Joseph Pellegrini v. Kilolo Kijakazi

Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 1 of 14 Page ID #:659 [7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 JOSEPH P.,1 Case No. 5:21-cv-1075-GJS 12 Plaintiff 13 v. MEMORANDUM OPINION AND ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, [15] Defendant. [16] 17 I. PROCEDURAL HISTORY 18 Plaintiff Joseph P. (“Plaintiff”) filed a complaint seeking review of the 19 decision of the Commissioner of Social Security terminating his previously granted 20 Disability Insurance Benefits (“DIB”) awarded under Title II of the Social Security 21 Act. [Dkt. 1.] The parties filed consents to proceed before the undersigned United 22 States Magistrate Judge [Dkts. 11 and 12] and briefs addressing disputed issues in 23 the case [Dkt. 20 (“Pltf. Br.”) and Dkt. 24 (“Def. Br.”)]. The Court has taken the 24 parties’ briefing under submission without oral argument. For the reasons discussed 25 below, the Court finds that this matter should be affirmed. [26] 27 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party. [28] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 2 of 14 Page ID #:660 1 II. ADMINISTRATIVE DECISION UNDER REVIEW 2 Following a decision dated May 10, 2013, which is the comparison point 3 decision (“CPD”), Plaintiff began receiving disability benefits due to impairments 4 caused by a mood disorder. [AR 133.] Upon subsequent review, the Commissioner 5 found that Plaintiff’s impairments had medically improved such that he was able to 6 return to work and no longer disabled as of April 1, 2017. [AR 116, 142.] Plaintiff 7 requested reconsideration before a Disability Hearing Officer (“DHO”). [AR 123.] 8 On October 18, 2017, the DHO held a hearing and issued a decision upholding the 9 determination of Plaintiff’s medical improvement relating to his ability to work and 10 finding him “not disabled.” [AR 124-141.] Plaintiff appealed the DHO’s decision 11 and requested a hearing before an ALJ. [AR 145.] 12 On December 5, 2019, Plaintiff appeared via video and testified in a hearing 13 held before Administrative Law Judge Josephine Arno. [AR 11, 32 -62.] The ALJ 14 advised him of his right to representation at the outset and, after being so advised, 15 Plaintiff confirmed that he signed a waiver form indicating his desire to proceed 16 unrepresented. [AR 34.] Testimony was heard from Plaintiff, his mother, and a 17 vocational expert (“VE”). [AR 11, 33-34.] 18 In a decision dated September 25, 2020, the ALJ found Plaintiff’s 19 impairments had medically improved after the CPD such that he was no longer 20 disabled as of April 1, 2017. [AR 15.] After considering Plaintiff’s stated reasons 21 for disagreeing with the ALJ’s decision, the Appeals Council denied his request for 22 review, making the ALJ’s decision the final decision of the Commissioner. [AR 123 10.] This action followed. 24 III. GOVERNING STANDARD 25 Under 42 U.S.C. § 405 (g), the Court reviews the Commissioner’s decision to 26 determine if: (1) the Commissioner’s findings are supported by substantial 27 evidence; and (2) the Commissioner used correct legal standards. Carmickle v. 28 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, [2] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 3 of 14 Page ID #:661 [1] 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant 2 evidence as a reasonable mind might accept as adequate to support a conclusion.” 3 Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations 4 omitted); see also Hoopai, 499 F.3d at 1074 . 5 IV. DISCUSSION 6 Plaintiff argues the ALJ erred by: (1) failing to adequately advise him of his 7 right to representation; and (2) failing to develop the record. The Court addresses 8 Plaintiff’s contentions below and finds that reversal is not warranted. 9 1. Plaintiff’s Right to Representation 10 First, Plaintiff argues that he did not knowingly waive his right to 11 representation at the hearing before the ALJ. Specifically, Plaintiff contends that 12 although the ALJ verbally informed him that he had a right to be represented by 13 counsel, the ALJ never explained that he could obtain an attorney for little or no cost 14 even after Plaintiff repeatedly expressed that he did not obtain counsel because he 15 did not have the financial means to do so. (Pltf.’s Br. at 8-12.) According to 16 Plaintiff, the ALJ’s failure to “explain the availability of both free legal services and 17 contingency representation” at the administrative hearing failed to comply with the 18 waiver procedures established in the Commissioner’s Hearings, Appeals and 19 Litigation Manual (“HALLEX”). (Pltf.’s Br. at 9.) Defendant responds that 20 Plaintiff waived his right of representation on the record. Moreover, even if there 21 was no waiver, Plaintiff is not entitled to relief because HALLEX does not carry the 22 force of law and therefore it is not binding on the ALJ nor legally enforceable by the 23 Court. 