2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 LAURA RODRIGUEZ MIRANDA, Case No. 1:20-cv-01250-SKO 11 Plaintiff,
12 v. ORDER ON PLAINTIFF’S SOCIAL 13 SECURITY COMPLAINT KILOLO KIJAKAZI, 14 Acting Commissioner of Social Security,1 15 Defendant. (Doc. 1) 16 17 _____________________________________/ 18 I. INTRODUCTION 19 20 Plaintiff Laura Rodriguez Miranda (“Plaintiff”) seeks judicial review of a final decision 21 of the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her 22 applications for disability insurance benefits (“DIB”) and Supplemental Security Income (SSI) 23 under the Social Security Act (the “Act”). (Doc. 1.) The matter is currently before the Court on 24 the parties’ briefs, which were submitted, without oral argument, to the Honorable Sheila K. 25 Oberto, United States Magistrate Judge.2 26 1 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 28 of the Commissioner shall, in [their] official capacity, be the proper defendant”). 1 II. BACKGROUND 2 On November 14, 2016, Plaintiff protectively applied for DIB and SSI payments, alleging 3 she became disabled on June 13, 2012, due to back surgery, high blood pressure, depression, low 4 back pain, anxiety, and arthritis. (Administrative Record (“AR”) 27, 32, 114–15, 126–27, 141, 5 155, 170, 182, 321.) Plaintiff was born on August 17, 1964, and was 47 years old on the alleged 6 disability onset date. (AR 36, 114, 126, 140, 154, 327, 346, 358.) Plaintiff has a high school 7 education, can read and write in English, but has limited oral communication skills. (AR 36, 58– 8 59, 72, 124, 136, 151, 165, 322.) 9 A. Relevant Evidence of Record3 10 1. Medical Evidence 11 In August 2014, Plaintiff presented to the emergency department complaining of left-sided 12 numbness and weakness. (AR 462–77.) A history of hypertension and low back pain was noted. 13 (AR 466.) A physical exam indicated Plaintiff was in no distress, had normal tone and power, 14 normal gait, intact joints, and normal range of motion. (AR 474.) An MRI of her head showed “a 15 few small focal areas of white matter T2 signal abnormality present, which are non-specific,” but 16 no evidence of acute infarct, intracranial hemorrhage, or mass. (AR 464.) 17 Plaintiff was transported by ambulance in November 2015 after having taken six Vicodin 18 pills to treat her lower back pain. (AR 619–20.) She was assessed with “10-10 lower back pain,” 19 with an intact neuro examination, equal sensation, movement, grips, and push/pull. (AR 620.) 20 In August 2016, Plaintiff presented for lab results. (AR 645–51.) She reported her 21 symptoms were chronic and mild, and she denied chest pain, edema, and irregular heartbeat. (AR 22 645, 648.) Later that month, Plaintiff underwent several procedures, including: L3-S1 posterior 23 spinal fusion; L3-4, L4-5, and L5-S1 transforaminal lumbar interbody fusion; L3-4, L4-5 24 decompressive laminectomy/fasciectomy to decompress neural elements; L5-S1 decompressive 25 laminectomy/facetectomy including resection of synovial cyst; L3-S1 posterior spinal 26 instrumentation; and use of synthetic intervertebral cages for arthrodesis at the L3-4, L4-5, and L5- 27
28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 S1 levels. (AR 751–55.) The postoperative diagnoses were lumbar stenosis, cauda equina 2 impingement, lumbar instability, lumbar spondylolisthesis, foot drop, lumbar radiculopathy with 3 motor deficit, lumbar disk herniations, congenital short pedicle syndrome, lumbar synovial cyst, 4 and failed medical/conservative management. (AR 751.) 5 A CT of the lumbar spine performed in September 2016 revealed moderate diffuse annular 6 bulge with osteophytes at L1-2 as well as mild widening of the facet joints; mild neural foraminal 7 narrowing bilaterally at L2-3 secondary to annular bulge; prior laminectomy and fusion from L3 8 to S1; evidence for a bone fragment in the left lateral recess at the L3-4 level; and mild facet 9 widening and mild facet osteoarthritis at L2-3. (AR 915.) 10 In October 2016, Plaintiff presented for an appointment following her fusion surgery in 11 August 2016. (AR 906–09.) She reported feeling “significantly better” and that her “strength had 12 improved dramatically.” (AR 906.) She wore a lumbar brace for her physical examination, which 13 showed 4+/5 weakness in the right tibialis anterior and extensor hallucis longus and increased 14 sensation to light touch over the right anterior shin. (AR 907.) Plaintiff’s straight leg raising sign 15 was negative. (AR 907.) 16 Plaintiff presented for another follow up in December 2016, and reported her leg pain had 17 improved. (AR 1073–74.) She still reported “some discomfort” in her left sacroiliac (“SI”) joint, 18 and noted that physical therapy is “helping some.” (AR 1073.) On physical examination, Plaintiff 19 walked with good coronal and sagittal balance. (AR 1074.) She was “quite tender to light touch 20 rather diffusely” in her lumbar spine, but more so significantly tender over her right SI joint, left 21 greater trochanter, and iliotibial band. (AR 1074.) Plaintiff’s motor strength was 5/5 in the lower 22 extremities and range of motion in the hip was intact, but some pain was reproduced in the left 23 greater trochanter region with external rotation of the hip. (AR 1074.) Her straight leg raising sign 24 was negative. (AR 1074.) She was assessed with sacroiliitis, myofascial pain syndrome, 25 trochanteric bursitis in the hip, and status post lumbar fusion. (AR 1075.) It was noted that Plaintiff 26 would continue with physical therapy, declined an injection, and began a trial of anti-inflammatory 27 medication. (AR 1075.) 28 In February 2017, Plaintiff underwent a left SI joint injection and a left trochanteric bursa 1 injection for treatment of low back pain, degenerative disc disease, status post lumbar fusion, SI 2 joint dysfunction, and trochanteric bursitis. (AR 933–34.) Later that month, she reported 100% 3 improvement on the left side, with some pain on the right side. (AR 917.) She denied radiating 4 pain. (AR 917.) Plaintiff’s physical examination showed limited range of motion in her trunk due 5 to stiffness, but no pain reported. (AR 920.) Sensation in her left lower extremity was diminished 6 diffusely below the knee and foot, and there was moderate tenderness to the SI joints on the right 7 side. (AR 920.) She was assessed with status post lumbar fusion, sacroiliitis, other intervertebral 8 disc degeneration in the lumbar region, and bursitis. (AR 920.) Plaintiff expressed an interest in 9 returning to physical therapy and was referred to a therapist. (AR 920.) 10 Plaintiff presented for a follow up appointment in March 2017, reporting a “little bit of pain 11 on the right side,” but manageable. (AR 922.) She was “hoping to return to work . . . as a home 12 health aide.” (AR 922.) On examination, Plaintiff sat in an office chair. (AR 923.) She walked 13 with good coronal and sagittal balance, and had mild tenderness to palpation over the lower 14 paraspinal muscles. (AR 923.) There was minimal tenderness over the SI joints, and no tenderness 15 over the greater trochanters. (AR 923.) Plaintiff had 5/5 motor strength to manual testing, and 16 negative straight leg raising signs. (AR 923.) X-rays showed “well-healing fusion” and she was 17 noted to be doing “reasonably well.” (AR 924.) The surgeon noted that “[a]t this time, I think it 18 is very reasonable for her to return to work with no specific restrictions.” (AR 924.) 19 In May 2017, Plaintiff presented for a “recheck” of her lumbar spine. (AR 925–28.) She 20 reported completing physical therapy, which was “helpful,” but that her pain has returned in her 21 left side of the SI joint and hips as well as into the gluteal region. (AR 925.) According to Plaintiff, 22 her pain level on average is an 8–9 at a maximum of 10. (AR 925.) On examination, she had 23 antalgic gait, diminished sensation diffusely below the knee and foot of the left lower extremity, 24 and decreased motor strength in the left lower extremity. (AR 926–27.) Her seated and supine 25 straight leg raise test bilaterally was positive, and palpation to the SI joints was markedly tender on 26 the left side. (AR 927.) 27 In July 2017, Plaintiff underwent a bilateral SI joint and bilateral piriformis trigger point 28 injection. (AR 936–40.) She was assessed with SI joint dysfunction and myofascial pain. (AR 1 936.) That same month, Plaintiff complained of “tolerable” tingling and numbness in her left 2 fingertips that seemed to increase with stress. (AR 929.) She reported being “overall 100% better 3 and [sic] the areas injected.” (AR 929.) A physical examination showed antalgic gait, diminished 4 sensation diffusely below the knee and foot of the left lower extremity, and decreased motor 5 strength in the left lower extremity. (AR 930–31.) Plaintiff also had a negative seated and supine 6 straight leg raise test bilaterally, normal light touch sensation testing over the hands, fingers, and 7 upper extremities, and nontender palpation to the lumbar spine and SI joints. (AR 930–31.) 8 Physical therapy was recommended. (AR 931.) 9 2. Opinion Evidence 10 In January 2017, Kavitha Reddy, M.D., a state agency physician, reviewed the record and 11 assessed Plaintiff’s residual functional capacity (RFC).4 (AR 121–23, 133–35.) Dr. Reddy found 12 that Plaintiff could occasionally lift and/or carry 20 pounds and frequently 10 pounds; stand and/or 13 walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; 14 perform unlimited pushing and pulling, subject to the lift-and-carry restrictions; occasionally climb 15 ramps and stairs and stoop; and not climb ladders, ropes, and scaffolds. (AR 121–22, 133–34.) 16 Upon reconsideration in April 2017, another state agency physician, J. Bonner, M.D., reviewed the 17 record and affirmed Dr. Reddy’s findings, except that they limited Plaintiff’s ability to crawl to 18 “frequently.” (AR 148–50, 162–64.) 19 B. Administrative Proceedings 20 The Commissioner denied Plaintiff’s application for benefits initially on February 6, 2017, 21 and again on reconsideration on April 28, 2017. (AR 170–74, 182–88.) Consequently, Plaintiff 22 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 189–90.) 23 On January 8, 2019, Plaintiff appeared with counsel and an interpreter, and testified before 24
25 4 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 27 individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 1 an ALJ as to her alleged disabling conditions. (AR 70–80.) A vocational expert (“VE”) also 2 testified at the hearing. (AR 81–89.) 3 1. Plaintiff’s Testimony 4 At the hearing, Plaintiff testified that she completed the eleventh grade and had a nursing 5 assistant certificate. (AR 72.) She last worked for five months in 2018 for three hours a day, five 6 days a week, assisting and accompanying an individual (“keep[ing] him company and talk[ing] 7 to him”), as well as cleaning the house and preparing food. (AR 72-73, 79.) Plaintiff testified 8 that she started at noon and “the pain was always there.” (AR 79–80.) She cleaned “very little,” 9 because the individual had a nephew who helped with keeping the house clean. (AR 80.) After 10 her three-hour shift, Plaintiff would go home and lie down. (AR 80.) Plaintiff stopped working 11 because the individual passed away, and afterwards, Plaintiff applied again at the same company 12 but was not called back. (AR 73.) 13 Plaintiff testified that she had a lot of back pain when it was cold, and stated that she could 14 not stand unless she wore two back braces and took “a lot of medication.” (AR 74–75.) “At 15 times” she had to use a cane. (AR 76). She testified that she could not lift a gallon of milk and 16 could not reach with her right arm. (AR 76–78.) Plaintiff has “nerves pulling” in her hands and 17 “cramps all the time” in her right knee. (AR 78.) According to Plaintiff, she could sit for up to 18 an hour and walk a block. (AR 78–79.) 19 2. Vocational Expert’s Testimony 20 The VE testified that Plaintiff had past relevant work as a certified nursing assistant, 21 Dictionary of Operational Titles (“DOT”) code 355.674-014, with a medium exertional level and 22 a specific vocational preparation (SVP)5 of 4. (AR 82.) Plaintiff also had past relevant work as 23 a home attendant, DOT code 354.377-014, with a medium exertional level as generally performed 24 and an SVP of 3. (AR 82.) According to the VE, Plaintiff performed the home attendant work 25 at the exertional level of “mostly light, probably with a sit/stand option.” (AR 82) 26 5 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in 28 the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level 1 The ALJ asked the VE to consider a person of Plaintiff’s age and education, and work 2 experience, and that this person would be limited to lifting and carrying 20 pounds occasionally, 3 10 pounds frequently; sitting, standing, and/or walking six hours in an eight-hour day; frequent 4 climbing of ramps and stairs; occasional climbing of ladders, ropes, and scaffolds; frequent 5 balancing; occasional stooping; and frequent kneeling, crouching, and crawling. (AR 82.) The 6 VE testified that such a person could perform Plaintiff’s past relevant work as a home attendant, 7 as performed. (AR 83.) The VE further testified that such a person could perform other, light 8 positions under the DOT in the national economy, such as cleaner, DOT code 323.687-014 and 9 SVP 2; a silver wrapper, DOT code 318.687-018 and SVP 1; and a marker, DOT Code 209.587- 10 034 and SVP 2. (AR 83.) 11 In a second hypothetical, the VE was asked by the ALJ to consider the same person as in 12 the first hypothetical, but that the person is further limited to lifting and carrying 10 pounds 13 occasionally and less than 10 pounds frequently; and standing and walking just two hours in an 14 eight-hour day. (AR 83.) The VE testified that no prior work would be available, but that such 15 a person could perform other, sedentary positions under the DOT in the national economy, such 16 as document preparer, DOT code 249.587-018 and SVP 2; a toy stuffer, DOT code 731.685-014 17 and SVP 2; and an addresser, DOT Code 209.587-010 and SVP 2. (AR 83–84.) In a third 18 hypothetical, the ALJ asked the VE to consider the person presented in the second hypothetical, 19 but who would be off task 15% of the workday. (AR 84.) The VE responded that there would 20 be no work such a person could perform. (AR 84.) 21 In a fourth hypothetical, Plaintiff’s counsel asked the VE to consider the same person as 22 in the first hypothetical, but include the additional limitation of occasional reaching in all 23 dimensions with the right dominant extremity. (AR 84.) The VE testified that the individual 24 could not perform Plaintiff’s past work, but could perform other, light jobs in the national 25 economy, such as usher, DOT code 344.677-014 and SVP 2; and furniture rental clerk, DOT code 26 295.357-018 and SVP 2. (AR 85.) In a fifth hypothetical, Plaintiff’s counsel asked the VE to 27 consider the same person as in the second hypothetical, but include the additional limitation of 28 occasional reaching in all dimensions with the right dominant extremity. (AR 87.) The VE 1 testified that the individual could not perform Plaintiff’s past work, but could perform other, 2 sedentary jobs in the national economy, such as callout operator, DOT code 237.367-014 and 3 SVP 2; and surveillance systems monitor, DOT code 379.367-010 and SVP of 2. (AR 87.) In a 4 sixth, and last, hypothetical, Plaintiff’s counsel asked the VE to consider the same person as in 5 the first hypothetical, but include the additional limitations of occasional reaching in all 6 dimensions with the right dominant extremity and a likelihood of missing three days in an average 7 month due to pain. (AR 88.) The VE testified there was no work such a person could perform. 8 (AR 88.) 9 C. The ALJ’s Decision 10 In a decision dated February 27, 2019, the ALJ found that Plaintiff was not disabled. (AR 11 27–38.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. §§ 404.1520, 12 416.920. (AR 29–38.) The ALJ determined that Plaintiff had not engaged in substantial gainful 13 activity since June 13, 2012, the alleged onset date (step one). (AR 29.) At step two, the ALJ 14 found the following impairment severe: spine disorder, status post-surgery. (AR 29–31.) Plaintiff 15 did not have an impairment or combination of impairments that met or medically equaled one of 16 the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). 17 (AR 31–32.) 18 The ALJ then assessed Plaintiff’s RFC and applied the RFC assessment at steps four and 19 five. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (“Before we go from step three to step four, 20 we assess your residual functional capacity . . . . We use this residual functional capacity assessment 21 at both step four and step five when we evaluate your claim at these steps.”). The ALJ determined 22 that Plaintiff had the RFC: 23 to perform light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b) except [Plaintiff] can occasionally lift/carry 20 pounds and frequently lift/carry 10 pounds; 24 can sit for 6 hours; can stand for 6 hours; can walk for 6 hours; can push/pull as 25 much as she can lift/carry; can frequently climb ramps and stairs; can occasionally climb ladders, ropes, or scaffolds; can frequently balance; can occasionally stoop; 26 and can frequently kneel, crouch, and crawl. 27 28 1 (AR 32–36.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 2 expected to cause the alleged symptoms[,]” they rejected Plaintiff’s subjective testimony as “not 3 entirely consistent with the medical evidence and other evidence in the record . . . .” (AR 33.) 4 The ALJ determined that Plaintiff was unable to perform her past relevant work (step 4), 5 but was not disabled because, given her RFC, she could perform a significant number of other jobs 6 in the local and national economies, specifically cleaner, silver wrapper, and marker (step 5). (AR 7 37.) 8 Plaintiff sought review of this decision before the Appeals Council, which denied review 9 on January 13, 2020. (AR 7–14.) Therefore, the ALJ’s decision became the final decision of the 10 Commissioner. 20 C.F.R. §§ 404.981, 416.1481. 11 III. LEGAL STANDARD 12 A. Applicable Law 13 An individual is considered “disabled” for purposes of disability benefits if they are unable 14 “to engage in any substantial gainful activity by reason of any medically determinable physical or 15 mental impairment which can be expected to result in death or which has lasted or can be expected 16 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 17 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 18 impairment or impairments are of such severity that [they are] not only unable to do [their] previous 19 work but cannot, considering [their] age, education, and work experience, engage in any other kind 20 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 21 “The Social Security Regulations set out a five-step sequential process for determining 22 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 23 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 24 Ninth Circuit has provided the following description of the sequential evaluation analysis: 25 26 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 27 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 28 so, the ALJ proceeds to step three and considers whether the impairment or 1 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 2 not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing her past relevant work. If so, the claimant is not disabled. If not, the 3 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 4 claimant is not disabled. If not, the claimant is disabled. 5 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) (providing 6 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 7 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 8 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 9 “The claimant carries the initial burden of proving a disability in steps one through four of 10 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 11 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to 12 the Commissioner in step five to show that the claimant can perform other substantial gainful work.” 13 Id. (citing Swenson, 876 F.2d at 687). 14 B. Scope of Review 15 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 16 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 17 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is 18 ‘more than a mere scintilla,’” and means only “such relevant evidence as a reasonable mind might 19 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) 20 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). See also Ford v. Saul, 950 F.3d 21 1141, 1154 (9th Cir. 2020). 22 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 23 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 24 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 25 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when 26 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 27 F.3d at 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may 28 1 not substitute its judgment for that of the Commissioner.” (citations omitted)). 2 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 3 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 4 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 5 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 6 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 7 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 8 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 9 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 10 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 11 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 12 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 13 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 14 IV. DISCUSSION 15 Plaintiff contends there is no substantial evidence to support the ALJ’s RFC assessment. 16 (Doc. 18 at 8–11; Doc. 22 at 2–4.) She points out that “there was substantial evidence of record in 17 2017 . . . comprising 171 pages of medical records[] that were not reviewed by any examining 18 source or . . . by a proper reviewing medical source before[] a function-by-function RFC analysis 19 was formulated.” (Doc. 20 at 7. See also Doc. 26 at 2.) Instead, according to Plaintiff, the ALJ 20 relied on their lay interpretation of the medical evidence. (See Doc. 20 at 8; Doc. 26 at 3.) Plaintiff 21 contends that because the ALJ “fail[ed] to obtain an opinion from an examining physician source 22 or submit the updated, post-surgery records to an ‘acceptable’ medical professional for 23 interpretation,” substantial evidence does not support the ALJ’s RFC determination. (See Doc. 20 24 at 8; Doc. 26 at 3.) Plaintiff further asserts that the ALJ erred in discounting her subjective 25 symptom testimony. (See Doc. 20 at 9–13; Doc. 26 at 4–7.) 26 The Commissioner responds that the ALJ’s RFC assessment was based on substantial 27 evidence and should be affirmed. (Doc. 23 at 5–8.) The Commissioner further contends that the 28 ALJ properly evaluated Plaintiff’s subjective symptom statements. (Id. at 8–10.) 1 The Court addresses the parties’ contentions below, and finds that reversal is not warranted. 2 A. Plaintiff’s Challenge to the Record Does Not Constitute Reversible Error 3 1. The ALJ Had No Duty to Develop the Record 4 By claiming that the ALJ erred in failing to obtain an examining physician or other medical 5 expert to review Plaintiff’s 2017 records, Plaintiff is in effect criticizing the ALJ’s failure to 6 develop the record. (See Doc. 20 at 8.) “An ALJ’s duty to develop the record further is triggered 7 only when there is ambiguous evidence or when the record is inadequate to allow for proper 8 evaluation of the evidence.” See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). 9 Plaintiff has not demonstrated that the record was ambiguous or inadequate to allow for proper 10 evaluation. The ALJ summarized medical evidence spanning 2011 through 2017 and found with 11 the support of that record that Plaintiff had not established she was disabled. (AR 30, 33–36.) The 12 record contained what appears to be Plaintiff’s complete treatment records that supported the ALJ’s 13 findings and did not present an ambiguity or inadequacy. Notably, Plaintiff failed to submit any 14 medical opinions from a treating or examining physician that support her claimed functional 15 limitations. Because it is Plaintiff’s burden to present evidence of disability, the mere absence of 16 a report from a treating or examining physician does not give rise to a duty to develop the record; 17 instead, that duty is triggered only where there is an inadequacy or ambiguity. Bayliss v. Barnhart, 18 427 F.3d 1211, 1217 (9th Cir. 2005); Alvarez v. Astrue, No. 1:08-cv-01205-SMS, 2009 WL 19 2500492, at *10 (E.D. Cal. Aug. 14, 2009) (finding absence of report from treating physician did 20 not give rise to a duty to develop the record where record contained opinions of the state agency 21 physicians and plaintiff’s complete treatment records); see also 42 U.S.C. § 423(d)(5)(A) (“An 22 individual shall not be considered to be under a disability unless [they] furnish[] such medical and 23 other evidence of the existence thereof as the Commissioner of Social Security may require.”); 20 24 C.F.R. § 416.920(a) (“[Y]ou have to prove to us that you are . . . disabled . . . .”). 25 Contrary to Plaintiff’s assertion, an updated opinion is not required simply because 26 additional medical evidence is received after the state agency physicians had already reviewed 27 Plaintiff’s records. See de Hoog v. Comm’r of Soc. Sec., No. 2:13–CV–0235–KJN, 2014 WL 28 3687499, at *7 (E.D. Cal. July 23, 2014). Such an occurrence is quite common. See id. (explaining 1 that “[i]n virtually every case further evidence is received after the state agency physicians render 2 their assessments—sometimes additional evidence and records are even received after the ALJ 3 hearing. For that very reason, the ALJ is tasked with considering the evidence in the record as a 4 whole.”). 5 Plaintiff cites cases in which a duty to develop the record arose (see Doc. 20 at 8, 9), but 6 these were limited to situations where the subsequent “objective evidence suggest[ed] a condition 7 that could have a material impact on the disability decision.” Molina v. Berryhill, No. 2:17-CV- 8 01991 CKD, 2018 WL 6421287, at *3 (E.D. Cal. Dec. 6, 2018). See also Escudero v. Comm’r of 9 Soc. Sec., No. 1:18-CV-01136-EPG, 2019 WL 4917634, at *2 (E.D. Cal. Oct. 4, 2019) (finding the 10 ALJ improperly failed to develop the record where descriptions of some of the medical evidence 11 post-dating the opining physicians’ opinions was not “self-evident” and instead “appear[ed] to be 12 very medical in nature and not susceptible to a lay understanding.”); Goodman v. Berryhill, No. 13 2:17-CV-01228 CKD, 2019 WL 79016, at *5 (E.D. Cal. Jan. 2, 2019) (subsequent medical 14 evidence giving rise to duty to develop the record documented “significant medical events relevant 15 to plaintiff’s physical condition.”). 16 Here, in contrast, the evidence Plaintiff directs the Court to review does not present any 17 “new” findings, is relatively unremarkable, is followed by improvement, and/or, to some extent, is 18 based on subjective complaints like those discredited by the ALJ. For example, Plaintiff cites to 19 records from February and July 2017 showing she underwent trigger point injections for treatment 20 of “newly diagnosed myofascial pain.” (Doc. 20 at 7 (citing AR 933–43, 936).) Myofascial pain, 21 however, was not a new diagnosis: Plaintiff was assessed with myofascial pain in December 2016 22 (see AR 1075), and such diagnosis was considered by the state agency physician in rendering their 23 opinion on reconsideration (see AR 146, 160). The fact that Plaintiff underwent trigger point 24 injections in 2017 was also not novel, as such injections were recommended (yet refused) in 25 December 2016. (See AR 1075.) Notably, Plaintiff reported being “overall 100% better” in the 26 areas injected following treatment. (AR 929) 27 Plaintiff also cites to results from physical examination in February 2017, which showed 28 limited range of motion in Plaintiff’s trunk due to stiffness, diminished sensation in her left lower 1 extremity, and moderate tenderness to the SI joints on the right side. (See Doc. 20 at 7 (citing AR 2 920).) However, as the ALJ discussed (see AR 33), that next month Plaintiff exhibited only mild 3 tenderness over the SI joints, 5/5 motor strength to manual testing, and negative straight leg raising 4 signs. (AR 923.) She was noted to be doing “reasonably well,” and the surgeon stated that “[a]t 5 this time, I think it is very reasonable for her to return to work with no specific restrictions.” (AR 6 924.) 7 Plaintiff highlights her self-reported pain at 8–9 level out of 10 in May 2017 (see Doc. 20 8 at 7 (citing AR 925)), but, as the ALJ noted (see AR 33), subsequent, objective medical evidence 9 shows the lumbar spine, SI joints, sciatic notches, and gluteal region were all nontender to 10 palpation. (AR 931.) As noted previously indicated, in July 2017 Plaintiff also subsequently 11 reported “overall 100% better” following injection treatment. (AR 929.) 12 Finally, Plaintiff points to a physical examination results in July 2017 showing diminished 13 sensation below her knee and foot and decreased motor strength in her left lower extremity and 14 hamstring (see Doc. 20 at 7–8), yet these same results also show otherwise normal sensation and 15 motor strength; negative straight leg tests; and, as noted above, a lack of tenderness in the lumbar 16 spine, SI joints, sciatic notches, and gluteal region. (AR 931.) 17 In sum, none of these records establish the existence of any new condition not assessed by 18 the ALJ, or show a worsening of Plaintiff’s existing conditions.6 Plaintiff does not demonstrate 19 otherwise. The Court therefore finds that the ALJ was not obligated to further develop the record. 20 2. The ALJ Did Not Err in Formulating Plaintiff’s RFC 21 An RFC “is the most [one] can still do despite [their] limitations” and it is “based on all the 22 relevant evidence in [one’s] case record,” rather than a single medical opinion or piece of evidence. 23 20 C.F.R. § 416.945(a)(1); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that 24 it is the responsibility of the ALJ, not the claimant’s physician, to determine residual functional 25 capacity.”). Further, an ALJ’s RFC determination need not precisely reflect any particular 26 physician’s assessment. See, e.g., Turner v. Comm’r Soc. Sec. Admin., 613 F.3d 1217, 1222-23 27 (9th Cir. 2010) (the ALJ properly incorporated physician’s observations in the RFC determination 28 1 while, at the same time, rejecting the implication that plaintiff was unable to “perform simple, 2 repetitive tasks in an environment without public contact or background activity”). 3 The only expert medical opinions regarding Plaintiff’s RFC at issue are those of the state 4 agency physicians Drs. Reddy and Bonner.7 (See Doc. 20 at 7; Doc. 26 at 2.) The ALJ considered 5 the opinions of these consultants and assigned them “great weight.” (AR 34.) In assessing the 6 opinions of Drs. Bullard and Fast, the ALJ found their opinions to be consistent with the existing 7 medical evidence, including that which post-dated their opinion, and the product of their 8 specialization and experience in evaluating impairments and claimants in the context of 9 determining disability. (AR 34.) 10 Plaintiff’s primary criticism of the ALJ’s RFC assessment is her claim that because the state 11 agency physicians on whose opinions the ALJ relied did not consider subsequent records, the RFC 12 was the result of the ALJ improperly imposing their own lay interpretation of the medical evidence. 13 (See Doc. 20 at 8–9; Doc. 26 at 2–4.) This argument is unavailing. 14 The nature of the ALJ’s responsibility is to interpret the evidence of record, including 15 medical evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Such a responsibility 16 does not result in the ALJ committing legal error when they assess an RFC that is consistent with 17 the record. See Mills v. Comm’r of Soc. Sec., No. 2:13-CV-0899-KJN, 2014 WL 4195012, at *4 18 (E.D. Cal. Aug. 22, 2014) (“[I]t is the ALJ’s responsibility to formulate an RFC that is based on 19 the record as a whole, and thus the RFC need not exactly match the opinion or findings of any 20 particular medical source.”) (citing Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989)). 21 As set forth above, the ALJ considered not only the opinions of the state agency physicians, 22 but also evaluated the objective medical evidence post-dating their opinions, including that which 23 Plaintiff cites in her briefing. (See AR 33–34, 36; Doc. 20 at 7–8.) The ALJ then interpreted that 24 evidence, as they are charged to do, and formulated Plaintiff’s RFC.8 See, e.g., Mills, 2014 WL 25 4195012, at *4 (finding argument that the ALJ was improperly attempting to “play doctor” lacked 26 7 The ALJ assigned little weight to the opinions of Diego Allende, D.O., and Allen S. Fonseca, M.D., finding that 27 they predated Plaintiff’s alleged onset date and were inconsistent with the record, respectively. (AR 35.) Plaintiff does not challenge the ALJ’s treatment of these opinions. 28 8 The ALJ’s RFC assessment is also based on consideration of the subjective complaint testimony, which, as set forth 1 merit where the ALJ “carefully analyzed the various medical opinions, treatment records, and 2 plaintiff’s own testimony in formulating an RFC.”). For example, although the ALJ assigned “great 3 weight” to Drs. Reddy’s and Bonner’s opinions that Plaintiff could perform unlimited balancing, 4 kneeling, and crouching, those opinions were not dispositive and the ALJ ultimately formulated an 5 RFC that limited those activities to “frequently.” These restrictions, in addition to the others, 6 accounted for “the combination of [Plaintiff’s] impairments and symptoms, such as pain, decreased 7 sensation, and weakness.” (AR 36.) 8 Plaintiff does not specify what additional functional limitations in the relatively benign 9 records she directs the Court to review establish that were not accounted for in the ALJ’s RFC 10 assessment. Nor does she otherwise show any inconsistency between this evidence and her RFC. 11 Instead, it appears that Plaintiff is advocating for an alternative interpretation of the evidence she 12 cites in her briefing. The Court, however, will not second guess the ALJ’s reasonable 13 interpretation, even if such evidence could give rise to inferences more favorable to Plaintiff. See 14 Molina, 674 F.3d at 1110. 15 In sum, the Court does not find error in the ALJ’s reliance on the opinions of the state 16 agency physicians and further finds that substantial evidence supports the ALJ’s conclusions 17 regarding the impact of Plaintiff’s impairments on the RFC. Plaintiff may disagree with the RFC, 18 but the Court must uphold the ALJ’s determination because it is a rational interpretation of the 19 evidence. See Ford, 950 F.3d at 1159 (“Our review of an ALJ’s fact-finding for substantial 20 evidence is deferential”); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 21 3. Even if the ALJ Erred, Any Error is Harmless 22 In addition to bearing the burden of showing she is disabled, Plaintiff also has the burden of 23 establishing that any error resulted in actual harm. See Ludwig v. Astrue, 681 F.3d 1047, 1054–55 24 (9th Cir. 2012). An “ALJ’s error is harmless where it is inconsequential to the ultimate 25 nondisability determination.” See Molina, 674 F.3d at 1115 (quotation marks and citations 26 omitted)); Garcia v. Comm of Soc. Sec., 768 F.3d 925, 932 & n.10 (9th Cir. 2014) (harmless error 27 analysis applies where ALJ errs by not discharging duty to develop record). 28 Here, even assuming the RFC was unsupported by substantial evidence because the ALJ 1 failed to further develop the record as to certain findings made after the state agency review, 2 Plaintiff fails to show prejudice. See Meanel, 172 F.3d at 1113; Molina, 674 F.3d at 1115. 3 Specifically, Plaintiff fails to explain how any of the relatively unremarkable evidence post-dating 4 the state agency physicians’ opinions, described above, would materially affect the ALJ’s disability 5 determination. In fact, according to the VE, the only restrictions that would preclude all work for 6 Plaintiff would be (1) a limitation to being off task 15% of the workday; and (2) and a likelihood 7 of missing three days in an average month due to pain. (AR 84, 88.) Neither of these restrictions 8 is provided for or otherwise supported by the evidence cited by Plaintiff. Thus, any error does not 9 warrant reversal. 10 B. The ALJ Properly Found Plaintiff Less Than Fully Credible 11 1. Legal Standard 12 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 13 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 14 the ALJ must determine whether the claimant has presented objective medical evidence of an 15 underlying impairment that could reasonably be expected to produce the pain or other symptoms 16 alleged. Id. The claimant is not required to show that [their] impairment “could reasonably be 17 expected to cause the severity of the symptom [they have] alleged; [they] need only show that it 18 could reasonably have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 19 504 F.3d 1028, 1036 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence 20 of malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 21 if they give “specific, clear and convincing reasons” for the rejection.9 Id. As the Ninth Circuit 22 has explained: 23 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s 24 reputation for lying, prior inconsistent statements concerning the symptoms, and 25 other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course 26 of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 27 28 1 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 2 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may 3 consider include a claimant’s work record and testimony from physicians and third parties 4 concerning the nature, severity, and effect of the symptoms of which they complain. Light v. Social 5 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 6 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 7 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 8 2014) (quoting Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 9 General findings are not enough to satisfy this standard; the ALJ “‘must identify what testimony is 10 not credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 11 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 12 2. Analysis 13 As noted above, the ALJ found Plaintiff’s impairments “could reasonably be expected to 14 cause the alleged symptoms,” yet rejected Plaintiff’s subjective testimony as “not entirely 15 consistent with the medical evidence and other evidence in the record . . . .” (AR 33.) Since the 16 ALJ found Plaintiff’s “medically determinable impairments could reasonably be expected to cause 17 the alleged symptoms,” the only remaining issue is whether the ALJ provided “specific, clear and 18 convincing reasons” for Plaintiff’s adverse credibility finding. See Vasquez, 572 F.3d at 591. 19 Here, the ALJ found that evidence in the medical record “suggests that [Plaintiff] retained 20 functional abilities” and summarized the medical evidence. (AR 33–34.) Had that been the end of 21 the discussion, Plaintiff’s argument that the ALJ erred by “failing to provide clear and convincing 22 reasons to reject symptomology evidence” (Doc. 20 at 9) might have merit. However, the ALJ 23 continued the analysis, explaining that Plaintiff’s “reported activities also suggest that she retained 24 functional abilities,” specifically her testimony that she “worked [three] hours a day and five days 25 a week assisting and accompanying a person and performing duties for the person such as cleaning 26 the house and making food.” (AR 34.) 27 It is appropriate for an ALJ to consider a claimant’s activities that undermine claims of 28 severe limitations in making the credibility determination. See Fair v. Bowen, 885 F.2d 597, 603 1 (9th Cir. 1989); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); Rollins, 2 261 F.3d at 857; see also Thomas, 278 F.3d at 958–59 (an ALJ may support a determination that 3 the claimant was not entirely credible by identifying inconsistencies between the claimant’s 4 complaints and the claimant’s activities.). It is well-established that a claimant need not “vegetate 5 in a dark room” to be deemed eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 6 1987). However, if a claimant can spend a substantial part of their day engaged in pursuits 7 involving the performance of physical functions that are transferable to a work setting, a specific 8 finding as to this fact may be sufficient to discredit an allegation of disability. Fair, 885 F.2d at 9 603. “Even where [Plaintiff’s] activities suggest some difficulty functioning, they may be grounds 10 for discrediting the claimant’s testimony to the extent that they contradict claims of a totally 11 debilitating impairment.” Molina, 674 F.3d at 1113. 12 Plaintiff alleges an inability to work due to pain in her back, hands, and right knee. (AR 13 74–78.) According to Plaintiff, she cannot lift a gallon of milk, cannot reach with her right arm, 14 and can sit only for up to an hour. (AR 78–79.) Despite these alleged severe limitations, the record 15 shows that Plaintiff worked three hours a day, five days a week, for five months, assisting and 16 accompanying an individual (“keep[ing] him company and talk[ing] to him”), as well as doing 17 some housecleaning and preparation of food. (AR 72-73, 79. See also AR 312–17.) Despite 18 Plaintiff’s testimony that she experienced pain while working and had to rest when she got home 19 (see AR 79–80), there is no evidence in the record that Plaintiff ceased this part-time employment 20 due to her impairments and limitations. Instead, the record reflects Plaintiff’s employment ended 21 when the person for whom she was caring passed away (AR 73). See Lombardi v. Comm’r of Soc. 22 Sec., No. 2:15-cv-0478-KJN, 2016 WL 1375565, at *4 (E.D. Cal. Apr. 7, 2016) (affirming adverse 23 credibility finding where the plaintiff “did not fail to find or sustain work because of her 24 impairments”). Moreover, Plaintiff then sought another position with the same employer.10 (AR 25 73.) An ALJ may consider a plaintiff’s continued search for employment after the alleged onset 26 date in weighing the plaintiff’s credibility. See Bray, 554 F.3d at 1227 (finding ALJ presented 27
28 10 This is consistent with other evidence in the record demonstrating Plaintiff’s willingness to resume work during the 1 specific basis for discounting the plaintiff’s testimony where “she recently worked as a personal 2 caregiver for two years, and has sought out other employment since then”). 3 On balance, the ALJ’s Plaintiff’s ability to work after her alleged disability onset date was 4 reasonably considered by the ALJ to be inconsistent with her alleged inability to work due to pain 5 and other symptoms. See Presley-Carrillo v. Berryhill, 692 Fed. App’x 941, 945 (9th Cir. 2017) 6 (“the ALJ reasonably found, [the plaintiff’s] typical daily activities were inconsistent with her 7 symptom testimony—particularly given that she already worked part-time . . . .”); Denham v. 8 Astrue, 494 F. App’x 813, 815 (9th Cir. 2012) (affirming a credibility finding that relied, in part, 9 on two years of part-time janitorial work after the alleged onset date); Archuleta v. Colvin, No. CV 10 12–04486–MAN, 2013 WL 6002096, at *9 (C.D. Cal. Nov. 8, 2013) (“[P]laintiff’s ability to work 11 after the alleged onset date [gave] rise to a reasonable inference that plaintiff’s subjective pain 12 [was] not as restrictive as she allege[d] it to be.”). The Court finds the ALJ did not err in evaluating 13 Plaintiff's subjective complaints. 14 V. CONCLUSION AND ORDER 15 After consideration of Plaintiff’s and the Commissioner’s briefs and a thorough review of 16 the record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 17 therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 18 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, and against Plaintiff. 19 IT IS SO ORDERED. 20
21 Dated: May 20, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 22
23 24 25 26 27 28