Adam Lopez v. Kilolo Kijakazi

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 ADAM L., ) Case No. 5:22-cv-01557-SP

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12 Plaintiff, )

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13 v. ) MEMORANDUM OPINION AND

) ORDER

14 KILOLO KIJAKAZI, Acting )

Commissioner of Social Security )

15 Administration, )

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16 Defendant. )

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19 I.

20 INTRODUCTION

21 On September 2, 2022, plaintiff Adam L. filed a complaint against defendant, the

22 Commissioner of the Social Security Administration (“Commissioner”), seeking a review

23 of a denial of supplemental security income (“SSI”). The parties have fully briefed the

24 matter in dispute, and the court deems the matter suitable for adjudication without oral

25 argument.

26 Plaintiff presents one disputed issue for decision: whether the administrative law

27 judge (“ALJ”) properly considered plaintiff’s subjective testimony. Memorandum in

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1 Support of Plaintiff’s Complaint (“P. Mem.”) at 2-9; see Defendant’s Memorandum in

2 Support of Answer (“D. Mem.”) at 1-9.

3 Having carefully studied the parties’ memoranda, the Administrative Record

4 (“AR”), and the decision of the administrative law judge (“ALJ”), the court concludes

5 that, as detailed herein, the ALJ failed to properly consider plaintiff’s testimony with

6 respect to his walking difficulties. The court therefore remands this matter to the

7 Commissioner in accordance with the principles and instructions enunciated in this

8 Memorandum Opinion and Order.

9 II.

10 FACTUAL AND PROCEDURAL BACKGROUND

11 Plaintiff was 35 years on November 3, 2019, his alleged disability onset date. AR

12 at 65. Plaintiff obtained a GED and has past relevant work as an automobile detailer.

13 AR at 41, 57, 201.

14 On December 6, 2019, plaintiff filed an application for SSI due to nerve damage in

15 his back affecting his feet, a permanently broken right ring finger, degenerative arthritis

16 of the hands and knees, tendonitis of the left arm, depression with psychotic features,

17 anxiety, and high blood pressure. AR at 65. The application was denied initially and

18 upon reconsideration, after which plaintiff filed a request for a hearing. AR at 90-100,

19 106.

20 On May 24, 2021, plaintiff, represented by counsel, appeared and testified at a

21 hearing before the ALJ. AR at 34-64. The ALJ also heard testimony from David A.

22 Rinehart, a vocational expert. AR at 56-62. On July 7, 2021, the ALJ denied plaintiff’s

23 claim for benefits. AR 15-28.

24 Applying the well-known five-step sequential evaluation process, the ALJ found,

25 at step one, that plaintiff had not engaged in substantial gainful activity since December

26 6, 2019, the application date. AR at 17.

27 At step two, the ALJ found plaintiff suffered from the severe impairments of: mild

28 lumbar spondylosis; bilateral tibial neuropathy; Charcot-Marie-Tooth disease with motor

1 involvement; right ring finger proximal interphalangeal joint fracture with malunion; left

2 lateral epicondylitis; and hammertoes. AR at 17-18.

3 At step three, the ALJ found plaintiff’s impairments, whether individually or in

4 combination, did not meet or medically equal one of the listed impairments set forth in 20

5 C.F.R. part 404, Subpart P, Appendix 1. AR at 20.

6 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and

7 determined plaintiff had the RFC to perform a light work as defined in 20 C.F.R.

8 § 416.967(b) with the limitations that he: could stand and walk four hours in an eight-

9 hour workday; could occasionally climb ramps and stairs, stoop, kneel, crouch, or crawl;

10 could never push, pull, or operate foot controls with the bilateral lower extremities; could

11 frequently balance; could frequently finger with the right upper extremity and handle

12 with the left upper extremity; could not climb ladders, ropes, or scaffolds or work at

13 unprotected heights; and could not engage in occupational driving that requires foot

14 controls. Id.

15 The ALJ found, at step four, that plaintiff was unable to perform his past relevant

16 work as an automobile detailer. AR at 26.

17 At step five, the ALJ found there were jobs that existed in significant numbers in

18 the national economy that plaintiff could perform, including electronics worker, officer

19 helper, and small products assembler. AR at 27. Consequently, the ALJ concluded

20 plaintiff did not suffer from a disability as defined by the Social Security Act. AR at 28.

