(SS) Lemke v. Commissioner of Social Security ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHARON LEMKE, Case No. 2:23-cv-00698-JDP (SS) 12 Plaintiff, ORDER 13 v. GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING 14 COMMISSIONER OF SOCIAL THE COMMISSIONER’S CROSS-MOTION SECURITY, FOR SUMMARY JUDGMENT 15 Defendant. ECF Nos. 24 & 29 16 17 18 Plaintiff, who suffers from bilateral knee osteoarthritis, lumbar and cervical spine 19 degenerative disc disease, and right shoulder degenerative joint disease, challenges the final 20 decision of the Commissioner of Social Security (“Commissioner”) denying her application for 21 supplemental security income (“SSI”) under Title XVI of the Social Security Act. Both parties 22 have moved for summary judgment. ECF Nos. 24 & 29. Because I find that the ALJ failed to 23 provide clear and convincing reasons for discrediting plaintiff’s alleged symptoms and limitations, 24 plaintiff’s motion is granted, and the Commissioner’s cross-motion is denied. 25 Standard of Review 26 An Administrative Law Judge’s (“ALJ”) decision denying an application for disability 27 benefits will be upheld if it is supported by substantial evidence in the record and if the correct 28 legal standards have been applied. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th 1 Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but less than a 2 preponderance; it is such relevant evidence as a reasonable person might accept as adequate to 3 support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 4 “The ALJ is responsible for determining credibility, resolving conflicts in medical 5 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) 6 (citations omitted). “Where the evidence is susceptible to more than one rational interpretation, 7 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. 8 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court will not affirm on grounds upon 9 which the ALJ did not rely. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are 10 constrained to review the reasons the ALJ asserts.”). 11 A five-step sequential evaluation process is used in assess ing eligibility for Social Security 12 disability benefits. Under this process, the ALJ is required to determine: (1) whether the claimant 13 is engaged in substantial gainful activity; (2) whether the claimant has a medical impairment (or 14 combination of impairments) that qualifies as severe; (3) whether any of the claimant’s 15 impairments meet or medically equal the severity of one of the impairments in 20 C.F.R., Pt. 404, 16 Subpt. P, App. 1; (4) whether the claimant can perform past relevant work; and (5) whether the 17 claimant can perform other specified types of work. See Barnes v. Berryhill, 895 F.3d 702, 704 18 n.3 (9th Cir. 2018). The claimant bears the burden of proof for the first four steps of the inquiry, 19 while the Commissioner bears the burden at the final step. Bustamante v. Massanari, 262 F.3d 20 949, 953-54 (9th Cir. 2001). 21 Background 22 In August 2015, plaintiff filed an application for SSI, alleging disability beginning on April 23 1, 2012. Administrative Record (“AR”) 183-91. After her applications were denied both initially 24 and upon reconsideration, plaintiff appeared and testified at a hearing before an Administrative 25 Law Judge (“ALJ”). AR 38-104. On December 20, 2017, the ALJ issued a decision finding that 26 plaintiff was not disabled. AR 20-37. 27 Plaintiff requested review by the Appeals Council, but the request was denied. AR 1-5, 28 182. She then challenged the ALJ’s decision by filing a complaint in District Court. AR 1673-75. 1 On September 20, 2019, the assigned magistrate judge remanded the matter for further 2 proceedings in accordance with the parties’ stipulation to voluntary remand pursuant to 42 U.S.C. 3 § 405(g). AR 1689. 4 The Appeals Council subsequently remanded the case to the ALJ (1) to address an 5 incomplete evaluation of the opinion evidence, including the opinion of treating physician Dr. 6 Daniel B. Dahle, M.D., and (2) to consider whether the ALJ and VE appropriately determined the 7 requirements of plaintiff’s past work. The Appeals Council also instructed the ALJ to obtain 8 supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on 9 plaintiff’s occupational base, and to give further consideration to plaintiff’s residual functional 10 capacity, her alleged symptoms, and her past relevant work. AR 1693-98. 11 On remand, plaintiff appeared via telephone and testified before the same ALJ at a hearing 12 on January 12, 2021. AR 1595-1648. On February 5, 2021, the ALJ issued a second denial, 13 making the following findings: 14 1. The claimant has not engaged in substantial gainful activity since 15 August 21, 2015, the application date. 16 2. The claimant has the following severe impairments: bilateral knee osteoarthritis, left greater than right; lumbar & cervical spine 17 degenerative disc disease, and right shoulder degenerative joint disease. 18 19 * * * 20 3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of 21 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 22 * * * 23 4. After careful consideration of the entire record, I find that the 24 claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b), except she is able to climb ramps 25 and stairs occasionally, but is never able to climb ladders, ropes or scaffolds. The claimant is able to balance and stoop frequently; 26 kneel, crouch and crawl occasionally; and reach overhead with the 27 right upper extremity occasionally. In addition, the claimant should avoid concentrated exposure to cold, vibration, and 28 workplace hazards. 1 * * * 2 5. The claimant is capable of performing past relevant work as a 3 checker and a home attendant. This work does not require the 4 performance of work-related activities precluded by the claimant's residual functional capacity. 5 * * * 6 7 6. The claimant has not been under a disability, as defined in the Social Security Act, since August 21, 2015, the date the 8 application was filed. 9 10 AR 1573-94 (citations to the Code of Federal Regulations omitted). 11 Plaintiff submitted written exceptions to the ALJ’s second denial. AR 1886-88. The 12 Appeals Council denied the exceptions, and the ALJ’s February 5, 2021, decision became the final 13 decision of the Commissioner. AR 1553-58, see 20 C.F.R. § 416.1484. Plaintiff now seeks 14 judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3). 15 Analysis 16 Plaintiff argues that the ALJ’s February 5, 2021, decision should be vacated for the 17 following reasons: (1) the ALJ relied on vocational expert testimony that conflicted with the 18 Dictionary of Occupational Titles without questioning the VE about “obvious discrepancies”; 19 (2) the ALJ did not give clear and convincing reasons supported by substantial evidence for 20 discounting plaintiff’s testimony concerning her limitations; (3) the ALJ erred when formulating 21 plaintiff’s residual functional capacity by ignoring impairments, improperly weighing medical 22 opinions, and failing to fully develop the record. ECF No. 24 at 6-7, 21-36. 23 I agree that the ALJ failed to properly consider plaintiff’s alleged symptoms and 24 limitations. Because remand is warranted on this issue, I decline to address plaintiff’s remaining 25 arguments. 26 A. Overview of Plaintiff’s Medical History 27 The record indicates that plaintiff sought frequent medical care for pain in her shoulder, 28 knees, and back. In July 2015, she was involved in a motor vehicle crash that resulted in injuries 1 to both knees and her right ankle. AR 1582, 336-40. MRI studies of plaintiff’s right knee in 2 August 2015 indicated a horizontal tear of the medial meniscus, and grade two to three 3 chondromalacia of the medial joint space. AR 371, 1582. In September 2015, plaintiff had 4 surgery on her right knee that included a partial medial meniscectomy and medial compartment 5 debridement. AR 405, 1582. 6 In February 2016, plaintiff had arthroscopic surgery on her left knee that included 7 chondroplasty of the medial femoral condyle and the tibial plateau and a partial medial 8 meniscectomy. AR 1103. The surgery revealed a degenerative tear of the medial meniscus and 9 “extensive” degenerative changes. AR 906, 1582. An MRI of plaintiff’s left knee in May 2016 10 showed grade four chondromalacia of the medial joint space, grade three chondromalacia of the 11 medial patellofemoral joint, and small joint effusion. AR 1128-29 . 12 Plaintiff was prescribed a knee brace and the pain-relief medications Tramadol and Norco. 13 See, e.g., 451, 1434. Plaintiff also saw a chiropractor and attended physical therapy sessions to 14 treat her pain symptoms. See AR 511, 1492-1552, 2157. 15 A May 2017 treatment note indicates that at a follow-up visit with Dr. Dahle, plaintiff 16 complained of swelling, pain, and instability in her left knee. AR 1467. Exam findings showed 17 tenderness along the medial joint line of the left knee, as well as crepitus and a lack of full flexion. 18 AR 1469. Other findings included slightly decreased range of motion in the right arm, pain in the 19 trapezius area, and localized swelling and stiffness in the back.1 AR 1467-69. Although plaintiff’s 20 neurological motor exam demonstrated “no dysfunction,” Dr. Dahle noted that she had an 21 “abnormal” gait because “when she walks, she tends to look down to make sure she places her left 22 leg.” AR 1469. 23 Subsequent MRI and x-ray imaging reflected degenerative changes in plaintiff’s right 24 shoulder, left knee, and spine. Specifically, an x-ray of her right shoulder in August 2017 showed 25 probable calcific tendinosis and narrowing of the AC joint with minimal inferior osseous spurring. 