Ernest Alfred Gaona v. Nancy A. Berryhill, No. 5:2017cv01130 - Document 30 (C.D. Cal. 2019)

Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See document for details.) (sbou)

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Ernest Alfred Gaona v. Nancy A. Berryhill Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ERNEST ALFRED G.,1 Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. EDCV 17-1130-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for Social Security disability insurance 21 benefits (“DIB”). 22 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 The matter is before the Court on the parties’ Joint Stipulation, 24 filed March 23, 2018, which the Court has taken under submission The parties consented to the jurisdiction of 25 26 1 27 28 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 without oral argument. For the reasons stated below, the 2 Commissioner’s decision is affirmed. 3 II. BACKGROUND 4 On August 30, 2013, Plaintiff applied for DIB, alleging that 5 he had been disabled since April 3, 2012,2 because of depression, 6 bipolar disorder, left-eye problems, anxiety, and high blood 7 pressure. 8 initially (AR 68-81) and on reconsideration (AR 83-95), he 9 requested a hearing before an Administrative Law Judge (AR 109). (AR 152-55, 175-76.) After his application was denied 10 A hearing was held on December 2, 2015, at which Plaintiff, who 11 was represented by counsel, testified, as did a vocational 12 expert. 13 2016, the ALJ found Plaintiff not disabled. 14 Plaintiff requested review (AR 11-14) and submitted additional 15 medical evidence (AR 2, 255-63). 16 Council denied review, finding that the additional evidence did 17 not provide a basis for changing the ALJ’s decision. 18 Specifically, as to the March 26, 2016 medical-source statement 19 from Plaintiff’s treating psychiatrist, Dr. Salvador Arella, that 20 is the focus of this appeal, the council found that the “new 21 information is about a later time.”3 (AR 37-67.) In a written decision issued January 20, (AR 18-32.) On April 14, 2017, the Appeals (AR 2.) (AR 1-7.) This action 22 2 23 24 25 26 27 28 The ALJ and the parties refer to the disability-onset date as July 31, 2009. (See, e.g., AR 18; J. Stip. at 2.) That date appears to come from Plaintiff’s Disability Report. (AR 172.) For the sake of argument, the Court considers whether Plaintiff was disabled at any time after the earlier, 2009 date. 3 As of January 17, 2017, a claimant must show good cause for having failed to submit evidence to the ALJ before the Appeals Council will consider that evidence. See § 404.970(b) (2017). Although Plaintiff provided none, he apparently was not required to because he submitted the new evidence before January 2 1 followed. 2 III. STANDARD OF REVIEW 3 Under 42 U.S.C. § 405(g), a district court may review the 4 Commissioner’s decision to deny benefits. The ALJ’s findings and 5 decision should be upheld if they are free of legal error and 6 supported by substantial evidence based on the record as a whole. 7 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 8 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 9 means such evidence as a reasonable person might accept as Substantial evidence 10 adequate to support a conclusion. 11 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 12 is more than a scintilla but less than a preponderance. 13 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 14 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 15 substantial evidence supports a finding, the reviewing court 16 “must review the administrative record as a whole, weighing both 17 the evidence that supports and the evidence that detracts from 18 the Commissioner’s conclusion.” 19 720 (9th Cir. 1998). 20 either affirming or reversing,” the reviewing court “may not 21 substitute its judgment” for the Commissioner’s. 22 IV. 23 Richardson, 402 U.S. at 401; It To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for purposes of receiving Social 24 Security benefits if they are unable to engage in any substantial 25 gainful activity owing to a physical or mental impairment that is 26 expected to result in death or has lasted, or is expected to 27 28 2017 (AR 255-63), though the council did not deny review until three months later (AR 1-7). 3 1 last, for a continuous period of at least 12 months. 42 U.S.C. 2 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 3 1992). 4 A. 5 The ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 6 assess whether a claimant is disabled. 20 C.F.R. 7 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 8 Cir. 1995) (as amended Apr. 9, 1996). 9 Commissioner must determine whether the claimant is currently In the first step, the 10 engaged in substantial gainful activity; if so, the claimant is 11 not disabled and the claim must be denied. 12 § 404.1520(a)(4)(i). If the claimant is not engaged in substantial gainful 13 activity, the second step requires the Commissioner to determine 14 whether the claimant has a “severe” impairment or combination of 15 impairments significantly limiting his ability to do basic work 16 activities; if not, the claimant is not disabled and his claim 17 must be denied. 18 § 404.1520(a)(4)(ii). If the claimant has a “severe” impairment or combination of 19 impairments, the third step requires the Commissioner to 20 determine whether the impairment or combination of impairments 21 meets or equals an impairment in the Listing of Impairments set 22 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 23 disability is conclusively presumed. § 404.1520(a)(4)(iii). 24 If the claimant’s impairment or combination of impairments 25 does not meet or equal an impairment in the Listing, the fourth 26 step requires the Commissioner to determine whether the claimant 27 28 4 1 has sufficient residual functional capacity (“RFC”)4 to perform 2 his past work; if so, he is not disabled and the claim must be 3 denied. 4 proving he is unable to perform past relevant work. 5 F.2d at 1257. 6 case of disability is established. § 404.1520(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. 7 If that happens or if the claimant has no past relevant 8 work, the Commissioner then bears the burden of establishing that 9 the claimant is not disabled because he can perform other 10 substantial gainful work available in the national economy. 11 § 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257. 12 determination comprises the fifth and final step in the 13 sequential analysis. 14 n.5; Drouin, 966 F.2d at 1257. That § 404.1520(a)(4)(v); Lester, 81 F.3d at 828 15 B. The ALJ’s Application of the Five-Step Process 16 At step one, the ALJ found that Plaintiff had not engaged in 17 substantial gainful activity since July 31, 2009, the alleged 18 onset date. 19 severe medically determinable impairments: schizoaffective 20 disorder and left-eye keratoconus. 21 medically determinable impairments of obesity, hypertension, 22 sleep apnea, hyperlipidemia, gastroesophageal reflux disease, and 23 a history of left-knee meniscus tear, but she concluded that all 24 were nonsevere. (AR 20.) At step two, she concluded that he had two (AR 21-22.) (Id.) She also found At step three, she found that he 25 26 27 28 4 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017). 5 1 did not have an impairment or combination of impairments that met 2 or equaled a Listing. 3 4 (AR 22.) At step four, the ALJ found that Plaintiff had the RFC to perform a limited range of medium work: 5 [T]he claimant has the [RFC] to perform medium work as 6 defined in 20 CFR 404.1567(c) except he can occasionally 7 lift and carry 50 pounds and frequently 25 pounds; he can 8 sit, stand, and walk for up to six hours each in an 9 eight-hour day; can push and pull as much as he can lift 10 and carry. He can frequently climb stairs and ramps, 11 balance, stoop, kneel, and crouch, and never crawl or 12 climb ladders or scaffolds. 13 requires monocular vision. He should never be exposed to 14 unprotected 15 operating a motor vehicle. 16 supervisory contact, occasional contact with coworkers, 17 and no contact with the public. heights, He is limited to work that moving mechanical parts, or He is capable of frequent 18 (AR 25.) Based on the VE’s testimony, the ALJ concluded that 19 Plaintiff could not perform any past relevant work. 20 step five, she determined that given his “age, education, work 21 experience, and [RFC],” he could successfully perform numerous 22 medium-level jobs available in the national economy. 23 Thus, she found Plaintiff not disabled. 24 25 26 27 28 6 (AR 32.) (AR 30.) At (AR 31-32.) 1 2 V. RELEVANT BACKGROUND5 A. 3 4 Treating Physicians 1. Heritage Victor Valley Medical Group Plaintiff was initially treated for his mental impairments 5 by his general practitioners at Heritage. (See AR 28, 265-325.) 6 Before the alleged onset date, he saw Dr. Beverly J. Nester6 for 7 panic attacks (AR 300-01) and anxiety as well as his physical 8 ailments (AR 291). 9 as May 9, 2008. He began taking Xanax7 and Lexapro8 as early (AR 301.) Following the alleged onset date, he 10 saw Dr. Nester five times in 2009 (AR 278-87) and was treated for 11 psychiatric impairments on one of those visits: on December 10, 12 2009, when he was diagnosed with depressive disorder and given 13 samples of Lexapro (AR 278-79). 14 On March 18, 2010, Plaintiff again saw Dr. Nester, who noted 15 that he was “[n]egative for psychiatric symptoms,” had “[n]o 16 unusual anxiety or evidence of depression,” and couldn’t afford 17 his Lexapro. (AR 274-77.) 18 19 5 20 Because Plaintiff challenges the RFC based only on new evidence relating to his mental impairments, the Court does not address the evidence of his physical impairments. 21 6 22 23 24 25 26 27 28 The record does not indicate Dr. Nester’s medical specialty. 7 Xanax is name-brand alprazolam, a benzodiazepine used to treat anxiety and panic disorders. See Xanax, WebMD, https:// www.webmd.com/drugs/2/drug-9824/xanax-oral/details (last visited Jan. 7, 2019). 8 Lexapro is name-brand escitalopram oxalate, which is used to treat depression and anxiety by helping to restore the balance of serotonin in the brain. See Lexapro, WebMD, https:// www.webmd.com/drugs/2/drug-63990/lexapro-oral/details (last visited Jan. 7, 2019). 7 1 In 2011, Plaintiff saw Dr. Alireza Raboubi9 three times for 2 treatment of psychiatric impairments, among other things. (See 3 AR 265-73.) 4 and anxiety, which he reported experiencing for four to five 5 years. 6 but without hopelessness or suicidal ideation, and she increased 7 his dosage of Prozac.10 8 Plaintiff saw Dr. Raboubi for panic attacks and high blood 9 pressure and reported that he had stopped taking his medication. On January 20, 2011, he sought care for depression (AR 271-73.) Dr. Raboubi described Plaintiff as anxious (AR 272-73.) On January 24, 2011, 10 (AR 268-70.) 11 “depression” and administered Ativan.11 12 that Plaintiff was agitated and anxious but denied hopelessness, 13 suicidal ideation, or intent to harm others. 14 prescribed Klonopin.12 15 Dr. Raboubi for anxiety and high blood pressure; treatment notes 16 indicate that he was “completely stable” on Klonopin and Prozac, Dr. Raboubi diagnosed “panic anxiety syndrome” and (Id.) (AR 270.) She noted (AR 269-70.) She On February 4, 2011, Plaintiff saw 17 18 19 20 21 22 9 The record does not indicate Dr. Raboubi’s medical specialty. 10 Prozac is name-brand fluoxetine, which is used to treat depression and panic attacks. See Prozac, WebMD, https:// www.webmd.com/drugs/2/drug-6997/prozac-oral/details (last visited Jan. 7, 2019). 11 23 24 25 26 27 28 Ativan is name-brand lorazepam, a benzodiazepine medication used to treat anxiety. See Ativan, WebMD, https:// www.webmd.com/drugs/2/drug-6685/ativan-oral/details (last visited Jan. 7, 2019). It produces a calming effect in the central nervous system. Id. 12 Klonopin is name-brand clonazepam, a benzodiazepine medication used to treat panic attacks. See Klonopin, WebMD, https://www.webmd.com/drugs/2/drug-920-6006/klonopin-oral/ clonazepam-oral/details (last visited Jan. 7, 2019). It produces a calming effect in the central nervous system. Id. 8 1 with a stable mood and no evidence of unusual anxiety, 2 depression, or suicidal ideation. 3 4 2. (AR 265-66.) Telecare High Desert Crisis Walk-In-Center Plaintiff sought specialized psychiatric treatment at 5 Telecare beginning on April 3, 2012, when he saw psychiatrist 6 Aubrey King. 7 intervals over the next 16 months, usually seeing Dr. King but 8 once psychiatrist Anicia Pollcar instead. 9 returned some months later, on March 7, 2014, and was treated by 10 psychiatrist Harvey Presser (AR 352) and again on April 7, 2014, 11 when he saw Dr. Pollcar (AR 351). 12 the Telecare doctors, although difficult to read, indicate that 13 Plaintiff was generally anxious (AR 326-30, 332-35, 352), with a 14 reactive affect (AR 327-35, 351) and hallucinations (AR 328-34, 15 336, 351-52). 16 326-36, 351) and that medication was helpful (AR 326-27, 329-31, 17 333-34, 336). 18 19 3. (AR 335.) He visited Telecare 11 times at regular (AR 326-36.) He Medical-status exam notes from The exam notes also state that he was alert (AR LaSalle Medical Associates Plaintiff sought general medical care at LaSalle numerous 20 times between 2010 and 2015, and a handful of those visits 21 provide detail about his psychiatric impairments. 22 42, 349-50, 353-407, 497-98.) 23 depression, among other things, and was prescribed Lexapro. 24 338.) 25 disorder, anxiety, and depression. 26 March 27, and June 23, 2014, the treating providers noted his 27 anxiety and prescribed Xanax. 28 2014, Plaintiff sought care for depression and high blood (See AR 338- On May 7, 2010, he sought care for (AR On July 5, 2012, the treating provider noted bipolar (AR 339.) On February 11, (AR 349, 403, 406.) 9 On June 10, 1 pressure, and he received a referral for a mental-health exam. 2 (AR 405.) 3 whose “psych” examination notes state that his cognitive function 4 was “intact” and he was taking alprazolam. 5 December 21, 2014, he saw a different physician’s assistant; 6 treatment notes indicate he had stopped taking alprazolam and 7 showed a “mildly depressed affect.” 8 9 On September 10, 2014, he saw a physician’s assistant, 4. (AR 378.) On (AR 366, 368-69.) Mission City Community Network Beginning on October 23, 2014, Plaintiff saw psychiatrist 10 Salvador Arella at Mission City approximately monthly. 11 408-33, 495-96.) 12 preprinted form indicating nearly identical assessments: 13 Plaintiff was anxious, sad, and irritable; his medication was 14 beneficial; he had no thoughts of harm to self or others; he was 15 not having visual or auditory hallucinations although he had a 16 history of them; and he was diagnosed with schizoaffective 17 disorder. 18 Plaintiff display any signs of impaired thought process or 19 abnormal affect (compare AR 432, with AR 408, 410, 412, 414, 416, 20 418, 420, 422, 424, 426, 428, 430), and only at the first two 21 visits was his speech unusual (compare AR 432, 430, with AR 408, 22 410, 412, 414, 416, 418, 420, 422, 424, 426, 428). 23 early visits Dr. Arella checked a box indicating that 24 schizophrenia had to be ruled out (see AR 431-32), he 25 subsequently stopped checking the box and never diagnosed him 26 with that condition (see AR 409, 411, 413, 415, 417, 419, 421, (Id.) (See AR At each visit, Dr. Arella completed a Only at the first visit, in October 2014, did 27 28 10 Although at 1 423, 425, 427, 429).13 2 largely to have been medication management. 3 417, 419, 421, 423, 425, 427, 429, 431 (indicating “pharmacologic 4 mgmt” at 10 visits).) 5 took differing combinations of Xanax, Lexapro, Ambien,14 6 olanzapine,15 lithium, Abilify,16 and Topamax.17 7 The purpose of Plaintiff’s visits appears (See AR 413, 415, While under Dr. Arella’s care, Plaintiff (See, e.g., id.) Plaintiff’s condition improved during the course of Dr. 8 Arella’s treatment. At the three most recent visits, Dr. Arella 9 noted that he was “stable.” (AR 409, 411, 413.) On August 7 and 10 October 2, 2015, Plaintiff told Dr. Arella he was “more better.” 11 (AR 410, 412.) At the October 30, 2015 visit, Dr. Arella 12 13 13 14 15 16 17 18 19 20 21 22 Plaintiff stated at the December 2, 2015 hearing that he was “diagnosed as schizophrenic” about “a year, year and a half ago” (AR 42), but it is unclear what in the record he is referring to. 14 Ambien is name-brand zolpidem and is used to treat insomnia in adults. See Ambien, WebMD, https://www.webmd.com/ drugs/2/drug-9690/ambien-oral/details (last visited Jan. 7, 2019). 15 Olanzapine is used to treat certain mood conditions, such as schizophrenia and bipolar disorder, and can be used in combination with other medication to treat depression. See Olanzapine, WebMD, https://www.webmd.com/drugs/2/drug-1644-9274/ olanzapine-oral/olanzapine-oral/details (last visited Jan. 7, 2019). It can decrease hallucinations. Id. 16 23 24 25 26 27 28 Abilify is name-brand aripiprazole, an antipsychotic used to treat bipolar disorder, schizophrenia, and, in combination with other drugs, depression. See Abilify, WebMD, https:// www.webmd.com/drugs/2/drug-64439/abilify-oral/details (last visited Jan. 7, 2019). 17 Topamax is name-brand topiramate and is used to treat bipolar disorder. See Topiramate (Topamax), Nat’l All. Mental Illness, https://www.nami.org/Learn-More/Treatment/ Mental-Health-Medications/Types-of-Medication/ Topiramate-(Topamax) (last visited Jan. 7, 2019). 11 1 indicated that Plaintiff had “done well with the medicine” and 2 had “no major[] complaints.” 3 5. 4 (AR 408.) Emergency Medical Treatment Plaintiff visited the emergency room on May 27, 2014, for 5 high blood pressure and left-shoulder pain. (AR 438.) The 6 treating provider noted that he reported no psychiatric symptoms. 7 (AR 439.) 8 B. Examining Psychiatrist Earbin Stanciell 9 On February 17, 2014, consultative examining psychiatrist 10 Earbin Stanciell performed a complete psychiatric evaluation of 11 Plaintiff. 12 and Dr. Stanciell reviewed the Telecare treatment notes. 13 343.) 14 cooperative” during the evaluation. 15 kept” and “in no apparent distress.” 16 nothing unusual about his posture, bearing, manner, or hygiene.” 17 (Id.) 18 thought processes were linear and goal-directed. 19 exhibited no evidence of auditory or visual hallucinations; 20 reported no obsessions, compulsions or paranoia; and denied 21 suicidal or homicidal ideation. 22 oriented to person, place, time, and situation.” 23 had “common sense understandings” and “responded appropriately to 24 imaginary situations requiring social judgment and knowledge of 25 the norms.” 26 psychiatric treatment at the time. 27 28 (AR 343-47.) Plaintiff reported his medical history, (AR Dr. Stanciell observed that he was “engaged and (AR 343.) (AR 345.) He appeared “well “There was His speech was fluent, his affect appropriate, and his (Id.) (Id.) (Id.) He He was “alert and (Id.) He also He reported that he was not receiving any (AR 344.) Dr. Stanciell determined that Plaintiff had moderate difficulty maintaining social functioning and mild difficulty 12 1 focusing and maintaining attention, his level of personal 2 independence was adequate, and he was intellectually and 3 psychologically capable of performing his activities of daily 4 living. 5 would have no limitations performing either simple and repetitive 6 tasks or detailed and complex ones; mild limitations performing 7 work activities on a consistent basis without supervision, 8 completing a normal workday or workweek, and handling the usual 9 stress and demands of gainful employment; and moderate (AR 346.) Accordingly, Dr. Stanciell concluded that he 10 limitations accepting instructions from supervisors and 11 interacting with coworkers and the public. (Id.) 12 C. Plaintiff’s New Evidence 13 On March 26, 2016, just over two months after the ALJ issued 14 her decision, Dr. Arella completed a preprinted “MEDICAL SOURCE 15 STATEMENT OF ABILITY TO DO WORK-RELATED ACTIVITIES (MENTAL).” 16 (J. Stip., Ex. 1.) 17 Plaintiff had “marked”18 restrictions in every category listed on 18 the form. 19 to understand, remember, and carry out instructions,” he had 20 “marked” restrictions in understanding, remembering, and carrying 21 out short and simple or detailed instructions and in making 22 judgments on simple or complex work-related decisions. 23 1.) 24 boxes indicating that Plaintiff had “marked” restrictions on 25 maintaining attendance and punctuality during a workday and His check-box responses indicated that (See id. at 1-2.) As to those affecting his “ability (Id. at As to working and responding to others, Dr. Arella checked 26 27 28 18 “Marked” was defined as a “serious limitation” impacting the “ability to function independently, appropriately, effectively, and on a sustained basis.” (J. Stip., Ex. 1 at 1.) 13 1 workweek; performing at a consistent pace without more than 2 regular breaks in a workday; interacting appropriately with the 3 public, supervisors, and co-workers; sustaining an ordinary 4 routine without special supervision; and responding appropriately 5 to changes in a routine work setting. 6 medical or clinical findings supporting these assessments in the 7 blank spaces provided for that purpose. 8 9 (Id. at 2.) He listed no (Id. at 1-2.) The second portion of the statement, titled “EVALUATION FORM FOR MENTAL DISORDERS,” contains Dr. Arella’s short answers to 10 questions about Plaintiff’s impairments. 11 dated March 26, 2016, indicating that date as the most recent 12 examination. 13 reminders for his appointments; suffered from depression, 14 anxiety, and poor memory; had a history of sadness and depression 15 for four years; and had issues in his marital relationship. 16 (Id.) 17 Arella responded that he was tearful and labile, had poor 18 judgment, had an “isolative” affective status, and heard voices. 19 (Id. at 5.) 20 noted that he was “unable to maintain good functioning” for his 21 daily activities, “could not communicate” socially, was “unable 22 to complete tasks,” and had “poor judgment” in work or worklike 23 situations. 24 suffered from schizoaffective disorder. 25 prognosis was “guarded” and he “need[ed] help,” but he was 26 competent to manage funds on his own behalf. 27 28 (Id. at 4.) (Id. at 4-7.) It is Dr. Arella noted that Plaintiff needed For questions concerning Plaintiff’s “mental status,” Dr. As to his “current level of functioning,” Dr. Arella (Id. at 6.) He was taking Abilify and Xanax and (Id. at 7.) His (Id.) Plaintiff first presented Dr. Arella’s medical-source statement to the Appeals Council, seeking remand in order to 14 1 allow the ALJ to consider the new evidence. (AR 256-57.) 2 Appeals Council “looked at” the document but noted that it was 3 “new information [] about a later time” and therefore did not 4 “affect the decision about whether [Plaintiff] was disabled 5 beginning on or before January 20, 2016.” 6 the Appeals Council denied review. 7 VI. (AR 2.) The As a result, (AR 1.) DISCUSSION 8 Remand Is Not Warranted Based on Dr. Arella’s Medical-Source 9 Statement 10 Plaintiff argues that the new evidence he submitted with his 11 appeal demonstrates that the ALJ’s RFC assessment was “not based 12 on substantial evidence and is a result of legal error.” 13 Stip. at 5-9.) 14 proceedings so that the ALJ can consider the new evidence.19 15 (Id. at 9.) 16 warranted. 17 18 A. (J. He asks the Court to remand for further For the reasons discussed below, remand is not Applicable Law A district court must uphold an ALJ’s RFC assessment when 19 the ALJ has applied the proper legal standard and substantial 20 evidence in the record as a whole supports the decision. 21 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 22 consider all the medical evidence in the record and “explain in 23 [his] decision the weight given to . . . [the] opinions from Bayliss The ALJ should 24 25 26 27 28 19 Most of the “new” evidence submitted to the Appeals Council was already in the record. (See AR 2.) In addition to Dr. Arella’s March 2016 opinion, the other truly new evidence consisted of treatment notes from Mission City from July through September 2016. (Id.) Those notes are from more than six months after the relevant period ended, however, and Plaintiff does not discuss them. Accordingly, the Court doesn’t either. 15 1 treating sources, nontreating sources, and other nonexamining 2 sources.” 3 will assess your residual functional capacity based on all the 4 relevant evidence in your case record.”); SSR 96-8p, 1996 WL 5 374184, at *2 (July 2, 1996) (RFC must be “based on all of the 6 relevant evidence in the case record”). 7 determination, the ALJ may consider those limitations supported 8 in the record and need not consider properly rejected evidence or 9 subjective complaints. § 404.1527(e)(2)(ii); see also § 404.1545(a)(1) (“We In making an RFC See Bayliss, 427 F.3d at 1217 (upholding 10 ALJ’s RFC determination because “the ALJ took into account those 11 limitations for which there was record support that did not 12 depend on [claimant’s] subjective complaints”); Batson v. Comm’r 13 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not 14 required to incorporate into RFC any findings from treating- 15 physician opinions that were “permissibly discounted”). 16 At the time of the relevant proceedings here, Social 17 Security Administration regulations allowed claimants to submit 18 “new and material evidence to the Appeals Council and require[d] 19 the Council to consider that evidence in determining whether to 20 review the ALJ’s decision, so long as the evidence relate[d] to 21 the period on or before the ALJ’s decision.” 22 Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012); see also 23 § 404.970(b). 24 in deciding whether to review a decision of the ALJ, that 25 evidence becomes part of the administrative record, which the 26 district court must consider when reviewing the Commissioner’s 27 final decision for substantial evidence.” 28 1163. Brewes v. Comm’r of “[W]hen the Appeals Council considers new evidence Brewes, 682 F.3d at Remand is necessary when a “reasonable possibility” exists 16 1 that “the new evidence might change the outcome of the 2 administrative hearing.” 3 App’x 651, 652 (9th Cir. 2014). 4 Borrelli v. Comm’r of Soc. Sec., 570 F. Medical examinations taking place after the ALJ’s decision 5 may still relate to a claimant’s conditions “during the relevant 6 time period.” 7 4895678, at *3 (C.D. Cal. Sept. 30, 2014). 8 the Appeals Council errs in dismissing the evidence solely 9 because it was dated after the ALJ’s decision. Handy v. Colvin, No. CV 14–02149–SH., 2014 WL In such circumstance, See id.; see also 10 Baccari v. Colvin, No. EDCV 13–2393 RNB., 2014 WL 6065900, at *2 11 (C.D. Cal. Nov. 13, 2014) (that claimant submitted evidence to 12 Appeals Council that was “generated after the ALJ’s decision 13 . . . is not dispositive of whether the evidence was 14 chronologically relevant” and collecting cases). 15 especially true when the plaintiff’s condition is “chronic” or 16 relatively “longstanding.” 17 Bergmann v. Apfel, 207 F.3d 1065, 1070 (8th Cir. 2000) (finding 18 that posthearing evidence required remand because it concerned 19 deterioration of “relatively longstanding” impairment). 20 21 B. This is See Baccari, 2014 WL 6065900, at *2; Analysis Even assuming Dr. Arella’s medical-source opinion concerned 22 the relevant time period, it does not undermine the ALJ’s 23 decision that Plaintiff could perform a limited range of medium 24 work. 25 history of depression, anxiety, auditory hallucinations, and 26 paranoia (AR 28, 326-36, 351-52, 408-33), regular treatment and 27 medication stabilized his condition (AR 265, 269, 275-75, 326-27, 28 329-31, 333-34, 336, 408-33). (See AR 25-30.) His medical records showed that despite a For example, after she had 17 1 prescribed Plaintiff Lexapro, Dr. Nester found that he was 2 “negative for psychiatric symptoms,” without “unusual anxiety or 3 evidence of depression.” 4 as “completely stable on [K]lonopin.” 5 the emergency room on May 27, 2014, he reported no psychiatric 6 symptoms to the treating physician. 7 that Plaintiff had “done well with the medicine” and had “no 8 major complaints.” 9 most recent treatment notes generally indicated that he was (AR 275-76.) (AR 408.) Dr. Raboubi described him (AR 265.) (AR 439.) When he visited Dr. Arella noted As the ALJ discussed, Dr. Arella’s 10 feeling better and was assessed as stable. 11 408-33).) 12 medication regimen, he had not expressed suicidal ideation (AR 13 265, 270, 272, 408-33) and more recently had not reported any 14 auditory hallucinations (AR 408-33).20 15 (AR 28 (citing AR Medical records indicated that since beginning his Despite substantial evidence in the record that Plaintiff 16 had few if any limitations arising from his mental impairments, 17 the ALJ limited him to “frequent supervisory contact, occasional 18 contact with coworkers, and no contact with the public,” giving 19 him the benefit of the doubt. 20 supported the finding that he was not disabled. 21 Comm’r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 2006) (stating 22 that “[i]mpairments that can be controlled effectively with 23 medication are not disabling for the purpose of determining 24 eligibility for SSI benefits”); Carey v. Berryhill, No. 16cv2891- 25 CAB (BLM), 2017 WL 3457386, at *5 (S.D. Cal. Aug. 11, 2017) (AR 25.) Substantial evidence See Warre v. 26 27 28 20 Plaintiff claimed at the hearing to hear voices every day (AR 42), but the ALJ found those statements not credible (AR 26), which he has not challenged on appeal. 18 1 (finding plaintiff diagnosed with anxiety and panic disorder not 2 disabled when medical records showed symptoms were improving and 3 were controlled with medication), accepted by 2017 WL 4856874 4 (S.D. Cal. Aug. 29, 2017). 5 Plaintiff claims that remand is necessary because consulting 6 examiner Dr. Stanciell, whose opinion the ALJ gave “partial 7 weight,” found that Plaintiff had only moderate and mild 8 difficulties and might have changed his view with access to Dr. 9 Arella’s March 2016 opinion. (J. Stip. at 8.) 10 “reasonable possibility” of that. 11 652. There is no See Borrelli, 570 F. App’x at 12 As Defendant correctly notes (J. Stip. at 12-14), Dr. 13 Arella’s March 26, 2016 medical-source statement is entitled to 14 little weight given its conclusory nature. 15 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The ALJ need not 16 accept the opinion of any physician, including a treating 17 physician, if that opinion is brief, conclusory, and inadequately 18 supported by clinical findings.”) 19 medical opinion listing Plaintiff’s limitations as “marked” is a 20 check-box form with no medical or clinical findings provided in 21 the spaces to support the assessment (see J. Stip., Ex. 1 at 1-3) 22 and thus is properly discounted. 23 F. App’x 410, 410 (9th Cir. 2016) (physician’s opinion properly 24 rejected when it was “unexplained and unsupported by evidence”); 25 see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) 26 (ALJ may reject opinions that consist “primarily of a 27 standardized, check-the-box form”). 28 See Thomas v. Indeed, that portion of the See Van Orsdol v. Colvin, 671 Moreover, the new evidence contradicts Dr. Arella’s numerous 19 1 prior treatment notes indicating that Plaintiff’s symptoms were 2 under control with medication and that he was feeling better, 3 which the ALJ properly noted. 4 419, 422-23, 425-26, 428-29)); see Saelee v. Chater, 94 F.3d 520, 5 522 (9th Cir. 1996) (per curiam) (as amended) (ALJ properly 6 disregarded doctor’s report when it varied from his treatment 7 notes); O’Neal v. Barnhart, No. EDCV 04-01007-MAN., 2006 WL 8 988253, at *8 (C.D. Cal. Apr. 13, 2006) (inconsistency between 9 treating physician’s medical opinion and examination notes was (AR 28 (citing AR 409-13, 417, 10 specific and legitimate reason for rejecting opinion). 11 addition, Dr. Stanciell did review the Telecare treatment notes 12 (see AR 343), which were similar to Dr. Arella’s notes (compare 13 AR 326-36, with AR 408-33). 14 any weight to another doctor’s opinion so flatly undermined by 15 the doctor’s own treatment notes and the rest of the record, 16 including the Telecare notes. 17 In Dr. Stanciell was unlikely to give Because Dr. Arella’s statement does not render the ALJ’s RFC 18 assessment unsupported by substantial evidence, remand is not 19 warranted. 20 CV 11–09331 AJW., 2012 WL 5381374, at *6 (C.D. Cal. Oct. 31, 21 2012) (declining to reverse when new evidence submitted to 22 Appeals Council did “not alter the conclusion that the ALJ’s 23 decision was supported by substantial evidence in the record as a 24 whole”). See Bayliss, 427 F.3d at 1217; Marin v. Astrue, No. 25 26 27 28 20 1 2 VII. CONCLUSION Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g),21 IT IS ORDERED that judgment be entered 4 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 5 request for remand, and DISMISSING this action with prejudice. 6 7 DATED: January 8, 2019 8 ________________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 21

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