“[s]ubstantial evidence is 24 more than a mere scintilla but less than a preponderance”
How later courts described this case
- “[s]ubstantial evidence is 24 more than a mere scintilla but less than a preponderance”
- “A district court cannot 19 proceed directly to credit a claimant’s testimony as true and then look to the record 20 to determine whether there are any issues outstanding, as ‘this reverses the required 21 order of analysis.’”
- remand for further 7 proceedings rather than for the immediate payment of benefits is appropriate where 8 there are “sufficient unanswered questions in the record”
- finding that the record was “uncertain and 15 ambiguous” and remand was warranted where there were “significant factual 16 conflicts in the record between [the plaintiff’s] testimony and objective medical 17 evidence”
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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LUIS C.,1
11 Case No. 5:22-cv-01888-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 Luis C. (“Plaintiff”) filed a complaint seeking review of the decision
19 of the Commissioner of Social Security denying his application for Disability
20 Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). The parties
21 filed consents to proceed before the undersigned United States Magistrate Judge
22 [Dkt. 11 and 12] and briefs [Dkt. 20 (“Pl. Br.”) and 24 (“Def. Br.”)] addressing a
23 disputed issue in the case. The matter is now ready for decision. For the reasons set
24 forth below, the 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 DIB on June 29, 2018, alleging disability
3 beginning May 5, 2012. [Dkt. 17, Administrative Record (“AR”) 16, 186-87.]
4 Plaintiff’s application was denied at the initial level of review and on
5 reconsideration. [AR 16, 101-03, 105-07.] A telephone hearing was held before
6 Administrative Law Judge Paula M. Martin (“the ALJ”) on June 16, 2021. [AR 16,
7 32-54.]
8 In a decision dated September 28, 2021, the ALJ found Plaintiff was not
9 disabled, as defined by the Act. [AR 16-25.] The ALJ noted Plaintiff had been
10 found not disabled in a prior administrative law judge decision, dated March 21,
11 2017, and Plaintiff last met the insured status requirements on December 31, 2017.
12 [AR 19.] Therefore, the ALJ determined that the relevant period at issue in this case
13 is from March 22, 2017, the day after the prior administrative law judge decision,
14 through December 31, 2017, Plaintiff’s date last insured. [AR 19.]
15 The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. §
16 404.1520. [AR 16-25]; see 20 C.F.R. § 404.1520(b)-(g)(1). At step one, the ALJ
17 determined that Plaintiff had not engaged in substantial gainful activity during the
18 period beginning March 22, 2017, the day after the prior administrative law judge
19 decision, through his date last insured of December 31, 2017. [AR 19.] At step
20 two, the ALJ determined that Plaintiff has the following severe impairment:
21 degenerative disc disease of the bilateral ankles. [AR 19.] At step three, the ALJ
22 determined that Plaintiff does not have an impairment or combination of
23 impairments that meets or medically equals the severity of one of the impairments
24 listed in Appendix I of the Regulations. [AR 20]; see 20 C.F.R. Pt. 404, Subpt. P,
25 App. 1. Next, the ALJ found that Plaintiff has the residual functional capacity
26 (“RFC”) to perform a light work, as defined in 20 C.F.R. § 404.1567(b), except he
27 can occasionally operate bilateral foot controls. [AR 32.] At step four, the ALJ
28 determined that Plaintiff is unable to perform any past relevant work. [AR 23-24.]
1 At step five, the ALJ found that Plaintiff could perform other work that exists in
2 significant numbers in the national economy, such as the representative occupations
3 of cashier II, factory worker, and ticket seller. [AR 24-25.] Based on these
4 findings, the ALJ concluded that Plaintiff has not been under a disability at any time
5 from March 22, 2017, the day after the prior administrative law judge decision,
6 through December 31, 2017, his date last insured. [AR 25.]
7 The Appeals Council denied review of the ALJ’s decision on September 12,
8 2022. [AR 1-6.] This action followed.
9 Plaintiff now contends that the ALJ failed to properly assess his subjective
10 symptom testimony. [Pl. Br. at 6-14.]
11 The Commissioner asserts that the ALJ’s decision is supported by substantial
12 evidence and should be affirmed. [Def. Br. at 2-9.]
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14 III. GOVERNING STANDARD
15 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to
16 determine if: (1) the Commissioner’s findings are supported by substantial
17 evidence; and (2) the Commissioner used correct legal standards. See Carmickle v.
18 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r
19 Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence … is
20 ‘more than a mere scintilla’ … [i]t means – and only means – ‘such relevant
21 evidence as a reasonable mind might accept as adequate to support a conclusion.’”
22 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted); Gutierrez v.
23 Comm’r of Soc. Sec., 740 F.3d 519, 522 (9th Cir. 2014) (“[s]ubstantial evidence is
24 more than a mere scintilla but less than a preponderance”) (internal quotation marks
25 and citation omitted).
26 The Court will uphold the Commissioner’s decision when “‘the evidence is
27 susceptible to more than one rational interpretation.’” Burch v. Barnhart, 400 F.3d
28 676, 681 (9th Cir. 2005) (quoting Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
1 1989)). However, the Court may review only the reasons stated by the ALJ in the
2 decision “and may not affirm the ALJ on a ground upon which he did not rely.”
3 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the
4 Commissioner’s decision if it is based on harmless error, which exists if the error is
5 “inconsequential to the ultimate nondisability determination, or that, despite the
6 error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin,
7 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted).
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IV. DISCUSSION
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Plaintiff contends the ALJ failed to provide specific, clear, and convincing
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reasons for discounting his subjective symptom testimony. [Pl. Br. at 6-12.]
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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. § 404.1529. 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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1 ....”). At the same time, the “ALJ is not required to believe every allegation of
2 disabling pain, or else disability benefits would be available for the asking, a result
3 plainly contrary to the Social Security Act.” Smartt v. Kijakazi, 53 F.4th 489, 499
4 (9th Cir. 2022) (citation and internal quotation marks omitted).
5 Plaintiff asserts that he is disabled due to problems with his ankles and feet.2
6 [AR 38-46.] Plaintiff also complained that he has difficulty sitting, standing, and
7 walking. [AR 41-46.]
8 The ALJ discounted Plaintiff’s testimony based on a lack of supporting,
9 objective medical evidence. [AR 21-23 (“[m]ultiple physical examinations …
10 reveal no objective evidence that shows the claimant had difficulty ambulating …
11 [or] required an assistive device”; “claimant was noted to have full motor strength
12 and normal sensation”; “no evidence of swelling or edema in his legs”; “[t]he
13 physical findings from the claimant’s routine office visits remained generally stable
14 during the period at issue”).] While objective medical evidence is a useful factor to
15 consider in evaluating the intensity and persistence of symptoms, the lack of
16 corroborating medical evidence cannot provide the sole basis for rejecting subjective
17 symptom testimony. See Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017)
18 (“an ALJ ‘may not disregard [a claimant’s testimony] solely because it is not
19 substantiated affirmatively by objective medical evidence’” (quoting Robbins v. Soc.
20 Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)); see also SSR 16-3p, 2017 WL
21 5180304 at *5 (“We will not evaluate an individual’s symptoms based solely on
22 objective medical evidence unless that objective medical evidence supports a
23 finding that the individual is disabled.”).
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2 The ALJ determined that although Plaintiff complained of back pain, there
27 was no medical evidence “to substantiate the existence of a medically determinable
impairment through the date last insured.” [AR 20, 22.] Plaintiff does not challenge
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this finding.
1 The ALJ further found that Plaintiff’s treatment was generally “routine and
2 conservative” during the period at issue, as his treatment included only “oral
3 medications,” rather than “more aggressive treatment.” [AR 21-22.] The
4 conservative nature of a claimant’s treatment may factor into the evaluation of a
5 claimant’s subjective complaints. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir.
6 2007). Here, however, the record shows that Plaintiff regularly sought medical
7 treatment for pain throughout the relevant period and was consistently prescribed a
8 narcotic pain medication (Norco). [AR 267-73.] Other records also show that
9 Plaintiff received multiple steroid injections and trigger point injections, which
10 provided varying levels of pain relief. [AR 274, 283, 285, 287, 289, 293.] While
11 there is no indication Plaintiff received any steroid injections or trigger point
12 injections during the period at issue, Plaintiff’s treatment cannot properly be
13 characterized as “conservative,” within the meaning of Ninth Circuit jurisprudence.
14 See, e.g., Teresa M. W. v. Kijakazi, No. 5:21-CV-00564-JC, 2022 WL 3586208, at
15 *5 (C.D. Cal. Aug. 22, 2022) (“it is doubtful that plaintiff’s consistent treatment
16 with narcotic pain medications may properly be characterized as ‘conservative’”);
17 Aguilar v. Colvin, No. CV 13-08307-VBK, 2014 WL 3557308, at *8 (C.D. Cal. July
18 18, 2014) (“It would be difficult to fault Plaintiff for overly conservative treatment
19 when he has been prescribed strong narcotic pain medications.”); Christie v. Astrue,
20 No. CV 10-3448-PJW, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011)
21 (refusing to characterize as “conservative,” treatment that included narcotic pain
22 medication, steroid injections, trigger point injections, epidural shots, and traction).
