(SS) Jones v. Commissioner of Social Security

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 WHITNEY A. JONES, No. 2:23-cv-00339-TLN-EFB 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 COMMISSIONER OF SOCIAL SECURITY, [15] Defendant. [16] 17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 18 denying her application for disability insurance benefits under Title II of the Social Security Act. 19 ECF No. 1. The parties’ cross-motions for summary judgment are pending. ECF Nos. 12 & 18. 20 For the reasons provided below, the undersigned will recommend that plaintiff’s motion for 21 summary judgment be granted and the Commissioner’s motion for summary judgment be denied. 22 I. Background 23 On September 24, 2020, plaintiff filed an application for disability insurance benefits 24 (DIB) under Title II of the Social Security Act (Act), alleging disability beginning April 24, 25 2018.1 Administrative Record (AR) 13. Plaintiff alleged she was disabled due to cervical and [26] 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the 27 Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is 28 defined, in part, as an “inability to engage in any substantial gainful activity” due to “a medically 1 lumbar spine conditions, sciatic pain, anxiety, chronic pain including pain in arms, legs, and hips, 2 frequent headaches, and osteoarthritis. AR 20. Plaintiff’s application was denied initially and 3 upon reconsideration. AR 13. After a telephonic hearing before an administrative law judge 4 (ALJ) on March 21, 2022, at which plaintiff was represented by counsel (AR 34-61), the ALJ 5 published an unfavorable decision on March 29, 2022. AR 13-28. 6 At the hearing, plaintiff testified that she was born in 1962 and had a sixth-grade 7 education. AR 43. She obtained her GED and worked as a medical assistant for seven years and 8 as a truck driver for sixteen years. AR 43-44. She stopped working in April 2018 because of 9 severe pain in her neck that “goes down my arms, which causes me not to have strength in my 10 hands[.]” AR 44-45. Neck surgery in 2018 temporarily eased the pain; when it returned, 11 plaintiff’s surgeon recommended a second surgery to fuse her cervical spine, which she was “not 12 ready for[.]” AR 45-46. Plaintiff testified that she could lift five to seven pounds and stand or sit [13] determinable physical or mental impairment.” 42 U.S.C. §§ 423 (d)(1)(A) & 1382c(a)(3)(A). A [14] five-step sequential evaluation governs eligibility for benefits. See 42 U.S.C. §§ 423 (d)(1)(A), 15 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The steps are: 16 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. [17] Step two: Does the claimant have a "severe" impairment? If so, proceed to step [18] three. If not, then a finding of not disabled is appropriate. [19] Step three: Does the claimant’s impairment or combination of impairments meet 20 or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four. [21] Step four: Is the claimant capable of performing his past work? If so, the claimant [22] is not disabled. If not, proceed to step five. [23] Step five: Does the claimant have the residual functional capacity to perform any 24 other work? If so, the claimant is not disabled. If not, the claimant is disabled. [25] Lester v. Chater, 81 F.3d 821 , 828 n.5 (9th Cir. 1995). [26] The claimant bears the burden of proof in the first four steps of the sequential evaluation process. 27 Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. [28] 1 for half an hour at a time. AR 48-49. She took medication for anxiety and depression, and she 2 found it hard to focus and remember things. AR 49-51. Upon questioning from the ALJ, plaintiff 3 further testified that she obtained custody of her “mentally challenged” grandson in December 4 2016, and the stress caused her to “[fall] apart,” affecting her job as a medical assistant. AR 53. 5 In May 2018, she could lift her 33-pound grandson, but she would drop him; after undergoing 6 surgery in November 2018, she couldn’t lift him at all. AR 54. 7 Vocational expert (VE) Thomas Satoris testified that plaintiff’s past jobs included medical 8 assistant, which had a light exertional level per the Dictionary of Occupational Titles (DOT). AR 9 56. He further testified that a person with the same age, education, and work experience as 10 plaintiff, limited to light work as set forth in the determined residual functional capacity (RFC), 11 could perform the job of medical assistant as generally performed and defined in the DOT. AR 12 57-58. However, if such a person were off-task 15 percent of the time and missed three days a 13 month or more, he testified, she could not perform that job. AR 58-59. 14 The ALJ determined that plaintiff had not been under a disability during the period at 15 issue (April 24, 2018 through March 29, 2022), finding as follows: 16 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2023. [17] 2. The claimant has not engaged in substantial gainful activity since April 18 24, 2018, the alleged onset date. 19 3. The claimant has the following severe impairments: (1) lumbar, thoracic, and cervical spine problems . . . with pain/ 20 sciatica/radiculopathy/cervicalgia, status post-cervical fusion (November 14, 2018); (2) obesity; (3) bilateral carpal tunnel syndrome 21 with bilateral hand numbness status-post right wrist release surgery; (4) sensorineural hearing loss bilaterally; and (5) chronic pain syndrome. [22] 4. The claimant does not have an impairment or combination of 23 impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR, Subpart P, Appendix 1. [24] 5. After careful consideration of the entire record, the undersigned finds 25 that the claimant has the residual functional capacity to lift, carry, push, and pull up to 20 pounds occasionally and 10 pounds frequently in light 26 work as defined by the regulations. She can stand and/or walk for 6 hours in an 8-hour day. She can sit 6 hours in an 8-hour day. . . . She 27 may frequently engage in work activity requiring flexion, extension, and rotation of the neck. With the upper extremities, she may frequently 28 reach in all directions, push, pull, handle, finger, and feel. With the lower 1 extremities, she may frequently push, pull, and engage in foot pedal operations. . . . [2] 6. The claimant is capable of performing past relevant work as a medical 3 assistant. This work does not require the performance of work-related activities precluded by the claimant’s residual functional capacity. [4] 7. The claimant has not been under a disability, as defined in the Social 5 Security Act, from April 24, 2018, through the date of this decision. 6 AR 15-28. 7 II. Standard of Review 8 The court will uphold the Commissioner’s decision that a claimant is not disabled if 9 substantial evidence in the record supports the Commissioner’s findings of fact and the 10 Commissioner applied the proper legal standards. Schneider v. Comm’r of the SSA, 223 F.3d 968 , 11 973 (9th Cir. 2000); Morgan v. Comm’r of the SSA, 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. 12 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 13 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 14 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 15 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 16 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 17 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 18 NLRB, 305 U.S. 197, 229 (1938)). 19 “The ALJ is responsible for determining credibility, resolving conflicts in medical 20 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 21 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 22 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 23 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 24 III. Claims 25 Plaintiff claims that the ALJ made the following errors: (1) the ALJ erred by failing to 26 find several of plaintiff’s impairments severe; (2) the ALJ erred by discounting the opinion of a 27 treating physician’s assistant (PA); (3) the ALJ erred by discounting plaintiff’s subjective 28 symptom testimony; and (4) the RFC is not based on substantial evidence. 1 IV. Analysis 2 1. Credibility 3 Plaintiff claims that the ALJ erred by discounting her credibility as to her subjective 4 symptoms. She argues that the ALJ failed to identify the testimony he found not credible and link 5 these findings to evidence in the record, as required. 6 The ALJ summarized plaintiff’s symptom allegations, including chronic pain and pain 7 throughout her body, and continued: 8 She reported having constant exhaustion and that her severe arm and neck pain required medication that limited physical activity. She 9 reported having problems with many activities, including lifting, walking, sitting, using her hands, standing, and bending. She 10 reported taking baclofen, Crestor, diclofenac, estradiol, gabapentin, Lexapro, pantoprazole, and Singulair, with side effects of drowsiness 11 from baclofen, gabapentin, and Lexapro. 12 AR 20-21 (record citations omitted). The ALJ determined that, while plaintiff had multiple 13 severe physical impairments, including chronic pain syndrome, “the claimant’s statements 14 concerning the intensity, persistence, and limiting effects of these symptoms are not entirely 15 consistent with the medical evidence and other evidence in the record for the reasons explained in 16 this decision.” AR 21. 17 The ALJ determines whether a disability applicant is credible, and the court defers to the 18 ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g., 19 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make 20 an explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990). In 21 evaluating whether subjective complaints are credible, the ALJ should first consider objective 22 medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 344 (9th 23 Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ then may 24 consider the nature of the symptoms alleged, including aggravating factors, medication, treatment 25 and functional restrictions. See id. at 345-47 . The ALJ also may consider: (1) the applicant’s 26 reputation for truthfulness, prior inconsistent statements or other inconsistent testimony, (2) 27 unexplained or inadequately explained failure to seek treatment or to follow a prescribed course 28 of treatment, and (3) the applicant’s daily activities. Smolen v. Chater, 80 F.3d 1273, 1284 (9th 1 Cir. 1996); see generally SSR 96-7P, 61 FR 34483 -01; SSR 95-5P, 60 FR 55406 -01; SSR 88-13. 2 Work records, physician and third-party testimony about nature, severity and effect of symptoms, 3 and inconsistencies between testimony and conduct also may be relevant. Light v. Social Security 4 Administration, 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek treatment for an allegedly 5 debilitating medical problem may be a valid consideration by the ALJ in determining whether the 6 alleged associated pain is not a significant nonexertional impairment. See Flaten v. Secretary of 7 HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). 8 “Without affirmative evidence showing that the claimant is malingering, the 9 Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.” 10 Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595 , 599 (9th Cir. 1999); see also 11 Lambert v. Saul, 980 F.3d 1266 , 1277–78 (9th Cir. 2020). When discounting subjective 12 testimony, an ALJ must provide “specific, clear, and convincing reasons for doing so.” Wade v. 13 Saul, 850 F. App’x 568 , 569 (9th Cir. 2021) (emphasis in original), citing Lambert, 980 F.3d at 14 1277–78. This standard does “not require ALJs to perform a line-by-line exegesis of the 15 claimant’s testimony[.]” Lambert, 980 F.3d at 1277 . However, an ALJ’s detailed overview of 16 the claimant’s medical history—coupled with a nonspecific boilerplate conclusion that her 17 testimony is “not entirely consistent” with her medical treatment—is not enough to satisfy the 18 minimal requirements for assessing credibility. Id. at 1277–78. 19 Here, at the outset of his credibility analysis, the ALJ found that plaintiff’s statements 20 about the intensity, persistence, and limiting effects of her symptoms were “inconsistent because . 21 . . the record contains many unremarkable findings that demonstrate significant functional 22 ability.” AR 21 (emphasis added). The ALJ proceeded to summarize the objective medical 23 evidence of plaintiff’s spine problems, noting that “imaging studies of her spine have shown 24 multiple abnormal findings.” AR 21. The ALJ described MRI results from July 2018, October 25 2018, and October 2020, and noted that plaintiff underwent cervical diskectomy and fusion 26 surgery in November 2018. AR 21-22. Despite plaintiff’s history of spinal degenerative disease 27 and cervical fusion, the ALJ concluded, “the medical evidence contains many unremarkable 28 findings and reports that support the ability to work within the restrictions of the above [RFC].” 1 AR 22 (emphasis added). 2 The ALJ next summarized examination findings in 2019 and 2020, in the course of 3 plaintiff’s post-surgical treatment for back problems, as well as examination findings in 2016 and 4 2019. AR 22-23. At no point in this summary of evidence did the ALJ link the exam findings to 5 plaintiff’s subjective testimony of chronic pain, difficulty performing physical functions, and 6 drowsiness from multiple medications. After weighing the medical opinions, the ALJ concluded 7 his summary of the evidence as follows: 8 While the claimant has abnormal exam findings and a history of surgeries that support the existence of severe impairments, there are 9 many unremarkable findings and reports that support the ability to perform a range of light work, [including] normal neck range of 10 motion, 5+ strength, normal upper extremities strength, and no focal neurological deficits. She had an ‘unremarkable’ musculoskeletal 11 during on [sic] exam in January 2022 and normal range of motion with normal strength and sensation at an exam two weeks later. [12] 13 AR 26 (record citations omitted). In summary, up to this point, the ALJ effectively discounted 14 plaintiff’s symptom testimony based on a general finding of “unremarkable findings and reports,” 15 while linking few specific pieces of evidence to her testimony. 16 Turning back to the issue of credibility, the ALJ reasoned that plaintiff’s reported 17 problems with handling and fingering were undercut by her ability to lift her grandson. AT 26. 18 Similarly, her allegations of disabling mental symptoms were undercut by evidence suggesting 19 “she stopped working . . . to due stress caring for” her grandson, and her alleged physical 20 limitations were called into question because she took her grandson on walks to the park, cooked 21 dinner for him, and acted as his caretaker. AR 26-27. The ALJ cited plaintiff’s ability to lift her 22 grandson as evidence “that she did retain a substantial ability to lift during this period and is not 23 fully consistent with her allegations.” AT 27. 24 Overall, the ALJ’s credibility analysis is similar to what the Ninth Circuit found 25 insufficient in Wade: a summary of the medical evidence coupled with a boilerplate conclusion 26 that plaintiff’s testimony as to, e.g., debilitating pain, was inconsistent with “many unremarkable 27 findings” in the record. See Perez v. Astrue, 831 F.Supp.2d 1168, 1179 (C.D. Cal. 2011) (“[A]s a [28] 1 matter of law a claimant’s testimony on the severity of symptoms cannot be discredited solely 2 because it is unsupported by objective medical evidence”) (emphasis in original), citing Reddick 3 v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The ALJ summarily concluded that plaintiff could 4 perform the physical requirements of light work without explaining what specific evidence 5 discounted her testimony as to “problems with many activities, including lifting, walking, sitting, 6 using her hands, standing, and bending” due to chronic pain and fatigue. Moreover, as to daily 7 activities, the range of “activities cited is actually quite small and not particularly probative of the 8 ability to work.” Perez, 831 F.Supp.2d at 1179 . The ALJ does not attempt to explain why 9 plaintiff’s ability to lift a young child, take him to the park, and other short-term physical 10 exertions, translates into the ability to work in an office eight hours a day, five days a week, 11 without excessive absenteeism or time off-task due to chronic pain. See id. at 1180 (“None of 12 Claimant’s daily activities cited by the ALJ evidence the ability to work on a regular, continuing 13 basis.”). 14 Defendant cites Kaufman v. Kijakazi, 32 F. 4th 843, 851 (9th Cir. 2022) for the 15 proposition that the court must read the ALJ’s decision as a whole to determine whether the 16 credibility analysis was flawed. In that case, considering whether the lower court abused its 17 discretion by correcting an admitted error pursuant to a Rule 59 motion, the Ninth Circuit 18 reasoned that: 19 in its original decision, the court clearly erred by overlooking the ALJ’s full explanation. Looking to the entire record, substantial 20 evidence supports the ALJ’s conclusion that Claimant's testimony about the extent of her limitations conflicted with the evidence of her 21 daily activities, such as sewing, crocheting, and vacationing, and supports the ALJ’s finding that Claimant's testimony was not fully 22 credible. [23] Id. (emphasis added). Similarly, in the underlying decision at issue in Kaufman, the district court 24 found “that the ALJ specifically identified which of Plaintiff’s activities were inconsistent with 25 her symptom testimony, and provided a clear and convincing reason for discounting Plaintiff’s 26 testimony concerning her physical symptoms.” Jody K. v. Comm’r, 2021 WL 1720947 , *1 (W.D. 27 Wash. April 30, 2021) (emphasis added). Nothing in Kaufman calls into question the requirement 28 that the ALJ “specifically identify” the evidence that is inconsistent with plaintiff’s symptom 1 testimony, and it appears distinguishable from the instant case. 2 Based on the foregoing2, the ALJ committed harmful error such that the finding of not 3 disabled is not supported by substantial evidence. See Lambert, 980 F.3d at 1278 (“Because the 4 ALJ did not provide enough ‘reasoning in order for us to meaningfully determine whether the 5 ALJ’s conclusions were supported by substantial evidence,’ we cannot treat the error as 6 harmless.” (quoting Treichler v. Comm’r, 775 F.3d 1090, 1103 (9th Cir. 2014)). 7 V. Remedy 8 With error established, the court has the discretion to remand or reverse and award 9 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded 10 under the “credit-as-true” rule for an award of benefits where: 11 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 12 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 13 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. [14] 15 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the 16 “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when 17 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within 18 the meaning of the Social Security Act.” Id. at 1021 ; see also Dominguez v. Colvin, 808 F.3d 19 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative 20 proceedings would serve no useful purpose, it may not remand with a direction to provide 21 benefits.”); Treichler, 775 F.3d at 1105 (“Where . . . an ALJ makes a legal error, but the record is 22 uncertain and ambiguous, the proper approach is to remand the case to the agency.”). 23 Here, the record as a whole leaves doubt as to whether plaintiff was disabled during the 24 relevant period. On remand, the ALJ should provide specific, clear, and convincing reasons for 25 discounting any portion(s) of plaintiff’s subjective symptom testimony. The court expresses no 26 opinion regarding how the evidence should ultimately be weighed, and any ambiguities or [27] 28 2 The court does not reach the remaining claims. 1 || inconsistencies resolved, on remand. The court also does not instruct the ALJ to credit any 2 || particular opinion or testimony. The ALJ may ultimately find plaintiff disabled during the 3 | entirety of the relevant period; may find plaintiff eligible for some type of closed period of 4 | disability benefits; or may find that plaintiff was never disabled during the relevant period, 5 | provided that the ALJ’s determination complies with applicable legal standards and is supported 6 | by the record as a whole. 7 Accordingly, this matter should be remanded under sentence four of 42 U.S.C. § 405 (g) 8 | for further administrative proceedings. 9 IT IS HEREBY RECOMMENDED THAT plaintiff's motion for summary judgment 10 | (ECF No. 12) be GRANTED, defendant’s cross-motion for summary judgment (ECF No. 18) be 11 | DENIED, and this matter remanded for further administrative proceedings consistent with this 12 | order. 13 These findings and recommendations are submitted to the United States District Judge 14 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within seven days after 15 | being served with these findings and recommendations, any party may file written objections with 16 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 17 | Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 18 | objections within the specified time may waive the right to appeal the District Court’s order. 19 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). Hr SZZ EL 21 || Dated: March 13, 2024 Zot} "Wbehliedl 7 LACEY 7 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE