Evans v. Kijakazi

Filing 15

ORDER Reversing Decision of Commissioner and Remanding for Further Administrative Proceedings. Signed by Magistrate Judge Michael S. Berg on 9/24/2024.(CC:SSA)(rxc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

LAKISHA E., 1

Case No.: 23cv674-MSB
Plaintiff,

12
13

v.

14

MARTIN O’MALLEY, Acting Commissioner
of Social Security,2

15

ORDER REVERSING DECISION OF
COMMISSIONER AND REMANDING FOR
FURTHER ADMINISTRATIVE
PROCEEDINGS

Defendant.

16
17
18

On April 14, 2023, Plaintiff Lakisha E. (“Plaintiff”) filed a civil Complaint against

19

Defendant Commissioner of Social Security (the “Commissioner”) seeking judicial review

20

of Defendant’s denial of disability benefits under the Social Security Act. (ECF No. 1.)

21

Based on all parties’ consent (see ECF Nos. 4 and 6), this case is before the undersigned

22
23
24
25
26
27
28

Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42
U.S.C. § 405(g)] will refer to any non-government parties by using only their first name and last initial.”
1

Martin O’Malley became the Commissioner of Social Security on December 20, 2023. See
Commissioner SSA, https://www.ssa.gov/agency/commissioner/ (last visited September 203,
2024). Accordingly, Martin O’Malley should be substituted for Kilolo Kijakazi as the defendant in this
lawsuit. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an
official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The
officer’s successor is automatically substituted as a party”).
2

1

23cv674-MSB

1

as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. §

2

636(c). Now pending before the Court is Plaintiff’s request to reverse the decision of

3

the Commissioner’s unfavorable decision and remand for the correction of legal errors.

4

(ECF No. 12, hereinafter “Plaintiff’s Brief”). The Court has carefully reviewed Plaintiff’s

5

Brief, the Commissioner’s responsive brief (“Commissioner’s Brief”) [ECF No. 14], the

6

Administrative Record (“AR”) [ECF No. 8], and the Complaint [ECF No. 1]. For the

7

reasons set forth below, the Court ORDERS that judgment be entered REVERSING the

8

Commissioner’s decision and REMANDING this matter for further administrative

9

proceedings consistent with this Order.

10

I.

PROCEDURAL HISTORY

11

On May 28, 2020, Plaintiff filed applications for supplemental security income

12

under Title XVI of the Social Security Act, alleging disabilities beginning on January 1,

13

2015, which was later amended to begin on the application date. (AR 37, 217-33.) The

14

Commissioner denied the application initially on July 8, 2020, and again upon

15

reconsideration on December 17, 2020. (AR 145-64.) Plaintiff requested a hearing

16

before an administrative law judge (“ALJ”) on February 3, 2021. (AR 165-67.) On

17

January 13, 2022, ALJ Eric V. Benham held an oral hearing during which Plaintiff was

18

represented by counsel. (AR 59-83.) In a written decision dated March 17, 2022, ALJ

19

Benham found that Plaintiff had not been under a disability since May 28, 2020, the

20

date the application was filed. (AR 34-58.)

21

On May 19, 2022, Plaintiff requested review of the ALJ’s decision. (AR 209-16.)

22

The Appeals Council denied Plaintiff’s request for review on February 23, 2023, making

23

ALJ Benham’s decision the final decision of the Commissioner. (AR 1-7); see also, 42

24

U.S.C. § 405(h). Plaintiff timely filed the instant civil action. (ECF No. 1.)

25
26
27

II.

SUMMARY OF THE ALJ’S FINDINGS

The ALJ followed the Commissioner’s five-step sequential evaluation process. See
20 C.F.R. § 416.920. At step one, the ALJ found Plaintiff had not engaged in substantial

28
2

23cv674-MSB

1

gainful activity since the application date, May 28, 2020. 3 (AR 40.) At step two, the ALJ

2

found that Plaintiff had the following severe impairments that significantly limit her

3

ability to perform basic work activities: multiple sclerosis (“MS”), degenerative disc

4

disease and lumbar spondylosis with radiculopathy, chronic pain syndrome, obesity,

5

borderline intellectual functioning, depression, and anxiety. (Id.) At step three, the ALJ

6

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

7

meets or medically equals the severity of one of the listed impairments in the

8

Commissioner’s Listing of Impairments. (AR 41.)

9

Because the ALJ found Plaintiff’s impairments did not amount to a listed

10

impairment, the ALJ then assessed Plaintiff’s residual functional capacity to perform

11

work. (AR 44.) The ALJ determined that Plaintiff is limited to “occasional stooping,

12

crouching, kneeling, crawling, or climbing stairs” but that “[s]he should do no climbing

13

of ladders or scaffolds” and that she is limited to “simple work” and “should avoid work

14

in environments that would expose her to concentrated cold, heat, or vibration.” (Id.)

