Opinion

Alishia Hopkins v. Kilolo Kijakazi

Court
District Court, C.D. California
Filed
Apr 21, 2023
Cited by
0 cases
Authority
More cited than 16.4%

noting that “once the claimant 26 produces objective medical evidence of an underlying impairment, an [ALJ] may 27 not reject a claimant’s subjective complaints based solely on a lack of objective 28 1 2 omitted

How later courts described this case

  • noting that “once the claimant 26 produces objective medical evidence of an underlying impairment, an [ALJ] may 27 not reject a claimant’s subjective complaints based solely on a lack of objective 28 1 2 omitted
  • remand for 4 || further proceedings rather than for the immediate payment of benefits is appropriate 5 || where there are “sufficient unanswered questions in the record”
  • “Unless the district court concludes 27 that further administrative proceedings would serve no useful purpose, it may not 28 1 || remand with a direction to provide benefits.”
  • “Because we remand the case to the ALJ for the reasons stated, we decline 21 to reach [plaintiff’s] alternative ground for remand.”

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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12 ALISHIA H.,

Case No. 5:22-cv-00496-GJS

13 Plaintiff,

v. MEMORANDUM OPINION AND

14 ORDER

KILOLO KIJAKAZI, Acting

15 Commissioner of Social Security,

16 Defendant.

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18 I. PROCEDURAL HISTORY

19 Plaintiff Alishia H.1 filed a Complaint seeking review of the decision of the

20 Commissioner of Social Security denying her applications for a period of disability

21 and Disability Insurance Benefits (“DIB”) and for Supplemental Security Income

22 (“SSI”) payments. The parties filed consents to proceed before a United States

23 Magistrate Judge (ECF Nos. 13, 29), and briefs (ECF Nos. 22 (“Pl.’s Br.”), 27

24 (“Def.’s Br.”), 28 (“Pl.’s Reply Br.”) addressing the disputed issues in the case. The

25 matter is now ready for decision. For the reasons set forth below, the Court finds

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1 In the interest of privacy, this Order uses only the first name and last initial of

28 the non-governmental party in this case.

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3 II. ADMINISTRATIVE DECISION UNDER REVIEW

4 Plaintiff filed an application for DIB and SSI payments on January 28, 2020,

5 and December 13, 2019, respectively, alleging disability commencing on September

6 10, 2016. (ECF Nos., 15, 19, Administrative Record (“AR”) 15; see also AR 291,

7 297.) Plaintiff’s application was denied at the initial level of review and on

8 reconsideration. (AR 15, 92-93, 134-35.) A telephonic hearing was held before

9 Administrative Law Judge Josephine Arno (“the ALJ”) on July 6, 2021. (AR 15-

10 29.)

11 On September 27, 2021, the ALJ issued an unfavorable decision applying the

12 five-step sequential evaluation process for assessing disability. (AR 15-29); see 20

13 C.F.R. §§ 404.1520(b)-(g)(1), 416.1520(b)-(b)(1). At step one, the ALJ determined

14 that Plaintiff has not engaged in substantial gainful activity since the alleged onset

15 date. (AR 17.) At step two, the ALJ determined that Plaintiff has the following

16 severe impairments: breast cancer, status post lumpectomy and chemotherapy;

17 bipolar disorder; anxiety disorder; and major depressive disorder. (AR 17.) At step

18 three, the ALJ determined that Plaintiff does not have an impairment or combination

19 of impairments that meets or medically equals the severity of one of the

20 impairments listed in Appendix 1 of the Regulations. (AR 18); see 20 C.F.R. pt.

