“[s]ubstantial evidence is 16 more than a mere scintilla but less than a preponderance”
How later courts described this case
- “[s]ubstantial evidence is 16 more than a mere scintilla but less than a preponderance”
- finding that the record was “uncertain and 24 ambiguous” and remand was warranted where there were “significant factual 25 conflicts in the record between [the plaintiff’s] testimony and objective medical 26 evidence”
- “A district court cannot 28 proceed directly to credit a claimant’s testimony as true and then look to the record 1 || to determine whether there are any issues outstanding, as ‘this reverses the required 2 || order of analysis.’”
- “an ALJ ‘may not disregard 16 [a claimant’s testimony] solely because it is not substantiated affirmatively by 17 objective medical evidence’” (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 18 883 (9th Cir. 2006)
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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DENISE H.,1
11 Case No. 5:22-cv-01261-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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17 I. PROCEDURAL HISTORY
18 Plaintiff Denise H. (“Plaintiff”) filed a complaint seeking review of the
19 decision of the Commissioner of Social Security denying her application for
20 Supplemental Security Income (“SSI”). The parties filed consents to proceed before
21 the undersigned United States Magistrate Judge [Dkts. 11 and 12] and briefs [Dkts.
22 16 (“Pl. Br.”), 21 (“Def. Br.”) and 22 (“Reply”)] addressing disputed issues in the
23 case. The matter is now ready for decision. For the reasons set forth below, the
24 Court finds that this matter should be remanded.
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27 1 In the interest of privacy, this Order uses only the first name and the initial of
the last name of the non-governmental party.
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1 II. ADMINISTRATIVE DECISION UNDER REVIEW
2 Plaintiff filed an application for SSI on June 30, 2020, alleging disability
3 beginning June 30, 2020. [Dkt. 15, Administrative Record (“AR”) 15, 200-06.]
4 Plaintiff’s application was denied at the initial level of review and on
5 reconsideration. [AR 15, 87-91, 111-15.] A telephone hearing was held before
6 Administrative Law Judge Roxanne Fuller (“the ALJ”) on August 5, 2021. [AR 15,
7 33-48.]
8 On March 10, 2022, the ALJ issued an unfavorable decision applying the
9 five-step sequential evaluation process for assessing disability. [AR 15-28]; see 20
10 C.F.R. § 416.920(b)-(g)(1). At step one, the ALJ determined that Plaintiff had not
11 engaged in substantial gainful activity since the application date, June 30, 2020.
12 [AR 18.] At step two, the ALJ determined that Plaintiff has the following severe
13 impairment: panic disorder. [AR 18.] At step three, the ALJ determined that
14 Plaintiff does not have an impairment or combination of impairments that meets or
15 medically equals the severity of one of the impairments listed in Appendix I of the
16 Regulations. [AR 22]; see 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ found that
17 Plaintiff has the residual functional capacity (“RFC”) to perform a full range of
18 work at all exertional levels and is able to perform routine and repetitive tasks but is
19 limited to occasional interaction with co-workers and supervisors and is precluded
20 from interaction with the public. [AR 24.] At step four, the ALJ determined that
21 Plaintiff is unable to perform any past relevant work. [AR 26.] At step five, the
22 ALJ found that Plaintiff could perform other work that exists in significant numbers
23 in the national economy, including the representative occupations of dishwasher,
24 hospital cleaner, and packager. [AR 27-28.] Based on these findings, the ALJ
25 concluded that Plaintiff has not been disabled since the filing date of her application,
26 June 30, 2020. [AR 28.]
27 The Appeals Council denied review of the ALJ’s decision on May 18, 2022.
28 [AR 1-6.] This action followed.
1 Plaintiff contends that the ALJ failed to properly assess her testimony. [Pl.
2 Br. at 2-11.]
3 The Commissioner asserts that the ALJ’s decision is supported by substantial
4 evidence and should be affirmed. [Def. Br. at 2-7.]
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6 III. GOVERNING STANDARD
7 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to
8 determine if: (1) the Commissioner’s findings are supported by substantial
9 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v.
