(SS) Sok v. Commissioner of Social Security

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ROTHY SOK, No. 2:21-cv-00990 CKD SS

12 Plaintiff,

13 v. ORDER

14 KILOLO KIJAKAZI, Acting

Commissioner of Social Security,

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Defendant.

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18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

19 (“Commissioner”) denying an application for Disability Income Benefits (“DIB”) under Title II

20 of the Social Security Act (“Act”). The parties have consented to magistrate judge jurisdiction to

21 conduct all proceedings in the case, including the entry of final judgment. For the reasons

22 discussed below, the court will grant plaintiff’s motion for summary judgment and deny the

23 Commissioner’s cross-motion for summary judgment.

24 BACKGROUND

25 Plaintiff, born in 1979, applied on October 23, 2018 for DIB, alleging disability beginning

26 January 18, 2018. Administrative Transcript (“AT”) 15, 25. Plaintiff alleged she was unable to

27 work due to back injury, anxiety, depression, panic, muscle pain, body tension, and migraine

28 headaches. AT 251, 275. In a decision dated October 19, 2020, the ALJ determined that plaintiff

1 was not disabled.1 AT 15-27. The ALJ made the following findings (citations to 20 C.F.R.

2 omitted):

3 1. The claimant meets the insured status requirements of the Social

Security Act through December 31, 2023.

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2. The claimant has not engaged in substantial gainful activity since

5 January 18, 2018, the amended alleged onset date.

6 3. The claimant has the following severe impairments: lumbar

bulging discs, major depressive disorder, and generalized anxiety

7 disorder.

8 4. The claimant does not have an impairment or combination of

impairments that meets or medically equals one of the listed

9 impairments in 20 CFR Part 404, Subpart P, Appendix 1.

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1 Disability Insurance Benefits are paid to disabled persons who have contributed to the

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Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to

12 disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in

part, as an “inability to engage in any substantial gainful activity” due to “a medically

13 determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A).

A parallel five-step sequential evaluation governs eligibility for benefits under both programs.

14 See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S.

137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation:

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Step one: Is the claimant engaging in substantial gainful

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activity? If so, the claimant is found not disabled. If not, proceed to

step two.

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Step two: Does the claimant have a “severe” impairment? If

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so, proceed to step three. If not, then a finding of not disabled is

appropriate.

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Step three: Does the claimant’s impairment or combination

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of impairments meet or equal an impairment listed in 20 C.F.R., Pt.

404, Subpt. P, App.1? If so, the claimant is automatically determined

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disabled. If not, proceed to step four.

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Step four: Is the claimant capable of performing his past

work? If so, the claimant is not disabled. If not, proceed to step five.

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Step five: Does the claimant have the residual functional

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capacity to perform any other work? If so, the claimant is not

disabled. If not, the claimant is disabled.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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27 The claimant bears the burden of proof in the first four steps of the sequential evaluation

process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the

28 burden if the sequential evaluation process proceeds to step five. Id.

1 5. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to perform

2 medium work, except the claimant is able to understand and

remember simple tasks. The claimant can perform simple work tasks

3 for two-hour increments over the course of a normal workday and

workweek. The claimant can maintain the social demands of a work-

4 like setting with occasional contact with the general public. The

claimant can adapt to changes in a work-like setting involving simple

5 cognitive tasks and limited social contact.

6 6. The claimant is unable to perform any past relevant work.2

7 7. The claimant was born [in] 1979 and was 38 years old, which is

defined as a younger individual age 18-49, on the amended disability

8 onset date.

9 8. The claimant has at least a high-school education.

10 9. Transferability of job skills is not material to the determination of

disability because using the Medical-Vocational Rules as a

11 framework supports a finding that the claimant is ‘not disabled,’

whether or not the claimant has transferable job skills.

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10. Considering the claimant’s age, education, work experience, and

13 residual functional capacity, there are jobs that exist in significant

numbers in the national economy that the claimant can perform.

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11. The claimant has not been under a disability, as defined in the

15 Social Security Act, from January 18, 2018, the amended alleged

onset date, through the date of this decision.

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17 AT 17-26.

18 ISSUES PRESENTED

19 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not

20 disabled: (1) the ALJ erred by rejecting multiple opinions by Workers’ Compensation providers;

21 (2) the ALJ erred by rejecting the treating and examining psychiatric opinions; and (3) the ALJ

22 erred in her analysis of plaintiff’s credibility and by failing to evaluate the lay witness testimony.

23 LEGAL STANDARDS

24 The court reviews the Commissioner’s decision to determine whether (1) it is based on

25 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record

26 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial

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2 Relying on vocational expert testimony, the ALJ noted that plaintiff had previously worked as a

28 psychiatric technician, a program coordinator, and a pharmacy technician. AT 25.

1 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340

2 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable

3 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th

4 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is

5 responsible for determining credibility, resolving conflicts in medical testimony, and resolving

6 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted).

7 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one

8 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

9 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th

10 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s

11 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not

12 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see

13 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the

14 administrative findings, or if there is conflicting evidence supporting a finding of either disability

15 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226,

16 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in

17 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

18 ANALYSIS

19 A. Credibility and Lay Testimony

20 Plaintiff asserts that the ALJ committed prejudicial errors in discounting her subjective

21 symptom testimony and the third-party statement of her live-in relative, Sothyda Ou.

22 1. Plaintiff’s Testimony

23 The ALJ summarized plaintiff’s statements about her symptoms and impairments as

24 follows:

25 The claimant reported that her back injury and psychiatric symptoms

prevented her from performing normal daily activities. She attested

26 that her impairments affected her abilities to lift, squat, bend, stand,

reach, walk, sit, kneel, climb stairs, see, remember, complete tasks,

27 concentrate, understand, follow instructions, and use her hands. She

elaborated that she could only lift up to five pounds and walk for

28 about a block before she needed to stop and rest. The claimant

1 testified that she is unable to work because of her impairments. She

testified that her psychiatric impairments cause depression,

2 irritability, anxiety, and make her unreliable. She testified that she

could only stand for fifteen to twenty minutes before she needs to sit,

3 which she could do for twenty minutes. She testified that she has

panic attacks. She testified that she is limited in her activities of daily

4 living.

5 AT 21, citing AT 318, 323. At the July 2020 hearing, plaintiff stated that she could not sit, stand,

6 do paperwork, or assess clients due to her back injury.3 AT 41. She testified that, after 15-20

7 minutes of standing, she would need to sit, and, after 20 minutes of sitting, she would need to get

8 up and walk. AT 42. She also testified as to mental symptoms related to depression and anxiety.

9 AT 41-46.

10 The ALJ determined that “the claimant’s statements concerning the intensity, persistence,

11 and limiting effects of [her alleged] symptoms are not entirely consistent with the medical

12 evidence and other evidence in the record for reasons explained in this decision.” AT 21.

13 The ALJ next summarized the longitudinal medical evidence, including a 2017 MRI of

14 plaintiff’s lumbar spine; four physical examinations and treatment notes in 2018; a psychiatric

15 consultative examination in 2019; treatment notes and exam results in 2019; and psychiatric

16 treatment and examination notes from 2018 through 2020. AT 21-23. The ALJ then assessed the

17 medical opinions. AT 23-25.

18 The ALJ did not explain how specific evidence undercut plaintiff’s testimony about

19 physical symptoms, except in the following instance:

20 Despite her alleged significant back pain, during the psychiatric

consultative examination on March 23, 2019, the claimant reported

21 that she enjoyed gardening to relieve her psychiatric symptoms

without alleging being limited in such task due to a physical

22 impairment.

23 AT 22, citing AT 1175. Aside from one reference to gardening, the ALJ did not link any

24 countervailing evidence to plaintiff’s alleged physical limitations, including limitations on sitting,

25 3 Plaintiff was in a car accident in 2016 and a lifting injury at work in 2017, resulting in

significant back pain. AT 564, 1174. After her work injury in July 2017, she was placed on

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modified duty and was limited to working part-time off and on until January 2018. AT 50-51,

27 449, 458, 1769, 1779. Her medical treatment records in 2018 and 2019 focused on low back

pain. See AT 21, 23 (summarizing medical opinions associated with worker’s compensation

28 claim).

1 standing, and walking.

2 As to mental symptoms, the ALJ noted that, in late 2019, plaintiff’s “psychiatric

3 symptoms were under control with medication” and she reported improvement in her symptoms.

4 AT 22. Earlier in the decision, the ALJ implied that certain evidence undercut plaintiff’s

5 subjective testimony as to attention span and concentration, writing as follows:

6 She alleged that she had a very short attention span, however, I note

that she provided very detailed responses within the function reports,

7 without notations of concentration difficulties. Treatment notes from

January 29, 2018 detailed that the claimant had a normal attention

8 span and concentration. Although the claimant reported

concentration difficulties that resulted in cooking injuries, later

9 records do not show that the claimant continued to endorse or be

treated for such difficulties. During a physical examination on May

10 10, 2018, the claimant was observed to have a normal attention span

and concentration. . . . Later treatment notes [suggest] that she was

11 able to drive to such treatment without concentration difficulties.

12 AT 19 (record citations omitted). Similarly, the ALJ linked specific evidence to plaintiff’s

13 alleged problems with motivation and activities of daily living, concluding that she had a mild

14 limitation in adapting or managing herself. AT 19. The ALJ also linked specific evidence to

15 plaintiff’s alleged impaired memory and difficulties with instruction, concluding that she had a

16 moderate limitation in understanding, remembering, and applying information. AT 18-19.

17 The ALJ determines whether a disability applicant is credible, and the court defers to the

18 ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g.,

19 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an

20 explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v.

21 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be

22 supported by “a specific, cogent reason for the disbelief”). “Without affirmative evidence

23 showing that the claimant is malingering, the Commissioner’s reasons for rejecting the claimant’s

24 testimony must be clear and convincing.” Morgan v. Commissioner of Social Sec. Admin., 169

25 F.3d 595, 599 (9th Cir. 1999).

26 The Ninth Circuit recently clarified that, when discounting subjective testimony, an ALJ

27 must provide “specific, clear, and convincing reasons for doing so.” Wade v. Saul, 850 F. App’x

28 568, 569 (9th Cir. 2021) (emphasis in original), citing Lambert v. Saul, 980 F.3d 1266, 1277–78

1 (9th Cir. 2020).

2 To be sure, we confirm our precedent does “not require ALJs to

perform a line-by-line exegesis of the claimant’s testimony....”

3 Lambert, 980 F.3d at 1277. But the ALJ’s detailed overview of [the

claimant’s] medical history—coupled with a nonspecific boilerplate

4 conclusion that her testimony was “not entirely consistent” with her

medical treatment—was not enough to satisfy the minimal

5 requirements for assessing credibility. Id. at 1277–78; see Brown-

Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (“We cannot

6 review whether the ALJ provided specific, clear, and convincing

reasons for rejecting [claimant’s symptom] testimony where, as here,

7 the ALJ never identified which testimony she found not credible, and

never explained which evidence contradicted that testimony.”).

8 Summarizing [the claimant’s] testimony about her limitations from

her mental impairments, and later mentioning that her symptoms

9 improved with medication and treatment, does not provide clear and

convincing reasons to discredit that testimony. See Lambert, 980

10 F.3d at 1278. This is reversible error. Id. (“Because the ALJ did not

provide enough ‘reasoning in order for us to meaningfully determine

11 whether the ALJ’s conclusions were supported by substantial

evidence,’ we cannot treat the error as harmless.” (quoting Treichler

12 v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir.

2014))).

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14 Wade, 850 F. App’s at 569.

15 Similarly, here, the ALJ’s boilerplate assertion that plaintiff’s testimony was inconsistent

16 with the medical record and opinions, is not legally sufficient to reject plaintiff’s testimony about

17 her physical symptoms under the Lambert standard. Because it is not clear whether the residual

18 functional capacity for medium work was supported by substantial evidence, the court finds

19 prejudicial error on this basis.

20 2. Third-Party Testimony

21 The ALJ reviewed a third-party function report by plaintiff’s aunt-in-law, writing as

22 follows:

23 I have considered the third party function report submitted by

Sothyda Ou, the claimant’s aunt-in-law. Ms. Ou indicated that the

24 claimant’s impairments prevented the claimant from doing her

normal daily activities. Ms. Ou noted that the claimant’s

25 impairments affected her abilities to lift, squat, bend, stand, reach,

walk, sit, kneel, climb stairs, remember, complete tasks, concentrate,

26 understand, follow instructions, and use her hands.

27 AT 21, citing AT 310-317. The ALJ did not further remark on Ms. Ou’s statement or provide any

28 reason for rejecting it, short of the general discussion of the medical evidence and opinions set

1 forth above.

2 “[L]ay witness testimony as to a claimant’s symptoms or how an impairment affects

3 ability to work is competent evidence, and therefore cannot be disregarded without comment.”

4 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); see also Dodrill v. Shalala, 12 F.3d 915,

5 918-19 (9th Cir. 1993) (friends and family members in a position to observe a plaintiff's

6 symptoms and daily activities are competent to testify to condition). “If the ALJ wishes to

7 discount the testimony of the lay witnesses, he must give reasons that are germane to each

8 witness.” Dodrill, 12 F.3d at 919.

9 The ALJ failed to provide reasons for discounting the testimony of Ms. Ou, which if

10 credited would have been material to the disability determination. Insofar as the ALJ’s reasons

11 for rejecting Ms. Ou’s testimony were the same as the reasons for discounting plaintiff’s

12 testimony, the ALJ’s general discussion of the evidence was inadequate for the reasons set forth

13 above. The court finds prejudicial error on this basis as well. Plaintiff is entitled to summary

14 judgment.4

15 CONCLUSION

16 With error established, the court has the discretion to remand or reverse and award

17 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded

18 under the “credit-as-true” rule for an award of benefits where:

19 (1) the record has been fully developed and further administrative

proceedings would serve no useful purpose; (2) the ALJ has

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failed to provide legally sufficient reasons for rejecting evidence,

21 whether claimant testimony or medical opinion; and (3) if the

improperly discredited evidence were credited as true, the ALJ

22 would be required to find the claimant disabled on remand.

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24 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the

25 “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when

26 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within

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28 4 The court does not reach the remaining claims.

1 | the meaning of the Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d

2 | 403, 407 (9th Cir. 2015) (‘Unless the district court concludes that further administrative

3 || proceedings would serve no useful purpose, it may not remand with a direction to provide

4 | benefits.”); Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir.

5 || 2014) (‘Where ... an ALJ makes a legal error, but the record is uncertain and ambiguous, the

6 || proper approach is to remand the case to the agency.”).

7 Here, the record as a whole creates serious doubt as to whether the claimant was, in fact,

8 | disabled during the relevant period. On remand, the ALJ is free to develop the record as needed,

9 || including asking a vocational expert hypothetical questions about available jobs based on a

10 || revised RFC. The court expresses no opinion regarding how the evidence should ultimately be

11 || weighed, and any ambiguities or inconsistencies resolved, on remand. The court also does not

12 || imstruct the ALJ to credit any particular opinion or testimony. The ALJ may ultimately find

13 | plaintiff disabled during the entirety of the relevant period; may find plaintiff eligible for some

14 | type of closed period of disability benefits; or may find that plaintiff was never disabled during

15 || the relevant period, provided that the ALJ’s determination complies with applicable legal

16 || standards and is supported by the record as a whole.

17 For the foregoing reasons, IT IS HEREBY ORDERED THAT:

18 1. Plaintiffs motion for summary judgment (ECF No. 11) is granted;

19 2. The Commissioner’s cross-motion for summary judgment (ECF No. 12) is denied; and

20 3. The matter is remanded for further administrative proceedings consistent with this

21 | order.

22 | Dated: September 26, 2022 / ae / 4 [iy ai

8 CAROLYNK. DELANEY

24 UNITED STATES MAGISTRATE JUDGE

25 || 2/sok990.dib.ckd

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