1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Dung T. N., ) NO. SA CV 20-975-E ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION ) 14 COMMISSIONER OF SOCIAL SECURITY ) AND ORDER OF REMAND ADMINISTRATION, ) 15 ) Defendant. ) 16 ___________________________________) 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on May 27, 2020, seeking review of 26 the Commissioner’s denial of benefits. On June 18, 2020, the parties 27 consented to proceed before a United States Magistrate Judge. 28 Plaintiff filed a motion for summary judgment on January 28, 2021. 1 Defendant filed a motion for summary judgment on April 7, 2021. The 2 Court has taken the motions under submission without oral argument. 3 See L.R. 7-15; “Order,” filed May 28, 2020. 4 5 BACKGROUND 6 7 Plaintiff seeks disability insurance benefits beginning May 17, 8 2015, based on allegations of back, arm and wrist pain, heart disease, 9 chronic chest pain, diabetes, major depressive disorder, anxiety 10 disorder and insomnia (Administrative Record (“A.R.”) 231-32, 254-55, 11 266, 308). Plaintiff’s last insured date was December 31, 2018 (A.R. 12 250). 13 14 An Administrative Law Judge (“ALJ”) reviewed the record and heard 15 testimony from Plaintiff and a vocational expert (A.R. 15-27, 75- 16 108).1 The ALJ found that Plaintiff has severe coronary artery 17 disease, status post coronary artery bypass graft in 2007, and severe 18 degenerative disc disease of the lumbar spine and cervical spine (A.R. 19 18). The ALJ found “nonsevere” Plaintiff’s carpal tunnel syndrome 20 (A.R. 18-19). The ALJ found that Plaintiff retains the residual 21 functional capacity to perform medium work with occasional climbing of 22 ramps/stairs and ladders/ropes/scaffolds, and occasional balancing, 23 24 1 Plaintiff had filed a previous application for benefits, which was denied for a time period ending May 16, 25 2015 – the day before Plaintiff’s alleged onset date in the 26 present case. See A.R. 112-21 (prior ALJ’s adverse decision), 126-29 (Appeals Council’s prior denial of review). Although the 27 present ALJ found no changed circumstances, the ALJ proceeded through the sequential analysis anew based on the updated record 28 1 stooping, kneeling, crouching and crawling. See A.R. 22-26 (giving 2 significant weight to the non-examining state agency physicians’ 3 opinions, partial weight to a consultative examiner’s opinion, partial 4 weight to a qualified medical examiner’s opinion, and little or no 5 weight to the treating medical opinions). In finding this capacity, 6 the ALJ discounted Plaintiff’s testimony and statements regarding his 7 subjective symptomatology as “not entirely consistent with the medical 8 evidence and other evidence in the record” (A.R. 23). 9 10 The ALJ found Plaintiff capable of performing his asserted past 11 relevant work as a soils engineer (Dictionary of Occupational Titles 12 (“DOT”) 024.161-010) as generally performed (A.R. 27 (adopting 13 vocational expert’s testimony at A.R. 94-107)). Accordingly, the ALJ 14 denied benefits (A.R. 27). The Appeals Council denied review 15 (A.R. 1-3). 16 17 STANDARD OF REVIEW 18 19 Under 42 U.S.C. section 405(g), this Court reviews the 20 Administration’s decision to determine if: (1) the Administration’s 21 findings are supported by substantial evidence; and (2) the 22 Administration used correct legal standards. See Carmickle v. 23 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 24 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 25 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such 26 relevant evidence as a reasonable mind might accept as adequate to 27 support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 28 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 1 F.3d 1063, 1067 (9th Cir. 2006). 2 3 If the evidence can support either outcome, the court may 4 not substitute its judgment for that of the ALJ. But the 5 Commissioner’s decision cannot be affirmed simply by 6 isolating a specific quantum of supporting evidence. 7 Rather, a court must consider the record as a whole, 8 weighing both evidence that supports and evidence that 9 detracts from the [administrative] conclusion. 10 11 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 12 quotations omitted). 13 14 DISCUSSION 15 16 Plaintiff contends, inter alia, that the ALJ erred in the 17 evaluation of Plaintiff’s testimony and statements regarding 18 Plaintiff’s subjective symptoms and claimed limitations. For the 19 reasons discussed below, the Court agrees. 