Letty Solorio v. Martin O'Malley

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10

11 Case No. 2:22-cv-03443-PD

LETTY S.,1

12 Plaintiff,

MEMORANDUM OPINION

13 v.

AND ORDER VACATING

14 AGENCY DECISION

MARTIN O’MALLEY,2

15 COMMISSIONER OF SOCIAL SECURITY,

16 Defendant.

17

18 Plaintiff challenges the denial of her application for Disability

19 Insurance Benefits. For the reasons stated below, the decision of the

20 Administrative Law Judge is reversed and the Court remands this matter on

an open record for further proceedings.

21

22

23

24 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil

Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court

25

Administration and Case Management of the United States Judicial Conference.

26

2 Martin O’Malley became the Commissioner of Social Security on December 20, 2023.

27 Pursuant to Fed. R. Civ. P. 25(d), Martin O’Malley is substituted for Kilolo Kijakazi

as the defendant in this action. See 42 U.S.C. § 405(g).

28

1 I. Pertinent Procedural History and Disputed Issue

2 On December 22, 2015, Plaintiff filed an application for Disability

3 Insurance Benefits, and on May 22, 2019, Plaintiff filed an application for

4 Supplemental Security Income. [Administrative Record (“AR”) 25.]3 In both

5 applications, Plaintiff alleges that she became disabled and unable to work

6 since June 1, 2014. [Id.] Plaintiff’s application was denied initially on June 8,

7 2016, and upon reconsideration on September 8, 2016. [AR 222, 227.]

8 Plaintiff requested a hearing, which was held before an Administrative Law

9 Judge (“ALJ”) on September 10, 2018. [AR 101-125.] Plaintiff appeared with

10 counsel, and the ALJ heard testimony from Plaintiff, a medical expert, and a

11 vocational expert (“VE”). [Id.] On October 25, 2018, the ALJ issued a decision

12 finding that Plaintiff was not disabled under the Social Security Act (“SSA”).

13 [(“the 2018 Decision”) AR 153-170.]

14 Plaintiff appealed the 2018 Decision to the Appeals Council, which

15 vacated the 2018 Decision and remanded to the agency for another hearing.

16 [AR 171-176.] In its remand order, the Appeals Council ordered the ALJ to:

17

(1) Obtain additional evidence concerning Plaintiff’s impairments

18 in order to complete the administrative record in accordance with

regulatory standards regarding consultative examinations and

19

existing medical evidence; and

20 (2) Further evaluate Plaintiff’s mental impairments in accordance

with 20 CFR 404.1520a by providing specific findings and

21

rationale for each of the Paragraph B functional areas.

22

[Id.]

23

On February 22, 2021, the ALJ conducted a second hearing on

24

Plaintiff’s applications by telephone due to the COVID-19 pandemic. [AR 49-

25

26

3 The Administrative Record is CM/ECF Docket Numbers 16-1 through 16-36 and

27

the Joint Stipulation is Docket Number 21.

28

1 100.] Plaintiff appeared with counsel, and the ALJ heard testimony from

2

Plaintiff, two medical experts, and a VE. [Id.] On March 4, 2021, the ALJ

3

issued a decision finding that Plaintiff was not disabled under the SSA from

4

June 1, 2014, the alleged onset date, through the date of the decision. [(“the

5

2021 Decision”) AR 25-40.] On March 24, 2022, the Appeals Council denied

6

Plaintiff’s request for review, rendering the 2021 Decision the final decision of

7

the Commissioner. [AR 1-8.]

8

The ALJ followed the five-step sequential evaluation process to assess

9

whether Plaintiff was disabled under the Social Security Act. Lester v.

10

Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), superseded on other grounds by

11

regulation as stated by Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022);

12

20 C.F.R. §§ 404.1520(a), 416.920(a). At step one, the ALJ found that Plaintiff

13

had not engaged in substantial gainful activity since June 1, 2014, the alleged

14

onset date. [AR 28 ¶ 2.] At step two, the ALJ found that Plaintiff had the

15

following severe impairments: “cervical and lumbar spine degenerative disc

16

disease, status post-left shoulder humerus fracture, status post-left wrist open

17

reduction and internal fixation surgery, and diabetes mellitus.” [AR 29 ¶ 3.]

18

The ALJ found that these impairments significantly limit Plaintiff’s ability to

19

perform basic work activities. [AR 29.]

20

At step three, the ALJ found that Plaintiff “does not have an

21

impairment or combination of impairments that meets or medically equals the

22

severity of one of the listed impairments in 20 CFR Part 404, Subpart P,

23

Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,

24

and 416.926).” [AR 35 ¶ 4.]

25

Before proceeding to step four, the ALJ determined that Plaintiff has

26

the Residual Functional Capacity (“RFC”) to perform light work as defined in

27

28

1 the regulations with the following limitations:

2

3 …involving sitting/ standing/ walking up to 6 hours total per 8-hour

workday (with performance of each activity up to 1 hour at a time), no

4

limits on her dominant right upper extremity, no overhead reaching

5 with her left arm, occasional other left arm movements, frequent left

upper extremity handling/ fingering, occasional operation of foot

6

controls, occasional postural movements, and no working around

7 hazards or moving machinery.

8

[AR 35 ¶ 5.]

9

At step four, the ALJ found that Plaintiff is capable of performing her

10

past relevant work as an estimator, and that such work does not require the

11

performance of work-related activities that would be precluded by her RFC.

12

[AR 39 ¶ 6.] The ALJ found that, based on Plaintiff’s age, education, work

13 experience, and RFC, Plaintiff could perform the occupation of estimator as

14 generally performed per the Dictionary of Occupational Titles (“DOT”) and as

15 she actually performed it. [AR 39.] Accordingly, the ALJ concluded that

16 Plaintiff did not meet the definition of disability, as defined by the SSA, from

17 the alleged onset date through the date of the decision. [AR 40 ¶ 7.]

18 Plaintiff challenges the ALJ’s decision on three grounds:

19 1) Whether the ALJ properly considered the medical evidence at

20 step two;

21 2) Whether the ALJ properly rendered Plaintiff’s RFC; and

22 3) Whether the ALJ properly considered Plaintiff’s subjective

23 symptom testimony.

24 [JS at 3.]

25

II. Standard of Review

26

Under 42 U.S.C. § 405(g), a district court may review the agency’s

27

decision to deny benefits. A court will vacate the agency’s decision “only if the

28

1 ALJ’s decision was not supported by substantial evidence in the record as a

2

whole or if the ALJ applied the wrong legal standard.” Coleman v. Saul, 979

3

F.3d 751, 755 (9th Cir. 2020) (citations omitted). “Substantial evidence means

4

more than a mere scintilla but less than a preponderance; it is such relevant

5

evidence as a reasonable person might accept as adequate to support a

6

conclusion.” Id.; Biestek v. Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154

7

(2019) (same).

8

It is the ALJ’s responsibility to resolve conflicts in the medical evidence

9

and ambiguities in the record. Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir.

10

2020). Where this evidence is “susceptible to more than one rational

11

interpretation” the ALJ’s reasonable evaluation of the proof should be upheld.

12

Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Tran v.

13

Saul, 804 F. App’x 676, 678 (9th Cir. 2020).4

14

Error in Social Security determinations is subject to harmless error

15

analysis. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Error is

16

harmless if “it is inconsequential to the ultimate nondisability determination”

17

or, despite the legal error, “the agency’s path is reasonably discerned.”

18

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014).

19

20

21

22

23

24

4 Although statements in unpublished Ninth Circuit opinions “may prove useful [] as

25 examples of the applications of settled legal principles,” the Ninth Circuit has

cautioned lower courts not to rely heavily on such memorandum dispositions

26 particularly as to issues of law. Grimm v. City of Portland, 971 F.3d 1060, 1067 (9th

Cir. 2020) (“a nonprecedential disposition is not appropriately used ... as the pivotal

27

basis for a legal ruling by a district court”).

28

1 III. Discussion

2 A. The ALJ Erred in Evaluating Plaintiff’s Subjective

Symptom Testimony

3

4 1. Relevant Law

5 In the absence of proof of malingering, an ALJ may reject a litigant’s

6 believability by identifying “specific, clear, and convincing” reasons supported

7 by substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir.

8 2017). This requires the ALJ to “specifically identify the testimony [from a

9 claimant] she or he finds not to be credible and ... explain what evidence

10 undermines that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir.

11 2020) (quoting Treichler, 775 F.3d at 1102); Brown-Hunter v. Colvin, 806 F.3d

12 487, 493 (9th Cir. 2015); see also Smartt v. Kijakazi, 53 F. 4th 489, (9th Cir.

13 2022) (“Ultimately, the ‘clear and convincing’ standard requires an ALJ to

14 show [their] work[.]”). Thus, to satisfy the substantial evidence standard, the

15 ALJ must provide specific, clear, and convincing reasons which explain why

the medical evidence is inconsistent with the claimant’s subjective symptom

16

testimony. Ferguson v. O’Malley, __ F.4th __, 2024 WL 1103364, at * 4 (9th

17

Cir. Mar. 14, 2024) (emphasis in original).

18

An ALJ may consider a claimant’s conservative treatment when

19

evaluating credibility, particularly when the claimant “responded favorably”

20

to minimal treatment. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.

21

2008); Burkett v. Berryhill, 732 F. App’x 547, 552 (9th Cir. 2018) (same).

22

Proof of “conservative treatment is sufficient to discount a claimant’s

23

testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d

24

742, 751 (9th Cir. 2007); Mojarro v. Berryhill, 746 F. App’x 672 (9th Cir. 2018)

25

(same). An ALJ may also rely on an “unexplained or inadequately explained

26

failure to seek treatment or to follow a prescribed course of treatment,” and

27

the claimant’s daily activities. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th

28

1 Cir. 2014); Loader v. Berryhill, 722 F. App’x 653, 655 (9th Cir. 2018) (same).

2 An ALJ can consider whether there is a lack of objective medical

3 evidence supporting a claimant’s allegations. However, this factor “cannot

4 form the sole basis” for discounting subjective symptom testimony. Burch,

5 400 F.3d at 681; Davis v. Berryhill, 736 F. App’x 662, 665 (9th Cir. 2018).

6 Even if an ALJ impermissibly relies “on one of several reasons in

7 support of an adverse credibility determination,” the error is harmless if “the

8 ALJ’s remaining reasoning and ultimate credibility determination were

9 adequately supported by substantial evidence in the record.” Carmickle v.

10 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citation

11 omitted).

12

2. Analysis

13

Plaintiff argues that the ALJ failed to provide clear and convincing

14

reasons to discount her subjective symptom testimony, specifically with

15

respect to her complaints regarding headaches and migraines. [JS 12-18.]

16

As pertinent to the disputed issue, Plaintiff testified at the 2018 hearing

17

that she suffered from migraine pain ever since she was a teenager. [AR 115-

18

116.] Plaintiff stated that she has tried many different medications over the

19

years. [AR 116.] Plaintiff stated that she gets dizzy from her migraines. [Id.]

20

She further testified that when she was still working, she would get around 5

21

migraines a month, and each migraine would last four hours. [Id.] Plaintiff

22

stated that she would manage her headaches by taking medication and then

23

laying down until she felt better. [AR 117.] Plaintiff testified that the

24

frequency of her migraines increased a year after she was laid off. [Id.] At

25 the time of the 2018 hearing, Plaintiff testified that she had not yet tried

26 Botox to manage her symptoms. [AR 117-118.]

27

28

1 At the 2021 hearing, the ALJ did not ask Plaintiff any questions

2 regarding her chronic migraines. [See AR 49-100.] The ALJ heard expert

3 testimony from an orthopedist and a psychiatrist, but neither doctor would

4 opine on Plaintiff’s headaches because both stated it was not their area of

5 expertise. [See AR 59-88.] A neurologist did not testify and Plaintiff did not

6 have a consultative examination with a neurologist. [AR 87.]

7 With respect to Plaintiff’s mental impairments, the ALJ found that

8 Plaintiff has slight impairments related to migraines, depression, and

9 anxiety, but did not have any severe mental impairments. [AR 35.] The ALJ

10 found that while Plaintiff’s medically determinable impairments could

11 reasonably have been expected to cause her alleged symptoms, her statements

12 “concerning the intensity, persistence, and limiting effects of these symptoms

13 are not entirely consistent with the medical evidence and other evidence in

14 the record for the reasons explained in [the] decision.” [AR 36-37.]

In the 2021 Decision, the ALJ summarized the 2018 and 2021 hearing

15

testimony, focusing on Plaintiff’s testimony regarding her physical

16

impairments. [AR 36.] The ALJ also pointed to Plaintiff’s 2016 function

17

report, noting that she “reported living alone and suffering from problems

18

with anxiety, headaches, pain, low energy and forgetfulness.” [AR 37.] The

19

ALJ further highlighted that Plaintiff “denied any problems caring for her

20

personal needs, preparing simple meals, driving, shopping, handling her

21

finances, and performing light household chores.” [Id.] The ALJ did not

22

address Plaintiff’s 2019 function report, where Plaintiff also reported issues

23

with anxiety, depression, and migraines. [See AR 651-660.] Plaintiff reported

24

that her symptoms associated with these impairments prevent her from

25

leaving the house most days. [AR 662.] Plaintiff further stated that the

26

worrying, anxiety, and migraines affect her sleep. [AR 663.] Plaintiff also

27

checked off that she had issues with her memory, concentration, and getting

28

1 along with others. [AR 667.]

2 The ALJ then proceeded to give two discernable reasons for discounting

3 Plaintiff’s subjective symptom testimony in general: lack of objective medical

4 evidence and Plaintiff’s reported daily activities. [AR 37-38.] In the Ninth

5 Circuit’s recent decision in Ferguson, it clarified that in order to satisfy the

6 substantial evidence standard, “the ALJ must provide specific, clear, and

7 convincing reasons which explain why the medical evidence is inconsistent

8 with the claimant’s subjective symptom testimony.” 2024 WL 1103364, at * 4

9 (emphasis in original). In that case, the Ninth Circuit similarly considered

10 whether the ALJ erred in rejecting the plaintiff’s testimony regarding the

11 severity of his headaches. Id. at *1. The Ninth Circuit emphasized that the

12 ALJ specifically mentioned the plaintiff’s headaches only once during the

13 ALJ’s symptom-testimony discussion and did not identify any evidence

14 indicating that the plaintiff could not experience severe and frequent

headaches in the absence of neurological defects. Id. at *4. The court

15

repeated that at step two of the symptom analysis, “the ALJ cannot rely on an

16

absence of positive medical evidence to discredit a claimant’s subjective

17

symptom testimony.” Id (citing Smartt, 53 F.4th at 498) (emphasis in

18

original). Accordingly, the Ninth Circuit concluded that the ALJ was required

19

to expressly state what evidence was inconsistent with the plaintiff’s

20

headache symptom testimony. Id. Similarly, the Ninth Circuit found that the

21

ALJ also erred in not expressly explaining how, in his view, the plaintiff’s

22

testimony about his daily activities was inconsistent with his testimony about

23

the severity and frequency of his headaches. Id. at 7.

24

Notably, like in Ferguson, in this case the ALJ did not address either

25

Plaintiff’s 2018 testimony or the 2016 or 2019 function reports regarding her

26

complaints of symptoms associated with her headaches and migraines. While

27

lack of objective medical evidence and daily activities are both valid reasons to

28

1 discount a plaintiff’s subjective complaints, the ALJ was required to explain

2 why Plaintiff’s headache testimony specifically was inconsistent with both the

3 objective medical evidence and Plaintiff’s reported activities. Ferguson, 2024

4 WL 1103364, at *4-7. As such, the ALJ failed to adequately show her work at

5 step two of the symptom testimony analysis. See Smartt, 53 F.4th at 499

6 (“The standard isn’t whether our court is convinced, but whether the ALJ’s

7 rationale is clear enough that it has the power to convince.”); see also

8 Treichler, 775 F.3d at 1102 (citing Holohan v. Massanari, 246 F.3d 1195, 1208

9 (9th Cir. 2001)) (explaining that an ALJ may not reject a claimant’s testimony

10 by relying on the “record in general.”).

11 In sum, the ALJ failed to provide specific, clear, and convincing reasons

12 for discounting Plaintiff’s subjective complaints regarding headaches and

13 migraines. The error was not harmless. If the ALJ had accepted Plaintiff's

14 testimony, it is possible that the ALJ either would have found that Plaintiff

was disabled, or rendered an RFC that accounted for the symptoms associated

15

with her mental impairments. As such, the ALJ’s error was not

16

“inconsequential to the ultimate nondisability determination.” Treichler, 775

17

F.3d at 1099.

18

19 B. Other Issues and Remedy

20

Plaintiff contends that the ALJ’s decision is also erroneous because the

21

ALJ failed to properly consider the medical evidence at step two and erred in

22

rendering Plaintiff’s RFC. [JS at 3-12.] Because the Court concludes that this

23

case be remanded on an open record, the Court declines to address Plaintiff’s

24

other claims of error. Google LLC v. Oracle America, Inc., ___ U.S. ___, 141 S.

25

Ct. 1183, 1197 (2021) (appellate courts “should not answer more than is

26

necessary to resolve the parties’ dispute” on appeal); see also Smith v.

27

Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) (“While Smith raises a number

28

of issues on appeal, the court addresses only those relevant to its decision to

remand the case to the agency.”); Lambert v. Saul, 980 F.3d 1266, 1278 (9th

Cir. 2020) (“We have no occasion to reach Lambert’s other assignments of

‘ error, as the record may change on remand.”).

IV. Order

7 For all the reasons stated above, the ALJ’s decision is vacated and the

g || case is remanded on an open record. A separate judgment will issue.

IT IS SO ORDERED.

10

Dated: March 19, 2024

12 :

3 A abicia Menakue_

14 PATRICIA DONAHUE

UNITED STATES MAGISTRATE JUDGE

16

17

18

19

20

21

22

23

24

25

26

27

28

11