I. INTRODUCTION

17 18 On April 13, 2023, Plaintiff Michael James Sakane (“Plaintiff”) filed a complaint under 19 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social 20 Security (the “Commissioner” or “Defendant”) denying his application for disability insurance 21 benefits (“DIB”) under Title II of the Social Security Act (the “Act”). (Doc. 1.) The matter is 22 currently before the Court on the parties’ briefs, which were submitted, without oral argument, to 23 the Honorable Sheila K. Oberto, United States Magistrate Judge.2 24 25 II. BACKGROUND 26 1 On December 20, 2023, Martin O’Malley was named Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/history/commissioners.html. He is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 28 of the Commissioner shall, in [their] official capacity, be the proper defendant.”). 1 On February 28, 2020, Plaintiff protectively filed a claim for DIB payments, alleging he 2 became disabled on December 15, 2019, due to congestive heart failure, type 2 diabetes, low 3 thyroid condition, high blood pressure, sleep apnea, hypertension, hyperglycemia, and shortness 4 of breath. (Administrative Record (“AR”) 18, 140, 143, 152, 153, 154, 306, 310.) Plaintiff was 5 born on January 23, 1976, and was 43 years old on the alleged disability onset date. (AR 28, 140, 6 152.) Plaintiff has a high school education and previously worked as gas station attendant. (AR 7 28, 129, 311, 773.) 8 The Commissioner denied Plaintiff’s application for benefits initially on September 24, 9 2020, and again on reconsideration on June 3, 2021. (AR 169–73, 176–81.) Consequently, 10 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 182–83.) On 11 October 20, 2021, Plaintiff appeared without counsel or a representative and testified before an 12 ALJ as to his work history and alleged disabling conditions. (AR 56–82.) A vocational expert 13 (“VE”) also testified at the hearing. (AR 82–93.) 14 B. The ALJ’s Decision and Appeals Council Review 15 16 On March 2, 2022, the ALJ issued a decision finding Plaintiff not disabled, as defined by 17 the Act. (AR 18–30.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 18 § 404.1520. (AR 20–30.) The ALJ determined that Plaintiff met the insured status requirements 19 of the Act through December 31, 2026, and that, while he engaged in substantial gainful activity 20 from December 15, 2019, to December 31, 2019, and from January 1, 2021, through December 21 31, 2021, there had been a continuous 12-month period during which Plaintiff did not engage in 22 substantial gainful activity (step one). (AR 20–21.) The ALJ found that Plaintiff had the 23 following severe impairments: cardiomyopathy, congestive heart failure with preserved ejection 24 fraction, hypertension, diabetes mellitus, obstructive sleep apnea, atopic dermatitis, asthma, and 25 obesity (step two). (AR 21–23.) However, Plaintiff did not have an impairment or combination 26 of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 27 Subpart P, Appendix 1 (“the Listings”) (step three). (AR 23–24.) 28 1 The ALJ then assessed Plaintiff’s residual functional capacity (“RFC”)3 and applied the 2 RFC assessment at step four. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to 3 step four, we assess your residual functional capacity . . . . We use this residual functional 4 capacity assessment at both step four and step five when we evaluate your claim at these steps.”). 5 The ALJ determined that Plaintiff retained the RFC: 6 to perform light work as defined in 20 CFR [§] 404.1567(b), except he is able to climb ramps and stairs occasionally; he cannot climb ropes, ladders, or scaffolds. 7 [Plaintiff] must avoid concentrated exposure to extremes of heat and cold. He 8 must avoid concentrated exposure to pulmonary irritants, such as dusts, gases, fumes, and pollens. He must avoid concentrated exposure to workplace hazards 9 such as unprotected heights or dangerous, moving mechanical parts. [Plaintiff] cannot be required to wear latex or other gloves on the job. 10 11 (AR 24.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 12 expected to cause the alleged symptoms[,]” they rejected Plaintiff’s subjective testimony as “not 13 entirely consistent with the medical evidence and other evidence in the record.” (AR 25.) 14 Based on this RFC assessment, the ALJ determined that Plaintiff was not disabled 15 because he could perform his past relevant work as an auto self-service attendant (step 4). (AR 16 28.) The ALJ also made the alternative finding that Plaintiff could perform a significant number 17 of other jobs in the local and national economies (step five). (AR 28–29.) In making this 18 determination, the ALJ posed a series of hypothetical questions to the VE. (AR 85–89.) In 19 response, the VE testified that a person with the specified RFC could perform the jobs of cashier 20 II; ticket seller; and small product assembler. (AR 87–88.) When posed by the ALJ with a 21 hypothetical that included additional limitations to Plaintiff’s RFC of absences of two or more 22 times per month or being off task more than 10 percent of the workday, the VE testified that there 23 was no work such a person could perform. (AR 89.) 24 Plaintiff sought review of the ALJ’s decision before the Appeals Council. Along with 25 3 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a 26 work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. Social Security Ruling 96-8p. The RFC assessment considers only functional limitations and restrictions that result 27 from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay 28 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable 1 his request for review, Plaintiff submitted additional, post-hearing evidence to the Appeals 2 Council consisting of X-ray and MRI imaging results of Plaintiff’s spine, a medication list, and 3 a mental source opinion dated March 26, 2022, by Plaintiff’s treating provider Michael A. 4 Layton, PA-C. (AR 36–47.) 5 On March 2, 2023, the Appeals Council denied the request for review (AR 1–7), 6 rendering the ALJ’s decision the final decision of the Commissioner. 20 C.F.R. § 404.981. The 7 “Notice of Appeals Council Action” denying review sets forth the Appeals Council’s finding that 8 the post-hearing evidence “does not relate to the period at issue” and thus “does not affect the 9 decision about whether [Plaintiff was] disabled beginning on or before March 2, 2022.” (AR 2.) 10 III. LEGAL STANDARD 11 A. Applicable Law 12 An individual is considered “disabled” for purposes of disability benefits if they are unable 13 “to engage in any substantial gainful activity by reason of any medically determinable physical or 14 mental impairment which can be expected to result in death or which has lasted or can be 15 expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 16 However, “[a]n individual shall be determined to be under a disability only if [their] physical or 17 mental impairment or impairments are of such severity that [they are] not only unable to do [their] 18 previous work but cannot, considering [their] age, education, and work experience, engage in any 19 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 20 “The Social Security Regulations set out a five-step sequential process for determining 21 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 22 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has 23 provided the following description of the sequential evaluation analysis: 24 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 25 proceeds to step two and evaluates whether the claimant has a medically severe 26 impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or 27 combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. 28 1 not, the ALJ proceeds to step five and examines whether the claimant has the 2 [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 3 4 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 5 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 6 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 7 “The claimant carries the initial burden of proving a disability in steps one through four of 8 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 9 1989)). “However, if a claimant establishes an inability to continue [their] past work, the burden 10 shifts to the Commissioner in step five to show that the claimant can perform other substantial 11 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 12 B. Scope of Review 13 “This court may set aside the Commissioner’s denial of disability insurance benefits 14 [only] when the ALJ’s findings are based on legal error or are not supported by substantial 15 evidence in the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial 16 evidence is defined as being more than a mere scintilla, but less than a preponderance.” Edlund 17 v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put 18 another way, substantial evidence is such relevant evidence as a reasonable mind might accept as 19 adequate to support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 20 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 21 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be 22 disturbed only if that decision is not supported by substantial evidence or it is based upon legal 23 error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will 24 uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational 25 interpretation.” Id.; see, e.g., Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the 26 evidence is susceptible to more than one rational interpretation, the court may not substitute its 27 judgment for that of the Commissioner.” (citations omitted)). 28 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for 1 that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court 2 must determine whether the Commissioner applied the proper legal standards and whether 3 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 4 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot 5 be affirmed simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d 6 at 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must 7 ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts 8 from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th 9 Cir. 1993)). 10 Finally, courts “may not reverse an ALJ’s decision on account of an error that is 11 harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. 12 Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear 13 from the record that ‘the ALJ’s error was inconsequential to the ultimate nondisability 14 determination.’” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Robbins, 15 466 F.3d at 885). “[T]he burden of showing that an error is harmful normally falls upon the party 16 attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations 17 omitted). 18 IV. DISCUSSION 19 A. The ALJ’s Decision is Not Supported by Substantial Evidence 20 Plaintiff challenges the ALJ’s decision on the basis, inter alia, that it fails to consider all 21 of Plaintiff’s mental and physical limitations in formulating the RFC, particularly in view of the 22 May 13, 2022, and August 27, 2022, imaging results of Plaintiff’s spine and the March 26, 2022, 23 opinion of treater PA-C Layton (AR 36–47), which were submitted for the first time to the 24 Appeals Council. (See Doc. 17 at 8–17.) 25 Where, as here, the Appeals Council considers additional evidence in denying review of 26 the ALJ’s decision, that evidence is nevertheless deemed to be part of the administrative record 27 that a court must evaluate when reviewing the Commissioner’s final decision for substantial 28 evidence. Brewes v. Comm’r of Soc. Sec. Admin, 682 F.3d 1157, 1163 (9th Cir. 2012). See also 1 Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011) (courts may consider 2 evidence presented for the first time to the Appeals Council “to determine whether, in light of the 3 record as a whole, the ALJ’s decision was supported by substantial evidence and was free of legal 4 error.”). That the imaging results and PA-C Layton’s opinion were rendered after the ALJ’s 5 decision is not dispositive; and this Court must consider new records that relate back to the time 6 period at issue. See, e.g., Taylor, 569 F.3d at 1232-33 (holding that a psychiatric evaluation 7 occurring after an ALJ’s decision, but concerning a claimant’s mental health since his alleged 8 onset date, “related to the period before” the ALJ’s decision and “should have been considered”); 9 Edgecomb v. Berryhill, 741 F. App’x 390, 393 (9th Cir. 2018) (“The Appeals Council stated that 10 the letter ‘is about a later time,’ but did not explain its conclusion beyond noting that the letter 11 was dated February 2, 2015, and that the relevant period ended September 20, 2013. We must 12 conduct our own review of the letter to determine if it relates to the relevant time period.”); Ward 13 v. Colvin, No. 2:13-CV-1390-EFB, 2014 WL 4925274, at *3 (E.D. Cal. Sept. 30, 2014) (“[T]he 14 Ninth Circuit has held that medical evaluations made after the relevant time period—in this case 15 the date of the ALJ’s decision—are relevant where they concern the claimant’s condition during 16 the time period at issue.”). 17 Regarding the May 13, 2022, and August 27, 2022, imaging results, while they document 18 the state of Plaintiff’s condition roughly two-to-five months after the ALJ’s decision, their 19 relevance is not limited to that timeframe. Since the results document a “degenerative” and 20 “progressive” condition in Plaintiff’s lumbar and thoracic spine, it stands to reason that these 21 imaging results relate to a time before the date of the ALJ’s decision. (See AR 37–39.) To 22 conclude that the records document changes Plaintiff’s condition only during the two-to-five 23 months following the ALJ’s decision would require that this Court ignore the degenerative and 24 progressive nature of his condition. Similarly, PA-C Layton’s opinion was issued on March 26, 25 2022—24 days after the ALJ’s decision—yet it states that Plaintiff’s condition has been 26 “progressing” over his lifetime and the disabling impairments opined therein have been 27 “lifelong.” (AR 41, 42.) Since these new records relate to the relevant time period, the records 28 should now be considered. See, e.g., Aranda v. Comm’r of Soc. Sec., No. 2:19-CV-02567-JDP- 1 SS, 2021 WL 107157, at *3 (E.D. Cal. Jan. 12, 2021) (considering MRI and X-rays that, while 2 conducted after the ALJ’s decision, documented the plaintiff’s “degenerative condition.”); 3 Hernandez v. Berryhill, No. 1:17-CV-00483-SKO, 2018 WL 2021021, at *6 (E.D. Cal. May 1, 4 2018) (“As already discussed, Dr. Graham’s report was new, material, and relevant to the time 5 period at issue before ALJ; thus, the Appeals Council was required to consider it.”). 6 Since the imaging results and PA-C Layton’s opinion relate to the relevant time period, 7 this Court must determine whether the ALJ’s decision retains support in substantial evidence, 8 with this post-decision evidence included into the record as a whole. See Taylor, 659 F.3d at 9 1232. Based on the evidence available at the time of the ALJ’s decision, the ALJ determined that 10 while Plaintiff “testified to [a] prescription for and use of a back brace, the evidence does not 11 show such prescription or physical findings accounting for the back brace.” (AR 27.) However, 12 the August 27, 2022, MRI lends support for the use of a back brace, showing a “central disc 13 protrusion and extrusion superimposed on disc bulge” causing “severe compression of the thecal 14 sac at L3-4,” “moderate compression of the thecal sac at L4-5,” “left lateral recess of the rotator 15 cuff at L5-S1,” “right lateral recess narrowed,” and “moderate L5-S1 degenerative foraminal 16 narrowing with exiting nerve roots in contact with the disc bulge.” (AR 38.) These imaging 17 results also undermine the “sit, stand, and walk limitations” opined by the State agency 18 consultants, which the ALJ adopted as “consistent” with “observations of normal skeletal range 19 of motion.” (AR 27.) 