(SS) Winkler v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WINKLER, ) Case No.: 1:18-cv-0099 - JLT ) 12 Plaintiff, ) ORDER DIRECTING ENTRY OF JUDGMENT IN ) FAVOR OF DEFENDANT COMMISSIONER OF 13 v. ) SOCIAL SECURITY AND AGAINST PLAINTIFF ) DAVID WINKLER 14 COMMISSIONER OF SOCIAL SECURITY, ) ) 15 Defendant. ) ) 16 ) 17 David Winkler asserts he is entitled to supplemental security income under Title XVI of the 18 Social Security Act. Plaintiff seeks judicial review of the decision denying his application for benefits, 19 and the decision of the Appeals Council denying his request for review. For the following reasons, the 20 administrative decision is AFFIRMED. 21 BACKGROUND 22 In October 2012, Plaintiff filed his application for benefits, in which he alleged disability 23 beginning March 6, 2012. (Doc. 18-9 at 2) The Social Security Administration denied the applications 24 at the initial level and upon reconsideration. (See Doc. 18-4 at 2-17; Doc. 18-3 at 12) Plaintiff 25 requested a hearing and testified before an ALJ on January 29, 2016, while represented by counsel. 26 (Doc. 18-3 at 12; see also Doc. 18-6) The ALJ determined that Plaintiff would not be disabled under 27 the Social Security Act if he would stop his substance abuse and issued an order denying benefits on 28 June 9, 2016. (Id. at 12-26) 1 Plaintiff terminated his representation and filed a request for review of the ALJ’s decision. 2 (Doc. 18-3 at 42; Doc. 18-8 at 72-47) On March 24, 2017, the Appeals Council notified Plaintiff that 3 the Regulations governing review of a case were changing as of May 1, 2017. (Doc. 18-3 at 33) The 4 Appeals Council informed Plaintiff the new rules would be applied to his claim, and his case would 5 only be reviewed if: (1) the ALJ abused his discretion; (2) there was an error of law; (3) the ALJ’s 6 decision was not supported by substantial evidence; (4) there was “a broad policy issue that may affect 7 the public evidence; or (5) the Appeals Council received additional evidence that Plaintiff showed was 8 “new, material, and relate[d] to the period on or before the date of the hearing decision.” (Id.) The 9 Appeals Council informed Plaintiff that he “must show that there is a reasonable probability that the 10 additional evidence would change the outcome of the decision.” (Id.) Although the new Regulations 11 also require claimants to demonstrate good cause for the delay in the submission of evidence, the 12 Appeals Council indicated it would “find that [Plaintiff] showed good cause” given the change in the 13 governing standards while his application was pending. (Id. at 34) However, the Appeals Council 14 reiterated: “You must still show that the additional evidence is also new and material, relates to the 15 period at issue, and shows a reasonable probability of changing the outcome of the hearing decision.” 16 (Id., emphasis omitted) 17 Plaintiff submitted nearly 150 pages of evidence to the Appeals Council, who looked at the 18 evidence “but did not consider and exhibit [the] evidence. (Doc. 18-3 at 3-4) The Appeals Council 19 found some of the evidence was “not new” because it duplicated several exhibits included in the record 20 before the ALJ. (Id. at 3) In addition, the Appeals Council found Plaintiff submitted evidence that did 21 “not relate to the period at issue,” because it post-dated the ALJ’s decision. (Id. at 4) Finally, the 22 Appeals Council determined the remaining evidence did “not show a reasonable probability that it 23 would change the outcome of the decision.” (Id.) Thus, the Appeals Council denied Plaintiff’s request 24 for review on November 16, 2017, and the ALJ’s determination became the final decision of the 25 Commissioner of Social Security. 26 STANDARD OF REVIEW 27 District courts have a limited scope of judicial review for disability claims after a decision by 28 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, 1 such as whether a claimant was disabled, the Court must determine whether the Commissioner’s 2 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ’s 3 determination that the claimant is not disabled must be upheld by the Court if the proper legal standards 4 were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of Health & 5 Human Serv., 812 F.2d 509, 510 (9th Cir. 1987). 6 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a 7 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 8 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole 9 must be considered, because “[t]he court must consider both evidence that supports and evidence that 10 detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 11 DISABILITY BENEFITS 12 To qualify for benefits under the Social Security Act, Plaintiff must establish she is unable to 13 engage in substantial gainful activity due to a medically determinable physical or mental impairment 14 that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. 15 § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: 16 his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work 17 experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in 18 which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 19 20 42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. 21 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability, 22 the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial 23 gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). 24 ADMINISTRATIVE DETERMINATION 25 To achieve uniform decisions, the Commissioner established a sequential five-step process for 26 evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520, 416.920(a)-(f). The process requires 27 the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of 28 alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the 1 listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had 2 the residual functional capacity to perform to past relevant work or (5) the ability to perform other work 3 existing in significant numbers at the state and national level. Id. The ALJ must consider testimonial 4 and objective medical evidence. 20 C.F.R. §§ 404.1527, 416.927. 5 A. Relevant Evidence before the ALJ 6 In June 2012, Plaintiff visited the Fresno Nephrology Medical Group, following a “CT that 7 showed bilateral exophytic renal masses.” (Doc. 18-12 at 7) Dr. Christopher Julian observed that 8 Plaintiff had “no known syndrome” but reported he “had “some kind of food poisoning leading to the 9 finding of bilateral renal masses.” (Id. at 16) He noted Plaintiff had “strong personal beliefs 10 concerning his own medical care and problems,” which he “hope[d] … [would] not get in the way of 11 his proper diagnosis and treatment.” (Id.) Following a biopsy, Plaintiff was diagnosed with renal cell 12 carcinoma. (Id. at 2, 5) 13 In July 2012, Dr. Steven Levy reviewed Plaintiff’s symptoms and noted Plaintiff was 14 “[p]ositive for almost everything including wide fluctuations in body temperature, weakness, sleeping 15 disorders, and pain here, there and everywhere.” (Doc. 18-12 at 5) Dr. Levy observed that Plaintiff 16 had “a number of interesting theories related to … various genetic diseases that he may or may not have 17 including G6PD deficiency, which [had] already been excluded and cystic fibrosis.” (Id.) Dr. Levy 18 ordered additional testing, which was negative for the mutations Plaintiff suspected. (Id. at 31) 19 Dr. Loan Nguyen, a neurologist, evaluated plaintiff in August 2012. (Doc. 18-12 at 25) 20 Plaintiff reported he had pain that he rated as 3/10 in his stomach, flanks, left leg, left buttock, and low 21 back. (Id.) She found Plaintiff’s motor strength was 5/5 in his upper and lower extremities; and his 22 senses were intact to touch, vibration, and proprioception. (Id. at 26) According to Dr. Nguyen, 23 Plaintiff had reduced reflexes at 2/4 in his biceps, triceps, and knees; and 1/4 reflexes in his ankles. 24 (Id.) She reviewed imaging of Plaintiff’s lumbar spine and opined Plaintiff had lumbar spondylosis at 25 the L4-L5 and L5-S1 level “without significant central spinal stenosis,” and “[m]ild to moderate 26 narrowing of the [right] L5-S1 neural foramen, and lateral recess.” (Id. at 26) Dr. Nguyen indicated 27 Plaintiff should see an orthopedic surgeon for evaluation of his hip pain and needed to see an 28 oncologist “ASAP.” (Id.) 1 In October 2012, Dr. Allan Hedberg reported he had been providing “psychological services” to 2 Plaintiff for a year. (Doc. 18-14 at 45) He noted Plaintiff’s “general health” was the subject of the 3 therapeutic sessions. (Id.) Dr. Hedberg reported that he diagnosed Plaintiff with obsessive-compulsive 4 disorder and adjustment reaction with mixed emotional features. (Id.) He recommended Plaintiff begin 5 “an antidepressant on a trial basis” for several months, before Plaintiff consented to begin Zoloft on 6 November 13, 2012. (Id. at 46) 7 Dr. Amneet Viri-Dulai evaluated Plaintiff “for … possibly underlying autoimmune disease” in 8 November 2012. (Doc. 18-12 at 50) Plaintiff attributed his illness to “beans and Starbucks coffee,” 9 and told Dr. Viri-Dulai that he was diagnosed with a coffee bean allergy. (Id. at 49, 50) Dr. Viri-Dulai 10 found Plaintiff had “good range of motion of all joints,” “minimal tenderness over the left trochanteric 11 bursa,” and negative straight leg raise tests. (Id. at 51-52) Dr. Viri-Dulai noted Plaintiff did “not 12 mention[] any symptoms concerning for an autoimmune disease,” but ordered “some basic autoimmune 13 workup” for Plaintiff. (Id. at 52) Upon receiving the results, Dr. Viri-Dulai opined the blood work was 14 “unremarkable,” and found no “evidence of an autoimmune disease.” (Id. at 49) 15 Dr. Richard Engeln performed a psychological evaluation on May 17, 2013. (Doc. 18-13 at 4) 16 He administered the Wechsler Adult Intelligence Scale 4th Edition, Wechsler Memory Scale IV, mental 17 status exam, and review of Plaintiff’s diagnostic history. (Id.) Plaintiff told Dr. Engeln that “his main 18 symptoms” included memory problems; “a hard time standing, walking, sitting or lifting;” and joint 19 pains. (Id. at 5) Plaintiff reported he was smoking marijuana for pain. (Id. at 6) Dr. Engeln observed 20 that Plaintiff was “cooperative and calm,” and his concentration was “[a]dequate for reception of all 21 tasks.” (Id. at 7) Dr. Engeln determined Plaintiff’s full-scale IQ score was 103, which was average, but 22 his perceptual reasoning and verbal comprehension were in the “high average” range. (Id. at 8, 9) 23 According to Dr. Engeln, Plaintiff had “no psychological restrictions to do job adjustment,” and any 24 limitations “would be medical-physical in nature.” (Id. at 9-10) Thus, he concluded Plaintiff had no 25 limitations with the ability to understand, remember, and carry out tasks; concentrate; interact with the 26 public, coworkers, and supervisors; and adapt to the usual workplace stresses. (Id. at 10) 27 On June 3, 2013, Plaintiff had a right open partial nephrectomy to remove his renal masses. 28 (Doc. 18-13 at 19-20) He was discharged on June 7, at which time he “was tolerating a regular diet” 1 and “his pain was controlled with … pain meds.” (Id. at 20) He did not receive pharmacologic therapy 2 for his cancer. (Id. at 49) 3 Dr. Dan Funkenstein reviewed Plaintiff’s medical record and noted Plaintiff obsessed “about 4 physical issues real and imagined” on June 6, 2013. (Doc. 18-7 at 8) He opined Plaintiff was “[n]ot 5 significantly limited” with his ability to carry out very short and simple instructions but was 6 “[m]oderately limited” with the ability to carry out detailed instructions. (Id. at 20-21) Dr. Funkenstein 7 concluded Plaintiff was “[a]ble to understand and remember work locations and procedures of a simple, 8 routine nature involving 1-2 step job tasks and instructions” and was “[a]ble to maintain concentration 9 and attention … in 2 hour increments.” (Id. at 21) 10 Dr. Sadda Reddy reviewed Plaintiff’s record related to his physical impairments and completed 11 a residual functional capacity assessment on July 22, 2013. (Doc. 18-7 at 17-20) Dr. Reddy opined 12 there was no medically-determinable impairment “on file that would account for the alleged degree of 13 [activities of daily living] limitations.” (Id. at 20) Dr. Reddy determined Plaintiff could lift and carry 14 20 pounds occasionally and 10 pounds frequently; stand and/or walk about six hours in an eight-hour 15 day, sit about six hours in an eight-hour day. (Id. at 17) Dr. Reddy also believed Plaintiff could 16 frequently climb, balance, stoop, kneel, crouch, and crawl. (Id. at 18) 17 In September 2013, Dr. Hedberg observed that Plaintiff would talk about “one topic and then all 18 of a sudden… shift[] to another topic very abruptly.” (Doc. 18-14 at 53) Plaintiff also appeared 19 “[v]ery interested in the issues of Christianity and faith vs. reason,” and Dr. Hedberg opined Plaintiff 20 was “still all over the map.” (Id.) Plaintiff continued to be “obsessed over the issue of religious 21 thought, belief, and faith” in October and November 2013. (Id. at 54-55) 22 Dr. Hedberg believed Plaintiff was “much calmer” and “much more relaxed” on December 2, 23 2013. (Doc. 18-14 at 56) In addition, he opined Plaintiff was “not as argumentative” and “[m]ore 24 reasonable.” (Id.) Dr. Hedberg observed that Plaintiff was “doing much better due to the medication 25 he [was] on.” (Id.) 26 The