1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DARRIN H. D.,1 Case No. 5:20-cv-00479-AFM 12 Plaintiff,

MEMORANDUM OPINION AND

13 v.

ORDER REVERSING AND

14 ANDREW SAUL, REMANDING DECISION OF 15 Commissioner of Social Security, THE COMMISSIONER 16 Defendant. 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying his applications for disability insurance benefits. In accordance with the 20 Court’s case management order, the parties have filed briefs addressing the merits of 21 the disputed issues. The matter is now ready for decision. 22 BACKGROUND 23 On December 2, 2015 and October 31, 2018, Plaintiff applied for disability 24 insurance benefits, alleging disability beginning January 15, 2014. Plaintiff’s 25 applications were denied initially and upon reconsideration. (Administrative Record 26 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 27 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 28 1 [“AR”] 82-86, 92-97.) A hearing took place on October 31, 2018 before an 2 Administrative Law Judge (“ALJ”). Plaintiff, who was represented by counsel, and 3 a vocational expert (“VE”) testified at the hearing. (AR 31-57.) 4 In a decision dated January 16, 2019, the ALJ found that Plaintiff suffered 5 from the following severe impairments: osteomyelitis of the left foot; bilateral 6 neuropathy; deep vein thrombosis; and obesity.(AR17.)After finding that Plaintiff’s 7 impairments did not meet or equal any listed impairment or combination of 8 impairments (AR 19), the ALJ assessed Plaintiffwith theresidual functional capacity 9 (“RFC”) to perform a sedentary work as follows: can occasionally push and pull 10 with the bilateral lower extremities; can occasionally climb ramps and stairs; can 11 never climb ladders, ropes and scaffolds, and crawl; can occasionally balance, stoop, 12 kneel, and crouch; can have no concentrated exposure to fumes, odors, dusts, gases, 13 and poor ventilation; no exposure to hazards such as machinery, unprotected heights 14 or open bodies of water; would require sit/stand option, meaning every hour an 15 individual needs to stand for period of five minutes without needing to leave the 16 workplace; and limited to simple routine tasks due to pain and effects of medication. 17 (AR 20.) Relying on the testimony of the VE, the ALJ concluded that Plaintiff was 18 unable to perform his past relevant work, but based on Plaintiff’s age, education, work 19 experience, and RFC, was able to perform other work existing in significant 20 numbers in the national economy. (AR 25-26.) Accordingly, the ALJ found 21 Plaintiff not disabled. (AR 26.) 22 The Appeals Council subsequently denied Plaintiff’s request for review (AR 23 1-6), rendering the ALJ’s decision the final decision of the Commissioner. 24 DISPUTED ISSUE 25 Whether the ALJ erred in evaluating Plaintiff’s subjective symptom testimony. 26 STANDARD OF REVIEW 27 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 28 determine whether the Commissioner’s findings are supported by substantial 1 evidence and whether the proper legal standards were applied. See Treichler v. 2 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 3 evidence means “more than a mere scintilla” but less than a preponderance. See 4 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 5 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 6 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 7 U.S. at 401. In the social security context, the threshold for substantial evidence is 8 “not high.” Biestek v. Berryhill, 139 S. Ct. 1149, 1154 (2019). This Court must 9 review the record as a whole, weighing both the evidence that supports and the 10 evidence that detracts from the Commissioner’s conclusion. Lingenfelter, 504 F.3d 11 at 1035. Where evidence is susceptible of more than one rational interpretation, the 12 Commissioner’s decision must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th 13 Cir. 2007). 14 DISCUSSION 15 Where, as here, a claimant has presented evidence of an underlying impairment 16 that could reasonably be expected to produce pain or other symptoms, the ALJ must 17 “evaluate the intensity and persistence of [the] individual’s symptoms ... and 18 determine the extent to which [those] symptoms limit his ... ability to perform work- 19 related activities ....” SSR 16–3p, 2016 WL 1119029, at *4. Absent a finding that the 20 claimant is malingering, an ALJ must provide specific, clear and convincing reasons 21 before rejecting a claimant’s testimony about the severity of her symptoms. Trevizo 22 v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (citing Garrison v. Colvin, 759 F.3d 23 995, 1014-1015 (9th Cir. 2014)). “General findings [regarding a claimant’s 24 credibility] are insufficient; rather, the ALJ must identify what testimony is not 25 credible and what evidence undermines the claimant’s complaints.” Burrell v. Colvin, 26 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 27 Cir. 1995)). The ALJ’s findings “must be sufficiently specific to allow a reviewing 28 court to conclude the adjudicator rejected the claimant’s testimony on permissible 1 grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.” 2 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell v. 3 Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1991) (en banc)). 4 Factors an ALJ may consider in evaluating the claimant’s subjective symptoms 5 include conflicts between the claimant’s testimony and the claimant’s conduct – such 6 as daily activities, work record, or an unexplained failure to pursue or follow 7 treatment – as well as ordinary techniques of credibility evaluation, such as internal 8 contradictions in the claimant’s statements and testimony. See Ghanim v. Colvin, 763 9 F.3d 1154, 1163 (9th Cir. 2014). In addition, an ALJ may not disregard a claimant’s 10 testimony solely because it is not substantiated by objective medical evidence, 11 although the lack of medical evidence is a factor that the ALJ can consider in making 12 a credibility assessment. Burch v. Barnhart, 400 F.3d 676, 680-681 (9th Cir. 2005). 13 In discounting Plaintiff’s allegations and testimony concerning his symptoms, 14 the ALJ here found that Plaintiff’s “statements concerning the intensity, persistence 15 and limiting effects of these symptoms are not entirely consistent with the medical 16 evidence and other evidence in the record for the reasons explained in this decision.” 17 (AR 21.) The Ninth Circuit has observed that this is simply a boilerplate statement 18 that is routinely included in an ALJ’s decision “as an introduction to the ALJ’s 19 credibility determination” after which the ALJ “typically identify what parts of the 20 claimant’s testimony were not credible and why.” Treichler, 775 F.3d at 1103. 21 The ALJthen provided threemore specificgroundsforher adverse assessment 22 of Plaintiff’s subjective symptom evidence: (1) the claimant’s subjective statements 23 are inconsistent with – or not supported by – the objective medical evidence; (2) 24 “[t]he degree of claimant’s subjective complaints is not comparable to the frequency 25 or extent of the treatment sought by the claimant”; and (3) Plaintiff’s subjective 26 symptoms statements regarding significant pain are inconsistent with the evidence 27 28 1 that “he has been working at a construction site laying tiles” (AR 21.)2 The Court 2 assesses these three reasons below. 3 First, an ALJ may not rely solely on lack of objective evidence to support a 4 credibilitydetermination.See Burch, 400 F.3d at 681; Rollins v. Massanari, 261 F.3d 5 853, 856 (9th Cir. 2001). However, it is also true that a contradiction between a 6 claimant’s subjective complaints and specific medical evidence may constitute a 7 distinct basis for discountingthe claimant’s subjective symptom allegations.See Sills 8 v. Astrue, 2013 WL 782076, at *3 (C.D. Cal. Mar. 1, 2013) (“there is an analytical 9 difference between a lack of corroborating medical evidence and a contradiction 10 between subjective claims and existing medical evidence”) (citing Morgan v. 11 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999). Accordingly, 12 an ALJ may properly rely upon a contradiction between a claimant’s allegations and 13 the medical evidence in reaching a credibility determination. See Carmickle v. 14 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with 15 the medical record is a sufficient basis for rejecting the claimant’s subjective 16 testimony.”); Garcia v. Comm’r of Soc. Sec. Admin., 498 F. App’x 710, 711 (9th Cir. 17 2012) (claimant’s testimony properly discounted based on contradiction between that 18 testimony and his doctor). 19 Here, the ALJ’s decision does not clearly describe a contradiction with the 20 medical evidence – as opposed to a lack of support in the objective medical record. 21 Although the ALJ uses the word “inconsistent,” the decision does not cite medical 22 evidence that affirmatively contradicts Plaintiff’s subjective complaints and claims 23 of severe pain. Instead, the ALJ discusses Plaintiff alleged pain in his left foot and 24 leg. In discounting that pain, the ALJ focuses on the lack of objective medical 25 evidence regarding impairments of the left leg and points to a musculoskeletal 26 examination with “mild” findings and x-rays which were “all well” and showed “mild 27 2 This court can only review the ALJ’s articulated rationale. See, e.g., Barbato v. Comm’r of Soc. 28 1 degenerative changes.” (AR 21.) From this discussion by the ALJ, the Court 2 concludes that the first reason for the ALJ’s adverse credibility finding is based upon 3 the lack of supporting objective evidence – which by itself is legally insufficient 4 under Ninth Circuit law. See, e.g., Burch, 400 F.3d at 681 5 The ALJ’s second ground is that the degree of Plaintiff’s subjective symptoms 6 is allegedly “not comparable to the frequency or extent” of the treatment that he 7 received. (AR 21.) Although an ALJ may rely on conservative treatment (or lack of 8 treatment) as a valid reason for discounting subjective claims, it is undisputed here 9 that Plaintiff had multiple surgeries to address impairments and pain in his left foot. 10 Thus, not only did Plaintiff repeatedly seek medical treatment for his pain, but the 11 form of the treatment (multiple surgeries) provided to him was not conservative. See 12 Ritchotte v. Astrue, 281 F. App’x 757, 759 (9th Cir. 2008); Diaz v. Berryhill, 2018 13 WL 4998120, at *6 (C.D. Cal. Oct. 15, 2018) (collecting cases for the proposition 14 that “[s]urgery is generally not a ‘conservative’ treatment”). And the ALJ cited no 15 evidence that Plaintiff’s surgeries should be considered conservative. The 16 Commissioner acknowledges this, but points out that the ALJ also noted a post- 17 surgery record stating that Plaintiff’s surgical site was well healed and without 18 infection and another record indicating lack of swelling and a full range of motion in 19 Plaintiff’s extremities. (AR 21, citing AR1248 and 1370.) Those records may bolster 20 the ALJ’s point that Plaintiff’s subjective complaints lack support in the objective 21 record, but they are not evidence that the frequency and extent of Plaintiff’s surgical 22 treatment somehow undermine his claims of severe pain. 23 As a third ground, the ALJ states that Plaintiff’s assertion of severe pain is 24 contradicted by his work laying tiles during his alleged period of disability. The 25 ALJ’s decision cites three treatment records that mention the tile work (AR 21 citing 26 AR 1158, 1246, and 1318). While these documents refer to Plaintiff occasionally 27 doing work at a construction site, they also report that the increased weight bearing 28 from this activity caused Plaintiff to develop a new infection and that Plaintiff could 1 not tolerate the associated standing and walking due to the pain. Thus, when placed 2 in their proper context, Plaintiff’s short attempts at laying tile actually support his 3 statements of severe pain, see Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 4 2007), and the ALJ’s reference to this work is not a legitimate basis for discounting 5 Plaintiff’s subjective symptom claims because it fails to accurately characterize the 6 record. See Regennitter v. Comm’r of Soc.Sec.Admin.,166 F.3d 1294, 1297 (9th Cir. 7 1999). 8 Accordingly, for the above reasons, the Court concludes that the ALJ erred by 9 not providing a specific, clear and convincing reason for discounting Plaintiff’s 10 claims about the severity of his symptoms and pain. See Trevizo, 871 F.3d at 678. 11 REMEDY 12 Ninth Circuit case law “precludes a district court from remanding a case for an 13 award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 808 14 F.3d 403, 407 (9th Cir. 2016) (citations omitted). “The district court must first 15 determine that the ALJ made a legal error, such as failing to provide legally sufficient 16 reasons for rejecting evidence. . . . If the court finds such an error, it must next review 17 the record as a whole and determine whether it is fully developed, is free from 18 conflicts and ambiguities, and all essential factual issues have been resolved.” 19 Dominguez, 808 F.3d at 407 (citation and internal quotation marks omitted). 20 Although the Court has found error as discussed above, the record on the whole is 21 not fully developed, and factual issues remain outstanding. The issues concerning 22 Plaintiff’s alleged disability “should be resolved through further proceedings on an 23 open record before a proper disability determination can be made by the ALJ in the 24 first instance.” See Brown-Hunter, 806 F.3d at 496; see also Treichler, 775 F.3d at 25 1101 (remand for award of benefits is inappropriate where “there is conflicting 26 evidence, and not all essential factual issues have been resolved”) (citation omitted); 27 Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011) (same 28 where the record does not clearly demonstrate the claimant is disabled within the 1 || meaning of the Social Security Act). Accordingly, the appropriate remedy is a 2 || remand for further administrative proceedings.” 3 □□ * ok 4 IT IS ORDERED that Judgment be entered reversing the decision of the 5 | Commissioner of Social Security and remanding this matter for further 6 || administrative proceedings consistent with this opinion. 7 g | DATED: 1/28/2021 (Wy Ye é ° 9 as ALEXANDER F. MacKINNON 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 |! 5 i is not the Court’s intent to limit the scope of the remand.