# Michael Carnell Windon v. Kilolo Kijakazi

> District Court, C.D. California · April 3, 2023

URL: https://www.frixlaw.com/law-library/cases/9982887

## Case

- **Court:** District Court, C.D. California
- **Decided:** April 3, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9982887

## How later opinions describe it (automated extraction)

- holding “an ALJ does not provide specific, clear, and convincing reasons for 4 rejecting a claimant’s testimony by simply reciting the medical evidence in support of 5 his or her residual functional capacity determination”
- holding conservative 20 treatment “is not a proper basis for rejecting the claimant’s credibility where the 21 claimant has a good reason for not seeking more aggressive treatment”
- stating that a reviewing court “may not affirm simply by isolating a ‘specific 11 quantum of supporting evidence’” (citation omitted)

## Opinion text

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
8

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10 MICHAEL W.,1 Case No. EDCV 22-135-KK
11 Plaintiff,
12 v. MEMORANDUM AND ORDER

13 KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
14
Defendant.
15
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17 Plaintiff Michael W. (“Plaintiff”) seeks review of the final decision of the
18 Commissioner of the Social Security Administration (“Commissioner” or “Agency”)
19 denying his application for Title XVI Supplemental Security Income (“SSI”). The
20 parties have consented to the jurisdiction of a United States Magistrate Judge pursuant
21 to 28 U.S.C. § 636(c). For the reasons stated below, the Commissioner’s decision is
22 REVERSED and this action is REMANDED for further proceedings consistent with
23 this Order.
24 ///
25 ///
26 ///
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1 Partially redacted in compliance with Federal Rule of Civil Procedure
1 I.
2 PROCEDURAL HISTORY
3 On January 16, 2020, Plaintiff protectively filed an application for SSI alleging a
4 disability onset date of December 18, 2014. Administrative Record (“AR”) at 183-89;
5 see also id. at 15, 67, 87. Plaintiff’s application was denied initially on July 31, 2020,
6 id. at 53-67, 90-94, and upon reconsideration on December 4, 2020, id. at 68-87, 98-
7 104. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”).
8 Id. at 105-10.
9 On September 17, 2021, Plaintiff appeared with counsel and testified at a
10 telephonic hearing before the assigned ALJ. Id. at 30-52. A vocational expert also
11 testified at the hearing. Id. at 46-51. On October 6, 2021, the ALJ issued a decision
12 denying Plaintiff’s application. Id. at 12-29.
13 Plaintiff filed a request to the Agency’s Appeals Council to review the ALJ’s
14 decision. Id. at 178-80. On December 9, 2021, the Appeals Council denied Plaintiff’s
15 request for review. Id. at 1-6.
16 On January 23, 2022, Plaintiff filed the instant action. Dkt. 1, Compl.
17 On July 25, 2022, Plaintiff filed a Memorandum in Support of the Complaint.
18 Dkt. 17. On September 28, 2022, the Commissioner filed a Memorandum in Support
19 of the Answer. Dkt. 20. On October 12, 2022, Plaintiff filed a Reply. Dkt. 21.
20 The matter thus stands submitted.
21 II.
22 PLAINTIFF’S BACKGROUND
23 Plaintiff was born on July 9, 1971, and his alleged disability onset date is
24 December 18, 2014. AR at 183. He was forty-three years old on the alleged disability
25 onset date and fifty years old at the time of the hearing before the ALJ. Id. at 30, 183.
26 Plaintiff has an eleventh-grade education. Id. at 36, 273. He alleges disability based
27 on protruding discs in his back, high blood pressure, depression, numbness in his legs,
1 III.
2 STANDARD FOR EVALUATING DISABILITY
3 To qualify for benefits, a claimant must demonstrate a medically determinable
4 physical or mental impairment that prevents him from engaging in substantial gainful
5 activity, and that is expected to result in death or to last for a continuous period of at
6 least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). The
7 impairment must render the claimant incapable of performing the work he previously
8 performed and incapable of performing any other substantial gainful employment that
9 exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
10 To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ
11 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:
12 1. Is the claimant presently engaged in substantial gainful activity? If so, the
13 claimant is found not disabled. If not, proceed to step two.