24 A. Legal Standard 25 The Social Security Commissioner is required to notify claimants in writing 26 of their “options for obtaining attorneys [and] of the availability to qualifying 27 claimants of legal services organizations which provide legal services free of 28 charge.” 42 U.S.C. § 406 (c). The Ninth Circuit requires the Commissioner to make [3] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 4 of 14 Page ID #:662 1 an extra effort to ensure a claimant fully understands contingency arrangements in 2 cases of financial hardship. Roberts v. Comm’r of the SSA, 644 F.3d 931, 934 (9th 3 Cir. 2011). However, a claimant may waive his right to counsel if he received 4 information enabling him to make an informed decision. Vasquez v. Astrue, Case 5 No. EDCV 11-883-OP, 2012 U.S. Dist. LEXIS 21596 , 2012 WL 590019 , at *2 6 (C.D. Cal. Feb. 21, 2012) (finding claimant knowingly waived right to counsel). 7 In Roberts v. Comm’r of the Soc. Sec. Admin., the Ninth Circuit Court of 8 Appeals held that an ALJ is not required to provide any disclosures beyond those 9 contained in 42 U.S.C. § 406 (c) before obtaining a valid, informed waiver by a 10 claimant of his or her right to representation. 644 F.3d 931, 934 (9th Cir. 2011). 11 Section 406(c) requires the Commissioner to notify each claimant in writing “of the 12 options for obtaining attorneys to represent individuals in presenting their cases 13 before the Commissioner of Social Security” and to “advise the claimant of the 14 availability to qualifying claimants of legal services organizations which provide 15 legal services free of charge.” In reaching its holding that these were the only 16 required disclosures, the Ninth Circuit rejected the argument that an ALJ is required 17 to give claimants additional information and make additional assurances before 18 obtaining a waiver based on the Commissioner’s Hearings, Appeals and Litigation 19 Law Manual (“HALLEX”) I-2-6-52, “which states that the ALJ ‘should ensure on 20 the record’ that an unrepresented claimant ‘has been properly advised of the right to 21 representation and . . . is capable of making an informed choice about 22 representation.’” Roberts, 644 F.3d at 934 (quoting HALLEX I-2-6-52). The Court 23 rejected this argument because “HALLEX . . . does not ‘carry the force of law and 24 [is] not binding upon the agency.’” Id. (quoting Parra v. Astrue, 481 F.3d 742 , 749 25 (9th Cir. 2007)). 26 B. Hearing 27 The ALJ began the hearing by noting Plaintiff was not represented. [AR 33.] 28 This exchange between the ALJ and Plaintiff followed: [4] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 5 of 14 Page ID #:663 1 ALJ: So, you do – I want to explain to you that you have the right to have a 2 representative assist you with this hearing. You have the right to have somebody 3 who’s an attorney or not an attorney, but familiar with Social Security rules, all 4 right. Representatives are good in the sense that they can make sure that we have all 5 of your medical records, although if you tell me where you’ve been to the doctor, 6 we’ll work on getting those records now while we wait. Representatives are good 7 because they explain the rules, the process, about how this hearing all works, they 8 make legal arguments on your behalf, I mean, those are all good things about 9 representatives. If you’re interested in having a representative assist you with this 10 hearing, it’s your responsibility to find a representative. What my office can give 11 you is a one-page sheet that has the names and phone numbers of some 12 organizations, it’s–think of it as like a starting point like if you’re not sure how to 13 start going about finding a representative. It’s a–the sheet that you’re going to get is 14 a good starting point that you know you have some phone numbers, and you can 15 start making some calls. But ultimately, it is your responsibility to find a 16 representative if you want one. And it can be anybody that you choose. This 17 hearing will not be postponed again for that reason. So, when the case is 18 rescheduled, you come to the hearing and you still don’t have a representative, it 19 will not be rescheduled a second time for that reason. Okay. Do you understand 20 your right to representation? 21 CLMT: Yes. Yes, I actually can’t afford representation, so I already said I can 22 waive that, I can waive… 23 [AR 34.] 24 A similar exchange took place near the end of the hearing. 25 ALJ: So, this is what will happen. We’ll, you know, we’ll send a request for 26 medical records to the Eisenhower Medical Center, turn in the records that you have 27 here today so they can be added to your file and then turn in the form filled out 28 where you waive your right to representation. You will receive a brand-new hearing [5] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 6 of 14 Page ID #:664 1 notice in the mail with the new date and time for an in-person hearing, okay? 2 CLMT: Yes. I guess I’ve had some anxiety because of this hearing, is it 3 possible we just do it now because I don’t – I can’t afford the representation and I 4 don’t feel like it’s going to be more – more stressful for me to go through this 5 process again. 6 ALJ: We can, yeah, we can do the hearing now. That’s not a problem, it’s 7 just, by doing that, though, you’re giving up your right to an in-person hearing, is 8 that what you want? 9 … 10 Clmt: Well, yeah, I just—like I say, I’m—it’s—I’ve been so stressed out 11 about this whole process that I just, I almost feel like I just want to get it over with 12 just to get it done. And I mean, I brought all the medical information from all the 13 records from all the treatments I’ve had over the past year. 14 [AR 38-39.] 15 C. Discussion 16 Here, the Commissioner provided Plaintiff written notice of the right to 17 representation twice, initially on November 16, 2017, and again on September 10, 18 2019. [AR 149, 152-157, 164-171.] The November notice included a list of legal 19 services organizations he could contact for attorney referral services and/or free 20 legal help. [AR 152-157.] Indeed, Plaintiff concedes that the Commissioner 21 included an “SSA Publication [titled] Your Right to Representation” with his Notice 22 of Hearing.” (Pltf.’s Br. at 11.) Nevertheless, Plaintiff argues that “simply 23 including this pamphlet with the Notice of Hearing does not meet the standard set 24 forth in HALLEX.” (Pltf.’s Br. at 12.) According to Plaintiff, the ALJ was required 25 to inquire further because of his history of mental illness and his mistaken belief, as 26 demonstrated on the record, that legal representation required significant financial 27 resources. However, Plaintiff’s argument is unpersuasive. 28 As seen above, the binding case law in the Ninth Circuit states that no [6] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 7 of 14 Page ID #:665 1 disclosure is required regarding a claimant’s right to representation “other than the 2 disclosure required by § 406(c)” and allegations of non-compliance with HALLEX 3 do not affect the analysis. Roberts, 644 F.3d at 933-934 . Here, Plaintiff received a 4 pre-hearing written notice advising him, among other things, of his right to 5 representation. During the hearing, the ALJ again informed Plaintiff of his right of 6 representation, and he waived his right to representation. [See AR 31-32, 170-171.] 7 Thus, the ALJ provided all statutorily required disclosures before the hearing and 8 before Plaintiff signed the waiver form, thus effectuating a sufficient waiver of 9 representation pursuant to the Ninth Circuit Court of Appeals’ holding in Roberts. 10 Even when considering Plaintiff’s stated belief that his inability to pay would 11 prevent him from getting an attorney, the Court is satisfied there was nothing 12 improper about Plaintiff’s waiver of representation at the hearing as the written 13 notices together with the ALJ’s verbal notice, adequately informed Plaintiff that he 14 had the right to have a representative at the hearing and the right to postpone the 15 hearing to obtain representation. 16 With respect to Plaintiff’s mental impairments, nothing in the hearing 17 transcript or the record as a whole suggests that Plaintiff did not understand his right 18 to have a representative. Plaintiff has a high school education and he completed 19 “some junior college.” [AR 22, 42.] Plaintiff does not allege he could not read or 20 understand the written notices he received; indeed prior to the hearing, Plaintiff 21 prepared a detailed and well written letter that he read into the record explaining his 22 extensive work history as a Court Security Officer and how his various physical and 23 mental impairments impact his earnest desire to work as a police officer. [AR 45-49, 24 299-300.] Thus, Plaintiff’s arguments that the ALJ should have done more to 25 explain his right to representation is without merit. Plaintiff unequivocally waived 26 his right to representation and the Court concludes he did so knowingly and 27 intelligently. [7] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 8 of 14 Page ID #:666 1 2. The ALJ’s Duty to Develop the Record 2 Plaintiff, in the alternative, argues the ALJ failed to develop the record. 