1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SOUZAN H.,1 Case No.: 3:23-cv-00031-VET
12 Plaintiff, ORDER ON JOINT MOTION FOR 13 v. JUDICIAL REVIEW OF FINAL DECISION OF THE 14 MARTIN O’MALLEY, Commissioner of COMMISSIONER OF SOCIAL the Social Security Administration,2 15 SECUIRTY
16 Defendant. [Doc No. 22] 17
25 26
27 1 Partially redacted in compliance with Civil Local Rule 7.1(e)(6)(b). 28 2 1 I. INTRODUCTION 2 Proceeding pro se, Plaintiff Souzan H. seeks review of the Commissioner of Social 3 Security Administration’s (“Commissioner”) denial of her application for supplemental 4 security income benefits. Doc. No. 1. Before the Court is the parties’ Joint Motion for 5 Judicial Review. Doc. No. 22 (“Joint Motion”). Having considered the parties’ arguments, 6 applicable law, and the record before it, and for the reasons discussed below, the Court 7 AFFIRMS the Commissioner’s final decision. 8 II. BACKGROUND 9 A. Procedural History 10 On March 30, 2018, Plaintiff applied for supplemental security income benefits, 11 alleging disability beginning on April 8, 2016. AR 73–74. The Commissioner denied 12 Plaintiff’s claim initially on June 19, 2018, and upon reconsideration on November 28, 13 2018. AR 97–101, 107–111. Plaintiff requested a de novo hearing before an ALJ on 14 January 25, 2019. AR 112–113. The ALJ set the matter for hearing on December 5, 2019. 15 AR 131. On that date, the ALJ postponed the hearing until April 23, 2020, to allow Plaintiff 16 an opportunity to consider obtaining representation, submit further medical evidence 17 records, and obtain a language interpreter. AR 11. On April 23, 2020, the ALJ postponed 18 the hearing until August 27, 2020, for the same reasons as the previous postponement. AR 19 34–46. In total, the ALJ postponed the hearing five times to allow the Plaintiff to consider 20 obtaining representation, submit further medical evidence records, and obtain a language 21 interpreter. AR 11. The ALJ held the final hearing on August 26, 2021 and heard testimony 22 from Plaintiff, with the assistance of an interpreter, and a vocational expert (“VE”). AR 23 50–72. 24 On September 17, 2021, the ALJ issued a written decision finding that Plaintiff was 25 not disabled. AR 11–24. On September 2, 2022, the Appeals Council declined review, 26 rendering the ALJ’s decision the final decision by the Commissioner. AR 1–5; 42 U.S.C. 27 § 405(h). On January 6, 2023, Plaintiff initiated this action seeking judicial review of the 28 1 ALJ’s decision. Doc. No. 1. The parties filed the Joint Motion on July 31, 2023. Doc. No. 2 22. 3 B. Summary of ALJ’s Decision 4 The ALJ followed the Commissioner’s five-step sequential evaluation process to 5 determine whether Plaintiff was disabled. See AR 12–13; 20 C.F.R. § 416.920(a). 6 At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful 7 activity since March 30, 2018, the application date. AR 13. At step two, the ALJ found that 8 Plaintiff had the following severe medically determinable impairments: incipient 9 degenerative disc disease, obesity, and epigastric pain of uncertain etiology. AR 14. The 10 ALJ determined that Plaintiff’s medically determinable mental impairments of adjustment 11 disorder with mixed anxiety and depression, and post-traumatic stress disorder (PTSD), 12 considered singly and in combination, caused no more than mild limitation in her ability to 13 perform basic mental work activities and therefore were non-severe. AR 14–15. At step 14 three, the ALJ concluded that Plaintiff did not have an impairment or combination of 15 impairments that met or was medically equivalent to those in the Commissioner’s Listing 16 of Impairments. AR 16. At step four, the ALJ further determined that Plaintiff had the 17 residual functional capacity (“RFC”) to perform medium work with the following 18 limitations: frequently climb ramps and stairs; never climb ladders, ropes, or scaffolds; 19 frequently balance, stoop, or crouch; and occasionally kneel or crawl. AR 16. 20 At step five, based on the VE’s testimony, the ALJ found that Plaintiff was able to 21 perform past relevant work as a Companion and other work that exists in significant 22 numbers in the national economy, including Kitchen Helper and Hand Packager. AR 21– 23 23. Accordingly, the ALJ found Plaintiff not disabled from March 30, 2018, the application 24 date, through September 17, 2021, the date of his decision. AR 23. 25 III. STANDARD OF REVIEW 26 A court may set aside the Commissioner’s denial of benefits “only if the ALJ’s 27 decision was not supported by substantial evidence in the record as a whole or if the ALJ 28 applied the wrong legal standard.” Coleman v. Saul, 979 F.3d 751, 755 (9th Cir. 2020); see 1 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla,” and “means only 2 . . . such relevant evidence as a reasonable mind might accept as adequate to support a 3 conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (quoting Consolidated Edison 4 Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Lingenfelter v. Astrue, 504 F.3d 1028, 5 1035 (9th Cir. 2007) (substantial evidence is “more than a mere scintilla, but less than a 6 preponderance”). A court “must review the administrative record as a whole, weighing 7 both the evidence that supports and the evidence that detracts from the Commissioner’s 8 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). 9 The Court may not impose its own reasoning to affirm the ALJ’s decision. Garrison 10 v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). “If the evidence is susceptible to more than 11 one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Ford v. Saul, 12 950 F.3d 1141, 1154 (9th Cir. 2020) (internal quotations omitted). Thus, “review of an 13 ALJ’s fact-finding for substantial evidence is deferential, and the threshold for such 14 evidentiary sufficiency is not high.” Id. at 1159 (internal quotations omitted) (quoting 15 Biestek, 587 U.S. at 103); Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023) (“Overall, 16 the standard of review is highly deferential.”). 17 Lastly, the Court will not reverse for harmless error. Marsh v. Colvin, 792 F.3d 1170, 18 1173 (9th Cir. 2015). “An error is harmless only if it is inconsequential to the ultimate 19 nondisability determination.” Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020) 20 (internal quotations omitted). 21 IV. DISCUSSION 22 A. Plaintiff’s Arguments 23 As a threshold matter, the Court notes that Plaintiff does not articulate clear or 24 discrete legal issues for the Court’s consideration. Plaintiff states only that she “does not 25 26 27 28 1 defer to the ALJ’s decision” and “presents new evidence.” Joint Motion at 4. Plaintiff also 2 argues generally that “[n]ew evidence should change the case’s decision,” lists several 3 medical conditions and/or ailments, and identifies what Plaintiff represents are “new 4 medical reports.” Id. at 7, 15. Plaintiff further indicates that she “was not able to provide 5 the court and the ALJ with the needed medical reports, and this cost [sic] [her] to lose ALJ 6 approval.” Id. at 7. Lastly, Plaintiff highlights two reports by Dr. Ha Bich Mistry and 7 complains that the ALJ purportedly did not consider either. Id. at 20 (“My question is: why 8 the ALJ didn’t take these medical reports and many others issued by my family care doctor 9 into consideration before taking [sic] his decision and denying my case.”). 10 Because Plaintiff is proceeding pro se, the Court liberally construes Plaintiff’s 11 arguments. See Bernhardt v. L.A. Cty., 339 F.3d 920, 925 (9th Cir. 2003) (“Courts have a 12 duty to construe pro se pleadings liberally, including pro se motions as well as 13 complaints.”); United States v. Qazi, 975 F.3d 989, 992–993 (9th Cir. 2020) (“pro se 14 filings, however inartfully pleaded are held to less stringent standards than formal 15 pleadings drafted by lawyers”). Based on a liberal construction, the Court interprets 16 Plaintiff’s contentions as raising the following two issues: (i) whether Plaintiff presents 17 new evidence that warrants remand for consideration of the new evidence; and (ii) whether 18 the ALJ breached his duty to properly develop the record. The Court addresses each in 19 turn, and based on a thorough review of the record, including Plaintiff’s complaint and the 20 exhibits attached thereto, finds no basis for remand or reversal. The Court further finds that 21 Plaintiff waived any arguments concerning the ALJ’s findings of fact and conclusions of 22 law as she does not otherwise raise with sufficient specificity any legal errors by the ALJ. 23 24 25
26 27 3 Plaintiff also argues that she does not agree with the Commissioner’s decision to not voluntarily settle this matter. As settlement is voluntary, the Commissioner is not required 28 1 B. Plaintiff’s “New Evidence” Does Not Warrant Remand 2 In support of the contention that “[n]ew evidence should change the case’s decision,” 3 Plaintiff presents a bulleted list of medical conditions/ailments coupled with a list of 4 medical evidence that she seemingly represents is “new evidence.” Joint Motion at 9–11, 5 15–19. Beyond listing medical conditions/ailments, Plaintiff does not articulate or identify 6 how the ALJ erred in connection with any of the listed conditions/ailments. Joint Motion 7 at 9, 17. In the absence of argument associated with any particular medical 8 condition/ailment, the Court focuses instead on the “new evidence” Plaintiff references, as 9 this is her primary contention. In this regard, Plaintiff indicates that the relevant evidence 10 is “attached,” id. at 9, except the Joint Motion does not attach any documents. See generally 11 Doc. No. 22. Plaintiff did, however, attach voluminous medical records to the Complaint. 12 See Doc. Nos. 1-1 through 1-11. Liberally construing Plaintiff’s pleadings, and in the 13 absence of any other records, the Court assumes the medical records attached to the 14 Complaint comprise the “new evidence” that Plaintiff asks this Court to consider. A review 15 of those records confirms that remand is not warranted. 16 The Social Security Act permits remand for consideration of new evidence “if a 17 claimant presents evidence that is material to determining disability, and there is good 18 cause for the failure to produce the evidence earlier.” Wainwright v. Sec’y of HHS, 939 19 F.2d 680, 682 (9th Cir. 1991); see also 42 U.S.C. § 405(g); Booz v. Secretary of Health & 20 Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984). Evidence is “material” if it bears 21 “directly and substantially on the matter in dispute.” Mayes v. Massanari, 276 F.3d 453, 22 462 (9th Cir. 2001). Further, Plaintiff must “demonstrate that there is a reasonable 23 possibility that the new evidence would have changed the outcome of the administrative 24 hearing.” Id. (citing Booz, 734 F.2d at 1380–81). Plaintiff does not satisfy the standard for 25 remand. 26 The majority of the records Plaintiff cites and attaches to the Complaint are already 27 part of the administrative record and not in fact “new.” For example, Plaintiff cites reports 28 by her psychiatrist, Dr. Ha Bich Mistry, dated September 2, 2020 and October 21, 2020, as 1 “new medical reports.” Joint Motion at 15. However, Plaintiff submitted both reports for 2 the ALJ’s consideration, which included Plaintiff’s diagnoses of PTSD, Anxiety, and 3 Major Depressive Disorder, and her prescribed medications. See AR 719–721, 733–734. 4 And the ALJ specifically cites to both reports and discusses the September 2020 report at 5 length, as part of his analysis of Plaintiff’s mental impairments. AR 15. Moreover, many 6 of the records attached to the Complaint summarize the same doctor visits documented in 7 the administrative record. Compare AR 608–609 with Doc. No. 1-3 at 14–15; AR 607–608 8 with Doc. No. 1-3 at 21–22; AR 605–607 with Doc. Nos. 1-3 at 28–50 and 1-4 at 1–4; AR 9 600–603 with Doc. No. 1-4 at 30–41; AR 591–596 with Doc. Nos. 1-5 at 37–50 and 1-6 at 10 1–8; AR 747–751 with Doc. Nos. 1-6 at 44–50 and 1-7 at 1–12; AR 739–742 with Doc. 11 No. 1-8 at 1–9; AR 800–805 with Doc. No. 1-9 at 12–25. Because most of Plaintiff’s 12 allegedly “new evidence” is already part of the administrative record, such evidence does 13 not support remand. 14 As to the evidence that is new, none is material, and Plaintiff does not show a 15 reasonable possibility that it would change the outcome of the administrative hearing. The 16 new evidence consists of the following medical records:4 17 An April 5, 2022 record documenting a voicemail message from Plaintiff to Dr. Pushpanjalie Wijeratne’s office in which Plaintiff complains of abdominal 18 pain. The doctor’s office called Plaintiff back twice to discuss her symptoms and 19 sent her a letter but did not receive a call back from Plaintiff regarding this issue. Doc. No. 1-9 at 30–34. 