(SS) Hadzic v. Commissioner of Social Security

Filing 24

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/16/2021 GRANTING 18 Motion for Summary Judgment; DENYING 21 Cross-Motion for Summary Judgment; The Commissioner's decision is REVERESED; This matter is REMANDED for the immediate award of benefits; and The Clerk of the Court shall enter judgment for Plaintiff and close this case. CASE CLOSED. (Mena-Sanchez, L)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ZEKERIJAH HADZIC,

12
13
14
15

No. 2:20-cv-00640 CKD (SS)

Plaintiff,
v.

ORDER

ANDREW SAUL, Commissioner of Social
Security,
Defendant.

16
17
18

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

19

(“Commissioner”) denying an application for disability and disability insurance benefits under

20

Title II of the Social Security Act (“Act”) and Supplemental Security Income (“SSI”) under Title

21

XVI of the Act. The parties have consented to Magistrate Judge jurisdiction to conduct all

22

proceedings in the case, including the entry of final judgment. For the reasons discussed below,

23

the court will grant plaintiff’s motion for summary judgment and deny the Commissioner’s cross-

24

motion for summary judgment.

25

BACKGROUND

26

At the hearing on his claim in September 2018, plaintiff testified (through an interpreter)

27

to the following: He was born in Bosnia in 1966 and immigrated to the United States in 1999,

28

speaking only Bosnian. AT 47-48. In Bosnia, he was trained as a metal worker and worked on a
1

1

farm, where he drove a tractor, planted crops, and took care of animals. AT 47-49. He was

2

drafted into the Yugoslavian army and worked as a radio operator on base. AT 57-58. Plaintiff

3

testified that he witnessed genocide, including killings and dead bodies, and continued to

4

experience psychological distress from these memories. AT 59-61.

5

After the Bosnian genocide, he moved to Germany, where he worked in the lumber and

6

construction industries for seven years, loading lumber and assisting the operator of a large drill

7

that made holes in the ground. AT 50-51. After moving to the United States, he worked as a

8

truck driver for five years. AT 53.

9

In April 2016, plaintiff sought treatment for persistent back pain and muscle spasms,

10

which he ascribed to a car accident four months earlier. AT 384. He was diagnosed with acute

11

exacerbation of chronic low back pain and other chronic pain, and prescribed an opioid pain

12

reliever, Ibuprofen, and a muscle relaxant. AT 385. The medical record reflects that, over the

13

next two years, he repeatedly sought treatment for back pain and numbness in his left leg, anxiety,

14

depression, insomnia, and flashbacks.

15

Plaintiff applied on August 9, 2016 for disability benefits and SSI, alleging disability

16

beginning February 15, 2016. Administrative Transcript (“AT”) 29. Plaintiff alleged he was

17

unable to work due to anxiety, depression, paranoia, and back problems. AT 242. In a decision

18

dated December 5, 2018, the ALJ determined that plaintiff was not disabled. 1 AT 19-31. The

19
20
21
22
23
24
25
26
27
28

1

Disability Insurance Benefits are paid to disabled persons who have contributed to the
Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to
disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in
part, as an “inability to engage in any substantial gainful activity” due to “a medically
determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A).
A parallel five-step sequential evaluation governs eligibility for benefits under both programs.
See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S.
137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not, proceed to
step two.
Step two: Does the claimant have a “severe” impairment? If
so, proceed to step three. If not, then a finding of not disabled is
appropriate.
2

1
2
3
4
5
6
7
8
9

ALJ made the following findings (citations to 20 C.F.R. omitted):
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2020.
2. The claimant has not engaged in substantial gainful activity since
February 15, 2016, the alleged onset date.
3. The claimant has the following severe impairments: anxiety,
depression, posttraumatic stress disorder (PTSD); and degenerative
disc disease of the lumbar spine.
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.

13

5. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
medium work. In particular, claimant can lift/carry 50 pounds
occasionally and 25 pounds frequently; stand/walk six hours in an
eight-hour workday and sit for eight hours in an eight-hour workday.
He can occasionally climb ladders, ropes, scaffolds; frequently stoop,
crawl, and crouch. He can perform simple jobs with no public
contact and occasional interactions with supervisors and coworkers.
He can make simple workplace adjustments.

14

6. The claimant is capable of performing past relevant work.

15

7. The claimant has not been under a disability, as defined in the
Social Security Act, from February 15, 2016, through the date of this
decision.

