# Palafox v. Saul

> District Court, N.D. California · August 18, 2023

URL: https://www.frixlaw.com/law-library/cases/10076273

## Case

- **Court:** District Court, N.D. California
- **Decided:** August 18, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10076273

## How later opinions describe it (automated extraction)

- affirming ALJ’s finding that plaintiff’s “claimed inability to tolerate even 9 minimal human interaction was inconsistent with her daily activities throughout the disability 10 period,” including walking grandchildren to school, attending church, shopping and taking walks

## Opinion text

1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 JOSEPHINE PALAFOX, Case No. 20-cv-07944-HSG

8 Plaintiff,
ORDER GRANTING PLAINTIFF’S
9 v. MOTION FOR SUMMARY
JUDGMENT AND DENYING
10 KILOLO KIJAKAZI, Acting DEFENDANT’S CROSS-MOTION FOR
Commissioner of Social Security, SUMMARY JUDGMENT
11
Defendant. Re: Dkt. Nos. 17, 20
12
13
Defendant Andrew Saul,1 the former Commissioner of the Social Security Administration,
14 acting in his official capacity, denied Plaintiff Josephine Palafox’s application for Supplemental
15 Security Income (“SSI”). Dkt. No. 1. Plaintiff seeks judicial review of that decision. For the
16 reasons set forth below, the Court GRANTS Plaintiff’s motion for summary judgment, see Dkt.
17 No. 17 (“Pl. Mot.”), and DENIES Defendant’s cross-motion for summary judgment, see Dkt. No.
18 20 (“Def. Mot.”).
19 I. BACKGROUND
20 In a prior application for disability benefits, the claimant was found able to perform
21
unskilled sedentary labor in a hearing decision issued on March 25, 2015. AR 115-41.2 The
22 Appeals Council upheld the decision on July 29, 2016, and the U.S. District Court for the District
23 of Northern California affirmed on March 23, 2018. Id. at 115-41, 207-41. On September 7,
24 2018, Plaintiff filed for Title II and Title XVI benefits under the Social Security Act, alleging
25

26
1 The acting Commissioner of the Social Security Administration is Dr. Kilolo Kijakazi. She is
substituted for her predecessor, Andrew Saul, as Defendant in this action under Fed. R. Civ. P.
27
25(d).
1
disability since March 26, 2015, one day after the unfavorable decision. AR 324-37; AR 115-141.
2
That claim ultimately was denied on November 28, 2018, and denied on reconsideration on April
3
4, 2019. Id. at 115-41, 243, 248, 255, 261, 324-37. On February 26, 2020, a different
4
administrative law judge, Matilda Surh (“ALJ”), held a hearing. AR 81-114 (hearing transcript).
5
On March 23, 2020, the ALJ issued a partially favorable decision for Plaintiff, finding that she
6
was not disabled prior to April 27, 2016, but became disabled on that date and continued to be
7
disabled through the date of the decision. Id. at 12-30.3
8
The ALJ followed the five-step sequential evaluation process mandated for disability
9
claims under 20 C.F.R. § 404.1520(a) and ultimately found that Plaintiff was not disabled through
10
June 30, 2015, meaning she was not eligible for Title II benefits as that was the last date she was
11
insured. AR 12-30. The ALJ incorporated the findings and discussion of the March 2015
12
decision. AR 12-30, 115-41. The Appeals Council denied Plaintiff’s request for review on
13
September 18, 2020. AR 1.
14
Step One requires the ALJ to determine whether the claimant is working in “substantial
15
gainful activity,” defined as work done for pay or profit and involving significant mental or
16
physical activities. See 20 C.F.R. §§ 404.1520(b), 404.1572. At the outset, the ALJ stated she
17
considered the entire record. AR 19. At step one, the ALJ determined that Plaintiff had not
18
engaged in “substantial gainful activity” since the onset of her alleged disability. Id.
19
Step Two directs the ALJ to determine whether the claimant has a severe impairment or
20
combination of impairments that significantly limit her ability to work. See 20 C.F.R. §
21
404.1520(c). At step two, the ALJ found the following alleged impairments to be severe:
22
degenerative disc disease of the cervical spine, status post cervical decompression and fusion;
23
right lateral epicondylitis; right knee osteoarthritis; and right wrist tendonitis. AR 19. The ALJ
24
also determined that Plaintiff’s claims of depression and anxiety were non-severe, finding that
25
26