3 Plaintiff contends that although he testified about attending “talk therapy,” the ALJ 4 never requested Plaintiff’s group therapy records. (Pltf.’s Br. at 18.) Plaintiff 5 asserts, given the lack of overall mental impairment evidence, the ALJ could have 6 cured this omission by ordering a more recent consultative examination instead of 7 relying on the consultative examination conducted in 2017—three years prior to the 8 ALJ’s unfavorable decision. (Pltf.’s Br. at 18.) The Commissioner responds that 9 Plaintiff has failed to show that any additional medical records exist, nor why 10 obtaining additional medical records was necessary as there is no ambiguity in the 11 record. The Court does not find that the ALJ’s duty to further develop the record 12 was triggered here. 13 A. Relevant Proceedings Related to Plaintiff’s Mental Impairments 14 On March 3, 2017, Clifford Taylor, Ph.D., Board certified in Psychology, 15 conducted a complete consultative psychological evaluation of Plaintiff. [AR 39816 405.] Upon examination, Plaintiff’s chief complaints were depression, anxiety, and 17 panic attacks. [AR 398.] During questioning by Dr. Taylor, Plaintiff denied 18 receiving treatment for his mental health symptoms or the use of psychotropic 19 medications. [AR 399.] He reported living alone in a house and spending his days 20 being largely isolated, staying home, listening to music, browsing the internet, and 21 watching television. He reported marked difficulties with sleeping. [AR 400.] He 22 reported spending time with his family and reported his mother did his laundry. He 23 reported no difficulties preparing his own meals, caring for his own personal 24 hygiene, cleaning, driving when necessary, managing his own funds, and grocery 25 shopping. [AR 400.] 26 Findings from the mental status examinations demonstrated Plaintiff was 27 mildly depressed and anxious. He was a thorough historian, with appropriate eye 28 contact. [AR 401.] Upon clinical testing, Plaintiff’s Working Memory Index test [8] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 9 of 14 Page ID #:667 1 showed a score of 83, indicating low average memory; and findings from the WAIS2 4 test showed a Full Scale IQ score of 84, indicating he was functioning in the low 3 average range of intelligence. [AR 403.] Based on all testing, Dr. Taylor 4 determined Plaintiff’s overall cognitive functioning was assessed to be in the low 5 average range with mild deficits in visual motor processing, but with strength in 6 verbal comprehension and perceptual reasoning. [AR 403.] Plaintiff was also noted 7 to have significant deficits in immediate and delayed auditory memory, according to 8 the testing. Based on the examination, Dr. Taylor diagnosed Plaintiff with 9 unspecified anxiety disorder and indicated evidence of a neurocognitive disorder. 10 Dr. Taylor opined that Plaintiff would have moderate impairments: (1) in his ability 11 to maintain concentration, persistence, and pace; (2) function in a work-setting 12 because of repeated episodes of emotional deterioration; and (3) his ability to 13 respond to appropriately to family, coworkers, supervisors and the public. 14 In April 2018, at an appointment with a general practitioner for an emergency 15 room follow-up for a “large hiatal hernia and severe anemia,” Plaintiff reported low 16 energy and decreased interest in activities but denied suicidal or homicidal ideation. 17 [AR 500.] He was diagnosed with depression and prescribed 10mg of an anti18 depressant, Lexapro. [AR 497, 503.] He was also referred to a mental health 19 specialist. 20 Findings from mental status examinations conducted from July 2018 through 21 December 2018 showed Plaintiff’s mood and affect were normal; his behavior was 22 normal; his judgment and thought content were normal; and his cognition and 23 memory were normal. [AR 427, 450, 459, 478.] 24 On December 5, 2019, Plaintiff appeared without an attorney at a hearing 25 before the ALJ. [AR 32-62.] The ALJ inquired about whether Plaintiff was 26 receiving any mental health treatment as follows: 27 ALJ: So, where do you see – do you see a psychiatrist, psychologist or mental 28 health therapist? [9] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 10 of 14 Page ID #:668 1 CLMT: I go to talk therapy, but I don’t go to a psychiatrist. 2 ALJ: You go where? 3 CLMT: I go to talk therapy. I just basically – 4 ALJ: Talk therapy. Okay. 5 CLMT: Yeah. 6 ALJ: Do you have those talk therapy records? 7 CLMT: I don’t have those talk therapies, it’s – I don’t go to a licensed 8 professional. So, it’s – 9 ALJ: Okay. So are there – 10 CLMT: It’s just a – it’s a group – 11 ALJ: -- any records out there that I can request or is it – 12 CLMT: Just my medical records that I brought for the prescription medication 13 that I’m taking for the depression. 14 [AR 43-44.] 15 At the conclusion of the hearing, the ALJ asked Plaintiff if “there are other 16 records that are out there that you want me to get?” [AR 60.] Plaintiff responded 17 that there are “records from medical—emergency room treatments” concerning his 18 “arrythmia problems.” [AR 60.] The ALJ left the record open and offered to 19 contact Eisenhower Medical Center to obtain any additional emergency room 20 records. [AR 61.] 21 B. Discussion 22 “In Social Security cases, the ALJ has a special duty to fully and fairly 23 develop the record and to assure that the claimant’s interests are considered...even 24 when the claimant is represented by counsel.” Celaya v. Halter, 332 F.3d 1177 , 25 1183 (9th Cir. 2003) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). 26 However, “[w]hen a claimant is not represented by counsel, this responsibility is 27 heightened.” Id. This is because “Social Security proceedings are inquisitorial 28 rather than adversarial.” Schiaffino v. Saul, 799 Fed. App’x 473, 476 (9th Cir. 2020) [10] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 11 of 14 Page ID #:669 1 (quoting Sims v. Apfel, 530 U.S. 103, 111-12 (2000)). In particular, the ALJ’s duty 2 to develop the record fully is heightened where the claimant may be mentally ill and 3 thus unable to protect his own interests. Tonapetyan v. Halter, 242 F.3d 1144 , 1150 4 (9th Cir. 2001) (citing Higbee v. Sullivan, 975 F.2d 558, 562 (9th Cir. 1992)). 5 Nonetheless, the ALJ is not a roving investigator; his duty to “to develop the 6 record further is triggered only when there is ambiguous evidence or when the 7 record is inadequate to allow for proper evaluation of the evidence.” Mayes v. 8 Massanari, 276 F.3d 453, 459 (9th Cir. 2001); see Webb v. Barnhart, 433 F.3d 683 , 9 687 (9th Cir. 2005) (explaining that the duty to enlarge the record only arises if the 10 evidence is ambiguous, the ALJ finds that the record is inadequate, or the ALJ relies 11 on an expert’s conclusion that the evidence is ambiguous). 12 Here, Plaintiff does not contend that the evidence in the record was 13 ambiguous. Rather, Plaintiff argues the record was incomplete or inadequate based 14 on potential additional inquiries the ALJ could have made and evidence the ALJ 15 could have sought, such as ordering Plaintiff to undergo an additional consultative 16 examination and requesting “talk therapy records” that Plaintiff testified do not 17 exist. But these arguments are premised on the contention that there are additional 18 records or evidence revealing new or worsening symptoms that was not properly 19 considered by the ALJ. As discussed at the hearing, the ALJ left the record open so 20 that Plaintiff could obtain and submit any additional records. [AR 11.] Indeed, 21 Plaintiff then submitted additional records, which the ALJ admitted into evidence, 22 and considered in her decision. [AR 11, 63n 310.] 23 Plaintiff points to no additional records that he has not already submitted. If 24 there were any such records, Plaintiff could have submitted any additional evidence 25 he felt necessary to support his worsening condition during the pendency of this 26 case, either to the Appeals Council, or indeed to this Court. He has not done so.2 [27] 2 In a letter to the Appeals Council dated November 25, 2020, Plaintiff concedes that [28] he has been “reluctant to seek ongoing and regular medical treatment for [his] [11] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 12 of 14 Page ID #:670 1 This is especially salient because Plaintiff is now represented by counsel. 2 Moreover, there is no question as to whether Plaintiff knew he could submit any 3 further records, because he submitted additional medical records to the ALJ after the 4 hearing. [AR 11, 63]. See Bowen v. Yuckert, 482 U.S. 137, 146 , n.5 107 S. Ct. 2287 5 (1987) (“It is not unreasonable to require the claimant, who is in a better position to 6 provide information about his own medical condition, to do so.”). Contrary to 7 Plaintiff’s argument, the Court finds the record was adequate to enable the ALJ to 8 evaluate the evidence concerning the severity of Plaintiff’s symptoms. See, e.g., 9 Agatucci v. Berryhill, 721 Fed. App’x 614, 617-18 (9th Cir. 2017). Namely, the 10 record included an unambiguous consultative examination, two state reviewing 11 physicians’ opinions expressly discussing Plaintiff’s functional limitations and 12 mental status examinations from Plaintiff’s various medical visits in 2018 and 2019. 13 Plaintiff’s argument that the ALJ was required to further develop the record 14 simply because he was unrepresented and generally lacked the sophistication needed 15 to request additional evidence or raise certain challenges during the hearing (Pltf.’s 16 Br. at 18) is also unpersuasive. Notably, “there is no constitutional right to 17 representation at a Social Security hearing.” Miller v. Barnhart, 33 Fed. App’x. 914 18 (9th Cir. 2002). Rather, the right to counsel at a Social Security hearing is a 19 statutory right, which may be waived. Graham v. Apfel, 129 F.3d 1420, 1422 (11th 20 Cir. 1997). Here, as seen above, Plaintiff was thoroughly informed of his right to 21 representation prior to the hearing and during the hearing, and Plaintiff—a high 22 school graduate who could understand, read, and write English—affirmatively 23 waived his right to representation and elected to proceed at the hearing without an 24 attorney. 25 Finally, contrary to Plaintiff’s assertion, the fact the consultative examination 26 was three years old does not, in and of itself, render it stale. See David P. v. Saul, [28] physical and psychological problems.” [AR 309.] [12] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 13 of 14 Page ID #:671 1 No. 19-cv-01506-BEN-AHG, 2020 WL 4593311 , at *1 (S.D. Cal. Aug. 11, 2020) 2 (adopting report and recommendation that held a two-year-old medical opinion was 3 not stale), vacated and remanded on other grounds sub nom., Politte v. Kijakazi, 4 No. 21-55341, 2021 WL 5860767 (9th Cir. Aug. 10, 2021). Moreover, an updated 5 opinion is not required simply because time elapses between an examination and the 6 ALJ’s decision. See Owen v. Saul, 808 Fed. Appx. 421 , 423 (9th Cir. 2020) 7 (“[T]here is always some time lapse between a consultant’s report and the ALJ 8 hearing and decision, and the Social Security regulations impose no limit on such a 9 gap in time.”) Such an occurrence is quite common. See De Hoog v. Comm’r of 10 Soc. Sec., No. 2:13cv0235-KJN, 2014 U.S. Dist. LEXIS 100712 , 2014 WL 11 3687499, at *7 (E.D. Cal. July 23, 2014) (explaining that “[i]n virtually every case 12 further evidence is received after the [S]tate agency physicians render their 13 assessments—sometimes additional evidence and records are even received after the 14 ALJ hearing.) 15 To render an opinion stale, “subsequent evidence must be contradictory—or 16 at least inconsistent—with the earlier opinion in some material manner.” 17 Digiacomo v. Saul, No. 19-cv-00494-BAM, 2020 WL 6318207 , at *8 (E.D. Cal. 18 Oct. 28, 2020) (finding no error when the plaintiff had not identified subsequent 19 records that were “materially inconsistent” with the opinions relied upon). Here, 20 Plaintiff does not cite or otherwise identify any ambiguous or unclear treatment 21 notes, medical opinions, or other evidence. The ALJ summarized the medical 22 evidence in the record, including evidence related to Plaintiff’s psychiatric 23 consultative exam and subsequent prescription for depression medication and 24 determined Plaintiff’s RFC with the support of that record. [AR 20-22.] That 25 evidence was complete, and Plaintiff has not pointed to any evidence suggesting that 26 his mental functioning worsened after the consultative examination. Accordingly, 27 the ALJ was not obligated to further develop the record. See Albrecht v. Astrue, No. 28 1:11-cv-01319 GSA, 2012 U.S. Dist. LEXIS 121517 , 2012 WL 3704798 , at *12 [13] Case 5:21-cv-01075-GJS Document 25 Filed 09/08/22 Page 14o0f14 Page ID #:672 1 || (E.D. Cal. Aug. 27, 2012) (Consultative examination regarding Plaintiff's 2 || impairments “not necessary” where the existing evidence was sufficient to support 3 || the ALJ’s determination...and such an exam was not needed to resolve an 4 || inconsistency). 5 Remand on this issue is unwarranted. 6 Vv. CONCLUSION 7 For all of the foregoing reasons, IT IS ORDERED that the decision of the 8 || Commissioner finding Plaintiff not disabled is AFFIRMED. 10 IT IS ORDERED. [11] 12 DATED: September 08, 2022 13 | ST [14] 15 GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE