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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE RAIMON DEYON, Case No. 1:20-cv-01532-SKO 12 Plaintiff, 13 v. ORDER ON PLAINTIFF’S SOCIAL 14 SECURITY COMPLAINT KILOLO KIJAKAZI, 15 Acting Commissioner of Social Security,1 16 Defendant. (Doc. 1) 17 _____________________________________/ 18 19 I. INTRODUCTION 20 21 Plaintiff Andre Raimon Deyon (“Plaintiff”) seeks judicial review of a final decision of the 22 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his application 23 for disability insurance benefits (“DIB”) under the Social Security Act (the “Act”). (Doc. 1.) The 24 matter is currently before the Court on the parties’ briefs, which were submitted, without oral 25 argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.2 26 1 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 28 of the Commissioner shall, in [their] official capacity, be the proper defendant”). 1 2 On October 3, 2017, Plaintiff protectively applied for DIB payments, alleging he became 3 disabled on March 28, 2014, due to “bulging disk in lower back, protruding and herniated disks up 4 the spine, chronic pain, [and] high blood pressure.” (Administrative Record (“AR”) 22, 80, 81, 82, 5 92, 93, 206, 213, 216, 235.) Plaintiff was born on August 15, 1977, and was 36 years old on the 6 alleged disability onset date. (AR 27, 80, 92, 213, 216, 235.) Plaintiff has a high school education 7 and can communicate in English. (AR 27, 51, 205, 207.) 8 A. Relevant Evidence of Record3 9 1. Medical Evidence 10 Plaintiff reported injuring his back lifting boxes in December 2013. (AR 313, 397, 633, 11 936.) In September 2014, Plaintiff was assessed with a lumbar disc protrusion at L5-S1. (AR 528.) 12 An MRI performed in October 2014 showed an 8mm left paracentral disc protrusion displacing 13 and compressing the traversing left S1 nerve root. (AR 523–24, 528.) In December 2014, Plaintiff 14 underwent a microdiscectomy at L4-S1. (AR 525–27.) 15 In June 2015, Plaintiff presented for a follow up appointment following his back surgery. 16 (AR 461–65.) He reported that he was “better since [surgery],” and a pain level at 3–4 out of 10. 17 (AR 461.) A physical examination showed some limitation in range of motion in Plaintiff’s lumbar 18 spine, with a negative straight leg raising test, normal (5/5) motor strength, and normal sensation. 19 (AR 461–62.) 20 Plaintiff presented for another follow up in July 2015, when he complained of “constant 21 aching” pain in his back that increases with bending and lifting. (AR 456–460.) He rated his pain 22 level as a 2–3 out of 10. (AR 456.) On physical examination, Plaintiff’s thoracolumbar range of 23 motion was normal, with no focal area of tenderness on palpation to the lumbar spine. (AR 529.) 24 No muscle spasms or nodularities were noted. (AR 529.) He also had normal reflexes, full 25 strength, negative straight leg raising test, and normal gait. (AR 529–30.) Orthopedist Richard E. 26 Nussbaum, M.D., deemed Plaintiff “permanent and stationary/maximally medically improved.” 27 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 (AR 530.) He observed that “[t]here is occasional minimal to slight back pain in the activities of 2 daily living, becoming intermittently slight to moderate.” (AR 531.) 3 In February 2017, Plaintiff complained of moderate back pain. (AR 278.) He reported that 4 his sciatica “disappeared after surgery,” and was assessed with “[c]hronic bilateral low back pain 5 without sciatica.” (AR 280, 282.) Plaintiff’s physical examination was normal, with normal 6 sensation. (AR 280.) An x-ray taken that month showed “S-shaped scoliosis of the thoracolumbar 7 spine” and “[s]ignificant disc space narrowing” at L5-S1 level. (AR 309.) 8 Plaintiff reported a pain severity level of “7” in June 2017, and described the problem as 9 “fluctuating” with no radiation of pain. (AR 267.) A physical examination showed “severely 10 reduced” range of motion in his lumbar spine and a muscle spasm, but was otherwise normal, with 11 negative straight leg test, no radiculopathy, and grossly intact cranial nerves. (AR 270.) 12 An MRI performed in September 2017 showed a left laminotomy defect at L5; degenerative 13 change; bulging disc and facet hypertrophy; mild canal, moderate left, and mild to moderate right- 14 sided foraminal stenosis; and degenerative changes in the sacroiliac joints bilaterally. (AR 963.) 15 In October 2017, Plaintiff reported seeing a pain specialist and planned to get injections for his 16 “skyrocketing” pain. (AR 262–66.) A physical exam showed moderately reduced range of motion 17 in the right side when in a “forward fold position” and a muscle spasm. (AR 265.) Plaintiff was 18 assessed with “[c]hronic bilateral low back pain without sciatica” and “[b]ack muscle spasm.” (AR 19 266.) Plaintiff underwent steroid injections in his lumbar spine in November and December 2017. 20 (AR 373–74, 422, 545–56.) 21 In April 2018, Plaintiff reported “[o]ccasionally [doing] door-to-door work as part of 22 Jehovah’s Witness.” (AR 738.) Plaintiff presented for pain management treatment in July 2018, 23 complaining of lower back pain rated “8/10.” (AR 767–78.) He stated that he walks in his house, 24 and can walk “about a street for door to door.” (AR 769.) On physical examination, Plaintiff’s 25 gait was normal, with heel walking noted as “unstable” because of back pain. (AR 771.) Limited 26 range of motion was noted in Plaintiff’s back due to pain. (AR 771.) His motor strength was 27 normal, no asymmetry or atrophy noted, and his sensation was intact. (AR 771.) Straight leg 28 raising test was negative. (AR 771.) 1 In January 2019, Plaintiff’s back pain was “back to base line.” (AR 781–91.) Plaintiff ‘s 2 gait and heel walking were normal, and limited range of motion in his low back “mainly while 3 twisting” was noted. (AR 783.) He showed normal sensation and neurologic function. (AR 783– 4 84.) It was noted that Plaintiff is “[f]unctionally better in how he walks and how much tenderness 5 he has.” (AR 784.) 6 In February 2019, Plaintiff reported normal activity level and that his “treatment plan allows 7 [him] to remain functional,” with no side effects. (AR 793.) An x-ray of Plaintiff’s lumbar spine 8 performed in June 2019 showed “S-shaped scoliosis of the spine” (AR 799.) Plaintiff underwent 9 medical branch blocks in his lumbar spine in July and November 2019. (AR 827–55, 990–1014.) 10 In November 2019, he again reported his “treatment plan allows [him] to remain functional,” his 11 activity level is normal, that his pain is “significantly better,” and he is “able to be more functional 12 with the [medical branch block] injection.” (AR 961.) Plaintiff denied numbness, tingling, or 13 weakness. (AR 961.) 14 2. Opinion Evidence 15 In finding Plaintiff “permanent and stationary/maximally medically improved” in July 16 2015, Dr. Nussbaum found Plaintiff was precluded from “heaving lifting and repeated bending and 17 stooping,” in that he has “lost approximately half of the pre-injury capacity for lifting, bending, 18 and stooping.” (AR 531.) 19 In December 2017, M. Bijpuria, M.D., a state agency physician, reviewed the record and 20 assessed Plaintiff’s residual functional capacity (RFC).4 (AR 87–88.) Dr. Bijpuria found that 21 Plaintiff could occasionally lift and/or carry 20 pounds and frequently 10 pounds; stand and/or walk 22 for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; 23 perform unlimited pushing and pulling, subject to the lift-and-carry restrictions; occasionally climb 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 ramps and stairs, balance, stoop, kneel, crouch, and crawl; never climb ladders, ropes, and 2 scaffolds; and avoid concentrated exposure to hazards. (AR 87–88.) Upon reconsideration in 3 March 2018, another state agency physician, M. Ormsby, M.D., reviewed the record and found that 4 Plaintiff could occasionally lift and/or carry 50 pounds and frequently 25 pounds; stand and/or walk 5 for about six hours in an eight-hour workday; sit for about six hours in an eight-hour workday; 6 occasionally perform bilateral extremity pushing and pulling; occasionally climb ramps and stairs, 7 balance, stoop, kneel, crouch, and crawl; never climb ladders, ropes, and scaffolds; and avoid 8 concentrated exposure to extreme cold, vibration, and hazards. (AR 97–99.) 9 B. Administrative Proceedings 10 The Commissioner denied Plaintiff’s application for benefits initially on December 20, 11 2017, and again on reconsideration on March 9, 2018. (AR 103–106, 113–18.) Consequently, 12 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 121–36.) 13 On January 8, 2019, Plaintiff appeared with counsel and testified before an ALJ as to his 14 alleged disabling conditions. (AR 46–72.) A vocational expert (“VE”) also testified at the 15 hearing. (AR 72–78.) 16 1. Plaintiff’s Testimony 17 At the hearing, Plaintiff testified he remains unable to work due to lower back pain. (AR 18 54.) He stated that the severity of his pain is a “9” on a scale of 1 to 10, and it prevents him from 19 doing any work. (AR 64.) Plaintiff testified he continued to have back pain after his surgery in 20 2014, and the pain worsened in 2016 and 2017. (AR 54, 63, 65.) He stated that he needs to be 21 very “methodical” when he moves or does anything and is concerned that if he moves “wrong,” 22 he will aggravate his condition. (AR 58–59.) According to Plaintiff, if he bends for too long, he 23 will feel a “pull or a twinge” and then have “immediate back pain.” (AR 59.) If he overdoes 24 things, he will be “down” for a week with back pain. (AR 64.) 25 Plaintiff drives to pick his daughter up from school every day. (AR 56.) According to 26 Plaintiff, he gives public talks as a Jehovah’s Witness and has spent four hours typing his speeches 27 on his laptop. (AR 56.) He would also “sometimes” do door to door witnessing activities for 28 about an hour, although he had not done that in some time. (AR 56–57.) He stated he can only 1 stand or sit for an hour at a time. (AR 69, 70.) 2 2. Vocational Expert’s Testimony 3 The VE testified that Plaintiff had past relevant work as a warehouse worker (“stores 4 laborer”), Dictionary of Operational Titles (“DOT”) code 922.687-058, with a medium exertional 5 level and a specific vocational preparation (SVP)5 of 2. (AR 73.) The ALJ asked the VE to 6 consider a person of Plaintiff’s age and education, and work experience, and that this person could 7 perform light work; occasional postural activities; no climbing of ladders, ropes, and scaffolds; 8 occasional use of bilateral foot controls; and must avoid concentrated exposure to extreme cold, 9 vibration, unprotected heights, and dangerous machines. (AR 73.) The VE testified that such a 10 person could not perform Plaintiff’s past relevant work, but they could perform other, light 11 positions under the DOT in the national economy, such as a small products (bench) assembler, 12 DOT code 706.684-022; a cashier II, DOT code 211.462-010; and a fast-food worker, DOT Code 13 311.472-010. (AR 74.) 