ALJ’s erroneous failure to specify reasons for 19 | rejecting claimant testimony “will usually not be harmless’’
How later courts described this case
- ALJ’s erroneous failure to specify reasons for 19 | rejecting claimant testimony “will usually not be harmless’’
- legal error where ALJ failed to identify specific 16 || testimony found not credible and failed to “link that testimony to the particular 17 || parts of the record supporting [ALJ’s] non-credibility determination’’
- ALJ 22 may consider claimant’s attempts at seeking work in assessing subjective 23 complaints
- ALJ error harmless if (1) inconsequential to 22 || the ultimate nondisability determination; or (2) ALJ’s path may reasonably be 23 || discerned despite the error
Written by the judges who cited it.
The opinion
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 1 of 23 Page ID #:1331
1
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UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11 MARK L.,1 Case No. 2:20-cv-09987-JC
12 Plaintiff,
MEMORANDUM OPINION AND
13 v. ORDER OF REMAND
14
KILOLO KIJAKAZI,2 Acting [DOCKET NOS. 22, 25]
15 Commissioner of Social Security
Administration,
16
Defendant.
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I. SUMMARY
20
On October 29, 2020, plaintiff filed a Complaint seeking review of the
21
Commissioner of Social Security’s denial of plaintiff’s application for benefits.
22
The parties have consented to proceed before the undersigned United States
23
Magistrate Judge.
24
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1Plaintiff’s name is partially redacted to protect his privacy in compliance with Federal
26 Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
Administration and Case Management of the Judicial Conference of the United States.
27
28 2Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Acting Commissioner
Kilolo Kijakazi is hereby substituted in as the defendant in this action.
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 2 of 23 Page ID #:1332
1 This matter is before the Court on the parties’ cross motions for summary
2 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”)
3 (collectively “Motions”). The Court has taken the Motions under submission
4 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; Case Management Order
5 ¶ 5.
6 Based on the record as a whole and the applicable law, the decision of the
7 Commissioner is REVERSED AND REMANDED for further proceedings
8 consistent with this Memorandum Opinion and Order of Remand.
9 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE
10 DECISION
11 On February 16, 2017, plaintiff filed an application for Disability Insurance
12 Benefits, alleging disability beginning on March 25, 2016, due to chronic back
13 pain, post spinal fusion, with severe nerve damage to the lower back, lower
14 extremity nerve damage with burning, and pain, and depression. (Administrative
15 Record (“AR”) 241-46, 276). The ALJ subsequently examined the medical record
16 and held two hearings during which he heard testimony from plaintiff (who was
17 represented by counsel) and a vocational expert. (AR 42-53, 60-110).
18 On March 23, 2020, the ALJ determined that plaintiff was not disabled
19 through the date of the decision. (AR 42-53). Specifically, the ALJ found:
20 (1) plaintiff suffered from severe degenerative disc disease of the lumbar spine
21 with a history of L5-S1 fusion, but nonsevere depression (AR 44-47);
22 (2) plaintiff’s impairments, considered individually or in combination, did not meet
23 or medically equal a listed impairment (AR 47); (3) plaintiff retained the residual
24 functional capacity to perform light work (20 C.F.R. § 404.1567(b)) with
25 additional limitations3 (AR 47-52); (4) plaintiff could perform his past relevant
26
27 3The ALJ determined that plaintiff: (1) can lift, carry, push or pull 25 pounds
occasionally and 25 pounds frequently; (2) can occasionally climb ladders, ropes, and scaffolds,
28
(continued...)
2
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 3 of 23 Page ID #:1333
1 work as a sales representative, sales person, sales officer, and sales manager as
2 actually and generally performed (AR 52 (adopting vocational expert testimony at
3 AR 81-82, 95-96, 101-108)); and (5) plaintiff’s statements regarding the intensity,
4 persistence, and limiting effects of subjective symptoms were not entirely
5 consistent with the medical evidence and other evidence in the record (AR 48).
6 On September 16, 2020, the Appeals Council denied plaintiff’s application
7 for review after consideration of additional evidence which mostly post-dated the
8 ALJ’s adverse decision. (AR 1-29).
9 III. APPLICABLE LEGAL STANDARDS
10 A. Administrative Evaluation of Disability Claims
11 To qualify for disability benefits, a claimant must show that he is unable “to
12 engage in any substantial gainful activity by reason of any medically determinable
13 physical or mental impairment which can be expected to result in death or which
14 has lasted or can be expected to last for a continuous period of not less than 12
15 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42
16 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded by
17 regulation on other grounds; 20 C.F.R. § 404.1505(a). To be considered disabled,
18 a claimant must have an impairment of such severity that he is incapable of
19 performing work the claimant previously performed (“past relevant work”) as well
20 as any other “work which exists in the national economy.” Tackett v. Apfel, 180
21 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).
22 To assess whether a claimant is disabled, an ALJ is required to use the five-
23 step sequential evaluation process set forth in Social Security regulations. See
24 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)
25 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520,
26
27 3(...continued)
and frequently climb ramps and stairs; (3) can occasionally stoop and crawl and frequently
28
balance, kneel, and crouch (AR 47).
3
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 4of23 Page ID #:1334
1 || 416.920). The claimant has the burden of proof at steps one through four — i.e.,
2 || determination of whether the claimant was engaging in substantial gainful activity
3 || (step 1), has a sufficiently severe impairment (step 2), has an impairment or
4 || combination of impairments that meets or medically equals one of the conditions
5 | listed in 20 C.F.R. Part 404, Subpart P, Appendix | (“‘Listings’’) (step 3), and
6 || retains the residual functional capacity to perform past relevant work (step 4).
7 || Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The
8 || Commissioner has the burden of proof at step five — i.e., establishing that the
9 || claimant could perform other work in the national economy. Id.
10 B. Federal Court Review of Social Security Disability Decisions
11 A federal court may set aside a denial of benefits only when the
12 || Commissioner’s “final decision” was “based on legal error or not supported by
13 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
14 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard
15 || of review in disability cases is “highly deferential.” Rounds v. Comm’r of Soc.
16 || Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation marks
17 || omitted). Thus, an ALJ’s decision must be upheld if the evidence could reasonably
18 || support either affirming or reversing the decision. Trevizo, 871 F.3d at 674-75
19 || (citations omitted). Even when an ALJ’s decision contains error, it must be
20 || affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec. Admin.,
21 || 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to
22 || the ultimate nondisability determination; or (2) ALJ’s path may reasonably be
23 || discerned despite the error) (citation and quotation marks omitted).
24 Substantial evidence is “such relevant evidence as a reasonable mind might
25 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining
26 || “substantial evidence” as “more than a mere scintilla, but less than a
27 || preponderance’) (citation and quotation marks omitted). When determining
28 || whether substantial evidence supports an ALJ’s finding, a court “must consider the
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page5of23 Page ID #:1335
1 || entire record as a whole, weighing both the evidence that supports and the evidence
2 || that detracts from the Commissioner’s conclusion[.|’ Garrison v. Colvin, 759 F.3d
3 || 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).
4 Federal courts review only the reasoning the ALJ provided, and may not
5 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”
6 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need
7 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s
8 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,
9 || 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).
10 A reviewing court may not conclude that an error was harmless based on
11 || independent findings gleaned from the administrative record. Brown-Hunter, 806
12 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently
13 || conclude that an error was harmless, a remand for additional investigation or
14 || explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173
15 | (9th Cir. 2015) (citations omitted).
16 Finally, where as here, the Appeals Council “considers new evidence in
17 || deciding whether to review a decision of the ALJ, that evidence becomes part of
18 || the administrative record, which the district court must consider when reviewing
19 || the Commissioner’s final decision for substantial evidence.” Brewes v.
20 || Commissioner, 682 F.3d 1157, 1163 (9th Cir. 2012). “[A]s a practical matter, the
21 || final decision of the Commissioner includes the Appeals Council’s denial of
22 || review, and the additional evidence considered by that body is evidence upon
23 || which the findings and decision complained of are based.” Id. (citations and
24 || internal quotations marks omitted). Thus, in reviewing the ALJ’s decision, the
25 || Court has reviewed the evidence submitted for the first time to the Appeals
26 || Council.
27 | ///
28 ///
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 6 of 23 Page ID #:1336
1 IV. DISCUSSION
2 Plaintiff contends that the ALJ erred in evaluating the subjective testimony
3 and statements of plaintiff and his wife. See Plaintiff’s Motion at 7-24. For the
4 reasons discussed below, the Court finds error meriting remand.4
5 A. Summary of the Relevant Medical Evidence
6 An January 2017 treatment note reports that plaintiff underwent a lumbar
7 spine fusion with spinal cord stimulation following a work injury in 1989, with
8 resultant chronic back and lumbar radicular pain for which he was taking opioids
9 (Morphine). (AR 391, 397). He had undergone four back surgeries and had a
10 spinal cord stimulator implant placed twice. (AR 391, 397). His urine drug
11 screens were normal (negative for drugs of abuse and positive for pain medications
12 prescribed), and CURES reflected no suspicious activity regarding his opioid use.
13 (AR 390-91, 410, 481, 504, 513, 636). Plaintiff had been in the pain management
14 program at Kaiser Permanente, which he had completed in October 2016, and had
15 no history of addiction. (AR 391, 411).
16 Since 2015, plaintiff’s Morphine had been decreased, an epidural injection
17 had been ordered, plaintiff had declined physical therapy because in the past it had
18 worsened his symptoms, acupuncture and trigger point injections had been
19 recommended, and a trial of Gabapentin had not helped. (AR 391; see also AR
20 409 (December 2016 note reporting trial of Prednisone for plaintiff’s neuropathic
21 pain); AR 473 (March 2016 note reporting plaintiff was continuing to wean down
22 his Morphine); AR 497 (July 2015 note reporting decreased Morphine dose); AR
23 508 (May 2015 note reporting Toradol injection was given)). Plaintiff also
24
25 4After the briefing was complete in this matter, plaintiff filed a “Notice of New
Authority” citing Collins v. Yellen, 141 S. Ct. 1761, 1783-84 (2021), which plaintiff suggests
26
casts doubt on the constitutionality of the appointment of the Commissioner of Social Security.
27 To the extent plaintiff is attempting to raise an additiona; claim for relief, the Court is not
persuaded by the authority to alter the order herein. See, e.g., Toni D.M. v. Kijakazi, 2022 WL
28
423494, at *2-*4 (C.D. Cal. Jan. 5, 2022) (rejecting such a claim).
6
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 7 of 23 Page ID #:1337
1 reported that while his spine stimulator had helped with his leg pain, it had not
2 helped with his chronic low back pain. (AR 391).
3 As of November 2015, plaintiff reported that his pain was controlled “okay”
4 with no adverse side effects, and that he was able to do his activities of daily living
5 independently. (AR 481). Plaintiff reported he might have weaned his Morphine
6 down too quickly because he had an increase in pain. (AR 481). His medications
7 were continued. (AR 481). In January 2016, he reported that his back pain was
8 controlled on his current dose of Morphine, and his examination showed no local
9 tenderness to the lumbosacral spine but slightly painful and reduced lumbar spine
10 range of motion. (AR 478-79). In March 2016, he reported worsening lower back
11 pain and had tenderness on examination for which he was referred to physical
12 therapy. (AR 469-71). He then reportedly was exercising 80 minutes per week at
13 a moderate to strenuous level. (AR 468). He had been sent home from his job due
14 to his pain. (AR 469). In August 2016, plaintiff reportedly was concerned about
15 finding employment because he was struggling to find a place that would allow
16 him to attend weekly pain managements classes. (AR 437).
17 A January 2017 pain clinic note for spinal cord stimulator evaluation reports
18 that plaintiff described his “legs going out” at times causing him to fall. (AR
19 405).5 The stimulator and generator seemed to be functioning but plaintiff was not
20 receiving adequate relief. (AR 405). He was recommended for neurosurgical
21 evaluation for possible implant/generator change. (AR 405). Plaintiff had been
22 having ongoing problems with getting his stimulator replaced or fixed because it
23 was not working properly, as evidenced by burning in his legs after about 20
24 minutes of walking or standing. (AR 406-15; see also AR 409 (December 2016
25
26
5Plaintiff had presented in July 2015, following a fall which lacerated his face and broke
27 his nose. (AR 492-95). By August 2015, he had recovered and felt fine. (AR 484). Plaintiff
had reported another fall in May 2016, that had resulted in rib pain. (AR 457-58). He reported
28
another fall in September 2017, and one in May 2018. (AR 704, 918).
7
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 8 of 23 Page ID #:1338
1 treatment note reporting abnormal right leg pain and pain in the lower back with
2 straight leg raising, spine tenderness, and limited range of motion); AR 412
3 (October 2016 note reporting that the stimulator was not capturing the area of
4 plaintiff’s pain so it was reprogrammed); AR 506 (June 2015 note reporting the
5 stimulator was not working as well as it used to work).
6 As of February 2017, plaintiff reportedly was exercising 120 minutes per
7 week at a moderate to strenuous level. (AR 391-92). He had bilateral tenderness
8 to palpation of the lower lumbar paraspinals and positive straight leg raising
9 testing. (AR 394). His major depressive disorder (moderate, recurrent) reportedly
10 was controlled. (AR 394).6
11 Plaintiff reported to a neurosurgeon on February 1, 2017, that he had
12 constant, worsening chronic back pain, intermittent leg weakness where he falls,
13 and that he last fell three weeks earlier and broke a tooth. (AR 400). Plaintiff
14 wanted a new spinal cord stimulator, and reported that he had not used his current
15 one in three weeks. (AR 400). A CT scan showed broad-based mild/moderate disc
16 protrusion and moderate central canal stenosis at L2-L3, broad-based mild disc
17 protrusion with facet hypertrophy and mild central canal stenosis at L4-L5, and the
18 L5-S1 fusion appeared stable without significant stenosis. (AR 402). His surgeon
19 had no surgical option to recommend and referred plaintiff for a second opinion.
20 (AR 402).
21 Plaintiff consulted with another spine surgeon for the second opinion on
22 February 14, 2017, for possible fusion, removal and replacement of his stimulator,
23 and to explore other options for his worsening, constant chronic low back and leg
24 pain. (AR 397). His surgical history included L5-S1 fusion, hardware removal,
25 and revision fusion, and placement of a spinal cord stimulator twice. (AR 397).
26
27 6There are treatment notes for 12 sessions of group psychotherapy for developing ways to
cope with chronic pain, and 12 sessions of physical therapy for chronic low back pain, which
28
ended in December 2016. (AR 416-36, 444-47, 464-66).
8
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 9 of 23 Page ID #:1339
1 He reported that he had burning in his thighs with standing or sitting too long, and
2 hip pain with lying on his side, sitting, or standing too long. (AR 397). He had
3 been managed “conservatively” by his primary care physician and physical
4 medicine (therapy) without satisfactory relief. (AR 397). He was seeking a new
5 spinal cord stimulator. (AR 397). On examination, he had an antalgic gait and
6 limited range of motion in his back. (AR 398-99). The surgeon opined that
7 additional fusion surgery was not in plaintiff’s best interest and surgery would not
8 improve his back or leg pain, so plaintiff should follow up with pain management
9 (for which he was referred) to see if he is a candidate for a new spinal cord
10 stimulator. (AR 399).
11 Plaintiff complained to his primary doctor in March 2017, about the cost of
12 urine drug screening for his opioid prescriptions. (AR 630). In May 2017,
13 plaintiff reported that he had been evaluated for state disability and was looking for
14 work but “wonder[ed] if he [could] do the job [w]ith restrictions.” (AR 635). He
15 reported that his spine stimulator still was not helping much with his leg pain. (AR
16 635). Again, the possibility of replacing the stimulator was discussed and deferred
17 to pain management. (AR 635).
18 Consultative examiner Dr. Bong Doan prepared a Complete Psychiatric
19 Evaluation dated April 24, 2017, which found plaintiff would have no limitations
20 or difficulties. (AR 583-87). State agency physicians reviewed the record initially
21 in March and May 2017, and on reconsideration in June 2017, and found plaintiff
22 capable of the residual functional capacity the ALJ adopted. (AR 111-34).
23 When plaintiff returned to his primary doctor in June 2017, he reported that
24 the state had denied him permanent disability. (AR 640). Plaintiff again reported
25 difficulty getting approval for a new stimulator and that he was “getting the run
26 around.” (AR 640). Plaintiff also said he could not afford the copays for pain
27 management which could not be waived. (AR 641).
28 ///
9
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1 In July 2017, plaintiff reported that for the past eight to nine months he had
2 burning pain down his legs when he is sitting or standing, and that his spinal
3 stimulator was not working for the pain when it had worked for leg pain in the
4 past. (AR 660). He was taking Morphine and Gabapentin. (AR 660). In August
5 2017, he reported that the stimulator was not working and had not worked for a
6 year and a half, resulting in him having sciatica 24/7. (AR 677). He would be
7 referred to an orthopedic spine surgeon for removal/replacement. (AR 678, 699).
8 After some scheduling difficulty, plaintiff’s primary doctor emailed him in October
9 2017, with information to schedule an appointment and indicated that she had
10 extended plaintiff’s off work note and refilled his Morphine. (AR 718).
11 In October 2017, plaintiff was given a “pain block service” to evaluate his
12 stimulator, where it is noted that a paddle for the stimulator was not working and
13 he was approved for surgery. (AR 726-78). He reportedly then was exercising 30
14 minutes three to four days per week at a moderate to strenuous level. (AR 726).
15 Plaintiff underwent surgery to replace his stimulator on December 15, 2017. (AR
16 777-824). As of December 21, 2017, plaintiff reported doing well without
17 operative complications. (AR 829). He then was not exercising. (AR 829).
18 However, plaintiff followed up reporting that the stimulator needed adjustment
19 because it only helped marginally with leg pain and gave no help for back pain.
20 (AR 834).
21 In January 2018, plaintiff still reportedly was not exercising at all. (AR
22 845). However, in February 2018, when plaintiff’s obesity was discussed, plaintiff
23 reportedly was exercising 420 minutes per week at a moderate to strenuous level.
24 (AR 861).
25 Plaintiff had been off work but his primary doctor ordered plaintiff on
26 modified activity at work and home from March 22, 2018 through June 20, 2018,
27 with no twisting, climbing, no lifting more than 10 pounds, prolonged walking,
28 ///
10
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1 sitting, or standing, and no driving heavy equipment. (AR 896-97; see also AR
2 1058 (extending modified duty through March 13, 2019)).
3 In May 2018, plaintiff reported that he had fallen two weeks earlier and that
4 his back pain had worsened since the fall. (AR 916). He had tenderness and
5 positive straight leg raising on examination. (AR 916).
6 Plaintiff presented to the emergency room on November 20, 2018, reporting
7 radiating low back pain with burning for which Morphine was not helping. (AR
8 991). On examination, he had diffuse tenderness and was unable to test straight leg
9 raising due to pain. (AR 995). He was given a Solu-Medrol injection and
10 Prednisone. (AR 998). He followed up with his regular doctor requesting to refill
11 his Morphine precription. (AR 1012).
12 In January 2019, plaintiff requested to update his disability letter, reporting
13 another fall and that he has burning in his legs all the time. (AR 1041). He
14 reportedly had difficulty updating his stimulator. (AR 1041-42). Plaintiff returned
15 in March 2019, requesting completion of disability forms. (AR 1130). Plaintiff
16 requested a MRI study to explore further treatment options since his new
17 stimulator reportedly was MRI compatible. (AR 1131). Plaintiff was told many of
18 the forms potentially would be based on his self report. (AR 1131). In April 2019,
19 plaintiff was cleared for a MRI subject to confirmation by the manufacturer. (AR
20 1161). There are no MRI results in the record.
21 Orthopedic surgeon and consultative examiner Dr. Timothy Ross reviewed
22 x-rays and prepared a Comprehensive Orthopedic Consultation dated July 24,
23 2019. (AR 1191-96). Plaintiff complained of sharp, burning, aching pain in his
24 mid to lower back and into his lower extremities, worsened by standing, walking,
25 sitting, and driving, for which he sometimes used back support. (AR 1191). He
26 reportedly could walk one block. (AR 1191). On examination, plaintiff had a slow
27 gait, normal cervical spine examination, limited range of motion in the
28 thoracolumbar spine with “limited effort,” moderate subjective tenderness in the
11
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 12 of 23 Page ID #:1342
1 midline of the thoracic spine, mid and lower lumbar spine, and paraspinal muscles,
2 and tenderness to light touch. (AR 1192). Plaintiff also reported pain emanating
3 from his back during a maneuver (Waddell’s sign) which did not involve any
4 actual motion of his back. (AR 1192, 1195). Dr. Ross noted that despite the
5 “extensive” treatment and “inordinate” amount of medical attention plaintiff had
6 over the past two years, plaintiff reported no improvement. (AR 1194-95). Dr.
7 Ross opined that the available x-rays demonstrated “no obvious significant
8 pathological process.” (AR 1195). Dr. Ross opined that plaintiff had “more than
9 sufficient” invasive treatment intervention, and that plaintiff’s best option would be
10 via weight loss, regular exercise, and weaning off habit-forming medications to
11 non-scheduled substances. (AR 1196). However, Dr. Ross also endorsed
12 permanent restrictions for weight-bearing over six hours during an eight-hour day,
13 carrying more than 25 pounds frequently, or lifting and carrying more than 50
14 pounds occasionally, and no repetitive bending and stooping. (AR 1196).
15 Plaintiff presented to the emergency room on November 21, 2019,
16 complaining of chronic back pain for which he had taken Morphine without relief
17 and requesting pain medication. (AR 1206-07, 1212). His blood pressure was
18 185/88. (AR 1211). The doctor explained to plaintiff that they were not trained to
19 manage chronic pain and plaintiff allegedly screamed “get the fuck out.” (AR
20 1212). Plaintiff reportedly got up and changed into his clothes, with brisk
21 movements and normal gait (which the doctor opined did not appear hindered by
22 discomfort), and left. (AR 1212). Staff reported that plaintiff had been aggressive
23 and threatening. (AR 1212, 1217).
24 After the ALJ’s adverse decision, plaintiff provided treatment records to the
25 Appeals Council from Dr. Brian Boyd who treated plaintiff in 2010, and resumed
26 treating plaintiff in February 2020, for his pain and depression. (AR 15-29).
27 Plaintiff reported very limited daily activities, that he could sit for 15 minutes,
28 stand for 10 minutes, walk one block, and occasionally help with dishes or grocery
12
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 13 of 23 Page ID #:1343
1 shop. (AR 15). Plaintiff had tried a number of pain medications and currently was
2 taking Morphine, Paxil, Metoprolol, Atorvastin, and Trazodone. (AR 15-16). On
3 examination, plaintiff had diminished range of motion in the lumbar spine, trigger
4 points, normal muscle bulk with no spasticity or rigidity, normal muscle strength,
5 intact sensation, and slow antalgic gait. (AR 16). Dr. Boyd assessed chronic low
6 back pain and syndrome with poor pain control, and major depression (recurrent),
7 obesity, and high blood pressure. (AR 17). Dr. Boyd ordered a urine toxicology
8 test and pain management agreement and continued plaintiff’s medications. (AR
9 17).
10 Plaintiff returned in February 2020, reporting that his pain control was pretty
11 much the same. (AR 18). He was prescribed Methadone, Dilaudid, and Morphine.
12 (AR 19). In March 2020, plaintiff reported that his pain control was worse in that
13 he had more burning in his legs and frequent stimulator use. (AR 21). His
14 medications were continued and he was prescribed Cymbalta instead of Paxil. (AR
15 22).
16 In April 2020, plaintiff reported he had not noticed depression as much but
17 his wife said he was up an down, and plaintiff reported his pain control was the
18 same. (AR 24). His pain control was “unfortunately fairly stable, with clear
19 neuropathic component.” (AR 25). His Methadone was increased and his
20 Morphine was tapered down. (AR 26).
21 In May 2020, plaintiff reported that his burning in his legs was “going down
22 quite a bit,” and his overall pain was also a “little bit less” (at a level of 4-5 of 10
23 post medication), and he reported that his mood was better but his wife said he was
24 still moody/irritable. (AR 27). He reported that he then could walk one or two
25 blocks. (AR 27). His medications were refilled. (AR 29).
26 New records submitted to the Appeals Council included a Residual
27 Functional Capacity Questionnaire from Dr. Jeremy Smith dated May 22, 2020,
28 which opined that since February 2016, and due to lumbar stenosis, lumbago,
13
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 14 of 23 Page ID #:1344
1 thoracalgia, radiculopathy, and myelopathy, plaintiff: (1) could sit for less than a
2 half hour at a time and stand/walk less than a half hour a time in an eight-hour day,
3 for a total of less than two hours each of sitting and standing/walking in an eight-
4 hour day; (2) could rarely lift up to 20 pounds; (3) frequently use his hands;
5 (4) rarely bend/stoop, or reach up and forward; (5) never squat, crawl, crouch, or
6 kneel; (6) never work at unprotected heights or around moving machinery;
7 (7) rarely tolerate marked temperature changes or drive; and (8) occasionally
8 tolerate exposure to dust, fumes, irritants, and noise. (AR 9-10). Dr. Smith
9 estimated plaintiff’s pain as “extreme,” and noted objective signs of pain included
10 x-rays, muscle spasm, muscle spasticity, hyperflexia, and decreased stamina
11 strength. (AR 10). It is not clear whether Dr. Smith treated plaintiff – there are no
12 treatment records from Dr. Smith.
13 B. The ALJ Erred in Considering Plaintiff’s Subjective Statements
14 and Testimony
15 Plaintiff contends that the ALJ erred by failing to provide adequate reasons
16 for rejecting plaintiff’s testimony and statements. The Court agrees.
17 1. Summary of Plaintiff’s Testimony and Statements
18 Plaintiff testified that he had back problems since 1998, when he suffered a
19 work related injury. (AR 68). He since had undergone six back surgeries,
20 including implantation of a nerve stimulator, and said he has constant back pain for
21 which he took a type of Morphine four times a day for four years, and
22 subsequently he was taking Methadone. (AR 68-70, 98). These medications cause
23 drowsiness and impair his ability to focus. (AR 98). Plaintiff used his nerve
24 stimulator “all the time.” (AR 78, 100). Plaintiff said that no further surgery was
25 planned due in part to the scar tissue he had and because he could not get a MRI.
26 (AR 72, 98). At the time of the second hearing, plaintiff also was using a back
27 brace. (AR 99).
28 ///
14
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 15 of 23 Page ID #:1345
1 Plaintiff also testified that he has had depression since around 2000, for
2 which he previously saw a psychiatrist and currently was taking an antidepressant
3 (Paxil) prescribed by his regular doctor. (AR 74-75, 101). He said his depression
4 stemmed from his pain and that he could not seem to get medication that works for
5 him. (AR 80, 100-01).
6 In terms of his limitations, plaintiff testified that his legs keep “going out
7 from underneath him” causing him to fall about every other month. (AR 72, 99).
8 He also has numbness, burning, and sciatica in both legs. (AR 73-74, 97).
9 Plaintiff said he tries not to lift more than 23 pounds (the weight of his grandson),
10 he can stand no more than 30 minutes before needing to sit or lie down, and can sit
11 for 30 minutes. (AR 72-73). He said he could not bend to tie his shoes. (AR 78-
12 79).7
13 Plaintiff admitted that he could help with dishes or small chores at home for
14 up to 15 minutes at a time, but he spends most of his days lying down. (AR 76-77,
15 99). He could drive a car for short “jaunts.” (AR 76). He could visit his daughter
16 and his mother once a month or so. (AR 79).8
17
18
7In his Disability Report - Adult form, plaintiff reported that he had severe nerve damage
19 to his lower back and was unable to sit or stand for longer than 15 minutes at a time, his nerve
damage causes him to fall, he has severe burning in his hips and thighs, constant shooting pain
20
down his legs, and chronic back pain which limit his mobility and cause him to be depressed.
21 (AR 276).
22 8In a Function Report - Adult form dated March 18, 2017, plaintiff reported that his legs
go out from underneath him occasionally, he cannot sit or stand for long periods of time without
23
pain, he must always switch positions during the day and takes short walks, he occasionally will
24 watch his grandchild (feed him, change his diapers), he could feed his pets, make his own easy
meals, wash dishes, dust, go for short walk, drive short distances, shop for light groceries or
25 prescriptions, watch television, read, fix things, and visit others a couple times a week, but he
has trouble dressing and taking care of his feet. (AR 285-93). He reported that he could walk
26
around the block, uses a walker sometimes that was prescribed 10 years earlier, can pay attention
27 for up to an hour, and could follow instructions. (AR 290-91).
28
(continued...)
15
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 16 of 23 Page ID #:1346
1 2. Pertinent Law
2 When determining disability, an ALJ is required to consider a claimant’s
3 impairment-related pain and other subjective symptoms at each step of the
4 sequential evaluation process. 20 C.F.R. §§ 404.1529(a), (d). Accordingly, when
5 a claimant presents “objective medical evidence of an underlying impairment
6 which might reasonably produce the pain or other symptoms [the claimant]
7 alleged,” the ALJ is required to determine the extent to which the claimant’s
8 statements regarding the intensity, persistence, and limiting effects of his or her
9 subjective symptoms (“subjective statements” or “subjective complaints”) are
10 consistent with the record evidence as a whole and, consequently, whether any of
11 the individual’s symptom-related functional limitations and restrictions are likely
12 to reduce the claimant’s capacity to perform work-related activities. 20 C.F.R.
13 §§ 404.1529(a), (c)(4); SSR 16-3p, 2017 WL 5180304, at *4-*10.9
14 When an individual’s subjective statements are inconsistent with other
15 evidence in the record, an ALJ may give less weight to such statements and, in
16 turn, find that the individual’s symptoms are less likely to reduce the claimant’s
17 capacity to perform work-related activities. See SSR 16-3p, 2017 WL 5180304, at
18 *8. In such cases, when there is no affirmative finding of malingering, an ALJ
19 may “reject” or give less weight to the individual’s subjective statements “only by
20 providing specific, clear, and convincing reasons for doing so.” Brown-Hunter,
21
22 8(...continued)
Plaintiff’s wife completed the function report dated March 19, 2017, reporting similar
23
limitations and abilities. (AR 315-22 (reporting that plaintiff is in constant pain, cannot sit, stand
24 or walk for long periods of time, finds short relief from lying down, has limited mobility,
difficulty bending, leg weakness/falling, trouble climbing stairs, and needs help with his feet.)).
25
9Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the
26
term “credibility” from SSA “sub-regulatory policy[ ]” in order to “clarify that subjective
27 symptom evaluation is not an examination of an individual's [overall character or truthfulness] ...
[and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See SSR
28
16-3p, 2017 WL 5180304, at *1-*2, *10-*11.
16
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 17of23 Page ID #:1347
1 || 806 F.3d at 488-89. This requirement is very difficult to satisfy. See Trevizo, 871
2 || F.3d at 678 (“The clear and convincing standard is the most demanding required in
3 || Social Security cases.”) (citation and quotation marks omitted).
4 An ALJ’s decision “must contain specific reasons” supported by substantial
5 || evidence in the record for giving less weight to a claimant’s statements. SSR
6 || 16-3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each subjective
7 || statement being rejected and the particular evidence in the record which
8 || purportedly undermines the statement. Treichler, 775 F.3d at 1103. “General
9 || findings are insufficient|.|’’ Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)
10 || (citations omitted).
11 If an ALJ’s evaluation of a claimant’s statements is reasonable and is
12 || supported by substantial evidence, it is not the court’s role to second-guess it. See
13 || Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). When
14 | an ALJ fails properly to discuss a claimant’s subjective complaints, however, the
15 || error may not be considered harmless “unless [the Court] can confidently conclude
16 || that no reasonable ALJ, when fully crediting the testimony, could have reached a
17 || different disability determination.” Stout, 454 F.3d at 1056; see also
18 || Brown-Hunter, 806 F.3d at 492 (ALJ’s erroneous failure to specify reasons for
19 | rejecting claimant testimony “will usually not be harmless’’).
20 3. Analysis
21 The ALJ summarized plaintiff's subjective statements and testimony
22 || regarding his impairments and found that plaintiff's medically determinable
23 || impairments could reasonably be expected to cause the alleged symptoms, but his
24 || statements concerning the intensity, persistence, and limiting effects of the
25 || symptoms were not entirely consistent with the medical evidence and other
26 || evidence of record. (AR 48). The ALJ concluded that the medical record
27 || supported the medium limitations the Dr. Ross opined would exist, but settled on
28 || the residual functional capacity found by the state agency physicians purportedly
17
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 18 of 23 Page ID #:1348
1 “to give [plaintiff] every possible advantage and to give every consideration to his
2 pain.” (AR 50).
3 Although the ALJ provided four reasons to discount plaintiff’s statements
4 and testimony suggesting greater limitations, they are not specific, clear, and
5 convincing reasons supported by substantial evidence.
6 First, the ALJ reasoned that the medical record did not support such
7 limitations. However, in so doing, the ALJ incorrectly characterized the record in
8 several respects. The ALJ observed:
9 [A]lthough the claimant has a distant history of 4 [four] back
10 surgeries, there is little evidence of any recent surgery. In fact, other
11 than continuous opioid dependence, the only other significant
12 treatment appear[s] to be implantation of a new spinal cord stimulator.
13 (AR 48). As detailed above, the replacement of the spinal cord stimulator in
14 December 2017 was a surgical procedure, not simply “treatment,” and doctors
15 recommended no additional surgeries to address plaintiff’s condition. (AR 399,
16 402, 777-824). The Court also observes that while plaintiff continuously used
17 opioids to treat his chronic pain over the disability period, he did so as prescribed
18 under the supervision of his pain management doctor and then his primary care
19 physician, after completing a pain management program, and none of his treatment
20 providers indicated that plaintiff did not need these medications. See AR 1180
21 (plaintiff’s doctor reporting that plaintiff was stable on his “very large” Morphine
22 dose for many years, and had worsening symptoms at attempted lower dosages);
23 compare AR 1196 (consultative examiner suggesting that plaintiff should wean off
24 narcotics entirely).
25 The ALJ went on to summarize medical examinations in the record where
26 plaintiff had normal gait, coordination, range of motion, reflexes, and no weakness
27 or atrophy. (AR 48-51 (citing, inter alia, AR 39-93, 401-02, 409, 413, 469, 590,
28 593, 626, 708, 716-17, 726-27, 777, 897, 1130-31, 1180, 1206, 1208, 1211-12,
18
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 19o0f23 Page ID #:1349
1 || 1217, 1194)). The ALJ mentioned one examination in May 2018, where plaintiff
2 || had positive straight leg raising and lumbothoracic tenderness (AR 916), which the
3 || ALJ dismissed because x-rays suggested only mild degenerative disc and joint
4 || disease throughout” (AR 919) (AR 49). The ALJ did not mention other
5 || examination findings detailed above that included slow, antalgic gait, lumbosacral
6 || tenderness, limited range of motion, or positive straight leg raising testing. The
7 || ALJ also cited the February 1, 2017 treatment note where plaintiff reportedly had
8 || not used his spinal stimulator for three weeks (since he last fell) (AR 400),
9 || suggesting perhaps that plaintiff did not need it and had not fallen without using it
10 || (see AR 48), which does not acknowledge that plaintiff had been having issues
11 || with the stimulator not working which led to the stimulator being replaced.
12 The ALJ referenced a February 27, 2017 treatment note’s “Social History
13 |) Narrative” which states, “New to Kaiser Permanente 7-2011. Patient’s wife and
14 || Daughter are also my patients. 2 kids/works in sales. ..,” to suggest that plaintiff
15 | then was working in sales. (AR 49 (citing AR 393)). However, this “Social
16 || History Narrative” is repeated throughout the Kaiser Permanente records, and it
17 || appears not to be a current observation. See, e.g., AR 510 (March 2015 note
18 || containing narrative from a time when plaintiff was working).
19 The ALJ’s incorrect characterizations of the record undercut the validity of
20 || the ALJ’s decision and alone warrant a remand. See Regennitter v. Commissioner
21 || of Social Security Administration, 166 F.3d 1294, 1297 (9th Cir. 1999) (finding
22 || based on “inaccurate characterization of the evidence” not “clear and convincing”
23 || reason for rejecting claimant’s statements regarding symptoms; an ALJ’s material
24 || mischaracterization of the record can warrant remand); Reddick, 157 F.3d at
25 || 722-23 (error for ALJ to paraphrase record evidence in manner that is “not entirely
26 || accurate regarding the content or tone of the record’’); Gallant v. Heckler, 753 F.2d
27 || 1450, 1456 (9th Cir. 1984) (ALJ may not selectively rely on only the portions of
28 || record which support non-disability) (citations omitted); see generally Vincent v.
19
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 200f 23 Page ID #:1350
1 || Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (ALJ must provide an
2 || explanation when he rejects “significant probative evidence’) (citation omitted).
3 Second, the ALJ reasoned that plaintiff's activities of daily living were
4 || inconsistent with his symptoms, since plaintiff had admitted to providers
5 || exercising three to four days a week for 30 minutes at a “moderate to strenuous
6 || level,” and that he could drive, walk, go out alone, shop, and his wife stated that he
7 || could watch his grandchild, watch television, do light housework (dishes, feed the
8 || pets, prepare meals). See AR 50 (citing 315-26 (Function Report - Adult - Third
9 || Party)). A general finding that plaintiffs collective daily activities are inconsistent
10 || with the alleged severity of some or all of plaintiff's subjective complaints is not
11 || sufficiently specific to permit the Court to determine whether the ALJ rejected
12 || plaintiff's subjective complaints on any permissible ground. See Treichler, 775
13 | F.3d at 1103 (‘ALJ must identify the testimony that was not credible, and specify
14 || ‘what evidence undermines the claimant’s complaints.”) (citation omitted); see also
15 || Brown-Hunter, 806 F.3d at 494 (legal error where ALJ failed to identify specific
16 || testimony found not credible and failed to “link that testimony to the particular
17 || parts of the record supporting [ALJ’s] non-credibility determination’’) (citation
18 | omitted). In this case, the daily activities the ALJ cited are not so extensive on
19 | their own to clearly undermine plaintiffs testimony and statements without further
20 || explanation. See Revels v. Berryhill, 874 F.3d 648, 667-68 (9th Cir. 2017) (ALJ
21 | erred in finding disparity between claimant’s reported daily activities and symptom
22 || testimony where the claimant indicated she could use the bathroom, brush her
23 || teeth, wash her face, take her children to school, wash dishes, do laundry, sweep,
24 || mop, vacuum, go to doctor’s appointments, visit her mother and father, cook, shop,
25 || get gas, and feed her dogs, where the ALJ failed to acknowledge the claimant’s
26 || explanation consistent with her symptom testimony that she could complete only
27 || some tasks in a single day and regularly needed to take breaks).
28 ///
20
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 21 of 23 Page ID #:1351
1 Third, the ALJ cited plaintiff’s “minimal” treatment history and the
2 conservative nature of his treatment as inconsistent with his symptoms. (AR 51).
3 The ALJ reasoned that, during the disability period, other than needing narcotic
4 refills and a new spinal stimulator device, there was little evidence of any
5 “significant” treatment – plaintiff had nearly a seven month gap in treatment
6 between April and November 2019, when plaintiff was seen for pain medication,
7 and plaintiff reportedly had not sought alternative pain relief (e.g., acupuncture,
8 chiropractic treatment, or a back brace). (AR 51). The ALJ also noted that
9 plaintiff’s spine fusion surgery was in the distant past, there was little consideration
10 for further surgery, and there was little, if any, mention that plaintiff was referred
11 for epidural injections. (AR 51).
12 As summarized above, plaintiff had surgery to replace his stimulator during
13 the disability period (AR 777-824), and both he and the consultative examiner
14 noted that he wore a back brace (see AR 99, 1191). Plaintiff had also attended
15 physical therapy for his condition, and acupuncture and epidural injections were
16 recommended. (AR 391). In any event, it is doubtful that plaintiff’s treatment
17 with narcotic pain medications may properly be characterized as “conservative”
18 within the meaning of Ninth Circuit jurisprudence. See, e.g., Shepard v. Colvin,
19 2015 WL 9490094, at *7 (E.D. Cal. Dec. 30, 2015) (“[p]rior cases in the Ninth
20 Circuit have found that treatment was conservative when the claimant’s pain was
21 adequately treated with over-the-counter medication and other minimal treatment,”
22 however where record reflected heavy reliance on Tramadol and Oxycodone and
23 other prescriptions for pain, record did not support finding that treatment was
24 “conservative”) (internal citations omitted; citing for comparison Lapeirre-Gutt v.
25 Astrue, 382 Fed. App’x 662, 664 (9th Cir. 2010) (doubting whether “copious
26 amounts of narcotic pain medication” as well as nerve blocks and trigger point
27 injections was “conservative” treatment)); Childress v. Colvin, 2014 WL 4629593,
28 at *12 (N.D. Cal. Sept. 16, 2014) (“[i]t is not obvious whether the consistent use of
21
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 22 of 23 Page ID #:1352
1 [Norco] (for several years) is ‘conservative’ or in conflict with Plaintiff’s pain
2 testimony”); Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014)
3 (“It would be difficult to fault Plaintiff for overly conservative treatment when he
4 has been prescribed strong narcotic pain medications”); cf. Osenbrock v. Apfel,
5 240 F.3d 1157, 1166 (9th Cir. 2001) (observing that treatment corroborating
6 allegations of severe and unremitting pain may include a strong Codeine or
7 Morphine basic analgesic). As detailed above, plaintiff regularly sought treatment
8 with his providers throughout the alleged disability period, and consistently was
9 prescribed narcotic pain medication. Contrary to the ALJ’s assertion, it appears
10 that plaintiff’s treatment has not been “conservative” within the meaning of Ninth
11 Circuit jurisprudence.
12 Fourth, the ALJ cited to alleged inconsistencies between plaintiff’s
13 testimony and statements to discount his symptoms, e.g., plaintiff stated that he had
14 not used his spinal stimulator in three weeks and had not had any falls (AR 400),
15 records from May of 2017 report that plaintiff was looking for work (AR 635), and
16 there was little mention of any recent back surgery in the record. (AR 51). As
17 explained above, plaintiff did not use his spine stimulator because it was
18 malfunctioning, and he had surgery to replace the stimulator during the disability
19 period. (AR 400, 777-824). While plaintiff commented that he was seeking state
20 disability and “looking for work but employers wonder if he can do the job [w]ith
21 restrictions” (AR 635), see Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (ALJ
22 may consider claimant’s attempts at seeking work in assessing subjective
23 complaints), that report alone is not sufficient to uphold the ALJ’s reasoning given
24 the ALJ’s mischaracterizations of the record. See Regennitter, 155 F.3d at 1297.
25 ///
26 ///
27 ///
28 ///
22
Case 2:20-cv-09987-JC Document 27 Filed 02/26/22 Page 23 of 23 Page ID #:1353
1 For the foregoing reasons, the ALJ failed to provide specific, clear and
2 convincing reasons supported by the record to discount plaintiff’s subjective
3 symptom statements.10
4 V. CONCLUSION
5 For the foregoing reasons, the decision of the Commissioner of Social
6 Security is reversed in part, and this matter is remanded for further administrative
7 action consistent with this Opinion.11
8 DATED: February 26, 2022
9 ______________/s/___________________
Honorable Jacqueline Chooljian
10
UNITED STATES MAGISTRATE JUDGE
11
12
13
14
15
16
17
18
19
20
21
22
10The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s
23
decision, except insofar as to determine that a reversal and remand for immediate payment of
24 benefits would not be appropriate.
25 11When a court reverses an administrative determination, “the proper course, except in
rare circumstances, is to remand to the agency for additional investigation or explanation.”
26
Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and
27 quotations omitted). Remand is proper where, as here, additional administrative proceedings
could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th
28
Cir.1989).
23