transferable 9 work skills are “the second ground for using daily activities in credibility 10 determinations.”
How later courts described this case
- transferable 9 work skills are “the second ground for using daily activities in credibility 10 determinations.”
- making finding contrary to 23 medical opinion constitutes rejection of opinion
- rejecting medical opinion effectively removes it 22 from record
- somatic symptom disorder manifests as physical symptoms, 4 so objective evidence is relevant
Written by the judges who cited it.
The opinion
1
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7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 KATIE E. B., Case No.: 20cv2354-MDD
12 Plaintiff,
ORDER RESOLVING JOINT
13 v. MOTION FOR JUDICIAL REVIEW
IN FAVOR OF PLAINTIFF AND
14
KILOLO KIJAKAZI,1 Acting REMANDING TO THE
15 Commissioner of Social Security, COMMISSIONER
16 Defendant.
[ECF No. 15]
17
18 Katie E. B. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g)
19 for judicial review of the final administrative decision of the Commissioner of
20 the Social Security Administration (“Commissioner”) denying Plaintiff’s
21 applications for a period of disability and disability insurance benefits and for
22 supplemental security income under Titles II and XVI of the Social Security
23
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 Act (“Act”). (ECF No. 1; AR at 21, 42).2 On June 7, 2022, the parties filed a
2 Joint Motion for Judicial Review of the Administrative Law Judge’s (“ALJ’s”)
3 decision. (ECF No. 15).
4 For the reasons herein, the Joint Motion for Judicial Review is
5 GRANTED in favor of Plaintiff. The Court REVERSES the decision of the
6 Commissioner denying benefits and REMANDS the matter to the
7 Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further
8 administrative action consistent with the findings presented herein.
9 I. BACKGROUND
10 A. Procedural History
11 Plaintiff alleges a disability beginning on November 20, 2017. (AR at
12 392, 399). Plaintiff’s claims were denied initially on November 1, 2018, and
13 upon reconsideration on June 11, 2019. (AR at 248, 268, 295, 319-20).
14 Plaintiff filed a written request for a hearing on August 5, 2019. (AR at 337-
15 38).
16 An administrative hearing was held by telephone on May 29, 2020. (AR
17 at 183-228). Plaintiff appeared and was represented by attorney Devin
18 DeLoa. (AR at 185). Testimony was taken from Plaintiff and Connie
19 Guillory, an impartial vocational expert (“VE”). (See AR at 183-228). On
20 July 2, 2020, the ALJ issued a decision denying Plaintiff’s claims. (AR at 18-
21 49).
22 On August 18, 2020, Plaintiff filed a request for review with the
23 Appeals Council. (AR at 8-10). On October 6, 2020, the Appeals Council
24 denied the request for review and declared the ALJ’s decision to be the final
25
26
2 “AR” refers to the Certified Administrative Record filed on December 15, 2021. (ECF No.
1 decision of the Commissioner in Plaintiff’s case. (AR at 1). This timely civil
2 action followed.
3 II. DISCUSSION
4 A. Legal Standard
5 Sections 405(g) and 1383(c)(3) of the Act allow unsuccessful applicants
6 to seek judicial review of a final agency decision of the Commissioner. 42
7 U.S.C. §§ 405(g), 1383(c)(3). The scope of judicial review is limited in that a
8 denial of benefits will not be disturbed if it is supported by substantial
9 evidence and contains no legal error. Id.; see also Batson v. Comm’r Soc. Sec.
10 Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
11 Substantial evidence “is a ‘term of art’ used throughout administrative
12 law to describe how courts are to review agency factfinding.” Biestek v.
13 Berryhill, 139 S. Ct. 1148, 1154 (2019). Courts look “to an existing
14 administrative record and ask[] whether it contains ‘sufficien[t] evidence’ to
15 support the agency’s factual determinations.” Id. “[T]he threshold for such
16 evidentiary sufficiency is not high. Substantial evidence, [the Supreme
17 Court] has said, is ‘more than a mere scintilla.’ It means—and means only—
18 ‘such relevant evidence as a reasonable mind might accept as adequate to
19 support a conclusion.’” Id. The Ninth Circuit explains that substantial
20 evidence is “more than a mere scintilla but may be less than a
21 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012)
22 (quotation marks and citations omitted), superseded by regulation on other
23 grounds.
24 An ALJ’s decision is reversed only if it “was not supported by
25 substantial evidence in the record as a whole or if the ALJ applied the wrong
26 legal standard.” Id. “To determine whether substantial evidence supports
1 the evidence both supporting and detracting from the agency’s conclusion.”
2 Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citing Mayes v.
3 Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The Court “may not reweigh
4 the evidence or substitute [its] judgment for that of the ALJ.” Id. “The ALJ
5 is responsible for determining credibility, resolving conflicts in medical
6 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035,
7 1039 (9th Cir. 1995). “When the evidence can rationally be interpreted in
8 more than one way, the court must uphold the [ALJ’s] decision.” Mayes, 276
9 F.3d at 459.
10 Section 405(g) permits a court to enter a judgment affirming, modifying
11 or reversing the Commissioner’s decision. 42 U.S.C. § 405(g). The reviewing
12 court may also remand the matter to the Social Security Administration for
13 further proceedings. Id.
