1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 IRMA O. L., ) NO. CV 19-3115-E ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION ) 14 ANDREW SAUL, Commissioner of ) AND ORDER OF REMAND Social Security, ) 15 ) Defendant. ) 16 ___________________________________) 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that this matter is remanded for further administrative 20 action consistent with this Opinion. 21 22 PROCEEDINGS 23 24 Plaintiff filed a complaint on April 22, 2019, seeking review of 25 the Commissioner’s denial of benefits. The parties consented to 26 proceed before a United States Magistrate Judge on May 28, 2019. 27 The parties filed a Joint Stipulation on February 20, 2020. Following 28 the retirement of Magistrate Judge Mumm, the case was transferred to 1 Magistrate Judge Eick on April 29, 2020. The Court has taken the 2 matter under submission without oral argument. See L.R. 7-15; “Case 3 Management Order,” filed April 29, 2019. 4 5 BACKGROUND 6 7 Plaintiff, a former cafeteria helper, alleges disability based 8 primarily on orthopedic impairments (Administrative Record (“A.R.”) 9 74, 86-87, 90-96, 237, 244, 285, 298-300). Plaintiff claims to suffer 10 from knee and back pain of disabling severity despite pain management 11 treatment that has included narcotic pain medication (Tramadol) and 12 pain injections (A.R. 26, 74, 86-87, 90-96, 266, 298-300, 634, 643, 13 724, 725, 753, 770, 788, 1042-50, 1062, 1088-94). 14 15 The Administrative Law Judge (“ALJ”) found Plaintiff has several 16 “severe” orthopedic impairments, including left knee osteoarthritis 17 and degenerative disc disease of the spine (A.R. 22). However, the 18 ALJ discounted the claimed severity of Plaintiff’s pain and functional 19 limitations in deeming Plaintiff not disabled (A.R. 22-27). The 20 Appeals Council denied review (A.R. 1-3). 21 22 STANDARD OF REVIEW 23 24 Under 42 U.S.C. section 405(g), this Court reviews the 25 Administration’s decision to determine if: (1) the Administration’s 26 findings are supported by substantial evidence; and (2) the 27 Administration used correct legal standards. See Carmickle v. 28 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 1 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 2 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such 3 relevant evidence as a reasonable mind might accept as adequate to 4 support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 5 (1971) (citation and quotations omitted); see also Widmark v. 6 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 7 8 If the evidence can support either outcome, the court may 9 not substitute its judgment for that of the ALJ. But the 10 Commissioner’s decision cannot be affirmed simply by 11 isolating a specific quantum of supporting evidence. 12 Rather, a court must consider the record as a whole, 13 weighing both evidence that supports and evidence that 14 detracts from the [administrative] conclusion. 15 16 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 17 quotations omitted). 18 19 DISCUSSION 20 21 After consideration of the record as a whole, the Court reverses 22 the Administration’s decision in part and remands the matter for 23 further administrative proceedings. 24 25 Where, as here, an ALJ finds that a claimant’s medically 26 determinable impairments reasonably could be expected to cause some 27 degree of the alleged symptoms of which the claimant subjectively 28 complains, any discounting of the claimant’s complaints must be 1|| supported by “specific, cogent” findings. See Berry v. Astrue, 622 2) F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 3 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th 4|| Cir. 1996) (indicating that ALJ must state “specific, clear and 5] convincing” reasons to reject a claimant’s testimony where there is no evidence of malingering) .* Generalized, conclusory findings do not 7) suffice. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) 8] (the ALJ’s credibility findings “must be sufficiently specific to 9|| allow a reviewing court to conclude the ALJ rejected the claimant’s testimony on permissible grounds and did not arbitrarily discredit the 11] claimant’s testimony”) (internal citations and quotations omitted) ; 12] Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ must “specifically identify the testimony [the ALJ] finds not to be credible and must explain what evidence undermines the testimony”) ; 15| Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion.”); see also Social Security Ruling (“SSR”) 18] 96-7p (explaining how to assess a claimant’s credibility), superseded, 19} /// 20 21 In the absence of an ALJ’s reliance on evidence of 22| “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 25 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting 27| earlier cases). In the present case, the ALJ’s findings are insufficient under either standard, so the distinction between 281 the two standards (if any) is academic. fl

1| SSR 16-3p (eff. March 28, 2016) .’ 2 3 In the present case, the ALJ stated only two specific reasons for 4|| discounting Plaintiff's subjective complaints of pain and functional limitations: (1) the objective medical evidence (“there does not 6| appear to be sufficient clinical signs and laboratory findings to objectively support those subjective limitations”; and (2) the 8| assertedly “conservative” nature of the treatment Plaintiff has 9|| received for her pain (“the claimant’s seeming acceptance of only 10] conservative treatment after June 2014 [when Plaintiff underwent knee 11] surgery], serves to undermine the extent and persistence of her subjective pain symptoms and limitations as alleged”) (A.R. 27). As demonstrated below, these stated reasons are legally insufficient 14] under the circumstances of this case. 15 16 With regard to the first stated reason, inconsistencies between a 17] claimant’s subjective complaints and the objective medical evidence 18] can be a factor in discounting a claimant’s subjective complaints, but 19] cannot “form the sole basis.” See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 21] 2001). Therefore, the validity of the ALJ’s discounting of Plaintiff's complaints stands or falls with the second stated reason, 23 ? SSRs are binding on the Administration. See Terry v. 241! sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). The 25 appropriate analysis under the superseding SSR is substantially the same as the analysis under the superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16-3p “implemented a change in diction rather than substance”) (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that ssp 16-3p “makes clear what our precedent already required”). qq

the assertedly “conservative” nature of the treatment Plaintiff has 2| received. 3 4 A limited course of treatment sometimes can justify the discounting of a claimant’s subjective complaints, at least where the 6|| complaints concern physical problems. See, e.g., Burch v. Barnhart, 400 F.3d at 681 (lack of consistent treatment, such as where there was a three to four month gap in treatment, properly considered in 9|| discrediting claimant’s back pain testimony); Meanel v. Apfel, 172 10] F.3d 1111, 1114 (9th Cir. 1999) (in assessing the credibility of a 11] claimant’s pain testimony, the Administration properly may consider 12] the claimant’s failure to request treatment and failure to follow treatment advice) (citing Bunnell v. Sullivan, 947 F.2d 341, 346 (9th 14] Cir. 1991) (en banc)); Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993) (permissible credibility factors in assessing pain 16] testimony include limited treatment and minimal use of medications) ; 17] see also Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) 18] (absence of treatment for back pain during half of the alleged 19] disability period, and evidence of only “conservative treatment” when 20] the claimant finally sought treatment, sufficient to discount claimant’s testimony). 22 23 In the present case, however, it is doubtful Plaintiff’s treatment with narcotic pain medication and pain injections over an 25| extended period of time properly may be characterized as 26| “conservative” within the meaning of Ninth Circuit jurisprudence. 27| See, e.g., Garrison v. Colvin, 759 F.3d 995, 1015 n.20 (9th Cir. 2014) (“we doubt that epidural steroid shots to the neck and lower back gg

1 qualify as “conservative’ medical treatment”); Shepard v. Colvin, 2015 2 WL 9490094, at *7 (E.D. Cal. Dec. 30, 2015) (“[p]rior cases in the 3 Ninth Circuit have found that treatment was conservative when the 4 claimant’s pain was adequately treated with over-the-counter 5 medication and other minimal treatment,” however where record 6 reflected heavy reliance on Tramadol and Oxycodone and other 7 prescriptions for pain, record did not support finding that treatment 8 was “conservative”) (internal citations omitted; citing for comparison 9 Lapeirre-Gutt v. Astrue, 382 Fed. App’x. 662, 664 (9th Cir. 2010) 10 (doubting whether “copious amounts of narcotic pain medication” as 11 well as nerve blocks and trigger point injections constituted 12 “conservative” treatment)); Aguilar v. Colvin, 2014 WL 3557308, at *8 13 (C.D. Cal. July 18, 2014) (“It would be difficult to fault Plaintiff 14 for overly conservative treatment when he has been prescribed strong 15 narcotic pain medications”); Christie v. Astrue, 2011 WL 4368189, at 16 *4 (C.D. Cal. Sept. 16, 2011) (refusing to characterize as 17 “conservative” treatment that included narcotic pain medication and 18 epidural injections); Eicholtz v. Astrue, 2008 WL 4642976, at *3 (C.D. 19 Cal. Oct. 20, 2008) (court acknowledged the precept that “[a]n ALJ may 20 discount a claimant’s testimony based on conservative treatment,” but 21 appeared to deem this precept inapplicable because the claimant took 22 Tramadol). 23 24 Furthermore, the ALJ appears to have inferred that, if 25 Plaintiff’s pain truly were as intense as she claims, she would have 26 received more aggressive treatment (such as surgery) and that such 27 treatment would have been effective in reducing pain and restoring 28 function. The ALJ was not competent to make the medical judgments 1|| underlying these apparent inferences. See Balsamo v. Chater, 142 F.3d 2) 75, 81 (2d Cir. 1998); see also Rohan v. Chater, 98 F.3d 966, 970 (7th 3] Cir. 1996) (“ALJs must not succumb to the temptation to play doctor 4| and make their own independent medical findings”); Day v. Weinberger, 5] 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is forbidden from making 6| his or her own medical assessment beyond that demonstrated by the 7) record). No substantial evidence supports the ALJ’s lay inferences on these medical matters. To the contrary, Plaintiff’s pain management 9| specialist reportedly believes that surgery would not help Plaintiff 10 (A.R. 87-88). 11 12 The Court is unable to conclude that the ALJ’s failure to state legally sufficient reasons for discounting Plaintiff's subjective complaints was harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 15] (9th Cir. 2012) (an error “is harmless where it is inconsequential to 16] the ultimate non-disability determination”) (citations and quotations 17] omitted); McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error 18] not harmless where “the reviewing court can determine from the ‘circumstances of the case’ that further administrative review is needed to determine whether there was prejudice from the error”). 21 22 Contrary to Plaintiff's argument, a remand for further 23|| administrative proceedings, rather than an order for the immediate calculation of benefits, is the appropriate remedy in this case. See McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 537 U.S. 26] 12, 16 (2002) (upon reversal of an administrative determination, the 27| proper course is remand for additional agency investigation or 28|| explanation, except in rare circumstances); Leon v. Berryhill, 880

1] F.3d 1041, 1044 (9th Cir. 2017) (reversal with a directive for the 2| immediate calculation of benefits is a “rare and prophylactic 3] exception to the well-established ordinary remand rule”); Dominguez v. 4] Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court 5] concludes that further administrative proceedings would serve no 6| useful purpose, it may not remand with a direction to provide benefits”); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th 8] Cir. 2014) (remand for further administrative proceedings is the 9|| proper remedy “in all but the rarest cases”); Harman v. Apfel, 211 10] F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) 11] (remand for further proceedings rather than for the immediate payment of benefits is appropriate where there are “sufficient unanswered questions in the record”); Connett v. Barnhart, 340 F.3d 871, 876 (9th 14] Cir. 2003) (“Connett”) (remand is an option where the ALJ fails to 15] state sufficient reasons for rejecting a claimant’s excess symptom 16] testimony); but see Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007) 17] (citing Connett for the proposition that “[w]hen an ALJ’s reasons for 18] rejecting the claimant’s testimony are legally insufficient and it is clear from the record that the ALJ would be required to determine the claimant disabled if he had credited the claimant’s testimony, we 21| remand for a calculation of benefits”) (quotations omitted); see also 22| Brown-Hunter v. Colvin, 806 F.3d 487, 495-96 (9th Cir. 2015) (discussing the narrow circumstances in which a court will order a benefits calculation rather than further proceedings); Ghanim v. 25] Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014) (remanding for further 26|| proceedings where the ALJ failed to state sufficient reasons for 27|| deeming a claimant’s testimony not credible); Vasquez v. Astrue, 572 28] F.3d 586, 600-01 (9th Cir. 2009) (a court need not “credit as true”

1 improperly rejected claimant testimony where there are outstanding 2 issues that must be resolved before a proper disability determination 3 can be made). There remain significant unanswered questions in the 4 present record. Furthermore, an order for the immediate calculation 5 of benefits is improper where, as here, “evaluation of the record as a 6 whole creates serious doubt that a claimant is, in fact, disabled.” 7 Garrison v. Colvin, 759 F.3d at 1021. 8 9 CONCLUSION 10 11 For all of the foregoing reasons, this matter is remanded for 12 further administrative action consistent with this Opinion. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATED: May 6, 2020. 17 18 /s/

CHARLES F. EICK

19 UNITED STATES MAGISTRATE JUDGE

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