20 21 I. Summary of the Medical Record 22 23 The medical record consists mostly of reports related to 24 Plaintiff’s workers’ compensation claim(s) and several actual 25 treatment notes. Workers’ compensation physician Dr. Gary P. Jacobs 26 prepared two Internal Medicine Evaluation Reports dated April 29, 2015 27 (A.R. 385-89). Plaintiff had complained of pain in his low back, arm, 28 chest and wrist, heartburn, gastrointestinal issues, headaches, 1 depression, anxiety, insomnia, difficulty with ramps, stairs, and 2 rising from a seated position, difficulty with above-the-shoulder 3 activities and numbness and tingling in his extremities (A.R. 385, 4 387). Dr. Jacobs diagnosed chest pain and hypertension, and Dr. 5 Jacobs deferred any orthopedic diagnosis, and any work status 6 evaluation, to Plaintiff’s primary treating physician (A.R. 386, 388). 7 8 Qualified Medical Examiner (“QME”) Dr. Norman Nakata reviewed 9 medical records and prepared a summary and an evaluation dated 10 June 13, 2015 (A.R. 390-402). Plaintiff had complained of stiffness 11 and pain in his cervical spine and lower back, headaches, weakness in 12 both hands, numbness and decreased feeling in his fingers, an 13 inability to sit longer than 30 minutes at a time, stand longer than 14 five minutes at a time, walk longer than 30 minutes at a time, and 15 lift 10 or more pounds (A.R. 396). Plaintiff had high blood pressure, 16 atherosclerotic heart disease and had undergone cardiac surgery (A.R. 17 396). On examination, Plaintiff had tenderness along his sternal 18 incision scar and in his cervical spine and shoulders, strength of 4/5 19 in the left hand and 5/5 in the right hand, positive carpal tunnel 20 signs and decreased sensation in the hands (A.R. 397-99). Dr. Nakata 21 diagnosed cervical and lumbar strain, degenerative disease of the 22 cervical and lumbar spine, overuse syndrome and tendinitis in both 23 hands and wrists, and bilateral carpal tunnel syndrome (left greater 24 than right) (A.R. 400). Dr. Nakata recommended an EMG/nerve 25 conduction study of Plaintiff’s bilateral upper extremities (A.R. 400, 26 403). Dr. Nakata prepared a supplemental report dated October 28, 27 2015, opining that Plaintiff is precluded from heavy work and from 28 repetitive bending and stooping (A.R. 584-91). 1 Workers’ compensation physician Dr. Nimish Shah reviewed the 2 record and prepared a Primary Treating Physician’s Narrative 3 Reevaluation Report dated June 17, 2015 (A.R. 410-32). Plaintiff had 4 complained of neck pain radiating to the upper extremities with 5 tingling, numbness, weakness, cramps and burning, bilateral wrist and 6 hand pain, constant low back pain radiating to the lower extremities 7 with tingling, numbness and pain, and sternal pain related to lifting 8 (A.R. 410-11). On examination, Plaintiff had slow, guarded gait, 9 tenderness in the cervical spine, tenderness in the low back, positive 10 straight leg raising, inability to walk on toes and heels, positive 11 carpal tunnel compression testing with positive Tinel’s sign and 12 Phalen’s test, tenderness to the chest scar, grip strength of 20 13 pounds or less, hypoalgesia at C6-C7 and L5-S1, and mild weakness in 14 the upper and lower extremities (A.R. 419-21). Dr. Shah diagnosed: 15 (1) possible cervical and lumbar sprain/strain with discogenic and 16 facet pain at C2-C3, C5-C6, L4-L5 and L5-S1; (2) possible bilateral 17 carpal tunnel syndrome versus bilateral upper extremity pain related 18 to cervical radiculopathy versus “double crush syndrome”; 19 (3) bilateral lumbosacral radicular pain; (4) keloid formation on the 20 chest surgery scar with tenderness; and (5) stress syndrome (anxiety, 21 depression, insomnia) (A.R. 422). Dr. Shaw extended Plaintiff’s 22 temporary total disability through October 31, 2015 (A.R. 429, 457, 23 484, 515). 24 25 Psychologist/QME Dr. Nelson J. Flores prepared a Comprehensive 26 Permanent and Stationary Psychological Evaluation Report/Medical 27 Records Review dated September 24, 2015 (A.R. 522-73). Dr. Flores 28 diagnosed major depressive disorder (single episode, mild), 1 generalized anxiety disorder, male hypoactive sexual desire disorder 2 due to chronic pain, insomnia, stress-related physiological response 3 affecting gastric disturbances, high blood pressure and headaches, 4 which Plaintiff developed subsequent to work “overload,” stress and 5 harassment in the workplace and chronic pain from work injuries (A.R. 6 525). On mental status examination, Plaintiff was cooperative, 7 although sad, anxious, apprehensive, tense and preoccupied with 8 physical symptoms and financial circumstances (A.R. 539-40). 