1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN CARLOS PARRA, Case No. 1:21-cv-01798-CDB 12 Plaintiff, ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 13 v. AND REMANDING ACTION FOR FURTHER PROCEEDINGS UNDER 14 COMMISSIONER OF SOCIAL SENTENCE FOUR OF 42 U.S.C. § 405(g) SECURITY, 15 (Docs. 21, 23) Defendant. 16 17 18 Juan Carlos Parra (“Plaintiff”) seeks judicial review of a final decision of the 19 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 20 disability insurance benefits under the Social Security Act. (Doc. 1). The matter is currently 21 before the Court on the certified administrative record (Doc. 16) and the parties’ briefs, which 22 were submitted without oral argument. (Docs. 21, 23).1 Plaintiff asserts the Administrative Law 23 Judge (“ALJ”) failed to fully evaluate relevant evidence and adequately explain her finding that 24 Plaintiff did not meet the requirements of Listing 11.09A. (Doc. 21 at 3, 13-17). Moreover, 25 Plaintiff contends the ALJ failed to develop the record. Id. at 3, 17-19. Plaintiff requests the 26 decision of the ALJ be vacated and the case be remanded for further proceedings including a de 27 1 Both parties have consented to the jurisdiction of a magistrate judge for all proceedings 28 in this action, in accordance with 28 U.S.C. § 636(c)(1). (Doc. 10). 1 novo hearing and a new decision. Id. at 19. 2 I. PROCEDURAL HISTORY 3 A. Administrative Proceedings 4 On August 31, 2017, Plaintiff protectively applied for disability insurance benefits. 5 (Administrative Record (“AR”) at 25, 150, 378). On September 10, 2018, Plaintiff protectively 6 applied for supplemental security income benefits. Id. at 25, 382. In both applications, Plaintiff 7 alleged a period of disability beginning on November 10, 2016, and was 36 years old on the 8 alleged disability onset date. Id. at 25, 151. Plaintiff claimed disability due to issues with 9 depression, anxiety, herniated disc, insomnia, low vision, left leg weakness, coordination 10 problems, bowel movement problems, bladder movement problems, issues with two back 11 surgeries, and multiple sclerosis (“MS”). Id. at 150-51, 164-65. 12 The Commissioner denied Plaintiff’s application initially and again on reconsideration. 13 Id. at 150-207, 210-47, 253-60. Plaintiff submitted a written request for a hearing by an ALJ. Id. 14 at 272-73. On March 26, 2021, Plaintiff represented by counsel, appeared by telephone before 15 ALJ Diane S. Davis. Id. at 105-149. Vocational expert (“VE”) James Miller also testified at the 16 hearing via telephone. Id. at 112, 142-48. 17 B. Medical Record 18 The relevant medical record was reviewed by the Court and will be referenced below as 19 necessary to this Court’s decision. 20 C. The ALJ’s Decision 21 On April 21, 2021, the ALJ issued a decision finding that Plaintiff was not disabled. (AR 22 at 27-42). The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 23 404.1520(a). Id. The ALJ found Plaintiff had not engaged in substantial gainful activity since 24 November 10, 2016, the alleged disability onset date (step one). Id. at 30. The ALJ held Plaintiff 25 possessed the following severe impairments: degenerative disc disease of the lumbar spine, MS, 26 depression, and anxiety (step two). Id. at 30. 27 Next, the ALJ determined Plaintiff did not have an impairment or combination of 28 impairments that meets or medically equals the severity of one of the listed impairments in 20 1 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings") (step three). Id. at 31. Specifically, the 2 ALJ considered Listing 1.15 (Disorders of the skeletal spine), and 11.09 (MS). Id. The ALJ 3 noted Listing 1.15 requires:
4 “a disorder resulting in compromise of nerve root(s), with evidence of neuroanatomic 5 distribution of one or more symptoms of pains, paresthesia, or muscle fatigue; and radicular distribution of neurological signs of muscle weakness; nerve root irritation, 6 tension, or compression; sensory changes; or decreased deep tendon reflexes; and a documented medical need for an assistive device involving the use of both hands, 7 inability to use both upper extremities.” 8 9 Id. The ALJ found Plaintiff reported having low back pain and left leg pain. Id. However, 10 the ALJ determined diagnostic testing did not show any significant compression of nerve 11 roots and Plaintiff’s physical examinations did not reveal the requisite motor and sensory 12 deficits. Id. The ALJ held the requirements of Listing 1.15 were not satisfied. 13 Next, the ALJ analyzed if Listing 11.09 applied to Plaintiff’s claim. Id. The ALJ noted 14 Listing 11.09 requires:
