Lopez Esquivel v. Berryhill

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 GABRIEL E., Case No.: 19-CV-00862-BGS

12 Plaintiff,

ORDER:

13 v. (1) GRANTING PLAINTIFF’S

MOTION FOR SUMMARY

14 ANDREW SAUL,

JUDGMENT [ECF No. 17];

15 Defendant. (2) DENYING DEFENDANT’S

CROSS-MOTION FOR

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SUMMARY JUDGMENT [ECF

17 No. 18]; AND

(3) REMANDING FOR FURTHER

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ADMINISTRATIVE

19 PROCEEDINGS

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[ECF 17-18]

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22 I. INTRODUCTION

23 Plaintiff Gabriel E. (“Plaintiff”) has filed a Complaint seeking judicial review of

24 the Commissioner of the Social Security Administration’s (“Commissioner” or

25 “Defendant”) denial of disability insurance benefits under Titles II and XVI of the Social

26 Security Act, (ECF 1), and the Commissioner has filed the Administrative Record. (ECF

27 16.) Plaintiff has filed a Motion for Summary Judgment seeking reversal of the final

28 decision denying benefits and payment of benefits, or, in the alternative, a remand for

1 further administrative proceedings. (Pl.’s Mot. for Summary Judgment [EFC No. 17]

2 (“Mot.”).) Plaintiff argues the Administrative Law Judge (“ALJ”) committed reversible

3 error in rejecting his subjective symptom testimony regarding the severity of his

4 symptoms. (Id.) The Commissioner’s Cross Motion for Summary Judgment and

5 Opposition to Plaintiff’s Motion argues that the ALJ properly evaluated and rejected

6 Plaintiff’s subjective symptom testimony. (Cross Mot. for Summ. J. (“Cross Mot.”)

7 [ECF No. 18].)

8 After careful consideration of the parties’ arguments, the administrative record and

9 the applicable law and for the reasons discussed below, Plaintiff’s Motion for Summary

10 Judgment is granted, the Commissioner’s Cross Motion for Summary Judgment is denied,

11 and the matter is remanded to the agency for further proceedings.

12 II. PROCEDURAL HISTORY

13 Plaintiff filed an application for disability insurance benefits and supplemental

14 social security income on August 19, 2015, alleging disability beginning on June 22,

15 2015. (AR 314-315.) His application was denied, and his subsequent request for

16 reconsideration was also denied. (AR 250-54 (initial denial), 257-59 (requests for

17 reconsideration), 260-65 (denial of reconsideration).) At Plaintiff’s request, a hearing

18 before an ALJ was held on March 22, 2018 at which Plaintiff was represented by counsel

19 and testified, along with a vocational expert and a medical expert. (AR 165-205, 266-

20 68.) On May 17, 2018, the ALJ issued a decision finding Plaintiff was not disabled and

21 denied Plaintiff’s applications for benefits. (AR 16-26.) The Appeals Council denied

22 review on March 8, 2019. (AR 1-7.)

23 III. SUMMARY AND ANALYSIS OF THE ALJ DECISION

24 The ALJ’s decision goes through each potentially dispositive step of the familiar

25 five-step evaluation process for determining whether an individual has established

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1 eligibility for disability benefits. (AR 20-26.); see Keyser v. Comm’r Soc. Sec. Admin.,

2 648 F.3d 721, 724-25 (9th Cir. 2011); see 20 C.F.R. §§ 404.1520, 416.920.

3 At step one, the ALJ determined that Plaintiff had not engaged in substantial

4 gainful activity since June 22, 2015. (AR 21.) At step two, the ALJ found Plaintiff had

5 “the following severe impairment: congestive heart failure.” (Id.) At step three, the ALJ

6 considers whether the claimant’s impairments “meet or equal” one or more of the specific

7 impairments or combination of impairments described in 20 C.F.R. Part 404, Subpart P,

8 Appendix 1, the listings. See §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(d), 404.1525,

9 404.1526, 416.925, 416.926. Here, the ALJ found Plaintiff did not meet listing 4.02.

10 (AR 22.)

11 If the claimant does not meet a listing, the ALJ “assess[es] and makes a finding about

12 [the claimant’s] residual functional capacity based on all the relevant medical and other

13 evidence in [the claimant’s] case record.” 20 C.F.R. §§ 404.1520(e), 416.920(e). A

14 claimant’s residual functional capacity (“RFC”) is the “maximum degree to which the

15 individual retains the capacity for sustained performance of the physical-mental

16 requirements of jobs.” 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(c). The RFC is used

17 at the fourth and fifth steps to determine whether the claimant can do their past work (step

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1 In order to qualify for disability benefits, an applicant must show that: (1) he or she suffers

21 from a medically determinable physical or mental impairment that can be expected to result

in death, or that has lasted or can be expected to last for a continuous period of not less

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than twelve months; and (2) the impairment renders the applicant incapable of performing

23 the work that he or she previously performed or any other substantially gainful employment

that exists in the national economy. See 42 U.S.C. §§ 423(d)(1)(A), (2)(A). An applicant

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must meet both requirements to be “disabled.” Id. The claimant bears the burden of

25 proving he is disabled. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th

Cir. 2009). But, at step five, the Commissioner bears the burden of showing the claimant

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can do other kinds of work that exist in significant numbers in the national economy “taking

27 into consideration the claimant’s residual functional capacity, age, education, and work

experience.” Id.

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1 four) or adjust to other available work (step five). Id.

2 Here, the ALJ found the following RFC for Plaintiff:

3 After careful consideration of the entire record, the undersigned finds

the claimant has the residual functional capacity to perform light

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unskilled work as defined in 20 CFR 404.1567(b) and 416.967(b)2

5 except the claimant should avoid climbing ladders, scaffolds and

hazards such as unprotected heights and moving machinery. The

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claimant is limited standing/walking for four hours out of eight hours

7 and sitting for six hours out of eight.

8 (AR 22.)

9 At step four, the ALJ found Plaintiff could not do his past relevant work as a farm

10 laborer or machine operator. (AR 24.) At step five, the ALJ considers whether the claimant

11 can do other work, considering the claimant’s age, education, work experience, and the

12 limitations in the RFC. 20 C.F.R. §§ 404.1520(a)(v). If the claimant can do other available

13 work, then the claimant is found not disabled. If not, then the claimant is disabled. See 20

14 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(g); see also Bustamante v. Massanari,

15 262 F.3d 949, 954 (9th Cir. 2001). Here, the ALJ heard and relied on testimony from a

16 vocational expert that work existed in significant numbers in the national economy for a

17 person of Plaintiff’s age, education, work experience with the RFC found by the ALJ. (AR

18 25-26, 201-04.)

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2 Light Work is defined as:

23 Light work involves lifting no more than 20 pounds at a time with frequent

lifting or carrying of objects weighing up to 10 pounds. Even though the

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weight lifted may be very little, a job is in this category when it requires a

25 good deal of walking or standing, or when it involves sitting most of the time

with some pushing and pulling of arm or leg controls. To be considered

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capable of performing a full or wide range of light work, you must have the

27 ability to do substantially all of these activities.

20 CFR § 404.1567(b); 416.967(b).

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1 Plaintiff challenges the ALJ’s rejection of Plaintiff’s symptom testimony, arguing

2 the ALJ impermissibly rejected his symptom testimony without providing specific, clear,

3 and convincing reasons for the rejections and failing to explain how his daily activities

4 were inconsistent with his testimony. (ECF 17-1 at 5-13.) Defendant counters that the

5 ALJ properly relied on medical evidence, Plaintiff’s improvement, a gap in treatment, and

6 Plaintiff’s activities of daily living. (ECF 18-1 at 4-10.)

7 IV. SCOPE OF REVIEW

8 Section 405(g) of the Social Security Act allows unsuccessful claimants to seek

9 judicial review of a final agency decision. 42 U.S.C. § 405(g). This Court has jurisdiction

10 to enter a judgment affirming, modifying, or reversing the Commissioner’s decision. See

11 id.; 20 C.F.R. § 404.900(a)(5). The matter may also be remanded to the Social Security

12 Administration for further proceedings. 42 U.S.C. § 405(g).

13 If the Court determines that the ALJ’s findings are not supported by substantial

14 evidence or are based on legal error, the Court may reject the findings and set aside the

15 decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001).

16 The Court “must consider the entire record as a whole and may not affirm simply by

17 isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin., 466

18 F.3d 880, 882 (9th Cir. 2006) (citation omitted). The Court may “review only the reasons

19 provided by the ALJ in the disability determination and may not affirm the ALJ on a ground

20 upon which he did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).

21 V. DISCUSSION

22 A. Legal Standards

23 The ALJ must engage “in a two-step analysis to determine whether a claimant’s

24 testimony regarding subjective pain or symptoms is credible.” Garrison, 759 F.3d at 1014

25 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). At the first step,

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

27 an underlying impairment which could reasonably be expected to produce the pain or other

28 symptoms alleged.” Id. (citations omitted).

1 If the claimant satisfies the first step and there is no determination of malingering by

2 the ALJ, “the ALJ must provide ‘specific, clear, and convincing reasons for’ rejecting the

3 claimant’s testimony regarding the severity of the claimant’s symptoms.” Treichler v.

4 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Smolen v.

5 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); Garrison, 759 F.3d at 1014-15; Parra v.

6 Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (citations omitted). The Ninth Circuit “require[s]

7 the ALJ to ‘specifically identify the testimony from a claimant [the ALJ] finds not to be

8 credible and . . . explain what evidence undermines this testimony.” Treichler, 775 F.3d at

9 1102; Lambert v. Saul, — F.3d —, 2020 WL 6735633, at *2 (9th Cir. 2020) (“[T]he ALJ

10 must identify the specific testimony that he discredited and explain the evidence

11 undermining.”); Smolen, 80 F.3d at 1284 (“The ALJ must state specifically which symptom

12 testimony is not credible and what facts in the record lead to that conclusion.”); Parra, 481

13 F.3d at 750 (“The ALJ must provide clear and convincing reasons to reject a claimant’s

14 subjective testimony, by specifically identifying what testimony is not credible and what

15 evidence undermines the claimant’s complaints.”).

16 “Once the claimant produces medical evidence of an underlying impairment, the

17 Commissioner may not discredit the claimant’s testimony as to the severity of symptoms

18 merely because they are unsupported by objective medical evidence.” Reddick, 157 F.3d

19 at 722 (citing Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991)).

20 B. ALJ’s Reasons for Rejecting Plaintiff’s Symptom Testimony

21 Here, the ALJ identifies some testimony from Plaintiff regarding his symptoms, (AR

22 22), although as explained below, there is significant symptom testimony that is not

23 addressed at all. Additionally, while the Court can decipher some reasoning for rejecting

24 the testimony that is identified, those reasons are not specific, clear, and convincing.

25 The ALJ’s decision acknowledges that Plaintiff testified that after his heart attack he

26 was “unable to work because he experienced chest pain, headaches, and was unable to walk

27 for more than 15 minutes.” (Id.) The ALJ notes he had been using a pacemaker for a year,

28 had trouble concentrating, was unable to walk more than one hour and could lift up to 20

1 pounds. (Id.) The decision also states that “claimant reported that he could only perform

2 light household chores and walked hi[s] children to school at times.” (Id.)

3 The ALJ then goes on to conclude “claimant’s statements concerning the intensity,

4 persistence and limiting effects of these symptoms are not entirely consistent with the

5 medical evidence and other evidence in the record for the reasons explained in this

6 decision.” (AR 23.) The ALJ then summarizes some of the medical evidence, including

7 what the Court will construe as the ALJ’s reasons for rejecting the testimony identified

8 above. (Id.) In summarizing the record concerning Plaintiff’s hospitalizations, the ALJ

9 notes Plaintiff’s improvement while hospitalized for his heart failure in June 2015 and

10 again while hospitalized in July 2015 when he was experiencing shortness of breath and

11 difficulty breathing. (Id.) The ALJ also identifies normal heart and lung sounds at a follow

12 up visit a few weeks after hospitalization and the stabilization of Plaintiff’s medications at

13 an August 2015 follow-up visit. (Id.) The ALJ decision also noted minimal treatment in

14 2017 and, as to daily activities stated “claimant testified that he was able to perform light

15 household chores and taking care of his children including walking his children to school.”

16 (Id.) The ALJ then concludes “[o]verall, the claimant’s allegations of disabling limitations

17 arising from his heart condition [are] inconsistent with the records as a whole.” (Id.)

18 C. Analysis

19 The first step is not at issue here. The ALJ found “the claimant’s medically

20 determinable impairments could reasonably be expected to cause the alleged symptoms.”

21 (AR 23.) Accordingly, the Court finds the first step satisfied. See Smolen v. Chater, 80

22 F.3d 1273, 1282 (9th Cir. 1996) (“[T]he claimant need not show that her impairment could

23 reasonably be expected to cause the severity of the symptom she has alleged; she need only

24 show that it could reasonably have caused some degree of the symptom.”).

25 As to the second step, because the ALJ did not find Plaintiff was malingering, the

26 issue is whether the ALJ provided “specific, clear, and convincing reasons” for rejecting

27 Plaintiff’s testimony, including identifying “the specific testimony” the ALJ found “not to

28 be credible and “explaining what evidence undermine[d] Plaintiff’s testimony. Treichler,

1 775 F.3d at 1102.

2 1. Shortness of Breath

3 Plaintiff testified that after his hospitalization in 2015 he “couldn’t walk for more

4 than 15 minutes without feeling out of breath, like in water.” (AR 180.) As to his

5 condition when he testified, he stated that he walks about an hour for exercise but cannot

6 do it every day. (AR 183-84, 186.) He testified that he gets out of breath when he

7 finishes the hour walk. (AR 187.) The maximum amount of time he could walk at a job

8 is one hour. (Id.) He cannot walk for two hours every day. (Id.) Additionally, he testified

9 that he can’t lift more than 20 pounds and could only do four reps then he has to sit down

10 and catch his breathe. (AR 186.)

11 As to Plaintiff’s testimony that he suffers from shortness of breath, the ALJ

12 focused primarily on his condition in 2015, when he reported that he was able to walk

13 more without shortness of breath. (AR 23.) However, the ALJ never made a determined

14 as to how long he could walk without shortness of breath. Further, Plaintiff’s

15 improvement in walking more is consistent with his testimony that he could only walk

16 about 15 minutes after his hospitalization in 2015 before having shortness of breath. (AR

17 180.)

18 The ALJ focused on Dr. Conception’s January 2016 consultative evaluation of

19 Plaintiff wherein Dr. Conception opined Plaintiff could stand and/or walk for two hours

20 in an eight-hour day. (AR 23.) Of note, Dr. Conception’s evaluation did not address

21 Plaintiff’s shortness of breath caused by walking more than one hour. (AR 519-523.)

22 Further, Dr. Conception’s assessment included walking and/or standing. (AR 522.)

23 Plaintiff testified that he can do a job that allows him to stand, but not sit for long periods

24 because sitting makes him feel uncomfortable. I need to stand. (AR 187.)3

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27 3 The ALJ never addressed Plaintiff’s ability to stand and walk for 2 hours as opposed to

walking for 2 hours when determining whether there were jobs available that would

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1 The ALJ seems to attempt to reject Plaintiff’s symptom testimony based on

