“Substantial evidence” means more than a mere scintilla but less than a 24 preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to 25 support a conclusion”
How later courts described this case
- “Substantial evidence” means more than a mere scintilla but less than a 24 preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to 25 support a conclusion”
- “An RFC is not a medical determination but an administrative 17 finding or legal decision reserved to the Commissioner based on consideration of all the relevant 18 evidence, including medical evidence, lay witnesses and subjective symptoms.”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 D.W., Case No. 21-cv-08390-SVK
8 Plaintiff,
ORDER ON CROSS-MOTIONS FOR
9 v. SUMMARY JUDGMENT
10 KILOLO KIJAKAZI, Re: Dkt. Nos. 16, 17
11 Defendant.
12 Plaintiff appeals from the final decision of the Defendant Commissioner of Social Security,
13 which denied his application for disability insurance benefits. The Parties have consented to the
14 jurisdiction of a magistrate judge. Dkt. 8, 9. For the reasons discussed below, the Court
15 GRANTS IN PART AND DENIES IN PART Plaintiff’s motion for summary judgment
16 (Dkt. 16) and DENIES the Commissioner’s cross-motion for summary judgment (Dkt. 17).
17 I. BACKGROUND
18 On or about August 26, 2019, Plaintiff filed an application for Title II disability insurance
19 benefits. See Dkt. 13 (Administrative Record (“AR”)) at 258-264. On May 19, 2021, an
20 Administrative Law Judge (“ALJ”) denied Plaintiff’s claim. AR 12-32 (the “ALJ Decision”).
21 The ALJ concluded that Plaintiff has the following severe impairments: degenerative disc disease,
22 obesity, chronic obstructive pulmonary disease, and sleep apnea. AR 18. The ALJ found that
23 Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work with certain
24 limitations. AR 19. The ALJ determined that with this RFC, Plaintiff could not return to his past
25 relevant work as an “administrative clerk” but is capable of performing his past relevant work as a
26 “registration clerk.” AR 25. Accordingly, the ALJ found that Plaintiff was not under a disability,
27 as defined in the Social Security Act, from June 1, 2019 (the alleged onset date) through the date
1 review the ALJ Decision (AR 1-6), Plaintiff timely appealed the ALJ Decision to this Court.
2 Dkt. 1 (Complaint).
3 In accordance with Civil Local Rule 16-5, the parties filed cross-motions for summary
4 judgment. Dkt. 16 (Plaintiff’s motion for summary judgment); Dkt. 17 (Commissioner’s cross-
5 motion for summary judgment). The cross-motions for summary judgment are now ready for
6 decision without oral argument.
7 II. ISSUES FOR REVIEW
8 1. Did the ALJ properly evaluate Plaintiff’s past relevant work?
9 2. Did the ALJ properly evaluate Plaintiff’s residual functional capacity?
10 3. Did the ALJ properly evaluate Plaintiff’s credibility?
11 III. STANDARD OF REVIEW
12 This Court is authorized to review the Commissioner’s decision to deny disability benefits,
13 but “a federal court’s review of Social Security determinations is quite limited.” Brown-Hunter v.
14 Colvin, 806 F.3d 487, 492 (9th Cir. 2015); see also 42 U.S.C. § 405(g). Federal courts “leave it to
15 the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the
16 record.” Brown-Hunter, 806 F.3d at 492 (internal quotation marks and citation omitted).
17 The Commissioner’s decision will be disturbed only if it is not supported by substantial
18 evidence or if it is based on the application of improper legal standards. Id. at 492. “Under the
19 substantial-evidence standard, a court looks to an existing administrative record and asks whether
20 it contains sufficient evidence to support the agency’s factual determinations,” and this threshold
21 is “not high.” Biestek v. Berryhill, -- U.S. --, 139 S. Ct. 1148, 1154 (2019) (internal quotation
22 marks, citation, and alteration omitted); see also Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d
23 996, 1002 (9th Cir. 2015) (“Substantial evidence” means more than a mere scintilla but less than a
24 preponderance; it is “such relevant evidence as a reasonable mind might accept as adequate to
25 support a conclusion”) (internal quotation marks and citations omitted). The Court “must consider
26 the evidence as a whole, weighing both the evidence that supports and the evidence that detracts
27 from the Commissioner’s conclusion.” Rounds, 807 F.3d at 1002 (internal quotation marks and
1 Court must uphold the ALJ’s findings if supported by inferences reasonably drawn from the
2 record. Id.
3 Even if the ALJ commits legal error, the ALJ’s decision will be upheld if the error is
4 harmless. Brown-Hunter, 806 F.3d at 492. But “[a] reviewing court may not make independent
5 findings based on the evidence before the ALJ to conclude that the ALJ’s error was harmless” and
6 is instead “constrained to review the reasons the ALJ asserts.” Id. (internal quotation marks and
7 citation omitted).
8 IV. DISCUSSION
9 A. Issue One: Evaluation of Past Relevant Work
10
1. Legal standard for evaluating past relevant work
11
Plaintiff argues that the ALJ’s finding that he could perform his past relevant work as a
12
“registration clerk” is not supported by substantial evidence. Dkt. 16 at 9-11. At step 4, claimants
13
have the burden of showing that they do not have the RFC to perform the requirements of their
14
past relevant work. 20 C.F.R. § 404.1520(e), (f); Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir.
15
2001). Not all prior employment qualifies as “past relevant work” for purposes of step 4. “Past
16
relevant work” means jobs performed within a 15-year period before the claimant’s disability.
17
Soc. Sec. Ruling (“SSR”) 82-62; see also 20 C.F.R. § 404.1565. The work must have “lasted long
18
enough for [the claimant] to learn to do it,” and it also must have been “substantial gainful
19
activity” (“SGA”). 20 C.F.R. §§ 404.1560(b)(1), 404.1565. SGA is work done for pay or profit
20
that involves significant mental or physical activities. 20 C.F.R. § 404.1572.
21
“Although the burden of proof lies with the claimant at step four, the ALJ still has a duty to
22
make the requisite factual findings to support his conclusion.” Pinto, 249 F.3d at 844. “This is
23
done by looking at the ‘residual functional capacity and the physical and mental demands’ of
24
claimant’s past relevant work.” Id. at 844-845 (quoting 20 C.F.R. §§ 404.1520(e) and
25
416.920(e)).” The claimant must be able to perform the functional demands and job duties of the
26
job, either as actually or generally required. Pinto, 249 F.3d at 845 (citing SSR 82-61). “This
27
requires specific findings as to the claimant’s residual functional capacity, the physical and mental
1 demands of the past relevant work, and the relation of the residual functional capacity to the past
2 work.” Pinto, 249 F.3d at 845 (citing SSR 82-62).
3 The ALJ found that Plaintiff had the following past relevant work, for which the ALJ did
4 not identify the employer:
5
• “Heavy truck driver, 905.63-014 … ”; and
6
7 • “Admitting registration clerk, 205.362-018 …”.
8 The ALJ also stated that “[t]he vocational expert also testified that the claimant’s past work at
9 Injury Control Systems was a composite job composed of:
10
• “Administrative clerk, 219.362-10 …”; and
11
• “Van driver, 913.663-010 …. .”
12
AR 25.
13
14 The ALJ discussed Plaintiff’s work at Injury Control Systems in some detail and
15 concluded that it was not a composite job. Id. The ALJ went on to state that “[d]espite the finding
16 that this was not a composite job, I do not find that the claimant is able to return to his past
17
relevant work as an administrative clerk, as the residual functional capacity above is more
18
restrictive than allowed for in this position.” Id. The ALJ then stated as follows:
19
I find that the claimant is able to perform his past work as a registration clerk. As required
20 by SSR 82-62, this work is considered past relevant work as it was performed within the
past 15 years, was performed at substantial gainful activity, and was performed long
21
enough for the claimant to achieve average performance (Hearing, Exhibit 3D, Exhibit
22 3E). The vocational expert testified that, based on the residual functional capacity above,
the claimant could perform his past relevant work as a registration clerk as generally
23 performed. Accordingly, I find that the claimant is able to perform his past relevant work
as a registration clerk as generally performed.
