# Letty Solorio v. Martin O'Malley

> District Court, C.D. California · March 19, 2024

URL: https://www.frixlaw.com/law-library/cases/9986187

## Case

- **Court:** District Court, C.D. California
- **Decided:** March 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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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.

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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.
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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
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Administration and Case Management of the United States Judicial Conference.
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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).
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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:
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(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
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existing medical evidence; and
20 (2) Further evaluate Plaintiff’s mental impairments in accordance
with 20 CFR 404.1520a by providing specific findings and
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rationale for each of the Paragraph B functional areas.
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[Id.]
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On February 22, 2021, the ALJ conducted a second hearing on
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Plaintiff’s applications by telephone due to the COVID-19 pandemic. [AR 49-
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3 The Administrative Record is CM/ECF Docket Numbers 16-1 through 16-36 and
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the Joint Stipulation is Docket Number 21.
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1 100.] Plaintiff appeared with counsel, and the ALJ heard testimony from
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Plaintiff, two medical experts, and a VE. [Id.] On March 4, 2021, the ALJ
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issued a decision finding that Plaintiff was not disabled under the SSA from
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June 1, 2014, the alleged onset date, through the date of the decision. [(“the
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2021 Decision”) AR 25-40.] On March 24, 2022, the Appeals Council denied
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Plaintiff’s request for review, rendering the 2021 Decision the final decision of
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the Commissioner. [AR 1-8.]
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The ALJ followed the five-step sequential evaluation process to assess
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whether Plaintiff was disabled under the Social Security Act. Lester v.
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Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), superseded on other grounds by
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regulation as stated by Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022);
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20 C.F.R. §§ 404.1520(a), 416.920(a). At step one, the ALJ found that Plaintiff
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had not engaged in substantial gainful activity since June 1, 2014, the alleged
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onset date. [AR 28 ¶ 2.] At step two, the ALJ found that Plaintiff had the
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following severe impairments: “cervical and lumbar spine degenerative disc
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disease, status post-left shoulder humerus fracture, status post-left wrist open
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reduction and internal fixation surgery, and diabetes mellitus.” [AR 29 ¶ 3.]
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The ALJ found that these impairments significantly limit Plaintiff’s ability to
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perform basic work activities. [AR 29.]
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At step three, the ALJ found that Plaintiff “does not have an
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impairment or combination of impairments that meets or medically equals the
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severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
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Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925,
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and 416.926).” [AR 35 ¶ 4.]
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Before proceeding to step four, the ALJ determined that Plaintiff has
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the Residual Functional Capacity (“RFC”) to perform light work as defined in
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1 the regulations with the following limitations:
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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
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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
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controls, occasional postural movements, and no working around
7 hazards or moving machinery.

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[AR 35 ¶ 5.]
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At step four, the ALJ found that Plaintiff is capable of performing her
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past relevant work as an estimator, and that such work does not require the
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performance of work-related activities that would be precluded by her RFC.
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[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.]
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II. Standard of Review
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Under 42 U.S.C. § 405(g), a district court may review the agency’s
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decision to deny benefits. A court will vacate the agency’s decision “only if the
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1 ALJ’s decision was not supported by substantial evidence in the record as a
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whole or if the ALJ applied the wrong legal standard.” Coleman v. Saul, 979
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F.3d 751, 755 (9th Cir. 2020) (citations omitted). “Substantial evidence means
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more than a mere scintilla but less than a preponderance; it is such relevant
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evidence as a reasonable person might accept as adequate to support a
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conclusion.” Id.; Biestek v. Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154
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(2019) (same).
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It is the ALJ’s responsibility to resolve conflicts in the medical evidence
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and ambiguities in the record. Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir.
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2020). Where this evidence is “susceptible to more than one rational
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interpretation” the ALJ’s reasonable evaluation of the proof should be upheld.
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Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Tran v.
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Saul, 804 F. App’x 676, 678 (9th Cir. 2020).4
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Error in Social Security determinations is subject to harmless error
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analysis. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Error is
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harmless if “it is inconsequential to the ultimate nondisability determination”
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or, despite the legal error, “the agency’s path is reasonably discerned.”
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Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014).
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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
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basis for a legal ruling by a district court”).
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1 III. Discussion
2 A. The ALJ Erred in Evaluating Plaintiff’s Subjective
Symptom Testimony
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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
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testimony. Ferguson v. O’Malley, __ F.4th __, 2024 WL 1103364, at * 4 (9th
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Cir. Mar. 14, 2024) (emphasis in original).
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An ALJ may consider a claimant’s conservative treatment when
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evaluating credibility, particularly when the claimant “responded favorably”
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to minimal treatment. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
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2008); Burkett v. Berryhill, 732 F. App’x 547, 552 (9th Cir. 2018) (same).
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Proof of “conservative treatment is sufficient to discount a claimant’s
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testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d
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742, 751 (9th Cir. 2007); Mojarro v. Berryhill, 746 F. App’x 672 (9th Cir. 2018)
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(same). An ALJ may also rely on an “unexplained or inadequately explained
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failure to seek treatment or to follow a prescribed course of treatment,” and
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the claimant’s daily activities. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th
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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).
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2. Analysis
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Plaintiff argues that the ALJ failed to provide clear and convincing
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reasons to discount her subjective symptom testimony, specifically with
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respect to her complaints regarding headaches and migraines. [JS 12-18.]
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As pertinent to the disputed issue, Plaintiff testified at the 2018 hearing
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that she suffered from migraine pain ever since she was a teenager. [AR 115-
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116.] Plaintiff stated that she has tried many different medications over the
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years. [AR 116.] Plaintiff stated that she gets dizzy from her migraines. [Id.]
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She further testified that when she was still working, she would get around 5
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migraines a month, and each migraine would last four hours. [Id.] Plaintiff
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stated that she would manage her headaches by taking medication and then
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laying down until she felt better. [AR 117.] Plaintiff testified that the
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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.]
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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
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testimony, focusing on Plaintiff’s testimony regarding her physical
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impairments. [AR 36.] The ALJ also pointed to Plaintiff’s 2016 function
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report, noting that she “reported living alone and suffering from problems
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with anxiety, headaches, pain, low energy and forgetfulness.” [AR 37.] The
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ALJ further highlighted that Plaintiff “denied any problems caring for her
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personal needs, preparing simple meals, driving, shopping, handling her
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finances, and performing light household chores.” [Id.] The ALJ did not
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address Plaintiff’s 2019 function report, where Plaintiff also reported issues
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with anxiety, depression, and migraines. [See AR 651-660.] Plaintiff reported
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that her symptoms associated with these impairments prevent her from
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leaving the house most days. [AR 662.] Plaintiff further stated that the
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worrying, anxiety, and migraines affect her sleep. [AR 663.] Plaintiff also
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checked off that she had issues with her memory, concentration, and getting
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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
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repeated that at step two of the symptom analysis, “the ALJ cannot rely on an
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absence of positive medical evidence to discredit a claimant’s subjective
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symptom testimony.” Id (citing Smartt, 53 F.4th at 498) (emphasis in
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original). Accordingly, the Ninth Circuit concluded that the ALJ was required
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to expressly state what evidence was inconsistent with the plaintiff’s
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headache symptom testimony. Id. Similarly, the Ninth Circuit found that the
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ALJ also erred in not expressly explaining how, in his view, the plaintiff’s
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testimony about his daily activities was inconsistent with his testimony about
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the severity and frequency of his headaches. Id. at 7.
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Notably, like in Ferguson, in this case the ALJ did not address either
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Plaintiff’s 2018 testimony or the 2016 or 2019 function reports regarding her
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complaints of symptoms associated with her headaches and migraines. While
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lack of objective medical evidence and daily activities are both valid reasons to
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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
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with her mental impairments. As such, the ALJ’s error was not
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“inconsequential to the ultimate nondisability determination.” Treichler, 775
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F.3d at 1099.
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19 B. Other Issues and Remedy
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Plaintiff contends that the ALJ’s decision is also erroneous because the
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ALJ failed to properly consider the medical evidence at step two and erred in
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rendering Plaintiff’s RFC. [JS at 3-12.] Because the Court concludes that this
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case be remanded on an open record, the Court declines to address Plaintiff’s
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other claims of error. Google LLC v. Oracle America, Inc., ___ U.S. ___, 141 S.
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Ct. 1183, 1197 (2021) (appellate courts “should not answer more than is
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necessary to resolve the parties’ dispute” on appeal); see also Smith v.
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Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) (“While Smith raises a number
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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.
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Dated: March 19, 2024
12 :
3 A abicia Menakue_
14 PATRICIA DONAHUE
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9986187. Public record. Not legal advice.