Muniz v. Kijakazi

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION [7] 8 TINA M. MUNIZ, Case No. 5:22-cv-02074-EJD 9 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 10 v. MOTION FOR SUMMARY JUDGMENT; DENYING 11 KILOLO KIJAKAZI, COMMISSIONER’S CROSS-MOTION FOR SUMMARY JUDGMENT Defendant. [12] Re: ECF Nos. 14, 19 [13] Plaintiff Tina M. Muniz (“Plaintiff”) brings this civil action pursuant to 42 U.S.C. § 405 (g) [14] to obtain review of the Social Security Administration Commissioner’s (the “Commissioner”) [15] partially favorable decision finding Plaintiff disabled beginning on December 11, 2020. [16] Before the Court is Plaintiff’s motion for summary judgment seeking a finding of disability [17] and an award of benefits for the period of September 16, 2017 to December 10, 2020. See ECF [18] No. 14-1 (“MSJ”). The Commissioner opposes Plaintiff’s motion and filed a cross-motion for [19] summary judgment seeking that the Court affirm the Commissioner’s final decision. See ECF No. [20] 19 (“Cross-MSJ”). For the reasons discussed below, the Court GRANTS IN PART AND [21] DENIES IN PART Plaintiff’s motion and DENIES the Commissioner’s cross-motion. [22] I. BACKGROUND [23] On December 5, 2017, Plaintiff filed applications for Social Security Disability Insurance [24] (“SSDI”) benefits and Supplemental Security Income (“SSI”) disability benefits pursuant to Titles [25] II and XVI of the Social Security Act. ECF Nos. 12-2–12-25, Transcript of Administrative [26] Record (“Tr.”) 213–24, 216–24. Plaintiff’s disability began on September 6, 2017. Tr. 214, 216. [27] Case No.: 5:22-cv-02074-EJD 1 Plaintiff was 46 years old at the time. Plaintiff alleged that she was unable to work due to 2 fibromyalgia, chronic pain, depression, CTS, and arthritis. Tr. 149. 3 On March 9, 2018, the Social Security Administration (“SSA”) denied Plaintiff’s SSI and 4 SSDI claims. Tr. 140–44. Plaintiff requested reconsideration of the decisions on April 25, 2018. 5 Tr. 148. On review, the SSA again denied SSI disability benefits, finding that Plaintiff’s medical 6 evidence shows that “[her] condition results in some limitations in [her] ability to perform work 7 related activities” but that it “is not severe enough to keep [her] from working.” Tr. 149–53. 8 Plaintiff timely requested a hearing following denial of reconsideration. Tr. 156–58. 9 An administrative hearing was held on September 17, 2019 before Administrative Law 10 Judge (“ALJ”) Ruxana Meyer. Tr. 172. On October 22, 2019, Plaintiff received an unfavorable 11 decision. Tr. 12–28. The ALJ determined that Plaintiff could perform light work, except standing 12 and walking, for 4 hours per day despite Plaintiff’s impairments of chronic pain, carpel tunnel, and 13 arthritis. Tr. 22, 25. This decision was based on the ALJ’s finding that, although the medical 14 evidence supports that Plaintiff has severe impairments, it does not support the degree of 15 limitation alleged. Tr. 22–23. 16 Plaintiff initiated a civil action before Magistrate Judge Ryu, Case No. 4:20-CV-05848 17 and, on May 26, 2021, the court granted the stipulation between Plaintiff and the Commissioner to 18 remand the matter for further proceedings pursuant to sentence four of 42 U.S.C. § 405 (g). Tr. 19 1403–05. The Appeals Council accordingly vacated the Commissioner’s final decision and 20 remanded Plaintiff’s case to an ALJ. Tr. 1408–09. The hearing was held on November 2, 2021, 21 after which ALJ Meyer issued a partially favorable decision on December 8, 2021. Tr. 1308–29, 22 1443, 1448. The ALJ determined that Plaintiff has been disabled since December 11, 2020, but 23 not prior to the established disability onset date. Tr. 1328. Because Plaintiff’s medical provider 24 deemed Plaintiff capable of returning to work on July 7, 2021, a continuing disability review was 25 recommended in 18 months’ time. Tr. 1329. 26 On March 31, 2022, Plaintiff commenced this action pursuant to §§ 405(g), 1383(c) [27] Case No.: 5:22-cv-02074-EJD 1 seeking reversal or remand of the Commissioner’s decision and arguing that the findings are not 2 supported by substantial evidence. ECF No. 1. 3 II. LEGAL STANDARD 4 A. Standard of Review 5 The Social Security Act authorizes a district court to review decisions made by the 6 Commissioner. 42 U.S.C. § 405 (g). A court has jurisdiction over social security appeals when a 7 plaintiff files the appeal within 60 days. 42 U.S.C. § 405 (g). The court’s jurisdiction, however, is 8 limited. Brown-Hunter v. Colvin, 806 F. 3d 487, 492 (9th Cir. 2015). A district court may only 9 reverse the decision if it is not supported by substantial evidence or if the decision was based on 10 legal error. Id.; Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). 11 “Substantial evidence means more than a scintilla but less than a preponderance.” Thomas, 12 278 F. 3d at 954 (citing Jamerson v. Chater, 112 F. 3d 1064, 1066 (9th Cir. 1997)). This standard 13 requires relevant evidence that a “[r]easonable mind might accept as adequate to support a 14 conclusion.” Vertigan, 260 F.3d at 1049 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 15 “Where the evidence is susceptible to more than one rational interpretation, one of which supports 16 the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas, 278 F.3d at 954. However, 17 if legal error occurred in the administrative process or if the administrative decision is not 18 supported by substantial evidence, the decision may be set aside. Treviso v. Berryhill, 871 F.3d 19 664, 676 (9th Cir. 2017). 20 B. Standard for Determining Disability 21 Disability is the “inability to engage in any substantive gainful activity by reason of any 22 medically determinable physical or mental impairment which can be expected to result in death or 23 which has lasted or can be expected to last for a continuous period of not less than twelve 24 months.” 42 U.S.C. § 423 (d)(1)(A). The impairment must be so severe that an applicant is unable 25 to do her previous work, and cannot “engage in any other kind of substantial gainful work which 26 exists in the national economy,” given the applicant's age, education, and work experience. 42 [27] Case No.: 5:22-cv-02074-EJD 1 U.S.C. § 423 (d)(2)(A). 