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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Robert R Sfetku, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-18-00028-PHX-JAT

ORDER 

 Pending before the Court is Plaintiff Robert R. Sfetku’s (“Plaintiff”) appeal from 

the Social Security Commissioner’s (the “Commissioner”) denial of his application for a 

period of disability and disability insurance benefits under Title II of the Social Security 

Act, 42 U.S.C. §§ 401 et seq. (Doc. 1 at 1–4).1

 This matter has been fully briefed by the 

parties.2

 Although Plaintiff requested oral argument, the Court denies this request 

because it would not materially assist the Court in reaching an informed decision, and 

because Plaintiff failed to follow the Court’s procedure for requesting oral argument set 

 

1

 The Court has jurisdiction pursuant to 42 U.S.C. § 405(g), which provides that an individual may obtain review of any final decision of the Commissioner of Social 

Security “by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.” (emphasis added). Although the Appeals Council denied Plaintiff’s request for review of the ALJ’s June 9, 2016 decision on October 6, 2017, (Doc. 15-3 at 

9–12), Plaintiff claims he did not receive notice of the ALJ’s final decision until 

December 18, 2017, (Doc. 1 at 3, 5–14). Consequently, the Appeals Council granted Plaintiff’s request for additional time to commence a civil action by extending the time within which Plaintiff must file through January 4, 2018, the date Plaintiff filed his civil 

action with the District Court. (Doc. 15-3 at 2–3, 5). Defendant admits that jurisdiction is proper under 42 U.S.C. § 405(g). (Doc. 14 at 2). 

2

 (See Doc. 18; Doc. 20; Doc. 21). 
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forth in the Social Security Scheduling Order (Doc. 5).3 Accordingly, the Court now rules 

on Plaintiff’s appeal. 

I. BACKGROUND 

 The parties are familiar with the background information in this case, and it is 

summarized in Administrative Law Judge (“ALJ”) Sheldon P. Zisook’s June 9, 2016 

decision. (See Doc 15-3 at 27–39). Accordingly, the Court will reference the background 

only as necessary to the analysis below. 

II. LEGAL STANDARD 

 The ALJ’s decision to deny disability benefits may be overturned “only when the 

ALJ’s findings are based on legal error or not supported by substantial evidence in the 

record.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). 

“‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance, 

i.e., such relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing 

Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 

 “The inquiry here is whether the record, read as a whole, yields such evidence as 

would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. 

Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). “Where evidence is 

susceptible of more than one rational interpretation, it is the ALJ’s conclusion which 

must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences 

logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is 

because “[t]he trier of fact and not the reviewing court must resolve conflicts in the 

 

3

 The Social Security Scheduling Order states that “[i]f either party desires oral argument, it must be requested in the manner prescribed by Rule 7.2(f) of the Local Rules of Civil Procedure upon the filing of the opening brief.” (Doc. 5 at 3). Despite that Order’s directions, Plaintiff requested oral argument in his Reply Brief, rather than in his Opening Brief. (Doc. 21 at 1). Further, Plaintiff offered no reasons in support of his request for oral argument. (See Doc. 21). After reviewing the briefs and the record on appeal, the Court finds nothing novel or complex in the issues as argued in the briefs or revealed by the record that would necessitate granting Plaintiff’s request. For these reasons, oral 

argument is not necessary to the Court’s resolution of the issues raised in Plaintiff’s 

appeal. See LR Civ. 7.2(f) (“The Court may decide motions without oral argument.”). 
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evidence, and if the evidence can support either outcome, the court may not substitute its 

judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); 

see Benton, 331 F.3d at 1035 (“If the evidence can support either outcome, the 

Commissioner’s decision must be upheld.”).

 The ALJ is responsible for resolving conflicts in medical testimony, determining 

credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 

Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports 

the ALJ’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 498, 501 

(9th Cir. 1989). On the other hand, the Court “may not affirm simply by isolating a 

specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 

2007) (quotation omitted). 

 Furthermore, the Court is not charged with reviewing the evidence and making its 

own judgment as to whether Plaintiff is or is not disabled. Rather, it is a “fundamental 

rule of administrative law” that a reviewing court, in dealing with a judgement which an 

administrative agency alone is authorized to make, may only make its decision based 

upon evidence discussed by the agency. Sec. & Exch. Comm’n v. Chenery Corp., 332 

U.S. 194, 196 (1947). Thus, the Court’s inquiry is constrained to the reasons asserted by 

the ALJ and the evidence relied upon in support of those reasons. See Connett v. 

Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Frank v. Schultz, 808 F.3d 762, 764 (9th 

Cir. 2015). Similarly, when challenging an ALJ’s decision, “issues which are not 

specifically and distinctly argued and raised in a party’s opening brief are waived.” Arpin 

v. Santa Clara Valley Trans. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (citing Barnett v. 

U.S. Air, Inc., 228 F.3d 1105, 1110 n. 1 (9th Cir. 2000) (en banc), vacated and remanded 

on other grounds, 535 U.S. 391 (2002)); see also Bray v. Comm’r of Soc. Sec. Admin., 

554 F.3d 1219, 1226 n. 7 (9th Cir. 2009) (applying the principle to Social Security 

appeals). Accordingly, the Court “will not manufacture arguments for an appellant.” 

Arpin, 261 F.3d at 919 (citation omitted). 
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A. Definition of a Disability 

 A claimant can qualify for Social Security disability benefits only if he can show 

that, among other things, he is disabled. 42 U.S.C. § 423(a)(1)(E). The Social Security 

Act defines “disability” as the “inability to engage in any substantial gainful activity by 

reason of any medically determinable physical or mental impairment which can be 

expected to result in death or which has lasted or can be expected to last for a continuous 

period of not less than 12 months.” Id. § 423(d)(1)(A). 

 A person is disabled only if his “physical or mental impairment or impairments are 

of such severity that he is not only unable to do his previous work but cannot, considering 

his age, education, and work experience, engage in any other kind of substantial gainful 

work which exists in the national economy.” Id. § 423(d)(2)(A). 

B. The Five-Step Evaluation Process 

 The Social Security regulations set forth a five-step sequential process for 

evaluating disability claims. 20 C.F.R. § 404.1520(a)(4); see also Reddick v. Chater, 157 

F.3d 715, 721 (9th Cir. 1998). A finding of “not disabled” at any step in the sequential 

process will end the inquiry. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden 

of proof at the first four steps, but the burden shifts to the ALJ at the final step. Reddick, 

157 F.3d at 721. The five steps are as follows: 

 First, the ALJ determines whether the claimant is engaged in “substantial gainful 

activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. 

 At the second step, the ALJ next considers whether the claimant has a “severe 

medically determinable physical or mental impairment.” Id. § 404.1520(a)(4)(ii). If the 

claimant does not have a severe impairment, then the claimant is not disabled. Id. § 

404.1520(c). A “severe impairment” is one that “significantly limits [the claimant’s] 

physical or mental ability to do basic work activities.” Id. Basic work activities are the 

“abilities and aptitudes to do most jobs,” such as lifting, carrying, reaching, 

understanding, carrying out and remembering simple instructions, responding 

appropriately to co-workers, and dealing with changes in routine.” Id. § 404.1521(b). 
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Additionally, unless the claimant’s impairment is expected to result in death, “it must 

have lasted or must be expected to last for a continuous period of at least 12 months” for 

the claimant to be found disabled. Id. § 404.1509. 

 Third, having found a severe impairment, the ALJ then considers the severity of 

the claimant’s impairment. Id. § 404.1520(a)(4)(iii). This requires the ALJ to determine if 

the claimant’s impairment “meets or equals” one of the impairments listed in the 

regulations. Id. If so, then the ALJ will find that the claimant is disabled. Id. If the 

claimant’s impairment does not meet or equal a listed impairment, then the ALJ will 

assess the claimant’s “residual functional capacity based on all the relevant medical and 

other evidence in [the claimant’s] case record.” Id. § 404.1520(e). In assessing the 

claimant’s residual functional capacity (“RFC”), the ALJ will consider the claimant’s 

“impairment(s), and any related symptoms, such as pain, [that] may cause physical and 

mental limitations that affect what [the claimant] can do in a work setting.” 

Id. § 404.1545(a)(1). A claimant’s RFC is the most the claimant can still do despite the 

effects of all the claimant’s medically determinable impairments, including those that are 

not severe. Id. § 404.1545(a)(1–2). 

 At step four, the ALJ determines whether, despite his impairments, the claimant 

can still perform “past relevant work.” Id. § 404.1520(a)(4)(iv). To do this, the ALJ 

compares the claimant’s residual function capacity with the physical and mental demands 

of the claimant’s past relevant work. Id. § 404.1520(f). If the claimant can still perform 

his past relevant work, the ALJ will find that the claimant is not disabled. 

Id. § 1520(a)(iv). Otherwise, the ALJ proceeds to the final step. 

 At the fifth and final step, the ALJ considers whether the claimant “can make an 

adjustment to other work” that exists in the national economy. Id. § 404.1520(a)(4)(v). In 

making this determination, the ALJ considers the claimant’s RFC, age, education, and 

work experience. Id. § 404.1520(g)(1). If the ALJ finds that the claimant can make an 

adjustment to other work, then the claimant is not disabled. Id. § 404.1520(a)(4)(v).

However, if the ALJ finds that the claimant cannot make an adjustment to other work, 
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then the claimant is disabled. Id. 

 In evaluating the claimant’s disability under this five-step process, the ALJ must 

consider all evidence in the case record. Id. § 404.1520(a)(3). This includes medical 

opinions, records, self-reported symptoms, and third-party reporting. See id. §§ 404.1527; 

404.1529. 

 C. The ALJ’s Evaluation under the Five Step Process 

 Prior to beginning the sequential evaluation process, the ALJ noted that Plaintiff 

previously filed a Title II application for a period of disability and disability insurance 

benefits, and received a final decision dated September 14, 2012 stating that Plaintiff was 

disabled from February 7, 2010 through June 21, 2012. (Doc. 15-3 at 27). This 

September 14, 2012 decision also indicated that Plaintiff’s period of disability ended on 

June 22, 2012, so Plaintiff was able to return to full-time work at a light exertional level 

as of that date. (Id.). Accordingly, the ALJ stated that pursuant to Chavez v. Bowen, 844 

F.2d 691 (9th Cir. 1988), the first ALJ’s September 14, 2012 final decision finding that 

Plaintiff was not disabled as of June 22, 2012 gave rise to a “presumption of continuing 

nondisability” which Plaintiff could only overcome by proving “‘changed circumstances’ 

indicating a greater disability.” (Doc. 15-3 at 27 (citing Chavez, 844 F.2d at 693)). 

However, because Plaintiff proved changed circumstances indicating a greater disability 

due to the fact that he had changed age category to closely approaching advanced age,4

the ALJ determined that the presumption of continuing nondisability did not apply. (Id.). 

Further, the ALJ pointed out that the first ALJ’s findings concerning Plaintiff’s residual 

functional capacity (“RFC”), education, and work experience were entitled to res judicata 

consideration in the absence of “new and material evidence” on those issues. (Id. (citing 

Chavez, 844 F.2d at 693–94)). Deciding that Plaintiff’s new evidence regarding his 

impairments was not material, the ALJ adopted the first ALJ’s findings as to Plaintiff’s 

severe impairments and RFC. (Id. at 27–28). 

 

4 See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995) (“[A] change in the claimant’s age category, as defined in the Medical–Vocational Guidelines, constitutes a changed 

circumstance that precludes the application of res judicata.”). 
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 At step one of the sequential evaluation process, the ALJ found that Plaintiff had 

not engaged in substantial gainful activity since September 15, 2013, the alleged onset 

date. (Id. at 30). In step two, the ALJ ascertained that Plaintiff had the following severe 

impairments: “degenerative disc disease, myocardial infarction, and history of 

implantable cardioverter-defibrillator.” (Id.). At this step, the ALJ also found that 

Plaintiff’s obesity, irritable bowel syndrome, bilateral shoulder pain, unstable angina, 

abdominal pain, depression, and anxiety were non-severe. (Id. at 30–34). Under the third 

step, the ALJ determined that the severity of Plaintiff’s impairments, singly and in 

combination, did not meet or medically equal the severity of the impairments listed in the 

Social Security Regulations. (Id. at 34). 

Before moving on to step four, the ALJ conducted an RFC determination after 

consideration of the entire record. (Id.). The ALJ determined that Plaintiff had “the 

residual functional capacity to perform the full range of light work” as defined in 

20 C.F.R. § 404.1567(b). (Id.). At step four, the ALJ found that Plaintiff was unable to 

perform any past relevant work. (Id. at 38). Finally, the ALJ concluded at step five that 

based on Plaintiff’s RFC, age, education, and work experience, Plaintiff could perform a 

significant number of jobs existing the national economy. (Id.). Consequently, the ALJ 

concluded that Plaintiff had not been under a disability under the Social Security Act 

from September 15, 2013 through June 9, 2016, the date of the ALJ’s decision. (Id. at 

39). 

III. ANALYIS 

 This matter is solely an appeal of ALJ Sheldon P. Zisook’s June 9, 2016 decision 

denying Plaintiff’s February 27, 2014 application for a period of disability and disability 

insurance benefits. Therefore, the Court will not consider any argument regarding ALJ 

Larry E. Johnson’s September 14, 2012 decision finding Plaintiff disabled from 

February 7, 2010 through June 21, 2012. To this extent, the Court disregards any 

arguments made by Plaintiff contesting ALJ Johnson’s 2012 decision. (See Doc. 18 at 4–

5). 
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Moreover, the Court recognizes that “a document filed pro se is to be liberally 

construed, and a pro se complaint, however inartfully pleaded, must be held to less 

stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 

U.S. 89, 94 (2007) (internal quotations and citations omitted). Nevertheless, the Court 

will not address issues that are not argued with any specificity. Carmickle v. Comm’r, 

Soc. Sec. Admin., 533 F.3d 1155, 1161 n. 2 (9th Cir. 2008). A general allegation that the 

ALJ committed legal error, or that the ALJ’s determination is not supported by 

substantial evidence, is insufficient to raise that issue for review. See Greenwood v. FAA, 

28 F.3d 971, 977 (9th Cir. 1994) (internal citation omitted) (“We review only issues 

which are argued specifically and distinctly in a party’s opening brief. We will not 

manufacture arguments for an appellant, and a bare assertion does not preserve a 

claim[.]”). 

 After thorough review of Plaintiff’s Complaint (Doc. 1), Opening Brief (Doc. 18), 

and Reply (Doc. 21), the Court gathers that Plaintiff believes the ALJ’s June 9, 2016 

denial of his application for a period of disability and disability insurance benefits was 

erroneous for the following reasons: (1) the ALJ referred to two rescinded Social Security 

Rulings (“SSR”) in making his decision rather than following SSR 16-3p; (2) the ALJ 

improperly weighed the medical opinion evidence; (3) the ALJ improperly placed him in 

the “light work” category rather than the “less than sedentary work” category; (4) the 

ALJ improperly based his decision on his own medical history; and (5) Plaintiff’s prior 

attorney failed to provide all of Plaintiff’s evidence to Social Security. However, for the 

reasons set forth below, the Court finds that the ALJ’s decision was supported by 

substantial evidence and, accordingly, affirms. 

A. Whether the ALJ Erred in Citing SSRs 96-3p and 96-4p Instead of 

SSR 16-3p 

Plaintiff claims that the ALJ erred in referring to SSRs 96-3p and 96-4p, which 

have since been rescinded, rather than following SSR 16-3p. (Doc. 18 at 3). Plaintiff’s 

argument fails. Although SSR 16-3p became effective in March 2016, that ruling did not 
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rescind either SSR 96-3p or 96-4p; in fact, SSR 16-3p even cross references SSR 96-3p. 

SSR 16-3p, 81 FR 14166-01, *14166, *14172 (Mar. 16, 2016). Rather, SSRs 96-3p and 

96-4p were not rescinded until June 14, 2018, at which time the Social Security 

Administration determined that these SSRs were “unnecessarily duplicative” of SSR 16-

3p. Rescission of SSRs 96-3p and 96-4p, 2018 WL 3461816, at *1 (June 14, 2018) (“We 

will apply this rescission notice on June 14, 2018.”). Therefore, on June 9, 2016, the date 

of the ALJ’s decision, SSRs 96-3p and 96-4p were still in effect. See id. Accordingly, the 

ALJ did not err in citing SSRs 96-3p and 96-4p in his decision. 

The Court is also unable to see how the ALJ’s decision fails to comply with SSR 

16-3p. Plaintiff argues that the ALJ “did NOT take into consideration the statements, 

[and] affidavit’s [sic] written by the plaintiff, witnesses, and doctors” despite SSR 16-3p 

which, according to Plaintiff, “states that the adjudicator must take into consideration” 

non-medical sources, such as family and friends. (Doc. 18 at 3) (emphasis in original).5

Nevertheless, there is no indication that the ALJ failed to consider statements made by 

Plaintiff, his family and friends, or his doctors. In fact, the ALJ’s decision is replete with 

references to Plaintiff’s testimony, subjective complaints, and medical records. (See Doc. 

15-3 at 27–39). Further, the ALJ even stated that he “considered the third party 

statements provided by Janine Doffing, the claimant’s girlfriend.” (Id. at 37–38).6

 

5

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we may draw inferences and conclusions about an individual’s statements that would be 

helpful to us in assessing the intensity, persistence, and limiting effects of symptoms.” SSR 16-3p, 81 FR 14166-01, at *14170 (emphasis added). If the ALJ “cannot make a disability determination or decision that is fully favorable based solely on objective medical evidence,” then the ALJ will “consider other evidence in the record in reaching a conclusion about the intensity, persistence, and limiting effects of an individual’s symptoms[,]” including “statements from the individual, medical sources, and any other sources that might have information about the individual’s symptoms[.]” Id. at *14169. 

6

 Plaintiff submitted two third party affidavits completed by his girlfriend and his mother to the Appeals Council, which made that evidence part of the administrative record. (Doc. 15-3 at 13; Doc. 15-7 at 85–92); Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 

1162–63 (9th Cir. 2012). Accordingly, the Court must evaluate this evidence when 

determining whether substantial evidence supports the ALJ’s decision. Id. The Court 

finds that these affidavits do not divest the ALJ’s decision of substantial evidence. 

Similar to Plaintiff’s own testimony, these affidavits describe Plaintiff’s symptoms, activity limitations, and medical issues. (See Doc. 15-7 at 85–92). However, “as the ALJ 

explained in discounting Plaintiff’s subjective complaints, the medical records showed 

that he functioned better than he alleged and he performed activities that stood at odds 
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Moreover, SSR 16-3p directs the ALJ to consider whether an individual’s symptoms and 

related limitations are consistent with the evidence in his record. SSR 16-3p, 81 FR 

14166-01, *14170. In accordance with this, the ALJ considered Plaintiff’s medical 

records and activity level when assessing his subjective complaints. (See, e.g., Doc. 15-3 

at 35 (“[T]he claimant’s statements concerning the intensity, persistence and limiting 

effects of [his] symptoms are not entirely consistent with the medical evidence and other 

evidence in the record for the reasons explained in this decision.”). 

In his Reply, Plaintiff points to various pages of the certified administrative record 

which he believes were overlooked by the ALJ and show that SSR 16-3p “was not only 

NOT followed, but essentially ignored.” (Doc. 21 at 4). Although Plaintiff seems to 

believe that the ALJ’s failure to reference each page of Plaintiff’s medical records means 

that the ALJ ignored those records, (id.), that is not the case. Plaintiff first claims that the 

ALJ failed to consider pages 511 through 521 of the certified administrative record, (id.

(citing Doc. 15-8 at 137–147)), which are pain assessment records completed by Plaintiff 

from the Phoenix Neurological Institute, (Doc. 15-2 at 3; Doc. 15-8 at 137–147). 

Nevertheless, these records were marked as Exhibit B-7F, (Doc. 15-2 at 3), and cited 

frequently by the ALJ in his decision. (See Doc. 15-3 at 30–33, 35, 37 (citing Exhibit B7F)). Likewise, Plaintiff contends that the ALJ failed to consider pages 540, 543, 545, 

549, 551, 559, and 561 of the certified administrative record, (Doc. 21 at 4–5 (citing Doc. 

15-8 at 166, 169, 171, 175, 177, 185, 187)), which are various records which Plaintiff 

believes corroborate his complaints of pain. However, these records were marked as 

Exhibit B-11F, (Doc. 15-2 at 3), and cited multiple times by the ALJ in his decision, (see

 

with his claim of disability.” (Doc. 20 at 10 (citing Doc. 15-3 at 35–37)). Where an ALJ 

gives germane reasons for rejecting a claimant’s testimony, those reasons are equally germane to rejecting similar testimony by a lay witness. Valentine v. Comm’r Soc. Sec. 

Admin., 574 F.3d 685, 694 (9th Cir. 2009). This is true even where the claimant submits a 

lay witness opinion to the Appeals Council for the first time. See Johnson v. Berryhill, 708 F. App’x 345, 346 (9th Cir. 2017) (holding that the lay witness evidence submitted to and considered by the Appeals Council did not undermine the ALJ’s decision because the 

lay witness statement was similar to the claimant’s testimony, which the ALJ properly discounted, and because an ALJ “may reject the lay witness testimony for the same reasons he rejected the claimant’s testimony”). 
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Doc. 15-3 at 31, 35, 37 (citing Exhibit B-11F)). Moreover, the ALJ even cites Exhibits B7F and B-11F in support of his statement that “[w]hile the claimant alleged that he 

experienced constant disabling pain, review of available evidence of record demonstrated 

that the claimant was routinely assessed to be in no apparent distress.” (Id. at 37).7

Similarly, Plaintiff alleges that the ALJ failed to consider pages 579 and 588 of the 

record, which are selected medical records from his visits with a cardiologist. (Doc. 21 at 

5 (citing Doc. 15-8 at 205, 214)). Nonetheless, these records were marked as Exhibit B12F, (Doc. 15-2 at 3), and cited throughout the ALJ’s decision, as well, (see Doc. 15-3 at 

31–33, 36–37 (citing Exhibit B-12F)). See also id. at 37 (“While the claimant testified 

that his cardiovascular symptoms got worse, and treatment records did show that the 

claimant complained of symptoms of chest pain, he reported that the symptoms did not 

include chest pressure, shortness of breath, jaw pain, orthopnea, paroxysmal nocturnal 

dyspnea, dyspnea with exertion or pedal enema.”) (citing Exhibit B-12F/7, which refers 

to page 7 of Exhibit B-12F and which corresponds with page 579 of the certified 

administrative record, located at Doc. 15-8 at 205). 

Finally, Plaintiff claims that the ALJ did not consider pages 600, 603, 606, 609, 

612, 615, 619, 623, 627, and 630 of the record, which are selected progress and medical 

notes from Empact Suicide Prevention Center referencing Plaintiff’s subjective 

complaints. (Doc. 21 at 5 (citing Doc. 15-9 at 2, 5, 8, 11, 14, 17, 21, 25, 29, 32)). Again, 

these records were marked as Exhibits B-13F and B-14F, (Doc. 15-2 at 3), and referred to 

multiple times in the ALJ’s decision, (see Doc. 15-3 at 33–34). For these reasons, the 

Court is unable to find that that the ALJ “ignored” the various records cited by Plaintiff, 

or failed to comply with SSR 16-3p. 

B. Whether the ALJ Improperly Weighed the Medical Opinion Evidence 

Plaintiff argues that the ALJ erred in assigning “little weight” to the opinions of 

Dr. Gaitonde and Mr. Triplett, PA-C, two of Plaintiff’s treating sources, while assigning 

 

7

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“great weight” to the opinions of other physicians. (Doc. 18 at 4). 

In social security cases, there are three types of medical opinions: “those from 

treating physicians, examining physicians, and non-examining physicians.” Valentine v. 

Comm’r, 574 F.3d 685, 692 (9th Cir. 2009) (citation omitted). “The medical opinion of a 

claimant’s treating physician is given ‘controlling weight’ so long as it ‘is well-supported 

by medically acceptable clinical and laboratory diagnostic techniques and is not 

inconsistent with the other substantial evidence in [the claimant’s] case record.’” Trevizo 

v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)). 

ALJs generally give more weight to medical opinions from treating physicians “since 

these sources are likely to be the medical professionals most able to provide a detailed, 

longitudinal picture of [the claimant’s] medical impairment(s) and may bring a unique 

perspective to the medical evidence that cannot be obtained from the objective medical 

findings alone or from reports of individual examinations . . . .” 20 C.F.R. §§ 

404.1527(c)(2), 416.927(c)(2). Thus, the opinion of a treating source is generally given 

more weight than the opinion of a doctor who does not treat the claimant. Lester v. 

Chater, 81 F.3d 821, 830 (9th Cir. 1995). Should the ALJ decide not to give the treating 

physician’s medical opinion controlling weight, the ALJ must weigh it according to 

factors such as the nature, extent, and length of the physician-patient relationship, the 

frequency of evaluations, whether the physician’s opinion is supported by and consistent 

with the record, and the specialization of the physician. Trevizo, 871 F.3d at 676; 

see 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). 

 Although a “treating physician’s opinion is entitled to ‘substantial weight,’” Bray, 

554 F.3d at 1228 (citation omitted), it is “not binding on an ALJ with respect to the 

existence of an impairment or the ultimate determination of disability.” Batson, 359 F.3d 

at 1195. Rather, an ALJ may reject the uncontradicted opinion of a treating physician by 

stating “clear and convincing reasons that are supported by substantial evidence.” Ryan v. 

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). “If a 

treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an 
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ALJ may only reject it by providing specific and legitimate reasons that are supported by 

substantial evidence.” Id. (citation omitted). However, “[t]he ALJ need not accept the 

opinion of any physician, including a treating physician, if that opinion is brief, 

conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart, 278 

F.3d 947, 957 (9th Cir. 2002). 

1. Substantial Evidence Supports the ALJ’s Assignment of “Little 

Weight” to the Opinions of Dr. Gaitonde and Mr. Triplett 

 Plaintiff contends that the ALJ erred by assigning “little weight” to the letter 

provided by Dr. Gaitonde, (Doc. 18 at 4), one of Plaintiff’s treating physicians “who 

followed the claimant secondary to his history of cardiac arrest as well as ICD 

implantation.” (Doc. 15-3 at 37; Doc. 15-8 at 148). In this letter, Dr. Gaitonde stated that 

due to Plaintiff’s history of coronary artery disease, cardiomyopathy, and cardiac arrest, 

Plaintiff “would qualify for disability due to his overall limited functional capacity.” 

(Doc. 15-8 at 148). 

Despite Plaintiff’s contention, the ALJ offered “specific and legitimate reasons” 

supported by substantial evidence for giving little weight to Dr. Gaitonde’s opinion. 

Ryan, 528 F.3d at 1198. First, the ALJ determined that “Dr. Gaitonde’s assessment[] with 

regard to the claimant’s functional capacity was extremely vague[.]” (Doc. 15-3 at 37). 

When evaluating conflicting medical opinions, “an ALJ need not accept a treating 

physician’s opinion that is conclusory and brief and unsupported by clinical findings.” 

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (citing Matney v. Sullivan, 

981 F.2d 1016, 1019 (9th Cir. 1992)). Here, Dr. Gaitonde’s opinion is merely five 

sentences long, does not cite any records, and concludes that Plaintiff “would qualify for 

disability due to his overall limited functional capacity” without specifying what Plaintiff 

can or cannot do. (Doc. 15-8 at 148). Not only does Dr. Gaitonde’s letter fail to shed any 

light on what Plaintiff’s “limited functional capacity” entails, but the ultimate 

determination of disability is “an issue reserved to the Commissioner.” SSR 96-8p, 1996 

WL 374184, at *7 n. 8 (July 2, 1996). 
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The ALJ also found that “Dr. Gaitonde’s assessment[] with regard to the 

claimant’s functional capacity was . . . inconsistent with objective medical and clinical 

findings, the claimant’s reports and denials of symptoms, and the claimant’s reported 

activities[.]” (Doc. 15-3 at 37). In support of this, the ALJ referred to a record from 

Plaintiff’s May 8, 2014 visit with Dr. Lababidi, one of Plaintiff’s treating physicians at 

Gilbert Cardiology who saw Plaintiff at least nine times from 2013 through 2016. (Id.

(citing Doc. 15-8 at 210); see also Doc. 15-8 at 199, 202, 205, 208, 211; Doc. 15-9 at 

112, 115, 118, 123). In contrast to Dr. Gaitonde’s opinion that Plaintiff had “overall 

limited functional capacity” which rendered him disabled, Dr. Lababidi stated in his 

assessment that Plaintiff was “currently able to complete all activities and work without 

symptoms or limitations.” (Doc. 15-3 at 37; Doc. 15-8 at 210). 

The ALJ also showed that Dr. Gaitonde’s opinion was inconsistent with Plaintiff’s 

reports and denials of symptoms as well as reported activities by referring to Plaintiff’s 

treatment record from a March 19, 2014 visit with Dr. Lababidi. (See Doc. 15-3 at 37 

(citing Exhibit B-12F/7, which refers to Doc. 15-8 at 205)). The ALJ stated that “[w]hile 

the claimant testified that his cardiovascular symptoms got worse, and treatment records 

did show that the claimant complained of symptoms of chest pain, he reported that the 

symptoms did not include chest pressure, shortness of breath, jaw pain, orthopnea, 

paroxysmal nocturnal dyspnea, dyspnea with exertion, or pedal edema.” (Id.). In fact, the 

ALJ noted that a “review of available evidence of record showed that the claimant 

routinely denied chest pain or shortness of breath in his review of symptoms.” (Id. at 31 

(citing Exhibits B-1F, B-2F, B-3F, B-5F, B-7F, and B-11F)). The ALJ’s review of 

Plaintiff’s treatment records demonstrated that Plaintiff reported that his heart symptoms 

were “mild,” and only occurred “occasionally,” with episodes lasting “for minutes.” 

(Doc. 15-8 at 205; Doc. 15-3 at 37; see also id. at 208 (indicating that at a May 8, 2014 

visit, Plaintiff told Dr. Lababidi that Plaintiff only experienced “dull” and “mild” pain 

about once per week, with cardiac treatment resulting in “good symptom control”)). 

Plaintiff also reported that his symptoms were “not exacerbated by walking, stress, 
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exercise, cold weather, or eating.” (Doc. 15-8 at 205, 208). 

Further, the ALJ noted that Plaintiff’s treatment records from a May 8, 2014 visit 

at Gilbert Cardiology indicated that Plaintiff himself “reported that he was currently able 

to do activities of daily living without limitations and able to work without limitations,” 

and that his infrequent chest discomfort was “unrelated to exertion.” (Doc. 15-3 at 31; 

Doc. 15-8 at 208). In fact, after reviewing Plaintiff’s Function Report, the ALJ found that 

Plaintiff “was able to perform activities of daily living independently,” such as providing 

care for his young son, cooking for him, taking him to school, picking him up, helping 

him shower, and putting him to bed. (Doc. 15-3 at 30 (citing Doc. 15-7 at 49–57), 36). 

Just as the ALJ concluded, Plaintiff’s own reports and denials of symptoms are in sharp 

contrast to Dr. Gaitonde’s opinion that Plaintiff had “overall limited functional capacity.” 

(Id. at 37). For these reasons, the Court finds that the ALJ offered “specific and legitimate 

reasons” supported by substantial evidence for giving little weight to Dr. Gaitonde’s 

opinion. Ryan, 528 F.3d at 1198. 

 The ALJ also offered “specific and legitimate reasons” supported by substantial 

evidence for discounting the opinion of Mr. Triplett. Ryan, 528 F.3d at 1198. 

Mr. Triplett, a PA who treated Plaintiff at the Phoenix Neurological & Pain Institute, 

wrote a brief letter in August 2014 which mainly repeats what Plaintiff told Mr. Triplett 

about his pain symptoms. (See Doc. 15-8 at 149 (stating that Plaintiff “relates” that 

narcotics “help him with his activities of daily living” and that Plaintiff “endorses” his 

inability to do sedentary work)). However, the ALJ noted in his decision that Plaintiff’s 

“allegations regarding the frequency and intensity of his reported disabling pain were 

inconsistent with observations and reports provided by treating and examining sources.” 

(Doc. 15-3 at 37). While Plaintiff “alleged that he experienced constant disabling pain, 

review of available evidence of record demonstrated that the claimant was routinely 

assessed to be in no apparent distress.” (Id. (citing Exhibit B-5F/2, B-5F/7, B-6F/6, B-7F, 

B-11F, B-12F, and B-17F)).8

 Given that Plaintiff’s subjective complaints and denials of 

 

8

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symptoms were at odds with the medical evidence and his own reported activities, the 

ALJ assigned little weight to Mr. Triplett’s opinion because it “simply reiterated the 

claimant’s subjective functional limitations.” (Doc. 15-3 at 37). An “ALJ may reject a 

treating physician’s opinion if it is based ‘to a large extent’ on a claimant’s self-reports 

that have been properly discounted as incredible[,]” Tommasetti v. Astrue, 533 F.3d 1035, 

1041 (9th Cir. 2008), as they have been here. (Doc. 15-3 at 37). 

 The ALJ also discounted Mr. Triplett’s opinion letter because it “provided little 

guidance with regard to the claimant’s assessed functional capacity[.]” (Id.). 

Mr. Triplett’s letter states that it is “intended to be a general summary of [Plaintiff’s] state 

of affairs vis a vis his pain complaint.” (Doc. 15-8 at 149). As Mr. Triplett seems to 

himself acknowledge when he recommends another practice that might be able to provide 

“more specific functional capacity recommendations,” (id.), his letter lacks detailed, 

objective insight into Plaintiff’s functional capacity based on objective medical findings. 

Accordingly, substantial evidence supports the ALJ’s discounting of Mr. Triplett’s 

opinion because Mr. Triplett’s letter does not show how Plaintiff’s alleged pain 

symptoms “translate into specific functional deficits which preclude work activity.” 

Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (upholding 

ALJ’s rejection of a treating psychologist’s opinion where that opinion failed to show 

how the claimant’s symptoms precluded him from working). Consequently, the Court 

finds that the ALJ offered “specific and legitimate reasons” supported by substantial 

evidence for giving little weight to Mr. Triplett’s opinion. Ryan, 528 F.3d at 1198. 

2. Substantial Evidence Supports the ALJ’s Assignment of “Great 

Weight” to the Opinions of Drs. Novak, Wright, Penner, and Wavak 

Plaintiff also claims that the ALJ erred by assigning “great weight” to the “nontreating medical source[s] that happen[] to work for the state agency,” although he cites 

no evidence or makes no argument in support of this allegation. (Doc. 18 at 4). 

Nevertheless, the Court finds that substantial evidence supports the ALJ’s assignment of 

“great weight” to the opinions of Drs. Novak, Wright, Penner, and Wavak. After 
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reviewing Plaintiff’s medical records, these consulting physicians concluded that 

Plaintiff’s mental impairments remained non-severe and that he could perform light 

exertional work. (Doc. 15-4 at 28–31, 46–50). Acknowledging that these consultants 

were non-treating and non-examining sources, the ALJ supported his assignment of great 

weight to their opinions because the consultants “had an opportunity to review newly 

admitted evidence available at the time that their opinions were made.” (Doc. 15-3 at 37). 

Further, the ALJ stated that these consultants’ “opinions were consistent with the cited 

records and supported by objective medical and clinical findings, the claimant’s reported 

activities, and examination results.” (Id.). 

“Generally, the more consistent a medical opinion is with the record as a whole, 

the more weight [the ALJ] will give to that medical opinion.” 20 C.F.R. § 404.1527(c)(4). 

Here, the consulting physicians’ opinions comported with the overall medical record and 

with Plaintiff’s reported activity level. For example, these physicians rendered 

conclusions as to Plaintiff’s heart conditions consistent with the record and with the 

ALJ’s own findings from the record. Compare (Doc. 15-4 at 28, 31, 46, 49–50), with

(Doc. 15-8 at 208, 210–11), and (Doc. 15-3 at 31, 36). The consulting physicians also 

rendered conclusions consonant with the medical records and the ALJ’s findings as to 

Plaintiff’s irritable bowel syndrome. Compare (Doc. 15-4 at 31, 50), with (Doc. 15-8 at 

114, 117, 166, 173, 175, 177, 179, 182; Doc. 15-9 at 102, 108, 110), and (Doc. 15-3 at 

31). Further, consistent with Plaintiff’s reported activities and the ALJ’s findings, these 

physicians also concluded that Plaintiff had no limitations performing daily activities. 

Compare (Doc. 15-4 at 28–29, 30–31, 46, 49–50), with (Doc. 15-7 at 49–57), and (Doc. 

15-3 at 30). 

As the ALJ found the opinions of Drs. Novak, Wright, Penner, and Wavak to be 

consistent with the record as a whole, the ALJ was permitted to assign great weight to 

these opinions. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 

1999) (citation omitted) (“Opinions of a nonexamining, testifying medical advisor may 

serve as substantial evidence when they are supported by other evidence in the record and 
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are consistent with it.”); Ruiz v. Colvin, 638 F. App’x 604, 606 (9th Cir. 2016) (holding 

that the ALJ did not err in giving the greatest weight to the opinions of the nonexamining state agency medical consultants because the ALJ found the consultants’ 

opinions “consistent with the greater medical record, progress and treating notes, and [the 

claimant’s] description of her daily activities”) (citing SSR 96-6p, 1996 WL 374180, at 

*3 (July 2, 1996) (“In appropriate circumstances, opinions from State agency medical and 

psychological consultants and other program physicians and psychologists may be 

entitled to greater weight than the opinions of treating or examining sources.”)). 

In sum, the Court finds that the ALJ properly assessed and weighed the medical 

opinion evidence. 

C. Whether the ALJ Improperly Placed Plaintiff in the “Light Work” 

Category 

According to the Social Security Regulations, “[l]ight work involves lifting no 

more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 

10 pounds.” 20 C.F.R. § 404.1567(b). Further, jobs in the light work category may 

require “a good deal of walking or standing[.]” Id. If someone can do light work, the ALJ 

also determines that he or she can do sedentary work, “unless there are additional limiting 

factors such as loss of fine dexterity or inability to sit for long periods of time.” Id. In 

contrast, “[s]edentary work involves lifting no more than 10 pounds at a time and 

occasionally lifting or carrying articles like docket files, ledgers, and small tools.” 

Id. § 404.1567(a). 

Plaintiff believes the ALJ erred by placing him in the “light work” category rather 

than in the “less than sedentary work” category because his cardiologist restricted him 

from lifting more than 15 pounds, because he has “lost his ability to do fine dexterity 

work,” and because he previously testified that he had limited ability to reach overhead. 

(Doc. 18 at 4 (citing Doc. 15-3 at 58, 73, 89)). Although Plaintiff cites his medical record 

from his November 7, 2014 visit with his cardiologist to show that he was limited from 

lifting more than 15 pounds, (Doc. 15-3 at 73), this activity limitation is an anomaly 
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compared to his cardiologist’s assessments from other visits, as the ALJ pointed out, (id.

at 37). Moreover, while Plaintiff cites a March 8, 2017 record from Arizona Pain 

Specialists as support for his claim that he has “lost his ability to do fine dexterity work,” 

(id. at 58), this record from 2017 is far outside the period at issue in this appeal, as the 

ALJ’s decision only reviewed whether Plaintiff had been under a disability from 

September 15, 2013 through June 9, 2016, (id. at 27, 39). Finally, although Plaintiff 

testified that he had limited ability to reach overhead, (id. at 89), the ALJ ultimately 

determined that the “objective clinical findings were inconsistent” with Plaintiff’s 

allegations regarding the limiting effects of her shoulder pain, and that Plaintiff’s 

“reported bilateral shoulder pain was nonsevere,” (id. at 31). Accordingly, the Court finds 

that the ALJ relied on substantial evidence, including medical records, opinions of 

consulting physicians, and Plaintiff’s reported symptoms and activities when determining 

that Plaintiff had the RFC to perform light work. (Doc. 15-3 at 34–38). 

Furthermore, after determining that Plaintiff’s new evidence regarding his 

impairments was not material, the ALJ was required to adopt the first ALJ’s findings as 

to Plaintiff’s RFC pursuant to Chavez v. Bowen. See Chavez, 844 F.2d at 693–94 (stating 

that claimant’s attainment of “advanced age” status was a “changed circumstance” that 

precluded the application of res judicata to the first ALJ’s “ultimate finding against 

disability,” but applying “some res judicata consideration” to the first ALJ’s findings 

“concerning the claimant’s [RFC], education, and work experience.”). Therefore, the ALJ 

did not err in placing Plaintiff in the “light work” category, as the first ALJ found that 

Plaintiff was able to return to full-time work at the light exertional level as of June 22, 

2012. (Doc. 15-3 at 27). 

D. Whether the ALJ Improperly Based His Decision On His Own Medical 

History 

Plaintiff argues that the ALJ erred by basing his decision on “his own medical 

history in regards to the plaintiffs [sic] shoulder pain” because the ALJ mentioned at the 

end of Plaintiff’s hearing that he, too, had suffered from a frozen shoulder. (Doc. 18 at 4 
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(citing Doc. 15-3 at 113)). While it is true that an ALJ may not substitute his own 

medical judgment for that of a medical expert,9

 the Court is unable to find any evidence 

that the ALJ’s remark had any impact on his decision here. Rather, the ALJ cited relevant 

evidence, including various medical records and records of Plaintiff’s own subjective 

complaints, before reaching the conclusion that Plaintiff’s reported bilateral shoulder pain 

was non-severe. (See Doc. 15-3 at 31 (“Consequently, while the claimant’s subjective 

reports with regard to his shoulder pain [were] supported by treatment records to address 

those symptoms, objective clinical findings were inconsistent with the claimant’s 

allegations regarding the limiting effects of those symptoms and the claimant’s reported 

bilateral shoulder pain was non-severe.”)). As a result, the Court is unable to find that the 

ALJ improperly based his decision on his own medical history. 

E. Whether the ALJ’s Decision Was Not Supported by Substantial 

Evidence Due to the Alleged Failure of Plaintiff’s Prior Attorney to 

Provide the ALJ with all of Plaintiff’s Evidence 

Plaintiff alleges that his former attorney failed to provide the ALJ with all of his 

medical records and evidence. (Doc. 18 at 2–3). Specifically, Plaintiff states that “pages 

351-353, & 346-351 were NOT turned into [sic] SS” by his prior attorney. (Id. (citing 

Doc. 15-7 at 85–92)).10 According to Plaintiff, if the ALJ had this evidence before him, it 

would have provided him “with the answers to most, if not all, of the questions raised by 

ALJ Zisook in his unfavorable decision, . . . and would have produced a different 

outcome[.]” (Id.). Nevertheless, Plaintiff is mistaken, as pages 346 through 353 of the 

certified administrative record were, in fact, provided to the ALJ, and were even marked 

 

9 See Tackett v. Apfel, 180 F.3d 1094, 1102–03 (9th Cir. 1999) (An ALJ may not substitute his own interpretation of the medical evidence for the opinion of medical professionals); see also Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000, as amended

Dec. 13, 2000) (“[A]n ALJ must not substitute his own judgment for a physician’s opinion without relying on other medical evidence or authority in the record.”); Banks v. 

Barnhart, 434 F.Supp.2d 800, 805 (C.D.Cal. 2006) (“An ALJ cannot arbitrarily substitute his own judgment for competent medical opinion, and he must not succumb to the 

temptation to play doctor and make his own independent medical findings.”) (internal quotation marks, alterations and citations omitted). 

10 The pages numbers Plaintiff refers to are the page numbers located in the bottom right hand corner of the pages in the certified administrative record (Doc. 15). 
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as Exhibit numbers B-15E and B-16E. (See Doc. 15-7 at 85–92). Moreover, the transcript 

of Plaintiff’s May 11, 2016 hearing specifically notes that exhibits B-1A through B-17F 

were “received into evidence and made a part of the record” after Plaintiff’s counsel 

responded to the ALJ that he had no objection to the admission of any of the documents 

in the evidence file. (Doc. 15-3 at 76). Likewise, Plaintiff contends that his prior attorney 

failed to submit “pages 354-368” to Social Security for the ALJ’s review. (Doc. 18 at 3 

(citing Doc. 15-7 at 93–107)). Again, Plaintiff is incorrect, as pages 354 through 368 of 

the certified administrative record were provided to the ALJ and were marked as Exhibit 

number B-17E. (See Doc. 15-7 at 93–107). Despite Plaintiff’s claims, the ALJ clearly had 

the evidence on pages 346 through 368 of the certified administrative record before him 

when reviewing Plaintiff’s application for disability. 

Plaintiff also states the evidence located on pages 44 through 72 of the certified 

administrative record was not submitted to Social Security “until the plaintiff had written 

a rebuttal . . . letter to the appeals council in regards to ALJ Zisook’s unfavorable 

decision[.]” (Doc. 18 at 3 (citing Doc. 15-3 at 45–73)). According to Plaintiff, this 

“point[s] out the incompetence of . . . plaintiffs [sic] representing attorney at that time.” 

(Id.). Upon Plaintiff’s request for review of the ALJ’s decision, the Appeals Council 

determined that the materials Plaintiff submitted covering the period from September 2, 

2016 through March 8, 2017 (located on pages 44 through 57 of the certified 

administrative record) did not relate to the period at issue, as the ALJ’s decision only 

reviewed whether Plaintiff had been under a disability from September 15, 2013 through 

June 9, 2016. (Id. at 10, 27, 39).11 Accordingly, the Appeals Council did not consider this 

evidence on pages 44 through 57 of the certified administrative record. (Doc. 15-3 at 10). 

This is consistent with 20 C.F.R. § 404.970(b), which states: “If new and material 

evidence is submitted, the Appeals Council shall consider the additional evidence only 

 

11 Although the Appeals Council’s decision states that the evidence supplied by Plaintiff is dated from September 9, 2016 through March 8, 2017, the Court believes the first date 

was a typographical error. (Doc. 15-3 at 10). A review of the records themselves as well 

as the Court Transcript Index indicates that the materials located on pages 44 through 57 of the certified administrative record are dated September 2, 2016 through March 8, 2017. (Doc. 15-2 at 1; Doc. 15-3 at 57–58). 
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where it relates to the period on or before the date of the administrative law judge hearing 

decision.” 

The Appeals Council also indicated that the evidence Plaintiff provided spanning 

the period from May 20, 2009 through December 3, 2015 (located on pages 58 through 

72 of the certified administrative record)12 did “not show a reasonable probability that it 

would change the outcome of the decision.” (Doc. 15-3 at 10). To the extent Plaintiff is 

attempting to argue that the Appeals Council failed to properly consider this evidence, the 

Court notes that it does “not have jurisdiction to review a decision of the Appeals Council 

denying a request for review of an ALJ’s decision, because the Appeals Council decision 

is a non-final agency action.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 

1161 (9th Cir. 2012) (citing Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 

(9th Cir. 2011)); see also Bifarella v. Colvin, 51 F. Supp. 3d 926, 932–33 (E.D. Cal. 

2014) (“[T]he Ninth Circuit has made clear that district courts do not have jurisdiction to 

review whether or not an Appeals Council appropriately denied a request for review of an 

ALJ’s decision.”). Moreover, the Appeals Council was not required to provide a detailed 

explanation or any evidentiary finding as to why the additional evidence submitted by 

Plaintiff did not warrant review of the ALJ’s decision. See Taylor, 659 F.3d at 1232. 

In support of his position that many of his medical records are not on file with the 

Court due to the alleged failure of his former attorney to provide various medical records 

to Social Security, Plaintiff also attached a medical record from a January 18, 2012 

appointment with Dr. Sudhakar Reddy to his Opening Brief. (Doc. 18 at 2–3, 7). Plaintiff 

claims that this record “shows the diagnosis for Irritable Bowl [sic] Syndrome,” but “is 

not found in the records provided to the court from Social Security[.]” (Id. at 3). At issue 

is whether the Court may review this additional medical record. (See Doc. 20 at 10–11). 

Upon review of the Commissioner’s final decision, the “court shall have power to 

enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, 

 

12 According to the Court Transcript Index, the materials provided by Plaintiff on pages 58 through 72 of the certified administrative record are dated May 20, 2009 through December 3, 2015. (Doc. 15-2 at 1). 
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or reversing the decision of the Commissioner of Social Security, with or without 

remanding the cause for a rehearing.” 42 U.S.C. § 405(g) (emphasis added). Accordingly, 

the Court cannot “affirm, modify, or reverse” the Commissioner’s final decision based 

upon evidence not included in the transcript of record. However, the court “may at any 

time order additional evidence to be taken before the Commissioner of Social Security, 

but only upon a showing that there is new evidence which is material and that there is 

good cause for the failure to incorporate such evidence into the record in a prior 

proceeding[.]” 42 U.S.C. § 405(g); see also Orteza v. Shalala, 50 F.3d 748, 751 (9th Cir. 

1994). Evidence is material if it bears “directly and substantially on the matter in 

dispute.” Burton v. Heckler, 724 F.2d 1415, 1417 (9th Cir. 1984). “As such, it must be 

probative of the claimant’s condition at or before the time of the disability hearing.” Held 

v. Colvin, 82 F. Supp. 3d 1033, 1042 (N.D. Cal. 2015) (citing 20 C.F.R. § 404.970(b); 

Sanchez v. Sec’y of Health & Human Servs., 812 F.2d 509, 511 (9th Cir. 1987)). “To 

demonstrate good cause, the claimant must demonstrate that the new evidence was 

unavailable earlier.” Mayes v. Massanari, 276 F.3d 453, 463 (9th Cir. 2001) (citing Key 

v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985)); see also Johnson v. Schweiker, 656 

F.2d 424, 426 (9th Cir. 1981) (“Good cause can be shown ‘where no party will be 

prejudiced by the acceptance of additional evidence[.]’”) (quoting Kemp v. Weinberger, 

522 F.2d 967, 969 (9th Cir. 1975)). 

Here, Plaintiff has not shown that the medical record he attaches to his Opening 

Statement is material or that there is good cause for his failure to incorporate this 

evidence into the record before the ALJ. First, this evidence is not material, as it does not 

relate to the period of disability in question in this case but, rather, to a prior adjudicated 

period. Specifically, the medical record is dated January 18, 2012, but Plaintiff’s current 

application for a period of disability and disability insurance benefits alleges disability 

beginning September 15, 2013. (Doc. 15-3 at 26). Rather, the January 18, 2012 medical 

record concerns the time period relevant to Plaintiff’s previous application for Title II 

disability, where ALJ Larry E. Johnson determined Plaintiff was disabled from 
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February 7, 2010 through June 21, 2012. (Doc. 15-4 at 6, 13). Therefore, this 

January 18, 2012 medical record is not material because Plaintiff cannot show that it is 

probative of his impairments during the relevant period, nor demonstrate a “reasonable 

possibility that the new evidence would have changed the outcome of the determination.” 

Luna v. Astrue, 623 F.3d 1032, 1034 (9th Cir. 2010); see Allums v. Colvin, 649 F. App’x 

420, 424 (9th Cir. 2016) (denying the plaintiff’s request to supplement the record and 

remand under sentence six of 42 U.S.C. § 405(g) where the court determined that the new 

evidence was not material because the claimant failed to show that the evidence was 

probative of his impairment during the relevant period or demonstrate a reasonable 

possibility that the evidence would have changed the outcome of his case). 

Plaintiff is also unable to demonstrate good cause for failing to submit this new 

evidence, as Plaintiff cannot show that the medical record “was unavailable earlier.”

Mayes, 276 F.3d at 463. To the extent Plaintiff alleges that his former counsel failed to 

submit this medical record, among others, to Social Security, the Court “does not believe 

that counsel’s performance is a proper basis upon which to find ‘good cause’ for not 

submitting to the ALJ available evidence.” Morales v. Colvin, No. CIV.A. 13-229J, 2015 

WL 1507844, at *4 (W.D. Pa. Mar. 31, 2015) (denying the plaintiff’s request for remand 

for consideration of new evidence under sentence six of 42 U.S.C. § 405(g) where the 

plaintiff failed to show that evidence was material and where the court stated that it “does 

not believe that plaintiff’s dissatisfaction with her prior counsel constitutes adequate good 

cause for a remand in this case.”). As Plaintiff failed to meet both the good cause and 

materiality requirements, remand is not warranted for consideration of the medical record 

from Plaintiff’s January 18, 2012 appointment with Dr. Sudhakar Reddy. 

For these reasons, the Court finds that the ALJ’s decision was supported by 

substantial evidence despite Plaintiff’s allegation that his prior attorney did not turn in 

various documents to Social Security. 

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IV. CONCLUSION 

 For the reasons stated above, 

IT IS ORDERED that the final decision of the Commissioner of Social Security 

is AFFIRMED. 

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 

accordingly and terminate this case. 

 Dated this 3rd day of January, 2019.