Reese v. Commissioner of Social Security

• Court: District Court, S.D. California
• Decided: July 13, 2022
• Docket: 3:20-cv-02524
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GINGER R., Case No.: 20-cv-02524-JLS-JLB

12 Plaintiff, REPORT AND 13 v. RECOMMENDATION RE: (1) PLAINTIFF’S MERITS BRIEF; 14 KILOLO KIJAKAZI, Acting AND (2) DEFENDANT’S Commissioner of Social Security, 15 OPPOSITION TO PLAINTIFF’S Defendant.1 MERITS BRIEF 16

17 [ECF Nos. 17; 18] 18 19 20 This Report and Recommendation is submitted to the Honorable Janis L. 21 Sammartino, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil 22 Local Rule 72.1(c) of the United States District Court for the Southern District of 23 California. 24 On December 30, 2020, Plaintiff Ginger R. (“Plaintiff”) filed this action pursuant to 25 42 U.S.C. § 405(g) seeking judicial review of a final administrative decision by the 26 27 1 Kilolo Kijakazi is hereby substituted as the defendant in this case pursuant to Federal 28 1 Commissioner of Social Security (“Commissioner”) denying her applications for disability 2 insurance benefits (“DIB”) and supplemental security income benefits (“SSI”). (ECF No. 3 1.) 4 Now pending before the Court and ready for decision is Plaintiff’s merits brief in 5 support of her appeal. (ECF No. 17.) The Commissioner filed a cross-motion for summary 6 judgment and opposition to Plaintiff’s merits brief (ECF No. 18),2 and Plaintiff filed a reply 7 (ECF No. 19). For the reasons set forth herein, the Court recommends that Plaintiff’s 8 merits brief be DENIED, that the Commissioner’s cross-motion for summary judgment be 9 GRANTED, and that judgment be entered affirming the Commissioner’s decision. 10 I. PROCEDURAL BACKGROUND 11 On February 19, 2018, Plaintiff filed an application for SSI under Title XVI of the 12 Social Security Act. (AR3 179–91.) On February 20, 2018, Plaintiff also filed an 13 application for a period of disability and DIB under Title II of the Social Security Act. (AR 14 192–96.) In both applications, Plaintiff alleged disability beginning March 1, 2017. (AR 15 179–191, 192–196.) After her applications were denied initially and upon reconsideration 16 (AR 120–24, 127–32), Plaintiff requested an administrative hearing before an 17 administrative law judge (“ALJ”). (AR 133–34.) An administrative hearing was held on 18 June 5, 2020. (AR 34–48.) Plaintiff appeared at the hearing with counsel, and testimony 19 was taken from her, as well as from a vocational expert (“VE”). (See AR 34–48.) 20 As reflected in his June 29, 2020, hearing decision, the ALJ found that Plaintiff had 21 not been under a disability, as defined in the Social Security Act, from March 1, 2017, 22 through the date of decision. (AR 12–33.) The ALJ’s decision became the final decision 23 24 25 2 The Court notes that the Commissioner was to file only an opposition to Plaintiff’s 26 merits brief. CivLR 7.1(e)(6)(e). No other motions were required to be filed for the Court 27 to dispose of the case on its merits. Id. 3 “AR” refers to the Certified Administrative Record filed on July 2, 2021. (ECF No. 28 1 of the Commissioner on October 29, 2020, when the Appeals Council denied Plaintiff’s 2 request for review. (AR 1–6.) This timely civil action followed. (See ECF No. 1.) 3 II. SUMMARY OF THE ALJ’S FINDINGS 4 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 5 evaluation process. See 20 C.F.R. §§ 404.1520(a), 416.920(a). At step one, the ALJ found 6 that Plaintiff had not engaged in substantial gainful activity since March 1, 2017, the 7 alleged onset date. (AR 17.) 8 At step two, the ALJ found that Plaintiff had the following severe impairments: 9 partial onset of generalized seizures, headaches, depression/bipolar and anxiety disorder, 10 and neurocognitive disorder. (AR 17–18.) 11 At step three, the ALJ found that Plaintiff did not have an impairment or combination 12 of impairments that met or medically equaled the severity of one of the impairments listed 13 in the Commissioner’s Listing of Impairments. (AR 18–20.) 