(SS) Ortiz Arevalo 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 MANUEL ORTIZ AREVALO, Case No. 1:22-cv-01331-DJC-HBK

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

GRANT PLAINTIFF’S MOTION FOR

13 v. SUMMARY JUDGMENT, DENY

DEFENDANT’S CROSS-MOTION FOR

14 MARTIN O’MALLEY, SUMMARY JUDGMENT, AND REMAND

COMMISSIONER OF SOCIAL CASE TO THE COMMISSIONER OF

15 SECURITY,1 SOCIAL SECURITY2

16 Defendant. FOURTEEN-DAY OBJECTION PERIOD

17 (Doc. No. 15, 19)

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19 Manuel Ortiz Arevalo (“Plaintiff”) seeks judicial review of a final decision of the

20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for

21 disability insurance benefits under the Social Security Act. (Doc. No. 1). The matter is currently

22 before the Court on the parties’ briefs, which were submitted without oral argument. (Doc. Nos.

23 15, 19-20). For the reasons stated, the undersigned RECOMMENDS granting Plaintiff’s motion

24 for summary judgment, denying the Commissioner’s cross-motion for summary judgment, and

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26 1 The Court has substituted Martin O’Malley, who has been appointed the Acting Commissioner of Social

Security, as the defendant in this suit. See Fed. R. Civ. P. 25(d).

27 2 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302

(E.D. Cal. 2022).

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1 remanding for further administrative proceedings.

2 I. JURISDICTION

3 Plaintiff protectively filed for disability insurance benefits on October 3, 2019, alleging an

4 onset date of September 20, 2018. (AR 323-26). Benefits were denied initially (AR 77-84, 97-

5 101), and upon reconsideration (AR 85-96, 103-07). Plaintiff appeared at a telephonic hearing

6 before an Administrative Law (“ALJ”) on February 25, 2021, and again on August 3, 2021. (AR

7 37-76). Plaintiff was represented by counsel at the second hearing, and testified at both hearings

8 with an interpreter. (Id.). On August 17, 2021, the ALJ issued an unfavorable decision (AR 15-

9 36), and on August 15, 2022 the Appeals Council denied review (AR 1-8). The matter is now

10 before this Court pursuant to 42 U.S.C. § 405(g).

11 II. BACKGROUND

12 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s

13 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are

14 summarized here.

15 Plaintiff was 50 years old at the time of the second hearing. (AR 58). He did not

16 complete first grade, and testified that he is illiterate. (AR 58). He lives with a friend. (AR 58).

17 Plaintiff has work history as a forklift operator, tractor operator, and landscape laborer. (AR 59,

18 67-68). Plaintiff testified that he can no longer work because of back pain and numbness in his

19 legs. (AR 59). He reported dizziness and anxiety, testified he has pain in his legs and they fall

20 asleep, and reported he does not sleep well. (AR 60). Plaintiff can stand for 10 minutes before he

21 has to change positions, he cannot lift more than 5 pounds, he can sit for 7 minutes before he has

22 to change positions, and he can only walk for 10 minutes at one time because he has leg pain and

23 numbness. (AR 61-62). He testified that he has to lay down two or three times a day to get rid of

24 the pain, has trouble leaning forward, and has numbness in his legs every day. (AR 62-64).

25 III. STANDARD OF REVIEW

26 A district court’s review of a final decision of the Commissioner of Social Security is

27 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the

28 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or

1 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial

2 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a

3 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence

4 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and

5 citation omitted). In determining whether the standard has been satisfied, a reviewing court must

6 consider the entire record as a whole rather than searching for supporting evidence in isolation.

7 Id.

8 In reviewing a denial of benefits, a district court may not substitute its judgment for that of

9 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible

10 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.