24
Exhibits 3D and 3E cited by the ALJ in this portion of the decision are a work history
25
report submitted by Plaintiff (AR 289-304) and an earnings history report that shows Plaintiff’s
26
yearly earnings from 2004 to 2020 (AR 268-271). Although the ALJ did not cite a specific
27
portion of the hearing transcript, both Plaintiff and a vocational expert (“VE”) testified concerning
1 Plaintiff’s past relevant work. AR 41-45 (Plaintiff’s testimony); AR 46-47 (VE’s testimony).
2 Most of this testimony concerned Plaintiff’s past work at Injury Control Systems, but as noted
3 above the ALJ found that Plaintiff could not return to his past work there. AR 25. As for other
4 past work, Plaintiff testified that he had worked at Health Diagnostic Systems for six to eight
5 months in 2016. AR 41. Plaintiff described this job as follows:
6
I did desk clerk. I received patients, checked them in, setup their -- it was an MRI scanning
place. So, I would setup their appointments and put them in a room for them to change. There
7
were a little bit of authorizations to do, stuff like that.
8
Id. (sic). Plaintiff also testified that he had worked as a driver for Date Gourmet and at a desk job
9
for Health Practice Management “doing authorizations.” AR 44-45.
10
As with Plaintiff’s hearing testimony, most of the VE’s testimony focused on Plaintiff’s
11
past work at Injury Control Systems, which the VE testified as “administrative clerk, 219.362-
12
010” and “van driver … 913.663-10. AR 46. In addition, the VE testified that “you have the
13
registration clerk for a couple different thing [sic] and that would be known as an admitting or
14
registration clerk, DOT 205.362-108.” Id. According to the VE, “that’s semi-skilled with a 4, it’s
15
sedentary per the DOT” and “[h]e did it at a couple different places and basically at one he did it
16
light to medium and one at sedentary.” Id. In response to the ALJ’s hypothetical, the VE testified
17
that a person able to perform work at a sedentary level with the restrictions ultimately incorporated
18
into the ALJ’s RFC finding “would be able to do the job as the registration clerk.” AR 67-68.
19
The ALJ fails to provide the “specific findings” required at step 4 to support his conclusion
20
that “claimant is able to perform his past work as a registration clerk” (AR 25), for several
21
reasons. A fundamental problem with the past relevant work analysis is that the ALJ does not
22
identify which of Plaintiff’s jobs he considers the “registration clerk” position that he believes
23
Plaintiff can still perform. The Commissioner attempts to supply the information missing from the
24
ALJ’s analysis by summarizing evidence from which one could conclude that the ALJ was
25
referring to Plaintiff’s past position with Health Diagnostic of California. Dkt. 17 at 4-6.
26
However, “[l]ong-standing principles of administrative law require us to review the ALJ’s
27
decision based on the reasoning and factual findings offered by the ALJ—not post hoc
1 rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray v.
2 Commissioner of Social Security, 665 F.3d 1219, 1225 (9th Cir. 2009). The Commissioner cites
3 cases for the proposition that the Court can draw the necessary inferences even if an ALJ’s
4 decision is articulated with “less than ideal clarity.” Dkt. 17 at 6 and cases cited therein. Here,
5 however, the ALJ decision did not even mention that Plaintiff worked at Health Diagnostic of
6 California, and the VE testified that Plaintiff performed the registration clerk job “at a couple
7 different places.” AR 46. The ALJ refers to the relevant position variously as “admitting
8 registration clerk” and “registration clerk” (AR 25), and the Commissioner notes in the cross-
9 motion for summary judgment that “[t]he DOT actually labels this occupation as a ‘hospital-
10 admitting clerk.’” Dkt. 17 at 2 n.1 (citing DOT 205.372-018). These ambiguities undermine the
11 Court’s ability to review the ALJ’s conclusions on the past relevant work issue.
12 In addition, the ALJ did not provide the necessary “specific findings” regarding the
13 physical and mental demands of the “admitting registration clerk”/“registration clerk” position or
14 the relation of Plaintiff’s RFC to that position. By contrast to the ALJ’s discussion of Plaintiff’s
15 work at Injury Control Systems and the reasons why the ALJ concluded that he was “not able to
16 return to his past relevant work [there] as an administrative clerk” (AR 25), for the “admitting
17 registration clerk” position the ALJ provides only the DOT code (“205.362-018, sedentary, also
18 performed as light and medium, SVP 4/semi-skilled” (AR 25)) and states, without a cite to the
19 hearing record, that “[t]he vocational expert testified that, based on the residual functional capacity
20 above, the claimant could perform his past relevant work was a registration clerk as generally
21 performed.” AR 25. The Ninth Circuit has noted that it is difficult for a court to review an ALJ’s
22 decision where “the ALJ made very few findings and relied largely on the conclusions of the
23 vocational expert.” Pinto, 249 F.3d at 847. This difficulty is compounded by the ambiguities
24 regarding which position the ALJ is referring to, as discussed above, as well as the ALJ’s
25 apparent, but unexplained, distinction between the job demands of Plaintiff’s past relevant work as
26 an “admitting registration clerk”/“registration clerk” and as an “administrative clerk.” AR 25.
27 Here, the ALJ erred by failing to adequately identify the past relevant work she concluded
1 Accordingly, the ALJ’s finding at step 4 that Plaintiff could perform his past relevant work as an
2 “admitting registration clerk”/“registration clerk” was not supported by substantial evidence. This
3 error was not harmless because the ALJ concluded her disability analysis with a determination that
4 Plaintiff could perform past relevant work did not proceed to a step 5 determination of whether
5 Plaintiff could do other jobs. The Court therefore remands the ALJ to evaluate Plaintiff’s past
6 relevant work.
7 B. Issue Two: Evaluation of Residual Functional Capacity
8 “At steps four and five, the ALJ determines a claimant’s residual functional capacity,”
9 which is “what one can still do despite one’s limitations.” Garrison v. Colvin, 759 F.3d 995, 1011
10 (9th Cir. 2014); 20 C.F.R. § 404.1520(e). The ALJ determines RFC “based on all the relevant
11 medical and other evidence” in the record and “must consider a claimant’s physical and mental
12 abilities” and “the total limiting effects caused by medically determinable impairments and the
13 claimant’s subjective experiences of pain.” Garrison, 759 F.3d at 1011. “It is clear that it is the
14 responsibility of the ALJ, not the claimant’s physician, to determine residual functional capacity.”
15 Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001); see also Perez v. Astrue, 831 F. Supp. 2d
16 1168, 1176 (C.D. Cal. 2011) (“An RFC is not a medical determination but an administrative
17 finding or legal decision reserved to the Commissioner based on consideration of all the relevant
18 evidence, including medical evidence, lay witnesses and subjective symptoms.”).
