Bauman v. Kijakazi, No. 4:2020cv05228 - Document 23 (E.D. Wash. 2022)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ECF No. 20 and denying ECF No. 19 Plaintiff's Motion for Summary Judgment. File closed. Signed by Magistrate Judge James A. Goeke. (PH, Case Administrator)

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Bauman v. Kijakazi Doc. 23 Case 4:20-cv-05228-JAG ECF No. 23 filed 09/06/22 PageID.1093 Page 1 of 15 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Sep 06, 2022 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 No. 4:20-CV-05228-JAG HEATHER B., 9 Plaintiff, 10 v. 11 12 13 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY,1 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 14 Defendant. 15 16 17 18 19 20 21 22 BEFORE THE COURT are cross-motions for summary judgment. ECF No. 19, 20. Attorney Chad Hatfield represents Heather B. (Plaintiff); Special Assistant United States Attorney Benjamin Groebner represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 5. After reviewing the administrative record and the briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 23 24 25 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on 26 July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, 27 Kilolo Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No 28 further action need be taken to continue this suit. See 42 U.S.C. § 405(g). ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com Case 4:20-cv-05228-JAG 1 ECF No. 23 I. filed 09/06/22 PageID.1094 Page 2 of 15 JURISDICTION 2 Plaintiff filed applications for Disability Insurance Benefits and 3 Supplemental Security Income on January 11, 2018, alleging disability since 4 February 2, 2017, due to low back pain, fatigue, insomnia, headaches, 5 fibromyalgia, Ehlers-Danlos syndrome, left leg injury, cervical neuralgia, flat feet, 6 and anxiety. Tr. 131-32. The applications were denied initially and upon 7 reconsideration. Tr. 208-14, 217-24. Administrative Law Judge (ALJ) Jesse 8 Shumway held a hearing on March 18, 2020, Tr. 85-101, and issued an 9 unfavorable decision on April 2, 2020. Tr. 17-28. Plaintiff requested review by the 10 Appeals Council and the Appeals Council denied the request for review on 11 September 17, 2020. Tr. 1-6. The ALJ’s April 2020 decision became the final 12 decision of the Commissioner, which is appealable to the district court pursuant to 13 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on November 20, 14 2020. ECF No. 1. 15 16 II. STATEMENT OF FACTS Plaintiff was born in 1985 and was 31 years old as of the alleged onset date. 17 Tr. 131. She has a GED with some college courses, and has worked in the past in 18 sales, home care providing, housekeeping, waitressing, fast food, customer service, 19 and cashiering. Tr. 78-79, 310. She previously applied for disability benefits and 20 was denied by an ALJ in February 2017. Tr. 102-24. She has alleged disability 21 primarily based on pain, swelling in her feet, and migraines, resulting in pain and 22 distraction and causing her to miss work unpredictably. Tr. 90-100. 23 24 III. STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 25 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 26 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 27 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 28 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed ORDER GRANTING DEFENDANT’S MOTION . . . - 2 Case 4:20-cv-05228-JAG ECF No. 23 filed 09/06/22 PageID.1095 Page 3 of 15 1 only if it is not supported by substantial evidence or if it is based on legal error. 2 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 3 defined as being more than a mere scintilla, but less than a preponderance. Id. 4 at 1098. Put another way, substantial evidence is such relevant evidence as a 5 reasonable mind might accept as adequate to support a conclusion. Richardson v. 6 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 7 rational interpretation, the Court may not substitute its judgment for that of the 8 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 9 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 10 administrative findings, or if conflicting evidence supports a finding of either 11 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 12 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 13 supported by substantial evidence will be set aside if the proper legal standards 14 were not applied in weighing the evidence and making the decision. Brawner v. 15 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 16 IV. SEQUENTIAL EVALUATION PROCESS 17 The Commissioner has established a five-step sequential evaluation process 18 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 19 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 20 four the claimant bears the burden of establishing a prima facie case of disability. 