(SS) Rachel L. Prieto v. Commissioner of Social Security

[8] UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 RACHEL LILLIAN PRIETO, Case No. 1:21-cv-00816-SAB 12 Plaintiff, ORDER DENYING PLAINTIFF’S SOCIAL SECURITY APPEAL 13 v. (ECF Nos. 24, 26) 14 COMMISSIONER OF SOCIAL SECURITY, [15] Defendant. [16] 17 I. 18 INTRODUCTION 19 Rachel Lillian Prieto (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 21 disability benefits pursuant to the Social Security Act. The matter is currently before the Court 22 on the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Stanley 23 A. Boone.1 Plaintiff submits the ALJ erred because: (1) substantial evidence does not support 24 the ALJ’s determination that Plaintiff’s past relevant work (“PRW”) as caregiver constituted 25 substantial gainful activity (“SGA”) and does not support the ALJ’s finding of non-disability at 26 step four; and (2) the ALJ’s residual functional capacity finding is not based on substantial 27 evidence. For the reasons set forth below, Plaintiff’s Social Security appeal shall be denied. 1 II. 2 BACKGROUND 3 A. Procedural History 4 Plaintiff was previously found not disabled in determinations dated April 4, 2006, and 5 October 19, 2016. (Administrative Record (“AR”) 195.) Plaintiff filed a Title XVI application 6 for supplemental security income, alleging a period of disability beginning on June 8, 2016. (AR 7 180-88.)2 Plaintiff’s application was initially denied on April 4, 2019, and denied upon 8 reconsideration on July 11, 2019. (AR 91-96, 100-106.) On July 18, 2019, Plaintiff requested a 9 hearing, and on October 15, 2020, testified at a hearing before Administrative Law Judge Shane 10 McGovern (the “ALJ”). (AR 29-62, 170.) On November 20, 2020, the ALJ issued a decision 11 finding that Plaintiff was not disabled. (AR 12-28.) On April 8, 2021, the Appeals Council 12 denied Plaintiff’s request for review. (AR 1-6.) 13 On May 19, 2021, Plaintiff filed this action for judicial review. (ECF No. 1.) On 14 November 17, 2021, Defendant filed the administrative record in this action. (ECF No. 13.) On 15 May 6, 2022, Plaintiff filed an opening brief. (Pl.’s Opening Br. (“Br.”), ECF No. 24.) On June 16 6, 2022, Defendant filed an opposition brief. (Def.’s Opp’n (“Opp’n”), ECF No. 26.) Plaintiff 17 did not file any reply brief. 18 B. The ALJ’s Findings of Fact and Conclusions of Law 19 The ALJ made the following findings of fact and conclusions of law as of the date of the 20 decision, November 20, 2020: 21 • The claimant has not engaged in substantial gainful activity since January 4, 2019, the 22 application date (20 CFR 416.971 et seq.). 23 • The claimant has the following severe impairments: cervical and thoracic spine 24 degenerative disc disease, hypertension, type II diabetes mellitus, and headaches (20 CFR 25 416.920(c)). 26 • The claimant does not have an impairment or combination of impairments that meets or [27] 2 Both parties state the application date is January 4, 2019 (Br. 2; Opp’n 4), however, the application appears to be 1 medically equals the severity of one of the listed impairments in 20 CFR Part 404, 2 Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). 3 • Plaintiff has the residual functional capacity to perform medium work as defined in 20 4 CFR 416.967(c) except that she is limited to no more than occasional overhead reaching 5 bilaterally. 6 • The claimant is capable of performing past relevant work as an in-home caregiver. This 7 work does not require the performance of work-related activities precluded by the 8 claimant’s residual functional capacity (20 CFR 416.965). 9 • The claimant has not been under a disability, as defined in the Social Security Act, since 10 January 4, 2019, the date the application was filed (20 CFR 416.920(f)). 11 (AR 15-24.) 12 III. 13 LEGAL STANDARD 14 To qualify for disability insurance benefits under the Social Security Act, the claimant 15 must show that she is unable “to engage in any substantial gainful activity by reason of any 16 medically determinable physical or mental impairment which can be expected to result in death 17 or which has lasted or can be expected to last for a continuous period of not less than 12 18 months.” 42 U.S.C. § 423 (d)(1)(A). The Social Security Regulations set out a five step 19 sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. § 20 404.1520;3 Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1194 (9th 21 Cir. 2004). The five steps in the sequential evaluation in assessing whether the claimant is 22 disabled are: 23 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. [24] Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or 25 her ability to work? If so, proceed to step three. If not, the claimant is not disabled. [26] 3 The cases generally cited herein reference the regulations which apply to disability insurance benefits, 20 C.F.R. 27 §404.1501 et seq., however Plaintiff is also seeking supplemental security income, 20 C.F.R. § 416.901 et seq. The regulations are generally the same for both types of benefits. Therefore, further references are to the disability [1] Step three: Does the claimant’s impairment, or combination of impairments, meet 2 or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. [3] Step four: Does the claimant possess the residual functional capacity (“RFC”) to 4 perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. [5] Step five: Does the claimant’s RFC, when considered with the claimant’s age, 6 education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not 7 disabled. If not, the claimant is disabled. 8 Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). 9 Congress has provided that an individual may obtain judicial review of any final decision 10 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405 (g). 11 In reviewing findings of fact in respect to the denial of benefits, this court “reviews the 12 Commissioner’s final decision for substantial evidence, and the Commissioner’s decision will be 13 disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v. 14 Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means more than a 15 scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) 16 (internal quotations and citations omitted). “Substantial evidence is relevant evidence which, 17 considering the record as a whole, a reasonable person might accept as adequate to support a 18 conclusion.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (quoting Flaten v. Sec’y of 19 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). 20 “[A] reviewing court must consider the entire record as a whole and may not affirm 21 simply by isolating a specific quantum of supporting evidence.” Hill, 698 F.3d at 1159 (quoting 22 Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006). However, it is not 23 this Court’s function to second guess the ALJ’s conclusions and substitute the court’s judgment 24 for the ALJ’s. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is 25 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be 26 upheld.”). 27 / / / / / / 1 IV. 2 DISCUSSION AND ANALYSIS 3 Plaintiff argues error for two primary reasons: (1) substantial evidence does not support 4 the ALJ’s determination that Plaintiff’s PRW as caregiver constituted SGA and does not support 5 the ALJ’s finding of non-disability at step four; and (2) the ALJ’s residual functional capacity 6 finding is not based on substantial evidence. 7 A. The ALJ Did Not Err At Step Four 8 “At step four, claimants have the burden of showing that they can no longer perform their 9 past relevant work.” Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citing 20 C.F.R. §§ 10 404.1520(e), 416.920(e); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir.1990)); see also Lewis v. 11 Apfel, 236 F.3d 503, 515 (9th Cir. 2001) (claimant has burden of showing they do not have the 12 RFC to engage in past relevant work). While the claimant has the burden of proof at step four, 13 “the ALJ still has a duty to make the requisite factual findings to support his conclusion.” Pinto, [14] 249 F.3d at 844 . “This is done by looking at the ‘residual functional capacity and the physical 15 and mental demands’ of the claimant’s past relevant work.” Id. at 844-45 (quoting 20 C.F.R. §§ 16 404.1520(e), 416.920(e)). The claimant must be able to perform: (1) the actual functional 17 demands and job duties of a particular past relevant job; or (2) the functional demands and job 18 duties of the occupation as generally required by employers throughout the national economy. 