14 In a second hypothetical, the VE was asked by the ALJ to consider the same person as in 15 the first hypothetical, but with sedentary exertional capacity instead of light. (AR 74.) The VE 16 testified that no prior work would be available, but that such a person could perform other, 17 sedentary positions under the DOT in the national economy, such as telephone solicitor, DOT 18 code 299.357-014 and SVP 2; a cashier II, DOT code 211.462-010 and SVP 2; and a charge 19 account clerk, DOT Code 205.367-014 and SVP 2. (AR 74–75.) In third and fourth 20 hypotheticals, the ALJ asked the VE to consider the person presented in the second hypothetical, 21 but who would be absent one day out of the workweek and off task 15% of the workday, 22 respectively. (AR 75–76.) The VE responded there would be no work such a person could 23 perform. (AR 76–77.) 24 In a fifth hypothetical, Plaintiff’s counsel asked the VE to consider the same person as in 25 the second hypothetical, but who could only stand and walk three hours in an eight-hour day and 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 require four to five unscheduled breaks of 10 to 15 minutes in duration a day. (AR 77.) The VE 2 testified there was no work such a person could perform. (AR 77–78.) 3 C. The ALJ’s Decision 4 In a decision dated March 3, 2020, the ALJ found that Plaintiff was not disabled. (AR 20– 5 38.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 404.1520. (AR 6 22–29.) The ALJ determined that Plaintiff had not engaged in substantial gainful activity since 7 March 28, 2014, the alleged onset date (step one). (AR 22.) At step two, the ALJ found the 8 following impairment severe: degenerative disc disease and scoliosis. (AR 22–24.) Plaintiff did 9 not have an impairment or combination of impairments that met or medically equaled one of the 10 listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 11 24.) 12 The ALJ then assessed Plaintiff’s RFC and applied the RFC assessment at steps four and 13 five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, we assess your 14 residual functional capacity . . . . We use this residual functional capacity assessment at both step 15 four and step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff 16 had the RFC: 17 to perform light work as defined in 20 CFR [§] 404.1567(b) except he can only occasionally operate foot controls bilaterally; can never climb ladders, ropes, or 18 scaffolds; can only occasionally climb ramps/stairs, balance, stoop, kneel, crouch, or crawl; and must avoid concentrated exposure to extreme cold, vibration, and 19 hazards (i.e., unprotected heights, dangerous machines). 20 (AR 24–27.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 21 expected to cause the alleged symptoms[,]” the ALJ rejected Plaintiff’s subjective testimony as 22 “not entirely consistent with the medical evidence and other evidence in the record . . . .” (AR 25.) 23 The ALJ determined that Plaintiff was unable to perform his past relevant work (step 4), 24 but was not disabled because, given his RFC, he could perform a significant number of other jobs 25 in the local and national economies, specifically small products assembler, cashier, and fast-food 26 worker (step 5). (AR 27–28.) 27 Plaintiff sought review of this decision before the Appeals Council, which denied review 28 on August 26, 2020. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 1 Commissioner. 20 C.F.R. § 404.981. 2 III. LEGAL STANDARD 3 A. Applicable Law 4 An individual is considered “disabled” for purposes of disability benefits if they are unable 5 “to engage in any substantial gainful activity by reason of any medically determinable physical or 6 mental impairment which can be expected to result in death or which has lasted or can be expected 7 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 8 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 9 impairment or impairments are of such severity that [they are] not only unable to do [their] previous 10 work but cannot, considering [their] age, education, and work experience, engage in any other kind 11 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 12 “The Social Security Regulations set out a five-step sequential process for determining 13 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 14 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 15 Ninth Circuit has provided the following description of the sequential evaluation analysis: 16 In step one, the ALJ determines whether a claimant is currently engaged in 17 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 18 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 19 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 20 not, the ALJ proceeds to step four and assesses whether the claimant is capable of 21 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 22 perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 23 24 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) (providing 25 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 26 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent 27 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 28 “The claimant carries the initial burden of proving a disability in steps one through four of 1 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 2 “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to 3 the Commissioner in step five to show that the claimant can perform other substantial gainful work.” 4 Id. (citing Swenson, 876 F.2d at 687). 