Vazquez v. Kijakazi

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 RAUL. V., Case No.: 20-cv-2014-BGS 12 Plaintiff, ORDER ON JOINT MOTION FOR 13 v. JUDICIAL REVIEW 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security,1 [ECF 19] [15] Defendant. [17] 18 I. INTRODUCTION 19 Plaintiff Raul V. (“Plaintiff”) filed a Complaint seeking judicial review of the 20 Commissioner of the Social Security Administration’s (“Commissioner” or “Defendant”) 21 denial of disability insurance benefits under the Social Security Act, (ECF 1), and the 22 Commissioner has filed the Administrative Record. (ECF 15.) 23 Pursuant to the Court’s Order, the parties have filed a Joint Motion for Judicial 24 Review. (ECF 16 (Court’s briefing Order); ECF 19 (Joint Motion).) Plaintiff seeks [26] 27 1 Kilolo Kijakazi became Acting Commissioner of Social Security on July 9, 2021 and is therefore substituted for Andrew Saul as Defendant. See 42 U.S.C. § 405 (g); Fed. R. Civ. [28] 1 reversal of the final decision denying benefits and an order for the payment of benefits or, 2 in the alternative that the Court remand the case for further administrative proceedings. 3 (ECF 19 at 5-19, 26-39, 53 (Plaintiff’s positions); ECF 19 at 19-26, 39-54 (Defendant’s 4 positions).) Plaintiff argues the Administrative Law Judge (“ALJ”) erred in rejecting 5 Plaintiff’s symptom testimony. (Id. at 5-19.) Plaintiff also argues the case must be 6 remanded for a new hearing because the final decision of the Commissioner arose from 7 an unconstitutional administrative process. (Id. at 26-39.) Defendant argues that the 8 ALJ’s decision provided valid reasons for discounting Plaintiff’s subjective complaints 9 and Plaintiff’s separation of powers argument related to the appointment of the 10 Commissioner and ALJ does not entitled him to a rehearing of his claim. (Id. at 19-26, 11 39-54.) 12 After careful consideration of the parties’ arguments, the administrative record and 13 the applicable law and for the reasons discussed below, the Court finds Plaintiff is entitled 14 to summary judgment and remand of the case to the Social Security Administration for 15 further administrative proceedings. 16 II. PROCEDURAL HISTORY 17 The following procedural history is drawn largely from the parties’ joint summary 18 of the procedural history of the case. (ECF 19 at 2.) Plaintiff’s application for disability 19 benefits was filed on February 20, 2018, alleging disability commencing on March 3, 20 2015. (AR 151-153.) The claim was denied initially on July 13, 2018 and denied on 21 reconsideration on September 26, 2018. (AR 89-94.) At Plaintiff’s request, a hearing was 22 held before an ALJ on October 23, 2019. (AR 13-42 (hearing transcript), 96-97 (request 23 for hearing), 114-136 (notices related to hearing).) The ALJ issued an unfavorable 24 decision on November 26, 2019. (AR 67-84.) Plaintiff sought and obtained Appeals 25 Council review. (AR 143-150.) On August 24, 2020, the Appeals Council issued an 26 unfavorable decision. (AR 1-9.) [28] 1 III. APPEALS COUNCIL / ALJ DECISION 2 The Appeals Council adopted the ALJ’s decision that Plaintiff was not disabled 3 and found Plaintiff was not disabled for the period of January 1, 2018 to December 2, 4 2019.2 (AR 4-7.)3 The parties provided a joint summary of the decision and the 5 application of the five-step sequential evaluation process. (ECF 19 at 3-4.) The Court 6 addresses relevant portions of the ALJ decision below in more detail but notes here that 7 at step two the ALJ found Plaintiff had the following medically determinable severe 8 impairments: “degenerative disc disease of the lumbar spine; retrolisthesis; lumbar 9 radiculopathy; chronic pain disorder; right-sided sciatica; bipolar mood disorder; 10 generalized anxiety disorder; major depressive disorder; panic disorder; and post11 traumatic stress disorder (“PTSD”)).” (AR 73; AR 6.) The ALJ found Plaintiff did not 12 meet a listing at step three. (AR 74, AR 6.) The ALJ then assessed the following residual 13 functional capacity (“RFC”): 14 After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as [15] defined in 20 C.F.R. § 404.1567 (b) except the claimant is limited to 16 occasional climbing of ramps/stairs, occasional climbing of ladders/ropes/scaffolds, and occasional balancing, stooping, kneeling, [17] crouching and crawling. In addition, the claimant is limited to 18 understanding, remembering, and carrying out simple, routine tasks, only occasional interaction with the general public, only occasional work-related, [19] non-personal, non-social interaction with coworkers and supervisors, and 20 can perform jobs requiring only simple work-related decisions. [21] (AR 6, 76.) [22] The ALJ determined at step four that Plaintiff could not do his past relevant [23] work as tune up mechanic or that kind of work. (AR 6, 79-80.) At step five, the [26] 2 Plaintiff initially claimed an onset date of March 3, 2015, but amended his onset date to 27 January 1, 2018 at his hearing before the ALJ. (AR 40 (hearing transcript); AR 4 (Appeals Council Decision noting change).) [28] 1 ALJ found Plaintiff retained the residual functional capacity to perform the work 2 of marker, assembler, and housekeeper cleaner and denied disability benefits. (AR 3 6-7, 80-81.) 4 IV. DISCUSSION 5 The parties’ raise the following two issues: (1) whether the ALJ erred in rejecting 6 Plaintiff’s testimony regarding his symptoms; and (2) whether the final decision arises 7 from an unconstitutional administrative process that requires remand for a new hearing. 