Opinion
1:23-cv-01373-SKO
08-28-2024
MELISSA ANN OROZCO, Petitioner, v. MARTIN O'MALLEY, COMMISSIONER OF SOCIAL SECURITY, [1]Defendant.
ORDER ON PLAINTIFF'S SOCIAL SECURITY COMPLAINT
(DOC. 1)
SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
Plaintiff Melissa Orozco (“Plaintiff”') seeks judicial review of a final decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). (Doc. 1). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.
The parties have consented to the jurisdiction of the U.S. Magistrate Judge. (See Doc. 10).
II. BACKGROUND
Plaintiff was born on August 26, 1970 (Administrative Record (“AR”) 245). Plaintiff filed a claim for DIB on October 19, 2021, alleging a disability onset date of February 1, 2020. (AR 25). Plaintiff subsequently amended her onset date to October 19, 2021. (AR 47). In her application, she alleged disability based on her congestive heart failure, diabetes, and high blood pressure. (AR 238). Plaintiff has an eighth-grade education. (AR 49). Plaintiff's most recent work history includes experience as a fieldworker. (AR 239).
A. Relevant Medical Evidence of Record
Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the contested issues.
Because this case centers on Plaintiff's need for an ambulative device, only evidence relevant to this issue is summarized here. At the hearing, Plaintiff testified that her shortness of breath led her to fall “many times,” as she gets tunnel vision before waking up on the floor. (AR 52-53). She testified that in the year before her hearing, she fell nine times and she had been prescribed a walker, but she can only walk “so far.” (AR 53).
Plaintiff has summarized much medical history that is not relevant to her claim. Further, because SSI are only available from the month after the month Plaintiff filed her application, and Plaintiff amended her alleged onset date to October 2021, the Court has omitted any medical history outside the relevant time period. See 20 C.F.R. §§ 416.335, 416.501; see also Thomas v. Berryhill, No. 1:16-cv-01337-JLT, 2018 WL 534012, at *5-6 (E.D. Cal. Jan. 24, 2018) (where “the application currently before the Court was for SSI benefits . . . [the] application date began the relevant time period”).
Plaintiff reported chest pain and mild shortness of breath on October 13, 2021 (AR 418), but her physical exam was unremarkable. (AR 410). Shahzeb Nadeem, M.D., diagnosed Plaintiff with cardiomyopathy (AR 420), though a cardiologist later suggested the pain in her chest and shoulder was related to a shoulder sprain, as opposed to any cardiac issue. (AR 422). Respiratory and pulse oximetry findings were normal. (AR 460). At a December 3, 2021, appointment, Plaintiff denied shortness of breath, and on examination, her lungs and heart were normal. (AR 503-04). Treatment notes indicate her musculoskeletal findings were normal, aside from pain in her left shoulder. (AR 503-04).
Plaintiff presented to the ER on January 1, 2022, with nausea, vomiting, and dizziness. (AR 556). She could move all extremities equally (AR 557), and there were no abnormal cardiovascular findings. (AR 557). Plaintiff tested positive for Respiratory Syncytial Virus (“RSV”) which providers noted explained some of her symptoms. (AR 558). She was prescribed Zofran, Meclizine, and Norco. (AR 558). At a follow-up on January 6, 2022, Plaintiff again reported episodes of intermittent dizziness, but denied any shortness of breath. (AR 507, 509). At a February 16, 2022, appointment, Plaintiff's doctor reported her gait was “impaired due to discomfort.” (AR 523).
Plaintiff again reported dizziness and shortness of breath on June 9, 2022. (AR 788-89). Because of Plaintiff's “occasional episodes of dyspnea,” Dr. Nadeem ordered a chest x-ray, which demonstrated normal findings and no acute disease. (AR 790, 810). On September 13, 2022, Plaintiff reported she was suffering from pain in her back and thighs, which resulted in “heaviness” in her legs. (AR 662). As a result, Plaintiff reported two episodes where her legs “gave out” and she fell to her knees. (AR 662). The doctor prescribed physical therapy twice a week for six weeks, and the physical therapist noted that she had a “good prognosis for meeting problems list[ed] based on current findings coupled with pre-existing conditions.” (AR 664). At a September 12, 2022, appointment, Plaintiff reported that her pain was a 10 out of 10 on the pain scale, and her physical therapist noted she had a major loss in her range of motion in her lumbar spine. (AR 662). At her October 26, 2022, appointment, Plaintiff reported “feeling good”, and was able to tolerate therapy with “no break, minimal fatigue.” (AR 660). Plaintiff attended physical therapy in September and October but canceled or failed to show up to her later appointments. (AR 648).
On November 1, 2022, Plaintiff requested a walker “due to her shortness of breath and gait instability” during a virtual healthcare visit, but she denied any other acute concerns besides the continuing pain in her shoulder. (AR 746, 748). Because the visit was virtual, healthcare providers were unable to perform a physical exam. (AR 748). Dr. Nadeem assessed that Plaintiff had “unspecified abnormalities of gait and mobility.” (AR 748). He ordered a screening for respiratory tuberculosis, and initiated the process for Plaintiff to receive “DME [durable medical equipment],” a walker. (AR 748).
On December 26, 2022, Plaintiff reported that the night before, she lost consciousness while running after her grandson. (AR 696). Her examination, however, revealed normal respiratory, cardiovascular, musculoskeletal, and neurological findings and full strength in all of her extremities. (AR 696-97). A pulse oximetry test showed 93% oxygen saturation, which was described as “normal,” though her oxygen saturation decreased to 91% with some exertion. (AR 697). Plaintiff was otherwise not in acute distress, and treatment notes have no mention of an assistive device. (AR 696-702).
On January 6, 2023, Plaintiff reported significant difficulty with walking and that she was unable to walk prolonged distances without becoming short of breath. (AR 726). Her doctor opined her symptoms were likely related to congestive heart failure (“CHF”) and chronic obstructive pulmonary disease (“COPD”). (AR 729). Plaintiff again reported shortness of breath and nausea at a January 21, 2023, appointment. (AR 724). A February 2023 discharge summary indicates that Plaintiff was prescribed a four-wheel walker for ambulation, though there are no other details related to the walker listed in the summary. (AR 63-65).
B. Opinion Evidence
State agency medical consultant M. Mazuryk, M.D., reviewed Plaintiff's file initially on November 30, 2021. (AR 76-77, 81-83). Dr. Mazuryk concluded that Plaintiff could lift and carry 50 pounds occasionally and 25 pounds frequently; she could sit for six hours and stand/walk for six hours in an eight-hour workday; she could frequently climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; and she could occasionally climb ladders, ropes, or scaffolds. (AR 8183). State agency medical consultant, A. Nasrabadi, M.D., reviewed Plaintiff's file on reconsideration of her claim, which included updated records. (AR 94-95, 100-02). Dr. Nasrabadi ordered an echocardiogram to assess Plaintiff's cardiac functioning. (AR 95, 541-46). After receiving this report, Dr. Nasrabadi found that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; she could sit for six hours and stand/walk for six hours in an eight-hour workday; she could frequently balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, or scaffolds; and she should avoid concentrated exposure to workplace hazards. (AR 95, 100-02).
C. The ALJ's Decision
Plaintiff filed a claim for DIB on October 19, 2021, alleging a disability onset date of February 1, 2020. (AR 25). The Commissioner denied Plaintiff's application initially on January 13, 2022, and again upon reconsideration on May 26, 2022. (AR 111-15; 119-24). Plaintiff requested a hearing before an Administrative Law Judge (an “ALJ”), and the parties attended a hearing on January 4, 2023. (AR 25). At the hearing, Plaintiff amended her alleged disability onset date to October 19, 2021. (AR 47). In a decision dated March 10, 2023, the ALJ found that Plaintiff was not disabled as defined by the Act after conducting the five-step disability analysis set forth in 20 C.F.R. § 404.1520. (AR 37).
At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since October 19, 2021 (step one). (AR 27). At step two, the ALJ found Plaintiff suffers from the following severe impairments: obesity; congestive heart failure; cardiomyopathy; cardiomegaly; benign essential hypertension; thoracic, thoracolumbar and lumbosacral disc disorder; polysubstance abuse involving methamphetamine, benzodiazepine, and amphetamine; alcohol use disorder (20 CFR 416.920(c)). (AR 27). Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 2630
The ALJ then assessed Plaintiff's residual functional capacity (RFC) and applied the assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, we assess your residual functional capacity . . . . We use this residual functional capacity assessment at both step four and step five when we evaluate your claim at these steps.”). The ALJ found Plaintiff could perform the following:
RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an individual's medically determinable impairment or combination of impairments. Id. “In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.'” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
light work as defined in 20 CFR 416.967(b) except she can frequently balance, stoop, kneel, crouch, or crawl, can frequently climb stairs or ramps, can never
climb ladders, ropes or scaffolds, can occasionally be exposed to vibrations, can never be exposed unprotected heights or moving machinery parts and can have occasional exposure to atmospheric conditions, as defined in the DOT and SCO, such as dust, noxious odors or fumes, or poor ventilation.(AR 31).
At steps four, the ALJ found that Plaintiff had no past relevant work, and therefore, the transferability of job skills was not at issue. (AR 34-35). Considering Plaintiff's age, education, work experience, and residual functional capacity, the ALJ found there were jobs that exist in significant numbers in the national economy that Plaintiff could perform. (AR 36). The ALJ based this finding on the testimony of the Vocational Expert (“VE”), who testified at Plaintiff's hearing that he could perform the following jobs: Cleaner/Housekeeper (Dictionary of Occupational Titles (“DOT”) 323.687-014)); Marker (DOT 209.587-034); and Routing Clerk (DOT 222.687-022) (AR 36). The ALJ concluded Plaintiff was not disabled under the Social Security Act. (AR 37).
Plaintiff sought review of this decision before the Appeals Council, which denied review on April 26, 2023. (AR 11-16). Therefore, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981.
III. LEGAL STANDARDS
A. Applicable Law
An individual is considered “disabled” for purposes of disability benefits if he or she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, “[a]n individual shall be determined to be under a disability only if [their] physical or mental impairment or impairments are of such severity that he is not only unable to do [their] previous work but cannot, considering [their] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
“The Social Security Regulations set out a five-step sequential process for determining whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided the following description of the sequential evaluation analysis:
In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing [their] past relevant work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled.Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled' or ‘not disabled' at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520).
“The claimant carries the initial burden of proving a disability in steps one through four of the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). “However, if a claimant establishes an inability to continue [their] past work, the burden shifts to the Commissioner in step five to show that the claimant can perform other substantial gainful work.” Id. (citing Swenson, 876 F.2d at 687).
B. Scope of Review
“This court may set aside the Commissioner's denial of [social security] benefits [only] when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence . . . is ‘more than a mere scintilla,'” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020).
“This is a highly deferential standard of review . . . .” Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ's findings will be upheld if supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner.” (citations omitted)).
Nonetheless, “the Commissioner's decision ‘cannot be affirmed simply by isolating a specific quantum of supporting evidence.'” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).
Finally, courts “may not reverse an ALJ's decision on account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record that ‘the ALJ's error was inconsequential to the ultimate nondisability determination.'” Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted).
IV. DISCUSSION
Plaintiff contends, inter alia, that the ALJ's RFC determination is not supported by substantial evidence because the ALJ failed to account for Plaintiff's need for an assistive device for ambulation in her RFC. For the following reasons, the Court concludes the ALJ did not err.
A. Legal Standard
An RFC is “an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.” Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *1 (1996); see also 20 C.F.R. § 416.945(a). It reflects the most that a claimant can do despite their limitations. SSR 96-8p, 1996 WL 374184, at *1. In formulating the RFC, the ALJ must account for all the claimant's medically determinable impairments, including those that are not “severe,” and evaluate “all of the relevant medical and other evidence.” 20 C.F.R. § 416.945(a); see also Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (holding that “an RFC that fails to take into account a claimant's limitations is defective”). Therefore, an ALJ errs when they provide an incomplete RFC ignoring “significant and probative evidence.” Hill v. Astrue, 698 F.3d 1153, 1161-2 (9th Cir. 2012).
An RFC assessment is ultimately an administrative finding reserved to the Commissioner. 20 C.F.R. § 416.946. The RFC does not need to directly correspond to a specific medical opinion; rather, “the ALJ is responsible for translating and incorporating clinical findings into a succinct RFC.” Rounds v. Comm'r of Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015); see also Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (noting the ALJ's responsibility to weigh conflicting medical evidence and translate accepted medical opinions into “concrete restrictions”). “ALJs are, at some level, capable of independently reviewing and forming conclusions about medical evidence to discharge their statutory duty to determine whether a claimant is disabled and cannot work.” Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022) (citing Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998)). The ALJ's RFC assessment should be affirmed if the ALJ has applied the proper legal standard and their decision is supported by substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
Claimants carry the burden of proving they are disabled. 20 C.F.R. § 404.1512(a). However, “Social Security proceedings are inquisitorial rather than adversarial.” Schiaffino v. Saul, 799 Fed.Appx. 473, 476 (9th Cir. 2020) (quoting Sims v. Apfel, 530 U.S. 103, 111-12 (2000)). An ALJ has a responsibility to develop a “complete medical history” and to “make every reasonable effort to help [the plaintiff] get medical reports.” 20 C.F.R. § 404.1512(d). “The ALJ always has a ‘special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'” Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)).
