Henderson v. Saul

[7] 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA [10] 11 RICHARD W. HENDERSON, Case No.: 2:19-cv-00028-NJK 12 Plaintiff(s), ORDER 13 v. 14 ANDREW SAUL, 15 Defendant(s). 16 This case involves judicial review of administrative action by the Commissioner of Social 17 Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits 18 pursuant to Title XVI of the Social Security Act. Currently before the Court is Plaintiff’s Motion 19 for Reversal and/or Remand. Docket No. 21. The Commissioner filed a response in opposition 20 and a cross-motion to affirm. Docket Nos. 22-23. Plaintiff filed a reply. Docket No. 24. The 21 parties consented to resolution of this matter by the undersigned magistrate judge. Docket No. 25. 22 I. STANDARDS 23 A. Disability Evaluation Process 24 The standard for determining disability is whether a social security claimant has an 25 “inability to engage in any substantial gainful activity by reason of any medically determinable 26 physical or mental impairment which can be expected . . . to last for a continuous period of not 27 less than 12 months.” 42 U.S.C. § 423 (d)(1)(A); see also 42 U.S.C. § 1382c(3)(A). That 28 determination is made by following a five-step sequential evaluation process. Bowen v. Yuckert, [1] 482 U.S. 137, 140 (1987) (citing 20 C.F.R. §§ 404.1520 , 416.920). The first step addresses 2 whether the claimant is currently engaging in substantial gainful activity. 20 C.F.R. §§ 3 404.1520(b), 416.920(b).1 The second step addresses whether the claimant has a medically 4 determinable impairment that is severe or a combination of impairments that significantly limits 5 basic work activities. 20 C.F.R. §§ 404.1520 (c), 416.920(c). The third step addresses whether the 6 claimant’s impairments or combination of impairments meet or medically equal the criteria of an 7 impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520 (d), 8 404.1525, 404.1526, 416.920(d), 416.925, 416.926. There is then a determination of the 9 claimant’s residual functional capacity, which assesses the claimant’s ability to do physical and 10 mental work-related activities. 20 C.F.R. §§ 404.1520 (e), 416.920(e). The fourth step addresses 11 whether the claimant has the residual functional capacity to perform past relevant work. 20 C.F.R. 12 §§ 404.1520(f), 416.920(f). The fifth step addresses whether the claimant is able to do other work 13 considering the residual functional capacity, age, education, and work experience. 20 C.F.R. §§ 14 404.1520(g), 416.920(g). 15 B. Judicial Review 16 After exhausting the administrative process, a claimant may seek judicial review of a 17 decision denying social security benefits. 42 U.S.C. § 405 (g). The Court must uphold a decision 18 denying benefits if the proper legal standard was applied and there is substantial evidence in the 19 record as a whole to support the decision. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). 20 Substantial evidence is “more than a mere scintilla,” which equates to “such relevant evidence as 21 a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, ___ 22 U.S. ____ , 139 S.Ct. 1148, 1154 (2019). “[T]he threshold for such evidentiary sufficiency is not 23 high.” Id. [27] 1 The five-step process is largely the same for both Title II and Title XVI claims. For a 28 Title II claim, however, a claimant must also meet insurance requirements. 20 C.F.R. § 404.130 . 1 II. BACKGROUND 2 A. Procedural History 3 On February 9, 2015, Plaintiff filed an application for supplemental security income with 4 an alleged disability onset date of October 1, 2007. See, e.g., Administrative Record (“A.R.”) 5195 26. On August 24, 2015, Plaintiff’s claim was denied initially. A.R. 444-48. On January 21, 6 2016, Plaintiff’s claim was denied on reconsideration. A.R. 456-61. On February 5, 2016, Plaintiff 7 filed a request for a hearing before an administrative law judge. A.R. 462-64. On 8 April 6, 2017, Plaintiff, Plaintiff’s representative, and a vocational expert appeared for a hearing 9 before ALJ Cynthia Hoover. See A.R. 393-416. On November 13, 2017, the ALJ issued an 10 unfavorable decision finding that Plaintiff had not been under a disability since the date the 11 application was filed. A.R. 39-56. On November 9, 2018, the ALJ’s decision became the final 12 decision of the Commissioner when the Appeals Council denied Plaintiff’s request for review. 13 A.R. 1 -7. 14 On January 3, 2019, Plaintiff commenced this action for judicial review. Docket No. 1. 15 B. The Decision Below 16 The ALJ’s decision followed the five-step sequential evaluation process set forth in 20 17 C.F.R. § 416.920 . A.R. 42-51. At step one, the ALJ found that Plaintiff has not engaged in 18 substantial gainful activity since the application date. A.R. 44. At step two, the ALJ found that 19 Plaintiff has the following severe impairments: hearing loss, loss of speech, diabetes mellitus, skin 20 cancer, history of fracture of the lower extremity, and degenerative disc disease. A.R. 44-47. At 21 step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments 22 that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, 23 Subpart P, Appendix 1. A.R. 47. The ALJ found that Plaintiff has the residual functional capacity 24 to perform the full range of medium work as defined by 20 C.F.R. § 416.967 (c). A.R. 47-49. At 25 step four, the ALJ found Plaintiff capable of performing past relevant work as a truck driver. A.R. 26 49-50. The ALJ included an alternative finding that Plaintiff could also perform other jobs existing 27 in significant numbers in the national economy. A.R. 50-51. [28] 1 Based on all of these findings, the ALJ found Plaintiff not disabled since the date of the 2 application. A.R. 51. 3 III. ANALYSIS 4 Plaintiff raises a single issue on appeal, asserting that the ALJ erred in discounting his 5 testimony of disabling limitations. Credibility and similar determinations are quintessential 6 functions of the judge taking witness testimony, so reviewing courts generally give deference to 7 such assessments. See, e.g., Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986). In 8 the Social Security context, “[t]he ALJ is responsible for determining credibility.” Andrews v. 9 Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995). An ALJ’s assessment of a claimant’s testimony 10 is generally afforded “great weight” by a reviewing court. See, e.g., Gontes v. Astrue, 913 F. Supp. 11 2d 913, 917-18 (C.D. Cal. 2012) (citing Weetman v. Sullivan, 877 F.2d 20, 22 (9th Circ. 1989) and 12 Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985)). If an ALJ’s determination to discount a 13 claimant’s testimony is supported by substantial evidence, a court should not second-guess that 14 determination. Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012).2 15 The ALJ is required to engage in a two-step analysis to evaluate a claimant’s testimony as 16 to pain and other symptoms: (1) determine whether the individual presented objective medical 17 evidence of an impairment that could reasonably be expected to produce some degree of pain or 18 other symptoms alleged; and (2) if so, whether the intensity and persistence of those symptoms 19 limit an individual’s ability to perform work-related activities. See Social Security Ruling 16-3p. 20 In the absence of evidence of malingering, an ALJ may only reject a claimant’s testimony about 21 the severity of symptoms by giving specific, clear, and convincing reasons. See Vasquez v. Astrue, [22] 572 F.3d 586, 591 (9th Cir. 2009). Factors that an ALJ may consider include inconsistent daily 23 activities, an inconsistent treatment history, and other factors concerning the claimant’s functional 24 limitations. See Social Security Ruling 16-3p. [26] 2 The regulations previously asked the ALJ to assess “credibility.” Social Security Ruling 27 96-7p. The current regulations require the ALJ to instead “evaluate” the claimant’s statements. Social Security Ruling 16-3p. This change in nomenclature does not alter the deferential nature 28 of the Court’s review. 1 In this case, the ALJ found that Plaintiff satisfied the first step of the above analysis, but 2 then found that Plaintiff’s testimony should be discounted at the second step of the analysis. 3 Notwithstanding the deferential review of an ALJ’s assessment of a claimant’s testimony, the 4 ALJ’s assessment in this case is not supported by substantial evidence and cannot stand. 5 A. OBJECTIVE MEDICAL RECORD 6 The ALJ discounted Plaintiff’s testimony based on the assertion that it was not supported 7 by the objective medical evidence based on the characterization of the record as including almost 8 exclusively “mild” findings. See A.R. 48. Plaintiff argues that the ALJ’s reasoning was not 9 supported by substantial evidence because it ignores aspects of the record showing more 10 significant impairment. See Mot. at 8-9. Without acknowledging or discussing the medical record 11 identified by Plaintiff, the Commissioner argues that substantial evidence supported the ALJ’s 12 finding. See Resp. at 5.3 Plaintiff has the better argument. 13 When the objective medical record does not support a claimant’s testimony, an ALJ may 14 rely on that as a factor in discounting the testimony. E.g., Burch v. Barnhart, 400 F.3d 676 , 681 15 (9th Cir. 2005). In this case, the ALJ highlighted that imaging in the record “revealed only mild 16 degenerative changes” in the lumbar spine. See A.R. 48. The ALJ indicates that there is only one 17 exception to these “mild” changes, recognizing that the magnetic resonance imaging (“MRI”) also 18 shows moderate right L3-L4, L4-L5 neural foraminal narrowing. See A.R. 46. As Plaintiff points 19 out on appeal, however, the ALJ did not account for the other MRI results in the same exhibit that 20 show: severe bilateral facet arthropathy at L5-S1; moderate bilateral facet arthropathy and a small [21] 3 With respect to a number of arguments presented by Plaintiff on appeal, the 22 Commissioner’s responsive brief provides no counterargument of any kind. “In most circumstances, failure to respond in an opposition brief to an argument put forward in an opening 23 brief constitutes waiver or abandonment in regard to the uncontested issue.” Stichting Pensioenfonds ABP v. Country Fin’l Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011) 24 (collecting cases); see also Docket No. 12 at 6 (a failure by the Commissioner to provide points and authorities may result in reversal of the decision below). Other aspects of the Commissioner’s 25 brief consist of a cursory recitation of the particular standard at play along with ipse dixit that the ALJ did not err. “[B]ald assertions” supported by “little if any analysis” do not assist the reviewing 26 Court in evaluating the issues on appeal. See Independent Towers of Wash. v. Wash., 350 F.3d 925 , 929 (9th Cir. 2003). Such undeveloped arguments are similarly waived. See, e.g., Hilao v. 27 Estate of Marcos, 103 F.3d 767 , 778 n.4 (9th Cir. 1996). Notwithstanding the shortcomings in the Commissioner’s briefing, the Court has endeavored to address Plaintiff’s arguments on their 28 merits. 1 posterior disc osteophyte complex at L4-L5; moderate to severe bilateral facet arthropathy and a 2 posterior disc osteophyte complex at L3-L4; moderate to severe bilateral facet arthropathy and a 3 small posterior disc osteophyte complex at L2-L3; moderate to severe bilateral facet arthropathy 4 and a small posterior disc osteophyte complex at L1-L2; and moderate to severe bilateral facet 5 arthropathy at T12-L1. See Mot. at 8-9; see also AR 913–14. The ALJ provides no explanation 6 how the record supports a conclusion that there is medical evidence of only “mild” lumbar spine 7 conditions given these MRI records showing moderate, moderate-to-severe, and severe lumbar 8 spine conditions. See A.R. 46, 48. As noted above, the Commissioner similarly buries his head 9 in the sand on appeal by ignoring Plaintiff’s argument and failing to make any counterargument 10 regarding these MRI results. See Resp. at 5. 11 An ALJ must review the record as a whole and is not permitted to mischaracterize that 12 record by “cherry-picking” aspects in an effort to support a finding of non-disability. E.g., Lannon 13 v. Comm’r of Soc. Sec., 234 F. Supp. 3d 951, 960 (D. Ariz. 2017). The ALJ’s characterization of 14 the record here as containing only mild findings is not supported by substantial evidence given the 15 MRI results identified above. 16 Accordingly, the ALJ erred in discounting Plaintiff’s testimony on this basis. 17 B. IMPROVEMENT 18 The ALJ discounted Plaintiff’s testimony based on the assertion that he noted improvement 19 to his primary care provider on January 5, 2016, and “[t]here is no evidence of further treatment 20 for the claimant’s back after this appointment.” A.R. 46; see also A.R. 48. Plaintiff disputes 21 whether these findings are proper in light of subsequent medical records. See Mot. at 14. Without 22 acknowledging the medical records identified in Plaintiff’s motion, the Commissioner argues that 23 substantial evidence supports the ALJ’s finding and that it is an appropriate consideration in 24 discounting a claimant’s testimony. See Resp. at 6-7. Plaintiff has the better argument. 25 When a claimant’s medical condition has improved with treatment, an ALJ may rely on 26 that improvement as a factor in discounting the claimant’s testimony of disabling limitations. See, 27 e.g., Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999) (improvement 28 with treatment); see also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 1 2006) (“Impairments that can be controlled effectively with medication are not disabling for 2 purposes of determining eligibility for SSI benefits”). In this case, the ALJ found that Plaintiff 3 reported improvement with his back pain in January 2016, and that there is no evidence of 4 treatment for Plaintiff’s back thereafter. A.R. 48.4 As Plaintiff points out on appeal, however, 5 there are several notes in the medical record from the same primary care provider that thereafter 6 address Plaintiff’s continuing back pain: 7 • On March 30, 2016, the primary care provider made an assessment of “[l]ow back pain 8 radiating to the right leg,” with a notation to “[c]ontinue medications. Meds refilled 9 today.” A.R. 1039-40. 10 • On May 25, 2016, the primary care provider made an assessment of “[l]ow back pain 11 radiating to the right leg,” with a notation that Plaintiff sought a letter (in conjunction 12 with his effort to get housing) to explain that he cannot work, and with another notation 13 for “[f]urther diagnostic evaluations ordered today include[s] X-ray exam of hip, 14 complete Right hip to be performed.” A.R. 1032-33. 15 • On June 22, 2016, the primary care provider made an assessment of “[l]ow back pain 16 radiating to right leg,” with a notation that “pt has had back pain and foot pain. lately 17 one is radiating to the other,” as well as a notation for “[f]urther diagnostic evaluations 18 ordered today include[s] X-ray exam of the lower spine . . .” A.R. 1026-27.5 19 • On July 20, 2016, the primary care provider made an assessment of “[l]ow back pain 20 radiating to right leg,” with a notation to “[t]ake meds at first sign of pain. discussed 21 labs.” A.R. 1021-22. [24] 25 4 In the aspect of the record relied upon by the ALJ, Brian Lane (MS PAC) assesses “[l]ow back pain radiating to right leg” before indicating that “pt states that his back pain has improved. 26 He has not contacted pain management.” A.R. 1059. 27 5 An exhibit sticker covers part of this last notation. As currently viewable, the notation reads: “further diagnostic evaluations ordered today include(s) X-ray exam of lower spine, 28 [sticker] complete to be performed.” A.R. 1027. 1 • On August 17, 2016, the primary care provider made an assessment of “[l]ow back pain 2 radiating to right leg,” with a notation to “[c]ontinue medications. Meds refilled 3 today.” A.R. 1014-15. 4 See Mot. at 14; see also id. at 5 (citing further notations of back pain at A.R. 204, 210, 212, 223, 5 and 292).6 The ALJ ignores these notations in the medical record that clearly undermine the 6 finding that Plaintiff had improved to the point of not needing any additional treatment. See A.R. 7 46, 48. The ALJ also fails to explain how the single notation of “improvement” is properly used 8 to discount Plaintiff’s testimony of disabling limitations given the subsequent records of back pain. 9 See id. Once again, the Commissioner on appeal similarly ignores Plaintiff’s argument and 10 provides no specific argument how the ALJ’s assessment of improvement and discontinued 11 medical treatment could square with these aspects of the medical record cited in Plaintiff’s motion. 12 See Resp. at 6-7. 13 The ALJ’s finding that Plaintiff ceased treatment after January 2016 is not supported by 14 substantial evidence in light of the above records. Moreover, the ALJ’s reliance on a single 15 notation of “improvement” that was followed by months of notations of back pain was also in 16 error. Cf. Lopez v. Colvin, 194 F. Supp. 3d 903, 911 (D. Ariz. 2016). 17 Accordingly, the ALJ erred in discounting Plaintiff’s testimony on these bases. 18 C. DAILY ACTIVITIES 19 The ALJ discounted Plaintiff’s testimony based on the assertion that it was inconsistent 20 with his daily activities of living in a tent (i.e. being homeless), unsuccessfully looking for work, 21 and collecting cans to earn money. See A.R. 48-49. Plaintiff argues that the ALJ erred because 22 the findings are unsupported by substantial evidence and do not support a finding of non-disability 23 at any rate. See Mot. at 14-16. Ignoring two of the daily activities at issue and providing cursory 24 discussion on the third activity, the Commissioner argues that substantial evidence supports the 25 ALJ’s finding and that it is an appropriate consideration in discounting a claimant’s testimony. 26 See Resp. at 7. Plaintiff has the better argument. [27] 6 Some of these later notations also indicate that Plaintiff declined pain medication. See, 28 e.g., A.R. 212-13. This lack of medication is discussed below in Section III.D. 1 When a claimant’s daily activities are inconsistent with the allegations of disability, an ALJ 2 may rely on that inconsistency as a factor in discounting the claimant’s testimony. See, e.g., Bray 3 v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). In this case, however, none 4 of the ALJ’s findings regarding inconsistent daily activities is supported by substantial evidence. 5 1. Homelessness 6 The ALJ found that Plaintiff being homeless is inconsistent with his testimony of disabling 7 limitations because being “homeless and living in a tent . . . requires significant mobility.” A.R. 8 49. No further elaboration is provided. Plaintiff argues that such a vague finding amounts to 9 nothing more than conjuncture and is not supported by substantial evidence. Mot. at 14-15. The 10 Commissioner provides no argument on appeal that the ALJ properly relied on Plaintiff’s 11 homelessness as a daily activity inconsistent with his allegations of disability. Resp. at 7. An ALJ 12 errs in relying on vague reference to a claimant’s homelessness to discount testimony of disability. 13 See, e.g., Julian v. Comm’r of Soc. Sec., 2017 WL 3709092 , at *5 (E.D. Wash. July 14, 2017). 14 The ALJ’s vague reference here to the “mobility” of the homeless is similarly defective. As such, 15 the ALJ erred in discounting Plaintiff’s testimony based on the vague assertion that it was 16 inconsistent with the mobility required in being homeless.7 17 2. Looking for Work 18 The ALJ also discounted Plaintiff’s testimony on the basis that his daily activities included 19 efforts to obtain “work.” A.R. 49. 20 Seeking out employment can in some circumstances constitute permissible grounds for an 21 ALJ to discount a claimant’s testimony. See, e.g., Bray, 554 F.3d at 1227 . Nonetheless, courts 22 have found that an ALJ errs in discounting a claimant’s testimony based on vague findings that he 23 unsuccessfully attempted to obtain work. See Lannon, 234 F. Supp. 3d at 960 ; see also 24 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). Important to this issue in this case, 25 Plaintiff explains that—given his advanced age and lack of transferrable skills—a finding of non26 27 7 Plaintiff raises policy arguments concerning an ALJ’s rejection of social security benefits premised on the fact that a claimant is homeless. See Mot. at 15. The Court need not reach such 28 arguments given the finding above. 1 disability is allowed only if he can perform medium exertional work or higher. See Mot. at 15-16; 2 see also 20 C.F.R. § 416.968 (d)(4); Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990) (“it 3 should surprise no one that the [Commissioner] faces a more stringent burden for denying 4 disability benefits to older claimants”). The Commissioner does not dispute this underlying 5 premise. See Resp. at 7. 6 Given the above circumstance, Plaintiff argues that a finding that he was looking for 7 “work” is insufficient to discount his testimony without some indication as to the level of that work 8 being medium or higher exertional level. See Mot. at 15-16.8 Looking for light work, for example, 9 would not be inconsistent with allegations of disability in this case because Plaintiff would still be 10 disabled if the ALJ found that he could engage in light work. See id. The Commissioner does not 11 meaningfully respond to this argument, choosing instead to simply parrot the general proposition 12 that looking for work is inconsistent with alleging an inability to work. See Resp. at 7. Such 13 argument does not advance the ball in any way given the required finding of an ability to engage 14 in medium exertional level work or higher to find non-disability in this case. 15 In discounting a claimant’s testimony based on inconsistent daily activities, an ALJ must 16 demonstrate that “the ability to perform those daily activities translated into the ability to perform 17 appropriate work.” Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990). Having not made 18 any findings that Plaintiff looking for “work” translates into an ability to perform medium 19 exertional level work or higher, the ALJ’s reliance on this activity to discount Plaintiff’s testimony 20 lacks substantial evidence. 21 As such, the ALJ erred in discounting Plaintiff’s testimony based on the vague assertion 22 that it was inconsistent with Plaintiff having looked for work. 23 3. Collecting Cans 24 The ALJ found that Plaintiff’s collection of cans to earn money is inconsistent with his 25 testimony of disabling limitations because that activity “requires significant mobility.” A.R. 49. 26 No further elaboration is provided. Plaintiff argues that such a vague finding is not supported by [27] 8 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or 28 carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967 (c). 1 substantial evidence given that there is no explanation as to how Plaintiff’s collection of cans 2 contradicts his testimony that he can walk a few blocks at a time, can get cans off the ground by 3 going down to a knee, and can lift up to 10 pounds at a time. See Mot. at 15 (citing A.R. 406, 410, 4 415). The Commissioner provides no argument on appeal that the ALJ properly relied on 5 Plaintiff’s can collecting as a daily activity inconsistent with his allegations of disability. Resp. at 6 7. An ALJ errs in relying on vague reference to a claimant’s collection of cans to discount 7 testimony of disability. See, e.g., Schwanz v. Colvin, 2014 WL 4722214 , at *15 (D. Ore. Sept. 22, 8 2014). The ALJ’s vague reference here to the “mobility” required to collect cans is similarly 9 defective. As such, the ALJ erred in discounting Plaintiff’s testimony based on the vague assertion 10 that it was inconsistent with the mobility required in being homeless. 11 4. Conclusion 12 In short, the finding that Plaintiff’s daily activities were inconsistent with his allegations 13 of disability is not supported by substantial evidence. Accordingly, the ALJ erred in discounting 14 Plaintiff’s testimony on this basis. 15 D. LACK OF TREATMENT 16 The ALJ discounted Plaintiff’s testimony based on a lack of treatment. See A.R. 48. In 17 particular, the ALJ noted that Plaintiff only took prescription medicines for a four-month period 18 and did not see a pain management provider as recommended. See id. Plaintiff argues that the 19 ALJ erred in advancing this reason for discounting his testimony because the record evidences 20 reasons for the identified lack of treatment. See Mot. at 13-14. The Commissioner responds that 21 the ALJ did not err because there was evidence of lack of treatment, but again ignores the argument 22 actually presented by Plaintiff. Resp. at 6-7. Plaintiff has the better argument. 23 When the record reveals a lack of treatment, an ALJ may rely on that as a factor in 24 discounting the claimant’s testimony of disabling limitations. See, e.g., Smolen v. Chater, 80 F.3d 25 1273, 1284 (9th Cir. 1996). There is an important caveat, however, in that only an unexplained or 26 insufficiently explained lack of treatment may be used to discount the claimant’s testimony. See [27] id. An ALJ errs in discounting a claimant’s testimony on this basis without addressing the 28 explanations for the lack of treatment and providing sufficient justification for rejecting the 1 explanations. See, e.g., Trevizo v. Berryhill, 871 F.3d 664, 679-80 (9th Cir. 2017) (holding that an 2 ALJ erred in discounting a claimant’s testimony for lack of treatment in the form of narcotic 3 prescriptions without evaluating explanations that, inter alia, the claimant avoided narcotics given 4 fear of addiction); Regenniter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1296-97 (9th Cir. 5 1999) (holding that an ALJ erred in discounting a claimant’s testimony for lack of treatment that 6 stemmed from an inability to afford that treatment).9 7 As Plaintiff identifies in his motion, potential explanations for the identified lack of 8 treatment are in plain sight in the record. First, Plaintiff was hospitalized for several days in late 9 2015 with acute gastrointestinal bleeding and a very large duodenal ulcer with active hemorrhage. 10 A.R. 884 -885. Upon discharge, Plaintiff was admonished that the range of medicines available 11 for his use was limited as a result. See A.R. 885. The ALJ does not address whether Plaintiff’s 12 lack of additional medication is explained by that episode.10 Second, as noted above, Plaintiff is 13 homeless with limited transportation options, limited money, and no contact with friends or family. 14 See, e.g., A.R. 642. The ALJ relies on Plaintiff’s homelessness as a means to undermine his 15 credibility, but inexplicably fails to consider whether that homelessness is the reason that Plaintiff 16 did not comply with pain management recommendations or otherwise obtain additional treatment. 17 The Commissioner provides no argument on appeal responding to Plaintiff’s contention that the 18 ALJ erred in not evaluating these explanations for the lack of treatment. See Resp. at 6-7. 19 Based on the explanations in the record that are identified by Plaintiff and having been 20 provided no rebuttal by the Commissioner, the Court agrees with Plaintiff that substantial evidence 21 is lacking for the ALJ’s decision to discount Plaintiff’s testimony based on lack of treatment. [22] 9 The Commissioner characterizes this issue on appeal as a lack of treatment. See Resp. at 23 6-7. One could interpret the ALJ’s decision as finding that the treatment that was undertaken— without more—rendered it only conservative in nature. See A.R. 46, 48. “[A]lthough a 24 conservative course of treatment can undermine allegations of debilitating pain, such fact is not a proper basis for rejecting the claimant’s credibility when the claimant had good reason for not 25 seeking more aggressive treatment.” Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). Hence, the ALJ’s reasoning fails even if construed as a finding that Plaintiff’s 26 treatment was conservative in nature. 27 10 Plaintiff also speculates that opioids may have been avoided given issues with overuse. See Mot. at 13. Given the ALJ’s failure to address the potential explanation already in the record, 28 the Court need not address other potential explanations. 1 Accordingly, the ALJ erred in discounting Plaintiff’s testimony on this basis. 2 E. INCONSISTENCY WITH RESPECT TO ABILITY TO BEND 3 The ALJ also discounted Plaintiff’s testimony because his assertions at the hearing of 4 significant difficulty in bending was inconsistent with the finding that he could bend at the 5 consultative examination. A.R. 48. Plaintiff argues that this reasoning is deficient because there 6 were two years between the consultative examination and the testimony at issue during which time 7 his condition worsened. Mot. at 11-12. The Commissioner on appeal does not provide meaningful 8 argument to the contrary, instead he simply points to the earlier finding by the consultative 9 examiner and states that it is inconsistent with Plaintiff’s testimony. Resp. at 6. Plaintiff has the 10 better argument. 11 When a claimant’s testimony is contradicted by the record, an ALJ may rely on that 12 inconsistency to discount the claimant’s testimony. E.g., Carmickle, 533 F.3d at 1161 . At the 13 same time, the Ninth Circuit looks with skepticism on an ALJ’s reliance on stale medical opinions 14 that do not reflect subsequent deterioration in a claimant’s condition. See Stone v. Heckler, 761 15 F.2d 530, 532 (9th Cir. 1985); see also Leslie v. Astrue, 318 Fed. Appx. 591, 592 (9th Cir. 2009). 16 Here, the purported inconsistency in bending capability is premised on the consultative examiner’s 17 findings from June 30, 2015. See A.R. 48 (citing Exhibit 9F); see also A.R. 728-36. The hearing 18 testimony took place on April 6, 2017. See A.R. 393. Plaintiff’s motion identifies the December 19 2015 MRI results as evidencing a deterioration in his back condition, see Mot. at 11-12,11 and the 20 Commissioner on appeal does not dispute that characterization. Plaintiff’s motion argues that 21 inconsistent examination findings made before that MRI are not properly relied upon to show that 22 Plaintiff’s testimony two years later should be discounted, see id., and the Commissioner on appeal 23 does not dispute that argument. 24 Given the two years between the examination relied upon by the ALJ and the Plaintiff’s 25 testimony, coupled with the evidence that his back condition was deteriorating, the Court 26 concludes that the ALJ erred in discounting Plaintiff’s testimony on this basis. [27] 11 Plaintiff’s motion also notes an entry in the medical record from December 1, 2015, that 28 Plaintiff’s lower back pain is “aggravated by bending.” Mot. at 11; see also A.R. 742. 1 F. HARMFULNESS OF ERRORS 2 A claimant is only entitled to relief on appeal when an ALJ’s errors are not harmless. See, 3 e.g., Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). Errors are harmless in this context 4 when a reviewing court can “confidently conclude” that the errors were “inconsequential to the 5 ultimate nondisability determination.” Id. As explained above, all of the reasons proffered by the 6 ALJ for discounting Plaintiff’s testimony regarding his back pain were erroneous. The ALJ then 7 relied on that analysis in formulating a residual functional capacity that Plaintiff can engage in 8 medium exertional work. See A.R. 48-49. The Court cannot confidently conclude that the errors 9 were inconsequential. Accordingly, the ALJ’s errors in rejecting Plaintiff’s testimony regarding 10 his back pain were not harmless. 11 IV. APPROPRIATE RELIEF 12 The Court turns to the appropriate relief in this case. Upon finding that an ALJ committed 13 harmful error, the Ninth Circuit has made clear that “the proper course, except in rare 14 circumstances, is to remand to the agency for additional investigation.” Treichler v. Comm’r of 15 Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). A court may instead remand for an award 16 of benefits when several conditions are met, including that the record has been fully developed 17 and further administrative proceedings would serve no useful purpose. See id. at 1101 . 18 Plaintiff here simply asks for an award of benefits without providing meaningfully19 developed argument as to why such relief is warranted. See Mot. at 16; Reply at 7. Moreover, the 20 Court cannot say that further administrative proceedings would serve no useful purpose, especially 21 given the need for consideration of the evidence identified above, such as the MRI results and the 22 explanations proffered for Plaintiff’s lack of treatment. It remains to be seen whether a finding 23 can properly be made that Plaintiff is not disabled, but the Court is not persuaded that the record 24 is fully developed or that further proceedings would serve no useful purpose.12 [25] 12 There are equitable considerations, such as Plaintiff’s homelessness and the length of 26 time since he applied for benefits, that militate toward an award of benefits. See Trevizo v. Berryhill, 871 F.3d 664, 683 (9th Cir. 2017) (discussing Terry v. Sullivan, 903 F.2d 1273 , 1280 27 (9th Cir. 1990)); see also Varney v. Sec. of Health & Human Servs., 859 F.2d 1396, 1398-99 (9th Cir. 1988). Nonetheless, the Court finds a remand for further proceedings appropriate for the 28 reasons discussed herein. 1 Given the circumstances, the appropriate relief is to remand to the ALJ for further 2\| proceedings consistent with this order. 3 VI. CONCLUSION 4 For the reasons discussed above, the Court GRANTS the motion for reversal or remand 5|| (Docket No. 21) and DENIES the countermotion to affirm (Docket No. 22). The case is hereby 6|| remanded for further proceedings consistent with this order. The Clerk’s Office is instructed to 7] ENTER FINAL JUDGMENT accordingly and to CLOSE this case. 8 IT IS SO ORDERED. 9 Dated: February 18, 2020 10 Lk Nancy J. Koppe 11 United States Magistrate Judge