(SS) Grom v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 DAVID GROM, 10 Case No. 1:18-cv-01361-SKO Plaintiff, 11 v. ORDER ON PLAINTIFF’S SOCIAL 12 SECURITY COMPLAINT ANDREW SAUL, 13 Commissioner of Social Security, 14 Defendant. (Doc. 1) 15 16 _____________________________________/ 17 18 I. INTRODUCTION 19 20 On October 2, 2018, Plaintiff David Grom (“Plaintiff”) filed a complaint under 21 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social 22 Security (the “Commissioner” or “Defendant”) denying his application for disability insurance 23 benefits (“DIB”) and supplemental security income (“SSI”) under Title II of the Social Security Act 24 (the “Act”). The matter is currently before the Court on the parties’ briefs, which were submitted, 25 without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.1 26 /// 27 28 1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 8, 9.) 1 2 On June 25, 2014, Plaintiff protectively filed an application for DIB and SSI payments, 3 alleging he became disabled on December 31, 2012 due to depression. (Administrative Record 4 (“AR”) 129, 172.) Plaintiff was born on May 21, 1965 and was 47 years old as of the alleged onset 5 date. (AR 144.) Plaintiff has a high school education, past work experience as a machine operator, 6 warehouse worker labor stores, construction worker, and van driver, and last worked full-time in 7 approximately 2011. (AR 51–52, 91.) 8 A. Relevant Medical Evidence 9 1. Aspen Family Medical Group of Modesto, Inc. 10 In approximately 2013, Plaintiff established care with Aspen Family Medical Group of 11 Modesto, Inc. (“AFM”). (See AR 464.) On September 15, 2013, AFM2 noted that Plaintiff’s 12 “medication [was] still making [his] teeth grind” and causing him anxiety. (AR 464.) In April 2014, 13 Plaintiff reported “suicidal thoughts” and that he had pain and swelling in his left foot. (AR 455– 14 56.) In an undated note, AFM stated that Plaintiff reported for a follow up on his depression, and 15 reported “some impairment” on his medication. (AR 451.) AFM saw Plaintiff for a “discuss[ion] 16 about depression” on December 8, 2015. (AR 490.) 17 2. Ken Erickson, F.N.P. 18 On July 22, 2014, family nurse practitioner Ken Erickson completed a mental capacity 19 assessment for Plaintiff. (AR 468–70.) Mr. Erickson diagnosed Plaintiff with “major depressive 20 disorder with anxiety.” (AR 468.) Mr. Erickson opined that Plaintiff had moderate impairment in 21 the ability to remember locations and work procedures, understand, remember, and carry out simple 22 or detailed instructions, sustain an ordinary routine with special supervision, work in coordination 23 with others, make simple work-related decisions, interact appropriately with the general public, get 24 along with coworkers or peers without distracting them, maintain socially appropriate behavior, 25 respond appropriately to changes in the work setting, be aware of normal hazards, travel in 26 unfamiliar places, and set realistic goals; and marked limitation in the ability to maintain attention 27 2 The treatment notes submitted from AFM do not indicate what individual evaluated or treated Plaintiff, and simply 28 have boxes for the assigned “MA” to initial. (See, e.g., AR 464.) Thus, this section refers to action taken by the 1 and concentration for extended periods, perform activities within a schedule, complete a normal 2 work day or work week without interruptions from psychologically based symptoms, and perform 3 at a consistent pace. (AR 468–70.) Mr. Erickson also opined Plaintiff would miss three days of 4 work per month. (AR 469.) 5 3. Doctors Medical Center of Modesto 6 Plaintiff was admitted to Doctors Medical Center of Modesto on July 28, 2016 for right- 7 sided hemiparesis. (AR 514.) Internist Kristofer Richter, D.O., noted that Plaintiff underwent a 8 lumbar puncture upon admission, and an MRI of the spine showed lesions in his spinal cord around 9 C3-C4. (AR 514.) Dr. Richter also noted that Plaintiff had “some sort of a demyelinating condition 10 that we do not have an exact diagnosis at discharge.” (AR 514.) Neurologist Jeffrey Levin, M.D., 11 saw Plaintiff for a follow up after his July 28, 2016 procedure. (AR 518–19.) Dr. Levin stated that 12 Plaintiff “presented with a 3-4 day history of sensory changes in his right arm and right leg” but he 13 was “without any significant weakness.” (AR 518.) Dr. Levin also noted that Plaintiff appeared to 14 have some “demyelination” in his spine. (AR 518.) Plaintiff underwent a follow-up cervical spine 15 MRI on July 28, 2016. (AR 642.) Imaging showed advanced disc degeneration, mild central spinal 16 canal stenosis, and severe bilateral neural foraminal stenosis. (AR 642.) Later imaging showed 17 severe discogenic disease. (AR 531.) Plaintiff was diagnosed with cervical myelopathy. (AR 520.) 18 On August 1, 2016, Plaintiff was discharged, and Dr. Levin noted that Plaintiff “still complains of 19 some numbness in his right arm and leg” and should follow up in the next 6-8 weeks. (AR 560.) 20 4. Satish Sharma, M.D. 21 On January 4, 2017, internist Satish Sharma completed an Internal Medicine Evaluation after 22 examining Plaintiff. (AR 694–703.) Dr. Sharma noted that Plaintiff’s complaints included 23 numbness in the right arm, neck pain, low back pain, syncopal episodes, and depression. (AR 700.) 24 Dr. Sharma diagnosed Plaintiff with neck and back pain with intermittent radicular pain upper 25 extremities, numbness in the right arm, cervical radiculopathy, West Nile virus, posttussive syncope, 26 and depression. (AR 702.) Dr. Sharma opined that Plaintiff could push, pull, lift and carry 20 27 pounds occasionally and 10 pounds frequently, walk, sit and/or stand for 6 hours of an 8-hour 28 workday, stoop, kneel crouch and crawl occasionally, should not drive, operate heavy machinery or 1 work at unprotected heights, and had limitations in feeling objects with his right hand. (AR 697, 2 702–03.) 3 5. Patricia Spivey, Psy.D. 4 On November 24, 2014, psychologist Patricia Spivey completed a Mental Status Disability 5 Report after examining Plaintiff. (AR 473–75.) Dr. Spivey noted that Plaintiff reported he had 6 depression and took medication for it, had been divorced for ten years and is now homeless. (AR 7 473.) Dr. Spivey stated Plaintiff had four DUIs in the past, and has been sober since his last DUI. 8 (AR 473.) Dr. Spivey opined that Plaintiff had no limitation in his ability to follow simple or 9 complex instructions, maintain adequate pace or persistence, and communicate effectively in 10 writing; mild limitation in his ability to maintain adequate attention/concentration, adapt to changes 11 in job routine, and verbally communicate effectively; moderate limitation in his ability to withstand 12 the stress of a routine work day and interact appropriately with others, and marked limitation in his 13 ability to maintain emotional stability. (AR 475.) 14 6. State Agency Physicians 15 On December 2, 2014, C. Bullard, M.D. a Disability Determinations Service medical 16 consultant, assessed the severity of Plaintiff’s physical impairments and determined that Plaintiff’s 17 physical impairments were non-severe. (AR 121.) Upon reconsideration, on March 24, 2015, 18 another Disability Determinations Service medical consultant, A. Nasrabadi, M.D., affirmed Dr. 19 Bullard’s findings. (AR 149.) 20 On December 26, 2014, R. Ferrell, M.D., a Disability Determinations Service medical 21 consultant, assessed the severity of Plaintiff’s mental impairments. (See AR 124.) In assessing 22 Plaintiff’s mental residual functional capacity (RFC),3 Dr. Ferrell opined that Plaintiff was 23 moderately limited in his ability to maintain attention and concentration, perform activities within a 24 25 3 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 26 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 27 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 28 evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable 1 schedule, accept instructions, get along with coworkers, maintain socially appropriate behavior, 2 respond appropriately to changes, and set realistic goals. (AR 124–25.) Dr. Ferrell further stated 3 that Plaintiff had no limitation in any other area. (AR 124–25.) 4 Upon reconsideration, on March 27, 2015, another Disability Determinations Service 5 medical consultant, E. Aquino-Caro, M.D., affirmed Dr. Ferrell’s findings as to the severity of 6 Plaintiff’s impairments and his mental RFC. (AR 151–53.) 7 B. Administrative Proceedings 8 The Commissioner denied Plaintiff’s application for benefits initially on January 2, 2015, 9 and again on reconsideration on March 27, 2015. (AR 172–76, 179–84.) On May 11, 2015, 10 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 186–87.) 11 On December 1, 2016, Plaintiff appeared without counsel and testified briefly before an 12 ALJ as to his alleged disabling conditions. (AR 79–114.) Plaintiff testified he became “disabled” 13 in approximately 2012 due to depression, as he was homeless and “wanted to commit suicide[.]” 