15 “disorganization of motor function in two extremities resulting in extreme limitation 16 in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities, or marked limitation in physical functioning, with marked 17 mental limitation in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing 18 self.” 19 20 Id. The ALJ reiterated that the evidence showed that Plaintiff did not have the requisite 21 motor deficits. Id. The ALJ found that prior to the initiation of medication for MS in 22 December 2018, Plaintiff was “noted to arise from a seated position easily, and able to 23 walk at normal speech [sic] back to the exam.” Id. at 31-32. The ALJ determined while 24 Plaintiff had some balance issues at a physical therapy visit in January 2021, “his gait is 25 good with good balance; he had occasional minimal sway with rapid [self-correction].” Id. 26 at 32. Further, the ALJ found Plaintiff did not have marked limitation in any of the 27 domains of mental functioning and Plaintiff reported having the ability to take care of 28 personal needs and perform his activities of daily living without assistance. Id. 1 Accordingly, the ALJ held the requirements of Listing 11.09 were not satisfied. Id. 2 The ALJ then assessed Plaintiff’s residual functional capacity (“RFC”). Id. at 33-34. The 3 ALJ found that from the alleged onset date of November 10, 2016, through June 9, 2019, Plaintiff 4 retained the RFC:
5 “to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), such that 6 he is limited to lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for four hours in an eight-hour workday; sit for six hours in an 7 eight-hour workday; occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; never climb ladders, ropes, or scaffolds; never work at unprotected 8 heights or around dangerous, unprotected major manufacturing machinery; avoid concentrated exposure to extreme heat; use a cane when walking long distances or on 9 uneven terrain; understand, remember, and carry out simple, routine tasks that can be 10 learned and mastered in up to 30 days or less, with reasoning level of three or less; and, at such levels, can maintain concentration, persistence, and pace within 11 customary norms, make simple work-related decisions, plan and set goals, adapt to routine workplace changes, travel, and recognize and avoid ordinary workplace 12 hazards.”
13 14 Id. at 33. Next, the ALJ determined that from June 10, 2019, to the present, Plaintiff 15 retained the RFC: 16 “to perform sedentary work, as defined in 20 CFR 404.1567(a) and 416.967(a), such 17 that he is limited to lift and/or carry 10 pounds occasionally and less than 10 pounds 18 frequently; stand and/or walk for two hours in an eight-hour workday; sit for six hours in an eight-hour workday; occasionally balance, stoop, kneel, crouch, crawl, 19 and climb ramps and stairs; never climb ladders, ropes, or scaffolds; never work at unprotected heights or around dangerous, unprotected major manufacturing 20 machinery; avoid concentrated exposure to extreme heat; use a cane to get to and from the workstation, and when walking long distances or on uneven terrain; 21 understand, remember, and carry out simple, routine tasks that can be learned and 22 mastered in up to 30 days or less, with reasoning level of three or less; and, at such levels, can maintain concentration, persistence, and pace within customary norms, 23 make simple work-related decisions, plan and set goals, adapt to routine workplace changes, travel, and recognize and avoid ordinary workplace hazards..” 24 25 Id. at 33-34. 26 Although the ALJ acknowledged that Plaintiff’s impairments could reasonably be 27 expected to cause his alleged symptoms, the ALJ concluded that Plaintiff’s statements 28 1 concerning the intensity, persistence and limiting effects of his symptoms were not entirely 2 consistent with the medical evidence and other evidence in the record. Id. at 34. The ALJ 3 again noted Plaintiff reported having the ability to take care of personal needs and perform 4 his own activities of daily living. Id. The ALJ found Plaintiff stopped working for a non- 5 disability reason. Id. at 34-35. 6 Thereafter, the ALJ reviewed Plaintiff’s treatment records. Id. at 34-37. The ALJ 7 acknowledged Plaintiff tested positive for MS. Id. at 35. However, the ALJ determined 8 despite some findings of tenderness, reduced range of motion, lower extremity weakness, 9 reduced left upper extremity hand grip strength, hyperreflexia, difficulty with tandem 10 walking, walking with a cane, slow gait, and “brief” hospitalizations, Plaintiff’s medical 11 record, and the record overall demonstrated he was not disabled from all work. Id. at 35- 12 40. The ALJ found persuasive the opinions of Dr. Wagner and state agency consultants 13 that from the alleged onset date through June 2019, Plaintiff was limited to light work. Id. 14 at 38-39. 15 The ALJ determined that Plaintiff was unable to perform any past relevant work (step 16 four), but could perform a significant number of other jobs in the national economy (step five). 17 Id. at 40-42. The ALJ concluded Plaintiff has not been under a disability as defined in the Act. 18 Id. at 42. 19 On October 22, 2021, the Appeals Council denied Plaintiff’s request for review, making 20 the ALJ’s decision the final decision of the Commissioner. Id. at 1-6. Plaintiff filed this action 21 on December 20, 2021, seeking judicial review of the denial of his application for benefits. (Doc. 22 1). The Commissioner lodged the administrative record on July 1, 2022. (Doc. 16). Plaintiff 23 filed an opening brief on November 10, 2022. (Doc. 21). On December 27, 2022, Defendant 24 filed a responsive brief. (Doc. 23). 25 II. LEGAL STANDARD 26 A. The Disability Standard 27 Disability Insurance Benefits and Supplemental Security Income are available for every 28 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) and 1381(a). An individual 1 is “disabled” if unable to “engage in any substantial gainful activity by reason of any medically 2 determinable physical or mental impairment …”2 Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 3 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). To 4 achieve uniformity in the decision-making process, the Social Security regulations set out a five- 5 step sequential evaluation process to be used in determining if an individual is disabled. See 20 6 C.F.R. § 404.1520; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). 7 Specifically, the ALJ is required to determine:
8 (1) whether a claimant engaged in substantial gainful activity during the period of 9 alleged disability, (2) whether the claimant had medically determinable “severe” impairments, (3) whether these impairments meet or are medically equivalent to one 10 of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) whether the claimant retained the RFC to perform past relevant work and (5) 11 whether the claimant had the ability to perform other jobs existing in significant numbers at the national and regional level. 12 13 Stout v. Comm’r. Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 14 on a claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (citing 15 Valentine v. Comm’r of Soc. Sec. Admin, 574 F.3d 685, 689 (9th Cir. 2009)). 16 Before making the step four determinations, the ALJ first must determine the claimant’s 17 RFC. 20 C.F.R. § 416.920(e). The RFC is the most a claimant can still do despite their 18 limitations and represents an assessment based on all relevant evidence. 20 C.F.R. §§ 19 404.1545(a)(1); 416.945(a)(1)). The RFC must consider all of the claimant’s impairments, 20 including those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2). E.g., Wells v. 21 Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (“These regulations inform us, first, that in 22 assessing the claimant’s RFC, the ALJ must consider the combined effect of all of the claimant’s 23 medically determinable impairments, whether severe or not severe.”). The RFC is not a medical 24 opinion. 20 C.F.R. § 404.1527(d)(2). Rather, it is a legal decision that is expressly reserved to 25 the Commissioner. 20 C.F.R. § 404.1546(c); see Vertigan v. Halter, 260 F.3d 1044, 1049 (9th 26 2 A “physical or mental impairment” is one resulting from anatomical, physiological, or 27 psychological abnormalities that are demonstrated by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). 28 1 Cir. 2001) (“[I]t is the responsibility of the ALJ, not the claimant’s physician, to determine 2 residual functional capacity.”). 3 At step five, the burden shifts to the Commissioner to prove that Plaintiff can perform 4 other work in the national economy given the claimant’s RFC, age, education, and work 5 experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). To do this, the ALJ can use 6 either the Medical-Vocational Guidelines or rely upon the testimony of a VE. Lounsburry v. 7 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th 8 Cir. 2001). “Throughout the five-step evaluation, the ALJ ‘is responsible for determining 9 credibility, resolving conflicts in medical testimony and for resolving ambiguities.’” Ford, 950 10 F.3d at 1149 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). 11 B. Standard of Review 12 Congress has provided that an individual may obtain judicial review of any final decision 13 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In 14 determining whether to reverse an ALJ’s decision, a court reviews only those issues raised by the 15 party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A 16 court may set aside the Commissioner’s denial of benefits when the ALJ’s findings are based on 17 legal error or are not supported by substantial evidence. Tackett v. Apfel, 180 F.3d 1094, 1097 18 (9th Cir. 1999). 19 “Substantial evidence is relevant evidence which, considering the record as a whole, a 20 reasonable person might accept as adequate to support a conclusion.” Thomas v. Barnhart, 278 21 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 22 1457 (9th Cir, 1995)). “[T]he threshold for such evidentiary sufficiency is not high.” Biestek v. 23 Berryhill, 139 S. Ct. 1148, 1154 (2019). Rather, “[s]ubstantial evidence means more than a 24 scintilla, but less than a preponderance; it is an extremely deferential standard.” Thomas v. 25 CalPortland Co., 993 F.3d 1204, 1208 (9th Cir. 2021) (internal quotations and citations omitted). 26 “[A] reviewing court must consider the entire record as a whole and may not affirm 27 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 28 1159 (9th Cir. 2012) (internal quotations and citations omitted). “If the evidence ‘is susceptible 1 to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.’” Ford, 2 950 F.3d at 1154 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). Even if the 3 ALJ has erred, the Court may not reverse the ALJ’s decision where the error is harmless. Stout, 4 454 F.3d at 1055-56. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 5 nondisability determinations.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 6 (quotation and citation omitted). The burden of showing that an error is not harmless “normally 7 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 8 409 (2009). 9 III. LEGAL ISSUES 10 Plaintiff asserts the ALJ failed to fully evaluate relevant evidence and adequately explain 11 her finding that Plaintiff did not meet the requirements of Listing 11.09A. (Doc. 21 at 3, 13-17). 12 Plaintiff separately argues the ALJ failed “to fully and fairly develop the record and obtain an 13 opinion from an examining internist regarding the functional limits resulting from ‘worsening’ 14 MS, rendering the assessed RFC unsupported.” Id. at 3, 17-20. 15 IV. DISCUSSION 16 A. Step Three 17 At step three of the sequential evaluation process, an ALJ must consider whether an 18 applicant has an impairment or combination of impairments that meets or medically equals an 19 impairment in the Listing of Impairments. 20 C.F.R. § 404.1520(a)(4)(iii). Listed impairments 20 are those that are “so severe that they are irrebuttably presumed disabling, without any specific 21 findings as to the claimant’s ability to perform his past relevant work or any other jobs.” Lester v. 22 Chater, 81 F.3d 821, 828 (9th Cir. 1996). Thus, if the claimant’s impairment matches or is 23 “equal” to one of the listed impairments, he qualifies for benefits without further inquiry. 20 24 C.F.R. § 416.920(d); Sullivan v. Zebley, 493 U.S. 521, 525 (1990). 25 The claimant bears the burden of proving that he has an impairment that meets or equals a 26 listed impairment. Burch, 400 F.3d at 683; Zebley, 493 U.S. at 530 (noting the burden of proof 27 rests with the claimant to provide and identify medical signs and laboratory findings that support 28 all criteria for step three impairment determination); Kennedy v. Colvin, 783 F.3d 1172, 1176 (9th 1 Cir. 2013). “To meet a listed impairment, a claimant must establish that he or she meets each 2 characteristic of a listed impairment relevant to his or her claim.” Tackett, 180 F.3d at 1099. “To 3 equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings ‘at 4 least equal in severity and duration’ to the characteristics of a relevant listed impairment.” Id. 5 (quoting 20 C.F.R. § 404.1526). “A generalized assertion of functional problems is not enough to 6 establish disability at step three.” Id. at 1100; see 20 C.F.R. § 416.926. 