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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAMES F.C., Case No. CV 8:23-1787 (RAO)

12 Plaintiff,

13 v. MEMORANDUM OPINION

AND ORDER

14 MARTIN J. O’MALLEY,1 Acting Commissioner of Social 15 Security, Defendant. 16 17 18 I. INTRODUCTION 19 Plaintiff James F.C.2 (“Plaintiff”) challenges the Commissioner’s denial of his 20 application for disability insurance benefits (“DIB”) and supplemental security 21 income (“SSI”). For the reasons stated below, the decision of the Commissioner is 22 REVERSED. 23 24 25 1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin J. O’Malley, the Commissioner of Social Security, is hereby substituted as the defendant. 26 2 Plaintiff’s name is partially redacted in compliance 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 II. SUMMARY OF PROCEEDINGS 2 Plaintiff applied for DIB on February 12, 2013, and for SSI on March 2, 2013, 3 alleging disability beginning January 1, 2007. (AR 174-78 (DIB), 183-91 (SSI).) 4 Plaintiff added checking accounts, income, and resources to his SSI application on 5 March 25, 2013. (AR 201-02.) His claims were denied initially on June 12, 2013, 6 and upon reconsideration on October 16, 2013. (See AR 46-65, 66-87.) Plaintiff 7 requested an administrative hearing before an administrative law judge (“ALJ”), and 8 the hearing was held on September 16, 2014. (See AR 24-45.) 9 The November 4, 2014, Decision 10 On November 4, 2014, the ALJ followed the familiar five-step sequential 11 evaluation process for determining disability and issued an unfavorable decision. 12 (See AR 8-23.) At step one, the ALJ found Plaintiff had not engaged in substantial 13 gainful activity since January 1, 2007, the alleged onset date. (AR 13.) At step two, 14 the ALJ determined that Plaintiff had one severe impairment: degenerative disc 15 disease of the lumbar spine with grade 1 spondylolisthesis at L4-5. (Id.) At step 16 three, the ALJ concluded that Plaintiff did not have an impairment or combination 17 thereof that meets the severity of the listed impairments in 20 C.F.R. Part 404, 18 Subpart P, Appendix 1. (AR 14.) The ALJ assessed that Plaintiff also had the 19 residual functional capacity (“RFC”) to perform less than a full range of light work 20 as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b): He can stand six hours in an 21 eight-hour day; stand or walk six hours in an eight-hour day with normal workday 22 breaks but he may be able to change positions briefly one to three minutes every 23 hour; occasionally lift 20 pounds and 10 pounds frequently; occasionally climb stairs, 24 bend, balance, stoop, kneel, crouch or crawl; and no climbing ladders, ropes or 25 scaffolds or working at unprotected heights. (AR 15.) At step four, the ALJ 26 concluded that Plaintiff could perform past relevant work as a sales representative in 27 financial services, which does not require the performance of work-related activities 28 1 precluded by his RFC. (AR 19.) The ALJ concluded Plaintiff was not under 2 disability. (Id.) 3 After the Appeals Council denied Plaintiff’s request for review on September 4 5, 2019, (AR 1-6), Plaintiff filed suit asking the Court to reverse and remand the 5 matter. See James C. v. Saul, No. 19-2077 (C.D. Cal. Mar. 7, 2022). This Court 6 affirmed the Commissioner’s decision. The Ninth Circuit vacated that decision and 7 remanded the matter in light of Carr v. Saul, 593 U.S. 83 (2021), which permits 8 claimants to challenge the propriety of an ALJ’s appointment in federal court even if 9 they did not challenge it in administrative proceedings. The Appeals Council 10 remanded Plaintiff’s case to a different ALJ because Plaintiff challenged the manner 11 in which the ALJ was appointed. (AR 598.) 12 The July 26, 2023, Decision 13 Another hearing at which an impartial vocational expert testified occurred on 14 April 25, 2023. (AR 509-55.) The Commissioner issued a partially favorable 15 decision on July 26, 2023. (See AR 485-508.) 