14 (AR 94.) Plaintiff stated that in approximately August 2016, he had a back injury that required 15 hospitalization and surgery. (AR 95.) Plaintiff testified that with the resulting back and neck pain, 16 he is only able to walk about ten minutes at a time, or a total of an hour and a half in a day, and 17 stand about fifteen minutes at a time and an hour and a half in a day. (AR 99.) Plaintiff stated he 18 does not handle stress well but was not getting mental health treatment. (AR 102.) 19 A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as a machine 20 operator, Dictionary of Occupational Titles (DOT) code 699.682-018, which was medium work 21 with a specific vocational preparation (SVP)4 of 5; a warehouse worker, laborer stores, DOT code 22 922.687-058, which was medium work with a SVP of 2; a construction worker, DOT code 869.664- 23 014, which was medium work with a SVP of 4; and a van driver, DOT code 913.663-018, which 24 was light work with a SVP of 3. (AR 104–06.) The ALJ asked the VE to consider a person of 25 Plaintiff’s age, education, and with his work background. (AR 106.) The VE was also to assume 26 4 Specific vocational preparation (SVP), as defined in DOT, App. C, is the amount of lapsed time required by a typical 27 worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). 28 Jobs in the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest 1 this person was able to lift and carry twenty pounds frequently, sit for six hours of an eight-hour 2 workday, stand and/or walk for six hours of an eight-hour workday, precluded from climbing 3 ladders, ropes, and scaffolds, precluded from working around unprotected heights and hazardous 4 machinery, limited to occasional climbing of ramps and stairs, occasional balancing, stooping, 5 kneeling, crouching and crawling, able to perform simple, repetitive tasks, and limited to no more 6 than occasional interaction with supervisors co-workers, and the public. (AR 106.) The VE testified 7 that such a person could not perform Plaintiff’s past relevant work. (AR 109.) The VE testified 8 such a person could perform other light, unskilled, SVP 2 jobs in the national economy, however, 9 including: assembler, DOT code 712.687-010, with approximately 330,000 jobs available in the 10 national economy; cleaner, DOT code 323.687-014, with approximately 560,000 jobs available; and 11 packing line worker, DOT code 753.687-038, with approximately 310,000 jobs available. (AR 109.) 12 In a second hypothetical, the ALJ asked the VE to consider an individual with the limitations 13 described in the first hypothetical except that the person is able to lift and carry ten pounds 14 frequently, and is able to sit for six hours and stand/walk for two hours of an eight-hour workday. 15 (AR 109.) The VE testified that such a person could not perform Plaintiff’s past relevant work but 16 could perform the assembler job, and could perform the job of a nut sorter, DOT code 521.687-086, 17 with approximately 17,000 jobs available, and almond blancher, DOT code 521.687-010, with 18 approximately 800 jobs available. (AR 110.) 19 C. The ALJ’s Decision 20 In a decision dated June 1, 2017, the ALJ found that Plaintiff was not disabled, as defined 21 by the Act. (AR 58–72.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 22 § 404.1520. (AR 60–71.) The ALJ decided that Plaintiff had not engaged in substantial gainful 23 activity since December 31, 2012, the alleged onset date (step one). (AR 60.) At step two, the ALJ 24 found that Plaintiff had the following severe impairments: “cervical spine degenerative disc disease 25 and cervical myelopathy”; “thoracic spine degenerative disc disease”; seizures; “post tussive 26 syncope”; “positivity for West Nile virus”; depression; and anxiety. (AR 61.) The ALJ found that 27 Plaintiff did not have an impairment or combination of impairments that met or medically equaled 28 one of the Listings (step three). (AR 62.) 1 The ALJ assessed Plaintiff’s RFC and applied the RFC assessment at steps four and five. 2 See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three to step four, we assess your residual 3 functional capacity … We use this residual functional capacity assessment at both step four and step 4 five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff retained the 5 RFC: 6 to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can lift and carry 20 pounds occasionally and 10 pounds frequently. He can sit for 7 about six hours of an eight-hour workday. [Plaintiff] cannot climb ladders, ropes, and scaffolds. He cannot work around unprotected heights and hazardous 8 machinery. [Plaintiff] can occasionally balance, stoop, kneel, crouch, crawl, and 9 climb ramps and stairs. He can perform simple repetitive tasks. [Plaintiff] can have no more than occasional interaction with supervisors, co-workers, and the public. 10 (AR 63.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 11 to cause the alleged symptoms[,]” he rejected Plaintiff’s subjective testimony as “not entirely 12 consistent with the medical evidence and other evidence in the record[.]” (AR 65.) At step five, 13 the ALJ found that Plaintiff could not perform any past relevant work but that jobs exist in 14 significant numbers in the national economy that Plaintiff could perform. (AR 69–71.) 15 Plaintiff sought review of this decision before the Appeals Council, which denied review on 16 May 25, 2018. (AR 6–11.) Therefore, the ALJ’s decision became the final decision of the 17 Commissioner. 20 C.F.R. § 404.981. 18 III. LEGAL STANDARD 19 A. Applicable Law 20 An individual is considered “disabled” for purposes of disability benefits if he or she is 21 unable “to engage in any substantial gainful activity by reason of any medically determinable 22 physical or mental impairment which can be expected to result in death or which has lasted or can 23 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 24 However, “[a]n individual shall be determined to be under a disability only if [her] physical or 25 mental impairment or impairments are of such severity that [s]he is not only unable to do [her] 26 previous work but cannot, considering [her] age, education, and work experience, engage in any 27 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 28 “The Social Security Regulations set out a five-step sequential process for determining 1 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 2 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided the 3 following description of the sequential evaluation analysis: 4 In step one, the ALJ determines whether a claimant is currently engaged in substantial 5 gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and 6 evaluates whether the claimant has a medically severe impairment or combination of impairments. 7 If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the 8 impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 9 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If not, the ALJ 10 proceeds to step four and assesses whether the claimant is capable of performing her past relevant 11 work. If so, the claimant is not disabled. If not, the ALJ proceeds to step five and examines whether 12 the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national 13 economy. If so, the claimant is not disabled. If not, the claimant is disabled. Burch v. Barnhart, 14 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or ‘not disabled’ at any 15 step in the sequence, there is no need to consider subsequent steps.” Tackett, 180 F.3d at 1098 16 (citing 20 C.F.R. § 404.1520). 17 “The claimant carries the initial burden of proving a disability in steps one through four of 18 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 19 1989)). “However, if a claimant establishes an inability to continue her past work, the burden shifts 20 to the Commissioner in step five to show that the claimant can perform other substantial gainful 21 work.” Id. (citing Swenson, 876 F.2d at 687). 22 B. Scope of Review 23 “This court may set aside the Commissioner’s denial of disability insurance benefits [only] 24 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in the 25 record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is defined 26 as being more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari, 253 F.3d 27 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way, substantial 28 1 evidence is such relevant evidence as a reasonable mind might accept as adequate to support a 2 conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 3 “This is a highly deferential standard of review …” Valentine v. Comm’r of Soc. Sec. 4 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 5 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 6 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the 7 evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 F.3d at 8 1156 (citations omitted) (“If the evidence is susceptible to more than one rational interpretation, the 9 court may not substitute its judgment for that of the Commissioner.”). 10 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a 11 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 12 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, 13 weighing both evidence that supports and evidence that detracts from the [Commissioner’s] 14 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 15 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 16 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 17 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 18 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti, 19 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). “[T]he 20 burden of showing that an error is harmful normally falls upon the party attacking the agency’s 21 determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 22 IV. DISCUSSION Plaintiff contends that the ALJ erred in evaluating Plaintiff’s physical symptom statements 23 24 and mental symptom statements and failed to account for all of Plaintiff’s limitations in the RFC 25 assessment. (See Doc. 21 at 6.) The Commissioner responds that the ALJ properly evaluated 26 Plaintiff’s credibility and formulated Plaintiff’s RFC. (Doc. 22 at 3–11.) For the reasons stated 27 28 1 2 symptom statements, and will remand the case on that basis. 3 A. The ALJ Erred in Her Evaluation of Plaintiff’s Physical Symptom Statements. 4 1. Legal Standard 5 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 6 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 7 the ALJ must determine whether the claimant has presented objective medical evidence of an 8 underlying impairment that could reasonably be expected to produce the pain or other symptoms 9 10 alleged. Id. The claimant is not required to show that her impairment “could reasonably be expected 11 to cause the severity of the symptom [he] has alleged; [he] need only show that it could reasonably 12 have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 13 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence of malingering, the ALJ 14 can only reject the claimant’s testimony about the severity of the symptoms if he gives “specific, 15 clear and convincing reasons” for the rejection. Id. As the Ninth Circuit has explained: 16 The ALJ may consider many factors in weighing a claimant’s credibility, including 17 (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation 18 for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or 19 inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported 20 by substantial evidence, the court may not engage in second-guessing. 21 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 22 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009); 20 C.F.R. § 404.1529. 23 Other factors the ALJ may consider include a claimant’s work record and testimony from 24 physicians and third parties concerning the nature, severity, and effect of the symptoms of which 25 he complains. Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 26 The clear and convincing standard is “not an easy requirement to meet” and it “is the most 27 demanding [standard] required in Social Security cases.” Garrison, 759 F.3d at 1015 (citation 28 omitted). “General findings are insufficient” to satisfy this standard. Burrell v. Colvin, 775 F.3d 1 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 2 “[R]ather, the ALJ must identify what testimony is not credible and what evidence undermines 3 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); see, e.g., Vasquez v. Astrue, 572 4 F.3d 586, 592 (9th Cir. 2008) (“To support a lack of credibility finding, the ALJ [is] required to 5 ‘point to specific facts in the record which demonstrate that [the claimant] is in less pain than she 6 claims.’” (quoting Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)); cf. Burrell, 775 F.3d at 7 1138 (stating that the Ninth Circuit’s “decisions make clear that [courts] may not take a general 8 finding . . . and comb the administrative record to find specific” support for the finding). 9 2. Analysis 10 The ALJ found Plaintiff’s “medically determinable impairments could reasonably be 11 expected to cause the alleged symptoms.” (AR 65.) The ALJ also found that “[Plaintiff’s] 12 statements concerning the intensity, persistence and limiting effects of these symptoms are not 13 entirely consistent with the medical evidence and other evidence in the record[.]” (AR 65.) Since 14 the ALJ found Plaintiff’s “medically determinable impairments could reasonably be expected to 15 cause the alleged symptoms,” the only remaining issue is whether the ALJ provided “specific, clear 16 and convincing reasons” for her adverse credibility finding. See Vasquez, 572 F.3d at 591. 17 The ALJ found that Plaintiff’s symptom statements as to his physical impairments were less 18 than credible because they were inconsistent with the objective medical evidence and the medical 19 opinion evidence. (AR 65–70.) Plaintiff contends that the ALJ failed to properly evaluate his 20 physical symptom statements. (Doc. 21 at 6.) The Court agrees; the ALJ erred in discounting 21 Plaintiff’s credibility as to his symptoms of physical impairments, and that error was not harmless. 22 Plaintiff testified that after his 2016 back injury and surgery, with the resulting back and 23 neck pain, he is only able to walk about ten minutes at a time, or a total of an hour and a half in a 24 day, and stand about fifteen minutes at a time or an hour and a half in a day. (AR 95, 99.) He further 25 testified that he is still numb on the right side of his body, has pain in his pelvic area, and he walks 26 with a limp. (AR 95–96.) The ALJ discounted Plaintiff’s allegations regarding the severity of his 27 physical symptoms because they were inconsistent with the objective medical evidence and opinion 28 evidence. (AR 65, 67–68.) 1 The Court finds that neither reason offered by the ALJ constitutes a clear and convincing 2 reason to discredit Plaintiff’s physical symptom statements. First, as to the alleged inconsistency 3 with the opinion evidence, the ALJ stated that Plaintiff’s allegations of physical symptoms “are not 4 consistent with medical opinions that suggest that [Plaintiff] has considerable work-related 5 abilities,” namely, the opinions of the state agency physicians and Dr. Sharma. (AR 67.) However, 6 the ALJ does not articulate which of Plaintiff’s statements are contradicted by which parts of the 7 opinions of the state agency physicians and Dr. Sharma. The ALJ does not even specifically 8 mention any statement Plaintiff gave during his testimony that she finds to be not credible. This is 9 required of the ALJ because, without that specification, the Court is left to speculate as to which 10 statements the ALJ intended to discount and how they are undermined by the evidence, which the 11 Court may not do. See Brown-Hunter v. Colvin, 806 F.3d 487, 494–95 (9th Cir. 2015) (“We cannot 12 review whether the ALJ provided specific, clear and convincing reasons for rejecting [claimant]’s 13 pain testimony where, as here, the ALJ never identified which testimony she found not credible, and 14 never explained which evidence contradicted that testimony . . . In sum, we cannot substitute our 15 conclusions for the ALJ’s, or speculate as to the grounds for the ALJ’s conclusions.”). This is 16 highlighted by the fact that the ALJ found that Plaintiff’s testimony was contradicted by the state 17 agency physicians’ opinions, thus Plaintiff’s testimony was untrustworthy, but then found that the 18 state agency physicians’ opinions were unsupported and entitled to little weight. (AR 67.) Thus, 19 the Court finds this is not a valid clear and convincing reason to discount Plaintiff’s credibility. 20 As to the alleged inconsistency with the objective medical evidence, the Court finds this is 21 not a valid clear and convincing reason to discount Plaintiff’s credibility either. As with the ALJ’s 22 discussion of the medical opinions, the ALJ’s decision provides little to no guidance as to which 23 disabling effects the ALJ believes to be undermined by which aspects of the objective medical 24 evidence in the record. As stated above, to be clear and convincing, the ALJ must specify which of 25 the claimant’s complaints are contradicted by which clinical observations, and the ALJ failed to do 26 that here. See Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) (where there is no evidence 27 of malingering, “the ALJ must give ‘specific, clear, and convincing reasons for rejecting’ the 28 testimony by identifying ‘which testimony [the ALJ] found not credible’ and explaining ‘which 1 evidence contradicted that testimony’”) (quoting Brown–Hunter, 806 F.3d at 489, 494); Regennitter 2 v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999) (holding that an ALJ’s 3 determination that a claimant was not credible because his “complaints are ‘inconsistent with 4 clinical observations’ . . . . could satisfy the requirement of a clear and convincing reason for 5 discrediting a claimant’s testimony, except that the ALJ did not specify what complaints are 6 contradicted by what clinical observations.”) Further, the treatment notes mentioned by the ALJ do 7 not appear to support the ALJ’s conclusion that the record contains mostly “mild findings” as to 8 Plaintiff’s physical impairments, and appear to support a contrary conclusion. (See, e.g., AR 65 9 (noting that Plaintiff had nonspecific focal hyperintense lesion in the spinal cord, myelinating discs, 10 “advanced” disc degeneration, central spinal canal stenosis, “severe” bilateral neural foraminal 11 stenosis, “severe” discogenic disease, “moderate” ventral spinal cord compression, and upper 12 cervical demyelination.)) 13 In sum, the ALJ failed to sufficiently specify which specific statements by Plaintiff were 14 contradicted by which specific parts of the record, and sufficiently explain how they are 15 contradictory. Thus, the Court cannot find that the reasons offered by the ALJ for discounting 16 Plaintiff’s physical symptom statements were valid, clear and convincing. See Brown–Hunter, 806 17 F.3d at 494. The Court will remand the case on that basis for the ALJ to reevaluate Plaintiff’s 18 symptom statements and reformulate Plaintiff’s RFC, if necessary. 19 B. The ALJ’s Error Was Not Harmless 20 The Court now turns to the analysis of whether this error by the ALJ was harmless. The 21 Ninth Circuit “ha[s] long recognized that harmless error principles apply in the Social Security Act 22 context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. 23 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)); see also Garcia v. Comm’r of Soc. Sec., 768 F.3d 24 925, 932 n.10 (9th Cir. 2014) (stating that the harmless error analysis applies where the ALJ errs by 25 not discharging their duty to develop the record). As such, “the court will not reverse an ALJ’s 26 decision for harmless error.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citing 27 Robbins, 466 F.3d at 885). 28 1 An error is harmless “where it is inconsequential to the ultimate nondisability 2 determination.” Molina, 674 F.3d at 1115 (citations omitted); see also Treichler v. Comm’r of Soc. 3 Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (stating that an error is also harmless “‘if the 4 agency’s path may reasonably be discerned,’ even if the agency ‘explains its decision with less than 5 ideal clarity’” (quoting Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 497 (2004)). “In 6 other words, in each case [courts] look at the record as a whole to determine whether the error alters 7 the outcome of the case.” Molina, 674 F.3d at 1115. “[T]he nature of [the] application” of the 8 “harmless error analysis to social security cases” is “fact-intensive―‘no presumptions operate’ and 9 ‘[courts] must analyze harmlessness in light of the circumstances of the case.’” March v. Colvin, 10 792 F.3d 1170, 1172 (9th Cir. 2015) (quoting Molina, 674 F.3d at 1121). “[T]he burden of showing 11 that an error is harmful normally falls upon the party attacking the agency’s determination.” 12 Shinseki, 556 U.S. at 409 (citations omitted). 13 Here, the Commissioner does not contend that any error by the ALJ in evaluating Plaintiff’s 14 credibility was harmless, and the record establishes that the ALJ’s error was not harmless. The 15 Court agrees with Plaintiff that if the ALJ had credited Plaintiff’s physical symptom statements 16 regarding certain functional abilities and included appropriate limitations in the RFC, that may have 17 changed the disability determination. (See Doc. 21 at 12–13.) This is especially true here, where 18 Plaintiff alleged fairly significant limitations, including that he could only walk or sit for limited 19 periods of time throughout the day. (See AR 95, 99.) Thus, the error was not “inconsequential to 20 the ultimate nondisability determination,” see Molina, 674 F.3d at 1115, and was not harmless. 21 C. The ALJ’s Error Warrants Remand for Further Proceedings 22 The Commissioner and Plaintiff request that if the ALJ’s decision is reversed, the Court 23 remand the case to the Commissioner for further proceedings, as opposed to awarding benefits. 24 (Doc. 21 at 13–14; Doc. 22 at 11 n.4.) The Court agrees with Plaintiff that “the record requires 25 26 further development,” and will remand the case the Commissioner to allow the ALJ to re-assess 27 Plaintiff’s credibility and incorporate any necessary limitations in the RFC. (See Doc. 21 at 14.) 28 Where the ALJ commits an error and that error is not harmless, the “ordinary … rule” is “to 1 2 (citations omitted). The Ninth Circuit recognized a limited exception to this typical course where 3 courts “remand[] for an award of benefits instead of further proceedings.” Id. at 1100–01 (citations 4 omitted); see also id. at 1100 (noting that this exception is “sometimes referred to as the ‘credit-as- 5 true’ rule”). In determining whether to apply this exception to the “ordinary remand rule,” the court 6 must determine, in part, whether (1) “the record has been fully developed;” (2) “there are 7 outstanding issues that must be resolved before a determination of disability can be made;” and (3) 8 “further administrative proceedings would be useful.” Id. at 1101 (citations omitted). As to the last 9 10 inquiry, additional “[a]dministrative proceedings are generally useful where the record has not been 11 fully developed, there is a need to resolve conflicts and ambiguities, or the presentation of further 12 evidence . . . may well prove enlightening in light of the passage of time.” Id. (citations omitted). 13 Ultimately, “[t]he decision whether to remand a case for additional evidence or simply to award 14 benefits is in [the court’s] discretion.” Swenson, 876 F.2d at 689 (citation omitted). 15 Here, the Court finds that the “credit-as-true” exception to the “ordinary remand rule” is 16 inapplicable because additional administrative proceedings would be useful. If the ALJ changes her 17 18 evaluation of Plaintiff’s subjective complaints, she should incorporate any warranted additional 19 limitations in the RFC. Conversely, there may be specific, clear and convincing reasons the ALJ 20 can offer for discounting the testimony. See Voisard v. Berryhill, No. 2:17-CV-1023-EFB, 2018 21 WL 4488474, at *5 (E.D. Cal. Sept. 19, 2018) (“That the ALJ failed to provide sufficient reasons 22 for discounting plaintiff’s subjective testimony in this instance does not compel a finding that he is 23 unable to do so.”). Even if the ALJ decides to credit as true some or all of Plaintiff’s symptom 24 25 statements and adjust her RFC determination for Plaintiff, the ALJ may still conclude that Plaintiff 26 is not disabled--either because he has the RFC to perform the requirements of his past relevant work 27 or because he has the RFC to perform the requirements of other work that exists in significant 28 1 2 “outstanding issue[]” before a proper disability determination can be made. See Varney v. Sec’y of 3 Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988). On remand, the ALJ should 4 reevaluate Plaintiff’s symptom testimony and address any necessary changes to the RFC 5 determination. If the ALJ again discounts Plaintiff’s subjective symptoms, she can then provide an 6 adequate discussion of the specific testimony she is discounting and the specific evidence that 7 contradicts that testimony. See Payan v. Colvin, 672 F. App’x 732, 733 (9th Cir. 2016). The ALJ 8 must also reevaluate her conclusions at Steps Four and Five of the disability determination in light 9 10 of any changes to Plaintiff’s RFC. 11 Based on the foregoing, the Court will remand this case for further proceedings. 12 D. The Court Declines to Determine Plaintiff’s Remaining Assertions of Error 13 As the Court finds that remand is appropriate for the ALJ to reconsider Plaintiff’s symptom 14 statements regarding his physical impairments, the Court does not determine Plaintiff’s additional 15 assertions of error regarding the ALJ’s credibility determination related to Plaintiff’s mental 16 symptom statements and her formulation of the RFC. (See Doc. 21 at 10–12); cf. Newton v. Colvin, 17 18 No. 2:13-cv-2458-GEB-EFB, 2015 WL 1136477, at *6 n.4 (E.D. Cal. Mar. 12, 2015) (“As the 19 matter must be remanded for further consideration of the medical evidence, the court declines to 20 address plaintiff’s remaining arguments”); Willmett ex rel. A.P. v. Astrue, No. 2:10-cv-01201 KJN, 21 2011 WL 3816284, at *1 (E.D. Cal. Aug. 25, 2011) (“Because this legal error warrants remanding 22 this matter for further proceedings, the undersigned does not reach the remainder of [the] plaintiff’s 23 arguments seeking reversal of the ALJ’s and Appeals Council’s decisions.”). 24 25 V. CONCLUSION AND ORDER 26 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 27 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further 28 proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter judgment in 1 favor of Plaintiff David Grom and against Defendant Andrew Saul, Commissioner of Social 2 Security. 3 IT IS SO ORDERED. 4 Sheila K. Oberto 5 Dated: May 18, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28