(SS) Macias v. Commissioner of Social Security ( 2024 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LORENA MACIAS, No. 1:22-cv-01283-JLT-SKO 10 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF’S 11 v. MOTION FOR SUMMARY JUDGMENT BE GRANTED, DEFENDANT’S CROSS- 12 MARTIN O’MALLEY, MOTION FOR SUMMARY JUDGMENT BE COMMISSIONER OF SOCIAL DENIED, AND THE ACTION BE 13 SECURITY,1 REMANDED TO THE COMMISSIONER FOR FURTHER PROCEEDINGS 14 Defendant. 15 14-DAY DEADLINE 16 17 I. INTRODUCTION 18 Plaintiff Lorena Macias (“Plaintiff”) seeks judicial review of a final decision of the 19 Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application 20 for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). 21 Doc. 1. The matter is currently before the Court on the parties’ briefs, which were submitted, 22 without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.2 For 23 the reasons set forth below, the undersigned recommends the Court grant Plaintiff’s motion for 24 summary judgment, deny Defendant’s motion for summary judgment, and remand this action to 25 26 1 On December 20, 2023, Martin O’Malley was named Commissioner of the Social Security Administration. See https://www.ssa.gov/history/commissioners.html. He is therefore substituted as the defendant in this action. See 42 27 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.”). 28 2 The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 1 the Commissioner for further proceedings. 2 II. BACKGROUND 3 Plaintiff was born on February 16, 1973, and she was 46 years old at her claimed disability 4 onset date of June 5, 2019. (Administrative Record (“AR”) 377). She has a 12th-grade education 5 and previously worked as an office assistant for the County of Fresno from January 2002 to 6 December 2017. (AR 377, 379). 7 A. Relevant Evidence of Record3 8 1. Medical Evidence 9 Most of Plaintiff’s medical evidence relates to (1) her left-eye prosthesis and (2) her 10 history of mental impairments. Plaintiff suffered an eye trauma in childhood that left her without 11 her left eye. (See AR 829). During the relevant period, Plaintiff has had various complications 12 related to her eyes, including an infection treated with antibiotics (AR 604-06) and dry eye (AR 13 787). She often complained of intense pain and fatigue in her right eye. (See, e.g., AR 787 [April 14 2021], 792 [February 2020], 798 [May 2019], 803 [February 2019], 809 [October 2018]). She has 15 on occasion noted momentary vision loss in her right eye. (See, e.g., AR 787). With respect to 16 Plaintiff’s mental impairments, she takes various medications for mood management, though she is 17 often anxious or depressed upon examination. (See, e.g., AR 646). 18 2. Opinion Evidence 19 Jerry Livesay, Ph.D., performed a psychological consultative examination on February 15, 20 2020. (AR 723). Plaintiff reported depression, anxiety, vision problems, back problems, 21 dizziness, headaches and obsessive-compulsive disorder (“OCD”). (AR 723). She reported that 22 she does not cook, shop, do yard work or drive. (AR 725). She noted that she watches television 23 but is otherwise in bed because of her headaches. (AR 725). Dr. Livesay diagnosed Plaintiff with 24 OCD (moderately severe to severe), depressive disorder due to other medical conditions (moderate 25 with anxious distress), and insomnia disorder (moderately severe to severe), comorbid with 26 depression. (AR 726). Dr. Livesay noted Plaintiff’s issues were “treatable, and she would likely 27 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 show measurable improvement over the course of the next year if she remains involved in 2 evidenced-based treatment.” (AR 727). Dr. Livesay concluded Plaintiff was mildly impaired in 3 performing detailed and complex tasks and interacting with coworkers and the public. (AR 727). 4 He also found she was moderately impaired in maintaining regular attendance and completing an 5 average workday/workweek without interruptions from a psychiatric condition, as well as 6 concerning her ability to deal with usual stress encountered in the workplace. (AR 727). 7 L. Bobba, M.D., a State agency medical consultant, reviewed Plaintiff’s records on March 26, 8 2020, and concluded she could perform light work that did not require binocular vision or depth 9 perception or moderate exposure to hazards. (AR 118-20). On July 3, 2020, state agency medical 10 consultant R. Bitonte, M.D., arrived at the same conclusion. (AR 138-39). 11 On May 14, 2020, Pamela Hawkins, Ph.D., a State agency psychological consultant, found 12 Plaintiff had moderate limitations in understanding, remembering or applying information; and 13 concentration, persistence, or maintaining pace. (AR 116). Dr. Hawkins also found Plaintiff could 14 perform simple tasks, maintain concentration, and interact with co-workers, but that she would benefit 15 from an environment with limited contact. (AR 120-22). On July 7, 2020, R. Paxton, M.D., a State 16 agency psychiatric consultant, found the same. (AR 135; 139-41). 17 3. Plaintiff’s Testimony4 18 At the hearing, Plaintiff testified that her right eye easily fatigues. (AR 51-52). In her 19 previous position with Fresno County, computer work aggravated her eye pain and fatigue, 20 causing headaches and dizziness. (AR 51-52). She testified that she struggled to complete an 21 eight-hour workday because of this pain, even though doctors had prescribed her various 22 restrictions (such as resting her eye every 15 minutes). (AR 51-52). She now rests her eye for 23 five minutes every 15 to 20 minutes. (AR 58). Her eye strain is also reflected in her daily 24 activities. She testified she cannot watch movies, as her “good eye” would become strained, and 25 she would have blurry, double vision. (AR 57). Her eye also blurs after roughly 10 minutes of 26 driving. (AR 62). She removes her prosthetic eye throughout the day because of its itching and 27 burning, which is a newer complication. (AR 59). With regard to her anxiety and depression, 28 1 Plaintiff testified she rarely leaves the house because of her anxiety, and she spends most of her 2 days in bed. (AR 54, 59). Her health problems often trigger her anxiety. (AR 52). She also 3 struggles to make phone calls or otherwise interact with others. (AR 52). 4 B. The ALJ’s Decision 5 Plaintiff submitted her first claim for Title II Disability Insurance Benefits on July 20, 6 2016, alleging a disability onset date of June 1, 2017. (AR 377). That claim was denied initially 7 on September 16, 2016, and again upon reconsideration on December 14, 2016. (AR 81). 8 Plaintiff requested a telephonic hearing before an Administrative Law Jaw (an “ALJ”), and the 9 parties attended a telephonic hearing on February 20, 2019. (AR 81). Plaintiff appeared by 10 telephone with an attorney representative (Mr. Jonathan O. Pena), and she amended the alleged 11 onset date to December 1, 2017. (AR 81). Plaintiff testified with the assistance of a Spanish 12 interpreter. (AR 81). The ALJ denied Plaintiff’s application on June 4, 2019. (AR 90). Plaintiff, 13 through counsel, sought review of that decision on September 16, 2019 (AR 103), and the Appeals 14 Council dismissed her request for its untimeliness. (AR 103-04). 15 Plaintiff filed the instant application for disability benefits on October 22, 2019, through 16 Mr. Pena, alleging a disability onset date of June 5, 2019. (AR 23). The application was denied 17 initially and upon reconsideration. (AR 123). Plaintiff then requested a hearing before an ALJ. 18 (AR 165). The ALJ held the hearing on May 25, 2021 (AR 23), and Plaintiff testified with the 19 help of a Spanish interpreter. (AR 23). Plaintiff’s non-attorney representative, Malinda Davies, 20 also appeared with Plaintiff. (AR 23). 21 In a decision dated September 1, 2021, the ALJ found that Plaintiff was not disabled as 22 defined by the Act after conducting the five-step disability analysis set forth in 20 C.F.R. § 23 404.1520. (AR 23-31). At step one, the ALJ found Plaintiff had not engaged in substantial 24 gainful activity since the alleged onset date of June 5, 2019 (step one). (AR 26). At step two, the 25 ALJ found Plaintiff had the following severe impairments: status/post-loss of left eye with 26 prosthetic implant, bilateral dry eye and right eye presbyopia, migraine headache disorder, 27 persistent depressive disorder, generalized anxiety disorder, and obsessive-compulsive disorder 28 (OCD). (AR 26). Plaintiff did not have an impairment or combination of impairments that met or 1 medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 2 (“the Listings”) (step three). (AR 27-20). 3 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)5 and applied the 4 assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three 5 to step four, we assess your residual functional capacity . . . . We use this residual functional 6 capacity assessment at both step four and step five when we evaluate your claim at these steps.”). 7 The ALJ found Plaintiff’s conditions limited her to the following RFC: 8 to perform light work as defined in 20 CFR 404.1567(b) except the claimant cannot climb ladders, ropes or scaffolds and cannot have exposure to hazards such as 9 moving machinery and unprotected heights. She can understand, remember, and carry out short and simple instructions and can occasionally interact with 10 supervisors, coworkers and the public. She cannot perform fast-paced assembly 11 line work, but can meet production requirements that allow her to sustain a flexible and goal oriented pace and can sustain concentration and persistence for periods of 12 two hours at a time. She can adapt to occasional workplace changes. She can perform work that requires monocular vision but cannot perform work requiring 13 accurate depth perception. She will miss one day per month. 14 (AR 26). At steps four and five, the ALJ found that Plaintiff could not perform any past relevant 15 work, as Plaintiff would be limited to unskilled work and her previous positions were semi-skilled. 16 (AR 34). However, considering the Plaintiff’s age, education, work experience and RFC, the ALJ 17 concluded that jobs existed in significant numbers in the national economy that Plaintiff could 18 perform. (AR 34). Those jobs included laundry folder (Dictionary of Occupational Titles 19 (“DOT”) Number 369.687-018), inspector/hand packager (DOT Number 559.687-074), 20 shipping/receiving weigher (DOT Number 222.387-074), mail clerk (non-postal) (DOT Number 21 209.687-026) and ticket marker (DOT Number 209.587-034). The ALJ concluded Plaintiff was 22 not disabled under the Social Security Act. (AR 35-36). 23 Plaintiff, through her attorney, Mr. Pena, requested review of the ALJ’s decision but did 24 25 5 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 not offer any additional evidence. (AR 254-55). The Appeals Council denied review on August 2 12, 2022, making the September 1, 2021, decision the final decision of the Commissioner. (AR 3 2); 20 C.F.R. § 404.981. 4 III. LEGAL STANDARDS 5 A. Applicable Law 6 An individual is considered “disabled” for purposes of disability benefits if he or she is 7 unable “to engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which has lasted or can 9 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 10 However, “[a]n individual shall be determined to be under a disability only if [their] physical or 11 mental impairment or impairments are of such severity that he is not only unable to do [their] 12 previous work but cannot, considering [their] age, education, and work experience, engage in any 13 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 14 “The Social Security Regulations set out a five-step sequential process for determining 15 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 16 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has 17 provided the following description of the sequential evaluation analysis: 18 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 19 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 20 so, the ALJ proceeds to step three and considers whether the impairment or 21 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. 22 If not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing [their] past relevant work. If so, the claimant is not disabled. If not, 23 the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, the 24 claimant is not disabled. If not, the claimant is disabled. 