14 2. Is the claimant’s impairment severe? If not, the claimant is found not disabled.
15 If so, proceed to step three.
16 3. Does the claimant’s impairment meet or equal one of the specific impairments
17 described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is
18 found disabled. If not, proceed to step four.2
19 4. Is the claimant capable of performing work he has done in the past? If so, the
20 claimant is found not disabled. If not, proceed to step five.
21 5. Is the claimant able to do any other work? If not, the claimant is found
22 disabled. If so, the claimant is found not disabled.
23 See Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949,
24 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1).
25
26
2 “Between steps three and four, the ALJ must, as an intermediate step, assess
the claimant’s [residual functional capacity],” or ability to work after accounting for
his verifiable impairments. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
27
1222-23 (9th Cir. 2009) (citing 20 C.F.R. § 416.920(e)). In determining a claimant’s
1 The claimant has the burden of proof at steps one through four, and the
2 Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54.
3 Additionally, the ALJ has an affirmative duty to assist the claimant in developing the
4 record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets his
5 burden of establishing an inability to perform past work, the Commissioner must
6 show that the claimant can perform some other work that exists in “significant
7 numbers” in the national economy, taking into account the claimant’s residual
8 functional capacity (“RFC”), age, education, and work experience. Tackett, 180 F.3d
9 at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
10 IV.
11 THE ALJ’S DECISION
12 A. STEP ONE
13 At step one, the ALJ found Plaintiff “has not engaged in substantial gainful
14 activity since January 16, 2020, the application date[.]” AR at 17.
15 B. STEP TWO
16 At step two, the ALJ found Plaintiff “has the following severe impairment:
17 spondylosis of the lumbar spine[.]” Id.
18 C. STEP THREE
19 At step three, the ALJ found Plaintiff “does not have an impairment or
20 combination of impairments that meets or medically equals the severity of one of the
21 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]” Id. at 19.
22 D. RFC DETERMINATION
23 The ALJ found Plaintiff has the following RFC:
24 [T]o perform light work as defined in 20 CFR 416.967(b) except
25 [Plaintiff] is limited to lifting or carrying no more than 20 pounds
26 occasionally and 10 pounds frequently; standing or walking for six hours
27 each in an eight-hour workday; and sitting for six hours in an eight-hour
1 balancing, stooping, kneeling, crouching, and crawling; but never
2 climbing ladders, ropes, or scaffolds. [Plaintiff] must avoid concentrated
3 exposure to hazardous conditions.
4 Id. at 20.
5 E. STEP FOUR
6 At step four, the ALJ found Plaintiff “is unable to perform any past relevant
7 work[.]” Id. at 24.
8 F. STEP FIVE
9 At step five, the ALJ found “there are jobs that exist in significant numbers in
10 the national economy that [Plaintiff] can perform,” including the jobs of “assembler,”
11 “routing clerk,” and “office helper.” Id. at 25.
12 The ALJ, therefore, concluded Plaintiff “has not been under a disability, as
13 defined in the Social Security Act, since January 16, 2020, the date the application was
14 filed[.]” Id. at 26.
15 V.
16 PLAINTIFF’S CLAIMS
17 Plaintiff presents two disputed issues: (1) whether the ALJ properly considered
18 Plaintiff’s subjective complaints of physical impairment, and (2) whether the ALJ
19 erred in finding Plaintiff’s mental impairment non-severe and failing to incorporate
20 mental limitations into Plaintiff’s RFC.3 Dkt. 17 at 2-3.
21 VI.
22 STANDARD OF REVIEW
23 Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner’s
24 final decision to deny benefits. The ALJ’s findings and decision should be upheld if
25 they are free of legal error and supported by substantial evidence based on the record
26
3 The Court finds the first issue dispositive of this matter and thus declines to
27
address the remaining issue. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012)
1 as a whole. Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d
2 742, 746 (9th Cir. 2007).
