Janet Salazar v. Commissioner of Social Security Administration

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 JANET S., ) NO. ED CV 19-1466-E

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12 Plaintiff, )

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13 v. ) MEMORANDUM OPINION

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14 COMMISSIONER OF SOCIAL SECURITY ) AND ORDER OF REMAND

ADMINISTRATION, )

15 )

Defendant. )

16 ____________________________________)

17

18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

20 judgment are denied, and this matter is remanded for further

21 administrative action consistent with this Opinion.

22

23 PROCEEDINGS

24

25 Plaintiff filed a complaint on August 7, 2019, seeking review of

26 the Commissioner’s denial of benefits. The parties consented to

27 proceed before a United States Magistrate Judge on August 22, 2019.

28 Plaintiff filed a motion for summary judgment on December 6, 2019.

1 Defendant filed a motion for summary judgment on February 5, 2020.

2 The Court has taken the motions under submission without oral

3 argument. See L.R. 7-15; “Order,” filed August 8, 2019.

4

5 BACKGROUND

6

7 Plaintiff, a former loan analyst/processor, asserts disability

8 since May 22, 2015 (when she was 63 years old), based on alleged

9 physical impairments (Administrative Record (“A.R.”) 28-34, 41-42, 45,

10 167, 179). An Administrative Law Judge (“ALJ”) reviewed the record

11 and heard testimony from Plaintiff and a vocational expert (A.R. 13-

12 20, 26-44). Plaintiff testified, inter alia, that she cannot use her

13 hands for more than 20 minutes before experiencing tingling, numbness

14 and pain (A.R. 34-35, 39).1

15

16 The ALJ found that Plaintiff has “severe” degenerative disc

17 disease of the cervical and lumbar spine, osteoarthritis of the knees,

18 peripheral neuropathy and obesity (A.R. 15). However, the ALJ found

19 that Plaintiff retains a residual functional capacity for light work,

20 limited to: (1) occasionally climbing ladders, ropes and scaffolding;

21 (2) frequently climbing ramps and stairs and balancing;

22 (3) occasionally stooping, kneeling, crouching and crawling;

23 (4) frequently using her hands and bilateral upper extremities for

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25

1 The vocational expert testified that: (1) a person

26 limited to using her hands for 20 minutes at a time before

resting them for up to 30 minutes, per Plaintiff’s testimony,

27 would be limited to less than occasional use of the hands; and

(2) a person limited to occasional use of the hands would not be

28

handling, fingering and feeling; and (5) less than occasionally being

2|| exposed to extreme cold and hazards (A.R. 16-20 (rejecting Plaintiff’s

3] allegations of greater limitations)) (emphasis added)). The ALJ

4| deemed Plaintiff capable of performing her past relevant work and, on

that basis, denied disability benefits through December 31, 2017 (the

6|| date last insured) (A.R. 13, 20 (adopting vocational expert testimony

7] at A.R. 41-42)).

8

9 The Appeals Council denied review (A.R. 1-3).

10

11 STANDARD OF REVIEW

12

13 Under 42 U.S.C. section 405(g), this Court reviews the

Administration’s decision to determine if: (1) the Administration’s

15] findings are supported by substantial evidence; and (2) the

Administration used correct legal standards. See Carmickle v.

Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

18] 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971) (citation and quotations omitted); see also Widmark v.

Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

24

25 If the evidence can support either outcome, the court may

26 not substitute its judgment for that of the ALJ. But the

27 Commissioner’s decision cannot be affirmed simply by

28 isolating a specific quantum of supporting evidence.

1 Rather, a court must consider the record as a whole,

2 weighing both evidence that supports and evidence that

3 detracts from the [administrative] conclusion.

4

5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

6 quotations omitted).

7

8 DISCUSSION

9

10 After consideration of the record as a whole, the Court reverses

11 the Administration’s decision in part and remands the matter for

12 further administrative proceedings. As discussed below, the

13 Administration materially erred in evaluating the evidence of record.

14

15 I. Summary of Plaintiff’s Subjective Complaints and the Medical

16 Record.

17

18 Plaintiff testified that she stopped working because she was in

19 too much pain (A.R. 32). Plaintiff said she could not work because

20 her job duties required her to “be on the computer and type” and she

21 cannot use her hands for more than 20 minutes before experiencing

22 tingling, numbness and pain in her fingers due to carpal tunnel

23 syndrome/neuropathy for which surgery had been recommended (A.R. 34-

24 35, 39). Plaintiff also said she could not work because of pain in

25 her neck and associated headaches (A.R. 35, 38). Plaintiff said she

26 experiences neuropathy in her hands and her feet, which requires her

27 to shift positions to help with numbness, tingling and pain (A.R. 38).

28 ///

1 Plaintiff testified that she can drive, make breakfast, do light

2 cleaning (but she employs a housekeeper), do laundry, cook “nothing

3 extensive,” and attend church once a month (A.R. 30, 36-37).

4 Plaintiff said she can lift 10 pounds, sit for 30 minutes at a time,

5 stand for 30 minutes at a time, and walk for not more than 30 minutes

6 at a time (A.R. 37).2

7

8 Treatment records reflect consistent complaints of pain, numbness

9 and tingling in Plaintiff’s hands. In early May, 2015, just before

10 Plaintiff stopped working, Plaintiff complained of numbness in her

11 hands and feet, as well as low back pain (A.R. 271-73). She was

12 assessed with, inter alia, cervical radiculopathy, lumbar spondylosis,

13 lumbar radiculopathy and cervical spine stenosis (A.R. 272). She

14 received a prescription of Tramadol (A.R. 272). Plaintiff reportedly

15 called her doctor on May 26, 2015, requesting an “off work order” for

16 one or two weeks due to numbness and tingling in her legs (A.R. 269-

17 70).

18

19 Plaintiff presented for evaluation of her back and neck pain on

20 May 29, 2015, complaining of chronic neck and back pain with worsening

21 symptoms after prolonged sitting at work, including pain in both legs

22

23 2 In an Exertion Questionnaire dated November 25, 2015,

Plaintiff reported that: (1) she is unable to sit for more than

24 20 minutes at a time due to tingling, numbness, and pain in her

feet; (2) she cannot write for more than a few minutes at a time

25

due to tingling, numbness and pain; and (3) she can walk to the

26 mailbox and sometimes uses a cane when her legs hurt (A.R. 187-

89). In an undated appeal form, Plaintiff reported that she was

27 having greater problems with her right hand, limiting her

capacity to use it for any prolonged or repetitive activity (A.R.

28

1 and in the upper arms, tingling and numbness in the right hand, and

2 numbness in the left leg (A.R. 266). An EMG study from 2011

3 reportedly had shown active right C7 cervical radiculopathy “with

4 signs of ongoing axon loss” (A.R. 266). On examination, she

5 reportedly was obese with a normal gait, tenderness in the lumbar and

6 cervical spine, lower extremity strength of 4/5 and 5/5, upper

7 extremity strength of 4/5, decreased sensation in the right arm and

8 forearm and in both hands, and slightly decreased sensation in the

9 left lateral leg and foot (A.R. 267-68). She was assessed with right

10 C7 radiculopathy and mild degenerative joint disease in the lumbar

11 spine (A.R. 268). She was prescribed physical therapy and Tramadol

12 (A.R. 268).

13

14 In June of 2015, Plaintiff presented for an extension of her “off

15 work order” due to ongoing low back pain not responding to physical

16 therapy (A.R. 261). Later in June, Plaintiff reported the same

17 complaints as at the May 29, 2015 evaluation, with the same reported

18 findings on examination (A.R. 258-60).

19

20 In July of 2015, Plaintiff presented to the emergency room for

21 right side flank pain, which reportedly differed from her chronic back

22 pain (A.R. 242). On examination, she had musculoskeletal and lumbar

23 back pain and tenderness (A.R. 245). She was diagnosed with flank

24 pain and prescribed Norco (A.R. 247).

25

26 Later in July of 2015, Plaintiff followed up with her regular

27 provider, requesting a continued “off work order” because her work

28 required her to sit for a long time, which causes her low back pain

1 and leg numbness (A.R. 241). Plaintiff reportedly was taking Norco

2 and Tramadol (A.R. 241). On examination, she had paraspinal

3 tenderness (A.R. 242). She was diagnosed with lumbosacral radiculitis

4 and was prescribed more Norco (A.R. 242).

5

6 In September of 2015, Plaintiff complained of low back pain with

7 sciatica, neck pain, tingling in her fingers and toes with swelling,

8 and right knee pain (A.R. 237-39). Plaintiff requested a continued

9 “off work order” (A.R. 238). Plaintiff reportedly was attending

10 physical therapy (A.R. 237-38; see also A.R. 252-54, 256-58, 262-65).

11 Plaintiff reportedly was taking Norco and Tramadol (A.R. 238, 240).

12 Plaintiff reportedly did not want to try trigger point injections

13 because she was afraid of possible pain therefrom (A.R. 240). On

14 examination, Plaintiff had musculoskeletal and paraspinal tenderness

15 (A.R. 238). She was assessed with, inter alia, cervical

16 radiculopathy, lumbar radiculopathy, osteoarthritis of the right knee,

17 lumbar myofascial pain syndrome, and peripheral neuropathy/paresthesia

18 (A.R. 238, 240).

19

20 In November of 2015, Plaintiff reported neck pain radiating to

21 her upper extremities, low back pain, bilateral knee pain and

22 tenderness (A.R. 343). On examination, she had musculoskeletal

23 tenderness and tenderness in the paracervical muscles, mid and low

24 back, and knees (A.R. 343). She was not then using an assistive

25 device but was advised to do so because of her observed difficulty in

26 changing from a sitting position to a standing position (A.R. 343).

27 Plaintiff’s Tramadol was continued (A.R. 344).

28 ///

1 On January 21, 2016, Plaintiff’s workers’ compensation claim was

2 denied for lack of medical evidence to support an industrially-related

3 injury (A.R. 364-65). Agreed Medical Examiner and orthopedic surgeon

4 Dr. Peter M. Newton subsequently reviewed the medical record,

5 evaluated Plaintiff and prepared a report dated June 6, 2016 (A.R.

6 464-91). Plaintiff reportedly had been given temporary total

7 disability for six months and then was laid off from work (A.R. 465).

8 Plaintiff reportedly complained of headaches and pain in her neck

9 radiating to the left arm, as well as pain in the low back, knees,

10 hands and feet with numbness and tingling, which she attributed to

11 sitting for prolonged periods (A.R. 465-67). Plaintiff reported

12 numbness from repeated and prolonged typing and also reported that her

13 feet would go numb after 20 minutes of sitting (A.R. 466). Plaintiff

14 then was scheduled to have surgery on her left knee for a torn

15 meniscus (A.R. 466). Plaintiff reportedly then was then taking Norco

16 and Tramadol for her pain (A.R. 470).

17

18 On examination, Plaintiff had reduced range of motion in the

19 cervical, thoracic and lumbar spine with pain, tenderness in her

20 paraspinal and trapezius muscles, neck pain with movement of the

21 shoulders, pain in the left knee when walking on toes and heels and in

22 range of motion testing, and positive Apley’s test on the left side

23 (A.R. 472-82). X-rays showed mild degenerative joint disease of the

24 left knee, and mild diffuse degenerative disc disease of the cervical

25 spine and lumbosacral spine (A.R. 487). Dr. Newton diagnosed:

26 (1) chronic pain (rule out herniated disc) causing intermittent upper

27 extremity radiculopathy; (2) left wrist pain (rule out soft tissue

28 strain versus peripheral neuropathy); (3) chronic low back pain (rule

1 out herniated disc) causing lower extremity radiculopathy; and

2 (4) left knee pain with moderate degenerative joint disease (A.R.

3 487). Dr. Newton referred Plaintiff for MRI studies and

4 electrodiagnostic testing (A.R. 488). For “work status,” Dr. Newton

5 opined that Plaintiff should be limited to lifting 5 pounds, no

6 repetitive or prolonged overhead work, no repetitive bending,

7 stooping, twisting, squatting or standing, and no repetitive forceful

8 gripping or grasping (A.R. 489-90). Dr. Newton stated that Plaintiff

9 would require 10 minutes of rest for every 50 minutes of typing or

10 writing (A.R. 490).

11

12 Subsequent MRI studies showed straightening of the cervical

13 lordosis, multilevel disc bulges from C4-C5 through C6-C7 with

14 bilateral neuroforaminal narrowing, multiple ovoid lesions at L2, L3

15 and S1 which were recommended for further evaluation, and disc bulges

16 at L1-L2, L2-L3 and L4-L5 with neuroforaminal narrowing (A.R. 493-96).

17 EMG/nerve conduction studies showed bilateral polongation of the

18 median motor nerve distal latencies and moderate slowing of the left

19 median sensory velocity across the wrist, absent right median sensory

20 nerve action potential, no abnormalities on EMG testing, and normal

21 electrodiagnostic studies of the lower limbs (A.R. 498-500). Wrist

22 ultrasounds showed “bilateral median nerve moderate fusiform

23 enlargement and thickening (right greater than left)” (A.R. 502).

24

25 Dr. Newton reevaluated Plaintiff and prepared a second report

26 dated September 26, 2016 (A.R. 369-95). Plaintiff had undergone left

27 knee arthroscopy as scheduled in June (A.R. 370; see also A.R. 412-

28 18). Plaintiff reportedly was taking Tramadol (A.R. 370).

1 Examination results were similar to those from Dr. Newton’s first

2 examination. Compare A.R. 472-82 with A.R. 371-80. Dr. Newton

3 diagnosed: (1) chronic neck pain with 1-3 mm disc protrusion;

4 (2) right and left median nerve neuropathy; (3) chronic low back

5 strain with 2-3 mm disc protrusion; and (4) status post left knee

6 arthroscopy with underlying moderate degenerative joint disease (A.R.

7 381). Dr. Newton opined that Plaintiff’s condition was permanent and

8 stationary (A.R. 382). Dr. Newton also opined that Plaintiff would be

9 a candidate for cortisone injections for her wrists and that, if she

10 continued to have significant symptoms, she would be a candidate for

11 bilateral carpal tunnel release surgery (A.R. 386). Dr. Newton

12 assessed the same “work status” as before, and opined that Plaintiff

13 could work with restrictions to performing the following activities

14 for only two to four hours each in an eight hour work day: forward

15 bending, twisting, keyboarding and bilateral hand grasping (A.R. 386).

16 Dr. Newton also opined that Plaintiff could not lift or carry more

17 than five pounds for more than four hours per day (A.R. 386). On

18 March 1, 2017, Plaintiff was awarded permanent disability workers’

19 compensation benefits (A.R. 397-406).

20

21 Plaintiff received treatment from Dr. Rubina Shaheen during

22 January, 2017 - March, 2018 (A.R. 515-41). In April of 2017,

23 Plaintiff complained of left arm and shoulder pain radiating down to

24 her fingers and was assessed with left shoulder impingement and

25 neuralgia (A.R. 534-35). Dr. Shaheen prescribed Soma (A.R. 535). In

26 June of 2017, Plaintiff complained of chronic lower right sided pain

27 radiating to the right leg for which she was taking Tramadol (A.R.

28 528). Plaintiff was diagnosed with sciatica and given a Lidoderm

1] patch (A.R. 529).

2

3 Dr. Shaheen completed a “Medical Assessment of Ability to do

4|| Work-Related Activities,” dated April 5, 2018 (A.R. 460). Dr. Shaheen

5] opined that Plaintiff could: (1) lift and carry 10 pounds;

6] (2) occasionally use her upper extremities; (3) sit, stand and walk

for 30 minutes at one time; and (4) sit for 30 minutes total and stand

8] or walk for 30 minutes total in an eight hour workday (A.R. 460). Dr.

9| Shaheen reported that Plaintiff has “cervical neck stenosis with

compression and neuropathy with pain,” as supported by a cervical MRI

11] and “neurological assessment in documentation” (A.R. 460).

12

13 Non-examining state agency physicians reviewed the record in

December of 2015 and May of 2016 (before Dr. Newton’s comprehensive

evaluations) and found Plaintiff capable of light work with no

16] manipulative limitations (A.R. 45-63). The state agency physicians

17] did not review any other doctors’ opinions. See id.

18

19] IIT. The ALJ Erred in Discounting Plaintiff’s Testimony and Statements

20 Regarding the Severity of Plaintiff’s Symptoms Without Stating

21 Legally Sufficient Reasons for Doing So.

22

23 Where, as here, an ALJ finds that a claimant’s medically

24| determinable impairments reasonably could be expected to cause some

25| degree of the alleged symptoms of which the claimant subjectively

26|| complains, any discounting of the claimant’s complaints must be

27|| supported by “specific, cogent” findings. See Berry v. Astrue, 622

28] F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834

17

1) (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th

Cir. 1996) (indicating that ALJ must state “specific, clear and

3] convincing” reasons to reject a claimant’s testimony where there is no

4| evidence of malingering).* Generalized, conclusory findings do not

5] suffice. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004)

6] (the ALJ’s credibility findings “must be sufficiently specific to

7|| allow a reviewing court to conclude the ALJ rejected the claimant’s

testimony on permissible grounds and did not arbitrarily discredit the

claimant’s testimony”) (internal citations and quotations omitted) ;

10] Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ

11] must “specifically identify the testimony [the ALJ] finds not to be

credible and must explain what evidence undermines the testimony”) ;

Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically

which symptom testimony is not credible and what facts in the record

lead to that conclusion.”); see also Social Security Ruling (“SSR”)

96-7p (explaining how to assess a claimant’s credibility), superseded,

17] ///

18} ///

19} ///

20

21

3 In the absence of an ALJ’s reliance on evidence of

22| “malingering,” most recent Ninth Circuit cases have applied the

“clear and convincing” standard. See, e.g., Leon v. Berryhill,

880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806

F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d

1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775

25 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154,

1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995,

1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000

WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting

27| earlier cases). In the present case, the ALJ’s findings are

insufficient under either standard, so the distinction between

281 the two standards (if any) is academic.

19

1 SSR 16-3p (eff. March 28, 2016).4

2

3 In the present case, the ALJ acknowledged that “there is evidence

4 of some significant degenerative pathology in the cervical and lumbar

5 spines which might be expected to result in some chronic pain and

6 stiffness (though not necessarily in radiculopathy, based on the MRIs

7 and EMG studies)” (A.R. 18). The ALJ also acknowledged that nerve

8 conduction studies “suggested some medial nerve issues” and wrist

9 ultrasounds “suggested ‘thickening’ of the median nerves bilaterally,

10 which might account for . . . reports of recurrent hand sensation

11 problems” (A.R. 18). However, the ALJ discounted Plaintiff’s

12 testimony and statements regarding the severity of her limitations

13 (A.R. 18-19). The ALJ stated three reasons for doing so:

14 (1) Plaintiff’s allegations were “not entirely support[ed]” by the

15 evidence of record because she did not “consistently exhibit”

16 sensation loss in her extremities on examination or “clear evidence of

17 serious dexterity or grip loss on exam” (A.R. 18); (2) with the

18 exception of knee surgery, Plaintiff “required relatively minimal

19 treatment for her symptoms” (A.R. 18); and (3) Plaintiff was able to

20 perform “a fairly good range of normal daily tasks (many household

21 chores were taken care of by a housekeeper), including caring for her

22

23 4 Social Security Rulings (“SSRs”) are binding on the

Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1

24 (9th Cir. 1990). The appropriate analysis under the superseding

SSR is substantially the same as the analysis under the

25

superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7

26 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16-3p “implemented a

change in diction rather than substance”) (citations omitted);

27 see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir.

2017) (suggesting that SSR 16–3p “makes clear what our precedent

28

1] pet, engaging in self-care, leaving her home when necessary, engaging

2| in non-strenuous leisure activity, etc.” (A.R. 18-19).

3

4 With regard to reason (2), a limited course of treatment

sometimes can justify the rejection of a claimant’s testimony, at

6| least where the testimony concerns physical problems. See, e.gq.,

7] Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack of

8] consistent treatment, such as where there was a three to four month

gap in treatment, properly considered in discrediting claimant’s back

pain testimony); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999)

11] (in assessing the credibility of a claimant’s pain testimony, the

Administration properly may consider the claimant’s failure to request

treatment and failure to follow treatment advice) (citing Bunnell v.

Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc)); Matthews v.

15] Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993) (permissible credibility

factors in assessing pain testimony include limited treatment and

17] minimal use of medications); see also Johnson v. Shalala, 60 F.3d

18] 1428, 1434 (9th Cir. 1995) (absence of treatment for back pain during

19] half of the alleged disability period, and evidence of only

“conservative treatment” when the claimant finally sought treatment,

sufficient to discount claimant’s testimony).

22

23 In the present case, however, it is doubtful Plaintiff’s

treatment with narcotic pain medications (Norco and Tramadol) may

25| properly be characterized as “minimal” or “conservative” within the

26|| meaning of Ninth Circuit jurisprudence. See, e.g., Shepard v. Colvin,

2015 WL 9490094, at *7 (E.D. Cal. Dec. 30, 2015) (“[p]rior cases in

28] the Ninth Circuit have found that treatment was conservative when the

1A

1 claimant’s pain was adequately treated with over-the-counter

2 medication and other minimal treatment,” however where record

3 reflected heavy reliance on Tramadol and Oxycodone and other

4 prescriptions for pain, record did not support finding that treatment

5 was “conservative”) (internal citations omitted; citing for comparison

6 Lapeirre-Gutt v. Astrue, 382 Fed. App’x. 662, 664 (9th Cir. 2010)

7 (doubting whether “copious amounts of narcotic pain medication” as

8 well as nerve blocks and trigger point injections was “conservative”

9 treatment)); Childress v. Colvin, 2014 WL 4629593, at *12 (N.D. Cal.

10 Sept. 16, 2014) (“[i]t is not obvious whether the consistent use of

11 [Norco] (for several years) is ‘conservative’ or in conflict with

12 Plaintiff’s pain testimony”); Aguilar v. Colvin, 2014 WL 3557308, at

13 *8 (C.D. Cal. July 18, 2014) (“It would be difficult to fault

14 Plaintiff for overly conservative treatment when he has been

15 prescribed strong narcotic pain medications”); Christie v. Astrue,

16 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (refusing to

17 characterize as “conservative” treatment that included narcotic pain

18 medication and epidural injections); Eicholtz v. Astrue, 2008 WL

19 4642976, at *3 (C.D. Cal. Oct. 20, 2008) (court acknowledged the

20 precept that “[a]n ALJ may discount a claimant’s testimony based on

21 conservative treatment,” but appeared to deem this precept

22 inapplicable because the claimant took Tramadol). As detailed above,

23 Plaintiff regularly sought treatment throughout the alleged disability

24 period, underwent physical therapy and knee surgery and consistently

25 ///

26 ///

27 ///

28 ///

1| was prescribed narcotic pain medication.°® Contrary to the ALJ’s

assertion, Plaintiff’s treatment has not been “minimal” within the

3] meaning of Ninth Circuit jurisprudence.

4

5 With regard to reason (3), inconsistencies between admitted daily

6] activities and claimed incapacity properly may impugn the accuracy of

a claimant’s testimony and statements under certain circumstances.

8| See, e.g., Thune v. Astrue, 499 Fed. App’x 701, 703 (9th Cir. 2012)

(ALJ properly discredited pain allegations as contradicting claimant’s

10] testimony that she gardened, cleaned, cooked, and ran errands) ;

11] Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008)

(claimant’s “normal activities of daily living, including cooking,

house cleaning, doing laundry, and helping her husband in managing

14] finances” provided sufficient explanation for discounting claimant’s

15] testimony). Yet, it is difficult to reconcile Ninth Circuit opinions

discussing when a claimant’s admitted activities may and may not

justify a discounting of the claimant’s testimony and statements.

Compare Stubbs-Danielson v. Astrue with Vertigan v. Halter, 260 F.3d

19] 1044, 1049-50 (9th Cir. 2001) (“the mere fact that a plaintiff has

carried on certain daily activities, such as grocery shopping, driving

21] a car, or limited walking for exercise, does not in any way detract

22

23 ° Defendant appears to suggest as a reason to discount

Plaintiff’s subjective complaints the alleged fact that Plaintiff

testified surgery had been recommended for her wrist/hand pain

25] even though the record assertedly fails to reflect such a

recommendation. The Court may not rely on this reasoning because

26|| the ALJ did not specify this reasoning in discounting Plaintiff's

subjective complaints. See Pinto v. Massanari, 249 F.3d 840, 847

27] (9th Cir. 2001) (the court “cannot affirm the decision of an

agency on a ground that the agency did not invoke in making its

decision”) .

TEA

1) from her credibility as to her overall disability”); see also Diedrich

v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017) (daily activities

3] of cooking, cleaning, vacuuming, washing dishes, shopping and cleaning

4|| a cat’s litter box insufficient to discount the claimant’s subjective

complaints).

6

7 In the present case, Defendant concedes that Plaintiff’s limited

8] daily activities “do not necessarily contradict her subjective

complaints” (Defendant’s Motion, p. 9). The Court agrees.

10] Plaintiff's daily activities cannot properly undermine her subjective

11] complaints. See Revels v. Berryhill, 874 F.3d 648, 667-68 (9th Cir.

12] 2017).

13

14 With regard to reason (1), inconsistencies between a claimant’s

15] subjective complaints and the objective medical evidence can be a

16] factor in discounting a claimant’s subjective complaints, but cannot

17| “form the sole basis.” See Burch v. Barnhart, 400 F.3d at 681;

18] Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). As discussed

19| above, the ALJ’s other two stated reasons for discounting Plaintiff's

subjective complaints are legally infirm. Therefore, the ALJ’s

reliance on any alleged inconsistency between Plaintiff's subjective

22| complaints and the objective medical evidence cannot properly support

the ALJ’s decision.

24

25 Even if the ALJ could rely solely on an alleged inconsistency

26| between Plaintiff’s subjective complaints and the objective medical

27|| evidence, the ALJ’s reasoning would still be insufficient. The ALJ

observed that, although Plaintiff complained of extremity numbness,

17

1 tingling and pain, she had largely normal findings of strength and

2 sensation on examination (A.R. 17-19). The ALJ acknowledged, however,

3 that the results of Plaintiff’s nerve conduction study and wrist

4 ultrasound “might account for” Plaintiff’s reported hand problems

5 (A.R. 18). Further, the medical record includes findings of lumbar

6 and cervical radiculopathy, as well as peripheral neuropathy (which

7 the ALJ found to be a severe impairment) (A.R. 15, 238, 240, 242, 268,

8 382, 487). The cited normal strength and sensory findings on

9 examination are not necessarily inconsistent with Plaintiff’s

10 testimony regarding the problems with her hands she experiences after

11 20 minutes of repetitive use. Thus, Plaintiff’s relevant subjective

12 complaints are not necessarily inconsistent with the objective medical

13 evidence.

14

15 The Court is unable to conclude that the ALJ’s failure to state

16 legally sufficient reasons for discounting Plaintiff’s subjective

17 complaints was harmless. “[A]n ALJ’s error is harmless where it is

18 inconsequential to the ultimate non-disability determination.” Molina

19 v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and

20 quotations omitted). Here, the vocational expert testified that, if

21 someone were limited to occasional use of her hands, she could not

22 perform Plaintiff’s past relevant work (A.R. 43). The vocational

23 expert did not testify whether there are jobs performable by a person

24 as limited as Plaintiff claims to be (A.R. 41-43).

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1] III. Remand for Further Administrative Proceedings is Appropriate.

2

3 Remand is appropriate because the circumstances of this case

4] suggest that further development of the record and further

5] administrative review could remedy the ALJ’s errors. See McLeod v.

6] Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see also INS v. Ventura,

7) 537 U.S. 12, 16 (2002) (upon reversal of an administrative

determination, the proper course is remand for additional agency

9] investigation or explanation, except in rare circumstances); Leon v.

Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017) (reversal with a

11] directive for the immediate calculation of benefits is a “rare and

prophylactic exception to the well-established ordinary remand rule”) ;

Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the

14] district court concludes that further administrative proceedings would

15|| serve no useful purpose, it may not remand with a direction to provide

16] benefits”); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th

Cir. 2014) (remand for further administrative proceedings is the

proper remedy “in all but the rarest cases”); Harman v. Apfel, 211

19] F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000)

20] (remand for further proceedings rather than for the immediate payment

of benefits is appropriate where there are “sufficient unanswered

22| questions in the record”); Connett v. Barnhart, 340 F.3d 871, 876 (9th

Cir. 2003) (“Connett”) (remand is an option where the ALJ fails to

state sufficient reasons for rejecting a claimant’s excess symptom

testimony); but see Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007)

(citing Connett for the proposition that “[w]hen an ALJ’s reasons for

27| rejecting the claimant’s testimony are legally insufficient and it is

clear from the record that the ALJ would be required to determine the

10

1 claimant disabled if he had credited the claimant’s testimony, we

2 remand for a calculation of benefits”) (quotations omitted); see also

3 Brown-Hunter v. Colvin, 806 F.3d 487, 495-96 (9th Cir. 2015)

4 (discussing the narrow circumstances in which a court will order a

5 benefits calculation rather than further proceedings); Ghanim v.

6 Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014) (remanding for further

7 proceedings where the ALJ failed to state sufficient reasons for

8 deeming a claimant’s testimony not credible); Vasquez v. Astrue, 572

9 F.3d 586, 600-01 (9th Cir. 2009) (a court need not “credit as true”

10 improperly rejected claimant testimony where there are outstanding

11 issues that must be resolved before a proper disability determination

12 can be made). There remain significant unanswered questions in the

13 present record.

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1 CONCLUSION

2

3 For all of the foregoing reasons,6 Plaintiff’s and Defendant’s

4 motions for summary judgment are denied and this matter is remanded

5 for further administrative action consistent with this Opinion.

6

7 LET JUDGMENT BE ENTERED ACCORDINGLY.

8

9 DATED: March 9, 2020.

10

/s/

11 CHARLES F. EICK

UNITED STATES MAGISTRATE JUDGE

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6 The Court has not reached any other issue raised by

27 Plaintiff except insofar as to determine that reversal with a

directive for the immediate payment of benefits would not be

28