21 Plaintiff filed a timely request for review of the ALJ’s decision, which the Appeals

22 Council denied. AR at 1-3. The ALJ’s decision stands as the final decision of the

23 Commissioner.

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25 1 Residual functional capacity is what a claimant can do despite existing

exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 nn.5-

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7 (9th Cir. 1989) (citations omitted). “Between steps three and four of the five-step

27 evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the

claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th

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Cir. 2007) (citation omitted).

1 III.

2 STANDARD OF REVIEW

3 This court is empowered to review decisions by the Commissioner to deny

4 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security

5 Administration must be upheld if they are free of legal error and supported by substantial

6 evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But

7 if the court determines the ALJ’s findings are based on legal error or are not supported by

8 substantial evidence in the record, the court may reject the findings and set aside the

9 decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001);

10 Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).

11 “Substantial evidence is more than a mere scintilla, but less than a preponderance.”

12 Aukland, 257 F.3d at 1035. Substantial evidence is such “relevant evidence which a

13 reasonable person might accept as adequate to support a conclusion.” Reddick v. Chater,

14 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether

15 substantial evidence supports the ALJ’s finding, the reviewing court must review the

16 administrative record as a whole, “weighing both the evidence that supports and the

17 evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s

18 decision “‘cannot be affirmed simply by isolating a specific quantum of supporting

19 evidence.’” Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243

20 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the

21 ALJ’s decision, the reviewing court “‘may not substitute its judgment for that of the

22 ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).

23 IV.

24 DISCUSSION

25 Plaintiff contends the ALJ failed to properly consider his subjective testimony. P.

26 Mem. at 2-9. Specifically, plaintiff argues the ALJ failed to provide clear and convincing

27 reasons for discounting his testimony about his hands and failed to specifically address

28 his testimony concerning his walking, impaired concentration, and paranoia. Id. at 7-9.

1 The court looks to Social Security Ruling (“SSR”) 16-3p for guidance on

2 evaluating plaintiff’s alleged symptoms. 2 In adopting SSR 16-3p, the Social Security

3 Administration sought to “clarify that subjective symptom evaluation is not an

4 examination of an individual’s character.” SSR 16-3p, 2017 WL 5180304, at *2 (Oct.

5 25, 2017).

6 [SSR 16-3p] makes clear what our precedent already required: that

7 assessments of an individual’s testimony by an ALJ are designed to evaluate

8 the intensity and persistence of symptoms after the ALJ finds that the

9 individual has a medically determinable impairment(s) that could reasonably

10 be expected to produce those symptoms, and not to delve into wide-ranging

11 scrutiny of the claimant’s character and apparent truthfulness.

12 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (cleaned up).

13 To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step

14 analysis. Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) (citing Trevizo,

15 871 F.3d at 678). First, the ALJ must determine whether the claimant produced objective

16 medical evidence of an underlying impairment that could reasonably be expected to

17 produce the symptoms alleged. Id. Second, if plaintiff satisfies the first step, and there is

18 no evidence of malingering, the ALJ must evaluate the intensity and persistence of the

19 claimant’s symptoms and determine the extent to which they limit her ability to perform

20 work-related activities. Id.

21 In assessing intensity and persistence, the ALJ may consider: the claimant’s daily

22 activities; the location, duration, frequency, and intensity of the symptoms; precipitating

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24 2 “The Commissioner issues Social Security Rulings to clarify the Act’s

25 implementing regulations and the agency’s policies. SSRs are binding on all components

of the SSA. SSRs do not have the force of law. However, because they represent the

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Commissioner’s interpretation of the agency’s regulations, we give them some deference.

27 We will not defer to SSRs if they are inconsistent with the statute or regulations.”

Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (internal citations

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omitted).

1 and aggravating factors; the type, dosage, effectiveness, and side effects of medication

2 taken to alleviate the symptoms; other treatment received; other measures used to relieve

3 the symptoms; and other factors concerning the claimant’s functional limitations and

4 restrictions due to the symptoms. Id. (citing 20 C.F.R. § 416.929); SSR 16-3p at *4;

5 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). To reject the claimant’s subjective

6 symptom statements at step two, the ALJ must provide “specific, clear, and convincing”

7 reasons, supported by substantial evidence in the record, for doing so. Smolen, 80 F.3d at

8 1283-84.

9 At the first step, the ALJ here found plaintiff’s medically determinable

10 impairments could reasonably be expected to cause at least some of the symptoms

11 alleged. AR at 24. At the second step, because the ALJ did not find any evidence of

12 malingering, the ALJ was required to provide clear and convincing reasons for

13 discounting plaintiff’s testimony. The ALJ discounted plaintiff’s testimony because: (1)

14 his complaints of arthritis pain and functioning in his hands were inconsistent with the

15 frequency and extent of medical treatment; (2) plaintiff failed to follow the prescribed

16 treatment for his ring finger; (3) plaintiff’s mental symptoms were inconsistent with the

17 objective medical evidence; and (4) medication controlled plaintiff’s mental symptoms.

18 AR at 24-25.

19 In Function Reports dated February 15, 2020,3 plaintiff stated he could not stand

20 without pain, could not lift heavy objects, was unfocused, and had trouble with personal

21 care. AR at 211-12, 221-22. Plaintiff stated he could barely lift 50 pounds, could walk

22 50 yards before needing to rest, could pay attention for five to ten minutes, and was

23 always paranoid someone was watching him. AR at 216, 226-27. Regarding his

24 activities, plaintiff reported he watered plants, defrosted food, fed animals, performed

25 household chores, and did light yardwork for about four to five hours a day. AR at 212-

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3 The ALJ did not summarize plaintiff’s Function Reports in the decision.

1 13, 222-23. Plaintiff stated he could shop, engaged in “light” weightlifting, played the X-

2 box, and got along with everyone. AR at 214, 222, 224-25, 227.

3 At the hearing, plaintiff testified his “arthritis appeared” in 2018 and he finally saw

4 a rheumatologist in 2021 because it got worse. AR at 47-48. Plaintiff acknowledged the

5 rheumatologist had not yet diagnosed him with arthritis. AR at 49. Plaintiff testified that

6 he injured his ring finger in 2011 but did not seek treatment because he did not have

7 insurance. Id. When he sought treatment in 2016, the physician told him there was

8 nothing that could be done except for a fusion and he “wanted to deal with the pinky.”

9 AR at 50. Because his finger was already fused and the physician wanted “to deal with

10 the pinky,” plaintiff decided against the surgery. Id. With respect to his mental

11 symptoms, plaintiff testified he gets really exhausted due to his depression, it has been

12 like that since he was four or five years old, his mind is always wandering, he gets

13 paranoid that people are talking about him, and Cymbalta “helps somewhat.” AR at 50-

14 51, 55. Plaintiff testified he likes to work with a group. AR at 55. On a typical day,

15 Plaintiff engages in personal care, cooks on a hotplate, and watches DVDs. AR at 52-53.

16 Plaintiff also drives to the casino or gas station once or twice a week. AR at 40. Plaintiff

17 testified he can only walk a few feet before he needs to rest but does not use an assistive

18 device because it will hurt his hands. AR at 53. Regarding his feet, plaintiff has “always

19 been falling,” unbalanced, and uncoordinated. AR at 54. As for his wrists and hands,

20 plaintiff stated he drops things, including pans, and does not pick up anything heavy. AR

21 at 55.

22 A. The ALJ Provided Clear and Convincing Reasons for Discounting Plaintiff’s

23 Testimony Concerning His Hands and Mental Health

24 The ALJ’s first reason for discounting plaintiff’s testimony was his subjective

25 symptoms about his hand pain and functioning were inconsistent with the frequency and

26 extent of medical treatment. 4 AR at 24; see Pearson v. Kijakazi, 2022 WL 1125632, at

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28 4 At step two, the ALJ concluded plaintiff did not suffer the medically

determinable impairment of rheumatoid arthritis. AR at 19-20; see AR at 422.

1 *2 (9th Cir. Apr. 15, 2022) (the failure to seek treatment for an extended period is a clear

2 and convincing reasons for discounting symptom testimony); Tommasetti v. Astrue, 533

3 F.3d 1035, 1039 (9th Cir. 2008) (the unexplained failure to seek treatment is a basis for

4 discounting plaintiff’s symptoms). Specifically, the ALJ noted plaintiff complained his

5 worsening arthritic hand pain since 2018 had ultimately prevented him from working, but

6 plaintiff failed to seek treatment from a rheumatologist until January 2021. AR at 24; see

7 AR at 47-48, 422. Plaintiff did not explain why he did not seek treatment earlier.

8 Although plaintiff now asserts he did not seek treatment for his hands because he did not

9 have insurance, plaintiff was able to seek treatment for other symptoms and impairments

10 from the alleged November 2019 onset date through January 2021. See generally AR

11 291-405. The ALJ therefore reasonably determined that plaintiff’s treatment history was

12 inconsistent with the alleged debilitating pain.

13 The ALJ’s second reason for discounting plaintiff’s testimony was he failed to

14 follow the prescribed treatment for his right ring finger. AR at 24; see Tommasetti, 533

15 F.3d at 1039 (an ALJ may discount testimony for failure to follow a prescribed

16 treatment). Plaintiff testified that he did not seek treatment for his right ring finger when

17 he dislocated it in 2011 due to a lack of insurance. AR at 49; see Orn v. Astrue, 495 F.3d

18 625, 638 (9th Cir. 2007) (failure to seek treatment may be a basis to discount subjective

19 testimony unless there was a good reason for not doing so). When plaintiff finally sought

20 treatment for his finger in December 2016, the physician recommended a right ring finger

21 PIP joint fusion, but plaintiff never underwent the surgery.5 AR at 24; see AR at 407.

22 Plaintiff testified that the physician told him there was nothing that could be done except

23 for a fusion and his finger was already fused, and the physician wanted to treat his pinky.

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25 Nevertheless, the ALJ properly considered plaintiff’s complaints of hand pain in

assessing his RFC. See 20 C.F.R. § 416.945(a)(2).

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27 5 Plaintiff’s testimony implies he was unable to see a doctor regarding his ring

finger until December 2016. See AR at 49-50. But at the December 2016 visit, the

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examining physician stated plaintiff had tried conservative measures. See AR at 407.

1 AR at 50. But plaintiff’s explanation is inadequate because the record clearly reflects

2 that his finger was dislocated and not fused, and the physician recommended fusion

3 surgery in the right ring finger. AR at 407. Moreover, in discussing plaintiff’s testimony

4 regarding his finger, the ALJ also noted that plaintiff’s statements concerning the

5 physician’s recommendations were inconsistent with the record. AR at 24; see Smartt v.

6 Kijakazi, 53 F.4th 489, 495 (9th Cir. 2022) (ALJ properly discounted plaintiff’s pain

7 testimony by citing to inconsistencies with the record).

8 Third, the ALJ discounted the severity of plaintiff’s mental health statements

9 because they were inconsistent with the objective medical evidence.6 AR at 25; see

10 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (lack of corroborative objective

11 medical evidence may be one factor in evaluating testimony). The ALJ noted that

12 although plaintiff was diagnosed with major depressive disorder and he testified his

13 depression caused him to be exhausted, his mental status examination findings were

14 unremarkable, including normal mood, appropriate affect, normal concentration, intact

15 judgment, and intact thought process. AR at 19, 25; see AR at 301, 382, 434, 436, 437,

16 439, 440. The record supports the ALJ’s conclusion.

17 Finally, the ALJ rejected the severity of plaintiff’s mental health symptoms

18 because plaintiff reported doing well with the medication, Cymbalta. AR at 19, 25; see

19 Warre v. Comm’r of the Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)

20 (“Impairments that can be controlled effectively with medication are not disabling for

21 purposes of determining eligibility for SSI benefits.”). Again, the record supports the

22 ALJ’s finding that plaintiff’s mental health symptoms were controlled with medication.

23 Plaintiff consistently reported doing well on his medication and had unremarkable

24 objective findings during his mental status examinations. See AR 434, 436, 439, 440; see

25 also AR at 301, 382, 434, 436, 437, 439, 440.

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6 At step two, the ALJ found that plaintiff’s depression and anxiety did not

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cause more than minimal limitations and were therefore non-severe. AR at 19.

1 Thus, the ALJ cited clear and convincing reasons supported by substantial

2 evidence for rejecting plaintiff’s subjective testimony concerning his hands and mental

3 health.

4 B. The ALJ Failed to Consider Plaintiff’s Testimony Concerning His Walking

5 Limitations

6 Unlike plaintiff’s testimony concerning his hands and mental health, the ALJ did

7 not provide clear and convincing reasons for discounting plaintiff’s walking limitations.

8 Plaintiff testified he could only walk a few feet before needing to rest, but the ALJ

9 determined he had the RFC to stand and walk four hours in an eight-hour workday

10 without providing any reasons for rejecting his testimony. AR at 20, 53.

11 The ALJ must “specify which testimony she finds not credible, and then provide

12 clear and convincing reasons, supported by evidence in the record, to support that

13 credibility determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015)

14 (as amended). Contrary to defendant’s assertion, the ALJ only discussed plaintiff’s hands

15 and mental health testimony in her subjective symptom evaluation. Defendant argues the

16 ALJ determined plaintiff’s subjective complaints about walking difficulties were

17 inconsistent with the record, and cites to the portion of the decision in which the ALJ

18 noted that plaintiff testified he did not use an assistive device for walking and could only

19 walk a few feet before he needed to rest. D. Mem. at 6-7; see AR at 21. In fact, although

20 the ALJ acknowledged these statements in her summary of plaintiff’s testimony, the ALJ

21 never found these statements inconsistent with the record, nor did the ALJ state she found

22 inconsistencies between plaintiff’s alleged walking limitations and his failure to use an

23 assistive device. This makes sense since plaintiff explained he did not use an assistive

24 device because doing so hurts his hands. See AR at 53. And indeed, in setting forth why

25 she did not find the state agency physicians’ administrative findings fully persuasive, the

26 ALJ stated that plaintiff’s testimony about his difficulty walking without pain was “at

27 least somewhat consistent with his medical history.” AR at 26. Although the court must

28 look at the entire decision for the ALJ’s reasoning, here it would be a reach to conclude

1 the ALJ addressed and discounted plaintiff’s testimony regarding his walking.7 See

2 Kaufmann v. Kijakazi, 32 F.4th 843, 851 (9th Cir. 2022) (the court must look at the ALJ’s

3 explanation in “all of the pages” of the decision).

4 Accordingly, the ALJ provided clear and convincing reasons for discounting

5 plaintiff’s testimony concerning his hand pain and mental health symptoms, but failed to

6 state clear and convincing reasons for discounting plaintiff’s testimony concerning his

7 difficulty walking.

8 V.

9 REMAND IS APPROPRIATE

10 The decision whether to remand for further proceedings or reverse and award

11 benefits is within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599,

12 603 (9th Cir. 1989). Typically, in accordance with the “ordinary remand rule,” the

13 reviewing court will remand to the Commissioner for additional investigation or

14 explanation upon finding error by the ALJ. Treichler v. Comm’r, 775 F.3d 1090, 1099

15 (9th Cir. 2014). Nonetheless, it is appropriate for the court to exercise its discretion to

16 direct an immediate award of benefits where: “(1) the record has been fully developed

17 and further administrative proceedings would serve no useful purpose; (2) the ALJ has

18 failed to provide legally sufficient reasons for rejecting evidence, whether claimant

19 testimony or medical opinions; and (3) if the improperly discredited evidence were

20 credited as true, the ALJ would be required to find the claimant disabled on remand.”

21 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (setting forth three-part credit-as-

22 true standard for remanding with instructions to calculate and award benefits). But where

23 there are outstanding issues that must be resolved before a determination can be made, or

24 it is not clear from the record that the ALJ would be required to find a plaintiff disabled if

25 all the evidence were properly evaluated, remand for further proceedings is appropriate.

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27 7 In her summary of the medical evidence, the ALJ mentioned plaintiff’s

failure to complete physical therapy for his leg pain, but the ALJ does not cite it as a

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basis for discounting plaintiff’s walking difficulties. AR at 23.

1 || Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d

2 |{1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for further

3 || proceedings when, even though all conditions of the credit-as-true rule are satisfied, an

4 || evaluation of the record as a whole creates serious doubt that a claimant is, in fact,

5 ||disabled.” Garrison, 759 F.3d at 1021.

6 Here, there is an outstanding issue to be resolved and remand is required. On

7 |\|remand, the ALJ shall reconsider plaintiff's testimony regarding his difficulties with

8 || walking, and either credit his subjective complaints or provide clear and convincing

9 ||reasons for rejecting them. The ALJ shall then redetermine which impairments are

10 severe, reassess plaintiff's RFC, and proceed through steps four and five to determine

11 || what work, if any, plaintiff is capable of performing.

12 VI.

13 CONCLUSION

14 IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the

15 decision of the Commissioner denying benefits, and REMANDING the matter to the

16 ||Commissioner for further administrative action consistent with this decision.

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18 || Dated: September 25, 2023 Ce

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0 SHERI PYM

5 United States Magistrate Judge

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