Cristina Flores v. Kilolo Kijakazi

Opinion

CRISTINA F., ) Case No. 2:20-cv-00477-SP ) Plaintiff, ) ) v. ) MEMORANDUM OPINION AND ) ORDER ) KILOLO KIJAKAZI, Acting ) Commissioner of Social Security ) Administration, ) ) ) Defendant. ) ) I. On January 16, 2020, plaintiff Cristina F. filed a Complaint against defendant, the Commissioner of the Social Security Administration (“Commissioner”), seeking review of a denial of a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”). The parties have fully briefed the issue in dispute, and the court deems the matter suitable for adjudication without oral argument. Plaintiff presents one disputed issue for decision, namely whether the Administrative Law Judge (“ALJ”) improperly discounted plaintiff’s subjective symptom testimony. Plaintiff’s Memorandum in Support of Complaint (“P. Mem.”) at 5-11; see Defendant’s Memorandum in Support of Answer (“D. Mem.”) at 2-6. Having carefully studied the parties’ memoranda, the Administrative Record (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, the ALJ did not provide clear and convincing reasons to discount plaintiff’s testimony. The court therefore remands this matter to the Commissioner in accordance with the principles and instructions enunciated in this Memorandum Opinion and Order. II. Plaintiff, who was 50 years old on the alleged disability onset date, attended some high school. AR at 36 n.1, 253. Plaintiff has past relevant work as a cashier, and allegedly possesses limited English-speaking proficiency. AR at 233-34, 243. On October 31, 2016, plaintiff filed an application for a period of disability and DIB, followed by an application for SSI on November 1, 2016. AR at 254, 270. Plaintiff alleges a disability onset date of September 1, 2015 due to depression, anxiety, anemia, arthritis, and tinnitus. AR at 253-54, 269-70. Plaintiff’s applications were initially denied on February 2, 2017. AR at 286. Plaintiff requested a hearing, which the assigned ALJ held on July 30, 2018. AR at 226. Plaintiff, represented by counsel and assisted by a Spanish language interpreter, appeared and testified at the hearing. AR at 228-43. The ALJ also heard testimony from Ronald Hatakeyama, a vocational expert. R at 241-50. The ALJ denied plaintiff’s claims on November 30, 2018. AR at 36-52. Applying the well-established five-step sequential evaluation process, the ALJ found, at step one, that plaintiff has not engaged in substantial gainful activity since September 1, 2015, the alleged onset date. AR at 39. At step two, the ALJ found plaintiff suffers from several severe impairments: depression, anemia, mild right knee joint space narrowing, plantar fasciitis, and chiari malformation. Id. At step three, the ALJ found plaintiff’s impairments, whether individually or in combination, did not meet or medically equal one of the listed impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR at 41. The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and determined she had the RFC to perform light work, with the following limitations: The claimant is able to lift 20 pounds occasionally and 10 pounds frequently; stand 6 hours in an 8-hour workday and sit 6 hours in an 8-hour workday; occasionally climb ramps and stairs; never climb ladders, ropes, and scaffolds; occasionally balance, stoop, kneel, crouch, and crawl; frequent fingering bilaterally; be able to sit for 2-3 minutes after standing for 30 to 60 minutes, and stand for 2-3 minutes after sitting for 30 to 60 minutes; use a walker to and from the workstation, but not at the workstation for balancing; avoid working outside in bright sunlight; no work with bright lights, and avoid excessive noise. The individual can understand and follow simple instructions and directions; perform simple tasks with or without supervision; can maintain attention and concentration for simple tasks; regularly attend to a routine and maintain a schedule; can relate to and interact appropriately with co-workers and supervisors but should 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 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step 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 Cir. 2007). have only occasional interaction with the public. Work should be limited to simple tasks, involving only simple, work-related decisions with few, if any, work place changes. The individual can only speak and understand simple English. AR at 45-46. The ALJ found, at step four, that plaintiff was unable to perform her past relevant work as a cashier. AR at 50. At step five, the ALJ considered plaintiff’s age, education, work experience, and RFC, and found plaintiff could perform jobs that exist in significant numbers in the national economy, including small products assembler, general inspector, and office helper. AR at 51-52. Accordingly, the ALJ concluded plaintiff was not under