“[s]ubstantial evidence is 20 more than a mere scintilla but less than a preponderance”
How later courts described this case
- “[s]ubstantial evidence is 20 more than a mere scintilla but less than a preponderance”
- “Although lack 7 of medical evidence cannot form the sole basis for discounting pain testimony, it is a 8 factor that the ALJ can consider in his credibility analysis.”
- “The ALJ is permitted 12 || to consider lack of treatment in his credibility determination.”
Written by the judges who cited it.
The opinion
Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 1 of 8 Page ID #:704
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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JOSUE R.,1
11 Case No. 2:21-cv-08654-GJS
Plaintiff
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v.
13 MEMORANDUM OPINION AND
KILOLO KIJAKAJI, Acting ORDER
14 Commissioner of Social Security,
15 Defendant.
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17 I.
18 II. PROCEDURAL HISTORY
19 Plaintiff Josue R. (“Plaintiff”) filed a complaint seeking review of the
20 decision of the Commissioner of Social Security denying his application for
21 Supplemental Security Income (“SSI”). The parties filed consents to proceed before
22 the undersigned United States Magistrate Judge [Dkts. 10 and 11] and briefs [Dkts.
23 18 (“Pl. Br.”) & 26 (“Def. Br.”)] addressing disputed issues in the case. The matter
24 is now ready for decision. For the reasons set forth below, the Court finds that this
25 matter should be affirmed.
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1 In the interest of privacy, this Order uses only the first name and the initial of
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the last name of the non-governmental party in this case.
Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 2 of 8 Page ID #:705
1 III. ADMINISTRATIVE DECISION UNDER REVIEW
2 Plaintiff filed an application for SSI on November 21, 2019, alleging
3 disability beginning May 1, 2018. [Dkt. 15, Administrative Record (“AR”) 18, 167-
4 72.] Plaintiff’s application was denied at the initial level of review and on
5 reconsideration. [AR 18, 70-75, 85-91.] A telephone hearing was held before
6 Administrative Law Judge James Carberry (“the ALJ”) on February 23, 2021. [AR
7 18, 30-43.]
8 On March 4, 2021, the ALJ issued an unfavorable decision applying the five-
9 step sequential evaluation process for assessing disability. [AR 18-25.] See 20
10 C.F.R. § 416.920(b)-(g)(1). At step one, the ALJ determined that Plaintiff has not
11 engaged in substantial gainful activity since the application date of November 21,
12 2019. [AR 20.] At step two, the ALJ determined that Plaintiff has the following
13 severe impairments: status post gunshot wound to the right upper chest;
14 hemothorax; right brachial plexus injury; and status post stent placement in the right
15 axillary artery. [AR 20.] At step three, the ALJ determined that Plaintiff does not
16 have an impairment or combination of impairments that meets or medically equals
17 the severity of one of the impairments listed in Appendix I of the Regulations. [AR
18 21.] See 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ found that Plaintiff has the
19 residual functional capacity (“RFC”) to perform light work, as defined in 20 C.F.R.
20 § 416.967(b), except he has no use of the right (dominant) upper extremity, is
21 precluded from using ladders, ropes or scaffolds, and is limited to using ramps and
22 stairs occasionally and engaging in other postural activities frequently. [AR 21.]
23 At step four, the ALJ determined that Plaintiff does not have any past relevant work.
24 [AR 23.] At step five, based on the testimony of the vocational expert (“VE”), the
25 ALJ found that Plaintiff could perform other work that exists in significant numbers
26 in the national economy, including representative occupations such as usher,
27 information clerk, and ticket taker. [AR 24.] Therefore, the ALJ concluded that
28 Plaintiff has not been disabled since November 21, 2019, the application date. [AR
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Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 3 of 8 Page ID #:706
1 24.]
2 The Appeals Council denied review of the ALJ’s decision on August 26,
3 2021. [AR 1-6.] This action followed.
4 Plaintiff contends that the ALJ failed to develop a complete medical record to
5 support the RFC assessment and failed to offer legally sufficient reasons for
6 rejecting his subjective complaints. [Pl. Br. at 4-16.]
7 The Commissioner asserts that the ALJ’s decision is supported by substantial
8 evidence and should be affirmed. [Def. Br. at 2-9.]
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10 IV. GOVERNING STANDARD
11 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to
12 determine if: (1) the Commissioner’s findings are supported by substantial
13 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v.
14 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r
15 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence … is
16 ‘more than a mere scintilla’ … [i]t means – and only means – ‘such relevant
17 evidence as a reasonable mind might accept as adequate to support a conclusion.’”
18 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v.
19 Comm’r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 2014) (“[s]ubstantial evidence is
20 more than a mere scintilla but less than a preponderance”) (internal quotation marks
21 and citation omitted).
22 The Court will uphold the Commissioner’s decision when “‘the evidence is
23 susceptible to more than one rational interpretation.’” Burch v. Barnhart, 400 F.3d
24 676, 681 (9th Cir. 2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
25 1989)). However, the Court may review only the reasons stated by the ALJ in the
26 decision “and may not affirm the ALJ on a ground upon which he did not rely.”
27 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the
28 Commissioner’s decision if it is based on harmless error, which exists if the error is
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Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 4 of 8 Page ID #:707
1 “inconsequential to the ultimate nondisability determination, or that, despite the
2 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin,
3 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted).
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V. DISCUSSION
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A. Development of the Medical Record
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Plaintiff contends that the ALJ failed to develop a complete medical record to
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support the RFC assessment. [Pl. Br. at 2-5.] Specifically, Plaintiff asserts that the
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“vast majority” of medical evidence significantly predates his SSI application date
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of November 21, 2019, because it relates to treatment of a gunshot wound to his
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right chest sustained on May 13, 2018. [Pl. Br. at 4.] Plaintiff suggests that the ALJ
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should have developed the record further “by ordering a consultative examination
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… to provide an objective assessment of Plaintiff’s current physical abilities.” [Pl.
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Br. at 5.]
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Plaintiff waived this challenge to the development of the medical record by
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failing to raise it before the ALJ. “[W]hen claimants are represented by counsel,
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they must raise all issues and evidence at their administrative hearings in order to
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preserve them on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999).
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Plaintiff, who was represented by counsel at the hearing, knew that the record
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contained very few medical records issued after Plaintiff’s application date (i.e., “a
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handful of occupational therapy visits in December of 2019 and January of 2020,
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follow-up diagnostic imaging studies of Plaintiff’s right upper extremity, and two
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pages of handwritten … treatment notes”). [Pl. Br. at 4; AR 33, 246-58, 601-04,
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610-11.] If Plaintiff believed that the ALJ needed to develop the record further
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because it was lacking evidence of Plaintiff’s physical abilities during the relevant
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period, he should have raised that issue at the hearing. Plaintiff’s failure to do so
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waived the issue. See Meanel, 172 F.3d at 1115.
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Moreover, even if the issue had not been waived, Plaintiff has not shown that
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1 it warrants remand. “An ALJ’s duty to develop the record further is triggered only
2 when there is ambiguous evidence or when the record is inadequate to allow for
3 proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th
4 Cir. 2001). A consultative examination may be ordered “to try to resolve an
5 inconsistency in the evidence, or when the evidence as a whole is insufficient to
6 allow” an ALJ to make a determination on a claim. 20 C.F.R. § 404.1519a(b).
7 Here, Plaintiff has failed to demonstrate that the record was inadequate to allow for
8 proper evaluation of his claim. The ALJ obtained and reviewed Plaintiff’s medical
9 records but found no ambiguities, inadequacies, or conflicts in the record that had to
10 be resolved. Thus, the ALJ was not required to order a consultative examination or
11 request additional information in order to fulfill his duty to fully and fairly develop
12 the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)
13 (explaining that “[a]mbiguous evidence, or the ALJ’s own finding that the record is
14 inadequate to allow for proper evaluation of the evidence,” triggers the ALJ’s duty
15 to further develop the record).
16 B. Plaintiff’s Symptom Testimony
17 Plaintiff contends the ALJ improperly rejected his subjective symptom
18 testimony. [Pl. Br. at 5-7.]
19 In evaluating a claimant’s testimony regarding subjective pain or symptoms,
20 an ALJ must engage in a two-step analysis. See Lingenfelter v. Astrue, 504 F.3d
21 1028, 1035-36 (9th Cir. 2007); 20 C.F.R. § 416.929. “First, the ALJ must determine
22 whether the claimant has presented objective medical evidence of an underlying
23 impairment, ‘which could reasonably be expected to produce the pain or other
24 symptoms alleged.’” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan,
25 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if the claimant meets the first
26 step and there is no evidence of malingering, “‘the ALJ can reject the claimant’s
27 testimony about the severity of her symptoms only by offering specific, clear and
28 convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting Smolen
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Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 6 of 8 Page ID #:709
1 v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). “The ALJ must state specifically
2 which symptom testimony is not credible and what facts in the record lead to that
3 conclusion.” Smolen, 80 F.3d at 1284; see also Soc. Sec. Ruling 16-3p Titles II &
4 XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P, 2017 WL 5180304,
5 *4 (S.S.A. Oct. 25, 2017) (explaining that the ALJ must “evaluate the intensity and
6 persistence of [the] individual’s symptoms ... and determine the extent to which
7 [those] symptoms limit [his] ... ability to perform work-related activities”).
8 At the hearing, Plaintiff testified that he has not been able to use his right
9 hand and arm since he suffered a gunshot wound to the right chest and shoulder area
10 in May 2018. [AR 33-34, 36, 40.] Plaintiff stated that he cannot watch his two-
11 year-old son by himself and his wife assists him with activities such as showering
12 and tying his shoes. [AR 34, 41.] In his Exertion Questionnaire, Plaintiff indicated
13 that he has to use his non-dominant (left) hand, is unable to lift, carry or grip
14 objects, feels lightheaded and sleepy from his medications, has difficulty breathing,
15 needs “constant breaks,” feels very tired and weak after walking one to two blocks,
16 and needs help with housework. [AR 194-97.] In his Disability Report, Plaintiff
17 alleged that he suffers from depression, nerve damage, pain, numbness, tingling,
18 swelling, muscle weakness, and loss of muscle. [AR 178.]
19 The ALJ found that Plaintiff’s “medically determinable impairments could
20 reasonably be expected to cause the alleged symptoms,” but Plaintiff’s “statements
21 concerning the extent to which he is limited by these symptoms are not entirely
22 consistent with the medical evidence and other evidence in the record.” [AR 22.]
23 Plaintiff argues that the ALJ erred by using conclusory “boilerplate” language to
24 reject his symptom testimony without “contrast[ing] any individual statements to
25 specific medical findings.” [Pl. Br. at 7.] Plaintiff’s argument lacks merit. Rather
26 than relying only on “boilerplate” language, the ALJ discussed specific, clear and
27 convincing reasons for rejecting Plaintiff’s testimony, as discussed below.
28 ///
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1 1. Medical Evidence
2 The ALJ may consider objective medical evidence when assessing a
3 claimant’s testimony. See 20 C.F.R. § 416.929(c)(2) (“Objective medical evidence
4 … is a useful indicator to assist us in making reasonable conclusions about the
5 intensity and persistence of your symptoms and the effect those symptoms, such as
6 pain, may have on your ability to work…”); Burch, 400 F.3d at 681 (“Although lack
7 of medical evidence cannot form the sole basis for discounting pain testimony, it is a
8 factor that the ALJ can consider in his credibility analysis.”).
9 Here, the ALJ found that Plaintiff’s impairments (status post gunshot wound
10 to the right upper chest, hemothorax, right brachial plexus injury, and status post
11 stent placement in the right axillary artery) resulted in significant functional
12 limitations, including no use of the right (dominant) upper extremity. [AR 21-23,
13 439.] Although the ALJ acknowledged the “genuineness” of Plaintiff’s symptom
14 testimony, the ALJ found that some of Plaintiff’s reported symptoms and limitations
15 were inconsistent with the evidence of record. [AR 22.] In particular, the ALJ
16 noted that while Plaintiff claimed that he suffered from depression, there was no
17 evidence from any medical source establishing depression as a medically
18 determinable impairment. [AR 20, 22, 178.] Plaintiff does not dispute this finding.
19 There was also no evidence that Plaintiff sought or received mental health treatment.
20 [AR 20.] Further, while Plaintiff alleged that he could not lift, carry, or grip objects,
21 the ALJ noted that the medical record did not show any limitations in Plaintiff’s use
22 of his left upper extremity. [AR 22-23, 194-95.] Thus, the ALJ properly considered
23 the lack of objective medical evidence in discounting Plaintiff’s subjective symptom
24 testimony. See Burch, 400 F.3d at 680.
25 2. Treatment History
26 The ALJ found that the treatment Plaintiff received undermined his subjective
27 symptom testimony. [AR 22.] With respect to Plaintiff’s complaints of neuropathic
28 pain and limitations in the use of his right upper extremity, the ALJ noted that
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Case 2:21-cv-08654-GJS Document 27 Filed 02/23/23 Page 8of8 Page ID#:711
1 || treatment consisted primarily of medication and physical therapy. [AR 22, 411,
2 || 614.] Plaintiff does not cite any medical reports or other evidence in the record
3 || suggesting that Plaintiff received more aggressive forms of treatment after he was
4 || released from the hospital in May 2018.” “[E]vidence of ‘conservative treatment’ is
5 || sufficient to discount a claimant’s testimony regarding severity of an impairment.”
6 || Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007); see also Meanel, 172 F.3d at
7 || 1114 (rejecting subjective pain complaints where petitioner’s “claim that she
8 || experienced pain approaching the highest level imaginable was inconsistent with the
9 || ‘minimal, conservative treatment’ that she received’). Plaintiffs failure to seek
10 || treatment for depression also supported the ALJ’s decision to discount Plaintiffs
11 || subjective complaints. [AR 20, 22]; Burch, 400 F.3d at 681 (“The ALJ is permitted
12 || to consider lack of treatment in his credibility determination.”).
13 Accordingly, the ALJ’s assessment of Plaintiff's subjective complaints is
14 || supported by substantial evidence.
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16 □□□ CONCLUSION
17 For all of the foregoing reasons, IT IS ORDERED that the decision of the
18 || Commissioner finding Plaintiff not disabled is AFFIRMED
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20 IT IS SO ORDERED.
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22 || DATED: February 23, 2023 pea
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74 GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE
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26 |,
2 While the record reflects that Plaintiff was prescribed Norco (hydrocodone
27 || with acetaminophen) when he was released from the hospital in May 2018 [AR
28 411], his subsequent medical records indicate he had stopped taking Norco [AR
5576, 82-83, 589, 596-97, 611, 617].