ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

JOSEPHINE L. STATON, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Complaint, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that: (1) the Report and Recommendation is accepted and adopted as the Findings of Fact and Conclusions of Law herein; (2) Defendant's motion for summary judgment is granted; (3) Plaintiff's motion for summary judgment is denied; and (4) Judgment shall be entered in favor of Defendant.

IT IS FURTHER ORDERED that the Clerk shall serve forthwith a copy of this Order, the Magistrate Judge's Report and Recommendation and the Judgment of this date on Plaintiff and counsel for Defendant.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Josephine L. Staton, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Plaintiff, pro se, filed a complaint on May 18, 2018, seeking review of the Administration's denial of disability benefits. Plaintiff filed a motion for summary judgment on September 28, 2018. Defendant filed a motion for summary judgment on October 29, 2018. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed May 23, 2018.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff, a former pizza delivery driver, kitchen helper, packer, stocker and car wash attendant, asserted disability since April 18, 2005, based on, inter alia, alleged left eye blindness, hearing loss, poor concentration, muscle weakness and fatigue (Administrative Record ("A.R.") 65-68, 199-217, 231-32, 238). An Administrative Law Judge ("ALJ") reviewed the record and heard testimony from Plaintiff, a medical expert and a vocational expert (A.R. 24-31, 36-77).

The ALJ found Plaintiff has a severe "history of cervical and lumbar sprain," but retains the residual functional capacity for medium work (A.R. 27-30). The ALJ further found that a person having this capacity could perform all of Plaintiff's past relevant work (A.R. 30-31 (adopting vocational expert testimony at A.R. 68-69)). Consequently, the ALJ found Plaintiff not disabled (A.R. 31). The Appeals Council denied review (A.R. 1-3).1

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).

DISCUSSION

After consideration of the record as a whole, the Magistrate Judge recommends that Defendant's motion be granted and Plaintiff's motion be denied. The Administration's findings are supported by substantial evidence and are free from material2 legal error. Plaintiff's contrary arguments are unavailing.

I. Summary of Plaintiff's Testimony, Statements and Treatment Records

Plaintiff testified that left eye blindness, right eye blurriness, nerve damage, muscle weakness and memory problems now disable him (A.R. 51-52). Plaintiff reportedly had been injured in prison in 1999, when he allegedly was stabbed in the left eye with a copper wire (A.R. 42-43). Plaintiff claimed he has no vision or even perception of light in his left eye (A.R. 43). Plaintiff asserts that he has not been able to see out of his left eye since December 13, 1999 (Plaintiff's Motion, p. 6).

Contrary to Plaintiff's assertions, records of an emergency room visit in December of 1999 and follow up visits in early 2000 at the Riverside County Regional Medical Center do not suggest that Plaintiff then had left eye blindness (A.R. 424-67). Plaintiff reportedly had stuck himself in the left eye with a half-inch piece of copper wire with which he was "playing," and supposedly had pushed the wire in when he was trying to pull it out (A.R. 430, 432). Visual acuity testing in the emergency room and on follow up in February of 2000 showed 20/70 left eye vision and 20/30 right eye vision (A.R. 432, 435).3 No foreign body was found in Plaintiff's eye on direct examination or on x-rays, and there was no evidence of globe rupture (A.R. 435, 446). When Plaintiff arrived for later scheduled surgery to remove the wire (if any) from Plaintiff's eye, Plaintiff said that he had awakened the previous day to find the wire out of his eye and lying on his pillow (A.R. 441, 444). Plaintiff then said he had no pain or change in his visual acuity (id.). Visual acuity testing in March of 2000 showed improved vision (i.e., 20/50 "OS" (left eye) vision and 20/25 "OD" (right eye) vision), with an indication that no further treatment was necessary (A.R. 449). See Jason D. Rupp, MD, "Learning the Lingo: Ophthalmic Abbreviations, American Academy of Ophthalmology, available online at https://www.aao.org/young-ophthalmologists/yo-info/article/learning-lingo-ophthalmic-abbreviations (last visited Oct. 31, 2018).

Plaintiff also testified that he lost 60 to 70 percent of his strength from a work accident in 2005, when tires fell on his head reportedly causing "decompression" and a feeling of "crushing" in Plaintiff's brain, blurred vision in his right eye, loss of sensation (nerve damage), loss of hearing in the right ear, loss of strength, and involuntary body movements (A.R. 44, 47).4 Plaintiff admitted that he worked as a pizza delivery driver after the work accident in 2005, at a time when he claimed his vision was impaired (A.R. 53). Plaintiff had no driving accidents during this time (A.R. 53-54). Plaintiff said he stopped working as a driver in April of 2009 only because he was being sexually harassed (A.R. 54, 233).

Plaintiff testified that, since the 2005 work accident, the vision in his right eye has decreased to where he can only see a small diameter and has no peripheral vision (i.e., he has tunnel vision) (A.R. 44-45). Plaintiff also said his vision looking straight ahead is unclear (A.R. 45). Plaintiff said he has loss of strength at night, which for the last three months supposedly rendered him unable to speak (A.R. 47). Plaintiff said he experienced pain and cramps in his legs and arms for which he was taking Naproxen (A.R. 48-49). Plaintiff said he could lift one pound repeatedly, but would have trouble lifting five pounds (A.R. 50).5

The record includes a "Summary Report of Investigation" by the Cooperative Disability Investigations Unit ("CDI") dated June 2, 2015 (A.R. 281-84). While investigating suspected malingering, the CDI interviewed Plaintiff at his residence (A.R. 282-83). Investigators concluded that Plaintiff appeared to be functioning at a higher level than he alleged, i.e., Plaintiff did not exhibit any signs of blindness or vision restriction, could read the investigator's identification from two feet away, did not exhibit any difficulty moving about, and was able to concentrate, recall information and answer questions without difficulty (A.R. 282). Plaintiff reportedly confirmed to investigators that he was able to care for himself, cook and take public transportation (A.R. 282).

The medical treatment records report many subjective complaints by Plaintiff but reflect mostly benign findings on examination and objective testing. The record includes treatment notes from providers with the Central Neighborhood Health Foundation from October of 2011 (before the period of alleged disability here at issue) through October of 2014 (A.R. 364-420). Plaintiff generally complained to these providers of, inter alia, neck pain, headaches, urinary incontinence, decreased or blurry right eye vision, body weakness, lower back pain, loss of hearing in the right ear and left eye pain (A.R. 364, 366-67, 369, 371, 375, 385, 393). Plaintiff also reported a history of headaches, joint stiffness with pain, multiple sclerosis/muscle weakness, dizziness, loss of balance and problems walking (A.R. 364, 377).

In October of 2011, Plaintiff reportedly had tenderness on examination of the cervical spine and pain by movement, but full muscle strength and normal muscle tone (A.R. 377). Plaintiff was assessed with cervical radiculitis and given Motrin (A.R. 377, 380).

In January of 2012, Plaintiff presented with an impacted ear for which cerumen (earwax) was removed (A.R. 381). He was noted to have an abnormal hearing test and was referred to an ear nose and throat specialist and also to a neurologist for alleged headaches (A.R. 381-82).

In March of 2012, Plaintiff presented for a General Relief screening (A.R. 364). Neurologic examination showed "inconsistent UE [upper extremity] weakness," and Plaintiff was assessed with weakness and ordered to return in two months (A.R. 364). When Plaintiff returned in May of 2012, he reported muscle spasm, neck stiffness and poor coordination on examination (A.R. 365). Plaintiff was deemed temporarily disabled for two months (A.R. 365).6

In June of 2012, Plaintiff returned, complaining of urinary incontinence and decreased right eye vision (A.R. 385). Plaintiff had not been seen by a neurologist (A.R. 385). On examination, Plaintiff reportedly had tenderness to the cervical spine (A.R. 385). Visual acuity testing showed 20/70 left eye vision and 20/50 vision out of both eyes (A.R. 385). Yet, Plaintiff claimed he could not see out of his right eye (A.R. 385). Plaintiff was referred to a urologist (A.R. 385).

Plaintiff returned in July of 2012, complaining of headaches, body weakness and lower back pain (A.R. 366). There are no examination results reported beyond Plaintiff's vital signs (A.R. 366). Plaintiff was deemed temporarily disabled for five more months and it then was noted that he "should be eligible for SSI" (A.R. 366).

In September of 2012, Plaintiff returned with a "Residual Functional Capacity Physical" form "for SSI" to be signed by a doctor (A.R. 389). He reportedly had a neurology appointment scheduled for later in September (A.R. 389). On examination, Plaintiff reportedly had "TTP" (tenderness to palpation) of the cervical spine and muscle strength of 3/5 in the neck, muscle strength of 2/5 in the right extremities and 3/5 in the left extremities, but normal muscle tone (A.R. 389). Plaintiff also was noted to have depression and short and long term memory loss with slowness in following directions during the examination (A.R. 389). Plaintiff was assessed with memory loss (A.R. 389). Plaintiff reportedly was given the original Residual Functional Capacity Physical form to return to Health Advocates and was advised to keep his neurology appointment for a "complete, in-depth evaluation" (A.R. 390).

In November of 2012, Plaintiff reported that he had an appointment with a neurologist scheduled for January of 2013 and had seen an ear nose and throat specialist two weeks earlier (A.R. 393). Plaintiff then was complaining of blurry vision in the right eye (A.R. 393). Visual acuity testing showed 20/40 left eye vision, but right eye blindness (A.R. 393). Plaintiff was assessed with a visual impairment and referred to an ophthalmologist (A.R. 393).

In December of 2012, an examination reportedly revealed full, symmetric muscle strength, normal muscle tone, no atrophy or abnormal movements, but some upper extremity weakness (A.R. 367). Plaintiff was deemed temporarily disabled for five more months (A.R. 368). Despite referrals, there is no evidence of any visit by Plaintiff to an ophthalmologist, neurologist, or ear nose and throat specialist occurring prior to the current alleged period of disability.

The next treatment records post-date the beginning of the current alleged period of disability. In May of 2013, Plaintiff returned, complaining of, inter alia, loss of hearing in the right ear and problems with his right eye, with no abnormal findings reported on examination (A.R. 369-70). Nevertheless, Plaintiff was deemed temporarily disabled for four more months, but there reportedly would be "no further" extensions without documentation of Plaintiff's medical conditions by a primary care physician (A.R. 370).

In September of 2013, Plaintiff returned with similar complaints (A.R. 371). Examination findings reportedly were normal, except for his eyes which were "grossly within normal limits (corrected and uncorrected)" with "blurred vision when asked to call" (A.R. 371). Plaintiff's motor functioning was 4/5 "on all parts" (A.R. 371). Plaintiff then did not have housing and was deemed temporarily disabled for four more months (A.R. 371-72).

In October of 2013, Plaintiff returned for MRI results but none are reported (A.R. 406). Plaintiff returned again later that month, reportedly requesting a second opinion from another neurologist (A.R. 409).7 Plaintiff's MRI was noted to be "pending" and his neurology appointment was scheduled for November 6, 2013 (A.R. 409-10).

In January of 2014, Plaintiff returned, and no abnormal findings were reported (A.R. 413-14). Plaintiff was directed to follow up with neurology and ophthalmology at "LAC+USC" (A.R. 413). In February of 2014, Plaintiff returned and, on examination, reportedly had a positive cross leg test, bilaterally, but no other abnormal findings (A.R. 373). He was assessed with low back pain and deemed temporarily disabled for four more months (A.R. 374).

Later in February of 2014, Plaintiff presented to the LAC+USC Medical Center for a neurology assessment (A.R. 546-47). Plaintiff reportedly had a normal brain MRI from 2013 (A.R. 546). On examination, Plaintiff was able to see objects with his right eye and had a narrow gait, with no other reported abnormalities (A.R. 546). Plaintiff was diagnosed with blunt head trauma in 2005 (per history) and with post-concussive headaches for which he was prescribed medications (A.R. 546-47). Plaintiff followed up in June of 2014, and his examination findings were unchanged (A.R. 544). When Plaintiff returned in October of 2014, he reportedly had coordination problems with his right eye closed that corrected with the opening of the left eye, and no other abnormal findings on examination (A.R. 542). Plaintiff was noted to have "functional vision loss" with "positive optokinetic response bilaterally and intact stereopsis" (A.R. 543).8

Meanwhile, Plaintiff returned to the Central Neighborhood Health Foundation in June of 2014, complaining of residual left eye pain purportedly from an assault in 2003, with no reported abnormal findings on examination (A.R. 375-76). Plaintiff's temporary disability was continued for four more months (A.R. 376). In October of 2014, Plaintiff returned for another General Relief assessment (A.R. 417). His left eye was described as blind and his right eye was noted as "decreasing the vision," with no other abnormal findings reported (A.R. 417). He was referred to ophthalmology (A.R. 418).

There are also treatment notes from primary care physician, Dr. Jack Azad, who treated Plaintiff from July of 2015 through at least November of 2016 (A.R. 480-92). Plaintiff made similar complaints to Dr. Azad as he had to the providers at the Central Neighborhood Health Foundation (i.e., he complained of neck pain and left upper back pain stemming from his 2005 work accident, insomnia, headaches and muscle weakness) (A.R. 480). Plaintiff reported a history of left eye blindness, cervical spine sprain and radiculopathy, headaches, head trauma, depression and PTSD (A.R. 480). Although Plaintiff reportedly became sober in June of 2011, when Plaintiff presented for a physical examination in July of 2015, Plaintiff admitted that he then was drinking 40 ounces of alcohol weekly (A.R. 356, 480). On examination, there were no abnormal findings (A.R. 480-81). Dr. Azad diagnosed left eye blindness, cervical spine strain, depression and PTSD and ordered testing (A.R. 481). Later in July of 2015, Plaintiff returned and again examination findings reportedly were normal (A.R. 482). In December of 2015, Plaintiff returned for test results, and was noted to have normal findings on examination (A.R. 485). Plaintiff was assessed with "refractive amblyopia, left eye" and advised to get glasses and follow up with an optometrist (A.R. 485). In January of 2016, Plaintiff returned, requesting completion of a "disability paper" (A.R. 487). When Plaintiff returned for medication refills in April of 2016, examination findings reportedly were normal (A.R. 488). In November of 2016, Plaintiff returned for a wellness checkup, requesting that his disability forms be filled out, and he also requested a neurology referral (A.R. 490). There are no "disability papers" from Dr. Azad in the record. No abnormal findings were reported on examination (A.R. 491). Plaintiff apparently was drinking alcohol occasionally, despite living in a sober living house (A.R. 490). Plaintiff was referred for a psychiatric evaluation (A.R. 492).

Meanwhile, ophthalmologist Dr. David Paikal examined Plaintiff on January 30, 2015 (A.R. 473-74). Visual acuity testing showed Plaintiff was able to count his fingers with his right eye, but had no light perception with his left eye — findings interpreted as meaning that Plaintiff was "almost blind" (A.R. 473-74). Dr. Paikal diagnosed decreased vision in both eyes of unclear etiology and stated that the "alleged level of vision is not consistent with degree of pathology seen" (A.R. 473). Dr. Paikal recommended obtaining other available ophthalmology or optometry records for review (A.R. 473).

Plaintiff presented to optometrist Dr. Curtis Knight for evaluation in June of 2015 (A.R. 496). Like Dr. Paikal's findings, visual acuity testing showed that Plaintiff could "CF" (count fingers) at two meters with his right eye, and had no "LP" (light perception) in his left eye (A.R. 496). Like Dr. Paikal, Dr. Knight discerned no obvious reason for the poor vision claimed on testing (A.R. 496). Dr. Knight diagnosed astigmatism in both eyes and recommended that Plaintiff see a retinal specialist and get an MRI to evaluate the cause of his supposedly poor vision (A.R. 496). A December 15, 2015 MRI was normal (A.R. 494).

Retinal specialist Dr. Jason Moss gave Plaintiff an ophthalmic evaluation in March of 2016 (A.R. 495). Plaintiff was seeking "to be deemed `legally blind' for disability purposes" (A.R. 495). Visual acuity testing again showed that Plaintiff could count fingers with his right eye and had no light perception with his left eye (A.R. 495). Dr. Moss opined that, aside from "mild visually insignificant cataracts," there were no abnormalities in Plaintiff's eyes that could explain his supposedly poor vision (A.R. 495). Dr. Moss noted that Plaintiff's left eye did not demonstrate an "afferent pupillary defect" although Plaintiff claimed no light perception vision in that eye (A.R. 495). Plaintiff reportedly was uncooperative with visual field testing (A.R. 495). Dr. Moss found no organic pathology for Plaintiff's alleged vision loss, and suggested Plaintiff consult with a neuroophthalmologist "to workup an intracranial process . . . vs functional vision loss" (A.R. 495).

Retinal specialist Dr. Mehran Taban examined Plaintiff's eyes in October of 2016 (A.R. 493). Plaintiff complained of a history of injuries supposedly resulting in lost vision (A.R. 493). Visual acuity testing showed 20/200 right eye vision and no light perception in the left eye (A.R. 493). Dr. Taban reported that examination findings did not explain any alleged vision loss (A.R. 493). Dr. Taban recommended an MRI for further evaluation (A.R. 493). Dr. Taban stated, "Of note, he states he has NLP [no light perception] OS [left eye] but does have reflex to light. Therefore, if his MRI is normal, I would side towards non-organic vision loss (i.e., mental)" (A.R. 493). (As previously indicated, a December, 2015 MRI had yielded only normal results (A.R. 494)).

Cardiologist Dr. Alpern, the medical expert, reviewed the medical evidence and testified that it was "definitely documented" that Plaintiff is blind in the left eye, but that such documentation appeared to have been based on the volitional responses of Plaintiff "at the time" (A.R. 56, 60). The ophthalmology consultative examiner, Dr. Paikal, had found that Plaintiff has "only finger-count vision" in the right eye, which Dr. Alpern said, if true, would equal Listing 2.029 (A.R. 60-61). Dr. Alpern testified, however, that Dr. Paikal's evaluation was "lacking," as it appeared that Plaintiff's vision is better in the right eye and that he has tunnel vision per his testimony (A.R. 60-61). Dr. Alpern agreed with the specialists who examined Plaintiff's eyes after Dr. Paikal that it is "very possible" the cause of Plaintiff's supposed vision loss may be mental (i.e., "somatoform") (A.R. 62-63). Dr. Alpern agreed that Plaintiff should be restricted from operating motor vehicles because of his alleged eye problems (A.R. 63). Dr. Alpern stated that the record was lacking objective testing for multiple sclerosis, hearing loss, or cervical spine radiculopathy (A.R. 61-62). Dr. Alpern also stated, however, that a MRI of the cervical spine in 2005 had shown a one to two millimeter disc bulge that was not significant and would have shown evidence of multiple sclerosis if there had been evidence of demyelination (A.R. 64).

II. Medical Evidence Post-Dating the ALJ's Decision

Plaintiff has submitted to this Court medical evidence post-dating the ALJ's decision. Specifically, Plaintiff has submitted four treatment notes from Dr. Victor Oranusi from June of 2017 through August of 2018, and a "Physical Health Assessment for General Relief" form dated February 7, 2018 — the date of Plaintiff's second appointment with Dr. Oranusi. See Exhibits filed with Plaintiff's Motion. Plaintiff did not provide any of Dr. Oranusi's records to the Appeals Council. See A.R. 1-5.

In June of 2017, Plaintiff presented to Dr. Oranusi requesting a cane for support due to alleged weakness, and complaining that he is not able to stand for a long period of time. Plaintiff reported "complete blindness" in the left eye and "partial blindness" in the right eye. Plaintiff claimed he was unable to return to work and felt hopeless. On examination, Plaintiff had muscle tenderness, a slow and steady gait and positive Rhomberg sign. Dr. Oranusi assessed generalized myalgias and weakness, depression, chronic anxiety, blindness in the left eye and partial blindness in the right eye. Dr. Oranusi ordered a cane for support during ambulation and referred Plaintiff to ophthalmology. See Exhibits filed with Plaintiff's Motion.

Plaintiff returned in February of 2018. Plaintiff said he had been seen by an ophthalmologist who reportedly had recommended that Plaintiff follow up with a retinal specialist. Plaintiff claimed a history of insomnia, headaches, left eye blindness, right ear hearing loss, joint pain, incontinence, and anxiety. On examination, Plaintiff reportedly was blind in the left eye, with no other abnormal findings reported. See Exhibits filed with Plaintiff's Motion.10

Plaintiff returned in August of 2018, reporting that he had been seen by a retinal specialist for right eye optic atrophy, and needed a follow up appointment. On examination, Plaintiff reportedly was blind in the left eye and ambulated with a cane, with no other abnormal findings reported. Nevertheless, Dr. Oranusi assessed urinary incontinence, optic atrophy in the right eye, anxiety, depression, chronic insomnia, and chronic muscle spasms. See Exhibits filed with Plaintiff's Motion. Despite Plaintiff's reports to Dr. Oranusi that he recently had been seen by an ophthalmologist and retinal specialist, Plaintiff has provided no records of any such recent examination or treatment by any such specialist. See Exhibits filed with Plaintiff's Motion.

