(SS) Michael Digiacomo v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: October 28, 2020
• Docket: 1:19-cv-00494
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6

7 MICHAEL DIGIACOMO, ) Case No.: 1:19-cv-00494-BAM 8 ) Plaintiff, ) ORDER REGARDING PLAINTIFF’S 9 v. ) S OCIAL SECURITY COMPLAINT 10 ANDREW M. SAUL,1 Commissioner of ) ) 11 Social Security, ) ) 12 Defendant. ) ) 13 14 INTRODUCTION 15 Plaintiff Michael Digiacomo (“Plaintiff”) seeks judicial review of a final decision of the 16 Commissioner of Social Security (“Commissioner”) denying his application for disability insurance 17 benefits (“DBI”) under Title II of the Social Security Act. The matter is currently before the Court on 18 the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. 19 McAuliffe.2 20 Having considered the briefing and record in this matter, the Court finds the decision of the 21 Administrative Law Judge (“ALJ”) to be supported by substantial evidence in the record as a whole and 22 based upon proper legal standards. Accordingly, this Court affirms the agency’s determination to deny 23 benefits. 24 25

26 1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul is substituted for Acting Commissioner Nancy A. Berryhill as the defendant in this suit. 27 2 The parties consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). 28 (Doc. Nos. 6, 8, 18.) 1 FACTS AND PRIOR PROCEEDINGS 2 Plaintiff filed an application for a period of disability and DBI on August 6, 2015, alleging 3 disability beginning January 1, 2014. AR 165-166.3 Plaintiff’s application was denied initially and on 4 reconsideration and he subsequently requested a hearing before an ALJ. AR 61-88, 104-105. ALJ 5 Matilda Surh held a hearing on October 16, 2017, and issued an order denying benefits on February 9, 6 2018. AR 19-60. Plaintiff sought review of the ALJ’s decision, which the Appeals Council denied, 7 making the ALJ’s decision the Commissioner’s final decision. AR 8-18, 163-164. This appeal 8 followed. 9 Relevant Hearing Testimony 10 The ALJ held a hearing on October 16, 2017, in Fresno, California. Plaintiff appeared in 11 person with his attorney, Jonathan Pena. Impartial Vocational Expert (“VE”) Lawrence Haney also 12 appeared. AR 36. 13 In response to questioning by the ALJ, Plaintiff testified that he is married, has three children 14 aged twenty-two, eighteen, and ten, and lives in a house with his family. He graduated from high 15 school and attended two years of community college but did not receive an associate degree or any 16 vocational certificates. Plaintiff does not work and receives support through CalViva and food stamps. 17 His wife also was not working at the time of the hearing but was looking for work. AR 40-41. 18 When asked about his work history, Plaintiff testified that he worked in sanitation for a bakery 19 for twenty years and his duties included cleaning ovens and machines. In his final two years of work, 20 he also performed pest control duties, including checking rat traps, spraying for pests, and doing 21 paperwork. The heaviest weight he had to lift and carry was approximately ten pounds or less while 22 performing pest control and less than twenty pounds while working in sanitation. Plaintiff stopped 23 working because his employer closed down the facility where he worked in 2014. Plaintiff 24 subsequently looked for the same type of work but was unable to find any positions. AR 41-42. 25 Plaintiff testified that he feels that he is unable to work because of his fatigue due to Crohn’s 26 disease and his psoriatic arthritis. On average, he uses the restroom ten to seventeen times per day. He 27

28 3 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 1 has had Crohn’s disease since 2010 and his treatment includes Humira every other week as well as 2 Mercaptopurine and Entocort. Plaintiff testified that his medication helps but hasn’t cured him and 3 he’s never been in remission. He has tried different medications, and his current medications seem to 4 work best for him. Plaintiff does not currently have any side effects from his medications. AR 43-44, 5 47. 6 When asked about his daily activities, Plaintiff testified that he can do the dishes but cannot do 7 yard work. Plaintiff used to do yard work but, after he got sick, his sons began to take over those 8 chores. He can prepare simple meals and drive himself. A typical day for Plaintiff includes taking his 9 kids to school, attending their events, coming home, eating something, and doing laundry. By the time 10 he gets home he is exhausted from fatigue. Plaintiff drops his kids off at school at approximately 9:00 11 a.m. and then takes a nap for approximately an hour or as long as he can. He naps almost daily and if 12 he is unable to do so in the morning he will take a nap in the afternoon. Plaintiff spends his time sitting 13 and reading. He cannot read a whole book in one sitting and needs to get up and move around. 