# Ortiz v. Saul

> District Court, S.D. California · December 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10086907

## Case

- **Court:** District Court, S.D. California
- **Decided:** December 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10086907

## How later opinions describe it (automated extraction)

- Finding the court may 18 “review only the reasons provided by the ALJ in the disability determination and may not 19 affirm the ALJ on a ground upon which he did not rely.”
- finding epidural injections 22 to neck and back, among others, not conservative

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 PATRICIA O, Case No.: 21-cv-376-CAB-BGS

12 Plaintiff,
REPORT AND
13 v. RECOMMENDATION TO REMAND
CASE TO SOCIAL SECURITY
14 KILOLO KIJAKAZI, Commissioner of
ADMINISTRATION FOR FURTHER
Social Security,
15 PROCEEDINGS
Defendant.
16
[ECF 21]
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19 I. INTRODUCTION
20 Plaintiff Patricia O. (“Plaintiff” or “claimant”) filed a Complaint seeking judicial
21 review of the Commissioner of the Social Security Administration’s (“Commissioner” or
22 “Defendant”) denial of disability insurance benefits under the Social Security Act, (ECF
23 1), and the Commissioner has filed the Administrative Record (ECF 14-19). Pursuant to
24 the Court’s Order, the parties have filed a Joint Motion for Judicial Review addressing
25 both parties’ positions. (ECF 19 (Court’s briefing Order); ECF 21 (Joint Motion).)
26 Plaintiff seeks reversal of the final decision denying benefits and an order for the
27 payment of benefits or, in the alternative that the Court remand the case for further
28 administrative proceedings. Plaintiff argues the Administrative Law Judge (“ALJ”) failed
1 to provide specific, clear and convincing reasons for rejecting Plaintiff’s allegations
2 regarding the severity of her symptoms. (ECF 21 at 4-17.1) The Commissioner argues
3 that the ALJ provided numerous reasons for discounting Plaintiff’s allegations regarding
4 the severity of her symptoms. (ECF 21 at 19-25.)
5 The Honorable Cathy Ann Bencivengo has referred this matter to the undersigned
6 on a report and recommendation basis. After careful consideration of the parties’
7 arguments, the administrative record and the applicable law and for the reasons discussed
8 below, the Court RECOMMENDS the case be remanded to the Social Security
9 Administration for further proceedings.
10 II. PROCEDURAL HISTORY
11 Plaintiff’s application for disability benefits, alleging disability commencing on
12 September 20, 2018, were denied initially on April 5, 2019 and on reconsideration on
13 April 11, 2019. (AR 333-338 (initially); AR 339-345 (reconsideration).)2 At Plaintiff’s
14 request, a hearing was held before an ALJ on April 7, 2020. (AR 177-217 (hearing
15 transcript), 347-348 (request for hearing).) The ALJ issued an unfavorable decision on
16 July 15, 2020. (AR 86-101.) Plaintiff’s request for Appeals Council review was denied on
17 January 12, 2021. (AR 1-7 (denial), 411-414 (request for review).)
18 III. ALJ DECISION
19 The decision explains the five-step evaluation process for determining whether an
20 individual is eligible for disability benefits and then proceeds through steps one through
21 five of the evaluation process. (AR 87-101.3)
22
23
1 Unless otherwise noted, the Court cites the CM/ECF electronic pagination for the
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parties’ briefing and the Administrative Record pagination for cites to it.
25 2 The ALJ decision explains that Plaintiff submitted a prior application alleging a March
6, 2016 onset date that was denied on September 18, 2018. (AR 87.) The ALJ noted the
26
presumptions of non-disability absent a showing of changed circumstances. (AR 87.) The
27 decision then finds there is evidence of changed circumstances. (AR 87.)
3 Relevant portions of the decision, including discussion of the specific records the ALJ
28
1 A. Step Two
2 After finding Plaintiff had not engaged in substantial gainful activity at step one,
3 (AR 89), the ALJ addresses step two. (AR 89-93.) At step two, the ALJ determines
4 whether a claimant has a “severe medically determinable physical or mental impairment .
5 . . or combination of impairments that is severe.” 20 C.F.R. § 1520(a)(4)(ii). The decision
6 finds Plaintiff had the following medically determinable severe impairments:
7 “retrolisthesis of L5-S1 with herniated nucleus pulposus (HNP) at L5-S1; patellofemoral
8 Chondromalacia of the left knee; minor degenerative changes of the cervical spine;
9 bradycardia; carotid bruit and mitral regurgitation.” (AR 89.)
10 The ALJ then notes Plaintiff “has also alleged disability due to anxiety disorder,
11 not otherwise specified; a depressive disorder, not otherwise specified; insomnia;
12 hypertension and urinary tract infection.” (AR 89.) The decision identifies blood pressure
13 readings in three medical records in 2019 and discusses two medical records in which
14 Plaintiff’s hypertension is described as stable. (AR 90.) The ALJ also acknowledges
15 Plaintiff’s insomnia diagnosis in the May 1, 2018 record and that it was described as
16 stable. (AR 90.)
17 The decision then addresses whether Plaintiff’s mental impairments are severe or
18 non-severe and addresses the four functional areas under the “paragraph B” criteria.4 (AR
19 90-93.) The ALJ cites a May 1, 2018 follow-up with Plaintiff’s cardiologist, in which the
20 ALJ indicates Plaintiff denied anxiety or depression and had normal mood and affect.
21 (AR 90.) The ALJ additionally notes another record, a November 27, 2018 appointment
22 with an orthopedic surgeon, indicating Plaintiff had normal mood and affect. (AR 90.)
