(SS) Brunson v. Commissioner of Social Security ( 2022 )

UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 LAURA BRUNSON, No. 1:21-cv-01082-GSA 5 Plaintiff, 6 v. ORDER DIRECTING ENTRY OF 7 JUDGMENT IN FAVOR OF DEFENDANT KILOLO KIJAKAZI, acting COMMISSIONER OF SOCIAL SECURITY 8 Commissioner of Social Security, AND AGAINST PLAINTIFF 9 (Doc. 16, 18) Defendant. 10 11 I. Introduction 12 Plaintiff Laura Brunson (“Plaintiff”) seeks judicial review of a final decision of the 13 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 14 disability insurance benefits pursuant to Title II of the Social Security Act. The matter is before 15 the Court on the parties’ briefs which were submitted without oral argument to the United States 16 Magistrate Judge.1 Docs. 16, 18, 19. After reviewing the record the Court finds that substantial 17 evidence and applicable law support the ALJ’s decision. Plaintiff’s appeal is therefore denied. 18 II. Factual and Procedural Background2 19 On November 29, 2018 Plaintiff applied for disability insurance benefits alleging a 20 disability onset date of October 30, 2017. The Commissioner denied the application initially on 21 June 4, 2019 and on reconsideration on July 2, 2019. A hearing was held before an Administrative 22 Law Judge (the “ALJ”) on September 28, 2020. AR 130–159. On October 27, 2020 the ALJ issued 23 a decision denying Plaintiff’s application. AR 16–29. The Appeals Council denied review on June 24 11, 2021. AR 1–7. On July 12, 2021 Plaintiff filed a complaint in this Court. Doc. 1. 25 26 27 1 The parties consented to the jurisdiction of a United States Magistrate Judge. See Docs. 8 and 10. 2 The Court has reviewed the relevant portions of the administrative record including the medical, opinion and 28 testimonial evidence about which the parties are well informed, which will not be exhaustively summarized. Relevant portions will be referenced in the course of the analysis below when relevant to the parties’ arguments. III. The Disability Standard 2 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the 3 Commissioner denying a claimant disability benefits. “This court may set aside the 4 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 5 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 6 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 7 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 8 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 9 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 10 When performing this analysis, the court must “consider the entire record as a whole and 11 may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social 12 Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the 13 evidence could reasonably support two conclusions, the court “may not substitute its judgment for 14 that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 15 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless 16 error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the 17 ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 18 To qualify for benefits under the Social Security Act, a plaintiff must establish that 19 he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to 20 last for a continuous period of not less than twelve months. 42 U.S.C. § 21 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not 22 only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists 23 in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether 24 he would be hired if he applied for work. 25 42 U.S.C. §1382c(a)(3)(B). 26 To achieve uniformity in the decision-making process, the Commissioner has established a 27 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 28 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 2 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 3 gainful activity during the period of alleged disability, (2) whether the claimant had medically 4 determinable “severe impairments,” (3) whether these impairments meet or are medically 5 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 6 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant 7 work, and (5) whether the claimant had the ability to perform other jobs existing in significant 8 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears 9 the burden of proof at steps one through four, the burden shifts to the commissioner at step five to 10 prove that Plaintiff can perform other work in the national economy given her RFC, age, education 11 and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). 12 IV. The ALJ’s Decision 13 At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity since 14 her alleged disability onset date of October 30, 2017. AR 18. At step two the ALJ found that 15 Plaintiff had the following severe impairments: degenerative disc disease of the cervical spine; 16 degenerative disc disease and spondylosis of the lumbar spine; fibromyalgia; chronic fatigue 17 syndrome; post-herpatic polyneuropathy; vertigo (benign paroxysmal positional vertigo, or chronic 18 vertigo); obstructive sleep apnea; and, obesity. AR 18. The ALJ also determined at step two that 19 Plaintiff had the following non-severe impairments: breast mass; nicotine abuse; bronchitis; 20 recurrent herpes zoster; upper respiratory infection; skin lesion; tinea versicolor; nicotine 21 dependence; B-cell non-Hodgkin’s lymphoma of stomach; rash; gastroesophageal reflux disease 22 (“GERD”); colon polyps; pulmonary nodules, benign nevi; rosacea; intertrigo to the folds; flu-like 23 illness; anxiety disorder; other amnesia; dermatitis; herpes simplex virus; costochondritis; 24 urticarial; menopause; Ekbom syndrome; parasitophobia; scabies; insomnia; gastroenteritis; 25 serrated adenoma; gingivitis; multiple sclerosis3; allergic rhinitis, sciatica; pinguecula of the 26 3 It’s not clear where this extensive list of non-severe impairments came from, whether from Plaintiff’s alleged 27 diagnoses identified at the time of her application, from the medical record, or some combination of the two. It’s also not clear why the ALJ identified some of these conditions as non-severe impairments rather than omitting them entirely. 28 As to multiple sclerosis, for example, the ALJ noted later in the decision that, despite Plaintiff’s contention she had multiple sclerosis, that condition was specifically ruled out by her providers based on brain MRI. AR 23. bilateral eyes; astigmatism of the bilateral eyes; cataract of the bilateral eyes; and, presbyopia. AR 2 18. 3 At step three the ALJ found that Plaintiff did not have an impairment or combination thereof 4 that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, 5 Subpart P, Appendix 1. AR 21. 6 Prior to step four, the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and 7 concluded that Plaintiff had the RFC to perform a reduced range of sedentary work as defined in 8 20 C.F.R. 404.1567(a) with the following limitations: requires cane use for ambulation; can never 9 climb ladders, ropes or scaffolds; can occasionally climb ramps and stairs; occasionally balance, 10 stoop, kneel, crouch, or crawl; can tolerate no exposure to hazards, including unprotected heights; 11 and, can never operate heavy machinery. AR 21–26. 12 At step four the ALJ concluded that Plaintiff could perform her past relevant work as an 13 office manager; composite position of office manager and human resource assistant; accounting 14 15 tech; and the composite position of bookkeeper and secretary. AR 27–28. Accordingly, the ALJ 16 concluded that Plaintiff was not disabled at any time since her alleged disability onset date of 17 October 30, 2017. AR 28. 18 V. Issues Presented 19 Plaintiff’s central argument is stated as follows: “The issue lies that the residual functional 20 capacity provided simply does not fully encapsulate the extent to which Ms. Brunson is disabled.” 21 Br. at 4, Doc. 16. 22 A. Applicable Law 23 24 Before proceeding to step four, the ALJ must first determine the claimant’s residual 25 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2 26 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations” 27 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 28 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 2 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p. 3 In doing so, the ALJ must determine credibility, resolve conflicts in medical testimony and 4 5 resolve evidentiary ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995). “In 6 determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record such as 7 medical records, lay evidence and the effects of symptoms, including pain, that are reasonably 8 attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also 20 C.F.R. 9 § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical and other 10 evidence). “The ALJ can meet this burden by setting out a detailed and thorough summary of the 11 facts and conflicting evidence, stating his interpretation thereof, and making findings.” Magallanes 12 13 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th 14 Cir. 1986)). 