2 Plaintiff’s daily activities but provides no reasoning and only provides a single sentence

3 as to his daily activities. Just before concluding Plaintiff’s allegations of his limitations

4 are “inconsistent with the record as a whole,” the decision states only that “the claimant

5 testified that he was able to perform light household chores and taking care of his

6 children including walking his children to school.” (AR 23.) However, there is no

7 explanation how these minimal activities undermine or are inconsistent with Plaintiff’s

8 symptom testimony. “Though inconsistent daily activities may provide justification for

9 rejecting symptom testimony, ‘the mere fact that a plaintiff has carried on certain daily

10 activities . . . does not in any way detract from [the claimant’s] credibility as to . . .

11 overall disability.’” Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (quoting

12 Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004)). Notwithstanding, Plaintiff

13 testified that he walks kids to school, which is about 3 blocks away. (AR 188.) The light

14 chores he described was changing diapers. (Id.) These daily activities do not support the

15 conclusion that Plaintiff can walk for two hours daily, just the opposite.

16 The ALJ justifies his finding that Plaintiff can perform light work because his

17 condition generally improved after treatment and his ongoing treatment was minimal.

18 However, the ALJ never explains how his generally improved condition after treatment

19 related to his shortness of breath symptoms. In fact, Dr. Amosu testified at the hearing

20 that Plaintiff has some improvement with medication in his heart function, but it is not

21 normal. (AR 191-92.) The fact that the medication makes his heart function better does

22 not mean that his shortness of breath is also better.

23 The decision concludes that overall, the Plaintiff’s allegations of disabling

24 limitations arising from his heart condition are inconsistent with the record as a whole. Yet

25 the ALJ does not identify from the medical record how Plaintiff’s testimony about suffering

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1 from shortness of breath is undermined by the record as a whole. “Providing a summary

2 of medical evidence . . . is not the same as providing clear and convincing reasons for

3 finding the claimant’s symptom testimony not credible.” See Lambert, 2020 WL 6735633,

4 at *10 (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)) (emphasis in

5 original). The decision fails to explain why Plaintiff’s testimony is not credible. See

6 Treichler, 775 F.3d at 1103 (Decision must “identify what parts of the claimant’s testimony

7 were not credible and why”) (emphasis added); see also Lambert, 2020 WL 6735633, at

8 *10 (Finding four high-level reasons the claimant’s testimony was less than consistent with

9 the evidence insufficient).

10 2. Fatigue

11 Plaintiff testified that he does not have energy, and that for two to three days out of

12 each week he has episodes when he sleeps for two to three days and can’t get out of bed.

13 (AR 182.) He explains that he does not have and has episodes where he’s “asleep like for

14 two to three days.” (Id.) He testified that these episodes happen “like two to three days

15 out of the week.” (Id.) He “feel[s] like [he] is going to die, no appetite” and just sleeps.

16 (Id.) In response to the ALJ’s suggestion this happens because he does not sleep the

17 night before, Plaintiff explains that it happens when he tries to force himself to do daily

18 tasks like “pick up his kids from school or help them with homework.” (Id.) He explains

19 it gets him tired, he just sleeps, and can’t get up from bed. (Id.)

20 This is significant testimony that is completely unaddressed and, as explained below,

21 would likely change the disability determination. See Lambert, 2020 WL 6735633, at *10

22 (Noting line-by-line analysis is not required, but summary of the medical evidence with

23 non-specific conclusions is insufficient). Nor can the Court fill in these gaps based on the

24 record. Id. (Rejecting a district court’s attempt to “shore up the ALJ’s decision” and

25 explaining that “[a]lthough the inconsistencies identified by the district court could be

26 reasonable inferences drawn from the ALJ’s summary of the evidence, the credibility

27 determination is exclusively the ALJ’s to make,’ and ‘we are constrained to review the

28 reasons the ALJ asserts.”)(citations omitted); Garrison, 759 F.3d at 1010 (Finding the

1 Court may “review only the reasons provided by the ALJ in the disability determination

2 and may not affirm the ALJ on a ground upon which he did not rely.”).

