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