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

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12 TAREK F., Case No. 5:22-cv-894-GJS 13 Plaintiff, v. MEMORANDUM OPINION AND 14 ORDER KILOLO KIJAKAZI, Acting 15 Commissioner of Social Security,

16 Defendant. 17 18 I. PROCEDURAL HISTORY 19 Plaintiff Tarek F.1 filed a Complaint seeking review of the decision of the 20 Commissioner of Social Security denying his applications for a period of disability 21 and Disability Insurance Benefits (“DIB”) and Supplemental Security Income 22 (“SSI”) payments. The parties filed consents to proceed before a United States 23 Magistrate Judge (ECF Nos. 12, 13) and briefs (ECF Nos. 19 (“Pl.’s Br.”), and 22 24 (“Def.’s Br.”)), addressing the disputed issue in the case. The matter is now ready 25 for decision. For the reasons set forth below, the Court finds that this matter should 26

27 1 In the interest of privacy, this Order uses only the first name and last initial of 28 the non-governmental party in this case. 1 2 3 II. ADMINISTRATIVE DECISION UNDER REVIEW 4 Plaintiff filed an application for a period of disability and DIB on March 16, 5 2020, and an application for SSI on March 13, 2020, alleging disability commencing 6 on February 14, 2020. (ECF No. 16, Administrative Record (“AR”) 15; see also AR 7 187, 189.) Plaintiff’s applications were denied at the initial level of review and on 8 reconsideration. (AR 15, 77, 78, 97, 98.) A telephonic hearing was held before 9 Administrative Law Judge Jeannine Lesperance (“the ALJ”) on February 10, 2021. 10 (AR 15, 28-58.) 11 On May 13, 2021, the ALJ issued an unfavorable decision applying the five- 12 step sequential evaluation process for assessing disability. (AR 15-23); see 20 13 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1). At step one, the ALJ determined 14 that Plaintiff has not engaged in substantial gainful activity since the alleged onset 15 date. (AR 17.) At step two, the ALJ determined that Plaintiff has the severe 16 impairment of myotonic dystrophy type I.2 (AR 17.) At step three, the ALJ 17 determined that Plaintiff does not have an impairment or combination of impairments 18 that meets or medically equals the severity of one of the impairments listed in 19 Appendix 1 of the Regulations. (AR 18); see 20 C.F.R. pt. 404, subpt. P, app. 1. 20 The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform 21 sedentary work, as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a), except as 22 follows:

23 [H]e can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, or crawl; occasionally push, pull or operate . . . foot controls 24 bilaterally; and never climb ladders, ropes or scaffolds or work at 25 2 Plaintiff describes this as “a multisystem disorder that affects skeletal and 26 smooth muscle as well as the eye, heart, endocrine system, and central nervous 27 system.” (Pl.’s Br. 5 n.2 (citing https://www.ncbi.nlm.nih.gov/books/NBK1165).) It is characterized by progressive muscle wasting and weakness. 28 https://medlineplus.gov (last visited March 27, 2023). 1 unprotected heights. 2 (AR 18.) At step four, the ALJ determined that Plaintiff is not able to perform his 3 past relevant work in the composite job of translator and teacher aide I, and in the 4 jobs of retail sales clerk, department manager, and cashier/checker. (AR 21, 53-54.) 5 At step five, based on the testimony of the vocational expert (“VE”), the ALJ found 6 that Plaintiff could perform other jobs existing in significant numbers in the national 7 economy, including representative jobs such as a sealer, a telephone quote clerk, and 8 an electronic assembler. (AR 22-23.) Based on these findings, the ALJ found 9 Plaintiff not disabled through the date of the decision. (AR 23.) 10 The Appeals Council denied review of the ALJ’s decision on March 28, 2022. 11 (AR 1-5.) This action followed. 12 13 III. GOVERNING STANDARD 14 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 15 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 16 and (2) the Commissioner used correct legal standards. See le v. Comm’r Soc. Sec. 17 Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r Soc. Sec. Admin., 18 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence . . . is ‘more than a mere 19 scintilla.’ It means -- and only means -- ‘such relevant evidence as a reasonable 20 mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. 21 Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v. Comm’r of Soc. Sec., 740 22 F.3d 519, 522-23 (9th Cir. 2014) (internal quotation marks and citation omitted). 23 The Court will uphold the Commissioner’s decision when “the evidence is 24 susceptible to more than one rational interpretation.” See Molina v. Astrue, 674 F.3d 25 1104, 1110 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 26 404.1502(a). However, the Court may review only the reasons stated by the ALJ in 27 his decision “and may not affirm the ALJ on a ground upon which he did not rely.” 28 1 2 Commissioner’s decision if it is based on harmless error, which exists if the error is 3 “inconsequential to the ultimate nondisability determination, or if despite the legal 4 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin, 806 5 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted). 6 7 IV. DISCUSSION 8 Plaintiff raises the following issue challenging the ALJ’s findings and 9 determination of non-disability: the ALJ failed to properly evaluate Plaintiff’s 10 subjective symptom testimony. (Pl.’s Br. 5.) As discussed below, the Court agrees 11 with Plaintiff and finds that remand is appropriate. 12 13 A. LEGAL STANDARD 14 In evaluating a claimant’s subjective symptom testimony, an ALJ must engage 15 in a two-step analysis. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 16 2007); 20 C.F.R. § 404.1529(c). First, the ALJ must determine whether the claimant 17 has presented objective medical evidence of an underlying impairment which “could 18 reasonably be expected to produce the pain or other symptoms alleged.” 19 Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th 20 Cir. 1991) (en banc)). Second, if the claimant meets the first step and there is no 21 evidence of malingering, “the ALJ can reject the claimant’s testimony about the 22 severity of her symptoms only by offering specific, clear and convincing reasons for 23 doing so.” Id. at 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) 24 (internal quotation marks omitted)). At the same time, the “ALJ is not required to 25 believe every allegation of disabling pain, or else disability benefits would be 26 available for the asking, a result plainly contrary to the Social Security Act.” Smartt 27 v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (citation and internal quotation marks 28 1 2 3 B. ANALYSIS 4 In the present case, the ALJ discounted Plaintiff’s subjective complaints as 5 follows:

