in 25 assessing claimant’s credibility, ALJ may properly rely on 26 “unexplained or inadequately explained failure to seek treatment or to 27 follow prescribed course of treatment”
How later courts described this case
- in 25 assessing claimant’s credibility, ALJ may properly rely on 26 “unexplained or inadequately explained failure to seek treatment or to 27 follow prescribed course of treatment”
- the ALJ 11 must “specifically identify the testimony [the ALJ] finds not to be 12 credible and must explain what evidence undermines the testimony”
- a court need 19 not “credit as true” improperly rejected claimant testimony where 20 there are outstanding issues that must be resolved before a proper 21 disability determination can be made
- the court “cannot affirm the decision of an agency on a 28 1 Plaintiff could perform (A.R. 106
Written by the judges who cited it.
The opinion
1
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7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 Dung T. N., ) NO. SA CV 20-975-E
)
12 Plaintiff, )
)
13 v. ) MEMORANDUM OPINION
)
14 COMMISSIONER OF SOCIAL SECURITY ) AND ORDER OF REMAND
ADMINISTRATION, )
15 )
Defendant. )
16 ___________________________________)
17
18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS
19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary
20 judgment are denied, and this matter is remanded for further
21 administrative action consistent with this Opinion.
22
23 PROCEEDINGS
24
25 Plaintiff filed a complaint on May 27, 2020, seeking review of
26 the Commissioner’s denial of benefits. On June 18, 2020, the parties
27 consented to proceed before a United States Magistrate Judge.
28 Plaintiff filed a motion for summary judgment on January 28, 2021.
1 Defendant filed a motion for summary judgment on April 7, 2021. The
2 Court has taken the motions under submission without oral argument.
3 See L.R. 7-15; “Order,” filed May 28, 2020.
4
5 BACKGROUND
6
7 Plaintiff seeks disability insurance benefits beginning May 17,
8 2015, based on allegations of back, arm and wrist pain, heart disease,
9 chronic chest pain, diabetes, major depressive disorder, anxiety
10 disorder and insomnia (Administrative Record (“A.R.”) 231-32, 254-55,
11 266, 308). Plaintiff’s last insured date was December 31, 2018 (A.R.
12 250).
13
14 An Administrative Law Judge (“ALJ”) reviewed the record and heard
15 testimony from Plaintiff and a vocational expert (A.R. 15-27, 75-
16 108).1 The ALJ found that Plaintiff has severe coronary artery
17 disease, status post coronary artery bypass graft in 2007, and severe
18 degenerative disc disease of the lumbar spine and cervical spine (A.R.
19 18). The ALJ found “nonsevere” Plaintiff’s carpal tunnel syndrome
20 (A.R. 18-19). The ALJ found that Plaintiff retains the residual
21 functional capacity to perform medium work with occasional climbing of
22 ramps/stairs and ladders/ropes/scaffolds, and occasional balancing,
23
24 1 Plaintiff had filed a previous application for
benefits, which was denied for a time period ending May 16,
25
2015 – the day before Plaintiff’s alleged onset date in the
26 present case. See A.R. 112-21 (prior ALJ’s adverse decision),
126-29 (Appeals Council’s prior denial of review). Although the
27 present ALJ found no changed circumstances, the ALJ proceeded
through the sequential analysis anew based on the updated record
28
1 stooping, kneeling, crouching and crawling. See A.R. 22-26 (giving
2 significant weight to the non-examining state agency physicians’
3 opinions, partial weight to a consultative examiner’s opinion, partial
4 weight to a qualified medical examiner’s opinion, and little or no
5 weight to the treating medical opinions). In finding this capacity,
6 the ALJ discounted Plaintiff’s testimony and statements regarding his
7 subjective symptomatology as “not entirely consistent with the medical
8 evidence and other evidence in the record” (A.R. 23).
9
10 The ALJ found Plaintiff capable of performing his asserted past
11 relevant work as a soils engineer (Dictionary of Occupational Titles
12 (“DOT”) 024.161-010) as generally performed (A.R. 27 (adopting
13 vocational expert’s testimony at A.R. 94-107)). Accordingly, the ALJ
14 denied benefits (A.R. 27). The Appeals Council denied review
15 (A.R. 1-3).
16
17 STANDARD OF REVIEW
18
19 Under 42 U.S.C. section 405(g), this Court reviews the
20 Administration’s decision to determine if: (1) the Administration’s
21 findings are supported by substantial evidence; and (2) the
22 Administration used correct legal standards. See Carmickle v.
23 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,
24 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,
25 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such
26 relevant evidence as a reasonable mind might accept as adequate to
27 support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
28 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454
1 F.3d 1063, 1067 (9th Cir. 2006).
2
3 If the evidence can support either outcome, the court may
4 not substitute its judgment for that of the ALJ. But the
5 Commissioner’s decision cannot be affirmed simply by
6 isolating a specific quantum of supporting evidence.
