(SS) Schuler v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 GLENN SCHULER, ) Case No.: 1:18-cv-0884-BAM 12 ) Plaintiff, ) ORDER REGARDING PLAINTIFF’S 13 v. ) S OCIAL SECURITY COMPLAINT ) 14 ANDREW M. SAUL,1 Commissioner of ) Social Security, ) 15 ) Defendant. ) 16 ) 17 18 INTRODUCTION 19 Plaintiff Glenn Schuler (“Plaintiff”), appearing pro se, seeks judicial review of a final decision 20 of the Commissioner of Social Security (“Commissioner”) denying his application for disability 21 insurance benefits (“DBI”) under Title II of the Social Security Act and for supplemental security 22 income (“SSI”) under Title XVI of the Social Security Act. The matter is currently before the Court on 23 the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. 24 McAuliffe.2 25 26 1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul is substituted for Acting Commissioner Nancy A. Berryhill as the defendant in this suit. 27 2 The parties consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). 28 (Doc. Nos. 11, 18.) 1 Having considered the briefing and record in this matter, the Court finds the decision of the 2 Administrative Law Judge (“ALJ”) to be supported by substantial evidence in the record as a whole 3 and based upon proper legal standards. Accordingly, the Court affirms the agency’s determination to 4 deny benefits. 5 FACTS AND PRIOR PROCEEDINGS 6 On April 8, 2013, Plaintiff filed an application for a period of disability and DBI. AR 190- 7 196.3 Plaintiff also filed an application for SSI on April 10, 2013. AR 197-223. In both applications, 8 Plaintiff alleged disability beginning September 1, 2011. AR 190, 197. Plaintiff’s applications were 9 denied initially and on reconsideration and Plaintiff subsequently requested a hearing before an ALJ. 10 AR 132-147. ALJ William Mueller held a hearing on April 20, 2015, and issued an order denying 11 benefits on May 28, 2015. AR 35-81. Plaintiff sought review of the ALJ’s decision, which the Appeals 12 Council denied on November 17, 2016, making the ALJ’s decision the Commissioner’s final decision. 13 AR 21-26. 14 On January 19, 2017, Plaintiff requested an extension of time to file a civil action, which the 15 Appeals Council granted on April 27, 2017. AR 16-17. On October 24, 2017, Plaintiff requested that 16 his claim be reopened because Plaintiff had not received notification that his original request for 17 review had been denied. AR 6. Plaintiff also requested permission to submit additional statements or 18 an extension of thirty (30) days to file a civil action. AR 6. On December 29, 2017, Plaintiff requested 19 a new extension of time to file a civil action because Plaintiff had not received the Appeals Council’s 20 April 27, 2017 letter. AR 4. On May 24, 2018, the Appeals Council declined to reopen Plaintiff’s 21 claims and granted a further extension of time for Plaintiff to file a civil action. AR 12-13. This appeal 22 followed. 23 Relevant Hearing Testimony 24 The ALJ held a hearing on April 20, 2015, in San Diego, California. Plaintiff was present and 25 represented by his attorney, Randilyn Nordstrom. Impartial Vocational Expert (“VE”) Connie Guillory 26 also appeared. AR 51-54. 27 28 3 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 In response to questioning by the ALJ, Plaintiff testified that he was forty-three and was not 2 working at the time of the hearing. AR 55. Plaintiff last worked in September of 2011. AR 55. Plaintiff 3 claimed he filed an application for disability in March of 2000 that was lost and had also filed for food 4 stamps and Medicaid. AR 56. Plaintiff determined his date of disability by reviewing his bank records 5 and determining that he last received a check from a client in August of 2011. AR 56-57. 6 When asked about his work history, Plaintiff testified that he most recently worked as a 7 physical fitness training and life coach and was self-employed. AR 57. From 1991 to 2007, Plaintiff 8 was a graphic designer. AR 58. In 2003, Plaintiff lost his employment due to a disagreement with his 9 employer regarding his pay but he found a new employer in 2004. AR 59-60. From 2007 to 2008, 10 Plaintiff worked as a mortgage broker. AR 61-62. Plaintiff lost his employment in 2009 and began 11 having “issues” with his arms, causing him to seek employment that he could do standing up. AR 62. 12 In approximately 2010, Plaintiff began training for his physical fitness life coaching job but did not 13 earn any income. AR 62-63. In 2011, Plaintiff began his physical fitness training and life coaching job. 14 AR 63-64. Plaintiff testified that he had difficulty performing his work and could only see one or two 15 clients per week due to increased pain in his back and hips. AR 64-65. 16 Plaintiff testified that he has been diagnosed with severe degenerative disc disease, myofascial 17 pain syndrome, and insomnia. AR 65. He knows how to read and write and graduated from high 18 school. AR 65. Plaintiff has a driver’s license but cannot currently drive because the pain clinic where 19 he was being seen had not prescribed his medication since the previous month. AR 65. Plaintiff can 20 drive for short periods if he takes his pain medication but if he is in pain he has difficulty 21 concentrating and must lie down. AR 66. Plaintiff was driven to the hearing by a friend and was 22 mostly lying down with the front seat reclined while the friend drove. AR 66. 23 When asked about his daily activities, Plaintiff testified that he lives with friends and has his 24 own room. AR 67. He tries to keep it organized but needs assistance changing the sheets. AR 67. 25 Plaintiff can use the microwave and, when he is on pain medication, can cook eggs. AR 67. He can 26 dress himself and feed himself by using his left hand in a lying back position. AR 68. He has difficulty 27 brushing his teeth and taking showers but can go to the bathroom. AR 69. Plaintiff spends most of his 28 time listening audio books and does some yoga along with his physical therapy routine, which he 1 times to correspond with the limited windows of time when he feels well after taking his medication. 2 AR 70. Plaintiff testified that he had a microdiscectomy in 1999 or 2000 but has not had any other 3 surgeries. AR 71. 4 When questioned by his attorney, Plaintiff testified that he previously had trigger point 5 injections that did not help him and instead made his pain far worse and caused spasms in his back. 6 AR 72. Plaintiff has been using a cane for approximately two and a half years to support his hip and 7 take pressure off the top part of his body. AR 72. Plaintiff is 6’1” and weighs 125 pounds and testified 8 that he has lost weight in recent years because of lack of appetite and difficulty preparing meals. AR 9 72-73. 10 Plaintiff testified that his pain radiates and causes both of his hands to go numb. AR 73. If he 11 does not lie down, his right hand will lose motor function and his arm will twitch. AR 73. He estimates 12 that he can lift five to ten pounds with his right arm. AR 73. Plaintiff can typically be in a standing 13 position for five minutes before needing to sit down, although he can stand for ten to fifteen minutes if 14 needed. AR 74. He only gets out of the house for doctor’s appointments once a week. AR 74. Plaintiff 15 had an MRI in 2012 and two of his doctors are requesting additional MRIs, but he has had problems 16 obtaining them due to his insurance. AR 74-75. He has difficulty concentrating due to pain, which 17 improves when he takes pain medication. AR 75. However, the pain medication causes side effects 18 and makes it difficult for Plaintiff to think. AR 75. 19 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE Connie Guillory. The 20 VE testified that Plaintiff’s work as a graphic designer would be classified as sedentary and skilled 21 with a Specific Vocational Preparation of 7. AR 77. The ALJ also asked the VE hypothetical 22 questions. For the first hypothetical, the ALJ asked the VE to assume an individual similar to Plaintiff 23 in age, education and work experience that is limited to sedentary work such as graphic design, could 24 stand or walk for six out of eight hours and could not lift more than ten pounds. AR 77. The VE 25 testified that this individual could perform work as a graphic designer and there would be other work 26 as well but there would not be transferrable skills. AR 77. The hypothetical individual could perform 27 work as an usher, ticket taker, or information clerk, and the VE applied an erosion factor of twenty- 28 five to thirty percent. AR 78. 