23 The ALJ then summarizes Plaintiff’s consultive psychiatric evaluation and an
24 initial mental health evaluation by a licensed clinical social worker. (AR 90-91.) As to
25 both evaluations, the ALJ notes she was diagnosed with unspecified depressive disorder
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1 and unspecified anxiety. (AR 90-91.) As to the psychiatric evaluation, the decision
2 summarizes her mild limitations in a number of activities including, two-step
3 instructions, interacting with others, concentration and attention, accepting instructions,
4 and work attendance. (AR 91.) As to the initial mental health evaluation, the ALJ
5 indicates that Plaintiff reported that following her boyfriend committing suicide in
6 December 2019, she was unable to sleep, was throwing up when she ate, lacked energy,
7 and was easily triggered by what other people say. (AR 91.) The ALJ also explains that
8 she was recommended to receive psychotherapy 1-2 times per month for six months. (AR
9 91.) The ALJ then found, based on this evaluation, that these impairments would not last
10 twelve months or more under 20 CFR § 404.1505 and § 416.905. (AR 91.) The ALJ
11 concluded that Plaintiff’s anxiety and depressive disorders were non-severe. (AR 92.)
12 The decision then addresses the “paragraph B” criteria. (AR 922-93.) The ALJ
13 found Plaintiff had only mild limitations in the four functional areas: (1) understanding,
14 remembering, or applying information; (2) interacting with others; (3) concentrating,
15 persisting, or maintaining pace; and (4) mild limitation in adapting or managing herself.
16 (AR 92.) In conducting this analysis, the ALJ discussed Plaintiff’s Adult Function
17 Reports and the daily activities she reported engaging in as well as Plaintiff’s reports
18 during her psychiatric evaluation. (AR 92.)
19 The ALJ then explains that this “paragraph B criteria” analysis is only used to rate
20 the severity of mental impairments for steps two and three and not a residual functional
21 capacity (“RFC”). The ALJ concludes that Plaintiff’s anxiety disorder, depressive
22 disorder, insomnia, hypertension, and urinary tract infections are not severe impairments.
23 (AR 93.)
24 B. Step Three
25 At step three the ALJ considers whether the claimant’s impairments meet or equal
26 one or more of the specific impairments or combination of impairments described in
27 20 C.F.R. Part 404, Subpart P, Appendix 1, the listings. See §§ 404.1520(a)(4)(iii),
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1 404.1520(d), 404.1525, 404.1526. The ALJ found Plaintiff did not meet a listing at step
2 three. (AR 93.)
3 C. Residual Functional Capacity
4 If the claimant does not meet a listing, the ALJ “assess[es] and makes a finding
5 about [the claimant’s] residual functional capacity based on all the relevant medical and
6 other evidence in [the claimant’s] case record.” 20 C.F.R. §§ 404.1520(e). A claimant’s
7 RFC is the “most [they] can still do despite [their] limitations” taking into account all
8 medically determinable impairments, including “medically determinable impairments
9 that are not ‘severe.’” 20 C.F.R. § 404.1545(a)(1)(2). The RFC is used at the fourth and
10 fifth steps to determine whether the claimant can do their past work (step four) or adjust
11 to other available work (step five). §§ 404.1520(e)-(f), 404.1545(a)(5). The ALJ assessed
12 the following RFC:
13 After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work as
14
defined in 20 CFR 404.1567(b) and 416.967(b). She is able to lift, carry,
15 push, and pull 20 pounds occasionally and up to 10 pounds frequently. She
can stand and/or walk 6 hours and sit 6 hours in an 8 hour workday with
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normal breaks. She could never climb ladders, ropes or scaffolds;
17 occasionally climb ramps and stairs; and occasionally balance, stoop, kneel,
crouch and crawl. Additionally, she would need to avoid even moderate
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exposure to vibrations and she would need to avoid all exposure to
19 workplace hazards, such as unprotected heights, dangerous or fast-moving
machinery, etc.
20

21 (AR 93.)
22 The decision then explains that in making this finding, the ALJ “has considered all
23 Plaintiff’s symptoms and the extent to which these symptoms can reasonably be accepted
24 as consistent with the objective medical evidence and other evidence” and “also
25 considered the medical opinions and prior medical findings.” (AR 93 (citing 20 C.F.R.
26 § 404.1529 and 416.929, SSR 16-3p, 20 C.F.R § 404.1520c, and § 416.920c)
27 The ALJ then explains the two-step process to evaluate Plaintiff’s symptoms. (AR
28 93-94.) The decision identifies the first step as determining if an underlying impairment
1 could reasonably be expected to produce Plaintiff’s symptoms. (AR 93-94.) The ALJ
2 describes the second step as an evaluation of the intensity, persistence and limiting effects
3 of Plaintiff’s symptoms to determine the extent to which they limit Plaintiff’s work-
4 related activities. (AR 94) The ALJ notes that whenever Plaintiff’s statements “about the
5 intensity, persistence, or functionally limiting effects of pain or other symptoms are not
6 substantiated by objective medical evidence, the undersigned must consider other
7 evidence in the record to determine if the claimant’s symptoms limit the ability to do
8 work-related activities.” (AR 94.)
9 The ALJ then summarizes the following medical appointments: May 1, 2018
10 follow-up with her treating cardiologist; November 27, 2018 follow-up with an
11 orthopedic surgeon, Dr. Kimball; April 18, 2019 evaluation and September 19, 2019
12 follow-up with a different orthopedic surgeon, Dr. Abitbol; May 15, 2019 pain
13 management physician visit; and August 30, 2019 visit with another orthopedic surgeon,
14 Dr. Scalone. (AR 94-96.) The ALJ also notes Plaintiff underwent two medial branch
15 block lumbar injections that reportedly only provided relief for a couple of hours. (AR
16 96.) These were followed by two radiofrequency ablations (RFAs) that provided some
17 brief pain relief. (AR 96.)
18 The ALJ then summarizes Plaintiff’s February 26, 2019 and April 30, 2019 Adult
19 Function Reports as indicating she independently performs personal hygiene activities,
20 prepares simple meals, keeps her room clean, does her laundry, uses public
21 transportation, shops for groceries, attends church and a food bank, and interacts with
22 family, friends, neighbors, and authority figures. (AR 96.) The summary acknowledges
23 she reports she cannot handle a savings or checking account because of lack of
24 concentration and uses a knee brace, hand brace, and glasses. (AR 96.) The ALJ states
25 that his consideration of these reports includes “whether the information contained in the
26 reports are consistent with other evidence in the record, and any other factors that tend to
27 support or refute the information and opinions provided.” (AR 96-97.)
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1 The ALJ then states, “[i]n determining the claimant’s residual functional capacity,
2 the undersigned has also considered the allegations of her symptoms and functional
3 limitations.” (AR 97.) “However, to the extent that it is alleged that the claimant cannot
4 perform work at the residual functional capacity as recited above, the Administrative Law
5 Judge finds those allegations are not totally consistent with the evidence for the following
6 specific and legitimate reasons.”5 (AR 97.) The ALJ then lists nine reasons that are
7 discussed further below (section V.B). (AR 97-98.) The ALJ then returns to the second
8 step of the two-step process for evaluating a claimant’s symptoms and “finds that the
9 claimant’s medically determinable impairments could reasonably be expected to cause
10 the alleged symptoms; however, the claimant’s statements concerning the intensity,
11 persistence and limiting effects of these symptoms are not entirely consistent with the
12 medical evidence and other evidence in the record for the reasons explained in this
13 decision.” (AR 98.)
14 The ALJ then summarizes and agrees with medical consultant opinions finding
15 Plaintiff can perform work at the light level of activity with the additional limitations
16 noted in the RFC above and that she lacks a severe mental impairment. (AR 98.) In doing
17 so, the ALJ notes the “exertional and nonexertional limits are also consistent with the
18 claimant’s course of treatment that has been mostly conservative.” (AR 98-99.)
19 The ALJ concludes that “[t]he objective medical evidence and the claimant’s
20 acknowledged activities are consistent with the ability to perform activities at the above
21 stated residual functional capacity levels and inconsistent with the inability to do any
22 work activity.” (AR 99.)
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5 The ALJ decision refers to Plaintiff’s “allegations of symptoms” or more generally
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“allegations” rather than “testimony.” Although, as discussed in more depth below, it is
27 not always clear what allegations the ALJ intends to encompass in these phrases the
Court presumes the ALJ is including more than Plaintiff’s testimony given these phrases
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1 Relying on testimony from a vocational expert, the ALJ determined at step four
2 that Plaintiff could do her past relevant work as a cashier. (AR 99.) The ALJ also found
3 in the alternative at step five that there were other jobs in the national economy that
4 Plaintiff was also able to perform: small products assembler, inspector, or marker. (AR
5 99-100.)
6 IV. SCOPE OF REVIEW
7 Section 405(g) of the Social Security Act allows unsuccessful claimants to seek
8 judicial review of a final agency decision. 42 U.S.C. § 405(g). This Court has jurisdiction
9 to enter a judgment affirming, modifying, or reversing the Commissioner’s decision. See
10 id.; see also 20 C.F.R. § 404.900(a)(5). The matter may also be remanded to the Social
11 Security Administration for further proceedings. 42 U.S.C. § 405(g).
12 If the Court determines that the ALJ’s findings are not supported by substantial
13 evidence or are based on legal error, the Court may reject the findings and set aside the
14 decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001).
15 The Court “must consider the entire record as a whole and may not affirm simply by
16 isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin., 466
17 F.3d 880, 882 (9th Cir. 2006) (citation omitted); see also Ahearn v. Saul, 988 F.3d 1111,
18 1115 (9th Cir 2021) (“To determine whether substantial evidence supports the ALJ’s
19 determination, we must assess the entire record, weighing the evidence both supporting
20 and detracting from the agency’s conclusion.”) (citing Mayes v. Massanari, 276 F.3d 453
21 459 (9th Cir. 2001)). Substantial evidence “means—and means only—such relevant
22 evidence as a reasonable mind might accept as adequate to support a conclusion.”
23 Ahearn, 988 F.3d at 1115 (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)).
24 The Court may “review only the reasons provided by the ALJ in the disability
25 determination and may not affirm the ALJ on a ground upon which he did not rely.”
26 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
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1 V. DISCUSSION
2 Plaintiff argues the ALJ failed to provide legally sufficient rationale for rejecting
3 Plaintiff’s symptom testimony and the absence of an articulated rationale is itself legal
4 error, warranting remand. (ECF 21 at 9.) Plaintiff acknowledges the ALJ’s enumerated
5 reasons, but argues that none of them meet the clear and convincing standard, in part
6 because the ALJ failed to connect the testimony or allegations he found not credible to
7 the part of the record supporting the non-credibility determination. (ECF 21 at 9, 13-16.)
8 More specifically, Plaintiff challenges: (1) the ALJ’s reliance on Plaintiff’s daily
9 activities (ECF 21 at 10-14); (2) the ALJ’s reliance solely on the objective medical
10 evidence without connecting any of it to Plaintiff’s testimony (ECF 21 at 14-16); (3)
11 seeming to characterize Plaintiff’s treatment as routine or conservative when it was not
12 (ECF 21 at 16); and (4) finding Plaintiff not credible because a one-time examining
13 physician noted Plaintiff drove to an examination (ECF 21 at 16-17). Defendant argues
14 the ALJ provided numerous proper reasons for discounting Plaintiff’s testimony. (ECF 21
15 at 19-25.) Defendant points to the ALJ’s reliance on controlled hypertension and
16 depression and anxiety not lasting more than twelve months (ECF 21 at 21-22); objective
17 medical evidence (ECF 21 at 23); conservative treatment (ECF 21 at 23-24); lack of
18 medical opinions further restricting Plaintiff (ECF 21 at 24); Plaintiff’s daily activities
19 (ECF 21 at 24-25); and Plaintiff’s statements about driving (ECF 21 at 22-23).
20 A. Applicable Legal Standard
21 When evaluating a Plaintiff’s impairment-related symptoms, ALJ’s must follow a
22 two-step process. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (“We have
23 established a two-step analysis for determining the extent to which a claimant’s symptom
24 testimony must be credited.”); Garrison, 759 F.3d at 1014 (citing Lingenfelter v. Astrue,
25 504 F.3d 1028, 1035-36 (9th Cir. 2007); 20 C.F.R. § 404.1529 (Describing how the
26 Commissioner evaluates symptoms); see also SSR 16-3p, 2017 WL 5180304, at *2-3
27 (Detailing the Commissioner’s two-step process for evaluating symptoms).