7 “An ALJ must evaluate the relevant evidence before concluding that a claimant’s 8 impairments do not meet or equal a listed impairment.” Lewis, 236 F.3d at 512. A boilerplate 9 finding is insufficient to support a conclusion that a claimant’s impairment does not meet or equal 10 a listed impairment. Id. However, an ALJ does not have “to state why a claimant failed to satisfy 11 every different section of the listing of impairments.” Gonzalez v. Sullivan, 914 F.2d 1197, 1201 12 (9th Cir. 1990). 13 Plaintiff challenges the ALJ’s finding at step three of the sequential evaluation that 14 Plaintiff’s “severe impairment of MS” did not satisfy the requirements of Listing 11.09A. (Doc. 15 21 at 13). Plaintiff asserts he meets “the applicable limitation in his claim,” an “inability to 16 maintain balance in a standing portion means that you are unable to maintain an upright position 17 while standing or walking with the assistance of another person, or an assistive device, such as a 18 walker, two crutches, or two canes.” Id. at 14 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 19 11.00D2) (emphasis added). 20 Plaintiff’s argument is without merit. There is no “applicable limitation” in Listing 21 11.09A. Instead, Plaintiff must “provide and identify medical signs and laboratory findings that 22 support all criteria for step three impairment determination.” Zebley, 493 U.S. at 530 (emphasis 23 added). Listing 11.09A sets forth the following criteria: “disorganization of motor function in 24 two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to 25 stand up from a seated position, balance while standing or walking, or use the upper extremities.” 26 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.09A. Thus, Plaintiff must meet both 11.00D1 and 27 11.00D2. 28 Listing 11.00D1 states disorganization of motor function is defined as “interference, due 1 to your neurological disorder, with movement of two extremities, i.e., the lower extremities, or 2 upper extremities...By two extremities we mean both lower extremities, or both upper extremities, 3 or one upper extremity and one lower extremity.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 4 11.00D1. 5 Here, the ALJ found that Plaintiff “did not have the requisite motor defects” to meet 6 11.00D1. AR at 31. As noted above, the ALJ reviewed the evidence relevant to Listing 1.15 7 (disorders of the skeletal spine). Id. The objective medical evidence showed that while Plaintiff 8 had pain, numbness, weakness, and lack of mobility in one extremity (left leg), he presented no 9 “requisite motor defects” with any other extremity. See id. at 552, 555-59, 561-65, 567-68, 570- 10 71, 573-74, 576-77, 579-80, 747-48, 1709, 1711, 1714, 1805, 1822. 11 Next, the ALJ identified a December 2018 examination. Id. at 31-32. The December 12 2019 examination noted Plaintiff complained of “slight left leg weakness.” Id. at 1073. The 13 examination showed Plaintiff was able to get up out of his chair, could walk at normal speed back 14 to the exam room, possessed a normal gait, and could walk back and forth across the room 15 without his cane. Id. at 1073-74. Plaintiff’s “[strength was] 5/5 in the bilateral upper and lower 16 extremities” and “[p]erhaps some minimal, subtle weakness in the left leg compared to the right.” 17 Id. at 1076. The ALJ also considered a January 2021 physical therapy visit. Id. at 32. The 18 physical therapy session demonstrated Plaintiff had “some balance issues” but his “[g]ait is good 19 with good balance,” he had minimal sway with rapid correction, and he possessed greater 20 mobility in his right leg compared to his left. Id. at 1789. 21 Plaintiff claims the ALJ ignored neurological evidence of motor dysfunction that placed 22 him in a wheelchair and reliant on a walker is unavailing. (Doc. 21 at 14-16) (citing AR. 766, 23 777, 790, 799, 808, 810-11, 890, 974, 977, 981, 986, 1041, 1192, 1451, 1549 1550-51, 1586, 24 1605, 1638, 1689, 1691, 1692, 1702, 1796). Plaintiff’s cited evidence shows disorganization in 25 only one extremity: that he displayed chronic pain, numbness, weakness, and decreased position 26 sense in his left leg. The record noted Plaintiff possessed a range of 5/5 to 2/5 strength in his left 27 lower extremity. Plaintiff had “mild ataxia…left greater than right,” his foot taps were “impaired 28 worse on the left” and had difficulty walking on his left foot due to dragging, spasticity of the left 1 lower extremity, and weakness. AR at 766-767, 790, 799, 808. 810-11, 890, 975, 977, 981, 986, 2 1041-42, 1192, 1451, 1549 1550-51, 1586, 1605, 1689, 1691, 1692, 1702, 1796. Moreover, the 3 record shows, when he did use a walker and/or wheelchair, Plaintiff did so because of his left leg. 4 See id. at 747-48, 810, 986, 1074, 1549, 1586, 1605, 1638, 1711. 5 In contrast, Plaintiff’s cited evidence did not demonstrate he suffered disorganization in 6 another extremity. The record shows Plaintiff had “[d]enied any other extremity weakness or 7 sensory loss” and had continuously displayed 5/5 to 4/5 strength in both upper extremities, and 8 5/5 to 4/5 strength in the right lower extremity. Id. Thus, the evidence does not support a finding 9 of disorganization of motor function in two extremities pursuant to 11.00D1. Accordingly, the 10 Court finds that substantial evidence supports the ALJ’s conclusion at Step Three that Plaintiff’s 11 MS did not meet or medically equal the requirements of Listing 11.09A. 12 B. The ALJ’s Duty to Develop the Record 13 The Ninth Circuit holds that an ALJ has a special duty to fully and fairly develop the 14 record and to assure that a claimant’s interests are considered, even when the claimant is 15 represented by counsel. Garcia v. Comm'r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014); see 16 Delorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991) (this duty is especially important when a 17 claimant suffers from a mental impairment). However, it remains the claimant’s “duty to prove” 18 that he is disabled and entitled to benefits. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 19 2001); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999); 20 C.F.R. §§ 404.1512(a), 416.912(a). 20 The ALJ’s duty to further develop the record is triggered only when there is ambiguous evidence 21 or when the record is inadequate to allow for proper evaluation of the evidence. Mayes, 276 F.3d 22 at 459-60. This duty may require that the ALJ obtain additional information by, inter alia, 23 contacting treating physicians, scheduling consultative examinations, or calling a medical expert. 24 20 C.F.R. §§ 416.912(e)-(f), 416.919a. 25 Whether such ambiguity or inconsistency is present depends on the facts of each case. 26 Molina v. Berryhill, No. 2:17-cv-01991 CKD, 2018 WL 6421287, at *3 (E.D. Cal. Dec. 6, 2018). 27 “There must be some objective evidence suggesting a condition that would have a material 28 impact on the disability decision. Id. (citing Smolen, 80 F.3d at 1288 and Wainwright v. Sec’y pf 1 Health & Human Servs., 939 F.2d 680. 682 (9th Cir. 1991)). Such objective evidence may 2 include evidence that a condition has worsened. Goodman v. Berryhill, No. 2:17-cv-01228 CKD 3 2019 WL 79016, at *5 (E.D. Cal. Jan. 2, 2019). 4 Plaintiff asserts the ALJ erred in failing to develop the record to assist in rendering 5 Plaintiff’s RFC. (Doc. 21 at 17-18). Plaintiff argues that despite the ALJ conceding Plaintiff’s 6 MS “worsened” in 2019, no further examination occurred and instead, the ALJ “played doctor” 7 when she interpreted “raw medical data” and invented a new RFC. Id. at 17-19. Defendant 8 counters that further development of the record was not necessary because Plaintiff had not 9 shown the evidence was unambiguous. (Doc. 23 at 6). Further, Defendant argues the ALJ did 10 not “interpret raw medical data” but looked at unambiguous evidence to reach a reasonable 11 conclusion about Plaintiff’s limitations. Id. (citing Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 12 2022)) (an ALJ is “capable of independently reviewing and forming conclusions about medical 13 evidence to discharge their statutory duty to determine whether a claimant is disabled and cannot 14 work.”). 15 The ALJ determined since June 2019, Plaintiff had greater limitations due to his physical 16 conditions than as determined by state agency consultants. AR. at 39. The ALJ did not rely on a 17 physician’s opinion that addressed Plaintiff’s work limitations. Indeed, no medical opinion 18 addressed Plaintiff’s functional capabilities after his MS had worsened. Id. at 35, 39. The ALJ 19 instead relied on a June 2019 treatment note indicating Plaintiff was using a wheelchair (id. at 20 1605), a July 2019 examination that noted Plaintiff had a sickly appearance (id. at 1805), a 21 November 2019 treatment note stating Plaintiff’s MS had “progressively worsened” (id. at 1547), 22 and a treatment provider advising Plaintiff to continue using a cane (id. at 1825). Id. at 39. 23 From these treatment records, the ALJ developed a second RFC limiting Plaintiff to 24 perform sedentary work. Id. at 33-34, 39. However, these records do not provide a sufficient 25 indication of Plaintiff’s functional limitations. Rather, the Court finds the medical records 26 reviewed by the ALJ provided no indication of the impact of Plaintiff’s “progressively 27 worsening” condition on his ability to perform sedentary work or even work on a function-by- 28 function basis. Moreover, the ALJ’s finding that Plaintiff should continue to use a cane, used a 1 wheelchair, had a “sickly appearance” and that his condition progressively worsened were 2 ambiguous—some of which observations (if further developed) could support a more restrictive 3 RFC than what the ALJ proffered. At bottom, it is clear the ALJ formulated Plaintiff’s second 4 RFC based on her interpretation of four treatment notes and not on medical judgment, which is 5 improper. See e.g., Rondan v. Halter, 8 F. App’x 724, 725 (9th Cir. 2001) (an ALJ’s duty to 6 further develop the record was triggered by the lack of a medical opinion that included 7 consideration of MRIs that Plaintiff had undergone); Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 8 1993) (“Without a personal medical evaluation it is almost impossible to assess the residual 9 functional capacity of any individual.”); Howell v. Kijakazi, No. 20-cv-02517-BLM, 2022 WL 10 2759090, at *10 (S.D. Cal. Jul. 14, 2022) (an ALJ’s duty to further develop the record was 11 triggered when the ALJ rejected plaintiff’s treating physician’s opinion, and the record did not 12 contain an opinion or interpretation of plaintiff's functional limitations following the deterioration 13 of plaintiff's medical condition). 14 In light of the foregoing, the Court concludes that the ALJ erred by not further developing 15 the record and that the ALJ’s second RFC determination is not supported by substantial evidence. 16 V. REMAND 17 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) 18 or to order immediate payment of benefits is within the discretion of the district court. Harman v. 19 Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an 20 administrative agency determination, the proper course is to remand to the agency for additional 21 investigation or explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. 22 Ventura, 537 U.S. 12, 16 (2002)). Generally, an award of benefits is directed when: 23 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, 24 (2) there are no outstanding issues that must be resolved before a determination of 25 disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 26 27 Smolen, 80 F.3d at 1292. In addition, an award of benefits is directed where no useful purpose 28 would be served by further administrative proceedings, or where the record is fully developed. 1 | Varney v. Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1998). 2 Here, the ALJ relied on isolated, anecdotal comments and notations, and not any medical 3 | opinion to develop Plaintiff's second RFC. Because the ALJ failed to further develop the record, 4 | remand is appropriate. 5 VI. CONCLUSION AND ORDER 6 Based on the foregoing, IT IS HEREBY ORDERED: 7 1. Plaintiffs motion for summary judgment (Doc. 21) is GRANTED to the extent for 8 further development of the record as set forth above; 9 2. The decision of the Commissioner is reversed, and the matter is REMANDED for 10 further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g); and 11 3. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Juan 12 Carlos Parra and against Defendant Kilolo Kijakazi, Acting Commissioner of 13 Social Security. 14 | IT IS SO ORDERED. | Dated: _ October 30, 2023 | Wr 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 14