Margie Lopez v. Nancy A. Berryhill ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10) MARGIE _L., ) No. CV 19-1022-PLA 11 Plaintiff, MEMORANDUM OPINION AND ORDER 12 V. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY ) ADMINISTRATION, ) 15 Defendant. 16 17 I. 18 PROCEEDINGS 19 Margie L.' (“plaintiff”) filed this action on February 11, 2019, seeking review of th Commissioner’s* denial of her application for Disability Insurance Benefits (“DIB”). The partie 21] filed Consents to proceed before a Magistrate Judge on March 4, 2019, and March 11, 2015 Pursuant to the Court’s Order, the parties filed a Joint Submission (alternatively “JS”) o December 16, 2019, that addresses their positions concerning the disputed issue in the case 25 ' In the interest of protecting plaintiff's privacy, this Memorandum Opinion and Order use plaintiff's (1) first name and last initial, and (2) year of birth in lieu of a complete birth date. Se 26 || Fed. R. Civ. P. 5.2(c)(2)(B), Local Rule 5.2-1. * Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul, th newly-appointed Commissioner of the Social Security Administration, is hereby substituted as th: defendant herein. 1| The Court has taken the Joint Submission under submission without oral argument. 2 3 Il. 4 BACKGROUND 5 Plaintiff was born in 1963. [Administrative Record (“AR”) at 439.] She has past releva 6 || work experience as a home care provider; as a housekeeper; as a caregiver; and as a cleane medical services. [Id. at 26.] 8 On November 20, 2014, plaintiff protectively filed an application for a period of disabili and DIB alleging that she has been unable to work since January 27, 2014. [Id. at 17; see als id. at 439-40.] After her application was denied initially and upon reconsideration, plaintiff time filed a request for a hearing before an Administrative Law Judge (“ALJ”). [Id. at 377-78.] □ 12] hearing was held on September 20, 2017, at which time plaintiff appeared represented by a 13] attorney, and testified on her own behalf. [Id. at 271-300.] A medical expert (“ME”) and 14 vocational expert (“VE”) also testified. [Id. at 275-82, 291-99.] On January 9, 2018, the AL issued a decision concluding that plaintiff was not under a disability from January 27, 2014, th alleged onset date, through June 30, 2014, the date last insured. [ld. at 17-27.] Plainti requested review of the ALJ’s decision by the Appeals Council. [Id. at 437-38.] When th 18 | Appeals Council denied plaintiff's request for review on December 27, 2018 [id. at 1-5], the ALJ’ decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 811 (9th Cir. 2008) (per curiam) (citations omitted). This action followed. 21 22 lil. 23 STANDARD OF REVIEW 24 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’: decision to deny benefits. The decision will be disturbed only if it is not supported by substantia evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 27|| F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 28 “Substantial evidence ... is ‘more than a mere scintilla[,]’. .. [which] means -- and means 1| only -- ‘such relevant evidence as a reasonable mind might accept as adequate to support 2] conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (citatior omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Where evidence is susceptib to more than one rational interpretation, the ALJ’s decision should be upheld.” Revels, 874 F.< S| at 654 (internal quotation marks and citation omitted). However, the Court “must consider tt 6 | entire record as a whole, weighing both the evidence that supports and the evidence that detrac from the Commissioner's conclusion, and may not affirm simply by isolating a specific □□□□□□ 8| of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 201. 9} (internal quotation marks omitted)). The Court will “review only the reasons provided by the AL in the disability determination and may not affirm the ALJ on a ground upon which he did not rely Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 81 12| 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order mu: 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 unabl 18] to engage in any substantial gainful activity owing to a physical or mental impairment that i 19] expected to result in death or which has lasted or is expected to last for a continuous period c atleast twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quotin 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 assessin: 25 | whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 46: F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)} In the first step, the Commissioner must determine whether the claimant is currently engaged i 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, th 2|| second step requires the Commissioner to determine whether the claimant has a “sever 3] impairment or combination of impairments significantly limiting her ability to do basic wo 4| activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant □□ a “severe” impairment or combination of impairments, the third step requires the Commission to determine whether the impairment or combination of impairments meets or equals < 7| impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart | appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If tt 9| claimant’s impairment or combination of impairments does not meet or equal an impairment 10] the Listing, the fourth step requires the Commissioner to determine whether the claimant h: 11] sufficient “residual functional capacity” to perform her past work; if so, the claimant is not disable and the claim is denied. Id. The claimant has the burden of proving that she is unable 1 perform past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If th claimant meets this burden, a prima facie case of disability is established. Id. Th 15 || Commissioner then bears the burden of establishing that the claimant is not disabled becaus 16 there is other work existing in “significant numbers” in the national or regional economy th 17| claimant can do, either (1) by the testimony of a VE, or (2) by reference to the Medica 18 |, Vocational Guidelines at 20 C.F.R. part 404, subpart P, appendix 2. Lounsburry, 468 F.3d < 19} 1114. The determination of this issue comprises the fifth and final step in the sequentis 20| analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Ci 21] 1995); Drouin, 966 F.2d at 1257. 22 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 24 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activit 25 || during the period from January 27, 2014, the alleged onset date, through June 30, 2014, her dat last insured. [AR at 19.] At step two, the ALJ concluded that through the date last insured plaintiff had the severe impairments of degenerative disc disease of the lumbar spine; and □□□□□ 28 tunnel syndrome of the right wrist, status-post carpal tunnel release surgery. [Id.] At step three 1| the ALJ determined that through the date last insured, plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the impairments in the Listin 3} at 22.] The ALJ further found that through the date last insured, plaintiff retained the residu functional capacity (“RFC’”)° to perform light work as defined in 20 C.F.R. § 404.1567(b):* 5 [I]ncluding lifting up to 20 pounds occasionally and 10 pounds frequently, standing and/or walking up to 6 hours in an 8-hour workday, and sitting up to 6 hours in an 6 8-hour workday, with the following restrictions: she can only occasionally perform postural activities; she must avoid ladders, unprotected heights and moving machinery. 8} [Id.] At step four, based on plaintiffs RFC and the testimony of the VE, the ALJ concluded th: 9] through her date last insured, plaintiff was able to perform her past relevant work as housekeeper. [Id. at 26, 295-96.] Accordingly, the ALJ determined that plaintiff was not disable 11 at any time from the alleged onset date of January 27, 2014, through June 30, 2014, the date la: insured. [Id. at 27.] 13 14 V. 15 THE ALJ’S DECISION 16 Plaintiff contends that the ALJ erred when she failed to properly consider plaintiff 17 subjective symptom testimony. [JS at 4.] As set forth below, the Court agrees with plaintiff an remands for further proceedings. 19 20. 4 * RFC is what a claimant can still do despite existing exertional and nonexertionz limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between step three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in whic the ALJ assesses the claimant's residual functional capacity.” Massachiv. Astrue, 486 F.3d 114¢ 1151 n.2 (9th Cir. 2007) (citation omitted). 24 “ “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carryin 25 of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in thi Category when it requires a good deal of walking or Standing, or when it involves sitting most of th 26 | time with some pushing and pulling of arm or leg controls. To be considered capable of □□□□□□□□□□ a full or wide range of light work, you must have the ability to do substantially all of these activities Ifsomeone can do light work, we determine that he or she can also do sedentary work, unless ther are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. § 404.1567(b). A. LEGAL STANDARD 2 Prior to the ALJ's assessment in this case, Social Security Ruling (“SSR”)° 16-3p went in 3] effect. See SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). SSR 16-3p supersedes SSR 96-7 the previous policy governing the evaluation of subjective symptoms. SSR 16-3p, 2017 W S| 5180304, at*2. SSR 16-3p indicates that “we are eliminating the use of the term ‘credibility’ fro 6 | our sub-regulatory policy, as our regulations do not use this term.” Id. Moreover, “[i]n doing s 7| we clarify that subjective symptom evaluation is not an examination of an individual's character [i]nstead, we will more closely follow our regulatory language regarding symptom evaluation.” Ic 9| Trevizo, 871 F.3d at 678 n.5. Thus, the adjudicator “will not assess an