27 3 On April 27, 2016, Plaintiff’s age category changed when she reached age 50. AR 21.
1
Plaintiff’s “medical records do not document any significant limitations and/or treatments from a
2
qualified medical source for the necessary durational requirement of 12-consective months.” Id.
3
The ALJ found persuasive the medical evaluation of State Agency reviewing psychiatrist
4
L. Colsky, M.D., finding that Plaintiff had “mild limitations based on depression and anxiety.”
5
AR 151. The ALJ found the assessment of the State Agency reviewing psychiatrist H. Amado,
6
M.D., and consultative examiner Jacklyn Chandler, Psy.D., that Plaintiff suffered from “moderate”
7
mental limitations to be unpersuasive because “the claimant has no history of any consistent
8
mental health treatment and no evidence of any need for in-patient psychiatric care.” AR 19. The
9
ALJ did not address a letter written by Carol Helander, a marriage and family therapist. AR 1160.
10
The ALJ also did not address an anxiety medication prescribed by Holly Reese, a physician
11
assistant. See generally AR 549 – 691.
12
At Step Three, the ALJ determines whether the claimant’s impairment, or combination of
13
impairments, medically “meets or equals” an impairment listed in 20 C.F.R., pt. 404, subpt. P,
14
Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. “That bureaucratic mouthful
15
means the ALJ must see if the claimant’s impairment matches the criteria for disabling conditions
16
listed in the regulations.” Petrini v. Colvin, No. 14-CV-01583-JD, 2015 WL 5071931, at *1 (N.D.
17
Cal. Aug. 27, 2015), aff’d sub nom. Petrini v. Berryhill, 705 F. App’x 511 (9th Cir. 2017)
18
(quotation omitted). Here, while acknowledging Plaintiff’s testimony that she “suffers from pain
19
on an everyday basis,” the ALJ determined that Plaintiff did not have an impairment or
20
combination of impairments that meets or equals the required criteria. AR 20-21. The ALJ based
21
her decision on Plaintiff’s testimony and on the opinions of State Agency reviewing physicians,
22
ultimately finding that “though the claimant has some medical evidence to support her allegations,
23
the evidence is not sufficient for a finding of meeting or equaling a listing, per the code.” Id. at
24
21.
25
At Step Four, if the claimant does not have a listed impairment, the ALJ assesses the
26
claimant’s residual functional capacity (“RFC”) and ability to perform past relevant work. 20
27
1
C.F.R. § 404.1520(a)(4)(iv), (e), (f); see also id. § 404.1545. In considering the claimant’s
2
symptoms, the ALJ must first consider whether there is an underlying medically determinable
3
physical or mental impairment that could reasonably be expected to produce the claimant’s pain or
4
other symptoms. See id. § 404.1529; Social Security Ruling 16-3p. The ALJ must consider all
5
impairments, even those that are not severe. 20 C.F.R. § 404.1545(a)(2). Once the underlying
6
impairment has been shown, the ALJ must then evaluate the intensity, persistence, and limiting
7
effects of the claimant’s symptoms. See id. § 404.1529. At step four, the ALJ found that Plaintiff
8
“has the residual functional capacity to perform sedentary work.” AR 20. The ALJ found
9
Plaintiff’s subjective complaints inconsistent with evidence in the record, noting that she “is able
10
to complete all her own activities of daily living,” including “grocery shopping unattended[,]4 . . .
11
driv[ing] a car and [going] out alone.” Id. The ALJ found “some of the physical and mental
12
abilities and social interactions required in order to perform [the reported daily] activities . . . are
13
the same as those necessary for obtaining and maintaining employment.” Id. at 21.
14
The ALJ reviewed Plaintiff’s hearing testimony, Function Report Form, Asthma
15
Questionnaire, and statements she made to Dr. Chandler. Id. at 20. The ALJ found “somewhat
16
persuasive,” prior to the established onset date, the medical opinions of two State Agency
17
reviewing physicians, who opined that Plaintiff had a “range of medium work.” Id. at 22.5 The
18
ALJ concluded Plaintiff’s testimony, the evidence of record, and the opinion evidence did not
19
support a finding of disability prior to the established onset date of April 27, 2016. AR 22.
20
Lastly, at Step Five the ALJ determines whether the claimant can adjust to other work
21
based on the claimant’s age, education, work experience, and RFC. 20 C.F.R. §
22

