Smith v. Commissioner of Social Security Administration
Filing
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ORDER vacating and remanding the decision of the ALJ. The Clerk shall enter final judgment consistent with this Order and close this case. Signed by District Judge Krissa M Lanham on 9/25/24. (DXD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Jennifer Smith,
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No. CV-23-01509-PHX-KML
Plaintiff,
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v.
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Commissioner
Administration,
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of
ORDER
Social
Security
Defendant.
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Jennifer Smith seeks review of a final decision of the Commissioner of Social
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Security denying her application for disability supplemental security income. Smith argues
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that the Administrative Law Judge’s analysis of her medical record was not based on
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substantial evidence; the ALJ did not provide clear and convincing reasons for discounting
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her symptom testimony; and he did not consider whether, when combined with functional
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limitations, her obesity medically equaled a statutorily listed impairment. (Doc. 10.)
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Because the ALJ’s opinion is not based on substantial evidence, it is vacated and remanded
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for further proceedings.
I.
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Background
a.
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Procedural History
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Smith filed her application for disability supplemental security income on October
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13, 2020. (Administrative Record (“AR”) 15, Doc. 8-3 at 16.)1 Smith is super morbidly
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obese, weighing 574 pounds with a body mass index greater than 80. (AR 40.) In her
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The complete AR spans Doc. 8-3 through Doc. 9-9.
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application, Smith claimed physical impairments of obesity, congestive heart failure, pre-
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diabetes, blood pressure, neuropathy of both feet, moderate persistent asthma, restless leg
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syndrome, carpal tunnel syndrome, and knee pain. (AR 19–20.) She also claimed mental
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impairments of depression, anxiety, and attention deficit hyperactivity disorder. (AR 21.)
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After initial denials, Smith and a vocational expert testified before an ALJ on April 21,
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2022. (AR 16.) The ALJ denied her claim on July 22, 2022.
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b.
Five Step Evaluation Process
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The ALJ follows a five-step process to determine whether a claimant is disabled
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under the Act. 20 C.F.R. § 404.1520(a). See Woods v. Kijakazi, 32 F.4th 785, 787 n.1 (9th
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Cir. 2022) (summarizing 20 C.F.R. § 404.1520(a)(4)). The claimant bears the burden of
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proof on the first four steps, but the burden shifts to the Commissioner at step five. White
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v. Kijakazi, 44 F.4th 828, 833 (9th Cir. 2022). At step three, the claimant must show that
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her impairment or combination of impairments meets or equals the severity of an
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impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R.
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§ 404.1520(a)(4)(iii). If the claimant meets her burden at step three, she is presumed
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disabled and the analysis ends. If the inquiry proceeds to step four, the claimant must show
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her residual functional capacity (“RFC”)—the most she can do with her impairments—
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precludes her from performing her past work. Id. If the claimant meets her burden at step
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four, then at step five the Commissioner must determine if the claimant is able to perform
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other work that “exists in significant numbers in the national economy” given the
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claimant’s RFC, age, education, and work experience. Id. at § 404.1520(a)(4)(v). If so, the
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claimant is not disabled. Id.
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Smith met her burden at step one and two. But the ALJ found at step three that
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Smith’s impairments or combination of impairments did not meet or medically equal a
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listed impairment. (AR 23.) After reviewing Smith’s medical record, symptom testimony,
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and third-party statements from her mother and cousin, the ALJ found at step four that
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Smith had an RFC to perform sedentary work with some additional limitations that
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included occasional stooping and sitting for six hours in an eight-hour workday. (AR 23.)
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The ALJ found that Smith’s past work as a veterinary technician and a dog groomer
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exceeded her RFC. (AR 28.)
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Based on Smith’s RFC, relevant vocational factors, and testimony from the
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vocational expert, the ALJ determined at step five that Smith could perform the jobs of
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order clerk, hand mounter, and document preparer. (AR 29.) The ALJ therefore found
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Smith not disabled. (AR 30.)
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II.
Standard of Review
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The court may set aside the Commissioner’s disability determination only if it is not
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supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625,
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630 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla but less than a
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preponderance” of evidence and is such that “a reasonable mind might accept as adequate
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to support a conclusion.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
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2005)). The court reviews only those issues raised by the party challenging the decision.
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See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001).
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III.
Discussion
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Smith asserts three errors in the ALJ’s decision requiring remand: (1) the ALJ’s
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analysis of medical opinion evidence was not based on substantial evidence; (2) the ALJ
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failed to articulate clear and convincing reasons to discount Smith’s testimony; (3) and the
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ALJ failed to analyze whether Smith’s obesity combined with functional limitations caused
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by joint pain and dysfunction medically equaled Listing 1.18. (Doc. 10 at 2.) Because the
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ALJ cherry-picked the medical opinions without adequately examining the supportability
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and consistency factors and rejected Smith’s testimony without providing clear and
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convincing reasons, the case is remanded for additional proceedings.2
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a.
Medical Opinion Evidence
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The most important factors in evaluating the persuasiveness of medical opinions are
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“supportability” and “consistency.” 20 C.F.R. § 404.1520c(a). Supportability is “the extent
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to which a medical source supports the medical opinion by explaining the
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In light of the remand, the court declines to address Smith’s third claimed error. See Hiler
v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012).
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‘relevant . . . objective medical evidence.’” Woods, 32 F.4th at 791–92 (quoting 20 C.F.R.
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§ 404.1520c(c)(1)). Consistency is “the extent to which a medical opinion is
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‘consistent . . . with the evidence from other medical sources and nonmedical sources in
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the claim.’” Id. at 792 (quoting 20 C.F.R. § 404.1520c(c)(2)). The ALJ must
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“articulate . . . how persuasive” he finds “all of the medical opinions” from each doctor or
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other source, 20 C.F.R. § 404.1520c(b), and “explain how [he] considered the
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supportability and consistency factors” in reaching these findings. 20 C.F.R.
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§ 404.1520c(b)(2). The ALJ “cannot reject an examining or treating doctor’s opinion as
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unsupported or inconsistent without providing an explanation supported by substantial
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evidence.” Woods, 32 F.4th at 792.
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Here, the ALJ gave Dr. Gordon’s opinion “partial weight” (AR 27), finding that Dr.
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Gordon overestimated Smith’s ability to carry because of her morbid obesity and
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underestimated her ability to sit and walk based on “largely normal” physical examinations
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in the medical record. (AR 27–28.) But the ALJ did so without examining the
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supportability of Dr. Gordon’s opinion, and cherry-picked from the medical records in
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implicitly evaluating consistency.
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As to supportability, Dr. Gordon’s evaluation of Smith’s mobility limitations at
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times appeared to be contradicted by his own observations. Dr. Gordon reported that Smith
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was unable to stoop during the evaluation but nonetheless concluded that she could stoop
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occasionally. (AR 1517.)3 And even when Dr. Gordon’s conclusions were supported by
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significant probative evidence, the ALJ rejected these findings without explanation if they
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supported Smith’s claims. For instance, Dr. Gordon concluded that a walker was
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“medically necessary” and observed that Smith was unable to sit on the examination table,
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had a “slow and waddling-appearing gait,” was “unable to lift each foot off the ground[,]
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stand without assistance[,] demonstrated overall difficulties with balance,” and was
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“unable to walk in tandem or stand and walk on heels and toes.” (AR 1517.) But the ALJ
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Smith’s reply brief suggests a possible reason for this inconsistency. (Doc. 13 at 6 n.1.)
Because neither party raised this explanation before the reply and neither the ALJ nor Dr.
Gordon discussed it, the court declines to speculate as to its accuracy.
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cursorily disregarded these observations by stating that use of a walker was “not consistent
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with medical documentation elsewhere in the file” and “the balance of physical
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exams . . . were rather unremarkable overall and [do] not support significant sitting
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limitations.” (AR 27.)
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In evaluating the consistency of Dr. Gordon’s findings, the ALJ failed to take into
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account the record as a whole. The ALJ found that Dr. Gordon underestimated Smith’s
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ability to sit “as the balance of physical exams . . . were rather unremarkable overall and
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[do] not support significant sitting limitations.” (AR 27.) The ALJ chose statements from
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reports summarizing Smith’s visits to her cardiologist and pulmonologist (and one report
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from her general practitioner) to support his conclusions, but even these reports
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contradicted the ALJ’s findings when viewed wholistically. For instance, the ALJ noted
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that the report from Smith’s December 17, 2021 visit to her general practitioner stated that
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she had “mildly decreased fine touch sensation in legs/feet.” (AR 27.) That same report
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concluded that Smith had “decreased range of motion,” “chronic low back pain, neck pain,
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joint pain, muscle pain,” neuropathy of both feet, and “significant swelling in the right leg”
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severe enough to warrant further evaluation for a blood clot. (AR 997, 1000.)
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The ALJ drew the bulk of support for his findings rejecting Gordon’s opinion from
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Smith’s cardiologist and pulmonologist’s reports, which were not created for the purpose
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of examining Smith’s gait and posture. (Compare AR 27 with AR 353 (cardiologist noted
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Smith “present[ed] . . . for evaluation and management of chronic diastolic heart failure.”).)
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Moreover, the conclusions of these reports as to gait and posture were not substantiated by
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their own findings. For example, the report from Smith’s January 26, 2021 visit to her
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cardiologist noted that she had “normal gait and posture” but that her legs were bandaged
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for edema and she was “unable to get up on an exam table” for an EKG. (AR 355.)
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Although an ALJ is not required to “discuss all evidence presented” to him, he “must
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explain why significant probative evidence has been rejected.” Kilpatrick v. Kijakazi, 35
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F.4th 1187, 1193 (9th Cir. 2022). The ALJ did not explain why contradictory record
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evidence was rejected in favor of “descriptions of unremarkable status examinations [that]
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did not take into account the record as a whole.” Caldwell v. Saul, 840 F. App’x 907, 910
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(9th Cir. 2020) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (an
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ALJ “may not affirm simply by isolating a specific quantum of supporting evidence.”)
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(internal quotations omitted)).
For the reasons described above, the ALJ’s conclusion was not based upon
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substantial evidence.
b. Smith’s Symptom Testimony
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The ALJ found that Smith’s medically determinable impairments “could reasonably
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be expected to cause some of the alleged symptoms,” but concluded the “intensity,
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persistence and limiting effects of these symptoms” were “not entirely consistent with the
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medical evidence and other evidence in the record.” (AR 24.) The ALJ’s failure to offer
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specific, clear, and convincing reasons for rejecting Smith’s symptom testimony is an
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additional harmful error warranting remand. Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir.
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2022).
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An ALJ evaluates the credibility of a claimant’s symptom testimony through a two-
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step analysis. Garrison v. Colvin, 759 F.3d 995, 1014. First, the ALJ determines whether
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the claimant has “presented objective medical evidence of an underlying impairment which
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could reasonably be expected to produce the pain or other symptoms alleged.” Id. (internal
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quotations omitted). The claimant is not required to show “that her impairment could
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reasonably be expected to cause the severity of the symptom she has alleged; she need only
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show that it could reasonably have caused some degree of the symptom.” Id. (internal
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quotations omitted). An ALJ may not “‘reject a claimant’s subjective complaints based
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solely on a lack of medical evidence to fully corroborate the alleged severity of pain.’” Id.
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at 494–95 (quoting Burch, 400 F.3d at 681). If the claimant satisfies this first step and the
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ALJ does not find “affirmative evidence of malingering,” he can “reject the claimant’s
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testimony about the severity of her symptoms only by offering specific, clear, and
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convincing reasons for doing so.” Smartt, 53 F.4th at 494 (internal quotations omitted).
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Here, the ALJ concluded that Smith’s impairments could reasonably be expected to
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cause some of her alleged symptoms but rejected her testimony regarding the “intensity,
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persistence and limiting effects of these symptoms” due to a lack of corroborating medical
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evidence and “generally conservative treatment overall.” (AR 24–25.) Because the ALJ
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did not find affirmative evidence of malingering, Smith’s testimony can only be rejected
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for clear and convincing reasons. The ALJ failed to provide those reasons.
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For example, the ALJ found Smith’s medical record contained “few mentions of
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back pain complaints.” (AR 25.) But Smith complained of back pain in the vast majority
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of medical reports the ALJ cited. (AR 25, 354, 361, 972, 997, 1003, 1022–23, 1035, 1038–
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39, 1050, 1065, 1068–69, 1071; 1083–1084; cf. AR 979.) Smith treated her back pain with
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gabapentin for years and was prescribed the highest available dosage by June 2021 even as
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her symptoms persisted. (See, e.g., AR 997, 1002, 1005, 1084, 1516.) Smith attempted to
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see a specialist to treat her back pain but was unable to secure an appointment. (AR 1084.)
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And she also tried to obtain a more recent MRI but could not fit into the machine. (AR 24–
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25.) To the extent the ALJ discounted Smith’s complaints of back pain without considering
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possible reasons she “might not have sought additional or more aggressive treatment,” this
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too was harmful error. See Torres v. Kijakai, No. 20-17272, 2021 WL 5638008, at *2 (9th
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Cir. Dec. 1, 2021).
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Separately, the ALJ cited a lack of medical evidence in the record to support Smith’s
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claims but ignored consistent supporting evidence when it was presented. For instance, he
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rejected Smith’s testimony regarding her need for a walker because there was “no mention
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of a walker” at earlier appointments, notwithstanding Dr. Gordon’s finding that a walker
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was “medically necessary.” (AR 25.) But “a reviewing court must consider the entire
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record as a whole and may not affirm simply by isolating a specific quantum of supporting
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evidence.” Robbins, 466 F.3d at 882 (internal quotations omitted). The ALJ also
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discredited Smith’s need to “[lie] down a total of 4 to 5 hours due to back problems”
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because she did not validate this need with a recommendation by a physician or any other
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proof it was “medically necessary.” (AR 25.) But an ALJ “cannot insist on clear medical
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evidence to support each part of a claimant’s subjective pain testimony when there is no
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objective testimony evincing otherwise.” Smartt, 53 F.4th at 498.
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Finally, the ALJ discredited Smith’s testimony due to her ability to complete some
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daily activities. But the Ninth Circuit has “repeatedly warned that ALJs must be especially
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cautious in concluding that daily activities are inconsistent with testimony about pain.”
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Garrison, 759 F.3d at 1016. Here, Smith’s daily activities were consistent with her
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statements about her pain. The ability to prepare simple meals, communicate with friends
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and family virtually, drive short distances, dress and groom herself with some assistance
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“while taking frequent hours-long rests, avoiding any heavy lifting, and lying in bed most
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of the day,” is consistent with the pain Smith described in her testimony and an inability to
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function in a workplace environment. Id.
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Accordingly, the ALJ did not provide clear, convincing, and specific reasons to
discredit Smith’s testimony regarding her pain-related impairments.
IV.
Appropriate Remedy
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Smith requested only that her case be remanded for reconsideration of the evidence.
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(Doc. 10 at 2.) Because additional proceedings may remedy defects in the original
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decision—namely the ALJ’s failure to evaluate the supportability and consistency of the
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medical evidence and to offer clear and convincing reasons for rejecting Smith’s
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testimony—remand for reconsideration is appropriate.
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Accordingly,
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IT IS ORDERED vacating and remanding the decision of the ALJ.
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IT IS FURTHER ORDERED directing the Clerk to enter final judgment
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consistent with this Order and close this case.
Dated this 25th day of September, 2024.
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