# Paul Andrew Rentsch v. Andrew M. Saul

> District Court, C.D. California · February 21, 2023

URL: https://www.frixlaw.com/law-library/cases/9982492

## Case

- **Court:** District Court, C.D. California
- **Decided:** February 21, 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/9982492

## How later opinions describe it (automated extraction)

- discussing evaluation of opinion 21 evidence under the new regulations
- describing five-step sequential evaluation process

## Opinion text

Case 5:21-cv-00176-JC Document 30 Filed 02/21/23 Page 1 of 20 Page ID #:1549

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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11 PAUL A. R.,1 Case No. 5:21-cv-00176-JC

12 Plaintiff,
MEMORANDUM OPINION AND
13 v. ORDER OF REMAND
14
KILOLO KIJAKAZI, Acting
15 Commissioner of Social Security,
16 Defendant.
17
18 I. SUMMARY
19 On January 31, 2021, plaintiff filed a Complaint seeking review of the
20 Commissioner of Social Security’s denial of plaintiff’s application for benefits.
21 The parties have consented to proceed before the undersigned United States
22 Magistrate Judge.
23 This matter is before the Court on the parties’ cross motions for summary
24 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”)
25 (collectively “Motions”). The Court has taken the Motions under submission
26
27 1Plaintiff’s name is partially redacted to protect his privacy in compliance with Federal
Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
28 Administration and Case Management of the Judicial Conference of the United States.
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1 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; July 15, 2021 Case
2 Management Order ¶ 5.
3 Based on the record as a whole and the applicable law, the decision of the
4 Commissioner is REVERSED AND REMANDED for further proceedings
5 consistent with this Memorandum Opinion and Order of Remand.
6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE
7 DECISION
8 On August 17, 2018, plaintiff filed an application for Disability Insurance
9 Benefits, alleging disability beginning on September 25, 2017, due to “TIA”
10 (transient ischemic attack), stroke, occluded vertebral artery, and a compressed
11 cervical disc. (Administrative Record (“AR”) 181-82, 224). An Administrative
12 Law Judge (“ALJ”) subsequently examined the medical record and heard
13 testimony from plaintiff (who was represented by counsel) and a vocational expert.
14 (AR 15-27, 33-64).
15 On June 26, 2020, the ALJ determined that plaintiff was not disabled
16 through the date of the decision. (AR 15-27). Specifically, the ALJ found:
17 (1) plaintiff suffered from the following severe impairments: status post TIAs in
18 September 2017 and April 2018, hypertension, cervical spine herniated disc and
19 cervical degenerative disc disease (AR 18); (2) plaintiff’s impairments, considered
20 individually or in combination, did not meet or medically equal a listed impairment
21 (AR 18); (3) plaintiff retained the residual functional capacity to perform medium
22 work (20 C.F.R. § 404.1567(c)) with additional limitations2 (AR 18-26 (adopting
23 capacity consistent with available medical opinions at AR 71-73, 83-85, 979-80
24 about what plaintiff can do despite his impairments (20 C.F.R. § 1513(a)(2)),
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2The ALJ determined that plaintiff would be limited to: (1) frequent bilateral upper
27 extremity pushing and/or pulling, and frequent climbing of ramps and stairs, balancing, stooping,
kneeling, crouching and crawling; (2) no climbing of ladders, ropes or scaffolds; and (3) no work
28 around hazards such as dangerous, moving machinery and unprotected heights. (AR 18-19).
2
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1 which the ALJ found were “partially persuasive”)3); (4) plaintiff could perform his
2 past relevant work as a Public Safety Dispatcher (DOT 379.362-010, sedentary,
3 semi-skilled work) (AR 26 (adopting vocational expert testimony at 59-60)4); and
4 (5) plaintiff’s statements regarding the intensity, persistence, and limiting effects of
5 subjective symptoms were not entirely consistent with the medical evidence and
6 other evidence in the record (AR 20-26).
7 On December 15, 2020, the Appeals Council denied plaintiff’s application
8 for review. (AR 1-3).
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
14
3For claims filed after March 27, 2017 (such as plaintiff’s present claim), new regulations
15
govern the evaluation of medical opinion evidence. Under these regulations, ALJs no longer
16 “weigh” medical opinions; rather, ALJs determine which opinions are the most “persuasive” by
focusing on several factors: (1) supportability; (2) consistency; (3) relationship with the
17 claimant (including the length of treatment, frequency of examinations, purpose of treatment,
extent of treatment, whether the medical source examined the claimant); (4) the medical source’s
18
specialty; and (5) “other” factors. See 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5).
19 ALJs must explain how they considered the factors of supportability and consistency, but need
not explain how they considered any other factor. See 20 C.F.R. §§ 404.1520c(b), 416.920c(b);
20
Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) (discussing evaluation of opinion
21 evidence under the new regulations).