14 B. Summary of the ALJ’s Findings
15 In rendering his decision, the ALJ followed the Commissioner’s five-step
16 sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. At step
17 one, the ALJ found that Plaintiff had not engaged in substantial gainful
18 activity since November 20, 2017. (AR at 24).
19 At step two, the ALJ found that Plaintiff had the following severe
20 impairments: “hypermobile Ehlers-Danlos Syndrome; hyperadrenergic
21 postural orthostatic tachycardia/POTS; medial meniscus tear of left knee;
22 endometriosis; depressive disorder; post-traumatic stress disorder (PTSD);
23 anxiety disorder; insomnia; attention deficit hyperactivity disorder (ADHD).”
24 (AR at 24-26). The ALJ determined “the medically determinable
25 impairments of eosinophilic esophagitis, GERD, bilateral carpal tunnel
26 syndrome, mild degenerative disc disease (DDD) of the lumbar, thoracic and
1 appendiceal neoplasm do not significantly limit the claimant’s basic work
2 activities.” (Id.).
3 At step three, the ALJ found that Plaintiff did not have an impairment
4 or combination of impairments that met or medically equaled one of the
5 impairments listed in the Commissioner’s Listing of Impairments. (AR at 26-
6 28).
7 Next, after considering the entire record, the ALJ determined that
8 Plaintiff had the residual functional capacity (“RFC”) to perform
9 sedentary work with the following limitations:
10 The claimant must avoid concentrated exposure to extreme cold, to
extreme heat, to wetness, to humidity, to vibration, to fumes, odors,
11
gases and other pulmonary irritants, and to hazards such as
12 operational control of moving machinery and unprotected heights.
In addition, the claimant is limited to understanding,
13
remembering, and carrying out simple, routine tasks, only
14 occasional interaction with the general public. The individual
would require the use of a walker to ambulate any distance greater
15
than 10 feet.
16 (AR at 28).
17 The ALJ stated that his RFC assessment was based on all the
18 evidence and the extent to which Plaintiff’s symptoms could reasonably
19 be accepted as consistent with the objective medical evidence and other
20 evidence. (Id.). The ALJ also stated that he considered the opinion
21 evidence in accordance with the requirements of 20 C.F.R. §§ 404.1520c
22 and 416.920c. (Id.).
23 The ALJ then proceeded to step four of the sequential evaluation
24 process. He found Plaintiff was unable to perform her past relevant work.
25 (AR at 40). The ALJ classified Plaintiff as a younger individual because she
26 was 28 years old on the alleged disability onset date. (Id.) (citing 20 C.F.R. §§
1 step five determination, the ALJ accepted the testimony of the VE. (AR at
2 41-42). The VE identified the jobs of inspector (DOT 669.687-014); sealer
3 (DOT 559.687-014); and stim mounter (DOT 725.684-018) as representative
4 jobs Plaintiff could perform, and which exist in significant numbers in the
5 national economy. (AR at 41). The ALJ therefore found that Plaintiff was
6 not disabled. (AR at 42).
7 C. Issues in Dispute
8 The issues in dispute are (1) whether the ALJ harmfully erred by failing
9 to consider Plaintiff’s somatic symptom disorder; (2) whether the ALJ
10 properly evaluated Plaintiff’s subjective symptom testimony; (3) whether the
11 ALJ properly formulated the RFC where all of the medical opinions were
12 rejected; and (4) whether the ALJ sufficiently incorporated limitations
13 related to Plaintiff’s migraines and carpal tunnel syndrome in the RFC.3
14 1. Somatic Symptom Disorder
15 Plaintiff argues that the ALJ erred by failing to mention or discuss her
16 somatic symptom disorder. (ECF No. 15 at 16). Plaintiff contends a somatic
17 symptom disorder impairment is established overtly through diagnosis, as
18 well as impliedly through both her medical record of numerous tests that fail
19 to return diagnoses and her hearing testimony which demonstrates
20 preoccupation with having or acquiring a serious medical condition. (ECF
21 No. 15 at 16, 20). Plaintiff argues this was harmful error because it affected
22 the ALJ’s consideration of the medical evidence and Plaintiff’s symptom
23 testimony, the RFC determination, and the ALJ’s ultimate non-disability
24
25
26 3 The numbering of issues has been changed from the parties’ Joint Motion for Judicial
Review (ECF No. 15 at 3) to reflect the sequence in which the issues are discussed in this
1 finding. (ECF No. 15 at 20).
2 The Commissioner argues the ALJ considered Plaintiff’s reports of pain,
3 fatigue, and weakness and accounted for attendant limitations in Plaintiff’s
4 RFC. (Id.). The Commissioner further argues Plaintiff linked her alleged
5 symptoms to Ehlers Danlos Syndrome, which the ALJ found to be a severe
6 impairment. (Id.). Therefore, the Commissioner contends any error was
7 harmless. (Id.).
8 a. Discussion of Somatic Symptom Disorder at Step Two
9 Step two of the ALJ’s analysis, meant only to dispose of groundless
10 claims, imposes a de minimis standard for establishing medically
11 determinable impairments (“MDIs”). Smolen v. Chater, 80 F.3d 1273, 1290
12 (9th Cir. 1996). MDIs are established by “anatomical, physiological, or
13 psychological abnormalities” demonstrated via objective medical evidence. 20
14 C.F.R. §§ 404.1521, 416.921. While a claimant’s statements and medical
15 sources’ diagnoses are not sufficient to establish an MDI, diagnoses can be
16 sufficient to mandate discussion of an impairment at step two. See id.; Dunn
17 v. Colvin, No. 13-CV-05088 JRC, 2014 WL 1053273, at *3 (W.D. Wash. Mar.
18 19, 2014) (finding that single diagnosis of a hypochondriasis disorder
19 mandated discussion at step two).
20 Disorders such as “somatic symptom disorder, illness anxiety disorder,
21 and conversion disorder” are grouped together under the listing of “somatic
22 symptom and related disorders” within the Commissioner’s Listing of
23 Impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §12.00(B)(6)(a). The signs
24 and symptoms of somatic symptom and related disorders include “pain and
25 other abnormalities of sensation, gastrointestinal symptoms, fatigue, a high
26 level of anxiety about personal health status, abnormal motor movement,
1 deafness.” Id. These symptoms are “not intentionally produced or feigned”
2 and “cannot be fully explained by a general medical condition [or] another
3 mental disorder.” Id.
4 The Court’s review of the record reveals one definitive diagnosis of
5 “somatoform disorder, unspecified” by Dr. Jeffrey Cullen and two suspected
6 diagnoses of “conversion disorder” by Drs. Sara Siavoshi and Kaitlin
7 McIntyre. (AR at 674, 1162, 2200, 3228). Yet the ALJ’s decision failed to
8 mention somatic symptom or related disorders at any point, despite citing to
9 the page on which Dr. Cullen diagnoses a somatoform disorder, and to the
10 March 6, 2018 visit notes in which Dr. Siavoshi’s assessment states, “I do
11 suspect conversion disorder.” (AR at 30) (citing AR at 674, 1158, 1161).
12 Plaintiff’s record includes a multitude of objective indications of “pain and
13 other abnormalities of sensation,” “high level of anxiety about personal
14 health status,” and “abnormal motor movement,” among other signs and
15 symptoms associated with somatic symptom disorder. (See, e.g., AR at 674,
16 678, 794, 799, 805, 818, 831, 1313, 2200, 2334, 3228).
17 Alternative explanations for these symptoms might exist. The
18 Commissioner notes, for instance, that Plaintiff “appears to link these alleged
19 symptoms to Ehlers Danlos Syndrome” rather than somatic symptom
20 disorder. (ECF No. 15 at 20). It is possible the ALJ interpreted the record as
21 such, but the Court will not “affirm the ALJ on a ground upon which he did
22 not rely.” See Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
23 The Court finds that the evidence on the record warranted discussion of
24 whether somatic symptom disorder is a medically determinable impairment
25 at step two. The ALJ should have explained whether Plaintiff has a
26 medically determinable impairment of somatic symptom disorder, and if so,
1 MAT, 2019 WL 2616594, at *3 (W.D. Wash. June 26, 2019); Adila B. v.
2 Kijakazi, No. 4:20-cv-5171-EFS, 2022 U.S. Dist. LEXIS 33607, at *18-19
3 (E.D. Wash. Feb. 25, 2022). The ALJ’s failure to do so was error.
4 The Court further concludes this error was not harmless. “An error is
5 harmless only if it is inconsequential to the ultimate nondisability
6 determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).
7 [S]omatic symptom and other disorders can serve to give credence
to alleged symptoms that would be otherwise rejected as
8
unsubstantiated and/or as malingering; the very nature of this
9 group of disorders means that if a genuine case is overlooked as a
medically determinable impairment at step two, then the ALJ is
10
unlikely to account for the corresponding symptoms at any of the
11 later stages of the disability analysis.
12 Adila B., 2022 U.S. Dist. LEXIS 33607, at *18-19; see also John A., 2019 WL
13 2616594, at *3 (failure to identify or discuss somatic symptom disorder at
14 step two was not harmless because it “impacted the subsequent consideration
15 of the medical evidence, plaintiff’s symptom testimony, the RFC assessment,
16 and the ultimate decision of non-disability”).
17 Accordingly, the Court finds that the ALJ’s failure to discuss whether
18 Plaintiff has an MDI of somatic symptom disorder was not harmless error
19 and requires remand. In particular, the ALJ did not discuss somatic
20 symptom disorder as an alternative explanation for contradictions between
21 Plaintiff’s subjective symptom testimony and the objective medical evidence,
22 as discussed below. Because Plaintiff separately argues that the ALJ erred
23 in evaluating Plaintiff’s subjective symptom testimony and RFC, the Court
24 further addresses Plaintiff’s somatic symptom disorder within the context of
25 those issues.
26
1 2. Subjective Symptom Testimony
2 Plaintiff argues that the ALJ erred by failing to give clear and
3 convincing reasons for rejecting her subjective symptom testimony. (ECF No.
4 15 at 23). She contends that inconsistency between a patient’s complaints
5 and the objective medical evidence matches the expected presentation of
6 somatic symptom disorder. (Id.). Plaintiff therefore argues that the absence
7 of any discussion of somatic symptom disorder in the ALJ’s decision renders
8 the ALJ’s evaluation of Plaintiff’s subjective symptom testimony unsupported
9 by clear and convincing evidence. (Id.). The Commissioner counters that
10 substantial evidence supports the ALJ’s evaluation of Plaintiff’s subjective
11 symptom testimony. (Id. at 20-21).
12 a. Subjective Symptom Testimony Evaluation Process
13 ALJs evaluate a claimant’s subjective symptom testimony at step three,
14 guiding their subsequent consideration of the claimant’s testimony in making
15 their RFC determination. See §§ 20 C.F.R. 404.1529(d)(4), 416.929(d)(4).
16 ALJs assess a claimant’s subjective statements regarding their symptoms
17 and limitations in two parts. §§ 404.1529(a), 416.929(a). First, an ALJ must
18 determine whether the claimant’s MDIs “could reasonably be expected to
19 produce the pain or other symptoms alleged.” Id. The ALJ then assesses to
20 what extent the claimant’s statements concerning the intensity, persistence,
21 and limiting effects of these symptoms are consistent with the record. Id.
22 This assessment considers “all of the available evidence,” divided into
23 “objective medical evidence” and “other evidence.” §§ 404.1529(c), 416.929(c).
24 Objective medical evidence is “evidence obtained from the application of
25 medically acceptable clinical and laboratory diagnostic techniques.” §§
26 404.1529(c)(2), 416.929(c)(2). “Other evidence” includes information from
1 characteristics of the alleged symptoms, and treatment received to relieve the
2 alleged symptoms. §§ 404.1529(c)(3), 416.929(c)(3).
3 Where an ALJ does not determine that a claimant is malingering, a
4 claimant’s subjective symptom testimony can be found inconsistent only for
5 “specific, clear and convincing” reasons. Treichler v. Comm’r of Soc. Sec.
6 Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citing Smolen, 80 F.3d at 1281).
7 “This is not an easy requirement to meet: ‘The clear and convincing standard
8 is the most demanding required in Social Security cases.’” Garrison, 759 F.3d
9 at 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th
10 Cir. 2002).
11 Here, the ALJ determined that Plaintiff’s MDIs could reasonably be
12 expected to cause the alleged symptoms. (AR at 29). He then found that
13 Plaintiff’s “statements concerning the intensity, persistence and limiting
14 effects of these symptoms [were] not entirely consistent” with the record.
15 (Id.). The ALJ did not determine that Plaintiff was malingering, so Plaintiff’s
16 testimony could be found inconsistent only for “specific, clear and convincing”
17 reasons. See Treichler, 775 F.3d at 1102 (citing Smolen, 80 F.3d at 1281). In
18 making his assessment, the ALJ relied largely on objective medical evidence,
19 i.e., a battery of normal test results which contradicted Plaintiff’s complaints.
20 (AR at 29-30). The ALJ also considered “other evidence,” i.e., information
21 from a medical source and information about Plaintiff’s daily activities. (AR
22 at 30). The Court considers each category to determine whether the ALJ
23 offered clear and convincing evidence for rejecting Plaintiff’s subjective
24 symptom testimony.
25 b. Objective Medical Evidence
26 The ALJ relied in part on the contradictions between Plaintiff’s
1 her statements regarding her symptoms were not entirely consistent with the
2 record. (AR at 29-30). Plaintiff contends her somatic symptom disorder
3 causes significant symptoms that the ALJ overlooked. (ECF No. 15 at 18-19,
4 21). There is notable overlap between the symptom testimony the ALJ
5 rejected as unsupported and symptoms associated with somatic symptom
6 disorder. Compare AR at 29-30 (rejecting complaints of abnormal motor
7 movement, “gastrointestinal issues, fatigue and weakness, brain fog, and
8 pain” as unsupported) with 20 C.F.R. Pt. 404, Subpt. P, App. 1,
9 §12.00(B)(6)(a) (“pain…other abnormalities of sensation, gastrointestinal
10 symptoms, fatigue…abnormal motor movement [and] pseudoneurological
11 symptoms” among symptoms of somatic symptom disorder). Had the ALJ
12 considered somatic symptom disorder at step two and found it to be an MDI,
13 he would have been required to consider Plaintiff’s subjective symptom
14 testimony in the context of her somatic symptom disorder. Elliot G. v.
15 Kijakazi, No. 1:20-cv-1701-SI, 2022 WL 910055, at *9 (D. Or. Mar. 29, 2022)
16 (“ALJ erred in failing to address Plaintiff’s somatic symptom disorder in
17 considering his subjective symptom testimony.”).
18 Moreover, a lack of objective evidence supporting Plaintiff’s claims of
19 pain or symptoms may support rather than undermine a claim of disability
20 where somatic symptom disorder is an MDI. See Scott M. S. v. Comm’r of
21 Soc. Sec. Admin., No. 3:19-cv-00812-JR, 2020 WL 1043444, at *3 (D. Or. Mar.
22 4, 2020) (“Thus, although the ALJ is correct that a disparity existed between
23 plaintiff’s presentation/physical complaints and certain portions of the
24 medical record, that disparity was itself part of plaintiff’s medical
25 condition.”); John A., 2019 WL 2616594, at *3 (ALJ erred when, “[r]ather
26 than considering limitations associated with a somatic symptom disorder, the
1 rejecting plaintiff’s testimony as to the intensity, persistence, and limiting
2 effects of his symptoms.”). But see Marovich v. Colvin, 554 F. App’x 591, 592
3 (9th Cir. 2016) (somatic symptom disorder manifests as physical symptoms,
4 so objective evidence is relevant).
5 Here, the ALJ did not address somatic symptom disorder as a possible
6 explanation for the contradictions which he relies on to discredit Plaintiff’s
7 subjective symptom testimony. Instead, he highlights the contradictions to
8 support his conclusion that the intensity, persistence, and limiting effects of
9 the symptoms Plaintiff alleges are unsupported by the medical evidence. (See
10 AR at 29-30). While the testimony of claimants with somatic symptom
11 disorder or a related impairment need not be accepted uncritically, the ALJ
12 must address the “material possibility” that discrepancies in such cases are
13 “evidence of impairment, as opposed to evidence of malingering or
14 exaggeration for secondary gain.” Reyes v. Colvin, No. 2:15-CV-08726 (VEB),
15 2016 WL 6651259, at *5 (C.D. Cal. Nov. 9, 2016). Because the ALJ did not
16 discuss somatic symptom disorder in his decision, the Court cannot conclude
17 that he addressed the material possibility that the identified discrepancies
18 can be attributed to somatic symptom disorder. Accordingly, the Court
19 cannot find that ALJ provided clear and convincing reasons for rejecting
20 Plaintiff’s subjective symptom testimony as inconsistent with the objective
21 medical evidence.
22 Where the remaining evidence used to support the ALJ’s assessment of
23 Plaintiff’s subjective symptom testimony is independently clear and
24 convincing, remand is not required. See, e.g., Downton v. Astrue, No.
25 08CV2154DMS (CAB), 2009 WL 3711992, at *6 (S.D. Cal. Nov. 4, 2009)
26 (remand unnecessary where reasons independent of objective evidence
1 No. 6:12-CV-00084-SI, 2013 WL 1296071, at *5 (D. Or. Mar. 28, 2013) (same).
2 Therefore, the Court next considers the ALJ’s treatment of “other evidence.”
3 c. Other Evidence
4 Aside from the objective medical evidence, the ALJ relied on an
5 occupational therapy evaluation and a selection of Plaintiff’s statements
6 regarding her daily activities and limitations in evaluating the consistency of
7 Plaintiff’s subjective symptom testimony. (AR at 29-30). A claimant’s daily
8 activities may support finding a claimant’s subjective testimony inconsistent
9 with the record where they either “contradict other testimony” or “meet the
10 threshold for transferable work skills.” Orn v. Astrue, 495 F.3d 625, 639 (9th
11 Cir. 2007).
12 The ALJ first relied on a statement from Occupational Therapist
13 Caitlin Muir’s evaluation that Plaintiff is “0% impaired” in her daily
14 activities. (See AR at 30). The statement was a test result on the Boston
15 AM-PAC, a standardized occupational therapy examination. (AR at 2362).
16 The remark was not a subjective statement regarding a patient’s actual level
17 of impairment. (Id. at 2359). Instead, that test examined a subject’s ability
18 to get dressed, eat meals, bathe, use the toilet, and perform basic physical
19 hygiene. (Id.). Muir’s statement did not satisfy either of the Orn
20 requirements. In terms of contradicting other testimony, the ALJ placed the
21 statement in opposition to a general claim that Plaintiff “reported limited
22 ability to do various activities of daily living in the Function Report.” (Id. at
23 30).
24 Plaintiff’s AM-PAC result revealed that she can accomplish these tasks
25 without assistance, not without difficulty. (Id. at 2359). The only daily
26 activities that Plaintiff alleged she cannot complete without assistance were
1 laundry. (Id. at 461, 469). No analogous activities were tested as part of the
2 AM-PAC. (Id. at 2359). In the same evaluation, Muir stated that Plaintiff
3 exhibited a “slow gait with standing rest breaks” and appeared “fatigued”
4 during the examination, lying down immediately upon completion. (Id. at
5 2361). This supports rather than contradicts Plaintiff’s Function Report
6 statements regarding the severity of her alleged symptoms. (Id. at 2362).
7 The ALJ never asserted that the evaluation spoke to Plaintiff’s transferable
8 work skills, nor did it purport to do so. See Orn, 495 F.3d at 639 (transferable
9 work skills are “the second ground for using daily activities in credibility
10 determinations.”). Because Muir’s evaluation established neither a
11 contradiction with Plaintiff’s testimony nor transferable work skills, it was
12 not a valid basis for the ALJ to find Plaintiff’s subjective symptom testimony
13 inconsistent with the “other evidence” in the record.
14 The ALJ further stated that Plaintiff’s statements that she can perform
15 daily tasks around the home “on her own schedule” and can use public
16 transportation contradict her Function Report. (AR at 30) (citing AR at
17 2170). As explained above, Plaintiff’s Function Report lists only three tasks
18 she cannot perform alone, none of which are sufficiently general or regular to
19 contradict the statement that with “some difficulty [and] on her own schedule
20 and timing she can undertake and perform general daily tasks and activities
21 around the home.” (AR at 2170). Plaintiff’s Function Report simply said that
22 “right now,” taking the bus was not bearable. Six months later she states
23 that she could use public transportation. (Id. at 469, 2170). Minor shifts in a
24 claimant’s limitations over time are not evidence of inconsistency. See Lester
25 v. Chater, 81 F.3d 821, 833 (9th Cir. 1995), as amended (Apr. 9, 1996) (citing
26 Leidler v. Sullivan, 885 F.2d 291, 292 n.3 (5th Cir. 1989)). That statement
1 Regarding work skills, the Ninth Circuit has explained that “many
2 home activities are not easily transferable to what may be the more grueling
3 environment of the workplace, where it might be impossible to periodically
4 rest or take medication.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
5 Evidence that Plaintiff can perform daily activities only “on her own
6 schedule” (AR at 30) demonstrates that her daily activities are likely not
7 “transferable work skills.” See Fair, 885 F.2d at 603; Orn, 495 F.3d at 639.
8 While the ability to take public transportation might establish that Plaintiff
9 could get to a job, it does not establish what she could do once there.
10 Plaintiff’s general ability to perform daily activities and ability to use public
11 transportation are not a basis for finding Plaintiff’s testimony inconsistent.
12 See Lopez v. Colvin, 194 F. Supp. 3d 903, 912 (D. Ariz. 2016).
13 To support his finding that Plaintiff’s testimony is inconsistent with the
14 record, the ALJ also relied on Plaintiff’s statements that she lives alone
15 without in-home health care, recently traveled to Indiana for her father’s
16 funeral, and can get herself to medical appointments. (AR at 30). The ALJ
17 found it contradictory that Plaintiff can do these things “despite her severe
18 symptoms.” (Id.). Plaintiff flew to Indiana twice: in June of 2019 to visit her
19 gravely ill father and in October of 2019 to attend his funeral. (Id. at 206-07).
20 The ALJ omitted Plaintiff’s testimony that she required wheelchair
21 assistance getting through the airport and used “lots of medication and
22 muscle relaxers” to make it through the flights. (Id. at 206). The ALJ did not
23 specify how this travel undermines Plaintiff’s allegations of severe symptoms.
24 (Id. at 30). See Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)
25 (“The ALJ must specifically identify the testimony she or he finds not to be
26 credible and must explain what evidence undermines the testimony.”). The
1 under medication call Plaintiff’s credibility into question. See, e.g., Milton v.
2 Comm’r of Soc. Sec., No. 6:16-CV-01902-YY, 2018 WL 1788077, at *5 (D. Or.
3 Mar. 26, 2018), report and recommendation adopted sub nom. Milton v.
4 Berryhill, No. 6:16-CV-1902-YY, 2018 WL 1787184 (D. Or. Apr. 13, 2018).
5 Finally, neither Plaintiff living alone nor her ability to get herself to
6 medical appointments sufficiently contradict her alleged symptoms. Living
7 alone is consistent with the tasks Plaintiff says she cannot perform
8 independently in her Function Report. The capacity to live alone and to get
9 to medical appointments is not a transferable work skill. See Fair, 885 F.2d
10 at 603; Orn, 495 F.3d at 639. Plaintiff’s flights, living alone, and attendance
11 at medical appointments do not support the ALJ’s evaluation that Plaintiff’s
12 subjective symptom testimony was inconsistent with the record. (AR at 29).
13 The “other evidence” the ALJ relied on is, therefore, also insufficient to
14 meet the clear and convincing standard. Accordingly, the ALJ’s finding that
15 Plaintiff’s statements regarding the intensity, persistence, and limiting
16 effects of her symptoms and level of limitation were not entirely consistent
17 with the record is not supported by specific, clear, and convincing reasons.
18 See Garrison, 759 F.3d at 1016. Remand is necessary for the ALJ to consider
19 whether somatic symptom disorder is an MDI, and, if so, how it may affect
20 the evaluation of Plaintiff’s subjective symptom testimony.