14 Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) 15 “to perform light work (lifting and carrying 20 pounds occasionally and ten pounds 16 frequently; sitting six hours out of eight; and standing/walking for six hours out of eight” 17 with the following limitations: 18 She should never climb ropes, ladders or scaffolds; she could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; she should 19 avoid concentrated exposure to temperature extremes and loud noise; she 20 should avoid all exposure to unprotected heights and moving and dangerous machinery; [she] is able to understand, remember, and carry out simple 21 instructions and tasks; she can respond appropriately to supervisors and co- 22 workers in a task-oriented setting where contact with others is casual and brief; she can perform work at a normal pace without production quotas; and 23 she should not work in a setting that includes constant/regular contact with 24 the general public or more than infrequent handling of customer complaints. 25 (AR 20.) 26 For purposes of his step four determination, the ALJ determined that Plaintiff had 27 no past relevant work. (AR 25.) 28 The ALJ then proceeded to step five of the sequential evaluation process. Based on 1 the VE’s testimony that a hypothetical person with Plaintiff’s vocational profile and RFC 2 could perform the requirements of occupations that existed in significant numbers in the 3 national economy (i.e., garment bagger, garment sorter), the ALJ found that Plaintiff was 4 not disabled under the law from March 1, 2017, through the date of decision. (AR 25–26.) 5 III. PLAINTIFF’S CLAIM OF ERROR 6 As reflected in Plaintiff’s merit’s brief, the disputed issue that Plaintiff is raising as 7 the ground for reversal and/or remand is as follows: whether the ALJ’s RFC determination 8 is unsupported by substantial evidence in the record because the ALJ “failed to develop the 9 record by obtaining a non-stale medical opinion regarding Plaintiff’s remaining ability to 10 perform work-like functions.” (See ECF No. 17 at 15–20.) 11 IV. STANDARD OF REVIEW 12 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 13 determine whether the Commissioner’s findings are supported by substantial evidence and 14 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 15 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 16 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 17 Health & Human Servs., 846 F.2d 573, 575–76 (9th Cir. 1988). Substantial evidence is 18 “such relevant evidence as a reasonable mind might accept as adequate to support a 19 conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole 20 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529– 21 30 (9th Cir. 1986). Where evidence is susceptible to more than one rational interpretation, 22 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1453 23 (9th Cir. 1984). In reaching his findings, the ALJ is entitled to draw inferences which 24 logically flow from the evidence. Id. 25 V. DISCUSSION 26 A. Legal Standard 27 An ALJ’s RFC determination “must set out all the limitations and restrictions of the 28 particular claimant.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 1 2009). An ALJ will assess a claimant’s RFC “based on all of the relevant medical and 2 other evidence.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The claimant “is ultimately 3 responsible for providing the evidence to be used in making the RFC finding,” but an ALJ 4 has “a special duty to fully and fairly develop the record and to assure that the claimant’s 5 interests are considered.” Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) 6 (citations omitted). The court must defer to the ALJ’s RFC determination “if the ALJ 7 applied the proper legal standard and his decision is supported by substantial evidence.” 8 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 9 B. The ALJ’s Decision 10 To determine Plaintiff’s RFC, the ALJ considered “all symptoms and the extent to 11 which these symptoms can reasonably be accepted as consistent with the objective medical 12 evidence and other evidence, based on the requirements of 20 C.F.R. §§ 404.1529 and 13 416.929 and [Social Security Ruling (“SSR”)4] 16-3p.” (AR 20.) Additionally, the ALJ 14 also considered Plaintiff’s response to treatment and “the medical opinion(s) and prior 15 administrative medical finding(s) in accordance with the requirements of 20 [C.F.R. §§] 16 404.1520c and 416.920c.” (AR 20.) 17 1. Objective Medical Evidence 18 a. 2017 Medical Records 19 Medical records dated February 7, 2017, indicate that Plaintiff had a history of 20 subependymal gray matter heterotopia partial onset with secondary generalization seizures. 21 (AR 21, 376.) From March 2, 2017 to March 10, 2017, Plaintiff was hospitalized after 22 experiencing three seizures at a routine doctor’s visit. (AR 21, 401.) At a follow-up 23

24 25 4 SSRs are binding on all components of the Social Security Administration. See 20 C.F.R. § 402.35(b)(1). “SSRs do not have the force of law. However, because they 26 represent the Commissioner’s interpretation of the agency’s regulations, [courts] give them 27 some deference.” Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001). Accordingly, the Court will not defer to SSRs “if they are inconsistent with the statute or 28 1 medical appointment, Plaintiff noted that when she was discharged from the hospital in 2 March 2017, she “had been put on Seroquel and did not experience the symptoms while on 3 the medication.” (AR 22, 432–34.) When Plaintiff was on Seroquel, “she was very calm 4 and happy and felt like herself.” (AR 22, 432.) On April 25, 2017, Plaintiff presented to 5 Pioneers Memorial Hospital and reported that she “had a problem with memory and had a 6 history of mood/behavior disorder.” (AR 21, 373.) During this visit, Plaintiff was given a 7 physical and neurological examination, both of which were normal. (AR 21, 373.) 8 Medical records from UC San Diego Health dated October 5, 2017, show that Plaintiff 9 stopped taking Seroquel in May 2017. (AR 22, 432.) Plaintiff developed symptoms of 10 irritability and aggression when she stopped taking Seroquel. (AR 22, 432.) At her visit 11 on October 5, 2017, resident physician Andrew Hannawi advised Plaintiff to restart 12 Seroquel. (AR 434.) On December 4, 2017, Plaintiff presented to Pioneers Memorial 13 Hospital for treatment of a headache. (AR 22, 520–23.) “A physical examination of 14 [Plaintiff] revealed normal results and [Plaintiff] was given a short-course of her 15 medications, released the same day, and instructed to follow up with her physician.” (AR 16 22, 520–23.) 17 b. 2018 Medical Records 18 On January 15, 2018, Plaintiff presented to Pioneers Memorial Hospital and alleged 19 that she experienced a seizure. (AR 22, 505–06.) After undergoing a chest x-ray, an EKG, 20 and lab testing, Plaintiff “was discharged the same day in stable condition and was noted 21 to be ambulatory.” (AR 22, 505–06.) On April 28, 2018, Plaintiff presented for a 22 consultative examination regarding her mental functioning, performed by Jerry R. Livesay, 23 Ph.D. (AR 19, 22‒24 691‒96.) At this visit, Dr. Livesay described Plaintiff as “pleasant, 24 cooperative, and with good eye contact.” (AR 23, 693.) Dr. Livesay diagnosed Plaintiff 25 with depressive disorder and mild neurocognitive disorder. (AR 23, 695.) 26 Medical records from June 2018 indicate that Plaintiff saw a psychiatrist, Ng 27 Bernardo, M.D., at the request of her general practitioner. (AR 23, 964–66.) Dr. Bernardo 28 1 diagnosed Plaintiff with a mood disorder and instructed her to continue taking her 2 medication and to follow-up with her primary care physician. (AR 23, 964–66.) 3 c. 2019 Medical Records 4 From March 11, 2019 to March 14, 2019, Plaintiff underwent inpatient continuous 5 EEG monitoring—a test that monitors the electric sensitivity of the brain. (AR 23, 886– 6 89.) The report that followed indicates that “the EEG monitoring was consistent with 7 evidence to support a diagnosis of focal onset epilepsy.” (AR 23, 886–89.) On July 12, 8 2019, Plaintiff reported to Mary Kay Klockmann, FNP, of the Imperial Valley Family Care 9 Medical Group, that she experienced a seizure two days prior and was taken to the 10 emergency room. (AR 23, 946.) After being observed for several hours during which she 11 was seizure-free, Plaintiff was discharged. (AR 23, 946.) On December 9, 2019, Plaintiff 12 reported to Mary Kay Klockmann, FNP, that she experienced a seizure in October and had 13 not had any since then. (AR 23, 941.) 14 d. 2020 Medical Records 15 On January 22, 2020, Plaintiff reported to Mary Kay Klockmann, FNP, that she 16 stopped taking Keppra earlier that month. (AR 23, 937.) Plaintiff resumed her use of 17 Keppra, and on February 28, 2020, Plaintiff informed Mary Kay Klockmann, FNP, that 18 she had been seizure-free since restarting Keppra. (AR 23, 935.) 19 The ALJ noted that Plaintiff underwent limited mental-health-specific care in 2019 20 and 2020. (AR 24.) The ALJ found that Plaintiff’s medically determinable impairments 21 could reasonably be expected to cause some of the alleged symptoms; however, Plaintiff’s 22 statements about the intensity, persistence, and limiting effects of her symptoms “were not 23 entirely consistent with the medical evidence and other evidence in the record.” (AR 21.) 24 The ALJ summarized Plaintiff’s statements as follows: 25 [Plaintiff] alleged that she began experiencing seizures in 2016 and notes that she had been prescribed seizure medications. She also noted that she 26 experienced migraines. She noted that her driver’s license had been 27 suspended due to seizures. There was an order of suspension/revocation of [Plaintiff]’s license in the record. She has reported that she experienced a 28 1 mental disorder, “body shakes,” and balance problems. She alleged frequent falls and partial onset seizures. The records contained various written 2 submissions from family and friends of [Plaintiff] describing their 3 understanding and/or observations of [Plaintiff]’s impairments, restrictions, and functioning. [Plaintiff] testified that she had experienced one seizure in 4 2020 and that she experienced headaches that lasted an hour to an hour and a 5 half. 6 (AR 21.) 7 The ALJ found several instances throughout the disability period in which Plaintiff’s 8 allegations of disability were not entirely consistent with the objective medical evidence. 9 For example, in March 2017, Plaintiff noted that she did not experience the alleged 10 symptoms while on Seroquel, her prescribed medication. (AR 22, 32–34.) Plaintiff told 11 Dr. Hannawi that while she was on Seroquel, she was “calm, happy, and felt like herself.” 12 (AR 434.) Similarly, a physical and neurological examination in April 2018 “revealed 13 normal results.” (AR 22, 520–23.) 14 2. Opinion Evidence 15 The ALJ also found Plaintiff’s allegations of disability inconsistent with the medical 16 opinions of a consultative examiner, state agency psychological consultants, and state 17 agency medical consultants. As mentioned above, Dr. Livesay performed a consultative 18 examination on Plaintiff regarding her mental functioning on April 28, 2018. (AR 19, 22‒ 19 24, 691‒96.) Dr. Livesay provided the following medical source statement: 20 [Plaintiff]’s ability to perform simple and repetitive tasks was unimpaired. 21 [Plaintiff]’s ability to perform detailed and complex tasks was mildly impaired. [Plaintiff]’s ability to accept instructions from supervisors was 22 unimpaired. [Plaintiff]’s ability to interact with coworkers and the public was 23 unimpaired. [Plaintiff]’s ability to perform work activities on a consistent basis without special or additional instruction was mildly impaired. 24 [Plaintiff]’s ability to maintain regular attendance and complete a normal 25 workday/workweek without interruptions from a psychiatric condition was mildly impaired. [Plaintiff]’s ability to deal with usual stress encountered in 26 the workplace was mildly impaired. 27 (AR 24, 695.) 28 1 Although the ALJ found Dr. Livesay’s opinion only “partially persuasive,” he noted 2 that it was supported by a personal evaluation and Plaintiff’s mental status examination 3 results. (AR 24.) Moreover, Dr. Livesay’s opinion “was consistent with [Plaintiff]’s 4 limited mental health treatment which involved prescription treatment with Seroquel and 5 limited mental health specific treatment.” (AR 24.) 6 State agency psychological consultants, Elizabeth Covey, Psy.D, and Scott F. Kaper, 7 Ph.D, determined on initial review and reconsideration that Plaintiff “appeared capable of 8 understanding, remembering and carrying out short and simple instructions; she was 9 limited to occasional general public contact; and she was capable of adapting 10 appropriately.” (AR 24, 49–79, 82–112.) Both psychological consultants opined that 11 Plaintiff’s statements about the intensity, persistence, and functionally limiting effects of 12 the symptoms were not substantiated by the objective medical evidence alone. (AR 57, 73, 13 90, 106.) The ALJ found the opinions of the state agency psychological consultants only 14 “partially persuasive” such that the ALJ found a more restrictive RFC to be appropriate; 15 however, the opinions were consistent with Plaintiff’s limited mental health treatment and 16 her positive response to prescription treatment. (AR 24.) Further, the opinions “were 17 supported with a detailed narrative explanation with specific cites to the record up to the 18 time of their evaluations.” (AR 24.) 19 State agency medical consultants, Fulvio Franyutti, M.D., and Yvonne Post, D.O., 20 determined on initial review and reconsideration that Plaintiff could work at the light 21 exertional level with the following additional restrictions: “Never climbing ladders, ropes, 22 or scaffolds and occasionally performing all other postural activities. Avoid concentrated 23 exposure to extreme heat and extreme cold and avoid all exposure to hazards.” (AR 24.) 24 The ALJ concluded that the opinions of the state agency medical consultants were 25 “persuasive” because (1) they were supported with a detailed narrative explanation with 26 specific citations to the record; and (2) they were consistent with Plaintiff’s history of a 27 partial onset of generalized seizures which were controlled on medication. (AR 24, 49– 28 79, 82–112.) 1 Finally, the ALJ afforded the third-party statements from Plaintiff’s friends and 2 family members “minimal weight because they were in conflict with the medical evidence 3 of record which generally demonstrated that all of [Plaintiff]’s severe impairments 4 appeared to be medically managed to the extent that they did not preclude all employment.” 5 (AR 25.) 6 C. The Parties’ Arguments 7 As stated above, the sole issue in dispute in this case is whether the ALJ’s RFC 8 determination is supported by substantial evidence. (ECF No. 17 at 15–20.) In support of 9 her argument, Plaintiff proffers two related assertions. First, Plaintiff asserts the ALJ failed 10 to develop the record by neglecting to obtain further opinion evidence before formulating 11 Plaintiff’s RFC. (ECF No. 17 at 16.) Plaintiff notes that there was no “treating source 12 opinion obtained for the record” and that “the only opinion evidence available was from 13 state-requested non-examine sources or one-time consultative examiners.” (Id.) Plaintiff 14 contends that the ALJ erred by failing to obtain an opinion from a treating source, and that, 15 therefore, his RFC determination lacks substantial evidence because it is “based solely on 16 opinions derived from limited to no interaction with [Plaintiff]. . . .” (Id.) 17 Second, Plaintiff argues the ALJ erroneously relied on stale opinions to determine 18 Plaintiff’s RFC. (ECF No. 17 at 17–19.) She notes that the non-examining state agency 19 physicians authored their opinions in May and August 2018, approximately two years 20 before the date of the ALJ’s decision. (ECF No. 17 at 18.) Plaintiff suggests the record is 21 inadequate because the only medical opinions available pre-dated other medical evidence, 22 such as Plaintiff’s “July 2019 admission to the emergency department after a thirty-minute 23 seizure, or her mental health treatment at Imperial County Behavioral Health.” (Id.) Thus, 24 Plaintiff argues that the ALJ should have solicited a more recent medical source opinion 25 because “the state agency consultants’ determinations were clearly stale,” which left the 26 ALJ “to interpret the raw medical data into functional limitations” as a layperson. (Id. at 27 18–19.) 28 /// 1 In its opposition to Plaintiff’s motion, Defendant argues that the ALJ’s RFC 2 determination is supported by substantial evidence, including the objective medical 3 evidence, Plaintiff’s treatment history, and the opinion evidence. (ECF No. 18 at 6.) 4 Specifically, Defendant argues that “Plaintiff, not the ALJ, bore the burden of requesting 5 an opinion from Plaintiff’s treating physician if she believed it would support her DIB and 6 SSI applications.” (Id. at 9.) Moreover, Defendant refutes Plaintiff’s position that the non- 7 examining state agency physicians’ opinions were “stale.” (Id.) Defendant argues that 8 none of their opinions were stale because each of the state agency physicians “evaluated 9 Plaintiff’s capabilities during the alleged disability period.” (Id.) 10 D. Analysis 11 1. Duty to Develop the Record 12 The ALJ must consider all relevant records in its analysis because the RFC must be 13 “based on all the relevant evidence in [the Plaintiff’s] case record.” 20 C.F.R. §§ 404.1545, 14 416.945(a)(1) (emphasis added). The objective medical evidence of record coupled with 15 the opinions of the non-examining state agency consulting physicians constitute substantial 16 evidence supporting the ALJ’s RFC determination. “The opinions of non-treating or non- 17 examining physicians may also serve as substantial evidence when the opinions are 18 consistent with independent clinical findings or other evidence in the record.” Thomas v. 19 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Because the ALJ found their opinions to be 20 “supported with a detailed narrative explanation with specific citations to the record” and 21 “consistent with [Plaintiff’s] history of a partial onset of generalized seizures,” the ALJ 22 met this standard. (AR 24–25.) 