2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 MICHELLE RENAY GALINDO, No. 1:22-cv-00373-GSA 7 Plaintiff, 8 v. ORDER DIRECTING ENTRY OF 9 JUDGMENT IN FAVOR OF DEFENDANT KILOLO KIJAKAZI, acting COMMISSIONER OF SOCIAL SECURITY 10 Commissioner of Social Security, AND AGAINST PLAINTIFF

11 (Doc. 20, 211, 22) Defendant. 12

13

14 I. Introduction 15 Plaintiff Michelle Renay Galindo (“Plaintiff”) seeks judicial review2 of a final decision of 16 the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application 17 for disability insurance benefits pursuant to Title II of the Social Security Act. Because substantial 18 evidence and applicable law support the ALJ’s decision, the decision will be affirmed. 19 II. Factual and Procedural Background 20 On January 6, 2020, Plaintiff applied for disability insurance benefits alleging disability as 21 of February 15, 2014. The Commissioner denied the application initially on May 13, 2020 and on 22 reconsideration June 29, 2020. AR 79, 85. Plaintiff requested a hearing which was held before an 23 Administrative Law Judge (the “ALJ”) on March 8, 2021. AR 23–50. On May 18. 2021 the ALJ 24 issued an unfavorable decision. AR 7–22. The Appeals Council denied review on January 24, 25 2022 (AR 1–6) and this appeal followed. 26 III. The Disability Standard 27 1 Docket entry 21 should be terminated as moot; it is a notice of briefing extension authorized without leave of court; 28 the reply brief is at docket 24. 2 The parties consented to the jurisdiction of a United States Magistrate Judge. Doc. 7, 10. Pursuant to

(g), this court has the authority to review a decision by the 2 Commissioner denying a claimant disability benefits. “This court may set aside the

3 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal

4 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180

, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the

6 record that could lead a reasonable mind to accept a conclusion regarding disability status. See

7 Richardson v. Perales,

(1971). It is more than a scintilla, but less than a

8 preponderance. See Saelee v. Chater,

(9th Cir. 1996) (internal citation omitted).

9 When performing this analysis, the court must “consider the entire record as a whole and 10 may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social 11 Security Admin.,

(9th Cir. 2006) (citations and quotations omitted). If the 12 evidence could reasonably support two conclusions, the court “may not substitute its judgment for 13 that of the Commissioner” and must affirm the decision. Jamerson v. Chater,

, 1066 14 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless 15 error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the 16 ultimate nondisability determination.” Tommasetti v. Astrue,

(9th Cir. 2008). 17 To qualify for benefits under the Social Security Act, a plaintiff must establish that 18 he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to 19 last for a continuous period of not less than twelve months.

1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not 21 only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists 22 in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether 23 he would be hired if he applied for work. 24 42 U.S.C. §1382c(a)(3)(B). 25 To achieve uniformity in the decision-making process, the Commissioner has established a 26 sequential five-step process for evaluating a claimant’s alleged disability.

(a)- 27 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the 28 claimant is or is not disabled.

, 416.929. Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 2 gainful activity during the period of alleged disability, (2) whether the claimant had medically

3 determinable “severe impairments,” (3) whether these impairments meet or are medically

4 equivalent to one of the listed impairments set forth in

, Subpart P, Appendix 1, (4)

5 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant

6 work, and (5) whether the claimant had the ability to perform other jobs existing in significant

7 numbers at the national and regional level.

(a)-(f). While the Plaintiff bears

8 the burden of proof at steps one through four, the burden shifts to the commissioner at step five to

9 prove that Plaintiff can perform other work in the national economy given her RFC, age, education 10 and work experience. Garrison v. Colvin,

(9th Cir. 2014). 11 IV. The ALJ’s Decision 12 At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity from 13 her alleged disability onset date of February 15, 2014 through her date last insured of December 14 31, 2016. AR 12. 15 At step two the ALJ found that Plaintiff had the following severe impairments: degenerative 16 disc disease; degenerative joint disease of the bilateral shoulders and left leg; hyperopia; obesity; 17 and refractive amblyopia of the right eye. AR 13. 18 At step three the ALJ found that Plaintiff did not have an impairment or combination thereof 19 that met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, 20 Subpart P, Appendix 1. AR 13. 21 Prior to step four the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and 22 concluded that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. 416.967(b) with 23 occasional climbing, occasional postural activities, no exposure to moving mechanical parts or 24 unprotected heights, no operation of motor vehicles, and occupations requiring no more than 25 frequent near acuity. AR 13. 26 At step four the ALJ concluded that through the date last insured (December 31, 2016), 27 Plaintiff was capable of performing her past relevant work as a medical assistant as actually and 28 generally performed. AR 16. The ALJ made an alternative finding at step five that Plaintiff could also perform jobs existing in significant numbers in the national economy: sorter, packer, and 2 cleaner/housekeeper. AR 16–17. Accordingly, the ALJ concluded that Plaintiff was not disabled

3 at any time between her alleged disability onset date of February 15, 2014 and her date last insured

4 of December 31, 2016. AR 17.

