(SS) Ibarra 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 JUAN CARLOS DELGADILLO Case No. 1:21-cv-00763-JLT-HBK IBARRA, 12 FINDINGS AND RECOMMENDATIONS TO Plaintiff, GRANT PLAINTIFF’S MOTION FOR 13 SUMMARY JUDGMENT, DENY v. DEFENDANT’S MOTION FOR SUMMARY 14 JUDGMENT, AND REMAND CASE TO KILOLO KIJAKAZI, ACTING COMMISSIONER1 15 COMMISSIONER OF SOCIAL SECURITY, FOURTEEN-DAY OBJECTION PERIOD 16 Defendant. (Doc. No. 19) 17 18 19 Juan Carlos Delgadillo Ibarra (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 disability insurance benefits under the Social Security Act. (Doc. No. 1). The matter is currently 22 before the Court on the parties’ briefs, which were submitted without oral argument. (Doc. Nos. 23 19, 21). For the reasons set forth more fully below, the undersigned recommends the district 24 court grant Plaintiff’s motion for summary judgment and remand for further administrative 25 proceedings. 26 /// 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 28 1 I. JURISDICTION 2 Plaintiff protectively filed for disability insurance benefits October 23, 2018. (AR 255- 3 56). At the hearing, the alleged onset date was amended to March 31, 2016. (AR 47). Benefits 4 were denied initially (AR 123-28), and upon reconsideration (AR 130-35). Plaintiff appeared 5 before Administrative Law Judge Kathryn Burgchardt (“ALJ”) on November 5, 2020. (AR 43- 6 68). Plaintiff was represented by counsel and testified at the hearing. (Id.). On November 27, 7 2020, the ALJ issued an unfavorable decision (AR 15-42), and on April 6, 2021 the Appeals 8 Council denied review (AR 1-8). The matter is now before this Court pursuant to 42 U.S.C. § 9 405(g). 10 II. BACKGROUND 11 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 12 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 13 summarized here. 14 Plaintiff was 49 years old at the time of the hearing. (AR 46). He completed tenth grade 15 and later received a GED. (AR 48). He lives with his wife and teenage son. (AR 48-49). 16 Plaintiff has work history as a farm worker. (AR 53, 60). Plaintiff testified that he has constant 17 pain and numbness in his feet, cannot walk a half a block, elevates his feet throughout the day, 18 and can only sit for 10 to 15 minutes before he has to stand up and change positions. (AR 56). 19 He wears prescription shoes and ankle braces every day, and takes prescription pain medication. 20 (AR 56-57). Plaintiff reported he will undergo recommended back surgery when his blood sugar 21 levels go down. (AR 58). 22 III. STANDARD OF REVIEW 23 A district court’s review of a final decision of the Commissioner of Social Security is 24 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 25 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 26 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 27 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 28 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 1 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 2 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 3 consider the entire record as a whole rather than searching for supporting evidence in isolation. 4 Id. 5 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 6 the Commissioner. “The court will uphold the ALJ’s conclusion when the evidence is susceptible 7 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 8 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 9 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 10 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 11 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 12 U.S. 396, 409-10 (2009). 13 IV. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 14 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 15 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 16 activity by reason of any medically determinable physical or mental impairment which can be 17 expected to result in death or which has lasted or can be expected to last for a continuous period 18 of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment 19 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 20 considering his age, education, and work experience, engage in any other kind of substantial 21 gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 22 The Commissioner has established a five-step sequential analysis to determine whether a 23 claimant satisfies the above criteria. See 20 C.F.R. § 404.1520(a)(4)(i)-(v). At step one, the 24 Commissioner considers the claimant’s work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the 25 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 26 claimant is not disabled. 20 C.F.R. § 404.1520(b). 27 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 28 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 1 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers from “any impairment or combination of 2 impairments which significantly limits [his or her] physical or mental ability to do basic work 3 activities,” the analysis proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s 4 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 5 claimant is not disabled. 20 C.F.R. § 404.1520(c). 6 At step three, the Commissioner compares the claimant’s impairment to severe 7 impairments recognized by the Commissioner to be so severe as to preclude a person from 8 engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii). If the impairment is as 9 severe or more severe than one of the enumerated impairments, the Commissioner must find the 10 claimant disabled and award benefits. 20 C.F.R. § 404.1520(d). 11 If the severity of the claimant’s impairment does not meet or exceed the severity of the 12 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 13 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 14 ability to perform physical and mental work activities on a sustained basis despite his or her 15 limitations, 20 C.F.R. § 404.1545(a)(1), is relevant to both the fourth and fifth steps of the 16 analysis. 17 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 18 claimant is capable of performing work that he or she has performed in the past (past relevant 19 work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is capable of performing past relevant 20 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 404.1520(f). If 21 the claimant is incapable of performing such work, the analysis proceeds to step five. 22 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 23 claimant is capable of performing other work in the national economy. 20 C.F.R. § 24 404.1520(a)(4)(v). In making this determination, the Commissioner must also consider 25 vocational factors such as the claimant’s age, education and past work experience. 20 C.F.R. § 26 404.1520(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must 27 find that the claimant is not disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable 28 of adjusting to other work, analysis concludes with a finding that the claimant is disabled and is 1 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 2 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 3 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 4 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 5 work “exists in significant numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); 6 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 7 V. ALJ’S FINDINGS 8 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 9 since March 31, 2016, the alleged onset date. (AR 24). At step two, the ALJ found that Plaintiff 10 has the following severe impairments: lumbar stenosis, diabetes mellitus, peripheral neuropathy, 11 loss of central visual acuity, and obesity. (AR 24). At step three, the ALJ found that Plaintiff 12 does not have an impairment or combination of impairments that meets or medically equals the 13 severity of a listed impairment. (AR 25). The ALJ then found that Plaintiff has the RFC 14 to perform light work as defined in 20 CFR 404.1567(b), except the claimant can only lift or carry up to 10 pounds frequently, and 20 15 pounds occasionally. He can stand or walk with normal breaks for a total of 6 hours in an 8-hour workday. He can sit with normal breaks 16 for a total of 6 hours in an 8-hour workday. He can perform pushing and pulling motions with upper and lower extremities within the 17 weight restrictions given. He should avoid concentrated exposure to unprotected heights, moving mechanical machinery, and 18 concentrated exposure to vibrations. He can perform postural activities frequently, and that would be climbing of ramps or stairs, 19 balancing, stooping, crouching, kneeling, and crawling, but he should not climb any ladders, ropes or scaffolds on the job. He 20 should avoid concentrated exposure to extreme cold and concentrated exposure to extreme heat. He should not do any 21 conveyer belt work from right to left. 22 (AR 27). At step four, the ALJ found that Plaintiff is unable to perform past relevant work. (AR 23 35). At step five, the ALJ found that considering Plaintiff’s age, education, work experience, and 24 RFC, there are jobs that exist in significant numbers in the national economy that he can perform, 25 including office helper, fast food worker, and housekeeping cleaner. (AR 35-36). On that basis, 26 the ALJ concluded that Plaintiff has not been under a disability, as defined in the Social Security 27 Act, from March 31, 2016, through the date of the decision. (AR 36). 28 //// 1 VI. ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying him disability 3 insurance benefits under Title II of the Social Security Act. (Doc. No. 1). Plaintiff raises the 4 following issues for this Court’s review: 5 1. Whether the ALJ properly considered the medical opinion evidence; and 6 2. Whether the ALJ properly considered Plaintiff’s subjective complaints. 7 (Doc. No. 19 at 14-23). 8 VII. DISCUSSION 9 A. Medical Opinion Evidence 10 For claims filed on or after March 27, 2017, new regulations apply that change the 11 framework for how an ALJ must evaluate medical opinion evidence. Revisions to Rules 12 Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 13 2017); 20 C.F.R. § 404.1520c. The new regulations provide that the ALJ will no longer “give 14 any specific evidentiary weight…to any medical opinion(s)…” Revisions to Rules, 2017 WL 15 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 404.1520c(a). Instead, an ALJ must 16 consider and evaluate the persuasiveness of all medical opinions or prior administrative medical 17 findings from medical sources. 20 C.F.R. § 404.1520c(a) and (b). The factors for evaluating the 18 persuasiveness of medical opinions and prior administrative medical findings include 19 supportability, consistency, relationship with the claimant (including length of the treatment, 20 frequency of examinations, purpose of the treatment, extent of the treatment, and the existence of 21 an examination), specialization, and “other factors that tend to support or contradict a medical 22 opinion or prior administrative medical finding” (including, but not limited to, “evidence showing 23 a medical source has familiarity with the other evidence in the claim or an understanding of our 24 disability program’s policies and evidentiary requirements”). 20 C.F.R. § 404.1520c(c)(1)-(5). 25 Supportability and consistency are the most important factors, and therefore the ALJ is 26 required to explain how both factors were considered. 20 C.F.R. § 404.1520c(b)(2). 27 Supportability and consistency are explained in the regulations: 28 (1) Supportability. The more relevant the objective medical evidence and 1 supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more 2 persuasive the medical opinions or prior administrative medical finding(s) will be. 3 (2) Consistency. The more consistent a medical opinion(s) or prior 4 administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the 5 medical opinion(s) or prior administrative medical finding(s) will be. 6 20 C.F.R. § 404.1520c(c)(1)-(2). The ALJ may, but is not required to, explain how the other 7 factors were considered. 20 C.F.R. § 404.1520c(b)(2). However, when two or more medical 8 opinions or prior administrative findings “about the same issue are both equally well-supported ... 9 and consistent with the record ... but are not exactly the same,” the ALJ is required to explain how 10 “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 11 C.F.R. § 404.1520c(b)(3). 12 The Ninth Circuit has additionally held that the new regulatory framework displaces the 13 longstanding case law requiring an ALJ to provide “specific and legitimate” or “clear and 14 convincing” reasons for rejecting a treating or examining doctor’s opinion. Woods v. Kijakazi, 32 15 F.4th 785 (9th Cir. 2022). Nonetheless, in rejecting an examining or treating doctor’s opinion as 16 unsupported or inconsistent, an ALJ must still provide an explanation supported by substantial 17 evidence. Id. This means that the ALJ “must ‘articulate ... how persuasive’ [he or she] finds ‘all 18 of the medical opinions’ from each doctor or other source ... and ‘explain how [he or she] 19 considered the supportability and consistency factors’ in reaching these findings.” Id. (citing 20 20 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)). 21 Plaintiff generally argues the ALJ failed to provide adequate reasons based on substantial 22 evidence for discounting the medical opinions of Plaintiff’s examining physician while finding 23 persuasive the non-examining opinion of the state agency reviewing physician. (Doc. No. 19 at 24 14). Dr. Shahram Ehteshami performed a consultative neurological examination of Plaintiff in 25 February 2019 and opined that he could perform light level activity with 6 hours of sitting and 4 26 hours of standing and walking in an 8 hour day; occasional lifting of 20 pounds; frequent lifting 27 of 10 pounds; and needed no assistive device for ambulation. (AR 602-05). The ALJ found Dr. 28 Ehteshami’s opinion to be overall “somewhat persuasive” because it was a one-time examination, 1 his review of the overall medical record was “very limited,” and his opinion was “only partly 2 consistent with the objective examination findings that day, and with the current record as a 3 whole.” (AR 32-33). In support of this finding, the ALJ generally cited examination findings 4 that Plaintiff “generally had normal gait and strength during his examinations throughout the 5 medical record.” (AR 33). Further, the ALJ found the cited records 6 demonstrate[] that [Plaintiff] is capable of no more than light exertional work. Thus, the undersigned agrees with Dr. Ehteshami 7 in this regard. However, the undersigned does not see a need to reduce [Plaintiff’s] standing/walking from the typical amount of 6 8 hours associated with light exertional work. In limiting [Plaintiff] to standing/walking for up to 4 hours, Dr. Ehteshami over-relied on the 9 claimant’s subjective complaints. The claimant’s numerous objective physical examination findings of generally normal gait and 10 strength do not support a reduced standing/walking. Additionally, while [Plaintiff] has diabetes with peripheral neuropathy, especially 11 in his feet, as well as other feet issues like plantar fasciitis and pes planus, [Plaintiff] has not required assistive devices like a cane to 12 ambulate. He appears to ambulate well with just orthopedic shoes and an ankle brace. 13 14 (AR 33). 15 Plaintiff argues the ALJ’s rejection of Dr. Ehteshami’s opinion that Plaintiff was limited 16 to four hours of walking, as opposed to the “typical amount of 6 hours associated with light 17 exertional work,” was not supported by substantial evidence. (Doc. No. 19 at 18-20). The Court 18 agrees. Under the new regulations, the ALJ is required to explain how she considered the 19 supportability and consistency factors as defined in 20 C.F.R. § 404.1520c(c)(1)-(2). Here, the 20 ALJ found the limitation opined by Dr. Ehteshami that Plaintiff’s ability to stand and walk for 21 only up to 4 hours, as opposed to the 6 hours opined by the state agency physicians and typically 22 associated with light work, was not well supported because it “over-relied on Plaintiff’s 23 subjective complaints”; the “numerous objective physical examination findings of generally 24 normal gait and strength do not support a reduced standing/walking”; and Plaintiff has not 25 required an assistive device to ambulate and ambulates “well” with orthopedic shoes and an ankle 26 brace. (AR 33). 27 First, in considering the supportability factor, presumably “[a]n ALJ may reject a [] 28 physician’s opinion if it is based ‘to a large extent’ on claimant’s self-reports that have been 1 properly discounted as incredible” as opposed to objective findings and supporting explanations. 2 Tommasetti, 533 F.3d at 1041. However, in this case, the ALJ failed to consider that Dr. 3 Ehteshami did examine Plaintiff and found he walks without limping; has mild heel-to-toe 4 walking ataxia; does not use an assistive device; has normal strength in upper and lower 5 extremities; has absent pin prick sensation in his right lower limb and both feet; has reduced to 6 absent vibration sense in his right limbs; has absent knee and ankle reflexes bilaterally and no 7 plantar response; and had pain reduced range of motion and pain upon testing in his hips and 8 knees. (AR 604). Moreover, as discussed below, the ALJ’s rejection of Plaintiff’s symptom 9 claims was not supported by clear and convincing reasons. Thus, to the extent the ALJ found Dr. 10 Ehteshami’s opinion less persuasive based on his alleged over-reliance on Plaintiff’s properly 11 discounted symptom claims, this finding is not supported by substantial evidence. 12 Second, with regard to the consistency factor, contrary to Defendant’s argument that 13 Plaintiff “ignores” the ALJ’s “express finding” that there were “numerous objective physical 14 examination findings of generally normal gait and strength” throughout the record, Plaintiff 15 correctly notes that Dr. Ehteshami similarly found Plaintiff did not walk with a limp and had 16 normal strength in his extremities. (See AR 604). Thus, the Court is unable to perceive any 17 inconsistency between the “generally normal gait and strength” in examinations cited by the ALJ 18 and Dr. Ehteshami’s own objective findings, such that it would support discounting Dr. 19 Ehteshami’s opinion specifically as to Plaintiff’s ability to stand and walk for only four hours per 20 day as opposed to six. In addition, aside from the general reference to findings of normal gait and 21 strength, the ALJ’s reliance on a string cite of examination findings throughout the record (See 22 AR 33) without further explanation does not rise to the level of substantial evidence supporting 23 the rejection of this portion of Dr. Ehteshami’s opinion because it was inconsistent with other 24 medical sources. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (when considering the 25 medical opinion evidence, the ALJ must do more than state a conclusion; rather, the ALJ must 26 “set forth his own interpretations and explain why they, rather than the doctors’, are correct.”). 27 As noted above, the Ninth Circuit recently clarified that under the new regulations for considering 28 medical evidence, “an ALJ cannot reject an examining or treating doctor’s opinion as 1 unsupported or inconsistent without providing an explanation supported by substantial evidence. 