Killman v. Dudek

• Court: District Court, D. Nevada
• Decided: July 18, 2025
• Docket: 2:24-cv-01337
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 KENDALL ANTHONY KILLMAN, Case No. 2:24-cv-01337-EJY

5 Plaintiff, ORDER 6 v.

7 LELAND DUDEK, Acting Commissioner of Social Security, 8 Defendant. 9 10 Pending before the Court is Plaintiff Kendall Killman’s Complaint for Review of Final 11 Decision of the Commissioner of Social Security and his Brief in support thereof. ECF Nos. 6, 16. 12 The Court reviewed Plaintiff’s Brief, the Commissioner’s Brief in response (ECF No. 18), and 13 Plaintiff’s Reply (ECF No. 19). The Court finds as follows. 14 I. Background 15 Plaintiff filed an application for a survivor claim of Child Disability Benefits (“CDB”) on 16 November 1, 2019, alleging a disability onset date of January 1, 2015. Administrative Record 17 (“AR”) 250-53. Plaintiff claimed his disability was the result of the following impairments: Ehlers- 18 Danlos Syndrome (“EDS”), scoliosis, fibromyalgia, an occult tethered cord, anxiety, mast cell 19 activation syndrome , depression, postural orthostatic tachycardia syndrome , syringomyelia, and 20 irritable bowel syndrome . AR 278. This claim was denied on April 17, 2020, with the state agency 21 determining that although they found Plaintiff’s condition was severe, “it [was] expected to improve 22 and … [was] not expected to remain severe enough for 12 months in a row to keep [Plaintiff] from 23 working.” AR 112. This finding was based in part on the fact that Plaintiff had recently undergone 24 surgery for his tethered cord and reported significant improvement. AR 103. Plaintiff filed a request 25 for reconsideration alleging his condition had not improved and claiming a new disability onset date 26 of May 31, 2020. AR 114. Plaintiff’s claim was denied again upon reconsideration on April 22, 27 2022. AR 135-38. 1 Plaintiff filed a written request for a hearing before an Administrative Law Judge (“ALJ”) 2 on June 2, 2022. AR 139. At this hearing, which took place on April 28, 2023, Plaintiff alleged he 3 experienced constant pain and fatigue while sitting or standing, requiring him to lie down between 4 ten to twenty times each day and use a wheelchair outside the home. AR 71-76. Plaintiff noted that 5 the surgery for his tethered cord and stem cell injections in his knees had resulted in significant 6 improvements, but that he still experienced severe leg weakness. AR 70, 74. Regarding his mental 7 health symptoms, Plaintiff stated that he frequently experiences suicidal thoughts, but indicated he 8 was unwilling to try new medication for anxiety or depression after previously trying Desipramine. 9 AR 78, 82. The ALJ issued a decision of non-disabled on September 11, 2023. AR 22-45. Plaintiff 10 submitted a request for review by the Appeals Council, who denied the request on May 22, 2024, 11 rendering the ALJ’s decision the final decision of the Commissioner. AR 1-4. Plaintiff timely filed 12 the instant action seeking judicial review of the Commissioner’s decision on July 19, 2024. 13 II. Standard of Review 14 The reviewing court shall affirm the Commissioner’s decision if the decision is based on 15 correct legal standards and the legal findings are supported by substantial evidence in the record. 42 16 U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 17 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable 18 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 19 (1971) (internal citation and quotation marks omitted). In reviewing the Commissioner’s alleged 20 errors, the Court must weigh “both the evidence that supports and detracts from the 21 [Commissioner’s] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 22 “When the evidence before the ALJ is subject to more than one rational interpretation, we 23 must defer to the ALJ’s conclusion.” Batson, 359 F.3d at 1198, citing Andrews v. Shalala, 53 F.3d 24 1035, 1041 (9th Cir. 1995). A reviewing court, however, “cannot affirm the decision of an agency 25 on a ground that the agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. 26 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). Finally, the court may not 27 reverse an ALJ’s decision on account of an error that is harmless. Burch v. Barnhart, 400 F.3d 676, 1 normally falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 2 396, 409 (2009). 3 To establish whether a claimant is disabled under the Act, there must be substantial evidence 4 that:

5 (a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be 6 expected to last for a continuous period of not less than twelve months; and

7 (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other 8 substantial gainful employment that exists in the national economy. 9 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), citing 42 U.S.C. § 423(d)(2)(A). “If a claimant 10 meets both requirements, he or she is disabled.” Id. 11 The ALJ employs a five-step sequential evaluation process to determine whether a claimant 12 is disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. 13 § 404.1520(a). Each step is potentially dispositive and “if a claimant is found to be ‘disabled’ or 14 ‘not-disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 15 180 F.3d at 1098; 20 C.F.R. § 404.1520. The claimant carries the burden of proof at steps one 16 through four, and the Commissioner carries the burden of proof at step five. Tackett, 180 F.3d at 17 1098. 18 The five steps are:

19 Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” within the meaning of the Social Security Act 20 and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step 21 one and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(b).

