(SS) Dempster v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARC A. DEMPSTER, Case No. 2:21-cv-01393-JDP (SS) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND 13 v. DENYING COMMISSIONER’S MOTION FOR SUMMARY JUDGMENT 14 KILOLO KIJAKZI, Acting Commissioner of Social Security ECF Nos. 16 & 21 15 Defendant. 16 17 Plaintiff challenges the final decision of the Commissioner of Social Security 18 (“Commissioner”) denying his application for a period of disability and Disability Insurance 19 Benefits (“DIB”) under Title II of the Social Security Act. Both parties have moved for summary 20 judgment. ECF Nos. 16 & 21. For the reasons discussed below, plaintiff’s motion for summary 21 judgment is granted, the Commissioner’s is denied, and this matter is remanded for further 22 proceedings. 23 Standard of Review 24 An Administrative Law Judge’s (“ALJ”) decision denying an application for disability 25 benefits will be upheld if it is supported by substantial evidence in the record and if the correct 26 legal standards were applied. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 27 2006). “‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance; it 28 is such relevant evidence as a reasonable person might accept as adequate to support a 1 conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 “The ALJ is responsible for determining credibility, resolving conflicts in medical 3 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 4 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 5 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 6 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court will not affirm on 7 grounds upon which the ALJ did not rely. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) 8 (“We are constrained to review the reasons the ALJ asserts.”). 9 A five-step sequential evaluation process is used in assessing eligibility for Social 10 Security disability benefits. Under this process the ALJ is required to determine: (1) whether the 11 claimant is engaged in substantial gainful activity; (2) whether the claimant has a medical 12 impairment (or combination of impairments) that qualifies as severe; (3) whether any of the 13 claimant’s impairments meet or medically equal the severity of one of the impairments in 20 14 C.F.R., Pt. 404, Subpt. P, App. 1; (4) whether the claimant can perform past relevant work; and 15 (5) whether the claimant can perform other specified types of work. See Barnes v. Berryhill, 895 16 F.3d 702, 704 n.3 (9th Cir. 2018). The claimant bears the burden of proof for the first four steps 17 of the inquiry, while the Commissioner bears the burden at the final step. Bustamante v. 18 Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). 19 Background 20 Plaintiff filed an application for DIB on December 27, 2018, alleging disability beginning 21 June 4, 2018. Administrative Record (“AR”) 179-85. After his application was denied initially 22 and upon reconsideration, plaintiff appeared and testified at a hearing before an ALJ. AR 15-55, 23 66, 78. On September 25, 2020, the ALJ issued a decision finding that plaintiff was not disabled. 24 AR 83-104. Specifically, the ALJ found that: 25 1. The claimant last met the insured status requirements of the Social 26 Security Act on March 31, 2020. 27 * * * 28 1 2. The claimant did not engage in substantial gainful activity during the period from his amended alleged onset date of June 4, 2018, 2 through his date last insured of March 31, 2020. 3 * * * 4 3. Through the date last insured, the claimant had the following 5 severe impairments: herniated disc of the cervical spine with myelopathy, angina, and obstructive sleep apnea. 6 7 * * * 8 4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically 9 equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 10 11 * * * 12 5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the 13 residual functional capacity to perform light work as defined in 20 CFR 404.1567(b), except he cannot reach overhead, bilaterally; he 14 can push and/or pull with his left, non-dominant, upper extremity 15 occasionally; and, he can handle and finger frequently with his left, non-dominant, upper extremity. 16 * * * 17 6. Through the date last insured, the claimant was unable to perform 18 any past relevant work. 19 * * * 20 7. The claimant was born on February 15, 1975 and was 45 years old, 21 which is defined as a younger individual age 18-49, on the date last insured. 22 23 8. The claimant has at least a high school education. 24 9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a 25 framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills. 26 27 10. Through the date last insured, considering the claimant’s age, education, work experience, and residual functional capacity, there 28 were jobs that existed in significant numbers in the national 1 economy that the claimant could have performed. 2 * * * 3 11. The claimant was not under a disability, as defined in the Social 4 Security Act, at any time from March 15, 2014, the alleged onset date, through March 31, 2020, the date last insured. 5 6 AR 89-100 (citations to the code of regulations omitted). 7 Plaintiff requested review by the Appeals Council, which denied the request. AR 1-9. He 8 now seeks judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3). 9 Analysis 10 Plaintiff advances two primary arguments. First, he argues that the ALJ improperly found 11 his mental impairments to be non-severe. ECF No. 16-1 at 11-13 .1 Second, he argues that the 12 ALJ discounted his subjective symptom testimony without providing clear-and-convincing 13 reasons for doing so. Id. at 14-18. I agree that the ALJ failed to provide clear and convincing 14 reasons for rejecting plaintiff’s subjective symptom testimony, and grant summary judgment for 15 plaintiff on that basis. 16 At his hearing, plaintiff testified that his herniated disc prevents him from remaining in 17 one position for more than fifteen minutes without severe neck pain and left arm numbness. 18 AR 29. He often drops relatively light items and cannot lift anything of significant weight due to 19 weakness and numbness in his left arm. AR 30. In his written testimony, he alleged that he 20 experiences severe pain “24 hours a day,” that he has numbness in his arm, pain in his shoulder, 21 shortness of breath, chest pain, fatigue, and headaches. AR 223. He added that even quarter-mile 22 walks to the grocery store require him to “stop many times for rest because of severe chest pains.” 23 AR 223. He alleges that these symptoms have prevented him from holding a full-time job. AR 24 1 Plaintiff also contends—as a third argument—that the ALJ’s step-five findings were not 25 supported by substantial evidence. ECF No. 16-1 at 13-14. However, because this argument is predicated entirely on the merits of his first argument, it is better read as an argument as to why 26 the ALJ’s purported error at step two is not harmless. Id. (arguing that, because plaintiff’s 27 “mental impairments are ‘severe’ as defined in the regulations, his resulting limitations should have been included in the ALJ’s RFC finding and vocational hypothetical”). Because I do not 28 reach plaintiff’s first argument, I decline to reach this argument. 1 32-33 (explaining that he tried to work at McDonalds but was unable to stand for a full shift and 2 that he tried to work at a photo lab but couldn’t sit for a full shift). 3 At steps two and three, the ALJ found that plaintiff had a herniated disc of the cervical 4 spine with myelopathy, angina, and obstructive sleep apnea, and she found that these physical 5 impairments were severe. AR 89-90. She then found that plaintiff retained the residual 6 functional capacity (“RFC”) to perform “light work . . . except he cannot reach overhead, 7 bilaterally; he can push and/or pull with his left, non-dominant, upper extremity occasionally; 8 and, he can handle and finger frequently with his left, non-dominant, upper extremity.” AR 95.2 9 She reached this conclusion by finding that plaintiff’s “statements concerning the intensity, 10 persistence, and limiting effects of [his] symptoms are not entirely consistent with the medical 11 evidence and other evidence in the record for the reasons explaine d in this decision.” AR 96. 12 In the Ninth Circuit, courts follow a “two-step analysis for determining the extent to 13 which a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 14 678 (9th Cir. 2017). “‘First, the ALJ must determine whether the claimant has presented 15 objective medical evidence of an underlying impairment which could reasonably be expected to 16 produce the pain or other symptoms alleged.’” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 17 1014-15 (9th Cir. 2014)). If the claimant meets this requirement and there is no evidence of 18 malingering, “the ALJ can reject the claimant’s testimony about the severity of her symptoms 19 only by offering specific, clear and convincing reasons for doing so. This is not an easy 20 requirement to meet: The clear and convincing standard is the most demanding required in Social 21 Security cases.” Id. The ALJ’s reasons must also be supported by substantial evidence in the 22 record. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 23 The Commissioner argues that the ALJ gave sufficient reasons for discounting plaintiff’s 24 testimony: namely, that his testimony was inconsistent with the objective medical evidence, 25 evidence of his daily activities, and evidence that he had either worked or held himself out as 26 27 2 “Occasionally” and “frequently” are terms of art under the Social Security regulations: occasionally means “very little up to one-third of the time”; frequently means “from one-third to 28 two-thirds of the time.” SSR 83-14, 1983 WL 31254, at *2 (1983). 1 capable of working. ECF No. 21 at 12. The ALJ’s reasons for discounting plaintiff’s testimony 2 do not satisfy the “clear and convincing” standard, particularly as they pertain to his allegations of 3 pain, numbness, and weakness in his arm and neck. 4 First, the ALJ’s discussion of the medical evidence is insufficient to show that plaintiff’s 5 testimony was not creditable. Indeed, the ALJ’s lengthy catalogue of the medical evidence 6 overwhelmingly corroborates plaintiff’s account of symptoms stemming from his herniated disc. 7 See, e.g., AR 96 (“[T]enderness to palpation of the neck and reduced range of motion secondary 8 to pain . . . . [P]oor muscle tone of the cervical spine with moderate pain during motion testing”); 9 97 (“[G]ood strength and full range of motion, except in the left upper extremity, which was 10 notable for a slight wrist drop with triceps and brachial radialis weakness and numbness going 11 down his left arm to thumb and index finger.”). The ALJ notably rejected the opinions of both 12 state medical examiners as inconsistent with “observations of the claimant’s reduced cervical 13 range of motion and left shoulder, as well as numbness of the left upper extremity.” AR 97. 14 The Commissioner acknowledges the consistent medical evidence, but notes that the ALJ 15 also found that “[p]hysical examinations throughout the period at issue revealed no cervical or 16 left arm limitations.” Id. (citing AR 98). However, in support of this characterization, the ALJ 17 cited to only two medical appointments—one from May 2020 and one from March 2020. See 18 AR 98 (citing AR 639, 713). The cited medical records indicate that plaintiff had sought the 19 appointments because of pain in his foot and ankle, and neither record contains more than a single 20 line of notes regarding his neck or arm. AR 639 & 712. Moreover, neither the ALJ nor the 21 Commissioner explains how this assertion can be reconciled with either the limitations that the 22 ALJ assessed in the RFC—which presuppose at least some left arm limitations—or the other 23 extensive medical records corroborating plaintiff’s testimony. Such a general juxtaposition of 24 select record evidence with a catalogue of plaintiff’s symptom-related testimony is insufficient. 25 “‘[T]he ALJ must specifically identify the testimony she or he finds not to be credible and must 26 explain what evidence undermines the testimony.’” Brown-Hunter, 806 F.3d at 493 (quoting 27 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (emphasis added by the Brown- 28 Hunter court)). 1 The ALJ’s discussion of plaintiff’s activities fails to provide clear-and-convincing reasons 2 to discount his testimony. As it pertains to plaintiff’s back, neck, and arm impairments, she 3 primarily highlighted that plaintiff “reported that he did yoga, without indicating that he deferred 4 certain activities due to musculoskeletal issues.” AR 98 (citing 633). The ALJ selected this 5 statement—a single line stating only that he “does yoga and this seems to help”—from a 6 neurosurgical consultation record that, in all other respects, overwhelmingly corroborates 7 plaintiff’s account. AR 633-34. The record reveals that plaintiff had sought surgery for 8 “significant left upper extremity pain” and that he had “exhausted conservative therapy,” 9 including “[five] injections without help” and “at least a year [of] physical therapy without 10 sustained relief.” AR 633. It also states that he “used to drive a concrete mixer . . . but has had to 11 quit that because he was no longer able to tolerate the pain,” and t hat plaintiff reported “decreased 12 function with his left arm[,] decreased range of motion, pain and numbness with weakness.” AR 13 633. Considering this information, along with findings of a “slight left wrist drop with triceps 14 and brachial radialis weakness[, and] numbness go[ing] down the superior portion of his left arm 15 to his thumb,” the neurosurgical specialist recommended a surgical intervention. AR 633-34. 16 There is no evidence of the length, regularity, or nature of the yoga that plaintiff purportedly 17 did—or, importantly, whether it involved pushing, pulling, handling, or fingering with his left 18 upper extremity. See AR 633. In the absence of such information, or any additional explanation, 19 it is unclear how an errant statement about doing yoga supports a finding that plaintiff can 20 “handle and finger” with his left hand for as much as two-thirds of an eight-hour workday for five 21 days each week. AR 98, 633-34; see supra, note 2.3 22 23 3 The ALJ also suggested that plaintiff’s use of a bike for transportation undermined his allegations that he was severely limited due to angina. AR 98. Plaintiff objects that he has been 24 forced to use a bike for transportation since he lost his driver’s license, and he notes that his doctors have encouraged him to stop. ECF No. 16-1 at 16 (citing AR 712). Moreover, the record 25 reflects that he fell and injured himself while biking, that he showed “elevated blood pressure” after riding his bike to the doctor, and that, due to his foot impairments, his use of a bike is 26 limited to rolling while pushing with one foot. AR 35, 275, 682. Thus, in the absence of 27 additional detail, his use of a bike amounts to—at most—a weak reason to discount the alleged severity of his angina symptoms. Neither the ALJ nor the Commissioner suggests that it 28 constitutes a reason to discount his allegations of back, neck, and arm pain. 1 Finally, the ALJ provided two additional reasons that “the claimant is more functional 2 than alleged with respect to working”: (1) “[o]n June 6, 2018, the claimant reported that he was 3 cooking in the jail kitchen four days per week to pay for an ankle bracelet for house monitoring, 4 without reports of difficulties performing cooking tasks”; and (2) “the claimant received 5 unemployment insurance, which generally requires the claimant to assert that he is able to work 6 and is contrary to his allegations made herein that he is unable to work.” AR 98 (citing AR 275, 7 207). The first of these reasons mischaracterizes the record. The ALJ cites a page of plaintiff’s 8 treatment records that contains a single line indicating that plaintiff reported “cooking at the jail 9 house kitchen for 4 days to help pay for [the ankle bracelet] because he otherwise could not afford 10 it.” AR 275. There is no evidence that plaintiff performed this work on a weekly basis—as the 11 ALJ asserted—or even for more than four days; neither is there ev idence about the length of his 12 shifts, the nature of the work, or whether he was provided any accommodations for his disability. 13 See AR 633. Regarding the second reason, the Ninth Circuit has stressed that the receipt of 14 unemployment benefits is not a valid reason to discount plaintiff’s testimony where, as here, the 15 record “does not establish whether [plaintiff] held himself out as available for full-time or part- 16 time work. Only the former is inconsistent with his disability allegations.” Carmickle v. 17 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). Plaintiff specifically alleged 18 that he had attempted to work shorter shifts, or less-then-full time positions, but that he had been 19 unable to find work that accommodated his impairments. See AR 32-33. Neither the limited 20 evidence of his work at the jail kitchen nor his application for unemployment benefits amounts to 21 a legitimate reason to discount his alleged inability to sustain work activity “8 hours a day, for 5 22 days a week, or an equivalent work schedule.” SSR 96-8p; see also Lewis v. Apfel, 236 F.3d 503, 23 514 (9th Cir. 2001). 24 The ALJ’s failure to set out specific, clear, and convincing reasons to discount plaintiff’s 25 subjective symptom testimony deprives the court of the ability to determine whether her 26 conclusions are supported by substantial evidence. This error warrants remand to allow for 27 proper consideration of the evidence of record. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 28 2015) (“A district court may reverse the decision of the Commissioner of Social Security, with or 1 | without remanding the case for a rehearing, but the proper course, except in rare circumstances, is 2 | □□ remand to the agency for additional investigation or explanation.”’) (internal quotes and 3 | citations omitted). 4 Accordingly, it is hereby ORDERED that: 5 1. Plaintiff's motion for summary judgment, ECF No. 16, is granted. 6 2. The Commissioner’s cross-motion for summary judgment, ECF No. 21, is denied. 7 3. The matter is remanded for further proceedings consistent with this order. 8 4. The Clerk of Court is directed to enter judgment in plaintiff’s favor. 9 10 IT IS SO ORDERED. ll ( ie - Dated: _ February 21, 2023 q-—— 12 JEREMY D. PETERSON B UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28