Ryan Patrick Allen v. Nancy A. Berryhill, No. 5:2017cv02526 - Document 23 (C.D. Cal. 2019)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for payment of benefits or remand, and DISMISSING this action with prejudice. (See document for details.) (sbou)
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Ryan Patrick Allen v. Nancy A. Berryhill Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RYAN PATRICK A.,1 Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. EDCV 17-2526-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDNGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for supplemental security income (“SSI”). 21 The parties consented to the jurisdiction of the undersigned 22 under 28 U.S.C. § 636(c). 23 parties’ Joint Stipulation, filed August 16, 2018, which the 24 Court has taken under submission without oral argument. The matter is before the Court on the For the 25 26 27 28 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 reasons stated below, the Commissioner’s decision is affirmed. 2 II. BACKGROUND 3 Plaintiff was born in 1977. (Administrative Record (“AR”) 4 69.) 5 last worked as a “dry wall helper” and an “electrician helper” in 6 2004. 7 He completed high school and some college. (AR 51-52.) (AR 30, 41-43).2 On April 29, 2016, Plaintiff applied for SSI, alleging that 8 he had been unable to work since January 1, 2000, because of 9 “[a]rtificial hip — mass pain in back can’t walk,” stage-four 10 bone cancer, back pain, leg pain, hip pain, “[f]emur 11 [r]eplacement,” hip replacement, “[h]igh level of pain killer 12 impairs some mental function,” and “[h]igh pain levels causes 13 [sic] lack of sleep.” 14 denied initially (AR 80, 96-97) and on reconsideration (AR 93, 15 106-07), he requested a hearing before an Administrative Law 16 Judge (AR 112-13). 17 which he was represented by counsel and testified. 18 67-68.) 19 He (AR 69-70.) After his application was A hearing was held on February 8, 2017, at A vocational expert also testified. (AR 40-61, (AR 61-67.) In a written decision issued March 24, 2017, the ALJ found 20 Plaintiff not disabled since April 29, 2016, the application 21 date. 22 requested review from the Appeals Council (AR 160), which denied 23 it on July 6, 2017 (AR 5-7). (See AR 19, 31; see also generally AR 19-32.) Plaintiff This action followed. 24 25 26 27 2 28 2005. His earnings summary indicates he performed some work in (See AR 166). 2 1 III. STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner’s decision to deny benefits. The ALJ’s findings and 4 decision should be upheld if they are free of legal error and 5 supported by substantial evidence based on the record as a whole. 6 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 7 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 8 means such evidence as a reasonable person might accept as 9 adequate to support a conclusion. Substantial evidence Richardson, 402 U.S. at 401; 10 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 11 is more than a scintilla but less than a preponderance. 12 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 13 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 14 substantial evidence supports a finding, the reviewing court 15 “must review the administrative record as a whole, weighing both 16 the evidence that supports and the evidence that detracts from 17 the Commissioner’s conclusion.” 18 720 (9th Cir. 1998). 19 either affirming or reversing,” the reviewing court “may not 20 substitute its judgment” for the Commissioner’s. 21 IV. 22 It To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for purposes of receiving Social 23 Security benefits if they are unable to engage in any substantial 24 gainful activity owing to a physical or mental impairment that is 25 expected to result in death or has lasted, or is expected to 26 last, for a continuous period of at least 12 months. 27 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 28 1992). 3 42 U.S.C. 1 A. The Five-Step Evaluation Process 2 The ALJ follows a five-step sequential evaluation process to 3 assess whether a claimant is disabled. 4 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 5 1995) (as amended Apr. 9, 1996). 6 Commissioner must determine whether the claimant is currently 7 engaged in substantial gainful activity; if so, the claimant is 8 not disabled and the claim must be denied. 9 20 C.F.R. In the first step, the § 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful 10 activity, the second step requires the Commissioner to determine 11 whether the claimant has a “severe” impairment or combination of 12 impairments significantly limiting his ability to do basic work 13 activities; if not, the claimant is not disabled and his claim 14 must be denied. 