23 However, Plaintiff argues “[t]he ALJ failed to discharge his duty to develop the 24 record by obtaining an opinion from treating physician Dr. [Sayed] Monis, [M.D.], 25 ordering a new consultative examination, or at least obtaining an updated state agency 26 consultant opinion that would interpret the medical data from 2019 and 2020.” (ECF No. 27 17 at 20.) 28 /// 1 The ALJ has a special duty to fully and fairly develop the record and to assure that 2 the claimant’s interests are considered. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 3 (9th Cir. 2014). However, it remains the claimant’s duty to prove that she is disabled. See 4 Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Tidwell v. Apfel, 161 F.3d 599, 5 601 (9th Cir. 1999); 20 C.F.R. §§ 404.1512(a), 416.912(a) (“In general, you have to prove 6 to us that you are blind or disabled.”). An ALJ’s duty to further develop the record is 7 triggered only when there is ambiguous evidence or when the record is inadequate to allow 8 for proper evaluation of the evidence. Id. Contrary to Plaintiff’s position that the record 9 is necessarily inadequate because Plaintiff sought additional medical care after the medical 10 opinions were rendered, “[t]he mere existence of medical records post-dating a state agency 11 physician’s review does not in and of itself trigger a duty to further develop the record.” 12 Stivers v. Saul, No. 19-cv-01110-BAM, 2021 U.S. Dist. LEXIS 61358, at *26 (E.D. Cal. 13 Mar. 30, 2021). The Administrative Record is over 1,000 pages and includes Plaintiff’s 14 complete medical treatment records from various providers and medical facilities between 15 2017 and 2020. At the hearing, Plaintiff’s counsel stated that the record was complete and 16 that he was “comfortable saying the record [could] be closed.” (AR 39.) The ALJ was not 17 obligated to further develop the record where Plaintiff’s counsel affirmatively stated that 18 the record was complete. See Stivers, 2021 U.S. Dist. LEXIS 61358, at *26; see also 19 Findley v. Saul, No. 18-cv-00341-BAM, 2019 U.S. Dist. LEXIS 147761, at *19 (E.D. Cal. 20 Aug. 29, 2019) (rejecting argument that the ALJ erred by failing to obtain additional 21 medical opinions in response to new medical evidence and finding the record was not 22 ambiguous or inadequate where the plaintiff’s attorney stated the record was complete). In 23 sum, the ALJ did not err by failing to obtain additional medical source opinions. 24 2. Stale Medical Opinions 25 Although “there may be no outright prohibition on an ALJ relying on outdated 26 medical opinions, the Ninth Circuit has at times looked with skepticism on an ALJ’s 27 reliance on stale medical opinions that do not reflect subsequent deterioration of a 28 claimant’s condition.” Brand v. Kijakazi, No. 20-cv-02219-NJK, 2021 WL 5868131, at *3 1 (D. Nev. Dec. 10, 2021) (citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985) (finding 2 an ALJ erred in relying on opinions that did not account for a later evaluation showing the 3 claimant’s foot condition was progressively deteriorating); Leslie v. Astrue, 318 Fed. 4 App’x. 591, 592 (9th Cir. 2009) (holding that an ALJ erred in relying on opinions that did 5 not account for a more recent suicide attempt)). 6 Here, Plaintiff asserts that the state agency physicians’ opinions were stale because 7 they were authored “two years prior to the ALJ’s June 2020 decision.” (ECF No. 17 at 8 18.) (emphasis in original). However, the age of a medical opinion alone does not render 9 it stale. See David P. v. Saul, No. 19-cv-01506-BEN-AHG, 2020 WL 4593311, at *1 (S.D. 10 Cal. Aug. 11, 2020) (adopting report and recommendation that held a two-year-old medical 11 opinion was not stale), vacated and remanded on other grounds sub nom., Politte v. 12 Kijakazi, No. 21-55341, 2021 WL 5860767 (9th Cir. Aug. 10, 2021). Plaintiff also argues 13 that the opinions were stale because the records relied on by the state agency consultants 14 in their opinions did not include subsequent medical evidence. (ECF No. 17 at 18.) 15 However, to render an opinion stale, “subsequent evidence must be contradictory—or at 16 least inconsistent—with the earlier opinion in some material manner.” Brand, 2021 WL 17 5868131, at *3; see also Digiacomo v. Saul, No. 19-cv-00494-BAM, 2020 WL 6318207, 18 at *8 (E.D. Cal. Oct. 28, 2020) (finding no error when the plaintiff had not identified 19 subsequent records that were “materially inconsistent” with the opinions relied upon). 20 Furthermore, “courts have made clear that the claimant must show that the subsequent 21 evidence ‘would have likely changed the State Agency assessments or the ALJ’s 22 decision.’” Brand, 2021 WL 5868131, at *4. (citing Rudy P.A. v. Kijakazi, No. CV-20- 23 00986-RAO, 2021 WL 3568204, at *4 (C.D. Cal. Aug. 12, 2021)). The Court does not 24 find the subsequent medical records relied on by Plaintiff “materially inconsistent” with 25 her history of a partial onset of generalized seizures, either in kind or in meaningful degree. 26 Digiacomo, 2020 WL 6318207, at *8. Therefore, the Court finds that the ALJ did not err 27 by relying on the state agency physicians’ medical opinions that did not account for 28 Plaintiff’s subsequent medical evidence. 1 Plaintiff cites three cases for the proposition that “the opinions the ALJ relied upon 2 were stale.” (ECF No. 17 at 17–18, citing Rodriguez-Curtis v. Astrue, No. CV-10-02794- 3 VBK, 2011 WL 536598 (C.D. Cal. Feb. 15, 2011); Arriaga v. Berryhill, No. CV-16-0755- 4 TUC-LCK, 2018 WL 1466234 (D. Ariz. Mar. 26, 2018); Huerta v. Astrue, No. 13-CV- 5 01210-WHO, 2014 WL 1866427 (N.D. Cal. May 8, 2014)). The Court finds these cases 6 inapposite. 7 First, Plaintiff cites Rodriguez-Curtis to argue that “[i]f an opinion is stale, the ALJ 8 should obtain a medical opinion that could interpret Plaintiff’s most recent raw medical 9 data into functional limitations.” (ECF No. 17 at 17.) In Rodriguez-Curtis, the ALJ 10 discounted a treating physician’s opinion because it was over four years old. Rodriguez- 11 Curtis, 2011 WL 536598, at *3. On review, the district court held that this was not a 12 specific and legitimate reason to reject the opinion, explaining that the ALJ should have 13 developed the record by ordering another consultative examination if he felt the opinion 14 was stale, rather than rejecting it due to its age. Id. Here, Plaintiff uses the fact that the 15 state agency physicians authored their opinions two years prior to the ALJ’s decision to 16 conclude that the opinions were stale. (ECF No. 17 at 17–18.) Rodriguez-Curtis does not 17 support this proposition. Rodriguez-Curtis does not hold that a four-year-old opinion 18 (much less a two-year-old opinion) is stale, but rather that an ALJ should not reject an 19 opinion for staleness that is not inconsistent with later medical evidence in the record, and 20 certainly not without further developing the record by ordering another consultative exam. 21 Second, Plaintiff relies on Arriaga for the proposition that remand is warranted 22 “where the ALJ bases a claimant’s RFC entirely on the stale opinions of non-examining 23 physicians.” (ECF No. 17 at 17.) The Court finds Arriaga distinguishable. There, the 24 district court held that the ALJ erred by rejecting the opinions of the treating physician 25 without a germane reason, for failing to give any reason for rejecting the opinion of the 26 examining psychologist, and for discounting the plaintiff’s credibility without clear and 27 convincing reasons. Arriaga, 2018 WL 1466234, at *6. As a result of these errors, the 28 court ruled that the case should be remanded. However, the Arriaga court explicitly stated 1 that its ruling did not address whether the ALJ erred by not further developing the record 2 and obtaining the testimony of a vocational expert. See id. The court explained, “Because 3 the Court is remanding the matter for further development, it need not rule on Arriaga’s 4 claim that the ALJ erred in not further developing the record and obtaining the testimony 5 of a vocational expert.” Id. Indeed, the Arriaga court’s criticism of the ALJ’s use of “stale 6 opinions of non-examining physicians” is stated in the context of the ALJ rejecting the 7 opinion of the psychiatric nurse practitioner who examined the plaintiff more recently and 8 where the claimant’s symptoms had become significantly more severe in the intervening 9 time period. Id. 10 Third, Plaintiff relies on Huerta for the same proposition for which she cited 11 Arriaga—that an ALJ may not rely exclusively on a “stale” opinion of a non-examining 12 physician to reach an RFC determination. (ECF No. 17 at 18.) Huerta is also 13 distinguishable. Again, unlike the present case, Huerta considered whether an ALJ errs by 14 relying on an earlier non-examining consultant’s opinion to rebut the conclusions in a 15 treating physician’s more recent report. See Huerta, 2014 WL 1866427, at *15. Here, the 16 ALJ did not rely on more dated opinions of consultative