“[s]ubstantial evidence is 26 more than a mere scintilla but less than a preponderance”
How later courts described this case
- “[s]ubstantial evidence is 26 more than a mere scintilla but less than a preponderance”
- ALJ may not simply 22 “pick out a few isolated instances of improvement over a period of months or years 23 and [ ] treat them as a basis for concluding a claimant is capable of working.”
- “A district court cannot proceed directly to credit a claimant’s 23 testimony as true and then look to the record to determine whether there are any 24 issues outstanding, as ‘this reverses the required order of analysis.’”
- “an ALJ 26 ‘may not disregard [a claimant’s testimony] solely because it is not substantiated 27 affirmatively by objective medical evidence’”
Written by the judges who cited it.
The opinion
Case 2:21-cv-08758-GJS Document 24 Filed 03/07/23 Page 1 of 9 Page ID #:922
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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MICHAEL H.,1
11 Case No. 2:21-cv-08758-GJS
Plaintiff
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v.
13 MEMORANDUM OPINION AND
KILOLO KIJAKAJI, Acting ORDER
14 Commissioner of Social Security,
15 Defendant.
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18 I. PROCEDURAL HISTORY
19 Plaintiff Michael H. (“Plaintiff”) filed a complaint seeking review of the
20 decision of the Commissioner of Social Security denying his application for
21 Disability Insurance Benefits (“DIB”). The parties filed consents to proceed before
22 the undersigned United States Magistrate Judge [Dkts. 11 and 12] and briefs [Dkts.
23 21 (“Pl. Br.”), 22 (“Def. Br.”), 23 (“Reply”)] addressing disputed issues in the case.
24 The matter is now ready for decision. For the reasons set forth below, the Court
25 finds that this matter should be remanded.
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1 In the interest of privacy, this Order uses only the first name and the initial of
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the last name of the non-governmental party in this case.
Case 2:21-cv-08758-GJS Document 24 Filed 03/07/23 Page 2 of 9 Page ID #:923
1 II. ADMINISTRATIVE DECISION UNDER REVIEW
2 Plaintiff filed an application for DIB on February 2, 2017. [Dkt. 17,
3 Administrative Record (“AR”) 116, 260-61.] Plaintiff alleges a disability onset date
4 of August 31, 2015. [AR 22, 72.] Plaintiff’s application was denied at the initial
5 level of review and on reconsideration. [AR 133-36, 140-44.]
6 Plaintiff’s first administrative hearing was held on April 12, 2019. [AR 35-
7 66.] A decision denying benefits was issued on June 20, 2019. [AR 116-23.] On
8 August 5, 2020, the Appeals Council remanded the case for further proceedings.
9 [AR 128-31.]
10 On December 15, 2020, Administrative Law Judge Diana Coburn (“the ALJ”)
11 presided over a telephone hearing on remand. [AR 22, 67-88.] On January 27,
12 2021, the ALJ issued an unfavorable decision applying the five-step sequential
13 evaluation process for assessing disability. [AR 20-29.] See 20 C.F.R. §
14 404.1520(b)-(g)(1). At step one, the ALJ determined that Plaintiff had not engaged
15 in substantial gainful activity from his alleged onset date of August 31, 2015,
16 through his date last insured of March 31, 2017. [AR 22.] At step two, the ALJ
17 determined that Plaintiff has the following severe impairments: bilateral carpal
18 tunnel syndrome; left hand and middle finger sprain/strain; bilateral DeQuervain’s
19 tenosynovitis; lumbar disc bulge; and mild osteoarthritis in the left hand first
20 carpometacarpal joint. [AR 22-23.] At step three, the ALJ determined that Plaintiff
21 did not have an impairment or combination of impairments that meets or medically
22 equals the severity of one of the impairments listed in Appendix I of the
23 Regulations. [AR 18.] See 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ found that
24 Plaintiff has the residual functional capacity (“RFC”) to perform medium work, as
25 defined in 20 C.F.R. § 416.967(c), but Plaintiff is limited to frequent postural
26 activities, fine and gross manipulation bilaterally, and exposure to dangerous and
27 moving machinery and unprotected heights. [AR 23.] At step four, the ALJ
28 determined that Plaintiff was unable to perform any past relevant work. [AR 27.]