28
1 At the first step, “the ALJ must determine whether the claimant has presented
2 objective medical evidence of an underlying impairment which could reasonably be
3 expected to produce the pain or other symptoms alleged.” Garrison, 871 F.3d at 678;
4 SSR 16-3p, 20017 WL 5180304, at *3.
5 When the claimant satisfies the first step and there is no determination of
6 malingering by the ALJ, at the second step, “the ALJ must provide ‘specific, clear, and
7 convincing reasons for’ rejecting the claimant’s testimony regarding the severity of the
8 claimant’s symptoms.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102
9 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); Smith v.
10 Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021); Garrison, 759 F.3d at 1014-15; Parra v.
11 Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (citations omitted). The clear and convincing
12 standard is the most demanding required in Social Security cases.” Garrison, 759 F.3d at
13 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
14 B. Analysis
15 The ALJ found that Plaintiff satisfied the first step. (AR 98 (Finding “the
16 claimant’s medically determinable impairments could reasonably be expected to cause
17 the alleged symptoms”).) Having found Plaintiff’s impairments could be expected to
18 cause the alleged symptoms, the only issue raised is whether the ALJ provided specific
19 clear and convincing reasons for rejecting Plaintiff’s testimony or allegations as to the
20 severity of those symptoms.
21 As summarized above, Plaintiff raises several challenges to the ALJ’s decision.
22 Each of those issues is addressed further and individually below along with Defendant’s
23 arguments. However, there is an overarching problem Plaintiff raises as to multiple
24 reasons given by the ALJ—that the ALJ failed to connect the reasons given or evidence
25 relied on to Plaintiff’s testimony or symptom allegations.
26 1. Identification of Testimony and Evidence Undermining
27 To meet the clear and convincing standard, the Ninth Circuit “require[s] the ALJ to
28 specifically identify the testimony from a claimant [the ALJ] finds not to be credible and .
1 . . explain what evidence undermines this testimony.” Treichler, 775 F.3d at 1102;
2 Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020) (“the ALJ must identify the specific
3 testimony that he discredited and explain the evidence undermining it.”); Smolen, 80 F.3d
4 at 1284 (“The ALJ must state specifically which symptom testimony is not credible and
5 what facts in the record lead to that conclusion.”); Parra, 481 F.3d at 750 (“The ALJ
6 must provide clear and convincing reasons to reject a claimant’s subjective testimony, by
7 specifically identifying what testimony is not credible and what evidence undermines the
8 claimant’s complaints.”); Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir.2009) (“[T]he
9 ALJ [is] required to point to specific facts in the record.”) (emphasis added) (internal
10 quotation marks omitted); Burrell v. Colvin, 775 F.3d 1133, 1137-38 (9th Cir. 2014). The
11 ALJ’s findings must be “sufficiently specific to permit the court to conclude that the ALJ
12 did not arbitrarily discredit claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035,
13 1039 (9th Cir. 2008).
14 Here, the ALJ has not identified the testimony or allegations he is finding not
15 credible or connected his reasons for discounting Plaintiff’s symptoms to any testimony
16 or allegations. As summarized above (section III.C), after stating Plaintiff’s RFC, the
17 ALJ indicates generally that he “has considered all Plaintiff’s symptoms and the extent to
18 which these symptoms can reasonably be accepted as consistent with the objective
19 medical evidence and other evidence”(AR 93), but does not identify what symptoms he is
20
21
6 The Court notes that some cases articulating the analysis under the second step use the
22
term credibility, and SSR 16-3p explicitly removed the term “credibility” from the
23 Commissioner’s sub-regulatory policy. However, the Ninth Circuit has explained that
SSR 16-3p “makes clear what our precedent already require: the assessments of an
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individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence
25 of symptoms after the ALJ finds that the individual has a medically determinable
impairment(s) that could reasonably be expected to produce those symptoms,” not to
26
delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.”
27 Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16-3p). Regardless of the use of the term
credibility, the Court’s application of Ninth Circuit authority here is consistent with
28
1 referring to or explain how they are consistent or inconsistent with the medical evidence
2 or other evidence.
3 The decision then acknowledges the two-step process noted above to evaluate a
4 claimant’s symptoms (AR 93-94) and summarizes some of Plaintiff’s medical history and
5 Plaintiff’s Adult Function Reports. (AR 94-96; see also section III.C.) These summaries
6 do not constitute clear and convincing reasons. “[P]roviding a summary of medical
7 evidence . . . is not the same as providing clear and convincing reasons for finding the
8 claimant’s symptom testimony not credible.” Lambert, 980 F.3d at 1278 (“Although the
9 ALJ did provide a relatively detailed overview of Lambert’s medical history, ‘providing a
10 summary of medical evidence . . . is not the same as providing clear and convincing
11 reasons for finding the claimant's symptom testimony not credible.’”) (quoting Brown-
12 Hunter v. Colvin, 806 F.3d a478, 494 (9th Cir. 2015) (emphasis in original). “[A]n ALJ
13 does not provide specific, clear, and convincing reasons for rejecting a claimant’s
14 testimony by simply reciting the medical evidence in support of his or her residual
15 functional capacity determination.” Brown-Hunter, 806 F.3d at 489. The Court notes that
16 some of the summaries emphasize positive or normal findings and note some of
17 Plaintiff’s reports to her physicians at these appointments, however, there is no
18 connection between these summaries and Plaintiff’s symptoms as required to meet the
19 clear and convincing standard. The ALJ does not identify any testimony or allegations he
20 is finding not credible or the evidence undermining it within these summaries. See Parra,
21 481 F.3d at 750 (“The ALJ must provide clear and convincing reasons to reject a
22 claimant’s subjective testimony, by specifically identifying what testimony is not credible
23 and what evidence undermines the claimant’s complaints.”).
24 After the summaries, the ALJ states he has “considered the allegations of her
25 symptoms and functional limitations, . . . [h]owever, to the extent that it is alleged that
26 the claimant cannot perform work at the residual functional capacity recited above, the
27 Administrative Law Judge finds those allegations are not totally consistent with the
28 evidence for the following specific and legitimate reasons.” (AR 97.) The language itself
1 is deficient because the ALJ is essentially rejecting the Plaintiff’s symptom allegations to
2 the extent that are not consistent with the ALJ’s RFC. Courts have characterized this as
3 “a backward approach” because “an ALJ must take into account a claimant’s symptom
4 testimony when determining the RFC.” Revels v. Berryhill, 874 F.3d 648, 666 (9th Cir.
5 2017) (ALJ “found that [plaintiff’s] testimony was not credible ‘to the extent it was
6 inconsistent with the . . . RFC.”) (citing Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th
7 Cir. 2017) and Trevizo, 862, F.3d at 1000 n.6). “To determine the RFC first and then
8 assess the claimant’s testimony is to ‘put the cart before the horse.’” Id. (citing Laborin,
9 867 F.3d at 1154) (emphasis in original); see also Eldridge v. Berryhill, Case No. 17-cv-
10 497-JLA-BLM, 2018 WL 2357147, at *11 (S.D. Cal. May 23, 2018) (“The ALJ’s focus
11 on the connection between the medical evidence and the RFC, instead of Plaintiff’s
12 testimony, failed to provide specific, clear, and convincing reasons for disbelieving
13 specific statements from Plaintiff's testimony.”).
14 The ALJ does go on to list reasons, however, none of them are connected to any
15 symptom testimony or allegations by Plaintiff. (AR 97-98.) The closest connection in the
16 reasons listed are three statements that vaguely refer to not having a “disabling level of
17 impairment,” “impairments likely to produce disabling pain or other limitations,” and “no
18 treating or examining source medical statements . . . further restrict the claimant’s
19 functional limitations.” ((AR 97 (ALJ indicates some daily activities “do not indicate a
20 disabling level of impairment of the claimant’s residual functional capacity”); AR 98
21 (“the objective evidence of the claimant’s medical record does not establish impairments
22 likely to produce disabling pain or other limitations as alleged”).) However, even
23 assuming the reasons given support those vague conclusions, the ALJ has not connected
24 them to any allegations or testimony. A generic reference to “complaints of disabling
25 symptoms and limitations . . . [does] not specifically identify the statements . . . the ALJ
26 [is] discrediting.” Isis A. v. Saul, Case No. 18cv01728-W-MSB, 2019 WL 3554969, at *5
27 (S.D. Cal. Aug. 2, 2019).
28
1 The ALJ then concludes “the claimant’s statements concerning the intensity,
2 persistence, and limiting effects of these symptoms are not entirely consistent with the
3 medical evidence and other evidence in the record for the reasons explained in this
4 decision.” (AR 98.) However, because the ALJ has not identified the symptoms he is
5 referring to or explained how they are inconsistent with the evidence, the ALJ has failed
6 to “identify the specific testimony that he discredited and explain the evidence
7 undermining it.” Lambert, 980 F.3d at 1268; Smolen, 80 F.3d at 1284 (“The ALJ must
8 state specifically which symptom testimony is not credible and what facts in the record
9 lead to that conclusion.”).
10 The Court recognizes that ALJs are not “require[d] . . . to perform a line-by-line
11 exegesis of the claimant’s testimony . . . [or] draft dissertations when denying benefits,”
12 but here the closet the ALJ gets to identifying the testimony he is rejecting is vague
13 references to “disabling limitations,” and the decision provides no link between the
14 reasons and any symptom allegations or testimony. See Lambert, 980 F.3d at 1277(citing
15 Treichler, 775 F.3d at 1103). The ALJ’s findings are not “sufficiently specific to permit
16 the court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.”
17 Thomas, 278 F.3d at 958.
18 2. Daily Activities
19 An “ALJ [is] permitted to consider daily living activities in his credibility
20 analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); see also Molina v.
21 Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) superseded on other grounds by 20 C.F.R. §
22 404.1502(a). Daily activities “form the basis for an adverse credibility determination”
23 when: (1) the daily activities meet the threshold for transferable work skills or (2) the
24 daily activities contradict the claimant’s other testimony. Orn v. Astrue, 495 F.3d 625,
25 639 (9th Cir. 2007); see also Trevizo, 871 F.3d at 682.
26 Plaintiff argues the ALJ simply identifies some activities without any explanation
27 how they demonstrate the ability to perform work and even the activities identified are
28 mischaracterized. (ECF 21 at 10-12.) Plaintiff also argues the activities cited by the ALJ
1 are not so extensive on their own to undermine Plaintiff’s testimony without explanation
2 from the ALJ, and the ALJ does not explain how these daily activities are inconsistent
3 with Plaintiff’s testimony or claimed disability. (ECF 21 at 12-3.) Plaintiff argues this
4 lack of connection between the testimony and the portions of the record relied on by the
5 ALJ prevent the Court from determining whether the decision is supported by substantial
6 evidence. (ECF 21 at 13 (citing Brown-Hunter, 806 F.3d at 494).) Defendant argues the
7 ALJ properly relied on Plaintiff’s daily activities because they suggested she could
8 perform basic tasks and had no more than mild limitations in adapting and managing her
9 anxiety and depression. (ECF 21 at 24-25.)
10 The ALJ made no findings indicating the identified activities met the threshold for
11 transferable work skills and Defendant does not advance that as a basis for an adverse
12 credibility determination. The issue then is whether the ALJ found Plaintiff’s daily
13 activities contradict her testimony or symptom allegations. The ALJ did not.
14 Citing Plaintiff’s Adult Function Reports, the ALJ’s first reason listed in the
15 decision states Plaintiff’s “activities of daily living include[:] independently caring for
16 her own personal hygiene; performing light household chores, such as keeping her room
17 clean; performing her own laundry duties; shopping in stores for groceries and personal
18 items and driving a vehicle.” (AR 97.) The ALJ then concludes “[t]hese activities do not
19 indicate a disabling level of impairment of the claimant’s residual functional capacity.”
20 (AR 97.)
21 The Court agrees that the ALJ’s characterization of the some of these activities
22 may not be completely accurate in that they do not acknowledge the infrequency of them
23 or other limitations that might paint a different picture of Plaintiff’s abilities. See Cobb v.
24 Colvin, No. CV 14-0655 RNB, 2014 WL 5659414, at *2 (C.D. Cal. Nov. 4, 2014)
25 (Finding ALJ’s reasoning legally insufficient when ALJ “ignored the full context of
26 plaintiff’s statements about his daily activities, which indicated that he performed them
27 on a limited basis with help and rest.”) For example, “shopping in stores for groceries and
28 personal items” does not acknowledge that one of the reports the ALJ cites also indicates
1 as to shopping “I don’t really shop, my friend . . . once a month takes me to get free food”
2 and she only shops once a month. (AR 473, 499; see also AR 498 (laundry only done
3 twice a month).) However, the ALJ’s statements are not completely wrong except as the
4 statement that she drives with citation to these two reports. Both reports cited indicate she
5 does not drive. (AR 473, 499.)
6 Even assuming the ALJ’s characterization are accurate, the greater issue is that the
7 ALJ does not explain how any of these activities, even as favorably stated, are
8 inconsistent with Plaintiff’s testimony or allegations. And Plaintiff accurately notes that
9 none of them are so demanding that they obviously undermine Plaintiff’s testimony
10 without some explanation from the ALJ. The ALJ may consider the “inconsistencies
11 either in his testimony or between his testimony and his conduct concerning the nature,
12 severity and effect of the symptoms of which he complains.” Light v. Soc. Sec. Admin.,
13 119 F.3d 789, 792 (9th Cir. 1997); Garrison, 759 F.3d at 1015-16; see also Reddick v.
14 Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Our examination of the record shows that the
15 ALJ has erred in characterizing statements and documents contained therein to reach the
16 conclusion that Claimant exaggerated her symptoms.”); (citation omitted). But here, the
17 ALJ has not explained how the identified activities undermine Plaintiff’s testimony. Even
18 if the ALJ’s characterizations of the activities are accurate, the Court cannot determine if
19 they are inconsistent with Plaintiff’s claims because the ALJ has not connected them to
20 any testimony or allegations by Plaintiff.
21 3. Objective Medical Evidence
22 Inconsistency with objective medical evidence is a clear and convincing reason to
23 discredit claimant testimony. Burch, 400 F.3d at 681 (“Although lack of medical
24 evidence cannot form the sole basis for discounting pain testimony, it is a factor that the
25 ALJ can consider in his credibility analysis.”). However, the ALJ cannot reject a
26 claimant’s testimony regarding the severity of their symptoms solely because the
27 objective medical evidence does not support it. Reddick, 157 F.3d at 722 (“Commissioner
28 may not discredit the claimant’s testimony as to the severity of symptoms merely because
1 they are unsupported by objective medical evidence.”); 20 C.F.R. § 404.1529(c)(2)
2 (“[W]e will not reject your statements about the intensity and persistence of your pain or
3 other symptoms or about the effect your symptoms have on your ability to work solely
4 because the available objective medical evidence does not substantiate your statements.”)
5 (emphasis added); SSR 16-3p, 2017 WL 5180304, at *5 (“[W]e will not disregard an
6 individual’s statements about the intensity, persistence, and limiting effects of symptoms
7 solely because the objective medical evidence does not substantiate the degree of
8 impairment-related symptoms alleged by the individual.”) (emphasis added). There must
9 be other clear and convincing reasons for rejecting Plaintiff’s symptom testimony.
10 Plaintiff argues the ALJ erred in the second and fourth through ninth reasons listed
11 by the ALJ because the ALJ is not permitted to rely solely on the objective medical
12 evidence and the ALJ never connects any of these reasons to Plaintiff’s testimony or
13 allegations regarding her symptoms. (ECF 21 at 14-16.) Defendant relies on the ALJ’s
14 findings, summarized above, that Plaintiff’s hypertension was controlled and her
15 depression and anxiety were not likely to last more than twelve months. (ECF 21 at 21-
16 22.)
17 Defendant also argues the ALJ permissibly relied on objective medical evidence,
18 including full range of motion in her knee, reduced range of back motion with tenderness,
19 some improvement with treatment, and not following up with an orthopedic surgeon.
20 (ECF 21 at 23.) Defendant argues “[a]t one point Plaintiff even reported 50-80%
21 reduction in her pain with radiofrequency ablation of the lumbar spine.” (ECF 21 at 23.)
22 However, Defendant fails to acknowledge that improvement lasted less than a month as
23 to one and a little more than a month as to the other before pain flared up, and the
24 physical examination following “revealed decreased range of motion of the spine and
25 tenderness over the lumbar vertebra.” (AR 96 (ALJ summarizing lumbar injections and
26 radio frequency ablations).)
27 The ALJ’s reasons two and the fourth through ninth can be summarized as follows:
28 (second) Plaintiff denied anxiety and depression and had normal mood and affect at
1 cardiology appointment; (fourth) anxiety and depression would not meet the 12-month
2 duration requirements; (fifth) blood pressure controlled; (sixth) echocardiogram showed
3 normal ejection fraction, no evidence of ischemia or inducible arrhythmia and no stenosis
4 on carotid ultrasound; (seventh) hypertension controlled; (eighth) lack of follow-up
5 treatment with orthopedic surgeon as to knee; and (ninth) objective medical evidence
6 does not establish impairments likely to produce “disabling pain or other limitations as
7 alleged for any period of 12 or more continuous months.”
