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4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 ROCHELLE GINA CALVERT, Case No. 1:24-cv-00119-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 1, 12).
16 Defendant. 17 18 19 This matter is before the Court on Plaintiff’s complaint for judicial review of an 20 unfavorable decision by the Commissioner of the Social Security Administration regarding her 21 application for supplemental security income benefits. The parties have consented to entry of 22 final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), 23 with any appeal to the Court of Appeals for the Ninth Circuit. (ECF No. 11). 24 Plaintiff argues as follows: “The ALJ failed to properly develop the record and obtain any 25 medical opinion evidence, erroneously relying upon her own lay interpretation of the medical 26 data.” (ECF No. 12, p. 6). 27 Having reviewed the record, administrative transcript, parties’ briefs, and the applicable 28 law, the Court finds as follows. 2 A. RFC and Failure to Develop the Record 3 Plaintiff ultimately challenges the RFC that the ALJ formulated for her: 4 After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 5 416.967(a) except the claimant can frequently climb ramps and stairs; occasionally climb ladders, ropes, and scaffolds; frequently balance; occasionally stoop; 6 frequently kneel and crouch; and occasionally crawl. She would need the option to 7 alternate between sitting and standing every 30 minutes. 8 (A.R. 27). 9 Plaintiff argues that “the record . . . lacks an opinion that considered all relevant testing 10 and data in evaluating the severity and limiting effects of Plaintiff’s impairments” because the 11 ALJ failed to order a consultative exam after discounting the only medical opinion (offered by 12 Dr. Dipsia), and “the ALJ’s unexplained speculation[] and the ALJ’s failure to develop the record 13 and point to substantial evidence consistent with the RFC requires remand.” (ECF No. 12, pp. 7, 14 9). Defendant responds that a RFC need not be based on specific medical opinion, that the RFC 15 was nonetheless partially supported by Dr. Dipsia’s opinion, that the ALJ had no duty to develop 16 the record, and that any error was ultimately harmless because the ALJ formulated an RFC more 17 restrictive than Dr. Dipsia’s opinion and Plaintiff offers nothing but speculation to show that the 18 result would have been different. (ECF No. 16, pp. 5-8). 19 A claimant’s RFC is “the most [a claimant] can still do despite [her] limitations.” 20 20 C.F.R. §§ 404.1545(a), 416.945(a); see also 20 C.F.R. Part 404, Subpart P, Appendix 2, 21 § 200.00(c) (defining an RFC as the “maximum degree to which the individual retains the 22 capacity for sustained performance of the physical-mental requirements of jobs”). “In 23 determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record, 24 including, inter alia, medical records, lay evidence, and the effects of symptoms, including pain, 25 that are reasonably attributed to a medically determinable impairment.” Robbins v. Soc. Sec. 26 Admin., 466 F.3d 880, 883 (9th Cir. 2006) (internal quotation marks and citations omitted). And 27 “because it is the ALJ’s responsibility to formulate an RFC that is based on the record as a whole, 28 . . . the RFC need not exactly match the opinion or findings of any particular medical source.” 2 Aug. 22, 2014). 3 In reviewing findings of fact with respect to RFC assessments, this Court determines 4 whether the decision is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial 5 evidence means “more than a mere scintilla,” Richardson v. Perales, 402 U.S. 389, 402 (1971), 6 but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 7 1975). It is “such relevant evidence as a reasonable mind might accept as adequate to support a 8 conclusion.” Richardson, 402 U.S. at 401 (internal citation omitted). Lastly, an ALJ has a duty to 9 develop the record “only when there is ambiguous evidence or when the record is inadequate to 10 allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 11 2001). 