(SS) Zazueta v. Commissioner of Social Security

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 ROSA INES ZAZUETA, ) Case No.: 1:20-cv-0749 JLT

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12 Plaintiff, ) ORDER GRANTING PLAINTIFF’S REQUEST

) FOR JUDICIAL REVIEW (DOC. 17) AND

13 v. ) REMANDING THE ACTION PURSUANT TO

) SENTENCE FOUR OF 42 U.S.C. § 405(g)

14 KILOLO KIJAKAZI1 )

Acting Commissioner of Social Security, ) ORDER DIRECTING ENTRY OF JUDGMENT IN

15 ) FAVOR OF ROSA INEZ ZAZUETA, AND

Defendant. ) AGAINST DEFENDANT, KILOLO KIJAKAZI,

16 ) ACTING COMMISSIONER OF SOCIAL

) SECURITY

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18 Rosa Ines Zazueta asserts she is entitled to disability benefits, a period of disability, and

19 supplemental security income under Titles II and XVI of the Social Security Act. Plaintiff argues the

20 administrative law judge erred in evaluating her subjective statements. (See generally Doc. 17.) For

21 the reasons set forth below, the matter is REMANDED for further proceedings pursuant to sentence

22 four of 42 U.S.C. § 405(g).

23 BACKGROUND

24 In August 2015, Plaintiff applied for benefits, alleging she came disabled in November 2013

25 due to low back pain, numbness of legs, high blood pressure, arthritis, depression, and anxiety. (Doc.

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1 The action was originally filed against Andrew M. Saul in his capacity as the Commissioner of Social Security.

28 (See Doc. 1 at 1.) The Court has substituted Kilolo Kijakazi, who has since been appointed the Acting Commissioner of

1 11-2 at 79.) The Social Security Administration denied the application at the initial level and upon

2 reconsideration. (See generally id. at 78-137.) Plaintiff requested an administrative hearing and

3 testified before an ALJ on May 17, 2018. (Id. at 22.) She testified at a second hearing on March 5,

4 2019. (Id.) The ALJ found Plaintiff was not disabled and issued an order denying benefits on March

5 20, 2019. (Id. at 22-33.) Plaintiff requested review of the decision by the Appeals Council, which

6 denied the request on March 31, 2020. (Id. at 6-8.) Therefore, the ALJ’s determination became the

7 final decision of the Commissioner of Social Security.

8 STANDARD OF REVIEW

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

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

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

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

13 ALJ’s determination that the claimant is not disabled must be upheld by the Court if the proper legal

14 standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of

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

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

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

18 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole

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

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

21 DISABILITY BENEFITS

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

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

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

25 § 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

26 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

27 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

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

hired if he applied for work.

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(a)(4), 416.920(a)(4). The process

8 requires the ALJ to determine whether Plaintiff (1) is engaged substantial gainful activity, (2) had

9 medically determinable severe impairments (3) that met or equaled one of the listed impairments set

10 forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional

11 capacity to perform to past relevant work or (5) the ability to perform other work existing in significant

12 numbers at the state and national level. Id. The ALJ must consider testimonial and objective medical

13 evidence. 20 C.F.R. §§ 404.1527, 416.927.

14 Pursuant to this five-step process, the ALJ determined Plaintiff did not engage in substantial

15 gainful activity after the alleged onset date of November 1, 2013. (Doc. 11-2 at 25.) Second, the ALJ

16 found “[t]he claimant has the following severe impairments: Kienbock’s disease of the right wrist;

17 degenerative disc disease of the lumbar spine; rheumatoid arthritis; and degenerative joint disease of

18 the right knee.” (Id.) At step three, the ALJ determined Plaintiff’s impairments did not meet or

19 medically equal a Listing. (Id. at 26-27.) Next, the ALJ found:

20 [T]he claimant has the residual functional capacity to perform light work as defined

in 20 CFR 404.1567(b) and 416.967(b), including lifting up to 20 pounds

21 occasionally and ten pounds frequently, standing and/or walking up to four hours in

an eight-hour workday, and sitting up to six hours in an eight-hour workday, with the

22 following restrictions: she can frequently push/pull with the right upper extremity;

she can occasionally walk on uneven terrain and climb ladders/ropes/scaffolds; she

23 can occasionally handle and finger with the right upper extremity; she can

occasionally crouch, stoop, crawl, and kneel; she can occasionally have exposure to

24 unprotected heights, moving machinery, and driving.