25 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 26 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 27 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 28 1 “The claimant carries the initial burden of proving a disability in steps one through four of 2 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 3 1989)). “However, if a claimant establishes an inability to continue [their] past work, the burden 4 shifts to the Commissioner in step five to show that the claimant can perform other substantial 5 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 6 B. Scope of Review 7 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 8 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 9 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is 10 ‘more than a mere scintilla,’” and means only “such relevant evidence as a reasonable mind might 11 accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) 12 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Ford v. Saul, 950 F.3d 13 1141, 1154 (9th Cir. 2020). 14 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 15 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 16 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th 17 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when 18 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund v. 19 Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more than one 20 rational interpretation, the court may not substitute its judgment for that of the Commissioner.” 21 (citations omitted)). 22 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 23 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 24 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 25 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 26 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 27 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 28 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 1 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 2 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’ ” 3 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 4 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking 5 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 6 IV. DISCUSSION 7 Plaintiff contends, inter alia, that the ALJ erred in several respects. For the reasons 8 explained below, the Court finds that the ALJ erred by failing to provide specific, clear and 9 convincing reasons to discount Plaintiff’s subjective complaints, and that error was not harmless. 10 The undersigned recommends the Court remand on that basis. Because this matter is before the 11 Court for its findings and recommendations, the undersigned will address all of Plaintiff’s 12 allegations of error. 13 A. The ALJ Properly Developed the Record 14 1. Legal Standard 15 Claimants carry the burden to prove they are disabled. 20 C.F.R. § 404.1512(a). 16 However, “Social Security proceedings are inquisitorial rather than adversarial.” Schiaffino v. 17 Saul, 799 Fed. App'x 473, 476 (9th Cir. 2020) (quoting Sims v. Apfel, 530 U.S. 103, 111–12 18 (2000)). An ALJ has a responsibility to develop a “complete medical history” and to “make every 19 reasonable effort to help [the plaintiff] get medical reports.” 20 C.F.R. § 404.1512(d). “The ALJ 20 always has a ‘special duty to fully and fairly develop the record and to assure that the claimant's 21 interests are considered.’” Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (quoting Brown 22 v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). 23 The ALJ is not a mere umpire at such a proceeding . . . . it is incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire of, and explore for all 24 the relevant facts. He must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited. 25 26 Id. (quoting Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 1992)). However, the duty to develop 27 the record further is only triggered when there is ambiguous evidence or the record does not allow 28 for proper evaluation of the evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 1 The ALJ’s duty to develop the record fully is heightened when a claimant is mentally ill and 2 unable to protect his or her own interests. Id. However, if the record includes “specific and 3 sufficient” evidence to evaluate a claim, the record is neither ambiguous nor inadequate. Gurin v. 4 Saul, 842 F. App'x 45, 48 (9th Cir. 2021). An ALJ may discharge their duty by subpoenaing 5 claimant's doctors, submitting questions to claimant's physicians, continuing the hearing, or 6 keeping the record open after the hearing to allow supplementation of the record. Tonapetyan, 7 242 F.3d at 1150. 8 2. Analysis 9 a. The ALJ Did Not Fail to Obtain Records from Dr. Louie 10 Plaintiff contends the ALJ did not properly develop the record because the ALJ failed (1) 11 to obtain medical records from Dr. Stanley Louie of Logan Street Medical Group, or (2) to contact 12 Plaintiff or her attorney to advise these records had not been requested or otherwise obtained.6 13 (Doc. 14-23 at 19.) Dr. Louie treated Plaintiff from January 2010 through January 2018 and 14 Plaintiff included him as a treating physician on her application for benefits (AR 292-308), but 15 Plaintiff did not submit any of Dr. Louie’s records to the ALJ for consideration. Plaintiff contends 16 this failure was detrimental to her claim because Dr. Louie was the provider who instructed 17 Plaintiff to rest her eyes every 15 minutes for a total of 3 minutes, and during the ALJ hearing, the 18 Vocational Expert testified people who need to rest their eyes for 3 minutes every 15 minutes 19 would be too off-task to maintain employment. (AR 71-72). In the decision, the ALJ concluded 20 “[t]he record is not supportive of the claimant’s statement that a provider indicated that she must 21 rest her eyes for every three out of fifteen minutes.” (AR 32). 22 Setting aside Dr. Louie’s opinions, Plaintiff has not established the record contained 23 ambiguous evidence or otherwise triggered the ALJ’s duty to develop the record further. 24 Tonapetyan, 242 F.3d at 1150. When rejecting Plaintiff’s claim that a provider indicated that she 25 must rest her eyes for every 3 out of 15 minutes, the ALJ cited the treatment notes in the record, 26 6 In its response, the Government argues this evidence is not new or material and therefore does not warrant remand 27 under sentence six of 42 U.S.C. § 405(g). However, Plaintiff maintains she “seeks a remand for payment or consideration of Dr. Louie’s records not because they are new, but rather because the ‘ALJ failed to fulfill her duty to 28 fully and fairly develop the record.’” For this reason, the Court will not address whether the additional records 1 none of which suggested Plaintiff’s eye required a certain amount of rest per hour. (AR 32). 2 Plaintiff contends, in a conclusory fashion, that the ALJ should have sought these additional 3 records because Plaintiff failed to submit the documents herself, despite her long treatment history 4 with Dr. Louie. Because it is Plaintiff's burden to present evidence of disability, the mere absence 5 of a report from a treating or examining physician does not give rise to a duty to develop the 6 record; instead, that duty is triggered only where there is an inadequacy or ambiguity. Bayliss v. 7 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Alvarez v. Astrue, No. 1:08-cv-01205-SMS, 2009 8 WL 2500492, at *10 (E.D. Cal. Aug. 14, 2009) (finding absence of report from treating physician 9 did not give rise to a duty to develop the record where record contained opinions of the state 10 agency physicians and plaintiff's complete treatment records); see also 42 U.S.C. § 423(d)(5)(A) 11 (“An individual shall not be considered to be under a disability unless [they] furnish[ ] such 12 medical and other evidence of the existence thereof as the Commissioner of Social Security may 13 require.”); 20 C.F.R. § 416.920(a) (“[Y]ou have to prove to us that you are ... disabled[.]”). The 14 record contained “specific and sufficient” medical evidence to evaluate Plaintiff’s claim. 15 b. The ALJ Did Not Fail to Seek Guidance from a Medical Expert 16 Plaintiff also contends the ALJ failed to develop the record further and seek guidance from 17 a medical expert. 18 [Plaintiff] has a complicated and long medical history, characterized by repeated surgeries, chronic pain, fatigue, inability to focus, depression, anxiety, and OCD 19 behaviors, which are attributable to her various impairments. In her assessment, the ALJ rejected much of [Plaintiff’s] evidence in support of disability, including 20 her subjective symptom testimony, and the opinions of her treating and examining 21 physicians (i.e., Dr. Villalvazo and Kimberlynn Silva)—crediting only the opinions of the agency doctors. (AR 32-33.) Despite apparent questions or doubts about 22 [Plaintiff’s] symptoms and functionality, the ALJ neither scheduled a consultative examiner nor requested that a medical expert testify at the hearing. The ALJ also 23 failed to call any of [Plaintiff’s] treating providers for clarification on the comorbid effects of her conditions, how they impacted her functionality, and what reasonable 24 options for treatment existed. Thus, the ALJ erred by acting as his own medical 25 expert instead of utilizing either a consultative examiner or a medical expert to provide her with professional guidance in a case that has a complex medical profile. 26 Doc. 14-23 at 23. 27 Plaintiff has failed again to specify which ambiguous evidence triggered the ALJ’s duty to 28 1 develop the record further or otherwise show the record did not allow for proper evaluation of the 2 evidence. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)). Without pointing to specific 3 incongruities, Plaintiff’s argument fails. Lloyd v. Astrue, No. C-11-4902-EMC, 2013 WL 503389, at 4 *5 (N.D. Cal. Feb. 8, 2013) (“[A]n ALJ is not required to order every medical evaluation that could 5 conceivably shed light on a claimant's condition, but rather just those that would resolve ambiguities or 6 inadequacies in the record.”) (citing Mayes, 276 F.3d at 459-60). 7 Plaintiff provides only amorphous arguments, such as the ALJ erred by “fail[ing] to call any of 8 [Plaintiff’s] treating providers for clarification on the comorbid effects of her conditions” (without 9 demonstrating which competing facts needed clarification) and by “acting as his own medical 10 expert instead of utilizing either a consultative examiner or a medical expert to provide her with 11 professional guidance in a case that has a complex medical profile” (without identifying which 12 facts lacked a professional insight). Instead, Plaintiff merely disagrees with the ALJ’s conclusion, 13 suggesting the evidence could suggest a different result. This is insufficient to trigger the ALJ’s duty 14 to develop the record further. Dixon v. Saul, 411 F.Supp.3d 837, 853 (N.D. Cal. Sept. 30, 2019) 15 (“Plaintiff's disagreement with the ALJ's conclusions does not make the record ambiguous or 16 inadequate.”). 17 To the extent Plaintiff contends the ALJ’s conclusion must mirror one specific medical 18 opinion, this argument fails because the nature of the ALJ’s responsibility is to interpret all the 19 evidence of record, including medical evidence. 20 C.F.R. § 416.920b; Andrews v. Shalala, 53 20 F.3d 1035, 1039 (9th Cir. 1995). Such a responsibility does not result in the ALJ committing legal 21 error when they assess an RFC that is consistent with the record. See Mills v. Comm'r of Soc. Sec., 22 No. 2:13-CV-0899-KJN, 2014 WL 4195012, at *4 (E.D. Cal. Aug. 22, 2014) (“[I]t is the ALJ's 23 responsibility to formulate an RFC that is based on the record as a whole, and thus the RFC need 24 not exactly match the opinion or findings of any particular medical source.”) (citing Magallanes v. 25 Bowen, 881 F.2d 747, 753 (9th Cir. 1989)). To suggest otherwise is to render an ALJ superfluous. 26 Razaqi v. Kijakazi, No. 1:20-CV-01705-GSA, 2022 WL 1460204, at *7 (E.D. Cal. May 9, 2022) 27 (“An ALJ is almost always tasked with performing some independent review the medical evidence 28 that was never considered by one of the state agency’s DDS physicians, and thereafter translating 1 the same into an RFC . . . this is indeed the ALJ’s role”). 2 B. The Additional Evidence Submitted by Plaintiff Does Not Warrant a Remand Under 3 § 405(g) 1. Legal Standard 4 Sentence Six of section 405(g) provides, in part, that the Court “may at any time order 5 additional evidence to be taken before the Commissioner of Social Security, but only upon a 6 showing that there is new evidence which is material and that there is good cause for the failure to 7 incorporate such evidence into the record in a prior proceeding.” To be material, the new evidence 8 must bear “directly and substantially on the matter in dispute,” and the claimant “must additionally 9 demonstrate that there is a ‘reasonable probability’ that the new evidence would have changed the 10 outcome of the administrative hearing.” Mayes, 276 F.3d at 453. “To demonstrate good cause, the 11 claimant must demonstrate that the new evidence was unavailable earlier.” Id. at 463. 12 “If new information surfaces after the [agency's] final decision and the claimant could not 13 have obtained that evidence at the time of the administrative proceeding, the good cause 14 requirement is satisfied.” Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). “The new 15 evidence, however, must be probative of the claimant's condition as it existed at or before the time 16 of the disability hearing.” Abdullah v. Comm'r of Soc. Sec., No. 2:17-CV-2522-DMC, 2019 WL 17 3731528, at *3 (E.D. Cal. Aug. 8, 2019) (citing Sanchez v. Sec'y of Health and Human Servs., 812 18 F.2d 509, 511 (9th Cir. 1987)). 19 2. Analysis 20 Plaintiff contends “the Commissioner also did not have evidence that should have been 21 submitted by [Plaintiff’s] prior counsel and the ALJ was otherwise required to assist [Plaintiff] in 22 developing,” namely Plaintiff’s Fresno County Employee Retirement Association’s (“FCERA”) 23 file or relevant records from her pending ERISA LTD claim. (Doc. 14-23 at 20.) Plaintiff asserts 24 the FCERA file included records that, despite spanning for years before Plaintiff applied for SSDI 25 benefits, “they are evidence that [Plaintiff’s] disabling conditions have a long history—even before 26 she stopped working completely—that she made efforts to work despite her conditions, and that 27 despite these efforts, she was unable to perform her duties with any level of reasonable continuity or 28 1 predictability.” (Doc. 14-2 at 21-22.) Plaintiff contends the Court should remand this case 2 considering the new evidence.7 3 Plaintiff has not shown that the new evidence is material for purposes of section 405(g). 4 Most of the documents (see Docs. 14) pre-date the alleged onset date, some by almost ten years. 5 For instance, the FCERA file contains records of (1) personnel forms from 2000 – 2017 (Doc. 14- 6 10), (2) medical leave forms from May 2007 (Doc. 14-6), (2) and various employment records 7 from 2009 – 2017 (Doc. 14-8). As the Government notes, these records are too dated to be relevant, 8 and it is possible prior counsel made a tactical decision to omit them. Morales, 2015 WL 1507844, at 9 *4 (“Although counsel did not submit additional evidence after the hearing even though the ALJ kept 10 the record open for two weeks, he may have made a tactical decision that the additional evidence 11 would not help plaintiff’s claim.”). Only two of the records from the FCERA file are related to the 12 relevant time period: notes from an examination with David Poulsen, M.D., on April 17, 2019, (Doc. 13 14-15) and notes from an examination with Matthew House, D.O., on September 23, 2019 (Doc. 14-16 14 at 4-5). In both reports, the doctors concluded Plaintiff was not disabled. (Docs. 14-15, 14-16). The 15 Plaintiff has not demonstrated there is a “reasonable probability” that the new evidence would have 16 changed the outcome of the administrative hearing, and this argument fails. Mayes, 276 F.3d 453. 17 C. The ALJ Improperly Discounted Plaintiff’s Subjective Complaints 18 1. Legal Standard 19 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 20 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 21 the ALJ must determine whether the claimant has presented objective medical evidence of an 22 underlying impairment that could reasonably be expected to produce the pain or other symptoms 23 alleged. Id. The claimant is not required to show their impairment “could reasonably be expected 24 25 7 Plaintiff has included this argument (“The ALJ Failed to Inquire About Other Material Evidence”) under a section related to the ALJ’s duty to develop the record. However, the argument itself relates to whether new evidence 26 warrants a remand under sentence six of 42 U.S.C. § 405(g). To the extent the Plaintiff argues the ALJ had a duty to develop the record related to these documents, she has not established (1) ambiguous evidence triggered the ALJ’s 27 duty to develop the record related to Plaintiff’s pension records or (2) that Plaintiff has been prejudiced by the omission of these records. Tonapetyan, 242 F.3d at 1150. Again, Plaintiff only puts forth conclusory allegations that 28 the ALJ should have sought these documents without noting what ambiguity triggered the duty to develop the record 1 to cause the severity of the symptom [they] ha[ve] alleged; [they] need only show that it could 2 reasonably have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 3 F.3d 1028, 1036 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence of 4 malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 5 if they give “specific, clear and convincing reasons” for the rejection.8 Id. As the Ninth Circuit 6 has explained: 7 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation 8 for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or 9 inadequately explained failure to seek treatment or to follow a prescribed course of 10 treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 11 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 12 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may 13 consider include a claimant’s work record and testimony from physicians and third parties 14 concerning the nature, severity, and effect of the symptoms of which he complains. Light v. 15 Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 16 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 17 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 18 2014) (quoting Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 19 General findings are not enough to satisfy this standard; the ALJ “‘must identify what testimony is 20 not credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 21 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester, 81 F.3d at 834). 22 2. Analysis 23 Since the ALJ found Plaintiff’s “medically determinable impairments reasonably could be 24 expected to cause the alleged symptoms,” the only remaining issue is whether the ALJ provided 25 “specific, clear and convincing reasons” for Plaintiff’s adverse credibility finding. See Vasquez, 26 572 F.3d at 591. Plaintiff contends the ALJ erred by failing to credit her subjective complaints 27 28 1 related to: (1) her vision and prosthetic-related eye pain and (2) her anxiety and depression. (Doc. 2 14-23 at 23-25). However, since the ALJ’s analysis for both sets of subjective complaints suffers 3 the same flaws, the Court with address Plaintiff’s arguments together. 4 The ALJ erred by failing to specify which of Plaintiff’s subjective complaints it found 5 credible and which they did not, and the Court cannot speculate as to how the ALJ determined 6 these statements are undermined by the evidence. See Brown-Hunter, 806 F.3d at 494–95 (“We 7 cannot review whether the ALJ provided specific, clear and convincing reasons for rejecting 8 [claimant's] pain testimony where, as here, the ALJ never identified which testimony she found 9 not credible, and never explained which evidence contradicted that testimony . . . In sum, we 10 cannot substitute our conclusions for the ALJ's, or speculate as to the grounds for the ALJ's 11 conclusions.”). In the opinion, the ALJ wrote the following: 12 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments reasonably could be expected to 13 cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely 14 consistent with the medical evidence and other evidence in the record for the 15 reasons explained in this decision. Regarding the claimant’s visual functioning, treatment notes show that the 16 claimant’s left eye required removal after a childhood accident occurring at the age of five and that the claimant has had a series of prosthetic implants since, with 17 multiple revision surgeries. The most recent revision surgeries took place in March 18 2019. In July 2019, the claimant’s prosthetic had an infection that was treated with antibiotic ointment; she had 20/20 vision in her right eye. Upon examination in 19 March 2020, her socket was stable and there was no active inflammation; vision in her right eye was 20/25. She complained of dry eye in April 2021 and reported that 20 her glasses had been broken for a few months; uncorrected vision at this time was 21 20/40 on the right and she was given eye drops and a new prescription for glasses. She did not report eye problems to other providers and her right eye was 22 unremarkable on exam . . . . The undersigned considered the effects of the claimant’s mental impairments, 23 however characterized, and in combination when evaluating the impact of the same 24 on her ability to carry out mental work-related tasks. Treatment notes show outpatient counseling and medication management but no emergency psychiatric 25 treatment or inpatient hospitalizations. 26 The claimant takes Effexor and Lexapro for mood management but treatment notes show less than ideal control over mood given that she was often anxious and/or 27 depressed upon examination. However, the record does contain findings of normal mood as well. The claimant reported very short attention span and anxiety about 28 1 social functioning. 2 (AR 30-31) (internal citations omitted). 3 There is no discussion of any of the Plaintiff’s testimony or complaints. “Ultimately, the 4 ‘clear and convincing’ standard requires an ALJ to show [their] work.” Smart v. Kijakazi, 53 5 F.4th 489, 498 (9th Cir. 2022). Without any discussion of Plaintiff’s subjective complaints 6 (especially those related to her eye fatigue) from the ALJ, the undersigned cannot meaningfully 7 review the ALJ’s conclusions. At most, the ALJ states Plaintiff reported a short attention span, 8 while the record showed a generally normal memory, concentration and social functioning. 9 However, one stand-alone reference to Plaintiff’s subjective complaints is not sufficient for the 10 ALJ to “show their work,” as Plaintiff reported several complaints about her anxiety and 11 depression, namely that it prevented her from leaving her house and that she spent most of her 12 days in bed. (AR 54, 59). This alone is sufficient to find the Court erred in providing specific, 13 clear and convincing reasons to discount Plaintiff’s subjective complaints. 14 What the Court can discern is that the ALJ also erred by discounting the Plaintiff’s vision 15 and prosthetic-related eye pain, as well as her anxiety and depression, based solely on the 16 argument that the testimony lacked corroborative medical evidence. The Court finds this is not a 17 specific, clear and convincing reason to discount Plaintiff’s subjective complaints because “the 18 Ninth Circuit has repeatedly emphasized that, ‘in evaluating the credibility of pain testimony after 19 a claimant produces objective medical evidence of an underlying impairment, an ALJ may not 20 reject a claimant’s subjective complaints based solely on a lack of medical evidence to fully 21 corroborate the alleged severity of pain.’” Ondracek v. Comm’r of Soc. Sec., No. 1:15-cv-01308- 22 SKO, 2017 WL 714374, at *8 (E.D. Cal. Feb. 22, 2017) (quoting Burch, 400 F.3d at 680). While 23 the ALJ reviewed Plaintiff’s medical history, the ALJ must be specific about what subjective 24 complaints are contradicted by which clinical observations in the record to satisfy the clear and 25 convincing reasons standard—the most demanding in social security cases. See Laborin v. 26 Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) (citing Brown-Hunter v. Colvin, 806 F.3d 487, 489, 27 494 (9th Cir. 2015)); Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 28 1999) (holding that an ALJ's determination that a claimant was not credible because his 1 “complaints are ‘inconsistent with clinical observations’ . . . could satisfy the requirement of a 2 clear and convincing reason for discrediting a claimant's testimony, except that the ALJ did not 3 specify what complaints are contradicted by what clinical observations.”). 4 The Government’s arguments in defense of the ALJ’s decision are unpersuasive. The 5 Government first argues Plaintiff made inconsistent statements regarding her symptoms, but the 6 ALJ did not identify any specific statements by Plaintiff that were contradictory. The Government 7 highlights that the Plaintiff received conservative treatment, but the ALJ only noted this fact 8 related to Plaintiff’s alleged headache disorder, not with respect to her eyes or anxiety and 9 depression. (AR 31). The Government also notes her mental impairments were treated with 10 medication, but the ALJ did not suggest Plaintiff’s medication and therapy history undermined 11 Plaintiff’s claims as the treatment notes showed “less than ideal control” over her ailments. The 12 Government also contends Plaintiff did not require hospitalizations for her mental health, but the Ninth 13 Circuit has held that “[h]ospitalization is not required to show that mental health conditions such as 14 PTSD, OCD, and anxiety are disabling from employment.” Schiaffino v. Saul, 799 F. App'x. 473, 476 15 (9th Cir. Jan. 9, 2020). 16 The Court further finds that the ALJ’s error was not harmless. The VE testified that a 17 person who needed to rest her eyes for three minutes every 15 minutes would be too off-task to 18 maintain employment. (AR 71-72). Based on this testimony alone, the Court cannot say this error 19 was “inconsequential,” because if Plaintiff’s subjective complaints are to be credited, she would 20 be presumptively disabled according to the VE’s testimony. 21 3. The ALJ’s Error Warrants Remand for Further Proceedings 22 Where the ALJ commits an error and that error is not harmless, the “ordinary . . . rule” is 23 “to remand to the agency for additional investigation or explanation.” Treichler, 775 F.3d at 1099 24 (citations omitted). The Ninth Circuit recognized a limited exception to this typical course where 25 courts “remand[] for an award of benefits instead of further proceedings.” Id. at 1100–01 26 (citations omitted); see also id. at 1100 (noting that this exception is “sometimes referred to as the 27 ‘credit-as-true’ rule”). In determining whether to apply this exception to the “ordinary remand 28 rule,” the court must determine, in part, whether (1) “the record has been fully developed;” (2) 1 “there are outstanding issues that must be resolved before a determination of disability can be 2 made;” and (3) “further administrative proceedings would be useful.” Id. at 1101 (citations 3 omitted). As to the last inquiry, additional “[a]dministrative proceedings are generally useful 4 where the record has not been fully developed, there is a need to resolve conflicts and ambiguities, 5 or the presentation of further evidence . . . may well prove enlightening in light of the passage of 6 time.” Id. (citations omitted). Ultimately, “[t]he decision whether to remand a case for additional 7 evidence or simply to award benefits is in [the court’s] discretion.” Swenson, 876 F.2d at 689 8 (citation omitted). 9 The undersigned finds that the “credit-as-true” exception to the “ordinary remand rule” is 10 inapplicable in this case because additional administrative proceedings would be useful. See, e.g., 11 McGee o/b/o J.S.F, 2022 WL 4123980, at *6 (remanding for further proceedings including a de 12 novo hearing and new decision). The ALJ is, upon remand, to consider all of the relevant medical 13 evidence, including Plaintiff’s subjective complaints, in assessing Plaintiff’s RFC. If the ALJ 14 chooses to discount these complaints, the ALJ must provide specific, clear and convincing reasons 15 they have chosen to do so. 16 D. The ALJ Did Not Fail to Consider Whether Plaintiff’s Physical and Mental 17 Impairments, In Combination, Met or Equaled a Listing 1. Legal Standard 18 At the third step of the sequential disability evaluation process, the ALJ must evaluate the 19 claimant's impairments to see if they meet or equal any of the impairments listed in 20 C.F.R. Part 20 404, Subpart P, Appendix 1 (the “Listings”). Tackett, 180 F.3d at 1098. The Listings, set forth by 21 the Commissioner, “define impairments that would prevent an adult, regardless of his age, 22 education, or work experience, from performing any gainful activity, not just ‘substantial gainful 23 activity.’” Sullivan v. Zebley, 493 U.S. 521, 532 (1990) (citations omitted) (emphasis in original). 24 At Step Three of the sequential evaluation, Plaintiff bears the burden of demonstrating that his 25 impairment meets or equals a Listing. Burch, 400 F.3d at 683. 26 For a claimant's impairment to meet a listing, it must, for a period of 12 continuous 27 months, “meet all of the specified medical criteria. An impairment that manifests only some of 28 1 those criteria, no matter how severely, does not qualify.” Sullivan, 493 U.S. at 530 (citations 2 omitted) (emphasis in original); see also Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 1985); 20 3 C.F.R. §§ 404.1525(d), 416.925(d) (“To meet the requirements of a listing, [the claimant] must 4 have a medically determinable impairment(s) that satisfies all of the criteria in the listing.”); 20 5 C.F.R. pt. 404, subpt. P, app'x. 1 (stating the 12-month rule). Alternatively, a claimant can qualify 6 for benefits by showing that their unlisted impairment, or combination of impairments, is 7 “equivalent” to a listed impairment by presenting “medical findings equal in severity to all the 8 criteria for the one most similar impairment.” Sullivan, 493 U.S. at 531 (citations omitted); see 9 also Marcia v. Sullivan, 900 F.2d 172, 175–76 (9th Cir. 1990). 10 2. Analysis 11 Plaintiff contends the ALJ failed to consider whether Plaintiff’s physical or mental 12 impairments, when considered together, equaled the criteria listings 12.04 (depressive, bipolar and 13 related disorders) and 12.06 (anxiety and obsessive-compulsive disorders) and “erred as a matter of 14 law in isolating the effects of [Plaintiff’s] physical impairments from the effects of her mental 15 impairments when considering whether [Plaintiff’s] conditions met or equaled a listed.” (Doc. 14-23 16 at 25-26). As the Government notes, this argument ignores the text of the ALJ’s decision, which 17 states, “The severity of the claimant’s mental impairments, considered singly and in combination, 18 do not meet or medically equal the criteria of listings 12.04 and 12.06.” (AR 28). The ALJ then 19 made findings related to the specific listings that Plaintiff named, though Plaintiff does not attempt 20 to undermine these findings. (AR 28). 21 Plaintiff’s sole argument is that the ALJ did not consider her impairments in combination, 22 but the ALJ did just that. Plaintiff carries the burden to demonstrate her impairments equal a 23 Listing’s criteria, and she does not attempt to do so. No further argument is provided or otherwise 24 discernible. The Court finds the ALJ did not err in this respect. 25 E. The ALJ Did Not Otherwise Err at Step Five or Related to the RFC 26 1. Legal Standard 27 An RFC is “an assessment of an individual’s ability to do sustained work-related physical 28 1 and mental activities in a work setting on a regular and continuing basis.” Social Security Ruling 2 (“SSR”) 96-8p, 1996 WL 374184, at *1 (1996); see also 20 C.F.R. § 416.945(a). It reflects the 3 most that a claimant can do despite their limitations. SSR 96-8p, 1996 WL 374184, at *1. In 4 formulating the RFC, the ALJ must account for all the claimant’s medically determinable 5 impairments, including those that are not “severe,” and evaluate “all of the relevant medical and 6 other evidence.” 20 C.F.R. § 416.945(a); see also Valentine v. Comm’r Soc. Sec. Admin., 574 7 F.3d 685, 690 (9th Cir. 2009) (holding that “an RFC that fails to take into account a claimant’s 8 limitations is defective”). Therefore, an ALJ errs when she provides an incomplete RFC ignoring 9 “significant and probative evidence.” Hill v. Astrue, 698 F.3d 1153, 1161-2 (9th Cir. 2012). 10 An RFC assessment is ultimately an administrative finding reserved to the Commissioner. 11 20 C.F.R. § 416.946. The RFC does not need to directly correspond to a specific medical 12 opinion; rather, “the ALJ is responsible for translating and incorporating clinical findings into a 13 succinct RFC.” Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015); see 14 also Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (noting the ALJ’s 15 responsibility to weigh conflicting medical evidence and translate accepted medical opinions into 16 “concrete restrictions”). The ALJ’s RFC assessment should be affirmed if the ALJ has applied the 17 proper legal standard and their decision is supported by substantial evidence in the record. Bayliss 18 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 19 2. Analysis 20 Plaintiff makes two arguments suggesting the ALJ erred in determining the Plaintiff’s 21 RFC: (1) the ALJ relied on selective facts and looked only to objective findings (as opposed to the 22 overall record) and (2) the ALJ did not factor the Plaintiff’s non-severe impairments into her RFC. 23 (Doc. 14-23 at 26-27). Plaintiff’s first argument is a recitation of its argument that the ALJ erred 24 by failing to credit her subjective complaints, which the Court has already addressed. 25 The Court finds, however, the ALJ did not err by failing to incorporate Plaintiff’s 26 nonsevere impairments into her RFC. Plaintiff puts forth various conclusory allegations, none of 27 which are founded in the ALJ opinion. For instance, Plaintiff states that “the ALJ did not consider 28 . . . the effect that simply having or experiencing symptoms related to [Plaintiff’s] ‘non-severe’ 1 impairments had on [Plaintiff’s] mental state,” (Doc. 14-23 at 26), even though the opinion itself 2 states the ALJ considered all of Plaintiff’s symptoms (AR 29). If Plaintiff takes issue with the 3 quality of the ALJ’s reasoning, she does not explain how or why the reasoning is inadequate. 4 Plaintiff has failed to identify any specific limitations the ALJ failed to include, and she does not 5 explain how the RFC ignores “significant and probative evidence.” Hill v. Astrue, 698 F.3d 1153, 6 1161-2 (9th Cir. 2012). 7 F. Plaintiff Waived Any Arguments Related to the VE’s Job Approximations 8 Plaintiff also contends the jobs listed by the VE no longer exist as the DOT describes them, 9 and “because the ALJ found that [Plaintiff] is limited to unskilled work (AR 34), she is necessary 10 disabled from performing the occupations as they are performed in current times.” (Doc. 14-23 at 11 28-30). The Government raises two points: (1) the Plaintiff waived this argument by failing to 12 challenge the DOT job descriptions during the administrative hearing or to brief the issue before 13 the Appeals Council, and (2) the O*Net searches Plaintiff provides do not meaningfully rebut the 14 VE’s testimony. (Doc. 17 at 28). The Court agrees with the Government and finds Plaintiff has 15 waived this argument. 16 Plaintiff did not raise this issue before the ALJ or the Appeals Council, thereby waiving 17 the argument. Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017) (“We now hold that when 18 a claimant fails entirely to challenge a vocational expert's job numbers during administrative 19 proceedings before the agency, the claimant waives such a challenge on appeal, at least when that 20 claimant is represented by counsel.”). Therefore, the Court declines to address Plaintiff’s 21 argument. 22 V. FINDINGS AND RECOMMENDATIONS 23 For the reasons explained herein, IT IS HEREBY RECOMMENDED that: 24 1. Plaintiff’s motion for summary judgment (Doc. 14) be GRANTED; 25 2. Defendant’s cross-motion for summary judgment (Doc. 17) be DENIED; 26 3. This matter be REMANDED for further proceedings consistent with this decision; 27 and 28 4. The Clerk of the Court be DIRECTED to enter judgment in favor of Plaintiff 1 Lorena Macias, and against Defendant Commissioner of Social Security, and to CLOSE this 2 action. 3 These findings and recommendations are submitted to the District Judge assigned to this 4 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 5 (14) days of service of this recommendation, any party may file written objections to these 6 findings and recommendations with the Court and serve a copy on all parties. Such a document 7 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 8 The District Judge will review the Magistrate Judge’s findings and recommendations 9 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 10 the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 11 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 IT IS SO ORDERED. 13 14 Dated: January 4, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28