2
Case 2:21-cv-08758-GJS Document 24 Filed 03/07/23 Page 3 of 9 Page ID #:924
1 At step five, the ALJ found that Plaintiff could perform other work that exists in
2 significant numbers in the national economy. [AR 28.] Therefore, the ALJ
3 concluded that Plaintiff was not under a disability from the alleged onset date of
4 August 31, 2015, through the date last insured of March 31, 2017. [AR 29.]
5 The Appeals Council denied review of the ALJ’s decision on September 22,
6 2021. [AR 1-6.] This action followed.
7 Plaintiff raises the following issues challenging the ALJ’s findings and
8 determination of non-disability:
9 1. The ALJ failed to properly evaluate medical opinion evidence. [Pl. Br. at 4-
10 10.]
11 2. The ALJ failed to articulate clear and convincing reasons for rejecting
12 Plaintiff’s subjective testimony. [Pl. Br. at 10-13.]
13 The Commissioner asserts that the ALJ’s decision is supported by substantial
14 evidence and should be affirmed. [Def. Br. at 1-16.]
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16 III. GOVERNING STANDARD
17 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to
18 determine if: (1) the Commissioner’s findings are supported by substantial
19 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v.
20 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r
21 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence … is
22 ‘more than a mere scintilla’ … [i]t means – and only means – ‘such relevant
23 evidence as a reasonable mind might accept as adequate to support a conclusion.’”
24 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v.
25 Comm’r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 2014) (“[s]ubstantial evidence is
26 more than a mere scintilla but less than a preponderance”) (internal quotation marks
27 and citation omitted).
28 The Court will uphold the Commissioner’s decision when “‘the evidence is
3
Case 2:21-cv-08758-GJS Document 24 Filed 03/07/23 Page 4 of 9 Page ID #:925
1 susceptible to more than one rational interpretation.’” Burch v. Barnhart, 400 F.3d
2 676, 681 (9th Cir. 2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
3 1989)). However, the Court may review only the reasons stated by the ALJ in the
4 decision “and may not affirm the ALJ on a ground upon which he did not rely.”
5 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the
6 Commissioner’s decision if it is based on harmless error, which exists if the error is
7 “inconsequential to the ultimate nondisability determination, or that, despite the
8 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin,
9 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted).
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11 IV. DISCUSSION
12 Plaintiff contends that the ALJ erred by discounting his subjective symptom
13 testimony without stating legally sufficient reasons for doing so. As discussed
14 below, the Court agrees with Plaintiff and finds that remand is appropriate.
15 In evaluating a claimant’s subjective complaints, an ALJ must engage in a
16 two-step analysis. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir.
17 2007); 20 C.F.R. § 416.929. “First, the ALJ must determine whether the claimant
18 has presented objective medical evidence of an underlying impairment, ‘which
19 could reasonably be expected to produce the pain or other symptoms alleged.’”
20 Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th
21 Cir. 1991) (en banc)). Second, if the claimant meets the first step and there is no
22 evidence of malingering, “‘the ALJ can reject the claimant’s testimony about the
23 severity of [his] symptoms only by offering specific, clear and convincing reasons
24 for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting Smolen v. Chater, 80 F.3d
25 1273, 1281 (9th Cir. 1996)). The ALJ must specifically identify the symptom
26 testimony that is being rejected and the “facts in the record lead to that conclusion.”
27 Smolen, 80 F.3d at 1284; see also Soc. Sec. Ruling 16-3p Titles II & XVI:
28 Evaluation of Symptoms in Disability Claims, SSR 16-3P, 2017 WL 5180304, *4
4
Case 2:21-cv-08758-GJS Document 24 Filed 03/07/23 Page 5 of 9 Page ID #:926
1 (S.S.A. Oct. 25, 2017) (explaining that the ALJ must “evaluate the intensity and
2 persistence of [the] individual’s symptoms ... and determine the extent to which
3 [those] symptoms limit [his] ... ability to perform work-related activities ....”).
4 Here, Plaintiff testified that he has been unable to work due to hand and lower
5 back pain. [AR 75-77.] Plaintiff stated that he has trouble gripping, handling,
6 lifting more than 10 to 15 pounds, walking more than one block, and performing
7 daily activities for more than 10 to 15 minutes. [AR 75-76, 78-79.] In an Exertion
8 Questionnaire, Plaintiff reported that he cannot drive more than 5 miles, as he
9 experiences severe pain from gripping the steering wheel. [AR 342.]
10 The ALJ found that Plaintiff’s subjective complaints were inconsistent with
11 “the unremarkable to mild objective findings” in the medical record. [AR 24-26.]
12 The ALJ summarized the medical evidence as to each of Plaintiff’s severe
13 impairments and repeatedly asserted that the evidence revealed only “minimal,”
14 “mild,” and “normal” findings. [AR 25-26 “minimal disc bulges at L4-5,” “minimal
15 disc bulging,” “mild CTS,” “mild osteoarthritic changes of the first carpometacarpal
16 joint,” “mild osteoarthritis of the left hand,” “mild CTS in his upper extremities,”
17 “mild disc bulging in the lumbar spine,” “normal range of motion throughout the
18 upper extremities,” “normal motor strength,” “EMG findings of the lower
19 extremities were within normal limits,” “grossly normal gait,” “normal EMG and
20 nerve conduction studies of the lower extremities,” “grossly normal range of motion
21 of the upper extremities and fingers,” and “normal motor strength and sensation
22 throughout”).] While objective medical evidence is a useful factor to consider in
23 evaluating the intensity and persistence of symptoms, the lack of corroborating
24 medical evidence cannot provide the sole basis for rejecting subjective symptom
25 testimony. See Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (“an ALJ
26 ‘may not disregard [a claimant’s testimony] solely because it is not substantiated
27 affirmatively by objective medical evidence’”) (quoting Robbins v. Soc. Sec.
28 Admin., 466 F.3d 880, 883 (9th Cir. 2006).
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Case 2:21-cv-08758-GJS Document 24 Filed 03/07/23 Page 6 of 9 Page ID #:927
1 The ALJ further found that Plaintiff’s treatment was conservative and routine,
2 because it consisted of physical therapy, acupuncture and medication management.
3 [AR 24-26.] The conservative nature of a claimant’s treatment may factor into the
4 evaluation of a claimant’s subjective complaints. See Parra v. Astrue, 481 F.3d 742,
5 750-51 (9th Cir. 2007). In the present case, however, the record reveals that
6 Plaintiff’s doctors recommended bilateral carpal tunnel decompression surgery,2
7 narcotic pain medication (tramadol), and steroid injections. [AR 24, 415, 428, 432,
8 440, 444, 510, 527, 539, 563, 573, 699.] Such treatments cannot properly be
9 characterized as “conservative” within the meaning of Ninth Circuit jurisprudence.
10 See, e.g., Aguilar v. Colvin, No. CV 13-08307-VBK, 2014 WL 3557308, at *8 (C.D.
11 Cal. July 18, 2014) (“It would be difficult to fault Plaintiff for overly conservative
12 treatment when he has been prescribed strong narcotic pain medications.”); Sanchez
13 v. Colvin, No. CV 12-4061-SP, 2013 WL 1319667, at *4 (C.D. Cal. Mar. 29, 2013)
14 (“Surgery is not conservative treatment.”); Christie v. Astrue, 2011 WL 4368189, at
15 *4 (C.D. Cal. Sept. 16, 2011) (refusing to characterize as “conservative,” treatment
16 that included narcotic pain medication and steroid injections).
17 Defendant argues that Plaintiff’s treatment was conservative, because he did
18 not undergo any surgical procedures or receive cortisone injections prior to his date
19 last insured of March 31, 2017. [Def. Br. at 6-7.] The ALJ, however, did not cite
20 Plaintiff’s failure to receive treatment prior to the date last insured as a factor in
21 discounting Plaintiff’s subjective complaints. See Orn, 495 F.3d at 630; Connett v.
22 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (error to affirm ALJ’s credibility
23 decision based on reasons not cited by the ALJ). Moreover, the recommendations
24 for surgery and steroid injections were documented in Plaintiff’s medical records
25 well before Plaintiff’s date last insured. [AR 427, 563, 699.] Although surgery was
26 ultimately denied by Plaintiff’s insurance carrier and Plaintiff did not receive his
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2 The ALJ noted that Plaintiff’s insurance carrier declined to approve bilateral
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carpal tunnel decompression surgery. [AR 24.]
6
Case 2:21-cv-08758-GJS Document 24 Filed 03/07/23 Page 7 of 9 Page ID #:928
1 first steroid injection until January 2018, evidence post-dating the date last insured
2 is probative of Plaintiff’s pre-date last insured impairments. See Smith v. Bowen,
3 849 F.2d 1222, 1225 (9th Cir. 1988) (“[M]edical evaluations made after the
4 expiration of a claimant’s insured status are relevant to an evaluation of the pre-
5 expiration condition.”).
6 The Defendant also asserts that Plaintiff responded favorably to conservative
7 treatment. [Def. Brief at 15; AR 24-25.] Defendant points out that Plaintiff’s
8 acupuncture reports from February and March 2015 reflect improvement in some of
9 his symptoms (i.e., increased range of motion, strength, endurance, ability to
10 perform activities of daily living, and reduced pain) and Plaintiff indicated in March
11 2016 that physical therapy and acupuncture “arguably helped.” [AR 24, 666, 670,
12 693.] However, the record overall indicates that Plaintiff’s improvement was partial
13 or temporary. [AR 24, 666, 670.] In June 2015, Plaintiff’s doctor, Dr. Katzen,
14 recommended Plaintiff undergo surgical carpal tunnel decompression, as Plaintiff
15 “failed conservative treatment” and had “not improved” following six months of
16 non-surgical treatment. [AR 427-28.] In February and March 2016, Dr. Katzen also
17 reported that Plaintiff’s carpal tunnel syndrome had worsened and was likely to
18 result in permanent impairments without decompression surgery. [AR 456, 464.]
19 Thus, the record shows that despite experiencing temporary periods of improvement
20 from acupuncture treatments, Plaintiff continued to experience pain and symptoms.
21 See Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (ALJ may not simply
22 “pick out a few isolated instances of improvement over a period of months or years
23 and [ ] treat them as a basis for concluding a claimant is capable of working.”);
24 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (ALJ should take “holistic
25 review of the record” in evaluating medical opinions).
26 Accordingly, the ALJ’s consideration of Plaintiff’s subjective symptom
27 testimony is not supported by substantial evidence.
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Case 2:21-cv-08758-GJS Document 24 Filed 03/07/23 Page 8 of 9 Page ID #:929
1 V. REMAND FOR FURTHER PROCEEDINGS
2 The Court has discretion to remand or reverse and award benefits. See
3 Trevizo, 871 F.3d at 682. It may be appropriate to direct an immediate award of
4 benefits when the record has been fully developed, no useful purpose would be
5 served by further proceedings, and the ALJ has failed to provide legally sufficient
6 reasons for rejecting evidence. Id. (citing Garrison, 759 F.3d at 1019). But when
7 there are outstanding issues that must be resolved before a determination can be
8 made, and it is not clear from the record that the ALJ would be required to find a
9 claimant disabled if all the evidence were properly evaluated, remand for further
10 proceedings is appropriate. See Garrison, 759 F.3d at 1021; Harman v. Apfel, 211
11 F.3d 1172, 1180-81 (9th Cir. 2000) (remand for further proceedings rather than for
12 the immediate payment of benefits is appropriate where there are “sufficient
13 unanswered questions in the record”).
14 In this case, there are outstanding issues that must be resolved before a proper
15 disability determination can be made. The ALJ made numerous, detailed findings
16 based on the objective medical evidence that raise questions about Plaintiff’s level
17 of functioning. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1104
18 (9th Cir. 2014) (finding that the record was “uncertain and ambiguous” and remand
19 was warranted where there were “significant factual conflicts in the record between
20 [the plaintiff’s] testimony and objective medical evidence”). Therefore, the Court
21 remands this case for further proceedings. See Leon v. Berryhill, 880 F.3d 1041,
22 1046 (9th Cir. 2017) (“A district court cannot proceed directly to credit a claimant’s
23 testimony as true and then look to the record to determine whether there are any
24 issues outstanding, as ‘this reverses the required order of analysis.’”) (quoting
25 Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015)); see also Treichler, 775
26 F.3d at 1106 (“[A] reviewing court is not required to credit claimants’ allegations
27 regarding the extent of their impairments as true merely because the ALJ made a
28 legal error in discrediting their testimony.”).
8
Case 2:21-cv-08758-GJS Document 24 Filed 03/07/23 Page9of9 Page ID #:930
1 Having found that remand is warranted, the Court declines to address
2 || Plaintiffs remaining issue. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012)
3 || (“Because we remand the case to the ALJ for the reasons stated, we decline to reach
4 || [plaintiff's] alternative ground for remand.’’).
6 VI. CONCLUSION
7 For all of the foregoing reasons, IT IS ORDERED that:
8 (1) the decision of the Commissioner is REVERSED and this matter is
9 || REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further
10 || administrative proceedings consistent with this Memorandum Opinion and Order;
11 || and
12 (2) Judgment be entered in favor of Plaintiff.
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14 IT IS SO ORDERED.
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16 || DATED: March 7, 2023
18 GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE
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