7 Rather, a court must consider the record as a whole,
8 weighing both evidence that supports and evidence that
9 detracts from the [administrative] conclusion.
10
11 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and
12 quotations omitted).
13
14 DISCUSSION
15
16 Plaintiff contends, inter alia, that the ALJ erred in the
17 evaluation of Plaintiff’s testimony and statements regarding
18 Plaintiff’s subjective symptoms and claimed limitations. For the
19 reasons discussed below, the Court agrees.
20
21 I. Summary of the Medical Record
22
23 The medical record consists mostly of reports related to
24 Plaintiff’s workers’ compensation claim(s) and several actual
25 treatment notes. Workers’ compensation physician Dr. Gary P. Jacobs
26 prepared two Internal Medicine Evaluation Reports dated April 29, 2015
27 (A.R. 385-89). Plaintiff had complained of pain in his low back, arm,
28 chest and wrist, heartburn, gastrointestinal issues, headaches,
1 depression, anxiety, insomnia, difficulty with ramps, stairs, and
2 rising from a seated position, difficulty with above-the-shoulder
3 activities and numbness and tingling in his extremities (A.R. 385,
4 387). Dr. Jacobs diagnosed chest pain and hypertension, and Dr.
5 Jacobs deferred any orthopedic diagnosis, and any work status
6 evaluation, to Plaintiff’s primary treating physician (A.R. 386, 388).
7
8 Qualified Medical Examiner (“QME”) Dr. Norman Nakata reviewed
9 medical records and prepared a summary and an evaluation dated
10 June 13, 2015 (A.R. 390-402). Plaintiff had complained of stiffness
11 and pain in his cervical spine and lower back, headaches, weakness in
12 both hands, numbness and decreased feeling in his fingers, an
13 inability to sit longer than 30 minutes at a time, stand longer than
14 five minutes at a time, walk longer than 30 minutes at a time, and
15 lift 10 or more pounds (A.R. 396). Plaintiff had high blood pressure,
16 atherosclerotic heart disease and had undergone cardiac surgery (A.R.
17 396). On examination, Plaintiff had tenderness along his sternal
18 incision scar and in his cervical spine and shoulders, strength of 4/5
19 in the left hand and 5/5 in the right hand, positive carpal tunnel
20 signs and decreased sensation in the hands (A.R. 397-99). Dr. Nakata
21 diagnosed cervical and lumbar strain, degenerative disease of the
22 cervical and lumbar spine, overuse syndrome and tendinitis in both
23 hands and wrists, and bilateral carpal tunnel syndrome (left greater
24 than right) (A.R. 400). Dr. Nakata recommended an EMG/nerve
25 conduction study of Plaintiff’s bilateral upper extremities (A.R. 400,
26 403). Dr. Nakata prepared a supplemental report dated October 28,
27 2015, opining that Plaintiff is precluded from heavy work and from
28 repetitive bending and stooping (A.R. 584-91).
1 Workers’ compensation physician Dr. Nimish Shah reviewed the
2 record and prepared a Primary Treating Physician’s Narrative
3 Reevaluation Report dated June 17, 2015 (A.R. 410-32). Plaintiff had
4 complained of neck pain radiating to the upper extremities with
5 tingling, numbness, weakness, cramps and burning, bilateral wrist and
6 hand pain, constant low back pain radiating to the lower extremities
7 with tingling, numbness and pain, and sternal pain related to lifting
8 (A.R. 410-11). On examination, Plaintiff had slow, guarded gait,
9 tenderness in the cervical spine, tenderness in the low back, positive
10 straight leg raising, inability to walk on toes and heels, positive
11 carpal tunnel compression testing with positive Tinel’s sign and
12 Phalen’s test, tenderness to the chest scar, grip strength of 20
13 pounds or less, hypoalgesia at C6-C7 and L5-S1, and mild weakness in
14 the upper and lower extremities (A.R. 419-21). Dr. Shah diagnosed:
15 (1) possible cervical and lumbar sprain/strain with discogenic and
16 facet pain at C2-C3, C5-C6, L4-L5 and L5-S1; (2) possible bilateral
17 carpal tunnel syndrome versus bilateral upper extremity pain related
18 to cervical radiculopathy versus “double crush syndrome”;
19 (3) bilateral lumbosacral radicular pain; (4) keloid formation on the
20 chest surgery scar with tenderness; and (5) stress syndrome (anxiety,
21 depression, insomnia) (A.R. 422). Dr. Shaw extended Plaintiff’s
22 temporary total disability through October 31, 2015 (A.R. 429, 457,
23 484, 515).
24
25 Psychologist/QME Dr. Nelson J. Flores prepared a Comprehensive
26 Permanent and Stationary Psychological Evaluation Report/Medical
27 Records Review dated September 24, 2015 (A.R. 522-73). Dr. Flores
28 diagnosed major depressive disorder (single episode, mild),
1 generalized anxiety disorder, male hypoactive sexual desire disorder
2 due to chronic pain, insomnia, stress-related physiological response
3 affecting gastric disturbances, high blood pressure and headaches,
4 which Plaintiff developed subsequent to work “overload,” stress and
5 harassment in the workplace and chronic pain from work injuries (A.R.
6 525). On mental status examination, Plaintiff was cooperative,
7 although sad, anxious, apprehensive, tense and preoccupied with
8 physical symptoms and financial circumstances (A.R. 539-40).
9 Plaintiff’s concentration was sometimes deficient (A.R. 540). Dr.
10 Flores assessed a Global Assessment of Functioning (“GAF”) score of 58
11 (A.R. 544).2 Dr. Flores opined that Plaintiff should not be placed in
12 any work position where he could be at risk for industrial accident if
13 he becomes anxious and/or distracted, and Plaintiff should not work in
14 a position where he is required to handle stress and/or conflicts on a
15 regular basis while interacting with the public and/or coworkers (A.R.
16 552).
17
18 Dr. Nhan Nguyen treated Plaintiff with medications for
19 hypertension, diabetes and hyperlipidemia from October of 2014 through
20 August of 2015 (A.R. 332-33). Dr. Nguyen’s treatment records are not
21 detailed.
22 ///
23
24 2 The GAF scale is used by clinicians to report an
individual’s overall level of functioning. See American
25
Psychological Association, Diagnostic and Statistical Manual of
26 Mental Disorders 34 (4th ed. 2000). A GAF of 51-60 indicates
“[m]oderate symptoms (e.g., flat affect and circumstantial
27 speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning (e.g., temporarily
28
1 Dr. Tuan Nguyen treated Plaintiff periodically from November of
2 2015 through at least January of 2019, with medications for diabetes,
3 coronary artery disease, exertional chest pain, shortness of breath
4 and hypertension (A.R. 361-64, 620-79). In May of 2017, Plaintiff
5 reportedly was “clinically stable” (A.R. 636). By October of 2017,
6 Plaintiff reported that he was doing well, with no active complaints
7 or cardiac symptoms (A.R. 629). In April of 2018, Plaintiff reported
8 that he could walk daily without chest pain, shortness of breath or
9 dyspnea on exertion (A.R. 633). In August of 2018, Plaintiff
10 reportedly was able to complete basic activities of daily living
11 without cardiopulmonary exertional symptoms (A.R. 643). In January of
12 2019, however, Dr. Nguyen treated Plaintiff for shortness of breath
13 (A.R. 361-64, 676-79). Plaintiff then complained of a history of
14 asthma with worsening “SOB” (shortness of breath), “DOE” (dyspnea on
15 exertion), and worsening bilateral hand tremor right more than left
16 (A.R. 361). An EKG reportedly was normal, and Plaintiff was referred
17 for an echocardiogram and to neurology for a Parkinson’s Disease
18 evaluation (A.R. 363-64).
19
20 Dr. Tuan Nguyen completed a Cardiac Residual Functional Capacity
21 Questionnaire dated January 31, 2019 (A.R. 365-69). Dr. Nguyen
22 diagnosed “CAD” (coronary artery disease) and “CHF” (congestive heart
23 failure) with “NYHA Class 3" (New York Heart Association
24 Classification), based on echo testing and Plaintiff’s history of
25 heart surgery (A.R. 365). Dr. Nguyen reported that Plaintiff has
26 “substantial” chest pain exacerbated with exertion (A.R. 365). Dr.
27 Nguyen indicated that Plaintiff has marked limitations of physical
28 activity, is capable of a low stress job, but frequently would have
1 symptoms severe enough to interfere with his attention and
2 concentration (A.R. 365-66).
3
4 Dr. Tuan Nguyen also completed a Pulmonary Residual Functional
5 Capacity Questionnaire dated July 31, 2019 (A.R. 371-75). Dr. Nguyen
6 diagnosed asthma with shortness of breath, chest tightness, rhonchi,
7 episodic acute asthma and fatigue, with asthma attacks three times a
8 year for 1-3 days precipitated by upper respiratory infection,
9 allergens, exercise, irritants and cold air/change in weather (A.R.
10 371-72). Dr. Nguyen again indicated that Plaintiff’s symptoms would
11 frequently interfere with his attention and concentration, but
12 Plaintiff would be capable of low stress jobs (A.R. 372).
13
14 In both residual functional capacity questionnaires, Dr. Nguyen
15 opined that, since November of 2016, Plaintiff: (1) could lift less
16 than 10 pounds; (2) could walk less than one block without rest or
17 severe pain; (3) could sit and stand/walk for less than two hours each
18 in an eight-hour workday; (4) could frequently twist, stoop,
19 crouch/squat, climb ladders and stairs; (5) would need to shift
20 positions at will from sitting, standing or walking; (6) would need to
21 take unscheduled breaks to lie down every two hours for 15 minutes;
22 and (7) would need to avoid all exposure to cigarettes, soldering
23 fluxes, solvents, cleaners, fumes, odors, gases, dust and chemicals
24 (A.R. 367-69, 373-75).
25
26 Dr. Vuong Nguyen and Physician’s Assistant (“PA”) Hong An Pham
27 treated Plaintiff with medications for diabetes, hypertension,
28 hyperlipidemia, coronary artery disease, exertional chest pain,
1 shortness of breath, and dyspnea on exertion from August of 2018
2 through at least January of 2019 (A.R. 660-79). Plaintiff’s
3 medications included Flovent, Albuterol, Pseudoephedrine, Flonase,
4 Zyrtec, Vascepa, Metformin, Lisonopril, Atorvastatin, Isosorbide
5 mononitrate and Metroprolol (A.R. 664). In January of 2019, Plaintiff
6 complained of fatigue, muscle weakness and chest pain on exertion and
7 with heavy lifting (A.R. 664). Plaintiff returned later in January
8 with disability forms to be completed, at which time his physical
9 examination findings reportedly were within normal limits (A.R. 666).
10
11 PA Pham completed a Physical Residual Functional Capacity
12 Questionnaire dated February 7, 2019 (A.R. 377-83). PA Pham
13 reportedly had treated Plaintiff every three months and as needed for
14 “CAD” (coronary artery disease), “SOB” (shortness of breath) on
15 exertion, insomnia, back pain with radiculopathy, diabetes,
16 hypertension, hyperlipidemia, fatigue, weakness and chest pain, for
17 which Plaintiff has a guarded prognosis (A.R. 377-78). Plaintiff
18 reportedly had generalized weakness and fatigue and therefore could
19 not walk or stand for long periods of time or lift more than 10 pounds
20 (A.R. 377). PA Pham reported that Plaintiff has limited range of
21 motion, muscle spasm, reflex changes, muscle weakness, impaired sleep,
22 grip strength of less than 10 pounds, depression and anxiety (A.R.
23 378-79). PA Pham opined that Plaintiff’s symptoms frequently would
24 interfere with his attention and concentration (A.R. 379). PA Pham
25 opined that Plaintiff: (1) could rarely lift less than 10 pounds;
26 (2) could sit for 10 minutes at a time and stand for five minutes at a
27 time; (3) could sit and stand/walk less than two hours each per day;
28 (4) would need to walk every 10 minutes; (5) must be able to shift
1 positions at will from sitting, standing and walking; (6) must take
2 unscheduled breaks every two hours for 30 minutes; (7) must elevate
3 his legs at all times; (8) must use a cane or other assistive device
4 when standing/walking; (9) could rarely look down or up, or turn his
5 head right or left or hold his head in a static position; (10) could
6 rarely twist, stoop, crouch/squat or climb stairs and could never
7 climb ladders; (11) could occasionally use his hands for reaching,
8 handling, fingering, etc., and could occasionally use his feet (A.R.
9 380-83). PA Pham opined that Plaintiff would miss more than four days
10 of work per month (A.R. 383).
11
12 Meanwhile, consultative examiner Dr. Ernest A. Bagner, III, a
13 psychiatrist, prepared a Complete Psychiatric Evaluation dated
14 February 15, 2017 (A.R. 336-39). Dr. Bagner did not review any
15 medical records (A.R. 337). Plaintiff reported a history of
16 depression, anger, anxiety, tiredness and weakness, trouble
17 concentrating, memory problems, heart problems status post heart
18 attack with open heart surgery, diabetes, high blood pressure and
19 arthritis (A.R. 336). Plaintiff reported that he walks around,
20 watches television, makes very simple meals and can dress and bathe
21 independently (A.R. 337-38). On mental status examination, Plaintiff
22 was cooperative, although he appeared angry, had rapid speech, could
23 not recall any of three objects in five minutes, and could not spell
24 “world” (A.R. 338-39). Dr. Bagner diagnosed a mood disorder (not
25 otherwise specified), and assigned a GAF of 60 with a fair prognosis
26 (A.R. 339). Dr. Bagner opined that Plaintiff would have moderate
27 limits in following detailed instructions, interacting appropriately
28 with coworkers, supervisors and the public, and responding to work
1 pressures, and he would have mild limits in his daily activities and
2 in his ability to follow simple instructions, comply with job rules
3 such as safety rules and attendance rules and respond to changes in
4 the work setting (A.R. 339).
5
6 Consultative examiner Dr. Jay Dhiman prepared an Internal
7 Medicine Evaluation dated March 22, 2017 (A.R. 342-47). It is not
8 clear whether Dr. Dhiman reviewed any medical records as part of his
9 evaluation. Plaintiff reportedly complained of radiating low back
10 pain since 2013 from heavy lifting at work, a history of open heart
11 surgery in 2007, and diabetes since 2004 (A.R. 342-43). Plaintiff
12 denied exertional chest pain and said he has occasional chest pain
13 with bending and movement (A.R. 343). On examination, Plaintiff had a
14 grip strength of 10 pounds on the right and five pounds on the left,
15 tenderness in the lower lumbar spine at midline with limited range of
16 motion, tenderness of the costochondral joints bilaterally, and
17 otherwise normal findings (A.R. 343-46; see also A.R. 349 (lumbar
18 spine x-ray which showed evidence of moderate hypertrophic changes in
19 the lumbar spine with decrease in the L4-L5 disc level)). Dr. Dhiman
20 observed that Plaintiff had a history of myocardial infarction status
21 post surgery (erroneously referenced as “status post cabbage”), a
22 history of diabetes, and tenderness on examination (A.R. 346). Dr.
23 Dhiman did not make any diagnosis (A.R. 346). Dr. Dhiman opined that
24 Plaintiff would be capable of medium work with no sitting limits or
25 reaching/manipulation limits, but with no more than frequent bending,
26 crouching and stooping (A.R. 346).
27 ///
28 ///
1 State agency physicians reviewed the medical record in April and
2 August of 2017 (A.R. 130-55). These physicians opined that, although
3 Plaintiff suffered from severe degenerative disc disease, he is
4 capable of medium work with occasional postural limits (A.R. 130-55
5 (assertedly giving great weight to the consultative examiners’
6 opinions)).3
7
8 II. The ALJ Materially Erred in the Evaluation of Plaintiff’s
9 Testimony and Statements Regarding Plaintiff’s Subjective
10 Symptomatology and Claimed Limitations.
11
12 Plaintiff testified that he stopped working as a soil tester
13 because he no longer has sufficient lifting strength and because he
14 has heart problems, chest pain, asthma and “COPD” (chronic obstructive
15 pulmonary disease) (A.R. 81-85). More specifically, Plaintiff stated
16 that he has: (1) chest pain that worsens when he lifts heavy objects,
17
18 3 As noted above, in determining Plaintiff’s residual
functional capacity, the ALJ gave: (1) “significant” weight to
19 the state agency physicians’ opinions finding Plaintiff capable
of medium work (A.R. 25); (2) “partial” weight to Dr. Dhiman’s
20 opinion finding Plaintiff capable of medium work limited to no
more than frequent bending, crouching and stooping (A.R. 25);
21
(3) “partial” weight to QME Nakata’s opinion that Plaintiff is
22 precluded from heavy work and repetitive bending and stooping
(A.R. 26); (4) “little” weight to Dr. Tuan Nguyen’s opinion
23 finding Plaintiff capable of “less than sedentary work” as
assertedly not consistent with the evidence as a whole (A.R. 26);
24 (5) “little” weight to PA Pham’s opinion finding Plaintiff
capable of “less than sedentary work” as assertedly not
25
consistent with the evidence and because a physician’s assistant
26 is not an acceptable medical source (A.R. 26); (6) “little”
weight to Dr. Bagner’s consultative examiner opinion that
27 Plaintiff has mental limitations (A.R. 20-21); and (7) no weight
to Dr. Flores’ opinion that Plaintiff has mental limitations
28
1 climbs stairs or walks too far; (2) neck pain which keeps him from
2 looking up too long; (3) nerve damage in his arm that prevents him
3 from writing a whole page; (4) some problems holding onto objects and
4 using his hands; and (5) back pain which limits sitting to 20 minutes,
5 standing to ten minutes and walking to two or three blocks (A.R. 86-
6 87, 91-92). Plaintiff also testified that he suffers from depression,
7 which limits his socializing and concentration and which also
8 manifests in problems such as losing his way home and being unable to
9 follow a story when reading or watching television (A.R. 88-90).
10
11 In a Function Report - Adult form dated January 30, 2017,
12 Plaintiff reported that he had chronic pain preventing him from
13 lifting over 10 pounds, standing more than 10 minutes, or walking more
14 than 1/10 of a mile without rest, and that his condition prevented him
15 from paying attention for more than two minutes (A.R. 266-74).
16 Plaintiff reported that he spent his days walking “a little,” lying
17 down, making sandwiches or frozen dinners and doing laundry (for “4-5
18 min.”) (A.R. 267-69). Plaintiff reported he had no problems with his
19 own personal care, but indicated he almost never went outside, other
20 than for groceries (A.R. 267, 269).
21
22 The ALJ discounted Plaintiff’s testimony and statements as
23 assertedly “not entirely consistent with the medical evidence and
24 other evidence in the record” (A.R. 23). The ALJ stated that
25 Plaintiff’s assertions were “inconsistent with the evidence as a
26 whole,” which reportedly showed an “unremarkable” physical
27 examination, normal heart and lung functioning and no evidence of
28 neurological deficits, shortness of breath, or any need for an
1 assistive device to ambulate (A.R. 23-26). The ALJ also observed that
2 Plaintiff has been treated with pain medications, which reportedly had
3 given Plaintiff “some improvement,” that Plaintiff’s heart condition
4 assertedly was “stable,” and it “appear[ed]” that Plaintiff’s
5 degenerative disc disease and coronary artery disease were “generally”
6 “stable with medication” (A.R. 24-25).
7
8 Elsewhere in the ALJ’s written decision, the ALJ stated:
9 (1) there assertedly was no evidence Plaintiff had decreased ability
10 to use his hands and Plaintiff reportedly was able to prepare simple
11 meals, do laundry, and manage his personal care without assistance
12 (A.R. 19 (citing A.R. 267 (Function Report - Adult form)); and
13 (2) there assertedly was no evidence that Plaintiff continued to seek
14 mental health treatment after his workers’ compensation case was
15 resolved (A.R. 20). Thus, construing the ALJ’s decision liberally, it
16 appears that the ALJ discounted Plaintiff’s subjective testimony and
17 statements based on Plaintiff’s admitted daily activities, Plaintiff’s
18 failure to seek mental health treatment after his workers’
19 compensation case resolved, and asserted inconsistencies between
20 Plaintiff’s subjective complaints and the medical record, including
21 the medical treatment record.
22
23 Where, as here, an ALJ finds that a claimant’s medically
24 determinable impairments reasonably could be expected to cause some
25 degree of the alleged symptoms of which the claimant subjectively
26 complains (A.R. 23), any discounting of the claimant’s complaints must
27 be supported by “specific, cogent” findings. See Berry v. Astrue, 622
28 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834
1 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th
2 Cir. 1996) (indicating that ALJ must state “specific, clear and
3 convincing” reasons to reject a claimant’s testimony where there is no
4 evidence of malingering).4 Generalized, conclusory findings do not
5 suffice. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004)
6 (the ALJ’s credibility findings “must be sufficiently specific to
7 allow a reviewing court to conclude the ALJ rejected the claimant’s
8 testimony on permissible grounds and did not arbitrarily discredit the
9 claimant’s testimony”) (internal citations and quotations omitted);
10 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ
11 must “specifically identify the testimony [the ALJ] finds not to be
12 credible and must explain what evidence undermines the testimony”);
13 Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically
14 which symptom testimony is not credible and what facts in the record
15 lead to that conclusion.”); see also Social Security Ruling (“SSR”)
16 ///
17 ///
18 ///
19
4 In the absence of an ALJ’s reliance on evidence of
20 “malingering,” most recent Ninth Circuit cases have applied the
“clear and convincing” standard. See, e.g., Leon v. Berryhill,
21
880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806
22 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d
1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775
23 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154,
1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995,
24 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000
WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting
25
earlier cases). In Ahearn v. Saul, 988 F.3d 1111, 1116 (9th Cir.
26 2021), the Ninth Circuit appeared to apply both the “specific,
cogent” standard and the “clear and convincing” standard. In the
27 present case, the ALJ’s findings are insufficient under either
standard, so the distinction between the two standards (if any)
28
1 96-7p (explaining how to assess a claimant’s credibility), superseded,
2 SSR 16-3p (eff. March 28, 2016).5
3
4 The ALJ’s stated reasons for discounting Plaintiff’s subjective
5 testimony and statements are legally insufficient. Turning first to
6 Plaintiff’s daily activities, inconsistencies between admitted daily
7 activities and claimed incapacity properly may impugn the accuracy of
8 a claimant’s testimony and statements under certain circumstances.
9 See, e.g., Thune v. Astrue, 499 Fed. App'x 701, 703 (9th Cir. 2012)
10 (ALJ properly discredited pain allegations as contradicting claimant’s
11 testimony that she gardened, cleaned, cooked, and ran errands);
12 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008)
13 (claimant’s “normal activities of daily living, including cooking,
14 house cleaning, doing laundry, and helping her husband in managing
15 finances” provided sufficient explanation for discounting claimant’s
16 testimony). Yet, it is difficult to reconcile Ninth Circuit opinions
17 discussing when a claimant’s admitted activities may and may not
18 justify a discounting of the claimant's testimony and statements.
19 Compare Stubbs-Danielson v. Astrue with Vertigan v. Halter, 260 F.3d
20 1044, 1049-50 (9th Cir. 2001) (“the mere fact that a plaintiff has
21 carried on certain daily activities, such as grocery shopping, driving
22
23 5 Social Security Rulings (“SSRs”) are binding on the
Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1
24 (9th Cir. 1990). The appropriate analysis under the superseding
SSR is substantially the same as the analysis under the
25
superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7
26 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16-3p “implemented a
change in diction rather than substance”) (citations omitted);
27 see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir.
2017) (suggesting that SSR 16–3p “makes clear what our precedent
28
1 a car, or limited walking for exercise, does not in any way detract
2 from her credibility as to her overall disability”); see also Diedrich
3 v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017) (daily activities
4 of cooking, cleaning, vacuuming, washing dishes, shopping and cleaning
5 a cat’s litter box insufficient to discount the claimant’s subjective
6 complaints).
7
8 In the present case, Plaintiff’s limited admitted daily
9 activities do not significantly undermine his subjective complaints.
10 Although Plaintiff reported no difficulty with personal care and
11 indicated that he could make sandwiches or frozen meals and do laundry
12 for a few minutes at a time, none of these activities necessarily
13 contradict Plaintiff’s claimed inability to function as required in a
14 work setting, including a claimed inability to use his hands
15 sufficiently to work at a job. Thus, Plaintiff’s limited admitted
16 daily activities do not furnish a legally sufficient reason to
17 discount his subjective complaints. See Revels v. Berryhill, 874 F.3d
18 648, 667-68 (9th Cir. 2017).
19
20 With respect to Plaintiff’s asserted failure to seek mental
21 health treatment after his workers’ compensation case resolved, an ALJ
22 sometimes may discount a claimant’s allegations based on a claimant’s
23 failure to seek treatment or follow a prescribed course of treatment.
24 See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (in
25 assessing claimant’s credibility, ALJ may properly rely on
26 “unexplained or inadequately explained failure to seek treatment or to
27 follow prescribed course of treatment”). However, “it is a
28 questionable practice to chastise one with a mental impairment for the
1 exercise of poor judgment in seeking rehabilitation.” Nguyen v.
2 Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (citation omitted). In
3 this case, there is no suggestion that Plaintiff failed to follow
4 mental health treatment recommendations when treatment was available.
5 On this record, Plaintiff’s asserted failure to seek mental health
6 treatment after his workers’ compensation case resolved is not a
7 legally sufficient reason to reject Plaintiff’s testimony that his
8 depression causes him to have significant issues with concentration.
9
10 With respect to perceived inconsistencies between Plaintiff’s
11 subjective complaints and the objective medical record, such perceived
12 inconsistencies are not in themselves legally sufficient reasons for
13 discounting Plaintiff’s testimony and statements. An asserted lack of
14 objective medical evidence can be a factor in discounting a claimant’s
15 subjective complaints, but cannot “form the sole basis.” See Burch v.
16 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins v. Massanari, 261
17 F.3d 853, 857 (9th Cir. 2001). To the extent the ALJ stated other
18 reasons for rejecting Plaintiff’s testimony, as discussed above, those
19 other stated reasons are infirm. Thus, the ALJ’s reliance on any
20 alleged inconsistency between Plaintiff’s subjective complaints and
21 the objective medical evidence cannot properly support the ALJ’s
22 decision. See id.
23
24 Even if the law permitted an ALJ to rely solely on
25 inconsistencies between a claimant’s subjective complaints and the
26 objective medical evidence, the ALJ’s reasoning in the present case
27 would still be deficient. As summarized above, the medical record
28 includes diagnoses and examination findings consistent, rather than
1 inconsistent, with Plaintiff’s subjective complaints. Diagnoses
2 include cervical and lumbar strain, degenerative disc disease, overuse
3 syndrome and tendinitis of both hands and wrists, bilateral carpal
4 tunnel syndrome (left greater than right), asthma, shortness of
5 breath, chest tightness and rhonchi. Examination findings include
6 significant pain and limited range of motion, as well as positive test
7 results on straight leg raising and carpal tunnel testing. Thus,
8 Plaintiff’s subjective complaints are not necessarily inconsistent
9 with the objective medical evidence.6
10
11 The Court is unable to conclude that the ALJ’s failure to state
12 legally sufficient reasons for discounting Plaintiff’s subjective
13 complaints was harmless. “[A]n ALJ’s error is harmless where it is
14 inconsequential to the ultimate non-disability determination.” Molina
15 v. Astrue, 674 F.3d at 1115 (citations and quotations omitted). Here,
16 the vocational expert did testify that a person limited to light work
17 with occasional use of the hands and limited neck motion could perform
18 Plaintiff’s past relevant work as a soils engineer (A.R. 104–05; see
19 also DOT 024.161-010, Engineer, Soils, 1991 WL 646509 (4th Ed. R.
20 1991) (listing job requirements)). However, the vocational expert
21 also testified that, if Plaintiff were limited to sedentary work,
22 there would be no skills transferrable to sedentary work and no jobs
23 ///
24
25
6 To the extent Defendant may suggest additional reasons
26 not expressly specified by the ALJ for discounting Plaintiff’s
subjective complaints, the Court may not rely on any such
27 reasons. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir.
2001) (the court “cannot affirm the decision of an agency on a
28
1 Plaintiff could perform (A.R. 106).7 There is no substantial evidence
2 in the record that a person as limited as Plaintiff claims to be could
3 perform any job.
4
5 III. Remand is Appropriate.
6
7 Because the circumstances of this case suggest that further
8 administrative proceedings could remedy the ALJ’s errors, remand is
9 appropriate. See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011);
10 see generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of
11 an administrative determination, the proper course is remand for
12 additional agency investigation or explanation, except in rare
13 circumstances); Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017)
14 (reversal with a directive for the immediate calculation of benefits
15 is a “rare and prophylactic exception to the well-established ordinary
16 remand rule”); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015)
17 (“Unless the district court concludes that further administrative
18 proceedings would serve no useful purpose, it may not remand with a
19 direction to provide benefits”); Treichler v. Commissioner, 775 F.3d
20 1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative
21 proceedings is the proper remedy “in all but the rarest cases”);
22 Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531
23
24 7 A person of “advanced age” (i.e., over age 55) who is
limited to sedentary work, and who has a high school education
25
with no transferrable skills, is conclusively presumed to be
26 disabled under the Medical Vocational guidelines, 20 C.F.R. Pt.
404, Subpt. P, App. 2 (“the Grids”). See Grid Rule 201.06; see
27 also Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir. 1989) (a
conclusion of disability, directed by the Grids, is irrebutable).
28
1 U.S. 1038 (2000) (remand for further proceedings rather than for the
2 immediate payment of benefits is appropriate where there are
3 “sufficient unanswered questions in the record”); Connett v. Barnhart,
4 340 F.3d 871, 876 (9th Cir. 2003) (“Connett”) (remand is an option
5 where the ALJ fails to state sufficient reasons for rejecting a
6 claimant’s excess symptom testimony); but see Orn v. Astrue, 495 F.3d
7 625, 640 (9th Cir. 2007) (citing Connett for the proposition that
8 “[w]hen an ALJ’s reasons for rejecting the claimant’s testimony are
9 legally insufficient and it is clear from the record that the ALJ
10 would be required to determine the claimant disabled if he had
11 credited the claimant’s testimony, we remand for a calculation of
12 benefits”) (quotations omitted); see also Brown-Hunter v. Colvin, 806
13 F.3d 487, 495-96 (9th Cir. 2015) (discussing the narrow circumstances
14 in which a court will order a benefits calculation rather than further
15 proceedings); Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014)
16 (remanding for further proceedings where the ALJ failed to state
17 sufficient reasons for deeming a claimant’s testimony not credible);
18 Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (a court need
19 not “credit as true” improperly rejected claimant testimony where
20 there are outstanding issues that must be resolved before a proper
21 disability determination can be made). There are outstanding issues
22 that must be resolved before a proper disability determination can be
23 made in the present case.
24 ///
25 ///
26 ///
27 ///
28 ///
1 CONCLUSION
2
3 For all of the foregoing reasons,8 Plaintiff’s and Defendant’s
4 motions for summary judgment are denied and this matter is remanded
5 for further administrative action consistent with this Opinion.
6
7 LET JUDGMENT BE ENTERED ACCORDINGLY.
8
9 DATED: April 13, 2021.
10
11
/S/
12 CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
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8 The Court has not reached any other issue raised by
27 Plaintiff except insofar as to determine that reversal with a
directive for the immediate payment of benefits would not be
28