“[E]vidence of ‘conservative treatment’ is sufficient to 22 || discount a claimant’s testimony regarding severity of an impairment.”
How later courts described this case
- “[E]vidence of ‘conservative treatment’ is sufficient to 22 || discount a claimant’s testimony regarding severity of an impairment.”
- evidence that claimant “responded favorably to conservative treatment” 20 || inconsistent with plaintiff's reports of disabling pain
- “Although lack of medical evidence cannot form 12 the sole basis for discounting pain testimony, it is a factor that the ALJ can 13 consider in his credibility analysis.”
- ALJ’s erroneous failure to specify reasons for rejecting 11 claimant testimony “will usually not be harmless”
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11 DARNELLE C. M.,1 Case No. 5:20-cv-01119-JC
12 Plaintiff,
MEMORANDUM OPINION AND
13 v. ORDER OF REMAND
14
ANDREW SAUL, Commissioner of
15 Social Security Administration,
16 Defendant.
17
I. SUMMARY
18
On June 1, 2020, plaintiff Darnelle C. M. filed a Complaint seeking review
19
of the Commissioner of Social Security’s denial of plaintiff’s application for
20
benefits. The parties have consented to proceed before the undersigned United
21
States Magistrate Judge.
22
This matter is before the Court on the parties’ cross motions for summary
23
judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”)
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(collectively “Motions”). The Court has taken the Motions under submission
25
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27 1Plaintiff’s name is partially redacted to protect her privacy in compliance with Federal
28 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
1 || without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; Order Lifting Stay; Case
2 || Management Order filed on December 9, 2020, at 4] 3.
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. In this case, the
6 || Administrative Law Judge (“ALJ”) materially erred by rejecting plaintiffs
7 || subjective symptom testimony without providing adequate reasons.
8] BACKGROUND AND SUMMARY OF ADMINISTRATIVE
9 DECISION
10 On October 5, 2017, plaintiff filed an application for Disability Insurance
11 || Benefits, alleging disability beginning on October 22, 2016, due to osteoporosis
12 || and herniated discs. (Administrative Record (“AR”) 148-49, 161). The ALJ
13 || subsequently examined the medical record and heard testimony from plaintiff (who
14 || was represented by counsel) and a vocational expert. (AR 28-52).
15 On August 29, 2019, the ALJ determined that plaintiff was not disabled
16 || through the date of the decision. (AR 15-23). Specifically, the ALJ found:
17 | (1) plaintiff suffered from the following severe impairments: osteoarthritis,
18 || osteoporosis, degenerative disc disease of the lumbar spine, and lateral tibial
19 || fracture (AR 17); (2) plaintiff's impairments, considered individually or in
20 || combination, did not meet or medically equal a listed impairment (AR 18);
21 | (3) plaintiff retained the residual functional capacity to perform light work (20
22 || C.F.R. §§ 404.1567(b)), with additional limitations’ (AR 18-22 (adopting capacity
23 || consistent with orthopedic consultative examiner’s opinion at AR 408-14));
24 | (4) plaintiff could perform her past relevant work as a director of ministries and
25 || therefore was not disabled (AR 22-23 (adopting vocational expert testimony at AR
26 ——
27 *The ALJ determined that plaintiff would be limited to frequent bending, crouching,
kneeling, crawling, stooping, climbing, balancing, walking on uneven terrain, and working at
28 || heights. (AR 18).
1 47-48)); and (5) plaintiff’s statements regarding the intensity, persistence, and
2 limiting effects of subjective symptoms were not entirely consistent with the
3 medical evidence and other evidence in the record (AR 19-21).
4 On May 14, 2020, the Appeals Council denied plaintiff’s application for
5 review. (AR 1-3).
6 III. APPLICABLE LEGAL STANDARDS
7 A. Administrative Evaluation of Disability Claims
8 To qualify for disability benefits, a claimant must show that she is unable “to
9 engage in any substantial gainful activity by reason of any medically determinable
10 physical or mental impairment which can be expected to result in death or which
11 has lasted or can be expected to last for a continuous period of not less than 12
12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42
13 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded by
14 regulation on other grounds; 20 C.F.R. §§ 404.1505(a), 416.905. To be considered
15 disabled, a claimant must have an impairment of such severity that she is incapable
16 of performing work the claimant previously performed (“past relevant work”) as
17 well as any other “work which exists in the national economy.” Tackett v. Apfel,
18 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).
19 To assess whether a claimant is disabled, an ALJ is required to use the five-
20 step sequential evaluation process set forth in Social Security regulations. See
21 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)
22 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520,
23 416.920). The claimant has the burden of proof at steps one through four – i.e.,
24 determination of whether the claimant was engaging in substantial gainful activity
25 (step 1), has a sufficiently severe impairment (step 2), has an impairment or
26 combination of impairments that meets or medically equals one of the conditions
27 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and
28 retains the residual functional capacity to perform past relevant work (step 4).
3
1 || Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The
2 || Commissioner has the burden of proof at step five — i.e., establishing that the
3 || clarmant could perform other work in the national economy. Id. “If the ALJ
4 || determines that a claimant is either disabled or not disabled at any step in the
5 || process, the ALJ does not continue on to the next step.” Bray v. Commissioner of
6 || Social Security Administration, 554 F.3d 1219, 1226 (9th Cir. 2009) (citing 20
7 || C.F.R. § 416.920(a)(4)).
8 B. Federal Court Review of Social Security Disability Decisions
9 A federal court may set aside a denial of benefits only when the
10 || Commissioner’s “final decision” was “based on legal error or not supported by
11 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
12 | F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard
13 || of review in disability cases is “highly deferential.” Rounds v. Comm’r of Soc.
14 || Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation marks
15 || omitted). Thus, an ALJ’s decision must be upheld if the evidence could reasonably
16 || support either affirming or reversing the decision. Trevizo, 871 F.3d at 674-75
17 || (citations omitted). Even when an ALJ’s decision contains error, it must be
18 || affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec. Admin.,
19 | 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to
20 || the ultimate nondisability determination; or (2) ALJ’s path may reasonably be
21 || discerned despite the error) (citation and quotation marks omitted).
22 Substantial evidence is “such relevant evidence as a reasonable mind might
23 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining
24 || “substantial evidence” as “more than a mere scintilla, but less than a
25 || preponderance’) (citation and quotation marks omitted). When determining
26 || whether substantial evidence supports an ALJ’s finding, a court “must consider the
27 || entire record as a whole, weighing both the evidence that supports and the evidence
28 ///
1 that detracts from the Commissioner’s conclusion[.]” Garrison v. Colvin, 759 F.3d
2 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).
3 Federal courts review only the reasoning the ALJ provided, and may not
4 affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”
5 Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need
6 not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s
7 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,
8 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).
9 A reviewing court may not conclude that an error was harmless based on
10 independent findings gleaned from the administrative record. Brown-Hunter, 806
11 F.3d at 492 (citations omitted). When a reviewing court cannot confidently
12 conclude that an error was harmless, a remand for additional investigation or
13 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173
14 (9th Cir. 2015) (citations omitted).
15 IV. DISCUSSION
16 Plaintiff claims that the ALJ erred by improperly rejecting her subjective
17 symptom testimony. (Plaintiff’s Motion at 3-8). For the reasons stated below, the
18 Court agrees. Since the Court cannot find that the error was harmless, a remand is
19 warranted.
20 A. Pertinent Law
21 When determining disability, an ALJ is required to consider a claimant’s
22 impairment-related pain and other subjective symptoms at each step of the
23 sequential evaluation process. 20 C.F.R. §§ 404.1529(a), 404.1529(d), 416.929(a),
24 416.929(d). Accordingly, when a claimant presents “objective medical evidence of
25 an underlying impairment which might reasonably produce the pain or other
26 symptoms [the claimant] alleged,” the ALJ is required to determine the extent to
27 which the claimant’s statements regarding the intensity, persistence, and limiting
28 effects of her subjective symptoms (“subjective statements” or “subjective
5
1 || complaints”) are consistent with the record evidence as a whole and, consequently,
2 || whether any of the individual’s symptom-related functional limitations and
3 || restrictions are likely to reduce the claimant’s capacity to perform work-related
4 || activities. 20 C.F.R. §§ 404.1529(a), 404.1529(c)(4), 416.929(a), 416.929(c)(4);
5 || SSR 16-3p, 2017 WL 5180304, at *4-*10.> When an individual’s subjective
6 || statements are inconsistent with other evidence in the record, an ALJ may give less
7 || weight to such statements and, in turn, find that the individual’s symptoms are less
8 || likely to reduce the claimant’s capacity to perform work-related activities. See
9 || SSR 16-3p, 2017 WL 5180304, at *8. In such cases, when there is no affirmative
10 || finding of malingering, an ALJ may “reject” or give less weight to the individual’s
11 || subjective statements “only by providing specific, clear, and convincing reasons
12 || for doing so.” Brown-Hunter, 806 F.3d at 488-89. This requirement is very
13 || difficult to satisfy. See Trevizo, 871 F.3d at 678 (“The clear and convincing
14 || standard is the most demanding required in Social Security cases.) (citation and
15 || quotation marks omitted).
16 An ALJ’s decision “must contain specific reasons” supported by substantial
17 || evidence in the record for giving less weight to a claimant’s statements. SSR 16-
18 || 3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each subjective
19 || statement being rejected and the particular evidence in the record which
20 || purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation
21 || omitted). Unless there is affirmative evidence of malingering, the Commissioner’s
22 | reasons for rejecting a claimant’s testimony must be “clear and convincing.”
23 || Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (internal quotation marks
24
200
Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the
26 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 omitted), as amended (Apr. 9, 1996). “General findings are insufficient[.]”
2 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted).
3 If an ALJ’s evaluation of a claimant’s statements is reasonable and is
4 supported by substantial evidence, it is not the court’s role to second-guess it. See
5 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). When
6 an ALJ fails properly to discuss a claimant’s subjective complaints, however, the
7 error may not be considered harmless “unless [the Court] can confidently conclude
8 that no reasonable ALJ, when fully crediting the testimony, could have reached a
9 different disability determination.” Stout, 454 F.3d at 1056; see also Brown-
10 Hunter, 806 F.3d at 492 (ALJ’s erroneous failure to specify reasons for rejecting
11 claimant testimony “will usually not be harmless”).
12 B. Summary of the Relevant Medical Record
13 Plaintiff presented to Dignity Health Urgent Care in August of 2016,
14 complaining of sharp, right-sided low back pain radiating to the buttock for two
15 weeks with no reported trauma. (AR 433). She was diagnosed with acute back
16 pain with sciatica and sent home with a prescription for Naproxen. (AR 434-35).
17 She returned later in August, reporting worsening back pain radiating down the left
18 leg with numbness, for which she was diagnosed with acute lumbar back pain and
19 lumbar spine strain and prescribed Baclofen and Voltaren topical gel. (AR 436-
20 38).
21 Plaintiff attended physical therapy at Marketplace Physical Therapy from
22 September through November of 2016. (AR 259-300). She reported sciatic nerve
23 pain and spinal arthritis, rating her pain ranging from 3/10 to 10/10 with her pain at
24 9/10 initially. (AR 263, 265). Plaintiff also initially reported that she got little
25 relief from her pain medication, could not lift heavy weights, could not walk more
26 than 1/4 of a mile, could not sit more than one hour, could stand as long as she
27 wanted but with pain, and that pain prohibits her from doing anything more than
28 ///
7
1 light duties. (AR 267). Her therapist reported “steady progress with each passing
2 day” with acute pain reducing to sub-acute pain in October of 2016. (AR 285).
3 Plaintiff presented to the McKee Family Health Center in October of 2016,
4 for test results and a medication refill for Hydrocodone, Naproxen, and
5 Gabapentin, reporting tinnitis and back pain radiating to her legs rated at 5/10.
6 (AR 236-38). She reported that her sciatica was getting better and that she did not
7 take her pain medication during the day because she then was caring for three to
8 five children and could not be drowsy. (AR 237). She also reported taking less
9 Gabapentin because it was making her tired. (AR 237). Plaintiff stopped working
10 at the end of October. (AR 38).
11 Plaintiff treated with Dr. Richard M. Kangah from February of 2017 through
12 at least April of 2018. (AR 305-47, 385-99, 416-31). At her initial visit, plaintiff
13 reported having low back pain for six months and complained of muscle cramps
14 and, despite reportedly no abnormal findings on examination (with no detail), was
15 assessed with “active diagnoses” for low back pain and intervertebral disc
16 degeneration in her lumbar spine and prescribed Norco. (AR 312-14). When she
17 returned in March of 2017, plaintiff reportedly denied any musculoskeletal issues.
18 (AR 306). She was still taking only extra strength Tylenol. (AR 306). Although
19 again there were no abnormal findings reported on examination, Dr. Kangah noted
20 plaintiff had a history of low back pain and prescribed Norco. (AR 307-11).
21 Plaintiff filled her Norco prescription in April of 2017. (AR 326).
22 At her April, 2017 visit, it is noted that plaintiff reported she exercised on a
23 regular basis and had a recent increase in her physical activity with her reportedly
24 in good physical condition. (AR 327). The record does not contain any detail
25 about what exercise plaintiff may have been doing. Plaintiff complained of muscle
26 aches, back pain, cramps, sciatica, and tenderness of the lower back with straight
27 leg raising, but no weakness or difficulty walking. (AR 327). She had no reported
28 ///
8
1 abnormalities on examination. (AR 328). She reportedly was tolerating her
2 medication well without adverse effects. (AR 328).
3 A MRI of plaintiff’s lumbar spine dated May 5, 2017, notedly was a limited
4 evaluation secondary to motion artifact with recommended repeat MRI. (AR 302-
5 03). The MRI did show subacute injury at the superior endplate of the L2 vertebral
6 body with a Schmorl’s node, and a 3-mm disc bulge at L4-L5 with mild neural
7 foraminal narrowing, bilateral facet joint arthritis, and encroachment on the
8 bilateral transiting nerve roots. (AR 303).
9 At her May and June, 2017 visits with Dr. Kangah, it is noted that plaintiff
10 reported no back pain or difficulty walking, and her examination results reportedly
11 were normal. (AR 331-32, 334-35). Her Norco was refilled. (AR 332, 335, 337).
12 Dr. Kangah reviewed plaintiff’s lumbar spine MRI and referred plaintiff to an
13 orthopedic surgeon. (AR 337).
14 Plaintiff presented to Dr. Scott R. Strum of Arrowhead Orthopedics in July
15 and August of 2017 for an evaluation of her constant, worsening low back pain
16 radiating to her legs with numbness and tingling. (AR 361-72). Plaintiff
17 reportedly believed her condition was not severe enough to consider surgery and
18 was relieved 50 percent by pain medication. (AR 361-62). She reportedly had
19 gotten no relief from physical therapy and a steroid injection. (AR 361-62). On
20 examination, she notedly had somewhat exaggerated lumbar lordosis, limited range
21 of motion in all planes, tenderness to palpation at L2 and L3, some difficulty
22 transferring from chair to standing and from standing to the examination table, but
23 no atrophy and a normal gait. (AR 363, 368-69). Her May, 2017 MRI reportedly
24 demonstrated possible L2 chronic compression fracture and demonstrated mild
25 multilevel disc bulging without significant neural compression. (AR 364). Dr.
26 Strum assessed with a L2 compression fracture, back pain, and likely osteoporosis,
27 and referred plaintiff to an osteoporosis specialist. (AR 364). Based on her MRI
28 study, Dr. Strum opined there was no surgery that could be performed to improve
9
1 her symptoms, so she was referred for pain management for possible injections.
2 (AR 369).
3 When plaintiff returned to Dr. Kangah in July of 2017, she reported that Dr.
4 Strum had discovered a back “fx” (fracture), but Dr. Kangah’s office had not
5 received any documentation which Dr. Kangah subsequently requested. (AR 340-
6 41). In August of 2017, plaintiff returned to renew her medications and was noted
7 to also have osteoporosis for which she was prescribed Fosamax. (AR 342-44; see
8 also AR 351-54 (July, 2017 bone density study reporting low densities)).
9 Plaintiff returned to Dr. Kangah in September of 2017, for a medication
10 refill. (AR 393-95). Plaintiff was noted to have a fracture due to osteoporosis at
11 L4-L5, with current complaints of myelopathy with numbness and tingling in her
12 legs. (AR 395). Plaintiff reportedly wanted disability and was told to fill out
13 forms for Dr. Kangah to sign. (AR 395). There are no such forms in the record.
14 The next available treatment note is from April of 2018, when plaintiff
15 returned to Dr. Kangah for her hearing (tinnitus) and reportedly refused to have a
16 physical done. (AR 425). She notedly had limited range of motion in her low back
17 and degeneration of her intervertebral disc(s). (AR 426). Her Norco was
18 continued. (AR 427).
19 Plaintiff returned to Dignity Health Urgent Care in May of 2018, reporting
20 rib-trunk pain and rib-trunk swelling for four days, which occurred when plaintiff
21 “leaned over” and hurt her rib. (AR 439). She was given a shot of Toradol and
22 prescribed Tramadol. (AR 440-42). She returned in August of 2018, for a left
23 knee injury causing pain and swelling, for which she was prescribed Naproxen.
24 (AR 443-46).
25 Plaintiff presented to Beaver Medical Group in November of 2018 to
26 establish care for her chronic back, knee, and arm pain which she medicated with
27 Norco. (AR 447). She had fallen three months earlier and injured her knees. (AR
28 447). She reported increasing back pain since August of 2016. (AR 447). On
10
1 examination, she had lumbar tenderness, degenerative changes in both knees with
2 some swelling and crepitus, and tenderness in the right lateral humeral epicondyle
3 (AR 448). She was diagnosed with bilateral knee pain, osteoporosis, back pain,
4 and tendinitis, knee x-rays were ordered (see AR 455-57 (x-rays showing no acute
5 findings, degenerative changes, and mild irregularity in the left knee which could
6 be related to previous minimally depressed tibial plateau fracture)), and her
7 Naprosyn was refilled to go with her other medications (Norco and Tizanidine).
8 (AR 448-49). When she returned in January of 2019, some of her medical records
9 were reviewed and her medications were continued. (AR 459-63).
10 Meanwhile, consultative examiner Dr. Jeff Altman prepared an Orthopedic
11 Consultation dated February 12, 2018. (AR 408-14). Plaintiff complained of
12 osteoporosis with a spine fracture for which she had felt symptoms since August of
13 2016. (AR 408). She complained of sharp, aching back pain radiating into her
14 lower extremities, which worsened with sitting for 30 minutes. (AR 408).
15 Plaintiff had undergone physical therapy which she reported made her symptoms
16 worse, and was using a TENS unit, doing yoga and stretching. (AR 409). Dr.
17 Altman reviewed the medical record which included lumbar spine x-rays from
18 August of 2016, showing degenerative changes (see AR 429), the May, 2017
19 lumbar spine MRI (see AR 430-31), the bone scan report (see AR 351-54), and a
20 note from Arrowhead Orthopedics concerning a possible L2 compression fracture.
21 (AR 409). Plaintiff’s examination findings reportedly were within normal limits.
22 (AR 410-13). Dr. Altman did not order any new imaging studies, and diagnosed
23 lumbar disc disease at L4-L5 with a 3-mm disc bulge as shown in the MRI,
24 questionable compression fracture per the medical record, and osteoporosis. (AR
25 413). Dr. Altman opined that Plaintiff was capable of light work with frequent
26 postural activities consistent with the ALJ’s residual functional capacity
27 determination. (AR 413-14).
28 ///
11
1 A state agency physician had reviewed the record in December of 2017 and
2 opined that an orthopedic consultative examination was needed. (AR 53-58). In
3 March of 2018, after Dr. Altman’s evaluation, the state agency physician reviewed
4 the record and opined that plaintiff was capable of medium work, finding that the
5 Dr. Altman’s opinion appeared to be “overly restrictive” based on the physical
6 findings. (AR 60-63). On reconsideration in April of 2018, another state agency
7 physician found plaintiff capable of medium work. (AR 66-77).
8 C. Plaintiff’s Subjective Statements
9 Plaintiff’s past relevant work was as a director of ministries (Dictionary of
10 Occupational Titles 169.167-034), light work, which reportedly is like an office
11 manager. (AR 33). Plaintiff testified that she last worked in October of 2016 at a
12 preschool and stopped working due to pain and stress. (AR 38). Plaintiff said
13 when she was working for the ministry, she had an injury that “greatly
14 handicapped” her – i.e., she was on a lot of pain medication and could not
15 concentrate to deal with people or go to the office every day to work. (AR 39).
16 Plaintiff was still taking those pain medications at the time of the hearing. (AR
17 39).4
18 Plaintiff testified that her medications “mitigate” her pain but she has good
19 and bad days when her spine feels like a wood beam. (AR 42). Plaintiff also said
20 that she never sleeps more than four hours a night due to pain and she has tinnitus
21 24/7, which affects everything else and makes her a “ball of anxiety.” (AR 42).
22 When asked if anyone had told her why she was having so much pain,
23 plaintiff said that she had lost three inches in height in less than three years, could
24 not bend over to clip her toenails or put on pants, had fallen off her stairs so she
25 lives downstairs in her house where, on a good day, she could take one trip
26
27
4As detailed above, plaintiff was taking, inter alia, Gabapentin, Hydrocodone,
28
Methylprednisolone, Naproxen and Tizanidine for her pain and numbness. (AR 164, 188).
12
1 upstairs, and on a bad day when her back “feels like a wood beam,” she does not
2 go anywhere in her house. (AR 40).
3 The ALJ countered that the diagnostic studies “don’t show much,” and again
4 asked if plaintiff was told what is causing her pain and plaintiff replied, “I’ve been
5 told well, your spine collapsed. . . it didn’t heal right.” (AR 40). Plaintiff had
6 asked her doctor why she was continuing to lose height and have limitations and
7 said she was told it was because she has a disease and is losing bone density at an
8 accelerated rate. (AR 41; see also AR 188 (plaintiff discussing same and
9 describing a “fractured spine” which caused her spine to collapse and
10 osteoporosis)).
11 Consistent with the medical record, plaintiff said she was referred by her
12 orthopedic surgeon to the pain clinic where she was told that she has osteoporosis
13 and nothing could be done for her by surgery. (AR 44). She explained that her
14 issues started when she got sick and was in bed with strep throat and developed
15 pain in her back and numbness in her legs that made her barely able to walk. (AR
16 46). Plaintiff had been given pain injections and medications and physical therapy
17 which made her pain worse. (AR 46). Plaintiff had only had one MRI study and
18 no nerve conduction testing. (AR 47).
19 Plaintiff lived with her husband and three teenage grandchildren who she
20 described as her “workers in the home.” (AR 42). Plaintiff said she spent her days
21 listening to news, reading, sitting, lying down and napping, taking her youngest
22 grandson to school which was seven minutes away. (AR 43). She said sometimes
23 she will put food in the oven but her grandchildren take care of everything. (AR
24 43). She said she could not go to her grandson’s athletic events because sitting for
25 three hours is extremely uncomfortable and painful. (AR 44).5
26
27 5In an Exertion Questionnaire dated October 17, 2017, plaintiff reported: (1) she did not
walk more than 50 feet (or for 15-20 minutes) and did so slowly with a limp due to pain; (2) she
28
(continued...)
13
1 Plaintiff’s counsel argued at the hearing that if plaintiff’s pain were
2 accounted for it would preclude her past relevant work which would render her
3 presumptively disabled under “the Grids,” 20 C.F.R. Part 404, Subpart P,
4 Appendix 2 (AR 50). Plaintiff had reported that she became unable to do her
5 director of ministries job because it required at least five or six hours of sitting per
6 day, when she could barely sit for 30 minutes before needing to lie down, and due
7 to anxiety and stress. (AR 195).6
8 D. Analysis
9 The ALJ determined that plaintiff’s “medically determinable impairments
10 could reasonably be expected to cause the alleged symptoms,” but plaintiff’s
11 “statements concerning the intensity, persistence and limiting effects of these
12 symptoms are not entirely consistent with the medical evidence and other evidence
13 in the record for the reasons explained in th[e] decision.” (AR 19). However, the
14 ALJ failed to provide specific, clear, and convincing reasons to support this
15 determination.
16
17 5(...continued)
18 stopped climbing stairs because it was painful and she had fallen; (3) she shopped for and lifted
groceries and laundry (less than five pounds) two to three times per week; (4) she did not clean
19 her home or do yard work but could drive a car and had considerable pain if she drove for more
than 20 minutes (but see AR 188 (plaintiff explaining that she could do very light cleaning like
20
washing dishes and cooking for her grandchildren)); (5) she napped one or two hours a day;
21 (6) she could sit for no more than 30 minutes at a time; (7) she could not bend over and cut her
toenails or put on socks, shoes or pants; and (8) her daily medications left her feeling
22 unbalanced, weak, and fatigued, which affected her concentration. (AR 185-89). Plaintiff
explained that her limited ability to bend over or and to sit/stand for only a short amount of time
23
greatly limited her normal activities. (AR 187). She assertedly was unable to finish tasks after
24 15 minutes of exertion due to pain, fatigue and limb numbness. (AR 187).
25 6The vocational expert testified that a person with the residual functional capacity the
ALJ found to exist could perform plaintiff’s past relevant work. (AR 47-48; compare AR 194-
26
95 (plaintiff’s description of her past relevant work)). However, the vocational expert further
27 opined that if the person was further limited to performing simple, repetitive, routine tasks, or to
non-complex tasks and only superficial interpersonal interactions, that person could not perform
28
plaintiff’s past relevant work. (AR 48-49).
14
1 The ALJ explained that despite plaintiff’s allegations of pain and limited
2 functioning, “the medical findings in the record revealed largely unremarkable
3 findings and symptoms that improved or were otherwise reasonably controlled
4 with conservative treatment modalities.” (AR 19 (erroneously referring to
5 plaintiff’s allegations as “his allegations”)). The ALJ went on to discuss the
6 medical evidence, noting, inter alia, that plaintiff’s physical examinations
7 “revealed negative or at most, unremarkable findings as to her gait,
8 musculoskeletal functioning, or any bony abnormalities.” (AR 19-21).7
9 A purported lack of objective medical evidence is not – in and of itself – a
10 sufficient basis to discount a claimant’s testimony, but may be a relevant factor.
11 See, e.g., Burch, 400 F.3d at 681 (“Although lack of medical evidence cannot form
12 the sole basis for discounting pain testimony, it is a factor that the ALJ can
13 consider in his credibility analysis.”). Even so, the ALJ did not specify or explain
14 how any of plaintiff’s medical evidence undermined or contradicted her
15 statements. The ALJ instead simply referenced plaintiff’s examination findings
16 and found that the residual functional capacity assessment reasonably accounted
17 for plaintiff’s impairments. (AR 20-21). The ALJ failed to demonstrate how these
18 findings support the rejection of plaintiff’s statements – including, among other
19 things, her statements that her pain interfered with her ability to concentrate and
20 interact with others, and that she was unable to sit for more than 30 minutes at a
21 time before needing to lie down due to pain. See Lambert v. Saul, 980 F.3d 1266,
22
23
7Plaintiff’s counsel had questioned how well Dr. Kangah had documented plaintiff’s
24 complaints – arguing that Dr. Kangah’s treatment notes had reported completely normal results
until plaintiff went to the orthopedist Dr. Strum. (AR 45). As summarized above, Dr. Kangah’s
25 notes do report few complaints and normal findings on examination despite prescribing strong
narcotic medication. Whereas, Dr. Strum detailed plaintiff’s subjective complaints of constant
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worsening low back pain radiating to her legs with numbness and tingling, and her abnormal
27 findings on examination (i.e., tenderness to palpation at L2 and L3, some difficulty transferring
from chair to standing and from standing to the examination table). See AR 363, 368-69 (Dr.
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Strum’s notes).
15
1 || 1278 (9th Cir. 2020) (“Although the ALJ did provide a relatively detailed overview
2 || of [plaintiff's] medical history, ‘providing a summary of medical evidence . . . is
3 || not the same as providing clear and convincing reasons for finding the claimant’s
4 || symptom testimony not credible.) (quoting Brown-Hunter, 806 F.3d at 494); see
5 || also id. at 1268 (“[T]he ALJ must identify the specific testimony that he
6 || discredited and explain the evidence undermining it.”).
7 Defendant points out that the ALJ also referenced plaintiff's asserted
8 || “conservative treatment modalities” as reasonably controlling plaintiff's pain, and
9 || also relied on the findings of the consultative examiner to negate plaintiff's pain
10 || testimony. See Defendant’s Motion at 6-7 (referencing AR 19-21). To the extent
11 || the ALJ relied on the consultative examiner’s opinion to discount plaintiff's
12 || subjective statements, said opinion is just a part of the medical record which cannot
13 || form the sole basis for discounting subjective complaints, and it does not explain a
14 || basis to discount plaintiff's pain complaints.
15 To the extent the ALJ relied on plaintiff's assertedly conservative treatment
16 || modalities in discounting her statements, an ALJ may give less weight to a
17 || claimant’s subjective complaints to the extent the claimant was adequately treated
18 || with conservative measures. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th
19 || Cir. 2008) (evidence that claimant “responded favorably to conservative treatment”
20 || inconsistent with plaintiff's reports of disabling pain); Parra v. Astrue, 481 F.3d
21 |) 742, 751 (9th Cir. 2007) (“[E]vidence of ‘conservative treatment’ is sufficient to
22 || discount a claimant’s testimony regarding severity of an impairment.”) (citation
23 || omitted), cert. denied, 552 U.S. 1141 (2008); SSR 16-3p, 2016 WL 1119029, at
24 || *7-*8 (ALJ may give less weight to subjective statements where “the frequency or
25 || extent of the treatment sought by an individual is not comparable with the degree
26 || of the individual’s subjective complaints. .. .”); SSR 96-7p, 1996 WL 374186, at
27 || *7 (a “[claimant’s] statements may be less credible if the level or frequency of
28 || treatment is inconsistent with the level of complaints. . .”).
16
1 Here, however, plaintiff treated with narcotic pain medications and
2 || it is doubtful whether ongoing treatment with Tramadol and Hydrocodone (Norco)
3 || may properly be characterized as “conservative” within the meaning of Ninth
4 || Circuit jurisprudence, especially since plaintiff's orthopedic surgeon indicated that
5 || surgery is not an option and her condition must be addressed through pain
6 || management. See AR 369; see also, e.g., Shepard v. Colvin, 2015 WL 9490094, at
7 || *7 (E.D. Cal. Dec. 30, 2015) (“[p]rior cases in the Ninth Circuit have found that
8 || treatment was conservative when the claimant’s pain was adequately treated with
9 || over-the-counter medication and other minimal treatment,” however where record
10 || reflected heavy reliance on Tramadol and Oxycodone and other prescriptions for
11 || pain, record did not support finding that treatment was “conservative’’) (internal
12 || citations omitted; citing for comparison Lapeirre-Gutt v. Astrue, 382 Fed. App’x.
13 | 662, 664 (9th Cir. 2010) (doubting whether “copious amounts of narcotic pain
14 | medication” as well as nerve blocks and trigger point injections was “conservative”
15 || treatment)); Childress v. Colvin, 2014 WL 4629593, at *12 (N.D. Cal. Sept. 16,
16 || 2014) (“[i]t is not obvious whether the consistent use of [Norco] (for several years)
17 || is ‘conservative’ or in conflict with Plaintiff's pain testimony’); Aguilar v. Colvin,
18 | 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) (“It would be difficult to fault
19 || Plaintiff for overly conservative treatment when he has been prescribed strong
20 || narcotic pain medications”); Christie v. Astrue, 2011 WL 4368189, at *4 (C.D.
21 |) Cal. Sept. 16, 2011) (refusing to characterize as “conservative” treatment that
22 || included narcotic pain medication and epidural injections).
23 Because the ALJ failed to provide specific, clear, and convincing reasons to
24 || discount plaintiff's subjective statements, remand is warranted for reconsideration
25 || of these statements. See Treichler, 775 F.3d at 1103 (“Because ‘the agency’s path’
26 || cannot ‘reasonably be discerned,’ we must reverse the district court’s decision to
27 || the extent it affirmed the ALJ’s credibility determination.”’) (quoting Alaska Dep’t
28 || of Env’t Conserv. v. E.P.A., 540 U.S. 461, 497 (2004)).
17
1 V. CONCLUSION
2 For the foregoing reasons, the decision of the Commissioner of Social
3 Security is REVERSED in part, and this matter is REMANDED for further
4 administrative action consistent with this Opinion.
5 LET JUDGMENT BE ENTERED ACCORDINGLY.
6 DATED: April 28, 2021
7 ______________/s/___________________
Honorable Jacqueline Chooljian
8
UNITED STATES MAGISTRATE JUDGE
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