9 Plaintiff’s concentration was sometimes deficient (A.R. 540). Dr. 10 Flores assessed a Global Assessment of Functioning (“GAF”) score of 58 11 (A.R. 544).2 Dr. Flores opined that Plaintiff should not be placed in 12 any work position where he could be at risk for industrial accident if 13 he becomes anxious and/or distracted, and Plaintiff should not work in 14 a position where he is required to handle stress and/or conflicts on a 15 regular basis while interacting with the public and/or coworkers (A.R. 16 552). 17 18 Dr. Nhan Nguyen treated Plaintiff with medications for 19 hypertension, diabetes and hyperlipidemia from October of 2014 through 20 August of 2015 (A.R. 332-33). Dr. Nguyen’s treatment records are not 21 detailed. 22 /// 23 24 2 The GAF scale is used by clinicians to report an individual’s overall level of functioning. See American 25 Psychological Association, Diagnostic and Statistical Manual of 26 Mental Disorders 34 (4th ed. 2000). A GAF of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial 27 speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., temporarily 28 1 Dr. Tuan Nguyen treated Plaintiff periodically from November of 2 2015 through at least January of 2019, with medications for diabetes, 3 coronary artery disease, exertional chest pain, shortness of breath 4 and hypertension (A.R. 361-64, 620-79). In May of 2017, Plaintiff 5 reportedly was “clinically stable” (A.R. 636). By October of 2017, 6 Plaintiff reported that he was doing well, with no active complaints 7 or cardiac symptoms (A.R. 629). In April of 2018, Plaintiff reported 8 that he could walk daily without chest pain, shortness of breath or 9 dyspnea on exertion (A.R. 633). In August of 2018, Plaintiff 10 reportedly was able to complete basic activities of daily living 11 without cardiopulmonary exertional symptoms (A.R. 643). In January of 12 2019, however, Dr. Nguyen treated Plaintiff for shortness of breath 13 (A.R. 361-64, 676-79). Plaintiff then complained of a history of 14 asthma with worsening “SOB” (shortness of breath), “DOE” (dyspnea on 15 exertion), and worsening bilateral hand tremor right more than left 16 (A.R. 361). An EKG reportedly was normal, and Plaintiff was referred 17 for an echocardiogram and to neurology for a Parkinson’s Disease 18 evaluation (A.R. 363-64). 19 20 Dr. Tuan Nguyen completed a Cardiac Residual Functional Capacity 21 Questionnaire dated January 31, 2019 (A.R. 365-69). Dr. Nguyen 22 diagnosed “CAD” (coronary artery disease) and “CHF” (congestive heart 23 failure) with “NYHA Class 3" (New York Heart Association 24 Classification), based on echo testing and Plaintiff’s history of 25 heart surgery (A.R. 365). Dr. Nguyen reported that Plaintiff has 26 “substantial” chest pain exacerbated with exertion (A.R. 365). Dr. 27 Nguyen indicated that Plaintiff has marked limitations of physical 28 activity, is capable of a low stress job, but frequently would have 1 symptoms severe enough to interfere with his attention and 2 concentration (A.R. 365-66). 3 4 Dr. Tuan Nguyen also completed a Pulmonary Residual Functional 5 Capacity Questionnaire dated July 31, 2019 (A.R. 371-75). Dr. Nguyen 6 diagnosed asthma with shortness of breath, chest tightness, rhonchi, 7 episodic acute asthma and fatigue, with asthma attacks three times a 8 year for 1-3 days precipitated by upper respiratory infection, 9 allergens, exercise, irritants and cold air/change in weather (A.R. 10 371-72). Dr. Nguyen again indicated that Plaintiff’s symptoms would 11 frequently interfere with his attention and concentration, but 12 Plaintiff would be capable of low stress jobs (A.R. 372). 13 14 In both residual functional capacity questionnaires, Dr. Nguyen 15 opined that, since November of 2016, Plaintiff: (1) could lift less 16 than 10 pounds; (2) could walk less than one block without rest or 17 severe pain; (3) could sit and stand/walk for less than two hours each 18 in an eight-hour workday; (4) could frequently twist, stoop, 19 crouch/squat, climb ladders and stairs; (5) would need to shift 20 positions at will from sitting, standing or walking; (6) would need to 21 take unscheduled breaks to lie down every two hours for 15 minutes; 22 and (7) would need to avoid all exposure to cigarettes, soldering 23 fluxes, solvents, cleaners, fumes, odors, gases, dust and chemicals 24 (A.R. 367-69, 373-75). 