21 3. RFC Determination
22 Plaintiff also argues that the ALJ’s RFC determination is not supported
23 by substantial evidence because it was formulated without the support of a
24 medical opinion and was therefore an impermissible independent
25 interpretation of “raw medical data” into functional limitations. (ECF No. 15
26 at 4, 10 (citing Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)). The
1 that an ALJ therefore need not rely on a medical opinion in making their
2 assessment. (ECF No. 15 at 6).
3 A claimant’s RFC is determined by the ALJ and describes the most a
4 claimant can do despite the limitations resulting from their impairments. 20
5 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The RFC determination considers all
6 MDIs, severe or not severe, and all relevant evidence on the record, including
7 medical opinions from medical sources. §§ 404.1545(a)(2)-(3), 416.945(a)(2)-
8 (3). Medical opinions are statements from medical sources about a claimant’s
9 abilities and limitations related to the workplace and resulting from an
10 impairment. 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2).
11 ALJs must analyze the persuasiveness of each medical source who
12 provides one or more medical opinions based on the factors of “supportability”
13 and “consistency.” §§ 404.1520c, 416.920c. An ALJ may find any medical
14 opinion that they determine to be unsupported or inconsistent to be not
15 persuasive. See §§ 404.1520c(a)-(c), 416.920c(a)-(c). Courts equate finding a
16 medical source “not persuasive” with rejecting any medical opinions from the
17 source. See, e.g., Woods v. Kijakazi, 32 F.4th 785, 792-94 (9th Cir. 2022);
18 Steven R. T. v. Kijakazi, No. 20-CV-2257-KSC, 2022 WL 2303950, at *12 (S.
19 D. Cal. June 24, 2022). A medical opinion rejected by an ALJ cannot support
20 the ALJ’s RFC determination. See de Lopez v. Astrue, 643 F. Supp. 2d 1178,
21 1183-84 (C.D. Cal. 2009) (rejecting medical opinion effectively removes it
22 from record); see also Smolen, 80 F.3d at 1286 (making finding contrary to
23 medical opinion constitutes rejection of opinion).
24 The absence of support from a medical opinion is “not necessarily fatal”
25 to an ALJ’s RFC determination, but does open the door to impermissible
26 independent interpretation of medical evidence into functional limitations.
1 Cal. Oct. 31, 2017). As a layperson, an ALJ is not qualified to extrapolate
2 functional limitations from “raw medical data” but may make reasonable
3 inferences from medical evidence susceptible to a lay understanding. See
4 Padilla v. Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal. 2008) (ALJ not
5 qualified to extrapolate functional limitations from raw medical data);
6 Escudero v. Comm’r of Soc. Sec., No. 1:18-CV-01136-EPG, 2019 WL 4917634,
7 at *2 (E.D. Cal. Oct. 4, 2019) (ALJ may not interpret evidence “not
8 susceptible to a lay understanding”). “Raw medical data” is evidence from
9 which a layperson could not reasonably infer limitations, including diagnoses,
10 test results, X-rays, and MRIs. See Howell v. Kijakazi, No. 20-CV-2517-BLM,
11 2022 WL 2759090, at *7 (S.D. Cal. July 14, 2022) (citing Escudero, 2019 WL
12 4917634, at *2; Mack v. Saul, No. 1:18-CV-01287-DAD-BAM, 2020 WL
13 2731032, at *2 (E.D. Cal. May 26, 2020)).
14 Here, the ALJ found one medical source, the State agency psychological
15 consultants, “partially persuasive.” (AR at 37). He found all other medical
16 sources who issued a medical opinion “not persuasive.” (Id. at 37-39). In
17 support of his RFC determination, the ALJ relied upon his interpretations of,
18 for example, diagnoses of Ehlers-Danlos syndrome, MRIs, a CT scan, an
19 ultrasound, and physical, neurological, and rheumatological examinations
20 with ambiguous or mixed results. (AR at 30-35) (citing, e.g., AR at 614-15,
21 937-40, 967, 1139, 2052-53, 2419-20, 2505-06, 2561, 2577-78, 3030, 3100-02,
22 3519-20, 3618-19). This evidence is not susceptible to a lay understanding
23 and does not obviously translate into functional limitations. See Escudero,
24 2019 WL 4917634, at *2. Accordingly, the Court finds that the ALJ’s
25 independent interpretation of raw medical data rendered his RFC
26 determination unsupported by substantial evidence.
1 It is possible that the ALJ here was guided by some or all of the medical
2 opinions he rejected, and thus did not independently interpret raw medical
3 data. The Rivera court suggests it would be permissible for an ALJ to
4 “synthesiz[e] all the medical evidence and opinions to reach his own RFC
5 determination,” as the Commissioner suggests the ALJ did here. Rivera,
6 2017 WL 5054656, at *5. It appears plausible that the ALJ here attempted to
7 reconcile highly “divergent medical opinions” to reach an RFC in the “middle
8 ground.” (ECF No. 15 at 8). The ALJ nowhere indicated this intent,
9 however, and the Court will not “affirm the ALJ on a ground upon which he
10 did not rely.” See Garrison, 759 F.3d at 1010. Because “the ALJ was not
11 qualified to translate the data into functional limitations,” the ALJ’s RFC
12 determination is not supported by substantial evidence. See Rivera, 2017 WL
13 5054656, at *5.