21 404, subpt. P, app. 1. The ALJ found that Plaintiff has the residual functional

22 capacity (“RFC”) to perform light work, as defined in 20 C.F.R. §§ 404.1567(b),

23 404.967(b), as follows:

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[She] is occasionally able to climb ladders, ropes, or scaffolds; she may

25 frequently climb ramps or stairs; she may frequently balance, stoop,

kneel, crouch, or crawl; she is able to understand, remember and carry

26 out simple, routine work tasks but not at a production rate pace, for

example, no assembly line jobs; she may tolerate occasional workplace

27 changes; she may have occasional interaction with coworkers and

supervisors; and she may have no contact with the public.

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2 past relevant work as a recreation leader, and a home attendant. (AR 26-27.) At

3 step five, based on the testimony of the vocational expert (“VE”), the ALJ found

4 that Plaintiff could perform other jobs existing in significant numbers in the national

5 economy, including representative jobs such as a houskeeping cleaner, a marker,

6 and an investigator, dealer accounts. (AR 27-28.) Based on these findings, the ALJ

7 found Plaintiff not disabled through the date of the decision. (AR 29.)

8 The Appeals Council denied review of the ALJ’s decision on January 26,

9 2022. (AR 1-5.) This action followed.

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11 III. GOVERNING STANDARD

12 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to

13 determine if: (1) the Commissioner’s findings are supported by substantial

14 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v.

15 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r

16 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence . . . is

17 ‘more than a mere scintilla’ . . . [i]t means -- and only means -- ‘such relevant

18 evidence as a reasonable mind might accept as adequate to support a conclusion.’”

19 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v.

20 Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal quotation marks

21 and citation omitted).

22 The Court will uphold the Commissioner’s decision when “the evidence is

23 susceptible to more than one rational interpretation.” See Molina v. Astrue, 674

24 F.3d 1104, 1110 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. §

25 404.1502(a). However, the Court may review only the reasons stated by the ALJ in

26 his decision “and may not affirm the ALJ on a ground upon which he did not rely.”

27 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the

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2 “inconsequential to the ultimate nondisability determination, or if despite the legal

3 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin,

4 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted).

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6 IV. DISCUSSION

7 Plaintiff raises the following issues challenging the ALJ’s findings and

8 determination of non-disability: (1) the ALJ erred by failing to adopt or explain her

9 rejection of portions of the opinion of consulting examiner Kim Chronister, Psy.D.

10 (Pl.’s Br. 1); and (2) the ALJ failed to properly evaluate Plaintiff’s subjective

11 symptom testimony relating to her mental health issues. (Pl.’s Br. 1.) The Court

12 addresses Plaintiff’s second issue first and, as set forth below, the Court finds that

13 remand is appropriate.

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15 A. SUBJECTIVE SYMPTOM TESTIMONY

16 1. Legal Standard

17 In evaluating a claimant’s subjective symptom testimony, an ALJ must

18 engage in a two-step analysis. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36

19 (9th Cir. 2007); 20 C.F.R. § 404.1529(c). First, the ALJ must determine whether the

20 claimant has presented objective medical evidence of an underlying impairment

21 which “could reasonably be expected to produce the pain or other symptoms

22 alleged.” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341,

23 344 (9th Cir. 1991) (en banc)). Second, if the claimant meets the first step and there

24 is no evidence of malingering, “the ALJ can reject the claimant’s testimony about

25 the severity of her symptoms only by offering specific, clear and convincing reasons

26 for doing so.” Id. at 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.

27 1996) (internal quotation marks omitted)). At the same time, the “ALJ is not

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2 would be available for the asking, a result plainly contrary to the Social Security

3 Act.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022) (citation and internal

4 quotation marks omitted).

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6 2. Analysis

7 The ALJ summarized Plaintiff’s subjective symptom testimony as follows:

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[Plaintiff] testified she stopped working [in 2016] due to mental health

9 issues, asserting she experienced a mental breakdown for which she had

to seek treatment. [She] alleged she continued to struggle with mental

10 health problems despite seeing a psychiatrist and taking psychotropic

medications. She complained of experiencing depression, confusion,

11 concentration and memory deficits, and social anxiety. She maintained

she experienced difficulty concentrating and had memory deficits on a

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daily basis and mentioned forgetting doctor’s appointments as an

13 example. Moreover, [she] maintained her anxiety and depression

symptoms had become more severe since her [2019] cancer diagnosis

14 and subsequent treatment. [¶] . . . As a result of her chemotherapy

treament, [she] complained of memory problems, forgetfulness, and

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confusion.

16 (AR 20.) Plaintiff also generally testified that physically she has difficulty with

17 simple tasks due to fatigue, body aches, and pain and numbness in her hands and

18 feet, and was told that her memory and concentration deficits were related to

19 chemotherapy, which caused her forgetfulness and confusion. (AR 40-43.) She

20 also stated she usually has to rest by the middle of the day due to fatigue and body

21 pain, takes medications for sleep and anxiety, and would struggle with simple work

22 tasks due to poor focus and needing breaks due to fatigue. (AR 42-43.)

23 The ALJ first found that although Plaintiff’s medically determinable

24 impairments could reasonably be expected to cause some of the alleged symptoms,

25 her “statements concerning the intensity, persistence and limiting effects of these

26 symptoms are inconsistent with the residual functional capacity assessment herein.”

27 (AR 20 (emphasis added).) The Court observes that “[b]ecause the claimant’s

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2 claimant’s RFC, it cannot be discredited because it is inconsistent with that RFC.”

3 Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017). Thus, the ALJ cannot

4 “properly evaluate the claimant’s credibility based on a predetermined RFC” and, to

5 do so, “puts the cart before the horse.” Id. at 1154 & n.4. That is because, without

6 more, the Court cannot simply infer from that language “‘that the ALJ rejected [the

7 claimant’s] testimony to the extent it conflicted with the medical evidence’” as

8 summarized by the ALJ. Id. at 1154-55 (quoting Treichler v. Comm’r of Soc. Sec.

9 Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (alteration in original). Indeed, the use

10 of this language by the ALJ implies that she arrived at an RFC determination for

11 sedentary work with various limitations and then found that plaintiff’s subjective

12 symptom testimony supported that determination, rather than conducting a

13 “thorough discussion and analysis of the objective medical and other evidence,

14 including the individual’s complaints of pain and other symptoms” and taking that

15 information “into account when determining the RFC.” Id. at 1153 (citing Garrison

16 v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014)) (emphases added). This is an

17 insufficient basis for discrediting testimony, but the error may be harmless if the

18 ALJ provides other legally sufficient reasons for discounting the claimant’s

19 testimony. Id. at 1154-55. As discussed below, the ALJ did not provide any legally

20 sufficient reasons for discounting plaintiff’s testimony. Thus, the error in this case

21 was not harmless.

22 The ALJ also found that the record evidence was not consistent with

23 Plaintiff’s subjective symptom allegations regarding her mental impairment

24 limitations:

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The undersigned has considered [Plaintiff’s] allegations regarding the

26 severity of her mental impairments and resulting functional limitations,

but finds her assertions were not consistent with the objective medical

27 findings in the record. The record indicated the longitudinal finings of

ongoing depression and anxiety symptoms for which [she] received

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1 generally indicated [Plaintiff’s] symptoms waxed and waned in severity,

2 as on certain dates her mood was noted to be irritable and anxious, while

on other dates her mood was noted to be euthymic. On limited treatment

3 dates [she] reported she experienced passive suicidal ideations.

However, the undersigned noted [Plaintiff] has never been hospitalized

4 due to an exacerbation of psychiatric symptoms, episodes of

decompensation, or feeling suicidal. She has not required emergency

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room treatment due to an exacerbation of mental health symptoms.

6 Furthermore, the record did not contain any mental health treatment

since approximately April 2020, and consequently, it was difficult to

7 corroborate [her] assertions that her mental health symptoms had

actually become more severe in the aftermath of her cancer treatment.