a disability, as defined in the Social Security Act. Plaintiff filed a timely request for review, but the Appeals Council denied the request on November 21, 2019. AR at 1-4. Accordingly, the ALJ’s decision is the final decision of the Commissioner. This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). “Substantial evidence is more than a mere scintilla, but less than a preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial evidence is such “relevant evidence which a reasonable person might accept as adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citations omitted); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ’s finding, the reviewing court must review the administrative record as a whole, “weighing both the evidence that supports and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (internal quotation marks omitted). If the evidence can reasonably support either affirming or reversing the ALJ’s decision, the reviewing court “may not substitute its judgment for that of the ALJ.” Id. (internal quotation marks omitted). IV. Plaintiff argues the ALJ failed to provide specific, clear, and convincing reasons for rejecting her subjective symptom testimony. P. Mem. at 5. Plaintiff contends the ALJ’s only reason – that her testimony was inconsistent with the objective medical evidence – is insufficient under the law. Id. at 10-11. Defendant maintains the ALJ listed several reasons for discounting plaintiff’s testimony, including her inconsistent statements and a lack of supporting objective medical evidence. See D. Mem. at 2-4. As an initial matter, the court looks to Social Security Ruling (“SSR”) 16-3p for guidance on evaluating plaintiff’s alleged symptoms. SSR 16-3p rescinded and superseded SSR 96-7p and applies to decisions made on or after March 28, 2016. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). “Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all components of the Social Security Administration.” Id. (citing 20 C.F.R. § 402.35(b)(1)). In adopting SSR 16-3p, the Social Security Administration sought to “clarify that subjective symptom evaluation is not an examination of an individual’s character.” Id. at *2. [SSR 16-3p] makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to evaluate the intensity and persistence of symptoms after the ALJ finds that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms, and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness. Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (internal quotation marks and alterations omitted). To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step analysis. Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) (quoting Trevizo, 871 F.3d at 678). First, the ALJ must determine whether the claimant produced objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Id. Second, if the claimant satisfies the first step, and there is no evidence of malingering, the ALJ must evaluate the intensity and persistence of the claimant’s symptoms and determine the extent to which they limit her ability to perform work-related activities. Id. In assessing intensity and persistence, the ALJ may consider: a claimant’s daily activities; the location, duration, frequency, and intensity of the symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of medication taken to alleviate the symptoms; other treatment received; other measures used to relieve the symptoms; and other factors concerning the claimant’s functional limitations and restrictions due to the symptoms. Id. (citing 20 C.F.R. § 416.929; SSR 16-3p, 2017 WL 5180304, at *4; Smolen v. Chater, 80 F.3d 1273, 1283-84 & n.8 (9th Cir. 1996)). If the ALJ rejects the claimant’s subjective symptom statements at step two, the ALJ must provide “specific, clear, and convincing” reasons, supported by substantial evidence in the record, for doing so. Id. at 921, 929. Here, at the first step, the ALJ found plaintiff’s medically determinable impairments could reasonably be expected to cause the symptoms alleged. AR at 50. At the second step, the ALJ discounted plaintiff’s testimony. Id. Because plaintiff cleared step one and the ALJ found no evidence of malingering, the ALJ’s reasons for discounting plaintiff’s testimony had to be specific, clear, convincing, and supported by substantial evidence. In discounting plaintiff’s testimony, the ALJ set forth the standard to be followed in considering a claimant’s symptoms, recounted plaintiff’s pertinent testimony regarding her symptoms, and provided a thorough discussion of the medical evidence in the record, including plaintiff’s treatment history and the medical opinions. AR at 46-50. The ALJ then concluded that while plaintiff’s impairments could cause her alleged symptoms, her “statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” AR at 50. The ALJ gave no clear indication what “other evidence” in the record the ALJ found to be inconsistent with plaintiff’s testimony. Where an ALJ rejects a claimant’s testimony, the ALJ must “specifically identify the testimony [from the claimant] that she or he finds not to be credible and . . . explain what evidence undermines the testimony.