5 B. Scope of Review 6 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 7 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 8 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is 9 ‘more than a mere scintilla,’” and means only “such relevant evidence as a reasonable mind might 10 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) 11 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). See also Ford v. Saul, 950 F.3d 12 1141, 1154 (9th Cir. 2020). 13 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 14 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 15 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 16 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when 17 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 18 F.3d at 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may 19 not substitute its judgment for that of the Commissioner.” (citations omitted)). 20 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 21 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 22 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 23 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 24 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 25 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 26 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 27 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 28 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 1 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 3 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 4 IV. DISCUSSION 5 Plaintiff contends there is no substantial evidence to support the ALJ’s RFC assessment 6 because the ALJ “failed to obtain an updated opinion regarding Plaintiff’s functionality.” (Doc. 18 7 at 13–17; see also Doc. 22 at 1–3.) Plaintiff asserts that the assessments of his limitations by the 8 State agency non-examining medical consultants were “stale” because they did not account for 9 subsequent medical records. (Doc. 18 at 13–15.) Plaintiff submits the ALJ should have “obtain[ed] 10 a medical opinion that could interpret Plaintiff’s most recent raw medical data into functional 11 limitations.” (Id. at 13.) Instead, the ALJ relied on their lay interpretation of the subsequent 12 medical evidence and erred in failing to develop the record further, requiring remand for further 13 administrative proceedings. (See Doc. 18 at 13–14; Doc. 22 at 3.) Plaintiff further asserts the ALJ 14 erred in discounting his subjective symptom testimony. (See Doc. 18 at 17–21; Doc. 22 at 3–5.) 15 The Commissioner responds that the ALJ was under no duty to develop the record in this 16 case and their RFC assessment was based on substantial evidence. (Doc. 21 at 18–23.) The 17 Commissioner further contends that the ALJ properly evaluated Plaintiff’s subjective symptom 18 statements. (Id. at 23–27.) 19 The Court addresses the parties’ contentions below, and finds that reversal is not warranted. 20 A. Plaintiff’s Challenge to the Record Does Not Constitute Reversible Error 21 1. The ALJ Had No Duty to Develop the Record 22 “An ALJ’s duty to develop the record further is triggered only when there is ambiguous 23 evidence or when the record is inadequate to allow for proper evaluation of the evidence.” See 24 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Here, Plaintiff has not demonstrated 25 that the record was ambiguous or inadequate to allow for proper evaluation. 26 The ALJ summarized medical evidence spanning 2013 through 2019 and found with the 27 support of the record that Plaintiff had not established he was disabled. (AR 22–23, 25–27.) The 28 record contained what appears to be Plaintiff’s complete treatment records that supported the ALJ’s 1 findings and did not present an ambiguity or inadequacy. Notably, Plaintiff failed to submit any 2 medical opinions from a treating or examining physician to support his claimed functional 3 limitations. Because it is Plaintiff’s burden to present evidence of disability, the mere absence of 4 a report from a treating or examining physician does not give rise to a duty to develop the record; 5 instead, that duty is triggered only where there is an inadequacy or ambiguity. Bayliss v. Barnhart, 6 427 F.3d 1211, 1217 (9th Cir. 2005); Alvarez v. Astrue, No. 1:08-cv-01205-SMS, 2009 WL 7 2500492, at *10 (E.D. Cal. Aug. 14, 2009) (finding absence of report from treating physician did 8 not give rise to a duty to develop the record where record contained opinions of the state agency 9 physicians and plaintiff’s complete treatment records); see also 42 U.S.C. § 423(d)(5)(A) (“An 10 individual shall not be considered to be under a disability unless [they] furnish[] such medical and 11 other evidence of the existence thereof as the Commissioner of Social Security may require.”); 20 12 C.F.R. § 404.1512(a) (“[Y]ou have to prove to us that you are . . . disabled . . . .”). 13 Contrary to Plaintiff’s assertion, an updated opinion is not required simply because 14 additional medical evidence is received after the state agency physicians had already reviewed 15 Plaintiff’s records. See de Hoog v. Comm’r of Soc. Sec., No. 2:13–CV–0235–KJN, 2014 WL 16 3687499, at *7 (E.D. Cal. July 23, 2014). Such an occurrence is quite common. See id. (explaining 17 that “[i]n virtually every case further evidence is received after the state agency physicians render 18 their assessments—sometimes additional evidence and records are even received after the ALJ 19 hearing. For that very reason, the ALJ is tasked with considering the evidence in the record as a 20 whole.”). This is also not a case where subsequent “objective evidence suggest[ed] a condition 21 that could have a material impact on the disability decision.” Molina v. Berryhill, No. 2:17-CV- 22 01991 CKD, 2018 WL 6421287, at *3 (E.D. Cal. Dec. 6, 2018). Cf. Goodman v. Berryhill, No. 23 2:17-CV-01228 CKD, 2019 WL 79016, at *5 (E.D. Cal. Jan. 2, 2019) (subsequent medical 24 evidence giving rise to duty to develop the record documented “significant medical events relevant 25 to plaintiff’s physical condition.”) By contrast, the records Plaintiff directs the Court to review 26 show relatively normal findings that undermine Plaintiff’s complaints of pain, are followed by 27 documented improvement, and/or, to some extent, are based on subjective complaints like those 28 discredited by the ALJ. For example, Plaintiff cites to a medical record in which he reports 1 “skyrocketing” pain in October 2017 (AR 262) and physical examination results from January, 2 March, and July 2018 showing limited range of motion in his lumbar spine (AR 404, 719). Some 3 of these same records, however, observe that the “severity of [Plaintiff’s] pain is out of proportion 4 of the MRI results” (AR 402), which are described as “mild” (AR 720). More importantly, this 5 and subsequent objective medical evidence from 2018 and 2019 shows normal gait and heel 6 walking, normal sensation and neurologic function, and normal motor strength. (AR 771, 783– 7 84.) Medical records from January 2019 indicate that Plaintiff is “[f]unctionally better in how he 8 walks and how much tenderness he has.” (AR 784.) Indeed, in some of the records from 2019 9 cited by Plaintiff in his briefing, Plaintiff himself states his “treatment plan allows [him] to remain 10 functional,” his activity level is normal, and his pain is “significantly better.” (AR 793, 961.) 11 Plaintiff’s testimony demonstrates he is able to sit for four hours, walk for an hour, and drive to 12 pick up his daughter daily. (AR 56.) 13 In sum, none of the evidence cited by Plaintiff establishes the existence of any new 14 condition not assessed by the ALJ, or shows a worsening of Plaintiff’s existing conditions. Plaintiff 15 does not demonstrate otherwise. The Court therefore finds that the ALJ was not obligated to further 16 develop the record. 17 2. The ALJ Did Not Err in Formulating Plaintiff’s RFC 18 An RFC “is the most [one] can still do despite [their] limitations” and it is “based on all the 19 relevant evidence in [one’s] case record,” rather than a single medical opinion or piece of evidence. 20 20 C.F.R. § 416.945(a)(1); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that 21 it is the responsibility of the ALJ, not the claimant’s physician, to determine residual functional 22 capacity.”). Further, an ALJ’s RFC determination need not precisely reflect any particular 23 physician’s assessment. See, e.g., Turner v. Comm’r Soc. Sec. Admin., 613 F.3d 1217, 1222-23 24 (9th Cir. 2010) (the ALJ properly incorporated physician’s observations in the RFC determination 25 while, at the same time, rejecting the implication that plaintiff was unable to “perform simple, 26 repetitive tasks in an environment without public contact or background activity”). 27 In criticizing the ALJ’s failure to develop the record—which the Court has already 28 rejected—Plaintiff contends that the RFC was the result of the ALJ improperly imposing their own 1 lay interpretation of the medical evidence. (See Doc. 18 at 16–17.) This contention is unavailing. 2 The nature of the ALJ’s responsibility is to interpret the evidence of record, including 3 medical evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Such a responsibility 4 does not result in the ALJ committing legal error when they assess an RFC that is consistent with 5 the record. See Mills v. Comm’r of Soc. Sec., No. 2:13-CV-0899-KJN, 2014 WL 4195012, at *4 6 (E.D. Cal. Aug. 22, 2014) (“[I]t is the ALJ’s responsibility to formulate an RFC that is based on 7 the record as a whole, and thus the RFC need not exactly match the opinion or findings of any 8 particular medical source.”) (citing Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989)). 