Hernandez v. Astrue

Filing 15

ORDER by Judge Charles R. Breyer denying 12 Motion for Summary Judgment; granting 14 Motion for Summary Judgment (crblc2, COURT STAFF) (Filed on 11/6/2013)

1
2
3
4
5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7
8
9
United States District Court
For the Northern District of California

12

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER GRANTING
COMMISSIONER’S CROSSMOTION FOR SUMMARY
JUDGMENT

Plaintiff,

10
11

No. C 12-05822 CRB

OTONIEL HERNANDEZ,

/

In this social security case, pro se Plaintiff Otoniel Hernandez (“Hernandez”) moves
for reversal of Defendant Carolyn Colvin’s (“Commissioner’s”) denial of his application for
disability insurance benefits (“DIB”). Before the Court are two motions: Hernandez’s
Motion for Summary Judgment, MSJ (dkt. 12), and the Commissioner’s Cross-Motion for
Summary Judgment, XMSJ (dkt. 14). Because substantial evidence supports the
Commissioner’s decision, the Court GRANTS the Commissioner’s Cross-Motion.
I.

BACKGROUND
A.

Statement Of Facts

On January 15, 2009, fifty-two-year-old Hernandez, a truck driver for fifteen years,
injured his left groin while moving and lifting freight. Administrative Record (“AR”) at 11,
33, 36, 426-27. On January 28, 2009, Hernandez met with physician Jerry Collins, P.A.,
who completed a first report of the industrial injury. Id. at 720. On February 18, 2009, an
ultrasound confirmed that Hernandez had sustained a left inguinal hernia. Id. at 720-21.
Following hernia surgery on February 24, 2009, Hernandez returned to modified work duties
on March 27, 2009, with instructions from Richard Paltenghi, M.D., not to lift more than
twenty five pounds. Id. 720-21, 728. One month later, Hernandez went back to his regular

1

work duties, which required driving, heavy lifting, pulling, and pushing. Id. at 729. On July

2

1, 2009, Hernandez reported increased pain in his left groin and lower back from pushing a

3

heavy container and did not return to work. Id. at 427, 721.

4

On July 28, 2009, Hernandez began meeting with treating physician Rakesh K. Dixit,

5

M.D. Id. at 33-34, 427. Hernandez complained of ongoing symptoms of pain in his left

6

lower back and leg. Id. at 427. On December 1, 2009, Dr. Dixit completed a residual

7

functional capacity (“RFC”) form, which indicated that Hernandez would not be able to

8

return to an eight-hour workday. Id. at 34, 739. According to Dr. Dixit, Hernandez needed

9

an assistive sensor device for pain and should lay down and take rest breaks every fifteen to

United States District Court
For the Northern District of California

10

thirty minutes. Id. at 739, 741. Dr. Dixit’s RFC evaluation also concluded that he should

11

never lift, carry, push, or pull more than ten pounds. Id. at 741.

12

Dickson Rena, M.D., and John D. Warbritton, III, M.D., examined Hernandez in

13

connection with his workers’ compensation claim. Id. at 426-31, 719-37. On August 18,

14

2009, Dr. Rena provided for the following RFC limitations: occasional lifting, pulling, and

15

pushing of ten to fifteen pounds, occasional bending, and maximum lifting, pulling, and

16

pushing of ten to fifteen pounds at a time. Id. at 430. On April 14, 2010, Dr. Warbritton

17

stated that diagnostic studies confirm that Hernandez’s left inguinal hernia repair held and

18

that there was no evidence of recurrence. Id. at 721. And, during his physical examination,

19

Dr. Warbritton described Hernandez’s leg raising as “discordant and exaggerated” and stated

20

that “[m]otor examination revealed inconsistent effort” such that he “was unable to obtain

21

probative measures.” Id. at 731-32. Dr. Warbritton concluded that, while Hernandez is

22

unable to return to his customary job duties as a truck driver, modified work is

23

recommended. Id. at 735.

24

In August 2009, examining physician Tom A. Vo, M.D., performed a repeat CT scan

25

that confirmed there were no new signs of a hernia. Id. at 514. In October 2009, state

26

agency physician E. Gallagher, M.D., reviewed Hernandez’s medical records and maintained

27

that Hernandez was capable of occasional lifting and carrying of up to twenty pounds,

28

frequent lifting and carrying of up to ten pounds, standing, walking, and sitting for a total of
2

1

about six hours a day, and unlimited pushing and pulling. Id. at 438, 442. In December

2

2009, Constance T. Walker, M.D., reviewed Hernandez’s worker compensation claims and

3

noted a lack of “clinical findings to suggest he is in as much pain as he indicates.” Id. at 476.

4

On April 19, 2011, during an administrative hearing, Hernandez testified that he is
unable to return to work because of his constant pain and fatigue. Id. at 39. He said that he

6

takes morphine daily to help with the pain but that it makes him drowsy. Id. at 39, 51.

7

Hernandez also testified that he is unable to microwave food, make a sandwich, and lift

8

anything over ten pounds and that his wife drives him to appointments, helps him shower,

9

and pays someone to do their laundry. Id. at 13, 35, 45-46. Hernandez stated that he has

10
United States District Court
For the Northern District of California

5

traveled to Costa Rica, where he currently lives, twice since January 2010. Id. at 32, 48.

11

During that administrative hearing, the vocational expert testified that, based on the

12

provided RFC—lifting and carrying ten pounds frequently, lifting and carrying twenty

13

pounds occasionally, standing, walking, and sitting for six hours, and climb stairs and

14

balance frequently—Hernandez could perform the following jobs: courier, mail sorter,

15

cafeteria attendant, assembler, plastic design applier, and addressor. Id. at 52, 54-56.1 But,

16

when Hernandez’s counsel added to the hypothetical attention and concentration limitations,

17

alleged to result from fatigue and pain, the vocational expert said that Hernandez would not

18

be able to perform the aforementioned jobs. Id. at 58-59.

19

B.

Procedural History

20

On August 27, 2009, Hernandez applied for DIB, alleging that he has been disabled

21

due to hernia, back, and leg problems since January 15, 2009. Id. at 9, 66. After his

22

application was denied and upon reconsideration, Hernandez requested a hearing before an

23

administrative law judge (“ALJ”). Id. at 66, 79. On May 4, 2011, the ALJ denied Hernandez

24

DIB. Id. at 6. On September 15, 2012, the Appeal’s Council denied his request for review,

25
26
27
28

1

In revising Hernandez’s functional limitations to align with Dr. Rena’s RFC for
Hernandez—being able to occasionally lift, pull, and push ten to fifteen pounds and lift a maximum of
ten to fifteen pounds—the vocational expert testified that there would be up to a 50 percent reduction
in the number of mail sorter, cafeteria attendant, and courier positions available. Id. at 56-57.
3

1

making it the final decision of the Commissioner. Id. at 1. Hernandez then filed this action.

2

Compl. (dkt. 1).

3

II.

LEGAL STANDARD

4

A.

Judicial Review Of The Final Decision Of The Commissioner

5

The district court “reviews the Commissioner’s final decision for substantial evidence,

6

and the Commissioner’s decision will be disturbed only if it is not supported by substantial

7

evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012)

8

(citing 42 U.S.C. § 405(g)). “Substantial evidence” is more than a mere scintilla, but less

9

than a preponderance. Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012). It is “such

United States District Court
For the Northern District of California

10

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

11

Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing Richardson v. Perales, 402 U.S.

12

389, 401 (1971)). The district court must consider the record as a whole, including evidence

13

that supports and detracts from the Commissioner’s conclusion. Frost v. Barnhart, 314 F.3d

14

359, 367 (9th Cir. 2002) (citing Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985)). If

15

evidence reasonably supports affirming or overturning the decision, the court may not

16

substitute its judgment for that of the Commissioner on review. Parra v. Astrue, 481 F.3d

17

742, 746 (9th Cir. 2007).

18

Summary judgment is a method for disposing of an action in which there is no

19

genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

20

See Fed. R. Civ. P. 56. The burden of establishing the lack of a genuine issue of material

21

fact is on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). All

22

inferences drawn must be viewed in the light most favorable to the nonmoving party. T.W.

23

Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

24

B.

Standard For Determining Disability

25

A person is “disabled” for purposes of receiving DIB if he or she is unable to engage

26

in substantial gainful activity (“SGA”) due to a physical or mental impairment that has lasted

27

for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). To

28

qualify for DIB, a claimant must be fully insured and have at least twenty quarters of
4

1

coverage in the forty-quarter period, which ends with the quarter in which the disability

2

occurred. Id. § 416(i)(3), 423(c)(1); 20 C.F.R. § 404.130(b).
The ALJ evaluates a DIB claim using a five-step sequential process. See 20 C.F.R

3
4

§ 416.920(a)(4). In the first step, the ALJ must determine whether the claimant is currently

5

engaged in SGA. Id. § 416.920(a)(4)(i). If the claimant is not so engaged, the second step

6

requires the ALJ to determine whether the claimant has a “severe” impairment which

7

significantly limits his or her ability to perform basic work activities. Id. § 416.920(a)(4)(ii).

8

If the claimant has a “severe” impairment, the third step requires the ALJ to determine

9

whether the impairment meets or equals the criteria of an impairment listed in the relevant

United States District Court
For the Northern District of California

10

regulation. Id. § 404, Subpt. P, App. 1; id. § 416.920(a)(4)(iii). If the claimant does not meet

11

or equal the criteria of a listed impairment, the fourth step requires the ALJ to determine

12

whether the claimant has sufficient RFC to perform his or her past work. Id.

13

§ 416.920(a)(4)(iv). In the fifth step, the burden shifts to the ALJ to establish that the

14

claimant can perform other SGA. Id. § 416.920(a)(4)(v). If the ALJ fails to meet this

15

burden, the claimant must be found disabled. Id.

16

III.

17

DISCUSSION
Based on the five-step sequential analysis, the ALJ determined that Hernandez is not

18

“disabled” for purposes of receiving DIB benefits. See generally AR at 6-19. Hernandez

19

does not challenge the ALJ’s findings as to the first three steps of the sequential analysis.

20

Rather, Hernandez’s Motion is brief, arguing only that the ALJ erred in finding that he could

21

engage in SGA. MSJ at 2. He further states that he is currently receiving medical benefits

22

through SFPATH Housing and Urban Health Clinic and seeing physician Kelly Eagen, M.D.,

23

and psychiatrist Christopher Hobart, M.D., whose declarations he attaches with Dr. Dixit’s in

24

support of his Motion. Id. at 2-3.

25

Conversely, the Commissioner moves for summary judgment on three grounds:

26

(A) substantial evidence supports the ALJ’s RFC determination; (B) the ALJ properly relied

27

on the vocational expert’s testimony to determine that Hernandez could perform work in the

28
5

1

national economy; and (C) the Court should disregard newly submitted evidence. See

2

generally XMSJ. Hernandez did not file an opposition or a reply in support of his Motion.

3

A.

Substantial Evidence Supports The ALJ’s RFC Determination

4

At step four, the ALJ concluded that Hernandez has the RFC to perform light work,

5

limited by the following restrictions: occasionally push, pull, and lift ten to fifteen pounds

6

and occasionally bend. AR at 12 (citing 20 C.F.R. § 404.1567(b)). In reaching this RFC, the

7

ALJ relied primarily on the opinions of examining physicians Dr. Rena and Dr. Warbritton.

8

Id. at 13-16. The ALJ gave no weight to treating physician Dr. Dixit and found Hernandez’s

9

subjective complaints not credible. Id. The Court finds that substantial evidence supports

United States District Court
For the Northern District of California

10

the ALJ’s RFC determination.

11

1.

12

Medical Opinions

The Commissioner first argues that substantial evidence supports the ALJ’s RFC

13

determination because it was based on Dr. Rena’s and Dr. Warbritton’s independent clinical

14

findings. XMSJ at 4. The Commissioner also asserts that treating physician Dr. Dixit’s more

15

limiting RFC opinion does not find support in his treatment records. Id. at 5.

16

As a preliminary matter, the “RFC assessment must always consider and address

17

medical source opinions,” and in cases where the ALJ’s assessment conflicts with an opinion

18

from a medical source, the ALJ “must explain why the opinion was not adopted.” Social

19

Security Ruling (“SSR”) 96-8p. Courts “distinguish among the opinions of three types of

20

physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but

21

do not treat the claimant (examining physicians); and (3) those who neither examine nor treat

22

the claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).

