Martin v. Berryhill

[2] 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA [5] DEBORAH M., 6 Case No. 19-cv-01901-DMR Plaintiff, [7] v. ORDER ON CROSS MOTIONS FOR 8 SUMMARY JUDGMENT NANCY A BERRYHILL, 9 Re: Dkt. Nos. 16, 17 Defendant. [10] 11 Plaintiff Deborah M., representing herself, moves for summary judgment to reverse the 12 Commissioner of the Social Security Administration’s (the “Commissioner’s”) final administrative 13 decision, which found Plaintiff not disabled and therefore denied her application for benefits under 14 Title II of the Social Security Act, 42 U.S.C. § 401 et seq. [Docket No. 16 (“Pltf. Mot.”), 18 15 (“Reply”).] The Commissioner cross-moves to affirm. [Docket No. 17 (“Def. Mot.”).] For the 16 reasons stated below, the court grants Plaintiff’s motion, denies the Commissioner’s cross motion, 17 and remands this case for further proceedings. 18 I. PROCEDURAL HISTORY 19 Plaintiff filed an application for Social Security Disability Insurance (“SSDI”) benefits on 20 May 7, 2015, which was initially denied on August 27, 2015 and again on reconsideration on 21 December 23, 2015. Administrative Record (“A.R.”) 116-29, 131-41, 144-49, 151-56. On February 22 16, 2016, Plaintiff filed a request for a hearing before an Administrative Law Judge (“ALJ”). A.R. 23 157-58. ALJ Richard P. Laverdure held a hearing on May 18, 2017 and August 31, 2017. A.R. 3824 98. On October 26, 2017, the ALJ issued a decision finding Plaintiff not disabled. A.R. 19-37. The 25 ALJ determined that Plaintiff has the following severe impairments: degenerative disc disease, 26 osteoarthritis of the left hip, morbid obesity, and complex regional pain syndrome. A.R. 25. The 27 ALJ found that Plaintiff retains the following residual functional capacity (“RFC”): involving no ladders, ropes, or scaffolds, and only occasional use of ramps [1] and stairs; she can occasionally balance, stoop, kneel, crouch, and crawl, 2 and can occasionally pedal bilaterally; she must also be allowed to alternate between positions (i.e. sit, stand, or walk) while still at her workstation up 3 to 5 minutes every 30 minutes. 4 A.R. 25 . Relying on the opinion of a vocational expert (“VE”) who testified that an individual with 5 such an RFC could perform Plaintiff’s past relevant work as a personnel clerk, the ALJ concluded 6 that Plaintiff is not disabled. 7 The Appeals Council denied Plaintiff’s request for review on August 10, 2018. A.R. 8-13. 8 The ALJ’s decision therefore became the Commissioner’s final decision. Taylor v. Comm’r of Soc. 9 Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). Plaintiff then filed suit in this court pursuant to [10] 42 U.S.C. § 405 (g). 11 II. THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 12 To qualify for disability benefits, a claimant must demonstrate a medically determinable 13 physical or mental impairment that prevents her from engaging in substantial gainful activity1 and 14 that is expected to result in death or to last for a continuous period of at least twelve months. Reddick 15 v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423 (d)(1)(A)). The impairment 16 must render the claimant incapable of performing the work she previously performed and incapable 17 of performing any other substantial gainful employment that exists in the national economy. Tackett 18 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423 (d)(2)(A)). 19 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. 20 §§ 404.1520, 416.920. The steps are as follows: 21 1. At the first step, the ALJ considers the claimant’s work activity, if any. If the 22 claimant is doing substantial gainful activity, the ALJ will find that the claimant is not disabled. 23 2. At the second step, the ALJ considers the medical severity of the claimant’s 24 impairment(s). If the claimant does not have a severe medically determinable physical or mental 25 impairment that meets the duration requirement in [20 C.F.R.] § 416.909, or a combination of 26 impairments that is severe and meets the duration requirement, the ALJ will find that the claimant [27] 1 is not disabled. 2 3. At the third step, the ALJ also considers the medical severity of the claimant’s 3 impairment(s). If the claimant has an impairment(s) that meets or equals one of the listings in 20 4 C.F.R., Pt. 404, Subpt. P, App. 1 [the “Listings”] and meets the duration requirement, the ALJ will 5 find that the claimant is disabled. 6 4. At the fourth step, the ALJ considers an assessment of the claimant’s residual 7 functional capacity (“RFC”) and the claimant’s past relevant work. If the claimant can still do his 8 or her past relevant work, the ALJ will find that the claimant is not disabled. 9 5. At the fifth and last step, the ALJ considers the assessment of the claimant’s RFC 10 and age, education, and work experience to see if the claimant can make an adjustment to other 11 work. If the claimant can make an adjustment to other work, the ALJ will find that the claimant is 12 not disabled. If the claimant cannot make an adjustment to other work, the ALJ will find that the 13 claimant is disabled. [14] 20 C.F.R. § 416.920 (a)(4); 20 C.F.R. §§ 404.1520 ; Tackett, 180 F.3d at 1098-99 . 15 III. STANDARD OF REVIEW 16 Pursuant to 42 U.S.C. § 405 (g), this court has the authority to review a decision by the 17 Commissioner denying a claimant disability benefits. “This court may set aside the Commissioner’s 18 denial of disability insurance benefits when the ALJ’s findings are based on legal error or are not 19 supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094 , 1097 20 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the record that could 21 lead a reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, [22] 402 U.S. 389, 401 (1971). It is more than a mere scintilla, but less than a preponderance. See Saelee 23 v. Chater, 94 F.3d 520, 522 (9th Cir.1996) (internal citation omitted). When performing this 24 analysis, the court must “consider the entire record as a whole and may not affirm simply by isolating 25 a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 26 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 1035 , 4 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 5 The court has read and considered the entire administrative record. For the purposes of 6 brevity, the court cites only the facts that are relevant to its decision. 7 IV. ISSUES PRESENTED 8 Plaintiff argues that the ALJ erred in (1) failing to give proper weight to the medical opinion 9 of Plaintiff’s treating physician, Dr. Steven Schadendorf; (2) making a partially adverse credibility 10 determination; (3) assessing her RFC; and (4) eliciting testimony from the VE. 11 V. DISCUSSION 12 A. Medical Opinions 13 1. Legal Standard 14 Courts employ a hierarchy of deference to medical opinions based on the relation of the 15 doctor to the patient. Namely, courts distinguish between three types of physicians: those who treat 16 the claimant (“treating physicians”) and two categories of “nontreating physicians,” those who 17 examine but do not treat the claimant (“examining physicians”) and those who neither examine nor 18 treat the claimant (“non-examining physicians”). See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 19 1995). A treating physician’s opinion is entitled to more weight than an examining physician’s 20 opinion, and an examining physician’s opinion is entitled to more weight than a non-examining 21 physician’s opinion. Id. 22 The Social Security Act tasks the ALJ with determining credibility of medical testimony and 23 resolving conflicting evidence and ambiguities. Reddick, 157 F.3d at 722 . A treating physician’s 24 opinion, while entitled to more weight, is not necessarily conclusive. Magallanes v. Bowen, 881 25 F.2d 747, 751 (9th Cir. 1989) (citation omitted). To reject the opinion of an uncontradicted treating 26 physician, an ALJ must provide “clear and convincing reasons.” Lester, 81 F.3d at 830 ; see, e.g., 27 Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (affirming rejection of examining 1 see also 20 C.F.R. § 416.927 (d)(2); SSR 96-2p, 1996 WL 374188 (July 2, 1996). If another doctor 2 contradicts a treating physician, the ALJ must provide “specific and legitimate reasons” supported 3 by substantial evidence to discount the treating physician’s opinion. Lester, 81 F.3d at 830 . The 4 ALJ meets this burden “by setting out a detailed and thorough summary of the facts and conflicting 5 clinical evidence, stating his interpretation thereof, and making findings.” Reddick, 157 F.3d at 725 6 (citation omitted). “[B]road and vague” reasons do not suffice. McAllister v. Sullivan, 888 F.2d 7 599, 602 (9th Cir. 1989). This same standard applies to the rejection of an examining physician’s 8 opinion as well. Lester, 81 F.3d at 830-31 . A non-examining physician’s opinion alone cannot 9 constitute substantial evidence to reject the opinion of an examining or treating physician, Pitzer v. 10 Sullivan, 908 F.2d 502 , 506 n.4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 11 1984), though a non-examining physician’s opinion may be persuasive when supported by other 12 factors. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (noting that opinion by 13 “non-examining medical expert . . . may constitute substantial evidence when it is consistent with 14 other independent evidence in the record”); Magallanes, 881 F.2d at 751-55 (upholding rejection of 15 treating physician’s opinion given contradictory laboratory test results, reports from examining 16 physicians, and testimony from claimant). An ALJ “may reject the opinion of a non-examining 17 physician by reference to specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 18 1240, 1244 (9th Cir. 1998). An opinion that is more consistent with the record as a whole generally 19 carries more persuasiveness. See 20 C.F.R. § 416.927 (c)(4). 20 2. Analysis 21 Dr. Steven Schadendorf has treated Plaintiff since February 2011, when she presented for a 22 neurological consultation. A.R. 492. Plaintiff began experiencing back and leg pain after a motor 23 vehicle accident in 2007. A.R. 492. She had a rhizotomy performed to relieve the pain, but after 24 the procedure, she “developed increasing left lateral leg pain with associated numbness and left 25 dorsiflexion weakness.” A.R. 492. The record contains Dr. Schadendorf’s treating notes and three 26 medical source statements. 27 In Dr. Schadendorf’s September 2013 source statement, he explained that Plaintiff 1 pain is constant and is precipitated by lifting, activity, and sitting more than 1 hour. A.R. 405. He 2 said that Plaintiff can independently initiate and sustain ambulation and does not need a cane. A.R. 3 404. She can independently initiate and sustain fine and gross movements, although she has 4 significant limitations in lifting because of pain. A.R. 404. He opined that in an 8 hour workday, 5 she can sit, stand, or walk for up to 2 hours. A.R. 405. She has to get up and move around every 2 6 hours for at least 30 minutes before she can sit again. A.R. 405. She can occasionally lift and carry 7 up to 20 pounds and cannot push or pull. A.R. 406, 408. Dr. Schadendorf wrote that Plaintiff’s 8 pain is periodically severe enough to interfere with her attention and concentration, her impairments 9 are likely to produce “good days” and “bad days,” and that she would likely be absent from work 10 two to three days a month as a result of her impairments. A.R. 407-08. 11 Dr. Schadendorf’s May 2017 source statement records Plaintiff’s diagnoses as lumbar 12 radiculopathy, bilateral lower limb complex regional pain syndrome (“CRPS”), and lumbar 13 spondylosis. A.R. 473. He stated that she experiences severe intractable pain in her lower limbs, 14 which began after her rhizotomy, and weakness in her left foot and ankle. A.R. 473-74. The pain 15 is constant, sharp, and shooting, and is aggravated by sitting, lifting, shifting weight, pushing, and 16 pulling. A.R. 474. He wrote that previous treatments, including lumbar sympathetic blocks and 17 physical therapy, provided no relief or even made the pain worse. A.R. 474. Dr. Schadendorf 18 opined that Plaintiff can sit, stand, or walk for less than 1 hour each in an 8 hour workday. A.R. 19 475. She cannot sit continuously, and every 15 minutes has to get up to move around for at least 15 20 minutes. A.R. 475. She can lift up to 10lbs occasionally and carry up to 5lbs. A.R. 475. Although 21 Dr. Schadendorf indicated that Plaintiff does not have significant limitations in reaching, handling, 22 or fingering, he also noted that she can rarely or never use her arms for reaching. A.R. 476. He 23 wrote that her symptoms would frequently be severe enough to interfere with attention and 24 concentration and that she would need to take unscheduled 15 minute breaks every hour. A.R. 476. 25 According to the May 2017 statement, Plaintiff would likely be absent from work more than three 26 days a month due to her impairments. A.R. 477. 