# Hector Muro Carrillo v. Nancy A. Berryhill

> District Court, C.D. California · February 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10037149

## Case

- **Court:** District Court, C.D. California
- **Decided:** February 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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HECTOR M. C.,1 Case No. EDCV 19-00944-RAO
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Plaintiff,
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v. MEMORANDUM OPINION AND
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ANDREW M. SAUL,2
15 Commissioner of Social Security,
16 Defendant.
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Plaintiff Hector M.C. (“Plaintiff”) challenges the Commissioner’s denial of his
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application for a period of disability and disability insurance benefits (“DIB”).
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Plaintiff filed his application on July 26, 2012, alleging disability beginning on
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August 10, 2003. (Administrative Record (“AR”) 209, 216.) This matter has been
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1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B)
26 and the recommendation of the Committee on Court Administration and Case
27 Management of the Judicial Conference of the United States.
2 Pursuant to Federal Rule of Civil Procedure 25(d), Andrew M. Saul, the current
28 Commissioner of Social Security, is hereby substituted as the defendant herein.
1 remanded twice (see AR 604, 852) , and a third unfavorable decision was issued by
2 the Commissioner on March 13, 2019 (AR 731-40).
3 Plaintiff raises the following issues for review: (1) whether the ALJ has
4 properly considered the relevant medical evidence of record in assessing Plaintiff’s
5 residual functional capacity (“RFC”); and (2) whether the ALJ has properly
6 considered Plaintiff’s subjective complaints and testimony under oath regarding his
7 impairments, symptoms, and limitations in assessing Plaintiff’s RFC. (Joint
8 Submission (“JS”) 6-7.) For the reasons stated below, the decision of the
9 Commissioner is REVERSED, and the matter is REMANDED.
10 I. The ALJ Failed to Properly Consider Plaintiff’s Subjective Complaints
11 and Testimony
12 Plaintiff contends that the ALJ’s “unfavorable decision of March 13, 2019 . . .
13 is not supported by substantial evidence of record in that the ALJ has failed to
14 properly consider Plaintiff’s subjective statements of record and testimony under
15 oath regarding his impairments, symptoms, and resulting limitations, in assessing
16 Plaintiff’s [RFC].” (JS 15; see JS 15-19.)
17 The Court’s review of the ALJ’s decision discussing Plaintiff’s subjective
18 symptom testimony shows the following. In evaluating Plaintiff’s symptoms, the
19 ALJ began by reciting the relevant and familiar two-step analysis that an ALJ
20 undertakes in assessing a claimant’s testimony regarding the intensity, persistence,
21 and limiting effects. (AR 735.) “First, the ALJ must determine whether the claimant
22 has presented objective medical evidence of an underlying impairment which could
23 reasonably be expected to produce the pain or other symptoms alleged.” Treichler v.
24 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting
25 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)) (internal quotation marks

26 3 Hector M. C. v. Berryhill, Case No. CV 5:16-00957-RAO (C.D. Cal. filed May 10,
27 2016), and Hector M. C. v. Berryhill, No. CV 5:17-01839-RAO (C.D. Cal. filed Sept.
11, 2017). In both prior cases, the Commissioner stipulated to remand to the agency.
28 See Dkt. No. 15, Case No. CV 5:16-00957; Dkt. No. 17, Case No. CV 5:17-01839.
1 omitted). Second, and if the ALJ does not find evidence of malingering, the ALJ
2 must provide specific, clear and convincing reasons for rejecting a claimant’s
3 testimony regarding the severity of his symptoms. Id.
4 The ALJ subsequently summarized Plaintiff’s testimony. (AR 735.) After
5 summarizing Plaintiff’s testimony, the ALJ found Plaintiff’s symptoms were
6 “inconsistent with the medical record.” (Id.) The ALJ offered the following two
7 sentences in support: “While the claimant had objective findings and treatment for
8 CTS and lumbar spine degeneration, treatment appeared to be effective. After
9 injections, surgery, and physical therapy in 2004, and treatment in 2005, there were
10 sparse treatment records.” (Id.)
11 After examining the ALJ’s decision addressing Plaintiff’s symptoms, the
12 Court cannot discern on what ground or grounds the ALJ discounted Plaintiff’s
13 symptom testimony. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)
14 (“ALJ must make a credibility determination with findings sufficiently specific to
15 permit the court to conclude that the ALJ did not arbitrarily discredit claimant's
16 testimony.”) It is well settled that in assessing the credibility of a claimant’s
17 symptom testimony, the ALJ must identify what testimony was found not credible
18 and explain what evidence undermines that testimony. Holohan v. Massanari, 246
19 F.3d 1195, 1208 (9th Cir. 2001). “General findings are insufficient.” Lester v.
20 Chater, 81 F.3d 821, 834 (9th Cir. 1995).
21 The Commissioner argues that the ALJ gave multiple valid reasons for finding
22 Plaintiff’s allegations were inconsistent with the overall evidence of record,
23 “including inconsistency with the medical record, inconsistency with the level of
24 treatment he received, and effectiveness of the treatment.” (JS 19-20.) However, the
25 Commissioner’s arguments represent an attempt to explain what the ALJ may have
26 been thinking, but failed to express in the written decision. See Bray v. Comm’r of
27 Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (“Long-standing principles
28 of administrative law require us to review the ALJ's decision based on the reasoning
1 and factual findings offered by the ALJ—not post hoc rationalizations that attempt to
2 intuit what the adjudicator may have been thinking.”); see also Agsaoay v. Colvin,
3 No. 3:15-CV-02728-GPC-NLS, 2017 WL 1149285, at *8 (S.D. Cal. Mar. 28, 2017)
4 (rejecting Commissioner’s arguments where “no such line of argument or conclusion
5 appears in the ALJ’s decision”). Accordingly, the Court will not consider the
6 Commissioner’s arguments.
7 Because no malingering allegation was made, the ALJ was required to provide
8 specific, clear and convincing reasons for rejecting Plaintiff’s testimony regarding
9 the severity of his symptoms. Treichler, 775 F.3d at 1102. Here, the ALJ failed to
10 provide the level of specificity required to reject or discount Plaintiff’s testimony.
11 The ALJ provided two sentences that fail to explain the ALJ’s reasoning in finding
12 Plaintiff’s testimony was inconsistent with the medical record. (See AR 735.)
13 Moreover, the ALJ does not point to any documents within the Administrative
14 Record in support of his finding. (See id.) Finally, the Court cannot find that such
15 error was harmless “because [the error] precludes [the Court] from conducting a
16 meaningful review of the ALJ’s reasoning.” Brown-Hunter v. Colvin, 806 F.3d 487,
17 489 (9th Cir. 2015); see id. at 492, 494-95. Thus, the ALJ erred in failing to provide
18 sufficiently specific findings for the Court to conclude that the ALJ did not arbitrarily
19 discredit Plaintiff’s testimony. See Thomas, 278 F.3d at 958.
20 In sum, the Court concludes that the ALJ failed to properly consider Plaintiff’s
21 subjective symptom testimony by failing to provide clear and convincing reasons,
22 supported by substantial evidence, for discounting Plaintiff’s testimony. Accordingly,
23 remand is warranted on this issue.
24 II. The Court Declines to Address Plaintiff’s Remaining Argument
25 Having found that remand is warranted, the Court declines to address
26 Plaintiff’s remaining arguments. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir.
27 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to
28 reach [plaintiff’s] alternative ground for remand.”); see also Augustine ex rel.
1 Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court
2 need not address the other claims plaintiff raises, none of which would provide
3 plaintiff with any further relief than granted, and all of which can be addressed on
4 remand.”).
5 III. Remand for Further Administrative Proceedings
6 Plaintiff requests that the Court reverse the ALJ’s decision, and remand for
7 immediate payment of benefits. (JS 23.) Plaintiff contends that the there is “no
8 benefit to further administrative proceedings with the [ALJs] who clearly have no
9 intention of considering his subjective statements and testimony under oath regarding
10 his symptoms and limitations.” (JS 24.) In contesting the ALJ’s evaluation of
11 Plaintiff’s testimony, Plaintiff notes that he “has yet to receive a full and fair hearing
12 with proper consideration of his impairments, including the effects of his symptoms
13 and limitations on his ability to perform and persist at full time work activity.” (JS
14 18.) Additionally, Plaintiff notes that his statements regarding his symptoms and
15 limitations have been consistent and reflect “an individual who is not capable of
16 persisting at full time work activity.” (JS 24.)
17 The Commissioner argues that, if the Court finds in favor of Plaintiff, the Court
18 should remand for “further administrative development.” (JS 24.) The
19 Commissioner also contends that “Plaintiff’s request that this Court grant benefits
20 solely based upon his subjective symptom allegations is expressly contrary to the
21 Social Security Act.” (Id.)
22 “Generally when a court . . . reverses an administrative determination, ‘the
23 proper course, except in rare circumstances, is to remand to the agency for additional
24 investigation or explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir.
25 2004) (quoting INS v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 154 L. Ed. 2d 272
26 (2002) (per curiam)); King v. Berryhill, No. 8:17-CV-00875-GJS, 2018 WL
27 2328217, at *4 (C.D. Cal. May 22, 2018) (“When the Court reverses an ALJ’s
28 decision for error, the Court ordinarily must remand to the agency for further
1 proceedings.” (internal quotations omitted)). When further administrative review
2 could remedy the ALJ’s errors, remand for further administrative proceedings, rather
3 than an award of benefits, is warranted. See Brown-Hunter, 806 F.3d at 495. Before
4 ordering remand for an award of benefits, three requirements must be met: (1) the
5 Court must conclude that the ALJ failed to provide legally sufficient reasons for
6 rejecting evidence; (2) the Court must conclude that the record has been fully
7 developed and further administrative proceedings would serve no useful purpose; and
8 (3) the Court must conclude that if the improperly discredited evidence were credited
9 as true, the ALJ would be required to find the claimant disabled on remand. Id.
10 (citations omitted). Even if all three requirements are met, the Court retains
11 flexibility to remand for further proceedings “when the record as a whole creates
12 serious doubt as to whether the claimant is, in fact, disabled within the meaning of
13 the Social Security Act.” Id. (citation omitted).
14 The Court finds that the ALJ failed to provide clear and convincing reasons
15 supported by substantial evidence to discount Plaintiff’s subjective testimony. See
16 supra Section I. However, the Court cannot conclude that the record has been fully
17 developed and that further administrative proceedings would not serve a useful
18 purpose.
19 When “the record raises crucial questions as to the extent of [a claimant’s]
20 impairment given inconsistencies between his testimony and the medical evidence in
21 the record,” the Court cannot conclude that the record has been fully developed and
22 that further administrative proceedings would serve no useful purpose because
23 “[t]hese are exactly the sort of issues that should be remanded to the agency for
24 further proceedings.” Brown-Hunter, 806 F.3d at 495 (quoting Treichler, 775 F.3d
25 at 1105) (alteration in original). The Court is required to determine whether “there
26 are outstanding issues requiring resolution before considering whether to hold that
27 the claimant’s testimony is credible as a matter of law.” Id. (quoting Treichler, 775
28 F.3d at 1105) (emphasis in original). Because “[t]he touchstone for an award of
1 benefits is the existence of a disability, not the agency’s legal error,” the Court is not
2 required to credit Plaintiff’s testimony as true solely because the ALJ erred in
3 discounting Plaintiff’s testimony. Id.
4 ///
5 Here, the Court finds that the record raises crucial questions as to the extent of
6 Plaintiff’s impairments due to inconsistencies between his testimony and the medical
7 evidence in the record. For example, Plaintiff testified that he could not grab items
8 and hold them with his right hand. (AR 55, 777-78.) Additionally, he explained that
9 his right arm and hand fall “asleep a lot” when he moves it a lot. (AR 56.) He
10 reported having severe pain in his waist, such that he is unable to walk “too much”
11 or sit down for “too long.” (AR 59.) He also reported using a cane to walk. (AR
12 61-62, 781.) However, Bunsri T. Sophon, M.D., completed an orthopedic evaluation
13 on November 18, 2008, approximately five months after Plaintiff’s date last insured,
14 which resulted in findings that are inconsistent with Plaintiff’s testimony. (See AR
15 388-392.) As to Plaintiff’s station and gait, Dr. Sophon found that there was no
16 evidence of tilt or list and that Plaintiff sat comfortably during the examination. (AR
17 389-90.) Additionally, Plaintiff had no difficulty rising from his chair, presented
18 with a normal gait, and did not use an assistive device to ambulate. (Id.) Plaintiff’s
19 range of motion of his upper and lower extremities was normal. (AR 390-91.) His
20 cervical spine revealed normal curvature and full range of motion. (AR 390.)
21 Plaintiff’s thoracic and lumbar spine examination showed no evidence of tenderness
22 or muscle spasm. (Id.) While the ALJ would not be able to rely solely on Dr.
23 Sophon’s findings to reject Plaintiff’s testimony, the conflict between Dr. Sophon’s
24 findings and Plaintiff’s testimony “create a significant factual conflict in the record
25 that should be resolved through further proceedings on an open record before a proper
26 disability determination can be made by the ALJ in the first instance.” Brown-
27 Hunter, 806 F.3d at 496. Accordingly, the Court finds that it would not be
28 appropriate to remand this matter for an immediate award of benefits.
1 The Ninth Circuit has expanded the circumstances under which the credit-as-
2 true rule can be applied to include situations in which there may be outstanding issues
3 to be resolved. See Vasquez v. Astrue, 572 F.3d 586, 593-94 (9th Cir. 2009) (“[T]here
4 are other factors which may justify application of the credit-as-true rule, even where
5 application of the rule would not result in the immediate payment of benefits.”) The
6 “purpose of the credit-as-true rule is meant to discourage the ALJs from reaching a
7 conclusion about a claimant’s status first, and then attempting to justify it by ignoring
8 any evidence in the record that suggests an opposite result.” Id. at 594 (citing
9 Hammock v. Bowen, 879 F.2d 498, 503 (9th Cir. 1989)). Additionally, the rule is
10 meant to “ensure[s] that pain testimony is carefully assessed, and helps prevent
11 unnecessary duplication in the administrative process.” Id.; Baltazar v. Berryhill,
12 No. CV 16-8132-E, 2017 WL 2369363, at *7 (C.D. Cal. May 31, 2017).
13 In Vasquez, the Ninth Circuit found that based on the claimant’s advanced age
14 and the severe delay in obtaining a resolution it was appropriate to apply the credit-
15 as-true rule. 572 F.3d at 593-94. There the claimant was 58 years old and her claim
16 had been pending for approximately seven years. Id.; see also Hammock, 879 F.2d
17 at 500, 503 (finding that due to claimant’s age, 57 years old at the time of hearing,
18 and the fact that her claim had been pending at least eight years the ALJ must credit
19 her testimony as true on remand); Sanchez v. Berryhill, No. EDCV 16-1774-FMO-
20 MRW, 2018 WL 4694349, at *9 (C.D. Cal. July 19, 2018) (ordering the ALJ to credit
21 as true where claimant was 52 years old and his claim was pending for six years).
22 Here, the Court recognizes that there has been a severe delay in obtaining a
23 resolution. Plaintiff filed his application more than seven years ago on July 26, 2012.
24 (AR 209, 216.) This delay falls squarely within the Ninth Circuit’s precedent.
25 However, unlike the claimants in Vasquez and Hammock, Plaintiff does not fall
26 within the advanced age category. The advanced age category consists of people
27 who are 55 years or older. Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068,
28 1069 (9th Cir. 2010) (“Social security regulations divide claimants into three age
1 categories: younger persons (those persons under age 50), persons closely
2 approaching advanced age (those persons age 50–54), and persons of advanced age
3 (those persons age 55 or older).”) (citing 20 C.F.R. § 404.1563(c)–(e)). Plaintiff was
4 33 years old on his date last insured, 38 at the time of his first hearing, and 43 at the
5 time of his second hearing. (See AR 47-77, 78, 748-92.) Because, Plaintiff does not
6 fall within the advanced age category, Vasquez and Hammock are inapplicable. See
7 572 F.3d at 593-94; 879 F.2d at 500, 503; but see New ex rel. JNJ v. Colvin, 31 F.
8 Supp. 3d 1120, 1129 (E.D. Wash. 2014) (“Claimant’s young age and delay of more
9 than six years from the date of the application make it appropriate for this Court to
10 use its discretion and apply the ‘credit as true’ doctrine pursuant to Ninth Circuit
11 precedent.”).
12 While the Court gives significant consideration to the fact that Plaintiff’s claim
13 has been pending for more than seven years and that the matter has been remanded
14 twice, it is unclear that these facts taken together, or on their own, require this Court
15 to instruct the ALJ to credit Plaintiff’s testimony as true on remand. While the seven-
16 year delay is severe, the effect of the delay is not compounded by Plaintiff’s age. As
17 to the multiple remands, the Court is “mindful of the often painfully slow process by
18 which disability determinations are made, and that a remand for further evidentiary
19 proceedings (and the possibility of further appeal) could result in substantial,
20 additional delay.” Giddings v. Astrue, 333 F. App’x 649, 655 (2d Cir. 2009).
21 However, the Court does not find, and Plaintiff does not point to, a rule requiring that
22 evidence be credited as true after multiple remands. Moreover, courts have found
23 remand for further proceedings to be appropriate, notwithstanding the fact that the
24 matter had been previously remanded twice. See Francia v. Astrue, No. CV 09-
25 07519-MAN, 2010 WL 4553438, at *10 & n. 15 (C.D. Cal. Nov. 3, 2010) (finding
26 “remand is the appropriate remedy to allow the ALJ the opportunity to remedy the .
27 . . deficiencies and errors,” where the court was remanding for a third time).
28 ///
1 Because the record as a whole, for the reasons discussed above, creates serious
2 || doubt as to whether the Plaintiff is, in fact, disabled within the meaning of the Social
3 || Security Act, the Court exercises its discretion and remands for further proceedings.
4 || See Brown-Hunter, 806 F.3d at 495.
5 On remand, the ALJ shall reassess Plaintiff’s testimony regarding his
6 || Symptoms and limitations, and either credit his testimony as true, or provide specific,
7 || clear and convincing reasons, supported by substantial evidence in the case record,
g || for discounting or rejecting any testimony. Next, based on the reevaluation of
9 || Plaintiff's subjective symptom testimony, and considered in light of the medical
10 || evidence of record, the ALJ shall reassess Plaintiffs RFC. Finally, the ALJ shall
11 || proceed through step four and, if warranted, step five to determine, whether Plaintiff
12 || can perform his past relevant work or any other work existing in significant numbers
13 || in the regional and national economies.
14 Because the matter is now being remanded for a third time, “the Court directs
15 || that this matter be dealt with in an expeditious manner to avoid unnecessary delay
16 || and further potential prejudice to [P]laintiff.”” Francia, 2010 WL 4553438, at *10.
17 | IV. CONCLUSION
18 IT IS ORDERED that Judgment shall be entered REVERSING the decision of
19 || the Commissioner denying benefits and REMANDING the matter for further
29 || proceedings consistent with this Order.
71 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this
92 || Order and the Judgment on counsel for both parties. .
93 || DATED: February 28, 2020 Rayehin a,

ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE
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26 NOTICE
97 || THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,
LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.
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