26 1 In February 2014, prior to the filing date of plaintiff’s SSI application, she had 27 arthroscopic surgery on her right shoulder that included calcification needling and revealed a degenerative labral tear. AR 314-15. 28 1 AR 2194. Another shoulder x-ray in February 2020 showed diffuse osseous demineralization and 2 probable calcific tendinopathy of the rotator cuff. AR 2204. Regarding the cervical spine, in 2018 3 an x-ray showed mild endplate spurring at C4 to C7, see AR 2196, while a cervical MRI showed 4 annular bulging at C2 to C6, multilevel cervical canal stenosis, and foraminal narrowing. AR 5 2197-98. A lumbar MRI from 2019 showed the following: minimal annular bulging at L2-3; 6 bilateral facet and legamentum flavum hypertrophy, and foraminal-lateral annular tears on the right 7 and left sides at L4-5; and annular bulging and posterior spondylitic ridging, bilateral facet and 8 legamentum flavum hypertrophy, and mild bilateral foraminal narrowing at L5-S1. AR 1943-44. 9 B. Plaintiff’s Subjective Symptoms 10 On September 5, 2015, plaintiff completed an Adult Function Report addressing how her 11 conditions limit her activities. AR 239-47. To describe how she s pends her days, plaintiff stated 12 that she “clean[s] [her]self up the best [she] can” and “do[es] what [she] can around the house.” 13 AR 240. She also tries to go to physical therapy “on days [that she] can get there.” Id. In the 14 section about meals, she stated that she has the ability to stand in the kitchen for only short periods 15 of time, and that meal preparation takes less than fifteen minutes. AR 241. For household chores, 16 plaintiff stated that she is able to vacuum “in short periods” and do laundry “in short periods,” and 17 water her flowerpots. Id. Because she needs to take breaks, two loads of laundry can take her four 18 hours to complete, and vacuuming her house can take two hours. Id. Describing her shopping 19 activities, plaintiff stated that she only shops for groceries for twenty minutes each week, adding 20 that “it hurts too much to walk and stand for very long.” AR 242-43. 21 For hobbies and interests, plaintiff listed jogging, riding her bicycle, reading books, and 22 watching movies, but stated that since her car accident she is no longer able to jog or cycle. AR 23 240, 243. In addition to the grocery store, the only other places that plaintiff goes to on a regular 24 basis are doctor’s appointments two times per week, physical therapy sessions three times per 25 week, and the post office. AR 243. In the section seeking information about abilities, plaintiff 26 stated that lifting, kneeling, walking, and standing “hurt[] terribly.” AR 244. She also stated that 27 she had been prescribed “braces/splints,” which she uses every day. AR 245. 28 1 At the 2017 hearing, plaintiff testified that she has severe pain in her neck, lower back, and 2 knee, and that, even with medication, the pain is at an intensity of eight or nine on a scale of one to 3 ten. AR 1721, 1731-32. She is able to sit for thirty-five minutes before she needs to take a break 4 by standing up to “let the blood flow in [her] legs.” AR 1707-08. Because of back pain, plaintiff 5 is able to walk for only ten or fifteen minutes. AR 1728-29. In response to questions about her 6 activities, plaintiff testified that she shops for groceries with her roommate one day per week; she 7 is able to manage her own hygiene and grooming except for bending over to clip her toenails; and 8 that she no longer rides her bicycle or jogs. AR 1726-29. Plaintiff swims and rides a stationary 9 bike for ten minutes as physical therapy. AR 1726, 1729-30. She has prescriptions for Tramadol 10 and Norco for pain symptoms, but they are not effective. AR 1732. She also sees a chiropractor. 11 AR 1733. 12 At the 2021 hearing, plaintiff testified that in addition to cervical and lumbar degenerative 13 disc disease and degenerative joint disease in her right shoulder, she experiences pain and swelling 14 in her ankle that began after her car accident. Although her ankle had improved with physical 15 therapy, the symptoms returned before January 2020 and have increased in severity. AR 1613-15. 16 She has pain in her right shoulder and neuropathy in her hands, and is unable to open a bottle of 17 milk. AR 1617, 1622-24. She wears a brace on her right knee which is “the only way [she] can 18 get around,” although it “keeps [her] off balance.” AR 1624. She is able to stand for only five or 19 ten minutes before she needs to either lay down or sit down. AR 1618. When asked about grocery 20 shopping, plaintiff testified that she orders her groceries online and that her friend brings the 21 groceries to plaintiff’s house. AR 1619. For pain relief, plaintiff takes Tramadol. She also uses 22 patches and topical creams that “work for a little while, but they’re not a cure all.” AR 1618, 23 1624. 24 C. Legal Standard for Rejecting Symptom Testimony 25 When evaluating a claimant’s testimony regarding subjective pain or symptoms, an ALJ 26 follows a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, 27 the ALJ must determine whether there is “objective medical evidence of an underlying impairment 28 which could reasonably be expected to produce the pain or other symptoms alleged.” Id. 1 (quotations and citation omitted). If the first test is satisfied and there is no evidence of 2 malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 3 by giving “specific, clear and convincing reasons” for the rejection. Ghanim v. Colvin, 763 F.3d 4 1154, 1163 (9th Cir. 2014) (citations and quotations omitted). Additionally, the ALJ must state 5 findings that are “sufficiently specific to permit the court to conclude that the ALJ did not 6 arbitrarily discredit [the] claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 7 2002) 8 B. The ALJ’s Credibility Determination 9 The ALJ found that plaintiff’s medically determinable impairments could reasonably be 10 expected to cause the alleged symptoms. The ALJ then considered plaintiff’s testimony, along 11 with the statements in her Adult Function Report, and the stateme nts made by plaintiff’s friend in a 12 Third Party Function Report, and found that their allegations were not entirely consistent with the 13 record of evidence. Id. In rejecting plaintiff’s claimed symptoms and limitations, the ALJ stated: 14 Although the claimant and her friend alleged that the claimant had the ability to lift only 5 pounds and that she had significant 15 exertional limitations with standing and walking, the medical evidence of record as a whole demonstrates that she has been able to 16 perform a significant number of activities of daily living, including exercising regularly, cooking, doing household chores, and going 17 shopping. 18 19 AR 1584. 20 The ALJ’s reliance on the above-listed activities does not qualify as a clear and convincing 21 reason supported by substantial evidence for rejecting plaintiff’s subjective complaints. As stated 22 above, plaintiff reported that she only spends fifteen minutes to prepare meals because she has 23 difficulty standing for longer periods of time, see AR 241, that she spends about twenty minutes 24 shopping for groceries once per week, see AR 242-43, 1726, and that she is able to carry out 25 household chores like vacuuming and laundry only by working for “short periods” and taking 26 breaks.2 See AR 241. The ALJ has not pointed out any specific contradictions between plaintiff’s 27 2 Plaintiff lives in a trailer, and, with rest breaks, it takes her two hours to vacuum the 28 space. AR 241, 1601, 1619. Two loads of laundry can take her four hours. AR 241. 1 alleged symptoms and the foregoing activities.3 Additionally, there is no indication that plaintiff 2 spent a substantial part of her day performing these activities; neither did the ALJ explain how 3 such activities relate to the demands of the workplace. See Molina v. Astrue, 674 F.3d 1104, 1112- 4 13 (9th Cir. 2012), superseded on other ground by 20 C.F.R. § 404.1502(a); Fair v. Bowen, 885 5 F.2d 597, 603 (9th Cir. 1989) (holding that daily activities may support adverse credibility finding 6 “if a claimant is able to spend a substantial part of his day engaged in pursuits involving the 7 performance of physical functions that are transferable to a work setting”), superseded on other 8 grounds by 20 C.F.R. § 404.1502(a); see also Vertigan v. Halter, 260 F.3d 1044, 149-50 (9th Cir. 9 2001) (“[T]he mere fact that a plaintiff has carried on certain daily activities, such as grocery 10 shopping, driving a car, or limited walking for exercise, does not in any way detract from her 11 credibility as to her overall disability.”). In particular, grocery sho pping is not even a “daily” 12 activity, and there is no indication how this limited, infrequent event demonstrates the ability to 13 function in a job setting, or that plaintiff’s symptoms are less severe than alleged.4 14 As for plaintiff’s exercise regimen, the record shows that she attended physical therapy for 15 approximately one year, from October 2015 to October 2016. See AR 1492-1552. Once physical 16 therapy ended, she continued to independently engage in therapeutic exercises—swimming and 17 riding a stationary bike for ten minutes—to treat her symptoms. AR 1729-30; see also AR 1550 18 (October 11, 2016, letter from physical therapist to Dr. Dahle indicating that plaintiff is ready to 19 continue her “independent home exercise program/gym program”). At that time, Dr. Dahle and an 20 orthopedic surgeon agreed that plaintiff should undertake “vigorous” physical therapy that 21 includes swimming. See, e.g., 1464. Not only are plaintiff’s physical therapy exercises in 22 accordance with her treating doctor’s recommendation, but the ALJ failed to sufficiently explain 23 how such exercises are inconsistent with her claimed symptoms. Additionally, activities such as 24 3 The court notes that plaintiff did not assert that she could lift only five pounds. Rather, 25 plaintiff’s friend in the Third Party Function Report stated that he was “unsure of how many lbs. she can lift” and that in his opinion, she is capable of lifting “less than 5 lbs.” AR 221. The friend 26 also stated that plaintiff is unable to stand or walk for an extended amount of time, which is 27 consistent with plaintiff’s subjective complaints. See AR 219. 4 Plaintiff testified at the 2021 hearing that she purchases her groceries online and no 28 longer shops in the grocery store. AR 1619. 1 swimming and riding a stationary bike for ten minutes do not necessarily reflect any capabilities 2 that transfer to a work setting.5 A claimant “may do these activities despite pain for therapeutic 3 reasons, but that does not mean she could concentrate on work despite the pain or could engage in 4 similar activity for a longer period given the pain involved.” Vertigan, 260 F.3d at 150 (emphasis 5 in original). 6 Next, in rejecting plaintiff’s symptom claims, the ALJ stated: 7 Medical consultants also determined that she was able to perform light work with some postural, manipulative, and environmental 8 limitations, which was consistent with objective medical findings of record showing her to have no limp when she walked, only slightly 9 decreased motion of the cervical and lumbar spine, normal motor strength, and normal neurological findings. 10 11 AR 1584. The ALJ does not elaborate by pointing out any particu lar aspect of the consultative 12 physicians’ opinions that undermines plaintiff’s credibility, other than stating that the physicians’ 13 light work determination conflicts with plaintiff’s asserted physical limitations. Accordingly, the 14 ALJ’s reliance on the consultative physicians’ opinions is not a sufficiently specific reason to 15 disregard plaintiff’s claimed symptoms. The remaining ground cited by the ALJ is that the noted 16 objective findings do not support plaintiff’s allegations of pain and physical limitations. 17 However, the lack of objective medical evidence to corroborate subjective complaints of pain 18 cannot, by itself, support an adverse credibility determination. See Rollins v. Massanari, 261 19 F.3d 853, 856 (9th Cir. 2001) (“[O]nce a claimant produces objective medical evidence of an 20 underlying impairment, an [ALJ] may not reject a claimant’s subjective complaints based solely 21 on a lack of objective medical evidence to fully corroborate the alleged severity of pain.”) 22 (citation omitted). 23 5 To the extent the ALJ also relies on notations in the record stating that plaintiff’s exercise 24 activities include “short jogs,” this does not amount to a clear and convincing reason to discredit her symptom testimony. The reference to “short jogs” is found in plaintiff’s “social history” that 25 is stated on a multitude of progress notes from plaintiff’s chiropractor: “Social History: Patient admits exercising regularly: walking, biking, short jogs.” See, e.g., AR 511. This same language 26 is included in all of plaintiff’s chiropractor records, spanning from November 2013 to October 27 2019. See AR 511, 2157. Under these circumstances, it appears that plaintiff’s social history reflects what she was able to do in the past rather than her physical abilities during the relevant 28 time period. 1 C, Remand for Further Proceedings 2 Because the ALJ’s rejection of plaintiffs subjective complaints was not based on clear and 3 || convincing reasons supported by substantial evidence in the record, the matter must be remanded 4 | for further consideration. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“A district 5 || court may reverse the decision of the Commissioner of Social Security, with or without remanding 6 | the case for a rehearing, but the proper course, except in rare circumstances, is to remand to the 7 | agency for additional investigation or explanation.”) (internal quotes and citations omitted); 8 | Treichler v. Comm’r of Social Sec., 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ 9 | makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand 10 | the case to the agency.”). 11 Conclusion 12 Accordingly, it is hereby ORDERED that: 13 1. Plaintiffs motion for summary judgment, ECF No. 24, is granted. 14 2. The Commissioner’s cross-motion for summary judgment, ECF No. 29, is denied. 15 3. The matter is remanded for further proceedings consistent with this order. 16 4. The Clerk of Court is directed to enter judgment in plaintiff's favor. 17 18 IT IS SO ORDERED. 19 ( 1 Sty — Dated: _ September 26, 2024 Q_-——— 20 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 11