15 2. Analysis 16 Plaintiff’s argument consists of 10 short paragraphs which collectively span about 2 to 3 17 pages in total length. These paragraphs will be quoted and analyzed in turn rather than attempting 18 to paraphrase the same.4 19 Paragraph 1 of Plaintiff’s argument states as follows: 20 21 In this case, the primary complaint is Trigeminal Neuralgia Pain. The pain is a cramping, burning sensation with painful tingling that feels like lightning bolt 22 sensations randomly on her right side, forehead, tops of and behind her eyes, cheek, lips and towards her chin. Her gums are also numb and painful feeling like she is 23 24 4 Defendant contends at the outset that Plaintiff’s brief is deficient in several respects, including non-compliance with the scheduling order’s directive that Plaintiff provide: 1) a short, separate statement of each of the plaintiff’s legal 25 claims 2) an argument separately addressing each claimed error supported by citation to legal authority and application thereof, and 3) citations to support all assertions of fact. Doc. 15 at 3. Indeed, Plaintiff does not separately break out 26 the legal claims, and the argument is essentially devoid of legal citations, factual citations, and application of law to fact. As Defendant also notes, Plaintiff’s argument is largely copied and pasted from the letter brief she submitted to 27 the appeal’s council (though there’s nothing inherently wrong with that approach). AR 256-59. Defendant contends these deficiencies alone warrant affirmance. In reply, the only explanation Plaintiff offers is that, “Plaintiff’s counsel 28 likes to keep things brief and simple.” Reply at 1, Doc. 19. In any event, it would be a harsh sanction to issue judgment against Plaintiff on that basis alone. The Court will therefore address the arguments as presented. recovering from a root canal surgery each day. Ms. Brunson spends a majority of 2 her day in bed or in a recliner due to the pain. She remains awake only a couple of hours a day. No limitations were addressed for these issues. 3 Br. at 5, Doc. 16. 4 5 Plaintiff appears to be summarizing her testimony concerning her neuralgia pain and it’s 6 limiting effects, which she contends the ALJ did not adequately address or incorporate into the 7 RFC. 8 An ALJ performs a two-step analysis to determine whether a claimant’s testimony regarding 9 subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 10 2014); Smolen, 80 F.3d at 1281; S.S.R 16-3p at 3. First, the claimant must produce objective 11 medical evidence of an impairment that could reasonably be expected to produce some degree of 12 13 the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80 F.3d at 1281–82. If the 14 claimant satisfies the first step and there is no evidence of malingering, the ALJ must “evaluate the 15 intensity and persistence of [the claimant’s] symptoms to determine the extent to which the 16 symptoms limit an individual’s ability to perform work-related activities.” S.S.R. 16-3p at 2. An 17 ALJ’s evaluation of a claimant’s testimony must be supported by specific, clear and convincing 18 reasons. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014); see also S.S.R. 16-3p at *10. 19 The ALJ offered a thorough summary of Plaintiff’s testimony concerning her trigeminal 20 21 neuralgia pain. AR 22. The ALJ found the impairment non-severe, noting that “there is little 22 documented evidence of this impairment, other than the claimant’s subjective allegations at the 23 hearing.” AR 19. Plaintiff does not acknowledge or dispute this assertion, nor does she cite any 24 objective evidence of the impairment or its limiting effects. Even Plaintiff’s description of the 25 testimony quoted above does not speak directly to limiting effects (such as exertional capacity, 26 lifting, sitting, standing, walking ability), but merely describes the nature and location of the pain 27 28 and the fact that she does spend the majority of the day in bed to cope with the pain. The ALJ, by contrast, offered a more thorough summary of the testimony regarding pain 2 severity than Plaintiff offers in her brief, including the allegations that the pain was 10/10 3 notwithstanding medication use, and was sufficiently severe that it undermined her focus and 4 5 caused her to physically stagger. AR 22. The ALJ noted however, the absence of any evidence of 6 Plaintiff presenting to providers in acute distress or distracted by severe pain. AR 19. Plaintiff 7 cites no counterexamples. Although subjective pain testimony “cannot be rejected on the sole 8 ground that it is not fully corroborated by objective medical evidence,” the medical evidence “is 9 still a relevant factor in determining the severity of claimant’s pain and its disabling effects.” 10 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); S.S.R. 16-3p (citing 20 C.F.R. § 11 404.1529(c)(2)). 12 13 Despite minimal objective evidence of trigeminal neuralgia or associated limitations, the 14 ALJ did note, “records indicate that her right-sided facial and scalp pain was secondary to 15 postherpetic neuralgia.” AR 19 (citing Ex. 10F, 84) (emphasis added). The ALJ cited records 16 concerning the same, including: 1) in November 2018 Plaintiff reported her persistent neuropathy 17 with feeling of swollen lip had diminished over time during the 4 year period since its onset (Ex. 18 5F at 4); 2) March 2019 continued reports of neuropathic pain on the right side of her face and scalp 19 (Ex. 10F at 84); 4) the same reports in May 2019; (Id. at 47); and, 5) she described the pain as a 20 21 constant dull burning pain level 5/10 (Id. at 68). 22 Ultimately the ALJ did find postherpetic neuralgia to be a severe impairment. Further, 23 despite the opinions of the agency’s reviewers at the initial and reconsideration levels that Plaintiff 24 could perform medium work, the ALJ found Plaintiff was limited to a reduced range of sedentary 25 work with various limitations. The ALJ included those limitations at least partially in consideration 26 of “her reports of pain throughout the record.” AR 25. 27 28 In sum, Plaintiff’s assertion that “no limitations were addressed for these issues” (i.e. her neuralgia pain) is not accurate. The ALJ’s discussion of the matter was much more thorough than 2 Plaintiff’s, including: 1) identifying the diagnosis that, according to the record, was causing the 3 neuropathic face and scalp pain (namely postherpetic neuralgia, not trigeminal neuralgia), 2) 4 5 thoroughly canvassing the objective and subjective evidence of the same with accompanying pin 6 citations, and 3) ultimately limiting plaintiff to a reduced range of sedentary work partially in 7 consideration of her continued reported pain throughout the record. The ALJ did not accept 8 Plaintiff’s testimony that the neuropathic pain in her face and scalp was a level 10/10 undermining 9 her ability to focus, causing her to physically stagger, and required bed rest 95% of the day. On 10 this point, the ALJ’s conclusion was supported by the records the ALJ cited. 11 Paragraphs 2, 3, and 4 of Plaintiff’s argument state as follows: 12 13 A Medical Source Statement was completed by Mary Collingnon on 8-28- 20 (30F) clearly stating that Brunson is unable to work. But in greater detail, 14 identifies the use of a cane for ambulation and balance, only occasional use of her left upper extremity and essentially none on the right, with significant sitting, 15 standing walking and lifting restrictions. She also concurs with the lying down requirement of the claimant. 16 A functional capacity report was prepared on 8-21-20. This report provides 17 great insight to her subjective and objective limitations. It also discusses the inability to complete much of the testing due to biomechanical issues, use of a cane and 18 psychological issues. The net result is that she cannot do much, and what she can do is significantly limited in duration. Further, the physical therapy records of Glinn 19 and Giorda discuss her falling on occasion. Yet no limitations were addressed for the issues of using a cane for 20 ambulation which would further impede the 2 hours of standing/walking per day not 21 to mention the requirement to allow for lying down throughout the day. 22 Br. at 5, Doc. 16. 23 Here, Plaintiff largely recites facts without accompanying argumentation or analysis. All 24 agree that NP-C Collingnon did submit a medical source statement opining Plaintiff had work 25 preclusive physical limitations in every respect.5 Ex. 30F, AR 2528-2535. The ALJ rejected that 26 27 5 For applications filed on or after March 27, 2017, the new regulations eliminate a hierarchy of medical opinions, and 28 provide that “[w]e will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” 20 C.F.R. § opinion for several reasons, including: 1) NP-C Collingnon completed the check-box RFC 2 questionnaire after their second visit which Plaintiff sought out because Kaiser would not complete 3 her paperwork; 2) the opinion was supported mostly with reference to Plaintiff’s subjective 4 5 complaints of severe pain rather than objective findings; and, 3) the opinion was inconsistent with 6 the longitudinal record demonstrating only mild objective findings and conservative care. AR 26. 7 As to the longitudinal record, the ALJ provided a thorough discussion of the same with 8 accompanying pin citations including, for example: 1) imaging showing only mild spinal 9 abnormalities; 2) in June through September of 2018 Plaintiff’s physical exams were unremarkable, 10 she reported exercising and meeting with a dietician and personal trainer; 3) November 2018 reports 11 that her neuralgia improved over time since it began 4 years earlier; 4) in May 2019 she had 5/5 12 13 strength in all extremities on exam and her pain was described as constant burning, dull pain level 14 5/10; and, 5) in September 2019 she reported she was mostly bed ridden and unable to complete 15 ADLs, but a physical therapy mobility examination the same month noted she had no functional 16 deficits requiring physical therapy expertise, but demonstrated only deconditioning that would be 17 addressed by a general exercise program. AR 23-24. 18 Plaintiff does not acknowledge or dispute this discussion, nor does she attempt to cite any 19 records that would support NP-C Collingnon’s opinion on any subject. Although the ALJ’s 20 21 discussion was not overwhelming persuasive, it was not facially deficient and it was well grounded 22 in the required regulatory factors of supportability and consistency.6 Further, a review of the 23 records the ALJ cited confirms they support the factual propositions for which they were cited. 24 25 404.1520c(a). Rather, when evaluating any medical opinion, the regulations provide that the ALJ will consider the 26 factors of supportability, consistency, treatment relationship, specialization, and other factors. 20 C.F.R. § 404.1520c(c). Supportability and consistency are the two most important factors and the agency will articulate how 27 the factors of supportability and consistency are considered. Id. 6 The ALJ also seemed to draw unnecessary attention to facts with no bearing on the ultimate issue of disability, such 28 as her attempt to self-prescribe hydroxychloroquine, her requests that providers correct errors in progress notes that she believed inaccurately capture their discussion, and other idiosyncrasies. This is the extent of the inquiry the Court will undertake on Plaintiff’s behalf absent any pertinent 2 discussion by Plaintiff. 3 Moreover, the gravaman of Plaintiff’s argument here is factually inaccurate. Plaintiff 4 5 contends “no limitations were addressed for the issues of using a cane for ambulation which would 6 further impede the 2 hours of standing/walking per day . . .” It is not clear why Plaintiff has this 7 impression. The ALJ did include the cane use requirement in the RFC. AR 21. The ALJ also 8 posed that limitation to the VE in the form of a hypothetical and the VE testified that cane use 9 would not undermine her ability to perform her past relevant work as an office manager and human 10 resource assistant, accounting tech, or the composite position of bookkeeper and secretary as 11 actually performed or as generally performed. AR 154. 12 13 Plaintiff also references a functional capacity report dated August 21, 2020 with no citation 14 to the same. The report Plaintiff appears to be referencing is exhibit 28F which is 33 pages in 15 length and was also prepared by NP-C Collingnon based on her examination of Plaintiff. Plaintiff 16 states that it provides “great insight” into her subjective and objective limitations, but the only 17 examples referenced are her inability to complete some of the functional tests, nonspecific 18 “psychological issues,” and use of a cane (which the ALJ already provided for in the RFC, as 19 mentioned above). Plaintiff identifies no findings from the examination that support NP-C 20 21 Collingnon’s opinion, nor would there be any reason to accept the findings from this one-time 22 examination at the expense of the longitudinal record. 23 Finally, Plaintiff references physical therapy records from Glinn and Giorda noting that she 24 fell on occasion. Though she offers no citation to the same, the exhibit in question is 27F and does 25 reference Plaintiff has had “a couple of falls,” though the statement appears to be based on 26 Plaintiff’s self-reported history of her present illness rather than an objective observation that she 27 28 fell during treatment. AR 2486. Moreover, it’s not clear what limitations Plaintiff believes logically flow from the fact that she fell on two occasions, other than the need for a cane which the 2 ALJ did include in the RFC. 3 Paragraph 5 of Plaintiff’s argument states as follows: 4 5 Additionally, she suffers from Anxiety Disorder and PTSD which is mentioned throughout the Kaiser medical records. She endured a sexual assault in the late 6 1980’s by her then fiancée. Her daughter was then killed in a tragic car accident in 2015. This depression also limits her functionality. No limitations were addressed 7 for these mental impairments and limitations. 8 Br. at 5-6 (emphasis added) 9 At step two the ALJ did acknowledge the mental impairments of anxiety disorder and PTSD 10 as well as mild cognitive impairment, other amnesia, and depression. AR 19. The ALJ then 11 summarized the records concerning Plaintiff’s mental health including the largely benign objective 12 13 findings on mental status examination. AR 19. The ALJ then performed the analysis for evaluation 14 of mental impairments as set forth at 20 C.F.R. § 404.1520a, and considered the four broad 15 categories of mental functioning. AR 20. The ALJ found Plaintiff had no more than mild 16 limitations in each area, and that her mental impairments were therefore non-severe. 17 In so concluding, the ALJ underscored: 1) examinations noting intact memory, despite 18 subjective complaints of memory loss (Ex. 6F, 7; 17F, 213); 2) evidence of social isolation, “but 19 general lack of abnormal [sic] abnormalities and her cooperative behavior (Ex. 17F at 212–213); 20 21 3) normal concentration on examination despite some reports of social anxiety which could limit 22 Plaintiff mildly in the area of concentration (Ex. 16F, 442; 17F, 213; 23F, 397); and, 4) Plaintiff’s 23 reports that she handle stress and crisis well though she did report significant anxiety after the 24 passing of a loved one (Ex. (10F, 1; 16F, 442; 23F, 397). 25 Although the ALJ’s reasoning for finding only mild mental limitations was not particularly 26 thorough or compelling (“general lack of abnormal abnormalities”), it was not facially 27 28 unreasonable. Moreover, a review of the ALJ’s pin citations confirms that those records do illustrate the factual propositions for which they were cited. However, Plaintiff did not attempt to 2 identify any counterexamples in the record of abnormal mental status examination findings (which 3 are almost assuredly present to some extent in a 2,500 page administrative record). Plaintiff’s 4 5 assertion that “no limitations were addressed for these mental impairments and limitations” is 6 factually incorrect. The ALJ considered her mental impairments. 7 Paragraph 6 of Plaintiff’s argument reads as follows: 8 Despite this record, the Court found the reporting of Ms. Collingnon unpersuasive 9 as well as the prior State Agency findings. It is unclear which medical evidence the Court does find persuasive in rendering its decision. 10 Br. at 6. 11 Plaintiff similarly argued in her reply that the ALJ did not buttress her RFC conclusions 12 13 with reference to any medical opinion, but rather rejected the opinions of the state agency reviewers 14 and rejected the opinion of NP-C Collingnon. Having decided those opinions were unpersuasive, 15 Plaintiff contends the ALJ had a duty to further develop the record with consultative examination 16 and associated opinion rather than constructing an RFC herself. Reply at 1-2, Doc. 19. 17 This argument, although a common one, is predicated on a misunderstanding of the 18 applicable law. The ALJ’s task in formulating the RFC is not simply to choose between conflicting 19 opinions in the record. Nor must the ALJ obtain a consultative opinion if he/she does not agree 20 21 with the existing opinions in the record. The RFC need not mirror any particular opinion; it is an 22 assessment formulated by the ALJ based on all relevant evidence. See 20 C.F.R. §§ 404.1545(a)(3). 23 The state agency reviewing Drs. Tayloe and Khong opined that Plaintiff was capable of 24 medium work, which the ALJ found unpersuasive given evidence of cervical and lumbar spine 25 abnormalities (albeit mild ones), persistent reports of substantial neuralgia pain, and high BMI. AR 26 25. The ALJ also was unpersuaded by NP-C Collingnon’s opinion that Plaintiff was capable of 27 28 less than sedentary exertional work with work preclusive limitations in nearly every respect (such as the inability to lift even 1 pound), despite no comparable examination or diagnostic findings in 2 the longitudinal record. AR 26. 3 The opinions of the agency doctors on the one hand, and NP-C Collingnon on the other, 4 5 were at opposite ends of the spectrum. However, this does not suggest the record was ambiguous 6 or that a consultative examination was necessary. It suggests the opinions were extreme and a more 7 reasonable conclusion would lie somewhere between the two. Thus the ALJ did not commit an 8 error by constructing the RFC herself rather than ordering a consultative examination. It is also 9 worth noting that the RFC the ALJ constructed (reduced range of sedentary work with postural 10 restrictions and cane use) was much closer to NP-C Collingnon’s opinion than the opinion of the 11 state agency physicians (medium work). Paragraph 6 of Plaintiff’s argument identifies no error. 12 13 Paragraph 7 of Plaintiff’s complaint reads as follows: 14 Subsequently, claimant has continued to treat and has continued to update file with records that are further consistent with her complaints. These include a 12- 15 3-20 report from the Comprehensive Blood and Cancer Center noting chronic incontinence, chronic joint pain in her upper back and right shoulder as well as 16 continued focal pain due to her trigeminal neuralgia with decreased balance, 17 memory and fear of falling. The updates also include more recent reporting of Ms. Collingnon noting a history of fibromyalgia now causing increasing pain in the right 18 arm making its use difficult. She has difficulty with showering and other activities of daily living (10-29-20 report). On 12-8-20 she further notes that claimant does 19 not maintain the stamina to work and is suffering chronic fatigue. 20 Br. at 6. 21 Plaintiff offers three examples of subsequent developments warranting consideration, dated 22 December 3, 2020, December 8, 2020, and October 29, 2020. These records post-date the ALJ’s 23 decision here which was issued October 27, 2020. The ALJ’s decision only applies to the period 24 25 between the alleged disability onset date of October 30, 2017 and the date of the ALJ’s decision on 26 October 27, 2020. See AR 28 (“The claimant has not been under a disability, as defined in the 27 Social Security Act, from October 30, 2017, through the date of this decision.” (citing 20 CFR 28 404.1520(f)). The appropriate context for consideration of the additional evidence would be new 2 application for disability benefits. The Appeals Council told Plaintiff the same thing when they 3 declined her request to have that same evidence exhibited and added to the administrative record. 4 5 AR 2. (“The Administrative Law Judge decided your case through October 27, 2020. This 6 additional evidence does not relate to the period at issue. Therefore, it does not affect the decision 7 about whether you were disabled beginning on or before October 27, 2020. If you want us to 8 consider whether you were disabled after October 27, 2020, you need to apply again.”). 9 Paragraph 8 of Plaintiff’s argument reads as follows: 10 The Decision in this case seems to gloss over the medical records supporting the 11 existence of trigeminal neuralgia, and therefore finds it not a severe impairment when claimant testified that this is the more limiting of her issues because it is not 12 mentioned much in the medical records. Yet this is mentioned in the records of Dr. 13 Alexan however referred to as post-herpetic neuralgia. Regardless of the proper terminology or diagnosis, the condition is verified and the interference with her 14 ability to maintain memory focus and balance is a significant impairment that, in combination with the sedentary residual capacity prevents any SGA employment. 15 (see Hypos 3, 4, 5, 6 and 7). Further, Listings 11.14 and 13.05 should have been more fully considered. Again, no limitations were addressed for the issues outside 16 of those included by the existing orthopedic disabilities. 17 As Plaintiff acknowledges, the relevant records referred to the condition as post-herpetic 18 neuralgia. The ALJ did not gloss over those records, but discussed the same as mentioned above, 19 including the following observations: 1) in November 2018 Plaintiff reported her persistent 20 21 neuropathy with feeling of swollen lip had diminished over time during the 4 year period since its 22 onset (Ex. 5F at 4); 2) the neuropathy was secondary to herpes simplex (10F at 79); 3) March 2019 23 continued reports of neuropathic pain on the right side of her face and scalp (Ex. 10F at 84); 4) the 24 same reports in May 2019; (Id. at 47); and, 5) she described the pain as a constant dull burning 25 pain level 5/10 (Id. at 68). The ALJ ultimately found that these records did not support Plaintiff’s 26 testimony that her pain was a 10/10 undermining her concentration and memory and requiring bed 27 28 rest 95% of the day. AR 22. That finding was supported. Plaintiff references additional records from Dr. Alexan discussing the same condition, again 2 with no citations to the same. The transcript index has two references to Dr. Alexan at exhibit 3 Exhibit 6F and 13F. Exhibit 6F contains 3 pages from a December 21, 2018 visit with Dr. Alexan.7 4 5 Neither did the ALJ gloss over this record, she simply discussed it in a different section addressing 6 Plaintiff’s alleged memory problems. AR 19. Plaintiff is correct that this record does reflect a 7 diagnosis of postherpetic neuralgia. AR 546. However, it does not substantiate Plaintiff’s 8 contention that post-herpetic neuralgia, or any other condition, interferes with her memory, focus, 9 and balance. As the ALJ emphasized, under assessment Dr. Alexan noted, “subjective memory 10 loss- doubt neurodegenerative disease, she remains functional.” AR 546. Under mental status Dr. 11 Alexan noted, “The patient is able to concentrate normally . . . memory is intact.” Id. As to balance, 12 13 Dr. Alexan noted, “denies cold extremities or difficulty in walking,” and her gait was noted as 14 “narrow based with no ataxia noted.” Id. 15 Finally, Plaintiff asserts without elaboration that “Listings 11.14 and 13.05 should have 16 been more fully considered.” But Plaintiff neither discusses the requirements of either listing nor 17 attempts to apply them. This assertion however does not address Plaintiff’s burden to identify 18 harmful error in the ALJ’s decision. See Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 19 (9th Cir. 1994) (“We will not manufacture arguments for an appellant, and a bare assertion does 20 21 not preserve a claim, particularly when, as here, a host of other issues are presented for review”) 22 (citation omitted). 