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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 MELISSA M., 1 Case No. 5:23-cv-00119-MAA

12 Plaintiff, MEMORANDUM DECISION AND

13 ORDER REVERSING DECISION OF v. 14 THE COMMISSIONER AND KILOLO KIJAZAKI, Acting REMANDING FOR FURTHER 15 Commissioner of Social Security, ADMINISTRATIVE PROCEEDINGS

16 Defendant. 17 18

19 I. INTRODUCTION 20 On January 24, 2023, Plaintiff Melissa M. (“Plaintiff”) filed a Complaint 21 seeking review of Defendant Commissioner of Social Security’s (“Commissioner” 22 or “Defendant”) final decision denying her application for supplemental security 23 income under Title XVI of the Social Security Act. (ECF No. 1.) Pursuant to 28 24 U.S.C. § 636(c), the parties consented to the jurisdiction of a United States 25 Magistrate Judge. (ECF Nos. 8, 9.) On March 27, 2023, Defendant filed an 26 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil 27 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United 28 States. 1 Answer, which was limited to the filing of the Certified Administrative Record 2 (“AR”). (ECF No. 11.) On April 26, 2023, Plaintiff filed an Opening Brief. (ECF 3 No. 12.) On July 10, 2023, Defendant filed a brief titled “Motion for Summary 4 Judgment and Memorandum in Support of Defendant’s Answer.” (ECF No. 17.) 5 This matter is fully briefed and ready for decision. 6 The Court deems the matter appropriate for resolution without oral argument. 7 See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. For the reasons discussed below, the 8 Court reverses the decision of the Commissioner and remands the matter for further 9 administrative proceedings. 10 11 II. SUMMARY OF ADMINISTRATIVE PROCEEDINGS 12 On March 6, 2018, Plaintiff filed an application for supplemental security 13 income, alleging disability beginning January 18, 2018. (AR 324–29.) Plaintiff 14 alleged that she was disabled due to neck and back problems, diabetes II, heart 15 problems, left arm problems, asthma, and arthritis. (AR 120.) The Commissioner 16 denied the application on April 26, 2018 (AR 170–73), and again upon 17 reconsideration on August 21, 2018 (AR 177–79). On August 28, 2018, Plaintiff 18 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 180–82.) 19 After a May 27, 2020 telephonic hearing (AR 53–82), ALJ John Cusker issued a 20 decision on October 2, 2020, finding that Plaintiff is not disabled (AR 148–63). 21 On October 22, 2020, Plaintiff filed a request for review (AR 265–66), which 22 the Appeals Council granted on January 21, 2021 (AR 164–67). On June 9, 2021, a 23 telephonic hearing on remand was held before ALJ Kelly Walls. (AR 53–82.) 24 Plaintiff—who was not represented by counsel—and a vocational expert testified. 25 (Id.) 26 In a decision dated September 1, 2021, ALJ Walls denied Plaintiff’s 27 application after making the following findings under the Commissioner’s five-step 28 evaluation. (AR 12–35.) At step one, the ALJ found that Plaintiff has not engaged 1 in substantial gainful activity since January 18, 2018. (AR 18, ¶ 1.) At step two, 2 the ALJ found that Plaintiff has the following severe impairments: cervical spine 3 and lumbar spine degenerative disc disease, chronic obstructive pulmonary disease, 4 coronary artery disease with stenting procedure, and degenerative joint disease of 5 the right elbow and shoulder. (Id. ¶ 2.) At step three, the ALJ found that Plaintiff 6 does not have an impairment or combination of impairments that meets or 7 medically equals the severity of one of the agency’s listed impairments. (AR 19, 8 ¶ 3.) Next, the ALJ found that Plaintiff has the following Residual Functional 9 Capacity (“RFC”): [Plaintiff] has the residual functional capacity (RFC) to 10 perform light work as defined in 20 CFR 416.967(b) 11 except she can only occasionally climb ramps and stairs; never climb ladders, ropes or scaffolds; occasionally 12 balance, stoop, kneel, crouch and crawl; avoid 13 concentrated exposure to pulmonary irritants, including chemicals, odors, dusts, fumes, and gases; avoid 14 concentrated exposure to hazards, including dangerous 15 moving machinery and unprotected heights. 16 (AR 21, ¶ 4.) At step four, the ALJ found that Plaintiff has no past relevant work. 17 (AR 24, ¶ 5.) The ALJ classified Plaintiff as a younger individual on the alleged 18 onset date who subsequently changed age category to closely approaching advanced 19 age. (Id. ¶ 6.) The ALJ categorized Plaintiff as possessing a limited education. (Id. 20 ¶ 7.) The ALJ concluded that “[t]ransferability of job skill is not an issue because 21 the [Plaintiff] does not have past relevant work.” (Id. ¶ 8.) At step five, the ALJ 22 noted that the vocational expert testified that an individual of Plaintiff’s age, 23 education, work experience, and residual functional capacity could perform light 24 and unskilled occupations such as: cashier II (DOT 211.462-010), with 560,000 25 jobs; router (DOT 222.587-038), with 35,000 jobs; and marker (DOT 209.587-034), 26 with 129,000 jobs. (AR 25, ¶ 9.) The ALJ concluded that, “[c]onsidering 27 [Plaintiff’s] age, education, work experience, and residual functional capacity, there 28 are jobs that exist in significant numbers in the national economy that [Plaintiff] can 1 perform[.]” (AR 24, ¶ 9.) Accordingly, the ALJ concluded that Plaintiff was not 2 disabled, as defined by the Social Security Act, from January 18, 2018. (AR 25, 3 ¶ 10.) 4 On August 29, 2022, the Appeals Council denied Plaintiff’s request for 5 review. (AR 1–5.) Plaintiff now seeks judicial review of ALJ Walls’s September 6 1, 2021 decision, which stands as the final decision of the Commissioner. See 42 7 U.S.C. § 405(g). 8 9 III. STANDARD OF REVIEW 10 Pursuant to 42 U.S.C. § 405(g), the Court reviews the Commissioner’s final 11 decision to determine whether the Commissioner’s “decision to deny benefits . . . ‘is 12 not supported by substantial evidence or is based on legal error.’” Treichler v. 13 Comm’r of SSA, 775 F.3d 1090, 1098 (9th Cir. 2014) (quoting Andrews v. Shalala, 14 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘Substantial evidence’ means more than a 15 mere scintilla, but less than a preponderance; it is such relevant evidence as a 16 reasonable person might accept as adequate to support a conclusion.” Lingenfelter v. 17 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (quoting Robbins v. SSA, 466 F.3d 880, 18 882 (9th Cir. 2006)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971). The 19 Court “must consider the record as a whole, weighing both the evidence that 20 supports and the evidence that detracts from the Commissioner’s conclusion, and 21 may not affirm simply by isolating a specific quantum of supporting evidence.” 22 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter, 504 23 F.3d at 1035). “‘Where evidence is susceptible to more than one rational 24 interpretation,’ the ALJ’s decision should be upheld.” Orn v. Astrue, 495 F.3d 625, 25 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). 26 “If the evidence can support either affirming or reversing the ALJ’s conclusion, [a 27 court] may not substitute [its] judgment for that of the ALJ.” Robbins, 466 F.3d at 28 882. 1 IV. DISCUSSION 2 A. Disputed Issue 3 The single disputed issue is whether the ALJ articulated clear and convincing 4 reasons, supported by substantial evidence, for rejecting Plaintiff’s pain and 5 limitation testimony. (ECF No. 12, at 4.)2 Plaintiff argues that the ALJ did not 6 provide sufficient articulated rationale for rejecting her subjective symptom 7 testimony. (See generally id.) Defendant asserts that substantial evidence supports 8 the ALJ’s analysis of Plaintiff’s subjective statements. (See generally ECF No. 17.) 9 10 B. Applicable Law 11 An ALJ must make two findings in assessing a claimant’s pain or symptom 12 testimony. Treichler, 775 F.3d at 1102; Social Security Ruling 16-3p, 2016 SSR 13 LEXIS 4, at *3–4 (Mar. 16, 2016). “First, the ALJ must determine whether the 14 claimant has presented objective medical evidence of an underlying impairment 15 which could reasonably be expected to produce the pain or other symptoms 16 alleged.” Treichler, 775 F.3d at 1102 (quoting Lingenfelter, 504 F.3d at 1036). 17 “Second, if the claimant has produced that evidence, and the ALJ has not 18 determined that the claimant is malingering, the ALJ must provide specific, clear 19 and convincing reasons for rejecting the claimant’s testimony regarding the severity 20 of the claimant’s symptoms.” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1281 21 (9th Cir. 1996)). “And such reasons must be supported by substantial evidence 22 from the administrative record.” Marsh v. Colvin, 792 F.3d 1170, 1174 n.2 (9th 23 Cir. 2015). 24 “A finding that a claimant’s testimony is not credible ‘must be sufficiently 25 specific to allow a reviewing court to conclude the adjudicator rejected the 26 claimant’s testimony on permissible grounds and did not arbitrarily discredit a 27 2 Except for citations to the Administrative Record, pinpoint citations to docketed 28 documents refer to the page numbers in the CM/ECF-generated headers. 1 claimant’s testimony regarding pain.’” Brown-Hunter v. Colvin, 806 F.3d 487, 493 2 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) 3 (en banc)). “General findings are insufficient; rather, the ALJ must identify what 4 testimony is not credible and what evidence undermines the claimant’s complaints.” 5 Id. (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1988)). 6 7 C. Plaintiff’s Statements 8 During the hearing, Plaintiff testified about her problems and limitations as 9 follows: 10 She is unable to work because she has difficulty lifting, carrying, walking, 11 and sitting. (AR 43.) This difficulty is caused by “neck and low back degenerating 12 discs”—one is a herniated disc and one is a bulging disc. (Id.) In response to the 13 question of what this feels like, Plaintiff stated “[t]ingling and sometimes numbness 14 and then [her] sciatic is in distress.” (Id.) In response to the question of whether 15 she has any difficulty driving, she responded “[n]o, I just don’t drive very much . . . 16 [b]ecause if I am out too long on my feet and all that stuff it starts hurting my 17 back.” (AR 42.) 18 Her diabetes medications have changed, and her medications will change 19 again once she gets blood work back. (AR 44.) She has a stent in her right arm 20 from having a heart attack and has medication for that too. (Id.) She had some pain 21 with the cardiac issues, but the doctor took her off a couple of medications that they 22 had her on too long. (AR 45.) She sometimes gets sleepy from her medication. 23 (AR 44.) 24 In a typical day, she gets up and has to move around to get her body going. 25 (AR 46.) She makes coffee and breakfast and does whatever activities she needs to 26 do for the day like shopping or going to the doctor. (AR 46–47.) She does not have 27 difficulty getting dressed or taking a shower; that difficulty was just related to the 28 heart attack, because afterwards she was not standing on her feet enough. (AR 47.) 1 She has difficulty performing chores around the apartment because she 2 cannot lift and carry too long; she has to sit down. (AR 47.) She cannot “go 20 3 minutes or 25/30 minutes” and then has to sit down because her lower back starts 4 screaming at her like somebody kicked her. (Id.) The muscles in her legs “start 5 jumping.” (Id.) She does not have to use a cane or anything else to help her walk, 6 if she can sit and relax a minute, lean against a basket, or get an electric cart that 7 drives around. (AR 45.) If an electric cart is not available, she can walk up and 8 down the aisles of a store by leaning on the cart. (AR 48.) The heaviest item she 9 can lift by herself at the grocery store is a twelve-pack of sodas, but someone will 10 help her with it at home. (Id.) 11 She is not involved in any outside activities, like church or social groups. 12 (AR 48.) She does not have any hobbies or do anything for fun. (Id.) She spends 13 most of her day watching the gulls or the quails run and the birds fly, and sitting at 14 the smoking table and talking to some of her neighbors. (Id.) 15 16 D. Analysis 17 At the first step of the two-step evaluation, the ALJ found that Plaintiff’s 18 “medically determinable impairments could reasonably be expected to cause the 19 alleged symptoms[.]” (AR 22.) At the second step, however, the ALJ found that 20 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of 21 these symptoms are not entirely consistent with the medical evidence and other 22 evidence in the record for the reasons explained in this decision.” (Id.) Defendant 23 identifies three reasons that the ALJ rejected Plaintiff’s symptom testimony: 24 (1) effective treatment; (2) inconsistency with daily activities; and (3) lack of 25 corroboration with objective medical evidence. (See generally ECF No. 17.) 26 As discussed below, the Court concludes that these reasons are not legally sufficient 27 to discount Plaintiff’s subjective symptom testimony. 28 /// 1 1. Effective Treatment 2 Defendant argues that “[t]he ALJ . . . compared Plaintiff’s allegations to 3 other evidence, including the nature and effectiveness of Plaintiff’s treatment.” 4 (ECF No. 17, at 7 (citations omitted).) Specifically, the ALJ found that “ [i]n July 5 2018, [Plaintiff] reported benefiting from Oxycodone without any side effects. She 6 also reported a 50% improvement in her neck and upper extremity symptoms 7 following bilateral transforaminal injections at C6-C7, and she reported a 65% 8 improvement in back pain following bilateral L4-L5 injections in December 2018.” 9 (AR 23.) Plaintiff counters that “the ALJ merely included these notations along 10 with the summary of all medical evidence, without any reasoning or analysis.” 11 (ECF No. 12, at 11.) 12 The Court may review only those reasons that the ALJ specifically cited as 13 grounds to reject Plaintiff’s subjective symptom testimony. See Connett v. 14 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the 15 reasons the ALJ asserts.”); Garrison, 759 F.3d at 1010 (“We review only the 16 reasons provided by the ALJ in the disability determination and may not affirm the 17 ALJ on a ground upon which he did not rely.” It is well-settled that a reviewing 18 court may not construe an ALJ’s general findings from the medical record as 19 reasons to reject a claimant’s subjective symptom testimony if the ALJ does not 20 explicitly tie such findings to the testimony. See Burrell v. Colvin, 775 F.3d 1133, 21 1139 (9th Cir. 2014) (“Although the ALJ made findings . . . concerning Claimant’s 22 treatment for headaches, he never stated that he rested his adverse credibility 23 determination on those findings.”). Here, the ALJ included Plaintiff’s treatment 24 within a summary of medical evidence, but “never stated that [s]he rested [her] 25 adverse credibility determination on those findings.” Id. This was not a clear and 26 convincing reason to reject Plaintiff’s subjective symptom testimony. 27 /// 28 /// 1 2. Activities of Daily Living 2 Defendant argues that “the ALJ properly considered Plaintiff’s daily 3 activities.” (ECF No. 17, at 7.) Specifically, the ALJ stated that Plaintiff’s 4 “reported activities including shopping, driving and independence in self-care and 5 cooking, are more consistent with a range of light exertion than with any debilitating 6 condition(s).” (AR 22.) Plaintiff contends that the ALJ’s reliance on her reported 7 activities is neither clear nor convincing and lacks the support of substantial 8 evidence. (ECF No. 12, at 10.) 9 “Inconsistencies between a claimant’s testimony and the claimant’s reported 10 activities provide a valid reason for an adverse credibility determination.” Burrell, 11 775 F.3d at 1137–38. Here, however, “the ALJ did not elaborate on which daily 12 activities conflicted with which part of [Plaintiff’s] testimony.” Id. at 1138. An 13 ALJ may reject a claimant’s testimony about the severity of their symptoms only by 14 providing specific, clear, and convincing reasons for doing so, which “requires the 15 ALJ to ‘specifically identify the testimony [from a claimant] she or he finds not to 16 be credible and . . . explain what evidence undermines that testimony.’” Lambert v. 17 Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (alterations in original) (quoting 18 Treichler, 775 F.3d at 1102); Brown-Hunter, 806 F.3d at 494 (finding legal error 19 where the ALJ failed to identify the testimony she found not credible and did not 20 link that testimony to the particular parts of the record supporting her non- 21 credibility determination); Treichler, 775 F.3d at 1103 (“The ALJ must identify the 22 testimony that was not credible, and specify ‘what evidence undermines the 23 claimant’s complaints.’” (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 24 1988))). 25 Moreover, the daily activities the ALJ identified arguably were not 26 inconsistent with Plaintiff’s testimony about her limitations. See Vertigan v. Halter, 27 260 F.3d 1044, 1050 (9th Cir. 2001) (“[T]he mere fact that a plaintiff has carried on 28 certain daily activities, such as grocery shopping, driving a car, or limited walking 1 for exercise, does not in any way detract from her credibility as to her overall 2 disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.” 3 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); see also Reddick v. 4 Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Only if the level of activity were 5 inconsistent with the Claimant’s claimed limitations would these activities have any 6 bearing on Claimant’s credibility.”). 7 This was not a clear and convincing reason to reject Plaintiff’s subjective 8 symptom testimony. 9 3. Objective Medical Evidence 10 Defendant argues that “[i]n concluding that Plaintiff could sustain light work 11 with significant postural and environmental limitations, the ALJ properly found that 12 Plaintiff’ alleged symptoms were not entirely consistent with the medical and other 13 evidence.” (ECF No. 17, at 4.) Specifically, the ALJ found that “the claimant’s 14 statements concerning the intensity, persistence and limiting effects of these 15 symptoms are not entirely consistent with the medical evidence and other evidence 16 in the record for the reasons explained in this decision. The undersigned notes there 17 is insufficient support for any restrictions or limitations in excess of those outlined 18 in the RFC.” (AR 22.) 19 An ALJ may consider whether a claimant’s subjective symptoms are 20 supported by objective medical evidence, and an ALJ may reject a claimant’s 21 subjective testimony if it is inconsistent with the objective medical evidence. See 22 Carmickle v. Comm’r, SSA, 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction 23 with the medical record is a sufficient basis for rejecting the claimant’s subjective 24 testimony.”). Although an ALJ may consider lack of medical evidence when 25 analyzing Plaintiff’s subjective allegations, “lack of medical evidence cannot form 26 the sole basis for discounting pain testimony.” Burch, 400 F.3d at 681. 27 Even assuming the record supports the ALJ’s reasoning regarding the lack of 28 support from objective medical evidence, the other reasons the ALJ identified to 1 discount Plaintiff’s subjective symptom testimony are insufficient. Standing alone, 2 lack of objective medical evidence is a legally insufficient reason to support the 3 assignment of little weight to a claimant’s subjective symptom allegations. See 4 Robbins, 466 F.3d at 883 (holding that where ALJ’s other reason to reject the 5 claimant’s testimony was legally insufficient, the sole remaining reason premised 6 on the absence of objective medical support could not justify an adverse credibility 7 determination); see also Bunnell, 947 F.2d at 345 (“[A]n adjudicator may not reject 8 a claimant’s subjective complaints based solely on a lack of objective medical 9 evidence to fully corroborate the alleged severity of pain.”). 10 In sum, the ALJ’s decision does not provide specific, clear, and convincing 11 reasons for rejecting Plaintiff’s subjective symptom allegations. 12 13 E. Remand for Further Proceedings 14 The decision whether to remand for further proceedings or order an 15 immediate award of benefits is within the district court’s discretion. See Harman v. 16 Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Where no useful purpose would be 17 served by further administrative proceedings, or where the record has been fully 18 developed, it is appropriate to exercise this discretion to direct an immediate award 19 of benefits. See id. at 1179 (“[T]he decision of whether to remand for further 20 proceedings turns upon the likely utility of such proceedings.”). However, where, 21 as here, the circumstances of the case suggest that further administrative review 22 could remedy the Commissioner’s errors, remand is appropriate. See McLeod v. 23 Astrue, 640 F.3d 881, 888 (9th Cir. 2011). Specifically, remand is warranted here 24 for reconsideration of Plaintiff’s symptom statements because the ALJ’s failure to 25 provide any clear explanation for discounting such statements in the decision 26 prevents this Court from meaningfully determining whether the decision is 27 supported by substantial evidence. See Treichler, 775 F.3d at 1103 (“Because ‘the 28 agency’s path’ cannot ‘reasonably be discerned,’ we must reverse the district 1 court’s decision to the extent it affirmed the ALJ’s credibility determination.” 2 (citation omitted)). 3 4 V. ORDER 5 The Court ORDERS that judgment be entered reversing the decision of the 6 Commissioner and remanding this mater for further administrative proceedings. 7 IT IS SO ORDERED. 8 9 DATED: August 21, 2023

MARIA A. AUDERO

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UNITED STATES MAGISTRATE JUDGE

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