Opinion
Case No. CV 14-5909-SP
01-07-2016
DAVID VAN GILDER, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
On August 8, 2014, plaintiff David Van Gilder filed a complaint against defendant, the Commissioner of the Social Security Administration ("Commissioner"), seeking a review of a denial of supplemental security income ("SSI") and disability insurance benefits ("DIB"). Plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties have fully briefed the matters in dispute, and the court deems the matter suitable for adjudication without oral argument.
Plaintiff presents five disputed issues for decision: (1) whether the Administrative Law Judge ("ALJ") erred at step three; (2) whether the ALJ properly assessed plaintiff's residual functional capacity ("RFC"); (3) whether the ALJ properly considered plaintiff's credibility; (4) whether additional evidence submitted to the Appeals Council presents a basis for reversal; and (5) whether the application should be remanded given plaintiff's subsequent successful application for SSI. Plaintiff's Memorandum in Support of Relief Requested in Plaintiff's Complaint ("P. Mem.") at 4-13; Defendant's Memorandum in Support of Defendant's Answer ("D. Mem.") at 2-16.
Having carefully studied the parties' moving and opposing papers, the Administrative Record ("AR"), and the decision of the ALJ, the court concludes that, as detailed herein, the ALJ did not err at step three, the ALJ properly assessed plaintiff's RFC, the ALJ provided clear and convincing reasons to discount plaintiff's credibility, the evidence later submitted to the Appeals Council does not provide a basis for reversal, and the subsequent disability finding did not require remand of the instant application. Consequently, the court affirms the decision of the Commissioner denying benefits.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, who was forty-five years old on the alleged disability onset date, has a high school education. AR at 67, 70, 76, 343. He has past relevant work as a computer electronic mechanic, user support analyst, and construction worker. Id. at 22-23, 61, 75.
On March 12, 2012, plaintiff filed concurrent applications for DIB and SSI benefits due to ankle problems, back pain, diabetes, migraines, hernias, depression, insomnia, thyroid problems, memory problems, psoriasis, and arthritis, alleging an onset date in both applications of March 18, 2008. Id. at 67, 78, 90, 187, 194. The applications were denied initially and upon reconsideration, after which plaintiff filed a request for a hearing. Id. at 117, 121, 125, 132.
On September 20, 2013, the ALJ held a hearing. Id. at 1-29. Plaintiff, represented by counsel, appeared and testified at the hearing. Id. at 5-21. The ALJ also heard testimony from Gregory Stewart Jones, a vocational expert. Id. at 22-27. In a written decision dated November 13, 2013, the ALJ denied plaintiff's claim for benefits. Id. at 52-62.
Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity since March 18, 2008, the alleged onset date. Id. at 54.
At step two, the ALJ found that plaintiff suffered from the following severe impairments: back disease, history of left ankle fracture status post-surgery with post-traumatic osteoarthritis, arthralgias (joint pain), and myalgias (muscle pain). Id.
At step three, the ALJ found plaintiff's impairments, whether individually or in combination, did not meet or medically equal one of the listed impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the "Listings"). Id. at 55.
The ALJ then assessed plaintiff's RFC, and determined that plaintiff had the RFC to perform light work, with the limitations that plaintiff: could walk and stand no more than four hours out of an eight-hour day; could sit without restrictions; could no more than occasionally climb, kneel, crawl, bend, crouch, and stoop; could never balance; could never walk on uneven terrain, climb ladders, or work at heights; and must use a cane for support for any distances greater than 100 feet. Id. at 56.
Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989). "Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007).
The ALJ found, at step four, that plaintiff was capable of performing his past relevant work as a user support analyst, specifically noting this role did not require performance of the work-related activities precluded by plaintiff's RFC. Id. at 61. Consequently, the ALJ concluded that plaintiff did not suffer from a disability as defined by the Social Security Act ("Act" or "SSA"). Id. at 62.
Plaintiff filed a timely request for review of the ALJ's decision on December 5, 2013. Id. at 47. On March 20, 2014, while plaintiff's request for review was pending before the Appeals Council, plaintiff filed a new application for SSI benefits, which was subsequently granted on September 5, 2014. See P. Mem., Ex. A. Plaintiff claims the subsequent application was filed pursuant to Social Security Ruling ("SSR") 11-1p because he received a new diagnosis of neuropathy after the ALJ's decision. P. Mem. at 3.
"The Commissioner issues Social Security Rulings to clarify the Act's implementing regulations and the agency's policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner's interpretation of the agency's regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations." Holohan v. Massanari, 246 F.3d at 1202 n.1 (internal citations omitted).
Meanwhile, on May 22, 2014, the Appeals Council denied the request for review. AR at 41-47. However, on May 26, 2014, before the Appeals Council's denial letter was received, plaintiff's counsel submitted new evidence for the Appeals Council to consider. P. Mem. at 3; AR at 309-310. On June 13, 2014, the Appeals Council vacated its earlier May 22, 2014 denial to consider new information, and then again denied plaintiff's request for review. AR at 36.
Plaintiff's counsel wrote the Appeals Council on June 19, 2014, indicating none of the additional information submitted on May 26, 2014 had been referenced in the June 13, 2014 denial or marked as part of the record, and submitted the materials again. Id. at 308. On June 26, 2014, plaintiff again wrote the Appeals Council requesting that the evidence submitted May 26, 2014 be incorporated into plaintiff's exhibit file. Id. at 306. On July 3, 2014, the Appeals Council vacated its earlier June 13, 2014 action to again consider new information, and again denied plaintiff's request for review. Id. at 30-34. The ALJ's decision stands as the final decision of the Commissioner.
III.
STANDARD OF REVIEW
This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).
"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
IV.
DISCUSSION
A. The ALJ Properly Found Plaintiff's Impairments Did Not Meet or Equal Listings 1.02 , 1.03, 1.04, or 1.06
Plaintiff claims the ALJ incorrectly found his condition did not meet or equal a Listing. P. Mem. at 4-7; see also Plaintiff's Brief in Reply to D. Mem. ("Reply") at 2-4. Specifically, plaintiff contends his condition either meets or equals Listings 1.02A, 1.03, 1.04, or 1.06. P. Mem. at 4.
At step three, Social Security regulations provide that a claimant is disabled if he or she meets or medically equals a listed impairment set forth in the Listings. 20 C.F.R. §§ 416.920(a)(4)(iii) ( "If you have an impairment(s) that meets or equals one of our listings . . . we will find that you are disabled"), 416.920(d) ("If you have an impairment(s) which . . . is listed in Appendix 1 or is equal to a listed impairment(s), we will find you disabled without considering your age, education, and work experience"). In other words, if a claimant meets or equals a Listing, he or she will be found disabled at this step "without further inquiry." Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). In such case, there is no need for the ALJ to complete steps four and five of the sequential process. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001).
"To meet a listed impairment, a claimant must establish that he or she meets each characteristic of a listed impairment relevant to his or her claim." Tackett, 180 F.3d at 1099 (emphasis in original).
To establish that an impairment is medically equivalent to a listed impairment, it is the claimant's burden to show that his impairment "is at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. § 416.926(a). For an impairment or combination of impairments to equal a Listing, the claimant "must present medical findings equal in severity to all the criteria for the one most similar listed impairment." Sullivan v. Zebley, 493 U.S. 521, 531, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990) (emphasis in original), superseded by statute on other grounds; see 20 C.F.R. § 416.926(a)-(b); SSR 83-19 (an impairment is "equivalent" to a listing only if a claimant's symptoms, signs, and laboratory findings are "at least equivalent in severity" to the criteria for the listed impairment most like the claimant's impairment). A determination of medical equivalence must rest on objective medical evidence. See Lewis, 236 F.3d at 514 ("A finding of equivalence must be based on medical evidence only."). "If the findings related to [the claimant's] impairment(s) are at least of equal medical significance to those of a listed impairment, [the Commissioner] will find that [the claimant's] impairment(s) is medically equivalent to the analogous listing." 20 C.F.R. § 416.926(b)(2). The ALJ is not required to state why a claimant fails to satisfy every section of a listing as long as the ALJ adequately summarizes and evaluates the evidence. Lewis, 236 F.3d at 513.
Here, plaintiff has failed to demonstrate that he met or equaled Listings 1.02A, 1.03, 1.04, or 1.06 during the relevant period.
1. Listing 1.02A
In order to be considered presumptively disabled under Listing 1.02A, a claimant must demonstrate that (1) he has major dysfunction of a major peripheral weight-bearing joint (i.e., hip, knee, or ankle) characterized by gross anatomical deformity and chronic joint pain and stiffness, with signs of limitation of motion or other abnormal motion of the affected joint; (2) medical imaging reflects narrowing, destruction, or ankylosis of the affected joint; and (3) the dysfunction results in an "inability to ambulate effectively, as defined in [Listing 1.00(B)(2)(b)(2)]." Listing 1.02A; see Hamilton v. Astrue, 2010 WL 3748744, at *5 (C.D. Cal. Sept. 22, 2010).
"To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation." Listing 1.00(B)(2)(b)(2).
Plaintiff contends he met his burden under this standard. P. Mem. at 6. Specifically, plaintiff argues the following evidence in the administrative record demonstrates an inability to ambulate effectively: (1) a February 7, 2007 treatment note indicating his left ankle fracture required two surgeries (AR at 320); (2) a February 13, 2007 treatment note in which plaintiff reported daily moderate to severe ankle pain and an inability to stand more than an hour or walk more than half an hour (AR at 331); (3) a June 29, 2011 treatment note indicating plaintiff had a disability placard, which plaintiff argues "suggests an inability to ambulate throughout a parking lot" (AR at 332); (4) a February 6, 2009 treatment note indicating a fusion procedure was planned (AR at 333); (5) a July 2013 prescription for plaintiff to be evaluated for a wheelchair or other gait aid (AR at 404); and (6) an undated treatment report, printed by Olive View Medical Center ("Olive View") on January 8, 2014, indicating plaintiff used a walker or cane (AR at 435). P. Mem. at 5.
Moreover, plaintiff claims the ALJ and Appeals Council omitted a discussion of Listing 1.02A, despite plaintiff's counsel mentioning the Listing during closing argument at the administrative hearing and again in an April 29, 2014 letter to the Appeals Council. Reply at 2; see AR at 28, 302. Lastly, plaintiff argues the ALJ did not adequately consider the impact of plaintiff's cane when determining whether plaintiff met or equaled Listing 1.02A, or when determining plaintiff's RFC, and cross references Listing 1.00(J)(4) to support his argument that cane use must be considered. P. Mem. at 4.
"When an individual with an impairment involving a lower extremity or extremities uses a hand-held assistive device, such as a cane, crutch or walker, examination should be with and without the use of the assistive device unless contraindicated by the medical judgment of a physician who has treated or examined the individual. The individual's ability to ambulate with and without the device provides information as to whether, or the extent to which, the individual is able to ambulate without assistance. The medical basis for the use of any assistive device (e.g., instability, weakness) should be documented. The requirement to use a hand-held assistive device may also impact on the individual's functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling." Listing 1.00(J)(4).
Though plaintiff identifies these excerpts of evidence, he provides no explanation for how this is evidence of an impairment at least equal in severity and duration to each criteria articulated in Listing 1.02A. See Tackett, 180 F.3d at 1099; see also 20 C.F.R. § 416.926(a). As mentioned, plaintiff "must present medical findings equal in severity to all the criteria for the one most similar listed impairment." Sullivan, 493 U.S. at 531. Here, that would require plaintiff to establish an impairment meeting or medically equivalent to all of the following: a gross anatomical deformity and chronic joint pain and stiffness of the left ankle, with signs of limitation of motion or other abnormal motion, in addition to medical imaging that reflects narrowing, destruction, or ankylosis of the ankle, all of which results in an inability to ambulate effectively. See Listing 1.02A. Even if the evidence plaintiff cites could demonstrate a major dysfunction of the left ankle joint, none of that evidence constitutes acceptable medical imaging demonstrating satisfactory impairments of the ankle.
Moreover, the ALJ's summary of the evidence related to plaintiff's ankle limitations was sufficient to support the conclusion that plaintiff can ambulate and therefore did not meet or equal the listing. AR at 56-61; see Gonzalez v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir. 1990) (ALJ did not err in failing to state what evidence supported finding that claimant failed to meet or equal a listed impairment because four page, single-spaced "evaluation of the evidence" was "an adequate statement of the 'foundations on which the ultimate factual conclusions [were] based'"). Importantly, the ALJ's summary specifically discussed, among other factors: (1) plaintiff's subjective reports of pain post-surgery (AR at 57-58); (2) a March 2008 exam indicating stable range of motion in the left ankle, compared with a May 2012 evaluation indicating zero range of motion (AR at 57-58, 331, 333, 344-346); (3) a consultative evaluation suggesting that plaintiff use a cane for distances greater than 100 feet, in part because plaintiff's gait appeared slightly antalgic (limping) with the use of a large, long walking stick, but otherwise appeared normal and without evidence of tremor or ambulation (AR at 58, 345-346); (4) plaintiff's use of a 3-wheel cart or cane (AR at 17, 56); and (5) plaintiff's daily activities, including driving and walking, and performing household chores such as preparing meals, taking out the trash, and unloading the dishwasher (AR at 61). See Worth v. Astrue, 330 F. App'x 642, 644 (9th Cir. 2009) ("although [claimant's] ability to walk is somewhat limited, such limitations are not sufficiently 'extreme' to render [claimant] unable 'to ambulate effectively,' as required to equal listing 1.02(A)").
In addition, the ALJ discussed diagnostic imaging of plaintiff's ankle, in particular a February 8, 2013 report by Thomas Zung, M.D., which revealed only moderate degenerative changes with compression of the left tarsal talar base, no acute fractures, subluxation, lystic lesions, or evidence of bony erosions or abnormal soft-tissue densities in the left ankle. AR at 60, 402.
Plaintiff also argues that the ALJ's RFC findings that he should "never" walk on uneven terrain and use a cane for distances greater than 100 feet establish an inability to walk effectively. P. Mem. at 7. But the ALJ found that plaintiff should avoid walking on uneven terrain and use a cane for distances over 100 feet as part of his work, not that he could not do so at all. AR at 56; Moreno v. Astrue, 444 Fed. Appx. 163, 164 (9th Cir. 2011) (finding claimant's limitation to walking on even terrain did not establish inability to walk effectively because RFC "did not state that [claimant] was incapable of walking on uneven surfaces, only that he should avoid doing so in his employment"); Nance v. Colvin, 2014 WL 3347027, at *4 (finding that inability to walk on uneven terrain, by itself, does not establish inability to walk effectively under Listing 1.03). And use of a single cane over certain distances does not by itself establish inability to effectively ambulate. See Listing 1.00(B)(2)(b)(2) (giving as an example of ineffective ambulation "the inability to walk without the use of . . . two canes"). Further, plaintiff testified he was able to stand for two hours and could tolerate standing and walking up to four hours in an eight hour period (AR at 12, 18), and he stated in a March 24, 2012 Function Report that he could prepare his own meals, take his laundry to his mother's house once a week, and go grocery shopping once or twice a week (AR at 61, 254-255). Thus, contrary to one of the Listing's examples of ineffective ambulation, plaintiff was able "to carry out routine ambulatory activities, such as shopping." Listing 1.00(B)(2)(b)(2).
