“[A] claimant's failure to assert a good reason for not 7 || seeking treatment, ‘or a finding by the ALJ that the proffered reason is not 8 || believable, can cast doubt on the sincerity of the claimant's pain testimony.””
How later courts described this case
- “[A] claimant's failure to assert a good reason for not 7 || seeking treatment, ‘or a finding by the ALJ that the proffered reason is not 8 || believable, can cast doubt on the sincerity of the claimant's pain testimony.””
- “Our case law is clear that if a claimant 25 complains about disabling pain but fails to seek treatment, or fails to follow 26 prescribed treatment, for the pain, an ALJ may use such failure as a basis for 27 finding the complaint unjustified or exaggerated.”
- “[B]enefits may not be denied to a disabled claimant 4 || because of a failure to obtain treatment that the claimant cannot afford.’’
- discussing weight and function of Social Security 19 | rulings
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11 HENRY P.,1 Case No. 2:19-cv–05471-JC
12 Plaintiff,
MEMORANDUM OPINION AND
13 v. ORDER OF REMAND
14
ANDREW SAUL, Commissioner of
15 Social Security Administration,
16 Defendant.
17
I. SUMMARY
18
On June 24, 2019, plaintiff filed a Complaint seeking review of the
19
Commissioner of Social Security’s denial of his application for benefits. The
20
parties have consented to proceed before the undersigned United States Magistrate
21
Judge.
22
This matter is before the Court on the parties’ cross motions for summary
23
judgment, respectively “Plaintiff’s Motion” and “Defendant’s Motion.”
24
(collectively, “Motions”). The Court has taken the Motions under submission
25
26
27 1Plaintiff’s name is partially redacted to protect his privacy in compliance with Federal
Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
28 Administration and Case Management of the Judicial Conference of the United States.
1
1 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; Case Management
2 Order ¶ 5.
3 Based on the record as a whole and the applicable law, the decision of the
4 Commissioner is REVERSED AND REMANDED for further proceedings
5 consistent with this Memorandum Opinion and Order of Remand.
6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE
7 DECISION
8 On April 7, 2016, plaintiff filed an application for Disability Insurance
9 Benefits, alleging disability beginning on September 1, 2012, due to knee injury,
10 gout, back pain, anxiety and depression. (Administrative Record (“AR”) 268-71,
11 287). An Administrate Law Judge (“ALJ”) subsequently examined the medical
12 record and heard testimony from plaintiff (who was represented by counsel) and a
13 vocational expert. (AR 145-71). On May 24, 2018, the ALJ determined that
14 plaintiff was not disabled through March 31, 2016, the date last insured. (AR 16-
15 32). Specifically, the ALJ found: (1) plaintiff suffered from the following severe
16 impairments: left knee chronic patella dislocation, osteoarthritis and degenerative
17 joint disease/status post reconstructive surgery, and obesity (AR 21); (2) plaintiff’s
18 impairments, considered individually or in combination, did not meet or medically
19 equal a listed impairment (AR 23); (3) plaintiff retained the residual functional
20 capacity to perform sedentary work (20 C.F.R. §§ 404.1567(a)) with additional
21 limitations2 (AR 23); (4) plaintiff could not perform any past relevant work (AR
22 27); (5) there are jobs that exist in significant numbers in the national economy
23 that plaintiff could perform, specifically document preparer, lens inserter, and
24
25 2The ALJ determined that plaintiff also: (i) could lift, carry, push and pull twenty pounds
occasionally, ten pounds frequently; (ii) could stand and/or walk two hours in an eight-hour day;
26
(iii) could sit for six hours in an eight-hour day; (iv) could never climb ladders, ropes or
27 scaffolds; (v) could occasionally climb ramps and stairs; (vi) could occasionally balance and
stoop; (vii) could never kneel, crouch or crawl; (vii) could not be exposed to extreme cold; and
28 (viii) required a cane for ambulation. (AR 23).
2
1 bench assembler (AR 28-29); and (6) plaintiff’s statements regarding the intensity,
2 persistence, and limiting effects of subjective symptoms were not entirely
3 consistent with the medical evidence and other evidence in the record. (AR 24)
4 On May 7, 2019, the Appeals Council denied plaintiff’s application for
5 review. (AR 1-3).