same date, Dr. Hedberg completed a “Short-Form Evaluation for Mental Disorders.” (Doc. 27 18-14 at 60) Dr. Hedberg noted Plaintiff had “cut down greatly” on his cannabis use “in [the] past 28 year.” (Id. at 61) He indicated Plaintiff had been diagnosed with depression, anxiety, and obsessive 1 personality disorder. (Id. at 60) According to Dr. Hedberg, Plaintiff exhibited poor impulse control 2 and manipulative behaviors, including an inability to “stay off certain topics.” (Id.) He opined 3 Plaintiff’s thought processes were circumstantial, tangential, and loose; his judgment was mildly to 4 moderately impaired; and his thought content included obsessions, compulsions, and phobias. (Id. at 5 61) Dr. Hedberg believed Plaintiff had “good progress [in treatment], especially since being placed on 6 medication in the past 3 months.” (Id. at 62) 7 In January 2014, Dr. Joan Bradus reviewed Plaintiff’s updated medical record pending his 8 request for reconsideration of the denial of benefits. (Doc. 18-7 at 34-35) Dr. Bradus opined there was 9 not “new and material medical findings to show worsening of physical impairments.” (Id. at 34) She 10 affirmed the findings of Dr. Reddy, finding Plaintiff was able to perform light work with postural 11 limitations. (Id. at 34, 38-39) 12 Dr. A. Garcia also reviewed Plaintiff’s record upon reconsideration. (Doc. 18-7 at 35-36) Dr. 13 Garcia opined Plaintiff had a mild restriction of activities of daily living; mild difficulties with 14 maintaining social functioning; and moderate difficulties in maintaining concentration, persistence, or 15 pace. (Id. at 35) 16 In March 2014, Dr. Hedberg wrote a letter to the Fresno County Superior Court regarding 17 Plaintiff’s request to be released from sex offender registration, reporting that Plaintiff entered into 18 therapy with “seriousness and thoroughness.” (Doc. 18-16 at 60) Dr. Hedberg indicated Plaintiff had 19 benefited from therapy. (Id.) 20 Dr. Hedberg observed that Plaintiff was “much better with his medication,” but continued to 21 “get into his obsessive-compulsive talk” in June 2014. (Doc. 18-16 at 59) Dr. Hedberg noted Plaintiff 22 would “just go[] off on a different topic,” and he could not control it. (Id.) Plaintiff’s wife also 23 attended the therapy session and “work[ed] hard at keeping him focused.” (Id.) 24 Plaintiff had imaging of his lumbar spine and left him on January 2, 2015, due to his reported 25 pain. (Doc. 18-16 at 5-6) Dr. Mariela Resendes determined Plaintiff had “[m]inimal degenerative 26 changes of the lumbar spine,” including narrowing at the L5-S1 level and facet hypertophy and 27 narrowing at the L4-5 and L5-S1 levels. (Id. at 5) In addition, Dr. Resendes found Plaintiff’s left hip 28 joint was “well maintained,” though there was “[a] small osseous bump… along the anterolateral 1 margin of the left hip” and a nodular density on the lateral aspect of the superior acetabulum. (Id. at 6) 2 In February 2015, Dr. Maria Baccaro began counseling Plaintiff. (Doc. 18-15 at 3) She noted 3 that Risperdal helped with Plaintiff’s obsessive thinking “but intrusive thoughts continue[d].” (Id.) 4 Plaintiff acknowledged that he was smoking 1 gram of marijuana per day, and Dr. Baccaro diagnosed 5 him with marijuana abuse. (Id. at 3-4) She gave Plaintiff a GAF score of 65.1 (Id. at 4) 6 In March 2015, Plaintiff told Dr. Baccaro that he had decreased his marijuana use from 1 gram 7 per week to ½ gram in 10 days. (Doc. 18-15 at 9) However, the next month, Plaintiff stated he was 8 smoking about 1 gram of marijuana per week. (Id. at 8) Dr. Baccaro noted that she “again 9 encouraged” Plaintiff to decrease and discontinue his marijuana use. (Id.) 10 Dr. Hedberg wrote to Dr. Baccaro on May 13, 2015 and observed that Plaintiff was “a complex 11 case.” (Doc. 18-16 at 64) Dr. Hedberg noted: “Neurospychological testing indicates measurable 12 memory loss, particularly related to the integration of information. He reports having frequent random 13 thoughts. This suggests that he is not integrating new information during his sleep cycle. The 14 hippocampus is implicated. This problem is consistent with research findings among those with a 15 history of chronic and excessive use of marijuana, which is the case for David.” (Id.) 16 In June 2015, Plaintiff told Dr. Baccaro he had not used marijuana for the past two months. 17 (Doc. 18-15 at 6) He indicated that he spent most of his days on the computer and talking about religion 18 in “a lot of atheist groups” on Facebook. (Id.) 19 Dr. Hedberg completed a medical statement on September 15, 2015. (Doc. 18-14 at 66-68) He 20 opined Plaintiff had moderate limitations with the ability to understand, remember, and carry out 21 simple instructions; and marked limitations with the ability to understand, remember, and carry out 22 complex instructions. (Id. at 66) He also believed Plaintiff had extreme limitations with his ability to 23 interact appropriately with the public, supervisors, and respond to usual work situations. (Id. at 67) 24 According to Dr. Hedberg, Plaintiff exhibited impairment with mood stability, decision-making, 25 memory function, judgment, impulse control, and perception of events. (Id.) 26 27 1 Global Assessment of Functioning scores range from 1-100, and in calculating a GAF score, the doctor considers “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed.) A GAF score between 61-70 28 indicates “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or 1 B. Plaintiff’s Hearing Testimony 2 Plaintiff testified he completed some college and “a personal computer program” at Fresno 3 Institute of Technology. (Doc. 18-6 at 6-7) Plaintiff said he last worked “[d]oing computer repair,” 4 and that he “stopped in early 2012.” (Id. at 7) The ALJ questioned Plaintiff about his work history, 5 and Plaintiff reported he “did warrant repair,” and Plaintiff confirmed he also reported self-employment 6 earnings. (Id. at 8-9) The ALJ asked Plaintiff whether he paid taxes when he was self-employed, and 7 Plaintiff responded he did not. (Id. at 8) When asked why, Plaintiff responded he “lived in poverty the 8 majority of his life,” and “was raised in a cult called Christian Science where ... if something was 9 wrong [they] were to ignore it and think it away.” (Id.) 10 The ALJ also inquired whether Plaintiff was ever incarcerated when looking at the gap in 11 Plaintiff’s work history. (Doc. 18-6 at 11) Plaintiff confirmed that he was for “[a] few days” in 2002. 12 (Id.) The ALJ asked Plaintiff what he was charged with and, after consulting his attorney, Plaintiff 13 responded his “conviction was for annoying or molesting a minor.” (Id. at 12) Because Plaintiff was 14 “only [in] jail for a couple of days,” the ALJ observed that it did not “account for why there’s a five 15 year gap in [the] treatment record,” and Plaintiff agreed. (Id.) 16 He reported that he was no longer able to work due to “a few issues mostly with [his] brain and 17 [his] spine.” (Doc. 18-6 at 9) He stated he had “a herniated disc and a degenerative disease that there 18 aren’t any painkillers for.” (Id. at 17) He said that he smoked “[a]bout a gram a day” of marijuana. (Id. 19 at 10) Plaintiff testified one doctor advised him to stop, while “[o]ne doctor gave [him] a license to 20 help … treat the pain.” (Id.) When asked if a treating physician gave him the marijuana license, 21 Plaintiff simply stated he “had an appointment” with the physician but did not answer whether or not 22 the doctor did “anything else but write out this prescription.” (Id. at 10-11) However, Plaintiff testified 23 that he never returned to see the physician after receiving the marijuana prescription. (Id. at 11) 24 Plaintiff said he needed “to be reminded” to dress and bathe himself, but he would “do it on 25 [his] own” if he was going “out for important things.” (Doc. 18-6 at 13) He stated he could prepare 26 meals with help, but he was “not allowed to use the stove anymore” after he “burned a couple of pots 27 and pans.” (Id.) Plaintiff said he was “supposed to” do the laundry but would “quite often forget” and 28 his wife would do it instead. (Id.) 1 Plaintiff testified he spent “[m]ost” of his time— estimated to be about twelve hours a day— 2 researching beans and the genetic deficiency called Favism. (Doc. 18-6 at 14) Plaintiff said one of the 3 things he would read about “was a ritual held for 2000 years where 15,000 people or upwards … would 4 gather each year to drink the Kykeon.” (Id. at 22) Plaintiff explained it “had a mystery ingredient and 5 Pythagoras who told us his followers to stay far from fava beans was a priest in this cult.” (Id.) He 6 acknowledged that physicians administered three tests for Favism, and he did not have it. (Id. at 14-15) 7 He reported that he spent about an hour or two on social media each day but did not have social 8 contacts other than Facebook. (Doc. 18-6 at 14-15) Plaintiff said he did not “have a single theist friend 9 except for [his] wife,” because he could not “stand the imagination, gas lighting crap… and [he] pretty 10 much chased everyone away.” (Id. at 15) He stated that while he had friends on Facebook, he would 11 “argue too much” because he wanted “to argue about religion.” (Id. at 23) Plaintiff testified, “as long 12 as I keep my mouth shut I don’t get shunned by people anymore so I don’t socialize very much.” (Id.) 13 The ALJ asked Plaintiff if he could explain the analogy of Plato’s cave, which Plaintiff wrote 14 about in a document reviewed by the ALJ. (Doc. 18-6 at 22) Plaintiff responded: “I think it has to do 15 with the forbidden fruit and the knowledge of it between good and evil. It was a five month brush with 16 death and it was a nightmare, and the healing from it would normally be a wonderful thing except for I 17 filled my brain with water.” (Id.) 18 Plaintiff testified that he had seen two psychiatrists, but he was not currently seeing one. (Doc. 19 18-6 at 15) He said he stopped seeing psychiatrists because “nobody would believe [him] and it 20 infuriated [him].” (Id. at 16) 21 C. Vocational Expert 22 Thomas Dachelet, a vocational expert (“VE”), testified before the ALJ and indicated he could 23 “provide an impartial and neutral opinion on [the] case.” (Doc. 18-6 at 24) The VE reported he 24 listened to Plaintiff’s testimony and reviewed the record related to Plaintiff’s work history. (Id. at 25) 25 He indicated Plaintiff’s past relevant work was “associated with the title electronics mechanic” in the 26 Dictionary of Occupational Titles2, DOT 828.261-022. (Id.) 27 28 2 The Dictionary of Occupational Titles (“DOT”) by the United States Dept. of Labor, Employment & Training 1 The ALJ asked the VE “to consider a hypothetical individual who [had] the same age, education 2 and previous work experience as the claimant.” (Doc. 18-6 at 26) In addition, the ALJ indicated the 3 “hypothetical person [had] the residual functional capacity to perform a full range of light work,” 4 including the ability to “lift and carry 20 pounds occasionally and 10 pounds frequently;” “stand and/or 5 walk with normal breaks for about six hours in an eight hour day;” “sit with normal breaks for about six 6 hours in an eight hour day;” and “frequently climb…, balance, stoop, knee, crouch, and crawl.” (Id. at 7 26-27) Further, the ALJ indicated the individual could “understand and remember work locations and 8 procedures of a simple routine nature involving one to two step job tasks and instructions,” and 9 “maintain attention and concentration with ease in two hour increments.” (Id. at 27) Finally, the ALJ 10 directed the VE to consider one who could “relate to and accept direction from supervisors;” “remain 11 socially appropriate with co-workers and the public without being distracted;” and “be able to travel, 12 avoid workplace hazards, respond to chance and set realistic goals independently.” (Id.) 13 The VE opined an individual with this physical and mental residual functional capacity could 14 not perform Plaintiff’s past relevant work. (Doc. 18-6 at 27) However, the VE believed the 15 hypothetical individual could perform light and unskilled jobs that did not include “transferable skills 16 from previous work.” (Id.) For example, the VE identified the following positions: palletizer, DOT 17 929.687054; garment sorter, DOT 222.687-014; and package operator automatic, DOT 920.685.082. 18 (Id. at 27-28) 19 D. The ALJ’s Findings 20 Pursuant to the five-step process, the ALJ determined first that Plaintiff did not engage in 21 substantial activity after the application date of October 24, 2012. (Doc. 18-3 at 14) Second, the ALJ 22 found Plaintiff’s severe impairments included “chronic marijuana abuse, hypochondria, and obsessive 23 compulsive disorder.” (Id.) At step three, the ALJ determined Plaintiff’s “impairments, including the 24 substance use disorder, meet sections 12.08 and 12.09 of 20 CFR Part 404, Subpart P, Appendix 1.” 25 (Id. at 16) The ALJ also opined, “If the claimant stopped the substance use, the claimant would not 26 have an impairment or combination of impairments that meets or medically equals any of the 27 28 Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). The DOT classifies jobs by their exertional and skill requirements, and it 1 impairments listed.” (Id. at 18) Next, the ALJ found: 2 If the claimant stopped the substance use, the claimant would have the residual functional capacity to perform light work as defined in 20 CFR 416.967(b): he could 3 lift and/or carry 20 pounds occasionally and 10 pounds frequently. He could stand and/or walk, with normal breaks, for about six hours in an eight-hour workday. He 4 could push and/or pull as much as he could lift and/or carry. He could frequently climb ramps, stairs, ladders, ropes, and scaffolds. He could frequently balance, stoop, kneel, 5 crouch, and crawl. He could understand and remember work locations and procedures of a simple, routine nature involving one- to two-step job tasks and instructions. He 6 could sustain an eight-hour day and/or 40-hour workweek schedule on a sustained basis. He could relate to and accept direction from supervisors. He could remain 7 socially appropriate with co-workers and the public without being distracted by them. He could travel, avoid workplace hazards, and respond to changes and set realist goals 8 independently. 9 (Id. at 19) 10 With this residual functional capacity, the ALJ opined Plaintiff “would be unable to perform 11 past relevant work,” which required medium exertion. (Doc. 18-3 at 24) However, the ALJ found 12 there were “a significant number of jobs in the national economy that the claimant could perform” if he 13 stopped his substance use, including: palletizer, garment sorter, and package sorter. (Id. at 25) The 14 ALJ determined: “The substance use disorder is a contributing factor material to the determination of 15 disability because the claimant would not be disabled if he stopped the substance abuse.” (Id. at 26) 16 Therefore, the ALJ concluded Plaintiff was “not disabled within the meaning of the Social Security Act 17 at any time from the date the application was filed through the date of the decision.” (Id.) 18 E. Evidence Presented to the Appeals Council 19 Plaintiff submitted nearly 150 pages of evidence to the Appeals Council while his request for 20 review was pending. The Appeals Council addressed the documents as follows: 21 You submitted medical records from Loan Nguyen, MD dated July 17, 2012 through April 22, 2015 (9 pages) and June 22, 2012 through September 27, 2012 (19 pages); 22 Fresno Nephrology Medical Group dated July 9, 2012 (2 pages) and June 1, 2012 (2 pages); California Imaging Institute dated May 23, 2012 (2 pages); University 23 Medicine Associates dated September 15, 2014 (1 page); Humaira Sadiq, MD dated June 11, 2012 through October 1, 2012 (19 pages); and Allan Hedberg, Phd dated 24 November 13, 2012 through (8 pages), and October 2, 2012 through November 13, 2012 (3 pages). This evidence is not new because it is a copy of Exhibits 2F, 4F, 5F, 25 12F, 14F, l 7F, 20F, and 21F. We did not consider and exhibit this evidence. 26 You also submitted a statement from Alan Whistler dated March 16, 2016 (6 pages); a statement from Douglas Graves, PsyD dated April 30, 2014 (1 page); a printout of a 27 forum posting dated October 22, 2015 (2 pages); critique/analysis from David MacDonnell (2 pages); emails and cover letters regarding favism dated December 17, 28 2014 through December 22, 2014 (5 pages); timeline from the claimant (17 pages); critique of Dr. Bauer’s Neuropsychological Evaluation (9 pages); history of interaction 1 with doctors Sheikh and Sadiq (7 pages); Application for Disabled Person Placard dated June 1, 2012 (2 pages); essay on favism (22 pages); copies of emails between Dr. 2 Hedberg and the claimant dated January 1, 2015 through November 26, 2015 (10 pages); and copies of emails with Dr. Hedberg regarding history of favism essay dated 3 March 18, 2014 through December 17, 2014 (18 pages). 4 You also submitted a letter from David Crabtree, LCSW dated May 5, 2016 (1 page); a neuropsychological evaluation from Christopher Bauer, PhD dated June 3, 2016 (6 5 pages); medical records from Urology Associates dated May 25, 2012 through July 27, 2012 (2 pages); USCF Oncology dated June 4, 2012 (2 pages); Fresno Nephrology 6 Medical Group dated October 29, 2012 (2 pages); Mid Valley Cardiology dated April 11, 2012 through April 13, 2012 (5 pages); Humaira Sadiq, MD dated May 23, 2012 7 through May 30, 2012 (3 pages) and April 3, 2012 through May 24, 2012 (16 pages); Raymond Kidwell, MD dated May 13, 2012 and May 21, 2014 ( 3 pages); Loan 8 Nguyen, MD dated June 22, 2012 (6 pages) and June 22, 2012 through August 6, 2012 (10 pages); Baz Allergy, Asthma & Sinus Center dated April 23, 2012 (1 page); Heart 9 Institute at Community dated June 1, 2012 (2 pages); Community Medical Centers dated May 15, 2012 through February 24, 2016 (17 pages) and March 22, 2012 through 10 April 13, 2012 (16 pages); UCSF, Gastroenterology & Hepatology dated May 10, 2012 through July 5, 2012 (10 pages); list of medical visits from 2012-2016 (4 pages); Saint 11 Agnes Medical Center dated April 29, 2012 through June 30, 2012 (6 pages); Sujatha Srikanth, MD dated November 6, 2012 (2 pages); Sante Community Physicians dated 12 May 20, 2012 through June 4, 2012 (3 pages); UCSF/Soe Naing, MD dated July 19, 2012 (11 pages); Willow Urgent Care dated April 8, 2012 (2 pages); Pacific Gas & 13 Electrical Company Medical Baseline Allowance Application dated June 1, 2012 (2 pages); visit summary from University Medicine Associates dated March 23, 2016 (1 14 page); and Quest Diagnostics dated May 25, 2012 ( 1 page). We find this evidence does not show a reasonable probability that it would change the outcome of the decision. We 15 did not consider and exhibit this evidence. 16 You submitted medical records from Fresno Surgical Hospital dated July 7, 2016 (3 pages), and Christina Maser, MD dated July 12, 2016 (4 pages). The Administrative 17 Law Judge decided your case through June 9, 2016. This additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you 18 were disabled beginning on or before June 9, 2016. 19 (Doc. 18-3 at 3-4) 20 DISCUSSION AND ANALYSIS 21 Plaintiff suggests the ALJ and vocational expert were biased at the hearing. (Doc. 28 at 10-14) 22 He focuses upon the decision of the Appeals Council to deny review based upon the submission of the 23 additional evidence presented, arguing he “believes these items should be considered.” (Id. at 16; see 24 also id. at 14-26) Plaintiff has not challenged the ALJ’s findings regarding his physical and mental 25 abilities, or the conclusion that substance use was a material factor. (See generally Doc. 28) 26 The Commissioner declined to “attempt to understand Plaintiff’s brief, but ... set out an 27 explanation of the analysis” related to substance use “and how the ALJ applied it.” (Doc. 29 at 18) The 28 Commissioner asserts substantial evidence supports the ALJ’s findings, and the administrative decision 1 to deny benefits should be affirmed. (Id. at 19-27) 2 A. Review by the Appeals Council 3 The Regulations govern when Appeals Council is obligated to review additional evidence 4 submitted after the ALJ issues a decision. See 20 C.F.R. §§ 404.970, 416.1570 (effective January 17, 5 2017). The Regulations indicate that the Appeals Council “will review a case if ... the Appeals 6 Council receives additional evidence that is new, material, and relates to the period on or before the 7 date of the hearing decision, and there is a reasonable probability that the additional evidence would 8 change the outcome of the decision.” 