Phillips v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JASON P.!

Plaintiff, Civ, No, 2:20-cv-00688-CL

v. OPINION AND ORDER

COMMISSIONER OF SOCIAL SECURITY

ADMINISTRATION,

Defendant.

MARK D. CLARKE, Magistrate Judge.

Plaintiff Jason P. (“Plaintiff?) seeks judicial review of the final decision of the

Commissioner of the Social Security Administration (“Commissioner”) denying his applications

for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”).

Full consent to magistrate jurisdiction was entered on February 27, 2023 (Dkt. #26). For the

reasons provided below, the Commissioner’s decision is AFFIRMED.

BACKGROUND

Plaintiff is a 54-year-old man who alleges he is unable to work due to physical

impairments. On April 4, 2017, Plaintiff protectively filed an application for disability insurance

benefits alleging disability beginning March 27, 2013, Tr. 152. The claim was initially denied on

May 1, 2017, and again upon reconsideration on August 23, 2017. Tr. 92-100, A hearing was

held on January 23, 2019, before Administrative Law Judge Stephen Marchioro. Tr. 38. At the

‘In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name

of the non-governmental party or parties in this case.

1 - Opinion and Order

hearing, through counsel, Plaintiff amended his alleged onset date to March 23, 2018. Tr. 45. On

March 4, 2019, the ALJ issued an unfavorable decision, finding Plaintiff was not disabled. Tr.

32. On March 20, 2020, the Appeals Council denied review, making the ALJ’s decision the final

agency decision. Tr. 1. This action followed.

DISABILITY ANALYSIS

A claimant ts disabled if he or she is unable to “engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which . . . has lasted or

can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.

§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for

determining whether an applicant is disabled within the meaning of the Social Security Act.”

Keyser v. Comm’r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially

dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks

the following series of questions:

1. Is the claimant performing “substantial gainful activity’? 20 CFR.

8§ 404,1520(a)(4)G); 416.920(a)(4)G). This activity is work involving

significant mental or physical duties done or intended to be done for pay or

profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such

work, she is not disabled within the meaning of the Act. 20 C.F.R.

§§ 404.1520(a)(4)(D; 416.920(a)(4)(). If the claimant is not performing

substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant’s impairment “severe” under the Commissioner’s

regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(i1). Unless

expected to result in death, an impairment is “severe” if it significantly

limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or

must be expected to last for a continuous period of at least 12 months. 20

C.F.R, §§ 404.1509; 416.909. If the claimant does not have a severe

impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)\(4)(i);

416,.920(a)(4)Gi). If the claimant has a severe impairment, the analysis

proceeds to step three.

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3. Does the claimant’s severe impairment “meet or equal” one or more of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? Ifso, then

the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i);

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of

the listed impairments, the analysis proceeds to the “residual functional

capacity” (“RFC”) assessment.

a. The ALJ must evaluate medical and other relevant evidence to assess

and determine the claimant’s RFC. This is an assessment of work-

related activities that the claimant may still perform on a regular and

continuing basis, despite any limitations imposed by his or her

impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e);

416,945(b)-(c). After the ALJ determines the claimant’s RFC, the

analysis proceeds to step four.

4, Can the claimant perform his or her “past relevant work” with this RFC

assessment? If so, then the claimant is not disabled. 20 C.F.R.

§§ 404,1520(a)(4) (iv); 416.920(a)(4)(iv). If the claimant cannot perform his

or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience,

is the claimant able to make an adjustment to other work that exists in

significant numbers in the national economy? If so, then the claimant is not

disabled. 20 C.F.R. §§ 404,1520(a)(4)(v); 416.920(a}(4)(v); 404.1560(c);

416.960(c). If the claimant cannot perform such work, he or she is disabled.

See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).

The claimant bears the burden of preof at steps one through four. /d@. at 954. The

Commissioner bears the burden of proof at step five. /d. at 953-54. At step five, the

Commissioner must show that the claimant can perform other work that exists in significant

numbers in the national economy, “taking into consideration the claimant’s residual functional

capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.

1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work

which exists in the national economy”). If the Commissioner fails to meet this burden, the

claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(¥); 416.920(a)(4){v). Lf, however, the

3 - Opinion and Order

Commissioner proves that the claimant is able to perform other work existing in significant

numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55;

Tackett, 180 F.3d at 1099,

THE ALJ’S FINDINGS

Applying the above analysis, the ALJ made the following findings:

1. Plaintiffhas not engaged in substantial gainful activity since March 13, 2018, the

application date. Tr. 23.

2. Plaintiff has the following severe impairments: detached retina and total blindness in

the right eye; migraine headaches; and pseudoseizures. Tr. 23.

3. Plaintiff does not have an impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments in 20 CFR Part 404,

Subpart P, Appendix 1. Tr. 24.

4. Plaintiff □□□ the residual functional capacity to perform a full range of work at all

exertional levels, but with the following nonexertional limitations: he can never climb

ladders, ropes, and scaffolds; he can occasionally balance; he is limited to a work

environment with moderate noise levels as defined in the Selected Characteristics of

Occupational Titles (SCO); he can occasionally be exposed to irritants, such as

fumes, odors, dusts, and gases; he must avoid all use of unguarded moving machinery

parts; he must avoid all exposure to unprotected heights, he must avoid all exposure

to flashing or strobe lights; and since he has no vision in the right eye, he is limited to

work that can be performed with monocular vision. Tr. 25.

5. Plaintiff is capable of performing past relevant work as a training representative and a

microcomputer support specialist. Tr. 29-30.

6. Plaintiff was born on December 26, 1968, and was 50 years old, which is defined as

an individual “closely approaching advanced age” on the date last insured. Tr. 31.

7. Plaintiff has at least a high school education and is able to communicate in English.

Tr. 30.

8. Transferability of job skills is not material to the determination of disability because

using the Medical-Vocational Rules as a framework supports a finding that the

claimant is "not disabled," whether or not the claimant has transferable job skills. Tr.

31,

4 - Opinion and Order

9. Considering Plaintiff's age, education, work experience, and RFC, there are jobs that

exist in significant numbers in the national economy that Plaintiff can perform,

including cleaner II, dietary aide, and kitchen helper. Tr. 31.

10. Plaintiff has not been under a disability, as defined in the Social Security Act, since

March 13, 2018, the alleged onset date. Tr. 32.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner’s decision if it is based on the proper

legal standards and the legal findings are supported by substantial evidence in the record. 42

USS.C. § 405(g); Batson v. Comm ’r Soc. Sec. Admin. , 359 F.3d 1190, 1193 (9th Cir. 2004); see

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). ‘Substantial evidence’ means

‘more than a mere scintilla but less than a preponderance,’ or more clearly stated, ‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Bray v.

Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53

F.3d 1035, 1039 (9th Cir. 1995)), In reviewing the Commissioner’s alleged errors, this Court

must weigh “both the evidence that supports and detracts from the [Commissioner’s]

conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of

the evidence are insignificant if the Commissioner’s interpretation is rational. Burch v. Barnhart,

400 F.3d 676, 679 (9th Cir. 2005).

If the decision of the Appeals Council is the final decision of the Commissioner, this

Court must review the decision of the Appeals Council to determine whether that decision is

supported by substantial evidence. Howard v. Heckler, 782 F.2d 1484 (9th Cir. 1986), Where the

evidence before the ALJ or Appeals Council is subject to more than one rational interpretation,

the Commissioner’s conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53

F.3d at 1041). “However, a reviewing court must consider the entire record as a whole and may

not affirm simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec.

5 - Opinion and Order

Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a

reviewing court “cannot affirm the [Commissioner’s] decision on a ground that the

[Administration] did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 454

F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse the

Commissioner’s decision on account of an error that is harmless, /d, at 1055-56. “[T]he burden

of showing that an error is harmful normally falls upon the party attacking the agency’s

determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

Even where findings are supported by substantial evidence, “the decision should be set

aside if the proper legal standards were not applied in weighing the evidence and making the

decision.” Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42

U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript

record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or

without remanding the case for a rehearing.

DISCUSSION

Plaintiff presents the following issues for review:

1. Whether the ALJ properly evaluated Plaintiffs subjective symptom testimony.

2. Whether the ALJ properly evaluated the medical opinions and evidence.

3. Whether the ALJ properly developed the RFC

4, Whether the ALJ failed to properly develop the record as to Plaintiff's mental

impairments*

For the following reasons, the Court finds that the ALJ did not err. The decision of the

Commissioner is affirmed.

? Plaintiff also argues that the job cleaner II is incompatible with plaintiff's RFC. This argument lacks merit because

the ALJ cited 199,000 other jobs in the national economy (Tr. 31.), which is a significant number on its own. See

Gutierrez v. Comm’r Soc, Sec., 740 F.3d 519, 527 (9th Cir. 2014) (holding that 25,000 jobs was a significant

number.)

6 - Opinion and Order

I, The ALJ properly evaluated Plaintiff's subjective symptom testimony.

When deciding whether to accept the subjective symptom testimony of a claimant, the

ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective

medical evidence of one or more impairments which could reasonably be expected to produce

some degree of symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The

claimant is not required to show that the impairment could reasonably be expected to cause the

severity of the symptom, but only to show that it could reasonably have caused some degree of

the symptom. Jd.

In the second stage of the analysis, the ALJ must consider the intensity, persistence, and

limiting effects of the alleged symptoms based on the entire record, SSR 16-3p at *7-8. The ALJ

will consider the “[lJocation, duration, frequency, and intensity of pain or other symptoms”

reported by the claimant, any medical sources, and any non-medical sources. /d. The ALJ’s

decision must contain “specific reasons for the weight given to the individual’s symptoms, be

consistent with and support by the evidence, and be clearly articulated so the individual and any

subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms.” /d.

Additionally, the evidence upon which the ALJ relies must be substantial. See Holohan v.

Massinari, 246 F.3d 1195, 1208 (9th Cir. 2001); Sullivan, 947 F.2d 341, 345-46 (9 Cir. 1991).

In rejecting claimant’s testimony about the severity of his symptoms, the ALJ must give

“specific, clear and convincing reasons for doing so.” Brown-Hunier v, Colvin, 806 F.3d 487,

493 (9th Cir. 2015).

Plaintiff testified that he suffers from progressive severe headaches that resulted in his

departure from work in 2013. Tr. 52. He stated that his condition got considerably worse from

2016 to 2018. Tr. 53, 462, Plaintiff told Dr. Ryan McKinnon, M.D. that his headaches prevent

7 - Opinion and Order

him from completing personal care including bathing, shaving, caring for his hair, and feeding

himself. Tr. 72, 193-94, 202, 462. Plaintiff stated that his symptoms are further provoked by

light, noise, and heat. Tr. 282. Inconsistently, on other occasions Plaintiff testified that he

showered in the morning, cooked at home, fed the cat, and mowed the law. Tr.53—54, 58, 72,

194-95, 202. Plaintiff asserts that he spends his days in seclusion, keeping as still and quiet as

possible with minimal exposure to light and noise. Tr, 55, 72, 195-96, 253, 282, 44446, 455-

26, 462, On a good day, Plaintiff stated that he is able to drive without restrictions, attend church,

and follow instructions. Tr. 47, 58, 72, 197.

The ALJ found that “the claimant’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms; however, the claimant’s statements

concerning the intensity, persistence and limiting effects of these symptoms are not entirely

consistent with the medical evidence and other evidence in the record for the reasons explained

in this decision.” Tr. 26. Plaintiff assigns error to the ALJ’s evaluation of his subjective symptom

testimony, and in particular with respect to his intractable headaches stemming from the right

eye. PI.’s Br. 11, ECF No. 15. The Commissioner asserts the ALJ supplied three valid rationales

that undermined Plaintiff's subjective complaints: (A) inconsistencies with his activities of daily

living; (B) Plaintiffs symptoms improving with treatment; and (C) inconsistencies with the

medical record. Def.’s Br. 5-9, ECF No. 21.

A. Activities of Daily Living

The Commissioner contends the ALJ properly rejected Plaintiff's testimony based upon

his activities of daily living. Def.’s Br. 5-6, ECF No. 21. Activities of daily living can form the

basis for an ALJ to discount a claimant’s testimony in two ways: (1) where the activities

“contradict [a claimant’s] testimony”; or (2) as evidence a claimant can work if the activities

& - Opinion and Order

“meet the threshold for transferable work skills.” Orn, 495 F.3d at 639. A claimant, however,

need not be utterly incapacitated to receive disability benefits, and sporadic completion of

minimal activities is insufficient to support a negative credibility finding. Vertigan v. Halter, 260

F.3d 1044, 1050 (9th Cir. 2001); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)

(requiring the level of activity to be inconsistent with the claimant’s alleged limitations to be

relevant to her credibility).

In this case, Plaintiff's activities of daily living directly contradict his testimony. The ALJ

cited hearing testimony where he stated he was able to take care of himself, cook, and mow the

lawn as being directly contradictory to his previous statements in the medical record where he

said he could not do such activities. Tr. 27. Specifically, the ALJ explains that Plaintiff stated to

Dr. McKinnon, that he could not do personal care due to his headaches, and that his pain was

provoked by the heat of a cooking stove, noise, and light. Tr. 27, 282.

The ALJ reasonably found that Plaintiffs daily activities stood at odds with his

allegations of very severe limitations, resulting in him spending his days in seclusion, keeping as

still and quiet as possible with minimal exposure to light and noise. Therefore, Plaintiff's

activities of daily living were a clear and convincing reason to reject Plaintiff's testimony.

B. Improvement With Treatment

The Commissioner next asserts that the ALJ properly rejected Plaintiffs testimony based

on Plaintiff's symptoms improving with treatment, Def.’s Br. 6-7, ECF No. 21. The

effectiveness of treatment or medication is a relevant factor in determining the severity of a

claimant's symptoms. 20 C.F.R. § 404,1529(c)(3). Evidence of conservative treatment is

sufficient to discount a claimant's testimony regarding the severity of an impairment. Parra y.

Astrue, 481 F.3d 742, 751 (9th Cir, 2007).

9 - Opinion and Order

In this case, Plaintiff presented with complaints of chronic head pain stemming from the

right eye. In July 2018, Plaintiff visited Dr. Kathleen Bernice Digre, M.D. for a neuro-

opthalmology consult to address his chronic pain. Dr. Digre recommended Plaintiff start a trial of

Topiramate (Topamax), among other medications, as a migraine preventative. Tr. 466. The ALJ

noted that Plaintiff did not return to Dr. Digre for further care. Tr. 27. Shortly after in July 2018,

Dr. Rick Roberts, M.D. initiated Topamax preventative therapy. Tr. 376-77. In August 2018, Dr.

Roberts indicated that Plaintiff was “pain free” with Topamax treatment. Tr, 373. In September

2018, Dr. Roberts reported that Plaintiff was pleased with his pain control and determined that

Plaintiff had responded “beautifully” to the Topamax treatment. Tr. 370.

The ALJ’s finding that the record established significant relief from medication within

twelve months of the amended alleged disability onset date is supported by substantial evidence,

and this was a clear and convincing reason to discount the severity of Plaintiff's symptoms.

C. Objective Medical Evidence

The Commissioner next asserts that the ALJ properly discounted Plaintiff's allegations

because they were inconsistent with the objective medical evidence. Def.’s Br. 7-9, ECF No. 21.

In some circumstances, an ALJ may reject subjective complaints where the claimant’s

“statements at her hearing do not comport with objective medical evidence in her medical

record.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir, 2009), However, a

lack of objective evidence may not be the sole basis for rejecting a claimant’s subjective

complaints. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Moreover, an ALJ may

not cherry-pick isolated instances of favorable symptoms when the record as a whole reflects

long-standing disability. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014); see also

Garrison y. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).

10 - Opinion and Order

Here, the ALJ determined that the medical record contradicted Plaintiff's allegations of

persistent debilitating headaches. Tr. 227. The ALJ explained that Dr. McKinnon confirmed

Plaintiff was blind in his right eye but indicated a “completely normal” exam of the left eye. Tr.

27. The ALJ also found that brain CT, MRI, and EEG did not. show intracranial abnormality. Tr,

27, 287, 304, 343-46, 356, 359, 387. The ALJ found that Plaintiff's testimony regarding his

seizures being induced by his hypersensitivity to noise was inconsistent with the severity of his

medical condition. Tr. 28. The ALJ explained that there was no objective evidence of frequent,

severe seizures, or pseudoseizures, Tr, 28,

The ALJ determined that given Plaintiffs medical examinations did not show greater

limitations, the determined RFC adequately accounts for Plaintiff's impairments. Tr. 25. As

such, the objective medical evidence was a clear and convincing reason to reject Plaintiff's

testimony.

Il. The ALJ properly evaluated the medical opinions of Dr. Arnold and Dr. Smith.

Under prior Social Security regulations, a hierarchy of medical opinions dictated the

weight that must be given by an ALJ: treating doctors were generally given the most weight and

non-examining doctors were generally given the least weight. See 20 C.F.R. §§ 404.1527,

416.927 (1991); 56 Fed. Reg. 36,932 (Aug. 1, 1991). For applications filed on or after March 27,

2017, the new regulations eliminate the old hierarchy of medical opinions, 20 C.F.R. §§

404.1520c(a), 416.920c(a) (2017). Plaintiff filed an application for disability insurance benefits

on April 4, 2017. Thus, the Commissioner’s new regulations apply to the ALJ’s assessment of

this opinion. See 20 C.F.R. § 404.1520c; 82 Fed. Reg. 5844 (Jan. 18, 2017); see also 82 Fed.

Reg. 15,132 (Mar. 27, 2017) (correcting technical errors).

- Opinion and Order

The new rules no longer provide for any inherent weight: “We [the SSA] will not defer or

give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or

prior administrative medical finding(s) including those from your medical sources.” 20 C.F.R. §§

404.1520c(a), 416.920c(a), The SSA “considers” various medical opinions for claims filed on or

after March 27, 2017, and determines which medical opinions are most persuasive. 20 C.F.R. §§

404.1520c{a), 416.920c(a). In evaluating which opinions are most persuasive, the ALJ considers

several factors. The two most important factors are supportability & consistency. /d. Secondary

factors include the relationship with the claimant, specialization, and other factors. /d. at

404,1520c(c), 416.920c(c).

In this case, the ALJ accepted the opinion of non-examiner Dr. Leslie Arnold, M.D. and

rejected the opinion of examiner Dr. Ryan Smith, M.D. Plaintiff asserts that the Ninth Circuit

defers to medical opinions in the following descending order: those medical professionals who

treat, followed by those who examine but do not treat, followed by those who neither treat nor '

examine. Pj.’s Br. 13-14, ECF No. 15., citing Garrison v. Colvin, 759 F.3d 995, 2012 (9th Cir.

2014). Plaintiff argues that the ALJ did not provide specific and legitimate reasons for

discounting an examining doctor’s report, and that an examining doctor’s report takes

precedence over the report of a non-examiner. PI.’s Br. 14, ECF No. 15., citing Garrison, 759

F.3d at 1012. Plaintiff is mistaken.

Under the regulations governing applications filed on or after March 27, 2017, opinions

from treating doctors no longer get any deference, and no special rules apply when evaluating

them. See 20 C.F.R. §§ 404.1520c(a}, 416.920c(a) (2017). As such, and semblance of a hierarchy

between medical opinions based on the relationship between a claimant and a doctor has been

eliminated. See 82 Fed. Reg. at 5852-53. Therefore, Plaintiff is incorrect in stating that an

12 - Opinion and Order

examining doctor’s report takes precedence over a non-examiner’s report unless the ALJ

provides specific and legitimate reasons to discount it. When evaluating which opinions are most

persuasive, under the new regulations, the two most important factors are supportability &

consistency. 20 C.F.R. §§ 404.1520c(a), 416.920c(a).

A. Dr. Smith

Dr. Smith completed a headache health status questionnaire in October 2018. Tr. 445-46.

He found that the headaches create profound light sensitivity, sound sensitivity, and difficulty

thinking. Tr. 446. Dr. Smith opined that these symptoms would constantly interfere with

Plaintiff's ability to pay attention and concentrate when performing simple work tasks. Tr. 446.

He further opined that Plaintiff would require ten-minute breaks several times an hour. Tr. 446.

The ALJ found Dr. Smith’s opinion not persuasive. The ALJ rejected Dr. Smith’s opinion

on the basis that he only examined Plaintiff once, and that the responses in the questionnaire are

primarily based on the Plaintiffs subjective complaints, rather than objective medical findings.

Tr. 29. The ALJ further explained that that there is no indication that Dr. Smith was given

Plaintiff's medical records from other treating sources before rendering his opinion, given that

his responses are not supported by objective medical findings. Tr. 29, These objective medical

findings include Plaintiff's positive response to treatment, activities of daily living, and apparent

inconsistencies in reporting his symptoms. Tr. 29. Therefore, the ALJ's evaluation of Dr. Smith’s

opinion was reasonably supported by substantial evidence and included no harmful error.

B. Dr. Arnold

Under the new regulations, a non-examining opinion is evidence the ALJ “must

consider” because consultants are “highly qualified and experts in Social Security disability

evaluation.” 20 C.F.R. § 404.1513a(b)(1). State agency consultant Dr. Arnold reviewed the

13 - Opinion and Order

record in this case, noting Plaintiff's postural and environmental limitations, but no exertional

limitations. Tr. 29. Dr. Arnold found the visual field testing conducted by Dr. McKinnon was

inconsistent with Plaintiffs eye examination, and therefore was not valid. Tr. 84. The ALJ found

Dr. Arnold’s non examining opinion highly persuasive and determined that the opinion

supported Plaintiff's RFC. Tr. 29.