1 The ALJ then asked the VE if there were positions available that are sedentary where an 2 individual could alternate between sitting and standing. AR 78. The VE responded that it depended on 3 a person’s ability to use his or her hands, but examples included a ticket clerk with erosion of fifty to 4 sixty percent, a finisher with erosion of seventy-five percent, or an inspector with erosion of seventy- 5 five percent. AR 79. 6 For the next hypothetical, the ALJ asked the VE to assume an individual similar to Plaintiff in 7 age, education, and work experience that could neither sit nor stand for six out of eight hours but could 8 only crouch. AR 79. The VE testified that there would be no jobs available. AR 79. The VE further 9 testified that her testimony was consistent with the Dictionary of Occupational Titles, with the 10 exception of the erosion factors which were based on information from OSHA, the Department of 11 Labor, Census bureau, the VE’s experience performing job analysis ergonomic evaluations, and 12 professional journal publications. AR 79-80. 13 Finally, Plaintiff’s attorney asked the VE whether there would be further erosion of available 14 jobs if the individual in the first hypothetical had to use a cane for all ambulation. AR 80. The VE 15 testified that the individual would be restricted to sedentary positions. AR 80. 16 Medical Record 17 The relevant medical record was reviewed by the Court and will be referenced below as 18 necessary to the Court’s decision. 19 The ALJ’s Decision 20 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 21 determined that Plaintiff was not disabled under the Social Security Act. AR 35-50. Specifically, the 22 ALJ found that Plaintiff met the insured status requirements of the Social Security Act through June 23 30, 2014 and had not engaged in any substantial gainful activity since September 1, 2011, his alleged 24 onset date. AR 40. Further, the ALJ identified lumbar and cervical spine degenerative disc disease as 25 severe impairments. AR 40. However, the ALJ determined that Plaintiff did not have an impairment or 26 combination of impairments that met or medically equaled the severity of one of the listed 27 impairments. AR 40-41. Based on his review of the entire record, the ALJ determined that Plaintiff 28 retained the residual functional capacity (“RFC”) to perform light work except Plaintiff retains the 1 capacity to stand for six hours in an eight-hour workday and lift up to ten pounds. AR 41-44. With this 2 RFC, the ALJ found that Plaintiff could not perform any past relevant work, but there were other jobs 3 existing in significant numbers in the national economy that Plaintiff could perform. AR 44-45. The 4 ALJ therefore concluded that Plaintiff was not disabled under the Social Security Act. AR 46. 5 SCOPE OF REVIEW 6 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 7 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 8 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 9 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 10 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 11 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 12 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 13 considered, weighing both the evidence that supports and the evidence that detracts from the 14 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 15 evidence and making findings, the Commissioner must apply the proper legal standards. See, e.g., 16 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 17 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 18 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 19 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 20 REVIEW 21 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 22 substantial gainful activity due to a medically determinable physical or mental impairment which has 23 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 24 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 25 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 26 her age, education, and work experience, engage in any other kind of substantial gainful work which 27 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 28 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1 1990). 2 DISCUSSION4 3 Liberally construed, Plaintiff raises the following challenges to the ALJ’s decision in his 4 opening brief: (1) there is new evidence which warrants remand; (2) the ALJ erred in determining that 5 Plaintiff’s insomnia was not a severe impairment; (3) the ALJ erred in finding that Plaintiff did not 6 require a cane to ambulate; (4) the ALJ erred in failing to consider the side effects of Plaintiff’s 7 medications; (5) the ALJ erred in evaluating Plaintiff’s credibility; (6) the ALJ erred in evaluating the 8 medical opinion evidence; and (7) the Commissioner has altered and lost evidence and otherwise 9 engaged in bad faith conduct. (Doc. No. 21.)5 10 1. Plaintiffs’ New Evidence is Insufficient to Warrant Remand 11 Subsequent to his hearing, Plaintiff obtained a letter from Kekoa C. Ede, MD, dated July 1, 12 2015, a letter from Margaret Chen, MD, dated July 6, 2015, an RFC questionnaire from Bill 13 McCarberg, MD, dated June 30, 2016, and results of electromyography and nerve conduction velocity 14 testing performed by Shafi Khalid, MD, on May 21, 2015. (Doc. No. 21 at 12.) Plaintiff contends that 15 the Appeals Council should have found that this evidence was new and material and should have 16 remanded the case with instructions to reconsider his impairments and RFC. (Id.) The Commissioner 17 argues that the ALJ’s decision continued to be supported by substantial evidence in light of the 18 evidence submitted to the Appeals Council. (Doc. No. 22 at 14-15.) Moreover, Dr. McCarberg’s 19 opinion is extra-record evidence that was not presented to the Appeals Council and does not constitute 20 new and material evidence warranting remand. (Id. at 15-18.)6 21 22 4 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, 23 points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or brief is not to be construed that the Court did not consider the argument or brief. 24 5 Notably, Plaintiff requests that the Court to reverse the Appeals Council or find error with its decision in the 25 course of several of the arguments raised in Plaintiff’s briefing. (See Doc. No. 21 at 12-21.) Because the Court lacks jurisdiction to review the Appeals Council’s decisions as discussed further below, these arguments are construed as 26 requests for review of the ALJ’s decision wherever possible. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012) (“[W]e do not have jurisdiction to review a decision of the Appeals Council denying a request for 27 review of an ALJ's decision, because the Appeals Council decision is a non-final agency action.”) 28 6 The Commissioner’s briefing does not address the testing performed by Dr. Khalid. 1 Drs. Ede and Chen 2 According to the record, Plaintiff submitted the July 1, 2015 letter from Dr. Ede and the July 6, 3 2015 letter from Dr. Chen to the Appeals Council as part of his request for review of the ALJ’s 4 decision. AR 25, 28-30, 608. In denying review on November 17, 2016, the Appeals Council noted 5 that it considered the July 2015 letters from Drs. Ede and Chen, as well as a representative brief dated 6 September 17, 2015. AR 24. The Appeals Council considered whether the ALJ’s “action, findings, or 7 conclusion is contrary to the weight of the evidence currently of record” and “found that this 8 information does not provide a basis for changing the [ALJ’s] decision.” AR 22. 9 Social Security regulations permit claimants to submit new and material evidence to the 10 Appeals Council, which it must consider in determining whether to review the ALJ’s decision. See 11 Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). If new and material 12 evidence is submitted after the ALJ’s decision, the Appeals Council shall consider such evidence 13 “only where it relates to the period on or before the date of the [ALJ] hearing decision.” See 20 C.F.R. 14 § 404.970(b). The Appeals Council will overturn an ALJ’s decision only when it determines, after a 15 review of the entire record, including the new and material evidence, that the decision is contrary to 16 the weight of the evidence. Id. 17 In the Ninth Circuit, where a claimant has submitted additional materials to the Appeals 18 Council in requesting review of the ALJ's decision, the district court may consider the new evidence in 19 determining whether the ALJ’s decision is supported by substantial evidence “because the Appeals 20 Council addressed them in the context of denying [the claimant's] request for review.” Harman v. 21 Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) (citing Ramirez v. Shalala, 8 F.3d 1449 (9th Cir. 1993)); 22 see also Brewes, 682 F.3d at 1163 (holding that “when the Appeals Council considers new evidence in 23 deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative 24 record, which the district court must consider when reviewing the Commissioner’s final decision for 25 substantial evidence.”). However, courts “do not have jurisdiction to review a decision of the Appeals 26 Council denying a request for review of an ALJ’s decision, because the Appeals Council decision is a 27 non-final agency action.” Brewes, 682 F.3d at 1161. “When the Appeals Council declines review, the 28 ALJ’s decision becomes the final decision of the Commissioner...and the district court reviews that 1 decision for substantial evidence, based on the record as a whole.” Id. at 1161–62 (citation and 2 quotation marks omitted). While the Court considers the evidence submitted to the Appeals Council in 3 conjunction with the rest of the record in reviewing the ALJ’s decision, “the Court cannot remand 4 based solely on the actions of the Appeals Council[.]” Berschneider v. Colvin, 2015 WL 1497835, at 5 *9 (E.D. Cal. Mar. 31, 2015). 