(SS) Clark v. Commissioner of Social Security

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 JODI CLAIRE CLARK, Case No. 1:22-cv-00227-CDB (SS) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO FILE OUT OF TIME REPLY, 13 v. DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND 14 COMMISSIONER OF SOCIAL SECURITY, AFFIRMING DECISION OF COMMISSIONER OF SOCIAL 15 Defendant. SECURITY1 16 (Docs. 15, 22, 23) [18] Plaintiff Jodi Claire Clark (“Plaintiff”) seeks judicial review of a final decision of the [19] Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for [20] disability benefits under the Social Security Act. (Doc. 1). The matter is currently before the [21] Court on the parties’ initial briefs, which were submitted without oral argument, and Plaintiff’s [22] request to file an untimely reply. (Docs. 15, 22, 23). Upon review of the Administrative Record [23] (“AR”) and the parties’ briefs, the Court finds and rules as follows. [24] I. PLAINTIFF’S MOTION TO FILE OUT OF TIME REPLY [25] On May 23, 2022, the Court entered a scheduling order which, of relevance, provided that [27] 1 Based on the parties’ expression of consent, on October 18, 2022, this action was reassigned to a U.S. 1 “[w]ithin 15 days after filing of defendant’s brief, the plaintiff shall file the optional reply brief.” 2 (Doc. 11 at 2). The Commissioner filed his brief on December 20, 2022 (Doc. 22), such that any 3 reply was due on or before January 4, 2023. Almost a year after this deadline, on December 29, 4 2023, Plaintiff moved “for permission to file out of time and for an extension of time to file her 5 Reply Brief in accordance with Local Rule 261(d).”2 (Doc. 23 at 1). Plaintiff represents that her 6 “counsel’s paralegal entered the due date for Plaintiff’s reply into counsel’s firm’s scheduling 7 software erroneously, setting the date as December 30, 2023 instead of December 30, 2022, in 8 accordance with the firm’s policy of setting due dates early.” (Id.). Plaintiff further represents 9 that “[t]he Commissioner takes no position on this request and defers to the Court’s judgment.” 10 (Id. at 1-2). 11 Where, as here, an act must be done within a specified time, a “court may, for good cause, 12 extend the time” “on motion made after the time has expired if the party failed to act because of 13 excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). In determining whether delay is due to excusable 14 neglect, the court is to consider the danger of prejudice to the non-moving party, the length of 15 delay and impact upon the proceedings, the reason for the delay including whether it was within 16 the reasonable control of the moving party, and whether the movant acted in good faith. Pioneer 17 Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993); Pincay v. 18 Andrews, 389 F.3d 853, 855 (9th Cir. 2004). 19 Here, while Plaintiff provides the reason for the delay, she wholly fails to address the 20 other relevant factors in her two-paragraph motion. (See Doc. 23). It is within the Court’s 21 discretion to deny the motion based on this failure alone. See Bateman v. U.S. Postal Service, [22] 231 F.3d 1220, 1224 (9th Cir. 2000) (“The court would have been within its discretion if it 23 spelled out the equitable test and then concluded that Emeziem had failed to present any evidence 24 relevant to the four factors.”). Further, the Court finds the Pioneer factors weigh against granting 25 an extension because while there is no indication Plaintiff acted in bad faith or that the [26] 2 Plaintiff’s citation to Local Rule 261(d) is confusing given that the Rule’s title specifically indicates it 27 applies in “non-social security cases.” Further, the scheduling order indicates any requests for modification of the briefing schedule should be made in accordance with Local Rule 144(d). (Doc. 11 at 1 Commissioner would be prejudiced, the Court declines to set a precedent establishing that the 2 negligent calendaring error is sufficient to establish excusable neglect here given the one-year 3 delay was substantial and the reason for the delay was entirely within Plaintiff’s counsel’s 4 control. See Hoy v. Yamhill Cnty., 693 F. App’x 664, 664 (9th Cir. 2017) (plaintiff’s “counsel’s 5 failures are attributable to [plaintiff]” in considering Pioneer factors) (citing Pioneer, 507 U.S. at 6 396-97); see also Wystrach v. Ciachurski, 267 F. App’x 606, 607 (9th Cir. 2008) (affirming 7 district court’s determination that “length of delay in responding to [a] motion—more than 100 8 days—and the reason for the delay—counsel’s failure to enter the response deadline in his 9 calendaring system—outweighed the lack of prejudice to defendants caused by the delay and 10 plaintiff’s good faith”). Thus, Plaintiff’s motion for leave is denied.3 11 II. SUBSTANTIVE BACKGROUND 12 A. Administrative Proceedings and ALJ’s Decision 13 Plaintiff filed a Title II application for disability insurance benefits on May 31, 2019. (AR 14 237-38). Plaintiff’s application was denied initially and upon reconsideration, and Plaintiff 15 requested a hearing before an administrative law judge (“ALJ”). (AR 107-47, 163-64). On 16 December 4, 2020, ALJ Scot Gulick held a hearing, during which Plaintiff, represented by 17 counsel, and an independent vocational expert testified. (AR 34-67). The ALJ issued his 18 decision on January 26, 2021, finding Plaintiff not disabled. (AR 16-27). On January 5, 2022, 19 the Appeals Council declined Plaintiff’s request for review. (AR 1-3). 20 In his decision, the ALJ engaged in the five-step sequential evaluation process set forth by 21 the Social Security Administration. 20 C.F.R. §§ 404.1520 (a), 416.920(a). As an initial matter, 22 the ALJ concluded Plaintiff’s date last insured was September 30, 2018, such that she must 23 establish disability on or before that date to be entitled to benefits. (AR 17). At step one, the ALJ 24 found Plaintiff had not engaged in substantial gainful activity between December 31, 2016, the 25 amended alleged onset date, and September 30, 2018. (AR 19). At step two, the ALJ determined [26] 3 However, consideration of the proposed reply would not alter the Court’s overall analysis and conclusion 27 that the Commissioner’s decision should be affirmed. The reply largely renews arguments Plaintiff advanced in her summary judgment motion, with the exception of a new argument concerning the reasoning level required of the jobs identified by the ALJ at Step Five (Doc. 23-2 at 2) -- an argument that 1 that Plaintiff had the following severe impairments: “Carpal tunnel syndrome, small fiber 2 neuropathy, degenerative disc disease of spine with lumbar and cervical radiculopathy, 3 degenerative joint disease and popliteal cysts in the bilateral knees, and depressive disorder with 4 anxious distress.” (AR 19). At step three, the ALJ found that Plaintiff did not have an 5 impairment, or combination of impairments, that met or medically exceeds the severity of one of 6 the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 19-21). 7 The ALJ determined Plaintiff had the residual functional capacity (“RFC”) to perform 8 light work except she was limited to “lifting 20 pounds occasionally and 10 pounds frequently; 9 carrying 20 pounds occasionally and 10 pounds frequently; sitting for 6 hours, standing for 6 10 hours, and walking for 6 hours of an 8 hour day.” (AR 21). Additionally, the ALJ provided 11 Plaintiff “can handle items frequently with the left hand, and can handle items frequently with the 12 right hand;” “has fingering limitations frequently with the left hand, and has fingering limitations 13 frequently with the right hand;” and “can climb ramps and stairs occasionally, climb ladders, 14 ropes, or scaffolds occasionally, balance frequently, stoop occasionally, kneel occasionally, 15 crouch occasionally, and crawl occasionally.” (AR 21). As to Plaintiff’s mental capabilities, the 16 ALJ found “[s]he is able to perform simple, routine and repetitive tasks but not at a production 17 rate pace, interact with supervisors occasionally, interact with coworkers occasionally, and 18 interact with the public occasionally.” (AR 21-22). 19 In formulating the RFC, the ALJ considered Plaintiff’s disability allegations and symptom 20 testimony but concluded her statements concerning the intensity, persistence, and limiting effects 21 of her symptoms were not consistent with the record. (AR 22). The ALJ considered the medical 22 record and found the State agency consultants’ opinions—which concluded Plaintiff remained 23 capable of performing light work, essentially, with additional nonexertional limitations including 24 frequent handling and fingering bilaterally—“persuasive to the extent they are consistent with the 25 RFC because they are well-supported and generally consistent with the record.” (AR 22-23). 26 Similarly, the ALJ found Dr. Roger Izzi’s opinion concerning Plaintiff’s mental abilities 27 “persuasive to the extent it is consistent with the RFC because it is well-supported and consistent 1 “could manage her own funds and consistently perform simple and repetitive tasks with moderate 2 social limitations, which is generally consistent with the RFC but not with allegations of 3 additional limitations.” (AR 25 citing AR 1247). 4 At step four, the ALJ found that Plaintiff was unable to perform any of her past relevant 5 work. (AR 25). Finally, at step five, the ALJ found that, per testimony of the vocational expert, 6 Plaintiff could perform jobs that exist in significant numbers in the national economy, such as 7 collator operator, router, and price marker. (AR 26). Thus, Plaintiff had not been under a 8 disability from December 31, 2016, through September 30, 2018. (AR 27). 9 B. Medical Record and Hearing Testimony 10 The relevant hearing testimony and medical record were reviewed by the Court and will 11 be referenced below as necessary to this Court’s decision. 12 III. STANDARD OF REVIEW 13 A district court’s review of a final decision of the Commissioner of Social Security is 14 governed by 42 U.S.C. § 405 (g). The scope of review under § 405(g) is limited; the 15 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 16 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 17 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 18 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 19 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 20 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 21 consider the entire record as a whole rather than searching for supporting evidence in 22 isolation. Id. 23 The court will review only the reasons provided by the ALJ in the disability determination 24 and may not affirm the ALJ on a ground upon which he did not rely. Social Security Act § 205, [25] 42 U.S.C. § 405 (g). In reviewing a denial of benefits, a district court may not substitute its 26 judgment for that of the Commissioner. “The court will uphold the ALJ’s conclusion when the 27 evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1 of an error that is harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] 2 ultimate nondisability determination.” Id. (quotation and citation omitted). The party appealing 3 the ALJ’s decision generally bears the burden of establishing that it was harmed. Shinseki v. 4 Sanders, 556 U.S. 396, 409-10 (2009). 5 A claimant must satisfy two conditions to be considered “disabled” and eligible for 6 benefits within the meaning of the Social Security Act. First, the claimant must be “unable to 7 engage in any substantial gainful activity by reason of any medically determinable physical or 8 mental impairment which can be expected to result in death or which has lasted or can be 9 expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 10 1382c(a)(3)(A). Second, the claimant’s impairment must be “of such severity that he is not only 11 unable to do his previous work[,] but cannot, considering his age, education, and work 12 experience, engage in any other kind of substantial gainful work which exists in the national 13 economy.” 42 U.S.C. § 1382c(a)(3)(B). 14 The Commissioner has established a five-step sequential analysis to determine whether a 15 claimant satisfies the above criteria. See 20 C.F.R. § 404.1520 (a)(4)(i)-(v); 20 C.F.R. § 16 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work activity. 20 17 C.F.R. § 404.1520 (a)(4)(i); 20 C.F.R. § 416.920 (a)(4)(i). If the claimant is engaged in 18 “substantial gainful activity,” the Commissioner must find that the claimant is not disabled. 20 19 C.F.R. § 404.1520 (b); 20 C.F.R. § 416.920 (b). 20 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 21 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 22 C.F.R. § 404.1520 (a)(4)(ii); 20 C.F.R. § 416.920 (a)(4)(ii). If the claimant suffers from “any 23 impairment or combination of impairments which significantly limits [his or her] physical or 24 mental ability to do basic work activities,” the analysis proceeds to step three. 20 C.F.R. § 25 404.1520(c); 20 C.F.R. § 416.920 (c). If the claimant’s impairment does not satisfy this severity 26 threshold, however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 27 404.1520(c); 20 C.F.R. § 416.920 (c). 1 recognized by the Commissioner to be so severe as to preclude a person from engaging in 2 substantial gainful activity. 20 C.F.R. § 404.1520 (a)(4)(iii); 20 C.F.R. § 416.920 (a)(4)(iii). If the 3 impairment is as severe or more severe than one of the enumerated impairments, the 4 Commissioner must find the claimant disabled and award benefits. 20 C.F.R. § 404.1520 (d);20 5 C.F.R. § 416.920 (d). 6 If the severity of the claimant’s impairment does not meet or exceed the severity of the 7 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 8 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 9 ability to perform physical and mental work activities on a sustained basis despite his or her 10 limitations ( 20 C.F.R. § 404.1545 (a)(1); 20 C.F.R. § 416.945 (a)(1)), is relevant to both the fourth 11 and fifth steps of the analysis. 12 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 13 claimant is capable of performing work that he or she has performed in the past (past relevant 14 work). 20 C.F.R. § 404.1520 (a)(4)(iv); 20 C.F.R. § 416.920 (a)(4)(iv). If the claimant is capable 15 of performing past relevant work, the Commissioner must find that the claimant is not 16 disabled. 20 C.F.R. § 404.1520 (f); 20 C.F.R. § 416.920 (f). If the claimant is incapable of 17 performing such work, the analysis proceeds to step five. 18 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 19 claimant is capable of performing other work in the national economy. 20 C.F.R. § 20 404.1520(a)(4)(v); 20 C.F.R. § 416.920 (a)(4)(v). In making this determination, the 21 Commissioner must also consider vocational factors such as the claimant’s age, education, and 22 past work experience. 20 C.F.R. § 404.1520 (a)(4)(v); 20 C.F.R. § 416.920 (a)(4)(v). If the 23 claimant is capable of adjusting to other work, the Commissioner must find that the claimant is 24 not disabled. 20 C.F.R. § 404.1520 (g)(1); 20 C.F.R. § 416.920 (g)(1). If the claimant is not 25 capable of adjusting to other work, the analysis concludes with a finding that the claimant is 26 disabled and is therefore entitled to benefits. 20 C.F.R. § 404.1520 (g)(1); 20 C.F.R. § 27 416.920(g)(1). [1] 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 2 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 3 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960 (c)(2); Beltran 4 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 5 IV. ISSUES AND ANALYSIS 6 In seeking judicial review of the Commissioner’s final decision denying her application, 7 Plaintiff raises the following issues: 8 1. The ALJ failed to adequately develop the record with mental health opinion evidence 9 in light of the significant test results from the consultative examination that remained 10 unexplained. (Doc. 15-1 at 1). 11 2. The ALJ failed to adequately develop the record with physical health opinion evidence 12 in light of the ambiguity in the onset of her right S1 nerve root displacement. (Id.). 13 A. Whether the ALJ Failed to Develop the Record Concerning Plaintiff’s Mental 14 Impairments 15 Plaintiff’s first argument is that a “gap” in Dr. Izzi’s opinion triggered the ALJ’s duty to 16 further develop the record. Plaintiff’s challenge concerns the report from an October 8, 2019 17 psychological evaluation by Dr. Izzi. (AR 1244). As part of the evaluation, Dr. Izzi administered 18 the Wechsler Adult Intelligence Scale-IV (“WAIS-IV”) and Wechsler Memory Scale-IV (“WMS19 IV”). (AR 1246). (AR 1246). Dr. Izzi indicated Plaintiff’s WAIS-IV results suggested her 20 “present level of intellectual functioning [was] within the Borderline Range to Average Range” 21 with subtest scores ranging from the “Extremely Low Range to Average Range.” (AR 1246). 22 Additionally, Plaintiff was “able to recall six digits forward and four digits backward.” (AR 23 1246). As to the WMS-IV results, Dr. Izzi observed that the “test results suggest deficits in 24 memory functions.” (AR 1247). 25 In providing a functional assessment, Dr. Izzi explained: 26 The results of limited psychological testing have been discussed in detail in a previous section. The available medical records were 27 reviewed. There were no objective medical records available for review that would support the claimant’s subjective complaints. 1 medical history, which would be best addressed by the appropriate medical specialist. chronic pain is a predominant feature. His [sic] 2 mood disorder will fluctuate as her subjective perception of pain fluctuates. There is likely to be some depression secondary to her 3 awareness of loss of functional ability. 4 Clinical interview indicates that the claimant is not having any difficulty caring for basic hygiene. The present evaluation suggests 5 that the claimant does appear capable of performing a simple and repetitive type task on a consistent basis over an eight-hour period. 6 Her ability to get along with peers or be supervised in work-like setting would be moderately limited. The claimant’s mood disorder 7 can be expected to fluctuate. Any significant fluctuation of mood may limit the claimant’s ability to perform a complex task on a 8 consistent basis over an eight-hour period. On a purely psychological basis, the claimant appears capable of responding to 9 usual work session situations regarding attendance and safety issues. On a purely psychological basis, the claimant appears 10 capable of dealing with changes in a routine work setting. 11 (AR 1247). Dr. Izzi also indicated Plaintiff appeared “capable of managing her own funds, as 12 suggested by the WAIS-IV results.” (AR 1247). The ALJ found Dr. Izzi’s opinion “persuasive 13 to the extent it is consistent with the RFC,” which included limitations to “simple, routine and 14 repetitive tasks but not at a production rate pace” and only occasional interaction with 15 supervisors, coworkers, and the public. (AR 21-22, 25). 16 Plaintiff argues “the ALJ only used Dr. Izzi’s opinion to inform [his] interpretation of the 17 record evidence (as to mental health)” but “Dr. Izzi’s opinion contains an apparent gap, for which 18 the ALJ needed clarification before finding an RFC capable of support by substantial evidence.” 19 (Doc. 15-1 at 5). Plaintiff points to her performance on the WMS-IV and asserts that Dr. Izzi 20 “never indicated what functional consequences, if any, resulted from [Plaintiff’s] rather severe 21 deficits.” (Id. at 6). Thus, Plaintiff’s position is that the ALJ should have sought an opinion 22 clarifying the impact of Plaintiff’s low WMS-IV scores. (Id. at 7). 23 The Commissioner responds that “Plaintiff provides no meaningful explanation for why 24 the Court should second-guess Dr. Izzi’s assessment of his own examination findings and then 25 use that to find that the ALJ erred.” (Doc. 22 at 5). Further, the Commissioner argues that 26 contrary to Plaintiff’s argument that the “ALJ’s failure to develop the record harmed her because 27 she testified that she had ‘memory issues,’” “[t]he only work-related ‘memory issues’ Plaintiff testified to involved trouble concentrating or focusing, and being late because she lost track of 1 time.” (Id.). Thus, the Commissioner’s position is that “[t]here was no evidentiary gap to fill, 2 Plaintiff was not harmed, and so the Court should affirm.”4 (Id.). 3 Generally, “[t]he claimant has the burden of proving that she is disabled.” Smolen v. 4 Chater, 80 F.3d 1273 , 1288 (9th Cir. 1996). However, “[t]he ALJ always has a ‘special duty to 5 fully and fairly develop the record and to assure that the claimant’s interests are considered … 6 even when the claimant is represented by counsel.’” Celaya v. Halter, 332 F.3d 1177, 1183 (9th 7 Cir. 2003) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). Further, “[w]hen a 8 claimant is not represented by counsel, this responsibility is heightened.” Id. This is because 9 “Social Security proceedings are inquisitorial rather than adversarial.” Schiaffino v. Saul, 799 F. 10 App’x 473, 476 (9th Cir. 2020) (quoting Sims v. Apfel, 530 U.S. 103, 111-12 (2000)). In 11 particular, the ALJ’s duty to develop the record is heightened where the claimant may be 12 mentally ill and thus unable to protect her own interests. Tonapetyan v. Halter, 242 F.3d 1133 , 13 1150 (9th Cir. 2001) (citing Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 1992)). 14 Nevertheless, “[a]n ALJ’s duty to develop the record further is triggered only when there 15 is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the 16 evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); Bayliss v. Barnhart, 427 17 F.3d 1211, 1217 (9th Cir. 2005) (citing 20 C.F.R. §§ 404.1512 (e), 416.912(e)); see Brown v. 18 Berryhill, 697 F. App’x 548, 549 (9th Cir. 2017) (“Because the record evidence was not 19 ambiguous and the record was sufficient to allow for proper evaluation of the evidence, the ALJ 20 was not required to re-contact Brown’s doctors or further develop the record.”). 21 Based on a review of the record, the Court determines the ALJ here did not have a duty to 22 develop the record further. The evidence was not ambiguous or inadequate for proper evaluation 23 of Plaintiff’s mental abilities. Contrary to Plaintiff’s argument, there was no “gap” in Dr. Izzi’s [24] 25 4 In her proposed reply, Plaintiff argues that neither Dr. Izzi’s opinion nor the ALJ’s decision offer meaningful analysis of the impact of the WMS-IV results showing significant memory deficits on her 26 abilities. (Doc. 23-2 at 1-2). Plaintiff also argues, for the first time, that “there is further harm” because “[a]ll of the jobs, which the ALJ found to be available at Step Five, require a GED Reasoning Level of 2, 27 which denotes a job, wherein the employee will, ‘[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions.’” (Id. at 2). Consideration of these arguments would 1 opinion because such set forth the relevant test results; explained that the results indicated 2 Plaintiff’s intellectual functioning was within the “Borderline Range to Average Range” and she 3 had “deficits in memory functions;” and concluded such supported that Plaintiff would be 4 moderately limited in her social interactions at work and should be limited to simple, repetitive 5 type tasks. (AR 1247). The ALJ relied on the test results as interpreted by Dr. Izzi and adopted 6 the corresponding functional limitations from the opinion. (See AR 23-25). Thus, substantial 7 evidence supports the ALJ’s decision, and he had no duty to further develop the record. 8 B. Whether the ALJ Failed to Develop the Record Concerning Plaintiff’s S1 Nerve 9 Root Displacement 10 Plaintiff next argues the ALJ also failed to develop the record concerning her physical 11 health. While Plaintiff words the second issue as challenging the ALJ’s failure to develop the 12 record regarding her physical abilities, the actual arguments advanced indicate she is challenging 13 whether substantial evidence supports the ALJ’s determination that the State agency medical 14 opinions were consistent with the record. (See Doc. 15-1 at 8 (“The ALJ’s analysis is flawed, and 15 this materially tainted his consistency analysis for the opinion evidence, leaving the RFC without 16 the support of substantial evidence.”); see id. at 9 (“These misevaluations are harmful as the ALJ 17 explicitly relied on the imaging and electrodiagnostic testing to find the PAMFs to be consistent 18 under 20 C.F.R. § 404 .1520c(c)(2).”). An ALJ is required to “articulate how [he] considered the 19 medical opinions and prior administrative medical findings” in adjudicating a claim, with the 20 consistency and supportability of the opinion being the most important factors. 20 C.F.R. § 21 404.1520c(a). “The more consistent a medical opinion(s) or prior administrative medical 22 finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, 23 the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 24 C.F.R. § 404 .1520c(c)(2). 25 Here, after a review of the medical records, the State agency medical consultants opined 26 that Plaintiff could perform light work except that she could only occasionally lift or carry 20 27 pounds; frequently lift or carry 10 pounds; sit for 6 hours in an 8-hour workday; stand and/or 1 scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; and frequently handle and finger 2 bilaterally. (AR 123-24, 142-43). As explanation for these limitations, the opinions indicated the 3 record revealed “intermittent C-spine abnls w/o recent abnls, L-Spine and b/l hip abnls 4 throughout more recent exams” and normal gait throughout. (AR 124, 143). The ALJ found 5 these opinions persuasive, noting that they were “consistent with the record, including X-rays and 6 MRIs, electrodiagnostic testing, the claimant’s conservative treatment history prior to the date last 7 insured, and clinical signs found throughout the record, including findings of normal gait.” (AR 8 24). 9 Based on a footnote where “the ALJ commented that imaging from February 13, 2020 10 identified ‘right S1 nerve root’ displacement, that this finding occurred nearly 18 months after the 11 date last insured, and that there is insufficient evidence prior to the date last insured to presume 12 this was present before that date,” Plaintiff argues the ALJ’s analysis of the 2020 MRI, an earlier 13 May 16, 2018 MRI, and a 2017 electrodiagnostic test was “flawed, and this materially tainted his 14 consistency analysis for the opinion evidence, leaving the RFC without the support of substantial 15 evidence.” (Doc. 15-1 at 8). As to the MRIs, Plaintiff argues that the images “do not show 16 progression of Plaintiff’s issue” but rather “show consistent results” since one is from the period 17 at issue and the other is from a period after Plaintiff was found disabled on a separate application. 18 (Id. at 8-9). Plaintiff also argues “the ALJ’s layperson valuation of the electrodiagnostic testing 19 appears to have been too great” because although the testing “showed no radiculopathy,” doctors 20 continued “to assess a primary diagnosis of lumbar radiculopathy” and prescribe Norco based on 21 Plaintiff’s symptomology reports. (Id. at 9). Plaintiff’s position is that these “misevaluations are 22 harmful as the ALJ explicitly relied on the imaging and electrodiagnostic testing” in addressing 23 the consistency of the State agency medical opinions. (Id. at 9-10). 24 The Commissioner responds that “the S1 nerve root compression did not appear until long 25 after Plaintiff’s date last insured, so it was reasonable for the ALJ to determine that it was not 26 present in the four months following the initial MRI” and “Plaintiff’s alternative view of the 27 evidence proves nothing.” (Doc. 22 at 6). As to the electrodiagnostic testing, the Commissioner 1 lumbar radiculopathy” because he concluded such was a severe impairment. (Id.). Thus, the 2 Commissioner argues the ALJ did not err in considering this evidence but, even if he did, Plaintiff 3 was not harmed because “[t]he MRI and electrodiagnostic findings were not the only, or even the 4 majority, of the evidence the ALJ found consistent with the prior administrative medical findings, 5 which included other imagining findings, Plaintiff’s conservative treatment history, and 6 unremarkable clinical examination findings.”5 (Id.at 6-7). 7 Based on the ALJ’s discussion of the record and articulation of his treatment of the State 8 agency medical opinions, the Court finds no reversible error. The ALJ correctly noted the “2017 9 electrodiagnostic testing was ‘normal’ with no evidence of large fiber peripheral neuropathy, 10 lumbar radiculopathy, or any other nerve entrapment neuropathies.” (AR 23). This is an accurate 11 summary of the cited record, which indicates: “Normal bilateral lower needle EMG and nerve 12 conduction study; there is no electrodiagnostic evidence of large fiber peripheral polyneuropathy, 13 lumbar radiculopathy, or any other nerve entrapment neuropathies on this study.” (AR 1116). 14 Contrary to Plaintiff’s assertion that the ALJ placed too great a weight on this study, the ALJ’s 15 discussion shows that the lack of objective evidence to support neuropathy was just one factor the 16 ALJ considered in determining the State agency opinions were consistent with the record. The 17 ALJ also cited the “X-rays and MRIs, … the claimant’s conservative treatment history prior to 18 the date last insured, and clinical signs found throughout the record, including findings of normal 19 gait.” (AR 24). 20 Critically, as Plaintiff indicates in her proposed reply, the specific 2018 and 2020 MRIs 21 she referenced in her initial brief were incorrectly included in the record as they involve a patient 22 other than Plaintiff. (See AR 1370-92). Because these MRIs are not specific to the Plaintiff, they 23 certainly cannot alone amount to substantial evidence to support the ALJ’s decision. However, 24 the ALJ only specifically discussed these MRIs in concluding there was insufficient evidence to 25 support a S1 nerve root displacement was present as of the date last insured, a conclusion that is [26] 27 5 In her proposed reply, Plaintiff asserts “[t]he ALJ did not provide a sufficiently detailed and accurate analysis of the prior administrative medical findings to support the ALJ’s reliance on them.” (Doc. 23-2 at 1 | still accurate given Plaintiff fails to cite any evidence supporting she ever experienced a S1 nerve 2 | root displacement. While the ALJ also included a citation to the 2018 MRI in a string cite, the 3 | preceding discussion discussed x-rays of the spine but MRIs of the knees. (See AR 23). The 4 | additional citations point to imaging results showing “[m]ild degenerative spurring and mildly 5 || straightened lordosis” and “[n]Jormal thoracic spine exam” with “[n]o significant degenerative 6 | intervertebral disk changes, no overt fractures or spinal cord abnormalities.” (See AR 23, citing 7 | AR 611, 774). Considering the additional evidence the ALJ cited, any reliance on the improperly 8 | included MRIs amounted to harmless error. See Hamm v. Saul, 804 F. App’x 810 , 811 (9th Cir. 9 | 2020) (affirming ALJ decision because “even assuming the other reasons proffered by the ALJ 10 | for rejecting [provider’s] opinions were erroneous, any error would be ‘inconsequential to the 11 ultimate nondisability determination’ because the ALJ offered specific and legitimate reasons for 12 | rejecting the opinions”) (quoting Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)). 13 Overall, the ALJ properly articulated his conclusion that the State agency opinions were 14 | consistent with the record and substantial evidence other than the improperly included MRIs 15 || supports that conclusion. Accordingly, no reversible error occurred. 16 V. CONCLUSION AND ORDER 17 For the reasons stated above, the Court ORDERS as follows: 18 1. Plaintiffs motion to file an out of time reply (Doc. 20) is DENIED; 19 2. Plaintiffs motion for summary judgment (Doc. 15) is DENIED; 20 3. The decision of the Commissioner is affirmed; and 21 4. The Clerk of Court shall enter judgment in favor of Defendant, terminate any deadlines, 22 and close this case. 23 | ITIS SO ORDERED. Dated: _ June 5, 2025 | by 25 UNITED STATES MAGISTRATE JUDGE