6 After careful consideration of the evidence, I find that [Plaintiff’s] medically determinable impairment could reasonably be expected to 7 cause at least some of the alleged symptoms; however, [his] statements concerning the intensity, persistence and limiting effects of these 8 symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. [¶] 9 [Plaintiff’s] statements about the alleged intensity, persistence, and limiting effects of symptoms are inconsistent with the medical evidence 10 of record. [He] alleged that muscle weakness with difficulty lifting, standing, walking, and sitting reduced his ability to perform work-related 11 activities. The alleged intensity, persistence, and limiting effects of these symptoms, however, are inconsistent with the evidence in the case record, 12 as further discussed below. Accordingly, the medical evidence of record does not support the level of symptomology that [Plaintiff] alleged and is 13 inconsistent with [his] statements concerning the alleged intensity, persistence, and limiting effects of symptoms. [¶] [Plaintiff’s statements 14 concerning the alleged intensity, persistence, and limiting effects of [his] symptoms on the ability to ambulate are inconsistent with the objective 15 medical evidence and the other evidence of record.

16 17 (AR 19.) The ALJ then summarized a number of Plaintiff’s medical records, 18 discussed her consideration of the persuasibility and consistency of the 19 administrative findings at initial review and on reconsideration, and noted her RFC 20 findings relating to Plaintiff’s limitations. (AR 20.) She concluded as follows:

21 In sum, the above residual functional capacity assessment in this finding is based on all of the relevant evidence in the record. The relevant 22 medical evidence and other evidence in the case record only partially support [Plaintiff’s] statements regarding the alleged intensity, 23 persistence, and limiting effects of symptoms.

24 (AR 20.) 25 Plaintiff generally contends that “[b]eyond a discussion of the objective 26 medical evidence, it does not appear that the ALJ actually offered any rationale to 27 reject [Plaintiff’s] testimony.” (Pl.’s Br. 9 (citations omitted).) He points out that the 28 1 2 supporting her decision thereby preventing the Court from determining whether the 3 decision was supported by substantial evidence. (Pl.’s Br. 9 (citations omitted).) He 4 further contends that the ALJ’s conclusory statement, without explanation, regarding 5 the lack of consistency between Plaintiff’s testimony and the “other evidence” also is 6 not legally sufficient as it is too vague to permit the Court to conclude the ALJ did 7 not arbitrarily discredit his testimony. (Pl.’s Br. 10 (citations omitted).) 8 Plaintiff argues that, in any event, the ALJ’s discussion of the objective 9 medical evidence supports Plaintiff’s testimony. (Pl.’s Br. 11.) For instance, as the 10 ALJ noted, Plaintiff has symptoms including moderate right foot drop; mild left foot 11 drop; “mild persistent non-fatigable ptosis [drooping upper eyelid], moderate 12 weakness with eye closure bilaterally, unable to bury eyelids, positive for air leak 13 with cheek puff”; sensory motor testing at 2/5 for right knee extension, 2/5 bilaterally 14 for ankle dorsiflexion, and 3/5 “extensor hallicus longus” on right; positive 15 percussion myotonia of the thenar eminences (located on the radial portion of the 16 hand at the base of the thumb); and progressive weakness in the hand and knee 17 extensors.3 (Pl.’s Br. 11 (citing AR 20, 302).) 18 Defendant responds that “the ALJ reasonably found that Plaintiff’s testimony 19 of greater limitations was not entirely consistent with the medical evidence and other 20 evidence,” and “identified several inconsistencies in the record that supported this 21 conclusion.” (Def’s. Br. 6.) For instance, Defendant notes the following: (1) the 22 ALJ found Plaintiff’s allegations regarding difficulties walking, balance problems, 23 24 3 Although Plaintiff notes that the ALJ did not articulate Plaintiff’s “sporadic 25 daily activities as reason to reject his testimony,” he nevertheless discusses why those activities fail to demonstrate that he is capable of maintaining substantial 26 gainful work activity. (Pl.’s Br. 12-13.) Because this was not a reason articulated by 27 the ALJ for discounting Plaintiff’s testimony, the Court declines to consider it. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to 28 review the reasons the ALJ asserts.”). 1 2 he had a normal gait and was active; (2) the objective clinical findings reflecting 3 Plaintiff’s strength as 2 out of 5 on right knee extension and ankle dorsiflexion on 4 one examination, was inconsistent with other records showing “only mildly reduced 5 strength,”4 and “no more than moderate or mild foot drop”; and (3) the medical 6 evidence of record was minimal. (Def’s. Br. 6 (citing AR 18, 19-20, 296, 298, 301- 7 02, 305).) Defendant suggests that despite the “meager evidence, the ALJ did not 8 entirely reject Plaintiff’s symptom allegations,” and limited him to sedentary work 9 with a number of limitations. (Def’s. Br. 7-8.) 10 The ALJ’s reasons for discounting Plaintiff’s testimony as described by 11 Defendant serve only to emphasize the fact that the ALJ relied solely on the medical 12 evidence of record to discount that testimony. In fact, the ALJ simply restated her 13 position -- that either Plaintiff’s testimony was inconsistent and unsupported by the 14 medical record, or that the medical record failed to support Plaintiff’s testimony -- no 15 fewer than six times, generally without tying his testimony to the record evidence. 16 Beyond that, the ALJ provided no other legally sufficient reason to discount 17 Plaintiff’s subjective symptom testimony. 18 Even assuming the ALJ’s reasons for discounting Plaintiff’s testimony based 19 on their inconsistency with the medical evidence of evidence were specific, clear, 20 and convincing, and supported by substantial evidence -- which the Court does not 21 decide -- the lack of supporting medical evidence cannot “form the sole basis for 22 discounting . . . testimony.” See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 23 2005); Bunnell, 947 F.2d at 345 (“[O]nce the claimant produces objective medical 24 evidence of an underlying impairment, an [ALJ] may not reject a claimant’s 25

26 4 The ALJ specifically acknowledged, however, that the later examiner “noted 27 that [Plaintiff’s] weakness had progressed since he was last seen.” (AR 20.) Indeed, as previously noted, myotonic dystrophy is characterized by progressive muscle 28 wasting and weakness. https://medlineplus.gov (last visited March 27, 2023). 1 2 corroborate the alleged severity” of his impairment). 3 Where, as here, the ALJ fails to state legally sufficient reasons for discounting 4 a claimant’s subjective complaints, a court ordinarily cannot properly affirm the 5 administrative decision. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884-85 (9th 6 Cir. 2006). The Court is unable to conclude that the ALJ’s errors in evaluating 7 Plaintiff’s subjective complaints were “harmless” or “inconsequential to the ultimate 8 non-disability determination.” Brown-Hunter, 806 F.3d at 492. 9 Remand is warranted on this issue. 10 11 V. REMAND FOR FURTHER PROCEEDINGS 12 As the circumstances of this case suggest that further administrative 13 proceedings could remedy the ALJ’s errors, remand is appropriate. See Dominguez 14 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes that 15 further administrative proceedings would serve no useful purpose, it may not remand 16 with a direction to provide benefits.”); Treichler v. Comm’r of Soc. Sec. Admin., 775 17 F.3d 1090, 1101, n.5 (9th Cir. 2014) (remand for further administrative proceedings 18 is the proper remedy “in all but the rarest cases”); Harman v. Apfel, 211 F.3d 1172, 19 1180-81 (9th Cir. 2000) (remand for further proceedings rather than for the 20 immediate payment of benefits is appropriate where there are “sufficient unanswered 21 questions in the record”). 22 23 VI. CONCLUSION 24 For all the foregoing reasons, IT IS ORDERED that: 25 (1) the decision of the Commissioner is REVERSED and this matter 26 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 27 administrative proceedings consistent with this Memorandum Opinion and 28 1 Order; and 2 (2) Judgment be entered in favor of Plaintiff. 3 4 IT IS SO ORDERED. 5 6 || DATED: March 27, 2023 Uy 8 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28