Opinion
MEMORANDUM OPINION AND ORDER
JAY C. GANDHI, Magistrate Judge.
Debbie Ann Santa Cruz ("Plaintiff") challenges the Social Security Commissioner's ("Defendant") decision denying her application for disability benefits. Specifically, Plaintiff contends that the Appeals Council improperly rejected evidence submitted after the issuance of the Administrative Law Judge's ("ALJ") opinion. ( See Joint Stip. at 4-13, 17-22.)
The Court addresses, and rejects, Plaintiff's contention below.
A. The Appeals Council Did Not Err in Denying Review of the ALJ's Decision
Social Security regulations provide that where new and material evidence is submitted to the Appeals Council with the request for review, the entire record will be evaluated. 20 C.F.R. § 404.970(b). Review of the ALJ's decision will be granted where the Appeals Council finds that the ALJ's actions, findings, or conclusions are contrary to the weight of the evidence. Id. Post-decision submissions considered by the Appeals Council are part of the record on review by this Court. Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993).
To be material, the new evidence must bear "directly and substantially on the matter in dispute." Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (internal quotation marks and citation omitted). Material evidence should relate to the period on or before the date of the ALJ's decision. See 20 C.F.R. § 404.970(b); Bates v. Sullivan, 894 F.2d 1059, 1064 (9th Cir. 1990), overruled in part on other grounds by Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991). The claimant must also demonstrate a "reasonable possibility" that the new evidence would have changed the ultimate nondisability finding. Mayes, 276 F.3d at 462.
The Court is persuaded that Dr. Melanie Kim's disability endorsement poses no reasonable probability of changing the ALJ's decision. Three reasons guide this determination.
Insofar as the Appeals Council may have erred by not exhibiting Dr. Kim's letter, any such error is harmless because the opinion is presently before the Court. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) ("we may not reverse an ALJ's decision on account of an error that is harmless").
First, to the extent that it relates to a period after the ALJ's November 10, 2011 decision, Dr. Kim's opinion is immaterial. See Bates, 894 F.2d at 1064; 20 C.F.R. § 404.970(b); (Dkt. No. 20 Ex. 1) (May 22, 2012 letter stating that Plaintiff "has maintained good medication compliance " for at least the past several months "); (Dkt. No. 20 Ex. 2) (of the forty pages of treatment notes submitted by Dr. Kim, the first thirty pages postdate the ALJ's decision, ranging from November 14, 2011 to August 14, 2013).
Second, and moreover, Dr. Kim's extreme assessment is belied by the relevant treatment notes. See Burkhart v. Bowen, 856 F.2d 1335, 1339-40 (9th Cir. 1998) (ALJ properly rejected treating physician's opinion which was unsupported by medical findings, personal observations, or test reports). In particular, while Dr. Kim opined that Plaintiff is wholly unable to work, ( see Dkt. No. 20 Ex. 1), on January 27, 2011, she noted that Plaintiff "[d]escribe[d] good attention to child care duties including taking kids to school, regular attendance at son's football practices, school meetings, etc." (Dkt. No. 20 Ex. 2 at 38.) Moreover, Dr. Kim's notes document a long history of medical noncompliance and poor work motivation. ( Id. at 30-40.)
Third, the Court finds that the weight of the evidence supports the ALJ's finding that Plaintiff was not suffering from a disability as defined by the Social Security Act. ( See, e.g., AR at 215, 240-44 (treating opinion, dated November 14, 2010, finding that Plaintiff should be "able to maintain attendance" and "sustain focus" at work, and was likely to improve in "less than 12 months); 245-60 (state agency psychiatrist evaluation, dated November 22, 2010, concluding that Plaintiff needed "no assistance [with] personal affairs, " was able to "understand simple written and oral instructions, " "focus on everyday activities, " and "adopt a mild to moderate workplan.").)
The Court further notes that, as to Plaintiff's subjective complaints, the ALJ properly determined that Plaintiff's prior convictions for insurance fraud and perjury "reflect adversely on her credibility." ( See AR at 46); Hardisty v. Astrue, 592 F.3d 1072, 1080 (9th Cir. 2010) (finding ALJ's credibility determination substantially justified when based, among other factors, on claimant's criminal history).
Accordingly, the Appeals Counsel properly denied review of the ALJ's decision.
Based on the foregoing, IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits.