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

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOSEPH VASQUEZ, Case No. 1:20-cv-00502-SKO 11 Plaintiff, 12 v. ORDER ON PLAINTIFF’S SOCIAL 13 SECURITY COMPLAINT ANDREW SAUL, 14 Commissioner of Social Security, 15 Defendant. (Doc. 1) 16 17 _____________________________________/ 18 19 I. INTRODUCTION 20 21 Plaintiff Joseph Vasquez (“Plaintiff”) seeks judicial review of a final decision of the 22 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his application 23 for Supplemental Security Income (SSI) under Title XVI of the Social Security Act (the “Act”), 24 42 U.S.C. § 1383(c). (Doc. 1.) The matter is currently before the Court on the parties’ briefs, 25 which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States 26 Magistrate Judge.1 27 /// 28 1 II. BACKGROUND 2 Plaintiff protectively filed his SSI application on June 22, 2016, alleging disability as of the 3 application date due to attention deficit hyperactivity disorder (“ADHD”) and bipolar disorder. 4 (Administrative Record (“AR”) 17, 57, 58, 61, 69, 70, 74, 82, 171, 175, 209, 219.) Plaintiff was 5 born on January 18, 1997, and has an eleventh-grade education. (AR 20, 25, 38, 57, 69, 171, 176, 6 209, 219.) 7 A. Relevant Evidence of Record2 8 1. Medical Evidence 9 While in twelfth grade in 2014, Plaintiff had an individualized educational plan (IEP), 10 which was noted that he “struggle[d] with processing instructions from the teacher.” (AR 309.) 11 He also “misse[d] social cues” and was “frequently . . . off topic.” (AR 309, 322.) Plaintiff was 12 noted to “struggle[] with organization, completing class and homework, and turning work in.” 13 (AR 309, 322.) He was observed to be “easily distracted by other students” and “not socially aware 14 of going too far.” (AR 310, 323.) 15 In November 2015, following a diagnosis of ADHD and bipolar disorder, Plaintiff 16 presented for an outpatient appointment at Community Mental Health Center. He reported that his 17 moods have been “okay,” with “occasional irritability.” (AR 406.) Plaintiff denied suicidal or 18 homicidal ideas and hallucinations. (AR 406.) Upon examination, he was noted to be well- 19 groomed and cooperative, with normal motor activity, cognition, speech, orientation, thought 20 content, and affective range. (AR 406.) Plaintiff’s sensorium was alert and thought processes 21 organized, but his insight and judgment were noted to be “limited.” (AR 406.) He had an 22 “improved” response to medication. (AR 406.) He was assessed with “[d]isruptive mood 23 dysregulation disorder” and ADHD. (AR 407.) 24 In December 2015, after the presenting to the hospital following an assault, Plaintiff was 25 placed on a psychiatric hold as a result of suicidal ideation and self-destructive behavior. (AR 353– 26 64, 369–72.) He purportedly made “very superficial scratches” to both forearms with a knife. (AR 27 28 2 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 360, 371.) Plaintiff reported feeling “bad because his life is not joyful anymore.” (AR 360.) He 2 stated he was “afraid to leave the hospital because he might hurt himself again.” (AR 360.) 3 Plaintiff reported both auditory and visual hallucinations. (AR 369.) His mental status examination 4 showed normal orientation and thought process, with appropriate behavior and thought content. 5 (AR 369.) Plaintiff’s mood was euthymic, but his insight and judgment were both found to be 6 moderately impaired. (AR 369.) 7 During his hospitalization, Plaintiff was treated with medications. (AR 363.) His condition 8 “remained unstable for quite a while,” in that his suicidal ideations and bad mood persisted. (AR 9 363.) Plaintiff eventually started showing improvement after approximately two weeks in the 10 hospital, at which point he “became completely free of suicidal ideations” and his mood improved. 11 (AR 363.) He was discharged with a “final diagnosis” of “[u]nspecified depressive disorder, rule 12 out mental retardation.” (AR 363.) 13 In January 2016, Plaintiff presented for a psychiatric evaluation at the Exodus Crisis 14 Recovery Stabilization Center due to feeling depressed. (AR 373.) He denied suicidal ideation 15 and hallucinations. (AR 373, 375, 376.) Plaintiff’s mental status examination showed normal 16 orientation and thought processes, and intact memory, but poor insight and judgment. (AR 373, 17 375.) He was diagnosed with bipolar disorder and discharged with instruction to continue taking 18 his medications. (AR 376.) 19 In March 2016, Plaintiff sought counseling services from the adult mental health program 20 of the Fresno County Department of Behavior Health. (AR 614.) His history of bipolar disorder 21 and intellectual disabilities was noted. (AR 614.) It was reported that Plaintiff occasionally works 22 with his father, but has trouble making friends and establishing relationships and tends to isolate. 23 (AR 615.) Upon mental status examination, his behavior was noted as engaging and cooperative. 24 (AR 615.) Plaintiff’s speech was pressured and rapid, with an elevated mood and “fluctuating” 25 affect. (AR 615.) He had normal orientation and fair memory, judgment, and insight, with goal- 26 directed, tangential, and circumstantial thought flow. (AR 616.) 27 Plaintiff went back to the Community Mental Health Center for an outpatient visit in April 28 2016. (AR 392.) It was noted that his antidepressant medication was decreased following his last 1 visit, as Plaintiff was exhibiting mania with pressured speech. (AR 392.) He was noted to be quiet 2 and responsive. (AR 392.) He denied feelings of depression, suicidal ideation, psychotic 3 symptoms, and hallucinations. (AR 392.) Plaintiff’s mother reported that he has been “impulsive.” 4 (AR 392.) His sleep was reportedly “problematic,” but improved with medication. (AR 392.) 5 Upon examination, he was noted to be well-groomed and cooperative, but quieter and exhibiting 6 impulsive behavior. (AR 392.) Plaintiff had normal motor activity, cognition, speech, orientation, 7 thought content, and affective range. (AR 392.) Plaintiff’s sensorium was alert and thought 8 processes organized, but his insight and judgment were noted to be “limited.” (AR 392) He was 9 diagnosed with bipolar disorder with psychotic features, ADHD, and major depressive disorder. 10 (AR 392.) During a therapy session that same month, Plaintiff was observed to be “less manic” 11 and reported “hanging out with his cousin, who just had a baby, and helping her around the house 12 to some extent.” (AR 443.) 13 In May 2016, Plaintiff reported that the medication has “helped with his focusing and 14 impulsivity.” (AR 388.) He was no longer manic since the decrease in his antidepressant. (AR 15 388.) He denied depressive feelings and suicidal ideation, and exhibited less irritability. (AR 388.) 16 His mental examination results were the same as the prior month. (AR 388.) 17 Plaintiff reported that he was no longer having feelings of depression and no longer cutting 18 himself in July 2016. (AR 386.) He stated he was able to focus and no longer hears voices. (AR 19 386.) Plaintiff denied suicidal or homicidal ideas. (AR 386.) He was observed to be “less 20 interactive,” with cooperative behavior, normal cognition, speech, orientation, thought content, and 21 affective range. (AR 386.) Plaintiff’s thought processes were organized, but his mood irritable 22 and his insight and judgment limited. (AR 386.) 23 In August 2016, Plaintiff reported helping around the house and doing yard work, with no 24 feelings of depression or anxiety. (AR 384.) He again denied hearing voices. (AR 384.) Plaintiff’s 25 mental status examination was the same as the previous month. (AR 384.) At a therapy session 26 that same month, Plaintiff reported that his father was diagnosed with lung cancer. (AR 432.) He 27 was observed to be in a good mood after discussing coping mechanisms. (AR 432.) 28 At a follow up appointment in November 2016, Plaintiff reported feeling some depression 1 and anxiety due to his father’s diagnosis. (AR 382.) He claimed occasional irritability, but denied 2 self-harming behavior. (AR 382.) Plaintiff also denied suicidal or homicidal ideas, mania, and 3 hallucinations. (AR 382.) His examination showed he was well-groomed with cooperative 4 behavior, normal thought content and cognition, organized thought processes, normal affective 5 range, but limited insight and judgment and an irritable mood. (AR 382.) 6 In February 2017, Plaintiff reported at a follow up appointment that he had some difficulty 7 with his ability to focus and completion of tasks. (AR 549.) He stated his moods have been “okay” 8 with occasional feelings of depression. (AR 549.) He denied mania, self-harming behavior, 9 suicidal ideations, and hallucinations. (AR 549.) Upon examination, he appeared well-groomed 10 and was cooperative. (AR 549.) He exhibited less irritability, and his mental status was normal 11 except for limited insight and judgment. (AR 549.) 12 Plaintiff presented for a follow up appointment in July 2017. (AR 538.) He reported his 13 ability to focus has been “okay” and to having fewer mood swings, but occasional anger outbursts. 14 (AR 538, 591.) Plaintiff has been helping to care for his father who has cancer. (AR 538, 591.) 15 He reported occasional feelings of sadness, but no mania, self-harming behavior, suicidal ideations, 16 and hallucinations. (AR 538, 591.) His mental status examination was the same as the prior 17 appointment. (AR 538, 591.) 18 In September 2017, Plaintiff reported at his appointment that he was “fine” with good 19 moods and lessened feelings of sadness. (AR 535, 578.) As with previous appointments, he denied 20 mania, hallucinations, suicidal ideations, and self-harming behavior. (AR 535, 578.) His mental 21 status examination was the same as before. (AR 535, 578.) 22 Plaintiff reported a “recent blow up with his brother” in November 2017. (AR 532.) His 23 mother noted he had been “disrespectful lately.” (AR 532.) Plaintiff is “socially awkward and has 24 difficulty making friends.” (AR 532.) He reported his sadness is lessened, but that he is having a 25 difficult time with his father, who is being treated for cancer. (AR 532.) Plaintiff’s mental status 26 examination was unchanged, but his intelligence was listed as “below average.” (AR 532.) 27 In April 2018, Plaintiff presented for a follow up appointment, having been off his 28 medication for two months due to a lack of health insurance. (AR 530, 570.) Plaintiff’s mental 1 status examination was the same as before, including his intelligence assessment. (AR 530, 570.) 2 He complained of an inability to focus and concentrate and outbursts of anger. (AR 573.) 3 2. Opinion Evidence 4 In November 2016, Mary Lewis, Psy. D., performed a mental status evaluation of Plaintiff. 5 (AR 506–11.) Plaintiff complained that he could not work because he “doesn’t listen a lot” and 6 “get[s] tired easily.” (AR 506.) He presented with good eye contact and hygiene and with a 7 cooperative and pleasant attitude. (AR 507, 508.) Plaintiff had no obvious expressive or receptive 8 language deficits. (AR 508.) He denied any psychiatric hospitalizations. (AR 507.) Plaintiff 9 reported spending time watching television, playing video games, reading books, and helping his 10 dad by cleaning his house and bringing him food. (AR 510.) He stated he is able to maintain his 11 personal hygiene and complete his chores. (AR 510.) 12 Dr. Lewis observed Plaintiff’s stream of mental activity was within normal limits, he was 13 oriented in all spheres, and his stream of consciousness was linear, logical, coherent, and goal 14 directed. (AR 508.) His mood was euthymic and his affect appropriate. (AR 508.) Dr. Lewis 15 noted that Plaintiff could name the current and three previous United States presidents, identify 16 how many eggs were in a dozen, and explain why food is placed in a refrigerator. (AR 508.) 17 Plaintiff was correctly able to recall four digits forwards and backwards on digit span testing, solve 18 basic arithmetic calculations, and perform serial two addition and subtractions. (Doc. 509.) He 19 could state the similarities of related items and recalled three of three items after a five-minute 20 delay. (Doc. 509). Dr. Lewis found Plaintiff’s judgment within normal limits. (AR 509.) She 21 opined that Plaintiff had no impairment in his abilities to perform basic work activities. (AR 510– 22 11.) 23 In December 2016, H. Amado, M.D., a state agency physician, reviewed the record and 24 found Plaintiff’s impairments of obesity and affective disorder non-severe. (AR 63–65.) Upon 25 reconsideration in March 2017, another state agency physician, N. Haroun, M.D., reviewed the 26 record and affirmed Dr. Amado’s findings. (AR 76–78.) 27 B. Administrative Proceedings 28 The Commissioner denied Plaintiff’s application for benefits initially on December 6, 1 2016, and again on reconsideration on March 16, 2017. (AR 17, 82–86, 94–99.) Consequently, 2 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 100–112.) 3 On December 14, 2018, Plaintiff appeared with counsel and testified before an ALJ as to 4 his alleged disabling conditions. (AR 37–50.) A vocational expert (“VE”) also testified at the 5 hearing. (AR 50–56.) 6 1. Plaintiff’s Testimony 7 Plaintiff testified that he lives in a house with his two brothers and parents. (AR 38.) He 8 dropped out of high school in the twelfth grade due to bullying. (AR 38–39.) According to 9 Plaintiff, he has difficulty focusing, concentrating, and performing tasks and they take him longer 10 than most people because his “brain processes slower than normal.” (AR 39, 40, 42.) He reported 11 that he is able to wash dishes, take out the garbage, and cook meals. (AR 40, 45.) Plaintiff takes 12 medication and needs reminders from his mother. (AR 48–49.) Plaintiff testified that he spends 13 time watching movies with his nieces, going to the park, and dining in restaurants with a friend. 14 (AR 41, 45.) 15 Plaintiff stated his anxiety causes him to “shut down” and that it is difficult for him to 16 interact with new or different people. (AR 43, 45, 46.) According to Plaintiff, he has had angry 17 outbursts at his brother and father and he “get[s] really frustrated a lot.” (AR 47.) He testified 18 that he still has suicidal thoughts due to his depression and anxiety. (AR 48.) Plaintiff stated he 19 has very few friends due to “social anxiety.” (AR 49.) 20 2. Vocational Expert’s Testimony 21 The ALJ asked the Vocational Expert (“VE”) to consider a person of Plaintiff’s age and 22 education, and work experience. (AR 51.) The VE was also to assume this person would have 23 no exertional limitations and able to perform non-complex, routine tasks, with the following 24 limitations: require jobs that are explained both verbally and through visual demonstration; no 25 public interactions; occasional co-worker contact; and no teamwork related tasks. (AR 51.) The 26 VE testified that such a person could perform unskilled work such as a conveyer feeder and off 27 bearer, Dictionary of Operational Titles (“DOT”) code 921.686-014, medium exertional level, 28 1 with a specific vocational preparation (SVP) 3 of 2, for which there are approximately 17,000 jobs 2 in the national economy. (AR 52.) The VE further testified that such a person could perform 3 unskilled work as a marker, DOT code 209.587-034, light exertional level, and SVP 2, for which 4 there are approximately 366,000 jobs, and could also perform work as a poultry offal icer, DOT 5 code 25.687-054, heavy exertional level and SVP 1, for which there are approximately 23,000 6 jobs in the nation. (AR 52.) 7 In a second hypothetical, the VE was asked by the ALJ to consider this same person as in 8 the first hypothetical, but include the additional limitation that the person would require frequent 9 supervision to remain on task. (AR 52.) The VE testified that no work would be available. (AR 10 53.) Plaintiff’s counsel asked the VE to consider the person presented in the first hypothetical, 11 but who would be off task 15% of the workday. (AR 53.) The VE responded that there would 12 be no work such a person could perform. (AR 53.) 13 C. The ALJ’s Decision 14 In a decision dated March 8, 2019, the ALJ found that Plaintiff was not disabled. (AR 17– 15 26.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 416.920(a)(4). 16 (AR 19–26.) The ALJ determined that Plaintiff had not engaged in substantial gainful activity 17 since June 22, 2016, the application date (step one). (AR 19.) At step two, the ALJ found Plaintiff’s 18 bipolar disorder severe. (AR 19.) Plaintiff did not have an impairment or combination of 19 impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, 20 Subpart P, Appendix 1 (“the Listings”) (step three). (AR 20–22) 21 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)4 and applied the RFC 22 3 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 23 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 24 the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level – over 10 years of preparation). Id. 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 assessment at steps four and five. See 20 C.F.R. § 416.920(a)(4) (“Before we go from step three 2 to step four, we assess your residual functional capacity . . . . We use this residual functional 3 capacity assessment at both step four and step five when we evaluate your claim at these steps.”). 4 The ALJ determined that Plaintiff had the RFC: 5 to perform a full range of work at all exertional levels but with the following non- exertional limitations: He can perform noncomplex, routine tasks. He can have no 6 public interactions. He can have occasional coworker contact with no teamwork 7 related tasks. 8 (AR 22.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 9 to cause the alleged symptoms[,]” she rejected Plaintiff’s subjective testimony as “not entirely 10 consistent with the medical evidence and other evidence in the record . . . .” (AR 23.) 11 The ALJ determined that Plaintiff had no past relevant work (step 4), but that he was not disabled 12 because, given his RFC, he could perform a significant number of other jobs in the local and 13 national economies, specifically conveyor feeder and off bearer, marker, and poultry offal icer 14 (step 5). (AR 25–26.) 15 Plaintiff sought review of this decision before the Appeals Council, which denied review 16 on February 13, 2020. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 17 Commissioner. 20 C.F.R. § 416.1481. 18 III. LEGAL STANDARD 19 A. Applicable Law 20 An individual is considered “disabled” for purposes of disability benefits if he or she is 21 unable “to engage in any substantial gainful activity by reason of any medically determinable 22 physical or mental impairment which can be expected to result in death or which has lasted or can 23 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 24 However, “[a]n individual shall be determined to be under a disability only if [her] physical or mental 25 impairment or impairments are of such severity that he is not only unable to do [her] previous work 26 but cannot, considering [her] age, education, and work experience, engage in any other kind of 27 substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 28 “The Social Security Regulations set out a five-step sequential process for determining 1 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 2 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 3 Ninth Circuit has provided the following description of the sequential evaluation analysis: 4 In step one, the ALJ determines whether a claimant is currently engaged in 5 substantial 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 6 impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or 7 combination of 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 8 not, the ALJ proceeds to step four and assesses whether the claimant is capable of 9 performing her 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 10 perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 11 12 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) (providing 13 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 14 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 15 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 16 “The claimant carries the initial burden of proving a disability in steps one through four of 17 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 18 “However, if a claimant establishes an inability to continue her past work, the burden shifts to the 19 Commissioner in step five to show that the claimant can perform other substantial gainful work.” 20 Id. (citing Swenson, 876 F.2d at 687). 21 B. Scope of Review 22 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 23 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 24 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is 25 ‘more than a mere scintilla,’” and means only “such relevant evidence as a reasonable mind might 26 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) 27 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). See also Ford v. Saul, 950 F.3d 28 1141, 1154 (9th Cir. 2020). 1 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 2 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 3 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 4 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when 5 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 6 F.3d at 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may 7 not substitute its judgment for that of the Commissioner.” (citations omitted)). 8 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 9 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 10 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 11 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 12 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 13 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 14 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 15 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 16 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 17 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 18 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 19 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 20 IV. DISCUSSION 21 22 Plaintiff contends that there is no substantial evidence to support the ALJ’s RFC 23 assessment. (Doc. 15 at 6–8; Doc. 20 at 2–4.) He points out that “no medical professional assessed 24 the impact of Plaintiff’s diagnoses and symptoms on functionality,” and that the ALJ should have 25 “obtain[ed] an opinion from an examining source.” (Doc. 15 at 8. See also Doc. 20 at 2.) Instead, 26 according to Plaintiff, the ALJ relied on her lay interpretation of the medical evidence and erred in 27 failing to develop the record further. (See Doc. 15 at 6, 8; Doc. 20 at 3.) Plaintiff contends that 28 because the ALJ failed to develop the record, substantial evidence does not support the ALJ’s RFC 1 determination and the matter should be remanded for further administrative proceedings. (See Doc. 2 15 at 8.) Plaintiff further asserts that the ALJ erred in discounting his subjective symptom 3 testimony. (See Doc. 15 at 9–10; Doc. 20 at 4–5.) 4 The Commissioner responds that Plaintiff failed to preserve the issue for appeal because 5 his counsel told the ALJ at the hearing that the record was complete. (Doc. 19 at 17–18.) The 6 Commissioner contends, alternatively, that no duty to develop the record arose because the ALJ 7 considered all of the evidence in the record, which was neither ambiguous nor inadequate, in 8 assessing Plaintiff’s RFC. (Id. at 20–21.) The Commissioner maintains that the ALJ’s RFC 9 assessment was therefore based on substantial evidence supported from interferences reasonably 10 drawn from the record and should be affirmed. (Id.) Finally, the Commissioner contends that the 11 ALJ’s discounting of Plaintiff’s subjective symptom statements was not erroneous. (Doc. 19 at 12 12–16.) 13 The Court addresses the parties’ contentions below, and finds that reversal is not warranted. 14 A. Plaintiff’s Challenge to the Record Does Not Constitute Reversible Error 15 1. The Issue Has Not Been Preserved 16 Preliminarily, as a rule, “when claimants are represented by counsel, they must raise all 17 issues and evidence at their administrative hearings in order to preserve them on appeal.” Meanel 18 v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). Here, as the Commissioner points out, Plaintiff was 19 represented by counsel at the administrative hearing—the same counsel who represents him before 20 this Court—who expressly stated that the record was complete when asked by the ALJ. (AR 36 21 (“ALJ: And do you consider the record complete? ATTY: Yes.”).); see Meanel, 172 F.3d at 1115; 22 Howard v. Astrue, 330 F. App’x 128, 130 (9th Cir. 2009) (issue waived because attorney had 23 opportunity to raise it at administrative hearing but did not do so); Ryan Patrick A. v. Berryhill, No. 24 EDCV 17-2526-JPR, 2019 WL 1383800, at *7 (C.D. Cal. Mar. 27, 2019) (issue forfeited where 25 the plaintiff was represented by counsel at the administrative hearing, who twice stated that the 26 record was complete); Valdez v. Berryhill, Case No. SA CV 16-0980 JCG, 2018 WL 317799, at *1 27 (C.D. Cal. Jan. 5, 2018) (issue not properly preserved where the plaintiff was represented by 28 counsel at the administrative hearing and specifically stated he had “no objection” to the record 1 when asked by the ALJ). Accordingly, the issue is not properly preserved for appeal. See Smith v. 2 Saul, No. 1:19-cv-01085-SKO, 2020 WL 6305830, at *7 (E.D. Cal. Oct. 28, 2020). 3 2. The ALJ Had No Duty to Develop the Record 4 Even if the issue had not been forfeited, Plaintiff has not shown that it warrants remand. 5 “An ALJ’s duty to develop the record further is triggered only when there is ambiguous evidence 6 or when the record is inadequate to allow for proper evaluation of the evidence.” Ford, 950 F.3d 7 at 1156; Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Plaintiff has not demonstrated 8 that the record was ambiguous or inadequate to allow for proper evaluation. The ALJ summarized 9 record evidence spanning 2014 through 2018 and found with the support of that record that Plaintiff 10 had not established he was disabled. (AR 20–25.) The record contained what appears to be 11 Plaintiff’s complete treatment records that supported the ALJ’s findings and did not present an 12 ambiguity or inadequacy. That the ALJ considered, but ultimately declined, to obtain an additional 13 psychological examination (see AR 54–55) is not, as Plaintiff advances, a concession that the 14 record was deficient, as such decisions are well within the ALJ’s discretion. See Pederson v. 15 Colvin, 31 F. Supp. 3d 1234, 1244 (E.D. Wash. 2014) (“[T]he Commissioner ‘has broad latitude 16 in ordering a consultative examination.’”) (quoting Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 17 2001)). See Albrecht v. Astrue, No. 1:11-cv-01319 GSA, 2012 WL 3704798, at *12 (E.D. Cal. 18 Aug. 27, 2012) (Consultative examination regarding Plaintiff’s impairments “not necessary” where 19 the existing evidence was sufficient to support the ALJ’s determination and such an exam was not 20 needed to resolve an inconsistency). 21 Notably, Plaintiff failed to submit any medical opinions from a treating or examining 22 physician as to his ability to work or his functional limitations. Because it is Plaintiff’s burden to 23 present evidence of disability, the mere absence of a report from a treating or examining physician 24 does not give rise to a duty to develop the record; instead, that duty is triggered only where there 25 is an inadequacy or ambiguity. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Alvarez 26 v. Astrue, No. 1:08-cv-01205-SMS, 2009 WL 2500492, at *10 (E.D. Cal. Aug. 14, 2009) (finding 27 absence of report from treating physician did not give rise to a duty to develop the record where 28 record contained opinions of the state agency physicians and plaintiff’s complete treatment 1 records); see also 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a 2 disability unless he furnishes such medical and other evidence of the existence thereof as the 3 Commissioner of Social Security may require.”); 20 C.F.R. § 416.920(a) (“[Y]ou have to prove to 4 us that you are . . . disabled . . . .”). The record contained Plaintiff’s complete treatment records, 5 as counsel conceded, and no “gaps” or inconsistencies were noted. See Findley v. Saul, No. 1:18- 6 CV-00341-BAM, 2019 WL 4072364, at *6 (E.D. Cal. Aug. 29, 2019) (finding the ALJ was not 7 obligated to further develop the record where counsel stated at the hearing that the record was 8 complete). See also Randolph v. Saul, 2:18-cv-00555-CLB, 2020 WL 504667, at *8 (D. Nev. Jan. 9 31, 2020) (same). In the absence of any inadequacy or ambiguity in the record, which Plaintiff has 10 not shown, the ALJ had no duty to develop it further. 11 3. The ALJ Did Not Err in Formulating Plaintiff’s RFC 12 An RFC “is the most [one] can still do despite [his or her] limitations” and it is “based on 13 all the relevant evidence in [one’s] case record,” rather than a single medical opinion or piece of 14 evidence. 20 C.F.R. § 416.945(a)(1); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It 15 is clear that it is the responsibility of the ALJ, not the claimant’s physician, to determine residual 16 functional capacity.”). Further, an ALJ’s RFC determination need not precisely reflect any 17 particular medical provider’s assessment. See Turner v. Comm’r Soc. Sec. Admin., 613 F.3d 1217, 18 1222-23 (9th Cir. 2010) (the ALJ properly incorporated physician’s observations in the RFC 19 determination while, at the same time, rejecting the implication that plaintiff was unable to 20 “perform simple, repetitive tasks in an environment without public contact or background 21 activity”). 22 Plaintiff’s primary criticism of the ALJ’s RFC assessment is his claim that it was the result 23 of the ALJ improperly imposing his own lay interpretation of the medical evidence. (See Doc. 21 24 at 11–12, 14; Doc. 25 at 6.) This argument is unavailing. The nature of the ALJ’s responsibility 25 is to interpret the evidence of record, including medical evidence. Andrews v. Shalala, 53 F.3d 26 1035, 1039 (9th Cir. 1995). Such a responsibility does not result in the ALJ committing legal error 27 when he assesses an RFC that is consistent with the record. See Mills v. Comm’r of Soc. Sec., No. 28 2:13-CV-0899-KJN, 2014 WL 4195012, at *4 (E.D. Cal. Aug. 22, 2014) (“[I]t is the ALJ’s 1 responsibility to formulate an RFC that is based on the record as a whole, and thus the RFC need 2 not exactly match the opinion or findings of any particular medical source.”) (citing Magallanes v. 3 Bowen, 881 F.2d 747, 753 (9th Cir. 1989)). 