10
11
12

16
17

AT 21-30. The ALJ noted plaintiff’s previous work as a truck driver and relied on vocational

18

expert testimony to conclude that plaintiff could perform past relevant work as a driller. AT 29.

19
20
21
22
23
24
25

Step three: Does the claimant’s impairment or combination
of impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App.1? If so, the claimant is automatically determined
disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.

26

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

27

The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the
burden if the sequential evaluation process proceeds to step five. Id.
3

28

1

The ALJ also made the following alternative findings at Step Five:

2

Although the claimant is capable of performing past relevant work,
there are other jobs existing in the national economy that he is also
able to perform. . . .

3
4

The claimant was born on XX/XX/1966 and was 50 years old, which
is defined as an individual closely approaching advanced age, on the
alleged disability onset date. The claimant has at least a high school
education and is able to communicate in English. Transferability of
job skills is material to the determination of disability because using
the Medical-Vocational Rules as a framework supports a finding that
the claimant is ‘not disabled,’ whether or not the claimant has
transferable job skills.

5
6
7
8

In the alternative, considering the claimant’s age, education, work
experience, and residual functional capacity, there are other jobs that
exist in the national economy that the claimant can also perform.

9
10
11
12

AT 29.
The ALJ found that plaintiff could not perform the full range of medium work, as his

13

“ability to perform all or substantially all of the requirements of this level of work has been

14

impeded by additional limitations.” AT 30. The ALJ relied on vocational expert testimony to

15

conclude that, given plaintiff’s age, education, work experience, and RFC, he could perform the

16

requirements of jobs including dishwasher, janitor, and laundry worker. AT 30.

17

ISSUES PRESENTED

18

Plaintiff argues that the ALJ committed the following errors in finding plaintiff not

19

disabled: (1) the ALJ erred in evaluating the medical opinions as to mental and physical

20

limitations; (2) the ALJ erred in discounting plaintiff’s subjective statements about his symptoms;

21

(3) the ALJ erred in rejecting third party testimony; and (4) the ALJ erred in identifying which

22

jobs plaintiff could perform.

23

LEGAL STANDARDS

24

The court reviews the Commissioner’s decision to determine whether (1) it is based on

25

proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record

26

as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial

27

evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340

28
4

1

F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable

2

mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th

3

Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is

4

responsible for determining credibility, resolving conflicts in medical testimony, and resolving

5

ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted).

6

“The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one

7

rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

8
9

The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th
Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s

10

conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not

11

affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see

12

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the

13

administrative findings, or if there is conflicting evidence supporting a finding of either disability

14

or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226,

15

1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in

16

weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

17

ANALYSIS

18

A. Medical Opinions

19

Plaintiff asserts that the ALJ erred in evaluating the medical opinions on physical and

20

mental limitations, such that both aspects of the RFC are unsupported by substantial evidence.

21

The weight given to medical opinions depends in part on whether they are proffered by

22

treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

23

1995). 2 Ordinarily, more weight is given to the opinion of a treating professional, who has a

24

greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80

25

2

26
27
28

For disability applications filed on or after March 27, 2017, the Commissioner revised the rules
for the evaluation of medical evidence at the administrative level. See Revisions to Rules
Regarding the Evaluation of Medical Evidence, 82 Fed. Reg 5844-01 (Jan. 18, 2017). Because
Plaintiff filed his SSI application on August 9, 2016, it is subject to the earlier rules for the
evaluation of medical evidence.
5

1

F.3d 1273, 1285 (9th Cir. 1996).

2

To evaluate whether an ALJ properly rejected a medical opinion, in addition to

3

considering its source, the court considers whether (1) contradictory opinions are in the record,

4

and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a

5

treating or examining medical professional only for “clear and convincing” reasons. Lester, 81

6

F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be

7

rejected for “specific and legitimate” reasons, that are supported by substantial evidence. Id. at

8

830. While a treating professional’s opinion generally is accorded superior weight, if it is

9

contradicted by a supported examining professional’s opinion (e.g., supported by different

10

independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala , 53 F.3d

11

1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). In

12

any event, the ALJ need not give weight to conclusory opinions supported by minimal clinical

13

findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (treating physician’s conclusory,

14

minimally supported opinion rejected); see also Magallanes , 881 F.2d at 751. The opinion of a

15

non-examining professional, without other evidence, is insufficient to reject the opinion of a

16

treating or examining professional. Lester, 81 F.3d at 831.

17

1. Dr. Tolentino

18

In determining that plaintiff could perform medium exertional work, the ALJ relied on the

19

opinion of State agency medical consultant Dr. S. Amon, who reviewed the record in January

20

2017 and opined that plaintiff could perform medium exertional work with certain postural

21

limitations.3 AT 27, citing AT 99-113.

22
23

The ALJ also reviewed the June 2018 opinion of consultative physician Dr. Ethelynda
Tolentino, who

24

examined the claimant and concluded that the claimant can
lift/carry/20 pounds occasionally and 10 pounds frequently. He can

25
26
27
28

3

The ALJ discounted the opinion of a second State agency medical consultant, Dr. A. Dipsia,
who opined that plaintiff’s physical condition was nonsevere. AT 27-28, citing AT 69-82. The
ALJ reasoned that plaintiff’s use of prescription pain medication suggested a severe impairment.
AT 28.
6

1
2
3
4

stand/walk up to four hours in an eight-hour day; sit up to six hours
in an eight-hour workday. Assistive device required would be a
standard cane provided to him by his physician. He can occasionally
climb steps/stairs, no climbing of ladders/ropes/scaffolds, no
balancing, occasional stooping, crouching, kneeling and crawling.
AT 28, citing AT 463-472.

5

In her comprehensive orthopedic evaluation, Dr. Tolentino reviewed plaintiff’s medical

6

records from April 2016 to August 2016. During these months, plaintiff was prescribed Valium

7

and ibuprofen for low back pain and underwent x-rays of his left hip, right hip, and lumbar spine.

8

AT 463. The x-rays showed no acute fracture or dislocation in the hips, and “disc disease at L2-3

9

and L3-4, and facet arthropathy at L4-5 and L5-S1.” AT 463.

10

Dr. Tolentino noted that plaintiff presented with “low back pain which radiates to his legs, but

11

is primary to the left leg.” AT 464. “His pain is aggravated by walking, sitting, and prolonged

12

positioning. The pain is alleviated by medications and lying down.” AT 464. Dr. Tolentino

13

noted that plaintiff “ambulates independently with a standard cane . . . given to him by his

14

physician.” AT 465.

15

Dr. Tolentino diagnosed plaintiff with chronic low back pain, lumbar spondylosis, lumbar

16

degenerative disc disease, and positive Waddell’s test. AT 466. Summarizing her findings, Dr.

17

Tolentino wrote:

18
19
20
21
22
23
24
25

The claimant has been complaining of low back pain for 2 ½ years.
The pain radiates to both legs and he complains of numbness and
tingling sensation in his legs when walking. This is a really difficult
examination because there are positive Waddell’s signs. The
claimant also refused to perform lumbar spine range of motion due
to fear of falling. He had break-away weaknesses in both lower
extremities and so it is really difficult to assess the strength in his
legs, but he had good strength in both upper extremities. There is no
atrophy in his extremities. The only imaging study available is xrays of the lumbar spine which showed degenerative disc disease and
spondylosis. Additional imaging studies, in this case, MRI of the
lumbar spine, would help to further render an objective basis for this
claimant’s medical problem with his back. It is really difficult to rule
out the possibility of lumbar radiculitis/radiculopathy.

26

AT 467. Dr. Tolentino concluded that plaintiff had a medical condition imposing physical

27

limitations (summarized above, including a four-hour limit on standing/walking and a six-hour

28

limit on sitting) for at least 12 continuous months. AT 28. As to the opined postural limitations,
7

1

Dr. Tolentino added: “Again, it is difficult to give more restrictions than these because I have no

2

other objective basis for doing so other than the lumbar degenerative disc disease and lumbar

3

spondylosis that is seen on the [July 2016] x-rays.” AT 467.

4

The ALJ discounted this opinion, reasoning as follows:

5

The opinion of (CE) Dr. Tolentino is afforded less weight. Her ownauthored notes indicate that she has questions unanswered. She
indicated examination was difficult because there are positive
Waddell’s signs. The claimant also refused to perform lumbar spine
range of motion. He had good strength in both upper extremities and
no atrophy. Moreover, Dr. Tolentino’s opinion is inconsistent with
other medical opinions in the record in regard to stand/walk
limitations.

6
7
8
9
10

AT 28.

11

Under the applicable rules, the contradicted opinion of an examining doctor may be

12

rejected for “specific and legitimate” reasons, supported by substantial evidence. The ALJ’s first

13

reason for discounting Dr. Tolentino’s opinion was that she had “unanswered questions” during

14

the exam. As set forth above, without the aid of an MRI, she found it “really difficult to rule out

15

the possibility of lumbar radiculitis/radiculopathy.” AT 467.

16

In fact, in August 2017, ten months before Dr. Tolentino’s evaluation, plaintiff underwent

17

an MRI of the lumbar spine that showed multiple disc bulges, multilevel spondylosis 4, and mild

18

to moderate stenosis 5 in two places. AT 570. In April 2018, weeks before Dr. Tolentino’s

19

orthopedic evaluation, treating pain specialist Dr. Sara Nicknam diagnosed plaintiff with lumbar

20
21

4

24

“Spondylosis is another name for symptomatic, degenerative arthritic changes in the spine,
commonly referred to as arthritis. . . . For patients suffering with lumbar (low-back) spondylosis
the symptoms may include generalized aching, pain, or stiffness in the low back, including
muscle spasms or tightness. If there is pressure on the spinal nerves you may have numbness,
tingling, pain, or weakness in the legs also known as a radiculopathy.” Source:
https://www.spinemd.com/what-we-treat/neck/spondylosis/ (last visited July 14, 2021).

25

5

22
23

26
27
28

“Lumbar spinal stenosis is a narrowing of the spinal canal in the lower part of your back.
Stenosis, which means narrowing, can cause pressure on your spinal cord or the nerves that go
from your spinal cord to your muscles.” Source:
https://www.hopkinsmedicine.org/health/conditions-and-diseases/lumbar-spinal-stenosis (last
visited July 14, 2021).
8

1

spondylosis with radiculopathy, and prescribed a back brace to wear “for flareups . . . for 3-5 days

2

at a time to prevent muscle weakness.” AT 810. The ALJ does not address this medical

3

evidence, and Dr. Tolentino did not have the opportunity to review it, though she explicitly stated

4

that an MRI of the lumbar spine would have helped to objectively assess plaintiff’s back

5

problems. It is not clear why Dr. Tolentino was only able to review medical records from 2016,

6

but in any case, the fact that she had “unanswered questions” is not a valid reason to discount her

7

opinion.

8

The ALJ also cited difficulty of examination and Waddell’s signs as reasons to discount

9

Dr. Tolentino’s opinion. The Waddell test “establishes five ‘signs’ of nonorganic sources of

10

lower back pain and does not distinguish between malingering and psychological conditions.”

11

Wick v. Barnhart, 173 F. App’x 597, 598 (9th Cir. 2006). “Notably, the Ninth Circuit has raised

12

considerable doubt about the adequacy of ‘Waddell tests’ to establish a claimant's malingering in

13

recent years.” Castro v. Colvin, 2015 WL 9470939, at *2 (C.D. Cal. Dec. 28, 2015). “To have

14

practical meaning and constitute substantial evidence in the disability context, a physician must

15

typically identify the number of Waddell signs observed and ascribe significance to those signs.”

16

Id. at *3 (internal quotation marks and citation omitted, alterations normalized). The Ninth

17

Circuit has rejected Waddell signs when the source fails to identify either the number of signs or

18

“whether they were attributable to malingering rather than psychological conditions.” Wick, 73

19

F. App’x at 598.

20

Here, Dr. Tolentino did not identify the number of signs or whether they were attributable

21

to malingering or psychological conditions; thus, her reference to Waddell’s signs is of little

22

probative value. Her opinion reflects that plaintiff “refused to perform lumbar spine range of

23

motion due to fear of falling.” In fact, plaintiff had expressed such fears in other medical settings

24

and used a cane to help keep his balance. See AT 712 (2017 medical note that plaintiff rose very

25

slowly from sitting to standing and used a cane); AT 641 (2017 medical note that plaintiff had

26

been in severe pain and was scared because he had been falling a lot); AT 637 (plaintiff

27

prescribed a walker to prevent falls and help with ambulation); AT 541 (plaintiff reported he was

28

not falling as much with use of walker); AT 476 (2018 visit to ER after a fall that worsened
9

1

plaintiff’s back pain and broke his dental bridge); AT 513 (2018 report that plaintiff was scared

2

and had been falling). Plaintiff’s history of falls and muscle weakness, coupled with his well-

3

documented anxiety and fear, suggest he was genuinely worried about falling during the

4

examination, which made it difficult to evaluate his lumbar range of motion. This does not

5

constitute substantial evidence against Dr. Tolentino’s medical opinion.

