Harder v. Commissioner of Social Security Administration ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael Wayne Harder, No. CV-20-01365-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s appeal of the denial of his application for 16 social security disability benefits. Plaintiff alleges that he has been disabled since January 17 15, 2016. (Doc. 15-3 at 14). 18 Plaintiff claims on appeal that the Administrative Law Judge (“ALJ”) who 19 conducted his hearing erred in two respects: 1) the ALJ failed to give adequate reasons for 20 not fully crediting Plaintiff’s symptom testimony (Doc. 18 at 12); and 2) the ALJ “provided 21 insufficient rationale to justify relying on the state agency reviewers’ opinions to find 22 [Plaintiff] not disabled” (Doc. 18 at 21). 23 I. Five-Step Evaluation Process 24 A. Governing Law 25 To qualify for social security disability benefits, a claimant must show that the 26 claimant “is under a disability.” 42 U.S.C. § 423(a)(1)(E). A claimant is disabled if the 27 claimant suffers from a medically determinable physical or mental impairment that 28 prevents the claimant from engaging “in any substantial gainful activity.” Id. § 423(d)(1)– 1 (2). The SSA has created a five-step process for an ALJ to determine whether the claimant 2 is disabled. See 20 C.F.R. § 404.1520(a)(1). Each step is potentially dispositive. See id. § 3 404.1520(a)(4). 4 At the first step, the ALJ determines whether the claimant is “doing substantial 5 gainful activity.” Id. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. Substantial 6 gainful activity is work activity that is both “substantial,” involving “significant physical 7 or mental activities,” and “gainful,” done “for pay or profit.” Id. § 404.1572(a)–(b). 8 At the second step, the ALJ considers the medical severity of the claimant’s 9 impairments. Id. § 404.1520(a)(4)(ii). If the claimant does not have “a severe medically 10 determinable physical or mental impairment,” the claimant is not disabled. Id. A “severe 11 impairment” is one which “significantly limits [the claimant’s] physical or mental ability 12 to do basic work activities.” Id. § 404.1520(c). Basic work activities are “the abilities and 13 aptitudes necessary to do most jobs.” Id. § 404.1522(b). 14 At the third step, the ALJ determines whether the claimant’s impairment or 15 combination of impairments “meets or equals” an impairment listed in Appendix 1 to 16 Subpart P of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is disabled. 17 Id. If not, before proceeding to step four, the ALJ must assess the claimant’s “residual 18 functional capacity” (RFC). Id. § 404.1520(a)(4). The RFC represents the most a claimant 19 “can still do despite [the claimant’s] limitations.” Id. § 404.1545(a)(1). In assessing the 20 claimant’s RFC, the ALJ will consider the claimant’s “impairment(s), and any related 21 symptoms, such as pain, [that] may cause physical and mental limitations that affect what 22 [the claimant] can do in a work setting.” Id. 23 At the fourth step, the ALJ uses the RFC to determine whether the claimant can still 24 perform the claimant’s “past relevant work.” Id. § 404.1520(a)(4)(iv). The ALJ compares 25 the claimant’s RFC with the physical and mental demands of the claimant’s past relevant 26 work. Id. § 404.1520(f). If the claimant can still perform past relevant work, the ALJ will 27 find that the claimant is not disabled. Id. § 404.1520(a)(4)(iv). 28 At the fifth and final step, the ALJ determines whether—considering the claimant’s 1 RFC, age, education, and work experience—the claimant “can make an adjustment to other 2 work.” Id. § 404.1520(a)(4)(v). If the ALJ finds that the claimant can make an adjustment 3 to other work, then the claimant is not disabled. Id. If the ALJ finds that the claimant cannot 4 make an adjustment to other work, then the claimant is disabled. Id. 5 B. ALJ’s Findings Following Plaintiff’s Hearing 6 At step one, the ALJ determined that Plaintiff had not done any gainful work since 7 his March 2, 2017 application date. (Doc. 15-3 at 16). 8 At step two, the ALJ determined that Plaintiff has the following severe impairments: 9 lumbar spondylosis, myofascial pain syndrome, obesity, major depressive disorder, 10 posttraumatic stress disorder (PTSD), and schizophrenia. (Doc. 15-3 at 16). The ALJ 11 determined that Plaintiff’s other diagnosed and alleged conditions were only minimally 12 corroborated by clinical evidence and did not individually or in combination significantly 13 impact Plaintiff’s ability to perform basic work-related activities. (Doc. 15-3). 