The ALJ is not a mere umpire at such a proceeding . . . . it is incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts. He must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.Id. (quoting Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 1992)). However, the duty to develop the record further is only triggered when there is ambiguous evidence or the record does not allow for proper evaluation of the evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The ALJ's duty to develop the record fully is heightened when a claimant is mentally ill and unable to protect his or her own interests. Id. If the record includes “specific and sufficient” evidence to evaluate a claim, the record is neither ambiguous nor inadequate. Gurin v. Saul, 842 Fed.Appx. 45, 48 (9th Cir. 2021). An ALJ may discharge their duty by subpoenaing claimant's doctors, submitting questions to claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record. Tonapetyan, 242 F.3d at 1150.
B. Analysis
In his decision related to Plaintiff's need for an assistive device, the ALJ stated the following:
As you can plainly see, I have not included any limitation that the claimant was required to use any assistive device, including a walker. I find that the objective medical findings do not support the medical necessity of any assistive device, whether it be a cane, walker, wheelchair or motorized scooter. The claimant's testimony is simply not supported by the record. During a tele-visit on November 1, 2022, the claimant requested a walker due to shortness of breath and gait instability (14F/29). Based upon the claimant's request, Dr. Shahzeb Nadeem, placed an order for a walker (14F/31-32). Dr. Shahzeb Nadeem never conducted a physical examination of the claimant in order to determine whether a walker was medically necessary. On December 23, 2022, Dr. Shahzeb Nadeem examined the claimant in-person and noted that the claimant was alert and in no acute distress (14F/16). The claimant's lung and heart exam were unremarkable (14F/16). Dr. Shahzeb Nadeem's report does not identify any objective findings to support the need for an assistive device, for example, muscle atrophy, loss of strength, loss of sensation or reflexes, or problems with balance and coordination. Moreover, Dr. Shahzeb Nadeem does not comment on the claimant's gait (14F/14-18). During a tele-visit on January 6, 2023, Dr. Shahzeb Nadeem informed the claimant of the results of the recent imaging, stating that there was “no evidence for focal disc herniation, significant thecal saturation, significant central or foraminal
stenosis…” and “that MRI did not reveal anything significant in regards to her symptoms.” (14F/12).
Additionally, on December 26, 2022, approximately 8 weeks after requesting a walker, the claimant was seen at the emergency room and furnished a history that she “was running after her grandson last night when she lost consciousness.” (13F/1). The hospital staff performed a physical examination of the claimant, which revealed, among other findings, 5/5 strength in the upper and lower extremities, intact sensation, full range of motion of the upper and lower extremities and no swelling or tenderness of the joints (13F/2).
Accordingly, I find that the claimant's use of an assistive is not supported by the record. Moreover, I find that there is no evidence that the claimant would require the use of an assistive device for a period of 12 months or more.(AR 35).
Plaintiff contends the ALJ erred by finding an assistive device was not medically necessary because Dr. Nadeem had prescribed one. (Doc. 15 at 9). The use of a hand-held assistive device is a functional limitation only if it is medically required. See SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996). To find that a hand-held assistive device is medically required, the ALJ must identify “medical documentation” that (1) establishes the need for a device and (2) “describe[es] the circumstances for which it is needed.” SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996); see also Dean N. v. Saul, 2020 WL 430962, at *2 (C.D. Cal. Jan. 28, 2020) (“Plaintiff was required to establish both need and the specific circumstance in which he needs the cane before the ALJ could include the usage of a cane in his RFC.”). For instance, medical documentation might describe whether a claimant requires the device “all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information.” SSR 969p, 1996 WL 374185, at *7. A claimant's own testimony does not establish the need for an assistive device. Marin v. Astrue, 2012 WL 5381374, at *4 (C.D. Cal. Oct. 31, 2012) (finding ALJ “justifiably concluded that plaintiff's use of a cane did not warrant a more limited RFC” where only plaintiff's own testimony corroborated her use of a cane).
