Stone v. Kijakazi

Filing 21

ORDER Regarding Joint Motion for Judicial Review. Signed by Magistrate Judge Lupe Rodriguez, Jr on 2/6/2024.(All non-registered users served via U.S. Mail Service)(CC:SSA) (exs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SHELLEY S.,1

Case No.: 22cv1499-LR
Plaintiff,

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v.

ORDER REGARDING JOINT
MOTION FOR JUDICIAL REVIEW

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MARTIN O’MALLEY,
Commissioner of Social Security,2

[ECF NO. 20]

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Defendant.

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On October 3, 2022, Shelley S. (“Plaintiff”) filed a Complaint pursuant to 42

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U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social

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Security (“Defendant”) denying Plaintiff’s application for a period of disability and

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disability insurance benefits. (ECF No. 1.) The parties consented to Magistrate Judge

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jurisdiction. (ECF No. 8). Now pending before the Court is the parties’ “Joint Motion”

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Pursuant to Civil Local Rule 7.1(e)(6)(b), the Court’s opinions in Social Security cases filed under
42 U.S.C. § 405(g) “refer to any non-government parties by using only their first name and last initial.”
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Plaintiff named Kilolo Kijakazi, who was the Acting Commissioner of Social Security when Plaintiff
filed her Complaint on October 3, 2022, as a Defendant in this action. (See ECF No. 1 at 1.) Martin
O’Malley is now the Commissioner of Social Security, and he is automatically substituted as a party
pursuant to Federal Rule of Civil Procedure 25(d).
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seeking judicial review. (ECF No. 20 (“J. Mot.”).) For the reasons discussed below, the

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final decision of the Commissioner is REVERSED, and the case is REMANDED to the

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Commissioner for the CALCULATION AND AWARD OF BENEFITS.

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I. PROCEDURAL BACKGROUND
A.

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Initial Proceedings
On February 7, 2013, Plaintiff filed an application for a period of disability and

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disability insurance benefits, alleging disability beginning on December 15, 2011. (ECF

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No. 12 (“AR”)3 at 126–27.) After her application was denied initially and upon

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reconsideration, (id. at 39–51, 53–64), Plaintiff requested an administrative hearing

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before an administrative law judge (“ALJ”), (id. at 82–83). An administrative hearing

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was held before ALJ Keith Dietterle on April 7, 2016. (Id. at 635–61.) Plaintiff appeared

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at the hearing with counsel, and testimony was taken from her and a vocational expert

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(“VE”). (Id.) The ALJ issued an unfavorable decision on May 2, 2016.4 (Id. at 20–37.)

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The ALJ conducted the five-step sequential evaluation process in reaching his

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unfavorable decision. (Id. at 25–33.) At step one, the ALJ determined that Plaintiff did

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not engage in substantial gainful activity from December 11, 2011, the alleged onset date,

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through December 31, 2017, the date last insured. (Id. at 25.) At step two, the ALJ

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determined that Plaintiff had the following severe impairments: sprains/strains and

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chronic pain syndrome. (Id. at 25–27.) At step three, the ALJ determined that Plaintiff

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did not have an impairment or combination of impairments that met or medically equaled

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the severity of one of the impairments listed in the Commissioner’s Listing of

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Impairments. (Id. at 28.) The ALJ then found that Plaintiff had the residual functional

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“AR” refers to the Administrative Record filed on December 23, 2022. (ECF No. 12.) The Court’s
citations to the AR in this Order are to the page numbers listed on the original document rather than the
page numbers designated by the Court’s Case Management/Electronic Case Filing System (“CM/ECF”).
For all other documents, the Court’s citations are to the page numbers affixed by CM/ECF.
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The “Court Transcript Index” in the AR incorrectly lists the “ALJ Hearing Decision” date as April 27,
2016. (AR at 1.)
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capacity (“RFC”) to perform the full range of light work as defined in 20 CFR

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§ 404.1567(b). (Id. at 28–32.) At step four, the ALJ determined that Plaintiff was

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capable of performing her past relevant work as a mortgage officer. (Id. at 32.) The ALJ

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then determined that Plaintiff was not disabled from December 15, 2011, the alleged

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onset date, through May 2, 2016, the date of the ALJ’s decision. (Id. at 32–33.) On

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June 23, 2017, the Appeals Council denied Plaintiff’s request for review. (Id. at 1–7.)

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On September 7, 2017, Plaintiff filed a complaint seeking review of the final

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decision of the Commissioner in the United States District Court for the Southern District

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of California. (Id. at 758–67.) On May 17, 2018, United States Magistrate Judge Robert

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N. Block issued a Report and Recommendation recommending that Plaintiff’s motion for

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summary judgment be granted, the Commissioner’s cross-motion for summary judgment

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be denied, and that the case be remanded for further administrative proceedings. (Id. at

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771–81); see also Stone v. Berryhill, Case No.: 3:17-cv-1689-W (RNB), 2018 WL

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2317549, at *1 (S.D. Cal. May 17, 2018). Notably, the parties raised, and Judge Block

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addressed, the exact issues raised in this action: (1) whether the ALJ properly rejected the

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opinion of Dr. Vakas Sial, and (2) whether the ALJ properly rejected Plaintiff’s pain and

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symptom testimony. (AR at 773). Judge Block found that (1) the ALJ failed to follow

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the proper legal standards when he rejected the opinion of Dr. Sial, and (2) the ALJ

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improperly rejected Plaintiff’s pain and symptom testimony. (Id. at 774–79). On July 6,

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2018, United States District Judge Thomas J. Whelan adopted Judge Block’s Report and

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Recommendation, and remanded the case for further administrative proceedings. (Id. at

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768–70); see also Stone v. Berryhill, Case No.: 17cv1689-W-RNB, 2018 WL 3327873, at

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*1–2 (S.D. Cal. July 6, 2018).

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B.

Proceedings After First Remand

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ALJ Randolph E. Schum presided over the case on remand, and on July 3, 2019,

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conducted an administrative hearing. (Id. at 707–33.) Plaintiff appeared at the hearing

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with counsel, and testimony was taken from her and a VE. (Id.) On September 13, 2019,

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ALJ Schum issued an unfavorable decision. (Id. at 812–30.)
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At step one of the five-step sequential evaluation process, the ALJ determined that

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Plaintiff did not engage in substantial gainful activity from December 11, 2011, the

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alleged onset date, through December 31, 2017, the date last insured. (Id. at 818.) At

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step two, the ALJ determined that Plaintiff had the following severe impairments:

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“residual of lumbar surgery”5 and chronic pain syndrome. (Id.) At step three, the ALJ

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determined that Plaintiff did not have an impairment or combination of impairments that

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met or medically equaled the severity of one of the impairments listed in the

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Commissioner’s Listing of Impairments. (Id. at 820.) The ALJ then determined that

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Plaintiff had the RFC to perform sedentary work, as defined in 20 CFR 404.1567(a),

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except that Plaintiff was limited to:

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[l]ifting and carrying ten pounds occasionally and less than ten pounds
frequently; standing and walking for up to two hours total in an eight-hour
workday; sitting for at least six hours total in an eight-hour workday;
occasional climbing of ramps, stairs, ropes, ladders, and scaffolds;
occasional stooping, kneeling, crouching, and crawling; and [that Plaintiff]
should avoid concentrated exposure to extreme cold, unprotected heights,
vibration, and moving and dangerous machinery.

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(Id.) At step four, the ALJ found that Plaintiff was capable of performing her past

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relevant work as a loan officer/broker. (Id. at 823–24.) The ALJ then determined that

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Plaintiff was not disabled from December 15, 2011, the alleged onset date, through

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December 31, 2017, the date last insured. (Id. at 824.)

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Plaintiff underwent a lumbar decompression and Tarlov cyst excision on December 12, 2006, and
suffered from numerous ailments after this procedure. (Id. at 2326–27.) Tarlov cysts are “fluid-filled
sacs that are usually found at the bottom of the spine (the sacrum). The cysts appear in the roots of the
nerves that grow out of the spinal cord.” See https://www.ninds.nih.gov/healthinformation/disorders/tarlovcysts#:~:text=Tarlov%20cysts%20%28also%20known%20as%20meningeal
%20cysts%20or,spinal%20fluid%20in%20the%20cysts%20to%20build%20up. (last visited February 6,
2024).

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On October 15, 2019, Plaintiff filed exceptions from the ALJ’s unfavorable

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decision to the Appeals Council. (Id. at 893–97.) On September 28, 2020, the Appeals

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Council granted Plaintiff’s exceptions and remanded the case back to the ALJ, finding

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that the ALJ’s decision did “not comply with the district court or Appeals Council

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remand orders regarding adequate evaluation of opinion evidence provided by

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consultative examiner, Vakas Sial, M.D., as well as the evaluation of the claimant’s

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subjective complaints.” (Id. at 831, 833; see also id. at 834–37.) The Appeals Council

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instructed the ALJ to: (1) further evaluate Plaintiff’s alleged symptoms and provide

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rationale in accordance with 20 CFR § 404.1529; (2) give further consideration to the

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treating and non-treating source opinions pursuant to 20 CFR § 1527, and explain the

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weight given to such opinion evidence; (3) reevaluate the statements by Plaintiff’s

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daughter and provide specific reasons for the weight accorded; (4) give further

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consideration to Plaintiff’s maximum RFC and provide appropriate rationale with

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specific references to evidence in the record in support of the assessed limitations;

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(5) give further consideration to whether Plaintiff has past relevant work and, if so,

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whether Plaintiff can perform it; and (6) if warranted, obtain supplemental evidence from

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a VE to determine whether Plaintiff has acquired any skills transferrable to other

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occupations. (Id. at 834–35.)

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C.

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Proceedings After Second Remand
ALJ Schum again presided over the remanded matter and conducted an

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administrative hearing on February 7, 2022. (Id. at 735–51.) Plaintiff appeared at the

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hearing with counsel, and testimony was taken from her and a VE. (Id.) On February 22,

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2022, ALJ Schum issued an unfavorable decision. (Id. at 668–89.) The ALJ found that

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Plaintiff had not been under a disability, as defined in the Social Security Act, from

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December 11, 2011, the alleged onset date, through December 31, 2017, the date last

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insured. (Id. at 682.) The ALJ’s decision became the final decision of the Commissioner

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on August 4, 2022, when the Appeals Council denied Plaintiff’s request for review. (Id.

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at 662–67.) This timely civil action followed. (See ECF No. 1.)
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II. SUMMARY OF THE ALJ’S FINDINGS

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ALJ Schum conducted the five-step sequential evaluation process in reaching his

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unfavorable decision. (AR at 674–82.) At step one, the ALJ determined that Plaintiff did

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not engage in substantial gainful activity from her alleged onset date of December 11,

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2011, through the date last insured of December 31, 2017. (Id. at 674.) At step two, the

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ALJ determined that Plaintiff had the following severe impairments: “residuals of lumbar

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surgery6 with chronic pain syndrome of the sacral area with a history of cysts.” (Id.) At

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step three, the ALJ found that Plaintiff did not have an impairment or combination of

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impairments that met or medically equaled the severity of one of the impairments listed

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in the Commissioner’s Listing of Impairments. (Id. at 677.)

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The ALJ then determined that Plaintiff had the RFC to perform sedentary work, as
defined in 20 CFR 404.1567(a), except Plaintiff was limited to:

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[l]ifting and/or carrying ten pounds occasionally and less than ten pounds
frequently; stand and/or walk for up to two hours in an eight-hour day; sit
for at least six hours in an eight-hour day; never climb ropes ladders or
scaffolds; occasionally climb ramps and stairs, balance, stoop, kneel, crouch,
and crawl; and [that Plaintiff] should avoid concentrated exposure to
extreme cold, vibration, unprotected heights, and moving and dangerous
machinery.

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(Id.) At step four, the ALJ found that Plaintiff was capable of performing her past

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relevant work as a loan officer/broker. (Id. at 681–82.) The ALJ then determined that

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Plaintiff was not disabled from December 15, 2011, the alleged onset date, through

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December 31, 2017, the date last insured. (Id. at 682.)

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See supra n.5.
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III. DISPUTED ISSUES

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As reflected in the parties’ Joint Motion, Plaintiff is raising the following issues:

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1. Whether the ALJ properly considered Plaintiff’s testimony. (J. Mot. at 6.)

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2. Whether the ALJ provided specific and legitimate reasons to reject the

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opinion of the consultative examiner, Dr. Sial. (Id.)

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IV. STANDARD OF REVIEW

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Section 405(g) of the Social Security Act allows unsuccessful applicants to seek

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judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of

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judicial review is limited, and the denial of benefits will not be disturbed if it is supported

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by substantial evidence in the record and contains no legal error. See id.; Buck v.

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Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). “Substantial evidence means more than a

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mere scintilla, but less than a preponderance. It means such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Revels v. Berryhill,

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874 F.3d 648, 654 (9th Cir. 2017) (quoting Desrosiers v. Sec’y Health & Hum. Servs.,

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846 F.2d 573, 576 (9th Cir. 1988)). In determining whether the Commissioner’s decision

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is supported by substantial evidence, a reviewing court “must assess the entire record,

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weighing the evidence both supporting and detracting from the agency’s conclusion,”

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and “may not reweigh the evidence or substitute [the court’s] judgment for that of the

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ALJ.” Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). Where the evidence can be

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interpreted in more than one way, the court must uphold the ALJ’s decision. Id. at 1115–

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16; Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016). The Court may consider “only

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the reasons provided by the ALJ in the disability determination and may not affirm the

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ALJ on a ground upon which [he or she] did not rely.” Revels, 874 F.3d at 654 (internal

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quotation omitted).

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V. RELEVANT MEDICAL RECORDS7 AND TESTIMONY

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A.

Treating Physicians

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1. Dr. Bakst

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On October 17, 2012, Dr. Bakst, a neurologist, examined Plaintiff. (Id. at 279–80.)

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Dr. Bakst reported the following:

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[Plaintiff] has had problems with her feet for years, with the initial
symptoms [that included] soreness, and the sense that she was walking on
glass. Some years ago, or just prior to 2006, a Tarlov cyst was identified in
her lumbar spine and she had surgery. Subsequent to that, pain in the left
lower extremity increased apparently due to scarring. It got so bad that she
could not sit or sleep[,] and this went on for years. She finally went to
physical therapy and found one particular therapist who treated her for about
a year with significant resolution of these symptoms. This particular
treatment ended six months ago.

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(Id. at 279.)

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Dr. Bakst noted that Plaintiff had been diagnosed with peripheral neuropathy and

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questioned the severity of Plaintiff’s previous diagnosis of small fiber neuropathy, which

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was established through a 2010 electromyography and nerve conduction study. (Id.) On

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April 8, 2013, Dr. Bakst referred Plaintiff to cognitive behavioral therapy to manage her

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pain. (Id. at 281.)

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2. Dr. Samarasinghe

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On February 15, 2013,8 Plaintiff was evaluated by Dr. Samarasinghe, an Internal

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Medicine specialist. (Id. at 292.) Dr. Samarasinghe documented Plaintiff’s reports of left

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buttock pain and difficulty sitting. (Id.; see also id. at 214, 304.)

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Relevant medical records summarized below focus on Plaintiff’s limitations on her ability to sit,
which is at issue in this case.
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The Court notes that Plaintiff’s medical records contain notes from twelve previous appointments
Plaintiff had with Dr. Samarasinghe to address chronic pain: November 17, 2010; December 8, 2010;
January 12, 2011; March 14, 2011; June 3, 2011; September 11, 2011; December 1, 2011; March 9,
2012; August 3, 2012; October 17, 2012; and December 14, 2012. (Id. at 215–16, 218, 220–30.)
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3. Dr. Jiu

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On May 21, 2014, Dr. Jiu examined Plaintiff to “establish new patient” and for

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“PCP Bonding.” (Id. at 470–71.) Dr. Jiu noted: “Musculoskeletal: Normal Range of

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Motion,” and “Neurological: She is alert and oriented to person, place, and time. No

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cranial nerve deficit. Gait normal.” (Id. at 471.) Dr. Jiu did not specify any limitations

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on Plaintiff’s ability to sit during the appointment and focused on Plaintiff’s “allergic

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rhinitis.” (Id. at 471–72.) She also requested an Allergy Department consultation to

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address Plaintiff’s alleged sinus issues. (Id. at 474).

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4. Dr. Macy
On May 28, 2014, Dr. Macy, an allergist, examined Plaintiff at Dr. Jiu’s request to

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address Plaintiff’s rhinitis and “throat clearing.” (Id.) Dr. Macy’s physical examination

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focused on Plaintiff’s alleged sinus and throat issues, and noted “Neurological: [Plaintiff]

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is alert and oriented to person, place, and time.” (See id. at 474–76.)

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5. Dr. Rosen

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On February 8, 2016, Plaintiff had a cortisone injection; and on May 11, 2016,

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Plaintiff reported that “the cortisone injection and Methadone worked great together,”

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and that she obtained some level of relief that lasted for two months. (Id. at 1154.)

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Plaintiff also stated that she could not “stretch because her sitting bone area gets

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aggravated” and requested cortisone injections every four months, rather than every six

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months. (Id.) Plaintiff reported having the same symptoms as before she had received

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the injection, including pain in left leg hamstring, and pain when sitting, and described

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her pain level as “8–10/10.” (Id.) On May 13, 2016, Dr. Rosen, a Physical Medicine and

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Rehabilitation physician, agreed to increase the frequency of injections from every six

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months to every five months, noting that “the injections may lose effectiveness if done

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too often.” (Id. at 1153.)

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On September 19, 2016, Plaintiff had another appointment with Dr. Rosen. (Id. at

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1316–23.) Dr. Rosen noted that Plaintiff’s “[l]eft sciatica [was] treated by excision of

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Tarlov cyst,” and it “[o]nly helped for about 6 weeks” before Plaintiff’s chronic pain

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returned. (Id. at 1317.) Plaintiff reported staying in bed and not being able “to do

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anything.” (Id.) Dr. Rosen also noted that Plaintiff’s physical therapy in 2010 was

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“helpful,” and that she “[d]oesn’t tolerate sitting for > 1 hr.” (Id.)

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On August 29, 2016, Dr. Rosen drafted a letter, stating that Plaintiff had been

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under his care for over two years to treat chronic lumbar pain syndrome. (Id. at 1083.)

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He further wrote the following:

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[Plaintiff] has been suffering from chronic bilateral lower extremity pains
for years, characterized as “neuropathy.” This progressed to include
disabling left sciatica which resulted in surgical treatment being
recommended. Her sacral decompression surgery in 2006 did not provide
sustained relief and may have added to her chronic daily pain, including pain
radiating to the perineal area. She has additionally been diagnosed with
lumbar spinal stenosis, which manifests as additional leg pains, and
markedly limits her ability to be active.

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(Id.)

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Dr. Rosen further stated that “[s]ince her 2006 surgery, [Plaintiff] has not been able

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to work in th[e] demanding loan business environment full time. She is unable to tolerate

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prolonged desk work and driving.” (Id.) Dr. Rosen also determined that Plaintiff’s

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“persistent chronic pain and the toll this has taken emotionally and physically, combined

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with medication negative effects . . . preclude [Plaintiff] from being able to return to

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competitive work force.” (Id.)

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On August 14, 2018, Dr. Rosen filled out a “Physical Medical Source Statement”

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form. (Id. at 1085–87.) He stated that he had been treating Plaintiff for four years and

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had been seeing Plaintiff twice per year. (Id. at 1085.) He listed the following diagnoses:

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chronic pain from lumbar spinal stenosis; failed laminectomy, with chronic sciatica; back

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pain; and hamstring injury. (Id.) Dr. Rosen wrote that Plaintiff suffers from “chronic

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lower spine & sacral pain, including left gluteal + leg pain,” and that Plaintiff can walk

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half a block “without rest or severe pain.” (Id.)

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Dr. Rosen further stated that Plaintiff can sit for ten minutes at one time before

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needing to get up, and less than two hours in an eight-hour workday. (Id.) He also

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opined that Plaintiff can stand/walk for two hours in an eight-hour day. (Id.)

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Additionally, Dr. Rosen determined that Plaintiff can lift and/or carry ten pounds

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occasionally and less than ten pounds frequently; occasionally move her head in all

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directions; rarely stoop, bend, and climb stairs; never twist, crouch, squat, and climb

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ladders; perform gross and fine manipulations for fifty percent of the workday on the

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right and ten percent on the left; and reach in all directions for five percent of the

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workday. (Id. at 1086–87.) He also opined that Plaintiff would need to take unscheduled

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breaks every two-to-four hours during an eight-hour workday, rest for twenty-to-thirty

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minutes before returning to work, and that Plaintiff would likely be “absent from work as

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a result of [her] impairment or treatment” more than four days per month. (Id.) Finally,

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Dr. Rosen wrote that Plaintiff’s “[p]ain & medication limit her ability to focus[,] which

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may result in work mistakes and safety issues.” (Id. at 1087.)

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B.

Examining Physicians

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1. Dr. Sial

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On February 5, 2014, Plaintiff had a consultative examination with Dr. Sial, an

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Internal Medicine specialist. (Id. at 303–09.) Dr. Sial reviewed Plaintiff’s medical

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records and noted that Plaintiff’s treating physician, Dr. Samarasinghe, documented in his

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progress note “left buttock pain” and “difficulty sitting.” (Id. at 304 (citing id. at 292).)

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Dr. Sial’s physical examination of Plaintiff “include[d] not only the formal examination,

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but also observation of [Plaintiff’s] movements in the examination room and ability to get

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on and off the examination table.” (Id. at 305.) Dr. Sial found that Plaintiff “ambulate[d]

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with an abnormal gait due [to] sacral pain,” and opined that Plaintiff’s left buttock and

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sacral pain would “limit [Plaintiff’s] activities.” (Id. at 307–08.) Dr. Sial determined that

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Plaintiff’s exertional limitations included the following:
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Standing and/or walking (with normal breaks) can be done for up to 2 hours
in a normal 8-hour workday.

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Sitting (with normal breaks) can be done [for] two hours. Outside of the
normal break periods, [Plaintiff] must periodically alternate sitting and
standing to relieve pain/discomfort.

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(Id. at 308.)

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2. Dr. Tran

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On October 20, 2021, Plaintiff had an orthopedic consultative examination with

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Dr. Tran, a physical medicine and rehabilitation specialist.9 (Id. at 2398–404.) Dr. Tran

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assessed Plaintiff’s functional limitations, and concluded that Plaintiff could stand and

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walk four hours in an eight-hour workday, and sit six hours in an eight-hour workday.

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(Id. at 2404.)

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3. Dr. Glazener

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On September 28, 2021, Plaintiff had a consultative examination with Dr.

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Glazener. (Id. at 703–04.) Dr. Glazer wrote the following:

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Approximately 20 years ago [Plaintiff] underwent lumbar surgery and has
had some persistent pain. She attributes it to sacral issues. She has even had
a sacral transforaminal injections in the past and they apparently have not
provided much relief. Her principal complaint is pain across the lower back
and buttock area. She is unable to sit down for any length of time because of
this severe pain. Seemed like initially it affected the area of the left posterior
thigh and lower buttock area. It is different now, it is more involved on both
sides. She does methadone and she uses ice intermittently. She avoids
sitting at all costs . . . .

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The Court notes that this examination occurred nearly four years after December 31, 2017, the date
last insured. (Id.; see id. at 682.)
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(Id. at 703.) Dr. Glazener noted during his physical examination that Plaintiff “cannot sit

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down or would not sit down,” and determined that Plaintiff was experiencing post-

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laminectomy syndrome. (Id.)

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C.

Non-Examining Physician

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Dr. Pong

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Dr. Pong, a state agency medical consultant, reviewed Plaintiff’s medical records

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on the reconsideration level of review on March 4, 2014. (Id. at 61–62.) Dr. Pong found

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that Plaintiff had the RFC to stand and/or walk with normal breaks for six hours in an

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eight-hour workday, and sit with normal breaks for six hours in an eight-hour workday.

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(Id. at 61.)

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D.

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Imaging
Plaintiff had X-rays of her lumbosacral spine on July 23, 2014. (Id. at 447.) Dr.

Elam reviewed the X-rays and found “moderate disk degeneration at L2–3.” (Id.)

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Plaintiff also had MRIs of her lumbar spine on September 8, 2014, and

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September 24, 2014. (Id. at 448–50.) Dr. Balen reviewed the MRIs and found

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“[m]oderate degenerative change of the lumbar spine; moderate central canal narrowing

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at L4/5; and multilevel mild neuroforaminal narrowing. There was grade 1

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anterolisthesis of L2 upon L3; and “[c]ystic dilatation of the nerve root sleeve

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predominately on the right at S2.” (Id.)

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On September 6, 2018, Plaintiff had an MRI of her lumbar spine. (Id. at 2048–50.)

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Dr. Nordling reviewed the MRI and found postsurgical changes in the midline upper

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sacrum; mild scattered lumbar spondylosis most pronounced at L4–5, where there was

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“deformity upon the proximal most left sided exiting nerve root,” and a “small dilated

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perineural root sleeve cyst” on the right, “disc material extend[ing] into the inferior

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aspect of the right neural foramen contour[ing] the undersurface of the exiting right L4

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nerve root without deformity.” (Id. at 2049–50.) Further, there were “[s]cattered dilated

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perineural root sleeve cysts” and “[s]cattered Tarlov cysts involving the S1–S2 level.”

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(Id.)
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1

Additionally, Plaintiff had an MRI of her sacrum and coccyx on September 7,

2

2018. (Id. at 2051.) Dr. Balen reviewed the MRI and found L4/5 posterior disc

3

protrusion” and “[f]acet degenerative changes.” (Id.) He further noted the following:

4

At the level of S1/2 multiple cystic foci are present. The largest single cystic
lesion is present off to the right side. Opportunity left-sided 1.3 cm cystic
lesion is present. Additional smaller collections are seen at the right and left
side. These are likely a combination of Tarlov cysts and dilated perineural
root sleeve cysts.

5
6
7
8

(Id. at 2051–52.) Dr. Balen listed the following impressions: (1) cystic foci at the S1/2

9

level most consistent with Tarlov cysts and dilated perineural root sleeve cysts, greater on

10

the right, and (2) moderate tendinosis of the proximal right hamstring tendons with mild

11

adjacent ischial tuberosity bursitis. (Id. at 1052.)

12

E.

Testimony during Plaintiff’s February 7, 2022 administrative hearing

13

1. Plaintiff’s testimony

14

On February 7, 2022, during her third administrative hearing, Plaintiff testified that

15

in 2007, two Tarlov cysts were discovered in her sacral area, and the cysts caused chronic

16

pain in her feet and legs. (Id. at 740.) One cyst was removed “on the left side because it

17

had gotten quite big and it was very painful.” (Id.)

18

Plaintiff testified that she had stopped working years before 2011, when she was

19

removed from the payroll at the California Public Employees’ Retirement System

20

(“CalPERS”). (Id. at 739–41.) She worked as a loan officer, and her daughter had to do

21

the bulk of Plaintiff’s work. (Id. at 740.)

22

Plaintiff also testified that due to sacral pain, sitting for more than five minutes was

23

very difficult. (Id. at 741.) When the ALJ asked Plaintiff whether physical therapy in

24

2011 increased her “tolerance of sitting up to seven hours a day,” Plaintiff responded as

25

follows: “I was never able to sit down. It’s been a—very difficult for me. I’ve been out

26

to dinner twice in the last 15 years and both times, I had to leave in the middle of dinner.”

27

(Id. at 741–42.) Plaintiff further stated that she could walk “for maybe ten minutes,” but

28

“the abrasion of walking cause[d] a lot [of] inflammation and the only remedy [wa]s pain
14
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1

medication and ice packs.” (Id. at 742.) Additionally, Plaintiff testified that she was not

2

able to work because she was not able to sit down and to move her left leg. (Id.)

3

Plaintiff also stated that she was receiving treatments and taking medications. (Id.)

4

She tried several medications to relieve her symptoms, including Oxycontin and

5

Methadone, but “the pain medication ha[d] been a disappointment.” (Id. at 742–43.)

6

Plaintiff explained that “[t]he pain medication. Well, it’s just an awful, awful feeling. It

7

just clouds your brain. You don’t think right. Your personality changes. It’s difficult to

8

string a sentence together. It’s really sad.” (Id. at 743.)

9
10

Further, when the ALJ asked Plaintiff what her doctors projected with respect to
her response to any additional treatments, Plaintiff stated the following:
It’s not good. No doctor has—you know, I get a lot of sad looks. And they
just say that they cant’s help me or wouldn’t even want to take the chance
to—they’re afraid. Several doctors have said that they’re afraid they’ll make
me worse, so they’re not going to touch me.

11
12
13
14
15
16

(Id.)
Plaintiff also testified that she “gave up” her home, sold all furniture, and moved to

17

a small apartment, and her caregiver did her grocery shopping and laundry. (Id.)

18

Plaintiff stated that two years before the administrative hearing, she had been able to go

19

to the grocery store three blocks away, but it was a “big chore,” and she used a cane to

20

get around. (Id. at 744.) Further, up to two years before the administrative hearing,

21

Plaintiff had been able to go to doctor’s appointments, vacuum her apartment, and

22

sometimes do laundry, but most of the time, Plaintiff’s daughter helped her. (Id. at 745–

23

46.) Additionally, Plaintiff stated that she was able to take a shower, but could not do it

24

often because she was “wobbly.” (Id.) Plaintiff further testified that she had been able to

25

walk her dog before, but could no longer do it at the time of the administrative hearing

26

because it was “too strenuous.” (Id.)

27
28

Plaintiff explained to the ALJ that she had stenosis in the lumbar area, to which the
ALJ replied that he was “not interested in the medical terms”; and Plaintiff then testified
15
22cv1499-LR

1

that her problems were not in the lumbar area, but rather in the sacral area. (Id. at 741.)

2

She testified that she had been bedridden for years, including the time frame between

3

2011 and 2017, and laying down helped relieve her pain if she had ice packs and pain

4

medication. (Id. at 744.) Plaintiff further stated that she could no longer sit down in her

5

vehicle, because, as confirmed by her recent MRIs, “a lot more cysts ha[d] been growing

6

over the years.” (Id.)10

7

///

8

///

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

10

The Court notes that during her first administrative hearing on April 7, 2016, Plaintiff testified that
she stopped working as a mortgage lender because she could no longer concentrate due to pain. (AR at
640.) She testified that she had a Tarlov cyst removed from S2 on her left side, and had “permanent
nerve damage on [her] sciatic nerve.” (Id.) Despite the surgery, Plaintiff was in pain “all day.” (Id.)
Without medications, Plaintiff’s pain level ranged between 6/10 and 8/10. (Id. at 640–41.) She was
prescribed Methadone, which provided some relief; however, due to medications, Plaintiff had
difficulties with concentration and memory. (Id. at 655.) Plaintiff also testified that she had problems
with her feet due to inflammation, pain, numbness, and swelling, and needed to elevate her legs for an
hour to reduce the swelling. (Id. at 642–43, 653–54.) Additionally, Plaintiff stated that she lived in a
small apartment, was able to do laundry, sweep and vacuum, but could not mop. (Id. at 644.) She could
sit for ten-to-fifteen minutes. (Id. at 654–55.) Plaintiff also testified that she took her dog on ten-minute
walks six times a day, and such walks helped her feet from getting numb. (Id. at 646, 654.) Further,
Plaintiff stated that she shopped for groceries every other week, but was in bed for about sixteen-toseventeen hours a day, had “wobbly” feet when she showered, and had difficulty “going up and down
stairs.” (Id. at 644, 646–48, 650.)
During her second administrative hearing on July 3, 2019, Plaintiff testified that although she
was initially able to work from home, and alternate between walking around the house and sitting at her
desk, her pain caused her to make many mistakes, and she was eventually fired as a mortgage lender.
(Id. at 707, 711–12.) She testified that she had a cysts removed from “S2 on the left side,” and the “cyst
was quite large” and caused “a lot of damage to the nerves in that area.” (Id. at 713.) By 2019, Plaintiff
could sit for fifteen minutes and walk for forty-five minutes a day. (Id.) She could walk her dogs and
do one errand a day, but had to be in bed for two to three hours between those activities. (Id.) Although
Plaintiff grocery shopped, there were times when she had to return home because of pain. (Id. at 715–
16.) She was prescribed Methadone and received pain injections every five months, which initially
provided relief for about three months, but subsequent injections provided relief for two months. (Id. at
719–20.) Because of chronic pain, Plaintiff had to lay down eighteen-to-twenty hours per day. (Id. at
720.) On a bad day, she walked the dogs, did dishes or other chores, and had to go back to bed. (Id. at
721.)

28
16
22cv1499-LR

1

2. Examination of the VE

2

During Plaintiff’s administrative hearing, ALJ Schum posed the following

3

hypothetical to the VE:
It’s opined that this hypothetical claimant can lift and carry ten pounds
occasionally, less than ten pounds frequently. Can stand or walk for up to
two hours out of eight, sit for at least six. Should never climb ropes, ladders,
or scaffolds. Can occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl. She should avoid[] concentrated exposure to extreme
cold, vibration, unprotected heights and moving and dangerous machinery.

4
5
6
7
8
9

(Id. at 747–48 (emphasis added).) Under these limitations, the VE opined that such

10

individual could return to past relevant work, but “not as [Plaintiff] always performed it,

11

according to her testimony.” (Id. at 748.)
Plaintiff’s counsel then posed the same hypothetical question, but restricted the

12
13

individual’s ability to sit to four hours in an eight-hour workday. (Id. at 748–49.) The

14

VE opined that such an individual would not be able to perform Plaintiff’s past relevant

15

work, and that such individual’s RFC would be considered less than sedentary. (Id. at

16

749.)

17
18

VI. DISCUSSION
A.

The ALJ Improperly Discounted Plaintiff’s Testimony

19

1. Parties’ arguments

20

Plaintiff contends that the ALJ erred by failing to provide specific, clear, and

21

convincing reasons for rejecting Plaintiff’s testimony regarding her pain and limitations.

22

(J. Mot. at 9, 25.) Plaintiff alleges that the ALJ failed to consider Plaintiff’s July 2014 X-

23

rays and September 2014 MRIs of lumbar spine. (Id. at 10.) Plaintiff further states that

24

the ALJ isolated a small period of time during which Plaintiff experienced some relief

25

from physical therapy, but ignored numerous records showing that Plaintiff’s

26

improvement was temporary, and her symptoms of pain and numbness in the lower

27

extremities increased overtime. (Id. at 11–12.) Plaintiff also alleges that her daily

28

activities do not contradict her testimony and do not demonstrate that she is able to spend
17
22cv1499-LR

1

a substantial part of the day doing activities transferrable to a work setting, because the

2

majority of activities that the ALJ cited “were done in 10-minute time frames for a total

3

of one hour in a 24-hour day; or done very minimally; or required much more rest after

4

doing them.” (Id. at 14–17.)
Defendant argues that the ALJ summarized Plaintiff’s allegations and

5
6

“incorporated by reference the summary of medical and nonmedical evidence contained

7

in the previous two decisions.” (Id. at 20.) Defendant also contends that the ALJ gave

8

Plaintiff’s statements less weight because they were inconsistent with the medical record.

9

(Id. at 20–21.) Defendant further asserts that the ALJ properly found that Plaintiff’s pain

10

had been well managed with medication and other treatments, and her daily actives

11

showed that she “retained functional abilities.” (Id. at 21–23.) Finally, Defendant

12

maintains that even if the ALJ erred, the error was harmless because the ALJ provided

13

other “bases for discounting Plaintiff’s allegations.” (Id. at 23.)

14

2. Applicable law

15

The Ninth Circuit has established a two-part test for evaluating a claimant’s

16

allegations regarding subjective symptoms. See Trevizo v. Berryhill, 871 F.3d 664, 678

17

(9th Cir. 2017); see also Social Security Ruling (“SSR”) 16-3p, 2016 WL 1119029

18

(Mar. 16, 2016).11 First, the ALJ determines whether there is “objective medical

19

evidence of an underlying impairment that could reasonably be expected to produce the

20

pain or other symptoms alleged.” Trevizo, 871 F.3d at 678 (quoting Garrison v. Colvin,

21

759 F.3d 995, 1014–15 (9th Cir. 2014)). Second, if a claimant presented such evidence,

22

and there is no evidence of malingering, the ALJ may reject the claimant’s statements

23
24
25
26
27
28

“[A]ssessments of an individual’s testimony by an ALJ are designated to ‘evaluate the intensity and
persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable
impairment(s) that could reasonably be expected to produce those symptoms,’ and not to delve into
wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo, 871 F.3d at 678
n.5 (quoting SSR 16-3p, 2016 WL 1119029).
11

18
22cv1499-LR

1

about the severity of the claimant’s symptoms “only by offering specific, clear and

2

convincing reasons for doing so.” Id.

3

When evaluating subjective symptom testimony, “[g]eneral findings are

4

insufficient.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). “[A]n ALJ

5

does not provide specific, clear, and convincing reasons for rejecting a claimant’s

6

testimony by simply reciting the medical evidence in support of his or her residual

7

functional capacity determination.” Id. at 489. Instead, the ALJ must identify the

8

testimony regarding the claimant’s symptoms that the ALJ finds not credible, and explain

9

what evidence undermines the claimant’s testimony. See Lambert v. Saul, 980 F.3d

10

1266, 1277 (9th Cir. 2020) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d

11

1090, 1102 (9th Cir. 2014)); see also Burrell v. Colvin, 775 F.3d 1133, 1139 (9th Cir.

12

2014) (finding error where the ALJ “never connected the medical record” to the

13

claimant’s testimony, and did not make “a specific finding linking a lack of medical

14

records to [the claimant’s] testimony about the intensity” of her symptoms); Orteza v.

15

Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (providing that the ALJ’s reasons for

16

discounting a claimant’s testimony must be “sufficiently specific to permit the reviewing

17

court to conclude that the ALJ did not arbitrarily discount the claimant’s testimony”).

18

“Because symptoms sometimes suggest a greater severity of impairment than can

19

be shown by objective medical evidence alone,” the ALJ considers “all of the evidence

20

presented,” including information about the claimant’s prior work record, statements

21

about symptoms, evidence from medical sources, and observations by the Agency’s

22

employees and other individuals. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR

23

16-3p, 2016 WL 1119029. In addition, the ALJ may consider other factors, such as the

24

claimant’s daily activities; the location, duration, frequency, and intensity of pain or other

25

symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side

26

effects of any medication taken to alleviate pain; treatment; and any other measures used

27

to relieve pain. See 20 C.F.R. §§ 404.1529(c)(3), 419.929(c)(3); SSR 16-3p, 2016 WL

28

1119029.
19
22cv1499-LR

1

3. Analysis

2

The parties do not dispute the ALJ’s finding that Plaintiff has the following severe

3

impairments: “residual of lumbar surgery with chronic pain syndrome of the sacral area

4

with a history of cysts.” (AR at 674; see also J. Mot.) The parties also do not contest the

5

ALJ’s determination that Plaintiff’s “medically determinable impairments could

6

reasonably be expected to cause some of the alleged symptoms.” (AR at 678; see also J.

7

Mot.) Accordingly, the first prong of the ALJ’s inquiry regarding Plaintiff’s subjective

8

symptoms is satisfied.

9

Additionally, neither party alleges that the ALJ found that Plaintiff was

10

malingering. (See J. Mot.) The Court therefore is required to determine whether the ALJ

11

identified which of Plaintiff’s subjective allegations of impairment he discounted, and

12

whether the ALJ provided specific, clear, and convincing reasons for doing so. See

13

Brown-Hunter, 806 F.3d at 489; Lambert, 980 F.3d at 1277.

14
15

In his written opinion, the ALJ noted that Plaintiff alleged disability due to
“multiple physical and mental impairments,” (AR at 678), and that Plaintiff:

16

allege[d] that she had not worked since 2007, due to residuals of cyst
removal surgery and leg and feet pain . . . . She denied problems in the
lumbar area; however, she alleged severe buttock and leg pain and that she
could not sit (Exh. 5E, at pg. 1). The claimant alleged that she laid in bed
most of the day. She used a cane for ambulation. Her daughter helped her
with many tasks. As for her activities of daily living, the claimant was able
to vacuum, do her own laundry, and shower herself.

17
18
19
20
21
22
23

(Id.)
The ALJ then discounted Plaintiff’s statements regarding her impairments for the

24

following reasons: (1) Plaintiff’s pain was well managed with medication and other

25

treatments; (2) Plaintiff’s daily activities were inconsistent with her allegations regarding

26

the intensity, persistence, and limiting effects of her symptoms; and (3) Plaintiff’s

27
28
20
22cv1499-LR

1

subjective pain testimony was not supported by the objective medical evidence in the

2

record.12 (Id. at 678–81.)

3

The Court can only assess the reasoning the ALJ provided in his decision. See

4

Revels, 874 F.3d at 654 (stating that a court may consider “only the reasons provided by

5

the ALJ in the disability determination and may not affirm the ALJ on a ground upon

6

which [he or she] did not rely”); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,

7

1225 (9th Cir. 2009) (“Long-standing principles of administrative law require us to

8

review the ALJ’s decision based on the reasoning and factual findings offered by the

9

ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have

10

been thinking.”). The Court will therefore examine the ALJ’s stated reasons for

11

discontinuing Plaintiff’s testimony.

12

///

13

///

14
15
12

16
17
18
19
20
21
22
23
24
25
26
27
28

Although not entirely clear from the ALJ’s written opinion, the ALJ may have also found that
Plaintiff’s treatment was conservative in nature. (See AR at 678–79.) The ALJ is required to identify
the testimony regarding the claimant’s symptoms that the ALJ finds not credible, and explain what
evidence undermines the claimant’s testimony, which the ALJ did not do here. See Lambert, 980 F.3d
at 1277. Nevertheless, to the extent the ALJ discounted Plaintiff’s subjective symptom testimony
because he concluded that Plaintiff’s treatment was conservative, this is not a clear and convincing
reason to discount Plaintiff’s subjective symptom testimony. As discussed in detail in this Order,
Plaintiff was treated with numerous epidural steroid injections and narcotic pain medications. “Many
courts have previously found that strong narcotic pain medications and spinal epidural injections are not
considered to be ‘conservative’ treatment.” Beatriz B. v. Saul, Case No.: 3:19-cv-00785-AHG, 2020
WL 4035450, at *6 (S.D. Cal. July 16, 2020)) (citing Juan C. P. v. Saul, No. ED CV 19-427-PLA, 2019
WL 6039944, at *8 (C.D. Cal. Nov. 14, 2019)); see also Christie v. Astrue, No. CV 13–08307–VBK,
2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (refusing to characterize treatment with narcotics,
steroid injections, trigger point injections, and epidural injections as “conservative”); Yang v. Barnhart,
No. ED CV 04-958-PJW, 2006 WL 3694857, at *4 (C.D. Cal. Dec. 12, 2006) (finding that the ALJ’s
determination that claimant received “conservative” treatment was not supported by substantial
evidence, where the claimant underwent physical therapy, received epidural injections, and was treated
with several pain medications). Notably, after her initial surgery, Plaintiff did not undergo further
surgeries to remove Tarlov cysts because her physicians did not project that surgical intervention would
be successful, and even opined that it may worsen Plaintiff’s condition. (See AR at 743.) As such,
Plaintiff’s treatments were not “conservative,” and this reason is not a clear and convincing reason
supported by substantial evidence in the record to discount Plaintiff’s subjective symptom testimony.

21
22cv1499-LR

1
2

a. Management with medication and treatments
The ALJ discounted Plaintiff’s symptom testimony after concluding that Plaintiff’s

3

“pain has been generally well managed with medication and other treatments.” (AR at

4

678–79.) The ALJ stated that Plaintiff “reported doing well and having very little back

5

pain during several visits in 2012,” (id. (citing id. at 216, 220)), and cited Dr.

6

Samarasinghe’s appointment notes dated March 9, and October 17, 2012, (id. at 214–16;

7

see also id. at 218, 220–30). The ALJ also cited May 11, 2016, progress note stating that

8

Plaintiff’s low back pain resolved after her February 2016 cortisone injection, the relief

9

lasted for two months, the cortisone injection and methadone “worked great together,”

10

and that Plaintiff walked daily. (Id. at 679 (citing id. at 1154).) Additionally, the ALJ

11

cited Dr. Rosen’s July 26, 2016 appointment note that Plaintiff reported obtaining three-

12

to-four months of relief after an epidural steroid injection, “noted the aching in her legs

13

was significantly diminished” after the second lumbar epidural steroid injection, and that

14

Plaintiff “reported being able to walk more with improved endurance through the day, no

15

longer needing to nap or put up her feet, and with significantly reduced bilateral lower

16

extremity pain.” (Id. at 679 (citing id. at 1233).)

17

In assessing a claimant’s subjective symptoms, an ALJ may consider the “type,

18

dosage, effectiveness, and side effects of any medication taken to alleviate pain,” and

19

“treatment, other than medication” the claimant receives to relieve “pain or other

20

symptoms.” See 20 C.F.R. §§ 404.1529(c)(3)(iv)–(v), 416.929(c)(3)(iv)–(v). An ALJ

21

cannot “reject a claimant’s testimony merely because symptoms wax and wane in the

22

course of treatment” because “[c]ycles of improvement and debilitating symptoms are a

23

common occurrence.” Garrison, 759 F.3d at 1017; see also Morales v. Berryhill, 239 F.

24

Supp. 3d 1211, 1216 (E.D. Cal. 2017) (noting that some improvement “with treatment is

25

to be expected”). Further, “[a]n ALJ cannot simply pick out a few isolated instances of

26

improvement over a period of months or years but must interpret reports of improvement

27

. . . with an understanding of the patient’s overall well-being and the nature of her

28

symptoms.” Attmore, 827 F.3d at 877 (internal quotation marks omitted) (quoting
22
22cv1499-LR

1

Garrison, 759 F.3d at 1017); see also Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir.

2

2014) (“observations [of improvement] must be ‘read in context of the overall diagnostic

3

picture’ the provider draws”).

4

The ALJ’s citation of appointment notes from two out of thirteen appointments

5

Plaintiff had with Dr. Samarasinghe to demonstrate a trend of improvement in Plaintiff’s

6

symptoms mischaracterized the nature of Plaintiff’s symptoms. For example, on

7

February 15, 2013, merely four months after the October 17, 2012 progress note that the

8

ALJ cited to demonstrate Plaintiff’s purported improvement, Dr. Samarasinghe wrote in

9

his progress notes that Plaintiff once again reported left buttock pain and difficulty

10

sitting. (AR at 214, 304.) Likewise, with respect to Dr. Rosen’s findings the ALJ cited,

11

pain relief for two months after a cortisone injection does not indicate a “well managed”

12

symptom, because, according to Dr. Rosen’s notes, a cortisone injection may only be

13

administered every five or six months before losing its effectiveness. (See id. at 1153

14

(containing Dr. Rosen’s May 13, 2016 note that after Plaintiff’s request, he agreed to

15

increase the frequency of injections from every six months to every five months, and that

16

he cautioned Plaintiff that “the injections may lose effectiveness if done too often.”).)

17

Notably, three months after the injection, Plaintiff reported to Dr. Rosen a pain level of

18

8–10/10, and the same symptoms she had before the injection, including left leg

19

hamstring pain and pain when sitting. (Id. at 1154.)

20

Although the ALJ cited several medical records showing some improvement with

21

treatment and medications, most of those records were made after Plaintiff received

22

epidural steroid injections, and the ALJ ignored numerous records demonstrating that

23

those improvements were temporary. Further, the ALJ did not discuss or even

24

acknowledge X-ray and MRI findings in Plaintiff’s medical records, which showed

25

degeneration and abnormalities in her sacral area. (See id. at 447–50; 1048–51.)

26

The record in this case shows that after Plaintiff had a surgery to remove Tarlov

27

cyst in her lumbar spine on December 12, 2006, she reported significant amounts of pain

28

(apparently due to scarring), burning, and numbness, which increased overtime,
23
22cv1499-LR

1

especially when sitting, and was diagnosed with chronic pain syndrome in March 2012.

2

(See, e.g., id. at 220, 279, 323.) Despite receiving numerous epidural steroid injections,

3

undergoing physical therapy, and taking narcotic pain medications, such as OxyContin,

4

and Tramadol, Plaintiff reported significant levels of pain ranging between 7–8 out of 10

5

to the same physicians, both before and after the appointments that the ALJ cited in his

6

opinion. (See, e.g., id. at 742–43, 1254, 1436–37, 1499, 1633, 1788.) Further, despite

7

the medications and treatments, Plaintiff reported spending most of her time in bed

8

because of pain, and continued to request additional treatments, indicating an on-going

9

problem with managing her pain symptoms. (See id. at 1633, 1788); see also Beatriz B.

10

v. Saul, Case No.: 3:19-cv-00785-AHG, 2020 WL 4035450, at *6 (S.D. Cal. July 16,

11

2020) (concluding that plaintiff’s medications and trigger point injections were the types

12

of treatments that “indicate[d] a significant pain issue”). Notably, Plaintiff testified

13

during her last administrative hearing that her doctors were skeptical about the

14

effectiveness of additional invasive and non-invasive treatments, and “[s]everal doctors

15

have said that they’re afraid they’ll make me worse, so they’re not going to touch me.”

16

(See id. at 743.)

17

The ALJ’s selective citations did not address the overall dynamic of Plaintiff’s

18

symptoms, and disregarded numerous medical records documenting that Plaintiff’s

19

improvement with medication and treatment was temporary. Accordingly, the ALJ’s

20

finding of improvement with treatment was not supported by substantial evidence in the

21

record. See Costa v. Berryhill, 700 F. App’x 651, 653 (9th Cir. 2017) (concluding that

22

although several records contained plaintiff’s reports that her migraines subsided after

23

taking medication, the record as a whole showed that plaintiff’s migraines were not well

24

controlled because she consistently sought treatment for her severe migraines); see also

25

Parker v. Saul, Case No.: 20cv2530-BLM, 2022 WL 4798162, at *7–8 (S.D. Cal.

26

Sept. 30, 2022) (concluding that substantial evidence did not support the ALJ’s decision

27

to discount plaintiff’s subjective symptom testimony due to improvement with

28

medication and treatment, where plaintiff’s symptoms temporarily improved with pain
24
22cv1499-LR

1

medication, but the symptoms subsequently returned); Dennis R. v. Comm’r of Soc. Sec.,

2

Case No. C20-5836 RAJ, 2021 WL 2328374, at *2 (W.D. Wash. June 8, 2021) (holding

3

that “[i]mprovement with treatment was not a clear and convincing reason to discount

4

[p]laintiff’s testimony,” where “records note[d] some improvement, but none indicate[d]

5

[p]laintiff’s symptoms were fully relieved or otherwise contradict[ed] [p]laintiff’s

6

testimony”); Gomez v. Berryhill, Case No.: 17-cv-01582-MMA (RNB), 2018 WL

7

3019935, at *11 (S.D. Cal. June 18, 2018) (finding that the ALJ erred by discounting

8

plaintiff’s subjective symptom testimony where, among other things, plaintiff reported

9

“much success” with cortisone injections, but also stated that the injections were “helpful

10

for short term” and not “for long term,” and plaintiff’s pain level returned to 7–8 out of

11

10). The Court therefore finds that improvement with medication and treatments is not a

12

clear and convincing reason to discount Plaintiff’s subjective symptom testimony.

13
14

b. Activities of daily living
The ALJ also discounted Plaintiff’s testimony after concluding that Plaintiff’s

15

activities of daily living were not consistent with her subjective symptom allegations.

16

(See AR at 679.) In support, the ALJ cited Plaintiff’s reports of doing house chores and

17

walking the dog five times per day. (Id.) The ALJ also noted Plaintiff’s ability to

18

vacuum, do laundry, and shower. (Id. at 678.)

19

An ALJ may properly consider the claimant’s daily activities in evaluating

20

testimony regarding subjective symptoms. See 20 C.F.R. §§ 404.1529(c)(3)(i),

21

416.929(c)(3)(i). There are “two grounds for using daily activities to form the basis of an

22

adverse credibility determination”: an ALJ may find that daily activities either

23

(1) contradict the claimant’s other testimony, or (2) meet the threshold for transferable

24

work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see also Steele v.

25

Berryhill, Case No.: 3:17-cv-01923-LAB (RNB), 2018 WL 2718033, at *3 (S.D. Cal.

26

June 6, 2018) (same).

27
28

As an initial matter, although the ALJ cited certain daily activities that Plaintiff
could perform, such as doing house chores and walking a dog five times per day, the ALJ
25
22cv1499-LR

1

did not discuss other evidence showing the difficulties Plaintiff experienced on a daily

2

basis. This evidence included testimony that Plaintiff was not able to sit for a prolonged

3

period of time due to sacral pain; that she was limited to short walks because of pain and

4

because she needed to take breaks to rest, take pain medication, and apply ice packs; and

5

that Plaintiff’s caregiver frequently helped her with house chores. (See AR at 741–46.)

6

“The Social Security Act does not require that claimants be utterly incapacitated to be

7

eligible for benefits, and many home activities may not be easily transferable to a work

8

environment where it might be impossible to rest periodically or take medication.”

9

Smolen v. Chater, 80 F.3d 1273, 1284 n.7 (9th Cir. 1996); see also Diedrich v. Berryhill,

10

874 F.3d 634, 642–43 (9th Cir. 2017) (“House chores, cooking simple meals, self-

11

grooming, paying bills, writing checks, and caring for a cat in one’s own home, as well as

12

occasional shopping outside the home, are not similar to typical work responsibilities”;

13

concluding that the claimant’s ability to perform such activities was not a clear and

14

convincing reason to find the claimant less than fully credible); Vertigan v. Halter, 260

15

F.3d 1044, 1050 (9th Cir. 2001) (citation omitted) (“the mere fact that a plaintiff has

16

carried on certain daily activities, such as grocery shopping, driving a car, or limited

17

walking for exercise, does not in any way detract from her credibility as to her overall

18

disability. One does not need to be ‘utterly incapacitated’ in order to be disabled.”).

19

Plaintiff’s ability to do certain household chores and walk her dog are the type of

20

activities the Ninth Circuit has consistently identified as the types of activities insufficient

21

to discount subjective symptom testimony, and Plaintiff’s ability to participate in some

22

daily activities does not contradict the evidence of serious problems that she encountered

23

in her daily life during the relevant timeframe. See id.; see also Allen R. v. Saul, Case

24

No. 6:20-cv-00790-SB, 2021 WL 4468922, at *4 (D.Or. Sept. 29, 2021) (citing Meuser

25

v. Colvin, 838 F.3d 905, 913 (7th Cir. 2016)) (explaining that an ALJ cannot “disregard a

26

claimant’s limitations in performing” his activities, where the ALJ discounted the

27

claimant’s testimony based on, among other things, the claimant’s ability to complete

28
26
22cv1499-LR

1

chores, but the “ALJ ignored evidence” that the claimant received help from family

2

members and rarely left the house).

3

To the extent the ALJ determined that Plaintiff’s daily activities contradicted her

4

other testimony, the ALJ has not identified any material discrepancies in Plaintiff’s

5

statements regarding her symptoms and limitations. See Orn, 495 F.3d at 639. Notably,

6

the Court’s review of Plaintiff’s testimony during her three administrative hearings in this

7

case indicates that Plaintiff’s testimony has been consistent throughout the hearings and

8

has demonstrated a steady decline in her abilities to engage in daily activities. (See AR at

9

741–46; see also id. at 640, 642–48, 650, 653–55 (containing Plaintiff’s testimony during

10

her first administrative hearing on April 7, 2016, that she lived in a small apartment, was

11

able to do laundry, sweep and vacuum, but could not mop because she got too tired; she

12

could sit for ten-to-fifteen minutes and walk her dog for six-to-ten minutes up to six times

13

a day, noting that such walks helped her feet from getting numb; that she had difficulties

14

with showering because her feet were “wobbly”; she grocery shopped every other week;

15

she was only able to drive when she didn’t take her pain medication; and because of

16

chronic pain, she was in bed for about sixteen-to-seventeen hours per day); id. at 713,

17

720–21 (containing Plaintiff’s testimony during her second administrative hearing on

18

July 3, 2019, that she could sit for fifteen minutes, walk her dogs, and do one errand a

19

day; that because of her pain, she had to be in bed for two-to-three hours between those

20

activities; and that she had to lay down eighteen-to-twenty hours per day).

21

Further, Plaintiff’s daily activities were sporadic and required frequent rest breaks,

22

and she did not engage in those activities during a substantial portion of her day.

23

Because Plaintiff was not performing her daily activities with the consistency and

24

persistence required by a typical work environment, such activities do not meet the

25

threshold for transferrable work skills. See Orn, 495 F.3d at 639; see also Ghanim, 763

26

F.3d at 1165 (internal quotation marks omitted) (concluding that the ALJ improperly

27

discounted claimant’s symptom testimony because of the claimant’s ability to engage in

28

certain daily activities, where “there [wa]s no indication . . . that the limited activities [the
27
22cv1499-LR

1

claimant] engaged in, often with the help of a friend, either comprised a ‘substantial’

2

portion of [the claimant’s] day, or were ‘transferrable’ to a work environment.”); Reddick

3

v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (concluding that ALJ’s finding that

4

claimant’s daily activities indicated the claimant’s ability to work was unsupported by the

5

record, where the claimant’s daily activities were “sporadic and punctuated with rest”);

6

Beatriz B., 2020 WL 4035450, at *7 (finding that plaintiff’s daily activities, which

7

included driving a car, shopping for groceries, preparing complete meals, walking dogs,

8

cleaning, and laundry, were not “comparable with working for sustained period of time,”

9

where the plaintiff testified that she had to take frequent breaks when performing such

10

tasks, and that she could not tolerate prolonged standing or sitting without taking a

11

break). The ALJ therefore erred in discounting Plaintiff’s subjective symptom testimony

12

based on Plaintiff’s daily activities.

13
14

c. Inconsistencies with medical evidence
The ALJ also discounted Plaintiff’s subjective symptom testimony, reasoning that

15

Plaintiff’s statements regarding her pain were inconsistent with objective medical

16

evidence. (AR at 679–81.) Even if this reason was supported by substantial evidence,

17

the ALJ’s other reasons for discounting Plaintiff’s subjective symptom testimony were

18

not supported by substantial evidence; and this reason alone is not sufficient to discredit

19

Plaintiff’s subjective testimony. See 20 C.F.R. § 416.929(c)(2) (providing that an ALJ

20

cannot reject subjective statements about pain solely because the medical evidence does

21

not corroborate the statements); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005)

22

(“[A]n ALJ may not reject a claimant’s subjective complaints based solely on a lack of

23

medical evidence to fully corroborate the alleged severity of pain.”); Light v. Social Sec.

24

Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“[A] finding that the claimant lacks

25

credibility cannot be premised wholly on a lack of medical support for the severity of his

26

pain.”); see also Matthew D. v. Kijakazi, Case No. 6:20-cv-1716-SI, 2022 WL 2802134,

27

at *7 (D. Or. July 18, 2022) (finding that the ALJ erred in rejecting plaintiff’s subjective

28

symptom testimony, where the ALJ’s only remaining reason for rejecting plaintiff’s
28
22cv1499-LR

1

testimony was that it was not fully corroborated by objective medical evidence in the

2

record); Daniel B. v. Comm’r, Soc. Sec. Amin., No. 3:19-cv-00033-HZ, 2020 WL

3

3605846, at *6 (D. Or. July 2, 2020) (finding that the ALJ’s stated reason to discount

4

plaintiff’s subjective symptom allegations on the ground that plaintiff’s medical record

5

“d[id] not contain objective findings that would support the extent of [plaintiff’s

6

subjective symptom] allegations” was insufficient, where other reasons cited by the ALJ

7

did not support the decision to discount plaintiff’s subjective symptom testimony).

8

d. Conclusion
Accordingly, although the ALJ provided three reasons for discounting Plaintiff’s

9
10

subjective symptom testimony, two of those reasons were not supported by substantial

11

evidence.13 The Court therefore finds that the ALJ did not provide clear and convincing

12

reasons, supported by substantial evidence in the record, for rejecting Plaintiff’s

13

subjective symptom testimony.

14

B.

The ALJ Improperly Evaluated Dr. Sial’s Opinion

15

1. Parties’ arguments

16

Plaintiff asserts that the ALJ did not provide specific and legitimate reasons to

17

reject the opinion of the consultative examiner, Dr. Sial. (See J. Mot. at 26–30, 34–35.)

18

Plaintiff states that Dr. Sial opined that Plaintiff can sit for two hours in an eight-hour

19

workday, stand and/or walk for up to two hours in an eight-hour workday, and must

20

alternate sitting and standing periodically. (Id. at 25–26 (citing AR at 307–08).) Plaintiff

21

contends that Dr. Sial’s opinion demonstrates that Plaintiff is not able to work an eight-

22

hour day on a sustained basis because she can sit at most two hours per day, and stand

23

and walk for at most two hours per day, for a “combined total of four hours.” (J. Mot. at

24

26.) Plaintiff also states that VEs testified during Plaintiff’s administrative hearings that

25
26
27
28

To the extent the ALJ discounted Plaintiff’s subjective symptom testimony because he concluded that
Plaintiff’s treatment was “conservative,” as discussed above, this reason was not a clear and convincing
reason. See supra n.12.
13

29
22cv1499-LR

1

a claimant with the RFC, as assessed by Dr. Sial, would not be able to work an eight-hour

2

workday. (Id. (citing AR at 660, 731, 741).) Plaintiff therefore argues that the ALJ

3

committed a reversible error by discounting Dr. Sial’s opinion. (See J. Mot. at 26–30.)
Defendant asserts that the ALJ properly rejected Dr. Sial’s opinion. (Id. at 30–34.)

4
5

Defendant contends that the ALJ sufficiently explained why he afforded little weight to

6

Dr. Sial’s opinion regarding Plaintiff’s sitting limitation. (Id. at 30–32.) Defendant also

7

argues that the ALJ’s assessment of Dr. Sial’s opinion is consistent with the regulations

8

and supported by substantial evidence. (Id. at 34.)

9

2. Applicable law

10

Under the regulations governing claims filed before March 27, 2017, such as the

11

claim in this case,14 “[o]pinions from treating physicians receive more weight than

12

opinions from examining physicians, and opinions from examining physicians receive

13

more weight than opinions from non-examining physicians.” Farlow v. Kijakazi, 53

14

F.4th 485, 488 (9th Cir. 2022) (citation omitted); see also Perez v. Saul, 855 F. App’x

15

365, 366 (9th Cir. 2021) (providing that an examining physician’s opinion must be given

16

greater weight than the opinion of a non-examining physician). “To reject [the]

17

uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and

18

convincing reasons that are supported by substantial evidence.” Ryan v. Comm’r of Soc.

19

Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Bayliss v. Barnhart, 427 F.3d 1211,

20

1216 (9th Cir. 2005)). “If a treating or examining doctor’s opinion is contradicted by

21

another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate

22

reasons that are supported by substantial evidence.” Id. “The opinion of a non-

23
24
25
26
27
28

The rule giving deference to a claimant’s treating and examining physicians does not apply to claims
filed on or after March 27, 2017. See 20 C.F.R. § 416.920c(a) (providing that under the new
regulations, the Commissioner “will not defer or give any specific evidentiary weight . . . to any medical
opinion(s) . . . including those from [the claimant’s] medical sources” for claims filed on or after
March 27, 2017). Instead, certain factors are to be considered in evaluating the record. See 20 C.F.R.
§ 416.920c(b)–(c). Plaintiff filed her application for disability insurance benefits before March 27,
2017, and the changes to the rule therefore do not apply in this case.
14

30
22cv1499-LR

1

examining physician cannot by itself constitute substantial evidence that justifies the

2

rejection of the opinion of either an examining physician or a treating physician; such an

3

opinion may serve as substantial evidence only when it is consistent with and supported

4

by other independent evidence in the record.” Maye v. Kijakazi, Case No.: 22CV1326-

5

BLM, 2023 WL 4364890, at *3 (S.D. Cal. July 5, 2023) (quoting Townsend v. Colvin,

6

No. SACV 13–402–JEM, 2013 WL 4501476, *6 (C.D. Cal. Aug. 22, 2013)).

7

3. Analysis

8

On February 5, 2014, Social Security Administration’s consultative medical

9

examiner, Dr. Sial, conducted an internal medicine examination of Plaintiff to address

10

Plaintiff’s complaints of “[l]eft buttock and sacral pain.” (AR at 303–09.) He assessed

11

the following limitations: “[s]itting (with normal breaks) can be done [for] two hours.

12

Outside of the normal break periods, [Plaintiff] must periodically alternate sitting and

13

standing to relieve pain/discomfort.” (Id. at 308.)

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The ALJ acknowledged Dr. Sial’s finding that Plaintiff can sit for two hours in an
eight-hour day and stated the following:
Dr. Sial’s opinion as to the limitation on sitting was afforded minimal
weight. First, he placed too much weight on subjective complaints of the
claimant including her history that she could only sit for two hours. Second,
his conclusions were inconsistent with his exam which showed that she
could move about the office without assistance; her arms and legs were both
within normal limits; she had a full range of motion of the neck without
tenderness; she had a full range of motion of the thoracic spine without
tenderness; negative straight leg raising test; five out of five strength in all
extremities; and normal sensation (Exh. 7F). Dr. Sial noted what he
perceived as an abnormal gait due to the claimant’s allegations of sacral pain
and left buttock pain that allegedly affected her gait (Exh. 7F, at pg. 5).
However, there was no objective basis for limiting the sitting to two-hours.
For instance, the claimant had negative straight leg raise results in both the
sitting and supine positions (Exh. 7F, at pg. 4). The conclusions of Dr. Sial
were also inconsistent with two closely contemporaneous exams on May 21,
2014, where there was a normal neurological and musculoskeletal
examination results with normal gait by Michelle Jiu, M.D. (Exh. 13F, at
pg. 30) and another normal neurological exam on May 28, 2014, by Eric
Macy, M.D. (Exh. 13F, at pg. 33). In addition, the undersigned agreed with
31
22cv1499-LR

Dr. Pong [sic] in which he found Dr. Sial’s opinions too restrictive in light
of the normal range of motion of all extremities and neck and back without
spasm, negative straight leg raise test results, five out of five strength
throughout, and normal sensation (Exh. 4A, at pg. 9).

1
2
3
4
5

(Id. at 680.)
Accordingly, the ALJ discounted Dr. Sial’s opinion that Plaintiff can sit (with

6
7

normal breaks) for up to two hours in an eight-hour workday. (See id.; see also id. at

8

308.) Dr. Pong, a state agency medical consultant, determined that Plaintiff can sit with

9

normal breaks for six hours in an eight-hour workday.15 (Id. at 61.) Because the opinion

10

of Plaintiff’s examining physician, Dr. Sial, with respect to Plaintiff’s ability to sit is

11

contradicted by the opinion of non-examining medical consultant, Dr. Pong, the ALJ was

12

required to provide specific and legitimate reasons supported by substantial evidence in

13

the record to discount Dr. Sial’s opinion. See Perez, 855 F. App’x at 366 (providing that

14

an examining physician’s opinion must be given greater weight than the opinion of a non-

15

examining physician, and even if the opinion of an examining physician is contradicted

16

by another physician, it “can only be rejected for specific and legitimate reasons that are

17

supported by substantial evidence in the record.”).

18

The ALJ assigned “minimal weight” to Dr. Sial’s opinion, reasoning that Dr. Sial

19

“placed too much weight” on Plaintiff’s subjective complaints that she could only sit for

20

two hours. (AR at 680.) If a physician’s opinion is based “to a large extent on an

21

applicant’s self-reports and not on clinical evidence,” and the ALJ finds the applicant not

22

credible, the ALJ may discount the opinion. Ghanim, 763 F.3d at 1162 (citation

23

omitted). “However, when an opinion is not more heavily based on a patient’s self-

24
25
26
27
28

15

The Court notes that on October 20, 2021, a different consultative examiner, Dr. Tran, opined that
Plaintiff could for sit six hours during an eight-hour workday. (AR at 2404.) The ALJ gave little weight
to Dr. Tran’s opinion, because his exam of Plaintiff “occurred long after the date last insured.” (Id. at
680.)

32
22cv1499-LR

1

reports than on clinical observations, there is no evidentiary basis for rejecting the

2

opinion.” Id.

3

As an initial matter, Dr. Sial specifically stated in his findings that Plaintiff “was

4

deemed a credible historian” and did not exaggerate her symptoms. (AR at 303.)

5

Further, before formulating his opinion, Dr. Sial reviewed Plaintiff’s medical records,

6

summarized “history of allegations” and “past medical history,” and conducted physical,

7

cervical spine, “thoracolumbar spine,” and neurological examinations of Plaintiff. (See

8

id. at 303–09.)

9

In a recent decision, a district court considered whether the ALJ properly evaluated

10

a consultative examiner’s opinion that plaintiff could not sit for more than six hours,

11

stand for more than four hours, walk for more than four hours, and needed a cane to

12

ambulate, where the ALJ discounted the consultative examiner’s opinion, in part, because

13

the examiner heavily relied on plaintiff’s subjective report of symptoms and limitations.

14

Kendall v. Comm’r of Soc. Sec. Admin., No. CV-21-00825-PHX-JJT, 2023 WL

15

2754003, at *4–5 (D. Ariz. Mar. 1, 2023). The court reasoned as follows:

16
17
18
19
20
21

While it is true [p]laintiff’s reporting of symptoms (i.e., pain) played a
significant role in [consultative examiner’s] assessments, it is not clear [the
consultative examiner] similarly relied on [p]laintiff’s reporting of his
limitations (e.g., walking, sitting, standing) in formulating his own. Further,
it would logically follow that because assessments of pain rely, at least in
part, on self-reporting, [the consultative examiner] basing his opinion, at
least in part, on [p]laintiff’s self-reporting of pain cannot be the sole reason
to reject such an opinion.

22

Id. The court concluded that the ALJ improperly discounted the consultative examiner’s

23

opinion because it was based not only on plaintiff’s self-reports, but also on the

24

examiner’s review of plaintiff’s medical records, and the examiner’s physical

25

examinations, tests, and diagnoses. Id.

26

Just as the consultative examiner in Kendall, who considered plaintiff’s medical

27

records, tests, diagnoses, and physical examinations, in addition to plaintiff’s self-reports,

28

in this case, Dr. Sial’s opinion was based on his extensive review of Plaintiff’s medical
33
22cv1499-LR

1

records, and Dr. Sial’s physical, cervical spine, “thoracolumbar spine,” and neurological

2

examinations of Plaintiff, as well as Plaintiff’s self-reports. Id.; (see also AR at 303–09).

3

As such, the record demonstrates that Dr. Sial’s opinion was based upon his examinations

4

of Plaintiff, and not merely on Plaintiff’s subjective complaints. Dr. Sial’s opinion

5

therefore is “not more heavily based on [Plaintiff’s] self-reports than on [Dr. Sial’s]

6

clinical observations.” See Ghanim, 763 F.3d at 1162 (“[W]hen an opinion is not more

7

heavily based on a patient’s self-reports than on clinical observations, there is no

8

evidentiary basis for rejecting the opinion.”). Accordingly, this is not a specific and

9

legitimate reason to discount Dr. Sial’s opinion. See id.; see also Gregory C. v. Comm’r,

10

Soc. Sec. Admin., 426 F. Supp. 3d 660, 675 (D. Or. 2019) (“[B]ecause the ALJ’s

11

credibility determination is in error, the fact that [plaintiff’s physician’s] limitations are

12

based to some extent on [p]laintiff’s self-reports is not a specific and legitimate reason for

13

rejecting [the physician’s] opinion.”); Allen R., 2021 WL 4468922, at *8 (finding that a

14

physician’s reliance on plaintiff’s self-reports was not a specific and legitimate reason to

15

reject the physician’s opinion, where the record reflected that the physician’s finding at

16

issue was based upon his physical examination results, and not only on plaintiff’s

17

subjective complaints).

18

The ALJ also found that Dr. Sial’s assessed limitation on Plaintiff’s ability to sit

19

was inconsistent with Dr. Sial’s examination findings, reasoning that “there was no

20

objective basis for limiting the sitting to two-hours.” (AR at 680.) The ALJ citated Dr.

21

Sial’s examination findings that Plaintiff was able to move around the office without

22

assistance, her arms and legs were within normal limits, she had a full range of motion of

23

the neck and thoracic spine without tenderness, negative straight leg raising test, 5/5

24

strength in all extremities, and normal sensation. (Id. (citing id. at 303–09).) As Plaintiff

25

correctly notes in her motion, a person’s limited ability to sit does not require an

26

“abnormal arm and leg examination; a full range of motion of the neck or thoracic spine

27

(especially since [Plaintiff] did not allege any neck or thoracic spine pain); nor strength or

28

sensation.” (See J. Mot. at 27–28.) Further, Plaintiff’s ability to move around Dr. Sial’s
34
22cv1499-LR

1

office without assistance does not bear on her ability to sit during a prolonged period of

2

time. Notably, Dr. Sial not only reviewed Plaintiff’s medical records and examined

3

Plaintiff; his examination also included “observation of [Plaintiff’s] movements in the

4

examination room and ability to get on and off the examination table.” (See AR at 303–

5

09). Additionally, Dr. Sial’s neurological examination revealed that Plaintiff

6

“ambulate[d] with an abnormal gait due to sacral pain.” (Id. at 307.) A careful review of

7

the record does not support a conclusion that Dr. Sial’s assessed limitation on Plaintiff’s

8

ability to sit was inconsistent with his examination findings; rather, contrary to the ALJ’s

9

conclusion, Dr. Sial’s examination findings substantiated his opinion. Accordingly, Dr.

10

Sial’s examination findings do not provide a specific and legitimate reason for

11

discrediting his opinion.

12

The ALJ also discounted Dr. Sial’s opinion by citing (1) Dr. Jiu’s May 21, 2014

13

examination notes, documenting normal neurological and musculoskeletal examination

14

findings with normal gait, (id. at 680 (citing id. at 471)), and (2) Dr. Macy’s May 28,

15

2014 examination notes, containing a normal neurological examination finding, (id.

16

(citing id. at 474)). As an initial matter, although both physicians examined Plaintiff,

17

neither physician addressed Plaintiff’s physical limitations resulting from her chronic

18

pain. (See id. at 470–76.) Further, the ALJ mischaracterized the nature of Dr. Jiu’s

19

appointment with Plaintiff, which was to “establish new patient” and “PCP bonding,” (id.

20

at 470), and focused on Plaintiff’s allergic rhinitis, (id. at 471–73), and not on conducting

21

neurological and musculoskeletal examination of Plaintiff. The ALJ also failed to

22

acknowledge or discuss Dr. Jiu’s extensive comments on Plaintiff’s history of chronic

23

pain. (See id. at 680; see also id. at 471.) Additionally, Dr. Jiu’s finding of “normal gait”

24

during a PCP bonding encounter does not contradict Dr. Sial’s specific restrictions on

25

Plaintiff’s ability to sit. (See id. at 308, 471.) Similarly, during his appointment, Dr.

26

Macy focused on Plaintiff’s “rhinitis” and “throat clearing,” and not on Plaintiff’s

27

physical limitations. (See id. at 474.) Therefore, the treatment notes the ALJ cited do not

28

provide specific and legitimate reasons for discounting Dr. Sial’s opinion because these
35
22cv1499-LR

1

cherry-picked findings do not reflect the nature of Plaintiff’s appointments with Drs. Jiu

2

and Macy, and Plaintiff’s diagnostic record as a whole. See Reddick, 157 F.3d at 723

3

(finding that the ALJ’s determination was not supported by substantial evidence, in part,

4

because “the ALJ developed his evidentiary basis by not fully accounting for the context

5

of materials or all parts of the testimony and reports”); see also Beatriz B., 2020 WL

6

4035450, at *7 (quoting Jarrett v. Colvin, NO. C15-5176-BHS-JPD, 2015 WL 9647627,

7

at *4 (W.D. Wash. Nov. 30, 2015)) (“An ALJ may not ‘cherry pick’ from the record to

8

support a conclusion, but must account for the context of the record as a whole. . . .

9

Impermissible cherry-picking is therefore an issue of evidentiary support: an ALJ may

10

not simply cite isolated pieces of evidence as support for a conclusion, without taking

11

into account the record as a whole.”); Fanlo v. Berryhill, Case No.: 17cv1617-LAB

12

(BLM), 2018 WL 1536732, at *10 (S.D. Cal. Mar. 28, 2018) (citation omitted) (“The

13

ALJ is not permitted to ‘cherry-pick’ only the records that support her position.”).

14

To the extent the ALJ relied on the findings of non-examining, non-treating agency

15

physician, Dr. Pong, who imposed less restrictive limitation on Plaintiff’s ability to sit,

16

“[t]he opinion of a nonexamining physician cannot by itself constitute substantial

17

evidence that justifies the rejection of the opinion of either an examining physician or a

18

treating physician.” Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (citation

19

omitted); 20 C.F.R. § 404.1527(c)(2) (stating that more weight is given “to the medical

20

opinion of a source who has examined [the claimant] than to the medical opinion of a

21

medical source who has not examined [the claimant]”); see also Kendall, 2023 WL

22

2754003, at *6 (citing Orn, 495 F.3d at 632) (finding that a state-agency medical

23

consultants’ opinion, standing alone, did not provide substantial evidence for the ALJ’s

24

decision to reject the opinions of plaintiff’s consultative examiner and primary care

25

provider). Further, as the ALJ acknowledged in his written opinion, “Dr. Pong ha[d] not

26

had access to [Plaintiff’s] medical records since 2014, which made the opinion limited in

27

value.” (AR at 680.) The ALJ also determined that Dr. Pong’s opinion “vastly

28

overestimated [Plaintiff’s] abilities.” (Id.) The ALJ, nevertheless, “agreed” with Dr.
36
22cv1499-LR

1

Pong’s opinion that Plaintiff can sit for six hours in an eight-hour day, and used Dr.

2

Pong’s opinion to discount Dr. Sial’s more restrictive opinion that Plaintiff can only sit

3

two hours during a workday. (Id. (citing id. at 61).)

4

Notably, Dr. Sial’s opinion was consistent with the opinion of Plaintiff’s treating

5

physician, Dr. Rosen, who opined that Plaintiff can sit for less than two hours in an eight-

6

hour workday. (Id. at 1085–87; see also id. at 1086–87 (containing Dr. Rosen’s opinion

7

that Plaintiff would need to take unscheduled breaks every two-to-four hours during an

8

eight-hour workday, rest for twenty-to-thirty minutes before returning to work, and that

9

she would likely be “absent from work as a result of [her] impairment or treatment” more

10

than four days per month).) Additionally, the ALJ also failed to acknowledge or discuss

11

the imaging evidence in the record, which showed abnormalities and degeneration in

12

Plaintiff’s sacral area. (See id. at 447–50, 1048–51.)

13

The ALJ did not explain why the opinion of Plaintiff’s examining physician, Dr.

14

Sial, which was consistent with the opinion of Plaintiff’s treating physician, Dr. Rosen,

15

was entitled to less weight than the opinion of non-examining, non-treating medical

16

consultant, Dr. Pong. The ALJ’s finding is especially troubling because Dr. Pong did not

17

have access to Plaintiff’s complete medical records, which, in the ALJ’s own words,

18

made the opinion “limited in value.” (Id. at 680.) Accordingly, the ALJ’s selective

19

medical record citation and conclusory finding does not set forth the requisite specific

20

and legitimate reasons that are supported by substantial evidence for discounting Dr.

21

Sial’s opinion. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)

22

(providing that the ALJ is required to set out a “detailed and thorough summary of the

23

facts and conflicting clinical evidence, stat[e] [his] interpretation thereof, and mak[e]

24

findings”); Farlow, 53 F.4th at 488 (providing that “opinions from examining physicians

25

receive more weight than opinions from non-examining physicians”).

26

Considering the record as a whole, and for the reasons stated above, the Court

27

finds that the ALJ did not provide specific and legitimate reasons supported by

28

substantial evidence for discounting Dr. Sial’s opinion that Plaintiff can sit (with normal
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breaks) for up to two hours in an eight-hour workday. The ALJ therefore failed to

2

properly evaluate Dr. Sial’s opinion.

3

C.

4

The ALJ’s errors were not harmless
An error is harmless if it is inconsequential to the ALJ’s ultimate nondisability

5

determination. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1007 (9th Cir.

6

2015) (finding that the ALJ’s error was harmless because it was “inconsequential to the

7

ultimate nondisability determination.”); Tommasetti, 533 F.3d at 1038 (internal quotation

8

marks and citation omitted) (“[H]armless error . . . exists when it is clear from the record

9

that the ALJ’s error was inconsequential to the ultimate nondisability determination.”).

10
11
12
13
14
15

During Plaintiff’s last administrative hearing on February 7, 2022, the ALJ posed
the following hypothetical to the VE:
It’s opined that this hypothetical claimant can lift and carry ten pounds
occasionally, less than ten pounds frequently. Can stand or walk for up to
two hours out of eight, sit for at least six. Should never climb ropes, ladders,
or scaffolds. Can occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl. She should avoid[] concentrated exposure to extreme
cold, vibration, unprotected heights and moving and dangerous machinery.

16
17

(AR at 747–48.) The VE opined that a hypothetical individual with such limitations

18

could return to past relevant work, but “not as [Plaintiff] always performed it, according

19

to her testimony.” (Id. at 748.) When posed with the same hypothetical, but with an

20

additional restriction to sitting for four hours in an eight-hour workday, the VE opined

21

that such an individual would not be able to perform Plaintiff’s past relevant work, and

22

that such individual’s RFC would be considered less than sedentary. (Id. at 748–49.)

23

Finally, when the VE was asked whether the individual from the first hypothetical was

24

limited to unskilled work because of pain and medication, the VE opined that such an

25

individual would not be able to perform Plaintiff’s past relevant work. (Id. at 749.)

