Janice Deloris Hawkins v. Nancy A. Berryhill ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JANICE D. H.,1 Case No. CV 18-08010-RAO 12 Plaintiff, 13 v. MEMORANDUM OPINION AND 14 ORDER ANDREW M. SAUL, 15 Defendant. 16 17 18 I. INTRODUCTION 19 Plaintiff Janice D. H. (“Plaintiff”) challenges the Commissioner’s denial of her 20 application for a period of disability, disability insurance benefits (“DIB”), and 21 supplemental security income (“SSI”). For the reasons stated below, the decision of 22 the Commissioner is REVERSED, and the matter is REMANDED. 23 II. PROCEEDINGS BELOW 24 On January 21, 2015, Plaintiff filed a Title II application for DIB alleging 25 disability beginning on December 5, 2014. (Administrative Record (“AR”) 307-08.) 26 27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 One day later, Plaintiff filed an application for SSI alleging disability beginning on 2 December 5, 2014. (AR 309-314.) Plaintiff’s claims were denied on June 2, 2015. 3 (AR 143-47.) Plaintiff filed a request for reconsideration on June 17, 2015, which 4 was denied on August 14, 2015. (AR 147, 150.) On August 17, 2015, Plaintiff filed 5 a written request for hearing, and a hearing was held on July 18, 2017. (AR 62-76, 6 156.) Represented by counsel, Plaintiff appeared and testified, along with an 7 impartial vocational expert. (AR 62-76.) On August 16, 2017, the Administrative 8 Law Judge (“ALJ”) found that Plaintiff had not been under a disability, pursuant to 9 the Social Security Act,2 from December 5, 2014 through August 16, 2017, the date 10 of the ALJ’s decision. (AR 36-37.) The ALJ’s decision became the Commissioner’s 11 final decision when the Appeals Council denied Plaintiff’s request for review on July 12 18, 2018. (AR 1.) Plaintiff filed this action on September 14, 2018. (Dkt. No. 1.) 13 The ALJ followed a five-step sequential evaluation process to assess whether 14 Plaintiff was disabled under the Social Security Act. See Lester v. Chater, 81 F.3d 15 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not 16 engaged in substantial gainful activity since December 5, 2014, the alleged onset date 17 (“AOD”). (AR 26.) At step two, the ALJ found that Plaintiff had the following 18 severe impairments: multiple sclerosis; myoligamentous strain of the cervical spine, 19 lumbosacral spine, right shoulder, left shoulder, and bilateral knees; depression; and 20 anxiety. (AR 26-27.) At step three, the ALJ found that Plaintiff “does not have an 21 impairment or combination of impairments that meets or medically equals the 22 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 23 1.” (AR 27.) 24 /// 25 /// 26 2 Persons are “disabled” for purposes of receiving Social Security benefits if they are 27 unable to engage in any substantial gainful activity owing to a physical or mental impairment expected to result in death, or which has lasted or is expected to last for 28 a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A). 1 Before proceeding to step four, the ALJ found that Plaintiff had the residual 2 functional capacity (“RFC”) to: 3 [P]erform light work . . . except she can stand and/or walk for 6 hours in an 8 hour workday; sit for 6 hours in an 8-hour workday; occasionally 4 climb, balance, stoop, kneel, crouch, crawl; occasionally reach[ ] in all 5 directions with her left arm; can understand and remember tasks; can sustain concentration and persistence; can socially interact with the 6 general public, co-workers, and supervisors; and, can adapt to 7 workplace changes frequently enough to perform unskilled, low stress jobs that require simple instructions. 8 9 (AR 29.) At step four, based on Plaintiff’s RFC and the vocational expert’s 10 testimony, the ALJ found that Plaintiff was unable to perform any past relevant work. 11 (AR 35.) At step five, the ALJ found that “there are jobs that exist in significant 12 numbers in the national economy that the claimant can perform.” (Id.) Accordingly, 13 the ALJ determined that Plaintiff had not been under a disability from the AOD 14 through the date of decision. (AR 35-37.) 15 III. STANDARD OF REVIEW 16 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 17 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 18 supported by substantial evidence and if the proper legal standards were applied. 19 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’ 20 means more than a mere scintilla, but less than a preponderance; it is such relevant 21 evidence as a reasonable person might accept as adequate to support a conclusion.” 22 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. 23 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial 24 evidence requirement “by setting out a detailed and thorough summary of the facts 25 and conflicting clinical evidence, stating his interpretation thereof, and making 26 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). 27 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 28 specific quantum of supporting evidence. Rather, a court must consider the record 1 as a whole, weighing both evidence that supports and evidence that detracts from the 2 Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 3 (citations and internal quotation marks omitted). “‘Where evidence is susceptible to 4 more than one rational interpretation,’ the ALJ’s decision should be upheld.” Ryan 5 v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. 6 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at 882 (“If the 7 evidence can support either affirming or reversing the ALJ’s conclusion, we may not 8 substitute our judgment for that of the ALJ.”). The Court may review only “the 9 reasons provided by the ALJ in the disability determination and may not affirm the 10 ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th 11 Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 12 IV. DISCUSSION 13 Plaintiff raises the following issues for review: (1) whether new and material 14 evidence submitted to the Appeals Council renders the ALJ’s decision no longer 15 supported by substantial evidence; and (2) whether the ALJ properly evaluated 16 Plaintiff’s subjective complaints. (See Plaintiff’s Memorandum in Support of the 17 Complaint (“Pl’s Mem.”) 5, 8.) For the reasons below, the Court reverses and 18 remands. 19 A. The ALJ Properly Evaluated Plaintiff’s Subjective Complaints3 20 Plaintiff argues that the ALJ failed to properly consider Plaintiff’s subjective 21 testimony. (Pl’s Mem. 8-10; Plaintiff’s Reply (“Pl’s Reply”) 3-4.) The 22 Commissioner disagrees. (Defendant’s Memorandum in Support of Defendant’s 23 Answer (“Def’s Mem.”) 4-11.) 24 /// 25 /// 26 27 3 Because subjective symptom testimony is one factor that the ALJ must consider when assessing a claimant’s RFC, before proceeding to steps four and five of the 28 five-step sequential process, the Court addresses this issue first. 1 1. Plaintiff’s Administrative Hearing Testimony 2 Plaintiff testified that she has a tenth-grade education. (AR 65.) She is living 3 with her daughter. (AR 72.) She receives 74 hours per month of in-home support 4 services. (AR 73.) The in-home support care provider helps Plaintiff with bathing, 5 combing hair, doing laundry, and going to the market. (AR 72-73.) Plaintiff does 6 not go to the market. (Id.) Plaintiff will wash dishes “once in a while” but will take 7 a break if there are too many dishes. (AR 72.) She watches television. (Id.) Plaintiff 8 also attends her doctors’ appointments. (Id.) 9 Plaintiff testified that she cannot sit, stand, or walk for long periods of time 10 and has limited use of her arms. (AR 66.) Plaintiff was prescribed a walker and has 11 been using the walker for the past two years. (Id.) She attended the hearing with the 12 walker. (Id.) 13 Plaintiff suffers from pain in her mid and lower back. (AR 67.) On a good 14 day, Plaintiff would be able to sit in a chair for 10 or 15 minutes before having to get 15 up. (AR 67, 71.) Similarly, a good day would mean that Plaintiff is able to walk 16 without her walker for 15 to 20 minutes. (Id.) She would only be able to stand for 17 15 to 20 minutes without her walker. (Id.) Plaintiff testified that she would be unable 18 to stand or walk for longer periods of time with the use of the walker. (Id.) 19 Plaintiff testified that she has back pain which causes pain to shoot down her 20 right leg. (AR 67.) Her right leg “stays swollen as well.” (Id.) Plaintiff is unable to 21 balance on either foot. (Id.) She cannot use stairs or ladders. (AR 68.) She is not 22 able to kneel and stand back up. (Id.) Plaintiff also has pain in her left leg. (AR 70.) 23 She cannot use her feet to step on controls like pedals or clutches without being in 24 severe pain. (Id.) 25 As to her arms, Plaintiff testified that she cannot reach over her head with her 26 left arm, but she is able to reach forward with her left arm. (AR 68.) Plaintiff can 27 lift a total of four pounds using both arms. (AR 69.) Plaintiff was prescribed Norco 28 to help manage her pain. (AR 72.) In addition, Plaintiff was referred to physical 1 therapy on three occasions. (Id.) Plaintiff also uses a heat pad for pain relief. (Id.) 2 Plaintiff also suffers from anxiety and depression. (AR 69.) Plaintiff testified 3 that she has “crying spells,” where she just cries because she feels useless. (Id.) The 4 crying spells can last two seconds, or they can last all day. (Id.) She has medication 5 that she takes for body pain and mental health, however, the medication has side 6 effects of drowsiness, dizziness, and diarrhea. (AR 70.) 7 2. Plaintiff’s Function Report 8 Plaintiff submitted a Function Report in February 2015. (AR 385-93.) 9 Plaintiff explained that she cannot sit up for longer than 10 minutes without 10 experiencing pain or discomfort. (AR 385.) Plaintiff experiences high blood 11 pressure when she stands up, causing her head to hurt. (Id.) She is unable to lift her 12 arm. (Id.) Plaintiff also noted that her “legs give out” causing her to fall. (Id.) 13 Lastly, Plaintiff states that she has cancer which causes her to be tired and makes it 14 difficult for her to breathe when she is walking. (Id.) 15 On the days that Plaintiff is able to get out of bed, she cooks, goes to the store, 16 cleans, and showers. (AR 386.) Plaintiff can feed herself. (Id.) On the days that 17 she can cook she will make sandwiches, complete meals, or will heat up a frozen 18 dinner. (AR 387.) Plaintiff sometimes experiences difficulty lifting her leg to put on 19 pants, lifting her arms to comb her hair, and getting in and out of the bathtub. (AR 20 386.) She sometimes needs help to sit on the toilet. (Id.) Plaintiff needs either a 21 timer or someone to remind her to take her medication. (AR 387.) Plaintiff provides 22 care for her daughter. (AR 386.) She takes her to school, does her laundry, and cooks 23 for her. (Id.) Plaintiff states that she is always in some type of pain. (AR 392.) 24 If Plaintiff wakes up and is not in pain, she will complete all household chores 25 or will try to complete as much as possible before the pain makes her sit down. (AR 26 387.) It takes her approximately six hours to complete but she finds that she needs 27 help or encouragement to complete. (Id.) Plaintiff explains that if she is unable to 28 do housework it is because the work strains her back. (AR 388.) 1 Plaintiff goes outside about once a week. (AR 388.) She drives. (Id.) 2 However, Plaintiff does not go out alone because she fears that she will fall or that 3 her legs will “go out on” her. (Id.) Plaintiff goes shopping for food three times a 4 month. (Id.) Each trip takes two hours. (Id.) She can pay bills, count change, handle 5 a savings account, and use a checkbook or money orders. (Id.) Plaintiff enjoys 6 swimming, reading, and playing video games. (AR 389.) She does these activities 7 twice a week. (Id.) However, if she is in pain from sitting, she cannot play video 8 games. (Id.) She talks on the phone daily but does not go anywhere. (Id.) She does 9 not like other people seeing that she is unable to walk. (AR 390.) 10 Plaintiff’s condition affects her ability to lift, squat, bend, stand, reach, walk, 11 sit, kneel, climb stairs, see, concentrate, remember, understand, follow instruction, 12 use hands, and get along with others. (AR 390.) Plaintiff can walk a quarter of a 13 mile before needing to rest 10 minutes. (Id.) She is unable to finish what she starts. 14 (Id.) She can follow written instructions very well but is unable to follow verbal 15 instructions because she gets confused. (Id.) She does not get along well with 16 authority figures and does not handle changes in her routine or stress well. (AR 391.) 17 Plaintiff also has a fear of falling and a fear of dropping dead at any moment. (Id.) 18 3. Third Party Function Report 19 On February 16, 2015, Plaintiff’s friend, William Caldwell, submitted a 20 function report regarding Plaintiff’s abilities. (AR 357-65.) At that time, he had 21 known Plaintiff for five years and explained that they spent a lot of time together. 22 (AR 357.) He describes that Plaintiff is unable to walk or sit up for long periods of 23 time and that she spends her days complaining about the pain. (AR 357-58.) Plaintiff 24 will also “half clean the kitchen.” (AR 358.) Plaintiff takes care of her child. (Id.) 25 Mr. Caldwell states that prior to her illness, Plaintiff was able to do “everything 26 needed for daily living.” (Id.) According to Mr. Caldwell, Plaintiff’s conditions 27 affect her sleep because she “toss[es] and turn[s] all night.” (Id.) He also states that 28 he helps Plaintiff to dress, helps her in and out of the tub, and that she sometimes 1 needs help onto and off the toilet seat. (Id. ) He notes that Plaintiff does not need to 2 be reminded to take care of her personal needs, but that he “constantly” has to tell 3 Plaintiff to take her medication. (AR 359.) She also needs to be reminded to go to 4 the doctor and needs someone to accompany her. (AR 361.) 5 Mr. Caldwell explains that Plaintiff’s cooking habits have changed since the 6 onset of her conditions but noted that she still prepares meals daily. (AR 359.) It 7 takes Plaintiff four hours to prepare meals. (Id.) According to Mr. Caldwell, Plaintiff 8 does not do any household chores because she is always in pain and cannot finish. 9 (AR 359-60.) Plaintiff needs encouragement and help to do household chores. (AR 10 360.) He states that Plaintiff goes outside once or twice per week, but she cannot go 11 alone because “she falls sometimes.” (Id.) Plaintiff can drive. (Id.) She shops for 12 food in stores four or five times per month. (Id.) Plaintiff’s ability to handle money 13 has not changed since her conditions began and she can pay bills, count change, 14 handle a savings account, and use a checkbook. (AR 360-61.) Plaintiff plays video 15 games, but not often. (AR 361.) Plaintiff is in “bed most of the time.” (Id.) Mr. 16 Caldwell notes that since Plaintiff started falling, she does not act the same. (AR 17 364.) Plaintiff is “snappy.” (AR 363.) Plaintiff complains about headaches and pain 18 throughout her body. (AR 364.) 19 As to Plaintiff’s social activities, Mr. Caldwell states that Plaintiff uses 20 Facebook every day. (AR 361.) Plaintiff has problems getting along with others 21 because she believes that everyone is “out to get her.” (AR 362.) Mr. Caldwell 22 informs that there have been no changes to Plaintiff’s social activities since her 23 conditions began. (Id.) Plaintiff does not get along well with authority figures. (AR 24 363.) She was terminated from her job with Agency One Insurance because of 25 problems getting along with other people. (Id.) She does not trust people. (Id.) She 26 does not handle stress or changes in routine well. ( Id.) Mr. Caldwell states that 27 Plaintiff “is very very very mean.” (AR 364.) 28 /// 1 Mr. Caldwell opines that Plaintiff is unable to lift, squat, bend, stand, reach, 2 walk, sit, kneel, talk, hear, see, climb stairs, concentrate, remember, complete tasks, 3 understand, follow instructions, use her hands, or get along with others because she 4 is always in pain. (AR 362.) Plaintiff cannot walk far before having to rest for five 5 minutes prior to continuing. (Id.) She uses a walker to walk. (AR 363.) Plaintiff 6 cannot pay attention for long and she does not finish what she starts. (AR 362.) She 7 is “okay” at following spoken instructions. (Id.) 8 4. Applicable Legal Standards 9 “In assessing the credibility of a claimant’s testimony regarding subjective 10 pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina 11 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d 12 586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has 13 presented objective medical evidence of an underlying impairment which could 14 reasonably be expected to produce the pain or other symptoms alleged.” Treichler v. 15 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (internal quotation 16 marks omitted) (quoting Lingenfelter, 504 F.3d at 1036). If so, and if the ALJ does 17 not find evidence of malingering, the ALJ must provide specific, clear and 18 convincing reasons for rejecting a claimant’s testimony regarding the severity of his 19 symptoms. Id. The ALJ must identify what testimony was found not credible and 20 explain what evidence undermines that testimony. Holohan v. Massanari, 246 F.3d 21 1195, 1208 (9th Cir. 2001). “General findings are insufficient.” Lester, 81 F.3d at 22 834. 23 5. Discussion 24 “After careful consideration of the evidence,” the ALJ found that Plaintiff’s 25 “medically determinable impairments could reasonably be expected to cause the 26 alleged symptoms,” but found that Plaintiff’s “statements concerning the intensity, 27 persistence and limiting effects of these symptoms are not entirely consistent with 28 the medical evidence and other evidence in the record.” (AR 30.) The ALJ relied on 1 the following reasons: (1) inconsistent statements; and (2) lack of supporting 2 objective medical evidence. (AR 67-70.) No malingering allegation was made, and 3 therefore the ALJ’s reasons must be “clear and convincing.” 4 a. Reason No. 1: Inconsistent Statements 5 Here, the ALJ found Plaintiff’s testimony “that her in-home support worker 6 must do all of her shopping for her,” was inconsistent with Plaintiff’s report that she 7 shopped with her daughter for a prom dress. (AR 35.) The ALJ also relied upon 8 inconsistencies found in Plaintiff’s statements to doctors, as noted in progress reports. 9 (AR 32, 35.) For example, Plaintiff reported in October 2016 that she “no longer 10 needed a walker, sometimes uses a cane, but otherwise does not even need a cane 11 and felt she was getting better.” (AR 35, citing AR 787-88 (“patient was seen for 12 follow-up reevaluation of total body pain and …. no longer walks with a walker, but 13 walks at certain circumstances with a cane, but otherwise does not with cane anymore 14 and feels it is getting better.”) Earlier in 2016, Plaintiff reported to her doctor that 15 “she was feeling better because she was taking Norco,” that she “had received 50% 16 pain relief with her current pain medication.” (AR 32, citing AR 604, 789.) 17 An ALJ may rely on “ordinary techniques of credibility evaluation, such as … 18 prior inconsistent statements concerning the symptoms.” Tommasetti v. Astrue, 533 19 F.3d 1035, 10039 (9th Cir. 2008) (citation omitted); see also Bray v. Comm’r, 554 20 F.3d 1219, 1227 (9th Cir. 2009) (affirming ALJ’s credibility determination based, in 21 part, on inconsistencies between claimant’s testimony about COPD symptoms and 22 her statements to doctors that her COPD was “fine” and she became wheezy only 23 when engaging in heavy exertion.”); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th 24 Cir. 2001) (affirming credibility determination based, in part, on comparisons 25 between claimant’s testimony and her prior answers to physicians). While “a single 26 discrepancy fails to justify the wholesale dismissal of a claimant’s testimony,” Popa 27 v. Berryhill, 872 F.3d 901, 906-07 (9h Cir. 2017), the ALJ cited to several 28 inconsistencies between Plaintiff’s testimony and her statements to doctors, as well 1 as an inconsistency in her own testimony. “Where evidence may be susceptible to 2 more than one rational interpretation,” the ALJ’s decision should be upheld. Orn, 3 495 F.3d at 630 (citing Burch, 400 F.3d at 679). 4 With respect to the third-party statement of William Caldwell, Plaintiff alleges 5 that the ALJ improperly rejected the statement. (Pl’s Mem. 10.) The Commissioner 6 disagrees. (Def’s Mem. 10.) 7 The ALJ may discount the testimony of lay witnesses only if he provides 8 “reasons that are germane to each witness.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th 9 Cir. 1993); see also Molina, 674 F.3d at 1114. Here, the ALJ gave “little weight” to 10 Mr. Caldwell’s testimony for two reasons. (AR 34.) 11 First, the ALJ reasoned that Mr. Caldwell is “likely not medically trained” and 12 as such he is unable to make “exacting observations as to dates, frequencies, types 13 and degrees of medical signs and symptoms, or the frequency or intensity of unusual 14 moods or mannerisms.” (AR 34.) The Court is not persuaded by this line of 15 reasoning. “Lay witnesses are not required to have medical training, or to provide 16 exact details of their observations. That is what makes them ‘lay’ witnesses.” May 17 v. Berryhill, No. CV 17-4085-PLA, 2018 WL 2094347, at *8 (C.D. Cal. May 4, 18 2018). The Ninth Circuit has consistently held that lay testimony, including that of 19 friends and family is “competent evidence that an ALJ must take into account.” 20 Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); see also Diedrich v. Berryhill, 874 21 F.3d 634, 640 (9th Cir. 2017). To discount the “ ‘accuracy’ of a lay witness[] 22 statement because the witness is not medically trained would allow an ALJ to 23 routinely reject” lay witness statements for that reason alone. May, 2018 WL 24 2094347, at *8. Thus, this was not a germane reason to discount Mr. Caldwell’s 25 statements. 26 Second, the ALJ found that due to Mr. Caldwell’s relationship with Plaintiff, 27 Mr. Caldwell could not “be considered a disinterested third party witness.” (AR 34.) 28 However, a witness’s relationship to a plaintiff is not a “valid reason to discount his 1 observations. To do so ‘contradicts our insistence that, regardless of whether they 2 are interested parties, friends and family members [are] in a position to observe a 3 claimant’s symptoms and daily activities [and] are competent to testify as to his or 4 her condition.’” Diedrich, 874 F.3d at 640 (quoting Valentine, 574 F.3d at 694). 5 This reason is also insufficient to discount Mr. Caldwell’s statements. 6 Next, the Commissioner notes that “‘[i]nconsistency with medical evidence’ 7 is undoubtedly a valid and germane reason for discounting lay witness testimony.” 8 (Def’s Mem. 10, quoting Bayliss, 427 F.3d at 1218.) The Court is unpersuaded that 9 the ALJ discounted Mr. Caldwell’s testimony because it was inconsistent with the 10 medical evidence. The ALJ noted that Mr. Caldwell’s “statements are not entirely 11 inconsistent with the medical evidence discussed above.” (AR 34.) The ALJ instead 12 gives “little weight” to Mr. Caldwell’s statements based on Mr. Caldwell’s lack of 13 medical training and his relationship with Plaintiff. (Id.) 14 For the reasons explained above, the Court finds that the ALJ erred in 15 evaluating Mr. Caldwell’s statements. 16 The Commissioner argues that “[e]ven if the ALJ did not sufficiently explain 17 his rejection of Mr. Caldwell’s testimony, this would be no more than harmless 18 error.” (Def’s Mem. 10-11.) Plaintiff contends that Mr. Caldwell’s statements in the 19 function report do not “mirror” Plaintiff’s complaints, but rather that Mr. Caldwell 20 informs that Plaintiff believes “everybody is out to get her” and that Plaintiff is “very, 21 very mean.” (Pl’s Mem. 10.) According to Plaintiff, these statements are of 22 significance because the jobs identified by the ALJ all require social interaction. (Id.) 23 The Commissioner counters that Plaintiff herself stated “she had problems getting 24 along with others.” (Def’s Mem. 11, citing AR 390.) 25 An ALJ’s error is harmless so long as it is “inconsequential to the ultimate 26 nondisability determination.” Molina, 674 F.3d at 1115. “[W]here the ALJ’s error 27 lies in a failure to properly discuss competent lay testimony favorable to the claimant, 28 a reviewing court cannot consider the error harmless unless it can confidently 1 conclude that no reasonable ALJ, when fully crediting the testimony, could have 2 reached a different determination.” Stout v. Commissioner, Soc. Sec. Admin., 454 3 F.3d 1050, 1056 (9th Cir. 2006). The ALJ’s error is harmless if the statements made 4 by the lay witness do “not describe any limitations beyond those [claimant] herself 5 described” and the ALJ properly rejected the claimant’s testimony regarding those 6 limitations. Molina, 674 F.3d at 1121-22; see also Sievers v. Berryhill, 734 F. App’x 7 467, 470-71 (9th Cir. 2018). 8 Here, the statements made by Mr. Caldwell are sufficiently similar to the 9 statements offered by Plaintiff. In her function report, Plaintiff stated that she had 10 been fired or laid off due to problems getting along with others because she “felt 11 picked on” and “felt they didn’t want to see [her] do well.” (AR 391.) She also noted 12 that she has problems getting along with her family, friends, and neighbors because 13 she “thinks they steal[] or move [her] stuff.” (AR 390.) In the function report 14 prepared by Mr. Caldwell, he states that Plaintiff thinks everyone is “out to get her.” 15 (AR 362.) Furthermore, Mr. Caldwell describes Plaintiff as being mean. While, 16 Plaintiff does not describe herself as mean, Plaintiff has been found to have an 17 irritable affect by her physicians. (See AR 507, 649.) The Court agrees with the 18 Commissioner that the statements offered by Mr. Caldwell do not describe any 19 limitations beyond those described by Plaintiff. As a result, the Court finds that the 20 ALJ’s failure to properly consider Mr. Caldwell’s statements constitutes harmless 21 error. 22 With respect to the assistance Plaintiff receives from In-Home Support 23 Services4 (“IHSS”), Plaintiff argues that the ALJ failed to “provide any analysis of 24 4 “In–Home Support Services is a state-funded program administered by counties that 25 provides assistance to aged, blind, and disabled individuals so they can safely remain in their homes.” Yang v. Colvin, No. CV 14-2138-PLA, 2015 WL 248056, at *7 n. 26 13 (C.D. Cal. Jan. 20, 2015) (citing In–Home Support Services Program, California 27 Department of Social Services, http://www.cdss.ca.gov/agedblinddisabled/pg1296.htm); see also Cal. Welf. & Inst. 28 Code § 12300(a) (provides services to those “unable to perform the services 1 how one agency finds [Plaintiff] so disabled” that it provides in-home support, but 2 “another government agency says she can perform light work.” (Pl’s Mem. 9; Pl’s 3 Reply 4-5.) The Commissioner counters that there is no evidence in the record 4 showing the decision to award in-home support, and moreover, that another agency’s 5 decision is not binding. (Def’s Mem. 9.) 6 Plaintiff cites McCartey v. Massanari, 298 F.3d 1078, 1076 (9th Cir. 2002), in 7 support of her proposition that the ALJ erred by not giving “great weight” to IHSS’s 8 determination that Plaintiff was entitled to in-home support. (Pl’s Reply 4.) This 9 case is inapposite. In McCartey, the Ninth Circuit found that the ALJ “must 10 ordinarily give great weight to a [Department of Veteran Affairs (“VA”)] 11 determination of disability” unless the ALJ provides “persuasive, specific, valid 12 reasons” for assigning the VA’s determination less weight. McCartey, 298 F.3d at 13 1076. The Ninth Circuit reasoned that “great weight” should be given “because of 14 the marked similarity between [the] two federal disability programs.” Id. Of those 15 similarities, most notable is the fact that the “programs serve the same governmental 16 purpose–providing benefits to those unable to work because of a serious disability.” 17 Id. Here, the determination was made by IHSS, a state funded and county run 18 program, to provide Plaintiff with in-home support, not a federal agency with marked 19 similarity. Plaintiff fails to point to any case law that would suggest McCartey was 20 meant to apply to any government agency disability determination. The Court finds 21 that the ALJ was not required to assign IHSS’s decision to provide Plaintiff with in- 22 home support “great weight.” 23 b. Reason No. 2: Lack of Objective Medical Evidence 24 The lack of supporting objective medical evidence cannot form the sole basis 25 for discounting testimony, but it is a factor that the ALJ may consider in making a 26 credibility determination. Burch, 400 F.3d at 681; Rollins v. Massanari, 261 F.3d 27 themselves and who cannot safely remain in their homes or abodes of their own 28 choosing unless these services are provided”) 1 853, 857 (9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2)). 2 With respect to Plaintiff’s anxiety and depression, the ALJ noted that a January 3 2015 psychiatric examination found Plaintiff to be “alert, oriented, cooperative with 4 exam, had good eye contact, a labile mood, a sad affect, and some short-term memory 5 impairment.” (AR 30; see AR 515.). In February 2015, Plaintiff followed up with a 6 licensed clinical social worker (“LCSW”) who found Plaintiff to be depressed. (AR 7 31, 503-04.) The LCSW reported that Plaintiff’s mood was “okay,” she had a 8 euthymic and sad affect, average grooming, appropriate eye contact, cooperative 9 interaction, average intellectual functioning, organized thought process, and intact 10 attention. (AR 503.) However, the LCSW noted that Plaintiff’s insight and 11 judgement was impaired. (Id.) Plaintiff was found to respond “well to active 12 listening, support, and encouragement.” (AR 504.) The LCSW found Plaintiff 13 responsive to rapport building and was able to express and process her emotions 14 appropriately. (Id.) Plaintiff was referred to follow-up with individual therapy. (Id.) 15 The following month a psychiatric examination found Plaintiff to be “alert, oriented, 16 cooperative with exam, good eye contact,” good judgement and insight, clear speech 17 but depressed mood and irritable affect. (AR 506-07.) A July 2016 depression 18 screening found Plaintiff to be severely depressed. (AR 647.) The ALJ did note that 19 Plaintiff had an increase in depression and anxiety in April 2017. (AR 33; see AR 20 916.) However, the following month Plaintiff was found to be feeling better but still 21 had a depressed mood. (AR 915.) 22 With respect to Plaintiff’s back and leg pain, the ALJ noted that a December 23 17, 2014 physical examination found Plaintiff’s back was “normal” with a full range 24 of motion but had pain with movement. (AR 30, 523.) Plaintiff was diagnosed with 25 hypertension and back pain. (AR 523.) A subsequent x-ray of Plaintiff’s cervical 26 spine found “no fractures, dislocations or destructive lesions” and “no abnormalities 27 of the paraspinous soft tissues.” (AR 496.) The x-ray did find mild scoliosis, 28 multilevel mild spondylitic spurring, and cervical degenerative disc disease at C5 to 1 C7. (Id.) A lumbar spine x-ray also noted normal stature and alignment of the 2 vertebrae, no fractures or lesions, but did note “small traction spurs” and found mild 3 spondylosis of the lumbar spine. (AR 498.) 4 The ALJ also noted that Plaintiff sought treatment on January 8, 2015, 5 complaining of “bilateral leg pain” and stated that she was “constantly falling.” (AR 6 30; see AR 514-17.) A neurological exam found that Plaintiff was alert and oriented, 7 and had normal gait, strength, tone and reflexes. (AR 515.) A musculoskeletal 8 examination found Plaintiff had crepitus knees, left knee tenderness and swelling, as 9 well as right knee tenderness and swelling. (Id.) 10 However, the ALJ fails to discuss Plaintiff’s January 22, 2015 follow-up 11 appointment in which a musculoskeletal examination found Plaintiff had an 12 “[a]ntalcic gait,” crepitus knees, left knee tenderness and swelling, as well as right 13 knee tenderness and swelling. (AR 512.) Plaintiff was diagnosed with polyarthralgia 14 and lymphocytic leukemia. (Id.) Similarly, a February 25, 2015 neurological exam 15 found Plaintiff to be alert and oriented, but found Plaintiff had “diminished sensation 16 [in] lower extremities to knees,” as well as decreased strength in her right and lower 17 extremities. (AR 509.) Plaintiff was diagnosed with multiple sclerosis, lymphocytic 18 leukemia, and insomnia secondary to depression with anxiety. (Id.) 19 The ALJ did note that Plaintiff underwent an orthopedic consultation in April 20 2015. (AR 31, 525.) The musculoskeletal examination found no evidence of 21 swelling, effusion, erythema, warmth, or deformity of the shoulders, elbows, and 22 wrists. (Id.) The examination did find a limited range of motion in her shoulders, 23 hips, and thoracolumbar spine. (AR 528.) A neurological exam found Plaintiff had 24 “normal strength . . . in all major muscle groups.” (AR 530.) Plaintiff was found to 25 have myoligamentous strain to her cervical spine, lumbosacral spine, right and left 26 shoulder, and knees. (Id.) Plaintiff had normal toes. (Id.) Plaintiff did “not use any 27 assistive device for ambulation” but had a slow gait. (AR 528.) 28 /// 1 The ALJ also noted a May 2015 magnetic resonance imaging scan (“MRI”) of 2 Plaintiff’s thoracic spine, which found “normal kyphosis of the thoracic spine,” 3 “vertebral bodies are normal in height and signal intensity,” “thoracic cord is normal 4 in signal intensity and caliber at all levels,” and normal paravertebral soft tissues, 5 disk height and margin of the disk. (AR 544.) A cervical spine MRI found 6 straightening of the cervical spine, but normal vertebral bodies, paravertebral soft 7 tissues, cervical cord, and craniocervical junction. (AR 546.) There was a 1 mm 8 posterior disk bulge at C2-C3, a 1-2 mm posterior central broad-based disk protrusion 9 and mild narrowing of the midline thecal sac at C4-C5, a 1 mm posterior disk 10 osteophyte complex and mild narrowing at C5-C6, a 1mm posterior disk osteophyte 11 complex and moderate to sever disk narrowing with disk desiccation at C6-C7. (AR 12 547.) 13 In addition, the ALJ discussed a June 15, 2015 medical visit in which Plaintiff 14 was found to have a “full range of motion without pain” in her neck, grossly normal 15 cranial nerves, normal appearance tone and strength of muscles, normal reflexes, 16 stable gait, and normal spine with “no limitation of movement or defect in curvature, 17 lumbar flexion, and full extension. (AR 535.) The physician’s diagnosis was that 18 Plaintiff suffered from multiple sclerosis and numbness. (Id.) Plaintiff’s physician 19 noted that Plaintiff has multiple sclerosis “but not all her symptoms are due to MS. 20 Paranoia, depression, chronic pain [are] not due to MS.” (AR 534.) 21 The ALJ also noted Plaintiff’s August 2015 lumbar spine MRI. (AR 32.) The 22 MRI showed “circumferential disk bulging and mild to moderate right foraminal 23 narrowing,” as well as bilateral facet arthropathy. (AR 816.) The MRI showed “disk 24 height loss posteriorly and circumferential disk bulging.” (Id.) The ALJ noted that 25 an August 17, 2015 physical examination of Plaintiff showed Plaintiff’s neck had a 26 full range of motion without pain, normal tone and strength of muscles, normal spine 27 with no limitations, and a stable gait. (AR 32, 792.) She was diagnosed with multiple 28 sclerosis, chronic pain, and “mental health issues.” (AR 793.) 1 On February 1, 2016, Plaintiff had an electromyography (“EMG”) study on 2 her left arm and right leg. (AR 598-99.) The study rendered a normal EMG. (AR 3 599.) 4 The ALJ also pointed to March 2016 pain management notes which showed 5 Plaintiff reported 30% overall pain relief, but Plaintiff still complained of lower back 6 pain. (AR 32, citing AR 613.) The ALJ noted that Plaintiff’s April 17, 2016 MRI of 7 her shoulder found a “moderate to high-grade predominately articular sided 8 supraspinatus tendon tear near the footprint, with undersurface tendon retraction of 9 approximately 16 mm.” (AR 33, citing AR 812.) The tear involved “70% of the 10 tendon thickness with some bursal sided fibers still intact.” (AR 812.) 11 Also, of note, in September 2016 Plaintiff’s progress notes state that Plaintiff 12 reported “feeling better because she is taking Norco now.” (AR 789.) Similarly, on 13 September 15, 2016, Plaintiff reported 50% pain relief on her current medications. 14 (AR 604.) In addition, the ALJ notes that Plaintiff’s “cervical myofasciitis, left 15 frozen shoulder, lateral epicondylitis, and lumbosacral myofasciitis had all 16 improved.” (AR 33, citing 789.) Similarly, the ALJ discussed a September 29, 2016 17 examination, noting that Plaintiff’s physician found decreased tenderness, less 18 symptoms, and overall improvement. (AR 33, 791.) The physician, however, also 19 noted “[l]eft shoulder range of motion is 75%” and found that if Plaintiff’s right leg 20 pain does not end, he will recommend a steroid injection and consider surgery. (Id.) 21 The ALJ also discussed October 2016 progress notes, which he stated indicate 22 that Plaintiff “no longer needed a walker, sometimes uses a cane, but otherwise does 23 not even need a cane and felt she was getting better.” (AR 33, citing 787-88.) The 24 ALJ correctly noted that Plaintiff’s left shoulder rotator cuff tear, facet syndrome of 25 L4-L5 and L5-S1, scoliosis of spine, right-sided sciatica, and right iliotibial band 26 syndrome were improving. (AR 33.) 27 The ALJ then discussed a May 2017 physical examination. (AR 34.) The ALJ 28 noted that Plaintiff’s physician found Plaintiff’s neck to be normal with no tenderness 1 but had “some pain tenderness and spasms in her lower back.” (AR 34, citing AR 2 847-48.) Plaintiff reported seven out of ten in pain. (AR 847.) 3 The Court finds that the ALJ thoroughly considered Plaintiff’s medical records 4 (see AR 30-35) and found that the records did not support Plaintiff’s allegations of 5 disabling symptoms and limitations (see AR 30). See Reddick, 157 F.3d at 725. 6 Throughout the records are examination notes and reports showing normal results, 7 all of which the ALJ was permitted to rely on in assessing the credibility of Plaintiff’s 8 testimony. See Garza v. Astrue, 380 F. App’x 672, 674 (9th Cir. 2010) (finding that 9 an ALJ properly considered a claimant’s normal exam findings when noting a lack 10 of objective medical evidence to support the claimant’s allegations); Margolis v. 11 Berryhill, No. CV 17-5047 SS, 2018 WL 3129775, at *10 (C.D. Cal. June 22, 2018) 12 (holding that ALJ may rely on normal and unremarkable examinations in discounting 13 a claimant’s subjective testimony). While clearly other evidence in the records shows 14 a history of various medical problems, the ALJ was allowed to weigh the multiple 15 normal examination results in evaluating Plaintiff’s credibility. Where, as here, the 16 evidence might be susceptible to more than one rational interpretation, the ALJ’s 17 decision should be upheld. See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 18 (9th Cir. 2008) (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see 19 Robbins, 466 F.3d at 882 (“If the evidence can support either affirming or reversing 20 the ALJ’s conclusion, we may not substitute our judgment for that of the ALJ.”). 21 c. Conclusion 22 The Court finds that each of the ALJ’s reasons for discounting Plaintiff’s 23 subjective symptom testimony, is a clear and convincing reason, supported by 24 substantial evidence, for discounting Plaintiff’s testimony. Accordingly, the ALJ 25 properly evaluated Plaintiff’s subjective complaints. 26 B. The Additional Evidence Presented Warrants Remand 27 After the ALJ’s unfavorable decision on August 16, 2017, Plaintiff submitted 28 additional medical evidence to the Appeals Council. (See AR 15-20, 44-50, 54-55.) 1 These records are dated between May 30, 2017 and November 15, 2017. (See id.; 2 AR 2.) Plaintiff contends that in light of the evidence submitted to the Appeals 3 Council, the ALJ’s decision is no longer supported by substantial evidence. (Pl’s 4 Mem. 5-8.) The Commissioner counters that the additional evidence submitted to 5 the Appeals Council does “not change the fact that substantial evidence supports the 6 ALJ’s decision.” (Def’s Mem. 2-4.) 7 The Administrative Record shows that the Appeals Council found that the 8 additional evidence provided “does not show a reasonable probability that it would 9 change the outcome of the decision.” (AR 2.) The Appeals Council did not explicitly 10 state that it considered the additional evidence. (See id.) However, because the 11 Appeals Council concluded that the additional evidence provided would not change 12 the outcome, the Appeals Council necessarily considered the evidence in order to 13 make the finding. See Reyes v. Comm’r of Soc. Sec. Admin., No. CV-17-08192-PCT- 14 SMB, 2019 WL 2098755, at *3 (D. Ariz. May 14, 2019); Mayeda-Williams v. 15 Comm’r of Soc. Sec. Admin., No. 1:18-CV-0009-HRH, 2019 WL 157918, at *5 (D. 16 Alaska Jan. 10, 2019). 17 1. Legal Standard 18 When the Appeals Council considers new evidence in denying review of the 19 ALJ’s decision, this Court considers on appeal both the ALJ’s decision and the 20 additional material submitted to the Appeals Council. Ramirez v. Shalala, 8 F.3d 21 1449, 1452 (9th Cir. 1993); see Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 22 1157, 1163 (9th Cir. 2012) (“[W]e have routinely considered evidence submitted for 23 the first time to the Appeals Council to determine whether, in light of the record as a 24 whole, the ALJ’s decision was supported by substantial evidence.”). When a 25 claimant presents new evidence to the Appeals Council, the Court must evaluate 26 whether ALJ’s decision is supported by substantial evidence, in light of the entire 27 record, including the newly presented evidence. Warner v. Astrue, 859 F.Supp.2d 28 1107, 1115 (C.D. Cal. April 26, 2012). If there is a “substantial likelihood the ALJ’s 1 consideration of the additional evidence submitted to the Appeals Council will 2 materially alter the ALJ’s disability analysis,” remand is warranted. Id. at 1117. As 3 discussed in Warner, “it does not matter whether the ALJ’s decision when made was 4 supported by substantial evidence and was free from legal error on the record then 5 existing, if later submitted evidence materially undermines the ALJ’s decision.” Id. 6 at 1115 n.10 (emphasis in original). 7 2. Additional Evidence Provided 8 Here, the additional records provided to the Appeals Council, but not the ALJ, 9 include (1) a June 17, 2017 MRI (“June 2017 MRI”); (2) an August 23, 2017 letter 10 from George Wang, M.D., and corresponding medical records; (3) medical notes 11 pertaining to Plaintiff’s November 15, 2017 visit to Thomas McCloy, M.D.; and (4) 12 a November 14, 2017 function assessment completed by Dr. Wang. (See Pl’s Mem. 13 5-8; Def’s Mem. 2-4; AR 2, 15-17, 18-20, 45-46, 54-55.) 14 On August 23, 2017, Dr. Wang, Plaintiff’s neurologist, sent a letter to Ajay 15 Patel, M.D., a physician at AppleCare Physicians Group. (AR 54; see AR 846.) In 16 that letter Dr. Wang opined that “a lesion in the cervical spinal cord of the right side 17 . . . is likely causing some of her muscle spasticity on the right side.” (AR 54.) Dr. 18 Wang based this opinion on a “recent cervical spine MRI.” (Id.) While Dr. Wang 19 does not provide the date of the MRI, the record suggests that the MRI he is 20 referencing is the June 2017 MRI. (See id.; AR 45-46.) The MRI of Plaintiff’s 21 cervical spine showed a “focal lesion . . . in the posterior lateral aspect of the right 22 side of the spinal cord at the C4 level . . . measuring approximately 3 x 8 mm.” (AR 23 45-46.) The MRI also resulted in a finding of “[m]ultilevel degenerative disease and 24 facet arthritis” in Plaintiff’s cervical spine. (AR 45.) In the letter, Dr. Wang found 25 that the spinal cord lesion was “unfortunately permanent.” (AR 54.) Dr. Wang 26 suggested that Plaintiff rely on tizanidine but “decrease or discontinue 27 cyclobenzaprine” and that he would be “continuing [Plaintiff’s use] of Copaxone to 28 prevent future flares.” (Id.) 1 In November 2017, Dr. Wang prepared a “physical medical source statement,” 2 similar to that of a function report. (AR 18-20.) Dr. Wang found Plaintiff to suffer 3 from multiple sclerosis and degenerative disc disease. (AR 18.) He noted Plaintiff’s 4 symptoms include “fatigue, trouble concentrating, weakness in legs, [and] low back 5 pain.” (Id.) Dr. Wang found that Plaintiff showed “mild upper arm and moderate 6 leg weakness,” “[d]ecreased sensation in lower extremities,” and “unsteady gait.” 7 (Id.) Dr. Wang opined that Plaintiff could walk for half a block without rest or severe 8 pain and would need to get up after 20 minutes of sitting. (Id.) According to Dr. 9 Wang, Plaintiff would need to include unspecified periods of walking around during 10 an eight-hour work day. (AR 19.) Similarly, Plaintiff would need to take 11 unscheduled breaks every 15 minutes for “unknown” periods of time before returning 12 to work. (Id.) He also noted that Plaintiff would need to use a cane or other device 13 to engage in standing or walking. (Id.) Plaintiff can occasionally lift and carry less 14 than 10 pounds but could rarely lift and carry 10 pounds and could never lift and 15 carry 20 or 50 pounds. (Id.) Plaintiff can occasionally look down, turn her head, 16 look up, or twist. (Id.) However, Dr. Wang opined that Plaintiff could never stoop, 17 crouch, or climb ladders. (Id.) Plaintiff can rarely climb stairs. (Id.) Dr. Wang notes 18 that Plaintiff was likely to have good and bad days, and as a result Plaintiff would be 19 absent from work more than four days per month. (AR 20.) As a result of Plaintiff’s 20 conditions, Dr. Wang informs that Plaintiff may be limited from driving, she will 21 need to avoid hot temperatures as a result of her multiple sclerosis and will need to 22 avoid cold temperatures as to avoid exacerbating Plaintiff’s arthritis. (Id.) 23 Lastly, Dr. McCloy examined Plaintiff on November 15, 2017. (AR 15.) 24 Plaintiff reported that “[s]he has times when she feels quite good but it will change 25 quickly and she will suddenly feel very tired.” (Id.) Dr. McCloy’s examination of 26 Plaintiff rendered normal results. (AR 16.) 27 /// 28 /// 1 3. Plaintiff’s Contentions 2 Plaintiff contends that the June 2017 MRI, as well as the letter and function 3 report prepared by Dr. Wang demonstrate the severity and progression of Plaintiff’s 4 multiple sclerosis. (Pl’s Mem. 6.) The additional records, Plaintiff argues, 5 undermine the ALJ’s determination because the ALJ gave partial weight to a 6 consultative examiner who failed to examine “any records” and was not aware of 7 Plaintiff’s multiple sclerosis diagnosis. (Pl’s Mem. 6.) Similarly, Plaintiff argues 8 that the ALJ erred in giving “great weight to the non-examining state agency doctors 9 that evaluated the case in April or August 2015” who did not review any records after 10 August 2015. (Pl’s Mem. 8.) 11 4. Commissioner’s Contentions 12 The Commissioner contends that the additional evidence does not alter “the 13 fact that substantial evidence supports the ALJ’s decision.” (Def’s Mem. 4.) 14 First, the Commissioner points to the fact that Dr. Wang’s letter was sent a 15 week after the ALJ’s decision and argues that the letter does not suggest that Plaintiff 16 had any physical or mental limitations prior to the ALJ’s decision. (Def’s Mem. 4.) 17 Similarly, the Commissioner argues that the function report prepared by Dr. Wang 18 “at best, suggests further deterioration of Plaintiff’s condition” and “is not relevant 19 to whether Plaintiff was disabled.” (Def’s Mem. 5.) 20 Next, the Commissioner notes that “Dr. Wang’s findings are undermined by a 21 contemporaneous treatment note from Dr. McCloy” where Plaintiff reported she 22 “feels quite good” but “will also suddenly feel very tired.” (Def’s Mem. 5.) On 23 November 15, 2017, Dr. McCloy examined Plaintiff. (AR 15.) Plaintiff reported 24 that “[s]he has times when she feels quite good but it will change quickly and she 25 will suddenly feel very tired.” (Id.) Dr. McCloy’s examination of Plaintiff rendered 26 normal results. (AR 16.) The Commissioner contends that the lack of abnormal 27 results, “strongly undermines the persuasiveness of Dr. Wang’s assessment.” (Def’s 28 Mem. 4-5.) 1 5. Analysis 2 The Court reviews the ALJ’s decision in light of the entire record, including 3 the additional evidence provided to the Appeals Council in the first instance. For the 4 reasons explained below, the Court finds that, in light of the additional evidence, the 5 ALJ’s decision is not supported by substantial evidence. 6 First, the ALJ noted that Plaintiff’s multiple sclerosis diagnosis constituted a 7 severe impairment (AR 26-27) but found that the improvement of Plaintiff’s 8 symptoms warranted a less restrictive RFC finding. (See AR 30-34.) Plaintiff argues 9 that the additional evidence submitted to the Appeals Council undermines the ALJ’s 10 decision because it shows the severity and progression of Plaintiff’s multiple 11 sclerosis. (Pl’s Mem. 6; Pl’s Reply 3.) The Court agrees. 12 Courts have routinely held that additional evidence documenting the 13 worsening of claimant’s condition warrants remand. See, e.g., Warner, 859 F. Supp. 14 2d at 1116-17 (finding that remand was warranted where additional evidence showed 15 the worsening of claimant’s depression and anxiety); Colmenero v. Berryhill, No. 16 1:16-cv-00649-GSA, 2018 WL 3689319, at *12 (E.D. Cal. Aug. 3, 2018) (holding 17 that new scans showing progression of claimant’s lymphoma warranted remand). 18 This is because, “[w]hen a claimant’s condition is deteriorating, the most recent 19 evidence is most probative.” See Colmenero, 2018 WL 3689319, at *12 (citing Stone 20 v. Heckler, 761 F.2d 530, 532 (9th Cir. 1982)). 21 The additional evidence Plaintiff provided to the Appeals Council documented 22 a new lesion in Plaintiff’s cervical spine, and the lesion was noted to be compatible 23 with a demyelinating lesion. (AR 45-46.) Dr. Wang’s letter to Dr. Patel opines that 24 the lesion is permanent and is likely causing spasticity. (AR 54.) The MRI along 25 with Dr. Wang’s letter documents a progression of Plaintiff’s condition that was not 26 previously before the ALJ. Similarly, Plaintiff’s June MRI along with Dr. Wang’s 27 opinion, directly refutes the ALJ’s finding that Plaintiff’s symptoms were improving. 28 See Prather v. Colvin, No. 5:12-CV-171-FL, 2013 WL 4806958, at *7-*8 (E.D. N.C. 1 Sept. 9, 2013) (finding that an MRI documenting new lesions is relevant as to whether 2 claimant’s condition was improving and supports claimant’s claims that her 3 condition was not improving). The additional evidence warrants remand because it 4 “sheds additional light on the nature, extent, and persistence” of Plaintiff’s disability. 5 See Beltz v. Berryhill, 679 F. App’x 576, 577 (9th Cir. 2017). Because, the additional 6 evidence undermines the ALJ’s decision and provides additional information as to 7 the progression of Plaintiff’s ongoing condition, there is a substantial likelihood that 8 the evidence would materially alter the ALJ’s decision, and, thus, remand is 9 warranted. 10 Second, as noted by Plaintiff, the ALJ relied on medical opinions from several 11 sources when determining Plaintiff’s RFC. (See AR 31, 34-35; Pl’s Mem. 6, 8.) The 12 ALJ gave partial weight to the opinion of orthopedic consultative examiner Frank 13 Guellich, M.D., finding that claimant would be able to perform light exertional work. 14 (AR 31.) The ALJ discounted Dr. Guellich’s opinion to the extent the opinion limited 15 Plaintiff “to only occasional handling, fingering, and feeling.” (Id.) Plaintiff claims 16 that the ALJ gave great weight to non-examining state agency doctors. (Pl’s Mem. 17 8.) The ALJ gave great weight only to the opinions of Tawnya Brode, Psy.D., and 18 K. Gregg, M.D., from Disability Determination Services (“DDS”). (See AR 34.) 19 Drs. Brode and Gregg reviewed Plaintiff’s mental status not her physical condition. 20 (See id.) The ALJ, however, gave only partial weight to I. Herman, M.D., and A. 21 Pan, M.D., from DDS. (Id.) Drs. Herman and Pan examined Plaintiff’s physical 22 functions and opined that Plaintiff was limited to less than light work. (Id.) In 23 discounting the opinions of Drs. Herman and Pan, the ALJ specifically recognized 24 that they did not have the benefit of reviewing all the medical evidence in the record. 25 (AR 35.) 26 When the ALJ relies on a medical opinion of a physician that did not have the 27 benefit of the claimant’s medical records, additional evidence provided to the 28 Appeals Council may require remand. See Warner, 859 F. Supp. 2d at 1116-17. In 1 Warner, the court found that remand was necessary where the ALJ had “relied on the 2 medical expert’s opinion, which adopted the consultative examiner’s opinion from 3 an interview” of the claimant, but did so “without the benefit of any of [claimant’s] 4 medical records.” Id. There, the claimant submitted additional evidence to the 5 Appeals Council, including records of a psychiatric hospitalization prior to the ALJ’s 6 adverse finding and psychiatric hospitalization after the ALJ’s decision. Id. at 1112. 7 The additional evidence also included a medical work restriction questionnaire, dated 8 nearly two months after the ALJ’s decision, from claimant’s psychiatrist, whom had 9 been treating claimant on a monthly basis for three years. Id. at 1110, 1112. There, 10 the court found that given the ALJ’s reliance on the medical expert’s opinion, when 11 neither the medical expert nor the consultative examiner had access to the records 12 presented to the Appeals Council, “[t]he circumstances of the case indicate[d] that 13 there is a substantial likelihood that the ALJ’s consideration of the additional 14 evidence submitted to the Appeals Council will materially alter the ALJ’s disability 15 analysis.” Id. at 1117. 16 Here, Plaintiff submitted to the Appeals Council records that were not before 17 Drs. Guellich, Herman, and Pan. (See AR 85-87, 102-04, 119-21, 134-36, 525-32.) 18 The medical opinions were rendered in 2015, two years prior to the ALJ’s 19 determination. (See id.) As such, neither physician had the opportunity to review 20 Plaintiff’s medical records after 2015. Because the opinions of Drs. Guellich, 21 Herman, and Pan were made so early, their opinions do not include information 22 regarding the progression of Plaintiff’s condition during the relevant period. Of 23 particular note, is Dr. Guellich’s failure to document in his examination report 24 Plaintiff’s multiple sclerosis diagnosis (see AR 526), as well as Dr. Guellich’s 25 cervical spine examination which noted that there was “no evidence of increased 26 muscle tone or muscle spasm. Range of motion, carried out actively and voluntarily, 27 demonstrates no discernible limitation in any plane.” (AR 529). If Dr. Guellich did 28 not recognize that Plaintiff suffered from multiple sclerosis, it is difficult to see how 1 he could have formulated an opinion as to the severity and progression of Plaintiff’s 2 condition. In finding Plaintiff’s RFC, the ALJ discounted the opinions of Drs. 3 Guellich, Herman, and Pan particularly because there was new evidence in the record 4 that the doctors had not been able to review. (AR 35.) In light of the additional 5 evidence it is reasonable to infer that the ALJ may have further discounted these 6 medical opinions because the evidence offered additional information not present 7 when they formulated their opinion. Thus, there is a substantial likelihood that the 8 additional evidence provided to the Appeals Council would alter the weight given to 9 those medical opinions. If the ALJ were to give the opinions more or less weight in 10 light of the new evidence, this would materially alter the ALJ’s decision. 