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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

10 11 RHONDA STETSON, No. 1:19-cv-00313-GSA 12 Plaintiff, 13 v. ORDER DIRECTING ENTRY OF 14 JUDGMENT IN FAVOR OF ANDREW SAUL, Commissioner of Social COMMISSIONER OF SOCIAL SECURITY 15 Security, AND AGAINST PLAINTIFF

16 Defendant. 17 18 19 I. Introduction 20 Plaintiff Rhonda Stetson (“Plaintiff”) seeks judicial review of the final decision of the 21 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 22 supplemental security income pursuant to Title XVI of the Social Security Act. The matter is 23 currently before the Court on the parties’ briefs which were submitted without oral argument to 24 the Honorable Gary S. Austin, United States Magistrate Judge.1 See Docs. 15, 16 and 17. Having 25 reviewed the record as a whole, the Court finds that the ALJ’s decision is supported by substantial 26 evidence and applicable law. Accordingly, Plaintiff’s appeal is denied. 27 ///

28 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 7 and 8. 1 II. Procedural Background 2 On April 16, 2015, Plaintiff filed an application for supplemental security income alleging 3 disability beginning February 23, 2014. AR 23. The Commissioner denied the application 4 initially on June 10, 2015 and following reconsideration on November 13, 2015. AR 23. 5 On December 15, 2015, Plaintiff filed a request for a hearing. AR 23. Administrative 6 Law Judge Ruxana Meyer presided over an administrative hearing on September 11, 2017. AR 7 56-80. Plaintiff appeared and was represented by an attorney. AR 56. On January 17, 2018, the 8 ALJ denied Plaintiff’s application. AR 23-33. 9 The Appeals Council denied review on March 1, 2019. AR 4-10. On May 6, 2019, 10 Plaintiff filed a complaint in this Court. Doc. 1. 11 III. Factual Background 12 A. Plaintiff’s Testimony and Reports 13 Plaintiff (born February 1960) lived in an apartment with her daughter, son-in-law and 14 four grandsons aged ten to eighteen. AR 60. After dropping out of high school, Plaintiff resumed 15 her education and completed a GED, an associate degree in business management and 16 criminology/corrections, and a certification in medical administration (billing and coding). AR 17 63. 18 Plaintiff last worked performing home care for her late fiancé during his final illness. AR 19 63. After her fiancé died, Plaintiff cared for another individual but was discharged when her own 20 medical care resulted in excessive absences. AR 63-64. While Plaintiff pursued a bachelor’s 21 degree from CSU-Fresno from 2003 to 2006, she did office work as a work-study student. AR 22 64-65. 23 Plaintiff stopped driving in March 2017, when her headaches were “really bad” and her 24 vision was distorted. AR 61. Thereafter, Plaintiff consulted an ophthalmologist who performed 25 laser surgery to reduce the pressure in her eyes. AR 62, 72-73. 26 Plaintiff experienced back and leg pain and constant severe headaches. AR 67-68. 27 Plaintiff’s medications reduced her headache pain, but if Plaintiff did not feel well in the morning 28 she was unable to take her medication and her headache was constant. AR 62-63. Plaintiff 1 described several types of headaches, including a “soft” headache that was sometimes present 2 when she awoke, and a “sledgehammer,” accompanied by dizziness and nausea that sent her to 3 bed in the dark for its duration. AR 69. Sometimes the headache produced a sensation akin to 4 her brain swelling in her head. AR 69. She also experienced bright lights (visual aura) and a 5 sensation like icepicks piercing her head. AR 71. Neck tightness and pain sometimes 6 accompanied the headaches. AR 71. 7 Plaintiff estimated that she could sit for ten or fifteen minutes before needing to change 8 position. AR 68. She could stand for twenty to thirty minutes. AR 68. She could walk about 9 twenty minutes before experiencing pain in her legs and feet. AR 68. She avoided climbing 10 stairs. AR 71. Plaintiff thought she could lift about ten pounds. AR 68. She could not lift a full 11 laundry basket, but could push it with her foot if her daughter or a grandson was not available to 12 help her. AR 69. 13 On a typical day Plaintiff arose at about 6:30 a.m., started coffee and woke her three 14 youngest grandsons for school. AR 66. After her daughter and grandsons left for the day 15 Plaintiff had coffee, took her medications and relaxed until her medications took effect. AR 66. 16 Plaintiff would then load the dishwasher and do a load of laundry. AR 66. Although Plaintiff 17 could not bend to pick up dirty laundry throughout the apartment, her daughter collected it in a 18 basket and put it near the washing machine within Plaintiff’s easy reach. AR 66. Plaintiff would 19 then take a walk to check for mail, have lunch and take her mid-day medications. AR 66. 20 Because her medications caused drowsiness, Plaintiff took a nap in the early afternoon before 21 arising to prepare a snack for her grandsons when they returned from school. AR 66-67. Plaintiff 22 was usually in bed by ten or eleven o’clock. AR 67. 23 On May 13, 2015, Plaintiff completed a headache questionnaire, AR 216-17. Plaintiff 24 reported that her last four headaches had been the prior four days, explaining that the headaches 25 never stopped. AR 216. She explained that her headaches were painful (“like someone hit me 26 with a baseball bat”) and accompanied by dizziness, nausea, vomiting and nose bleeds. AR 216. 27 Her medications included Topiramate, Naproxen and Sumatriptan Succinate. AR 217. Plaintiff 28 could not drive when taking her medications. AR 217. 1 Plaintiff reiterated her headache symptoms in an adult function report. AR 219-26. 2 Plaintiff tried to do housework and keep appointments despite her headache pain but was unable 3 to enjoy her former active lifestyle. AR 220. Unless she was incapacitated, Plaintiff also tried to 4 prepare healthy meals, sweep and do the dishes and laundry. AR 221. She shopped for groceries 5 and household products twice monthly with help. AR 222. She watched movies and did arts and 6 crafts. AR 223. Her illness affected her ability to walk, climb stairs, bend, stand, reach, talk, 7 remember and concentrate. AR 224. 8 B. Medical Records 9 In February 2014, Plaintiff saw Jessie Sumner, PA-C, with complaints of headache and 10 neck pain. AR 298-300. Ms. Sumner diagnosed neck strain and cervicalgia and prescribed 11 Cyclobenzadrine Hydrochloride and Naprosyn (naproxen). AR 299. The administrative record 12 includes Ms. Sumner’s treatment notes through March 2015. AR 335-45, 352-55, 360-72 13 In March 2014, Ms. Sumner referred Plaintiff for physical therapy for her neck pain. AR 14 304-12, 323-29. On intake, Plaintiff reported moderate pain, frequent severe headaches, 15 difficulty concentrating and moderately disturbed sleep. AR 307. However, she was still able to 16 look after herself, lift heavy weights, but with pain; do her usual work but no more; drive with 17 slight neck pain; and, read with moderate neck pain. AR 307. Most recreational activities were 18 painful. AR 307. Hot showers mitigated the pain. AR 308, 311. Wayne Troxell, D.P.T., noted 19 reduced motion of the cervical spine and reduced strength (4-/5). AR 311. Dr. Troxell diagnosed 20 chronic neck pain and cervicogenic headaches with noted trigger points, myofascial dysfunction 21 and poor posture. AR 312. The doctor recommended therapeutic exercise, postural training, 22 home exercise and stretching, mechanical traction and manual therapy for joint and soft tissue 23 mobilization, inhibition of muscle ton/spasm and normalization of tissue extensibility. AR 312. 24 In early April 2014, when Plaintiff had no further authorized visits, Dr. Troxell discharged 25 Plaintiff although her condition had not improved with therapy. AR 323. 26 In May 2014, Ms. Sumner noted symptoms of ataxia, prescribed Topamax and referred 27 Plaintiff for a neurology evaluation. AR 336. Plaintiff’s insurer denied coverage for a CT scan of 28 the head. AR 337. In June 2014, Plaintiff reported severe photophobic pain. AR 339. By July 1 2014, Plaintiff reported dizziness, nausea and a visual aura before the onset of a headache. AR 2 342. In August, Plaintiff reported increased tension and aura before a headache. AR 344. At 3 Plaintiff’s annual physical examination in December 2014, Ms. Sumner noted that Plaintiff had 4 multiple chronic illnesses including asthma, a functional murmur and diabetes.2 AR 352. 5 Beginning in July or August 2015, Plaintiff transferred her treatment to Family Health 6 Services. AR 400-08, 462-511. Eliezar Alvarez, P.A., noted that Plaintiff was not then under the 7 care of a neurologist. AR 400. Plaintiff’s A1C was very high. AR 404. Family Health Services 8 continued Ms. Sumner’s practice of giving Plaintiff a Toradol (Keterolac) injection to relieve 9 severe headache pain that had continued for multiple days. AR 405-06, 408-09. On August 25, 10 2015, David Cheyney, D.O., reviewed an MRI of Plaintiff’s brain and found it to be normal with 11 no evidence of acute neurologic process. AR 410. 12 Beginning in November 2015, Michael Alan Medeiros, M.D., treated Plaintiff’s 13 headaches. AR 505-11. Dr. Medeiros noted that Topamax reduced the severity of Plaintiff’s 14 headaches but she could not tolerate Elavil. AR 505. Plaintiff was also taking Zoloft, an 15 antidepressant, and Zofran for nausea. AR 505. 16 In spring and summer 2016, David B. Kaye, M.D., treated Plaintiff for anatomical narrow 17 angle glaucoma. AR 445-61. In June 2016, Dr. Kaye performed laser peripheral iridotomy.3 AR 18 445. 19 Beginning in February 2017, Dolores Davis, F.N.P., treated Plaintiff for left knee pain and 20 a knot behind the knee. AR 466-68, 472-500. 21 Beginning in April 2017, Henry Kang, M.D., Bruce Noyes, PA-C, and Charles Mackey, 22 PA-C, treated Plaintiff for cervical upper back pain and intractable headache. AR 464-65, 469- 23 98. In June 2017, Dr. Kang diagnosed cervical disc disease; spondylosis of the cervical region 24 /// 25 ///

26 2 Test results in the Ms. Sumner’s notes consistently showed Plaintiff’s blood glucose to be well controlled. 3 Laser peripheral iridotomy is a medical procedure which uses a laser device to create a hole in the iris, thereby 27 allowing aqueous humor to traverse directly from the posterior to anterior chamber of the eye, thus relieving the pupillary block of anatomical narrow angle glaucoma. https://eyewiki.aao.org/Laser_Peripheral_Iridotomy 28 (accessed April 8, 2020). 1 without myelopathy or radiculopathy; and, cervical spine stenosis.4 AR 464. Dr. Kang prescribed 2 Mobic and Norco, and continued Plaintiff’s Baclofen prescription. AR 464, 469. 3 IV. Standard of Review 4 Pursuant to 42 U.S.. §405(g), this court has the authority to review a decision by the 5 Commissioner denying a claimant disability benefits. “This court may set aside the 6 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on 7 legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. 8 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence 9 within the record that could lead a reasonable mind to accept a conclusion regarding disability 10 status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less 11 than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation 12 omitted). When performing this analysis, the court must “consider the entire record as a whole 13 and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. 14 Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks 15 omitted). 16 If the evidence reasonably could support two conclusions, the court “may not substitute its 17 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 18 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s 19 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 20 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 21 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 22 V. The Disability Standard 23 To qualify for benefits under the Social Security Act, a plaintiff must establish that he or she is unable to engage in substantial gainful 24 activity due to a medically determinable physical or mental impairment that has lasted or can be expected to last for a continuous 25 period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A).

26 4 The record includes no spinal imaging from which Dr. Kang could have evaluated the existence or severity of degenerative disc disease. Included within the evidence Plaintiff presented to the Administrative Council for review 27 (see Section VIII below) is a report of lumbar spinal x-rays dated October 25, 2017. AR 44. After reviewing the x- rays, Jeffrey Child, M.D., reported mild multilevel spondylosis; mild bilateral multilevel facet osteoarthritis; and grad 28 1 L4-L5 anterolisthesis, most probably due to spondylosis and facet osteoarthritis. AR 44. 1 An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity 2 that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any 3 other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate 4 area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 5 42 U.S.C. §1382c(a)(3)(B). 6 To achieve uniformity in the decision-making process, the Commissioner has established 7 a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 8 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding 9 that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 10 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in 11 substantial gainful activity during the period of alleged disability, (2) whether the claimant had 12 medically determinable “severe impairments,” (3) whether these impairments meet or are 13 medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, 14 Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to 15 perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs 16 existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). 17

VI. Summary of the ALJ’s Decision

18 The ALJ found that Plaintiff had not engaged in substantial gainful activity since the 19 application date of April 16, 2015. AR 26. Her severe impairments included chronic migraines 20 and diabetes mellitus. AR 26. None of the severe impairments met or medically equaled one of 21 the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 22 416.925 and 416.926). AR 28. 23 The ALJ concluded that Plaintiff had the residual functional capacity to perform the full 24 range of at all exertional levels subject to environmental conditions including no more than an 25 occasional exposure to light brighter than that found in an indoor work environment, and no 26 concentrated exposure to more than moderate noise, flashing lights or hazards such as moving 27 machinery and unprotected heights. AR 28. 28 1 Plaintiff had no past relevant work. AR 32. Considering Plaintiff’s age, education, work 2 experience and residual functional capacity, significant numbers of jobs that Plaintiff could 3 perform existed in the national economy. AR 32. Accordingly, the ALJ found that Plaintiff was 4 not disabled at any time from April 16, 2015, the application date, through January 17, 2018, the 5 date of the decision. AR 33. 6 VII. Sufficient Evidence Supported the Residual Functional Capacity Determination 7

8 Although Plaintiff does not challenge the ALJ’s determination at step two that her only 9 severe impairments were chronic migraine headaches and diabetes mellitus, Plaintiff contends 10 that the ALJ erred in failing to incorporate work-related limitations in Plaintiff’s residual 11 functional capacity consistent with degenerative disc disease and Dr. Van Kirk’s opinion. The 12 Commissioner responds that the ALJ set forth valid reasons for rejecting Dr. Van Kirk’s opinion. 13 A. Medical Opinions 14 1. Agency Physicians 15 16 On initial review in June 2015, G. Taylor, M.D., opined that Plaintiff had no exertional, 17 postural, manipulative, visual or communicative limitations but needed to avoid concentrated 18 exposure to noise and hazards. AR 85-86. On reconsideration in September 2015, G. Bugg, 19 M.D., agreed with Dr. Taylor’s opinion. AR 98. 20 2. Consultative Psychiatric Evaluation 21 On October 30, 2015, psychologist Mary Lewis, Psy.D., conducted a comprehensive 22 psychiatric evaluation at the agency’s request. AR 425-30. Dr. Lewis diagnosed only nicotine 23 24 dependence and found no significant psychological impairment. AR 429-30. 25 3. Consultative Orthopedic Evaluation 26 On July 9, 2017, Dale H. Van Kirk, M.D., performed a comprehensive orthopedic 27 evaluation of Plaintiff. AR 439-43. Dr. Van Kirk noted that Plaintiff’s chief complaints were 28 1 neck pain with radiation down both arms, and lower back pain with radiation down both legs. AR 2 439. However, the doctor noted that claimant associated her neck and back pain with her chronic 3 headaches. AR 439. Current medications included Gabapentin, Mobic, Norco, Sertraline, 4 Baclofen and Ibuprofen. AR 440. 5 In the course of the examination Plaintiff was able to sit comfortably in a chair, get up and 6 7 out of the chair, walk around the examination room, and get on and off the examination table. 8 AR 441. Plaintiff’s Romberg test and walking with one foot in front of the other indicated that 9 Plaintiff had abnormal balance. AR 441. She had no limp. AR 441. Plaintiff was able to squat 10 only about halfway before experiencing pain. AR 441. 11 Plaintiff had generalized discomfort and slightly limited range of motion of the cervical 12 spine. AR 441. She had pain in the mid-lumbar region that radiated into her hips and buttocks. 13 AR 441. Straight leg raising, motor strength, sensation and reflexes were normal. AR 442. 14 15 Dr. Van Kirk diagnosed chronic cervical and lumbosacral musculoligamentous 16 strain/sprain likely associated with degenerative disc disease. AR 442. He opined that Plaintiff 17 was able to stand and/or walk cumulatively six hours in an eight-hour workday and had no 18 limitation on sitting. AR 442. She was able to lift and carry twenty pounds occasionally and ten 19 pounds frequently. AR 442. She was limited to occasional postural activities but should never 20 crouch, crawl or balance. AR 443. She should avoid cold or damp environments and should not 21 work at unprotected heights. AR 443. Following his evaluation, Dr. Van Kirk prepared a 22 23 medical source statement consistent with the opinion expressed in the examination report dated 24 July 19, 2017. AR 433-38. 25 B. Determining Residual Functional Capacity 26 “Residual functional capacity is an assessment of an individual’s ability to do sustained 27 work-related physical and mental activities in a work setting on a regular and continuing basis.” 28 1 SSR 96-8p. The residual functional capacity assessment considers only functional limitations and 2 restrictions which result from an individual’s medically determinable impairment or combination 3 of impairments. SSR 96-8p. 4 A determination of residual functional capacity is not a medical opinion, but a legal 5 decision that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) 6 7 (residual functional capacity is not a medical opinion), 404.1546(c) (identifying the ALJ as 8 responsible for determining residual functional capacity). “[I]t is the responsibility of the ALJ, not 9 the claimant’s physician, to determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 10 1044, 1049 (9th Cir. 2001). In doing so the ALJ must determine credibility, resolve conflicts in 11 medical testimony and resolve evidentiary ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039- 12 40 (9th Cir. 1995). 13 “In determining a claimant's [residual functional capacity], an ALJ must consider all 14 15 relevant evidence in the record such as medical records, lay evidence and the effects of 16 symptoms, including pain, that are reasonably attributed to a medically determinable 17 impairment.” Robbins, 466 F.3d at 883. See also 20 C.F.R. § 404.1545(a)(3) (residual functional 18 capacity determined based on all relevant medical and other evidence). “The ALJ can meet this 19 burden by setting out a detailed and thorough summary of the facts and conflicting evidence, 20 stating his interpretation thereof, and making findings.” Magallanes v, Bowen, 881 F.2d 747, 751 21 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). 22 23 The opinions of treating physicians, examining physicians, and non-examining physicians 24 are entitled to varying weight in residual functional capacity determinations. Lester v. Chater, 81 25 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 26 professional, who has a greater opportunity to know and observe the patient as an individual. Id.; 27 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). The opinion of an examining physician is, 28 1 in turn, entitled to greater weight than the opinion of a non-examining physician. Pitzer v. 2 Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). An ALJ may reject an uncontradicted opinion of a 3 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 4 F.3d at 831. In contrast, a contradicted opinion of a treating professional may be rejected for 5 “specific and legitimate” reasons. Id. at 830. However, the opinions of a treating or examining 6 7 physician are “not necessarily conclusive as to either the physical condition or the ultimate issue 8 of disability.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 9 C. The ALJ Properly Analyzed Evidence in the Record as a Whole 10 “[A]n ALJ is responsible for determining credibility and resolving conflicts in medical 11 testimony.” Magallanes, 881 F.2d at 750. An ALJ may choose to give more weight to opinions 12 that are more consistent with the evidence in the record. 20 C.F.R. §§ 404.1527(c)(4) (“the more 13 consistent an opinion is with the record as a whole, the more weight we will give to that 14 15 opinion”). 16 As noted above, Plaintiff does not contest the ALJ’s determination at step two that 17 degenerative disc disease was not a severe impairment. Noting that the only evidence on 18 Plaintiff’s alleged degenerative disc disease (and depression, which is not at issue before this 19 Court) was Plaintiff’s reported symptoms and her physicians’ assumptions, the ALJ wrote: 20 21 A medically determinable impairment may not be established solely based on symptoms alone, or on the claimant’s allegations regarding 22 symptomology (20 CFR 416.922 and SSR 96-1p). There must be evidence from an acceptable medical source to establish the 23 existence of a medically determinable impairment. Here, there were no medical signs or laboratory findings to substantiate the existence 24 of a medically determinable impairment. Accordingly, the undersigned finds there was a lack of objective evidence to 25 substantiate the existence of aa medically determinable impairment. 26 AR 27-28. 27 At step four, the ALJ observed that Plaintiff’s activities of daily living were inconsistent 28 with Plaintiff’s representation of the intensity, persistence and limiting effect of her alleged 1 impairments. AR 30. The ALJ noted that Plaintiff managed her own personal hygiene, did 2 household chores, watched television, took walks, prepared meals, shopped, managed her 3 personal finances and used public transportation. AR 30. 4 In addition, Plaintiff’s medical records revealed only routine and conservative treatment, 5 consisting primarily of medication. AR 30. Side effects from medication were not so severe as to 6 interfere with Plaintiff’s performing work consistent with her residual functional capacity. AR 7 31. Objective findings such as imaging studies, laboratory tests, physical performance and 8 strength assessments, prescriptions and surgical evaluations suggested the Plaintiff’s impairments 9 were not as severe as alleged. AR 30. The records references a single referral to a neurologist, 10 but includes no reports of findings or treatment associated with the consultation. AR 30-31. The 11 ALJ gave significant weight to all expert opinions that Plaintiff had environmental limitations 12 associated with her headaches. AR 31. 13 Similarly, the ALJ gave little weight to Dr. Van Kirk’s opinion finding that it was based 14 largely on Plaintiff’s reported subjective symptoms and was inconsistent with the objective 15 evidence and the record as a whole. AR 31. The record supports the ALJ’s findings. Although 16 Plaintiff applied for supplemental security income in April 2015, her physicians did not seriously 17 contemplate a possible diagnosis of degenerative disc disease until June 2017, when Dr. Kang 18 diagnosed cervical disc disease; spondylosis of the cervical region without myelopathy or 19 radiculopathy; and, cervical spine stenosis. AR 464. However, no imaging studies or other 20 objective measures to support Dr. Kang’s diagnosis were included in the administrative record 21 until after issuance of the hearing decision. Even though Dr. Van Kirk wrote that Plaintiff’s 22 “chronic cervical and lumbosacral musculoligamentous strain/sprain [was] likely associated with 23 degenerative disc disease,” his opinion acknowledged a lack of documentation to support a 24 diagnosis of degenerative disc disease. AR 442. 25 The Court is not required to accept Plaintiff’s characterization of her treatment records or 26 her assessment of the medical opinions. The ALJ fully supported her determination based on 27 multiple medical opinions and the evidence of record. Even if this Court were to accept that the 28 record could support Plaintiff’s position, the record amply supports the ALJ’s interpretation as 1 well. When the evidence could arguably support two interpretations, the Court may not substitute 2 its judgment for that of the Commissioner. Jamerson, 112 F.3d at 1066. 3 VIII. The Appeal Council Properly Concluded that New Evidence Would Not Change the Outcome of Plaintiff’s Claim 4

5 Plaintiff also contends that the Administrative Council erred in determining that additional 6 evidence submitted as part of her request for review did not show a reasonable probability that it 7 would change the outcome of the hearing decision. The Commissioner counters that the 8 Administrative Council determination is not subject to judicial review. 9 The Social Security Act grants district courts jurisdiction to review only final decisions of 10 the Commissioner. 42 U.S.C. § 405(g); Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008). 11 An Administrative Council denial of a request for review is a non-final agency action not subject 12 13 to judicial review because when review is denied, the ALJ’s decision becomes the final decision 14 of the Commissioner. Taylor v. Commissioner of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 15 2011). 16 No later than five business days before the date of the hearing a claimant must submit all 17 written evidence to the administrative law judge who will conduct the hearing in the claimant’s 18 case. 20 C.F.R. § 416.1435(a). The ALJ may also accept information after the five-day deadline 19 prior to issuing the hearing decision under circumstances enumerated in 20 C.F.R. § 416.1435(b). 20 21 Late submission of written information is commonly addressed at the administrative hearing 22 where the claimant’s attorney and the ALJ agree to a mutually agreeable time in which specific 23 written documentation may be provided to the ALJ. At the hearing in this case, Plaintiff’s 24 attorney indicated that the record was complete and that he was not aware of any missing 25 evidence. AR 58-59. 26 In limited circumstances, a claimant may submit new and material evidence to the 27 28 Administrative Council. 20 C.F.R. § 416.1470(a)(5). The Council must consider that evidence in 1 determining whether to review the ALJ’s decision, provided the evidence: (1) relates to the period 2 on or before the ALJ’s decision; (2) there is reasonable probability that the additional evidence 3 would change the outcome of the decision; and, (3) the claimant has established good cause for 4 not complying with the requirements of 20 C.F.R. § 416.1435. Id. Regulatory bases for 5 establishing good cause include: (1) the agency action misled the claimant; (2) the claimant had 6 7 physical, mental, educational or linguistic limitations that prevented the claimant from informing 8 the Commissioner or submitting the evidence earlier; or, (3) an unusual, unexpected or 9 unavoidable circumstance beyond the claimant’s control prevented the claimant from informing 10 the Commissioner or providing the evidence earlier. 20 C.F.R. § 416.1470(b). Unusual, 11 unexpected or unavoidable circumstances may include such things as serious illness of the 12 claimant; death or serious illness in the claimant’s family; destruction or damage of records; 13 receipt of evidence after the hearing despite the claimant’s active and diligent efforts to secure it 14 15 earlier; or, receipt of a hearing decision on the record and the Administrative Council’s review of 16 that decision. 20 C.F.R. § 416.1470(b)(3). 17 Defendant contends that in this case Plaintiff failed to establish good cause for her failure 18 to submit the additional evidence to the ALJ before he rendered his decision. When Plaintiff’s 19 attorney submitted the additional records (Plaintiff’s post-hearing medical records from Madera 20 Community Hospital and Family Services, dated September 13, 2017 through March 21, 2017 21 (AR 40-51)) to the Administrative Council on June 27, 2018, he stated that the new evidence was 22 23 “unavailable to the ALJ prior to the decision,” but offered no explanation for the records’ 24 unavailability.5 AR 39. 25

5 On June 7, 2018, Plaintiff also sought to introduce additional records (Dr. Medeiros’ treatment notes dated 26 November 12, 2015) stating that the new evidence was “unavailable to the ALJ prior to the decision,” but offering no explanation for the records’ unavailability. AR 52. Plaintiff does not appeal the Administrative Council’s 27 determination not to consider these documents. See Doc. 15 at 7, 12 (specifying the documents in issue appear at AR 39-51). The Administrative Council declined to address the November 2015 treatment notes, which were already 28 included in the record at AR 505-07. AR 5. 1 The claimant has the burden to satisfy the good cause requirement before the 2 Administrative Council is required to review a case when a Plaintiff submits new evidence not 3 provided to the ALJ. See Baptista v. Comm’r of Soc. Sec. Admin., 2019 WL 4596771 at *9 (E.D. 4 Cal. Sept. 23, 2019) (No. 1:18-cv-00844-JLT); Schenone v. Saul, 2019 WL 2994492 at *7 (E.D. 5 Cal. July 9, 2019) (No. 2:18-cv-01655-AC); Norbert S. v. Berryhill, 2019 WL 2437457 at *10 (D. 6 7 Or. June 11, 2019) (No. 6:18-cv-00218-AC). When the claimant fails to establish good cause, a 8 district court properly declines to remand the action for further proceedings. See Baptista, 2019 9 WL 4596771 at *9; Schenone, 2019 WL 2994492 at *7-8. 10 In this case, Plaintiff failed to contend that the evidence met any of the bases for good 11 cause set out in 20 C.F.R. § 416.1435(b). Accordingly, the Court declines to remand based on the 12 Administrative Council’s determination not to review the post-hearing records. 13

IX. Conclusion and Order

14 15 Based on the foregoing, the Court finds that the ALJ’s decision that Plaintiff is not 16 disabled is supported by substantial evidence in the record as a whole and is based on proper legal 17 standards. Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of 18 the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of 19 Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff Rhonda Stetson. 20 21

IT IS SO ORDERED.

22 23 Dated: April 15, 2020 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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