23

Generally, more weight is given to a treating physician’s opinion as to the nature and severity

24

of a claimant’s impairment(s). 20 C.F.R. § 416.927(c)(2). Nevertheless, a treating

25

physician’s opinion is only regarded as controlling where it is “well-supported by medically

26

acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other

27

substantial evidence in [the] case record.” Id. The ALJ must provide specific and legitimate

28

reasons for discounting a treating physician’s opinion. Tommasetti v. Astrue, 533 F.3d 1035,
6

1

1037 (9th Cir. 2008). The opinion of an examining physician is, in turn, entitled to greater

2

weight than the opinion of a non-examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506

3

(9th Cir. 1990). The opinion of an examining doctor may only be rejected for “specific and

4

legitimate” reasons that are supported by substantial evidence in the record. Andrews v.

5

Shala, 53 F.3d 1035, 1043 (9th Cir. 1995). The opinion of a non-treating physician that is

6

based on “independent clinical findings that differ from those of the treating physician” may

7

constitute substantial evidence. Id. at 1041 (citing Magallanes v. Bowen, 881 F.2d 747, 751

8

(9th Cir. 1989)).

9

Here, substantial evidence supports the ALJ’s decision to use examining physician Dr.

United States District Court
For the Northern District of California

10

Rena’s RFC determination to the exclusion of treating physician Dr. Dixit’s. First, Dr.

11

Rena’s assessment was based on his own independent clinical findings. See Tonapetyan v.

12

Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding that a non-treating physician’s opinion

13

alone “constitutes substantial evidence, because it rests on his own independent examination

14

of [the claimant]”). Dr. Rena examined Hernandez and determined that he had normal

15

contours of the lumbar spine, his incision mark in his left inguinal areas was well healed,

16

there was no localized tenderness, and his distal vascular status remained intact, among other

17

findings. AR at 14, 428-29. Following examination, Dr. Rena provided for the following

18

RFC used by the ALJ: “occasional lifting, pulling and pushing ten to fifteen pounds and

19

occasional bending and maximum lifting, pulling, and pushing of the ten to fifteen pounds at

20

a time.” Id. at 430; see fn. 1, supra. Because Dr. Rena’s RFC determination was based on

21

his own clinical examination, the ALJ’s decision was supported by substantial evidence. See

22

Tonapetyan, 242 F.3d at 1149.

23

Second, the ALJ noted that Dr. Rena’s conclusions were consistent with the medical

24

findings of Drs. Warbritton, Vo, and Gallagher. See 20 C.F.R. § 416.927(c)(4) (“Generally,

25

the more consistent an opinion is with the record as a whole, the more weight we will give to

26

that opinion.”). Like Dr. Rena, Dr. Warbritton opined that “modified work is

27

recommended.” AR at 735. Similarly, Dr. Vo agreed with Dr. Rena that Hernandez had

28

only mild lumbar radiculopathy and no new or recurrent hernia. Id. at 14, 514. And, Dr.
7

1

Gallagher provided for an even less restrictive RFC than Dr. Rena’s, allowing for occasional

2

lifting and carrying of up to twenty pounds. Id. at 438. Consequently, the ALJ assigned the

3

greatest weight “to the opinions by Dr. Rena and Dr. Warbritton, as they are consistent with

4

the medical record.” Id. at 16.

5

Third, the ALJ provided specific and legitimate reasons for discounting the medical

6

opinions of treating physician Dr. Dixit, who was the only medical professional to find

7

greater RFC limitations than Dr. Rena. See Lester, 81 F.3d at 830 (holding that when there is

8

a conflict between a treating physician’s and an examining physician’s opinion, the ALJ may

9

disregard the treating physician’s opinion by providing “specific and legitimate reasons

United States District Court
For the Northern District of California

10

supported by substantial evidence in the record”). One reason the ALJ stated for rejecting

11

the treating physician’s opinion is that “Dr. Dixit’s treatment notes [were] somewhat at odds

12

with his recommendation.” AR at 15. For example, the ALJ pointed out that Dr. Dixit’s

13

observation that Hernandez was “very active” was “not consistent with his functional

14

capacity opinion.” Id. at 16. Identifying inconsistencies in a treating physician’s own

15

treatment progress reports constitutes specific and legitimate reasons. See Valentine v.

16

Comm’r Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (holding that a treating

17

physician’s report that the claimant was unemployable while at the same time noting that the

18

claimant had improved functioning at work provides specific and legitimate reasons).

19

Another explanation the ALJ gave for rejecting Dr. Dixit’s opinion was that it lacked

20

descriptive examination tests, such as the leg raising test done by Dr. Warbritton. AR at 15-

21

16. “Controlling weight may not be given to a treating source’s medical opinion unless the

22

opinion is well-supported by medically acceptable clinical and laboratory diagnostic

23

techniques.” SSR 96-2p. Thus, based on these rationales, substantial evidence supports the

24

ALJ’s decision to afford no weight to Dr. Dixit’s conclusory opinions. See Tonapetyan, 242

25

F.3d at 1149 (“an ALJ need not accept a treating physician’s opinion that is conclusory and

26

brief and unsupported by clinical findings”).

27
28

In sum, although more weight is generally given to a treating physician’s opinion, see
20 C.F.R. § 416.927(c)(2), where an examining physician’s RFC determination is based on
8

1

independent clinical findings and consistent with other medical opinions, and where the ALJ

2

has provided specific and legitimate reasons for rejecting a treating physician’s contrary

3

medical evidence, substantial evidence supports the ALJ’s decision. Because substantial

4

evidence supports the ALJ’s decision, this Court declines to substitute its judgment for that

5

of the Commissioner. See Parra, 481 F.3d at 746.

6

2.

Claimant’s Subjective Complaints

7

The Commissioner next contends that “the ALJ properly determined that

8

[Hernandez’s] allegations of subjectively disabling symptoms were not fully credible.”

9

XMSJ at 6. The Commissioner supports her position with examples from the record that

United States District Court
For the Northern District of California

10
11

indicate exaggeration and a lack of credibility. Id.
As a threshold matter, an RFC assessment should consider “only functional limitations

12

and restrictions that result from an individual’s medically determinable impairment or

13

combination of impairments, including the impact of any related symptoms.” SSR 96-8p.

14

And, while a “claimant’s subjective statements may tell of greater limitations than can

15

medical evidence alone,” Tonapetyan, 242 F.3d at 1147 (citing SSR 96-7p), subjective

16

complaints are not conclusive evidence of disability. See 42 U.S.C. § 423(d)(5)(A) (“An

17

individual shall not be considered to be under a disability unless he furnishes such medical

18

and other evidence”). Still, the absence of objective evidence to support the claimant’s

19

subjective symptoms is insufficient to discredit testimony. Berry v. Astrue, 622 F.3d 1228,

20

1234 (9th Cir. 2010). The ALJ must identify the non-credible testimony and the evidence

21

undermining the allegations. Id. That is, the ALJ must offer “specific, clear and convincing

22

reasons” for rejecting the claimant’s testimony. Tommasetti, 533 F.3d at 1039.

23

Here, the ALJ properly considered and rejected Hernandez’s testimony as to his pain,

24

fatigue, incapacity to work, and inability to lift anything over ten pounds, because she first,

25

determined that the evidence did not support Hernandez’s claims, and second, made specific

26

credibility findings. See Thomas, 278 F.3d at 958. First, the ALJ noted that Hernandez did

27

not furnish medical evidence to support his subjective claims of pain. See 20 C.F.R.

28

§ 404.1529(b) (“symptoms, such as pain, fatigue . . . will not be found to affect your ability
9

1

to do basic work activities unless medical signs or laboratory findings show that a medically

2

determinable impairment(s) is present”). In fact, the ALJ pointed out that Hernandez’s

3

reported radicular pain was not supported by electrodiagnostic testing and the findings in his

4

spine were relatively mild. AR at 17. And, the ALJ said, state agency medical consultants

5

found a “persistent pattern of pain complaints with minimal objective findings.” Id. at 16,

6

438. The ALJ also noted that, although Hernandez’s symptoms were treated surgically, he

7

returned to work, thus indicating that the surgery was effective. Id. at 17.

8

Second, the ALJ found Hernandez’s testimony not credible. See Thomas, 278 F.3d at
958 (“If the ALJ finds that the claimant’s testimony as to the severity of her pain and

10
United States District Court
For the Northern District of California

9

impairments is unreliable, the ALJ must make a credibility determination”). The ALJ

11

observed that Hernandez reported little relief from his pain medication yet did not report side

12

effects. AR at 17; see Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (“If a claimant

13

complains about disabling pain but fails to seek treatment, or fails to follow prescribed

14

treatment, for the pain, an ALJ may use such failure as a basis for finding the complaint

15

unjustified or exaggerated” (internal quotations omitted)). The ALJ also pointed out that

16

“the record includes evidence strongly suggesting that the claimant exaggerated symptoms

17

and limitations” and that his effort during examination testing was “discordant.” AR at 14,

18

16-17, 731-32; see Thomas, 278 F.3d at 959 (“Even more compelling is the ALJ’s finding,

19

supported by the record, that [the claimant] failed to give maximum or consistent effort

20

during two physical capacity evaluations . . . [and this] self-limiting behaviors . . . [and]

21

efforts to impede accurate testing of her limitations supports the ALJ’s determinations as to

22

her lack of credibility.”). Finally, the ALJ recognized that Hernandez had a responsibility to

23

seek out appropriate work but instead removed himself from the market voluntarily, by

24

relocating to Costa Rica and failing to submit his medical care records from there. AR at 17.

25

An ALJ is not required to believe every allegation of disability by a claimant. Fair v.

26

Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Even where a claimant produces evidence of an

27

“ailment reasonably expected to produce some pain; many medical conditions produce pain

28

not severe enough to preclude gainful employment.” Id. Because “the ALJ’s credibility
10

1

finding [wa]s supported by substantial evidence in the record, [the Court] may not engage in

2

second-guessing.” Thomas, 278 F.3d at 959.

3

B.

Substantial Evidence Supports The ALJ’s Determination That There Are
Jobs In The National Economy

4

At the fifth step, the ALJ considered Hernandez’s age, education, work experience,
5

and RFC and determined that there are jobs in significant numbers in the national economy
6

that he can perform. AR at 18. Because the ALJ’s hypothetical set out all of Hernandez’s
7

impairments that found support in the record, see fn. 1, supra, substantial evidence supports
8

reliance on the vocation expert’s testimony that jobs exist in the national economy that
9

Hernandez can perform. See Magallanes, 881 F.2d at 757. The ALJ therefore properly
United States District Court
For the Northern District of California

10

determined that Hernandez is capable of performing occupations such as a cafeteria attendant
11

and mail sorter. AR at 18, 56-57. Furthermore, the ALJ was not bound to accept the
12

vocational expert’s testimony that the representative jobs would be unfeasible when adding
13

to the hypothetical a loss of attention and concentration from fatigue and pain, as proffered
14

by Hernandez. AR at 58-59; see Copeland v. Bowen, 861 F.2d 536, 540-41 (9th Cir.1988)
15

(holding that the hypothetical question need not include the claimant’s subjective
16

impairments if the ALJ makes specific findings that claimant is not credible).
17

C.

Evidence Of Disability After The ALJ’s Decision Is Irrelevant

18

The Commissioner argues that the Court should disregard Hernandez’s newly
19

submitted medical evidence because he “cannot show that there is a reasonable possibility
20

that these records would have changed the outcome of the administrative hearing” and
21

because the “evidence must relate to the time period that was before the ALJ.” XMSJ at 9.
22

The Court agrees with the Commissioner to the extent that she avers that evidence submitted
23

after an ALJ decision must relate “to the period on or before the date of the administrative
24

law judge hearing decision.” Id. at 10 (citing 20 C.F.R. § 404.976(b)(1)).
25

Here, Hernandez attaches to his Motion the medical evaluations of Dr. Dixit from
26

June 12 and June 14, 2012, Dr. Hobart from March 19, 2013, and Dr. Eagan from March 26,
27

2013. See MSJ at 5-12. But, this Court’s review is limited to evidence submitted on or
28

before the ALJ’s May 4, 2011 decision. AR at 6; see 20 C.F.R. § 404.976 (“The Appeals
11

1

Council will consider all the evidence in the administrative law judge hearing record as well

2

as any new and material evidence submitted to it which relates to the period on or before the

3

date of the administrative law judge hearing decision.”). Accordingly, these doctors’

4

opinions, related to evaluations of Hernandez after the ALJ decision, do not inform the

5

Court’s analysis or decision.

6

IV.

7
8

CONCLUSION
For the foregoing reasons, the Court GRANTS the Commissioner’s Cross-Motion for

Summary Judgment.

9
United States District Court
For the Northern District of California

10

IT IS SO ORDERED.

11
12
13

CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: November 6, 2013

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12