(SS) Rocha v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP ANTHONY ROCHA, Case No. 1:20-cv-00613-CDB (SS)

12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 13 v. ORDER REMANDING THIS MATTER 14 COMMISSIONER OF SOCIAL FOR FURTHER PROCEEDINGS UNDER SECURITY, SENTENCE FOUR OF 42 U.S.C. § 405(g) 15 Defendant. (Doc. 18) 16 17 18 Plaintiff Phillip Anthony Rocha (“Plaintiff”) seeks judicial review of a final decision of 19 the Commissioner of Social Security (“Commissioner” or “Defendant”) denying the application 20 of claimant and former Plaintiff Gail Rocha for disability insurance benefits and supplemental 21 security income pursuant to Titles II and XVI of the Social Security Act.1 The matter is before 22 the Court on the parties’ briefs which were submitted without oral argument to the United States 23 Magistrate Judge.2 (Docs. 18, 20, 23). After reviewing the record the Court finds that the ALJ’s 24 decision is not supported substantial evidence and applicable law. Plaintiff’s appeal therefore is 25 1 Ms. Rocha passed away on December 22, 2022. (Doc. 27-1). On March 27, 2023, the 26 Court granted Plaintiff’s Motion to Substitute Party, thereby substituting Ms. Rocha’s husband, Phillip Anthony Rocha, as Plaintiff. (Doc. 29). 27

2 The parties consented to the jurisdiction of a United States Magistrate Judge. See Doc. 1 granted. 2 FACTUAL AND PROCEDURAL BACKGROUND3 3 On January 13, 2017, claimant and former plaintiff Gail Rocha filed a Title II application 4 for a period of disability and disability insurance benefits, as well as a Title XVI application for 5 supplemental security income. Plaintiff alleges disabilities that began on January 1 2013. 6 (Administrative Record “AR” 15). Plaintiff’s claim was initially denied on June 30, 2017, and 7 upon reconsideration on September 13, 2017. Plaintiff’s matter proceeded to a hearing before an 8 Administrative Law Judge (ALJ), on April 23, 2019. Plaintiff was represented by counsel during 9 the hearing, at which Denise Weaver, an impartial vocational expert (VE), testified. 10 In connection with an earlier application by Plaintiff for Title II and Title XVI benefits 11 that culminated in a hearing before an ALJ on June 3, 3015, Plaintiff was found “not disabled” by 12 the ALJ. See (AR 68-87). In cases involving a claimant filing for benefits following a prior final 13 agency decision of non-disability, the prior administrative decision triggers a presumption of 14 continuing non-disability. Chavez v. Bowen, 844 F.2d 691, 692-94 (9th Cir. 1988). To overcome 15 this presumption of non-disability, the claimant must prove “changed circumstances” indicating a 16 greater disability. Id. at 693. 17 Examples of “changed circumstances” that can rebut the presumption of non-disability 18 include a change in the claimant’s category under 20 C.F.R. § 404.1563, an increase in the 19 severity of the claimant’s impairments, the alleged existence of an impairment not previously 20 considered, or a change in the criteria for determining disabilities are. (AR 16); Garfield v. 21 Comm’r of Soc. Sec., No. 1:21-cv-01281-EPG, 2022 WL 4586293, at *2 (E.D. Cal. Sept. 29, 22 2022). 23 If the claimant successfully rebuts the presumption, the ALJ nevertheless must give effect 24 to certain findings contained in the final decision issued by an ALJ in the prior claim when 25 adjudicating the current claim. The findings that are given such effect are the claimant’s residual 26 3 The Court has reviewed the relevant portions of the administrative record including the 27 medical, opinion and testimonial evidence about which the parties are well informed, which will not be exhaustively summarized below. Relevant portions will be referenced in the course of the 1 functional capacity (RFC), education, work experience, or other finding required at a step in the 2 sequential evaluation process for determining disability under 20 C.F.R. §§ 404.1520, 416.920, 3 and 416.924. Id. (quoting Smith-Scruggs v. Astrue, No. CV 09-4443-OP, 2010 WL 256546, at *2 4 (C.D. Cal. Jan. 21, 2010)). In other words, the adjudicator must adopt a finding from the final 5 decision on the prior claim unless there is new and material evidence relating to such a finding or 6 there has been a change in the law, regulations or rulings affecting the finding or the method of 7 arriving at the finding. Chavez, 844 F.2d at 693. 8 Here, the ALJ determined that Plaintiff’s presumption of non-disability was effectively 9 rebutted because there was a change in her age category. (AR 16). The ALJ reached his 10 determination after giving effect to the findings contained in the prior decision that remain 11 supported by the record as discussed below; and found that the record as a whole supports a 12 finding of non-disability. 13 The ALJ found that Plaintiff met the insured status requirements through December 31, 14 2015. (AR 18). Following the sequential evaluation, at step one, the ALJ found that Plaintiff has 15 not engaged in substantial gainful activity (SGA) since her alleged onset date (AOD) of 16 November 13, 2015. (Id.). At step two, the ALJ found that plaintiff’s degenerative joint disease 17 of the bilateral knees, carpal tunnel syndrome (CTS), and loss of visual efficiency constituted 18 severe medically determinable impairments (MDI). In contrast, the ALJ found that Plaintiff’s 19 MDIs of psychotic disorder and depressive disorder were not severe. (AR 19). At step three, the 20 ALJ determined that Plaintiff did not have an impairment or combination of impairments that 21 meets or equals the requirements of a listing. (AR 21). 22 The ALJ found that Plaintiff can perform light work as defined on 20 C.F.R. §§ 23 404.1567(b) and 416.967(b). (AR 22). At step four, the ALJ found that Plaintiff was capable of 24 performing her past relevant work (PRW) as a teacher’s aide II. (AR 27). The ALJ gave 25 significant weight to the opinions of the State agency consultants Drs. Samplay M.D. and G. 26 Taylor M.D. (AR 26). On the other hand, the ALJ afforded minimal weight to the verifications 27 of incapacity completed by Alma Ramirez PA, and David Sanchez PA. (AR 26). The ALJ also 1 Mr. Sanchez. (Id.). 2 Accordingly, the ALJ found that Plaintiff was not disabled at step four of the sequential 3 evaluation. Plaintiff requested review from the Appeals Council on March 16, 2020. (AR 1-6). 4 After exhausting her administrative remedies, Plaintiff filed the instant action seeking judicial 5 review pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3).4 6 STANDARD OF LAW 7 A district court’s review of a final decision of the Commissioner of Social Security is 8 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 9 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 10 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 11 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 12 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 13 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 14 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 15 consider the entire record as a whole rather than searching for supporting evidence in isolation. 16 Id. 17 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 18 the Commissioner. “The court will uphold the ALJ’s conclusion when the evidence is susceptible 19 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 20 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 21 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 22 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 23 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 24 U.S. 396, 409-10 (2009).

25 26 4 Plaintiff’s motion for summary judgment was fully briefed by the parties as of October 7, 27 2021 (Doc. 23). The matter was reassigned to the undersigned on October 5, 2022 (Doc. 25). The undersigned regrets the delay in issuing this ruling caused largely by the tremendous backlog 1 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 2 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 3 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 4 activity by reason of any medically determinable physical or mental impairment which can be 5 expected to result in death or which has lasted or can be expected to last for a continuous period 6 of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment 7 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 8 considering his age, education, and work experience, engage in any other kind of substantial 9 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 10 The Commissioner has established a five-step sequential analysis to determine whether a 11 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 12 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the 13 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 14 claimant is not disabled. 20 C.F.R. § 416.920(b). 15 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 16 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 17 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of 18 impairments which significantly limits [his or her] physical or mental ability to do basic work 19 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s 20 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 21 claimant is not disabled. 20 C.F.R. § 416.920(c). 22 At step three, the Commissioner compares the claimant’s impairment to severe 23 impairments recognized by the Commissioner to be so severe as to preclude a person from 24 engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as 25 severe or more severe than one of the enumerated impairments, the Commissioner must find the 26 claimant disabled and award benefits. 20 C.F.R. § 416.920(d). 27 If the severity of the claimant’s impairment does not meet or exceed the severity of the 1 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 2 ability to perform physical and mental work activities on a sustained basis despite his or her 3 limitations, 20 C.F.R. § 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 4 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 5 claimant is capable of performing work that he or she has performed in the past (past relevant 6 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant 7 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If 8 the claimant is incapable of performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the claimant is 10 capable of performing other work in the national economy. 20 C.F.R. § 416.920(a)(4)(v). In 11 making this determination, the Commissioner must also consider vocational factors such as the 12 claimant’s age, education and past work experience. Id. If the claimant is capable of adjusting to 13 other work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 14 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis concludes with a 15 finding that the claimant is disabled and is therefore entitled to benefits. Id. 16 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 17 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 18 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 19 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 20 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 21 ISSUES BROUGHT FOR REVIEW 22 Plaintiff argues that (1) the ALJ’s finding that she had “past relevant work” (PRW) as a 23 teacher’s aide is not supported by substantial evidence; (2) the ALJ committed harmful error by 24 failing to find that Plaintiff’s medically determinable impairments of major depressive disorder 25 and psychotic disorder more than minimally interfere with her ability to sustain work activity at 26 step two and the ALJ committed harmful error by failing to develop the record on Plaintiff’s 27 psychiatric impairments; (3) the RFC is not supported by substantial evidence because it does not 1 rule. 2 DISCUSSION 3 1. Whether the ALJ’s Finding That Plaintiff Has PRW as a Teacher’s Aide II is Supported by Substantial Evidence 4 5 Plaintiff argues that the ALJ erred in concluding Plaintiff had PRW as a Teacher’s Aide 6 II. In relevant part, the ALJ found that Plaintiff has a “sporadic work record punctuated by 7 periods of unemployment.” (AR 25). Among other things, the ALJ found that Plaintiff achieved 8 income consistent with a full year’s engagement in SGA in 2006. (Id.). He further found that 9 Plaintiff stopped working full-time on June 7, 2010, due to budget cuts and not because of her 10 impairments. (AR 26). The ALJ concluded that Plaintiff had not engaged in substantial gainful 11 activity since the alleged onset date of November 13, 2015. (AR 18, citing 20 C.F.R. §§ 12 404.1571 et seq., 416.971 et seq.). 13 At the step four analysis, the ALJ found that Plaintiff could perform past relevant work as 14 a teacher’s aide II – the occupation in which she was employed from 1992 until June 7, 2010. 