14 At step three, the ALJ determined that Plaintiff did not have an impairment or 15 combination of impairments that met or medically equaled the severity of one of the listed 16 impairments. (Doc. 15-3 at 17). 17 At step four, the ALJ found that Plaintiff could not perform his past relevant work. 18 (Doc. 15-3 at 21). 19 At step five, after determining Plaintiff’s residual functional capacity and 20 considering the testimony of the vocational expert, the ALJ determined Plaintiff could 21 perform other jobs that exist in the national economy. (Doc. 15-3 at 22 (listing several 22 jobs)). 23 II. Legal Standard on Appeal 24 This Court may not overturn the ALJ’s denial of disability benefits absent legal error 25 or a lack of substantial evidence. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). 26 “‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance; it 27 is such relevant evidence as a reasonable person might accept as adequate to support a 28 conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). On review, the 1 Court “must consider the entire record as a whole, weighing both the evidence that supports 2 and the evidence that detracts from the [ALJ’s] conclusion, and may not affirm simply by 3 isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 4 1009 (9th Cir. 2014)). The ALJ, not this Court, draws inferences, resolves conflicts in 5 medical testimony, and determines credibility. See Andrews v. Shalala, 53 F.3d 1035, 1039 6 (9th Cir. 1995); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). Thus, the Court 7 must affirm even when “the evidence admits of more than one rational interpretation.” 8 Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The Court “review[s] only the reasons 9 provided by the ALJ in the disability determination and may not affirm the ALJ on a ground 10 upon which he did not rely.” Garrison, 759 F.3d at 1010. 11 III. Discussion 12 A. Plaintiff’s Symptom Testimony 13 Plaintiff’s first claim of error on appeal is that the ALJ committed harmful error by 14 rejecting Plaintiff’s symptom testimony without giving specific, clear and convincing 15 reasons supported by substantial evidence in the record as a whole for rejecting such 16 testimony. (Doc. 18 at 12). 17 1. Law Regarding Plaintiff’s Symptom Testimony 18 The ALJ is responsible for determining credibility, resolving conflicts in medical 19 testimony, and resolving ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 20 1998). In assessing the credibility of a claimant’s statements regarding subjective pain or 21 the intensity of symptoms, the ALJ must engage in a two-step analysis. Molina v. Astrue, 22 674 F.3d 1104, 1112 (9th Cir. 2012). First, as a threshold matter, “the ALJ must determine 23 whether the claimant has presented objective medical evidence of an underlying 24 impairment ‘which could reasonably be expected to produce the pain or other symptoms 25 alleged.’” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 26 (9th Cir. 1991)). Second, if the claimant meets the first test, then “the ALJ ‘may not 27 discredit a claimant’s testimony of pain and deny disability benefits solely because the 28 degree of pain alleged by the claimant is not supported by objective medical evidence.’” 1 Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (quoting Bunnell, 947 F.2d at 346–47). 2 Rather, “unless an ALJ makes a finding of malingering based on affirmative evidence 3 thereof,” the ALJ may only find the claimant not credible by making specific findings 4 supported by the record that provide clear and convincing reasons to explain his credibility 5 evaluation. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citing Smolen 6 v. Chater, 80 F.3d 1273, 1283–84 (9th Cir. 1996)). 7 In rendering a credibility determination, the ALJ may consider several factors, 8 including: “(1) ordinary techniques of credibility evaluation, such as the claimant’s 9 reputation for lying, prior inconsistent statements concerning the symptoms, and other 10 testimony by the claimant that appears less than candid; (2) unexplained or inadequately 11 explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the 12 claimant’s daily activities.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 13 (quoting Smolen, 80 F.3d at 1284). If the ALJ relies on these factors and his reliance is 14 supported by substantial evidence, the Court “may not engage in second-guessing.” Id. 15 (quoting Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)). 16 2. Analysis 17 Overall, Plaintiff argues on appeal that the ALJ failed to provide sufficient 18 specificity in his findings to not fully credit Plaintiff’s symptom testimony. (Doc. 18 at 19 14). The Court will address each of Plaintiff’s claimed defects in the ALJ’s opinion in 20 turn. 21 a. Nexus Between Plaintiff’s Symptoms and ALJ’s Findings 22 First, the ALJ found that Plaintiff’s symptom testimony was not entirely consistent 23 with either the medical evidence of record or the other evidence of record. (Doc. 15-3 at 24 19). Plaintiff argues this finding is not tied to a specific symptom of Plaintiff’s that the 25 ALJ is rejecting and therefore is too general to be specific reason to reject Plaintiff’s 26 symptom testimony. (Doc. 18 at 13-14). However, the ALJ provided multiple specific 27 reasons for finding that Plaintiff’s testimony was not consistent with the medical evidence 28 or other evidence of record. 1 Turning first to the ALJ’s finding that Plaintiff’s symptom testimony was not 2 consistent Plaintiff’s testimony about his daily activities and his other abilities, the ALJ 3 found: 4 The claimant alleged that he has difficulty remembering generally, understanding what is said to him, following instructions, completing tasks, 5 and taking medications without reminders. However, the claimant also stated he could perform simple maintenance and prepare meals. (Exhibit 6 3E). In addition the record shows that the claimant was able to provide information about his health, describe [his] prior work history, respond to 7 questions from medical providers, and there is [not] any mention of any issues with the claimant’s short- or long-term memory. (E.g. Exhibits 1F, 8 3F, 4F, 13F, and 20F). 9 (Doc. 15-3 at 17). This paragraph is an example of the ALJ pointing to specific record 10 evidence of where Plaintiff’s claimed symptoms were inconsistent with other record 11 evidence. As follows, the ALJ made numerous other specific findings tying why the ALJ 12 rejected Plaintiff’s symptom testimony because it was inconsistent with other record 13 evidence. 14 By way of further example, the ALJ found: 15 Here, the claimant alleged that [he] has difficulty getting along with others 16 and dealing appropriately with authority. However, according to his statements, the claimant also has the ability to live with others. (Exhibit 3E). 17 The claimant reported auditory and visual hallucinations. However, [in] many records, [including] most recent records [he] denies any hallucinations. 18 (Exhibits 2F, p. 21; 5F, p. 11; 13F, p. 16; and 16F, p. 8). Finally, the medical evidence shows that the claimant was described as pleasant and cooperative. 19 (E.g., Exhibits 2F, p. 19; 7F, p. 8; 10F, p. 43; and 18F, p. 2). 20 (Doc. 15-3 at 17). This is another example of the ALJ pointing to and citing specific record 21 evidence that was inconsistent with Plaintiff’s symptom testimony. 22 By way of further example, the ALJ found: 23 The claimant has contented that he has limitations in concentrating generally, following instructions, and completing tasks. On the other hand, claimant 24 said that he is also able to prepare meals. (Exhibit 3F). Additionally, the record fails to show any mention of distractibility. 25 (Doc. 15-3 at 17-18). Again, these findings are another example of the ALJ pointing to 26 and citing specific record evidence that was inconsistent with Plaintiff’s symptom 27 testimony. 28 By way of further example, the ALJ found: 1 The claimant asserted that he has difficulties handling change, dressing, bathing, and managing his mood. That said, the claimant also stated that he 2 is able to care for children with some assistance. (Exhibit 3E). Meanwhile, the objective evidence in the record showed the claimant to have appropriate 3 grooming and hygiene. (E.g. Exhibits 2F, p. 19.; 5F, p. 28; 10F, p. 30; and 15F, p. 5). … Here, the claimant has been observed to be able to manage[] 4 himself in [an] appropriate manner. 5 (Doc. 15-3 at 18). Again, these findings are a further example of the ALJ specifically 6 indicating where the Plaintiff’s testimony and the other record evidence were inconsistent. 7 Plaintiff’s argument on appeal that the ALJ failed to make such findings belied by the plain 8 language of the decision in this case. 9 Next, the ALJ also found that Plaintiff’s symptom testimony regarding the severity 10 of his symptoms was inconsistent with the medical record. Plaintiff presented the severity 11 of his symptoms to the ALJ in a function report in which Plaintiff claimed that he had 12 “difficulty lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, 13 talking, climbing stairs, remembering, completing tasks, concentrating, understanding, 14 following instructions, and getting along with others.” (Doc. 15-3 at 19 (citing Doc. 15-7 15 at 14-22).). 16 Addressing first Plaintiff’s claimed physical limitations, the ALJ found that the 17 severity of the symptoms reported by Plaintiff were inconsistent with the medical record 18 because: 19 X-ray of the claimant’s lumbar spine from November 16, 2015, showed no fracture, normal alignment, marginal osteophytes with mild disc space 20 narrowing the T12-L1 levels. However, physical examinations showed that his cervical and lumbar spine had normal appearance, normal strength and 21 stability, and normal range of motion. … MRI[] shows age appropriate and generally unremarkable. Treatment notes… after an attempted hanging 22 note trauma to the neck with pain, but no acute cardiopulmonary disease, no evidence of fract[ure] or spondylolisthesis, and objective imagining was 23 otherwise unremarkable. (Exhibit 2F). …. Physical examinations … noted that his cervical and lumbar appearance was normal, range of motion of neck 24 and upper limbs were normal, that he ambulates normally without an assistive device, range of motion of lower back and lower limbs were 25 normal, but that he had some lumbar paraspinal tenderness. (Exhibit 2F). Treatment [notes] on April 15, 2019, for follow up to trigger point injections, 26 the claimant reported 80% relief from lumbar medical branch block. Again, physical examinations noted generally normal finding in sensation, strength, 27 and range of motion. (Exhibit 14F). 28 (Doc. 15-3 at 19 (emphasis added)). The ALJ then specified that he was incorporating 1 these objective findings into his determination of Plaintiff’s residual functional capacity. 2 (Doc. 15-3 at 20). As the above block quote reveals, the ALJ noted 15 specific separate 3 instances whether the medical record was inconsistent with the severity of Plaintiff’s 4 claimed limitations. Thus, Plaintiff’s claim of error on appeal that the ALJ did not specify 5 where his medical record was “normal” such that it was inconsistent with Plaintiff’s 6 claimed severe limitations is again belied by the ALJ’s opinion itself. 7 Next addressing Plaintiff’s claimed psychological symptoms, the ALJ found that 8 the severity of the symptoms reported by Plaintiff were inconsistent with the medical 9 record. Specifically, after noting that Plaintiff had a history of depressive disorder, PTSD, 10 and mixed personality traits, the ALJ found that: 11 Evaluations … noted that the claimants mood was much improved, [and that the claimant] has motivation, normal concentration and attention span, 12 positive outlook toward life, support from others, improved mood, good eye contact, cooperative, linear thought process, denies suicidal and homicidal 13 ideations, denies hallucinations or paranoia, fair insight and judgment, intact memory, and fair concentration and attention []. (Exhibit 4F). … [C]laimant 14 attempted suicide…. The claimant was diagnosed with PTSD, persistent depressive disorder, dysthymia disorder, [and] marijuana use. However, 15 therapy notes, indicated that the claimant denied endorsing suicide, citing great improvement as a result of the medication. Conversely, [later] therapy 16 notes … noted that that the claimant’s medications [were] not working. (Exhibit 5F). [Later] examinations noted that the claimant was dressed 17 appropriately, and had fair hygiene, good eye contact, appropriate mood and affect, intact memory, and normal attention and concentration. (Exhibits 7F 18 and 9F). … Notes [also] indicated several no shows to appointments and a need for medication, but the claimant did not reschedule. (Exhibits 8F and 19 9F). [Later] the claimant was voluntarily admitted with thoughts of suicidal ideations. Mental states examinations at this time were generally normal. 20 (Exhibit 13F). [Later] progress notes indicated that the claimant had good progress with no significant changes in mood or behavior. Again, mental 21 status examinations were normal. (Exhibit 16F). This evidence … [shows] the claimant can follow simple instructions for unskilled work with 22 occasional contact with coworkers or public. 23 (Doc. 15-3 at 20). 24 This detailed recounting of Plaintiff’s history shows that while Plaintiff suffered 25 certain psychological symptoms, his reports to his doctors and his doctors observations 26 were inconsistent with Plaintiff’s symptoms as reported to the ALJ in Plaintiff’s function 27 report: namely, that Plaintiff claimed he had difficulty remembering, completing tasks, 28 concentrating, understanding, following instructions, and getting along with others. See 1 (Doc. 15-3 at 19 (citing Doc. 15-7 at 14-22).). 2 Accordingly, this Court rejects Plaintiff’s claim of error on appeal based on 3 Plaintiff’s argument that the ALJ’s conclusions were not adequately supported by 4 specifically tying Plaintiff’s symptom testimony to the contradictory evidence of record. 5 The decision of the ALJ to reject the severity of Plaintiff’s symptom testimony is affirmed 6 because the ALJ gave clear and convincing reasons, supported by substantial evidence of 7 record, to not fully credit such testimony. 8 b. Appellate Review 9 Similarly, this Court rejects Plaintiff’s argument on appeal that the ALJ’s decision 10 did not contain sufficient specificity to allow appellate review. See (Doc. 18 at 14-15). 11 The decision as a whole, and the specific portions of the decision quoted herein, adequately 12 explain the ALJ’s reasoning and conclusions such that this Court can review the basis for 13 those conclusions. 14 c. Consideration of Medical Evidence 15 Plaintiff also argues that the ALJ committed legal error by finding that the severity 16 of Plaintiff’s self-reported symptoms was not consistent with the medical evidence of 17 record. (Doc. 18 at 14). Plaintiff argues that Plaintiff only needs to produce evidence of a 18 medically determinable impairment that could reasonably be expected to cause his 19 symptoms, and that the ALJ cannot require him to produce evidence of the severity of his 20 symptoms. (Id.). While Plaintiff is correct that he is not required to produce evidence of 21 the severity of his symptoms, see Garrison, 759 F.3d at 1014, Plaintiff mischaracterizes 22 the ALJ’s consideration of the evidence. 23 The ALJ never stated that the ALJ rejected Plaintiff’s symptoms because Plaintiff 24 failed to produce evidence of the severity of his symptoms. Instead, the ALJ failed to give 25 full credit to Plaintiff’s self-reported symptoms because those self-reported symptoms were 26 inconsistent with the medical evidence of record. It is not error for the ALJ to consider the 27 medical evidence in evaluating Plaintiff’s self-reported symptoms. See Stubbs-Danielson 28 v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (finding that the objective medical evidence 1 supported the ALJ’s credibility assessment of plaintiff’s symptom testimony); Rollins v. 2 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (holding that medical evidence is “a relevant 3 factor in determining the severity of the claimant’s pain and its disabling effects”); Burch 4 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence cannot 5 form the sole basis for discounting pain testimony, it is a factor that the [ALJ] can consider 6 in his credibility analysis.”); Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 7 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for rejecting 8 the claimant’s subjective testimony.”). Accordingly, the Court finds that the ALJ did not 9 commit legal error on this basis. 10 d. Improvement with Treatment 11 Plaintiff next argues that it was error for the ALJ to consider Plaintiff’s improvement 12 with medication. (Doc. 18 at 15). However, it is acceptable for the ALJ to consider the 13 impact of medication on a person’s medical condition. See Warre v. Comm’r of the Soc. 14 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled 15 effectively with medication are not disabling for purposes of determining eligibility for SSI 16 benefits.”). Thus, the Court finds no error on this basis. 17 e. Interpretation of Medical Records 18 Next Plaintiff disagrees with the ALJ’s interpretation of certain evidence in the 19 medical record. (Doc. 18 at 16). However, it is appropriate for the ALJ to interpret medical 20 testimony including resolving conflicts in the medical record and resolving ambiguities, 21 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); and this Court cannot substitute 22 its interpretation for that of the ALJ, see Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 23 1992). Thus, Plaintiff’s claim of error on appeal seeking to have this Court re-interpret the 24 medical evidence is rejected. 25 f. Missed Appointments 26 Plaintiff argues that if the ALJ relied on Plaintiff’s missed appointments as a basis 27 to not fully credit his symptom testimony, such reliance was error. (Doc. 18 at 16). The 28 Court finds no evidence in the ALJ’s opinion that the ALJ relied on the missed 1 appointments in this way. The ALJ merely noted them as part of the treatment history. 2 (Doc. 15-3 at 20). 3 g. Reliance of Medical Records 4 Next Plaintiff argues it was “nonsensical” for the ALJ to rely on the doctor’s 5 treatment notes indicating Plaintiff had a “normal” mental state while Plaintiff was 6 receiving psychiatric treatment. (Doc. 18 at 19). The ALJ correctly summarized the 7 doctors’ findings. Thus, Plaintiff is actually taking issue with the doctor’s observations 8 and diagnosis. However, this Court cannot use its own judgment to decide that the doctor 9 who contemporaneously evaluated Plaintiff during his treatment was wrong in his 10 observations. Neros v. Comm. of Soc. Sec., No. CV 11-1971-PHX-JAT, 2013 WL 524519, 11 at *4 (D. Ariz. Feb. 11, 2013) (“…this Court cannot substitute its ‘opinion’ for the opinion 12 of a doctor based on the Court’s review of the record.”). 13 On this record, the Court finds that the ALJ correctly summarizing, and then relying 14 on, the medical doctors’ reports was not error. As discussed more fully in section III.B. 15 below, the Court does not find error in the ALJ relying on the medical evidence in the 16 record just because it contradicts Plaintiff’s self-reported symptoms at the time of the 17 hearing. 18 h. “Cherry-Picking” 19 Finally, Plaintiff argues it was error for the ALJ to “cherry-pick” the evidence to 20 support the agencies’ decision. (Doc. 18 at 19-20). After Plaintiff makes this legal 21 argument, Plaintiff offers no facts that Plaintiff claims the ALJ disregarded. Thus, Plaintiff 22 has not shown that the ALJ engaged in “cherry-picking” and the decision will not be 23 reversed on this basis. 24 3. Conclusion Regarding Plaintiff’s Symptom Testimony 25 The Court finds that none of Plaintiff’s claimed errors are a basis for reversal in this 26 case. The ALJ gave clear and convincing reasons, supported by substantial evidence of 27 record, to not fully credit Plaintiff’s symptom testimony. Additionally, the ALJ did not rely 28 on any improper reasons to discredit Plaintiff’s symptom testimony. Accordingly, the 1 Court will not reverse the decision of the ALJ on this basis. 2 B. Physicians’ Opinions 3 1. Weight Given Reviewing Physicians’ Opinions 4 Plaintiff next argues that the ALJ did not give adequate reasons for giving great 5 weight to the opinions of doctors who reviewed Plaintiff’s records. (Doc. 18 at 21). 6 Plaintiff states: “The issue is whether those [reviewing] opinions are sufficient to support 7 an unfavorable decision in the absence of any other medical opinion evidence or articulated 8 basis for favoring those opinions….” (Id.). 9 In this case, there were no treating physicians. Thus, to the extent the social security 10 regulations give greater weight to the opinions of treating physicians, those regulations and 11 the cases interpreting them are inapplicable in this case. Nonetheless, without citation to 12 any law, Plaintiff argues that “…the ALJ provided insufficient rationale to justify relying 13 on the state agency reviewers’ opinion to find [Plaintiff] not disabled.” (Doc. 18 at 21). 14 Plaintiff repeats this argument in his Reply, again arguing without any citation, “The 15 Commissioner points out that no examining or treating physician provided an opinion of 16 [Plaintiff’s] mental work capacities, …, but that is not a legitimate reason to allow state 17 agency reviewer’s opinions to determine the outcome of a claimant’s case.” (Doc. 21 at 18 10). The Court has located no precedent requiring the ALJ to give “sufficient rational” to 19 explain why he relied on the only medical opinions in the record. 20 As indicated above, in cases where there are multiple medical opinions, the weight 21 that a particular opinion is given is based on who is providing that opinion. Ghanim v. 22 Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014). “Generally, the opinion of a treating physician 23 must be given more weight than the opinion of an examining physician, and the opinion of 24 an examining physician must be afforded more weight than the opinion of a reviewing 25 physician.” Id.; see 20 C.F.R. 404.1527(c)(1)–(2). 26 As stated above, in this case, the opinions of the reviewing physicians are the only 27 opinions of record. As Ghanim and the C.F.R. indicate, reviewing physicians’ opinions 28 are entitled to some weight. Thus, the Court concludes it was not error for the ALJ to rely 1 on these opinions. Further, it was not error for the ALJ to not give “sufficient rational” for 2 why he gave weight to the only medical opinions of record. The Court finds no legal 3 support for Plaintiff’s claim of error on this point. See Winters v. Barnhart, No. C 02- 4 5171SI, 2003 WL 22384784, at *6 (N.D. Cal. Oct. 15, 2003) (“The ALJ is not allowed to 5 use his own medical judgment in lieu of that of a medical expert.”). 6 2. Record Available 7 Next, Plaintiff argues it was error for the ALJ to give any weight to the opinions of 8 the reviewing physicians because those physicians “failed to base their opinions on a 9 complete record.” (Doc. 18 at 22). However, as the Commissioner notes in his response, 10 the law does not require that every record be available to a reviewing physician. (Doc. 20 11 at 22). “[T]here is always some time lapse between a consultant’s report and the ALJ 12 hearing and decision, and the Social Security regulations impose no limit on such a gap in 13 time. At the time they issued their opinions, the non-examining experts had considered all 14 the evidence before them, satisfying the requirements set forth in in 20 C.F.R. § 15 404.1527(c)(3).” Owen v. Saul, 808 Fed.Appx. 421, 423 (9th Cir. 2020); see also Jennings 16 v. Saul, 804 Fed.Appx. 458, 462 (9th Cir. 2020) (same); Garner v. Saul, 805 Fed.Appx.455, 17 458 (9th Cir. 2020) (same). 18 Thus, although the reviewing physicians did not have every medical record, the 19 Court finds it was not error for the ALJ to rely on these opinions in conjunction with all 20 other evidence of record. See (Doc. 15-3 at 20 wherein the ALJ summarized all medical 21 evidence, including the evidence Plaintiff states was not available to the reviewing 22 physicians.). 23 3. Additional Opinions 24 Finally, Plaintiff argues it was error for the ALJ to not order either a psychological 25 medical examiner or a consultative examination. (Doc. 18 at 23). The Commissioner 26 responds and notes that the ALJ may order a consultative examination when there is an 27 inconsistency in the evidence or the evidence of record was inadequate to support a 28 decision. (Id. citing 20 C.F.R. § 404.1519a(b)). The Commission summarizes the law as follows: 2 [T]he duty to develop the record arises only if the record is inadequate or ambiguous. See Ford, 950 F.3d at 1156; Mayes v. Massanari, 276 F.3d at 3 459-60, (9th Cir. 2001) (‘An ALJ’s duty to develop the record further is triggered only when there is ambiguous evidence or when the record is 4 ina equate to allow for proper evaluation of the evidence), citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); see also Agadzhanyan v. 5 Astrue, 357 Fed.Appx. 148; 150 (9th Cir. 2009) (unpublished) (ALJ was not required to order additional psychological testing or evaluation “because he 6 did not find any piece of evidence to be ambiguous or difficult to interpret’), 7 citing Tonapetyan, 242 F.3d at 1150. (Doc. 20 at 22-23). 9 The Commissioner then argues that the record was fully developed in this case and 10 included the opinions of a psychologist and psychiatrist; the Commissioner resultantly argues that the record was neither ambiguous nor inadequate. (Doc. 20 at 23). Thus, the Commissioner concludes that no additional medical examinations were necessary. (/d.). B Plaintiff does not address this issue in his Reply. 4 Plaintiff has failed to point to any particular ambiguous area of the record or any 5 inadequately developed area of the record that would require appointment of a further 6 medical expert. Additionally, the Court finds none. Thus, the ALJ did not err in failing to appoint a further medical expert. IV. Conclusion 18 19 For the foregoing reasons, 50 IT IS ORDERED that the decision of the ALJ is affirmed and the Clerk of the 54 Court shall enter judgment accordingly. Dated this 29th day of June, 2021. 23 24 / □ Lyi AC 25 James A. Teilborg 26 Senior United States District Judge 27 28 -14-