25 26 Dr. Vuong Nguyen and Physician’s Assistant (“PA”) Hong An Pham 27 treated Plaintiff with medications for diabetes, hypertension, 28 hyperlipidemia, coronary artery disease, exertional chest pain, 1 shortness of breath, and dyspnea on exertion from August of 2018 2 through at least January of 2019 (A.R. 660-79). Plaintiff’s 3 medications included Flovent, Albuterol, Pseudoephedrine, Flonase, 4 Zyrtec, Vascepa, Metformin, Lisonopril, Atorvastatin, Isosorbide 5 mononitrate and Metroprolol (A.R. 664). In January of 2019, Plaintiff 6 complained of fatigue, muscle weakness and chest pain on exertion and 7 with heavy lifting (A.R. 664). Plaintiff returned later in January 8 with disability forms to be completed, at which time his physical 9 examination findings reportedly were within normal limits (A.R. 666). 10 11 PA Pham completed a Physical Residual Functional Capacity 12 Questionnaire dated February 7, 2019 (A.R. 377-83). PA Pham 13 reportedly had treated Plaintiff every three months and as needed for 14 “CAD” (coronary artery disease), “SOB” (shortness of breath) on 15 exertion, insomnia, back pain with radiculopathy, diabetes, 16 hypertension, hyperlipidemia, fatigue, weakness and chest pain, for 17 which Plaintiff has a guarded prognosis (A.R. 377-78). Plaintiff 18 reportedly had generalized weakness and fatigue and therefore could 19 not walk or stand for long periods of time or lift more than 10 pounds 20 (A.R. 377). PA Pham reported that Plaintiff has limited range of 21 motion, muscle spasm, reflex changes, muscle weakness, impaired sleep, 22 grip strength of less than 10 pounds, depression and anxiety (A.R. 23 378-79). PA Pham opined that Plaintiff’s symptoms frequently would 24 interfere with his attention and concentration (A.R. 379). PA Pham 25 opined that Plaintiff: (1) could rarely lift less than 10 pounds; 26 (2) could sit for 10 minutes at a time and stand for five minutes at a 27 time; (3) could sit and stand/walk less than two hours each per day; 28 (4) would need to walk every 10 minutes; (5) must be able to shift 1 positions at will from sitting, standing and walking; (6) must take 2 unscheduled breaks every two hours for 30 minutes; (7) must elevate 3 his legs at all times; (8) must use a cane or other assistive device 4 when standing/walking; (9) could rarely look down or up, or turn his 5 head right or left or hold his head in a static position; (10) could 6 rarely twist, stoop, crouch/squat or climb stairs and could never 7 climb ladders; (11) could occasionally use his hands for reaching, 8 handling, fingering, etc., and could occasionally use his feet (A.R. 9 380-83). PA Pham opined that Plaintiff would miss more than four days 10 of work per month (A.R. 383). 11 12 Meanwhile, consultative examiner Dr. Ernest A. Bagner, III, a 13 psychiatrist, prepared a Complete Psychiatric Evaluation dated 14 February 15, 2017 (A.R. 336-39). Dr. Bagner did not review any 15 medical records (A.R. 337). Plaintiff reported a history of 16 depression, anger, anxiety, tiredness and weakness, trouble 17 concentrating, memory problems, heart problems status post heart 18 attack with open heart surgery, diabetes, high blood pressure and 19 arthritis (A.R. 336). Plaintiff reported that he walks around, 20 watches television, makes very simple meals and can dress and bathe 21 independently (A.R. 337-38). On mental status examination, Plaintiff 22 was cooperative, although he appeared angry, had rapid speech, could 23 not recall any of three objects in five minutes, and could not spell 24 “world” (A.R. 338-39). Dr. Bagner diagnosed a mood disorder (not 25 otherwise specified), and assigned a GAF of 60 with a fair prognosis 26 (A.R. 339). Dr. Bagner opined that Plaintiff would have moderate 27 limits in following detailed instructions, interacting appropriately 28 with coworkers, supervisors and the public, and responding to work 1 pressures, and he would have mild limits in his daily activities and 2 in his ability to follow simple instructions, comply with job rules 3 such as safety rules and attendance rules and respond to changes in 4 the work setting (A.R. 339). 5 6 Consultative examiner Dr. Jay Dhiman prepared an Internal 7 Medicine Evaluation dated March 22, 2017 (A.R. 342-47). It is not 8 clear whether Dr. Dhiman reviewed any medical records as part of his 9 evaluation. Plaintiff reportedly complained of radiating low back 10 pain since 2013 from heavy lifting at work, a history of open heart 11 surgery in 2007, and diabetes since 2004 (A.R. 342-43). Plaintiff 12 denied exertional chest pain and said he has occasional chest pain 13 with bending and movement (A.R. 343). On examination, Plaintiff had a 14 grip strength of 10 pounds on the right and five pounds on the left, 15 tenderness in the lower lumbar spine at midline with limited range of 16 motion, tenderness of the costochondral joints bilaterally, and 17 otherwise normal findings (A.R. 343-46; see also A.R. 349 (lumbar 18 spine x-ray which showed evidence of moderate hypertrophic changes in 19 the lumbar spine with decrease in the L4-L5 disc level)). Dr. Dhiman 20 observed that Plaintiff had a history of myocardial infarction status 21 post surgery (erroneously referenced as “status post cabbage”), a 22 history of diabetes, and tenderness on examination (A.R. 346). Dr. 23 Dhiman did not make any diagnosis (A.R. 346). Dr. Dhiman opined that 24 Plaintiff would be capable of medium work with no sitting limits or 25 reaching/manipulation limits, but with no more than frequent bending, 26 crouching and stooping (A.R. 346). 27 /// 28 /// 1 State agency physicians reviewed the medical record in April and 2 August of 2017 (A.R. 130-55). These physicians opined that, although 3 Plaintiff suffered from severe degenerative disc disease, he is 4 capable of medium work with occasional postural limits (A.R. 130-55 5 (assertedly giving great weight to the consultative examiners’ 6 opinions)).3 7 8 II. The ALJ Materially Erred in the Evaluation of Plaintiff’s 9 Testimony and Statements Regarding Plaintiff’s Subjective 10 Symptomatology and Claimed Limitations. 11 12 Plaintiff testified that he stopped working as a soil tester 13 because he no longer has sufficient lifting strength and because he 14 has heart problems, chest pain, asthma and “COPD” (chronic obstructive 15 pulmonary disease) (A.R. 81-85). More specifically, Plaintiff stated 16 that he has: (1) chest pain that worsens when he lifts heavy objects, 17 18 3 As noted above, in determining Plaintiff’s residual functional capacity, the ALJ gave: (1) “significant” weight to 19 the state agency physicians’ opinions finding Plaintiff capable of medium work (A.R. 25); (2) “partial” weight to Dr. Dhiman’s 20 opinion finding Plaintiff capable of medium work limited to no more than frequent bending, crouching and stooping (A.R. 25); 21 (3) “partial” weight to QME Nakata’s opinion that Plaintiff is 22 precluded from heavy work and repetitive bending and stooping (A.R. 26); (4) “little” weight to Dr. Tuan Nguyen’s opinion 23 finding Plaintiff capable of “less than sedentary work” as assertedly not consistent with the evidence as a whole (A.R. 26); 24 (5) “little” weight to PA Pham’s opinion finding Plaintiff capable of “less than sedentary work” as assertedly not 25 consistent with the evidence and because a physician’s assistant 26 is not an acceptable medical source (A.R. 26); (6) “little” weight to Dr. Bagner’s consultative examiner opinion that 27 Plaintiff has mental limitations (A.R. 20-21); and (7) no weight to Dr. Flores’ opinion that Plaintiff has mental limitations 28 1 climbs stairs or walks too far; (2) neck pain which keeps him from 2 looking up too long; (3) nerve damage in his arm that prevents him 3 from writing a whole page; (4) some problems holding onto objects and 4 using his hands; and (5) back pain which limits sitting to 20 minutes, 5 standing to ten minutes and walking to two or three blocks (A.R. 86- 6 87, 91-92). Plaintiff also testified that he suffers from depression, 7 which limits his socializing and concentration and which also 8 manifests in problems such as losing his way home and being unable to 9 follow a story when reading or watching television (A.R. 88-90). 10 11 In a Function Report - Adult form dated January 30, 2017, 12 Plaintiff reported that he had chronic pain preventing him from 13 lifting over 10 pounds, standing more than 10 minutes, or walking more 14 than 1/10 of a mile without rest, and that his condition prevented him 15 from paying attention for more than two minutes (A.R. 266-74). 16 Plaintiff reported that he spent his days walking “a little,” lying 17 down, making sandwiches or frozen dinners and doing laundry (for “4-5 18 min.”) (A.R. 267-69). Plaintiff reported he had no problems with his 19 own personal care, but indicated he almost never went outside, other 20 than for groceries (A.R. 267, 269). 21 22 The ALJ discounted Plaintiff’s testimony and statements as 23 assertedly “not entirely consistent with the medical evidence and 24 other evidence in the record” (A.R. 23). The ALJ stated that 25 Plaintiff’s assertions were “inconsistent with the evidence as a 26 whole,” which reportedly showed an “unremarkable” physical 27 examination, normal heart and lung functioning and no evidence of 28 neurological deficits, shortness of breath, or any need for an 1 assistive device to ambulate (A.R. 23-26). The ALJ also observed that 2 Plaintiff has been treated with pain medications, which reportedly had 3 given Plaintiff “some improvement,” that Plaintiff’s heart condition 4 assertedly was “stable,” and it “appear[ed]” that Plaintiff’s 5 degenerative disc disease and coronary artery disease were “generally” 6 “stable with medication” (A.R. 24-25). 