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Accordingly, the undersigned finds the evidence of record was not

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consistent with [Plaintiff’s] allegations.[2]

10 (AR 20.)

11 To the extent the ALJ suggests that Plaintiff’s subjective symptom testimony

12 should be discounted (or that she should be found not disabled) because she had

13 never been hospitalized due to her psychiatric symptoms, or received emergency

14 mental health treatment, such an inference has been rejected by the Ninth Circuit.

15 Cf. Schiaffino v. Saul, 799 F. App’x 473, 476 (9th Cir. Jan. 9, 2020) (holding that

16 “[h]ospitalization is not required to show that mental health conditions such as

17 PTSD, OCD, and anxiety are disabling from employment”) (citable for its

18 persuasive value pursuant to Ninth Circuit Rule 36-3). Likewise, that a person who

19 suffers from panic attacks, anxiety, and depression “makes some improvement does

20 not mean that the person’s impairments no longer seriously affect her.” Holohan v.

21 Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001).

22 Here, although the ALJ acknowledged that Plaintiff’s symptoms “waxed and

23 waned” in severity, she did not explicitly state the significance of this finding as it

24 relates to Plaintiff’s subjective symptom testimony. In any event, in the context of

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2 The ALJ made similar findings regarding Plaintiff’s subjective complaints

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regarding residual physical symptoms from her cancer treatment, “including fatigue,

27 generalized pain, and swelling and numbness in her extremities,” finding that

Plaintiff’s “assertions that her symptoms were ongoing with no improvement were

28 not consistent with the medical evidence of record.” (AR 21.)

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2 unexpected. As the Ninth Circuit recently explained, “[c]ycles of improvement and

3 debilitating symptoms are a common occurrence, and in such circumstances it is

4 error for an ALJ to pick out a few isolated instances of improvement over a period

5 of months or years and to treat them as a basis for concluding a claimant is capable

6 of working.” Garrison, 759 F.3d at 1017 (citing Holohan, 246 F.3d at 1205); see

7 also Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir. 2011) (citations omitted)

8 (“There can be a great distance between a patient who responds to treatment and one

9 who is able to enter the workforce, and that difference is borne out in [the] treatment

10 notes. Those notes show that although [plaintiff] had improved with treatment, she

11 nevertheless continued to frequently experience bouts of crying and feelings of

12 paranoia. The ALJ was not permitted to ‘cherry-pick’ from those mixed results to

13 support a denial of benefits.”). As noted by the Ninth Circuit, “[r]eports of

14 ‘improvement’ in the context of mental health issues must be interpreted with an

15 understanding of the patient’s overall well-being and the nature of her symptoms.”

16 Garrison, 759 F.3d at 1017 (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,

17 1200-01 (9th Cir. 2008); see also Holohan, 246 F.3d at 1205 (“[The treating

18 physician’s] statements must be read in context of the overall diagnostic picture he

19 draws. That a person who suffers from severe panic attacks, anxiety, and depression

20 makes some improvement does not mean that the person’s impairments no longer

21 seriously affect her ability to function in a workplace.”).

22 Additionally, as the Ninth Circuit has established, “providing a summary of

23 medical evidence . . . is not the same as providing clear and convincing reasons for

24 finding the claimant’s symptom testimony not credible.” Lambert v. Saul, 980 F.3d

25 1266, 1278 (9th Cir. 2020) (quoting Brown-Hunter, 806 F.3d at 494 (“providing a

26 summary of medical evidence in support of a residual functional capacity finding is

27 not the same as providing clear and convincing reasons for finding the claimant’s

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2 claimant’s testimony is ‘not consistent with the objective medical evidence,’ without

3 any ‘specific finding in support’ of that conclusion, is insufficient.” Treichler v.

4 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (citation omitted).

5 The Court finds the ALJ’s subjective symptom testimony determination here

6 to be virtually indistinguishable from the subjective symptom testimony

7 determination rejected by the Ninth Circuit in Brown-Hunter. As in Brown-Hunter,

8 the ALJ here “simply stated her . . . conclusion [regarding Plaintiff’s subjective

9 symptom testimony] and then summarized the medical evidence supporting her RFC

10 determination.” Brown-Hunter, 806 F.3d at 494. The ALJ did not then identify the

11 testimony she found not credible, and “link that testimony to the particular parts of

12 the record” supporting her non-credibility determination. Id. In short, “[t]his is not

13 the sort of explanation or the kind of ‘specific reasons’ we must have in order to

14 review the ALJ’s decision meaningfully, so that we may ensure that the claimant’s

15 testimony was not arbitrarily discredited,” nor can the error be found harmless. Id.

16 The Court determines, therefore, that this was not a specific, clear, and

17 convincing reason for discounting Plaintiff’s subjective symptom testimony.

18 It bears noting that equally fatal to the ALJ’s failure to identify the testimony

19 she found not credible and link it to the record, is the fact that while a lack of

20 objective medical evidence supporting a claimant’s subjective complaints is one

21 factor that an ALJ can consider in evaluating symptom testimony (Burch v.

22 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005), it cannot provide the only basis to

23 reject a claimant’s subjective symptom testimony. Trevizo v. Berryhill, 871 F.3d

24 664, 679 (9th Cir. 2017) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883

25 (9th Cir. 2006)); see also Bunnell, 947 F.2d at 345 (noting that “once the claimant

26 produces objective medical evidence of an underlying impairment, an [ALJ] may

27 not reject a claimant’s subjective complaints based solely on a lack of objective

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2 omitted).

3 Here, the ALJ provided a detailed summary of Plaintiff’s treatment history,

4 highlighting the waxing and waning of Plaintiff’s symptoms. Even assuming that the

5 ALJ’s determination that the record evidence did not support Plaintiff’s testimony

6 was a specific, clear, and convincing reason to discount that testimony -- which the

7 Court did not find -- it cannot be, as it was here, the only reason for rejecting her

8 subjective symptom testimony.

9 Where, as here, the ALJ fails to state legally sufficient reasons for discounting

10 a claimant’s subjective complaints, a court ordinarily cannot properly affirm the

11 administrative decision. See Robbins, 466 F.3d 884-85. The Court is unable to

12 conclude that the ALJ’s errors in evaluating Plaintiff’s subjective complaints were

13 “harmless” or “inconsequential to the ultimate non-disability determination.” Brown-

14 Hunter, 806 F.3d at 492.

15 Remand is warranted on this issue.

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17 B. DR. CHRONISTER’S OPINION

18 Having found that remand is warranted as discussed above, the Court declines

19 to address Plaintiff’s remaining issue. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th

20 Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline

21 to reach [plaintiff’s] alternative ground for remand.”).

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23 V. REMAND FOR FURTHER PROCEEDINGS

24 As the circumstances of this case suggest that further administrative

25 proceedings could remedy the ALJ’s errors, remand is appropriate. See Dominguez

26 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes

27 that further administrative proceedings would serve no useful purpose, it may not

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1 || remand with a direction to provide benefits.”); Treichler, 775 F.3d at 1101, n.5

2 || (remand for further administrative proceedings is the proper remedy “‘in all but the

3 || rarest cases”); Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir. 2000) (remand for

4 || further proceedings rather than for the immediate payment of benefits is appropriate

5 || where there are “sufficient unanswered questions in the record”).

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7 VI. CONCLUSION

8 For all the foregoing reasons, IT IS ORDERED that:

9 (1) the decision of the Commissioner is REVERSED and this matter

10 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further

11 administrative proceedings consistent with this Memorandum Opinion and

12 Order; and

13 (2) Judgment be entered in favor of Plaintiff.

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15 IT IS SO ORDERED.

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17 || DATED: April 21, 2023 Uo

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19 GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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