Beadle v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

DANIEL J. B., Ca se No. 3:21-cv-01303-AR

Plaintiff,

OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

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ARMISTEAD, Magistrate Judge

In this judicial review of the Commissioner’s final decision denying Social Security

benefits, plaintiff Daniel J. B. (his last name omitted for privacy) argues that the Administrative

Law Judge (ALJ) failed to provide specific, clear and convincing reasons for discounting his

subjective symptom testimony and that, therefore, the ALJ’s residual functional capacity (RFC)

assessment was not supported by substantial evidence. (Pl.’s Br. at 4-6, ECF No. 13.) Plaintiff

complains of chronic neck, shoulder, and back pain that radiates down his legs, requiring him to

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change positions frequently and that his symptoms are aggravated by most activities. As

explained below, the court agrees with plaintiff that the ALJ erred in discussing his subjective

symptom testimony. Accordingly, the court reverses the Commissioner’s decision and remands

this case for further proceedings consistent with this Opinion and Order.

ALJ’S DECISION

On April 16, 2019, plaintiff applied for a period of disability and Disability Insurance

Benefits (DIB) under Title II, alleging disability that began on January 23, 2019. (Tr. 136.) His

claims, which were denied initially and upon reconsideration, were considered by the ALJ at a

hearing on January 12, 2021. (Tr. 136.) In denying plaintiff’s application, the ALJ followed the

five-step sequential process.1 The ALJ found that plaintiff met the insured status requirements

through December 31, 2024, and at step one, that plaintiff had not engaged in substantial gainful

activity since January 23, 2019, his alleged onset date. (Tr. 138.) At step two, the ALJ found that

plaintiff has the severe impairments of lumbar degenerative disc disease with radiculopathy and

obesity. (Tr. 138.) At step three, the ALJ determined that plaintiff does not have an impairment, or

combination of impairments, that meet or medically equal a listed impairment. (Tr. 139.)

Particularly relevant to the court’s review is the ALJ’s assessment of plaintiff’s RFC. 20

C.F.R. § 404.1545. The ALJ identified medical-record evidence when discussing plaintiff’s

symptoms, including a long history of back pain, with L5 radiculopathy and lumbar degenerative

1 To determine a claimant’s disability, the ALJ must apply a five-step evaluation. See 20

C.F.R. § 404.1520(a)(4). If the ALJ finds that a claimant is either disabled or not disabled at any

step, the ALJ does not continue to the next step. Id.; see also Parra v. Astrue, 481 F.3d 742, 746–

47 (9th Cir. 2007) (discussing the five-step evaluation in detail).

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disc disease, and that plaintiff stopped working due to pain that radiates to his neck, shoulders, and

legs. (Tr. 140.) Nevertheless, the ALJ found that plaintiff’s statements about the intensity,

persistence, and limiting effects of his symptoms were not entirely consistent with the medical

evidence, his improvement with conservative treatment, and his reported activities. (Tr. 140.) The

ALJ then determined that plaintiff has the residual functional capacity (RFC) to perform light work

except that he is limited to occasional stooping. (Tr. 139.) The ALJ found that plaintiff is unable to

perform any past relevant work at step four. (Tr. 142.) Given plaintiff’s age, education, work

experience, and RFC, the ALJ found at step five that jobs exist in significant numbers in the

national economy that plaintiff can perform, including such representative occupations as

electronic accessories assembler, storage facility rental clerk, and deflective operator. (Tr. 142-43.)

STANDARD OF REVIEW

The district court must affirm the ALJ’s decision if the ALJ applied proper legal

standards and the findings are supported by substantial evidence in the record. 42 U.S.C. §

405(g); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Substantial evidence is “more than

a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal quotation

and citation omitted). To determine whether substantial evidence exists, the court must weigh

all the evidence, whether it supports or detracts from the ALJ’s decision. Garrison v. Colvin,

759 F.3d 995, 1009 (9th Cir. 2014).

DISCUSSION

A. The ALJ Failed to Identify Specific, Clear and Convincing Reasons to Discount

Plaintiff’s Testimony

To determine whether a claimant’s testimony regarding subjective pain or symptoms is

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credible, an ALJ must perform two stages of analysis. Trevizo v. Berryhill, 871 F.3d 664, 678

(9th Cir. 2017). The first stage is a threshold test in which the claimant must produce objective

medical evidence of an underlying impairment that could reasonably be expected to produce the

symptoms alleged. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014);

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage, absent

affirmative evidence that the claimant is malingering, the ALJ must provide clear and convincing

reasons for discounting the claimant’s testimony regarding the severity of the symptoms.

Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v.

Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ must make findings that are sufficiently

specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the

claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Factors the

ALJ may consider when making such credibility determinations include the objective medical

evidence, the claimant’s treatment history, the claimant’s daily activities, and inconsistencies in

testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013).

In his January 2020 function report, plaintiff indicated difficulty with lifting, climbing

stairs, bending, standing, kneeling, walking, squatting, sitting, and reaching. (Tr. 366.) Plaintiff

also reported that he must change position frequently and that he needs to periodically lay down

to alleviate pain. (Tr. 369.) Plaintiff stated that his chronic pain interferes with his concentration,

and that he takes oxycodone three times a day. (Tr. 368.) Plaintiff described that his medication

causes fogginess making it difficult to concentrate; physical activities increase his pain; he has

difficulty sleeping; he can perform most aspects of personal care, with pain; he can make simple

meals; and he can perform household chores in small increments. (Tr. 363-68.)

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At the hearing, plaintiff testified that he stopped working on January 23, 2019, due to his

worsening back pain. (Tr. 156-57.) Plaintiff testified that he has pain in his neck, shoulders, and

back that radiates down his right leg. (Tr. 157.) Plaintiff also explained that he has been

prescribed medication to cover the pain, and that acupuncture and chiropractic manipulation are

beneficial, but provide only temporary relief, and that he wakes up in pain every day. (Tr. 158.)

Plaintiff described that he is an elder at his church and that he participates in meeting three times

a week online. (Tr. 159-60.) Plaintiff stated that he has strength to mow the lawn and lift things,

but those activities cause pain for two days afterward. (Tr. 163.) Because sitting for too long is

painful and causes stiffness, plaintiff testified, he could not perform sedentary work. (Tr. 164.)

Plaintiff described that he needs to lie down for three quarters of the day twice a week. (Tr. 166.)

Plaintiff also testified that he has lost approximately 50 pounds and that his weight loss has not

alleviated his back pain. (Tr. 167.)

The ALJ’s decision provides three reasons for discounting plaintiff’s subjective symptom

testimony:2 (1) his level of activity was inconsistent with his allegations; (2) his conditions

improved with conservative treatment; and (3) his allegations were inconsistent with the

objective medical evidence. Plaintiff challenges the ALJ’s assessment of his subjective symptom

testimony, contending that the ALJ misinterpreted the objective evidence, that his activities are

not inconsistent with his testimony, and that the chiropractic manipulative therapy, acupuncture,

and massage therapy have not eliminated his pain. In plaintiff’s view, the RFC fails to include all

his limitations and, when his testimony is fully credited, the record establishes that he is disabled.

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2 There is no evidence of malingering.

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1. daily activities

An ALJ may rely on daily living activities as a basis for discounting subjective symptoms

if the claimant’s activities contradict his testimony or meet the threshold for transferable work

skills. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); Orn v. Astrue, 495 F.3d 625,

639 (9th Cir. 2007). For daily activities to discount subjective symptom testimony, the activities

need not be equivalent to full-time work; it is enough that the claimant’s activities “contradict

claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113. Claimants do not,

however, need to be utterly incapacitated to receive disability benefits, and an ability to complete

certain routine activities is insufficient to discount subjective symptom testimony. See id. at

1112-13 (noting that a “claimant need not vegetate in a dark room in order to be eligible for

benefits” (quotation marks omitted)).

The ALJ discounted plaintiff’s subjective symptom testimony because he can prepare

meals, perform household chores, drive a car, and go shopping. (Tr. 141, citing Tr. 363-65.)

Here, the ALJ did not explain how plaintiff’s ability to perform basic household chores

undermines his testimony, leaving the court to guess. (Tr. 141.) The ALJ did not find that

plaintiff spent a “substantial” portion of his day engaged in household chores or that these

activities are transferrable to a work environment. Ghanim, 763 F.3d at 1165; Holohan v.

Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[T]he ALJ must specifically identify the

testimony she or he finds not to be credible and must explain what evidence undermines the

testimony.”). Because the ALJ did not connect these activities to any symptom or the degree of

any symptom alleged by plaintiff, this fails to provide a specific, clear and convincing basis upon

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which to discount plaintiff’s subjective symptom testimony. See Felicia F. P. v. Comm’r Soc.

Sec. Admin., Case No. 3:21-cv-00889-AR, 2023 WL 1991530, at *3 (D. Or. Feb. 14, 2023).

The ALJ also discounted plaintiff’s subjective symptom testimony based on his report of

walking for four to five miles. (Tr. 140-41.) On December 10, 2019, plaintiff reported to Randall

Evans, D.C., that he “has been increasing his walking and had walked 4-5 miles.” (Tr. 140, citing

Tr. 1094.) The ALJ also discussed a treatment note from December 17, 2019, in which plaintiff

reported to Dr. Evans that “he had walked 4.5 miles two days prior,” and that he “felt better than

the last time he walked that far.” (Tr. 141, citing Tr. 1098.) Plaintiff argues that the ALJ’s

findings are not supported by substantial evidence because he also reported increased pain with

walking and his examinations showed tenderness to palpation and muscle spasms. (Pl. Reply at

4, citing Tr. 1094-96.) The court agrees with plaintiff here.

Although the ALJ accurately noted that plaintiff reported walking four to five miles on

two occasions, he also reported increased pain due to this activity, which is consistent with his

subjective allegations. For example, on December 10, 2019, plaintiff rated his pain at a seven on

a 10-point scale, and Dr. Evans noted plaintiff had mild neck and upper back pain, with mild to

moderate low back pain. (Tr. 1095.) And Dr. Evans’ examination showed several tests were

positive for low back pain, including straight-leg raise (SLR), squat and rise, Laguerre’s test, and

sacroiliac compression test. (Tr. 1095.) Dr. Evans’ examination also noted segmental joint

dysfunction on palpation at the L3-L5/S1 joints and pain with moderate muscle spasms. (Tr.

1095.) Dr. Evans further observed that plaintiff “appears to be in pain as [he] was guarded

moving on and off the exam table.” (Tr. 1095.)

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Dr. Evans’ treatment note from December 17, 2019, similarly shows mixed presentation.

As the ALJ correctly noted, plaintiff reported walking 4.5 miles, and that he felt better than he

did after his first attempt. (Tr. 1098.) However, plaintiff again rated his pain at a seven on a 10-

point scale, with mild neck and upper back pain and mild to moderate low back pain. (Tr. 1099.)

Dr. Evans’ examination again showed several tests were positive for low back pain, including

SLR, squat and rise, Laguerre’s test, FABER test, and sacroiliac compression test, and found

segmental joint dysfunction at the L3-L5/S1 joints and pain with moderate muscle spasms. (Tr.

1099.) Dr. Evans again observed that plaintiff appeared to be in pain transferring on and off the

examination table. (Tr. 1099.) As plaintiff aptly highlights, there is no additional evidence in the

record concerning how frequently plaintiff walked. Based on this limited evidence, the court

concludes that the two instances of plaintiff walking four to five miles which increased his pain

does not, on this record, amount to a specific, clear and convincing basis to reject plaintiff’s

subjective symptom testimony. See Felicia F. P., 2023 WL 1991530, at *4 (concluding that ALJ

erred in rejecting claimant’s testimony because she could walk 1.3 miles four times a week).

2. conservative treatment

The ALJ discounted plaintiff’s subjective symptom testimony based on his improvement

with conservative treatment, including physical therapy, chiropractic manipulative therapy, and

acupuncture. (Tr. 140.) In assessing subjective symptom testimony, an ALJ may properly rely

on the fact that only routine and conservative treatment has been prescribed. Johnson v. Shalala,

60 F.3d 1428, 1432 (9th Cir. 1995). “Conservative treatment” that includes “treat[ment] with an

over-the-counter pain medication” may be sufficient to discount a claimant’s allegations of

disabling symptoms. Parra, 481 F.3d at 751. Yet “treatment that advances to stronger,

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prescription medications” and includes other treatment modalities may not fairly be

characterized as “conservative.” See Banford v. Kijakazi, Case No. 2:21-cv-00785-EFB (SS),

2022 WL 4388390, at *4-5 (E.D. Cal. Sept. 22, 2022) (concluding ALJ erred in characterizing

claimant’s prescription medication, chiropractic treatment, physical therapy, and acupuncture as

conservative) (collecting cases).

In the decision, the ALJ discussed that plaintiff has a long history of back pain, and that a

January 19, 2019 lumbar MRI found an “L4-L5 moderate to severe right subarticular recess

stenosis primarily affecting the traversing right L5 nerve root secondary to a right parasagittal

disc protrusion.” (Tr. 140, citing Tr. 594.) The ALJ discussed that treatment notes in February

2019 showed plaintiff had an antalgic gait with decreased weight-bearing on the right lower

extremity, tenderness to the lumbar paraspinals, and decreased range of motion due to pain. (Tr.

140, citing Tr. 602.)

The ALJ acknowledged the objective evidence supporting plaintiff’s allegations, but he

characterized plaintiff’s treatment as “conservative” and made findings about plaintiff’s

condition that he saw as normal or improved. The ALJ noted that plaintiff received physical

therapy and reported decreased low back in February 2019 (Tr. 140, citing Tr. 755); received a

right L4-5 epidural steroid injection in April 2019 and reported he was “modestly improved” (Tr.

140, citing Tr. 591); in September 2019, had an intact gait, full range of motion in the back,

normal range of motion in his neck, without tenderness, palpable spasms, or pain (Tr. 140, citing

Tr. 768); and, in October 2019, had a normal range of motion in his neck and no muscle

tenderness on palpation (Tr. 140, citing Tr. 774). The ALJ also discussed that plaintiff received,

chiropractic adjustments and acupuncture, and that the progress notes show improved cervical

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range of motion and without pain (Tr. 140, citing 1081, 1088); had a normal gait, normal

strength, and no lower extremity symptoms with seated leg raise (Tr. 140, citing Tr. 777, 783,

794); and that plaintiff reached “pre-injury” status in December 2019 (Tr. 140, citing 1081,

1088).

The court concludes that the ALJ’s analysis here is flawed for two primary reasons. First,

plaintiff’s treatment cannot fairly be characterized as “conservative.” In addition to the epidural

steroid injections noted by the ALJ, plaintiff has been prescribed a variety of medications for his

pain, including gabapentin, flexeril, percocet, oxycodone, lyrica, robaxin, and nortriplyine. (Tr.

746, 763, 782, 788, 791, 795.) After those treatments failed to relieve his pain, plaintiff sought

physical therapy, chiropractic manipulation, and acupuncture. The ALJ offers no explanation for

why he deemed these various treatment modalities as conservative for low back pain, and the

rationale is unsupported by Ninth Circuit case law. See Revels v. Berryhill, 874 F.3d 648, 667

(9th Cir. 2017) (holding ALJ erred in rejecting claimant’s testimony based on receiving

conservative treatment that included facet and epidural injections in back and neck and assorted

prescription medications); Garrison, 759 F.3d at 1015 n.20 (stating that epidural shots in neck

and back did not qualify as “conservative treatment”); see also Banford, 2022 WL 4388390, at

*4 (concluding epidural and steroid injections, pain medications, chiropractic treatment, physical

therapy, and acupuncture were not conservative treatment).

Second, the ALJ’s findings are not supported by substantial evidence. For example, the

ALJ noted that plaintiff reported to his physical therapist that his pain level was a two on a 10-

point scale in February 2019. (Tr. 140, citing Tr. 755.) Contrary to the ALJ’s finding, this

statement is identified as a “short term goal.” (Tr. 755.) Additionally, plaintiff described his pain

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as a “fire” sensation along his right leg when he stands up, that his pain varies from a three to

nine on a 10-point scale, and that his pain is aggravated by standing and walking. (Tr. 752.)

Contrary to the ALJ’s findings, plaintiff reported in March 2019 that he was “doing pretty poorly

because of the pain.” (Tr. 757.) In May 2019, plaintiff reported that the epidural steroid injection

he received in April was “minimally helpful.” (Tr. 768.) In November 2019, plaintiff was

continuing to report that his pain was “constant” and interfered with most activities. (Tr. 786-87.)

Although the ALJ correctly noted that in December 2019 plaintiff described that his lower back

had reached “pre-injury status,” that reference appears to relate to a minor motor vehicle accident

he sustained in October 2019. (Tr. 1081, 1088.)

The Commissioner argues that the ALJ’s interpretation of the evidence is reasonable, and

that plaintiff simply offers a different version. The court disagrees. The ALJ’s analysis fails to

link specific evidence to the supplied reasons and fails to account for plaintiff’s waxing and

waning pain symptoms. As described above, in December 2019, plaintiff’s neck and cervical

spine appeared to improve (see Tr. 1017 noting plaintiff reporting whiplash due to motor vehicle

accident), yet he continued to report pain at a seven on a 10-point scale, with muscle spasms and

joint dysfunction in his lumbar spine. (Tr. 1081, 1088, 1095, 1099.) The court concludes that

ALJ’s reasoning is not supported by substantial evidence and that his rationale fails to provide a

clear and convincing basis for discounting plaintiff’s testimony.

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3. inconsistency with medical record

Inconsistency with medical evidence may provide a clear and convincing reason to

discount a claimant’s testimony, so long as it is not the only reason. Trevizo, 871 F.3d at 679.

Because the ALJ has failed to provide other clear and convincing reasons sufficient to discount

plaintiff’s subjective symptom testimony about his limitations, a lack of objective medical

evidence cannot supply the sole basis for discounting his testimony. Burch v. Barnhart, 400 F.3d

676, 680 (9th Cir. 2005).

In summary, the ALJ’s reasons for discounting plaintiff’s subjective symptom testimony

are not supported by substantial evidence and fail to provide specific, clear and convincing

support for the ALJ’s adverse determination. Accordingly, the ALJ has erred.

B. Remedy

The decision whether to remand for further proceedings or for the immediate payment of

benefits lies within the discretion of the court. Treichler, 775 F.3d at 1101-02. A remand for

award of benefits is generally appropriate when: (1) the ALJ failed to provide legally sufficient

reasons for rejecting evidence; (2) the record has been fully developed, there are no outstanding

issues that must be resolved, and further administrative proceedings would not be useful; and (3)

after crediting the relevant evidence, “the record, taken as a whole, leaves not the slightest

uncertainty” concerning disability. Id. at 1100-01 (internal quotation marks and citations

omitted); see also Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (summarizing the

standard for determining the proper remedy). Even when the credit-as-true standard is met, the

district court retains the “flexibility to remand for further proceedings when the record as a

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whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of

the Social Security Act.” Garrison, 759 F.3d at 1021.

Remanding for further proceedings is the proper course here. The court concludes that the

ALJ’s evaluation of plaintiff’s subjective symptom testimony is not supported by substantial

evidence, viewing the entire record. The court also finds that the record contains conflicts and

ambiguities, including the medical opinion evidence—unchallenged by plaintiff—from Clarence

Ballard, M.D., and Susan Johnson, M.D., finding that plaintiff can perform light work. (Tr. 183-

84, 200-01.) Additionally, the record indicates that an independent medical examination (IME)

was due to be performed on December 6, 2019. (Tr. 1082, 1095.) If such an examination was

completed, the results do not appear in the record and are not mentioned by plaintiff. In light of

the conflicts between plaintiff’s reports of pain and the medical evidence, physical capacity

testing may be warranted on remand if the IME was not conducted, or if the results cannot be

obtained. Therefore, remanding for further proceedings would serve a useful purpose. On

remand, the ALJ must: (1) reassess plaintiff’s subjective symptom testimony de novo and accept

the limitations described therein or provide specific, clear and convincing reasons for their

rejection; (2) obtain the results of the IME or undertake physical capacity testing, if warranted;

and (3) conduct any further necessary proceedings to complete the record, including offering a

new hearing with vocational expert testimony and making a step-five findings if required, and

issue a new decision.

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CONCLUSION

For the above reasons, the Commissioner’s final decision is REVERSED and

REMANDED for further administrative proceedings.

DATED: March 17, 2023

JEFFREY ARNISTEAD

United States'Magistrate Judge

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