19 Pinto, 249 F.3d at 844 (citing Titles II & XVI: A Disability Claimant’s Capacity to Do Past 20 Relevant Work, in Gen., SSR 82-62 (S.S.A. 1982)). Thus, the ALJ must make specific factual 21 findings as to the claimant’s RFC, the physical and mental demands of the past relevant work, 22 and the relation of the RFC to the past work. Id. 23 The ALJ determined Plaintiff was not disabled based on a finding at step four that she 24 could perform her past relevant work (“PRW”) as an “in-home caregiver,” DOT 354.377-014, as 25 generally performed in the national economy. (AR 23.) Plaintiff argues substantial evidence 26 does not support the determination that Plaintiff’s PRW as an “in-home caregiver” constitutes 27 Substantial Gainful Activity (“SGA”) pursuant to the SSA rules, regulations and prevailing case 1 in SGA. Otero Suarez v. Barnhart, No. CV 05-792 E, 2005 WL 2305012 , at *2 (C.D. Cal. Sept. 2 21, 2005) (citing 20 C.F.R. §§ 404.1574 (b)(3), 416.974(b)(3); Lewis, 236 F.3d at 515 ). The 3 Court first turns to discuss the caselaw cited by Plaintiff. 4 PRW consists of any work that was done within the last 15 years, that was done over a 5 long enough duration to learn to do it, and was substantial gainful activity. Otero, 2005 WL 6 2305012, at *2 (citations omitted). “Earnings can be a presumptive, but not conclusive, sign of 7 whether a job is substantial gainful activity.” Lewis, 236 F.3d at 515 ; Otero, 2005 WL 2305012 , 8 at *2 (same). 9 At the time of the decision in Lewis, the Ninth Circuit stated that monthly earnings of 10 less than $300 generally showed the claimant had not engaged in SGA, but earnings averaging 11 over $500 generally did show SGA. Lewis, 236 F.3d at 515 . In that case, the claimant’s 12 earnings averaged less than $300 per month. Id. The Ninth Circuit stated that the presumption 13 arising from these low earnings shifted the step four burden of proof to the Commissioner. Id. 14 “With the presumption, the claimant has carried his or her burden unless the ALJ points to 15 substantial evidence, aside from earnings, that the claimant has engaged in substantial gainful 16 activity.” Id. (emphasis in original). 17 In Otero, the ALJ found the claimant’s earnings record showed no earnings since 1974, 18 and the court agreed with the claimant that the ALJ should have concluded the claimant had no 19 SGA and thus no PRW, as substantial evidence did not support a finding that Otero had PRW as 20 a painter and delivery driver. Otero, 2005 WL 2305012 , at *2 (“The finding that Plaintiff’s 21 earnings record shows no earnings from 1974 to the present triggers a presumption that Plaintiff 22 has not engaged in substantial gainful activity . . . [t]o rebut this presumption, the ALJ must point 23 to substantial evidence, aside from earnings, that the claimant has engaged in substantial gainful 24 activity.”). 25 Here, Plaintiff argues that the ALJ harmfully erred by failing to explore each of the 26 factors listed in the regulations. (Br. 8.) As noted in Lewis, these “regulations list five factors: 27 the nature of the claimant’s work, how well the claimant does the work, if the work is done under 1 at work.” Lewis, 236 F.3d at 515–16 (citing 20 C.F.R. §§ 404.1573 & 416.973; Katz v. 2 Secretary of Health and Human Servs., 972 F.2d 290, 293 (9th Cir.1992)). In Otero, the district 3 court concluded the “ALJ, however, failed to discuss any of these factors in her decision.” 4 Otero, 2005 WL 2305012 , at *2 (“[s]uch evidence can include”). There, the ALJ specifically 5 made findings that there were no earnings from 1974, but also specifically stated it was not clear 6 when Plaintiff worked as a painter and delivery driver, and despite these findings, found this 7 work to be PRW. Id. Given the presumption that flowed from the ALJ’s finding of no earnings, 8 the ALJ was required to rebut the presumption with substantial evidence, aside from earnings, 9 that the claimant has engaged in substantial gainful activity. Id. 10 Having preliminarily discussed the relevant law cited by Plaintiff, the Court now turns to 11 the ALJ’s findings and Plaintiff’s more pointed arguments. The ALJ made the following 12 findings: 13 The claimant reported that she worked as a server in 2009 and as a caregiver in 2011 (Exhibit 4E). The claimant reported that she 14 worked as a caregiver for four to five months and earned $600 every two weeks, but she stated that she did not receive paystubs 15 (Exhibit 3A, page 5). The claimant’s earnings record shows no income since 2001 (Exhibit 4D). At the hearing the claimant 16 testified that she worked as a care giver, but she only did this job for two months. She testified that she took over this job from her 17 cousin, but she had to quit when her employer took her fingerprints. The claimant testified that this was a live-in position 18 where she was taking care of six people in a house. She testified that she had to lift a lady who weighed about 180 or 190 pounds. [19] The vocational expert characterized the claimant’s past work as a 20 home attendant or care giver, Dictionary of Occupational Titles (DOT) number 354.377-014, as generally medium exertion but 21 very heavy exertion as performed by the claimant, and semiskilled, with a specific vocational preparation (SVP) level of 3. The 22 vocational expert testified that an SVP 3 job requires one to three months to learn the job duties. [23] Although the claimant has given somewhat conflicting information 24 about her past work, the undersigned concludes that the job of caregiver satisfies the definition of past relevant work as required 25 by Social Security Ruling 82-62. Based on the information the claimant provided to the Disability Determination Service at the 26 reconsideration determination, her work as a caregiver was substantial gainful activity, the claimant performed the work long 27 enough to achieve average performance, and the claimant performed the work within the relevant 15-year period. The 1 in 2011 was $1000, and based on her statements she earned about $1200 per month at this job (Exhibit 3A, page 5). Furthermore, she 2 stated that she did this job for four to five months (Exhibit 3A, page 5), which would satisfy the amount of time required to learn 3 the job duties and achieve average performance for an SVP 3 job. Therefore, her work as a caregiver is past relevant work. [4] 5 (AR 23.) 6 1. The ALJ’s Reliance on Exhibit 3A/5 7 Plaintiff argues “Exhibit 3A/5” does not constitute substantial evidence to support a 8 finding that Plaintiff engaged in SGA, as it is not an earnings record or a work history report, but 9 rather is a random, unsigned notation in a DDS record dated June 21, 2019. 10 The Court notes the entries in this exhibit are under a section entitled “Claim 11 Communications,” under “Authorized Rep.” (AR 76 (capitalization and font altered).) The 12 record contains an entry dated May 17, 2019, at 10:40 a.m, noting information from counsel 13 Jonathan Pena (“Mr. Peña”), with the entry reading: “LVM need to see how long she was a 14 caregiver? Query shows no earnings,” signed by “Roberta Duarte, DEA.” (AR 76.) An entry 15 below that dated June 6, 2019, states “PC from rep’s office they would like a barcode to submit 16 an MSS . . . Also, advised them we still need to know how long she did caregiver job? They 17 stated [claimant] has not responded to them yet. Let them know I will only hold the case till 18 tomorrow for info as it has been over the 10 days. He understood and will try to get a hold of the 19 claimant.” (AR 76.) An entry below that dated June 21, 2019, states: “She was a caregiver [and] 20 did it for 4-5 [months]. She did earn $600 every [two weeks] which monthly is $1200[,] which 21 is SGA, didn’t get a check stub as [claimant] had to be let go as her fingerprinting didn’t pass the 22 background check.” (AR 76.) 23 Plaintiff contends there is “no reference” as to where this information came from, who 24 took the information, and there is no supporting evidence of record regarding the length of time 25 Plaintiff performed this work or the amount of money she earned. (Br. 9-10.) Plaintiff 26 emphasizes her testimony: that she did not remember when she last worked or where (whether it 27 was a facility or private home) (AR 46, 57); concerning whether she last worked in 2009 or 2011 (AR 48); and that she only worked for a couple of months (AR 47). (Br. 10.) Plaintiff directs 1 the Court to consider her testimony that she had to quit for various reasons, including because 2 she was fingerprinted in El Paso (AR 47), and “because I was so skinny and I had went to the 3 doctor and I wasn’t feeling good you know. Went to the hospital emergency and they told me I 4 was a diabetic. Everybody was telling me I was getting so skinny, I looked like a skeleton. You 5 know, they thought I was on drugs and I had to go to the emergency to find out that I had 6 diabetes because I was getting real skinny…so it was after that, I quit, you know because –I 7 don’t know. And then they found out I had high blood pressure and you know…” (AR 49); in 8 addition to her testimony that she “wanted to keep working but just –I couldn’t. I don’t know,” 9 (AR 57). (Br. 10.) In sum, Plaintiff emphasizes there is no discussion, one way or the other, of 10 how much money she made performing this job and no earnings record to establish her earnings, 11 and the notation cited to by the ALJ in the decision is not repeated, mentioned, discussed or 12 corroborated anywhere in the record and as such cannot constitute substantial evidence that 13 Plaintiff engaged in SGA. 14 Defendant responds that Plaintiff’s characterization of the record as unsupported by 15 information concerning who took or provided the information, is incorrect. Defendant highlights 16 the cited document is an electronically signed and dated report by Roberta Duarte, a disability 17 evaluation analyst (“DEA’) of the California Disability Determination Service, documenting a 18 telephone conversation with Plaintiff’s hearing-level representative on June 21, 2019, following 19 up from a prior call from June 6, 2019, meant to develop information about Plaintiff’s work 20 record. During the later call, the representative told Ms. Duarte, in relevant part, that Plaintiff 21 earned $600.00 every two weeks, or approximately $1,200.00 per month, while employed as a 22 Caregiver. Plaintiff did not file a reply and thus did not respond to Defendant’s argument here. 23 As for Plaintiff’s statement that the cited information “is not repeated, mentioned, 24 discussed or corroborated anywhere in the record,” Defendant proffers this statement is also 25 incorrect. First, upon completing the application for SSI in March 2019, Plaintiff and her 26 attorneys reported that the claimant earned $600.00 biweekly while employed as a Caregiver in 27 2011. (AR 199.) The Court notes this record provides that she worked as a “Caregiver,” the 1 provide the months where directed, she reported working 6 hours per day 5 days a week, and 2 reported earning $600 bi-weekly. (AR 199.) 3 Defendant also states counsel Mr. Peña affirmatively reported that the prior work as a 4 Caregiver was past relevant work. (AR 281). Specifically, the hearing brief dated October 12, 5 2020, contains the following notation pertaining to step four: 6 Step Four: Ms. Prieto has past relevant work as a caregiver and a server (4E). As described below, she is unable to perform 7 full-time work at any exertional level. Therefore, she is unable to perform [her] past relevant work. [8] 9 (AR 281.) Defendant also directs to the Court to two work history reports, wherein Plaintiff 10 reported that she earned $600.00 biweekly while employed as a Caregiver in 2011. (AR 205, 11 217). The first record does report Plaintiff worked as a caregiver in 2011, worked 6 hours per 12 day 5 days a week, earning $600 bi-weekly. (AR 204-205.) This appears to be a computer 13 generated output from an electronic application, and the signature/date portion is blank. (AR 14 211.) However, it appears to be part of the same larger application dated March 13, 2019. (AR 15 194-211.) The months in 2011 are again omitted. (Id.) The second record is a handwritten form 16 completed March 15, 2019, wherein, Plaintiff appears to have directly written in the same 17 information about working as a caregiver in 2011, earning $600 bi-weekly. (AR 216-217.) It 18 appears Plaintiff initially checked the box for monthly pay, however, the bi-weekly box was then 19 fully checked off. (AR 217.) Again, Plaintiff did not file a reply and thus did not respond to 20 Defendant’s citations to these records, and mounts no arguments as to why these records do not 21 provide additional support for finding substantial evidence supports the ALJ’s determination. 22 The Court finds the cited records do provide support for the ALJ’s finding that Plaintiff 23 engaged in SGA due to earnings surpassing the level of $1,000 per month, and this constitutes 24 substantial evidence in support of the finding. See Smolen, 80 F.3d at 1279 (substantial evidence 25 more than a scintilla, but less than a preponderance); Burch, 400 F.3d at 679 (“Where evidence is 26 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be 27 upheld.”). 1 2. Ambiguity Reflected in the Hearing Transcript and Earnings Presumption 2 Plaintiff additionally argues that review of the hearing testimony transcript reveals the 3 ALJ identified significant ambiguity surrounding the issue of whether Ms. Prieto performed 4 SGA. First, Plaintiff directs the Court to the following exchange, which includes a reference to 5 Plaintiff’s memory issues, which the Court reproduces in larger relevant part: 6 ALJ: Okay. And Mr. Martinez, yeah, I mean I think that past work is kind of a sticking point. I know it was for DDS, and I’m going 7 to have to take a good look at that – have you talked to your client, Mr. Martinez, if there’s any paperwork or pay stubs, or anything 8 there to try to document what we were doing. 9 ATTY: Yes, but as I’m sure you’ve – she has a very hard time with memory and recalling specific information and any paperwork she 10 has a hard time with. So unfortunately, I don’t think that we have anything to document that, the work attempt or work background. [11] ALJ: Okay. All right. Well, I’ll go through and do the best I can 12 with it. I mean rest assured if the care giver position is kind of what everything hinges on, I mean I’ll do my best to kind of suss 13 out as best I can what we’ve got. It sounds like there’s nothing else really there to take a look at from what you’ve gathered? [14] ATTY: As far as I can tell, no. [15] 16 (AR 50-51.) Plaintiff then highlights the following exchange: 17 I was trying to see – I mean it seems like if it were a company, it would have shown up in the detailed – [18] A It wasn’t a company. [19] ALJ: It wasn’t. Yeah, I have a feeling it might have been some 20 kind of self-employment type of situation or something similar. 21 (AR 57.) Plaintiff highlights the ALJ’s posture on this point when the ALJ made his 22 conclusions: 23 You know, it’s close on the SGA there. The testimony today is more like, what, a couple months or something I think. So 24 I’ll see. If there’s anything, you know, you all dig up in the meantime. 25 I mean it sounds like you’ve done your due diligence there, but you know, if something comes up talking to your client 26 afterwards, or there’s something you think would be helpful for me, you know, I’ll take a look at it for sure. So -- . . . [27] . . . Yeah, I mean – I’ll throw that out there to you, and yeah, if we 1 because we don’t have any step one issues. I’m pretty sure we’re looking at that special medical vocational profile 2 But yeah, I mean if you have anything, great. I’ll certainly take a look. Yeah, I mean I’ll do what I can here to try to piece 3 together what we’ve got. 4 (AR 61.) 