Turner v. Kijakazi

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JAMES T., 1 Case No.: 22cv0694-SBC

12 Plaintiff,

ORDER RESOLVING JOINT

13 v. MOTION FOR JUDICIAL REVIEW

IN FAVOR OF PLAINTIFF AND

14 KILOLO KIJAKAZI, Acting

REMANDING TO THE

Commissioner of Social Security,

15 COMMISSIONER

Defendant.

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[ECF NO. 20]

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18 James T. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405(g) seeking

19 judicial review of the final administrative decision of the Commissioner of the Social

20 Security Administration (“Commissioner”) regarding the denial of Plaintiff’s application

21 for disability benefits and supplemental security income. (ECF No. 1.) The Administrative

22 Law Judge (“ALJ”) found that Plaintiff was not disabled and denied Plaintiff’s claim for

23 benefits from April 1, 2018, through the date of the decision, April 15, 2021. (AR at 38.)

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1 Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security

27 cases under 42 U.S.C. § 405(g)] will refer to any non-government parties by using only

their first name and last initial.”

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1 Now pending before the Court is the parties’ Joint Motion for Judicial Review, filed on

2 February 27, 2023. (ECF No. 20.)

3 After considering the parties’ submissions, the administrative record, and the

4 applicable law, for the reasons stated below, the Court REVERSES the Commissioner’s

5 decision, and REMANDS the matter to the Commissioner for further administrative action

6 consistent with the findings presented herein.

7 I. PROCEDURAL BACKGROUND

8 On December 12, 2018, Plaintiff filed a Title II application for Social Security

9 Disability Insurance, in which he alleged a disability beginning on April 1, 2018. (ECF No.

10 11 at 208-211 [Administrative Record “AR”].) The Commissioner denied Plaintiff’s claim

11 initially on June 5, 2019, and on reconsideration on August 26, 20192. (AR at 83, 111.) On

12 October 25, 2019, Plaintiff filed a written request for a de novo hearing. (Id. at 117-118.)

13 ALJ James Delphey presided over the hearing on March 9, 2021. (AR at 44-71.) Plaintiff

14 appeared at the hearing via telephone, represented by his counsel, Brian Mosich. (Id.)

15 Plaintiff and Vocational Expert, Robin Scher, testified at the hearing. (Id.)

16 On April 15, 2021, the ALJ issued an unfavorable decision denying Plaintiff’s

17 request for disability benefits. (AR at 23-25.) On April 11, 2022, the Appeals Council

18 denied Plaintiff’s request for review. (Id. at 1-5.) On that date, the ALJ’s decision became

19 the final decision of the Commissioner. (42 U.S.C. § 405(h).) Having exhausted all

20 administrative remedies, Plaintiff brought this timely civil action, seeking judicial review

21 pursuant to 42 U.S.C. § 405(g). (See ECF No. 1.)

22 II. SUMMARY OF THE ALJ’S FINDINGS

23 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential

24 evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff had

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27 2 The ALJ’s decision states the reconsideration decision issued on August 9, 2019. (AR at

26.) The Administrative Record, however, states the decision issued on August 26, 2019.

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1 not engaged in substantial gainful activity since April 1, 2018, the alleged onset date. (AR

2 at 28.) At step two, the ALJ found that Plaintiff had the following severe impairments: (1)

3 vestibular disorder NOS; (2) hypertension; and (3) migraine headaches. (Id.) Plaintiff also

4 had non-severe impairments of asthma, left ulna fracture status post ORIF, obesity, anxiety,

5 and depressive disorder. (Id. at 29.) The ALJ found the impairments as non-severe because

6 “. . . they did not have more than a minimal effect on the claimant’s ability to do basic work

7 activities.” (Id.) The ALJ proceeded to consider Plaintiff’s impairments at step three of the

8 sequential process.

9 At step three, the ALJ found that Plaintiff did not have an impairment or combination

10 of impairments that met or medically equaled one of the impairments listed in the relevant

11 section of the Commissioner’s Listing of Impairments3. (AR at 32.) Regarding vestibular

12 disorder NOS, the ALJ stated that “[Plaintiff] does not have disturbance of labyrinthine-

13 vestibular function characterized by a history of frequent attacks of balance, disturbance,

14 tinnitus, and progressive loss of hearing with disturbed function of vestibular labyrinth

15 demonstrated by caloric or other vestibular tests and hearing loss established by

16 audiometry. His disequilibrium stabilized with physical therapy and medication. He does

17 not require an assistive device to walk.” (Id.) Regarding Plaintiff’s hypertension, the ALJ

18 stated that “. . . there is no evidence in the medical file of a specific body system so affected

19 as to meet a listing in the instant case.” (Id.) The ALJ also stated that “there is no indication

20 that the claimant’s migraine headaches, alone or in combination with any other impairment,

21 has given rise to a condition of listing-level severity (SSR 19-4p).” (Id.)

22 When a claimant’s impairments, or combination of impairments, do not meet the

23 criteria of a listed impairment, as was the case here, the ALJ next determines the claimant’s

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3 If the claimant’s impairment or combination of impairments is of a severity to meet or

27 medically equal the criteria of a listing and meets the duration requirement (20 CFR §§

404.1509 and 416.909), the claimant is deemed disabled. If it does not, the analysis

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1 residual functional capacity (“RFC”), i.e., the ability to do physical and mental work

2 activities despite the claimant’s impairments. (AR at 27-28.) Step four then considers

3 whether the claimant is not disabled because he has the RFC to do past relevant work, and

4 step five looks at the claimant’s ability to do any other work considering his RFC, age,

5 education, and work experience. (Id. at 29)

6 The ALJ determined at step four that Plaintiff is unable to perform any past relevant

7 work. (AR at 37.) The ALJ concluded, however, that considering Plaintiff’s age, education,

8 work experience and RFC, “. . . there were jobs that existed in significant numbers in the

9 national economy that the claimant could have performed through the date last insured.”

10 (Id. at 23.) The ALJ accepted the testimony of the vocational expert, who said Plaintiff

11 could perform the requirements of Food Service Worker, Hospital (D.O.T. 319.677-014),

12 Sandwich Maker (D.O.T. 317.664-010), and Sweeper/Cleaner, Industrial (D.O.T. 389.683-

13 010). (Id. at 37-38.)

14 In reaching his decision, the ALJ assessed Plaintiff as retaining the RFC to perform

15 a range of medium work as defined in as defined in 20 C.F.R. §§ 404.1567(c), with the

16 following limitations:

17 [Plaintiff] can occasionally climb ramps and stairs; can never climb ladders,

ropes, or scaffolding; can frequently balance, stoop, and crouch; can

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occasionally kneel and crawl; needs to avoid any work at unprotected heights

19 or adjacent to dangerous, moving machinery; needs to avoid any work that

involves driving a motor vehicle or any kind of vehicle as a duty of a job;

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needs to avoid concentrated exposure to dust, odors, fumes, or other

21 pulmonary irritants; needs to avoid flashing lights at the work station and any

lighting brighter than natural daylight or artificial lighting as is customary in

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a business, office, clinic, or factory environment; needs convenient restroom

23 access; and needs to avoid concentrated exposure to extreme cold or extreme

heat.

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(AR at 32.)

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The ALJ stated that the RFC assessment was based on “. . . all symptoms and the

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extent to which these symptoms can reasonably be accepted as consistent with the objective

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medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and

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1 SSR 16-3p.” (Id. at 32.) The ALJ also considered the medical opinions and prior

2 administrative medical findings in accordance with 20 CFR 404.1520c. (Id.) The ALJ,

3 therefore, concluded that Plaintiff was not disabled, as defined in the Social Security Act,

4 from the alleged onset date of April 1, 2018, through the date of the decision, April 15,

5 2021. (Id. at 38.)

6 III. ISSUE IN DISPUTE

7 The sole issue in dispute is whether the ALJ properly considered Plaintiff’s

8 subjective statement testimony. (ECF No. 20 at 4.)

9 IV. STANDARD OF REVIEW

10 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek

11 judicial review of the Commissioner’s final decision. 42 U.S.C. § 405(g). The scope of

12 judicial review is limited, and the denial of benefits will not be disturbed if it is supported

13 by substantial evidence in the record and contains no legal error. Id.; see also Woods v.

14 Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (Under 20 C.F.R. § 404.1520(c), “an ALJ

15 cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent

16 without providing an explanation supported by substantial evidence.”)

17 “Substantial evidence means more than a mere scintilla but less than a

18 preponderance. It means such relevant evidence as a reasonable mind might accept as

19 adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017)

20 (quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988));

21 see also Richardson v. Perales, 402 U.S. 389, 401 (1971).

