefore, I find the ALJ's impartiality 

need not be considered. 

6 - FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 6 of 19
v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The ALJ may also 

consider inconsistent or unexplained plaintiff testimony, 

failure to follow a course of treatment or recommendations of 

doctors, evidence of self-limiting behaviors, and a plaintiff's 

work history. See id.; Thomas v. Barnhart, 278 F.3d 947, 959 

(9th Cir. 2002). 

The ALJ resolved that plaintiff's credibility was impaired 

by her activities of daily living. Daily activities may serve as 

a basis for discrediting a claimant where they either "are 

transferable to a work setting" or "contradict claims of a 

totally debilitating impairment." Molina, 674 F.3d at 1112-13. 

The ALJ found that plaintiff's daily activities included 

walking, daily yoga, knitting, beadwork classes, preparing 

simple meals, performing light household chores, using public 

transportation, shopping for food multiple times a month, going 

on "power walks" around the neighborhood, and watching 

television. Tr. 28-29, 237-244, 543, 545, 549, 571. 

The ALJ noted that despite claiming an onset date in 2003, 

plaintiff worked full-time at the Marriott Hotel in 2007. Tr. 

28, 516, 518-519. The ALJ also noted that plaintiff obtained two 

different volunteer jobs, one in 2012 and the other in 2013. Tr. 

28. The ALJ noted plaintiff lost the second volunteer position 

due to missed work in which she spent time with her family, not 

due to her impairment. Tr. 28, 275, 553, 561. The ALJ went on to 

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Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 7 of 19
state that plaintiff had work opportunities but that she "did 

not like the work" and seemed interested in "more glamorous" 

work. Tr. 28, 281. 

I agree that plaintiff's daily activities and work history 

contradicts plaintiff's allegations of disability and supports 

the ALJ's credibility finding. "If a claimant is able to spend a 

substantial part of [her] day engaged in pursuits involving the 

performance of physical functions that are transferable to a 

work setting, a specific finding as to this fact may be 

sufficient to discredit a claimant's allegations." Morgan v. 

Comm' r Soc. Sec. Admin., 169 F. 3d 595, 600 (9th Cir. 1999). 

While plaintiff disagrees with the ALJ' s interpretation of her 

work experience, "[w] hen the evidence before the ALJ is subject 

to more than one rational interpretation, we must defer to the 

ALJ's conclusion." Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 

1190, 1198 (9th Cir. 2004). 

The ALJ also considered two other factors in consideration 

of plaintiff's credibility. First, the ALJ noted strong evidence 

that plaintiff had low motivation to return to the work force 

and that her impairments would not prevent her from working. Tr. 

28. Second, the ALJ noted plaintiff's work history prior to her 

alleged disability was sparse, which raised a question as to 

whether plaintiff's continued unemployment was actually due to 

medical impairments. Id. Thus, even if the ALJ erred in the 

8 - FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 8 of 19
evaluation of plaintiff's medical treatment, these additional 

reasons are nonetheless legally sufficient. See Carmickle v. 

Comm'r Soc. Sec. Admin. 533 F.3d 1155, 1161 n.2, 1162 (9th Cir. 

2008) (noting that "so long as there remains 'substantial 

evidence supporting the ALJ' s conclusions on ... credibility' the 

error is ... harmless and does not warrant reversal.") . Therefore, 

I find no error on the part of the ALJ. 

2. Lay Witness Testimony 

Second, plaintiff asserts that the ALJ neglected to provide 

germane reasons for rejecting lay witness testimony. 

Specifically, plaintiff states the ALJ failed to give 

appropriate weight to her three lay witnesses. Pl.'s Br. 22. 

Lay testimony regarding a claimant's symptoms or how 

impairment affects the ability to work is competent evidence 

that an ALJ must take into account. Molina 674 F.3d at 1114 

(citation omitted) . The ALJ must provide "reasons germane to 

each witness" in order to reject such testimony. Id. (citation 

and internal quotation omitted). 

Nevertheless, the ALJ need not "discuss every witness's 

testimony on a individualized, witness-by-witness basis ... if the 

ALJ gives germane reasons for rejecting testimony by one 

witness, the ALJ need only point to those reasons when rejecting 

similar testimony by a different witness." Id. 

omitted) 

9 - FINDINGS AND RECOMMENDATIONS 

(citations 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 9 of 19
Lay witness testimony may be disregarded on the same basis 

as claimant's discredited subjective reports. Valentine v. 

Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). The 

ALJ may also reject lay witness testimony due to inconsistencies 

with the medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 

1218 (9th Cir. 2005). 

The ALJ noted the first witness, Candyce Scott, stated 

plaintiff's 

completing 

limitations included 

tasks, concentrating, 

"squatting, 

understanding, 

kneeling, 

following 

instructions, and getting along with others." Tr. 2 9, 22 9-3 6. 

The ALJ rejected this statement in part because "the physical 

limitations are not supported by any objective testing in the 

record" and "the mental limits further contrast Dr. Duvall' s 

assessment." Tr. 29. 

The ALJ noted the second witness, Kirstin Juul, stated the 

plaintiff was often nervous, became easily distracted, became 

easily agitated, and had episodes of crying and panicking. Tr. 

2 9, 2 7 6. The ALJ gave this statement less weight because the 

opinion was in contrast to Dr. Duvall's evaluation of plaintiff. 

Tr. 29. 

Lastly, the ALJ considered Charles O'Neill's statement. Mr. 

O'Neill stated plaintiff often became very anxious and nervous, 

always seemed to have a crisis, had a limited ability to focus 

and concentrate, and had remained clean and sober. Tr. 30, 67-

10 - FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 10 of 19
79. The ALJ gave this statement less weight because Mr. O'Neill 

infrequently met with plaintiff, only seeing her two to three 

times a month. Tr. 30. 

Here, the ALJ gave less weight to lay witness testimony 

because some statements were made that were inconsistent with 

medical evidence and one witness interacted with the plaintiff 

infrequently. I find that the ALJ provided germane reasons for 

the weight he assigned each lay witness's testimony. The ALJ' s 

decision is upheld as to this issue. 

3. ALJ's RFC & Step Five Finding 

Finally, plaintiff argues that the ALJ's RFC and step five 

finding are erroneous because they do not evaluate all of the 

relevant medical evidence. 

The RFC is the maximum a claimant can do despite her 

limitations. See 20 C.F.R. § 416.945. In determining the RFC, 

the ALJ must consider limitations imposed by all of a claimant's 

impairments, even those that are not severe, and evaluate "all 

of the relevant medical and other evidence," including the 

claimant's testimony. SSR 96-8p, available at 1996 WL 374184. In 

determining the RFC, the ALJ must consider limitations imposed 

by all of a plaintiff's impairments, even those that are not 

severe, and evaluate "all of the relevant medical and other 

evidence," including plaintiff's testimony. SSR 96-8p, available 

at 1996 WL 374184. 

11 - FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 11 of 19
Plaintiff claims the RFC did not take into consideration 

her "poor working memory," which she claims would affect both 

her pace and ability to concentrate. Pl.' s Br. 2 4. Plaintiff 

also states her impairments would result in an unacceptable 

degree of absenteeism or tardiness, cause difficulty interacting 

with supervisors, coworkers, or the public, and she would 

struggle with completing visual and motor processing tasks or 

maintaining consistent functioning. Pl.' s Br. 25-2 6. Plaintiff 

also alleges the ALJ mistakenly failed to "engage in a 

materiality analysis as required by SSR 13-2p" in regards to her 

past drug and alcohol abuse. Pl.'s Br. 20. 

The ALJ noted several medical opinions when assessing 

plaintiff's RFC. The ALJ assigned some weight to Dr. Robert 

Duvall's psychological evaluation, which suggested plaintiff had 

"few cognitive problems," related well during the evaluation, 

and was able to comprehend the questions. Tr. 30, 359-64. Dr. 

Susan Bettis provided a report to the ALJ stating plaintiff had 

attended counseling, maintained her sobriety, and had increased 

her stability; however, plaintiff remained "clinically depressed 

and anxious." Tr. 30, 535. The ALJ gave less weight to this 

assessment because no "objective testing or information was 

submitted to support her assessment of an inability to maintain 

employment." Tr. 31. 

12 - FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 12 of 19
The ALJ also noted an assessment by Dr. Joshua Boyd which 

stated plaintiff's limited education and intellectual 

functioning would restrict her to simple, repetitive tasks and 

that she would be capable of ~normal interaction with coworkers 

and supervisors." Tr. 31, 100-109. The ALJ also took into 

account an assessment by Dr. Bill Hennings, which stated 

plaintiff should be limited from work involving rapid or 

frequent changes. Tr. 31, 112-22. 

The ALJ is responsible for resolving conflicts in the 

medical testimony and translating the claimant's impairments 

into concrete functional limitations in the RFC. StubbsDanielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only 

limitations supported by substantial evidence must be 

incorporated into the RFC and, by extension, the disposi ti ve 

hypothetical question posed to the VE. Osenbrock v. Apfel, 2 4 0 

F.3d 1157, 1163-65 (9th Cir. 2001). 

While plaintiff disagrees with the ALJ's interpretation of 

complainant's subjective symptoms, " [w] hen the evidence before 

the ALJ is subject to more than one rational interpretation, we 

must defer to the ALJ's conclusion." Batson, 359 F.3d at 1198. 

Here, the ALJ mentioned all relevant medical evidence and 

doctor's opinions in his assessment of plaintiff's RFC. The RFC 

limited the plaintiff to simple, repetitive work tasks at SVP 2 

or lower and limited her to occasional interaction with the 

13 - FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 13 of 19
public. Tr. 27. These limitations align with the recommendations 

of several doctors. This RFC has adequately incorporated each 

medical opinion after appropriate weight was given. The RFC is 

upheld. 

Finally, plaintiff also claims the ALJ erred by failing to 

conduct a materiality analysis regarding her drug abuse as 

required by Social Security Ruling 13-2p. Pl.'s Br. 20. 

Plaintiff is incorrect. A materiality analysis under SSR 13-2p 

is only necessary when the plaintiff is found to be disabled 

under the Act. As this plaintiff was not found to be disabled, 

this regulation has no relevance. SSR 13-2p, available at 2013 

WL 621536. 

Thus, because the ALJ provided clear and convincing reasons 

supported by the record, the ALJ' s evaluation of plaintiff's 

credibility is upheld. 

B. Supplemental Evidence Presented to the Appeals Council 

Plaintiff submitted 101 pages of new medical records to the 

Appeals Council after the ALJ's August 2013 decision. Tr. 1. The 

Appeals Council concluded that the supplemental records did not 

concern the alleged period of disability and were not material 

to the ALJ' s decision and, therefore, declined to include the 

new evidence in the record. Tr. 2. 

Plaintiff contends that the Appeals Council unjustly failed 

to consider the supplemental evidence relating to her 

14 - FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 14 of 19
disability. Pl.'s Br. at 18. Plaintiff maintains that the 

Appeals Council is required to consider such evidence and that 

it must be viewed as part of the record, citing Brewes v. Comm'r 

Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). However, 

the Appeals Council's denial of plaintiff's request for review 

is not subject to judicial review. The Social Security Act 

permits judicial review of the agency's "final decision." 42 

U.S.C. § 405(g). The Appeals Council's denial of a request for 

review is not a final decision; rather, such denial renders the 

ALJ's decision as the "final decision" of the Commissioner. Sims 

v. fel, 530 U.S. 103, 107 (2000); 20 C.F.R. § 404.981. 

Moreover, plaintiff's supplemental medical evidence is not 

part of the administrative record subject to review by this 

Court. Pursuant to the relevant agency regulation, "[i]f new and 

material evidence is submitted, the Appeals Council shall 

consider the additional evidence only where it relates to the 

period on or before the date of the administrative law judge 

hearing decision." 20 C.F.R. § 404.970(b) (1). If a claimant 

submits "evidence which does not relate to the period on or 

before the date of the administrative law judge hearing 

decision, the Appeals Council will return the additional 

evidence." Id. § 404.976(b) (1). 

Here, the Appeals Council stated that it "looked at" the 

new evidence dated August 2013 to August 2014, and determined 

15 - FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 15 of 19
that the "new information is about a later time." Tr. 2. 

Therefore, the Appeals Council found that the supplemental 

evidence related to a time period after the ALJ's decision, and 

the evidence was not incorporated into the record. 

