(SS) Roberts v. Commissioner of Social Security

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 PAULA JEAN ROBERTS, ) Case No.: 1:18-cv-0604 - JLT

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12 Plaintiff, ) ORDER DENYING THE COMMISSIONER’S

) MOTION FOR SUMMARY JUDGMENT AND

13 v. ) REMANDING THE ACTION PURSUANT TO

) SENTENCE FOUR OF 42 U.S.C. § 405(G)

14 )

ANDREW M. SAUL1, ) ORDER DIRECTING ENTRY OF JUDGMENT IN

15 Commissioner of Social Security, ) FAVOR OF PLAINTIFF PAULA JEAN

) ROBERTS AND AGAINST DEFENDANT

16 Defendant. ) ANDREW M. SAUL, COMMISSIONER OF

) SOCIAL SECURITY

17 )

18 Paula Jean Roberts asserts she is entitled to a period of disability and disability insurance

19 benefits under Title II of the Social Security Act. Plaintiff seeks judicial review of the decision denying

20 her application for benefits, asserting the administrative law judge erred in evaluating her credibility.

21 Because the ALJ failed to apply the proper legal standards, the Commissioner’s motion for summary

22 judgment (Doc. 20) is DENIED and the action is REMANDED for further proceedings pursuant to

23 sentence four of 42 U.S.C. § 405(g).

24 BACKGROUND

25 In September 2013, Plaintiff filed her application for benefits, in which she alleged disability

26 due to a low back injury and right eye injury beginning October 25, 2011. (Doc. 7-4 at 3) The Social

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28 1 This action was originally brought against Nancy A. Berryhill in her capacity as then-Acting Commissioner.

1 Security Administration denied the applications at the initial level and upon reconsideration. (See

2 generally Doc. 7-4) Plaintiff requested a hearing and testified before an ALJ on July 14, 2016. (Doc.

3 7-3 at 19, 44) The ALJ determined Plaintiff was not disabled under the Social Security Act, and issued

4 an order denying benefits on November 4, 2016. (Id. at 19-27) Plaintiff filed a request for review of

5 the decision with the Appeals Council, which denied the request on February 22, 2018. (Id. at 2-4)

6 Therefore, the ALJ’s determination became the final decision of the Commissioner of Social Security.

7 STANDARD OF REVIEW

8 District courts have a limited scope of judicial review for disability claims after a decision by

9 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact,

10 such as whether a claimant was disabled, the Court must determine whether the Commissioner’s

11 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ’s

12 determination that the claimant is not disabled must be upheld by the Court if the proper legal standards

13 were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of Health &

14 Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

15 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a

16 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

17 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole

18 must be considered, because “[t]he court must consider both evidence that supports and evidence that

19 detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

20 DISABILITY BENEFITS

21 To qualify for benefits under the Social Security Act, Plaintiff must establish she is unable to

22 engage in substantial gainful activity due to a medically determinable physical or mental impairment

23 that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C.

24 § 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

25 his physical or mental impairment or impairments are of such severity that he is not only

unable to do his previous work, but cannot, considering his age, education, and work

26 experience, engage in any other kind of substantial gainful work which exists in the

national economy, regardless of whether such work exists in the immediate area in

27 which he lives, or whether a specific job vacancy exists for him, or whether he would be

hired if he applied for work.

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1 42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v.

2 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability,

3 the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial

4 gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).

5 ADMINISTRATIVE DETERMINATION

6 To achieve uniform decisions, the Commissioner established a sequential five-step process for

7 evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520, 416.920(a)-(f). The process requires

8 the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of

9 alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the

10 listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had

11 the residual functional capacity to perform to past relevant work or (5) the ability to perform other work

12 existing in significant numbers at the state and national level. Id. The ALJ must consider testimonial

13 and objective medical evidence. 20 C.F.R. §§ 404.1527, 416.927.

14 A. Medical Background and Opinions

15 In January 2001, Plaintiff was working as a campus supervisor “when she slipped and fell on an

16 icy sidewalk.” (Doc. 7-8 at 19) Plaintiff reported the injury and was diagnosed with a “low back

17 strain” for which she received medical treatment, including physical therapy. (Id. at 19, 20)

18 Plaintiff had an MRI of her lumbar spine taken on April 1, 2001. (Doc. 7-8 at 20) Dr. Hosam

19 Moustafa found “evidence of disc desiccation with decreased hydration and narrow disc heights at L4-5

20 and L5-S1.” (Id.) In addition, Plaintiff had “a mild posterior disc bulge at L5-S1” and a “small central

21 posterior disc herniation at L4-5.” (Id.) Plaintiff reported “her back pain increased over the years,” and

22 she resigned in October 2007 “due to her back pain.” (Id. at 19)

23 On October 24, 2011, Plaintiff was working for a fertilizer service in a cornfield when she

24 bumped her head on the tractor cab and injured her right eye. (Doc. 7-8 at 3) She suffered a large

25 retinal tear, for which she had emergency laser surgery on November 1, 2011. (Id.; Doc. 7-14 at 53)

26 Dr. Robert Caton, an orthopedic surgeon, evaluated Plaintiff on February 2, 2012, “for the first

27 time in regard to her … low back [injury] which occurred more than ten years ago.” (Doc. 7-9 at 26)

28 Dr. Caton observed that Plaintiff was “in obvious distress” and moved “in a somewhat slow, awkward

1 fashion, slightly leaning forward at the waist.” (Id.) Dr. Caton determined Plaintiff’s range of motion

2 was “less than 5 degrees of extension,” and noted she complained of pain at 20 degrees with rotation.