2 The agency must ‘articulate … how persuasive’ it finds ‘all of the medical opinions’ from each 3 doctor or other source, and ‘explain how [it] considered the supportability and consistency 4 factors’ in reaching these findings.” Woods, 32 F.4th at 792 (internal citations omitted). Here, 5 the ALJ fails to explain how the specific limitation assessed by Dr. Ehteshami regarding 6 Plaintiff’s ability to stand and walk is inconsistent with “objective findings” in the medical 7 evidence of record, which are notably comprised of findings not dissimilar to those in Dr. 8 Ehteshami’s own treatment notes. This is error. 9 Finally, the ALJ’s general rejection of Dr. Ehteshami’s opinion because it was only a one- 10 time examination and she performed only a “limited” record review, are not valid reasons, 11 standing alone, to discount the opinion. First, as noted by Plaintiff, Dr. Ehteshami’s opinion 12 specifically noted that his “recommendations are according to the findings of my objective 13 examination of [Plaintiff].” (Doc. No. 19 at 20 (citing AR 605)). Pursuant to the new regulatory 14 framework in considering medical opinion evidence, “[a] medical source may have a better 15 understanding of [a claimant’s] impairment(s) if he or she examines you than if the medical 16 source only reviews evidence in your folder.” 20 C.F.R. §§ 416.920c(c)(3)(v). Moreover, while 17 the ALJ may consider the frequency of a claimant’s visits with the medical source, and “evidence 18 showing a medical source has familiarity with the other evidence in the claim,” these are not sole 19 or determinative factors in considering medical source opinions. 20 C.F.R. §§ 416.920c(c)(3)(ii), 20 416.920c(c)(5). Rather, as noted above, consistency and supportability are the most important 21 factors considered by the ALJ when evaluating the medical opinions. Here, as discussed above, 22 the ALJ’s rejection of Dr. Ehteshami’s opinion as to Plaintiff’s ability to stand and walk because 23 it “over-relied” on Plaintiff’s subjective complaints as opposed to objective medical evidence of 24 “generally normal gait and strength” is not supported by substantial evidence. On remand, the 25 ALJ must properly consider Dr. Ehteshami’s opinion along with the relevant medical opinion 26 evidence.2 27 2 Plaintiff additionally argues the ALJ’s finding that the state agency reviewing opinions by Dr. Leslie E. 28 Arnold and Dr. Robert E. Vestal are persuasive is not supported by substantial evidence. (Doc. No. 19 at 1 B. Symptom Claims 2 An ALJ engages in a two-step analysis when evaluating a claimant’s testimony regarding 3 subjective pain or symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 4 The ALJ first must determine whether there is “objective medical evidence of an underlying 5 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 6 Id. (internal quotation marks omitted). “The claimant is not required to show that his impairment 7 could reasonably be expected to cause the severity of the symptom he has alleged; he need only 8 show that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 9 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 10 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the 11 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 12 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d 13 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are 14 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 15 undermines the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); Thomas v. Barnhart, 16 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility determination with 17 findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 18 discredit claimant’s testimony.”). “The clear and convincing [evidence] standard is the most 19 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 20 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 21 Here, the ALJ found Plaintiff’s medically determinable impairments could reasonably be 22 expected to cause some of the alleged symptoms; however, Plaintiff’s “statements concerning the 23 intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the 24 medical evidence and other evidence in the record.” for two reasons: (1) the objective medical 25 record “as a whole” does not support the alleged severity of Plaintiff’s impairments, and (2) 26 27 16-18; AR 98-99, 110-12). As discussed supra, the ALJ must reconsider the examining opinion of Dr. Ehteshami along with all relevant medical opinion evidence on remand, including the opinions of Dr. 28 Arnold and Dr. Vestal. 1 Plaintiff’s daily activities do not fully support the subjective complaints made by Plaintiff. (AR 2 28-32). 