individual’s over. character or truthfulness in the manner typically used during an adversarial court litigation. Tr 11 | focus of the evaluation of an individual's symptoms should not be to determine whether he or st is a truthful person.” SSR 16-3p, 2017 WL 5180304, at *11. The ALJ is instructed to “consid all of the evidence in an individual’s record,” “to determine how symptoms limit ability to perfor 14| work-related activities.” Id. at*2. The Ninth Circuit also noted that SSR 16-3p “makes clear wh: our precedent already required: that assessments of an individual’s testimony by an ALJ al designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that th individual has a medically determinable impairment(s) that could reasonably be expected 1 18 19 ° “SSRs do not have the force of law. However, because they represent the Commissioner 20 interpretation of the agency's regulations, we give them some deference. We will not defer to SSR 4 if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 120 n.1 (9th Cir. 2001) (citations omitted). 22 ° 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 2§ 2016.” See 82 Fed. Reg. 49462, 49468 & n.27, 2017 WL 4790249, 4790249 (Oct. 25, 2017 SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). Other than also updating “citations to reflec 25 [other] revised regulations that became effective on March 27, 2017,” the Administration state: that SSR 16-3p “is otherwise unchanged, and provides guidance about how we evaluat 26 | Statements regarding the intensity, persistence, and limiting effects of symptoms in disabilit claims ....” Id. The Ninth Circuit recently noted that SSR 16-3p is consistent with its pric precedent. Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (SSR 16-3p “makes □□□□ what [Ninth Circuit] precedent already required”). Thus, while SSR 16-3p eliminated the use c 28 the term “credibility,” case law using that term is still instructive in the Court’s analysis. 1|| produce those symptoms,’ and ‘not to delve into wide-ranging scrutiny of the claimant’s charact 2|| and apparent truthfulness.” Trevizo, 871 F.3d at 678 n.5 (citing SSR 16-3p). 3 To determine the extent to which a claimant’s symptom testimony must be credited, tt 4] Ninth Circuit has “established a two-step analysis.” Trevizo, 871 F.3d at 678 (citing Garrison, 7! 5| F.3d at 1014-15). “First, the ALJ must determine whether the claimant has presented □□□□□□□□ 6| medical evidence of an underlying impairment which could reasonably be expected to produc 7| the pain or other symptoms alleged.” Id. (quoting Garrison, 759 F.3d at 1014-15); Treichler 8 | Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter v. Astru 9] 504 F.3d 1028, 1036 (9th Cir. 2007)) (internal quotation marks omitted). If the claimant meets tt 10} first test, and the ALJ does not make a “finding of malingering based on affirmative evidenc 11 thereof’ (Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)), the ALJ must “evalua 12| the intensity and persistence of [the] individual’s symptoms . . . and determine the extent to whic 13] [those] symptoms limit [her] . . . ability to perform work-related activities... .” SSR 16-3p, 207 WL 5180304, at *4. In assessing the intensity and persistence of symptoms, the ALJ mu consider a claimant's daily activities; the location, duration, frequency, and intensity of the pa 16 || orothersymptoms; precipitating and aggravating factors; the type, dosage, effectiveness and sic effects of medication taken to alleviate pain or other symptoms; treatment, other than medicatic 18| received for relief of pain or other symptoms; any other measures used to relieve pain or othe symptoms; and other factors concerning a claimant's functional limitations and restrictions du 20 pain or other symptoms. 20 C.F.R. § 416.929; see also Smolen v. Chater, 80 F.3d 1273, 128: 21| 84 & n.8 (9th Cir. 1996); SSR 16-3p, 2017 WL 5180304, at *4 (the Commisisoner □□□□□□□□□ the entire case record, including the objective medical evidence; an individual's statements . . ; statements and other information provided by medical sources and other persons; and any othe 24 relevant evidence in the individual’s case record.”). 25 Where, as here, plaintiff has presented evidence of an underlying impairment, and the AL 26 | did not make a finding of malingering, the ALJ’s reasons for rejecting a claimant's subjectiv symptom statements must be specific, clear and convincing. Brown-Hunter v. Colvin, 806 F.3 28 | 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (citing Molin 1| v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)); Trevizo, 871 F.3d at 678 (citing Garrison, 7: 2| F.3d 1014-15); Treichler, 775 F.3d at 1102. “General findings [regarding a claimant's credibili are insufficient; rather, the ALJ must identify what testimony is not credible and what eviden 4|| undermines the claimant’s complaints.” Burrell, 775 F.3d at 1138 (quoting Lester, 81 F.3d at 83 (quotation marks omitted). The ALJ’s findings “must be sufficiently specific to allow a □□□□□□□□ court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds ar 7| did not arbitrarily discredit a claimant's testimony regarding pain.” Brown-Hunter, 806 F.3d at 4: 8 (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). A “reviewing cot should not be forced to speculate as to the grounds for an adjudicator’s rejection of a claimant allegations of disabling pain.” Bunnell, 947 F.2d at 346. As such, an “implicit” finding that 11 | plaintiffs testimony is not credible is insufficient. Albalos v. Sullivan, 907 F.2d 871, 874 □□□□ □ 12] 1990) (per curiam). 13 B. THE ALJ’S DECISION 15 Plaintiff contends the ALJ failed to articulate legally sufficient reasons for rejecting plaintiff subjective symptom testimony. [JS at 4-7.] Specifically, she argues that the ALJ offere 17 insufficient specific, clear and convincing reasons for finding that plaintiff's testimony was ni consistent with the medical record. [Id. at 7.] She also submits that the Commissioner regulations “prohibit rejecting subjective pain testimony solely on the basis of objective medic: evidence,” which is the only reason given by the ALJ in her decision. [Id. at 8 (citations omitted) 21|| The Court agrees. 22 First, the ALJ summarized plaintiffs testimony as follows: 23 In connection with [plaintiff's] application for disability insurance benefits, [she] alleged an inability to engage in competitive employment due to a lower back injury 24 causing back pain radiating down her leg, carpal tunnel syndrome, hip pain and right knee pain. .. . Ina Function Report, [plaintiff] indicated that she is “always in 25 pain”, that she has carpal tunnel syndrome affecting the use of her hands, as well as a back injury. She reported that she needs help dressing herself, bathing 26 herself, and that she has difficulty grooming herself due to difficulty reaching and holding on to small items. She reported that she is able to prepare simple meals, and she can do some household chores. She is able to leave her house and drive a Car, she is able to attend doctor's appointments and go grocery shopping and 28 handle her own finances. She estimated that she could lift no more than ten 1 pounds depending on her pain. 2|| [AR at 23 (citing id. at 451-58).] Next, the ALJ stated that plaintiff's statements “concerning tt intensity, persistence and limiting effects of those symptoms are not entirely consistent with th 4| medical evidence and other evidence in the record... .” [Id. at 23.] The ALJ then summarize various medical records regarding plaintiff's back pain and carpal tunnel syndrome dated □□□□□□ 6 || November 2013 and June 2014 as discussed in more detail below. [Id. at 23-24.] Finally, st 7| discounted plaintiff's subjective symptom testimony as follows: 8 Ultimately, after considering the objective medical evidence regarding all of [plaintiff's] physical conditions on or before June 30, 2014, the undersigned finds that the clinical findings simply fail to support the alleged severity of symptoms and degree of limitation. Weighing all the relevant factors, the undersigned concludes 10 that the objective medical evidence on or before June 30, 2014, simply does not warrant any additional limitations beyond those established in the residual functional 11 capacity contained herein. [Id. at 24.] 13 14] C. OBJECTIVE EVIDENCE 1s While a lack of objective medical evidence supporting a plaintiff's subjective complain 16 | cannot provide the only basis to reject a claimant's subjective symptom testimony (Trevizo, 87 F.3d at 679 (quoting Robbins, 466 F.3d at 883)), it is one factor that an ALJ can consider j 18] evaluating symptom testimony. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005 19] (“Although lack of medical evidence cannot form the sole basis for discounting pain testimony, is a factor the ALJ must consider in [her] credibility analysis.”); SSR 16-3p, 2017 WL □□□□□□□ at*5 (“objective medical evidence is a useful indicator to help make reasonable conclusions abot 22 the intensity and persistence of symptoms, including the effects those symptoms may have o 23 | the ability to perform work-related activities for an ad ult’). “The intensity, persistence, and limitin 24 || effects of many symptoms can be clinically observed and recorded in the medical evidence. . 25|| . These findings may be consistent with an individual’s statements about symptoms and the 26 | functional effects. However, when the results of tests are not consistent with other evidence i the record, they may be less supportive of an individual's statements about pain or othe 28 || symptoms than test results and statements that are consistent with other evidence in the record 1 SSR 16-3p, 2017 WL 5180304, at *5. As the Ninth Circuit recently held, “an ALJ’s □□□□ allegation’ that a claimant's testimony is ‘not consistent with the objective medical evidenc without any ‘specific finding in support’ of that conclusion, is insufficient.” Treichler, 775 F.3d 4] 1103 (citation omitted); see Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (AL. statement that plaintiff's testimony regarding the intensity, persistence, and limiting effects of t symptoms was not credible to the extent his testimony is “inconsistent with the above residu 7 functional capacity assessment’ is an insufficient basis for discrediting testimony). 8 Here, after finding that plaintiff's “statements concerning the intensity, persistence ar 9} limiting effects of [her alleged] symptoms are not entirely consistent with the medical evidence ar other evidence in the record for the reasons explained in this decision” [AR at 23], the Al 11 generally summarized the medical evidence she relied on to support that finding. [Id. at 23-2¢ For instance, she noted that plaintiff was seen on December 22, 2013, by U.S. HealthWor! 13 Medical Group, where she presented with complaints of “acute onset of lower back pain th 14 occurred while she was at work” making a bed, in her position as a housekeeper at the Hye Regency. [ld. (citing id. at 565-68).] The ALJ stated that the treating provider reported th plaintiff had an antalgic gait; her posture appeared “uncomfortable”: she exhibited spasms of th paravertebral musculature and restricted range of motion of the lumber spine; her heel-tc 18 || ambulation was normal; her sensation was intact; and her straight leg raising test was □□□□□□□ although with “some increased lower back pain.” [Id. (citing id. at 565).] An x-ray showed minim spur formation, but no fractures, subluxation, spondylosis, or spondylolisthesis. [Id. (citing id. ; 21] 570).] Plaintiff was authorized to return to modified work with restrictions on climbing, changin 22 positions, overhead work, stooping, bending, kneeling, squatting, and lifting over 10 pounds. [lk (citing id. at 568).] 24 The ALJ also discussed plaintiffs December 2, 2013, visit to physical medicine □□□□□□□□□ 25 | Mohammed Amjad Ali Khan M.D., complaining of back pain. [Id. (citing 637-44).] At that tim 26 | (which was a few weeks prior to the incident at the Hyatt Regency), Dr. Khan noted tendernes 27 | in plaintiff's lumbar spine and negative straight leg raising tests. [Id. (citing id. at 642-43).] Nc 28 || mentioned by the ALJ, Dr. Khan also noted that plaintiff's spinal range of motion was limited wit 10 pain and she exhibited positive myofascial trigger points; the ALJ also did not mention that L Khan discussed conservative as well as interventional treatment options, such as epidur injections, and that he ordered an MRI of plaintiffs lumbar spine.’ [Id. at 642-43.] 4 The ALJ next discussed the January 2014 records of George Blankinship, M.D., “a physic 5 || medicine specialist . . . who prescribed Ibuprofen and prednisone.” [Id. at 23 (citing id. at 67 71).] As noted by the ALJ, on January 9, 2014, Dr. Blankinship’s examination found plaintiff he 7 adecreased range of motion and positive straight leg raising, and recommended that she under. 8 alumbar spine MRI. [ld. (citing id. at 670).] The January 18, 2014, MRI revealed mild discogen disease at L4-L5, with moderate central canal stenosis and lateral recess narrowing; mi discogenic disease at L5-S1 with mild central canal stenosis and lateral recess narrowing; ar 11 multilevel bilateral foraminal narrowing most pronounced at L4-S1. [Id. (citing id. at 705-06).] C January 30, 2014, Dr. Blankinship recommended that plaintiff undergo a lumbar epidural stero 13] injection and physical therapy [id. at 23-24 (citing id. at 735-43)], and in February 2014, st 14| received the injection. [Id. at 24 (citing id. at 761-62).] The ALJ noted -- without furth 15 explanation -- that when plaintiff saw her primary care physician on May 23, 2014, plaintiff did n 16 || complain of back pain.® [ld. (citing id. at 815-21).] 17 The ALJ similarly found that the objective medical evidence regarding plaintiff's right wri condition “is not consistent with [plaintiff's] extreme allegations.” [Id. (citing id. at 623).] The AL noted a November 2013 abnormal nerve conduction study that reflected “moderate to sever 20] carpal tunnel syndrome and positive Tinel’s and Phalen’s signs”; she also noted that plainti 21 22 ’ Although the ALJ further noted that there was no improvement in plaintiff's symptoms t 23 January 2014 but that her “clinical presentation appeared to have improved’ [AR at 23], the ALJ citation to pages 3 and 4 of Exhibit 5F [AR at 610-11] relates to plaintiff's treatment for carp: 24 tunnel and does not mention her back issues, let alone reflect an improvement in plaintiff 25|| Clinical presentation.” 26 ° To the extent the ALJ was insinuating that plaintiff's failure to discuss her back pain wit her primary care physician was a reason to discount plaintiff's testimony, the Court disagree: 27 | Plaintiff had physical medicine specialists who were treating her for her back pain; on May 2: 2014, she saw her primary care physician due to complaints of fatigue, dizziness, and sinu 28 | congestion. [AR at 815.] 414 1| underwent right carpal tunnel release surgery on January 29, 2014. [lId. (citing id. at 120-22 The ALJ observed that on June 27, 2014, five months after plaintiff's surgery, an MRI of plaintif 3] right wrist “showed findings suggestive of carpal tunnel syndrome, a tear in the triangular fibr cartilage with mild synovitis, and ‘tiny’ bone cysts.” [Id. (citing id. at 587-91).] She did not provic || any explanation as to how these records were purportedly inconsistent with plaintiff's □□□□□□□□□ symptom testimony. 7 Finally, after reviewing the objective evidence regarding plaintiff's physical conditions « or before June 30, 2014, the ALJ concluded that “the clinical findings simply fail to support th 9] alleged severity of symptoms and degree of limitation.” [Id.] 10 Thus, the ALJ (1) found that plaintiff's testimony concerning the intensity, persistence, ar 11 | limiting effects of her symptoms was “not entirely consistent with the medical evidence and oth 12] evidence in the record” [id. at 23]; (2) generally summarized the medical evidence relating □ plaintiffs back pain and carpal tunnel syndrome as discussed above [id. at 23-24]; and (3) state her conclusion that “the clinical findings simply fail” to support the alleged severity of plaintiff symptoms and limitations. 16 As discussed above, the “ALJ must identify the testimony that [is being discounted], an specify ‘what evidence undermines the claimant's complaints.” Treichler, 775 F.3d at 110 18] (citation omitted) (emphasis added); Brown-Hunter, 806 F.3d at 493. Here, other than her gener: 19] discussion of the medical evidence, the ALJ did not identify the testimony she was discountin 20 and “link that testimony to the particular parts of the record” supporting her determination. Browr 21] Hunter, 806 F.3d at 494. Indeed, the ALJ’s running narrative regarding plaintiff's medical record: while relevant, did not provide “the sort of explanation or the kind of ‘specific reasons’ we mus 23 have in order to review the ALJ’s decision meaningfully, so that we may ensure that the claimant’ testimony was not arbitrarily discredited,” nor can the error be found harmless. Id. at 49 25 || (rejecting the Commissioner’s argument that because the ALJ set out her RFC and summarize the evidence supporting her determination, the Court can infer that the ALJ rejected the plaintiff testimony to the extent it conflicted with that medical evidence, because the ALJ “never identifie 28 || which testimony she found not credible, and never explained which evidence contradicted th< {2 1| testimony”) (citing Treichler, 775 F.3d at 1103, Burrell, 775 F.3d at 1138). In fact, a great deal the above-cited evidence arguably lends support to plaintiff's subjective symptom allegatio: 3] during the time period in question. 4 In short, the ALJ's finding that plaintiff's subjective symptom allegations were not support 5|| by the objective medical evidence was not a specific, clear and convincing reason supported | 6 || substantial evidence for discounting plaintiff's subjective symptom testimony. Even assuming th 7 was a specific, clear and convincing reason, the ALJ’s determination to discount □□□□□□□□□ 8|| testimony for this reason rises or falls with any other grounds given by the ALJ for discreditir plaintiff's allegations. Here, because this was the only reason given by the ALJ for discountir plaintiff's testimony, remand is warranted. 11 12] D. OTHER REASONS FOR DISCOUNTING PLAINTIFF’S TESTIMONY 13 Plaintiff argues that in discounting plaintiff's subjective symptom testimony, the ALJ on 14 | relied on the fact that plaintiff's testimony was not supported by the objective medical evidenc 15] [JS at 8, 10.] Defendant responds that the ALJ “noted that Plaintiff's conservative treatme: 16 | regimen was inconsistent with her allegations of extreme symptoms, as was her reported dai 17 activities.” [Id. at 13 (citing AR at 23-24).] 18 “Long-standing principles of administrative law require [this Court] to review the ALJ’ decision based on the reasoning and factual findings offered by the ALJ -- not post ho rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray \ Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (emphasis added, citatio 22 | omitted); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (“[W]e cannot affirm the decisio of an agency on a ground that the agency did not invoke in making its decision.”). 24 As discussed below, the Court determines that the ALJ did not rely on these grounds fo discounting plaintiffs testimony and, even if she did, she did not provide reasons that were 26 || specific, clear and convincing, and supported by substantial evidence. 27| / 28 || / 13 1 1. Conservative Treatment 2 Defendant argues that the ALJ discounted plaintiff's testimony because her “conservati treatment regimen was inconsistent with her allegations of extreme symptoms.” [JS at 13 (citi 4|| AR at 23-24).] The Court has scoured the ALJ’s decision, however, and finds no such “specif S| clear and convincing” reason set forth by the ALJ. Although the ALJ mentioned that L 6 Blankinship had prescribed Ibuprofen and prednisone to treat plaintiff's back condition, she ¢ 7| not state that such treatment was conservative and, even if she had so stated, she did not in ai way attempt to tie that observation into a reason to discount plaintiff's testimony. Indeed, the Al 9} also noted that Dr. Blankinship had recommended that plaintiff receive a lumbar epidural stero 10 | injection -- which she did. There is also evidence in the record that for some period of time durir 11] the relevant period, and while she was treating with Dr. Blankinship, plaintiff was prescribed □□□□ 12] -- an opioid narcotic pain medication. [See, e.g., AR at 735 (January 30, 2014, treatment note 13 816 (May 23, 2014, treatment note).] 14 Many courts have previously found that strong narcotic pain medications and spin epidural injections are not considered to be “conservative” treatment. See, e.g., Yang v. Barnhai 2006 WL 3694857, at *4 (C.D. Cal. Dec. 12, 2006) (ALJ’s finding that claimant receive 17| conservative treatment was not supported by substantial evidence when claimant □□□□□□□□ physical therapy and epidural injections, and was treated with several pain medications); □□□□□□ 19] v. Colvin, 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) (“It would be difficult to fault Plainti for overly conservative treatment when he has been prescribed strong narcotic pai medications.”); Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (refusin 22 | to characterize treatment with narcotics, steroid injections, trigger point injections, and epidur: injections as conservative); see also Childress v. Colvin, 2014 WL 4629593, at *12 (N.D. Ca Sept. 16, 2014) (‘“[i]t is not obvious whether the consistent use of [a prescribed narcotic] i 25 || ‘conservative’ or in conflict with Plaintiffs pain testimony’). 26 In any event, the Court finds that ALJ did not rely on plaintiff's purportedly “conservative treatment to discount plaintiff's subjective symptom testimony. And, even if she did, in light of th 28 || entire record she did not provide reasons that were specific, clear and convincing, and supporte 14 1|| by substantial evidence. 2 3 a Daily Activities 4 Defendant also argues that the ALJ discounted plaintiffs testimony because her □□□□□□□ daily activities” were “inconsistent with her allegations of extreme symptoms.” [US at 13 (citir 6] AR at 23-24).] Again, after reviewing the ALJ’s decision, the Court does not find this to be reason given by the ALJ to discredit plaintiffs testimony. The only mentions of plaintiff's da activities made by the ALJ were included as part of the ALJ’s summary of plaintiff's □□□□□□□□□ symptoms as presented by plaintiff in her Adult Function Report and also as provided by her so 10 | Joe Lopez, in a Third-Party Function Report: 11 [Plaintiff] reported that she needs help dressing herself, bathing herself, and that she has difficulty grooming herself due to difficulty reaching and holding on to small 12 items. She reported that she is able to prepare simple meals, and she can do some household chores. She is able to leave her house and drive a car, she is able to 13 attend doctor's appointments and go grocery shopping and handle her own finances. 14 15 Mr. Lopez reported that [plaintiff] has some difficulty performing activities of 16 personal care. ... However, he reported that she makes simple meals, and is able to do “some basic” household chores. Mr. Lopez reported that [plaintiff] goes AT outside to attend doctor's appointments, and go to the grocery store. She is able to handle her finances. [He] further reported that she can only walk for 15 minutes 18 before she must rest. 19] [AR at 23-24 (citing id. at 473-81, 503-1 1).] Other than these cursory mentions of plaintiff 20| activities, the ALJ did not in any way clearly state (or even obliquely suggest) that she wa discounting plaintiffs allegations as inconsistent with her daily activities. Neither did she attemr to explain how plaintiff's daily activities were inconsistent with her symptom allegations.° 23 24 ° With respect to Mr. Lopez’ report, the ALJ simply stated that his allegations “do nc 25 establish that [plaintiff] is disabled,” and discounted his lay witness observations because “he i not medically trained to make exacting observations as to dates, frequencies, types and degree 26 | Of medical signs and symptoms, or of the frequency or intensity of unusual moods or mannerisms the accuracy of the allegations is questionable.” [AR at 24.] She also questioned his allegation: because, as plaintiff's son, “he cannot be considered a disinterested third party witness □□□□□ allegations would not tend to be colored by affection for [plaintiff] and a natural tendency to □□□□□ 28 (continued... 15 1 The Court finds that ALJ did not in any way rely on plaintiff's daily activities to discou plaintiff's subjective symptom testimony. And, even if she did, in light of the entire record, she d 3|| not provide reasons that were specific, clear and convincing, and supported by substanti 4|| evidence. 5 6 Vi. ¢ REMAND FOR FURTHER PROCEEDINGS 8 The Court has discretion to remand or reverse and award benefits. Trevizo, 871 F.3d. 9 682 (citation omitted). Where no useful purpose would be served by further proceedings, | 10 | where the record has been fully developed, it is appropriate to exercise this discretion to direct < 11 immediate award of benefits. Id. (citing Garrison, 759 F.3d at 1019). Where there ai outstanding issues that must be resolved before a determination can be made, and it is not cle: from the record that the ALJ would be required to find plaintiff disabled if all the evidence wet 14| properly evaluated, remand is appropriate. See Garrison, 759 F.3d at 1021. 15 In this case, there is an outstanding issue that must be resolved before a fin. determination can be made. In an effort to expedite these proceedings and to avoid ar — OO 18 9(...continued) with the symptoms and limitations [she] alleges.” [Id. at 24-25.] Finally, she noted that h 19| allegations were “simply not consistent” with the evidence. [lId. at 25.] None of these reasons for disregarding Mr. Lopez’ testimony was a valid reason “germane 20] to the witness. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). First, plaintiff's person: relationship with the lay witness is not a valid reason to discount his observations. Diedrich | Berryhill, 847 F.3d 634, 640 (9th Cir. 2017); see also Smolen, 80 F.3d at 1289 (‘The fact that 22|| lay witness is a family member cannot be a ground for rejecting his or her testimony. To th contrary, testimony from lay witnesses who see the claimant every day is of particular value; suc lay witnesses will often be family members.” (citation omitted)). Second, lay witnesses are nc required to have medical training, or to provide exact details of their observations. That is whz makes them “lay” witnesses. See Diedrich, 874 F.3d at 640. Finally, a lack of support from th 25 “overall medical evidence’ is also not a proper basis for disregarding a lay witness’ observation: Diedrich, 847 F.3d at 640 (citation omitted) (“Nor under our law could the ALJ discredit [th 26 || witness's] lay testimony as not supported by medical evidence in the record.”). The fact that la testimony and third-party function reports may offer a different perspective than medical record alone “is precisely why such evidence is valuable at a hearing.” Id. (citing Smolen, 80 F.3d < 1289 (holding that ALJ erred where the ALJ rejected the testimony of claimant’s family member 28 | about claimant’s symptoms because the medical records did not corroborate those symptoms) 16 confusion or misunderstanding as to what the Court intends, the Court will set forth the scope 2|| the remand proceedings. Because the ALJ failed to provide specific, clear and convincit reasons, supported by substantial evidence in the case record, for discounting plaintiff's subjecti 4] symptom testimony, the ALJ on remand, in accordance with SSR 16-3p, shall reassess plaintif subjective allegations and either credit her testimony as true, or provide specific, clear ar convincing reasons, supported by substantial evidence in the case record, for discounting rejecting any testimony. Then, in light of the ALJ’s reevaluation of plaintiff's subjective sympto testimony and the medical and other evidence of record, if warranted, the ALJ shall reasse: plaintiff's RFC and determine at step four, with the assistance of a VE if necessary, wheth 10] plaintiff is capable of performing her past relevant work as a housekeeper as genera performed."° If plaintiff is not so capable, or if the ALJ determines to make an alternative findir 12|| at step five, then the ALJ shall proceed to step five and determine, with the assistance of a V 13], if necessary, whether there are jobs existing in significant numbers in the regional and nation 14 || economy that plaintiff can still perform. / 16) / 17] / 18] / 19] / 20} / 201 22 i 23] / 24) / 25 '° Nothing herein is intended to disrupt the ALJ’s step four findings that plaintiff is unable | 27 || perform her past relevant work as a home care provider, as a Caregiver, or as a cleaner, medic: services, or that she is unable to perform the housekeeper work at a level greater than light wor [AR at 26] 17 1 Vil. 2 CONCLUSION 3 IT IS HEREBY ORDERED that: (1) plaintiffs request for remand is granted; (2) th decision of the Commissioner is reversed; and (3) this action is remanded to defendant fc 5|| further proceedings consistent with this Memorandum Opinion. 6 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and th Judgment herein on all parties or their counsel. 8 This Memorandum Opinion and Order is not intended for publication, nor is intended to be included in or submitted to any online service such as Westlaw or Lexis 10 11] DATED: December \%_, 2019 OR GROG PAUL L. ABRAMS 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18