Aguilera v. Commissioner of the Social Security

• Court: District Court, D. Nevada
• Decided: June 22, 2023
• Docket: 2:21-cv-01992
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 Kristina A.,1 Case No. 2:21-cv-01992-BNW

5 Plaintiff, ORDER re ECF Nos. 20 & 21 6 v.

7 Kilolo Kijakazi, Acting Commissioner of Social Security, 8 Defendant. 9

10 11 This case involves review of an administrative action by the Commissioner of Social 12 Security denying Plaintiff Kristina A.’s application for disability insurance benefits under Title II 13 of the Social Security Act. On November 1, 2021, the parties consented to the case being heard 14 by a magistrate judge in accordance with 28 U.S.C. § 636(c), and this matter was assigned to the 15 undersigned for an order under 28 U.S.C. § 636(c). See ECF No. 3. The Court reviewed 16 Plaintiff’s motion for reversal and/or remand (ECF No. 20), the Commissioner’s cross-motion to 17 affirm and response (ECF Nos. 21, 22), and Plaintiff’s reply (ECF No. 23). For the reasons 18 discussed below, the Court finds that the ALJ failed to support her decision to discredit Plaintiff’s 19 subjective symptom testimony with specific, clear, and convincing reasons and, as a result, it 20 remands for further proceedings. 21 // 22 // 23 // 24 // 25 // 26 // 27

1 1 I. Background 2 1. Procedural History 3 On July 5, 2018,2 Plaintiff applied for disability insurance benefits under Title II of the 4 Social Security Act, alleging an onset date of June 1, 2016. ECF No. 18-13 at 208–14. Plaintiff’s 5 claim was denied initially and on reconsideration. Id. at 124–28; 130–35. 6 A telephonic hearing was held before Administrative Law Judge (“ALJ”) Cynthia R. 7 Hoover on November 30, 2020. Id. at 59–88. On January 7, 2021, ALJ Hoover issued a decision 8 finding that Plaintiff was not disabled. Id. at 40–52. On September 23, 2021, the Appeals Council 9 denied review. Id. at 12–17. On November 1, 2021, Plaintiff commenced this action for judicial 10 review under 42 U.S.C. § 405(g). See IFP App. (ECF No. 1). 11 II. Discussion 12 1. Standard of Review 13 Administrative decisions in Social Security disability benefits cases are reviewed under 42 14 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section 405(g) 15 provides that “[a]ny individual, after any final decision of the Commissioner of Social Security 16 made after a hearing to which [s]he was a party, irrespective of the amount in controversy, may 17 obtain a review of such decision by a civil action . . . brought in the district court of the United 18 States for the judicial district in which the plaintiff resides.” The court may enter “upon the 19 pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the 20 decision of the Commissioner of Social Security, with or without remanding the cause for a 21 rehearing.” 42 U.S.C. § 405(g). 22 The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 23 See id.; Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). However, the Commissioner’s 24 findings may be set aside if they are based on legal error or not supported by substantial evidence. 25 See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); Thomas v. Barnhart, 26 2 The Administrative Law Judge’s decision identifies July 3, 2018 as date that Plaintiff applied for disability 27 insurance benefits. ECF No. 18-1 at 43. 3 ECF No. 18 refers to the Administrative Record in this matter which, due to COVID-19, was electronically filed. 1 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines substantial evidence as “more than a 2 mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind 3 might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 4 Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). In determining 5 whether the Commissioner’s findings are supported by substantial evidence, the court “must 6 review the administrative record as a whole, weighing both the evidence that supports and the 7 evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 8 720 (9th Cir. 1998); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 9 Under the substantial evidence test, findings must be upheld if supported by inferences 10 reasonably drawn from the record. Batson v. Commissioner, 359 F.3d 1190, 1193 (9th Cir. 2004). 11 When the evidence will support more than one rational interpretation, the court must defer to the 12 Commissioner’s interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Flaten 13 v. Sec’y of Health and Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). Consequently, the issue 14 before the court is not whether the Commissioner could reasonably have reached a different 15 conclusion, but whether the final decision is supported by substantial evidence. It is incumbent on 16 the ALJ to make specific findings so that the court does not speculate as to the basis of the 17 findings when determining if the Commissioner’s decision is supported by substantial evidence. 18 Mere cursory findings of fact without explicit statements as to what portions of the evidence were 19 accepted or rejected are not sufficient. Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981). 20 The ALJ’s findings “should be as comprehensive and analytical as feasible, and where 21 appropriate, should include a statement of subordinate factual foundations on which the ultimate 22 factual conclusions are based.” Id. 23 2. Disability Evaluation Process and the ALJ Decision 24 The individual seeking disability benefits has the initial burden of proving disability. 25 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, the individual must 26 demonstrate the “inability to engage in any substantial gainful activity by reason of any medically 27 determinable physical or mental impairment which can be expected . . . to last for a continuous 1 period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). Moreover, the individual must 2 provide “specific medical evidence” in support of her claim for disability. 20 C.F.R. 3 § 404.1514. If the individual establishes an inability to perform her prior work, then the burden 4 shifts to the Commissioner to show that the individual can perform other substantial gainful work 5 that exists in the national economy. Reddick, 157 F.3d at 721. 6 The ALJ follows a five-step sequential evaluation process in determining whether an 7 individual is disabled. See 20 C.F.R. § 404.1520(a); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). 8 If at any step the ALJ determines that she can make a finding of disability or non-disability, a 9 determination will be made, and no further evaluation is required. See 20 C.F.R. 10 § 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). 11 Step one requires the ALJ to determine whether the individual is engaged in substantial 12 gainful activity (“SGA”). 20 C.F.R. § 404.1520(a)(4)(i). If the individual is engaged in SGA, then 13 a finding of not disabled is made. If the individual is not engaged in SGA, then the analysis 14 proceeds to step two. 15 Step two addresses whether the individual has a medically determinable impairment that 16 is severe or a combination of impairments that significantly limits her from performing basic 17 work activities. Id. § 404.1520(a)(4)(ii). If the individual does not have a severe medically 18 determinable impairment or combination of impairments, then a finding of not disabled is made. 19 If the individual has a severe medically determinable impairment or combination of impairments, 20 then the analysis proceeds to step three. 21 Step three requires the ALJ to determine whether the individual’s impairments or 22 combination of impairments meets or medically equals the criteria of an impairment listed in 20 23 C.F.R. Part 404, Subpart P, Appendix 1. Id. § 404.1520(a)(4)(iii). If the individual’s impairment 24 or combination of impairments meets or equals the criteria of a listing and the duration 25 requirement, then a finding of disabled is made. Id. § 404.1520(d). Otherwise, the analysis 26 proceeds to step four. 27 However, before moving to step four, the ALJ must first determine the individual’s 1 individual’s ability to do physical and mental work-related activities on a sustained basis despite 2 limitations from impairments. See 20 C.F.R. § 404.1560; see also SSR 96-8p. In making this 3 finding, the ALJ must consider all the relevant evidence, such as all symptoms and the extent to 4 which the symptoms can reasonably be accepted as consistent with the objective medical 5 evidence and other evidence. 20 C.F.R. § 404.1545. To the extent that statements about the 6 intensity, persistence, or functionally limiting effects of pain or other symptoms are not 7 substantiated by objective medical evidence, the ALJ must make a finding on the credibility of 8 the individual’s statements based on a consideration of the entire case record. 9 Step four requires the ALJ to determine whether the individual has the RFC to perform 10 her past relevant work (“PRW”). 20 C.F.R. § 404.1520(a)(4)(iv). PRW means work performed 11 either as the individual actually performed it or as it is generally performed in the national 12 economy within the last 15 years. In addition, the work must have lasted long enough for the 13 individual to learn the job and performed a SGA. If the individual has the RFC to perform her 14 past work, then a finding of not disabled is made. If the individual is unable to perform any PRW 15 or does not have any PRW, then the analysis proceeds to step five. 16 The fifth and final step requires the ALJ to determine whether the individual can do any 17 other work considering her RFC, age, education, and work experience. 20 C.F.R. 18 § 404.1520(a)(4)(v). If she can do other work, then a finding of not disabled is made. Although 19 the individual generally continues to have the burden of proving disability at this step, a limited 20 burden of going forward with the evidence shifts to the Commissioner. The Commissioner is 21 responsible for providing evidence demonstrating that other work exists in significant numbers in 22 the economy that the individual can do. Yuckert, 482 U.S. at 141–42. 23 Here, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. 24 § 404.1520(a). ECF No. 18-1 at 45–52. 25 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity 26 since June 1, 2016, the alleged onset date. Id. at 45. 27 1 At step two, the ALJ concluded that Plaintiff had the following severe impairments: 2 degenerative disc disease in the lumbar and cervical spine; hearing loss; obesity; and vertigo. Id. 3 at 46. 4 At step three, the ALJ found that Plaintiff did not have an impairment or combination of 5 impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, 6 Appendix 1. Id. at 47. 7 Before moving to step four, the ALJ concluded that Plaintiff had the RFC to perform less 8 than “light work” with the following limitations: She can lift and carry 20 pounds occasionally 9 and 10 pounds frequently; stand and/or walk for 6 hours in an 8-hour workday; sit for 6 hours in 10 an 8-hour workday; occasionally climb ramps and stairs; occasionally crawl; and frequently 11 balance, stoop, kneel, or crouch. Id. at 47–50. The ALJ also limited Plaintiff to never climbing 12 ladders, ropes, or scaffolds and avoiding concentrated exposure to heat, loud noise, vibration, and 13 hazards such as dangerous moving machinery and unprotected heights. Id. Finally, the ALJ found 14 that Plaintiff should work in an environment with moderate noise only. Id. 15 At step four, the ALJ found that Plaintiff can perform past relevant work as a cashier’s 16 supervisor.4 Id. at 50. The ALJ then concluded that Plaintiff was not under a disability at any time 17 since June 1, 2016. Id. at 52. 18 3. Analysis 19 A. Whether the ALJ provided specific, clear, and convincing reasons to discount Plaintiff’s pain and symptom testimony 20 21 The parties dispute whether the ALJ provided specific, clear, and convincing reasons in 22 discounting Plaintiff’s subjective symptom testimony. Compare ECF No. 20 at 9–12 with ECF 23 No. 21 at 12–19. 24 In determining whether a claimant’s testimony regarding subjective pain or symptoms is 25 credible, the ALJ engages in a two-step analysis. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 26 2014). “First, the ALJ must determine whether the claimant has presented objective medical 27

4 1 evidence of an underlying impairment which could reasonably be expected to produce the pain or 2 other symptoms alleged.” Id. (citation and quotation omitted). “The claimant is not required to 3 show that her impairment ‘could reasonably be expected to cause the severity of the symptom she 4 has alleged; she need only show that it could reasonably have caused some degree of the 5 symptom.’” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (quoting Lingenfelter v. Astrue, 6 504 F.3d 1028, 1035-36 (9th Cir. 2007)). If the claimant satisfies the first step of the analysis, and 7 there is no evidence of malingering, the ALJ can reject the claimant’s testimony about the 8 severity of their symptoms “only by offering specific, clear and convincing reasons for doing so.” 9 Id. (citation and quotation omitted). Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) 10 (citations omitted). General findings are insufficient; rather, the ALJ must identify what symptom 11 claims are being discounted and what evidence undermines these claims. Id. (quoting Lester v. 12 Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) 13 (requiring the ALJ to sufficiently explain why they discounted the claimant’s symptom claims). 14 “The clear and convincing [evidence] standard is the most demanding required in Social Security 15 cases.” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 16 924 (9th Cir. 2002)). That said, if the ALJ’s credibility finding is supported by substantial 17 evidence in the record, the Court may not engage in second-guessing. Thomas, 278 F.3d at 959. 18 Here, the ALJ found Plaintiff’s impairments could reasonably be expected to cause the 19 alleged symptoms. ECF No. 18-1 at 48. However, the ALJ found Plaintiff’s “statements 20 concerning the intensity, persistence and limiting effects of these symptoms are not entirely 21 consistent with the medical evidence and other evidence in the record for the reasons explained in 22 this decision.” Id. The ALJ cited to a few reasons, including Plaintiff’s activities of daily living 23 and inconsistencies with the objective medical record, to discount her symptom testimony. Id. 24 The Court will address each in turn. 25 1. Activities of daily living 26 The ALJ discounted Plaintiff’s pain and symptom testimony because of Plaintiff’s 27 activities of daily living: Furthermore, while she alleged disabling limitations, she also had the ability to care for 1 her daughter including cooking and driving (4E/02). She also took care of her pets, which 2 included grooming and walking them. She was capable of laundry, doing dishes and light cleaning as well as harder chores, though it took her longer to do them (Id. at 03). 3 ECF No. 18-1 at 48. 4 5 “Engaging in daily activities that are incompatible with the severity of symptoms alleged 6 can support an adverse credibility determination.” Ghanim, 763 F.3d at 1165 (citations omitted). 7 Here, however, the ALJ merely provided vague assertions that Plaintiff’s allegations were 8 inconsistent with her activities of daily living. For example, the ALJ failed to identify which of 9 Plaintiff’s activities of daily living conflicted with which aspects of her pain and symptom 10 testimony or how Plaintiff’s daily activities were inconsistent with her symptom testimony. See 11 id. at 1163 (internal quotation marks and citation omitted) (“General findings are insufficient; 12 rather, the ALJ must identify what testimony is not credible and what evidence undermines the 13 claimant’s complaints.”). 14 The Commissioner is correct in arguing that “an ALJ is not required ‘to perform a line- 15 by-line exegesis of the claimant’s testimony’ and ‘[t]he ALJ’s findings will be upheld ‘if 16 supported by inferences reasonably drawn from the record . . . .’” ECF No. 21 at 13 (emphasis in 17 original) (citations omitted). But, here, the Court cannot determine whether the ALJ’s findings 18 can be supported by inferences reasonably drawn from the record because, as noted above, the 19 ALJ failed to describe how or why Plaintiff’s modest daily activities undermined her subjective 20 complaints. See Thomas, 278 F.3d at 958 (“If the ALJ finds that the claimant’s testimony as to the 21 severity of her pain and impairments is unreliable, the ALJ must make a credibility determination 22 with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 23 discredit claimant’s testimony.”) (citation omitted). Put another way, the ALJ did not identify 24 what parts of Plaintiff’s testimony were not credible and why.5 Rather, she only generally implied 25

26 5 The Commissioner seeks to fill in the gaps and provide certain explanations (e.g., reasoning that Plaintiff’s ability to do chores like washing dishes is inconsistent with Plaintiff’s claim that “she cannot do repetitive work with her 27 hands and she would drop things.” ECF No. 21 at 15–16. However, the Commissioner is aware that the Court is bound to affirm an ALJ’s decision based only on a ground the ALJ invoked. See Connett v. Barnhart, 340 F.3d 871, 1 that Plaintiff’s alleged disabling limitations were inconsistent with her daily activities. See 2 Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (citation omitted). Notably, the ALJ also 3 failed to note that Plaintiff qualified her ability to perform daily activities, testifying, for example, 4 that while she can drive and has a driver’s license, her husband “mostly drives” her around 5 because of issues related to her hearing.6 ECF No. 18-1 at 67. 6 Activities of daily living “may also be grounds for an adverse credibility finding if a 7 claimant is able to spend a substantial part of h[er] day engaged in pursuits involving the 8 performance of physical functions that are transferable to a work setting.” Orn v. Astrue, 495 F.3d 9 625, 639 (9th Cir. 2007) (internal quotation marks and citation omitted). However, there is no 10 indication here that the limited activities Plaintiff engaged in comprised a “substantial” portion of 11 her day or were “transferrable” to a work environment. See Smolen v. Chater, 80 F.3d 1273, 1284 12 n.7 (9th Cir. 1996) (recognizing that “many home activities may not be easily transferrable to a 13 work environment”). This is because the ALJ failed to draw a connection between Plaintiff’s 14 reported activities of daily living, which included light chores and driving, and the ability to 15 sustain work. The Ninth Circuit has made clear that “the mere fact that a plaintiff has carried on 16 certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, 17 does not in any way detract from her credibility as to her overall disability. One does not need to 18 be ‘utterly incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th 19 Cir. 2001) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 20 Because the ALJ only generally noted that Plaintiff’s reported daily activities are 21 inconsistent with her disabling limitations, the Court finds that the ALJ failed to provide a 22 sufficient basis to find Plaintiff’s allegations not entirely credible. 23 2. Plaintiff’s medical improvement 24 It appears that the ALJ also discounted Plaintiff’s symptom testimony because of 25 improvements she experienced with her hearing loss and vertigo. ECF No. 18-1 at 49. Although 26 the ALJ discussed some of the medical evidence, she failed to explain how the medical evidence 27

6 1 supported a finding that Plaintiff was not credible. For example, although the ALJ noted that there 2 were “temporary” moments of improvement, Plaintiff continued to complain of worsening 3 hearing loss to her medical providers. Plaintiff’s testimony that she “could not hear in her right 4 ear and would need the use of hearing aids” is consistent with the record and the ALJ’s own 5 summary of the record. Id. at 48–49; see Garrison, 759 F.3d at 1015. Therefore, because the 6 ALJ’s general discussion of the medical evidence did not explain how the medical evidence 7 detracted from Plaintiff’s credibility, the Court finds that the ALJ failed to provide a sufficient 8 basis to find that Plaintiff’s allegations were not entirely credible. See Lambert, 980 F.3d at 1278 9 (“Although the ALJ did provide a relatively detailed overview of [the claimant’s] medical history, 10 ‘providing a summary of medical evidence . . . is not the same as providing clear and convincing 11 reasons for finding the claimant’s symptom testimony not credible.’”) (quoting Brown-Hunter v. 12 Colvin, 806 F.3d 487, 494 (9th Cir. 2015)) (emphasis in original). 13 3. Plaintiff’s inconsistent statements 14 The Commissioner argues that the ALJ properly discounted Plaintiff’s symptom 15 testimony because it was inconsistent with statements she made to her medical providers 16 regarding her vertigo. ECF No. 21 at 17–18. However, the ALJ did not make this finding, and the 17 Court is bound to affirm an ALJ’s decision based only on a ground the ALJ invoked. See Connett 18 v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the reasons the 19 ALJ asserts.”); see also Brown-Hunter, 806 F.3d at 494. 20 4. Objective medical evidence 21 The ALJ also discounted Plaintiff’s subjective symptom testimony based on 22 inconsistencies with the objective medical record. Inconsistency with the medical record can 23 provide a clear and convincing basis for discounting a claimant’s symptoms, so long as it is not 24 the sole basis for doing so. Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 25 2009). Because the Court found that the ALJ’s other reasons were not specific, clear, and 26 convincing, this remaining reason cannot be a sufficient basis for discounting Plaintiff’s symptom 27 testimony. See id. 1 5. Whether the ALJ’s error is harmless 2 Having found that the ALJ erred by not providing specific, clear, and convincing reasons 3 to discount Plaintiff’s subjective symptom testimony, the Court must next determine whether this 4 error is harmless. 5 An error is harmless only if it is “inconsequential to the ultimate nondisability 6 determination” and if the court “can confidently conclude that no reasonable ALJ, when [not 7 making the same error] could have reached a different disability determination.” Stout v. Comm’r, 8 Soc. Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006). 9 Here, because the ALJ did not provide enough “reasoning in order for us to meaningfully 10 determine whether the ALJ’s conclusions were supported by substantial evidence,” the Court 11 cannot treat the error as harmless. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 12 (9th Cir. 2014); see also Brown-Hunter, 806 F.3d at 494–95. Moreover, because another ALJ, 13 crediting Plaintiff’s symptom testimony, could have reached a different disability determination, 14 this error was not harmless. 15 B. Whether the RFC is supported by substantial evidence 16 Plaintiff also argues that the ALJ’s RFC assessment is not supported by substantial 17 evidence. ECF No. 20 at 5–9. The RFC assessment is dependent, in part, on Plaintiff’s subjective 18 symptom testimony. See 20 C.F.R. § 404.1545(a)(3); see also Laborin v. Berryhill, 867 F.3d 19 1151, 1153 (9th Cir. 2017) (“[T]he ALJ must take ‘the claimant’s subjective experiences of pain’ 20 into account when determining the RFC.”) (citations omitted). Because the Court found that the 21 ALJ erred in discounting Plaintiff’s subjective symptom testimony and that this error is not 22 harmless, the ALJ, on remand, also must reconsider the RFC determination. 23 IV. Conclusion 24 IT IS THEREFORE ORDERED that Plaintiff’s Motion to Remand (ECF No. 20) is 25 GRANTED consistent with this Order. 26 IT IS FURTHER ORDERED that the Commissioner’s Cross-Motion to Affirm and 27 Response to Plaintiff’s Motion for Reversal and/or Remand (ECF Nos. 21, 22) is DENIED. 1 IT IS FURTHER ORDERED that, on remand, the ALJ must provide specific, clear, and 2 || convincing reasons for discounting any portion(s) of Plaintiff's subjective symptom testimony. 3 IT IS FURTHER ORDERED that, on remand, the ALJ must reconsider Plaintiff’'s RFC 4 || assessment. 5 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to enter 6 || judgment in favor of Plaintiff and close this case. 7 8 DATED: June 22, 2023. 9 pm la WOE BRENDA WEKSLER 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28