23 The ALJ further noted that Plaintiff was treated with medications by “a nurse
24 practitioner” during “routine office visits” and was not referred to a specialist during
25 the relevant period. [AR 21-22.] The ALJ asserted that the absence of a specialist
26 suggests Plaintiff’s symptoms and limitations were not as severe as alleged. [AR
27 21.] However, the fact that Plaintiff received treatment from a nurse practitioner,
28 rather than a specialist, does not undermine Plaintiff’s subjective symptom
1 testimony. Because Plaintiff filed his application for DIB after March 27, 2017, the
2 new regulations for evaluating medical opinion evidence apply in this case. See
3 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL
4 168819, 82 Fed. Reg. 5844 (Jan. 18, 2017). Under the new regulations, a nurse
5 practitioner is considered an “acceptable medical source” and the previous hierarchy
6 in the evaluation of medical opinion evidence no longer applies. Woods v. Kijakazi,
7 32 F.4th 785, 787 (9th Cir. 2022); see also 20 C.F.R. § 404.1502(a)(7) (acceptable
8 medical sources include licensed advanced practice registered nurses). Thus, the
9 lack of a referral to a specialist was not a legitimate reason for rejecting Plaintiff’s
10 testimony.
11 Defendant asserts the ALJ found that “Plaintiff’s failure to seek other
12 treatment during the relevant period also undermined his symptom allegations.”
13 [Def. Br. at 8.] The ALJ, however, did not cite Plaintiff’s alleged failure to seek
14 treatment as a reason for discounting his testimony. See Orn, 495 F.3d at 630 (The
15 ALJ’s decision may not be affirmed “on a ground upon which he did not rely.”).
16 While Plaintiff’s alleged failure to seek additional treatment might be a valid reason
17 to discount his testimony, it is for the ALJ to make this determination in the context
18 of the complete record (including, for example, any additional evidence that
19 painkillers sufficiently controlled Plaintiff’s pain and also whether the side effects of
20 such medication interfered with Plaintiff’s ability to function).
21 Accordingly, the ALJ’s consideration of Plaintiff’s subjective symptom
22 testimony is not supported by substantial evidence.
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24 V. REMAND FOR FURTHER PROCEEDINGS
25 The Court has discretion to remand or reverse and award benefits. See
26 Trevizo, 871 F.3d at 682. It may be appropriate to direct an immediate award of
27 benefits when the record has been fully developed, no useful purpose would be
28 served by further proceedings, and the ALJ has failed to provide legally sufficient
1 reasons for rejecting evidence. Id. (citing Garrison v. Colvin, 759 F.3d 995, 1019
2 (9th Cir. 2014)). But when there are outstanding issues that must be resolved before
3 a determination can be made, and it is not clear from the record that the ALJ would
4 be required to find a claimant disabled if all the evidence were properly evaluated,
5 remand for further proceedings is appropriate. See Garrison, 759 F.3d at 1021;
6 Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir. 2000) (remand for further
7 proceedings rather than for the immediate payment of benefits is appropriate where
8 there are “sufficient unanswered questions in the record”).
9 In this case, there are outstanding issues that must be resolved before a proper
10 disability determination can be made. While the ALJ failed to adequately address
11 Plaintiff’s subjective symptom testimony, the ALJ made numerous, detailed
12 findings based on the objective medical evidence that raise questions about
13 Plaintiff’s level of functioning. See Treichler v. Comm’r of Soc. Sec. Admin., 775
14 F.3d 1090, 1104 (9th Cir. 2014) (finding that the record was “uncertain and
15 ambiguous” and remand was warranted where there were “significant factual
16 conflicts in the record between [the plaintiff’s] testimony and objective medical
17 evidence”). Therefore, the Court remands this case for further proceedings. See
18 Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017) (“A district court cannot
19 proceed directly to credit a claimant’s testimony as true and then look to the record
20 to determine whether there are any issues outstanding, as ‘this reverses the required
21 order of analysis.’”) (quoting Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir.
22 2015)); see also Treichler, 775 F.3d at 1106 (“[A] reviewing court is not required to
23 credit claimants’ allegations regarding the extent of their impairments as true merely
24 because the ALJ made a legal error in discrediting their testimony.”).
25 / / /
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28 / / /
1 VI. CONCLUSION
2 For all of the foregoing reasons, IT IS ORDERED that:
3 (1) the decision of the Commissioner is REVERSED and this matter is
4 |} REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further
5 || administrative proceedings consistent with this Memorandum Opinion and Order;
6 || and
7 (2) Judgment be entered in favor of Plaintiff.
8 IT IS ORDERED.
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10 || DATED: September 18, 2023
D GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE
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