3 (Id.) He opined Plaintiff needed a new MRI and should be referred to a neurosurgeon. (Id. at 28)

4 Plaintiff underwent the MRI of her lumbar spine on April 3, 2012. (Doc. 7-8 at 21) Dr. Gordon

5 Zink-Brody determined Plaintiff thoracic spine showed “mild disc desiccation at all levels with

6 minimal annular bulging of T11-12 slightly flattening the ventral thecal sac without causing significant

7 spinal stenosis.” (Id.; see also Doc. 7-10 at 7) He found Plaintiff’s lumbar spine showed “disc

8 desiccation … with loss of disc height and mild annular bulging” at the L4-5 and L5-S1 levels.” (Id.)

9 Dr. Zink-Brody concluded there “was global disc desiccation, annular bulging of multiple discs without

10 frank disc extrusion or central canal stenosis, mild bilateral lateral recess narrowing at L4-5, discogenic

11 osteophyte encroaching on the existing nerve roots at L5-S1 with mild left foraminal stenosis also

12 contributed to by facet hypertrophy.” (Id.)

13 Dr. Beth Bathgate performed an agreed medical evaluation regarding Plaintiff’s low back injury

14 on April 10, 2012. (Doc. 7-8 at 18) She noted at that time, Plaintiff was taking tramadol, naproxen,

15 and carisoprodol. (Id. at 21) Plaintiff reported she had “constant … throbbing, shooting, aching and

16 burning” pain “in the low back into the left buttock and left leg to the foot.” (Id. at 22) Plaintiff

17 indicated her pain interfered “with her ability to write or type,” walk one block, lift ten pounds, sit for

18 one half hour, climb a flight of stairs, squat, kneel, and stand for half an hour. (Id.) Dr. Bethgate

19 observed Plaintiff “had a normal gait and was able to walk on toes;” but “[s]he was unable to walk on

20 heels due to pain.” (Id. at 24) Dr. Bethgate found Plaintiff had “tenderness and spasm over the left

21 side of the low back from L4 to S1 and paraspinal muscles diffusely.” (Id.) Plaintiff’s range of motion

22 in her back was reduced from 60o to 25o with flexion, 25o to 10o with extension, and 25o to 15o with

23 lateral bending on the left. (Id.) Dr. Bethgate noted Plaintiff had normal straight leg raises bilaterally

24 and her “[s]ensation to pinprick [was] intact in both lower extremities except decreased over the left leg

25 diffusely.” (Id.)

26 On April 11, 2012, Dr. Caton observed that Plaintiff “had very poor motion” and did “not walk

27 normally on heels and toes.” (Doc. 7-9 at 21-22) He opined Plaintiff had “failed recent attempts at

28 conservative care” and referred her to Dr. Remington, a neurosurgeon. (Id. at 22)

1 Dr. Philip Levy performed an agreed medical evaluation on April 24, 2012. (Doc. 7-8 at 6)

2 Plaintiff described seeing “many floaters” in her right eye, and stated she could not “see as well at

3 distance or near” since her injury. (Id.) In addition, she stated that she saw “a strobe light” or “a zig-

4 zag flashing light” in the corner of her right eye. (Id.) Dr. Levy determined Plaintiff’s visual acuity

5 was 20/60 in the right eye and 20/30 in the left eye. (Id. at 10) He found Plaintiff’s retinal tear was

6 “well sealed” and “[t]here was no optic atrophy or papilledema.” (Id.) Dr. Levy opined Plaintiff’s

7 “complaint that she sees many floaters in her right eye… is correct and caused by benign vitreous

8 opacities, due to physiologic aging.” (Id. at 12) He believed Plaintiff’s complaint of a strobe light was

9 “due to a vitreous traction on her retina as the vitreous separates from the retina,” and it would “gradual

10 decrease over the next several months.” (Id.) Dr. Levy recommended Plaintiff “[o]btain prescription

11 bifocal safety glasses to improve… [her] vision and protect… [her] eyes from additional injury.” (Id.)

12 He opined Plaintiff was “able to sit, stand, walk, move about, carry, handle objects, speak and travel

13 without difficulty.” (Id. at 14) According to Dr. Levy, Plaintiff’s “primary problem was a slight

14 decrease in vision … may limit her eligibility for a variety of occupations which may require … best-

15 corrected vision better than 20/30.” (Id.)

16 In May 2012, Dr. Benjamin Remington performed the neurosurgical consultation. (Doc. 7-15 at

17 2) Dr. Remington determined Plaintiff had “good range of motion” and observed that she had a normal

18 gait. (Id. at 3) He found Plaintiff’s strength was “5 out of 5 in the lower extremities” and her sensation

19 was intact. (Id.) Dr. Remington determined Plaintiff was “a possible surgical candidate” and discussed

20 “the possibility of doing surgery versus epidural steroid injections.” (Id.) Plaintiff chose “to start with

21 the epidural steroid injections,” and Dr. Remington emphasized she should also “do daily stretching

22 and strengthening exercises.” (Id.) Plaintiff received the first epidural injection in July 2012, which

23 “gave her 4-5 weeks of relief.” (Doc. 7-9 at 7)

24 In August 2012, Dr. Caton determined Plaintiff should continue with conservative care and

25 prescribed “some anti-inflammatory and pain cream, noting the cream “help[ed] reduce pain and

26 muscle spasm.” (Doc. 7-9 at 17-18)

27 Plaintiff had a second epidural injection in October 2012, which “lessened her pain and lessened

28 her discomfort.” (Doc. 7-9 at 16; see also Doc. 7-15 at 29) On October 24, Dr. Caton observed that

1 Plaintiff was “moving about fairly well,” and her “motor tone and sensation appear[ed] to be intact.”

2 (Id.) He opined Plaintiff needed “to proceed in a slow cautious fashion … with no heavy lifting,

3 pushing, pulling or comparable activity.” (Id.) In addition, Dr. Caton stated Plaintiff could “[]not work

4 for two months.” (Id.)

5 Dr. Caton saw Plaintiff on December 6, 2012, at which time he noted Plaintiff walked “with an

6 abnormal gait, slightly crouched forward.” (Doc. 7-9 at 13) He also observed that Plaintiff had

7 “difficulty getting on and off the examination table” and “walking on heels and toes.” (Id.) Plaintiff

8 complained of some left foot weakness, and Dr. Caton determined she had reduced reflexes on the

9 right, and “trace” reflexes on the left. (Id.) He again opined Plaintiff “cannot work for a period of two

10 months,” and he requested authorization for a discogram at the L4-L5 levels. (Id.)

11 On December 11, 2012, Dr. Levy performed an agreed medical re-evaluation. (Doc. 7-8 at 27)

12 Dr. Levy determined Plaintiff’s visual acuity was 20/50 in her right eye and 20/30 in the left. (Id. at

13 31) He opined Plaintiff’s prognosis was guarded because she “may develop additional retinal tears as

14 the vitreous separates from the retina.” (Id. at 33) Dr. Levy believed Plaintiff would “need

15 ophthalmological care for the rest of her life to detect and treat any additional retinal tears or any retinal

16 detachment(s).” (Id. at 36)

17 Dr. Mohinder Nijjar performed an agreed medical evaluation regarding Plaintiff’s back injury

18 on December 20, 2012. (Doc. 7-16 at 2) Plaintiff described the pain in her back as “3-8/10 in intensity,

19 increasing with sitting for an hour, lying down for 30 minutes, bending forward for five minutes, [and]

20 walking for 30 minutes.” (Id. at 3) Dr. Nijjar determined Plaintiff had “straightening of the lumbar

21 curvature and tenderness of the lumbar spine which extend[ed] from L2 through S1.” (Id. at 10)

22 Plaintiff exhibited “decreased sensation over the outer aspect of the left thigh and over the calf area,”

23 with both touch and pinprick. (Id. at 11) Dr. Nijjar opined that if Plaintiff’s pain was not controlled

24 with conservative treatment, “she may be a surgical candidate for excision of the disc at L4-5 and

25 fusion at the same time.” (Id. at 13)

26 In January 2013, Dr. Caton noted Plaintiff “move[d] about the office in a very slow fashion,”

27 and she “complain[ed] of left leg weakness when trying to get on and off the examination table.” (Doc.

28 7-9 at 10) Dr. Caton determined Plaintiff had “weakness of the left ankle,” and “decreased sensation

1 over the dorsal aspect of the [right] foot.” (Id.)

2 In May 2013, Dr. Caton observed that Plaintiff “move[d] very slowly complaining of pain and

3 she [walked] with a slightly crouched gait.” (Doc. 7-9 at 7) Dr. Caton opined Plaintiff’s condition

4 “worsened” overall, and she should return to Dr. Remington for re-evaluation because “the

5 conservative care route [had] not worked” and she was ready for surgery. (Id.) Dr. Caton instructed

6 Plaintiff to “not overdo her lifting, pushing, pulling or comparable activity.” (Id.) He told Plaintiff to

7 return once she had a discogram. (Id.)

8 In September 2013, Dr. Caton noted Workers Comp denied the request for a discogram. (Doc.

9 7-9 at 4) Dr. Caton found Plaintiff’s “motor tone and sensation remain[ed] intact,” though she exhibited

10 tenderness over the L5-S1 area. (Id. at 5)

11 Dr. Samuel Rush performed a consultative examination on January 31, 2014. (Doc. 7-9 at 73)

12 Dr. Rush determined Plaintiff’s visual acuity was 20/100 in her right eye and 20/30 in her left. (Id. at

13 74) Plaintiff was “able to walk without difficulties,” including toes and heels, and had negative straight

14 leg raising tests. (Id. at 76) Dr. Rush found Plaintiff had “100% range of motion,” and her senses were

15 “[n]ormal to touch, temperature and pinprick.” (Id.) Dr. Rush concluded Plaintiff could lift and carry

16 “50 pounds occasionally and 25 pounds frequently;” sit, stand, and walk without restriction; and

17 perform postural activities without restriction. (Id. at 76-77)

18 Dr. Clarence Ballard reviewed available records and completed a physical residual functional

19 capacity assessment regarding Plaintiff’s current level of functioning on February 26, 2014. (Doc. 7-4

20 at 8-10) Dr. Ballard opined Plaintiff could lift and carry 50 pounds occasionally and 25 pounds

21 frequently, stand and/or walk about six hours in an eight-hour day, and sit about six hours in an eight-

22 hour day. (Id. at 9) He determined Plaintiff did not have any postural, manipulative, or environmental

23 limitations. (Id.) Dr. Ballard noted he gave “[g]reat weight” to the opinion from Dr. Rush, and he

24 opined Plaintiff’s “statements regarding [her] symptoms [were] not wholly consistent with [the]

25 established [medical record].” (Id.)

26 In April 2014, Dr. Caton noted Plaintiff “complain[ed] of severe pain and radiation of pain from

27 her back into the left lower extremity,” and that she was unable to do activities of daily living. (Doc. 7-

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1 10 at 9) He found Plaintiff’s motor abilities and sensation remained intact. (Id.) Dr. Caton again

2 opined Plaintiff needed a neurosurgical consultation. (Id.)

3 Dr. P. Frye reviewed the medical record related to Plaintiff’s request for reconsideration on July

4 11, 2014, and noted Plaintiff had a “[v]ery unremarkable” consultative examination. (Doc. 7-4 at 18)

5 However, Dr. Frye observed the “MRI finding[] of L5S1 root involvement [was] significant.” (Id.)

6 Dr. Frye opined that as a result, Plaintiff’s residual functional capacity should “reduce[d] to light.”

7 (Id.) Specifically, Dr. Frye opined Plaintiff could lift and carry 20 pounds occasionally and 10 pounds

8 frequently, stand and/or walk about six hours in an eight-hour day, and sit about six hours in an eight-

9 hour day. (Id. at 19-20) Dr. Frye also opined Plaintiff was limited to occasional stooping or bending,

10 and she could perform all other postural activities on a frequent basis. (Id. at 20)

11 Plaintiff visited the Ortho-Pod Practice in September 2014, due to her “history of chronic lower

12 back and left leg pain.” (Doc. 7-13 at 23) Upon examination, Plaintiff’s gait was “normal with heel-

13 toe progression.” (Id.) She was able to “walk on her heels but it was painful,” and she reported that

14 she had bone spurs injected twice. (Id.) The unidentified examiner observed that Plaintiff “was

15 definitely weaker on the left than the right” with squats, and her “deep tendon reflexes were difficult to

16 elicit in knees and ankles.” (Id.) Plaintiff was referred “to physical therapy two times a week for 4

17 [weeks] for core strengthening, pelvic tilts[,] lumbosacral stretches, [and] iliotibial band stretching.”

18 (Id. at 24)

19 In March 2015, Dr. David Wells evaluated Plaintiff upon the referral of another physician, due

20 to “a long-standing history of bilateral plantar heel pain and more recent[] posterior heel pain [that was]

21 worse on the right side.” (Doc. 7-14 at 36) Dr. Wells took x-rays of Plaintiff’s feet and diagnosed her

22 with Achilles tendonitis, calcaneal spur, and plantar fasciitis. (Id.) Dr. Wells believed Plaintiff had

23 “exhausted conservative care with respect to the plantar fasciitis” and “discussed surgical intervention.”

24 (Id.) He informed Plaintiff that the heel surgery “would involve 6 weeks in a cast followed by 3 weeks

25 or so in a fracture walker booth with physical therapy,” and the postoperative pain “may last 4-6

26 months sometimes up to a heal.” (Id.)

27 Plaintiff elected to proceed with the surgery on her right foot, which was performed on April 17,

28 2015. (Doc. 7-14 at 31) Dr. Wells performed an endoscopic plantar fascia release and retrocalcancal

1 osteoectomy with reattachment of the Achilles tendon. (Id.) Plaintiff was directed to not place any

2 weight on her right foot and use a “rollabout scooter.” (Id. at 28) On May 28, Dr. Wells found Plaintiff

3 was “doing very well” and recommended she perform “gentle range of motion exercises.” (Id. at 25-26)

4 He determined Plaintiff could start physical therapy in two weeks. (Id.)

5 In June 2015, Dr. Wells opined Plaintiff was “doing fairly well,” though Plaintiff reported she

6 had “significant back pain.” (Doc. 7-14 at 23) Lumbar spine x-rays were negative, and did not show

7 significant joint space abnormalities. (Id. at 41) Plaintiff continued to use the scooter and “just started

8 physical therapy,” which she did with a fracture walker boot. (Id. at 23-24) Dr. Wells observed that

9 Plaintiff had “[m]ild edema… about the ankle and rear foot.” (Id. at 24) He “[r]ecommended range of

10 motion exercise and a ‘runners stretch’ activity to increase her dorsiflexion” beyond the 90 degrees she

11 was able to do during the examination. (Id.)

12 Plaintiff continued to wear her boot and use the rollabout scooter in July 2015, about twelve

13 weeks after the surgery. (Doc. 7-14 at 21) Dr. Wells found Plaintiff had “mild edema about the

14 peritendinous region” and “[s]light tenderness on palpation… but not significant.” (Id. at 22) He

15 directed Plaintiff to continue with physical therapy and “recommended alternating between wearing the

16 boot for a couple of hours and then wearing a regular shoe for a couple hours.” (Id.) Dr. Wells noted

17 Plaintiff could “use crutches as an assist or transition into a cane,” and perform “[p]rogressive

18 weightbearing activities as tolerated.” (Id.)

19 In August 2015, Dr. Wells noted Plaintiff completed physical therapy and “renewed her

20 physical therapy prescription.” (Doc. 7-14 at 14) Plaintiff continued to use a crutch and reported “some

21 tenderness when she put[] the right heel on the ground.” (Id. at 13) Dr. Wells recommended the

22 physical therapist “emphasize increasing strength,” and “stringing recommended … limiting the crutch

23 [use],” and for Plaintiff to begin using a cane and walking for exercise. (Id. at 14) He “[a]lso

24 recommended walking in [a] pool as she [would] be somewhat buoyant.” (Id.)

25 The same month, Dr. Lenita Williamson evaluated Plaintiff for right knee pain. (Doc. 7-13 at

26 21) Dr. Williams found Plaintiff had mild effusion and tenderness in the medial joint. (Id.) She also

27 referred Plaintiff to physical therapy. (Id. at 22)

28 In September 2015, Plaintiff complained of stiffness in her neck. (Doc. 7-13 at 36) Dr. Avila

1 determined Plaintiff exhibited tenderness and muscle tenderness, and recommended she receive

2 physical therapy, but Plaintiff declined a referral. (Id.) Dr. Avila noted Plaintiff said “she [would] ask

3 her current physical therapist about some home exercise she can do for her neck.” (Id.) Dr. Wells

4 opined Plaintiff’s “heel on the right side actually look[ed] good,” and she was discharged from his care.

5 (Doc. 7-14 at 12)

6 In November 2015, Plaintiff returned to Dr. Wells for a follow-up appointment. (Doc. 7-14 at

7 9) She reported that she was “walking a couple of miles per day.” (Doc. 7-14 at 9) Dr. Wells took

8 imaging of her right foot and found “the anchors [were] almost resorbed” and she had “[v]ery little

9 bony regrowth.” (Id.) He gave Plaintiff a new prescription for physical therapy and directed her to

10 continue walking for exercise. (Id.)

11 In January 2016, Plaintiff stated she was “able to walk around the block… with little pain,” and

12 she would put her boot back on around 1 or 2pm. (Doc. 7-14 at 5) Dr. Wells again recommended she

13 “[c]ontinue walking around the block even twice a day if possible” and continue with physical therapy.

14 (Id. at 6)

15 B. Administrative Hearing Testimony

16 Plaintiff testified before an ALJ on July 14, 2016. (Doc. 7-3 at 47) She reported that she could

17 no longer work due to a low back injury and “[b]oth of [her] feet are bad.” (Id. at 48-49) Plaintiff said

18 she felt “[a] lot of burning and stiffness” with her back pain. (Id. at 50) She stated the pain was “there

19 most of the time, but it comes and goes” and would increase with activity. (Id.)

20 She reported that she had received epidural injections in her back, and “the first shot really

21 helped, but the second one didn’t help much.” (Doc. 50) Plaintiff reported she had prescription pain

22 medication, but she “can’t really take it” because it made her sick. (Id. at 51) She stated she also

23 received a prescription for anti-nausea medication to take with the pain pills, but she would “only take

24 it if [she] really, really [had] to,” because she would “get really sick and ... really tired.” (Id.) Plaintiff

25 said to alleviate her pain, she would “sit on ice or lay on ice a lot,” and she used a TENS unit

26 “[p]robably three times a week.” (Id.) She reported she was no longer using an assistive device for

27 ambulation. (Id.)

28 Plaintiff said she also had issues with her feet, which had “bone spurs sticking in the Achilles

1 tendon.” (Doc. 7-3 at 52-53) She testified that she had “shots in [both] feet and [used] orthotics” in her

2 shoes. (Id. at 55) Plaintiff said the physician asked her which foot she would like to have surgery on

3 first, and she chose the right foot. (Id. at 53) Plaintiff said she had completed eight months of physical

4 therapy, “had a cast and two boots,” and her foot was “still healing.” (Id.) She reported that she would

5 “try to walk around the block a couple times every day,” which was “a little city block... [with] like

6 four houses on each side.” (Id.) Plaintiff said she could not “seem to walk more than a couple times

7 around the block without it really swelling and hurting,” and her physician “said it could take a year

8 and a half to heal up,” so she was “just waiting.” (Id.) She stated that the physicians were trying to see

9 if the “foot heals up pretty good,” because she “needs back surgery,” which would require her “to be on

10 a walker for a while.” (Id. at 53-54)

11 Plaintiff estimated she could sit “20, 30 minutes” at one time; “stand maybe 15, 20 minutes;”

12 and “walk a couple times around the block.” (Doc. 7-3 at 56) She said she tried “not to lift much at

13 all,” and did not “want to lift over 15 [pounds] or so.” (Id.) Plaintiff explained that when grocery

14 shopping, she would “lift a bag here and there, but [she] had people help [her] out of the store.” (Id.)

15 She testified she did some household chores such as dishes, folding clothes, and microwave meals such

16 as “a packet of oatmeal every morning and... a lean cuisine for lunch.” (Id. at 56) Plaintiff stated her

17 daughter did “the deep cleaning.” (Id.) She reported she did not go outside much, and would “usually

18 just go to the store, the doctor, or to [her] mom’s house,” which was four miles away. (Id. at 57)

19 Plaintiff said she also would get in a pool “and try to walk around and move around a little bit.” (Id.)

20 C. The ALJ’s Findings

21 Pursuant to the five-step process, the ALJ determined first that Plaintiff did not engage in

22 substantial activity “from ger alleged onset date of October 25, 2011, through her date last insured of

23 March 31, 2015.” (Doc. 7-3 at 21) Second, the ALJ found Plaintiff’s severe impairments included

24 “lumbar degenerative disc disease and obesity.” (Id.) At step three, the ALJ determined these

25 impairments did not meet or medically equal a listed impairment. (Id. at 22-23) Next, the ALJ opined:

26 [T]he claimant had the residual functional capacity to perform less than the full range

of light work as defined in 20 CFR 404.1567(b) in that the claimant can lift and carry

27 20 pounds occasionally and 10 pounds frequently, sit for six hours in an 8-hour day,

and stand and/or walk for six hours in an 8-hour day. She can occasionally climb

28 ramps and stairs, never climb ladders, ropes, and scaffolds, and frequently balance,

stoop, kneel, crouch, and crawl.

1 (Id. at 24) With this residual functional capacity, the ALJ found Plaintiff was “unable to perform any

2 past relevant work.” (Id. at 27) However, the ALJ found Plaintiff was able to work in “other

3 occupations with jobs existing in significant numbers in the national economy.” (Id.) Thus, the ALJ

4 concluded Plaintiff was not disabled as defined by the Social Security Act. (Id. at 28-29)

5 DISCUSSION AND ANALYSIS

6 Plaintiff asserts the ALJ did not identify legally sufficient reasons to reject her credibility.

7 (Doc. 17 at 18-21) Defendant argues the ALJ’s decision should be affirmed because “[t]he ALJ

8 appropriately found Plaintiff’s testimony not fully supported by the record.” (Doc. 20 at 8) According

9 to the Commissioner, “the ALJ properly explained that [her testimony] was not consistent with the

10 objective evidence and other evidence in the record.” (Id. at 9)

11 A. The ALJ’s Credibility Analysis

12 In assessing credibility, an ALJ must determine first whether objective medical evidence shows

13 an underlying impairment “which could reasonably be expected to produce the pain or other symptoms

14 alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan,

15 947 F.2d 341, 344 (9th Cir. 1991)). Where the objective medical evidence shows an underlying

16 impairment, and there is no affirmative evidence of a claimant's malingering, an “adverse credibility

17 finding must be based on clear and convincing reasons.” Id. at 1036; Carmickle v. Comm’r of Soc. Sec.

18 Admin., 533 F.3d 1155, 1160 (9th Cir. 2008).

19 Factors that may be considered by an ALJ in assessing a claimant’s credibility include, but are

20 not limited to: (1) the claimant’s reputation for truthfulness, (2) inconsistencies in testimony or between

21 testimony and conduct, (3) the claimant’s daily activities, (4) an unexplained, or inadequately

22 explained, failure to seek treatment or follow a prescribed course of treatment, and (5) testimony from

23 physicians concerning the nature, severity, and effect of the symptoms of which the claimant

24 complains. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Thomas v. Barnhart, 278 F.3d

25 947, 958-59 (9th Cir. 2002) (evaluating credibility, the ALJ may consider a claimant’s reputation for

26 truthfulness, inconsistencies between a claimant’s testimony and conduct, and daily activities).

27 According to the ALJ, Plaintiff’s “medically determinable impairments could be reasonably

28 expected to cause the alleged symptoms.” (Doc. 7-3 at 25) However, the ALJ found Plaintiff’s

1 “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely

2 consistent with the medical evidence and other evidence in the record for the reasons explained in [the]

3 decision.” (Id. at 26) In support of this credibility finding, the ALJ also cited the treatment received by

4 Plaintiff and her level of activity. (Id.)

5 1. Objective medical evidence

6 In general, “conflicts between a [claimant’s] testimony of subjective complaints and the

7 objective medical evidence in the record” may constitute “specific and substantial reasons that

8 undermine . . . credibility.” Morgan v. Commissioner of the SSA, 169 F.3d 595, 600 (9th Cir. 1999).

9 However, “summariz[ing] the medical evidence supporting [the] RFC determination... is not the sort of

10 explanation or the kind of ‘specific reasons’ [the Court] must have in order to ... ensure that the

11 claimant’s testimony was not arbitrarily discredited.” See, e.g., Brown-Hunter v. Colvin, 806 F.3d 487,

12 494 (9th Cir. 2015). Consequently, “the observations an ALJ makes as part of the summary of the

13 medical record are not sufficient to establish clear and convincing reasons for rejecting a Plaintiff’s

14 credibility.” Argueta v. Colvin, 2016 WL 4138577 at *13 (E.D. Cal. Aug. 3, 2016).

15 The ALJ opined Plaintiff’s “allegations of severe symptoms are not supported by the clinical

16 evidence,” and followed this finding with a chronological recitation of evidence related to Plaintiff’s

17 back pain, beginning with the MRI in April 2012. (Doc. 7-3 at 23; see also id. at 23-25) After

18 discussing the medical opinion evidence, the ALJ again turned to Plaintiff’s credibility, stating that

19 Plaintiff’s “allegations of severe symptoms have not resulted in significant limitations in her physical

20 functioning and are not supported by the clinical evidence.” (Id. at 26) However, this Court previously

21 determined that unless the ALJ links the claimant’s testimony to “the observations an ALJ makes as

22 part of the summary of the medical record [this is] not sufficient to establish clear and convincing

23 reasons for rejecting a Plaintiff’s credibility.” Argueta v. Colvin, 2016 U.S. Dist. LEXIS 102007 at *44

24 (E.D. Cal. Aug. 3, 2016).

25 In Brown-Hunter, the claimant argued the ALJ failed to provide clear and convincing reasons

26 for rejecting her symptom testimony. Id., 806 F. 3d at 491. The district court identified inconsistences

27 in the ALJ’s summary of the medical record that it opined gave rise to reasonable inferences about

28 Plaintiff’s credibility. Id. On appeal, the Ninth Circuit determined the ALJ failed to identify the

1 testimony she found not credible and did not link that testimony to support the adverse credibility

2 determination. Id. at 493. The Court explained that even if the district court’s analysis was sound, the

3 analysis could not cure the ALJ’s failure. Id. at 494.

4 As in Brown-Hunter, it appears the ALJ provided sufficient analysis to support a conclusion

5 that Plaintiff’s complaints and asserted limitations were inconsistent with the medical record but failed

6 to point specifically to the portions of the hearing testimony the ALJ found to be incredible. Indeed, it

7 appears that the ALJ analyzes not Plaintiff’s testimony but the credibility of her complaints to the

8 medical providers when compared to the objective medical findings, and her reports related to the

9 treatment received. (See Doc. 7-3 at 26) Because the ALJ failed to link the credibility findings from the

10 medical record to Plaintiff’s testimony and reject the limitations to which she testified, the ALJ made

11 an error the Court is unable to cure. See Brown-Hunter, 806 F. 3d at 494.

12 2. Treatment received

13 In assessing credibility, the ALJ may consider “the type, dosage, effectiveness, and side effects

14 of any medication.” 20 C.F.R. § 404.1529(c). Further, the treatment Plaintiff received, especially when

15 conservative, is a legitimate consideration in a credibility finding. See Meanel v. Apfel, 172 F.3d 1111,

16 1114 (9th Cir. 1999) (the ALJ properly considered the physician's failure to prescribe, and the

17 claimant’s failure to request, medical treatment commensurate with the “supposedly excruciating pain”

18 alleged). However, “[a] claimant cannot be discredited for failing to pursue non-conservative treatment

19 options where none exists.” LaPeirre-Gutt v. Astrue, 382 Fed. Appx. 662, 664 (9th Cir. 2010).

20 The ALJ observed that Plaintiff had “a long history of conservative treatment for the ... listed

21 impairments.” (Doc. 7-3 at 24) In addition, the ALJ noted: Plaintiff reported she had “bone spurs in

22 the heels of both feet (Exhibit 8E; 10E). However, the claimant has not received treatment consistent

23 with a chronic pain syndrome such as biofeedback, acupuncture, or attendance at a pain management

24 clinic.” (Id.) Further, ALJ noted that “[i]n September 2015, physical therapy was recommended, but

25 she declined and wanted home exercises.” (Id.) Plaintiff contends in making these findings, the ALJ

26 engaged in a selective reading of the treatment record. (Doc. 17 at 19-20)

27 According to Plaintiff, the ALJ erred because he failed to acknowledge that Plaintiff had a

28 surgical procedure on her right foot and anticipates surgery on her left foot. (Doc. 17 at 19-20) In

1 addition, Plaintiff contends:

2 Nor does the ALJ recognize that multiple physicians assessed that conservative care

had failed and recommended back surgery for years pending the resolution of Ms.

3 Roberts’ workers compensation claim. (AR 353, 359, 431, 586, 692) Or that Plaintiff

was administered several nerve blocks to her lower back by a pain management

4 specialist. (AR 361, 584, 591, 647-648, 692) The ALJ references that “[i]n September

2015, physical therapy was recommended, but she declined and wanted home

5 exercises.” (AR 25, citing AR 549) However, the treatment note cited by the ALJ

refers to the recommendation for physical therapy for neck pain Plaintiff had been

6 experiencing for the prior five days. (AR 549) The treatment note indicates that Ms.

Roberts “will ask her current physical therapist about some home exercises she can do

7 for her neck.” Id. The ALJ apparently failed to understand that Ms. Roberts had been

in physical therapy for many months. (AR 52, 61, 534, 553, 556, 558, 562, 563-568)

8 The ALJ’s apparent approach of plucking selective bits of the record to support his

conclusion is prohibited.

9

10 (Doc. 17 at 20)

11 In response, Defendant contends the ALJ “permissibly considered that Plaintiff’s back

12 impairment generally received conservative treatment.” (Doc. 20 at 10, citing Johnson v. Shalala, 60

13 F.3 1428, 1434 (9th Cir. 1995) [conservative course of treatment suggested “a lower level of both

14 pain and functional limitation”]); Walter v. Astrue, 2011 WL 1326529, at *3 (C.D. Cal. Apr. 6, 2011)

15 [ALJ permissibly discredited claimant’s allegations based on conservative treatment consisting of

16 Vicodin, physical therapy, and an injection]) According to Defendant, “the ALJ reasonably considered

17 the lack of surgical recommendation and generally conservative treatment were not consistent with

18 Plaintiff’s allegations of disabling pain.” (Id. at 1)

19 Importantly, as Plaintiff argues, the ALJ fails to address significant portions of the medical

20 record. For example, though the ALJ notes Plaintiff had “bone spurs in the heels of both feet,” and

21 criticized her for the lack of “biofeedback, acupuncture, or attendance at a pain management clinic”

22 treatments (Doc. 7-3 at 26), the ALJ failed to discuss the fact that Plaintiff received injections in her

23 heels. (See Doc. 7-13 at 23) More critically, the ALJ fails to address the fact that Dr. Wells determined

24 Plaintiff needed surgical intervention for both feet, or discuss surgical procedure performed by Dr.

25 Wells in March 2015—which included an endoscopic plantar fascia release and retrocalcancal

26 osteoectomy with reattachment of the Achilles tendon—and clearly was not a “conservative” treatment.