20 21 An April 26, 2022 office visit with Dr. Pushpanjalie Wijeratne, where Plaintiff’s chief complaint was abdominal pain. Doc. No. 1-9 at 40–50 and 1-10 at 1–14. The 22 doctor noted that she has “chronic symptoms with no significant [a]bnormality on 23 test in the past.” Doc. No. 1-9 at 43. 24 25 26 4 As part of its analysis of “new evidence,” the Court does not consider records attached 27 to the Complaint that do not touch on Plaintiff’s medical care, symptoms, or conditions/ailments. See, e.g., Doc. No. 1-9 at 38-40 (advertising a new member 28 1 An April 29, 2022 electronic message from Dr. Pushpanjalie Wijeratne’s office to Plaintiff stating that her blood sugar test was improved compared to the last test. 2 Doc. No. 1-10 at 20–21. 3 A June 27, 2022 telephone encounter with Dr. Pushpanjalie Wijeratne’s office, 4 where Plaintiff requested an appointment for sleep problems. Doc. No. 1-10 at 5 22–24. 6 A July 5, 2022 office visit with Dr. Joann Totah, where Plaintiff’s chief complaint 7 was ear problems. This record reflects a diagnosis of left TMJ disorder, a condition that limits the movement of the jaw. Doc. No. 1-10 at 24–33. 8 A July 23, 2022 office visit with Dr. Alyssa Brooke-Delpizzo, where Plaintiff’s 9 chief complaints were neck pain and ear pain. Doc. No. 1-10 at 43–50 and 1-11 at 10 1–6. 11 A July 25, 2022 office visit with Stefenie Casuto P.A., where Plaintiff’s chief 12 complaint was left ear pain. The record reflects a diagnosis of left otalgia, left hearing loss, and left subjective tinnitus. Doc. No. 1-11 at 9–14. 13 An August 22, 2022 office visit with Christine Hiatt A.U.D., where Plaintiff’s 14 chief complaint was left hearing loss, left tinnitus, left ear pain, and dizziness. The 15 record reflects a diagnosis of asymmetric bilateral sensorineural hearing loss and left subjective tinnitus. The record also indicates that “the left ear has a mild to 16 severe sensorineural hearing loss 250-8 k Hz.” Doc. No. 1-11 at 23–31. 17 A September 8, 2022 office visit with Brenda Guerrero P.A., where the Plaintiff’s 18 chief complaint was hearing problems in the left ear. The record reflects a 19 diagnosis of asymmetric bilateral sensorineural hearing loss. Plaintiff notes “difficultly hearing the TV and gradual decline in hearing.” Doc. No. 1-11 at 37– 20 44. 21 An October 3, 2022 psychiatric appointment with Dr. Ha Bich Mistry relating to 22 Plaintiff’s PTSD and anxiety. Doc. No. 1-2 at 6. 23 As reflected by their date, each record was generated in 2022 and falls outside the 24 relevant period of potential benefit eligibility—March 30, 2018 (date Plaintiff filed her 25 claim) through September 17, 2021 (date of decision). AR 11. Indeed, Plaintiff admits the 26 new evidence consists of medical records created after the ALJ’s decision. See Joint 27 Motion at 10 (“Most of the medical reports that I attached here were issued by specialist 28 doctors in the period following the decision denying my case . . . .”). As such, the new 1 records are not material because none bear “directly and substantially” on the time period 2 considered by the ALJ and thus none are probative of Plaintiff’s impairments as they 3 existed during the relevant time. See, e.g., Sanchez v. Sec’y of Health & Human Servs., 812 4 F.2d 509, 511–512 (9th Cir. 1987) (rejecting new evidence consisting of psychological 5 evaluations as immaterial because it was not probative of the plaintiff’s condition “as it 6 existed at the relevant time – at or before the disability hearing”); Mohdmahir Bin Abdullah 7 v. Comm’r of Soc. Sec., No. 17-cv-2522-DMC, 2019 U.S. Dist. LEXIS 133908, at *9 (E.D. 8 Cal. Aug. 7, 2019) (finding new evidence submitted for the first time in federal court 9 immaterial because it post-dated the ALJ’s hearing and decision); Garcia v. Kijakazi, No. 10 22-cv-00632-SKO, 2023 U.S. Dist. LEXIS 164319, at *11 (E.D. Cal. Sept. 14, 2023) 11 (finding new evidence proffered by a plaintiff immaterial where it did not relate to the 12 relevant time period); Nash v. Comm’r of Soc. Sec., No. 20-cv-104-KJN, 2021 U.S. Dist. 13 LEXIS 69584, at *10–*11 (E.D. Cal. Apr. 9, 2021) (finding new evidence immaterial 14 where the records submitted by plaintiff were generated “a time period well after the ALJ 15 issued the decision”). 16 However, even if the Court were to consider the new records, there is no reasonable 17 possibility that any would change the outcome of the ALJ’s determination. First, one subset 18 of records, specifically records from April 5, 2022, April 29, 2022, and June 27, 2022, 19 relate to administrative tasks such as appointment scheduling or reporting a favorable blood 20 sugar test. None would impact the ALJ’s determination. 21 A second subset reflects five appointments concerning Plaintiff’s hearing loss. This 22 includes the appointments on July 5, 2022, July 23, 2022, July 25, 2022, August 22, 2022, 23 and September 8, 2022. Plaintiff’s hearing loss was not significantly at issue in the 24 underlying proceedings. Hearing loss did not form a basis for Plaintiff’s application for 25 disability, see AR 73–74, 85–86, and more importantly, none of the records before the ALJ 26 suggest Plaintiff suffered from a disabling hearing loss impairment at the time of the 27 hearing. These new records, at most, indicate a condition developed after the hearing, 28 which would not be probative of those impairments at issue before the ALJ. 1 A third subset consists of the April 26, 2022 medical record, where Plaintiff’s chief 2 complaint was abdominal issues. The ALJ considered Plaintiff’s abdominal issues and 3 concluded that Plaintiff’s epigastric pain was a severe medically determinable impairment. 4 AR 14. The ALJ also considered Plaintiff’s abdominal issues in his RFC assessment. AR 5 18–21. This April 26, 2022 record does not reflect a new condition or diagnosis concerning 6 those abdominal issues, new testing reflecting new symptoms, or any associated functional 7 limitations. Therefore, there is no reasonable possibility that this one additional medical 8 record concerning similar abdominal pain would change the outcome of the ALJ’s 9 determination. 10 The fourth and final subset includes the October 3, 2022 record, reflecting Plaintiff’s 11 visit with Dr. Mistry regarding her PTSD and anxiety. The medical evidence considered 12 by the ALJ reflected a diagnosis of PTSD, anxiety, and major depressive disorder. AR 13 654–655, 686–688, 719–721, 733–734, 752–753, 821–827. Further, the ALJ considered 14 Plaintiff’s PTSD and anxiety and determined they were non-severe impairments. AR 14. 15 The ALJ also addressed Plaintiff’s PTSD, anxiety, and depression in the RFC assessment. 16 AR 18–21. This October 3, 2022 record does not reflect a new condition or diagnosis 17 concerning Plaintiff’s mental health, new testing reflecting new symptoms, or any 18 associated functional limitations. As a result, there is no reasonable possibility that this one 19 additional medical record reflecting a visit with Dr. Mistry would change the outcome of 20 the ALJ’s determination. 21 In short, based on a review of those records made available to the Court, i.e., those 22 attached to the Complaint, no new evidence exists that warrants remand. 23 C. The ALJ Properly Developed the Record 24 Plaintiff states that she was “unable to provide the court and the ALJ with the needed 25 medical reports, and this cost [sic] [her] to lose ALJ approval.” Joint Motion at 9. Based 26 on a liberal construction, this statement seemingly touches on the ALJ’s duty to develop 27 the record. Hence, the Court addresses whether the ALJ failed to adequately develop the 28 record. 1 “In Social Security cases, the ALJ has a special duty to develop the record fully and 2 fairly and to ensure that the claimant’s interests are considered, even when the claimant is 3 represented by counsel.” Mayes, 276 F.3d at 459. “When the claimant is unrepresented, 4 however, the ALJ must be especially diligent in exploring for all the relevant facts.” 5 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). “Ambiguous evidence, or the 6 ALJ’s own finding that the record is inadequate to allow for proper evaluation of the 7 evidence, triggers the ALJ’s duty to conduct an appropriate inquiry.” Id.; Armstrong v. 8 Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir.1998). The ALJ may discharge 9 this duty in one of several ways, including continuing the hearing and keeping the record 10 open after the hearing to allow supplementation of the record. Cox v. Califano, 587 F.2d 11 988, 991 (9th Cir. 1978); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998). 12 Here, the ALJ held the first hearing on December 5, 2019. The ALJ held subsequent 13 hearings on April 23, 2020, August 27, 2020, December 3, 2020, and August 12, 2021. AR 14 11. At each hearing, the ALJ asked Plaintiff if there were any other medical documents 15 that needed to be in the record, and on each occasion, the ALJ gave Plaintiff the opportunity 16 to provide additional medical records. AR 11, 45–46. Plaintiff took advantage of the 17 opportunity, and she supplemented the record with physical and mental health records from 18 2019 and 2020. AR 53–54. In total, the ALJ continued the hearing five times over a span 19 of one year and nine months to allow Plaintiff to submit further medical evidence, consider 20 obtaining an attorney, and obtain a language interpreter. AR 11. And Plaintiff 21 acknowledges that the ALJ “held [s]ix sessions of hearing” and asked Plaintiff for more 22 medical reports. Joint Motion at 2. Thus, by the time the ALJ held the final hearing on 23 August 26, 2021, the administrative record included hundreds of pages of medical records 24 dating from 2012 through 2020.5 See, e.g., AR 423–836. 25
26 27 5 At the final hearing on August 26, 2021, the ALJ again asked Plaintiff if the record was complete and even gave Plaintiff the opportunity to keep the record open for 14 days 28 1 The Court finds that the ALJ fulfilled his duty to assist in developing the record by 2 giving Plaintiff multiple opportunities over more than a year and a half to identify and 3 submit medical evidence in support of her disability claim. See Ukolov v. Barnhart, 420 4 F.3d 1002, 1004 (9th Cir. 2005) (“The claimant carries the initial burden of proving a 5 disability.”). Moreover, the medical evidence submitted by Plaintiff was supplemented by 6 the opinions from two psychological consultants, Mark Stephenson, Ph.D. and Joshua D. 7 Schwartz, Ph.D., and two medical consultants, H. Samplay, M.D. and F. Kalmar, M.D. AR 8 77–81, 90–93. Following the hearing on August 26, 2021, the Court also finds that the 9 record before the ALJ was adequate to allow for proper evaluation of Plaintiff’s claim, and 10 there is no argument suggesting that the record was ambiguous. 11 To the extent Plaintiff indicates that she was unable to provide the ALJ with “needed 12 medical reports,” the Court notes that this failure seemingly stems from a loss of health 13 insurance in 2018 when Plaintiff’s husband became unemployed. Joint Motion at 7. 14 According to Plaintiff, the loss of insurance prevented Plaintiff from identifying a “mental 15 specialist” and continuing to treat her “physiological condition,” and “therefore” she was 16 unable to provide the “needed medical reports.” Id. Hence, a lack of insurance caused a 17 gap in medical treatment, which in turn limited the available medical records. The ALJ 18 cannot be faulted for a lack of available medical records. 19 D. Plaintiff Waived Any Arguments Concerning the ALJ’s Findings and Conclusions 20 21 Lastly, the Court addresses Plaintiff’s statement that the ALJ purportedly failed to 22 consider Dr. Mistry’s September 2, 2020 and October 21, 2020 reports. Joint Motion at 20. 23 Plaintiff does not offer any concrete argument as to how this alleged failure constitutes 24 reversible error. In fact, beyond stating that she “does not defer to the ALJ’s decision” and 25
26 27 following the hearing. AR 54–56. Plaintiff expressed no interest in keeping the record open, and given the passage of time, the ALJ concluded that the record would be 28 1 referencing “new evidence,” Plaintiff does not offer any cogent reasons for why reversal is 2 warranted. 3 The Commissioner interprets Plaintiff’s “overall argument” as seemingly “taking 4 issue with the ALJ’s decision to find that her mental impairments were not severe.” Id. at 5 12. The question of whether Plaintiff has a “severe” medically determinable impairment 6 arises at step two in the five-step sequential evaluation process. See Stout v. Comm’r, Soc. 7 Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) (“Step two: Is the claimant’s alleged 8 impairment sufficiently severe to limit his or her ability to work?”). The Court is not 9 persuaded that Plaintiff is arguing that the ALJ erred at step two as she makes no mention 10 of severity or even focuses on mental impairments. 11 While the Court has an obligation to liberally construe Plaintiff’s pleadings and 12 afford her the benefit of any doubt, the Court cannot manufacture arguments for Plaintiff. 13 See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929–30 (9th Cir. 2003) (holding 14 that the court “cannot manufacture arguments for an appellant” and requiring that 15 “contentions [] be accompanied by reasons”). And “[a] general allegation that the ALJ 16 committed legal error, or that the ALJ’s determination is not supported by substantial 17 evidence, is simply not enough.” Behrooz Abdul K. v. Comm’r of Soc. Sec., No. 22-cv- 18 00511-AKB-REP, 2024 U.S. Dist. LEXIS 46355, at *6 (D. Idaho Mar. 13, 2024) (citing 19 Indep. Towers of Wash., 350 F.3d at 929). 20 Here, Plaintiff states that she “does not defer to the ALJ’s decision” but fails to 21 articulate how the ALJ erred. Joint Motion at 4. To the extent Plaintiff suggests that the 22 ALJ did not consider the above-referenced reports by Dr. Mistry, Plaintiff is mistaken. The 23 reports are part of the administrative record and the ALJ cites to both reports more than 24 once in his decision. See AR 15, 18. Beyond this question and the issues already addressed 25 relating to new evidence and the ALJ’s duty to develop the record, Plaintiff does not raise 26 or explain with any specificity any claimed legal error. As such, the Court has no adequate 27 basis to analyze any claim concerning “the ALJ’s decision.” Accordingly, because the 28 Court cannot manufacture arguments for Plaintiff, the Court finds that Plaintiff waived any 1 || arguments concerning the ALJ’s findings and conclusions. See Gallegos v. Comm of Soc. 2 || Sec., No. 23-cv-00090-SAB, 2024 U.S. Dist. LEXIS 56674, at *22 (E.D. Cal. Mar. 27, 3 2024) (finding that Plaintiff “waived any argument regarding the ALJ’s specific findings 4 ||of fact and conclusion of law” by failing to offer any concrete argument as to how the ALJ 5 ||erred); Moore v. Comm’r of Soc. Sec., No. 16-cv-00875-KJN, 2017 U.S. Dist. LEXIS 6 || 128217, at *13 (E.D. Cal. Aug. 11, 2017) (“[P]laintiff fails to argue this issue with any 7 || specificity, beyond his conclusory assertion [and] [p]reliminarily, the court need not 8 address issues that are not fully briefed.”); Groom v. Berryhill, No. EDCV 17-1117 JC, 9 U.S. Dist. LEXIS 52278, at *18 (C.D. Cal. Mar. 27, 2018) (“Plaintiff's Motion again 10 || provides no specific argument regarding how the ALJ specifically erred in such respect, 11 thus fails to persuade the Court that a remand is warranted here.”); Patricia Z. v. 12 || Comm’r of Soc. Sec., No. 18-cv-930 TLF, 2019 U.S. Dist. LEXIS 65106, at *15 (W.D. 13 || Wash. Apr. 16, 2019) (holding that “a bare assertion of an issue does not preserve a claim” 14 despite recitation of evidence, plaintiff offered “no cogent reasons (apart from the 15 argument discussed above) to explain why or how the evidence justifies reversal of the 16 || ALJ’s decision”); Garcia v. Comm of SSA, No. CV-21-00191-PHX-JJT, 2022 U.S. Dist. 17 || LEXIS 195121, at *8 (D. Ariz. Oct. 26, 2022) (“Plaintiff fails to argue with any specificity 18 to which particular ailments Plaintiff believes the ALJ did not correctly consider when 19 || discounting the symptom testimony.”’). 20 CONCLUSION 21 Based on the foregoing reasons, the Court AFFIRMS the Commissioner’s final 22 decision. Accordingly, IT IS HEREBY ORDERED that judgment be entered in favor of 23 || Defendant Commissioner of Social Security and against Plaintiff. The Clerk of the Court 24 |/1is directed to close this action. 25 IT IS SO ORDERED. - 26 Dated: September 26, 2024 ech— 27 Honorable Valerie E. Torres United States Magistrate Judge 28 14