James Ezra Strong Cockrell v. Andrew Saul

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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JAMES S.C.,1 ) NO. CV 19-5991-KS

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Plaintiff, )

12 v. )

MEMORANDUM OPINION AND ORDER

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13 )

ANDREW M. SAUL, Commissioner

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of Social Security, )

15 Defendant. )

16 _________________________________ )

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18 INTRODUCTION

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20 Plaintiff filed a Complaint on July 11, 2019, seeking review of the denial of his

21 application for Supplemental Security Income (“SSI”) pursuant to Title XVI of the Social

22 Security Act. (Dkt. No. 1.) The parties have consented, pursuant to 28 U.S.C. § 636(c), to

23 proceed before the undersigned United States Magistrate Judge. (Dkt. Nos. 11, 12.) On April

24 27, 2020, the parties filed a Joint Stipulation. (Dkt. No. 19 (“Joint Stip.”).) Plaintiff seeks an

25 order reversing the Commissioner’s decision with an award of disability benefits or, in the

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1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the

recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United

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States.

1 alternative, a remand for further proceedings. (Joint Stip. at 34.) The Commissioner requests

2 that the ALJ’s decision be affirmed or, in the alternative, that the matter be remanded for

3 further proceedings. (Id. at 34-35.) The Court has taken the matter under submission without

4 oral argument.

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6 SUMMARY OF ADMINISTRATIVE PROCEEDINGS

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8 Plaintiff was born on August 4, 1995. (Administrative Record (“AR”) 172.) On August

9 1, 2003, the Commissioner determined that Plaintiff was disabled as of June 4, 2003 (AR 160),

10 based on the medically determinable impairment of splenomegaly (AR 162). On May 14,

11 2014, the Commissioner determined that Plaintiff was no longer disabled as of May 1, 2014,

12 and that determination was upheld on reconsideration by a State Agency Disability Hearing

13 Officer. (AR 160.) On July 29, 2016, an Administrative Law Judge (“ALJ”) issued an

14 unfavorable decision concluding that Plaintiff’s disability ended on May 1, 2014. (AR 160-

15 67.) On August 11, 2017, the Appeals Council dismissed Plaintiff’s request for review, upon

16 his request to withdraw it. (AR 198-200.)

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18 In the interim, on August 8, 2016, Plaintiff protectively filed an application for SSI (AR

19 15, 173, 185), the subject of this action. Plaintiff alleged disability beginning on October 1,

20 2001 because of “Auto-immune; [thrombocytopenia]; hepatosplenomegaly; [Spondylosis];

21 [Rheumatoid] arthritis; COPD; [Interstitial] lung fibrosis; Alpha-1 [antitrypsin]; Scoliosis; and

22 Cyanosis.” (AR 185-86; see also AR 173-74.)2 After the Commissioner denied Plaintiff’s

23 application initially (AR 172) and on reconsideration (AR 184), Plaintiff requested a hearing

24 (AR 217-19).

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2 Plaintiff was 21 years old on his protective application date (AR 23) and thus met the agency’s definition of a

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younger person. See 20 C.F.R. § 416.963(c).

1 At a hearing held on June 6, 2018, at which Plaintiff appeared with counsel, an ALJ

2 heard testimony from Plaintiff, Plaintiff’s mother, and a vocational expert. (AR 66-118.) At

3 a supplemental hearing held on January 30, 2019, at which Plaintiff appeared with counsel,

4 the ALJ heard testimony from a medical expert. (AR 33-65.) On February 21, 2019, the ALJ

5 issued an unfavorable decision denying Plaintiff’s application for SSI. (AR 15-25.) On May

6 23, 2019, the Appeals Council denied Plaintiff’s request for review. (AR 1-6.)

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8 SUMMARY OF ADMINISTRATIVE DECISION

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10 As an initial matter, the ALJ found that the presumption of continuing non-disability

11 arising from the prior ALJ’s decision had been rebutted because of updated opinion evidence.

12 (AR 15.) The ALJ then made the following findings under the five-step sequential evaluation

13 process. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful

14 activity since his application date of August 8, 2016. (AR 17.) At step two, the ALJ found

15 that Plaintiff had the following severe impairments: “spinal disorder, asthma, alpha 1

16 antitrypsin (A1AT) deficiency carrier, thrombocytopenia, nonalcoholic liver disease,

17 splenomegaly, hypothyroidism (20 C.F.R. § 416.920(c)).” (AR 18.) At step three, the ALJ

18 found that Plaintiff did not have an impairment or combination of impairments that met or

19 medically equaled the severity of any impairments listed in 20 C.F.R. Part 404, Subpart P,

20 Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926). (AR 18.) The ALJ then

21 determined that Plaintiff had the residual functional capacity (“RFC”) to perform “light work”

22 and was “further limited to no more than frequent postural activity, but no more than

23 occasional stooping” and “no more than occasional exposure to pulmonary irritants,

24 unprotected heights, or dangerous machinery.” (AR 19.) At step four, the ALJ found that

25 Plaintiff had no past relevant work. (AR 23.) At step five, the ALJ relied on the vocational

26 expert’s testimony to find that Plaintiff could perform other work in the national economy, in

27 the occupations of office helper, sales attendant, and “marker, retail trade.” (AR 24.)

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1 Accordingly, the ALJ concluded that Plaintiff was not disabled within the meaning of the

2 Social Security Act. (AR 25.)

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4 STANDARD OF REVIEW

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6 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to determine

7 whether it is free from legal error and supported by substantial evidence in the record as a

8 whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is ‘more than

9 a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind

10 might accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of Soc. Sec., 740

11 F.3d 519, 522-23 (9th Cir. 2014) (citations omitted). “Even when the evidence is susceptible

12 to more than one rational interpretation, we must uphold the ALJ’s findings if they are

13 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104,

14 1111 (9th Cir. 2012) (citation omitted).

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16 Although this Court cannot substitute its discretion for the Commissioner’s, the Court

17 nonetheless must review the record as a whole, “weighing both the evidence that supports and

18 the evidence that detracts from the Commissioner’s conclusion.” Lingenfelter v. Astrue, 504

19 F.3d 1028, 1035 (9th Cir. 2007) (citation omitted); Desrosiers v. Sec’y of Health & Human

20 Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citation omitted). “The ALJ is responsible for

21 determining credibility, resolving conflicts in medical testimony, and for resolving

22 ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citation omitted).

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24 The Court will uphold the Commissioner’s decision when the evidence is susceptible to

25 more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)

26 (citation omitted). However, the Court may review only the reasons stated by the ALJ in his

27 decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d

28 at 630 (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). The Court will not

1 reverse the Commissioner’s decision if it is based on harmless error, which exists if the error

2 is “‘inconsequential to the ultimate nondisability determination,’ or that, despite the legal error,

3 ‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. Colvin, 806 F.3d 487,

4 492 (9th Cir. 2015) (citations omitted).

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6 DISCUSSION

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8 The parties raise four issues: (1) whether the ALJ supported an adverse assessment of

9 Plaintiff’s subjective symptom testimony and the third party statement with substantial

10 evidence; (2) whether the ALJ committed harmful legal error in the assessment of the medical

11 evidence; (3) whether the ALJ erred by not applying pertinent Social Security Rulings in the

12 written decision; and (4) whether the ALJ properly developed the record. (Joint Stip. at 3.)

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14 I. The ALJ Did Not Reversibly Err In Assessing The Testimony Of Plaintiff And His

15 Mother (Issue One).

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17 In Issue One, Plaintiff contends that the ALJ did not properly evaluate Plaintiff’s

18 subjective symptom testimony and the lay witness testimony of Plaintiff’s mother. (Joint Stip.

19 at 3-7, 16-17.)

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21 A. Plaintiff’s Subjective Symptom Testimony.

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23 An ALJ must make two findings in assessing a claimant’s pain or symptom allegations.

24 Social Security Ruling (“SSR”) 16-3P, 2017 WL 5180304, at *3; Treichler v. Comm’r of Soc.

25 Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). “First, the ALJ must determine whether the

26 claimant has presented objective medical evidence of an underlying impairment which could

27 reasonably be expected to produce the pain or other symptoms alleged.” Treichler, 775 F.3d

28 at 1102 (citation omitted). “Second, if the claimant has produced that evidence, and the ALJ

1 has not determined that the claimant is malingering, the ALJ must provide specific, clear and

2 convincing reasons for rejecting the claimant’s testimony regarding the severity of the

3 claimant’s symptoms” and those reasons must be supported by substantial evidence in the

4 record. Id.; see also Marsh v. Colvin, 792 F.3d 1170, 1174 n.2 (9th Cir. 2015). “A finding

5 that a claimant’s testimony is not credible ‘must be sufficiently specific to allow a reviewing

6 court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds and

7 did not arbitrarily discredit a claimant’s testimony regarding pain.’” Brown-Hunter, 806 F.3d

8 487, 493 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)

9 (en banc)).

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11 Beginning on March 28, 2016, SSR 16-3P rescinded and superseded the

12 Commissioner’s prior rulings as to how the Commissioner will evaluate a claimant’s

13 statements regarding the intensity, persistence, and limiting effects of symptoms in disability

14 claims. See SSR 16-3P, 2017 WL 5180304, at *1. Because the ALJ’s decision in this case

15 was issued on February 21, 2019, it is governed by SSR 16-3P. See id. at *13 and n.27. In

16 pertinent part, SSR 16-3P eliminated the use of the term “credibility” and clarified that the

17 Commissioner’s subjective symptom evaluation “is not an examination of an individual’s

18 character.” SSR 16-3P, 2017 WL 5180304, at *2; see also Trevizo v. Berryhill, 871 F.3d 664,

19 678 n.5 (9th Cir. 2017). These changes are largely stylistic and are consistent in substance

20 with Ninth Circuit precedent that existed before the effective date of SSR16-3P. See Trevizo,

21 871 F.3d at 678 n.5.

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23 1. Background.

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25 Plaintiff testified about his conditions as follows. His A1AT deficiency interferes with

26 his liver and spleen. (AR 74.) He is tired “all day” and feels like he cannot do anything. (Id.)

27 He needs to lie down for two or three hours during the day. (AR 75.) He has a nodule in his

28 lung that makes it difficult to breathe. (Id.) He cannot walk very far, cannot climb more than

1 one flight of stairs, and cannot exercise. (AR 76.) He uses an inhaler every other day. (Id.)

2 He has lower back pain that makes it difficult to bend or lift more than 10 pounds. (Id.) He

3 does not sleep through the night. (AR 76-77.) He can walk for 5 or 10 minutes. (AR 77.) He

4 takes medication for a thyroid issue, but he still has fatigue. (AR 78-79.) He has Raynaud’s

5 phenomenon, which causes swelling in his fingers and feet. (AR 79.) He stays at home for

6 most of the day. (AR 80.) Once a week, he goes to the library. (Id.) He has an enlarged

7 spleen but takes no medication for it. (AR 80-81.) He could not perform a simple job that

8 involved sitting at a table because he cannot sit for one position for too long and because his

9 back hurts after 45 minutes. (AR 82.) He also would have problems with attendance because,

10 in the past, he missed a lot of school due to his issues. (Id.)

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12 2. Analysis.

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14 The ALJ initially found that Plaintiff’s medically determinable impairments could

15 reasonably be expected to cause the alleged symptoms. (AR 20.) However, the ALJ next

16 found that Plaintiff’s statements concerning the intensity, persistence, and limiting effects of

17 these symptoms were not entirely consistent with the medical evidence and other evidence in

18 the record. (Id.) As support, the ALJ stated three reasons. (AR 20-21, 22.) As discussed

19 below, the ALJ stated clear and convincing reasons based on substantial evidence.

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21 a. Partially consistent with the evidence of record.

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23 First, the ALJ found that Plaintiff’s allegations were “partially consistent with the

24 evidence of record.” (AR 20.) An ALJ may reject a claimant’s subjective symptom allegations

25 because they are inconsistent with the objective medical evidence, so long as it is not the sole

26 reason. See, e.g., Burch, 400 F.3d at 681 (“Although lack of medical evidence cannot form

27 the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his

28 credibility analysis.”); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While

1 subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated

2 by objective medical evidence, the medical evidence is still a relevant factor in determining

3 the severity of the claimant’s pain and its disabling effects.”).

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5 The ALJ cited the following objective medical evidence. Plaintiff had a normal gait, “5

6 out of 5” strength in his extremities, and the ability to exercise full range of motion of the

7 lumber spine. (AR 20-21 [citing AR 803]). His leg pain likely was due to deconditioning

8 rather than a medically determinable impairment. (AR 21 [citing AR 962].) Finally, his

9 pulmonary function tests “generally reveal either normal functioning” or “very minimal”

10 change in diffusion capacity. (AR 21 [citing AR 661, 947-48].)

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12 Plaintiff alleges that the objective medical evidence showed he had “a severely enlarged

13 spleen” and “a significant cardiac abnormality.” (Joint Stip. at 6.) As to the enlarged spleen,

14 the ALJ properly accounted for that condition by finding that Plaintiff’s splenomegaly was a

15 medically determinable impairment (AR 18), but then pointing to objective medical findings

16 showing that his strength and motion were normal or improved with physical therapy (AR 21).

17 As to the significant cardiac abnormality, the ALJ properly accounted for that condition by

18 pointing to evidence showing that Plaintiff’s transthoracic echocardiogram was normal. (AR

19 23 (citing AR 951, 953-56).) Thus, the ALJ properly accounted for the objective medical

20 evidence in stating a clear and convincing reason based on substantial evidence to discount

21 Plaintiff’s subjective allegations.

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23 b. Responsiveness to physical therapy and treatment.

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25 Second, the ALJ found that Plaintiff’s breathing condition was responsive to physical

26 therapy and treatment. (AR 21.) An ALJ may find that a claimant’s subjective symptom

27 allegations are undermined by evidence of treatment that has been effective. See Celaya v.

28 Halter, 332 F.3d 1177, 1181 (9th Cir. 2003) (finding that the ALJ “reasonably noted that the

1 underlying complaints upon which [the claimant’s] reports of pain were predicated had come

2 under control”); see also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir.

3 2006) (“Impairments that can be controlled effectively with medication are not disabling for

4 the purpose of determining eligibility for SSI benefits.”) (citing Odle v. Heckler, 707 F.2d 439,

5 440 (9th Cir. 1983) (affirming a denial of benefits and noting that the claimant’s impairments

6 were responsive to medication)); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008)

7 (holding that an ALJ reasonably pointed to the claimant’s admission that his diabetes was

8 controlled by medication).

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10 The ALJ cited evidence that Plaintiff “demonstrated the ability to improve his exercise

11 capacity” after two months of physical therapy (AR 671), and that his airflow obstruction was

12 reversible with the use of a bronchodilator (AR 884). (AR 21.) This evidence permitted a

13 reasonable inference that, with appropriate treatment, Plaintiff’s breathing condition was not

14 as limiting as he alleged. Thus, this was a clear and convincing reason based on substantial

15 evidence to discount Plaintiff’s subjective allegations.

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17 c. Conservative treatment.

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19 Finally, the ALJ found that Plaintiff’s treatment history was not “consistent with the

20 degree of limitation alleged” (AR 21) and “has been highly conservative” (AR 22).

21 “[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony

22 regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007)

23 (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1985)); see also Tommasetti, 533 F.3d

24 at 1040 (response to conservative treatment may undermine a claimant’s reports regarding the

25 disabling nature of his symptoms).

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27 Here, the ALJ found that Plaintiff’s allegations were inconsistent with evidence that he

28 is “only using albuterol, a short-acting bronchodilator, on an as-needed basis” (AR 885) or

1 “sometimes not at all” (AR 949); “has not used a long-acting bronchodilator in over 12

2 months” (AR 885); and has never “been hospitalized for respiratory reasons” (AR 752). (AR

3 21.) Later in her decision, the ALJ similarly found Plaintiff’s allegations were inconsistent

4 with evidence of “highly conservative” treatment, based on evidence showing that he used

5 levothyroxine for hypothyroidism (AR 469), used an albuterol inhaler as needed for shortness

6 of breath (AR 885), and did not require augmentation therapy for his A1AT deficiency (AR

7 716, 730, 885). (AR 22.)

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9 Evidence that Plaintiff used an inhaler only as needed, rarely, or sometimes not at all

10 permitted the ALJ to draw a reasonable inference that Plaintiff’s lung impairment was not as

11 serious as he alleged. See, e.g., Clark v. Astrue, 2012 WL 2320783, at *3 (C.D. Cal. June 19,

12 2012) (conservative treatment was a permissible basis to reject a claimant’s complaints

13 relating to breathing difficulties where the claimant used inhalers on an as needed basis and

14 was not hospitalized); Martinez v. Astrue, 2013 WL 663570, at *3 (C.D. Cal. Feb. 22, 2013)

15 (same where the claimant used an inhaler every two weeks); Rolston v. Colvin, 2015 WL

16 685162, at *12 (D. Ariz. Feb. 18, 2015) (same where the claimant’s treatment typically

17 resulted in a prescription of inhalers and recommendations to stay hydrated and quit smoking).

18 Moreover, evidence that Plaintiff did not need augmentation therapy permitted the ALJ to

19 draw a reasonable inference that Plaintiff’s A1AT deficiency was not as serious as he alleged.

20 Thus, this was a clear and convincing reason based on substantial evidence to discount

21 Plaintiff’s subjective allegations.

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23 B. Lay Witness Testimony of Plaintiff’s Mother.

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25 “In determining whether a claimant is disabled, an ALJ must consider lay witness

26 testimony concerning a claimant’s ability to work.” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th

27 Cir. 2009) (quoting Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006))

28 (internal quotation marks omitted). “Descriptions by friends and family members in a position

1 to observe a claimant’s symptoms and daily activities have routinely been treated as competent

2 evidence.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Bilby v. Schweiker,

3 762 F.2d 716, 719 n.3 (9th Cir. 1985)). An ALJ is “required to consider and comment upon

4 competent lay testimony, as it concerned how [a claimant’s] impairments impact his ability to

5 work.” Bruce, 557 F.3d at 1115. An ALJ must “provide specific, germane reasons for

6 discounting lay witness testimony.” Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228,

7 1234 (9th Cir. 2011).

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9 1. Background.

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11 Plaintiff’s mother, P.S.S., testified at the first administrative hearing about Plaintiff’s

12 condition. (AR 84.) In pertinent part, P.S.S. testified that Plaintiff spends most of the day in

13 bed (AR 85), that he has a heart problem called pulmonary hypertension (AR 87), that his liver

14 problem has become progressively worse and may require a liver transplant (id.), and that he

15 may only live to age 30 (AR 103). The ALJ did not credit this testimony:

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17 [P.S.S.] made a number of statements that are wholly unsupported by the record.

18 She said that [Plaintiff] may eventually need a liver transplant and will be lucky

19 to live to 30 (Hearing Audio), whereas [Plaintiff’s] doctors have stated that

20 [Plaintiff] does not require even augmentation therapy, much less a liver

21 transplant [AR 883-85]. She said that [Plaintiff’s] fatigue and breathing problems

22 are caused by pulmonary hypertension, which is contradicted by the results of a

23 transthoracic echocardiogram [AR 951, 953-56]. As noted by Dr. Menz,

24 [Plaintiff’s] gastroenterologist, [P.S.S.’s] understanding of [Plaintiff’s] liver

25 disease is less than ideal [AR 818]. Because [P.S.S.’s] statements are not

26 supported by medical evidence, I give them minimal weight.

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28 (AR 23.)

1 2. Analysis.

2

3 The ALJ assessment stated two specific, germane reasons for giving minimal weight to

4 P.S.S.’s testimony. First, the ALJ identified inconsistencies between P.S.S.’s testimony and

5 the medical evidence. (AR 23 (citing AR 883-85, 951, 953-56).) “‘Inconsistency with medical

6 evidence’ is one reason that [the Ninth Circuit] has concluded is germane, Bayliss v. Barnhart,

7 427 F.3d 1211, 1218 (9th Cir. 2005), although [the Ninth Circuit] has also concluded that ‘a

8 lack of support from the overall medical evidence is . . . not a proper basis for disregarding

9 [lay] observations,’ Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017).” Burkett v. Saul,

10 806 F. App’x 509, 512-13 (9th Cir. 2020) (internal quotation marks omitted). The ALJ’s

11 reasoning reflected a permissible analysis under Bayliss rather than an impermissible analysis

12 under Diedrich. Despite the ALJ’s use of the word “unsupported,” the full context of the

13 ALJ’s reasoning reflects that the ALJ was relying on inconsistencies, rather than simply a lack

14 of support, to discount P.S.S.’s testimony. By citing medical evidence of Plaintiff’s liver and

15 heart conditions (AR 883-85, 951, 953-56) and concluding that such evidence “contradicted”

16 P.S.S.’s testimony (AR 23), the ALJ properly stated a specific, germane reason to give minimal

17 weight to the lay witness testimony.

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19 Second, the ALJ noted that one of Plaintiff’s physicians had commented that P.S.S.’s

20 understanding of Plaintiff’s liver disease was less than ideal. (AR 23 (citing AR 818).) An

21 ALJ may reject a lay witness’s testimony when there is more reliable evidence from medical

22 professionals. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (holding that an ALJ

23 properly rejected the testimony of family members about a claimant’s fatigue when it was

24 inconsistent with a physician’s reports that were more persuasive). Thus, this reason also was

25 specific and germane to P.S.S.’s testimony.

26

27 Plaintiff contends that, even if P.S.S. was unqualified to diagnose Plaintiff’s heart and

28 liver conditions (because P.S.S. is not a health care professional), P.S.S. still was a competent

1 lay witness to Plaintiff’s symptoms. (Joint Stip. at 16.) A lay witness, while not competent to

2 make medical diagnoses, is competent to describe a claimant’s symptoms. See Nguyen v.

3 Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). Here, however, the ALJ did not purport to

4 dismiss P.S.S.’s testimony as incompetent because of her lack of qualifications. And contrary

5 to Plaintiff’s contention, the ALJ’s two reasons went not only to P.S.S.’s testimony about

6 Plaintiff’s diagnoses, but also to P.S.S.’s testimony about Plaintiff’s symptoms. The ALJ

7 reasonably found that P.S.S.’s testimony about Plaintiff’s symptoms (e.g., that he would need

8 a liver transplant and may not live beyond age 30) was contradicted by medical evidence

9 showing that Plaintiff’s heart and liver conditions were not as serious as P.S.S. alleged and

10 that P.S.S’s understanding was less than ideal. (AR 23.) Thus, the ALJ’s reasons were

11 germane to P.S.S.’s lay observations of Plaintiff’s symptoms. See Vincent v. Heckler, 739

12 F.2d 1393, 1395 (9th Cir. 1984) (per curiam) (holding that lay witnesses who testified that the

13 claimant was impaired from a mental disorder and stroke were properly discounted without

14 discussion because it conflicted with the available medical evidence). Thus, reversal is not

15 warranted for this issue.

16

17 II. The ALJ Did Not Reversibly Err In Assessing The Medical Opinions (Issue Two).

18

19 In Issue Two, Plaintiff contends that the ALJ did not properly assess the opinions of two

20 treating physicians, Dr. Hiltner and Dr. Daucette. (Joint Stip. at 17-20, 25-26.)

21

22 A. Legal Standard.

23

24 There are three categories of physicians: treating physicians, examining physicians, and

25 nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Treating

26 physician opinions should be given more weight than examining or nonexamining physician

27 opinions. Orn, 495 F.3d at 632. This is because a treating physician “is employed to cure and

28 has a greater opportunity to know and observe the patient as an individual.” Magallanes v.

1 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). If the treating physician’s opinion

2 is not contradicted by another doctor, it may be rejected only if the ALJ provides “clear and

3 convincing reasons supported by substantial evidence in the record.” Orn, 495 F.3d at 632. If

4 the treating physician’s opinion is contradicted by another doctor, it may be rejected only by

5 “specific and legitimate reasons supported by substantial evidence in the record.” Id. Here,

6 the treating physicians’ opinions were contradicted by the opinions of an examining physician

7 (AR 456-61), non-examining state agency physicians (AR 179-81, 193-95), and a non-

8 examining medical expert (AR 55-57). Thus, the ALJ could not reject the treating physicians’

9 opinions unless she stated specific and legitimate reasons supported by substantial evidence in

10 the record.

11

12 B. Dr. Hiltner.

13

14 Dr. Hiltner, a general practice physician, was Plaintiff’s treating physician from October

15 2002 (AR 590) until April 2017 (AR 907). In January 2015, Dr. Hiltner completed a

16 questionnaire about Plaintiff’s abilities. (AR 590-93.) In pertinent part, Dr. Hiltner wrote that,

17 because of A1AT deficiency (AR 590), Plaintiff was capable of less than sedentary work (AR

18 591), would need unscheduled breaks for thirty minutes every two hours (AR 592) and would

19 be absent from work more than four days per month (AR 593). The ALJ gave “little weight”

20 to Dr. Hiltner’s opinion:

21

22 [Dr. Hiltner’s] opinion is inconsistent with the opinions of multiple pulmonary

23 specialists: treating provider Dr. Bajwa, who stated that [Plaintiff’s] respiratory

24 impairments are either well controlled or clinically asymptomatic [AR 850, 883-

25 84]; the pulmonologists at Cedars-Sinai Medical Center, who concluded that

26 [Plaintiff’s] respiratory symptoms are not likely to be caused by his A1AT

27 deficiency [AR 952]; and impartial medical expert Dr. Maples, who testified that

28 the evidence was inconclusive as to the cause of [Plaintiff’s] respiratory

1 symptoms (Supplemental Hearing Audio). Because Dr. Hiltner’s opinion is

2 inconsistent with the opinions of at least three experts in pulmonary medicine, I

3 give it little weight.

4

5 (AR 23.)

6

7 An ALJ may reject a treating physician’s opinion because it is “unsupported by the

8 record as whole or by objective medical findings.” See Batson v. Comm’r of Soc. Sec. Admin.,

9 359 F.3d 1190, 1195 (9th Cir. 2004) (internal citations omitted); see also Tommasetti, 533

10 F.3d at 1041 (ALJ reasonably found that a treating physician’s questionnaire responses “were

11 inconsistent with the medical records”). Here, it was reasonable for the ALJ to conclude that

12 Dr. Hiltner’s opinion was inconsistent with the opinions of pulmonary specialists who found

13 that Plaintiff’s A1AT deficiency was not the likely source of Plaintiff’s alleged symptoms.

14 See Magallanes, 881 F.2d at 752 (ALJ gave specific and legitimate reasons to reject a treating

15 physician’s opinion that was inconsistent with the objective findings of several orthopedic

16 specialists and a neurosurgeon); Rebensdorf v. Berryhill, 773 F. App’x 874, 877 (9th Cir. 2019)

17 (ALJ gave specific and legitimate reasons to reject a treating family practitioner’s opinion that

18 was inconsistent with the opinion of an orthopedic specialist and with objective medical

19 evidence). Indeed, the specialists determined that Plaintiff’s A1AT deficiency was of a type

20 which clinically does not cause pulmonary or liver disease. (AR 818, 948, 952.)

21

22 Plaintiff contends that the ALJ should have discussed Dr. Hiltner’s opinion in light of

23 other factors, such as his extensive history of treating Plaintiff. (Joint Stip. at 18-19.) But the

24 ALJ did acknowledge Dr. Hiltner’s status as Plaintiff’s treating physician. (AR 23.)

25 Moreover, the ALJ was not required to afford special weight to the length of Dr. Hiltner’s

26 treatment history in light of the ALJ’s actual reasoning for rejecting Dr. Hiltner’s opinion.

27 Given that the ALJ relied on objective medical evidence from pulmonary specialists who

28 found that Plaintiff’s A1AT deficiency, the entire basis of Dr. Hiltner’s opinion, was not the

1 likely source of Plaintiff’s symptoms, it made no difference that Dr. Hiltner had a lengthy

2 treatment history. In sum, the ALJ stated a specific and legitimate reason based on substantial

3 evidence to give little weight to Dr. Hiltner’s opinion.

4

5 C. Dr. Daucette.

6

7 Dr. Daucette also was one of Plaintiff’s treating physicians. (AR 907.) In July 2017,

8 Dr. Daucette completed a questionnaire on behalf of Plaintiff for a local housing program.

9 (AR 411-13.) Dr. Daucette wrote that Plaintiff was an “individual with a disability” (AR 411)

10 who needed housing without carpeting because of severe breathing problems (AR 412, 413).

11

12 The ALJ gave “no weight” to Dr. Daucette’s “form opinion” because “[t]he criteria for

13 disability under Social Security laws and regulations are different from those of a local housing

14 authority.” (AR 23.) An ALJ must consider all medical opinions, even opinions that use

15 different disability criteria. See Desrosiers, 846 F.2d at 576. However, the ALJ’s assessment

16 here was not erroneous. Although an ALJ must consider all medical opinions, an ALJ is not

17 required to give any special consideration to an opinion that merely concludes a claimant is

18 disabled, without describing functional limitations. See McLeod v. Astrue, 640 F.3d 881, 884-

19 85 (9th Cir. 2011) (treating physician’s statement that a claimant was disabled, without

20 discussion of actual functioning, was legal question on an issue reserved to the Commissioner).

21 Dr. Daucette’s form opinion merely concluded that Plaintiff was disabled (AR 411), without

22 describing any limitations other than an unquantified breathing problem (AR 412-13). The

23 ALJ was not required to accept that conclusion. See Thomas v. Barnhart, 278 F.3d 947 (9th

24 Cir. 2002) (“The ALJ need not accept the opinion of any physician, including a treating

25 physician, if that opinion is brief, conclusory, and inadequately supported by clinical

26 findings.”).

27 //

28 //

1 Even assuming that the ALJ’s assessment of Dr. Daucette’s form opinion was erroneous,

2 the error was harmless. The ALJ gave practical effect to the only limitation Dr. Daucette

3 identified, Plaintiff’s need to avoid carpets because of a breathing problem, by limiting

4 Plaintiff to a residual functional capacity with no more than occasional exposure to pulmonary

5 irritants. (AR 19.) Thus, the ALJ’s assessment was not reversible error. See Turner v. Comm’r

6 of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010) (ALJ was not required to provide reasons for

7 rejecting a physician’s report when the residual functional capacity incorporated the

8 physician’s observations); Grammer v. Berryhill, 706 F. App’x 383, 384 (9th Cir. 2017)

9 (“[A]ny error is harmless because the Residual Functional Capacity adequately accounts for

10 all the limitations contained in [the physician’s] opinion.”) (citing Stubbs-Danielson v. Astrue,

11 539 F.3d 1169, 1173-74 (9th Cir. 2008) (concluding that no reasoning is required to reject a

12 physician’s opinion when the RFC adequately accounts for all limitations)).

13

14 III. The ALJ Did Not Reversibly Err By Failing To Consider Social Security Rulings

15 (Issue Three).

16

17 In Issue Three, Plaintiff claims that the ALJ erred by failing to consider three Social

18 Security Rulings (“SSRs”). (Joint Stip. at 26-28, 30.)

19

20 A. Legal Standard.

21

22 “‘SSRs do not have the force of law’ but ‘represent the Commissioner’s interpretation

23 of the agency’s regulations.’” Ukolov v. Barnhart, 420 F.3d 1002, 1005 n.2 (9th Cir. 2005)

24 (quoting Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001)). SSRs are binding

25 on adjudicators, including ALJs. See Orn, 495 F.3d at 636 (citing 67 Fed. Reg. 57859-02,

26 57860 (“Although Social Security Rulings do not have the same force and effect as the statute

27 or regulations, they are binding on all components of the Social Security Administration, . . .

28 and are to be relied upon as precedents in adjudicating cases.”).) An ALJ’s departure from

1 established procedures set out in an SSR is reversible legal error. See Bray v. Comm’r of Soc.

2 Security Admin., 554 F.3d 1219, 1226 (9th Cir. 2009).

3

4 B. SSR 16-4P.

5

6 Plaintiff contends that the ALJ did not consider SSR 16-4P, 2016 WL 1575064 (“Using

7 Genetic Test Results To Evaluate Disability”). (Joint Stip. at 26.) In pertinent part, the ruling

8 states that an adjudicator “will consider all medical evidence, including genetic test results,

9 when evaluating a claim for disability benefits.” SSR 16-4P, 2016 WL 1575064, at *2.

10 According to Plaintiff, SSR 16-4P was relevant here because of “objective medical evidence

11 underlying [Plaintiff’s] subjective symptoms.” (Joint Stip. at 26.)

12

13 The ALJ did not fail to comply with the ruling in assessing Plaintiff’s genetic disorder.

14 The ALJ accepted Plaintiff’s objective medical evidence of his genetic disorder (i.e., his A1AT

15 deficiency) as proof of a medically determinable impairment that could reasonably be expected

16 to cause his alleged subjective symptoms. (AR 22.) Subsequently, however, the ALJ found

17 that the “intensity, persistence, and limiting effects of his symptoms” from that genetic

18 disorder and other conditions were not as significant as Plaintiff alleged. (Id.) In making that

19 finding, the ALJ relied on clear and convincing reasons supported by substantial evidence

20 from the record as a whole, as discussed above. The ALJ’s analysis was consistent with SSR

21 16-4P’s established procedure. See SSR 16-4P, 2016 WL 1575064, at *8 (commenting that

22 “[g]enetic tests generally do not provide information about the degree of functional limitation”

23 so adjudicators will draw from the record as a whole to make that determination).

24

25 C. SSR 14-3P.

26

27 Plaintiff contends that the ALJ did not consider SSR 14-3P, 2014 WL 2472009

28 (“Evaluating Endocrine Disorders Other Than Diabetes Mellitus”). (Joint Stip. at 26-27.) The

1 ruling gives information and guidance to adjudicators who evaluate endocrine disorders that

2 include, as relevant here, hypothyroidism. See SSR 14-3P, 2014 WL 2472009, at *3. The

3 ruling specifically states that “[s]ome of the symptoms and signs of hypothyroidism include

4 weakness or fatigue, dry or coarse skin, slow or depressed speech, and adverse mental

5 changes.” Id. According to Plaintiff, the ALJ failed to consider that Plaintiff’s hypothyroidism

6 was a source of his fatigue and mental health issues. (Joint Stip. at 27.)

7

8 The ALJ properly considered Plaintiff’s hypothyroidism. In the first place, the ALJ

9 found that hypothyroidism was one of Plaintiff’s medically determinable impairments (AR

10 18) and that such impairments could reasonably be expected to cause Plaintiff’s alleged

11 symptoms (AR 20). But the ALJ then discounted Plaintiff’s subjective allegations based on

12 those impairments for clear and convincing reasons based on substantial evidence, as discussed

13 above. This was permitted by SSR 14-3P, which did not require that, simply because Plaintiff

14 had hypothyroidism, the ALJ was required to credit Plaintiff’s subjective allegations of fatigue

15 and mental limitations.

16

17 Rather, the ALJ permissibly found that Plaintiff’s pain and fatigue were not irreversible,

18 based on evidence of Plaintiff’s improvements during physical therapy. (AR 21 (citing AR

19 671).) Moreover, the ALJ noted that the evidence of Plaintiff’s limitations from

20 hypothyroidism was limited: Plaintiff’s physicians increased his dosage of levothyroxine, but

21 they otherwise “have not remarked about the prognosis of [Plaintiff’s] hypothyroidism.” (AR

22 20 (citing AR 469, 928).) Given this evidence, the ALJ did not fail to comply with SSR 14-

23 3P by declining to credit Plaintiff’s subjective allegations about his hypothyroidism.

24

25 D. SSR 11-2P.

26

27 Finally, Plaintiff contends that the ALJ did not consider SSR 11-2P, 2011 WL 4055665

28 (“Documenting and Evaluating Disability In Young Adults”). (Joint Stip. at 27.) In pertinent

1 part, the ruling states that, for disability determinations for claimants between the ages of 18

2 to approximately 25, an adjudicator will account for evidence from “other sources” (i.e., lay

3 witnesses) and evidence of the claimant’s educational background. See SSR 11-2P, 2011 WL

4 4055665, at *4, *6-*7. According to Plaintiff, the “other source” testimony and evidence of

5 his difficulty with school attendance were not properly considered, as the ruling required.

6 (Joint Stip. at 26-27.)

7

8 The ALJ properly considered the evidence relevant to Plaintiff’s young age. First, the

9 ALJ properly considered the “other source” testimony (i.e., the testimony of Plaintiff’s

10 mother), by stating specific, germane reasons to give it minimal weight, as discussed above.

11 Second, although Plaintiff testified that attendance was a problem for him, and cited the fact

12 that he “missed a lot of school” due to his health issues (AR 82), the ALJ properly discounted

13 his testimony for clear and convincing reasons based on substantial evidence, as discussed

14 above. Moreover, nothing in the record suggested that Plaintiff’s school attendance problems

15 were the type of serious educational difficulties contemplated by the ruling. See SSR 11-2P,

16 2011 WL 4055665, at *6-*7 (discussing evidence of educational background in the context of

17 special education and Individualized Education Programs). Thus, the ALJ did not fail to

18 comply with SSR 11-2P.

19

20 IV. The ALJ Did Not Reversibly Err By Failing To Develop The Record (Issue Four).

21

22 In Issue Four, Plaintiff claims that the ALJ failed to develop the record by failing to

23 obtain the file from Plaintiff’s prior award of disability benefits. (Joint Stip. at 30-31, 33.)

24

25 A. Legal Standard.

26

27 It generally is the claimant’s responsibility to furnish evidence to support a claim of

28 disability. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999); 20 C.F.R. § 416.912(a)

1 (2015). But “the ALJ shares the burden at each step” of the Commissioner’s five-step

2 evaluation, which includes an “affirmative duty” to help the claimant develop the record. See

3 Tackett v. Apfel, 180 F.3d 1094, 1098 n.3 (9th Cir. 1999). An ALJ has a special duty to fully

4 and fairly develop the record to assure that the claimant’s interests are considered, even when

5 the claimant is represented by counsel. See Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.

6 1983). “Ambiguous evidence, or the ALJ’s own finding that the record is inadequate to allow

7 for proper evaluation of the evidence, triggers the ALJ’s duty to conduct an appropriate

8 inquiry.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citation and internal

9 quotation marks omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1069 (9th Cir. 2006)

10 (stating that an ALJ has a duty to fill a “perceived gap” in the record). “A specific finding of

11 ambiguity or inadequacy of the record [by the ALJ] is not necessary to trigger this duty to

12 inquire, where the record establishes ambiguity or inadequacy.” McLeod, 640 F.3d at 885.

13

14 B. Analysis.

15

16 As noted, Plaintiff was awarded benefits in 2003 (when he was seven years old) based

17 on the medically determinable impairment of splenomegaly. (AR 160, 162.) On July 29,

18 2016, a prior ALJ issued a decision finding that Plaintiff was no longer disabled as of May 1,

19 2014. (AR 160-67.) On August 8, 2016, Plaintiff protectively filed the current SSI

20 application. (AR 15, 173, 185.) Plaintiff contends that the ALJ for the current application

21 erred by failing to obtain Plaintiff’s prior favorable decision from 2003 and the related medical

22 records, which would have produced critical information, particularly about his genetic

23 disorder. (Joint Stip. at 31.)

24

25 Plaintiff relies on two publications. First, Plaintiff cites the Hearings, Appeals, and

26 Litigation Law Manual (“HALLEX”) I-2-6-58(A), which states in pertinent part that an ALJ

27 “will generally admit into the record any evidence that he or she determines is material to the

28 issues in the case.” (Joint Stip. at 31.) Second, Plaintiff cites Program Operations Manual

1 System (“POMS”) DI 81020.030, which states in pertinent part that “[e]vidence from a

2 previously processed case may have adjudicative significance to the evaluation and

3 determination of the current case.” These publications, however, are not binding on ALJs and

4 are not legally enforceable by federal courts. See Lockwood v. Comm’r Soc. Sec. Admin., 616

5 F.3d 1068, 1073 (9th Cir. 2010) (“Like HALLEX, POMS constitutes an agency interpretation

6 that does not impose judicially enforceable duties on either this court or the ALJ.”) (citing

7 Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th Cir. 2003) (“We have previously considered both

8 publications and concluded that neither imposes judicially enforceable duties.”)).

9

10 Moreover, the ALJ did not err in the broader sense of her duty to develop the record.

11 Under the governing regulation, the ALJ was required to develop Plaintiff’s medical history

12 only for the twelve months preceding August 2016, the month in which Plaintiff protectively

13 filed the current application, “unless there [was] a reason to believe that development of an

14 earlier period [was] necessary.” See 20 C.F.R. § 416.912(d) (2015). The ALJ complied with

15 the regulation by developing the current record with evidence dating back to January 2015.

16 (AR 706.) The current record did not suggest a reason to believe that development of an earlier

17 period was necessary. In the first place, any connection between the current record and the

18 prior case file was tenuous because the Commissioner determined in the interim that Plaintiff

19 was no longer disabled as of May 1, 2014 (AR 160-67), and that determination was final.

20 Moreover, Plaintiff’s counsel could have requested the issuance of a subpoena for Plaintiff’s

21 prior case file, see 20 C.F.R. § 416.1450(d)(2) (2013), but did not do so. Finally, Plaintiff’s

22 primary reason for why the prior case file was necessary, his genetic disorder (Joint Stip. at

23 31), was sufficiently developed and explained in the current record, which shows that a genetic

24 disorder was not the likely cause of his symptoms (AR 948, 952).

25

26 For these reasons, the ALJ did not err by failing to obtain, on her own motion, Plaintiff’s

27 prior case file relating to his prior disability award. See Wagner v. Colvin, 2015 WL 2089402,

28 at *2-*3 (W.D. Wash. May 5, 2015) (holding that an ALJ had no duty to develop the record

1 || with evidence supporting a claimant’s prior award of disability benefits, for similar reasons);

2 || Castelblanco v. Colvin, 2014 WL 3964950, at *5-*7 (N.D. Cal. Aug. 13, 2014) (same); Aker

3 || v. Astrue, 2012 WL 1605103, at *4 (C.D. Cal. May 8, 2012) (same); see also DeChirico v.

4 || Callahan, 134 F.3d 1177, 1184 (2d Cir. 1998) (“But because [the claimant] was represented

5 || by counsel, because the fact of his impairment was not in dispute, and because counsel offered

6 || no other reasons that the ten-year old file might be relevant, we cannot say that the ALJ abused

7 || his discretion in failing to subpoena it on his own initiative.”’) (emphasis in original).

8

9 CONCLUSION

10

11 For the reasons stated above, the Court finds that the Commissioner’s decision is

12 || supported by substantial evidence and free from material legal error. Neither reversal of the

13 || ALJ’s decision nor remand is warranted.

14

15 Accordingly, IT IS ORDERED that Judgment shall be entered affirming the decision of

16 || the Commissioner of the Social Security Administration.

17

18 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this

19 || Memorandum Opinion and Order and the Judgment on counsel for Plaintiff and for Defendant.

20

21 LET JUDGMENT BE ENTERED ACCORDINGLY.

22

23 || DATE: June 25, 2020

24 KS on L- Ansan

25

26 KAREN L. STEVENSON

4 UNITED STATES MAGISTRATE JUDGE

28

23