22 The new regulations command that an opinion that a claimant is disabled or not able to
work is “inherently neither valuable nor persuasive,” and an ALJ need not provide any analysis
23
about how such evidence is considered. See 20 C.F.R. §§ 404.1520b(c)(3), 416.920b(c)(3). An
24 ALJ is only required to provide an analysis of “medical opinions,” which are statements from
medical sources about what a claimant can still do despite their impairments, and whether they
25 have impairment-related limitations or restrictions on their ability to perform physical or mental
26 demands of work activities. See 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2).
27 4The vocational expert testified that if a person were off task five percent of the time (i.e.,
for 24 minutes a day), it would eliminate the ability to perform plaintiff’s past relevant work and
28 all other competitive work. (AR 60).
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1 || physical or mental impairment which can be expected to result in death or which
2 || has lasted or can be expected to last for a continuous period of not less than
3 || 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting
4 || 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded by
5 || regulation on other grounds as stated in Sisk v. Saul, 820 Fed. App’x 604, 606 (9th
6 || Cir. 2020); 20 C.F.R. §§ 404.1505(a), 416.905. To be considered disabled, a
7 || claimant must have an impairment of such severity that he is incapable of
8 || performing work the claimant previously performed (“past relevant work’’) as well
9 || as any other “work which exists in the national economy.” Tackett v. Apfel, 180
10 | F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).
11 To assess whether a claimant is disabled, an ALJ is required to use the five-
12 || step sequential evaluation process set forth in Social Security regulations. See
13 || Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th
14 || Cir. 2006) (describing five-step sequential evaluation process) (citing 20 C.F.R.
15 || §§ 404.1520, 416.920). The claimant has the burden of proof at steps one through
16 || four —i.e., determination of whether the claimant was engaging in substantial
17 | gainful activity (step 1), has a sufficiently severe impairment (step 2), has an
18 || impairment or combination of impairments that meets or medically equals one of
19 || the conditions listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings’’)
20 || (step 3), and retains the residual functional capacity to perform past relevant work
21 || (step 4). Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted).
22 || The Commissioner has the burden of proof at step five — i.e., establishing that the
23 || claimant could perform other work in the national economy. Id. “Ifthe ALJ
24 || determines that a claimant is either disabled or not disabled at any step in the
25 || process, the ALJ does not continue on to the next step.” Bray v. Commissioner of
26 || Social Security Administration, 554 F.3d 1219, 1222 (9th Cir. 2009) (citing 20
27 | C.F.R. § 416.920(a)(4)).
28 ///

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1 B. Federal Court Review of Social Security Disability Decisions
2 A federal court may set aside a denial of benefits only when the
3 || Commissioner’s “final decision” was “based on legal error or not supported by
4 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
5 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard
6 || of review in disability cases is “highly deferential.” Rounds v. Commissioner of
7 || Social Security Administration, 807 F.3d 996, 1002 (9th Cir. 2015) (citation and
8 || quotation marks omitted). An ALJ’s decision must be upheld if the evidence could
9 || reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at
10 || 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must be
11 || affirmed if the error was harmless. See Treichler v. Commissioner of Social
12 || Security Administration, 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless
13 | if (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path
14 || may reasonably be discerned despite the error) (citation omitted).
15 Substantial evidence is “such relevant evidence as a reasonable mind might
16 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining
17 | “substantial evidence” as “more than a mere scintilla, but less than a
18 || preponderance’) (citation and quotation marks omitted). When determining
19 || whether substantial evidence supports an ALJ’s finding, a court “must consider the
20 || entire record as a whole, weighing both the evidence that supports and the evidence
21 || that detracts from the Commissioner’s conclusion[.]” Garrison v. Colvin, 759 F.3d
22 || 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).
23 Federal courts review only the reasoning the ALJ provided, and may not
24 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”
25 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need
26 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s
27 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,
28 || 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).

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1 A reviewing court may not conclude that an error was harmless based on
2 independent findings gleaned from the administrative record. Brown-Hunter, 806
3 F.3d at 492 (citations omitted). When a reviewing court cannot confidently
4 conclude that an error was harmless, a remand for additional investigation or
5 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173
6 (9th Cir. 2015) (citations omitted).
7 IV. DISCUSSION
8 Plaintiff contends, inter alia, that the ALJ erred in assessing the medical
9 evidence and plaintiff’s subjective allegations regarding cognitive limitations
10 plaintiff has had following his TIAs, which plaintiff asserts preclude performance
11 of his past relevant work. See Plaintiff’s Motion at 4, 14-20. On the available
12 record, the ALJ erred in evaluating plaintiff’s subjective allegations. Since the
