(SS) Hogan v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: February 2, 2022
• Docket: 1:20-cv-01787
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 DANIEL RICHARD HOGAN, ) Case No.: 1:20-cv-01787-SKO ) 12 Plaintiff, ) ORDER REGARDING PLAINTIFF’S SOCIAL ) SECURITY COMPLAINT 13 v. ) ) ORDER DIRECTING ENTRY OF JUDGMENT IN 14 KILOLO KIJAKAZI, Acting Commissioner ) FAVOR OF DEFENDANT KILOLO KIJAKAZI of Social Security, ) AND AGAINST PLAINTIFF DANIEL RICHARD 15 ) HOGAN Defendant. ) 16 )

17 I. INTRODUCTION 18 On December 18, 2020, Plaintiff Daniel Richard Hogan (“Plaintiff”) filed a complaint under 19 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) seeking judicial review of a final decision of the 20 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his application for 21 Social Security Disability Insurance (“SSDI”) and Supplemental Security Income (“SSI”) under Titles 22 II and XVI of the Social Security Act (the “Act”). (Doc. 1.) The matter is currently before the Court 23 on the parties’ briefs, which were submitted, without oral argument, to the Honorable Sheila K. 24 Oberto, United States Magistrate Judge.1 25 ///// 26 ///// 27 28 1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7, 9.) 1 II. BACKGROUND 2 On September 23, 2015, Plaintiff filed an application for Disability Insurance Benefits (“DIB”) 3 and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act, alleging he became 4 disabled on August 25, 2009. (Administrative Record (“AR”) 271-280.) Plaintiff later amended the 5 alleged onset date to April 19, 2012. (AR 363.) He alleges he became disabled due to a combination 6 of physical impairments including diabetes with peripheral neuropathy and chronic diabetic ulcers on 7 his feet, and degeneration to the shoulders. (AR 363-364.) Plaintiff was born on March 10, 1967, and 8 was 55 years old as of the alleged onset date. (AR 271, 275.) Plaintiff completed the 12th grade in 9 1985. (AR 299.) He worked in construction from 1999 to 2009. (AR 299.) 10 A. Relevant Medical Evidence2 11 Plaintiff has a history of Type 1 and Type 2 Diabetes. (AR 586, 605.) The record contains 12 evidence of diabetic foot ulcers and shoulder pain. (AR 535, 561, 570, 655, 658, 660-61, 666-67, 669- 13 670, 687.) On June 5, 2012, Plaintiff received emergency care after he accidentally injected himself 14 with too much insulin. (AR 367.) He was discharged three hours later and instructed to follow up 15 with his primary care physician. (AR 368-71.) 16 1. James Mohs, M.D. 17 Plaintiff followed up with Dr. James Mohs on June 28, 2012. (AR 608.) Dr. Mohs refilled his 18 medications. (AR 608.) On July 3, 2014, Plaintiff presented with blood sugar of over 400 and an 19 A1C of greater than 9%. (AR 607.) Dr. Mohs recommended a complete chemistry panel, a blood 20 sugar log be maintained, and a change in medications. (AR 607.) 21 On July 3, 2014, Plaintiff followed up with Dr. Mohs for his diabetes. (AR 573.) Dr. Mohs 22 refilled his diabetic medication including Lantus and NovoLog. (AR 574-75.) 23 2. Harish Shah, M.D. 24 On July 20, 2012, Plaintiff presented to Dr. Shah for medical refills and lab results. (AR 602.) 25 Dr. Shah observed edema on both feet, and recommended an increase in diabetic medication. (AR 26 603.) 27

28 2 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 On November 26, 2012, Plaintiff was again seen by Dr. Shah for medication refills. (AR 599.) 2 Dr. Shah observed an ulcer on Plaintiff’s foot that was healing. (AR 600.) Additional labs were 3 ordered. (AR 600.) 4 On January 4, 2013, Plaintiff followed up with Dr. Shah concerning his lab results. (AR 597.) 5 Dr. Shah again observed an ulcer to Plaintiff’s toe that was scabbed and healing. (AR 597.) Dr. Shah 6 refilled his Lantus and NovoLog medications and added Mevacor. (AR 597.) 7 On May 30, 2013, Plaintiff presented to Dr. Shah for medication refills. (AR 590.) Dr. Shah 8 observed an ulcer to the great toe and recommended following up with an eye doctor for eye issues. 9 (AR 592.) 10 On December 20, 2013, Plaintiff was seen by Dr. Shah for complaints of sore throat and right 11 shoulder pain, and for prescription refills. (AR 580.) Dr. Shah observed thickened dry skin over the 12 feet and right great toe. (AR 581.) Dr. Shah refilled diabetic medications, including Lasix, 13 Amitriptyline, NovoLog, Lantus, and Lisinopril. (AR 582-83.) 14 On January 28, 2017, Plaintiff presented to Dr. Shah with a foot callus. (AR 741.) Dr. Shah 15 adjusted his medications. (AR 741-42.) 16 On March 27, 2017, Plaintiff was seen by Dr. Shah for swollen legs with a burning sensation. 17 (AR 723.) Dr. Shah diagnosed Plaintiff with a foot callus, ordered labwork and adjusted Plaintiff’s 18 medication. (AR 724-25.) Dr. Shah noted improvement in blood sugar levels and Plaintiff’s feet on 19 April 10, 2017, and May 1, 2017. (AR 716, 720.) 20 On August 22, 2017, Plaintiff was seen by Dr. Shah for x-rays to both shoulders due to 21 shoulder pain. (AR 704, 706.) Dr. Shah refilled Plaintiff’s prescriptions. (AR 706-07.) 22 On September 5, 2017, Dr. Shah reviewed the x-rays and diagnosed Plaintiff with cervical 23 radiculopathy. (AR 700-02.) Plaintiff was referred to orthopedics. (AR 700-02.) 24 On November 2, 2017, Plaintiff presented to Dr. Shah for follow up on his shoulder pain. (AR 25 684.) Dr. Shah noted painful shoulder rotation beyond 140 degrees, and he re-dressed the right great 26 toe. (AR 687.) Plaintiff was prescribed Tylenol for pain. (AR 687.) 27 ///// 28 ///// 1 3. Hung Ngo, M.D. 2 On September 10, 2013, Plaintiff presented to Dr. Ngo for lab results and prescription refills. 3 (AR 584.) Plaintiff complained of ankle pain, osteomyelitis of the great toe with deformation, 4 swelling and pedal edema, and an inability to stand or walk long distances without pain or his foot 5 turning blue. (AR 585.) Dr. Ngo observed Plaintiff to be in mild pain and distress, with a 2+ pedal 6 edema. (AR 585.) Dr. Ngo diagnosed Plaintiff with type 2 uncontrolled diabetes mellitus, and 7 cellulitis of the right great toe. (AR 586-87.) Dr. Ngo prescribed amitriptyline and refilled insulin. 8 (AR 587-88.) 9 4. Wendy Arzaga, M.D. 10 On July 29, 2014, Plaintiff presented to Dr. Arzaga with a right great toe infection. (AR 566.) 11 Dr. Arzaga noted Plaintiff’s history of diabetes and diagnosed Plaintiff with a diabetic right foot ulcer. 12 (AR 567-71.) Plaintiff was given a shot of antibiotics, prescribed oral antibiotics, and his diabetic 13 prescriptions were refilled. (AR 569-71.) 14 5. Pawan Kumar, M.D. 15 On August 25, 2014, Plaintiff followed up with Dr. Kumar concerning his diabetic condition. 16 (AR 562.) Dr. Kumar noted Plaintiff was recently treated for a right foot infection. (AR 562.) Dr. 17 Kumar ordered labs and updated his medications. (AR 564.) 18 On September 8, 2014, Plaintiff reported improved blood glucose levels. (AR 559-61.) Dr. 19 Kumar ordered a blood glucose log. (AR 559-61.) 20 On October 13, 2014, Plaintiff followed up with Dr. Kumar on his diabetic condition. (AR 21 555.) Plaintiff denied any acute complaints, and Dr. Kumar refilled his prescriptions. (AR 555.) 22 On January 12, 2015, Plaintiff presented to Dr. Kumar for follow up on his diabetes. (AR 549.) 23 Dr. Kumar advised Plaintiff to take NovoLog with his evening meal to lower morning blood sugar 24 levels. (AR 549-51.) 25 On March 30, 2015, Dr. Kumar reviewed Plaintiff’s medications. (AR 543-58.) Dr. Kumar 26 increased Lantus and directed Plaintiff to increase NovoLog in light of the elevated blood glucose 27 levels. (AR 543-58.) 28 1 On August 3, 2015, Plaintiff presented with complaints of pain “everywhere” but especially in 2 the shoulders. (AR 537.) Dr. Kumar updated his medication list by reducing Lantus and starting 3 Metformin. (AR 543.) 4 On August 24, 2015, and October 26, 2015, Plaintiff followed up with Dr. Kumar. (AR 534.) 5 Dr. Kumar reviewed the labwork and adjusted Plaintiff’s medication. (AR 534-36; 640-44.) 6 In December of 2015, Plaintiff followed up with Dr. Kumar. (AR 637.) Dr. Kumar ordered 7 additional labs and adjusted Plaintiff’s medications. (AR 632-35.) 8 On January 25, 2016, Plaintiff was seen by Dr. Kumar for follow up on his diabetic condition. 9 (AR 629.) Plaintiff reported that he had run out of his blood pressure medication and stated his legs 10 had been swelling. (AR 629.) Dr. Kumar observed edema and refilled prescriptions. (AR 630.) 11 On May 23, 2016, and June 27, 2016, Dr. Kumar noted an A1c of 9.6 and advised Plaintiff to 12 check blood glucose levels more frequently. (AR 764, 768.) 13 On September 1, 2016, Dr. Kumar observed a right foot callus and a weak right-hand grip. (AR 14 754.) Dr. Kumar refilled prescriptions and referred Plaintiff to neurology. (AR 743-54.) 15 In January, February and March of 2017, Plaintiff was seen by Dr. Kumar for uncontrolled 16 diabetes with hyperglycemia. (AR 731-38.) Dr. Kumar refilled and modified Plaintiff’s diabetic 17 prescriptions. (AR 731-38.) 18 On March 20, 2017, Plaintiff sought treatment for right foot redness and pain. (AR 727.) Dr. 19 Kumar prescribed Bactrim and advised Plaintiff to seek emergency care if the foot did not improve by 20 the next day. (AR 729.) 21 On July 14, 2017, and August 18, 2017, Plaintiff followed up with Dr. Kumar on his diabetic 22 condition. (AR 710, 714.) Dr. Kumar noted an A1c level of 9.4-9.6. (AR 710, 714.) He refilled and 23 adjusted Plaintiff’s medication. (AR 710, 714.) 24 On September 15, 2017, Plaintiff followed up with Dr. Kumar who again adjusted Plaintiff’s 25 medications due to uncontrolled diabetes with hyperglycemia. (AR 695-99.) 26 5. Tyler May, DPM 27 On September 28, 2016, Plaintiff was seen by Dr. May for a diabetic evaluation. (AR 656.) 28 Plaintiff complained of numbness in the feet, swollen right hallux, and a prior bone infection. (AR 1 656.) Dr. May observed a callus on the medial side of the right hallux and full thickness ulceration 2 with a fibrous and granular wound bed. (AR 657.) Dr. May found diabetic neuropathy and diabetic 3 foot ulcer. (AR 657.) Plaintiff was advised on diabetic foot care after Dr. May performed excisional 4 debridement of the foot ulcer. (AR 657.) 5 6. David Flora, DPM 6 On May 31, 2017, Plaintiff sought treatment from Dr. Flora for a left hallux callus and right 7 hallux ulcer. (AR 830-31.) Dr. Flora debrided the ulcer and reduced the callus. (AR 831.) He noted 8 decreased pulses and an abnormal monofilament exam. (AR 831.) 9 On September 27, 2017, Plaintiff treated with Dr. Flora for an ulcer on the left great toe. (AR 10 825.) Dr. Flora determined it was a Grade 2 penetration through the subcutaneous tissue that may 11 expose bone, tendon, ligament or joint capsule. (AR 825.) Dr. Flora debrided the ulcer, dressed it 12 with a padded dressing, and instructed Plaintiff to keep the skin lubricated by applying lotion daily, 13 not to walk barefoot, and to inspect the feet daily for infections or injuries. (AR 825.) 14 On October 30, 2017, Plaintiff presented to Dr. Flora for follow up of the ulcer on the left great 15 toe. (AR 820.) Dr. Flora noted improvement in the grade 2 ulcer with penetration through 16 subcutaneous tissue that may expose bone, tendon, ligament or joint capsule. (AR 821.) He further 17 noted a grade 3 pressure ulcer of the right foot. (AR 821.) The right foot ulcer was debrided and 18 dressings were applied. (AR 821-22.) 19 7. Donald L. Allyn, M.D. 20 On October 5, 2017, Plaintiff presented to Dr. Allyn for pain in both shoulders. (AR 662.) Dr. 21 Allyn reviewed MRIs of both shoulders taken on September 28, 2017. (AR 658-661, 665.) Dr. Allyn 22 noted moderate arthrosis to the right shoulder AC joint and mild tendinosis without tear in the 23 supraspinatus and infraspinatus tendons in the right shoulder. (AR 665-66.) He noted a moderately 24 hypertrophic and osteoarthritic AC joint in the left shoulder and slight to moderate tendinosis of the 25 supraspinatus and infraspinatus tendons in the left shoulder. (AR 666.) Dr. Allyn assessed Plaintiff 26 with bilateral shoulder adhesive capsulitis, bilateral shoulder arthralgia, and tendinosis of 27 supraspinatus and infraspinatus tendons of both shoulders. (AR 666-67.) Dr. Allyn determined that 28 surgery would not be helpful. (AR 667.) As to employability, Dr. Allyn determined it unlikely that 1 Plaintiff would return to gainful employment that requires any overhead work using the shoulders, or 2 heavy lifting using either arm. (AR 667.) 3 8. Chia-Wen Chang, MD 4 On October 19, 2017, Plaintiff followed up with Dr. Chang for bilateral cataracts. (AR 692.) 5 Dr. Chang noted bilateral proliferative diabetic retinopathy, vitreous hemorrhage in the right eye, and 6 age-related bilateral nuclear cataracts. (AR 693.) 7 B. Medical Opinion Evidence 8 1. K. Mohan, MD 9 On November 30, 2015, Dr. Mohan, a non-examining state agency physician, reviewed the 10 available medical records and assessed Plaintiff’s medical impairments of diabetes mellitus, 11 hypertension, and peripheral neuropathy. (AR 139.) Dr. Mohan determined that Plaintiff could lift 12 and/or carry up to 20 pounds occasionally and 10 pounds frequently. (AR 140.) Dr. Mohan further 13 determined that Plaintiff could stand and/or walk about 6 hours in an 8-hour workday and sit about 6 14 hours in an 8-hour workday. (AR 140.) Dr. Mohan found that Plaintiff had no restrictions on pushing 15 and pulling movements for lift and/or carry. (AR 140.) He further found that Plaintiff could 16 occasionally climb ramps and stairs, but could never climb ropes, ladder, or scaffolds. (AR 140.) 17 Plaintiff had no limitations stooping, kneeling, crouching or crawling. (AR 140-41.) Plaintiff was 18 limited in reaching overhead to the left, but had no limitations in handling, fingering, and feeling. (AR 19 141.) Plaintiff also had no visual or communicative limitations. (AR 141.) Plaintiff was advised to 20 avoid concentrated exposure to machinery, heights and other hazards. (AR 141.) Dr. Mohan 21 concluded that Plaintiff was able to perform light work. (AR 143.) 22 2. C. Scott, MD 23 On March 2, 2016, C. Scott, a second reviewing physician, affirmed Dr. Mohan’s opinion. (AR 24 165-66.) Dr. Scott noted Plaintiff’s medical impairments and stated there were no additional 25 complaints or referrals for shoulder pain or vision problems. (AR 166.) Dr. Scott agreed with Dr. 26 Mohan’s opinion that Plaintiff could perform light work. (AR 167.) 27 ///// 28 ///// 1 C. Administrative Proceedings 2 The Commissioner initially denied Plaintiff's application for DIB and SSI on December 1, 3 2015. (AR 134-57.) Plaintiff's application was denied again on reconsideration on March 2, 2016. (AR 4 158-81.) Consequently, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). 5 (AR 212.) At the hearing on December 14, 2017, Plaintiff appeared with counsel and testified before 6 an ALJ as to his alleged disabling conditions. (AR 94-116.) On April 23, 2018, the ALJ determined 7 that Plaintiff was not disabled insofar as he could perform other jobs that existed in significant 8 numbers in the national economy. (AR 32-42.) 9 D. The ALJ’s Decision 10 In a decision dated April 23, 2018, the ALJ found that Plaintiff was not disabled, as defined by 11 the Act. (AR 32–42.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 12 416.920. (AR 33–42.) The ALJ determined that Plaintiff had not engaged in substantial gainful 13 activity since April 29, 2012, the amended onset date (step one). (AR 35.) At step two, the ALJ found 14 Plaintiff's following impairments to be severe: diabetes mellitus type I and II; essential hypertension; 15 diabetic polyneuropathy; adhesive capsulitis and arthralgia of the bilateral shoulders; and obesity. (AR 16 35.) Plaintiff did not have an impairment or combination of impairments that met or medically 17 equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) 18 (step three). (AR 36.) 19 The ALJ then assessed Plaintiff's RFC and applied the RFC assessment at steps four and five. 20 See 20 C.F.R. § 416.920(a)(4) (“Before we go from step three to step four, we assess your residual 21 functional capacity. . . . We use this residual functional capacity assessment at both step four and step 22 five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff had the RFC: 23 to perform light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b) except [Plaintiff] can occasionally climb ramps and stairs, and never climb ladders, ropes, and 24 scaffolds. [Plaintiff] cannot reach overhead and can have occasional exposure to heavy machinery with fast moving parts and unprotected heights. He will need to alternate 25 between sitting and standing throughout the day.

26 (AR 37.) Although the ALJ recognized that Plaintiff's impairments “could reasonably be expected to 27 cause the alleged symptoms[,]” she rejected Plaintiff's subjective testimony as “not entirely consistent 28 with the medical evidence and other evidence in the record[.]” (AR 38.) 1 The ALJ determined that Plaintiff is unable to perform any past relevant work (step four). (AR 2 41.) The ALJ concluded that Plaintiff was not disabled because Plaintiff could perform a significant 3 number of other jobs in the national economy, specifically information clerk, Dictionary of 4 Operational Titles (“DOT”) code 237.367-018, parking attendant, DOT code 915.473-010, and office 5 helper, DOT code 239.567-010 (step five). (AR 41–42.) 6 Plaintiff appealed, and the Appeals Council declined to disturb the ALJ’s decision which then 7 became final. (AR 18-23.) 8 Plaintiff subsequently sought review of the ALJ's decision before the Appeals Council, which 9 denied review on December 18, 2018. (AR 22.) Therefore, the ALJ's decision became the final 10 decision of the Commissioner. 20 C.F.R. § 416.1481. 11 III. LEGAL STANDARD 12 A. Applicable Law 13 An individual is considered “disabled” for purposes of disability benefits if he or she is unable 14 “to engage in any substantial gainful activity by reason of any medically determinable physical or 15 mental impairment which can be expected to result in death or which has lasted or can be expected to 16 last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). However, “[a]n 17 individual shall be determined to be under a disability only if his physical or mental impairment or 18 impairments are of such severity that [s]he is not only unable to do his previous work but cannot, 19 considering his age, education, and work experience, engage in any other kind of substantial gainful 20 work which exists in the national economy.” Id. at § 1382c(a)(3)(B). 21 “The Social Security Regulations set out a five-step sequential process for determining whether 22 a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 F.3d 1094, 23 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The Ninth Circuit 24 has provided the following description of the sequential evaluation analysis: 25 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two 26 and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and 27 considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically 28 presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing her past relevant work. If so, the claimant is not 1 disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC]...to perform any other substantial gainful activity in the national economy. If so, 2 the claimant is not disabled. If not, the claimant is disabled.

3 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also 20 C.F.R. § 416.920(a)(4) (providing 4 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 5 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” 6 Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 7 “The claimant carries the initial burden of proving a disability in steps one through four of the 8 analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 9 “However, if a claimant establishes an inability to continue her past work, the burden shifts to the 10 Commissioner in step five to show that the claimant can perform other substantial gainful work.” Id. 11 (citing Swenson, 876 F.2d at 687). 12 B. Scope of Review 13 “This court may set aside the Commissioner's denial of [social security] benefits [only] when 14 the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as 15 a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” means “such relevant 16 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 17 Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 18 (1938)). “Substantial evidence is more than a mere scintilla but less than a preponderance.” Ryan v. 19 Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 20 “This is a highly deferential standard of review....” Valentine v. Comm'r of Soc. Sec. Admin., 21 574 F.3d 685, 690 (9th Cir. 2009). The ALJ's decision denying benefits “will be disturbed only if that 22 decision is not supported by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 23 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will uphold the ALJ's conclusion when the 24 evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund v. Massanari, 25 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more than one rational 26 interpretation, the court may not substitute its judgment for that of the Commissioner.” (Citations 27 omitted)). 28 1 In reviewing the Commissioner's decision, the Court may not substitute its judgment for that of 2 the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 3 determine whether the Commissioner applied the proper legal standards and whether substantial 4 evidence exists in the record to support the Commissioner's findings. See Lewis v. Astrue, 498 F.3d 5 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner's decision ‘cannot be affirmed simply by 6 isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. 7 Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 8 weighing both evidence that supports and evidence that detracts from the [Commissioner's] 9 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 10 Finally, courts “may not reverse an ALJ's decision on account of an error that is harmless.” 11 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm'r, Soc. Sec. Admin., 454 12 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record that ‘the 13 ALJ's error was inconsequential to the ultimate nondisability determination.’” Tommasetti v. Astrue, 14 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th 15 Cir. 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 16 the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 17 IV. DISCUSSION 18 A. Work-Related Limitations and Subjective Complaints 19 Plaintiff first claims, “The ALJ failed to include work-related limitations in the RFC consistent 20 with the nature and intensity of Plaintiff's limitations, and failed to offer clear and convincing reasons 21 for rejecting his subjective complaints.” (Doc. 16 at 10.) Defendant urges the Court to affirm the 22 decision because substantial evidence supported the ALJ’s assessment of Plaintiff’s subjective 23 statements. (Doc. 19 at 13.) 24 1. The Residual Functional Capacity Determination 25 A claimant's residual functional capacity is “the most [a claimant] can still do despite his 26 limitations.” 20 C.F.R. §§ 404.1545(a), 416.945(a); see also 20 C.F.R. Part 404, Subpart P, Appendix 27 2, § 200.00(c) (defining an RFC as the “maximum degree to which the individual retains the capacity 28 for sustained performance of the physical-mental requirements of jobs”). In formulating an RFC, the 1 ALJ weighs medical and other source opinions, as well as the claimant's credibility. See, e.g., Bray v. 2 Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). Further, the ALJ must consider 3 “all of [a claimant's] medically determinable impairments,” whether severe or not, when assessing an 4 RFC. 20 C.F.R. §§ 405.1545(a)(2), 416.945(a)(2). 5 2. Subjective Complaints and Plaintiff's RFC 6 The burden is on a claimant to show a condition is a medically determinable impairment. 7 Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)); see also 20 C.F.R. §§ 404.1520(c), 416.920(c). 8 Here, the ALJ determined that Plaintiff’s “medically determinable impairments could reasonably be 9 expected to cause the alleged symptoms.” (AR 38.) The ALJ nonetheless discounted Plaintiff’s 10 subjective complaints “concerning the intensity, persistence and limiting effects of these symptoms” 11 as “not entirely consistent with the medical evidence and other evidence in the record . . . .” (AR 38.) 12 Plaintiff complains that “[t]he ALJ failed to set forth any specific, legitimate reason for discounting 13 Plaintiff’s symptoms, or identify evidence that was inconsistent with his complaints.” (Doc. 16 at 11.) 14 The ALJ must make specific findings about a claimant’s allegations, properly supported by the 15 record and sufficiently specific to ensure a reviewing court that he did not “arbitrarily discredit” a 16 claimant’s subjective testimony. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (citing 17 Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). Here, the ALJ determined that 18 Plaintiff suffered impairments including diabetes, a left leg injury, ankle swelling, and loss of 19 circulation with shoulder pain. (AR 38.) The ALJ noted that Plaintiff reported additional symptoms of 20 pain in his shoulder and ankles and numbness in his feet. (AR 38.) The ALJ also considered 21 Plaintiff’s testimony that he had ulcers in his right foot, and that he had to elevate his feet for three 22 hours due to swelling. (AR 38.) The ALJ further noted that Plaintiff had high sugar levels and 23 neuropathy with pins and needles sensations in his arms and shoulders. (AR 38.) 24 Plaintiff contends that the ALJ failed to include work-related limitations in the RFC consistent 25 with the nature and intensity of Plaintiff's limitations. The Court does not agree. The ALJ examined 26 new evidence from the unadjudicated period in comparison to the prior ALJ findings and found that 27 there was material evidence of changed circumstances supporting additional limitations in Plaintiff’s 28 RFC. (AR 38-40.) 1 The ALJ noted that as to the evidence of diabetic foot ulcers and diminished sensation, the 2 RFC restricts Plaintiff “to light work with occasional climbing of ramps and stairs; no climbing of 3 ladders, ropes, and scaffolds; and occasional exposure to heavy machinery with fast moving parts and 4 unprotected heights.” (AR 38-39.) The ALJ further found that, “[a]s an additional protective measure, 5 the residual functional capacity provides that the claimant will need to alternate between sitting and 6 standing throughout the day.” (AR 39.) 7 The ALJ also noted that in October 2017, Plaintiff was diagnosed with adhesive capsulitis and 8 arthralgia of the bilateral shoulders. (AR 39.) The ALJ noted that shoulder examinations in October 9 and November 2017 showed restrictive range of motion and symptoms of tenderness when performing 10 range of motion movements. (AR 39.) As a result, the ALJ determined that, “To accommodate 11 evidence of restricted range of motion in his shoulders, the residual functional capacity limits the 12 claimant to light work with no climbing of ladders, ropes, and scaffolds and provides that the claimant 13 cannot reach overhead.” (AR 39.) The ALJ gave little weight to Dr. Mohan’s and Dr. Scott’s opinions 14 concerning their finding that “the claimant could perform occasional reaching overhead with the left 15 upper extremity,” because “[t]hey did not have an opportunity to review recent objective medical tests 16 on the claimant’s shoulders evidencing rotator cuff tendinosis, mild acromioclavicular and 17 glenohumeral osteoarthrosis, and global degenerative changes of the labrum.” (AR 40.) The ALJ 18 credited the recent evidence in support of a further restriction to “no reaching overhead.” (AR 40.) 19 Thus, the ALJ did in fact include work-related limitations in the RFC consistent with the nature and 20 intensity of Plaintiff's limitations. 21 Plaintiff also contends that the ALJ failed to offer clear and convincing reasons for rejecting 22 his subjective complaints. Although subjective testimony “cannot be rejected on the sole ground that 23 it is not fully corroborated by objective medical evidence,” the medical evidence “is still a relevant 24 factor in determining the severity of claimant's pain and its disabling effects.” Rollins v. Massanari, 25 261 F.3d 853, 857 (9th Cir. 2001); S.S.R. 16-3p (citing 20 C.F.R. § 404.1529(c)(2)). Here, the ALJ 26 considered all of Plaintiff’s subjective complaints in light of the medical evidence of his impairments. 27 The ALJ first noted Plaintiff’s medical impairments of types 1 and 2 diabetes mellitus. (AR 38.) The 28 ALJ noted minimal diabetic complications. (AR 38.) Although Plaintiff “had a diabetic foot ulcer in 1 August 2014 and October 2016, . . . his right foot radiographs showed no radiographic evidence of 2 osteomyelitis.” (AR 38.) Plaintiff had a pressure ulcer in May 2017 which improved by October 3 2017; however, the ALJ noted that Plaintiff’s “diabetic foot screenings were normal from July through 4 October 2017,” . . . that “[b]y October 2017, [Plaintiff] reported that he had good diabetes control.” 5 (AR 38.) The ALJ noted that Plaintiff has “generally preserved functioning in his extremities.” (AR 6 38.) The ALJ then concluded that Plaintiff’s diabetic foot ulcers could be accommodated by 7 restriction to light work with occasional climbing of ramps and stairs but no climbing of ladders, 8 ropes, and scaffolds, and occasional exposure to heavy machinery. (AR 38-39.) The ALJ further 9 found that as an additional protective measure, the RFC provides that Plaintiff “will need to alternate 10 between sitting and standing throughout the day.” (AR 39.) 11 With respect to Plaintiff’s diabetic neuropathy of the left upper extremity, the ALJ noted that 12 the impairment worsened, and in October 2016, [Plaintiff] was diagnosed with polyneuropathy. (AR 13 39.) The ALJ noted that in January 2017, a “nerve conduction study indicated moderately severe 14 bilateral symmetric distal sensory motor polyneuropathy.” (AR 39.) Yet, “physical examinations 15 throughout the record indicate generally preserved functioning in his extremities, and minimal 16 evidence of swelling,” which were inconsistent with his testimony. (AR 39.) As an example, the ALJ 17 pointed to symptoms of edema in June 2012 and June 2016, at which time Plaintiff’s “upper and lower 18 extremities retained normal strength, range of motion, reflexes, coordination, and tone.” (AR 39.) 19 Further, the ALJ noted evidence that from June through December 2015, and from September 2016 20 through October 2017, Plaintiff had “no edema or deformity in [Plaintiff’s] extremities, full range of 21 motion in all joints, and normal reflexes, coordination, muscle strength, and tone.” (AR 39.) The ALJ 22 concluded that in light of the “evidence of limited instances of edema but generally preserved 23 functioning,” the residual functional capacity restricted Plaintiff “to light work with occasional 24 climbing of ramps and stairs; no climbing of ladders, ropes, and scaffolds; occasional exposure to 25 heavy machinery with fast moving parts and unprotected heights; and the ability to alternate between 26 sitting and standing throughout the day.” (AR 39.) 27 The ALJ noted that Plaintiff was assessed with adhesive capsulitis and arthralgia of the 28 bilateral shoulders in 2017. (AR 39.) The ALJ accounted for evidence of mild rotator cuff tendinosis 1 without evidence of a tear, mild acromioclavicular and glenohumeral osteoarthrosis, and a global 2 degenerative change of the labrum. (AR 39.) The ALJ further noted that an MRI of the shoulder 3 showed similar findings. (AR 39.) The ALJ also noted that shoulder examinations in 2017 showed 4 restrictive range of motion and tenderness. (AR 39.) However, the ALJ +noted that examinations 5 from June through December 2015, and September 2016 through October 2017, showed normal 6 strength, range of motion, reflexes, coordination, and tone in his upper and lower extremities. (AR 39.) 7 To accommodate evidence of restricted range of motion in Plaintiff’s shoulders, the RFC was 8 modified to limit Plaintiff to “light work with no climbing of ladders, ropes, and scaffolds and 9 provides that [Plaintiff] cannot reach overhead.” (AR 39.) 10 The ALJ noted that Plaintiff was diagnosed with hypertension in July 2014. (AR 39.) The ALJ 11 further noted that Plaintiff required only “minimal treatment with medication to manage this 12 impairment and has few associated complications.” (AR 39.) In light of this impairment, the ALJ 13 determined that “a light residual functional capacity with postural and environmental limitations will 14 sufficiently accommodate any limiting effects due to hypertension.” (AR 39.) 15 With respect to Plaintiff’s impairment of obesity, and its exacerbating effects on his diabetes, 16 neuropathy, and shoulder impairments, the ALJ further restricted Plaintiff’s RFC to light work with 17 postural and environmental limitations, and provided that Plaintiff could alternate between sitting and 18 standing throughout the day. (AR 40.) 19 Thus, substantial evidence supported the ALJ’s findings. The ALJ offered specific reasons 20 derived from the medical records and reviewing physicians’ opinions for discounting some of 21 Plaintiff’s subjective complaints. 22 B. Duty to Develop 23 In the alternative, Plaintiff claims that “the ALJ erred by failing to develop the record and 24 obtain an assessment of Plaintiff’s limitations from a treating or examining source, who considered all 25 of Plaintiff’s severe medical impairments.” (Doc. 16 at 12.) Plaintiff contends that the RFC is 26 unsupported by substantial evidence, because the record lacks a medical assessment that accounts for 27 all of his severe impairments. (Doc. 16 as 12.) 28 1 1. Applicable Law 2 The ALJ's duty to further develop the record is triggered where the evidence is ambiguous or 3 inadequate to allow for proper evaluation. Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001); 4 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). A specific finding of ambiguity or 5 inadequacy in the record is not required to trigger the necessity to further develop the record where the 6 record itself establishes the ambiguity or inadequacy. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 7 2011); Garcia v. Comm'r of Soc. Sec., No. 1:19-CV-00545-SAB, 2020 WL 1904826, at *13 (E.D. Cal. 8 Apr. 17, 2020). 9 2. Analysis 10 Plaintiff contends that the ALJ was required to further develop the record with an opinion from 11 a treating or examining source because the ALJ relied on prior administrative medical findings. (Doc. 12 16 at 14-15.) Petitioner’s argument appears to be two-fold: 1) that a treating or examining opinion is 13 required in every case; and 2) that the ALJ substituted her own interpretation of medical records and 14 data for medical opinions. (Doc. 16 at 13.) Neither contention is correct. 15 First, although Plaintiff cites dicta from cases suggesting that an ALJ may not formulate an 16 RFC without referencing a treating or examining opinion, such cases do not purport to establish a rule 17 of general applicability that an ALJ must obtain an examining opinion in every case before rendering 18 an RFC determination. (Doc. 16 at 13 (citing Penny v. Sullivan, 2 F. 3d 953, 958; Tagger v. Astrue, 19 536 F.Supp.2d 1170, 1181 (C.D. Cal. 2008); Shipp v. Colvin, No. CV 13-9468 JC, 2014 WL 4829035, 20 at *7 (C.D. Cal. Sept. 26, 2014)). Such a rule would tend to contravene established circuit precedent 21 that the RFC need not mirror any particular opinion, and would directly contravene the regulations that 22 provide that the agency may obtain a consultative examination to resolve evidentiary ambiguity or 23 insufficiency, not that an ALJ must do so in every case. See 20 C.F.R. § 404.1519a; Magallanes v. 24 Bowen, 881 F.2d 747, 753 (9th Cir. 1989); Turner v. Comm'r Soc. Sec. Admin., 613 F.3d 1217, 1222- 25 23 (9th Cir. 2010). 26 While it is undoubtedly true that an ALJ may not render an RFC determination without the aid 27 of a medical opinion, the record does contain a medical opinion, namely the opinions of the non- 28 examining state agency consultants (Drs. Mohan and Scott) who reviewed Plaintiff's medical file at the 1 initial and reconsideration levels—as the agency's medical consultants do in each case. (AR 139-42; 2 163-66.) As noted by Defendant, Dr. Mohan reviewed evidence of Plaintiff’s foot ulcers and diabetic 3 neuropathy. (AR 137-39.) Dr. Scott also reviewed Plaintiff’s medical records which contained 4 evidence of Plaintiff’s foot ulcers, leg swelling, diabetic neuropathy, and shoulder pain. (AR 159-63, 5 166, 477, 481, 562, 567, 572, 583-84, 591, 597, 600, 629.) Thus, Drs. Mohan and Scott were aware of 6 Plaintiff’s impairments, and determined Plaintiff could perform light work notwithstanding his 7 impairments. 8 Plaintiff's argument appears to be predicated on the incorrect assumption that, as a matter of 9 law, an ALJ is unqualified to independently interpret any medical records post-dating the agency 10 physicians’ review. Practically speaking, the very nature of the administrative review process 11 unavoidably results in a gap in time (often a lengthy one) between the agency physicians’ reviews and 12 the ALJ's hearing decision. During that gap in time, claimants routinely continue their course of 13 treatment for their conditions, generating new records. Accepting Plaintiff's argument would mean that 14 the ALJ is always precluded from reviewing such records and must obtain a consultative examination 15 in essentially every case. As explained above, there is no such legal requirement absent evidentiary 16 ambiguity or the presence of pertinent medical records unsusceptible to lay understanding. 17 Plaintiff contends the ALJ erred in failing to develop the record because the RFC was 18 unsupported by a medical assessment that accounted for all of Plaintiff’s severe impairments. (Doc. 16 19 at 12.) Here, the ALJ gave partial weight to the agency medical consultants, because Plaintiff’s 20 condition had worsened subsequent to their opinions. It is not error to continue to rely on expert 21 opinions when those opinions are consistent with the subsequent evidence. Meadows v. Saul, 807 F. 22 App’x 643, 647 (9th Cir. 2020) (unpublished). As noted above, Drs. Mohan and Scott were well aware 23 of Plaintiff’s severe impairments, and the subsequent evidence was consistent with their findings. The 24 subsequent evidence included instances of diabetes, diabetic foot ulcers, diabetic polyneuropathy, and 25 shoulder impairment. (AR 655, 666, 677.) The ALJ relied on Drs. Mohan’s and Scott’s opinions with 26 respect to Plaintiff’s ability to perform light work. However, the ALJ determined that the agency 27 medical consultants’ findings that Plaintiff could occasionally reach overhead were not supported in 28 light of the subsequent medical records showing a worsening of his shoulder conditions. To account 1 for this worsening range of motion in Plaintiff’s shoulders, the ALJ adopted a further restriction of no 2 overhead reaching. (AR 40.) The ALJ did not make a medical finding, and instead made an 3 administrative finding regarding Plaintiff’s ability to perform basic work functions given his medical 4 impairments, which is specifically a determination reserved to the ALJ. See 20 C.F.R. § 5 404.1527(d)(2) (“the final responsibility for deciding . . . issues [‘such as whether your impairment(s) 6 meets or equals the requirements of any impairment(s) in the Listing of Impairments in appendix 1 to 7 this subpart, your residual functional capacity, or the application of vocational factors’] is reserved to 8 the Commissioner”). Thus, substantial evidence supported the ALJ’s determination, and there is no 9 basis to find that the ALJ erred in failing to further develop the record with an examining opinion. 10 CONCLUSION AND ORDER 11 After consideration of the Plaintiff's and Defendant's briefs and a thorough review of the record, 12 the Court finds that the ALJ's decision is supported by substantial evidence in the record as a whole and 13 is based on proper legal standards. Accordingly, the Court DENIES Plaintiff's appeal from the 14 administrative decision of the Commissioner of Social Security. The Clerk of Court is directed to enter 15 judgment in favor of Defendant Kilolo Kijakazi, Commissioner of Social Security, and against Plaintiff 16 Daniel Richard Hogan. 17 18 IT IS SO ORDERED.

19 Dated: February 1, 2022 /s/ Sheila K. Oberto . 20 UNITED STATES MAGISTRATE JUDGE

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