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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 MICHELLE L.P.,1 Case No. 5:19-cv-01914-JC

12 Plaintiff,

MEMORANDUM OPINION AND

13 v. ORDER OF REMAND 14 ANDREW SAUL, Commissioner of 15 Social Security Administration, 16 Defendant. 17

I. SUMMARY

18 On October 7, 2019, plaintiff filed a Complaint seeking review of the 19 Commissioner of Social Security’s denial of her applications for benefits. The 20 parties have consented to proceed before the undersigned United States Magistrate 21 Judge. 22 This matter is before the Court on Plaintiff’s Motion for Summary Judgment 23 (“Plaintiff’s Motion”), to which defendant filed an opposition (“Defendant’s 24 /// 25 26 27 1Plaintiff’s name is partially redacted to protect her privacy in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court 28 Administration and Case Management of the Judicial Conference of the United States. 1 1 Opposition”). The Court has taken the matter under submission without oral 2 argument. See Fed. R. Civ. P. 78; L.R. 7-15; Case Management Order ¶ 5. 3 Based on the record as a whole and the applicable law, the decision of the 4 Commissioner is REVERSED AND REMANDED for further proceedings 5 consistent with this Memorandum Opinion and Order of Remand. 6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 7 DECISION 8 On January 23, 2017, plaintiff filed an application for Disability Insurance 9 Benefits, alleging disability beginning on September 23, 2016, due to multiple 10 sclerosis, back pain, bipolar disorder, and severe depression and anxiety. 11 (See Administrative Record (“AR”) 251-52, 290). An application for 12 Supplemental Security Income followed on April 25, 2018. (AR 263-69). An 13 Administrative Law Judge (“ALJ”) subsequently examined the medical record and 14 heard testimony from plaintiff (who was represented by counsel), as well as a 15 medical expert and a vocational expert, on April 17, 2019. (AR 47-74). On April 16 30, 2019, the ALJ determined that plaintiff has not been disabled since 17 September 23, 2016, the alleged onset date. (AR 28-40). Specifically, the ALJ 18 found: (1) plaintiff suffers from the following severe impairments: obesity, 19 multiple sclerosis, chronic pain, degenerative disc disease of the cervical spine and 20 lumbar spine, degenerative joint disease of the bilateral knees, and migraine 21 headaches (AR 31); (2) plaintiff’s impairments, considered individually or in 22 combination, do not meet or medically equal a listed impairment (AR 32); 23 (3) plaintiff retains the residual functional capacity (“RFC”) to perform a reduced 24 range of light work (20 C.F.R. §§ 404.1567(b), 416.1967(b)) (AR 33); (4) plaintiff 25 is unable to perform any past relevant work (AR 38); (5) plaintiff is capable of 26 performing other jobs that exist in significant numbers in the national economy, 27 specifically office helper, information clerk, telephone quotation clerk, and 28 paramutual ticket checker (AR 39); and (6) plaintiff’s statements regarding the 2 1 intensity, persistence, and limiting effects of subjective symptoms are not entirely 2 consistent with the medical evidence and other evidence in the record (AR 36). 3 On August 7, 2019, the Appeals Council denied plaintiff’s application for 4 review of the ALJ’s decision. (AR 2-4). 5 III. APPLICABLE LEGAL STANDARDS 6 A. Administrative Evaluation of Disability Claims 7 To qualify for disability benefits, a claimant must show that she is unable 8 “to engage in any substantial gainful activity by reason of any medically 9 determinable physical or mental impairment which can be expected to result in 10 death or which has lasted or can be expected to last for a continuous period of not 11 less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§ 404.1505(a), 12 416.905(a). To be considered disabled, a claimant must have an impairment of 13 such severity that she is incapable of performing work the claimant previously 14 performed (“past relevant work”) as well as any other “work which exists in the 15 national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 16 42 U.S.C. § 423(d)). 17 To assess whether a claimant is disabled, an ALJ is required to use the five- 18 step sequential evaluation process set forth in Social Security regulations. See 19 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) 20 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520, 21 416.920). The claimant has the burden of proof at steps one through four – i.e., 22 determination of whether the claimant was engaging in substantial gainful activity 23 (step 1), has a sufficiently severe impairment (step 2), has an impairment or 24 combination of impairments that meets or medically equals one of the conditions 25 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and 26 retains the residual functional capacity to perform past relevant work (step 4). 27 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The 28 /// 3 1 || Commissioner has the burden of proof at step five —i.e., establishing that the 2 || claimant could perform other work in the national economy. Id. 3 B. Federal Court Review of Social Security Disability Decisions 4 A federal court may set aside a dental of benefits only when the 5 || Commissioner’s “final decision” was “based on legal error or not supported by 6 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 7 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The 8 || standard of review in disability cases is “highly deferential.” Rounds v. Comm’r 9 || of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation 10 | marks omitted). Thus, an ALJ’s decision must be upheld if the evidence could 11 || reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at 12 || 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must 13 || be affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec. 14 || Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if 15 || (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path 16 || may reasonably be discerned despite the error) (citation and quotation marks 17 || omitted). 18 Substantial evidence is “such relevant evidence as a reasonable mind might 19 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining 20 || “substantial evidence” as “more than a mere scintilla, but less than a 21 || preponderance’’) (citation and quotation marks omitted). When determining 22 || whether substantial evidence supports an ALJ’s finding, a court “must consider the 23 || entire record as a whole, weighing both the evidence that supports and the 24 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v. 25 || Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). 26 Federal courts review only the reasoning the ALJ provided, and may not 27 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” 28 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need

1 not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s 2 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 3 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099). 4 A reviewing court may not conclude that an error was harmless based on 5 independent findings gleaned from the administrative record. Brown-Hunter, 806 6 F.3d at 492 (citations omitted). When a reviewing court cannot confidently 7 conclude that an error was harmless, a remand for additional investigation or 8 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 9 (9th Cir. 2015) (citations omitted). 10 IV. DISCUSSION 11 Plaintiff’s sole claim is that the ALJ failed to provide clear, specific, and 12 convincing reasons to discredit her statements and testimony. (Plaintiff’s Motion 13 at 7-15). For the reasons stated below, the Court finds that the ALJ erred on this 14 basis. Since the Court cannot find that the error was harmless, a remand is 15 warranted. 16 A. Pertinent Law 17 When determining disability, an ALJ is required to consider a claimant’s 18 impairment-related pain and other subjective symptoms at each step of the 19 sequential evaluation process. 20 C.F.R. §§ 404.1529(a), (d). Accordingly, when 20 a claimant presents “objective medical evidence of an underlying impairment 21 which might reasonably produce the pain or other symptoms [the claimant] 22 alleged,” the ALJ is required to determine the extent to which the claimant’s 23 statements regarding the intensity, persistence, and limiting effects of his or her 24 subjective symptoms (“subjective statements” or “subjective complaints”) are 25 consistent with the record evidence as a whole and, consequently, whether any of 26 the individual’s symptom-related functional limitations and restrictions are likely 27 to reduce the claimant’s capacity to perform work-related activities. 20 C.F.R. 28 /// 5 1 || §§ 404.1529(a), (c)(4); SSR 16-3p, 2017 WL 5180304, at *4-*10.* When an 2 || individual’s subjective statements are inconsistent with other evidence in the 3 || record, an ALJ may give less weight to such statements and, in turn, find that the 4 || individual’s symptoms are less likely to reduce the claimant’s capacity to perform 5 || work-related activities. See SSR 16-3p, 2017 WL 5180304, at *8. In such cases, 6 || when there is no affirmative finding of malingering, an ALJ may “reject” or give 7 || less weight to the individual’s subjective statements “only by providing specific, 8 || clear, and convincing reasons for doing so.” Brown-Hunter, 806 F.3d at 488-89. 9 || This requirement is very difficult to satisfy. See Trevizo, 871 F.3d at 678 (“The 10 || clear and convincing standard is the most demanding required in Social Security 11 || cases.’’) (citation and quotation marks omitted). 12 An ALJ’s decision “must contain specific reasons” supported by substantial 13 || evidence in the record for giving less weight to a claimant’s statements. SSR 16- 14 || 3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each subjective 15 || statement being rejected and the particular evidence in the record which 16 || purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation 17 || omitted). Unless there is affirmative evidence of malingering, the Commissioner’s 18 || reasons for rejecting a claimant’s testimony must be “clear and convincing.” 19 || Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (internal quotation marks 20 || omitted), as amended (Apr. 9, 1996). “General findings are insufficient[.]” 21 | Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted). 22 If an ALJ’s evaluation of a claimant’s statements is reasonable and is 23 || supported by substantial evidence, it is not the court’s role to second-guess it. See 24 25 %6 ‘Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the term “credibility” from SSA “sub-regulatory policy[]” in order to “clarify that subjective 27 || symptom evaluation is not an examination of an individual’s [overall character or truthfulness] ... [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See 28 || SSR 16-3p, 2017 WL 5180304, at *1-*2, *10-*11.

1 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). When 2 an ALJ fails properly to discuss a claimant’s subjective complaints, however, the 3 error may not be considered harmless “unless [the Court] can confidently conclude 4 that no reasonable ALJ, when fully crediting the testimony, could have reached a 5 different disability determination.” Stout, 454 F.3d at 1056; see also Brown- 6 Hunter, 806 F.3d at 492 (ALJ’s erroneous failure to specify reasons for rejecting 7 claimant testimony “will usually not be harmless”). 8 B. Plaintiff’s Statements 9 Plaintiff testified that she experiences constant pain in her whole body. (AR 10 57-58). The pain eases some with medications, such as Norco, or with “Icy Hot” 11 patches on her back. (AR 58). She stated that she also has numbness and tingling 12 in her hands, feet, toes, shoulders, and neck. (AR 58). About four times a month, 13 she gets “severe migraines” lasting four to five days, which are helped by 14 medication. (AR 58-59). Plaintiff testified that she can sit for about twenty 15 minutes before needing to get up for a few minutes, and can stand or walk for 16 about thirty minutes before needing to sit. (AR 60-61). She stated she can lift 17 only three or four pounds, and has a hard time holding things in her hands. (AR 18 61). 19 Plaintiff also testified that she lives alone in a small cabin with four 20 Chihuahuas, and generally does not leave her home except to go to the doctor or to 21 the grocery store about once a month. (AR 62-63, 65). She tends to isolate herself 22 and cry a lot. (AR 62). She stated that she has difficulty concentrating and has 23 “very bad memory problems,” requiring her to “write everything down.” (AR 63). 24 She stated that the medications help with her anxiety and depression. (AR 63). 25 Plaintiff testified that she cooks and does some cleaning, such as sweeping, 26 mopping, and dish-washing, but with some difficulty. (AR 65-67). She stated she 27 bathes without difficulty, but has a hard time getting in and out of the shower. 28 /// 7 1 (AR 65-66). She brushes her hair and dresses herself when she goes out. (AR 2 66). At night, she does “painting with diamonds” to keep herself busy. (AR 68). 3 C. ALJ’s Assessment 4 The ALJ reviewed the record and found that plaintiff’s medically 5 determinable impairments could reasonably be expected to cause the alleged 6 symptoms, but determined that plaintiff’s statements about the intensity, 7 persistence, and limiting effects of the symptoms were “not entirely consistent 8 with the medical evidence and other evidence in the record for the reasons 9 explained in th[e] decision.” (AR 34, 36). 10 As support, the ALJ found that plaintiff’s statements were not 11 “corroborate[d]” by the objective medical evidence in the record. (AR 36). 12 Specifically, the ALJ noted that plaintiff “ambulated with a normal gait and did 13 not use an assistive device,” despite her complaints of numbness and tingling in 14 her extremities. (AR 36) (citing AR 749-50, 811, 1154). The ALJ also found 15 plaintiff had no problems with coordination and was “able to perform tandem gait, 16 which would be exceedingly difficult for an individual with any type of gait 17 disturbance.” (AR 36-37). Moreover, the ALJ pointed to stable findings from 18 diagnostic testing in 2017 and 2018, with “no evidence of new enhancing lesions.” 19 (AR 37) (citing AR 980, 998). The ALJ further observed that there was “no 20 objective evidence of impaired memory recall or difficulty maintaining focus as 21 indicated by [plaintiff] at the hearing.” (AR 37). 22 Aside from objective medical evidence, the ALJ noted that plaintiff had 23 been “tolerating her medication well” (AR 37) (citing AR 998), and that plaintiff 24 “admitted,” in July 2018, “that she was benefitting from her medication” and was 25 “more functional.” (AR 37) (citing AR 1012). Furthermore, the ALJ found that, 26 despite plaintiff’s “allegations of totally disabling symptoms,” her treating 27 neurologist did not recommend any restrictions in the treatment notes. (AR 37). 28 /// 8 1 Based on the ALJ’s overall assessment of the record, the ALJ concluded 2 that plaintiff had the RFC to perform light work with the following restrictions: 3 [Plaintiff] can lift and/or carry 20 pounds occasionally and less than 4 10 pounds frequently; can stand and/or walk for six hours out of an 5 eight hour workday with regular breaks with the option to change 6 positions at the workstation; can sit for six hours out of an eight-hour 7 workday with regular breaks with the option to change positions at 8 the workstation; can frequently push and/or pull with the upper and 9 lower extremities within the weight limits mentioned above; can 10 occasionally climb ramps and stairs but can never climb ladders, 11 ropes, or scaffolds; can occasionally balance and stoop; cannot kneel 12 or crawl; can occasionally crouch; can frequently handle bilaterally; 13 can frequently feel and finger bilaterally; must avoid concentrated 14 exposure to heat, wetness, vibratory tools and instruments, 15 unprotected machinery, and unprotected heights; and must work in an 16 air conditioned environment. 17 (AR 33). 18 D. Analysis 19 The ALJ’s stated reasons for discounting plaintiff’s testimony are not 20 specific, clear and convincing. First, to the extent that the ALJ relied on a lack of 21 objective medical evidence, as plaintiff points out, this is not a sufficient basis, in 22 itself, to reject a claimant’s testimony, although it may be a relevant factor.3 See, 23 e.g., Burch, 400 F.3d at 681 (“Although lack of medical evidence cannot form the 24 /// 25 26 3Furthermore, even if the ALJ’s assessment of the medical evidence may be reasonable in 27 itself, it is nonetheless notable that the ALJ did not identify any evidence that affirmatively undermined or contradicted plaintiff’s testimony regarding her limited abilities, such as her 28 limitations in sitting, standing, walking, and lifting. 9 1 sole basis for discounting pain testimony, it is a factor that the ALJ can consider in 2 his credibility analysis.”). 3 Aside from the medical evidence, the ALJ’s only other express grounds for 4 rejecting the testimony were that (1) plaintiff reported some improvement with 5 medication, and (2) the treatment notes of plaintiff’s neurologist did not contain 6 any recommended restrictions.4 (AR 37). As for the latter ground, plaintiff’s 7 treating neurologist did not provide a medical opinion in the record. Although the 8 ALJ reasoned that if plaintiff was as limited as alleged, “one might expect to see 9 some indication in the treatment records of restrictions placed on [plaintiff] by her 10 treating neurologist,” the lack of such indication does not mean that the 11 neurologist believed plaintiff had no restrictions. Nor is it equivalent to a medical 12 opinion as such. 13 Otherwise, as support for finding that plaintiff’s medications helped, the 14 ALJ pointed to one treatment note stating plaintiff was “on Tysabri which she is 15 tolerating well” (AR 998), and another treatment note stating plaintiff “[f]eels that 16 17 4Defendant asserts that the ALJ’s assessment of plaintiff’s testimony was also based on “treatment notes indicating that [p]laintiff declined to participate in physical therapy” and the 18 ALJ’s observations of plaintiff’s “demeanor at the hearing that displayed her ability to remember and focus despite her allegations to the contrary.” (Defendant’s Opposition at 5). However, this 19 is not reflected in the ALJ’s decision. For example, when summarizing the medical records, the 20 ALJ briefly noted plaintiff “declined physical therapy” (AR 34; see AR 821), but the ALJ never mentioned this as a basis for discounting plaintiff’s allegations. See Lambert v. Saul, ___ F.3d 21 ___, No. 19-17102, 2020 WL 6735633, at *10 (9th Cir. Nov. 17, 2020) (“Although the ALJ did 22 provide a relatively detailed overview of [the claimant’s] medical history, ‘providing a summary of medical evidence . . . is not the same as providing clear and convincing reasons for finding the 23 claimant’s symptom testimony not credible.’”) (quoting Brown-Hunter, 806 F.3d at 494); 24 Brown-Hunter, 806 F.3d at 494 (“We are constrained to review the reasons the ALJ asserts.”). The ALJ also never stated that his observations of plaintiff at the hearing were a basis for the 25 assessment. Instead, in discussing how plaintiff’s testimony was not “corroborate[d]” by the “objective medical evidence,” the ALJ stated there was “no objective evidence of impaired 26 memory recall or difficulty maintaining focus as indicated by [plaintiff] at the hearing.” (AR 37). 27 Contrary to defendant’s view, this statement simply refers to the fact that plaintiff had “indicated . . . at the hearing” that she had difficulty with memory recall and maintaining focus, and the ALJ 28 found no “objective evidence” in the record to support this. 10 1 || she is benefitting from the pain med [Norco] as it makes her more functional and 2 || is able to better operate her day...” (AR 1012). Plaintiff, in fact, testified that 3 || her pain medications helped ease the pain, to some degree, so the ALJ’s 4 || observation here is merely consistent with that testimony. (AR 58). However, as 5 || plaintiff contends, improved functioning does not equate with an ability to 6 | function effectively in a workplace. (Plaintiff's Motion at 11-12). Indeed, 7 || notwithstanding this improvement from medication, plaintiff also testified that the 8 || pain persisted and her physical abilities were still limited. (See AR 57-61). 9 || Because the ALJ failed to point to any evidence that undermines or contradicts 10 | any of plaintiff's testimony, this is not a clear and convincing basis to reject her 11 || subjective statements. See Lambert v. Saul, F.3d , No. 19-17102, 2020 12 | WL 6735633, at *10 (9th Cir. Nov. 17, 2020) (“[O]ur precedents plainly required 13 || the ALJ to do more than was done here, which consisted of offering non-specific 14 || conclusions that [the claimant’s] testimony was inconsistent with her medical 15 | treatment.” (citing Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014)); 16 || Brown-Hunter, 806 F.3d at 494 (“We cannot review whether the ALJ provided 17 || specific, clear, and convincing reasons for rejecting [the claimant’s] pain 18 || testimony where, as here, the ALJ never identified which testimony she found not 19 || credible, and never explained which evidence contradicted that testimony.”). 20 | /// 21 22 *In Lambert, the ALJ rejected the claimant’s testimony based on four reasons: First, 23 || Lambert had “not generally received the type of medical treatment one would expect for a totally 74 disabled individual.” Second, the “record reflect[ed] significant gaps in [her] history of treatment and relatively infrequent trips to the doctor for the allegedly disabling symptoms.” Third, 25 || Lambert’s “use of medications [did] not suggest the presence of impairments which [were] more 6 limiting than found in th[e] decision.” Finally, “medications ha[d] been relatively effective in controlling [her] symptoms.” Lambert, 2020 WL 6735633, at *3. The Ninth Circuit held that 27 || these “four high-level reasons” were not clear and convincing reasons to reject the claimant’s testimony because the ALJ never specified which testimony conflicted with the record evidence. 28 Id. at *10. 11

1 Accordingly, the ALJ erred by failing to provide specific, clear, and 2 convincing reasons to discount plaintiff’s subjective statements. Remand is 3 warranted for reconsideration of these statements. 4 V. CONCLUSION 5 For the foregoing reasons, the decision of the Commissioner of Social 6 Security is REVERSED and this matter is REMANDED for further administrative 7 action consistent with this Opinion.6 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9 DATED: November 27, 2020 10 _____________/s/____________________ Honorable Jacqueline Chooljian 11

UNITED STATES MAGISTRATE JUDGE

12 13 14 15 16 17 18 19 20 21 22 23 24 25 6When a court reverses an administrative determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” 26 Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and 27 quotations omitted); Treichler, 775 F.3d at 1099 (noting such “ordinary remand rule” applies in Social Security cases) (citations omitted). The Court has determined that a reversal and remand 28 for immediate payment of benefits would not be appropriate. 12