3 “Substantial evidence” is evidence that a reasonable person might accept as
4 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
5 Cir. 2007). It is more than a scintilla but less than a preponderance. Id. To
6 determine whether substantial evidence supports a finding, the reviewing court “must
7 review the administrative record as a whole, weighing both the evidence that supports
8 and the evidence that detracts from the Commissioner’s conclusion.” Reddick, 157
9 F.3d at 720 (citation omitted); see also Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir.
10 2012) (stating that a reviewing court “may not affirm simply by isolating a ‘specific
11 quantum of supporting evidence’” (citation omitted)). “If the evidence can reasonably
12 support either affirming or reversing,” the reviewing court “may not substitute its
13 judgment” for that of the Commissioner. Reddick, 157 F.3d at 720-21; see also Terry
14 v. Saul, 998 F.3d 1010, 1013 (9th Cir. 2021) (“Importantly, even where the evidence
15 of record is susceptible to more than one rational interpretation, we must defer to the
16 Commissioner’s interpretation of the evidence.” (internal quotation marks and
17 citation omitted)).
18 The Court may review only the reasons stated by the ALJ in her decision “and
19 may not affirm the ALJ on a ground upon which [s]he did not rely.” Orn v. Astrue,
20 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only be considered
21 harmless if it is “clear from the record” that the error was “inconsequential to the
22 ultimate nondisability determination.” Robbins v. Soc. Sec. Admin., 466 F.3d 880,
23 885 (9th Cir. 2006) (citation omitted).
24 ///
25 ///
26 ///
27 ///
1 VII.
2 THE ALJ FAILED TO PROPERLY CONSIDER
3 PLAINTIFF’S SUBJECTIVE COMPLAINTS
4 A. RELEVANT FACTS
5 1. Plaintiff’s Statements Regarding His Symptoms
6 At the hearing before the ALJ on September 17, 2021, Plaintiff testified
7 regarding the symptoms caused by his physical impairments. He stated his back hurts
8 “all the time, 24 hours a day” and he experiences “numbness” that “goes from one
9 side to the other.” AR at 39. Plaintiff indicated he lived with his mother and
10 stepfather at the time of the hearing. Id. at 36. He explained he “can’t really do
11 anything for [him]self like [he] used to” because his back pain makes it “hard for [him]
12 to move around.” Id. at 39. Plaintiff testified he sometimes needs help getting out of
13 bed, walking to the bathroom, or entering and exiting the bathtub. Id. According to
14 Plaintiff, he went to the emergency room “a couple of times” and the ambulance “had
15 to come get [him] from home because [he] couldn’t get up.” Id. at 41. Plaintiff
16 further testified he does not cook, shop, or do house or yard work. Id. at 42. He
17 stated he is “at home every day, all day” and spends “[f]our to five hours” sleeping
18 during the day. Id. at 41-42. Plaintiff estimated he can sit for twenty minutes at a
19 time, stand for “five minutes, maybe,” and lift “[m]aybe five pounds.” Id. at 43-44.
20 With respect to his treatment, Plaintiff reported that injections “helped for a limited
21 time.” Id. at 40. He also testified that radiofrequency ablation “worked for a while,”
22 but the pain would subsequently return. Id. at 46.
23 Previously, on April 2, 2020, Plaintiff completed a function report regarding
24 the effect of his symptoms on his daily activities. Id. at 214-21. In the function
25 report, Plaintiff indicated he was “homeless” and lived with family, with friends, or
26 “wherever” he could. Id. at 214. He reported experiencing pain “all day” and being
27 unable to stand for “long.” Id. Plaintiff further reported he could not “bend over to
1 did not do “ha[lf] the stuff [he] use[d] to because of [his] back,” which “just go[e]s out
2 at anytime.” Id. at 218.
3 2. The ALJ’s Decision
4 The ALJ appears to have rejected Plaintiff’s subjective complaints of physical
5 impairment on the grounds that (1) Plaintiff’s symptoms improved with treatment,
6 and (2) his treatment did not involve surgical invention. AR at 20-22.