7 8 Elsewhere in the ALJ’s written decision, the ALJ stated: 9 (1) there assertedly was no evidence Plaintiff had decreased ability 10 to use his hands and Plaintiff reportedly was able to prepare simple 11 meals, do laundry, and manage his personal care without assistance 12 (A.R. 19 (citing A.R. 267 (Function Report - Adult form)); and 13 (2) there assertedly was no evidence that Plaintiff continued to seek 14 mental health treatment after his workers’ compensation case was 15 resolved (A.R. 20). Thus, construing the ALJ’s decision liberally, it 16 appears that the ALJ discounted Plaintiff’s subjective testimony and 17 statements based on Plaintiff’s admitted daily activities, Plaintiff’s 18 failure to seek mental health treatment after his workers’ 19 compensation case resolved, and asserted inconsistencies between 20 Plaintiff’s subjective complaints and the medical record, including 21 the medical treatment record. 22 23 Where, as here, an ALJ finds that a claimant’s medically 24 determinable impairments reasonably could be expected to cause some 25 degree of the alleged symptoms of which the claimant subjectively 26 complains (A.R. 23), any discounting of the claimant’s complaints must 27 be supported by “specific, cogent” findings. See Berry v. Astrue, 622 28 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 1 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th 2 Cir. 1996) (indicating that ALJ must state “specific, clear and 3 convincing” reasons to reject a claimant’s testimony where there is no 4 evidence of malingering).4 Generalized, conclusory findings do not 5 suffice. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) 6 (the ALJ’s credibility findings “must be sufficiently specific to 7 allow a reviewing court to conclude the ALJ rejected the claimant’s 8 testimony on permissible grounds and did not arbitrarily discredit the 9 claimant’s testimony”) (internal citations and quotations omitted); 10 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ 11 must “specifically identify the testimony [the ALJ] finds not to be 12 credible and must explain what evidence undermines the testimony”); 13 Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically 14 which symptom testimony is not credible and what facts in the record 15 lead to that conclusion.”); see also Social Security Ruling (“SSR”) 16 /// 17 /// 18 /// 19 4 In the absence of an ALJ’s reliance on evidence of 20 “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Leon v. Berryhill, 21 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 22 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 23 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 24 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting 25 earlier cases). In Ahearn v. Saul, 988 F.3d 1111, 1116 (9th Cir. 26 2021), the Ninth Circuit appeared to apply both the “specific, cogent” standard and the “clear and convincing” standard. In the 27 present case, the ALJ’s findings are insufficient under either standard, so the distinction between the two standards (if any) 28 1 96-7p (explaining how to assess a claimant’s credibility), superseded, 2 SSR 16-3p (eff. March 28, 2016).5 3 4 The ALJ’s stated reasons for discounting Plaintiff’s subjective 5 testimony and statements are legally insufficient. Turning first to 6 Plaintiff’s daily activities, inconsistencies between admitted daily 7 activities and claimed incapacity properly may impugn the accuracy of 8 a claimant’s testimony and statements under certain circumstances. 9 See, e.g., Thune v. Astrue, 499 Fed. App'x 701, 703 (9th Cir. 2012) 10 (ALJ properly discredited pain allegations as contradicting claimant’s 11 testimony that she gardened, cleaned, cooked, and ran errands); 12 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) 13 (claimant’s “normal activities of daily living, including cooking, 14 house cleaning, doing laundry, and helping her husband in managing 15 finances” provided sufficient explanation for discounting claimant’s 16 testimony). Yet, it is difficult to reconcile Ninth Circuit opinions 17 discussing when a claimant’s admitted activities may and may not 18 justify a discounting of the claimant's testimony and statements. 19 Compare Stubbs-Danielson v. Astrue with Vertigan v. Halter, 260 F.3d 20 1044, 1049-50 (9th Cir. 2001) (“the mere fact that a plaintiff has 21 carried on certain daily activities, such as grocery shopping, driving 22 23 5 Social Security Rulings (“SSRs”) are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 24 (9th Cir. 1990). The appropriate analysis under the superseding SSR is substantially the same as the analysis under the 25 superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 26 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16-3p “implemented a change in diction rather than substance”) (citations omitted); 27 see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16–3p “makes clear what our precedent 28 1 a car, or limited walking for exercise, does not in any way detract 2 from her credibility as to her overall disability”); see also Diedrich 3 v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017) (daily activities 4 of cooking, cleaning, vacuuming, washing dishes, shopping and cleaning 5 a cat’s litter box insufficient to discount the claimant’s subjective 6 complaints). 7 8 In the present case, Plaintiff’s limited admitted daily 9 activities do not significantly undermine his subjective complaints. 10 Although Plaintiff reported no difficulty with personal care and 11 indicated that he could make sandwiches or frozen meals and do laundry 12 for a few minutes at a time, none of these activities necessarily 13 contradict Plaintiff’s claimed inability to function as required in a 14 work setting, including a claimed inability to use his hands 15 sufficiently to work at a job. Thus, Plaintiff’s limited admitted 16 daily activities do not furnish a legally sufficient reason to 17 discount his subjective complaints. See Revels v. Berryhill, 874 F.3d 18 648, 667-68 (9th Cir. 2017). 19 20 With respect to Plaintiff’s asserted failure to seek mental 21 health treatment after his workers’ compensation case resolved, an ALJ 22 sometimes may discount a claimant’s allegations based on a claimant’s 23 failure to seek treatment or follow a prescribed course of treatment. 24 See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (in 25 assessing claimant’s credibility, ALJ may properly rely on 26 “unexplained or inadequately explained failure to seek treatment or to 27 follow prescribed course of treatment”). However, “it is a 28 questionable practice to chastise one with a mental impairment for the 1 exercise of poor judgment in seeking rehabilitation.” Nguyen v. 2 Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (citation omitted). In 3 this case, there is no suggestion that Plaintiff failed to follow 4 mental health treatment recommendations when treatment was available. 5 On this record, Plaintiff’s asserted failure to seek mental health 6 treatment after his workers’ compensation case resolved is not a 7 legally sufficient reason to reject Plaintiff’s testimony that his 8 depression causes him to have significant issues with concentration. 9 10 With respect to perceived inconsistencies between Plaintiff’s 11 subjective complaints and the objective medical record, such perceived 12 inconsistencies are not in themselves legally sufficient reasons for 13 discounting Plaintiff’s testimony and statements. An asserted lack of 14 objective medical evidence can be a factor in discounting a claimant’s 15 subjective complaints, but cannot “form the sole basis.” See Burch v. 16 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins v. Massanari, 261 17 F.3d 853, 857 (9th Cir. 2001). To the extent the ALJ stated other 18 reasons for rejecting Plaintiff’s testimony, as discussed above, those 19 other stated reasons are infirm. Thus, the ALJ’s reliance on any 20 alleged inconsistency between Plaintiff’s subjective complaints and 21 the objective medical evidence cannot properly support the ALJ’s 22 decision. See id. 23 24 Even if the law permitted an ALJ to rely solely on 25 inconsistencies between a claimant’s subjective complaints and the 26 objective medical evidence, the ALJ’s reasoning in the present case 27 would still be deficient. As summarized above, the medical record 28 includes diagnoses and examination findings consistent, rather than 1 inconsistent, with Plaintiff’s subjective complaints. Diagnoses 2 include cervical and lumbar strain, degenerative disc disease, overuse 3 syndrome and tendinitis of both hands and wrists, bilateral carpal 4 tunnel syndrome (left greater than right), asthma, shortness of 5 breath, chest tightness and rhonchi. Examination findings include 6 significant pain and limited range of motion, as well as positive test 7 results on straight leg raising and carpal tunnel testing. Thus, 8 Plaintiff’s subjective complaints are not necessarily inconsistent 9 with the objective medical evidence.6 10 11 The Court is unable to conclude that the ALJ’s failure to state 12 legally sufficient reasons for discounting Plaintiff’s subjective 13 complaints was harmless. “[A]n ALJ’s error is