3 In that the ALJ did not address this testimony from Plaintiff, the ALJ failed to

4 provide specific, clear, and convincing reasons for rejecting Plaintiff’s symptom testimony.

5 D. Harmless Error

6 “ALJ errors in social security cases are harmless if they are ‘inconsequential to the

7 ultimate nondisability determination.’” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir.

8 2015) (quoting Stout v. Comm’r of Soc. Sec., 454 F.3d 1050, 1055-56 (9th Cir. 2006));

9 see also Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008) (An

10 ALJ’s reliance on erroneous reasons is harmless so long as the “remaining reasoning and

11 ultimate credibility determination were adequately supported by substantial evidence”).

12 “[W]here the magnitude of an ALJ error is more significant, then the degree of certainty

13 of harmlessness must also be heightened before an error can be determined to be

14 harmless.” Id.

15 The Court cannot find the ALJ’s erroneous rejection of Plaintiff’s testimony

16 harmless. The vocational expert that testified at Plaintiff’s hearing indicated that Plaintiff

17 would not be able to perform the occupations identified if he missed three days of work a

18 month. In short, that means that if Plaintiff’s testimony that he regularly suffers episodes

19 when he is unable to get out of bed for two to three days is credited, there is no evidence

20 in the record4 that there are jobs available to Plaintiff with his limitations. If Plaintiff’s

21 testimony were credited, it would likely be consequential to the ultimate disability

22 determination.

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4 The Court cannot say definitively that there are no jobs because these are just two there

27 were identified by the vocational expert as occupations Plaintiff could do subject to the

RFC identified by the ALJ. However, the vocational expert did testify that he would not

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1 E. Remand

2 “The rare circumstances that result in a direct award of benefits are not present in

3 this case.” Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2018). “When the ALJ

4 denies benefits and the court finds error, the court ordinarily must remand to the agency

5 for further proceedings before directing an award of benefits.” Id. at 1045 (citing

6 Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014)). The credit-as-

7 true analysis “permits, but does not require, a direct award of benefits on review but only

8 where the [ALJ] has not provided sufficient reasoning for rejecting testimony and there

9 are no outstanding issues on which further proceedings in the administrative court would

10 be useful.” Id. at 1044. Under the three-part rule, the Court first considers “whether the

11 ‘ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant

12 testimony or medical opinion.’” Id. at 1045 (quoting Garrison, 759 F.3d at 1019). This

13 step is met for the reasons set forth above.

14 However, at the second step, the Court considers “whether there are ‘outstanding

15 issues that must be resolved before a disability determination can be made’ and whether

16 further administrative proceedings would be useful.’” Id. (quoting Treichler, 775 F.3d at

17 1101). “In evaluating this issue, [the Court] consider[s] whether the record as a whole is

18 free from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and

19 whether the claimant’s entitlement to benefits is clear under the applicable legal rules.”

20 Treichler, 775 F3d at 1104-05. “Where . . . an ALJ makes a legal error, but the record is

21 uncertain and ambiguous, the proper approach is to remand the case to the agency.” Id. at

22 1105. When, as here, the ALJ’s findings regarding the claimant’s subjective symptom

23 testimony are inadequate, remand for further findings on credibility is appropriate. See

24 Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995). As discussed above, the Court is not

25 going to create reasons the ALJ did not give or support, but the Court does find under these

26 circumstances, further administrative proceedings are necessary to allow the ALJ to do this

27 evaluation.

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1 || VI. CONCLUSION

2 Based on the above reasoning, Plaintiff's motion for summary judgment (ECF No.

3 is GRANTED, the Commissioner’s cross-motion for summary judgment (ECF No.

4 is DENIED, and the case be REMANDED to the agency for further proceedings.

5 IT IS SO ORDERED.

6 || Dated: November 24, 2020 : 2 p / /

on. Bernard G. Skomal

8 United States Magistrate Judge

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