22 An ALJ’s decision is reversed only if it “was not supported by substantial evidence

23 in the record as a whole or if the ALJ applied the wrong legal standard.” (Id.) “To determine

24 whether substantial evidence supports the ALJ’s determination, [the Court] must assess the

25 entire record, weighing the evidence both supporting and detracting from the agency’s

26 conclusion.” Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (citing Mayes v.

27 Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The Court “may not reweigh the evidence

28 or substitute [its] judgment for that of the ALJ.” (Id.) “The ALJ is responsible for

1 determining credibility, resolving conflicts in medical testimony, and for resolving

2 ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

3 Where the evidence is susceptible to more than one rational interpretation, the ALJ’s

4 decision must be upheld. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This

5 includes deferring to the ALJ’s credibility determinations and resolutions of evidentiary

6 conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Even if the reviewing court

7 finds that substantial evidence supports the ALJ’s conclusions, the court must set aside the

8 decision if the ALJ failed to apply the proper legal standards in weighing the evidence and

9 reaching his or her decision. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193

10 (9th Cir. 2004).

11 V. DISCUSSION

12 A. Whether the ALJ Failed to Properly Evaluate Plaintiff’s Subjective

Statements

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14 An ALJ assesses a claimant’s subjective statements regarding his or her symptoms

15 and limitations in two parts. §§ 404.1529(a), 416.929(a). First, an ALJ must determine

16 whether the claimant has presented objective medical evidence of an underlying

17 impairment that “could reasonably be expected to produce the pain or other symptoms

18 alleged.” (Id.). Second, if the first test is met and there is no evidence of malingering, “the

19 ALJ can reject the claimant’s testimony about the severity of her symptoms only by

20 offering specific, clear and convincing reasons for doing so.” Ragudo v. Saul, 411 F. Supp.

21 3d 1125, 1133-34 (S.D. Cal. 2019) (citing Smolen, 80 F.3d at 1281). “This is not an easy

22 requirement to meet: ‘The clear and convincing standard is the most demanding required

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in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting

24 Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

25 The ALJ “determine[s] credibility, resolve[s] conflicts in the testimony, and

26 resolve[s] ambiguities in the record.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d

27 1090, 1098 (9th Cir. 2014). “General findings are insufficient; rather, the ALJ must identify

28 what testimony is not credible and what evidence undermines the claimant’s complaints.”

1 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Reddick v. Chater,

2 157 F.3d 715, 722 (9th Cir. 1998)); Burrell v. Colvin, 775 F. 3d 1133, 1139 (9th Cir. 2014)

3 (finding error where the ALJ “never connected the medical record” to the claimant’s

4 testimony and did not make “a specific finding linking a lack of medical records to [the

5 claimant’s testimony about the intensity of her . . . symptoms”).

6 In assessing a claimant’s statements about his or her symptoms, the ALJ may

7 consider, inter alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the

8 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s daily

9 living activities; (4) the claimant’s work record; and (5) testimony from physicians or third

10 parties concerning the nature, severity, and effect of the claimant’s condition. Thomas v.

11 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also Ghanim v. Colvin, 763 F.3d 1154,

12 1163 (9th Cir. 2014) (listing factors) (citation omitted).

13 While “an ALJ may not reject a claimant’s subjective complaints based solely on a

14 lack of medical evidence to fully corroborate the alleged severity of pain . . . it is a factor

15 that the ALJ can consider in his credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 680

16 (9th Cir. 2005) (“[A]n ALJ may not reject a claimant’s subjective complaints based solely

17 on a lack of medical evidence to fully corroborate the alleged severity of pain.”); Light v.

18 Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997) (“[A] finding that the

19 claimant lacks credibility cannot be premised wholly on a lack of medical support for the

20 severity of his pain”); Social Security Ruling (SSR) 16-3p (S.S.A. Oct. 25, 2017) (SSA

21 adjudicators should “not disregard an individual’s statements about the intensity,

22 persistence, and limiting effects of symptoms solely because the objective medical

23 evidence does not substantiate the degree of impairment-related symptoms alleged by the

24 individual”).4

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27 4 Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the

term “credibility” from SSA “sub-regulatory policy” to “clarify that subjective symptom

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1 1. Plaintiff’s Subjective Statements

2 At the March 9, 2021 administrative hearing, the ALJ asked Plaintiff about his

3 physical impairments. (AR at 44-71.) Plaintiff testified to suffering from vertigo and

4 disequilibrium, and he stated that prescriptions and physical therapy have not helped, and

5 instead, have made his symptoms worse. (Id. at 51)

6 Plaintiff further testified to experiencing symptoms of disequilibrium “all day,” and

7 nausea most mornings. (AR at 60.) Plaintiff stated that he often lays on the floor and avoids

8 standing and walking. (Id.) Plaintiff’s nausea causes him to lose his appetite, and he

9 sometimes drinks Ensure (a protein supplement) because he worries about not eating

10 enough. (Id. at 61.) Plaintiff also experiences migraines approximately five days a week,

11 depending on how bright it is outside. (AR at 62.) Even with Plaintiff’s prescription

12 sunglasses, he gets nauseas from the light outside. (Id.)

13 To navigate around his apartment, Plaintiff uses the walls for support. (Id. at 61.)

14 Plaintiff can wash dishes, but sometimes he drops dishes, and if nauseous or dizzy, he gets

15 low to the floor to avoid falling. (Id. at 61.) Plaintiff stated he cannot lift anything because

16 of difficulty with bending down. (Id. at 62.) Without aid, Plaintiff can stand for two to three

17 minutes before falling. (Id. at 63.) If Plaintiff starts walking around, he has difficulty

18 balancing because the floor and walls feel like they are moving. (Id. at 52.) Plaintiff stated

19 that he broke his arm due to a fall, and that he fears further falls. (Id. at 53.)

20 Plaintiff also testified to being treated for anxiety and depression. (AR at 63.)

21 Plaintiff stated that not working and not being able to take care of himself makes him

22 depressed. (Id.) Plaintiff feels anxious going outside due to COVID and his health

23 conditions, so he spends most of his time inside “. . . because going outside isn’t in [his]

24 best interest.” (AR at 53.) Plaintiff stated that some days he just sits inside and cries. (Id.

25 at 56.)

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[and] more closely follow [SSA] regulatory language regarding symptom evaluation.”

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1 Additionally, Plaintiff will only walk outside of his apartment complex when his son

2 can help, and his son will grab his shirt or wrap something around Plaintiff to help him

3 walk and to avoid falls. (Id. at 56.) Plaintiff will not go anywhere unless his son can drive

4 him. (Id.) Plaintiff stated that he once took the bus to a medical appointment, but “[he] had

5 never been so scared in [his] life.” (Id. at 56-57.) Plaintiff’s son also helps Plaintiff with

6 paying bills, picking up groceries, and showering. (Id. at 52-62.)

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1. The ALJ’s Analysis of Plaintiff’s Subjective Statements

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The ALJ’s decision noted the following of Plaintiff’s alleged impairments:

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10 [Plaintiff] alleges that his impairments affect his ability to walk, balance, lift,

bend, and complete tasks. His alleged symptoms include vertigo,

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disequilibrium, dizziness, falls, imbalance, nausea, headaches, light

12 sensitivity, high blood pressure, depressed mood, tearfulness, and anxiety.

With regard to his daily activities, he alleges that he no longer drives, but he

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has a driver’s license. He alleges that he can barely tie his shoes. He can do

14 household chores.

15 (AR at 33.) The ALJ found that the record established medically determinable

16 impairments that could reasonably be expected to cause Plaintiff’s alleged symptoms, but

17 he rejected Plaintiff’s symptom testimony, finding that Plaintiff’s statements concerning

18 the intensity, persistence, and limiting effects of his symptoms were not fully supported by

19 the record. (AR at 34.)

20 In making the determination, the ALJ stated the following:

21 As for the claimant’s statements about the intensity, persistence, and limiting

effects of his symptoms, they are inconsistent because the objective medical

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evidence indicates that the claimant’s symptoms improved and stabilized with

23 treatment, including physical therapy and medication. He does not require an

assistive device to walk. His blood pressure is controlled with medication

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when he takes it as prescribed. His reported daily activities suggest a greater

25 level of functioning than alleged. His disequilibrium issues would preclude

the performance of his past relevant work as a Crane Operator, but would not

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preclude the performance of other medium work with appropriate postural

27 limitations and environmental protections. (Id. at 34-35.)

