1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GROYETO REPUYAN CUSTODIO, No. 2:23-cv-00307 AC 12 Plaintiff, 13 v. ORDER 14 MARTIN O’MALLEY, Commissioner of Social Security, 15 Defendant. 16

17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying his application for disability insurance benefits (“DIB”) under Title II 20 of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-34.1 For the reasons that follow, 21 plaintiff’s motion for summary judgment will be GRANTED, and defendant’s cross-motion for 22 summary judgment will be DENIED. The matter will be reversed and remanded to the 23 Commissioner for further proceedings. 24 I. PROCEDURAL BACKGROUND 25 Plaintiff applied for DIB on August 7, 2020. Administrative Record (“AR”) 171-72.2 The 26 1 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, and 27 who suffer from a mental or physical disability. 42 U.S.C. § 423(a)(1); Bowen v. City of New York, 476 U.S. 467, 470 (1986). 28 2 The AR is electronically filed at ECF No. 10. 1 disability onset date was alleged to be December 19, 2019. Id. The application was disapproved 2 initially and on reconsideration. AR 62-86. On September 28, 2021, ALJ Vincent Misenti 3 presided over the hearing on plaintiff’s challenge to the disapprovals. AR 35-49 (transcript). 4 Plaintiff, who appeared with counsel Jonathan Pena, was present at the hearing. AR 35-36. 5 Joseph Torres, a Vocational Expert (“VE”), also testified at the hearing. Id. 6 On October 27, 2021, the ALJ found plaintiff “not disabled” under Sections 216(i) and 7 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d). AR 21-30 (decision), 31-34 (exhibit 8 list). On August 26, 2022, the Appeals Council denied plaintiff’s request for review, leaving the 9 ALJ’s decision as the final decision of the Commissioner of Social Security. AR 7-9 (decision 10 and additional exhibit list). Plaintiff filed this action on February 17, 2023. ECF No. 1; see 42 11 U.S.C. § 405(g). The parties consented to the jurisdiction of the magistrate judge. ECF No. 9. 12 The parties’ cross-motions for summary judgment, based upon the Administrative Record filed by 13 the Commissioner, have been fully briefed. ECF Nos. 13 (plaintiff’s summary judgment motion), 14 15 (Commissioner’s summary judgment motion). 15 II. FACTUAL BACKGROUND 16 Plaintiff was born on in 1968, and accordingly was, at age 52, a person closely 17 approaching advanced age under the regulations, at the alleged disability onset date.3 AR 50. 18 Plaintiff alleged disability due to upper GI bleeding; regurgitation; chronic kidney disease; 19 heart problem; high blood pressure; gout, non-rheumatoid regurgitation, and kidney failure. Id. 20 Plaintiff has a high school education from the Philippines, and speaks some English, though he 21 used an interpreter at his disability hearing. AR 37-38. Plaintiff has past relevant work as an 22 automobile detailer. AR 46. 23 III. LEGAL STANDARDS 24 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 25 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 26 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 27 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews

28 3 See 20 C.F.R. § 404.1563(d) (“person closely approaching advanced age”). 1 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 2 Substantial evidence is “more than a mere scintilla,” but “may be less than a 3 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such 4 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 5 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the 6 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 7 suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). 8 Although this court cannot substitute its discretion for that of the Commissioner, the court 9 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 10 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 11 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 12 court must consider both evidence that supports and evidence that detracts from the ALJ’s 13 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 14 “The ALJ is responsible for determining credibility, resolving conflicts in medical 15 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 16 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 17 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 18 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 19 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 20 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 21 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 22 evidence that the ALJ did not discuss”). 23 The court will not reverse the Commissioner’s decision if it is based on harmless error, 24 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 25 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 26 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 1 IV. RELEVANT LAW 2 Disability Insurance Benefits and Supplemental Security Income are available for every 3 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) (DIB), 1381a (SSI). Plaintiff 4 is “disabled” if he is “‘unable to engage in substantial gainful activity due to a medically 5 determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 6 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). 7 The Commissioner uses a five-step sequential evaluation process to determine whether an 8 applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 9 Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation 10 process to determine disability” under Title II and Title XVI). The following summarizes the 11 sequential evaluation: 12 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 13 20 C.F.R. § 404.1520(a)(4)(i), (b). 14 Step two: Does the claimant have a “severe” impairment? If so, 15 proceed to step three. If not, the claimant is not disabled. 16 Id. §§ 404.1520(a)(4)(ii), (c). 17 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 18 Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. 19 Id. §§ 404.1520(a)(4)(iii), (d). 20 Step four: Does the claimant’s residual functional capacity make him 21 capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 22 Id. §§ 404.1520(a)(4)(iv), (e), (f). 23 Step five: Does the claimant have the residual functional capacity 24 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25 Id. §§ 404.1520(a)(4)(v), (g). 26 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation 28 process. 20 C.F.R. §§ 404.1512(a) (“In general, you have to prove to us that you are blind or 1 disabled”), 416.912(a) (same); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the 2 sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not 3 disabled and can engage in work that exists in significant numbers in the national economy.” Hill 4 v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. 5 V. THE ALJ’s DECISION 6 The ALJ made the following findings: 7 1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2024 (Exhibits 5D; 9D). 8 2. [Step 1] The claimant has not engaged in substantial gainful 9 activity since December 19, 2019, the alleged onset date (20 CFR 404.1571 et seq.) (Exhibits 2D-9D). 10 3. [Step 2] The claimant has the following severe impairments: 11 chronic kidney disease; chronic venous insufficiency; and valvular heart disease (20 CFR 404.1520(c)). 12 4. [Step 3] The claimant does not have an impairment or combination 13 of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 14 (20 CFR 404.1520(d), 404.1525 and 404.1526). 15 5. [Residual Functional Capacity (“RFC”)] After careful consideration of the entire record, the undersigned finds that the 16 claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can never 17 climb ladders or scaffolds. He can occasionally balance, stoop, kneel, crouch, crawl and climb ramps and stairs. The claimant can 18 never work at unprotected heights. He should avoid concentrated exposure to moving mechanical parts. 19 6. [Step 4] The claimant is unable to perform any past relevant work 20 (20 CFR 404.1565). 21 7. [Step 5] The claimant was born [in 1968] and was 51 years old, which is defined as an individual closely approaching advanced age, 22 on the alleged disability onset date (20 CFR 404.1563). 23 8. [Step 5, continued] The claimant has at least a high school education (20 CFR 404.1564). 24 9. [Step 5, continued] Transferability of job skills is not an issue in 25 this case because the claimant’s past relevant work is unskilled (20

CFR 404.1568).

26 10. [Step 5, continued] Considering the claimant’s age, education, 27 work experience, and residual functional capacity, there are job that exist in significant numbers in the national economy that the claimant 28 can perform (20 CFR 404.1569 and 404.1569(a). 1 11. The claimant has not been under a disability, as defined in the Social Security Act, from December 19, 2019, through the date of 2 this decision (20 CFR 404.1520(g)). 3 AR 23-30. As noted, the ALJ concluded that plaintiff was “not disabled” under Title II of the 4 Act. AR 30. 5 VI. ANALYSIS 6 Plaintiff alleges that the ALJ erred by failing (1) failing to include work-related limitations 7 in the RFC consistent with the nature and intensity of plaintiff’s limitations, and (2) failing to 8 offer legitimate reasons for rejecting plaintiff’s subjective testimony. ECF No. 13 at 3. 9 A. The ALJ Improperly Rejected Plaintiff’s Subjective Testimony 10 Plaintiff argues the ALJ improperly discredited his symptom testimony by 11 mischaracterizing the medical evidence, particularly as related to plaintiff’s kidney function. 12 Evaluating the credibility of a plaintiff’s subjective testimony is a two-step process. First, the 13 ALJ must “determine whether the claimant has presented objective medical evidence of an 14 underlying impairment which could reasonably be expected to produce the pain or other 15 symptoms alleged. . . . In this analysis, the claimant is not required to show that her impairment 16 could reasonably be expected to cause the severity of the symptom she has alleged; she need only 17 show that it could reasonably have caused some degree of the symptom.” Garrison v. Colvin, 759 18 F.3d 995, 1014 (9th Cir. 2014) (internal citations omitted). Objective medical evidence of the 19 pain or fatigue itself is not required. Id. (internal citations omitted). Second, if the ALJ does not 20 find evidence of malingering, the ALJ may only reject the claimant’s testimony by offering 21 “specific, clear and convincing reasons for doing so.” Id. (internal citations omitted). The Ninth 22 Circuit has “repeatedly warned that ALJs must be especially cautious in concluding that daily 23 activities are inconsistent with testimony about pain, because impairments that would 24 unquestionably preclude work and all the pressures of a workplace environment will often be 25 consistent with doing more than merely resting in bed all day.” Id. at 1016. 26 Here, plaintiff reported that he was unable to work because he had a fast heartbeat and 27 weak kidney function, which made him tired. AR 25, 41. He testified that he had shortness of 28 breath, sometimes four days a week. Id. Though he testified further that though he was not yet 1 receiving dialysis, plaintiff said that he was taking medications for his kidney disease. AR 25, 42. 2 Plaintiff testified that he could lift three pounds, sit for about 20 minutes, stand or about 15 3 minutes, and walk up to one block. AR 25, 43. Plaintiff testified that he could do minimal 4 household chores including wash dishes, sweep, and cook, and he could do laundry with a friend. 5 Id. Plaintiff testified that he rested eight hours during the day. AR 25, 45. 6 The ALJ found that while the medically determinable impairments could reasonably be 7 expected to cause the alleged symptoms, the statements concerning intensity, persistence, and 8 limiting effects of the symptoms was not entirely consistent with the medical record, which 9 reflects mild findings and improvement of symptoms with treatment. AR 25. With respect to 10 plaintiff’s kidney disease, the ALJ noted that “[i]n preparation for dialysis, the claimant 11 underwent an arteriovenous fistula utilizing the cephalic vein in the left arm.” AR 25, 524. The 12 ALJ stated that the records indicated that while plaintiff’s creatinine levels remained elevated, 13 they continued to decrease. AR 25 (citing AR 540, 693, 696, 783). 14 The court agrees with plaintiff that these records are mischaracterized as demonstrating 15 improvement and stability. For example, where the ALJ states that “treatment notes indicated 16 that there was no need for renal replacement therapy at this point of time” (AR 25), the record 17 cited reads “No need for emergent renal replacement therapy at this time but patient will need in 18 the near future.” AR 540 (emphasis added). The records also show that plaintiff’s kidney levels 19 continued to rise overall, not fall as the ALJ indicates. Prior to the alleged onset date, in 20 September 2019, plaintiff’s creatine level was 3.7, in January 2020 it was 3.8, in September 2020 21 it was 4.4, in November 2020 it was 5.0 and in December 2020, in was 4.6. AR 540. While an 22 ALJ may rely on medical records to discredit a plaintiff’s testimony, the ALJ’s rationale 23 necessarily lacks the power to convince when the medical records are not accurately reflected by 24 the ALJ’s summary of them. See Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). 25 The ALJ also referenced plaintiff’s activities of daily living as a basis for discrediting his 26 subjective testimony. Specifically, the ALJ cited plaintiff’s activities of taking the bus, riding his 27 bike to get groceries, shopping three times per week, performing chores and going to the park 28 with friends. AR 26. The court agrees with plaintiff that the ALJ failed to explain how the ability 1 to perform such activities equates to the ability to perform light work, or even sedentary work. 2 The Ninth Circuit has held that “if a claimant ‘is able to spend a substantial part of his day 3 engaged in pursuits involving the performance of physical functions that are transferable to a 4 work setting, a specific finding as to this fact may be sufficient to discredit a claimant’s 5 allegations.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (alteration in original) 6 (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)). However, 7 “[o]ne does not need to be ‘utterly incapacitated’ in order to be disabled.” Id. (quoting Fair v. 8 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)) (finding that activities such as walking in the mall and 9 swimming are not necessarily transferable to the work setting regarding the impact of pain as a 10 claimant may do these activities despite pain for therapeutic reasons). Here, the ALJ provides no 11 explanation as to how plaintiff’s very minimal activities transfer to an ability to sustain even 12 sedentary employment. Thus, the ALJ failed to support his decision to discredit plaintiff’s 13 subjective testimony on this basis. Because the ALJ did not provide clear and convincing reasons 14 for discrediting plaintiff’s subjective testimony, remand is necessary. 15 B. The ALJ’s Unexplained Failurto Include Leg Elevation Limitations in the RFC 16 Plaintiff makes an argument embedded within his argument regarding the subjective 17 testimony, but which is somewhat distinct: that the ALJ erred by failing to address plaintiff’s 18 allegations and documented need for leg elevation in the RFC. ECF No. 13 at 13-14. 19 Specifically, “Plaintiff asserts that the ALJ failed to provide any rationale for rejecting Plaintiff’s 20 symptoms as they pertain to the venous insufficiency and need to elevate the legs, contrary to 21 law.” ECF No. 13 at 13. However, plaintiff does not cite to any specific statements in the record 22 in which he spoke clearly to the need to elevate his legs or to symptoms related to his venous 23 insufficiency. Id. A review of plaintiff’s hearing testimony reveals no allegations regarding the 24 need for leg elevation. AR 39-45. The court finds the argument underdeveloped and not 25 indicative of error. 26 C. Remand 27 The undersigned agrees with plaintiff that the ALJ’s error in rejecting his subjective 28 testimony regarding his limitations related to kidney disease is harmful and remand for further 1 || proceedings by the Commissioner is necessary. An error is harmful when it has some 2 || consequence on the ultimate non-disability determination. Stout v. Comm’r, Soc. Sec. Admin., 3 || 454 F.3d 1050, 1055 (9th Cir. 2006). The ALJ’s error in this matter was harmful; plaintiff's 4 || subjective testimony, properly considered, may very well result in a more restrictive residual 5 || functional capacity assessment, which may in turn alter the finding of non-disability. 6 It is for the ALJ to determine in the first instance whether plaintiff has severe impairments 7 | and, ultimately, whether he is disabled under the Act. See Marsh v. Colvin, 792 F.3d 1170, 1173 8 | (9th Cir. 2015) (“the decision on disability rests with the ALJ and the Commissioner of the Social 9 || Security Administration in the first instance, not with a district court”). “Remand for further 10 || administrative proceedings is appropriate if enhancement of the record would be useful.” 11 | Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Here, the ALJ failed to properly 12 || consider plaintiffs testimony regarding his limitations related to his kidney disease. Further 13 || development of the record consistent with this order is necessary, and remand for further 14 || proceedings is the appropriate remedy. 15 VI. CONCLUSION 16 For the reasons set forth above, IT IS HEREBY ORDERED that: 17 1. Plaintiffs motion for summary judgment (ECF No. 13), is GRANTED; 18 2. The Commissioner’s cross-motion for summary judgment (ECF No. 15), is DENIED; 19 3. This matter is REMANDED to the Commissioner for further consideration consistent 20 | with this order; and 21 4. The Clerk of the Court shall enter judgment for plaintiff, and close this case. 22 || DATED: February 20, 2024 ~ 23 Htttenr— Lhor—e_

ALLISON CLAIRE

24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28