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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 PATRICIA D.,1 11 Case No. 8:20-cv-01917-GJS Plaintiff 12 v. 13 MEMORANDUM OPINION AND KILOLO KIJAKAZI, Acting ORDER 14 Commissioner of Social Security, 15 Defendant.
17 18 I. PROCEDURAL HISTORY 19 Plaintiff Patricia D. (“Plaintiff”) filed a complaint seeking review of the 20 decision of the Commissioner of Social Security denying her applications for 21 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 22 The parties filed consents to proceed before the undersigned United States 23 Magistrate Judge [Dkts. 21 and 27] and briefs addressing disputed issues in the case 24 [Dkt. 24 (“Pltf.’s Br.”), Dkt. 29 (“Def. Br.”)], and Dkt. 30 (“Pltf.’s Reply”).] The 25 matter is now ready for decision. For the reasons discussed below, the Court finds 26 that this matter should be affirmed. 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. Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 2 of 19 Page ID #:1603
1 II. ADMINISTRATIVE DECISION UNDER REVIEW 2 Plaintiff filed applications for DIB and SSI alleging disability since April 9, 3 2012, based on both physical and mental impairments. [Dkt. 23, Administrative 4 Record (“AR”) 346-47, 351-356.] Plaintiff alleges disability for back pain, 5 neurogenic bladder, left knee, left ankle, and right hip injury, neuropathy in upper 6 extremities, arthritis, and depression. [AR 674.] On November 18, 2014, after her 7 applications were denied initially and on reconsideration, Plaintiff, represented by 8 counsel, initially appeared at an administrative hearing in Oak Brook, Illinois and 9 testified before Administrative Law Judge (“ALJ”) Joel Fina. [AR 17, 1174-1220.] 10 Also appearing and testifying at the hearing were James McKenna, M.D., an 11 impartial medical expert and Amanda Ortman, an impartial vocational expert. [AR 12 17, 1175.] Because a significant number of records were submitted at the initial 13 hearing on November 18, 2014, and after that hearing, the ALJ held a supplemental 14 hearing on July 14, 2015, with expert testimony. [AR 36, 1219-1220.] Plaintiff 15 again appeared and testified at the supplemental hearing held on July 14, 2015, in 16 Oak Brook, Illinois. [AR 17, 36.] 17 On December 2, 2015, the ALJ concluded Plaintiff was not disabled and 18 issued an unfavorable decision. [AR 17-26; 1247-1256.] The Appeals Council 19 denied review of the ALJ’s decision on December 14, 2016. [AR 1239-1243.] On 20 February 2, 2017, Plaintiff filed a civil action in the Northern District of Illinois. 21 [AR 1226-1235.] On August 18, 2017, the Court issued an Order and Judgment 22 remanding this matter pursuant to a stipulated remand by the parties. [AR 1230- 23 1231.] Shortly thereafter, the Appeals Council issued an order vacating its prior 24 decision and remanded the case back to the ALJ. [AR 1221-1225.] 25 Following remand, ALJ Fina conducted a third administrative hearing from 26 Oak Brook, Illinois on February 20, 2018. [AR 1119-1173.] Plaintiff, represented 27 by counsel, appeared in Orange, California, and testified along with an impartial 28 medical expert and an impartial vocational expert. [AR 1094.] 2 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 3 of 19 Page ID #:1604
1 On April 25, 2018, ALJ Fina issued a second unfavorable decision. [AR 2 1094-1108.] The ALJ applied the five-step sequential evaluation process to find 3 Plaintiff not disabled. See 20 C.F.R. § 416.920(b)-(g)(1). At step one, the ALJ 4 found that Plaintiff had not engaged in substantial gainful activity since the alleged 5 onset date. [AR 1096.] At step two, the ALJ found that Plaintiff suffered from 6 severe impairments including: degenerative disc disease of the lumbar spine, 7 bilateral SI joint pain; degenerative joint disease of the right shoulder status-post 8 repair; carpal tunnel syndrome, status-post bilateral release; diverticulitis; 9 degenerative joint disease of the left shoulder, status-post arthroscopy; and urge and 10 stress incontinence. [AR 1096-1097.] At step three, the ALJ determined that 11 Plaintiff did not have an impairment or combination of impairments that meets or 12 medically equals the severity of one of the impairments listed in Appendix I of the 13 Regulations, (“the Listings”). [AR 1100]; see 20 C.F.R. Pt. 404, Subpt. P, App. 1. 14 Next, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to 15 perform sedentary work with restrictions including:
16 The claimant should never climb ladders, ropes, or scaffolds. She can 17 occasionally crawl and climb ramps and stairs. She can frequently balance, stoop, crouch, and kneel. She can never reach overhead. The 18 claimant must avoid concentrated exposure to vibrations and extreme 19 cold.
20 [AR 1101.] At step four, the ALJ found that Plaintiff was able to perform her past 21 relevant work as a customer service representative, senior service associate, and 22 project manager and that she could perform other work in the national economy. 23 [AR 1107.] 24 The Appeals Council denied review of the ALJ’s decision on July 8, 2020. 25 [AR 1027-1033.] Plaintiff then filed a second civil action in the Northern District of 26 Illinois on July 31, 2020. On September 17, 2020, the Commissioner moved for a 27 change of venue due to the Plaintiff’s residency in California. On October 5, 2020, 28 3 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 4 of 19 Page ID #:1605
1 this appeal was transferred to the United States District Court of the Central District 2 of California. [Dkts. 12, 13.] 3 Plaintiff raises the following issues challenging the ALJ’s findings and 4 determination of non-disability including whether: 5 1. The ALJ improperly failed to account for all of Plaintiff’s severe mental 6 and physical impairments. [Pltf.’s Br. at 6-8.] 7 2. The ALJ failed to properly determine whether Plaintiff met or equaled a 8 Listing. [Pltf.’s Br. at 8-10.] 9 3. The ALJ failed his duty to develop the record. [Pltf.’s Br. at 12-14.] 10 4. The ALJ erred at Step Five by finding that Plaintiff could perform work. 11 The Commissioner asserts that the ALJ’s decision should be affirmed, or in 12 the alternative, remanded for further development of the record if the Court finds the 13 ALJ erred. [Def. Br. at 1-17.] 14 15 III. GOVERNING STANDARD 16 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 17 determine if: (1) the Commissioner’s findings are supported by substantial 18 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 19 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 20 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted). 21 “Substantial evidence is more than a mere scintilla but less than a preponderance; it 22 is such relevant evidence as a reasonable mind might accept as adequate to support a 23 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 24 2014) (internal citations omitted). 25 The Court will uphold the Commissioner’s decision when the evidence is 26 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d 27 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated 28 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he 4 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 5 of 19 Page ID #:1606
1 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not 2 reverse the Commissioner’s decision if it is based on harmless error, which exists if 3 the error is “inconsequential to the ultimate nondisability determination, or if despite 4 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. 5 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations 6 omitted). 7 8 IV. DISCUSSION 9 A. The ALJ’s Step Two Determination Was Proper 10 Plaintiff contends that the ALJ erred at step two when he failed to find her 11 depressive disorder and eye condition severe impairments. [Pltf.’s Br. at 10-11.] 12 The Commissioner argues that substantial evidence supports the ALJ’s finding that 13 Plaintiff did not have a severe mental impairment nor a severe vision limitation. 14 [Def.’s Br. at 2-7.] 15 The Commissioner defines a severe impairment as “[a]n impairment or 16 combination of impairments . . . [that] significantly limit[s] your physical or mental 17 ability to do basic work activities,” including, inter alia: “understanding, carrying 18 out, and remembering simple instructions; use of judgment; responding 19 appropriately to supervision, co-workers and usual work situations; and dealing with 20 changes in a routine work setting.” 20 C.F.R. § 404.1522. “An impairment or 21 combination of impairments may be found not severe only if the evidence 22 establishes a slight abnormality that has no more than a minimal effect on an 23 individual’s ability to work.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) 24 (emphasis added) (citations and internal quotation marks omitted). Step two “is a de 25 minimis screening device [used] to dispose of groundless claims, and an ALJ may 26 find that a claimant lacks a medically severe impairment or combination of 27 impairments only when his conclusion is clearly established by medical evidence.” 28 Id. (emphasis added) (citations and internal quotation marks omitted). The claimant 5 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 6 of 19 Page ID #:1607
1 bears the burden of proof at step two. See Bustamante v. Massanari, 262 F.3d 949, 2 953-54 (9th Cir. 2001). 3 1. Mental Limitations 4 In this case, the ALJ made extensive findings to support his determination 5 that Plaintiff’s mental impairments were not severe. As the ALJ acknowledged, the 6 opinions of the State agency consultants and the testifying independent medical 7 expert were consistent with the overall record which indicated minimal intermittent 8 mental health treatment and complaints. [AR 1097.] First, the ALJ gave “great 9 weight” to the opinions of impartial medical expert, Michael Cremerius, Ph.D., a 10 medical expert in psychology, who testified at the 2015 administrative hearing and 11 the State Agency medical consultants who reviewed Plaintiff’s medical records. 12 [AR 1099.] The ALJ noted that these psychologists examined Plaintiff, noted few 13 abnormal findings, and opined that she had no mental functional limitations. [AR 14 1097-1098.] In weighing this evidence, the ALJ acknowledged Dr. Cremerius’s 15 opinion testimony which concluded that “there really is no severe mental 16 impairment in the record.” [AR 1098, 1133.] Specifically, at the hearing, Dr. 17 Cremerius was of the opinion that, based upon his review of the medical evidence, 18 “there would be no restrictions” related to Plaintiff’s mental functioning. [AR 1136, 19 1147.] 20 Similarly, the ALJ noted that the State agency reviewing psychiatrists, Terry 21 Travis, M.D., and David Gilliland, Psy.D. reviewed Plaintiff’s psychiatric records 22 and concurred that Plaintiff had a mild mental impairment that did not result in 23 functional limitation. [AR 162, 188, 1098.] The ALJ found that their assessments 24 were supported by the record and other evidence demonstrating that Plaintiff’s 25 mental impairments caused no more than a mild limitation. [AR 1099.] This was 26 an appropriate determination. The opinions of non-examining physicians, like the 27 testifying independent medical expert and the State agency medical consultants, 28 may serve as substantial evidence when their opinions “are consistent with 6 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 7 of 19 Page ID #:1608
1 independent clinical findings or other evidence in the record.” Thomas v. Barnhart, 2 278 F.3d 947, 957 (9th Cir. 2002); cf. Neugebauer v. Barnhart, 154 Fed.App’x 649, 3 650 (9th Cir. 2005) (“the ALJ was free to rely on non-treating agency physician 4 reports that contained specific clinical support”). 5 Second, the ALJ was free to reject the contradicted one-time evaluation 6 performed by Dr. Burlingame on February 23, 2013. [AR 685-691, 1097.] The 7 ALJ noted that Plaintiff flew to Washington state to see Dr. Burlingame for a one- 8 time examination for her worker’s compensation claim. [AR 109.] Following that 9 visit, Dr. Burlingame issued a report stating that Plaintiff was severely disabled, 10 severely mentally ill, and “severely, acutely disturbed.” [AR 692.] Moreover, that 11 Plaintiff suffered from bipolar affective disorder with psychotic features—a 12 diagnosis not found anywhere else in the record. [AR 689, 691.] Dr. Burlingame 13 stated that Plaintiff would be unable “to sustain any work” and “her mental status 14 would not ever get along with instructions, other personnel, or the public.” [AR 15 691.] According to Dr. Burlingame, Plaintiff was incapable of performing any 16 significant, meaningful job or occupation. [AR 691.] He assessed a GAF score of 17 35 and he opined that Plaintiff “is ill enough currently to justify in-hospital 18 treatment…for a total duration of six months.” [AR 689-691.] 19 The ALJ noted that Dr. Burlingame’s opinion was heavily contradicted by the 20 opinions of Dr. Cremerius and the state agency examiners and otherwise not 21 supported by the medical record as a whole. [AR 1099.] In rejecting Dr. 22 Burlingame’s opinion, the ALJ relied on Dr. Cremerius’s explicit testimony stating 23 that there was “virtually no support anywhere else in the record” for Dr. 24 Burlingame’s opinion. [AR 1098, 1138.] Specifically, Dr. Cremerius testified in 25 detail regarding the reasons he believed that Dr. Burlingame’s opinion was 26 unreliable. [AR 1135, 1138.] Dr. Cremerius stated that “there was no support for 27 the severity of the psychiatric issues identified [in Dr. Burlingame’s assessment] that 28 somebody would have. With that kind of mental health issues, they would show up 7 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 8 of 19 Page ID #:1609
1 somewhere else other than this one-time evaluation.” [AR 1135.] Dr. Cremeius 2 went on to state: “I would also say her own activities of daily living (ADLs) don’t 3 support it. The review by Dr. Gil doesn’t support it, and neither do the treating 4 source records from Partnership with Families offer any kind of support for that 5 reviewer.” [AR 1135.] 6 The reliance on Dr. Cremerius’s opinion and other evidence in the record to 7 reject Dr. Burlingame’s outlier opinion was specific and legitimate as an ALJ may 8 permissibly reject a medical opinion of a non-treating examining physician that is 9 unsupported by the record as a whole. See 20 C.F.R. § 416.927(c)(4) (“[g]enerally, 10 the more consistent an opinion is with the record as a whole, the more weight we 11 will give to that opinion.”); Batson v. Comm’r, 359 F.3d 1190, 1195 (9th Cir. 2004); 12 Mendoza v. Astrue, 371 Fed. Appx. 829, 831-32 (9th Cir. 2010) (“The ALJ 13 permissibly rejected a medical opinion of a non-treating examining physician that 14 was unsupported by the record as a whole.”). 15 Plaintiff does not provide any reason or argument for why the ALJ should 16 reject the findings of Dr. Cremerius in favor of the unsupported findings by Dr. 17 Burlingame and the Court can find none either. It is the ALJ’s duty to resolve 18 conflicts in the evidence, including conflicting medical evidence from examining 19 and treating physicians. See Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 20 2003) (noting that ALJ may reject the opinion of a treating physician in favor of the 21 conflicting opinions of an examining physician). The Court must affirm the ALJ’s 22 decision even where the evidence is susceptible to more than one rational 23 interpretation. See Molina v. Astrue, 674 F.3d at 1111 (“Even when the evidence is 24 susceptible to more than one rational interpretation, we must uphold the ALJ’s 25 findings if they are supported by inferences reasonably drawn from the record.”). 26 Based on the above, the Court finds that the ALJ did not err in his evaluation of 27 Plaintiff’s mental impairment. 28 /// 8 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 9 of 19 Page ID #:1610
1 2. Vision Impairment 2 Next, Plaintiff argues that the ALJ erred at step two by failing to find her eye 3 condition a severe impairment. According to Plaintiff while she wears glasses, she 4 has “moderate cataract formation,” and she suffers from a “temporal pinguecula” in 5 both eyes, the ALJ ignored evidence of her severe vision impairment. (Pltf.’s Br. at 6 7; Reply at 2.) 7 Plaintiff is correct that the ALJ did not expressly discuss her vision problems 8 at step two. However, while the ALJ did not discuss all of the symptoms 9 accompanying Plaintiff’s eye condition within the step two analysis section of the 10 decision, the ALJ clearly did not ignore these symptoms. Later in the decision, the 11 ALJ explicitly noted that, due to her cataracts, Plaintiff “cannot see at night and that 12 she is planning to get eye surgery in a year.” [AR 1102.] Despite this express 13 acknowledgment, the ALJ simply concluded that this eye condition and its 14 symptoms “ha[d] no more than a minimal effect on [plaintiff’s] ability to work.” 15 Webb, 433 F.3d at 686. Substantial evidence supports this conclusion. 16 Plaintiff has not demonstrated that evidence of her vision impairment did in 17 fact affect her ability to work, even minimally. Plaintiff did not identify any vision 18 problems as a basis for her disability claim, and she has not alleged any specific 19 limitations supposedly resulting from these conditions. “The mere existence of an 20 impairment is insufficient proof of a disability. . . . A claimant bears the burden of 21 proving that an impairment is disabling.” Matthews v. Shalala, 10 F.3d 678, 680 22 (9th Cir. 1993) (citations omitted). 23 Moreover, the record firmly establishes that Plaintiff’s vision impairment was 24 minimal in nature. At the 2014 hearing, James McKenna, M.D., a medical expert, 25 provided testimony regarding Plaintiff’s vision complaints. Dr. McKenna stated 26 that Plaintiff’s cataracts are “not functionally significant.” [AR 139.] Dr. 27 McKenna’s review was based in part on Plaintiff’s visit to an ophthalmological 28 specialist in June 2013 with Richard Bensinger, M.D. [AR 640-45.] Upon 9 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 10 of 19 Page ID #:1611
1 examination, Dr. Bensinger recorded that Plaintiff’s “vision in each eye corrects to 2 20/20.” [AR 643.] He further stated, “[t]he diagnostic impression is that the 3 claimant has normal and healthy eyes.” [AR 643.] Next, Plaintiff attended a 4 separate independent medical examination in September 2013 with Leonard 5 Alenick, M.D. [AR 646-51.] Dr. Alenick noted “great discrepancies” between what 6 Plaintiff reported at his exam, and what she reported to other physicians. [AR 649.] 7 He stated that “my suspicion is that there is no disability from this injury… I would 8 say we have somebody that is engaging in symptom magnification of a great 9 degree.” [AR 650.] Dr. Alenick concluded, “as far as the poor visual performance 10 in my office, I believe she is symptom magnifying.” [AR 651.] He further found 11 that Plaintiff’s vision problems were “typical at her age.” [AR 650.] These medical 12 opinions, which the ALJ found persuasive, furnish substantial evidence supporting 13 the ALJ’s decision that Plaintiff’s vision impairment is nonsevere. 14 But even assuming some error, the Court sees no prejudice to Plaintiff given 15 that the ALJ decided step two in Plaintiff’s favor and went on to consider Plaintiff’s 16 vision difficulties when formulating the RFC. [AR 1102]; see Lewis v. Astrue, 498 17 F.3d 909, 911 (9th Cir. 2007) (failure to identify impairment as severe at step two is 18 harmless where the ALJ considers any limitations posed by the impairment at step 19 four). That the RFC the ALJ ultimately assigned did not include accommodations 20 or exceptions related to Plaintiff’s eye condition does not mean—as Plaintiff 21 suggests—that there was harmful error. It simply reflects the ALJ’s reasonable 22 view that the record evidence did not establish any work-related limitations arising 23 from Plaintiff’s present condition. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th 24 Cir. 2017) (because the ALJ considers all impairments both severe and nonsevere in 25 determining a claimant’s residual functional capacity, “the [residual functional 26 capacity] therefore should be exactly the same regardless of whether certain 27 impairments are considered ‘severe’ or not”). The Court finds no reversible error in 28 the ALJ’s step two findings. 10 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 11 of 19 Page ID #:1612
1 B. The ALJ Did Not Err at Step Three 2 Plaintiff asserts that the ALJ erred at step three of the sequential evaluation 3 process by failing to find her impairments equaled eleven different Listings 4 including 1.02A, 1.02B (joint dysfunction); 1.00B2b, 1.00B2c (musculoskeletal 5 disorders); 1.04A, 1.04B, 1.04C (disorders of the spine); 12.03, 12.04, 12.06 (mental 6 disorders); and 2.00 (visual listings).2 (Pltf.’s Br. at 8-9.) 7 The Listing of Impairments “describes for each of the major body systems 8 impairments [which are considered] severe enough to prevent an individual from 9 doing any gainful activity, regardless of his or her age, education or work 10 experience.” 20 C.F.R. § 416.925. “Listed impairments are purposefully set at a 11 high level of severity because ‘the listings were designed to operate as a 12 presumption of disability that makes further inquiry unnecessary.’” Kennedy v. 13 Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (citing Sullivan v. Zebley, 493 U.S. 14 521, 532, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990)). “Listed impairments set such 15 strict standards because they automatically end the five-step inquiry, before residual 16 functional capacity is even considered.” Kennedy, 738 F.3d at 1176. If a claimant 17 meets the listed criteria for disability, she will be found to be disabled. 20 C.F.R. § 18 416.920(a)(4)(iii). 19 “To meet a listed impairment, a claimant must establish that he or she meets 20 each characteristic of a listed impairment relevant to his or her claim.” Tackett v. 21 Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. § 416.925(d). “To equal a 22 listed impairment, a claimant must establish symptoms, signs and laboratory 23
24 2 Plaintiff makes a related argument that the ALJ failed to apply Grids 201.10, 201.12, and 201.14 at step three. However, Plaintiff misunderstands the sequential 25 evaluation. The Grids are tables that present various combinations of factors the 26 ALJ must consider in determining whether other work is available. See generally Desrosiers v. Sec’y of Health and Human Services, 846 F.2d 573, 577-78 (9th Cir. 27 1988). As such, the Grids are not applied until step five of the sequential evaluation. Because the Grids are inapplicable at step three, the Court disregards that portion of 28 Plaintiff’s argument. 11 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 12 of 19 Page ID #:1613
1 findings ‘at least equal in severity and duration’ to the characteristics of a relevant 2 listed impairment . . .” Tackett, 180 F.3d at 1099 (emphasis in original) (quoting 20 3 C.F.R. § 404.1526(a)). “If a claimant suffers from multiple impairments and none 4 of them individually meets or equals a listed impairment, the collective symptoms, 5 signs and laboratory findings of all of the claimant’s impairments will be evaluated 6 to determine whether they meet or equal the characteristics of any relevant listed 7 impairment.” Id. However, “[m]edical equivalence must be based on medical 8 findings,” and “[a] generalized assertion of functional problems is not enough to 9 establish disability at step three.” Id. at 1100 (quoting 20 C.F.R. § 404.1526(a)); 20 10 C.F.R. § 416.926(a). 11 The claimant bears the burden of establishing her impairment (or combination 12 of impairments) meets or equals the criteria of a listed impairment. Burch v. 13 Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). “An adjudicator’s articulation of the 14 reason(s) why the individual is or is not disabled at a later step in the sequential 15 evaluation process will provide rationale that is sufficient for a subsequent reviewer 16 or court to determine the basis for the finding about medical equivalence at step 3.” 17 SSR 17-2P, 2017 SSR LEXIS 2, 2017 WL 3928306, at *4 (effective March 27, 18 2017). 19 Plaintiff contends the ALJ failed to “go through the elements of each Listing” 20 she set forth at step three. (Pltf.’s Br. at 9-10.) However, the Court notes two errors 21 in Plaintiff’s argument. 22 First, “[i]t is unnecessary to require the [ALJ], as a matter of law, to state why 23 a claimant failed to satisfy every different section of the listing of impairments.” 24 Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990). The regulations do not 25 require the ALJ to list out and analyze every subsection of a given listing. Rather, 26 the regulations merely require the ALJ to undergo a careful review of the claimant’s 27 symptoms on the record. Further, there is no requirement that the ALJ’s discussion 28 of the evidence must occur at the step three determination. Lewis v. Apfel, 236 F.3d 12 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 13 of 19 Page ID #:1614
1 503, 513-14 (9th Cir. 2001) (ALJ must discuss and evaluate evidence that supports 2 step-three conclusion but need not do so under a specific heading). The ALJ does 3 not err by discussing the evidence supporting his conclusion in other sections of his 4 decision as the ALJ did here. See Gonzalez, 914 F.2d at 1200-01 (finding no error 5 when ALJ failed to state or discuss evidence supporting conclusion that claimant’s 6 impairments did not satisfy Listing but “made a five page, single-spaced summary 7 of the record”). 8 Here, in finding that Plaintiff’s impairments and combinations of impairments 9 did not meet or equal any listings, the ALJ generally considered musculoskeletal 10 impairments under Listing 1.00 and paid specific attention to sections 1.02 (major 11 dysfunction of joint), 1.04 (disorders of the spine), 5.00 (digestive disorders) and 12 11.14 (peripheral neuropathy) of the listing of impairments. [AR 1100-1101.] 13 Then, at step four, the ALJ dedicated several single-spaced pages to summarizing 14 and analyzing the medical evidence and Plaintiff’s testimony [AR 1101-1106.] 15 Because those findings were sufficient to support the ALJ’s step-three conclusion 16 that Plaintiff’s impairments did not meet or equal a Listing, he did not err. 17 Second, the ALJ “is not required to discuss the combined effects of a 18 claimant’s impairments or compare them to any listing in an equivalency 19 determination, unless the claimant presents evidence in an effort to establish 20 equivalence.” See Burch, 400 F.3d at 683 (affirming the district court’s finding that 21 the claimant “bears the burden of proving that ... she has an impairment that meets 22 or equals the criteria of an impairment listed in Appendix 1 of the Commissioner’s 23 regulations”). 24 Here, Plaintiff has failed to point to any credited evidence of functional 25 limitations, with record citations, explaining how she meets the numerous Listings 26 referenced. Nor has she offered any plausible theory of how the combination of her 27 impairments equaled a Listing. Thus, Plaintiff has failed to demonstrate the ALJ 28 erred, “as a matter of law,” simply because he did not specifically identify Listings 13 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 14 of 19 Page ID #:1615
1 1.00B2b (inability to ambulate effectively), 1.00B2c (inability to perform fine and 2 gross movements effectively), 12.03 (schizophrenic, paranoid, and other psychotic 3 disorders), 12.04 (depressive and bipolar related disorders), 12.06 (anxiety and 4 obsessive-compulsive disorders), or 2.00 (visual listings) when determining Plaintiff 5 did not meet a listed impairment at step three.3 Lewis, 236 F.3d at 514 (finding the 6 ALJ did not err at step three when the plaintiff offered no theory, plausible or 7 otherwise, as to how his impairments combined to equal a listed impairment or 8 pointed to evidence showing his combined impairments equal a listed impairment). 9 Therefore, the Court concludes Plaintiff has failed to show the ALJ erred at step 10 three of the sequential evaluation process. 11 C. The ALJ’s Duty to Develop the Record 12 Plaintiff contends the ALJ was required to develop the record further with an 13 “examination or evaluation by a consultative neurologist, orthopedist or other 14 relevant specialist” to determine the extent of her limitations. (Pltf.’s Br. at 12-13.) 15 According to Plaintiff, the ALJ should have retained the services of additional 16 medical experts instead of relying on “his own lay assessment” of her subjective 17 symptom testimony. (Pltf.’s Br. at 12-13.) While not entirely clear, it appears that 18 Plaintiff is arguing that the ALJ’s interpretation of her subjective symptom 19 testimony should have been performed by a medical expert and not the ALJ. This 20 argument is unavailing. 21 It is unquestionable that the record in this case has been fully developed. The 22
23 3 Furthermore, while Plaintiff’s identifies Listings for visual impairments (2.00) and mental impairments (12.04 and 12.06), as discussed above, the ALJ 24 declined to find those impairments severe. Only if an impairment is “severe,” is the Commissioner required to move to the next step of his analysis and determine 25 whether the severe impairment(s) meet or medically equal a Listed impairment. See, 26 e.g., Washington v. Astrue, 698 F. Supp. 2d 562, 581 (D.S.C. Mar. 17, 2010) (finding ALJ need not evaluate whether an impairment found to be nonsevere 27 satisfies a particular listing). Because the ALJ did not find Plaintiff’s mental and visual impairments to be “severe,” there was no reason for him to assess whether 28 those impairments met or equaled a Listing. 14 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 15 of 19 Page ID #:1616
1 ALJ called independent medical experts to testify at three separate administrative 2 hearings in 2014, 2015, and 2020. [AR 37, 1037, 1177.] Beyond that, Plaintiff was 3 referred to at least two different consultative examinations in 2014. [AR 667, 674, 4 679.] Moreover, Plaintiff was represented by an attorney at the administrative level 5 and had an opportunity to provide any evidence she believed would support her 6 claim. [AR 38.] By arguing that the ALJ should have elicited even more expert 7 testimony under these circumstances, Plaintiff is attempting to shift the burden to 8 prove disability, however it is her duty to prove that she disabled. 20 C.F.R. § 9 404.1512(a)(1) (“In general, you have to prove to us that you are . . . disabled. You 10 must inform us about or submit all evidence known to you that relates to whether or 11 not you are blind or disabled (see § 404.1513). This duty is ongoing and requires 12 you to disclose any additional related evidence about which you become aware.”). 13 The ALJ is not a roving investigator; his duty “to develop the record further is 14 triggered only when there is ambiguous evidence or when the record is inadequate 15 to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 16 459-60 (9th Cir. 2001); see Webb, 433 F.3d at 683 (explaining that the duty to 17 enlarge the record only arises if the evidence is ambiguous, the ALJ finds that the 18 record is inadequate, or the ALJ relies on an expert’s conclusion that the evidence is 19 ambiguous). 20 Here, the record contained ample evidence concerning Plaintiff’s limitations 21 to allow the ALJ to determine if Plaintiff suffered from a disabling condition; and 22 that evidence was appropriately evaluated by the ALJ. There was no requirement in 23 these circumstances that the ALJ seek out additional records not presented by 24 Plaintiff, as the record was neither ambiguous nor inadequate to permit a full and 25 proper evaluation of Plaintiff’s impairments. Moreover, although Plaintiff argues 26 that the ALJ committed error when he relied on his own “lay assessment” to 27 interpret her symptom testimony, this case is far afield from the typical cases 28 addressing an ALJ’s lay medical interpretation which often speak of an ALJ 15 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 16 of 19 Page ID #:1617
1 impermissibly interpreting “raw medical data” such as complex imaging and 2 laboratory testing results. See, e.g., Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 3 1999) (ALJ formulated claimant’s residual functional capacity based on magnetic 4 resonance images without the benefit of any medical opinion about the functional 5 limitations attributable to the impairments depicted in the images); Goodman v. 6 Berryhill, No. 2:17-CV-01228 CKD, 2019 U.S. Dist. LEXIS 564, 2019 WL 79016, 7 at *5 (E.D. Cal. Jan. 2, 2019) (finding that the ALJ erred in adopting state agency 8 consultants’ opinions which were rendered before “plaintiff sustained a fall in 9 November 2014” and before “an April 2015 MRI of the lumbar spine [which] 10 showed L1 compression deformity with worsened kyphosis . . .”). Such is not the 11 case here. 12 Plaintiff does not identify what evidence she contends is unsusceptible to a 13 lay understanding or why. Rather, Plaintiff’s argument is predicated on the 14 incorrect assumption that, as a matter of law, an ALJ is unqualified to independently 15 interpret her subjective symptom testimony. Practically speaking, the ALJ’s 16 primary role is to evaluate and synthesize all the medical and non-medical evidence 17 in the record to arrive at the RFC findings. 20 C.F.R. 404.1545(a)(3) (“We will 18 assess your residual functional capacity based on all of the relevant medical and 19 other evidence.”). Accepting Plaintiff’s argument would mean that the ALJ is 20 always precluded from reviewing such testimony and must obtain a consultative 21 examination in essentially every case. As explained above, there is no such legal 22 requirement absent evidentiary ambiguity or the presence of pertinent medical 23 records unsusceptible to lay understanding. Because Plaintiff does not establish that 24 these criteria were met here, there is no basis to find that the ALJ erred in failing to 25 further develop the record with an additional examining or reviewing opinion. 26 D. Substantial Evidence Supports the ALJ’s Step Five Finding 27 As a final matter, Plaintiff argues that the ALJ’s finding that she could 28 perform her past relevant work or other sedentary work as it exists in the national 16 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 17 of 19 Page ID #:1618
1 economy is not supported by substantial evidence. (Pltf.’s Br. at 14-15.) 2 Specifically, Plaintiff argues that (1) she must nap for an hour during the day; and 3 (2) Dr. Thomas Gritzka, a workers’ compensation evaluator, determined that 4 “because of her right buttock pain…without treatment, in combination with 5 psychological factors affecting physical condition, [Plaintiff] would probably miss 6 work 3 or more times per month.” [AR 615; Pltf.’s Br. at 14.] Because the ALJ 7 erroneously failed to incorporate these limitations into her RFC, Plaintiff argues, the 8 ALJ’s ultimate finding that she could perform her past relevant work or other 9 sedentary work with restrictions is flawed. [AR 615.] The Court again disagrees 10 with Plaintiff’s position. 11 At step four of the disability determination, it is the claimant’s burden to 12 demonstrate she cannot perform her past relevant work. Carmickle v. Comm’r, Soc. 13 Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (citations omitted); Pinto v. 14 Massanari, 249 F.3d 840, 844 (9th Cir. 2001). If a claimant can perform her past 15 relevant work, then she is not disabled. 20 C.F.R. § 404.1520(e); Lewis, 236 F.3d at 16 515. At step five of the sequential analysis, the RFC is an assessment of an 17 individual’s ability to do sustained work-related physical and mental activities in a 18 work setting on a regular and continuing basis of eight hours a day, for five days a 19 week, or equivalent work schedule. SSR 96-8p, 1996 SSR LEXIS 5. The RFC 20 assessment considers only functional limitations and restrictions which result from 21 an individual’s medically determinable impairment or combination of impairments. 22 SSR 96-8p, 1996 SSR LEXIS 5. “In determining a claimant’s RFC, an ALJ must 23 consider all relevant evidence in the record including, inter alia, medical records, lay 24 evidence, and ‘the effects of symptoms, including pain, that are reasonably 25 attributed to a medically determinable impairment.’” Robbins v. Social Security 26 Admin., 466 F.3d 880, 883 (9th Cir. 2006). 27 Plaintiff’s argument regarding the ALJ’s findings at step four and step five is 28 not well taken. That Plaintiff takes issue with the fact the ALJ did not incorporate 17 Case 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 18 of 19 Page ID #:1619
1 every limitation Plaintiff desires does not amount to error. In this matter, the ALJ 2 found that Plaintiff had the RFC to perform sedentary work with additional 3 limitations, and the VE testified that a hypothetical individual with such an RFC 4 could perform Plaintiff’s past relevant work as well as several other jobs. In doing 5 so, the ALJ gave “significant weight” to Dr. Gritzka’s 2013 report as follows: 6 In a report dated January 29, 2013, Thomas L. Gritzka, M.D. opined 7 the claimant could perform sedentary to sedentary light jobs which 8 allowed her to work at her own pace, to sit and stand as needed and do no lifting over 15 pounds on an occasional basis. 9
10 [AR 1104]. Thus, like Dr. Gritzka, the ALJ found that Plaintiff could perform 11 sedentary work and the hypothetical the ALJ gave to the VE closely corresponds 12 with the RFC he ultimately assigned to Plaintiff. 13 Plaintiff does not argue that the hypothetical posed to the VE failed to include 14 all the limitations found in her RFC. Instead, Plaintiff contends that her daily naps 15 and the likelihood she would miss work three days a month precludes her from 16 completing “employment of any kind” as the various vocational experts testified 17 that an individual who would miss more than one day a month would be precluded 18 from employment. (Pltf.’s Br. at 14.) However, an ALJ is not obliged to accept as 19 true all limitations alleged by Plaintiff and may decline to include such limitations in 20 the vocational expert’s hypothetical if they are not supported by sufficient evidence. 21 See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008) (rejecting 22 claimant’s contention that ALJ erred at step five by failing to account for her 23 limitations in the ALJ’s hypothetical where claimant “simply restates” a prior RFC 24 argument); Contreras v. Berryhill, No. 1:15-cv-01483-BAM, 2017 U.S. Dist. 25 LEXIS 38174, at *30 (E.D. Cal. Mar. 15, 2017) (A claimant fails to establish that a 26 step 5 determination is flawed by simply restating argument that the ALJ improperly 27 discounted certain evidence, when the record demonstrates the evidence was 28 18 Cas@ 8:20-cv-01917-GJS Document 31 Filed 02/23/22 Page 19o0f19 Page ID #:1620
1 || properly rejected.). 2 “Hypothetical questions posed to the vocational expert must set out all the 3 || limitations and restrictions of the particular claimant .. ..” Embrey v. Bowen, 849 4 || F.2d 418, 422 (9th Cir. 1988). The testimony of a VE “is valuable only to the extent 5 || that it is supported by medical evidence.” Sample v. Schweiker, 694 F.2d 639, 644 6 || (9th Cir. 1982). The VE’s opinion about a claimant’s residual functional capacity 7 || has no evidentiary value if the assumptions in the hypothetical are not supported by 8 || the record. Embrey, 849 F.2d at 422. Nevertheless, an ALJ is only required to 9 || present the VE with those limitations he finds to be credible and supported by the 10 || evidence. Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001). Here, the 11 || ALJ posed a number of hypothetical questions to the VE setting out the various 12 || limitations and restrictions. Plainly, the ALJ’s RFC is based upon those limitations 13 || he found to be credible and supported by the evidence. 14 In conclusion, the ALJ did not err at step four or step five regarding either the 15 || RFC or hypothetical questions posed, and his findings are supported by substantial 16 || evidence. Accordingly, remand is not warranted on this basis. 17 18 Vv. CONCLUSION 19 For all of the foregoing reasons, IT IS ORDERED that the decision of the 20 || Commissioner finding Plaintiff not disabled is AFFIRMED. 21 22 IT IS SO ORDERED. 23 24 || DATED: February 23, 2022 25 26 77 GAIL'J. STANDISH UNITED STATES MAGISTRATE JUDGE 28 19