(SS) Hector Narvaiz v. Commissioner of Social Security

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7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

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HECTOR NARVAIZ,

10 Case No. 1:20-cv-00848-SKO

Plaintiff,

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v. ORDER ON PLAINTIFF’S SOCIAL

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SECURITY COMPLAINT

KILOLO KIJAKAZI,

13 Acting Commissioner of Social Security,1

14 Defendant. (Doc. 1)

15 _____________________________________/

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I. INTRODUCTION

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18 On June 17, 2020, Plaintiff Hector Narvaiz (“Plaintiff”) filed a complaint under 42 U.S.C.

19 §§ 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of Social

20 Security (the “Commissioner” or “Defendant”) denying his applications for disability insurance

21 benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the

22 “Act”). (Doc. 1.) The matter is currently before the Court on the parties’ briefs, which were

23 submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate

24 Judge.2

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26 1 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See

https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42

27 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office

of the Commissioner shall, in [their] official capacity, be the proper defendant”).

28 2 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (See Doc. 12.)

1 II. BACKGROUND

2 On February 1, 2016, Plaintiff protectively filed applications for DIB and SSI payments,

3 alleging he became disabled on January 28, 2012, due to hypokalemia, headaches, depression,

4 hypertension, chronic leg pain, and difficulty hearing. (Administrative Record (“AR”) 81–82, 90–

5 91, 250.) Plaintiff was born on March 5, 1961, and was fifty years old as of the alleged onset date.

6 (AR 81, 90, 101, 109.) Plaintiff completed some school, approximately through the tenth grade, has

7 past work experience as a forklift driver, and can communicate in English. (AR 249, 251.)

8 A. Relevant Medical Evidence3

9 In June 2018, consultative examiner Vinay K. Buttan, M.D. conducted an internal medicine

10 evaluation of Plaintiff. (AR 434–42.) Plaintiff’s chief complaint was worsening pain in his legs,

11 described as located “mostly in the lower legs and feet,” with numbness and tingling. (AR 434.)

12 Plaintiff reported that his leg pain was “especially severe” when climbing steps. (AR 434.) He also

13 reported a history of diabetes, hypertension, depression, back pain, knee pain, shoulder pain, and

14 hand pain. (AR 434–35.)

15 Upon physical examination, Plaintiff presented with a normal gait without the use of an

16 assistive device. Dr. Buttan observed tenderness in Plaintiff’s entire back, and he was able to bend

17 over and touch his toes. (AR 435.) Plaintiff’s straight leg raise test result was “about 80 degrees”

18 in his right leg and 90 degrees in his left leg. (AR 435.) “Slight tenderness” was present in Plaintiff’s

19 knees, hands, and wrists. (AR 435.) Dr. Buttan noted Plaintiff’s range of motion in all joints was

20 normal. (AR 435.) Plaintiff reported his diabetes and hypertension were both “well controlled.”

21 (AR 435.) Dr. Buttan diagnosed Plaintiff with diabetes mellitus with diabetic peripheral neuropathy

22 causing pain in his legs and feet; generalized osteoarthritis involving shoulders, hands, wrists, and

23 knees; back pain possible due to degenerative changes; hypertension; and depression. (AR 435.)

24 Dr. Buttan opined Plaintiff could: lift and carry 11 to 20 pounds occasionally; stand for four

25 to five hours in an eight-hour workday; walk for about three to four hours in an 8-hour workday; sit

26 without restriction; occasionally climb, balance, stoop, kneel, crouch, and crawl; and tolerate

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28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the

1 occasional exposure to environmental conditions. (AR 435–40.) According to Dr. Buttan, Plaintiff

2 “should be able to work with his hand,” including the ability to “manipulate small tools, instruments,

3 or work on the keyboard” for about three to four hours a day and “should be able to use his feet for

4 control” for approximately three to four hours a day. (AR 435.)

5 Plaintiff underwent a comprehensive psychological evaluation in June 2018. (AR 443–46.)

6 He reported spending his time “going to the library, riding a bike, or cutting the yard.” (AR 444.)

7 B. Administrative Proceedings

8 The Commissioner initially denied Plaintiff’s applications for SSI and DIB benefits on

9 September 14, 2016. (AR 119–28.) Plaintiff’s applications were denied again on reconsideration

10 on December 8, 2016. (AR 135–45.) Plaintiff then requested a hearing before an Administrative

11 Law Judge (“ALJ”). (AR 146–51.) At the hearing on February 9, 2019, Plaintiff appeared with

12 counsel and testified before an ALJ as to his alleged disabling conditions. (AR 51–80.)

13 1. Plaintiff’s Testimony

14 Plaintiff complains of pain in both legs and swollen feet. (AR 70.) To alleviate the

15 swelling, he puts his feet up twice a day for “about half an hour to an hour.” (AR 71.) He also

16 complains of cramping in his legs at nighttime that has been “happening for a long time” and

17 getting worse. (AR 72.) He testified that if he uses his legs more often during the day, they get

18 “more cramped during the night.” (AR 72.)

19 Plaintiff testified he is able to do chores and activities around his home, such as washing

20 dishes. (AR 65.) He can wash dishes for 15 minutes before needing to sit down for “at least 45

21 minutes.” (AR 65.) Plaintiff testified he can stand or walk for “an hour, or a half hour” before

22 needing to take a break. (AR 66.) Walking helps relieve his pain, and he takes his puppy with

23 him during his walks. (AR 68.) According to Plaintiff, he walks less following an accident in

24 December when, while out shopping, his knee “popped out of place.” (AR 73.)

25 2. Vocational Expert’s Testimony

26 A Vocational Expert (“VE”) testified at the hearing that Plaintiff had past work as an

27 industrial truck operator, Dictionary of Operational Titles (“DOT”) code 921.683-050, which is

28 medium (heavy as performed) and semi-skilled work, with a specific vocational preparation

1 (“SVP”)4 of 3. (AR 74–75.) Plaintiff also had past work as a truss assembler, DOT code 762.684-

2 062, which is medium (heavy as performed) and semi-skilled work, with an SVP of 3; and as a farm

3 worker (vegetable), DOT code 402.687-010, which is medium and unskilled work, with an SVP of

4 2. (AR 74–75.) The ALJ asked the VE to consider a person of Plaintiff’s age, education, and work

5 experience. (AR 76.) The VE was also to assume this person would be at the medium exertional

6 level, could tolerate occasional ramps and stairs, could not use ladders, ropes, or scaffolding, could

7 frequently perform balancing, stooping, and crouching, could occasionally crawl or kneel, and

8 would not be able to work in unprotected heights or with heavy machinery with fast-moving parts.

9 (AR 76.) The VE testified that person would not be able to perform Plaintiff’s past work. (AR 76)

10 In response to whether such a person could perform any work in the national economy, the VE

11 testified that such a person could perform unskilled medium jobs with an SVP of 2, such as cook’s

12 helper, DOT code 317.687-010; food service hospital worker, DOT code 319.677-014; and dining

13 room attendant, DOT code 311.677-018. (AR 77.)

14 The ALJ asked the VE, in a second hypothetical, to consider a person of Plaintiff’s age,

15 education, and work experience who would be at the light exertional level; could tolerate occasional

16 ramps and stairs, but no ladders, ropes, or scaffolding; would be able to perform occasional

17 balancing, stooping, kneeling, crouching, and crawling; and unable to work at unprotected heights

18 or with heavy machinery with fast-moving parts. (AR 77.) The VE testified that such a person

19 could perform light jobs in the national economy, such as counter attendant (DOT code 311.477-

20 014); cafeteria attendant (DOT code 311.677-010); and garment bagger (DOT code 920.687-018).

21 In a third hypothetical, the ALJ asked the VE to consider whether an individual of the

22 claimant’s age, education, and work history, who could perform non-complex routine tasks along

23 with the limitations identified in hypothetical one, could perform the same jobs as the person in

24 hypothetical one, and the VE answered affirmatively. (AR 78.) In a fourth hypothetical, the ALJ

25 asked the VE to consider whether an individual of the claimant’s age, education, and work history,

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4 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker

27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific

job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in the

28 DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level –

1 who could perform non-complex routine tasks along with the limitations identified in hypothetical

2 two, could perform the same jobs as the person at issue in hypothetical two; the VE answered

3 affirmatively. (AR 78.) Finally, the ALJ asked the VE, in a fifth hypothetical, to consider a person

4 of Plaintiff’s age, education, and work experience who require a minimum of two additional, 15-

5 minute unscheduled breaks in the workday to address pain, fatigue, or a medical condition, in

6 addition to the normal breaks in a workday. (AR 78.) The VE testified there is no work such a

7 person could perform. (AR 78–79.)

8 C. The ALJ’s Decision

9 In a decision dated April 3, 2019, the ALJ found that Plaintiff was not disabled, as defined

10 by the Act. (AR 15–25.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R.

11 §§ 404.1520, 416.920. (AR 17–25.) The ALJ decided that Plaintiff met the insured status

12 requirements of the Act through June 30, 2016, and he had not engaged in substantial gainful activity

13 since January 28, 2012, the alleged onset date (step one). (AR 17.) At step two, the ALJ found

14 Plaintiff’s following impairments to be severe: minimal osteoarthritis, diabetes mellitus,

15 hypertension, and history of hypomagnesia and hypokalemia. (AR 17–19.) Plaintiff did not have

16 an impairment or combination of impairments that met or medically equaled one of the listed

17 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 19–

18 20.)

19 The ALJ then assessed Plaintiff’s RFC and applied the assessment at steps four and five.

20 See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (“Before we go from step three to step four, we

21 assess your residual functional capacity . . . . We use this residual functional capacity assessment at

22 both step four and step five when we evaluate your claim at these steps.”). The ALJ determined

23 that Plaintiff had the RFC:

to perform medium work as defined in 20 CFR [§] 404.1567(c) and [§] 416.967(c).

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[Plaintiff] can lift and carry 50 pounds occasionally and 25 pounds frequently, stand

25 and/or walk for 6 hours in an 8-hour workday, and sit for 6 hours in an 8-hour

workday. He can occasionally climb ramps and stairs, but never climb ladders,

26 ropes, or scaffolds. [Plaintiff] can frequently balance, stoop, crouch and

occasionally crawl and kneel. He cannot work around unprotected heights or heavy

27 machinery with fast moving parts.

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1 (AR 20–23.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be

2 expected to cause the alleged symptoms[,]” they rejected Plaintiff’s subjective testimony as “not

3 entirely consistent with the medical evidence and other evidence in the record for the reasons

4 explained in this decision.” (AR 20–21.)

5 The ALJ determined that, given his RFC, Plaintiff could not perform his past relevant work

6 (step four), but he could perform a significant number of other jobs in the local and national

7 economies, specifically cook’s helper, food service hospital worker, and dining room attendant (step

8 five). (AR 23–24.) Ultimately, the ALJ concluded that Plaintiff was not disabled from January 28,

9 2012, through the date of their decision. (AR 25.)

10 Plaintiff sought review of this decision before the Appeals Council, which denied review on

11 April 22, 2020. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the

12 Commissioner. 20 C.F.R. §§ 404.981, 416.1481.

13 III. LEGAL STANDARD

14 A. Applicable Law

15 An individual is considered “disabled” for purposes of disability benefits if he or she is

16 unable “to engage in any substantial gainful activity by reason of any medically determinable

17 physical or mental impairment which can be expected to result in death or which has lasted or can

18 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

19 However, “[a]n individual shall be determined to be under a disability only if his physical or mental

20 impairment or impairments are of such severity that he is not only unable to do his previous work

21 but cannot, considering his age, education, and work experience, engage in any other kind of

22 substantial gainful work which exists in the national economy.” Id. at § 423(d)(2)(A).

23 “The Social Security Regulations set out a five-step sequential process for determining

24 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180

25 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The

26 Ninth Circuit has provided the following description of the sequential evaluation analysis:

27 In step one, the ALJ determines whether a claimant is currently engaged in

substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ

28 proceeds to step two and evaluates whether the claimant has a medically severe

1 so, the ALJ proceeds to step three and considers whether the impairment or

combination of impairments meets or equals a listed impairment under 20 C.F.R. pt.

2 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If

not, the ALJ proceeds to step four and assesses whether the claimant is capable of

3 performing her past relevant work. If so, the claimant is not disabled. If not, the

ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to

4 perform any other substantial gainful activity in the national economy. If so, the

claimant is not disabled. If not, the claimant is disabled.

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6 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also 20 C.F.R. § 416.920(a)(4) (providing

7 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be

8 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent

9 steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920.

10 “The claimant carries the initial burden of proving a disability in steps one through four of

11 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.

12 1989)). “However, if a claimant establishes an inability to continue [his] past work, the burden

13 shifts to the Commissioner in step five to show that the claimant can perform other substantial

14 gainful work.” Id. (citing Swenson, 876 F.2d at 687).

15 B. Scope of Review

16 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when

17 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record

18 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” means “such

19 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

20 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305

21 U.S. 197, 229 (1938)). “Substantial evidence is more than a mere scintilla but less than a

22 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

23 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec.

24 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed

25 only if that decision is not supported by substantial evidence or it is based upon legal error.” Tidwell

26 v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will uphold the ALJ’s

27 conclusion when the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g.,

28 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible to more

1 than one rational interpretation, the court may not substitute its judgment for that of the

2 Commissioner.”) (citations omitted).

3 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for that

4 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must

5 determine whether the Commissioner applied the proper legal standards and whether substantial

6 evidence exists in the record to support the Commissioner’s findings. See Lewis v. Astrue, 498 F.3d

7 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply

8 by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa

9 v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a

10 whole, weighing both evidence that supports and evidence that detracts from the [Commissioner’s]

11 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).

12 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.”

13 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin.,

14 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record

15 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti

16 v. Astrue, 533 F.3d 1035, 1038 (9th Circ. 2008) (quoting Robbins v. Social Sec. Admin., 466 F.3d

17 880, 885 (9th Cir. 2006)). “[T]he burden of showing that an error is harmful normally falls upon

18 the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009)

19 (citations omitted).

20 IV. DISCUSSION

21 Plaintiff contends that the ALJ erred in three ways. First, Plaintiff claims the ALJ harmfully

22 erred in their evaluation of Dr. Buttan’s opinion. (Doc. 21 at 5–10; Doc. 31 at 2–5.) Second,

23 Plaintiff asserts that the ALJ improperly discounted Plaintiff’s testimony regarding his subjective

24 complaints. (Doc. 21 at 10–12; Doc. 31 at 5–6.) Lastly, Plaintiff contends that substantial evidence

25 does not support the ALJ’s RFC determination. (Doc. 21 at 18–21; Doc. 31 at 6–7.) For the reasons

26 stated below, the Court determines that the ALJ properly considered Dr. Buttan’s opinion but agrees

27 with Plaintiff that the ALJ erred in their evaluation of Plaintiff’s testimony and will remand the case

28 on that basis.

1 A. The ALJ Properly Evaluated Dr. Buttan’s Opinion

2 1. Legal Standard

3 The ALJ must consider and evaluate every medical opinion of record. See 20 C.F.R. §

4 404.1527(b) and (c);5 Mora v. Berryhill, No. 1:16–cv–01279–SKO, 2018 WL 636923, at *10 (E.D.

5 Cal. Jan. 31, 2018). In doing so, the ALJ “cannot reject [medical] evidence for no reason or the

6 wrong reason.” Mora, 2018 WL 636923, at *10.

7 Cases in this circuit distinguish between three types of medical opinions: (1) those given by

8 a physician who treated the claimant (treating physician); (2) those given by a physician who

9 examined but did not treat the claimant (examining physician); and (3) those given by a physician

10 who neither examined nor treated the claimant (non-examining physician). Fatheree v. Colvin, No.

11 1:13–cv–01577–SKO, 2015 WL 1201669, at *13 (E.D. Cal. Mar. 16, 2015). “Generally, a treating

12 physician’s opinion carries more weight than an examining physician’s, and an examining

13 physician’s opinion carries more weight than a reviewing physician’s.” Holohan v. Massanari, 246

14 F.3d 1195, 1202 (9th Cir. 2001) (citations omitted); see also Orn v. Astrue, 495 F.3d 625, 631 (9th

15 Cir. 2007) (“By rule, the Social Security Administration favors the opinion of a treating physician

16 over non-treating physicians.” (citing 20 C.F.R. § 404.1527)). The opinions of treating physicians

17 “are given greater weight than the opinions of other physicians” because “treating physicians are

18 employed to cure and thus have a greater opportunity to know and observe the patient as an

19 individual.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) (citations omitted).

20 “To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering

21 its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical

22 findings support the opinions.” Cooper v. Astrue, No. CIV S–08–1859 KJM, 2010 WL 1286729,

23 at *2 (E.D. Cal. Mar. 29, 2010). An ALJ may reject an uncontradicted opinion of a treating or

24 examining medical professional only for “clear and convincing” reasons. Lester v. Chater, 81 F.3d

25 821, 830–31 (9th Cir. 1995). In contrast, a contradicted opinion of a treating or examining

26 professional may be rejected for “specific and legitimate reasons that are supported by substantial

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28 5 Plaintiff filed his claims before March 27, 2017, so Section 404.1527, not Section 404.1520c, governs the ALJ’s

1 evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing Ryan, 528 F.3d at 1198);

2 see also Lester, 81 F.3d at 830–31. “The ALJ can meet this burden by setting out a detailed and

3 thorough summary of the facts and conflicting clinical evidence, stating [their] interpretation

4 thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

5 While a treating professional’s opinion generally is accorded superior weight, if it is

6 contradicted by a supported examining professional’s opinion (supported by different independent

7 clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th

8 Cir. 1995) (citing Magallanes, 881 F.2d at 751). The regulations require the ALJ to weigh the

9 contradicted treating physician opinion, Edlund, 253 F.3d at 1157,6 except that the ALJ in any event

10 need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel

11 v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory, minimally supported

12 opinion rejected); see also Magallanes, 881 F.2d at 751.

13 2. Analysis

14 Consultative examiner Dr. Buttan conducted an internal medicine evaluation of Plaintiff in

15 June 2018. (AR 434–42.) Dr. Buttan opined that Plaintiff could: lift and carry 11 to 20 pounds

16 occasionally; stand for four to five hours in an eight-hour workday; walk for about three to four

17 hours in an 8-hour workday; sit without restriction; occasionally climb, balance, stoop, kneel,

18 crouch, and crawl; and tolerate occasional exposure to environmental conditions. (AR 435–40.)

19 According to Dr. Buttan, Plaintiff “should be able to work with his hands like manipulate small

20 tools, instruments, or work on the keyboard” for about three to four hours a day and “should be able

21 to use his feet for control” for approximately three to four hours a day. (AR 435.)

22 Although not specifically identified by the ALJ as a basis for its rejection, Dr. Buttan’s

23 opinion is contradicted by the opinion of consultative examiner Dr. Rios, who found that Plaintiff

24 had no physical limitations. (AR 378–79.) Thus, the ALJ was required to state a “specific and

25 legitimate reason,” supported by substantial evidence, for rejecting the opinion of Dr. Buttan.

26 Trevizo, 871 F.3d at 675.

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28 6 The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3) nature and extent of the

1 The ALJ gave “little weight” to the opinion

2 because it is overly restrictive. Although record corroborated limitations consistent

with a less than medium residual functional capacity, he remains quite physically

3

capable. For example, he rides a bike, works in the yard, takes his puppy on regular

4

walks, and demonstrated a full range of motion about all of his joints.

5 (AR 23 (internal citations omitted).) The ALJ’s first reason—that the opined limitations were

6 inconsistent with Plaintiff’s activities—is a specific and legitimate reason supported by substantial

7 evidence. “An ALJ may discount a medical opinion that is inconsistent with a claimant’s reported

8 functioning.” Lopez v. Saul, No. 1:19–CV–00971–BAM, 2020 WL 6526197, at *9 (E.D. Cal. Nov.

9 5, 2020) (collecting cases); Magallanes, 881 F.2d at 754 (ALJ can properly consider conflicts

10 between physician’s opinion and the claimant’s own testimony in rejecting the physician’s opinion).

11 As the ALJ observed, Plaintiff reported to the psychiatric consultative examiner that his daily

12 activities include “going to the library, riding a bike, or cutting the yard.” (AR 444.) Plaintiff also

13 testified at the hearing that he walks to relieve pain and that he takes his puppy on his walks. (AR

14 66–68.) Such degree of daily activities belies Dr. Buttan’s opined limitations, particularly those

15 directed to Plaintiff’s walking and postural abilities (see AR 435–40). See Morgan v. Comm’r of

16 Soc. Sec. Admin., 169 F.3d 595, 601-03 (9th Cir. 1999) (upholding ALJ decision discounting

17 doctors’ opinions based in part on claimant’s daily activities).

18 The ALJ properly discounted Dr. Buttan’s opinion for the additional reason that the opined

19 limitations were inconsistent with the medical evidence, specifically Dr. Buttan’s normal

20 examination results. An ALJ may discount an examining physician’s opinion that is not supported

21 by the medical record. See Batson v. Comm’r of Social Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.

22 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The ALJ need not accept the

23 opinion of any physician . . . if that opinion is brief, conclusory, and inadequately supported by

24 clinical findings.”); Khounesavatdy v. Astrue, 549 F. Supp. 2d 1218, 1229 (E.D. Cal. 2008) (“[I]t is

25 established that it is appropriate for an ALJ to consider the absence of supporting findings, and the

26 inconsistency of conclusions with the physician’s own findings, in rejecting a physician’s

27 opinion.”). Here, the ALJ explained that Dr. Buttan’s opinion was inconsistent with his examination

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1 findings that Plaintiff’s range of motion in all joints was normal.7 (AR 435.) Such normal result

2 undermines Dr. Buttan’s opined limitations. See Morgan, 169 F.3d at 600–01 (The ALJ may accord

3 an opinion less weight based upon substantial evidence, including “clinical evidence” that the ALJ

4 finds to be conflicting.).

5 In sum, the ALJ stated legally sufficient reasons supported by substantial evidence to

6 discount the restrictive opinion of Dr. Buttan. As the Court may neither reweigh the evidence nor

7 substitute its judgment for that of the Commissioner, it will not disturb the ALJ’s finding on this

8 basis, even if, as Plaintiff points out (see, e.g., Doc. 21 at 8–9), some of the above-described evidence

9 could be construed more favorably to him.8 See Robbins, 466 F.3d at 882; Thomas, 278 F.3d at 954

10 (Where the evidence is susceptible to more than one rational interpretation, it is the Commissioner’s

11 conclusion that must be upheld.); Batson, 359 F.3d at 1196 (“When evidence reasonably supports

12 either confirming or reversing the ALJ’s decision, we may not substitute our judgment for that of

13 the ALJ.”).

14 B. The ALJ Harmfully Erred in the Evaluation of Plaintiff’s Testimony

15 1. Legal Standard

16 In evaluating the credibility of a claimant’s testimony regarding their impairments, an ALJ

17 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First,

18 the ALJ must determine whether the claimant has presented objective medical evidence of an

19 underlying impairment that could reasonably be expected to produce the symptoms alleged. Id. The

20 claimant is not required to show that the impairment “could reasonably be expected to cause the

21 severity of the symptom [he] has alleged; [he] need only show that it could reasonably have caused

22 some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.

23 2007)). If the claimant meets the first test and there is no evidence of malingering, the ALJ can only

24 reject the claimant’s testimony about the severity of the symptoms if they give “specific, clear and

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7 Dr. Buttan’s examination also showed Plaintiff had a normal gait and the ability to bend over and touch his toes. (AR

26 435.)

8 Plaintiff asserts that the ALJ’s observation that “the record corroborated limitations consistent with a less than medium

27 residual functional capacity” (AR 23) is a concession that Plaintiff’s appropriate RFC is a light work capacity, consistent

with Dr. Buttan’s opinion. (See, e.g., Doc. 21 at 7, 10, 12, 15.) The Court disagrees. A more reasonable interpretation

28 is that the ALJ was merely noting that the record corroborated their own RFC assessment, which was a “less than

1 convincing reasons” for the rejection. Id. As the Ninth Circuit has explained:

2 The ALJ may consider many factors in weighing a claimant’s credibility, including

(1) ordinary techniques of credibility evaluation, such as the claimant’s reputation

3

for lying, prior inconsistent statements concerning the symptoms, and other

4 testimony by the claimant that appears less than candid; (2) unexplained or

inadequately explained failure to seek treatment or to follow a prescribed course of

5 treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported

by substantial evidence, the court may not engage in second-guessing.

6

7 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v.

8 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226–27 (9th Cir. 2009). Other factors the ALJ may

9 consider include a claimant’s work record and testimony from physicians and third parties

10 concerning the nature, severity, and effect of the symptoms of which he complains. Light v. Social

11 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

12 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most

13 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir.

14 2014) (quoting Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). General

15 findings are not sufficient to satisfy this standard; the ALJ “‘must identify what testimony is not

16 credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 F.3d

17 1133, 1138 (9th Cir. 2014) (quoting Lester, 81 F.3d at 834)).

18 2. Analysis

19 The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be

20 expected to cause the alleged symptoms.” (AR 20.) The ALJ also found that “[Plaintiff’s]

21 statements concerning the intensity, persistence and limiting effects of these symptoms are not

22 entirely consistent with the medical evidence and other evidence in the record for the reasons

23 explained in this decision.” (AR 20–21.) Since the ALJ found that Plaintiff’s “medically

24 determinable impairments could reasonably be expected to cause the alleged symptoms,” the only

25 remaining issue is whether the ALJ provided “specific, clear and convincing reasons” for Plaintiff’s

26 adverse credibility finding. See Vasquez, 572 F.3d at 591.

27 The ALJ gave only one specific reason as to why Plaintiff’s symptom statements were less

28 than credible: they were inconsistent with the “medical evidence and other evidence in the record.”

1 (AR 19.) This is neither a clear nor convincing reason to discount Plaintiff’s testimony because the

2 ALJ may not reject a claimant’s subjective statements for the sole reason that the testimony is

3 inconsistent with the objective evidence. See Brown-Hunter v. Colvin, 806 F.3d 487, 493–94 (9th

4 Cir. 2015). Further, although the ALJ indicates in the decision that such inconsistency is “discussed

5 below” (AR 21), the ALJ failed to include such discussion and, more importantly, to specify which

6 statements they found to be less than credible and why. This is required because, without that

7 specification, the Court is left to speculate as to which statements the ALJ intended to discount and

8 how they are undermined by the evidence—which the Court may not do. See id. at 494–95 (“We

9 cannot review whether the ALJ provided specific, clear and convincing reasons for rejecting [the

10 claimant]’s pain testimony where, as here, the ALJ never identified which testimony she found not

11 credible, and never explained which evidence contradicted that testimony . . . . In sum, we cannot

12 substitute our conclusions for the ALJ’s, or speculate as to the grounds for the ALJ’s conclusions.”)

13 (emphasis in original).

14 The Court also notes that the ALJ’s standalone reason for discounting Plaintiff’s

15 testimony—that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of

16 these symptoms are not entirely consistent with the medical evidence and other evidence in the

17 record for the reasons explained in this decision”—has been criticized by courts, including the Ninth

18 Circuit, as “boilerplate language.” See, e.g., Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir.

19 2017) (citing Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012)). The Ninth Circuit found this kind

20 of language to be “problematic,” as it “subverts the way an RFC must be determined relying on

21 credible evidence, including testimony.” Id. “[I]nclusion of [the] flawed boilerplate language”

22 “does not . . . add anything to the ALJ’s determination.” Id. Because the ALJ included only the

23 boilerplate language and did not specifically identify “the reasons explained in the decision,” the

24 ALJ’s analysis of Plaintiff’s subjective complaints was flawed.

25 In an effort to salvage the adverse credibility determination, the Commissioner points to

26 statements made by the ALJ in the summation of the medical evidence supporting the RFC

27 determination, and contends the ALJ provided clear and convincing reasons for discounting

28 Plaintiff’s testimony beyond just inconsistency with the medical evidence. (Doc. 27 at 7–8.) The

1 Ninth Circuit has explained, however, that “summariz[ing] the medical evidence supporting [the]

2 RFC determination . . . is not the sort of explanation or the kind of ‘specific reasons’ [the Court]

3 must have in order to . . . ensure that the claimant’s testimony was not arbitrarily discredited.” See,

4 e.g., Brown-Hunter, 806 F.3d at 494. Thus, “the observations an ALJ makes as part of the summary

5 of the medical record are not sufficient to establish clear and convincing reasons for rejecting a

6 Plaintiff’s credibility. Instead, the ALJ must link the medical evidence at issue to the Plaintiff’s

7 testimony.” Argueta v. Colvin, No. 1:15–cv–01110–SKO, 2016 WL 4138577, at *13 (E.D. Cal.

8 Aug. 3, 2016) (citations omitted, emphasis in the original).

9 Here, the ALJ did not specifically identify which parts of the record conflicted with which

10 portions of Plaintiff’s testimony. Because this Court’s review is limited to the rationale provided

11 by the ALJ, the post-hoc rationalizations and inferences advanced by the Commissioner cannot

12 justify the ALJ’s rejection of Plaintiff’s subjective testimony. See Bray, 554 F.3d at 1225 (“Long-

13 standing principles of administrative law require [the court] to review the ALJ’s decision based on

14 the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that attempt to

15 intuit what the adjudicator may have been thinking.”); Ceguerra v. Sec’y of Health & Human Servs.,

16 933 F.2d 735, 738 (9th Cir. 1991) (“A reviewing court can evaluate an agency’s decision only on

17 the grounds articulated by the agency.”).

18 3. The ALJ’s Error Was Not Harmless

19 The Court now turns to the analysis of whether this error by the ALJ was harmless. The

20 Ninth Circuit “ha[s] long recognized that harmless error principles apply in the Social Security Act

21 context.” Molina, 674 F.3d at 1115 (citing Stout, 454 F.3d at 1054); see also Garcia v. Comm’r of

22 Soc. Sec., 768 F.3d 925, 932 n.10 (9th Cir. 2014) (stating that the harmless error analysis applies

23 where the ALJ errs by not discharging their duty to develop the record). As such, “the court will

24 not reverse an ALJ’s decision for harmless error.” Tommasetti, 533 F.3d at 1038 (citing Robbins,

25 466 F.3d at 885).

26 An error is harmless “where it is inconsequential to the ultimate nondisability

27 determination.” Molina, 674 F.3d at 1115 (citations omitted); see also Treichler v. Comm’r of Soc.

28 Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (stating that an error is also harmless “‘if the

1 agency’s path may reasonably be discerned,’ even if the agency ‘explains its decision with less than

2 ideal clarity’” (quoting Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 497 (2004)). “In

3 other words, in each case [courts] look at the record as a whole to determine whether the error alters

4 the outcome of the case.” Molina, 674 F.3d at 1115. “[T]he nature of [the] application” of the

5 “harmless error analysis to social security cases” is “fact-intensive―’no presumptions operate’ and

6 ‘[courts] must analyze harmlessness in light of the circumstances of the case.’” March v. Colvin,

7 792 F.3d 1170, 1172 (9th Cir. 2015) (quoting Molina, 674 F.3d at 1121). “[T]he burden of showing

8 that an error is harmful normally falls upon the party attacking the agency’s determination.”

9 Shinseki, 556 U.S. at 409 (citations omitted).

10 The Commissioner does not contend that any error by the ALJ in evaluating Plaintiff’s

11 credibility was harmless, and the record establishes that the ALJ’s error was not harmless. If the

12 ALJ had credited Plaintiff’s physical symptom statements regarding certain functional abilities and

13 included appropriate limitations in the RFC, that may have changed the disability determination,

14 especially given that Plaintiff alleged fairly significant limitations, including an inability to stand

15 for longer 15 minutes before needing to sit down for “at least 45 minutes.” (AR 65.) Thus, the error

16 was not “inconsequential to the ultimate nondisability determination,” Molina, 674 F.3d at 1115,

17 and was not harmless.

18 C. The ALJ’s Error Warrants Remand for Further Proceedings

19 Where the ALJ commits an error and that error is not harmless, the “ordinary . . . rule” is “to

20 remand to the agency for additional investigation or explanation.” Treichler, 775 F.3d at 1099

21 (citations omitted). The Ninth Circuit recognized a limited exception to this typical course where

22 courts “remand[] for an award of benefits instead of further proceedings.” Id. at 1100–01 (citations

23 omitted); see also id. at 1100 (noting that this exception is “sometimes referred to as the ‘credit-as-

24 true’ rule”). In determining whether to apply this exception to the “ordinary remand rule,” the court

25 must determine, in part, whether (1) “the record has been fully developed;” (2) “there are

26 outstanding issues that must be resolved before a determination of disability can be made;” and (3)

27 “further administrative proceedings would be useful.” Id. at 1101 (citations omitted). As to the last

28 inquiry, additional “[a]dministrative proceedings are generally useful where the record has not been

1 fully developed, there is a need to resolve conflicts and ambiguities, or the presentation of further

2 evidence . . . may well prove enlightening in light of the passage of time.” Id. (citations omitted).

3 Ultimately, “[t]he decision whether to remand a case for additional evidence or simply to award

4 benefits is in [the court’s] discretion.” Swenson, 876 F.2d at 689 (citation omitted).

5 The Court finds, contrary to Plaintiff’s assertion (see Doc. 21 at 14–15; Doc. 31 at 7–8), that

6 the “credit-as-true” exception to the “ordinary remand rule” is inapplicable in this case because

7 additional administrative proceedings would be useful. If the ALJ changes its evaluation of

8 Plaintiff’s subjective complaints, any warranted additional limitations should be incorporated in the

9 RFC. Conversely, there may be clear and convincing reasons the ALJ can offer for discounting the

10 testimony. See Voisard v. Berryhill, No. 2:17–CV–1023-EFB, 2018 WL 4488474, at *5 (E.D. Cal.

11 Sept. 19, 2018) (“That the ALJ failed to provide sufficient reasons for discounting plaintiff’s

12 subjective testimony in this instance does not compel a finding that he is unable to do so.”).

13 Even if the ALJ decides to credit as true some or all of Plaintiff’s symptom statements and

14 adjust their RFC determination for Plaintiff, the ALJ may still conclude that Plaintiff is not disabled

15 because he has the RFC to perform the requirements of other work that exists in significant numbers

16 in the national economy. The ALJ may also elect to further develop the record, if deemed necessary.

17 Further proceedings would therefore be useful to allow the ALJ to resolve this “outstanding

18 issue[ ]” before a proper disability determination can be made. See Varney v. Sec’y of Health &

19 Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988).

20 On remand, the ALJ should reevaluate Plaintiff’s symptom testimony and address any

21 necessary changes to the RFC determination.9 If the ALJ again discounts Plaintiff’s subjective

22 symptoms, they can then provide an adequate discussion of the specific testimony they are

23 discounting and the specific evidence that contradicts that testimony. See Payan v. Colvin, 672 F.

24 App’x 732, 733 (9th Cir. 2016). The ALJ must also reevaluate their conclusions at steps four and

25

9 As the Court finds that remand is appropriate for the ALJ to reconsider Plaintiff’s symptom testimony, the Court does

26 not reach Plaintiff’s additional assertion of error regarding Plaintiff’s current RFC (see Doc. 21 at 12–14; Doc. 31 at 6–

7), which may need be evaluated again. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand

27 the case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative ground for remand.”); Augustine

ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other

28 claims plaintiff raises, none of which would provide plaintiff with any further relief than granted, and all of which can

1 five of the disability determination in light of any changes to Plaintiff’s RFC.10

2 V. CONCLUSION AND ORDER

3 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by

4 substantial evidence and is therefore VACATED, and the case is REMANDED to the ALJ for

5 further proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter

6 judgment in favor of Plaintiff Hector Narvaiz and against Defendant Kilolo Kijakazi, Acting

7 Commissioner of Social Security.

8

IT IS SO ORDERED.

9

10 Dated: March 3, 2022 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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27 10 As the Court finds that remand is appropriate for the ALJ to reconsider Plaintiff’s symptom testimony, the Court does

not reach Plaintiff’s additional assertions of error regarding Plaintiff’s current RFC, which may need be evaluated again.

28 See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons