Moore v. Saul ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JULIE R. M., Case No.: 20cv1608-GPC-MDD 11 Plaintiff, REPORT AND 12 v. RECOMMENDATION GRANTING PLAINTIFF’S MOTION FOR 13 KILOLO KIJAKAZI,1 Acting SUMMARY JUDGMENT AND 14 Commissioner of Social Security, DENYING DEFENDANT’S CROSS- MOTION FOR SUMMARY 15 Defendant. JUDGMENT 16 17 [ECF Nos. 16, 17] 18 19 Julie R. M. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) 20 for judicial review of the final administrative decision of the Commissioner of 21 the Social Security Administration (“Commissioner”) denying Plaintiff’s Title 22 II application for Period of Disability and Disability Insurance Benefits, and 23 Plaintiff’s Title XVI application for Supplemental Security Income. (AR at 24 25 26 1 Kilolo Kijakazi became Acting Commissioner of Social Security on July 9, 2021, and is therefore substituted for Andrew M. Saul as the Defendant in this action. See 42 U.S.C. § 1 16-32).2 Defendant filed a cross-motion and opposition to Plaintiff’s motion 2 for summary judgment, asking the Court to affirm the denial of benefits. 3 (ECF No. 17, hereinafter “Oppo.”). 4 For the reasons expressed herein, the Court RECOMMENDS 5 Plaintiff’s motion for summary judgment be GRANTED, Defendant’s cross- 6 motion for summary judgment be DENIED, and the case be REMANDED 7 for further administrative proceedings. 8 I. BACKGROUND 9 Plaintiff was born in September 1962. (AR at 30). On the alleged 10 disability onset date, January 1, 2010, Plaintiff was categorized as a younger 11 individual because she was 47 years old. 20 C.F.R. § 404.1563, 416.963. 12 Plaintiff was 54 years old when the instant application was filed on August 13 21, 2017, which categorized her as a person closely approaching advanced 14 age. (AR at 30). 15 A. Procedural History 16 On August 21, 2017, Plaintiff filed an application for Period of 17 Disability and Disability Insurance Benefits and an application for 18 Supplemental Security Income under Titles II and XVI of the Social Security 19 Act. (AR at 16). Plaintiff alleges a disability beginning on January 1, 2010. 20 (Id.). After her applications were denied initially and upon reconsideration, 21 Plaintiff requested an administrative hearing before an administrative law 22 judge (“ALJ”). (AR at 213-14). An administrative hearing was held on July 23 29, 2019. (AR at 38-78). Plaintiff appeared and was represented by attorney 24 Lisa Mouradian at the hearing. (AR at 40). Testimony was taken from 25 26 2 “AR” refers to the Certified Administrative Record filed on March 18, 2021. (ECF No. 1 Plaintiff and Victoria Rei, an impartial vocational expert (“VE”). (See AR at 2 38-78). On September 9, 2019, the ALJ issued a decision denying Plaintiff’s 3 claims.3 (AR at 16-32). 4 On November 1, 2019, Plaintiff sought review with the Appeals Council. 5 (AR at 258-59). On July 21, 2020, the Appeals Council denied Plaintiff’s 6 request for review and declared the ALJ’s decision to be the final decision of 7 the Commissioner of Social Security in Plaintiff’s case. (AR at 1-6). This 8 timely civil action followed. 9 II. DISCUSSION 10 A. Legal Standard 11 Sections 405(g) and 1383(c)(3) of the Social Security Act allow 12 unsuccessful applicants to seek judicial review of a final agency decision of 13 the Commissioner. 42 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial 14 review is limited in that a denial of benefits will not be disturbed if it is 15 supported by substantial evidence and contains no legal error. Id.; see also 16 Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 17 Substantial evidence “is a ‘term of art’ used throughout administrative 18 law to describe how courts are to review agency factfinding.” Biestek v. 19 Berryhill, 139 S. Ct. 1148, 1154 (2019). Courts look “to an existing 20 administrative record and ask[] whether it contains ‘sufficien[t] evidence’ to 21 support the agency’s factual determinations.” Id. “[T]he threshold for such 22 evidentiary sufficiency is not high. Substantial evidence, [the Supreme 23 Court] has said, is ‘more than a mere scintilla.’ It means—and means only— 24 25 26 3 As the ALJ’s decision explains, Plaintiff previously filed for Title II and Title XVI benefits in 2013. Her prior claims were denied and are not being reopened. (See AR at 16- 1 ‘such relevant evidence as a reasonable mind might accept as adequate to 2 support a conclusion.’” Id. The Ninth Circuit explains that substantial 3 evidence is “more than a mere scintilla but may be less than a 4 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012) 5 (quotation marks and citations omitted), superseded by regulation on other 6 grounds. 