19 1. Obesity
20 Plaintiff argues that the ALJ erred in not properly considering the effects of obesity on his
21 RFC. Dkt. 16 at 12-13. Obesity may factor into the disability analysis in several ways. First,
22 Social Security Rules provide that obesity, like other medical impairments, can be a “severe”
23 impairment “when alone or in combination with another medically determinable physical or
24 mental impairment(s), it significantly limits an individual’s physical or mental ability to do basic
25 work activities.” Burch v. Burnhart, 400 F.3d 676, 682 (9th Cir. 2005) (quoting SSR 02-01p
26 (2002)); see also SSR 19-2p. In determining whether a claimant’s obesity is a severe impairment
27 at step two of the disability analysis, the ALJ must “do an individualized assessment of the impact
1 listing for obesity, obesity may factor into whether an individual’s impairment meets or equals the
2 requirements of a listed impairment at step three. See SSR 19-2p. Third, in evaluating obesity to
3 determine a claimant’s RFC at step four, the ALJ “must consider an individual’s maximum
4 remaining ability to do sustained work activities in an ordinary work setting on a regular and
5 continuing basis” and, as with other impairments, “the ALJ should explain how he determined
6 whether obesity caused any physical or mental impairments.” Burch, 400 F.3d at 683 (quoting
7 SSR 02-01p (2002)); see also SSR 19-2p (“As with any other impairment, we will explain how we
8 reached our conclusion on whether obesity causes any limitations”).
9 The Court concludes that the ALJ did not err in considering the effects of Plaintiff’s
10 obesity. First, any error by the ALJ in the step two assessment of the impact of Plaintiff’s obesity
11 on her functioning for the purpose of determining whether her obesity is a severe impairment was
12 harmless because the ALJ found that Plaintiff’s obesity was a severe impairment. AR 18.
13 Second, in determining whether Plaintiff’s impairments met or equaled a listing, the ALJ
14 concluded that “the evidence does not support a finding that the claimant’s weight compounded
15 their other physical impairments such that they would medically equal a listing.” AR 19. The
16 Court notes that Plaintiff does not argue that he should have been found at step three to meet or
17 equal a listing due to her obesity. See Dkt. 16 at 12-13. Therefore, Plaintiff has not shown an
18 error in how the ALJ evaluated obesity in this regard.
19 Third, and finally, Plaintiff is incorrect when he argues that “the ALJ addresses obesity
20 limited to whether it meets a listing in combination with other physical impairments” whereas
21 “[t]he Commissioner’s regulations require the ALJ to address whether morbid obesity is
22 functionally limiting.” Id. at 13. In evaluating Plaintiff’s RFC, the ALJ stated that “the claimant’s
23 condition is compounded by his obesity” and that she had “considered the impact of the claimant’s
24 obesity in exacerbating the problems and functional limitations caused by his other impairments in
25 accordance with SSR 19-2p.” AR 22-23 (citing medical record evidence). This statement,
26 although conclusory, is reinforced by the fact that the ALJ discusses Plaintiff’s “elevated body
27 mass index” throughout the discussion of how the ALJ arrived at a conclusion regarding
1 on [Plaintiff’s] diabetes, knees, legs and asthma.” Dkt. 16 at 13. According to Plaintiff:
2
Matthew Suehiro states that Wilson’s impairments are “probably due to COPD,
3 morbid obesity and physical deconditioning” (AR 3103). Wilson was unable to go
through testing because of his obesity. As such, there is evidence in the record
4 Wilson’s BMI of over 50 is limiting.
5 Id. In addition, Plaintiff testified at the hearing that his morbid obesity affected his ability to twist
6 left to right and that he “think[s] the obesity is really pulling on a lot of my -- putting a lot of pressure
7 on my injuries. I think it’s not helping one bit. It's probably one of the biggest factors going against me
8 right now.” AR 52-53, AR 61-62. However, the ALJ explained that the RFC took into account
9 Plaintiff’s elevated body mass index and other abnormal findings “by limiting the claimant to
10 work at the sedentary exertional level with additional postural limitations.” AR 23; see also
11 AR 24 (“elevated body mass index” and other conditions “are also consistent with a limitation to
12 word at the sedentary exertional level with postural limitations”); AR 23 (stating that RFC
13 accommodates Plaintiff’s “elevated body mass” and other limitations). Although the ALJ does
14 not specifically address a note in the medical record by Dr. Suehio stating “[p]robably due to
15 COPD, morbid obesity and physical deconditioning,” Plaintiff has not demonstrated that this
16 information would support any greater or different restrictions than those already incorporated in
17 the RFC.
18 Plaintiff has not identified, and there is no evidence in the record of, “any functional
19 limitations as a result of [his] obesity that the ALJ failed to consider.” Burch, 400 F.3d at 684.
20 Based on this record, the ALJ adequately considered Plaintiff’s obesity in determining Plaintiff’s
21 RFC. Accordingly, although the Court remands on other issues, the Court finds no error with
22 respect to the ALJ’s evaluation of Plaintiff’s obesity.
23 2. Mental Limitations
24 The Social Security Administration has supplemented the five-step sequential disability
25 evaluation process with special regulations governing the evaluation of mental impairments at
26 steps two and three of the five-step process. See generally 20 C.F.R. § 404.1520a. At step two of
27 the sequential analysis, in which the ALJ considers whether a claimant suffers from a “severe”
1 application of a special psychiatric review technique (“PRT”) in his or her decision. Keyser v.
2 Comm'r, 648 F.3d 721, 725 (9th Cir. 2011). “Specifically, the reviewer must determine whether
3 an applicant has a medically determinable mental impairment [], rate the degree of functional
4 limitation for four functional areas [], determine the severity of the mental impairment (in part
5 based on the degree of functional limitation) [], and then, if the impairment is severe, proceed to
6 step three of the disability analysis to determine if the impairment meets or equals a specific listed
7 mental disorder [].” Id. (citing 20 C.F.R. § 404.1520a). The ALJ's decision “must incorporate the
8 pertinent findings and conclusions based on the technique” and “must include a specific finding as
9 to the degree of limitation in each of the functional areas.” Id. (citation omitted). “Where there is
10 a ‘colorable claim of mental impairment,’ the ALJ’s failure to follow the section 1520a ‘special
11 technique’ requires reversal.” Smith v. Astrue, No. C 09-0377 MHP, 2010 WL 5776060, at *7
12 (N.D. Cal. Sep. 16, 2010) (quoting Selassie v. Barnkart, 203 Fed. Appx. 174, 176 (9th Cir. 2006));
13 see also Keyser, 648 F.3d at 726; Hayes v. Berryhill, 721 Fed. Appx. 648, 651 (9th Cir. 2018)
14 (“The ALJ was not required to complete a psychiatric review technique form to determine the
15 severity of any mental impairment because [claimant] did not present a ‘colorable claim of mental
16 impairment’”) (citing Keyser); Alekseyevets v. Colvin, 524 Fed. Appx. 341, 343 (9th Cir. 2013)
17 (“The ALJ's determination that [claimant] failed to present a colorable claim of mental impairment
18 was supported by substantial evidence in the record, and thus utilization of the PRT was not
19 required.”).
20 Plaintiff is correct that the ALJ in this case did not discuss or apply the special PRT in her
21 decision. See Dkt. 16 at 14. As discussed above, whether this omission requires reversal depends
22 on whether Plaintiff made a “colorable claim” of mental impairment. “A colorable claim is one
23 which is not ‘wholly insubstantial, immaterial, or frivolous.’” Smith, 2010 WL 5776060, at *8
24 (citations omitted).
25 Plaintiff does not identify any actual diagnosis of mental impairment in the medical record.
26 However, Plaintiff notes several references to depression and anxiety disorders in the medical
27
1 record. Dkt. 16 at 14 (citing AR 2488, 1 AR 2494, AR 3152); see also AR 1161. Plaintiff also
2 testified at the hearing that “I’m getting depressed and sad.” AR 49. In addition, a disability
3 report completed on Plaintiff’s behalf in March 2020 stated that he was undergoing or
4 contemplating medical treatment for “Physical and Mental (including emotional or learning
5 problems)” conditions. AR 323. A state agency psychological consultant, Dr. Lucila, reviewed
6 Plaintiff’s medical records on April 29, 2020 and May 6, 2020, although she concluded that there
7 was no medically determinable impairment in this area. AR 122-123.
8 The Commissioner cites evidence that might support a conclusion that the record evidence
9 did not amount to a “colorable claim” of mental impairment. Dkt. 17 at 9-10. It is true that a
10 finding of no medical impairment may be appropriate where “there was no diagnosis, no medical
11 opinions, no mental status examination findings, and no RFC limitations for mental impairments
12 assessed by any physician.” Navarro v. Berryhill, No. CV 16-05645-JEM, 2018 WL 1155968, at
13 *4 (C.D. Cal. Mar. 2, 2018). The Court expresses no opinion on whether such a conclusion might
14 be correct in this case. The problem here is that despite the evidence discussed above, the ALJ did
15 not even acknowledge Plaintiff’s claim of a mental impairment or explain if or why the ALJ
16 concluded that she did not need to apply the PRT. As such, the Court is unable to determine
17 whether the ALJ’s decision on this issue is supported by substantial evidence.
18 For the reasons discussed, the Court remands for the ALJ to consider the effect of
19 Plaintiff’s claimed mental impairments and, for the reasons discussed below, the impact of those
20 impairments on the credibility of Plaintiff’s testimony and the RFC at subsequent sequential steps,
21 if necessary.
22 C. Issue Three: Plaintiff’s Credibility
23 “Where, as here, an ALJ concludes that a claimant is not malingering, and that she has
24 provided objective medical evidence of an underlying impairment which might reasonably
25 produce the pain or other symptoms alleged, the ALJ may ‘reject the claimant’s testimony about
26 the severity of her symptoms only by offering specific, clear and convincing reasons for doing
27
1 so.’” Brown-Hunter, 806 F.3d at 492-93 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
2 Cir. 2007)). “In weighing a claimant’s credibility, the ALJ may consider his reputation for
3 truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his
4 daily activities, his work record, and testimony from physicians and third parties concerning the
5 nature, severity, and effect of the symptoms of which he complains.” Light v. Soc. Sec. Admin.,
6 119 F.3d 789, 792 (9th Cir. 1997) (citations omitted).
7 The ALJ found that “[a]fter careful consideration of the evidence, I find that the claimant’s
8 medically determinable impairments could reasonably be expected to cause the alleged symptoms;
9 however, the claimant’s statements concerning the intensity, persistence and limiting effects of
10 these symptoms are not entirely consistent with the medical evidence and other evidence in the
11 record for the reasons explained in this decision.” AR 20. In reaching this conclusion, the ALJ
12 acknowledged Plaintiff’s statements that his back problems made it difficult for him to walk,
13 stand, go up and down stairs, bend, or twist; that he can sit and stand for approximately 30
14 minutes, cannot lift more than 10 pounds, and uses a cane to ambulate; that he has weakness in his
15 legs and cannot squat; and that he does not sleep well and has problems with his breathing.
16 AR 20. The ALJ went on to discuss the medical record on these issues. AR 20-24. The ALJ
17 ultimately decided to include certain postural, exertional, and exertional limitations in the RFC to
18 account for problems substantiated by the medical record. Id.; see also AR 19 (finding Plaintiff
19 had RFC to perform sedentary work except occasional climb ramps or stairs and never climb
20 ladders, ropes, or scaffolds; occasional balance, stoop, crouch, kneel, and crawl; occasional
21 exposure to extreme cold; and occasional exposure to irritants such as fumes, odors, dusts, and
22 gases).
23 Plaintiff does not challenge this analysis except for arguing that the ALJ did not address
24 his pain. Dkt. 16 at 15-16. According to Plaintiff:
25
[Plaintiff’s] primary issue is his inability to control his pain. He is unable to take
26 opioids. The medical record reflects chronic pain. Dr. Kacy Church diagnoses his
pain as “chronic pain “(AR 3103). Wilson has back, abdominal stomach, shoulder,
27 and knee pain. His pain management team report that after his first back operation
in 2006 he had less difficulty until 2014. His pain continued to increase until he
had the second back fusions 2018. The surgery helped but his sense of weakness in
1
his legs became worse and he pain returned (AR 3153).
2 AR 15.
3 Plaintiff has not shown error in this regard. The ALJ specifically acknowledged and discussed
4 Plaintiff’s claims of pain and leg weakness in terms of the medical record. See AR 20-24. The RFC
5 as determined by the ALJ limited Plaintiff to sedentary work, involving little to no climbing, stooping,
6 crouching, kneeling, and crawling. (AR 19).
7 However, the failure of the ALJ to properly evaluate Plaintiff’s claimed mental
8 impairments, as discussed above, may have impacted the ALJ’s subsequent credibility
9 determination—in particular, concerning the intensity, persistence, and/or limiting effects of
10 Plaintiff’s combined impairments. See Dixon v. Saul, 411 F. Supp. 3d 837, 855 (N.D. Cal. 2019)
11 (holding that reevaluation of medical opinions supporting a mental impairment “could affect the
12 ALJ’s conclusions regarding Plaintiff’s credibility”). Accordingly, on remand, the ALJ is also
13 required to reconsider Plaintiff’s credibility and, if necessary, the related RFC assessment.
14 Plaintiff argues that if the Court finds error in the ALJ’s evaluation of Plaintiff’s
15 credibility, it should apply the “credit as true” doctrine and order an award of benefits rather than
16 remanding for further findings on the issue. Dkt. 16 at 16. The Commissioner states that “[a]s a
17 matter of record, the Commissioner disagrees with Circuit precedent establishing the ‘credit as
18 true’ rule.” Dkt. 17 at 13 n.10. The Court need not explore this disagreement further because as
19 Plaintiff acknowledges, the “credit as true” rule applies only if “it is clear from the administrative
20 record that the ALJ would be required to award benefits if the claimants … (symptom) testimony was
21 credited.” Dkt. 16 at 16 (sic); see also McDade v. Berryhill, No. 17-cv-00763-JCS, 2018 WL
22 4635646, at *22 (N.D. Cal. Sep. 27, 2018). Plaintiff has not identified any testimony that would
23 require an award of benefits if credited and, in any event, subjective symptoms are, in and of
24 themselves, insufficient to establish disability. 42 U.S.C. § 423(d)(5)(A) (“An individual’s statement
25 as to pain or other symptoms shall not alone be conclusive evidence of disability” and “[a]n individual
26 shall not be considered to be under a disability unless he furnishes such medical and other evidence of
27 the existence thereof as the Commissioner of Social Security may require.”); see also 20 C.F.R.
V. CONCLUSION AND DISPOSITION
The Social Security Act permits courts to affirm, modify, or reverse the Commissioner’s
decision “with or without remanding the case for a rehearing.” 42 U.S.C. § 405(g); see also
° Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014). “[W]here the record has been developed
fully and further administrative proceedings would serve no useful purpose, the district court
° should remand for an immediate award of benefits.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th
° Cir. 2004). However, “[r]emand for further proceedings is appropriate where there are
’ outstanding issues that must be resolved before a disability determination can be made, and it is
° not clear from the record that the ALJ would be required to find the claimant disabled if all the
° evidence were properly evaluated.” Luther v. Berryhill, 891 F.3d 872, 877-78 (9th Cir. 2018)
8 (citations omitted).
" Because it is not clear from the record that the ALJ would be required to find Plaintiff
disabled if all the evidence were properly evaluated, remand is appropriate. On remand, the ALJ
4 must properly evaluate the issues discussed above based on applicable law and the guidance
S provided in this opinion. It is not the Court’s intent to limit the scope of the remand.
For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART
5 Plaintiff's motion for summary judgment, DENIES the Commissioner’s cross-motion for
= " summary judgment, and REMANDS this case for further proceedings.
18 SO ORDERED.
Dated: December 21, 2022
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21 Si (
22 SUSAN VAN KEULEN
73 United States Magistrate Judge
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