Christine Gonzalez v. Nancy A. Berryhill ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 CHRISTINE G., ) No. ED CV 18-2666-PLA ) 13 Plaintiff, ) MEMORANDUM OPINION AND ORDER ) 14 v. ) ) 15 ANDREW M. SAUL, COMMISSIONER ) OF SOCIAL SECURITY ) 16 ADMINISTRATION, ) ) 17 Defendant. ) ) 18 19 I. 20 PROCEEDINGS 21 Christine G.1 (“plaintiff”) filed this action on December 27, 2018, seeking review of the 22 Commissioner’s2 denial of her applications for Disability Insurance Benefits (“DIB”) and 23 Supplemental Security Income (“SSI”) payments. The parties filed Consents to proceed before 24 1 In the interest of protecting plaintiff’s privacy, this Memorandum Opinion and Order uses 25 plaintiff’s (1) first name and last initial, and (2) year of birth in lieu of a complete birth date. See 26 Fed. R. Civ. P. 5.2(c)(2)(B), Local Rule 5.2-1. 27 2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul, the newly-appointed Commissioner of the Social Security Administration, is hereby substituted as the 28 1 a Magistrate Judge on January 15, 2019, and January 30, 2019. Pursuant to the Court’s Order, 2 the parties filed a Joint Stipulation (alternatively “JS”) on August 7, 2019, that addresses their 3 positions concerning the disputed issue in the case. The Court has taken the Joint Stipulation 4 under submission without oral argument. 5 6 II. 7 BACKGROUND 8 Plaintiff was born in 1964. [Administrative Record (“AR”) at 201.] She has past relevant 9 work experience as a loan processor. [Id. at 25, 62.] 10 On April 29, 2015, plaintiff filed an application for a period of disability and DIB, and an 11 application for SSI payments, alleging that she has been unable to work since September 1, 2006. 12 [Id. at 15, see 199, 201-09.] After her applications were denied initially and upon reconsideration, 13 plaintiff timely filed a request for a hearing before an Administrative Law Judge (“ALJ”). [Id. at 14 140-41.] A hearing was held on January 18, 2018, at which time plaintiff appeared represented 15 by an attorney, and testified on her own behalf. [Id. at 31-65.] A vocational expert (“VE”) also 16 testified. [Id. at 61-63.] On April 3, 2018, the ALJ issued a decision concluding that plaintiff was 17 not under a disability from September 1, 2006, the alleged onset date, through April 3, 2018, the 18 date of the decision. [Id. at 15-26.] Plaintiff requested review of the ALJ’s decision by the Appeals 19 Council. [Id. at 196.] When the Appeals Council denied plaintiff’s request for review on October 20 26, 2018 [id. at 1-5], the ALJ’s decision became the final decision of the Commissioner. See Sam 21 v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action followed. 22 23 III. 24 STANDARD OF REVIEW 25 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 26 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 27 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 28 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 1 “Substantial evidence means more than a mere scintilla but less than a preponderance; it 2 is such relevant evidence as a reasonable mind might accept as adequate to support a 3 conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). “Where 4 evidence is susceptible to more than one rational interpretation, the ALJ’s decision should be 5 upheld.” Id. (internal quotation marks and citation omitted). However, the Court “must consider 6 the entire record as a whole, weighing both the evidence that supports and the evidence that 7 detracts from the Commissioner’s conclusion, and may not affirm simply by isolating a specific 8 quantum of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 9 2014) (internal quotation marks omitted)). The Court will “review only the reasons provided by the 10 ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not 11 rely.” Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 12 80, 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order 13 must be judged are those upon which the record discloses that its action was based.”). 14 15 IV. 16 THE EVALUATION OF DISABILITY 17 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 18 to engage in any substantial gainful activity owing to a physical or mental impairment that is 19 expected to result in death or which has lasted or is expected to last for a continuous period of at 20 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 21 42 U.S.C. § 423(d)(1)(A)). 22 23 A. THE FIVE-STEP EVALUATION PROCESS 24 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 25 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 26 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). 27 In the first step, the Commissioner must determine whether the claimant is currently engaged in 28 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 1 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the 2 second step requires the Commissioner to determine whether the claimant has a “severe” 3 impairment or combination of impairments significantly limiting her ability to do basic work 4 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 5 a “severe” impairment or combination of impairments, the third step requires the Commissioner 6 to determine whether the impairment or combination of impairments meets or equals an 7 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, 8 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 9 claimant’s impairment or combination of impairments does not meet or equal an impairment in the 10 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 11 “residual functional capacity” to perform her past work; if so, the claimant is not disabled and the 12 claim is denied. Id. The claimant has the burden of proving that she is unable to perform past 13 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets 14 this burden, a prima facie case of disability is established. Id. The Commissioner then bears 15 the burden of establishing that the claimant is not disabled because there is other work existing 16 in “significant numbers” in the national or regional economy the claimant can do, either (1) by 17 the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 18 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue 19 comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; 20 Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257. 