(SS) Durham v. Commissioner of Social Security

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 SUSAN DURHAM, No. 2:20-cv-1852-KJN

12 Plaintiff, ORDER ON PARTIES’ CROSS MOTIONS

FOR SUMMARY JUDGMENT

13 v.

(ECF Nos. 20, 23.)

14 COMMISSIONER OF SOCIAL

SECURITY,

15

Defendant.

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17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security

18 denying her application for Disability Insurance Benefits under Title II of the Social Security

19 Act.1 In her summary judgment motion, plaintiff contends the Administrative Law Judge

20 (“ALJ”) erred in: (A) failing to offer clear and convincing reasons for discrediting plaintiff’s

21 symptom testimony; and (B) failing to provide any evidence to support plaintiff’s Residual

22 Functional Capacity (“RFC”). The Commissioner opposed, and filed a cross-motion for

23 summary judgment.

24 For the reasons set forth below, the court DENIES plaintiff’s motion for summary

25 judgment, GRANTS the Commissioner’s cross-motion, and AFFIRMS the final decision of the

26 Commissioner.

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1 This action was referred to the undersigned pursuant to Local Rule 302(c)(15), and both parties

28 consented to proceed before a United States Magistrate Judge for all purposes. (ECF Nos. 8, 15.)

1 I. BACKGROUND AND ALJ’S FIVE-STEP ANALYSIS2

2 On September 11, 2014, plaintiff applied for Disability Insurance Benefits, alleging an

3 onset date of September 1 0, 2010. Plaintiff claimed disability due to “bells palsy, tendonitis,

4 hiatal hernia, 5 herniated disc[s], and fibromyalgia.” (Administrative Transcript (“AT”) 395-96,

5 423.) Plaintiff’s application was denied initially and upon reconsideration. (AT 143-57, 158-72.)

6 Plaintiff sought review of these denials with an ALJ on March 1, 2017. (AT 111-42.) The ALJ

7 issued an unfavorable decision on A ugust 15, 2017. (AT 173-96.) Plaintiff appealed to the

8 Appeals Council, who remanded for reevaluation of any mental functional limitations and to

9 determine if plaintiff can return to past work, or to obtain vocational expert (“VE”) testimony to

10 determine if any jobs would accommodate any mental impairments found. (AT 197-203.) At a

11 second hearing, plaintiff testified about her conditions, and a VE testified regarding the ability of

12 a person with plaintiff’s impairments to perform various jobs. (AT 53-110.)

13 On June 19, 2019, the ALJ issued a decision determining plaintiff was not disabled. (AT

14 9-36.) As an initial matter, the ALJ determined plaintiff met insured status through June 30,

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16 2 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social

Security program. 42 U.S.C. §§ 401 et seq. Disability is defined, in part, as an “inability to

17 engage in any substantial gainful activity” due to “a medically determinable physical or mental

impairment. . . .” 42 U.S.C. § 423(d)(1)(a). A parallel five-step sequential evaluation governs

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eligibility for benefits. See 20 C.F.R. §§ 404.1520, 404.1571—76; Bowen v. Yuckert, 482 U.S.

19 137, 140—42 (1987). The following summarizes the sequential evaluation:

20 Step one: Is the claimant engaging in substantial gainful activity? If so, the

claimant is found not disabled. If not, proceed to step two.

21 Step two: Does the claimant have a “severe” impairment? If so, proceed to step

three. If not, then a finding of not disabled is appropriate.

22

Step three: Does the claimant’s impairment or combination of impairments meet

23 or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the

claimant is automatically determined disabled. If not, proceed to step four.

24 Step four: Is the claimant capable of performing past relevant work? If so, the

claimant is not disabled. If not, proceed to step five.

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Step five: Does the claimant have the residual functional capacity to perform any

other work? If so, the claimant is not disabled. If not, the claimant is disabled.

26

27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The claimant bears the burden of proof in

the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The

28 Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.

1 2017. (AT 15.) At step one, the ALJ concluded plaintiff had not engaged in substantial gainful

2 activity since 2011. (Id.) At step two, the ALJ determined plaintiff had the following severe

3 impairments: obesity, lu m bar and cervical facet arthritis, right sacroiliac joint degeneration, left

4 partial thickness rotator cuff tear, depression, and anxiety. (AT 15-19.) The ALJ also found the

5 following non-severe impairments: right ankle lateral ganglion cyst, minimal subacromial

6 bursitis and minimal hypertrophic degeneration of the acromioclavicular joint of the right

7 shoulder, esophagitis, antral gastriti s, large hiatus hernia, migraine headaches, thoracic

8 neuropathy, chronic pain syndrome, bell's palsy, PCOS, otitis media, tinea corporis, and anemia.

9 (Id.) At step three, the ALJ determined plaintiff’s severe mental impairments were “mild” to

10 “moderate,” and did not meet or medically equal the severity of an impairment listed in Appendix

11 1. (AT 19-21) (citing 20 C.F.R. Part 404, Subpart P, Appendix 1). The ALJ then found plaintiff

12 had the RFC to perform less than a full range of light work, except she:

13 was able to lift and carry 20 pounds frequently[;] was able to lift

and carry 20 pounds frequently and 25 pounds occasionally[;] was

14 limited to occasional climbing of ramps and stairs[;] could not

climb ladders, ropes, or scaffolds[;] was unlimited in balancing, but

15 was limited to occasional stooping and to frequent kneeling,

crouching, and crawling[;] was limited to occasional reaching with

16 her left, non-dominant, upper extremity[;] was limited to frequent

interaction with supervisors and coworkers, and to only superficial

17 interaction with the public[;] was limited to a workplace with no

more than occasional changes to the workplace setting and routine[;

18 and] required a sit-stand option, alternating every 30 minutes

without time off-task.

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20 (AT 21.) In reaching this conclusion, the ALJ considered plaintiff’s intense, persistent, and

21 limiting symptoms alongside the medical evidence and opinions of state agency medical and

22 psychological consultants. (AT 21-28.) The ALJ assigned “great weight” to the state agency

23 medical consultants’ opinions with “some modification,” (requiring a “sit-stand option,”) and

24 “partial weight” to the psychological consultants’ opinions. (AT 25, 27.) The ALJ found the

25 alleged severity and limiting effects of plaintiff’s reported symptoms were “not entirely

26 consistent” with the medical evidence and other evidence in the record. (AT 21-25.) The ALJ

27 concluded at step four plaintiff was unable to perform past relevant work, but there were jobs

28 existing in significant numbers in the national economy she could perform. (AT 28-30.)

1 Plaintiff then filed this action requesting judicial review of the Commissioner’s final

2 decision; the parties filed cross-motions for summary judgment. (ECF Nos. 1, 20, 23.)

3 II. LEGAL STAND A RD

4 The court reviews the Commissioner’s decision de novo, and should reverse “only if the

5 ALJ's decision was not supported by substantial evidence in the record as a whole or if the ALJ

6 applied the wrong legal standard.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017).

7 Substantial evidence is more than a mere scintilla, but less than a preponderance; i.e. “such

8 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

9 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). “The ALJ is responsible for

10 determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Id.

11 The court will uphold the ALJ’s conclusion where “the evidence is susceptible to more than one

12 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Further, the

13 court may not reverse the ALJ’s decision on account of harmless error. Buck, 869 F.3d at 1048.

14 III. ISSUES PRESENTED

15 Plaintiff argues the ALJ erred in failing to: (A) provide clear and convincing reasons for

16 discrediting plaintiff’s symptom testimony; and (B) provide “any evidence” to support the RFC.

17 (ECF No. 20 at 6-17.) Plaintiff seeks a remand for benefits or further proceedings. (Id. at 18.)

18 The Commissioner disagrees, arguing the decision provides substantial evidence to

19 support the ALJ’s assessment of: (A) the subjective evidence because plaintiff’s allegations were

20 inconsistent with the medical evidence, plaintiff’s daily activities, and the medical opinion

21 evidence; and (B) the physical opinion evidence because the expert opinions from the medical

22 consultants were consistent with the medical record. (ECF No. 23 at 5-11.) Thus, the

23 Commissioner contends the decision as a whole is supported by substantial evidence and free

24 from reversible error, which should result in affirmance. (Id. at 11.)

25 IV. DISCUSSION

26 A. The ALJ properly identified and rejected plaintiff’s subjective symptom testimony.

27 Plaintiff alleges the ALJ failed to provide clear and convincing reasons to discount

28 plaintiff’s symptom testimony. (ECF No. 20 at 10.) Plaintiff asserts the ALJ “only” cited to the

1 medical record and treatment notes when discounting the testimony, and the “massive record”

2 does not support the ALJ’s claim plaintiff does not frequently attend to her ailments. (Id.)

3 Legal Standards

4 A claimant’s statements of subjective symptoms alone are insufficient grounds to establish

5 disability. 20 C.F.R § 404.1529(a). If an ALJ was required to believe every allegation of pain or

6 impairment, disability benefits would run afoul of the Social Security Act and its purpose. See

7 Treichler v. Comm’r, 775 F.3d 109 0, 1106 (9th Cir. 2014). In evaluating the extent to which an

8 ALJ must credit the claimant’s report of their symptoms, the Ninth Circuit has stated:

9 First, the ALJ must determine whether the claimant has presented objective

medical evidence of an underlying impairment which could reasonably be

10 expected to produce the pain or other symptoms alleged. In this analysis, the

claimant is not required to show that her impairment could reasonably be

11 expected to cause the severity of the symptom she has alleged; she need only

show that it could reasonably have caused some degree of the symptom. Nor must

12 a claimant produce objective medical evidence of the pain or fatigue itself, or the

severity thereof.

13 If the claimant satisfies the first step of this analysis, and there is no evidence of

malingering, the ALJ can reject the claimant's testimony about the severity of her

14 symptoms only by offering specific, clear and convincing reasons for doing so.

This is not an easy requirement to meet: The clear and convincing standard is the

15 most demanding required in Social Security cases.

16 Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995,

17 1014-15 (9th Cir. 2014)).

18 The ALJ’s reasons for discounting or rejecting a claimant’s subjective symptom testimony

19 must be “sufficiently specific to allow a reviewing court to conclude the adjudicator . . . did not

20 arbitrarily discredit a claimant’s testimony.” Brown-Hunter v. Colvin, 806 F.3d 487, 483 (9th

21 Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)). Examples of

22 “specific, clear and convincing reasons” for discounting or rejecting a claimant’s subjective

23 symptom testimony include: the effectiveness of or noncompliance with a prescribed regime of

24 medical treatment, prescription of conservative treatment, inconsistencies between a claimant’s

25 testimony and conduct (including daily activities), and whether the alleged symptoms are

26 consistent with the medical evidence of record. See Tommasetti, 533 F.3d at 1040; Lingenfelter

27 v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). A lack of corroborating, objective medical

28 evidence alone is insufficient grounds for an ALJ to discount a claimant’s subjective symptoms;

1 however, it is a factor the ALJ may consider. See Rollins v. Massanari, 261 F.3d 853, 857 (9th

2 Cir. 2001) (citing 20 C.F.R § 404.1529(c)(2)).

3 Analysis

4 At her second hearing, plaintiff testified about her back, neck, shoulder, hand, and spine

5 pain; gastrointestinal pain; migraine headaches; and mental health symptoms. (See e.g., AT 21-

6 22, 70-92.) Plaintiff testified her worst impairments relate to her back and shoulder pain. (AT

7 72.) Plaintiff primarily argues the l ack of medical evidence was the sole basis for the ALJ to

8 discredit plaintiff’s symptom testimony. (ECF No. 20 at 10.) Contrary to plaintiff’s assertion the

9 ALJ found, in addition to the lack of medical evidence, several reasons for discounting plaintiff’s

10 testimony, including conservative treatment, and conditions managed with medication. (AT 23-

11 27.) See Tommasetti, 533 F.3d at 1040; Lingenfelter, 504 F.3d at 1040; Rollins, 261 F.3d at 857.

12 Further, to the extent the decision lacks any clarity, the rationale is discernable. See Molina v.

13 Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (“Even when an agency explains its decision with

14 less than ideal clarity, we must uphold it if the agency's path may reasonably be discerned.”).

15 Beginning with plaintiff’s testimony related to her back, neck, shoulder, and spine, the

16 ALJ noted the diagnoses from various physicians, including neuropathic spondylopathy of the

17 lumbar spine and right sacroiliac joint degeneration. (AT 23, citing AT 779, 790, 792-93, 965,

18 987.) The ALJ recognized diagnostic tests in 2014 revealed mild reversal and narrowing within

19 plaintiff’s cervical spine. (Id., citing AT 558, 851.) However, the ALJ also noted nerve

20 conduction and electromyography studies of her upper extremities were normal in October 2015.

21 (Id., citing AT 722-734.) Plaintiff only noted pain in her left shoulder, testifying her right

22 shoulder is “okay.” (AT 17, 123.) The ALJ also observed a left shoulder x-ray from November

23 2018 was negative. (AT 23, citing 1634.) Inconsistency with medical records is permissibly

24 included in the ALJ’s resolution of plaintiff’s symptom testimony. See Rollins, 261 F.3d at 857.

25 The ALJ also noted that many of plaintiff’s symptoms were treated conservatively.

26 Regarding her back and shoulder pain, the ALJ noted plaintiff received medial branch blocks,

27 nerve block injections, and rhizotomy, along with pain medication and outpatient visits. (AT 24).

28 Additionally, the ALJ noted in June 2015 plaintiff reported a transcutaneous electrical nerve

1 stimulation (TENS) unit, medication, and ice tends to improve her symptoms. (Id.) Plaintiff

2 testified her doctor said “absolutely no” back surgery. (AT 21-22, citing AT 90.) Although the

3 record shows plaintiff ha s a history of left shoulder pain, the ALJ found the record did not

4 indicate plaintiff had any operative procedures, nor did she receive physical therapy for the left

5 shoulder. (AT 23.) In fact, plaintiff only received some injections into the shoulder joint. (AT

6 23, citing 1064.) See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (stating “evidence of

7 ‘conservative treatment’ is sufficien t to discount a claimant's testimony regarding severity of an

8 impairment”); see e.g., Freeman v. Comm’r, 2017 WL 3581925, at *6 (E.D. Cal. Aug. 18, 2017)

9 (finding the ALJ properly considered conservative treatment, specifically noting “plaintiff was

10 not a surgical candidate.”). Plaintiff also complained of numbness in her hands, which she

11 believed was related to her neck. (AT 21, 73-74.) The ALJ noted normal nerve conduct and

12 electromyography studies, and the neurologist suggested protective elbow pads for possible ulnar

13 neuropathy. (AT 17, citing 727, 733.) See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir.

14 1999) (rejecting subjective pain complaints where petitioner's “claim that she experienced pain

15 approaching the highest level imaginable was inconsistent with the ‘minimal, conservative

16 treatment’ that she received”).

17 The ALJ noted other times plaintiff received treatment she deemed conservative,

18 including for gastritis and a large hiatal hernia. (AT 24.) Specifically, plaintiff’s treatment for

19 such impairments included anti-reflux measures, such as diet, weight loss, and smoking cessation.

20 (Id.) Evidence of conservative treatment is sufficient to discount a claimant’s testimony

21 regarding the severity of an impairment. See Tommasetti, 533 F.3d at 1039-40 (finding plaintiff

22 responded favorably to conservative treatment, including physical therapy and the use of anti-

23 inflammatory medication, a TENs unit, and a lumbosacral corset undermined plaintiff’s report

24 regarding the disabling nature of his pain). Further, the ALJ found treatment notes of plaintiff’s

25 history of medication noncompliance relating to her gastritis and other impairments. (AT 17,

26 citing AT 671.) see Id. at 1039 ([T]he ALJ may consider . . . [the] unexplained or inadequately

27 explained failure to seek treatment or to follow a prescribed course of treatment . . . .”).

28 Next, the ALJ spoke to plaintiff’s alleged daily headache symptoms, noting plaintiff’s

1 “headaches have been mostly treated with medications, including Topamax, which appears to

2 have decreased the frequency of the migraines to approximately one and occasionally two in a

3 week in October 2015.” ( AT 18, citing 727-28.) Plaintiff also received nerve blocks in January

4 2017, but the ALJ noted there is no indication she continued to receive them on a regular basis.

5 (AT 18, citing 1170.) See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (discrediting

6 plaintiff’s subjective symptom testimony for lack of consistent treatment). The ALJ found no

7 evidence indicating any significant neurological conditions related to her migraines and

8 headaches, nor any evidence indicating hospitalization. (AT 18.) See Parra, 481 F.3d at 750-51

9 (discounting plaintiff’s credibility when medical reports established a non-severe impairment and

10 conservative treatment); see, e.g., Warn v. Colvin, 2013 WL 943411, *16 (E.D. Cal. March 11,

11 2013) (citing “plaintiff receives conservative treatment…and has never been hospitalized.”)

12 The ALJ concluded by discussing plaintiff’s mental health symptoms including: “anxiety,

13 depression, irritability, hopelessness, helplessness, crowd avoidance, crying spells, panic,

14 paranoia, poor sleep, racing thoughts, stress, and decreased need for sleep.” (AT 26.) Although

15 plaintiff had numerous examinations, the ALJ properly noted the treatment notes do not support

16 the allegations and mostly show normal findings. (AT 26, citing 534-65.) The ALJ explained

17 plaintiff’s mental symptoms were stable with relatively conservative mental health treatment.

18 (AT 26). See Tommasetti, 533 F.3d at 10439-40; see also, e.g., Althoff-Gromer v. Comm’r, 2019

19 WL 1316710, *12 (E.D. Cal. March 22, 2019) (finding the ALJ properly discounted plaintiff’s

20 symptom testimony for conservative treatment when mental health treatment was “limited to

21 outpatient visits and effective psychiatric medications.”). The ALJ also noted plaintiff testified at

22 the hearing she had yet to start therapy. (AT 27.) See Burch, 400 F.3d at 681 (discrediting

23 plaintiff’s subjective symptom testimony related to her depression and fatigue for lack of

24 treatment); see also Tommasetti, 533 F.3d at 1039 ([T]he ALJ may consider…[the] unexplained

25 or inadequately explained failure to seek treatment . . . .”); see, e.g., Mendoza v. Colvin, 2016 WL

26 4126706, *10 (E.D. Cal. Aug. 2, 2016) (finding the ALJ permissibly discounted plaintiff’s

27 testimony because her mental health treatment was “sporadic at best”).

28 In addition to her primary argument, plaintiff contends the ALJ erred in stating “[s]he

1 expected to see ‘restrictions’ placed on the plaintiff in the record if plaintiff’s testimony was to be

2 believed.” (ECF No. 20 at 10.) However, it appears ALJ was simply noting the treatment notes

3 do not indicate any restri c tions, which is an appropriate inquiry for an ALJ assessing credibility.

4 See 20 C.F.R § 404.1529(c)(3) (“. . . any symptom-related functional limitations and restrictions

5 that your medical sources or nonmedical sources report. . . .”); see also Tommasetti, 533 F.3d at

6 1040 (noting it is appropriate for the ALJ to consider whether the alleged symptoms are

7 consistent with the medical evidenc e of record”).

8 Finally, plaintiff contends the ALJ conflagrates “stable” with symptom free or able to

9 work. (ECF No. 20 at 10.) In determining the severity and limiting effects of plaintiff’s reported

10 symptoms are not as significant as alleged, the ALJ stated “the foregoing summary of [plaintiff’s]

11 symptoms and treatment for her severe physical impairments shows that her physical symptoms

12 were relatively stable and controlled with the prescribed treatment regimen.” (AT 25.) Plaintiff

13 relies on Lule v. Berryhill, finding the ALJ erred in evaluating the condition because stability

14 alone does not support a conclusion the claimant is “able to perform work for an eight-hour day.”

15 2017 U.S. Dist. LEXIS 19392, at *18-19, 2017 WL 541096 (E.D. Cal. Feb 9, 2017); see also

16 Plummer v. Berryhill, No. 1: 16-cv-01137-JLT (E.D. Cal. Mar. 23, 2018) (finding the ALJ erred

17 by equating “stability” with “functionality” without identifying any evidence supporting the

18 conclusion that treatment controlled symptoms). In Lule, plaintiff’s doctor opined her condition

19 was “stable and not worsening” but believed plaintiff had moderate limitations with her daily

20 activities and could only sit, stand, or walk for “less than 2 hours” in an eight hour day. Lule,

21 2017 U.S. Dist. LEXIS 19392, at *18-19. Here, however, the ALJ also relied on the state

22 physician reports, assigning them “great weight.” (AT 25.) These reports opined plaintiff “could

23 stand and/or walk for a total of about six hours and sit for about six hours in an eight-hour

24 workday,” and “occasionally climb ramps and stairs but never climb ladders, ropes, or scaffolds.”

25 (Id.) This opinion is significantly different than the opinion given in Lule; therefore, the ALJ did

26 not conflagrate “stable” with symptom free or able to work. However, even accepting plaintiff’s

27 contention arguendo, it was harmless as the undersigned has already found the ALJ properly

28 relied upon other reasons to discount plaintiff’s testimony, as noted above. See Molina, 674 F.3d

1 at 1115 (noting courts find harmless error when “there remains substantial evidence supporting

2 the ALJ’s decision and the error ‘does not negate the validity of the ALJ’s ultimate

3 conclusion.’”).

4 In sum, the ALJ adequately summarized plaintiff’s hearing testimony and permissibly

5 concluded that while her symptoms could reasonably be expected to cause the alleged symptoms,

6 her statements “concerning the intensity, persistence and limiting effects of these symptoms are

7 not entirely consistent with the med ical evidence and other evidence in the record.” (AT 22-23.)

8 Critically, the ALJ supported this conclusion with legally sufficient reasons for rejecting the

9 plaintiff’s more severe subjective complaints. See Tommasetti, 533 F.3d at 1040; Molina, 674

10 F.3d at 1121.

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B. The ALJ supported the RFC with substantial evidence and had no further duty to

12 develop the record.

13 Plaintiff asserts the ALJ did not support the RFC with substantial evidence, arguing the

14 ALJ relies on two state agency medical consultants’ opinions, which predate three years of

15 medical developments. (ECF No. 20 at 11-15.) Plaintiff further argues these additional medical

16 records triggered the ALJ’s duty to develop the record with updated opinions. (AT 15.)

17 Legal Standard

18 A claimant’s RFC is “the most [claimant] can still do despite [claimant’s] limitations.”

19 and must be “based on all the relevant evidence” in the record. 20 C.F.R. § 404.1545(a)(1). “The

20 ALJ must consider a claimant's physical and mental abilities, [§ 404.1520(b) and (c)], as well as

21 the total limiting effects caused by medically determinable impairments and the claimant's

22 subjective experiences of pain, [§ 404.1520(e)].” Garrison, 759 F.3d at 1011. At step four the

23 RFC is used to determine if a claimant can do past relevant work and at step five to determine if a

24 claimant can adjust to other work. Id.

25 The ALJ has a “special duty to fully and fairly develop the record and to assure that the

26 claimant’s interests are considered.” Mayes v. Massanari, 276 F.3d 453, 559-60 (9th Cir. 2001).

27 The ALJ’s duty to further develop the record is triggered where the evidence is ambiguous or

28 inadequate to allow for proper evaluation. Id.

1 Analysis

2 Plaintiff argues the RFC is not supported by substantial evidence in the record because no

3 physician reviewed the s u bsequent treatment notes related to plaintiff’s “chronic back and neck

4 pain, arm pain, and hernia.” (ECF No. 20 at 15-16.) According to plaintiff, this lack of physician

5 review triggered the ALJ’s duty to develop the record, by obtaining a third consultative exam, and

6 such failure to properly develop the record resulted in a substantial likelihood of prejudice. (Id.)

7 Specifically, plaintiff cites to a 201 6 report of “acromioclavicular joint degeneration and

8 tenderness of the over laying muscle of the left shoulder and a prescription for elbow pads that

9 must be worn 24 hours a day.” (See AT 985, 1649.) Plaintiff also cites to treatments, including

10 injections and two rhizotomies in late 2015, long term narcotic pain management in 2016, and

11 nerve blocks in 2017. (See also AT 987, 1651, 950, 959, 981, 983, 1053, 1079, 1086, 1170,

12 1651.) Finally, plaintiff asserts a diagnosis of a large hiatal hernia following the opinions. (See

13 AT 1179.) Plaintiff contends a substantial likelihood exists that with a third consultative

14 evaluation, the ALJ would have assessed a more restrictive RFC, “[p]articularly due to

15 [plaintiff’s] severe hernia.” (ECF No. 20 at 1516.)

16 A review of the ALJ’s decision shows the ALJ discussed the records plaintiff identifies

17 along with the other objective medical evidence. Despite plaintiff’s contention her impairments

18 worsened, the ALJ noted the subsequent treatment notes, which continued to support the medical

19 consultants’ opinions and the “great weight” the ALJ afforded them. (Id.) See 20 C.F.R.

20 § 404.1527(c)(4) (“Generally, the more consistent a medical opinion is with the record as a

21 whole, the more weight we will give to that medical opinion.”); see also, e.g., Sportsman v.

22 Colvin, 637 F.App'x 992, 995 (9th Cir. 2016) (finding it is not in error for a state agency

23 consultant to fail to review subsequent medical records, if the ALJ reviews the entire record and

24 concludes the later-dated medical records are consistent with the overall medical evidence).

25 Although the ALJ did not explicitly state the subsequent medical records are consistent with the

26 overall medical record, it is easily discernable that this is the intent of the decision. See Molina,

27 674 F.3d at 1121 (“Even when an agency explains its decision with less than ideal clarity, we

28 must uphold it if the agency's path may reasonably be discerned.”). The ALJ specifically noted

1 || doctors treated plaintiff with a large hiatal hernia in October 2018, but “later considered [the

2 | hernia] small.” (AT 16, citing AT 1523, 1624.) Further, plaintiff already received two

3 || consultative exams reporting similar findings after examination and review of the medical

4 || records. See, e.g., Meadows, 807 F.App'x at 647 (“There is always some time lapse between a

5 || consultant's report and the ALJ hearing and decision, and the Social Security regulations impose

6 || no limit on such a gap in time.”). Based on the ALJ’s review of the subsequent medical evidence,

7 || this evidence would not have changed the medical consultants’ opinions or the ALJ's

8 | decision. See, e.g., Morin v. Saul, 840 F.App'x 77, 79 (9th Cir. 2020) (“While the state agency

9 || consultants did not review evidence that post-dated their reports, [plaintiff] has not shown that

10 || this process resulted in any harmful error, especially as the ALJ had the opportunity to review the

11 || entire record.”) (citing Brown-Hunter, 806 F.3d at 492)).

12 To the extent plaintiff argues the ALJ failed to fully develop the record, her argument is

13 || unpersuasive. Here, there is no indication there was any ambiguity or the record was inadequate;

14 | in fact, the ALJ discussed all subsequent medical records plaintiff identifies. (AT 15-25.)

15 || Because the medical evidence regarding Plaintiff's impairments is neither ambiguous nor

16 || inadequate, the ALJ had no duty to develop the record further. Mayes, 276 F.3d at 459.

17 | V. CONCLUSION

18 Having resolved plaintiffs claims of error, the court finds that the ALJ’s decision

19 || supported by substantial evidence in the record as a whole. Buck, 869 F.3d at 1048.

20 | Accordingly, IT IS HEREBY ORDERED that:

21 1. Plaintiff's motion for summary judgment (ECF No. 20) is DENIED;

22 2. The Commissioner’s cross-motion (ECF No. 23) is GRANTED;

23 3. The final decision of the Commissioner is AFFIRMED, and judgment is entered

24 for the Commissioner; and

25 4. The Clerk of Court shall CLOSE this case.

26 || Dated: February 1, 2022

durh.1852 Ae ¥ L Notrrmann—

28 KENDALL J. NE

1 UNITED STATES MAGISTRATE JUDGE