Kelly J. Maese v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: September 15, 2022
• Docket: 5:20-cv-02035
• Status: Unknown

Opinion

Case 5:20-cv-02035-AFM Document 29 Filed 09/15/22 Page 1 of 7 Page ID #:2676

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KELLY J. M.,1 Case No. 5:20-cv-02035-AFM 12 Plaintiff, MEMORANDUM OPINION AND ORDER AFFIRMING DECISION 13 v. OF THE COMMISSIONER 14 KILOLO KIJAKAZI, Acting 15 Commissioner of Social Security, 16 Defendant. 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying her application for supplemental security income. In accordance with the 20 case management order, the parties have filed briefs addressing the merits of the 21 disputed issues. The matter is now ready for decision. 22 BACKGROUND 23 On September 14, 2017, Plaintiff filed an application for supplemental security 24 income. (AR 15.) Plaintiff’s application was denied initially and on reconsideration. 25 On February 21, 2020, Plaintiff appeared with counsel at a hearing conducted before 26

27 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. Case 5:20-cv-02035-AFM Document 29 Filed 09/15/22 Page 2 of 7 Page ID #:2677

1 an Administrative Law Judge (“ALJ”). At the hearing, Plaintiff and a vocational 2 expert (“VE”) testified. (AR 36-63.) On March 31, 2020, the ALJ issued a decision 3 denying Plaintiff’s claims. (AR 12-35.) 2 The Appeals Council denied review, 4 rendering the ALJ’s decision the final decision of the Commissioner. Plaintiff now 5 seeks judicial review of the Commissioner’s decision. 6 DISPUTED ISSUES 7 1. Whether the ALJ failed to fully and fairly develop the record by not 8 obtaining consultative examinations. 9 2. Whether the ALJ failed to properly consider degenerative changes of 10 Plaintiff’s right shoulder. 11 STANDARD OF REVIEW 12 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 13 determine whether the Commissioner’s findings are supported by substantial 14 evidence and whether the proper legal standards were applied. See Treichler v. 15 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 16 evidence means “more than a mere scintilla” but less than a preponderance. See 17 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 18 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 19 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 20 U.S. at 401. In the social security context, the substantial evidence threshold is “not 21

22 2 The five-step sequential evaluation process was followed in the ALJ’s decision here and consists of the following: Step one: Is the claimant engaging in substantial gainful activity? If so, the 23 claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a 24 “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or 25 equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable 26 of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the 27 claimant is not disabled. If not, the claimant is disabled. See Lester v. Chater, 81 F.3d 821, 828 28 n.5 (9th Cir. 1995).

2 Case 5:20-cv-02035-AFM Document 29 Filed 09/15/22 Page 3 of 7 Page ID #:2678

1 high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). This Court must review the 2 record as a whole, weighing both the evidence that supports and the evidence that 3 detracts from the Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035. Where 4 evidence is susceptible of more than one rational interpretation, the Commissioner’s 5 decision must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 6 DISCUSSION 7 I. Whether the ALJ Sufficiently Developed the Record. 8 Plaintiff contends that the ALJ erred by not sufficiently developing the record. 9 In particular, Plaintiff argues that issues regarding her severe pain and her shoulder 10 impairments required the ALJ to obtain consultative examinations. After review of 11 the record and the ALJ’s decision, the Court is not persuaded by Plaintiff’s 12 arguments. 13 The ALJ “is not a mere umpire” at an administrative proceeding. Higbee v. 14 Sullivan, 975 F.2d 558, 561 (9th Cir. 1992) (per curiam); see also Sims v. Apfel, 530 15 U.S. 103, 110-111 (2000) (“Social Security proceedings are inquisitorial rather than 16 adversarial.”). Thus, an ALJ has a “duty to fully and fairly develop the record and to 17 assure that the claimant’s interests are considered.” Tonapetyan v. Halter, 242 F.3d 18 1144, 1150 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 19 1996)). This duty arises when the evidence in the record is ambiguous or is 20 “inadequate to allow for a proper evaluation.” Mayes v. Massanari, 276 F.3d 453, 21 459-460 (9th Cir. 2001). “An ALJ’s duty to develop the record further is triggered 22 only when there is ambiguous evidence or when the record is inadequate to allow for 23 proper evaluation of the evidence.” Mayes, 276 F.3d at 460. See also 20 C.F.R. 24 § 404.1519a (a consultative examination should be purchased when additional 25 evidence is needed which is not in the medical record; there is a conflict, 26 inconsistency, ambiguity or insufficiency in the evidence which must be resolved; or 27 when there is an indication that there is a change in a claimant’s condition which is 28 likely to affect their ability to work).