23
4 As Defendant acknowledges, the ALJ’s conclusion that Plaintiff reported being able to shop
24 unattended was inaccurate. Def. Mot. at 3 and n.3 (recognizing that ALJ’s opinion was
inconsistent with AR 907).
25 5 Dr. Colsky assessed Plaintiff’s physical RFC, which included review of her capacity for
lifting/carrying, standing, walking sitting, pushing, and pulling, and found her to have a “Medium”
26 sustained work capability. AR 156. Her personalized disability explanation (PDE) stated that
Plaintiff’s “condition is not severe enough to keep you from working.” Id. Dr. Amado also found
27 Plaintiff’s physical RFC to support a “Medium” sustained work capability, and her PDE
articulated that Plaintiff’s “condition is not severe enough to keep you from working.” AR 186.
1
404.1520(a)(4)(v). At step five, the ALJ concluded “[b]ased on the testimony of the vocational
2
expert” and “considering the claimant’s age, education, work experience, and residual functional
3
capacity,” that Plaintiff is capable of successfully finding work that exists in “significant numbers
4
in the national economy.” AR 24.
5
II. LEGAL STANDARD
6
The Court has jurisdiction to review final decisions of the Commissioner. See 42 U.S.C. §
7
405(g) (“The [district] court shall have power to enter, upon the pleadings and transcript of the
8
record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social
9
Security, with or without remanding the cause for a rehearing.”). The Court may disturb the
10
Commissioner’s decision to deny benefits only if the decision is not supported by substantial
11
evidence or is based on legal error. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). The
12
threshold for “substantial evidence” is not high: “It means—and means only—such relevant
13
evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v.
14
Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation omitted). “The evidence must be more than a
15
mere scintilla, but may be less than a preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110–11
16
(9th Cir. 2012) (quotation omitted). “Where the evidence is susceptible to more than one rational
17
interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”
18
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
19
The Court must consider the administrative record as a whole, weighing both the evidence
20
that supports and the evidence that detracts from the ALJ’s conclusion. McAllister v. Sullivan,
21
888 F.2d 599, 602 (9th Cir. 1989). The ALJ is responsible for making determinations of
22
credibility and for resolving evidentiary ambiguities, including conflicting medical testimony.
23
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Additionally, the Court “may not
24
reverse an ALJ’s decision on account of an error that is harmless. The burden of showing that an
25
error is harmful normally falls upon the party attacking the agency’s determination.” Molina, 674
26
F.3d at 1111 (quotation omitted).
27
1 III. DISCUSSION
2 Plaintiff alleges that she suffers from pain in her hands, arms, and legs, stemming from
3 carpal tunnel syndrome, fibromyalgia, muscoskeletal pain, and degenerative disc disease, that has
4 made it impossible for her to work. See generally Pl. Mot. at 1-13. Plaintiff received a series of
5 treatments for her pain, including chiropractic care, injections, and shoulder and neck surgery. Id.
6 Plaintiff also alleges that she suffers from post-traumatic stress disorder (PTSD), depression, and
7 anxiety stemming from childhood sexual abuse that limit her ability to conduct sedentary work.
8 See id. at 1-3, 5, 11.6
9 Plaintiff argues that the ALJ erred in denying her claim for disability benefits. Pl. Mot. at
10 18. First, Plaintiff contends that the ALJ failed to provide clear and convincing reasons to
11 discredit her statements about her symptoms. Pl. Mot. at 1. Second, Plaintiff argues the ALJ
12 erred in rejecting the medical opinions of examining psychologists based on evidence in the
13 medical record. Pl. Mot. at 21-23; Dkt. No. 23 (“Pl. Reply”) at 7-13. Defendant responds that the
14 ALJ’s determination was supported by substantial evidence and was not otherwise erroneous.
15 Because the Court finds that the ALJ did not provide specific, clear and convincing reasons for
16 discounting Plaintiff’s subjective complaints, the Court grants Plaintiff’s motion for summary
17 judgment, and remands for the ALJ to undertake the analysis required by Ninth Circuit authority.
18 A. Plaintiff’s Subjective Complaints
19 Where, as here, an ALJ does not find that a claimant is malingering and determines the
20 claimant “has provided objective medical evidence of an underlying impairment which might
21 reasonably produce the pain or other symptoms she alleges, the ALJ may reject the claimant's
22 testimony about the severity of those symptoms only by providing specific, clear, and convincing
23 reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir. 2015). To satisfy
24 the “clear and convincing reasons” requirement, “[g]eneral findings are insufficient; rather, the
25 ALJ must identify what testimony is not credible and what evidence undermines the claimant's
26