10 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r
11 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence … is
12 ‘more than a mere scintilla’ … [i]t means – and only means – ‘such relevant
13 evidence as a reasonable mind might accept as adequate to support a conclusion.’”
14 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v.
15 Comm’r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 2014) (“[s]ubstantial evidence is
16 more than a mere scintilla but less than a preponderance”) (internal quotation marks
17 and citation omitted).
18 The Court will uphold the Commissioner’s decision when “‘the evidence is
19 susceptible to more than one rational interpretation.’” Burch v. Barnhart, 400 F.3d
20 676, 681 (9th Cir. 2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
21 1989)). However, the Court may review only the reasons stated by the ALJ in the
22 decision “and may not affirm the ALJ on a ground upon which he did not rely.”
23 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the
24 Commissioner’s decision if it is based on harmless error, which exists if the error is
25 “inconsequential to the ultimate nondisability determination, or that, despite the
26 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin,
27 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted).
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1 Plaintiff contends the ALJ failed to properly consider her subjective symptom
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testimony. [Pl. Br. at 2-11.] As discussed below, the Court agrees with Plaintiff and
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finds that remand is appropriate.
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In evaluating a claimant’s subjective symptom testimony, an ALJ must
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engage in a two-step analysis. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36
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(9th Cir. 2007); 20 C.F.R. § 416.929. First, the ALJ must determine whether the
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claimant has presented objective medical evidence of an underlying impairment,
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which “‘could reasonably be expected to produce the pain or other symptoms
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alleged.’” Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d
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341, 344 (9th Cir. 1991) (en banc)). Second, if the claimant meets the first step and
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there is no evidence of malingering, “‘the ALJ can reject the claimant’s testimony
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about the severity of her symptoms only by offering specific, clear and convincing
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reasons for doing so.’” Lingenfelter, 504 F.3d at 1036; (quoting Smolen v. Chater,
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80 F.3d 1273, 1281 (9th Cir. 1996)). The ALJ must specifically identify the
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symptom testimony that is being rejected and the “facts in the record [that] lead to
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that conclusion.” Smolen, 80 F.3d at 1284; see also Soc. Sec. Ruling 16-3p Titles II
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& XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P, 2017 WL
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5180304, *4 (S.S.A. Oct. 25, 2017) (explaining that the ALJ must “evaluate the
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intensity and persistence of [the] individual’s symptoms ... and determine the extent
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to which [those] symptoms limit [his] ... ability to perform work-related activities
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....”). At the same time, the “ALJ is not required to believe every allegation of
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disabling pain, or else disability benefits would be available for the asking, a result
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plainly contrary to the Social Security Act.” Smartt v. Kijakazi, 53 F.4th 489, 499
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(9th Cir. 2022) (citation and internal quotation marks omitted).
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Plaintiff asserts that she is disabled due to a number of physical impairments,
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including asthma, degenerative disc disease, sleep apnea, multiple sclerosis,
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fibromyalgia, sciatica, COPD, high blood pressure, vertigo, aortic valve
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1 regurgitation, neuropathy, degenerative arthritis, dislocated coccyx, osteoarthritis,
2 irritable bowel syndrome, obesity, GERD, carpal tunnel problems, and muscle
3 deconditioning. [AR 41-42, 223.] Plaintiff also alleges that she suffers from
4 agoraphobia associated with panic attacks and other symptoms, panic disorder, and
5 depression. [AR 39, 223.] Plaintiff testified that since 2014, she has only left her
6 home once, when she had to go to the hospital. [AR 38-39.]
7 The ALJ appears to have issued a general finding dismissing Plaintiff’s
8 testimony regarding her alleged physical impairments, as unsupported by the
9 objective medical evidence. [AR 20-22, 24 (“Given the medical findings regarding
10 the claimant’s professed physical impairments, as discussed in detail above, the
11 undersigned has concluded that the claimant has no severe physical disorders.”).]