22 Step 2. Is the claimant’s impairment severe? If not, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant’s 23 impairment is severe, then the claimant’s case cannot be resolved at step two and the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(c). 24 Step 3. Does the impairment “meet or equal” one of a list of specific impairments 25 described in the regulations? If so, the claimant is “disabled” and therefore entitled to disability insurance benefits. If the claimant’s impairment neither meets nor 26 equals one of the impairments listed in the regulations, then the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. See 20 27 C.F.R. § 404.1520(d). 1 Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is “not disabled” and is not entitled to disability insurance 2 benefits. If the claimant cannot do any work he or she did in the past, then the claimant’s case cannot be resolved at step four and the evaluation proceeds to the 3 fifth and final step. See 20 C.F.R. § 404.1520(e).

4 Step 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and therefore entitled to disability insurance benefits. See 20 C.F.R. § 5 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy 6 that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in “significant numbers” in the national 7 economy that claimant can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, 8 subpt. P, app. 2. If the Commissioner meets this burden, the claimant is “not disabled” and therefore not entitled to disability insurance benefits. See 20 C.F.R. 9 §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the claimant is “disabled” and therefore entitled to disability benefits. See id. 10 11 Id. at 1098–99 (internal alterations omitted). 12 III. The ALJ’s Decision 13 At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity since 14 the alleged onset date of May 31, 2020. AR 24. At step two, the ALJ found Plaintiff suffered from 15 the following severe impairments: EDS, degenerative disc disease of the thoracic, cervical, and 16 lumbar spine, bilateral osteonecrosis of the femur and tibia, autism, depression, and anxiety. AR 25. 17 However, the ALJ found all of Plaintiff’s other claimed impairments were either non-severe or 18 insufficiently represented in the record since June of 2020. Id. At step three, the ALJ found that 19 neither Plaintiff’s physical nor mental impairments met or medically equaled the severity of any 20 listed impairments in 20 C.F.R., Part 404, subpt. P, App. 1 (the “Listings”). AR 25-30. 21 In preparation for step four, the ALJ found that Plaintiff had the following residual functional 22 capacity (“RFC”):

23 [P]erform light work as defined in 20 CFR 404.1567(b) except the claimant can lift, carry, push and/or pull 20 pounds occasionally and 10 pounds frequently. The 24 claimant can stand and/or walk for 4 hours in an 8-hour workday. The claimant can occasionally operate foot controls with the bilateral feet, and frequently operate 25 hand controls with the bilateral hands. The claimant can occasionally reach overhead, and frequently reach in all other directions, with the bilaterally upper 26 extremities. The claimant can frequently handle, finger, and feel with the bilateral hands. The claimant can occasionally climb ramps and stairs, and never climb 27 ladders, ropes, or scaffolds. The claimant can occasionally stoop, kneel, crouch, or 1 a motor vehicle. The claimant can occasionally tolerate work in extreme cold, extreme heat, and around vibration. The claimant can understand, remember, and 2 carry out detailed but not complex tasks. The claimant can frequently interact with supervisors, but only occasionally interact with the public and co-workers. 3 4 AR 30. 5 In arriving at this RFC determination, the ALJ considered Plaintiff’s subjective symptom 6 testimony, including testimony regarding his chronic pain, limited mobility, and suicidal thoughts, 7 and found that Plaintiff’s medically determinable impairments could reasonably cause these alleged 8 symptoms. AR 30-37. However, the ALJ determined the alleged intensity, persistence, and limiting 9 effects of the symptoms were not consistent with the medical evidence. Id. In particular, the ALJ 10 noted that Plaintiff’s pain responded well to medical marijuana, and he was receiving no other 11 treatment for pain. AR 32. The ALJ also noted that the record indicated multiple occasions in which 12 different medical providers had recommended physical therapy, but Plaintiff had never followed 13 through with those recommendations. AR 33-34. The ALJ found the record did not support 14 Plaintiff’s testimony that he required a wheelchair as no assistive device for ambulation was ever 15 prescribed. AR 34. Regarding Plaintiff’s mental health symptoms, the ALJ noted the record 16 indicated only a single medication being briefly prescribed for depression, with Plaintiff being 17 resistant to attempting other medications and instead reporting positive results with psychotherapy. 18 AR 34-35. 19 The ALJ also considered the medical opinions of: (1) state agency consultants Hala Abdel 20 Aziz, Susan Ribeiro, Mark Short, and Ana Olivares; (2) Plaintiff’s treating psychologist and 21 pediatrician Michelle Gravley and Wesley Robertson, respectively; (3) Judith Friedman and 22 Stephanie Punt, psychologists at UCLA; and (4) Jill Silverman, a rheumatologist with New York 23 Physicians. AR 37-41. The ALJ found the opinions of the state consultants to be partially to mostly 24 persuasive, save for that of Dr. Ribeiro, noting that Plaintiff’s positive response to treatment coupled 25 with his refusal to attempt physical therapy suggested he was less limited than the reports suggested. 26 AR 38-40. The ALJ also found Drs. Friedman and Punt’s report to be partially persuasive, noting 27 that it did not include a function-by-function analysis or describe Plaintiff’s limitations in 1 Robertson’s opinion to be unpersuasive because they were inconsistent with the relatively 2 unremarkable findings of examinations and Plaintiff’s reported improvement with treatment. AR 3 41. The ALJ found Dr. Gravley’s written statements unpersuasive because they were not written in 4 functional terms and pertained to Plaintiff’s chronic pain, something for which as a psychologist Dr. 5 Gravley did not treat him. AR 37. Finally, the ALJ found Dr. Silverman’s opinion to be 6 unpersuasive because it conflicted with the overall record and Plaintiff’s self-reported improvement 7 with treatment and ability to focus on hobbies for extended periods. AR 41. 8 The ALJ also considered a letter submitted by Plaintiff’s mother, Trudy Para-Killman. The 9 ALJ noted that although Ms. Para-Killman made extreme statements of limitation, she lacked 10 medical training and the record suggested she may not be consistently observing Plaintiff because 11 of her non-profit work. AR 42. The ALJ also noted the record indicated Ms. Para-Killman had 12 repeatedly urged Plaintiff to engage in treatment such as physical therapy, but Plaintiff declined to 13 do so. Id. 14 Step four required no findings because Plaintiff has no past relevant work. Id. At step five, 15 the ALJ concluded that based on Plaintiff’s age, education, work experience, and RFC, there were 16 jobs that Plaintiff could have performed that existed in significant numbers in the national economy. 17 AR 43. The Vocational Expert testified that if Plaintiff were limited to slightly below the light work 18 level, he could perform the following representative occupations: Small Products Assembler (DOT# 19 706.684-022), Inspector (DOT# 559.687-074), and Garment Sorter (DOT# 222.687-014). AR 43. 20 The Vocational Expert also testified that, even if Plaintiff were limited to the sedentary work level, 21 he could still perform the following representative occupations: Table Worker (DOT# 739.687-182), 22 Lens Inserter (DOT# 713.687-026), and Agricultural Sorter (DOT# 521.687-086). Id. 23 Based on the above, the ALJ concluded that Plaintiff “has not been under a disability, as 24 defined in the Social Security Act, from May 31, 2020, through the date of this decision.” AR 44. 25 Therefore, the ALJ denied Plaintiff’s applications for CDB, finding Plaintiff was not disabled under 26 section 223(d) of the Social Security Act through September 11, 2023. AR 45. 27 1 IV. Discussion 2 Plaintiff’s three-page opening brief is divided into three categories: Abuse of Discretion, 3 Abuse of Power/Bias, and Error of Law. ECF No. 16 at 4-6. Under the Abuse of Discretion heading 4 Plaintiff asserts the ALJ improperly discounted the medical opinions of Dr. Robertson, his 5 pediatrician, Dr. Gravley, his psychologist since 2009, and Dr. Friedman, a psychologist with 6 UCLA. Id. at 4. Under the Abuse of Power/Bias heading, Plaintiff asserts the ALJ assigned to his 7 case only approves between 3-14% of disability claims, which Plaintiff argues “is indicative of a 8 general bias towards those with disabilities.” Id. Under the Error of Law heading, Plaintiff cites to 9 several portions of the administrative record as well as several categories of listed impairments under 10 Subpart P, Appendix 1. Id. at 6. Also under this heading, Plaintiff states that at a previous hearing 11 the ALJ “ordered [Plaintiff and his mother] out of her courtroom until [he] hired a lawyer,” which 12 Plaintiff argues was unethical. Id. Separately, and most importantly to this review, Plaintiff avers 13 there is additional evidence to support his claim; that is, Plaintiff represents he has been approved 14 for “PCA hours”1 for assistance with bathing, grooming, and housekeeping, though he includes no 15 such evidence in the more than sixty pages of attachments to his brief. Id. at 5. 16 A. Abuse of Discretion. 17 Under the current regulations for claims filed after March 27, 2017, an ALJ does not “defer 18 or give any specific evidentiary weight to any medical opinions.” Cross v. O’Malley, 89 F.4th 1211, 19 1214 (9th Cir. 2024) (citing 20 C.F.R. § 416.920c(a). When assessing the persuasiveness of a 20 medical opinion, the “most important factors” an ALJ must consider are supportability and 21 consistency. 20 C.F.R. § 404.1520c(b)(2). When determining the persuasiveness of a medical 22 opinion based on these factors, an ALJ must still support his/her findings with substantial evidence. 23 See Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). (“[A]n ALJ cannot reject an examining 24 or treating doctor’s opinion as unsupported or inconsistent without providing an explanation 25 supported by substantial evidence.”). Under the substantial evidence standard, an ALJ must 26 “articulate ... how persuasive” it finds each medical opinion and “explain how [they] considered the 27 1 supportability and consistency factors” in reaching this finding. Id. “Supportability means the extent 2 to which a medical source supports the medical opinion by explaining the relevant ... objective 3 medical evidence.” Id. at 791-92 (internal quotations omitted). “Consistency means the extent to 4 which a medical opinion is ‘consistent ... with the evidence from other medical sources and 5 nonmedical sources in the claim.” Id. (internal quotations omitted). 6 In the present case, Plaintiff challenges the ALJ’s discounting the opinions of Wesley 7 Robertson, M.D., Michelle Gravley, Psy.D, and Judith Leone Friedman, Ph.D. However, Plaintiff 8 provides no legal arguments or citations to the record to support this challenge. ECF No. 16 at 4. 9 Rather, Plaintiff generally refers to the education and experience of these medical providers without 10 indicating how their opinions are supported by the record or which portions of the ALJ’s assessment 11 he believes were erroneous. Nonetheless, the Court liberally construes Plaintiff to be arguing the 12 ALJ did not provide an explanation supported by substantial evidence for discounting the opinions 13 of these three medical providers, and considers the ALJ’s discussion of the opinions in sequence. 14 As the ALJ noted, Dr. Robertson indicated, among other limitations, in an RFC questionnaire 15 that Plaintiff could perform less than the full range of sedentary work and was limited to sitting or 16 standing for less than 2 and half hours per work day. AR 41. The ALJ noted that these severe 17 limitations conflicted with the relatively unremarkable exam findings included in the record, as well 18 as with Plaintiff’s reporting of the effectiveness of medical marijuana in managing his pain. Id. The 19 ALJ also found Dr. Robertson’s report did not include any objective findings on examination to 20 support his conclusions, that Dr. Robertson was not a specialist in EDS, and that portions of Dr. 21 Robertson’s report used relatively vague terms rather than vocationally relevant terms. Id. 22 The Court finds these last two observations to be in error. Nothing in the two-page 23 questionnaire cited by the ALJ indicated that Dr. Robertson’s opinion related to EDS or that Dr. 24 Robertson was holding himself out opining on any particular medical diagnosis. AR 1695-96. 25 Instead, Dr. Robertson, an M.D., appears to offer his general medical opinion regarding Plaintiff’s 26 limitations. Thus, the Court finds a lack of specialization in EDS is not relevant to whether Dr. 27 Robertson’s opinion is of any persuasive value. Further, although the ALJ describes Dr. Robertson’s 1 question is a pre-prepared form in which Dr. Robertson merely checked boxes to indicate his 2 conclusions regarding Plaintiff’s functional capacity. Id. 3 Despite finding the ALJ erred in reaching these findings, the same facts also convince the 4 Court that this error is harmless. An ALJ’s error is harmless where “it is inconsequential to the 5 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 6 (internal quotation omitted); see also Marsh v. Colvin, 792 F.3d 1170 (9th Cir. 2015) (applying 7 harmless error standard when an ALJ ignored the medical opinion of a treating source). Because 8 Dr. Robertson’s opinion consists of a two-page form with no objective findings on examination to 9 support the conclusions indicated within, the fact that these conclusions conflicted with the other 10 medical evidence of record, such as normal movement of all four extremities with full strength and 11 improvement with conservative treatment (AR 1267, 1884) provided clear and convincing reasons 12 for discounting Dr. Robertson’s opinion. The Court is satisfied that the ALJ’s errors with regards to 13 Dr. Robertson’s qualifications and supposed use of vague terms did not affect the ultimate outcome. 14 The ALJ’s consideration of Dr. Gravley’s opinions is limited to two sentences. Specifically, 15 the ALJ says Gravley’s written statements are not persuasive because they are not written in 16 functional terms and address Plaintiff’s physical pain—an area outside the expertise of a Psy.D. and 17 for which she did not treat him. AR 37. While the fact that the ALJ spent so little time considering 18 the opinion of a medical provider who has treated Plaintiff for several years is concerning, the Court 19 again finds this harmless error. A review of the written statements in question reveals they are 20 narrative reports of Plaintiff’s struggles as relayed to Dr Gravley in therapy sessions, rather than 21 opinions on Plaintiff’s functional limitations. See generally, AR 16-18, 1206-07, 1260-61, 1309-12. 22 While the statements indicate Plaintiff discussed his struggles with EDS and chronic pain during 23 therapy, as well as his past negative experiences seeking treatment, the ALJ correctly notes that Dr. 24 Gravley, as Plaintiff’s therapist, did not treat his EDS or chronic pain. Further, while Dr. Gravley 25 mentions Plaintiff’s diagnoses of General Anxiety Disorder and Major Depressive Disorder, 26 conditions for which she was actually treating him, she does so in the context of describing his past 27 struggles with the conditions and provides no opinion on how these conditions would limit Plaintiff’s 1 Although the Court agrees the ALJ could have better explained why Dr. Gravley’s written 2 statements were not useful for the purpose of determining Plaintiff’s RFC, the Court finds the 3 reasons provided by the ALJ are sound. Although Dr. Gravley appears to have treated Plaintiff for 4 a number of years, as a psychologist, she lacks the expertise to opine on Plaintiff’s physical 5 functional limitations. See Bollinger v. Barnhart, 178 Fed.Appx. 745, 746 n. 1 (9th Cir. 2006) (A 6 treating psychologist’s “opinion regarding [claimant]’s physical limitations was beyond her 7 professional expertise as a Ph. D. psychologist”). Therefore, the ALJ was justified in finding Dr. 8 Gravley’s observations regarding Plaintiff’s chronic pain and EDS unpersuasive, when compared to 9 Dr. Aziz’s opinion placing Plaintiff’s RFC at slightly below a light work level, which the ALJ found 10 to be mostly persuasive. AR 37-38 (citing AR 114-127). 11 Further, Dr. Gravley’s observations regarding Plaintiff’s mental impairments, the conditions 12 for which she has been treating him, do not appear to be medical opinions the ALJ was required to 13 consider under 20 C.F.R. § 404.1520c. The regulations define “medical opinion” to mean “a 14 statement from a medical source about what [a claimant] can still do despite [their] impairment(s) 15 and whether [the claimant] ha[s] one or more impairment-related limitations or restrictions” in an 16 enumerated list of functional areas. 20 C.F.R § 404.1513(a)(2). Dr. Gravley’s statements, which 17 are largely duplicative, provide a general outline of Plaintiff’s history of mental health symptoms 18 and the underlying life stressors she believed were exacerbating them. See, e.g., AR 1206-07, 1311- 19 12. Not found in any of these statements is any opinion as to how Plaintiff’s mental health symptoms 20 would limit his functioning in a work setting.2 Thus, the Court finds Dr. Gravley’s statements not 21 to be medical opinions under the regulations, and the ALJ was not required to assess their 22 persuasiveness. 23

24 2 A possible exception to this is Dr. Gravley’s statement that Plaintiff “finds it difficult to connect with others” and primarily interacts with others online. AR 15. This could be reasonably construed as a limitation on Plaintiff’s 25 ability to interact with supervisors, coworkers, or the public in a work setting. See 20 C.F.R § 404.1513(a)(2)(ii) (listing “responding appropriately to supervision, co-workers, or work pressures in a work setting” as a relevant ability in a 26 medical opinion). However, to the extent the ALJ erred by not considering Dr. Gravley’s statements, the Court finds such error to be harmless as the ALJ’s RFC determination already limits Plaintiff to occasional interactions with 27 coworkers and the public, which the ALJ justifies with ample citation to his therapy notes and reported hobbies. AR 35- 1 Finally, the ALJ found Dr. Friedman’s neuropsychological assessment to be partially 2 persuasive, noting that Dr. Friedman’s diagnoses of dysthymia, generalized anxiety disorder, and 3 major depressive disorder were consistent with the overall record. AR 40. The ALJ also noted that 4 Dr. Friedman’s findings on exams supported some level of functional restrictions, but did not include 5 a function by function analysis of Plaintiff’s impairments in vocationally relevant terms. Id. The 6 Court finds this was a valid basis for finding Dr. Friedman’s report only partially persuasive as 7 descriptions that do not specify functional limits are not useful in determining a claimant’s RFC. 8 See Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (“The ALJ found that the doctor’s descriptions 9 of Ford’s ability to perform in the workplace as ‘limited’ or ‘fair’ were not useful because they failed 10 to specify Ford’s functional limits. Therefore, the ALJ could reasonably conclude these 11 characterizations were inadequate for determining RFC.”) (cleaned up). 12 Based on the foregoing, the Court finds the ALJ’s evaluation of the medical opinions of these 13 providers is supported by substantial evidence. To the extent the ALJ erred in failing to consider 14 specific portions of any of the above opinions, such error is harmless. 15 B. Abuse of Power/Bias. 16 Plaintiff references, and attaches to his Reply, an online article purporting to show the rate 17 of approving disability claims of several ALJs stationed in Orland Park, Illinois. ECF No. 19 at 2, 18 5-12. Plaintiff argues that these figures, which indicate the ALJ in this case has approved only 5% 19 of applications before her as of November 2024, establish bias and are grounds for reversal. Id. at 20 2. However, statistics of unrelated rulings by themselves do not suffice to establish bias. See Cope 21 v. Colvin, Case No. 2:15-cv-01744-JRC, 2016 WL 6439940, at *9 (W.D. Wa. Nov. 1, 2016) (“ALJ 22 bias cannot be proven by statistical analysis, but rather any ALJ’s alleged bias must be judged on a 23 case by case basis.”). Rather, Plaintiff must establish a “conflict of interest or some other specific 24 reason” to rebut the presumption that an ALJ is unbiased. Rollins v. Massanari, 261 F.3d 853, 857- 25 58 (9th Cir. 2001). 26 27 1 The only evidence of bias specific to this case that Plaintiff offers is the transcript of the 2 November 22, 2022 hearing,3 which Plaintiff characterizes as showing the ALJ “kicking them out 3 of the hearing.” ECF No. 16 at 6. However, after reviewing the hearing transcript it is apparent that 4 the ALJ was acting in Plaintiff’s interest. Statements by Plaintiff and his mother indicated they had 5 a misapprehension regarding the cost of obtaining representation for the hearing, and the ALJ chose 6 to postpone the hearing to ensure Plaintiff was fully aware of the availability of free representation 7 before choosing to proceed pro se. ECF No. 17. This was well within the ALJ’s discretion and, in 8 any event, does not establish bias. See HALLEX, I-2-3-10(D), 1994 WL 1552640, at *3 (Nov. 25, 9 2024) (“An ALJ may postpone a hearing before the time set for the hearing, or an ALJ may adjourn 10 a hearing that is in progress and continue it later.”). Certainly, the opportunity to obtain free 11 representation at the continued hearing did not prejudice Plaintiff’s application for benefits. The 12 Court finds Plaintiff fails to establish bias. 13 C. Error of Law. 14 Plaintiff cites to several of the listed impairments in the portion of his brief titled “Error of 15 Law,” but provides no argument demonstrating how the ALJ’s consideration of these listings were 16 in error.4 ECF No. 16 at 6. For example, Plaintiff cites to Listings 1.00, 11.00, 12.00, and 14.00, 17 but Plaintiff does not indicate how the ALJ erred when applying these criteria to the facts of his case. 18 Id. Indeed, the ALJ discussed these Listings at length in part three of her analysis, AR 26-30, and 19 Plaintiff at no point specifies which portion of this analysis contains legal error. Similarly, Plaintiff 20 references the “2,400+ pages of documentation” in the Administrative Record, but does not direct 21 the Court to any part of the record that the ALJ either mischaracterized or failed to consider. ECF 22 No. 19 at 2. While the Court recognizes that Plaintiff is proceeding without counsel, the Court will

23 3 Plaintiff also attaches a statement from his mother, though it is not clear whether Plaintiff offers this as evidence of bias or some other purpose. ECF No. 16 at 74. In this statement, Plaintiff’s mother challenges the ALJ’s statement 24 that “Ms. Para-Killman is … busy herself running a non-profit,” and therefore “is not consistently observing [Plaintiff].” AR 42. While the Court agrees this comment was unnecessary, it does not establish bias. The ALJ provided sufficient 25 justification for discounting Ms. Para-Killman’s lay opinion by citing to Plaintiff’s reported daily activities and portions of the record indicating Plaintiff’s refusal to engage in treatment admittedly encouraged by his mother. Id. 26 4 Attached to Plaintiff’s opening brief is a document prepared by Robert Flemming, who represented Plaintiff before the ALJ, though it is unclear whether Plaintiff intends this to support his argument that the ALJ committed an 27 error of law. ECF No. 16 at 39-71. The document, which is thirty-three pages long, appears to quote from various 1 not undertake a fishing expedition of the voluminous record in this case in an attempt to locate 2 evidence to support Plaintiff’s argument. Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 3 (9th Cir. 2003) (“Our circuit has repeatedly admonished that we cannot manufacture arguments for 4 an appellant …. Rather, we review only issues which are argued specifically and distinctly in a 5 party’s opening brief.”) (internal quotations omitted). That is the obligation of the party seeking 6 judicial review, and this burden applies equally to pro se plaintiffs. 7 D. Additional Evidence. 8 In his opening brief, Plaintiff represents that since the ALJ issued her decision, he has been 9 awarded 15.5 “PCA hours” by the state of Nevada to assist him with bathing and personal grooming. 10 ECF No. 16 at 5. Plaintiff presents this assertion as “additional evidence to support [his] inability 11 to perform gainful employment.” Id. Under sentence 6 of 42 U.S.C. § 405(g) the Court has the 12 authority to order additional evidence be considered by the Commissioner, but only “upon a showing 13 that there is new evidence which is material and that there is good cause for the failure to incorporate 14 such evidence into the record in a prior proceeding.” Evidence is “material” if it bears “directly and 15 substantially on the matter in dispute.” Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001). 16 Further, the plaintiff must “demonstrate that there is a reasonable possibility that the new evidence 17 would have changed the outcome of the administrative hearing.” Id. 18 Here, Plaintiff’s opening brief mentions the award of “PCA hours” but provides no actual 19 evidence of such. However, attached to Plaintiff’s Reply is a three-page print out of an unspecified 20 web page that appears to document approval by Medicaid of a “Screening To Determine The 21 Appropriateness” of personal care services on January 24, 2025, followed by approval for 1,612 22 units of personal care for bathing/dressing/grooming, toileting, transferring, mobility/ambulation, 23 housekeeping, laundry, essential shopping, and meal prep. ECF No. 19 at 20-22. 24 Though this screening and subsequent award of personal care hours occurred more than one 25 year after the ALJ’s September 11, 2023 decision, this does not necessarily preclude evidence of 26 such from being material. Many courts have found evidence dated after the final decision of the 27 Commissioner to nonetheless relate to the period before that decision. See Baker v. Colvin, Case 1 Baker, for example, the Northern District of California found that treatment records post-dating the 2 decision of an ALJ were material because they detailed continuing treatment of the same impairment 3 (PTSD) which was the basis of the claimant’s application and “support[ed] the opinions of 4 examining [d]octors … to which the ALJ gave little weight.” Id. at 3. 5 Here, evidence that Plaintiff’s physical impairments are such that he may now require 6 assistance with basic tasks such as bathing and grooming lends support to Dr. Robertson’s opinion 7 that Plaintiff was limited to carrying less than one pound and was unable to bend or kneel, which the 8 ALJ discounted. AR 41. Similarly, because a finding of disability requires a finding that a claimant 9 is unable to work as a result of a medically determinable impairment “which has lasted or can be 10 expected to last for a continuous period of not less than twelve months,” 42 U.S.C. § 1382c(a)(3)(A), 11 there is a reasonable likelihood the ALJ’s decision would have been different had she been presented 12 evidence that, more than twelve months after her decision, Plaintiff would require assistance to 13 perform basic self-care. Indeed, not only did Plaintiff indicate during his hearing that “medical 14 professionals … say [he] should be getting assistance showering,” AR 79-80, but the record indicates 15 Plaintiff needed help with bathing, toileting, and dressing as far back as 2014. AR 854. Although 16 the alleged onset of Plaintiff’s disability was not until 2020, evidence that Plaintiff required such 17 assistance at various periods both before and after the ALJ’s decision is material to whether 18 Plaintiff’s limitations could have been expected to last for at least twelve months as of the time of 19 the ALJ’s decision. 20 Further, although the Commissioner argues Plaintiff “failed to show good cause for the 21 failure to incorporate this evidence earlier in a prior proceeding,” ECF No. 18 at 9, courts have 22 repeatedly found the fact that medical records did not exist at the time of an ALJ’s decision to 23 establish good cause for their late submission. See, e.g., Burton v. Heckler, 724 F.2d 1415, 1418 24 (9th Cir. 1984) (“We hold that the fact that the evidence did not exist at the time of the ALJ’s decision 25 establishes good cause for [claimant]’s failure to introduce it before the ALJ.”). 26 Based on the new evidence provided, the Court finds Plaintiff’s case is properly remanded 27 for purposes of requiring the ALJ to consider this evidence together with other related material 1 V. Order 2 IT IS HEREBY ORDERED that Plaintiff’s Complaint seeking reversal of the ALJ’s decision 3 (ECF No. 6) is GRANTED and the Commissioner’s decision is REVERSED, and this case is 4 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings 5 consistent with this Order. 6 IT IS FURTHER ORDERED that the Clerk of Court shall close this case and enter judgment 7 accordingly. 8 Dated this 18th day of July, 2025. 9 10

11 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27