27 6 The background for Plaintiff’s initial medical assessment and appeal is laid out in Palafox v.
Berryhill, No. 16-CV-05523-DMR, 2018 WL 1989519 (N.D. Cal. Mar. 23, 2018).
1
complaints.” Id. at 493 (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998)).
2
The Ninth Circuit has held that an ALJ “may discredit a claimant’s testimony when the
3
claimant reports participation in everyday activities indicating capacities that are transferable to a
4
work setting.” Molina, 674 F.3d at 1113; see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.
5
2005) (“As [the Ninth Circuit] previously has explained, if a claimant engages in numerous daily
6
activities involving skills that could be transferred to the workplace, the ALJ may discredit the
7
claimant’s allegations upon making specific findings relating to those activities.”). Additionally,
8
“[a]lthough lack of medical evidence cannot form the sole basis for discounting pain testimony, it
9
is a factor that the ALJ can consider in his credibility analysis.” Burch, 400 F.3d at 681.
10
Plaintiff argues that the ALJ erred in rejecting Plaintiff’s subjective testimony about her
11
symptoms as inconsistent with her activities of daily life, and in relying on the fact that no
12
qualified medical professional found that she suffered from the alleged limitations prior to April
13
27, 2016. Pl. Mot. at 18-21; see also Pl. Reply at 2. Defendant argues that the ALJ’s credibility
14
determination was sufficiently specific in rejecting Plaintiff’s testimony. Def Mot. at 3-5 (citing
15
Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). The Court agrees that the
16
ALJ did not articulate a sufficient basis for rejecting Plaintiff’s testimony regarding her symptoms.
17
1. ALJ’s Identification of Where Plaintiff Made the Evaluated Statements
18 About Her Symptoms
19 In evaluating the intensity, persistence and limiting effects of Plaintiff’s symptoms, the
20 ALJ “reviewed the claimant’s testimony at the hearing, as well as her statements of record
21 contained in a “Function Report—Adult” form dated November 14, 2018 (Exhibit B5E), an
22 “Asthma Questionnaire” form dated November 14, 2018 (Exhibit B6E), [and] statements made to
23 the psychological consultative examiner (Exhibit B6F)[.]” AR 20. The ALJ found “such
24 testimony and statements consistent only to the extent they support the residual functional capacity
25 described above.” Id. at 20-21. The ALJ summarized Plaintiff’s testimony about her symptoms
26 as follows:
The claimant testified that she stopped work due to pain in her hands
27 and arms. She was diagnosed with carpal tunnel. In addition, her
1 neck, right shoulder and right elbow are painful and she has decreased
range of motion. She received chiropractor care for years. However,
2 she eventually had shoulder surgery and neck surgery. She still suffers
from pain on an everyday basis.
3
Id.
4
In the November 14, 2018 “Function Report—Adult” form, Plaintiff reported the
5
following regarding her symptoms: she can dress and groom herself without reminders, prepare
6
meals with help from her son, execute some household chores, drive minimal distances, go out
7
alone, go grocery shopping, manage her own money, watch television, can follow written and
8
spoken instructions, and is able to get along with authority figures. AR 380-93 (Exhibit B5E).
9
Throughout this document, Plaintiff reported significant pain in conducting her daily activities:
10
• In response to question “How do your illnesses, injuries or conditions limit your
11
ability to work?,” listing among other things “Neck—movement left to right up
12
and down and hurts pulling tugging,” and “Upper extremities—fermalagia [sic]—
13
nerve pain, upper back, hand, finger.” Id. at 385.
14
• In response to prompt “Describe what you do from the time you wake up until
15
going to bed,” explaining that “Starting in morning I am in a lot of pain in upper
16
extremities” and that Plaintiff “tr[ies] to do stretches but I have pain doing it . . . .”
17
Id. at 386.
18
• In response to question “Do the illnesses, injuries or conditions affect your
19
sleep?,” checking “yes” box and responding “Pain—neck, arms, wrist, nerve pain
20
in feet.” Id.
21
• In discussion of meal preparation, reporting that “stirring food is a problem stuck
22
[sic] to bend and hurts.” Id. at 387.
23
• In discussion of “house and yard work,” reporting that “laundry is hard pulling
24
and putting any [consistent] [sic] hurts I always have to stop in between.” Id.
25
• In response to prompt “If you don’t do house or yard work, explain why not,”
26
reporting that “physically it’s hard to do with my pain upper extremities[;] yard
27
1
can’t do[;] very lite house cleaning.” Id. at 388.
2
• In response to prompt “Check any of the following items your illness, injuries, or
3
conditions affect,” checking 15 of 19 boxes and referencing “upper extremities
4
neck pain, squatting hurts,” and referencing hand and wrist pain. Id. at 390.
5
• In summary section at end of report, stating “My day to day it’s hurt from night to
6
all day,” and reporting “issues of my neck, turning hurts and also grasping holding
7
things with chronic severe [tendonitis], arms and wrist, famiglia [sic], nerve pain .
8
. . .” Id. at 392.
9
In the November 14, 2018 “Asthma Questionnaire,” Plaintiff reported the following
10
regarding her symptoms: she does not take inhaler medications because it makes her sick and
11
instead takes steam showers and uses a steam machine, has never been hospitalized for more than
12
48 hours for a respiratory problem, and shortness of breath can affect her all day and take her
13
weeks to recover. AR 396-98 (Exhibit B6E).
14
And the consultative examiner form contained the following characterization of Plaintiff’s
15
physical symptoms: she can complete all her activities of daily living with restrictions related to
16
chronic pain, drive a car for short distances, do simple household chores, prepare meals, grocery
17
shop unattended, and dress and groom herself. AR 906-909 (Exhibit B6F). Critically, the
18
examiner noted that “[a]n additional obstacle to adequate work performance may be the claimant’s
19
medical opinion,” and confirmed that “[t]his matter is beyond the scope of today’s evaluation and
20
is deferred to medical opinion.” Id. at 909.
21
2. ALJ’s Characterization of Plaintiff’s Activities of Daily Living
22
The ALJ described Plaintiff’s activities of daily living as follows: “the claimant lives in a
23
home with her older daughter and son; she rents out two rooms in the house and her daughter
24
helps manage the renters; has difficulty dressing and bathing; has problems reaching in front of
25
her; can drive a car; and texts on her smartphone.” Id. The ALJ provided the following summary
26
of Plaintiff’s daily activities:
27
The claimant reported the following additional activities of daily
1 living: on November 8, 2018—the claimant reported that she is able
to complete all her own activities of daily living; can drive a car for
2 short distances; can perform simple household chores; can prepare
simple meals; can do grocery shopping unattended; and, is able to