21 Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes that 22 a physical or mental impairment prevents the claimant from engaging in past 23 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 24 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 25 the Commissioner to show (1) the claimant can make an adjustment to other work; 26 and (2) the claimant can perform specific jobs that exist in the national economy. 27 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 3 Case 4:20-cv-05228-JAG ECF No. 23 filed 09/06/22 PageID.1096 Page 4 of 15 1 a claimant cannot make an adjustment to other work in the national economy, the 2 claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 3 4 5 V. ADMINISTRATIVE FINDINGS On April 2, 2020, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. 6 At step one, the ALJ found Plaintiff had engaged in substantial gainful 7 activity at times during the relevant period, but found there was a continuous 8 12-month period during which Plaintiff had not engaged in substantial gainful 9 activity. Tr. 21. 10 At step two, the ALJ determined Plaintiff had the following severe 11 impairments: spinal disorder, ankle disorder, lower extremity vascular impairment, 12 Ehlers-Danlos syndrome, obesity, attention deficit disorder, affective disorder, 13 anxiety disorder, and substance use disorder. Tr. 22. 14 At step three, the ALJ found Plaintiff did not have an impairment or 15 combination of impairments that met or medically equaled the severity of one of 16 the listed impairments. Tr. 22. 17 18 19 20 21 22 23 24 25 26 27 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found she could perform sedentary work with the following additional limitations: She can stand and/or walk for 15 minute intervals, for a total of two hours in an eight-hour workday. She cannot climb ladders, ropes, or scaffolding. She cannot crawl or kneel. She can occasionally climb ramps and stairs. She can frequently balance, stoop, and crouch. She can frequently reach, handle, and finger. She can occasionally interact with the public. She can remember, understand, and carry out instructions generally required by occupations with a specific vocational preparation (SVP) of two or less. She can adjust to work setting changes generally associated with occupations with an SVP of two or less. Tr. 23. 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 4 Case 4:20-cv-05228-JAG 1 2 ECF No. 23 filed 09/06/22 PageID.1097 Page 5 of 15 At step four, the ALJ found Plaintiff was unable to perform any of her past relevant work. Tr. 27. 3 At step five, the ALJ found that, based on the testimony of the vocational 4 expert at the prior hearing, and considering Plaintiff’s age, education, work 5 experience, and RFC, Plaintiff was capable of performing jobs that existed in 6 significant numbers in the national economy, including the jobs of document 7 preparer, semi-conductor die loader, and semi-conductor wafer breaker. Tr. 28. 8 The ALJ thus concluded Plaintiff was not under a disability within the 9 meaning of the Social Security Act at any time from the alleged onset date through 10 the date of the decision. Id. 11 VI. 12 ISSUES The question presented is whether substantial evidence supports the ALJ’s 13 decision denying benefits and, if so, whether that decision is based on proper legal 14 standards. 15 Plaintiff contends the ALJ erred by (1) improperly invoking the presumption 16 of continuing non-disability; (2) failing to develop the record; (3) improperly 17 evaluating medical opinion evidence; (4) failing to find conditions severe at step 18 two; (5) failing to find Plaintiff disabled at step three; (6) improperly rejecting 19 Plaintiff’s subjective complaints; and (7) failing to conduct an adequate analysis at 20 step five. 21 22 23 VII. DISCUSSION A. Presumption of Continuing Non-Disability. Plaintiff previously applied for disability benefits in 2014 and was denied by 24 an ALJ in an unfavorable decision issued February 1, 2017. Tr. 102-24. This prior 25 unfavorable decision created a presumption of continuing non-disability, pursuant 26 to Chavez v. Bowen, 844 F.2d 691, 693-94 (9th Cir. 1988) and Acquiescence 27 Ruling 97-4(9). A claimant may overcome the presumption by showing changed 28 circumstances indicating a greater disability. Id. Throughout the decision, the ALJ ORDER GRANTING DEFENDANT’S MOTION . . . - 5 Case 4:20-cv-05228-JAG ECF No. 23 filed 09/06/22 PageID.1098 Page 6 of 15 1 found there was insufficient evidence to demonstrate a material change in 2 Plaintiff’s condition since the prior decision was issued. 3 Plaintiff argues the ALJ erred in applying the presumption, arguing updated 4 medical evidence establishes worsening of existing impairments, new impairments, 5 and contemporary medical source opinions, all constituting new and material 6 evidence of changed conditions. ECF No. 19 at 9-12. She points to evidence of 7 imaging studies and physical exams supporting her allegations of back pain, leg 8 swelling and decreased strength, and various other conditions. Id. Defendant 9 argues that Plaintiff’s review of the objective medical evidence does not 10 demonstrate that her conditions worsened in any way since the previous decision, 11 or that the ALJ’s findings and assessed limitations were inconsistent with the cited 12 evidence. ECF No. 20 at 3-4. 13 The Court finds the ALJ did not err. As Defendant argues, the existence of 14 objective evidence supportive of Plaintiff’s conditions does not indicate that her 15 conditions have worsened since the prior decision. The cited objective evidence 16 supports the ALJ’s findings that Plaintiff’s conditions continue to be severe 17 medically determinable impairments, but Plaintiff does not indicate how the 18 evidence compels a finding of worsening of those condition or greater functional 19 limitations to the point of rebutting the presumption of continuing non-disability 20 established by the prior unfavorable decision.2 The Court finds the ALJ did not err 21 in applying the presumption and adopting the relevant findings from the prior 22 decision. 23 24 25 26 2 Indeed, the imaging cited by Plaintiff as showing worsening of her back 27 condition, including possible nerve root encroachment, was actually from the 28 earlier time period. Tr. 442, 481. ORDER GRANTING DEFENDANT’S MOTION . . . - 6 Case 4:20-cv-05228-JAG 1 2 B. ECF No. 23 filed 09/06/22 PageID.1099 Page 7 of 15 Plaintiff’s Subjective Statements. Plaintiff alleges the ALJ improperly disregarded her subjective symptom 3 reports. ECF No. 19 at 19-20. It is the province of the ALJ to make determinations 4 regarding a claimant’s subjective complaints. Andrews v. Shalala, 53 F.3d 1035, 5 1039 (9th Cir. 1995). However, the ALJ’s findings must be supported by specific, 6 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the 7 claimant produces medical evidence of an underlying medical impairment, the ALJ 8 may not discredit testimony as to the severity of an impairment merely because it 9 is unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th 10 Cir. 1998). Absent affirmative evidence of malingering, the ALJ’s reasons for 11 rejecting the claimant’s testimony must be “specific, clear and convincing.” 12 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 13 821, 834 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must 14 identify what testimony is not credible and what evidence undermines the 15 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 16 918 (9th Cir. 1993). 17 As discussed above, the ALJ found there was no new and material evidence 18 of worsening of Plaintiff’s conditions, and that he was adopting the RFC from the 19 prior decision pursuant to Chavez v. Bowen and Acquiescence Ruling 97-4. Tr. 25. 20 The ALJ therefore noted that he was not required to make a new evaluation 21 regarding the consistency of Plaintiff’s complaints because that was a subordinate 22 finding encompassed by the prior RFC finding. Id. (citing AR 97-4 and HALLEX 23 I-5-4-60). However, the ALJ did note that Plaintiff’s reports of more swelling in 24 her ankles and feet were not consistent with the record, that her allegations of 25 disabling migraines were inconsistent with her minimal treatment for this condition 26 and infrequent contemporaneous reports to providers, and that her ability to engage 27 in college-level schoolwork and return to substantial gainful activity further 28 supported a finding that her functioning had not deteriorated. Id. ORDER GRANTING DEFENDANT’S MOTION . . . - 7 Case 4:20-cv-05228-JAG ECF No. 23 filed 09/06/22 PageID.1100 Page 8 of 15 1 Plaintiff argues the ALJ erred by simply adopting the prior findings, 2 reiterating the arguments she raised with respect to the presumption of continuing 3 non-disability. ECF No. 19 at 19-20. She further argues that the ALJ improperly 4 rejected Plaintiff’s reports on the basis of her activities, arguing that there was no 5 inconsistency between her accommodated work and her allegations. Id. Defendant 6 argues that the ALJ correctly found he was not required to make a finding 7 regarding Plaintiff’s reports, but that he nevertheless identified sufficient reasons 8 for discounting Plaintiff’s claims. ECF No. 20 at 13-16. 