25 (Id. at 27.) With this residual functional capacity, the ALJ determined at step four that Plaintiff was

26 “unable to perform any past relevant work.” (Id. at 31.) However, ALJ found Plaintiff “acquired

27 work skills from [her] past relevant work” and these skills were “transferable to other occupations with

28 jobs existing in significant numbers in the national economy,” such as an information clerk. (Id. at

1 32.) Therefore, the ALJ concluded Plaintiff was not disabled as defined by the Social Security Act

2 from November 1, 2013, through the date of the decision. (Id. at 33.)

3 DISCUSSION AND ANALYSIS

4 Plaintiff argues the ALJ erred in evaluating her statements concerning the severity of her

5 symptoms and “impermissibly rejected” her testimony. (Doc. 17 at 6-16.) The Commissioner asserts

6 the ALJ properly evaluated the testimony and found it “inconsistent with the objective and other

7 evidence.” (Doc. 18 at 4, emphasis omitted.) Thus, the Commissioner argues the “final decision is

8 supported by substantial evidence and is in accordance with the law.” (Id. at 11.)

9 A. Plaintiff’s Subjective Statements

10 1. Function report

11 On December 9, 2015, Plaintiff submitted a function report. (Doc. 11-2 at 301-309.) Plaintiff

12 indicated she could not “do a lot of things” due to pain. (Id. at 301.) Plaintiff said she could not lift and

13 carry heavy items, squat, bend, stand, or climb. (Id. at 306.) She said her impairments and conditions

14 affected her ability to reach, walk, use her hands, and sit. (Id.) She reported difficulty sleeping due to

15 pain and would “take… a while to start functioning” each day. (Id. at 302.) Plaintiff noted she could

16 prepare her own meals and did so “weekly or when [she] can,” but she was “unable to do chores.” (Id.)

17 She also reported difficulty with her legs and indicated she would not go out alone because she was

18 “afraid to fall and [had] lots of anxiety.” (Id. at 304.)

19 Plaintiff reported she had depression, which she believed caused her to be less interested in

20 hobbies and engage in “less family activities.” (Doc. 11-2 at 305.) Plaintiff believed her conditions

21 also affected her memory, ability to complete tasks, concentrate, understand, follow instructions, and

22 get along with others. (Id. at 306.) For example, Plaintiff noted she would “forget things” and

23 “need[ed] a reminder to do personal needs.” (Id. at 303.) She also reported she “was not able to

24 handle” stress and did not handle changes in routine well. (Id. at 307.)

25 2. May 2018 hearing testimony

26 Plaintiff testified at an administrative hearing on May 17, 2018. (Doc. 11-3 at 62.) She

27 reported she was 44 years old and had a tenth-grade education. (Id. at 65, 69.) Plaintiff said she last

28 worked in 2012 or 2013, at which time she packed cantaloupes in boxes. (Id. at 65.) Plaintiff

1 explained the work was temporary during the cantaloupe season, for about three or four months. (Id.)

2 Plaintiff stated the work required her to stand and lift the boxes once filled. (Id. at 65-66.) She

3 estimated the boxes weighed about 40 pounds once filled. (Id. at 66.)

4 Plaintiff believed she was no longer able to work because she needed “to be sitting up and down

5 every 20 minutes.” (Doc. 11-2 at 69.) She explained she could “sit down for up to 20 minutes,” after

6 which she needed “to get up and walk for like 10, 15 minutes.” (Id.) Plaintiff reported she alternated

7 positions throughout the day while at home. (Id. at 69-70.) In addition, Plaintiff testified she would lie

8 down during the day because medication made her drowsy. (Id. at 70.) She stated that because she

9 could not go up and down the stairs, her nineteen-year-old daughter took care of cooking, cleaning, and

10 washing the clothes. (Id. at 72.)

11 She reported that she continued to have pain following her a spinal fusion surgery, which

12 occurred in 2017. (Doc. 11-2 at 63, 70.) Plaintiff said the surgery did not help, and she continued to

13 experience the same pain. (Id. at 70.) She testified that she took Norco for pain, which “help[ed] a

14 little bit.” (Id. at 73.) She also took medication for anxiety, which she believed “was helping.” (Id.)

15 3. March 2019 hearing testimony

16 Plaintiff testified at a supplemental hearing after appearing for an additional consultative

17 examination. (Doc. 11-2 at 22.) Plaintiff reported her past work history also included work at a

18 beauty school, for which she answered phones and washed towels every hour. (Id. at 47.) She

19 believed she could no longer do that work due to the pain she experienced “all day, morning, day, and

20 night.” (Id. at 49.) Plaintiff stated she also had numbness in her right leg. (Id. at 50.) She said she

21 would “try walking for a few minutes” and then her leg would “start[] numbing.” (Id.) Plaintiff

22 estimated she could sit “about like 15 minutes” before her back started hurting and she needed to move

23 around and walk. (Id. at 51.)

24 Plaintiff reported she stopped working in 2013, when she was doing a job that required

25 carrying pomegranates. (Doc. 11-2 at 51-52.) She stated the pomegranates weighed “more than 50

26 pounds,” and she could not perform the work or “even get up in the car, so that guy didn’t want to take

27 [her] back.” (Id. at 51-52.)

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1 B. Standards for Reviewing a Claimant’s Statements

2 In evaluating a claimant’s statements regarding the severity of her symptoms, an ALJ must

3 determine first whether objective medical evidence shows an underlying impairment “which could

4 reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504

5 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)).

6 Second, if there is no evidence of malingering, the ALJ must make specific findings as to the

7 claimant’s credibility by setting forth clear and convincing reasons for rejecting his subjective

8 complaints. Id. at 1036.

9 If there is objective medical evidence of an impairment, an ALJ may not discredit a claimant’s

10 testimony as to the severity of symptoms merely because it is unsupported by objective medical

11 evidence. See Bunnell v. Sullivan, 947 F.2d 341, 347-48 (9th Cir. 1991). The Ninth Circuit explained:

12 The claimant need not produce objective medical evidence of the [symptom] itself, or

the severity thereof. Nor must the claimant produce objective medical evidence of the

13 causal relationship between the medically determinable impairment and the symptom.

By requiring that the medical impairment “could reasonably be expected to produce”

14 pain or another symptom, the Cotton test requires only that the causal relationship be a

reasonable inference, not a medically proven phenomenon.

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16 Smolen v. Chater 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton, 799

17 F.2d 1403). Further, an ALJ is directed to identify “specific reasons for the weight given to the

18 individual’s symptoms,” in a manner “sufficiently specific to allow a reviewing court to conclude the

19 ALJ rejected the claimant’s testimony on permissible grounds and did not arbitrarily discredit the

20 claimant’s testimony”). Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004)

21 An ALJ may consider additional factors to assess a claimant’s statements including, for

22 example: (1) the claimant’s reputation for truthfulness, (2) inconsistencies in testimony or between

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

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

25 physicians concerning the nature, severity, and effect of the symptoms of reported by a claimant. Fair

26 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th

27 Cir. 2002) (an ALJ may consider a claimant’s reputation for truthfulness, inconsistencies between a

28 claimant’s testimony and conduct, and a claimant’s daily activities).

1 C. The ALJ’s Analysis

2 The ALJ summarized Plaintiff’s statements in the function report and her testimony at the

3 hearings and determined “the claimant’s medically determinable impairments could reasonably be

4 expected to cause the alleged symptoms.” (Doc. 11-2 at 28.) However, the ALJ found Plaintiff’s

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

6 entirely consistent with the medical evidence and other evidence in the record...” (Id.) Following this

7 finding, the AJ stated:

8 The undersigned has considered the various physical examinations and medical

imaging throughout the record that demonstrate some abnormalities regarding the

9 claimant’s lumbar spine; however, the undersigned has additionally noted evidence in

the record that supports a finding that this impairment is not limiting as the claimant has

10 alleged. The record indicates that the claimant had slip and fall incidents around 2007

or 2008 and in 2014 (Exhibits 1F/1, 12F/33). Multiple medical images of the claimant's

11 lumbar spine from 2009 through 2015 reveal moderate degenerative changes (Exhibits

2F/1-2; 6F/1-2, 5; 9F/7; 7F/2-3; 12F/39). At a December 2014 consultative examination

12 with physical and rehabilitation physician Rajeswari Kumar, M.D., Dr. Kumar

observed that the claimant had normal gait but she could not heel and toe walk. Her

13 lumbar spine had tenderness and painful and limited range of motion. Straight leg

raising test was negative in both the sitting and supine positions. The claimant also had

14 reduced sensation in her right leg. (Exhibit 3F/3-5). Physical examination during this

period indicated tenderness yet normal range of motion in the claimant’s back (Exhibit

15 12F/35).

16 More recent MRIs and x-rays of the claimant’s lumbar spine from 2016 through 2018

demonstrate disc protrusion/bulges at L3-L4, L4-L5, and L5-Sl with neural foraminal

17 encroachment and central spinal canal stenosis at L3-L4 and L4-L5. A prominent disc

protrusion at L3-L4 also compressed the left L4 nerve (Exhibits 15F; 22F/l-3; 24F/31-

18 32; 26F/21). In November 2016, orthopedic surgeon Nitin Shah, M.D., referred the

claimant to a spine surgeon (Exhibit 24F/30), and the claimant’s primary care

19 provider referred the claimant to pain management (Exhibit 21F/45). Progress notes

indicate that one spine surgeon refused surgery (Id. at 30), while a second surgeon

20 diagnosed the claimant with sacroiliac (SI) joint instability, assessing that the

degenerative changes in the claimant's lumbar spine did not correlate with her pain

21 (Exhibit 19F/2-3). The claimant underwent right SI joint instability surgery in

September 2017 (Id. at 17), and progress notes following surgery indicate that while

22 the claimant's right hip pain improved significantly, she stated that her back pain

increased (Id. at 15). The claimant underwent an additional consultative examination

23 in October 2018 with physical medicine and rehabilitation physician Jerry Chuang,

M.D. (Exhibit 23F). Dr. Chuang observed that the claimant had an antalgic gait and

24 was unable to toe and heel walk. The claimant had significant tenderness to palpation

and painful flexion in her lumbar spine. Straight leg raising test was positive in the

25 supine and seated positions. Dr. Chuang further noted that the claimant had well

preserved sensation in her upper and lower extremities (Exhibit 23F/3-4).

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In terms of the claimant’s complaints of right wrist and right knee pain, the

27 undersigned finds that clinical findings are inconsistent with the claimant's allegations

of completely disabling functional limitations. At the December 2014 consultative

28 examination, examination of the claimant’s wrists and knees were within normal

limits (Exhibit 3F/3-4). An October 2015 x-ray of the claimant’s right wrist was

1 unremarkable (Exhibit 7F/7), but another MRI from March 2017 revealed diffuse

bone marrow edema that was indicative of early Kienbock’s disease (Exhibit 24F/26).

2 There is limited medical imaging evidence of the claimant’s right knee in the record,

but a July 2018 x-ray showed evidence of moderate sized right knee joint effusion

3 with no evidence of fracture or dislocation (Exhibit 26F/19). At the October 2018

consultative examination, examination of the claimant’s right wrist showed painful

4 but full range of motion, but examination of the claimant's right knee was normal

(Exhibit 23F/3-4).

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Regarding the claimant’s rheumatoid arthritis (RA), the clinical findings similarly fail

6 to support the alleged severity of symptoms and degree of limitation. The claimant’s

lab work shows both positive and negative antinuclear antibody (ANA) tests (see

7 Exhibit 25F/4). Furthermore, while progress notes with the claimant’s primary care

provider indicate that the claimant was seeing a rheumatologist (see Exhibit 25F),

8 rheumatology specific treatment notes are not included in the record. Although the

objective evidence is unclear on the specific symptoms caused by the claimant’s RA,

9 the undersigned has considered this impairment in conjunction with the claimant's

other physical impairments.

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The record also reveals that pain management treatment has been mostly successful in

11 controlling the claimant's musculoskeletal symptoms. For example, progress notes

from 2017 and 2018 note that the claimant reported 80 to 90 percent pain relief from

12 her current medication (see, e.g., Exhibit 17F/2, 3, 4, 7; 26F/23). The claimant’s pain

management doctor, George Perdikis, M.D., also consistently noted that the

13 claimant’s condition was “stable” (Id.). Notably, although the claimant alleged that

she cannot walk for longer than two minutes before needing to rest (Exhibit 3E/2), a

14 review of the record in this case reveals no evidence that a doctor ever prescribed the

claimant a walker or other assistive device. Moreover, the undersigned notes that

15 although the claimant’s back injury allegedly originated from a slip and fall incident

in 2007 or 2008, the claimant continued to work until 2013.

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17 (Doc. 11-2 at 29-30.)

18 Plaintiff argues that the ALJ erred in evaluating her statements concerning the severity of her

19 symptoms, and “did not offer legally sufficient rationale” for rejecting her testimony. (Doc. 17 at 9.)

20 The Commissioner argues the ALJ properly considered the objective medical evidence, the

21 effectiveness of Plaintiff’s “pain management treatment,” her ability to work, and lack of an assistive

22 device for walking. (Doc. 18 at 5-8.)

23 1. Objective medical evidence

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

25 objective medical evidence in the record” can be “specific and substantial reasons that undermine . . .

26 credibility.” Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). While a

27 claimant’s “testimony cannot be rejected on the sole ground that it is not fully corroborated by

28 objective medical evidence, the medical evidence is still a relevant factor in determining the severity of

1 the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001);

2 see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence

3 cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider”).

4 If an ALJ cites the medical evidence to support an adverse credibility determination, it is not

5 sufficient for the ALJ to simply state that the testimony is contradicted by the record. Holohan v.

6 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). Rather, an ALJ must “specifically identify what

7 testimony is credible and what evidence undermines the claimant’s complaints.” Greger v. Barnhart,

8 464 F.3d 968, 972 (9th Cir. 2006); see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) (the ALJ

9 has a burden to “identify what testimony is not credible and what evidence undermines the claimant’s

10 complaints”); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (an ALJ must identify “what

11 evidence suggests the complaints are not credible”).

12 The Ninth Circuit explained that “summariz[ing] the medical evidence supporting [the] RFC

13 determination ... is not the sort of explanation or the kind of ‘specific reasons’ [the Court] must have in

14 order to ... ensure that the claimant’s testimony was not arbitrarily discredited.” See, e.g., Brown-

15 Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). As a result, “the observations an ALJ makes as

16 part of the summary of the medical record are not sufficient to establish clear and convincing reasons

17 for rejecting a Plaintiff’s credibility.” Argueta v. Colvin, 2016 WL 4138577 at *13 (E.D. Cal. Aug. 3,

18 2016). For example, in Brown-Hunter, the claimant argued the ALJ failed to provide clear and

19 convincing reasons for rejecting her symptom testimony. Id., 806 F. 3d at 491. The district court

20 identified inconsistencies in the ALJ’s summary of the medical record that it gave rise to reasonable

21 inferences about Plaintiff’s credibility. Id. On appeal, the Ninth Circuit determined the ALJ failed to

22 identify the testimony she found not credible and did not link that testimony to support the adverse

23 credibility determination. Id. at 493. The Court explained that even if the district court’s analysis was

24 sound, the analysis could not cure the ALJ’s failure. Id. at 494. Likewise, here, the ALJ offered little

25 more than a summary of the medical evidence to support her rejection Plaintiff’s subjective statements.

26 The ALJ summarized the medical evidence related to several of Plaintiff’s impairments,

27 including “abnormalities regarding the claimant’s lumbar spine,” “complaints of right wrist and right

28 knee pain,” and rheumatoid arthritis. (Doc. 11-2 at 29.) However, the ALJ did not link the identified

1 findings to Plaintiff’s statements in her function report or hearing testimony. For example, the ALJ did

2 not identify any evidence that she believed was inconsistent with Plaintiff’s testimony that she needed

3 to alternate positions throughout the day and could only sit for 20 minutes at a time before she needed

4 “to get up and walk for like 10, 15 minutes.” (See id. at 29, 51, 69-70.) The ALJ also did not identify

5 objective medical evidence that undermined or contradicted Plaintiff’s statements concerning difficulty

6 handling stress, changes in routine, and with concentration. (See id. at 29, 307.) Therefore, the ALJ’s

7 summary of the medical record does not support the decision to reject Plaintiff’s subjective statements.

8 See Brown-Hunter, 806 F.3d at 494; see also Coloma v. Comm’r of Soc. Sec., 2018 WL 5794517 at *9

9 (E.D. Cal. Nov. 2, 2018) (finding error where “the ALJ simply cite[d] to medical evidence and the

10 general adequacy of Plaintiff’s functioning, without any link to how they conflict with, or undermine,

11 Plaintiff’s statements”).

12 2. Treatment provided

13 In evaluating a claimant’s statements, the ALJ may consider “the type, dosage, effectiveness,

14 and side effects of any medication.” 20 C.F.R. §§ 404.1529(c), 416.929(c). The treatment a claimant

15 received, especially when conservative, is a legitimate consideration in a credibility finding. Parra v.

16 Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“Evidence of ‘conservative treatment’ is sufficient to

17 discount a claimant’s testimony regarding severity of an impairment”). Importantly, “the fact that

18 treatment may be routine or conservative is not a basis for finding subjective symptom testimony

19 unreliable absent discussion of the additional, more aggressive treatment options the ALJ believes are

20 available.” Block v. Berryhill, 2018 WL 1567814 at *5 (E.D. Cal. Mar. 31, 2018), quoting Moon v.

21 Colvin, 139 F. Supp. 3d 1211, 1220 (D. Or. 2015).

22 The ALJ opined Plaintiff’s “treatment has been mostly successful in controlling the claimant’s

23 musculoskeletal symptoms.” (Doc. 11-2 at 30.) In support of this conclusion, the ALJ observed that

24 “progress notes from 2017 and 2018 reported 80 to 90 percent pain relief from her current medication.”

25 (Id., citing Exh. 17F p. 2, 3, 4, 7; Exh. 26F, p. 232 [Doc. 11-2 at 628-630, 633, 889].) Furthermore, the

26 ALJ found “no evidence that a doctor ever prescribed the claimant a walker or other assistive device.”

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28 2 It appears this citation included a typographical error, because page 23 of Exhibit 26F is an imaging request.

1 (Id.)

2 Notably, Plaintiff had a spinal fusion surgery during the relevant period, and such procedure

3 cannot be classified as conservative care. See Lapeirre-Gutt v. Astrue, 382 Fed. App’x 662, 664 (9th

4 Cir. 2010) (treatment including cervical fusion surgery was not conservative). The ALJ may not

5 discount such a procedure and focus only on the treatment received—and the claimant’s response—

6 following surgery. See Alycia J. v. Saul, 2020 U.S. Dist. LEXIS 8024 at *12 (C.D. Cal. Jan. 16, 2020)

7 (noting “it cannot be ignored” that a claimant had a surgical procedure during the adjudicated period

8 and finding error where “the ALJ attempted to discount Plaintiff’s spinal fusion by focusing, instead, on

9 the treatment she received after her surgery” to reject her subjective complaints). Consequently, to the

10 extent the ALJ attempts to reject Plaintiff’s statements by relying only on the treatment received and its

11 effectiveness after her surgery in 2017, the ALJ erred in her evaluation.

12 In addition, “it is not enough for the ALJ to show that the [claimant’s] pain was responsive to

13 treatment; the ALJ must show that the pain was ‘controlled,’… i.e., no longer debilitating.” See, e.g.,

14 Lopez v. Colvin, 194 F.Supp.3d 903 911 (D. Az. 2016). For example, an “ALJ impermissibly

15 discounted [the] plaintiff’s testimony based on effective treatment” where the claimant reported an

16 increase in functioning, but his “pain management required daily narcotics,” and he continued to

17 experience symptoms. Travis H. v. Comm’r SSA, 2021 WL 2258403 at *6 (D. Or. June 3, 2021).

18 Likewise, here, the records cited by the ALJ indicate that though Plaintiff reported improvement in her

19 level of pain following the spinal fusion surgery, Dr. Perdickis found Plaintiff continued to have a

20 “limited” range of motion, positive straight leg raise tests, and muscle spasms. (See Doc. 11-2 at 628-

21 630.) Thus, these records cited by the ALJ do not support the rejection of Plaintiff’s statements

22 concerning the severity of her symptoms, including the limited ability to sit and stand and one time, and

23 her need to alternate positions throughout the day.

24 Finally, the ALJ notes that in the function report completed in December 2015, Plaintiff

25 reported that “she cannot walk for longer than two minutes before needing to rest,” but no doctor

26 “prescribed the claimant a walker or other assistive device.” (Doc. 11-2 at 30.) However, the ALJ did

27 not cite any medical evidence that an assistive device was an appropriate treatment for Plaintiff’s

28 impairments—which the ALJ acknowledged also included Kienbock’s disease of the right wrist and

1 rheumatoid arthritis—either before or after the surgical procedure in 2017. Without such information,

2 an ALJ errs in rejecting a claimant’s statements based upon the nature of the treatment provided. See

3 Calleres v. Comm’r of Soc. Sec., 2020 WL 4042904 at *5 (E.D. Cal. July 17, 2020); Candice C. v. Saul,

4 2019 WL 5865610 at *4 (C.D. Cal. Nov. 8, 2019) (an ALJ errs in rejecting subjective complaints based

5 upon the treatment provided where she fails “to explain … what more aggressive treatment was

6 available and appropriate for Plaintiff”).

7 3. Stability of condition

8 The ALJ noted that Dr. Perdikis, Plaintiff’s pain management physician, “consistently noted

9 that the claimant’s condition was ‘stable.’” (Doc. 11-2 at 30, citing Exh. 17F p. 2, 3, 4, 7; Exh. 26F, p.

10 23 [Doc. 11-2 at 628-630, 633, 889].) However, the ALJ appears to erroneously equate Plaintiff’s

11 stability with functionality. See Richardson v. Astrue, 2011 U.S. Dist. LEXIS 132843 at *18-19, 172

12 Soc. Sec. Rep. Service 69 (C.D. Cal. Nov. 17, 2011). For example, in Richardson, the court observed:

13 ALJ Steverson appears to improperly equate stability with functionality. [Citation.]

While plaintiff's treating doctors note that plaintiff’s lupus is stable, both doctors

14 indicate that plaintiff has an active disease which requires aggressive medications.

Significantly, Dr. Levy opined that, “because of [plaintiffs] continued fatigue, joint

15 aches[,] and medication regime[,] regular activities of daily living are quite difficult

[for plaintiff].” [Citation.] Similarly, Dr. Starr opined that plaintiff “cannot do any

16 work that requires lifting or standing for long period of time” and “may also be

limited by her arthritis.” [Citation.] In other words, notwithstanding the stability of

17 plaintiff’s lupus, plaintiff’s doctors opine that plaintiff will have functional limitations

as a result of her lupus, medication regimen, and, possibly, her arthritis.

18

19 Id., 2011 U.S. Dist. LEXIS 132843 at *18-19.

20 Similarly, Dr. Perdikis indicated Plaintiff was treated with both opioid and non-opioid

21 medications. (See Doc. 11-2 at 628, 629, 630, 633, 889.) Dr. Perdikis also noted Plaintiff suffered

22 from pain in her lower extremities, right hand, hip, and low back; muscle spasms; tenderness to

23 palpation; and had a limited range of motion. (See Doc. 11-2 at 628, 629, 630, 633, 889.) Although

24 Dr. Perdikis indicated in the records the ALJ cited that Plaintiff’s condition was “stable,” there is no

25 indication that Dr. Perdikis believed the stability of her conditions rendered Plaintiff able to perform

26 work for an eight-hour day. To the contrary, in each of the cited medical reports, Dr. Perdikis also

27 noted that Plaintiff was “disabled.” (See id.) Thus, the ALJ erred by equating the stability of

28 Plaintiff’s condition with her functionality and rejecting her statements on this basis.

1 4. Work history

2 A plaintiff’s prior work history and reasons for job loss are legitimate factors in evaluating

3 credibility. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (“Since symptoms sometimes suggest a greater

4 severity of impairment than can be shown by objective medical evidence alone, we will carefully

5 consider any other information you may submit about your symptoms …. We will consider all of the

6 evidence presented, including information about your prior work record”); Drouin v. Sullivan, 966 F.2d

7 1255, 1258 (9th Cir. 1992) (fact the claimant lost two jobs for reasons other than pain was an

8 appropriate consideration in the credibility analysis); see also Albidrez v. Astrue, 504 F.Supp.2d 814,

9 822 (C.D. Cal. 2007) (“[a]n ALJ may properly consider a claimant’s poor or nonexistent work history

10 in making a negative credibility determination”)

11 The ALJ observed that “although the claimant's back injury allegedly originated from a slip

12 and fall incident in 2007 or 2008, the claimant continued to work until 2013.” (Doc. 11-2 at 30.) The

13 ALJ did not find, however, that Plaintiff had a poor work history prior to her alleged onset date of

14 November 1, 2013. (See id.) In addition, the ALJ failed to acknowledge Plaintiff’s testimony that she

15 stopped working in 2013 when she was unable to meet the physical demands of her work and the

16 employer “didn’t want to take [her] back.” (Id. at 51-52.) It is unclear how Plaintiff’s candor over

17 continuing to work following the initial back injury undermines the credibility of her subjective

18 complaints—namely, that she was no longer able to work due her level of pain.

19 Because the ALJ did not find Plaintiff’s had a poor work history or explain how Plaintiff’s

20 work history undermined her credibility related to the severity of her symptoms during the adjudicated

21 period, this factor does not support the adverse credibility determination. See Lingenfelter v. Astrue,

22 504 F.3d 1028, 1038 (9th Cir. 2007) (a claimant’s work history does not support an adverse credibility

23 determination if the claimant “experience[d] pain and limitations severe enough to preclude him from

24 maintaining substantial gainful employment”).

25 5. Failure to identify the testimony being rejected

26 Finally, the ALJ must identify what testimony from a claimant is not credible. See Burch v.

27 Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). “General findings,” such as the ALJ provided here, “are

28 insufficient.” Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (citations omitted). The Ninth

1 Circuit requires an ALJ to “specifically identify what testimony is credible and what evidence

2 undermines the claimant’s complaints.” Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)

3 (emphasis added); see also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (an ALJ “must state

4 which pain testimony is not credible and what evidence suggests the complaints are not credible”);

5 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (the ALJ must “specifically identify[] what

6 testimony is not credible and what evidence undermines the claimant’s complaints”). Because the ALJ

7 did not carry this burden, the ALJ failed to properly set forth findings “sufficiently specific to allow a

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

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

10 D. Remand is Appropriate

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

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

13 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative

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

15 explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S.

16 12, 16 (2002)). Generally, an award of benefits is directed when:

17 (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

18 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.

19

20 Smolen v, 80 F.3d at 1292. In addition, an award of benefits is directed where no useful purpose would

21 be served by further administrative proceedings, or where the record is fully developed. Varney v.

22 Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988). The Ninth Circuit also explained

23 that “where the ALJ improperly rejects the claimant's testimony regarding his limitations, and the

24 claimant would be disabled if his testimony were credited,” the testimony may be credited as true, and

25 remand is not appropriate. Lester, 81 F.3d at 834; Smolen, 80 F.3d at 1292.

26 However, courts retain flexibility in crediting testimony as true. Connett v. Barnhart, 340 F.3d

27 871, 876 (9th Cir. 2003) (remanding for further determinations where there were insufficient findings

28 as to whether the plaintiff's testimony should be credited as true). A remand for further proceedings

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

2 (affirming a remand for further proceedings where the ALJ failed to explain with sufficient specificity

3 the basis for rejecting the claimant’s testimony); Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995)

4 (remanding the case “for further proceedings evaluating the credibility of [the claimant’s] subjective

5 complaints . . .”). Importantly, although the ALJ failed to properly reject Plaintiff’s credibility using the

6 proper legal standards, it is not clear that Plaintiff would be found to be disabled if her testimony were

7 credited as true. Remand is appropriate for the ALJ to provide sufficient findings concerning Plaintiff’s

8 subjective complaints and the limitations Plaintiff identified in her function report and testimony.

9 CONCLUSION AND ORDER

10 For the reasons set for above, the Court finds the ALJ erred in evaluating the record and

11 Plaintiff’s subjective complaints, and the ALJ’s decision cannot be upheld. See Sanchez, 812 F.2d at

12 510. Accordingly, the Court ORDERS:

13 1. Plaintiff’s request for review of the ALJ’s decision (Doc. 17) is GRANTED.

14 2. The Commissioner’s request that the administrative decision be affirmed (Doc. 18) is

15 DENIED.

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

17 proceedings consistent with this decision; and

18 4. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Rosa Ines

19 Zazueta and against Defendant Kilolo Kijakazi, Acting Commissioner of Social

20 Security.

21

22 IT IS SO ORDERED.

23 Dated: September 23, 2021 _ /s/ Jennifer L. Thurston

24 CHIEF UNITED STATES MAGISTRATE JUDGE

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