11 Finally, in determining Plaintiff’s RFC, the ALJ relied on the functional 12 limitations set forth by Drs. Guellich, Herman, and Pan. The additional evidence 13 provided to the Appeals Council includes a function report which documents 14 functional limitations beyond those set forth by Drs. Guellich, Herman, and Pan. For 15 example, Dr. Wang notes that Plaintiff is unable to engage in occasional standing or 16 walking without a cane or assistive device, while Dr. Guellich notes that a device is 17 not necessary for ambulation. (See AR 19, 528.) Drs. Guellich, Herman, and Pan 18 each opine that Plaintiff is able to occasionally lift or carry 20 pounds and Plaintiff 19 can frequently lift or carry 10 pounds. (AR 102, 119, 531.) However, Dr. Wang 20 opines that Plaintiff can rarely lift or carry 10 pounds and could never lift or carry 20 21 pounds. (AR 19.) Similarly, Dr. Guellich opines that Plaintiff does not need to 22 periodically alternate sitting and standing to relieve pain or discomfort, while Dr. 23 Wang opines that Plaintiff would need a job that allows for shifting positions. (AR 24 19, 531.) Because the functional limitations described by Dr. Wang go beyond those 25 described by Drs. Guellich, Herman, and Pan, and ultimately relied on by the ALJ, 26 there is a substantial likelihood that, if Dr. Wang’s opinion were to be fully credited, 27 the ALJ’s decision may be materially altered. See Harvey v. Colvin, 2013 WL 28 3899282, at *4 (C.D. Cal. July 29, 2013) (finding that when an examining physician 1 assesses functional limitations beyond those specified in the medical opinions before 2 the ALJ and beyond the limitations found by the ALJ, the case must be remanded). 3 The Commissioner’s assertion that the date of the additional evidence 4 diminishes the relevance of the evidence presented to the Appeals Council is 5 unpersuasive. The fact that the records provided to the Appeals Council post-date 6 the ALJ’s decision does not on its own diminish the relevance of the documents in 7 evaluating Plaintiff’s disability claim. See Smith v. Bowen, 849 F.2d 1222, 1225 (9th 8 Cir. 1988) (“it is clear that reports containing observations made after that period for 9 disability are relevant to assess claimant’s disability. It is obvious that medical 10 reports are inevitably rendered retrospectively and should not be disregarded solely 11 on that basis.”) (internal citations omitted); see also Staley v. Massanari, 17 Fed. 12 App’x 609, 610 (9th Cir. 2001) (finding that new evidence may not be discounted 13 solely because it was sought out after an adverse ALJ decision). Here, the letter and 14 function report prepared by Dr. Wang reference Plaintiff’s treatment for multiple 15 sclerosis and degenerative disc disease. (AR 18-20.) Both conditions were 16 indisputably present during the period of disability and prior to the ALJ’s decision. 17 (See AR 24-37, 534-35, 792-93.) The additional records are relevant to assessing 18 Plaintiff’s disability claim. See Vaile v. Berryhill, No. 5:16-cv-00393-GJS, 2017 WL 19 2785331, at *3 (C.D. Cal. June 27, 2017) (finding that evidence that post-dates the 20 ALJ’s decision is relevant to assess disability when that evidence relates to treating 21 conditions that existed during the disability period,). Thus, remand is appropriate to 22 allow the ALJ the opportunity to consider the additional evidence provided to the 23 Appeals Council. 24 Similarly, the Commissioner’s contention that Dr. Wang’s findings are 25 undermined by Dr. McCloy’s treatment note is unpersuasive. (Def’s Mem. 4.) Dr. 26 Wang has been treating Plaintiff since at least June 2, 2017. (See AR 18, 55.) 27 Because the record shows that Dr. Wang saw Plaintiff more than once and prescribed 28 medication for Plaintiff, Dr. Wang is a treating physician. See Staley, 17 F. App’x at 1 610 (finding that because physician has seen claimant more than once, ran tests, and 2 prescribed medication, the physician was a treating physician). As a treating 3 physician, Dr. Wang’s opinion is entitled to greater weight than the opinion of a non- 4 treating physician. See Valentine, 574 F.3d at 692. Dr. McCloy is also a treating 5 physician. (See AR 15.) In his function report, Dr. Wang notes that Plaintiff has 6 good and bad days. (AR 54-55.) Similarly, Plaintiff reported to Dr. McCloy that 7 while she sometimes “feels quite good,” the feeling can “change quickly and she will 8 suddenly feel tired.” (AR 15.) Dr. McCloy notes that Plaintiff’s general appearance, 9 respiratory exam, and cardiovascular exam are normal, but renders a diagnosis of 10 multiple sclerosis, back pain, neutrophilic leukocytosis, and hypertension. (AR 16.) 11 Dr. Wang, however, primarily focuses his assessment on the effect of the lesion in 12 Plaintiff’s cervical spinal found by the June 2017 MRI. (See AR 18-20, 54.) Whether 13 Dr. McCloy’s treatment note undermines Dr. Wang’s assessment, or whether Dr. 14 McCloy’s notes outweigh the notes of Dr. Wang is not for this Court to decide, rather 15 it is the ALJ’s responsibility to resolve conflicts found in the medical evidence. See 16 Treichler, 775 F.3d at 1098 (“[W]e leave it to the ALJ to determine credibility, 17 resolve conflicts in testimony, and resolve ambiguities in the record.”); see also 18 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). 19 6. Conclusion 20 In sum, because there is a substantial likelihood that the additional evidence 21 provided to the Appeals Council would materially alter the ALJ’s disability analysis, 22 remand is warranted. 23 C. Remand for Further Administrative Proceedings 24 Because further administrative review could remedy the ALJ’s errors, remand 25 for further administrative proceedings, rather than an award of benefits, is warranted 26 here. See Brown-Hunter, 806 F.3d at 495 (remanding for an award of benefits is 27 appropriate in rare circumstances). Before ordering remand for an award of benefits, 28 three requirements must be met: (1) the Court must conclude that the ALJ failed to 1 provide legally sufficient reasons for rejecting evidence; (2) the Court must conclude 2 that the record has been fully developed and further administrative proceedings 3 would serve no useful purpose; and (3) the Court must conclude that if the improperly 4 discredited evidence were credited as true, the ALJ would be required to find the 5 claimant disabled on remand. Id. (citations omitted). Even if all three requirements 6 are met, the Court retains flexibility to remand for further proceedings “when the 7 record as a whole creates serious doubt as to whether the claimant is, in fact, disabled 8 within the meaning of the Social Security Act.” Id. (citation omitted). 9 Here, remand for further administrative proceedings is appropriate. See 10 Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) (finding that where the ALJ 11 has not had an opportunity to evaluate evidence, the appropriate remedy is remand). 12 On remand, the ALJ shall consider the additional evidence presented to the Appeals 13 Council in reassessing Plaintiff’s RFC. The ALJ shall then proceed through step four 14 and step five, if necessary, to determine what work, if any, Plaintiff is capable of 15 performing. 16 V. CONCLUSION 17 IT IS ORDERED that Judgment shall be entered REVERSING and 18 REMANDING the decision of the Commissioner denying benefits. 19 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 20 Order and the Judgment on counsel for both parties. 21 DATED: December 23, 2019 /s/ 22 ROZELLA A. OLIVER 23 UNITED STATES MAGISTRATE JUDGE 24 NOTICE 25 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, 26 LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 27 28