14 It is not clear to the Court that a proper interpretation of the record
15 would necessarily support a less-restrictive RFC, thus the Court cannot
16 conclude that this error was harmless. See Danielle L. v. Saul, No. 1:18-CV-
17 3213-FVS, 2020 WL 3619081, at *9 (E.D. Wash. Mar. 11, 2020) (citing, e.g.,
18 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008))
19 (error supporting a less restrictive RFC is harmless because it would not
20 affect the ultimate non-disability determination). On remand, the ALJ is
21 instructed to develop the record and reconsider the review of evidence as
22 necessary to produce an RFC that does not rely on impermissible
23 interpretations of raw medical evidence.
24 a. No Medical Opinion Regarding Somatic Symptom Disorder
25 Plaintiff argues that the ALJ’s failure to consider somatic symptom
26 disorder also affected the RFC, though Plaintiff’s argument is not specific.
1 Plaintiff (sic) reports of pain, fatigue, and weakness and accounted for
2 attendant limitations in Plaintiff’s restrictive RFC.” (Id.). The Court has
3 determined that somatic symptom disorder must be discussed at step two.
4 Consequently, further development of medical opinion evidence may be
5 necessary to determine whether changes to Plaintiff’s RFC are appropriate.
6 Where ambiguities exist in the record, it is the ALJ’s duty to resolve
7 them by fully developing the record. Russell C. v. Saul, No. 20-CV-256-MMA
8 (RBM), 2021 WL 1116034, at *2 (S.D. Cal. Mar. 24, 2021) (citing Tonapetyan
9 v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). Particularly where there is an
10 “inconsistency in the evidence” or where “highly technical or specialized
11 medical evidence that [the ALJ] need[s] is not available” from medical
12 sources on the record, a consultative examination may be appropriate. 20
13 C.F.R. §§ 404.1519a(b); 416.919a(b); see Rivera, 2017 WL 5054656, at *3.
14 Inconsistencies in the evidence are characteristic of somatic symptom
15 disorder. See supra p. 12. Despite Plaintiff’s extensive record spanning over
16 4,000 pages, the Court is not aware of any medical source opinions that
17 specifically address Plaintiff’s functional limitations relating to somatic
18 symptom disorder. An additional medical examination addressing the
19 disorder may therefore be required. See Jacob M. v. Comm’r, SSA, No. 6:17-
20 CV-02000-MC, 2019 WL 2267303, at *5 (D. Or. May 28, 2019) (“[T]he ALJ
21 erred by failing to credit or obtain a medical source opinion addressing
22 Plaintiff’s conversion disorder.”). Accordingly, upon remand, if the ALJ
23 determines that Plaintiff has an MDI of somatic symptom disorder, the ALJ
24 shall either: 1) order a further consultative examination addressing the
25 disorder, or 2) discuss why no medical opinion regarding somatic symptom
26 disorder is necessary.
1 4. Migraine and Carpal Tunnel Limitations
2 Plaintiff also argues that the ALJ failed to consider Plaintiff’s migraine
3 and carpal tunnel impairments in Plaintiff’s RFC determination. The Court
4 is remanding this case so that the ALJ may consider whether somatic
5 symptom disorder is an MDI. This finding may require the ALJ to reconsider
6 Plaintiff’s medical evidence and testimony, including evidence and testimony
7 related to Plaintiff’s nonsevere MDIs of migraines and carpal tunnel
8 syndrome. On remand, the ALJ will also further develop the record and
9 reconsider Plaintiff’s RFC as necessary based on medical opinion(s) where the
10 evidence is not susceptible to a lay understanding and does not obviously
11 translate into functional limitations. Because the action on remand is likely
12 to alter the record relating to Plaintiff’s alleged migraine and carpal tunnel
13 limitations or influence the interpretation thereof, the Court declines to reach
14 this issue.
15 5. Remand for Further Proceedings
16 When error exists in an administrative determination, “the proper
17 course, except in rare circumstances, is to remand to the agency for
18 additional investigation or exploration.” INS v. Ventura, 537 U.S. 12, 16, 123
19 S. Ct. 353, 154 L. Ed. 2d 272 (2002) (citations and quotation marks omitted);
20 Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Where additional
21 administrative proceedings could remedy defects in the decision, remand is
22 warranted. Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). The Court
23 has determined that the record requires additional development, so remand
24 is proper.
25 III. CONCLUSION
26 For the foregoing reasons, the Joint Motion for Judicial Review is
1 Commissioner denying benefits and REMANDS the matter to the
9 Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further
3 ||}administrative action consistent with the findings presented herein.
4 IT IS SO ORDERED.
Dated: September 29, 2022 Vitel bs. [
Hon. Mitchell D. Dembin
7 United States Magistrate Judge
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