12 As an initial matter, a consulting examination is not required in every case. Hogan v. 13 Kijakazi, No. 1:20-CV-01787-SKO, 2022 WL 317031, at *10 (E.D. Cal. Feb. 2, 2022) (noting no 14 “rule of general applicability that an ALJ must obtain an examining opinion in every case before 15 rendering an RFC determination”). Moreover, “ALJs need not seek the opinion of a medical 16 expert every time they review new medical evidence and make a RFC determination.” Bufkin v. 17 Saul, 836 F. App’x 578, 579 (9th Cir. 2021) (unpublished). Here, in formulating the RFC, the 18 ALJ considered the record as a whole, including Plaintiff’s subjective complaints, medical 19 records, and the findings of state agency medical consultant, Dr. Dipsia. 20 More specifically, the ALJ addressed Plaintiff’s complaints of “horrific pain” stemming 21 from titanium rods in Plaintiff’s back and her testimony, including “that she cannot sit or stand 22 for longer than 30 minutes at a time.” (A.R. 28). The ALJ noted medical records where Plaintiff 23 complained of pain, which spanned a relatively brief time, otherwise showed normal findings, 24 including that “she was in no acute distress, she had no focal neurological deficit, and she had 25 normal range of motion and strength (1F/3) . . . [and] she ambulated well without any obvious 26 discomfort or deficits (1F/3).” (A.R. 29). Moreover, the ALJ relied on an October 2022 record 27 indicating Plaintiff “reported that she had found the ‘perfect balance’ with the ‘perfect 28 combination’ of medicines that allowed her to be ‘the active person she [had] always been’ 2 mostly normal life with her current medication regimen, as the addition of tramadol had been a 3 ‘huge difference maker in the past few months’ (5F/10).” (A.R. 29). 4 Plaintiff had no treating or examining physician offer any opinion as to her limitations. 5 Rather, the only opinion in the record was that from Dr. Dipsia, who examined Plaintiff’s 6 records—mostly x-rays—spanning May 27, 2020 to December 1, 2021, and opined that Plaintiff 7 was not disabled. (A.R. 64). Reviewing this opinion, the ALJ stated as follows: 8 I considered the prior administrative medical finding of the state agency medical consultant, A. Dipsia, M.D., which indicates that the claimant is limited to light 9 work with some postural limitations (1A). This is not persuasive.
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4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 ROCHELLE GINA CALVERT, Case No. 1:24-cv-00119-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 1, 12).
16 Defendant. 17 18 19 This matter is before the Court on Plaintiff’s complaint for judicial review of an 20 unfavorable decision by the Commissioner of the Social Security Administration regarding her 21 application for supplemental security income benefits. The parties have consented to entry of 22 final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), 23 with any appeal to the Court of Appeals for the Ninth Circuit. (ECF No. 11). 24 Plaintiff argues as follows: “The ALJ failed to properly develop the record and obtain any 25 medical opinion evidence, erroneously relying upon her own lay interpretation of the medical 26 data.” (ECF No. 12, p. 6). 27 Having reviewed the record, administrative transcript, parties’ briefs, and the applicable 28 law, the Court finds as follows. 2 A. RFC and Failure to Develop the Record 3 Plaintiff ultimately challenges the RFC that the ALJ formulated for her: 4 After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 5 416.967(a) except the claimant can frequently climb ramps and stairs; occasionally climb ladders, ropes, and scaffolds; frequently balance; occasionally stoop; 6 frequently kneel and crouch; and occasionally crawl. She would need the option to 7 alternate between sitting and standing every 30 minutes. 8 (A.R. 27). 9 Plaintiff argues that “the record . . . lacks an opinion that considered all relevant testing 10 and data in evaluating the severity and limiting effects of Plaintiff’s impairments” because the 11 ALJ failed to order a consultative exam after discounting the only medical opinion (offered by 12 Dr. Dipsia), and “the ALJ’s unexplained speculation[] and the ALJ’s failure to develop the record 13 and point to substantial evidence consistent with the RFC requires remand.” (ECF No. 12, pp. 7, 14 9). Defendant responds that a RFC need not be based on specific medical opinion, that the RFC 15 was nonetheless partially supported by Dr. Dipsia’s opinion, that the ALJ had no duty to develop 16 the record, and that any error was ultimately harmless because the ALJ formulated an RFC more 17 restrictive than Dr. Dipsia’s opinion and Plaintiff offers nothing but speculation to show that the 18 result would have been different. (ECF No. 16, pp. 5-8). 19 A claimant’s RFC is “the most [a claimant] can still do despite [her] limitations.” 20 20 C.F.R. §§ 404.1545(a), 416.945(a); see also 20 C.F.R. Part 404, Subpart P, Appendix 2, 21 § 200.00(c) (defining an RFC as the “maximum degree to which the individual retains the 22 capacity for sustained performance of the physical-mental requirements of jobs”). “In 23 determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record, 24 including, inter alia, medical records, lay evidence, and the effects of symptoms, including pain, 25 that are reasonably attributed to a medically determinable impairment.” Robbins v. Soc. Sec. 26 Admin., 466 F.3d 880, 883 (9th Cir. 2006) (internal quotation marks and citations omitted). And 27 “because it is the ALJ’s responsibility to formulate an RFC that is based on the record as a whole, 28 . . . the RFC need not exactly match the opinion or findings of any particular medical source.” 2 Aug. 22, 2014). 3 In reviewing findings of fact with respect to RFC assessments, this Court determines 4 whether the decision is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial 5 evidence means “more than a mere scintilla,” Richardson v. Perales, 402 U.S. 389, 402 (1971), 6 but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 7 1975). It is “such relevant evidence as a reasonable mind might accept as adequate to support a 8 conclusion.” Richardson, 402 U.S. at 401 (internal citation omitted). Lastly, an ALJ has a duty to 9 develop the record “only when there is ambiguous evidence or when the record is inadequate to 10 allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 11 2001). 12 As an initial matter, a consulting examination is not required in every case. Hogan v. 13 Kijakazi, No. 1:20-CV-01787-SKO, 2022 WL 317031, at *10 (E.D. Cal. Feb. 2, 2022) (noting no 14 “rule of general applicability that an ALJ must obtain an examining opinion in every case before 15 rendering an RFC determination”). Moreover, “ALJs need not seek the opinion of a medical 16 expert every time they review new medical evidence and make a RFC determination.” Bufkin v. 17 Saul, 836 F. App’x 578, 579 (9th Cir. 2021) (unpublished). Here, in formulating the RFC, the 18 ALJ considered the record as a whole, including Plaintiff’s subjective complaints, medical 19 records, and the findings of state agency medical consultant, Dr. Dipsia. 20 More specifically, the ALJ addressed Plaintiff’s complaints of “horrific pain” stemming 21 from titanium rods in Plaintiff’s back and her testimony, including “that she cannot sit or stand 22 for longer than 30 minutes at a time.” (A.R. 28). The ALJ noted medical records where Plaintiff 23 complained of pain, which spanned a relatively brief time, otherwise showed normal findings, 24 including that “she was in no acute distress, she had no focal neurological deficit, and she had 25 normal range of motion and strength (1F/3) . . . [and] she ambulated well without any obvious 26 discomfort or deficits (1F/3).” (A.R. 29). Moreover, the ALJ relied on an October 2022 record 27 indicating Plaintiff “reported that she had found the ‘perfect balance’ with the ‘perfect 28 combination’ of medicines that allowed her to be ‘the active person she [had] always been’ 2 mostly normal life with her current medication regimen, as the addition of tramadol had been a 3 ‘huge difference maker in the past few months’ (5F/10).” (A.R. 29). 4 Plaintiff had no treating or examining physician offer any opinion as to her limitations. 5 Rather, the only opinion in the record was that from Dr. Dipsia, who examined Plaintiff’s 6 records—mostly x-rays—spanning May 27, 2020 to December 1, 2021, and opined that Plaintiff 7 was not disabled. (A.R. 64). Reviewing this opinion, the ALJ stated as follows: 8 I considered the prior administrative medical finding of the state agency medical consultant, A. Dipsia, M.D., which indicates that the claimant is limited to light 9 work with some postural limitations (1A). This is not persuasive. It is generally supported by the records that were available to the consultant, which do not provide 10 a full picture of the claimant’s limitations (see, e.g., 2F/1-2, 4), but this finding is 11 not consistent with the records received later, which are consistent with a limitation to a range of sedentary work (see, e.g., 1F/1; 3F/26, 28, 35; 4F/3; 5F/6, 10-11). 12 (A.R. 30). The ALJ then imposed a more restrictive limitation to sedentary work than the light 13 work recommendation from Dr. Dipsia. 14 Although the ALJ found Dr. Dipsia’s recommendation of light work unpersuasive (instead 15 limiting Plaintiff to sedentary work), the RFC matched other portions of Dr. Dipsia’s opinion. For 16 example, the postural limitations in the RFC (Plaintiff can frequently climb ramps and stairs; 17 occasionally climb ladders, ropes, and scaffolds; frequently balance; occasionally stoop; 18 frequently kneel and crouch; and occasionally crawl) match Dr. Dipsia’s recommendations. (A.R. 19 27, 67). Moreover, the ALJ did not completely reject Dr. Dipsia’s opinion as unsupported; rather, 20 the ALJ found that opinion was “supported by the records that were available to the consultant.” 21 (A.R. 30). 22 Although the ALJ decided to include the more restrictive sedentary work limitation in the 23 RFC based on records that Dr. Dipsia did not see, such does not render the RFC unsupported. 24 Maliha K. v. Saul, No. 8:19-CV-00877-MAA, 2020 WL 2113671, at *6 (C.D. Cal. May 4, 2020) 25 (“[T]he fact that a non-examining state agency physician fails to review the entire record does 26 not, by itself, mean that his or her opinion cannot serve as substantial evidence.”). Notably, “there 27 is always some time lapse between a consultant’s report and the ALJ hearing and decision, and 28 2 App’x 421, 423 (9th Cir. 2020) (unpublished). 3 Importantly, the records that the ALJ cited to support the sedentary work restriction—i.e., 4 the records that Dr. Dipsia did not review—mostly reflect Plaintiff’s complaints of pain, 5 numbness, and tingling. (A.R. 349 (complaining of back and lumbar pain); 407 (complaining of 6 spinal pain, numbness, and tingling); 461 (complaining of back pain)). As noted elsewhere in the 7 ALJ’s opinion, such evidence supported the more restrictive limitation to sedentary work: “Based 8 on the totality of the claimant’s symptoms, including back pain, numbness, tingling, and muscle 9 spasms, it is reasonable that she is limited to sedentary work with some postural limitations.” 10 (A.R. 29). In short, the Court concludes that the record was not inadequate so as to trigger a duty 11 to order a consultative exam. 12 As for Plaintiff’s argument that the RFC is likewise unsupported because the ALJ 13 interpreted raw medical data, as a general matter, there “is a presumption that ALJs are, at some 14 level, capable of independently reviewing and forming conclusions about medical evidence to 15 discharge their statutory duty to determine whether a claimant is disabled and cannot work.” 16 Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022). Here, the ALJ’s decision to impose greater 17 limitations based on Plaintiff’s more recent complaints of pain and other comments about that 18 pain was within the ALJ’s capability. Chao v. Astrue, No. 2:10-CV-01972 KJN, 2012 WL 19 868839, at *11 (E.D. Cal. Mar. 13, 2012) (noting that an ALJ cannot go outside record to make 20 his own exploration and assessment of a claimant’s medical condition). 21 Lastly, as Defendant argues, Plaintiff fails to show that the any error affected the ultimate 22 determination that she was not disabled. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 23 2015) (noting that an ALJ commits harmless error where the error is inconsequential to the 24 determination that a plaintiff is not disabled); McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 25 2011) (noting that it is Plaintiff’s burden to show prejudice). Plaintiff offers no opinion from a 26 treating or examining physician assessing further functional limitations, nor does she offer any 27 developed argument regarding what additional restrictions would be warranted. See Valentine v. 28 Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 n.2 (9th Cir. 2009) (rejecting challenge to RFC 1 | determination where the claimant did “not detail what other physical limitations follow from the 2 | evidence of his knee and shoulder injuries, besides the limitations already listed in the RFC”). 3 | I. CONCLUSION AND ORDER 4 Based on the above reasons, the decision of the Commissioner of Social Security is 5 | affirmed. The Clerk of Court is directed to enter judgment in favor of the Commissioner of Social 6 | Security and to close this case. 7 8 IT IS SO ORDERED. ° | Dated: _ August 13, 2024 [see hey □□ 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28