27 In addition, the ALJ failed to discuss the epidural injections Plaintiff received for her back, or

28 the finding of Plaintiff’s treating physician, Dr. Caton, that Plaintiff “failed... attempts at conservative

1 care” and “the conservative care route [had] not worked.” (Doc. 7-9 at 7, 22) Courts have questioned

2 whether such an injection constitutes conservative treatment. See, e.g. Garrison v. Colvin, 759 F.3d

3 995, 1015 n. 20 (9th Cir. 2014) (expressing “doubt that epidural steroid shots to the neck and lower

4 back qualify as ‘conservative’ medical treatment”); Oldham v. Astrue, 2010 WL 2850770, at *9 (C.D.

5 Cal. 2010) (noting that injections are “performed in operation-like settings” and finding they are not a

6 form of conservative treatment); Tagle v. Astrue, 2012 WL 4364242 at *4 (C.D. Cal. Sept. 21, 2012)

7 (“While physical therapy and pain medication are conservative, epidural and trigger point injections are

8 not”). Nevertheless, the ALJ did not properly evaluate the treatment Plaintiff received, because he

9 failed to discuss either the injections or the surgical intervention. Accordingly, this factor does not

10 support the adverse credibility determination.

11 3. Daily activities

12 An “ALJ [is] permitted to consider daily living activities in [a] credibility analysis.” Burch v.

13 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Daily activities “form the basis for an adverse credibility

14 determination” when: (1) the daily activities contradict the claimant's other testimony or (2) the daily

15 activities meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.

16 2007); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (factors to consider in evaluating a

17 claimant’s testimony include “whether the claimant engages in daily activities inconsistent with the

18 alleged symptoms” and whether “the claimant reports participation in everyday activities indicating

19 capacities that are transferable to a work setting”). Neither of these bases is supported by the ALJ’s

20 decision or the record.

21 The ALJ noted he gave “great weight to the claimant’s fairly wide range of daily activities,”

22 which he found included “light duty housework, watching television, washing dishes, and laundry.”

23 (Doc. 7-3 at 26) The ALJ also noted Plaintiff stated she “prepared simple meals, drove, went out alone,

24 shopped every two weeks for two hours, and visited with others.” (Id.) The ALJ does not make any

25 specific findings how or whether these activities transfer to a work setting. Indeed, the Ninth Circuit

26 opined, “Daily household chores and grocery shopping are not activities that are easily transferable to a

27 work environment.” Blau v. Astrue, 263 Fed. App’x 635, 637 (9th Cir. 2008). Likewise, the record

28 does not indicate that Plaintiff could—or did—perform any of the activities identified for a substantial

1 part of each day. Thus, Plaintiff’s reported daily activities do not support the adverse credibility

2 decision. See Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (limited activities did not constitute

3 convincing evidence that the claimant could function regularly in a work setting).

4 B. Remand is Appropriate

5 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to

6 order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel,

7 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative

8 agency determination, the proper course is to remand to the agency for additional investigation or

9 explanation. Moisa, 367 F.3d at 886 (citing INS v. Ventura, 537 U.S. 12, 16 (2002)). Generally, an

10 award of benefits is directed when:

11 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence,

(2) there are no outstanding issues that must be resolved before a determination of

12 disability can be made, and (3) it is clear from the record that the ALJ would be required

to find the claimant disabled were such evidence credited.

13

14 Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). In addition, an award of benefits is directed

15 where no useful purpose would be served by further administrative proceedings, or where the record is

16 fully developed. Varney v. Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988).

17 The Ninth Circuit explained that “where the ALJ improperly rejects the claimant’s testimony

18 regarding his limitations, and the claimant would be disabled if his testimony were credited,” the

19 testimony can be credited as true, and remand is not appropriate. Lester, 81 F.3d at 834. However,

20 courts retain flexibility in crediting testimony as true, and a remand for further proceedings regarding

21 the credibility of a claimant is an appropriate remedy. See, e.g., Bunnell, 947 F.2d at 348 (affirming the

22 district court’s order remanding for further proceedings where the ALJ failed to explain with sufficient

23 specificity the basis for rejecting the claimant’s testimony); Byrnes v. Shalala, 60 F.3d 639, 642 (9th

24 Cir. 1995) (remanding the case “for further proceedings evaluating the credibility of [the claimant’s]

25 subjective complaints …”). Consequently, the Court finds a remand for further proceedings and re-

26 evaluation of Plaintiff’s testimony is appropriate.

27 ///

28 ///

1 CONCLUSION AND ORDER

2 As set forth above, the ALJ failed to properly set forth findings “sufficiently specific to allow a

3 reviewing court to conclude the ALJ rejected the claimant’s testimony on permissible grounds.” Moisa

4 v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); see also Thomas, 278 F.3d at 958. Consequently, the

5 Court should not uphold the administrative decision. See Sanchez, 812 F.2d at 510. Because the Court

6 finds remand is appropriate on these grounds it offers no findings on the remaining issues presented in

7 Plaintiff’s opening brief. Accordingly, the Court ORDERS:

8 1. The Commissioner’s motion for summary judgment (Doc. 20) is DENIED;

9 2. The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further

10 proceedings consistent with this decision; and

11 3. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Paula Jean

12 Roberts and against Defendant, Andrew M. Saul, Commissioner of Social Security.

13

14 IT IS SO ORDERED.

15 Dated: August 13, 2019 /s/ Jennifer L. Thurston

16 UNITED STATES MAGISTRATE JUDGE

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