3 The ALJ may consider a claimant’s activities that undermine reported symptoms. Rollins 4 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). However, the Ninth Circuit has “repeatedly 5 warned that ALJs must be especially cautious in concluding that daily activities are inconsistent 6 with testimony about pain, because impairments that would unquestionably preclude work and all 7 the pressures of a workplace environment will often be consistent with doing more than merely 8 resting in bed all day.” Garrison, 759 F.3d at 1016; Vertigan v. Halter, 260 F.3d 1044, 1050 (9th 9 Cir. 2001) (“This court has repeatedly asserted that the mere fact that a plaintiff has carried on 10 certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, 11 does not in any way detract from her [testimony] as to her overall disability.”). Plaintiff argues 12 this was not a clear and convincing reason, supported by substantial evidence, to discount his 13 symptom claims. (Doc. No. 19 at 21-22). The Court agrees. 14 Here, in support of this finding, the ALJ cited Plaintiff’s testimony and function reports 15 indicating that (1) Plaintiff was able to watch television which requires concentration, “involves 16 remaining in a certain position for extended periods,” and involves functional vision; (2) he was 17 “capable of driving”; (3) he reported that “when wearing corrective eyewear his vision problems 18 did not generally limit his activity; (4) he obtained his GED “around and/or within the period at 19 issue”;3 (5) he lives with his wife and teenage child and is left “on his own” at times; (6) he sees 20 family members in person and on video calls; (7) he helps his son with homework; (8) he walks 21 slowly in his yard for exercise; (9) he goes out to eat once a month and to church twice a month; 22 (10) his wife does most household chores but he “may wash one or two plates.” (AR 28). 23 However, Plaintiff also testified that he cannot walk a half a block, he elevates his feet throughout 24 the day, he can only sit for 10 to 15 minutes before he has to change positions, his wife does the 25 cleaning because of his pain, his wife cooks for him, and his son helps him with yardwork; and in 26 27 3 The Court notes that while Plaintiff testified that he has a GED, Defendant does not cite, nor Court is able to discern, any testimony that Plaintiff achieved his GED “around and/or around the period at issue.” 28 (See AR 28, 49). 1 the function reports cited by the ALJ, Plaintiff noted that he only drove for short distances when 2 necessary, doesn’t carry or lift anything, and does not do housework or cooking. (AR 54-56, 292- 3 94). As noted by Plaintiff, he “did not testify to an unimpaired ability to do household chores, 4 self-care, and errands, but that he has limited ability to perform these tasks and frequently needs 5 to rest and modify his activity level because of pain. In fact, Plaintiff testified that the pain and 6 numbness in his feet is worse when standing or walking and that he sits down to rest, he keeps his 7 feet elevated because that is most comfortable for him. Thus, Plaintiff’s daily activities are 8 consistent with his alleged limitations.” (Doc. No. 19 (citing AR 56)). The ALJ cited no 9 evidence suggesting that the limited activities cited in the decision were performed by Plaintiff in 10 a manner transferable to a work setting, particularly with regard to Plaintiff’s ability to stand, 11 walk, and sit, nor did the ALJ describe activities that contradict his reported symptom claims. 12 Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Thus, this is not substantial evidence to support 13 the ALJ's reasoning. 14 Furthermore, in considering Plaintiff’s symptom claims, the ALJ must specifically 15 identify the statements he or she finds not to be credible, and the evidence that allegedly 16 undermines those statements. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “To 17 ensure that our review of the ALJ’s credibility determination is meaningful, and that the 18 claimant’s testimony is not rejected arbitrarily, we require the ALJ to specify which testimony she 19 finds not credible, and then provide clear and convincing reasons, supported by the evidence in 20 the record, to support that credibility determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 494 21 (9th Cir. 2015) (noting the ALJ did not specifically identify any inconsistencies between the 22 claimant’s testimony and the record; rather, “she simply stated her non-credibility conclusion and 23 then summarized the medical evidence supporting her RFC determination.”). Here, the ALJ 24 summarized Plaintiff’s testimony but did not identify the specific testimony that she found not to 25 be credible, nor did she offer explanations for why the cited evidence of Plaintiff’s ability to 26 perform basic activities of daily living undermines Plaintiff’s symptom claims, particularly as to 27 his ability to stand and walk. Thus, the ALJ’s finding that Plaintiff’s daily activities were 28 inconsistent with his claimed limitations was not a clear and convincing reason, supported by 1 substantial evidence, to discount his symptom claims. 2 Second, the ALJ found Plaintiff’s symptom claims are unsupported by “the objective 3 evidence of record,” including, but not limited to, ongoing MRI imaging of the lumbar spine that 4 resulted in a recommendation that Plaintiff undergo lumbar surgery consisting of a lumbar 5 laminectomy decompression/lumbar decompressive laminectomy of L4-L5; an EMG/NCS that 6 revealed moderately severe axonal sensorimotor polyneuropathy, and mild and chronic bilateral 7 L5 radiculopathy; glaucoma and restricted vision in both eyes; and a long history of 8 complications from diabetes. (AR 29-31). However, regardless of whether the ALJ erred in 9 finding Plaintiff’s symptom claims were not corroborated by objective evidence, it is well-settled 10 in the Ninth Circuit that an ALJ may not discredit a claimant’s pain testimony and deny benefits 11 solely because the degree of pain alleged is not supported by objective medical evidence. Rollins, 12 261 F.3d at 857 (emphasis added))); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); 13 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). As discussed above, the additional reason 14 given by the ALJ for discounting Plaintiff’s symptom claims was not supported by substantial 15 evidence. Thus, because lack of corroboration by the objective evidence cannot stand alone as a 16 basis for rejecting Plaintiff’s symptom claims, the ALJ’s finding is inadequate. 17 Defendant argues that the ALJ also considered Plaintiff’s “treatment history and 18 prognosis” as a reason for discounting his symptom claims. (Doc. No. 21 at 15). In support of 19 this argument, Defendant cites the ALJ’s findings that Plaintiff’s “blood sugars stabilized as he 20 became better treatment compliant” and Plaintiff’s self-report at a single treatment visit that his 21 neck pain was “resolved.” (AR 29-30, 712). Impairments that can be effectively controlled with 22 medication are not disabling for the purposes of determining eligibility for benefits. See Warre v. 23 Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (internal citations omitted); see 24 also Tommasetti, 533 F.3d at 1040 (a favorable response to treatment can undermine a claimant's 25 complaints of debilitating pain or other severe limitations). However, even assuming, arguendo, 26 that this was a properly supported reason to reject Plaintiff’s symptom claims as to his claimed 27 diabetes and cervical spine pain, it does not rise to the level of substantial evidence to support 28 discounting all of Plaintiff’s symptom claims, particularly with regard to his back pain and visual 1 acuity. 2 The Court concludes that the ALJ did not provide clear and convincing reasons, supported 3 by substantial evidence, for rejecting Plaintiff’s symptom claims. On remand, the ALJ must 4 reconsider Plaintiff’s symptom claims. 5 C. Remedy 6 The Court finds that further administrative proceedings are appropriate. See Treichler v. 7 Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) (remand for benefits is not 8 appropriate when further administrative proceedings would serve a useful purpose). Here, the 9 ALJ improperly considered the medical evidence of record and Plaintiff’s symptom claims, which 10 calls into question whether the assessed RFC, and resulting hypothetical propounded to the 11 vocational expert, are supported by substantial evidence. “Where,” as here, “there is conflicting 12 evidence, and not all essential factual issues have been resolved, a remand for an award of 13 benefits is inappropriate.” Treichler, 775 F.3d at 1101. Instead, the undersigned recommends 14 remanding this case for further proceedings. On remand, the ALJ should reevaluate all relevant 15 medical opinions, as well as Plaintiff’s symptom claims. If necessary, the ALJ should order 16 additional consultative examinations and, if appropriate, take additional testimony from medical 17 experts. The ALJ should conduct a new sequential analysis, reassess Plaintiff’s RFC and, if 18 necessary, take additional testimony from a vocational expert which includes all of the limitations 19 credited by the ALJ. 20 Accordingly, it is RECOMMENDED: 21 1. Plaintiff’s Motion for Summary Judgment (Doc. No. 19) be GRANTED. 22 2. Defendant’s Cross Motion for Summary Judgment (Doc. No. 21) be DENIED. 23 3. Pursuant to sentence four of 42 U.S.C.§ 405(g), the Court REVERSE the 24 Commissioner’s decision and REMAND this case back to the Commissioner of 25 Social Security for further proceedings consistent with this Order. 26 NOTICE TO PARTIES 27 These findings and recommendations will be submitted to the United States district judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 1 | days after being served with these findings and recommendations, a party may file written 2 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 3 | Findings and Recommendations.” Parties are advised that failure to file objections within the 4 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 5 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 Dated: _ January 9, 2023 Mibu □ Zh. foareh Hack 8 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16