9 According to the record, the only expert medical opinions regarding Plaintiff’s impairments 10 are those of Dr. Nussbaum (AR 531) and State agency physicians Drs. Bijpuria (AR 87–88) and 11 Ormsby (AR 97–99). The ALJ considered these persuasiveness of these opinions, as the ALJ is 12 charged to do,6 and rejected a limitation to “medium” exertional activity, finding instead that the 13 opinions—as well as the Plaintiff’s “objective clinical presentation, course of treatment, and 14 reported activities” that post-dated the opinions—supported a “light” exertional limitation. (AR 15 26–27.) The ALJ then formulated Plaintiff’s RFC, which included additional physical limitations 16 beyond those found by the opining physicians. (Compare AR 531, 87–88 and 97–99 with AR 24– 17 27.).7 See Mills, 2014 WL 4195012, at *4 (finding argument that the ALJ was improperly 18 attempting to “play doctor” lacked merit where the ALJ “carefully analyzed the various medical 19 opinions, treatment records, and plaintiff’s own testimony in formulating an RFC.”). See also 20 20 C.F.R. § 404.1527(d)(2) (“the final responsibility for deciding [RFC] is reserved to the 21 Commissioner), § 404.1545(a)(1) (“We will assess your residual functional capacity based on all 22 the relevant evidence in your case record.”). 23 In contrast to the cases cited by Plaintiff (see Doc. 18 at 16), this is not a situation where all 24 6 On January 18, 2017, the Social Security Administration published revisions to its regulations regarding the 25 evaluation of medical evidence. See REVISIONS TO RULES REGARDING THE EVALUATION OF MEDICAL EVIDENCE, 82 Fed. Reg. 5844-01, 2017 WL 168819 (January 18, 2017). For applications, like Plaintiff’s, filed on 26 or after March 27, 2017, the new regulations state an ALJ need “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 27 [Plaintiff’s] medical sources.” 20 C.F.R. § 404.1520c(a). Instead, an ALJ is to evaluate opinions by considering their “persuasiveness.” Id. 28 7 The ALJ’s RFC assessment is also based on consideration of the subjective complaint testimony, which, as set forth 1 of the opinion evidence in the record has been wholly discounted, resulting in an RFC 2 determination apparently based solely on treatment notes and the plaintiff’s testimony. Cf. Vasquez 3 v. Comm’r of Soc. Sec., No. 1:18-CV-01042-EPG, 2019 WL 3714565, at *4 (E.D. Cal. Aug. 7, 4 2019); Shipp v. Colvin, No. CV 13-9468 JC, 2014 WL 4829035 (C.D. Cal., Sept. 26, 2014). Here, 5 the ALJ evaluated the medical evidence as well the opinions of Drs. Nussbaum, Bijpuria, Ormsby. 6 As set forth above, the ALJ did not reject their opinions outright, but instead found that they, in 7 consideration with the subsequent medical record, supported a more restrictive RFC than a 8 “medium” exertional activity level. Plaintiff does not specify what additional functional limitations 9 in the records that he directs the Court to review establish that were not accounted for in the ALJ’s 10 RFC assessment. Nor does he otherwise show any inconsistency between this evidence and his 11 RFC. Instead, it appears that Plaintiff is advocating for an alternative interpretation of the evidence 12 he cites in his briefing. The Court, however, will not second guess the ALJ’s reasonable 13 interpretation, even if such evidence could give rise to inferences more favorable to Plaintiff. See 14 Molina, 674 F.3d at 1110. 15 In sum, the Court does not find error in the ALJ’s reliance on the opinions of the state 16 agency physicians and finds that substantial evidence supports the ALJ’s conclusions regarding the 17 impact of Plaintiff’s impairments on the RFC. Plaintiff may disagree with the RFC, but the Court 18 must nevertheless uphold the ALJ’s determination because it is a rational interpretation of the 19 evidence. See Ford, 950 F.3d at 1159 (“Our review of an ALJ’s fact-finding for substantial 20 evidence is deferential”); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 21 3. Even if the ALJ Erred, Any Error is Harmless 22 In addition to bearing the burden of showing he is disabled, Plaintiff has the burden of 23 establishing that any error resulted in actual harm. See Ludwig v. Astrue, 681 F.3d 1047, 1054–55 24 (9th Cir. 2012). An “ALJ’s error is harmless where it is inconsequential to the ultimate 25 nondisability determination.” See Molina, 674 F.3d at 1115 (quotation marks and citations 26 omitted)); Garcia v. Comm of Soc. Sec., 768 F.3d 925, 932 & n.10 (9th Cir. 2014) (harmless error 27 analysis applies where ALJ errs by not discharging duty to develop record). 28 Here, even assuming the RFC was unsupported by substantial evidence because the ALJ 1 failed to further develop the record as to certain findings made after the state agency review, 2 Plaintiff fails to show prejudice. See Meanel, 172 F.3d at 1113; Molina, 674 F.3d at 1115. 3 Specifically, Plaintiff fails to explain how any of the relatively unremarkable evidence post-dating 4 the state agency physicians’ opinions, described above, would materially affect the ALJ’s disability 5 determination. According to the VE, even a limitation to sedentary exertional activity level would 6 not preclude all work. (AR 74–75.) In fact, the only restrictions that would preclude all work for 7 Plaintiff as testified by the VE would be: (1) an additional limitation to being absent one day a 8 week; (2) an additional limitation to being off task 15% of the workday; or (3) additional limitations 9 of standing and walking three hours in an eight-hour day and requiring four to five unscheduled 10 breaks of 10 to 15 minutes in duration a day. (AR 77–78.) Plaintiff has not demonstrated that any 11 of these restrictions are provided for or otherwise supported by the objective evidence he cites. 