# Moore v. Saul

> District Court, S.D. California · October 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10084674

## Case

- **Court:** District Court, S.D. California
- **Decided:** October 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9
10 JULIE R. M., Case No.: 20cv1608-GPC-MDD

11 Plaintiff,
REPORT AND
12 v. RECOMMENDATION GRANTING
PLAINTIFF’S MOTION FOR
13 KILOLO KIJAKAZI,1 Acting SUMMARY JUDGMENT AND
14 Commissioner of Social Security, DENYING DEFENDANT’S CROSS-
MOTION FOR SUMMARY
15 Defendant. JUDGMENT
16
17 [ECF Nos. 16, 17]
18
19 Julie R. M. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g)
20 for judicial review of the final administrative decision of the Commissioner of
21 the Social Security Administration (“Commissioner”) denying Plaintiff’s Title
22 II application for Period of Disability and Disability Insurance Benefits, and
23 Plaintiff’s Title XVI application for Supplemental Security Income. (AR at
24
25
26 1 Kilolo Kijakazi became Acting Commissioner of Social Security on July 9, 2021, and is
therefore substituted for Andrew M. Saul as the Defendant in this action. See 42 U.S.C. §
1 16-32).2 Defendant filed a cross-motion and opposition to Plaintiff’s motion
2 for summary judgment, asking the Court to affirm the denial of benefits.
3 (ECF No. 17, hereinafter “Oppo.”).
4 For the reasons expressed herein, the Court RECOMMENDS
5 Plaintiff’s motion for summary judgment be GRANTED, Defendant’s cross-
6 motion for summary judgment be DENIED, and the case be REMANDED
7 for further administrative proceedings.
8 I. BACKGROUND
9 Plaintiff was born in September 1962. (AR at 30). On the alleged
10 disability onset date, January 1, 2010, Plaintiff was categorized as a younger
11 individual because she was 47 years old. 20 C.F.R. § 404.1563, 416.963.
12 Plaintiff was 54 years old when the instant application was filed on August
13 21, 2017, which categorized her as a person closely approaching advanced
14 age. (AR at 30).
15 A. Procedural History
16 On August 21, 2017, Plaintiff filed an application for Period of
17 Disability and Disability Insurance Benefits and an application for
18 Supplemental Security Income under Titles II and XVI of the Social Security
19 Act. (AR at 16). Plaintiff alleges a disability beginning on January 1, 2010.
20 (Id.). After her applications were denied initially and upon reconsideration,
21 Plaintiff requested an administrative hearing before an administrative law
22 judge (“ALJ”). (AR at 213-14). An administrative hearing was held on July
23 29, 2019. (AR at 38-78). Plaintiff appeared and was represented by attorney
24 Lisa Mouradian at the hearing. (AR at 40). Testimony was taken from
25

26
2 “AR” refers to the Certified Administrative Record filed on March 18, 2021. (ECF No.
1 Plaintiff and Victoria Rei, an impartial vocational expert (“VE”). (See AR at
2 38-78). On September 9, 2019, the ALJ issued a decision denying Plaintiff’s
3 claims.3 (AR at 16-32).
4 On November 1, 2019, Plaintiff sought review with the Appeals Council.
5 (AR at 258-59). On July 21, 2020, the Appeals Council denied Plaintiff’s
6 request for review and declared the ALJ’s decision to be the final decision of
7 the Commissioner of Social Security in Plaintiff’s case. (AR at 1-6). This
8 timely civil action followed.
9 II. DISCUSSION
10 A. Legal Standard
11 Sections 405(g) and 1383(c)(3) of the Social Security Act allow
12 unsuccessful applicants to seek judicial review of a final agency decision of
13 the Commissioner. 42 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial
14 review is limited in that a denial of benefits will not be disturbed if it is
15 supported by substantial evidence and contains no legal error. Id.; see also
16 Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
17 Substantial evidence “is a ‘term of art’ used throughout administrative
18 law to describe how courts are to review agency factfinding.” Biestek v.
19 Berryhill, 139 S. Ct. 1148, 1154 (2019). Courts look “to an existing
20 administrative record and ask[] whether it contains ‘sufficien[t] evidence’ to
21 support the agency’s factual determinations.” Id. “[T]he threshold for such
22 evidentiary sufficiency is not high. Substantial evidence, [the Supreme
23 Court] has said, is ‘more than a mere scintilla.’ It means—and means only—
24
25
26 3 As the ALJ’s decision explains, Plaintiff previously filed for Title II and Title XVI
benefits in 2013. Her prior claims were denied and are not being reopened. (See AR at 16-
1 ‘such relevant evidence as a reasonable mind might accept as adequate to
2 support a conclusion.’” Id. The Ninth Circuit explains that substantial
3 evidence is “more than a mere scintilla but may be less than a
4 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012)
5 (quotation marks and citations omitted), superseded by regulation on other
6 grounds.
7 An ALJ’s decision is reversed only if it “was not supported by
8 substantial evidence in the record as a whole or if the ALJ applied the wrong
9 legal standard.” Id. “To determine whether substantial evidence supports
10 the ALJ’s determination, [the Court] must assess the entire record, weighing
11 the evidence both supporting and detracting from the agency’s conclusion.”
12 Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citing Mayes v.
13 Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The Court “may not reweigh
14 the evidence or substitute [its] judgment for that of the ALJ.” Id. “The ALJ
15 is responsible for determining credibility, resolving conflicts in medical
16 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035,
17 1039 (9th Cir. 1995). “When the evidence can rationally be interpreted in
18 more than one way, the court must uphold the [ALJ’s] decision.” Mayes, 276
19 F.3d at 459.
20 Section 405(g) permits a court to enter a judgment affirming, modifying
21 or reversing the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing
22 court may also remand the matter to the Social Security Administration for
23 further proceedings. Id.
24 B. Summary of the ALJ’s Findings
25 In rendering his decision, the ALJ followed the Commissioner’s five-step
26 sequential evaluation process. See 20 C.F.R. § 404.1520. At step one, the
ALJ found that Plaintiff had not engaged in substantial gainful activity since
1 January 1, 2010. (AR at 19).
2 At step two, the ALJ found that Plaintiff had the following severe
3 impairments: “1) a mental impairment variously diagnosed as bipolar
4 disorder/major depressive disorder and PTSD; and 2) obesity.” (Id.).
5 At step three, the ALJ found that Plaintiff did not have an impairment
6 or combination of impairments that met or medically equaled one of the
7 impairments listed in the Commissioner’s Listing of Impairments. (AR at 21)
8 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
9 404.1525, 404.1526, 416.920(d), 416.925 and 416.926)).
10 Next, after considering the entire record, the ALJ determined that
11 Plaintiff had the residual functional capacity (“RFC”) to perform medium
12 work with the following limitations:
13 [the claimant] could occasionally climb ladders, ropes, or scaffolds
and could perform all other postural activities on a frequent basis
14
(climbing ramps and stairs, balancing, stooping, kneeling,
15 crouching, and crawling); could sustain attention and concentration
for at least 2-hour intervals at a time for only unskilled work duties
16
as would be consistent with an SVP level of 1 to 2 but no greater
17 than 2; and should also have no greater than the occasional
interaction with any coworkers, or supervisors, or members of the
18
general public; and should also not be exposed to any frequent
19 changes in the workplace environment.
20 (AR at 23).
21 The ALJ stated that his RFC assessment was based on all the evidence
22 and the extent to which Plaintiff’s symptoms are consistent with the objective
23 medical evidence and other evidence. (Id.). The ALJ also stated that he
24 considered the opinion evidence and prior administrative medical findings in
25 accordance with the requirements of 20 C.F.R. 404.1520c and 416.920c.
26 The ALJ then proceeded to step four of the sequential evaluation
1 housekeeper/cleaner position and that an individual with the above RFC
2 would be able to perform the job of a housekeeper/cleaner. (AR at 30). The
3 ALJ found that this job does not qualify as past relevant work because the
4 evidence does not demonstrate that Plaintiff performed the job at the level of
5 substantial gainful activity. (Id.).
6 For the purposes of his step five determination, the ALJ accepted the
7 testimony of the VE. (AR at 31). The VE identified the jobs of laundry
8 laborer (DOT No. 361.687-018); industrial cleaner (DOT No. 381.687-018);
9 and kitchen helper (DOT No. 318.687-010) as jobs Plaintiff could perform,
10 and which exist in significant numbers in the national economy. (AR at 31).
11 The ALJ therefore found that Plaintiff was not disabled. (AR at 32).
12 C. Issues in Dispute
13 The Court’s review of alleged error by the ALJ was significantly
14 complicated by Plaintiff’s counsel’s inadequate briefing. Many of Plaintiff’s
15 arguments were underdeveloped and lacked supporting legal authority or
16 were simply incoherent. The Court is cognizant that Social Security
17 claimants already face long waiting times for resolution of their cases and
18 that Plaintiff’s case should not be prejudiced by her counsel’s inadequate
19 briefing. Therefore, the Court considers Plaintiff’s arguments to the best of
20 its ability despite these limitations.