3 Case 5:20-cv-02035-AFM Document 29 Filed 09/15/22 Page 4 of 7 Page ID #:2679

1 Here, the record does not reveal ambiguity or insufficient evidence that 2 prevented proper evaluation of the evidence by the ALJ. With regard to the issue of 3 her severe pain, Plaintiff points to records from 2017 (e.g., AR 690, 980, 988, 993- 4 994) that refer to questions about the source of the pain and the possibility of somatic 5 symptom disorder (i.e., excessive focus on physical symptoms, such as pain, that 6 causes emotional distress). However, later treatment records from 2018 and 2019 7 (e.g., AR 1112-1142; 1155; 1251-1259) clearly state that Plaintiff has small fiber 8 neuropathy, and the ALJ found this to be a severe impairment at Step Two of the 9 sequential evaluation (AR 17). In addition, at the beginning of the administrative 10 hearing, Plaintiff’s counsel presented the issue to the ALJ as whether “[t]he physical 11 problems suffered by [Plaintiff] would impact her ability to work at this time.” (AR 12 42.) The ALJ’s decision fully reviews numerous medical records regarding 13 Plaintiff’s pain assertions, and there has been no showing of ambiguity that would 14 necessitate a consultative examination on this subject. As a further argument, 15 Plaintiff contends that the ALJ should have obtained a consultative examination 16 regarding her right shoulder impairment. But the medical record was clear that 17 Plaintiff has degenerative changes in that shoulder, which the ALJ found to be severe 18 at Step Two. (AR 17.) Although Plaintiff argues that a consultative examination was 19 needed to determine if a limitation on reaching should have been included in the 20 residual functional capacity (“RFC”) finding, the ALJ limited Plaintiff to light work 21 (including limits on lifting) after analysis of medical records regarding Plaintiff’s 22 condition including her shoulder and extremities, and there has been no showing of 23 an ambiguity in the evidence regarding the shoulder impairment that required further 24 development of the record by the ALJ.3 25 26 3 It is also noted that the ALJ kept the record open for two weeks following the February 21, 2020 administrative hearing for submission of additional medical records and a statement from Plaintiff’s 27 mother. (AR 62.) After that occurred, Plaintiff’s counsel wrote to the ALJ, stating “This will confirm that our office has now submitted all requested medical evidence . . . and the record is now 28 complete to the best of our knowledge . . . I respectfully request that the post development period

4 Case 5:20-cv-02035-AFM Document 29 Filed 09/15/22 Page 5 of 7 Page ID #:2680

1 II. Whether the ALJ Properly Considered Degenerative Changes in 2 Plaintiff’s Right Shoulder. 3 In her second issue, Plaintiff contends that the ALJ did not make a proper 4 assessment of Plaintiff’s RFC. At Step Two of the sequential evaluation, the ALJ 5 determined that the plaintiff’s degenerative changes of the right shoulder were a 6 severe impairment but, according to Plaintiff, the ALJ erred by failing to provide 7 limitations in the RFC related to this impairment. 8 A claimant’s RFC is the most a claimant can still do despite his limitations. 9 Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996) (citing 20 C.F.R. 10 §§ 404.1545(a); 416.945(a)); Social Security Ruling (“SSR”) 96–8p (an RFC 11 assessment is ordinarily the “maximum remaining ability to do sustained work 12 activities in an ordinary work setting on a regular and continuing basis,” meaning “8 13 hours a day, for 5 days a week, or an equivalent work schedule”). In determining a 14 claimant’s RFC, the ALJ must consider all relevant evidence in the record, including 15 both medical evidence and opinions. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 16 883 (9th Cir. 2006); 20 C.F.R. §§ 404.1545(a)(3). If an RFC assessment conflicts 17 with an opinion from a medical source, the ALJ “must explain why the opinion was 18 not adopted.” Wiles v. Berryhill, 2017 WL 5186333, at *3 (C.D. Cal. Nov. 8, 2017) 19 (quoting SSR 96–8p); see also Vincent v. Heckler, 739 F.2d 1393, 1394-1395 (9th 20 Cir. 1984) (explaining that an ALJ is not required to discuss all the evidence 21 presented, but must explain the rejection of uncontroverted medical evidence, as well 22 as significant probative evidence). After consideration the record, the ALJ’s RFC – 23 and any resulting hypothetical presented to a vocational expert – “must set out all the 24 limitations and restrictions of the particular claimant.” Valentine v. Comm’r Social 25 Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (citation omitted, emphasis in 26 original). 27 be closed, and the case proceed to decision.” (AR 314.) Plaintiff did not seek to submit additional 28 evidence to the Appeals Council.

5 Case 5:20-cv-02035-AFM Document 29 Filed 09/15/22 Page 6 of 7 Page ID #:2681

1 In the present case, the ALJ found that one of Plaintiff’s severe impairments 2 was “degenerative changes of the right shoulder.” (AR 17.) After a review of the 3 medical record, the ALJ also made the following finding regarding Plaintiff’s RFC: 4 After careful consideration of the entire record, I find that the claimant 5 has the residual functional capacity to perform light work as defined in 6 20 CFR 416.967(b), consisting of lifting or carrying no more than 7 twenty pounds with frequent lifting or carrying of objects weighing up 8 to ten pounds. The claimant is able to sit for six hours in an eight-hour 9 workday and stand or walk for six hours in an eight-hour workday. The 10 claimant can occasionally balance, stoop, kneel, crouch, crawl, and 11 climb ramps and stairs, but never climb ladders, ropes, or scaffolds or 12 work at unprotected heights. [AR 21.] 13 While the RFC limited Plaintiff to light work and to frequent lifting and carrying of 14 objects weighing no more ten pounds, Plaintiff urges the ALJ should have included 15 a further limitation (such as a reaching limitation) directed to Plaintiff’s upper 16 extremities – because of a January 2018 MRI. (AR 1003-1004.) 17 The Court does not agree with Plaintiff’s contention and concludes that the 18 ALJ’s RFC finding was appropriate and supported by substantial evidence. An 19 impairment is “severe” at Step Two if it more than minimally affects a claimant’s 20 ability to perform basic work activities. See SSR 85-28. Based on this standard, the 21 ALJ properly found that January 2018 MRI findings showed a “severe” right 22 shoulder impairment. In reaching the RFC finding, the ALJ’s decision at AR 23 23 discussed the January 2018 MRI findings regarding Plaintiff’s right shoulder (AR 24 1003-1004), including a small interstitial tear and a number of other mild findings. 25 The ALJ’s decision also referred to subsequent July 2018 clinical findings that 26 “confirmed normal tone in all extremities with no atrophy. [AR 939.] While manual 27 motor testing could not be tested due to ‘poor effort,’ clinical findings confirmed at 28 least antigravity in all muscles. [Id.]” (AR 23.) In addition, the ALJ credited the

6 Case 5:20-cv-02035-AFM Document 29 Filed 09/15/22 Page 7of7 Page ID #:2682

1 || opinion of state agency consultant E. Christian, M.D., who had reviewed the medical 2 || records available at the time the doctor’s opinion was provided — including the 3 | January 2018 MRI of Plaintiffs right shoulder. Dr. Christian opined that Plaintiff 4 || could perform light work with the same lifting limitations as the ALJ later included 5 || in the RFC. (AR 76-87.) The medical records cited by the ALJ and the opinion of 6 || Dr. Christian are substantial evidence supporting the ALJ’s RFC, and they did not 7 || require the inclusion of further limitations as to Plaintiffs upper extremities. 8 || Moreover, it is significant that Plaintiff does not point to any medical source opinion 9 || that contradicts this RFC or that adds shoulder-related limitations. 10 ORDER 11 IT IS THEREFORE ORDERED that Judgment be entered affirming the 12 || decision of the Commissioner of Social Security and dismissing this action with 13 || prejudice. City Weck— 15 || DATED: 9/15/2022 —— "ALEXANDER F. MacKINNON 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28