16 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 17 activity since January 1, 2007, the alleged onset date. (AR 491.) At step two, the 18 ALJ determined that Plaintiff had one severe impairment: disc disease of the lumbar 19 spine. (Id.) At step three, the ALJ concluded that Plaintiff did not have an 20 impairment or combination thereof that meets the severity of the listed impairments 21 in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 493.) The ALJ assessed that 22 prior to January 1, 2022, the date Plaintiff became disabled, Plaintiff had the RFC to 23 perform less than a full range of light work as defined in 20 C.F.R. §§ 404.1567(b) 24 and 416.967(b): He can lift and carry 20 pounds occasionally and 10 pounds 25 frequently; can stand and walk for six hours in an eight-hour workday; can sit for six 26 hours in an eight-hour workday; cannot climb ladders, ropes or scaffolds; can 27 occasionally climb ramps and stairs; and can occasionally balance, stoop, kneel, 28 crouch, and crawl. (AR 493.) The ALJ determined Plaintiff’s RFC was the same 1 post-January 1, 2022. (AR 496-97.) At step four, prior to January 1, 2022, the ALJ 2 concluded that Plaintiff could perform past relevant work as a loan officer and license 3 clerk (composite job), which does not require the performance of work-related 4 activities precluded by his RFC. (AR 496.) As of January 1, 2022, Plaintiff had no 5 past relevant work. (AR 498.) At step five, as of January 1, 2022, considering 6 Plaintiff’s age, education, work, experience, and RFC, no jobs exist in significant 7 numbers in the national economy that Plaintiff can perform. (Id.) Accordingly, the 8 ALJ concluded Plaintiff was not disabled prior to January 1, 2022, but then became 9 disabled on that date, and remains disabled. (Id.) 10 On September 25, 2023, Plaintiff filed suit in this Court challenging the 11 Commissioner’s decision. (Dkt. No. 1.) The parties filed their respective briefs for 12 the Court’s consideration. (See generally Dkt. Nos. 14 (“Pl. Brief”), 16 (“Comm’r 13 Brief”), 17 (“Pl. Reply”).) 14 15 III. STANDARD OF REVIEW 16 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 17 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 18 supported by substantial evidence, and if the proper legal standards were applied. 19 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “Substantial evidence . 20 . . is ‘more than a mere scintilla[,]’ . . . [which] means—and means only—‘such 21 relevant evidence as a reasonable mind might accept as adequate to support a 22 conclusion.’” Biestek v. Berryhill, 587 U.S. __, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 23 504 (2019) (citations omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). 24 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 25 specific quantum of supporting evidence. Rather, a court must consider the record 26 as a whole, weighing both evidence that supports and evidence that detracts from the 27 Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 28 (citations and internal quotations omitted). “‘Where evidence is susceptible to more 1 than one rational interpretation,’ the ALJ’s decision should be upheld.” Ryan v. 2 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart, 3 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins v. Soc. Sec. Admin., 466 F.3d 4 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing 5 the ALJ’s conclusion, we may not substitute our judgment for that of the ALJ.”). The 6 Court may review only “the reasons provided by the ALJ in the disability 7 determination and may not affirm the ALJ on a ground upon which he did not rely.” 8 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 9 F.3d 871, 874 (9th Cir. 2003)). 10 11 IV. DISCUSSION 12 Plaintiff raises three issues for review: (1) whether the ALJ applied the 13 appropriate standard for cases filed prior to March 2017; (2) whether a mental 14 impairment would preclude an SVP 6 reasoning level 4 job; (3) whether the ALJ 15 properly evaluated Plaintiff’s subjective symptom testimony. (Pl. Brief at 11-22.) 16 Because remand is warranted on the third issue alone, the Court declines to address 17 the first and second issues. 18 A. Whether the ALJ properly evaluated Plaintiff’s symptom testimony 19 Plaintiff argues the ALJ did not provide clear and convincing reasons to reject 20 Plaintiff’s symptom testimony. (Pl. Brief at 20.) The Commissioner argues the ALJ 21 properly discounted Plaintiff’s symptom testimony on the basis of objective medical 22 evidence, conflicting statements between Plaintiff’s statements and those of medical 23 sources, improvement with treatment, and noncompliance with treatment. (Comm’r 24 Brief at 8-14.) The Court agrees with Plaintiff. 25 B. Plaintiff’s Symptom Testimony 26 At the April 25, 2023 hearing, Plaintiff testified to having worked as a notary 27 and loan officer between 2005 and 2008. (See AR 524-28.) Those jobs required him 28 to sit at a table or in his car, sometimes traveling 125 miles away to an appointment. 1 (AR 528.) He stated that being in a car for that long became troublesome because of 2 pain and needing to get up every 45 minutes to stretch. (Id.) Those jobs did not 3 require heavy lifting. (AR 529.) 4 Between 2007 and 2012, Plaintiff searched for “sitting down jobs” where he 5 did not have to lift much and could work only for a couple of hours per day. (AR 6 534.) He testified he does not think he could have worked during that time period 7 because, starting in 2008, he experienced pain in his lower back. (AR 534-35.) 8 Plaintiff did not have medical coverage during that time and experienced difficulty 9 breathing and exerting himself. (AR 535.) He testified that when he got sick, he was 10 sick for a couple of weeks. (Id.) Plaintiff stated he had pain in the L5 lumbar region 11 that was worse than the pain in his neck, though the neck pain prohibited him from 12 using his upper extremities because it would cause headaches. (AR 535-36.) 13 Plaintiff testified he had was fired from a job sometime after 2007; he was sick 14 for two weeks and was fired upon his return. (AR 537.) He stopped working in his 15 traveling notary business because the driving became “too much” for him, and he 16 was taking strong painkillers. (Id.) Plaintiff testified that after moving boxes full of 17 books, his back started hurting badly. (Id.) He testified to going to Urgent Care, 18 which directed him to see a doctor. (AR 538.) Plaintiff denied having a concave 19 shoulder, but state that doctors may have noticed something that did not cause him 20 pain, and that one of his legs is shorter than the other. (Id.) Plaintiff experiences 21 pain in his hands—they get stiff and tingly, and while it does not affect his ability to 22 pick things up or grip, it makes it more difficult for him to tie things or move his 23 fingers. (AR 538-39.) He feels the maximum weight he can carry is about the weight 24 of a gallon of water; he began experiencing pain after holding up a gallon of water 25 for about six seconds. (AR 539-40.) 26 Between 2012 and 2016, Plaintiff searched for and obtained phone solicitation 27 jobs. They required a few hours per night, and his doctors had told him he should 28 not work more than 25 or 30 hours per week. (AR 531.) 1 Plaintiff testified all of his telecom jobs after 2012 were part-time, sitting down 2 jobs; he would have been unable to do those jobs full-time because he would need to 3 move around a lot and would have missed a lot of workdays. (AR 540.) Missing 4 work was one of the reasons he had been let go from prior employment. (Id.) 5 Plaintiff began using a walker in 2014. He has had two falls since getting the walker 6 and needs to use either the cane or the walker at all times. (AR 540-41.) 7 Plaintiff testified that his previous jobs have required attention to detail; that 8 he took oxycodone on an as-needed basis; and that he did not feel capable of paying 9 attention to detail when he was on oxycodone. (AR 542-43.) Plaintiff reported 10 having trouble concentrating and that it affects his sleep. (AR 543.) Plaintiff has 11 several inhalers, none of which use oxygen; his chronic obstructive pulmonary 12 disease prevents him from doing anything too strenuous. He experiences pain and 13 shortness of breath when walking. (Id.) Plaintiff testified to receiving treatment from 14 a pain management doctor, a psychologist, a psychiatrist, and a physical therapist. 15 (AR 544-45.) 16 C. Applicable Law 17 There is a two-step process for evaluating a claimant’s testimony about the 18 severity and limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 19 586, 591 (9th Cir. 2009). “First, the ALJ must determine whether the claimant has 20 presented objective medical evidence of an underlying impairment ‘which could 21 reasonably be expected to produce the pain or other symptoms 22 alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 23 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). 24 Once satisfied, the ALJ must examine the entire case record, which includes the 25 claimant’s own testimony, for evidence on the intensity, persistence, and limiting 26 effects of her symptoms. In evaluating the claimant’s credibility, a court may 27 consider a multitude of factors, such as inconsistencies between the claimant’s 28 statements, objective medical evidence, the claimant’s daily activities, the claimant’s 1 work record, and statements from healthcare providers or third parties about the 2 nature, severity, and effect of the symptoms. Thomas v. Barnhart, 278 F.3d 947, 3 958-59 (9th Cir. 2002). However, a lack of objective medical evidence substantiating 4 the claimant’s statements about her symptoms by itself is not grounds for discrediting 5 the claimant’s symptom testimony. Id. 6 D. Analysis 7 Here, the ALJ cited a lack of objective medical evidence as the sole reason for 8 discounting Plaintiff’s symptom testimony. (See AR 494-96.) Even assuming 9 arguendo there is a lack of objective medical evidence substantiating Plaintiff’s 10 testimony, the ALJ erred here because objective medical evidence alone cannot 11 discount that testimony. See Bunnell, 947 F.2d at 345. 12 The Court finds all of the Commissioner’s arguments unpersuasive. (See 13 Comm’r Brief at 9-13.) The Commissioner’s argument that the ALJ relied on 14 inconsistences with medical evidence, as opposed to a lack thereof, is unpersuasive 15 because the relevant portion of the ALJ’s decision is a mere summary of clinical 16 findings that makes no connection to Plaintiff’s testimony. See Brown-Hunter v. 17 Colvin, 806 F.3d 487, 494 (9th Cir. 2015); Morgan v. Comm’r of Soc. Sec. Admin., 18 169 F.3d 595, 599 (9th Cir. 1999). The Commissioner’s argument with respect to 19 Dr. Ali’s testimony and Plaintiff’s purported improvement with treatment, (Comm’r 20 Brief at 12-13), fails for the same reason. (See AR 494-95.) As to Plaintiff’s 21 purported noncompliance with treatment, (Comm’r Brief at 13), there is no indication 22 the ALJ considered this factor because it is not mentioned in his decision, and the 23 Court cannot affirm a decision on a ground upon which the ALJ did not rely. See 24 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. 25 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 26 /// 27 /// 28 /// 1 V. REMAND 2 The Court recognizes Plaintiff has waited quite some time for a resolution to 3 this matter, (Pl. Brief at 22), but the circumstances of his case do not rise to a level 4 warranting remand for an award of benefits. See Brown-Hunter, 806 F.3d at 495. 5 Thus, the Court finds that remand for further administrative proceedings is 6 appropriate, as further administrative review could remedy the ALJ’s errors. The 7 ALJ failed to provide specific, clear, and convincing reasons supported by 8 substantial evidence to discount Plaintiff’s subjective symptom testimony. On 9 remand, the ALJ shall not only reassess Plaintiff’s symptom testimony, but also Dr. 10 Van Dyke’s and Dr. Hemphill’s medical opinions and Plaintiff’s mental limitations. 11 (See Pl. Brief at 11-17 (medical opinions), 17-19 (mental limitations); see generally 12 Pl. Reply.) The ALJ shall then reassess Plaintiff’s RFC and proceed through step 13 four and, if necessary, step five to determine what work, if any, Plaintiff is capable 14 of performing. 15 16 VI. CONCLUSION 17 IT IS ORDERED that Judgment shall be entered REVERSING and 18 REMANDING the decision of the Commissioner denying his applications for DIB 19 and SSI. 20 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 21 Order and the Judgment on counsel for both parties. 22 23 DATED: April 30, 2024 /s/

ROZELLA A. OLIVER

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UNITED STATES MAGISTRATE JUDGE

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26

NOTICE

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THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,

28 LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.