Maria Casillas Ramos v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: October 31, 2022
• Docket: 5:21-cv-01788
• Status: Unknown

Opinion

Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 1 of 18 Page ID #:576

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIA C. R., Case No. EDCV 21-1788-RAO

12 Plaintiff,

13 v. MEMORANDUM OPINION AND ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social 15 Security, Defendant. 16 17 I. INTRODUCTION 18 Plaintiff Maria R.1 (“Plaintiff”) challenges the Commissioner’s denial of her 19 supplemental security income (“SSI”) under Title XVI, and disability insurance 20 benefits (“DIB”) under Title II of the Social Security Act. For the reasons stated 21 below, the decision of the Commissioner is AFFIRMED. 22 /// 23 /// 24 /// 25

26 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil 27 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United 28 States. Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 2 of 18 Page ID #:577

1 II. SUMMARY OF PROCEEDINGS 2 On August 15, 2019, Plaintiff filed an application for SSI alleging disability 3 beginning on July 28, 2018, due to arthritis of the right knee and use of a cane. 4 (Administrative Record (“AR”) 69, 203-10.) On October 22, 2019, Plaintiff filed an 5 application for DIB, alleging the same disability onset date and cause. (AR 59, 211- 6 12.) The Commissioner denied both claims by initial determination on December 7 10, 2019. (AR 77-78.). Plaintiff requested a hearing before the Administrative Law 8 Judge (“ALJ”). (AR 116, 122.) A hearing was held on January 20, 2021, at which 9 Plaintiff testified. (AR 33-58.) The ALJ issued a decision denying Plaintiff’s 10 applications. (AR 21-28.) The ALJ’s decision became the Commissioner’s final 11 decision on February 10, 2021, when the Appeals Council upheld the ALJ’s decision. 12 (AR 1-5.) Plaintiff filed this action on October 22, 2021. (Dkt. No. 1.) 13 To determine whether Plaintiff was disabled under the Social Security Act, the 14 ALJ followed the familiar five-step sequential evaluation process. Lester v. Chater, 15 81 F.3d 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff has 16 not engaged in substantial gainful activity since July 28, 2018. (AR 23.) At step 17 two, the ALJ found that Plaintiff has the severe impairments of “right knee 18 osteoarthritis and obesity.” (AR 24.) At step three, the ALJ found that Plaintiff did 19 not have an impairment or combination of impairments that met or medically equaled 20 the severity of a listed impairment in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 21 416.920(d), 416.925, and 416.926. (AR 24.) 22 Before proceeding to step four, the ALJ found that Plaintiff has the residual 23 functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. 24 § 416.967(b), except Plaintiff “cannot climb ladders, ropes, or scaffolds; and she can 25 occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl.” (AR 26 24.) At step four, the ALJ found that Plaintiff has the RFC to do her past relevant 27 work as a floral arranger and deli counter worker. (AR 27.) Accordingly, the ALJ 28 2 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 3 of 18 Page ID #:578

1 determined that Plaintiff had not been under a disability since July 28, 2018. (AR 2 28.) 3 III. STANDARD OF REVIEW 4 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 5 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 6 supported by substantial evidence, and if the proper legal standards were applied. 7 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “Substantial evidence . 8 . . is ‘more than a mere scintilla[,]’ . . . [which] means—and means only—‘such 9 relevant evidence as a reasonable mind might accept as adequate to support a 10 conclusion.’” Biestek v. Berryhill, __ U.S. __, 139 S. Ct. 1148, 1154, 203 L. Ed.2d 11 504 (2019) (citations omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). 12 An ALJ can satisfy the substantial evidence requirement “by setting out a detailed 13 and thorough summary of the facts and conflicting clinical evidence, stating his 14 interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 15 (9th Cir. 1998) (citation omitted). 16 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 17 specific quantum of supporting evidence. Rather, a court must consider the record 18 as a whole, weighing both evidence that supports and evidence that detracts from the 19 Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 20 (citations and internal quotations omitted). “‘Where evidence is susceptible to more 21 than one rational interpretation,’ the ALJ’s decision should be upheld.” Ryan v. 22 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart, 23 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins v. Soc. Sec. Admin., 466 F.3d 24 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing 25 the ALJ’s conclusion, we may not substitute our judgment for that of the ALJ.”). The 26 Court may review only “the reasons provided by the ALJ in the disability 27 determination and may not affirm the ALJ on a ground upon which he did not rely.” 28 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 3 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 4 of 18 Page ID #:579

