“We review only the reasons provided by the ALJ in the 16 disability determination and may not affirm the ALJ on a ground upon 17 which he did not rely.”
How later courts described this case
- “We review only the reasons provided by the ALJ in the 16 disability determination and may not affirm the ALJ on a ground upon 17 which he did not rely.”
- “The decision reflects that the ALJ considered any 23 limitations posed by the bursitis at Step 4. As such, any error that 24 the ALJ made in failing to include the bursitis at Step 2 was 25 harmless.”
- “It flies in the face of the patent purposes of the Social 18 Security Act to deny benefits to someone because he is too poor to 19 obtain medical treatment that may help him.”
- An impairment is not severe if it is merely “a slight abnormality 17 (or combination of slight abnormalities) that has not more than a minimal effect on the ability to do basic work activities.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
11
12
GREGG ATHERTON R.,1 ) Case No. CV 19-05436-AS
13 )
Plaintiff, ) MEMORANDUM OPINION AND
14 )
v. ) ORDER OF REMAND
15 )
ANDREW SAUL, Commissioner )
16 of the Social Security )
Administration, )
17 )
Defendant. )
18 )
19
For the reasons discussed below, IT IS HEREBY ORDERED that,
20
pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is remanded
21
for further administrative action consistent with this Opinion.
22
//
23
//
24
//
25
//
26
27
1 Plaintiff’s name is partially redacted in accordance with
28
Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of
the Committee on Court Administration and Case Management of the
Judicial Conference of the United States.
1
PROCEEDINGS
2
3
On June 21, 2019, Plaintiff filed a Complaint seeking review of the
4
denial of his applications for Disability Insurance Benefits and
5
Supplemental Security Income. (Docket Entry No. 1). The parties have
6
consented to proceed before a United States Magistrate Judge. (Docket
7
Entry Nos. 16-17). On January 2, 2020, Defendant filed an Answer along
8
with the Administrative Record (“AR”). (Docket Entry Nos. 25-26). On
9
April 1, 2020, the parties filed a Joint Stipulation (“Joint Stip.”)
10
setting forth their respective positions regarding Plaintiff’s claims.
11
(Docket Entry No. 27).
12
13
The Court has taken this matter under submission without oral
14
argument. See C.D. Cal. L.R. 7-15.
15
16
17 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
18
Applications filed on April 27, 2011:
19
20 On April 27, 2011, Plaintiff, formerly employed as a bagger in a
21 market, a janitor in a spa, and a telemarketer (see AR 69-70, 180, 386,
22 606, 623-26), filed applications for Disability Insurance Benefits and
23 Supplemental Security Income, alleging a disability since October 1,
24 2010. (See AR 128-40). Plaintiff’s applications were denied initially
25 on August 30, 2011, and on reconsideration on March 6, 2012. (See AR
26 86-91, 93-97).
27
28 On January 9, 2013, Plaintiff, represented by counsel, and
vocational expert Lynne Tracy testified at a hearing before the
1
Administrative Law Judge (“ALJ”), Sally C. Reason (“ALJ Reason”). (See
2
AR 67-81). On January 30, 2013, ALJ Reason issued a decision denying
3
Plaintiff’s requests for benefits. (See AR 28-37). Applying the five-
4
step sequential process, ALJ Reason found at step one that Plaintiff had
5
not engaged in substantial gainful activity since October 1, 2010. (AR
6
30). At step two, ALJ Reason determined that Plaintiff had the severe
7
impairments of correctable vision and mood disorder, not otherwise
8
specified. (AR 30-31).2 At step three, ALJ Reason determined that
9
Plaintiff did not have an impairment or combination of impairments that
10
met or equaled the severity of one of the listed impairments in the
11
regulations.3 (AR 31-33). ALJ Reason then found that Plaintiff had the
12
residual functional capacity (“RFC”)4 to perform light work5 with certain
13
limitations. (AR 33-36). At step four, ALJ Reason determined that
14
Plaintiff was able to perform past relevant work as a cleaner as
15
actually and generally performed (AR 36), and therefore found that
16
Plaintiff was not under a disability as defined in the Social Security
17
Act from October 1, 2010, through the date of the ALJ’s decision on
18
January 30, 2013. (Id.).
19
20
21 2 ALJ Reason determined that Plaintiff’s other impairments –-
difficulty using hands, and history of asthma –- were nonsevere. (AR
22 31).
23 3 The ALJ specifically considered whether Plaintiff’s mental
impairment met or medically equaled the criteria of Listing 12.04
24 (depressive, bipolar and related disorders) and concluded that it did
not. (AR 31-33).
25
4 A Residual Functional Capacity is what a claimant can still do
26 despite existing exertional and nonexertional limitations. See 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
27
5 “Light work involves lifting no more than 20 pounds at a time
28 with frequent lifting or carrying of objects weighing up to 10 pounds.”
20 C.F.R. §§ 404.1567(b), 416.967(b).
1
The Appeals Council denied Plaintiff’s request for review of ALJ
2
Reason’s decision on April 25, 2014. (AR 10-14).
3
4 Applications filed on February 13, 2015:
5
On February 13, 2015, Plaintiff filed new applications for
6
Disability Insurance Benefits and Supplemental Security Income, again
7
alleging a disability since October 1, 2010. (See AR 574-86).
8
Plaintiff’s applications were denied initially on September 4, 2015, and
9
on reconsideration on April 13, 2016. (See AR 487-88, 490-93).
10
11 On February 27, 2018, Plaintiff, represented by counsel, and
12 vocational expert Aida Worthington testified at a hearing before ALJ
13 Loranzo Fleming (“ALJ Fleming”). (See AR 378-405). On May 22, 2018,
14 ALJ Fleming issued a decision denying Plaintiff’s requests for benefits.
15 (See AR 991-1002). Prior to addressing the five-step sequential
16 process, ALJ Fleming found that the Plaintiff had proven a change in
17 circumstance by alleging a disability resulting from schizoaffective
18 disorder (a mental disorder not previously considered), and therefore
19 had rebutted the presumption of continuing non-disability flowing from
20 Judge Reason’s decision. (AR 994). Accordingly, ALJ Fleming “[did] not
21 fully adopt the [RFC] from” ALJ Reason’s decision. (Id.). At step one,
22 ALJ Fleming found that Plaintiff had not engaged in substantial gainful
23 activity since October 1, 2010. (Id.). At step two, ALJ Fleming
24 determined that Plaintiff had the severe impairments of degenerative
25 disc disease and schizophrenia. (AR 994-95). At step three, ALJ
26 Fleming determined that Plaintiff did not have an impairment or
27
28
1 combination of impairments that met or medically equaled the severity of
one of the listed impairments in the regulations.6 (AR 995-96).
2
3
ALJ Fleming then found that Plaintiff had the RFC to perform medium
4
work7 with the following limitations: can lift, carry, push and pull 50
5
pounds occasionally and 25 pounds frequently; can sit, stand and/or walk
6
6 hours in an 8-hour workday; limited to simple, routine tasks with the
7
ability to follow detailed instructions; can interact/respond
8
appropriately with the public, coworkers and supervisors; can respond
9
appropriately to routine changes in the workplace; and can avoid
10
ordinary workplace hazards and can view a computer screen. (AR 996-
11
1001).
12
13
At step four, ALJ Fleming found that Plaintiff was able to perform
14
past relevant work as a bagger, housekeeping cleaner and telephone
15
solicitor as actually and generally performed. (AR 1001). Accordingly,
16
ALJ Fleming found that Plaintiff had not been under a disability as
17
defined in the Social Security Act from October 1, 2010, through the
18
date of the ALJ’s decision on May 22, 2018. (AR 1339).
19
20
The Appeals Council denied Plaintiff’s request for review of ALJ
21
Fleming’s decision on April 19, 2019. (AR 982-87). Plaintiff now seeks
22
23
24 6 The ALJ specifically considered whether Plaintiff’s physical
impairment met or medically equaled the criteria of Listing 1.04
25 (disorders of the spine) and whether Plaintiff’s mental impairment met
or medically equaled the criteria of Listing 12.04 (depressive, bipolar
26 and related disorders) and 12.06 (anxiety and obsessive-compulsive
disorders), and concluded that they did not. (AR 995-96).
27
7 “Medium work involves lifting no more than 50 pounds at a time
28 with frequent lifting or carrying of objects weighing up to 25 pounds.”
20 C.F.R. §§ 404.1567(c), 416.967(c).
1 judicial review of ALJ Fleming’s decision, which stands as the final
decision of the Commissioner. See 42 U.S.C. §§ 405(g), 1383(c).
2
3
STANDARD OF REVIEW
4
5
6 This Court reviews the Commissioner’s decision to determine if it
7 is free of legal error and supported by substantial evidence. See
8 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial
9 evidence” is more than a mere scintilla, but less than a preponderance.
10 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). “It means such
11 relevant evidence as a reasonable mind might accept as adequate to
12 support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir.
13 2017). To determine whether substantial evidence supports a finding, “a
14 court must consider the record as a whole, weighing both evidence that
15 supports and evidence that detracts from the [Commissioner’s]
16 conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.
17 2001)(internal quotation omitted). As a result, “[i]f the evidence can
18 support either affirming or reversing the ALJ’s conclusion, [a court]
19 may not substitute [its] judgment for that of the ALJ.” Robbins v. Soc.
20 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).8
21
22 //
23 //
24 //
25
26
8 The harmless error rule applies to the review of
27 administrative decisions regarding disability. See McLeod v. Astrue,
640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676,
28 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors
that are harmless).
1 PLAINTIFF’S CONTENTIONS
2
3
Plaintiff contends that ALJ Fleming erred in: (1) failing to find
4
that Plaintiff had the severe impairment of schizoaffective disorder;
5
(2) failing to find that Plaintiff’s mental impairment met Listing of
6
Impairments 12.03; (3) failing to properly assess the opinions of
7
Plaintiff’s treating psychiatrists, the consultative examiner, and the
8
State Agency physicians; and (4) rejecting Plaintiff’s subjective
9
symptom testimony. (See Joint Stip. at 3-8, 10-14, 21-24, 26-27).
10
11
DISCUSSION
12
13
After consideration of the record as a whole, the Court finds that
14
Plaintiff’s first claim - that ALJ Fleming erred in failing to find that
15
Plaintiff had the severe impairment of schizoaffective disorder - does
16
not have merit, and Plaintiff’s fourth claim - that ALJ Fleming erred in
17
failing to provide clear and convincing reasons for rejecting
18
Plaintiff’s testimony about his symptoms and limitations - warrants a
19
remand for further consideration. Since the Court is remanding the
20
matter based on Plaintiff’s fourth claim, the Court will not address
21
Plaintiff’s claims that ALJ Fleming erred in failing to find that
22
Plaintiff’s mental impairment met Listing of Impairments 12.03, and that
23
ALJ Fleming erred in failing to properly assess the opinions of
24
Plaintiff’s treating psychiatrists, the consultative examiner, and the
25
State Agency physicians.
26
27
28
1 A. ALJ Fleming’s Error in Failing to Find that Schizoaffective
2 Disorder was a Severe Impairment was Harmless
3
Plaintiff asserts that ALJ Fleming failed to find that Plaintiff
4
had the severe impairment of schizoaffective disorder. (See Joint Stip.
5
at 3-5). Defendant asserts that any error by ALJ Fleming in failing to
6
find that Plaintiff’s severe mental impairment was schizoaffective
7
disorder was harmless. (See Joint Stip. at 5-6).9
8
9
The administrative record contains evidence that Plaintiff was
10
diagnosed with schizoaffective disorder.10 According to Larisa Levin,
11
12 9 Defendant implicitly concedes that the ALJ erred in failing to
find that Plaintiff had the severe impairment of schizoaffective
13 disorder.
14 As discussed below, the record contains sufficient evidence
that Plaintiff had the severe impairment of schizoaffective disorder.
15 See 20 C.F.R. §§ 404.1520(c), 416.921(a) (a severe impairment is one
that significantly limits the physical or mental ability to perform
16 basic work activities); Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir.
2005)(An impairment is not severe if it is merely “a slight abnormality
17 (or combination of slight abnormalities) that has not more than a
minimal effect on the ability to do basic work activities.”); see also
18 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)(“[T]he two-step
inquiry is a de minimis screening device to dispose of groundless
19 claims.”).
20
10 “Schizoaffective disorder is a chronic mental health condition
21 characterized primarily by symptoms of schizophrenia, such as
hallucinations or delusions, and symptoms of a mood disorder, such as
22 mania and depression.” Symptoms include hallucinations, delusions,
disorganized thinking, depressed mood (if depression is mood disorder),
23 and manic behavior (if bipolar disorder is mood disorder).
www.nami.org/About Mental-Illness/Mental-Health-Conditions/Schizoaffe-
24 ctive-Disorder; see also American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders, 5th Ed., 99, 105 (2013) (the
25 diagnostic criteria for schizoffective disorder are: “A. An
interrupted period of illness during which there is a major mood episode
26 (major depressive or manic) concurrent with Criterion A of
schizophrenia.” [The major depressive episode must include depressed
27 mood.]; “B. Delusions or hallucinations for 2 more weeks in the absence
of a major mood episode (depressive or manic during the lifetime
28 duration of the illness.”; “C. Symptoms that meet criteria for a major
(continued...)
8
1 M.D., a psychiatrist at the Hollywood Mental Health Center, Plaintiff
2 was diagnosed with schizoaffective disorder on May 19, 2014. (AR 907,
3 910 [Evaluation Form for Mental Disorders dated June 11, 2015]).11 On
4 May 20, 2015, Dr. Levin stated that Plaintiff was being treated for
5 auditory hallucinations, depression and insomnia, and that Plaintiff was
6 prescribed antidepressant and anti-psychotic medications. (AR 826-
7 27). In an Evaluation Form for Mental Disorders dated June 11, 2015,
8 (prepared following an examination of Plaintiff on May 28, 2015), Dr.
9 Levin stated that Plaintiff reported thought disturbances, auditory
10 hallucinations, chronic depression, severe paranoia, mistrust, delusions
11 and “depressive symptoms which cause him to isolate and avoid people,”
12 and diagnosed Plaintiff with, inter alia, schizoaffective disorder. (AR
13 907-10). In an Evaluation Form for Mental Disorders dated November 2,
14 2015, (prepared following an examination of Plaintiff on September 21,
15 2015), Dr. Levin stated that Plaintiff reported the same symptoms as
16 before and again diagnosed Plaintiff with, inter alia, schizoaffective
17 disorder. (AR 913-16). On May 18, 2017 and September 14, 2017, Dr.
18 Levin noted Plaintiff’s schizoaffective disorder. (AR 949-50, 953-54).
19
20 10 (...continued)
mood episode are present for the majority of the total duration of the
21 active and residual portions of the illness.”; “D. The disturbance is
not attributable to the effects of a substance (e.g., a drug of abuse,
22 a medication) or another medical condition.”; “Criteria A of
Schizophrenia includes: A. Two (or more) of the following, each present
23 for a significant portion of during during a 1-month period (or less if
successfully treated). At least one of these must be (1),(2), or (3).
24 1. Delusions. 2. Hallucinations. 3. Disorganized speech (e.g,
frequent derailment or incoherence). 4. Grossly disorganized or
25 catatonic behavior. 5. Negative symptoms (i.e. diminished emotional
expression or avolution).”).
26
27 11 The Court has not been able to locate any document in the
administrative record supporting Dr. Levin’s statement that Plaintiff
28 was first diagnosed with schizoaffective disorder on May 19, 2014.
9
1 On December 7, 2017, another psychiatrist, Alisa Sabshin, M.D.,
2 noted Plaintiff’s schizoaffective disorder. (AR 928 [Medical Release
3 Consent [“Client suffers with mental illness which impairs his ability
4 to access transportation. Client’s diagnosis is schizoaffective
5 disorder.”]). On January 10, 2018, psychiatrist Margarita Krasnova,
6 M.D., also noted Plaintiff’s schizoaffective disorder. (AR 979).
7
8 Although ALJ Fleming found that the Plaintiff had proven a change
9 in circumstance by alleging a disability resulting from schizoaffective
10 disorder (a mental disorder not previously considered), the ALJ found
11 that Plaintiff had the severe impairment of schizophrenia (AR 994-95),12
12 rather than schizoaffective disorder.
13
14 Although the ALJ erred in failing to find Plaintiff had the severe
15 impairment of schizoaffective disorder, the error was harmless. See
16 Tommasetti v. Astrue, 533 F.3d 1035, 1038(9th Cir. 2008)(an ALJ’s error
17
12 The AlJ noted that Plaintiff had alleged that schizophrenia
18
limited his ability to work (AR 599 [undated Disability Report - Adult]
because he suffers hallucinations and extreme anxiety, is unable to be
19
around people, becomes overwhelmed easily, and is unable to function at
all (AR 615 [undated Function Report - Adult]. (AR 996). In March 2016,
20
Plaintiff reported that he suffers from schizophrenia to Raymond Yee,
M.D., the psychiatric consultative examiner. (AR 922).
21
22
“Schizophrenia is a serious mental illness that interferes
with a person’s ability to think clearly, manage emotions, make
23
decisions and relate to others. . . . To be diagnosed with
schizophrenia, a person must have two or more of the following symptoms
24
occurring persistently in the context of reduced functioning:
Delusions[;] Hallucination[;] Disorganized speech[;] Disorganized or
25
catatonic behavior; [and] Negative Symptoms[.]” www.nami.org/About-
Mental-Illness/Mental-Health-Conditions/Schizophrenia; see also
26
www.mayoclinic.org/diseases-conditions/schizophrenia/symptoms-
causes/syc-2035443 (“Schizophrenia is a serious mental disorder in which
27
people interpret reality abnormally. Schizophrenia may result in some
combination of hallucinations, delusions, and extremely disordered
28
thinking and behavior that impairs daily functioning, and can be
disabling.”).
1
is harmless “when it is clear from the record . . . that it was
2
‘inconsequential to the ultimate nondisability determination.’”); Burch
3
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(“A decision of the ALJ
4
will not be reversed for errors that are harmless.”).
5
6
In assessing Plaintiff’s RFC, ALJ Fleming considered all of the
7
limitations that Plaintiff stated were caused by mental illness,
8
including (1) Plaintiff’s statements in the Adult Function Report that
9
he is not able to work because he suffers hallucinations and extreme
10
anxiety, is unable to be around people, becomes overwhelmed easily, is
11
unable to function at all, can pay attention for a maximum of 10
12
minutes, and does not follow written or spoken instructions well (see AR
13
996, citing AR 615, 620); (2) Plaintiff’s hearing testimony that he
14
sees faces on blank walls and talks to them (see AR 996, relying on AR
15
397-98); and (3) the psychiatric evidence in the record (see AR 997-
16
1001). Although Plaintiff asserts that “the combination of depressive
17
and psychotic symptoms as a result of schizoaffective disorder
18
significantly impacted [P]laintiff’s functioning” (Joint Stip. at 5),
19
Plaintiff has not pointed to any evidence of functional limitations due
20
to schizoaffective disorder that would have impacted ALJ Fleming’s
21
determination about Plaintiff’s RFC. See Lewis v. Astrue, 498 F.3d 909,
22
911 (9th Cir. 2007)(“The decision reflects that the ALJ considered any
23
limitations posed by the bursitis at Step 4. As such, any error that
24
the ALJ made in failing to include the bursitis at Step 2 was
25
harmless.”); Burch, 400 F.3d at 682-84 (ALJ’s failure to find that the
26
claimant’s obesity was a severe impairment was harmless error: “Based
27
on the record, the ALJ adequately considered [the claimant’s] obesity in
28
his RFC determination. The claimant has not set forth, and there is not
1
evidence in the record, of any functional limitations as a result of her
2
obesity that the ALJ failed to consider.”); see also Koch v. Berryhill,
3
720 Fed.Appx 361, 364 (9th Cir. 2017)(“Although the ALJ erred by not
4
considering arthritis at step two and not finding that varicose veins
5
were a severe impairment, these errors were harmless because they did
6
not prejudice [the claimant] at any step of the sequential analysis.”).
7
8
The Court finds ALJ Fleming’s error in failing to find that
9
schizoaffective disorder was a severe impairment to be harmless.
10
11
B. ALJ Fleming Failed to Provide Clear and Convincing Reasons for
12 Rejecting Plaintiff’s Subjective Symptom Testimony
13 Plaintiff asserts that ALJ Fleming did not provide clear and
14 convincing reasons for rejecting Plaintiff’s testimony about his
15 symptoms and limitations. (See Joint Stip. at 22-24, 26-27). Defendant
16 asserts that ALJ Fleming provided proper reasons for discounting
17 Plaintiff’s testimony. (See Joint Stip. at 24-26).
18
19 1. Legal Standard
20
21 When assessing a claimant’s credibility regarding subjective pain
22 or intensity of symptoms, the ALJ must engage in a two-step analysis.
23 Trevizo, 871 F.3d at 678. First, the ALJ must determine if there is
24 medical evidence of an impairment that could reasonably produce the
25 symptoms alleged. Id. (citing Garrison v. Colvin, 759 F.3d 995, 1014-15
26 (9th Cir. 2014)). “In this analysis, the claimant is not required to
27 show that her impairment could reasonably be expected to cause the
28 severity of the symptom she has alleged; she need only show that it
1 could reasonably have caused some degree of the symptom.” Id. (emphasis
2 in original)(citation omitted). “Nor must a claimant produce objective
3 medical evidence of the pain or fatigue itself, or the severity
4 thereof.” Id. (citation omitted).
5
6 If the claimant satisfies this first step, and there is no evidence
7 of malingering, the ALJ must provide specific, clear and convincing
8
reasons for rejecting the claimant’s testimony about the symptom
9
severity. Id. (citation omitted); see also Robbins v. Soc. Sec. Admin.,
10
466 F.3d 880, 883 (9th Cir. 2006)(“[U]nless an ALJ makes a finding of
11
malingering based on affirmative evidence thereof, he or she may only
12
find an applicant not credible by making specific findings as to
13
credibility and stating clear and convincing reasons for each.”); Smolen
14
v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)(“[T]he ALJ may reject the
15
claimant’s testimony regarding the severity of her symptoms only if he
16
makes specific findings stating clear and convincing reasons for doing
17
so.”). “This is not an easy requirement to meet: The clear and
18
convincing standard is the most demanding required in Social Security
19
20 cases.” Garrison, 759 F.3d at 1015 (citation omitted).
21
22 Where, as here, the ALJ finds that a claimant suffers from a
23 medically determinable physical or mental impairment that could
24 reasonably be expected to produce his alleged symptoms, the ALJ must
25 evaluate “the intensity and persistence of those symptoms to determine
26 the extent to which the symptoms limit an individual’s ability to
27 perform work-related activities for an adult.” Soc. Sec. Ruling (“SSR”)
28
1 16-3p, 2017 WL 5180304, at *3.13 SSR 16–3p eliminated the term
2 “credibility” from the Agency’s sub-regulatory policy. However, the
3
Ninth Circuit Court of Appeals has noted that SSR 16–3p:
4
makes clear what [the Ninth Circuit’s] precedent already
required: that assessments of an individual’s testimony by an
5
ALJ are designed to “evaluate the intensity and persistence of
symptoms after the ALJ finds that the individual has a
6
medically determinable impairment(s) that could reasonably be
expected to produce those symptoms,” and not to delve into
7
wide-ranging scrutiny of the claimant’s character and apparent
truthfulness.
8
9
Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16–3p)(alterations omitted).
10
11 In discrediting the claimant’s subjective symptom testimony, the
12 ALJ may consider: “ordinary techniques of credibility evaluation, such
13 as . . . prior inconsistent statements concerning the symptoms, and
14 other testimony by the claimant that appears less than candid;
15 unexplained or inadequately explained failure to seek treatment or to
16 follow a prescribed course of treatment; and the claimant’s daily
17 activities.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014)
18 (citation omitted). Inconsistencies between a claimant’s testimony and
19
conduct, or internal contradictions in the claimant’s testimony, also
20
may be relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir.
21
2014). In addition, the ALJ may consider the observations of treating
22
and examining physicians regarding, among other matters, the functional
23
restrictions caused by the claimant’s symptoms. Smolen, 80 F.3d at
24
25
13 SSR 16-3p, which became effective on March 28, 2016, and
26
superseded SSR 96-7p, is applicable to this case because SSR 16-3p was
in effect at the time of the Appeals Council’s denial of Plaintiff’s
27
request for review on April 19, 2019. 20 C.F.R. §§ 404.1529 and
416.929, the regulations on evaluating a claimant’s symptoms, including
28
pain, have not changed.
1
1284.; accord Burrell, 775 F.3d at 1137. However, it is improper for an
2
ALJ to reject subjective testimony based “solely” on its inconsistencies
3
with the objective medical evidence presented. Bray v. Comm’r of Soc.
4
Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009)(citation omitted).
5
6
The ALJ must make a credibility determination with findings that
7
are “sufficiently specific to permit the court to conclude that the ALJ
8
did not arbitrarily discredit claimant’s testimony.” Tommasetti v.
9
Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)(citation omitted); see
10
11 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015)(“A finding
12 that a claimant’s testimony is not credible must be sufficiently
13 specific to allow a reviewing court to conclude the adjudicator rejected
14 the claimant’s testimony on permissible grounds and did not arbitrarily
15 discredit a claimant’s testimony regarding pain;” citation omitted).
16 Although an ALJ’s interpretation of a claimant’s testimony may not be
17 the only reasonable one, if it is supported by substantial evidence, “it
18 is not [the court’s] role to second-guess it.” Rollins v. Massanari,
19
261 F.3d 853, 857 (9th Cir. 2001).
20
21
2. Plaintiff’s Subjective Statements and Testimony
22
23
At the January 9, 2013 administrative hearing, Plaintiff testified
24
that he is 44 years old and has a GED. (AR 69). He has mostly worked
25
part-time and is not able to work full-time because he is always
26
extremely nervous, is visually impaired (glasses have been ordered for
27
him), and cannot function around people (other people think he is
28
1
strange when he is around them and he would completely “lose it” if he
2
saw people approaching him, and he would be fired immediately). (AR 69-
3
71, 77). The medication he takes makes him calmer. (AR 71, 73). He
4
has been homeless since 2006 and stays at the Armory or a shelter. (AR
5
72). He tends to “explode” if he is not on (or is in between) his
6
medication. (AR 73-77). A few weeks earlier, he was arrested after he
7
“exploded” when the public library did not have the DVD he wanted, he
8
“goes off” on people at the gym who look at him when he is trying to
9
bathe, and he has lost friends because he ‘blew up’ at them when they
10
11 said something out of line. (AR 73-76). He has not consumed alcohol in
12 “a very long time.” (AR 78).
13
14 In an Adult Function Report dated May 7, 2015, (see AR 615-22),
15 Plaintiff stated that he cannot work because his schizophrenia and
16 depression cause him to hallucinate, be extremely anxious, not be able
17 to be around other people, become overwhelmed easily, and be unable to
18 function “at all.” (AR 615). His daily activities involve bathing when
19
he awakes, eating lunch at Jack in the Box, going to the library and
20
using the internet until 5 p.m., cleaning and organizing his room, and
21
going to sleep around 8 p.m. (AR 616-17). He goes to the library
22
daily, using public transportation. (AR 618-19). His hobbies are
23
listening to music (opera) and reading. (AR 619). He does not spend
24
time with other people, has problems getting along with other people and
25
avoids contact with other people because he is unable to handle
26
conversations, is afraid people will use their contacts with him against
27
him, and people see him talking to walls and think he is weird. (AR
28
1
619-20). He can pay attention for only 10 minutes and is not able to
2
finish what he starts and does not follow written instructions or spoken
3
instructions well. (AR 620). He does not get along well with authority
4
figures (automatic defensiveness). (AR 621). He has been fired or laid
5
off from many jobs because he “exploded” because of his coworkers’
6
complaints and lack of productivity. (Id.). He does not handle stress
7
for which he takes medication), and changes in routine well. (Id.).
8
His unusual behaviors involve checking often to make sure a door is
9
locked, putting food in a certain position, and cleaning tables to
10
11 eliminate other people’s D.N.A. (Id.).
12
13 At the administrative hearing on February 27, 2018, Plaintiff
14 testified that he has a driver’s license but does not drive (he took
15 public transportation to the hearing). (AR 386). He is unable to work
16 because he sees faces on walls and talks to and/or argues with them, has
17 horrible low back pain (which he rated at 10 out of 10), and his vision
18 is getting worse (he uses his glasses and a magnifying glass). (AR 387-
19
89, 394, 397-98). His back pain is worse in the morning, especially
20
when it is colder, and is aggravated by lifting (which he avoids). (AR
21
389). He takes ibuprofen for his back pain. (Id.). He does not have
22
a back brace, has never been to physical therapy, has not had back
23
surgery, and has never been recommended for back surgery (“I don’t know
24
if they can afford to. I don’t want to become a paraplegic [sic].”).
25
(Id.). His medications cause him to use the restroom often, and make
26
him sleepy and irritable. (AR 388, 390, 398-99). He can walk a couple
27
of blocks, but the pain causes him to limp. (AR 392). He has to limit
28
1
his standing and he sits on the train (he is able to sit for some time
2
as long as he keeps moving his back). (AR 392-93). He can occasionally
3
bend, stoop, and kneel. (Id.). His hands are too dry, and he feels
4
pain when he grabs things. (AR 393). He can lift about 30 pounds.
5
(Id.). He has difficulty sleeping without medication. (AR 395). His
6
only hobby or activity is “go[ing] online and watch[ing] music videos at
7
the library” and he no longer reads because of his vision issues. (AR
8
396). His daily activities include waking at 9 a.m., drinking coffee,
9
taking a shower, and going to the library where he spends most of his
10
11 day watching music videos online. (AR 396-97). He goes to two separate
12 libraries -- the city library and then the county library -- because the
13 libraries have two-hour internet limits. (AR 397). He does not have
14 any friends and does not socialize with anybody on a regular basis. (AR
15 398).
16
17 3. ALJ Fleming’s Credibility Findings
18
19
After briefly discussing Plaintiff’s testimony (see AR 998-97),
20
ALJ Fleming found Plaintiff’s statements concerning the intensity,
21
persistence and limiting effects of his symptoms to not be “entirely
22
consistent with the medical evidence and other evidence in the record.”
23
(AR 997). After reviewing the medical evidence in the record, including
24
the opinions of a mental health service program manager, Plaintiff’s
25
treating psychiatrist (Dr. Levin), the psychiatric consultative
26
examiner, the medical consultative examiner, and the State Agency
27
physicians (see AR 997-1001), the ALJ wrote: “[T]he undersigned does
28
1 give the claimant’s subjective complaint of back pain the benefit of the
2 doubt, such that the residual functional capacity accounts for some
3
exertional limitations related to back disease.” (AR 1001).
4
5
ALJ Fleming then discussed the opinion of Dr. Sabshin, another
6
psychiatrist who had treated Plaintiff, see AR 1001, and following that
7
discussion, in the final paragraph of the section concerning the RFC
8
determination, ALJ Fleming noted that Plaintiff had stated, in his
9
Function Report, that he “could pay attention for only 10 minutes, but
10
he would spend his entire day on the internet at the library until 5 pm.
11
([AR 616, 619]). At the hearing, he claimed he could not maintain
12
concentration, persistence or pace for two hour segments, yet he
13
purposely maximized his time between two libraries that permitted 2 hour
14
15 time limits on their computers, which he used daily. He still
16 complained of back pain, but denied having a brace, receiving physical
17 therapy, or having any history of back surgery.” (AR 1001).
18
19 4. Analysis
20
21 The Court finds that ALJ Fleming failed to provide clear and
22 convincing reasons for discounting Plaintiff’s testimony about the
23
intensity, persistence and limiting effects of his pain and symptoms.
24
25
First, ALJ Fleming failed to “specifically identify ‘what testimony
26
is not credible and what evidence undermines [Plaintiff’s] complaints.’”
27
Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007)(quoting Lester v.
28
Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen, 80 F.3d at
1 1284 (“The ALJ must state specifically what symptom testimony is not
2 credible and what facts in the record lead to that conclusion”).
3
4
Second, contrary to Defendant’s assertions (see Joint Stip. at 25-
5
26), ALJ Fleming did not discount Plaintiff’s testimony based on
6
inconsistencies between Plaintiff’s testimony and Plaintiff’s daily
7
activities or Plaintiff’s failure to obtain medical treatment for his
8
back issue. At the end of the section concerning the RFC determination,
9
ALJ Fleming merely “noted” certain portions of the statements Plaintiff
10
had made in his Function Report and Plaintiff’s testimony at the
11
February 27, 2018 administrative hearing. Since ALJ Fleming did not
12
clearly discount Plaintiff’s testimony based on the specific reasons
13
alleged by Defendant, the Court will not consider them. See Garrison,
14
15 759 F.3d at 1010 (“We review only the reasons provided by the ALJ in the
16 disability determination and may not affirm the ALJ on a ground upon
17 which he did not rely.”); Connett v. Barnhart, 340 F.3d 871, 874 (9th
18 Cir. 2003)(“We are constrained to review the reasons the ALJ asserts.”;
19 citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) and Pinto v.
20 Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)).
21
22 In any event, even if ALJ Fleming had discounted Plaintiff’s
23
subjective symptom testimony based on an alleged inconsistency between
24
Plaintiff’s statement that he could pay attention for only 10 minutes
25
and could not pay attention and concentrate on a task for two hours (AR
26
398, 620), and Plaintiff’s testimony that he daily spent two hours at
27
two different libraries using the internet (AR 396-97, 616, 618-19),
28
this would not be a clear and convincing reason for discounting
1 Plaintiff’s testimony about his symptoms and functional limitations.
2 See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)(“[T]he mere
3
fact that a plaintiff has carried on certain daily activities . . . does
4
not in any way detract from her credibility as to her overall
5
disability. One does not need to be ‘utterly incapacitated’ in order to
6
be disabled.”); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
7
1998)(“Only if the level of activity were inconsistent with the
8
Claimant’s claimed limitations would these activities have any bearing
9
on Claimant’s credibility.”).
10
11
It is not clear whether ALJ Fleming considered Plaintiff’s
12
testimony at the February 27, 2018 administrative hearing that the only
13
thing he does at the library is “go online and watch music videos” (AR
14
15 396). At the hearing, ALJ Fleming did not ask Plaintiff about the
16 amount of attention and/or concentration required to watch music videos
17 at the library. Therefore, the degree to which Plaintiff could perform
18 such a daily activity may not have been inconsistent with Plaintiff’s
19 testimony regarding his symptoms and limitations. See Reddick, supra.
20
21 Moreover, to the extent that ALJ Fleming may have attempted to
22 discount Plaintiff’s testimony based on Plaintiff’s failure to obtain
23
medical treatment for his back issue (AR 389 [Plaintiff testified that
24
he did not have a back brace, had not had any physical therapy, and had
25
not had any back surgery]), that also would not have been a clear and
26
convincing reason. See Tommasetti, 533 F.3d at 1039 (an ALJ may
27
discount a claimant’s credibility based on, inter alia, an “unexplained
28
or inadequately explained failure to seek treatment or to follow a
1 prescribed course of treatment”; citation omitted); Parra v. Astrue, 481
2 F.3d 742, 750-51 (9th Cir. 2007)(“The ALJ also noted that [the
3
claimant’s] physical ailments were treated with over-the-counter pain
4
medication. We have previously indicated that evidence of ‘conservative
5
treatment’ is sufficient to discount a claimant’s testimony regarding
6
severity of an impairment.”; citation omitted). Here, Plaintiff’s
7
failure to obtain medical treatment for his back issue may have been the
8
result of his financial issues (see AR 72 [Plaintiff testified at the
9
January 9, 2013 administrative hearing that he has been homeless since
10
2006]), 616 [Plaintiff stated in the Adult Function Report submitted on
11
May 7, 2015 that he ate only one meal a day]). See Regennitter v.
12
Commissioner of Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1998)(“.
13
. . [W]e have proscribed the rejection of a claimant’s complaints for
14
15 lack of treatment when the record establishes that the claimant could
16 not afford it[.]”); Gamble v. Chater, 68 F.3d 319, 322 (9th Cir.
17 1995)(“It flies in the face of the patent purposes of the Social
18 Security Act to deny benefits to someone because he is too poor to
19 obtain medical treatment that may help him.”)(quoting Gordon v.
20 Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)). In any event, even if
21 Plaintiff’s testimony concerning his back issue was not credible, that
22 would not be relevant to the credibility of Plaintiff’s testimony about
23
the symptoms and limitations related to his mental impairment.
24
25
Third, while the ALJ also found there was a lack of objective
26
medical evidence supporting Plaintiff’s testimony concerning his
27
symptoms and limitations, this factor cannot, by itself, support an
28
adverse finding about Plaintiff’s testimony. See Trevizo, 871 F.3d at
1 679 (once a claimant demonstrates medical evidence of an underlying
2 impairment, “an ALJ ‘may not disregard [a claimant’s testimony] solely
3
because it is not substantiated affirmatively by objective medical
4
evidence.’”)(quoting Robbins, supra); see also SSR 16-3p, 2017 WL
5
5180304, *7 (“We must consider whether an individual’s statements about
6
the intensity, persistence, and limiting effects of his or her symptoms
7
are consistent with the medical signs and laboratory findings of record.
8
. . . However, we will not disregard an individual’s statements about
9
the intensity, persistence, and limiting effects of symptoms solely
10
because the objective medical evidence does not substantiate the degree
11
of impairment related-symptoms alleged by the individual.”).
12
13
Because the Court finds that the the ALJ did not discount
14
15 Plaintiff’s symptom testimony on legally permissible grounds, the Court
16 is unable to defer to the ALJ’s credibility determination. Cf. Flaten
17 v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1464 (9th Cir.
18 1995)(the court will defer to the ALJ’s credibility determinations when
19 they are appropriately supported in the record by specific findings
20 justifying that decision)(citations omitted)14.
21 14 Plaintiff’s second claim of error is that ALJ Fleming erred in
failing to find that Plaintiff’s mental impairment met Listing of
22 Impairments 12.03. Petitioner alleges, in part, that ALJ Fleming’s
findings with respect to the “B paragraph” criteria, specifically, that
23 Plaintiff had mild limitations in understanding, remembering or applying
information and in interacting with others (AR 995), was unsupported by
24 the evidence. (See Joint Stip. at 6-8, 10-11).
25 It appears to the Court, without deciding, that ALJ Fleming’s
findings with respect to those “B paragraph” criteria may not have been
26 supported by substantial evidence and may not have been a rational
interpretation of the record. See Noah v. Berryhill, 732 Fed.Appx 520,
27 521 (9th Cir. 2018)(“Because the ALJ supported her conclusions
concerning [the claimant’s] level of limitation with substantial
28 evidence and provided a rational interpretation of the record, we will
(continued...)
1 C. Remand Is Warranted
2
3
The decision whether to remand for further proceedings or order an
4
immediate award of benefits is within the district court’s discretion.
5
Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no
6
useful purpose would be served by further administrative proceedings, or
7
where the record has been fully developed, it is appropriate to exercise
8
this discretion to direct an immediate award of benefits. Id. at 1179
9
(“[T]he decision of whether to remand for further proceedings turns upon
10
the likely utility of such proceedings.”). However, where, as here, the
11
circumstances of the case suggest that further administrative review
12
could remedy the Commissioner’s errors, remand is appropriate. McLeod
13
v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman, 211 F.3d at 1179-
14
15 81.
16
17 Since ALJ Fleming failed to properly assess Plaintiff’s symptom
18 testimony, remand is appropriate. Because outstanding issues must be
19 resolved before a determination of disability can be made, and “when the
20 record as a whole creates serious doubt as to whether the [Plaintiff]
21
14 (...continued)
22
uphold the ALJ’s decision.”); Jennifer H. v. Saul, 2020 WL 3128875, *12
(N.D. Cal. June 12, 2020)(“The question, however, is not whether other
23
evidence in the record might speak to the paragraph B criteria but
whether the AlJ’s determination is supported by substantial evidence.”;
24
citing Noah, supra).
25
Since the resolution of Plaintiff’s second claim of error
appears to depend on the credibility of Plaintiff’s subjective symptom
26
testimony (which is the basis for the Court’s remand) as well as the
assessment of the opinions of Plaintiff’s treating psychiatrists and the
27
consultative examining psychiatrist (see Joint Stip. at 6-11), these
issues are appropriately left for consideration on remand.
28
1 is, in fact, disabled within the meaning of the Social Security Act,”
2 further administrative proceedings would serve a useful purpose and
3 remedy defects. Burrell, 775 F.3d at 1141 (citations omitted).15
4
5
ORDER
6
7
For the foregoing reasons, the decision of the Commissioner is
8
reversed, and the matter is remanded for further proceedings pursuant to
9
Sentence 4 of 42 U.S.C. § 405(g).
10
11
LET JUDGMENT BE ENTERED ACCORDINGLY.
12
13
DATED: September 23, 2020
14
15
16
17 /s/
ALKA SAGAR
18 UNITED STATES MAGISTRATE JUDGE
19
20
21
22
23
24
25
26
15 The Court has not reached any other issue raised by Plaintiff
except to determine that reversal with a directive for the immediate
27
payment of benefits would not be appropriate at this time.
“[E]valuation of the record as a whole creates serious doubt that
28
Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995,
1021 (2014).