12 Thus, any error does not warrant reversal. 13 B. The ALJ Properly Found Plaintiff Less Than Fully Credible 14 1. Legal Standard 15 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 16 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 17 the ALJ must determine whether the claimant has presented objective medical evidence of an 18 underlying impairment that could reasonably be expected to produce the pain or other symptoms 19 alleged. Id. The claimant is not required to show that [their] impairment “could reasonably be 20 expected to cause the severity of the symptom [they have] alleged; [they] need only show that it 21 could reasonably have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 22 504 F.3d 1028, 1036 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence 23 of malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 24 if they give “specific, clear and convincing reasons” for the rejection.8 Id. As the Ninth Circuit 25 has explained: 26 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s 27 28 1 other testimony by the claimant that appears less than candid; (2) unexplained or 2 inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is 3 supported by substantial evidence, the court may not engage in second-guessing. 4 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 5 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may 6 consider include a claimant’s work record and testimony from physicians and third parties 7 concerning the nature, severity, and effect of the symptoms of which they complain. Light v. Social 8 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 9 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 10 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 11 2014) (quoting Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 12 General findings are not enough to satisfy this standard; the ALJ “‘must identify what testimony is 13 not credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 14 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 15 2. Analysis 16 As noted above, the ALJ found Plaintiff’s impairments “could reasonably be expected to 17 cause the alleged symptoms,” yet rejected Plaintiff’s subjective testimony as “not entirely 18 consistent with the medical evidence and other evidence in the record . . . .” (AR 25.) Since the 19 ALJ found Plaintiff’s “medically determinable impairments could reasonably be expected to cause 20 the alleged symptoms,” the only remaining issue is whether the ALJ provided “specific, clear and 21 convincing reasons” for Plaintiff’s adverse credibility finding. See Vasquez, 572 F.3d at 591. 22 Had the ALJ’s statement that Plaintiff’s subjective testimony was inconsistent with the 23 medical record been the end of discussion, Plaintiff’s argument that the ALJ erred by “failing to 24 provide clear and convincing reasons for finding that Plaintiff’s statements were inconsistent with 25 the evidence” (Doc. 18 at 13), and reliance on Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 26 2015), might have merit. However, the ALJ continued the analysis—with references to Plaintiff’s 27 subjective complaints—explaining that “subsequent medical evidence consistently indicates 28 [Plaintiff’s] surgery was largely successful in alleviating his symptoms”; the evidentiary record is 1 not “consistent with [Plaintiff’s] allegation that his back pain worsened in 2016”; “the existing 2 medical records show [Plaintiff’s] objective clinical presentation remained largely unchanged upon 3 his resumption of treatment in 2017”; “the updated medical evidence similarly fails to show that 4 [Plaintiff’s] back condition has been so severe as to preclude any/all work”; and “the updated 5 medical records show [Plaintiff] has acknowledged being ‘significantly better’ in terms of pain 6 following the above-referenced injections as well as ‘functionally better in how he walks and how 7 much tenderness he has.’” (AR 25–26 (emphasis added).) 8 With each finding, the ALJ summarized the pertinent portions of, or noted gaps in, the 9 medical record. (AR 25–26.) For example, in the months following his surgery in December 2014, 10 Plaintiff reported that he was “better since [surgery],” and physical examinations showed Plaintiff’s 11 thoracolumbar range of motion was normal, with no focal area of tenderness to the lumbar spine 12 or muscle spasms. (AR 461–62, 529.) He also had normal reflexes, full strength, negative straight 13 leg raising test, and normal gait. (AR 461–62, 529–30.) Years later, in February 2017, Plaintiff 14 reported that his sciatica “disappeared after surgery,” and his physical examination was normal, 15 with normal sensation. (AR 280, 282.) A physical examination of Plaintiff in April 2018 showed 16 his gait was normal, with heel walking noted as “unstable” because of back pain. (AR 771.) His 17 motor strength was normal, no asymmetry or atrophy noted, and his sensation intact. (AR 771.) 18 Straight leg raising test was negative. (AR 771.) In January 2019, Plaintiff ‘s gait and heel walking 19 were normal, and limited range of motion in his low back “mainly while twisting” was noted. (AR 20 783.) He showed normal sensation and neurologic function. (AR 783–84.) It was noted that 21 Plaintiff is “[f]unctionally better in how he walks and how much tenderness he has.” (AR 784.) 