Plaintiff challenges the ALJ’s evaluation of Dr. Arnold’s opinion by asserting that the

ALJ’s only reason for accepting the opinion was that the RFC the ALJ created was supported by

Dr. Arnold’s opinion. Pl.’s Br. 14, ECF No. 15. This is factually incorrect, as discussed above

the ALJ’s evaluation of this opinion sufficiently considered supportability and consistency, and

the Court finds that it was reasonably supported by substantial evidence.

Til. Plaintiff's RFC Determination Was Supported by Substantial Evidence

An individual's residual functional capacity is the most he can do considering his

impairments and limitations, 20 C.F.R. § 416.945; SSR 96-8p, available at 1996 WL 374184.

The ALJ is “responsible for translating and incorporating clinical findings into a succinct”

residual functional capacity. Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir.

2015). The residual functional capacity properly includes only limitations with record

support. Bayliss, 427 F.3d at 1217; Batson, 359 F.3d at 1197. Here, Plaintiff argues that the RFC

determination is not supported by substantial evidence. Pl.’s Br. 16, ECF No. 15. The Court

disagrees.

Plaintiff argues that the RFC determination does not include the functional limitations

opined by Dr. Smith. Pl.’s Br, 16, ECF No. 15, As discussed above, the ALJ properly discounted

Dr, Smith’s medical opinion, and therefore, was not required to include those discounted

14 - Opinion and Order

limitations in the RFC determination. Therefore, the Court finds that the ALJ's RFC

determination is supported by substantial evidence in the record.

IV. The ALJ did not fail to develop the record

The ALJ in a social security case has an independent “‘duty to fully and fairly develop

the record and to assure that the claimant's interests are considered.’” Smolen, 80 F.3d at 1288

(quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.1983)). This duty extends to the

represented as well as to the unrepresented claimant. Jd. When the claimant is unrepresented,

however, the ALJ must be especially diligent in exploring all the relevant facts. Cox v. Califano,

587 F.2d 988, 991 (9th Cir.1978). Ambiguous evidence, or the ALJ's own finding that the record

is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to “conduct

an appropriate inquiry.” Smolen, 80 F.3d at 1288; Armstrong v. Comm'r of Soc, Sec. Admin,, 160

F.3d 587, 590 (9th Cir.1998), The ALJ may discharge this duty in several ways, including:

subpoenaing the claimant's physicians, submitting questions to the claimant's physicians,

continuing the hearing, or keeping the record open after the hearing to allow supplementation of

the record. Tidwell v. Apfel, 161 F .3d 599, 602 (9th Cir.1998); Smolen, 80 F.3d at 1288.

Plaintiff argues the ALJ should have further developed the record regarding Plaintiff's

limitations from pseudoseizures. Pl.’s Br. 16-17, ECF No. 15. The ALJ's duty to further develop

the record is not triggered by the absence of opined functional limitations in the workplace, but

instead is triggered when the record is ambiguous or inadequate. See Webb v. Barnhart, 433 F.3d

683, 687 (9th Cir. 2005) (“The ALJ's duty to supplement a claimant's record is triggered by

ambiguous evidence” or “the ALJ's own finding that the record is inadequate.”). Here, the ALJ

found that Plaintiff's pseudoseizures were a severe impairment at step two. Tr. 23. The ALJ

considered that Dr. Roberts and his staff reported and witnessed Plaintiffs pseudoseizures and

15 - Opinion and Order

determined that the medical evidence does not establish that Plaintiff experienced ongoing

frequent, severe pseudoseizures for a period of twelve continuous months. Tr. 28. The ALJ

explained that the pseudoseizures were very short-lived without any neurologic deficit, and

completely without any postictal state. Tr. 28. Nevertheless, the ALJ agreed that Plaintiffs

pseudoseizures are a serious impairment affecting his ability to work and translated those

impairments into concrete workplace restrictions through his RFC. Tr. 28. The ALJ was not

required to order further examinations regarding Plaintiff's pseudoseizures, and the ALJ did not

err in declining to do so. See Webb, 433 F.3d at 683. Accordingly, the record was unambiguous

and sufficient to determine Plaintiffs ability to work.

ORDER

The ALJ did not err. The decision is AFFIRMED. Zo

It is so ORDERED and DATED this _¢! day of May, □□

Go

MARK D, CLARKE

United States Magistrate Judge

16 - Opinion and Order