5 Plaintiff argues that because there was no earnings record, there was a presumption she 6 did not engage in SGA, and that the ALJ’s duty to develop the record was triggered given the 7 acknowledgment of ambiguity as to this past work. Plaintiff submits the ALJ’s attempt to 8 “remedy” this ambiguity by “piecing together what we’ve got” (AR 61) because the ALJ had a 9 “feeling” it might be self-employment (AR 57), with one uncredited and uncorroborated 10 reference in the DDS report (discussed in the previous subsection), does not constitute 11 substantial evidence to meet the burden to establish that Plaintiff performed SGA. 12 In response, Defendant frames Plaintiff’s appeal as Plaintiff simply now asserting her 13 previous admissions should be ignored, and this Court should conclude the work was not past 14 relevant work because Plaintiff and her employer did not report her income therefrom to the 15 Internal Revenue Service, and because there is purportedly no other evidence of her earnings. 16 Defendant contends Plaintiff’s arguments should be rejected as unsupported. In response to 17 these arguments, Defendant provides the Court with a layout of the events and record, that 18 Plaintiff left unaddressed with no reply briefing. 19 Specifically, Defendant highlights that while Plaintiff has reported no income to the 20 Internal Revenue Service since 2001 (AR 189-90, 192), upon completing her application for SSI 21 in March 2019, Plaintiff and her attorneys reported that she was employed as a Caregiver for 30 22 hours per week for a bi-weekly wage of $600.00 during 2011. (AR 199.) When her claim was 23 processed at the reconsideration level, an employee of the California Disability Determination 24 Service, Roberta Duarte, contacted Plaintiff’s hearing-level attorneys for further information 25 about her work activity on June 21, 2019. (AR 76.) Ms. Duarte was informed that Plaintiff had 26 been employed as a Caregiver for between four and five months, was paid $600.00 biweekly, 27 and did not receive a paystub because she was “let go as her fingerprinting didn’t pass the background check.” (Id.) As the ALJ noted in the hearing decision, average monthly earnings 1 equal to or in excess of $1,000.00 during 2011 generally demonstrated an individual’s 2 engagement in substantial gainful activity (AR 23). See 20 C.F.R. § 416.974 ; Substantial 3 Gainful Activity, Monthly substantial gainful activity by disability type, Social Security 4 Administration, https://www.ssa.gov/oact/cola/sga.html (last visited August 30, 2022). In a pre5 hearing brief dated October 12, 2020, one of Plaintiff’s attorneys, Mr. Peña, conceded that 6 Plaintiff “has past relevant work as a caregiver.” (AR 281.) Although Plaintiff initially testified 7 that she did not remember when she last worked, she ultimately testified that she worked as a 8 live-in Caregiver for six individuals for a period of approximately two months around 2009 (Tr. 9 46-48). 10 The Court notes the following testimony, that provides support for the reference note of 11 Ms. Duarte that pertains to fingerprinting, though does also demonstrate potential support for 12 memory problems in that it references 2009 instead of 2011: 13 Q Okay. Do you remember being a care giver for a time? [14] A Yeah, I remember but I only worked for that for two 15 months, and then they – you know, I had started because my cousin got me that job. I was taking over for him, but I was 16 working under my name. And they fingerprinted me, in El Paso. I had to quit. [17] Q So you think you did the care – work for a couple 18 months? 19 A Yeah. 20 Q Okay. 21 A But it was a live-in. 22 Q A live-in, okay. So you’re living with the – were you taking care of one person, or were you taking care of a bunch 23 of – 24 A No, it was six people I had to take – like make then breakfast, and given them their pills, and like, you know, wake 25 them up or you know, pick them up and stuff, yeah. 26 Q Okay. And do you think you did for a couple months? [27] A Yeah, around there. 1 Q Okay. Do you remember when that was? I’ve got your work history report at 4E. It looks like that that might have 2 been around 2011. Does that sound right? 3 A No, it’s longer than that. 4 Q Okay. You think it was further back in time? 5 A It was like about 2009. I’m not sure. It was around there somewhere. [6] 7 (AR 46-48.) Defendant highlights that Plaintiff provided no information about her earnings that 8 was contrary to the prior statements by Plaintiff and her attorneys. (Id.) Defendant argues 9 substantial evidence supports the ALJ’s findings and conclusions. The Court agrees. 10 The ALJ found Plaintiff had past relevant work as a Caregiver (DOT 354.377-014). Past 11 relevant work consists of any work that was “done within the last 15 years, lasted long enough 12 for [the claimant] to learn to do it, and was substantial gainful activity.” 20 C.F.R. § 416.965 (a); 13 Vertigan v. Halter, 260 F.3d 1044, 1051 (9th Cir. 2001); Otero, 2005 WL 2305012 , at *2. There 14 is no apparent dispute as to whether the prior work as a Caregiver was performed within the 15 15 years ending on the date the hearing decision was issued, or whether the work was performed 16 long enough for Plaintiff to learn to do it. As to whether it was performed at the level of 17 substantial gainful activity, the ALJ observed that it was reported that Plaintiff earned $600.00 18 biweekly while employed, which exceeds the presumptive substantial gainful activity threshold 19 in place at the time Plaintiff performed the prior work as a Caregiver. The Court finds the ALJ 20 properly supported this finding with the notes of Ms. Duarte documenting the June 21, 2019 21 conversation with Plaintiff’s hearing-level legal representatives, and the earnings information 22 provided by Plaintiff’s attorneys to Ms. Duarte was consistent with the statements upon 23 completion of Plaintiff’s application in March 2019 (AR 199), and counsel Mr. Peña’s pre24 hearing brief that reported Plaintiff’s self-identified employment as a Caregiver was past relevant 25 work (AR 205, 217, 21). 26 Defendant frames Plaintiff’s challenge as simply proffering that because the earnings 27 record does not reflect either Plaintiff or her employer having reported her income to the Internal Revenue Service and because she did not (or could not) produce any paystubs from her 1 employment, the ALJ could not have found that the work was performed at the level of 2 substantial gainful activity absent additional analysis, and that a presumption that Plaintiff did 3 not engage in substantial gainful activity can only be rebutted upon consideration of the five 4 factors discussed above: the nature of her work, how she did the work, whether the work was 5 done under special condition, whether she was self-employed, and the amount of time she spent 6 at work. Otero, 2005 WL 2305012 , at *2. Incorporating the Court’s discussion of the legal 7 standards above, the Court agrees that Plaintiff’s reliance on Otero and Lewis is misplaced. 8 When evaluating whether work activity was performed at the level of substantial gainful activity, 9 “[g]enerally . . . our primary consideration will be the earnings [Plaintiff] derive[d] from the 10 work activity.” 20 C.F.R. § 416.974 (a)(1). Nothing in the regulations or the authority identified 11 by Plaintiff demands that the earnings information be in a particular form (e.g., tax records, 12 paystubs, statement from the employer, statement from a claimant). 13 Defendant proffers that an ALJ need not provide specific, articulated consideration of the 14 five factors other than earnings unless the earnings information is somehow insufficient to 15 determine whether Plaintiff engaged in substantial gainful activity or there is some other 16 evidence showing that not all of the earnings should be counted, such as evidence of subsidies or 17 excludable impairment-related work expenses. See 20 C.F.R. § 416.974 (a)(1) (“We will use 18 your earnings to determine whether you have done substantial gainful activity unless we have 19 information from you, your employer, or others that shows that we should not count all of your 20 earnings.”). The Court finds the information of record highlighted herein provides sufficient 21 information for the ALJ to evaluate whether earnings demonstrated her engagement in 22 substantial gainful activity. Plaintiff has not alleged any reason why the reported earnings 23 should be reduced below the level of substantial gainful activity, nor does Plaintiff argue that the 24 amount she and her attorneys reported is inaccurate. 4 The Court therefore finds ALJ’s express 25 consideration of Plaintiff’s “somewhat conflicting information” and citation to the reports of [26] 4 Further, Defendant argues that if relevant, Plaintiff’s alleged memory deficits are wholly uncorroborated (i.e., not medically determinable). Specifically, Plaintiff did not allege memory deficits as being as basis for her claim and 27 does not object to the ALJ’s finding that she had no medically determinable mental impairment. Further, the Court agrees that amongst the inconsistent statements she provided regarding her work activity, none of the inconsistencies 1 earnings (AR 23) to resolve the conflicting information provides substantial evidence for the 2 ALJ’s determination regarding earnings. See Pinto, 249 F.3d at 844 (While the claimant has the 3 burden of proof at step four, “the ALJ still has a duty to make the requisite factual findings to 4 support his conclusion.”). 5 While there was discussion of ambiguity during the hearing, the Court is inclined to 6 conclude the trigger for the presumption that would require additional analysis was not present 7 here. There was no actual conflicting evidence regarding Plaintiff’s earnings that demonstrated 8 Plaintiff earned less than a level of SGA, that would then require the ALJ to proceed to 9 determine whether the other factors demonstrated such work would qualify as SGA despite 10 earning less than the SGA cutoff. Plaintiff utilizes Lewis and Otero to argue that the absence of 11 income on her earnings reports creates a presumption that her work activity was not substantial 12 gainful activity, notwithstanding the reports of both Plaintiff and her attorneys about her 13 earnings. However, in both Otero and Lewis, the claimants’ income was reported to the Internal 14 Revenue Service and the reported earnings (documented in the casefile) were below the 15 substantial gainful activity threshold, creating a presumption that the work activity did not rise to 16 the level of substantial gainful activity that the ALJ did not rebut with other, countervailing 17 evidence. Otero, 2005 WL 2305012 , at *2; Lewis, 236 F.3d at 515–16. Here however, 18 Plaintiff’s income was not reported to the Internal Revenue Service and the ALJ pointed to a 19 report by Plaintiff’s own legal representatives demonstrating that her earnings were consistent 20 with substantial gainful activity. (AR 23, 76.) Again, Plaintiff did not submit a reply brief, her 21 hearing testimony in fact did not proffer a different claimed amount of income at the caregiver 22 position, and Plaintiff does not now argue that the factual finding is actually incorrect. 23 Defendant does not dispute that Plaintiff correctly identifies that the ALJ identified a 24 potential ambiguity regarding Plaintiff’s work history at the time of the hearing. (Br. 10-11; AR 25 50-51, 57, 61.) The Court finds it significant however that the ALJ did not omit or neglect the 26 fact that there was ambiguity or inconsistency, in the Plaintiff’s statements. The ALJ stated: 27 “[a]lthough the claimant has given somewhat conflicting information about her past work, the 1 required by Social Security Ruling 82-62 [and] [b]ased on the information the claimant provided 2 to the Disability Determination Service at the reconsideration determination, her work as a 3 caregiver was substantial gainful activity.” (AR 23.) The Court finds the ALJ sufficiently 4 resolved the relevant conflict by relying upon the statements of Plaintiff and her legal 5 representatives. Further, the relied-upon information is consistent with other evidence of record 6 in the record, and again, Plaintiff does not argue that the amount she and her attorneys reported is 7 inaccurate. 8 The Court recognizes that the ALJ in fact referenced the fact DDS perhaps found this to 9 be a sticking point and was already aware on the statement of Ms. Duarte. (AR 50-51.) 10 However, the ALJ clearly recognized that the Plaintiff’s testimony reflected “somewhat 11 conflicting information about her past work,” but despite that observation, the ALJ concluded the 12 job of caregiver satisfied the definition of past relevant work, based on the information that 13 Plaintiff herself provided to DDS at the reconsideration level, and that it was substantial gainful 14 activity. The ALJ utilized Plaintiff’s report that she earned $1,200 per month for 4 to 5 months. 15 This report is supported by other substantial evidence in the record, and Plaintiff never claimed 16 the reported income amount was in fact incorrect. Further, this case is distinguishable from 17 cases where the evidence indicated such lower level of earnings, or where the opinion left no 18 specific reasoning for the court to analyze. See Adams v. Berryhill, No. CV 17-8724 JC, 2019 19 WL 688202 , at *5 (C.D. Cal. Feb. 19, 2019) (“[T]he ALJ determined that plaintiff retained the 20 residual functional capacity to return to past relevant work as a self-employed painter, but 21 pointed to nothing in the record which supported finding that plaintiff's painting job could 22 qualify as past relevant work at all . . .[a]bsent some explanation regarding how the ALJ arrived 23 at such a fundamental assumption regarding plaintiff's work history, the Court is unable to 24 conduct a meaningful review of the ALJ’s non-disability determination at step four.”); Michael 25 L. v. Kijakai, No. 2:20-CV-06440-AFM, 2021 WL 5868326 , at *4 (C.D. Cal. Dec. 9, 2021) 26 (“Plaintiff's Earnings Statements indicate that from 2003 through 2017, his earnings fell far 27 below the level required to constitute substantial gainful activity . . . ALJ was not permitted to [1] 2017 WL 2541399 , at *4 (C.D. Cal. June 12, 2017) (“does not discuss why the ALJ concludes 2 that this work was performed at the level of substantial gainful activity. During the hearing, the 3 ALJ questioned Plaintiff about his job as a newspaper salesperson, but the ALJ did not make a 4 finding on whether this employment was performed at the level of substantial gainful activity.”); 5 Wagner v. Comm'r of Soc. Sec. Admin., No. CV-20-08042-PCT-MTL, 2021 WL 1056397 , at *3 6 (D. Ariz. Mar. 18, 2021) (“The ALJ's decision does not indicate whether he relied on the June 7 2007 end-date to conclude Plaintiff earned more than the threshold substantial gainful activity 8 amount. Nor is there reasoning that, despite low earnings, other factors rebutted the presumption 9 that the driver position was not substantial gainful activity.”). 10 Accordingly, for the above explained reasons, the Court does not find the presumption 11 claimed by Plaintiff was triggered here. Lewis, 236 F.3d at 515 (presumption arose from 12 evidence documenting earnings of $300, specifically lower than the $500 threshold); Otero, 2005 13 WL 2305012 , at *2 (“The finding that Plaintiff's earnings record shows no earnings from 1974 to 14 the present triggers a presumption that Plaintiff has not engaged in substantial gainful activity.”). 15 The Court finds the ALJ’s findings regarding substantial gainful activity and past relevant work 16 at step four was based on substantial evidence cited by the ALJ in the form of Plaintiff’s own 17 reported income, and that such reports are supported by other substantial evidence in the record. 18 See Smolen, 80 F.3d at 1279 (substantial evidence more than a scintilla, but less than a 19 preponderance); Burch, 400 F.3d at 679 (“Where evidence is susceptible to more than one 20 rational interpretation, it is the ALJ’s conclusion that must be upheld.”). 21 B. The ALJ’s RFC Determination is Proper and Supported by Substantial Evidence in the Record [22] 23 1. Legal Standards 24 A claimant’s RFC is “the most [the claimant] can still do despite [his] limitations.” 