(SS) See v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAENG SEE, No. 1:21-cv-00391-ADA-BAM 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, (Doc. Nos. 24, 26, 28) 15 Defendant. 16 17 Plaintiff Paeng See seeks judicial review of a final decision of the Commissioner of Social 18 Security denying her applications for disability insurance benefits under Title II of the Social 19 Security Act and supplemental security income under Title XVI of the Social Security Act. 20 On February 24, 2023, the assigned magistrate judge issued findings and 21 recommendations recommending that plaintiff’s appeal from the administrative decision of the 22 Commissioner of Social Security be denied and the Clerk of this Court be directed to enter 23 judgment in favor of defendant Kilolo Kijakazi, Acting Commissioner of Social Security, and 24 against plaintiff Paeng See. (Doc. No. 28.) The findings and recommendations were served on 25 the parties and contained notice that any objections thereto were to be filed within fourteen (14) 26 days after service. (Id. at p. 11.) Following an extension of time, plaintiff filed objections on 27 April 10, 2022. (Doc. No. 31.) The Commissioner did not respond to the objections, and the 28 time in which to do so has passed. Fed. R. Civ. P. 72; L.R. 304. 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c), this Court has conducted a 2 de novo review of the case, including plaintiff’s objections. Having carefully reviewed the entire 3 file, the Court finds that the findings and recommendations are supported by the record and 4 proper analysis. Plaintiff does not object to the Magistrate Judge’s finding that plaintiff 5 knowingly and intelligently waived her right to counsel at the administrative hearing level. 6 Rather, plaintiff objects to the Magistrate Judge’s determination that plaintiff was not prejudiced 7 by her lack of representation at the hearing with respect to her colostomy and colostomy 8 maintenance. (See Doc. No. 31.) Specifically, plaintiff challenges the Magistrate Judge’s finding 9 that the record was not inadequate or ambiguous regarding plaintiff’s colostomy and colostomy 10 maintenance and the administrative law judge’s duty to develop the record was not triggered. (Id. 11 at p. 5.) 12 An administrative law judge (“ALJ”) has a duty to develop the record for represented and 13 unrepresented claimants, with the duty being “heightened where the claimant may be mentally ill 14 and thus unable to protect her own interests.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th 15 Cir. 2001). “An ALJ’s duty to develop the record further is triggered only when there is 16 ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 17 evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). The Magistrate Judge’s 18 determination that the evidence was not ambiguous or the record inadequate and, thus, the ALJ’s 19 duty to further develop the record regarding plaintiff’s colostomy and colostomy maintenance 20 was not triggered is supported by the record and proper analysis. As the Magistrate Judge 21 indicated, the ALJ asked plaintiff about her colostomy and colostomy maintenance at the hearing. 22 (AR 48-49, 59-60.) The ALJ also received evidence from plaintiff’s niece regarding the 23 colostomy and colostomy maintenance. (AR 53-54.) The ALJ also included the amount of time 24 spent changing the colostomy bag in a hypothetical to the vocational expert. (AR 60.) Further, 25 the ALJ considered treatment records regarding plaintiff’s colostomy and colostomy 26 management. (AR 28-29, 364, 410, 956.) 27 Accordingly, 28 1. The findings and recommendations issued on February 24, 2023 (Doc. No. 28) are 1 adopted in full; 2 2. Plaintiff's appeal from the administrative decision of the Commissioner of Social 3 Security is denied; and 4 3. The Clerk of this Court is directed to enter judgment in favor of defendant Kilolo 5 Kijakazi, Acting Commissioner of Social Security, and against plaintiff Paeng See. 6 7 g | IT ISSO ORDERED. 9 Dated: _ August 29, 2023 10 UNITED fTATES DISTRICT JUDGE

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