(SS) Johnson v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 LEON JOHNSON, 10 Case No. 1:19-cv-01584-SKO Plaintiff, 11 v. ORDER ON PLAINTIFF’S SOCIAL 12 SECURITY COMPLAINT ANDREW SAUL, 13 Commissioner of Social Security, 14 Defendant. (Doc. 1) 15 16 _____________________________________/ 17 18 19 I. INTRODUCTION 20 On November 6, 2019, Plaintiff Leon Johnson (“Plaintiff”) filed a complaint under 42 U.S.C. 21 §§ 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of Social 22 Security (the “Commissioner” or “Defendant”) denying his application for Supplemental Security 23 Income (SSI) under Title XVI of the Social Security Act (the “Act”). (Doc. 1.) The matter is 24 currently before the Court on the parties’ briefs, which were submitted, without oral argument, to 25 the Honorable Sheila K. Oberto, United States Magistrate Judge.1 26 /// 27 28 1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7, 19.) 1 II. BACKGROUND 2 On January 13, 2016, Plaintiff protectively filed an application for SSI payment, alleging he 3 b ecame disabled on December 3, 2015, due to acute pulmonary embolism, degeneration of both 4 k nees, hypertension, asthma, morbid obesity, obstructive sleep apnea (“OSA”) treated with bilevel 5 p ositive airway pressure (“BiPAP”), elevated troponin, and inability “to stand or walk for long.” 6 (Administrative Record (“AR”) 45, 261, 290.) Plaintiff was born on December 29, 1970 and was 7 f orty-four years old as of the alleged onset date. (AR 285.) 8 A. Relevant Medical Evidence2 9 1. State Agency Physicians 10 On March 15, 2016, C. De la Rosa, M.D., a state agency physician, reviewed the record and 11 assessed Plaintiff’s residual functional capacity (“RFC”).3 (AR 120–31.) Dr. De la Rosa opined 12 that Plaintiff could: (1) lift and/or carry twenty pounds occasionally and ten pounds frequently; (2) 13 stand and/or walk for four hours in an eight-hour workday; (3) sit for about six hours in an eight- 14 hour workday; (4) push and/or pull “unlimited, other than shown, for lift and/or carry”; (5) 15 occasionally climb ramps/stairs, balance, stoop, kneel, crawl, and crouch; and (6) never climb 16 ladders, ropes, and scaffolds. (AR 127–28.) Dr. De la Rosa also opined that Plaintiff should 17 “[a]void even moderate exposure” to hazards (e.g., machinery, heights, etc.). (AR 128.) Upon 18 reconsideration on August 24, 2016, another state agency physician, L. Bobba, M.D., reviewed the 19 record and affirmed Dr. De la Rosa’s findings.4 (AR 133–44.) 20 /// 21 /// 22 23 2 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the contested issues. 24 3 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 eight hours a day, for five days a week, or an equivalent work schedule. 25 TITLES 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 26 that result from an 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 27 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’ ” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 28 4 The only difference between Dr. De la Rosa’s and Dr. Bobba’s opinions is that Dr. Bobba opined to the additional 1 2. Fresno County Jail 2 On November 1, 2017, Plaintiff presented for care at the medical clinic at the Fresno County 3 J ail, complaining of bilateral shoulder pain that had been “constant for 5 months.” (AR 497.) 4 T reatment notes indicate that Plaintiff had a limited range of motion. (AR 497.) On examination, 5 w hen Plaintiff was instructed by the medical provider to lift his arms to shoulder level, Plaintiff 6 stated that he was unable to do so because of the pain. (AR 498.) Plaintiff was able to put his arms 7 b ehind him, but could not touch his shoulders. (AR 498.) 8 3. California Institution for Men 9 On July 10, 2018, Plaintiff presented to the medical clinic at the California Institution for 10 Men for knee osteoarthritis. (AR 569.) Treatment notes from that visit included the following 11 notations: “Canes Permanent Standard, Do Not Dispense, Patient Already Has” and “Walkers 12 Permanent Standard, Same Day[.]” (AR 569, 573, emphasis in the original.) The examining 13 medical provider also noted that Plaintiff’s “request for a walker . . . is not appropriate at present 14 time[,] patient should continue walking as appropriate with a walking cane that he has at this time 15 he is accommodated with.” (AR 581.) 16 B. Administrative Proceedings 17 The Commissioner initially denied Plaintiff’s application for SSI payment on April 14, 18 2016, and again on reconsideration on August 26, 2016. (AR 146–50, 153–58.) Consequently, 19 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 161–63.) At the 20 hearing on September 12, 2018, Plaintiff appeared via teleconference with counsel and testified 21 before an ALJ as to his alleged disabling conditions.5 (AR 38–78.) 22 1. Plaintiff’s Testimony 23 Plaintiff testified he is unable to walk without the use of a cane. (AR 57–58.) According 24 to Plaintiff, he has to elevate both of his legs above his waist every night to alleviate the swelling 25 in his legs. (AR 60–61.) 26 2. Vocational Expert 27 The ALJ asked the Vocational Expert (“VE”) to consider a person of Plaintiff’s age, 28 1 e ducation, and work experience. (AR 69.) The VE was also to assume this person could: lift and 2 c arry twenty pounds occasionally and ten pounds frequently; stand and walk for four hours in an 3 e ight-hour workday; sit for an unlimited period; never climb ladders, ropes, or scaffolding; 4 o ccasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; and had to avoid concentrated 5 e xposure to pulmonary irritants and hazards, temperature extremes, dampness, and vibration. (AR 6 68–69.) In response to whether such a person could perform any work in the national economy, 7 t he VE testified that such a person could perform light, unskilled jobs with an SVP of 2, such as 8 agricultural produce sorter, DOT 529.687-186, ampoule filler (pharmaceuticals), DOT 559.685- 9 018, retail marker, DOT 209.587-034, and pari-mutuel-ticket seller, DOT 211.467-022. (AR 69– 10 71.) 11 The ALJ asked the VE, in a second hypothetical, to consider a person with the same 12 limitations as those in the first hypothetical, with the exception that the person could perform only 13 sedentary work. (AR 72.) The VE testified that, in addition to pari-mutuel-ticket seller and ampoule 14 filler, the jobs of semiconductor dies loader, DOT 726.687-030, printer circuit taper, DOT 017.684- 15 010, and table worker, DOT 739.687-182, all sedentary jobs with an SVP of 2, would be available 16 to that person. (AR 72–73.) 17 In a third hypothetical, the ALJ asked the VE to consider a person with the same limitations 18 as those in the second hypothetical, but with an additional limitation of needing a cane for walking 19 more than ten yards per hour. (AR 73.) The VE testified that the jobs identified in the second 20 hypothetical would still be available to such a person. (AR 73.) 21 C. The ALJ’s Decision 22 In a decision dated December 4, 2018, the ALJ found that Plaintiff was not disabled, as 23 defined by the Act. (AR 17–33.) The ALJ conducted the five-step disability analysis set forth in 24 20 C.F.R. § 416.920. (AR 23–32.) The ALJ determined that Plaintiff had not engaged in substantial 25 gainful activity since January 13, 2016, the application date (step one). (AR 23.) At step two, the 26 ALJ found Plaintiff’s following impairments to be severe: degenerative joint disease of the bilateral 27 knees; “exogenous obesity versus morbid obesity”; OSA treated with a BiPAP machines; bronchitis; 28 possible internal derangement of the bilateral shoulders; acute coronary syndrome; non-occlusive 1 d eep venous thrombosis; asthma; pulmonary hypertension; right heel bone spur; tachycardia; diffuse 2 s pondylosis of the thoracic spine; and a history of blood clots, pulmonary embolism, polysubstance 3 a buse, depression, possible myocardial infarction, and marijuana dependence. (AR 23.) Plaintiff 4 d id not have an impairment or combination of impairments that met or medically equaled one of the 5 l isted impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 6 24.) 7 The ALJ then assessed Plaintiff’s RFC and applied the RFC assessment at steps four and 8 five. See 20 C.F.R. § 416.920(a)(4) (“Before we go from step three to step four, we assess your 9 residual functional capacity . . . . We use this residual functional capacity assessment at both step 10 four and step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff 11 had the RFC: 12 to lift and/or carry 20 pounds occasionally and 10 pounds frequently. He could sit without limitation in an 8-hour workday with normal breaks. He could stand and/or 13 walk 4 hours in an 8-hour workday with normal breaks. This capacity most closely approximates a wide range of light work as defined in 20 CFR [§] 416.967(b): 14 [Plaintiff] could occasionally climb ramps or stairs, but could not climb ladders, ropes, or scaffolds. He could occasionally balance, stoop, kneel, crouch, or crawl. 15 He must avoid concentrated exposure to temperate extremes, wet or humid environments, vibration, pulmonary irritants, and hazards. He must wear bilateral 16 knee braces while at work. 17 (AR 25.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 18 to cause the alleged symptoms[,]” he rejected Plaintiff’s subjective testimony as “not entirely 19 consistent with the medical evidence and other evidence in the record.” (AR 26.) 20 The ALJ determined that Plaintiff had no past relevant work (step four). (AR 23.) The ALJ 21 ultimately concluded that Plaintiff was not disabled because Plaintiff could perform a significant 22 number of other jobs in the national economy, specifically agricultural produce sorter, ampoule filler 23 (pharmaceuticals), retail marker, pari-mutuel ticket seller, semiconductor dies loader, printed circuit 24 layout taper, and table worker (step five). (AR 31–32.) 25 On December 31, 2018, Plaintiff sought review of the ALJ’s decision before the Appeals 26 Council, which denied review on September 6, 2019. (AR 6–11, 12–14.) Therefore, the ALJ’s 27 decision became the final decision of the Commissioner. 20 C.F.R. § 416.1481. 28 /// 1 III. LEGAL STANDARD 2 A. Applicable Law 3 An individual is considered “disabled” for purposes of disability benefits if he or she is unable 4 “ to engage in any substantial gainful activity by reason of any medically determinable physical or 5 m ental impairment which can be expected to result in death or which has lasted or can be expected 6 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 7 “ [a]n individual shall be determined to be under a disability only if his physical or mental impairment 8 or impairments are of such severity that he is not only unable to do his previous work but cannot, 9 considering his age, education, and work experience, engage in any other kind of substantial gainful 10 work which exists in the national economy.” Id. § 423(d)(2)(A). 11 “The Social Security Regulations set out a five-step sequential process for determining 12 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 13 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 14 Ninth Circuit has provided the following description of the sequential evaluation analysis: 15 In step one, the ALJ determines whether a claimant is currently engaged in substantial 16 gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe impairment or 17 combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or combination of 18 impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ 19 proceeds to step four and assesses whether the claimant is capable of performing her 20 past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other 21 substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 22 23 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) (providing 24 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 25 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” 26 Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 27 “The claimant carries the initial burden of proving a disability in steps one through four of the 28 analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 1 “ However, if a claimant establishes an inability to continue her past work, the burden shifts to the 2 C ommissioner in step five to show that the claimant can perform other substantial gainful work.” Id. 3 ( citing Swenson, 876 F.2d at 687). 4 B. Scope of Review 5 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 6 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 7 a s a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is defined as being 8 more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari, 253 F.3d 1152, 9 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way, substantial evidence is 10 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. 11 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 12 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 13 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 14 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 15 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the 16 evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 F.3d at 17 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may not 18 substitute its judgment for that of the Commissioner.” (citations omitted)). 19 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 20 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 21 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 22 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 23 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 24 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 25 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 26 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 27 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti, 28 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). “[T]he 1 b urden of showing that an error is harmful normally falls upon the party attacking the agency’s 2 d etermination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 3 IV. DISCUSSION 4 Plaintiff claims that substantial evidence does not support the ALJ’s RFC assessment of 5 P laintiff’s physical limitations, as “no medical professional assessed the impact of all Plaintiff’s 6 d iagnoses and symptoms on his functionality.” (Doc. 16 at 7–8.) Furthermore, Plaintiff contends 7 that the assessments of his limitations by the State agency non-examining medical consultants were 8 “outdated” because they did not account for subsequent medical records. (Doc. 16 at 6–8; Doc. 25 9 at 2–5.) Accordingly, Plaintiff submits that the ALJ should have developed the record further and 10 “obtain[ed] an assessment of Plaintiff’s physical and mental limitations from a treating or examining 11 source,” rather than relying on “his lay opinion” of the subsequent medical evidence “to attempt to 12 accommodate for Plaintiff’s progressive and additional impairments.” (Doc. 16 at 6–7; Doc. 21 at 13 2–4.) 14 The Commissioner counters that no duty to develop the record arose because the ALJ 15 considered all the evidence in the record and there was no ambiguity in the evidence. (Doc. 17 at 16 8–10.) The Commissioner also maintains that the ALJ’s RFC assessment was based on substantial 17 evidence supported from inferences reasonably drawn from the record and should thus be affirmed. 18 (Doc. 17 at 10–12.) 19 The Court addresses the parties’ contentions below and finds that reversal is not warranted. 20 A. The ALJ Had No Duty to Develop the Record 21 “An ALJ’s duty to develop the record further is triggered only when there is ambiguous 22 evidence or when the record is inadequate to allow for proper evaluation of the evidence.” See 23 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Here, Plaintiff has not demonstrated 24 that the record was ambiguous or inadequate to allow for proper evaluation. The ALJ summarized 25 record evidence spanning from 2015 through 2018 and found with the support of that record that 26 Plaintiff had not established he is disabled. (AR 26–30.) The record contains what appears to be 27 Plaintiff’s complete treatment records that supported the ALJ’s findings and did not present an 28 1 a mbiguity or inadequacy. Notably, Plaintiff did not submit any medical opinions from a treating or 2 e xamining physician as to his ability to work or his functional limitations. Because Plaintiff carries 3 t he burden to present evidence of disability, the mere absence of a report from a treating or 4 e xamining physician does not give rise to a duty to develop the record—that duty is triggered only 5 w here there is an inadequacy or ambiguity in the evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 6 1217 (9th Cir. 2005); Alvarez v. Astrue, No. 1:08–cv–01205–SMS, 2009 WL 2500492, at *10 (E.D. 7 C al. Aug. 14, 2009) (finding absence of report from treating physician did not give rise to a duty to 8 develop the record where record contained opinions of the state agency physicians and the 9 claimant’s complete treatment records); see also 42 U.S.C. § 423(d)(5)(A) (“An individual shall not 10 be considered to be under a disability unless he furnishes such medical and other evidence of the 11 existence thereof as the Commissioner of Social Security may require.”); 20 C.F.R. § 416.920(a) 12 (“[Y]ou have to prove to us that you are . . . disabled”). Indeed, when the ALJ asked Plaintiff’s 13 attorney at the hearing whether the record was complete, he responded, “It is.” (AR 42.) See 14 Randolph v. Saul, 2:18–cv–00555–CLB, 2020 WL 504667, at *8 (D. Nev. Jan. 31, 2020) (finding 15 the ALJ was not obligated to further develop the record where counsel stated at the hearing that the 16 record was complete); see also Findley v. Saul, No. 1:18–cv–00341–BAM, 2019 WL 4072364, at 17 *6 (E.D. Cal. Aug. 29, 2019) (same). 18 Contrary to Plaintiff’s assertion, an updated opinion is not required simply because 19 additional medical evidence is received after the State agency physicians had already reviewed 20 Plaintiff’s records. See de Hoog v. Comm’r of Soc. Sec., No. 2:13–CV–0235–KJN, 2014 WL 21 3687499, at *7 (E.D. Cal. July 23, 2014). Such an occurrence is quite common. See id. (explaining 22 that “[i]n virtually every case further evidence is received after the [S]tate agency physicians render 23 their assessments—sometimes additional evidence and records are even received after the ALJ 24 hearing. For that very reason, the ALJ is tasked with considering the evidence in the record as a 25 whole.”). Plaintiff cites cases in which a duty to develop the record arose (see Doc. 16 at 7, 8; Doc. 26 21 at 4), but these were limited to situations where the subsequent “objective evidence suggest[ed] 27 a condition that could have a material impact on the disability decision,” Molina v. Berryhill, No. 28 2:17–cv–01991 CKD, 2018 WL 6421287, at *3 (E.D. Cal. Dec. 6, 2018), or where the records 1 c onsisted of “raw medical evidence,” Shipp v. Colvin, No. CV 13-9468 JC, 2014 WL 4829035, at 2 * 7 (C.D. Cal. Sept. 26, 2014). See Escudero v. Comm’r of Soc. Sec., No. 1:18–cv–01136–EPG, 3 2 019 WL 4917634, at *2 (E.D. Cal. Oct. 4, 2019) (finding the ALJ improperly failed to develop the 4 r ecord where descriptions of some of the medical evidence post-dating the opining physicians’ 5 o pinions was not “self-evident” and instead “appear[ed] to be very medical in nature and not 6 susceptible to a lay understanding.”); Goodman v. Berryhill, No. 2:17–cv–01228 CKD, 2019 WL 7 7 9016, at *5 (E.D. Cal. Jan. 2, 2019) (subsequent medical evidence giving rise to duty to develop 8 the record documented “significant medical events relevant to plaintiff’s physical condition.”). 9 Here, the Plaintiff directs the Court’s attention to three pages of evidence from two different 10 medical records relating to his alleged need for a cane and a walker (AR 569, 573) and his shoulder 11 impairments (AR 497). (Doc. 16 at 8.) These records, compared to those in the cases discussed 12 above, are relatively straightforward, and, to some extent, based on subjective complaints similar to 13 those discredited by the ALJ6. The first record cited by Plaintiff—treatment notes from Plaintiff’s 14 visit for knee osteoarthritis in July 2018—reflects that he has been using a cane for walking, which 15 the ALJ acknowledged in his opinion (see AR 30), but does not establish that Plaintiff needs a 16 walker, as he claims. (AR 569, 573.) Indeed, in the same set of treatment notes, the examining 17 medical provider noted that Plaintiff’s “request for a walker . . . is not appropriate at present time[,] 18 [Plaintiff] should continue walking as appropriate with a walking cane[.]” (AR 581.) The second 19 record cited by Plaintiff is a treatment note from November 2017 showing that Plaintiff was able to 20 put his arms behind him, but when he was instructed to lift his arms to shoulder level, he stated he 21 was unable to do so due to pain; Plaintiff was prescribed Tylenol for the shoulder pain7. (AR 497, 22 498.) Neither of these records establishes the existence of any new condition not assessed by the 23 ALJ or a worsening condition that could have a material impact on the ultimate disability decision. 24 The Court therefore finds that the ALJ was not obligated to further develop the record. 25 6 The ALJ found that Plaintiff’s subjective complaints were “not entirely consistent with the medical evidence and other 26 evidence in the record . . . .” (AR 26.) Plaintiff does not challenge the sufficiency of the evidence supporting the ALJ’s adverse credibility finding or the adequacy of the ALJ’s reasons given to explain this finding. The Court therefore 27 considers the ALJ’s unchallenged credibility finding to be binding. See, e.g., Stanley v. Astrue, No. 1:09–cv–1743 SKO, 2010 WL 4942818, at *6 (E.D. Cal. Nov. 30, 2010). 28 7 See Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with 1 B. The ALJ Did Not Err in Formulating Plaintiff’s RFC 2 An RFC “is the most [one] can still do despite [his or her] limitations,” and it is “based on 3 a ll the relevant evidence in [one’s] case record,” rather than a single medical opinion or piece of 4 e vidence. 20 C.F.R. § 416.945(a)(1); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It 5 i s clear that it is the responsibility of the ALJ, not the claimant’s physician, to determine residual 6 functional capacity.”). Further, an ALJ’s RFC determination need not precisely reflect any 7 p articular medical provider’s assessment. See Turner v. Comm’r Soc. Sec. Admin., 613 F.3d 1217, 8 1222–23 (9th Cir. 2010) (finding that the ALJ properly incorporated physician’s observations in the 9 RFC determination while, at the same time, rejecting the implication that the plaintiff was unable to 10 “perform simple, repetitive tasks in an environment without public contact or background activity”). 11 According to the record, the only expert medical opinions regarding Plaintiff’s RFC are 12 those of the State agency physicians, Drs. De la Rosa and Bobba. (AR 29–30.) The ALJ considered 13 their opinions and assigned them “great weight,” but also found that additional limitations were 14 warranted “based on updated medical evidence and consideration of the record as a whole.” (AR 15 30.) Plaintiff’s alleges that, because the State agency physicians on whose opinions the ALJ relied 16 did not consider subsequent records, the RFC was the result of the ALJ improperly imposing his 17 own lay interpretation of the medical evidence and thus “legally deficient.” (Doc. 16 at 8.) This 18 argument is unavailing. 19 The nature of the ALJ’s responsibility is to interpret the evidence of record, including 20 medical evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Such a responsibility 21 does not result in the ALJ committing legal error when he assesses an RFC that is consistent with 22 the record. See Mills v. Comm’r of Soc. Sec., No. 2:13–cv–0899-KJN, 2014 WL 4195012, at *4 23 (E.D. Cal. Aug. 22, 2014) (“[I]t is the ALJ’s responsibility to formulate an RFC that is based on the 24 record as a whole, and thus the RFC need not exactly match the opinion or findings of any particular 25 medical source.”) (citing Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989)). 26 Here, the ALJ considered not only the opinions of the state agency physicians but also 27 evaluated the objective medical evidence post-dating their opinions, including the evidence 28 identified by Plaintiff pertaining to his shoulder impairment. (See AR 27–29; Doc. 16 at 7 (citing 1 A R 569 and 573).) The ALJ then interpreted that evidence, as he is charged to do, and formulated 2 P laintiff’s RFC.8 See, e.g., Mills, 2014 WL 4195012, at *4 (finding argument that the ALJ was 3 i mproperly attempting to “play doctor” lacked merit where the ALJ “carefully analyzed the various 4 m edical opinions, treatment records, and the plaintiff’s own testimony in formulating an RFC.”). 5 F or example, although the ALJ assigned “great weight” to Drs. De la Rosa’s and Bobba’s opinions 6 that Plaintiff was limited to an RFC that “most closely approximates a wide range of light work,” 7 t hose opinions were not dispositive, and the ALJ ultimately formulated an RFC that included 8 additional limitations. These limitations accounted for Plaintiff’s musculoskeletal impairments, 9 including the ALJ’s finding that Plaintiff had “possible internal derangement of the bilateral 10 shoulders,” by restricting him from exposure to temperature extremes, wet or humid environments, 11 and vibrations, in addition to requiring that he wear bilateral knee braces while working. (See AR 12 23, 25, 30.) 13 Plaintiff cursorily asserts that the ALJ failed to include limitations in his RFC based on his 14 alleged need for a cane and walker, shoulder impairments, bilateral pitting edema, and need to 15 elevate his legs above his heart. (Doc. 16 at 7.) The limitations based on the impairments raised by 16 Plaintiff, however, are unsupported by the record.9 As discussed above, the medical evidence does 17 not support that Plaintiff needs a walker. Plaintiff’s contention that the ALJ “wholly ignored” his 18 shoulder impairments (see Doc. 16 at 7) is belied by the ALJ’s finding that he has “possible internal 19 derangement of the bilateral shoulders” and the ALJ’s inclusion of restrictions accounting for 20 Plaintiff’s musculoskeletal impairments, beyond those opined by the State agency physicians (AR 21 23, 30). Plaintiff’s asserted need to elevate his legs appears to be supported by his own testimony 22 only (AR 60–61), which the ALJ discredited (see AR 26) and Plaintiff does not challenge; thus the 23 ALJ was not required to include such a limitation in the RFC.10 24 In sum, the Court does not find error in the ALJ’s reliance on the opinions of the State agency 25 8 The ALJ’s RFC assessment is also based on consideration of Plaintiff’s subjective complaints, which, as noted above, 26 the ALJ discredited (see AR 26) and Plaintiff does not challenge. 9 Indeed, Plaintiff failed to include in his argument any accompanying citations to medical evidence in the record in 27 support of his claim as to his bilateral pitting edema and need to elevate his legs. (See Doc. 16 at 8.) 10 In any event, as the Commissioner notes (Doc. 17 at 11), Plaintiff testified that he elevates his legs at night (AR 61), 28 so the ALJ’s failure to include a limitation accommodating that need would be harmless, Molina, 674 F.3d at 1115, as 1 p hysicians and further finds that substantial evidence supports the ALJ’s conclusions regarding the 2 i mpact of Plaintiff’s impairments on the RFC. Plaintiff may disagree with the RFC, but the Court 3 m ust nevertheless uphold the ALJ’s determination because it is a rational interpretation of the 4 e vidence. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 5 C. Even if the ALJ Erred, Any Error is Harmless 6 In addition to bearing the burden of showing he is disabled, Plaintiff also has the burden of 7 e stablishing that any error resulted in actual harm. See Ludwig v. Astrue, 681 F.3d 1047, 1054–55 8 (9th Cir. 2012). An “ALJ’s error is harmless where it is inconsequential to the ultimate nondisability 9 determination.” See Molina, 674 F.3d at 1115 (quotation marks and citations omitted)); Garcia v. 10 Comm of Soc. Sec., 768 F.3d 925, 932 & n.10 (9th Cir. 2014) (harmless error analysis applies where 11 the ALJ errs by not discharging duty to develop record). 12 Here, even assuming the RFC was unsupported by substantial evidence because the ALJ 13 failed to further develop the record as to certain findings made after the State agency review, 14 Plaintiff fails to show prejudice. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999); Molina, 15 674 F.3d at 1115. Specifically, Plaintiff fails to explain how either of the two records post-dating 16 the State agency physicians’ opinions that he identified, described above, would materially affect 17 the ALJ’s disability determination. Plaintiff’s also fails to show any inconsistency between the 18 evidence he identifies and his RFC, nor does he specifically explain what additional limitations 19 should have been included in the ALJ’s RFC determination. 20 With regard to Plaintiff’s alleged need for a cane (see Doc. 16 at 8), the Court notes the ALJ 21 found that Plaintiff’s knee problems “are addressed conservatively with braces, a cane, and pain 22 medication” (AR 30), but the ALJ did not include use of a cane in formulating Plaintiff’s RFC, only 23 the use of knee braces (AR 23). Even assuming the ALJ should have included the use of cane in 24 Plaintiff’s RFC, the Court finds any error to be harmless because such a limitation would not have 25 changed the ultimate non-disability determination. The VE testified that even if Plaintiff required 26 “a cane when walking more than 10 yards per hour,” the sedentary jobs of semiconductor dies 27 loader, printed circuit layout taper, and table worker would still be available. (AR 73.) 28 Plaintiff contends in his reply brief that the VE’s testimony conflicted with the DOT because 1 “ it is unclear” how the requirements of “frequent” or “constant” reaching, handling, and fingering 2 f or the identified jobs “could be completed while holding a cane.” (Doc. 21 at 4–5.) The Court 3 d isagrees. The DOT does not expressly require bilateral reaching, handling, and fingering for the 4 s edentary jobs of semiconductor dies loader, DOT 726.687-030, printer circuit layout taper, DOT 5 0 17.684-010, and table worker, DOT 739.687-182, and Plaintiff needs only one hand to hold a cane. 6 See Trujillo v. Colvin, No. CV 15–5468–KES, 2016 WL 3453033, at *2 (C.D. Cal. June 20, 2016) 7 ( “Courts have routinely held that jobs requiring reaching, handling or fingering do not necessarily 8 involve the use of both hands.”) (collecting cases); Pierre v. Colvin, No. CV 15–2944–DTB, 2016 9 WL 492430, at *2 (C.D. Cal. Feb. 5, 2016) (finding no conflict where VE testified that a person 10 with the claimant’s limitations, requiring the use of a cane for ambulation, could perform the 11 identified job, which required constant reaching, handling, and fingering); McConnell v. Astrue, 12 No. EDCV 08-667 JC, 2010 WL 1946728, at *7 (C.D. Cal. May 10, 2010) (holding that jobs 13 requiring reaching and handling did not exceed the claimant’s limitation to work with one hand 14 when there was no bilateral requirement in the DOT for those positions. The VE’s testimony thus 15 did not conflict with the DOT. 16 V. CONCLUSION AND ORDER 17 After consideration of Plaintiff’s and the Commissioner’s briefs and a thorough review of 18 the record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 19 therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 20 Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff Leon Johnson. 21 IT IS SO ORDERED. 22 Sheila K. Oberto 23 Dated: January 8, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28