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Holohan, 246 F.3d at 1208). The ALJ here explicitly found the medical evidence to be inconsistent with plaintiff’s symptom testimony, but plaintiff argues there was no “logical bridge” between the testimony the ALJ found unsupported and the evidence that undermines it. P. Mem. at 9 (citing Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003)); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (ALJ must identify which of claimant’s statement are found not credible and why). While the lines between plaintiff’s testimony and the inconsistent medical evidence here might have been more explicitly drawn, on balance the court finds the ALJ’s juxtaposition of plaintiff’s testimony and the inconsistent medical evidence to have been sufficiently clear for the court to evaluate. See AR at 46-49. But this is not enough. The lack of objective medical evidence to support allegations of limitations is a factor that may be considered when evaluating the testimony, but it is insufficient by itself. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (lack of corroborative objective medicine may be one factor in evaluating subjective symptom testimony); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (an ALJ “may not reject a claimant’s subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain”); accord Christine G., 402 F. Supp. 3d at 923. Here, the ALJ only clearly cited lack of supporting medical evidence as a reason to discount plaintiff’s testimony. Defendant points to inconsistent statements by plaintiff that the ALJ noted elsewhere in the decision and might have been a basis used by the ALJ to discount plaintiff’s testimony. See D. Mem. at 3. But it is not at all clear that the ALJ in fact relied on any of these in discounting plaintiff’s testimony. For example, defendant points to a footnote in the ALJ’s decision that notes inconsistencies in the record regarding plaintiff’s English language abilities (see AR at 36 n.1); however, it is unclear whether the ALJ relied on this inconsistency in discounting plaintiff testimony and, if so, what aspect of plaintiff’s testimony this would undercut. To the extent this might go to plaintiff’s credibility generally, it would seem to go against the new SSR, which urges SSA judges “not to delve into wide- ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo, 871 F.3d at 678 n.5. The ALJ also pointed to plaintiff’s testimony that she no longer had a desire to work after her mother died as inconsistent with her testimony she was unable to return to work due to a knee problem. AR at 42. But even if the ALJ relied on this in discounting plaintiff’s testimony – and again, this is not apparent – there is not necessarily anything inconsistent in being unable to work due to a knee problem and also having no desire to work due to mental health issues. In short, the only reason the ALJ articulated for discounting plaintiff’s testimony was that her subjective symptoms were not supported by the objective medical evidence. By itself, this was not a clear and convincing reason. The ALJ therefore erred in discounting plaintiff’s testimony. V. The decision whether to remand for further proceedings or reverse and award benefits is within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this discretion to direct an immediate award of benefits where: “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinions; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with instructions to calculate and award benefits). But where there are outstanding issues that must be resolved before a determination can be made, or it is not clear from the record that the ALJ would be required to find a plaintiff disabled if all the evidence were properly evaluated, remand for further proceedings is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for further proceedings when, even though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled. Garrison, 759 F.3d at 1021. Here, as set forth above, remand is appropriate because there are outstanding issues that must be resolved before it can be determined whether plaintiff is disabled. The ALJ must reconsider plaintiffs testimony and either credit her testimony or provide clear and convincing reasons to reject it. The ALJ must then reassess plaintiff's RFC, and proceed through steps four and five to determine what work, if any, plaintiff is capable of performing. VI. IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. DATED: September 30, 2021 LRP Ne SHERI PYM United States Magistrate Judge 10