8 (ECF 19.) For the reasons discussed below, the Court finds the ALJ erred in his 9 consideration of Plaintiff’s symptom testimony and remand is required on this basis. 10 Additionally, although the Court need not reach the second issue because the case is 11 already being remanded, the Court finds Plaintiff would not be entitled to a new hearing 12 based on the administrative process. The Court first addresses the ALJ’s treatment of 13 Plaintiff’s testimony regarding his symptoms. 14 A. Plaintiff’s Symptom Testimony 15 1. Parties’ Positions 16 Plaintiff argues the ALJ failed to provide any rationale for rejecting Plaintiff’s 17 symptom testimony. (ECF 19 at 8-9.) In particular, Plaintiff asserts that the ALJ erred in 18 providing only a routine and conclusory statement vaguely concluding Plaintiff’s 19 allegations regarding the severity of his symptoms were not consistent with the objective 20 evidence. (Id. at 9-10.) Plaintiff argues this was deficient because an ALJ is not permitted 21 to reject subjective pain testimony solely on the basis of objective medical evidence, and 22 the objective medical evidence supports the severity of his symptoms. (Id. at 9-13.) 23 Additionally, Plaintiff asserts that the decision lacks any connection between any portion 24 of Plaintiff’s testimony and portions of the record supporting the ALJ’s decision to reject 25 the testimony. (Id. at 10-12.) Plaintiff also argues the ALJ erred in relying on Plaintiff’s 26 activities of daily living to reject Plaintiff’s testimony because the sporadic activities 27 described do not contradict his testimony or demonstrate he can spend a substantial part 28 of the day doing activities transferable to a full-time work setting. (Id. at 13-18.) 1 Defendant counters that the ALJ properly evaluated Plaintiff’s subjective 2 complaints and found “them inconsistent with the objective medical evidence, Plaintiff’s 3 treatment history, and his admitted activities, including part-time work.” (Id. at 19.) 4 Defendant relies on the ALJ’s finding that Plaintiff’s allegations were not entirely 5 consistent with the medical evidence and notes examples where the ALJ identified 6 medical examinations showing normal findings and improvement. (Id. at 21-22.) 7 Defendant argues the ALJ’s summaries of Plaintiff’s testimony as to his back pain and 8 mental health symptoms followed by discussion of examination records showing normal 9 findings are sufficiently specific to allow the Court to conclude Plaintiff’s testimony was 10 not arbitrarily discredited. (Id. at 22-25.) Defendant also argues the ALJ did not err in 11 consideration of Plaintiff’s daily activities in discrediting his testimony regarding 12 disabling back pain and anxiety. (Id. at 24-26.) 13 2. Applicable Legal Standard 14 The ALJ must engage in “a two-step analysis to determine whether a claimant’s 15 testimony regarding subjective pain or symptoms is credible.” Trevizo v. Berryhill, 871 16 F.3d 664, 678 (9th Cir. 2017) (“We have established a two-step analysis for determining 17 the extent to which a claimant’s symptom testimony must be credited.”); Garrison v. 18 Colvin, 759 F.3d 995, 1014 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th 19 Cir. 2007)); 20 C.F.R. § 404.1529 (Describing how the Commissioner evaluates 20 symptoms, including pain); see also SSR 16-3p, 2017 WL 5180304 , at *2-3 (Detailing 21 the Commissioner’s two-step process for evaluating symptoms). 22 At the first step, “the ALJ must determine whether the claimant has presented 23 objective medical evidence of an underlying impairment which could reasonably be 24 expected to produce the pain or other symptoms alleged.” Garrison, 871 F.3d at 678. 25 When, as here, the claimant satisfies the first step and there is no determination of 26 malingering by the ALJ, “the ALJ must provide ‘specific, clear, and convincing reasons 27 for’ rejecting the claimant’s testimony regarding the severity of the claimant’s [28] 1 symptoms.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); Smith v. Kijakazi, [3] 14 F.4th 1108, 1112 (9th Cir. 2021); Garrison, 759 F.3d at 1014-15 ; Parra v. Astrue, 481 4 F.3d 742, 750 (9th Cir. 2007) (citations omitted). The Ninth Circuit “require[s] the ALJ 5 to ‘specifically identify the testimony from a claimant [the ALJ] finds not to be credible 6 and . . . explain what evidence undermines this testimony.” Treichler, 775 F.3d at 1102 ; 7 Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020) (“[T]he ALJ must identify the 8 specific testimony that he discredited and explain the evidence undermining it.”); Smolen, [9] 80 F.3d at 1284 (“The ALJ must state specifically which symptom testimony is not 10 credible and what facts in the record lead to that conclusion.”); Parra, 481 F.3d at 750 11 (“The ALJ must provide clear and convincing reasons to reject a claimant’s subjective 12 testimony, by specifically identifying what testimony is not credible and what evidence 13 undermines the claimant’s complaints.”). The ALJ’s findings must be “sufficiently 14 specific to permit the court to conclude that the ALJ did not arbitrarily discredit 15 claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 16 “If the ALJ’s finding is supported by substantial evidence, the court ‘may not 17 engage in second-guessing.’” Tommasetti, 533 F.3d at 1039 (quoting Thomas v Barnhart, [18] 278 F.3d 947, 958 (9th Cir. 2002)). “Substantial evidence is ‘such relevant evidence as a 19 reasonable mind might accept as adequate to support a conclusion.’” Id. at 1038 . “The 20 ‘evidence must be more than a mere scintilla but not necessarily a preponderance.’” Id. 21 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)). 22 In assessing a claimant’s characterization of their symptoms, the “ALJ may weigh 23 inconsistencies between the claimant’s testimony and his or her conduct, daily activities, [26] 4 Plaintiff accurately indicates, and Defendant does not dispute, that the ALJ found that 27 Plaintiff satisfied the first step. (AR 77 (“the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged [28] 1 work record” and “testimony from physicians and third parties concerning the nature, 2 severity and effect of the symptoms of which he complains.” Bray v. Comm’n of Soc. 3 Sec. Admin., 554 F.3d 1219, 1226-27 (9th Cir. 2009) and Light v. Soc. Sec. Admin., 119 4 F.3d 789, 792 (9th Cir. 1997) (citations omitted); 20 C.F.R. § 404.1529 ; SSR 16-3p at *65 8.5 6 3. Analysis 7 a) Objective Medical Evidence 8 Plaintiff argues that at no point did the ALJ identify specific testimony from 9 Plaintiff that was undermined by Plaintiff’s treatment history. (ECF 19 at 11.) Plaintiff 10 claims that the ALJ did not connect any of Plaintiff’s testimony regarding his symptoms 11 to his analysis. (Id. at 10-11.) Defendant refutes, citing the decision’s comparison 12 between the ALJ’s summary of Plaintiff’s allegations regarding pain and mental health 13 symptoms and the objective findings in the record. (Id. at 22.) 14 The ALJ first summarized Plaintiff’s testimony: 15 At the hearing, the claimant testified that he currently works part-time doing automotive and handyman work. The claimant testified he has low back pain [16] which causes leg numbness. He has received epidural injections. He has pain 17 with bending and difficulty putting on his shoes. As for his activities of daily living, the claimant can help clean up his home. He also uses a computer to [18] sell things on eBay. The claimant estimates he can lift and/or carry 25-25 19 pounds, stand for 20 minutes at a time and sit for 30 minutes at a time. As [21] 5 The Court notes that some cases articulating the analysis under the second step use the [22] term credibility, and SSR 16-3p explicitly removed the term “credibility” from the 23 Commissioner’s sub-regulatory policy. However, the Ninth Circuit has explained that SSR 16-3p “makes clear what our precedent already require: the assessments of an [24] individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence 25 of symptoms after the ALJ finds that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,” not to [26] delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” 27 Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16-3p). Regardless of the use of the term credibility, the Court’s application of Ninth Circuit authority here is consistent with [28] 1 for his mental impairments, the claimant complains of anxiety and not wanting to be around people. He has seen a mental health provider one a [2] month for the past seven months. [3] (AR 77)6 [4] After this summary of Plaintiff’s testimony, the ALJ indicated Plaintiff’s back pain [5] “resulted in functional limitations, however, it is not disabling” and as to mental [6] impairments the ALJ found they “cause functional limitations; however, they are not [7] disabling.” (AR 77-78.) The Court finds that by referencing Plaintiff’s back pain and [8] mental impairments immediately following his summary of Plaintiff's testimony [9] regarding the same, the ALJ was referring to the back pain and mental impairments [10] identified in his summary of Plaintiff’s testimony. Therefore, the ALJ did sufficiently [11] identify the testimony from Plaintiff that he goes on to evaluate. [12] Plaintiff argues that “[b]eyond the conclusory statement that the objective evidence [13] does not support the testimony, the ALJ nowhere connects any of [Plaintiff’s] testimony [14] to the ALJ’s analysis.” (ECF 19 at 10.) The Court disagrees. As noted above, the ALJ did [15] identify Plaintiff’s testimony as to low back pain causing leg numbness, having epidural [16] injections, his pain with bending, and difficulty putting on his shoes. (AR 77.) The ALJ [17] then cites to medical records to support his decision to discredit this testimony: [18] However, the claimant’s back pain shows stability and control with [19] treatment. On March 27, 2017, the claimant noted improvement since the 20 steroidal injection (Exh. 2F, at pg. 147). The claimant also noted continuous improvement with medication (Exh. 1F, at pgs. 9, 49, 71, 83, etc.). On May [21] 8, 2018, Dr. Sabourin noted decreased lumbar range of motion, but normal 22 gait, reflexes, motor strength, and sensation (Exh. 3F). Electromyography (“EMG”) studies of the bilateral lower extremities on October 30, 2018, [23] were also normal (Exh. 6F, at pg. 1). On November 6, 2018, the claimant 24 reported improvement with chiropractic care and physical therapy (Exhs. 4F, [26] 27 6 As discussed in more detail below, (see IV.A.2.c)) the ALJ mischaracterizes Plaintiff’s testimony regarding his daily activities. The inclusion of that portion of the ALJ decision [28] 1 at pg. 14; 6F, at pg. 1). The claimant also reported improvement using an inversion table (Exh. 6F, at pg. 1). [3] (AR 77-78 (emphasis added).) [4] 5 The Court finds that the ALJ did not make a conclusory statement lacking 6 connection to Plaintiff’s testimony. Rather, the ALJ supported his conclusion regarding 7 Plaintiff’s testimony with objective medical evidence. The ALJ cites medical records 8 showing normal gait, reflexes, motor strength, and sensation in an orthopedic surgeon’s 9 report evaluating Plaintiff’s back pain. (AR 77 (citing AR 482-489 [Ex 3F]).) The ALJ 10 also relies on an EMG study that was normal. (AR 77 (citing AR 562 [Ex 6F at 1]).) The 11 The ALJ identified the testimony at issue, explained Plaintiff’s back pain was stable and 12 controlled with treatment, and then identified the medical records showing normal 13 objective findings that supported that reasoning. Although the normal objective findings 14 are not numerous, the decision sufficiently connected the identified testimony regarding 15 his back pain to medical records he relied on to find Plaintiff’s back pain was not as 16 disabling as Plaintiff alleged.7 This was sufficient. See Thomas, 278 F.3d at 958 (ALJ’s 17 findings must be “sufficiently specific to permit the court to conclude that the ALJ did 18 not arbitrarily discredit the claimant’s testimony.”); see also Lambert, 980 F.3d at 1277 19 (“Our cases do not require ALJs to perform a line-by-line exegesis of the claimant’s 20 testimony, nor do they require ALJs to draft dissertations when denying benefits.”) 21 (citing Treichler, 775 F.3d at 1103 ). [24] 25 7 As regards the ALJ’s analysis of Plaintiff’s mental impairment, Plaintiff makes no specific objection. Notwithstanding, the Court similarly finds that the ALJ connected his [26] summary of Plaintiff's testimony regarding his mental impairments to objective relevant 27 evidence. (See AR at 78 (discussing lack of psychomotor retardation, generally normal mental status results, and minimal evidence of mental health treatment).) [28] 1 Inconsistency with objective medical evidence is a clear and convincing reason to 2 discredit claimant testimony. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) 3 (“Although lack of medical evidence cannot form the sole basis for discounting pain 4 testimony, it is a factor that the ALJ can consider in his credibility analysis.”) (emphasis 5 added). However, the ALJ cannot reject a claimant’s testimony regarding the severity of 6 their symptoms solely because the objective medical evidence does not support it. 7 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Commissioner may not discredit 8 the claimant’s testimony as to the severity of symptoms merely because they are 9 unsupported by objective medical evidence.”); 20 C.F.R. § 404.1529 (c)(2) (“[W]e will 10 not reject your statements about the intensity and persistence of your pain or other 11 symptoms or about the effect your symptoms have on your ability to work solely because 12 the available objective medical evidence does not substantiate your statements.”) 13 (emphasis added); SSR 16-3p, 2017 WL 5180304 , at *5 (“[W]e will not disregard an 14 individual’s statements about the intensity, persistence, and limiting effects of symptoms 15 solely because the objective medical evidence does not substantiate the degree of 16 impairment-related symptoms alleged by the individual.”) (emphasis added). There must 17 be other clear and convincing reasons for rejecting Plaintiff’s symptom testimony. 18 b) Treatment 19 Plaintiff argues the ALJ failed to provide specific, clear, and convincing reasons 20 for his credibility determination. (ECF 19 at 9 (citing Lambert, 980 F.3d at 1277 ).) 21 Plaintiff argues the ALJ did not offer a legally sufficient rationale for not crediting 22 Plaintiff’s testimony regarding the severity of his symptoms. (Id.) Specifically, Plaintiff 23 claims that epidural injections and use of narcotic medication are not signs of 24 conservative care. (Id. at 12.) Further, Plaintiff argues that the ALJ mischaracterized the 25 record in that the records cited by the ALJ state that Plaintiff only received moderate 26 relief with limitations and had continued pain. (Id. at 11-13.) 27 Defendant first argues that the type of and effectiveness of Plaintiff’s treatment is 28 itself a factor, separate and apart from the objective medical evidence. (Id. at 23.) 1 Defendant then argues the ALJ reasonably found Plaintiff’s treatment history and reports 2 of improvement inconsistent with Plaintiff’s allegations that he was completely disabled 3 from pain. (Id. at 23-24.) Defendant explains that the ALJ was not required to find 4 Plaintiff received complete symptom relief from these treatments, but rather 5 appropriately found the improvement and stability of symptoms inconsistent with the 6 severity of symptoms alleged by Plaintiff. (Id. at 24.) Defendant also clarifies that the 7 ALJ did not find Plaintiff’s epidural injections or medications were conservative 8 treatment. (Id. at 23.) 9 The ALJ considers whether and to what extent the claimant’s subjective statements 10 are consistent with “other evidence” in the record. 20 C.F.R. § 404.1529 (c)(3). This other 11 evidence may include the claimant’s daily activities, medications, other measures used to 12 alleviate symptoms, and any “other factors” that the ALJ deems relevant. 20 C.F.R. 13 § 404.1529(c)(3)(i)-(vii); SSR 16-3p, 2017 WL 5180304 , at *7-8. As an additional factor, 14 the ALJ can consider that Plaintiff’s treatment history was inconsistent with his alleged 15 symptoms. See 20 C.F.R. § 404.1529 (c)(3)(iv)-(v) (relevant factors include the type and 16 effectiveness of medication or other treatment); SSR 16-3p, 2017 WL 5180304 , at *9-10. 17 The Court agrees that the ALJ did not make a finding that Plaintiff’s epidural 18 injections and medications were conservative treatment. However, as noted above, the 19 ALJ did find Plaintiff’s symptoms were controlled and stable with treatment and 20 discussed his treatment. (AR 77.) As regards epidural injections, the ALJ found that on 21 March 27, 2017, Plaintiff reported improvement following a steroidal injection. (AR 77 22 (citing AR 479 [Ex. 2F at 147].) The cited portion of the record indicates that Plaintiff 23 felt moderate relief from the injection and reported some improvement of pain symptoms 24 with injections, rest, and medications. (AR 479.) Plaintiff also testified at his hearing 25 before the ALJ that epidurals and medication helped with pain. (AR 24 (“Well, I had a lot 26 of epidurals and medication and stuff like that so it kind of, you know help[ed] with 27 pain.”); 25 (Indicating injections “helped for a couple of months”).) While this evidence 28 might be interpreted differently, where “the evidence is susceptible to more than one 1 rational interpretation, it is the ALJ’s conclusion that must be upheld.” Burch, 400 F.3d at 2 679 (citing Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995)). The ALJ did not 3 err in finding Plaintiff’s improved with the epidural injections or in finding it undermined 4 his testimony regarding the severity of his pain. Improvement following epidural 5 injections may constitute a specific, clear and convincing reason. See Stewart v. Colvin, [6] 674 F. App’x 634, 636 (9th Cir. Jan. 3, 2017). 7 The ALJ also found that Plaintiff showed continued improvement with medication. 8 (AR 77 (citing AR 233, 273, 295, 307 [Ex. 1F 9, 49, 71, 83]).) The records cited by the 9 ALJ support this finding. Plaintiff reported some improvement with medications in 10 numerous medical records from May 2016 to March 2017. (See AR 233, 273, 307, 479.) 11 The ALJ relied on an inconsistency between the severity of symptoms claimed by 12 Plaintiff and Plaintiff’s reports of some improvement from medications over time. The 13 ALJ may consider inconsistencies between a plaintiff’s testimony and reports to medical 14 providers in rejecting a plaintiff’s testimony. See Connett, 340 F.3d at 873 (finding ALJ’s 15 reliance on inconsistencies between a plaintiff’s testimony and reports to medical 16 providers supported rejection of the plaintiff’s testimony); see also Light, 119 F.3d at 792 17 (ALJ may rely on “inconsistencies either in his testimony or between his testimony and 18 his conduct, his daily activities, his work records, and testimony from physicians and 19 third parties concerning the nature, severity and effect of the symptoms of which he 20 complains.”). 21 Plaintiff argues “[e]pidural, chiropractic care and acupuncture provided none or 22 only some relief.” (ECF 19 at 13 (citing AR 562).) However, the ALJ finds that on 23 November 6, 2018, Plaintiff reported improvement with chiropractic care and physical 24 therapy. (AR 77-78.) The decision also cites exhibits in support thereof. (AR 78 (citing 25 AR 502, 562 [Exs. 4F at 14; 6F at 1]).) The first exhibit cited by the ALJ, from March 14, 26 2018, notes Plaintiff reported having previously received chiropractic care following a 27 car accident, and treating pain with an inversion table and a TENS machine which helped 28 his pain. (AR 502.) The second exhibit the ALJ cites is a progress note from a November 1 6, 2018 visit with Dr. Gupta. (AR 562.) Plaintiff indicated at that visit that the lower back 2 pain started after his March 2016 vehicular accident. (Id.) As regards his lower back pain, 3 he stated that chiropractic care and physical therapy gave him some relief from pain. (Id.) 4 He also stated that epidural injections helped with pain. (Id.) 5 The Court concludes that the ALJ did not mischaracterize Plaintiff’s statements 6 regarding his improvement with treatment. Plaintiff’s statements to his medical providers, 7 cited by the ALJ, indicated improvement through use of medication, epidural injections, 8 chiropractic care and physical therapy. This analysis provides a clear and convincing 9 reason supported by substantial evidence to discredit Plaintiff’s testimony regarding the 10 severity of his symptoms. 11 c) Daily Activities 12 The ALJ decision states, “claimant returned to work briefly in February 2018. (Ex. 13 3F, at pg. 2). He testified that he continued to work part-time at an autobody shop and as 14 a handyman. This detracts from the claimant’s alleged loss of functioning.” (AR 78.) The 15 ALJ goes on to find, 16 The consistency of the claimant’s allegations regarding the severity of his symptoms and limitations is diminished because those allegations are greater [17] than expected in light of the objective evidence of record. For instance, the 18 claimant testified he cannot work due to back pain. However, he reported being independent in most activities of daily living and had normal insight [19] and judgment (Exh. 5F, at pgs. 4-5). He also currently works part-time. This 20 is inconsistent with the inability to work. Moreover, there is minimal evidence of mental health treatment in the medical record and no history of [21] psychiatric hospitalizations. This is inconsistent with disabling mental 22 impairments. [23] (AR 78.) 24 Plaintiff argues that the fact that Plaintiff can do parttime work is not enough 25 reason to find a lack of credibility. (ECF 19 at 14-15.) He points to his testimony wherein 26 he stated that he works odd jobs only 2-4 hours a day before pain stops him. (ECF 19 at 27 14 (citing AR 20-21).) There are days, about twice a week, where he cannot perform this 28 work due to pain and depression. (Id. (citing AR 31-32).) He concludes that he cannot do 1 gainful work activity a substantial part of the day due to his pain. (Id. at 14-15). 2 Defendant argues that the ALJ’s finding was reasonable as the parttime work was 3 physically demanding and required mental aptitude beyond what Plaintiff alleged. (Id. at 4 25.) Defendant also argues a claimant’s activities need not demonstrate an ability to 5 perform full-time, substantial work to be a relevant consideration. (Id.) 6 An “ALJ [is] permitted to consider daily living activities in his credibility 7 analysis.” Burch, 400 F.3d at 681 ; see also Molina v. Astrue, 674 F.3d 1104, 1113 (9th 8 Cir. 2012) superseded on other grounds by 20 C.F.R. § 404.1502 (a). Daily activities 9 “form the basis for an adverse credibility determination” when: (1) the daily activities 10 meet the threshold for transferable work skills or (2) the daily activities contradict the 11 claimant’s other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see also 12 Trevizo, 871 F.3d at 682. The ALJ’s analysis here supports neither. 13 The ALJ stated that “the claimant testified he cannot work due to back pain. 14 However, he reported being independent in most activities of daily living ….”(AR 78 15 (citing AR 559-60 [Ex. 5F at 4-5]).) The ALJ does not identify what daily activities 16 discredit Plaintiff’s testimony that he cannot work due to back pain. Although the record 17 cited by the ALJ identifies some very basic activities, including chores, errands, and 18 reading, the ALJ does not explain how these activities are inconsistent with Plaintiff’s 19 testimony. This is particularly problematic here because Plaintiff testified that typical 20 daily activities like getting dressed and showering were difficult for him depending on his 21 activities the prior day. (AR 27-28.) Also, when asked about helping his parents, who he 22 lives with, he indicated yes, “at times, but at times I’m usually just putting heat on my 23 back or the TENS unit.” (AR 28.) 24 The ALJ also made an adverse credibility determination based on his finding that 25 Plaintiff testified that he works parttime at an autobody shop and as a handyman. (AR 26 78.) The decision concludes this detracts from his claim of alleged loss of functioning. 27 (AR at 78.) However, the ALJ’s characterization of Plaintiff’s testimony is not accurate. 28 Plaintiff testified that he did automotive work for family and friends a couple of hours a 1 day until the pain comes back. (AR 21, 31.) He also indicated there are many days, twice 2 a week or so that he cannot work due to back pain or depression. (AR 31-32.) He does 3 not own an autobody shop or work at one; he does the work at home. (AR 21.) He 4 specifically answered “no” to the ALJ’s question of whether he was associated with an 5 autobody shop where he goes to work for them. (AR 21.) The ALJ not only ignored his 6 testimony regarding how much he could work and where he worked, but characterized it 7 inaccurately to discredited Plaintiff’s allegations. 8 The Court finds that the ALJ’s reliance on Plaintiff working parttime at an 9 autobody shop to find his testimony not credible was erroneous. The ALJ’s misstatement 10 of Plaintiff’s testimony gives the impression that Plaintiff goes to a job under a set work 11 schedule for an employer. However, his doing odd jobs for family and friends when he is 12 not in too much pain is not equivalent to Plaintiff holding a stable parttime job at an 13 autobody shop. 14 The ALJ may consider the “inconsistencies either in his testimony or between his 15 testimony and his conduct concerning the nature, severity and effect of the symptoms of 16 which he complains.” Light, 119 F.3d at 792. However, an ALJ errs if they 17 mischaracterize a claimant’s testimony to find inconsistency with daily activities. See 18 Garrison, 759 F.3d at 1015-16 ; see also Reddick, 157 F.3d at 722 (“Our examination of 19 the record shows that the ALJ has erred in characterizing statements and documents 20 contained therein to reach the conclusion that Claimant exaggerated her symptoms.”); see 21 also Cobb v. Colvin, No. CV 14-0655 RNB, 2014 WL 5659414 , at *2 (C.D. Cal. Nov. 4, 22 2014) (Finding ALJ’s reasoning legally insufficient when ALJ “ignored the full context 23 of plaintiff’s statements about his daily activities, which indicated that he performed them 24 on a limited basis with help and rest.”) (citation omitted). Plaintiff’s statements about his 25 activities, considered in their full context, do not establish that he exaggerated his 26 symptoms. 27 The ALJ also relied on Plaintiff’s returning to work briefly in February 2018 to 28 discredit Plaintiff’s testimony. (AR 78 (citing AR 483 [Ex. 3F at 2]).) However, the 1 exhibit cited indicates that Plaintiff tried to return to work in February 2018 but after 3 2 days trying to work as a mechanic lifting tires, it hurt too much. (AR 483.) The ALJ fails 3 to acknowledge this rather significant limitation of Plaintiff’s attempt to return to work. 4 The ALJ failed to report and consider the full context of Plaintiff’s brief return to work. 5 This was error. See Reddick, 157 F.3d at 723 (finding ALJ erred in characterization of 6 statements by not fully accounting for the context of materials or all parts of the 7 testimony and reports and paraphrasing of record material inaccurately.) 8 It does not appear from the decision that the ALJ found any of Plaintiff’s daily 9 activities transferrable to a work setting. As noted above, daily activities may be 10 “grounds for an adverse credibility finding ‘if a claimant is able to spend a substantial 11 part of his day engaged in pursuits involving the performance of physical functions that 12 are transferable to a work setting.’” Orn, 495 F.3d at 639 (quoting Fair v. Bowen, 885 13 F.2d 597, 603 (9th Cir.1989)); see also Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 14 2014) (“[T]here is no indication here that the limited activities Ghanim engaged in, often 15 with the help of a friend, either comprised a ‘substantial’ portion of Ghanim’s day, or 16 were ‘transferrable’ to a work environment.”). The “ALJ must make ‘specific findings 17 relating to the daily activities’ and their transferability to conclude that a claimant’s daily 18 activities warrant an adverse credibility determination.” Orn at 639 (quoting Burch, 400 19 F.3d at 681). There is no specific explanation regarding transferability. Additionally, 20 even if the ALJ did address transferability, the analysis would necessarily rely on the 21 same mischaracterization of Plaintiff’s testimony as to when, where, and how much he 22 could work. These deficiencies, discussed at length above, would result in the same error 23 here. 24 In conclusion, the ALJ failed to identify what daily activities Plaintiff engaged in 25 that undermined or were inconsistent with Plaintiff’s testimony. The ALJ also erred in 26 mischaracterizing the testimony he did identify as to Plaintiff’s work activities and 27 completely ignoring significant limitations on it. And, to the extent the ALJ was [28] 1 attempting to find Plaintiff’s daily activities were transferrable to a work setting, he failed 2 to do so. 3 4. Harmless Error and Remand 4 When, as here, the ALJ has erred, the Court must consider whether the error was 5 harmless. “ALJ errors in social security cases are harmless if they are ‘inconsequential to 6 the ultimate nondisability determination.’” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th 7 Cir. 2015) (quoting Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 8 2006)); see also Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008) 9 (An ALJ’s reliance on erroneous reasons is harmless so long as the “remaining reasoning 10 and ultimate credibility determination were adequately supported by substantial 11 evidence”). However, “where the magnitude of an ALJ error is more significant, then the 12 degree of certainty of harmlessness must also be heightened before an error can be 13 determined to be harmless.” Marsh, 792 F.3d at 1173 . 14 Here, the ALJ provided two reasons for rejecting Plaintiff’s testimony that were 15 not erroneous – inconsistency with the objective medical evidence (see IV.A.2.a) and 16 Plaintiff’s treatment history (see IV.A.2.b). As noted above, the objective medical 17 evidence is insufficient on its own to reject Plaintiff’s symptom testimony. And, as 18 discussed above, the ALJ’s characterization of Plaintiff’s testimony regarding his work 19 activities was inaccurate and the typical daily activities the ALJ only referenced generally 20 were not discussed. This leaves the Court with the impression that the ALJ did not 21 understand Plaintiff’s testimony regarding his activities. Even though the ALJ did not err 22 in his interpretation of Plaintiff’s improvement with treatment, the Court finds the ALJ’s 23 assessment of Plaintiff’s symptom testimony overall might be different if the ALJ had an 24 accurate understanding of Plaintiff’s testimony regarding his activities. In this respect, the 25 Court cannot find the ALJ’s errors “inconsequential to the ultimate nondisability 26 determination.” Marsh, 792 F.3d at 1173 . Additionally, the ALJ’s errors in 27 mischaracterizing Plaintiff’s testimony were significant. Id. (“[W]here the magnitude of 28 an ALJ error is more significant, then the degree of certainty of harmlessness must also 1 be heightened before an error can be determined to be harmless.”) The Court cannot find 2 the ALJ’s errors here were harmless. 3 However, given the outstanding issues, the Court find’s remand of the case is 4 required. “The rare circumstances that result in a direct award of benefits are not present 5 in this case.” Leon, 880 F.3d at 1047. “When the ALJ denies benefits and the court finds 6 error, the court ordinarily must remand to the agency for further proceedings before 7 directing an award of benefits.” Id. at 1045 (citing Treichler, 775 F.3d at 1099 ). The 8 credit-as-true analysis “permits, but does not require, a direct award of benefits on review 9 but only where the [ALJ] has not provided sufficient reasoning for rejecting testimony 10 and there are no outstanding issues on which further proceedings in the administrative 11 court would be useful.” Id. at 1044. 12 The Court need not address each step of the three-part analysis because here there 13 are “outstanding issues on which further proceedings in the administrative court would be 14 useful.” Id. At the second step, the Court considers “whether there are ‘outstanding issues 15 that must be resolved before a disability determination can be made’ and whether further 16 administrative proceedings would be useful.’” Id. (quoting Treichler, 775 F.3d at 1101 ). 17 “In evaluating this issue, [the Court] consider[s] whether the record as a whole is free 18 from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and 19 whether the claimant’s entitlement to benefits is clear under the applicable legal rules.” 20 Treichler, 775 F.3d at 1104–05. “Where . . . an ALJ makes a legal error, but the record is 21 uncertain and ambiguous, the proper approach is to remand the case to the agency.” Id. 22 at 1105. As discussed above, the ALJ erred in evaluating Plaintiff’s subjective testimony, 23 particularly in mischaracterizing Plaintiff’s testimony regarding his activities to discredit 24 his allegations regarding pain. The ALJ’s erroneous findings are inadequate but further 25 administrative review may remedy the ALJ’s errors, making remand appropriate in this 26 case. [28] 1 B. Unconstitutional Administrative Process 2 The second issue raised in the parties’ briefing is whether the final decision arises 3 from an unconstitutional administrative process that requires remand for a new hearing. 4 The Court need not reach this issue because the only remedy sought, remand, is already 5 being ordered for the reasons set forth above. However, the Court briefly addresses the 6 issue below and finds Plaintiff would not be entitled to a new hearing based on the 7 administrative process. 8 Plaintiff argues the case must be remanded for a new hearing because the final 9 decision of the Commissioner arose from an unconstitutional administrative process. 10 (ECF 19 at 26-39.) More specifically, Plaintiff argues that the improper appointment of 11 the ALJ under tainted administrative proceedings mandates remand of the case for a new 12 hearing. (Id. at 26 (“The question before this Court is whether the improper appointment 13 of the ALJ tainted administrative proceedings below and mandates remand?”) Plaintiff 14 argues there is a two-layer removal problem because neither the Commissioner of Social 15 Security nor the appointed ALJ, operating under the Commission, were subject to 16 removal by the President at the time of Plaintiff’s proceedings before the agency. (ECF 17 19 at 31-39.) Among other decisions, Plaintiff relies on Collins v. Yellen, 141 S. Ct. 1761 18 (2021), Seila Law LLC v CFPB, 140 S. Ct. 2183 (2020), Free Enterprise Fund v. Public 19 Company Accounting Oversight Board, 561 U.S. 477 (2010), and an Office of Legal 20 Counsel opinion, Constitutionality of the Commissioner of Social Security’s Tenure 21 Protection. 45 Op. O.L.C. (July 8, 2021), 2021 WL 2981542 (O.L.C.). 22 Defendant does not dispute the separation of powers violation as to limits on the 23 President’s authority to remove the Commissioner of Social Security. (ECF 19 at 39.) 24 However, as to Plaintiff’s argument regarding ALJ’s, Defendant argues first that it does 25 not apply because the final decision here was issued by the Appeals Council. (Id. at 40.) 26 Then, Defendant explains that even if the final decision had been issued by an ALJ, there 27 is no constitutional issue with the appointment of ALJs. (Id. at 40-43.) Additionally, 28 Defendant argues that even if the Court found there was an issue with the appointment of 1 ALJs, Plaintiff is not entitled to a rehearing of his claim because “Plaintiff cannot show 2 that one or more improper removal restrictions ‘inflicted compensable harm’ on him.” 3 (Id. at 43 (quoting Collins, 141 S. Ct. at 1787).) 4 The Court agrees that Plaintiff has not shown that an unconstitutional provision 5 actually caused him harm as would be required for a new hearing. The Ninth Circuit 6 addressed the unconstitutional provision regarding removal of the Commissioner of 7 Social Security in an opinion issued on April 27, 2022, after briefing on this case was 8 complete.8 Kaufman v. Kijakazi, 32 F.4th 843 (9th Cir. 2022). While the court found the 9 removal provision “violates separation of powers principles,” it also found it severable 10 and that a “[c]laimant . . . must demonstrate that the unconstitutional provision actually 11 caused her harm.” Id. at 849 (“[U]nless a claimant demonstrates actual harm, the 12 unconstitutional provision has no effect on the claimant’s case.”). Even if the Court 13 assumed there were a similar violation in the appointment of ALJs and assumed that the 14 violation was at issue here, Plaintiff would not be entitled to a new hearing on that basis 15 because he has not demonstrated he was harmed by the unconstitutional provision. 16 Plaintiff relies only on the Commissioner and ALJ serving under unconstitutional 17 removal provisions at the time decisions were made regarding his claim for disability. 18 There is no basis for finding actual harm to Plaintiff from the unconstitutionality of the 19 Commissioner’s removal provision or the alleged unconstitutionality of the ALJ’s 20 removal provision. When, as here, “[n]othing in the record suggests any link whatsoever 21 between the removal provision[s] and the claimant’s case,” the removal provision does 22 not impact the validity of the final decision. Kaufmann, 32 F.4th at 850 . Plaintiff is not 23 entitled to remand of the case on this basis. 24 /// 25 /// [27] 8 The parties have not requested to file supplemental briefing regarding the Kaufman [28] 1 CONCLUSION 2 For the foregoing reasons, the Court grants summary judgment to Plaintiff, denies 3 ||summary judgment to Defendant, and REMANDS the case to the Commissioner of Social 4 || Security for further administrative proceedings. The Clerk shall close the file. 5 IT IS SO ORDERED. 6 Dated: August 18, 2022 : p / / 7 on. Bernard G. Skomal 8 United States Magistrate Judge