23 Paragraph 10 of Plaintiff’s argument reads as follows: 24 On 7-30-20 this office specifically requested a CE so that the Court could better 25 understand the physical limitations but that was not afforded to the claimant. Hence why the Functional Capacity Report was obtained. In this case, the Court8 explicitly 26 27 7 Exhibit 13F contains no novel information. It is a Summary of Care at Dr. Alexan’s office which lists the only encounter as the December 21, 2018 encounter depicted in Exhibit 6F and summarizes the results of that encounter. 28 8 Plaintiff is referring to the ALJ here as “the Court.” Which made sense in the context of her letter to the Appeals Council because, at that stage of the proceedings, the ALJ was “the Court.” Plaintiff then copied and pasted the states that he does not find the State Agency doctors persuasive and gives that 2 rationale, but then says that they are. 3 Br. at 7. 4 The argument regarding the denied request for a consultative examination was addressed in 5 part above. Plaintiff’s reply brief contains the only factual assertion in support of that argument: 6 “Plaintiff’s request for a consultative examination was premised on the fact that while there was an 7 abundance of treatment notes, there was very little opinion evidence.” Reply at 2, Doc. 19. Plaintiff 8 9 therefore concludes that the ALJ had a duty to further dev elop the record with a consultative 10 examination. As set forth below, this argument also fails. 11 The ALJ’s duty to further develop the record is triggered where the evidence is ambiguous 12 or inadequate to allow for proper evaluation. Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 13 2001); Tonapetyan, 242 F.3d at 1150. A specific finding of ambiguity or inadequacy in the record 14 is not required to trigger the necessity to further develop the record where the record itself 15 establishes the ambiguity or inadequacy. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011); 16 17 Garcia v. Comm’r of Soc. Sec., No. 1:19-CV-00545-SAB, 2020 WL 1904826, at *13 (E.D. Cal. 18 Apr. 17, 2020). 19 Plaintiff neither discusses the legal standard nor attempts to apply it. The quantity of 20 opinions in the record does not speak to the presence or absence of evidentiary ambiguity or 21 inadequacy. There is simply nothing anomalous about the number of opinions here. The agency’s 22 disability determination service (DDS) physicians Tayloe and Khong issue opinions at the initial 23 and reconsideration levels, as they usually do. Plaintiff’s treating provider NP-C Collingnon also 24 25 submitted an opinion, as is often the case. In this case the agency did not order a consultative 26 examination. The regulations provide that the agency may obtain a consultative examination to 27 28 content of her letter to the Appeals Council in her motion for summary judgment here. resolve evidentiary ambiguity or insufficiency, not that an ALJ must do so in every case. See 20 2 C.F.R. § 404.1519; Meadows v. Saul, 807 F. App’x 643, 647 (9th Cir. 2020) (unpublished). 3 Plaintiff advances no argument as to why the record was ambiguous or inadequate so as to require 4 5 a consultative examination. 6 Plaintiff then quotes the ALJ’s discussion of the opinion evidence and notes an 7 inconsistency in that discussion. The ALJ opened by stating, “the prior administrative findings of 8 Dr. D. Tayloe, M.D., and Dr. A. Khong, M.D. are not persuasive.” AR 25 (emphasis added) The 9 ALJ then proceeded to critique those prior administrative findings as inconsistent with the medical 10 evidence and Plaintiff’s consistent reports of pain. Id. The ALJ concludes the paragraph by stating, 11 “In sum, the prior administrative findings of Dr. Tayloe and Dr. Khong are persuasive.” Id. 12 13 (emphasis added). This is clearly a typographical error, as the apparent intent was to state that the 14 prior administrative findings were not persuasive, as the ALJ stated at the beginning of the 15 paragraph, consistent with the ALJ’s rejection of the medium RFC proposed by the two agency 16 doctors in favor of a reduced range of sedentary work. The ALJ’s typo was not a harmful error 17 because “it is clear from the record that the ALJ’s error was inconsequential to the ultimate non 18 disability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 19 In conclusion, Plaintiff identifies no harmful error in the ALJ’s decision. 20 21 VI. Conclusion and Order 22 For the reasons stated above, the Court finds that substantial evidence and applicable law 23 support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, Plaintiff’s appeal from 24 the administrative decision of the Commissioner of Social Security is denied. The Clerk of Court 25 is directed to enter judgment in favor of Defendant Kilolo Kijakazi, acting Commissioner of Social 26 Security, and against Plaintiff Laura Brunson. 27 28 IT IS SO ORDERED. 2 Dated: December 5, 2022 /s/ Gary S. Austin 3 UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28