2 In making a disability determination for disability benefits or supplemental security 3 income, the SSA follows a five-step “sequential evaluation process” to evaluate a claimant’s 4 ability to do other work. 20 C.F.R. §§ 404.1520 , 416.920. 5 1) The first step considers whether the claimant is engaged in “substantial gainful 6 activity.” Id. §§ 404.1520(i), 416.920(4)(i). If a claimant is currently employed, and 7 the work is considered “substantial gainful activity,” then the SSA will find the 8 claimant not disabled “regardless of [claimant’s] medical condition or [their] age, 9 education, and work experience.” Id. §§ 404.1520(b), 416.920(b). 10 2) At the second step, the SSA considers whether the claimant has a “severe medically 11 determinable physical or mental impairment,” meaning “any impairment or 12 combination of impairments which significantly limits [claimant’s] physical or mental 13 ability to do basic work activities.” Id. §§ 404.1520(c), 416.920(c). If the impairment 14 is not severe, there is no finding of disability. Id. 15 3) At step three, the SSA considers whether the claimant “meets the duration requirement 16 and is listed in appendix 1 or is equal to a listed impairment(s),” in which case the 17 claimant will be found disabled. Id. §§ 404.1520(d); 416.920(d). 18 4) For a claimant whose impairments do not meet or equal an impairment on the list, the 19 SSA will assess their “residual functional capacity” (“RFC”) and compare it with the 20 physical and mental demands of claimant’s past relevant work. Id. §§ 404.1520(e); 21 416.920(e). If a claimant can still do past relevant work, they are not disabled. Id. §§ 22 404.1520(f); 416.920(f). 23 5) At the final step, claimants whose impairments prevent them from doing past relevant 24 work will be evaluated under the same RFC assessment with their vocational factors, 25 i.e., age, education, and work experience, to determine whether the claimant can make 26 an adjustment to other work. Id. §§ 404.1520(g)(1); 416.920(g)(1). Those who cannot [27] Case No.: 5:22-cv-02074-EJD 1 make an adjustment to other work will be found “disabled.” 2 “The [claimant] carries the initial burden of proving a disability.” Ukolov v. Barnhart, 420 3 F.3d 1002, 1004 (9th Cir. 2005). Consequently, the burden of proof is on the applicant as to steps 4 one to four. As to step five, the burden shifts to the Commissioner. Tackett v. Apfel, 180 F.3d 5 1094, 1098 (9th Cir. 1999). If an applicant is found to be “disabled” or “not disabled” at any step 6 in the sequence, there is no need to consider subsequent steps. Id. If the applicant proves a prima 7 facie case of disability, the burden shifts to the Commissioner to establish that the applicant can 8 perform a “significant number of other jobs in the national economy.” Thomas, 278 F.3d at 955. 9 “The Commissioner can meet this burden through the testimony of a vocational expert or by 10 reference to the Medical Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” Id. 11 III. THE ALJ’S FINDINGS 12 At step one, the ALJ found that Muniz did not engage in substantial gainful activity during 13 the relevant period. Tr. 1315. 14 At step two, the ALJ found that since the alleged onset of disability Muniz suffers from the 15 following impairments, which are “severe in combination” and limit Muniz’s ability to perform 16 basic work activities: 17 [O]besity with history of 2007 gastric bypass; osteoarthritis of left knee; bursitis of right trochanteric bursa; fibromyalgia; and bilateral 18 carpal tunnel syndrome status-post January 2019 right side carpal tunnel release and status-post left-side October 2019 release; 19 degenerative disc disease of the lumbar spine without stenosis; diabetes mellitus; hypothyroidism; asthma; major depressive 20 disorder, and anxiety disorder. Id. (citations omitted). [21] At step three, the ALJ found Muniz’ impairments, individually or in combination, do not [22] meet or equal any listed impairments. Tr. 1316. The ALJ determined that Muniz has the RFC to [23] perform “an eroded range of sedentary work,” meaning Muniz can: [24] [L]ift and carry up to 20 pounds occasionally and 10 pounds 25 frequently; sit for about 6 hours total in an 8-hour workday; stand and walk for not more than 4 hours cumulatively, and after one hour of 26 standing/walking must have the option to sit for 5 minutes while remaining on task. The claimant can occasionally balance, stoop, and [27] Case No.: 5:22-cv-02074-EJD climb ramps and stairs, but cannot climb ladders, ropes, or 1 scaffolding, work near hazards such as at unprotected heights or close to dangerous moving machinery, nor kneel, crouch, or crawl. The 2 claimant can frequently perform handling, fingering, and feeling tasks, and should not more than occasionally be exposed to 3 pulmonary irritants such as fumes, odors, or dusts. In addition, the claimant can perform simple work with no production pace such as 4 assembly line work. 5 Tr. 1317–18. 6 At step four, the ALJ found that Muniz could not return to her past relevant work as a bus 7 driver or cashier since the alleged date of her disability onset on September 6, 2017. Tr. 1326. 8 At step five, the ALJ found that on December 11, 2020, Muniz’s age category changed to 9 an individual of advanced age pursuant to 20 C.F.R. §§ 404.1563 and 416.963, and therefore 10 found her “disabled” on that date through the date of the decision because “there are no jobs that 11 exist in significant numbers in the national economy that the claimant could perform.” Tr. 1327– 12 28. In reaching this conclusion the ALJ applied Medical-Vocational Rule 201.19, which provides 13 that a person with “limited or less” education and unskilled previous work experience who is 14 closely approaching advanced age (ages 50-54) is considered disabled. See 20 C.F.R. § 404.1563 . 15 However, the ALJ concluded that there were jobs that existed in significant numbers in the 16 national economy prior to the date that Muniz’s age category changed on December 11, 2020 that 17 she could have performed. Tr. 1327. Based on the testimony of the vocational expert (“VE”), the 18 ALJ found Muniz could perform three occupations prior to December 11, 2020: Lens Gauger 19 (DOT # 716.687-030) with 23,000 U.S. jobs; Addressor (DOT # 209.587-010) with 48, 000 U.S. 20 jobs; and Table Worker (DOT # 739.687-182) with 24,000 U.S. jobs. Tr. 1328; see Tr. 1366. 21 IV. DISCUSSION 22 Muniz argues that in reaching the decision the ALJ: (1) failed to properly consider Muniz’s 23 mental impairments in the RFC; (2) improperly equated mental status examinations with a less 24 limited degree of a Major Depressive Disorder; (3) improperly relied on the absence of 25 hospitalizations or psychiatrist holds in assessing the severity of Muniz’s mental impairments; and 26 (4) failed to properly consider that Muniz suffers from chronic pain syndrome. The Court [27] Case No.: 5:22-cv-02074-EJD 1 considers each argument in turn. 2 A. The ALJ Did Not Properly Consider Plaintiff’s Moderate Limitation in Concentrating and Coping with Stress in her RFC. [3] First, Muniz asserts that the ALJ erred at step five by failing to properly address the impact [4] of a moderate limitation in concentration and coping with the usual stress in a work setting on [5] Muniz’s ability to perform work activity on a regular and sustained basis. [6] “[T]he ALJ is responsible for translating and incorporating clinical findings into a succinct [7] RFC.” Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). “Where an [8] ALJ accords substantial or great weight to a physician’s opinion, he must either incorporate their [9] findings into the RFC or offer an explanation for why he chose not to accept them.” Wascovich v. [10] Saul, No. 2:18-CV-659-EFB, 2019 WL 4572084 , at *3 (E.D. Cal. Sept. 20, 2019) (citing Rounds, [11] 807 F.3d at 1006 ). [12] In assessing Muniz’s mental impairments (anxiety and depression), the ALJ considered [13] and weighed the testimony of the mental evaluators and physicians. The ALJ found the State [14] consultative psychologist Janine Marinos, Ph.D’s assessment persuasive. Marinos conducted a [15] psychological evaluation of Muniz on February 16, 2018. Tr. 417. Marinos opined that “the [16] claimant appeared able to understand, remember, and carry out simple job instructions and interact [17] appropriately with others, but may have moderate difficulty maintaining concentration and coping [18] with usual stresses in a job setting.” Tr. 1324. The ALJ found this assessment to be persuasive [19] given Muniz’s history of anxiety and severe depression and stated that the moderate mental [20] limitations “would reasonably support limitations in stress and complexity of work, as adopted [21] into the residual functional capacity finding.” Tr. 1325. [22] Despite the ALJ purportedly adopting the mental limitations recommended by Marino, the [23] parties dispute whether the RFC reflects these limitations. The decision describes the RFC as [24] follows: [25] [S]ince September 6, 2017, the claimant has the residual functional 26 capacity to perform as eroded range of sedentary work as defined in 20 CFR 404.1567(b) and 416.967(b) . . . . In addition, the claimant 27 can perform simple work with no production pace such as Case No.: 5:22-cv-02074-EJD assembly line work. [1] Tr. 1317–18 (emphasis added). The issue lies in the final sentence of the RFC finding that “the [2] claimant can perform simple work with no production pace such as assembly line work.” Muniz [3] contends that this sentence fails to incorporate the mental limitations the ALJ claimed to adopt. [4] Specifically, Muniz contends that the ALJ failed to address any of the specific abilities [5] provided in Social Security Ruling (“SSR”) 85–15, which provides a framework for evaluating [6] nonexertional impairments, such as mental, hearing, or visual impairments, stress, and mental [7] illness. MSJ 12–13. See SSR 85–15. Although “Social Security Rulings do not have the same [8] force and effect as the statute or regulations, they. . . are to be relied upon as precedents in [9] adjudicating cases.” Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (quoting 67 Fed. Reg. at [10] 57860). SSR 85-15 states that individuals suffering from mental illness may “have difficulty [11] accommodating to the demands of work and work-like settings” and therefore a person’s ability to [12] cope with stress in the workplace is “highly individualized” and requires “thoroughness in [13] evaluation on an individualized basis.” Id. at 5. Because responses to work stressors are so [14] individualized, “the mentally impaired may have difficulty meeting the requirement of even so15 called ‘low stress’ jobs.” Id. Thus, SSR 85-15 requires that impairment-related limitations arising [16] from an individual’s response to the demands of work are reflected in the RFC assessment. Id. [17] Muniz asserts that the ALJ did not properly consider how her mental limitations—her [18] moderate difficulty concentrating and coping with usual job stresses—would impact her work [19] capabilities; rather, the ALJ interpreted “moderate difficulty” to mean that Muniz could perform [20] unskilled work with no assembly lines. MSJ 14. While an ALJ need not “explicitly transcribe the [21] limitation in the RFC,” the ALJ must “account for it in [their] ‘translation.’” Wascovich, 2019 22 WL 4572084 , at 3. The Commissioner argues that the last sentence properly considers her mental [23] limitations. Cross-MSJ 2. However, Muniz contends that, as explained by SSR 85-15, skill level [24] does not necessarily dictate the stress level for an individual suffering from mental illness. Id. [25] Muniz asserts that the RFC fails to reflect her mental limitations by considering only “unskilled [26] work with no assembly lines.” [27] Case No.: 5:22-cv-02074-EJD 1 Muniz cites Perkins v. Astrue in support of her argument that the ALJ failed to properly 2 assess her mental limitations despite purporting to adopt them in the RFC. No. 12-CV-0634-RNB, [3] 2012 WL 4755402 (C.D. Cal. Oct. 5, 2012). In Perkins, the district court found that “the ALJ 4 erred in failing to make an individualized evaluation of the effects of stress on plaintiff’s ability to 5 work and/or in failing to include this additional limitation in her RFC assessment.” Id. at 2 (citing 6 Lancellotta v. Sec. of HHS, 806 F.2d 284, 285 (1st Cir. 1986)). The court rejected the 7 Commissioner’s argument that a “preclusion of fast-paced work adequately addressed plaintiff’s 8 limitation[]” to a low-stress environment and noted that, according to SSR 85–15, “the restrictions 9 of a particular type of job and a person’s individualized ability to cope with stress from such jobs 10 should not be conflated.” Perkins, 2012 WL 4755402 at 2. This Court is persuaded by Perkins’s 11 reasoning; here, the ALJ similarly conflated Muniz’s ability to cope with stress with production 12 pace. The ALJ erred by failing to make any findings as to “the nature of [plaintiff’s] stress, the 13 circumstances that trigger it, or how those factors affect his ability to work.” Lancellotta, 806 14 F.2d at 285. 15 The Commissioner argues that Perkins is distinguishable because the doctor in Perkins 16 identified “specific limitations” in his assessment of claimant’s mental impairments; according to 17 the Commissioner, Marinos did not make specific limitation findings as to Muniz, “only a general 18 finding of a moderate limitation.” Cross-MSJ 3. The Court disagrees. Here, Marinos opined that 19 Muniz could perform “simple job instructions and interact appropriately with others,” but that 20 Muniz “may have moderate difficulty maintaining concentration and coping with usual stresses in 21 a job setting.” Tr. 1324. Marinos conveyed that Muniz’s performance at work may be moderately 22 impacted by her ability to concentrate and cope with stress. Thus, the ALJ must consider Muniz’s 23 ability to concentrate and her stressors and responses to stress-causing conditions.1 [24] 25 1 The ALJ’s second hypothetical to the VE provides further support that the ALJ intended to accommodate Plaintiff’s moderate difficulty maintaining concentration and coping with usual 26 work stress in her RFC because the ALJ asked what jobs would be available to a similarly situated individual who was also “off task 15% of the workday.” Tr. 1367; Crump v. Saul, 932 F.3d 567 , 27 570 (7th Cir. 2019) (“[T]he hypothetical posed to the VE and the ALJ’s RFC assessment must Case No.: 5:22-cv-02074-EJD 1 Citing Hoopai v. Astrue, 499 F.3d 1071 (9th Cir. 2007), the Commissioner also argues that 2 an ALJ need not provide in his RFC finding for every possible mild to moderate limitation. 3 Cross-MSJ 3. The Commissioner asserts that an ALJ is only required to “rate the degree of 4 functional limitation” using the § 404.1520(c)(3) factors: “[u]nderstand, remember, or apply 5 information; interact with others; concentrate, persist, or maintain pace; and adapt or manage 6 oneself.” 20 C.F.R. § 404.1520 (c)(3); see Hoopai, 499 F.3d at 1078 . This is incorrect; while the 7 ALJ must consider the § 404.1520(c)(3) factors, SSR 85-15 also mandates consideration of “[a]ny 8 impairment-related limitations created by an individual’s response to demands of work” in the 9 RFC assessment. See Silva v. Saul, No. 2:19-CV-06805-VEB, 2020 WL 13304057 , at *7 (C.D. 10 Cal. Sept. 29, 2020). Because the ALJ purported to adopt the recommended mental limitations in 11 the RFC assessment, the ALJ must make specific findings as to these limitations; the ALJ erred by 12 failing to do so. 13 1. The ALJ’s Error Was Not Harmless. 14 Since the Court has determined “that the agency erred in some respect in reaching a 15 decision to deny benefits,” the Court must now decide whether the error was harmless. Hoa Hong 16 Van v. Barnhart, 483 F.3d 600, 605 (9th Cir. 2007) (alterations omitted). The Commissioner 17 contends that, even if the Court finds the ALJ erred, such error was harmless. Cross-MSJ 4. 18 “A decision of the ALJ will not be reversed for errors that are harmless.” Burch v. 19 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). An ALJ’s error is “harmless” when it is “it is 20 inconsequential to the ultimate nondisability determination.” Treichler v. Comm’r of Soc. Sec. 21 Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quotations and citation omitted). “A reviewing 22 court may not make independent findings based on the evidence before the ALJ to conclude that 23 the ALJ’s error was harmless.” Brown-Hunter, 806 F.3d at 492 . Rather, the court is “constrained 24 to review the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). [25] 26 incorporate all of the claimant’s limitations supported by the medical record, including even moderate limitations in concentration, persistence or pace.”) (quotations and citation omitted). [27] Case No.: 5:22-cv-02074-EJD 1 Here, it is clear from the decision that the ALJ intended to adopt Marino’s assessed mental 2 limitations into Muniz’s RFC. See Tr. 1325. For the reasons discussed above, the ALJ failed to 3 properly incorporate Muniz’s mental limitations. Muniz contends that her limitations relating to 4 moderate difficulty maintaining concentration and coping with usual stress in a work setting 5 translate to a person spending about 15 percent of the workday off task, which would render her 6 unemployable. MSJ 13. She draws this conclusion from the testimony of the VE, who, in 7 considering the second hypothetical posed by the ALJ in which an individual was the same age 8 and had all the same physical limitations as Muniz in addition to “be[ing] off task 15% of the 9 workday,” concluded that such limitations “would essentially render that person unemployable.” 10 Tr. 1367. Despite the VE’s testimony, the ALJ found that there were three jobs in the national 11 economy “with no production pace such as assembly line work” that Muniz could perform prior to 12 December 2020. 13 Muniz seems to suggest that, had the ALJ properly included Muniz’s mental impairments 14 in the RFC, the VE’s testimony that a similarly situated individual who spent 15 percent of the 15 workday off task is “unemployable” means that there were no jobs that exist in significant 16 numbers in the national economy that Muniz could perform from her disability onset date through 17 December 10, 2020. Under these circumstances, the ALJ would have found Muniz disabled at 18 step five of the analysis and therefore the error would not be harmless. 19 B. The Evidence Supports the ALJ’s Finding Regarding Plaintiff’s Mental Impairments. [20] Next, Muniz argues that the ALJ improperly assessed Muniz’s mental impairments for [21] several reasons. MSJ 15–17. [22] 1. Lack of Psychiatric Hospitalizations or Crisis Holds [23] First, Muniz argues that the ALJ improperly assessed the severity of her mental [24] impairment by relying on the absence of hospitalizations or psychiatric holds. MSJ 17. Marino [25] reported Muniz has never been psychiatrically hospitalized. Tr. 416. In determining that “greater [26] or more restrictive mental limitations are not persuasively supported by the overall medical [27] Case No.: 5:22-cv-02074-EJD 1 evidence,” the ALJ reasoned that “the record does not document greater psychiatric intervention 2 such as hospitalization or psychiatric crisis holds.” Tr. 1325. Muniz contends that the fact that 3 she was not hospitalized or placed in a psychiatric crisis hold does not necessarily mean that she 4 does not have a mental impairment that would impact her ability to work. Id. 5 The Ninth Circuit permits “evidence of ‘conservative treatment’ . . . to discount a 6 claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742 , 751 7 (9th Cir. 2007). Conservative treatment may include over-the-counter medication, for example. 8 Matthews v. Astrue, No. 11-CV-01075-JEM, 2012 WL 1144423 , at *9 (C.D. Cal. Apr. 4, 2012). 9 However, “[c]ourts in this circuit have found that psychiatric hospitalization is not a benchmark 10 for conservative treatment.” P.E. v. Saul, 445 F. Supp. 3d 306 , 334 (N.D. Cal. 2020) (citing 11 Morales v. Berryhill, 239 F. Supp. 3d 1211, 1216 (E.D. Cal. 2017) (“A claimant may suffer from 12 mental health impairments that prevent him from working but do not require psychiatric 13 hospitalization.”)). Any findings by the ALJ with respect to the severity of Muniz’s anxiety and 14 depression may not be based solely on Muniz’s lack of psychiatric hospitalization. See Le v. 15 Astrue, 318 Fed.Appx. 552, 554 (9th Cir. 2009). 16 Here, the ALJ did not rely solely on Muniz’s lack of psychiatric intervention. The ALJ 17 considered all of the evidence regarding Muniz’s depression and anxiety symptoms, medication, 18 and treatment. The decision notes that Muniz: has a history of childhood abuse, Tr. 1318; has 19 documented “mental health treatment for symptoms of depression with depressed mood since at 20 least 2017,” id.; has reported “significant depression and insomnia,” id.; has relayed “passive 21 suicidal ideation without intent,” id. at 1319; has a “PHQ-9 score of ‘19’” representing 22 “moderately severe” depression, id.; takes Wellbutrin daily, id. at 1326; experiences panic attacks 23 and gets scared, id.; and that Muniz has “not seen her psychological specialist since 4-5 months 24 ago, and that she was talking with her mother instead of using professional help,” id. 25 After considering Muniz’s mental evaluations, the ALJ determined that her “symptoms are 26 appropriately addressed by mental health treatment appointments and medication.” Tr 1325. The [27] Case No.: 5:22-cv-02074-EJD 1 Ninth Circuit has held that “impairments that can be controlled effectively with medication are not 2 disabling for the purpose of determining eligibility for SSI benefits.” Warre v. Comm’r Soc. Sec., [3] 439 F.3d 1001, 1006 (9th Cir. 2006). 4 Given Muniz’s minimal mental health treatment consisting of anti-depressant medication 5 and appointments with her psychiatrist and considering Muniz’s mental evaluations were “within 6 normal limits,” the ALJ could have adopted the opinion of the state examiner who found that 7 Muniz is “moderately limited” with respect to her ability to concentrate and cope with usual stress 8 but concluded that greater or more restrictive mental limitation findings were not warranted. 9 2. Mental Evaluations Within Normal Limits 10 Second, Muniz argues that the ALJ improperly assessed her mental impairment by 11 focusing on the latter observation and equating her “normal” mental status reports with her ability 12 to function and the degree to which she is impaired. MSJ 15. 13 On more than one occasion the ALJ relied on mental evaluation progress notes to 14 determine the severity of her mental impairment. For example, the decision notes that: 15 • “In mental status evaluations, the claimant consistently demonstrated good eye contact, with normal speech.” Tr. 16 1317. • “Mental status evaluations were mostly within normal limits, 17 but did at times indicate rambling speech with depressed and anxious mood (Ex. 4F, p. 9).” Tr. 1318. [18] • “At a May 3, 2018 mental health appointment the claimant 19 was observed to be ‘tearful’ with depressed and anxious mood, but otherwise, mental status evaluation was within 20 normal limits.” Tr. 1319. Muniz contends that these examinations are “not an assessment of a claimant’s ability to function [21] in a work setting on a regular and continuing basis.” Id. at 16. The Commissioner argues, [22] however, that Muniz as not shown that the ALJ’s finding is not supported by substantial evidence [23] because evaluations of Muniz’s mental status prior to December 2020 “indicate largely normal [24] findings.” Cross-MSJ 3–4 (citing Tr. 416, 427, 1317–18). [25] It has long been established that “[i]n analyzing a mental impairment. . . the Secretary must [26] consider the evidence in the case record—the mental status examination and psychiatric history.” [27] Case No.: 5:22-cv-02074-EJD 1 Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994), as modified on reh’g (Apr. 7, 1994). As long 2 as the treatment note observations are “read in context of the overall diagnostic picture the 3 provider draws” and consistent with this broader picture, the ALJ may properly rely on them. 4 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (quotations and citation omitted). 5 The notes taken during Muniz’s mental evaluations support the ALJ’s finding that on 6 balance her evaluations were within normal limits and the record did not support a finding of 7 greater or more restrictive mental impairments. During Muniz’s evaluation in May 2018, Swetha 8 Vajapay, PsyD, reported that Muniz was experiencing a recurrent episode of Major Depressive 9 Disorder but that she appeared well groomed and healthy, that her demeanor was pleasant, 10 cooperative, and her speech was rambling but otherwise normal. Tr. 423, 427, 1318. Although 11 she was tearful, her evaluation was within normal limits. Tr. 427, 1318. Marino similarly 12 reported that Muniz appeared well-dressed and groomed, maintained good eye contact, and was 13 alert and fully oriented during her evaluation. Tr. 416. Marino also reported that Muniz’s 14 “thinking was linear and goal-directed,” her speech was fluent and clear, and Muniz was otherwise 15 cooperative and pleasant. Id. Based on her assessment, Muniz had moderate limitations with 16 respect to her ability to concentrate and cope with stress but she could otherwise “understand, 17 remember, and carry out simple job instructions and interact appropriately with others.” Tr. 418. 18 Accordingly, Muniz has not shown that the ALJ’s finding that her mental evaluations were 19 within normal limits were in error or that the ALJ improperly relied on these evaluations in 20 making her determination. 21 3. IQ Score 22 Finally, Muniz argues that the ALJ improperly assessed her mental impairment by 23 equating Muniz’s full-scale IQ score to the degree of severity of her mental impairments. MSJ 16. 24 The ALJ wrote “despite the one-time full-scale IQ score, the claimant appeared able to understand, 25 remember, and carry out simple job instructions and interact appropriately with others, but may 26 have moderate difficulty maintaining concentration and coping with usual stresses in a job setting” [27] Case No.: 5:22-cv-02074-EJD 1 (Tr. 1324). Muniz asserts that appropriate tests to assess anxiety or depression include the 2 Minnesota Multiphasic Personality Inventory, the Beck Anxiety Inventory, and the Beck 3 Depression Inventory—none of which Marino used during Muniz’s assessment. Id. at 17. 4 However, Muniz cites no case that holds an ALJ may not consider mental exams and IQ tests in 5 addition to the other medical evidence in the record. 6 Accordingly, Muniz has failed to show that the ALJ’s findings are not supported by the 7 substantial evidence in the record. 8 C. The ALJ Provided “Clear and Convincing” Reasons for Rejecting Plaintiff’s Testimony. [9] Next, Muniz argues that the ALJ improperly rejected Muniz’s subjective testimony about [10] the extent and severity of her symptoms. MSJ 22. [11] “The ALJ is responsible for determining credibility and resolving conflicts in medical [12] testimony.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (citing Allen v. Heckler, 749 13 F.2d 577, 579 (9th Cir. 1984)). In assessing credibility, the ALJ must first determine “whether the [14] claimant has presented objective medical evidence of an underlying impairment ‘which could [15] reasonably be expected to produce the pain or other symptoms alleged.’” Treichler v. Comm'r of [16] Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 17 1028, 1036 (9th Cir. 2007)). Then, if there is no evidence of malingering, “the ALJ can reject the [18] claimant’s testimony about the severity of [her] symptoms only by offering specific, clear and [19] convincing reasons for doing so.” Smolen v. Chater, 80 F.3d at 1281. These reasons must be [20] “sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [21] claimant’s testimony.” Thomas, 278 F.3d at 958. However, “once the claimant produces [22] objective medical evidence of an underlying impairment, an adjudicator may not reject a [23] claimant’s subjective complaints based solely on a lack of objective medical evidence to fully [24] corroborate the alleged severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). [25] An “ALJ must specifically identify the testimony she or he finds not to be credible and [26] must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195 , [27] Case No.: 5:22-cv-02074-EJD 1 1208 (9th Cir. 2001). This ensures that “the claimant’s testimony is not rejected arbitrarily.” 2 Brown-Hunter, 806 F.3d at 489 . To determine the credibility of a claimant’s testimony regarding 3 the severity of his or her symptoms, the Court should assess: “(1) ordinary techniques of 4 credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements 5 concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) 6 unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of 7 treatment; and (3) the claimant’s daily activities.” Ghanim, 763 F.3d at 1163 (quoting Smolen v. 8 Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)). 9 1. Plaintiff’s Testimony Regarding Physical Impairments 10 Muniz argues that the ALJ cited general objective medical evidence as contradicting 11 Muniz’s alleged limitations but did not identify findings inconsistent with any of the specific 12 functional deficits Muniz described. MSJ 23. However, the Commissioner argues that the ALJ 13 properly considered the medical evidence and Muniz’s behaviors in evaluating Plaintiff’s 14 testimony. Cross-MSJ 8. The Court agrees. 15 The ALJ identified which testimony regarding Muniz’s alleged physical impairments that 16 she found not credible and why. For example, the ALJ found that there was a “lack of clinical 17 findings to objectively quantify severity” of Muniz’s sleep disorder; “no objective medical signs 18 or laboratory findings to support a medically determinable impairment for the claimant’s left 19 shoulder;” that Muniz at times conflated chronic pain syndrome with reflex sympathetic dystrophy 20 (“RSD”) syndrome or complex regional pain syndrome (“CRPS”), and the record does not 21 document RSD or CRPS; that her hypertension and high cholesterol were resolved by gastric 22 bypass; and that her “left foot impairment circa November 2020, is not a durational medically 23 determinable impairment.” Tr. 1325. 24 Plaintiff also argues that the ALJ “parsed and conflated” Muniz’s testimony of her ability 25 to engage in housework and other activities of daily living as indicative of her ability to perform 26 sustained work. MSJ 21. The Ninth Circuit holds that although “a claimant need not vegetate in a [27] Case No.: 5:22-cv-02074-EJD 1 dark room in order to be eligible for benefits, the ALJ may discredit a claimant’s testimony when 2 the claimant reports participation in everyday activities indicating capacities that are transferable 3 to a work setting.” Molina v. Astrue, 674 F.3d 1104 , 1112–13 (9th Cir. 2012) (quotations and 4 citations omitted). This includes participating in daily activities that “suggest some difficulty 5 functioning,” which “may be grounds for discrediting the claimant’s testimony to the extent that 6 they contradict claims of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1113 (9th 7 Cir. 2012) (citing Turner, 613 F.3d at 1225). 8 Here, the ALJ determined that the record contains “no evidence that the claimant cannot 9 perform her activities of daily living,” such as cooking herself meals, and that she “holds a driver’s 10 license, can drive short distances, and lives independently.” Tr. 1317, 1320. The evidence 11 supports these findings, as Plaintiff testified to engaging in daily activities, such as making herself 12 meals, and participating in recreational activities, such as camping and going on walks. Tr. 1320, 13 1326, 1642. Muniz also represented to Marino that she was able to bathe and dress herself and 14 engage in light housekeeping and meal preparation. Tr. 415. Muniz’s appearance and 15 representations during her mental evaluation and parts of her testimony contradicts at least some 16 of Muniz’s testimony that her daughter must help her dress, bathe, and perform other daily 17 activities or otherwise she goes days without grooming or caring for her personal hygiene because 18 of her physical limitations. Tr. 38, 48. 19 In sum, substantial evidence supports the ALJ’s finding that Muniz’s statements 20 concerning the intensity and limiting effects of her symptoms are not fully supported by the 21 record, and the ALJ provided clear and convincing reasons for her finding. Accordingly, the ALJ 22 properly discredited Muniz’s testimony as to the severity and extent of her physical symptoms. 23 2. Plaintiff’s Testimony Regarding Mental Impairments 24 It is unclear whether Muniz suggests that the ALJ also failed to provide clear and 25 convincing reasons for rejecting her testimony about the severity and effects of mental 26 impairments. In an abundance of caution, the Court will address this argument in the context of [27] Case No.: 5:22-cv-02074-EJD 1 Muniz’s subjective testimony as well. 2 In concluding that the “intensity, persistence and limiting effects of [claimant’s] symptoms 3 are not fully supported” by the record, the ALJ considered whether Muniz had received “greater 4 psychiatric intervention” such as hospitalization or a psychiatric crisis hold, and whether Muniz’s 5 symptoms were “appropriately addressed by mental health treatment appointments and 6 medication.” Tr. 1325. 7 Although a “lack of medical evidence cannot form the sole basis for discounting pain and 8 symptom testimony, it is a factor that the ALJ can consider in his credibility analysis.” Le v. 9 Astrue, 318 F. App’x 552, 555 (9th Cir. 2009) (quotations and citation omitted) (cleaned up). As 10 previously discussed, the ALJ did not solely rely on Muniz’s lack of psychiatric hospitalization or 11 psychiatric holds in reaching her credibility determination. See supra Section IV.B.1. The ALJ 12 also considered and concluded that Muniz’s depression and anxiety were properly addressed by 13 mental health treatment. The ALJ’s conclusion is supported by the evidence supported by 14 substantial evidence in the record. Muniz testified that she had been seeing a psychologist before 15 the pandemic and takes antidepressants daily. Tr. 1364. She had a few follow up appointments 16 since then but has been recently speaking to her mother rather than seeing a mental health 17 provider. Tr. 1364, 58–59. Muniz represented to the ALJ that speaking to professionals helped 18 and that she had schedule an appointment with her psychiatrist the following month. Tr. 59. 19 Given the evidence in the record, the ALJ could have adopted the moderate limitations assessed by 20 Marino and concluded that the extent and severity of Muniz’s alleged mental impairments were 21 not supported by the evidence. 22 Accordingly, substantial evidence likewise supports the ALJ’s finding that Muniz’s 23 statements concerning the intensity and limiting effects of her are not fully supported by the 24 record, and the ALJ provided clear and convincing reasons for her finding. 25 D. The ALJ Correctly Evaluated Plaintiff’s Fibromyalgia and/or Chronic Pain Syndrome. [26] Finally, Muniz contends that the ALJ incorrectly evaluated Muniz’s fibromyalgia and/or [27] Case No.: 5:22-cv-02074-EJD 1 chronic pain syndrome, and that this error was not harmless. MSJ 18. 2 The ALJ found that: 3 The claimant appears at times to conflate chronic pain syndrome (1F/3) with sympathetic dystrophy syndrome/ complex regional pain 4 syndrome, but per SSR 03-02p the conditions are not the same. The record does not document sympathetic reflex dystrophy (RSD) or 5 complex regional pain syndrome (CRPS). Tr. 1315. Muniz argues that the medical evidence contradicts this finding because Muniz was [6] diagnosed with chronic pain syndrome, prescribed medication to treat it, and even attended a [7] chronic pain syndrome program. MSJ 18. [8] Recognizing that fibromyalgia is “a complex medical condition,” the SSA promulgated [9] SSR 12-2p to provide guidance to adjudicators evaluating fibromyalgia. Before an ALJ may find [10] an individual with a medically determinable impairment of fibromyalgia as disabled, the ALJ must [11] first “ensure there is sufficient objective evidence to support a finding that the person’s [12] impairment(s) so limits the person’s functional abilities that it precludes him or her from [13] performing any substantial gainful activity,” using the criteria established in SSR 12-2p. [14] Specifically, SSR 12-2p uses the 1990 ACR Criteria for the Classification of Fibromyalgia or the [15] 2010 ACR Preliminary Diagnostic Criteria to determine whether a person has a medically [16] determinable impairment of fibromyalgia. The 1990 ACR Criteria for the Classification of [17] Fibromyalgia requires that the individual has all three of the following: (1) a history of widespread [18] pain, “that is, pain in all quadrants of the body”; (2) at least 11 positive tender points on physical [19] examination, which “must be found bilaterally (on the left and right sides of the body) and both [20] above and below the waist”; and (3) there must be “[e]vidence that other disorders that could [21] cause the symptoms or signs were excluded.” SSR 12-2p, Title II(A). The 2010 ACR Preliminary [22] Diagnostic Criteria also requires (1) a history of widespread pain; (2) “[r]epeated manifestations of [23] six or more FM symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, [24] cognitive or memory problems (“fibro fog”), waking unrefreshed, depression, anxiety disorder, or [25] irritable bowel syndrome;” and (3) “[e]vidence that other disorders that could cause these repeated [26] manifestations of symptoms, signs, or co-occurring conditions were excluded.” [27] Case No.: 5:22-cv-02074-EJD 1 Here, the ALJ applied SR 12-2p which provides that the adjudicator cannot rely upon a 2 physician’s diagnosis alone; fibromyalgia is a medically determinable impairment only “when 3 there is both a diagnosis and the elements of either the 1990 or 2010 ACR diagnostic criteria are 4 met.” Tr. 1322. The ALJ found that neither the 1990 or the 2010 ACR diagnostic criteria were 5 satisfied because “the claimant’s treating providers did not specifically rule out other causes for 6 the claimant’s symptoms or routinely documented the symptoms required by this SSR.” Tr. 1323. 7 However, the ALJ nonetheless concluded that, based on Muniz’s testimony, the fact that her 8 diagnosis predated the alleged onset date, and given the consistency of its appearance throughout 9 her medical records, “that this impairment is, in fact, a severe medically determinable impairment 10 despite an absence of specific notation of symptoms or tender points by the claimant’s providers.” 11 Tr. 1323. The ALJ then considered Muniz’s subjective symptoms and limitations as alleged, and 12 determined that to the extent that her symptoms were supported by the overall medical evidence as 13 a whole, they are addressed by the RFC. Tr. 1326. 14 Therefore, the Court cannot conclude that the ALJ failed to consider the medical evidence 15 regarding Muniz’s chronic pain and/or fibromyalgia. Substantial evidence supports the ALJ’s 16 decision and Muniz has not shown that the ALJ committed any legal error. 17 E. The Appropriate Remedy is to Remand for Further Proceedings. 18 The Commissioner argues that, should the Court overturn the SAA’s decision, the proper 19 remedy is a remand for further administrative proceedings. Cross-MSJ 10. 20 A court has discretion to remand a case either for additional evidence and findings or to 21 award benefits. Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). In cases where the SSA 22 erred in reaching its decision to deny benefits, sentence four of § 405(g) permits the court to 23 “revers[e] the decision of the Commissioner of Social Security, with or without remanding the 24 cause for a rehearing.” Id. (quotations omitted). When “the record before the agency does not 25 support the agency action, . . . the agency has not considered all relevant factors, or . . . the 26 reviewing court simply cannot evaluate the challenged agency action on the basis of the record [27] Case No.: 5:22-cv-02074-EJD 1 before it, the proper course, except in rare circumstances, is to remand to the agency for additional 2 investigation or explanation.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). 3 However, in some cases, the reviewing court may “reverse and remand a determination by the 4 Commissioner with instructions to calculate and award benefits.” Garrison, 759 F.3d at 1019. 5 This remedy is appropriate only when it is “clear from the record that a claimant is entitled to 6 benefits.” Id. 7 The Ninth Circuit applies a three-step framework to assess whether the reviewing court 8 should remand for an award of benefits rather than further proceedings. Under the “credit-as-true 9 rule, the court may remand for an award of benefits where it finds that: “(1) the record has been 10 fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ 11 has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony 12 or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ 13 would be required to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020. 14 Plaintiff requests that the Court remand for immediate payment of benefits. However, 15 there remains an outstanding issue that precludes Muniz’s request. With respect to the ALJ’s 16 finding that Muniz is moderately limited in concentration and coping with work stress, it is 17 unclear from the record before the Court if the ALJ found that a “moderate” impairment in 18 maintaining concentration and/or coping with usual work stress correlates to an individual being 19 “off task 15% of the workday,” and if so, which of Muniz’s symptoms or issues the ALJ 20 considered to cause her to be off-task 15% of the day. See Carter v. Berryhill, No. 2:17-CV21 04399, 2018 WL 4169108 , at *3 (S.D.W. Va. Aug. 30, 2018). Nothing in the decision nor in 22 Marino’s assessment indicates that Muniz’s moderate difficult concentrating renders her “off task 23 15% of the workday,” nor does Plaintiff offer any support for this number. The Court is unable to 24 provide meaningful review without an explanation to clarify exactly why the ALJ posed a 25 hypothetical using 15%. 26 Accordingly, because further administrative proceedings would serve a useful purpose and [27] Case No.: 5:22-cv-02074-EJD 1 outstanding issues remain, the appropriate remedy is to remand for further proceedings. 2 || V. CONCLUSION 3 For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART 4 || Plaintiffs motion for summary judgment. Plaintiff's motion GRANTED to the extent that 5 Plaintiff requests remand for further administrative proceedings and her request for remand for 6 || immediate award of benefits is DENIED. The Commissioner’s cross-motion for summary 7 || judgment is DENIED. 8 This Commissioner’s final decision is REVERSED and this case is REMANDED pursuant 9 to 42 U.S.C. § 405 (g) for further administrative proceedings consistent with this Order. 10 IT IS SO ORDERED. 11 Dated: December 6, 2023 [12] EDWARD J. DAVILA 14 United States District Judge [17] Z 18 [27] Case No.: 5:22-cv-02074-EJD 28 || ORDER GRATING IN PART & DEN. IN PART PL.’S MOT. FOR SUMM. J.; DEN. COMMISSIONER’S CROSS-MOT. FOR SUMM. J.