21 22 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 23 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 24 September 1, 2006, the alleged onset date.3 [AR at 18.] At step two, the ALJ concluded that 25 26 3 The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2011. [AR at 18.] As noted by the ALJ, with regard to 27 plaintiff’s application for DIB, she must be found disabled by or before December 31, 2011, in order to receive those benefits, and with respect to her April 29, 2015, application for SSI 28 1 plaintiff has the severe impairments of obesity; right ankle tendinitis; right knee status post total 2 knee replacement; lumbar spine degenerative disc disease; facet arthropathy and radiculopathy; 3 cervical spine degenerative disc disease and radiculopathy; migraine headaches; and chronic 4 pain. [Id.] At step three, the ALJ determined that plaintiff does not have an impairment or a 5 combination of impairments that meets or medically equals any of the impairments in the Listing. 6 [Id. at 20.] The ALJ further found that plaintiff retained the residual functional capacity (“RFC”)4 7 to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a),5 as follows: 8 [She] is never to climb ladders, ropes, or scaffolds; she may occasionally climb ramps or stairs; she may frequently balance; and she may occasionally stoop, kneel, 9 crouch, and crawl. 10 [Id.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded that 11 plaintiff is able to perform her past relevant work as a loan processor. [Id. at 25.] Accordingly, the 12 ALJ determined that plaintiff was not disabled at any time from the alleged onset date of 13 September 1, 2006, through April 3, 2018, the date of the decision. [Id. at 26.] 14 / 15 16 V. 17 THE ALJ’S DECISION 18 19 3(...continued) payments, she is eligible for benefits only since May 14, 2015. [Id. at 15.] Thus, the ALJ 20 considered plaintiff’s disability applications “under two distinct adjudication periods”: (1) from September 1, 2006, through December 31, 2011; and (2) from May 14, 2015, through the date of 21 the decision. [Id.] 22 4 RFC is what a claimant can still do despite existing exertional and nonexertional 23 limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which 24 the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 25 26 5 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as 27 one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other 28 1 Plaintiff contends that the ALJ erred when she failed to articulate specific, clear and 2 convincing reasons for rejecting plaintiff’s subjective symptom testimony. [JS at 4.] As set forth 3 below, the Court agrees with plaintiff and remands for further proceedings. 4 5 A. SUBJECTIVE SYMPTOM TESTIMONY 6 Plaintiff contends the ALJ failed to articulate legally sufficient reasons for rejecting plaintiff’s 7 subjective symptom testimony. [Id.] 8 The ALJ summarized plaintiff’s testimony as follows: 9 [She] testified she originally injured her right knee and ankle in 2003. She alleged since then she had multiple surgeries on her right knee with hardware inserted in her 10 shin and anticipated additional surgical procedures. She stated she underwent total knee replacement in 2011. [She] asserted she had used a walker and a cane to 11 assist with ambulation and most recently used a cane about two days prior to the hearing. She maintained she continued to have limited motion of the right knee and 12 could not squat. [She] estimated she could not walk for more than 20 minutes, could not lift more than 5 pounds, could not sit for more than 15 minutes at a time, 13 and could not stand for more than 15 minutes at a time. [She] also complained of pain in her low back and neck and contended she essentially experienced daily pain 14 from her neck to her toes. However, she maintained she experienced the most pain in her low back and right knee, which was constant. [She] testified in a typical day 15 she had to lie down about 80% of the day. 16 [AR at 21.] 17 The ALJ discounted plaintiff’s subjective symptom testimony as follows: 18 Despite her impairments, [she] has engaged in a somewhat normal level of daily activity and interaction. . . . 19 The consistency of [her] allegations regarding the severity of her symptoms and 20 limitations is diminished because those allegations are greater than expected in light of the objective evidence of record. The medical evidence indicates [she] received 21 routine conservative treatment for complaints of multiple orthopedic issues and migraine headaches. The lack of more significant objective medical evidence to 22 support her subjective complaints suggests [her] symptoms and limitations were not as severe as she alleged. The positive objective clinical and diagnostic findings 23 since the alleged onset date detailed below do not support more restrictive functional limitations than those assessed herein. 24 25 [Id. at 21-22 (citation omitted).] 