Young v. O'Malley ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 DAVID ALLEN YOUNG, Case No. 2:24-cv-00552-EJY 5 Plaintiff, ORDER 6 v. 7 MARTIN O’MALLEY, Commissioner of Social Security, 8 Defendants. 9 10 Pending before the Court is Plaintiff David Young’s Complaint seeking review of the final 11 decision of the Commissioner of Social Security (the “Commissioner”) denying his applications for 12 benefits (ECF No. 6), and his Brief in support thereof (ECF No. 11). Also pending is the 13 Commissioner’s Cross-Motion to Affirm. ECF No. 13. The Court reviewed all briefing related to 14 these Motions and finds as follows. 15 I. Background 16 Plaintiff filed applications for Social Security Disability Insurance (“SSDI”) benefits and 17 Supplemental Security Income (“SSI”) benefits on October 21, 2020. AR 478, 483. In his 18 application, Plaintiff alleged he became disabled beginning on January 1, 2016. Id. Plaintiff alleged 19 his disability arose from various conditions of the lumbar and cervical spine, a pinched nerve in his 20 right leg, irritable bowel syndrome (“IBS”), and depression. AR 516. Upon an initial determination 21 on April 28, 2021, Plaintiff was found not to be disabled. AR 339-40. A reconsideration followed 22 on March 29, 2022, when Plaintiff was again found not to be disabled. AR 341-42. Plaintiff then 23 filed a written request for a hearing before an Administrative Law Judge (“ALJ”) on April 11, 2022, 24 which took place by telephone on August 3, 2023. AR 413. On April 5, 2023, the ALJ returned a 25 decision of not disabled. AR 15. Following a denial of review by the Appeals Council, Plaintiff 26 filed this civil action on March 21, 2024 challenging the ALJ’s determination on grounds that the 27 ALJ failed to articulate clear and convincing reasons for rejecting his testimony regarding his 1 II. Standard of Review 2 The reviewing court shall affirm the Commissioner’s decision if the decision is based on 3 correct legal standards and the legal findings are supported by substantial evidence in the record. 42 4 U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 5 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable 6 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 7 (1971) (internal citation and quotation marks omitted). In reviewing the Commissioner’s alleged 8 errors, the Court must weigh “both the evidence that supports and detracts from the 9 [Commissioner’s] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). 10 “When the evidence before the ALJ is subject to more than one rational interpretation, we 11 must defer to the ALJ’s conclusion.” Batson, 359 F.3d at 1198, citing Andrews v. Shalala, 53 F.3d 12 1035, 1041 (9th Cir. 1995). A reviewing court, however, “cannot affirm the decision of an agency 13 on a ground that the agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. 14 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). Finally, the court may not 15 reverse an ALJ’s decision on account of an error that is harmless. Burch v. Barnhart, 400 F.3d 676, 16 679 (9th Cir. 2005) (internal citation omitted). “[T]he burden of showing that an error is harmful 17 normally falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 18 396, 409 (2009). 19 III. Discussion 20 To establish whether a claimant is disabled under the Act, there must be substantial evidence 21 that: 22 (a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be 23 expected to last for a continuous period of not less than twelve months; and 24 (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other 25 substantial gainful employment that exists in the national economy. 26 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), citing 42 U.S.C. § 423(d)(2)(A). “If a claimant 27 meets both requirements, he or she is disabled.” Id. 1 The ALJ employs a five-step sequential evaluation process to determine whether a claimant 2 is disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. 3 § 404.1520(a). Each step is potentially dispositive and “if a claimant is found to be ‘disabled’ or 4 ‘not-disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 5 180 F.3d at 1098; 20 C.F.R. § 404.1520. The claimant carries the burden of proof at steps one 6 through four, and the Commissioner carries the burden of proof at step five. Tackett, 180 F.3d at 7 1098. 8 The five steps are: 9 Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” within the meaning of the Social Security Act 10 and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step 11 one and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(b). 12 Step 2. Is the claimant’s impairment severe? If not, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant’s 13 impairment is severe, then the claimant’s case cannot be resolved at step two and the evaluation proceeds to step three. See 20 C.F.R. § 404.1520(c). 14 Step 3. Does the impairment “meet or equal” one of a list of specific impairments 15 described in the regulations? If so, the claimant is “disabled” and therefore entitled to disability insurance benefits. If the claimant’s impairment neither meets nor 16 equals one of the impairments listed in the regulations, then the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. See 20 17 C.F.R. § 404.1520(d). 18 Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is “not disabled” and is not entitled to disability insurance 19 benefits. If the claimant cannot do any work he or she did in the past, then the claimant’s case cannot be resolved at step four and the evaluation proceeds to the 20 fifth and final step. See 20 C.F.R. § 404.1520(e). 21 Step 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and therefore entitled to disability insurance benefits. See 20 C.F.R. § 22 404.1520(f)(1). If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy 23 that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in “significant numbers” in the national 24 economy that claimant can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, 25 subpt. P, app. 2. If the Commissioner meets this burden, the claimant is “not disabled” and therefore not entitled to disability insurance benefits. See 20 C.F.R. 26 §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the claimant is “disabled” and therefore entitled to disability benefits. See id. 27 1 IV. Summary of ALJ’s Findings 2 At step one, the ALJ determined Plaintiff did not engage in substantial gainful activity after 3 January 1, 2016, the alleged onset date of disability. AR 21. At step two, the ALJ found Plaintiff 4 suffered from medically determinable severe impairments consisting of “disorders of the skeletal 5 spine, abnormality of a major joint, other disorders of gastrointestinal system, hernias, and 6 inflammatory bowel disease.” Id. At step three, the ALJ found Plaintiff’s impairment or 7 combination of impairments did not meet or medically equal the severity of any listed impairment 8 in 20 C.F.R., Part 404, Subpart P, Appendix 1. AR 23. 9 In preparation for step four, the ALJ determined Plaintiff had the residual functional capacity 10 (“RFC”) to: 11 [P]erform sedentary work as defined in 20 CFR 404.1567(a) 416.967(a) except that the claimant can lift and/or carry up to 10 pounds occasionally and less than 10 12 pounds frequently; can stand and/or walk for two hours out of an eight-hour workday; and can sit for six hours out of an eight-hour workday. The claimant can 13 never climb ladders/ropes/scaffolds. The claimant can never crawl. The claimant can occasionally climb ramps/stairs, occasionally stoop, occasionally kneel, and 14 occasionally crouch. The claimant can occasionally reach overhead. The Claimant can frequently reach laterally. The claimant is limited to no more than occasional 15 exposure to extreme temperatures, vibration, and hazards such as unprotected heights and dangerous moving machinery like chainsaws and jackhammers. 16 17 Id. 18 At step four, the ALJ determined Plaintiff was not able to perform any past relevant work he 19 had performed in the past fifteen years. AR 30. In making this finding, the ALJ considered the 20 testimony of the vocational expert, who testified that “within the last 15 years the claimant has past 21 relevant work as a restaurant manager (DOT#189.167-018, light skilled work, SVP 6, performed at 22 heavy); cook (DOT#131.374-014, light semi-skilled work, SVP 3, performed at medium; and an 23 orderly (DOT#355.674-018; heavy semiskilled work, SVP 4, performed at medium).” Id. 24 At step five, the ALJ determined that “considering the claimant’s age, education, work 25 experience, and residual functional capacity, the claimant is capable of making a successful 26 adjustment to other work that exists in significant numbers in the national economy.” In making this 27 finding, the ALJ considered the testimony of the vocational expert, who testified that: 1 [T]he individual would be able to perform the requirements of representative occupations such as a hand packager (DOT#920.687-030, unskilled sedentary 2 work, SVP 2), of which there are approximately 20,000 positions in the national economy; an information clerk (DOT#237.367-046, unskilled sedentary work, SVP 3 2), of which there are approximately 86,000 positions in the national economy; and an office clerk (DOT#249.587-014, unskilled sedentary work, SVP 2), of which 4 there are approximately 100,000 positions in the national economy. 5 AR 31. 6 The ALJ concluded that “[t]he claimant has not been under a disability, as defined in the 7 Social Security Act, from January 1, 2016, through [April 5, 2023,] the date of this decision.” AR 8 32. The ALJ therefore denied Plaintiff’s applications for SSDI and SSI benefits because he was not 9 disabled under sections 216(i) and 223(d) and section 1614(a)(3)(A), respectively, of the Social 10 Security Act. Id. 11 V. Discussion 12 In his Complaint Plaintiff challenges only the ALJ’s RFC determination. Stipulating that the 13 ALJ otherwise fairly and accurately summarized the medical and non-medical evidence of record, 14 Plaintiff asserts the ALJ did not state specific, clear and convincing reasons for rejecting his 15 subjective testimony regarding the severity of his pain, symptoms, and limitations. EFC No. 11 at 16 5. In particular, Plaintiff asserts the ALJ discounted his testimony solely based on a lack of objective 17 medical evidence to support them, and the ALJ merely recited the objective medical evidence and 18 Plaintiff’s reported daily activities without specifying how they contracted his testimony. Id. at 8- 19 15. The Commissioner contends the ALJ was not merely relying on a lack of objective evidence to 20 support Plaintiff’s testimony, but because those allegations were inconsistent with the evidence. 21 ECF No. 13 at 8. 22 Under Ninth Circuit precedent, ALJs are to assess the credibility of a claimant’s testimony 23 regarding the severity of their symptoms using a two-step process. Smolen v. Chater, 80 F.3d 1273, 24 1281 (9th Cir. 1996) (superseded, in part, on other grounds by 20 C.F.R. §§ 404.1529(c)(3), 25 416.929(c)(3)). First, the ALJ “must determine whether the claimant has presented objective 26 medical evidence of an underlying impairment which could reasonably be expected to produce the 27 pain or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). Once 1 claimant’s testimony “only by offering specific, clear and convincing reasons for doing so.” Id. 2 Under this standard, an ALJ cannot reject a claimant’s subjective testimony regarding their 3 symptoms solely based on lack of medical evidence corroborating every alleged symptom. Smartt 4 v. Kijakazi, 53 F.4th 489, 494-95 (9th Cir. 2022). ALJs are required to make specific findings to 5 support a conclusion that a claimant’s allegations of severity are not credible. Lingenfelter, 504 F.3d 6 at 1036. 7 A. The ALJ’s Discussion of the Objective Medical Evidence Does Not Provide Clear and Convincing Reasons for Discrediting Plaintiff’s Symptom Allegations. 8 9 In his Motion, Plaintiff argues the ALJ’s recitation of the objective medical evidence on AR 10 29 (after previously having described the evidence in more detail on AR 25-26) does not qualify as 11 clear and convincing reasons because the ALJ never indicated which pieces of evidence undermined 12 his testimony. ECF No. 11 at 11. Plaintiff further argues the ALJ failed to acknowledge the pain 13 associated with his lumbar spine had shown no improvement in response to treatment, or that he had 14 been diagnosed with hip joint arthritis, which had also shown no improvement following treatment. 15 Id. In response, the Commissioner asserts the ALJ’s statements were not mere recitations, but a list 16 of evidence in the record contradicting Plaintiff’s alleged symptoms. ECF No. 13 at 5-6. The 17 Commissioner notes that the ALJ indicated diagnostic test results that could not find a source for 18 Plaintiff’s alleged thoracic spine pain, as well as records indicating his cervical spine was responding 19 favorably to treatment. Id. at 7. Regarding the ALJ’s failure to address Plaintiff’s hip condition, the 20 Commissioner pointed out that Plaintiff never alleged a hip condition limited his physical activity in 21 his initial disability report or during the hearing before the ALJ. ECF No. 13 at 6-9. 22 The Court agrees with Plaintiff. The ALJ’s discussion of the objective medical evidence was 23 lacking. Notably, although conditions of the lumbar spine are central to Plaintiff’s claim of 24 disability,1 the ALJ did not discuss how any piece of evidence in the record contradicted or otherwise 25 discredited Plaintiff’s alleged lumbar symptoms. After stating “the alleged severity of total disability 26 is not supported by the record as a whole,” AR 28, the ALJ devoted the following page to citing 27 1 pieces of the objective medical evidence. AR 29. The ALJ first acknowledged Plaintiff has a history 2 of degenerative disc disease of the lumbar spine and then listed the treatment he had received for 3 this condition. Id. However, rather than discussing Plaintiff’s response to this treatment, which the 4 record indicates was not positive (AR 1553, 1792), the ALJ proceeded to describe Plaintiff’s cervical 5 spine condition, for which he underwent reconstructive surgery. AR 29. The ALJ did not discuss 6 Plaintiff’s response to this surgery in this section of her decision, though she noted at an earlier point 7 that this surgery “provided substantial relief of all his pre-existing symptomatology.” AR 25 (citing 8 AR 1792). To the extent the ALJ intended to incorporate this observation by reference in her later 9 discussion of the record, the Court notes the medical record cited refers only to relief from symptoms 10 of the cervical spine, not lumbar spine. AR 1792. In fact, the record states that Plaintiff was 11 experiencing worsening lower back pain at the time. Id. 12 The ALJ next proceeded to describe Plaintiff’s history of mild degenerative disc disease of 13 the thoracic spine. AR 29. The ALJ then noted that an MRI revealed no acute pathology that could 14 explain Plaintiff’s alleged thoracic spine pain. Id. But again, while this may provide a clear reason 15 for discrediting alleged thoracic spine pain, it cannot form a basis for discrediting Plaintiff’s alleged 16 lumbar spine pain. While the ALJ did go on to cite medical records that seem to be inconsistent 17 with Plaintiff’s alleged gastrointestinal symptoms, hip pain,2 and nerve damage in his extremities, 18 AR 29, the ALJ never circled back to address Plaintiff’s lumbar spine symptoms. 19 Though it is not the place of a reviewing court to second guess an ALJ’s weighing of the 20 evidence before them, an ALJ is nonetheless required to show that the relevant evidence was, in fact, 21 being weighed. See Turayl P.A. v. O’Malley, Case No. 3:23-cv-1589-WQH-DTF, 2024 WL 22 3103318, at *9 (S.D. Cal. June 24, 2024) (“An ALJ must consider all relevant evidence in the record 23 and not rely solely on only those portions that support his findings.”). Here, because Plaintiff’s 24 lumbar spine symptoms are at the core of his claim of disability, the ALJ did not sufficiently “show 25 her work” when she failed to mention a single piece of evidence discrediting Plaintiff’s testimony 26 2 As the Commissioner notes, Plaintiff’s alleged hip pain was not mentioned in his initial application for benefits 27 and was only mentioned tangentially during the hearing before the ALJ. Based on this, the Court agrees that these 1 regarding these symptoms. See Leslie R.M. v. O’Malley, Case No. 2:24-cv-01266-JDE, 2024 U.S. 2 Dist. LEXIS 157922, at *15 (C.D. Cal. Aug. 31, 2024) (finding reversible error where the ALJ 3 provided no reason for rejecting testimony regarding symptoms that were “material to the ultimate 4 disability determination”). 5 The Commissioner’s arguments to the contrary are unpersuasive. The Commissioner’s Brief 6 offers various reasons for discrediting Plaintiff’s testimony never directly stated by the ALJ herself. 7 For example, the Commissioner asserts the ALJ concluded at AR 24-26 that medical imaging of 8 Plaintiff’s spine did not support limitations beyond that of the RFC determination. ECF No. 13 at 9 6. But this portion of the ALJ’s decision does not mention any such conclusion at all. Instead, the 10 pages cited by the Commissioner simply list the results of various medical imaging without 11 commenting on them or drawing any conclusions. The Court does not consider findings or reasoning 12 not included in the record below. Bray v. Comm’r of SSA, 554 F.3d 1219, 1225 (9th Cir. 2009) 13 (“Long-standing principles of administrative law require us to review the ALJ's decision based on 14 the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that attempt to 15 intuit what the adjudicator may have been thinking.”). 16 The Commissioner later claims the ALJ “reasonably found that Plaintiff’s positive response 17 to prescribed treatment also contradicted his subjective allegations.” Id. at 8-9. Again, however, the 18 cited pages only show the ALJ mentioned certain treatments received by Plaintiff, interspersed with 19 descriptions of various diagnostic imaging, with no attempt made to connect this evidence to any 20 specific allegation by Plaintiff which she found to be inconsistent. AR 23-29. The Commissioner 21 then mistakenly highlights the portion of the record stating Plaintiff experienced “substantial … 22 [improvement] of all his pre-existing symptomatology” following his neck surgery. ECF No. 13 at 23 9 (citing AR 1792). As explained above, however, that observation was only in reference to 24 Plaintiff’s cervical spine symptoms. The same file notes that he experienced “no relief at all” from 25 his lower back pain following treatment. AR 1792. 26 The Commissioner also asserts, contrary to Plaintiff’s characterization, the ALJ (at AR 26- 27 29) “explained that she discounted Plaintiff’s allegations because Plaintiff’s allegations were 1 ECF No. 13 at 8. Citing Smartt, the Commissioner argues that this inconsistency may properly be 2 used to undercut Plaintiff’s subjective testimony. ECF No. 13 at 8. But nowhere in the portions 3 cited by the Commissioner did the ALJ state that any piece of evidence was “inconsistent” with 4 Plaintiff’s testimony; rather, she stated “the evidence does not fully support” Plaintiff’s testimony. 5 AR 29. The Commissioner’s citation to Smartt is therefore inapposite. That case involved a claimant 6 who stated at her hearing that she had not driven since 2015 and had consistently used a walker since 7 2016, despite the record indicating that she regularly drove and walked without the use of a mobility 8 aid. Smartt, 53 F.4th at 498. No such direct contradiction or inconsistency was noted by the ALJ 9 here. As Smartt itself acknowledged, an ALJ may not reject a claimant’s subjective symptom 10 testimony by “demanding positive objective medical evidence fully corroborating” that testimony. 11 Id. at 499 (quoting Burch, 400 F.3rd at 681. The Court struggles to see how the ALJ did not do 12 precisely that when her only express finding regarding Plaintiff’s testimony was that “the evidence 13 does not fully support” it. AR 29. 14 Finally, the Court cannot accept the Commissioner’s bare assertion that the ALJ considered 15 the prior medical opinions of the state disability agency and “reasonably concluded” that they did 16 not support Plaintiff’s allegations, ECF No. 13 at 10-11, when the ALJ at no point indicated how 17 these opinions undermined the allegations. While the Commissioner is correct that prior medical 18 opinions can be used to discount a claimant’s subjective allegations when they are inconsistent with 19 them, see Stobie v. Berryhill, 690 Fed.Appx. 910, 911 (9th Cir. 2017), the ALJ is still required to 20 specify how the opinions are inconsistent. The ALJ did not do so here. 21 B. The ALJ Did Not Sufficiently Explain How Plaintiff’s Daily Activities Contradicted His Symptom Allegations. 22 23 Plaintiff argues that the ALJ’s general discussion of Plaintiff’s reported daily activities does 24 not qualify as a clear and convincing reason for discrediting his symptom testimony. Under Ninth 25 Circuit precedent, a claimant’s daily activities can only be used to discredit their symptom testimony 26 if the activities are inconsistent with the claimant’s claimed limitations or if the activities involve 27 the use of skills or physical functions that are transferable to a work setting. Fair v. Bowen, 885 1 satisfy either of these uses. ECF No. 11 at 13. The Commissioner argues that Plaintiff misconstrues 2 the ALJ’s references to his daily activities. In the Commissioner’s telling, rather than giving a 3 perfunctory recitation of Plaintiff’s reported activities, the ALJ found that Plaintiff’s ability to 4 prepare meals, do dishes, do laundry, and vacuum contradicted his allegations that he could not 5 perform the limited range of work indicated in the ALJ’s RFC finding. ECF 13 at 10. Citing Burch, 6 the Commissioner argues that this finding of contradiction between alleged symptoms and daily 7 activities is a sufficient basis for discounting Plaintiff’s subjective testimony. Id. 8 The Court disagrees with the Commissioner’s characterization. While it is true that an ALJ 9 may consider any of a claimant’s daily activities that “may be seen as inconsistent with the presence 10 of a condition which would preclude all work activity,” Curry v. Sullivan, 925 F.2d 1127, 1130 (9th 11 Cir. 1990), the ALJ here at no point specified which of Plaintiff’s reported activities were 12 inconsistent with his subjective testimony. In fact, she never expressly stated they were inconsistent 13 with his reported symptoms at all; rather, she stated only that his daily activities were consistent with 14 objective medical evidence and the residual functional capacity to perform sedentary work. AR 29- 15 30. Such a statement does not amount to specific, clear, and convincing reasons for discounting 16 Plaintiff’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015) (“[A]n ALJ does 17 not provide specific, clear, and convincing reasons for rejecting a claimant’s testimony by simply 18 reciting the medical evidence in support of his or her residual functional capacity determination.”). 19 Though a finding that daily activities are consistent with a level of residual functional capacity does 20 imply that they cannot also be consistent with the severity of symptoms Plaintiff describes, an ALJ 21 cannot satisfy the clear and convincing standard through implication alone. See Ferguson v. 22 O’Malley, 95 F.4th 1194, 1203 (9th Cir. 2024) (an ALJ may not rely on a claimant’s daily activities 23 to discredit his symptom testimony when “the ALJ d[oes] not explain how, in his view, [Plaintiff]’s 24 testimony about those daily activities is inconsistent with his testimony about the severity and 25 frequency” of his symptoms). To the extent Plaintiff’s daily activities are inconsistent with the 26 severity of his alleged symptoms, the ALJ failed to state this clearly in the record. 27 1 VI. Order 2 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion for Reversal and Remand 3 (ECF No. 11) is GRANTED. 4 IT IS FURTHER ORDERED that Defendant’s Cross-Motion to Affirm (ECF No. 13) is 5 DENIED. 6 IT IS FURTHER ORDERED that the final decision of the Commissioner is REVERSED, 7 and the case REMANDED for further proceedings. 8 IT IS FURTHER ORDERED that judgement be entered in favor of Plaintiff and against the 9 Commissioner. 10 IT IS FURTHER ORDERED that the Clerk of Court close this case and enter judgment 11 accordingly. 12 Dated this 24th day of October, 2024. 13 14 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27