(SS) Felix v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: April 21, 2025
• Docket: 1:20-cv-01774
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDUARDO FELIX, Case No. 1:20-cv-01774-JLT-BAM 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. REGARDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 14 LELAND DUDEK, Acting Commissioner 15 of Social Security,1 (Docs. 18, 21) 16 Defendant.

17 18

19 INTRODUCTION 20 Plaintiff Eduardo Felix (“Plaintiff”) seeks judicial review of a final decision of the 21 Commissioner of Social Security (“Commissioner”) denying his application for Disability Insurance 22 Benefits under Title II of the Social Security Act. The parties’ briefing on the motion was submitted, 23 without oral argument, to Magistrate Judge Barbara A. McAuliffe for findings and recommendations. 24 (Docs. 18, 21.) Having considered the parties’ briefs, along with the entire record in this case, the 25 Court finds that the decision of the Administrative Law Judge (“ALJ”) was supported by substantial 26

27 1 Leland Dudek became the Acting Commissioner of Social Security in February 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Leland Dudek is substituted for Kilolo Kijakazi as 28 Defendant in this suit. 1 evidence in the record and was based upon proper legal standards. Accordingly, this Court will 2 recommend affirming the agency’s determination to deny benefits. 3 FACTS AND PRIOR PROCEEDINGS 4 Plaintiff applied for Title II Disability Insurance Benefits on December 21, 2016, alleging that 5 he became disabled on June 1, 2015. AR 189-91. 2 The claim was denied initially on February 16, 6 2017, and on reconsideration on April 20, 2017. AR 79, 80-92. Plaintiff requested a hearing before 7 an administrative law judge (“ALJ”) and ALJ Kellie Wingate Campbell held a hearing on May 16, 8 2019. AR 35-63. ALJ Campbell issued an order denying benefits on the basis that Plaintiff was not 9 disabled on June 26, 2019. AR 20-34. Plaintiff sought review of the ALJ’s decision, which the 10 Appeals Council denied. AR 5-19. This appeal followed. 11 Medical Record 12 The relevant medical record was reviewed by the Court and will be referenced below as 13 necessary to this Court’s decision. 14 The ALJ’s Decision 15 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 16 determined that Plaintiff was not disabled under the Social Security Act. AR 20-34. Specifically, the 17 ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of 18 June 1, 2015. AR 25. The ALJ identified the following severe impairments: major depressive 19 disorder, anxiety disorder, posttraumatic stress disorder (" PTSD"), and gambling addiction. AR 26. 20 The ALJ further determined that Plaintiff did not have an impairment or combination of impairments 21 that met or medically equaled any of the listed impairments. AR 26-28. 22 Based on a review of the entire record, the ALJ found that Plaintiff retained the residual 23 functional capacity (“RFC”) to perform work at all exertional levels except that Plaintiff was limited 24 to remembering and carrying out simple, routine tasks and making simple work-related decisions; 25 could not perform production pace tasks with strict hourly goals; could have occasional contact with 26 27 2 References to the Administrative Record will be designated as “AR,” followed by the appropriate 28 page number. 1 supervisors and brief, incidental contact with co-workers and the general public; and would be off-task 2 five percent of the workday. AR 28. The ALJ considered “all symptoms and the extent to which 3 these symptoms can reasonably be accepted as consistent with the objective medical evidence and 4 other evidence,” as well as “opinion evidence.” Id. 5 The ALJ found that Plaintiff had no past relevant work, was defined as a younger individual on 6 the alleged disability onset date, had at least a high school education and could communicate in 7 English, and that transferability of job skills was not material to the disability determination. AR 32- 8 33. Given Plaintiff’s age, education, work experience, and RFC, the ALJ found that there were jobs 9 that existed in significant numbers in the national economy that Plaintiff could perform. AR 33-34. 10 The ALJ noted that examples of jobs consistent with Plaintiff’s age, education, work experience, and 11 RFC included: Stubber, Retail Trade (DOT No. 222.687-034, unskilled, medium exertional level, with 12 approximately l00,000 such occupations in the national economy); Scrap Sorter (DOT No. 509.686- 13 018, unskilled, medium exertional level, with approximately 30,000 such occupations in the national 14 economy); and Lumber Straightener (DOT No. 669.687-018, unskilled, medium exertional level, with 15 approximately 100,000 such occupations in the national economy). Id. The ALJ therefore concluded 16 that Plaintiff had not been disabled from June 1, 2015, through the date of the decision. AR 34. 17 SCOPE OF REVIEW 18 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 19 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 20 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 21 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 22 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 23 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 24 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 25 considered, weighing both the evidence that supports and the evidence that detracts from the 26 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 27 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 28 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 1 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 2 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 3 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 4 REVIEW 5 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 6 substantial gainful activity due to a medically determinable physical or mental impairment which has 7 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 8 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 9 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 10 her age, education, and work experience, engage in any other kind of substantial gainful work which 11 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 12 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 13 1990). 14 DISCUSSION3 15 Plaintiff first argues that the ALJ erred by failing to provide clear and convincing reasons for 16 discounting Plaintiff’s subjective symptoms. (Doc. 18 at 7-11.) Plaintiff also argues that the ALJ 17 failed to properly weigh the weigh the opinion of Marian Carapezza, LCSW or provide a germane 18 reason for rejecting her opinion. (Id. at 11-13.) Finally, Plaintiff argues that the Appeals Council 19 failed to appropriately evaluate new evidence submitted by Plaintiff after the ALJ’s decision. (Id. at 20 13-15.) 21 A. Plaintiff’s Subjective Complaints 22 Plaintiff contends that the ALJ committed harmful error by failing to provide clear and 23 convincing reasons for rejecting Plaintiff’s testimony. (Doc. 18 at 7-11.) In deciding whether to 24 admit a claimant’s subjective complaints, the ALJ must engage in a two-step analysis. Garrison v. 25 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm’r, 359 F.3d 1190, 1196 (9th Cir. 2004). 26

27 3 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific 28 argument or brief is not to be construed that the Court did not consider the argument or brief. 1 First, the claimant must produce objective medical evidence of her impairment that could reasonably 2 be expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014. If 3 the claimant satisfies the first step and there is no evidence of malingering, the ALJ may reject the 4 claimant’s testimony regarding the severity of her symptoms only by offering specific, clear and 5 convincing reasons for doing so. Id. at 1015. 6 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 7 expected to cause the alleged symptoms. AR 29. However, the ALJ discounted Plaintiff’s statements 8 concerning the intensity, persistence, and limiting effects of those symptoms, noting that the 9 statements were not consistent with medical evidence and other evidence in the record. Id. The ALJ 10 was therefore required to provide specific, clear and convincing reasons for discounting Plaintiff’s 11 subjective complaints. 12 First, the ALJ found that Plaintiff’s allegations were not fully consistent with the medical and 13 other evidence, noting that Plaintiff’s “statements and allegations are not fully consistent with the 14 medical and other evidence.” AR 47. Although lack of supporting medical evidence cannot form the 15 sole basis for discounting testimony, it is a factor that the ALJ can consider. See Burch v. Barnhart, 16 400 F.3d 676, 681 (9th Cir. 2005). 17 Here, the ALJ contrasted Plaintiff’s allegations with the objective findings as follows: 18 In general, the claimant has presented as depressed and/or anxious with a congruent or constricted affect, some psychomotor slowing, and 19 limited insight and judgment, primarily related to his gambling. He has also reported vague, transient suicidal ideation (Exhibits 1F/53, 72, 79, 20 97, 105, 173, 199, 224, 254, 266; 2F/46, 114; 3F/98, 164-65; 4F/133, 21 225; 5F/117; 6F/72, 86-87, 109, 186-87, 214; 7F/19; 8F/128-29, 152; 10F/7; 11F/39-40, 55-56, 69, 94, 109-10). The claimant was unable to 22 complete the serial sevens task on September 14, 2016 (Exhibits 1F/24- 25, 10F/34-35). He presented as unkempt on November l6 and 23 December 14, 2016 (Exhibit 1F/6, 8, 10F/13, 15). On August 7, 2018 24 and February 12, 2019, the claimant appeared tired, apathetic, and poorly motivated (Exhibit 11 Fil 4. 36). In contrast. multiple 25 examinations have yielded grossly normal findings (Exhibits lF/118. 192; 5F/63, 100, 163, 178, 205: 7F/10; SF/60-61; 11F/18, 21, 23, 27, 32, 26 57, 74, 81, 88, 113). Moreover, the claimant has not been prescribed 27 treatment reasonably commensurate with his allegations. He was admitted for inpatient psychiatric care four years ago from June 24 to 28 June 30, 2015. Otherwise, his mental impairments have been managed 1 with case management. individual therapy, group support, and medication management, such as the use of bupropion and venlafaxine 2 hydrochloride. The medical evidence also reflects several failures to appear for appointments, noncompliance with medication treatment at 3 times, and initial refusals to engage in individual therapy or group 4 therapy related to gambling (Exhibits 6F/14, 18, 20, 36, 39, 41. 58: 11F/13; 18, 20, 35, 55; 73). When he did attend group therapy, he 5 listened attentively, asked appropriate questions. And provided feed feedback and support as necessary, completing his assignment (Exhibit 6 2F/110-112). 7 As is indicated above, although the claimant has presented with some 8 chronic abnormalities, those medical signs have not been reasonably consistent with the claimant's allegations regarding the intensity, 9 persistence, and limiting effects of his impairments. He has simply not 10 demonstrated abnormalities commensurate with the degree of limitations alleged. Notably absent in this regard is evidence of uncontrollable or 11 inconsolable anxiety, depression, or hostility; serious social deficits; or persistent memory, attention. or concentration deficits. Notably, he has 12 not been recommended for greater treatment measures reasonably consistent with the degree of limitation he alleged. Rather, he has been 13 prescribed routine, conservative care since July 2015, and that care is 14 not objectively documented to have resulted in limiting side effects. He often reported improvement with medication, which he acknowledged 15 taking on a "hit or miss" basis or when he felt like taking it (Exhibits 6F/13, 39, 45; 11F/13, 35, 55, 68; 93). 16

17 After a careful review of the record, the undersigned finds that the medical evidence does not reasonably support a conclusion that the 18 claimant has any greater functional limitations than are included in the above residual functional capacity. For example, the record does not 19 document exacerbations of the claimant's medical conditions that occur 20 with such frequency as would reasonably give rise to a conclusion that the claimant would be absent from work with any regularity. Similarly, 21 the claimant has not presented with pain behavior, profound emotional distress, regular exacerbations of his impairments, fatigue, or deficits 22 with attention or concentration that would support a finding that he either requires extra work breaks in addition to, or would be off-task 23 beyond. what can be accommodated by the work breaks customarily 24 offered by competitive employment (i.e., a 15-minutc morning break, a 30-minute lunch break, and a 15-minutc afternoon break). The record 25 also does not reasonably support a finding that the claimant has any greater social limitations than that he can have occasional contact with 26 supervisors and brief, incidental contact with co-workers and the general 27 public. For example, he is not noted to have had difficulty waiting in public areas, to behave inappropriately with office staff, or to be unable 28 to form a therapeutic rapport with treatment providers. He has operated a 1 motor vehicle on public highways numerous times since the alleged onset date, such as to medical appointments, to casinos and to provide 2 transportation for a family member.

3 AR 29-31. 4 The ALJ appropriately contrasts Plaintiff’s allegations that that his mental impairments 5 prevented him from working with evidence from medical reports that demonstrated relatively normal 6 findings. For instance, a cited June 2015 report included Plaintiff’s reported “intense anxiety and 7 feeling overwhelmed,” anhedonia, difficulty concentrating, lack of energy, and passive suicidal 8 ideation, but the Mental Status Exam found that Plaintiff was “Dressed in clean VA attire, hygiene and 9 grooming were good,” “Full” cooperation, good eye contact, normal speech, “good” mood, 10 “Euthymic, reactive with good range” affect; linear, logical, and goal directed thought process; and 11 thought content was negative for delusions, hallucinations, paranoia, current suicidal or homicidal 12 ideation; and appeared alert and oriented with grossly intact memory. AR 432. Additionally, a cited 13 August 2016 progress note stated that Plaintiff “participated during group by listening attentively, 14 asking appropriate questions, and providing feedback and support as necessary… completed his 15 practice assignment related to daily completion of the Challenging Beliefs Worksheets and [wrote] a 16 final Impact Statement…” and was “optimistic about the future, and described how his beliefs have 17 shifted over the course of the group.” AR 695. The ALJ therefore appropriately used the lack of 18 medical evidence as one factor to discount Plaintiff’s symptoms testimony. 19 Second, the ALJ noted that Plaintiff’s work record and activities of daily living did not suggest 20 the extreme limitations that Plaintiff alleged. AR 31. An ALJ may properly discount a claimant's 21 subjective complaints when the daily activities demonstrate an inconsistency between what the 22 claimant can do and the degree that disability is alleged. Molina v. Astrue, 674 F.3d 1104, 1112–13 23 (9th Cir. 2012) (an ALJ may consider “whether the claimant engages in daily activities inconsistent 24 with the alleged symptoms”), superseded by regulation on other grounds. Even where a plaintiff's 25 activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's 26 testimony to the extent that they contradict claims of a totally debilitating impairment. Id. at 1113. 27

28 1 Here, the ALJ stated: 2 In further assessing the claimant's allegations, the undersigned has given due consideration to the claimant's work record and activities of' daily 3 living. First, the claimant has a steady work record prior to the alleged onset date of disability: however, the undersigned notes that the claimant 4 has reported that he has no intention of ever returning to work (Exhibits 5 12D; 1F/8, 19). Second, as is indicated in the above discussion of the "paragraph B" criteria and review of the claimant's medical records, the 6 cumulative evidence does not establish a reasonable basis for the extreme limitations the claimant alleged with regard to his activities of 7 daily living. The weight of the evidence indicates that it is more likely 8 than not that, to the extent the claimant's activities of daily living are limited, this is due primarily to non-disability factors, such as a lifestyle 9 choice, rather than being the necessary consequence of his impairments.

10 AR 31. In discussing the “Paragraph B” criteria, the ALJ earlier noted: 11 The claimant alleged that his abilities to engage in virtually all activities 12 of daily living have been profoundly limited by his impairments. For example, he reported relying on his brother and mother to perform 13 household chores and that be has no hobbies (Exhibit 7E). “Claimant has stopped brushing his teeth on a daily basis. He no longer gets any 14 haircuts and does not socialize.” (Exhibit 5E/5). “I do what I can when I'm not out of my mind. Like take out trash.” (Exhibit 10E/5). By 15 comparison to his representations to the Social Security Administration. 16 the claimant's treatment records indicate he is independent with his activities of daily living (Exhibits 2F/52, 9F/5, 11F/26). The record also 17 notes that the claimant is able to function outside his home by walking regularly, doing yard work, and going to a casino (Exhibits 1F/8; l0F/5, 18 11, 15; 11F/13, 36, 39, 57, 69, 73, 81). He testified to driving his mother 19 172 miles one-way to Salinas, California after the alleged onset date of disability (Claimant’s Testimony)… 20 AR 27. 21 In the examination of Plaintiff’s daily activities, the ALJ contrasted the alleged extreme 22 limitations with reports that Plaintiff’s daily activities were less limited. AR 27; 31; 2186 (February 23 2019 report noting Plaintiff was doing yardwork and was gambling at local casinos once weekly); AR 24 2199 (August 2018 report by caregiver support coordinator noting Plaintiff “was able to complete all 25 of his ADL’s and we found no safety issues nor did either one of them mention any safety issues 26 which required regular supervision…” and that Plaintiff was “‘Independent’ of his ADL’s”). By 27 contrasting Plaintiff’s alleged disabilities with Plaintiff’s reported daily activities, the ALJ 28 1 appropriately used Plaintiff’s reported daily activities to discount his symptoms testimony. Molina, 2 674 F.3d at 1112-13. 3 Third, the ALJ further noted Plaintiff’s conservative treatment. AR 30. An ALJ is permitted 4 to consider evidence of conservative treatment in evaluating a claimant's subjective complaints. See 5 Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (finding evidence of conservative treatment 6 sufficient to discount claimant's testimony regarding severity of impairment); Warre v. Comm'r of Soc. 7 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively 8 with medication are not disabling.”); see also 20 C.F.R. § 404.1529(c)(3)(iv), (v) (medication 9 effectiveness and treatment history are relevant factors for evaluating a claimant's symptom 10 testimony). 11 Here, the ALJ noted that Plaintiff had: 12 …not been recommended for greater treatment measures reasonably consistent with the degree of limitation he alleged. Rather, he has been 13 prescribed routine, conservative care since July 2015, and that care is not objectively documented to have resulted in limiting side effects. He 14 often reported improvement with medication, which he acknowledged 15 taking on a "hit or miss" basis or when he felt like taking it (Exhibits 6F/l3, 39, 45; 11F/13, 35, 55, 68; 93). 16 AR 30. The record cited reflects that, even when Plaintiff was not fully compliant with medication 17 prescriptions, his mental exam findings were generally normal and reflected improvement. See AR 18 2186-87 (February 2019 report noting generally normal mental exam findings but “Transient passive 19 SI” and that Plaintiff “endorses adherence with bupropion and venlafaxine with no adverse effects. He 20 says he takes VPA ‘hit or miss’, last took VPA 3 weeks ago… When he does take Divalproex, Veteran 21 endorses sleeping better, getting 7-8 hours.”); 2208-09 (August 2018 report with generally normal 22 mental exam findings but “Transient passive SI” and incongruent affect, and noting Plaintiff “endorses 23 adherence with bupropion and venlafaxine with no adverse effects. He says he takes VPA very rarely, 24 sometimes off the med for most of the month… When he does take Divalproex, Veteran endorses 25 sleeping better, getting 7-8 hours.”); 2228 (February 2018 report noting general normal mental exam 26 findings, Plaintiff was feeling “hopeful,” and that Plaintiff was “Adherent with Bupropion & 27 Venlafaxine daily with no adverse effects. Endorses 45% adherence with Divalproex at bedtime… 28 1 When he does take Divalproex, Veteran endorses sleeping better, getting 7-8 hrs. sleep/night and 2 awakes feeling rested and refreshed.”). Accordingly, the ALJ appropriately used evidence of 3 conservative, effective treatment in discounting Plaintiff’s symptoms testimony. 4 Plaintiff argues that the ALJ cherry-picked evidence of to support the conclusion that 5 Plaintiff’s care was conservative or routine, instead emphasizing Plaintiff’s 2016 108-day stay in a 6 trauma recovery program and other instances of worsening symptoms. (Doc. 18 at 8-10.) Indeed, an 7 “ALJ may not cherry-pick evidence to support the conclusion that a claimant is not disabled, but must 8 consider the evidence as a whole in making a reasoned disability determination.” Williams v. Colvin, 9 No. ED CV 14-2146-PLA, 2015 WL 4507174, at *6 (C.D. Cal. July 23, 2015) (citing Holohan v. 10 Massanari, 246 F.3d 1195, 1207 (9th Cir.2001)). Here, the ALJ reviewed the record related to 11 Plaintiff’s severe mental impairments and explained that Plaintiff “often reported improvement with 12 medication” despite taking medication on a “hit or miss” basis. AR 30; 2186-87; 2208-09; 2228. The 13 ALJ did not ignore the medical record regarding Plaintiff’s severe mental impairments but instead 14 cited to different findings over multiple years to support the conclusion that Plaintiff’s impairments 15 were controlled with conservative treatment. Id. When viewing the medical record as a whole, it was 16 reasonable for the ALJ to conclude that Plaintiff’s impairments were controlled effectively with 17 conservative treatment. Moreover, to the extent Plaintiff suggests an alternative interpretation of the 18 evidence (See Doc. 18 at 8-11), this is insufficient to establish reversible error. If the evidence “is 19 susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.” 20 Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (citing Burch, 400 F.3d at 679). 21 Accordingly, the ALJ did not err in discounting Plaintiff’s symptoms testimony. 22 B. Other Source Opinion of LCSW Marian Carapezza 23 Plaintiff next contends that the ALJ failed to properly weigh the opinion of Marian Carapezza, 24 LCSW. (Doc. 18 at 11-13.) Under the regulations then-applicable to Plaintiff's claims, as a licensed 25 clinical social worker, LCSW Carapezza is not an “acceptable medical source,” but rather an “other 26 source.” See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (acceptable medical sources are 27 generally limited to physicians and other qualified specialists); 20 C.F.R. 404.1513(d) (“other sources” 28 include nurse practitioners and physicians’ assistants). Although required to consider evidence from 1 “other sources,” an ALJ may discount testimony from these other sources by providing reasons 2 “germane to each witness for doing so.” See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016); 3 Molina, 674 F.3d at 1111. 4 Here, the ALJ assigned LCSW Carapezza’s opinion “little weight,” writing: 5 The February 2, 2017 statement of treating source Marian Carapezza, LCSW, is given little weight as opinion evidence (Exhibit 9F). Ms. 6 Carapezza is not an acceptable medical source (20 CFR, 404.1527(f)). More significantly, her opinion is neither supported by nor consistent 7 with the preponderance of the evidence. Ms. Carapezza expressly based 8 her opinion upon the claimant's self-reported limitations, including his purported inability to pay attention for the duration of one-hour 9 television programs and his purported anger episodes, particularly towards authority figures. However, as is explained above, such 10 abnormalities are not documented in the case record. For example, the 11 claimant's treatment records do not document any persistent deficits with attention or concentration. He merely had difficulty with the serial 12 sevens task during one examination. Similarly, although he has reported significant social deficits, he has not displayed any serious social 13 abnormalities upon examination and, by his own report, is able to 14 function in such social settings as a casino. Accordingly, the statement of Ms. Carapezza is given little weight as opinion evidence. 15 16 AR 31-32. 17 The ALJ did not err by according little weight to LCSW Carapezza’s opinion because it was 18 inconsistent with objective findings on clinical examination. AR 31-32. The fact that an “other 19 source” opinion is inconsistent with objective medical evidence in the record is a germane reason to 20 discount it. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“The ALJ accepted the 21 testimony of Bayliss’s family and friends that was consistent with the record of Bayliss’s activities and 22 the objective evidence in the record; he rejected portions of their testimony that did not meet this 23 standard.”); Molina, 674 F.3d at 1112 (finding ALJ properly rejected opinion of physician's assistant 24 based on inconsistency with objective medical evidence); see also Shorter v. Saul, 777 F. App’x 209, 25 211 (9th Cir. 2019) (finding ALJ properly rejected other source opinion of nurse practitioner based on 26 inconsistency with objective medical evidence, including treatment notes showing largely 27 unremarkable examinations and findings of improvement with medication). 28 1 Here, the ALJ noted that LCSW Carapezza based her opinion upon Plaintiff’s self-reported 2 more extreme abnormalities which were “not documented in the record,” and the ALJ instead pointed 3 to the lack of treatment records demonstrating deficits in attention or concentration. AR 30-32; see 4 AR 2228 (February 2018 report noting normal thought process findings); 2282 (April 2017 report 5 noting “Thought process (associations, concentration, abstractions, judgments, insight, serial 7s): 6 Intact”). The ALJ therefore offered the germane reason of inconsistency with objective medical 7 evidence for assigning little weight to LCSW Carapezza’s opinion.4 8 Plaintiff argues that the ALJ cherry-picked evidence in discounting LCSW Carapezza’s 9 opinion. (Doc. 18 at 12-13.) An “ALJ may not ‘cherry-pick’ evidence in discounting a medical 10 opinion.” Cruz v. Kijakazi, No. 1:21-cv-01248-AWI-HBK, 2023 WL 1447855, at *5 (E.D. Cal. Feb. 11 1, 2023). When district courts have analyzed arguments regarding cherry-picking, they have 12 examined whether the ALJ appropriately reviewed the record as a whole. Id. Here, the ALJ cited to 13 different reports from different years that appear to be fairly representative. AR 30-32; see AR 2228, 14 2282. Moreover, in place of the ALJ’s interpretation, Plaintiff offers his own interpretation of the 15 record. Again, an alternative interpretation of the evidence is insufficient to establish reversible error. 16 If the evidence “is susceptible to more than one rational interpretation, it is the ALJ's conclusion that 17 must be upheld.” Ford, 950 F.3d at 1154. Plaintiff’s argument regarding cherry-picking of evidence 18 in discounting LCSW Carapezza’s opinion is therefore unavailing. 19 Accordingly, the ALJ did not err in assigning LCSW Carapezza’s opinion little weight. 20 C. Plaintiff’s New Evidence & Appeals Council Analysis 21 Plaintiff contends that the Appeals Council erred by failing to incorporate and evaluate new 22 material evidence submitted by Plaintiff. (Doc. 18 at 13-15.) Subsequent to his ALJ hearing, Plaintiff 23 obtained two medical source statements from treating providers Joy Anne Rodriguez, M.D. and 24 Jeffrey Fay, MSN, PMHNP. AR 11-15 (Physical Medical Source Statement from Joy Anne 25 26 4 Plaintiff argues that the ALJ rejected LCSW Carapezza’s opinion because it was based upon self- 27 reporting. (Doc. 18 at 12.) However, the ALJ did not solely discount the opinion because it was based upon self-reporting, but because it was inconsistent with the objective medical evidence, a 28 germane reason for discounting an “other source.” Bayliss, 427 F.3d at 1218. 1 Rodriguez, M.D., dated November 19, 2019); AR 16-19 (Medical Residual Functional Capacity 2 Questionnaire from Jeffrey Fay, MSN, PMHNP, dated November 14, 2019). In its notice, the Appeals 3 Council wrote: “You submitted a Physical Medical Source Statement, completed by Joy Anne 4 Rodriguez, M.D., dated November 19, 2019 (5 pages); and a Mental Residual Functional Capacity 5 Questionnaire, completed by Jeffrey Fay, MSN, PMHNP, dated November 14, 2019 (4 pages). We 6 find this evidence does not show a reasonable probability that it would change the outcome of the 7 decision.” AR 6. Plaintiff contends that this evidence was new, material, consistent with the record, 8 and supported Plaintiff’s allegations, but that the Appeals Council failed to properly incorporate this 9 evidence into its analysis. (Doc. 18 at 13-15.) 10 Social Security regulations permit claimants to submit new and material evidence to the 11 Appeals Council, which it must consider in determining whether to review the ALJ's decision. See 12 Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). If new and material 13 evidence is submitted after the ALJ's decision, the Appeals Council shall consider such evidence “only 14 where it relates to the period on or before the date of the [ALJ] hearing decision.” See 20 C.F.R. § 15 404.970(b). The Appeals Council will overturn an ALJ's decision only when it determines, after a 16 review of the entire record, including the new and material evidence, that the decision is contrary to 17 the weight of the evidence. Id. 18 In the Ninth Circuit, where a claimant has submitted additional materials to the Appeals 19 Council in requesting review of the ALJ's decision, the district court may consider the new evidence in 20 determining whether the ALJ's decision is supported by substantial evidence “because the Appeals 21 Council addressed them in the context of denying [the claimant's] request for review.” Harman v. 22 Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) (citing Ramirez v. Shalala, 8 F.3d 1449 (9th Cir. 1993)); 23 see also Brewes, 682 F.3d at 1163 (holding that “when the Appeals Council considers new evidence in 24 deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative 25 record, which the district court must consider when reviewing the Commissioner's final decision for 26 substantial evidence.”). However, courts “do not have jurisdiction to review a decision of the Appeals 27 Council denying a request for review of an ALJ's decision, because the Appeals Council decision is a 28 non-final agency action.” Brewes, 682 F.3d at 1161. “When the Appeals Council declines review, the 1 ALJ's decision becomes the final decision of the Commissioner ... and the district court reviews that 2 decision for substantial evidence, based on the record as a whole.” Id. at 1161–62 (citation and 3 quotation marks omitted). While the Court considers the evidence submitted to the Appeals Council 4 in conjunction with the rest of the record in reviewing the ALJ's decision, “the Court cannot remand 5 based solely on the actions of the Appeals Council[.]” Berschneider v. Colvin, 2015 WL 1497835, at 6 *9 (E.D. Cal. Mar. 31, 2015). 7 Plaintiff's argument that this case should be remanded to the ALJ so that he may consider the 8 new evidence from Dr. Rodriguez and Nurse Fay is misplaced. The Appeals Council has already 9 considered this evidence and found that it does not provide a basis for changing the ALJ's decision. 10 AR 6. “The Appeals Council is not required to provide a ‘detailed rationale’ or make any 11 particularized evidentiary showing as to why it rejected a post hearing opinion.” Moreno v. Colvin, 12 2015 WL 966090, at *4 (E.D. Cal. Mar. 4, 2015) (citing Taylor v. Comm. of Soc. Sec. Admin., 659 13 F.3d 1228, 1233 (9th Cir. 2011); Warner v. Astrue, 859 F.Supp.2d 1107, 1115 (C.D. Cal. 2012); 14 Crater v. Astrue, 2012 WL 3106625, *5 (C.D. Cal. July 30, 2012)). The issue before this Court is not 15 whether the Appeals Council should have remanded the case to the ALJ with instructions to consider 16 these opinions, but rather whether the Commissioner's determination that Plaintiff is not disabled is 17 supported by substantial evidence in light of the post-hearing medical reports. Accordingly, the Court 18 considers this evidence in reviewing the administrative record. Lopez v. Colvin, 2015 WL 1469035, at 19 *5 n. 3 (E.D. Cal. Mar. 30, 2015). However, a review of the record reveals that Dr. Rodriguez’s and 20 Nurse Fay’s statements do not undermine the ALJ's decision. 21 In her November 19, 2019 Physical Medical Source Statement, Dr. Rodriguez noted that she 22 had been in contact with Plaintiff annually since 2016 and that Plaintiff’s diagnosis was “Major 23 depression” but that she would “defer to psychiatry” for the prognosis. AR 12. Dr. Rodriguez further 24 wrote that Plaintiff’s symptoms included “Depression, fatigue, nightmares” but wrote “N/A” in the 25 space to identify clinical findings and objective signs. Id. In the space to describe treatment and 26 responses or side effects, Dr. Rodriguez wrote “Followed in Mental Health,” and wrote “N/A” for 27 neurological abnormalities including Sensation, Reflex, and Motor. Id. Dr. Rodriguez marked that 28 Plaintiff’s impairments lasted or could be expected to last at least twelve months and emotional factors 1 contributed to the severity of Plaintiff’s symptoms and functional limitations. Id. She further marked 2 that Plaintiff could sit for more than two hours at one time, could stand for more than two hours at one 3 time, could sit and stand or walk for at least six hours in an eight-hour working day, did not require a 4 job that permitted shifting positions, did not need to include periods of walking around during an 5 eight-hour working day, could lift and carry 20 and 50 pounds occasionally, and could carry 10 or less 6 pounds frequently. AR 12-13. Dr. Rodriguez also marked that Plaintiff could occasionally twist, 7 stoop, and crouch; could frequently climb stairs or ladders; did not have significant limitations with 8 reaching, handling, or fingering; and that Plaintiff’s impairments were likely to produce “good days” 9 and “bad days.” AR 14. Dr. Rodrigurz wrote “defer to mental health” for questions regarding how 10 long Plaintiff would be “off task,” how well Plaintiff could tolerate work stress, how many absences 11 Plaintiff would have, and other limitations Plaintiff would have affecting his ability to work at a 12 regular job on a sustained basis. AR 14-15. She also wrote that Plaintiff would not need to take 13 unscheduled breaks during a working day. AR 15. 14 Dr. Rodriguez does not explain what evidence supports the conclusion that Plaintiff would be 15 unable to work for at least a year. In multiple instances, Dr. Rodriguez writes “defer to mental health” 16 and wrote “N/A” in the space to identify which clinical findings and objective signs support the 17 depression diagnosis or the symptoms of depression, fatigue, and nightmares. AR 12. Therefore, Dr. 18 Rodriguez’s Physical Medical Source Statement does not undermine the ALJ’s decision. See Nyman 19 v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (“Conclusory opinions by medical experts regarding the 20 ultimate question of disability are not binding on the ALJ”) (citing 20 C.F.R. § 416.927). 21 In his Mental Residual Functional Capacity Questionnaire dated November 14, 2019, Nurse 22 Jeffrey Fay, MSN, PMHNP noted that he had seen Plaintiff for a 30-minute appointment, diagnosed 23 Plaintiff with “Major Depression” and that the prognosis was “fair to good,” with the limitations 24 established at the Fresno VA Mental Health Services in September 2016. AR 17. Nurse Fay listed 25 Plaintiff’s medications as Divalproex, Venlafaxine, and Bupropion with no adverse effects. Id. He 26 further marked that Plaintiff was not precluded in remembering locations and work-like procedures, 27 understanding and remembering very short and simple instructions, understanding and remembering 28 detailed instructions, carrying out very short and simple instructions, making simple work-related 1 decisions, asking simple questions or requesting assistance, being aware of normal hazards and taking 2 appropriate precautions, and traveling in unfamiliar places or using public transportation. AR 17-18. 3 He also marked that activities Plaintiff would be precluded from performing for 15% or more of an 4 eight-hour work day included: maintaining attention and concentration for extended periods of time, 5 performing activities within a schedule, maintaining regular attendance, being punctual within 6 customary tolerances, sustaining an ordinary routine without special supervision, working in 7 coordination with or in proximity to others without being distracted by them, completing a normal 8 workday and workweek without interruptions from psychological based symptoms, performing at a 9 consistent pace without an unreasonable number and length of rest periods, interacting appropriately 10 with the general public, accepting instructions and responding appropriately to “critics from 11 supervisors,” getting along with coworkers or peers without distracting them or exhibiting behavioral 12 extremes, and maintaining socially appropriate behavior, adhering to basic standards of neatness and 13 cleanliness, responding appropriately to changes in the work setting, and setting realistic goals or 14 making plans independently of others. Id. Nurse Fay further marked that Plaintiff would be precluded 15 for five percent of an eight-hour work day from carrying out detailed instructions. AR 18. Nurse Fay 16 did not write anything in the spaces to “explain your responses” for the opined limitations. AR 17-18. 17 He wrote that Plaintiff’s behavioral condition was not noted to exacerbate Plaintiff’s experience of 18 pain or other physical symptoms, that Plaintiff would likely be absent from work five or more days per 19 month, and that Plaintiff would likely be unable to complete an eight-hour work day five or more days 20 per month. AR 19. Nurse Fay wrote that Plaintiff had “no cognitive deficits noted” in a space 21 regarding reduced intellectual functioning but marked that Plaintiff could not manage benefit 22 payments. Id. Finally, in response to the question “Is your patient a malingerer,” Nurse Fay wrote 23 “possibly.” Id. 24 As with Dr. Rodriguez’s opinion, Nurse Fay did not explain what evidence supported the more 25 extreme limitations opined. AR 17-18. These conclusory statements are insufficient to undermine the 26 ALJ’s decision. Nyman, 779 F.2d at 531. Additionally, the questionnaire appears to align with some 27 of Plaintiff’s symptoms testimony regarding fatigue, deficits with attention or concentration, absences, 28 and social limitations that the ALJ noted were unsupported by the medical evidence. AR 29-31. The 1 evidence cited by the ALJ demonstrated that despite reported mental impairments, Plaintiff’s mental 2 status exam findings were relatively normal and that Plaintiff was able to participate and contribute in 3 group therapy settings. AR 432, 695. Moreover, Nurse Fay also wrote in the questionnaire that 4 Plaintiff was “possibly” a malingerer. AR 19. Considering Nurse Fay’s questionnaire in light of the 5 administrative record, the Court finds that the ALJ’s decision remains supported. 6 While the statements from Dr. Rodriguez and Nurse Fay are relevant and material to the extent 7 the Appeals Council included them in the record, the ALJ's findings are nonetheless supported by 8 substantial evidence when this evidence is considered in the context of the entire record. Accordingly, 9 the new evidence and Appeals Council’s analysis do not provide a basis for remand. 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 CONCLUSION AND RECOMMENDATION 2 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 3 evidence in the record as a whole and is based on proper legal standards. Accordingly, IT IS 4 HEREBY RECOMMENDED as follows: 5 1. Plaintiff’s appeal from the administrative decision of the Commissioner of Social 6 Security be DENIED; 7 2. The agency’s determination to deny benefits be AFFIRMED; and 8 3. The Clerk of this Court be directed to enter judgment against Plaintiff Eduardo Felix 9 and for Defendant Leland Dudek, Acting Commissioner of Social Security. 10 These Findings and Recommendations will be submitted to the United States District Judge 11 assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being 12 served with these findings and recommendations, the parties may file written objections with the 13 Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 14 Recommendations.” Objections, if any, shall not exceed fifteen (15) pages or include exhibits. 15 Exhibits may be referenced by document and page number if already in the record before the 16 Court. Any pages filed in excess of the 15-page limit may not be considered. The parties are 17 advised that the failure to file objections within the specified time may result in the waiver of the 18 “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 19 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 IT IS SO ORDERED.

22 Dated: April 21, 2025 /s/ Barbara A. McAuliffe _ 23 UNITED STATES MAGISTRATE JUDGE

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