22 Plaintiff reported normal activity level and that his “treatment plan allows [him] to remain 23 functional,” with no side effects in February 2019. (AR 793.) In November 2019, Plaintiff again 24 reported his “treatment plan allows [him] to remain functional,” his activity level is normal, that 25 his pain is “significantly better,” and he is “able to be more functional with the [medical branch 26 block] injection.” (AR 961.) 27 In evaluating a claimant’s claimed symptoms, an ALJ may find a plaintiff less credible 28 when their symptoms can be controlled by treatment and/or medication. See 20 C.F.R. § 1 404.1529(c)(3)(iv)–(v); see also Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006) 2 (“Impairments that can be controlled effectively with medication are not disabling for purposes of 3 determining eligibility for [disability] benefits.”). Here, there is substantial evidence in record, as 4 set forth above, that Plaintiff’s physical condition improved following both his microdiscectomy 5 and his treatment with injections and medical branch blocks. Plaintiff’s improvement with 6 treatment is a clear and convincing reason for discounting his subjective symptom testimony. See 7 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (ALJ’s adverse 8 credibility determination properly accounted for physician’s report of improvement with 9 medication); Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (affirming denial of benefits and 10 noting that claimant’s impairments were responsive to treatment). 11 In addition, “[a]n ALJ may properly discount a plaintiff's credibility based on an 12 unexplained failure to seek treatment consistent with the alleged severity of the subjective 13 complaints.” Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991). As the ALJ noted (AR 25), 14 although Plaintiff testified his back pain worsened beginning in 2016 (AR 54, 63, 65), there is no 15 evidence in the medical record of any further treatment of Plaintiff’s back pain between July 2015 16 and February 2017. The ALJ was therefore entitled to discount Plaintiff’s credibility based on this 17 gap in his treatment record. 18 Lastly, it is appropriate for an ALJ to consider a claimant’s activities that undermine claims 19 of severe limitations in making the credibility determination. See Fair v. Bowen, 885 F.2d 597, 20 603 (9th Cir. 1989); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); 21 Rollins, 261 F.3d at 857; see also Thomas, 278 F.3d at 958–59 (an ALJ may support a determination 22 that the claimant was not entirely credible by identifying inconsistencies between the claimant’s 23 complaints and the claimant’s activities.). It is well-established that a claimant need not “vegetate 24 in a dark room” to be deemed eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 25 1987). If a claimant, however, can spend a substantial part of their day engaged in pursuits 26 involving the performance of physical functions that are transferable to a work setting, a specific 27 finding as to this fact may be sufficient to discredit an allegation of disability. Fair, 885 F.2d at 28 603. “Even where [Plaintiff’s] activities suggest some difficulty functioning, they may be grounds 1 for discrediting the claimant’s testimony to the extent that they contradict claims of a totally 2 debilitating impairment.” Molina, 674 F.3d at 1113. 3 Here, Plaintiff alleges an inability to work due to his low back pain—the severity of which 4 he rates as a nine out of ten. (AR 64.) According to Plaintiff, he can only stand or sit for an hour 5 at a time and if he does “overdoes” things he will be “down” for a week with back pain. (AR 64, 6 69, 70.) Despite these alleged severe limitations, the hearing testimony shows that Plaintiff drives 7 a car and picks up his daughter from school every day. (AR 56.) He gives public talks as a 8 Jehovah’s Witness and spends four hours typing his speeches on a laptop. (AR 56.) He 9 “occasionally” or “sometimes” does door to door witnessing activities by walking for about an hour 10 at a time. (AR 56–57, 738, 769.) The Court finds that these activities were reasonably considered 11 by the ALJ to be inconsistent with Plaintiff’s alleged inability to work due to constant, severe, 12 debilitating low back pain. (AR 26.) Accordingly, the inconsistency between Plaintiff’s activity 13 level and his complaints was yet another clear and convincing reason to find his statements and 14 testimony not credible. See 20 C.F.R. § 404.1529(c)(3); Stubbs-Danielson v. Astrue, 539 F.3d 15 1169, 1175 (9th Cir. 2008). 16 For all of the foregoing reasons, the Court finds that the ALJ did not err in evaluating 17 Plaintiff's subjective complaints. 18 V. CONCLUSION AND ORDER 19 After consideration of Plaintiff’s and the Commissioner’s briefs and a thorough review of 20 the record, the Court finds that the ALJ’s decision is supported by substantial evidence and is 21 therefore AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of 22 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, and against Plaintiff. 23 IT IS SO ORDERED. 24 25 Dated: May 31, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 26 27 28