15 (AR 27). He noted that “[a] job is considered past relevant work if it is work that the claimant 16 has performed within the past 15 years, that met the definition of substantial gainful activity, and 17 that lasted long enough for the claimant to learn to do it.” (Id., citing 20 C.F.R. § 404.1560(b)(1), 18 416.960(b)(1)). The ALJ noted that while Plaintiff was employed during 1995, she earned 19 $7,404.85, which demonstrated engagement in SGA. (AR 27) 20 Under the Social Security Act, a “disability” is defined as the “inability to engage in any 21 substantial gainful activity by reason of any medically determinable physical or mental 22 impairment which can be expected to result in death or which has lasted or can be expected to last 23 for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Thus, at step one 24 of the sequential analysis, the ALJ must determine whether a claimant engaged in substantial 25 gainful activity. 20 C.F.R. §§ 404.1520. If a claimant was engaged in substantial gainful activity 26 after the onset of disability date, the analysis stops, and a finding of not disabled is mandated 27 under the Social Security Act. See 20 C.F.R. §§ 404.1520(b), 416.920(b) (“If you are working and the work you are doing is substantial gainful activity, we will find that you are not disabled 1 regardless of your medical condition or your age, education, and work experience.”). 2 At step four of the sequential evaluation, the claimant has the burden of showing that she 3 lacks the RFC (e.g., ability to perform physical and mental work activities on a sustained basis 4 despite limitations) to engage in “past relevant work.” Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 5 2001); 20 C.F.R. § 404.1520(e). A claimant’s prior work qualifies as “past relevant work” if it 6 “was done within the last 15 years, lasted long enough for [the claimant] to learn to do it, and was 7 substantial gainful activity.” 20 C.F.R. § 416.965(a). Therefore, “[a] job qualifies as past relevant 8 work only if it involved substantial gainful activity.” Id. (emphasis added). 9 “Substantial gainful activity” is defined as “work activity that involved doing significant 10 physical or mental activities . . . that [a clamant does] for pay or profit.” 20 C.F.R. §§ 404.1572, 11 416.972. “Earnings can be a presumptive, but not conclusive, sign of whether a job is substantial 12 activity.” Lewis, 236 F.3d at 515. A presumption arises that a claimant engaged in SGA if the 13 claimant’s monthly income exceeds a certain average that is designated for each calendar year 14 during that relevant 15-year period. 20 C.F.R. §§ 404.1574, 416.974; Keyes v. Sullivan, 894 F.2d 15 1053, 1056 (9th Cir. 1990). In contrast, a “presumption that arises from low earnings shifts the 16 step-four burden of proof from the claimant to the Commissioner.” Lewis, 236 F.3d at 515. 17 Consequently, “when a plaintiff’s low earnings shift the burden to the Commissioner to show 18 other factors warrant characterizing prior work as SGA, the ALJ must presume that prior work is 19 not SGA unless the Commissioner proves otherwise.” Andry v. Colvin, No. 2:12-cv-00746-KJN, 20 2013 WL 5305903, at *3 (E.D. Cal. Sept. 1, 2013). Factors the Commissioner may consider 21 include “the nature of the claimant’s work, how well the claimant does the work, if the work is 22 one under special conditions, if the claimant is self-employed, and the amount of time the 23 claimant spends at work.” Lewis, 236 F.3d at 515-16 (citing 20 C.F.R. §§ 404.1573, 416,973). 24 Plaintiff argues that the ALJ committed error at step four. First, she argues it was 25 improper for the ALJ to reference her work history in 1995 (during which the ALJ found 26 Plaintiff’s income qualified the employment as SGA) because that year falls outside the 15-year 27 window for which the ALJ may consider past relevant work. (Doc. 18, pp. 14-15). However, the 1 2019 WL 93273, at *8 (E.D. Cal. Jan. 3, 2019) (citing 20 C.F.R. § 404.1565(a) and SSR 82-62, 2 1982 WL 31386, at *2). Furthermore, even if true, Plaintiff’s argument does not undermine the 3 ALJ’s conclusion that Ms. Rocha did engage in SGA during the relevant period – in particular, 4 during 2006. (AR 25). Plaintiff acknowledges as much in her briefing and also concedes earning 5 more than the minimum threshold amounts permitted in 2001. (Doc. 18, p.10). 6 Plaintiff also cites the Court of Appeals’ decision in Keyes for the proposition that “the 7 mere existence of earnings over the statutory minimum is not dispositive.” (Doc. 18 at 10-11) 8 (citing Keyes, 894 F.3d at 1056). Though Plaintiff’s citation is correct, the Court in Keyes 9 reaffirmed “there is a presumption of substantial gainful employment if the applicant earns over 10 the amount specified in the guidelines.” Id. In such cases, the claimant bears the burden of proof 11 to rebut the presumption of SGA “with evidence of his inability to be self-employed or to perform 12 the job well, without special assistance, or for only brief periods of time.” Id. See 20 C.F.R. § 13 416.973(c). Plaintiff points to her testimony that she worked on average only 15 to 20 hours of 14 week during the school year. (AR 46). However, that does not constitute a “brief period of time” 15 sufficient to rebut the presumption as work may be substantial even if it is done on a part-time 16 basis. 20 C.F.R. § 416.972(a). In addition, Plaintiff fails to support with record facts or otherwise 17 demonstrate that her less-than-full-time work hours related to an inability to work for longer 18 periods of time. To the contrary, Plaintiff ceased working as a teacher’s aide due to budget cuts 19 and not because of impairments. (AR 25). 20 The ALJ properly found that Plaintiff had earnings above the statutory minimum during 21 the relevant period and Plaintiff has not rebutted the presumption that she was engaged in SGA. 22 Keyes, 894 F.2d at 1056. Accordingly, the ALJ’s findings that Plaintiff had PRW as a teachers’ 23 aide II at step four are supported by substantial evidence. 24 2. Whether the ALJ’s Finding of Plaintiff’s RFC Properly Accounted for Plaintiff’s Vision Impairment 25 26 The RFC is an assessment of the sustained, work-related physical activities that a claimant 27 can still do on a regular and continuing basis despite the claimant’s limitations. 20 C.F.R. §§ 404.1520(e), 404.1545(a), 416.645(a); see Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir. 1 1985) (RFC reflects current “physical and mental capabilities”). The RFC is not a medical 2 opinion, but a legal decision that expressly is reserved for the Commissioner. Vertigan v. Halter, 3 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that it is the responsibility of the ALJ, not the 4 claimant’s physician, to determine residual functional capacity.”) And where “the record 5 contains conflicting medical evidence, the ALJ is charged with determining credibility and 6 resolving the conflict.” Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). “[T]he ALJ is 7 the final arbiter with respect to resolving ambiguities in the medical evidence.” Tommasetti, 533 8 F.3d at 1041 (citations omitted). In reviewing a claim the ALJ committed error in determining 9 the RFC, the relevant inquiry is whether the medical evidence supports the ALJ’s finding. 10 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-1174 (9th Cir. 2008). 11 Plaintiff argues that the RFC is not supported by substantial evidence as the ALJ failed to 12 account for her visual limitations. The ALJ assigned significant weight to the opinions of Drs. 13 Samplay and Taylor after finding they were based upon comprehensive reviews of the record and 14 were accompanied by detailed narratives of the evidence the consultants relied upon in rendering 15 their conclusions. (AR 26). Drs. Samplay and Taylor both relied on the ophthalmology treatment 16 records from Dr. Samuel Hinton who found that Plaintiff’s best corrected vision was 20-25 OD 17 and 20/20 OS. See (AR 468, 504). Following a review of Dr. Hinton’s records, Dr. Samplay 18 noted that Plaintiff had “narrow angle s/p LPI, glaucoma suspect, cataract.” (AR 102-03). Dr. 19 Taylor acknowledged Plaintiff’s “blurred vision” but recorded Plaintiff otherwise had no visual 20 limitations. (AR 164). Therefore, since the ALJ relied on Drs. Samplay and Taylor’s reports in 21 assessing Plaintiff’s RFC, who in turn relied on Dr. Hinton’s ophthalmology findings, the ALJ’s 22 RFC is supported by substantial evidence. 23 Plaintiff separately argues the ALJ committed error by eliciting testimony from a VE 24 based on a hypothetical that did not include “all of the claimant’s functional limitations, including 25 in this case, sudden blurry vision and pain which cannot be corrected.” (Doc. 18 at 28). 26 However, an ALJ properly may limit his hypotheticals to restrictions that he concludes are 27 supported by substantial evidence on the record. Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 1 ALJ’s finding that Plaintiff had no restrictions due to her vision impairments was supported by 2 substantial evidence, he likewise did not err by not including the visual impairments in the 3 hypothetical. 4 3. Whether the ALJ Erred by Failing to Find that Plaintiff’s MDI of Major Depressive Disorder and Psychotic Disorder More than Minimally Interfered with Her Ability 5 to Sustain Work Activity at Step Two. 6 The ALJ found that Plaintiff’s medically determinable impairments of psychotic disorder 7 and depressive disorder were non-severe. (AR 19). He reached his determination by analyzing 8 the four areas of mental function known as the “paragraph B” criteria which consists of: 9 understanding, remembering, or applying information; interacting with others; concentrating, 10 persisting, or maintaining pace; and adapting or managing oneself. See 20 C.F.R., Pt. 404, 11 Subpart P, App. 1. 12 The ALJ noted that Plaintiff has a history of taking Zoloft to manage her mental 13 impairments, which he found to effectively treat those impairments, and noted that the majority 14 of Plaintiff’s psychiatric testing in the administrative record yielded normal findings. The ALJ 15 cited Plaintiff’s Adult Function Report, dated April 5, 2017, in which Plaintiff denied having 16 problems remembering things, completing tasks, concentrating, understanding things, following 17 instructions, or getting along with others. (AR 20, citing AR 324-25). The ALJ further found 18 that Plaintiff was able to meet her personal care and grooming needs, perform household chores 19 and leave her house independently. (AR 20). 20 Likewise, the ALJ found that most of the psychiatric testing documented in the record 21 consisted of normal medical findings, attributable in part to the apparent usefulness of the 22 prescription of Zoloft. (Id.). The ALJ noted that on September 28, 2018, Plaintiff presented as 23 anxious, with a mild impairment in her ability to make reasonable decisions, and reported 24 auditory hallucinations, but lacked any objective indicators of active psychosis. On July 25, 25 2018, Plaintiff was referred to Community Medical Centers due to reported hallucinations. She 26 had a blunted affect and displayed delusions of grandeur, but Plaintiff also tested positive for 27 methamphetamine. (AR 677, 680, 688). 1 2019, with depressed and anxious affect as well as auditory hallucinations. Dr. Sarah Morgan 2 prescribed her with risperidone and Lexapro. (AR 825). The ALJ listed two other examples, one 3 on March 19, 2019, and another on March 28, 2019, during which Plaintiff presented to Dr. 4 Morgan with auditory hallucinations. (AR 821, 815). 5 Ultimately, the ALJ assigned significant weight to the opinions of non-examining State 6 agency consultants Drs. H. Samplay M.D. and G. Taylor, M.D. see generally (AR 92-113, 114- 7 135, 138-152, 153- 167). The ALJ acknowledged that some evidence was added to the record 8 after the State agency consultants reviewed it, but nevertheless found that the additional evidence 9 did not document an appreciable worsening of Plaintiff’s condition after the State agency 10 consultants’ opinions were rendered. (AR 26). 11 Plaintiff accurately notes that the State agency opinions were based on evidence that was 12 received and reviewed through June 29, 2017. (AR 134, 147). However, the record indicates that 13 following her son’s suicide on February 14, 2019, Plaintiff’s depression and psychosis symptoms 14 may have appreciably deteriorated. 15 On February 26, 2019, Plaintiff presented to Dr. Morgan with concerns that she was 16 hearing voices. (AR 823). Plaintiff informed Dr. Morgan of her son’s loss and complained that 17 she had been hearing voices for the last six years after she “rebuked the devil on the west side.” 18 (Id.). Plaintiff reported that she used methamphetamine from 2011 to 2014 and began drinking 19 two “Twisted Teas” every day since her son’s passing. (AR 824). 20 According to Dr. Morgan’s mental status exam, Plaintiff reported her history of using 21 cocaine and methamphetamine. (AR 824). Several weeks later, on March 19, 2019, Plaintiff 22 presented to Maysee Yang, LCSW, and reported hearing voices “every day, all day long.” She 23 further presented anxious thoughts, depressed mood, difficulty concentrating, and diminished 24 interest or pleasure. (AR 817-18). On March 28, 2019, Plaintiff again presented to Dr. Morgan 25 with complaints of auditory hallucinations. (AR 814-16). Dr. Morgan increased Plaintiff’s 26 Lexapro dosage to deal with her depressive disorder and noted: “[Patient] requires higher level of 27 care than [United Health Centers] can provide.” Dr. Morgan recommended Plaintiff undergo an 1 physiological condition.” (AR 816). 2 Plaintiff asserts that the ALJ erred by failing to obtain an opinion from an examining 3 source or submit the updated records to a medical professional for interpretation. “In Social 4 Security cases, the ALJ has a special duty to develop the record fully and fairly and to ensure that 5 the claimant’s interests are considered, even when the claimant is represented by counsel.” 6 Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). “The ALJ’s duty to develop the record 7 fully is also heightened where the claimant may be mentally ill and thus be unable to protect her 8 own interests. Ambiguous evidence, or the ALJ’s own finding that the record is inadequate to 9 allow for proper evaluation of the evidence, triggers the ALJ’s duty to conduct an appropriate 10 inquiry.” Tonapetyan v. Halter, 242 F.3d 114, 1150 (9th Cir. 2001) (internal quotes and citations 11 omitted). The ALJ may discharge this duty by subpoenaing the claimant’s physicians, submitting 12 questions to the claimant’s physicians, continuing the hearing, or keeping the record open after 13 the hearing to allow supplementation of the record. Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 14 1998). However, the ALJ’s duty to develop the record is “triggered only when there is 15 ambiguous evidence, or the record is inadequate for proper evaluation of the evidence.” Mayes, 16 276 F.3d at 459-60 (emphasis added). An updated opinion is not required simply because 17 additional medical evidence is received after the State agency physicians had already reviewed 18 Plaintiff’s records. See de Hoog v. Comm’r of Soc. Sec., No. 2:13-cv-0235-KJN, 2014 WL 19 3687499, at * 7 (E.D. Cal. July 23, 2014) (explaining that “[i]n virtually every case further 20 evidence is received after the state agency physicians render their assessments – sometimes 21 additional evidence and records are even received after the ALJ hearing. For that very reason, the 22 ALJ is tasked with considering evidence in the record as a whole.”) 23 The duty to develop may arise in situations where the subsequent objective evidence 24 suggests a condition that could materially impact the disability decision. Molina v. Berryhill, No. 25 2:17-cv-01991 CKD, 2018 WL 6421287, at *3 (E.D. Cal. Dec. 6, 2018), or where the later 26 records consist of “raw medical data.” Escudero v. Comm’r of Soc. Sec., No. 1:18-cv-01136-EPG, 27 2019 WL 4917634, at *2 (E.D. Cal. Oct. 4, 2019) (finding the ALJ improperly failed to develop 1 was not “self-evident” and instead “appear[ed] to be very medical in nature and not susceptible to 2 a lay understanding.”); Goodman v. Berryhill, No. 2:17-cv-01228-CKD, 2019 WL 79016, at *5 3 (E.D. Cal. Jan. 2, 2019) (subsequent medical evidence giving rise to duty to develop the record 4 when it related to “significant medical events relevant to plaintiff’s physical condition.”) 5 Responding to Plaintiff’s argument, the Commissioner cites Rivera v. Berryhill, No. 1:16- 6 cv-1930-GSA, 2018 WL 1083871, at *6 (E.D. Cal. Feb. 28, 2018). (Doc. 20 at 21). In Rivera, the 7 claimant failed to present “everything that supports a disability determination,” including medical 8 or other evidence relating to the alleged impairment’s effect on the claimant’s ability to work. Id. 9 The claimant had sought treatment only six months prior to the hearing, did not testify to the 10 impairment’s effects on her ability to work, and refused medication to treat her symptoms. Id. 11 Here, the Commissioner contends that the ALJ “properly evaluated the extremely limited mental 12 health treatment records and Mr. Sanchez’s questionnaires in concluding that Plaintiff did not 13 have a severe mental impairment or limitation in her ability to perform basic mental work 14 activities in the RFC finding.” 15 However, this case is distinguishable from Rivera in several important respects. Although 16 Plaintiff did not testify concerning her mental impairments during her hearing before the ALJ, she 17 identified depressive disorder and psychotic disorders as severe impairments in her pre-hearing 18 brief. (AR 368). Plaintiff’s sustained record of reporting mental impairments to her medical 19 providers (between 2013 and 2019) is more substantial than the Plaintiff in Rivera. Furthermore, 20 Plaintiff’s medical records generally allude to methamphetamine use but it is ambiguous how and 21 the extent to which that bears on any mental impairment suffered by Plaintiff. 22 The medical records demonstrate that Plaintiff’s mental health conditions predictably 23 worsened following her son’s suicide in February 2019, in the weeks leading up to her hearing 24 before the ALJ on April 23, 2019. Curiously, Plaintiff did not present this development during 25 her affirmative testimony and was not questioned about the circumstances by either the ALJ or 26 counsel. (AR 37). According to Dr. Morgan and Ms. Yang’s records, Plaintiff’s increased 27 auditory hallucinations appear to be unrelated to the use of illicit substances. (AR 818, 825) 1 extremely limited. (Doc. 20 at 17). While the Commissioner nevertheless argues that the ALJ 2 properly evaluated those limited records, the ALJ is not a “mere umpire” during disability 3 proceedings. Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006). Rather, the ALJ has “a 4 special duty to fully and fairly develop the record and to assure that the claimant’s interests are 5 considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). This is especially true when 6 the claimant may have a mental impairment. Delorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 7 1991). The ALJ’s failure to further develop the record is not harmless. Although further 8 development of the record may not yield any further significant findings in respect to Plaintiff’s 9 mental health impairments, there is a genuine probability that the reviewing experts may reach a 10 different conclusion or would have offered different findings in respect to Plaintiff’s RFC based 11 on these additional facts and circumstances. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 932- 12 33 (9th Cir. 2014) (finding harmful legal error where ALJ did not discharge his duty to 13 supplement the record). 14 CONCLUSION AND ORDER 15 For the reasons set forth above, the Court finds that remand is appropriate under 42 U.S.C. 16 § 405(g) for further development of the record. The Court declines to issue an award of benefits 17 under the “credit-as-true” rule. The “credit-as-true” rule is applicable where (1) the record has 18 been fully developed and further administrative proceedings are not useful; (2) the ALJ has failed 19 to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or 20 medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ 21 would be required to find the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995, 22 1020 (9th Cir. 2014). Even if all the conditions of the “credit-as-true” rule are met, the Court 23 nevertheless retains “flexibility to remand for further proceedings when the record as a whole 24 creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the 25 Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 26 2015). 27 In this case, Dr. Morgan and Ms. Yang’s medical records indicate that Plaintiff had an 1 | 2019. The reports of both the State agency consultants and Mr. Sanchez predate Plaintiff's visits 2 | to Dr. Morgan and Ms. Yang, and thus none had the benefit of those records to incorporate into 3 | their findings. On remand, Plaintiffs’ record of medical impairments for the relevant period 4 | should be supplemented where possible, and the State agency reviewing consultants should have 5 || access to those records when developing their RFC reports. Since there is lingering doubt as to 6 | whether Plaintiff is disabled within the meaning of the Social Security Act, the “credit-as-true” 7 | rule will not be applied. 8 Because the Court finds that the ALJ’s decision is not supported by substantial evidence 9 | as to the severity of the MDIs of major depressive disorder and psychotic disorder, it is HEREBY 10 | ORDERED the ALJ’s decision is VACATED, and the case is REMANDED to the ALJ for 11 | further proceedings consistent with this Order. 12 The Clerk of this Court is DIRECTED to enter judgment in favor of Plaintiff Phillip 13 | Anthony Rocha and against Defendant Kilolo Kijakazi, Acting Commissioner of Social Security. 14 | IT IS SO ORDERED. Dated: _ July 25, 2023 | Wr bo 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 16