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5). Evidence is new if 9 it is not duplicative or cumulative. Meyer v. Astrue, 662 F.3d 700, 704-05 (4th Cir. 2011). In addition, 10 evidence can be deemed new if it was not available when the ALJ made issued the decision. Threet v. 11 Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003). 12 1. Consideration of evidence 13 The Ninth Circuit has distinguished between evidence the Appeals Council “considered” and 14 evidence the Appeals Council merely “looked at” to determine whether the additional evidence was 15 incorporated into the record. The Court explained that evidence the Appeals Council considered 16 becomes part of the administrative record as “evidence upon which the findings and decision 17 complained of are based.” See Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 18 2012). In contrast, where “the Appeals Council only looked at the evidence... the new evidence did not 19 become part of the record.” Amor v. Berryhill, 743 F. App’x 145, 146 (9th Cir. 2018) (emphasis 20 added); see also De Orozco v. Comm’r of Soc. Sec, 2019 WL 2641490 at*11 (E.D. Cal. June 26, 2019) 21 (observing that the Ninth Circuit has distinguished between instances where the Appeals Council 22 formally considered evidence and made it part of the administrative record with instances where the 23 Appeals Council only looked at the evidence). Importantly, where the Appeals Council only looks at 24 the evidence and it does not become part of the administrative record, the Court “may not consider it.” 25 Amor, 743 F. App’x at 146; see also Lowry v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). 26 The Appeals Council indicated that it reviewed the new evidence from Plaintiff and 27 determined it: (1) was duplicative of evidence previously admitted into evidence, (2) did “not show a 28 reasonable probability that it would change the outcome of the decision,” and (3) did “not relate to the 1 period at issue.” (Doc. 18-3 at 3) Therefore, the Appeals Council indicated it “did not consider and 2 exhibit this evidence.” (Id. at 3-4) Because the Appeals Council did not consider the evidence but 3 merely looked at it, the documents submitted were not incorporated to the administrative record 4 subject to the Court’s review, unless Plaintiff meets his burden to demonstrate the evidence should 5 have been considered. See Amor, 743 F. App’x at 146; Lowry, 329 F.3d at 1024. 6 2. Plaintiff’s burden 7 When the Appeals Council fails to “consider” additional evidence that satisfies the 8 requirements of Section 404.970(b) or 416.1570(b), a remand for further administrative proceedings is 9 appropriate. Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th Cir. 2011). A claimant 10 has the burden to demonstrate the evidence should have been considered by the Appeals Council 11 under the Regulations. See Hawks v. Berryhill, 2018 WL 6728037 at *4 (M.D.N.C. Dec. 21, 2018) 12 (noting under the amended Regulations, “a claimant’s burden to have new evidence considered for the 13 first time at the Appeals Council level” includes “a requirement to show a reasonable probability of a 14 different outcome”). 15 Plaintiff contends the Appeals Council should have considered the evidence submitted because 16 it did “not consist of the same data entered into the original record for consideration as detailed.” 17 (Doc. 28 at 16) Notably, Plaintiff does not dispute the Appeals Council’s finding that some of the 18 evidence submitted duplicated exhibits already entered into the record with “Exhibits 2F, 4F, 5F, 12F, 19 14F, l 7F, 20F, and 21F.” (See Doc. 18-3 at 3) To the contrary, Plaintiff cites Exhibits 2F, 12F, 17F, 20 20F and 23F in noting the similarities of the information provided. (See id. 28 at 18-20) Thus, the 21 Court will not disturb the finding that Plaintiff submitted duplicate evidence. 22 Further, Plaintiff fails to identify any objective findings in the record that undermine the ALJ’s 23 findings regarding his physical and mental abilities and limitations, or the conclusion that Plaintiff’s 24 substance use was a material factor. Rather, Plaintiff repeatedly refers to subjective statements in the 25 additional evidence. For example, Plaintiff emphasized that records from Fresno Nephrology Medical 26 Group dated October 29, 2012 indicated Plaintiff was “[p]ositive in every possible way.” (Doc. 28 at 27 15, 22) A similar observation was made in July 2012, when Dr. Steven Levy indicated Plaintiff was 28 “[p]ositive for almost everything” upon his review of symptoms, including reported “wide fluctuations 1 in body temperature, weakness, sleeping disorders, and pain here, there, and everywhere.” (Doc. 18-12 2 at 5) The physicians at Fresno Nephrology Medical Group ordered genetic testing and determined 3 Plaintiff did not have the genetic mutations Plaintiff suspected. (Id. at 31) Likewise, Dr. Viri-Dulai 4 found Plaintiff’s blood wok showed “found no “evidence of an autoimmune disease.” (Id. at 49) 5 Because Plaintiff fails to identify any evidence among the documents submitted to the Appeals Council 6 addressing the severity of his impairments, the effect upon his physical or mental abilities to do most 7 jobs, or the materiality of his drug use, the Appeals Council did not err in concluding Plaintiff failed to 8 carry the burden to show “a reasonable probability that it would change the outcome of the decision.” 9 See Matthews v. Shalala, 10 F.3d 678 (9th Cir. 1993) (“The mere existence of an impairment is 10 insufficient proof of a disability”); see also Nottoli v. Astrue, 2011 WL 675290, at *3 (E.D. Cal. Feb. 11 16, 2011) (“recitation of a medical diagnosis does not demonstrate how that condition impacts 12 plaintiff’s ability to engage in basic work activities”). 13 Finally, Plaintiff fails to show that evidence post-dating the ALJ’s decision is, in fact, relevant 14 to the period adjudicated. As noted by the Appeals Council, Plaintiff “submitted medical records 15 from Fresno Surgical Hospital dated July 7, 2016 (3 pages) and Christina Maser, MD dated July 12, 16 2016 (4 pages);” but the ALJ decided the case “through June 9, 2016.” (Doc. 18-3 at 4) The record 17 dated July 7, 2016 is a “medication discharge summary,” which is a summary of all medications 18 Plaintiff received from July 6 to July 7, 2016 at the hospital. (Id. at 71-73) There is no explanation 19 why Plaintiff was in the hospital at this time, such that the Court may determine whether it related to 20 impairments addressed by the ALJ or find Plaintiff also received these medications during the 21 adjudicated period. (See id.) Likewise, the records from Dr. Maser in July 2016 address Plaintiff’s 22 “current state,” including his desire “to experiment with fava bean juice again and monitor the 23 response of his body.” (Doc. 18-5 at 49, emphasis added) Thus, these records do not relate to the 24 period adjudicated. 25 Because Plaintiff fails to show the additional evidence was “new, material, and relates to the 26 period on or before the date of the hearing decision” and that there was “a reasonable probability that 27 the additional evidence would change the outcome of the decision,” he fails to demonstrate error by 28 the Appeals Council in merely looking at the evidence and not incorporating it as exhibits into the 1 administrative record. See 20 C.F.R. §§ 404.970, 416.1570. 2 B. Alleged Bias of the ALJ 3 Plaintiff suggests the ALJ was biased at the administrative hearing and acted improperly with 4 the questioning regarding Plaintiff’s work history, failure to pay taxes, incarceration, and conviction. 5 (See Doc. 28 at 10-12) 6 Due process requires that administrative hearings be conducted by an unbiased adjudicator. 7 Schweiker v. McClure, 456 U.S. 188, 195-96 (1982). The impartiality of administrative law judges is 8 “integral to the integrity of the system.” Miles v. Chater, 84 F.3d 1397, 1401 (11th Cir. 1996). 9 Administrative law judges are presumed to be impartial and unbiased, but the presumption of 10 impartiality can be rebutted by a claimant demonstrating “a conflict of interest or some other specific 11 reason for disqualification.” Id.; see also Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). A 12 claimant asserting bias must demonstrate the ALJ’s conduct, in the context of the entire proceeding, is 13 “so extreme as to display clear inability to render fair judgment.” Rollins v. Massanari, 261 F.3d 853, 14 857-858 (9th Cir. 2001), citing Liteky v. United States, 510 U.S. 540, 551 (1994). The claimant must 15 establish “actual bias,” rather than the “mere appearance of impropriety.” Bunnell v. Barnhart, 336 16 F.3d 1112, 1115 (9th Cir. 2003). 17 Contrary to Plaintiff’s suggestion, the transcript does not reveal any bias on the part of the ALJ 18 in his questioning. The ALJ did not demonstrate bias either in the manner in which he conducted the 19 hearing or in the conclusions reached. Rather, the ALJ is entitled to consider a claimant’s work history, 20 conviction for a crime of moral turpitude, and general reputation for truthfulness when evaluating the 21 credibility of a claimant’s testimony and subjective statements. See, e.g., Thomas v. Barnhart, 278 22 F.3d 947, 958-59 (9th Cir. 2002) (finding a claimant’s poor work history was a relevant factor in a 23 credibility evaluation); Hardisty v. Astrue, 592 F.3d 1072, 1080 (9th Cir. 2010) (finding the ALJ’s 24 credibility determination was substantially justified when it was based, among other factors, on the 25 claimant’s prior criminal convictions); Albidrez v. Astrue, 504 F.Supp.2d 814, 822 (C.D. Cal. 2007) 26 (“[a]n ALJ may properly consider a claimant’s poor or nonexistent work history in making a negative 27 credibility determination,” as well as “convictions involving moral turpitude”); Farmer v. Colvin, 2014 28 WL 3818510 at *16 (D. Ariz. Aug. 4, 2014) (“[c]onsideration of evidence of prior incarceration, 1 particularly for a crime of moral turpitude, is not error”); Gainforth v. Colvin, 2016 WL 3636840 at *5 2 (E.D. Va. May 9, 2016) (“failure to pay taxes brings [the claimant’s] credibility into question”). 3 Because the inquiries made by the ALJ were relevant to evaluate Plaintiff’s credibility, the Court finds 4 Plaintiff fails to demonstrate any bias based upon the questions asked by the ALJ at the hearing. 5 C. Alleged bias of the Vocational Expert 6 Plaintiff believes the vocational expert, Thomas Dachelet, was also biased against him at the 7 hearing. (Doc. 28 at 14) Plaintiff speculates that Mr. Dachelet was biased because he “expressed 8 irritation in his tone when given [an] answer to his ability to work, probably because [Plaintiff] said 9 umm multiple times.” (Id.) 10 An ALJ may call a vocational expert “to testify as to (1) what jobs the claimant, given his or 11 her functional capacity, would be able to do; and (2) the availability of such jobs in the national 12 economy.” Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). When eliciting testimony from the 13 expert, the ALJ may pose “hypothetical questions to the vocational expert that ‘set out all of the 14 claimant’s impairments’ for the vocational expert’s consideration.” Id. (quoting Gamer v. Sec’y of 15 Health and Human Servs., 815 F.2d 1275, 1279 (9th Cir. 1987)). Significantly, “it is well established 16 that … vocational experts are not biased” and give impartial opinions. See also Simmons v. Berryhill, 17 2017 WL 8777460, n.10 (N.D. Va. Dec. 22, 2017). 18 Prior to testifying, the vocational expert indicated he could “provide an impartial and neutral 19 opinion on [the] case.” (Doc. 18-6 at 24) The ALJ merely questioned the vocational expert regarding 20 the classification of Plaintiff’s past relevant work and asked him “to consider a hypothetical individual 21 who [had] the same age, education and previous work experience as the claimant.” (Id. at 25-26) In 22 addition, the ALJ set forth a physical and mental residual functional capacity for the vocational expert’s 23 evaluation. Plaintiff offers nothing more than speculation that the vocational expert was biased and 24 irritated at the hearing. Because there is no evidence of bias in the record, the Court finds the ALJ did 25 not err in relying upon the testimony of the vocational expert. 26 D. Materiality of Plaintiff’s Substance Use 27 To the extent Plaintiff believes the ALJ erred in his ultimate conclusion that Plaintiff that was 28 not disabled, he fails to identify how the ALJ erred in his evaluation of the evidence. The Ninth 1 Circuit “has repeatedly admonished that [it] cannot ‘manufacture arguments for an appellant.’” Indep. 