Mitchell v. Commissioner of Social Security, No. 3:2013cv04594 - Document 18 (N.D. Cal. 2014)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Signed by Judge William H. Orrick on 12/12/2014. (jmdS, COURT STAFF) (Filed on 12/12/2014)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 LONNIE ALDEN MITCHELL, Case No. 13-cv-04594-WHO Plaintiff, 10 v. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT United States District Court Northern District of California 11 12 CAROLYN W. COLVIN, Defendant. Re: Dkt. Nos. 15, 17 13 14 15 Plaintiff Lonnie Alden Mitchell, Sr. seeks to overturn the decision of the Administrative 16 Law Judge (“ALJ”) denying Mitchell disability insurance benefits and supplemental security 17 income. There is no dispute that Mitchell suffers from a variety of impairments, some of which 18 the ALJ found to be severe, and evidence from some doctors supports Mitchell’s application for 19 benefits. But my review of the record is not de novo – if the ALJ’s decision is supported by 20 substantial evidence and is free of legal error, I must find for the defendant, Carolyn W. Colvin 21 (“the Commissioner”), even if the record could support a different conclusion. Substantial 22 evidence, including evidence from several doctors, the testimony of the vocational expert and the 23 ALJ’s credibility determination of Mitchell’s testimony, supports the ALJ’s decision. There is no 24 legal error. Accordingly, Mitchell’s motion for summary judgment is DENIED and the 25 Commissioner’s cross-motion is GRANTED. BACKGROUND 26 27 28 I. PROCEDURAL HISTORY Mitchell filed a Title II application for disability and disability insurance benefits on 1 September 17, 2009, and filed a Title XVI application for supplemental security income on 2 September 22, 2009. AR 9, 96-97, 203-11. His applications were denied initially and again on 3 reconsideration. AR 9, 96-103, 106-10. Mitchell requested a hearing and appeared before the 4 ALJ on April 11, 2012.1 AR 6-19, 40-95. On April 27, 2012, the ALJ denied Mitchell’s claims. 5 AR 6, 9-10, 18-19. On June 28, 2012, Mitchell submitted a request for review to the Appeals 6 Council. AR 105. The ALJ’s denial became the Commissioner’s final decision when the Appeals 7 Council declined review on August 5, 2013. AR 1-3. Mitchell filed this action for judicial review 8 pursuant to 42 U.S.C. § 405(g). See Plaintiff’s Motion for Summary Judgment [Dkt. No. 15] at 1 9 (“Pltf.’s Mot.”). 10 II. MITCHELL’S IMPAIRMENTS, CAPACITY, AND THE ALJ’S DECISION In 2000, Mitchell was shot in the head at his left temple, the victim of a violent crime. United States District Court Northern District of California 11 12 Declaration of Lonnie Mitchell [Dkt. No. 16] at 2 (“Mitchell Decl.”); AR 55, 62, 467-73.2 He was 13 also in a car accident in 2007. AR 455, 457. When he applied for benefits in 2009, Mitchell listed 14 back pain, acute renal insufficiency, and hypertension as the conditions that limited his ability to 15 work. AR 219. His back pain allegedly started around 1996 as a result of his work as a furniture 16 mover. AR 280. His other ailments include pain in his legs, arms, and left shoulder, atrial 17 fibrillation, obesity, depression, and post-traumatic stress disorder (PTSD). AR 11-12. He has a 18 history of alcohol and substance abuse, which is in reported remission. AR 12. 19 When Mitchell filed for benefits and at the time of the ALJ hearing, he lived in South San 20 Francisco and cared for his young son. AR 240, 247-48. He indicated then that his sister came to 21 his apartment multiple times per week to help him with housework and child care. AR 248, 239. 22 1 23 24 Prior to the hearing, Mitchell changed the alleged onset date of his disability from August 1, 2007 to November 20, 2009. AR 9, 47. The ALJ considered Mitchell’s claims with November 20, 2009 as the alleged onset date. AR 9, 47. 2 25 26 27 28 The timing of the gunshot wound is unclear. Notes by Dr. Barry Stein indicated that it occurred in 1991. AR 384. The ALJ mentioned Dr. Stein’s report of a “gunshot back in 1991” during the hearing. AR 80. However, earlier in the hearing Mitchell testified that the gunshot wound occurred in 2000, which contemporaneous Kaiser records support. AR 55, 62, 467-73. Nothing in the hearing testimony, aside from the ALJ’s brief reference to Dr. Stein’s report, supports the gunshot wound occurring in 1991. See AR 55, 62, 80. Based on Mitchell’s testimony and the Kaiser records I conclude there was only one gunshot wound, which occurred in 2000. AR 55, 62, 467-73. 2 1 Mitchell reported having worked as a construction worker between 2006 and 2008, as an office 2 furniture installer on-and-off between 1994 and 2003 and between 2003 and 2005, as a carpenter 3 between 2001 and 2003, and as a janitor between 2003 and 2004. AR 228. 4 A. Mitchell’s Physical Impairments 5 1. Treating Physicians and Treatment Records 6 In December 2008, Mitchell’s primary care physician, Dr. James Hutchinson, referred 7 Mitchell to the pain clinic at Stanford Hospital in response to Mitchell’s complaints of chronic 8 pain, back pain, and dizziness. AR 658. Mitchell made multiple visits to the pain center from 9 2009 through 2012. AR 343-382, 691-706. In 2009, Mitchell saw Dr. Alpana Gowda at the pain clinic and complained that his neck, back, and leg pain prevented him from keeping a job. AR 11 United States District Court Northern District of California 10 343. In March 2009, Dr. Gowda wrote that Mitchell suspected his gunshot wound had caused the 12 damage that accounted for the pain in his back and extremities. AR 343. Mitchell rated his pain 13 as typically a nine on a ten-point scale, and reported that he felt 60% of his pain in his lower back 14 while 40% was in his neck. AR 343. He tested negative on a straight leg raise. AR 344. Dr. 15 Gowda also noted reports from Mitchell of dizzy spells and upper arm weakness. AR 351, 353, 16 354. Lumbar spine x-rays showed degenerative changes associated with osteoarthritis and 17 degenerative disc disease. AR 351. Dr. Gowda recommended a medial branch block injection for 18 Mitchell’s lower vertebrae on the left side. AR 351. 19 In July 2009, a nurse clinician at the pain clinic sent a letter to Dr. Hutchinson reporting 20 that Mitchell continued to complain of neck, back, and leg pain. AR 358. The letter proposed 21 scheduling the medial branch block that had been recommended during the initial pain clinic visit, 22 and suggested that a C-spine MRI and brain scan would also be helpful for ruling out additional 23 diagnoses. AR 359. The letter also indicated Mitchell had requested a disability letter from the 24 pain clinic, but that the clinic’s policy was not to issue such letters. AR 360. At the July visit to 25 the pain clinic, Mitchell “ambulate[d] with a normal unassisted gait.” AR 359. A few months 26 later in October 2009, his gait was described as “antalgic” with “a single point cane used in the left 27 hand.” AR 365. In November 2009, Mitchell returned to the clinic and received an injection to 28 treat pain in his left arm that doctors suspected could be carpal tunnel syndrome. AR 364. A 3 1 February 2010 clinic entry noted that Mitchell’s pain had decreased very little after that injection. 2 AR 363. At the same visit, his gait was observed as nonantalgic, with no mention of a cane. AR 3 363. 4 Mitchell also made several additional visits to Stanford between October 2010 and January 5 2012. AR 482-85, 479-82, 477-79, 701-02. His symptoms remained mostly the same. He held a 6 cane in his right hand in September 2011 and January 2012. AR 478, 701. Dr. Gowda indicated 7 in September 2011 that Mitchell had not consistently followed up with the pain clinic and that an 8 MRI, which Stanford physicians had recommended as early as July 2009, had not yet been 9 performed. AR 478. 10 A January 2012 letter by Dr. Gowda updated a new primary care physician caring for United States District Court Northern District of California 11 Mitchell, Dr. Nani Kanen, on treatment at the clinic. AR 701. Dr. Gowda noted, as he had after 12 the September 2011 visit, that Mitchell had “not been consistent with followup [sic] care.” AR 13 701. After reviewing the results of a 2007 MRI, Dr. Gowda recommended a steroid injection in 14 Mitchell’s spine, but Mitchell was “hesitant” over that treatment. AR 702. Mitchell reported that 15 he was taking no medications at all at the time. AR 701. Dr. Gowda closed his letter by noting 16 that Mitchell brought a functional capacity evaluation form, but that it was the clinic’s policy not 17 to fill out that form or forms like it. AR 702. The branch block injection, which Dr. Gowda 18 recommended during Mitchell’s first Stanford visit in March 2009, had not been performed as of 19 Mitchell’s ALJ hearing in April 2012. AR 54. 20 Mitchell saw Dr. James Hutchinson as his primary care physician between July 2006 and 21 March 2011. AR 441-459, 648-658. In February 2010, Dr. Hutchinson filled out an SSA Medical 22 Report that diagnosed Mitchell with Chronic Pain Syndrome, vertigo, cardiac palpitations, 23 depression, and PTSD. AR 457. As support, Dr. Hutchinson cited lab findings showing 24 degenerative osteoarthritis in Mitchell’s spine and an electrocardiogram from January 2010 25 showing atrial fibrillation. AR 458. Other lab findings and observations were normal for 26 Mitchell’s hip and heart function. AR 456, 458. The doctor also found “some moderate 27 limit[ation] of c. spine [and] low back tenderness.” AR 456. The report does not describe any of 28 these conditions as severe or indicate that Mitchell is disabled or unable to work because of them. 4 1 See AR 455-58. In visits to Dr. Hutchinson between March 2010 and February 2011, Mitchell 2 continued to complain of numbness and pain in his legs, as well as pain in his left shoulder and 3 both hands. AR 444, 648. 4 Mitchell started seeing Dr. Kanen in March 2011 with similar complaints and diagnoses: 5 dizziness and chronic pain or numbness in his left lower back, left knee, left arm, both hips, and 6 both feet. See AR 686-87, 455-58. Dr. Kanen noted that Mitchell had “fair control” of his 7 hypertension in March 2011. AR 687. During a July 2011 visit Dr. Kanen recorded that Mitchell 8 “need[ed] a cane” due to his left lower back pain. AR 685. Dr. Kanen’s treatment plan for that 9 visit also listed “cane.” AR 685. In September and October visits the same year, Dr. Kanen made the same observation that Mitchell “ambulates [with] a cane.” AR 681, 683. In two visits to Dr. 11 United States District Court Northern District of California 10 Kanen in January 2012, Mitchell still had chronic pain and was complaining specifically of 12 swelling in his left knee. AR 674-77. 13 In March 2010, Mitchell was admitted overnight to Peninsula Medical Center for chest 14 pain. AR 411-22. Mitchell told doctors there he had seen Dr. Hutchinson a few days before with 15 the same pain. AR 413. He also told the doctors that he had drank heavily and used several illicit 16 drugs before the onset of the pain, including marijuana, PCP, and methamphetamines, though the 17 pain apparently persisted for days after his drinking and drug use. AR 415. Mitchell also reported 18 to the doctors that he had started a rigorous routine of cardiovascular exercise and weight lifting 19 around the time the pain began. AR 415, 416. The doctors found elevated liver enzyme and 20 creatine kinase (CK) levels. AR 415, 416. The doctors diagnosed Mitchell with inflammation and 21 breakdown of muscle tissue (rhabdomyolisis). AR 415. They could not fully explain his elevated 22 CK levels, but the doctors noted the cause may have been Mitchell’s drug and alcohol use, or his 23 weight lifting. AR 415. At the ALJ hearing, Mitchell explained that he was exercising in March 24 2010 according to instructions from his physical therapist. AR 70. 25 Mitchell’s kidneys failed in December 2004 as a result of an allergic reaction to penicillin. 26 AR 293-94. The disability medical report filled out by Dr. Hutchinson in February 2010 did not 27 include kidney problems among Mitchell’s reported diagnoses. AR 455, 457. Similarly, his 28 kidney function was stable after his March 2010 hospital visit, and he testified that he was 5 1 2 receiving no treatments for his kidneys at the April 2012 ALJ hearing. AR 67, 410. Mitchell was diagnosed with atrial fibrillation in January 2010 and had an EKG performed 3 that confirmed the diagnosis. AR 458. However, an EKG later on the same day showed a return 4 to a normal heartbeat and generally normal function. AR 458, 609. The testifying medical expert 5 present at Mitchell’s ALJ hearing, Dr. Landau, opined that the January 2010 episode was “not 6 medically severe.” AR 78. Mitchell’s hypertension appears rarely in the medical documentation, 7 and it was not among his disability complaints in Dr. Hutchinson’s disability report. AR 413, 455, 8 457. His cardiac exam during his March 2010 hospital visit was normal. AR 415. 9 10 2. Non-Treating Consultative Examiners Dr. Rose Lewis and Dr. Frank Chen examined Mitchell in December 2009 and January United States District Court Northern District of California 11 2012, respectively. AR 391-95, 659-67. Mitchell’s chief complaints with Dr. Lewis were back 12 pain, neck pain, and dizziness. AR 391. He also complained of numbness in his toes and 13 difficulty sleeping. AR 391. Dr. Lewis concluded in her functional assessment that Mitchell 14 could stand and walk less than two hours, and that his cane was “medically necessary” because he 15 needed it for all distances and terrains. AR 395. She also found that he could not sit in one 16 position for two hours. AR 395. He could lift ten pounds occasionally and frequently, but he 17 should never climb, balance, stoop, kneel, crouch or crawl because of a lack of balance and 18 numbness in his lower extremities. AR 395. His manipulative activities could not include 19 fingering “because of the trigger finger on the left side.” AR 395. Finally, Dr. Lewis found that 20 Mitchell had limitations in working around heights and heavy machinery because of his balance 21 problems. AR 395. 22 In 2012, Dr. Chen recorded Mitchell’s complaints of pain in his back and legs, as well as 23 associated leg numbness. AR 659. He also noted chief complaints of neck pain, hypertension, 24 and left knee pain. AR 659. Dr. Chen’s functional assessment stated: 25 26 27 28 The number of hours the claimant could stand and walk during an 8hour workday is 6 hours. He may sit for 6 hours during an 8-hour workday. No assistive device is medically necessary. The amount of weight the claimant could lift and carry is 50 pounds occasionally and 25 pounds frequently. There are no functional limitations. AR 661. In addition to that evaluation, Dr. Chen noted that Mitchell could walk for about one 6 1 block without using a cane, even though Mitchell had used a cane on and off for about a year. AR 2 660. He also found that Mitchell could frequently climb stairs and ladders, balance, stoop, kneel, 3 crouch, and crawl. AR 665. 4 3. Additional Evidence 5 Mitchell filed his motion for summary judgment pro se. He included with his motion a 6 declaration listing the conditions he currently suffers from, including his bullet wound, vertigo, 7 migraines, lack of balance, epicondylitis (tennis elbow) in the right and left arms, paralysis in the 8 lower left lumbar and right and left legs and feet, insomnia due to pain, infected kidneys, and 9 PTSD. Mitchell Decl. at 2-3. Mitchell states in his declaration that “[t]ime is causing symptoms 10 United States District Court Northern District of California 11 to progress into further deep depression.” Id. at 3. The declaration and Mitchell’s motion assert that Mitchell’s current primary care 12 physician, Dr. Kanen, has found him to be permanently disabled. Id. at 2; Pltf.’s Mot. at 3. There 13 is no evidence in the Administrative Record that Dr. Kanen found Mitchell to be disabled, but 14 Mitchell attached to his declaration an “Authorization to Release Medical Information” form 15 signed by Dr. Kanen and dated March 17, 2014. Id. at 5. On that form, Dr. Kanen marked “Yes” 16 to the question asking “Does the patient have a medically verifiable condition that would limit or 17 prevent him/her from performing certain tasks?” Id. The form indicated an onset date of 1998. Id. 18 Dr. Kanen also answered “Yes” to “Does this person have any limitations that affect his/her ability 19 to work or participate in education or training?” and “No” to the question “Is this person able to 20 work?” Id. Dr. Kanen noted that the “patient needs surgery” in space between questions on the 21 form. Id. Neither the form itself nor any other submitted documentation explains what specific 22 condition prevents Mitchell from working or what he needs surgery for. Id. 23 Another document attached to Mitchell’s declaration is a handwritten page providing post- 24 visit recommendations, apparently made by Dr. Dev Kumar Mishra on October 7, 2013. Id. at 7. 25 The name of the patient is missing from the page, but there is a patient’s date of birth that matches 26 Mitchell’s. Id. The treatment notes indicate injections into Mitchell’s elbows for medial 27 epicondylitis. Id. Dr. Mishra also refers Mitchell to another doctor for low back issues. Id. The 28 final pieces of new evidence introduced with the declaration are a list of medications with dates 7 1 from 2010 through 2012 (presumably medications taken by Mitchell, although the list has no 2 patient name on it), Dr. Kanen’s business card, and an appointment reminder card for Dr. Adam 3 Rubenstein dated November 1, 2011.3 Id. at 6. 4 B. Mitchell’s Psychological Impairments 5 The record concerning mental health diagnosis or treatment is thin, and shows no treatment 6 visits with a mental health professional until January 2012. AR 384, 735-39. 7 In April 2009, Dr. Hutchinson stated on a mental capacities form related to Mitchell’s 8 ability to participate in the Calworks welfare program that “Patient’s current mental condition 9 does not interfere [with] his ability to work or participate in Calworks activity.” AR 459. On November 24, 2009, Mitchell saw Dr. Barry Stein, a psychiatrist, for a consultative examination 11 United States District Court Northern District of California 10 related to his claim for benefits. AR 383-389. During the consultation Mitchell told Dr. Stein that 12 he had no history of inpatient psychiatric stays and had never taken psychiatric medications, 13 though he did have “some brief outpatient mental health care services” after suffering his gunshot 14 wound. AR 384. Mitchell told Dr. Stein that his chronic back pain was the main cause of his 15 depression, that he had problems sleeping and was easily fatigued, and that he had decreased 16 energy and motivation levels. AR 383. Dr. Stein determined that Mitchell had symptoms consistent with depression and early 17 18 onset post-traumatic stress disorder. AR 384, 387. Dr. Stein also observed that Mitchell, while 19 affected by a depressed mood, made good eye contact, had a linear and goal-directed content of 20 thought, and was cooperative and motivated in completing the evaluation. AR 385. Dr. Stein 21 concluded that there was a strong link between Mitchell’s depression and his history of chronic 22 back pain; that Mitchell was unlikely to complete a normal workday or workweek without 23 interruption from his psychological impairments; that Mitchell may need special or additional 24 instruction for work activities; and that Mitchell may be reserved or irritable in coworker 25 interactions or interactions with the public. AR 388. Dr. Stein also found that Mitchell could 26 probably accept instructions from supervisors and perform simple repetitive tasks, though only of 27 28 3 The treatment notes of Dr. Rubenstein are discussed in the following section. 8 1 limited duration. AR 388. The remaining mental health treatment records are from visits by Mitchell to the San 2 3 Mateo County Behavioral Health and Services facility, starting in December 2011, four months 4 before the ALJ hearing. See AR 384, 720, 736, 738. Dr. Adam Rubenstein, a psychiatrist, saw 5 Mitchell during an initial assessment in December 2011, which is the only documented interaction 6 between them. AR 735-39. The assessment includes Mitchell’s self-reports of PTSD symptoms 7 and depression. AR 738. The assessment does not make any diagnoses, but it does describe 8 Mitchell’s self-reports of visually re-experiencing his gunshot trauma and an attendant increased 9 level of arousal as “classical [sic] PTSD type symptoms.” AR 736. Dr. Rubenstein’s recommendation for treatment reads, in full, “Med eval. Potential referral to therapy – patient open 11 United States District Court Northern District of California 10 to idea of therapy.” AR 738. 12 Dr. Rubenstein filled out an Authorization to Release Medical Information dated February 13 23, 2012, answering “No” to the question “Is this person able to work?” and “Yes” to the question 14 “Does this person have any limitations that affect his/her ability to work or participate in education 15 or training?” AR 713. The form indicates an onset date of January 2012 for Mitchell’s disabling 16 condition. AR 713. The form does not include a space for specifying what condition prevents 17 Mitchell from being able to work or participate in education or training, and no further information 18 is provided on the form. AR 713. Documentation from Mitchell’s other visits to the San Mateo facility shows that Mitchell’s 19 20 participation in group therapy and meditation sessions was beneficial in helping him relax and 21 relate to the experience of others. AR 708, 711, 714, 716, 717, 719. Mitchell also met with a 22 counselor, Bernadette Candy Abellana, for two individual therapy sessions in February and March 23 2012. AR 709, 715. Individual therapy records describe ongoing PTSD and depressive symptoms 24 affecting Mitchell, although the counselor did not settle on or record a primary diagnosis. AR 25 709. 26 C. The ALJ’s Finding of Severe and Non-Severe Impairments 27 In evaluating Mitchell’s disability, the ALJ determined first that he has the following 28 severe impairments: degenerative disc disease in his cervical spine and lumbar spine, degenerative 9 1 joint disease in his left knee, obesity, depression, post-traumatic stress disorder, and polysubstance 2 abuse in reported remission. AR 11-12. The ALJ found that Mitchell’s other potential 3 impairments—his left shoulder impingement, his renal dysfunction, his facial gunshot wound, and 4 his atrial fibrillation—were non-severe. AR 12. The ALJ also found that no evidence existed for 5 Mitchell’s complaint of carpal tunnel syndrome, based on Dr. Landau’s testimony at the ALJ 6 hearing. AR 12. 7 D. Steps Three Through Five 8 9 At step three of the analysis, the ALJ found that Mitchell did not suffer an impairment or combination of impairments that met or equaled one of the listed impairments in 20 CFR Part 404, 10 United States District Court Northern District of California 11 12 Subpart P, Appendix 1. AR 12. In analyzing Mitchell’s mental impairment (“paragraph B” criteria), the ALJ determined that Mitchell did not satisfy the paragraph B criteria because he had 13 moderate restriction in activities of daily living, moderate difficulties in social functioning, and 14 moderate difficulties with concentration, persistence or pace and no episodes of decompensation. 15 AR 12. The ALJ found that he did not satisfy the Appendix’s “paragraph C” criteria, because he 16 did not have a medically documented history of a chronic affective disorder of at least 2 years’ 17 duration. AR 12. The ALJ did not rely on these findings for his later residual functional capacity 18 19 20 determination, and instead at steps four and five made the “more detailed assessment” necessary for the psychological evaluation within a residual functional capacity determination. 4 AR 13. 21 The ALJ found that Mitchell has the following residual functional capacity (“RFC”): 22 [T]o perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except he can stand and walk two hours and sit eight hours in an eight-hour day with usual breaks; can perform postural activities occasionally, except never climb ladders, ropes, or scaffolds or balance; can occasionally move his neck, but not at the extreme ranges of motion, if his head is otherwise held at a comfortable position; can hold his head in a fixed position for up to 15 to 30 minutes at a time; cannot work above shoulder level; 23 24 25 26 27 4 28 A claimant’s residual functional capacity is what the claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 416.945. 10 1 2 3 4 cannot work at unprotected heights or around hazardous moving machinery; cannot be responsible for the safety of others; is limited to simple repetitive one-to-three step tasks; can frequently interact with supervisors, and occasionally interact with coworkers and the public; is limited to low-stress work, defined as few changes in the work or its setting and few decisions required; and may be off-task up to 5% of the workday, in addition to normal breaks. 5 AR 13. At the hearing, the vocational expert testified that the claimant could, given these 6 limitations, perform at least three jobs that are sufficiently available in the local and national 7 economy: document preparer, addresser, and surveillance system monitor. AR 17-18. In light of 8 the RFC and vocational expert findings, the ALJ found that Mitchell was not disabled and not 9 entitled to Title II or Title XVI benefits. AR 10, 18-19. 10 United States District Court Northern District of California 11 12 LEGAL STANDARD I. DISABILITY DETERMINATION A claimant is “disabled” as defined by the Social Security Act if: (1) “he is unable to 13 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 expected 15 to last for a continuous period of not less than twelve months,” and (2) the impairment is “of such 16 severity that he is not only unable to do his previous work but cannot, considering his age, 17 education, and work experience, engage in any other kind of substantial gainful work which exists 18 in the national economy.” 42 U.S.C. §§ 1382c(a)(3)(A)-(B); Hill v. Astrue, 698 F.3d 1153, 1159 19 (9th Cir. 2012). To determine whether a claimant is disabled, an ALJ engages in a five-step 20 sequential analysis as required under 20 C.F.R § 404.1520(a)(4)(i)-(v). 21 In the first two steps of the evaluation, the claimant must establish that he or she (1) is not 22 performing substantial gainful activity, and (2) is under a “severe” impairment. Id. 23 § 416.920(a)(4)(i)-(ii). An impairment must have lasted or be expected to last 12 months in order 24 to be considered severe. Id. § 416.909. In the third step, the claimant must establish that his or 25 her impairment meets or medically equals a listed impairment described in the administrative 26 regulations. Id. § 416.920(a)(4)(iii). If the claimant’s impairment does not meet or equal one of 27 the listed impairments, before proceeding to the fourth step, the ALJ is to make a residual 28 functional capacity determination based on all the evidence in the record; this determination is 11 1 2 used to evaluate the claimant’s work capacity for steps four and five. Id. § 416.920(e). In step four, the claimant must establish that his or her impairment prevents the claimant 3 from performing relevant work he or she did in the past. Id. § 416.920(a)(4)(iv). The claimant 4 bears the burden to prove steps one through four, as “[a]t all times, the burden is on the claimant to 5 establish [his] entitlement to disability insurance benefits.” Tidwell v. Apfel, 161 F.3d 599, 601 6 (9th Cir. 1998) (alterations in original); see also Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 7 2007). Once the claimant has established this prima facie case, the burden shifts to the 8 Commissioner to show at the fifth step that the clamant is able to do other work, and that there are 9 a significant number of jobs in the national economy that the claimant can do. 20 C.F.R. §§ 416.920(a)(4)(v),(g); 416.960(c). 11 United States District Court Northern District of California 10 II. STANDARD OF REVIEW 12 Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether the 13 ALJ’s findings are supported by substantial evidence and free of legal error. See Smolen v. 14 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 15 1991) (ALJ’s disability determination must be supported by substantial evidence and based on the 16 proper legal standards). Substantial evidence means “‘more than a mere scintilla,’ but less than a 17 preponderance.” Saelee v. Chater, 94 F.3d 520, 521–22 (9th Cir. 1996) (quoting Richardson v. 18 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a 19 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401 20 (internal quotation marks and citation omitted). 21 This Court must review the record as a whole and consider adverse as well as supporting 22 evidence. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where evidence is 23 susceptible to more than one rational interpretation, the ALJ’s decision must be upheld. See 24 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). “However, a 25 reviewing court must consider the entire record as a whole and may not affirm simply by isolating 26 a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 882 (quoting Hammock v. 27 Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 28 Finally, if an ALJ’s error is harmless, then a reversal is unwarranted. See Molina v. Astrue, 674 12 1 F.3d 1104, 1111 (9th Cir. 2012). An error is harmless when it is “inconsequential to the ultimate 2 nondisability determination.” Molina, 674 F.3d at 1115 (citing Carmickle v. Comm’r. Soc. Sec. 3 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). DISCUSSION 4 5 I conclude that the ALJ’s decision was free of legal error and based on substantial 6 evidence. The ALJ’s credibility findings are adequately supported by the record, and the 7 additional evidence Mitchell introduced with his motion does not justify a remand to the ALJ for a 8 re-determination of Mitchell’s disability status. 9 I. THE ALJ’S FIVE-STEP ANALYSIS 10 United States District Court Northern District of California 11 The ALJ properly articulated and followed the five-step analysis for determining whether Mitchell was disabled for Title II and Title XVI purposes. 12 A. STEPS ONE THROUGH THREE 13 At step one, the ALJ found that Mitchell had not engaged in substantial gainful activity 14 since his November 20, 2009 alleged onset date. AR 11. At step two, the ALJ found that Mitchell 15 has several impairments that are severe and a few that are non-severe. AR 11-12. At step three, 16 the ALJ determined that those impairments did not alone or in combination equal the severity 17 necessary to match any of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. The 18 ALJ considered both “paragraph B” and “paragraph C” criteria in comparing Mitchell’s mental 19 impairments to the listed impairments for affective disorders (12.04), anxiety-related disorders 20 (12.06), and substance addiction disorders (12.09). AR 12-13. The ALJ found that Mitchell’s 21 mental health conditions created only moderate difficulties—not marked difficulties—in the 22 relevant functionality categories. AR 12-13. 23 The ALJ did not explicitly say in his decision that Mitchell’s physical impairments did not 24 match or equal a listing, nor did he explain how he evaluated Mitchell’s impairments against 25 specific physical limitations listed in Appendix 1. See AR 12. The ALJ did expressly find that 26 certain of Mitchell’s potential impairments were not severe—his heart and kidney conditions, the 27 impingement of his left shoulder, his claimed carpal tunnel syndrome, and the gunshot to 28 Mitchell’s face. AR 12. Additionally, the medical expert who testified at the hearing, Dr. Landau, 13 1 said that in his view the record did not support a match for 1.02 (major joint disorders), 1.04 2 (spinal disorders), 2.07 (atrial fibrillation), 4.05 (heart arrhythmia), or 6.02 (kidney function). AR 3 78-79. And most significantly, the ALJ’s step four RFC evaluation addressed the physical 4 impairments the ALJ did find to be severe—his spinal degenerative disc disease, his knee 5 degenerative joint disease, and his obesity—and implicitly found them not severe enough to match 6 or equal a listing. AR 11-12. When viewed in combination with the RFC evaluation, the ALJ’s 7 statement that Mitchell “does not have an impairment or combination of impairments that meets or 8 medically equals the severity of one of the listed impairments” is sufficient, even if the ALJ did 9 not specifically explain his determination at step three that Mitchell’s physical limitations did not 10 match a listing. See AR 12-15. United States District Court Northern District of California 11 B. RFC DETERMINATION 12 The ALJ made detailed RFC findings. AR 13. The ALJ determined that “the claimant’s 13 medically determinable impairments could reasonably be expected to cause the alleged 14 symptoms.” AR 14. The ALJ also found, however, that the objective medical evidence was not 15 fully consistent with Mitchell’s subjective claims about the intensity, persistence, and limiting 16 effects of those symptoms. ALJ 13-14. 17 After reviewing the record, I find that the ALJ based his RFC analysis on substantial 18 evidence. The ALJ discussed the clinical observations of Mitchell’s physical limitations at length, 19 providing a detailed account of the degenerative disease in Mitchell’s spine and left knee joint. 20 AR 14-15. The ALJ found that MRIs of Mitchell’s back and left knee demonstrated developing 21 foraminal stenosis, osteoarthritis, joint space narrowing, and remote mild Osgood-Schlatter 22 disease. AR 14. In the ALJ’s view, these conditions did lead to some limitations, since Mitchell 23 “could not perform the Romberg test bilaterally, stand independently on either leg, squat, kneel, 24 stoop, or lean over to put on or take off his shoes.” AR 14. Even so, the ALJ concluded that the 25 objective clinical findings related to Mitchell’s back and knee did “not correlate with significant 26 findings on physical examination” beyond the above impairments. AR 14. Crucially, Mitchell 27 exhibited a “full cervical range of motion, non-antalgic and unassisted gait, no focal sensory 28 deficit or motor weakness, intact reflexes, and negative straight leg raise.” AR 14. Furthermore, 14 1 the ALJ credited the medical expert’s testimony in finding that Mitchell’s peripheral neuropathy— 2 the numbness and pain in Mitchell’s extremities—was “consistent with alcoholic neuropathy and 3 [was] not radicular.” AR 14. 4 1. The ALJ’s Credibility Findings 5 The ALJ found that Mitchell was not fully credible in his subjective descriptions of his 6 symptoms and limitations. AR 15-16. The factors listed by the ALJ provide clear and convincing 7 reasons for finding Mitchell’s subjective claims about his impairments only partially credible. 8 9 In evaluating a claimant’s credibility, if an ALJ finds that objective medical evidence could reasonably lead to the claimant’s alleged symptoms, the ALJ must provide an explanation for setting aside the claimant’s allegations “by making specific findings as to credibility and stating 11 United States District Court Northern District of California 10 clear and convincing reasons for each.” Robbins, 466 F.3d at 883; see also Cotton v. Bowen, 799 12 F.2d 1403, 1407 (9th Cir. 1986). The type of evidence that an ALJ must consider in evaluating 13 credibility includes “the individual’s own statements about symptoms, statements and other 14 information provided by treating or examining physicians or psychologists . . . and any other 15 relevant evidence in the case record.” SSR 96-7p; see also Fair v. Bowen, 885 F.2d 597, 603 (9th 16 Cir. 1989) (listing claimant’s daily activities and unexplained failure to seek or follow through 17 with treatment as legitimate credibility factors). 18 In the ALJ’s view, multiple factors undermined Mitchell’s credibility. AR 15-16. First, 19 Mitchell’s inconsistent history of seeking medical care and complying with treatment 20 recommendations that could have ameliorated his symptoms suggested to the ALJ that Mitchell’s 21 “symptoms were not so serious as to require continued treatment.” AR 16. Mitchell did not 22 reliably schedule medical follow-up visits and did not consistently take prescribed medication. 23 AR 15, 701 (Mitchell was “not . . . consistent with followup [sic] care” and was “difficult to treat” 24 because he was not compliant in taking medications), 703 (treating doctor was “unaware as to 25 what the problem is particularly” with regard to Mitchell not trialing medications). Mitchell was 26 taking no medications as of January 2012. AR 701. Similarly, Mitchell did not pursue available 27 conservative treatment options when he refused to get an MRI or to undergo injection therapies. 28 AR 15-16, 54 (refusal to undergo a diagnostic epidural injection), 478 (no MRI by September 15 1 2011 when doctor initially requested it in 2009). 2 Additionally, the ALJ noted evidence in the record that Mitchell’s activities of daily living 3 included household and child-rearing responsibilities that he fulfilled with no help or with limited 4 help from his sister. AR 15. Specifically, the ALJ found that Mitchell was “independently 5 capable of self-care, light housework, preparing simple meals, paying bills, driving, playing games 6 with his son, socializing over the phone, frequently attending church, and washing dishes.” AR 7 15. The ALJ also noted that Mitchell successfully performed the “potentially emotionally and 8 physically demanding task” of caring for his young son largely on his own. AR 15. Evidence 9 backing these conclusions about Mitchell’s activities of daily living is present in Mitchell’s testimony, an undated claimant’s function report he filled out himself, a similar function report 11 United States District Court Northern District of California 10 filled out by Mitchell’s sister in November 2009, and the medical notes of physicians who 12 examined him. See AR 69-70, 240-43, 247-53, 659. 13 I find that the ALJ’s credibility findings are supported by clear and convincing reasons. 14 An unexplained lack of medical treatment for purportedly disabling conditions is relevant in 15 determining a claimant’s credibility, as is a refusal or failure to pursue available treatment options. 16 See Fair, 885 F.2d at 603 (explaining that “an unexplained, or inadequately explained, failure to 17 seek treatment or follow a prescribed course of treatment . . . can cast doubt on the sincerity of the 18 claimant's pain testimony”); SSR 82-59 (claimant must follow recommended course of treatment 19 if it would enable her to work). The record does not reflect any explanation for Mitchell’s lack of 20 treatment, such as a lack of health insurance or inability to pay, and Mitchell does not provide any 21 reasons or justifications. When Mitchell’s doctors noted that he had not complied with treatments 22 or made recommended follow-up visits, they made no indication that ability to pay was preventing 23 him from receiving those treatments. AR 359, 701-06. When the ALJ asked Mitchell why he had 24 not had the recommended branch block epidural, Mitchell responded that his sister had undergone 25 the same procedure and it did not provide her relief. AR 53-55. 26 The ALJ also appropriately based his credibility findings on Mitchell’s daily activities. 27 See AR 15; Fair, 885 F.2d at 603 (“[I]f a claimant is able to spend a substantial part of his day 28 engaged in pursuits involving the performance of physical functions that are transferable to a work 16 1 setting, a specific finding as to this fact may be sufficient to discredit an allegation of disabling 2 excess pain.”). The ALJ found Mitchell and his sister to be “credible to the extent that [their 3 reports on benefits questionnaires or in testimony] are consistent with the medical record.” AR 4 15. The ALJ acknowledged that Mitchell was no longer able to go camping or biking and that 5 his impairments had led to a decreased social life. AR 15; see also AR 252. But the ALJ also 7 properly cited activities in Mitchell’s daily life that supported his ability to work. These included 8 his reported capabilities to perform light housework, prepare simple meals, pay bills, drive, play 9 games with his son, speak on the phone, attend church, and wash dishes. AR 15; see also 241-43, 10 249, 251, 659. The ALJ found that Mitchell’s sister helped him with “cooking and cleaning once 11 United States District Court Northern District of California 6 or twice a week,” which was supported by Dr. Lewis’ December 2009 evaluation.5 AR 15, 392. 12 The ALJ also noted that Mitchell could go grocery shopping and do some cleaning with help. AR 13 15; see also AR 241-42. He was apparently “capable of rigorous exercise and cardio” in March 14 2010, though he says he performed that exercise for only a short period at his physical therapist’s 15 instruction. AR 15; see also AR 70, 415, 416. Also persuasive to the ALJ in his credibility 16 finding was that Mitchell cared for his son mostly on his own. AR 15; see also AR 242, 243, 248, 17 250, 251, 593, 711. Consideration of Mitchell’s ability to do these activities was appropriately 18 weighed in the ALJ’s credibility determination. See AR 15; Fair, 885 F.2d at 603. 19 2. The ALJ’s Treatment of Medical Opinions in the Record 20 The ALJ properly addressed the inconsistences in the medical record, and did not commit 21 any legal error when he granted some sources greater weight than others. See AR 15-17. The 22 5 23 24 25 26 27 28 Other parts of the record indicate more frequent help for Mitchell from his sister. Around the same time as Dr. Lewis’ examination, Mitchell’s sister answered “3-4 times a week” to the function report form question “How much time do you spend with the disabled person and what do you do together?” See AR 239, 391. On the same form, Mitchell’s sister marked “Yes” to the question “Does he/she need help or encouragement doing [household chores]?” and she specified that Mitchell needed “helping out with cleaning and reminding him to do so.” AR 241. On a similar form, Mitchell reported that “my sister is helping me on a daily basis” with care for his children. AR 248. He also indicated that he was able to do no household chores, and that “my sister helps me all the time now.” AR 249. Taken as a whole, the answers to these questions from Mitchell and his sister were inconsistent with each other, and the ALJ permissibly relied on Dr. Lewis’ “once or twice a week” note to resolve the ambiguity. See AR 15, 239, 248, 391-92; Fair, 885 F.2d at 603. 17 1 ALJ’s RFC evaluation was virtually identical to the conclusions reached by the testifying medical 2 expert, Dr. Landau. See AR 13, 16, 77-87. Without relying solely on his testimony, the ALJ gave 3 “significant weight” to Dr. Landau’s opinions because they were “consistent with the record as a 4 whole” with regard to the limitations imposed by Mitchell’s knee and back pain, and his obesity. 5 AR 16. I find that the ALJ permissibly followed Dr. Landau’s conclusions because his opinions 6 were themselves “supported by other evidence in the record and [were] consistent with it.” 7 Morgan, 169 F.3d at 600; see also Magallanes v. Bowen, 881 F.2d 747, 752-53 (9th Cir. 1989). 8 The ALJ acted properly in assigning relative weights to the reports of Mitchell’s treating 9 and examining doctors, which sometimes contained inconsistent conclusions. See AR 16-17, 7789. Mitchell saw Dr. Gowda, Dr. Hutchinson, and Dr. Kanen numerous times over a span of years 11 United States District Court Northern District of California 10 with complaints similar to the ones at issue in the ALJ hearing, but the record before the ALJ did 12 not show any of those doctors concluding that Mitchell was disabled or could not work. See AR 13 360, 455-59, 674-688, 702; Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993). 14 While the ALJ found from these treatment records that Mitchell suffered from a number of 15 conditions that are “severe” for Title II and Title XVI purposes (AR 11-12), there were other 16 indications in the treatment record that indicated Mitchell’s conditions were not disabling. Dr. 17 Hutchinson wrote on a Calworks form in April 2009 that Mitchell’s mental limitations should not 18 prevent him from working. AR 459. Mitchell also told other treating physicians in a March 2010 19 emergency room visit that the chest pain that brought him there might have arisen from a rigorous 20 exercise routine he had started recently. See AR 15, 415-17. Objective tests performed at the time 21 of that visit showed normal results. AR 415-17. These facts provided evidence for the ALJ to 22 evaluate Mitchell as having the capacity to perform light work with additional restrictions. 23 Matthews, 10 F.3d at 680. 24 The ALJ afforded little weight to the opinions of the consultative examiners, Dr. Lewis 25 and Dr. Chen, because they were not consistent with the rest of the record. AR 16. Dr. Landau 26 concluded from examining the entire record that Mitchell was more capable of lifting, walking, 27 and performing postural activities than Dr. Lewis found him to be. See AR 16, 80-86. 28 Conversely, Dr. Landau concluded that Mitchell was less capable of those activities than Dr. Chen 18 1 found him to be. See AR 16, 80-86. The gap between the examining consultants’ respective 2 assessments meant the ALJ could appropriately rely on Dr. Landau to resolve the discrepancies 3 between them. I find that the ALJ committed no error in relying on Dr. Landau more heavily than 4 the consultative examiners in a determination of Mitchell’s RFC. See Morgan, 169 F.3d at 600; 5 Magallanes, 881 F.2d at 752-53. 6 3. Mitchell’s Gait and Necessity of Cane Use for Walking 7 The ALJ’s conclusion that Mitchell had a “nonantalgic and unassisted gait” differed from 8 observations by Dr. Gowda and Dr. Kanen that Mitchell either used or needed a cane for walking. 9 See AR 365, 478, 681, 683, 685, 701. Although Dr. Kanen noted that Mitchell “need[ed]” a cane in a July 2011 visit, there was no further documentation or discussion of the cane as a medical 11 United States District Court Northern District of California 10 necessity in his treatment notes. AR 685; see also AR 681, 683. Dr. Gowda’s treatment notes 12 likewise never discussed the necessity of Mitchell’s carrying a cane, but simply noted that he used 13 one. AR 365, 478, 701. Additionally, Dr. Gowda first noted Mitchell’s use of a cane in October 14 2009, then described Mitchell’s gait as “nonantalgic” in February 2010, and again observed use of 15 a cane in September 2011 and January 2012. AR 363, 365, 478, 701. The conclusions of the two 16 non-treating medical examiners also disagreed with each other with regard to the need for a cane. 17 Dr. Lewis found that the cane was “medically necessary” for Mitchell in December 2009, while 18 Dr. Chen explicitly found that Mitchell did not need a cane for walking in 2012. AR 395, 660. 19 Reviewing the record as a whole, Dr. Landau found “no objective evidence of the 20 requirement for a cane.” See AR 81. It was permissible for the ALJ to rely on Dr. Landau 21 because the evidence of Mitchell’s need for a cane was unclear, and substantial evidence existed 22 for a contrary conclusion. See AR 365, 478, 681, 683, 685, 701; Morgan, 169 F.3d at 600 (“[T]he 23 opinion of the treating physician is not necessarily conclusive as to either the physical condition or 24 the ultimate issue of disability.”); Magallanes, 881 F.2d at 752-53. 25 4. Psychological Impairments in Mitchell’s RFC 26 As for evidence of psychological impairments, the ALJ relied on two sources to evaluate 27 Mitchell’s limitations—the consultative examination by Dr. Stein in November 2009 and records 28 of Mitchell’s visits to a mental health facility for individual therapy and group meditation between 19 1 October 2011 and April 2012. AR 15, 383-90,707-43. Both sources indicated that Mitchell had a 2 number of symptoms related to his PTSD and depression, including anxious mood, nightmares, 3 and feelings of hopelessness. AR 15, 387-88, 719. Dr. Stein’s report concluded that Mitchell 4 “probably would have some difficulty performing work activities on a consistent basis without 5 special or additional instruction. . . . As his depression gets worse his pain may feel more 6 intense.” AR 388. Dr. Rubenstein—who only saw Mitchell once—also wrote that Mitchell was 7 unable to work on a form dated February 2012, but did not otherwise explain the reason for that 8 inability. AR 713. 9 The ALJ noted, on the other hand, that Mitchell’s depressive and PTSD symptoms were largely self-reported, while direct observation by Dr. Stein and others at least showed that Mitchell 11 United States District Court Northern District of California 10 was cooperative, and that he had “good eye contact, insight and judgment.” AR 15, 385-86, 708, 12 711, 714, 715. Moreover, given the claimant’s lack of regular mental health care and generally 13 benign observations at therapy appointments, the ALJ permissibly granted Dr. Stein’s one-time 14 opinion “little weight.” See AR 17, 384. The ALJ likewise afforded Dr. Rubenstein’s opinion 15 “little weight” because the record did not include supporting treating records from him, the record 16 did not explain the basis for his conclusion that Mitchell could not work, and “the few mental 17 health treatment notes in the record are inconsistent with more than moderate functional 18 limitations.” AR 17, 385-86, 708, 711, 714, 715. The ALJ also pointed to evidence, including 19 Mitchell’s own hearing testimony, that he had successfully controlled his anxiety and depression 20 with therapy, antidepressants, and group meditation practice. AR 15, 74-75, 385-86, 708, 711, 21 714, 715. The ALJ found that Mitchell’s history of polysubstance abuse, which Mitchell testified 22 was in remission since August 2010, was “not a current material factor contributing to” the RFC 23 evaluation. AR 15, 48-50. Substantial evidence in the record supported all of these conclusions. 24 C. STEP FIVE 25 At step five, the ALJ determined that Mitchell had no past relevant work, but that jobs 26 existed for him in the national economy in significant numbers after taking into account his age, 27 education, work experience, and residual functional capacity. AR 17-18. Since the ALJ found 28 that Mitchell had an RFC with less than the full exertional capacity associated with performing 20 1 “light work,” the ALJ asked the testifying vocational expert whether jobs were available that fit 2 Mitchell’s specific RFC profile. AR 18. The expert testified that Mitchell’s RFC profile was 3 consistent with the responsibilities of three representative occupations—document preparer, 4 addresser, and surveillance system monitor—and these occupations existed in significant numbers 5 in the economy. AR 18, 89-92. 6 Based on a review of the ALJ’s decision, the vocational expert’s hearing testimony, and 7 the relevant portions of the Dictionary of Occupational Titles,6 the ALJ did not err in relying on 8 the vocational expert or on the Dictionary of Occupational Titles to find that there were sufficient 9 jobs in the national economy that Mitchell could perform with his limitations. See AR 18, 89-92. 10 II. MITCHELL’S ADDITIONAL EVIDENCE Mitchell presented additional evidence with his motion for summary judgment. Mitchell United States District Court Northern District of California 11 12 Decl. at 2-7. Under Ninth Circuit precedent, if this new evidence is material to a disability 13 determination, and if the claimant has shown good cause for his failure to present the evidence to 14 the ALJ earlier, I must remand to the ALJ for further consideration of Mitchell’s disability. Mayes 15 v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001). I find that the new evidence is not material because it does not bear directly and 16 17 substantially on the ALJ’s findings. That is, there is no “reasonable possibility” the new 18 information would have affected the outcome of the administrative hearing. See Ward v. 19 Schweiker, 686 F.2d 762, 764 (9th Cir. 1982); Booz v. Sec’y of Health & Human Servs., 734 F.2d 20 1378, 1381 (9th Cir. 1984). One of the conditions Mitchell listed in the declaration, vertigo with 21 severe migraines, cannot be relevant for review here because the condition was not among the 22 conditions presented to the ALJ as disabling and the medical records in the administrative record 23 discussing dizziness or vertigo would not support a conclusion that that condition was severe. See 24 AR 11-12, 219, 351, 353, 354, 443, 457, 654, 678, 686; Mitchell Decl. at 2; Mayes, 276 F.3d at 25 6 26 27 28 The ALJ included the following technical information from the vocational expert’s testimony and the Dictionary of Occupational Titles in his decision: “document preparer (DOT 249.587018, sedentary, SVP 2; 23,000 jobs nationally and 1,500 to 2000 jobs statewide), addresser (DOT 209.587-010, sedentary, SVP 2; 17,000 jobs nationally and 1,000 to 2,000 jobs statewide), and surveillance system monitor (DOT 379.367-010, sedentary SVP 2; 11,000 jobs nationally and 1,100 jobs statewide).” AR 18. 21 1 461 (holding that new evidence of back problems was not material because, “while [the 2 clamaint’s] past medical history indicated that she had had some back problems, none of the 3 disabilities [she] claimed before the ALJ was a back problem.”). The rest of Mitchell’s 4 declaration is a cursory recounting of conditions that are substantially similar to those analyzed in 5 the ALJ’s decision, though some are cast in more serious or slightly different terms. See Mitchell 6 Decl. at 2-3; AR 11-12, 219. Small differences in these conditions, self-reported years after the 7 ALJ’s decision, would not have been determinative in the ALJ’s findings. See Mitchell Decl. at 2- 8 3; Booz, 734 F.2d at 1381. The post-visit instructions, apparently made by Dr. Mishra, recommend an injection 10 treatment for elbow epicondylitis. Mitchell Decl. at 7. This condition may be a new diagnosis for 11 United States District Court Northern District of California 9 the pain that Mitchell and some of his doctors previously suspected could be carpal tunnel 12 syndrome. See id.; AR 12, 364. There is, however, no indication in the Dr. Mishra instructions of 13 the severity of the condition or whether the condition has ever been disabling, which would be 14 necessary for finding that the new evidence was material. See Mitchell Decl. at 2, 5; Jackson v. 15 Apfel, 162 F.3d 533, 539 (8th Cir. 1998) (“In order to be material, the evidence must relate to [the 16 claimant]’s condition on or before the date of the ALJ's decision.”). Similarly, the medications 17 list, treating physician business card, and appointment reminder card would not be material in 18 affecting the outcome of the ALJ’s decision. Mitchell Decl. at 6. 19 Mitchell’s submission of a March 2014 form on which Dr. Kanen indicated that Mitchell 20 was not able to work suffers from similar problems of non-specificity. See Mitchell Decl. at 3. 21 The form says that Mitchell needs surgery and that the onset date of Mitchell’s condition was 22 1998. Id. But the one-page form does not indicate which condition (or set of conditions) has 23 caused the purported inability to work, nor does it detail the timing of when the condition became 24 severe enough to cause that inability. Id. No other documentation submitted by Mitchell provides 25 that information. The 1998 onset date strongly suggests that any purportedly disabling conditions 26 are the same ones reviewed and documented in the administrative record. An unsupported 27 determination in 2014 that unspecified conditions were disabling at some unknown time does not 28 create a reasonable possibility of overcoming the other evidence in the record and changing the 22 1 ALJ’s decision. See Booz, 734 F.2d at 1381; cf. Mayes, 276 F.3d at 462 (claimant must provide 2 evidence that disabling condition existed at time of ALJ hearing). 3 Finally, even if any of the newly submitted evidence were material, Mitchell has provided 4 no good cause for why this evidence could not have been timely presented to the ALJ before the 5 ALJ’s decision. See Mitchell Decl. at 2-3. The medical record before the ALJ was thorough and 6 reasonably covered the limitations Mitchell claimed prevented him from working at the time. See 7 id.; AR 11-12, 14-15, 219; Mayes, 276 F.3d at 463 (“A claimant does not meet the good cause 8 requirement by merely obtaining a more favorable report once his or her claim has been denied. 9 To demonstrate good cause, the claimant must demonstrate that the new evidence was unavailable 10 earlier.”). CONCLUSION United States District Court Northern District of California 11 12 For the reasons identified above, the ALJ’s decision is free of legal error and supported by 13 substantial evidence. Mitchell’s motion for summary judgment is DENIED, and the 14 Commissioner’s motion for summary judgment is GRANTED. 15 16 17 18 IT IS SO ORDERED. Dated: December 12, 2014 ______________________________________ WILLIAM H. ORRICK United States District Judge 19 20 21 22 23 24 25 26 27 28 23
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