Case 5:21-cv-01388-GJS Document 20 Filed 01/03/23 Page 1 of 8 Page ID #:530

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

SHERYL T.,1

11 Case No. 5:21-cv-01388-GJS Plaintiff 12 v. 13 MEMORANDUM OPINION AND KILOLO KIJAKAJI, Acting ORDER 14 Commissioner of Social Security, 15 Defendant.

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17 I. PROCEDURAL HISTORY 18 Plaintiff Sheryl T. (“Plaintiff”) filed a complaint seeking review of the 19 decision of the Commissioner of Social Security denying her application for 20 Disability Insurance Benefits (“DIB”). The parties filed consents to proceed before 21 the undersigned United States Magistrate Judge [Dkts. 9 and 11] and briefs [Dkt. 15 22 (“Pl. Br.”), Dkt. 18 (“Def. Br.”), & Dkt. 19 (“Reply”)] addressing disputed issues in 23 the case. The matter is now ready for decision. For the reasons set forth below, the 24 Court finds that this matter should be remanded. 25

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27 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party in this case. 28 Case 5:21-cv-01388-GJS Document 20 Filed 01/03/23 Page 2 of 8 Page ID #:531

1 II. ADMINISTRATIVE DECISION UNDER REVIEW 2 Plaintiff filed an application for DIB on October 8, 2019, alleging disability 3 beginning January 1, 2015. [Dkt. 14, Administrative Record (“AR”) 13, 147-48.] 4 Plaintiff’s application was denied at the initial level of review and on 5 reconsideration. [AR 13, 76-79, 81-85.] A telephone hearing was held before 6 Administrative Law Judge Josephine Arno (“the ALJ”) on October 9, 2020. [AR 7 13, 26-58.] 8 On February 2, 2021, the ALJ issued an unfavorable decision applying the 9 five-step sequential evaluation process for assessing disability. [AR 13-22]; see 20 10 C.F.R. § 404.1520(b)-(g)(1). At step one, the ALJ determined that Plaintiff had not 11 engaged in substantial gainful activity during the relevant period, the alleged onset 12 date of January 1, 2015, through the date last insured of December 31, 2018. [AR 13 15.] At step two, the ALJ determined that Plaintiff has the following severe 14 impairments: obesity, lumbar spine arthritis, degenerative disc disease, right hip 15 osteoarthritis, and degenerative joint disease. [AR 15.] At step three, the ALJ 16 determined that Plaintiff does not have an impairment or combination of 17 impairments that meets or medically equals the severity of one of the impairments 18 listed in Appendix I of the Regulations. [AR 17.] See 20 C.F.R. Pt. 404, Subpt. P, 19 App. 1. The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to 20 perform light work, as defined in 20 C.F.R. § 404.1567(b), except that Plaintiff is 21 limited to occasional climbing of ladders, ropes and scaffolds, stooping, crouching 22 and crawling. [AR 17.] At step four, the ALJ determined that Plaintiff is capable of 23 performing her past relevant work in account, payroll through the date last insured. 24 [AR 21.] Based on these findings, the ALJ concluded that Plaintiff was not disabled 25 at any time from January 1, 2015, through December 31, 2018. [AR 22.] 26 The Appeals Council denied review of the ALJ’s decision on August 2, 2021. 27 [AR 1-3.] This action followed. 28 Plaintiff raises the following issues challenging the ALJ’s findings and 2 Case 5:21-cv-01388-GJS Document 20 Filed 01/03/23 Page 3 of 8 Page ID #:532

1 determination of non-disability: 2 1. The ALJ failed to properly evaluate the medical evidence. [Pl. Br. 3 at 7-11.] 4 2. The ALJ failed to properly consider Plaintiff’s subjective 5 complaints. [Pl. Br. at 11-15.] 6 The Commissioner asserts that the ALJ’s decision should be affirmed. [Def. 7 Br. at 1-8.] 8 9 III. GOVERNING STANDARD 10 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 11 determine if: (1) the Commissioner’s findings are supported by substantial 12 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. 13 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r 14 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence … is 15 ‘more than a mere scintilla’ … [i]t means – and only means – ‘such relevant 16 evidence as a reasonable mind might accept as adequate to support a conclusion.’” 17 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v. 18 Comm’r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 2014) (“[s]ubstantial evidence is 19 more than a mere scintilla but less than a preponderance”) (internal quotation marks 20 and citation omitted). 21 The Court will uphold the Commissioner’s decision when “‘the evidence is 22 susceptible to more than one rational interpretation.’” Burch v. Barnhart, 400 F.3d 23 676, 681 (9th Cir. 2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 24 1989)). However, the Court may review only the reasons stated by the ALJ in the 25 decision “and may not affirm the ALJ on a ground upon which he did not rely.” 26 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the 27 Commissioner’s decision if it is based on harmless error, which exists if the error is 28 “inconsequential to the ultimate nondisability determination, or that, despite the 3 Case 5:21-cv-01388-GJS Document 20 Filed 01/03/23 Page 4 of 8 Page ID #:533

1 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin, 2 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted). 3

IV. DISCUSSION

4 Plaintiff contends the ALJ failed to properly consider her subjective symptom 5 testimony concerning her physical impairments. [Pl. Br. at 7-11.] As discussed 6 below, the Court agrees with Plaintiff and finds that remand is appropriate. 7 In evaluating a claimant’s subjective symptom testimony, an ALJ must 8 engage in a two-step analysis. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 9 (9th Cir. 2007); 20 C.F.R. § 404.1529(c). First, the ALJ must determine whether the 10 claimant has presented objective medical evidence of an underlying impairment 11 which “could reasonably be expected to produce the pain or other symptoms 12 alleged.” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 13 344 (9th Cir. 1991) (en banc)). Second, if the claimant meets the first step and there 14 is no evidence of malingering, “‘the ALJ can reject the claimant’s testimony about 15 the severity of her symptoms only by offering specific, clear and convincing reasons 16 for doing so.’” Lingenfelter, 504 F.3d at 1036; (quoting Smolen v. Chater, 80 F.3d 17 1273, 1281 (9th Cir. 1996)). At the same time, the “ALJ is not required to believe 18 every allegation of disabling pain, or else disability benefits would be available for 19 the asking, a result plainly contrary to the Social Security Act.” Smartt v. Kijakazi, 20 53 F.4th 489, 499 (9th Cir. 2022) (citation and internal quotation marks omitted). 21 In the present case, the ALJ discounted Plaintiff’s subjective complaints 22 based on perceived inconsistencies between Plaintiff’s testimony and the objective 23 medical record. [AR 18-21.] The ALJ summarized the medical evidence as to each 24 of Plaintiff’s severe impairments and then repeatedly asserted that Plaintiff’s 25 subjective complaints were unsupported by the objective medical evidence during 26 the relevant period, January 1, 2015, through December 31, 2018. [AR 18 (“the 27 claimant’s statements concerning the intensity, persistence and limiting effects of 28 4 Case 5:21-cv-01388-GJS Document 20 Filed 01/03/23 Page 5 of 8 Page ID #:534

1 these symptoms are not entirely consistent with the medical evidence and other 2 evidence in the record … [t]he positive objective clinical and diagnostic findings 3 since the application date detailed below do not support more restrictive functional 4 limitations than those assessed herein”), 20 (“findings from physical examinations 5 were mild in light of the claimant’s subjective complaints … [t]he claimants 6 statements concerning the alleged intensity, persistence, and limiting effects of the 7 claimant’s symptoms on the ability to ambulate are inconsistent with the objective 8 medical evidence and the other evidence of record”), 21 (“[t]he claimant’s 9 subjective complaints are inconsistent with the objective medical evidence and that 10 evidence does not support the alleged severity of symptoms”).] While the lack of 11 supporting medical evidence can be a factor in evaluating a claimant’s subjective 12 complaints, it cannot “form the sole basis for discounting pain testimony.” See 13 Burch, 400 F.3d at 681; Bunnell, 947 F.2d at 345 (“[O]nce the claimant produces 14 objective medical evidence of an underlying impairment, an [ALJ] may not reject a 15 claimant’s subjective complaints based solely on a lack of objective medical 16 evidence to fully corroborate the alleged severity of pain.”). 17 The ALJ also asserted that Plaintiff “received essentially routine and 18 conservative care for her lumbar spine complaints, primarily in the form of pain 19 medication and physical therapy.” [AR 20.] In some circumstances, the 20 conservative nature of a claimant’s treatment properly may factor into the evaluation 21 of a claimant’s subjective complaints. See, e.g., Parra v. Astrue, 481 F.3d 742, 751 22 (9th Cir. 2007) (finding that treatment consisting of over-the-counter pain 23 medication was sufficient to discount the claimant’s testimony regarding severity of 24 an impairment). The record in this case, however, shows that Plaintiff’s treatment 25 included prescriptions for narcotic pain medication (Tramadol and Tylenol with 26 codeine). [AR 209, 220, 223.] Such treatment cannot properly be characterized as 27 “conservative.” See, e.g., Luanne D. D. v. Saul, No. CV 19-08662 PVC, 2020 WL 28 5350434, at *7 (C.D. Cal. Sept. 4, 2020) (“the consistent use of narcotic medications 5 Case 5:21-cv-01388-GJS Document 20 Filed 01/03/23 Page 6 of 8 Page ID #:535

1 cannot fairly be described as ‘conservative’ treatment”); Aguilar v. Colvin, 2014 2 WL 3557308, at *8 (C.D. Cal. July 18, 2014) (“It would be difficult to fault Plaintiff 3 for overly conservative treatment when he has been prescribed strong narcotic pain 4 medications”); Shepard v. Colvin, 2015 WL 9490094, at *7 (E.D. Cal. Dec. 30, 5 2015) (where claimant’s back pain was treated with prescription pain medications 6 including tramadol, oxycodone and other medications, the record did not support 7 finding that treatment was “conservative”). And although Plaintiff periodically 8 experienced some symptom relief from physical therapy and medication, Plaintiff 9 continued to report low back pain with sciatica. [AR 19, 220, 223-24, 381, 398]; 10 see, e.g., Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (“[I]t is error to 11 reject a claimant’s testimony merely because symptoms wax and wane in the course 12 of treatment. Cycles of improvement and debilitating symptoms are a common 13 occurrence, and in such circumstances it is error for an ALJ to pick out a few 14 isolated instances of improvement ... and to treat them as a basis for concluding a 15 claimant is capable of working.”). Moreover, Plaintiff’s treatment eventually 16 included cervical spine surgery in 2019, and lumbar spine surgery in 2020, 17 procedures which can hardly be described as conservative. [AR 260, 376.] See, 18 e.g., Sanchez v. Colvin, 2013 WL 1319667, at *4 (C.D. Cal. Mar. 29, 2013) 19 (“surgery is not conservative treatment”); Michel v. Berryhill, No. EDCV 17-01793- 20 AFM, 2018 WL 3031450, at *4 (C.D. Cal. June 15, 2018) (same). While Plaintiff’s 21 surgeries took place after her DLI of December 31, 2018, Plaintiff’s doctors opined 22 that her neck and back conditions were likely to have been present in 2018 or 23 earlier. [AR 310, 311.] 24 Although not expressly relied on by the ALJ, Defendant asserts that 25 Plaintiff’s pain testimony was properly rejected because she stopped working when 26 her employer went out of business, a reason that was unrelated to her alleged 27 impairments. [Def. Br. at 4-5.] However, the ALJ’s decision may not be affirmed 28 “on a ground upon which [she] did not rely.” Orn, 495 F.3d at 630; Connett v. 6 Case 5:21-cv-01388-GJS Document 20 Filed 01/03/23 Page 7 of 8 Page ID #:536

1 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the 2 reasons the ALJ asserts.”). Moreover, the record does not support the inference that 3 Plaintiff sought disability benefits simply because she was laid off from work. 4 Plaintiff stopped working on September 1, 2013, but did not allege disability until 5 January 1, 2015, more than a year later. [AR 13, 31, 147, 159.] Plaintiff testified 6 that she had looked for a new job until her pain and symptoms began to interfere 7 with her daily life. [AR 31-32.] Thus, Plaintiff’s reason for stopping work was not 8 a sufficient basis for rejecting her subjective symptom testimony. See, e.g., Thomas 9 v. Colvin, No. CV 15-01451-RAO, 2016 WL 1733418, at *5 (C.D. Cal. Apr. 29, 10 2016) (finding “[t]he gap between Plaintiff’s last date of employment and her 11 [alleged onset date] lessens the impact of her admission that she originally stopped 12 working for non-disability reasons”); Shehan v. Astrue, No. EDCV 08-01302 13 (MLG), 2009 WL 2524573, at *3 (C.D. Cal. Aug. 17, 2009) (finding plaintiff’s non- 14 disability “reasons for leaving her earlier jobs was not a proper basis for rejecting 15 her credibility[,]” in part, because those “jobs ended long before her alleged onset 16 date”); cf. Bruton v. Massanari, 268 F.3d 824, 826 (9th Cir. 2001) (finding pain 17 testimony properly rejected, in part, because the claimant admitted that he was laid 18 off and did not leave his job due to injury, yet he alleged disability beginning on the 19 day he stopped working). 20 Where, as here, the ALJ fails to state legally sufficient reasons for discounting 21 a claimant’s subjective complaints, a court ordinarily cannot properly affirm the 22 administrative decision. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884-85 (9th 23 Cir. 2006). The Court is unable to conclude that the ALJ’s errors in evaluating 24 Plaintiff’s subjective complaints were “harmless” or “inconsequential to the ultimate 25 non-disability determination.” Brown-Hunter, 806 F.3d at 492. 26 As the circumstances of this case suggest that further administrative 27 proceedings could remedy the ALJ’s errors, remand is appropriate. See Dominguez 28 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes 7 Case 5:21-cv-01388-GJS Document 20 Filed 01/03/23 Page 8o0f8 Page ID #:537

1 || that further administrative proceedings would serve no useful purpose, it may not 2 || remand with a direction to provide benefits.”); Treichler v. Comm’r of Soc. Sec. 3 || Admin., 775 F.3d 1090, 1101, n.5 (9th Cir. 2014) (remand for further administrative 4 || proceedings is the proper remedy “in all but the rarest cases”); Harman v. Apfel, 211 5 || F.3d 1172, 1180-81 (9th Cir. 2000) (remand for further proceedings rather than for 6 || the immediate payment of benefits is appropriate where there are “sufficient 7 || unanswered questions in the record”’). 8 Having found that remand is warranted, the Court declines to address 9 || Plaintiff's remaining issue. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) 10 || (‘Because we remand the case to the ALJ for the reasons stated, we decline to reach 11 || [plaintiff's] alternative ground for remand.”). 12 13 Vv. CONCLUSION 14 For all of the foregoing reasons, IT IS ORDERED that: 15 (1) the decision of the Commissioner is REVERSED and this matter is 16 || REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 17 || administrative proceedings consistent with this Memorandum Opinion and Order; 18 || and 19 (2) Judgment be entered in favor of Plaintiff. 20 21 IT IS ORDERED. 22 23 || DATED: January 03, 2023 : Uy 25 26 UNITED STATES MAGISTRATE JUDGE 27 28