# Beadle v. Commissioner Social Security Administration

> District Court, D. Oregon · March 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10395744

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10395744

## How later opinions describe it (automated extraction)

- noting that a “claimant need not vegetate in a dark room in order to be eligible for benefits” (quotation marks omitted)
- 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
- discussing the five-step evaluation in detail

## Opinion text

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.
_____________________________________

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

Page 1 – OPINION AND ORDER
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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