Ortiz v. Saul ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PATRICIA O, Case No.: 21-cv-376-CAB-BGS 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION TO REMAND CASE TO SOCIAL SECURITY 14 KILOLO KIJAKAZI, Commissioner of ADMINISTRATION FOR FURTHER Social Security, 15 PROCEEDINGS Defendant. 16 [ECF 21] 17 18 19 I. INTRODUCTION 20 Plaintiff Patricia O. (“Plaintiff” or “claimant”) filed a Complaint seeking judicial 21 review of the Commissioner of the Social Security Administration’s (“Commissioner” or 22 “Defendant”) denial of disability insurance benefits under the Social Security Act, (ECF 23 1), and the Commissioner has filed the Administrative Record (ECF 14-19). Pursuant to 24 the Court’s Order, the parties have filed a Joint Motion for Judicial Review addressing 25 both parties’ positions. (ECF 19 (Court’s briefing Order); ECF 21 (Joint Motion).) 26 Plaintiff seeks reversal of the final decision denying benefits and an order for the 27 payment of benefits or, in the alternative that the Court remand the case for further 28 administrative proceedings. Plaintiff argues the Administrative Law Judge (“ALJ”) failed 1 to provide specific, clear and convincing reasons for rejecting Plaintiff’s allegations 2 regarding the severity of her symptoms. (ECF 21 at 4-17.1) The Commissioner argues 3 that the ALJ provided numerous reasons for discounting Plaintiff’s allegations regarding 4 the severity of her symptoms. (ECF 21 at 19-25.) 5 The Honorable Cathy Ann Bencivengo has referred this matter to the undersigned 6 on a report and recommendation basis. After careful consideration of the parties’ 7 arguments, the administrative record and the applicable law and for the reasons discussed 8 below, the Court RECOMMENDS the case be remanded to the Social Security 9 Administration for further proceedings. 10 II. PROCEDURAL HISTORY 11 Plaintiff’s application for disability benefits, alleging disability commencing on 12 September 20, 2018, were denied initially on April 5, 2019 and on reconsideration on 13 April 11, 2019. (AR 333-338 (initially); AR 339-345 (reconsideration).)2 At Plaintiff’s 14 request, a hearing was held before an ALJ on April 7, 2020. (AR 177-217 (hearing 15 transcript), 347-348 (request for hearing).) The ALJ issued an unfavorable decision on 16 July 15, 2020. (AR 86-101.) Plaintiff’s request for Appeals Council review was denied on 17 January 12, 2021. (AR 1-7 (denial), 411-414 (request for review).) 18 III. ALJ DECISION 19 The decision explains the five-step evaluation process for determining whether an 20 individual is eligible for disability benefits and then proceeds through steps one through 21 five of the evaluation process. (AR 87-101.3) 22 23 1 Unless otherwise noted, the Court cites the CM/ECF electronic pagination for the 24 parties’ briefing and the Administrative Record pagination for cites to it. 25 2 The ALJ decision explains that Plaintiff submitted a prior application alleging a March 6, 2016 onset date that was denied on September 18, 2018. (AR 87.) The ALJ noted the 26 presumptions of non-disability absent a showing of changed circumstances. (AR 87.) The 27 decision then finds there is evidence of changed circumstances. (AR 87.) 3 Relevant portions of the decision, including discussion of the specific records the ALJ 28 1 A. Step Two 2 After finding Plaintiff had not engaged in substantial gainful activity at step one, 3 (AR 89), the ALJ addresses step two. (AR 89-93.) At step two, the ALJ determines 4 whether a claimant has a “severe medically determinable physical or mental impairment . 5 . . or combination of impairments that is severe.” 20 C.F.R. § 1520(a)(4)(ii). The decision 6 finds Plaintiff had the following medically determinable severe impairments: 7 “retrolisthesis of L5-S1 with herniated nucleus pulposus (HNP) at L5-S1; patellofemoral 8 Chondromalacia of the left knee; minor degenerative changes of the cervical spine; 9 bradycardia; carotid bruit and mitral regurgitation.” (AR 89.) 10 The ALJ then notes Plaintiff “has also alleged disability due to anxiety disorder, 11 not otherwise specified; a depressive disorder, not otherwise specified; insomnia; 12 hypertension and urinary tract infection.” (AR 89.) The decision identifies blood pressure 13 readings in three medical records in 2019 and discusses two medical records in which 14 Plaintiff’s hypertension is described as stable. (AR 90.) The ALJ also acknowledges 15 Plaintiff’s insomnia diagnosis in the May 1, 2018 record and that it was described as 16 stable. (AR 90.) 17 The decision then addresses whether Plaintiff’s mental impairments are severe or 18 non-severe and addresses the four functional areas under the “paragraph B” criteria.4 (AR 19 90-93.) The ALJ cites a May 1, 2018 follow-up with Plaintiff’s cardiologist, in which the 20 ALJ indicates Plaintiff denied anxiety or depression and had normal mood and affect. 21 (AR 90.) The ALJ additionally notes another record, a November 27, 2018 appointment 22 with an orthopedic surgeon, indicating Plaintiff had normal mood and affect. (AR 90.) 23 The ALJ then summarizes Plaintiff’s consultive psychiatric evaluation and an 24 initial mental health evaluation by a licensed clinical social worker. (AR 90-91.) As to 25 both evaluations, the ALJ notes she was diagnosed with unspecified depressive disorder 26 27 28 1 and unspecified anxiety. (AR 90-91.) As to the psychiatric evaluation, the decision 2 summarizes her mild limitations in a number of activities including, two-step 3 instructions, interacting with others, concentration and attention, accepting instructions, 4 and work attendance. (AR 91.) As to the initial mental health evaluation, the ALJ 5 indicates that Plaintiff reported that following her boyfriend committing suicide in 6 December 2019, she was unable to sleep, was throwing up when she ate, lacked energy, 7 and was easily triggered by what other people say. (AR 91.) The ALJ also explains that 8 she was recommended to receive psychotherapy 1-2 times per month for six months. (AR 9 91.) The ALJ then found, based on this evaluation, that these impairments would not last 10 twelve months or more under 20 CFR § 404.1505 and § 416.905. (AR 91.) The ALJ 11 concluded that Plaintiff’s anxiety and depressive disorders were non-severe. (AR 92.) 