124 F3d 212 Morfin v. S Chater

124 F.3d 212

Maria Cervantes MORFIN, Plaintiff-Appellant,
Shirley S. CHATER, Commissioner of Social Security,

No. 97-55211.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 8, 1997.**
Decided Sept. 15, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeal from the United States District Court for the Southern District of California, No. CV-95-01090-IGE; Irma E. Gonzalez, District Judge, Presiding.

Before HALL, BRUNETTI and THOMAS, Circuit Judges.

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Maria Cervantes Morfin appeals the district court's order denying her motion for summary judgment and alternative motion for remand, and granting the cross-motion of the Commissioner of Social Security Administration ("Commissioner"). The result was the denial of Morfin's application for disability insurance benefits under 42 U.S.C. § 405(g). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


Morfin contends that the district court erred in refusing to remand or reverse, in light of the opinion of Morfin's treating psychiatrist, Dr. Neal Kline, that she has been 100 percent disabled since her accident. This contention lacks merit. As discussed below, Dr. Kline's report, based on an examination of Morfin performed after the administrative law judge ("ALJ") rendered his decision, did not provide a basis for changing the ALJ's conclusion that Morfin was able to work.


A claimant seeking remand or reversal based upon new evidence must demonstrate that the evidence is "material, and 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). Because Morfin has offered no explanation as to materiality or good cause, we affirm. See Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir.1990); see also Moncada v. Chater, 60 F.3d 521, 523 (9th Cir.1995) (per curiam) (stating that district court properly affirms decision to deny benefits if decision is supported by substantial evidence and is based on application of correct legal standards).


To the extent that Morfin disputes the decision to accept Dr. Fleischer's opinion over that of Dr. Heck, we note that the ALJ provided specific and legitimate reasons for doing so, supported by substantial evidence in the record. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995); see also Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir.1987) (stating that evaluation of conflict in evidence is within ALJ's discretion).




The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3