# Michelle Leann Paxton v. Kilolo Kijakazi

> District Court, C.D. California · November 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10039602

## Case

- **Court:** District Court, C.D. California
- **Decided:** November 27, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10039602

## How later opinions describe it (automated extraction)

- noting such “ordinary remand rule” applies in Social Security cases

## Opinion text

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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11 MICHELLE L.P.,1 Case No. 5:19-cv-01914-JC

12 Plaintiff,
MEMORANDUM OPINION AND
13 v. ORDER OF REMAND
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ANDREW SAUL, Commissioner of
15 Social Security Administration,
16 Defendant.
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I. SUMMARY
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On October 7, 2019, plaintiff filed a Complaint seeking review of the
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Commissioner of Social Security’s denial of her applications for benefits. The
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parties have consented to proceed before the undersigned United States Magistrate
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Judge.
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This matter is before the Court on Plaintiff’s Motion for Summary Judgment
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(“Plaintiff’s Motion”), to which defendant filed an opposition (“Defendant’s
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27 1Plaintiff’s name is partially redacted to protect her 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.
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1 Opposition”). The Court has taken the matter under submission without oral
2 argument. See Fed. R. Civ. P. 78; L.R. 7-15; Case Management 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 January 23, 2017, plaintiff filed an application for Disability Insurance
9 Benefits, alleging disability beginning on September 23, 2016, due to multiple
10 sclerosis, back pain, bipolar disorder, and severe depression and anxiety.
11 (See Administrative Record (“AR”) 251-52, 290). An application for
12 Supplemental Security Income followed on April 25, 2018. (AR 263-69). An
13 Administrative Law Judge (“ALJ”) subsequently examined the medical record and
14 heard testimony from plaintiff (who was represented by counsel), as well as a
15 medical expert and a vocational expert, on April 17, 2019. (AR 47-74). On April
16 30, 2019, the ALJ determined that plaintiff has not been disabled since
17 September 23, 2016, the alleged onset date. (AR 28-40). Specifically, the ALJ
18 found: (1) plaintiff suffers from the following severe impairments: obesity,
19 multiple sclerosis, chronic pain, degenerative disc disease of the cervical spine and
20 lumbar spine, degenerative joint disease of the bilateral knees, and migraine
21 headaches (AR 31); (2) plaintiff’s impairments, considered individually or in
22 combination, do not meet or medically equal a listed impairment (AR 32);
23 (3) plaintiff retains the residual functional capacity (“RFC”) to perform a reduced
24 range of light work (20 C.F.R. §§ 404.1567(b), 416.1967(b)) (AR 33); (4) plaintiff
25 is unable to perform any past relevant work (AR 38); (5) plaintiff is capable of
26 performing other jobs that exist in significant numbers in the national economy,
27 specifically office helper, information clerk, telephone quotation clerk, and
28 paramutual ticket checker (AR 39); and (6) plaintiff’s statements regarding the
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1 intensity, persistence, and limiting effects of subjective symptoms are not entirely
2 consistent with the medical evidence and other evidence in the record (AR 36).
3 On August 7, 2019, the Appeals Council denied plaintiff’s application for
4 review of the ALJ’s decision. (AR 2-4).
5 III. APPLICABLE LEGAL STANDARDS
6 A. Administrative Evaluation of Disability Claims
7 To qualify for disability benefits, a claimant must show that she is unable
8 “to engage in any substantial gainful activity by reason of any medically
9 determinable physical or mental impairment which can be expected to result in
10 death or which has lasted or can be expected to last for a continuous period of not
11 less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§ 404.1505(a),
12 416.905(a). To be considered disabled, a claimant must have an impairment of
13 such severity that she is incapable of performing work the claimant previously
14 performed (“past relevant work”) as well as any other “work which exists in the
15 national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing
16 42 U.S.C. § 423(d)).
17 To assess whether a claimant is disabled, an ALJ is required to use the five-
18 step sequential evaluation process set forth in Social Security regulations. See
19 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)
20 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520,
21 416.920). The claimant has the burden of proof at steps one through four – i.e.,
22 determination of whether the claimant was engaging in substantial gainful activity
23 (step 1), has a sufficiently severe impairment (step 2), has an impairment or
24 combination of impairments that meets or medically equals one of the conditions
25 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and
26 retains the residual functional capacity to perform past relevant work (step 4).
27 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The
28 ///
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1 || Commissioner has the burden of proof at step five —i.e., establishing that the
2 || claimant could perform other work in the national economy. Id.
3 B. Federal Court Review of Social Security Disability Decisions
4 A federal court may set aside a dental of benefits only when the
5 || Commissioner’s “final decision” was “based on legal error or not supported by
6 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
7 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The
8 || standard of review in disability cases is “highly deferential.” Rounds v. Comm’r
9 || of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation
10 | marks omitted). Thus, an ALJ’s decision must be upheld if the evidence could
11 || reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at
12 || 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must
13 || be affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec.
14 || Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if
15 || (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path
16 || may reasonably be discerned despite the error) (citation and quotation marks
17 || omitted).
18 Substantial evidence is “such relevant evidence as a reasonable mind might
19 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining
20 || “substantial evidence” as “more than a mere scintilla, but less than a
21 || preponderance’’) (citation and quotation marks omitted). When determining
22 || whether substantial evidence supports an ALJ’s finding, a court “must consider the
23 || entire record as a whole, weighing both the evidence that supports and the
24 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v.
25 || Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).
26 Federal courts review only the reasoning the ALJ provided, and may not
27 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”
28 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need

1 not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s
2 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,
3 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).
4 A reviewing court may not conclude that an error was harmless based on
5 independent findings gleaned from the administrative record. Brown-Hunter, 806
6 F.3d at 492 (citations omitted). When a reviewing court cannot confidently
7 conclude that an error was harmless, a remand for additional investigation or
8 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173
9 (9th Cir. 2015) (citations omitted).
10 IV. DISCUSSION
11 Plaintiff’s sole claim is that the ALJ failed to provide clear, specific, and
12 convincing reasons to discredit her statements and testimony. (Plaintiff’s Motion
13 at 7-15). For the reasons stated below, the Court finds that the ALJ erred on this
14 basis. Since the Court cannot find that the error was harmless, a remand is
15 warranted.
16 A. Pertinent Law
17 When determining disability, an ALJ is required to consider a claimant’s
18 impairment-related pain and other subjective symptoms at each step of the
19 sequential evaluation process. 20 C.F.R. §§ 404.1529(a), (d). Accordingly, when
20 a claimant presents “objective medical evidence of an underlying impairment
21 which might reasonably produce the pain or other symptoms [the claimant]
22 alleged,” the ALJ is required to determine the extent to which the claimant’s
23 statements regarding the intensity, persistence, and limiting effects of his or her
24 subjective symptoms (“subjective statements” or “subjective complaints”) are
25 consistent with the record evidence as a whole and, consequently, whether any of
26 the individual’s symptom-related functional limitations and restrictions are likely
27 to reduce the claimant’s capacity to perform work-related activities. 20 C.F.R.
28 ///
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1 || §§ 404.1529(a), (c)(4); SSR 16-3p, 2017 WL 5180304, at *4-*10.* When an
2 || individual’s subjective statements are inconsistent with other evidence in the
3 || record, an ALJ may give less weight to such statements and, in turn, find that the
4 || individual’s symptoms are less likely to reduce the claimant’s capacity to perform
5 || work-related activities. See SSR 16-3p, 2017 WL 5180304, at *8. In such cases,
6 || when there is no affirmative finding of malingering, an ALJ may “reject” or give
7 || less weight to the individual’s subjective statements “only by providing specific,
8 || clear, and convincing reasons for doing so.” Brown-Hunter, 806 F.3d at 488-89.
9 || This requirement is very difficult to satisfy. See Trevizo, 871 F.3d at 678 (“The
10 || clear and convincing standard is the most demanding required in Social Security
11 || cases.’’) (citation and quotation marks omitted).
12 An ALJ’s decision “must contain specific reasons” supported by substantial
13 || evidence in the record for giving less weight to a claimant’s statements. SSR 16-
14 || 3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each subjective
15 || statement being rejected and the particular evidence in the record which
16 || purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation
17 || omitted). Unless there is affirmative evidence of malingering, the Commissioner’s
18 || reasons for rejecting a claimant’s testimony must be “clear and convincing.”
19 || Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (internal quotation marks
20 || omitted), as amended (Apr. 9, 1996). “General findings are insufficient[.]”
21 | Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted).
22 If an ALJ’s evaluation of a claimant’s statements is reasonable and is
23 || supported by substantial evidence, it is not the court’s role to second-guess it. See
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%6 ‘Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the
term “credibility” from SSA “sub-regulatory policy[]” in order to “clarify that subjective
27 || symptom evaluation is not an examination of an individual’s [overall character or truthfulness]
... [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See
28 || SSR 16-3p, 2017 WL 5180304, at *1-*2, *10-*11.

1 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). When
2 an ALJ fails properly to discuss a claimant’s subjective complaints, however, the
3 error may not be considered harmless “unless [the Court] can confidently conclude
4 that no reasonable ALJ, when fully crediting the testimony, could have reached a
5 different disability determination.” Stout, 454 F.3d at 1056; see also Brown-
6 Hunter, 806 F.3d at 492 (ALJ’s erroneous failure to specify reasons for rejecting
7 claimant testimony “will usually not be harmless”).
8 B. Plaintiff’s Statements
9 Plaintiff testified that she experiences constant pain in her whole body. (AR
10 57-58). The pain eases some with medications, such as Norco, or with “Icy Hot”
11 patches on her back. (AR 58). She stated that she also has numbness and tingling
12 in her hands, feet, toes, shoulders, and neck. (AR 58). About four times a month,
13 she gets “severe migraines” lasting four to five days, which are helped by
14 medication. (AR 58-59). Plaintiff testified that she can sit for about twenty
15 minutes before needing to get up for a few minutes, and can stand or walk for
16 about thirty minutes before needing to sit. (AR 60-61). She stated she can lift
17 only three or four pounds, and has a hard time holding things in her hands. (AR
18 61).
19 Plaintiff also testified that she lives alone in a small cabin with four
20 Chihuahuas, and generally does not leave her home except to go to the doctor or to
21 the grocery store about once a month. (AR 62-63, 65). She tends to isolate herself
22 and cry a lot. (AR 62). She stated that she has difficulty concentrating and has
23 “very bad memory problems,” requiring her to “write everything down.” (AR 63).
24 She stated that the medications help with her anxiety and depression. (AR 63).
25 Plaintiff testified that she cooks and does some cleaning, such as sweeping,
26 mopping, and dish-washing, but with some difficulty. (AR 65-67). She stated she
27 bathes without difficulty, but has a hard time getting in and out of the shower.
28 ///
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1 (AR 65-66). She brushes her hair and dresses herself when she goes out. (AR
2 66). At night, she does “painting with diamonds” to keep herself busy. (AR 68).
3 C. ALJ’s Assessment
4 The ALJ reviewed the record and found that plaintiff’s medically
5 determinable impairments could reasonably be expected to cause the alleged
6 symptoms, but determined that plaintiff’s statements about the intensity,
7 persistence, and limiting effects of the symptoms were “not entirely consistent
8 with the medical evidence and other evidence in the record for the reasons
9 explained in th[e] decision.” (AR 34, 36).
10 As support, the ALJ found that plaintiff’s statements were not
11 “corroborate[d]” by the objective medical evidence in the record. (AR 36).
12 Specifically, the ALJ noted that plaintiff “ambulated with a normal gait and did
13 not use an assistive device,” despite her complaints of numbness and tingling in
14 her extremities. (AR 36) (citing AR 749-50, 811, 1154). The ALJ also found
15 plaintiff had no problems with coordination and was “able to perform tandem gait,
16 which would be exceedingly difficult for an individual with any type of gait
17 disturbance.” (AR 36-37). Moreover, the ALJ pointed to stable findings from
18 diagnostic testing in 2017 and 2018, with “no evidence of new enhancing lesions.”
19 (AR 37) (citing AR 980, 998). The ALJ further observed that there was “no
20 objective evidence of impaired memory recall or difficulty maintaining focus as
21 indicated by [plaintiff] at the hearing.” (AR 37).
22 Aside from objective medical evidence, the ALJ noted that plaintiff had
23 been “tolerating her medication well” (AR 37) (citing AR 998), and that plaintiff
24 “admitted,” in July 2018, “that she was benefitting from her medication” and was
25 “more functional.” (AR 37) (citing AR 1012). Furthermore, the ALJ found that,
26 despite plaintiff’s “allegations of totally disabling symptoms,” her treating
27 neurologist did not recommend any restrictions in the treatment notes. (AR 37).
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1 Based on the ALJ’s overall assessment of the record, the ALJ concluded
2 that plaintiff had the RFC to perform light work with the following restrictions:
3 [Plaintiff] can lift and/or carry 20 pounds occasionally and less than
4 10 pounds frequently; can stand and/or walk for six hours out of an
5 eight hour workday with regular breaks with the option to change
6 positions at the workstation; can sit for six hours out of an eight-hour
7 workday with regular breaks with the option to change positions at
8 the workstation; can frequently push and/or pull with the upper and
9 lower extremities within the weight limits mentioned above; can
10 occasionally climb ramps and stairs but can never climb ladders,
11 ropes, or scaffolds; can occasionally balance and stoop; cannot kneel
12 or crawl; can occasionally crouch; can frequently handle bilaterally;
13 can frequently feel and finger bilaterally; must avoid concentrated
14 exposure to heat, wetness, vibratory tools and instruments,
15 unprotected machinery, and unprotected heights; and must work in an
16 air conditioned environment.
17 (AR 33).
18 D. Analysis
19 The ALJ’s stated reasons for discounting plaintiff’s testimony are not
20 specific, clear and convincing. First, to the extent that the ALJ relied on a lack of
21 objective medical evidence, as plaintiff points out, this is not a sufficient basis, in
22 itself, to reject a claimant’s testimony, although it may be a relevant factor.3 See,
23 e.g., Burch, 400 F.3d at 681 (“Although lack of medical evidence cannot form the
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3Furthermore, even if the ALJ’s assessment of the medical evidence may be reasonable in
27 itself, it is nonetheless notable that the ALJ did not identify any evidence that affirmatively
undermined or contradicted plaintiff’s testimony regarding her limited abilities, such as her
28 limitations in sitting, standing, walking, and lifting.
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1 sole basis for discounting pain testimony, it is a factor that the ALJ can consider in
2 his credibility analysis.”).
3 Aside from the medical evidence, the ALJ’s only other express grounds for
4 rejecting the testimony were that (1) plaintiff reported some improvement with
5 medication, and (2) the treatment notes of plaintiff’s neurologist did not contain
6 any recommended restrictions.4 (AR 37). As for the latter ground, plaintiff’s
7 treating neurologist did not provide a medical opinion in the record. Although the
8 ALJ reasoned that if plaintiff was as limited as alleged, “one might expect to see
9 some indication in the treatment records of restrictions placed on [plaintiff] by her
10 treating neurologist,” the lack of such indication does not mean that the
11 neurologist believed plaintiff had no restrictions. Nor is it equivalent to a medical
12 opinion as such.
13 Otherwise, as support for finding that plaintiff’s medications helped, the
14 ALJ pointed to one treatment note stating plaintiff was “on Tysabri which she is
15 tolerating well” (AR 998), and another treatment note stating plaintiff “[f]eels that
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17 4Defendant asserts that the ALJ’s assessment of plaintiff’s testimony was also based on
“treatment notes indicating that [p]laintiff declined to participate in physical therapy” and the
18 ALJ’s observations of plaintiff’s “demeanor at the hearing that displayed her ability to remember
and focus despite her allegations to the contrary.” (Defendant’s Opposition at 5). However, this
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is not reflected in the ALJ’s decision. For example, when summarizing the medical records, the
20 ALJ briefly noted plaintiff “declined physical therapy” (AR 34; see AR 821), but the ALJ never
mentioned this as a basis for discounting plaintiff’s allegations. See Lambert v. Saul, ___ F.3d
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___, No. 19-17102, 2020 WL 6735633, at *10 (9th Cir. Nov. 17, 2020) (“Although the ALJ did
22 provide a relatively detailed overview of [the claimant’s] medical history, ‘providing a summary
of medical evidence . . . is not the same as providing clear and convincing reasons for finding the
23 claimant’s symptom testimony not credible.’”) (quoting Brown-Hunter, 806 F.3d at 494);
24 Brown-Hunter, 806 F.3d at 494 (“We are constrained to review the reasons the ALJ asserts.”).
The ALJ also never stated that his observations of plaintiff at the hearing were a basis for the
25 assessment. Instead, in discussing how plaintiff’s testimony was not “corroborate[d]” by the
“objective medical evidence,” the ALJ stated there was “no objective evidence of impaired
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memory recall or difficulty maintaining focus as indicated by [plaintiff] at the hearing.” (AR 37).
27 Contrary to defendant’s view, this statement simply refers to the fact that plaintiff had “indicated
. . . at the hearing” that she had difficulty with memory recall and maintaining focus, and the ALJ
28 found no “objective evidence” in the record to support this.
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1 || she is benefitting from the pain med [Norco] as it makes her more functional and
2 || is able to better operate her day...” (AR 1012). Plaintiff, in fact, testified that
3 || her pain medications helped ease the pain, to some degree, so the ALJ’s
4 || observation here is merely consistent with that testimony. (AR 58). However, as
5 || plaintiff contends, improved functioning does not equate with an ability to
6 | function effectively in a workplace. (Plaintiff's Motion at 11-12). Indeed,
7 || notwithstanding this improvement from medication, plaintiff also testified that the
8 || pain persisted and her physical abilities were still limited. (See AR 57-61).
9 || Because the ALJ failed to point to any evidence that undermines or contradicts
10 | any of plaintiff's testimony, this is not a clear and convincing basis to reject her
11 || subjective statements. See Lambert v. Saul, F.3d , No. 19-17102, 2020
12 | WL 6735633, at *10 (9th Cir. Nov. 17, 2020) (“[O]ur precedents plainly required
13 || the ALJ to do more than was done here, which consisted of offering non-specific
14 || conclusions that [the claimant’s] testimony was inconsistent with her medical
15 | treatment.” (citing Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014));
16 || Brown-Hunter, 806 F.3d at 494 (“We cannot review whether the ALJ provided
17 || specific, clear, and convincing reasons for rejecting [the claimant’s] pain
18 || testimony where, as here, the ALJ never identified which testimony she found not
19 || credible, and never explained which evidence contradicted that testimony.”).
20 | ///
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*In Lambert, the ALJ rejected the claimant’s testimony based on four reasons: First,
23 || Lambert had “not generally received the type of medical treatment one would expect for a totally
74 disabled individual.” Second, the “record reflect[ed] significant gaps in [her] history of treatment
and relatively infrequent trips to the doctor for the allegedly disabling symptoms.” Third,
25 || Lambert’s “use of medications [did] not suggest the presence of impairments which [were] more
6 limiting than found in th[e] decision.” Finally, “medications ha[d] been relatively effective in
controlling [her] symptoms.” Lambert, 2020 WL 6735633, at *3. The Ninth Circuit held that
27 || these “four high-level reasons” were not clear and convincing reasons to reject the claimant’s
testimony because the ALJ never specified which testimony conflicted with the record evidence.
28 Id. at *10.
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1 Accordingly, the ALJ erred by failing to provide specific, clear, and
2 convincing reasons to discount plaintiff’s subjective statements. Remand is
3 warranted for reconsideration of these statements.
4 V. CONCLUSION
5 For the foregoing reasons, the decision of the Commissioner of Social
6 Security is REVERSED and this matter is REMANDED for further administrative
7 action consistent with this Opinion.6
8 LET JUDGMENT BE ENTERED ACCORDINGLY.
9 DATED: November 27, 2020
10 _____________/s/____________________
Honorable Jacqueline Chooljian
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UNITED STATES MAGISTRATE JUDGE
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25 6When a court reverses an administrative determination, “the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation.”
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Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and
27 quotations omitted); Treichler, 775 F.3d at 1099 (noting such “ordinary remand rule” applies in
Social Security cases) (citations omitted). The Court has determined that a reversal and remand
28 for immediate payment of benefits would not be appropriate.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10039602. Public record. Not legal advice.