12 The decision then addresses the “paragraph B” criteria. (AR 922-93.) The ALJ 13 found Plaintiff had only mild limitations in the four functional areas: (1) understanding, 14 remembering, or applying information; (2) interacting with others; (3) concentrating, 15 persisting, or maintaining pace; and (4) mild limitation in adapting or managing herself. 16 (AR 92.) In conducting this analysis, the ALJ discussed Plaintiff’s Adult Function 17 Reports and the daily activities she reported engaging in as well as Plaintiff’s reports 18 during her psychiatric evaluation. (AR 92.) 19 The ALJ then explains that this “paragraph B criteria” analysis is only used to rate 20 the severity of mental impairments for steps two and three and not a residual functional 21 capacity (“RFC”). The ALJ concludes that Plaintiff’s anxiety disorder, depressive 22 disorder, insomnia, hypertension, and urinary tract infections are not severe impairments. 23 (AR 93.) 24 B. Step Three 25 At step three the ALJ considers whether the claimant’s impairments meet or equal 26 one or more of the specific impairments or combination of impairments described in 27 20 C.F.R. Part 404, Subpart P, Appendix 1, the listings. See §§ 404.1520(a)(4)(iii), 28 1 404.1520(d), 404.1525, 404.1526. The ALJ found Plaintiff did not meet a listing at step 2 three. (AR 93.) 3 C. Residual Functional Capacity 4 If the claimant does not meet a listing, the ALJ “assess[es] and makes a finding 5 about [the claimant’s] residual functional capacity based on all the relevant medical and 6 other evidence in [the claimant’s] case record.” 20 C.F.R. §§ 404.1520(e). A claimant’s 7 RFC is the “most [they] can still do despite [their] limitations” taking into account all 8 medically determinable impairments, including “medically determinable impairments 9 that are not ‘severe.’” 20 C.F.R. § 404.1545(a)(1)(2). The RFC is used at the fourth and 10 fifth steps to determine whether the claimant can do their past work (step four) or adjust 11 to other available work (step five). §§ 404.1520(e)-(f), 404.1545(a)(5). The ALJ assessed 12 the following RFC: 13 After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as 14 defined in 20 CFR 404.1567(b) and 416.967(b). She is able to lift, carry, 15 push, and pull 20 pounds occasionally and up to 10 pounds frequently. She can stand and/or walk 6 hours and sit 6 hours in an 8 hour workday with 16 normal breaks. She could never climb ladders, ropes or scaffolds; 17 occasionally climb ramps and stairs; and occasionally balance, stoop, kneel, crouch and crawl. Additionally, she would need to avoid even moderate 18 exposure to vibrations and she would need to avoid all exposure to 19 workplace hazards, such as unprotected heights, dangerous or fast-moving machinery, etc. 20 21 (AR 93.) 22 The decision then explains that in making this finding, the ALJ “has considered all 23 Plaintiff’s symptoms and the extent to which these symptoms can reasonably be accepted 24 as consistent with the objective medical evidence and other evidence” and “also 25 considered the medical opinions and prior medical findings.” (AR 93 (citing 20 C.F.R. 26 § 404.1529 and 416.929, SSR 16-3p, 20 C.F.R § 404.1520c, and § 416.920c) 27 The ALJ then explains the two-step process to evaluate Plaintiff’s symptoms. (AR 28 93-94.) The decision identifies the first step as determining if an underlying impairment 1 could reasonably be expected to produce Plaintiff’s symptoms. (AR 93-94.) The ALJ 2 describes the second step as an evaluation of the intensity, persistence and limiting effects 3 of Plaintiff’s symptoms to determine the extent to which they limit Plaintiff’s work- 4 related activities. (AR 94) The ALJ notes that whenever Plaintiff’s statements “about the 5 intensity, persistence, or functionally limiting effects of pain or other symptoms are not 6 substantiated by objective medical evidence, the undersigned must consider other 7 evidence in the record to determine if the claimant’s symptoms limit the ability to do 8 work-related activities.” (AR 94.) 9 The ALJ then summarizes the following medical appointments: May 1, 2018 10 follow-up with her treating cardiologist; November 27, 2018 follow-up with an 11 orthopedic surgeon, Dr. Kimball; April 18, 2019 evaluation and September 19, 2019 12 follow-up with a different orthopedic surgeon, Dr. Abitbol; May 15, 2019 pain 13 management physician visit; and August 30, 2019 visit with another orthopedic surgeon, 14 Dr. Scalone. (AR 94-96.) The ALJ also notes Plaintiff underwent two medial branch 15 block lumbar injections that reportedly only provided relief for a couple of hours. (AR 16 96.) These were followed by two radiofrequency ablations (RFAs) that provided some 17 brief pain relief. (AR 96.) 18 The ALJ then summarizes Plaintiff’s February 26, 2019 and April 30, 2019 Adult 19 Function Reports as indicating she independently performs personal hygiene activities, 20 prepares simple meals, keeps her room clean, does her laundry, uses public 21 transportation, shops for groceries, attends church and a food bank, and interacts with 22 family, friends, neighbors, and authority figures. (AR 96.) The summary acknowledges 23 she reports she cannot handle a savings or checking account because of lack of 24 concentration and uses a knee brace, hand brace, and glasses. (AR 96.) The ALJ states 25 that his consideration of these reports includes “whether the information contained in the 26 reports are consistent with other evidence in the record, and any other factors that tend to 27 support or refute the information and opinions provided.” (AR 96-97.) 28 1 The ALJ then states, “[i]n determining the claimant’s residual functional capacity, 2 the undersigned has also considered the allegations of her symptoms and functional 3 limitations.” (AR 97.) “However, to the extent that it is alleged that the claimant cannot 4 perform work at the residual functional capacity as recited above, the Administrative Law 5 Judge finds those allegations are not totally consistent with the evidence for the following 6 specific and legitimate reasons.”5 (AR 97.) The ALJ then lists nine reasons that are 7 discussed further below (section V.B). (AR 97-98.) The ALJ then returns to the second 8 step of the two-step process for evaluating a claimant’s symptoms and “finds that the 9 claimant’s medically determinable impairments could reasonably be expected to cause 10 the alleged symptoms; however, the claimant’s statements concerning the intensity, 11 persistence and limiting effects of these symptoms are not entirely consistent with the 12 medical evidence and other evidence in the record for the reasons explained in this 13 decision.” (AR 98.) 14 The ALJ then summarizes and agrees with medical consultant opinions finding 15 Plaintiff can perform work at the light level of activity with the additional limitations 16 noted in the RFC above and that she lacks a severe mental impairment. (AR 98.) In doing 17 so, the ALJ notes the “exertional and nonexertional limits are also consistent with the 18 claimant’s course of treatment that has been mostly conservative.” (AR 98-99.) 19 The ALJ concludes that “[t]he objective medical evidence and the claimant’s 20 acknowledged activities are consistent with the ability to perform activities at the above 21 stated residual functional capacity levels and inconsistent with the inability to do any 22 work activity.” (AR 99.) 23 24 25 5 The ALJ decision refers to Plaintiff’s “allegations of symptoms” or more generally 26 “allegations” rather than “testimony.” Although, as discussed in more depth below, it is 27 not always clear what allegations the ALJ intends to encompass in these phrases the Court presumes the ALJ is including more than Plaintiff’s testimony given these phrases 28 1 Relying on testimony from a vocational expert, the ALJ determined at step four 2 that Plaintiff could do her past relevant work as a cashier. (AR 99.) The ALJ also found 3 in the alternative at step five that there were other jobs in the national economy that 4 Plaintiff was also able to perform: small products assembler, inspector, or marker. (AR 5 99-100.) 6 IV. SCOPE OF REVIEW 7 Section 405(g) of the Social Security Act allows unsuccessful claimants to seek 8 judicial review of a final agency decision. 42 U.S.C. § 405(g). This Court has jurisdiction 9 to enter a judgment affirming, modifying, or reversing the Commissioner’s decision. See 10 id.; see also 20 C.F.R. § 404.900(a)(5). The matter may also be remanded to the Social 11 Security Administration for further proceedings. 42 U.S.C. § 405(g). 12 If the Court determines that the ALJ’s findings are not supported by substantial 13 evidence or are based on legal error, the Court may reject the findings and set aside the 14 decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). 15 The Court “must consider the entire record as a whole and may not affirm simply by 16 isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 17 F.3d 880, 882 (9th Cir. 2006) (citation omitted); see also Ahearn v. Saul, 988 F.3d 1111, 18 1115 (9th Cir 2021) (“To determine whether substantial evidence supports the ALJ’s 19 determination, we must assess the entire record, weighing the evidence both supporting 20 and detracting from the agency’s conclusion.”) (citing Mayes v. Massanari, 276 F.3d 453 21 459 (9th Cir. 2001)). Substantial evidence “means—and means only—such relevant 22 evidence as a reasonable mind might accept as adequate to support a conclusion.” 23 Ahearn, 988 F.3d at 1115 (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)). 24 The Court may “review only the reasons provided by the ALJ in the disability 25 determination and may not affirm the ALJ on a ground upon which he did not rely.” 26 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). 27 28 1 V. DISCUSSION 2 Plaintiff argues the ALJ failed to provide legally sufficient rationale for rejecting 3 Plaintiff’s symptom testimony and the absence of an articulated rationale is itself legal 4 error, warranting remand. (ECF 21 at 9.) Plaintiff acknowledges the ALJ’s enumerated 5 reasons, but argues that none of them meet the clear and convincing standard, in part 6 because the ALJ failed to connect the testimony or allegations he found not credible to 7 the part of the record supporting the non-credibility determination. (ECF 21 at 9, 13-16.) 8 More specifically, Plaintiff challenges: (1) the ALJ’s reliance on Plaintiff’s daily 9 activities (ECF 21 at 10-14); (2) the ALJ’s reliance solely on the objective medical 10 evidence without connecting any of it to Plaintiff’s testimony (ECF 21 at 14-16); (3) 11 seeming to characterize Plaintiff’s treatment as routine or conservative when it was not 12 (ECF 21 at 16); and (4) finding Plaintiff not credible because a one-time examining 13 physician noted Plaintiff drove to an examination (ECF 21 at 16-17). Defendant argues 14 the ALJ provided numerous proper reasons for discounting Plaintiff’s testimony. (ECF 21 15 at 19-25.) Defendant points to the ALJ’s reliance on controlled hypertension and 16 depression and anxiety not lasting more than twelve months (ECF 21 at 21-22); objective 17 medical evidence (ECF 21 at 23); conservative treatment (ECF 21 at 23-24); lack of 18 medical opinions further restricting Plaintiff (ECF 21 at 24); Plaintiff’s daily activities 19 (ECF 21 at 24-25); and Plaintiff’s statements about driving (ECF 21 at 22-23). 20 A. Applicable Legal Standard 21 When evaluating a Plaintiff’s impairment-related symptoms, ALJ’s must follow a 22 two-step process. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (“We have 23 established a two-step analysis for determining the extent to which a claimant’s symptom 24 testimony must be credited.”); Garrison, 759 F.3d at 1014 (citing Lingenfelter v. Astrue, 25 504 F.3d 1028, 1035-36 (9th Cir. 2007); 20 C.F.R. § 404.1529 (Describing how the 26 Commissioner evaluates symptoms); see also SSR 16-3p, 2017 WL 5180304, at *2-3 27 (Detailing the Commissioner’s two-step process for evaluating symptoms). 28 1 At the first step, “the ALJ must determine whether the claimant has presented 2 objective medical evidence of an underlying impairment which could reasonably be 3 expected to produce the pain or other symptoms alleged.” Garrison, 871 F.3d at 678; 4 SSR 16-3p, 20017 WL 5180304, at *3. 5 When the claimant satisfies the first step and there is no determination of 6 malingering by the ALJ, at the second step, “the ALJ must provide ‘specific, clear, and 7 convincing reasons for’ rejecting the claimant’s testimony regarding the severity of the 8 claimant’s symptoms.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 9 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); Smith v. 10 Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021); Garrison, 759 F.3d at 1014-15; Parra v. 11 Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (citations omitted). The clear and convincing 12 standard is the most demanding required in Social Security cases.” Garrison, 759 F.3d at 13 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 14 B. Analysis 15 The ALJ found that Plaintiff satisfied the first step. (AR 98 (Finding “the 16 claimant’s medically determinable impairments could reasonably be expected to cause 17 the alleged symptoms”).) Having found Plaintiff’s impairments could be expected to 18 cause the alleged symptoms, the only issue raised is whether the ALJ provided specific 19 clear and convincing reasons for rejecting Plaintiff’s testimony or allegations as to the 20 severity of those symptoms. 21 As summarized above, Plaintiff raises several challenges to the ALJ’s decision. 22 Each of those issues is addressed further and individually below along with Defendant’s 23 arguments. However, there is an overarching problem Plaintiff raises as to multiple 24 reasons given by the ALJ—that the ALJ failed to connect the reasons given or evidence 25 relied on to Plaintiff’s testimony or symptom allegations. 26 1. Identification of Testimony and Evidence Undermining 27 To meet the clear and convincing standard, the Ninth Circuit “require[s] the ALJ to 28 specifically identify the testimony from a claimant [the ALJ] finds not to be credible and . 1 . . explain what evidence undermines this testimony.” Treichler, 775 F.3d at 1102; 2 Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020) (“the ALJ must identify the specific 3 testimony that he discredited and explain the evidence undermining it.”); Smolen, 80 F.3d 4 at 1284 (“The ALJ must state specifically which symptom testimony is not credible and 5 what facts in the record lead to that conclusion.”); Parra, 481 F.3d at 750 (“The ALJ 6 must provide clear and convincing reasons to reject a claimant’s subjective testimony, by 7 specifically identifying what testimony is not credible and what evidence undermines the 8 claimant’s complaints.”); Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir.2009) (“[T]he 9 ALJ [is] required to point to specific facts in the record.”) (emphasis added) (internal 10 quotation marks omitted); Burrell v. Colvin, 775 F.3d 1133, 1137-38 (9th Cir. 2014). The 11 ALJ’s findings must be “sufficiently specific to permit the court to conclude that the ALJ 12 did not arbitrarily discredit claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 13 1039 (9th Cir. 2008). 14 Here, the ALJ has not identified the testimony or allegations he is finding not 15 credible or connected his reasons for discounting Plaintiff’s symptoms to any testimony 16 or allegations. As summarized above (section III.C), after stating Plaintiff’s RFC, the 17 ALJ indicates generally that he “has considered all Plaintiff’s symptoms and the extent to 18 which these symptoms can reasonably be accepted as consistent with the objective 19 medical evidence and other evidence”(AR 93), but does not identify what symptoms he is 20 21 6 The Court notes that some cases articulating the analysis under the second step use the 22 term credibility, and SSR 16-3p explicitly removed the term “credibility” from the 23 Commissioner’s sub-regulatory policy. However, the Ninth Circuit has explained that SSR 16-3p “makes clear what our precedent already require: the assessments of an 24 individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence 25 of symptoms after the ALJ finds that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,” not to 26 delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” 27 Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16-3p). Regardless of the use of the term credibility, the Court’s application of Ninth Circuit authority here is consistent with 28 1 referring to or explain how they are consistent or inconsistent with the medical evidence 2 or other evidence. 3 The decision then acknowledges the two-step process noted above to evaluate a 4 claimant’s symptoms (AR 93-94) and summarizes some of Plaintiff’s medical history and 5 Plaintiff’s Adult Function Reports. (AR 94-96; see also section III.C.) These summaries 6 do not constitute clear and convincing reasons. “[P]roviding a summary of medical 7 evidence . . . is not the same as providing clear and convincing reasons for finding the 8 claimant’s symptom testimony not credible.” Lambert, 980 F.3d at 1278 (“Although the 9 ALJ did provide a relatively detailed overview of Lambert’s medical history, ‘providing a 10 summary of medical evidence . . . is not the same as providing clear and convincing 11 reasons for finding the claimant's symptom testimony not credible.’”) (quoting Brown- 12 Hunter v. Colvin, 806 F.3d a478, 494 (9th Cir. 2015) (emphasis in original). “[A]n ALJ 13 does not provide specific, clear, and convincing reasons for rejecting a claimant’s 14 testimony by simply reciting the medical evidence in support of his or her residual 15 functional capacity determination.” Brown-Hunter, 806 F.3d at 489. The Court notes that 16 some of the summaries emphasize positive or normal findings and note some of 17 Plaintiff’s reports to her physicians at these appointments, however, there is no 18 connection between these summaries and Plaintiff’s symptoms as required to meet the 19 clear and convincing standard. The ALJ does not identify any testimony or allegations he 20 is finding not credible or the evidence undermining it within these summaries. See Parra, 21 481 F.3d at 750 (“The ALJ must provide clear and convincing reasons to reject a 22 claimant’s subjective testimony, by specifically identifying what testimony is not credible 23 and what evidence undermines the claimant’s complaints.”). 24 After the summaries, the ALJ states he has “considered the allegations of her 25 symptoms and functional limitations, . . . [h]owever, to the extent that it is alleged that 26 the claimant cannot perform work at the residual functional capacity recited above, the 27 Administrative Law Judge finds those allegations are not totally consistent with the 28 evidence for the following specific and legitimate reasons.” (AR 97.) The language itself 1 is deficient because the ALJ is essentially rejecting the Plaintiff’s symptom allegations to 2 the extent that are not consistent with the ALJ’s RFC. Courts have characterized this as 3 “a backward approach” because “an ALJ must take into account a claimant’s symptom 4 testimony when determining the RFC.” Revels v. Berryhill, 874 F.3d 648, 666 (9th Cir. 5 2017) (ALJ “found that [plaintiff’s] testimony was not credible ‘to the extent it was 6 inconsistent with the . . . RFC.”) (citing Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th 7 Cir. 2017) and Trevizo, 862, F.3d at 1000 n.6). “To determine the RFC first and then 8 assess the claimant’s testimony is to ‘put the cart before the horse.’” Id. (citing Laborin, 9 867 F.3d at 1154) (emphasis in original); see also Eldridge v. Berryhill, Case No. 17-cv- 10 497-JLA-BLM, 2018 WL 2357147, at *11 (S.D. Cal. May 23, 2018) (“The ALJ’s focus 11 on the connection between the medical evidence and the RFC, instead of Plaintiff’s 12 testimony, failed to provide specific, clear, and convincing reasons for disbelieving 13 specific statements from Plaintiff's testimony.”). 14 The ALJ does go on to list reasons, however, none of them are connected to any 15 symptom testimony or allegations by Plaintiff. (AR 97-98.) The closest connection in the 16 reasons listed are three statements that vaguely refer to not having a “disabling level of 17 impairment,” “impairments likely to produce disabling pain or other limitations,” and “no 18 treating or examining source medical statements . . . further restrict the claimant’s 19 functional limitations.” ((AR 97 (ALJ indicates some daily activities “do not indicate a 20 disabling level of impairment of the claimant’s residual functional capacity”); AR 98 21 (“the objective evidence of the claimant’s medical record does not establish impairments 22 likely to produce disabling pain or other limitations as alleged”).) However, even 23 assuming the reasons given support those vague conclusions, the ALJ has not connected 24 them to any allegations or testimony. A generic reference to “complaints of disabling 25 symptoms and limitations . . . [does] not specifically identify the statements . . . the ALJ 26 [is] discrediting.” Isis A. v. Saul, Case No. 18cv01728-W-MSB, 2019 WL 3554969, at *5 27 (S.D. Cal. Aug. 2, 2019). 28 1 The ALJ then concludes “the claimant’s statements concerning the intensity, 2 persistence, and limiting effects of these symptoms are not entirely consistent with the 3 medical evidence and other evidence in the record for the reasons explained in this 4 decision.” (AR 98.) However, because the ALJ has not identified the symptoms he is 5 referring to or explained how they are inconsistent with the evidence, the ALJ has failed 6 to “identify the specific testimony that he discredited and explain the evidence 7 undermining it.” Lambert, 980 F.3d at 1268; Smolen, 80 F.3d at 1284 (“The ALJ must 8 state specifically which symptom testimony is not credible and what facts in the record 9 lead to that conclusion.”). 10 The Court recognizes that ALJs are not “require[d] . . . to perform a line-by-line 11 exegesis of the claimant’s testimony . . . [or] draft dissertations when denying benefits,” 12 but here the closet the ALJ gets to identifying the testimony he is rejecting is vague 13 references to “disabling limitations,” and the decision provides no link between the 14 reasons and any symptom allegations or testimony. See Lambert, 980 F.3d at 1277(citing 15 Treichler, 775 F.3d at 1103). The ALJ’s findings are not “sufficiently specific to permit 16 the court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” 17 Thomas, 278 F.3d at 958. 18 2. Daily Activities 19 An “ALJ [is] permitted to consider daily living activities in his credibility 20 analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); see also Molina v. 21 Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) superseded on other grounds by 20 C.F.R. § 22 404.1502(a). Daily activities “form the basis for an adverse credibility determination” 23 when: (1) the daily activities meet the threshold for transferable work skills or (2) the 24 daily activities contradict the claimant’s other testimony. Orn v. Astrue, 495 F.3d 625, 25 639 (9th Cir. 2007); see also Trevizo, 871 F.3d at 682. 26 Plaintiff argues the ALJ simply identifies some activities without any explanation 27 how they demonstrate the ability to perform work and even the activities identified are 28 mischaracterized. (ECF 21 at 10-12.) Plaintiff also argues the activities cited by the ALJ 1 are not so extensive on their own to undermine Plaintiff’s testimony without explanation 2 from the ALJ, and the ALJ does not explain how these daily activities are inconsistent 3 with Plaintiff’s testimony or claimed disability. (ECF 21 at 12-3.) Plaintiff argues this 4 lack of connection between the testimony and the portions of the record relied on by the 5 ALJ prevent the Court from determining whether the decision is supported by substantial 6 evidence. (ECF 21 at 13 (citing Brown-Hunter, 806 F.3d at 494).) Defendant argues the 7 ALJ properly relied on Plaintiff’s daily activities because they suggested she could 8 perform basic tasks and had no more than mild limitations in adapting and managing her 9 anxiety and depression. (ECF 21 at 24-25.) 10 The ALJ made no findings indicating the identified activities met the threshold for 11 transferable work skills and Defendant does not advance that as a basis for an adverse 12 credibility determination. The issue then is whether the ALJ found Plaintiff’s daily 13 activities contradict her testimony or symptom allegations. The ALJ did not. 14 Citing Plaintiff’s Adult Function Reports, the ALJ’s first reason listed in the 15 decision states Plaintiff’s “activities of daily living include[:] independently caring for 16 her own personal hygiene; performing light household chores, such as keeping her room 17 clean; performing her own laundry duties; shopping in stores for groceries and personal 18 items and driving a vehicle.” (AR 97.) The ALJ then concludes “[t]hese activities do not 19 indicate a disabling level of impairment of the claimant’s residual functional capacity.” 20 (AR 97.) 21 The Court agrees that the ALJ’s characterization of the some of these activities 22 may not be completely accurate in that they do not acknowledge the infrequency of them 23 or other limitations that might paint a different picture of Plaintiff’s abilities. See Cobb v. 24 Colvin, No. CV 14-0655 RNB, 2014 WL 5659414, at *2 (C.D. Cal. Nov. 4, 2014) 25 (Finding ALJ’s reasoning legally insufficient when ALJ “ignored the full context of 26 plaintiff’s statements about his daily activities, which indicated that he performed them 27 on a limited basis with help and rest.”) For example, “shopping in stores for groceries and 28 personal items” does not acknowledge that one of the reports the ALJ cites also indicates 1 as to shopping “I don’t really shop, my friend . . . once a month takes me to get free food” 2 and she only shops once a month. (AR 473, 499; see also AR 498 (laundry only done 3 twice a month).) However, the ALJ’s statements are not completely wrong except as the 4 statement that she drives with citation to these two reports. Both reports cited indicate she 5 does not drive. (AR 473, 499.) 6 Even assuming the ALJ’s characterization are accurate, the greater issue is that the 7 ALJ does not explain how any of these activities, even as favorably stated, are 8 inconsistent with Plaintiff’s testimony or allegations. And Plaintiff accurately notes that 9 none of them are so demanding that they obviously undermine Plaintiff’s testimony 10 without some explanation from the ALJ. The ALJ may consider the “inconsistencies 11 either in his testimony or between his testimony and his conduct concerning the nature, 12 severity and effect of the symptoms of which he complains.” Light v. Soc. Sec. Admin., 13 119 F.3d 789, 792 (9th Cir. 1997); Garrison, 759 F.3d at 1015-16; see also Reddick v. 14 Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Our examination of the record shows that the 15 ALJ has erred in characterizing statements and documents contained therein to reach the 16 conclusion that Claimant exaggerated her symptoms.”); (citation omitted). But here, the 17 ALJ has not explained how the identified activities undermine Plaintiff’s testimony. Even 18 if the ALJ’s characterizations of the activities are accurate, the Court cannot determine if 19 they are inconsistent with Plaintiff’s claims because the ALJ has not connected them to 20 any testimony or allegations by Plaintiff. 21 3. Objective Medical Evidence 22 Inconsistency with objective medical evidence is a clear and convincing reason to 23 discredit claimant testimony. Burch, 400 F.3d at 681 (“Although lack of medical 24 evidence cannot form the sole basis for discounting pain testimony, it is a factor that the 25 ALJ can consider in his credibility analysis.”). However, the ALJ cannot reject a 26 claimant’s testimony regarding the severity of their symptoms solely because the 27 objective medical evidence does not support it. Reddick, 157 F.3d at 722 (“Commissioner 28 may not discredit the claimant’s testimony as to the severity of symptoms merely because 1 they are unsupported by objective medical evidence.”); 20 C.F.R. § 404.1529(c)(2) 2 (“[W]e will not reject your statements about the intensity and persistence of your pain or 3 other symptoms or about the effect your symptoms have on your ability to work solely 4 because the available objective medical evidence does not substantiate your statements.”) 5 (emphasis added); SSR 16-3p, 2017 WL 5180304, at *5 (“[W]e will not disregard an 6 individual’s statements about the intensity, persistence, and limiting effects of symptoms 7 solely because the objective medical evidence does not substantiate the degree of 8 impairment-related symptoms alleged by the individual.”) (emphasis added). There must 9 be other clear and convincing reasons for rejecting Plaintiff’s symptom testimony. 10 Plaintiff argues the ALJ erred in the second and fourth through ninth reasons listed 11 by the ALJ because the ALJ is not permitted to rely solely on the objective medical 12 evidence and the ALJ never connects any of these reasons to Plaintiff’s testimony or 13 allegations regarding her symptoms. (ECF 21 at 14-16.) Defendant relies on the ALJ’s 14 findings, summarized above, that Plaintiff’s hypertension was controlled and her 15 depression and anxiety were not likely to last more than twelve months. (ECF 21 at 21- 16 22.) 17 Defendant also argues the ALJ permissibly relied on objective medical evidence, 18 including full range of motion in her knee, reduced range of back motion with tenderness, 19 some improvement with treatment, and not following up with an orthopedic surgeon. 20 (ECF 21 at 23.) Defendant argues “[a]t one point Plaintiff even reported 50-80% 21 reduction in her pain with radiofrequency ablation of the lumbar spine.” (ECF 21 at 23.) 22 However, Defendant fails to acknowledge that improvement lasted less than a month as 23 to one and a little more than a month as to the other before pain flared up, and the 24 physical examination following “revealed decreased range of motion of the spine and 25 tenderness over the lumbar vertebra.” (AR 96 (ALJ summarizing lumbar injections and 26 radio frequency ablations).) 27 The ALJ’s reasons two and the fourth through ninth can be summarized as follows: 28 (second) Plaintiff denied anxiety and depression and had normal mood and affect at 1 cardiology appointment; (fourth) anxiety and depression would not meet the 12-month 2 duration requirements; (fifth) blood pressure controlled; (sixth) echocardiogram showed 3 normal ejection fraction, no evidence of ischemia or inducible arrhythmia and no stenosis 4 on carotid ultrasound; (seventh) hypertension controlled; (eighth) lack of follow-up 5 treatment with orthopedic surgeon as to knee; and (ninth) objective medical evidence 6 does not establish impairments likely to produce “disabling pain or other limitations as 7 alleged for any period of 12 or more continuous months.” 8 Here again, the issue is not that these reasons could not undermine or be 9 inconsistent with Plaintiff’s claims regarding the severity of her symptoms. The problem 10 is that ALJ does not connect any of this objective medical evidence to Plaintiff’s 11 symptoms, even generally, and certainly not specifically. The Court would agree that the 12 ALJ identified objective medical evidence suggesting that Plaintiff’s hypertension is 13 under control and that her anxiety and depression, while certainly diagnosed, do not 14 appear to be likely to last a long period of time. However, it is not clear how that 15 evidence undermines Plaintiff’s testimony. Even if the Court considers her denial of 16 anxiety and depression at a follow-up cardiology appointment as establishing that her 17 anxiety and depression are improved or even resolved, there is still no link or explanation 18 how that evidence is inconsistent with or contradictory to Plaintiff’s testimony or 19 allegations regarding her symptoms. Similarly, not following up with this orthopedic 20 surgeon regarding her knee might be inconsistent with her symptom allegations, although 21 this is even a bit unclear from the ALJ decision given the number of orthopedic surgeons 22 she was seeing. However, regardless, the ALJ does not provide the required link between 23 the testimony he is finding not credible and the evidence he asserts, without explanation, 24 undermines Plaintiff’s complaints. See Parra, 481 F.3d at 750 (“The ALJ must provide 25 clear and convincing reasons to reject a claimant’s subjective testimony, by specifically 26 identifying what testimony is not credible and what evidence undermines the claimant’s 27 complaints.”) 28 1 4. Conservative Treatment 2 Conservative treatment can be a basis for discounting a Plaintiff’s symptom 3 testimony. Parra, 481 F.3d at 751 (finding use of only over-the-counter medication to 4 treat pain was conservative treatment the ALJ could rely on to discount Plaintiff’s claims 5 regarding the severity of her pain). However, here, it does not appear Plaintiff’s treatment 6 was conservative and even if it was, it is again not clear what symptom testimony or 7 allegations that would undermine. 8 Plaintiff argues the ALJ does not cite any medical evidence that Plaintiff’s 9 treatment has been conservative or routine. (ECF 21 at 16 (citing AR 98 and Reason 10 Eight).) Plaintiff asserts that surgery and injections for pain are not conservative 11 treatment. (ECF 21 at 16 (citing Revels, 874 F.3d at 667 and Garrison, 759 F.3d at 1015 12 n.20). Defendant argues an ALJ may rely on conservative treatment to discount a 13 plaintiff’s testimony regarding the severity of an impairment, and asserts the ALJ’s 14 description of Plaintiff’s treatment as “mostly conservative” is accurate because there are 15 references to physical therapy, cortisone injections, and “operative alternatives” in the 16 record. (ECF 21 at 23-24 (citing Parra , 481 F.3d at 751.) Defendant does not address 17 Plaintiff’s assertion that surgery and injections are not conservative treatment. 18 While the Court would agree that some of Plaintiff’s treatment was conservative, 19 including the physical therapy noted by Defendant, other treatments were not, including 20 the lumbar injections and potentially the radio frequency ablations, although the parties 21 largely do not address these ablations. Revels, 874 F.3d at 667 (finding epidural injections 22 to neck and back, among others, not conservative); Garrison, 759 F.3d at 1015 n.20 23 (“[W]e doubt that epidural steroid shots to the neck and lower back qualify as 24 “conservative” medical treatment.”). 25 Additionally, the ALJ does not provide any explanation indicating why or what 26 testimony he would discount on the basis that Plaintiff’s treatment “has been mostly 27 conservative.” (AR 98.) There is no explanation what treatment he considers 28 conservative, and there is no explanation how any particular treatment or treatments are 1 inconsistent with or undermine Plaintiff’s testimony or allegations. Again, the ALJ’s 2 analysis lacks the required link between medical records or findings based on them, like 3 conservative treatment, and Plaintiff’s testimony. The most specific explanation from the 4 ALJ is that the lack of follow-up with a particular orthopedic surgeon was not consistent 5 with “a disabling level of knee pain.” (AR 98 (Eighth Reason). However, what 6 constitutes “a disabling level of knee pain” and how that undermines Plaintiff’s testimony 7 or allegations is still not explained. Even if the Court assumes surgery, injections, and 8 radiofrequency ablations are conservative treatment, the required link between this 9 evidence and how in undermines Plaintiff’s testimony is lacking. A generic reference to 10 “complaints of disabling symptoms and limitations . . . [does] not specifically identify the 11 statements . . . the ALJ [is] discrediting.” Isis A., 2019 WL 3554969, at *5. 12 5. Driving 13 Defendant argues the ALJ reasonably found contradictions regarding Plaintiff’s 14 driving called into question the veracity of all Plaintiff’s statements. (ECF 21 at 22-23.) 15 There are at least three problems here. 16 As an initial matter, Defendant’s argument is an attempt to add a ground, albeit 17 related, that the ALJ did not rely on. Garrison, 759 F.3d at 1010 (Finding the court may 18 “review only the reasons provided by the ALJ in the disability determination and may not 19 affirm the ALJ on a ground upon which he did not rely.”). The ALJ called into question 20 the veracity of all Plaintiff’s statements because the July 1, 2019 evaluation report 21 indicated Plaintiff “had driven her own vehicle to the evaluation,” but she indicated in 22 adult function reports completed two months prior that she did not drive. (AR 97.) The 23 ALJ does not cite the record in his decision, but the report from the evaluation on the date 24 referenced states Plaintiff “stated she drove her own vehicle to the appointment.” (AR 25 833.) Defendant cites and quotes from a different portion of this report that indicates 26 Plaintiff’s “activities included operat[ing] her own motor vehicle for transportation” and 27 argues “[t]his suggested that her driving to the appointment was not an isolated activity 28 despite her contradictory statements.” (ECF 21 at 22 (quoting AR 835). The ALJ relied 1 on a single instance of Plaintiff driving to an evaluation to question the veracity of all her 2 statements while Defendant is relying on a broader statement and arguing it was not an 3 isolated instance. While these reasons both concern driving, they are not the same and the 4 Court cannot affirm the ALJ on a ground he did not rely on. See Garrison, 759 F.3d at 5 1010. 6 Additionally, Plaintiff accurately points out that the ALJ relied on a single instance 7 where Plaintiff was reported to have driven without any discussion of the evidence in the 8 record that she was driven to numerous other appointments by someone. (ECF 21 at 16- 9 17 (citing AR 855, 861, 863).) ALJs are permitted to weigh evidence and make findings 10 in assessing the credibility of a claimant’s testimony. See Gallant v. Heckler, 753 F.2d 11 1450, 1456 (1984). However, they cannot justify a conclusion by ignoring competent 12 evidence, particularly without any explanation. Id.; see Diedrich v. Berryhill, 874 F.3d 13 634, 642-43 (9th Cir. 2017) (ALJ noted certain activities the claimant could do, but 14 impermissibly ignored other evidence). The Court recognizes this is not an instance 15 where an ALJ has ignored a mountain of evidence to the contrary to reach a preferred 16 conclusion. Rather, the ALJ has relied on one note indicating she says she drove to the 17 appointment and there are at least three in which she is noted to have a driver. (AR 833 18 (drove), 855 (had driver), 861 (had driver), 863 (had driver).) However, it is how extreme 19 his conclusion is without any discussion that is problematic. The ALJ has questioned the 20 veracity of all Plaintiff’s statements, without identifying any of them, based on one 21 instance of driving to one appointment without any discussion of or even 22 acknowledgment of other records to the contrary. This is particularly concerning in this 23 case because, as discussed above, the ALJ has otherwise not connected the evidence in 24 the record to Plaintiff’s testimony and only barely does here by reference to her adult 25 function reports. 26 Additionally, questioning “the veracity of all of [Plaintiff’s] statements” based on a 27 single note seems more aligned with Plaintiff’s “apparent truthfulness” than “evaluat[ing 28 the intensity and persistence of symptoms and this is not permissible. The Ninth Circuit 1 has explained in addressing the removal of “credibility” from the regulatory guidance, 2 that SSR 16-3p “makes clear what our precedent already require: the assessments of an 3 individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence 4 of symptoms after the ALJ finds that the individual has a medically determinable 5 impairment(s) that could reasonably be expected to produce those symptoms,” not to 6 delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” 7 Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16-3p) (emphasis added). Although the ability 8 to drive or not drive might provide an indicator as the severity of symptoms, like the 9 other reasons discussed above, the ALJ has not connected this conclusion to any 10 symptoms and appears to be discounting unspecified testimony based on untruthfulness. 11 The Court finds the ALJ failed to provide specific clear and convincing reasons for 12 rejecting Plaintiff’s symptom testimony or allegations. 13 6. Harmless Error and Remand 14 When, as here, the ALJ has erred, the Court must consider whether the error was 15 harmless. “ALJ errors in social security cases are harmless if they are ‘inconsequential to 16 the ultimate non-disability determination.’” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th 17 Cir. 2015) (quoting Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 18 2006)); see also Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008) 19 (An ALJ’s reliance on erroneous reasons is harmless so long as the “remaining reasoning 20 and ultimate credibility determination were adequately supported by substantial 21 evidence”). However, “where the magnitude of an ALJ error is more significant, then the 22 degree of certainty of harmlessness must also be heightened before an error can be 23 determined to be harmless.” Marsh, 792 F.3d at 1173. 24 Here, as discussed above, the ALJ’s findings are not “sufficiently specific to 25 permit the court to conclude that the ALJ did not arbitrarily discredit the claimant’s 26 testimony.” Thomas, 278 F.3d at 958. More specifically, the decision does not explain 27 how the reasons cited undermine unidentified testimony. This lack of connection between 28 the ALJ’s cited reasons and any testimony throughout the decision not only fall short of 1 the clear and convincing standard, but also preclude the Court from finding this error 2 harmless. 3 However, the Court find’s remand of the case is required rather than an award of 4 benefits. “The rare circumstances that result in a direct award of benefits are not present 5 in this case.” Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017). “When the ALJ 6 denies benefits and the court finds error, the court ordinarily must remand to the agency 7 for further proceedings before directing an award of benefits.” Id. at 1045 (citing 8 Treichler, 775 F.3d at 1099). The credit-as-true analysis “permits, but does not require, a 9 direct award of benefits on review but only where the [ALJ] has not provided sufficient 10 reasoning for rejecting testimony and there are no outstanding issues on which further 11 proceedings in the administrative court would be useful.” Id. at 1044. 12 The Court need not address each step of the three-part analysis because here there 13 are “outstanding issues on which further proceedings in the administrative court would be 14 useful.” Id. At the second step, the Court considers “whether there are ‘outstanding issues 15 that must be resolved before a disability determination can be made’ and whether further 16 administrative proceedings would be useful.’” Id. (quoting Treichler, 775 F.3d at 1101). 17 “In evaluating this issue, [the Court] consider[s] whether the record as a whole is free 18 from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and 19 whether the claimant’s entitlement to benefits is clear under the applicable legal rules.” 20 Treichler, 775 F.3d at 1104–05. “Where . . . an ALJ makes a legal error, but the record is 21 uncertain and ambiguous, the proper approach is to remand the case to the agency.” Id. at 22 1105. As discussed above, the ALJ erred in evaluating Plaintiff’s symptom testimony, 23 and the ALJ’s erroneous findings are inadequate, but the primary issue is the failure to 24 explain how the evidence relied on undermines Plaintiff’s testimony. That could 25 potentially be rectified through further administrative review, making remand appropriate 26 in this case. 27 /// 28 /// 1 |} VI. CONCLUSION 2 The Court RECOMMENDS this case be REMANDED to the Social Security 3 || Administration for further proceedings for the reasons set forth above. 4 IT IS ORDERED that no later than January 9, 2023, any party to this action may 5 || file written objections with the Court and serve a copy to all parties. The document should 6 || be captioned “Objections to Report and Recommendation.” 7 IT IS FURTHER ORDERED that the reply to the objections shall be filed with the 8 Court and served on all parties no later than January 23, 2023. 9 Dated: December 19, 2022 p / / 10 on. Bernard G. Skomal 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28