26

Notably, during Plaintiff’s first administrative hearing on April 7, 2016, and the second

27

administrative hearing on July 3, 2019, different VEs testified that an individual with the

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same RFC as assessed by Dr. Sial would not be able to work an eight-hour workday and

2

there would not be any jobs available for such individual. (See id. at 660–61, 727–31.)16
The ALJ discounted Plaintiff’s testimony regarding her symptoms, as well as Dr.

3
4

Sial’s opinion that limited Plaintiff to sitting (with normal breaks) to two hours in an

5

eight-hour day. (See id. at 308.) The ALJ did not incorporate Plaintiff’s subjective

6
7
8
9
10
11
12
13
14
15
16

16

Specifically, during the first administrative hearing on April 7, 2016, the ALJ posed the following
hypothetical to the VE:
Q [The] hypothetical is based on Exhibit 7F in the file which is the CE
[consultative examiner’s] evaluation. . . . Th[e] individual can occasionally lift 20
pounds, frequently lift 10 pounds. This person can stand and walk for two hours in a
normal eight-hour workday with normal breaks. This person can sit two hours out of an
eight-hour day. Outside of the normal work periods, the [person] must periodically
alternate sitting and standing to relieve pain and discomfort; can occasionally climb
ramps, stairs, ladders, ropes and scaffolds; can occasionally stoop, kneel, crouch and
crawl. Based on that hypothetical, would this person be able to return to past work?
A No.
Q Any jobs?
A No.

17

(AR at 660 (emphases added).)

18

During Plaintiff’s second administrative hearing on July 3, 2019, the VE was posed the
following hypothetical:

19
20
21
22
23
24
25
26
27
28

Q So I’m just going to read directly from [Dr. Sial’s] opinion. The claimant can
lift and carry—and/or carry 20 pounds occasionally and 10 pounds frequently. Pushing
and/or pulling were not limited other than for lift and carry. Standing and/or walking
with normal breaks can be done for up to two hours in a normal eight-hour workday. . . .
[M]edically acquired handheld device is not required. Sitting can be done for two hours
with normal breaks. Outside of normal breaks, the claimant must periodically alternate
between standing and sitting to relieve pain and discomfort. With that—the way that that
opinion was just described, would the individual be employable?
....
[T]he standing and/or walking can be done for up to two hours and sitting can be
done for two hours, which my reading of it is less than an eight-hour workday.
A So if that were the hypothetical, then no, they would not be able to perform
past work.
(Id. at 730–31 (emphases added).)

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symptom testimony and Dr. Sial’s limitation on Plaintiff’s ability to sit in his RFC

2

determination. Specifically, the ALJ’s assessed RFC limited Plaintiff to sitting for at

3

least six hours in an eight-hour workday, (id. at 820), and did not include the additional

4

restriction assessed by Dr. Sial regarding Plaintiff’s ability to sit for up to two hours in an

5

eight-hour workday. The ALJ ultimately concluded that Plaintiff could perform her past

6

relevant work. Different VEs testified during Plaintiff’s three separate administrative

7

hearings in this case that an individual with the same RFC as assessed by Dr. Sial would

8

not be able to return to Plaintiff’s past relevant work and work during an eight-hour

9

workday. The ALJ therefore erred by discounting Dr. Sial’s opinion with respect to

10

Plaintiff’s sitting limitation and this error was not harmless. See Tommasetti, 533 F.3d at

11

1038 (internal quotation marks and citation omitted) (“[H]armless error . . . exists when it

12

is clear from the record that the ALJ’s error was inconsequential to the ultimate

13

nondisability determination”); Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007)

14

(providing that errors that do not affect the ultimate result are harmless); see also Gomez,

15

2018 WL 3019935, at *11 (finding that the ALJ erred by discounting plaintiff’s

16

subjective symptom testimony and the error was not harmless, where the ALJ “did not

17

accommodate th[e] subjective symptom testimony in [plaintiff’s] RFC determination”).

18

The Court therefore finds that reversal is warranted.

19

VII. REMEDY

20

Plaintiff moves the Court to reverse the Commissioner’s decision and award

21

benefits, or––in the alternative––remand the Commissioner’s decision for further

22

proceedings. (J. Mot. at 18–19, 35.) Defendant asks the Court to affirm the

23

Commissioner’s decision, or alternatively remand the case for further proceedings. (Id.

24

at 36.)

25

The reviewing court may enter a judgment “affirming, modifying, or reversing” the

26

Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand the

27

case to the Social Security Administration for further proceedings. Id.

28
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Having found that the ALJ’s decision must be reversed, the Court next needs to

2

determine whether a remand for further proceedings, or a remand for payment of

3

benefits, is appropriate. The decision whether to remand for further proceedings or for

4

immediate payment of benefits is within the discretion of the court. Id.; Treichler, 775

5

F.3d at 1099. A remand for an immediate award of benefits is appropriate only in rare

6

circumstances. See Brown-Hunter, 806 F.3d at 495. “[T]he district court should credit

7

evidence that was rejected during the administrative process and remand for an

8

immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for

9

rejecting the evidence; (2) there are no outstanding issues that must be resolved before a

10

determination of disability can be made; and (3) it is clear from the record that the ALJ

11

would be required to find the claimant disabled were such evidence credited.” Benecke

12

v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citing Harman v. Apfel, 211 F.3d 1172,

13

1178 (9th Cir. 2000)). Even when the credit-as-true standard is met, the court retains the

14

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

15

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

16

Security Act.” Ghanim, 763 F.3d at 1021.

17

Courts have acknowledged the “tremendous financial difficulties” that disabled

18

claimants have “while awaiting the outcome of their appeals and proceedings on

19

remand.” Benecke, 379 F.3d at 595 (citation omitted). In this case, Plaintiff filed her

20

application for benefits in February 2013, and has been waiting for the resolution of the

21

case for over ten years. (See AR at 126–27.) Two ALJs have since considered Plaintiff’s

22

application on three separate occasions. (Id. at 20–37; id. at 812–30; id. at 668–89.)

23

Based on the record before it, the Court finds that an award of benefits under

24

credit-as-true rule is justified. First, as discussed in detail in this Order, the ALJ failed to

25

provide legally sufficient reasons to reject Plaintiff’s subjective symptom testimony and

26

the opinion of Plaintiff’s consultative examiner, Dr. Sial. See Benecke, 379 F.3d at 593.

27
28

Second, the record has been fully developed, and includes over 2,430 pages of
medical records, diagnostic findings, opinions from Plaintiff’s treating and examining
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physicians, and state medical consultants, records of court proceedings, proceedings on

2

multiple remands, and transcripts from three hearings held by two ALJs. The transcripts

3

include Plaintiff’s extensive testimony, as well as testimony by three different VEs who

4

all opined that the limitations assessed by Dr. Sial would preclude work entirely. Further,

5

when Plaintiff’s subjective symptom testimony and Dr. Sial’s opinion are given

6

appropriate weight, the testimony from the multiple VEs consistently confirms that

7

Plaintiff cannot perform her past relevant work. Crediting the rejected evidence, the ALJ

8

should have formulated a correct RFC and concluded at step four of his sequential

9

evaluation process that Plaintiff cannot perform her past relevant work.

10

The Court then needs to determine whether it should remand for further

11

administrative proceedings as to step five, where the Commissioner bears the burden of

12

proving that Plaintiff can perform other work that exists in significant numbers in the

13

national economy, considering Plaintiff’s RFC, age, education, and work experience. See

14

20 C.F.R. § 404.1560(c)(1)–(2); 20 C.F.R. § 404.1520(g)(1). This issue, however, has

15

already been addressed because the record contains VE’s testimony that a hypothetical

16

person with limitations on sitting, as well as standing and walking, as assessed by Dr.

17

Sial, would not be able to perform other work in the national economy. (See AR at 660.)

18

Accordingly, the record is fully developed, and there is no need to remand for further

19

administrative proceedings as to step five. See Benecke, 379 F.3d at 593 (“[W]here the

20

record has been developed fully and further administrative proceedings would serve no

21

useful purpose, the district court should remand for an immediate award of benefits.”);

22

Beatriz B., 2020 WL 4035450, at *9 (reversing the Commissioner’s denial of disability

23

insurance benefits and remanding to the ALJ for the calculation and award of benefits,

24

where the court concluded that the ALJ erred by rejecting the opinions of plaintiff’s

25

treating physician, and where plaintiff’s testimony, the discounted opinion of plaintiff’s

26

treating physician, and VE testimony established that plaintiff could not perform her past

27

relevant work, as well as other work in the national economy; concluding that the record

28

was fully developed, and that there was no need to remand for further administrative
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1

proceedings as to step five). As such, there are no outstanding issues that require further

2

proceedings. See Benecke, 379 F.3d at 593; see also Rose v. Berryhill, 256 F. Supp. 3d

3

1079, 1091 (C.D. Cal. 2017) (finding record complete where it included hundreds of

4

pages of medical records, several medical opinions, and transcripts from two hearings

5

including testimony from plaintiff, two doctors, and two VEs).

6
7
8
9

Third, when the improperly discredited evidence is credited as true, the ALJ would
be compelled to find Plaintiff disabled on remand. See Benecke, 379 F.3d at 593.
Accordingly, the evidence provided by Dr. Sial’s assessed limitations and
Plaintiff’s subjective symptom testimony is credited as true. For the reasons stated

10

above, and because the record as a whole does not create “serious doubt” as to whether

11

Plaintiff is disabled, the Court exercises its discretion to remand this case for an award of

12

benefits. See Ghanim, 763 F.3d at 1021; see also Perez, 855 F. App’x. at 370 (reversing

13

the district court’s judgment affirming the denial of benefits with instructions to remand

14

to the Commissioner of Social Security for the calculation and award of benefits, where

15

the ALJ committed a reversible error by discounting the claimant’s symptom testimony,

16

and the opinions of his treating and examining physicians, and where the evidence in the

17

record included medical history describing the claimant’s multiple treatments and

18

procedures, notes from doctors’ appointments, emergency room visits, therapy, opinions

19

from treating, examining, and non-examining physicians, and extensive testimony from

20

the claimant; concluding that if the ALJ had credited the evidence, the ALJ would be

21

required to find that the claimant was disabled and there was “no useful purpose in

22

remanding for further proceedings”); Newton v. Saul, 839 F. App’x 178, 179 (9th Cir.

23

2021) (reversing the district court’s opinion affirming the denial of benefits and

24

remanding to the district court with instructions to remand to the ALJ for the calculation

25

and award of benefits, where the ALJ committed a reversible error by discounting the

26

claimant’s symptom testimony and the opinions of the claimant’s treating and examining

27

physicians; concluding that “the record is complete, no legally sufficient evidence casts

28

doubt on [c]laimant’s disability, and [c]laimant first sought benefits seven years ago”);
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Campbell v. Saul, 834 F. App’x 330, 332–33 (9th Cir. 2021) (reversing district court

2

opinion affirming the denial of benefits and remanding to the district court with

3

instructions to remand to the Commissioner of Social Security for an award of benefits,

4

where the claimant’s treating physician opined that the claimant would miss more than

5

four days of work per month and the VE had opined that no jobs existed for an individual

6

with the claimant’s limitations); Albert B. v. Kijakazi, Case No. 5:22-cv-00865-EJD,

7

2023 WL 6462856, at *7–8 (N.D. Cal. Sept. 29, 2023) (remanding for calculation and

8

award of benefits, where the case had been previously remanded for further

9

administrative proceedings; the ALJ failed to provide legally sufficient reasons for

10

rejecting the uniform medical evidence; the record was fully developed and included

11

medical records, court proceedings, and medical expert testimony; and the court

12

concluded that if the improperly discredited evidence were credited as true, the ALJ

13

would be compelled to find plaintiff disabled).

14

VIII. CONCLUSION

15

For the reasons stated above, the Court REVERSES the Commissioner’s decision.

16

The case is REMANDED to the Commissioner for the CALCULATION AND

17

AWARD OF BENEFITS.

18
19

IT IS SO ORDERED.
Dated: February 6, 2024

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