5 V. Issues Presented

6 Plaintiff asserts one claim of error: “The ALJ erred by failing to develop the record and

7 obtain an assessment of Plaintiff’s limitations from any source who considered all of Plaintiff’s

8 severe medical impairments, and erroneously relied on lay speculation to estimate an RFC that is

9 unsupported by substantial evidence.” MSJ. at 6–11, Doc. 20. 10 A. Failure to Develop The Record; RFC Generally 11 1. Applicable Law 12 13 Before proceeding to step four, the ALJ must first determine the claimant’s residual 14 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM,

, at *2 15 (C.D. Cal. Mar. 2, 2018). The RFC is “the most you can still do despite your limitations” and 16 represents an assessment “based on all the relevant evidence.”

(a)(1), 17 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 18 not severe.

(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p. 19 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record 20 21 such as medical records, lay evidence and the effects of symptoms, including pain, that are 22 reasonably attributed to a medically determinable impairment.” Robbins,

. See also 23

(a)(3) (residual functional capacity determined based on all relevant medical 24 and other evidence). “The ALJ can meet this burden by setting out a detailed and thorough 25 summary of the facts and conflicting evidence, stating his interpretation thereof, and making 26 findings.” Magallanes v. Bowen,

(9th Cir. 1989) (quoting Cotton v. Bowen, 799

, 1408 (9th Cir. 1986)). 28 The ALJ’s duty to further develop the record is triggered when the evidence is ambiguous 2 or inadequate for proper evaluation. Mayes v. Massanari,

, 459–60 (9th Cir. 2001); 3 Tonapetyan, 242 F.3d at 1150. A specific finding of ambiguity or inadequacy in the record is not 4 5 required to trigger the necessity to further develop the record where the record itself establishes the

6 ambiguity or inadequacy. McLeod v. Astrue,

(9th Cir. 2011); Garcia v. Comm’r

7 of Soc. Sec., No. 1:19-CV-00545-SAB,

, at *13 (E.D. Cal. Apr. 17, 2020).

8 2. Analysis

9 a. ALJs Authority to Independently Formulate RFC 10 Plaintiff initially contends the RFC is unsupported by substantial evidence because the ALJ 11 did not point to a medical opinion that supports the assessment, therefore the RFC constitutes the 12 13 ALJ’s layperson speculation. MSJ at 8. That assertion however is refuted by the regulations which 14 state that the RFC need not mirror a particular opinion, it is an assessment formulated by the ALJ 15 based on all relevant evidence. See

(a)(3). 16 Plaintiff further suggests an ALJ is not qualified to review clinical findings and translate 17 them into functional terms.

That is also refuted by controlling authority. See Rounds v. Comm’r 18 of Soc. Sec.,

(9th Cir. 2015), (“[T]he ALJ is responsible for translating and 19 incorporating clinical findings into a succinct RFC.”). 20 21 Plaintiff extensively cites dicta emphasizing the importance of a treating or examining 22 opinion. MSJ at 7–8 (citing Shipp v. Colvin, No. CV 13-9468 JC,

, at *7 (C.D. 23 Cal. Sept. 26, 2014) (collecting cases). However, there is no requirement that an ALJ must obtain 24 an examining opinion in every case before rendering an RFC determination. Although ALJs do 25 not have unbridled discretion to do so, an ALJ is almost always tasked with performing some 26 independent review of medical evidence that was never considered by one of the agency’s 27 28 reviewing physicians and translating it into an RFC, which is consistent with the ALJ’s role as articulated by the Ninth Circuit in Rounds quoted above. 2 Further, the regulations provide that the agency may obtain a consultative examination to 3 resolve evidentiary ambiguity or insufficiency, a determination made on a case by case basis. See 4 5

; Meadows v. Saul,

, 647 (9th Cir. 2020) (unpublished)

6 (noting there “is always some time lapse between a consultant’s report and the ALJ hearing and

7 decision, and the Social Security regulations impose no limit on such a gap in time.”; Magallanes

8 v. Bowen,

(9th Cir. 1989); Turner v. Comm’r Soc. Sec. Admin.,

,

9 1222-23 (9th Cir. 2010). 10 While there are no bright lines circumscribing the ALJ’s authority to independently interpret 11 medical evidence, some courts have found that an ALJ errs in independently reviewing medical 12 13 evidence when it involves: 1) review of raw medical data such as complex imaging findings or 14 laboratory testing results, 2) worsening of underlying impairments, or 3) development of novel 15 impairments. See, e.g., Nguyen v. Chater,

(1st Cir. 1999) (ALJ formulated 16 claimant’s residual functional capacity based on magnetic resonance images without the benefit of 17 any medical opinion about the functional limitations attributable to the impairments depicted in the 18 images); Goodman v. Berryhill, No. 2:17-CV-01228 CKD,

, at *5 (E.D. Cal. Jan. 19 2, 2019) (finding that the ALJ erred in adopting state agency consultants’ opinions which were 20 21 rendered before “plaintiff sustained a fall in November 2014” and before “an April 2015 MRI of 22 the lumbar spine [which] showed L1 compression deformity with worsened kyphosis . . .”); 23 Stevenson v. Colvin, No. 2:15-CV-0463-CKD,

, at *4 (E.D. Cal. Oct. 27, 2015) 24 (holding that the ALJ erred in adopting the functionality opinion of a non-examining state agency 25 physician, an opinion which pre-dated “plaintiff’s treating records regarding the progression of his 26 spinal impairments, which were developed after the date of Dr. Pancho’s opinion.”). 27 28 b. The Specific Records at Issue in This case 2 In short, an ALJ is not required as a matter of law to obtain a functional opinion from an 3 examining source. As for the reason Plaintiff argues such was warranted in this case, Plaintiff 4 5 emphasizes that the non-examining state agency consultants (also known as DDS [disability

6 determination service] doctors) who rendered opinions at the initial and reconsideration levels did

7 not consider her degenerative disc disease.

8 Plaintiff emphasizes the following records: 1) a lumbago diagnosis on June 5, 2014; 2)

9 chronic pain on October 1, 2015 (AR 828-29); 3) a pain management visit on March 17, 2017 for 10 back pain and shoulder pain demonstrating painful and limited range of motion of the lumbar spine; 11 tenderness, crepitus, and impingement sign of the shoulder; Plaintiff reported medications were 12 13 helping her pain to allow functional improvement (AR 699-701); 4) an April 10, 2017 MRI of the 14 lumbar spine showing mild disc desiccation at L5-S1 with a small 3 mm low signal central disc 15 protrusion and mild degenerative facet changes greater on the right (AR 877); 5) a MRI of the 16 cervical spine showing mild ventral flattening of the spinal cord at C6-7 due to an overlying disc 17 protrusion with mild canal stenosis (AR 879); 6) an April 20, 2017 follow up where the examination 18 findings were unchanged, Dr. Parmar reviewed the imaging, administered a Toradol injection and 19 continued Plaintiff on medication (AR 696); 7) a May 2017 follow up at which Plaintiff was 20 21 continued on pain medication including Vicodin, Motrin 800, Robaxin, Norco, ultram, Percocet, 22 hydrocodone, hysingla, and ketorolac tromethamine injections (AR 691, 693); and 8) continued 23 pain management appointments throughout 2017 on roughly a monthly basis for persistent pain 24 that was treated with medications and injections (AR 669–90). 25 In regard to the MRI of Plaintiff’s lumbar spine, the findings showed mild disc desiccation, 26 small disc protrusion, and mild degenerative facet changes. AR 877. In addition, the MRI of the 27 28 cervical spine showed mild ventral flattening of the spinal cord and mild canal stenosis. AR 879. Here, the ALJ did not review “raw medical data,” as the ALJ did not interpret the MRI images. 2 That was done by the radiologist who wrote a report. There is insufficient support in the above- 3 cited caselaw, or the caselaw cited by Plaintiff for the notion that an ALJ’s review of a radiology 4 5 report (as distinct from a review of the underlying images) necessarily constitutes impermissible

6 interpretation of “raw medical data”-- although a particularly nuanced or complex report could

7 theoretically rise to that level. Importantly, the radiology reports of the cervical and lumbar spine

8 discussed relatively common findings. Further, even assuming one must be qualified as a medical

9 expert to fully appreciate the nature and complexity of the pathology referenced in the radiology 10 report (disc desiccation, facet degeneration, ventral flattening of the spinal cord, central canal 11 stenosis), one need not have such expertise to understand the implications of the terms “mild” and 12 13 “small.” The ALJ reasonably inferred that such findings would not have a profoundly limiting 14 impact on the claimant’s functionality. 15 As to the clinical examination with Plaintiff’s pain management doctor (Dr. Parmar) on 16 March 17, 2017, the ALJ acknowledged the abnormalities Plaintiff emphasizes including: painful 17 and limited range of motion of the lumbar spine; shoulder tenderness with crepitus and positive 18 impingement sign. AR 14 (citing Ex. 8F/130 AR 699). However, as the ALJ noted, gait was 19 normal, ability to heal and toe walk was intact, and full muscle strength was noted in all extremities. 20 21

