1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Michelle Lynn Flynn, No. CV-20-08308-PCT-MTL
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Michelle Lynn Flynn’s Application for 16 Supplemental Security Income (“SSI”) benefits by the Social Security Administration 17 (“SSA”) under the Social Security Act. Plaintiff filed a Complaint (Doc. 1) seeking judicial 18 review of that denial and an Opening Brief (Doc. 27). Defendant SSA filed an Answering 19 Brief (Doc. 28), and Plaintiff filed a Reply (Doc. 29). The Court has reviewed the briefs 20 and Administrative Record (Doc. 22, “AR”), and affirms the Administrative Law Judge’s 21 (“ALJ”) decision (AR at 18–33) for the reasons addressed herein. 22 I. BACKGROUND 23 Plaintiff filed her application for SSI benefits on December 21, 2016, alleging a 24 disability beginning on December 11, 2014. (AR 18.) Plaintiff subsequently amended her 25 disability onset date to December 21, 2016. Plaintiff’s Application was initially denied on 26 May 12, 2017, and upon reconsideration on December 20, 2017. (Id.) A hearing was held 27 before ALJ Patricia A. Bucci on December 2, 2019, however, the Plaintiff did not appear 28 at that hearing. (Id.) A subsequent hearing was held on March 30, 2020. Plaintiff’s 1 Application was denied in a decision by the ALJ on May 11, 2020. (Id. at 23.) Thereafter, 2 the Appeals Council denied Plaintiff’s Request for Review (AR 16–18), and this appeal 3 followed. (Doc. 1.) 4 After considering the medical evidence and opinions, the ALJ evaluated Plaintiff’s 5 disability claim based on the severe impairments of degenerative disc disease of the 6 cervical spine status post fusion, degenerative disc disease of the lumbar spine, left 7 shoulder impingement status post arthroscopy, obesity, carpal tunnel syndrome, ulnar 8 neuropathy, bipolar disorder, and anxiety disorder. (AR 22.) While the ALJ noted that 9 Plaintiff’s severe impairments limited her ability to perform basic work activities, the ALJ 10 determined that Plaintiff had the residual functional capacity (“RFC”) to perform light 11 work: 12 [Plaintiff has the RFC] to perform light work as defined in 20 CFR 416.967(b) except with the following limitations: 13 frequent upper pushing or pulling bilaterally; no climbing of ladders, ropes, or scaffolds; occasional climbing of ramps and 14 stairs, balancing, stooping, crouching, kneeling, and crawling; occasional overhead reaching bilaterally; frequent bilateral 15 handling and fingering; occasional exposure to nonweather related extreme cold or extreme heat; occasional exposure to 16 excessive vibration; occasional exposure to pulmonary irritants and poorly ventilated areas; no exposure to dangerous 17 machinery; no exposure to unprotected heights; and is limited to work involving understanding, remembering, and carrying 18 out simple instructions with only occasional in person interaction with the general public. 19 20 (AR 23.) Accordingly, the ALJ found that Plaintiff was not disabled. (AR 25.) 21 The sole issue Plaintiff raises on appeal is that the ALJ failed to develop the record 22 below, resulting in an opinion that was not based on substantial evidence. (Doc. 27.) 23 Specifically, the Plaintiff contends that the ALJ “failed to obtain timely opinion evidence 24 in light of significant medical procedures.” (Doc. 27 at 1.) The Commissioner argues that 25 the record was fully developed, and that Plaintiff’s counsel has forfeited any challenge on 26 appeal as counsel submitted a letter to the ALJ “request[ing] that the post hearing 27 development stage of this claim be closed.” (Doc. 28 at 4, citing AR 19, 446.) 28 /// 1 II. LEGAL STANDARDS 2 An ALJ’s factual findings “shall be conclusive if supported by substantial 3 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 4 the Commissioner’s disability determination only if it is not supported by substantial 5 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 6 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 7 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 8 evidence is susceptible to more than one rational interpretation, one of which supports the 9 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 10 954 (9th Cir. 2002) (citations omitted). Whether the Commissioner’s decision is supported 11 by substantial evidence “is a highly deferential standard of review.” Valentine v. Comm’r 12 of Soc. Sec., 574 F.3d 685, 690 (9th Cir. 2009). In determining whether to reverse an ALJ’s 13 decision, the district court reviews only those issues raised by the movant. See Lewis v. 14 Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 15 “In Social Security cases, the ALJ has a special duty to develop the record fully and 16 fairly and to ensure that the claimant’s interests are considered, even when the claimant is 17 represented by counsel.” Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). 18 However, “[a]n ALJ’s duty to develop the record further is triggered only when there is 19 ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 20 evidence.” Id. at 459–60. And “[a]t all times, the burden is on the claimant to establish 21 her entitlement to disability insurance benefits.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th 22 Cir. 1998), as amended (Jan. 26, 1999). Moreover, the proper venue by which to seek 23 development of the record is before the ALJ. See Meanel v. Apfel, 172 F.3d 1111, 1115 24 (9th Cir. 1999), as amended (June 22, 1999) (“[A]t least when claimants are represented 25 by counsel, they must raise all issues and evidence at their administrative hearings in order 26 to preserve them on appeal.”); see also Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 27 2017). 28 /// 1 III. ANALYSIS 2 The sole issue in this matter is whether the ALJ failed to fully develop the record. 3 The crux of Plaintiff’s argument is that the ALJ erred in not soliciting additional medical 4 opinion evidence before making a disability determination. (Doc. 27 at 22.) Plaintiff 5 contends that the evidence of record was not “conducive to layperson ALJ assessment.” 6 (Id.) The Commissioner argues that Plaintiff had the opportunity to request further 7 development of the record, did so, and subsequently requested the record be closed. (Doc. 8 28 at 2–3.) Therefore, the Commissioner argues that the Plaintiff has forfeited any right to 9 argue that the ALJ did not fully develop the record on appeal. (Doc. 28 at 3.) Moreover, 10 the Commissioner argues that the record, containing 2,600 pages of evidence, was more 11 than adequate for the ALJ to fulfill her duties proscribed under law and make a disability 12 determination. (Id.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Michelle Lynn Flynn, No. CV-20-08308-PCT-MTL
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Michelle Lynn Flynn’s Application for 16 Supplemental Security Income (“SSI”) benefits by the Social Security Administration 17 (“SSA”) under the Social Security Act. Plaintiff filed a Complaint (Doc. 1) seeking judicial 18 review of that denial and an Opening Brief (Doc. 27). Defendant SSA filed an Answering 19 Brief (Doc. 28), and Plaintiff filed a Reply (Doc. 29). The Court has reviewed the briefs 20 and Administrative Record (Doc. 22, “AR”), and affirms the Administrative Law Judge’s 21 (“ALJ”) decision (AR at 18–33) for the reasons addressed herein. 22 I. BACKGROUND 23 Plaintiff filed her application for SSI benefits on December 21, 2016, alleging a 24 disability beginning on December 11, 2014. (AR 18.) Plaintiff subsequently amended her 25 disability onset date to December 21, 2016. Plaintiff’s Application was initially denied on 26 May 12, 2017, and upon reconsideration on December 20, 2017. (Id.) A hearing was held 27 before ALJ Patricia A. Bucci on December 2, 2019, however, the Plaintiff did not appear 28 at that hearing. (Id.) A subsequent hearing was held on March 30, 2020. Plaintiff’s 1 Application was denied in a decision by the ALJ on May 11, 2020. (Id. at 23.) Thereafter, 2 the Appeals Council denied Plaintiff’s Request for Review (AR 16–18), and this appeal 3 followed. (Doc. 1.) 4 After considering the medical evidence and opinions, the ALJ evaluated Plaintiff’s 5 disability claim based on the severe impairments of degenerative disc disease of the 6 cervical spine status post fusion, degenerative disc disease of the lumbar spine, left 7 shoulder impingement status post arthroscopy, obesity, carpal tunnel syndrome, ulnar 8 neuropathy, bipolar disorder, and anxiety disorder. (AR 22.) While the ALJ noted that 9 Plaintiff’s severe impairments limited her ability to perform basic work activities, the ALJ 10 determined that Plaintiff had the residual functional capacity (“RFC”) to perform light 11 work: 12 [Plaintiff has the RFC] to perform light work as defined in 20 CFR 416.967(b) except with the following limitations: 13 frequent upper pushing or pulling bilaterally; no climbing of ladders, ropes, or scaffolds; occasional climbing of ramps and 14 stairs, balancing, stooping, crouching, kneeling, and crawling; occasional overhead reaching bilaterally; frequent bilateral 15 handling and fingering; occasional exposure to nonweather related extreme cold or extreme heat; occasional exposure to 16 excessive vibration; occasional exposure to pulmonary irritants and poorly ventilated areas; no exposure to dangerous 17 machinery; no exposure to unprotected heights; and is limited to work involving understanding, remembering, and carrying 18 out simple instructions with only occasional in person interaction with the general public. 19 20 (AR 23.) Accordingly, the ALJ found that Plaintiff was not disabled. (AR 25.) 21 The sole issue Plaintiff raises on appeal is that the ALJ failed to develop the record 22 below, resulting in an opinion that was not based on substantial evidence. (Doc. 27.) 23 Specifically, the Plaintiff contends that the ALJ “failed to obtain timely opinion evidence 24 in light of significant medical procedures.” (Doc. 27 at 1.) The Commissioner argues that 25 the record was fully developed, and that Plaintiff’s counsel has forfeited any challenge on 26 appeal as counsel submitted a letter to the ALJ “request[ing] that the post hearing 27 development stage of this claim be closed.” (Doc. 28 at 4, citing AR 19, 446.) 28 /// 1 II. LEGAL STANDARDS 2 An ALJ’s factual findings “shall be conclusive if supported by substantial 3 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 4 the Commissioner’s disability determination only if it is not supported by substantial 5 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 6 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 7 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 8 evidence is susceptible to more than one rational interpretation, one of which supports the 9 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 10 954 (9th Cir. 2002) (citations omitted). Whether the Commissioner’s decision is supported 11 by substantial evidence “is a highly deferential standard of review.” Valentine v. Comm’r 12 of Soc. Sec., 574 F.3d 685, 690 (9th Cir. 2009). In determining whether to reverse an ALJ’s 13 decision, the district court reviews only those issues raised by the movant. See Lewis v. 14 Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 15 “In Social Security cases, the ALJ has a special duty to develop the record fully and 16 fairly and to ensure that the claimant’s interests are considered, even when the claimant is 17 represented by counsel.” Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). 18 However, “[a]n ALJ’s duty to develop the record further is triggered only when there is 19 ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 20 evidence.” Id. at 459–60. And “[a]t all times, the burden is on the claimant to establish 21 her entitlement to disability insurance benefits.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th 22 Cir. 1998), as amended (Jan. 26, 1999). Moreover, the proper venue by which to seek 23 development of the record is before the ALJ. See Meanel v. Apfel, 172 F.3d 1111, 1115 24 (9th Cir. 1999), as amended (June 22, 1999) (“[A]t least when claimants are represented 25 by counsel, they must raise all issues and evidence at their administrative hearings in order 26 to preserve them on appeal.”); see also Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 27 2017). 28 /// 1 III. ANALYSIS 2 The sole issue in this matter is whether the ALJ failed to fully develop the record. 3 The crux of Plaintiff’s argument is that the ALJ erred in not soliciting additional medical 4 opinion evidence before making a disability determination. (Doc. 27 at 22.) Plaintiff 5 contends that the evidence of record was not “conducive to layperson ALJ assessment.” 6 (Id.) The Commissioner argues that Plaintiff had the opportunity to request further 7 development of the record, did so, and subsequently requested the record be closed. (Doc. 8 28 at 2–3.) Therefore, the Commissioner argues that the Plaintiff has forfeited any right to 9 argue that the ALJ did not fully develop the record on appeal. (Doc. 28 at 3.) Moreover, 10 the Commissioner argues that the record, containing 2,600 pages of evidence, was more 11 than adequate for the ALJ to fulfill her duties proscribed under law and make a disability 12 determination. (Id. at 5.) 13 At the administrative hearing, Plaintiff’s counsel was asked by the ALJ if there was 14 a request to hold the record open to further develop the record. Counsel responded that he 15 needed a couple of weeks to submit additional records and the ALJ held the record open 16 for counsel to submit those records. (AR 19, 46, 65.) Within that time period, counsel 17 submitted additional records and the ALJ exhibited them in the AR. (Id. at 19, 2570–2606.) 18 On April 10, 2020, counsel submitted a letter informing the ALJ that all evidence had been 19 submitted and “request[ed] that the post hearing development stage of this claim be 20 closed.” (Id. at 19, 446.) Following counsel’s letter, the ALJ closed the record and the 21 case was considered submitted for decision. (Id.) 22 Numerous courts in this Circuit have held that an attorney’s statement that the record 23 is complete forecloses an argument that the ALJ failed to develop the record. See Randolph 24 v. Saul, No. 2:18-cv-00555-CLB, 2020 WL 504667, at *8 (D. Nev. Jan. 31, 2020) (no duty 25 to develop record where “the ALJ specifically asked Randolph’s counsel if the record was 26 complete, to which the attorney responded, ‘yes’”); Findley v. Saul, No. 1:18-cv-00341- 27 BAM, 2019 WL 4072364, at *6 (E.D. Cal. Aug. 29, 2019) (“The record contained what 28 appears to be Plaintiff’s complete treatment records, which supported the ALJ’s findings 1 and did not present an ambiguity or inadequacy. Indeed, the Court notes that at the hearing, 2 the ALJ asked Plaintiff’s attorney if the record was complete, and he responded, ‘It is 3 indeed’”); Moruzzi v. Astrue, No. EDCV 11-02040-AJW, 2012 WL 5412106, at *10 (C.D. 4 Cal. Nov. 5, 2012) (“The ALJ had no obligation to search for additional records when 5 plaintiff’s attorney affirmatively represented that the records were complete”); Duenas v. 6 Shalala, 34 F.3d 719, 722 (9th Cir.1994) (holding that the ALJ did not violate her duty to 7 develop the record where “[n]o request was made of the ALJ to develop the record, and it 8 is unclear what further the ALJ could have done”). The same is true here. Not only did 9 Plaintiff’s attorney inform the ALJ that the record was complete, Plaintiff’s attorney also 10 affirmatively asked the ALJ to close the record. (AR 446.) Allowing a de novo hearing as 11 Plaintiff requests would amount to faulting the ALJ for taking Plaintiff at her word that the 12 record could be closed and a decision entered. 13 Moreover, Plaintiff has not shown that the record before the ALJ was either 14 ambiguous or inadequate to allow for proper evaluation of her claim. See Findley, 2019 15 WL 4072364, at *6. Moreover, the record appears to contain the Plaintiff’s complete 16 treatment records, and substantial evidence supports the ALJ’s decision. For example, the 17 ALJ adequately addressed the longitudinal treatment record, Plaintiff’s alleged 18 impairments and symptom testimony, and medical opinion evidence. (AR 23–31.) The 19 Court finds no ambiguity or inadequacy here. 20 Finally, Plaintiff argues that despite the Commissioner’s arguments that the ALJ is 21 the person with whom the disability determination rests, that “the ALJ is, in fact, a 22 layperson.” (Doc. 29 at 1–2.) The Court declines to address this argument given its 23 findings based on counsel’s representations regarding the completeness of the record. 24 Besides, “[i]t is clear that it is the responsibility of the ALJ, not the claimant’s physician, 25 to determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th 26 Cir. 2001). 27 IV. CONCLUSION 28 Plaintiff has not established that the ALJ erred by failing to further develop the || record. Therefore, the request for a de novo hearing is denied and the decision of the ALJ is affirmed. 3 Accordingly, 4 IT IS HEREBY ORDERED that the Administrative Law Judge’s May 11, 2020 5 || decision is affirmed, as upheld by the Appeals Council on September 21, 2022. 6 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly and dismiss this action. 8 Dated this 18th day of August, 2022. 9 Micha T. Sibir Michael T. Liburdi 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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