3 dress and groom herself (Exhibit B6F/3); and, on November 14,
2018—the claimant reported that she requires no reminders to care
4 for her personal needs and grooming; prepares meals (son helps too);
performs some household chores; drives a car and can go out alone;
5 shops in stores; manages her own money; watches television;
socializes and needs someone to go with her; gets along with others;
6 has difficulty with written and spoken instructions, but just needs
instructions repeated; and, gets along with authority figures (Exhibit
7 B5E).
8 AR 21.
9 3. The ALJ’s Rejection of Plaintiff’s Symptom Statements
The ALJ found Plaintiff’s acknowledged activities of daily living “inconsistent with [her]
10
statements concerning the alleged intensity, persistence, and limiting effects of her symptoms,
11
prior to the established onset date.” AR 21. In particular, the ALJ found that “some of the
12
physical and mental abilities and social interactions required in order to perform [the reported
13
daily activities] . . . are the same as those necessary for obtaining and maintaining employment.”
14
AR 21 (emphasis added).
15
The ALJ also generally referenced the objective medical evidence in discounting
16
Plaintiff’s testimony. Although the ALJ identified medical evidence prior to the EOD, showing
17
Plaintiff “receiving pain management treatment for her back and neck pain and some objective
18
evidence showing degenerative disc disease of the cervical spine,” the ALJ found that “no
19
determination of a residual functional capacity limitation was made by any qualified treating
20
physician/psychiatrist/medical professional that would limit the claimant to the degree asserted by
21
the claimant, prior to the EOD.” AR 22. The ALJ found “somewhat persuasive” the opinions of
22
the State Agency reviewing physicians, which found that Plaintiff was capable of a “medium
23
range of work.” AR 156 (finding that Plaintiff demonstrates the maximum sustained work
24
capability of “medium”), AR 186 (same); AR 201 (same); see also AR 908 (finding that “the
25
claimant’s ability to interact with the public, supervisors, and coworkers appears to be moderately
26
impaired”). Ultimately, the ALJ found that Plaintiff’s “statements concerning the intensity,
27
1
persistence and limiting effects of [her pain] symptoms are not fully supported . . . prior to the
2
EOD.” AR 22.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
1 a. The ALJ Erred in Finding Plaintiff’s Symptom Reports to be
Inconsistent
2
The Court first finds that the ALJ erred in discounting Plaintiff’s subjective
3
complaints, because she did not identify specific inconsistencies between Plaintiff’s testimony
4
regarding her pain symptoms and her reported daily activities. The Ninth Circuit has held that an
5
ALJ may rely on daily activities inconsistent with a plaintiff’s asserted limitations as a clear and
6
convincing reason for finding a plaintiff’s subjective complaints not credible, but when doing so
7
must explain specifically which testimony is undermined by which specific activities. See Molina,
8
674 F.3d at 1113 (affirming ALJ’s finding that plaintiff’s “claimed inability to tolerate even
9
minimal human interaction was inconsistent with her daily activities throughout the disability
10
period,” including walking grandchildren to school, attending church, shopping and taking walks).
11
Here, the ALJ found that “some of the physical and mental abilities and social interactions
12
required in order to perform these activities, as noted above, are the same as those necessary for
