1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL ALEN ROGERS, Case No. 2:22-cv-00873-JDP (SS) 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security 15 Defendant. 16 17 Plaintiff challenges the final decision of the Commissioner of Social Security 18 (“Commissioner”) denying his applications for a period of disability, disability insurance benefits 19 (“DIB”), and supplemental security income (“SSI”) under Titles II and XVI of the Social Security 20 Act. Both parties have moved for summary judgment. ECF Nos. 15 & 19. For the reasons 21 discussed below, the court grants plaintiff’s motion, denies the Commissioner’s motion, and 22 remands this matter for further proceedings. 23 Standard of Review 24 An Administrative Law Judge’s (“ALJ”) decision denying an application for disability 25 benefits will be upheld if it is supported by substantial evidence in the record and if the correct 26 legal standards have been applied. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th 27 Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but less than a 28 preponderance; it is such relevant evidence as a reasonable person might accept as adequate to 1 support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).

2 “The ALJ is responsible for determining credibility, resolving conflicts in medical

3 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001)

4 (citations omitted). “Where the evidence is susceptible to more than one rational interpretation,

5 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v.

6 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court will not affirm on grounds upon

7 which the ALJ did not rely. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are

8 constrained to review the reasons the ALJ asserts.”).

9 A five-step sequential evaluation process is used in assessing eligibility for Social Security

10 disability benefits. Under this process the ALJ is required to determine: (1) whether the claimant

11 is engaged in substantial gainful activity; (2) whether the claiman t has a medical impairment (or 12 combination of impairments) that qualifies as severe; (3) whether any of the claimant’s 13 impairments meet or medically equal the severity of one of the impairments in 20 C.F.R., Pt. 404, 14 Subpt. P, App. 1; (4) whether the claimant can perform past relevant work; and (5) whether the 15 claimant can perform other specified types of work. See Barnes v. Berryhill, 895 F.3d 702, 704 16 n.3 (9th Cir. 2018). The claimant bears the burden of proof for the first four steps of the inquiry, 17 while the Commissioner bears the burden at the final step. Bustamante v. Massanari, 262 F.3d 18 949, 953-54 (9th Cir. 2001). 19 Background 20 Plaintiff filed applications for a period of disability, DIB, and SSI, alleging disability 21 beginning September 1, 2019. Administrative Record (“AR”) 234-47. After his applications were 22 denied initially and upon reconsideration, plaintiff appeared and testified at a hearing before an 23 Administrative Law Judge (“ALJ”). AR 55-91, 174-82, 185-94. On August 4, 2021, the ALJ 24 issued a decision finding that plaintiff was not disabled. AR 15-30. Specifically, the ALJ found:

25 1. The claimant meets the insured status requirements of the Social 26 Security Act through June 30, 2021.

27 2. The claimant has not engaged in substantial gainful activity since September 1, 2019, the alleged onset date. 28 1 * * * 2 3. The claimant has the following severe impairments: ulcerative 3 colitis, major depressive disorder, and unspecified anxiety

4 disorder.

5 * * *

6 4. The claimant does not have an impairment or combination of 7 impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.

8 * * * 9 5. After careful consideration of the entire record, I find that the 10 claimant has the residual functional capacity to perform light work 11 as defined in 20 CFR 404.1567(b) and 416.967(b) except he can frequently climb ramps and stairs and occasionally climb ladders, 12 ropes, or scaffolds. He can frequently stoop, kneel, crouch, and crawl. He can understand, remember, and carry out simple and 13 some detailed tasks. He can maintain concentration, persistence and pace for short and simple tasks. He can adapt appropriately to 14 routine changes in the work setting that occur no more than 15 occasionally. He requires up to four unscheduled bathroom breaks, lasting up to five minutes each, in addition to regularly 16 scheduled breaks.

17 * * *

18 6. The claimant is unable to perform any past relevant work. 19 * * * 20 7. The claimant was born [in] 1997 and was 22 years old, which is 21 defined as a younger individual age 18-49, on the alleged disability onset date. 22

23 8. The claimant has at least a high school education.

24 9. Transferability of job skills is not an issue in this case because the claimant’s past relevant work is unskilled. 25

10. Considering the claimant’s age, education, work experience, and 26 residual functional capacity, there are jobs that exist in significant 27 numbers in the national economy that the claimant can perform.

28 * * * 1 11. The claimant has not been under a disability, as defined in the 2 Social Security Act, from September 1, 2019, through the date of this decision. 3

4 AR 934-47 (citations to the code of regulations omitted).

5 Plaintiff requested review by the Appeals Council, which denied the request. AR 1-5.

6 Plaintiff now seeks judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3).

7 Analysis

8 Plaintiff’s sole argument is that the ALJ improperly discounted his subjective symptom

9 testimony without providing clear and convincing reasons for doing so. ECF No. 15 at 10-17.

10 The court agrees and finds that remand for further proceedings is appropriate.

11 In the Ninth Circuit, courts follow a “two-step analysis for determining the extent to which 12 a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th 13 Cir. 2017). “‘First, the ALJ must determine whether the claimant has presented objective medical 14 evidence of an underlying impairment which could reasonably be expected to produce the pain or 15 other symptoms alleged.’” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 16 2014)). If the claimant meets this requirement, the ALJ can reject his symptom testimony only by 17 offering specific, clear, and convincing reasons for doing so. Id. “This is not an easy requirement 18 to meet: the clear and convincing standard is the most demanding required in Social Security 19 cases.” Id. The ALJ’s reasons must also be supported by substantial evidence in the record. 20 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 21 At the hearing, plaintiff testified that, due to his ulcerative colitis, he frequently uses the 22 restroom and has had accidents when being too far away from a bathroom. AR 68. Plaintiff 23 reported that Entyvio infusion treatment, which he received for nine months starting in November 24 2020, provided some improvement with bowel control and the need to urgently use the bathroom. 25 AR 73. However, he explained that “it did not help much at all with the pain” or “the frequency 26 of . . . bathroom visits.” AR 74. Plaintiff also testified that even with infusion treatment, he still 27 needed to use the restroom at least six times a day, AR 79, and that he was unable to predict when 28 he will need to use the restroom. AR 82. 1 In a functional report, plaintiff stated that all physical activity causes pain and increases

2 the frequency of his need to use the restroom. AR 292. He reported that, notwithstanding his

3 pain, he can prepare simple meals, perform household chores, and lift twenty to thirty pounds.

4 AR 294, 297.

5 In her decision, the ALJ offered three reasons for discounting plaintiff’s testimony: (1)

6 plaintiff’s treatment symptoms improved with conservative treatment; (2) his subjective

7 complaints were inconsistent with his reported daily activities; and (3) his testimony was entirely

8 consistent with the medical evidence. AR 23-25.

9 The ALJ’s first reason—that plaintiff improved with conservative treatment—does not

10 support her adverse credibility determination. As an initial matter, plaintiff’s correctly argues that

11 plaintiff’s treatment—which included Entyvio infusions and presc riptions for steroids, muscle 12 relaxers, and anti-nausea and narcotic pain medication, see AR 359, 400, 429, 488, 724—cannot 13 fairly be characterized as conservative, see M.E. v. Kijakazi, No. 2:20-cv-09710-SJK, 2022 WL 14 1634869, at *7-8 (C.D. Cal. Mar. 23, 2022) (finding that monthly intravenous infusions, in 15 conjunction with other medications, “does not appear to be conservative or routine . . . .”). The 16 Commissioner does not dispute that the ALJ mischaracterized plaintiff’s treatment as 17 conservative. Nevertheless, she argues that “[e]ven if the ALJ chose the wrong word to describe 18 that treatment, Plaintiff does not dispute that his treatment was effective.” ECF No. 19 at 7 19 (emphasis in original).1 20 In her decision, the ALJ repeatedly stated that plaintiff’s symptoms improved with 21 Entyvio infusions. AR 23-25. Plaintiff’s medical records, however, provide scant support for 22 that conclusion. For instance, a January 2021 treatment note states that plaintiff had started 23 receiving infusions and that his ulcerative colitis “was controlled with Entyvio.” AR 785. A 24 March 2021 treatment note similarly indicate that “Entyvio helped.” AR 396. Like the earlier 25

1 The ALJ also noted that at the time of the hearing, plaintiff was only taking anti-nausea 26 medication. That finding, although true, does not accurately reflect plaintiff’s treatment or 27 support a finding that plaintiff’s ulcerative colitis was managed with conservative care. At the hearing, plaintiff explained that he had recently moved and was in the process of establishing care 28 with a new gastroenterologist. 1 treatment note, this record does not specify how, or the degree to which, plaintiff’s symptoms

2 improved. However, records from April 6, 2021, show that plaintiff, despite experiencing some

3 improvement, continued to experience intermittent abdominal pain, nausea, vomiting, diarrhea,

4 constipation, and bloody stools. AR 773. This record—the only one describing plaintiff’s

5 improvement and continued symptoms—indicates that while Entyvio provided some benefit,

6 plaintiff’s symptoms were not effectively controlled by that treatment.

7 The ALJ’s second reason—that plaintiff’s daily activities were inconsistent with his

8 reported limitations—is not supported by substantial evidence. As observed by the ALJ, plaintiff

9 was able to “care for his personal needs, do household chores, prepare simple meals, drive,

10 grocery shop, play video and card games, care for his dog, and count change.” AR 25. The ALJ,

11 however, does not explain how plaintiff’s testimony is inconsisten t with his ability to perform 12 these limited activities. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (holding 13 that ALJs “must set forth the reasoning behind [their] decisions in a way that allows for 14 meaningful review”); see also Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008) (holding that an 15 ALJ is required to “provide an ‘accurate and logical bridge’ between the evidence and the 16 conclusion that the claimant is not disabled” to allow for meaningful judicial review); cf. 17 Garrison, 759 F.3d at 1016 (“We have repeatedly warned that ALJs must be especially cautious 18 in concluding that daily activities are inconsistent with testimony about pain, because 19 impairments that would unquestionably preclude work and all the pressures of a workplace 20 environment will often be consistent with doing more than merely resting in bed all day.”). 21 The ALJ’s remaining reason for discounting plaintiff’s subjective testimony, 22 inconsistency with the medical evidence, cannot alone support the rejection of plaintiff’s 23 subjective complaints. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); 20 C.F.R. 24 § 404.1529(c)(2) (“[W]e will not reject your statements about the intensity and persistence of 25 your pain or other symptoms or about the effect our symptoms have on your ability to work solely 26 because the available objective medical evidence does not substantiate your statements.”); Moisa 27 v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (“[A]n ALJ may not reject a claimant’s subjective 28 complaints based solely on a lack of objective medical evidence to fully corroborate the alleged 1 | severity of pain.”). 2 Accordingly, the ALJ erred in rejecting plaintiff's testimony about his symptoms. The 3 | matter must therefore be remanded for further consideration. Dominguez v. Colvin, 808 F.3d 403, 4 | 407 (9th Cir. 2015) (‘A district court may reverse the decision of the Commissioner of Social 5 | Security, with or without remanding the case for a rehearing, but the proper course, except in rare 6 | circumstances, is to remand to the agency for additional investigation or explanation.”) (internal 7 | quotes and citations omitted); Treichler v. Comm of Social Sec., 775 F.3d 1090, 1105 (9th Cir. 8 | 2014) (“Where ...an ALJ makes a legal error, but the record is uncertain and ambiguous, the 9 || proper approach is to remand the case to the agency.”). 10 Accordingly, it is hereby ORDERED that: 11 1. Plaintiffs motion for summary judgment, ECF No. 15, is granted. 12 2. The Commissioner’s cross-motion for summary judgment, ECF No. 19, is denied. 13 3. The matter is remanded for further proceedings consistent with this order. 14 4. The Clerk of Court is directed to enter judgment in plaintiff’s favor. 15 16 IT IS SO ORDERED. 17 ( 1 Sy — Dated: _ September 26, 2023 Q_-——— 18 JEREMY D. PETERSON 19 UNITED STATES MAGISTRATE JUDGE

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