6 III. APPLICABLE LEGAL STANDARDS
7 A. Administrative Evaluation of Disability Claims
8 To qualify for disability benefits, a claimant must show that he is unable “to
9 engage in any substantial gainful activity by reason of any medically determinable
10 physical or mental impairment which can be expected to result in death or which
11 has lasted or can be expected to last for a continuous period of not less than 12
12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting
13 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted); 20 C.F.R.
14 §§ 404.1505(a), 416.905. To be considered disabled, a claimant must have an
15 impairment of such severity that he is incapable of performing work the claimant
16 previously performed (“past relevant work”) as well as any other “work which
17 exists in the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
18 1999) (citing 42 U.S.C. § 423(d)).
19 To assess whether a claimant is disabled, an ALJ is required to use the five-
20 step sequential evaluation process set forth in Social Security regulations. See
21 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)
22 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520,
23 416.920). The claimant has the burden of proof at steps one through four – i.e.,
24 determination of whether the claimant was engaging in substantial gainful activity
25 (step 1), has a sufficiently severe impairment (step 2), has an impairment or
26 combination of impairments that meets or medically equals one of the conditions
27 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and
28 retains the residual functional capacity to perform past relevant work (step 4).
3
1 || Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The
2 || Commissioner has the burden of proof at step five — i.e., establishing that the
3 || claimant could perform other work in the national economy. Id.
4 B. Federal Court Review of Social Security Disability Decisions
5 A federal court may set aside a denial of benefits only when the
6 || Commissioner’s “final decision” was “based on legal error or not supported by
7 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
8 | F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The
9 || standard of review in disability cases is “highly deferential.” Rounds v. Comm’r
10 || of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation
11 | marks omitted). Thus, an ALJ’s decision must be upheld if the evidence could
12 || reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at
13 || 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must
14 || be affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec.
15 | Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if
16 || (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path
17 || may reasonably be discerned despite the error) (citation and quotation marks
18 || omitted).
19 Substantial evidence is “such relevant evidence as a reasonable mind might
20 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining
21 || “substantial evidence” as “more than a mere scintilla, but less than a
22 || preponderance’”’) (citation and quotation marks omitted). When determining
23 || whether substantial evidence supports an ALJ’s finding, a court “must consider the
24 || entire record as a whole, weighing both the evidence that supports and the
25 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v.
26 || Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).
27 Federal courts review only the reasoning the ALJ provided, and may not
28 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”
1 Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need
2 not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s
3 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,
4 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).
5 A reviewing court may not conclude that an error was harmless based on
6 independent findings gleaned from the administrative record. Brown-Hunter, 806
7 F.3d at 492 (citations omitted). When a reviewing court cannot confidently
8 conclude that an error was harmless, a remand for additional investigation or
9 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173
10 (9th Cir. 2015) (citations omitted).
11 IV. DISCUSSION
12 Plaintiff’s sole contention is that the ALJ erred by failing to provide specific
13 and convincing reasons to discredit plaintiff’s statements and testimony.
14 (Plaintiff’s Motion at 5-8). Defendant argues that the ALJ’s reasons are proper
15 and sufficient. (Defendant’s Motion at 1-4).
16 For the reasons stated below, the Court finds that the ALJ erred in
17 discounting plaintiff’s testimony based on a failure to comply with recommended
18 treatment. Since the Court cannot find that the error was harmless, a remand is
19 warranted.
20 A. Pertinent Law
21 When determining disability, an ALJ is required to consider a claimant’s
22 impairment-related pain and other subjective symptoms at each step of the
23 sequential evaluation process. 20 C.F.R. §§ 404.1529(a), (d). Accordingly, when
24 a claimant presents “objective medical evidence of an underlying impairment
25 which might reasonably produce the pain or other symptoms [the claimant]
26 alleged,” the ALJ is required to determine the extent to which the claimant’s
27 statements regarding the intensity, persistence, and limiting effects of his or her
28 subjective symptoms (“subjective statements” or “subjective complaints”) are
5
1 || consistent with the record evidence as a whole and, consequently, whether any of
2 || the individual’s symptom-related functional limitations and restrictions are likely
3 || to reduce the claimant’s capacity to perform work-related activities. 20 C.F.R.
4 | §§ 404.1529(a), (c)(4); Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304,
5 || at *4-10.° When an individual’s subjective statements are inconsistent with other
6 || evidence in the record, an ALJ may give less weight to such statements and, in
7 || turn, find that the individual’s symptoms are less likely to reduce the claimant’s
8 || capacity to perform work-related activities. See SSR 16-3p, 2017 WL 5180304, at
9 || *8. In such cases, when there is no affirmative finding of malingering, an ALJ
10 || may “reject” or give less weight to the individual’s subjective statements “‘only by
11 || providing specific, clear, and convincing reasons for doing so.” Brown-Hunter,
12 | 806 F.3d at 488-89.* This requirement is very difficult to satisfy. See Trevizo,
13
14
15 *Social Security Rulings reflect the Social Security Administration’s (“SSA”) official
interpretation of pertinent statutes, regulations, and policies. 20 C.F.R. § 402.35(b)(1). Although
16 || they “do not carry the ‘force of law,’” Social Security Rulings “are binding on all components of
the ... Administration[,]” and are entitled to deference if they are “consistent with the Social
17 Security Act and regulations.” 20 C.F.R. § 402.35(b)(1); Bray v. Comm’r of Soc. Sec. Admin.,
18 || 554 F.3d 1219, 1224 (9th Cir. 2009) (citations and quotation marks omitted); see also Heckler v.
Edwards, 465 U.S. 870, 873 n.3 (1984) (discussing weight and function of Social Security
19 | rulings). Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the
0 term “credibility” from SSA “sub-regulatory policy[]” in order to “clarify that subjective
symptom evaluation is not an examination of an individual’s [overall character or truthfulness] . .
21 || . [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See SSR
16-3p, 2017 WL 5180304, at *1-*2, *10-*11. The SSA subsequently republished SSR 16-3p
22 making no change to the substantive policy interpretation regarding evaluation of a claimant’s
23 || subjective complaints, but clarifying that the SSA would apply SSR 16-3p only “[when making]
determinations and decisions on or after March 28, 2016[,]” and that federal courts should apply
24 || “the rules [regarding subjective symptom evaluation] that were in effect at the time” an ALJ’s
decision being reviewed became final. SSR 16-3p, 2017 WL 5180304, at *1, *13 n.27.
26 “It appears to this Court, based upon its research of the origins of the requirement that
there be “specific, clear and convincing” reasons to reject or give less weight to an individual’s
27 subjective statements absent an affirmative finding of malingering, that such standard of proof
28 remains applicable even when SSR 16-3p governs. See Trevizo, 871 F.3d at 678-79 & n.5
(citations omitted).
1 | 871 F.3d at 678 (‘The clear and convincing standard is the most demanding
2 || required in Social Security cases.”’) (citation and quotation marks omitted).
3 An ALJ’s decision “must contain specific reasons” supported by substantial
4 || evidence in the record for giving less weight to a claimant’s statements. SSR 16-
5 || 3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each subjective
6 || statement being rejected and the particular evidence in the record which
7 || purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation
8 || omitted). Unless there is affirmative evidence of malingering, the Commissioner’s
9 || reasons for rejecting a claimant’s testimony must be “clear and convincing.”
10 || Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (internal quotation marks
11 || omitted), as amended (Apr. 9, 1996). “General findings are insufficient[.]”
12 || Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted).
13 If an ALJ’s evaluation of a claimant’s statements is reasonable and is
14 || supported by substantial evidence, it is not the court’s role to second-guess it. See
15 || Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). When
16 | an ALJ fails properly to discuss a claimant’s subjective complaints, however, the
17 || error may not be considered harmless “unless [the Court] can confidently conclude
18 || that no reasonable ALJ, when fully crediting the testimony, could have reached a
19 || different disability determination.” Stout, 454 F.3d at 1056; see also Brown-
20 || Hunter, 806 F.3d at 492 (ALJ’s erroneous failure to specify reasons for rejecting
21 || claimant testimony “will usually not be harmless’’).
22 B. __ Plaintiff’s Statements and Testimony
23 On a function report dated May 17, 2016, plaintiff wrote the following: He
24 || was “in constant pain” due to nerve and ligament damage, and lost his balance
25 || easily, making it difficult to stand, walk or sit for any length of time. (AR 307-
26 | 09). He could not walk without a cane. (AR 307). Plaintiff did not make his
27 || meals, drive, or do any house or yard work, due to the pain and imbalance, but he
28 || shopped for groceries for about two hours once a week. (AR 309-10). For
1 activities, he read, wrote and watched television. (AR 311). He could only lift
2 one or two pounds, and could walk only ten or eleven feet before needing to rest
3 for at least forty-five minutes. (AR 312).
4 At the hearing on May 3, 2018, plaintiff’s counsel noted that plaintiff has
5 undergone a total of five knee surgeries – four on the left, one on the right. (AR
6 148-49). Plaintiff testified to the following: His left knee first began to bother
7 him seriously around 2013, as a result of wear and tear over time, and his right
8 knee began to hurt around 2016. (AR 157-58). He tried to work in 2016, as a
9 maintenance mechanic at a McDonald’s for about seven or eight days, but “had an
10 accident there where [his] knee buckled and [he] fell,” so could not work anymore.
11 (AR 152). Plaintiff’s knees buckle and swell often when he is standing or sitting,
12 and the pain becomes “excruciating.” (AR 153). Plaintiff had surgery on his right
13 knee in February 2018, to repair a torn meniscus and ruptured ACL or tendon, but
14 his knee still locks. (AR 158-59).
15 Plaintiff further testified: He was first prescribed crutches around 2013
16 (AR 164-65), and the last time he could walk without the assistance of crutches, a
17 cane or a walker was in 2016 (AR 153). He has depended on a cane or walker
18 every day since. (AR 153). He has also fallen numerous times since 2015, despite
19 the use of an assistive device. (AR 165). He generally spends his time reading or
20 watching television. (AR 156). He does not really cook because he “really can’t
21 stand for too long in one place,” though he makes himself a bowl of cereal or an
22 egg sandwich in the morning. (AR 156). Plaintiff needs “to move around” due to
23 the swelling in his knee and legs (AR 156), and can sit for only about ten minutes
24 at a time before changing positions (AR 165-66). He spends over five hours a day
25 lying on his back. (AR 166). His adult sons do the grocery shopping. (AR 166).
26 C. Analysis
27 The ALJ reviewed plaintiff’s statements and found that his “medically
28 determinable impairments could reasonably be expected to cause the alleged
8
1 symptoms,” but determined that plaintiff’s “statements concerning the intensity,
2 persistence and limiting effects of these symptoms” were “not entirely consistent
3 with the medical evidence and other evidence in the record for the reasons
4 explained in th[e] decision.” (AR 24). The ALJ discounted plaintiff’s statements
5 based on evidence that plaintiff was non-compliant with some of his treatment and
6 that the severity of his alleged limitations were not supported by the objective
7 medical findings, including evidence that his symptoms showed some
8 improvement after surgery in 2015. (See AR 24-26). Plaintiff contends that these
9 were not legitimate reasons to reject his testimony. (Plaintiff’s Motion at 6-8).
10 As for non-compliance, the ALJ noted that plaintiff “may have contributed
11 to his symptoms by not complying with prescribed treatment.” (AR 25).
12 Specifically, the ALJ found that plaintiff’s medical records indicated that plaintiff
13 had caused a delay in his 2015 knee surgery due to missed appointments, and then
14 failed to follow up with prescribed physical therapy and pain management after
15 the surgery, “despite [plaintiff’s] own reports of symptoms.” (AR 25). Plaintiff
16 contends that non-compliance with treatment was an improper basis here because
17 the ALJ did not seek any explanation for the purported non-compliance.
18 (Plaintiff’s Motion at 7). Defendant argues that the ALJ was not required to seek
19 an explanation. (Defendant’s Motion at 1-2).
20 In discrediting a claimant's subjective symptom testimony, an ALJ may
21 consider, among other grounds, the claimant’s “unexplained or inadequately
22 explained failure to seek treatment or to follow a prescribed course of treatment.”
23 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); see also Orn v. Astrue,
24 495 F.3d 625, 638 (9th Cir. 2007) (“Our case law is clear that if a claimant
25 complains about disabling pain but fails to seek treatment, or fails to follow
26 prescribed treatment, for the pain, an ALJ may use such failure as a basis for
27 finding the complaint unjustified or exaggerated.”) (citing Fair v. Bowen, 885 F.2d
28 597, 603 (9th Cir. 1989)). However, an ALJ cannot discredit testimony on this
9
1 || ground if the claimant credibly provides a good reason for his failure to obtain or
2 || follow treatment. See, e.g., Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001,
3 || 1006 (9th Cir. 2006) (“[B]enefits may not be denied to a disabled claimant
4 || because of a failure to obtain treatment that the claimant cannot afford.’’) (citing
5 || Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995)); see also Molina v. Astrue,
6 || 674 F.3d at 1113-14 (“[A] claimant's failure to assert a good reason for not
7 || seeking treatment, ‘or a finding by the ALJ that the proffered reason is not
8 || believable, can cast doubt on the sincerity of the claimant's pain testimony.””)
9 || (quoting Fair v. Bowen, 885 F.2d at 603). To make an adverse determination on
10 || this issue, therefore, it is crucial that the ALJ consider whether the claimant had a
11 || reason for failing to follow prescribed treatment. As SSR 16-3p provides:
12 [I]f the individual fails to follow prescribed treatment that might
13 improve symptoms, we may find the alleged intensity and persistence
14 of an individual's symptoms are inconsistent with the overall evidence
15 of record. We will not find an individual's symptoms inconsistent with
16 the evidence in the record on this basis without considering possible
17 reasons he or she may not comply with treatment or seek treatment
18 consistent with the degree of his or her complaints. We may need to
19 contact the individual regarding the lack of treatment or, at an
20 administrative proceeding, ask why he or she has not complied with
21 or sought treatment in a manner consistent with his or her complaints.
22 || SSR 16-3p, 2017 WL 5180304, at *8 (emphasis added).
23 Here, the ALJ failed to consider whether plaintiff had an explanation for his
24 || apparent failure to follow prescribed treatment. The ALJ could have asked
25 | plaintiff about this at the hearing, or at any other point before issuing the decision,
26 || but failed to do so. This was error. See Dubrawsky v. Berryhill, 2017 WL
27 || 1758054, at *7 (D. Or. May 2, 2017) (“[T]he ALJ erred by failing to comply with
28 || Social Security rules prohibiting ALJs from drawing any inferences from the
10
1 plaintiff's failure to follow prescribed treatment without first providing an
2 opportunity for the plaintiff to explain or provide additional information.”) (citing
3 SSR 16-3p); Adams v. Berryhill, 2017 WL 1319833, at *4 (W.D. Wash. Mar. 21,
4 2017), report and recommendation adopted, 2017 WL 1318098 (W.D. Wash. Apr.
5 7, 2017) (ALJ erred by not considering whether plaintiff had an explanation for
6 failing to follow prescribed treatment).
7 This error is compounded, here, by the minimal evidence of plaintiff’s non-
8 compliance. The ALJ cited three medical records to support his finding that
9 plaintiff was failing to comply with prescribed treatment. (AR 25). Two of these
10 medical records indicate, respectively, that plaintiff missed two medical
11 appointments, which delayed plaintiff’s 2015 surgery (see AR 539);5 and that
12 plaintiff failed to begin physical therapy within a month after it was recommended
13 (see AR 417).6 The third record, a treatment note cited by the ALJ to show that
14 plaintiff “was not following up with . . . seeing a pain management doctor,” does
15 not even seem to support the ALJ’s finding. (See AR 25, 438). The treatment
16 note states, on October 28, 2015, that plaintiff had “an appt with pain management
17 in 2m” – meaning, presumably, two months after October 28. (AR 438).
18 Plaintiff’s physician recommended the appointment because plaintiff had been
19 “taking too much Norco.” (AR 438). The record then indicates, on December 3,
20 2015 – i.e., less than two months later – that plaintiff “ha[d] yet to see a pain
21
22
23
5The record at issue is a handwritten note, dated April 22, 2015, stating that Dr. Dietrick,
24 the doctor who had been scheduled to perform plaintiff’s knee surgery in March 2015, was no
longer going to treat plaintiff because plaintiff “was non compliant, he missed two
25
[appointments] he had.” (AR 539). As the ALJ noted, plaintiff’s knee surgery thus did not occur
26 until July 2015. (AR 25, 352).
27 6The treatment note states that plaintiff’s doctor recommended physical therapy on
28 August 5, 2015, and plaintiff had not yet seen a physical therapist as of his next appointment, on
September 2, 2015. (AR 25, 417). It is unclear when plaintiff began physical therapy.
11
1 doc.”7 (AR 438). The doctor thus “gave him oxycodone 30, #90 because he takes
2 too much tylenol in norco.” (AR 438).
3 The record does not demonstrate that this error was harmless. Aside from
4 non-compliance with treatment, the ALJ based his evaluation of plaintiff’s
5 statements on a lack of objective medical evidence, including some indications
6 that plaintiff showed improvement after his 2015 knee surgery. (AR 25, 27). This
7 is not a sufficiently “clear and convincing” basis to discount plaintiff’s statements.
8 As plaintiff points out, a lack of objective medical evidence cannot be the sole
9 reason to discount subject symptom testimony. See Robbins v. Soc. Sec. Admin.,
10 466 F.3d 880, 883 (9th Cir. 2006) (“While an ALJ may find testimony not credible
11 in part or in whole, he or she may not disregard it solely because it is not
12 substantiated affirmatively by objective medical evidence.”). Moreover, the
13 record at least supports that plaintiff continued to experience persistent pain and
14 limited functioning even after the 2015 knee surgery, notwithstanding some
15 apparent physical improvements that the ALJ referenced. (See AR 25, 438). For
16 example, on October 28, 2015, plaintiff’s physician noted:
17 [Plaintiff] was doing some light resistance and heard a pop, now some
18 effusion coming through the lateral release. I explained this is to be
19 expected due to the severe degenerative disease from the patella
20 being dislocated for many years. The PF [patellofemoral] joint is no
21 longer congruent. Now that the patella is reduced, he has better
22 strength but I expect he will have pain.
23
24 7Beyond these cited treatment notes, the record remains unclear on this issue. A different
treatment note indicates that as of December 3, 2015, plaintiff still had “not set up an
25
appointment with pain management yet.” (AR 497). Yet, even if plaintiff did fail to follow up
26 with pain management treatment, other records suggest that this may have been due to insurance
coverage. A treatment note from May 5, 2016, states that plaintiff’s “insurance provider has not
27 allowed him to see a pain management doctor that can manage his medications for the long
28 term.” (AR 600). If so, the ALJ may not be able to rely on this as a basis to discredit plaintiff’s
statements. See Warre, 439 F.3d at 1006. These issues at least require clarification on remand.
12
1 (AR 438). About a month later, on December 3, the physician noted: “[Plaintiff]
2 is a little more painful which I think is due to his activity. I explained that he will
3 certainly have some pain[.]” (AR 438). On January 12, 2016, plaintiff
4 “indicate[d] that the pain seem[ed] to be worse than before the surgery and the
5 knee [was] very swollen.” (AR 503). He “report[ed] feeling slightly better” on
6 February 3, yet he “continue[d] with daily pain when walking.” (AR 497).
7 In sum, the ALJ materially erred in discrediting plaintiff’s subjective
8 symptom testimony, and further development and consideration of the record are
9 needed. Accordingly, a remand is warranted so that the ALJ can reevaluate
10 subjective complaints and the medical evidence.
11 V. CONCLUSION
12 For the foregoing reasons, the decision of the Commissioner of Social
13 Security is REVERSED and this matter is REMANDED for further administrative
14 action consistent with this Opinion.8
15 LET JUDGMENT BE ENTERED ACCORDINGLY.
16 DATED: May 14, 2020
17 _______________/s/__________________
Honorable Jacqueline Chooljian
18
UNITED STATES MAGISTRATE JUDGE
19
20
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22
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24
25
8When a court reverses an administrative determination, “the proper course, except in rare
26 circumstances, is to remand to the agency for additional investigation or explanation.” INS v.
Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted); Treichler, 775 F.3d at 1099
27 (noting such “ordinary remand rule” applies in Social Security cases) (citations omitted). The
28 Court has determined that a reversal and remand for immediate payment of benefits would not be
appropriate.
13