examiners to rebut a treating 17 physician’s opinion to the contrary. Instead, there is no opinion to the contrary in the record 18 in this case. 19 Indeed, none of the three cases cited above by Plaintiff supports her assertion that 20 “courts will remand where the ALJ bases a claimant’s RFC entirely on the stale opinions 21 of non-examining physicians.” (ECF No. 17 at 17.) Because Arriaga and Huerta 22 specifically concern the ALJ’s reliance on older consultative examiners’ opinions 23 compared to more recent opinions of treating sources, Plaintiff’s reliance on these cases is 24 misplaced. Here, the opinions of the non-examining consultants are not rebutted by any 25 other opinion, let alone that of a treating source. 26 Regarding Plaintiff’s assertion that because the ALJ relied on stale opinion evidence 27 he “was left with no updated medical opinion to interpret raw medical data into functional 28 limitations” (ECF No. 17 at 18–19), the Court finds that the ALJ did not err in evaluating 1 medical evidence without the benefit of new medical opinions interpreting it. Some courts 2 have determined that “an ALJ is ‘simply not qualified to interpret raw medical data in 3 functional terms.’” Padilla v. Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal. 2008) 4 (quoting Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)); see Day v. Weinberger, 522 5 F.2d 1154, 1156 (9th Cir. 1975) (citation omitted) (stating that the ALJ, “who [was] not a 6 qualified medical expert, should not have gone outside the record to the medical textbooks 7 for the purpose of making his own exploration and assessment as to claimant’s medical 8 condition”). However, the Court is unaware of any case where the Ninth Circuit has 9 conclusively held that an ALJ may not use or interpret the medical record in a disability 10 determination. “It is clear that it is the responsibility of the ALJ, not the claimant’s 11 physician, to determine the [RFC].” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 12 2001). An ALJ must base their RFC finding “on all the relevant evidence in [one’s] case 13 record,” rather than a single medical opinion or piece of evidence. 20 C.F.R. 14 §§ 404.1545(a)(1), 416.945(a)(1). The ALJ is “responsible for translating and 15 incorporating clinical findings into a succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 16 807 F.3d 996, 1006 (9th Cir. 2015). Accordingly, it was well within the ALJ’s purview to 17 evaluate medical evidence without a treating source opinion interpreting it. See Karen E. 18 v. Berryhill, No. ED CV 17-918-SP, 2019 WL 1405835, at *3 (C.D. Cal. Mar. 27, 2019) 19 (“Certainly it may have been helpful for the ALJ to retain a medical expert to review these 20 records, but it was not necessarily required where, as here, the ALJ reviewed the substantial 21 medical evidence that supported his RFC determination with respect to plaintiff’s lower 22 back pain.”). 23 In sum, the ALJ did not err by failing to obtain further opinion evidence from a 24 treating source before formulating Plaintiff’s RFC. The ALJ correctly based his RFC 25 determination on substantial evidence in the record including the objective medical 26 evidence, Plaintiff’s treatment history, and the opinion evidence. In addition, the Court 27 does not find the opinions relied on by the ALJ to be stale. Thus, the Court concludes that 28 the ALJ did not commit reversible error. I VI. CONCLUSION AND RECOMMENDATION 2 For the reasons discussed above, the Court RECOMMENDS that Plaintiff's merits 3 || brief be DENIED, that the Commissioner’s cross-motion for summary judgment be 4 || GRANTED, and that judgment be entered affirming the Commissioner’s decision. 5 IT IS HEREBY ORDERED that any written objections to this Report and 6 || Recommendation shall be filed with the Court and served on all parties no later than 7 || July 27, 2022. The document should be captioned “Objections to Report and 8 || Recommendation.” 9 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 10 Court and served on all parties no later than August 8, 2022. 1] The parties are advised that failure to file objections within the specified time may 12 || waive the right to raise those objections on appeal of the Court’s order. Turner v. Duncan, 13 |] 158 F.3d 449, 445 (9th Cir 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir 1991). 14 IT IS SO ORDERED. 15 || Dated: July 13, 2022 16 . pb bande 18 n. Jill L. Burkhardt ited States Magistrate Judge 19 20 21 22 23 24 25 26 27 28