These clinical examination findings were not so technical that they were not susceptible to a 22 layperson’s understanding. They have self-evident relevance to functional capacities at issue such 23 as lifting, carrying, standing, and walking. Further, the ALJ did not discount the abnormalities 24 identified at that examination or selectively pick only normal findings. For example, Plaintiff 25 exhibited lumbar flexion ROM to 75 degrees,3 extension to 15 degrees,4 and lateral flexion to 20 26 27 3 Normal is 90 degrees. Range of Joint Motion Evaluation Chart (wa.gov) (available at 28 https://www.dshs.wa.gov/sites/default/files/forms/pdf/13-585a.pdf) 4 Normal is 25 degrees.

degrees5 bilaterally. AR 700. Reasonably commensurate with those limitations the ALJ limited 2 the RFC to occasional postural activities including stooping. As Plaintiff acknowledges, 3 subsequent follow-up visits noted stable examination findings, and that Dr. Parmar managed 4 5 Plaintiff’s narcotic medications and periodically administered injections. Br. at 4-5 (citing AR

6 669–690).

7 In addition, given the limited nature of the evidence supporting disabling limitations, the

8 ALJ had no obligation to further develop the record to rule out the possibility that a consultative

9 opinion would result in further reductions to Plaintiff’s RFC. Rather, Plaintiff simply did not meet 10 her burden of proof on this point. See Ukolov v. Barnhart,

(9th Cir. 2005) 11 (“The claimant carries the initial burden of proving a disability.”) (citation omitted); Matthews v. 12 13 Shalala,

(9th Cir. 1993) (“The mere existence of an impairment is insufficient 14 proof of a disability” because the “claimant bears the burden of proving that an impairment is 15 disabling”). 16 Plaintiff also questions the ALJ’s reasoning for discounting Plaintiff’s testimony as to her 17 pain, muscle weakness, and intolerances for extending sitting, standing, and walking, which she 18 testified caused her to stop working. Br. at 9-10. Here, the ALJ found that the objective evidence 19 occurring shortly after the expiration of her insured status (such as the imaging and examination 20 21 discussed above dated March and April 2017), would relate more to her functioning during the 22 relevant period as compared to her testimony several years later. AR 13. 23 As Plaintiff correctly observes, when the objective evidence corroborates some degree of 24 pain and limitation (as is unquestionably the case here), it need not necessarily corroborate the 25 degree of pain and limitation plaintiff alleges, and the ALJ cannot reject the alleged symptoms 26 solely based on the lack of objective support. Br. at 10 (citing Bunnell, 947 F.2d at 347–48; Garrison, 27 28 5 Normal is 25 degrees.

). However, it was not unreasonable for the ALJ to question the reliability of 2 Plaintiff’s recollection (as reported at the March 8, 2021 administrative hearing, AR 23–50) as to the 3 extent of her limitations during the relevant period four to seven years earlier.6 4 Further, as Defendant emphasizes, hearing counsel acknowledged that there were no 5

6 records available for review during the relevant period despite his attempt to obtain the same. AR

7 27–29. Hearing counsel further indicated he had discussed the same with the claimant and they

8 had nothing to add to the record other than the April 2017 radiology records.

It is not clear

9 whether the lack of records during the relevant period was due to their unavailability or due to the 10 lack of treatment. In either case, Plaintiff had the primary obligation to produce evidence 11 concerning her impairment. See Bowen v. Yuckert,

(1987) (“It is not 12 unreasonable to require the claimant, who is in a better position to provide information about his 13 14 own medical condition, to do so.”). 15 Plaintiff was however able to provide the April 10, 2017 radiology reports discussed above 16 (dated shortly after the expiration of Plaintiff’s insured status), and the ALJ admitted them into the 17 record as they had not yet been added to the record (and thus not yet reviewed by the agency’s 18 consultants at the initial and reconsideration levels). AR 27. No outstanding issues were identified 19 and the hearing proceeded. At the close of the hearing the ALJ stated “I have everything I need to 20 21 make my decision, so, I’ll issue it as soon as I can.” AR 49. All indications were that the ALJ 22 would then issue the decision based in part on the ALJ’s independent review of the radiology 23 records, which took place. 24 For the reasons explained above, no consultative expertise was needed to interpret those 25 radiology reports, nor the pain management records from the same time period. To the extent 26 27

28 6 The relevant period demarcated as the period between the February 15, 2014 alleged onset date and her date last insured of December 31, 2016. additional consultative review would have been impactful, a more appropriate time for Plaintiff to 2 have requested the ALJ for such review would have been at the hearing. 3 VI. Conclusion and Order 4 5 For the reasons stated above, the Court finds that substantial evidence and applicable law

6 support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, Plaintiff’s appeal from

7 the administrative decision of the Commissioner of Social Security is denied. The Clerk of Court

8 is directed to enter judgment in favor of Defendant Commissioner of Social Security and against

9 Plaintiff Michelle Renay Galindo. 10

11 IT IS SO ORDERED. 12

13 Dated: March 24, 2024 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28