4 According to the record, the only expert medical opinions regarding Plaintiff’s mental 5 impairment are those of consultative examiner Dr. Lewis and State agency physicians Drs. Amado 6 and Haroun. (AR 24.) The ALJ considered these opinions in the content of the longitudinal record 7 and assigned them “little weight,” finding that Plaintiff’s “mental impairment has a more than 8 minimal impact on his ability to perform basic work activities” based on evidence not considered 9 by those physicians, including Plaintiff’s psychiatric hospitalization and his IEP in high school. 10 (AR 24.) The ALJ, as she is charged to do, then interpreted that evidence and the other evidence 11 of record, such as Plaintiff’s consistently normal mental status examination findings (see AR 382, 12 384, 388, 392, 406, 530, 532, 535, 538, 549, 570, 578, 591) and improvement with medication (see 13 AR 363, 384, 386, 388, 406, 535, 578)5, and formulated Plaintiff’s RFC.6 See, e.g., Mills, 2014 14 WL 4195012, at *4 (finding argument that the ALJ was improperly attempting to “play doctor” 15 lacked merit where the ALJ “carefully analyzed the various medical opinions, treatment records, 16 and plaintiff’s own testimony in formulating an RFC.”). See also 20 C.F.R. §§ 416.927(d)(2) (“the 17 final responsibility for deciding [RFC] is reserved to the Commissioner), § 416.945(a)(1) (“We 18 will assess your residual functional capacity based on all the relevant evidence in your case 19 record.”). Indeed, the ALJ ultimately formulated an RFC that included mental limitations, where 20 none were found by the opining physicians. (Compare AR 22 with AR 63–65, 76-78, 510–11.) 21 Plaintiff does not specify what additional functional limitations the record might establish 22 that were not accounted for in the ALJ’s RFC assessment. Nor does Plaintiff otherwise show any 23 inconsistency between the record and his RFC. To the extent Plaintiff is advocating for an 24 alternative interpretation of the evidence in the record, the Court will not second guess the ALJ’s 25 reasonable interpretation, even if such evidence could give rise to inferences more favorable to 26 27 5 “Impairments that can be controlled effectively with medication are not disabling for purposes of determining eligibility for SSI benefits.” Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006). 28 6 The ALJ’s RFC assessment is also based on consideration of the subjective complaint testimony, which, as set forth 1 Plaintiff. See Molina, 674 F.3d at 1110. 2 In sum, the Court finds that substantial evidence supports the ALJ’s conclusions regarding 3 the impact of Plaintiff’s impairments on the RFC. Plaintiff may disagree with the RFC, but the 4 Court must nevertheless uphold the ALJ’s determination because it is a rational interpretation of 5 the evidence. See Ford, 950 F.3d at 1159 (“Our review of an ALJ’s fact-finding for substantial 6 evidence is deferential”); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 7 B. The ALJ Properly Found Plaintiff Less Than Fully Credible 8 1. Legal Standard 9 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 10 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 11 the ALJ must determine whether the claimant has presented objective medical evidence of an 12 underlying impairment that could reasonably be expected to produce the pain or other symptoms 13 alleged. Id. The claimant is not required to show that his impairment “could reasonably be 14 expected to cause the severity of the symptom [he] has alleged; [he] need only show that it could 15 reasonably have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 16 F.3d 1028, 1036 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence of 17 malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 18 if he gives “specific, clear and convincing reasons” for the rejection.7 Id. As the Ninth Circuit has 19 explained: 20 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s 21 reputation for lying, prior inconsistent statements concerning the symptoms, and 22 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 23 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. 24 25 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 26 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may 27 consider include a claimant’s work record and testimony from physicians and third parties 28 1 concerning the nature, severity, and effect of the symptoms of which he complains. Light v. Social 2 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 3 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 4 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 5 2014) (quoting Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 6 General findings are not enough to satisfy this standard; the ALJ “‘must identify what testimony is 7 not credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 8 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 9 2. Analysis 10 As noted above, the ALJ found Plaintiff’s “medically determinable impairments could 11 reasonably be expected to cause the alleged symptoms.” (AR 23.) The ALJ also found that 12 “[Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these 13 symptoms are not entirely consistent with the medical evidence and other evidence in the record 14 for the reasons explained in this decision.” (AR 23.) Since the ALJ found Plaintiff’s “medically 15 determinable impairments could reasonably be expected to cause the alleged symptoms,” the only 16 remaining issue is whether the ALJ provided “specific, clear and convincing reasons” for Plaintiff’s 17 adverse credibility finding. See Vasquez, 572 F.3d at 591. 18 Here, the ALJ found that “the record does not indicate that [Plaintiff] is as limited as 19 described.” (See AR 25.) Had that been the end of the discussion, Plaintiff’s argument that the ALJ 20 erred by “fail[ing] to offer any clear or convincing reason for discounting Plaintiff’s symptoms and 21 alleged limitations” (Doc. 15 at 10) might have merit. However, the ALJ continued the analysis, 22 explaining that Plaintiff “was able to complete some activities of daily living” and setting forth 23 examples from the record. 24 It is appropriate for an ALJ to consider a claimant’s activities that undermine claims of 25 severe limitations in making the credibility determination. See Rollins v. Massanari, 261 F.3d 853, 26 857 (9th Cir. 2001); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); 27 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). See also Thomas, 278 F.3d at 958–59 (An ALJ 28 may support a determination that the claimant was not entirely credible by identifying 1 inconsistencies between the claimant’s complaints and the claimant’s activities.). 2 Notwithstanding, it is well-established that a claimant need not “vegetate in a dark room” in order 3 to be deemed eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987). However, 4 if a claimant can spend a substantial part of the day engaged in pursuits involving the performance 5 of functions that are transferable to a work setting, a specific finding as to this fact may be sufficient 6 to discredit an allegation of disability. Fair, 885 F.2d at 603. “Even where [Plaintiff’s] activities 7 suggest some difficulty functioning, they may be grounds for discrediting the claimant’s testimony 8 to the extent that they contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 9 1113. 10 Plaintiff alleges an inability to work due to ADHD and bipolar disorder, which he alleges 11 causes him to experience anxiety, have difficulty interacting with different or new people, and 12 trouble performing and completing tasks. (AR 39, 40, 42, 43, 45, 46, 57, 69,175.) Plaintiff further 13 reported having trouble with concentration, staying focused, following instructions, and getting 14 along with others. (AR 39, 47, 549, 573.) In evaluating Plaintiff’s credibility, however, the ALJ 15 cited activities that were inconsistent with Plaintiff’s testimony and statements concerning the 16 severity of his symptoms and impairments. 17 The ALJ noted, and the record reflects, that Plaintiff can complete household chores, 18 including washing dishes, taking out garbage, cooking simple meals, and performing yard work. 19 (AR 25, 40, 45, 384, 443, 510.) He had no problems with personal care, such as personal hygiene 20 and grooming. (AR 25, 382, 392, 406, 507, 508, 510, 549.) The record shows that Plaintiff can do 21 some shopping for necessities in public stores. (AR 25, 186, 198.) The ALJ also noted Plaintiff’s 22 statement that he previously worked with his father and cared for him during his illness. (AR 25, 23 538, 591, 615.) Plaintiff also reported helping his cousin, who had just had a baby, with her 24 household chores. (AR 443.) According to Plaintiff, he spends his time watching television, 25 playing video games, and reading books. (AR 510.) 26 The Court finds that these activities were reasonably considered by the ALJ to be 27 inconsistent with Plaintiff’s alleged inability to work due to difficulties in concentration and focus, 28 completing tasks, following instructions, and interacting with others. (AR 25.) Accordingly, the 1 inconsistencies between Plaintiff’s activity level and his complaints was a clear and convincing 2 reason to find his statements and testimony not credible. See 20 C.F.R. § 416.929(c)(3); Stubbs- 3 Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008). 4 V. CONCLUSION AND ORDER 5 6 After consideration of Plaintiff’s and the Commissioner’s briefs and a thorough review of 7 the record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 8 therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 9 Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff. 10 IT IS SO ORDERED. 11 Sheila K. Oberto 12 Dated: April 30, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28