Williams v. Bisignano

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 LAROYCE W., Case No.: 25-cv-02206-W-GC 14 Plaintiff, REPORT AND 15 v. RECOMMENDATION REGARDING PLAINTIFF’S MERITS BRIEF 16 FRANK BISIGNANO, Acting Commissioner of Social Security, 17 [ECF No. 10] Defendant. 18 19 20 This Report and Recommendation is submitted to the Honorable Thomas J. Whelan, 21 United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 22 73.2(d) of the United States District Court for the Southern District of California. 23 On August 26, 2025, Plaintiff LaRoyce W. (“Plaintiff”) filed a complaint pursuant 24 to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social 25 Security (the “Commissioner”) denying his application for a period of disability and 26 disability insurance benefits. (ECF No. 1.) 27 Now pending before the Court and ready for decision is Plaintiff’s merits brief. 28 (ECF No. 10.) The Commissioner filed an opposition (ECF No. 12), and Plaintiff filed a 1 reply (ECF No. 15). For the reasons set forth herein, the Court RECOMMENDS that 2 Plaintiff’s merits brief be DENIED, and that judgment be entered affirming the decision 3 of the Commissioner. 4 I. PROCEDURAL BACKGROUND 5 On or about July 28, 2023, Plaintiff filed an application for disability insurance 6 benefits under Title II of the Social Security Act, alleging disability beginning 7 October 1, 2016. (Certified Administrative Record [“AR”], at 199–208.) After his 8 application was denied initially and upon reconsideration (AR 78–82, 84–87), Plaintiff 9 requested an administrative hearing before an administrative law judge (“ALJ”) (AR 88– 10 89). An administrative hearing was held on April 15, 2025. (AR 28–58.) Plaintiff 11 appeared at the hearing with counsel, and testimony was taken from him, as well as from 12 a vocational expert (“VE”). (AR 28–58.) 13 As reflected in his May 1, 2025 hearing decision, the ALJ found that Plaintiff had 14 not been under a disability, as defined in the Social Security Act, from October 1, 2016, 15 the alleged onset date, through September 30, 2017, the date last insured. (AR 14–27.) 16 The ALJ’s decision became the final decision of the Commissioner on June 27, 2025, when 17 the Appeals Council denied Plaintiff’s request for review. (AR 1–6.) This timely civil 18 action followed. 19 II. SUMMARY OF THE ALJ’S FINDINGS 20 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 21 evaluation process. See 20 C.F.R. § 404.1520(a). At step one, the ALJ found that Plaintiff 22 had not engaged in substantial gainful activity during the period from his alleged onset date 23 of October 1, 2016, through his date last insured of September 30, 2017. (AR 19.) 24 At step two, the ALJ found that Plaintiff had the following medically determinable 25 impairments through the date last insured: migraine headaches; cervical and lumbar 26 degenerative disc disease; osteoarthritis of the bilateral hips; hyperlipidemia; obstructive 27 sleep apnea; post-traumatic stress disorder (“PTSD”); and major depressive disorder 28 (“MDD”). (AR 19.) Although the ALJ found that Plaintiff had these medically 1 determinable impairments, he found that, through the date last insured, Plaintiff did not 2 have an impairment or combination of impairments that significantly limited Plaintiff’s 3 ability to perform basic work-related activities for twelve consecutive months. (AR 20.) 4 Therefore, the ALJ found that Plaintiff did not have a severe impairment or combination 5 of impairments. (Id.) 6 As the ALJ determined that Plaintiff did not meet the requirements at step two, he 7 found that Plaintiff was not under a disability, as defined in the Social Security Act, at any 8 time from October 1, 2016, the alleged onset date, through September 30, 2017, the date 9 last insured. (AR 23.) 10 III. PLAINTIFF’S CLAIM OF ERROR 11 As reflected in Plaintiff’s merits brief, the disputed issue that Plaintiff is raising as 12 the ground for reversal and remand is that the ALJ erred by failing to develop the record 13 further and have a qualified psychiatrist or psychologist review the evidence. (ECF No. 10 14 at 3.) 15 IV. STANDARD OF REVIEW 16 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 17 determine whether the Commissioner’s findings are supported by substantial evidence and 18 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 19 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 20 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 21 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 22 “such relevant evidence as a reasonable mind might accept as adequate to support a 23 conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole 24 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529- 25 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 26 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 27 (9th Cir. 1984). 28 /// 1 V. DISCUSSION 2 A. ALJ’s Duty to Develop the Record 3 Plaintiff argues that remand is required because the ALJ failed to develop the record 4 by not having a qualified psychiatrist or psychologist review the evidence. (ECF No. 10 5 at 3.) Plaintiff claims that in cases involving mental impairments, the Commissioner must 6 have a qualified psychiatrist or psychologist review the record evidence and offer an 7 opinion on severity and listing level equivalence. (Id.) Additionally, Plaintiff asserts that 8 the ALJ concluded that the medical evidence at the hearing level was insufficient, but rather 9 than seek the opinion of an appropriate medical professional, the ALJ improperly relied on 10 his lay reading of the medical evidence. (Id. at 8.) 11 The Commissioner asserts issue-preclusion regarding the ALJ’s duty to further 12 develop the record because Plaintiff’s counsel affirmatively represented during the hearing 13 that the record was complete. (ECF No. 12 at 2.) The Commissioner further argues that 14 the Social Security Administration (“SSA”) made “every reasonable effort” under the 15 applicable regulation to ensure that a qualified psychiatrist or psychologist assessed the 16 record. (Id. at 2–3.) Additionally, the Commissioner claims that the ALJ here did not rely 17 on his lay interpretation of medical evidence but rather simply summarized the medical 18 evidence. (Id. at 3.) Finally, the Commissioner argues that there was substantial evidence 19 that supported the ALJ’s conclusion that Plaintiff did not have a severe mental impairment 20 prior to September 30, 2017. (Id. at 3–4.) 21 1. Relevant Facts 22 The record includes the opinions of two state agency psychological consultants, 23 K. Gregg, M.D., and S. Khan, M.D., who opined that there was insufficient evidence to 24 establish the presence of a mental impairment prior to Plaintiff’s date last insured. (AR 25 60–64, 66–-71.) At step two, the ALJ found Dr. Gregg and Dr. Khan’s “opinions 26 somewhat persuasive.” (AR 22.) The ALJ found that the evidence at the hearing level was 27 “more consistent with a finding that [Plaintiff’s] mental . . . impairments were non-severe 28 /// 1 through the date last insured, based upon [Plaintiff’s] limited treatment and mostly normal 2 findings upon examinations. (AR 22–23.) 3 At the administrative hearing, Plaintiff testified that he stopped working due to 4 worsening pain issues with his back and knees, and that he also had issues with his right 5 shoulder and wrist, along with mental health issues related to PTSD and MDD. (See AR 6 28–58.) Plaintiff did not testify as to the particular time period he experienced these issues. 7 (Id.) Plaintiff testified that his mental health could affect his ability to take care of himself 8 “because [he’s] a physical guy” and he was focused on the mental repercussions of “how 9 to deal with [his] [physical] pain.” (AR 51.) 10 Plaintiff’s medical record contains no files between October 1, 2016, and 11 September 30, 2017, showing that Plaintiff complained of or sought treatment for PTSD 12 or MDD. (See AR 307–907.) In December 2017, approximately two and a half months 13 after the date last insured, a care provider noted that Plaintiff had not been treated for PTSD 14 and MDD since 2015, which was prior to the alleged onset date. (AR 420.) That same 15 month, Plaintiff reported a good response from his prescribed Prazosin, which was 16 alleviating his mental health issues. (AR 881.) Also in December 2017, Plaintiff reported 17 that his “mood was depressed secondary to poor sleep (which he believe[d] will improve 18 once sleep clinic meets with him re: CPAP mask) and he declined appt. in Menta [sic] 19 Health.” (AR 421 (emphasis added).) Moreover, in a Function Report completed by 20 Plaintiff in January 2024, which was years after the date last insured, the claimant reported 21 that he lived alone, cared for his own personal hygiene, shopped for food, performed 22 household chores including laundry, drove a car, retained the ability to manage his own 23 money, read, watched movies, socialized with others on the phone, he was able to complete 24 tasks and follow instructions, and he got along with others. (AR 240–44.) 25 In the absence of any treatment or documentation of symptoms relating to Plaintiff’s 26 mental health conditions between October 1, 2016, and September 30, 2017, and based 27 upon Plaintiff’s more recent activities of daily living, the ALJ found that Plaintiff’s mental 28 health impairments caused no limitation in understanding, remembering, or applying 1 information, interacting with others, concentration, persistence or pace or adapting or 2 managing oneself during this period. (AR 22–23.) As a result, the ALJ found Plaintiff’s 3 impairments were non-severe during the relevant time period. (AR 23.) 