14 Plaintiff testified that he can sit for fifteen to twenty minutes before he must stand and move around 15 due to back pain. Plaintiff’s daily activities also include feeding his bird and dog, sitting outside, 16 eating, and making calls if needed. Plaintiff picks up his children from school unless he is unable to 17 leave the toilet, in which case he asks his wife to pick them up. In a typical week, he asks his wife to 18 pick up his children at least once or twice. AR 44-47. 19 Plaintiff further testified that he underwent court ordered treatment after attempting suicide. He 20 has seen a psychiatrist regularly for thirty years. In response to questioning by his attorney, Plaintiff 21 testified that his court ordered treatment occurred for two hours once a week and lasted for three 22 months. He had no issues or trouble staying or getting to class and the consequence of not completing 23 the class would have been jail time. The charge that led to the classes was a DUI which occurred when 24 Plaintiff attempted suicide and was in an accident. Plaintiff completed the course in November of 25 2016. Plaintiff also attempted suicide approximately one-to-two weeks before the hearing and was 26 taken to the hospital. Plaintiff has thoughts of suicide approximately once per week. He has 27 emergency numbers and resources that he can call when he has suicidal thoughts and has attempted to 28 do so a few times, but typically makes an appointment with his psychiatrist when he has suicidal 1 thoughts. Plaintiff further testified that he has a panic disorder and an anxiety disorder. When 2 experiencing anxiety, he has chest paints, sweating, gets cold, and feels like he is going to have a heart 3 attack. Plaintiff’s panic attacks are triggered by family and by worry. AR 48-52. 4 Plaintiff further testified that he has had incidents within and outside of the home where he did 5 not make it to the restroom. Plaintiff does not wear Depends and when he has an accident he goes 6 home, washes his clothes, and takes a shower. During his court ordered classes, Plaintiff had 7 accommodations to use the restroom and only had to go a few times. Plaintiff has good days and bad 8 days and his symptoms have remained the same with medication. According to Plaintiff, his arthritis 9 effects his lower back and is an autoimmune deficiency related to his Chron’s disease. Plaintiff 10 experiences pain all the time and this pain impacts his abilities to do activities like working on his 11 family’s farm, standing too long, riding motorcycles, going to the lake, and skiing. If he needs to 12 attend one of his children’s events, Plaintiff will not eat that day so that he does not have an accident. 13 AR 52-55. 14 Following Plaintiff’s testimony, the ALJ elicited testimony from the VE, Lawrence Haney. 15 The VE testified that Plaintiff’s work history included industrial cleaner, classified as medium but 16 performed at a light level. The ALJ also asked the VE hypothetical questions. The ALJ asked the VE 17 to assume an individual with the same age, education, and work experience as Plaintiff for all 18 hypotheticals. For the first hypothetical, the ALJ asked the VE to assume this hypothetical individual 19 can lift fifty pounds occasionally and twenty-five pounds frequently, stand and/or walk for six out of 20 eight hours, has no limits on sitting, can frequently climb ramps and stairs, stoop, and crouch, 21 occasionally climb ladders, ropes, or scaffolds, and is capable for performing detailed tasks. The VE 22 testified that Plaintiff’s past work would be available. AR 56-57. 23 For the second hypothetical, the ALJ asked the VE to assume the additional limitation that this 24 individual would need ready access to a restroom no more than five minutes away. The VE testified 25 that there is no Dictionary of Occupational Titles classification or database where he could analyze the 26 restriction of taking no more than five minutes to get to a restroom. However, the VE thought that in 27 five minutes a person can walk a couple of blocks so within a factory setting or any other type of 28 industrial setting the VE did not think that would be a preclusion and Plaintiff’s past work would be 1 available. AR 57-58. 2 For the third hypothetical, the ALJ asked the VE to assume that the additional limitation that 3 the individual would need to use the restroom outside of normal breaks potentially twice an hour. The 4 VE testified that there would be no jobs available. AR 58. 5 Finally, Plaintiff’s attorney asked the VE hypothetical questions. Plaintiff’s attorney asked the 6 VE to assume the same individual described in the ALJ’s second hypothetical, except that this 7 individual would be off task fifteen percent of the time due to psychiatric symptoms. The VE testified 8 there would be no work available. AR 58-59. 9 Medical Record 10 The relevant medical record was reviewed by the Court and will be referenced below as 11 necessary to the Court’s decision. 12 The ALJ’s Decision 13 Using the Social Security Administration’s five-step sequential evaluation process, the ALJ 14 determined that Plaintiff was not disabled under the Social Security Act. AR 22-31. Specifically, the 15 ALJ found that Plaintiff met the insured status requirements of the Social Security Act through 16 December 31, 2019, and Plaintiff had not engaged in substantial gainful activity since October 14, 17 2014, the alleged onset date. AR 24. Further, the ALJ identified undifferentiated spondyloarthropathy, 18 Chron’s disease, generalized anxiety disorder, mild major depressive disorder, moderate alcohol use 19 disorder in early remission, and moderate cannabis use disorder in early remission as severe 20 impairments. AR 24. The ALJ then determined that Plaintiff did not have an impairment or 21 combination of impairments that met or medically equaled the severity of one of the listed 22 impairments. AR 24-25. Based on a review of the entire record, the ALJ determined that Plaintiff had 23 the residual functional capacity (“RFC”) to perform medium work except that he could lift and carry 24 fifty pounds occasionally and twenty-five pounds frequently, stand and/or walk for six hours in an 25 eight-hour work day, sit for six hours in an eight-hour work day, frequently stoop and climb ladders, 26 ropes and scaffolds, could not have prolonged exposure to extreme cold or hot temperatures, and can 27 perform detailed tasks. AR 26-30. With this RFC, the ALJ determined that Plaintiff was capable of 28 performing past relevant work as an industrial cleaner. AR 30. The ALJ therefore concluded that 1 Plaintiff was not under a disability, as defined in the Social Security Act, from October 14, 2014, 2 through the date of the ALJ’s decision. AR 30. 3 SCOPE OF REVIEW 4 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 5 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this 6 Court must determine whether the decision of the Commissioner is supported by substantial evidence. 7 42 U.S.C. § 405(g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales, 8 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 9 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as 10 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be 11 considered, weighing both the evidence that supports and the evidence that detracts from the 12 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 13 evidence and making findings, the Commissioner must apply the proper legal standards. See, e.g., 14 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner’s 15 determination that the claimant is not disabled if the Commissioner applied the proper legal standards, 16 and if the Commissioner’s findings are supported by substantial evidence. See Sanchez v. Sec’y of 17 Health and Human Servs., 812 F.2d 509, 510 (9th Cir. 1987). 18 REVIEW 19 In order to qualify for benefits, a claimant must establish that he or she is unable to engage in 20 substantial gainful activity due to a medically determinable physical or mental impairment which has 21 lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 22 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such 23 severity that he or she is not only unable to do his or her previous work, but cannot, considering his or 24 her age, education, and work experience, engage in any other kind of substantial gainful work which 25 exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The 26 burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 27 1990). 28 1 DISCUSSION4 2 Plaintiff raises the following challenges to the ALJ’s decision: (1) the ALJ erred in discounting 3 Plaintiff’s testimony regarding his Chron’s disease symptoms; and (2) the ALJ failed to develop the 4 record regarding Plaintiff’s mental impairments. (Doc. No. 15.) 5 A. The ALJ properly evaluated Plaintiff’s subjective complaints. 6 According to Plaintiff, the ALJ erred because she acknowledged that Plaintiff suffers from 7 diarrhea and Crohn’s disease flares but wholly rejected all of Plaintiff’s symptoms related to his 8 Chron’s disease and found that Plaintiff did not suffer from Chron’s disease to the degree suggested at 9 the hearing. (Doc. No. 15 at 10-11.) Plaintiff asserts that the ALJ’s basis for this rejection is 10 unexplained and there are no appropriate limitations included in the RFC. (Id. at 11.) Furthermore, 11 even if the ALJ correctly concluded that Plaintiff’s report of ten to seventeen bowel movements daily 12 overstated his symptoms, the RFC does not reflect the reports of frequent diarrhea within the treatment 13 records the ALJ found credible. (Id.) The Commissioner, in turns, contends that the ALJ properly 14 rejected Plaintiff’s subjective symptom testimony as inconsistent with clinical findings, because 15 Plaintiff improved with treatment, and medical opinion evidence discounted Plaintiff’s complaints of 16 greater restrictions. (Doc. No. 16 at 8-10.) 17 In deciding whether to admit a claimant’s subjective complaints, the ALJ must engage in a 18 two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); Batson v. Comm'r of Soc. 19 Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). First, the claimant must produce objective medical 20 evidence of his impairment that could reasonably be expected to produce some degree of the symptom 21 or pain alleged. Garrison, 759 F.3d at 1014. If the claimant satisfies the first step and there is no 22 evidence of malingering, the ALJ may reject the claimant’s testimony regarding the severity of his 23 symptoms only by offering specific, clear and convincing reasons for doing so. Id. at 1015. 24 Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be 25 expected to cause the alleged symptoms, but discounted his statements concerning the intensity, 26

27 4 The parties are advised that this Court has carefully reviewed and considered all of the briefs, including arguments, points and authorities, declarations, and/or exhibits. Any omission of a reference to any specific argument or brief is not to 28 be construed that the Court did not consider the argument or brief. 1 persistence and limiting effects of those symptoms. AR 27. The ALJ did not find that Plaintiff was 2 malingering and was therefore required to provide specific, clear and convincing reasons for 3 discounting Plaintiff’s testimony. 4 As an initial matter, contrary to Plaintiff’s contention, the ALJ did not fail to explain the basis 5 for her rejection of Plaintiff’s symptoms related to his Crohn’s disease. (See Doc. No. 15 at 11.) As the 6 Commissioner notes in his opposition, the ALJ first discounted Plaintiff’s testimony regarding the 7 intensity, persistence, and limiting effects of his symptoms because it was not entirely consistent with 8 the objective medical evidence. AR 27-28. Although lack of supporting medical evidence cannot form 9 the sole basis for discounting testimony, it is a factor that the ALJ can consider. See Burch v. 10 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, in addition to finding that Plaintiff’s testimony was 11 inconsistent with the medical record, the ALJ also noted that Plaintiff’s Chron’s disease improved 12 with medication. AR 27-28. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (finding 13 that improvement with conservative treatment undermined allegations of disabling symptoms); Warre 14 v. Comm’r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled 15 effectively with medication are not disabling[.]”). The ALJ accordingly provided specific, clear and 16 convincing reasons for discounting Plaintiff’s testimony. 17 The ALJ’s opinion recognized that the medical evidence supported a diagnosis for Crohn’s 18 disease, consistent with Plaintiff’s testimony, but records reflected bowel movements at a less 19 significant degree of occurrence. AR 27. Specifically, the ALJ noted that, in January of 2014, Plaintiff 20 reported up to five to six bowel movements per day with abdominal cramping with the use of Humira 21 injections every two weeks. AR 27, 353. In May of 2014, Plaintiff reported two to six bowel 22 movements per day. AR 27, 338. In July of 2014, Plaintiff denied abdominal pain and in August of 23 2014 reported two to six bowel movements per day with a stable weight. AR 27, 333, 337. In 24 September of 2014, Plaintiff reported difficulty performing his job and six to ten bathroom visits per 25 day although weight was stable. AR 27, 330. By April of 2015, Plaintiff’s medical records noted 26 increased appetite, twenty-pound weight gain, and his Crohn’s disease was “under control after getting 27 Humira injections.” AR 27-28, 327, 527. In July of 2014 Plaintiff reported ten or more bathroom visits 28 per day but in August of 2015 he had benign abdominal examination findings and providers 1 recommended continued management as an outpatient with no modification in his current therapy. AR 2 28, 325, 715. Medical records indicated that Plaintiff’s Crohn’s disease was in remission with his 3 current treatment. AR 28, 460. 4 The ALJ further explained that Plaintiff’s 2016 medical records made few references to 5 Chron’s disease until December 2016, when Plaintiff’s provider recommended he see a 6 gastroenterologist to clarify if his Crohn’s was more active and whether medication changes were 7 necessary. AR 28, 801. In March of 2017, Plaintiff reported that his Crohn’s had been better 8 controlled, his eating improved, and felt comfortable working at home on his family’s ranch. AR 28, 9 585, 944. Plaintiff experienced a Crohn’s flare in April of 2017, which was resolving by June of 2017. 10 AR 28, 883, 891. In August of 2017, Plaintiff reported medication had cut his flares in half and he 11 visits his gastroenterologist for the flares and increases his Humira. AR 28, 961. Overall, the ALJ 12 concluded that these records reflected some degree of limitations “but not work preclusive 13 restrictions.” AR 28. 14 Plaintiff recites certain medical evidence from the record and contends that the RFC 15 determination is unsupported by substantial evidence because “the record . . . shows that the intensity 16 of Plaintiff’s symptoms varied with his Crohn’s flares, and these flares affect Plaintiff’s functional 17 capacity and necessitate access to a bathroom and additional restroom breaks.” (Doc. No. 15 at 13.) 18 However, Plaintiff does not identify any objective medical evidence that the ALJ failed to consider or 19 cite to any objective medical or opinion evidence that is inconsistent with the ALJ’s RFC. (Doc. No. 20 15 at 12.) Notably, none of the medical opinions in the record included a need for access to a 21 bathroom or additional restroom breaks as a functional limitation. See AR 61-88, 895-907. While 22 Plaintiff is correct that an RFC requires evidentiary support and an ALJ must provide a sufficient 23 connection between the medical evidence and the RFC to allow for meaningful review, Plaintiff does 24 not identify any such errors in the ALJ’s decision. (See Doc. No. 15 at 11, 13.) See Tackett v. Apfel, 25 180 F.3d 1094, 1102 (9th Cir. 1999); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). Banks 26 v. Barnhart, 434 F.Supp.2d 800, 805 (C.D. Cal. 2006); 27 Plaintiff cites Tate v. Astrue, 2013 WL 211259, at *5 (E.D. Cal. Jan. 18, 2013) for the 28 proposition that the ALJ in this case “identified no connection between the medical evidence of 1 severe Crohn’s disease and [the] RFC[.]” (Doc. No. 15 at 13.) In Tate, there was conflicting evidence 2 before the ALJ regarding the extend of the plaintiff’s educational background and the ALJ was 3 therefore required to resolve the conflict. Tate, 2013 WL 211259, at *5. The ALJ in that case 4 credited some evidence and disregarded Plaintiff’s testimony at the hearing but provided “no 5 reasons” as to why the evidence was resolved in that manner. Id. at *6. 6 Here, in contrast, the ALJ explained that Plaintiff’s conflicting testimony regarding the 7 severity of his Crohn’s disease was discounted due to inconsistency with the medical record and 8 improvement with medication. AR 27-28. The ALJ linked Plaintiff’s symptom testimony that she 9 found not to be credible to particular parts of the record. AR 27-28. The ALJ first summarized 10 Plaintiff’s testimony regarding the persistence, intensity, frequency, and limiting effects of his 11 symptoms. AR 27. The ALJ then devoted approximately four paragraphs to detailing the specific 12 medical evidence in the record that did not support Plaintiff’s testimony regarding the severity of his 13 Chron’s disease. AR 23-25. Unlike Tate, the Court need not speculate about the basis of the ALJ’s 14 determination or substitute its conclusions for the ALJ’s in conducting review because the ALJ 15 clearly indicated what evidence she found to be inconsistent and explained how she resolved the 16 conflicting evidence at issue. In light of the ALJ’s extensive discussion and comparison of the 17 relevant testimony to the record, the Court is satisfied that the ALJ built “an accurate and logical 18 bridge from the evidence to [her] conclusion so that, as a reviewing court, we may assess the validity 19 of the agency’s ultimate findings and afford a claimant meaningful judicial review.” See Tate, 2013 20 WL 211259, at * 5 (citations and quotation marks omitted). 21 Plaintiff further argues that the ALJ erred because, even if Plaintiff overstated his symptoms, 22 the RFC does not reflect reports of frequent diarrhea that were found credible. (Doc. No. 17 at 2.) 23 Plaintiff relies on Leonard v. Colvin, 633 Fed.Appx. 362, 364 (9th Cir. 2015) in arguing that the ALJ 24 was required to include “reports of frequent diarrhea within the treatment records which the ALJ 25 appears to have found credible” when developing the RFC. (Doc. No. 17 at 2; see also Doc. No. 15 26 at 11.) However, in Leonard, the Ninth Circuit found that the court erred because, even disregarding 27 the plaintiff’s subjective symptom testimony regarding the effects of his Crohn’s disease, the state 28 agency physician’s RFC assessment supported that the plaintiff had a need for frequent trips to the 1 bathroom and treatment notes indicated that the plaintiff had about five to seven bowel movements 2 daily. Leonard, 633 Fed.Appx. at 364. Here, as noted above, none of the medical opinions in the 3 record state that Plaintiff required access to a bathroom or additional restroom breaks as a functional 4 limitation. See AR 61-88, 895-907. 5 The determination of a claimant's RFC is wholly within the province of the ALJ. See 20 6 C.F.R. § 404.1546(c); SSR 96-8p. The RFC assessment is based on all the evidence in the record, 7 and it is the ALJ's duty to consider and weigh that evidence. See 20 C.F.R. 404.1545(a)(1); SSR 96- 8 8p. Here, the ALJ cited to the medical evidence in the record which was inconsistent with Plaintiff’s 9 testimony regarding the severity of his Chron’s disease. It does not follow that the ALJ was 10 necessarily required to develop functional limitations derived solely from that medical evidence 11 which discredited Plaintiff’s testimony. The ALJ’s decision recognizes that Plaintiff has some work 12 limitations, however, she discredits Plaintiff’s testimony that his limitations due to Crohn’s disease 13 render him completely unable to work. In reaching her decision, the ALJ acted appropriately within 14 her responsibility to determine Plaintiff’s RFC from the administrative record as a whole. The RFC 15 assessment here is consistent with the medical testimony and adequately captures Plaintiff’s 16 limitations. See, e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (finding no 17 error in failure to include limitations in concentration, persistence, or pace where medical opinions 18 did not establish any such limitations). Thus, the ALJ did not err in failing to include a restriction for 19 access to a restroom or additional restroom breaks as part of the RFC. 20 Plaintiff also argues that the ALJ’s finding that Plaintiff’s symptoms improved with 21 medication lacked the support of substantial evidence because intermittent periods of improvement 22 do not invalidate the severity of Plaintiff’s Chron’s disease. (Doc. No. 15 at 13.) However, Plaintiff’s 23 argument misconstrues the scope of review on appeal. The ALJ is the trier of fact and she is 24 permitted to reject testimony regarding subjective symptoms as long as she makes specific findings 25 justifying that decision. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989); see also Bunnell v. 26 Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (“So long as the adjudicator makes specific findings that 27 are supported by the record, the adjudicator may discredit the claimant's allegations based on 28 inconsistencies in the testimony or on relevant character evidence.” ); Hayatgheyb v. Callahan, 120 1 F.3d 268 (9th Cir. 1997) (upholding an ALJ’s finding that the plaintiff was not credible where he 2 “made sufficient inquiries into [plaintiff’s] daily routine and medical and work history, and made 3 specific findings to justify her rejection of his pain testimony[.]” (citations omitted)). The Court’s 4 scope of review of decisions granting or denying Social Security disability is accordingly 5 limited. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir.1979) (observing 6 that Congress has mandated a very limited scope of judicial review of the Commissioner's decisions 7 granting or denying Social Security disability benefits). The Court must consider the record as a 8 whole, taking into account both the evidence that supports and the evidence that detracts from the 9 Commissioner's decision; it is not the court's role to re-weigh the evidence or substitute its own 10 judgment. Winans v. Bowen, 853 F.2d 643, 644–45 (9th Cir.1987). If there is conflicting evidence 11 supporting a finding of either disability or nondisability, the ALJ may resolve the conflict so long as 12 there is “more than one rational interpretation of the evidence.” Sprague, 812 F.2d at 1230. Where 13 evidence may support more than one rational interpretation, “the Court may not substitute its 14 judgment for that of the Commissioner.” Tackett, 180 F.3d at 1097; see also Matney on Behalf of 15 Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992) (“The trier of fact and not the reviewing 16 court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court 17 may not substitute its judgment for that of the ALJ.”). 18 In this case, considering the record as a whole, there is substantial evidence supporting the 19 ALJ’s finding that Plaintiff’s symptoms improved with treatment. As the ALJ explained in her 20 decision, treatment records in September 2015 noted that his condition was in remission, records in 21 2016 contained few references to Chron’s flares, and in March 2017 Plaintiff reported that his 22 Chron’s was better controlled. AR 28, 460, 585, 944, 961. Although Plaintiff may disagree with the 23 ALJ's assessment of the evidence, the ALJ in this case properly discharged her responsibilities of 24 determining credibility and resolving any conflicts or ambiguities in the evidence. Her interpretation 25 of the evidence is rational therefore must be upheld. See Andrews v. Shalala, 53 F.3d 1035, 1039–40 26 (9th Cir. 1995) (“The ALJ is responsible for determining credibility, resolving conflicts in medical 27 testimony, and for resolving ambiguities. We must uphold the ALJ's decision where the evidence is 28 susceptible to more than one rational interpretation.”) (citation omitted); Morgan v. Comm'r of Soc. 1 Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (“Where, as here, the ALJ has made specific findings 2 justifying a decision to disbelieve an allegation . . . and those findings are supported by substantial 3 evidence in the record, our role is not to second-guess that decision.”) (citation omitted). Having 4 reviewed the record, including evidence that supports and detracts from the ALJ’s finding, the Court 5 finds that the ALJ's interpretation regarding Plaintiff's improvement with medication is rational and 6 supported by substantial evidence. The ALJ therefore did not err in discounting Plaintiff’s subjective 7 symptom testimony due to his improvement with medication. 8 B. The ALJ did not err in failing to request a medical expert. 9 Plaintiff further argues that the ALJ failed to adhere to her duty to fully and fairly develop the 10 record by not requesting a medical expert in this case. (Doc. No. 15 at 13-15.) Specifically, Plaintiff 11 contends that the ALJ relied on the opinions of nonexamining state agency physicians regarding 12 Plaintiff’s mental limitations and these opinions were outdated and preceded further medical records, 13 thus the ALJ was required to obtain a medical opinion from a treating or examining source. (Id at 15.) 14 The Commissioner, in turn, argues that there is no requirement that the ALJ rely on a medical source 15 who reviewed the entire treatment record. (Doc. No. 16 at 11.) The Court agrees. 16 “In Social Security cases, the ALJ has a special duty to develop the record fully and fairly and 17 to ensure that the claimant's interests are considered[.]” Mayes v. Massanari, 276 F.3d 453, 459–60 18 (9th Cir. 2001). The ALJ’s duty to “conduct an appropriate inquiry” is triggered only where evidence 19 is ambiguous or the record is inadequate to allow for proper evaluation of the evidence. Id.; 20 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 21 The record indicates that, on November 4, 2015, Peter Bradley, Ph.D. reviewed the record, Dr. 22 Schumacher reviewed the record and opined that Plaintiff was not significantly limited in his abilities 23 to carry out very short and simple instructions, carry out detailed instructions, maintain attention and 24 concentration for extended periods, sustain an ordinary routine without special supervision, work in 25 coordination with or in proximity to others without being distracted by them, and make simple work- 26 related decisions. AR 71-72. Plaintiff was moderately limited in his ability to perform activities within 27 a schedule, maintain regular attendance, and be punctual within customary tolerances, to complete a 28 normal workday and workweek without interruptions from psychologically based symptoms, and to 1 perform at a consistent pace without an unreasonable number and length of rest periods. AR 72. On 2 January 11, 2016, Val Bee Psy.D. performed a review of the evidence of record and affirmed Dr. 3 Bradley’s opinion. AR 81, 84-85. The ALJ considered Drs. Bradley and Bee’s opinions and gave them 4 great weight. AR 29-30. The ALJ noted that Plaintiff “primarily managed his condition with outpatient 5 care and medications” and, “[d]espite exacerbating circumstances such as his layoff from work and his 6 lack of continued unemployment benefits, [he] continued to manage his care with a consistent degree 7 of services.” AR 30. Additionally, the ALJ reasoned that Plaintiff’s “condition lacked sufficient 8 treatment or findings on examination to support limitations in excess of those noted herein, limiting 9 [Plaintiff] to performing detailed tasks, as noted by the Disability Determinations Services doctors.” 10 AR 29. 11 Plaintiff contends that the ALJ should have obtained an opinion from a treating or examining 12 source because the record did not contain an opinion from a physician who reviewed Plaintiff’s 13 medical records subsequent to the state agency physicians’ review. (Doc. No. 15 at 15.) However, 14 Plaintiff failed to submit any medical opinions from a treating or examining physician as to his ability 15 to work or his functional limitations. The burden is on the claimant to establish disability. Terry, 903 16 F.2d at 1275; 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability 17 unless he furnishes such medical and other evidence of the existence thereof as the Secretary may 18 require”). Because it is the Plaintiff's burden to present evidence of disability, the mere absence of an 19 opinion from an examining physician does not give rise to a duty to develop the record; rather, that 20 duty is triggered only where there is an inadequacy or ambiguity. Bayliss v. Barnhart, 427 F.3d 1211, 21 1217 (9th Cir. 2005); Alvarez v. Astrue, 2009 WL 2500492, at *10 (E.D. Cal. Aug. 14, 2009) (finding 22 absence of report from treating physician did not give rise to a duty to develop the record where record 23 contained opinions of the state agency physicians and plaintiff’s complete treatment records); see also 24 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability unless he 25 furnishes such medical and other evidence of the existence thereof as the Commissioner of Social 26 Security may require.”); 20 C.F.R. § 404.1512(a) (“[Y]ou have to prove to us that you are … 27 disabled….”). 28 Plaintiff’s suggestion that the ALJ had a duty to further develop the record as a result of the 1 existence of medical records post-dating the Drs. Bradley and Bee’s review is unpersuasive. “An 2 ALJ’s duty to develop the record further is triggered only when there is ambiguous evidence or when 3 the record is inadequate to allow for proper evaluation of the evidence.” See Mayes v. Massanari, 276 4 F.3d 453, 459-60 (9th Cir. 2001). The mere existence of medical records post-dating a State agency 5 physician’s review does not in and of itself trigger a duty to further develop the record. See, e.g., 6 Charney v. Colvin, 2014 WL 1152961, at *7 (C.D. Cal. Mar. 21, 2014), aff'd, 647 F. App'x 762 (9th 7 Cir. 2016) (finding that the ALJ did not err in relying on the opinions of state agency physicians that 8 did not account for subsequent medical records where subsequent records were considered by the ALJ 9 and were not inconsistent with RFC). Indeed, the opinions of the state agency physicians constitute 10 substantial evidence supporting the ALJ's RFC assessment where they are supported by 11 the medical record as a whole and are consistent with it. See Andrews v. Shalala, 53 F.3d 1035, 1041 12 (9th Cir.1995) (“reports of the nonexamining advisor need not be discounted and may serve as 13 substantial evidence when they are supported by other evidence in the record and are consistent with 14 it”). Although the state agency physicians' RFC assessment did not account for Plaintiff's 15 subsequent medical records, the ALJ did consider and account for these records and found that there 16 was insufficient evidence to support additional limitations. See AR 28-30. Furthermore, Plaintiff does 17 not point to anything on those subsequent records that is materially inconsistent with the state agency 18 physician's opinions. 19 Plaintiff’s argument that the ALJ improperly relied on her own lay interpretation of the 20 remaining medical data to estimate functioning is likewise unpersuasive. (See Doc. No. 15 at 13-14.) 21 As noted above, the determination of a claimant’s RFC is wholly within the province of the ALJ. See 22 Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007). The RFC assessment is based on all the 23 evidence in the record, and it is the ALJ’s duty to consider and weigh that evidence. See id. Here, the 24 ALJ did not substitute her judgment for a competent medical opinion, play doctor, or make 25 independent medical findings as Plaintiff contends. (See Doc. No. 15 at 14.) The ALJ merely found 26 that the state agency physicians’ opinions were consistent with the subsequent medical records as part 27 of her duty to consider and weigh the relevant evidence in developing the RFC. 28 Plaintiff has not demonstrated that the record was ambiguous or inadequate to allow for proper 1 evaluation. The ALJ did not find that the record was ambiguous or inadequate to determine disability, 2 nor does Plaintiff identify any ambiguous or unclear treatment notes, medical opinions, or other 3 evidence. The ALJ summarized the medical evidence in the record, including evidence related to 4 Plaintiff’s mental impairments, and determined Plaintiff’s RFC with the support of that record. AR 5 26-30. The record contained what appears to be Plaintiff's complete treatment records, which 6 supported the ALJ's findings and did not present an ambiguity or inadequacy. Indeed, the Court notes 7 that at the hearing, the ALJ asked Plaintiff's attorney if the record was complete and he responded that 8 it was. AR 39. Under these circumstances, the Court finds that the ALJ was not obligated to further 9 develop the record as Plaintiff suggests. 10 CONCLUSION 11 Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial 12 evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court 13 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security. 14 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Andrew M. Saul, 15 Commissioner of Social Security, and against Plaintiff Michael Digiacomo. 16 17 IT IS SO ORDERED.

18 Dated: October 28, 2020 /s/ Barbara A. McAuliffe _ 19 UNITED STATES MAGISTRATE JUDGE

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