6

The ALJ’s final reason for discounting Dr. Tolentino’s opinion was its inconsistency with

7

the State agency doctors’ opinions with respect to stand/walk limitations. However, as noted

8

above, the only other two doctors to opine on plaintiff’s physical limitations did not have access

9

to his medical records after January 2017, including his lumbar MRI and his ongoing problems

10

with back pain, weakness, and falls. Moreover, as an examining physician, Dr. Tolentino’s

11

opinion is entitled to more weight than reviewing physicians’ opinions under the applicable rules.

12

See Taylor v. Comm’r of Soc. Sec., 659 F.3d 1228, 1233 (9th Cir. 2011) (ALJ erroneously

13

rejected examining physician opinion because it was inconsistent with the State agency physician

14

opinion).
Based on the foregoing, the undersigned concludes that the ALJ committed reversible

15
16

error in evaluating the opinion of examining physician Dr. Tolentino, such that the physical RFC

17

is not supported by substantial evidence. 6

18

B. Credibility

19

Plaintiff asserts that the ALJ also committed reversible error in discounting plaintiff’s

20

subjective statements about his symptoms.
The ALJ summarized plaintiff’s hearing testimony, writing in part:

21
22

[C]laimant testified that he is unable to work due to back pain and
left leg sometimes goes numb. He has a walker with seat because
sometimes he loses feelings in his legs and falls. He says pain is
relieved with Norco and Morphine. He also suffers from depression
and insomnia. He also has trauma from genocide in Bosnia causing
flashbacks, seeing killings and dead bodies, causing trouble with
restorative sleep. There are days that he isolates and does not like to
leave his room.

23
24
25
26
27
28

6

The court does not reach the issue of whether the ALJ erred in evaluating the mental health
opinions.
10

1

AT 25; see AT 53-55, 59-62.

2

Plaintiff made many similar statements about his physical and mental symptoms during

3

the alleged period of disability. In an August 2016 written statement, for example, he indicated

4

that it was hard to get dressed because he couldn’t bend over due to back pain. AT 249. He

5

stated that he could not lift more than 20 pounds or walk or sit more than 30 minutes, and that he

6

used a walker or cane when he walked. AT 253-254. In November 2017, he told licensed

7

clinical social worker (LCSW) Shawn Hackett that he had been in a lot of really bad pain that

8

made him want to cry, and that he heard noises that sounded like plates crashing together. AT

9

641. One month later, he told LCSW Hackett that he was having flashbacks, nightmares, anxiety,

10

and panic attacks, and that “everything is too loud in my ears.” AT 541. His wife, who was

11

present and translating for him, told Hackett she believed that plaintiff’s panic attacks and anxiety

12

were related to trauma he experienced in the Bosnian wars in the 1990s. AT 541.

13

The ALJ found that plaintiff’s statements concerning the intensity, persistence, and

14

limiting effects of his symptoms “are not entirely consistent with the medical evidence and other

15

evidence in the record for the reasons explained in this decision. Accordingly, these statements

16

have been found to affect the claimant’s ability to work only to the extent they can be reasonably

17

accepted as consistent with the objective medical and other evidence.” AT 25. The ALJ

18

reasoned that plaintiff’s subjective statements were “diminished because those allegations are

19

greater than expected in light of the objective evidence of record discussed below.” AT 25.

20

The ALJ then summarized the record as to chronic back problems, citing evidence that

21

“the medications are helping with pain and that overall he is able to function.” AT 26. The ALJ

22

next summarized the mental health record, concluding that plaintiff’s “mental health condition

23

appears similarly well controlled.” AT 26-27. The ALJ then summarized the medical opinion

24

evidence, determining that “the claimant’s allegations are inconsistent with medical opinions that

25

show the claimant has considerable work-related abilities despite his impairments.” AT 27.

26

The ALJ determines whether a disability applicant is credible, and the court defers to the

27

ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g.,

28

Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an
11

1

explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v.

2

Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be

3

supported by “a specific, cogent reason for the disbelief”). “Without affirmative evidence

4

showing that the claimant is malingering, the Commissioner’s reasons for rejecting the claimant’s

5

testimony must be clear and convincing.” Morgan v. Commissioner of Social Sec. Admin., 169

6

F.3d 595, 599 (9th Cir. 1999).

7

The Ninth Circuit recently clarified that, when discounting subjective testimony, an ALJ

8

must provide “specific, clear, and convincing reasons for doing so.” Wade v. Saul, 850 F. App’x

9

568, 569 (9th Cir. 2021) (emphasis in original), citing Lambert v. Saul, 980 F.3d 1266, 1277–78

10

(9th Cir. 2020).

11

To be sure, we confirm our precedent does “not require ALJs to
perform a line-by-line exegesis of the claimant’s testimony....”
Lambert, 980 F.3d at 1277. But the ALJ’s detailed overview of [the
claimant’s] medical history—coupled with a nonspecific boilerplate
conclusion that her testimony was “not entirely consistent” with her
medical treatment—was not enough to satisfy the minimal
requirements for assessing credibility. Id. at 1277–78; see BrownHunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (“We cannot
review whether the ALJ provided specific, clear, and convincing
reasons for rejecting [claimant’s symptom] testimony where, as here,
the ALJ never identified which testimony she found not credible, and
never explained which evidence contradicted that testimony.”).
Summarizing [the claimant’s] testimony about her limitations from
her mental impairments, and later mentioning that her symptoms
improved with medication and treatment, does not provide clear and
convincing reasons to discredit that testimony. See Lambert, 980
F.3d at 1278. This is reversible error. Id. (“Because the ALJ did not
provide enough ‘reasoning in order for us to meaningfully determine
whether the ALJ’s conclusions were supported by substantial
evidence,’ we cannot treat the error as harmless.” (quoting Treichler
v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir.
2014))).

12
13
14
15
16
17
18
19
20
21
22
23

Wade, 850 F. App’s at 569.

24

Similarly, here, the ALJ’s boilerplate assertions that plaintiff’s testimony was somewhat

25

inconsistent with the medical record, review of the objective evidence and opinions, and

26

observations that plaintiff’s physical and mental symptoms improved with treatment, are not

27

////

28
12

1

legally sufficient to reject plaintiff’s testimony under the Lambert standard. The undersigned

2

finds reversible error on this basis as well. Plaintiff is entitled to summary judgment. 7

3

CONCLUSION

4

With error established, the court has the discretion to remand or reverse and award

5

benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded

6

under the “credit-as-true” rule for an award of benefits where:

7

(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed to
provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would be
required to find the claimant disabled on remand.

8
9
10
11

Garrison, 759 F.3d at 1020. Even where all the conditions for the “credit-as-true” rule are met,

12

the court retains “flexibility to remand for further proceedings when the record as a whole creates

13

serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social

14

Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015)

15

(“Unless the district court concludes that further administrative proceedings would serve no

16

useful purpose, it may not remand with a direction to provide benefits.”); Treichler v.

17

Commissioner of Social Sec. Admin.,, 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ

18

makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand

19

the case to the agency.”).
Here, the record has been fully developed, and further administrative proceedings would

20
21

serve no useful purpose. In this regard, the voluminous record includes multiple medical

22

opinions, medical evidence, plaintiff’s testimony, lay witness testimony, and the testimony of a

23

vocational expert. As discussed above, the ALJ has failed to provide legally sufficient reasons for

24

rejecting evidence. If the examining physician’s opinion as to physical limitations and plaintiff’s

25

subjective statements about his physical and mental symptoms were credited as true, the ALJ

26

would be required to find the claimant disabled on remand. See AT 65-66 (vocational expert

27
28

7

The court does not reach the remaining claims.
13

1

testimony that “using a walker would rule out all of the jobs I provided, as well as the past job of

2

driller,” and that missing two days of work a month for mental health reasons would also preclude

3

all work). Moreover, the record as a whole does not create serious doubt as to whether plaintiff

4

is, in fact, disabled within the meaning of the Social Security Act.

5

Accordingly, IT IS HEREBY ORDERED that:

6

1. Plaintiff’s motion for summary judgment (ECF No. 18) is granted;

7

2. Defendant’s cross-motion for summary judgment (ECF No. 21) is denied;

8

3. The Commissioner’s decision is reversed;

9

4. This matter is remanded for the immediate award of benefits; and

10
11

5. The Clerk of the Court shall enter judgment for plaintiff and close this case.
Dated: July 16, 2021
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16

2/hadzic0640.ssi.ckd

17
18
19
20
21
22
23
24
25
26
27
28
14