8 Here again, the issue is not that these reasons could not undermine or be
9 inconsistent with Plaintiff’s claims regarding the severity of her symptoms. The problem
10 is that ALJ does not connect any of this objective medical evidence to Plaintiff’s
11 symptoms, even generally, and certainly not specifically. The Court would agree that the
12 ALJ identified objective medical evidence suggesting that Plaintiff’s hypertension is
13 under control and that her anxiety and depression, while certainly diagnosed, do not
14 appear to be likely to last a long period of time. However, it is not clear how that
15 evidence undermines Plaintiff’s testimony. Even if the Court considers her denial of
16 anxiety and depression at a follow-up cardiology appointment as establishing that her
17 anxiety and depression are improved or even resolved, there is still no link or explanation
18 how that evidence is inconsistent with or contradictory to Plaintiff’s testimony or
19 allegations regarding her symptoms. Similarly, not following up with this orthopedic
20 surgeon regarding her knee might be inconsistent with her symptom allegations, although
21 this is even a bit unclear from the ALJ decision given the number of orthopedic surgeons
22 she was seeing. However, regardless, the ALJ does not provide the required link between
23 the testimony he is finding not credible and the evidence he asserts, without explanation,
24 undermines Plaintiff’s complaints. See Parra, 481 F.3d at 750 (“The ALJ must provide
25 clear and convincing reasons to reject a claimant’s subjective testimony, by specifically
26 identifying what testimony is not credible and what evidence undermines the claimant’s
27 complaints.”)
28
1 4. Conservative Treatment
2 Conservative treatment can be a basis for discounting a Plaintiff’s symptom
3 testimony. Parra, 481 F.3d at 751 (finding use of only over-the-counter medication to
4 treat pain was conservative treatment the ALJ could rely on to discount Plaintiff’s claims
5 regarding the severity of her pain). However, here, it does not appear Plaintiff’s treatment
6 was conservative and even if it was, it is again not clear what symptom testimony or
7 allegations that would undermine.
8 Plaintiff argues the ALJ does not cite any medical evidence that Plaintiff’s
9 treatment has been conservative or routine. (ECF 21 at 16 (citing AR 98 and Reason
10 Eight).) Plaintiff asserts that surgery and injections for pain are not conservative
11 treatment. (ECF 21 at 16 (citing Revels, 874 F.3d at 667 and Garrison, 759 F.3d at 1015
12 n.20). Defendant argues an ALJ may rely on conservative treatment to discount a
13 plaintiff’s testimony regarding the severity of an impairment, and asserts the ALJ’s
14 description of Plaintiff’s treatment as “mostly conservative” is accurate because there are
15 references to physical therapy, cortisone injections, and “operative alternatives” in the
16 record. (ECF 21 at 23-24 (citing Parra , 481 F.3d at 751.) Defendant does not address
17 Plaintiff’s assertion that surgery and injections are not conservative treatment.
18 While the Court would agree that some of Plaintiff’s treatment was conservative,
19 including the physical therapy noted by Defendant, other treatments were not, including
20 the lumbar injections and potentially the radio frequency ablations, although the parties
21 largely do not address these ablations. Revels, 874 F.3d at 667 (finding epidural injections
22 to neck and back, among others, not conservative); Garrison, 759 F.3d at 1015 n.20
23 (“[W]e doubt that epidural steroid shots to the neck and lower back qualify as
24 “conservative” medical treatment.”).
25 Additionally, the ALJ does not provide any explanation indicating why or what
26 testimony he would discount on the basis that Plaintiff’s treatment “has been mostly
27 conservative.” (AR 98.) There is no explanation what treatment he considers
28 conservative, and there is no explanation how any particular treatment or treatments are
1 inconsistent with or undermine Plaintiff’s testimony or allegations. Again, the ALJ’s
2 analysis lacks the required link between medical records or findings based on them, like
3 conservative treatment, and Plaintiff’s testimony. The most specific explanation from the
4 ALJ is that the lack of follow-up with a particular orthopedic surgeon was not consistent
5 with “a disabling level of knee pain.” (AR 98 (Eighth Reason). However, what
6 constitutes “a disabling level of knee pain” and how that undermines Plaintiff’s testimony
7 or allegations is still not explained. Even if the Court assumes surgery, injections, and
8 radiofrequency ablations are conservative treatment, the required link between this
9 evidence and how in undermines Plaintiff’s testimony is lacking. A generic reference to
10 “complaints of disabling symptoms and limitations . . . [does] not specifically identify the
11 statements . . . the ALJ [is] discrediting.” Isis A., 2019 WL 3554969, at *5.
12 5. Driving
13 Defendant argues the ALJ reasonably found contradictions regarding Plaintiff’s
14 driving called into question the veracity of all Plaintiff’s statements. (ECF 21 at 22-23.)
15 There are at least three problems here.
16 As an initial matter, Defendant’s argument is an attempt to add a ground, albeit
17 related, that the ALJ did not rely on. Garrison, 759 F.3d at 1010 (Finding the court may
18 “review only the reasons provided by the ALJ in the disability determination and may not
19 affirm the ALJ on a ground upon which he did not rely.”). The ALJ called into question
20 the veracity of all Plaintiff’s statements because the July 1, 2019 evaluation report
21 indicated Plaintiff “had driven her own vehicle to the evaluation,” but she indicated in
22 adult function reports completed two months prior that she did not drive. (AR 97.) The
23 ALJ does not cite the record in his decision, but the report from the evaluation on the date
24 referenced states Plaintiff “stated she drove her own vehicle to the appointment.” (AR
25 833.) Defendant cites and quotes from a different portion of this report that indicates
26 Plaintiff’s “activities included operat[ing] her own motor vehicle for transportation” and
27 argues “[t]his suggested that her driving to the appointment was not an isolated activity
28 despite her contradictory statements.” (ECF 21 at 22 (quoting AR 835). The ALJ relied
1 on a single instance of Plaintiff driving to an evaluation to question the veracity of all her
2 statements while Defendant is relying on a broader statement and arguing it was not an
3 isolated instance. While these reasons both concern driving, they are not the same and the
4 Court cannot affirm the ALJ on a ground he did not rely on. See Garrison, 759 F.3d at
5 1010.
6 Additionally, Plaintiff accurately points out that the ALJ relied on a single instance
7 where Plaintiff was reported to have driven without any discussion of the evidence in the
8 record that she was driven to numerous other appointments by someone. (ECF 21 at 16-
9 17 (citing AR 855, 861, 863).) ALJs are permitted to weigh evidence and make findings
10 in assessing the credibility of a claimant’s testimony. See Gallant v. Heckler, 753 F.2d
11 1450, 1456 (1984). However, they cannot justify a conclusion by ignoring competent
12 evidence, particularly without any explanation. Id.; see Diedrich v. Berryhill, 874 F.3d
13 634, 642-43 (9th Cir. 2017) (ALJ noted certain activities the claimant could do, but
14 impermissibly ignored other evidence). The Court recognizes this is not an instance
15 where an ALJ has ignored a mountain of evidence to the contrary to reach a preferred
16 conclusion. Rather, the ALJ has relied on one note indicating she says she drove to the
17 appointment and there are at least three in which she is noted to have a driver. (AR 833
18 (drove), 855 (had driver), 861 (had driver), 863 (had driver).) However, it is how extreme
19 his conclusion is without any discussion that is problematic. The ALJ has questioned the
20 veracity of all Plaintiff’s statements, without identifying any of them, based on one
21 instance of driving to one appointment without any discussion of or even
22 acknowledgment of other records to the contrary. This is particularly concerning in this
23 case because, as discussed above, the ALJ has otherwise not connected the evidence in
24 the record to Plaintiff’s testimony and only barely does here by reference to her adult
25 function reports.
26 Additionally, questioning “the veracity of all of [Plaintiff’s] statements” based on a
27 single note seems more aligned with Plaintiff’s “apparent truthfulness” than “evaluat[ing
28 the intensity and persistence of symptoms and this is not permissible. The Ninth Circuit
1 has explained in addressing the removal of “credibility” from the regulatory guidance,
2 that SSR 16-3p “makes clear what our precedent already require: the assessments of an
3 individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence
4 of symptoms after the ALJ finds that the individual has a medically determinable
5 impairment(s) that could reasonably be expected to produce those symptoms,” not to
6 delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.”
7 Trevizo, 871 F.3d at 678 n.5 (quoting SSR 16-3p) (emphasis added). Although the ability
8 to drive or not drive might provide an indicator as the severity of symptoms, like the
9 other reasons discussed above, the ALJ has not connected this conclusion to any
10 symptoms and appears to be discounting unspecified testimony based on untruthfulness.
11 The Court finds the ALJ failed to provide specific clear and convincing reasons for
12 rejecting Plaintiff’s symptom testimony or allegations.
13 6. Harmless Error and Remand
14 When, as here, the ALJ has erred, the Court must consider whether the error was
15 harmless. “ALJ errors in social security cases are harmless if they are ‘inconsequential to
16 the ultimate non-disability determination.’” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th
17 Cir. 2015) (quoting Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir.
18 2006)); see also Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008)
19 (An ALJ’s reliance on erroneous reasons is harmless so long as the “remaining reasoning
20 and ultimate credibility determination were adequately supported by substantial
21 evidence”). However, “where the magnitude of an ALJ error is more significant, then the
22 degree of certainty of harmlessness must also be heightened before an error can be
23 determined to be harmless.” Marsh, 792 F.3d at 1173.
24 Here, as discussed above, the ALJ’s findings are not “sufficiently specific to
25 permit the court to conclude that the ALJ did not arbitrarily discredit the claimant’s
26 testimony.” Thomas, 278 F.3d at 958. More specifically, the decision does not explain
27 how the reasons cited undermine unidentified testimony. This lack of connection between
28 the ALJ’s cited reasons and any testimony throughout the decision not only fall short of
1 the clear and convincing standard, but also preclude the Court from finding this error
2 harmless.
3 However, the Court find’s remand of the case is required rather than an award of
4 benefits. “The rare circumstances that result in a direct award of benefits are not present
5 in this case.” Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017). “When the ALJ
6 denies benefits and the court finds error, the court ordinarily must remand to the agency
7 for further proceedings before directing an award of benefits.” Id. at 1045 (citing
8 Treichler, 775 F.3d at 1099). The credit-as-true analysis “permits, but does not require, a
9 direct award of benefits on review but only where the [ALJ] has not provided sufficient
10 reasoning for rejecting testimony and there are no outstanding issues on which further
11 proceedings in the administrative court would be useful.” Id. at 1044.
12 The Court need not address each step of the three-part analysis because here there
13 are “outstanding issues on which further proceedings in the administrative court would be
14 useful.” Id. At the second step, the Court considers “whether there are ‘outstanding issues
15 that must be resolved before a disability determination can be made’ and whether further
16 administrative proceedings would be useful.’” Id. (quoting Treichler, 775 F.3d at 1101).
17 “In evaluating this issue, [the Court] consider[s] whether the record as a whole is free
18 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 F.3d 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. As discussed above, the ALJ erred in evaluating Plaintiff’s symptom testimony,
23 and the ALJ’s erroneous findings are inadequate, but the primary issue is the failure to
24 explain how the evidence relied on undermines Plaintiff’s testimony. That could
25 potentially be rectified through further administrative review, making remand appropriate
26 in this case.
27 ///
28 ///
1 |} VI. CONCLUSION
2 The Court RECOMMENDS this case be REMANDED to the Social Security
3 || Administration for further proceedings for the reasons set forth above.
4 IT IS ORDERED that no later than January 9, 2023, any party to this action may
5 || file written objections with the Court and serve a copy to all parties. The document should
6 || be captioned “Objections to Report and Recommendation.”
7 IT IS FURTHER ORDERED that the reply to the objections shall be filed with the
8 Court and served on all parties no later than January 23, 2023.
9 Dated: December 19, 2022 p / /
10 on. Bernard G. Skomal
11 United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10086907. Public record. Not legal advice.