7 An ALJ’s decision is reversed only if it “was not supported by 8 substantial evidence in the record as a whole or if the ALJ applied the wrong 9 legal standard.” Id. “To determine whether substantial evidence supports 10 the ALJ’s determination, [the Court] must assess the entire record, weighing 11 the evidence both supporting and detracting from the agency’s conclusion.” 12 Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citing Mayes v. 13 Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The Court “may not reweigh 14 the evidence or substitute [its] judgment for that of the ALJ.” Id. “The ALJ 15 is responsible for determining credibility, resolving conflicts in medical 16 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 17 1039 (9th Cir. 1995). “When the evidence can rationally be interpreted in 18 more than one way, the court must uphold the [ALJ’s] decision.” Mayes, 276 19 F.3d at 459. 20 Section 405(g) permits a court to enter a judgment affirming, modifying 21 or reversing the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing 22 court may also remand the matter to the Social Security Administration for 23 further proceedings. Id. 24 B. Summary of the ALJ’s Findings 25 In rendering his decision, the ALJ followed the Commissioner’s five-step 26 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since 1 January 1, 2010. (AR at 19). 2 At step two, the ALJ found that Plaintiff had the following severe 3 impairments: “1) a mental impairment variously diagnosed as bipolar 4 disorder/major depressive disorder and PTSD; and 2) obesity.” (Id.). 5 At step three, the ALJ found that Plaintiff did not have an impairment 6 or combination of impairments that met or medically equaled one of the 7 impairments listed in the Commissioner’s Listing of Impairments. (AR at 21) 8 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 9 404.1525, 404.1526, 416.920(d), 416.925 and 416.926)). 10 Next, after considering the entire record, the ALJ determined that 11 Plaintiff had the residual functional capacity (“RFC”) to perform medium 12 work with the following limitations: 13 [the claimant] could occasionally climb ladders, ropes, or scaffolds and could perform all other postural activities on a frequent basis 14 (climbing ramps and stairs, balancing, stooping, kneeling, 15 crouching, and crawling); could sustain attention and concentration for at least 2-hour intervals at a time for only unskilled work duties 16 as would be consistent with an SVP level of 1 to 2 but no greater 17 than 2; and should also have no greater than the occasional interaction with any coworkers, or supervisors, or members of the 18 general public; and should also not be exposed to any frequent 19 changes in the workplace environment. 20 (AR at 23). 21 The ALJ stated that his RFC assessment was based on all the evidence 22 and the extent to which Plaintiff’s symptoms are consistent with the objective 23 medical evidence and other evidence. (Id.). The ALJ also stated that he 24 considered the opinion evidence and prior administrative medical findings in 25 accordance with the requirements of 20 C.F.R. 404.1520c and 416.920c. 26 The ALJ then proceeded to step four of the sequential evaluation 1 housekeeper/cleaner position and that an individual with the above RFC 2 would be able to perform the job of a housekeeper/cleaner. (AR at 30). The 3 ALJ found that this job does not qualify as past relevant work because the 4 evidence does not demonstrate that Plaintiff performed the job at the level of 5 substantial gainful activity. (Id.). 6 For the purposes of his step five determination, the ALJ accepted the 7 testimony of the VE. (AR at 31). The VE identified the jobs of laundry 8 laborer (DOT No. 361.687-018); industrial cleaner (DOT No. 381.687-018); 9 and kitchen helper (DOT No. 318.687-010) as jobs Plaintiff could perform, 10 and which exist in significant numbers in the national economy. (AR at 31). 11 The ALJ therefore found that Plaintiff was not disabled. (AR at 32). 12 C. Issues in Dispute 13 The Court’s review of alleged error by the ALJ was significantly 14 complicated by Plaintiff’s counsel’s inadequate briefing. Many of Plaintiff’s 15 arguments were underdeveloped and lacked supporting legal authority or 16 were simply incoherent. The Court is cognizant that Social Security 17 claimants already face long waiting times for resolution of their cases and 18 that Plaintiff’s case should not be prejudiced by her counsel’s inadequate 19 briefing. Therefore, the Court considers Plaintiff’s arguments to the best of 20 its ability despite these limitations. 21 The issues in dispute are: (1) whether the ALJ erred in his analysis of 22 the opinions from Plaintiff’s treating providers; (2) whether the ALJ erred in 23 his mental functioning RFC determination; (3) whether the ALJ erred in 24 evaluating Plaintiff’s subjective symptom testimony; and (4) whether the ALJ 25 erred at step five by finding Plaintiff not disabled based on the Medical- 26 Vocational Guidelines. 1 1. Medical Opinions 2 Plaintiff argues that the ALJ erred in finding the opinions by Dr. 3 Tartaglione and Rhonda Smallwood, L.M.F.T. (“Ms. Smallwood”) not 4 significantly persuasive. (Reply at 3). Defendant argues the ALJ properly 5 found the opinions of Dr. Tartaglione and Ms. Smallwood not significantly 6 persuasive. (Oppo. at 19-22). 7 As an initial matter, the parties debate whether the regulatory 8 amendments promulgated by the SSA for cases, such as this one, filed after 9 March 27, 2017 invalidate the treating source rule in the Ninth Circuit. (See 10 MSJ at 15-16, Reply at 2-3, Oppo. at 10-18). The treating source rule 11 “allowed an ALJ to reject a treating or examining physician’s uncontradicted 12 medical opinion only for ‘clear and convincing reasons,’ and allowed a 13 contradicted opinion to be rejected only for ‘specific and legitimate reasons’ 14 supported by substantial evidence in the record.” Kathy Jean T. v. Saul, No. 15 20cv1090-RBB, 2021 U.S. Dist. LEXIS 100698, at *14 (S.D. Cal. May 27, 16 2021) (citing Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017)). The 17 2017 regulations promulgated by the SSA state that the ALJ need “not defer 18 or give any specific evidentiary weight, including controlling weight, to any 19 medical opinion(s) or prior administrative finding(s), including those from [a 20 claimant’s] medical sources.” See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). 21 Plaintiff contends that the Ninth Circuit treating source rule is still 22 applicable despite the new regulations. (See Reply at 2-3). Through 23 regulation, the Social Security Administration may properly displace judicial 24 precedent when an administrative agency intervenes by providing an 25 “authoritative and reasonable interpretation of a statute.” See Lambert v. 26 Saul, 980 F.3d 1266, 1268, 1275 (9th Cir. 2020). Additionally, the Supreme Court has stated that “[o]nly a judicial precedent holding that the statute 1 unambiguously forecloses the agency’s interpretation, and therefore contains 2 no gap for the agency to fill, displaces a conflicting agency construction.” 3 Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 4 967, 982-83 (2005). 5 The Ninth Circuit has not yet issued a decision clarifying whether it 6 will continue to require an ALJ to include “specific and legitimate reasons” 7 for rejecting contradicted opinions from a claimant’s treating providers. 8 District courts in the 9th Circuit generally have determined that the Circuit’s 9 prior rule providing deference to treating providers no longer applies because 10 of the new regulations. See, e.g., Kathy Jean T., 2021 U.S. Dist. LEXIS 11 100698, at *14 (“This measure of deference to a treating physician is no 12 longer applicable under the 2017 revised regulations.”). But see Kathleen G. 13 v. Comm’r of Soc. Sec., 2020 U.S. Dist. LEXIS 210471, at *7-8 (W.D. Wash. 14 Nov. 10, 2020) (finding that the “specific and legitimate” standard for 15 rejecting contradicted opinions of a treating doctor continues to serve as a 16 “benchmark against which the Court evaluates [the ALJ’s] reasoning”). This 17 Court agrees with the numerous district courts that found the treating source 18 rule is inconsistent with the SSA’s 2017 regulations, which effectively 19 displace or override it. See, e.g., Jones v. Saul, No. 2:19-cv-01273 AC, 2021 20 U.S. Dist. LEXIS 29751, at *27 (E.D. Cal. Feb. 16, 2021); Joseph Perry B. v. 21 Saul, No. SACV 20-1196-KS, 2021 U.S. Dist. LEXIS 59742, at *7 (C.D. Cal. 22 Mar. 29, 2021) (citing Brand X, 545 U.S. at 981-82). Accordingly, the Court 23 will address the ALJ’s evaluation of Dr. Tartaglione’s and Ms. Smallwood’s 24 opinions under the 2017 regulations. The Court notes that Plaintiff’s 25 arguments, although based on the treating source rule, are still capable of 26 analysis under the new regulations. 