13 Court cannot find that the ALJ’s error was harmless, a remand is warranted.
14 A. Summary of the Relevant Medical Record
15 The medical record reflects that plaintiff was in car accidents in June and
16 July 2017, after which plaintiff was diagnosed with vertebral artery dissection
17 which led to plaintiff suffering TIAs in September 2017 – around the time of the
18 alleged onset date – and April 2018. See AR 288 (summarizing major medical
19 history), 718-25 (records following June, 2017 motor vehicle accident resulting in
20 neck, back, and abdominal pain assessed as cervicalgia, left shoulder pain, thoracic
21 spine pain, lumbar radiculopathy, hip strain and abdominal discomfort); see also
22 AR 304-33 (hospital records for September, 2017 TIA reflecting right-sided
23 numbness, facial asymmetry, slurred speech, right vertebral artery dissection per
24 MRA/CT angiogram of the neck, with a reported history of about nine episodes but
25 emergency treatment only three times (not reflected in the available record); mental
26 status reportedly was within normal limits); AR 347-74 (hospital records for April,
27 2018 TIA reflecting worsening symptoms of lightheadedness and dizziness with
28 focal motor weakness, double vision while driving, fatigue, right side numbness,
6
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1 trouble pronouncing words for the last few months, and persistent symptoms since
2 the September, 2017 TIA)). A brain MRI at the time of the September 2017 TIA
3 was normal. (AR 309-10). Imaging at the time of the April, 2018 TIA was largely
4 unremarkable and unchanged from prior studies. (AR 351-52, 366).
5 As detailed below, the record reflects complaints of dizziness and cognitive
6 issues to various treatment providers and to the reviewing physicians following
7 plaintiff’s TIAs, but there are no specific examination findings supporting
8 plaintiff’s alleged cognitive issues.
9 1. Family Practitioner Dr. Steven Luh
10 Family practitioner Dr. Steven Luh treated plaintiff primarily with pain
11 medication from March 2017 through at least January 2019. (AR 856-928,
12 988-95). Throughout this time, Dr. Luh reported that plaintiff was oriented and his
13 remote and recent memory were not impaired to general conversation, despite
14 some noted complaints of disorientation, disorganization, vision change with
15 difficulty focusing, forgetfulness, confusion, and difficulty concentrating since
16 plaintiff’s June 2017 car accident. (AR 858-59, 863, 868-70, 872, 876-77, 881,
17 883, 885, 888, 891, 893, 895, 897, 901-03, 905, 907, 909, 910, 912, 915, 917, 919,
18 921-22, 927, 988, 991, 995). Dr. Luh reportedly completed disability forms for
19 plaintiff on November 16, 2017, April 18, 2018, June 6, 2018, and January 24,
20 2019, with the last covering a disability period through May 24, 2019, but neither
21 the forms nor any detail regarding these forms are in the record. (AR 878, 880,
22 881, 883, 904, 906, 998, 991).5
23 2. Vascular Surgeon Dr. Hugh Gelabert
24 Vascular surgeon Dr. Hugh Gelabert evaluated plaintiff in May 2018 for,
25 inter alia, double vision, headaches, coordination problems, and lightheadedness
26
27 5 At subsequent pain management treatment visits with Pain Management Associates of
Fountain Valley in late 2019 and early 2020, plaintiff continued to complain sometimes of
28 memory issues and dizziness. (AR 1250, 1262, 1266, 1268, 1270).
7
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1 during exertion. (AR 288). Dr. Gelabert noted from imaging that it was unclear
2 whether plaintiff had suffered TIAs versus strokes – plaintiff’s symptomatology
3 with persistent deficits suggested stroke, so Dr. Gelabert referred plaintiff to a
4 neurologist for a second opinion. (AR 289). Dr. Gelabert reportedly discussed
5 with plaintiff that plaintiff should not operate a motor vehicle given his history of
6 dizziness attacks. (AR 289).
7 3. Neurologist Dr. Victor Bach Doan
8 Neurologist Dr. Victor Bach Doan evaluated plaintiff later in May 2018, for
9 complaints of continued intermittent lightheadedness for the last year, and prior
10 reports of fatigue, insomnia, and diminished finger dexterity while typing. (AR
11 379-80). Physical examination was within normal limits, but did not include any
12 measures of plaintiff’s mental limitations beyond noting that plaintiff was alert and
13 oriented with normal speech and language. (AR 381). Dr. Doan noted plaintiff’s
14 persistent lightheadness seemed “discordant” with imaging findings. (AR 381).
15 Dr. Doan referred plaintiff to an ear nose and throat specialist and audiology for
16 evaluation. (AR 382).
17 Plaintiff returned to Dr. Doan in August 2018, reporting persistent “episodes
18 of nonspecific symptoms” (i.e., brain fog, “fuzzy feeling” with lightheadedness,
19 nonpositional vertigo, decreased bilateral finger dexterity, and not feeling well)
20 five days out of a week since his initial TIA hospitalization in September 2017.
21 (AR 393). Physical examination findings were unchanged from the prior visit.
22 (AR 395). Dr. Doan noted plaintiff might need a second opinion from a vascular
23 neurologist. (AR 396).
24 4. Primary Provider Dr. Todd Peters
25 Primary provider Dr. Todd Peters examined plaintiff in August and
26 November 2018, for complaints of neck pain with dizziness, instability, leg
27 weakness, double vision and sight difficulty. (AR 982, 985). Dr. Peters diagnosed
28 cervicalgia with cervical neuropathy per MRI. (AR 985). At a follow up visit in
8
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1 August 2019, plaintiff complained of cognitive and vision issues, which Dr. Peters
2 noted were not due to plaintiff’s cervical disc bulge. (AR 1245). Dr. Peters
3 referred plaintiff for neurology and testing for cognitive issues. (AR 1245; see
4 also AR 1433-37 (treatment note for a family practice provider from August 2019,
5 noting plaintiff complained of persistent brain fog with difficulty concentrating and
6 thinking for which plaintiff also was referred to neurology for evaluation for
7 cognitive and behavioral changes)).
8 5. Neurologist Dr. Bruce Cleeremans
9 Neurologist Dr. Bruce Cleeremans evaluated plaintiff in September 2019,
10 for complaints of right head pain, fatigue, dizziness, unsteadiness, foggy
11 concentration, and memory loss (primarily with auditory memory – which plaintiff
12 reported prevented him from working his job as a 911 operator because that job is
13 all auditory, and requires rapid response to situations and communication with
14 police officers) since plaintiff’s TIA in September 2017. (AR 1275-77). Mental
15 status examination reported that plaintiff was alert and oriented, his remote and
16 recent memory were intact, his attention and concentration were preserved, he had
17 normal speech output and understanding, and his fund of knowledge and
18 vocabulary were normal. (AR 1276). Notwithstanding these findings, Dr.
19 Cleeremans diagnosed persistent verbal memory difficulty. (AR 1277). Dr.
20 Cleeremans explained that plaintiff’s memory had improved “quite a bit” since his
21 injury, but plaintiff still had residual symptoms along with unsteadiness and
22 headaches. (AR 1277). Dr. Cleeremans concluded:
23 The memory and some of the unsteadiness symptoms are permanent
24 residuals from that event after the motor vehicle accident. His [sic]
25 sounds like it will prevent him from returning to work as a 911
26 operator that [sic] he might be able to do other activities that are less
27 speed intensive.
28 (AR 1277). Plaintiff followed up with Dr. Cleeremans in February 2020, reporting
9
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1 continued symptoms. (AR 1278-80). Mental status examination findings were the
2 same as the prior visit. (AR 1279). Dr. Cleeremans repeated his explanation and
3 prior conclusion about plaintiff’s apparent inability to do his past work. (AR
4 1280).
5 6. Neurosurgeon Dr. Jeffrey Gross
6 Neurosurgeon Dr. Jeffrey Gross evaluated plaintiff, reviewed medical
7 records, and prepared several reports concerning plaintiff’s condition that are dated
8 from October 2017 through February 2020. See AR 726-37, 1015-19, 1047-1107,
9 1174-80, 1360-63, 1371-1432 (various reports). As pertinent to plaintiff’s
10 cognitive complaints, Dr. Gross prepared a follow up consultation report in March
11 2019. (AR 1099-1107). He had not seen plaintiff since September 2017. (AR
12 1099). Dr. Gross noted that since plaintiff’s last visit, plaintiff had suffered two
13 TIAs which reportedly caused mental fogginess after the second TIA in March
14 [sic] 2018. (AR 1099). Plaintiff reportedly had applied for disability on the basis
15 of cognitive issues but been denied and currently was appealing the denial. (AR
16 1099). Dr. Gross generally stated, “He has not been able to work since.” (AR
17 1099).
18 Dr. Gross reported:
19 He has persistent fogginess. He feels to be fuzzy and in a mental
20 haze. He has trouble with concentration and focus. He can have
21 trouble forming words of [sic] finishing sentences. Memory is
22 limited. Driving is restricted (self-imposed).
23 (AR 1100). However, Dr. Gross’s examination did not note any evaluation of
24 plaintiff’s alleged cognitive issues. (AR 1100-03). Dr. Gross reviewed March
25 2019 brain MRI and MRA studies which showed a cavum septum pellicidum and
26 thinned right vertebral artery. (AR 1106; see also AR 1133 ( March 2019 brain
27 MR angiogram showed irregular and diminutive intracranial right vertebral artery
28 and otherwise unremarkable findings), 1138 (March 2019 unremarkable brain
10
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1 MRI)). Dr. Gross noted some improvement in plaintiff’s previously diagnosed
2 injuries, and diagnosed right vertebral artery dissection with ischemic events with
3 mesencephalopathy (occular and vestibular residuals), occluded on anti-coagulants,
4 and permanent cognitive residuals. V(AR 1106-07). Dr. Gross did not opine re any
5 specific limitations plaintiff may have, but reported plaintiff’s disability status as
6 “total disability.” (AR 1107).
7 Dr. Gross prepared a follow up consultation report in November 2019. (AR
8 1383-1401). Dr. Gross had not seen plaintiff since March 2019. (AR 1383).
