Josue N. Rosales v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: February 23, 2023
• Docket: 2:21-cv-08654
• Status: Unknown

Opinion

Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 1 of 8 Page ID #:704

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOSUE R.,1 11 Case No. 2:21-cv-08654-GJS Plaintiff 12 v. 13 MEMORANDUM OPINION AND KILOLO KIJAKAJI, Acting ORDER 14 Commissioner of Social Security, 15 Defendant.

17 I. 18 II. PROCEDURAL HISTORY 19 Plaintiff Josue R. (“Plaintiff”) filed a complaint seeking review of the 20 decision of the Commissioner of Social Security denying his application for 21 Supplemental Security Income (“SSI”). The parties filed consents to proceed before 22 the undersigned United States Magistrate Judge [Dkts. 10 and 11] and briefs [Dkts. 23 18 (“Pl. Br.”) & 26 (“Def. Br.”)] addressing disputed issues in the case. The matter 24 is now ready for decision. For the reasons set forth below, the Court finds that this 25 matter should be affirmed. 26 27 1 In the interest of privacy, this Order uses only the first name and the initial of 28 the last name of the non-governmental party in this case. Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 2 of 8 Page ID #:705

1 III. ADMINISTRATIVE DECISION UNDER REVIEW 2 Plaintiff filed an application for SSI on November 21, 2019, alleging 3 disability beginning May 1, 2018. [Dkt. 15, Administrative Record (“AR”) 18, 167- 4 72.] Plaintiff’s application was denied at the initial level of review and on 5 reconsideration. [AR 18, 70-75, 85-91.] A telephone hearing was held before 6 Administrative Law Judge James Carberry (“the ALJ”) on February 23, 2021. [AR 7 18, 30-43.] 8 On March 4, 2021, the ALJ issued an unfavorable decision applying the five- 9 step sequential evaluation process for assessing disability. [AR 18-25.] See 20 10 C.F.R. § 416.920(b)-(g)(1). At step one, the ALJ determined that Plaintiff has not 11 engaged in substantial gainful activity since the application date of November 21, 12 2019. [AR 20.] At step two, the ALJ determined that Plaintiff has the following 13 severe impairments: status post gunshot wound to the right upper chest; 14 hemothorax; right brachial plexus injury; and status post stent placement in the right 15 axillary artery. [AR 20.] At step three, the ALJ determined that Plaintiff does not 16 have an impairment or combination of impairments that meets or medically equals 17 the severity of one of the impairments listed in Appendix I of the Regulations. [AR 18 21.] See 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ found that Plaintiff has the 19 residual functional capacity (“RFC”) to perform light work, as defined in 20 C.F.R. 20 § 416.967(b), except he has no use of the right (dominant) upper extremity, is 21 precluded from using ladders, ropes or scaffolds, and is limited to using ramps and 22 stairs occasionally and engaging in other postural activities frequently. [AR 21.] 23 At step four, the ALJ determined that Plaintiff does not have any past relevant work. 24 [AR 23.] At step five, based on the testimony of the vocational expert (“VE”), the 25 ALJ found that Plaintiff could perform other work that exists in significant numbers 26 in the national economy, including representative occupations such as usher, 27 information clerk, and ticket taker. [AR 24.] Therefore, the ALJ concluded that 28 Plaintiff has not been disabled since November 21, 2019, the application date. [AR 2 Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 3 of 8 Page ID #:706

1 24.] 2 The Appeals Council denied review of the ALJ’s decision on August 26, 3 2021. [AR 1-6.] This action followed. 4 Plaintiff contends that the ALJ failed to develop a complete medical record to 5 support the RFC assessment and failed to offer legally sufficient reasons for 6 rejecting his subjective complaints. [Pl. Br. at 4-16.] 7 The Commissioner asserts that the ALJ’s decision is supported by substantial 8 evidence and should be affirmed. [Def. Br. at 2-9.] 9 10 IV. GOVERNING STANDARD 11 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 12 determine if: (1) the Commissioner’s findings are supported by substantial 13 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 14 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 15 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence … is 16 ‘more than a mere scintilla’ … [i]t means – and only means – ‘such relevant 17 evidence as a reasonable mind might accept as adequate to support a conclusion.’” 18 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v. 19 Comm’r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 2014) (“[s]ubstantial evidence is 20 more than a mere scintilla but less than a preponderance”) (internal quotation marks 21 and citation omitted). 22 The Court will uphold the Commissioner’s decision when “‘the evidence is 23 susceptible to more than one rational interpretation.’” Burch v. Barnhart, 400 F.3d 24 676, 681 (9th Cir. 2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 25 1989)). However, the Court may review only the reasons stated by the ALJ in the 26 decision “and may not affirm the ALJ on a ground upon which he did not rely.” 27 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the 28 Commissioner’s decision if it is based on harmless error, which exists if the error is 3 Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 4 of 8 Page ID #:707

1 “inconsequential to the ultimate nondisability determination, or that, despite the 2 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin, 3 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted). 4 V. DISCUSSION 5 A. Development of the Medical Record 6 Plaintiff contends that the ALJ failed to develop a complete medical record to 7 support the RFC assessment. [Pl. Br. at 2-5.] Specifically, Plaintiff asserts that the 8 “vast majority” of medical evidence significantly predates his SSI application date 9 of November 21, 2019, because it relates to treatment of a gunshot wound to his 10 right chest sustained on May 13, 2018. [Pl. Br. at 4.] Plaintiff suggests that the ALJ 11 should have developed the record further “by ordering a consultative examination 12 … to provide an objective assessment of Plaintiff’s current physical abilities.” [Pl. 13 Br. at 5.] 14 Plaintiff waived this challenge to the development of the medical record by 15 failing to raise it before the ALJ. “[W]hen claimants are represented by counsel, 16 they must raise all issues and evidence at their administrative hearings in order to 17 preserve them on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). 18 Plaintiff, who was represented by counsel at the hearing, knew that the record 19 contained very few medical records issued after Plaintiff’s application date (i.e., “a 20 handful of occupational therapy visits in December of 2019 and January of 2020, 21 follow-up diagnostic imaging studies of Plaintiff’s right upper extremity, and two 22 pages of handwritten … treatment notes”). [Pl. Br. at 4; AR 33, 246-58, 601-04, 23 610-11.] If Plaintiff believed that the ALJ needed to develop the record further 24 because it was lacking evidence of Plaintiff’s physical abilities during the relevant 25 period, he should have raised that issue at the hearing. Plaintiff’s failure to do so 26 waived the issue. See Meanel, 172 F.3d at 1115. 27 Moreover, even if the issue had not been waived, Plaintiff has not shown that 28 4 Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 5 of 8 Page ID #:708

1 it warrants remand. “An ALJ’s duty to develop the record further is triggered only 2 when there is ambiguous evidence or when the record is inadequate to allow for 3 proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th 4 Cir. 2001). A consultative examination may be ordered “to try to resolve an 5 inconsistency in the evidence, or when the evidence as a whole is insufficient to 6 allow” an ALJ to make a determination on a claim. 20 C.F.R. § 404.1519a(b). 7 Here, Plaintiff has failed to demonstrate that the record was inadequate to allow for 8 proper evaluation of his claim. The ALJ obtained and reviewed Plaintiff’s medical 9 records but found no ambiguities, inadequacies, or conflicts in the record that had to 10 be resolved. Thus, the ALJ was not required to order a consultative examination or 11 request additional information in order to fulfill his duty to fully and fairly develop 12 the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) 13 (explaining that “[a]mbiguous evidence, or the ALJ’s own finding that the record is 14 inadequate to allow for proper evaluation of the evidence,” triggers the ALJ’s duty 15 to further develop the record). 16 B. Plaintiff’s Symptom Testimony 17 Plaintiff contends the ALJ improperly rejected his subjective symptom 18 testimony. [Pl. Br. at 5-7.] 19 In evaluating a claimant’s testimony regarding subjective pain or symptoms, 20 an ALJ must engage in a two-step analysis. See Lingenfelter v. Astrue, 504 F.3d 21 1028, 1035-36 (9th Cir. 2007); 20 C.F.R. § 416.929. “First, the ALJ must determine 22 whether the claimant has presented objective medical evidence of an underlying 23 impairment, ‘which could reasonably be expected to produce the pain or other 24 symptoms alleged.’” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 25 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if the claimant meets the first 26 step and there is no evidence of malingering, “‘the ALJ can reject the claimant’s 27 testimony about the severity of her symptoms only by offering specific, clear and 28 convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting Smolen 5 Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 6 of 8 Page ID #:709

1 v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). “The ALJ must state specifically 2 which symptom testimony is not credible and what facts in the record lead to that 3 conclusion.” Smolen, 80 F.3d at 1284; see also Soc. Sec. Ruling 16-3p Titles II & 4 XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P, 2017 WL 5180304, 5 *4 (S.S.A. Oct. 25, 2017) (explaining that the ALJ must “evaluate the intensity and 6 persistence of [the] individual’s symptoms ... and determine the extent to which 7 [those] symptoms limit [his] ... ability to perform work-related activities”). 8 At the hearing, Plaintiff testified that he has not been able to use his right 9 hand and arm since he suffered a gunshot wound to the right chest and shoulder area 10 in May 2018. [AR 33-34, 36, 40.] Plaintiff stated that he cannot watch his two- 11 year-old son by himself and his wife assists him with activities such as showering 12 and tying his shoes. [AR 34, 41.] In his Exertion Questionnaire, Plaintiff indicated 13 that he has to use his non-dominant (left) hand, is unable to lift, carry or grip 14 objects, feels lightheaded and sleepy from his medications, has difficulty breathing, 15 needs “constant breaks,” feels very tired and weak after walking one to two blocks, 16 and needs help with housework. [AR 194-97.] In his Disability Report, Plaintiff 17 alleged that he suffers from depression, nerve damage, pain, numbness, tingling, 18 swelling, muscle weakness, and loss of muscle. [AR 178.] 19 The ALJ found that Plaintiff’s “medically determinable impairments could 20 reasonably be expected to cause the alleged symptoms,” but Plaintiff’s “statements 21 concerning the extent to which he is limited by these symptoms are not entirely 22 consistent with the medical evidence and other evidence in the record.” [AR 22.] 23 Plaintiff argues that the ALJ erred by using conclusory “boilerplate” language to 24 reject his symptom testimony without “contrast[ing] any individual statements to 25 specific medical findings.” [Pl. Br. at 7.] Plaintiff’s argument lacks merit. Rather 26 than relying only on “boilerplate” language, the ALJ discussed specific, clear and 27 convincing reasons for rejecting Plaintiff’s testimony, as discussed below. 28 /// 6 Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 7 of 8 Page ID #:710

1 1. Medical Evidence 2 The ALJ may consider objective medical evidence when assessing a 3 claimant’s testimony. See 20 C.F.R. § 416.929(c)(2) (“Objective medical evidence 4 … is a useful indicator to assist us in making reasonable conclusions about the 5 intensity and persistence of your symptoms and the effect those symptoms, such as 6 pain, may have on your ability to work…”); Burch, 400 F.3d at 681 (“Although lack 7 of medical evidence cannot form the sole basis for discounting pain testimony, it is a 8 factor that the ALJ can consider in his credibility analysis.”). 9 Here, the ALJ found that Plaintiff’s impairments (status post gunshot wound 10 to the right upper chest, hemothorax, right brachial plexus injury, and status post 11 stent placement in the right axillary artery) resulted in significant functional 12 limitations, including no use of the right (dominant) upper extremity. [AR 21-23, 13 439.] Although the ALJ acknowledged the “genuineness” of Plaintiff’s symptom 14 testimony, the ALJ found that some of Plaintiff’s reported symptoms and limitations 15 were inconsistent with the evidence of record. [AR 22.] In particular, the ALJ 16 noted that while Plaintiff claimed that he suffered from depression, there was no 17 evidence from any medical source establishing depression as a medically 18 determinable impairment. [AR 20, 22, 178.] Plaintiff does not dispute this finding. 19 There was also no evidence that Plaintiff sought or received mental health treatment. 20 [AR 20.] Further, while Plaintiff alleged that he could not lift, carry, or grip objects, 21 the ALJ noted that the medical record did not show any limitations in Plaintiff’s use 22 of his left upper extremity. [AR 22-23, 194-95.] Thus, the ALJ properly considered 23 the lack of objective medical evidence in discounting Plaintiff’s subjective symptom 24 testimony. See Burch, 400 F.3d at 680. 25 2. Treatment History 26 The ALJ found that the treatment Plaintiff received undermined his subjective 27 symptom testimony. [AR 22.] With respect to Plaintiff’s complaints of neuropathic 28 pain and limitations in the use of his right upper extremity, the ALJ noted that 7 Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 8of8 Page ID#:711

1 || treatment consisted primarily of medication and physical therapy. [AR 22, 411, 2 || 614.] Plaintiff does not cite any medical reports or other evidence in the record 3 || suggesting that Plaintiff received more aggressive forms of treatment after he was 4 || released from the hospital in May 2018.” “[E]vidence of ‘conservative treatment’ is 5 || sufficient to discount a claimant’s testimony regarding severity of an impairment.” 6 || Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007); see also Meanel, 172 F.3d at 7 || 1114 (rejecting subjective pain complaints where petitioner’s “claim that she 8 || experienced pain approaching the highest level imaginable was inconsistent with the 9 || ‘minimal, conservative treatment’ that she received’). Plaintiffs failure to seek 10 || treatment for depression also supported the ALJ’s decision to discount Plaintiffs 11 || subjective complaints. [AR 20, 22]; Burch, 400 F.3d at 681 (“The ALJ is permitted 12 || to consider lack of treatment in his credibility determination.”). 13 Accordingly, the ALJ’s assessment of Plaintiff's subjective complaints is 14 || supported by substantial evidence. 15 16 □□□ CONCLUSION 17 For all of the foregoing reasons, IT IS ORDERED that the decision of the 18 || Commissioner finding Plaintiff not disabled is AFFIRMED 19 20 IT IS SO ORDERED. 21 22 || DATED: February 23, 2023 pea 23 74 GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 25 26 |, 2 While the record reflects that Plaintiff was prescribed Norco (hydrocodone 27 || with acetaminophen) when he was released from the hospital in May 2018 [AR 28 411], his subsequent medical records indicate he had stopped taking Norco [AR 5576, 82-83, 589, 596-97, 611, 617].