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

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GIENGKHAM CHAOPRASRIHOMKHAO, Case No. 1:20-cv-00910-SKO 11 Plaintiff, 12 v. ORDER ON PLAINTIFF’S SOCIAL 13 SECURITY COMPLAINT KILOLO KIJAKAZI, 14 Acting Commissioner of Social Security,1 15 Defendant. (Doc. 1) 16 _____________________________________/ 17 18 I. INTRODUCTION 19 20 Plaintiff Giengkham Chaoprasrihomkhao (“Plaintiff”) seeks judicial review of a final 21 decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying 22 23 1 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 24 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in [their] official capacity, be the proper defendant”). The “Notice of New Authority” filed 25 by Plaintiff, which notifies the Court of the publication of the recent Supreme Court case Collins v. Yellen, 141 S.Ct. 1761, 1783–84 (2021) (Doc. 18), does not change this result. See Collins, 141 S.Ct. at 1787 n.21 (“Amicus warns that 26 if the Court holds that the Recovery Act’s removal restriction violates the Constitution, the decision will “call into question many other aspects of the Federal Government.” Amicus points to the Social Security Administration, the 27 Office of Special Counsel, the Comptroller, “multi-member agencies for which the chair is nominated by the President and confirmed by the Senate to a fixed term,” and the Civil Service. None of these agencies is before us, 28 and we do not comment on the constitutionality of any removal restriction that applies to their officers.”)). (emphasis 1 his applications for disability insurance benefits (“DIB”) and Supplemental Security Income (SSI) 2 under the Social Security Act (the “Act”). (Doc. 1.) The matter is currently before the Court on 3 the parties’ briefs, which were submitted, without oral argument, to the Honorable Sheila K. 4 Oberto, United States Magistrate Judge.2 5 II. BACKGROUND 6 Plaintiff was born on May 5, 1965, is illiterate, completed the sixth grade in Laos, and 7 previously worked as an apartment manager from 1999 to 2009. (Administrative Record (“AR”) 8 31, 34, 38, 48, 55, 64, 66, 74, 76, 84, 148, 173, 177, 179, 196, 209, 212, 230, 356, 361, 372, 392, 9 361.) Plaintiff filed claims for DIB and SSI payments on January 28, 2013 and April 2, 2013, 10 respectively, initially alleging he became disabled on August 25, 1996, due to digestive system 11 problems, high cholesterol, and fatigue. (AR 48, 57, 66, 67, 76, 77, 88, 91, 96, 154, 173, 174, 204, 12 350.) He thereafter amended his alleged onset date to September 23, 2009. (AR 173, 178, 230, 13 350, 353, 356, 406.) 14 Following a hearing, an Administrative Law Judge (ALJ) issued a written decision on June 15 19, 2015, finding Plaintiff not disabled. (AR 14–45.) Plaintiff appealed the decision to the district 16 court, who, on January 3, 2018, remanded the case for further proceedings to resolve a conflict 17 between the Vocational Expert (VE)’s testimony and the language levels required under the 18 Dictionary of Occupational Titles (DOT). (AR 451–59.) Upon remand, the Appeals Council 19 directed the assigned ALJ to determine whether Plaintiff was able to perform his past relevant work 20 as actually or generally performed. (AR 350.) The ALJ thereafter conducted two hearings and 21 issued a new written decision once again finding Plaintiff not disabled. 22 A. Relevant Evidence of Record3 23 1. Medical Evidence 24 In December 2012, Plaintiff reported he experienced nausea and/or vomiting every day for 25 10 years, and heartburn and difficulty swallowing and/or eating every day for one year. (AR 242.) 26 Plaintiff underwent an esophagogastroduodenoscopy with small bowel, gastric, and 27 2 The parties have consented to the jurisdiction of the U.S. Magistrate Judge. (See Doc. 10.) 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 gastroesophageal junction biopsies in January 2013. (AR 240–41.) Esophagus examination 2 showed dilated tortuous esophagus with elevated pressure at gastroesophageal junction. (AR 241.) 3 Stomach examination including retroflex examination showed mild gastritis throughout the 4 stomach. (AR 241.) Duodenal examination up to the second part showed multiple 3-4 mm clean- 5 based ulcers at the duodenal bulb. (AR 241.) Pathology results revealed historically unremarkable 6 small bowel biopsy; a gastric biopsy with minimal chronic gastritis; and a gastro-esophageal 7 junction biopsy with reflux changes of squamous mucosa. (AR 248.) Following the 8 esophagogastroduodenoscopy, Plaintiff was recommended to undergo a motility study and 9 esophagram and to take proton-pump inhibitor medication. (AR 241.) Plaintiff reported he had 10 trouble swallowing for “more than 10 years” in February 2013. (AR 249.) In February and April 11 2013, surgery was recommended to correct Plaintiff’s known esophageal obstruction, but he 12 declined surgery due to “fear.” (AR 249, 257, 305.) 13 In October 2013, Plaintiff presented to Vang Moua, P.A. of North Marks Medical Clinic to 14 establish care for his history of difficulty swallowing. (AR 307–10.) He reported stopping seeing 15 his previous doctor because he “would not sign his disability paper.” (AR 309.) His refusal to 16 undergo surgery was documented. (AR 309.) Plaintiff’s examination was normal except for 17 localized tenderness at the epigastric region. (AR 309.) 18 In March 2015, Plaintiff presented for a routine follow-up appointment with P.A. Moua. 19 (AR 312–14.) He reported compliance with medications with relief but still difficulties 20 swallowing. (AR 313.) Upon examination, Plaintiff again exhibited localized tenderness at the 21 epigastric region but otherwise normal results. (AR 314.) Plaintiff’s examination results in May 22 2015 were the same as before. (AR 745–47.) 23 Plaintiff requested medication refills in November 2016. (AR 715–18.) He complained of 24 episodes of inability to swallow with epigastric pain. (AR 716.) Plaintiff’s examination was 25 normal except for localized tenderness at the epigastric region. (AR 716.) His refusal to see a 26 gastrointestinal specialist because he wanted to avoid surgery was noted. (AR 717.) In June 2017, 27 Plaintiff presented for a routine follow-up; his examination was the same as before. (AR 705–08.) 28 Plaintiff complained of head, neck, and back pain following a car accident in January 2018. 1 (AR 691–94.) Upon examination, Plaintiff’s range of motion in his neck was normal, but he had 2 pain with motion and tenderness. (AR 693.) He had pain with movement in both shoulders, with 3 normal rotator cuff function. (AR 694.) Tenderness was noted on palpation in Plaintiff’s 4 glenohumeral joint and Trapezius muscles. (AR 694.) Plaintiff’s lumbar spine had no limitation 5 in range of motion, but pain with movement was noted. (AR 694.) Spinous process tenderness 6 was noted on both sides at L4 and L5, and Plaintiff’s straight leg raising test was positive. (AR 7 694.) 8 In May 2018, Plaintiff presented for a tuberculosis test, which was negative. (AR 687–89.) 9 A physical examination was normal. (AR 689.) Earlier that same month, Plaintiff presented for a 10 well visit and routine health maintenance medical exam with P.A. Moua. (AR 679–86.) He 11 reported that his low back pain from his previous car accident had improved. (AR 682.) Plaintiff’s 12 examination was normal, except for localized tenderness at epigastric region. (AR 682–83.) He 13 “refus[ed] referral to GI for Colonoscopy and for evaluation of Gastritis and esophageal disorder.” 14 (AR 685.) 15 In August 2018, Plaintiff presented for a review of recent diagnostic studies. (AR 669–72.) 16 He stated his condition has been stable with medication, but still complained of esophageal and 17 epigastric pain when eating. (AR 671.) Upon examination, Plaintiff again exhibited localized 18 tenderness at the epigastric region but otherwise normal results. (AR 671.) 19 Plaintiff requested medication refills and disability forms in September 2018. (AR 665– 20 68.) He also complained of cough with green mucous. (AR 666.) Plaintiff’s examination was 21 normal as before, except for localized tenderness at epigastric region. (AR 667.) That same month, 22 Plaintiff was evaluated for hearing loss, after complaining of a loss of hearing for six to seven years. 23 (AR 657–58.) He was assessed with mild to moderate sensorineural hearing loss. (AR 658.) He 24 exhibited normal speech and was found to still be able to hear normal-level conversation. (AR 25 658.) 26 2. Opinion Evidence 27 In June 2013, Stephen A. Whaley, M.D., a state agency physician, reviewed the record and 28 1 assessed Plaintiff’s residual functional capacity (RFC).4 (AR 78–80, 93–95.) Dr. Whaley found 2 that Plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or 3 walk for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; 4 and perform unlimited pushing/pulling with the upper and lower extremities, subject to the lift and 5 carry restrictions. (AR 53–54, 62–63.) Upon reconsideration in October 2013, another state agency 6 physician, M. Bayar, M.D., reviewed the record and affirmed Dr. Whaley’s findings. (AR 72–73, 7 82–83.) 8 In March 2015, treating physician John Lubenko, M.D. of North Marks Medical Clinic 9 completed a physical medical source statement form. (AR 336–39.) He opined that Plaintiff could 10 rarely lift and carry 15 pounds; occasionally lift and carry 10 pounds; frequently lift and carry five 11 pounds; and constantly lift and carry less than five pounds. (AR 336-37.) Dr. Lubenko also opined, 12 inter alia, that Plaintiff would need to lie down two hours per workday; would need unscheduled 13 breaks every two hours for 15 minutes; would be off task more than 30% per workday; and would 14 be absent three days per month. (AR 337–39.) 15 Treating physician Carlos Cordoba, M.D., and P.A. Moua completed the same form as Dr. 16 Lubenko in September 2018. (AR 661–64.) They opined that Plaintiff could lift and carry up to 17 10 pounds rarely; could lift and carry up to five pounds frequently; and could lift and carry less 18 than five pounds constantly. (AR 661.) They also opined, inter alia, that Plaintiff would need to 19 lie down four hours per workday; would need unscheduled breaks every 1–2 hours for 15 minutes; 20 would be off task more than 30% per workday; and would have absenteeism at a rate of three days 21 per month. (AR 662–64.) 22 B. Administrative Proceedings 23 The Commissioner denied Plaintiff’s application for benefits initially on June 12, 2013, 24 25 4 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES 26 II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an 27 individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 1 and again on reconsideration on November 1, 2013. (AR 14, 88–93, 96–100, 468.) Following a 2 hearing, an ALJ issued a written decision on June 19, 2015, finding Plaintiff not disabled. (AR 3 14–45.) Plaintiff appealed the decision to the district court, who, on January 3, 2018, remanded 4 the case for further proceedings to resolve a conflict between the VE’s testimony and the language 5 levels required under the Dictionary of Occupational Titles (DOT). (AR 451–59.) Upon remand, 6 the Appeals Council directed the assigned ALJ to determine whether Plaintiff was able to perform 7 his past relevant work as actually or generally performed. (AR 350.) 8 On January 9 and May 8, 2019, Plaintiff appeared with counsel and testified before the 9 ALJ as to his alleged disabling conditions. (AR 383–91, 413–36.) At the first hearing, Plaintiff 10 testified that he previously worked as an apartment manager during 2004 to 2009, and was able 11 to do that job despite his poor English skills by asking questions. (AR 418–19.) His 12 gastrointestinal condition (difficulty swallowing food) caused him pain and ultimately resulted in 13 an inability to work. (AR 423–24, 425.) Plaintiff stated that his condition has gotten worse. (AR 14 424.) He testified that he does not want to have surgery. (AR 425.) 15 At the second hearing, Plaintiff testified that as an apartment manager, he cleaned out 16 apartments after they were vacated and cleaned common areas. (AR 384–85.) According to 17 Plaintiff, he could not eat regular meals and it was painful to eat too much. (AR 385–86.) When 18 trying to swallow food, he testified it felt “block[ed]” and he would have to throw up. (AR 386.) 19 Plaintiff testified his doctor told him that his stomach valve is closed. (AR 386.) He stated his 20 doctor recommended surgery, but he was not going to do it due to fear. (AR 386, 389.) According 21 to Plaintiff, he needed to lie down for more than half the day to relieve his stomach pain, and it 22 affected his strength. (AR 387.) Plaintiff testified that the most he could lift was less than five 23 pounds and that he could only stand for 30 minutes at a time. (AR 387–88.) 24 A VE also testified at the hearings. (AR 50–56.) He testified that Plaintiff had past 25 relevant work as a manager of an apartment house, Dictionary of Operational Titles (“DOT”) 26 code 186.167-018, with a light exertional level as generally performed and a specific vocational 27 28 1 preparation (SVP)5 of 5. (AR 391–92.) According to the VE, as actually performed, the 2 exertional level for the job was medium and an SVP of 3. (AR 392–93.) 3 The ALJ asked the VE a hypothetical question in which the VE was to consider a person 4 of Plaintiff’s age, lack of literacy, and work experience, who is limited to medium work. (AR 5 393.) The VE testified that such a person could perform Plaintiff’s past relevant work only as 6 actually performed, but not as generally performed per the DOT. (AR 395.) The VE further 7 testified that such a person could perform other medium positions under the DOT in the national 8 economy, such as a packer of agricultural produce, DOT code 920.687-134 and SVP 2; kitchen 9 helper, DOT code 318.687-010 and SVP 2; and meat trimmer, DOT Code 525.684-054 and SVP 10 2. (AR 395–396.) The VE testified that a second hypothetical person who was limited to light 11 work would be unable to perform Plaintiff’s past relevant work. (AR 396–96.) The ALJ observed 12 such a person who had such limitations would be deemed disabled under Medical-Vocational 13 Guidelines, 20 CFR, Part 404, Subpart P, Appendix 2 § 202.09. (AR 396.) 14 C. The ALJ’s Decision 15 In decision dated July 30, 2019, the assigned ALJ once again found that Plaintiff not 16 disabled. (AR 350–62.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 17 §§ 404.1520, 416.920. (AR 353–362.) The ALJ decided that Plaintiff met the insured status 18 requirements of the Act through December 31, 2013, and he had not engaged in substantial gainful 19 activity since September 23, 2009, the amended alleged onset date (step one). (AR 353.) At step 20 two, the ALJ found Plaintiff’s following impairments to be severe: chronic esophageal disorder 21 with tortuosity and dilation; dysphagia (difficulty swallowing) and gastritis; mild-to-moderate 22 bilateral sensorineural hearing loss; hyperlipidemia; and depressive disorder. (AR 353–54.) 23 Plaintiff did not have an impairment or combination of impairments that met or medically equaled 24 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step 25 three). (AR 354–55.) 26 5 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in 28 the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level 1 The ALJ then assessed Plaintiff’s RFC and applied the assessment at steps four and five. 2 See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (“Before we go from step three to step four, we 3 assess your residual functional capacity . . . . We use this residual functional capacity assessment 4 at both step four and step five when we evaluate your claim at these steps.”). The ALJ determined 5 that Plaintiff had the RFC: 6 to perform medium work as defined in 20 CFR [§] 404.1567(c), and [§] 416.967(c), including lifting and carrying 50 pounds occasionally and 25 pounds frequently; 7 standing for six hours; walking for six hours; and sitting for six hours in an eight- 8 hour workday, with the following restrictions: he could frequently balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, scaffolds. 9 (AR 356–61.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 10 expected to cause the alleged symptoms[,]” he rejected Plaintiff’s subjective testimony as “not 11 credible to the extent they were inconsistent with the above residual functional capacity 12 assessment.” (AR 361.) Based on this RFC assessment, the ALJ found that Plaintiff was able to 13 perform his past relevant work of apartment manager as actually performed, but not as generally 14 performed per the DOT (step four). (AR 361.) Ultimately, the ALJ concluded that Plaintiff was 15 not disabled from August 25, 1996, through the date of his decision. (AR 361–62.) 16 Plaintiff sought review of this decision before the Appeals Council, which denied review 17 on April 28, 2020. (AR 340–46.) Therefore, the ALJ’s decision became the final decision of the 18 Commissioner. 20 C.F.R. §§ 404.981, 416.1481. 19 20 III. LEGAL STANDARD A. Applicable Law 21 An individual is considered “disabled” for purposes of disability benefits if he or she is 22 unable “to engage in any substantial gainful activity by reason of any medically determinable 23 physical or mental impairment which can be expected to result in death or which has lasted or can 24 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 25 However, “[a]n individual shall be determined to be under a disability only if [their] physical or 26 mental impairment or impairments are of such severity that he is not only unable to do [their] 27 previous work but cannot, considering [their] age, education, and work experience, engage in any 28 1 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 2 “The Social Security Regulations set out a five-step sequential process for determining 3 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 4 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 5 Ninth Circuit has provided the following description of the sequential evaluation analysis: 6 In step one, the ALJ determines whether a claimant is currently engaged in 7 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 8 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 9 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 10 not, the ALJ proceeds to step four and assesses whether the claimant is capable of 11 performing [their] 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 12 perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 13 14 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) (providing 15 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 16 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 17 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 18 “The claimant carries the initial burden of proving a disability in steps one through four of 19 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 20 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to 21 the Commissioner in step five to show that the claimant can perform other substantial gainful work.” 22 Id. (citing Swenson, 876 F.2d at 687). 23 B. Scope of Review 24 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 25 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 26 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is 27 ‘more than a mere scintilla,’” and means only “such relevant evidence as a reasonable mind might 28 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) 1 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). See also Ford v. Saul, 950 F.3d 2 1141, 1154 (9th Cir. 2020). 3 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 4 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 5 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 6 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when 7 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 8 F.3d at 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may 9 not substitute its judgment for that of the Commissioner.” (citations omitted)). 10 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 11 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 12 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 13 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 14 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 15 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 16 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 17 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 18 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 19 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 20 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 21 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 22 IV. DISCUSSION 23 24 Plaintiff contends that there is no substantial evidence to support the ALJ’s RFC assessment 25 that Plaintiff could perform medium work. (Doc. 17 at 6–13.) He points out that “no medical 26 source in the record supports the RFC,” and that the ALJ could have sought discovery from 27 physicians, ordered a consultative examination, or adduced testimony from a medical expert at the 28 hearing. (Doc. 17 at 6–7, 9.) Instead, according to Plaintiff, the ALJ relied on his lay interpretation 1 of the medical evidence and erred in failing to develop the record further. (See Doc. 17 at 8, 9.) 2 Plaintiff contends that because the ALJ failed to develop the record, substantial evidence does not 3 support the ALJ’s RFC determination, and the Court should reverse and award benefits. (See Doc. 4 17 at 10.) Plaintiff further asserts that the ALJ erred in evaluating the medical opinion evidence. 5 (See Doc. 17 at 11–13.) 6 The Acting Commissioner responds that the ALJ’s RFC assessment was based on 7 substantial evidence supported from interferences reasonably drawn from the record and should be 8 affirmed. (Doc. 19 at 7–9.) The Acting Commissioner further maintains that no duty to develop 9 the record arose because the ALJ considered all of the evidence in the record, which was neither 10 ambiguous nor inadequate, in assessing Plaintiff’s RFC. (Id. at 9–10.) Finally, the Acting 11 Commissioner contends that the ALJ’s evaluation of the medical opinion evidence was not 12 erroneous, and that, in any event, remand for the payment benefits is not warranted. (Doc. 19 at 13 10–13.) 14 The Court addresses the parties’ contentions below, and finds that reversal is not warranted. 15 A. The ALJ Had No Duty to Develop the Record 16 “An ALJ’s duty to develop the record further is triggered only when there is ambiguous 17 evidence or when the record is inadequate to allow for proper evaluation of the evidence.” Ford, 18 950 F.3d at 1156; Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). As an initial matter, 19 Plaintiff has not demonstrated that the record was ambiguous or inadequate to allow for proper 20 evaluation. To the contrary, when the ALJ asked the Plaintiff’s attorney at the hearing whether the 21 record was complete, he responded “I believe so.” (AR 412.) See Findley v. Saul, No. 1:18-CV- 22 00341-BAM, 2019 WL 4072364, at *6 (E.D. Cal. Aug. 29, 2019) (finding the ALJ was not 23 obligated to further develop the record where counsel stated at the hearing that the record was 24 complete). See also Randolph v. Saul, 2:18-cv-00555-CLB, 2020 WL 504667, at *8 (D. Nev. Jan. 25 31, 2020) (same). In the absence of any inadequacy or ambiguity in the record, which Plaintiff has 26 not shown, the ALJ had no duty to develop it further. 27 B. The ALJ Did Not Err in Formulating Plaintiff’s RFC 28 An RFC “is the most [one] can still do despite [their] limitations” and it is “based on all the 1 relevant evidence in [one’s] case record,” rather than a single medical opinion or piece of evidence. 2 20 C.F.R. § 416.945(a)(1); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that 3 it is the responsibility of the ALJ, not the claimant’s physician, to determine residual functional 4 capacity.”). Further, an ALJ’s RFC determination need not precisely reflect any particular medical 5 provider’s assessment. See Turner v. Comm’r Soc. Sec. Admin., 613 F.3d 1217, 1222-23 (9th Cir. 6 2010) (the ALJ properly incorporated physician’s observations in the RFC determination while, at 7 the same time, rejecting the implication that plaintiff was unable to “perform simple, repetitive 8 tasks in an environment without public contact or background activity”). 9 Plaintiff’s primary criticism of the ALJ’s RFC assessment is his claim that it was the result 10 of the ALJ improperly imposing his own lay interpretation of the medical evidence. (See Doc. 17 11 at 7–8.) This argument is unavailing. The nature of the ALJ’s responsibility is to interpret the 12 evidence of record, including medical evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 13 1995). Such a responsibility does not result in the ALJ committing legal error when he assesses an 14 RFC that is consistent with the record. See Mills v. Comm’r of Soc. Sec., No. 2:13-CV-0899-KJN, 15 2014 WL 4195012, at *4 (E.D. Cal. Aug. 22, 2014) (“[I]t is the ALJ’s responsibility to formulate 16 an RFC that is based on the record as a whole, and thus the RFC need not exactly match the opinion 17 or findings of any particular medical source.”) (citing Magallanes v. Bowen, 881 F.2d 747, 753 18 (9th Cir. 1989)). 19 As set forth more fully below, the ALJ considered the opinions of the treating and State 20 agency physicians and properly assigned them “little weight,” finding them inconsistent with the 21 longitudinal record. (AR 359–60.) The ALJ then, as he is charged to do, interpreted that record 22 and assessed Plaintiff’s RFC based thereon, specifically noting Plaintiff’s consistently normal 23 physical examination findings (see AR 309, 314, 667, 671, 682–83, 689, 706, 716, 746) and his 24 work history, which established that he performed medium exertional work as an apartment 25 manager for over ten years with the same purportedly disabling impairments (see AR 148, 179, 26 196, 242, 249, 384–85, 418).6 As to the latter, evidence of Plaintiff’s ability to work with 27 6 The Acting Commissioner argues that the fact that Plaintiff declined surgery is substantial evidence supporting the 28 RFC assessment. (See Doc. 19 at 8–9.) While it is not clear that the ALJ based the RFC on this evidence, to the extent 1 impairments reasonably suggests that the impairments are not totally disabling. The only evidence 2 that Plaintiff’s condition worsened since his alleged onset date was his discounted testimony, which 3 he does not challenge. See, e.g., Stanley v. Astrue, No. 1:09–cv–1743 SKO, 2010 WL 4942818, at 4 *6 (E.D. Cal. Nov. 30, 2010).7 See Kenneth C. v. Comm’r of Soc. Sec., No. C18-5773 RAJ, 2019 5 WL 4261156, at *4 (W.D. Wash. Sept. 9, 2019) (“Disability is defined as the inability to work due 6 to physical or mental impairment. The fact that Plaintiff worked while he had the same back 7 impairment, as shown by a lack of ‘objective worsening,’ shows that the back impairment is not 8 disabling), aff’d sub nom. Cornellier v. Saul, 834 F. App’x 321 (9th Cir. 2020). See also Drouin 9 v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992) (ability to hold two previous jobs undermined 10 claim of disability); Gregory v. Bowen, 844 F.2d 664, 666–67 (9th Cir. 1988) (ALJ’s determination 11 that claimant was not disabled supported by substantial evidence that the condition of claimant’s 12 back had remained constant for several years and had not prevented them from working over that 13 time). 14 Based on the foregoing, the Court finds that substantial evidence supports the ALJ’s 15 conclusions regarding the impact of Plaintiff’s impairments on the RFC. See, e.g., Mills, 2014 WL 16 4195012, at *4 (finding argument that the ALJ was improperly attempting to “play doctor” lacked 17 merit where the ALJ “carefully analyzed the various medical opinions, treatment records, and 18 plaintiff’s own testimony in formulating an RFC.”). See also 20 C.F.R. §§ 404.1527(d)(2), 19 416.927(d)(2) (“the final responsibility for deciding [RFC] is reserved to the Commissioner), §§ 20 21 considered as evidence of non-disability, see Molina, 674 F.3d at 1113-14, such treatment must be “expected to restore [the claimant’s] ability to work,” see 20 C.F.R. §§ 404.1530(a), 416930(a). It does not include treatments “merely 22 recommended or suggested” by a medical source. See, e.g., Maxwell v. Astrue, No. 1:11-CV-01509 SMS, 2012 WL 4035538, at *6 (E.D. Cal. Sept. 12, 2012) (finding record showed colectomy procedure was recommended but not 23 prescribed and claimant’s decision not to undergo procedure was not a valid reason to discredit their testimony); Aguirre v. Astrue, No. ED CV 08-1176PLA, 2009 WL 3346741, at *6 (C.D. Cal. Oct. 14, 2009) (finding ALJ erred by 24 discrediting Plaintiff’s testimony for noncompliance with treatment when she refused treatment which was never actually prescribed). Here, the evidence establishes that surgery was merely recommended to Plaintiff, not prescribed 25 (AR 249, 257, 305, 309, 386, 389, 717), and thus his unwillingness to undergo a recommended surgery does not constitute failure to follow prescribed treatment. See Overacker v. Astrue, No. CV-11-3017-CI, 2012 WL 5993753, at 26 *5 (E.D. Wash. Nov. 30, 2012) (noting it is improper to deny benefits on the basis of declined treatment when treatment is only suggested rather than a prescribed course of treatment). Such error is nevertheless harmless in light of the other 27 substantial evidence in the record supporting the RFC. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). 28 7 The Court deems the ALJ’s unchallenged credibility determination binding. See, e.g., Stanley v. Astrue, No. 1:09– 1 404.1545(a)(1), 416.945(a)(1) (“We will assess your residual functional capacity based on all the 2 relevant evidence in your case record.”). To the extent Plaintiff is advocating for an alternative 3 interpretation of the evidence in the record, the Court will not second guess the ALJ’s reasonable 4 interpretation, even if such evidence could give rise to inferences more favorable to Plaintiff. See 5 Molina, 674 F.3d at 1110. Plaintiff may disagree with the RFC, but the Court must nevertheless 6 uphold the ALJ’s determination because it is a rational interpretation of the evidence. See Ford, 7 950 F.3d at 1159 (“Our review of an ALJ’s fact-finding for substantial evidence is deferential”); 8 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 9 C. The ALJ Appropriately Assessed the Opinions of Drs. Lubenko and Cordoba and P.A. Moua 10 1. Legal Standard 11 12 The medical opinions of three types of medical sources are recognized in Social Security 13 cases: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not 14 treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant 15 (nonexamining physicians).” Lester, 81 F.3d at 830. Ordinarily, more weight is given to the 16 opinion of a treating professional, who has a greater opportunity to know and observe the patient 17 as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). “To evaluate whether 18 an ALJ properly rejected a medical opinion, in addition to considering its source, the court 19 considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the 20 opinions.” Cooper v. Astrue, No. CIV S–08–1859 KJM, 2010 WL 1286729, at *2 (E.D. Cal. Mar. 21 29, 2010). An ALJ may reject an uncontradicted opinion of a treating medical professional only 22 for “clear and convincing” reasons. Lester, 81 F.3d at 830. In contrast, a contradicted opinion of 23 a treating or examining professional may be rejected for “specific and legitimate reasons that are 24 supported by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing 25 Ryan, 528 F.3d at 1198); see also Lester, 81 F.3d at 830. “An ALJ can satisfy the ‘substantial 26 evidence’ requirement by ‘setting out a detailed and thorough summary of the facts and conflicting 27 clinical evidence, stating [their] interpretation thereof, and making findings.’” Garrison v. Colvin, 28 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Reddick, 157 F.3d at 725). “The ALJ must do more 1 than state conclusions. [They] must set forth [their] own interpretations and explain why they, 2 rather than the doctors’, are correct.” Id. (citation omitted). 3 “[E]ven when contradicted, a treating physician’s opinion is still owed deference and will 4 often be ‘entitled to the greatest weight . . . even if it does not meet the test for controlling weight.’” 5 Garrison, 759 F.3d at 1012 (quoting Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007)). The 6 regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund, 253 F.3d 7 at 11578, except that the ALJ in any event need not give it any weight if it is conclusory and 8 supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) 9 (treating physician’s conclusory, minimally supported opinion rejected); see also Magallanes v. 10 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The opinion of a non-examining professional, by itself, 11 is insufficient to reject the opinion of a treating professional. Lester, 81 F.3d at 831. 12 2. Analysis 13 It is uncontested that Drs. Lubenko and Cordoba and P.A. Moua from the North Marks 14 Medical Clinic treated Plaintiff, and thus are considered a treating sources. Dr. Lubenko opined, 15 in a medical source statement form, that Plaintiff could rarely lift and carry 15 pounds; occasionally 16 lift and carry 10 pounds; frequently lift and carry five pounds; and constantly lift and carry less 17 than five pounds. (AR 336-37.) Dr. Lubenko also opined, inter alia, that Plaintiff would need to 18 lie down two hours per workday; would need unscheduled breaks every two hours for 15 minutes; 19 would be off task more than 30% per workday; and would be absent three days per month. (AR 20 337–39.) Dr. Cordoba and P.A. Moua completed the same form, and similarly opined that Plaintiff 21 could lift and carry up to 10 pounds rarely; could lift and carry up to five pounds frequently; and 22 could lift and carry less than five pounds constantly. (AR 661.) They also opined, inter alia, that 23 Plaintiff would need to lie down four hours per workday; would need unscheduled breaks every 1– 24 2 hours for 15 minutes; would be off task more than 30% per workday; and would have absenteeism 25 at a rate of three days per month. (AR 662–64.) These opinions are contradicted by the medical 26 opinion evidence of State agency physicians Drs. Whaley and Bayar, who found that Plaintiff could 27 8 The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3) nature and extent of 28 the treatment relationship; (4) supportability of diagnosis; (5) consistency; and (6) specialization. 20 C.F.R. §§ 1 perform light work. (AR 53–54, 62–63, 72–73, 82–83.) Thus, the ALJ was required to set forth 2 “specific and legitimate reasons,” supported by substantial evidence, for rejecting the opinions. 3 In rejecting the opinions, the ALJ found they were inconsistent with progress notes, 4 treatment notes, and other evidence of record. (AR 360.) An ALJ may discount an examining 5 physician’s opinion that is not supported by the medical record, including their own treatment 6 notes. See Valentine, 574 F.3d at 692–93 (contradiction between physician’s opinion and his 7 treatment notes constitutes specific and legitimate reason for rejecting opinion); Bayliss, 427 F.3d 8 at 1216 (same); Batson, 359 F.3d at 1195; Thomas, 278 F.3d at 957; Johnson v. Shalala, 60 F.3d 9 1428, 1433 (9th Cir. 1995) (ALJ properly rejected medical opinion where doctor’s opinion was 10 contradicted by his own contemporaneous findings); Khounesavatdy v. Astrue, 549 F. Supp. 2d 11 1218, 1229 (E.D. Cal. 2008) (“[I]t is established that it is appropriate for an ALJ to consider the 12 absence of supporting findings, and the inconsistency of conclusions with the physician’s own 13 findings, in rejecting a physician’s opinion.”). Here, although the treaters opined that Plaintiff had 14 significant limitations in lifting, carrying, remaining on task, and workplace attendance (AR 336– 15 39, 661–41), the ALJ noted (AR 357–60) that Plaintiff’s physical examination records from North 16 Marks Medical Clinic for the period of May 2015 to September 2018 showed at most localized 17 epigastric tenderness and were otherwise consistently normal (AR 309, 314, 667, 671, 682–83, 18 689, 706, 716, 746). 19 To the extent that Plaintiff relies on Embrey v. Bowen, 849 F.2d 418 (9th Cir. 1988), for the 20 proposition that the ALJ must discuss the evidence supporting a conclusion with enough 21 specificity, see Doc. 17 at 12, Embrey is distinguishable. In Embrey, the court held that an ALJ’s 22 conclusion that objective findings do not support a treating physician’s opinion is alone not a 23 sufficiently specific reason to reject that opinion. 849 F.2d at 421–22. Here, the ALJ did not 24 merely conclude that the opinions were inconsistent; he instead identified the specific examination 25 records showing that, contrary to the treaters’ assessments, Plaintiff can perform greater-than- 26 sedentary work. (See AR 360.) In fact, as observed above, there is substantial evidence in the 27 record that Plaintiff can perform at least medium work (see AR 148, 179, 196, 242, 249, 384–85, 28 418). 1 In sum, the ALJ identified ample medical evidence in the record that undermines the 2 opinions that Plaintiff is capable of only sedentary level work. This is a specific, legitimate reason 3 supported by substantial evidence for discounting this opinion. See Magallanes, 881 F.2d at 751; 4 see also Batson, 359 F.3d at 1195; Thomas, 278 F.3d at 957. As the Court may neither reweigh 5 the evidence nor substitute its judgment for that of the Commissioner, it will not disturb the ALJ’s 6 finding on this basis. See Robbins, 466 F.3d at 882; Thomas, 278 F.3d at 954 (Where the evidence 7 is susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that 8 must be upheld.); Batson, 359 F.3d at 1196 (“When evidence reasonably supports either confirming 9 or reversing the ALJ’s decision, we may not substitute our judgment for that of the ALJ.”). 10 V. CONCLUSION AND ORDER 11 12 After consideration of Plaintiff’s and the Commissioner’s briefs and a thorough review of 13 the record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 14 therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 15 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, and against Plaintiff. 16 IT IS SO ORDERED. 17 18 Dated: November 29, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28