26 / 27 28 1 Prior to the ALJ’s assessment in this case, Social Security Ruling (“SSR”)6 16-3p went into 2 effect. See SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017).7 SSR 16-3p supersedes SSR 96-7p, 3 the previous policy governing the evaluation of subjective symptoms. SSR 16-3p, 2017 WL 4 5180304, at *2. SSR 16-3p indicates that “we are eliminating the use of the term ‘credibility’ from 5 our sub-regulatory policy, as our regulations do not use this term.” Id. Moreover, “[i]n doing so, 6 we clarify that subjective symptom evaluation is not an examination of an individual’s character[;] 7 [i]nstead, we will more closely follow our regulatory language regarding symptom evaluation.” Id.; 8 Trevizo, 871 F.3d at 678 n.5. Thus, the adjudicator “will not assess an individual’s overall 9 character or truthfulness in the manner typically used during an adversarial court litigation. The 10 focus of the evaluation of an individual’s symptoms should not be to determine whether he or she 11 is a truthful person.” SSR 16-3p, 2017 WL 5180304, at *11. The ALJ is instructed to “consider 12 all of the evidence in an individual’s record,” “to determine how symptoms limit ability to perform 13 work-related activities.” Id. at *2. The Ninth Circuit also noted that SSR 16-3p “makes clear what 14 our precedent already required: that assessments of an individual’s testimony by an ALJ are 15 designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the 16 individual has a medically determinable impairment(s) that could reasonably be expected to 17 produce those symptoms,’ and ‘not to delve into wide-ranging scrutiny of the claimant’s character 18 19 6 “SSRs do not have the force of law. However, because they represent the Commissioner’s 20 interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202 21 n.1 (9th Cir. 2001) (citations omitted). 22 7 SSR 16-3p, originally “effective” on March 28, 2016, was republished on October 25, 2017, 23 with the revision indicating that SSR 16-3p was “applicable [rather than effective] on March 28, 2016.” See 82 Fed. Reg. 49462, 49468 & n.27, 2017 WL 4790249, 4790249 (Oct. 25, 2017); SSR 24 16-3p, 2017 WL 5180304 (Oct. 25, 2017). Other than also updating “citations to reflect [other] revised regulations that became effective on March 27, 2017,” the Administration stated that SSR 25 16-3p “is otherwise unchanged, and provides guidance about how we evaluate statements 26 regarding the intensity, persistence, and limiting effects of symptoms in disability claims . . . .” Id. The Ninth Circuit recently noted that SSR 16-3p is consistent with its prior precedent. Trevizo v. 27 Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (SSR 16-3p “makes clear what [Ninth Circuit] precedent already required”). Thus, while SSR 16-3p eliminated the use of the term “credibility,” 28 1 and apparent truthfulness.’” Trevizo, 871 F.3d at 678 n.5 (citing SSR 16-3p). 2 To determine the extent to which a claimant’s symptom testimony must be credited, the 3 Ninth Circuit has “established a two-step analysis.” Trevizo, 871 F.3d at 678 (citing Garrison, 759 4 F.3d at 1014-15). “First, the ALJ must determine whether the claimant has presented objective 5 medical evidence of an underlying impairment which could reasonably be expected to produce the 6 pain or other symptoms alleged.” Id. (quoting Garrison, 759 F.3d at 1014-15); Treichler v. Comm’r 7 of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 8 1028, 1036 (9th Cir. 2007)) (internal quotation marks omitted). If the claimant meets the first test, 9 and the ALJ does not make a “finding of malingering based on affirmative evidence thereof” 10 (Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)), the ALJ must “evaluate the 11 intensity and persistence of [the] individual’s symptoms . . . and determine the extent to which 12 [those] symptoms limit [her] . . . ability to perform work-related activities . . . .” SSR 16-3p, 2017 13 WL 5180304, at *4. In assessing the intensity and persistence of symptoms, the ALJ must 14 consider a claimant’s daily activities; the location, duration, frequency, and intensity of the pain or 15 other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness and side 16 effects of medication taken to alleviate pain or other symptoms; treatment, other than medication 17 received for relief of pain or other symptoms; any other measures used to relieve pain or other 18 symptoms; and other factors concerning a claimant’s functional limitations and restrictions due to 19 pain or other symptoms. 20 C.F.R. § 416.929; see also Smolen v. Chater, 80 F.3d 1273, 1283-84 20 & n.8; SSR 16-3p, 2017 WL 5180304, at *4 (“[The Commissioner] examine[s] the entire case 21 record, including the objective medical evidence; an individual’s statements . . . ; statements and 22 other information provided by medical sources and other persons; and any other relevant evidence 23 in the individual’s case record.”). 24 Where, as here, plaintiff has presented evidence of an underlying impairment, and the ALJ 25 did not make a finding of malingering, the ALJ’s reasons for rejecting a claimant’s subjective 26 symptom statements must be specific, clear and convincing. Brown-Hunter v. Colvin, 806 F.3d 27 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (citing Molina 28 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)); Trevizo, 871 F.3d at 678 (citing Garrison, 759 1 F.3d at 1014-15); Treichler, 775 F.3d at 1102. “General findings [regarding a claimant’s credibility] 2 are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 3 undermines the claimant’s complaints.” Burrell, 775 F.3d at 1138 (quoting Lester, 81 F.3d at 834) 4 (quotation marks omitted). The ALJ’s findings “‘must be sufficiently specific to allow a reviewing 5 court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds and 6 did not arbitrarily discredit a claimant’s testimony regarding pain.’” Brown-Hunter, 806 F.3d at 493 7 (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). A “reviewing court 8 should not be forced to speculate as to the grounds for an adjudicator’s rejection of a claimant’s 9 allegations of disabling pain.” Bunnell, 947 F.2d at 346. As such, an “implicit” finding that a 10 plaintiff’s testimony is not credible is insufficient. Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 11 1990) (per curiam). 12 In determining whether an individual’s symptoms will reduce her corresponding capacities 13 to perform work-related activities or abilities to function independently, appropriately, and 14 effectively in an age-appropriate manner, the ALJ “will consider the consistency of the individual’s 15 own statements.” SSR 16-3p, 2017 WL 5180304, at *8-9; see also Ghanim v. Colvin, 763 F.3d 16 1154, 1163-64 (9th Cir. 2014). In doing so, the ALJ “will compare statements an individual makes 17 in connection with the individual’s claim for disability benefits with any existing statements the 18 individual made under other circumstances.” Id. “If an individual’s various statements about the 19 intensity, persistence, and limiting effects of symptoms are consistent with one another and 20 consistent with the objective medical evidence and other evidence in the record,” the ALJ will 21 determine that an individual’s symptoms are more likely to reduce her capacities for work-related 22 activities or reduce the abilities to function independently, appropriately, and effectively in an 23 age-appropriate manner. Id. at *9. The ALJ will recognize, however, that inconsistencies in an 24 individual’s statements made at varying times “does not necessarily mean they are inaccurate,” 25 as symptoms may vary in their intensity, persistence, and functional effects, or may worsen or 26 improve with time. Id. 27 Here, in discounting plaintiff’s testimony, the ALJ found the following: (1) plaintiff’s 28 subjective complaints were not supported by the objective evidence; (2) plaintiff’s treatment was 1 conservative; and (3) plaintiff’s daily activities were inconsistent with her allegations of disabling 2 functional limitations. [AR at 21.] 3 4 1. Testimony Inconsistent with the RFC 5 Preliminarily, the ALJ found that plaintiff’s “allegations concerning the intensity, persistence 6 and limiting effects of her symptoms” were “inconsistent with the residual functional capacity 7 assessment herein.” [Id.] 8 The Court observes that “[b]ecause the claimant’s symptom testimony must be taken into 9 account when the ALJ assesses the claimant’s RFC, it cannot be discredited because it is 10 inconsistent with that RFC.” Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017). Thus, the 11 ALJ cannot “properly evaluate the claimant’s credibility based on a predetermined RFC” and, to 12 do so, “puts the cart before the horse.” Id. at 1154 & n.4. That is because, without more, the 13 Court cannot simply infer from that language “‘that the ALJ rejected [the claimant’s] testimony to 14 the extent it conflicted with the medical evidence’” as summarized by the ALJ. Id. at 1154-55 15 (quoting Treichler, 775 F.3d at 1103) (alteration in original). Indeed, the use of this language by 16 the ALJ implies that she arrived at an RFC determination for sedentary work with various 17 limitations and then found that plaintiff’s subjective symptom testimony supported that 18 determination, rather than conducting a “thorough discussion and analysis of the objective medical 19 and other evidence, including the individual’s complaints of pain and other symptoms” and taking 20 that information “into account when determining the RFC.” Id. at 1153 (citing Garrison, 759 F.3d 21 at 1011) (emphases added). This is an insufficient basis for discrediting testimony, but the error 22 may be harmless if the ALJ provides other legally sufficient reasons for discounting the claimant’s 23 testimony. Id. at 1154-55. As discussed below, the ALJ did not provide any legally sufficient 24 reasons for discounting plaintiff’s testimony. Thus, the error in this case was not harmless. 25 26 2. Objective Evidence 27 While a lack of objective medical evidence supporting a plaintiff’s subjective complaints 28 cannot provide the only basis to reject a claimant’s subjective symptom testimony (Trevizo, 871 1 F.3d at 679 (quoting Robbins, 466 F.3d at 883)), it is one factor that an ALJ can consider in 2 evaluating symptom testimony. See Burch, 400 F.3d at 681 (“Although lack of medical evidence 3 cannot form the sole basis for discounting pain testimony, it is a factor the ALJ must consider in 4 his credibility analysis.”); SSR 16-3p, 2017 WL 5180304, at *5 (“objective medical evidence is a 5 useful indicator to help make reasonable conclusions about the intensity and persistence of 6 symptoms, including the effects those symptoms may have on the ability to perform work-related 7 activities for an adult”). “The intensity, persistence, and limiting effects of many symptoms can be 8 clinically observed and recorded in the medical evidence. . . . These findings may be consistent 9 with an individual’s statements about symptoms and their functional effects. However, when the 10 results of tests are not consistent with other evidence in the record, they may be less supportive 11 of an individual’s statements about pain or other symptoms than test results and statements that 12 are consistent with other evidence in the record.” SSR 16-3p, 2017 WL 5180304, at *5. As the 13 Ninth Circuit recently held, “an ALJ’s ‘vague allegation’ that a claimant’s testimony is ‘not 14 consistent with the objective medical evidence,’ without any ‘specific finding in support’ of that 15 conclusion, is insufficient.” Treichler, 775 F.3d at 1103 (citation omitted). 16 Here, the ALJ stated her conclusion that plaintiff’s testimony concerning the intensity, 17 persistence, and limiting effects of her symptoms was “not entirely consistent with the residual 18 functional capacity assessment.” [AR at 21.] She also stated that the “consistency of [plaintiff’s] 19 allegations regarding the severity of her symptoms and limitations is diminished because those 20 allegations are greater than expected in light of the objective evidence of record.” [Id. at 22.] The 21 ALJ then summarized the medical evidence from 2006 through 2017, only once mentioning 22 plaintiff’s subjective symptom testimony: the ALJ stated that plaintiff presented on March 9, 2015, 23 for a pain management evaluation and, at that time, complained of neck pain and spasms 24 radiating into her right upper extremity, low back pain radiating into the bilateral lower extremities, 25 and lower extremity pain primarily in the right leg that was on average a 6/10 pain scale with 26 medication treatment. [Id. at 23 (citation omitted).] At that visit, however, the examination actually 27 showed “cervical spine spasm and tenderness . . . with diminished range of motion and a sensory 28 examination showed decreased sensation in the right upper extremity affecting the C4-C6 1 dermatome.” [Id.] As further acknowledged by the ALJ: 2 The examination also showed lumbar spine muscle spasm and tenderness with severely limited range of motion secondary to pain, decreased sensitivity to touch 3 along the L4-S1 dermatome in the right lower extremity that was consistent with prior findings, positive straight leg raise in the seated position on the right at 30 4 degrees, and tenderness to palpation at the right hip. [Plaintiff] continued to receive medication treatment to alleviate her pain symptoms. Subsequent examinations on 5 May 4, 2015 and June 1, 2015 were consistent with these findings. 6 [Id. (emphases added) (citations omitted).] This example, therefore, rather than providing support 7 for the ALJ’s determination that the objective evidence did not support plaintiff’s testimony, instead 8 lends support to plaintiff’s subjective symptom complaints. 9 Similarly, plaintiff’s medical history as recited, in part, by the ALJ, also reads like a litany 10 of support for plaintiff’s complaints: 11 ꞏ noting plaintiff’s “history of degenerative issues relating to the right knee,” the ALJ observed that in July 2006 plaintiff was provided a brace to improve her range of 12 motion; examination showed “weakness to resistence to knee extension and tenderness over the patellar tendon with some numbness along the lateral border 13 of her leg”; she also observed that subsequent examinations through October 2006 were “generally consistent with these findings, as [plaintiff] received conservative 14 treatment including pool therapy” [id. at 22 (citing id. at 487-505)]; 15 ꞏ a November 2006 MRI study of the right ankle showed “tendinitis involving the flexor hallucis tendon and hypertrophic changes seen in the posterior subtalar joint” 16 [id. (citing id. at 483-84)]; 17 ꞏ a March 2008 MRI of the right knee showed grade II signal in the medial and lateral menisci, but no evidence of a cruciate tear [id. (citing id. at 481)]; 18 ꞏ a December 2009 nerve conduction study of the lower extremities showed bilateral 19 superficial peroneal neuropathy, and the electrodiagnostic evidence was “suggestive of mild irritation of the right L5 nerve root”; a neurological examination on this date 20 showed sensation and reflexes were intact and motor strength was 5/5 (that note also reflects, however, that plaintiff had undergone five surgeries to her right knee 21 as of that date; reflects an antalgic gait; reflects slight tenderness at L5-S1; and reports isolated sharp waves identified in the EMG test in the right tibialis anterior 22 and tibialis posterior [id. (citing AR at 475, 479-80)]; 23 ꞏ a June 2010 MRI of the lumbar spine showed an L3-L4 posterior disc bulge and L5-S1 moderate bilateral neural foraminal narrowing secondary to posterior disc 24 bulge and facet joint hypertrophy [id. (citing 472-74, 936)]; 25 ꞏ a May 2013 MRI of the lumbar spine showed L3-L4 disc protrusion with an annular tear effacing the anterior thecal sac [JS at 12 (citing AR at 468-69)]; 26 ꞏ a May 2013 MRI of the cervical spine revealing mild left foraminal narrowing at C4- 27 C5, and mild central canal stenosis and severe bilateral neural foraminal narrowing at C5-C6 [id. (citing AR at 470)]; 28 1 ꞏ right knee total arthroplasty in September 2011, with August 2012 “correctional osteotomy on the proximal tibia” [AR at 22 (citing id. at 531)]; 2 ꞏ a March 2015 pain evaluation as discussed above [id. at 23 (citing id. at 656-84)]; 3 ꞏ a June 2015 cervical spine epidural injection [id. (citing id. at 799-800)]; 4 ꞏ between June 2015 and April 2016, examinations “remained consistent with the 5 March 2015 examination findings” in that plaintiff “continued to receive conservative medication treatment” [id. (citing AR at 758-98, 1013-54)]; 6 ꞏ another cervical spine epidural injection in June 2016 [id. (citing id. at 1056-57)], 7 and subsequent pain management examinations “remained consistent with prior findings, as [she] appeared to remain at a stable baseline level with no evidence of 8 significant improvement or additional deterioration in her physical impairments” [id. (citing AR at 902-92)]; 9 ꞏ a December 2016 “examination showed right knee range of motion . . . pain with 10 movements and restriction” but no evidence of swelling, effusion, or tenderness [id. (citing id. at 827-37)]; 11 ꞏ a May 2017 right hip injection [id. (citing id. at 1055)]; 12 ꞏ a July 10, 2017 pain management examination that revealed plaintiff continued to 13 have tenderness to palpation of the right hip and right knee, range of motion of the right knee was decreased due to pain, and a motor examination that showed 14 moderately decreased strength in the right lower extremity with crepitus [id. (citing id. at 872-91, 895)]; 15 ꞏ on July 19, 2017, plaintiff was seen for her complaints of sharp and throbbing 16 headaches [id. (citing id. at 818-20)]; and 17 ꞏ on August 22, 2017, plaintiff was again treated for headache pain [id. (citing id. at 815-17)]. 18 19 The “ALJ must identify the testimony that [is being discounted], and specify ‘what evidence 20 undermines the claimant’s complaints.’” Treichler, 775 F.3d at 1103 (citation omitted) (emphasis 21 added); Brown-Hunter, 806 F.3d at 493. Here, the ALJ did not identify the testimony she was 22 discounting and “link that testimony to the particular parts of the record” supporting her 23 determination. Brown-Hunter, 806 F.3d at 494. Indeed, the ALJ’s running narrative regarding 24 plaintiff’s medical records did not provide “the sort of explanation or the kind of ‘specific reasons’ 25 we must have in order to review the ALJ’s decision meaningfully, so that we may ensure that the 26 claimant’s testimony was not arbitrarily discredited,” nor can the error be found harmless. Id. at 27 493 (rejecting the Commissioner’s argument that because the ALJ set out his RFC and 28 summarized the evidence supporting his determination, the Court can infer that the ALJ rejected 1 the plaintiff’s testimony to the extent it conflicted with that medical evidence, because the ALJ 2 “never identified which testimony she found not credible, and never explained which evidence 3 contradicted that testimony”) (citing Treichler, 775 F.3d at 1103, Burrell, 775 F.3d at 1138). 4 Thus, this was not a specific, clear and convincing reason for discounting plaintiff’s 5 subjective symptom testimony. Even assuming this was a specific, clear and convincing reason 6 for discounting plaintiff’s testimony, the ALJ’s determination to discount plaintiff’s subjective 7 symptom testimony for this reason rises or falls with the ALJ’s other grounds for discrediting 8 plaintiff. As seen below, those other grounds are insufficient as well. 9 10 3. Conservative Treatment History 11 The ALJ also discounted plaintiff’s allegations because “the medical evidence indicates 12 [she] received routine conservative treatment for complaints of multiple orthopedic issues and 13 migraine headaches. The lack of more significant objective medical evidence to support her 14 subjective complaints suggests [her] symptoms and limitations were not as severe as she alleged.” 15 [AR at 22.] 16 An ALJ may properly rely on the fact that only routine and conservative treatment has been 17 prescribed. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). “Conservative treatment” has 18 been characterized by the Ninth Circuit as, for example, “treat[ment] with an over-the-counter pain 19 medication” (see, e.g., Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (emphasis added); 20 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (holding that the ALJ properly 21 considered the plaintiff’s use of “conservative treatment including physical therapy and the use of 22 anti-inflammatory medication, a transcutaneous electrical nerve stimulation unit, and a 23 lumbosacral corset”)), or a physician’s failure “to prescribe . . . any serious medical treatment for 24 [a claimant’s] supposedly excruciating pain.” Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 25 1999). 26 Stating that the ALJ’s reasoning is “plainly false,” plaintiff notes that the record reflects that 27 she underwent numerous surgeries on her right knee prior to the total knee replacement in 2011; 28 she underwent a post-correction osteotomy of her right tibia in August 2012; and, in 2013, Simon 1 Lavi, M.D., “requested consideration of a surgical approach at the C4-C5 and C5-C6 levels.” [JS 2 at 10 (citing AR at 575, 944).] She also notes her extensive pain management treatment with Dr. 3 Baker, and itemizes the numerous epidural injections, Toradol injections, and narcotic pain 4 medications, some of which were also outlined above. [Id. (citations omitted).] 5 Many courts have previously found that strong narcotic pain medications and spinal 6 epidural injections are not considered to be “conservative” treatment. See, e.g., Garrison, 759 7 F.3d 995, 1015 n.20 (expressing “doubt that epidural steroid shots to the neck and lower back 8 qualify as ‘conservative’ medical treatment”); Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th 9 Cir. 2010) (criticizing an ALJ for characterizing treatment as “conservative” where the treatment 10 included “copious amounts of narcotic pain medication as well as occipital nerve blocks and trigger 11 point injections,” as well as cervical fusion surgery); Yang v. Barnhart, 2006 WL 3694857, at *4 12 (C.D. Cal. Dec. 12, 2006) (ALJ’s finding that claimant received conservative treatment was not 13 supported by substantial evidence when claimant underwent physical therapy and epidural 14 injections, and was treated with several pain medications); Christie v. Astrue, 2011 WL 4368189, 15 at *4 (C.D. Cal. Sept. 16, 2011) (refusing to characterize treatment with narcotics, steroid 16 injections, trigger point injections, and epidural injections as conservative); Aguilar v. Colvin, 2014 17 WL 3557308, at *8 (C.D. Cal. July 18, 2014) (“It would be difficult to fault Plaintiff for overly 18 conservative treatment when he has been prescribed strong narcotic pain medications.”); see also 19 Childress v. Colvin, 2014 WL 4629593, at *12 (N.D. Cal. Sept. 16, 2014) (“[i]t is not obvious 20 whether the consistent use of [a prescribed narcotic] is ‘conservative’ or in conflict with Plaintiff’s 21 pain testimony”); but see JS at 22-23 (citing cases). 22 Here, based on the foregoing authorities and plaintiff’s treatment history, the Court rejects 23 the ALJ’s conclusion that plaintiff’s course of treatment -- consisting of not only multiple surgeries 24 (conducted and/or recommended), but also extensive pain management treatment including 25 multiple cervical and lumbar epidural injections, “numerous Toradol injections . . . for increased 26 pain,” and use of narcotic medications for pain; use of a knee brace; and use of ambulatory 27 devices -- was conservative. Additionally, the ALJ failed to articulate what, if any, treatment other 28 than multiple surgeries and extensive pain management treatment as detailed above, was 1 currently recommended or available for plaintiff’s multiple orthopedic issues and other physical 2 impairments. The ALJ points to no evidence in the record that anything else had been 3 recommended for plaintiff by a physician or was warranted for her conditions. Additionally, the 4 ALJ failed to point to anything in the record to show that any specific treatment other than the 5 treatment plaintiff had been receiving is a standard method for treating individuals with the type 6 of pain or other limitations caused by plaintiff’s physical impairments. 7 Thus, this was not a specific, clear and convincing reason for discounting plaintiff’s 8 subjective symptom testimony. 9 10 4. Daily Activities 11 The ALJ found that plaintiff “has engaged in a somewhat normal level of daily activity and 12 interaction.” [AR at 21.] She described plaintiff’s daily activities as follows: 13 [She] reported in the year preceding the hearing she lived in an apartment by herself. She did not report any particular difficulty maintaining her home or taking 14 care of her personal hygiene and did not report that anyone helped her with these things as she lived alone. She reported she did not have any significant difficulty 15 driving and indicated she would visit family members that were about half an hour away. She also reported she did her own grocery shopping and took short walks 16 around her apartment complex. [She] also reported to the psychiatric consultative examiner, she had no difficulty managing funds or paying bills, was able to cook, 17 she played with her grandson and read to him, she maintained close relationships with family members and close friends, and she had no problems maintaining 18 attention. Some of the physical and mental abilities and social interactions required in order to perform these activities are the same as those necessary for obtaining 19 and maintaining employment. [Her] ability to participate in such activities was inconsistent with [her] allegations of disabling functional limitations. Additionally, 20 they further support the medical records in finding [she] was capable of performing work consistent with the residual functional capacity finding contained herein. 21 [Id.] 22 An ALJ may discredit testimony when a claimant reports participation in everyday activities 23 indicating capacities that are transferable to a work setting. Molina, 674 F.3d at 1113. However, 24 “[e]ven where those activities suggest some difficulty functioning, they may be grounds for 25 discrediting the claimant’s testimony to the extent that they contradict claims of a totally debilitating 26 impairment.” Id. (citing Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1225 (9th Cir. 2010); 27 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009)). “Engaging in daily 28 1 activities that are incompatible with the severity of symptoms alleged can support an adverse 2 credibility determination.” Trevizo, 871 F.3d at 682 (citing Ghanim, 763 F.3d at 1165). 3 Plaintiff contends that her “ability to perform some of the aforementioned activities is far 4 more limited than the ALJ portrays.” [JS at 7.] She notes, for instance, that she testified that she 5 can cook simple things “as long as it does not require her ‘to stand for long periods’”; she can 6 bathe but cannot sit for very long; she has difficulty getting up off the toilet; she does her own 7 laundry, but only for a couple of hours every two weeks; she shops, but only goes twice a month 8 for an hour; she reads, but not for too long because it causes pain in her neck, arm, and back; and 9 she spends time with her grandson but that consists of reading and watching cartoons. [Id. at 7-8 10 (citing AR at 244-47).] She contends, therefore, that the ALJ’s assertion that plaintiff’s daily 11 activities are inconsistent with her allegations of pain is analogous to the conclusion of the ALJ that 12 was rejected by the Ninth Circuit in Garrison (id. at 8-9): 13 We have repeatedly warned that ALJs must be especially cautious in concluding the daily activities are inconsistent with testimony about pain, because impairments that 14 would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all 15 day. See, e.g., Smolen, 80 F.3d at 1287 n. 7 (“The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, and many 16 home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication.” (citation omitted)); Fair v. 17 Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[M]any home activities are not easily transferable to what may be the more grueling environment of the workplace, where 18 it might be impossible to periodically rest or take medication.”). Recognizing that “disability claimants should not be penalized for attempting to lead normal lives in 19 the face of their limitations,” we have held that “[o]nly if [her] level of activity were inconsistent with [a claimant’s] claimed limitations would these activities have any 20 bearing on [her] credibility.” Reddick v. Chater, 157 F.3d [715,] 722 [9th Cir. 1998] (citations omitted); see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) 21 (“The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can 22 get help from other persons . . . , and is not held to a minimum standard of performance, as she would be by an employer. The failure to recognize these 23 differences is a recurrent, and deplorable, feature of opinions by administrative law judges in social security disability cases.” (citations omitted)). 24 Garrison, 759 F.3d at 1016. 25 The Court agrees with plaintiff. Although the ALJ specifically identified some of the daily 26 activities admittedly engaged in by plaintiff and found that they demonstrated that plaintiff was able 27 to perform sedentary work within the RFC determination or were “inconsistent with [her] 28 1 allegations of disabling functional limitations” [AR at 21], the amount of involvement plaintiff 2 described in these activities was minimal. [See id. at 37-38, 46-53, 243-50.] Accordingly, the 3 ALJ’s finding that plaintiff’s subjective symptom testimony regarding the limiting effects of her 4 symptoms was inconsistent with her daily activities was not a specific, clear and convincing reason 5 for discounting plaintiff’s subjective symptom testimony. 6 Moreover, although the ALJ also concluded that “[s]ome of the physical and mental abilities 7 and social interactions required in order to perform these activities are the same as those 8 necessary for obtaining and maintaining employment,” the ALJ did not explain how plaintiff’s daily 9 activities are transferable to a work setting. “[I]f a claimant is able to spend a substantial part of 10 his day engaged in pursuits involving the performance of physical functions that are transferable 11 to a work setting, a specific finding as to this fact may be sufficient to discredit an allegation of 12 disabling excess pain.” Fair, 885 F.2d at 603 (emphasis in original). An ALJ “must make specific 13 findings relating to the daily activities and their transferability to conclude that a claimant’s daily 14 activities warrant an adverse credibility determination.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 15 2007) (citation and alteration omitted). Here, the ALJ neither made specific findings nor pointed 16 to any record evidence to support her conclusion that plaintiff’s daily activities and interactions 17 were in some way transferable to a work setting. See id. 18 This was not a specific, clear and convincing reason for discounting plaintiff’s subjective 19 symptom testimony. 20 21 B. CONCLUSION 22 The Court finds the ALJ’s subjective symptom testimony determination to be virtually 23 indistinguishable from the subjective symptom testimony determination rejected by the Ninth 24 Circuit in Brown-Hunter. As in Brown-Hunter, the ALJ here “simply stated her . . . conclusion 25 [regarding plaintiff’s subjective symptom testimony] and then summarized the medical evidence 26 supporting her RFC determination.” Brown-Hunter, 806 F.3d at 494. Although the ALJ also briefly 27 summarized plaintiff’s daily activities, she did not then identify the testimony she found not 28 credible, and “link that testimony to the particular parts of the record” supporting her non-credibility 1 determination. Id. Neither did she demonstrate that plaintiff’s treatment had been routine and 2 conservative. In short, “[t]his is not the sort of explanation or the kind of ‘specific reasons’ we must 3 have in order to review the ALJ’s decision meaningfully, so that we may ensure that the claimant’s 4 testimony was not arbitrarily discredited,” nor can the error be found harmless. Id. 5 Remand is warranted on this issue. 6 7 VI. 8 REMAND FOR FURTHER PROCEEDINGS 9 The Court has discretion to remand or reverse and award benefits. Trevizo, 871 F.3d at 10 682 (citation omitted). Where no useful purpose would be served by further proceedings, or where 11 the record has been fully developed, it is appropriate to exercise this discretion to direct an 12 immediate award of benefits. Id. (citing Garrison, 759 F.3d at 1019). Where there are outstanding 13 issues that must be resolved before a determination can be made, and it is not clear from the 14 record that the ALJ would be required to find plaintiff disabled if all the evidence were properly 15 evaluated, remand is appropriate. See Garrison, 759 F.3d at 1021. 16 In this case, there are outstanding issues that must be resolved before a final determination 17 can be made. In an effort to expedite these proceedings and to avoid any confusion or 18 misunderstanding as to what the Court intends, the Court will set forth the scope of the remand 19 proceedings. First, because the ALJ failed to provide specific, clear and convincing reasons, 20 supported by substantial evidence in the case record, for discounting plaintiff’s subjective symptom 21 testimony, the ALJ on remand, in accordance with SSR 16-3p, shall reassess plaintiff’s subjective 22 allegations regarding her symptoms and limitations, and either credit her testimony as true, or 23 provide specific, clear and convincing reasons, supported by substantial evidence in the case 24 record, for discounting or rejecting any testimony. Next, based on her reevaluation of plaintiff’s 25 subjective symptom testimony, and considered in light of the medical evidence of record, the ALJ 26 shall determine whether the RFC determination should have been more restrictive than the RFC 27 28 1|| forth in the 2018 Decision.® Finally, the ALJ shall proceed through step four and, if warranted, 2|| step five to determine, with the assistance of a VE if necessary, whether plaintiff can perform her 3|| past relevant work or any other work existing in significant numbers in the regional and national economies. See Shaibi v. Berryhill, 883 F.3d 15102, 1110 (9th Cir. 2017). 5 6 Vil. 7 CONCLUSION 8 IT IS HEREBY ORDERED that: (1) plaintiffs request for remand is granted; (2) the 9|| decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further 10 | proceedings consistent with this Memorandum Opinion. 11 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the 12 || Judgment herein on all parties or their counsel. 13 This Memorandum Opinion and Order is not intended for publication, nor is it 14|| intended to be included in or submitted to any online service such as Westlaw or Lexis. 1 Sak. Meant 16 DATED: August 27, 2019 PAUL L. ABRAMS 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 |; ——_—_———_ 6 8 Nothing in this Opinion is intended to disrupt the ALJ’s determinations that (1) plaintiff has at least the severe impairments of obesity; right ankle tendinitis; right knee status post total knee replacement; lumbar spine degenerative disc disease; facet arthropathy and radiculopathy; cervical spine degenerative disc disease and radiculopathy; migraine headaches; and chronic 28 pain, and (2) plaintiff is able to perform no more than a range of sedentary work. [See AR at 20.] nN