7 B. APPLICABLE LAW
8 If “the record establishes the existence of a medically determinable impairment
9 that could reasonably give rise to the reported symptoms, an ALJ must make a finding
10 as to the credibility[4] of the claimant’s statements about the symptoms and their
11 functional effect.” Robbins, 466 F.3d at 883 (citations omitted). The ALJ’s
12 determination regarding the plaintiff’s subjective complaints must be supported by
13 “findings sufficiently specific to permit the court to conclude that the ALJ did not
14 arbitrarily discredit claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039
15 (9th Cir. 2008) (citation and internal quotation marks omitted).
16 The ALJ is required to engage in a two-step analysis. See Trevizo v. Berryhill,
17 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine whether the
18 claimant “has presented objective medical evidence of an underlying impairment
19 which could reasonably be expected to produce the pain or other symptoms alleged.”
20 Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)). If the claimant
21 meets the first step, and there is no evidence of malingering, “the ALJ can reject the
22 claimant’s testimony about the severity of his symptoms only by offering specific,
23 clear and convincing reasons for doing so.” Id. (quoting Garrison, 759 F.3d at 1014-
24 15). “The ALJ must state specifically which symptom testimony is not credible and
25
4 Social Security Ruling (“SSR”) 16-3p superseded SSR 96-7p and, in part,
26
eliminated use of the term “credibility” from Social Security Administration “sub-
regulatory policy” in order to “clarify that subjective symptom evaluation is not an
27
examination of an individual’s [overall character or truthfulness] . . . [and] more
1 what facts in the record lead to that conclusion.” Smolen v. Chater, 80 F.3d 1273,
2 1284 (9th Cir. 1996); see also Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir.
3 2015) (holding “an ALJ does not provide specific, clear, and convincing reasons for
4 rejecting a claimant’s testimony by simply reciting the medical evidence in support of
5 his or her residual functional capacity determination”).
6 “If the ALJ’s credibility finding is supported by substantial evidence, [a court]
7 may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.
8 2002). However, an ALJ’s failure to give specific, clear, and convincing reasons to
9 reject the claimant’s testimony regarding the severity of the symptoms is not harmless,
10 because it precludes the Court from conducting a meaningful review of the ALJ’s
11 reasoning. Brown-Hunter, 806 F.3d at 489.
12 C. ANALYSIS
13 Here, the ALJ found Plaintiff’s “medically determinable impairments could
14 reasonably be expected to cause [his] alleged symptoms.” AR at 21. Hence, because
15 there is no evidence of malingering, the ALJ was required to provide “specific, clear,
16 and convincing reasons” to properly reject Plaintiff’s subjective complaints of physical
17 impairment. Trevizo, 871 F.3d at 679. As discussed below, however, the ALJ failed
18 to do so.
19 1. Improvement with Treatment
20 The ALJ relied on her finding that Plaintiff experienced improvement with
21 treatment in rejecting Plaintiff’s subjective complaints of physical impairment. See
22 AR at 21-22. Plaintiff’s improvement with treatment, however, does not constitute a
23 convincing reason supported by substantial evidence for rejecting his subjective
24 complaints.
25 The Ninth Circuit has held that “[c]ycles of improvement and debilitating
26 symptoms are a common occurrence, and in such circumstances it is error for an ALJ
27 to pick out a few isolated instances of improvement over a period of months or years
1 Garrison, 759 F.3d at 1017 (citing Holohan v. Massanari, 246 F.3d 1195, 1205 (9th
2 Cir. 2001)); see also Guerra v. Berryhill, 448 F. Supp. 3d 1115, 1125 (D. Nev. 2020)
3 (finding principles of Garrison applicable in chronic pain context and finding ALJ
4 erred in rejecting claimant’s testimony on the basis of periods of improved pain). In
5 fact, “[o]ccasional symptom-free periods – and even the sporadic ability to work – are
6 not inconsistent with disability.” Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995).
7 Furthermore, “treatment records must be viewed in light of the overall diagnostic
8 record,” and it is error for an ALJ to “cherry-pick[]” medical evidence disfavoring a
9 claimant instead of considering such evidence in the context of the record as a whole.
10 Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014).
