(SS) Shade 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 ELIZABETH GAIL SHADE, Case No. 2:21-cv-02256-JDP (SS) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND 13 v. DENYING THE COMMISSIONER’S MOTION FOR SUMMARY JUDGMENT 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security ECF Nos. 13 & 17 15 Defendant. 16 17 Plaintiff challenges the final decision of the Commissioner of Social Security 18 (“Commissioner”) denying her application for a period of disability, Disability Insurance Benefits 19 (“DIB”), and supplemental security income (“SSI”) under Titles II and XVI of the Social Security 20 Act. Both parties have moved for summary judgment. ECF Nos. 13 & 17. For the reasons 21 discussed below, plaintiff’s motion for summary judgment is granted, the Commissioner’s is 22 denied, and this matter is remanded for further 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 have been applied. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th 27 Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but less than a 28 preponderance; it is such relevant evidence as a reasonable person might accept as adequate to 1 support a 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. 2001) 4 (citations omitted). “Where the evidence is susceptible to more than one rational interpretation, 5 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. 6 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court will not affirm on grounds upon 7 which the ALJ did not rely. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are 8 constrained to review the reasons the ALJ asserts.”). 9 A five-step sequential evaluation process is used in assessing eligibility for Social Security 10 disability benefits. Under this process the ALJ is required to determine: (1) whether the claimant 11 is engaged in substantial gainful activity; (2) whether the claiman t has a medical impairment (or 12 combination of impairments) that qualifies as severe; (3) whether any of the claimant’s 13 impairments meet or medically equal the severity of one of the impairments in 20 C.F.R., Pt. 404, 14 Subpt. P, App. 1; (4) whether the claimant can perform past relevant work; and (5) whether the 15 claimant can perform other specified types of work. See Barnes v. Berryhill, 895 F.3d 702, 704 16 n.3 (9th Cir. 2018). The claimant bears the burden of proof for the first four steps of the inquiry, 17 while the Commissioner bears the burden at the final step. Bustamante v. Massanari, 262 F.3d 18 949, 953-54 (9th Cir. 2001). 19 Background 20 Plaintiff filed applications for a period of disability, DIB, and SSI on May 2, 2014, alleging 21 disability beginning January 1, 2001. Administrative Record (“AR”) 237-52. After her 22 applications were denied initially and upon reconsideration, two hearings were set before an ALJ, 23 but plaintiff did not appear at either hearing. AR 39-60, 147-54, 168-73. On December 18, 2017, 24 the ALJ issued a decision finding that plaintiff was not disabled. AR 19-32. After the appeals 25 council denied plaintiff’s request for review, she sought review before the U.S. District Court for 26 the Eastern District of California. AR 5-10, 1038-51. On May 20, 2020, the court found error in 27 the ALJ’s findings at step five of the sequential evaluation process and remanded for 28 reconsideration. AR 1086-94. 1 On remand before a different ALJ, plaintiff appeared and testified at a hearing on 2 December 7, 2020. AR 959-91. The ALJ issued a second unfavorable decision on August 20, 3 2021. AR 929-58. Specifically, the ALJ found: 4 1. The claimant meets the insured status requirements of the Social 5 Security Act through June 30, 2001. 6 2. The claimant has not engaged in substantial gainful activity since January 1, 2001, the alleged onset date. 7 * * * 8 9 3. The claimant has the following severe impairments: lumbar disc disease status post discectomy, Kienbock’s disease, right radial 10 styloidectomy and scapho-capitate intracarpal fusion with distal radius bone graph, status post right finger fracture, anxiety 11 disorder, mood disorder and somatic symptom diso rder. 12 * * * 13 4. The claimant does not have an impairment or combination of 14 impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 15 * * * 16 17 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to 18 perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except walk a total of 2 hours per day, stand a total of 4 19 hours per day, reaching and push/pull are occasionally; handling, fingering, feeling and use of feet frequently; all postural activities 20 occasionally, except balance frequently and no climbing ladders or 21 scaffolds; unprotected heights never; humidity and wetness, dust, odors, fumes and pulmonary irritants, extreme temperatures, and 22 vibrations occasionally; moving machinery and operating a motor vehicle frequently, noise moderate (office); capable of object- 23 oriented, routine, habituated, work in a moderately complex setting; restricted from highly fast-paced work, such as working on 24 a fast assembly line; no supervising other people’s safety, nor 25 operating fast moving or dangerous machinery, nor constant interactions with the public such as when working as a receptionist 26 in a heavily trafficked office, better off working with objects than people. 