1 F.3d 871, 874 (9th Cir. 2003)). 2 IV. DISCUSSION 3 Plaintiff raises three issues for review: (1) whether the ALJ provided specific, 4 clear, and convincing reasons for discounting Plaintiff’s allegations of pain and 5 physical dysfunction; (2) whether the ALJ improperly relied on outdated medical 6 opinions; and (3) whether Plaintiff’s past work at a grocery store was a composite 7 job, and whether she was able to perform the duties of that job as actually performed 8 in the past. (Joint Stipulation (“JS”) at 2.) For the reasons below, the Court affirms. 9 A. The ALJ Gave Specific, Clear, and Convincing Reasons for 10 Discounting Plaintiff’s Subjective Symptom Testimony 11 1. Applicable Legal Standards 12 Where, as here, the claimant has presented evidence of an underlying 13 impairment and the ALJ did not make a finding of malingering (see AR 24-25), the 14 ALJ must “evaluate the intensity and persistence of [the] individual’s symptoms . . . 15 and determine the extent to which [those] symptoms limit [his or her] . . . ability to 16 perform work-related activities.” Soc. Sec. Ruling (“SSR”) 16-3p, 2017 17 WL5180304, at *4. In assessing the intensity and persistence of symptoms, the ALJ 18 “examine[s] the entire case record, including the objective medical evidence; an 19 individual’s statements . . . ; statements and other information provided by medical 20 sources and other persons; and any other relevant evidence in the individual’s case 21 record.” Id. at *4. The ALJ must provide “specific, clear and convincing reasons” 22 for rejecting the claimant’s statements. Lambert v. Saul, 980 F.3d 1266, 1277 (9th 23 Cir. 2020) (citations and internal quotation marks omitted); Trevizo v. Berryhill, 871 24 F.3d 664, 678 (9th Cir. 2017) (citation omitted). The ALJ must identify what 25 testimony was found not credible and explain what evidence undermines that 26 testimony. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “General 27 findings are insufficient.” Lester, 81 F.3d at 834. 28 /// 4 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 5 of 18 Page ID #:580

1 2. Discussion 2 The ALJ considered Plaintiff’s statements concerning the intensity, 3 persistence, and limiting effects of her knee pain and found the testimony inconsistent 4 with the medical evidence and other evidence in the record. (AR 25.) The ALJ 5 specifically found that Plaintiff’s conservative treatment, the objective medical 6 evidence, and her daily activities undermine her testimony. (AR 25-27.) 7 a. Conservative Treatment 8 An ALJ may discount a claimant’s testimony based on routine and 9 conservative treatment. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) 10 (“[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 11 testimony regarding severity of an impairment.”); see also Meanel v. Apfel, 172 F.3d 12 1111, 1114 (9th Cir. 1999) (rejecting a plaintiff’s complaint “that she experienced 13 pain approaching the highest level imaginable” as “inconsistent with the ‘minimal 14 conservative treatment’ that she received”). Here, the ALJ considered Plaintiff’s use 15 of a brace, a cane, physical therapy, pain medication, steroid injections, and her 16 refusal of surgery to support a finding of conservative medical treatment. (AR 25- 17 26.) The ALJ observed that Plaintiff received knee injections in 2018. (AR 26.) By 18 2019 Plaintiff alleged minimal relief from the injections and did not continue with 19 this treatment. (AR 26, 330-32, 339.) In September 2019, Plaintiff reported 20 temporary relief with Meloxicam and Ibuprofen, but did not want to use Ibuprofen 21 long term. (AR 26, 330.) By December 2020, Plaintiff continued to report pain but 22 declined surgery. (AR 26, 471-72.) 23 Citing Revels, 874 F.3d at 677, and Gilliland v. Saul, 821 F. App’x. 798, 799 24 (9th Cir. 2020), Plaintiff argues that treatment with pain medications and injections 25 does not qualify as conservative treatment. Both cases are distinguishable from the 26 facts at hand. 27 In Revels, the claimant received injections into his neck, back, and hands, and 28 was prescribed several pain medications, “including Valium, Vlector, Soma, 5 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 6 of 18 Page ID #:581