harmless where it is 14 inconsequential to the ultimate non-disability determination.” Molina 15 v. Astrue, 674 F.3d at 1115 (citations and quotations omitted). Here, 16 the vocational expert did testify that a person limited to light work 17 with occasional use of the hands and limited neck motion could perform 18 Plaintiff’s past relevant work as a soils engineer (A.R. 104–05; see 19 also DOT 024.161-010, Engineer, Soils, 1991 WL 646509 (4th Ed. R. 20 1991) (listing job requirements)). However, the vocational expert 21 also testified that, if Plaintiff were limited to sedentary work, 22 there would be no skills transferrable to sedentary work and no jobs 23 /// 24 25 6 To the extent Defendant may suggest additional reasons 26 not expressly specified by the ALJ for discounting Plaintiff’s subjective complaints, the Court may not rely on any such 27 reasons. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (the court “cannot affirm the decision of an agency on a 28 1 Plaintiff could perform (A.R. 106).7 There is no substantial evidence 2 in the record that a person as limited as Plaintiff claims to be could 3 perform any job. 4 5 III. Remand is Appropriate. 6 7 Because the circumstances of this case suggest that further 8 administrative proceedings could remedy the ALJ’s errors, remand is 9 appropriate. See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 10 see generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of 11 an administrative determination, the proper course is remand for 12 additional agency investigation or explanation, except in rare 13 circumstances); Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017) 14 (reversal with a directive for the immediate calculation of benefits 15 is a “rare and prophylactic exception to the well-established ordinary 16 remand rule”); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) 17 (“Unless the district court concludes that further administrative 18 proceedings would serve no useful purpose, it may not remand with a 19 direction to provide benefits”); Treichler v. Commissioner, 775 F.3d 20 1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative 21 proceedings is the proper remedy “in all but the rarest cases”); 22 Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 23 24 7 A person of “advanced age” (i.e., over age 55) who is limited to sedentary work, and who has a high school education 25 with no transferrable skills, is conclusively presumed to be 26 disabled under the Medical Vocational guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2 (“the Grids”). See Grid Rule 201.06; see 27 also Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir. 1989) (a conclusion of disability, directed by the Grids, is irrebutable). 28 1 U.S. 1038 (2000) (remand for further proceedings rather than for the 2 immediate payment of benefits is appropriate where there are 3 “sufficient unanswered questions in the record”); Connett v. Barnhart, 4 340 F.3d 871, 876 (9th Cir. 2003) (“Connett”) (remand is an option 5 where the ALJ fails to state sufficient reasons for rejecting a 6 claimant’s excess symptom testimony); but see Orn v. Astrue, 495 F.3d 7 625, 640 (9th Cir. 2007) (citing Connett for the proposition that 8 “[w]hen an ALJ’s reasons for rejecting the claimant’s testimony are 9 legally insufficient and it is clear from the record that the ALJ 10 would be required to determine the claimant disabled if he had 11 credited the claimant’s testimony, we remand for a calculation of 12 benefits”) (quotations omitted); see also Brown-Hunter v. Colvin, 806 13 F.3d 487, 495-96 (9th Cir. 2015) (discussing the narrow circumstances 14 in which a court will order a benefits calculation rather than further 15 proceedings); Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014) 16 (remanding for further proceedings where the ALJ failed to state 17 sufficient reasons for deeming a claimant’s testimony not credible); 18 Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (a court need 19 not “credit as true” improperly rejected claimant testimony where 20 there are outstanding issues that must be resolved before a proper 21 disability determination can be made). There are outstanding issues 22 that must be resolved before a proper disability determination can be 23 made in the present case. 24 /// 25 /// 26 /// 27 /// 28 /// 1 CONCLUSION 2 3 For all of the foregoing reasons,8 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: April 13, 2021. 10 11 /S/ 12 CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8 The Court has not reached any other issue raised by 27 Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be 28