1 persuasiveness of medical source opinions by considering enumerated factors. 2 20 C.F.R. §§ 404.1520c(c)(1)-(5); 416.920c(c)(1)-(5). The “most important 3 factors” are consistency and supportability. Id. §§ 404.1520c(b)(2); 4 416.920c(b)(2). The ALJ is not required to explain how they consider the 5 remaining factors (the medical source’s relationship with the claimant, 6 specialization, or other factors) unless the ALJ finds that “two or more 7 medical opinions or prior administrative medical findings about the same 8 issue are both equally well supported . . . and consistent with the record . . . 9 but are not exactly the same.” See 20 C.F.R. §§ 404.1520c(b)(2-3); 10 416.920c(b)(2-3). 11 The revised regulations describe supportability as: “[t]he more relevant 12 the objective medical evidence and supporting explanations presented by a 13 medical source are to support his or her medical opinion(s) . . . , the more 14 persuasive the medical opinion(s) . . . will be.” 20 C.F.R. §§ 404.1520c(c)(1), 15 416.920c(c)(1). Consistency is described as: “[t]he more consistent a medical 16 opinion(s) . . . is with the evidence from other medical sources and 17 nonmedical sources in the claim, the more persuasive the medical opinion(s) . 18 . . will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). 19 a. Dr. Tartaglione 20 Dr. Tartaglione is a psychiatrist who began treating Plaintiff in 21 September 2017. (AR at 1330). On June 18, 2019, Dr. Tartaglione found 22 Plaintiff “has marked limitations and is not able to sustain work.” (MSJ at 23 15, AR at 1330-35). The ALJ found Dr. Tartaglione’s opinion had “no 24 significant persuasiveness,” in relevant part, because his treatment notes did 25 not support his own opinion. (AR at 27-28). 26 i. Supportability 1 the opinion. (MSJ at 15, Reply at 7). Defendant contends it is proper to find 2 an opinion less persuasive when clinical findings do not support the degree of 3 limitations found in an opinion. (Oppo. at 19). 4 Inconsistency between a physician’s treatment notes and their opinion 5 is an acceptable reason to discount the source’s opinion. See, e.g., Valentine v. 6 Comm’r Soc. Sec. Admin., 574 5.3d 685, 692-93 (9th Cir. 2009); Bayliss v. 7 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Jones v. Saul, No. 2:19-cv- 8 01273 AC, 2021 U.S. Dist. LEXIS 29751, at *29 (E.D. Cal. Feb. 16, 2021) 9 (holding in the context of the 2017 revised regulations, that the ALJ 10 reasonably found a treating physician’s opinion was not persuasive where it 11 was inconsistent with the doctor’s own treatment notes). 12 The ALJ specifically identified two inconsistencies within Dr. 13 Tartaglione’s treatment notes and his opinion. (AR at 28). First, the ALJ 14 explained that Dr. Tartaglone’s opinion was not supported by his October 15 2017 mental examination which found Plaintiff was alert and oriented times 16 three, had cooperative behavior, normal speech, articulate language, linear 17 thought process, appropriate associations, normal thought content, no 18 delusions, no suicidal ideation, no homicidal ideation, appropriate judgment 19 and insight, appropriate fund of knowledge, appropriate attention 20 span/concentration, and appropriate memory, with euthymic mood. (AR at 21 28, 720). Second, on June 18, 2019, Dr. Tartaglione found Plaintiff was 22 cooperative with normal speech, articulate language, linear thought process, 23 appropriate associations, normal thought content, no delusions, no suicidal 24 ideation, no homicidal ideation, was alert and oriented times three, had 25 appropriate judgment and insight, appropriate fund of knowledge, 26 appropriate attention span/concentration, and appropriate memory, with 1 The Court’s review of all of Dr. Tartaglione’s mental examination 2 notes reveals that during each examination he made mental 3 examination findings that were nearly identical to those referenced by 4 the ALJ. (See AR at 680-83, 715-22, 1202-05, 1209-16, 1224-35, 1244- 5 47). The treating notes referenced by the ALJ are fair examples of how 6 the opinion of this treating provider was insufficiently supported, rather 7 than inconsistencies read out of context, as Plaintiff implies. (Reply at 8 6-7). Accordingly, the Court finds that the ALJ properly determined Dr. 9 Tartaglione’s June 18, 2019 opinion was not supported by his own 10 treatment records. 11 ii. Consistency 12 Plaintiff next argues the ALJ errantly assessed Dr. Tartaglione’s 13 opinion because it is consistent with the opinions of Dr. DiFrancesca, Ph.D., 14 Psychiatrist Dr. Watkins, Psychiatrist Dr. Peng, and Psychiatrist Stemen 15 who found Plaintiff has bipolar disorder with hypomania and one major 16 depressive episode and that she has difficulty communicating and getting 17 along with others.4 (See MSJ at 14-16, Reply at 2). Defendant counters that 18 the ALJ’s finding was consistent with the evidence from other sources. 19 (Oppo. at 20). 20 In support of her argument, Plaintiff cites her discharge summary from 21 Patton State Hospital, completed by Dr. Peng. (MSJ at 14). This summary 22 included a bipolar disorder diagnosis, but otherwise did not make the 23 findings Plaintiff describes. (See AR at 373-75). Plaintiff provides no 24 25 4 Plaintiff also argues that Psychotherapist Rhonda Smallwood, L.M.F.T.’s evaluation is 26 consistent with Dr. Tartaglione’s. (Reply at 2, AR at 733-38). However, as the Court discusses below, the ALJ found “no significant persuasiveness” in Ms. Smallwood’s 1 argument explaining what the evaluations by Dr. Watkins and Psychiatrist 2 Stemen were or how they were consistent with Dr. Tartaglione’s opinion. The 3 Court is unable to identify any opinions or records by Dr. Watkins or Dr. 4 Stemen within the Administrative Record. 5 Katherine R. DiFrancesca, Ph.D., conducted a psychological evaluation 6 of Plaintiff on June 15, 1999. (AR at 91-95). Dr. DiFrancesca’s findings 7 include that Plaintiff has a bi-polar disorder with hypomania and has had at 8 least one major depressive episode, but otherwise do not include specific 9 findings regarding Plaintiff’s mental capacity. (AR at 91-94, MSJ at 14). 10 Based on the foregoing, the Court finds the sources highlighted by Plaintiff 11 are insufficient to disturb the ALJ’s finding that Dr. Tartaglione’s opinion 12 was not consistent with the overall evidence. See Mayes, 276 F.3d at 459 13 (“When the evidence can rationally be interpreted in more than one way, the 14 court must uphold the [ALJ’s] decision.”). 15 b. Ms. Smallwood 16 Plaintiff has been receiving therapy from Rhonda Smallwood, L.M.F.T. 17 since 2004. (AR at 733). Plaintiff argues that Ms. Smallwood’s evaluation 18 that Plaintiff’s episodes of major depression can last two to three months is 19 consistent with Dr. Tartaglione’s opinion. (Reply at 2, AR at 737). The ALJ 20 found “no significant persuasiveness” in Ms. Smallwood’s December 2017 21 opinion. (AR at 29, 733-38). Plaintiff appears to argue that the ALJ’s finding 22 was erroneous; however, Plaintiff raises this argument without specificity, 23 explaining only that Plaintiff saw Ms. Smallwood consistently and that Ms. 24 Smallwood was a specialist in mental health. (See MSJ at 16, Reply at 4). 25 The Court is not required to address issues raised without specificity. See 26 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 1 Even if Plaintiff had specifically raised the argument, the ALJ 2 appropriately addressed the mandatory factors of supportability and 3 consistency. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2) (2017); (AR at 4 29) (finding Ms. Smallwood’s records do not describe mental status 5 examination findings supporting her recommended limitations and that her 6 opinion is inconsistent with the overall medical record describing “generally 7 unremarkable findings”) (citing AR at 405-06, 436, 460, 483-84, 529, 720, 737, 8 1202-03, 1292-1310). 9 c. Specialization and Long-Term Treatment 10 Finally, Plaintiff argues the ALJ was required to address Dr. 11 Tartaglione and Ms. Smallwood as specialists in mental health and sources 12 with a long-term relationship with the claimant. (See Reply at 3). The ALJ 13 was only required to evaluate supportability and consistency because he did 14 not find two or more medical opinions or prior administrative medical 15 findings about the same issue to be equally well supported and consistent 16 with the record, but not exactly the same. (See AR at 27-29). As a result, the 17 ALJ did not err by omitting his reasoning regarding the factors of 18 specialization and relationship with the claimant as Plaintiff contends. See 19 20 C.F.R. § 416.920c(b)(2) (“We may, but are not required to, explain how we 20 considered the factors in paragraphs (c)(3) through (c)(5) of this section, as 21 appropriate, when we articulate how we consider medical opinions and prior 22 administrative medical findings in your case record.”). Based on the 23 foregoing, the ALJ sufficiently evaluated Dr. Tartaglione’s and Ms. 24 Smallwood’s opinions. 25 2. Mental RFC Determination 26 Plaintiff argues that the ALJ’s mental RFC determination was not 1 underdeveloped and lacks any meaningful analysis. (MSJ at 16-17, Reply at 2 5-6). Additionally, it is dependent on Plaintiff’s prior arguments that the ALJ 3 improperly addressed the medical opinions of Dr. Tartaglione and Ms. 4 Smallwood. The Court has already determined that the ALJ properly 5 assessed the medical opinion evidence. Therefore, Plaintiff has not 6 established that the ALJ’s mental RFC determination is unsupported by 7 substantial evidence. See Carmickle, 533 F.3d at 1161 n.2 (arguments raised 8 without specificity need not be addressed). 9 3. Plaintiff’s Subjective Symptom Testimony 10 Plaintiff makes several incoherent arguments regarding her subjective 11 symptom testimony and the RFC regarding her knee and hip disorder.5 (MSJ 12 at 17-23). The only clear argument is that the ALJ failed to provide sufficient 13 reasons to reject her testimony regarding her knee and hip limitations. (MSJ 14 at 21-22, Reply at 7-8). Plaintiff explains that she testified about her knee 15 and hip injuries and the pain that results when she exerts herself. (MSJ at 16 18, 20). Defendant counters that the ALJ “explicitly addressed Plaintiff’s 17 claims of disabling knee and hip-related pain and evaluated how Plaintiff’s 18 alleged pain impacted her functioning, if at all.” (Oppo. at 23). 19 At the administrative hearing, Plaintiff testified that she has pain in 20 her knees and hips as a result of being involved in five major motor accidents. 21 (AR at 57). Plaintiff testified that she can stand for about 15 minutes and 22 23 5 To the extent that Plaintiff argues the ALJ erred by discrediting Plaintiff’s subjective 24 symptom testimony about her mental limitations without clear and convincing reasons, her argument fails. (See Reply at 7-8). Plaintiff contends her activities of daily living are 25 insufficient to reject her testimony. (MSJ at 16-17, Reply at 7). The argument is underdeveloped, and in any event, the ALJ provided specific, clear, and convincing reasons 26 to reject her testimony. (AR at 21-22, 24) (comparing Plaintiff’s testimony with the medical evidence of record and her daily activities and providing conclusions regarding the 1 can sit for about an hour, but experiences pain in her hips while sitting. (AR 2 at 59). She testified that she “was not able to do cleaning work . . . . After 3 these car accidents, I can’t take it anymore. I just can’t . . . . I cannot sit 4 down and clean and reach under things, I can’t do it.” (AR at 77). 5 The ALJ only referenced her knee and hip pain testimony by noting, 6 “She was on ibuprofen and said she now takes Tylenol 4,000 mg per day for 7 knee and hip pain.” (AR at 24). The ALJ then determined, 8 “After careful consideration of the evidence, I find that the claimant’s medically determinable impairments could reasonably 9 be expected to cause the alleged symptoms; however, the 10 claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with 11 the medical evidence and other evidence in the record for the 12 reasons explained in this decision.” 13 (Id.). 14 The ALJ further stated, 15 “As for the claimant’s statements about the intensity, persistence, and limiting effects of her symptoms, they are inconsistent 16 because objective findings are not remarkable, especially 17 physically, and include normal gait, normal back range of motion, 5/5 motor strength, intact sensation and deep tendon reflexes, no 18 edema, normal hip findings, full range of motion of all extremity 19 joints, and/or full range of motion of the right or right and left knee joints. Exhibits 4F/2-3; 7F/29, 38, 56, 60; 8F/8; 14F/56, 66.” 20 (Id.). 21 “[W]here, as here, the ALJ ‘determines that a claimant for Social 22 Security benefits is not malingering and has provided objective medical 23 evidence of an underlying impairment which might reasonably produce the 24 pain or other symptoms she alleges, the ALJ may reject the claimant’s 25 testimony about the severity of those symptoms only by providing specific, 26 clear, and convincing reasons for doing so.’” Lambert v. Saul, 980 F.3d 1266, 1 (9th Cir. 2015)). “An ALJ does not provide specific, clear, and convincing 2 reasons for rejecting a claimant’s testimony by simply reciting the medical 3 evidence in support of his or her residual functional capacity determination.” 4 Brown-Hunter, 806 F.3d at 489. The ALJ is required to “specify which 5 testimony [he] finds not credible, and then provide clear and convincing 6 reasons, supported by evidence in the record, to support that credibility 7 determination.” Id. A “line-by-line exegesis of the claimant’s testimony” is 8 not required, but the ALJ must do more than offer “non-specific conclusions 9 that [the claimant’s] testimony was inconsistent with her medical treatment.” 10 Lambert, 980 F.3d at 1277. 11 The Court finds the ALJ erred by failing to specifically identify what 12 testimony about Plaintiff’s alleged knee and hip pain he found not credible. 13 The ALJ generically found that “the claimant’s statements concerning the 14 intensity, persistence and limiting effects of these symptoms are not entirely 15 consistent with the medical evidence and other evidence in the record for the 16 reasons explained in this decision.” (AR at 24). The Ninth Circuit has 17 repeatedly found this language to be insufficient and “boilerplate.” See 18 Lambert, 980 F.3d at 1277; Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 19 1090, 1103 (9th Cir. 2014); see also Brown-Hunter, 806 F.3d at 493 (finding 20 the statement to be “conclusory” and that it “failed to identify specifically 21 which of Brown-Hunter’s statements she found not credible and why”). This 22 Court “cannot review whether the ALJ provided specific, clear, and 23 convincing reasons for rejecting [Plaintiff’s] pain testimony where, as here, 24 the ALJ never identified which testimony [he] found not credible, and never 25 explained which evidence contradicted that testimony.” Lambert, 980 F.3d at 26 1277 (quoting Brown-Hunter, 806 F.3d at 494); see also Vladimir B. v. Saul, 1 Cal. Jan. 29, 2021) (finding the ALJ erred by not adequately identifying the 2 statements or testimony he sought to discredit); Eldridge v. Berryhill, No. 3 17cv497-JLS (BLM), 2018 U.S. Dist. LEXIS 87985, at *22-23 (S.D. Cal. May 4 23, 2018) (“The ALJ’s vague references to Plaintiff's statements as 5 ‘allegations of disabling limitations’ are not specific identifications of which 6 statements are being discredited.”), adopted by Eldridge v. Berryhill, No. 17- 7 CV-497-JLS (BLM), 2018 U.S. Dist. LEXIS 113699, (S.D. Cal. July 9, 2018). 8 While the ALJ provided a detailed overview of Plaintiff’s medical 9 history, “providing a summary of medical evidence . . . is not the same as 10 providing clear and convincing reasons for finding the claimant’s symptom 11 testimony not credible.” Brown-Hunter, 806 F.3d at 494. The Court cannot 12 infer that the ALJ discredited Plaintiff’s testimony to the extent that it 13 conflicted with the medical evidence where the ALJ does not provide his 14 reasoning. Id. The Court agrees with Defendant that the ALJ identified 15 medical evidence that contradicts the degree of limitations Plaintiff alleged 16 regarding her hip and knee pain and functionality. (See Oppo. at 23-24). 17 While it would not be difficult to fill in the ALJ’s reasoning given his 18 description of the conflicting medical evidence, the ALJ is solely responsible 19 for making credibility determinations. Lambert, 980 F.3d at 1278 (citing 20 Brown-Hunter, 806 F.3d at 494) (“‘[T]he credibility determination is 21 exclusively the ALJ’s to make,’ and ‘[w]e are constrained to review the 22 reasons the ALJ asserts.’”); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 23 2014) (“We review only the reasons provided by the ALJ in the disability 24 determination and may not affirm the ALJ on a ground upon which he did 25 not rely.”). Accordingly, this Court lacks authority to fill in the ALJ’s 26 reasoning. 1 The Court must next consider whether the error was harmless. “An 2 error is harmless only if it is inconsequential to the ultimate nondisability 3 determination, or if despite the legal error, the agency’s path may reasonably 4 be discerned.” Brown-Hunter, 806 F.3d at 494 (citations and internal 5 quotation marks omitted). 6 Lambert, Brown-Hunter, and Treichler found errors based on failure to 7 provide “specific, clear, and convincing reasons” for rejecting Plaintiff’s 8 subjective symptom testimony not harmless. See Lambert, 980 F.3d at 1278; 9 Brown-Hunter, 806 F.3d at 494-95; Treichler, 775 F.3d at 1103. Similarly, 10 here, the ALJ did not identify what testimony from Plaintiff he found not 11 credible. The Court must find this error was not harmless “because it 12 precludes us from conducting a meaningful review of the ALJ’s reasoning.” 13 Brown-Hunter, 806 F.3d at 489. 14 Further, Plaintiff’s testimony that she “cannot sit down and clean and 15 reach under things,” continues to have pain in her knees and hips, “can sit 16 down for maybe an hour maximum” and “stand about 15 minutes” appears 17 inconsistent with the ALJ’s RFC determination that she could climb ramps 18 and stairs, balance, stoop, kneel, crouch, and crawl on a frequent basis. (AR 19 at 23, 57-60, 77). The ALJ’s adverse finding regarding the severity of 20 Plaintiff’s knee and hip pain was therefore not “inconsequential to the 21 ultimate nondisability determination.” Brown-Hunter, 806 F.3d at 494. 22 Accordingly, this Court recommends the District Court determine that 23 the ALJ’s failure to provide “specific, clear, and convincing reasons” for 24 rejecting Plaintiff’s testimony regarding her knee and hip limitations and 25 pain was legal error and the error was not harmless. 26 4. The ALJ’s Step Five Finding Lastly, Plaintiff argues that the ALJ erred at step five by finding 1 Plaintiff not disabled under the Medical-Vocational Guidelines when the 2 ALJ’s RFC determination significantly reduced the range of medium work 3 Plaintiff could perform. (MSJ at 22-24). 4 Plaintiff’s argument lacks merit because the ALJ did not rely on the 5 Medical-Vocational Guidelines, commonly referred to as “the grids,” in 6 determining that Plaintiff was not disabled at step five. (AR at 31) (“The 7 vocational expert testified that given all of these factors the individual would 8 be able to perform the requirements of representative occupations . . .”). 9 Instead, the ALJ appropriately relied on VE testimony that a hypothetical 10 individual with Plaintiff’s RFC and subject to the relevant additional 11 postural, environmental, and mental limitations, would be capable of 12 performing the representative occupations identified at step five. See 13 generally, Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (“The 14 Commissioner can meet this burden [of establishing that the claimant can 15 perform a significant number of other jobs in the national economy] through 16 the testimony of a vocational expert or by reference to the Medical-Vocational 17 Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.”). 18 III. REMAND FOR FURTHER PROCEEDINGS 19 The law is well established that the decision whether to remand for 20 further proceedings or simply to award benefits is within the discretion of the 21 Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); 22 McCallister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. 23 Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand for further 24 proceedings is warranted where additional administrative proceedings could 25 remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 26 (9th Cir. 1984); Lewin, 654 F.2d at 635. When error exists in an administrative determination, “the proper course, except in rare 1 ||circumstances, is to remand to the agency for additional investigation or 9 ||exploration.” INS v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotation 3 ||marks omitted); Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). 4 || Accordingly, this case should be remanded for further administrative action 5 ||consistent with the findings presented herein. 6 IV. CONCLUSION 7 Based on the foregoing, the Court RECOMMENDS that the District g Court GRANT Plaintiff's motion for summary judgment, DENY Defendant’s 9 ||cross-motion for summary judgment, and REMAND this case for further 10 |}administrative action consistent with the findings presented herein. This 11 || Report and Recommendation of the undersigned Magistrate Judge is 12 ||submitted to the United States District Judge assigned to this case, pursuant 13 ||to the provisions of 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the 14 || United States District Court for the Southern District of California. 15 IT IS HEREBY ORDERED that any written objection to this report 16 || must be filed with the Court and served on all parties no later than 17 || November 9, 2021. The document should be captioned “Objections to Report 18 ||and Recommendation.” 19 IT IS FURTHER ORDERED that any reply to the objections shall be 90 || filed with the Court and served on all parties no later than November 16, 91 2021. The parties are advised that failure to file objections within the 992 ||specified time may waive the right to raise those objections on appeal of the 93 ||Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 24 IT IS SO ORDERED. Dated: October 26, 2021 tlh | [ Hon. Mitchell D. Dembin 27 United States Magistrate Judge