20 25 C.F.R. § 416.945 (a)(1). The RFC is “based on all the relevant evidence in [the] case record.” 20 26 C.F.R. § 416.945 (a)(1). “The ALJ must consider a claimant’s physical and mental abilities, § 27 416.920(b) and (c), as well as the total limiting effects caused by medically determinable 1 Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). At step four the RFC is used to determine if a 2 claimant can do past relevant work and at step five to determine if a claimant can adjust to other 3 work. Garrison, 759 F.3d at 1011 . “In order for the testimony of a VE to be considered reliable, 4 the hypothetical posed must include ‘all of the claimant’s functional limitations, both physical 5 and mental’ supported by the record.” Thomas, 278 F.3d at 956 . 6 When applying for disability benefits, the claimant has the duty to prove that she is 7 disabled. 42 U.S.C. § 423 (c)(5)(A). The ALJ has an independent “duty to fully and fairly 8 develop the record and to assure that the claimant’s interests are considered.” Widmark v. 9 Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (quoting Brown v. Heckler, 713 F.2d 441 , 443 10 (9th Cir. 1983)). The ALJ has a duty to further develop the record where the evidence is 11 ambiguous or the ALJ finds that the record is inadequate to allow for proper evaluation of the 12 evidence. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); Tonapetyan v. Halter, 242 13 F.3d 1144, 1150 (9th Cir. 2001). A specific finding of ambiguity or inadequacy in the record is 14 not required to trigger the necessity to further develop the record where the record itself 15 establishes the ambiguity or inadequacy. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). 16 2. Plaintiff’s Challenge 17 Plaintiff proffers the ALJ based the RFC determination on the findings of the non18 examining state agency physicians whose opinions the ALJ found “persuasive” (AR 21), but of 19 note, the most recent state agency RFC determination from Dr. Mitchell, which the ALJ utilized 20 in making the RFC determination, is dated May 16, 2019 (AR 78), and did not include a review 21 of a considerable portion of the most recent medical records in Exhibits 4F through 8F (AR 38522 419), including: multiple objective examination findings documenting a reduced range of motion 23 (AR 401-402); documentation that Plaintiff was treated non-conservatively with the narcotic 24 Norco and the muscle relaxant, Cyclobenzaprine (AR 402, 407); that Plaintiff had an occipital 25 nerve block (AR 418); the updated medical assessment of Plaintiff’s treating provider who 26 determined Plaintiff’s severe impairments limited her to a reduced range of sedentary work (AR 27 408-411); and the initial treatment record from treating pain management specialist, Dr. Otchere, 1 extension limited due to pain, concordant tenderness at the spinous process, paraspinous muscles 2 at the cervical segment and base of the skull, and a positive cervical compression test positive 3 (AR 417-418). Therefore, Plaintiff argues the ALJ’s RFC determination is based upon non4 examining state agency physicians who did not review the entire record, and thus not based on 5 substantial evidence. Plaintiff further argues that because the ALJ rejected the only other MSS 6 from the only medical provider who reviewed the entire medical evidence of record, the ALJ 7 erred by failing to obtain an opinion from an examining physician source or submit the updated 8 records to an “acceptable” medical professional for interpretation. 9 3. The Court finds the ALJ did not Err in the RFC Determination 10 First, the Court clarifies that it appears state agency physician Dr. Mitchell signed the 11 opinion on July 2, 2019. (AR 79.) It was state agency physician Dr. Berry that signed the 12 opinion on May 16, 2019. (AR 78.) 13 Defendant generally responds that the ALJ identified substantial evidence in support of 14 the RFC and applied the correct legal standards (AR 18-24), and specifically, reviewed 15 Plaintiff’s allegations (AR 19); reviewed and analyzed the medical evidence over four, single16 spaced paragraphs, highlighting inconsistencies between Plaintiff’s allegations and the objective 17 medical evidence (AR 19-21); then analyzed the non-medical evidence, including Plaintiff’s 18 activities of daily living, again highlighting the lack of objective corroboration of her allegations 19 of profound limitations (AR 21); and then analyzed the medical opinion evidence, finding the 20 prior administrative medical findings of Dr. Mitchell persuasive but the opinions of Nurse 21 Practitioner Yang and the prior administrative medical findings of Dr. Bobba not persuasive (AR 22 21-23). Defendant contends the ALJ did not reject Plaintiff’s allegations outright, but instead 23 tempered them with the totality of the evidence and concluded her impairments limit her to 24 performing work at the medium exertional level with the additional limitation of being able to 25 only occasionally reach overhead bilaterally due to her cervical spine impairment. (AR 18.) 26 Defendant highlights that Plaintiff did not identify any specific error regarding the ALJ’s general 27 evaluation of the medical and non-medical evidence, nor with the analysis of the treatment 1 medical findings of Dr. Mitchell. 2 Turning to the opinion, the ALJ made the following findings when weighing Dr. 3 Mitchell’s opinion, specifically referencing and addressing the later received records: 4 Dr. Mitchell, a DDS physician, concluded that the claimant can perform medium exertion work and can occasionally reach 5 overhead bilaterally (Exhibit 3A). The undersigned finds that Dr. Mitchell’s opinion is persuasive. Dr. Mitchell is not a treating 6 physician and he did not examine the claimant in person, but he reviewed a substantial amount of the claimant’s medical records, 7 including progress notes from her primary care provider and imaging studies of her cervical and thoracic spine. Dr. Mitchell 8 identified several specific medical findings to support his conclusions. For example, he clearly took into consideration the 9 updated medical evidence including imaging studies of the claimant’s cervical and thoracic spine, as well as office visits 10 during which she complained of neck pain and exhibited pain with flexion and extension of her neck and lumbar spine. Dr. Mitchell 11 also identified several medical findings which are negative, including the claimant’s diabetic foot examinations, full range of 12 motion in her major joints, and lack of end organ damage from diabetes or hypertension (Exhibit 3A). Therefore, the undersigned 13 concludes that Dr. Mitchell identified sufficient medical evidence and explanation to support his opinion. Additional medical 14 evidence has been produced since Dr. Mitchell’s evaluation. However, the updated treatment records do not document any 15 significant change in the claimant’s medical conditions, in terms of her symptoms, physical examination findings, or the nature of 16 treatment that she receives, that would undermine the reliability of Dr. Mitchell’s conclusions. Dr. Mitchell’s opinion is consistent 17 with the clinical findings documented in the treatment records, such as the full strength, normal sensation, and normal reflexes 18 observed at her February 2020 musculoskeletal examination (Exhibit 8F). [19] 20 (AR 21-22.) The Court finds it significant the ALJ in fact noted some additional medical records 21 entered the record after Dr. Mitchell issued the opinion, however, specifically made a separate 22 determination that such additional evidence did not document any “significant change” in the 23 Plaintiff’s medical conditions, in terms of the examination findings or nature of treatment, that 24 “would undermine the reliability of Dr. Mitchell’s” opinion, and found that it remained 25 consistent with the longitudinal record as a whole: 26 Defendant correctly argues that, “[c]ontrary to Plaintiff’s assertion, an updated medical 27 opinion is not required simply because additional medical evidence is received after the State 1 common.” Smith v. Saul, No. 1:19-CV-01085-SKO, 2020 WL 6305830 , at *8 (E.D. Cal. Oct. 2 28, 2020) (citing de Hoog v. Comm’r of Soc. Sec., No. 2:13–CV–0235–KJN, 2014 WL 3 3687499, at *7 (E.D. Cal. July 23, 2014) (“In virtually every case further evidence is received 4 after the state agency physicians render their assessments—sometimes additional evidence and 5 records are even received after the A LJ hearing.”); see also Molina v. Berryhill, No. 2:17-CV6 01991 CKD, 2018 WL 6421287 , at *3 (E.D. Cal. Dec. 6, 2018) (“Evidence raising an issue 7 requiring the ALJ to investigate further depends on the case [and] [g]enerally, there must be 8 some objective evidence suggesting a condition that could have a material impact on the 9 disability decision.”). 10 Defendant submits that the cases wherein courts find the RFC not supported due to later 11 received medical records not reviewed by physicians whose opinions the ALJ relies on, involved 12 significant raw medical data that indicated significant changes that would necessitate further 13 development of the record. See Mack v. Saul, No. 118CV01287DADBAM, 2020 WL 2731032 , 14 at *2 (E.D. Cal. May 26, 2020) (“The pending findings and recommendations concluded that the 15 ALJ was not obligated to develop the record any further because he summarized and considered 16 the medical records from 2016 and 2017 in rendering his decision . . . [t]he undersigned does not 17 find this to be sufficient [as first,] the new medical records reviewed by the ALJ provided no 18 indication of the impact the diagnosed impairments had on plaintiff’s ability to work on a 19 function-by-function basis.”) (citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (“As a 20 lay person, ... the ALJ was simply not qualified to interpret raw medical data in functional terms 21 and no medical opinion supported the determination.”); Escudero v. Comm’r of Soc. Sec., No. 22 1:18-CV-01136-EPG, 2019 WL 4917634 , at *1–2 (E.D. Cal. Oct. 4, 2019) (“The Court has 23 reviewed the ALJ’s discussion of the medical record following these two opinions to determine 24 whether they required a physician to interpret the data [and while [s]ome of the descriptions 25 seem self-evident [such as reports of no back pain or objective exam results such as normal 26 strength] . . . other descriptions of medical documents post-dating the physicians’ opinions 27 appear to be very medical in nature and not susceptible to a lay understanding,” such as x-ray 1 opinion of [one non-examining physician] for reasons that would equally apply to the opinion 2 of” another non-examining physician.); Goodman v. Berryhill, No. 2:17-CV-01228 CKD, 2019 3 WL 79016 , at *5 (E.D. Cal. Jan. 2, 2019) (“More problematically, however, the ALJ assigned 4 ‘great weight’ to State agency medical consultants who did not review plaintiff's records past 5 November 2013, but gave little weight to her treating specialist who assessed plaintiff with an 6 ‘L1 compression fracture with worsened kyphosis and worsening pain’ after a November 2014 7 fall [and] [t]he agency doctors' assessments did not account for plaintiff's lumbar vertebra 8 fracture, ankle fracture, ankle surgery, and broken rib sustained after their review . . . these were 9 significant medical events relevant to plaintiff’s physical condition during the alleged period of 10 disability.”). 11 Turning to the overall span of records cited by Plaintiff, Defendant in turn first notes that 12 among the records: one is a routine breast ultrasound (AR 385); one is a copy of a previously13 submitted April 2019 cervical spine scan (AR 412-13), and one is a second opinion by Nurse 14 Practitioner Yang (AR 408-11), which the ALJ found unpersuasive (AR 22-23). Defendant is 15 correct that the breast ultrasound is routine and found no suspicious abnormality and average 16 tissue, and that the April 3, 2019, cervical spine scan was reviewed by Dr. Mitchell. (AR 79.) 17 However, while Plaintiff did not submit a reply brief, and Plaintiff did generally cite this entire 18 range of records, Plaintiff did not highlight these specific records as being significant, but did 19 cite other specific components, that the Court summarized above. 20 One of these records is the second opinion of Nurse Practitioner (“NP”) Yang. (AR 40821 411.) Defendant argues the ALJ properly found the opinion to be unpersuasive, and that Plaintiff 22 identified no specific error with the ALJ’s conclusion that the opinions of NP Yang were not 23 persuasive. The ALJ indeed did weigh both opinions, and provided multiple grounds for finding 24 the opinions unpersuasive: 25 Mai Tong Yang completed statements on March 11, 2019, and August 17, 2020, indicating that the claimant can sit less than two 26 hours and stand/walk less than two hours in an eight-hour workday. Nurse Yang concluded that the claimant can rarely lift 27 and carry 10 pounds and never lift and carry 20 pounds (Exhibits 3F and 6F). Mai Tong Yang is a nurse practitioner at North Marks 1 medical care. The undersigned acknowledges that Nurse Yang is a treating medical provider and she has been involved in the 2 claimant’s regular medical care for multiple years. However, Nurse Yang’s opinions are not persuasive, because she did not provide 3 sufficient medical evidence or other explanation to support the limitations she assessed. For example, Nurse Yang did not identify 4 abnormal examination findings on her assessment forms that correlate to the limitations she assessed. Furthermore, the 5 assessments are inconsistent with information contained in the treatment records. For example, Nurse Yang indicated that the 6 claimant experiences dizziness, fatigue, shortness of breath, drowsiness, fainting, and nausea (Exhibit 3F, pages 3 and 6, and 7 Exhibit 6F, page 1). However, clinic records do not document these symptom complaints. On the contrary, during clinic visits the 8 claimant typically denies dizziness, fatigue, shortness of breath, and other symptoms (Exhibits 1F, 2F, and 5F). Nurse Yang noted 9 that the claimant’s diagnoses include high blood pressure, diabetes, and thyroid disease (Exhibit 3F, page 3, and 6F, page 1). However, 10 her treatment records show that these conditions are well controlled and do not result in significant ongoing symptoms or 11 functional limitations. Nurse Yang concluded that the claimant must elevate her legs with prolonged sitting (Exhibit 3F, page 4, 12 and 6F, page 2), but she did not offer sufficient explanation for this limitation. Furthermore, treatment records do not document an 13 impairment or clinical findings that would justify this limitation, such as lower extremity edema. Nurse Yang concluded that the 14 claimant has significant limitations for reaching, handling, and fingering (Exhibit 3F, page 5, and 6F, page 3), but she provided no 15 medical evidence or explanation to support this part of the assessment. Furthermore, treatment records do not document an 16 impairment that would reasonably cause these limitations, and the claimant has not complained to her medical providers of symptoms 17 affecting her upper extremities. Nurse Yang did not provide sufficient medical evidence or explanation to justify the conclusion 18 that the claimant would be off task 25 percent or more during a workday, that she is incapable of even low stress work, or that she 19 would be absent from work more than four days per month (Exhibits 3F and 6F). North Marks clinic records do not document 20 medical findings that support Nurse Yang’s opinions. On the contrary, clinic records show that the claimant’s physical 21 examinations were usually unremarkable. On a few occasions the claimant exhibited limited flexion and extension of her lumbar 22 spine, but the clinic records do not document other medical findings that would support Nurse Yang’s opinions. Notably, on 23 March 11, 2019, the day that Nurse Yang completed the first assessment, the claimant’s review of symptoms was negative and 24 her physical examination was unremarkable (Exhibit 2F, page 18). Similarly, on August 17, 2020, the date that Nurse Yang completed 25 the second form, the claimant’s review of symptoms was again unremarkable, other than high blood pressure, and her physical 26 examination was benign (Exhibit 5F, page 3). 27 (AR 22-23.) Again, Plaintiff did not challenge the ALJ’s weighing of the physician opinions under the regulations, generally. The Court finds the ALJ did not err due to NP Yang’s second 1 opinion coming after Dr. Mitchell’s and being privy to the additional record discussed herein. 2 As to the remaining two exhibits contained within the Plaintiff’s cited span of records, 3 Defendant contends they consist of the records of Nurse Practitioner Yang from July 2019 4 through August 2020 (AR 386-407), and the sole treatment note from J&P Spine Center (AR 5 414-19). Defendant submits these records do not reasonably undermine the prior administrative 6 medical findings of Dr. Mitchell such that a reasonable factfinder would have been compelled to 7 conclude the findings of Dr. Mitchell’s were unpersuasive; nor do they consist of raw medical 8 date beyond an ALJ’s lay expertise to evaluate. Plaintiff submitted no reply in response to these 9 arguments, and the Court agrees with Defendant. 10 Defendant submits that the updated records from NP Yang document no long-term, 11 appreciable change in Plaintiff’s impairments. (Opp’n 19.) In terms of medical signs, Defendant 12 proffers there are only two changes noted in the updated record: Plaintiff presented with 13 restricted range of motion in her neck and back in October 2019 (AR 401-02); and with poor 14 posture, limited cervical range of motion due to pain, tenderness in her cervical spine and base of 15 her skull, and a positive cervical compression sign when evaluated by J&P Spine Center in 16 February 2020. (AR 417-18.) Defendant argues these medical signs were not reproduced before 17 October 2019 or since February 2020. 18 In terms of treatment, Defendant notes Plaintiff was prescribed Norco and 19 cyclobenzaprine in July 2019, but she was provided no refills of cyclobenzaprine and only one 20 refill of 20 tablets of Norco on October 24 (AR 402, 407); and was provided no further Norco or 21 cyclobenzaprine (AR 387, 388-89, 390, 392). Defendant acknowledges that Plaintiff also 22 received one occipital injection in February 2020. (AR 418.) However, Defendant submits that 23 this only demonstrates that Plaintiff received escalated treatment for a period of less than 12 24 months from July 2019 through February 2020, and at most, the updated records document a 25 short-term worsening in Plaintiff’s conditions that did not last for a continuous period of 12 26 months. Plaintiff does not address Defendant’s argument that these records at most only show a 27 temporary worsening of conditions and diagnoses that were present in previous records. 1 evidence -- both in his general evaluation of the medical evidence, with which Plaintiff does not 2 allege error, and in his evaluation of the medical opinion evidence. The Court finds the ALJ 3 reasonably considered the record did not show a worsening of Plaintiff’s conditions to the extent 4 that it undermined Dr. Mitchell’s findings such that those findings must have been rejected. 5 Indeed, despite evaluating that same evidence in the general discussion of the medical opinion 6 evidence and when evaluating the opinions of Nurse Practitioner Yang, Plaintiff has not alleged 7 any error with those analyses. 8 The Court is not unreceptive to the type of argument presented by Plaintiff here. See, 9 e.g., Daniel Garcia v. Comm’r of Soc. Sec., No. 1:18-CV-00914-SAB, 2019 WL 3283171 , at *7 10 (E.D. Cal. July 22, 2019); Fox v. Comm’r of Soc. Sec., No. 119CV00146LJOSAB, 2019 WL 11 6724355, at *14–15 (E.D. Cal. Dec. 11, 2019), report and recommendation adopted, No. 12 119CV00146LJOSAB, 2020 WL 469363 (E.D. Cal. Jan. 29, 2020). Here however, the Court 13 does not find the ALJ improperly interpreted medical data, or improperly made an RFC 14 determination relying on an opinion from a physician that did not review a sufficient longitudinal 15 record. See Meadows v. Saul, 807 F. App’x 643 , 647 (9th Cir. 2020) (“[A]lthough the non16 examining state agency physicians did not review any evidence beyond August 2014, the ALJ 17 did not err in giving great weight to the physicians’ opinions. There is always some time lapse 18 between a consultant’s report and the ALJ hearing and decision, and the Social Security 19 regulations impose no limit on such a gap in time. At the time they issued their opinions, the 20 non-examining experts had considered all the evidence before them, satisfying the requirements 21 set forth in 20 C.F.R. § 404.1527 (c)(3).”); Goodman v. Berryhill, No. 2:17-CV-01228 CKD, [22] 2019 WL 79016 , at *5 (E.D. Cal. Jan. 2, 2019) (“ALJ assigned ‘great weight’ to State agency 23 medical consultants who did not review plaintiff's records past November 2013, but gave little 24 weight to her treating specialist who assessed plaintiff with an ‘L1 compression fracture with 25 worsened kyphosis and worsening pain’ after a November 2014 fall [and] [t]he agency doctors’ 26 assessments did not account for plaintiff's lumbar vertebra fracture, ankle fracture, ankle surgery, 27 and broken rib sustained after their review . . . these were significant medical events relevant to 1 The ALJ was not required to adopt the findings or opinion of any of the physicians but 2 rather was required to determine the RFC based on all of the evidence in the record. See 20 3 C.F.R. § 404.1527 (d)(2) (“Although we consider opinions from medical sources on issues such 4 as . . . your residual functional capacity . . . the final responsibility for deciding these issues is 5 reserved to the Commissioner.”); Rounds v. Comm’r of Soc. Sec., 807 F.3d 996, 1006 (9th Cir. 6 2015) (“the ALJ is responsible for translating and incorporating clinical findings into a succinct 7 RFC”); Vertigan, 260 F.3d at 1049 (“It is clear that it is the responsibility of the ALJ, not the 8 claimant’s physician, to determine residual functional capacity.”). The regulations provide that 9 the agency “will not defer or give any specific evidentiary weight, including controlling weight, 10 to any medical opinion(s) or prior administrative medical finding(s), including those from your 11 medical sources.” 20 C.F.R. § 404 .1520c(a). 12 The Court finds the ALJ utilized substantial evidence in the record in making the RFC 13 determination, and Plaintiff has not demonstrated remandable error. Further, to the extent 14 Plaintiff argues the record needs to be further developed, the facts in this case are not similar to 15 other instances in which the ALJ was found to have a duty to further develop the record. See 16 Tonapetyan, 242 F.3d at 1150-51 (ALJ erred by relying on testimony of physician who indicated 17 more information was needed to make diagnosis); Hilliard v. Barnhart, 442 F.Supp.2d 813 , 81818 19 (N.D. Cal. 2006) (ALJ erred by failing to develop record where he relied on the opinion of a 19 physician who recognized he did not have sufficient information to make a diagnosis). The 20 Court finds the ALJ’s RFC determination to be proper, reasonable, based on substantial evidence 21 in the record, and not deficient due to lack of use of a medical opinion. See Smolen, 80 F.3d at 22 1279 (substantial evidence more than a scintilla, but less than a preponderance); Burch, 400 F.3d 23 at 679 (“Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s 24 conclusion that must be upheld.”). 25 / / / 26 / / / 27 / / / 1 V. 2 CONCLUSION AND ORDER 3 Based on all of the foregoing reasons, the Court finds: (1) substantial evidence supports ALJ’s step four findings concerning Plaintiff's past relevant work and substantial gainful 5 | activity; and (2) the ALJ’s RFC determination is proper and supported by substantial evidence in 6 | the record. The Court concludes the ALJ’s decision is free from remandable legal error. 7 Accordingly, IT IS HEREBY ORDERED that Plaintiff's appeal from the decision of the 8 | Commissioner of Social Security is DENIED. It is FURTHER ORDERED that judgment be 9 | entered in favor of Defendant Commissioner of Social Security and against Plaintiff Rachel 10 | Lillian Prieto. The Clerk of the Court is directed to CLOSE this action. [11] 0 IT IS SO ORDERED. FA. ee 13 | Dated: _ September 2, 2022 14 UNITED STATES MAGISTRATE JUDGE