27 Dr. Schadendorf wrote a letter in support of Plaintiff’s disability application in August 2017. 1 a L5 radiculopathy. A.R. 492. He stated that her pain, numbness, and lower skin temperature are 2 all consistent with CRPS. A.R. 492. CPRS is also indicated by the development of similar pain in 3 her right leg despite the absence of a nerve root injury in that limb because people with CPRS often 4 develop similar severe pain in their opposite limb. A.R. 492. According to Dr. Schadendorf, the 5 prognosis from CRPS is often poor, and patients experience increasing pain and dysfunction over 6 time. A.R. 492. He opined that Plaintiff’s activity level is severely restricted due to pain and 7 dorsiflexion weakness, and that she cannot lift more than a few pounds or sit/stand for prolonged 8 periods of time. A.R. 492. Dr. Schadendorf wrote that he does not expect Plaintiff to recover and 9 that he believes she cannot do fulltime competitive work. A.R. 492. 10 Plaintiff argues that the ALJ erred in assigning little weight to Dr. Schadendorf’s statements. 11 Because Dr. Schadendorf’s opinions are contradicted by the other medical sources in the record, all 12 of whom assigned less restrictive limitations, the ALJ was required to provide specific and 13 legitimate reasons supported by substantial evidence to reject them. Lester, 81 F.3d at 830 . 14 With respect to Dr. Schadendorf’s September 2013 statement, the ALJ stated that the 15 assessment was internally inconsistent and not supported by Dr. Schadendorf’s own findings. A.R. 16 29. He pointed out that Dr. Schadendorf wrote that Plaintiff did not need an assistive device for 17 ambulation even though he opined that she could only walk 2 hours total in an 8 hour workday. 18 A.R. 29 . However, these statements are not necessarily contradictory. The source statement and 19 the medical record indicate that Plaintiff is primarily limited by pain rather than motor deficits. It 20 can both be true that Plaintiff does not need a cane to walk (or at least did not at the time the 21 statement was written) and that she cannot sustain walking for more than two hours because of pain. 22 The ALJ also determined that it was inconsistent for Dr. Schadendorf to indicate that Plaintiff has 23 significant limitations in repetitive reaching, handling, fingering, or lifting even though he assessed 24 no limitations in fine/gross motor skills or in Plaintiff using her arms for reaching. A.R. 29. The 25 ALJ somewhat mischaracterizes Dr. Schadendorf’s opinion. Although Dr. Schadendorf checked 26 “yes” to the question, “Does your patient have significant limitations in doing repetitive reaching, 27 handling, fingering, or lifting?”, he also noted in the margins that “lifting exacerbates pain.” A.R. 1 in lifting, but not in reaching, handling, or fingering. See A.R. 404. This is consistent with his 2 assessment indicating that Plaintiff has no limitations in fine/gross motor skills or in reaching. A.R. 3 404. Therefore, there are no apparent contradictions in the source statement and the ALJ erred in 4 discounting the September 2013 statement on that basis. 5 The ALJ discounted Dr. Schadendorf’s May 2017 source statement on the grounds that it is 6 inconsistent with the medical evidence. He wrote that Dr. Schadendorf’s “treatment records from 7 2013 to 2015 generally reflect that the claimant’s upper extremity motor strength, reflexes, and 8 coordination were all within normal limits.” A.R. 30. It is true that Plaintiff’s physical examinations 9 by Dr. Schadendorf were generally unremarkable in terms of motor strength, reflexes, and 10 coordination. See A.R. 412, 416, 419, 423, 427, 431, 435, 447, 452, 479. The ALJ also correctly 11 noted elsewhere that Plaintiff’s MRI and EMG results did not show significant abnormalities. See 12 A.R. 436 (observing mild ligament flavum hypertrophy throughout the lumbar spine but not 13 significant disc disease or foraminal stenosis); 438 (finding mild chronic left L5 root denervation 14 and re-innervation). Nonetheless, the court finds that the ALJ erred in failing to consider Dr. 15 Schadendorf’s opinion in light of Social Security Ruling 03-2p, which explains the Commissioner’s 16 policies for evaluating CRPS (also known as Reflex Sympathetic Dystrophy Syndrome or “RSDS”). 17 Wellington v. Berryhill, 878 F.3d 867, 872 (9th Cir. 2017) (“Although Social Security Rulings do 18 not carry the ‘force of law,’ they are nevertheless binding on ALJs.”). According to SSR 03-2p, 19 CRPS is diagnosed through the presence of one or more characteristic symptoms, including 20 swelling, autonomic instability (e.g. changes in skin color or texture, decreased or excessive 21 sweating, skin temperature changes, or goosebumps), abnormal hair or nail growth, osteoporosis, or 22 involuntary movements of the affected region of the initial injury. SSR 03-2p. Dr. Schadendorf’s 23 August 2017 letter explains why Plaintiff’s symptoms of pain, numbness, and lower limb skin 24 temperature are consistent with CRPS. A.R. 492. His medical notes also record the characteristic 25 symptoms of CRPS listed above, including edema, skin temperature changes, and dry skin. See 26 A.R. 412 , 416, 423, 427, 435, 467. Further, although the initial injury was to Plaintiff’s left leg and 27 foot, the record documents that it spread to her right lower extremity as well, which is also 1 Relevant here, the Ruling recognizes that CRPS “most often result[s] from trauma to a single 2 extremity” but can spread to other limbs or parts of the body. Id. A defining characteristic of CRPS 3 is that “the degree of pain reported is out of proportion to the severity of the injury sustained by the 4 individual.” SSR 03-2p. Further, “conflicting evidence in the medical record is not unusual in cases 5 of RSDS due to the transitory nature of its objective findings and the complicated diagnostic process 6 involved.” Id. These observations indicate that CRPS is a “disease for which objective findings 7 can be minimal.” Hunt v. Astrue, 2009 WL 1519543 , at *4 (C.D. Cal. May 29, 2009); see also Mark 8 L. v. Saul, 2019 WL 2560099 , at *3 (N.D. Ind. June 21, 2019) (“[A] claimant who experiences this 9 condition will often not have the sort of objective clinical findings that would normally be expected 10 to produce the amount of pain the individual is reporting.”). 11 Because clinical findings are of limited value with respect to CRPS, SSR 03-2p emphasizes 12 that the severity of the disorder can be assessed instead through “a longitudinal clinical record 13 containing detailed medical observations, treatment, the individual’s response to treatment, 14 complications of treatment, and a detailed description of how the impairment limits the individual's 15 ability to function and perform or sustain work activity over time.” SSR 03-2p. Clinical records 16 from treating sources are particularly useful. Id. In the context of fibromyalgia (another chronic 17 pain disorder primarily diagnosed through pain reports rather than clinical findings), the Ninth 18 Circuit has underlined the importance of examining the entire longitudinal medical record for 19 findings consistent with the diagnosis. See Revels v. Berryhill, 874 F.3d 648, 663 (9th Cir. 2017). 20 In Revels, for example, the court found that an ALJ erred in rejecting a rheumatologist’s opinion on 21 the limiting effects of fibromyalgia by focusing on imaging results rather than the signs that are 22 characteristic of that disorder, such as tender points. Id.; see also Benecke v. Barnhart, 379 F.3d 23 587, 594 (9th Cir. 2004) (holding that the ALJ erred by “effectively requiring ‘objective’ evidence 24 for a disease that eludes such measurement” (alterations and citation omitted)). The Ninth Circuit 25 also recognized that a treating physician’s “specialized knowledge is particularly important with 26 respect to a disease such as fibromyalgia that is poorly understood within much of the medical 27 community,” and thus a specialist’s opinion merits greater weight than those of other 1 C.F.R. § 404.1527 (c)(5) (“We generally give more weight to the medical opinion of a specialist 2 about medical issues related to his or her area of specialty than to the medical opinion of a source 3 who is not a specialist.”). 4 In this case, Dr. Schadendorf is a neurologist who has treated Plaintiff since February 2011. 5 His opinion relates to a disorder believed to originate in dysfunction of the sympathetic nervous 6 system, and therefore he qualifies as a specialist with respect to CPRS. See SSR 03-2p. The record 7 contains extensive treatment notes recording the progression of Plaintiff’s disorder and her 8 responses to various treatments. A.R. 421, 427, 433, 474, 492. The record also contains Dr. 9 Schadendorf’s medical observations of numbness, skin temperature, swelling, and dry skin, all of 10 which are characteristic of CRPS. See A.R. 412, 416, 423, 427, 435, 467, 492; see also SSR 03-2p. 11 Therefore, the medical evidence is consistent with a CRPS diagnosis, and Dr. Schadendorf is 12 particularly qualified to assess limitations associated with that condition. Since the ALJ’s opinion 13 focuses heavily on the diagnostic imaging results and Plaintiff’s generally unremarkable physical 14 examinations, which are of limited value for the reasons explained above, it is not clear that the ALJ 15 evaluated the medical evidence in light of the unique characteristics of CRPS, Dr. Schadendorf’s 16 expertise in that area, and the guidance in SSR 03-2p. Accordingly, the medical evidence he cites 17 is not a specific and legitimate reason to discount Dr. Schadendorf’s opinion. 18 The ALJ also discounted the May 2017 source statement on the basis that it contains an 19 inconsistency. Specifically, Dr. Schadendorf answered “no” to the question “Does your patient have 20 significant limitations in reaching, handling, or fingering?” but then also indicated that Plaintiff can 21 rarely or never use her arms for reaching. A.R. 476. The court acknowledges that these assessments 22 appear contradictory. However, inconsistencies in a physician’s report serve as a basis for 23 discounting that physician’s opinion only when the inconsistencies are material. See Downing v. 24 Barnhart, 167 F. App’x 652, 653 (9th Cir. 2006) (“[I]t is the ALJ’s responsibility to determine: (1) 25 whether there are internal inconsistencies in a physician’s report; (2) whether those inconsistencies 26 are material; and (3) ‘whether certain factors are relevant to discount’ the physician’s opinion.”). 27 Given that the ALJ’s discussion focuses primarily on the purported discrepancies between Dr. 1 not clear whether the single inconsistency in the May 2017 statement was material to the ALJ’s 2 decision to discount Dr. Schadendorf’s opinion as a whole or to the ultimate disability finding. On 3 remand, the ALJ should revisit this issue after evaluating the medical evidence consistent with the 4 standards set forth above and in SSR 03-2p. 5 Finally, the ALJ discounted Dr. Schadendorf’s August 2017 letter on the basis that it “did 6 not provide a functional assessment of the claimant’s abilities, but is simply conclusory.” A.R. 30. 7 This reasoning is not compelling. Although the August 2017 letter does not assess Plaintiff’s 8 specific limitations, it provides context for the limitations Dr. Schadendorf previously assessed in 9 September 2013 and May 2017. The letter explains the etiology and prognosis for Plaintiff’s 10 condition, which is particularly important in evaluating CRPS since clinical findings have limited 11 value. However, the ALJ did not err in disregarding Dr. Schadendorf’s opinion that Plaintiff is 12 unable to engage in fulltime competitive work, since that issue is reserved to the Commissioner. 20 13 C.F.R. § 404.1527 (d). 14 In sum, the ALJ erred in failing to evaluate the medical evidence in light of the Social 15 Security Ruling on CRPS and Ninth Circuit caselaw on chronic pain conditions. As a result, he 16 failed to provide specific and legitimate reasons to discount Dr. Schadendorf’s opinions as to 17 Plaintiff’s limitations. 18 B. Credibility 19 1. Legal Standard 20 In general, credibility determinations are the province of the ALJ. “It is the ALJ’s role to 21 resolve evidentiary conflicts. If there is more than one rational interpretation of the evidence, the 22 ALJ’s conclusion must be upheld.” Allen v. Sec’y of Health & Human Servs., 726 F.2d 1470 , 1473 23 (9th Cir. 1984) (citations omitted). An ALJ is not “required to believe every allegation of disabling 24 pain” or other nonexertional impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989) (citing [25] 42 U.S.C. § 423 (d)(5)(A)). However, if an ALJ discredits a claimant’s subjective symptom 26 testimony, the ALJ must articulate specific reasons for doing so. Greger v. Barnhart, 464 F.3d 968 , 27 972 (9th Cir. 2006). In evaluating a claimant’s credibility, the ALJ cannot rely on general findings, 1 claimant’s complaints.” Id. at 972 (quotations omitted); see also Thomas v. Barnhart, 278 F.3d 947 , 2 958 (9th Cir. 2002) (stating that an ALJ must articulate reasons that are “sufficiently specific to 3 permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony”). The 4 ALJ may consider “ordinary techniques of credibility evaluation,” including the claimant’s 5 reputation for truthfulness and inconsistencies in testimony, and may also consider a claimant’s 6 daily activities, and “unexplained or inadequately explained failure to seek treatment or to follow a 7 prescribed course of treatment.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 8 The determination of whether or not to accept a claimant’s testimony regarding subjective 9 symptoms requires a two-step analysis. 20 C.F.R. §§ 404.1529 , 416.929; Smolen, 80 F.3d at 1281 10 (citations omitted). First, the ALJ must determine whether or not there is a medically determinable 11 impairment that reasonably could be expected to cause the claimant’s symptoms. 20 C.F.R. §§ 12 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82 . Once a claimant produces medical evidence 13 of an underlying impairment, the ALJ may not discredit the claimant’s testimony as to the severity 14 of symptoms “based solely on a lack of objective medical evidence to fully corroborate the alleged 15 severity of” the symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc) (citation 16 omitted). Absent affirmative evidence that the claimant is malingering, the ALJ must provide 17 “specific, clear and convincing” reasons for rejecting the claimant’s testimony. Vasquez v. Astrue, [18] 572 F.3d 586, 591 (9th Cir. 2009). The Ninth Circuit has reaffirmed the “specific, clear and 19 convincing” standard applicable to review of an ALJ’s decision to reject a claimant’s testimony. 20 See Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014). 21 2. Analysis 22 The ALJ partially rejected Plaintiff’s testimony as to the severity of her symptoms on the 23 grounds that it is inconsistent with the objective medical evidence and with Plaintiff’s self-reported 24 activities of daily living. The ALJ’s reasoning with respect to the medical record is the same as the 25 court examined above with respect to Dr. Schadendorf’s opinion and is rejected for the same reason. 26 On remand, the ALJ should consider whether Plaintiff’s statements concerning the intensity, 27 persistence, and limiting effects of her symptoms are credible in light of SSR 03-2p’s guidance on 1 that diagnosis. 2 As for Plaintiff's activities of daily living, the ALJ wrote that Plaintiff professed an inability 3 to drive and yet drives her son to school every day, and testified that she cannot use her arms but 4 |} still does dishes and computer work. A.R. 29. The ALJ mischaracterized Plaintiff's testimony. She 5 did not testify that she was completely unable to drive or use her arms, only that such activities 6 || exacerbate her pain and that she cannot sustain them for prolonged periods. See A.R. 85-86. This 7 testimony is consistent with her reports that she drops off and picks up her son from school (2 miles 8 away) and karate practice (4 miles away) and feels pain doing any type of computer work or washing 9 || dishes. A.R. 87, 305, 440. 10 Accordingly, the ALJ did not offer clear and convincing reasons to discredit □□□□□□□□□□□ 11 testimony. 12 C. Remaining Arguments 5 13 Plaintiff argues that the ALJ erred in assessing her RFC and eliciting testimony from the VE. 14 || The court does not reach this argument in light of its determination that the ALJ erred in weighing 3 15 || the medical opinions and in assessing Plaintiffs credibility. These errors were not harmless because a 16 || they could impact the ALJ’s determination on other steps of the analysis. For example, if the ALJ 3 17 assigns different weight to the medical opinions or credits Plaintiff's testimony, he may assess a S 18 more restrictive RFC and pose different hypotheticals to the VE. 19 On remand, the ALJ should revisit these issues and make findings consistent with this order 20 and the regulations. 21 || VI. CONCLUSION 22 For the reasons stated above, Plaintiff's motion for summary judgment is granted and the 23 Commissioner’s cross motion is denied. The clerk shall enter judgment for Plaintiff and against 24 || Defendant and close this case. 25 IT IS SO ORDERED. 26 Dated: December 22, 2020 pyre — 27 DONNA M. RYU 28 United States Magistrate Judge