15 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 16 impairments, the third step requires the Commissioner to 17 determine whether the impairment or combination of impairments 18 meets or equals an impairment in the Listing of Impairments set 19 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 20 disability is conclusively presumed. § 416.920(a)(4)(iii). 21 If the claimant’s impairment or combination of impairments 22 does not meet or equal an impairment in the Listing, the fourth 23 step requires the Commissioner to determine whether the claimant 24 has sufficient residual functional capacity (“RFC”)3 to perform 25 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see also Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and (continued...) 4 1 his past work; if so, he is not disabled and the claim must be 2 denied. 3 proving he is unable to perform past relevant work. 4 F.2d at 1257. 5 case of disability is established. § 416.920(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. 6 If that happens or if the claimant has no past relevant 7 work, the Commissioner then bears the burden of establishing that 8 the claimant is not disabled because he can perform other 9 substantial gainful work available in the national economy. 10 § 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. That determination 11 comprises the fifth and final step in the sequential analysis. 12 § 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 13 at 1257. 14 B. The ALJ’s Application of the Five-Step Process 15 At step one, the ALJ found that Plaintiff had not engaged in 16 substantial gainful activity since the application date, April 17 29, 2016. 18 severe impairments of “skeletal system sarcoma of the right hip 19 and femur,” “status post reconstructive surgery of the right hip 20 and femur,” “degenerative disc disease of the cervical spine,” 21 “lumbar spondylosis,” “ADHD,” “affective disorder,” and “anxiety 22 disorder.” 23 24 (AR 21.) At step two, she determined that he had (Id.) At step three, she found that Plaintiff’s impairments did not meet or equal a listing. (AR 21-23.) At step four, she 25 26 27 28 3 (...continued) four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 5 1 concluded that he had the RFC to perform “light work”4 with some 2 limitations: 3 Specifically, the claimant can lift and/or carry ten 4 pounds occasionally and ten pounds frequently; he can 5 push and/or pull as much as he can lift and/or carry; he 6 can sit for six hours in an eight[-]hour workday; he can 7 stand for four hours in an eight-hour workday; he can 8 walk for two hours in an eight-hour workday; he must have 9 a sit or stand option to perform work either sitting or 10 standing with no more that three position changes per 11 hour; he can occasionally climb ramps and stairs; he can 12 never 13 occasionally balance, stoop, kneel, crouch, and crawl; he 14 can never work at unprotected heights or with moving 15 mechanical parts; he can occasionally be exposed to 16 extreme cold or extreme heat; he can occasionally be 17 exposed to vibrations; he is limited to perform[ing] 18 simple and routine tasks; and, he would be absent from 19 work one day per month. climb ladders, ropes, or scaffolds; 20 (AR 23.) 21 Plaintiff could not perform his past relevant work. 22 he can Based on the VE’s testimony, the ALJ concluded that (AR 30.) At step five, she found that given Plaintiff’s age, 23 24 25 26 27 28 4 “Light work involves lifting no more than 20 pounds at time with frequent lifting or carrying of objects weighing up 10 pounds.” § 416.967; see also SSR 83-10, 1983 WL 31251, at (Jan. 1, 1983) (“[A] job is in this category when it requires good deal of walking or standing . . . [or] when it involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot controls, which require greater exertion than in sedentary work.”). 6 a to *5 a 1 education, work experience, and RFC, and “[b]ased on the 2 testimony of the vocational expert” (AR 31), he could perform at 3 least two representative jobs in the national economy: mail 4 clerk, DOT 209.687-026, 1991 WL 671813 (Jan. 1, 2016), and 5 marker, DOT 209.587-034, 1991 WL 671802 (Jan. 1, 2016). 6 Accordingly, she found him not disabled. 7 V. 8 9 (AR 31.) (Id.) DISCUSSION5 Plaintiff argues that the ALJ erred (1) in identifying two jobs at step five that allegedly conflicted with his RFC (J. 10 Stip. at 5-7, 11-12) and (2) in failing to order a consultative 11 examination to develop the record on his mental impairments (id. 12 at 12-15, 19-22). 13 A. 14 15 Remand Is Not Warranted Based on Harmless Error at Step Five Plaintiff contends that the ALJ failed to properly address 16 and resolve two conflicts between the VE’s testimony and the DOT 17 regarding the requirements of the jobs he was found able to 18 perform. 19 harmless error at step five, and remand is not necessary. (Id. at 5-7.) As explained below, the ALJ committed 20 21 22 23 24 25 26 27 28 5 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during his administrative proceedings. (See AR 37-68, 160); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also generally Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), pet. for cert. filed, __ U.S.L.W. __ (U.S. Feb. 22, 2019) (No. 18-1117). 7 1 2 1. Applicable law At step five, the Commissioner has the burden of showing the 3 existence of work in the national economy that the claimant can 4 perform, taking into account his age, education, and vocational 5 background. 6 2001). 7 existing in substantial numbers in the national economy that 8 claimant can perform despite his identified limitations.” 9 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 10 When a VE provides evidence at step five about the See Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. To meet this burden, the ALJ must “identify specific jobs 11 requirements of a job, the ALJ has a responsibility to ask about 12 “any possible conflict” between that evidence and the DOT’s job 13 description. 14 2000); Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th Cir. 2007) 15 (holding that application of SSR 00-4p is mandatory). 16 a conflict exists, the ALJ may accept VE testimony that 17 contradicts the DOT only if the record contains “persuasive 18 evidence to support the deviation.” 19 (citing Johnson, 60 F.3d at 1435); see also Tommasetti v. Astrue, 20 533 F.3d 1035, 1042 (9th Cir. 2008) (finding error when “ALJ did 21 not identify what aspect of the VE’s experience warranted 22 deviation from the DOT”). 23 “obvious or apparent” to require inquiry by the ALJ. 24 Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016); Massachi, 25 486 F.3d at 1154 n.19. 26 is at odds with DOT job requirements related to tasks that are 27 “essential, integral, or expected parts of a job.” 28 844 F.3d at 808. See SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, When such Pinto, 249 F.3d at 846 A conflict with the DOT must be See A conflict is obvious or apparent when it 8 Gutierrez, 1 Any error in failing to resolve a conflict with the DOT is 2 harmless if the ALJ has identified another job existing in 3 significant numbers that the Plaintiff could perform and as to 4 which there was no error. 5 1102, 1110 n.7 (9th Cir. 2017) (as amended Feb. 28, 2018). 6 a hypothetical includes all the claimant’s credible functional 7 limitations, an ALJ is generally entitled to rely on the VE’s 8 response to it. 9 Cir. 2002); see also Bayliss v. Barnhart, 427 F.3d 1211, 1218 See Shaibi v. Berryhill, 883 F.3d See Thomas v. Barnhart, 278 F.3d 947, 956 (9th 10 (9th Cir. 2005) (“A VE’s recognized expertise provides the 11 necessary foundation for his or her testimony.”). 12 13 2. When Relevant background The ALJ asked the VE to assume a hypothetical individual 14 with Plaintiff’s age, education, and work background, with the 15 following limitations: 16 [T]his individual can occasionally lift and carry [10 17 pounds and also 10 pounds frequently]. 18 can sit for up to six hours in an eight-hour day, stand 19 for up to four hours in an eight-hour day, walk for up to 20 two hours in an eight-hour day. However, this individual 21 requires a job that can be performed either sitting or 22 standing, but with no more than three position changes 23 per hour. This individual This individual is limited to occasional posturals 24 25 with the 26 scaffolds, which is precluded. 27 have 28 mechanical no exception exposure parts of to and climbing 9 no ropes and This individual should unprotected with ladders, heights more than or moving occasional 1 exposure to extreme cold, extreme heat or vibrations. 2 This individual is limited to performing simple, routine 3 tasks. 4 (AR 63-64.) 5 (AR 65.) 6 a “mail clerk . . . DOT 209.687-026,” 1991 WL 671813, or “marker 7 . . . DOT 209.587-034,” 1991 WL 671802. 8 confirmed that her testimony was “consistent with the [DOT]” 9 except that the latter did not include information concerning The individual would miss one day of work a month. The VE testified that such an individual could work as (AR 64-65.) The VE 10 absences, and she based that testimony on her more than 24 years 11 of experience in the field. 12 did not question the VE when given the opportunity. 13 3. 14 Plaintiff’s attorney (See AR 66.) Analysis a. 15 (AR 66-67.) Mail clerk Plaintiff correctly notes that work as a mail clerk, which 16 has a reasoning level of three,6 fails to meet the ALJ’s 17 limitation to “simple, routine tasks.” 18 23.) 19 limitation to simple, routine, or repetitive tasks . . . and the 20 demands of Level 3 reasoning.” 21 843-44 (9th Cir. 2015). 22 “reconcile the inconsistency” by “ask[ing] the expert to explain 23 the conflict” and then “determin[ing] whether the vocational (See J. Stip. at 5-7; AR Indeed, “there is an apparent conflict between [a] Zavalin v. Colvin, 778 F.3d 842, In such situations, the ALJ must 24 25 26 27 28 6 Level-three reasoning means that an individual must be able to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form” and “[d]eal with problems involving several concrete variables in or from standardized situations.” DOT, app. C, 1991 WL 688702 (4th ed. 1991). 10 1 expert’s explanation . . . is reasonable.” 2 omitted). Id. at 846 (citation 3 The VE failed to note, and the ALJ failed to address, the 4 conflict between the DOT description of the mail-clerk job and 5 Plaintiff’s limitation to simple and routine tasks. 6 generally AR 61-67.) 7 (See J. Stip. at 10-11.) 8 error was harmless in light of her alternative finding that 9 Plaintiff could perform the requirements of the marker job. (See Defendant apparently concedes the error. As explained below, however, the ALJ’s See 10 Shaibi, 883 F.3d at 1110 n.7 (finding harmless ALJ’s error in 11 failing to resolve conflict between job requiring level-three 12 reasoning and RFC limiting plaintiff to simple, repetitive tasks 13 because ALJ had found he could perform two other identified jobs 14 available in sufficient numbers); Revard v. Colvin, No. ED CV 12- 15 1386 MRW., 2013 WL 2045760, at *4 (E.D. Cal. May 13, 2013) 16 (finding harmless ALJ’s error in failing to resolve conflict 17 between mail-clerk job and RFC limiting plaintiff to simple tasks 18 because he could perform another identified job available in 19 national economy). 20 21 b. Marker Plaintiff argues that the DOT description for the marker job 22 conflicts with his RFC because some of its identified tasks are 23 not “routine.” 24 duties as follows: and (J. Stip. at 6-7, 12.) attaches 25 Marks 26 merchandise to record price and identifying information: 27 Marks 28 merchandise, or on price tickets. selling price price The DOT recounts “marker” by tickets hand 11 on to boxes articles of containing Ties, glues, sews, or 1 staples price ticket to each article. 2 plunger of mechanism that pins, pastes, ties, or staples 3 ticket to article. 4 articles marked and pack them in boxes. 5 printed price tickets with entries on purchase order to 6 verify accuracy and notify supervisor of discrepancies. 7 May print information on tickets, using ticket-printing 8 machine[.] 9 Presses lever or May record number and types of DOT 209.587-034, 1991 WL 671802. May compare The marker job requires 10 reasoning level two.7 11 temperament factor of “[a]ttaining precise set limits, 12 TOLERANCES, and standards.” 13 adaptability requirements made on the worker by specific types of 14 jobs.” 15 10–1 (1991).8 16 adjustments workers must make for successful job performance.” 17 Veal v. Soc. Sec. Admin., 618 F. Supp. 2d 600, 610 & n.24 (E.D. 18 Tex. May 21, 2009) (citing Revised Handbook 10–1). 19 20 Id. The DOT description for it lists the Id. “Temperaments . . . are the U.S. Dep’t of Labor, Revised Handbook for Analyzing Jobs They have been found to be “important to Plaintiff claims that the marker job’s inclusion of “the temperament to attain precise set limits, tolerances or 21 22 23 24 25 26 27 28 7 Level-two reasoning means that an individual must be able to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions” and “[d]eal with problems involving a few concrete variables in or from standardized situations.” DOT, app. C, 1991 WL 688702 (4th ed. 1991). 8 The Revised Handbook for Analyzing Jobs lists “11 [t]emperament factors identified for use in job analysis.” Revised Handbook 10-1. The marker job requires only two, one of which is not at issue here. 12 1 standards” conflicts with his RFC requirement that work be 2 “routine.” 3 the argument and fails to give any detail of the purported 4 conflict; indeed, he never even explains what the language in the 5 DOT means. 6 some guidance; it describes attaining precise set limits, 7 tolerances, and standards as “[i]nvolv[ing] adhering to and 8 achieving exact levels of performance, using precision measuring 9 instruments, tools, and machines to attain precise dimensions; (J. Stip. at 7.) (Id.) He cites no authority to support The Revised Handbook Analyzing Jobs provides 10 preparing exact verbal and numerical records; and complying with 11 precise instruments and specifications for materials, methods, 12 procedures, and techniques to attain specified standards.” 13 Revised Handbook 10-4. 14 barring fast-paced or production-quota work. 15 Comm’r of Soc. Sec., No.: 2:17-CV-403-FVS, 2019 WL 289811, at *7 16 (E.D. Wash. Jan. 22, 2019). 17 The temperament has been interpreted as see Sandra H. v. There is no obvious or apparent conflict between a 18 limitation to “routine” tasks and having the temperament to 19 attain precise set limits, tolerances, and standards; rather, 20 that language would conflict with an RFC barring fast-paced or 21 production-quota work, see id., which Plaintiff does not have. 22 In any event, the DOT description for marker lists such routine 23 tasks as attaching price tags, recording price information, and 24 verifying accuracy, DOT 209.587-034, 1991 WL 671802, all of which 25 are consistent with using tools, preparing numerical records, and 26 complying with methods and procedures to meet certain standards, 27 see Revised Handbook 10-4. 28 precise set limits, tolerances, and standards must be read in And the temperament for attaining 13 1 conjunction with the marker job’s need for only level-two 2 reasoning, which “specifically caveats that the instructions 3 would be uninvolved — that is, not a high level of reasoning.” 4 Meissl v. Barnhart, 403 F. Supp. 2d 981, 985 (C.D. Cal. 2005) 5 (citation omitted); see also id. at 983-85 (holding that 6 reasoning-level-two jobs are consistent with limitation to 7 “simple, repetitive” tasks). 8 Plaintiff could not perform work that was “essential, integral, 9 or expected” in the marker job. Thus, nothing indicates that Gutierrez, 844 F.3d at 808; see 10 also Blackmon v. Astrue, 719 F. Supp. 2d 80, 99 (D.D.C. 2010) 11 (rejecting argument that work requiring temperament to attain 12 precise set limits, tolerances, and standards was inconsistent 13 with limitation to “routine” work); Lewis v. Astrue, No. CV 08- 14 3823-JTL., 2009 WL 890724, at *8-9 (C.D. Cal. Mar. 31, 2009) 15 (finding that limitation to simple and repetitive work did not 16 prevent plaintiff from performing job that required attaining 17 precise set limits, tolerances, and standards). 18 was no obvious or apparent conflict between the VE’s testimony 19 and the DOT, there was nothing for the ALJ to reconcile, and she 20 was not required to question the VE about the purported 21 discrepancy. 22 Because there See Gutierrez, 844 F.3d at 807-08. Accordingly, the ALJ appropriately determined that Plaintiff 23 could perform the marker job, and any error as to the mail-clerk 24 position was harmless. 25 26 27 28 14 1 B. Plaintiff Has Forfeited His Claim that the ALJ Failed 2 to Properly Develop the Record, and No Manifest 3 Injustice Results from Failing to Consider It 4 Plaintiff claims that the ALJ should have ordered a 5 consultative examination concerning his mental symptoms because 6 the record was “woefully underdeveloped.” 7 Plaintiff has forfeited this claim, and in any event the ALJ 8 likely did not err. 9 10 1. (J. Stip. at 15.) Applicable law In Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as 11 amended), the Ninth Circuit held that “at least when claimants 12 are represented by counsel, they must raise all issues and 13 evidence at their administrative hearings in order to preserve 14 them on appeal” or those issues are forfeited. 15 claimant fails entirely to raise an issue before both the ALJ and 16 the Appeals Council, he “forfeits such a challenge on appeal, at 17 least when that claimant is represented by counsel.” 18 F.3d at 1109; see also Phillips v. Colvin, 593 F. App’x 683, 684 19 (9th Cir. 2015) (finding that “issue was waived9 by [claimant]’s 20 failure to raise it at the administrative level when he was 21 represented by counsel”). 22 23 Indeed, when a Shaibi, 883 Courts “will only excuse a failure to comply with this rule when necessary to avoid a manifest injustice[.]” Meanel, 172 24 25 26 27 28 9 Some of the cases refer to “waiver,” although the issue is actually forfeiture. See United States v. Scott, 705 F.3d 410, 415 (9th Cir. 2012) (“Waiver is the intentional relinquishment or abandonment of a known right, whereas forfeiture is the failure to make the timely assertion of that right.” (citation and alterations omitted)). 15 1 F.3d at 1115. “A manifest injustice is . . . an error in the 2 trial court that is direct, obvious, and observable[.]” 3 v. Berryhill, No. 1:15-cv-00510-EPG, 2017 WL 1709326, at *3 (E.D. 4 Cal. May 3, 2017) (citation omitted); see also Goodman v. Colvin, 5 No. CV–15–00807–PHX–JAT, 2016 WL 4190738, at *17–18 (D. Ariz. 6 Aug. 9, 2016) (no manifest injustice in forfeiture of claim when 7 plaintiff failed to question VE about conflicts between RFC 8 limitations and DOT); Hinkley v. Colvin, No. CV-15-00633-PHX-ESW, 9 2016 WL 3563663, at *10 n.7 (D. Ariz. July 1, 2016) (no manifest Sanchez 10 injustice in forfeiture of claim when plaintiff failed to 11 challenge weight ALJ gave medical assessment); cf. Jones v. 12 Colvin, No.: 2:15–cv–09489 KS, 2016 WL 4059624, at *3 & n.2 (C.D. 13 Cal. July 27, 2016) (finding manifest injustice when ALJ failed 14 to reconcile RFC with DOT job description because Ninth Circuit 15 had found “an apparent conflict between the [RFC] to perform 16 simple, repetitive tasks and the demands of Level Three 17 Reasoning” (citation omitted)). 18 2. 19 Analysis As Defendant argues (see J. Stip. at 15-16), Plaintiff never 20 raised the ALJ’s purported failure to develop the record 21 concerning his mental health during the administrative process. 22 He didn’t raise it at his hearing on February 8, 2017. 23 generally AR 39-68.) 24 his attorney if the record was complete, she responded that it 25 was. 26 issues were ancillary to his “main problem,” his hip, and that he 27 wouldn’t seek disability benefits based just on his mental 28 issues. (AR 39-40.) (AR 45.) (See To the contrary, when the ALJ twice asked Plaintiff himself testified that his mental After the hearing, Plaintiff’s attorney 16 1 confirmed in writing that she was seeking no additional 2 development of the record. 3 the issue with the Appeals Council. 4 always has been represented by counsel, his failure to raise the 5 issue during the administrative process forfeits his right to 6 make such a claim before this Court. 7 1109; Phillips, 593 F. App’x at 684. (AR 248.) Nor did Plaintiff raise (See AR 160.) As he is and See Shaibi, 883 F.3d at 8 Plaintiff contends that he has not forfeited the issue 9 because Meanel concerns statistical data provided by the VE and 10 is thus distinguishable. 11 however, as “[c]ourts in this circuit have applied Meanel in a 12 variety of factual contexts, including the waiver of an argument 13 that the mental health record should have been developed further 14 by the ALJ.” 15 3219437, at *14 (N.D. Cal. July 2, 2018) (holding plaintiff to 16 have waived that issue (citing Johnson v. Colvin, No. ED CV 17 15-02239 AFM, 2016 WL 4208434, at *3 (C.D. Cal. Aug. 8, 2016) 18 (relying on Meanel and holding that “[n]either Plaintiff nor his 19 counsel suggested that the ALJ . . . should send Plaintiff to a 20 mental evaluation, or should further develop the record in any 21 other way. 22 issue].”))); see also Shaibi, 883 F.3d at 1109 (finding Meanel 23 not limited to its facts). 24 25 (J. Stip. at 19-20.) He is mistaken, Redmond v. Berryhill, No. 17-cv-01603-DMR, 2018 WL As such, Plaintiff waived any arguments on [this Accordingly, Plaintiff has forfeited his claim that the ALJ should have developed the record concerning his mental health. 26 27 28 17 1 3. In any event, the ALJ was under no duty to further 2 develop the record, and no manifest injustice 3 requires reversal 4 Even if Plaintiff could properly raise the argument that the 5 ALJ had a duty to develop the medical record and order a 6 consultative examination (J. Stip. at 13-15, 20-22), it would 7 likely fail. 8 record” and “assure that [a] claimant’s interests are 9 considered.” An ALJ has a “duty to fully and fairly develop the Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 10 (9th Cir. 2014) (citation omitted); see also Howard ex rel. Wolff 11 v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“In making a 12 determination of disability, the ALJ must develop the record and 13 interpret the medical evidence.”). 14 the claimant’s burden to produce evidence in support of his 15 disability claim. 16 Cir. 2001) (as amended). 17 the record further is triggered only when there is ambiguous 18 evidence or when the record is inadequate to allow for proper 19 evaluation of the evidence.” 20 (9th Cir. 2011) (as amended) (citation omitted). 21 But it nonetheless remains See Mayes v. Massanari, 276 F.3d 453, 459 (9th Moreover, the “ALJ’s duty to develop McLeod v. Astrue, 640 F.3d 881, 885 Plaintiff claims that a consultative examination was 22 necessary because a “forensic description of [Plaintiff’s] 23 symptoms and limitations does not appear in the treating record 24 . . . [and] [t]hat type of highly technical or specialized 25 medical evidence is simply not available from the treating 26 source.” 27 inadequate about the record here, however, that demonstrated a 28 need for such “forensic” evidence. (J. Stip. at 15.) There was nothing ambiguous or 18 Rather, as the ALJ noted (AR 1 22), notes from Plaintiff’s visits to his treating psychiatrist 2 indicated that his mental impairments were not severely limiting 3 and were well controlled with medication. 4 (Aug. 9, 2016, “good effect” from medication), 279 (Dec. 22, 5 2015, seen for “[m]ild depressed feelings” and to get ADHD 6 medication that was “useful for him in the past”), 283 (July 30, 7 2015, “absence of depression” and some insignificant anxiety), 8 293 (Dec. 4, 2014, “[n]ot currently depressed and anxiety has not 9 been a problem”), 301 (June 24, 2014, “stable” mood, “[a]nxiety (See, e.g., AR 509 10 is not much of a problem,” and “[n]ot currently depressed”), 312 11 (Dec. 18, 2013, stable mood and concentration “OK”), 328 (June 12 20, 2013, had “done well” since last appointment and “mild 13 depression”), 333 (Oct. 3, 2012, “doing well since last 14 appointment” and “[m]ood stable without antidepressants”), 337 15 (May 22, 2012, “mood is stable currently”).) 16 Similarly, as the ALJ explained (AR 22), Plaintiff’s 17 testimony and treatment notes demonstrate that he was functioning 18 well, with at most moderate limitations resulting from his 19 psychiatric impairments. 20 disability period, he was able to attend college courses and 21 maintain good grades (AR 52-53); travel (AR 296, 299, 307, 330), 22 including a month spent in Europe with a friend (AR 58-59) and 23 other overseas trips (AR 296, 537, 541); drive (AR 51, 60, 494); 24 exercise regularly (AR 57, 285, 318); and do occasional grocery 25 shopping (AR 51). 26 to the physical-health consulting examiner (AR 494-95), and the 27 ALJ described him as “adher[ing] to proper hearing decorum” and 28 able to “respond to questions appropriately and without delay” (AR 21-23.) During the alleged He provided a detailed history of his ailments 19 1 while testifying (AR 22). 2 Plaintiff told one treating doctor during the alleged disability 3 period that he saw no benefit to working a low-paying job that 4 wouldn’t support his desired lifestyle of “put[ting] a lot of 5 time into music and working out.” 6 that his mental issues were not his “main problem” and wouldn’t 7 alone render him disabled. 8 9 Moreover, as the ALJ noted (AR 28), (AR 364.) And he testified (AR 45.) Thus, the ALJ had no duty to develop the record further. See Meltzer v. Colvin, No. CV 13-6164 AGR., 2014 WL 2197781, at 10 *4 (C.D. Cal. May 27, 2014) (finding that ALJ did not violate 11 duty to develop record by not ordering psychiatric consulting 12 examination because record was neither ambiguous nor inadequate 13 and showed that claimant’s schizophrenia “was stable and well 14 controlled by medication”); Walsh v. Astrue, No. EDCV 11-170 15 AGR., 2012 WL 425331, at *4 n.5 (C.D. Cal. Feb. 10, 2012) 16 (finding that ALJ did not violate duty to develop record by not 17 ordering psychiatric consulting examination or medical-expert 18 testimony because record was neither ambiguous nor inadequate and 19 ALJ thoroughly discussed “plethora” of mental-health records).10 20 21 22 23 24 25 26 27 28 10 In the final paragraph of Plaintiff’s reply argument, he claims without support that simply by filing this appeal he has somehow automatically challenged the ALJ’s credibility finding. (J. Stip. at 22.) Yet he never identified that as a separate issue, as many such disability plaintiffs routinely do. Because he “failed to argue this issue with any specificity in his briefing,” it is forfeited. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (failure to challenge ALJ’s adverse credibility finding forfeits claim (citing Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003) (noting that court “ordinarily will not consider matters on appeal that are not specifically and (continued...) 20 1 2 VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g),11 IT IS ORDERED that judgment be entered 4 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 5 request for payment of benefits or remand, and DISMISSING this 6 action with prejudice. 7 8 DATED: March 27, 2019 9 ______________________________ JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 (...continued) distinctly argued in an appellant’s opening brief”))). 11 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 21
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