9 The Court finds the ALJ did not err. According to HALLEX I-5-4-60, when 10 the presumption of continuing non-disability is not rebutted, the ALJ need not 11 make “subordinate” findings regarding the reliability of a claimant’s reports. 3 As 12 discussed above, the ALJ reasonably found the presumption applied, and therefore 13 was correct that he was not required to make any further findings regarding 14 Plaintiff’s reports. Furthermore, the Court finds the ALJ’s additional rationale constituted clear 15 16 and convincing reasons for discounting Plaintiff’s reports. Unexplained or 17 inadequately explained reasons for failing to seek medical treatment can cast doubt 18 on a claimant’s subjective complaints. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 19 20 21 22 23 24 25 26 27 28 3 HALLEX I-5-4-60 reads in relevant part: In order to make certain “required” findings, adjudicators may make “subordinate” findings. For example, in making a “required” finding regarding RFC, an adjudicator may make a “subordinate” finding concerning credibility. Pursuant to the Chavez AR, an adjudicator reviewing a subsequent claim must adopt a prior finding regarding RFC or any other “required” finding unless there is new and material evidence relating to that finding, or there has been a change in the law, regulations, or rulings affecting a finding or the method for arriving at the finding. Absent such new and material evidence or changes in legal requirements, the question of making a “subordinate” finding regarding credibility does not arise. ORDER GRANTING DEFENDANT’S MOTION . . . - 8 Case 4:20-cv-05228-JAG ECF No. 23 filed 09/06/22 PageID.1101 Page 9 of 15 1 1989); Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996). The ALJ reasonably 2 found Plaintiff’s allegations regarding debilitating migraines were at odds with her 3 lack of treatment and infrequent contemporaneous reports of such problems in the 4 medical records. An ALJ may also consider a claimant’s activities in assessing the 5 reliability of their reports. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). While 6 Plaintiff’s school and work activities may not have indicated an ability to engage in 7 full-time competitive work, the ALJ’s interpretation of this evidence as 8 inconsistent with Plaintiff’s allegations of worsening conditions was a rational 9 interpretation. The Court finds the ALJ did not err in his assessment of Plaintiff’s 10 subjective reports. 11 C. 12 13 Opinion Evidence. Plaintiff alleges the ALJ erred by improperly rejecting the opinion from Nurse Practitioner Ashley Christensen. ECF No. 19 at 14-15. 14 For claims filed on or after March 27, 2017, new regulations apply that 15 change the framework for how an ALJ must weigh medical opinion evidence. 16 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 17 168819, 82 Fed. Reg. 5844 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. 18 The new regulations provide the ALJ will no longer give any specific evidentiary 19 weight to medical opinions or prior administrative medical findings, including 20 those from treating medical sources. 20 C.F.R. § 404.1520c(a). Instead, the ALJ 21 will consider the persuasiveness of each medical opinion and prior administrative 22 medical finding, regardless of whether the medical source is an Acceptable 23 Medical Source. 20 C.F.R. § 404.1520c(c). The ALJ is required to consider 24 multiple factors, including supportability, consistency, the source’s relationship 25 with the claimant, any specialization of the source, and other factors (such as the 26 source’s familiarity with other evidence in the file or an understanding of Social 27 Security’s disability program). Id. The regulations make clear that the 28 supportability and consistency of the opinion are the most important factors, and ORDER GRANTING DEFENDANT’S MOTION . . . - 9 Case 4:20-cv-05228-JAG ECF No. 23 filed 09/06/22 PageID.1102 Page 10 of 15 1 the ALJ must articulate how they considered those factors in determining the 2 persuasiveness of each medical opinion or prior administrative medical finding. 20 3 C.F.R. § 404.1520c(b). The ALJ may explain how they considered the other 4 factors, but is not required to do so, except in cases where two or more opinions 5 are equally well-supported and consistent with the record. Id. 6 Supportability and consistency are further explained in the regulations: 7 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 8 9 10 11 12 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 13 14 15 16 17 20 C.F.R. § 404.1520c(c). The Ninth Circuit has additionally held that the new 18 regulatory framework displaces the longstanding case law requiring an ALJ to 19 provide “specific and legitimate” or “clear and convincing” reasons for rejecting a 20 treating or examining doctor’s opinion. Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 21 2022). Following an ER visit for left foot swelling, which was diagnosed as an 22 23 ankle strain/sprain, NP Christensen complete a letter on January 5, 2020, excusing 24 Plaintiff from work for the next week, and stated: “No lifting. Elevation as much as 25 possible. Wear splint until seen for follow up. May attend her classes.” Tr. 935-40, 26 965. 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 10 Case 4:20-cv-05228-JAG 1 ECF No. 23 filed 09/06/22 PageID.1103 Page 11 of 15 The ALJ addressed this letter along with several others, noting the opinions 2 to be conclusory, only addressing temporary restrictions, and failing to identify any 3 specific objective findings to support releasing Plaintiff from work. Tr. 26. 4 Plaintiff argues the ALJ provided little more than boilerplate findings in 5 rejecting this opinion and argues that it supports Plaintiff’s reports of swelling in 6 her leg requiring her to elevate it as much as possible, which was not a temporary 7 restriction. ECF No. 19 at 14-15. Defendant argues the ALJ reasonably considered 8 the opinion and that his conclusion that it was a temporary restriction and without 9 explanation was supported by substantial evidence. ECF No. 20 at 11. Defendant 10 further notes that Plaintiff’s argument about her ongoing need to elevate her legs is 11 not supported by any medical opinions and notes that a few weeks after Ms. 12 Christensen’s opinion Plaintiff was released back to work with no restrictions. 13 Id. at 12. 14 The Court finds the ALJ did not err. Ms. Christensen’s opinion does not 15 contain any explanation for the assessed limits, and indeed does not even indicate 16 what diagnosis or dysfunction was the basis for the work release. Tr. 965. In 17 context with the treatment records, it is clear that the restrictions were intended to 18 be temporary, as Plaintiff was instructed on rest, ice, compression, and elevation 19 for the sprain, and was instructed to follow up with her primary physician or a 20 specialist if those measures did not help. Tr. 940. Plaintiff’s arguments regarding 21 her ongoing need to elevate her legs is not supported by this opinion, as it does not 22 indicate a long-term restriction and Ms. Christensen had no longitudinal treatment 23 relationship with Plaintiff. The ALJ’s assessment is supported by substantial 24 evidence. 25 D. 26 27 Step Two. Plaintiff argues the ALJ erred at step two by failing to find any new severe impairments since the prior decision, pointing to evidence of degenerative disc 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 11 Case 4:20-cv-05228-JAG ECF No. 23 filed 09/06/22 PageID.1104 Page 12 of 15 1 disease of the knees, occipital triggered migraines, SI joint arthritis, and lumbar 2 degenerative disc disease. ECF No. 19 at 15-16. 3 At step two of the sequential evaluation process, the ALJ must determine 4 whether the claimant has any medically determinable severe impairments. 20 5 C.F.R. § 404.1520(a)(ii). The impairment “must result from anatomical, 6 physiological, or psychological abnormalities that can be shown by medically 7 acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1521. 8 An impairment is “not severe” if it does not “significantly limit” the ability to 9 conduct “basic work activities.” 20 C.F.R. § 404.1522(a). Basic work activities are 10 “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1522(b). “An 11 impairment or combination of impairments can be found not severe only if the 12 evidence establishes a slight abnormality that has no more than a minimal effect on 13 an individual’s ability to work.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 14 1996) (internal quotation marks omitted). The claimant bears the burden of 15 demonstrating that an impairment is medically determinable and severe. Valentine 16 v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). 17 Plaintiff’s argument largely rests on the same arguments addressed above 18 with respect to the presumption of continuing non-disability. The Court finds 19 Plaintiff has not pointed to any additional evidence that indicates these 20 impairments caused more than a minimal limitation on her ability to engage in 21 work-related function, or were not already accounted for in the ALJ’s step two 22 findings and the RFC. 23 E. 24 25 26 Step Three. Plaintiff argues the ALJ erred at step three by failing to find her disabled under listing 1.02 or 1.04. ECF No. 19 at 16-19. At step three of the sequential evaluation process, the ALJ considers whether 27 one or more of the claimant’s impairments meets or equals an impairment listed in 28 Appendix 1 to Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). Each ORDER GRANTING DEFENDANT’S MOTION . . . - 12 Case 4:20-cv-05228-JAG ECF No. 23 filed 09/06/22 PageID.1105 Page 13 of 15 1 Listing sets forth the “symptoms, signs, and laboratory findings” which must be 2 established for a claimant’s impairment to meet the Listing. Tackett v. Apfel, 180 3 F.3d 1094, 1099 (9th Cir. 1999). If a claimant meets or equals a Listing, the 4 claimant is considered disabled without further inquiry. 20 C.F.R. § 404.1520(d). 5 Plaintiff again asserts the ALJ’s analysis was faulty based on his failure to 6 find no new and material evidence to rebut the findings of the prior unfavorable 7 decision. ECF No. 19 at 17. She asserts the new imaging shows potential nerve 8 root impingement, satisfying the requirements of Listing 1.04, and that new 9 evidence of her slow/antalgic gait indicated the functional requirements of Listing 10 1.02 and 1.04 were met. Id. at 17-19. Defendant argues Plaintiff has not presented 11 evidence that her conditions meet all the elements of any listing. ECF No. 20 12 at 6-7. 13 The Court finds the ALJ did not err. As has been discussed throughout this 14 order, the ALJ did not err in finding the presumption of continuing non-disability 15 applied. Furthermore, Plaintiff has not indicated how each of the elements of the 16 Listings are met. The burden of proof is on the claimant to establish she meets or 17 equals any of the impairments in the Listings. See Tackett, 180 F.3d at 1098. The 18 ALJ did not err in adopting the findings of the prior unfavorable decision and in 19 finding Plaintiff was not disabled at step three. 20 F. Development of the Record. 21 Plaintiff argues the ALJ erred in failing to call a medical expert to testify at 22 the hearing, noting the ALJ made errors in evaluating Plaintiff’s leg swelling and 23 her need to elevate her legs. ECF No. 19 at 12-14. Plaintiff asserts a medical expert 24 would have testified regarding how Plaintiff’s adherence to treatment could reduce 25 her swelling, and argues that the need to elevate her legs would make her unable to 26 sustain competitive work, something a vocational expert would have testified to. 27 Id. Defendant argues the decision to call a medical expert is entirely discretionary, 28 so the ALJ did not err in failing to have a medical expert testify. ECF No. 20 ORDER GRANTING DEFENDANT’S MOTION . . . - 13 Case 4:20-cv-05228-JAG ECF No. 23 filed 09/06/22 PageID.1106 Page 14 of 15 1 at 8-9. Defendant further argues the ALJ did not err in relying on the testimony of 2 the vocational expert from the 2016 hearing, as Plaintiff’s RFC and other 3 employment-related factors had not changed. Id. The obligation to develop the record “is triggered only when there is 4 5 ambiguous evidence or when the record is inadequate to allow for proper 6 evaluation of the evidence.” Ford v. Saul, 950 F.3d 1141 (9th Cir. 2020); Mayes v. 7 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Plaintiff has advanced no 8 argument that the record was ambiguous or inadequate in some way, and the Court 9 finds the ALJ relied on substantial evidence in making his findings. While Plaintiff 10 advocates for additional testimony, she has not pointed to any legal authority that 11 indicates such testimony was required. The Court finds the ALJ did not err. 12 G. Step Five. 13 Plaintiff argues that the ALJ erred in his step five determination because the 14 vocational testimony was premised on an incomplete hypothetical stemming from 15 an inaccurate residual functional capacity determination. ECF No. 19 at 20-21. 16 Plaintiff’s argument is based on successfully showing that the ALJ erred in his 17 evaluation of Plaintiff’s reports and the medical opinions or at one of the other 18 steps of analysis. Id. Because the Court finds that the ALJ did not harmfully err in 19 his assessment of the evidence, Plaintiff’s argument is without merit. VII. CONCLUSION 20 21 The Court has reviewed the record and the ALJ’s findings and the Court 22 finds the ALJ’s decision is supported by substantial evidence and free of legal error 23 and is affirmed. Therefore, IT IS HEREBY ORDERED: 24 25 26 1. Defendant’s Motion for Summary Judgment, ECF No. 20, is GRANTED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 19, is DENIED. 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 14 Case 4:20-cv-05228-JAG 1 ECF No. 23 filed 09/06/22 PageID.1107 Page 15 of 15 The District Court Executive is directed to file this Order and provide a copy 2 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 3 and the file shall be CLOSED. 4 DATED September 6, 2022. 5 6 7 _____________________________________ JAMES A. GOEKE UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 15

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