9 Plaintiff complained of, inter alia, persistent and constant dizziness, problems with
10 visual acuity and double vision from prolonged reading, and short term memory
11 problems. (AR 1384). Examination showed dizziness with neck movement, but
12 did not include any evaluation of plaintiff’s alleged visual or memory issues. (AR
13 1384-88). Dr. Gross nonetheless opined as he did before that plaintiff’s cognitive
14 limitations were permanent and that plaintiff had “total disability.” (AR 1400-01).
15 Dr. Gross prepared a telephonic follow up consultation in February 2020.
16 (AR 1420-26). Plaintiff complained of frustration, depression, ongoing dizziness,
17 fatigue, trouble with visual focusing, residual short term memory problems, and
18 dropping things from his right arm, but no residual speech problems. (AR 1420).
19 Dr. Gross did not examine plaintiff given that the consultation was by telephone,
20 but again opined plaintiff had “total disability.” (AR 1421, 1425).
21 7. Consultative Examiner Dr. Azizollah Karamlou and the
22 State Agency Physicians
23 Dr. Azizollah Karamlou examined plaintiff and prepared an internal
24 medicine consultation dated November 9, 2018. (AR 976-80). Dr. Karamlou
25 reviewed no medical records. (AR 979). Plaintiff complained of persistent brain
26 fog, poor attention and concentration following his TIAs. (AR 976, 979). Dr.
27 Karamlou did not evaluate plaintiff’s alleged cognition issues as part of his
28 examination, but Dr. Karamlou did find that plaintiff has brain fog and poor
11
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1 attention/concentration related to his TIAs. (AR 977-79). Dr. Karamlou opined
2 that plaintiff would be capable of performing a range of medium work, but did not
3 opine whether plaintiff would have any mental limits. (AR 979-80).
4 State agency physicians reviewed the record in November 2018 and April
5 2019, which then included Dr. Karamlou’s opinion and plaintiff’s complaints of
6 brain fog, and poor attention and concentration due to TIAs, but did not include
7 any treatment records from Drs. Cleeremans or Gross. (AR 66-88). The state
8 agency physicians adopted Dr. Karamlou’s medium residual functional capacity
9 assessment. (AR 70-73, 83-85 (noting there was no evidence of significant
10 residual neurological deficits from plaintiff’s TIAs)).
11 B. Summary of Plaintiff’s Testimony and Statements
12 Plaintiff testified that his work as a public safety dispatcher for the Long
13 Beach Police Department required that he answer 911 calls as well as calls to the
14 normal police number, put medical emergency calls through to the fire department,
15 and otherwise radio dispatch calls for police response, all while communicating
16 with police units “in the fields.” (AR 39-40). Plaintiff’s job was computer based
17 and involved dispatch and mapping systems. (AR 40). Plaintiff said he stopped
18 working after he had his second “TIA stroke” because he was never able to recover
19 “enough” to return to work. (AR 40-41). Plaintiff explained that he had balance
20 issues, constant dizziness, limited finger dexterity, eyesight issues (i.e., trouble
21 keeping his eyes in focus, and difficulty judging depth), and fatigue from standing
22 due to balance issues. (AR 40-43). Plaintiff said his short term memory is quite
23 poor (e.g., he has trouble remembering if he has taken his medications and needs
24 reminders), and he has found it “exceptionally difficult” to focus on tasks after his
25 second TIA, such as getting caught up on banking or balancing his checkbook.
26 (AR 48, 50-51).
27 Plaintiff estimated that he could stand for up to 15 minutes before needing to
28 sit down due to fatigue and feeling like he is going to fall. (AR 43). Plaintiff had
12
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1 fallen in January 2018, when he returned to work the after his first stroke. (AR 43-
2 44; see also AR 897 (treatment note reporting fall dated January 15, 2018)). He
3 had not fallen since then because he had not pushed himself to the point where he
4 would fall. (AR 44). Plaintiff estimated that he stands for a total of one hour per
5 day, and the rest of the day he is sitting reclined in a neutral position or lying
6 down. (AR 44). He estimated he spends 20 minutes a day in a directly upright
7 position (e.g., when he is seated at the dinner table). (AR 45). Plaintiff said if he
8 sits upright for any “great” length of time, he will have neck spasms. (AR 45-46).
9 Plaintiff did daily stretches at home for about 20 minutes to try to alleviate his
10 discomfort. (AR 46). Plaintiff said that nothing helped with his dizziness – it was
11 due to permanent brain damage. (AR 46-47).
12 Plaintiff lived with his wife who also was injured in plaintiff’s July 2017 car
13 accident, requiring that she undergo emergency neck surgery for her cervical spine
14 which had failed. (AR 49). Plaintiff’s wife could barely stand and her cervical
15 spine was not strong enough to hold her head up. (AR 49). She could not do any
16 household chores. (AR 49). Plaintiff said he could do sweeping and mopping for
17 30 to 40 minutes at a time before getting fatigued/increasingly dizzy, but he does
18 not do any household chores on days when his dizziness is intense, which he said
19 happens two to three times a week. (AR 49-50).
20 Plaintiff said he could cook on occasion, maybe once or twice a month, and
21 that he and his wife were getting most of their meals delivered. (AR 56). He said
22 his wife stays in bed all day and he will bring her food or a drink when she needs
23 one. (AR 56). As for his finances, plaintiff said most everything is set up on auto
24 pay so he does not require hours to manage his accounts. (AR 56-57). Plaintiff
25 did watch some television during the day. (AR 57).
26 Plaintiff said he stopped driving after his second stroke because of his depth
27 perception issues. (AR 51-52). On further questioning, plaintiff clarified that he
28 drives himself to doctor’s appointments but his wife goes with him and acts as a
13
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1 second set of eyes. (AR 52).6 Plaintiff said he had trouble reading from a screen
2 because his eyes “start floating” causing him to lose his place “constantly,”
3 requiring him to look away for a couple minutes. (AR 53). His eyes go crossed
4 again in only a “couple minutes,” and this issue is persistent throughout the day.
5 (AR 53).
6 Plaintiff had reported in a September 2018 Exertion Questionnaire that his
7 vertigo made it not safe for him to drive and rendered him a fall risk. (AR 237-39).
8 He reported that on a good day he does dishes, laundry, and miscellaneous “things”
9 about the house accumulated from bad days. (AR 237). He also feeds pets and
10 assists his wife the best he can. (AR 237). He reported that he could walk a couple
11 hundred feet, does not feel stable, and has to walk slowly. (AR 237). He could
12 climb 16 stairs in his house with the assistance of his Great Dane walking beside
13 him, lift a gallon of milk, and carry groceries 20 feet. (AR 238). He reportedly did
14 not do his own grocery shopping (he had them delivered) or clean his house. (AR
15 238-39). He reported that he could drive a car if his wife is with him to help with
16 his depth perception issues. (AR 238). He reported he could stand for 15 minutes
17 before needing to sit due to instability. (AR 239). He would sit or lie down six to
18 eight times a day and took several hours to “level out.” (AR 239).
19 C. Pertinent Law
20 When determining disability, an ALJ is required to consider a claimant’s
21 impairment-related pain and other subjective symptoms at each step of the
22 sequential evaluation process. 20 C.F.R. §§ 404.1529(a), (d), 416.929(a), (d).
23 Accordingly, when a claimant presents “objective medical evidence of an
24 underlying impairment which might reasonably produce the pain or other
25
26
6There are other suggestions in the record that plaintiff continued to drive himself albeit
27 with some difficulty judging distances. (AR 1078, 1080). For example, plaintiff reportedly
drove himself to an April 11, 2018 doctor appointment notwithstanding his recent hospital visit
28 for TIA/stroke. (AR 885).
14
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1 symptoms [the claimant] alleged,” the ALJ is required to determine the extent to
2 which the claimant’s statements regarding the intensity, persistence, and limiting
3 effects of his or her subjective symptoms (“subjective statements” or “subjective
4 complaints”) are consistent with the record evidence as a whole and, consequently,
5 whether any of the individual’s symptom-related functional limitations and
6 restrictions are likely to reduce the claimant’s capacity to perform work-related
7 activities. 20 C.F.R. §§ 404.1529(a), (c)(4), 416.929(a), (c)(4); Social Security
8 Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *4-*10.7
9 When an individual’s subjective statements are inconsistent with other
10 evidence in the record, an ALJ may give less weight to such statements and, in
11 turn, find that the individual’s symptoms are less likely to reduce the claimant’s
12 capacity to perform work-related activities. See SSR 16-3p, 2017 WL 5180304, at
13 *8. In such cases, when there is no affirmative finding of malingering, an ALJ
14 may “reject” or give less weight to the individual’s subjective statements “only by
15 providing specific, clear, and convincing reasons for doing so.” Brown-Hunter,
16 806 F.3d at 488-89. This requirement is very difficult to satisfy. See Trevizo, 871
17 F.3d at 678 (“The clear and convincing standard is the most demanding required in
18 Social Security cases.”) (citation and quotation marks omitted).
19 An ALJ’s decision “must contain specific reasons” supported by substantial
20 evidence in the record for giving less weight to a claimant’s statements. SSR 16-
21 3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each subjective
22 statement being rejected and the particular evidence in the record which
23 purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation
24
25
7Social 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
28 SSR 16-3p, 2017 WL 5180304, at *1-*2, *10-*11.
15
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1 || omitted). “General findings are insufficient[.]’” Reddick v. Chater, 157 F.3d 715,
2 || 722 (9th Cir. 1998) (citations omitted).
3 If an ALJ’s evaluation of a claimant’s statements is reasonable and is
4 || supported by substantial evidence, it is not the court’s role to second-guess it. See
5 || Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). When
6 || an ALJ fails properly to discuss a claimant’s subjective complaints, however, the
7 || error may not be considered harmless “unless [the Court] can confidently conclude
8 || that no reasonable ALJ, when fully crediting the testimony, could have reached a
9 || different disability determination.” Stout, 454 F.3d at 1056; see also Brown-
10 || Hunter, 806 F.3d at 492 (ALJ’s erroneous failure to specify reasons for rejecting
11 || claimant testimony “will usually not be harmless’’).
12 D. Analysis
13 In determining plaintiff’s residual functional capacity for a range of medium
14 || work, the ALJ summarized plaintiff's testimony and statements and the related
15 || medical record. (AR 19-24). As noted above, the ALJ generally concluded that
16 | although plaintiff's medically determinable impairments could reasonably be
17 || expected to cause the alleged symptoms, plaintiffs statements concerning the
18 || intensity, persistence and limiting effects of these symptoms were “not entirely
19 || consistent with the medical evidence and other evidence in the record, for the
20 || reasons explained in this decision.” (AR 20). The ALJ generally found that “the
21 || objective medical evidence of record supports that no additional limitations are
22 || needed.” (AR 23).
23 With respect to plaintiff's alleged neurological deficits, the ALJ noted that
24 || plaintiff reportedly had been alert and fully oriented with intact comprehension,
25 || normal memory, and normal speech with no dysarthria. See AR 23 (citing AR 289
26 || (Dr. Gelabert’s May 2018 treatment note), 318 (September 2017 hospital note
27 || reporting alert and oriented mental status with normal speech and language), 361
28 || (April 2018 hospital note reporting same), 1121 (February 2019 treatment note
16

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1 reporting same), 1279 (Dr. Cleeremans’s February 2020 treatment note reporting
2 same and that plaintiff’s memory was intact and attention and concentration were
3 preserved). The ALJ also found that plaintiff’s “statements about the intensity,
4 persistence, and limiting effects of his symptoms” were “inconsistent because
5 [plaintiff] is not as restricted as he claims” based on plaintiff’s “somewhat normal
6 level of daily activity and interaction” (e.g., “attending to his personal hygiene,
7 light housekeeping, caring for a pet, managing his finances, driving and assisting
8 his wife.” (AR 23).
9 The ALJ’s reasoning for discounting plaintiff’s subjective statements and
10 testimony is inadequate. Turning first to plaintiff’s alleged daily activities, it is not
11 clear how plaintiff’s limited household chores of doing dishes, laundry, sweeping
12 and mopping for up to 40 minutes at a time, and miscellaneous “things” about the
13 house accumulated from bad days – which he testified he does not do two to three
14 days a week when his dizziness is intense – along with feeding pets, limited
15 driving to doctor’s appointments with his wife’s assistance, occasional cooking
16 twice a month, bringing food and drinks to his wife who is in bed, lying down,
17 reclining, watching some television, limited reading, and reviewing his finances
18 (which mostly are on auto pay), conflict with any of his alleged limitations,
19 including dizziness, limited short term memory and difficulty focusing on tasks
20 following his TIAs. On the present record, plaintiff’s reportedly limited daily
21 activities are not a specific, clear and convincing basis to discount his subjective
22 statements. See Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (“Though
23 inconsistent daily activities may provide justification for rejecting symptom
24 testimony, ‘the mere fact that a plaintiff has carried on certain daily activities . . .
25 does not in any way detract from [the claimant’s] credibility as to . . . overall
26 disability.’”) (emphasis added) (quoting Benecke v. Barnhart, 379 F.3d 587, 594
27 (9th Cir. 2004)); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (“This court has
28 repeatedly asserted that the mere fact that a plaintiff has carried on certain daily
17
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1 || activities does not in any way detract from her credibility as to her overall
2 || disability.) (citation and alterations omitted); Reddick, 157 F.3d at 722 (“Only if
3 || the level of activity were inconsistent with the Claimant’s claimed limitations
4 || would these activities have any bearing on Claimant’s credibility.”).*
5 The ALJ’s other reason for discounting plaintiff's testimony and statements
6 || concerning his mental limitations, i.e., a lack of support or inconsistency with the
7 || medical record, is also not clear and convincing. Direct contradiction between a
8 || claimant’s asserted limitation and specific medical records reflecting an absence of
9 || that same asserted limitation may be particularly probative of a claimant’s
10 || credibility. See Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (although the
11 || claimant asserted an inability to ambulate without a walker, medical records
12 || proved the contrary); see also Carmickle v. Commissioner, 533 F.3d 1155, 1161
13 | (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for
14 | rejecting the claimant’s subjective testimony’); compare Burch, 400 F.3d at 681
15 | (ALJ may not reject a claimant’s subjective complaints “based solely on a lack of
16 || medical evidence to fully corroborate the alleged severity of pain’); Rollins v.
17 || Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“subjective pain testimony cannot
18 || be rejected on the sole ground that it is not fully corroborated by objective medical
19 || evidence’). Here, there arguably is some contradiction between plaintiffs
20 || allegedly limited short term memory, disorientation, confusion, communication,
21 || and concentration issues, and the snapshot observations in the record that plaintiff
22 || was oriented, his memory was not impaired to general conversation or otherwise
23 |} SMa
4 “Defendant points to plaintiffs testimony that he could assist his wife who was limited in
what she could do, but does not acknowledge how plaintiff explained he assisted his wife (by
25 || bringing food and drink to her in bed) and similarly points to plaintiff's testimony that he was
%6 able to manage finances without serious issues, without acknowledging that plaintiff said most of
his bills are on auto pay. Compare Defendant’s Motion at 5-6 with AR 56-57. The testimony to
27 || which Defendant points does not alter this Court’s conclusion that plaintiff's reportedly limited
daily activities are not a specific, clear and convincing basis to discount his subjective
28 statements.
18

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1 was intact, and his attention and concentration were preserved. See AR 858-59,
2 863, 868-70, 872, 876-77, 881, 883, 885, 888, 891, 893, 895, 897, 901-03, 905,
3 907, 909, 910, 912, 915, 917, 919, 921-22, 927, 988, 991, 995 (Dr. Luh’s
4 observations of unimpaired memory to general conversation); AR 381, 395 (Dr.
5 Doan’s notations that plaintiff was alert and oriented with normal speech and
6 language); AR 1276, 1279 (Dr. Cleereman’s findings that plaintiff’s remote and
7 recent memory were intact, his attention and concentration were preserved, he had
8 normal speech output and understanding, and his fund of knowledge and
9 vocabulary were normal). However, as detailed above, notwithstanding these
10 findings, Dr. Cleeremans reported that plaintiff’s memory had improved “quite a
11 bit” since his injury, but he still had permanent residual symptoms along with
12 unsteadiness and headaches. (AR 1277). Dr. Gross also reported plaintiff’s
13 persistent brain fog, limited memory, difficulty concentrating and focusing, and
14 trouble forming words and sentences. (AR 1100, 1400)
15 The cursory observations about plaintiff’s orientation, memory, attention
16 and concentration, without more detailed or specialty testing, do not undermine
17 plaintiff’s subjective statements and testimony that he has permanent cognitive
18 difficulties following his TIAs. See Smartt, 53 F.4th at 495 (citing Burch, 400
19 F.3d at 681, “an ALJ cannot effectively render a claimant’s subjective symptom
20 testimony superfluous by demanding positive medical evidence ‘fully
21 corroborat[ing]’ every allegation within the subjective testimony”). In particular,
22 there were no detailed evaluations in the record specifically addressing plaintiff’s
23 alleged cognitive issues which his neurologists have said are permanent.
24 The Court observes that the infirmity of one or two stated reasons for an
25 ALJ’s discounting of a claimant’s testimony or statements does not always require
26 the overturning of that determination. See Carmickle, 533 F.3d at 1162. In the
27 present case, all of the ALJ’s reasoning is infirm on the present record. Given the
28 vocational expert’s testimony that if a person were off task five percent of the time
19
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1 (i.e., for 24 minutes a day), it would eliminate the ability to perform plaintiff’s past
2 relevant work and all other competitive work (AR 60), the Court cannot find
3 harmless the ALJ’s failure adequately to consider plaintiff’s testimony and
4 statements suggesting greater limitations.
5 V. CONCLUSION
6 For the foregoing reasons,9 the decision of the Commissioner of Social
7 Security is REVERSED in part, and this matter is REMANDED for further
8 administrative action consistent with this Opinion.10
9 LET JUDGMENT BE ENTERED ACCORDINGLY.
10 DATED: February 21, 2023
11 _____________/s/____________________
Honorable Jacqueline Chooljian
12
UNITED STATES MAGISTRATE JUDGE
13
14
15
16 9The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s
decision, except insofar as to determine that a reversal and remand for immediate payment of
17 benefits would not be appropriate. On remand, however, the Commissioner may wish to develop
the record concerning plaintiff’s alleged cognitive limits by obtaining a medical opinion
18
regarding the same since none of the qualifying medical opinions currently in the record appears
19 to have evaluated plaintiff’s cognitive limitations. See 20 C.F.R. §§ 404.1513(a)(2),
416.913(a)(2) (defining medical opinions). Specifically, Dr. Karamlou did not evaluate
20
plaintiff’s memory or cognition as part of his examination or opine whether plaintiff would have
21 any mental limitations, but did find that plaintiff has brain fog and poor attention/concentration
related to his TIAs. (AR 976-80). The state agency physicians considered Dr. Karamlou’s
22 opinion and plaintiff’s complaints of brain fog, and poor attention and concentration due to TIAs
in determining plaintiff’s residual functional capacity, but did not assess any mental limitations
23
citing the lack of evidence of any significant deficits from plaintiff’s TIAs, and Dr. Luh’s
24 January 29, 2019 treatment note reporting that plaintiff’s memory was not impaired to general
conversation. (AR 70, 72, 82, 85 (citing AR 989-91)).
25
10When a court reverses an administrative determination, “the proper course, except in
26
rare circumstances, is to remand to the agency for additional investigation or explanation.”
27 Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and
quotations omitted); Treichler, 775 F.3d at 1099 (noting such “ordinary remand rule” applies in
28 Social Security cases) (citations omitted).
20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9982492. Public record. Not legal advice.