15

Accordingly, the ALJ adduced that Plaintiff “has the residual functional capacity to

16

perform sedentary work as defined in 20 CFR 416.967(a) with standing and walking to

17

two to four hours out of an eight-hour day and lifting ten pounds occasionally or

18

frequently.” (Id.)

19

At step four, the ALJ found that Plaintiff did not have past relevant work. (AR 52.)

20

The ALJ adopted the finding contained in the final prior hearing decision. (Id.) At step

21

five, the ALJ found that, after considering the Plaintiff’s age, education, work

22

experience, and residual functional capacity, there are jobs that exist in significant

23

numbers in the national economy that the claimant can perform. (AR 53.) These jobs

24

include charge account clerk, table worker, and assembler. (Id.) As a result, the ALJ

25
26
27
28

Plaintiff initially alleged disability beginning on January 1, 2015, but during the administrative hearing,
she amended the onset date to May 28, 2020. (AR 37, 62.) Accordingly, the Court will use May 28,
2020, as the start of the alleged disability period.
3

3

23cv674-MSB

1

determined that Plaintiff could make an adjustment to other work and, therefore, is not

2

disabled. (Id.)

3
4

III.

DISPUTED ISSUE

Plaintiff briefed one issue as grounds for reversal: whether the ALJ provided

5

specific, clear, and convincing reasons for discounting Plaintiff’s subjective symptom

6

testimony.

7
8
9

IV.

STANDARD OF REVIEW

Section 405(g) of the Social Security Act allows unsuccessful applicants to seek
judicial review of the Commissioner’s final decision. See 42 U.S.C § 405(g). The scope of

10

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

11

supported by substantial evidence or contains a legal error. Luther v. Berryhill, 891 F.3d

12

872, 875 (9th Cir. 2018). “Substantial evidence” is a “‘term of art’ used throughout

13

administrative law to describe how courts are to review agency factfinding.” Biestek v.

14

Berryhill, 587 U.S. 97, 102 (2019) (quoting T-Mobile South, LLC v. Roswell, 574 U.S. 293,

15

301 (2015)). The Supreme Court has said substantial evidence means “more than a

16

mere scintilla,” but only “such relevant evidence as a reasonable mind might accept as

17

adequate to support a conclusion.” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S.

18

197, 229 (1938)).

19

Where the evidence is susceptible to more than one rational interpretation, the

20

ALJ’s decision must be upheld. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.

21

2008). This includes deferring to the ALJ’s credibility determinations and resolutions of

22

evidentiary conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Even if the

23

reviewing court finds that substantial evidence supports the ALJ’s conclusions, the court

24

must set aside the decision if the ALJ failed to apply the proper legal standards in

25

weighing the evidence and reaching his or her decision. See Batson v. Comm’r Soc. Sec.

26

Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). The reviewing court may enter a

27

“judgment affirming, modifying, or reversing” the Commissioner’s decision. 42 U.S.C. §

28

405(g). The reviewing court may also remand the case to the Social Security
4

23cv674-MSB

1

Administration for further proceedings. Id. However, the reviewing court “may not

2

reverse an ALJ’s decision on account of an error that is harmless.” Rounds v. Comm'r

3

Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (quoting Molina v. Astrue, 674 F.3d

4

1104, 1111 (9th Cir. 2012)).

5

V.

DISCUSSION

6

This Court finds that the ALJ did not properly consider Plaintiff’s subjective

7

symptom testimony. Plaintiff argues that the ALJ failed to articulate specific, clear, and

8

convincing reasons for rejecting her subjective symptom testimony. (ECF No. 12

9

(“Mot.”) at 7-8.) First, she contends that the ALJ did not cite to any specific medical

10

evidence supporting the conclusion that Plaintiff’s testimony about her symptoms were

11

not credible. (Id.) According to her, the ALJ did not offer “legally sufficient rationale”

12

and merely recited medical evidence without the required analysis of how it is

13

incompatible with Plaintiff’s testimony. (Id. at 9.) She contends that the ALJ’s

14

discussion of the objective medical evidence, alone, is not sufficient to reject her

15

testimony. (Id.) Plaintiff also argues that the ALJ incorrectly described her treatment as

16

conservative, which appeared to undermine her testimony. (Id. at 12.) Finally, Plaintiff

17

argues that the ALJ erroneously isolated and mischaracterized her daily activities to

18

reject her symptom testimony. (Id. at 14.)

19

The Commissioner argues that substantial evidence supports the ALJ’s decision to

20

discount Plaintiff’s subjective symptom testimony. (ECF No. 14 (“Opp’n”) at 2.)

21

According to the Commissioner, the ALJ rejected Plaintiff’s testimony for several

22

legitimate reasons that Plaintiff does not challenge. (Id.) The Commissioner argues that

23

the ALJ rejected Plaintiff’s testimony because (1) the psychologist’s findings of her self-

24

reports were unreliable (id. at 4); (2) her symptoms improved (id.); (3) she declined

25

recommended treatments (id. at 5); (4) her allegations regarding her attention span or

26

mental capacity were inconsistent with the medical record (id. at 6-7); and (5) her daily

27

activities were at odds with her alleged disabilities (id. at 7).

28

//
5

23cv674-MSB

1

A. Applicable Law

2

The ALJ must follow a two-step analysis to determine whether a claimant’s

3

allegations regarding subjective pain or symptoms are credible. See Johnson v. Kijakazi,

4

No. 19-17359, 2022 WL 1553259, at *1 (9th Cir. May 17, 2022); Vasquez v. Astrue, 572

5

F.3d 586, 591 (9th Cir. 2009); Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir.

6

2007).

7

First, the ALJ must determine whether there is objective medical evidence of an

8

underlying impairment that “could reasonably be expected to produce the pain or other

9

symptoms alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting

10

Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). The claimant is not required

11

to show that an underlying impairment could reasonably be expected to cause the

12

severity of the pain alleged, but only that it could have reasonably caused some degree

13

of pain. Vasquez, 572 F.3d at 591 (citing Lingenfelter, 504 F.3d at 1036).

14

Second, if the claimant meets the first step and there is no evidence of

15

malingering, then the ALJ may reject the claimant’s statements about the severity of his

16

symptoms “only by offering specific, clear and convincing reasons for doing so.”

17

Trevizo, 871 F.3d at 678 (quoting Garrison, 759 F.3d at 1014–15). “The clear and

18

convincing standard is the most demanding required in Social Security cases.” Revels v.

19

Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (quoting Garrison, 759 F.3d at 1014–15).

20

General findings are insufficient, and the ALJ must identify which specific pain and

21

symptom statements are being discounted and what evidence undermines those claims.

22

See Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (citing Treichler v. Comm’r Soc.

23

Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)); Burch v. Barnhart, 400 F.3d 676, 680

24

(9th Cir. 2005). An ALJ’s failure to identify specific statements and explain why they are

25

not credible constitutes reversible error because the reviewing court cannot determine

26

if the ALJ’s decision was supported by substantial evidence. See Brown-Hunter v. Colvin,

27

806 F.3d 487, 489 (9th Cir. 2015); see also SSR 16-3p.

28
6

23cv674-MSB

1

“[B]ecause symptoms, such as pain, are subjective and difficult to quantify,” the

2

ALJ will consider “all of the evidence presented,” including information about the

3

claimant’s prior work record, statements about their symptoms, evidence submitted by

4

their medical sources, and observations by the Agency’s employees and other persons.

5

20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p. In addition to objective medical

6

evidence, other factors that the ALJ will consider include Plaintiff’s daily activities; the

7

location, duration, frequency, and intensity of their pain or other symptoms;

8

precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of

9

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

10

relieve pain. See id. The ALJ may also consider inconsistencies between Plaintiff’s

11

statements regarding pain and the medical evidence. See 20 C.F.R. §§ 404.1529(c)(4),

12

416.929(c)(4); SSR 16-3p.

13
14

B. Plaintiff’s Testimony
During the administrative hearing, Plaintiff testified that she has not been able to

15

work because of her back and mental confusion. (AR 65.) Plaintiff’s MS was getting

16

progressively worse and seemed to be the source of her mental confusion. (AR 66.)

17

Furthermore, her MS was causing muscle weakness and fatigue. (Id.) Although the

18

medication she takes for her condition improves her symptoms, she still has relapses

19

where she must go to the hospital for a few days. (Id.) She testified that she has

20

relapses that occur about every six months but that she sometimes cannot go to the

21

hospital because she cannot get out of bed. (AR 67-68.)

22

Plaintiff also testified that, at her best, she can pick up about ten pounds and

23

stand on her feet for about ten minutes until her legs start to buckle and hurt. (AR 68-

24

69.) She also has trouble sitting because of her back, so she normally naps and lays

25

down about 30 minutes every day. (AR 69.) When her symptoms are bad, Plaintiff

26

spends most of the day in bed. (AR 70.) She also complained of incontinence issues.

27

(Id.) She says that her MS is getting worse because there has been an increase of

28

lesions in her brain and spine. (Id.)
7

23cv674-MSB

1

In addition to the physical symptoms, Plaintiff testified that the MS affects her

2

mental health. (AR 71-73.) The MS causes her to become confused and have memory

3

loss and slurred speech. (AR 71-72.) As a result of the MS, she also stated that she

4

suffers from depression. (AR 73.) Aside from the symptoms she faces due to her MS,

5

Plaintiff has carpal tunnel syndrome, which causes her hands to go numb and negatively

6

affects her ability to stand or sit for long periods of time. (Id.)

7

C. The ALJ’s Findings

8

In the ALJ’s decision, the ALJ summarized claimant’s testimony:

9

19

She cannot work because she has multiple sclerosis, and she experiences
weakness, fatigue, and mental confusion. She receives injections for multiple
sclerosis. She has a relapse in her multiple sclerosis about every six months, and
then she improves with treatment. She still has problems with pain in her arms,
hands, and legs even when she is not in a relapse. When she is not in a relapse,
she can pick up less than ten pounds. She can stand for ten minutes, and then her
legs buckle. She has trouble sitting due to pressure on her back. She lies down
for 30 minutes during the day, and on a bad day she lies down all day. She has
had multiple sclerosis since 2011, and it has progressed with more lesions since
then. When she is in a relapse, she has more cognitive problems. Her cognitive
problems include confusion, slurred speech, memory loss, and fatigue. She has
numbness in her hands, and she will drop a cup of coffee because her hands go
numb. She cannot do seated work because she has back pain when she sits for
too long, and she needs to lie down during the day. She uses a walker prescribed
by a physical therapist. When she has a flare of her multiple sclerosis, it lasts until
she gets treatment with steroids.

20

(AR 44-45.) After summarizing Plaintiff’s subjective testimony of her symptoms,

10
11
12
13
14
15
16
17
18

21

the ALJ found that Plaintiff’s limitations included her MS, degenerative disc disease and

22

lumbar spondylosis with radiculopathy, chronic pain syndrome, obesity, borderline

23

intellectual functioning, depression, and anxiety, but he also determined that those

24

limitations were “not disabling.” (AR 45.) Although Plaintiff’s “medically determinable

25

impairments could reasonably be expected to cause the alleged symptoms[,]” her

26

statements regarding “the intensity, persistence and limiting effects of these symptoms

27

are not entirely consistent with the medical evidence and other evidence . . . .” (AR 48.)

28
8

23cv674-MSB

1

The ALJ then found that “medical evidence and other evidence [do] not support

2

allegations of disabling symptoms and limitations.” (AR 48.) The ALJ cited the following

3

facts that contradict Plaintiff’s physical functioning allegations:

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

[T]he medical record shows only brief treatment with steroids for a multiple
sclerosis flare in May 2021 and does not otherwise describe flares of her multiple
sclerosis within the relevant period. The claimant walked into the room without
assistance of a walking device during her September 2020 consultative
examination with Dr. Pasek (Ex. C10F at 3), and during her December 2020
consultative physical examination, the claimant denied currently using an
assistive device for ambulation, her gait was normal, straight leg raising was
negative, and her motor strength, sensation, and reflexes were intact in her lower
extremities (Ex. C13F at 2-3.7). The claimant also had full strength at a level of
five out of five in her upper extremities with grossly normal range of motion and
negative Tinel’s and Phalen’s tests (Ex. C13F at 6). The claimant’s July 2021
physical therapy evaluation indicated that her examination findings in active
range of motion and manual muscle testing were within functional limits and her
sensation in her upper and lower extremities was intact (Ex. C15F at 654). In
addition, the claimant described going for walks without mention of an assistive
device for ambulation in her treatment records (Ex. C12F at 25, 130-131). Though
the claimant received gait training with a rollator assistive device, this was not
supported based upon objective physical examination findings (Ex. C15F at 654)
and appears to have been based upon subjective complaints. Therefore, the
undersigned finds that an assistive device is not medically necessary for
ambulation. The medical record also does not show that the claimant followed
up for additional physical therapy or for pain psychology for pain management as
recommended by her treatment providers.
(Id.) For Plaintiff’s mental functioning, the ALJ observed the following:
[T]he medical record shows that the claimant’s treatment for depression and
anxiety has been routine and conservative with medication management, and the
claimant reported some improvement with this treatment (Exs. C3F at 4, C12F at
25). During her consultative psychological examination, the claimant was
oriented to person, place, time, and purpose of the examination, her speech was
normal, her mood was euthymic and within normal limits, and her affect was
congruent to the situation (Ex. C10F at 5). The claimant was coherent during the
interview, and her thought processes appeared to be organized and unimpaired
(Ex. C10F at 5-6). The claimant’s memory was mildly impaired, but she appeared
to give “questionable effort” with “evidence of confabulation” (Ex. C10F at 6).
The claimant’s attention span did not appear to be impaired (Ex. C10F at 6). The
claimant was able to respond appropriately to imaginary situations requiring
9

23cv674-MSB

1

5

insight, judgment, and knowledge of norms (Ex. C10F at 6). Though the claimant
obtained a full-scale IQ score of 59 in intelligence testing, Dr. Pasek noted that
this score should be taken with caution due to the claimant’s “inconsistent and
questionable efforts” and instead concluded that based on observations and test
results, the claimant’s overall cognitive ability was likely borderline (Ex. C10F at 79). The medical claimant also did not require emergency room or inpatient
mental health treatment within the relevant period.

6

(AR 48-49.) The ALJ further observed that “the claimant’s activities of daily living

2
3
4

7

within the relevant period do not support allegations of disabling symptoms and

8

limitations.” (AR 49.)
The claimant reported playing games on her phone and playing with her dog in
June 2020 (Ex. C3F at 4). In July 2020, the claimant reported that she lives alone
in an apartment, she drives, she goes shopping in stores, she can pay bills, count
change, handle a savings account, and use a checkbook/money order, and her
hobbies and interests include watching television, reading, and phone games (Ex.
C4E at 4-8). The claimant also described playing video games, coloring, reading
scripture daily, and occasionally going for walks in August 2020 (Ex. C12F at 25),
and she reported that she was going for walks as well as playing video games and
doing more reading in September 2020 (Ex. C12F at 130-131). In addition, during
her September 2020 consultative examination, the claimant reported that [she]
was able to drive, she reported no difficulty completing household tasks, she
reported that she was able to pay bills, handle cash appropriately, and go out
alone, she reported no difficulty making decisions, and she reported that she
enjoyed watching television (Ex. C10F at 5).”

9
10
11
12
13
14
15
16
17
18

(Id.) The ALJ then went on to examine medical opinions and prior administrative

19
20

findings of several doctors without referencing Plaintiff’s subjective symptom testimony.

21

(AR 49-52.) After this analysis, the ALJ found that “evidence of changed circumstances

22

support[] a greater level of limitation in the claimant’s residual functional capacity.” (AR

23

52.)

24
25

D. Analysis
The two-step analysis determines whether the ALJ properly challenged Plaintiff’s

26

subjective symptom testimony. See Johnson, 2022 WL 1553259, at *1; Lingenfelter, 504

27

F.3d at 1035. Because the ALJ found that Plaintiff’s “medically determinable

28

impairments could reasonably be expected to cause the alleged symptoms” (AR 48),
10

23cv674-MSB

1

step one is satisfied. Trevizo, 871 F.3d at 678. Accordingly, the ALJ may reject Plaintiff’s

2

testimony about the severity of her symptoms only by providing “specific, clear, and

3

convincing” reasons. See Brown-Hunter, 806 F.3d at 488–89; see also Leza v. Kijakazi,

4

No. 21-16079, 2022 WL 819782, at *2 (9th. Cir. Mar. 17, 2022). The ALJ “must

5

specifically identify the testimony she or he finds not to be credible and must explain

6

what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208

7

(9th Cir. 2001). General findings are insufficient; the ALJ “must state which pain [or

8

other symptom] testimony is not credible and what evidence suggests the complaints

9

are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (citing Varney v.

10

Sec’y of Health & Human Servs., 846 F.2d 581, 584 (9th Cir. 1988)). Here, the ALJ failed

11

to meet the “demanding” clear and convincing standard. Revels, 874 F.3d at 655.

12

1. Identifying testimony and evidence

13

First, the Commissioner argues that Plaintiff “has not challenged the bulk of the

14

ALJ’s rationale” but fails to rebut Plaintiff’s main argument, which contends that the ALJ

15

failed to specify the testimony and reasons why Plaintiff’s testimony was discredited.

16

(Compare Opp’n at 2 with Mot. at 9-11.) This is a fatal flaw.

17

The ALJ needs to “specifically identify” the parts of Plaintiff’s testimony that were

18

not credible and explain why. Holohan, 246 F.3d at 1208; see also Brown-Hunter, 806

19

F.3d at 494 (“We cannot review whether the ALJ provided specific, clear, and convincing

20

reasons for rejecting [Plaintiff’s] testimony where, as here, the ALJ never identified

21

which testimony she found credible, and never explained which evidence contradicted

22

that testimony”).

23

As described above, the ALJ gave a summary of Plaintiff’s subjective symptom

24

testimony. Instead of specifically identifying the discredited testimony, the ALJ only

25

made a general conclusion that Plaintiff’s “statements concerning the intensity,

26

persistence and limiting effects of these symptoms are not entirely consistent with the

27

medical evidence and other evidence in the record for the reasons explained in this

28

decision.” (AR 44, 48). The Ninth Circuit has held that this boilerplate language does
11

23cv674-MSB

1

not rise to the level of “specific, clear, and convincing” reasons for discounting a

2

claimant’s subjective testimony. See, e.g., Treichler, 775 F.3d at 1103 (holding that a

3

boilerplate introductory sentence falls short of “meeting the ALJ’s responsibility” to

4

discuss the objective evidence); Vasquez, 572 F.3d at 592 (finding that the “vague

5

allegation that [Plaintiff’s claims] were ‘not consistent with the objective medical

6

evidence’” was inadequate to reject Plaintiff’s subjective testimony). Although the ALJ

7

does not have to perform a “line-by-line exegesis of the claimant’s testimony,” the ALJ

8

must offer more than a non-specific conclusion that the testimony was inconsistent with

9

medical treatment. Lambert, 980 F.3d at 1277. Here, the ALJ’s summary is more than a

10

generalized statement, but it is not specific enough for the Court to adequately analyze

11

and determine if substantial evidence supports his determination.

12

The ALJ’s failure to identify the testimony with specificity is an issue because the

13

ALJ also did not connect specific medical evidence to Plaintiff’s testimony; instead, he

14

provided a general summary of the medical record and stated his conclusion. (AR 48-

15

49.) “[S]imply reciting the medical evidence in support of [a] residual functional

16

capacity determination” does not meet the “clear and convincing” standard for rejecting

17

a claimant’s testimony. Brown-Hunter, 806 F.3d at 489; see also Lambert, 980 F.3d at

18

1278 (holding that a “relatively detailed overview of [the claimant’s] medical history”

19

was not the same as providing clear and convincing reasons for discounting the

20

claimant’s testimony). Although the ALJ separates the testimony between physical and

21

mental functioning, the ALJ only summarizes Plaintiff’s medical records and does not

22

make connections to specific portions of Plaintiff’s testimony. (AR 48-49.) While it may

23

be possible to draw inferences about what testimony is inconsistent, it is the duty of the

24

ALJ to identify those inconsistencies with specificity. Lambert, 980 F.3d at 1278 (citing

25

Brown-Hunter, 806 F.3d at 494) (“Although the inconsistencies identified by the district

26

court could be reasonable inferences drawn from the ALJ’s summary of the evidence,

27

the credibility determination is exclusively the ALJ’s to make,” and the reviewing court is

28

“constrained to review the reasons the ALJ asserts.”).
12

23cv674-MSB

1

Tellingly, Defendant’s opposition does not cite a specific portion of the ALJ’s

2

decision that explicitly explains what testimony was rejected and why. (Opp’n at 3-8.)

3

Instead, Defendant cites other parts of the AR to support the ALJ’s sparse explanation.

4

(Id.) Similar to the district court in Lambert, the Commissioner’s attempts to fill in the

5

ALJ’s reasoning by citing portions of the record is improper. Lambert, 980 F.3d at 1278.

6

For example, Defendant states that “the ALJ explained that the record did ‘not

7

show sustained treatment for carpal tunnel syndrome to indicate that this causes more

8

than minimal ongoing functional limitations.’” (Opp’n at 3-4 (citing AR 40).) However,

9

no actual analysis was done to compare Plaintiff’s “claims of disabling symptoms from

10

her carpal tunnel syndrome” because the ALJ simply does not acknowledge her

11

testimony at all. 4 (Id.; see also, AR 40.) The ALJ must explicitly make connections

12

between the testimony rejected and the medical evidence instead of leaving the Court

13

to make inferences. See Brown-Hunter, 806 F.3d at 494 (“providing a summary of

14

medical evidence . . . is not the same as providing clear and convincing reasons”). As

15

Plaintiff rightfully points out, this Court can only review the ALJ’s decision on its face and

16

cannot consider the Commissioner’s post hoc explanations for unexplained conclusions.

17

See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (finding that the district court

18

erred in affirming the ALJ’s credibility decision regarding the plaintiff’s subjective

19

symptom testimony “based on evidence that the ALJ did not discuss”); see also,

20

Lambert, 980 F.3d at 1278.

21

The Court finds that the ALJ failed to specifically identify testimony that he

22

believed was discredited and adequately explain how such testimony was inconsistent

23

with the record. Thus, the Court cannot assess whether the ALJ provided specific, clear,

24
25
26
27
28

Indeed, even if the ALJ made that connection, the lack of objective medical evidence is not enough to
discredit a claimant’s symptom testimony. See e.g., Bunnell v. Sullivan, 947 F.2d 345, 946-47 (9th Cir.
1991) (holding that “the adjudicator may not discredit a claimant's testimony of pain and deny
disability benefits solely because the degree of pain alleged by the claimant is not supported by
objective medical evidence”).
4

13

23cv674-MSB

1

and convincing reasons for rejecting Plaintiff’s testimony because, as illustrated below,

2

the ALJ’s lack of specificity forces the Court to make inferences. Brown-Hunter, 806 F.3d

3

at 494; see also Juanita R. v. Kijakazi, No. 21cv1296-MDD, 2022 WL 17345782, at *4 (S.D.

4

Cal. Nov. 30, 2022). This failure constitutes as a harmful error. See Brown-Hunter, 806

5

F.3d at 489.

6

2. Daily activities

7

Plaintiff argues that the ALJ mischaracterized and erroneously isolated her daily

8

activities. (Mot. at 14.) On the other hand, the Commissioner claims that the ALJ noted

9

Plaintiff’s daily activities were at odds with her subjective symptom testimony. (Opp’n

10

at 7.) Daily activities may be used to discredit an individual’s testimony about the

11

severity of her symptoms if: (1) the activities contradict the individual’s other testimony,

12

or (2) the activities meet the threshold for transferable work skills. Orn v. Astrue, 495 F.

13

3d 625, 639 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

14

The ALJ must make connections between the rejected testimony and

15

contradictory daily activities. See Lambert, 980 F.3d at 1278 (rejecting district court’s

16

attempt “to fill in the ALJ’s reasoning” by citing evidence of claimant’s daily activities).

17

Although the ALJ states that “claimant’s activities of daily living . . . do not support

18

allegations of disabling symptoms and limitations[,]” he does not explain what specific

19

testimony is undermined. (AR 49.) Thus, the Court agrees with Plaintiff that the issue of

20

Plaintiff’s daily activities is not properly before the Court. (Mot. at 13); See Brown-

21

Hunter, 806 F.3d 487, 492 (9th Cir. 2015) (the district court is “constrained to review the

22

reasons the ALJ asserts”) (quoting Connett, 340 F.3d at 874).

23

Again, the Commissioner attempts to fill in the ALJ’s reasoning by linking

24

Plaintiff’s daily activities and her testimony. (Opp’n at 7.) However, even if the ALJ had

25

articulated Plaintiff’s daily activities as a reason to reject specific parts of her testimony,

26

the Ninth Circuit has “repeatedly asserted that the mere fact that a plaintiff has carried

27

on certain daily activities . . . does not in any way detract from her credibility as to her

28

overall disability. One does not need to be ‘utterly incapacitated’ in order to be
14

23cv674-MSB

1

disabled.” Vertigan v. Halter, 260 F. 3d 1044, 1050 (9th Cir. 2001) (quoting Fair, 885

2

F.2d at 603.) Further, “disability claimants should not be penalized for attempting to

3

lead normal lives in the face of their limitations.” Reddick v. Chater, 157 F.3d 715, 722

4

(9th Cir. 1998) (citations omitted).

5

Here, the ALJ lists how Plaintiff is able to play video games and games on her

6

phone, play with her dog, live alone, drive, shop, pay bills, count change, handle a

7

savings account, use a checkbook, watch television, read, color, and go for walks. (AR

8

49.) First, even when comparing Plaintiff’s activities with the ALJ’s summary of

9

Plaintiff’s testimony, they do not appear to be contradictory. Plaintiff’s activities do not

10

contradict her testimony that she has an MS relapse every six months, that she can pick

11

up less than ten pounds, that her legs buckle when she stands for ten minutes, that she

12

has trouble sitting due to pressure on her back, that she may lay down all day when her

13

symptoms are bad, that she has numbness in her hands, or that she needs to lie down

14

for at least 30 minutes during the day. (AR 45.) These symptoms very well could

15

coincide with her daily activities. Nor do those activities necessarily contradict her

16

testimony that, while in relapse, she has “cognitive problems [that] include confusion,

17

slurred speech, memory loss, and fatigue.” (Id.)

18

Second, Plaintiff’s daily activities are not necessarily transferable to the work

19

setting. In Vertigan, the Court determined an ALJ erred by discrediting a claimant’s pain

20

allegations because she could “go grocery shopping with assistance, walk approximately

21

an hour in the malls, get together with her friends,” among other activities. Vertigan,

22

260 F.3d at 1050. Similarly, in this case Plaintiff’s daily activities are “not necessarily

23

transferable to the work setting” and are not dispositive of her ability to work eight

24

hours a day, five days a week. Id.

25

Accordingly, Plaintiff’s daily activities do not constitute substantial evidence that

26

support the ALJ’s decision to discredit her testimony.

27

//

28

//
15

23cv674-MSB

1

3. Plaintiff’s medical treatment

2

Plaintiff also argues that the ALJ erroneously characterized her treatment as

3

“conservative.” (Mot. at 12.) The ALJ references conservative treatment in lieu of

4

Plaintiff’s chronic myeloid leukemia in extended remission, carpal tunnel syndrome,

5

gastritis, overactive bladder, herpes, psychotic disorder, and polysubstance abuse

6

disorder, as well as treatment for her depression and anxiety. (AR 40, 43, 48, 50, 51.)

7

Plaintiff critiques the ALJ’s characterization of her treatment because she underwent

8

epidural injections and she takes hydrocodone for pain. However, the ALJ does not

9

reference conservative treatment as a reason to discount Plaintiff’s testimony regarding

10

her physical functioning. (See AR 48.) The ALJ only references conservative treatment

11

when discussing her mental functioning. (Id.) Accordingly, the ALJ does not describe

12

Plaintiff’s epidural injections or narcotic medication as “conservative.”

13

The Commissioner does not argue that Plaintiff’s “conservative treatment”

14

supported the ALJ’s credibility finding, but instead argues that treatments improved

15

Plaintiff’s symptoms. (Opp’n at 4-5.) The ALJ does not attribute improvement with

16

treatment as a reason to discount Plaintiff’s allegations related to her physical

17

functioning, only to her mental functioning. (AR 48.) But again, the ALJ only challenged

18

Plaintiff’s alleged “confusion, slurred speech, memory loss, and fatigue” while in

19

relapse, which seems unrelated to claimant’s treatment for depression and anxiety. (AR

20

45.)

21

The Commissioner also argues that Plaintiff “declined recommended treatments,

22

which further undermined her extreme claims.” (Opp’n at 5.) The ALJ points out that

23

Plaintiff did not “follow[] up for additional physical therapy or for pain psychology for

24

pain management as recommended by her treatment providers.” (AR 48.) While this

25

certainly may undermine the degree of pain Plaintiff alleged, the ALJ did not make clear

26

what degree of pain was discredited. (Id.) Additionally, the ALJ is required to consider

27

whether Plaintiff had an acceptable reason for failing to follow prescribed treatment,

28
16

23cv674-MSB

1

including whether her mental illness affected her ability to follow treatment. See Pate-

2

Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009). The ALJ did not do that here.

3

4. Plaintiff’s mental functioning

4

The Commissioner argues that the ALJ properly discredited Plaintiff’s allegations

5

regarding her mental limitations. (Opp’n 6-7.) However, the ALJ only acknowledges

6

Plaintiff’s testimony regarding her cognitive problems when she is relapsing from her

7

MS treatment, which “include confusion, slurred speech, memory loss, and fatigue.”

8

(AR 45.) This statement is not specific enough to determine whether the ALJ arbitrarily

9

discredited her symptom testimony. Bunnell, 947 F.3d at 345. The ALJ does not

10

mention any of Plaintiff’s testimony regarding her attention span but only concludes

11

that the medical records do not support that it is impaired. (See AR 42,43, 46, 49, 52.)

12

While the ALJ notes Dr. Pasek’s finding of confabulation and Plaintiff’s own recanting of

13

her hallucinations, the ALJ does not make his own finding that Plaintiff’s credibility was

14

questionable. (AR 42, 46.)

15

Furthermore, although the ALJ discusses seemingly contradictory medical

16

evidence by Dr. Pasek, there is no indication that the examination was done while

17

Plaintiff was in relapse. (See AR 895-902.) Thus, Dr. Pasek’s report does not conflict

18

with Plaintiff’s testimony that she suffers from confusion, slurred speech, memory loss,

19

and fatigue while she is in relapse. The absence of medical evidence is not enough to

20

discredit Plaintiff’s testimony. See e.g., Bunnell, 947 F.2d at 346–347. Accordingly, the

21

Commissioner does not provide clear and convincing evidence to discredit Plaintiff’s

22

testimony regarding her mental functioning.

23

VI.

CONCLUSION

24

The ALJ failed to specifically identify which of Plaintiff’s statements he found not

25

credible, or which medical evidence contradicted that testimony. Holohan, 246 F.3d at

26

1208. For this reason alone, the Court may reverse and remand. Nevertheless, the

27

Court also inferred and assessed the ALJ’s purported reasons for discounting Plaintiff’s

28

testimony and finds that they are also not “specific, clear, and convincing reasons.”
17

23cv674-MSB

1

Brown-Hunter, 806 F.3d at 494. The ALJ’s failure to provide clear and convincing

2

reasons for discounting Plaintiff’s pain testimony was not harmless because it

3

“precludes us from conducting a meaningful review.” Id. at 489; see also Michael Louis

4

W. v. Kijakazi, No. 20cv2277-LL (MSB), 2022 WL 2701988, at *10 (S.D. Cal. July 12, 2022)

5

(finding harmful error where the ALJ failed to specify which of Plaintiff’s statements

6

regarding pain and physical dysfunction he discredited). On remand, the ALJ should

7

reevaluate Plaintiff’s symptom testimony and specifically identify which portions of it, if

8

any, the ALJ finds not credible and why.

9

The reviewing court may enter a “judgment affirming, modifying, or reversing”

10

the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing court may also remand

11

the case to the Social Security Administration for further proceedings. Id.

12

The Court finds that remand for further proceedings is warranted because

13

additional administrative proceedings could remedy the defects in the ALJ’s decision.

14

See Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). Therefore, the Court ORDERS

15

that judgment be entered REVERSING the decision of the Commissioner and

16

REMANDING this matter for further administrative proceedings pursuant to sentence

17

four of 42 U.S.C. § 405(g).

18

IT IS SO ORDERED.

19

Dated: September 24, 2024

20
21
22
23
24
25
26
27
28
18

23cv674-MSB