21 The issues in dispute are: (1) whether the ALJ erred in his analysis of
22 the opinions from Plaintiff’s treating providers; (2) whether the ALJ erred in
23 his mental functioning RFC determination; (3) whether the ALJ erred in
24 evaluating Plaintiff’s subjective symptom testimony; and (4) whether the ALJ
25 erred at step five by finding Plaintiff not disabled based on the Medical-
26 Vocational Guidelines.
1 1. Medical Opinions
2 Plaintiff argues that the ALJ erred in finding the opinions by Dr.
3 Tartaglione and Rhonda Smallwood, L.M.F.T. (“Ms. Smallwood”) not
4 significantly persuasive. (Reply at 3). Defendant argues the ALJ properly
5 found the opinions of Dr. Tartaglione and Ms. Smallwood not significantly
6 persuasive. (Oppo. at 19-22).
7 As an initial matter, the parties debate whether the regulatory
8 amendments promulgated by the SSA for cases, such as this one, filed after
9 March 27, 2017 invalidate the treating source rule in the Ninth Circuit. (See
10 MSJ at 15-16, Reply at 2-3, Oppo. at 10-18). The treating source rule
11 “allowed an ALJ to reject a treating or examining physician’s uncontradicted
12 medical opinion only for ‘clear and convincing reasons,’ and allowed a
13 contradicted opinion to be rejected only for ‘specific and legitimate reasons’
14 supported by substantial evidence in the record.” Kathy Jean T. v. Saul, No.
15 20cv1090-RBB, 2021 U.S. Dist. LEXIS 100698, at *14 (S.D. Cal. May 27,
16 2021) (citing Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017)). The
17 2017 regulations promulgated by the SSA state that the ALJ need “not defer
18 or give any specific evidentiary weight, including controlling weight, to any
19 medical opinion(s) or prior administrative finding(s), including those from [a
20 claimant’s] medical sources.” See 20 C.F.R. §§ 404.1520c(a), 416.920c(a).
21 Plaintiff contends that the Ninth Circuit treating source rule is still
22 applicable despite the new regulations. (See Reply at 2-3). Through
23 regulation, the Social Security Administration may properly displace judicial
24 precedent when an administrative agency intervenes by providing an
25 “authoritative and reasonable interpretation of a statute.” See Lambert v.
26 Saul, 980 F.3d 1266, 1268, 1275 (9th Cir. 2020). Additionally, the Supreme
Court has stated that “[o]nly a judicial precedent holding that the statute
1 unambiguously forecloses the agency’s interpretation, and therefore contains
2 no gap for the agency to fill, displaces a conflicting agency construction.”
3 Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S.
4 967, 982-83 (2005).
5 The Ninth Circuit has not yet issued a decision clarifying whether it
6 will continue to require an ALJ to include “specific and legitimate reasons”
7 for rejecting contradicted opinions from a claimant’s treating providers.
8 District courts in the 9th Circuit generally have determined that the Circuit’s
9 prior rule providing deference to treating providers no longer applies because
10 of the new regulations. See, e.g., Kathy Jean T., 2021 U.S. Dist. LEXIS
11 100698, at *14 (“This measure of deference to a treating physician is no
12 longer applicable under the 2017 revised regulations.”). But see Kathleen G.
13 v. Comm’r of Soc. Sec., 2020 U.S. Dist. LEXIS 210471, at *7-8 (W.D. Wash.
14 Nov. 10, 2020) (finding that the “specific and legitimate” standard for
15 rejecting contradicted opinions of a treating doctor continues to serve as a
16 “benchmark against which the Court evaluates [the ALJ’s] reasoning”). This
17 Court agrees with the numerous district courts that found the treating source
18 rule is inconsistent with the SSA’s 2017 regulations, which effectively
19 displace or override it. See, e.g., Jones v. Saul, No. 2:19-cv-01273 AC, 2021
20 U.S. Dist. LEXIS 29751, at *27 (E.D. Cal. Feb. 16, 2021); Joseph Perry B. v.
21 Saul, No. SACV 20-1196-KS, 2021 U.S. Dist. LEXIS 59742, at *7 (C.D. Cal.
22 Mar. 29, 2021) (citing Brand X, 545 U.S. at 981-82). Accordingly, the Court
23 will address the ALJ’s evaluation of Dr. Tartaglione’s and Ms. Smallwood’s
24 opinions under the 2017 regulations. The Court notes that Plaintiff’s
25 arguments, although based on the treating source rule, are still capable of
26 analysis under the new regulations.
1 persuasiveness of medical source opinions by considering enumerated factors.
2 20 C.F.R. §§ 404.1520c(c)(1)-(5); 416.920c(c)(1)-(5). The “most important
3 factors” are consistency and supportability. Id. §§ 404.1520c(b)(2);
4 416.920c(b)(2). The ALJ is not required to explain how they consider the
5 remaining factors (the medical source’s relationship with the claimant,
6 specialization, or other factors) unless the ALJ finds that “two or more
7 medical opinions or prior administrative medical findings about the same
8 issue are both equally well supported . . . and consistent with the record . . .
9 but are not exactly the same.” See 20 C.F.R. §§ 404.1520c(b)(2-3);
10 416.920c(b)(2-3).
11 The revised regulations describe supportability as: “[t]he more relevant
12 the objective medical evidence and supporting explanations presented by a
13 medical source are to support his or her medical opinion(s) . . . , the more
14 persuasive the medical opinion(s) . . . will be.” 20 C.F.R. §§ 404.1520c(c)(1),
15 416.920c(c)(1). Consistency is described as: “[t]he more consistent a medical
16 opinion(s) . . . is with the evidence from other medical sources and
17 nonmedical sources in the claim, the more persuasive the medical opinion(s) .
18 . . will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).
19 a. Dr. Tartaglione
20 Dr. Tartaglione is a psychiatrist who began treating Plaintiff in
21 September 2017. (AR at 1330). On June 18, 2019, Dr. Tartaglione found
22 Plaintiff “has marked limitations and is not able to sustain work.” (MSJ at
23 15, AR at 1330-35). The ALJ found Dr. Tartaglione’s opinion had “no
24 significant persuasiveness,” in relevant part, because his treatment notes did
25 not support his own opinion. (AR at 27-28).
26 i. Supportability
1 the opinion. (MSJ at 15, Reply at 7). Defendant contends it is proper to find
2 an opinion less persuasive when clinical findings do not support the degree of
3 limitations found in an opinion. (Oppo. at 19).
4 Inconsistency between a physician’s treatment notes and their opinion
5 is an acceptable reason to discount the source’s opinion. See, e.g., Valentine v.
6 Comm’r Soc. Sec. Admin., 574 5.3d 685, 692-93 (9th Cir. 2009); Bayliss v.
7 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Jones v. Saul, No. 2:19-cv-
8 01273 AC, 2021 U.S. Dist. LEXIS 29751, at *29 (E.D. Cal. Feb. 16, 2021)
9 (holding in the context of the 2017 revised regulations, that the ALJ
10 reasonably found a treating physician’s opinion was not persuasive where it
11 was inconsistent with the doctor’s own treatment notes).
12 The ALJ specifically identified two inconsistencies within Dr.
13 Tartaglione’s treatment notes and his opinion. (AR at 28). First, the ALJ
14 explained that Dr. Tartaglone’s opinion was not supported by his October
15 2017 mental examination which found Plaintiff was alert and oriented times
16 three, had cooperative behavior, normal speech, articulate language, linear
17 thought process, appropriate associations, normal thought content, no
18 delusions, no suicidal ideation, no homicidal ideation, appropriate judgment
19 and insight, appropriate fund of knowledge, appropriate attention
20 span/concentration, and appropriate memory, with euthymic mood. (AR at
21 28, 720). Second, on June 18, 2019, Dr. Tartaglione found Plaintiff was
22 cooperative with normal speech, articulate language, linear thought process,
23 appropriate associations, normal thought content, no delusions, no suicidal
24 ideation, no homicidal ideation, was alert and oriented times three, had
25 appropriate judgment and insight, appropriate fund of knowledge,
26 appropriate attention span/concentration, and appropriate memory, with
1 The Court’s review of all of Dr. Tartaglione’s mental examination
2 notes reveals that during each examination he made mental
3 examination findings that were nearly identical to those referenced by
4 the ALJ. (See AR at 680-83, 715-22, 1202-05, 1209-16, 1224-35, 1244-
5 47). The treating notes referenced by the ALJ are fair examples of how
6 the opinion of this treating provider was insufficiently supported, rather
7 than inconsistencies read out of context, as Plaintiff implies. (Reply at
8 6-7). Accordingly, the Court finds that the ALJ properly determined Dr.
9 Tartaglione’s June 18, 2019 opinion was not supported by his own
10 treatment records.
11 ii. Consistency
12 Plaintiff next argues the ALJ errantly assessed Dr. Tartaglione’s
13 opinion because it is consistent with the opinions of Dr. DiFrancesca, Ph.D.,
14 Psychiatrist Dr. Watkins, Psychiatrist Dr. Peng, and Psychiatrist Stemen
15 who found Plaintiff has bipolar disorder with hypomania and one major
16 depressive episode and that she has difficulty communicating and getting
17 along with others.4 (See MSJ at 14-16, Reply at 2). Defendant counters that
18 the ALJ’s finding was consistent with the evidence from other sources.
19 (Oppo. at 20).
20 In support of her argument, Plaintiff cites her discharge summary from
21 Patton State Hospital, completed by Dr. Peng. (MSJ at 14). This summary
22 included a bipolar disorder diagnosis, but otherwise did not make the
23 findings Plaintiff describes. (See AR at 373-75). Plaintiff provides no
24

25
4 Plaintiff also argues that Psychotherapist Rhonda Smallwood, L.M.F.T.’s evaluation is
26 consistent with Dr. Tartaglione’s. (Reply at 2, AR at 733-38). However, as the Court
discusses below, the ALJ found “no significant persuasiveness” in Ms. Smallwood’s
1 argument explaining what the evaluations by Dr. Watkins and Psychiatrist
2 Stemen were or how they were consistent with Dr. Tartaglione’s opinion. The
3 Court is unable to identify any opinions or records by Dr. Watkins or Dr.
4 Stemen within the Administrative Record.
5 Katherine R. DiFrancesca, Ph.D., conducted a psychological evaluation
6 of Plaintiff on June 15, 1999. (AR at 91-95). Dr. DiFrancesca’s findings
7 include that Plaintiff has a bi-polar disorder with hypomania and has had at
8 least one major depressive episode, but otherwise do not include specific
9 findings regarding Plaintiff’s mental capacity. (AR at 91-94, MSJ at 14).
10 Based on the foregoing, the Court finds the sources highlighted by Plaintiff
11 are insufficient to disturb the ALJ’s finding that Dr. Tartaglione’s opinion
12 was not consistent with the overall evidence. See Mayes, 276 F.3d at 459
13 (“When the evidence can rationally be interpreted in more than one way, the
14 court must uphold the [ALJ’s] decision.”).
15 b. Ms. Smallwood
16 Plaintiff has been receiving therapy from Rhonda Smallwood, L.M.F.T.
17 since 2004. (AR at 733). Plaintiff argues that Ms. Smallwood’s evaluation
18 that Plaintiff’s episodes of major depression can last two to three months is
19 consistent with Dr. Tartaglione’s opinion. (Reply at 2, AR at 737). The ALJ
20 found “no significant persuasiveness” in Ms. Smallwood’s December 2017
21 opinion. (AR at 29, 733-38). Plaintiff appears to argue that the ALJ’s finding
22 was erroneous; however, Plaintiff raises this argument without specificity,
23 explaining only that Plaintiff saw Ms. Smallwood consistently and that Ms.
24 Smallwood was a specialist in mental health. (See MSJ at 16, Reply at 4).
25 The Court is not required to address issues raised without specificity. See
26 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir.
1 Even if Plaintiff had specifically raised the argument, the ALJ
2 appropriately addressed the mandatory factors of supportability and
3 consistency. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2) (2017); (AR at
4 29) (finding Ms. Smallwood’s records do not describe mental status
5 examination findings supporting her recommended limitations and that her
6 opinion is inconsistent with the overall medical record describing “generally
7 unremarkable findings”) (citing AR at 405-06, 436, 460, 483-84, 529, 720, 737,
8 1202-03, 1292-1310).
9 c. Specialization and Long-Term Treatment
10 Finally, Plaintiff argues the ALJ was required to address Dr.
11 Tartaglione and Ms. Smallwood as specialists in mental health and sources
12 with a long-term relationship with the claimant. (See Reply at 3). The ALJ
13 was only required to evaluate supportability and consistency because he did
14 not find two or more medical opinions or prior administrative medical
15 findings about the same issue to be equally well supported and consistent
16 with the record, but not exactly the same. (See AR at 27-29). As a result, the
17 ALJ did not err by omitting his reasoning regarding the factors of
18 specialization and relationship with the claimant as Plaintiff contends. See
19 20 C.F.R. § 416.920c(b)(2) (“We may, but are not required to, explain how we
20 considered the factors in paragraphs (c)(3) through (c)(5) of this section, as
21 appropriate, when we articulate how we consider medical opinions and prior
22 administrative medical findings in your case record.”). Based on the
23 foregoing, the ALJ sufficiently evaluated Dr. Tartaglione’s and Ms.
24 Smallwood’s opinions.
25 2. Mental RFC Determination
26 Plaintiff argues that the ALJ’s mental RFC determination was not
1 underdeveloped and lacks any meaningful analysis. (MSJ at 16-17, Reply at
2 5-6). Additionally, it is dependent on Plaintiff’s prior arguments that the ALJ
3 improperly addressed the medical opinions of Dr. Tartaglione and Ms.
4 Smallwood. The Court has already determined that the ALJ properly
5 assessed the medical opinion evidence. Therefore, Plaintiff has not
6 established that the ALJ’s mental RFC determination is unsupported by
7 substantial evidence. See Carmickle, 533 F.3d at 1161 n.2 (arguments raised
8 without specificity need not be addressed).
9 3. Plaintiff’s Subjective Symptom Testimony
10 Plaintiff makes several incoherent arguments regarding her subjective
11 symptom testimony and the RFC regarding her knee and hip disorder.5 (MSJ
12 at 17-23). The only clear argument is that the ALJ failed to provide sufficient
13 reasons to reject her testimony regarding her knee and hip limitations. (MSJ
14 at 21-22, Reply at 7-8). Plaintiff explains that she testified about her knee
15 and hip injuries and the pain that results when she exerts herself. (MSJ at
16 18, 20). Defendant counters that the ALJ “explicitly addressed Plaintiff’s
17 claims of disabling knee and hip-related pain and evaluated how Plaintiff’s
18 alleged pain impacted her functioning, if at all.” (Oppo. at 23).
19 At the administrative hearing, Plaintiff testified that she has pain in
20 her knees and hips as a result of being involved in five major motor accidents.
21 (AR at 57). Plaintiff testified that she can stand for about 15 minutes and
22
23
5 To the extent that Plaintiff argues the ALJ erred by discrediting Plaintiff’s subjective
24 symptom testimony about her mental limitations without clear and convincing reasons,
her argument fails. (See Reply at 7-8). Plaintiff contends her activities of daily living are
25 insufficient to reject her testimony. (MSJ at 16-17, Reply at 7). The argument is
underdeveloped, and in any event, the ALJ provided specific, clear, and convincing reasons
26 to reject her testimony. (AR at 21-22, 24) (comparing Plaintiff’s testimony with the
medical evidence of record and her daily activities and providing conclusions regarding the
1 can sit for about an hour, but experiences pain in her hips while sitting. (AR
2 at 59). She testified that she “was not able to do cleaning work . . . . After
3 these car accidents, I can’t take it anymore. I just can’t . . . . I cannot sit
4 down and clean and reach under things, I can’t do it.” (AR at 77).
5 The ALJ only referenced her knee and hip pain testimony by noting,
6 “She was on ibuprofen and said she now takes Tylenol 4,000 mg per day for
7 knee and hip pain.” (AR at 24). The ALJ then determined,
8 “After careful consideration of the evidence, I find that the
claimant’s medically determinable impairments could reasonably
9
be expected to cause the alleged symptoms; however, the
10 claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely consistent with
11
the medical evidence and other evidence in the record for the
12 reasons explained in this decision.”
13 (Id.).
14 The ALJ further stated,
15 “As for the claimant’s statements about the intensity, persistence,
and limiting effects of her symptoms, they are inconsistent
16
because objective findings are not remarkable, especially
17 physically, and include normal gait, normal back range of motion,
5/5 motor strength, intact sensation and deep tendon reflexes, no
18
edema, normal hip findings, full range of motion of all extremity
19 joints, and/or full range of motion of the right or right and left
knee joints. Exhibits 4F/2-3; 7F/29, 38, 56, 60; 8F/8; 14F/56, 66.”
20
(Id.).
21 “[W]here, as here, the ALJ ‘determines that a claimant for Social
22 Security benefits is not malingering and has provided objective medical
23 evidence of an underlying impairment which might reasonably produce the
24 pain or other symptoms she alleges, the ALJ may reject the claimant’s
25 testimony about the severity of those symptoms only by providing specific,
26 clear, and convincing reasons for doing so.’” Lambert v. Saul, 980 F.3d 1266,
1 (9th Cir. 2015)). “An ALJ does not provide specific, clear, and convincing
2 reasons for rejecting a claimant’s testimony by simply reciting the medical
3 evidence in support of his or her residual functional capacity determination.”
4 Brown-Hunter, 806 F.3d at 489. The ALJ is required to “specify which
5 testimony [he] finds not credible, and then provide clear and convincing
6 reasons, supported by evidence in the record, to support that credibility
7 determination.” Id. A “line-by-line exegesis of the claimant’s testimony” is
8 not required, but the ALJ must do more than offer “non-specific conclusions
9 that [the claimant’s] testimony was inconsistent with her medical treatment.”
10 Lambert, 980 F.3d at 1277.
11 The Court finds the ALJ erred by failing to specifically identify what
12 testimony about Plaintiff’s alleged knee and hip pain he found not credible.
13 The ALJ generically found that “the claimant’s statements concerning the
14 intensity, persistence and limiting effects of these symptoms are not entirely
15 consistent with the medical evidence and other evidence in the record for the
16 reasons explained in this decision.” (AR at 24). The Ninth Circuit has
17 repeatedly found this language to be insufficient and “boilerplate.” See
18 Lambert, 980 F.3d at 1277; Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d
19 1090, 1103 (9th Cir. 2014); see also Brown-Hunter, 806 F.3d at 493 (finding
20 the statement to be “conclusory” and that it “failed to identify specifically
21 which of Brown-Hunter’s statements she found not credible and why”). This
22 Court “cannot review whether the ALJ provided specific, clear, and
23 convincing reasons for rejecting [Plaintiff’s] pain testimony where, as here,
24 the ALJ never identified which testimony [he] found not credible, and never
25 explained which evidence contradicted that testimony.” Lambert, 980 F.3d at
26 1277 (quoting Brown-Hunter, 806 F.3d at 494); see also Vladimir B. v. Saul,
1 Cal. Jan. 29, 2021) (finding the ALJ erred by not adequately identifying the
2 statements or testimony he sought to discredit); Eldridge v. Berryhill, No.
3 17cv497-JLS (BLM), 2018 U.S. Dist. LEXIS 87985, at *22-23 (S.D. Cal. May
4 23, 2018) (“The ALJ’s vague references to Plaintiff's statements as
5 ‘allegations of disabling limitations’ are not specific identifications of which
6 statements are being discredited.”), adopted by Eldridge v. Berryhill, No. 17-
7 CV-497-JLS (BLM), 2018 U.S. Dist. LEXIS 113699, (S.D. Cal. July 9, 2018).
8 While the ALJ provided a detailed overview of Plaintiff’s medical
9 history, “providing a summary of medical evidence . . . is not the same as
10 providing clear and convincing reasons for finding the claimant’s symptom
11 testimony not credible.” Brown-Hunter, 806 F.3d at 494. The Court cannot
12 infer that the ALJ discredited Plaintiff’s testimony to the extent that it
13 conflicted with the medical evidence where the ALJ does not provide his
14 reasoning. Id. The Court agrees with Defendant that the ALJ identified
15 medical evidence that contradicts the degree of limitations Plaintiff alleged
16 regarding her hip and knee pain and functionality. (See Oppo. at 23-24).
17 While it would not be difficult to fill in the ALJ’s reasoning given his
18 description of the conflicting medical evidence, the ALJ is solely responsible
19 for making credibility determinations. Lambert, 980 F.3d at 1278 (citing
20 Brown-Hunter, 806 F.3d at 494) (“‘[T]he credibility determination is
21 exclusively the ALJ’s to make,’ and ‘[w]e are constrained to review the
22 reasons the ALJ asserts.’”); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir.
23 2014) (“We review only the reasons provided by the ALJ in the disability
24 determination and may not affirm the ALJ on a ground upon which he did
25 not rely.”). Accordingly, this Court lacks authority to fill in the ALJ’s
26 reasoning.
1 The Court must next consider whether the error was harmless. “An
2 error is harmless only if it is inconsequential to the ultimate nondisability
3 determination, or if despite the legal error, the agency’s path may reasonably
4 be discerned.” Brown-Hunter, 806 F.3d at 494 (citations and internal
5 quotation marks omitted).
6 Lambert, Brown-Hunter, and Treichler found errors based on failure to
7 provide “specific, clear, and convincing reasons” for rejecting Plaintiff’s
8 subjective symptom testimony not harmless. See Lambert, 980 F.3d at 1278;
9 Brown-Hunter, 806 F.3d at 494-95; Treichler, 775 F.3d at 1103. Similarly,
10 here, the ALJ did not identify what testimony from Plaintiff he found not
11 credible. The Court must find this error was not harmless “because it
12 precludes us from conducting a meaningful review of the ALJ’s reasoning.”
13 Brown-Hunter, 806 F.3d at 489.
14 Further, Plaintiff’s testimony that she “cannot sit down and clean and
15 reach under things,” continues to have pain in her knees and hips, “can sit
16 down for maybe an hour maximum” and “stand about 15 minutes” appears
17 inconsistent with the ALJ’s RFC determination that she could climb ramps
18 and stairs, balance, stoop, kneel, crouch, and crawl on a frequent basis. (AR
19 at 23, 57-60, 77). The ALJ’s adverse finding regarding the severity of
20 Plaintiff’s knee and hip pain was therefore not “inconsequential to the
21 ultimate nondisability determination.” Brown-Hunter, 806 F.3d at 494.
22 Accordingly, this Court recommends the District Court determine that
23 the ALJ’s failure to provide “specific, clear, and convincing reasons” for
24 rejecting Plaintiff’s testimony regarding her knee and hip limitations and
25 pain was legal error and the error was not harmless.
26 4. The ALJ’s Step Five Finding
Lastly, Plaintiff argues that the ALJ erred at step five by finding
1 Plaintiff not disabled under the Medical-Vocational Guidelines when the
2 ALJ’s RFC determination significantly reduced the range of medium work
3 Plaintiff could perform. (MSJ at 22-24).
4 Plaintiff’s argument lacks merit because the ALJ did not rely on the
5 Medical-Vocational Guidelines, commonly referred to as “the grids,” in
6 determining that Plaintiff was not disabled at step five. (AR at 31) (“The
7 vocational expert testified that given all of these factors the individual would
8 be able to perform the requirements of representative occupations . . .”).
9 Instead, the ALJ appropriately relied on VE testimony that a hypothetical
10 individual with Plaintiff’s RFC and subject to the relevant additional
11 postural, environmental, and mental limitations, would be capable of
12 performing the representative occupations identified at step five. See
13 generally, Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (“The
14 Commissioner can meet this burden [of establishing that the claimant can
15 perform a significant number of other jobs in the national economy] through
16 the testimony of a vocational expert or by reference to the Medical-Vocational
17 Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.”).
18 III. REMAND FOR FURTHER PROCEEDINGS
19 The law is well established that the decision whether to remand for
20 further proceedings or simply to award benefits is within the discretion of the
21 Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990);
22 McCallister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); Lewin v.
23 Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand for further
24 proceedings is warranted where additional administrative proceedings could
25 remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497
26 (9th Cir. 1984); Lewin, 654 F.2d at 635. When error exists in an
administrative determination, “the proper course, except in rare
1 ||circumstances, is to remand to the agency for additional investigation or
9 ||exploration.” INS v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotation
3 ||marks omitted); Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004).
4 || Accordingly, this case should be remanded for further administrative action
5 ||consistent with the findings presented herein.
6 IV. CONCLUSION
7 Based on the foregoing, the Court RECOMMENDS that the District
g Court GRANT Plaintiff's motion for summary judgment, DENY Defendant’s
9 ||cross-motion for summary judgment, and REMAND this case for further
10 |}administrative action consistent with the findings presented herein. This
11 || Report and Recommendation of the undersigned Magistrate Judge is
12 ||submitted to the United States District Judge assigned to this case, pursuant
13 ||to the provisions of 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c) of the
14 || United States District Court for the Southern District of California.
15 IT IS HEREBY ORDERED that any written objection to this report
16 || must be filed with the Court and served on all parties no later than
17 || November 9, 2021. The document should be captioned “Objections to Report
18 ||and Recommendation.”
19 IT IS FURTHER ORDERED that any reply to the objections shall be
90 || filed with the Court and served on all parties no later than November 16,
91 2021. The parties are advised that failure to file objections within the
992 ||specified time may waive the right to raise those objections on appeal of the
93 ||Court’s order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).
24 IT IS SO ORDERED.
Dated: October 26, 2021 tlh | [
Hon. Mitchell D. Dembin
27 United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10084674. Public record. Not legal advice.