1 Vicodin, Percocet, Neurontin, Robaxin, Trazodone, and Lyrica.” 874 F.3d at 667. 2 The court in Revels cast doubt on the notion that “epidural steroid shots to the neck 3 and lower back qualify as conservative medical treatment” for fibromyalgia. Id. 4 (quoting Garrison v. Colvin, 759 F.3d 995, 1015 n.20 (9th Cir. 2014) (internal 5 quotation omitted). Here, Plaintiff received injections in her right knee (AR 339) and 6 was treated with Ibuprofen and Meloxicam. (AR 26, 330, 333, 416-17.) Although 7 the record shows Plaintiff was also prescribed Duloxetine and Tramadol for pain (AR 8 333, 328-29), by November 2020, Plaintiff stated she was only taking Meloxicam. 9 (AR 459, 472.) During the administrative hearing, Plaintiff testified that she was 10 only taking vitamins and turmeric. (AR 50.) The ALJ observed that Plaintiff 11 reported relief with Motrin, “but did not want to use it chronically.” (AR 26, 330.) 12 Plaintiff’s pain medication treatment is less extensive than, and distinguishable from, 13 the claimant’s treatment in Revels. 14 In Gilliland, the court also found that “several pain medications and trigger 15 point injections” is not conservative treatment for fibromyalgia. 821 F. App’x. at 16 799 (citing Revels, 874 F.3d at 677). Gilliland is distinguishable for the same reasons 17 Revels is distinguishable. Specifically, Plaintiff managed her pain with one 18 medication (Meloxicam). (AR 26, 326, 459, 472-73.) As the ALJ described, 19 Plaintiff’s minimal pain medication treatment is a legitimate reason to reject her pain 20 symptoms. See Parra, 481 F.3d at 751 (the ALJ properly found that claimant’s pain 21 testimony was not credible where conditions were treated with limited pain 22 medication). 23 Plaintiff also argues that the evidence of being recommended for surgery 24 refutes a finding of conservative treatment. (JS at 10.) As Plaintiff points out, and 25 the ALJ observed, Plaintiff ultimately refused surgery. (JS at 10-11; AR 26, 472.) 26 While there are any number of good reasons for not seeking treatment or not 27 following a prescribed course of treatment, “a claimant’s failure to assert one, or a 28 finding by the ALJ that the proffered reason is not believable, can cast doubt on the 6 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 7 of 18 Page ID #:582

1 sincerity of the claimant’s pain testimony.” Fair v. Bowen, 885 F.2d 597, 603 (9th 2 Cir. 1989). Plaintiff contends “it is unreasonable to infer that any hesitancy Plaintiff 3 expressed in moving forward with surgery contradicted her allegations of pain” given 4 the risks of undergoing surgical procedures during the COVID pandemic, in addition 5 to the normal risks of surgery. (JS at 11 n.1.) Although Plaintiff’s reasons could be 6 acceptable under the governing regulations, see 20 C.F.R. Sections 404.1530(c)(3) 7 and 416.930(c)(3), Plaintiff did not assert these reasons before the ALJ. Cf Harris 8 v. Comm'r of Soc. Sec. Admin., 605 F. App'x 612, 614 (9th Cir. 2015) (finding that 9 although an ALJ should not reject a claimant’s credibility if the claimant has good 10 reasons for gaps in treatment, the claimant did not assert her reason before the ALJ). 11 Therefore, the ALJ properly rejected Plaintiff’s pain testimony based on 12 conservative medical treatment. 13 b. Daily Activities 14 Generally speaking, an ALJ may use inconsistencies between a claimant’s 15 testimony and his or her other statements, conduct, and daily activities as a basis for 16 discounting his or her testimony. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 17 (9th Cir. 2001); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); see also 18 Burkett v. Berryhill, 732 F. App’x 547, 552 (9th Cir. 2018) (“While transferability of 19 skills to a work setting is one way in which an ALJ may consider a claimant’s daily 20 activities, an ALJ may also discount claimant testimony where reported daily 21 activities contradict the claimant’s alleged extent of her limitations.”); Tommasetti v. 22 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (holding inconsistencies between 23 symptom allegations and daily activities may act as a clear and convincing reason to 24 discount claimant’s credibility). Here, the ALJ found that, although Plaintiff reported 25 that her pain was aggravated by standing and walking, her admission to dressing and 26 grooming herself, driving, and walking to the park with her grandchildren 27 contradicted her pain testimony. (AR 25, 370.) 28 /// 7 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 8 of 18 Page ID #:583

1 Plaintiff argues that Plaintiff’s daily activities are not inconsistent with her 2 allegations of physical dysfunction, nor do they demonstrate that she could perform 3 the standing or walking necessary for full-time gainful work activity at a light 4 exertional level. (JS at 8.) The Commissioner argues that such evidence is probative 5 of Plaintiff’s ability to perform substantial gainful activity. (JS at 22.) Although 6 Plaintiff is correct that the mere fact a claimant has carried on certain daily activities 7 such as grocery shopping, driving a car, or limited walking for exercise, does not 8 detract from her credibility as to her overall disability, see Vertigan v. Halter, 260 9 F.3d 1044, 1050 (9th Cir. 2001), courts in this circuit have relied on evidence of daily 10 activities to find pain allegations not credible. See Fair, 885 F.2d at 603 (finding the 11 ALJ properly discredited claimants pain allegations based on his ability to care for 12 all of his own personal needs, to perform routine household maintenance and 13 shopping chores, to ride public transportation, and to drive his own car); see also 14 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (affirming an ALJ’s adverse 15 credibility determination reasonable despite “equivocal” testimony about how 16 regularly the claimant engaged in her activities); Burch, 400 F.3d at 680 (affirming 17 the ALJ’s adverse credibility determination where claimant could care for her own 18 personal needs, cook, clean, shop, and interact with her nephew and boyfriend). Even 19 though evidence of Plaintiff’s daily activities could also be interpreted to be more 20 favorable to Plaintiff, the ALJ’s interpretation is rational and should be upheld. See 21 Burch, 400 F.3d at 680. 22 c. Objective Medical Evidence 23 “Although lack of medical evidence cannot form the sole basis for discounting 24 pain testimony, it is a factor that the ALJ can consider in his credibility analysis.” 25 Burch, 400 F.3d at 681. “The rationale for this restriction is that pain testimony may 26 establish greater limitations than can medical evidence alone.” Id. at 680 (citing SSR 27 96-7P, 1996 WL 374186, at *2). 28 /// 8 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 9 of 18 Page ID #:584

1 Here, the ALJ found that during the relevant period, Plaintiff’s body mass 2 index (“BMI”) would be indicative of obesity, and that Plaintiff’s obesity “would 3 reasonably cause additional stress on her knee, and thus increase her pain and 4 compound her limitation.” (AR 26.) The ALJ considered multiple imaging studies 5 of Plaintiff’s knees, including an April 2018 study that showed mild degenerative 6 changes. (AR 26, 384-85.) An MRI from August 2018 “demonstrated mild 7 osteoarthritis, some displacement of the patella, and low-grade chondromalacia.” 8 (AR 26, 363-64.) The ALJ found that an X-ray from May 2019 again demonstrated 9 degenerative changes. (AR 26, 387.) The ALJ considered an MRI from February 10 2020 that demonstrated severe lateral compartment osteoarthritis. (AR 26, 437-39.) 11 The ALJ also found that Plaintiff’s physical examinations throughout the record were 12 often within normal limits, and when abnormalities were indicated, they were 13 “generally limited to tenderness, some swelling, painful range of motion, and an 14 antalgic gait.” (AR 26.) When Plaintiff has exhibited decreased range of motion, it 15 is noted as minimal and “typically demonstrates no limitation in motion of the right 16 knee.” (AR 26.) Lastly, the ALJ noted that Plaintiff generally exhibits full strength 17 in her extremities. (AR 26.) 18 Plaintiff argues that the ALJ failed to explain how she reached her conclusion 19 on whether obesity causes any limitations in accordance with SSR 19-2P, 2019 WL 20 2374244, at *4-5. (JS at 7.) Here, the ALJ did consider multiple entries in the record 21 indicating a BMI range from 31 to 38. (AR 26.) The ALJ recognized that Plaintiff’s 22 obesity would “reasonably cause additional stress on her knee, and thus increase her 23 pain and compound her limitations.” (AR 26.) After considering the evidence, the 24 ALJ concluded that Plaintiff has the RFC to perform light work with some 25 exceptions. (AR 24.) Based on the record, the ALJ adequately considered Plaintiff’s 26 obesity in determining RFC. See Burch, 400 F.3d at 684 (finding that the ALJ 27 properly considered the functional limitations imposed by claimant’s obesity when 28 the ALJ acknowledged physicians’ notes regarding obesity, as well as possible 9 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 10 of 18 Page ID #:585

1 effects of obesity on claimant’s back); see also Paula W. v. Kijakazi, No. 21-04092- 2 DMR, 2022 WL 2439178, at *12 (N.D. Cal. July 5, 2022) (finding the ALJ 3 adequately accounted for the functional limitations posed by claimant’s obesity). 4 Additionally, Plaintiff has not identified, and there is no evidence in the record, of 5 any functional limitations as a result of Plaintiff’s obesity that the ALJ failed to 6 consider. See Burch, 400 F.3d at 684. The Court finds the ALJ properly considered 7 Plaintiff’s obesity. 8 Plaintiff’s argument that the ALJ failed to adequately consider evidence of a 9 complex meniscus tear from the February 2020 MRI lacks merit. (JS at 7.) The 2018 10 MRI showed “mild osteoarthritis of lateral femorotibial joint. (AR 376.) The 2020 11 MRI noted “[s]evere lateral compartment arthritis.” (AR 437-38.) The ALJ 12 incorporated the 2020 MRI evidence by finding that Plaintiff had “severe right knee 13 osteoarthritis” at step two. (AR 24.) In determining Plaintiff’s RFC, the ALJ 14 considered all symptoms and impairments. (AR 24-25.) The ALJ properly consider 15 the 2020 MRI by incorporating its finding that Plaintiff had severe arthritis. 2 16 Lastly, Plaintiff argues that the ALJ’s assertion that the examination evidence 17 was normal is inaccurate, and the ALJ made only a vague reference to Exhibit 2F 18 (AR 322-394) without specifically identifying the evidence that undermines the 19 Plaintiff’s testimony. (JS at 5-6.) “A finding that a claimant’s testimony is not 20 credible ‘must be sufficiently specific to allow a reviewing court to conclude the 21 adjudicator rejected the claimant’s testimony on permissible grounds and did not 22 arbitrarily discredit a claimant’s testimony regarding pain.’” Brown-Hunter v. 23 Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 24 345-46 (9th Cir. 1991)). Here, the ALJ made only general findings regarding 25 2 To the extent Plaintiff argues that the complex tear of the meniscus undermines the 26 ALJ’s conclusion that Plaintiff could perform the six hours of standing/walking 27 necessary for light level work, Plaintiff fails to identify any functional limitations associated with this medical finding. The ALJ considered Plaintiff’s severe arthritis 28 and ultimately decided Plaintiff had the capacity for light work with limitations. 10 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 11 of 18 Page ID #:586

1 Plaintiff’s physical examination history, summarizing instances of tenderness, 2 swelling, range of motion, and gait, and linked those findings to Plaintiff’s pain 3 complaints. (AR 26.) A court may not take a general finding and comb the record 4 to find specific conflicts. Cf Burrell v. Colvin, 775, F.3d 1133, 1138 (9th Cir. 2014) 5 (“Our decisions make clear that we may not take a general finding—an unspecified 6 conflict between Claimant's testimony about daily activities and her reports to 7 doctors—and comb the administrative record to find specific conflicts.”) Therefore, 8 the ALJ failed to provide sufficiently specific evidence to allow the Court to conclude 9 the ALJ properly rejected Plaintiff’s pain testimony. 10 However, the ALJ’s error is harmless because the ALJ relied on other 11 substantial evidence to discredit Plaintiff’s pain testimony. See Carmickle v. 12 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (holding error is 13 harmless if substantial evidence remains to support the ALJ’s credibility finding). 14 Here, the ALJ properly relied on Plaintiff’s conservative treatment and daily 15 activities to discredit Plaintiff’s pain testimony. Because two out of the three reasons 16 the ALJ relied on to discredit Plaintiff’s pain testimony are supported by substantial 17 evidence, the ALJ’s improper reliance on objective medical evidence is harmless 18 error. 19 In sum, two out of the three reasons cited by the ALJ for discounting Plaintiff’s 20 testimony are supported by the record. The Court finds that these reasons are 21 sufficient to uphold the ALJ’s credibility determination. See Carmickle, 533 F.3d at 22 1162-63. 23 B. The ALJ Did Not Have a Duty to Further Develop the Record 24 Plaintiff argues that the ALJ should have consulted with a medical source to 25 determine whether Plaintiff’s February 2020 MRI precluded Plaintiff from 26 performing light level exertion. (JS at 26.) Additionally, the ALJ relied on the 27 medical opinions of two state agency physicians, neither of whom considered the 28 February 2020 MRI. (JS at 25-26.) The Commissioner argues that the ALJ did not 11 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 12 of 18 Page ID #:587

1 have a duty to further develop the record because the record was neither ambiguous 2 nor inadequate. (JS at 30.) The Court agrees with the Commissioner. 3 1. Applicable Legal Standards 4 The ALJ has a special duty to develop the record fully and fairly and to ensure 5 that the claimant's interests are considered, even when the claimant is represented by 6 counsel. Tonapetyan, 242 F.3d at 1150. Where the record evidence contains all of 7 the relevant treatment records and presents no ambiguity or inadequacy, an ALJ has 8 no obligation to develop the record further. See Mayes, 276 F.3d at 459-60 (noting 9 an ALJ’s duty to develop the record further is triggered only when evidence is 10 ambiguous or inadequate to allow for proper evaluation); see also Johnson v. Saul, 11 No. 1:19-CV-01584-SKO, 2021 WL 84377, at *5, 7 (E.D. Cal. Jan. 11, 2021) 12 (finding no obligation to develop the record further where record contained complete 13 treatment records that supported the ALJ's findings, and the record did not present 14 ambiguity or inadequacy). Further development of the record is not always required 15 where the state agency physicians did not have an opportunity to consider updated 16 medical evidence. See, e.g., Smith v. Saul, No. 1:19-CV-01085-SKO, 2020 WL 17 6305830, at *8 (E.D. Cal. Oct. 28, 2020). 18 2. Discussion 19 The ALJ considered both the August 2018 MRI (“2018 MRI”) and the 20 February 2020 MRI (“2020 MRI”). (AR 26.) The 2020 MRI had three major 21 impressions. First, the scan showed a “[c]omplex tear of the anterior horn and body 22 of the lateral meniscus extending into the posterior horn. Severe lateral compartment 23 arthritis is noted.” (AR 437-38.) The 2018 MRI had a similar finding noting “lateral 24 meniscus body nonspecific but likely representing degenerative signal. Subtle 25 degenerative fraying/tear however not entirely excluded in the inner free edge.” (AR 26 376.) Both scans indicated the presence of a meniscal tear. The 2020 MRI indicated 27 “[m]ild chondral degeneration of the medial compartment femoral joint.” (AR 437- 28 38.) The 2018 MRI indicated “[m]ild osteoarthritis of the lateral femorotibial joint, 12 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 13 of 18 Page ID #:588

1 with high-grade chondrosis . . .” (AR 376), suggesting improvement in the femoral 2 joint from high-grade chondrosis in 2018 to mild chondral degeneration in 2020. 3 Lastly, the 2020 MRI noted “[m]oderate lateral patellar subluxation3 in the setting of 4 trochlear dysplasia, suggestive of patellofemoral instability.” (AR 437-38.) The 5 2018 MRI also found “[p]atella alta.4 Nonspecific mild lateral displacement of 6 patella. Correlate[s] clinically regarding patella maltracking.” (AR 376.) Both scans 7 indicated patellar dislocation. 8 Plaintiff’s arguments that the state agency doctors did not consider the new 9 evidence, and that the ALJ should have consulted with a medical source regarding 10 the 2020 MRI are not persuasive. (JS at 25-26.) First, Plaintiff’s implication that the 11 2020 MRI would have changed the opinions of the state agency physicians is mere 12 speculation. See Findley v. Saul, No. 1:18-CV-00341-BAM, 2019 WL 4072364, at 13 *6 (E.D. Cal. Aug. 29, 2019) (finding claimant’s suggestion that the records post- 14 dating the state agency physicians’ opinions would have changed their opinions is 15 mere speculation and not persuasive). Second, Plaintiff does not indicate how the 16 2020 MRI created an ambiguous or inadequate record requiring further development. 17 See Mayes, 276 F.3d at 459-60. The three findings in the 2020 MRI, tear of the 18 anterior lateral meniscus, chondral degeneration of the femoral joint, and patellar 19 subluxation, were also present in the 2018 MRI. Thus, Court finds the 2020 MRI did 20 not create an ambiguous or inadequate record, and the ALJ was not required to further 21 develop the record. 22 /// 23 ///

24 3 “An incomplete luxation or dislocation; although a relationship is altered, contact 25 between joint surfaces remains.” Subluxation, Stedmans Medical Dictionary, available on Westlaw at STEDMANS 859110 (updated Nov. 2014). 26 4 “[T]erm used to describe a somewhat more proximal position of the patella than 27 anticipated when it is visualized on a lateral radiograph of the knee.” Patella Alta, Stedmans Medical Dictionary, available on Westlaw at STEDMANS 661620 28 (updated Nov. 2014). 13 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 14 of 18 Page ID #:589

1 C. The ALJ Properly Determined Plaintiff’s Prior Work at a Grocery 2 Store Was Not a Composite Job 3 Plaintiff argues the ALJ committed error at step four by not categorizing 4 Plaintiff’s past work at a grocery store as a composite occupation. (JS at 33-34.) As 5 such, the ALJ should not have been allowed to consider whether Plaintiff could 6 perform the work as it is generally performed in the national economy. (JS at 34.) 7 The Commissioner contends the evidence supports a finding that Plaintiff’s past work 8 was not that of a composite job, and the ALJ properly determined Plaintiff was able 9 to return to her past relevant work. (JS at 34.) For the reasons discussed below, the 10 Court agrees with the Commissioner. 11 1. Applicable Legal Standards 12 A claimant may be found not disabled at step four based on a determination 13 that they can perform past relevant work as it was actually performed, or as it is 14 generally performed in the national economy. Pinto v. Massanari, 249 F.3d 840, 845 15 (9th Cir. 2001). “The claimant has the burden of proving an inability to return to his 16 former type of work and not just to his former job.” Villa v. Heckler, 797 F.2d 794, 17 798 (1986). “The regulations advise an ALJ to first consider past work as actually 18 performed, and then as usually performed.” Pinto, 249 F.3d at 845 (citing SSR 96- 19 8P, 1996 WL 374184, at *3). 20 There are two sources of information that may be used to define a claimant’s 21 past relevant work as actually performed: a properly completed vocational report, 22 SSR 82-61, 1982 WL 31387, at *2; and the claimant’s own testimony, SSR 82-41, 23 1982 WL 21389, at *4. See Pinto, 249 F.3d at 845. “To ascertain the requirements 24 of occupations as generally performed in the national economy, the ALJ may rely on 25 [Vocational Expert (“VE”)] testimony or information from the [Dictionary of 26 Occupational Titles (“DOT”)].” Jesus P. v. Berryhill, No. EDCV 17-1633-JPR, 2019 27 WL 134552, at *3 (C.D. Cal. Jan. 8, 2019); SSR 00-4P, 2000 WL 1898704, at *2 28 (Dec. 4, 2000); SSR 82-61, 1982 WL 31387, at *2 (Jan 1, 1982). 14 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 15 of 18 Page ID #:590

1 If a prior occupation has significant elements of two or more occupations, and 2 no counterpart in the DOT, it is classified as a “composite job.” Jesus P., 2019 WL 3 134552, at *3 (citing SSA Program Operations Manual Sys. (“POMS”) DI 4 25005.020(B), https://secure.ssa.gov/apps10/poms.nsf/lnx/0425005020 (last visited 5 Sept. 2, 2022)); SSR 82-61, 1982 WL 31387, at *2 (Jan. 1, 1982). If claimant’s past 6 relevant work is a composite job, “the ALJ considers only whether the claimant can 7 perform his past relevant work as actually performed.” Jesus P., 2019 WL 134552, 8 at *3. An ALJ may not define past relevant work according to its “least demanding 9 function.” Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985). 10 2. Background Information 11 Plaintiff completed a work history report and listed all of the jobs she held in 12 the last fifteen years. (AR 254-265.) Plaintiff listed three job titles from August 1999 13 through October 2013, “Box Boy,” “Floral,” and “Bakery.” (AR 254.) These three 14 jobs were “all the same company.” (AR 265.) As a box boy, Plaintiff bagged 15 groceries, collected shopping carts from the parking lot, reshelved items, and would 16 lift groceries in excess of fifty pounds. (AR 255.) Plaintiff worked six hours a day, 17 24 hours a week, at an hourly rate of $7.50. (AR 255.) In the floral department, 18 Plaintiff would fix flower arrangements, take out all the dead flowers, and would lift 19 flower vases to place them on display. (AR 256.) Plaintiff worked eight hours a day, 20 40 hours a week, at an hourly rate of $9.25. (AR 256.) In the bakery department, 21 Plaintiff would bake French bread, stocked the dessert tables, rotated the displayed 22 pastries, and carried pastries to the display tables. (AR 257.) Plaintiff worked eight 23 hours a day, 40 hours a week, at an hourly rate of $14.25. (AR 257.) 24 At the telephonic administrative hearing, Plaintiff testified that she worked in 25 the floral department of a grocery store 13 years ago. (AR 45.) While working in 26 the floral department, her duties were to take the plants from the back and put them 27 in water, care for the plants, put in them in displays, and provide customer service 28 such as making arrangements. (AR 45.) Plaintiff testified that the job was mostly 15 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 16 of 18 Page ID #:591

1 standing and walking, and she sometimes had to lift twenty pounds to move vases. 2 (AR 46.) 3 When asked if she worked any other jobs at the grocery store, Plaintiff 4 testified, “I worked for floral, and then I worked with service deli.” (AR 46.) While 5 working at the grocery store service deli, her duties included customer service and 6 cutting deli meats and cheeses. (AR 47.) The position required mostly standing, 7 walking, and lifting ten to 15 pounds. (AR 47.) 8 At the hearing, the VE identified several classifications of past relevant work 9 including, floral arranger, delicatessen counter worker, and several warehouse 10 positions. (AR 54-55.) The VE classified the title of floral arranger with a specific 11 vocational preparation (SVP) of three and light physical exertion as performed by 12 Plaintiff. (AR 54-55.) The VE classified the title of delicatessen counter worker with 13 an SVP of two and light physical exertion level as performed by Plaintiff. When 14 asked the hypothetical question if an individual could perform any of the Plaintiff’s 15 past work given the RFC described by the ALJ, the VE testified that “the position of 16 a Floral Arranger would be appropriate, both as actually and as generally performed. 17 The position of delicatessen counter worker would only be appropriate as performed 18 by the [Plaintiff], but not as . . . generally performed in the national economy.” (AR 19 55-56.) Plaintiff’s counsel did not question the VE during the hearing. (AR 57-58.) 20 3. Discussion 21 Plaintiff’s argument that the work history report suggests that she performed 22 the duties of three or four jobs simultaneously between August 1999 and October 23 2013 is not persuasive. (JS at 33.) Substantial evidence supports the ALJ’s finding 24 that Plaintiff did not work a composite job. 25 The ALJ defined Plaintiff’s past relevant work as a floral arranger at a light 26 physical demand level, a deli counter worker actually performed by Plaintiff at a light 27 exertional level, and a composite job as a hand packager and marker II. (AR 27.) 28 The work history report identifies three different job titles, each with a different 16 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 17 of 18 Page ID #:592

1 description of job duties and hourly rates while working at the grocery store. (AR 2 255-57.) As a box boy, Plaintiff worked 24 hours a week and 40 hours a week in the 3 floral and bakery departments. (AR 255-57.) At the hearing, Plaintiff testified about 4 her duties in the floral department. (AR 45-46.) When asked about her other jobs at 5 the grocery store, Plaintiff testified “. . . I worked for floral, and then I worked with 6 service deli.” (AR 46.) There is no evidence in the record that contradicts Plaintiff’s 7 testimony or supports that Plaintiff worked a composite job. Plaintiff’s testimony 8 supports the ALJ’s determination that she did not work a composite job as a floral or 9 a deli counter worker. See Pinto, 249 F.3d at 845 (relying on claimant’s own 10 testimony to determine her past work as actually performed); see also Matthews v. 11 Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (finding claimant’s own testimony was 12 highly probative evidence that supported the ALJ’s determination that claimant could 13 return to work). Even if the work history report could be interrupted to mean Plaintiff 14 performed the duties of three or four different jobs, the ALJ’s conclusion must still 15 be updated. Burch, 400 F.3d at 679 (“Where evidence is susceptible to more than 16 one rational interpretation, it is the ALJ’s conclusion that must be upheld.” (citation 17 omitted)). 18 To the extent that Plaintiff argues that further inquiry is required regarding 19 whether Plaintiff performed the duties of a composite job while working at the 20 grocery store, the Court is not persuaded. (JS at 33.) At step four, the burden rests 21 with Plaintiff to show that she worked a composite job. See Hurtado v. Berryhill, 22 No. CV 16-876-AS, 2017 WL 2056165, at *4 (C.D. Cal May 12, 2017), aff’d, 749 F. 23 App’x 663 (9th Cir. 2019) (holding claimant has the burden to show that her prior 24 job had significant elements of two or more occupations). Plaintiff points to the work 25 history report indicating that she would bag groceries for customers and worked in 26 the bakery department as evidence that she performed a composite job between 27 August 1999 and October 2013. (JS at 33.) As discussed above, the substantial 28 evidence supports a finding that Plaintiff did not work a composite job. 17 Case 5:21-cv-01788-RAO Document 20 Filed 10/31/22 Page 18 of 18 Page ID #:593

1 Additionally, Plaintiff did not raise this issue before the ALJ. Plaintiff had an 2 opportunity to question the VE but chose not to. (AR 57-58.) Because Plaintiff did 3 not raise the issues before the ALJ and did not challenge the VE’s testimony at the 4 administrative hearing, the argument is forfeited. See Hurtado, 749 F. App’x at 663 5 (citing Shaibi v. Berryhill, 883 F.3d 1102, 1109-10 (9th Cir. 2017); Meanel, 172 F.3d 6 at 1115). 7 The Court finds that substantial evidence supports the ALJ’s determination 8 that Plaintiff did not work a composite job while employed at the grocery store 9 between August 1999 and October 2013. 10 V. CONCLUSION 11 IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of 12 the Commissioner denying benefits. 13 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 14 Order and the Judgment on counsel for both parties. 15 16 DATED: October 31, 2022 /s/ ROZELLA A. OLIVER 17 UNITED STATES MAGISTRATE JUDGE 18

20 NOTICE

21 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 22 23 24 25 26 27 28 18