Further, § 405(g) grants the Commissioner the discretion to 

file the administrative record: "As part of the Commissioner's 

answer, the Commissioner of Social Security shall file a 

certified copy of the transcript of the record including the 

evidence upon which the findings and decision complained of are 

based." 42 U.S.C. § 405(g). The Commissioner did not include the 

supplemental evidence in the transcript of the record. 

Finally, plaintiff's reliance on Brewes is unavailing. 

There, "the Appeals Council accepted Brewes' proffered new 

evidence and made it part of the record, apparently concluding 

that it was material within the meaning of 20 C.F.R. § 

4 0 4. 97 0 (b) . " Brewes, 682 F. 3d at 1163. The Appeals Council also 

considered the new evidence and determined that it did not 

provide a basis for changing the ALJ's decision. The Ninth 

Circuit thus found that "when the Appeals Council considers new 

evidence in deciding whether to review a decision of the ALJ, 

that evidence becomes part of the [] record." Id. ; see also 

Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993) (finding 

new evidence to be part of the record where the Appeals Council 

examined the entire record, including the additional material, 

16 - FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 16 of 19
and concluded "that the ALJ' s decision was proper and that the 

additional material failed to 'provide a basis for changing the 

hearing decision.'") . Unlike Brewes, the Appeals Council here 

did not accept plaintiff's new evidence and did not make such 

evidence part of the record. 

Thus, the supplemental evidence submitted to the Appeals 

Council was not incorporated into the record and is not subject 

to review by this Court for purpose of disability. 

Alternatively, plaintiff appears to suggest that this 

court should remand the case under "sentence six" of 405 (g). 

Sentence six permits remand to the agency to review "new 

evidence which is material," provided "that there is good cause 

for the failure to incorporate such evidence into the record in 

a prior proceeding." 42 U.S.C. § 405(g). To be material, the new 

evidence must "bear directly and substantially on the matter in 

dispute" and demonstrate a "reasonable possibility" that the 

evidence would change the outcome of the administrative hearing. 

s v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) 

However, plaintiff has made no attempt to meet these 

requirements. Plaintiff has failed to explain why these new 

documents are new, meet the standard of materiality, or provide 

good cause for failing to incorporate them in her prior 

proceedings. Plaintiff argues that simply because she provided 

these documents to the Appeals Council, this court must 

17 - FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 17 of 19
incorporate the documents into the record. Pl.' s Reply Br. 4. 

However, plaintiff fails to provide any case law or statutory 

support for this argument. Instead, plaintiff argues the court 

must allow her to provide "rebuttal" evidence or risk violating 

her due process rights. Pl.'s Reply Br. 4. 

In social security cases, this court is a court of review. 

It reviews the administrative process and final decision to 

ensure the proper steps and safeguards were implemented. As 

such, this court cannot introduce or accept new evidence into 

the record. Rather, plaintiff must explain why the supplemental 

evidence is new and material, and she must provide good cause 

for its absence up until this point. Plaintiff fails to do so. 

Accordingly, the supplemental evidence does not support remand 

for further review under sentence six. 2 

Conclusion 

The ALJ did not err in evaluating Plaintiff's credibility, 

and plaintiff fails to show that the supplemental evidence 

warrants remand pursuant to sentence six. Accordingly, the 

Commissioner's decision should be AFFIRMED. 

This recommendation is not an order that is immediately 

appealable to the Ninth Circuit Court of appeals. Any notice of 

appeal pursuant to Rule 4(a) (1), Federal Rules of Appellate 

2 Arguably, plaintiff's supplemental evidence could support a new 

application for benefits. However, the court cannot consider 

such evidence in this proceeding. 

18 - FINDINGS AND RECOMMENDATIONS 

Case 3:14-cv-01526-TC Document 26 Filed 10/21/15 Page 18 of 19
Procedure, should not be filed until entry of the district 

court's judgment or appealable order. The parties shall have 

fourteen ( 14) days from the date of service of a copy of this 

recommendation within which to file specific written objections 

with the court. Thereafter, the parties shall have fourteen 

(14) days within which to file a response to the 

objections. Failure to timely file objections to any factual 

determination of the Magistrate Judge will be considered as a 

waiver of a party's right to de novo consideration of the 

factual issues and will constitute a waiver of a party's right 

to appellate review of the findings of fact in an order or 

judgment entered pursuant to this recommendation. 

Dated this ;),{ day of October, 2015. 

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