13
obtaining and maintaining employment,” with the consequence that Plaintiff’s “ability to
14
participate in such activities is inconsistent with [her] statements concerning the alleged intensity,
15
persistence, and limiting effects of her symptoms” prior to the onset date. AR 21. But that
16
conclusion did not adequately identify what specifically was inconsistent with Plaintiff’s reports
17
of chronic pain that would preclude her from working, as required by Ninth Circuit precedent. See
18
Brown-Hunter, 806 F.3d at 494 (ALJ erred in discounting plaintiff’s subjective complaints
19
because “she did not specifically identify any such inconsistencies; she simply stated her non-
20
credibility conclusion and then summarized the medical evidence supporting her RFC
21
determination”); Burrell v. Colvin, 775 F.3d 1133, 1137-38 (9th Cir. 2014) (ALJ erred in failing to
22
“elaborate on which daily activities conflicted with which part of Claimant’s testimony”;
23
substantial evidence did not support existence of conflict regarding ability to vacuum when
24
claimant had consistently reported that she had trouble vacuuming); Lester v. Chater, 81 F.3d 821,
25
834 (9th Cir. 1995), as amended (Apr. 9, 1996) (ALJ erred in rejecting plaintiff’s testimony
26
because the ALJ provided “no reasons” for rejecting account of the “‘marked’ limitations on
27
1
[plaintiff’s] activities of daily living”).7 In sum, the ALJ did not satisfy the Brown-Hunter
2
requirements in finding Plaintiff’s testimony not credible.
3
b. The Error Was Not Harmless
4
The Ninth Circuit has “adhered to the general principle that an ALJ’s error is harmless
5
where it is ‘inconsequential to the ultimate nondisability determination.’” Molina, 674 F.3d at
6
1115. The ALJ also referenced the objective medical evidence of record and the fact that no
7
reported opinion evidence determined a limitation on Plaintiff’s RFC as bases for the finding that
8
Plaintiff was not disabled. AR 22. Defendant is correct that courts may uphold an ALJ’s
9
credibility determination where the remaining reasons alone constitute clear and convincing
10
evidence. See, e.g., Beltran v. Berryhill, No. 17-CV-06674-NC, 2019 WL 201515, at *7 (N.D.
11
Cal. Jan. 15, 2019) (citing Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162–63 (9th
12
Cir. 2008)). But because “lack of medical evidence cannot form the sole basis for discounting
13
pain testimony,” Burch, 400 F.3d at 681, the Court cannot say that this reason standing alone
14
meets the clear and convincing standard.
15
The ALJ’s reference to large swaths of the medical record also did not meet the clear and
16
convincing standard. As the Ninth Circuit explained in Smartt v. Kijakazi, an ALJ may discount a
17
plaintiff’s subjective pain testimony “by identifying specific discrepancies between her testimony
18
and the objective medical evidence.” 53 F.4th 489, 498 (9th Cir. 2022). In Smartt, the court
19
found that the ALJ “highlighted several inconsistencies between [plaintiff’s] subjective symptom
20
testimony and the objective medical evidence in the record, including record evidence about
21
[plaintiff’s] driving and her irregular use of mobility aids.” Id. The ALJ had identified a “direct
22
contradiction” in the claimant’s testimony regarding her ability to drive, and pointed to
23
inconsistencies in claimant’s use of mobility aids when attending general medical appointments as
24
opposed to pain center appointments and visits associated with her disability application. Id. at
25

26
7 By contrast, in the prior March 2015 decision, the ALJ clearly identified specific daily activities
27 that the ALJ found to be inconsistent with the claimed limitations, and explained why. AR 130-
31.
1
497-498.
2
Here, the ALJ provided “[a] brief review of the medical evidence” related to Plaintiff’s
3
back and neck pain, degenerative disc disease (including a “successful cervical fusion surgery in
4
September 2015”), bilateral lower extremity pain, and edema, concluding that “though the
5
claimant has some medical evidence to support her allegations, the evidence is not sufficient for a
6
finding of meeting or equaling a listing.” AR 22 (citing Exhibits B3F/52-165, 174-226, 235-286,
7
299-312, B9F/10-26, B19F & B20F/2). The ALJ also stated that “[t]he vast majority of the
8
claimant’s medical evidence, after the EOD, shows work up for the additional severe impairments
9
listed above which further support a finding of sedentary work (see Exhibits B1F/17-57, B2F,
10
B3F/1-51, 166-173, 226-234, 287-298, B4F-B5F, B7F-B8F, B9F/1-9 & B10F-B18F).” AR 22.
11
These references to what appears to be hundreds of pages of medical records, without identifying
12
the source of the ALJ’s specific characterizations, also did not explain what in those records was
13
inconsistent with Plaintiff’s pain symptom reports, or how. For this reason, the Court cannot find
14
that the ALJ’s Brown-Colvin error (i.e., not explaining the basis for discrediting Plaintiff’s
15
testimony as inconsistent with “some” of her daily activities) was harmless. Cf. Smartt, 53 F.4th
16
at 499-500 (finding that “the ALJ’s determination that [claimant’s] self-reported activities were
17
inconsistent with the constant ‘10/10’ pain she described was not unreasonable”).
18
The Court is mindful that “[i]t is not the court’s role to ‘second-guess’ an ALJ’s reasonable
19
interpretation of a claimant’s testimony.” Smartt, 53 F.4th at 500. But it views remand to be
20
compelled here based on the Ninth Circuit authorities discussed in this order. See id. at 499
21
(explaining that “[u]ltimately, the ‘clear and convincing’ standard requires an ALJ to show his
22
work,” and finding the standard met where “the ALJ’s rationale is clear enough that it has the
23
power to convince,” which was the case when “the ALJ cited specific, clear and convincing
24
examples across a multi-year period contrasting [claimant’s] subjective pain testimony with
25
objective medical evidence”). On remand, the ALJ’s analysis of Plaintiff’s testimony and daily
26
activities must “identify the testimony she found not credible” and “link that testimony to the
27
particular parts of the record supporting her non-credibility determination.” See Brown-Hunter,
806 F.3d at 494.
B. Evaluation of Medical Findings And Opinions
Because the case is being remanded, the Court need not address Plaintiffs claim that the
° ALJ erred in evaluating the medical opinions as to her alleged continuous symptoms of depression
° and anxiety, including by failing to discuss Plaintiff's anxiety medication prescribed by physician
’ assistant Reese. Pl. Mot. at 5, 21-23; Pl. Reply at 7-12. Plaintiff also argues that the ALJ erred in
° failing to address the letter by marriage and family therapist Helander. Pl. Mot. at 21-241-23; Pl.
° Reply at 12-14. These issues do not appear to have been raised squarely before the ALJ, and
Plaintiff did not raise her argument about the medications prescribed by Ms. Reese before even
" this Court until her reply brief. It is appropriate for the ALJ to address these issues in the first
instance on remand. See generally AR 549 — 691, 1160.

4 IV. CONCLUSION
S The Court GRANTS Plaintiff's motion for summary judgment, Pl. Mot. (Dkt. No. 17), and
DENIES Defendant’s cross-motion for summary judgment, Def. Mot. (Dkt. No. 20). The Court
REMANDS this case to the Social Security Administration for further proceedings on an open
= " record consistent with this order. The Clerk is directed to enter judgment in favor of Plaintiff and
18 close the case.
19
IT IS SO ORDERED.
Dated: 8/18/2023 2 J 3 □ |
21 .
HAYWOOD S. GILLIAM, JR.
22 United States District Judge
23
24
25
26
27
28 15

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10076273. Public record. Not legal advice.