20 PA-C Layton’s March 26, 2022, opinion particularly relates to the ALJ’s conclusions at 21 step two. The ALJ found that the “overall record does not show that [Plaintiff] was observed by 22 treatment providers having difficulties understanding, remembering, or applying information” 23 and that “[t]reatment notes do not show that [Plaintiff] sought treatment reporting psychiatric 24 symptoms affecting his abilities to maintain concentration, persistence, or pace, nor did treatment 25 providers observe that [Plaintiff] had psychiatric symptoms limiting his abilities to maintain 26 concentration, persistence, or pace.” (AR 22–23.) However, PA-C Layton’s opinion fills that 27 evidentiary gap. He found that, due to Plaintiff’s learning disability and attention deficit 28 hyperactivity disorder (“ADHD”), he would be precluded from understanding and remembering 1 detailed instructions for 15% or more of an eight-hour workday; that he would be absent from 2 work as a result of his impairments five days or more a month; and that he would be unable to 3 complete an eight-hour workdays as a result of his impairments for five days or more a month. 4 (AR 41–42.) Notably, according to the VE, additional limitations to Plaintiff’s RFC of absences 5 of two or more times per month or being off task more than 10 percent of the workday would 6 result in no work that he could perform. (AR 89.) 7 Overall, considering the record as a whole, including the May 13, 2022, and August 27, 8 2022, imaging results and the March 26, 2022, opinion of PA-C Layton, the ALJ’s conclusions 9 about the extent of Plaintiff’s limitations and the lack of evidence in support thereof are no longer 10 supported by substantial evidence. See Krummel v. Kijakazi, No. 1:22-CV-00048-SKO, 2023 11 WL 4209757, at *4 (E.D. Cal. June 27, 2023) (“With the addition of Dr. Pannu’s opinion, the 12 record now contains a medical opinion from a treating physician opining that Plaintiff’s RFC was 13 far more limited during the relevant period than that found by the ALJ . . . . Since this new 14 evidence directly undermines the basis of the ALJ’s decision, the Court concludes that the 15 Commissioner’s decision was not supported by substantial evidence.”) (internal quotations 16 omitted). Remand is therefore warranted. 17 B. Remand for Further Proceedings is Appropriate 18 It is for the ALJ to determine whether a plaintiff has severe impairments and, ultimately, 19 whether they are disabled under the Act. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 20 2015) (“[T]he decision on disability rests with the ALJ and the Commissioner of the Social 21 Security Administration in the first instance, not with a district court”). “Remand for further 22 administrative proceedings is appropriate if enhancement of the record would be useful.” 23 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). The ALJ, not the Court, is responsible 24 for assessing the medical evidence and resolving any conflicts or ambiguities in the record. See 25 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014); Carmickle v. 26 Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 27 Here, the ALJ did not have the opportunity to consider, in the first instance, the May 13, 28 2022, and August 27, 2022, imaging results of Plaintiff’s spine and the March 26, 2022, opinion 1 of treater PA-C Layton. Having found this evidence properly part of the record, the ALJ must 2 evaluate it to determine its impact on the severity of Plaintiff’s impairments, his RFC, and the 3 ultimate question of Plaintiff’s disability. Remand for further proceedings—as Plaintiff concedes 4 (see Doc. 17 at 16)—is therefore the appropriate remedy. See, e.g., Vasquez v. Astrue, 572 F.3d 5 586, 597 (9th Cir. 2009) (remanding to allow ALJ to assess results of psychological testing, 6 considered by the Appeals Council, and how claimant’s limitations affect their RFC); 7 McLaughlin v. Saul, No. 1:18-CV-00967-SKO, 2019 WL 3202806, at *6 (E.D. Cal. July 16, 8 2019); Billie-Jo M. v. Saul, No. 6:19-CV-00092-SB, 2020 WL 2521754, at *10 (D. Or. May 18, 9 2020) (“Plaintiff submitted new, post-decision medical evidence that the ALJ has not had an 10 opportunity to evaluate. Under these circumstances, a remand to the agency for further 11 proceedings to fully develop the record is the appropriate remedy.”) (internal quotation marks 12 omitted). 13 C. The Court Declines to Determine Plaintiff’s Remaining Assertion of Error 14 As the Court finds that remand is appropriate for the ALJ to consider Plaintiff’s post- 15 decision evidence, the Court does not reach Plaintiff’s additional assertions of error. See Hiler v. 16 Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the 17 reasons stated, we decline to reach [plaintiff’s] alternative ground for remand.”); see also Franz 18 v. Comm’r of Soc. Sec., No. 2:21-CV-583-KJN, 2022 WL 4537991, at *7 (E.D. Cal. Sept. 28, 19 2022) (“Given that the proper remedy is to allow the ALJ to consider Dr. Vega’s opinion on 20 remand, and given the intertwined nature of plaintiff’s other arguments, the undersigned declines 21 to reach them.”); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 22 2008) (“[The] Court need not address the other claims plaintiff raises, none of which would 23 provide plaintiff with any further relief than granted, and all of which can be addressed on 24 remand.”). 25 V. CONCLUSION AND ORDER 26 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 27 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for 28 further proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter 1 judgment in favor of Plaintiff Michael James Sakane and against Defendant Martin O’Malley, 2 Commissioner of Social Security. 3

IT IS SO ORDERED.

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5 Dated: January 31, 2024 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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