11 Here, the ALJ found that “the objective medical findings in the record
12 revealed largely improved findings and/or manageable symptoms with various
13 treatment modalities[.]” AR at 21. The ALJ’s finding, however, mischaracterizes the
14 record, which shows that Plaintiff experienced only limited and temporary
15 improvement with treatment:
16  Although Plaintiff reported some relief after receiving a lumbar epidural
17 steroid injection in March 2019, he rated his back pain at six out of ten at an
18 April 2019 appointment just one month later, id. at 267, and rated the pain
19 at seven to eight out of ten at a May 2019 appointment approximately two
20 months later, id. at 264.
21  Plaintiff underwent a bilateral lumbar radiofrequency ablation in July 2019
22 but rated his pain at five out of ten at an appointment in August 2019, just
23 one month later, and further reported the pain was “interfering in function,
24 [activities of daily living] and sleep.” Id. at 262.
25  In November 2019, Plaintiff received a lumbar epidural steroid injection
26 that initially reduced his pain to a two to four out of ten, id. at 253, but at a
27 January 2020 appointment, just two months later, he rated his back pain at
1  Although Plaintiff reported “50% relief” five days after undergoing a
2 lumbar radiofrequency ablation in February 2020, id. at 311, Plaintiff rated
3 his back pain at seven out of ten at an appointment in March 2020, just over
4 a month later, id. at 309. At the March 2020 appointment, Plaintiff also
5 reported the pain had decreased his ability to perform activities of daily
6 living “such as running errands and going to the restroom.” Id.
7  Plaintiff received another lumbar epidural steroid injection in June 2020, but
8 he reported less than one month later that his pain level was “back to
9 7/10.” Id. at 295, 298.
10  At an appointment in November 2020, less than three weeks after
11 undergoing another radiofrequency ablation, Plaintiff rated his pain at a five
12 to six out of ten. Id. at 283.
13  While a January 2021 lumbar epidural steroid injection initially reduced
14 Plaintiff’s pain to three out of ten, id. at 333, 386-91, Plaintiff reported in
15 March 2021, less than two months after the procedure, that his pain had
16 increased to four out of ten, id. at 330, and he reported in April 2021, less
17 than three months after the procedure, that his pain had increased to seven
18 out of ten, id. at 327.
19  While an April 2021 radiofrequency ablation initially reduced Plaintiff’s pain
20 to four out of ten, id. at 321, 360-65, Plaintiff reported in July 2021, less
21 than two months after the procedure, that his pain was “worsening” and
22 had increased to five to seven out of ten, id. at 316.
23 The record is, therefore, consistent with Plaintiff’s hearing testimony that epidural
24 injections and radiofrequency ablation provided only temporary relief. Id. at 40, 46.
25 Moreover, despite his use of narcotic pain medication throughout the relevant
26 period, Plaintiff consistently reported pain that interfered with his activities of daily
27 living and increased with prolonged sitting, walking, and standing. Id. at 253, 256,
1 324, 327, 336. In addition, objective examinations at in-person appointments
2 consistently showed stiffness, tenderness, and “very limited” range of motion at
3 Plaintiff’s lumbar spine. Id. at 254, 257, 260, 262, 264, 267, 306, 309, 311, 313. Thus,
4 the record establishes that Plaintiff’s symptoms persisted despite his limited
5 improvement with treatment.
6 Accordingly, because substantial evidence does not support the ALJ’s finding
7 that Plaintiff’s limited and temporary improvement with treatment is inconsistent with
8 his testimony, Plaintiff’s purported improvement with treatment does not constitute a
9 “specific, clear, and convincing reason[]” for rejecting Plaintiff’s subjective complaints
10 of physical impairment. Trevizo, 871 F.3d at 679.
11 2. Lack of Surgery
12 The ALJ also appears to have relied on the fact that Plaintiff has not undergone
13 surgery in rejecting Plaintiff’s subjective complaints of physical impairment. AR at 21.
14 Plaintiff’s lack of surgery, however, does not constitute a convincing reason supported
15 by substantial evidence for rejecting his subjective complaints.
16 Evidence of conservative treatment may be relevant to evaluating a claimant’s
17 subjective impairment testimony. See Parra, 481 F.3d at 750-51. Nonetheless,
18 conservative treatment “is not a proper basis for rejecting the claimant’s credibility
19 where the claimant has a good reason for not seeking more aggressive treatment.”
20 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
21 Here, the ALJ found Plaintiff underwent “various treatment modalities that did
22 not reach the level of surgical intervention[.]” AR at 21. First, to the extent this
23 finding amounted to a conclusion that Plaintiff received only conservative treatment,
24 such a conclusion is not supported by substantial evidence. During the relevant
25 period, Plaintiff was prescribed oxycodone,5 id. at 253, 256, 259, 262, 264, 267, 279,
26

27
5 “Oxycodone is a narcotic pain medication used to treat moderate to severe
1 281, 284, 287, 291, 295, 299, 302, 305, 308, 309, 311, 313, 316, 321, 325, 327, 331,
2 334, 337, and received multiple lumbar epidural steroid injections, id. at 253, 267, 298,
3 347-52, 386-91. Epidural steroid injections are not conservative treatment. See
4 Garrison, 759 F.3d at 1015 n.20 (“[W]e doubt that epidural steroid shots to the neck
5 and lower back qualify as ‘conservative’ medical treatment.”). Furthermore, courts
6 have declined to characterize treatment plans like Plaintiff’s consisting of not only
7 repeated epidural injections but also narcotic pain medication as conservative. See
8 Christine G. v. Saul, 402 F. Supp. 3d 913, 926 (C.D. Cal. 2019) (“Many courts have
9 previously found that strong narcotic pain medications and spinal epidural injections
10 are not considered to be ‘conservative’ treatment.”); see also Christie v. Astrue, No.
11 CV 10-3448-PJW, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (finding that,
12 while treatment modalities such as narcotic pain medication and steroid injections
13 “may not be the most aggressive available,” they do not constitute “conservative”
14 treatment).
15 Second, the record does not establish that more aggressive treatment
16 modalities, including surgery, were appropriate for, or available to, Plaintiff. Given
17 that – as the ALJ noted – no provider recommended surgery to treat Plaintiff’s
18 impairments, it was error for the ALJ to reject Plaintiff’s testimony on the basis of his
19 failure to seek surgery. See Carmickle, 533 F.3d at 1162 (holding conservative
20 treatment “is not a proper basis for rejecting the claimant’s credibility where the
21 claimant has a good reason for not seeking more aggressive treatment”); see also
22 James S. v. Saul, No. CV 18-3852-KS, 2019 WL 13062682, at *12 (C.D. Cal. July 5,
23 2019) (“[I]f Plaintiff was not recommended for surgery, then the ALJ cannot fault him
24 for failing to seek that treatment.” (emphasis in original)). In light of this record, it
25 was improper for the ALJ to draw her own inference regarding whether such
26 treatment was appropriate for or available to Plaintiff. See Marrical v. Berryhill, No.
27 EDCV 16-00398-RAO, 2017 WL 4877265, at *6 (C.D. Cal. Oct. 27, 2017) (finding
1 [wa]s no evidence in the record that more frequent or aggressive treatment was
2 available to treat Plaintiff’s conditions, and the ALJ was not qualified to draw her own
3 inference regarding whether such treatment was available”).
4 Accordingly, Plaintiff’s lack of surgery does not constitute a “specific, clear, and
5 convincing reason[]” for rejecting his subjective complaints of physical impairment.
6 Trevizo, 871 F.3d at 679.6
7 3. The ALJ’s Error Was Not Harmless
8 Finally, the ALJ’s error in rejecting Plaintiff’s subjective complaints of physical
9 impairment was not harmless, because it is not “clear from the record” that the error
10 was “inconsequential to the ultimate nondisability determination.” Robbins, 466 F.3d
11 at 885 (citation omitted). Plaintiff testified that, due to his back pain, he cannot sit for
12 more than twenty minutes, stand for more than five minutes, or lift more than five
13 pounds. AR at 43-44. The vocational expert at the hearing on Plaintiff’s application
14 did not testify that a person with Plaintiff’s vocational background and these alleged
15 limitations would be able to perform work in the national economy. See id. at 46-51.
16 In fact, the vocational expert testified that no work would be available to a
17 hypothetical individual with Plaintiff’s vocational background who needed a five-
18 minute break every hour due to pain. Id. at 50-51. Based on this record, the Court
19 cannot conclude the error in rejecting Plaintiff’s subjective complaints of physical
20
6 The Commissioner argues the ALJ additionally relied on “[o]bjective medical
21
evidence featuring generally ‘mild’ diagnostic laboratory findings” in rejecting
Plaintiff’s subjective complaints. See dkt. 20 at 14. While the ALJ summarizes
22
Plaintiff’s medical history, including diagnostic imaging results, see AR at 22, the ALJ
does not cite Plaintiff’s imaging results as a basis for rejecting his subjective
23
complaints. See Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020) (“[P]roviding a
summary of medical evidence . . . is not the same as providing clear and convincing
24
reasons for finding the claimant’s symptom testimony not credible.” (quoting Brown-
Hunter, 806 F.3d at 494) (emphasis in original)). Because the Court “may not affirm
25
the ALJ on a ground upon which [s]he did not rely,” Orn, 495 F.3d at 630, the Court
rejects the Commissioner’s argument. Moreover, “an ALJ cannot insist on clear
26
medical evidence to support each part of a claimant’s subjective pain testimony when
there is no objective testimony evincing otherwise.” Smartt v. Kijakazi, 53 F.4th 489,
27
498 (9th Cir. 2022); see also Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005)
1 impairment was harmless. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050,
2 1056 (9th Cir. 2006) (“[W]here the ALJ’s error lies in a failure to properly discuss
3 competent lay testimony favorable to the claimant, a reviewing court cannot consider
4 the error harmless unless it can confidently conclude that no reasonable ALJ, when
5 fully crediting the testimony, could have reached a different disability
6 determination.”); see also Sibrian v. Berryhill, No. EDCV 18-1090-E, 2019 WL
7 932479, at *6 (C.D. Cal. Feb. 26, 2019) (finding ALJ’s error in rejecting plaintiff’s
8 testimony not harmless where vocational expert “did not testify there are jobs
9 performable by a person as limited as Plaintiff claims to be”).
10 VIII.
11 RELIEF
12 A. APPLICABLE LAW
13 “When an ALJ’s denial of benefits is not supported by the record, the proper
14 course, except in rare circumstances, is to remand to the agency for additional
15 investigation or explanation.” Hill, 698 F.3d at 1162 (citation omitted). “We may
16 exercise our discretion and direct an award of benefits where no useful purpose would
17 be served by further administrative proceedings and the record has been thoroughly
18 developed.” Id. (citation omitted). “Remand for further proceedings is appropriate
19 where there are outstanding issues that must be resolved before a determination can
20 be made, and it is not clear from the record that the ALJ would be required to find
21 the claimant disabled if all the evidence were properly evaluated.” Id. (citations
22 omitted); cf. Reddick, 157 F.3d at 729 (“We do not remand this case for further
23 proceedings because it is clear from the administrative record that Claimant is entitled
24 to benefits.”).
25 B. ANALYSIS
26 The record has not been fully developed in this matter. The ALJ must properly
27 consider Plaintiff’s subjective complaints of physical impairment. If the ALJ decides
1 | sufficient reasons supported by substantial evidence for making such a determination.
2 | See Hill, 698 F.3d at 1162. Accordingly, remand for further proceedings is
3 | appropriate.
4 IX.
5 CONCLUSION
6 For the foregoing reasons, IT IS ORDERED that judgment be entered
7 | REVERSING the decision of the Commissioner and REMANDING this action for
8 | further proceedings consistent with this Order. IT IS FURTHER ORDERED that
9 | the Clerk of the Court serve copies of this Order and the Judgment on counsel for
10 | both parties.

12 | Dated: April 3, 2023 [unr
13 HONORABLEAKENLY KTYA KATO
United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9982887. Public record. Not legal advice.