12 While objective medical evidence is a useful factor to consider in evaluating the
13 intensity and persistence of symptoms, the lack of corroborating medical evidence
14 cannot provide the sole basis for rejecting subjective symptom testimony. See
15 Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (“an ALJ ‘may not disregard
16 [a claimant’s testimony] solely because it is not substantiated affirmatively by
17 objective medical evidence’” (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880,
18 883 (9th Cir. 2006)); see also SSR 16-3p, 2017 WL 5180304 at *5 (“We will not
19 evaluate an individual’s symptoms based solely on objective medical evidence
20 unless that objective medical evidence supports a finding that the individual is
21 disabled.”).2
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2 Defendant suggests that Plaintiff did not challenge the ALJ’s finding that
26 there was no medical evidence to support the existence of any physical impairments.
[Def. Br. at 3; AR 24.] Contrary to Defendant’s argument, Plaintiff asserted that she
27 produced objective medical evidence of her underlying impairments (physical and
mental) in support of her claim challenging the rejection of her subjective symptom
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testimony. [Pl. Br. at 3-6.]
1 As for Plaintiff’s testimony regarding her mental impairments, the ALJ noted
2 that Plaintiff’s physician, Dr. Unger, “suggested she did not have agoraphobia, and
3 she did not display any particular deficit in mental functioning or diminished
4 mood.” [AR 24, 374.] The ALJ mischaracterizes Dr. Unger’s opinion. Dr. Unger
5 stated that while Plaintiff reported multiple concerns, including agoraphobia,
6 multiple sclerosis, COPD, and irritable bowel syndrome, he believed Plaintiff’s
7 impairments were due to Cushing’s Syndrome. [AR 374-75.] Dr. Unger explained
8 that Plaintiff’s weight, hypertension, body habitus, abdominal striae, and multiple
9 bruises on her forearms supported a diagnosis of Cushing’s Syndrome. [AR 375.]
10 And while Plaintiff was not considered to be in distress, Dr. Unger described
11 Plaintiff as anxious and noted that her symptoms included anxiety, depression, loss
12 of memory, and chronic pain. [AR 374-75.] Any confusion that Plaintiff had about
13 her diagnoses or the causes of her symptoms was not a sufficient basis for rejecting
14 her testimony. See Trevizo, 871 F.3d at 682, n.10 (“[T]here is no basis for assuming
15 that [the claimant] should know the underlying cause of her medical conditions, and
16 her confusion about why she gets headaches should not be counted against her.”).
17 The ALJ also found that records showing Plaintiff was treated at the hospital
18 for cyanide toxicity after a fire at her home in May 2019 conflicted with Plaintiff’s
19 testimony that she could not leave her home. [AR 24, 416.] Plaintiff explained,
20 however, that leaving her home was very traumatic. [AR 39.] Plaintiff testified that
21 she was transported to the hospital by ambulance and sedated during her hospital
22 stay. [AR 39, 416-17.] Hospital records confirm that in addition to having
23 difficulty breathing, Plaintiff was shaky, tearful, and anxious. [AR 416.] Thus,
24 Plaintiff’s single hospital visit does not constitute substantial evidence supporting a
25 finding that Plaintiff’s symptoms were not as severe as she claimed.3
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3 The ALJ also found that Plaintiff left her home to attend a consultative
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psychological evaluation in August 2020. [AR 25.] However, as Defendant
1 The ALJ further noted that Dr. Unger diagnosed Plaintiff with “complex
2 dependency syndrome, a personality disorder in which a person felt incapable of
3 taking care of themselves.” [AR 25, 395, 397.] According to the ALJ, this
4 diagnosis indicated that Dr. Unger “did not perceive [Plaintiff’s] alleged physical
5 and mental complaints as entirely credible.” [AR 25.] Yet, Dr. Unger’s records do
6 not corroborate this assertion. Rather, Dr. Unger opined that Plaintiff was not
7 employable or able to leave her apartment. [AR 395, 397.] As Dr. Unger never
8 questioned Plaintiff’s believability based on her diagnosis of complex dependency
9 syndrome, the ALJ’s reliance on this diagnosis to discount Plaintiff’s testimony is
10 not supported by substantial evidence.
11 Defendant also contends that Dr. Unger questioned the reliability of
12 Plaintiff’s complaints, as he reported that Plaintiff put forth poor effort on testing,
13 did not undergo an MRI or lumbar puncture to confirm the presence of multiple
14 sclerosis, overused pain medication, used respiratory medications inappropriately,
15 and smoked up to two packs of cigarettes a day “with no desire to stop” and because
16 her complaints of weakness or fatigue appeared to be due to deconditioning. [Def.
17 Br. at 5-6 (citing AR 19-21, 346, 370, 373, 486-88).] Although the ALJ mentioned
18 these findings in the discussion of the medical evidence, she did not cite them as
19 reasons for discounting Plaintiff’s testimony. Thus, Plaintiff’s asserted instances of
20 noncompliance do not constitute substantial evidence supporting the ALJ’s finding
21 that Plaintiff’s symptoms were not as severe as she testified. See Orn, 495 F.3d at
22 630 (the ALJ’s decision may not be affirmed “on a ground upon which he did not
23 rely”); Trevizo, 871 F.3d at 682 n.10 (“Because the discussion of those issues is not
24 in the section of the ALJ’s decision addressing [the claimant’s] symptom testimony,
25 they are not properly considered credibility findings.”).
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acknowledges, the evaluation was conducted by telehealth and was not evidence of
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Plaintiff’s ability to leave her home. [Def. Br. at 5, n.2; AR 404.]
1 Accordingly, the ALJ did not provide specific, clear, and convincing reasons
2 for rejecting Plaintiff’s subjective symptom testimony. See Lingenfelter, 504 F.3d at
3 1036.
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5 V. REMAND FOR FURTHER PROCEEDINGS
6 The Court has discretion to remand or reverse and award benefits. See
7 Trevizo, 871 F.3d at 682. It may be appropriate to direct an immediate award of
8 benefits when the record has been fully developed, no useful purpose would be
9 served by further proceedings, and the ALJ has failed to provide legally sufficient
10 reasons for rejecting evidence. Id. (citing Garrison v. Colvin, 759 F.3d 995, 1019
11 (9th Cir. 2014)). But when there are outstanding issues that must be resolved before
12 a determination can be made, and it is not clear from the record that the ALJ would
13 be required to find a claimant disabled if all the evidence were properly evaluated,
14 remand for further proceedings is appropriate. See Garrison, 759 F.3d at 1021;
15 Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir. 2000) (remand for further
16 proceedings rather than for the immediate payment of benefits is appropriate where
17 there are “sufficient unanswered questions in the record”).
18 In this case, there are outstanding issues that must be resolved before a proper
19 disability determination can be made. While the ALJ failed to adequately address
20 Plaintiff’s subjective symptom testimony, the ALJ made numerous, detailed
21 findings based on the objective medical evidence that raise questions about
22 Plaintiff’s level of functioning. See Treichler v. Comm’r of Soc. Sec. Admin., 775
23 F.3d 1090, 1104 (9th Cir. 2014) (finding that the record was “uncertain and
24 ambiguous” and remand was warranted where there were “significant factual
25 conflicts in the record between [the plaintiff’s] testimony and objective medical
26 evidence”). Therefore, the Court remands this case for further proceedings. See
27 Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017) (“A district court cannot
28 proceed directly to credit a claimant’s testimony as true and then look to the record
1 || to determine whether there are any issues outstanding, as ‘this reverses the required
2 || order of analysis.’”) (quoting Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir.
3 || 2015)); see also Treichler, 775 F.3d at 1106 (“[A] reviewing court is not required to
4 || credit claimants’ allegations regarding the extent of their impairments as true merely
5 || because the ALJ made a legal error in discrediting their testimony.”).
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7 VI. CONCLUSION
8 For all of the foregoing reasons, IT IS ORDERED that:
9 (1) the decision of the Commissioner is REVERSED and this matter is
10 |} REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further
11 || administrative proceedings consistent with this Memorandum Opinion and Order;
12 || and
13 (2) Judgment be entered in favor of Plaintiff.
14 IT IS ORDERED.
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16 || DATED: July 13, 2023
17 { f pA]
18 GAIF J. STANDISH
UNITED STATES MAGISTRATE JUDGE
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