III. Substantial Evidence Supports the Conclusion that Plaintiff Could Work through the Date of the ALJ's Decision; Any Alleged Error was Harmless.

A social security claimant bears the burden of "showing that a physical or mental impairment prevents him from engaging in any of his previous occupations." Sanchez v. Secretary, 812 F.2d 509, 511 (9th Cir. 1987); accord Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Plaintiff must prove his impairments prevented him from working for twelve continuous months. See Krumpelman v. Heckler, 767 F.2d 586, 589 (9th Cir. 1985), cert. denied, 475 U.S. 1025 (1986). Substantial evidence supports the conclusion that Plaintiff failed to carry his burden in this case. The Administrative Record contains relevant non-medical and medical evidence that "a reasonable mind might accept as adequate to support [the] conclusion" that Plaintiff was not disabled from all employment through the date of the ALJ's decision. See Richardson v. Perales, 402 U.S. 389, 401 (9th Cir. 2006).

The record contains several consultative evaluations finding little or no functional limitations. Dr. Bahareh Talei prepared a Complete Psychological Examination of Plaintiff dated January 16, 2015 (A.R. 468-72). On examination, Plaintiff reportedly had low average intellectual functioning, mildly diminished memory for immediate, intermediate and remote recall, and moderately diminished attention and concentration span (A.R. 470-71). Dr. Talei gave "probable" diagnoses of a cognitive disorder (not otherwise specified), depressive disorder (not otherwise specified), and alcohol abuse (sustained, in full remission), and assigned a Global Assessment of Functioning ("GAF") score of 58 (A.R. 471). See American Psychological Association, Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV-TR") 34 (4th ed. 2000).11

Dr. Talei opined that Plaintiff would have "mild inability" to understand, remember and carry out detailed instructions, but otherwise would have no work-related psychological limitations (i.e., Plaintiff would be able to understand, remember and carry out short, simplistic instructions without difficulty, make simplistic work-related decisions without special supervision, interact appropriately with supervisors, coworkers and peers on a consistent basis, and could manage his own funds) (A.R. 472).12

Dr. Kambiz Hannani prepared a Complete Orthopedic Consultation dated February 3, 2015 (A.R. 475-78). Plaintiff primarily complained of neck and low back pain and difficulty with his ears and eyes (A.R. 475). On examination, Plaintiff reportedly had tenderness to palpation at the cervicothoracic and lumbosacral junctions, limited range of motion in the cervical and thoracolumbar spine, normal range of motion in the upper and lower extremities, normal pulses and reflexes, and 5/5 motor strength with intact sensation (A.R. 476-78). Dr. Hannani diagnosed cervical and lumbar sprain and opined that Plaintiff is capable of medium work (A.R. 477).13

The ALJ properly relied on the consultative examiners' opinions in finding that Plaintiff retains the capacity to perform medium work. See A.R. 29-30 (ALJ's decision); see also Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 2007) (examining physicians' opinion based on independent clinical findings constitutes substantial evidence to support a disability determination); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (same). The ALJ considered and rejected any limitations based on Plaintiff's alleged vision impairments because the record contained no valid signs or laboratory findings establishing any significant medically determinable vision impairment (A.R. 29-30). A contrary conclusion would have rested on Plaintiff's unsupported self-reports and inconsistent subjective complaints.

The ALJ also considered and rejected any limitations based on Plaintiff's alleged mental impairments because Plaintiff had, at most, mild limitation in the ability to understand, remember or apply information (A.R. 28 (citing Dr. Talei's opinion that Plaintiff would have "mild inability" to understand, remember and carry out detailed instructions at A.R. 472)).

Even if the ALJ somehow erred with respect to the evaluation of Plaintiff's alleged visual impairments or Plaintiff's alleged mental impairments, any error was harmless. Non-examining state agency physicians discerned a medically determinable visual impairment and affective disorders (A.R. 102-03). These physicians gave "great weight" to Dr. Talei's and Dr. Hannani's consultative examiner opinions, however, and opined that Plaintiff has a residual functional capacity with no exertional limitations, unlimited near and far acuity but limited left depth perception, and the ability to understand, remember and carry out simple work related tasks (A.R. 105-07). These non-examining physicians' opinions lend additional support to the ALJ's findings. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (where the opinions of non-examining physicians do not contradict "all other evidence in the record" an ALJ properly may rely on these opinions); Curry v. Sullivan, 925 F.2d 1127, 1130 n.2 (9th Cir. 1990).

The vocational expert testified that a person with the residual functional capacity the ALJ found to exist could perform Plaintiff's past relevant work as a kitchen helper, pizza delivery driver, packing line worker and car wash attendant (A.R. 65-68). Of significance to the Court's harmless error analysis, the Court observes that the vocational expert also testified that if a person were further limited in that he could not operate a motor vehicle and could not perform jobs requiring excellent vision, significant peripheral vision, depth perception, or jobs involving more than simple work related decisions, the person still could perform Plaintiff's past relevant work as a kitchen helper and car wash attendant (A.R. 68-74). The vocational expert's testimony furnishes substantial evidence there exist significant numbers of jobs Plaintiff can perform. See Barker v. Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986); see generally Johnson v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir. 1995) (ALJ properly may rely on vocational expert to identify jobs claimant can perform); 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 404.1520, 416.920.

To the extent the evidence of record is conflicting, the ALJ properly resolved the conflicts. See Treichler v. Commissioner, 775 F.3d 1090, 1098 (9th Cir. 2014) (court "leaves it to the ALJ" to resolve conflicts and ambiguities in the record). The Court must uphold the administrative decision when the evidence "is susceptible to more than one rational interpretation." Andrews v. Shalala, 53 F.3d at 1039-40. The Court will uphold the ALJ's rational interpretation of the evidence in the present case notwithstanding any conflicts in the record.

IV. Plaintiff is Not Entitled to a "Sentence Six" Remand.

This Court may not consider evidence unpresented to the Administration, except in analyzing whether to remand the case under "sentence six" of 42 U.S.C. section 405(g). See Melkonyan v. Sullivan, 501 U.S. 89, 100-03 (1991). Sentence six provides that the Court may remand a case for the administrative consideration of additional evidence "only upon a showing that there is new evidence which is material and there is good cause for the failure to incorporate such evidence into the record in [the] prior [administrative] proceeding." 42 U.S.C. § 405(g).

New evidence is "material" within the meaning of section 405(g) if the evidence "bears directly and substantially on the matter in dispute," and "there is a reasonable possibility that the new evidence would have changed the outcome of the [administrative] determination." Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (citations, quotations and internal brackets omitted). "A claimant does not meet the good cause requirement by merely obtaining a more favorable report once his or her claim has been denied." Mayes v. Massanari, 276 F.3d 453, 463 (9th Cir. 2001). However, "[i]f new information surfaces after the [Administration's] final decision and the claimant could not have obtained that evidence at the time of the administrative proceeding, the good cause requirement is satisfied." Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (citing Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380 (9th Cir. 1984)).

Here, Plaintiff has failed to demonstrate any reasonable possibility that any of the evidence submitted for the first time to this Court would have changed the outcome of the administrative decision. Bruton v. Massanari, 268 F.3d at 827. The new evidence contains no new objective diagnostic findings to support Plaintiff's allegations. Dr. Oranusi's notes, like those of the other providers in the record, rely primarily on Plaintiff's self-reports. Dr. Oranusi's "Physical Health Assessment for General Relief" post-dates the ALJ's decision, lacks any detail and is based on two office visits, with no diagnostic studies and no review of the medical record. There is no reasonable possibility that any of this evidence would have changed the outcome of the administrative proceeding. Cf. Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) ("an ALJ may discredit treating physician's opinions that are conclusory, brief, and unsupported by the record as a whole . . . or by objective medical findings'); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (treating physician's opinion properly rejected where physician's records "provide no basis for the functional restrictions he opined should be imposed on [the claimant]"). Plaintiff has failed to demonstrate the materiality of Dr. Oranusi's treatment records obtained after the ALJ's adverse decision. Mayes v. Massanari, 276 F.3d at 462.14

RECOMMENDATION

For all of the foregoing reasons,15 it is recommended that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) granting Defendant's motion for summary judgment; (3) denying Plaintiff's motion for summary judgment; and (4) directing that Judgment be entered in favor of Defendant.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.