2 Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (quoting Greenwood v. Fed. 3 Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)). Rather, the Court will “review only issues with 4 are argued specifically and distinctly.” Id. Therefore, when a claim of error is not argued and 5 explained, the argument is waived. See, id. at 929-30 (holding that party’s argument was waived 6 because the party made only a “bold assertion” of error, with “little if any analysis to assist the court in 7 evaluating its legal challenge”); see also Hibbs v. Dep't of Human Res., 273 F.3d 844, 873 n.34 (9th 8 Cir. 2001) (finding the assertion of error was “too undeveloped to be capable of assessment”). 9 Because Plaintiff failed to identify or discuss any alleged error in the ALJ’s evaluation, he has waived 10 any argument regarding the materiality of his substance use. Nevertheless, the Court finds the ALJ’s 11 determination that Plaintiff’s use of marijuana was a material factor is supported by substantial 12 evidence in the record. 13 If, considering a claimant’s medically determinable impairments, there is a determination that 14 the claimant is disabled, and there is medical evidence showing drug addiction and alcoholism, then the 15 ALJ must determine whether the substance use is “material” to the finding that the claimant is disabled. 16 20 C.F.R. § 404.1535. The Social Security Act provides that a claimant “shall not be considered 17 disabled” if the substance use is “a contributing factor material to the . . . determination that the 18 individual is disabled.” 42 U.S.C. § 423(d)(2)(C). To determine whether a claimant’s substance is 19 material, the test is whether an individual would still be found disabled if he or she stopped using drugs 20 or alcohol. See 20 C.F.R. §§ 404.1535(b), 416.935(b); Parra v. Astrue, 481 F.3d 742, 746-47 (9th Cir. 21 2007); Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998). The ALJ must “evaluate which of [the 22 claimant’s] current physical and mental limitations . . . would remain if [the claimant] stopped using 23 drugs or alcohol and then determine whether any or all of [the claimant’s] remaining limitations would 24 be disabling.” 20 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2). If the remaining limitations are disabling, 25 then the substance use is not a material contributing factor to the determination of disability. See 20 26 C.F.R. §§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii). The burden of proof is on a claimant to establish that 27 his substance use is not a material contributing factor to his disability. Parra, 481 F.3d at 745. 28 1 The ALJ determined that Plaintiff’s “mental impairments, including his substance use disorder, 2 meet listings 12.08 and 12.09.” (Doc. 18-3 at 17) However, the ALJ also found Plaintiff “would not 3 have an impairment or combination of impairments that meets or medically equals any of the 4 impairments listed” if he “stopped the substance abuse.” (Id. at 18) The ALJ opined: “The record 5 contains extensive evidence of the claimant’s chronic marijuana abuse as a significant exacerbating 6 factor for his mental conditions.” (Id. at 21) For example, the ALJ observed that “Dr. Bacarro 7 encouraged him to decrease[] and discontinue marijuana use,” and “Dr. Hedberg advised him to stop 8 using any drugs, i.e. marijuana.” (Id. at 22, citing Exh. 19F p. 6 [ Doc. 18-5 at 7], Exh. 21F, p. 2 [Doc. 9 18-16 at 51]) Further, the ALJ observed: 10 Dr. Hedberg reported that neuropsychological testing indicated measurable memory loss, particularly related to the integration of information (Ex. 21F/15). Dr. Hedberg 11 also noted the claimant reported frequent random thoughts, which suggested that he failed to integrate new information during his sleep cycle (Ex. 21F/15). Notably, Dr. 12 Hedberg opined that his condition was related to his chronic and excessive use of marijuana (Ex. 24F/15). 13 14 (Doc. 18-3 at 22, emphasis added). In contrast, the ALJ noted that Plaintiff “demonstrated 15 improvement” during a period of sobriety. (Id. at 22, 23) Specifically, the ALJ observed: 16 When off marijuana, Dr. Baccaro noted his ability to engage with others online (Ex. 19F/5). Multiple progress notes documented the claimant's normal mood and affect 17 when substance abuse stopped. For instance, in September 2014, a physician noted that he was “well groomed” and “pleasant” (Ex. 22F/11). At that time, the claimant 18 showed a normal mood and affect. (Ex. 22F/l l). He was able to discuss medical issues in a rational way (Ex. 22F/l l). 19 20 (Id. at 18-3 at 23) The recommendations of physicians that Plaintiff stop using marijuana, the opinion 21 that Plaintiff’s “condition was related to his chronic and excessive use of marijuana,” and findings 22 regarding the difference in Plaintiff’s mood and affect when off marijuana are substantial evidence in 23 support of the conclusion that his substance use was a material factor. 24 For example, the Eighth Circuit reviewed an ALJ’s determination that the claimant’s marijuana 25 use was a material factor of his disability in Kluesner v. Astrue, 607 F.3d 533 (8th Cir. 2010) The 26 Court found substantial evidence supported the ALJ’s conclusion that the claimant’s substance use 27 was a material factor, because a treating physician specifically recommended Kluesner “stop using 28 marijuana” and another opined Kluesner’s “use of marijuana contributes materially to his 1 dysfunction.” Id., 607 F.3d at 535, 537. Kluesner noted that one physician opined it was “unlikely 2 that his symptoms [were] explained by his cannabis abuse,” but the court found the “majority of the 3 evidence in the record support[ed] the Commissioner. Id. at 538. Thus, the court affirmed the finding 4 that substance abuse was a material factor for Kluesner’s application for benefits. Similarly, here, the 5 ALJ’s conclusion is supported by the recommendations of physicians and opinion that Plaintiff’s 6 mental condition was related to his marijuana use. 7 CONCLUSION AND ORDER 8 For the reasons set forth above, the Court finds the Appeals Council did not err in declining to 9 consider the additional evidence submitted by Plaintiff, and Plaintiff fails to show any bias by the ALJ 10 or vocational expert. Finally, Plaintiff has waived any challenge to the ALJ’s conclusion that his 11 substance use was a material factor. Accordingly, the Court ORDERS: 12 1. The decision of the Commissioner of Social Security is AFFIRMED; and 13 2. The Clerk of Court is DIRECTED to enter judgment in favor of Defendant, the 14 Commissioner of Social Security, and against Plaintiff David Winkler. 15 16 IT IS SO ORDERED. 17 Dated: September 27, 2019 /s/ Jennifer L. Thurston 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28