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1 This finding meets the threshold with respect to part one. Next, because there was

2 no finding that Plaintiff was malingering, the ALJ was required to make specific findings

3 stating clear and convincing reasons for discounting Plaintiff’s subjective statements. See

4 Smolen, 80 F.3d at 1283-84.

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a. Improvement with Treatment

6 First, the Court considers the ALJ’s determination that Plaintiff’s subjective

7 statements are inconsistent with the medical record because Plaintiff’s “. . . symptoms

8 improved and stabilized with treatment, including physical therapy and medication.” (AR

9 at 34.) Plaintiff argues that the ALJ’s conclusion is not supported by the record, and it does

10 not take Plaintiff’s subjective statements into account. (ECF No. 20 at 8.) Defendant

11 counters that the medical record does in fact show that Plaintiff’s impairments improved

12 with treatment, and the ALJ properly found that Plaintiff’s medical history is inconsistent

with his statements. (Id. at 13-14.)

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The issue, however, is whether the ALJ properly discounted Plaintiff’s statements.

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While “[c]ontradiction with the medical record is a sufficient basis for rejecting the

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claimant’s subjective testimony,” an ALJ must still “identify what testimony is not credible

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and what evidence undermines the claimant’s complaints.” Carmickle v. Commissioner,

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Social Sec. Admin, 533 F.3d 1155, 1161 (9th Cir. 2008); Reddick, 157 F.3d at 722. Here,

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in finding that Plaintiff’s subjective statements were inconsistent with the record because

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of improvement with treatment, the ALJ did not identify which statements he was rejecting,

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instead, the ALJ simply outlined Plaintiff’s medical history and highlighted that Plaintiff

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does not require an assistive device to walk. (See AR at 26-38); see Lambert v. Saul, 980

22 F.3d 1266, 1278 (9th Cir. 2020) (holding that even though the ALJ provided “a relatively

23 detailed overview of claimant’s medical history, providing a summary of medical evidence

24 ... is not the same as providing clear and convincing reasons for finding the claimant's

25 symptom testimony not credible”).

26 Furthermore, the ALJ failed to consider or properly reject Plaintiff’s statements that

27 his impairments have worsened with medication and physical therapy. (AR at 51-52.) At

28 the administrative hearing, Plaintiff stated that doctors have tried to treat his vertigo and

1 disequilibrium with different medications, but it has only made the problem worse. (Id. at

2 51.) Plaintiff also stated that balance therapy did not help “at all,” and that he lays on the

3 floor to avoid standing or walking. (Id at 52.) The ALJ merely stating that Plaintiff’s

4 symptoms improved and stabilized with treatment is not sufficient for rejecting Plaintiff’s

5 statements. The ALJ cannot discredit Plaintiff’s symptom testimony without identifying

6 which of Plaintiff’s statements are found incredible. Contreras v. Saul, 477 F.Supp.3d

7 1107, 1122 (S.D. Cal. 2020) (holding that because the ALJ failed to identify which

8 statements he found as incredible, the ALJ's summary of the medical record and opinion

evidence were legally insufficient to discount Plaintiff's credibility).

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Therefore, the Court finds the ALJ did not provide clear and convincing reasons for

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rejecting Plaintiff’s subjective statements.

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b. Daily Activities

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Next, the Court considers the ALJ’s determination that Plaintiff’s “. . . reported daily

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activities suggest a greater level of functioning than alleged,” and that he is “independent

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with daily activities and he can do household chores.” (AR at 31.) Plaintiff argues that the

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ALJ erred because he did not address which daily activities were allegedly inconsistent

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with the record. (ECF No. 20 at 8.) Defendant counters that the ALJ properly found

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Plaintiff’s statements inconsistent with the medical record because Plaintiff reported that

18 he was independent in his daily living activities at a consultative examination in May 2019.

19 (Id. at 13.)

20 As a preliminary matter, the Court does not find Defendant’s argument persuasive.

21 The issue before the Court is whether the ALJ properly discounted Plaintiff’s statements.

22 As previously discussed, while “[c]ontradiction with the medical record is a sufficient basis

23 for rejecting the claimant’s subjective testimony,” an ALJ must still “identify what

24 testimony is not credible and what evidence undermines the claimant’s complaints.”

Carmickle v. Commissioner, Social Sec. Admin, 533 F.3d 1155, 1161 (9th Cir. 2008);

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Reddick, 157 F.3d at 722.

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Here, in support of the finding that Plaintiff’s is higher functioning than alleged and

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independent in his daily activities, the ALJ merely cited to a May 2019 exam where

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1 Plaintiff reported that he was independent in his daily living activities. (See AR at 26-38.)

2 The ALJ highlighted the reported activities, noting that Plaintiff is capable of “dressing,

3 bathing, making meals, doing household chores, and shopping,” and that Plaintiff can walk

4 on his own, drive when it is not too sunny outside, manage his own money, watch

5 television, listen to music, play boardgames, and go out with his children.” (AR at 30.)

6 Plaintiff correctly argues that the ALJ failed to identify which statements were inconsistent

7 with the medical record when concluding that Plaintiff’s “. . . reported daily activities

8 suggest a greater level of functioning than alleged.” (AR at 34.) See Smolen, 80 F.3d at

1284 ([a]n ALJ “must state specifically which symptom testimony is not credible and what

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facts in the record lead to that conclusion.”); Rios v. Saul, No. 19CV704-LL, 2020 WL

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71080, at *5 (S.D. Cal. Jan. 7, 2020).

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Furthermore, the ALJ omitted relevant testimony from the 2021 administrative

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hearing that further defined the scope of Plaintiff’s activities. See Garrison v. Colvin, 759

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F.3d 995, 1016 (9th Cir. 2014) (finding ALJ’s selective daily activity findings were

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erroneous for failing to note plaintiff had to rest between activities, needed help to do the

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activities, and could not always complete the activities given her symptoms). For instance,

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Plaintiff stated this he is not able to care for himself as his son helps him with paying bills,

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picking up groceries, and showering. (AR at 52-62.) Regarding household chores, Plaintiff

18 stated that he “will wash a dish,” but he drops dishes if nauseous or dizzy. (AR at 61.)

19 Regarding making meals, Plaintiff stated that he sometimes drinks Ensure (a protein

20 supplement) because he worries about not eating enough. (Id. at 61.) Regarding driving,

21 Plaintiff will not drive, and he will not go anywhere unless his son can drive him. (Id. at

22 56.) Plaintiff also stated that he will only walk outside of his apartment complex when his

23 son can help, and his son will grab his shirt or wrap something around Plaintiff to help him

24 walk and to avoid falls. (Id.) Additionally, Plaintiff stated that he does not like to watch

television often because it makes him anxious. (Id. at 55.)

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The ALJ failed to consider Plaintiff’s stated limitations by only reciting Plaintiff’s

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capabilities from a 2019 consultative report. Furthermore, the ALJ did not identify which

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1 statements he was rejecting. Therefore, the Court finds the ALJ did not provide clear and

2 convincing reasons for rejecting Plaintiff’s subjective statements.

3 c. Need for Indoor Sunglasses

4 Plaintiff also argues that the ALJ erred because he did not consider Plaintiff’s need

5 for indoor sunglasses when “lights are too bright.” (ECF No. 20 at 9.) Defendant argues

6 that there is no medical evidence in support of the need to wear sunglasses inside, such as

7 a prescription or recommendation from a medical provider. (Id. at 15-16.)

8 While Defendant is correct, the Court finds that the ALJ still considered Plaintiff’s

sensitivity to light as a limitation resulting from Plaintiff’s migraines5. First, the ALJ found

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that Plaintiff’s migraine headaches constituted a severe impairment. (AR at 28.) Second,

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the ALJ accounted for Plaintiff’s migraines and sensitivity to light in his RFC

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determination, by including “. . . [Plaintiff] needs to avoid flashing lights at the work station

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and any lighting brighter than natural daylight or artificial lighting as is customary in a

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business, office, clinic, or factory environment. (AR at 32.)

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Moreover, Plaintiff failed to argue that he is more functionally limited than his RFC

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determination, and he does not explain how there would have been a different outcome if

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the ALJ had considered his need for indoor sunglasses. An error is harmless “where it is

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inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d

18 1104, 1115 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054

19 (9th Cir. 2006)). The Court finds that although the ALJ did not expressly consider

20 Plaintiff’s need for indoor sunglasses, the ALJ accounted for Plaintiff’s sensitivity to light.

21 Therefore, the Court finds that it was, at most, harmless error to omit discussion of

22 Plaintiff’s indoor sunglasses.

23 d. Assistive Device

24 Lastly, Plaintiff argues that the ALJ failed to take Plaintiff’s statements into account

regarding his difficulty with balancing, and therefore, the ALJ erred when concluding that

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5 At the administrative hearing, Plaintiff stated that he experiences migraines

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1 Plaintiff does not require an assistive device. (ECF No. 20 at 9.) Defendant maintains that

2 the ALJ properly considered all the conflicting evidence when carefully tailoring Plaintiff’s

3 RFC. (Id. at 12.)

4 Again, the issue before the Court is whether the ALJ properly discounted Plaintiff’s

5 statements. As previously discussed, while “[c]ontradiction with the medical record is a

6 sufficient basis for rejecting the claimant’s subjective testimony,” an ALJ must still

7 “identify what testimony is not credible and what evidence undermines the claimant’s

8 complaints.” Carmickle v. Commissioner, Social Sec. Admin, 533 F.3d 1155, 1161 (9th

Cir. 2008); Reddick, 157 F.3d at 722. Here, at step three, the ALJ concluded that Plaintiff’s

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disequilibrium stabilized with physical therapy and medication. (AR at 32.) In Plaintiff’s

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RFC determination, the ALJ found that Plaintiff “. . . can frequently balance, stoop, and

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crouch; can occasionally kneel and crawl.” (AR at 32.) The ALJ also noted that Plaintiff

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does not require an assistive device to walk. (Id.)

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However, Plaintiff has expressed many times that he has difficulty with balancing.

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For example, Plaintiff testified at the administrative hearing to experiencing symptoms of

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disequilibrium “all day,” and nausea most mornings. (AR at 60.) Plaintiff often lays on the

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floor and avoids standing and walking. (Id.) Plaintiff uses walls for support to navigate

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around his apartment. (Id.) Plaintiff gets low to the floor to avoid falling when feeling

18 nauseous or dizzy. (Id. at 52.) Plaintiff also stated that his son ties a shirt around him to

19 help him balance when walking outside. (AR at 56.) Without aid, Plaintiff stated that he

20 can stand for two to three minutes before he falls. (Id. at 63.) Plaintiff further stated that

21 has fallen a couple of times, and once broke his arm due to a fall. (Id. at 53.) In addition,

22 Plaintiff stated that doctors have tried to treat his vertigo and disequilibrium with

23 medication, but it has only made the problem worse. (Id. at 51.) Plaintiff stated that balance

24 therapy did not help “at all.” (Id.) Plaintiff fears further falls. (Id. at 63.)

The ALJ’s decision ignored Plaintiff’s statements regarding his difficulties with

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balancing, and simply concluded that Plaintiff can frequently balance and does not require

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an assistive device. Furthermore, the ALJ failed to identify which statements he was

27

rejecting. The ALJ cannot discredit Plaintiff’s symptom testimony without first identifying

28

1 which of Plaintiff’s statements are found incredible. Contreras v. Saul, 477 F.Supp.3d

2 1/1107, 1122 (S.D. Cal. 2020) (holding that because the ALJ failed to identify which

3 || statements he found as incredible, the ALJ's summary of the medical record and opinion

4 || evidence were legally insufficient to discount Plaintiff's credibility).

5 Therefore, the Court finds the ALJ did not provide clear and convincing reasons for

6 || rejecting Plaintiff's subjective statements.

7 VI. CONCLUSION

8 The last question for the Court is whether to remand for further administrative

9 proceedings or for the payment of benefits. “The decision of whether to remand a case for

10 || additional evidence, or simply to award benefits[,] is within the discretion of the court.”

|! Trevizo, 871 F.3d at 682 (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.

12 1987)). “Remand for further administrative proceedings is appropriate if enhancement of

13 || the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). A

14 || remand for an immediate award of benefits is appropriate only in rare circumstances.

15 Leon v, Berryhill, 874 F.3d 1130 (9th Cir. 2017). The Court concludes that “[t]he rare

16 || circumstances that result in a direct award of benefits are not present in this case.” (/d.)

17 Instead, the Court finds that further administrative proceedings would serve a

18 || meaningful purpose so that Plaintiffs subjective statements may be properly evaluated.

19 |! On remand, the ALJ must provide clear and convincing reasons for the weight given to

20 || Plaintiff’s statements as outlined above. Based on the foregoing reasons, the Court

21 || VACATES the ALJ’s decision and REMANDS this case for further administrative

22 proceedings consistent with the findings presented herein.

23 IT IS SO ORDERED.

24 || Dated: January 16, 2024

25

AF A.

28 United States Magistrate Judge