Plaintiff has not established an assistive device was medically necessary. At most, Plaintiff has put forth evidence that Dr. Nadeem prescribed Plaintiff a walker, and assuming this amounts to a demonstration that Plaintiff needed such a device, Plaintiff has still not provided medical evidence establishing the circumstances for which it is needed, which precludes a finding that it is medically necessary. See Downyell, J. v. Kijakazi, 2022 WL 971335, at *4 (C.D. Cal. Mar. 31, 2022) (holding that a medical professional's opinion that the plaintiff required an assistive device was insufficient because it did describe the duration, distance, terrain, or any other relevant information related to when a claimant needs the device). Dr. Nadeem diagnosed Plaintiff with “unspecified abnormalities of gait and mobility,” (AR 748-49), but this diagnosis does not provide any relevant information establishing the circumstances in which Plaintiff needs the device. The February 2023 discharge summary provides even less information, stating only that Plaintiff would be prescribed “a four-wheel walker for use for ambulation.” (AR 64). “Without a physician ‘describing the circumstances for which [the cane] is needed,' the ALJ could not have found the cane medically necessary.” Greer v. Commissioner of Social Security, No. SA CV 17-01316-DFM, 2018 WL 5885942, at *5 (quoting SSR 96-9p). A claimant's own testimony does not constitute required medical documentation establishing the need for an assistive device. Marin v. Astrue, No. 11-09331, 2012 WL 5381374, at *4 (C.D. Cal. Oct. 31, 2012) (finding ALJ “justifiably concluded that plaintiff's use of a cane did not warrant a more limited RFC” where only plaintiff's own testimony corroborated her need to use an assistive device for ambulation).
Plaintiff also contends that the ALJ had a duty to develop the record and send Plaintiff for a consultative examination to determine whether Plaintiff required the use of an assistive device “for ambulating long distances.” (Doc. 15 at 12). First, the ALJ left the record open after Plaintiff's hearing, allowing her to submit additional evidence. Plaintiff then submitted the February 2023 Discharge Summary which included notes that Plaintiff had been seen for congenital heart failure and pulmonary hypertension, and also stated that she had a prescription for a walker. (AR 64). It is the claimant's burden to prove disability by providing the requisite medical evidence. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a); Tidwell v. Apfel, 161 F.3d 599, 600 (9th Cir. 1999) (“At all times, the burden is on the claimant to establish her entitlement to disability insurance benefits.”). Plaintiff could have submitted an additional medical opinion to support her position that she needs an assistive device.
Neither has Plaintiff identified any ambiguity in the record requiring the ALJ to further develop the record. The ALJ considered medical records from 2021 to 2023, as well as Plaintiff's testimony and opinions by medical consultants. (AR 28-35). The ALJ cited various records which noted that Plaintiff had a normal gait and balance and that she ambulated independently without assistive devices. Plaintiff inconsistently reported a shortness of breath, and there are no objective findings (such as muscle atrophy, a loss of strength, a loss of sensation or reflexes, or problems with balance and coordination) to suggest Plaintiff required an assistive device to ambulate. Plaintiff relies heavily on records from physical therapist indicating she had a majorly decreased range of motion in her lumbar spine with a 10 out of 10 pain level in September 2022. Plaintiff's emphasis on this record, however, is misplaced. Even accepting these reports as true, they do not show Plaintiff required an assistive device, nor does it amount to an ambiguity in the evidence. At most, this demonstrates that Plaintiff did have pain in her lumbar spine, but she lacks medical evidence to support her claim that an assistive device was necessary to walk long distances. The ALJ's decision may be supported by substantial evidence even if the evidence may support a different conclusion. Edlund, 253 F.3d at 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner.”)
Plaintiff does not argue that the ALJ discounted her subjective symptoms, and therefore, any argument suggesting as much is waived. See Butler v. Comm'r of Soc. Sec., 586 Fed.Appx. 399, 400 (9th Cir. 2014) (unpublished) (“[Claimant] does not challenge the ALJ's [symptom evaluation] finding because she did not raise this issue in her opening brief.”).
Plaintiff's argument is simply a request for the Court to reweigh the medical evidence, which it cannot do. Tommasetti, 533 F.3d at 1038 (the court will uphold the ALJ's conclusion where the evidence is susceptible to more than one rational interpretation). Plaintiff's disagreement with the ALJ's conclusion is insufficient to trigger the ALJ's duty to develop the record further. Dixon v. Saul, 411 F.Supp.3d 837, 853 (N.D. Cal. Sept. 30, 2019) (“Plaintiffs disagreement with the ALJ's conclusions does not make the record ambiguous or inadequate.”).
In sum, the ALJ did not err in formulating Plaintiff's RFC.
V. CONCLUSION AND ORDER
For the foregoing reasons, the Court finds that the ALJ's decision is supported by substantial evidence in the record as a whole and is based on proper legal standards. Accordingly, the Court DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security. The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Martin O'Malley, Commissioner of Social Security, and against Plaintiff Melissa Orozco.
IT IS SO ORDERED.