4 2. Applicable Law 5 “[W]hen claimants are represented by counsel, they must raise all issues and 6 evidence at their administrative hearings in order to preserve them on appeal.”1 Meanel v. 7 Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). Courts “will only excuse a failure to comply 8 with this rule when necessary to avoid a manifest injustice.” Id. For example, “[w]here 9 claimants are not expected to develop certain issues in ALJ proceedings, it is generally 10 inappropriate to treat those issues as forfeited.”2 Carr, 593 at 89 n.3. Therefore, “the 11 ‘critical feature’ in the issue-exhaustion analysis is ‘whether claimants bear the 12 responsibility to develop issues for adjudicators’ consideration.’” Obrien v. Bisignano, 13 142 F.4th 687, 701 (9th Cir. 2025) (quoting Carr, 593 U.S. at 89). Thus, a district court 14 would not err in finding waiver where the alleged error was apparent at the time of the 15 hearing before the ALJ. Carr, 593 U.S. at 89 n.3 (reasoning that when claimants are 16 expected to develop issues during the ALJ proceeding, the “general rule” of issue- 17 exhaustion would apply) (quoting United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 18 33, 36–37 (1952)); Simpson v. Berryhill, 717 F. App’x 670, 673 (9th Cir. 2017). 19 /// 20 21 22 1 The Meanel issue-exhaustion rule controls “to the extent [it holds] that claimants 23 generally may not present new evidence [in federal court], and new issues dependent on that evidence, that they failed to present to the ALJ.” Obrien, 142 F.4th at 701; Shaibi v. 24 Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017) (finding Sims v. Apfel, 530 U.S. 103 (2000) 25 is not “clearly irreconcilable” with Meanel, and “Meanel therefore remains binding on this court with respect to proceedings before an ALJ.”). 26 2 The Supreme Court found that claimants are not expected to develop certain 27 constitutional challenges in ALJ proceedings, but “in the sphere of routine objections to individual benefits determinations, the scales might tip differently” regarding required 28 1 At the same time, the ALJ has a special duty to fully and fairly develop the record 2 and to ensure that the claimant’s interests are considered even when the claimant is 3 represented by counsel. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014); 4 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). “In cases of mental 5 impairments, this duty is especially important.” DeLorme v. Sullivan, 924 F.2d 841, 849 6 (9th Cir. 1991); Tonapetyan, 242 F.3d at 1150. However, it remains the claimant’s duty to 7 prove that he is disabled. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Tidwell 8 v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999); 20 C.F.R. § 404.1512(a) (“In general, you have 9 to prove to us that you are blind or disabled.”). The claimant must “furnish medical and 10 other evidence that [the ALJ] can use to reach conclusions about [the claimant’s] medical 11 impairments(s).” Mayes, 276 F.3d at 459 (quoting 20 C.F.R. § 404.1512(a)). An ALJ’s 12 duty to further develop the record is triggered only when there is ambiguous evidence or 13 when the record is inadequate to allow for proper evaluation of the evidence. Mayes, 276 14 F.3d at 459–60. 15 3. Analysis 16 Based on a review of the record, Plaintiff did not properly preserve for appeal his 17 challenge to the record as incomplete. Meanel, 172 F.3d at 1115. Plaintiff was represented 18 by counsel at the administrative hearing and his counsel expressly affirmed that 19 the record was complete.3 (AR 31–32.) Thus, any challenge on that basis is 20 21 22 3 “ALJ: Counsel, have you reviewed the record? 23 ATTY: I have, Your Honor. 24 ALJ: Is the record complete? 25 ATTY: Yes. 26 ALJ: All right. Let me look at the file. I have 1A through 4A. I have 1B through 16B, 1D through 10D, 1E through 12E, 1F through 5F. Last records 27 into the F Section on or about March 24th, 2025. Counsel, is that your 28 understanding of the record? 1 waived. See Gonzalez v. Kijakazi, No. 1:21-CV-01676-SKO, 2023 WL 6164086, at *5 2 (E.D. Cal. Sept. 21, 2023) (“because counsel stated that the record was complete, the 3 issue is not properly preserved for appeal”); Rivera v. O'Malley, No. 1:23-CV-00900-JLT- 4 BAM, 2024 WL 3498507, at *3 (E.D. Cal. July 22, 2024), report and recommendation 5 adopted sub nom. Rivera v. Dudek, No. 1:23-CV-0900 JLT BAM, 2025 WL 783203 (E.D. 6 Cal. Mar. 12, 2025) (“[b]ecause counsel confirmed that the record was complete, any 7 challenge on that basis is waived”); Karl v. Kijakazi, No. 1:21-cv-01576-SKO, 2023 WL 8 3794334, at *5 (E.D. Cal. June 1, 2023) (“issue is not properly preserved for appeal” 9 because counsel “expressly stated that the record was complete when asked by the ALJ”). 10 The “‘critical feature’ in the issue-exhaustion analysis is ‘whether claimants bear the 11 responsibility to develop issues for adjudicators’ consideration.’” Obrien, 142 F.4th at 701 12 (citations omitted). Here, Plaintiff bore the responsibility to prove his disability through 13 medical record and other evidence. Mayes, 276 F.3d at 459; Tidwell, 161 F.3d at 601. 14 Additionally, waiver may exist where the alleged error was apparent at the time of the 15 hearing before the ALJ. See Carr, 593 U.S. at 89 n.3; Simpson, 717 F. App’x at 673. 16 Plaintiff alleges that the ALJ failed to develop the record by not having a qualified doctor 17 review the evidence. (ECF No. 10 at 3.) However, this alleged failure would have been 18 apparent at the time of the hearing. Dr. Gregg and Dr. Khan opined there was insufficient 19 evidence in March 2024, over a year before the administrative hearing in April 2025. (AR 20 62–64, 68–71.) Therefore, the general rules of issue-exhaustion apply, and the Court finds 21 that Plaintiff has not properly preserved for appeal his challenge to the record as 22 /// 23 24 25 ATTY: That’s correct, Your Honor. 26 ALJ: All right. Any objections? 27 ATTY: No objections to any evidence in the file.” 28 (AR 31–32 (emphasis added).) 1 incomplete. Carr, 593 U.S. at 89 n.3; see L. A. Tucker Truck Lines, Inc., 344 U.S. at 36– 2 37; Meanel, 172 F.3d at 1115. 3 Even if Plaintiff had not waived the issue, Plaintiff has not demonstrated any error 4 warranting reversal and remand. The ALJ’s duty to further develop the record arises only 5 when the evidence is ambiguous or the record is inadequate to permit proper evaluation. 6 Mayes, 276 F.3d at 459–60. Plaintiff has not shown that the record was either ambiguous 7 or inadequate. The ALJ considered Plaintiff’s hearing testimony, summarized the state 8 agency psychological consultants’ findings, and evaluated the complete medical record. 9 (AR 17–23.) The record contained Plaintiff’s complete treatment records, as counsel 10 conceded at the hearing (see AR 31–32), and no gaps or inconsistencies were noted. See, 11 e.g., Findley v. Saul, No. 1:18-CV-00341-BAM, 2019 WL 4072364, at *6 (E.D. Cal. Aug. 12 29, 2019) (“The record contained what appears to be Plaintiff's complete treatment records, 13 which supported the ALJ’s findings and did not present an ambiguity or inadequacy. 14 Indeed, the Court notes that at the hearing, the ALJ asked Plaintiff's attorney if the record 15 was complete, and he responded, ‘It is indeed.’ . . . The Court therefore finds that the ALJ 16 was not obligated to further develop the record.”). Because the existing evidence was 17 sufficient to evaluate Plaintiff's claim, the ALJ was not required to further develop the 18 record or obtain a consultative examination. See Green v. Saul, No. 1:19-CV-00058-BAM, 19 2020 WL 1227895, at *7-9 (E.D. Cal. Mar. 13, 2020), adopted by2020 WL 3496998 (E.D. 20 Cal. June 29, 2020); Brown v. Berryhill, 697 F. App’x 548 (9th Cir. 2017); Diaz v. Comm'r 21 of Soc. Sec., No. 1:24-CV-00704-EPG, 2025 WL 2299515 (E.D. Cal. Aug. 8, 2025) 22 (collecting cases). 23 Plaintiff argues that in cases involving mental impairments, the Commissioner must 24 have a qualified psychiatrist or psychologist review the record evidence and offer an 25 opinion on severity and listing level equivalence. (ECF No. 10 at 3.) “Neither the Social 26 Security regulations, nor the applicable case law, require an ALJ to have the benefit of a 27 medical expert or consultative examination every time a mental impairment is at issue.” 28 Kenya B. v. Kijakazi, No. 21-CV-01371-JLB, 2023 WL 12264523, at *9 (S.D. Cal. Mar. 1 2023); 20 C_F.R. §§ 404.1520a—-1522. Additionally, Plaintiff argues that the ALJ 2 ||improperly relied on his lay reading of the medical evidence. (ECF No. 10 at 5.) The ALJ 3 ||did not rely on his “‘lay interpretation’ of medical evidence. Rather, the ALJ simply 4 ||/summarized the medical evidence . . .; []he did not interpret any . . . test results directly. 5 || ALJs need not seek the opinion of a medical expert every time they review new medical 6 |levidence.” Bufkin v. Saul, 836 F. App’x 578, 579 (9th Cir. 2021) (citing Vertigan v. Halter, 7 F.3d 1044, 1049 (9th Cir. 2001).) 8 || VI. CONCLUSION AND RECOMMENDATION 9 For the reasons set forth above, the Court RECOMMENDS that Plaintiff's merits 10 ||brief be DENIED, and that judgment be entered affirming the decision of the 11 ||Commissioner. 12 Any party having objections to the Court’s proposed findings and recommendations 13 || shall file specific written objections within 14 days after being served with a copy of this 14 Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections should be 15 || captioned “Objections to Report and Recommendation.” A party may respond to the other 16 || party’s objections within 14 days after being served with a copy of the objections. See id. 17 IT IS SO ORDERED. 18 || Dated: August 13, 2026 19 20 21 22 HorNGuillermo Cabrera United States Magistrate Judge 23 24 25 26 27 28