11 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is

12 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate

13 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s

14 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556

15 U.S. 396, 409-10 (2009).

16 IV. SEQUENTIAL EVALUATION PROCESS

17 A claimant must satisfy two conditions to be considered “disabled” within the meaning of

18 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful

19 activity by reason of any medically determinable physical or mental impairment which can be

20 expected to result in death or which has lasted or can be expected to last for a continuous period

21 of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment

22 must be “of such severity that he is not only unable to do his previous work[,] but cannot,

23 considering his age, education, and work experience, engage in any other kind of substantial

24 gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).

25 The Commissioner has established a five-step sequential analysis to determine whether a

26 claimant satisfies the above criteria. See 20 C.F.R. § 404.1520(a)(4)(i)-(v). At step one, the

27 Commissioner considers the claimant’s work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the

28 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the

1 claimant is not disabled. 20 C.F.R. § 404.1520(b).

2 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step

3 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20

4 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers from “any impairment or combination of

5 impairments which significantly limits [his or her] physical or mental ability to do basic work

6 activities,” the analysis proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s

7 impairment does not satisfy this severity threshold, however, the Commissioner must find that the

8 claimant is not disabled. 20 C.F.R. § 404.1520(c).

9 At step three, the Commissioner compares the claimant’s impairment to severe

10 impairments recognized by the Commissioner to be so severe as to preclude a person from

11 engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii). If the impairment is as

12 severe or more severe than one of the enumerated impairments, the Commissioner must find the

13 claimant disabled and award benefits. 20 C.F.R. § 404.1520(d).

14 If the severity of the claimant’s impairment does not meet or exceed the severity of the

15 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual

16 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s

17 ability to perform physical and mental work activities on a sustained basis despite his or her

18 limitations, 20 C.F.R. § 404.1545(a)(1), is relevant to both the fourth and fifth steps of the

19 analysis.

20 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the

21 claimant is capable of performing work that he or she has performed in the past (past relevant

22 work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is capable of performing past relevant

23 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 404.1520(f). If

24 the claimant is incapable of performing such work, the analysis proceeds to step five.

25 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the

26 claimant is capable of performing other work in the national economy. 20 C.F.R. §

27 404.1520(a)(4)(v). In making this determination, the Commissioner must also consider

28 vocational factors such as the claimant’s age, education, and past work experience. 20 C.F.R. §

1 404.1520(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must

2 find that the claimant is not disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable

3 of adjusting to other work, analysis concludes with a finding that the claimant is disabled and is

4 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1).

5 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel,

6 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the

7 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such

8 work “exists in significant numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2);

9 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012).

10 V. ALJ’S FINDINGS

11 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity

12 since September 20, 2018, the alleged onset date. (AR 24). At step two, the ALJ found that

13 Plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine with

14 stenosis, spondylosis, and radiculopathy; obesity; and contracture of muscle. (AR 24). At step

15 three, the ALJ found that Plaintiff does not have an impairment or combination of impairments

16 that meets or medically equals the severity of a listed impairment. (AR 24). The ALJ then found

17 that Plaintiff has the RFC

18 to perform light work as defined in 20 CFR 404.1567(b) except the

claimant can occasionally lift and/or carry 25 pounds. The claimant

19 [can] frequently lift and/or carry 25 pounds. The claimant can

occasionally push or pull or operate foot controls with both lower

20 extremities. The claimant can occasionally kneel, crouch, stoop,

balance, and crawl, and can occasionally climb stairs and ramps. The

21 claimant can never climb ladders, ropes and scaffolds, and can never

be exposed to unprotected heights and moving mechanical parts The

22 claimant can tolerate occasional exposure to vibration. In addition,

the claimant is able to understand, carry-out, and remember simple

23 instructions, and make simple work related decisions.

24 (AR 25). At step four, the ALJ found that Plaintiff is unable to perform any past relevant work.

25 (AR 28). At step five, the ALJ found that considering Plaintiff’s age, education, work

26 experience, and RFC, there are jobs that exist in significant numbers in the national economy that

27 Plaintiff can perform, including garment folder, office cleaner, and bottling line attendant. (AR

28 29-30). On that basis, the ALJ concluded that Plaintiff has not been under a disability, as defined

1 in the Social Security Act, from September 20, 2018, through the date of the decision. (AR 30).

2 VI. ISSUES

3 Plaintiff seeks judicial review of the Commissioner’s final decision denying him disability

4 insurance benefits under Title II of the Social Security Act. (Doc. No. 1). Plaintiff raises the

5 following issues for this Court’s review:

6 1. Whether the ALJ properly considered the medical opinion evidence; and

7 2. Whether the ALJ properly considered Plaintiff’s symptom claims.

8 (Doc. No. 15 at 9-15).

9 VII. DISCUSSION

10 A. Medical Opinions

11 For claims filed on or after March 27, 2017, new regulations apply that change the

12 framework for how an ALJ must evaluate medical opinion evidence. Revisions to Rules

13 Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18,

14 2017); 20 C.F.R. § 404.1520c. The new regulations provide that the ALJ will no longer “give

15 any specific evidentiary weight…to any medical opinion(s)…” Revisions to Rules, 2017 WL

16 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 404.1520c(a). Instead, an ALJ must

17 consider and evaluate the persuasiveness of all medical opinions or prior administrative medical

18 findings from medical sources. 20 C.F.R. § 404.1520c(a) and (b). The factors for evaluating the

19 persuasiveness of medical opinions and prior administrative medical findings include

20 supportability, consistency, relationship with the claimant (including length of the treatment,

21 frequency of examinations, purpose of the treatment, extent of the treatment, and the existence of

22 an examination), specialization, and “other factors that tend to support or contradict a medical

23 opinion or prior administrative medical finding” (including, but not limited to, “evidence showing

24 a medical source has familiarity with the other evidence in the claim or an understanding of our

25 disability program’s policies and evidentiary requirements”). 20 C.F.R. § 404.1520c(c)(1)-(5).

26 Supportability and consistency are the most important factors, and therefore the ALJ is

27 required to explain how both factors were considered. 20 C.F.R. § 404.1520c(b)(2).

28 Supportability and consistency are explained in the regulations:

1 (1) Supportability. The more relevant the objective medical evidence and

supporting explanations presented by a medical source are to support his or

2 her medical opinion(s) or prior administrative medical finding(s), the more

persuasive the medical opinions or prior administrative medical finding(s)

3 will be.

4 (2) Consistency. The more consistent a medical opinion(s) or prior

administrative medical finding(s) is with the evidence from other medical

5 sources and nonmedical sources in the claim, the more persuasive the

medical opinion(s) or prior administrative medical finding(s) will be.

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20 C.F.R. § 404.1520c(c)(1)-(2). The ALJ may, but is not required to, explain how the other

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factors were considered. 20 C.F.R. § 404.1520c(b)(2). However, when two or more medical

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opinions or prior administrative findings “about the same issue are both equally well-supported ...

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and consistent with the record ... but are not exactly the same,” the ALJ is required to explain how

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“the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20

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C.F.R. § 404.1520c(b)(3).

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The Ninth Circuit has additionally held that the new regulatory framework displaces the

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longstanding case law requiring an ALJ to provide “specific and legitimate” or “clear and

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convincing” reasons for rejecting a treating or examining doctor’s opinion. Woods v. Kijakazi, 32

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F.4th 785 (9th Cir. 2022). Nonetheless, in rejecting an examining or treating doctor’s opinion as

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unsupported or inconsistent, an ALJ must still provide an explanation supported by substantial

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evidence. Id. at 792. This means that the ALJ “must ‘articulate ... how persuasive’ [he or she]

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finds ‘all of the medical opinions’ from each doctor or other source ... and ‘explain how [he or

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she] considered the supportability and consistency factors’ in reaching these findings.” Id. (citing

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20 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)).

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Plaintiff argues the “ALJ’s RFC determination is unsupported by substantial evidence as

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he failed to mention, much less properly evaluate the opinion of Plaintiff’s treating physician, Dr.

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Richard E. Sall, M.D. (Doc. No. 15 at 9-13). In March 2020, Dr. Sall opined that Plaintiff could

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walk half a city block without rest or severe pain; could sit for 20 minutes at a time for a total of

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less than 2 hours total in an 8-hour workday; could stand for 15 minutes at a time for a total of

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less than 2 hours total in an 8-hour workday; would need to shift positions at will from sitting,

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standing, or walking; would need an assistive device for standing and walking due to imbalance,

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1 pain, and weakness; could occasionally lift less than 10 pounds; could never twist, stoop, crouch,

2 squat, or climb ladders; could rarely climb stairs; had no limitations with reaching, handling, or

3 fingering; would be off task 25% or more of a typical workday; was incapable of even low stress

4 work; and would be absent about four days per month if he tried to work full time. (AR 837-39).

5 The ALJ “considered the worker’s compensation work restrictions and opinions throughout the

6 record, along with the treating source statements. The [ALJ] found these to be unpersuasive and

7 inconsistent with the medical evidence in this case.” (AR 28).

8 As an initial matter, Plaintiff argues the ALJ failed to consider Dr. Sall’s treating opinion

9 as a “separate opinion wholly unrelated to Plaintiff’s worker compensation claims” and therefore

10 erred because he “either mischaracterized Dr. Sall’s medical source statement or failed to address

11 it entirely.” (Doc. No. 15 at 11). Here, aside from the state agency prior administrative medical

12 findings, the ALJ considered all of the “opinions throughout the record” jointly and provided only

13 a string citation to those opinions, which were almost entirely comprised of findings related to

14 Plaintiff’s worker’s compensation claim, without reference to any specific limitation opined by

15 any source. (AR 28). As stated above, the new regulations provide that the ALJ will no longer

16 “give any specific evidentiary weight…to any medical opinion(s)…” Revisions to Rules, 2017

17 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see also 20 C.F.R. §§ 404.1520c(a). However,

18 under the new regulations and Ninth Circuit law, “[t]he agency must ‘articulate ... how

19 persuasive’ it finds ‘all of the medical opinions’ from each doctor or other source, 20 C.F.R. §

20 404.1520c(b), and “explain how [it] considered the supportability and consistency factors” in

21 reaching these findings, id. § 404.1520c(b)(2).” Woods, 32 F.4th at 792 (emphasis added); see

22 also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (when considering the medical opinion

23 evidence, the ALJ must do more than state a conclusion; rather, the ALJ must “set forth his own

24 interpretations and explain why they, rather than the doctors’, are correct.”); Brown-Hunter v.

25 Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (a court “cannot substitute [the court's] conclusions for

26 the ALJ’s, or speculate as to the grounds for the ALJ's conclusions. Although the ALJ’s analysis

27 need not be extensive, the ALJ must provide some reasoning in order for [the court] to

28 meaningfully determine whether the ALJ’s conclusions were supported by substantial

1 evidence.”).

2 Regardless, as argued by Plaintiff, even were the Court to find that the ALJ sufficiently

3 identified the limitations opined by Dr. Sall by including his opinion along with “dozens” of

4 workers compensation assessments in a string cite, “the explanation the ALJ provided is not

5 sufficient.” (Doc. No 15 at 11). The entirety of the ALJ’s reasoning as to the “worker’s

6 compensation work restrictions and opinions throughout the record, along with the treating source

7 opinions” is as follows:

8 The undersigned has found these to be unpersuasive and inconsistent

with the medical evidence in this case. These opinions were formed

9 in the context of worker’s compensation assessments. These

opinions provided generally that the claimant had temporary

10 disability ratings, or denote the claimant’s ability to perform certain

actions. The opinions consist of circled responses with undefined

11 values, and no evidence is provided in support of these responses.

Furthermore, as described, these disability and impairment ratings

12 are temporary in nature, and do not encompass the full period

relevant to this determination. Finally, there is insufficient evidence

13 provided to support such ratings, which are already standalone in

nature.

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15 (AR 28). First, Dr. Sall completed a separate “physical medical source statement” as Plaintiff’s

16 treating physician, wherein he opined Plaintiff’s prognosis was “poor,” his impairments lasted or

17 can be expected to last at least twelve months, and the onset date for the limitations was

18 September 2018. (AR 837-40). Thus, the ALJ’s reasoning that the non-state agency opinions

19 were unpersuasive because they were formed in the context of a worker’s compensation claim,

20 provided temporary disability ratings, or were “standalone in nature,” does apply to Dr. Sall’s

21 opinion.

22 Next, as to the consistency factor, the ALJ generally finds, without citation to the record

23 or supporting evidence, that the non-state agency reviewing opinions, as a whole, are

24 “inconsistent with the medical evidence in this case.” (AR 28). Plaintiff argues the ALJ failed to

25 “properly account for the consistency of [Dr. Sall’s] opinion as required by the prevailing

26 regulations.” (Doc. No. 15 at 13). The Court agrees. The ALJ only provides a string cite of

27 worker’s compensation opinions and treating source statements “throughout the record,” without

28 reference to any evidence from the record that is inconsistent with the precise limitations opined

1 by Dr. Sall, or explanation as to how the “medical evidence” was inconsistent with those

2 limitations. (See AR 28); see Woods, 32 F.4th at 792 (in rejecting an examining or treating

3 doctor’s opinion as unsupported or inconsistent under the new regulations, an ALJ must still

4 provide an explanation supported by substantial evidence). Defendant cites portions of the ALJ’s

5 summary of the medical evidence, comprised entirely of Dr. Sall’s own treatment records, that

6 could arguably support a finding of inconsistency with his opined limitations, including no

7 swelling, deformity, or tenderness, normal gait, equal and active reflexes in the lower extremities,

8 opined permanent restriction of no lifting over 10 pounds, and imaging results showing mild disc

9 bulges at three levels with no nerve root impingement. (Doc. No. 19 at 7 (citing AR 27-28, 550,

10 921-22)).

11 However, while a portion of the evidence cited by Defendant was included in the ALJ’s

12 summary of the medical evidence, it was not cited by the ALJ as evidence of inconsistency

13 between Dr. Sall’s opinion and the overall record. (See AR 28); Bray v. Comm'r of Soc. Sec.

14 Admin., 554 F.3d 1219, 1226 (9th Cir. 2009) (the Court “review[s] the ALJ's decision based on

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

16 to intuit what the adjudicator may have been thinking.”). Further, as noted by Plaintiff and

17 observed in the treatment notes cited by Defendant supra, while the longitudinal record contains

18 evidence of more benign examination findings, the record also includes ongoing evidence, taken

19 almost entirely from Dr. Sall’s own treatment notes, of decreased range of motion, decreased

20 strength in lower extremities, decreased sensation, positive straight leg testing, and tenderness to

21 palpation. (Doc. No. 15 at 12-13; AR 545 (noting herniated disc), 550, 555, 562, 569 (noting no

22 improvement for more than a year), 575, 581, 587, 593, 624, 633, 639, 659, 668, 683, 690, 702,

23 730, 737, 744, 756, 773, 782, 791). Based on the foregoing, the ALJ’s finding that all of the non-

24 state agency reviewing opinions, including Dr. Sall’s, were unpersuasive because they were

25 inconsistent with the medical evidence, was not supported by substantial evidence.

26 Finally, as to the supportability factor, the ALJ found the non-state agency reviewing

27 opinions, presumably including Dr. Sall’s, “consist of circled responses with undefined values,

28 and no evidence is provided in support of these responses.” (AR 28). Under the new regulations,

1 “the more relevant the objective medical evidence and supporting explanations presented by a

2 medical source are to support” the medical opinion, the more persuasive the medical opinion will

3 be. 20 C.F.R. § 404.1520c(c)(1); see also Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (“the

4 ALJ may permissibly reject check-off reports that do not contain any explanation of the bases of

5 their conclusion.”); see also Gitchell v. Comm'r of Soc. Sec., 2023 WL 1785914, at *15 (E.D. Cal.

6 Feb. 6, 2023) (holding ALJ appropriately considered supportability factor by finding opining

7 doctor did not cite to specific objective findings to support his opinions). Here, however, Dr.

8 Sall’s opinion specifically identified clinical findings and objective signs in support of his

9 assessed limitations, including impaired forward flexion and lumbosacral junction, positive

10 straight leg raise test on the right side, decreased right knee reflex, decreased right leg sensation,

11 and weakness of the right leg. (Doc. No. 15 at 12 (citing AR 837)). Moreover, Dr. Sall

12 responded “yes” to the question “[a]re your patient’s impairments . . . as demonstrated by signs,

13 clinical findings, and laboratory or test results reasonably consistent with the symptoms and

14 functional limitations described above in this evaluation.” (AR 840). Finally, it is well-settled in

15 the Ninth Circuit that when a treating physician’s check-box opinion was “based on significant

16 experience with [Plaintiff] and supported by numerous records, [it was] therefore entitled to

17 weight that an otherwise unsupported and unexplained check-box form would not merit.”

18 Garrison, 759 F.3d at 1013. As noted by Plaintiff, and discussed supra, Dr. Sall’s treatment

19 notes routinely observed decreased range of motion, decreased strength in lower extremities,

20 decreased sensation, and positive straight leg testing. (Doc. No. 15 at 13). Thus, to the extent the

21 ALJ specifically considered Dr. Sall’s opined limitations under the new regulations, the ALJ’s

22 supportability finding is not supported by substantial evidence.

23 For all of these reasons, the ALJ’s rejection of Dr. Sall’s opinion is not supported by

24 substantial evidence. On remand the ALJ must reconsider Dr. Sall’s opinion along with any

25 relevant medical opinion evidence.

26 B. Symptom Claims

27 An ALJ engages in a two-step analysis when evaluating a claimant’s testimony regarding

28 subjective pain or symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).

1 The ALJ first must determine whether there is “objective medical evidence of an underlying

2 impairment which could reasonably be expected to produce the pain or other symptoms alleged.”

3 Id. (internal quotation marks omitted). “The claimant is not required to show that his impairment

4 could reasonably be expected to cause the severity of the symptom he has alleged; he need only

5 show that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572

6 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted).

7 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the

8 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ]

9 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d

10 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are

11 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence

12 undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir.

13 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a

14 credibility determination with findings sufficiently specific to permit the court to conclude that

15 the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and convincing

16 [evidence] standard is the most demanding required in Social Security cases.” Garrison v.

17 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278

18 F.3d 920, 924 (9th Cir. 2002)).

19 Here, the ALJ found Plaintiff’s medically determinable impairments could reasonably be

20 expected to cause some of the alleged symptoms; however, Plaintiff’s “statements concerning the

21 intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the

22 medical evidence and other evidence in the record.” (AR 26). Plaintiff argues that that the ALJ

23 then “proceeded to summarize the treatment records that detail Plaintiff’s reported symptoms,

24 objective findings, and treatment plans. This fails to state a clear and convincing reason for

25 rejecting Plaintiff’s testimony.” (Doc. No. 15 at 14-15). The Court agrees. The Ninth Circuit

26 does “not require ALJs to perform a line-by-line exegesis of the claimant’s testimony, nor do they

27 require ALJs to draft dissertations when denying benefits.” Lambert v. Saul, 980 F.3d 1266, 1277

28 (9th Cir. 2020); Smartt v. Kijakazi, 53 F. 4th 489, 499 (9th Cir. 2022) (“The standard isn’t

1 whether our court is convinced, but instead whether the ALJ’s rationale is clear enough that it has

2 the power to convince.”)). However, “[a]n ALJ does not provide specific, clear, and convincing

3 reasons for rejecting a claimant's testimony by simply reciting the medical evidence in support of

4 his or her residual functional capacity determination.” Brown-Hunter, 806 F.3d at 489. Instead,

5 “the ALJ must specifically identify the testimony she or he finds not to be credible and must

6 explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195 (9th

7 Cir. 2001); Brown-Hunter, 806 F.3d at 494 (“To ensure that our review of the ALJ’s credibility

8 determination is meaningful, and that the claimant’s testimony is not rejected arbitrarily, we

9 require the ALJ to specify which testimony she finds not credible, and then provide clear and

10 convincing reasons, supported by the evidence in the record, to support that credibility

11 determination.”).

12 Here, a plain reading of the ALJ’s decision indicates that while he identified Plaintiff’s

13 claims of back pain and radiculopathy, the ALJ’s analysis is entirely comprised of a chronological

14 summary of the medical evidence including Plaintiff’s reports of persistent pain and difficulty

15 walking despite acupuncture and physical therapy treatment; diminished strength, range of

16 motion, and sensation in the right lower extremity; positive right leg straight leg tests; imaging

17 showing mild degenerative changes, mild foraminal stenosis, and mild disc bulges with no nerve

18 root impingement; improvement in range of motion testing “over time”; reports of increased and

19 persistent pain despite being treated with medication; and indications that Plaintiff was denied

20 authorization for medication and injections. (AR 26-27, 474-75, 482-83, 540, 550, 557, 563, 587,

21 593, 639, 643, 663 (noting lack of improvement with conservative care), 680, 692-93, 747, 764

22 (feels he is not improving), 795, 815, 821, 845, 853, 893, 956, 975). The ALJ’s general finding

23 that Plaintiff’s symptom claims were not entirely consistent with the medical record, without

24 identification or explanation as to how the medical evidence undermined his testimony was not a

25 clear and convincing reason, supported by substantial evidence, to reject his symptom claims.

26 Defendant references the ALJ’s summary of Plaintiff’s testimony regarding his symptoms,

27 as well as the ALJ’s summary of the medical evidence, and argues those portions of the decision

28 include additional reasons given by the ALJ for discounting Plaintiff’s symptom claims. (Doc.

1 No. 19 at 10-11). These reasons include lack of corroboration by objective evidence that shows

2 mild disc bulges at three levels with no nerve root impingement and benign examination findings

3 “regarding Plaintiff’s strength and gait”; “conservative treatment” with physical therapy,

4 acupuncture, and work conditioning; unidentified daily activities that contradict Plaintiff’s

5 symptom claims; and a single report that Plaintiff’s prescribed medication helped alleviate pain.

6 (Id.). Factors the ALJ may consider when evaluating Plaintiff’s symptom claims include the

7 objective medical evidence, the claimant’s treatment history, the claimant’s daily activities,

8 effectiveness of treatment, and inconsistencies in testimony. Ghanim, 763 F.3d at 1163; see

9 Tommasetti, 533 F.3d at 1040 (a favorable response to treatment can undermine a claimant's

10 complaints of debilitating pain or other severe limitations); Bunnell v. Sullivan, 947 F.2d 341,

11 346-47 (9th Cir. 1991) (ALJ may not discredit a claimant’s pain testimony and deny benefits

12 solely because the degree of pain alleged is not supported by objective medical evidence);

13 Rollins, 261 F.3d at 857 (ALJ may consider a claimant’s activities that undermine reported

14 symptoms).

15 However, as discussed supra, this evidence was noted as part of the ALJ’s summary of

16 Plaintiff’s testimony and the medical record; thus, the Court is not permitted to consider these

17 “reasons” as they were not offered by the ALJ in the decision as reasons to discount Plaintiff’s

18 symptom claims. Bray, 554 F.3d at 1226 (the Court “review[s] the ALJ's decision based on the

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

20 intuit what the adjudicator may have been thinking.”). Moreover, while the ALJ includes

21 instances of reported effectiveness of treatment and treatment history as part of the summary of

22 the medical record, as noted above, he fails to specifically identify or explain how any specific

23 portion of Plaintiff’s treatment history undermines his claimed limitations. See Brown-Hunter,

24 806 F.3d at 494. Thus, to the extent offered as such, they do not rise to the level of a clear and

25 convincing reason, supported by substantial evidence, to wholly reject Plaintiff’s symptom

26 claims. Finally, as noted by Plaintiff, regardless of whether the ALJ properly supported a finding

27 that Plaintiff’s symptom claims were not corroborated by objective testing and physical

28 examinations, it is well-settled in the Ninth Circuit that an ALJ may not discredit a claimant’s

1 pain testimony and deny benefits solely because the degree of pain alleged is not supported by

2 objective medical evidence. (Doc. No. 15 at 14); Rollins, 261 F.3d at 857; Bunnell, 947 F.2d at

3 346-47.

4 The Court concludes that the ALJ did not provide clear and convincing reasons, supported

5 by substantial evidence, for rejecting Plaintiff’s symptom claims. On remand, the ALJ must

6 reconsider Plaintiff’s symptom claims.

7 C. Remedy

8 The Court finds in this case that further administrative proceedings are appropriate. See

9 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) (remand for

10 benefits is not appropriate when further administrative proceedings would serve a useful

11 purpose). Here, the ALJ improperly considered the medical opinion evidence and Plaintiff’s

12 symptom claims, which calls into question whether the assessed RFC, and resulting hypothetical

13 propounded to the vocational expert, are supported by substantial evidence. “Where,” as here,

14 “there is conflicting evidence, and not all essential factual issues have been resolved, a remand for

15 an award of benefits is inappropriate.” Treichler, 775 F.3d at 1101. Thus, the undersigned

16 recommends the case be remanded for further proceedings. On remand, the ALJ should

17 reconsider the medical opinion evidence, and provide legally sufficient reasons for evaluating the

18 opinions, supported by substantial evidence. If necessary, the ALJ should order additional

19 consultative examinations and, if appropriate, take additional testimony from medical experts.

20 The ALJ should also reevaluate Plaintiff’s symptom claims. Finally, the ALJ should reconsider

21 the remaining steps in the sequential analysis, reassess Plaintiff’s RFC and, if necessary, take

22 additional testimony from a vocational expert which includes all of the limitations credited by the

23 ALJ.

24 Accordingly, it is RECOMMENDED:

25 1. Plaintiff’s Motion for Summary Judgment (Doc. No. 15) be GRANTED.

26 2. Defendant’s Cross Motion for Summary Judgment (Doc. No. 19) be DENIED.

27 3. Pursuant to sentence four of 42 U.S.C.§ 405(g), the Court REVERSE the

28 Commissioner’s decision and REMAND this case back to the Commissioner of

1 Social Security for further proceedings consistent with this Order.

2 4. The district court direct the Clerk to enter judgment in favor of the Plaintiff,

3 terminate any pending motions/deadlines, and close this case.

4 NOTICE TO PARTIES

5 These Findings and Recommendations will be submitted to the United States District

6 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days

7 | after being served with a copy of these Findings and Recommendations, a party may file written

8 | objections with the Court. /d.; Local Rule 304(b). The document should be captioned,

9 | “Objections to Magistrate Judge’s Findings and Recommendations.” The assigned District Judge

10 will review these Findings and Recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s

11 | failure to file objections within the specified time may result in the waiver of certain rights on

12 || appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

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"| Dated: __April 19, 2024 Mile. Wh. foareh Zaskth

15 HELENA M. BARCH-KUCHTA

6 UNITED STATES MAGISTRATE JUDGE

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