27 28 * * * 1 6. The claimant is unable to perform any past relevant work. 2 * * * 3 4 7. The claimant was born [in] 1978 and was 22 years old, which is defined as a younger individual age 18-49, on the alleged disability 5 onset date. 6 8. The claimant has a limited education. 7 9. Transferability of job skills is not material to the determination of 8 disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” 9 whether or not the claimant has transferable job skills. 10 10. Considering the claimant’s age, education, work experience, and 11 residual functional capacity, there are jobs that exi st in significant numbers in the national economy that the claimant can perform. 12 * * * 13 11. The claimant has not been under a disability, as defined in the 14 Social Security Act, from January 1, 2001, through the date of this 15 decision. 16 AR 934-47 (citations to the code of regulations omitted). 17 Plaintiff did not file a written exception to the ALJ’s decision, and the Appeals Council 18 did not exercise its discretion to assume jurisdiction. Accordingly, the ALJ’s decision became the 19 final decision of the Commissioner on October 19, 2021. See 20 C.F.R. §§ 404.984, 416.1484; 20 AR 930. Plaintiff now seeks judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3). 21 Analysis 22 Plaintiff argues that the ALJ improperly discounted her subjective symptom testimony 23 without providing clear and convincing reasons for doing so; she seeks remand for immediate 24 payment of benefits. See ECF No. 13. I agree that the ALJ committed reversable error, but I find 25 that additional proceedings are necessary to assess outstanding factual questions. 26 A. Subjective Symptom Testimony 27 In the Ninth Circuit, courts follow a “two-step analysis for determining the extent to which 28 a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th 1 Cir. 2017). “‘First, the ALJ must determine whether the claimant has presented objective medical 2 evidence of an underlying impairment which could reasonably be expected to produce the pain or 3 other symptoms alleged.’” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 4 2014)). If the claimant meets this requirement, the ALJ can reject her symptom testimony only 5 by offering specific, clear, and convincing reasons for doing so. Id. “This is not an easy 6 requirement to meet: the clear and convincing standard is the most demanding required in Social 7 Security cases.” Id. The ALJ’s reasons must also be supported by substantial evidence in the 8 record. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 9 Plaintiff provided written symptom testimony in her “function report,” dated December 1, 10 2012, AR 296-302, and testified at a hearing in December 2020, AR 971-91. In his RFC analysis, 11 the ALJ summarized her 2012 function report testimony: 12 In her Function Report, the claimant alleged problems standing, sitting, walking, bending, and lifting. She described obsessive 13 thoughts, depression, and anxiety. According to the claimant, she has issues being around people . . . . She described caring for her 14 eleven-year-old son, which included driving him to school, preparing his meals, and washing his laundry. The claimant wrote 15 that she could cook simple meals, clean, wash dishes, and shop for groceries. The claimant described visiting her mother twice per 16 week. 17 AR 938 (citing AR 296-302). The ALJ also noted that at the 2020 hearing plaintiff testified to 18 difficulty using her hands, frequent headaches, insomnia, panic attacks, napping during the day, 19 and needing a break after walking fifteen steps. AR 938 (citing AR 971-91). 20 As an initial matter, the ALJ’s truncated summary of plaintiff’s testimony—in particular, 21 her 2020 hearing testimony—does not adequately represent her allegations. At her hearing, 22 plaintiff also testified that she uses a cane to walk, that she has worn a neck brace since shortly 23 before her cervical fusion surgery in 2019, and that her surgery did not alleviate her neck 24 problems. AR 971-72. She remains unable to turn her head to either side without experiencing a 25 “grind[ing]” sensation, she “drop[s] things constantly,” and she has difficulty writing because of 26 pain, numbness, and tingling in her upper extremities. AR 974-78, 980. She stated that her 27 nineteen-year-old son moved from Oregon to care for her and help with “everything,” including 28 combing her hair, getting dressed, shopping, cooking, cleaning the house, and driving. AR 975- 1 77. She indicated that she needs a knee replacement and that numbness, tingling, and pain in her 2 feet and knees have made it impossible to cook for herself or drive since 2016. AR 976-77. She 3 spends all day sitting on her bed or recliner couch. AR 981. Although she occasionally tries to 4 go for a walk, she can only make it about fifteen steps before needing a break. AR 981. She 5 testified that when she tries to do something on her feet, the pain in her spine and knees requires 6 her to take long and frequent breaks. AR 988-89. 7 As for her mental impairments, plaintiff testified that she has been diagnosed with 8 insomnia, panic attacks, obsessive compulsive disorder, and bipolar disorder. AR 982. She 9 receives treatment for these disorders, but her medications are only moderately helpful. AR 982- 10 84. She still has panic attacks, manic episodes, racing thoughts, and anxiety, which in turn affect 11 her sleep. AR 985. She gets approximately three hours of sleep e ach night and takes frequent 12 naps during the day. AR 982-83. Because of her racing thoughts, she has trouble concentrating 13 and focusing. AR 987. 14 At step two, the ALJ found that plaintiff had lumbar disc disease status post discectomy, 15 Kienbock’s disease, right radial styloidectomy, and scapho-capitate intracarpal fusion with distal 16 radius bone graph, status post right finger fracture, anxiety disorder, mood disorder, and somatic 17 symptom disorder. AR 935.1 The ALJ then found that plaintiff retained the following residual 18 functional capacity (“RFC”): 19 “light work . . . except walk a total of 2 hours per day, stand a total of 4 hours per day, reaching and push/pull are occasionally; 20 handling, fingering, feeling and use of feet frequently; all postural activities occasionally, except balance frequently and no climbing 21 ladders or scaffolds; unprotected heights never; humidity and wetness, dust, odors, fumes and pulmonary irritants, extreme 22 temperatures, and vibrations occasionally; moving machinery and operating a motor vehicle frequently, noise moderate (office); 23 24 1 The ALJ fails—at either step two or three—to acknowledge plaintiff’s cervical spine disc disorder, schizoaffective disorder, or severe degenerative joint disease right knee. See AR 935-36. 25 In the RFC, the ALJ includes limitations stemming from plaintiff’s cervical spine impairments and briefly notes her schizoaffective disorder, but he does not mention her right knee disorder. See AR 26 940-42. Plaintiff provided substantial evidence of all three impairments, and neither the ALJ nor 27 Commissioner provides any explanation for their absence. Although plaintiff does not argue that these omissions warrant remand, the ALJ’s failure to consider all her medically determinable 28 impairments supports the argument that he improperly discredited her symptom testimony. 1 capable of object-oriented, routine, habituated, work in a moderately complex setting; restricted from highly fast-paced work, such as 2 working on a fast assembly line; no supervising other people’s safety, nor operating fast moving or dangerous machinery, nor 3 constant interactions with the public such as when working as a receptionist in a heavily trafficked office, better off working with 4 objects than people. 5 AR 937.2 He determined these limits in part by finding that plaintiff’s “statements concerning the 6 intensity, persistence, and limiting effects of [her] symptoms are not entirely consistent with the 7 medical evidence and other evidence in the record for the reasons explained in this decision.” 8 AR 938. Because he also found that plaintiff’s “medically determinable impairments could 9 reasonably be expected to cause the alleged symptoms,” AR 938, he was required to offer specific, 10 clear, and convincing reasons for discounting her testimony. 11 Outside his discussion of objective medical evidence, the ALJ offered two reasons for 12 discounting plaintiff’s testimony. First, he stated that her activities of daily living are “inconsistent 13 with her allegations of total disability because they show that [she] can do work-related activities 14 consistent with the residual functional capacity.” AR 938. Second, he noted that she “worked 15 after the alleged onset date, which is inconsistent with her allegations that her impairments 16 precluded all work activity.” AR 938. Neither reason satisfies the clear and convincing standard. 17 The ALJ’s reliance on plaintiff’s daily activities is problematic for two reasons: first, it 18 overlooks variation in the severity of plaintiff’s impairments over time; and second, the activities 19 are insufficient to contradict plaintiff’s symptom testimony. Relying solely on plaintiff’s 2012 20 function report, the ALJ stated that plaintiff could “could drive her son to school, cook his meals, 21 and wash his laundry.” AR 938; see AR 296-302. He explained that “these types of tasks are 22 inconsistent with allegations of total disability because they show that the claimant can do work- 23 related activities consistent with the residual functional capacity.” AR 938. Although he 24 repeatedly refers in vague terms to plaintiff’s activities throughout the remainder of the decision, 25 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 he does not provide any additional explanation. 2 In a subsequent application for SSI—consolidated with the instant claim—plaintiff 3 indicated that her condition had materially worsened by December 2017, AR 1318; and, in an 4 August 2019 disability-related-update form, she stated that her condition had further degraded, 5 AR 1340. She described “constant severe pain” in her spine, neck, arms, and legs; pervasive 6 numbness in her arms and legs; constant headaches; and feeling like she was being electrocuted. 7 AR 1340. As for her mental impairments, she added that her depression and anxiety had 8 worsened significantly and that she was now experiencing auditory hallucinations. AR 1340. 9 These allegations are broadly supported by the objective medical evidence. See infra, page 9-10. 10 Her 2020 hearing testimony also reflects these developments: she testified that she could no 11 longer drive, walk for more than fifteen steps, stand for prolonged periods without falling, or do 12 almost any household chores or personal tasks without assistance. AR 974-81. Rather than 13 caring for her young son, as she had done in 2012, she testified that her then nineteen-year-old 14 son had moved back in with her so that he could care for her. AR 975-77. 15 The ALJ ignores these developments. He fails to explain how activities plaintiff 16 performed in 2012 contradicted testimony about her symptoms in 2020. Absent any such 17 explanation, plaintiff’s activities of daily living do not provide a basis for discrediting the entirety 18 of her symptom testimony. See Smith v. Kijakazi, 14 F.4th 1108, 1113 (9th Cir. 2021) (holding 19 that the ALJ “erred by disregarding all of [the claimant’s] testimony, including the portion about 20 his early-period incapacity, on the basis of inconsistencies only clearly applicable to the late- 21 period testimony”). 22 Moreover, plaintiff’s activities in 2012 were not so extensive as to contradict her symptom 23 testimony for any period. “Disability claimants should not be penalized for attempting to lead 24 normal lives in the face of their limitations.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 25 1998). A claimant’s daily activities should only bear on their credibility where the level of 26 activity is inconsistent with the claimed limitations. Id. Although plaintiff stated in her 2012 27 function report that she was able to do occasional household chores and drive her son to and from 28 school, she also noted that she had “to tak[e] many breaks due to [her] chronic back/neck pain,” 1 and that she would otherwise “just wait around for bed time because [she was] in so much pain 2 constantly.” AR 297. She included that her partner “help[ed] [her] with most all daily activities,” 3 including taking care of her son, cooking, cleaning, and working. AR 297. There is no 4 discrepancy between these activities and her symptom testimony from either 2012 or 2020, such 5 as that she needs frequent breaks when attempting to “stand, sit, walk, bend, lift, or hold any 6 positions for very long.” AR 296; see also AR 981, 988 (testimony from 2020 hearing); 7 cf. Reddick, 157 F.3d at 722 (finding the plaintiff’s pain testimony consistent with her daily 8 activities because they were “sporadic and punctuated with rest”). As discussed infra, part B, this 9 limitation is potentially dispositive as to her disability status. 10 The ALJ’s second reason—that plaintiff “worked after the alleged onset date,” AR 938— 11 is also insufficient. The record shows that plaintiff attempted to w ork as a nursing aide between 12 2005 and 2009. AR 289. However, she made less than $2,400 each year, a figure that the ALJ 13 found too low to constitute substantial gainful activity. AR 935. Apart from noting that plaintiff 14 performed such work, the decision provides no details regarding the nature, frequency, or 15 demands of the work. See AR 938. Moreover, like with her activities of daily living, he fails to 16 explain how insubstantial work ending in 2009 undercuts her allegations of disability for the 17 subsequent thirteen years. In the absence of any particularity or explanation, the mere fact that 18 plaintiff held a job—one that did not amount to substantial gainful activity—is not a clear and 19 convincing reason to reject her testimony. See Reddick, 157 F.3d at 722-23, 722 n.1 (rejecting the 20 ALJ’s reliance on plaintiff’s work experience to discredit her testimony, because the ALJ had 21 failed to “fully account[] for the context of materials or all parts of the testimony and [work] 22 reports” when he omitted mention that she merely did “odd jobs 20 minutes one time a week”); 23 Berry v. United States, 312 U.S. 450, 455 (1941) (“It was not necessary that petitioner be bed- 24 ridden, wholly helpless, or that he should abandon every possible effort to work in order for the 25 jury to find that he was totally and permanently disabled.”). 26 The Commissioner argues that the ALJ’s findings are supported by the medical evidence. 27 ECF No. 17 at 5-9. Importantly, ALJ’s “may not reject a claimant’s subjective complaints based 28 solely on a lack of medical evidence to fully corroborate the alleged severity of pain.” Burch v. 1 Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); 20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject 2 your statements about the intensity and persistence of your pain or other symptoms or about the 3 effect our symptoms have on your ability to work solely because the available objective medical 4 evidence does not substantiate your statements.”). Thus, the absence of legitimate reasons to 5 discount plaintiff’s testimony outside of any discussion of the objective medical evidence is an 6 error that independently warrants remand. 7 Nevertheless, the ALJ’s discussion of the objective medical evidence is also inadequate, 8 particularly in its meagre consideration of medical records after 2014. The ALJ includes a single 9 paragraph referring to treatment that plaintiff received for her physical conditions in 2015 or later, 10 most of which supports her allegations. See 940. His discussion highlights cursory physical 11 examination findings, such as a March 2019 finding of “normal to e and heel walking, normal 12 strength and normal muscle tone with slightly reduced strength in the upper and lower right 13 extremity, and restricted range of motion in the spine.” AR 940 (citing AR 1456-59). He relies 14 heavily on these findings, ignoring considerable evidence in support of plaintiff’s allegations, to 15 support the minimal limitations assessed in the RFC. See, e.g., AR 943 (crediting opinion 16 evidence as “consistent with unremarkable physical examination findings, such as normal gait, 17 range of motion, and strength”). 18 Contrary to the ALJ’s characterization, plaintiff’s medical records overwhelmingly 19 support her allegations. In 2018, a physician diagnosed palpable muscle spasms in her thoracic 20 and cervical spines. AR 1428-34. A January 2019 MRI showed severe foraminal narrowing at 21 C3-4 through C6-C7 and reversal of the normal curvature of her cervical spine. AR 1447-49, 22 1456-59. At the March 2019 physical exam cited by the ALJ, she was found to have “unsteady” 23 tandem walking on both sides, tenderness in her lumbar and cervical spine, and severe range of 24 motion limitations in her spine: “25% of normal” extension in her lumbar spine, “less than 75% of 25 normal” extension in her cervical spine, and “less than 50% of normal rotation to the right” in her 26 cervical spine. See AR 1458-59. After a nerve conduction study, plaintiff was diagnosed with 27 bilateral arm radiculopathy stemming from degenerative disc disease in her cervical spine from 28 C4 through C7. See AR 1430 & 1717. Her cervical impairments were sufficiently severe to 1 warrant surgery—“cervical vertebrectomies with anterior cervical fusion”—in March 2019. 2 AR 940, 1456-59. Plaintiff reported that her surgery did not help, and physical therapy treatment 3 notes from the subsequent several months do not show significant improvement. See AR 1504- 4 24. In June 2020, plaintiff received x-rays for progressively increasing pain in her right knee; the 5 physician diagnosed “[s]evere degenerative joint disease” and recommended a total knee 6 arthroplasty (or replacement). AR 1582-83.3 Her mental impairment allegations are also well- 7 supported by extensive treatment records, showing consistently severe symptoms of major 8 depressive disorder, generalized anxiety disorder, panic disorder, and—since at least early 2020— 9 schizophrenia. See AR 1720-56. Thus, the ALJ’s contention that the medical record does not 10 contain “objective evidence . . . [of] debilitating limitations,” AR 940, is not supported by 11 substantial evidence. 12 The ALJ’s failure to provide clear and convincing reasons for discounting plaintiff’s 13 symptom testimony was not harmless. He assessed several limitations in the RFC that could not 14 be sustained if plaintiff’s testimony was properly credited. For instance, he found that plaintiff 15 can “operat[e] a motor vehicle frequently” and stand or walk in some combination for six hours 16 per day. AR 937. These limitations fly in the face of plaintiff’s 2020 testimony that she cannot 17 walk for more than fifteen steps without taking a break and that she has been completely unable to 18 drive (and without a driver’s license) since 2016. See AR 975-77. They also appear to contradict 19 plaintiff’s 2012 testimony that she had “to tak[e] many breaks due to [her] chronic back/neck 20 pain.” AR 297. Crediting plaintiff’s symptom testimony would have changed the ALJ’s opinion. 21 B. Remedy 22 Plaintiff argues that the ALJ’s improper refusal to credit her symptom testimony warrants 23 24 3 Neither the ALJ nor any of the agency consultants appears to have acknowledged her knee impairments, even though she filed multiple disability-related-development forms that 25 mentioned her need for a knee replacement, and even though she discussed both her use of a cane and her knee impairments at the 2020 hearing. See AR 935-40 (noting, in the ALJ decision, that 26 “the record does not show evidence of abnormality of a major joint in any extremity”); AR 971 & 27 976 (testifying, in plaintiff’s hearing, that she had been using a cane for eight months and needed a knee replacement surgery, but that her knee doctor had retired); AR 1379, 1393 (reporting by 28 plaintiff in disability and medical treatment updates that she needs her right knee replaced). 1 immediate payment of benefits. ECF No. 13 at 18. Typically, “[i]f additional proceedings can 2 remedy defects in the original administrative proceeding, a social security case should be 3 remanded.” Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). However, “courts are 4 empowered to affirm, modify, or reverse a decision by the Commissioner ‘with or without 5 remanding the cause for a rehearing.’” Garrison, 759 F.3d at 1019 (quoting 42 U.S.C. § 405(g)) 6 (emphasis omitted). In Varney v. Sec’y of Health & Human Servs., the Ninth Circuit held: “where 7 there are no outstanding issues that must be resolved before a proper disability determination can 8 be made, and where it is clear from the administrative record that the ALJ would be required to 9 award benefits if the claimant’s excess pain testimony were credited, we will not remand solely to 10 allow the ALJ to make specific findings regarding that testimony. Rather, we will . . . take that 11 testimony to be established as true.” 859 F.2d 1396, 1401 (9th Ci r. 1988) (“Varney II”) (citations 12 omitted). This “credit-as-true rule is designed to achieve fairness and efficiency,” Garrison, 759 13 F. 3d at 1019, and to “ensure that pain testimony will be carefully assessed and its importance 14 recognized,” Varney II, 859 F.2d at 1398. 15 For this court to depart from the ordinary remand rule and award benefits under the credit- 16 as-true rule, three requirements must be met: “(1) the record has been fully developed and further 17 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide 18 legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; 19 and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to 20 find the claimant disabled on remand.” Garrison, 759 F.3d at 1020. However, even where all 21 three requirements are satisfied, the court retains flexibility in determining the appropriate 22 remedy. See Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). In particular, the court may 23 remand for “further proceedings ‘when the record as a whole creates serious doubt as to whether 24 the claimant is, in fact, disabled within the meaning of the Social Security Act.’” Id. (quoting 25 Garrison, 759 F.3d at 1021). 26 Plaintiff filed her applications nearly nine years ago. Since that time, two ALJs have 27 issued adverse decisions, both deficient in some respect. The first ALJ found that plaintiff was 28 not disabled by identifying approximately 10,000 jobs in the national economy that plaintiff could 1 perform—a figure that this court determined to be too low to support a finding of non-disability. 2 AR 1091-93. On remand, the ALJ found that plaintiff could perform a more significant number 3 of jobs by assessing an RFC that was less restrictive than the prior RFC, even though plaintiff had 4 provided considerable evidence that her conditions had materially worsened. Compare AR 24 5 (limiting plaintiff to “lifting [‘and carrying’] 20 pounds occasionally and 10 pounds frequently; . . 6 . occasional handling [‘and fingering’] with the right upper extremity”), with AR 937 (assessing 7 no limits on lifting or carrying and limiting plaintiff to handling and fingering frequently). As 8 explained supra, the reasons he provided in support of this RFC are illogical and unsupported by 9 substantial evidence. Thus, the second requirement is satisfied. 10 The first and third requirements are also satisfied, at least with respect to the last several 11 years. At a 2021 hearing, plaintiff’s attorney asked the vocationa l expert whether a hypothetical 12 person with the limitations in plaintiff’s RFC could perform any jobs if that person also needed 13 ten-minute breaks every hour. AR 1002-3. The VE responded that such a person could not 14 perform any jobs at a competitive level. AR 1003.4 The hypothetical posed by plaintiff’s 15 attorney is supported by plaintiff’s testimony—from both 2012 and 2020—that she could not 16 sustain any position for long without experiencing significant pain and therefore requires frequent 17 breaks. AR 237, 988-89. It is also supported by 2014 testimony from her fiancé and 2019 18 testimony from her sister—both of whom served as her caretaker at various points—as well as by 19 the 2013 testimony of a state agency medical consultant who found that plaintiff could only sit or 20 stand for two hours in an eight-hour day. See AR 81 (state agency medical consultant); AR 317 21 (testimony from plaintiff’s fiancé that she “can’t stand or sit in same position for very long” and 22 can’t cook for herself unless it takes less than fifteen minutes); AR 1313 (testimony from 23 plaintiff’s sister that she can walk only 130-140 feet before needing a twenty-minute break). The 24 VE’s testimony is sufficient to show that, if plaintiff’s testimony had been credited, she would 25 have been found disabled. See Garrison, 759 F. 3d at 1020 (holding that VE testimony that a 26 hypothetical person with “the RFC that the claimant would possess were the relevant opinion or 27 4 At the 2020 hearing, the VE provided the same response to this question, except with the 28 limitations ascribed to the plaintiff in the earlier ALJ decision. AR 967-68. 1 testimony taken as true” provided a sufficient basis to find the claimant “disabled without 2 remanding for further proceedings”). 3 Moreover, the Ninth Circuit has stressed that “applicants for disability benefits often 4 suffer from painful and debilitating conditions, as well as severe economic hardship.” Varney II, 5 859 F.2d at 1399. Plaintiff has suffered from severe physical and mental impairments for more 6 than two decades and has not held any job—even one that does not meet the substantial gainful 7 activity level—for nearly fifteen years. She has experienced housing instability and relies on her 8 adult son and sister for her care. To delay the payment of benefits by requiring a third round of 9 administrative proceedings would risk causing “the applicant further damage—financial, medical, 10 and emotional. Such damage can never be remedied.” Id. 11 Nevertheless, the record leaves some doubt as to precisely when plaintiff became disabled. 12 Plaintiff does not challenge the ALJ’s characterization of her medical records as showing 13 “unremarkable physical examination findings” in 2001 and 2002, minimal “treatment for [her] 14 back pain” between 2002 and 2008, or “limited treatment of [her] mental symptoms until late 15 2008.” AR 939, 941. In a series of filings between 2019 and 2020, she reported worsening 16 physical and mental impairments that strongly support a finding that she was disabled by the time 17 of her 2020 hearing. AR 1300-54, 1379-81, 1391-92. However, other than her 2019 neck 18 surgery, she does not identify specific inflection points in the deterioration of her health. ECF 19 No. 13 at 15. Thus, while payment of benefits appears warranted as to her Title XVI claim, the 20 undersigned cannot determine either the proper date from which to calculate benefits for that 21 claim or whether plaintiff is entitled to payment of benefits on her Title II claim. Cf. Wellington 22 v. Berryhill, 878 F.3d 867, 872 (9th Cir. 2017) (“A claimant can qualify for [Title II] benefits only 23 if her disability begins by her date last insured . . . . In contrast, a claimant is eligible for SSI once 24 she becomes disabled, but she cannot receive benefits for any period before her application 25 date.”). 26 In such cases, where “the medical evidence is not definite concerning the onset date and 27 medical inferences need to be made, SSR 83-20 requires the administrative law judge to call upon 28 the services of a medical advisor and to obtain all evidence which is available to make the 1 determination.” Armstrong v. Comm’r Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir. 1998). 2 | Accordingly, the matter must be remanded for further proceedings to allow for proper 3 | consideration of when plaintiff's impairments became sufficiently severe to render her disabled. 4 | To assist in this process, the ALJ is instructed to call a medical advisor and to obtain all evidence 5 || necessary to make the determination. 6 Accordingly, it is hereby ORDERED that: 7 1. Plaintiffs motion for summary judgment, ECF No. 13, is granted. 8 2. The Commissioner’s cross-motion for summary judgment, ECF No. 17, is denied. 9 3. The matter is remanded for further proceedings consistent with this order. 10 4. The Clerk of Court is directed to enter judgment in plaintiff’s favor. 11 IT IS SO ORDERED. 13 ( 1 ow — Dated: _ March 31, 2023 q-—— 14 JEREMY D. PETERSON 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 15