6 Plaintiff's argument that this case should be remanded to the ALJ so that he may consider the 7 new evidence from Drs. Ede and Chen is misplaced. The Appeals Council has already considered this 8 evidence and found that it does not provide a basis for changing the ALJ's decision. AR 22. “The 9 Appeals Council is not required to provide a ‘detailed rationale’ or make any particularized 10 evidentiary showing as to why it rejected a post hearing opinion.” Moreno v. Colvin, 2015 WL 11 966090, at *4 (E.D. Cal. Mar. 4, 2015) (citing Taylor v. Comm. of Soc. Sec. Admin., 659 F.3d 1228, 12 1233 (9th Cir. 2011); Warner v. Astrue, 859 F.Supp.2d 1107, 1115 (C.D. Cal. 2012); Crater v. 13 Astrue, 2012 WL 3106625, *5 (C.D. Cal. July 30, 2012)). The issue before this Court is not whether 14 the Appeals Council should have remanded the case to the ALJ with instructions to consider Drs. Ede 15 and Chen’s opinions, but rather whether the Commissioner's determination that Plaintiff is not 16 disabled is supported by substantial evidence in light of the post-hearing medical reports. Accordingly, 17 the Court considers this evidence in reviewing the administrative record. Lopez v. Colvin, 2015 WL 18 1469035, at *5 n. 3 (E.D. Cal. Mar. 30, 2015). However, a review of the record reveals that Drs. Ede 19 and Chen’s July 2015 letters do not undermine the ALJ’s decision. 20 Dr. Ede’s July 1, 2015 letter states that Plaintiff “has been a behavioral health patient of [Dr. 21 Ede] since 5/23/12.” AR 608. Dr. Ede sees Plaintiff “for chronic insomnia” but “his foremost 22 complaints have been of chronic pain.” Id. Dr. Ede describes Plaintiff’s reports of his pain as well as 23 treatment he has received from other medical professionals. Id. According to Dr. Ede, “[o]ver the past 24 several years, he has crouched or laid down in the office while talking to me to try and relieve his 25 pain.” Id. Dr. Ede also reports that Plaintiff has “chronic insomnia and has required high doses of 26 medications to help with sleep. Id. “[Plaintiff’s] sleep pattern is unique in that he times his sleep 27 around doses of the pain medication as otherwise he feels that he can’t sleep due to back pain.” Id. Dr. 28 Ede then opines that, “[d]ue to the above reasons, I do not feel that [Plaintiff] would be able to work in 1 any field for at least a year.” Id. 2 Dr. Ede bases his opinions regarding Plaintiff’s functional limitations on Plaintiff’s subjective 3 complaints of chronic pain, his diagnosis of myofascial pain from another provider, and a lumbosacral 4 x-ray in April of 2012 showing severe degenerative disc disease at the L5-S1 level. AR 608. However, 5 the ALJ considered Plaintiff’s subjective complaints and found that his statements concerning the 6 intensity, persistence, and limiting effects of his symptoms were not entirely credible. AR 41-44. The 7 ALJ also considered the objective medical evidence Dr. Ede cites in developing Plaintiff’s RFC. See 8 AR 42. Moreover, Dr. Ede does not explain how this evidence supports his conclusion that Plaintiff is 9 unable to work in any field for at least a year. See Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 10 1985) (“Conclusory opinions by medical experts regarding the ultimate question of disability are not 11 binding on the ALJ”) (citing 20 C.F.R. § 416.927). With respect to Plaintiff’s insomnia, as the ALJ 12 noted in his finding that this impairment was non-severe, Dr. Ede’s own treatment notes do not 13 indicate any visible fatigue and routinely state that Plaintiff was observed to be in no acute distress. 14 AR 426, 428, 432, 435, 441, 443-444, 447, 450, 453, 457, 462, 481, 484, 487, 490, 494, 498, 502, 15 509, 513, 517, 521, 524, 528, 531, 534, 542, 545, 547, 550, 553. Further, treatment notes indicate that 16 Plaintiff’s insomnia has improved with medication, which Dr. Ede’s July 2015 letter acknowledges by 17 stating that high doses of medication help Plaintiff with sleep. AR 425, 428, 431, 437, 440, 446, 455, 18 457, 459, 608. 19 Dr. Chen’s July 6, 2015 opinion provides, in turn, that Plaintiff “has conditions such as 20 myofascial pain, lumbar disk disease and chronic pain syndrome.” AR 608. Dr. Chen reports that she 21 first saw Plaintiff in December 2012 and Plaintiff has been to several doctors and other practitioners. Id. 22 Dr. Chen states that Plaintiff’s condition has not improved, he has been losing weight, and he is not able 23 to take care of himself. Id. Furthermore, Plaintiff is not able to stand more than two hours at a time, is 24 unable to do any heavy lifting, and his prognosis is poor. Id. 25 Dr. Chen’s July 2015 letter likewise does not adequately explain how Plaintiff’s condition 26 precludes him from working. AR 608. Dr. Chen does not identify any objective medical evidence or 27 any other bases for her opinions that Plaintiff cannot do any heavy lifting and cannot stand more than 28 two hours at a time. Lambert v. Saul, 2019 WL 4688636, at *6–7 (E.D. Cal. Sept. 26, 2019) (finding 1 that a note from a physician that a plaintiff “could not ‘walk or ambulate for 3 hours’” submitted for 2 the first time to the Appeals Council did not undermine the ALJ’s decision where it was “not 3 supported by any explanation.”). Furthermore, it is unclear what Dr. Chen intends by the term “heavy 4 lifting” in the context of Plaintiff’s functioning. There also does not appear to be any support in the 5 medical record for the limitations set forth in Dr. Chen’s letter. At best, Dr. Chen’s letter appears to 6 indicate that Plaintiff’s symptoms have not improved, and he has “poor prognosis” in an equivocal and 7 unqualified sense. 8 The opinions set forth in Drs. Ede and Chen’s July 2015 letters are conclusory and lack detail 9 regarding Plaintiff’s functional abilities and how Plaintiff’s condition prevents him from working. 10 These letters are primarily a recitation of Plaintiff’s subjective complaints and past medical history. 11 Both letters are contradicted by the opinions of State Agency medical consultants R. Masters, M.D. 12 and S. Lee, M.D., and of consultative examiner B. Thomas, D.O., all of whom opined that Plaintiff’s 13 functional limitations were less restrictive than those opined by Drs. Ede and Chen. They are further 14 unsupported by treatment notes and inconsistent with the medical record as a whole. Accordingly, Drs. 15 Ede and Chen’s July 2015 letters do not rise to a degree of probative value such that, in light of them, 16 substantial evidence no longer supports the ALJ's findings. Hill v. Astrue, 2012 WL 4090171, at *15 17 (E.D. Cal. Sept. 17, 2012); Ortiz v. Comm'r of Soc. Sec., 2015 WL 925591, at *4 (E.D. Cal. Feb. 27, 18 2015). While the July 2015 letters are relevant and material to the extent the Appeals Council included 19 them in the record, the ALJ’s findings are nonetheless supported by substantial evidence when this 20 evidence is considered in the context of the entire record. 21 Drs. McCarberg, and Khalid 22 Although Plaintiff claims that Dr. McCarberg’s June 30, 2016 RFC questionnaire and the May 23 21, 2015 electromyography and nerve conduction velocity testing performed by Dr. Khalid were 24 submitted to the Appeals Council, they are not identified in the materials the Appeals Council 25 considered in denying Plaintiff’s requests for review. AR 24. The Appeals Council’s May 24, 2018 26 denial of Plaintiff’s request that his claim be reopened likewise does not reference this evidence, and 27 they are not identified in any of the correspondence between Plaintiff’s counsel and the Appeals 28 Council. AR 2-19. Plaintiff contends that the Commissioner “lost” this evidence but has not provided 1 any support for this assertion as discussed further below. 2 In this situation, Plaintiff is asking the Court to review new evidence that was not submitted 3 during the administrative proceedings. The submission of new evidence to the trial court is governed 4 by 42 U.S.C. § 405(g) which requires the claimant to show that the new evidence is material and there 5 was good cause for the failure to incorporate the evidence into the record in the prior proceeding. Booz 6 v. Sec'y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984). 7 “To be material under section 405(g), the new evidence must bear ‘directly and substantially 8 on the matter in dispute.” Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (quoting Ward v. 9 Schweiker, 686 F.2d 762, 764 (9th Cir. 1982)). Further, new evidence requires remand “only where 10 there is a reasonable possibility that the new evidence would have changed the outcome of the 11 Secretary's determination had it been before him.” Booz, 734 F.2d at 1380 (quoting Dorsey v. Heckler, 12 702 F.2d 597, 604–605 (5th Cir. 1983)). Good cause is established where the material was unavailable 13 earlier. Mayes, 276 F.3d at 463. 14 Here, the May 21, 2015 electromyography and nerve conduction velocity testing performed by 15 Dr. Khalid states that all nerve conduction studies were within normal limits and all F Wave latencies 16 were within normal limits. (Doc. No. 21 at Ex. 1A.) Needle evaluation of the right tibilias anterior, 17 right peroneous long, left tibialis anterior, and left peroneous long showed increased motor unit 18 amplitude. (Id.) All remaining muscles showed no evidence of electrical instability. (Id.) 19 Dr. McCarberg’s June 30, 2015 RFC questionnaire opines, in relevant part, that Plaintiff can 20 walk for less than one block, sit for a maximum of five minutes at a time, stand for a maximum of five 21 minutes at a time, and sit and stand/walk a total of less than two hours in an eight-hour work day with 22 normal breaks. (Doc. No. 21 at Ex. 1A.) Plaintiff needs to walk around for four minutes at a time 23 every thirty minutes in an eight-hour work day. (Id.) He could rarely lift less than ten pounds and 24 never lift ten pounds or more. (Id.) Plaintiff could rarely twist or climb stairs and could never stoop, 25 bend, crouch, squat, or climb ladders. (Id.) Dr. McCarberg listed Plaintiff’s diagnoses as fibromyalgia 26 and degenerative disc disease, identified his prognosis as stable, and stated that the clinical findings 27 and objective signs upon which his opinion was based included elevated blood pressure, multiple 28 tender points, and widespread pain. (Id.) 1 As an initial matter, it is unlikely that Drs. Khalid and McCarberg’s opinions would meet the 2 materiality standard. Dr. Khalid’s testing reveals some increased motor unit amplitude, but results 3 were generally within normal limits. Dr. Khalid’s report says nothing about Plaintiff’s ability to work 4 or engage in activities. Additionally, Dr. McCarberg’s opinion regarding Plaintiff’s RFC is 5 inconsistent with his own treatment notes which state Plaintiff’s pain and functioning improved with 6 medication and he was able to ambulate, care for his own personal needs, clean around the house, 7 shop, cook, and put food away. AR 395-412, 417-420, 477-482, 486-504, 508- 519, 523-526. Dr. 8 McCarberg’s opinion is also contradicted by every other medical opinion in the record, including 9 those from Drs. Ede and Chen, all of which state that Plaintiff’s functional limitations were 10 significantly less restricted. See AR 82-92, 106-116, 388-394, 608 11 However, the question of whether the new evidence is material appears to be moot because 12 Plaintiff has not established good cause for his failure to submit this evidence during the 13 administrative proceedings. Plaintiff argues that the Appeals Council “lost” Dr. McCarberg’s June 30, 14 2016 RFC questionnaire and the May 21, 2015 testing performed by Dr. Khalid. (Doc. No. 13 at 12.) 15 However, there is nothing in the record indicating that these opinions were ever provided to the 16 Appeals Council. Plaintiff does not identify when these documents were purportedly transmitted to the 17 Appeals Council or provide any evidence that they were received.7 18 Plaintiff otherwise does not address whether there is good cause for the failure to present the 19 new evidence in the administrative proceedings. “A claimant does not meet the good cause 20 requirement by merely obtaining a more favorable report once his or her claim has been denied. To 21 demonstrate good cause, the claimant must demonstrate that the new evidence was unavailable 22 earlier.” Mayes, 276 F.3d at 463. A claimant must also demonstrate good cause for failing to seek the 23 expert’s opinion earlier. Id. Here, Plaintiff fails to explain why he did not seek or could not have 24 obtained this evidence earlier. Notably, Dr. McCarberg’s RFC questionnaire states that he had been 25 26 7 Although the copies of Drs. Khalid and McCarberg’s opinions attached to Plaintiff’s brief contains a header 27 indicating that these documents were faxed to someone on March 9, 2017, there is no cover page or provided, only pages four through eight of the transmission are included, and the sender and recipient are not identified. (See Doc. No. 21 at Ex. 28 1A.) 1 treating Plaintiff monthly since August of 2013. (Doc. No. 21 at Ex. 1A.) Although Drs. Khalid and 2 McCarberg’s reports were not prepared until May and June of 2015, respectively, Plaintiff was aware 3 of the underlying issues at the time of the hearing and it instead appears that, when he was 4 unsuccessful at the hearing, he sought opinions that might better support his claim. “The ‘good cause’ 5 requirement would be meaningless if such circumstances were sufficient to allow introduction of new 6 evidence.” Allen v. Sec'y of Health and Human Serv., 726 F.2d 1470, 1473 (9th Cir. 1984). Dr. 7 Khalid’s testing results and Dr. McCarberg’s RFC questionnaire were therefore not “unavailable” in 8 any meaningful sense at the time of the hearing; they simply did not yet exist because of Plaintiff’s 9 failure to obtain them. Duncan v. Astrue, 2012 WL 4433523, at *7–8 (E.D. Cal. Sept. 24, 2012). 10 Accordingly, Plaintiff has not met his burden and the Court declines to consider this evidence. 11 2. The ALJ Did Not Err in Evaluating Plaintiff’s Insomnia 12 Plaintiff also argues that the ALJ should have found that his insomnia was a severe 13 impairment. (Doc. No. 21 at 12.) The Commissioner, in turn, contends that the record does not 14 established that Plaintiff’s insomnia significantly limited any workplace activities and Plaintiff failed 15 to meet his burden of establishing that this impairment was severe. (Doc. No. 22 at 7-8.) The Court 16 agrees. 17 At step two of the Social Security Administration’s five-step sequential evaluation process, the 18 claimant must make a “threshold showing” that (1) he has a medically determinable impairment or 19 combination of impairments and (2) the impairment or combination of impairments is severe. Bowen 20 v. Yucket, 482 U.S. 137, 146-47 (1987); see also 20 C.F.R. §§ 404.1520(c), 416.920(c). 21 An impairment is “severe” if it significantly limits a claimant's ability to perform basic work activities 22 for at least a consecutive twelve-month period. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); 23 SSR 96–3p, 2018 WL 3461816 (June 14, 2018). Thus, the burden of proof is on the claimant to 24 establish a medically determinable severe impairment that significantly limits his physical or mental 25 ability to do basic work activities, or the “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. 26 §§ 404.1521(a), 416.921(a). The plaintiff has the burden of establishing the severity of the impairment 27 by providing medical evidence consisting of signs, symptoms, and laboratory findings. See 20 C.F.R. 28 §§ 404.1508, 416.908. The plaintiff's own statement of symptoms alone is insufficient. See id. Indeed, 1 “[t]he mere existence of an impairment is insufficient proof of a disability.” Matthews v. Shalala, 10 2 F.3d 678, 680 (9th Cir. 1993). 3 Here, the ALJ found that Plaintiff’s insomnia caused “no more than minimal functional 4 limitations, singly or in combinations with his other impairments” and was therefore non-severe. AR 5 40. The ALJ noted that progress notes diagnosed Plaintiff with insomnia but there was “little to no 6 indication of visible fatigue and [Plaintiff] was routinely observed to be in no acute distress.” (Id.) 7 In support of his argument that his insomnia is severe, Plaintiff cites to medical records from 8 2011 which indicate his medication was not working, Dr. Ede’s July 2015 opinion that Plaintiff has 9 “chronic insomnia and has required high doses of medications to help with sleep[,]” and Plaintiff’s 10 testimony that he has a cognitive impairment caused by his insomnia. (Id.) According to Plaintiff, the 11 medical evidence indicates his insomnia significantly limits his ability to do work activities and the 12 ALJ’s finding that Plaintiff’s insomnia is non-severe is conclusory. (Id.) Furthermore, Plaintiff 13 contends that the ALJ’s finding that the medical evidence demonstrated “little to no indication of 14 visible fatigue and [Plaintiff] was routinely observed to be in no acute distress” was incorrect because 15 “[a] major symptom of a severe sleep disorder like mine is that the less sleep I get, the less tired I am 16 and the more difficult it is to sleep. Signs of fatigue may not be evident without testing cognitive and 17 physical function.” (Id. at 13.) 18 Plaintiff fails to prove that his insomnia is severe such that it significantly limits his ability to 19 do basic work activities. Although Plaintiff was diagnosed with insomnia, this alone is insufficient to 20 warrant a finding of a severe impairment at step two, as the mere existence of an impairment, or even 21 multiple impairments, does not establish severity. Matthews, 10 F.3d at 680; see also Hinkle v. Apfel, 22 132 F.3d 1349, 1352 (10th Cir. 1997) (citing Bowen v. Yuckert, 482 U.S. 137, 153 (1987)) (“[T]he 23 claimant must show more than the mere presence of a condition or ailment.”); Holaday v. Colvin, 24 2016 WL 880971, at *12 (E.D. Cal. Mar. 8, 2016) (“The mere fact that plaintiff was diagnosed with 25 such conditions is, by itself, insufficient to demonstrate that they were ‘severe’ for step two 26 purposes.”); Mahan v. Colvin, 2014 WL 1878915, at *2 (C.D. Cal. May 12, 2014) (“[A] mere 27 diagnosis does not establish a severe impairment.”). Plaintiff points to records from 2011 stating that 28 his medication was not working, but Dr. Ede’s July 2015 letter and treatment notes indicate that 1 Plaintiff’s insomnia had improved and was being controlled with medication. AR 425, 428, 431, 437, 2 440, 446, 455, 457, 459, 608. 3 Likewise, Plaintiff’s citation to his own testimony does not establish that his insomnia was 4 severe as the ALJ found Plaintiff’s testimony regarding the intensity, persistence, and limiting effects 5 of his symptoms to not be entirely credible. “The ALJ is responsible for determining credibility, 6 resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 7 1035, 1039 (9th Cir. 1995). While Plaintiff argues that the ALJ’s finding is conclusory, this argument 8 is unavailing as the Court is able to reasonably discern the ALJ’s path for the purpose of review. See 9 Brown-Hunter v. Colvin, 806 F.3d 487, 493-494 (9th Cir. 2015). Plaintiff’s argument that tests for 10 “cognitive and physical function” would undermine the ALJ’s findings is likewise unpersuasive as 11 Plaintiff has the burden at step two to establish that his impairments are severe, and he did not submit 12 any such testing. Consequently, the Court finds no error with the ALJ’s conclusion that Plaintiff’s 13 insomnia is non-severe. 14 3. The ALJ Did Not Err in Evaluating Plaintiff’s Use of a Cane 15 Plaintiff contends that the ALJ failed to consider his need for a cane in developing his RFC. 16 (Doc. No. 21 at 13.) Specifically, the ALJ erred in determining Plaintiff can perform light work 17 because “[a]n individual who requires a can[e] for ambulation cannot perform the standing, walking, 18 and lifting entailed in the performance of light work.” (Id.) The Commissioner argues that the ALJ 19 found that Plaintiff did not need a cane and this finding was supported by substantial evidence. (Doc. 20 No. 22 at 8.) 21 Here, the ALJ found that, “[a]lthough [Plaintiff] alleged he requires the use of a cane, progress 22 notes do not consistently show significant and persistent deficits in strength or other neurologic 23 deficits that support the need to use a cane continually for all ambulation.” AR 43. The ALJ cited to 24 recent progress notes indicating that Plaintiff had a normal gait, including heel and toe walking, and 25 full motor strength in all four extremities. Id. 26 In support of his argument, Plaintiff notes that he was given a cane in November 2012, and the 27 following month Dr. Chen’s progress notes include Plaintiff’s report that the cane was helping. AR 28 371, 367. (Doc. No. 21 at 13.) The following year, consultative examiner Dr. Thomas noted that 1 Plaintiff had been using the cane for nine months. AR 389. (Doc. No. 21 at 13.) Plaintiff additionally 2 argues that the ALJ ignored testimony and medical evidence indicating “limited use and pain in the 3 [right] arm and shoulder, the only upper extremity not being used for ambulation with a cane.” (Doc. 4 No. 21 at 13.)8 5 However, the notations and subjective reports Plaintiff cites do not undermine the ALJ’s 6 finding that it was necessary for all ambulation. During a visit with Physicians Assistant Andres Bravo 7 on November 26, 2012, Plaintiff requested and was provided a donated cane. AR 371. Although 8 Plaintiff reported using a cane to Dr. Thomas on September 10, 2013, examination revealed no muscle 9 atrophy and good standing balance. AR 390. On October 2, 2013, Plaintiff reported that medication 10 was improving his pain and he occasionally could walk around without his cane. AR 440. On October 11 15, 2013, Plaintiff reported that his medication was helping his functioning and his activity had 12 improved somewhat and his pain levels had decreased. AR 512. On November 12, 2013, progress 13 notes indicated that Plaintiff’s medication was helping his pain and he had been more active cleaning 14 around the house and was out of bed more. AR 505. On December 2, 2014, Plaintiff reported that his 15 medication helped him be active and spend time out of bed. AR 486. On January 29, 2015, Plaintiff 16 reported his medication was controlling his pain sufficiently to allow him to ambulate and care for his 17 own personal needs. AR 477. As the ALJ noted in his finding, the most recent progress notes dated 18 March 5, 2015 showed Plaintiff had a normal gait, including heel and toe walking, and full motor 19 strength in all four extremities. AR 604. There are no physicians’ opinions, treatment notes, or other 20 objective medical evidence in the record stating that Plaintiff required a cane for ambulation. Although 21 Plaintiff testified that he needed a cane, the ALJ found Plaintiff’s testimony to not be credible. AR 43. 22 Additionally, the evidence Plaintiff identifies in support of his argument that the ALJ “ignored” 23 relevant evidence is consistent with the evidence cited in the ALJ’s opinion. See AR 41-44. Plaintiff 24 does not cite to any evidence that the ALJ did not consider in reaching his decision. 25 26 8 Plaintiff also argues that the Appeals Council erred because it “ignored the evidence in Dr. McCarberg’s RFC 27 questionnaire” regarding his functional limitations. (Doc. No. 21 at 13.) However, as discussed above, the Court lacks jurisdiction to review the Appeals Council’s decision and there is additionally nothing in the record or in Plaintiff’s brief 28 indicating that the Appeals Council ever received this evidence. See Brewes, 682 F.3d at 1161. 1 The Court accordingly finds that the ALJ’s finding that Plaintiff did not need to use a cane to 2 ambulate was supported by substantial evidence. Thus, the ALJ was not required to incorporate 3 Plaintiff’s use of a cane in the RFC. 4 4. The ALJ Did Not Err in Evaluating the Side Effects of Plaintiff’s Medications. 5 Plaintiff contends that the ALJ erred by failing to acknowledge and include the dosage, 6 effectiveness, and side effects of his medications in his RFC finding. (Doc. No. 21 at 14.) However, 7 according to the Commissioner, Plaintiff only argues that his medication “could” cause side effects 8 and has not pointed to any evidence supporting this argument. (Doc. No. 22 at 11-12.) 9 Plaintiff testified that his pain medication makes it difficult to think. AR 75. Dr. McCarberg 10 first prescribed Percocet to manage Plaintiff’s pain on August 13, 2013. AR 523. Plaintiff initially 11 reported that he experienced irritability, trouble sleeping, and constipation and “at first had mild 12 behavioral side effects” causing him to take a half tab rather than a whole tab. AR 516, 520. However, 13 on November 27, 2013, Plaintiff told Dr. Chen that he was doing “fairly well” with his current pain 14 management medication. AR 505. On December 10, 2013, Plaintiff reported to Dr. McCarberg that he 15 felt his “memory and cognitive deficit [was] recovering” with pain medication. AR 501. On March 18, 16 2014, and June 9, 2014, Plaintiff again reported to Dr. McCarberg that his “cognitive functioning” had 17 improved. AR 493. Subsequent progress notes from Drs. Chen and McCarberg do not mention any 18 reports of difficulty thinking or other side effects from Plaintiff’s medication. AR 477-492. 19 The only evidence in the record that Plaintiff continued to experience side effects from his 20 medication is his testimony that he had difficulty thinking. AR 75. Progress notes otherwise indicate 21 that Plaintiff initially experienced some mild side effects that were resolved. Plaintiff’s briefing does 22 not describe any side effects he experiences from his medication or cite to any objective evidence in 23 support of his argument. Instead, Plaintiff merely lists the medications he is on and contends that some 24 are prescribed at high doses. (Doc. No. 21 at 13-14.) 25 When no objective evidence in the record suggests that a claimant's ability to work was 26 hampered by his or her medications, an ALJ is not required to include a discussion of side effects in 27 the hearing decision. Atchison v. Astrue, 2012 WL 3143871, at *12–13 (E.D. Cal. Aug. 1, 2012); see 28 also Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (finding that since the claimant had never 1 raised the issue of fatigue with his doctors, the ALJ properly limited his hypothetical questions to 2 medical assumptions with objective support in the record); Bayliss v. Barnhart, 427 F.3d 1211, 1217 3 (9th Cir. 2005) (holding that an ALJ is not required to prepare a function-by-function report for 4 medical conditions or impairments that the ALJ found neither credible nor supported by the 5 record); Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985) (refusing to require the ALJ to address 6 the effect of claimant's narcotic use on his ability to work where the claimant had produced no 7 evidence showing that the narcotics so affected him); Morillas v. Astrue, 371 Fed.Appx. 880, 883 (9th 8 Cir. 2010) (finding that the ALJ reasonably discounted the claimant's testimony that 9 her medications made her drowsy where she had neither complained to her physicians of drowsiness 10 nor introduced evidence that her medications affected her functional ability). Because there is no 11 objective evidence confirming Plaintiff's subjective claim of difficulty thinking, the ALJ did not err in 12 failing to acknowledge and discuss the type, dosage, effectiveness, and side effects of Plaintiff’s 13 medications. 14 5. The ALJ Did Not Err in Evaluating Plaintiff’s Subjective Complaints. 15 According to Plaintiff, the ALJ’s reasons for discounting his credibility “were based on errors 16 of fact, selective review of the record, and . . . misrepresent[ed] the record.” (Doc. No. 21 at 14-15.) 17 The Commissioner argues that the ALJ provided valid reasons, supported by substantial evidence, for 18 discounting Plaintiff’s subjective complaints. (Doc. No. 22 at 9-12.) 19 In deciding whether to admit a claimant’s subjective complaints of pain, the ALJ must engage 20 in a two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm'r of 21 Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). First, the claimant must produce objective 22 medical evidence of his impairment that could reasonably be expected to produce some degree of the 23 symptom or pain alleged. Garrison, 759 F.3d at 1014. If the claimant satisfies the first step and there is 24 no evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of his 25 symptoms only by offering specific, clear and convincing reasons for doing so. Id. at 1015. 26 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 27 expected to cause the alleged symptoms, but rejected his statements concerning the intensity, 28 persistence and limiting effects of those symptoms. AR 41. The ALJ did not find that Plaintiff was 1 malingering and was therefore required to provide specific, clear and convincing reasons for 2 discounting Plaintiff’s testimony. 3 First, the ALJ discounted Plaintiff’s statements based on the objective medical evidence. AR 4 41. Although lack of supporting medical evidence cannot form the sole basis for discounting 5 testimony, it is a factor that the ALJ can consider. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 6 2005). The ALJ linked Plaintiff’s testimony that he found not to be credible to particular parts of the 7 record. The ALJ first summarized Plaintiff’s testimony regarding the persistence, intensity, frequency, 8 and limiting effects of his pain. AR 41. The ALJ then detailed the specific medical evidence in the 9 record that did not support that testimony. AR 42-43. In light of the ALJ’s extensive discussion and 10 comparison of the relevant testimony to the record, the Court is satisfied that the medical evidence in 11 the record was adequately considered. Thus, the Court finds no error with the ALJ’s determination that 12 Plaintiff’s testimony was inconsistent with the objective evidence and physical examinations. 13 The ALJ also discounted Plaintiff’s testimony due to evidence in the record suggesting he had 14 exaggerated his symptoms and limitations. AR 43. The ALJ cited to Dr. Dunlap’s assessment that 15 Plaintiff had a “myriad of complaints” but no objective findings of radiculopathy, including no 16 neurologic deficits. AR 43. Plaintiff argues this assessment is inaccurate in light of Dr. Khalid’s May 17 21, 2015 testing. (Doc. No. 21 at 14.) However, Plaintiff did not provide Dr. Khalid’s testing results to 18 the ALJ. Additionally, as discussed above, there is no indication this evidence was ever submitted to 19 the Appeals Council and Plaintiff did not establish that it was material and he had good cause for his 20 failure to do so. 21 The ALJ additionally cited to treatment notes from the UC San Diego Health System Pain 22 Clinic indicating Plaintiff had requested opioids, which he claimed to have previously avoided. AR 43. 23 However, a prescription database revealed he had three prescriptions for oxycodone in previous 24 months. Id. The ALJ’s opinion states when Plaintiff was “confronted with this information, [Plaintiff] 25 raised his voice and demanded a prescription for opioids or a referral to a physician who would 26 prescribe them.” AR 43. Plaintiff argues that this misconstrues the evidence because the relevant 27 treatment notes say nothing about “confronting” Plaintiff with this information or Plaintiff being 28 dishonest. (Doc. No. 21 at 14.) However, the treatment notes state that Plaintiff “demanded a 1 prescription for opioids, and when he was told that opioids were not indicated for his pain syndrome, 2 he raised his voice and demanded a ‘referral’ to a physician who would prescribe opioid medications.” 3 AR 342. When Plaintiff was informed that the clinic could not to that, and the ultimate decision to 4 prescribe or not would be left to Plaintiff’s primary care physician, Plaintiff left the clinic. Id. 5 The ALJ’s assessment that Plaintiff was “dishonest” about his opioid medication was a 6 reasonable inference from the objective evidence stating Plaintiff claimed to have “avoided” opioids 7 while a prescription database revealed opioids had been recently prescribed, as well as the description 8 of Plaintiff’s demands for opioids and his response to the clinic’s refusal to provide them. While, as 9 Plaintiff notes, Dr. McCarberg subsequently determined opioid therapy to be appropriate, the ALJ’s 10 finding remains supported by substantial evidence. Where “the evidence can reasonably support either 11 affirming or reversing a decision, we may not substitute our judgment for that of the [ALJ].” Parra v. 12 Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (citation omitted). It is not this Court’s function to second 13 guess the ALJ and reevaluate the evidence. See Gallardo v. Astrue, 2008 WL 4183985 at *11 (E.D. 14 Cal. Sept. 10, 2008) (“The role of this Court is not to second guess the ALJ and reevaluate the 15 evidence, but rather it must determine whether the decision is supported by substantial evidence and 16 free of legal error.”); see also German v. Comm'r of Soc. Sec., 2011 WL 924737 at *11-12 (E.D. Cal. 17 Mar. 14, 2011) (“[i]t is not for this court to reevaluate the evidence”). The Court finds no error with 18 the ALJ’s assessment of the evidence in finding that Plaintiff had been dishonest about his opioid 19 medication use. 20 The ALJ also discounted Plaintiff’s subjective symptom testimony because he had received 21 treatment for his impairments that was essentially routine and/or conservative in nature. AR 43. 22 Evidence that a plaintiff responded positively to conservative treatment can undermine her claim of 23 disabling pain. See Warre v. Comm’r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 24 (“Impairments that can be controlled effectively with medication are not disabling[.]”). 25 The ALJ also noted that Plaintiff had stopped performing substantial gainful activity well 26 before his alleged onset date. AR 43. Plaintiff disputes this contention and argues that the ALJ ignored 27 evidence. (Doc. No. 21 at 14.) However, Plaintiff concedes that his impairments “started in 2009 and I 28 was partially disabled between 2009 and 2011.” (Id.) As the ALJ noted, Plaintiff’s earnings records 1 show that he last had substantial earnings in 2008, which is before 2009 when Plaintiff contends that 2 his issues began and he became “partially disabled.” See AR 43, 227-230; see also 20 C.F.R. § 3 404.1574(b). 4 In light of the foregoing, the Court concludes that the ALJ’s interpretation of the evidence was 5 reasonable and he made the requisite specific findings to reject Plaintiff’s subjective symptom 6 testimony. 7 6. The ALJ Did Not Err in Evaluating the Medical Opinion Evidence. 8 Plaintiff argues that the ALJ and the Appeals Council erred by failing to give Drs. McCarberg, 9 Ede, and Chen’s assessments greater weight than the opinions of state agency physicians Drs. Masters 10 and Lee and consultative examiner Dr. Thomas. (Doc. No. 21 at 14-17.) 11 Cases in this circuit identify three types of physicians: (1) those who treat the claimant 12 (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and 13 (3) those who neither examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 14 F.3d 821, 830 (9th Cir. 1995). As a general rule, more weight should be given to the opinion of a 15 treating source than to the opinions of doctors who do not treat the claimant. Id. Where a treating 16 physician’s opinion is not contradicted by another doctor, it may be rejected only for “clear and 17 convincing” reasons. Id. If the treating physician’s opinion is contradicted by another doctor, the 18 Commissioner must provide “specific and legitimate” reasons supported by substantial evidence in the 19 record to reject this opinion. Id. The ALJ meets this burden by setting out a detailed and thorough 20 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making 21 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 22 As the ALJ noted in his decision, the record did not contain any opinions from treating 23 physicians regarding Plaintiff’s functional limitations. AR 43. Plaintiff only provided progress notes 24 from Drs. McCarberg, Ede, and Chen, and the ALJ considered this evidence in determining Plaintiff’s 25 RFC. AR 42. However, those progress notes did not provide any assessment of the effects that 26 Plaintiff’s medical conditions had on his ability to work. See AR 345-387, 395-564. Because these 27 medical records “did not contain any functional limitations, they were not probative as to what kind of 28 work plaintiff could perform despite his impairments and, therefore, the ALJ was not required to 1 formally assess, or even discuss, them.” Arredondo v. Colvin, 2016 WL 1162659, at *6 (E.D. Cal. 2 Mar. 24, 2016) (citations omitted). This is because an ALJ can disregard a medical report that does 3 “not show how [a claimaint's] symptoms translate into specific functional deficits which preclude 4 work activity.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999); see 5 also Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995) (Medical records that “make only 6 limited references to medically observed limitations on functional capacity…fall short of the 7 substantial medical evidence required to establish a disability.”); Meanel, 172 F.3d at 1113- 8 14; Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (ALJ did not err in failing 9 to discuss or afford weight to medical reports that were not significant probative evidence). 10 While Drs. Ede and Chen’s July 2015 letters contained some functional limitations, as 11 previously discussed this evidence was not before the ALJ and was submitted to the Appeals Council 12 after the ALJ’s decision was rendered. For the same reasons discussed above, the Court does not have 13 jurisdiction to review the Appeals Council’s decision and the Appeals Council was not required to 14 provide a detailed rationale or make any particularized evidentiary showing as to why it rejected a post 15 hearing opinion. Moreover, the ALJ’s decision remains supported by substantial evidence in light of 16 Drs. Ede and Chen’s July 2015 opinions. 17 Similarly, Plaintiff argues that the Appeals Council should have given great weight to Dr. 18 McCarberg’s June 30, 2016 RFC questionnaire and the May 21, 2015 testing performed by Dr. 19 Khalid. (Doc. No. 21 at 16-17.) However, this evidence is dated after the ALJ’s decision was issued 20 and there is no indication it was ever submitted to the Appeals Council. As previously discussed, 21 Plaintiff has not established that it is material and there was good cause for the failure to incorporate 22 the evidence into the record in the prior administrative proceeding. 23 Finally, Plaintiff contends that the ALJ selectively analyzed the record in evaluating the 24 medical evidence. (Doc. No. 21 at 15.) However, “in interpreting the evidence and developing the 25 record, the ALJ does not need to discuss every piece of evidence.” Howard ex rel. Wolff v. Barnhart, 26 341 F.3d 1006, 1012 (9th Cir. 2003) (internal quotation omitted). The Court disagrees with Plaintiff’s 27 argument that the ALJ did not consider the full record before arriving at a conclusion based on 28 substantial evidence. The ALJ’s decision recognizes that Plaintiff has some work limitations, however, 1 he discredits limitations that are inconsistent with the objective medical evidence. In reaching his 2 decision, the ALJ weighed the relevant evidence in the record and did not impermissibly give more 3 weight to evidence which supported his conclusion over equally relevant evidence. Having reviewed 4 the record, the Court concludes that the ALJ’s interpretation of Plaintiff’s medical records was 5 reasonable and supported by substantial evidence. 6 7. Plaintiff Has Not Established that the Commissioner Acted in Bad Faith 7 Plaintiff’s seventh, eighth, tenth, and eleventh arguments in his brief appear to address various 8 alleged acts of “bad faith.” (Doc. No. 21 at 17-21.) However, these allegations do not warrant remand. 9 Plaintiff first contends that the Commissioner “lost [his] first case” submitted on March 8, 10 2012. (Doc. No. 21 at 17.) Plaintiff therefore requests that the Court consider March 8, 2012 as his 11 original filing date, and September 1, 2011 as the date he became fully disabled. (Id.) The date an 12 application was filed determines amount of benefits awarded. See Wellington v. Berryhill, 878 F.3d 13 867, 872 (9th Cir. 2017) (“A claimant can qualify for SSDI only if her disability begins by her date 14 last insured, and these benefits can be paid for up to 12 months before her application was filed. 15 [Citation.] In contrast, a claimant is eligible for SSI once she becomes disabled, but she cannot receive 16 benefits for any period before her application date.”) As the Court affirms the ALJ’s decision for the 17 reasons discussed herein, this request is denied as moot. 18 Plaintiff further argues that the Appeals Council “ ‘lost’, ignored, or intentionally deleted 19 material evidence . . . and there is strong evidence that this was intentional.” (Doc. No. 21 at 17-18.) 20 Specifically, Plaintiff points to his former attorneys’ representative brief submitted to the Appeals 21 Council in support of Plaintiff’s request for reconsideration of the ALJ’s decision. (Id.) Plaintiff 22 contends that this document was thirteen pages long but only six pages were included in the record. 23 (Id.) See AR 289-293. The representative brief Plaintiff refers to in his argument contains a fax header 24 numbered pages eight through twelve of thirteen. See AR 289-293. An identical fax header marking 25 page thirteen of thirteen can be found at page 608 of the administrative record. See AR 608. This 26 document consists of Drs. Ede and Chen’s July 2015 letters. Id. Additionally, pages one through seven 27 of thirteen, consisting of communications between Plaintiff’s former counsel and the Appeals Council, 28 are found at pages 28 through 34 of the administrative record. See AR 28-34. Therefore, there does not 1 appear to be any merit to Plaintiff’s contention that the Appeals Council “lost, ignored, or intentionally 2 deleted” the representative brief. 3 Plaintiff additionally contends that the Commissioner of “suppress[ed]” portions of his former 4 attorneys’ representative brief. (Doc. No. 21 at 18, 19.) Plaintiff points to the fact that two pages of the 5 brief appear on a single page in the record, in smaller font, with a portion of the argument apparently 6 missing. (Id.) However, the fax headers are numbered consecutively, without any missing pagination, 7 and Plaintiff has not established that the pagination and font sizing discrepancy was due to 8 malfeasance rather than a faxing error or some other cause. Moreover, these discrepancies are 9 immaterial because the representative brief is not evidence on which the ALJ relied and the Court has 10 no jurisdiction to review the Appeals Council’s decision or its reasons for rejecting Plaintiff’s former 11 attorneys’ arguments. Berschneider, 2015 WL 1497835, at *9 (“[T]he Court cannot remand base 12 dsolely on the actions of the Appeals Council[.]”). 13 Plaintiff next accuses the ALJ of bias, citing to the ALJ’s selective analysis of the evidence and 14 “curt and adversarial tone” at the hearing. (Doc. No. 21 at 18.) To demonstrate bias, Plaintiff must 15 show that “the ALJ’s behavior in the context of the whole case was ‘so extreme as to display clear 16 inability to render fair judgment.’” Bayliss v. Barnhart, 427 F.3d 1211, 1214-15 (9th Cir. 2005) 17 (citations omitted). The Court begins with the presumption that the ALJ was unbiased. Id. Plaintiff 18 may rebut this presumption by showing “a conflict of interest or some other specific reason for 19 disqualification.” Id. 20 Plaintiff has not made the requisite showing that the ALJ was biased. For the same reasons 21 discussed above, the Court is not persuaded by Plaintiff’s argument that the ALJ selectively analyzed 22 the evidence. In reaching his decision, the ALJ weighed the relevant evidence in the record and did not 23 impermissibly give more weight to evidence which supported his conclusion over equally relevant 24 evidence. Additionally, a “curt and adversarial tone” is insufficient to establish bias. Here, the ALJ 25 prepared a detailed opinion in which he carefully examined Plaintiff’s medical history and addressed 26 the relevant evidence, including the opinions of each reviewing doctor. Allegations of bias should be 27 rejected where isolated portions of an ALJ’s conduct are challenged but the record as a whole shows 28 fundamental fairness for the litigations. Bayliss, 427 F.3d at 1215-16. Such is the case here. In light of 1 the detailed and well-reasoned written grounds for ruling against Plaintiff, the Court finds that Plaintiff 2 has failed to establish any bias. 3 Additionally, Plaintiff challenges the ALJ’s failure to address “the extensive and specific 4 evidence of my fibromyalgia submitted by Dr. Silvia Diego, MD.” (Doc. No. 21 at 18-21.) Dr. 5 Diego’s opinion is not part of the record for this case. Instead, Plaintiff indicates that this evidence was 6 submitted in support of a subsequent application for benefits. (See id.) Indeed, Dr. Diego’s report 7 states that she has “reviewed the ALJ’s decision rendered October 9, 2108 [sic]” and “[t]here a [sic] 8 some conclusions made by the ALJ that are inconsistent with my findings and review of the medical 9 records that predate our treatment relationship.” (Doc. No. 21 at Ex. 3A). However, Plaintiff’s 10 subsequent application for benefits is not before the Court. See Hastings v. Comm’r of Soc. Sec., 581 11 Fed.Appx. 694, 695 (9th Cir. July 1, 2014) (holding that district court lacked jurisdiction over 12 a subsequent grant of benefits). 13 As discussed above, Plaintiff is required to show that new evidence submitted to the trial court 14 is material and there was good cause for the failure to incorporate the evidence into the record in the 15 prior proceeding. Booz v. Sec'y of Health & Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984). Dr. 16 Diego’s report states that she began treating Plaintiff in 2016, after the ALJ’s decision in this case was 17 issued. Treatment records documenting a claimant’s condition after the ALJ’s decision are, at most, 18 material to a new application for disability, but cannot be used as a basis to remand this case to the 19 ALJ. Arnold v. Comm'r of Soc. Sec., 2014 WL 1303674, at *12 (E.D. Cal. Mar. 31, 2014) (citing 20 Sanchez v. Sec'y of Health & Human Servs., 812 F.2d 509, 512 (9th Cir. 1987)). Furthermore, Plaintiff 21 makes no effort to address good cause for his failure to submit this evidence during the administrative 22 proceedings. Accordingly, Dr. Diego’s report is not properly before the Court and has not been 23 considered. 24 Further, Plaintiff states that “Dr. McCarberg performed examinations confirming the presence 25 of 12/18 tender points . . . but these exam records were erased from the record[.]” (Doc. No. 21 at 19.) 26 Plaintiff does not identify when this examination was performed or provide a copy of any pertinent 27 medical records. Furthermore, the ALJ specifically cited to multiple progress notes where Dr. 28 McCarberg noted tender points, including progress notes dated March 18, 2014, noting “12/18 tender 1 points.” AR 42, 487, 490, 494, 498. These progress notes are not only included in the record, but the 2 ALJ also expressly considered them in developing the RFC. AR 42. Accordingly, Plaintiff has not 3 established that any medical evidence was “erased from the record.”9 4 Plaintiff additionally contends that the Appeals Council failed to notify him of an extension to 5 file this action. (Doc. No. 21 at 20-21.) According to the record, Plaintiff sought review of the ALJ’s 6 decision and submitted new evidence, which the Appeals Council denied on November 17, 2016. AR 7 21-26. On January 19, 2017, Plaintiff requested an extension of time to file a civil action, which the 8 Appeals Council granted on April 27, 2017. AR 16-17. On October 24, 2017, Plaintiff requested that 9 his claim be reopened because Plaintiff had not received notification that his original request for 10 review had been denied. AR 6. Plaintiff requested permission to submit additional statements or an 11 extension of thirty (30) days to file a civil action. AR 6. On December 29, 2017, Plaintiff requested a 12 new extension of time to file a civil action because Plaintiff had not received the Appeals Council’s 13 April 27, 2017 letter. AR 4. On May 24, 2018, the Appeals Council declined to reopen Plaintiff’s 14 claims and granted a further extension of time for Plaintiff to file a civil action. AR 12-13. As 15 discussed above, the Court lacks jurisdiction to review the Appeals Council’s decisions and cannot 16 remand based solely on its actions. See Brewes, 682 F.3d at 1161; Berschneider, 2015 WL 1497835, at 17 *9. Moreover, any error in granting Plaintiff an extension is harmless because, as Plaintiff 18 acknowledges, the Appeals Council rectified the matter and gave Plaintiff an additional extension of 19 time to file this action. (See Doc. No. 21 at 20-21.) 20 Finally, Plaintiff disagrees with the Appeals Council’s decisions declining to reverse the ALJ’s 21 decision or reopen the case. (Doc. No. 21 at 21.) According to Plaintiff, he submitted evidence that 22 met the Appeals Council’s criteria for submission of new evidence and the ALJ’s decision should have 23 been reversed. However, once again, the Court lacks jurisdiction to review the Appeals Council’s 24 25 9 It is unclear from the briefing whether Plaintiff argues that the ALJ erred in failing to discuss Plaintiff’s diagnoses of fibromyalgia and myofascial pain syndrome or whether he merely challenges the allegation that evidence was “erased 26 from the record.” To the extent Plaintiff intends to raise this argument, the Court finds it is without merit. Plaintiff fails to identify any limitations that the ALJ did not address related to these diagnoses, nor does the record reveal any additional 27 limitations that the ALJ should have addressed. Thus, any error by not specifically addressing these diagnoses would be harmless. Morris v. Comm'r of Soc. Sec., 2017 WL 4181083, at *6; see also Matthews, 10 F.3d at 680 (“The mere 28 existence of an impairment is insufficient proof of disability.”). 1 decisions and cannot remand based solely on its actions. See Brewes, 682 F.3d at 1161; Berschneider, 2 2015 WL 1497835, at *9. The Appeals Council’s determinations of Plaintiff’s requests for review and 3 to reopen his case are non-final agency actions that are not subject to judicial review. Taylor cv. 4 Comm’r. Soc. Sec., 659 F.3d 1228, 1231 (9th Cir. 2011). 5 Accordingly, the Court finds that Plaintiff’s allegations regarding the Commissioner’s “bad 6 faith” conduct and the Appeal’s Council’s decisions do not warrant remand. 7 CONCLUSION 8 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 9 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 10 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security. 11 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Andrew M. Saul, 12 Commissioner of Social Security, and against Plaintiff Glenn Schuler. 13 14 IT IS SO ORDERED. 15 Dated: May 27, 2020 /s/ Barbara A. McAuliffe _ 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28