Ronald Hardin v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 10, 2023
• Docket: 22-16517
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RONALD M. HARDIN, No. 22-16517

Plaintiff-Appellant, D.C. No. 3:21-cv-08060-DGC

v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Submitted September 13, 2023** Phoenix, Arizona

Before: GOULD, HURWITZ, and BUMATAY, Circuit Judges.

Ronald Hardin appeals from the judgment of the district court affirming the

final decision of the Commissioner of Social Security denying Hardin’s application

for disability insurance benefits and supplemental security income. Hardin

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). contends that the residual functional capacity (“RFC”) determination by the

Administrative Law Judge (the “ALJ”) is not supported by substantial evidence

because the ALJ: (1) failed to develop the record; and (2) improperly relied upon

outdated medical opinions. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

1. The ALJ did not err by declining to order an updated expert

examination of Hardin after his back surgeries. “An ALJ’s duty to develop the

record further is triggered only when there is ambiguous evidence or when the

record is inadequate to allow for proper evaluation of the evidence.” Mayes v.

Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001).

a. The record here contains the treating physicians’ notes about each of

Hardin’s surgeries. It is undisputed that Hardin’s first surgery resulted in

complications. The second surgery—intended to correct those

complications—is not alleged to have produced any significant negative

results. State agency medical consultant Dr. F. Kalmar reviewed both of

these surgeries.

b. There is no indication that Hardin’s third and final surgery—the only one

not reviewed by an expert—produced any negative effects. Although

Hardin claims that an “additional impairment” arose at some time after

the third surgery, his support for this statement is merely a list of his

2 medical conditions throughout the relevant period. For example, Hardin

describes his “limited functional range of motion”—something that was

noted by two examining physicians before Hardin’s surgeries. He urges

that he had “three cervical surgeries” and “applications of medical branch

blocks,” but there is no reason to presume that these procedures intended

to correct his condition instead worsened it. Because Hardin has not

pointed to any material change in his condition after the medical experts’

examinations, the ALJ was not obligated to further develop the record.

2. The ALJ did not improperly rely on outdated medical opinions. An

expert’s opinion is not automatically rendered unreliable if it does not account for

every procedure that a claimant has undergone before the date of his hearing.

Hardin acknowledges this but contends that the Ninth Circuit has at times been

skeptical about an ALJ’s reliance on “stale medical opinions that do not reflect a

subsequent deterioration of a claimant’s condition.” Brand v. Kijakazi, 575 F.

Supp. 3d 1265, 1269 (D. Nev. 2021).

a. The ALJ specifically considered whether Hardin’s third surgery rendered

the opinion evidence in the record outdated and presented “specific, clear

and convincing reasons” why it did not. Smith v. Kijakazi, 14 F.4th 1108,

1112 (9th Cir. 2021) (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15

(9th Cir. 2014)). The ALJ noted that “[the] [e]xamination following the

3 procedure was unremarkable and [Hardin] was discharged in good

condition with no restrictions, only ‘activity as tolerated’ . . . . There is no

evidence of complications following the procedure.”

b. We reject Hardin’s contention that the ALJ’s assessment of the third

surgery represents an improper lay assessment of medical evidence.

“Inherent in th[e] standard [for evaluation of medical evidence] is a

presumption that ALJs are, at some level, capable of independently

reviewing and forming conclusions about medical evidence.” Farlow v.

Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022). The treatment notes

following Hardin’s third surgery were unambiguous and did not require

expert interpretation.

3. The ALJ reasonably determined that Hardin’s condition had not

materially changed after his examination by the medical experts. The ALJ gave

appropriate weight to the three expert reports, all of which were consistent with an

RFC of medium work. Together with other evidence of Hardin’s daily activities

and treatment, the ALJ supported his RFC determination with substantial evidence.

The district court did not err.

AFFIRMED.