Finally, the ALJ also discussed the findings outlined in a May 9, 2012 written report following a consultative examination performed by Ursula Taylor, M.D. AR at 57-58, 341-346. In particular, the ALJ noted Dr. Taylor considered plaintiff's subjective complaints of joint and back pain, in addition to "some supporting evidence, such as mildly decreased range of lumbar motion and moderate deformity of the left ankle." AR at 58, 342, 344-345. Dr. Taylor nonetheless found plaintiff could lift and carry no more than twenty pounds occasionally and ten pounds frequently, secondary to back pain and cane dependence. AR at 58, 346. Among other findings, Dr. Taylor also opined plaintiff could walk and stand no more than four hours out of an eight hour day, sit without restrictions, and should use a cane for distances over 100 feet. Id.
Accordingly, the ALJ did not err in determining plaintiff can ambulate and thus did not meet or equal Listing 1.02A here, despite plaintiff's assertions to the contrary. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) ("Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.") (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)).
2. Listing 1.03
In order to meet Listing 1.03, a claimant must establish "[r]econstructive surgery or surgical arthrodesis of a major weight-bearing joint, with inability to ambulate effectively, as defined in [Listing 1.00(B)(2)(b)(2)], and return to effective ambulation did not occur, or is not expected to occur, within 12 months of onset." Listing 1.03.
The ALJ's opinion does not specifically consider Listing 1.03. AR at 52-62. Here, plaintiff only cites to an October 26, 2012 Olive View report in which the physician notes plaintiff had two surgeries on his left ankle to support the argument that the ALJ erred by not considering Listing 1.03 and that substantial evidence exists to establish disability under that Listing. See P. Mem. at 6; Reply at 3-4; AR at 384. Plaintiff appears to argue that Listing 1.03 applies simply because plaintiff had two surgeries and therefore cannot ambulate effectively under Listing 1.00(B)(2)(b)(2). P. Mem. at 6.
Here, plaintiff's unsupported citation has not met his burden of establishing the two surgeries cited constitute the reconstructive surgeries needed to satisfy disability under Listing 1.03. See Tackett, 180 F.3d at 1099; see also Sullivan, 493 U.S. at 531. Further, for the reasons discussed in Section A.1 above, plaintiff has not sufficiently shown he was unable to ambulate effectively under Listing 1.00(B)(2)(b)(2). As such, in light of the medical evidence cited and discussed in the ALJ's opinion, the ALJ did not err in determining plaintiff was not disabled under Listing 1.03. See Gonzalez, 914 F.2d at 1200-01.
3. Listing 1.04
The ALJ specifically discussed Listing 1.04 and found plaintiff's impairments, either individually or in combination, failed to meet or equal the criteria specified in Listing 1.04. AR at 55-56. Plaintiff again argues he has satisfied his burden of establishing disability under each Listing's particular criteria and that the ALJ erred by failing to consider whether plaintiff's back and ankle impairments combined to meet or equal this Listing. P. Mem. at 6-7; Reply at 3-4. The court disagrees.
Listing 1.04 requires a finding of disability for an individual who has a "[d]isorder[ ] of the spine," such as "herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, or vertebral fracture," that results in compromise of a nerve root or the spinal cord, and which is accompanied by the additional requirements set forth under section 1.04A, 1.04B, or 1.04C. Listing 1.04. Section 1.04A requires "[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)." Listing 1.04A. Section 1.04B requires "[s]pinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging." Listing 1.04B. Finally, section 1.04C requires "lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and resulting in an inability to ambulate effectively, as defined in [Listing 1.00(B)(2)(b)(2)]." Listing 1.04C.
Here, although the ALJ explicitly considered Listing 1.04, plaintiff only makes a general statement that new evidence subsequently submitted to the Appeals Council indicating plaintiff had degenerative disk disease "undercuts" the ALJ's findings regarding plaintiff's failure to establish disability under Listing 1.04. P. Mem. at 6-7. But plaintiff again provides no specific citation or discussion as to how such evidence changes plaintiff's impairments to now meet or equal all the criteria under Listing 1.04. Moreover, plaintiff makes no specific contention that the newly submitted evidence at issue meets Listing 1.04A, 1.04B, or 1.04C in particular.
A review of the evidence subsequently submitted to the Appeals Council indicates at least some of that evidence does include findings of back-related impairments. See P. Mem., Ex. B at 9. In a treatment note from Olive View dated April 3, 2014, Dr. Aksone Nouvong, a treating podiatrist, made the following findings after an apparent review of images of plaintiff's spine: (1) accentuated normal lumbar spine lordosis; (2) minimal degenerative changes of lower lumbar spine with relative narrowing of intervertebral disk at L3-4 level; (3) relative mild anterior compressions of L1, L4, and L5 vertebrae, but "ages are indeterminate" and "[c]linical correlation is needed"; (4) minimal discogenic disease at L5-S1 level; (5) no subluxation, osteolytic lesion or bony erosions; and (6) surgical clips in medial right upper quadrant. Id.
But while there are some objective medical findings that arguably might be minimally related to some of the requirements of Listing 1.04A, 1.04B, or 1.04C, plaintiff has failed to offer any explanation of how these impairments meet or equal any of the requirements particular to any section of Listing 1.04. For example, plaintiff does not attempt to explain how evidence of "mild anterior compressions" may constitute "nerve root compression characterized by neuro-anatomic distribution of pain" as required by Listing 1.04A. Moreover, as far as the court can tell, Dr. Nouvong's findings do not explicitly establish "spinal arachnoiditis" or "lumbar spinal stenosis" as required by Listings 1.04B and 1.04C, respectively. As such, without more, plaintiff has provided no basis for reversal of the ALJ's decision here.
4. Listing 1.06
Listing 1.06 states that a claimant is disabled if he has a fracture of the femur, tibia, pelvis, or tarsal bones, with: (1) "[s]olid union not evident on appropriate medically acceptable imaging and not clinically solid" and (2) an "[i]nability to ambulate effectively, as defined in [Listing 1.00(B)(2)(b)(2)], and return to effective ambulation did not occur or is not expected to occur within 12 months of onset." Listing 1.06.
Here, plaintiff argues the ALJ failed to cite any evidence demonstrating that plaintiff had a solid union, and cites to evidence of an MRI he argues establishes that plaintiff had a nonunion of the fractured ankle. Reply at 3; AR at 383. In addition, plaintiff repeats the same failed argument already advanced with the other Listings at issue that he has satisfied his burden of demonstrating an inability to ambulate effectively under Listing 1.00(B)(2)(b)(2). Reply at 3. Plaintiff cites to a report from Philip W. Anderson, M.D., reviewing an MRI of plaintiff's lower left extremity. There, Dr. Anderson noted a "[c]omminuted fracture of the talus with internal fixation and what appears to be union of the fracture lines except for a vertically oriented sagittal fracture line in the head of the talus which remains visible." AR at 383.
While this particular MRI report appears undated, the court notes that plaintiff's citation comes from medical records from Canyon Medical Group dated August 31, 2008 through May 11, 2009. See AR at 376-383.
Even assuming plaintiff had a nonunion of his talus bone, substantial evidence supported a finding that plaintiff could ambulate effectively, as discussed above in Section A.1. Accordingly, his impairment did not satisfy the criteria specified under Listing 1.06. B. The ALJ's RFC Assessment Is Supported by Substantial Evidence
Plaintiff argues the ALJ improperly determined plaintiff's RFC. P. Mem. at 7-8; Reply at 4-6. Specifically, plaintiff contends that: (1) the ALJ failed to account for concentration deficits noted during a psychological evaluation by Rosa Colonna, Ph. D., a clinical psychologist; (2) the RFC assessment does not adequately consider plaintiff's use of a cane; and (3) the RFC assessment does not account for plaintiff's reports of swelling limitations in his left ankle. Id.
1. Dr. Colonna's Findings
On May 1, 2012, Dr. Colonna performed a complete psychological evaluation of plaintiff. AR at 348. The ALJ gave great weight to Dr. Colonna's opinions, and discussed her findings at length. Id. at 58-59, 61. Among other findings, Dr. Colonna ultimately concluded plaintiff would be able to understand, remember, and carry out short, simplistic instructions without difficulty, and would be able to make simplistic work-related decisions without special supervision, but that plaintiff presented with a mild inability to understand, remember, and carry out detailed instructions. Id. at 352.
Though the ALJ noted Dr. Colonna's finding that plaintiff's attention and concentration were moderately diminished, the ALJ also found plaintiff had "no limitation" in the functional area of concentration, persistence, or pace. Id. at 55, 59. Plaintiff argues Dr. Colonna's finding that plaintiff's attention and concentration were moderately diminished constitutes probative evidence that the ALJ failed to adequately discuss in the context of plaintiff's RFC assessment. P. Mem. at 7; Reply at 4-5.
"It is not necessary to agree with everything an expert witness says in order to hold that his testimony contains 'substantial evidence.'" Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (quoting Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 1988) (internal citations omitted)). And as plaintiff correctly asserts, the ALJ was not required to discuss evidence in the record that is not probative as to the RFC. Reply at 4-5; see Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) ("The [Commissioner] . . . need not discuss all evidence presented . . . Rather, [the Commissioner] must explain why significant probative evidence has been rejected." (citation and internal quotation marks omitted)). Here, plaintiff only makes a general and unsupported connection between "the medical evidence of [p]laintiff's pain" and the "associated deficits of concentration" to support an argument that Dr. Colonna's assessment is significant and probative evidence. Reply at 5.
The ALJ provides a detailed summary of Dr. Colonna's examination alongside a discussion of plaintiff's subjective testimony, both from his March 2012 Function Report and from Dr. Colonna's examination, and treatment records during that time period. See AR at 58-59. The ALJ noted several inconsistencies both in plaintiff's statements and his conduct that cast doubt on plaintiff's implication here that his concentration and attention deficits are linked to the intensity of pain felt from his symptoms. In particular, plaintiff made conflicting claims about getting along with others, and despite plaintiff's claims of not being able to work due to constant pain, plaintiff only sporadically sought treatment for his allegedly debilitating conditions. Id. at 59.
Thus, the record does not demonstrate Dr. Colonna's finding that plaintiff had moderately diminished attention and concentration constitutes significant and probative evidence. See Vincent, 739 F.2d at 1394-95. And to the extent the ALJ even rejected that evidence, the ALJ provided sufficient grounds for rejecting the limitations plaintiff raises here. See Magallanes, 881 F.2d at 755 (ALJ need not state "I reject the treating physician's opinions because . . ." so long as the record reveals specific, legitimate inferences that may be drawn from ALJ's opinion justifying decision not to adopt physician's opinion); see also Bickford v. Astrue, 2010 WL 4220531, at *11 (D. Or. 2010) ("[S]o long as the ALJ's decision is supported by medical evidence, a limitation to simple, repetitive work can account for moderate difficulties in concentration, persistence or pace."). Accordingly, the ALJ's RFC assessment that did not include specific limitations relating to plaintiff's alleged diminished attention and concentration was supported by substantial evidence here. See AR at 56.
2. Plaintiff's Use of a Cane
Plaintiff next argues the ALJ failed to adequately consider plaintiff's use of a cane when determining plaintiff could perform a limited range of light work in the RFC assessment, and cites to SSR 83-10 to support this proposition. P. Mem. at 7; AR at 56. Despite plaintiff's assertion to the contrary, there is no conflict between plaintiff's RFC and SSR 83-10. Here, the ALJ found plaintiff had the RFC to perform a limited range of light work, with a particular standing and walking limitation of no more than four hours in an eight-hour day. AR at 56; see Jones v. Colvin, 2014 WL 657914, at *7 (C.D. Cal. Feb. 19, 2014) (four-hour standing/walking limitation did not conflict with SSR 83-10 because ALJ did not determine that the plaintiff could perform a full range of light work, but simply a range of light work). Plantiff's four-hour limitation falls within the "frequent" activity range described by SSR 83-10. See id. (four-hour standing/walking limitation did not conflict with SSR 83-10's "frequent" definition because it fell within the "one-third" and "two-thirds" range); Roybal v. Colvin, 2013 WL 4768033, at *15 (C.D. Cal. Sept 4, 2013) ("the ALJ's RFC . . . limitation to 4 hours of standing or walking fits comfortably into the range of frequent activity for light jobs").
SSR 83-10 specifies that light work requires "frequent lifting and carrying of objects weighing up to 10 pounds," and "[s]ince frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours out of an 8-hour workday." SSR 83-10, 1983 WL 31251, at *5-6; see also 20 C.F.R. §§ 404.1567(b), 416.967(b).
SSR 83-10 defines "frequent" as "occurring more than one-third to two-thirds of the time." SSR 83-10, 1983 WL 31251, at *6.
Plaintiff's RFC requiring use of a cane for distances greater than 100 feet also does not conflict with SSR 83-10's description of light work as requiring frequent lifting and carrying of objects weighing up to ten pounds. Although certainly when using a cane plaintiff would have only one free hand, many ten-pound objects can be carried with one hand. Moreover, plaintiff's RFC only specified use of a cane for longer walks, thus allowing for use of two hands to lift and carry objects over short distances.
In addition, substantial evidence supports the ALJ's determination that plaintiff's RFC would permit a return to plaintiff's past work as a user support analyst. AR at 61. The work of a user support analyst is defined by the Dictionary of Occupational Titles ("DOT") as skilled, sedentary work. Id.; see DOT No. 032.262-0 10. Plaintiff notes vocational expert ("VE") Gregory Stewart Jones testified at plaintiff's hearing that plaintiff performed this role at a medium exertional level, and then appears to argue that the ALJ failed to consider how plaintiff could perform work as a user support analyst in light of his past exertional level despite not having full use of one of his hands due to the cane. AR at 23; P. Mem. at 7; Reply at 5.
But the VE specifically testified, and the ALJ consequently found, that plaintiff's combination of impairments would only permit work as a user support analyst as generally performed, not at plaintiff's prior exertional level. AR at 24, 61. In light of the rest of the ALJ's findings when determining plaintiff's RFC, therefore, it was reasonable for the ALJ to conclude that plaintiff's need to "use a cane for any distances greater than 100 feet" would not preclude plaintiff from returning to his past relevant work as a user support analyst as generally performed. Id. at 56; see SSR 96-9P, 1996 WL 374185, at *7 ("[I]f a medically required hand-held assistive device is needed only for prolonged ambulation, walking on uneven terrain, or ascending or descending slopes, the unskilled sedentary occupational base will not ordinarily be significantly eroded.").
Thus, the ALJ reasonably concluded plaintiff could perform this past relevant work, and plaintiff fails to credibly show otherwise.
3. Plaintiff's Swelling Limitations
Plaintiff also argues the ALJ failed to account for plaintiff's swelling in his left ankle when determining plaintiff's RFC because objective medical evidence supported plaintiff's subjective reports of limitations due to swelling. P. Mem. at 8; Reply at 5.
Plaintiff cites to his own statements made during the administrative hearing, noting he has to frequently elevate the ankle because of swelling, in addition to treatment notes indicating a swollen left ankle. AR at 8, 13, 345, 353, 384. But plaintiff does not attribute any functional limitations to this swelling, making it unclear how the RFC fails to account for the swelling or alternatively which accommodations should have been incorporated into the RFC. Moreover, the ALJ found plaintiff's testimony not credible to the extent it was inconsistent with the RFC, which plaintiff challenges and is discussed in Section C below. See AR at 57-61. In addition, the ALJ specifically addressed plaintiff's own testimony regarding the need to elevate his foot due to the ankle swelling, and noted other medical evidence indicating swelling and edema in the same area. AR at 56, 58, 60. Thus, without more, plaintiff has not shown the ALJ's RFC assessment fails to take into consideration the limitations of plaintiff's ankle swelling or that the ALJ's ultimate RFC determinations are unsupported by substantial evidence. C. The ALJ Properly Considered Plaintiff's Credibility
Plaintiff argues the ALJ failed to properly consider his credibility. P. Mem. at 8-9. Specifically, plaintiff contends the ALJ inaccurately characterized evidence when assessing plaintiff's credibility, and failed to consider a written statement by plaintiff's mother. Id.
The ALJ must make specific credibility findings, supported by the record. SSR 96-7p, 1996 WL 374186, at *2. To determine whether testimony concerning symptoms is credible, the ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ must determine whether a claimant produced objective medical evidence of an underlying impairment "'which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of malingering, an "ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Smolen, 80 F.3d at 1281; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider several factors in weighing a claimant's credibility, including: (1) ordinary techniques of credibility evaluation such as a claimant's reputation for lying; (2) the failure to seek treatment or follow a prescribed course of treatment; and (3) a claimant's daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47.
At the first step, the ALJ found plaintiff's medically determinable impairments could reasonably be expected to cause the symptoms alleged. AR at 57. At the second step, because the ALJ did not find any evidence of malingering, the ALJ was required to provide clear and convincing reasons for discounting plaintiff's credibility. The ALJ discounted plaintiff's credibility here in part because: (1) plaintiff alleged in his applications for benefits that he stopped working in March 2008 because of his conditions, but was also receiving unemployment benefits at that time, which required him to declare he was willing and able to work; (2) treatment records from 2009 through 2013 suggest plaintiff only sporadically sought treatment for conditions he alleged were severe and constant; and (3) his activities of daily living were inconsistent with his alleged symptoms. Id. at 57-61.
The ALJ found plaintiff's credibility unreliable in part because his statements and allegations in his applications for benefits were directly contradicted by his allegation of being willing and able to work for the purposes of receiving unemployment benefits. Id. at 60. The ability to work while allegedly disabled is a clear and convincing reason to find a claimant less credible. See Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009) (a claimant's employment and seeking of work while allegedly disabled are proper grounds for discounting his testimony); Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988) (affirming the ALJ's adverse credibility finding due, in part, to claimant's holding himself out as available to work). Plaintiff argues the ALJ misconstrued what was actually "an unsuccessful work attempt" but offers no further explanation, or citation to the record, to support this contention.
In contrast, substantial evidence supports the ALJ's finding that plaintiff's credibility is unreliable due in part to inconsistent allegations in the various benefit applications. Plaintiff's own testimony acknowledges both collecting unemployment and seeking disability benefits during 2011 and 2012, despite noting in a disability report that he stopped working in March 2008 because of his various conditions. AR at 11, 282. Moreover, the ALJ noted plaintiff also presented inconsistencies in his testimony regarding the reasons he stopped working in 2011. Id. at 60-61. Plaintiff testified he stopped working for a computer printer company because he could no longer lift the printers, but told Dr. Colonna he stopped because he was laid off. Id. at 6-7, 349.
The ALJ also discounted plaintiff's credibility because the alleged severity of his symptoms was not supported by the objective medical evidence, in part due to plaintiff inconsistently seeking out medical treatment for his various impairments. Id. at 57-58; see Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (lack of corroborative objective medical evidence may be one factor in evaluating credibility). Plaintiff asserts he only sporadically sought treatment due to limited finances. Reply at 8. As an initial matter, plaintiff appears to raise this claim for the first time in his Reply, which is not the proper place to raise additional grounds for relief. See Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) ("arguments raised for the first time in a reply brief are waived").
In any event, the ALJ detailed how plaintiff's treatment records from at least 2008 to 2011 coincided mainly with plaintiff's requests for help with his disability benefits applications. AR at 57, 333, 335-336. The ALJ also noted plaintiff received at least one referral to a medical clinic following a physician examination but did not appear to pursue the treatment, yet in other instances demonstrated an ability to regularly obtain prescription narcotic medication. Id. at 57, 332-333; see Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (finding it appropriate to consider "an unexplained, or inadequately explained, failure to seek treatment").
The ALJ's also found plaintiff less credible because his daily activities were inconsistent with his alleged limitations. AR at 61; see Tommasetti, 533 F.3d at 1039 (inconsistency between a claimant's alleged symptoms and his daily activities may be a clear and convincing reason to find a claimant less credible); Bunnell, 947 F.2d at 346-47 (same). In a March 24, 2012 Function Report, plaintiff stated he could prepare his own meals, take his laundry to his mother's house once a week, and go grocery shopping once or twice a week. AR at 61, 254-255. The ALJ also noted that plaintiff's mother stated in a March 26, 2012 Third Party Function Report that plaintiff could drive a car and help unload the dishwasher and take out the trash. Id. at 273.
Nonetheless, plaintiff argues the ALJ committed legal error by failing to adequately consider plaintiff's mother's written statements regarding his symptoms and ability to work in the Third Party Function Report. P. Mem. at 9. Aside from one comment regarding a note made by plaintiff's mother in her Third Party Function Report, the ALJ did not specifically address plaintiff's mother's statements. AR at 52-62.
In cases in which the ALJ recognized the lay witness testimony, the issue is whether the ALJ sufficiently articulated or justified the rejection of that lay testimony. See Molina v. Astrue, 674 F.3d 1104, 1115-17 (9th Cir. 2012); Valentine v. Astrue, 574 F.3d 685, 693-94 (9th Cir. 2009). On the other hand, it is error for an ALJ to fail to discuss or even acknowledge lay witness testimony. See Molina, 674 F.3d 1115 (finding ALJ erred because "lay witness testimony cannot be disregarded without comment") (citation and internal quotation marks omitted). In these cases in which the ALJ did not even acknowledge the existence of lay witness testimony, the question is whether this error is harmless. Such error is not harmless unless this court "can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination." Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006).
Here, although the ALJ's opinion contains one reference to plaintiff's mother's testimony, defendant states the ALJ did not specifically address her statements, thereby appearing to take the position that the ALJ erred by failing to discuss or acknowledge plaintiff's mother's testimony. D. Mem. at 10. But defendant argues this error is harmless because the ALJ's reasons for discounting plaintiff's credibility would also apply to his mother's testimony. Id. (citing Valentine, 574 F.3d at 694 (finding ALJ's rejection of lay witness testimony, based in part on the same reasons for discounting the plaintiff's own allegations, constituted "germane reasons" for rejecting lay witness testimony)); see also Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (citing Lewis, 236 F.3d at 511) (inconsistency with medical evidence is a germane reason for discrediting the testimony of lay witnesses).
Despite the single reference to plaintiff's mother's testimony, the court agrees the ALJ erred in failing to discuss that testimony, but concludes such error was harmless. As discussed above, the ALJ offered clear and convincing reasons for rejecting plaintiff's testimony, and in light of the similarity between both testimonies regarding the severity of plaintiff's pain, activities of daily living, and other limitations, those reasons are sufficient to also reject plaintiff's mother's testimony. See Smolen, 80 F.3d at 1281; AR at 5-21, 252-271, 273-280, 299.
Indeed, it is well settled that a court must "not reverse for errors that are 'inconsequential to the ultimate nondisability determination.'" Molina, 674 F.3d at 1117 (citations omitted). In particular, "[w]here lay witness testimony does not describe any limitations not already described by the claimant, and the ALJ's well-supported reasons for rejecting the claimant's testimony apply equally well to the lay witness testimony," the ALJ's error in discounting the lay witness testimony is harmless. Id. The lay testimony does not need to be identical, only similar. Valentine, 574 F.3d at 694 (where "the ALJ provided clear and convincing reasons for rejecting [the claimant's] own subjective complaints, and because [the lay] testimony was similar to such complaints, it follows that the ALJ also gave germane reasons for rejecting [the lay] testimony"). That is the case here. Accordingly, as in Molina, the ALJ's error here was harmless because the same evidence cited by the ALJ as discrediting plaintiff's testimony also discredits the duplicative statements of plaintiff's mother. See Molina, 674 F.3d at 1122.
In sum, the reasons for finding plaintiff less credible provided by the ALJ were clear and convincing and supported by substantial evidence. As such, the ALJ did not err in discounting plaintiff's credibility. D. The Appeals Council Did Not Err In Denying Review
Plaintiff asserts the Appeals Council failed to consider the additional evidence submitted and failed to incorporate a copy of that evidence into the administrative record. P. Mem. at 3, 9-10. Plaintiff attached the new evidence to his memorandum as Exhibit B, and provided copies of these documents to defendant's counsel prior to filing the memorandum. Id. at 3. Exhibit B contains a letter from plaintiff's counsel, dated April 16, 2014 and addressed to Olive View, requesting a copy of plaintiff's medical records there from February 22, 2014 up to the present. See P. Mem., Ex. B at 1. Exhibit B then contains plaintiff's Olive View medical records through April 23, 2014, when Olive View printed them. Id. at 2-25. Lastly, Exhibit B contains a May 19, 2014 questionnaire from Dr. Aksone Nouvong, a treating podiatrist, titled "Physical Medical Source Statement, 1.00 listings." Id. at 26-30.
The court notes that Exhibit B, as organized, makes it difficult to determine the earliest date of any records submitted from Olive View during the period plaintiff's counsel requested in the April 16, 2014 letter. As far as the court can tell, though plaintiff's counsel requested files beginning February 22, 2014, Exhibit B only contains records spanning March and April 2014, with a particular April 3, 2014 note referencing a February 7, 2014 CT scan. See P. Mem., Ex. B at 9.
In its denial of plaintiff's request for review, the Appeals Council found the new evidence plaintiff submitted did not relate back to the relevant period and did not consider it. AR at 31. Therefore, the Appeals Council did not make the new evidence a part of the record. Defendant asserts the Appeals Council properly declined to consider the additional evidence plaintiff submitted. D. Mem. at 11-12.
As an initial matter, the court has jurisdiction to address plaintiff's claim that the Appeals Council failed to consider the additional evidence submitted by plaintiff. See Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) ("[W]e properly may consider the additional materials because the Appeals Council addressed them in the context of denying Appellant's request for Review."); see also Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993) (citations omitted) (stating a district court "consider[s] on appeal both the ALJ's decision and the additional material submitted to the Appeals Council").
To the extent plaintiff alleges the Appeals Council rejected the additional evidence and failed to incorporate it into the administrative record in violation of various provisions of the Hallex manual (see P. Mem. at 3), plaintiff is not entitled to relief. See Roberts v. Comm'r of Soc. Sec. Admin., 644 F.3d 931, 933 (9th Cir. 2011) (stating the Hallex manual "does not carry the force of law and is not binding upon the agency") (internal citation omitted).
The Appeals Council will consider "any new and material evidence submitted to it which relates to the period on or before the date of the administrative law judge hearing decision." 20 C.F.R. § 404.976(b)(1); see also § 416.1476(b) ("[T]he Appeals Council will consider the evidence in the administrative law judge hearing record and any new and material evidence only if it relates to the period on or before the date of the administrative law judge hearing decision."). "[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence." Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012); Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011); see also Borrelli v. Comm'r of Soc. Sec., 570 Fed. Appx. 651, 2014 WL 1492736, at *1 (Apr. 17, 2014) (remand necessary when "reasonable possibility" exists that "the new evidence might change the outcome of the administrative hearing"). When evidence is submitted which does not relate to the period on or before the date of the ALJ's decision, "the Appeals Council will return the additional evidence . . . with an explanation as to why it did not accept the additional evidence." 20 C.F.R. § 404.976(b)(1). A claimant does not need to show good cause before submitting new evidence to the Appeals Council. Brewes, 682 F.3d at 1162. Here, the relevant period was on or before November 13, 2013, the date of the ALJ's decision. 20 C.F.R. § 416.1476(b)(1); AR at 62.
It is unclear which portions of the additional evidence plaintiff argues relate back to the period on or before November 13, 2013. In his memorandum, plaintiff states "the medical records that . . . should have been associated with the administrative record are attached," indicating plaintiff believes the Appeals Council should have incorporated all of the evidence contained in Exhibit B, and therefore implying that all of the evidence in Exhibit B relates back to the relevant time period. P. Mem. at 3. Later in the memorandum, plaintiff specifically references March 2014 EMG results, which plaintiff claims resulted in a diagnosis of neuropathy, and "[p]odiatry records from April 2014," which plaintiff argues indicates plaintiff had bilateral lower extremity edema, lumbar degenerative disk disease, and decreased strength and range of motion of the left ankle. Id. at 10. Plaintiff then argues, without citation, that "the addition of these documents at the Appeals Council level of review reveals that the ALJ's decision is not supported by substantial evidence," but provides no basis for how those particular pieces of evidence relate back to the period on or before the ALJ's decision. Id.
In a March 20, 2014 letter to the Appeals Council, plaintiff's counsel sought approval for plaintiff to file a new application for benefits while his previous action was pending before the Appeals Council, pursuant to SSR 11-1p. AR at 311. SSR 11-1p allows a claimant to request Appeals Council permission to file a new disability claim before review of the pending claim has been completed if the claimant has "additional evidence that does not relate to the period on or before [the ALJ's decision]" that also "shows a new critical or disabling condition." SSR 11-1p, 2011 WL 3962767, at *3. Indeed, as plaintiff's counsel noted in the March 20, 2014 letter, the basis of plaintiff's request to file a new claim "is that [plaintiff] has a new neurological diagnosis that has not previously been adjudicated," conceding the purported March 2014 neuropathy diagnosis does not relate back to on or before the ALJ's decision. AR at 311. But plaintiff's counsel then states "this new diagnosis may in fact relate back in time" and cites to 20 C.F.R. § 404.970(b), which, similar to 20 C.F.R. §§ 404.976(b)(1) and 416.1476(b), allows the Appeals Council to consider "new and material evidence . . . only where it relates to the period on or before the date of the [ALJ's] decision." Id. at 312; see 20 C.F.R. § 404.970(b).
As mentioned, plaintiff's papers only provide unsupported and conclusory allegations that the March 2014 EMG results relate back to the period on or before the November 13, 2013 ALJ decision and therefore should have been considered by the Appeals Council. P. Mem. at 10. Although plaintiff's counsel left open the possibility that these EMG results could relate back in the March 20, 2014 letter to the Appeals Council, plaintiff has not shown how these records are material to plaintiff's impairments during the relevant time period considered by the ALJ. Thus, this additional evidence does not relate back to the relevant period of the ALJ's decision. Moreover, the court reaches the same conclusion regarding the April 2014 podiatry records, as without more evidentiary support offered by plaintiff, there is no basis for finding the Appeals Council erred in failing to make them part of the administrative record.
Moreover, as far as the court can tell, plaintiff's assertion that March 2014 treatment notes of an EMG resulted in a diagnosis of "severe ankle and subtalar joint arthritis with neuropathy" is unsupported by the evidence submitted in Exhibit B. See P. Mem. at 10. Exhibit B contains Olive View treatment notes, dated April 4, 2014, dictated and electronically signed by Dr. Nastaran Rafiei, a neuromuscular attending physician following two pages charting results of an EMG test performed March 19, 2014. P. Mem., Ex. B at 2-4. Those notes also indicate Dr. Jeremy Cholfin, a clinical neurophysiology fellow, participated in some fashion in the evaluation of plaintiff's March 19, 2014 EMG test. Id. at 4. Dr. Rafiei states plaintiff's case "is an abnormal study" and that there is "electrodiagnostic evidence of a moderate sensorimotor polyneuropathy with predominantly axonal features," but then notes "clinical correlation [is] recommended." Id. Exhibit B also contains an April 3, 2014 treatment note electronically signed by Dr. Saieh Khademi that says "Patient's Diagnosis(es): severe ankle and subtalar joint arthritis." Id. at 7. However, no similar diagnosis of neuropathy can be found there or anywhere else in Exhibit B. --------
Plaintiff contends in his Reply that the May 19, 2014 questionnaire from Dr. Nouvong relates back to the relevant period. Reply at 9-10. Plaintiff argues the Appeals Council erred in failing to consider this evidence because Dr. Nouvong's handwritten note indicates she had been treating plaintiff several times over the past nine months, which plaintiff notes dates back to August 2013 and thus falls within the period on or before the ALJ's November 13, 2013 decision. Reply at 10; see P. Mem., Ex. B at 26-27.
When asked to indicate work-related exertional limitations within an eight-hour day, Dr. Nouvong opined plaintiff could sit six hours and walk and stand less than two hours. P. Mem., Ex. B at 27. Dr. Nouvong also opined plaintiff could only lift or carry less than ten pounds on both an occasional and frequent basis, and would have limited push and pull ability in his upper extremities. Id. at 27-28. Regarding plaintiff's non-exertional postural limitations, Dr. Nouvong indicated plaintiff could occasionally stoop, kneel, crouch, and balance, but never crawl or climb. Id. at 28-29. Dr. Nouvong also opined plaintiff would have occasional manipulative limitations reaching and handling. Id. at 29. Lastly, Dr. Nouvong estimated these limitations would cause plaintiff to miss work three times per month. Id. According to plaintiff, this questionnaire establishes the continued existence of a listing level impairment dating back to the period of the ALJ's November 13, 2013 decision, as well as a lesser RFC. Reply at 9-10.
Plaintiff's error contention fails for several reasons. First, it is unclear how directly Dr. Nouvong's May 19, 2014 questionnaire relates to the time period before the ALJ's decision on November 13, 2013. 20 C.F.R. §§ 404.976(b)(1); 416.1476(b). As noted, Dr. Nouvong stated she had been treating plaintiff several times over the past nine months, which would date back to August 2013. P. Mem., Ex. B at 26-27. Dr. Nouvong contributes several treatment notes in the Olive View medical records plaintiff submitted as part of Exhibit B, all of which span February 2014, at the earliest, through April 2014. But the administrative record contains medical records from Olive View documenting plaintiff's treatment there during the relevant time period, dated from February 8, 2013 to September 4, 2013, thus encompassing August 2013. AR at 384-403. Notably, Dr. Nouvong does not appear in any of those records. See id.
On the other hand, the administrative record also contains a separate set of medical records from Olive View, Exhibit 12F, which is described as claimant-supplied evidence dated from October 26, 2012 to October 22, 2013. AR at 431-435. In fact, Exhibit 12F contains two pages of treatment notes dated in October 2013 (AR 431, 434), two undated pages (AR 433, 435), and a progress note from registered nurse Berta Mendoza, dated December 19, 2013, which would fall after the date of the ALJ's November 2013 decision (AR at 432). Dr. Nouvong is listed indirectly as an admitting physician only on this December 19, 2013 note, and on no other Olive View records within the administrative record. See AR at 384-403, 431-435. Thus, the court is hesitant to find Dr. Nouvong's May 2014 questionnaire evidences as clear a link as plaintiff asserts to Dr. Nouvong's purported treatment of plaintiff during the time period relevant to the ALJ's decision, but recognizes at least some evidence exists, however minimal.
Further, in the May 19, 2014 questionnaire, Dr. Nouvong diagnosed plaintiff with "advanced left ankle osteoarthritis," stating the basis for the diagnosis as an x-ray and CT scan. P. Mem., Ex. B at 26-27. Neither the x-ray nor CT scan were dated, though the court notes Dr. Nouvong signed a treatment record on April 3, 2014 that refers to a February 7, 2014 CT scan. Id. at 9-10. But the ALJ's decision already recognized and considered plaintiff's severe impairment of post-traumatic osteoarthritis in his left ankle following surgery. AR at 54. To the extent this new evidence leads to a diagnosis also present during the time period of the ALJ's decision, then Dr. Nouvong's questionnaire may relate to the relevant period because it permits a comparison of the changes to plaintiff's ankle. See Martinez v. Astrue, 2014 W L 310387, at *19 (N.D. Cal. Jan. 28, 2014) (X-rays and MRIs taken "just days and weeks after the ALJ rendered his decision . . . relates to the period before the ALJ's decision because it permits a comparison of the changes to Plaintiff's spine that occurred after the 2007 MRIs were taken."); Oliver v. Astrue, 2013 WL 211131, at *23-25 (N.D. Cal. Jan. 16, 2013) (evidence submitted to the Appeals Council related to the time before the ALJ's decision because Asperger's Disorder is "a developmental disorder, not a condition which suddenly appeared after hearing."). But here, unlike the x-rays and MRIs taken not long after the ALJ's decision in Martinez, plaintiff submitted evidence of a May 2014 document referencing an undated x-ray and a CT scan taken nearly three months after the ALJ's decision. Moreover, Dr. Nouvong does not state plaintiff's particular limitations and other symptoms, as described in the May 2014 questionnaire, specifically applied as early as November 2013.
Despite plaintiff's assertion that these records are retrospective in nature, plaintiff has provided no basis for why Dr. Nouvong's opinions were not predicated simply on the most recent x-ray and CT scan, as the questionnaire appears to indicate. Thus, because the court can find no clear basis for discerning what specific information from Dr. Nouvong's questionnaire bears on the degree of plaintiff's functional limitations prior to November 13, 2013, as opposed to plaintiff's limitations after that time period, the court is hesitant to find the questionnaire "relates back" to that relevant time period as clearly as plaintiff contends.
Second, even assuming the new evidence - the purported March 2014 diagnosis of neuropathy, the April 2014 podiatry records, and Dr. Nouvong's May 19, 2014 questionnaire - should have been included in the record for purposes of judicial review, the ALJ's decision was supported by substantial evidence and was free of legal error. See Borrelli, 2014 WL 1492736, at *1; see also Taylor, 659 F.3d at 1232 (The reviewing court's role is "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error."). To warrant remand, plaintiff must demonstrate "a 'reasonable possibility' that the new evidence would have changed the outcome of the administrative hearing." Mayes, 276 F.3d at 462.
Plaintiff has not made the requisite showing here. As discussed, plaintiff does not cite to specific records within Exhibit B to support his claim of a March 2014 neuropathy diagnosis, and the only records the court could locate contain physician notes that fall short of a firm diagnosis of neuropathy. See P. Mem., Ex. B at 2-4, 7. Similarly, plaintiff did not provide specific citations to support his claim that April 2014 podiatry records within Exhibit B indicate plaintiff had bilateral lower extremity edema, lumbar degenerative disk disease, and decreased strength and range of motion of the left ankle. P. Mem. at 10. Nonetheless, the records contained in Exhibit B are not necessarily inconsistent with the ALJ's decision. The ALJ's RFC assessment considered plaintiff's severe impairments, including back disease. See AR at 54, 57-58. The ALJ also discussed plaintiff's treatment at Olive View in February 2013, where examinations revealed diffuse non-pitting edema. Id. at 60. The ALJ found plaintiff had the severe impairment of osteoarthritis in the left ankle, and discussed the treatment of plaintiff's ankle from March 2008 to at least July 2013. Id. at 54, 57, 60. And while Dr. Nouvong's questionnaire provides exertional limitations that differ from those determined by the ALJ, those differences are slight, and appear based on a diagnosis stemming from imaging tests performed several months after the period of the ALJ's decision, which only revealed a diagnosis of left ankle osteoarthritis already present during the relevant time period. AR at 56; P. Mem., Ex. B at 26-30. The ALJ's decision is therefore supported by substantial evidence.
In sum, plaintiff has failed to demonstrate that new medical evidence submitted to the Appeals Council after the ALJ decision relates back to the period under consideration in that decision, and moreover how that evidence would be likely to affect the decision's outcome. Thus, the Appeals Council did not err in its treatment of the new evidence. E. A Subsequent Successful Application Is Not Reason for Remand
Plaintiff argues remand is warranted because the Social Security Administration awarded him disability benefits in a subsequent claim. P. Mem. at 10-12. Plaintiff contends this subsequent award constitutes new, material evidence. Id. at 10.
As discussed above, the ALJ denied plaintiff's claim on November 13, 2013. AR at 49-66. Plaintiff filed a request for a review of the decision and submitted additional evidence dated after the decision date. See id at 47, 306-310. On July 3, 2014, the Appeals Council denied plaintiff's request for review, stating specifically that the evidence concerned a time after the ALJ's decision and was therefore irrelevant. Id. at 31. The Appeals Council returned the evidence to plaintiff and informed him he could use it in a new claim, and that if he were to file a new claim within six months after receipt of its denial of his request for review, he could use December 12, 2013, the date of his request for review, as the date of his new claim. Id. Plaintiff attached the notice of award of supplemental security income, dated September 5, 2014, which indicates he filed his subsequent application for benefits on March 20, 2014, the same date the Agency determined he became eligible for SSI. P. Mem., Ex. A at 1-2.
Two Ninth Circuit cases provide guidance as to when a case should be remanded in order to reconcile a subsequent grant of disability benefits with a prior decision denying benefits. In Bruton v. Massanari, 268 F.3d 824 (9th Cir. 2001), the plaintiff's initial disability application was denied on April 9, 1996 but a subsequent application was granted on February 26, 1999, finding the plaintiff was disabled as of April 10, 1996. Id. at 826-27. The Ninth Circuit held that remand of the initial application was not warranted because the "second application involved different medical evidence, a different time period, and a different age classification." Id. at 827.
In contrast, the Ninth Circuit in Luna v. Astrue, 623 F.3d 1032 (9th Cir. 2010), ruled that, where there is a "reasonable possibility" that the subsequent grant of benefits was based on new evidence not considered by the ALJ as part of the first application, "further consideration of the factual issues is appropriate to determine whether the outcome of the first application should be different." Id. at 1035. There, the court could not conclude whether the two decisions were "irreconcilable or inconsistent" because there was only one day between the denial of the first application and the disability onset date of the second application, and it was uncertain whether the plaintiff may have presented different medical evidence to support the two applications or there might be some other reason to explain the change. Id.
This case differs from Luna in material respects. First, in Luna the Commissioner stipulated to remand, but disagreed with the plaintiff on the terms of remand. Id. at 1034. In this case, the Commissioner does not stipulate to remand and does not concede there is any legal or factual basis for reversing the ALJ's decision on the first application. D. Mem. at 13-14; see Mulay v. Colvin, 2015 WL 1823261, at *7 (C.D. Cal. Apr. 22, 2015).
Second, in Luna there was no opportunity for the claimant to submit the medical evidence supporting the second application to the district court. The initial ALJ decision was issued on January 27, 2006 and the second application was granted on August 20, 2007 while the case was on appeal. Luna, 623 F.3d at 1034. The facts here are different. Plaintiff only submitted the notice of award, but not the subsequent application itself, nor the accompanying medical evidence to support it - unless the evidence was the records in Exhibit B. Though plaintiff enclosed Exhibit B, plaintiff only generally states those records were attached because they should have been made part of the administrative record, and never states the records in Exhibit B also made up all or part of the evidence submitted in plaintiff's subsequent March 20, 2014 disability application. See P. Mem. at 3. If plaintiff in fact submitted additional evidence with his March 20, 2014 application, nothing prevented plaintiff from submitting the medical evidence supporting the second application so this court could determine whether the two applications are inconsistent or irreconcilable. Plaintiff should not be able to "engineer" a remand by failing to present evidence in his control and where he knows what medical evidence was submitted to the agency in the second application. See Parra, 481 F.3d at 746 ("The claimant bears the burden of proving steps one through four, consistent with the general rule that at all times, the burden is on the claimant to establish his entitlement to disability insurance benefits.") (internal quotations omitted).
Third, all indications in the record before the court are that plaintiff's subsequent application involved a different time period than that in the application at issue here. Indeed, as recounted above, plaintiff filed the second application based on a new diagnosis of neuropathy, and there is every reason to believe the records submitted in support of the second application, like those in Exhibit B, pertain to a later time period. The notice of award in Exhibit A does not state the basis for the subsequent grant of benefits, but clearly states plaintiff was "found disabled on March 20, 2014," four months after the date of the ALJ's decision in this case. See P. Mem., Ex. A at 2. Thus, without more, there is nothing in the record to suggest to the court that the evidence considered in the subsequent application also supports disability earlier than March 20, 2014, much less earlier than November 13, 2013, the date of the ALJ's decision. // //
V.
CONCLUSION
IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. DATED: January 7, 2016
/s/_________
SHERI PYM
United States Magistrate Judge