1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VICTOR MANUEL RIOS, Case No. 1:22-cv-01509-SKO 12 Plaintiff, 13 v. ORDER ON PLAINTIFF’S SOCIAL SECURITY COMPLAINT 14 MARTIN O’MALLEY, COMMISSIONER OF SOCIAL 15 SECURITY,1 (Doc. 1)
16 Defendant.
18 I. INTRODUCTION 19 Plaintiff Victor Rios (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his application for 21 disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). (Doc. 22 1). The matter is currently before the Court on the parties’ briefs, which were submitted, without 23 oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.2 24
26 1 On December 20, 2023, Martin O’Malley was named Commissioner of the Social Security Administration. See https://www.ssa.gov/history/commissioners.html. He is therefore substituted as the defendant in this action. See 42 27 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in [their] official capacity, be the proper defendant.”). 28 2 The parties have consented to the jurisdiction of the U.S. Magistrate Judge. (See Doc. 11.) 1 II. BACKGROUND 2 Plaintiff was born on March 29, 1967. (Administrative Record (“AR”) 301). He filed a 3 claim for DIB on March 24, 2020, alleging a disability onset date of November 28, 2008. (AR 4 116). In his application, he alleged “bicipital tendinitis right and left shoulder, tendonitis of both 5 rotator cuffs, cervical disc disorder of cervicothroracic region, cervical spondylosis without 6 myelopathy, disc disorder of umbar region, bilateral scroilitis, disorder of bursae and tendon in 7 shoulder region, arthritis of lumbar spine, spasm of muscle, and right rotator cuff tendintis.” (AR 8 312). Plaintiff has an 11th-grade education and previous work experience as a carpenter. (AR 304, 9 312-313). 10 A. Relevant Evidence of Record3 11 When Plaintiff filed his application in 2019, he reported lower back pain, shoulder pain, 12 and neck pain, which is largely the basis of his application. (AR 384, 390). Doctors had previously 13 prescribed medication and injections to treat his pain. (See, e.g., AR 382, 388, 403). X-rays from 14 June 2019 demonstrated Plaintiff had acromioclavicular arthropathy with bony thickening and 15 “almost no joint space of AC.” (AR 398). Plaintiff underwent an x-ray of his cervical spine in 16 August 2019, which showed disc disease and osteoarthritis (AR 407), and an x-ray from December 17 2019 showed degenerative joint disease (AR 429). Later imaging showed disc space narrowing at 18 L5-S1 and bilateral sacroiliitis (AR 439). 19 Upon examination, Plaintiff consistently displayed 4/5 strength of his extremities and a 20 moderately decreased range of motion in his lumbar spine and shoulders. (AR 385, 390-91, 394, 21 401, 406, 412, 415, 433). He also displayed tenderness in his neck and pain with motion, though 22 there were no signs of atrophy of the cervical and upper back. (See, e.g., 385, 412, 433). Plaintiff 23 has continued to take medication and receive injections to address his pain. (See, e.g., AR 705, 24 717, 724, 737, 741, 745). As of June and July 2021, Plaintiff continued to have 4/5 motor strength 25 of all extremities, a moderately decreased range of motion of the lumbar spine and shoulders, and 26 tenderness in the neck and pain with motion but without atrophy to the cervical and upper back. 27 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 28 contested issues. 1 (AR 757-58, 762). Plaintiff reports that he cannot stand, sit or lift for extended periods without 2 readjusting his spine, though he also testified he can lift 20 pounds and stand for 30 minutes. (AR 3 72). He largely completes his own daily activities, except that he cannot bend over to tie his shoes. 4 (AR 83). 5 Plaintiff also has a history of lung-related issues. Plaintiff underwent a computerized 6 tomography (CT) scan of his chest, abdomen and pelvis in January 2020 after he fell off a ladder. 7 (AR 462, 535). The CT showed Plaintiff had lung nodules, which had been present for years but 8 had increased over time. (AR 462, 477, 496, 503). A subsequent biopsy found the nodules to be 9 benign, and Plaintiff did not report a cough or chest pains. (AR 541). Plaintiff’s treating doctor 10 chose to monitor the nodule (Plaintiff was high-risk for lung cancer based on his long-term cigarette 11 smoking and prior work around asbestos (AR 549)) and follow-up testing confirmed the nodules 12 were stable. (AR 559-60). Plaintiff underwent pulmonary testing in June 2020, which showed 13 normal lung functioning. (AR 517). Plaintiff reports some dyspnea. (AR 459, 517). 14 B. The ALJ’s Decision 15 The Commissioner denied Plaintiff’s application for benefits initially on May 18, 2020, and 16 again upon reconsideration on June 25, 2020. (AR 115, 141). Plaintiff requested a telephonic 17 hearing before an Administrative Law Judge (an “ALJ”), and the parties a hearing attended on 18 September 2, 2021. (AR 14). In a decision dated September 15, 2021, the ALJ found that Plaintiff 19 was not disabled as defined by the Act after conducting the five-step disability analysis set forth in 20 20 C.F.R. § 404.1520. (AR 12-35). 21 Plaintiff’s claim arose under the same title of the Social Security Act as a prior claim4 where 22 there had been a final decision that Plaintiff was not disabled. (AR 14; see also AR 94-114). 23 Therefore, the ALJ was required to (1) apply a presumption of continuing non-disability and, if the 24 presumption was not rebutted by the claimant, determine that the claimant was not disabled; and
25 4 Plaintiff filed an application for benefits on December 21, 2015, alleging a disability onset date of September 28, 2008. (AR 97). The Commissioner denied his application initially on April 13, 2016, and upon reconsideration on 26 August 12, 2016. (AR 97). Plaintiff requested a hearing before an Administrative Law Judge (an “ALJ”), and the parties attended a hearing on April 30, 2018. (AR 97). In a decision dated August 31, 2018, the ALJ found that 27 Plaintiff was not disabled as defined by the Act after conducting the five-step disability analysis set forth in 20 C.F.R. § 404.1520. (AR 97-109). 28 1 (2) if the presumption was rebutted, adopt certain findings required under the applicable sequential 2 evaluation process for determining disability, made in the final decision by the ALJ or the Appeals 3 Council on the prior disability claim. (AR 14; Acquiescence Ruling (AR) 97-4(9); Chavez v. 4 Bowen, 844 F.2d 691 (9th Cir. 1988)). The ALJ found Plaintiff’s circumstances had changed since 5 the previous decision, thereby rebutting the presumption of continuing non-disability. (AR 15). 6 These changed circumstances included that Plaintiff’s lung nodules and sacroiliitis had risen to the 7 level of severe impairment. (AR 14) 8 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since 9 March 4, 2020 (step one). (AR 17). At step two, the ALJ found that Plaintiff suffers from the 10 following severe impairments: degenerative disc disease of the lumbar spine; degenerative disc 11 disease of the cervical spine; sacroiliitis; osteoarthritis and tendinitis of the bilateral shoulders; and 12 lung nodules. (AR 17). Plaintiff did not have an impairment or combination of impairments that 13 met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 14 1 (“the Listings”) (step three). (AR 19). 15 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)5 and applied the 16 assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three 17 to step four, we assess your residual functional capacity . . . . We use this residual functional 18 capacity assessment at both step four and step five when we evaluate your claim at these steps.”). 19 The ALJ found Plaintiff was limited to light work as defined in 20 C.F.R. 416.967(b) with the 20 following limitations: 21 The claimant can lift and carry 20 pounds occasionally and 10 pounds frequently; can push and pull occasionally with the arms; can stand and walk for four hours of 22 an eight-hour workday; can sit for six hours of an eight-hour workday; can frequently crouch and occasionally stoop, climb ramps and stairs, kneel, and crawl, 23 and can never climb ladders, ropes, and scaffolds. He can occasionally reach to the 24
25 5 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES 26 II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s 27 RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 28 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 1 front and sides and never reach overhead. He must avoid concentrated exposure to extreme heat, extreme cold, humidity, and pulmonary irritants, and must never be 2 exposed to unprotected heights and dangerous, unprotected machinery. 3 (AR. 20). 4 At steps four and five, the ALJ found that the transferability of job skills was immaterial 5 because the Medical-Vocational Rules supported a finding that Plaintiff is not disabled whether or 6 not he has transferrable job skills. (AR 23-24). The ALJ concluded that considering his age, 7 education, work experience and RFC, there were jobs that existed in significant numbers in the 8 national economy that Plaintiff could perform. (AR 24). The ALJ based this finding on the 9 testimony of the Vocational Expert (“VE”), who testified Plaintiff could perform the following 10 jobs: furniture rental consultant (Dictionary of Occupational Titles (“DOT”) 295.357-018); counter 11 clerk (DOT 249.366-010); and host (DOT 349.667-014). (AR 24). The ALJ concluded Plaintiff 12 was not disabled under the Social Security Act. (AR 24-25). 13 Plaintiff sought review of this decision before the Appeals Council, which denied review 14 on September 19, 2022. (AR 1). Therefore, the ALJ’s decision became the final decision of the 15 Commissioner. 20 C.F.R. § 404.981. 16 17 III. LEGAL STANDARDS 18 A. Applicable Law 19 An individual is considered “disabled” for purposes of disability benefits if he or she is 20 unable “to engage in any substantial gainful activity by reason of any medically determinable 21 physical or mental impairment which can be expected to result in death or which has lasted or can 22 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 23 However, “[a]n individual shall be determined to be under a disability only if [their] physical or 24 mental impairment or impairments are of such severity that he is not only unable to do [their] 25 previous work but cannot, considering [their] age, education, and work experience, engage in any 26 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 27 “The Social Security Regulations set out a five-step sequential process for determining 28 1 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 2 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided 3 the following description of the sequential evaluation analysis: 4 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 5 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 6 so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 7 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 8 not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing [their] past relevant work. If so, the claimant is not disabled. If not, the 9 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, the 10 claimant is not disabled. If not, the claimant is disabled. 11 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 12 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 13 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 14 “The claimant carries the initial burden of proving a disability in steps one through four of 15 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 16 1989)). “However, if a claimant establishes an inability to continue [their] past work, the burden 17 shifts to the Commissioner in step five to show that the claimant can perform other substantial 18 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 19 B. Scope of Review 20 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 21 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 22 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is 23 ‘more than a mere scintilla,’” and means only “such relevant evidence as a reasonable mind might 24 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) 25 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Ford v. Saul, 950 F.3d 26 1141, 1154 (9th Cir. 2020). 27 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 28 1 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 2 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 3 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the 4 evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund v. 5 Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more than one 6 rational interpretation, the court may not substitute its judgment for that of the Commissioner.” 7 (citations omitted)). 8 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 9 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 10 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 11 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 12 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 13 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 14 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 15 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 16 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 17 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 18 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 19 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 20 IV. DISCUSSION 21 Plaintiff contends the ALJ erred by failing to develop the record related to Plaintiff’s 22 physical and mental RFC and by failing to offer reasons sufficient to discount Plaintiff’s subjective 23 complaints. For the reasons below, the Court finds the ALJ did not err, and thus, reversal is not 24 warranted. 25 A. The ALJ Did Not Err by Failing to Develop the Record 26 1. Legal Standard 27 An RFC is “an assessment of an individual’s ability to do sustained work-related physical 28 and mental activities in a work setting on a regular and continuing basis.” Social Security Ruling 1 (“SSR”) 96-8p, 1996 WL 374184, at *1 (1996); see also 20 C.F.R. § 416.945(a). It reflects the 2 most that a claimant can do despite their limitations. SSR 96-8p, 1996 WL 374184, at *1. In 3 formulating the RFC, the ALJ must account for all the claimant’s medically determinable 4 impairments, including those that are not “severe,” and evaluate “all of the relevant medical and 5 other evidence.” 20 C.F.R. § 416.945(a); see also Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 6 685, 690 (9th Cir. 2009) (holding that “an RFC that fails to take into account a claimant’s limitations 7 is defective”). Therefore, an ALJ errs when they provide an incomplete RFC ignoring “significant 8 and probative evidence.” Hill v. Astrue, 698 F.3d 1153, 1161-2 (9th Cir. 2012). 9 An RFC assessment is ultimately an administrative finding reserved to the Commissioner. 10 20 C.F.R. § 416.946. The RFC does not need to directly correspond to a specific medical opinion; 11 rather, “the ALJ is responsible for translating and incorporating clinical findings into a succinct 12 RFC.” Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015); see also Stubbs- 13 Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (noting the ALJ’s responsibility to weigh 14 conflicting medical evidence and translate accepted medical opinions into “concrete restrictions”). 15 “ALJs are, at some level, capable of independently reviewing and forming conclusions about 16 medical evidence to discharge their statutory duty to determine whether a claimant is disabled and 17 cannot work.” Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022) (citing Sousa v. Callahan, 143 18 F.3d 1240, 1244 (9th Cir. 1998)). The ALJ’s RFC assessment should be affirmed if the ALJ has 19 applied the proper legal standard and their decision is supported by substantial evidence in the 20 record. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 21 Claimants carry the burden of proving they are disabled. 20 C.F.R. § 404.1512(a). 22 However, “Social Security proceedings are inquisitorial rather than adversarial.” Schiaffino v. Saul, 23 799 Fed. App'x 473, 476 (9th Cir. 2020) (quoting Sims v. Apfel, 530 U.S. 103, 111–12 (2000)). An 24 ALJ has a responsibility to develop a “complete medical history” and to “make every reasonable 25 effort to help [the plaintiff] get medical reports.” 20 C.F.R. § 404.1512(d). “The ALJ always has 26 a ‘special duty to fully and fairly develop the record and to assure that the claimant's interests are 27 considered.’” Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (quoting Brown v. Heckler, 28 713 F.2d 441, 443 (9th Cir. 1983)). 1 The ALJ is not a mere umpire at such a proceeding . . . . it is incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire of, and explore for all 2 the relevant facts. He must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited. 3 4 Id. (quoting Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 1992)). However, the duty to develop 5 the record further is only triggered when there is ambiguous evidence or the record does not allow 6 for proper evaluation of the evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 7 The ALJ’s duty to develop the record fully is heightened when a claimant is mentally ill and unable 8 to protect his or her own interests. Id. If the record includes “specific and sufficient” evidence to 9 evaluate a claim, the record is neither ambiguous nor inadequate. Gurin v. Saul, 842 F. App'x 45, 10 48 (9th Cir. 2021). An ALJ may discharge their duty by subpoenaing claimant's doctors, submitting 11 questions to claimant's physicians, continuing the hearing, or keeping the record open after the 12 hearing to allow supplementation of the record. Tonapetyan, 242 F.3d at 1150. 13 2. Analysis 14 A. The ALJ Did Not Err in Formulating Plaintiff’s Physical RFC 15 Plaintiff first contends the ALJ failed to develop the record because the record did not 16 contain an RFC assessment from an examining physician (Doc. 14 at 8-9); however, the RFC is a 17 legal conclusion reserved to the Commissioner. 20 C.F.R. § 416.946; see also Vertigan v. Halter, 18 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that it is the responsibility of the ALJ, not the 19 claimant's physician, to determine the residual functional capacity.”). The RFC does not need to 20 reflect a specific medical opinion. Rounds, 807 F.3d at 1006. In formulating Plaintiff’s RFC, the 21 ALJ considered reports on Plaintiff’s RFC from state agency physicians G. Spinka, M.D. (May 14, 22 2020) (AR 124) and L. Tanaka, M.D. (June 22, 2020). (AR 22, 128-140). Plaintiff's suggestion 23 that the ALJ had a duty to develop the record further because they only partially credited the state 24 agency examiners is unpersuasive. “An ALJ's duty to develop the record further is triggered only 25 when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation 26 of the evidence.” See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Plaintiff does 27 not point to an opinion that is ambiguous or inadequate, and simply granting less weight to an 28 opinion does not trigger a duty of the ALJ to request additional evaluations. 1 Plaintiff next contends the ALJ erred by relying on records that did not include Plaintiff’s 2 breathing problems or “otherwise did not actually address Plaintiff’s condition.” (Doc. 14 at 10). 3 Regarding Plaintiff’s breathing problems, Plaintiff’s contention that the ALJ erred by relying on 4 records that did not include Plaintiff’s breathing problems is belied by the record. 5 The ALJ relied on hospital records from January 2020 to June 2021, as well as Plaintiff’s 6 subjective complaints to formulate Plaintiff’s RFC. (AR 22, citing AR 462-591). For example, 7 the ALJ considered records that showed a biopsy of the lung nodules showed that they are benign, 8 and Plaintiff did not report a cough or chest pains. (AR 22, citing 541). The ALJ noted 9 Plaintiff’s treating doctor chose to monitor the nodule, and follow-up testing confirmed it was 10 stable. (AR 559-60). The ALJ also considered records showing that Plaintiff underwent 11 pulmonary testing in June 2020, which showed normal lung functioning. (AR 517). When 12 formulating Plaintiff’s RFC, the ALJ also credited Plaintiff’s subjective complaints of dyspnea 13 and his history as a smoker, and included pulmonary restrictions in the RFC. (Doc. 20, 23). The 14 ALJ did not err by failing to consider records related to Plaintiff’s lung issues, nor did he have a 15 duty to develop the record further regarding these complaints. Plaintiff also did not identify any 16 limitations the ALJ should have included in the RFC related to Plaintiff’s breathing problems. 17 See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 692 n.2 (9th Cir. 2009) (rejecting 18 challenge to RFC determination where the claimant did “not detail what other physical limitations 19 follow from the evidence of his knee and shoulder injuries, besides the limitations already listed 20 in the RFC”). 21 Plaintiff repeatedly asserts “[t]he ALJ failed his duty to develop the record and obtain an 22 updated medical opinion regarding Plaintiff’s physical conditions. This is error. Further, this error 23 is harmful as Plaintiff was treated for additional conditions not considered by the state agency 24 medical consultants and testified to limitations that were not addressed within the record.” (Doc. 25 14 at 10-11). It is unclear which conditions Plaintiff believes the ALJ failed to address, nor has 26 Plaintiff identified an ambiguity requiring the ALJ to develop the record further. To the extent 27 Plaintiff contends the ALJ should have ordered an additional report on Plaintiff’s RFC because 28 there were medical records post-dating the state agency examiners reports, the mere existence of 1 medical records post-dating a state agency physician's review does not in and of itself trigger a duty 2 to further develop the record. See, e.g., Charney v. Colvin, No. CV 1-7080 JC, 2014 WL 1152961, 3 at *7 (C.D. Cal. Mar. 21, 2014), aff'd, 647 F. App'x 762 (9th Cir. 2016) (finding that the ALJ did 4 not err in relying on the opinions of state agency physicians that did not account for subsequent 5 medical records where subsequent records were considered by the ALJ and were not inconsistent 6 with RFC); Smith, 2020 WL 6305830, at *8 (concluding “updated opinion is not required simply 7 because additional medical evidence is received after the State agency physicians had already 8 reviewed Plaintiff's records.”). Moreover, “there is always some time lapse between a consultant's 9 report and the ALJ hearing and decision, and the Social Security regulations impose no limit on 10 such a gap in time.” Owen v. Saul, 808 F. App'x 421, 423 (9th Cir. 2020). 11 Plaintiff also contends the ALJ erred by failing to develop the record related to whether 12 Plaintiff required a cane or walker. (Doc. 14 at 11). Plaintiff contends: 13 Further, it is important to note that Plaintiff has a prescription for a cane and a walker. When taken in conjunction with Plaintiff’s testimony, it becomes clear that 14 Plaintiff requires a hand-held assistive device to stand and walk. Although the ALJ stated that there was no evidence in the record to state that the devices were 15 medically necessary, it is also important to note that the records were silent as to the topic of assistive devices entirely. It was not noted that Plaintiff did not need an 16 assistive device any more than it was noted that the devices were not necessary. 17 Particularly as the ALJ relied on the lack of medical necessity of the assistive devices to determine that Plaintiff’s spinal condition did not meet or medically equal 18 the listed impairments, this further indicates the need for an updated medical opinion. 19 20 (Doc. 14 at 11). Plaintiff has again failed to identify an issue that is ambiguous or inadequately 21 developed. The ALJ noted that while Plaintiff has a prescription for a cane and a walker, the 22 evidence did not establish such assistance was medically necessary. (AR 20). For a hand-held 23 assistance device to qualify as medically required, “there must be medical documentation 24 establishing the need for a hand-held assistive device to aid in walking or standing and describing 25 the specific circumstances in which it is needed—i.e., all the time, periodically, or only limited 26 situations, and distance and terrain.” Social Security Ruling (SSR) 96-9p, 1996 WL 374185, at 27 *7. As the ALJ noted, Plaintiff consistently reported walking two miles per day without 28 mentioning an assistance device, and none of his pain management records indicated he used such 1 a device. (AR 20, citing AR 594, 718, 721, 725, 728, 731, 734, 738, 742, 746, 757, 761). The 2 ALJ’s decision may be supported by substantial evidence even if the evidence may support a 3 different conclusion. Edlund, 253 F.3d at 1156 (“If the evidence is susceptible to more than one 4 rational interpretation, the court may not substitute its judgment for that of the Commissioner.”) 5 Plaintiff’s argument is simply a request for the Court to reweigh the medical evidence, which it 6 cannot do. Tommasetti, 533 F.3d at 1038 (the court will uphold the ALJ's conclusion where the 7 evidence is susceptible to more than one rational interpretation). 8 For these reasons, Plaintiff has not demonstrated the ALJ erred by failing to develop the 9 record regarding Plaintiff’s physical RFC. 10 b. The ALJ Did Not Err in Formulating Plaintiff’s Mental RFC 11 Plaintiff also contends the ALJ erred by failing to develop the record related to Plaintiff’s 12 mental RFC. Plaintiff contends the ALJ impermissibly accepted the previous state agency 13 psychological consultants’ finding that Plaintiff’s major depressive disorder was non-severe. (Doc. 14 14 at 11-12). The ALJ could not rely on this opinion, Plaintiff contends, because Plaintiff had 15 rebutted the presumption of continuing non-disability, and therefore, relying on a medical opinion 16 from a previous decision was improper. (Doc. 14 at 12). Plaintiff also contends the ALJ erred 17 because the examiners did not consider Plaintiff’s general anxiety disorder, and there is no medical 18 opinion analyzing the severity of his general anxiety disorder. (Doc. 14 at 11-12). 19 Plaintiff has failed to identify an insufficiency or ambiguity triggering the ALJ’s duty to 20 develop the record further. As the Commissioner notes, Plaintiff did not allege disability because 21 of any mental impairments. (AR 72-75, 79-82, 318-20). At Step Two, the ALJ found Plaintiff’s 22 depression and anxiety were non-severe impairments. (AR 18). To reach this conclusion, the ALJ 23 relied on the mental assessments by State Agency psychological consultants H. Amado, M.D., and 24 Michael D’Adamo, Ph.D., which he found persuasive. (AR 19). While it is not clear whether Dr. 25 Amado and Dr. D’Adamo considered Plaintiff’s general anxiety disorder (their reports note that 26 they considered Plaintiff’s depression, bipolar and “related disorders” [AR 120-21, 133-34]), “[t]he 27 regulations require that an ALJ evaluate the degree to which a non-examining source considers the 28 evidence, not that a failure to consider all evidence requires the source to be discounted.” Elsey v. 1 Saul, 782 Fed. Appx. 636, 637 (9th Cir. 2019) (citing 20 C.F.R. § 404.1527(c)(3)). The ALJ also 2 considered that Plaintiff received limited, conservative treatment, and his mental status exams 3 generally demonstrated unremarkable findings. (AR 19). For instance, Plaintiff attended only two 4 appointments with mental health specialists (AR 18-19; see also AR 598, 611). While the ALJ 5 found Plaintiff had rebutted the presumption of continuing non-disability, the ALJ based this 6 finding on changes to the musculoskeletal listings and because Plaintiff’s lung nodules and 7 sacroiliitis had risen to the level of severe impairment—not because of any changes to Plaintiff’s 8 mental health. (AR 14). The ALJ was not required to obtain additional evidence because the record 9 was sufficient to evaluate Plaintiff’s claim. Therefore, the ALJ did not err by failing to develop the 10 record related to Plaintiff’s mental RFC. 11 B. The ALJ Offered Sufficient Reasons to Discount Plaintiff’s Subjective Complaints 12 1. Legal Standard 13 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 14 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 15 the ALJ must determine whether the claimant has presented objective medical evidence of an 16 underlying impairment that could reasonably be expected to produce the pain or other symptoms 17 alleged. Id. The claimant is not required to show their impairment “could reasonably be expected 18 to cause the severity of the symptom [they] ha[ve] alleged; [they] need only show that it could 19 reasonably have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 20 F.3d 1028, 1036 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence of 21 malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 22 if they give “specific, clear and convincing reasons” for the rejection.6 Id. As the Ninth Circuit 23 has explained: 24 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation 25 for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or 26 inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported 27
28 6 The Court rejects the Commissioner’s contention that a lesser standard of review applies. (See Doc. 14 at 13). 1 by substantial evidence, the court may not engage in second-guessing. 2 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 3 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may 4 consider include a claimant’s work record and testimony from physicians and third parties 5 concerning the nature, severity, and effect of the symptoms of which he complains. Light v. Social 6 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 7 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 8 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 9 2014) (quoting Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 10 General findings are not enough to satisfy this standard; the ALJ “‘must identify what testimony is 11 not credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 12 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester, 81 F.3d at 834). 13 2. Analysis 14 Because the ALJ found Plaintiff’s “medically determinable impairments reasonably could 15 be expected to cause the alleged symptoms,” the only remaining issue is whether the ALJ 16 provided “specific, clear and convincing reasons” for Plaintiff’s adverse credibility finding. See 17 Vasquez, 572 F.3d at 591. Plaintiff contends the ALJ failed to state clear and convincing reasons 18 to discount Plaintiff’s subjective complaints because the ALJ merely summarized Plaintiff’s 19 treatment records. (Doc. 14 at 14). Plaintiff also contends the ALJ does not indicate which of his 20 allegations are not supported by objective findings. (Doc. 14 at 14). Plaintiff’s arguments are 21 unavailing. 22 The ALJ noted Plaintiff’s complaints were inconsistent with the medical records, and 23 “[w]hile a lack of objective medical evidence may not be the sole basis for rejection of symptom 24 testimony, inconsistency with the medical evidence or medical opinions can be sufficient.” 25 Woods v. Comm'r of Soc. Sec. (Woods I), No. 1:20-cv-01110-SAB, 2022 WL 1524772, at *10 n.4 26 (E.D. Cal. May 13, 2022) (emphasis in original). For instance, Plaintiff reported continuing back 27 pain, but Plaintiff’s treating physicians never recommended more invasive treatment over the 28 1 two-year period from June 2019 to June 2021. (Compare AR 385 with AR 757-58). This is a 2 sufficient reason to discount Plaintiff’s testimony. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 3 2007) (“[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant's testimony 4 regarding severity of an impairment.”) (citation omitted). The ALJ also considered 5 inconsistencies in Plaintiff’s testimony, such as Plaintiff’s testimony that he was climbing 6 ladders, working as a painter’s assistant, and trimming hedges despite reporting disabling pain. 7 (AR 22, citing 462, 767-70). The ALJ also noted that while Plaintiff reported a prescription for a 8 cane and walker (AR 753-55), none of his pain management or primary care records mentioned 9 Plaintiff needing a cane or other assistive device. (AR 22). While the “clear and convincing 10 reasons” standard is among the highest in social security standards, “[o]ur cases do not require 11 ALJs to perform a line-by-line exegesis of the claimant's testimony, nor do they require ALJs to 12 draft dissertations when denying benefits.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). 13 The ALJ’s reasoning is easily discernible, and he cited specific evidence that supported his 14 conclusion to reject Plaintiff’s subjective complaints. The ALJ did not err by discounting 15 Plaintiff’s testimony. 16 V. CONCLUSION AND ORDER 17 For the foregoing reasons, the Court finds that the ALJ's decision is supported by substantial 18 evidence in the record as a whole and is based on proper legal standards. Accordingly, the Court 19 DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security. 20 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Martin O’Malley, 21 Commissioner of Social Security, and against Plaintiff Victor Rios. 22 IT IS SO ORDERED. 23 24 Dated: February 12, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 25
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