1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KOW NAI S., Case No. 19-cv-04396-DMR

8 Plaintiff,

ORDER ON CROSS MOTIONS FOR

9 v. SUMMARY JUDGMENT

10 ANDREW M. SAUL, Re: Dkt. Nos. 21-23 11 Defendant.

12 Plaintiff Kow Nai S. moves for summary judgment to reverse the Commissioner of the 13 Social Security Administration’s (the “Commissioner’s”) final administrative decision, which 14 found him not disabled and therefore denied his application for benefits under Title II of the Social 15 Security Act, 42 U.S.C. § 401 et seq. [Docket No. 21.] The Commissioner cross-moves to affirm. 16 [Docket No. 22.] For the reasons stated below, the court grants Plaintiff’s motion in part and 17 remands this action for further proceedings. 18 I. PROCEDURAL HISTORY 19 Plaintiff filed an application for Social Security Disability Insurance (“SSDI”) benefits on 20 September 14, 2015, alleging disability beginning October 2, 2012. Administrative Record 21 (“AR”) 161-63. An Administrative Law Judge (“ALJ”) held a hearing and issued an unfavorable decision on August 17, 2018. AR 12-25. The ALJ found that Plaintiff has the following severe 22 impairments: bilateral arthritis of the knees and shoulders; right shoulder arthroscopy; disorders of 23 the lumbar spine; right carpal tunnel syndrome; status-post right carpal tunnel release; and right 24 wrist arthroscopy. A.R. 17. The ALJ determined that Plaintiff has the following residual 25 functional capacity (“RFC”): 26

[T]he claimant could lift or carry 20 pounds occasionally and 10 27 pounds frequently. The claimant was able to stand or walk 1 hour at The claimant was able to sit for 1 hour at a time for a total of 6 hours 1 in an 8-hour workday, but would need to be able to shift positions or stand up every hour at his workstation, for 5 minutes, while remaining 2 on task. The claimant could occasionally climb ladders, ropes or scaffolds. The claimant could frequently balance, stoop, kneel, 3 crouch or crawl. The claimant could frequently reach overhead bilaterally. The claimant could frequently handle, finger and feel, but 4 could not do so continuously [repetitively] for more than 1 hour without a 5 minute break. 5

A.R. 20.

6 Relying on the opinion of a vocational expert (“VE”), the ALJ concluded that Plaintiff is 7 able to perform his past work as jewelry preparer, as the job is generally performed. Therefore, 8 the ALJ concluded that Plaintiff is not disabled. A.R. 24-25. 9 After the Appeals Council denied review, Plaintiff sought review in this court. [Docket 10 No. 1.] 11

II. ISSUES FOR REVIEW

12 1. Did the ALJ err in determining that Plaintiff can perform his past relevant work as 13 a jewelry preparer? 14 2. Did the ALJ err in evaluating Plaintiff’s credibility? 15

III. STANDARD OF REVIEW

16 Pursuant to 42 U.S.C. § 405(g), the district court has the authority to review a decision by 17 the Commissioner denying a claimant disability benefits. “This court may set aside the 18 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 19 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 20 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 21 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 22 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a 23 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir.1996) (internal citation omitted). 24 When performing this analysis, the court must “consider the entire record as a whole and may not 25 affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. 26 Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citation and quotation marks omitted). 27 If the evidence reasonably could support two conclusions, the court “may not substitute its 1 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s 2 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 3 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 4 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 5 IV. DISCUSSION 6 A. The ALJ’s Determination that Plaintiff is Able to Perform His Past Relevant Work 7 Plaintiff argues that the ALJ’s determination at step four that he is able to perform his past 8 work as a jewelry preparer, as that occupation is generally performed, is not supported by 9 substantial evidence. 10 1. Legal Standard 11 At the fourth step of the sequential evaluation, the ALJ considers the assessment of the 12 claimant’s RFC and age, education, and work experience to see if the claimant’s impairment 13 prevents the claimant from doing his or her past relevant work. If the claimant is able to perform 14 past relevant work, the ALJ will find that the claimant is not disabled. 20 C.F.R. § 15 416.920(a)(4)(iv); 20 C.F.R. § 404.1520(f). If the claimant cannot perform past relevant work, the 16 analysis proceeds. At the fifth step, the ALJ considers whether the claimant can make an 17 adjustment to other work. If the claimant cannot make an adjustment to other work, the ALJ will 18 find that the claimant is disabled. If the claimant can make an adjustment to other work, the ALJ 19 will find that the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(v); 20 C.F.R. § 404.1520(g); 20 Tackett, 180 F.3d at 1098-99. Should the ALJ decide that the claimant is not disabled, “the [SSA] 21 is responsible for providing evidence that demonstrates that other work exists in significant 22 numbers in the national economy that [the claimant] can do, given [his RFC] and vocational 23 factors.” 20 C.F.R. § 416.960(c)(2). 24 Social Security Ruling (“SSR”) 00-4p governs the use of occupational evidence.1 At steps 25 26 1 SSRs “are entitled to ‘some deference’ as long as they are consistent with the Social Security Act 27 and regulations.” Massachi v. Astrue, 486 F.3d 1149, 1152, n.6 (9th Cir. 2006) (citations 1 four and five of the sequential evaluation, ALJs rely on the DOT, including its companion 2 publication, the Selected Characteristics of Occupations Defined in the Revised Dictionary of 3 Occupational Titles (“SCO”), and testimony from vocational experts in making disability 4 determinations. SSR 00-4p, 2000 WL 1898704 at *2 (S.S.A. Dec. 4, 2000). The DOT is a 5 reference guide in the form of a job catalog that contains standardized occupational information 6 about each occupation. An ALJ is to “rely primarily on the DOT (including its companion 7 publication, the SCO) for information about the requirements of work in the national economy.” 8 Id. An ALJ may also call upon a VE to provide occupational evidence through testimony at a 9 disability benefits hearing. Id. As part of a disability determination, an ALJ must address any 10 conflicts between the VE’s testimony and information contained in the DOT. Id. at *1. The ALJ 11 has an “affirmative responsibility to ask about any possible conflict between [the VE’s testimony 12 about the requirements of a job] and information provided in the DOT.” Id. at *4. 13 2. Analysis 14 Relying on the VE’s testimony, the ALJ found that Plaintiff is able to perform his past 15 work as a jewelry preparer, DOT 700.687-062, as the work is generally performed. A.R. 24. 16 Plaintiff argues that this finding is not supported by substantial evidence because the VE’s 17 testimony that he can perform this occupation conflicts with the DOT. Specifically, the VE 18 testified that an individual with Plaintiff’s RFC, including the ability to “[s]it an hour at a time for 19 six hours in [an] eight-hour workday, but [who] would need to be able to shift positions or stand 20 up every hour at his workstation for five minutes while remaining on task,” could perform the 21 occupation of jewelry preparer as generally performed. A.R. 71. Plaintiff argues that this testimony conflicts with the DOT, which classifies the occupation of jewelry preparer as 22 “Sedentary Work,” 700.687-062 PREPARER, DICOT 700.687-062, because the SSA defines 23 sedentary work as generally requiring a person to remain in a seated position for uninterrupted 24 two-hour intervals. Here, the ALJ found that Plaintiff is not able to remain seated for 25 uninterrupted two-hour intervals, and must be able to stand for 5 minutes after every hour of 26 sitting. Therefore, Plaintiff argues, he is unable to perform his sedentary past relevant work. 27 1 generally requiring a person to remain in a seated position for uninterrupted two-hour intervals. 2 First, SSR 96-9p states in relevant part that “[i]n order to perform a full range of sedentary work, 3 an individual must be able to remain in a seated position for approximately 6 hours of an 8-hour 4 workday, with a morning break, a lunch period, and an afternoon break at approximately 2-hour 5 intervals.” Titles II & XVI: Determining Capability to Do Other Work-Implications of A Residual 6 Functional Capacity for Less Than A Full Range of Sedentary Work, SSR 96-9P, at *6 (S.S.A. 7 July 2, 1996). According to the SSA, “[i]f an individual is unable to sit for a total of 6 hours in an 8 8-hour work day, the unskilled sedentary occupational base will be eroded.” Id. Further, if an individual’s need to alternate the required sitting of sedentary work by standing “cannot be 9 accommodated by scheduled breaks and a lunch period, the occupational base for a full range of 10 unskilled sedentary work will be eroded.” Id. at *7. 11 Plaintiff also cites SSR 83-12, which explains that a need to alternate sitting and standing 12 may result in an inability to do prolonged sitting: 13

In some disability claims, the medical facts lead to an assessment of 14 RFC which is compatible with the performance of either sedentary or light work except that the person must alternate periods of sitting and 15 standing. The individual may be able to sit for a time, but must then get up and stand or walk for awhile before returning to sitting. Such 16 an individual is not functionally capable of doing . . . the prolonged sitting contemplated in the definition of sedentary work . . . . most 17 jobs have ongoing work processes which demand that a worker be in a certain place or posture for at least a certain length of time to 18 accomplish a certain task. Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will. In 19 cases of unusual limitation of ability to sit or stand, a [vocational specialist] should be consulted to clarify the implications for the 20 occupational base. 21 Titles II & XVI: Capability to Do Other Work-The Medical-Vocational Rules As A Framework for 22 Evaluating Exertional Limitations Within A Range of Work or Between Ranges of Work, SSR 83- 23 12, at *4 (S.S.A. 1983). 24 According to Plaintiff, because the ALJ determined that he is unable to sit for 25 uninterrupted two-hour individuals and needs to be able to shift positions or stand for five minutes 26 every hour, he is unable to perform any sedentary occupation, including his past relevant work. 27 The court finds that the ALJ did not err at step four because the DOT is silent as to the 1 the occupation is classified as “Sedentary Work,” and states that the occupation “involves sitting 2 most of the time, but may involve walking or standing for brief periods of time.” 700.687-062 3 PREPARER, DICOT 700.687-062. Contrary to Plaintiff’s suggestion, the DOT does not provide 4 that an individual performing the occupation must be able to remain seated for two-hour intervals. 5 The Ninth Circuit has held that there is no conflict between a VE’s testimony and the DOT where 6 the DOT is silent on the subject in question; here, the need to shift positions or stand every hour 7 for five minutes. See Dewey v. Colvin, 650 Fed. Appx. 512, 514 (9th Cir. 2016) (finding that 8 because the DOT was silent on whether the jobs in question allow for a sit/stand option, there was no conflict between DOT and VE’s testimony that claimant could perform jobs even though he 9 required a sit/stand option and use of a cane to ambulate); see also McDaniel v. Colvin, No. 5:16- 10 cv-00869, 2017 WL 1399629, at *4-5 (C.D. Cal. Apr. 18, 2017) (collecting cases). 11 The ALJ asked about a hypothetical individual’s need to shift positions or stand for five 12 minutes of every hour, and the VE testified that such an individual could perform the work of 13 “jewelry preparer as generally performed, and not as actually performed.” A.R. 70-71. He also 14 asked the VE to identify any inconsistency between her testimony and the DOT and she identified 15 none. See A.R. 69. This testimony properly provided substantial evidence to support the step four 16 finding that Plaintiff is able to perform his past relevant work as a jewelry preparer, as that 17 occupation is generally performed. 18 B. The ALJ’s Credibility Determination 19 Plaintiff next argues that the ALJ erred in assessing his credibility. 20 1. Legal Standard 21 In general, credibility determinations are the province of the ALJ. “It is the ALJ’s role to 22 resolve evidentiary conflicts. If there is more than one rational interpretation of the evidence, the 23 ALJ’s conclusion must be upheld.” Allen v. Sec’y of Health & Human Servs., 726 F.2d 1470, 24 1473 (9th Cir. 1984) (citations omitted). An ALJ is not “required to believe every allegation of 25 disabling pain” or other nonexertional impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th 26 Cir.1989) (citing 42 U.S.C. § 423(d)(5)(A)). However, if an ALJ discredits a claimant’s 27 subjective symptom testimony, the ALJ must articulate specific reasons for doing so. Greger v. 1 Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). In evaluating a claimant’s credibility, the ALJ 2 cannot rely on general findings, but “must specifically identify what testimony is credible and 3 what evidence undermines the claimant’s complaints.” Id. at 972 (quotations omitted); see also 4 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (stating that an ALJ must articulate 5 reasons that are “sufficiently specific to permit the court to conclude that the ALJ did not 6 arbitrarily discredit claimant’s testimony”). The ALJ may consider “ordinary techniques of 7 credibility evaluation,” including the claimant’s reputation for truthfulness and inconsistencies in 8 testimony, and may also consider a claimant’s daily activities, and “unexplained or inadequately 9 explained failure to seek treatment or to follow a prescribed course of treatment.” Smolen v. 10 Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 11 The determination of whether or not to accept a claimant’s testimony regarding subjective 12 symptoms requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929; Smolen, 80 F.3d at 1281 13 (citations omitted). First, the ALJ must determine whether or not there is a medically 14 determinable impairment that reasonably could be expected to cause the claimant’s symptoms. 20 15 C.F.R. §§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82. Once a claimant produces 16 medical evidence of an underlying impairment, the ALJ may not discredit the claimant’s 17 testimony as to the severity of symptoms “based solely on a lack of objective medical evidence to 18 fully corroborate the alleged severity of” the symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 19 (9th Cir. 1991) (en banc) (citation omitted). Absent affirmative evidence that the claimant is 20 malingering, the ALJ must provide “specific, clear and convincing” reasons for rejecting the 21 claimant’s testimony. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The Ninth Circuit 22 has reaffirmed the “specific, clear and convincing” standard applicable to review of an ALJ’s 23 decision to reject a claimant’s testimony. See Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 24 2014). 25 2. Analysis 26 The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be 27 expected to cause the alleged symptoms; however, [his] statements concerning the intensity, 1 evidence and other evidence in the record for the reasons explained in this decision.” A.R. 21. 2 The ALJ provided two reasons for discounting Plaintiff’s testimony: 1) that Plaintiff’s 3 “statements regarding the limiting effects of his physical impairments were not fully consistent 4 with his activities of daily living and his presentation” and 2) that his allegations “were not fully 5 consistent with and supported by the evidence of record.” A.R. 21. 6 As to the first reason, the ALJ wrote that “[d]espite reporting problems with his back, 7 upper extremities, and lower extremities,” Plaintiff is able to shower, prepare simple meals, drive 8 short distances, and pick up his daughter from work and pick up his grandson from school. A.R. 9 21. This is not a “specific, clear and convincing” reason for rejecting Plaintiff’s testimony. See 10 Vasquez, 572 F.3d at 591. The Ninth Circuit has instructed that “daily activities may be grounds 11 for an adverse credibility finding if a claimant is able to spend a substantial part of his day 12 engaged in pursuits involving the performance of physical functions that are transferable to a work 13 setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quotation omitted). However, “the 14 ALJ must make specific findings relating to [the daily] activities and their transferability to 15 conclude that a claimant’s daily activities warrant an adverse credibility determination.” Id. 16 (quotation omitted). The ALJ did not make any such findings in his opinion. Moreover, the ALJ 17 disregarded Plaintiff’s testimony about the limits of his abilities to perform some of the activities 18 described by the ALJ. For example, Plaintiff testified that when he showers in the morning, his 19 feet go numb in the shower. A.R. 66. When he described driving to pick up his daughter and 20 grandson, he explained that it takes him a combined total of nine minutes of driving to pick them 21 up. A.R. 66-67 (explaining that his grandson’s school is a five minute drive from home and his 22 daughter’s workplace is a four-minute drive from the school). The ALJ did not discuss Plaintiff’s 23 testimony that when he feels pain in his wrist, he cannot use chopsticks or utensils and instead 24 grabs food with his hand. A.R. 60-61. He also did not address Plaintiff’s testimony that he is not 25 able to lift change off of a flat surface, and instead just scrapes it with his left hand into the palm 26 of his right hand. A.R. 61. 27 The ALJ’s second reason for discounting Plaintiff’s credibility was that the “evidence of 1 “indicates relatively stable symptoms” that “have been relatively controlled with sporadic medical 2 treatment,” which “suggests that his symptoms were not as severe as alleged[.]” A.R. 21. The 3 ALJ then discussed the medical evidence in the record, including evidence of surgery on 4 Plaintiff’s shoulders and right wrist, and observed that Plaintiff’s pain is managed with ibuprofen 5 and other over-the-counter pain medications. He concluded that Plaintiff did not receive 6 “consistent aggressive medical treatment” following these procedures. A.R. 21-22. The ALJ also 7 noted that the record contains no evidence that Plaintiff’s treating providers recommended 8 restrictions with any consistency or over any extended duration, and that the record does not 9 indicate that he received “consistent medical treatment from September 2016 through the date last 10 insured,” which was December 31, 2017. A.R. 22. 11 The court concludes that the ALJ’s characterization of the “evidence of record” as 12 reflecting non-severe symptoms, well-managed pain, and non-aggressive medical treatment is not 13 supported by substantial evidence. The record shows that following a workplace injury in March 14 2012, Plaintiff underwent three surgeries within less than two years. In November 2012, Plaintiff 15 had surgery on his right shoulder. His doctor performed open biceps tenodesis, arthroscopy with 16 subacromial decompression, arthroscopy with extensive debridement of glenohumeral joint and 17 partial rotator cuff tear and labral tear including SLAP tear. A.R. 346-60. Following the surgery, 18 he was diagnosed with right shoulder biceps tenosynovitis; right shoulder type I SLAP tear; right 19 shoulder subacromial bursitis; and right shoulder subscapularis partial rotator cuff tear. A.R. 360- 20 61. In May 2013, Plaintiff had surgery on his right wrist to address pain, and was diagnosed with 21 right hand carpal tunnel syndrome, right wrist TFCC tear and synovitis. A.R. 309-23. Later that 22 year, in December 2013, he had surgery on his left shoulder. The procedure was a left shoulder 23 arthroscopy with subacromial decompression, left shoulder arthroscopy with extensive 24 debridement of glenohumeral joint and labral tearing, and left shoulder open biceps tenodesis. He 25 was diagnosed post-surgery with left shoulder bursitis, left shoulder superior, anterior, and 26 posterior labral tear, left shoulder biceps tenosynovitis, left shoulder partial rotator cuff tear. A.R. 27 275-88. 1 surgeries, from November 2012 through January 2013 and then again from January 2014 through 2 March 2014. A.R. 385-450. The physical therapy treatment notes reflect that Plaintiff continually 3 reported pain. See id. 4 In 2015 and 2016, Plaintiff began to complain of lower back pain to his treatment 5 providers, including pain radiating down his leg, and he received an MRI of the spine in March 6 2015. A.R. 471, 480, 483. The MRI showed congenitally short pedicles throughout the lumbar 7 spine that contribute to a baseline degree of spinal canal and neuroforaminal stenosis. A.R. 483. 8 The findings were most severe at L4-L5, where there is moderate spinal canal and severe bilateral 9 neuroforaminal stenosis. A.R. 483. Plaintiff was eventually diagnosed with chronic low back 10 pain and lumbosacral radiculitis. A.R. 486. In April 2016, Plaintiff was given a steroid injection 11 at L5. One month later, he received a second steroid injection at L4-L5, despite reporting “mild 12 relief only” from his April 2016 injection. A.R. 492-93, 504-05. 13 This evidence does not support the ALJ’s determination that Plaintiff’s symptoms were 14 non-severe or well controlled with over-the-counter medications; to the contrary, Plaintiff testified 15 that he takes pain medication at night and that his doctor keeps increasing his dosage, but it does 16 not help with his pain. A.R. 62, 67-68. It also does not support the ALJ’s conclusion that Plaintiff 17 has essentially received conservative treatment, as the record shows he has undergone surgeries, 18 months of physical therapy, and steroid injections to treat his symptoms. See Garrison v. Colvin, 19 759 F.3d 995, 1015 n.20 (9th Cir. 2014) (“we doubt that epidural steroid shots to the neck and 20 lower back qualify as ‘conservative’ medical treatment.”). In sum, the court concludes that the 21 purported inconsistency between Plaintiff’s testimony and the evidence of record is not supported 22 by substantial evidence. Therefore, it does not constitute a “specific, clear and convincing” reason 23 for rejecting Plaintiff’s testimony. 24 // 25 // 26 // 27 //

V. CONCLUSION

For the foregoing reasons, Plaintiff's motion for summary judgment is granted in part and 2 denied in part. This case is remanded for further proceedings consistent with this opinion. 3 1 SE DISTR IG CG

IT IS SO ORDERED. ON

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