1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LINDSEY A.S., ) Case No. SA CV 19-94-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) ANDREW M. SAUL, Commissioner of ) 15 Social Security Administration, ) ) 16 Defendant. ) ) 17 ) ) 18 19 I. 20 INTRODUCTION 21 On January 18, 2019, plaintiff Lindsey A.S. filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of disabled child’s insurance 24 benefits (“DCIB”) for an adult disabled since childhood. The parties have fully 25 briefed the matters in dispute, and the court deems the matter suitable for 26 adjudication without oral argument. 27 Plaintiff presents three disputed issues for decision: (1) whether the 28 1 Administrative Law Judge (“ALJ”) erred in assessing plaintiff’s impairments at 2 step two and in determining her residual functional capacity (“RFC”); (2) whether 3 the ALJ erred at step three; and (3) whether the ALJ properly considered plaintiff’s 4 subjective complaints. Memorandum in Support of Plaintiff’s Complaint (“P. 5 Mem.”) at 4-11; see Defendant’s Memorandum in Support of Defendant’s Answer 6 (“D. Mem.”) at 1-9; Plaintiff’s Reply (“Reply”) at 2-8. 7 Having carefully studied the parties’ memoranda, the Administrative Record 8 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 9 the ALJ erred when he failed to account for plaintiff’s severe impairment of 10 cerebral palsy at step two and in the RFC determination, and when he discounted 11 plaintiff’s subjective symptom testimony. The court therefore remands this matter 12 to the Commissioner in accordance with the principles and instructions enunciated 13 herein. 14 II. 15 FACTUAL AND PROCEDURAL BACKGROUND 16 Plaintiff, who was 11 years old on September 1, 1990, the alleged disability 17 onset date, is a college graduate who also completed an esthetician program. AR at 18 39, 49, 58, 450. She has no past relevant work. Id. at 53. 19 On July 23, 2015, plaintiff filed an application for SSI due to epilepsy, 20 cerebral palsy, facial tics, foot deformity, and depression. Id. at 193-98. The 21 application was denied initially, after which plaintiff filed a request for a hearing. 22 Id. at 73-79. Subsequently, on April 3, 2017, plaintiff filed an application for 23 DCIB. Id. at 208-11. 24 On October 4, 2017, the ALJ held a hearing. Id. at 34-57. Plaintiff, 25 represented by counsel, appeared and testified at the hearing. Id. The ALJ also 26 heard testimony from Dr. Martin Brodwin, a vocational expert. See id. at 53-56. 27 On December 19, 2017, the ALJ awarded plaintiff SSI benefits, finding her 28 1 disabled beginning July 23, 2015, but denied plaintiff’s claims for DCIB benefits. 2 Id. at 15-26. 3 In order for a claimant 18 years of age or older to qualify for DCIB, she 4 must demonstrate she had a disability that began before turning 22 years of age. 20 5 C.F.R. § 404.350(a)(5). Here, before applying the well-known five-step sequential 6 evaluation process, the ALJ determined plaintiff must establish her disability prior 7 to July 15, 2001, when she attained the age of 22. AR at 17. 8 The ALJ then found, at step one, that plaintiff had not engaged in substantial 9 gainful activity since the alleged onset date. Id. 10 At step two, as relevant here, the ALJ found that through July 15, 2001, 11 plaintiff suffered from the severe impairment of a seizure disorder. Id. at 18. 12 At step three, the ALJ found plaintiff’s impairments, whether individually or 13 in combination, did not meet or medically equal one of the listed impairments set 14 forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (“Listing”). Id. at 20. 15 The ALJ then assessed plaintiff’s RFC,1 and determined that through July 16 15, 2001, plaintiff had the RFC to perform a full range of work at all exertional 17 levels, but with the nonexertional limitations that plaintiff was precluded from: 18 climbing ladders, ropes, and scaffolds; working at unprotected heights; working 19 around dangerous moving machinery; and driving automotive equipment at work. 20 Id. at 21. The ALJ further found plaintiff had no limitations in the ability to: 21 understand, remember, and carry out simple and complex instructions; interact 22 with supervisors, coworkers, and the general public; and respond appropriately to 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 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 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 1 usual work situations or changes in a routine work setting. Id. 2 At step four, the ALJ found plaintiff had no past relevant work. Id. at 24. 3 At step five, the ALJ found that through July 15, 2001, there were jobs that 4 existed in significant numbers in the national economy that plaintiff could have 5 performed, including product packer, product assembler, and product gluer/labeler, 6 prior to age 22. Id. at 24-25. Consequently, regarding the DCIB application, the 7 ALJ concluded plaintiff was not disabled as defined by the Social Security Act at 8 any time prior to attaining age 22. Id. at 25-26. 9 Plaintiff filed a timely request for review of the ALJ’s denial of the DCIB 10 application. Id. at 189-92. Plaintiff submitted additional evidence for the Appeals 11 Council to consider, consisting of a disability verification form by Dr. Perry 12 Lubens dated September 29, 1998, a letter from Dr. Lubens dated June 28, 2000, 13 and a letter by Dr. Lubens dated March 7, 2018. Id. at 5, 846-49. The Appeals 14 Council denied the request for review on November 30, 2018. Id. at 1-3. The 15 ALJ’s decision stands as the final decision of the Commissioner. 16 III. 17 STANDARD OF REVIEW 18 This court is empowered to review decisions by the Commissioner to deny 19 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 20 Administration must be upheld if they are free of legal error and supported by 21 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 22 (as amended). But if the court determines the ALJ’s findings are based on legal 23 error or are not supported by substantial evidence in the record, the court may 24 reject the findings and set aside the decision to deny benefits. Aukland v. 25 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 26 1144, 1147 (9th Cir. 2001). 27 “Substantial evidence is more than a mere scintilla, but less than a 28 1 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 2 “relevant evidence which a reasonable person might accept as adequate to support 3 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 4 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 5 finding, the reviewing court must review the administrative record as a whole, 6 “weighing both the evidence that supports and the evidence that detracts from the 7 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 8 affirmed simply by isolating a specific quantum of supporting evidence.’” 9 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 10 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 11 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 12 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 13 1992)). 14 IV. 15 DISCUSSION 16 A. The ALJ Failed to Properly Consider Plaintiff’s Cerebral Palsy at Step 17 Two and in the RFC Determination. 18 Plaintiff contends the ALJ erred at step two when, contrary to medical 19 evidence, he failed to find plaintiff had the severe impairments of cerebral palsy, 20 dyscognitive seizures, severe fatigue, major depressive disorder, facial tics and 21 tremors, and medication side effects. P. Mem. at 4-6; Reply at 2-4. Plaintiff 22 further suggests that the ALJ’s errors in evaluating the medical evidence resulted in 23 an improper RFC determination. P. Mem. at 8; Reply at 2-4. 24 At step two, the Commissioner considers the severity of the claimant’s 25 impairments. 20 C.F.R. § 404.1520(a)(4)(ii). “[T]he step-two inquiry is a de 26 minimis screening device to dispose of groundless claims.” Smolen v. Chater, 80 27 F.3d 1273, 1290 (9th Cir. 1996). “An impairment or combination of impairments 28 1 can be found not severe only if the evidence establishes a slight abnormality that 2 has no more than a minimal effect on an individual’s ability to work.” Id. (citation 3 and quotation marks omitted). 4 Here, at step two, the ALJ found that prior to July 15, 2001, plaintiff’s only 5 severe impairment was a seizure disorder. AR at 18. Beginning on the alleged SSI 6 onset date of July 23, 2015, the ALJ determined that plaintiff had the severe 7 impairment of medically refractory epilepsy, secondary to polymicrogyria with 8 cerebral palsy, status post vagus nerve stimulator (“VNS”) implantation. Id. The 9 ALJ found plaintiff had been diagnosed with cerebral palsy and clinical findings of 10 right hemiparesis, but he determined that there was no evidence that plaintiff had 11 been diagnosed with cerebral palsy prior to the VNS implantation in December 12 2015. Id. The ALJ further found that plaintiff did not have a mental impairment 13 prior to July 15, 2001, and her foot deformity was a non-severe impairment. Id. at 14 18-19. 15 With regard to plaintiff’s cerebral palsy, there is substantial evidence in the 16 medical record that plaintiff had cerebral palsy prior to July 15, 2001, which was 17 unrelated to the VNS implant. As the ALJ notes, plaintiff’s medical records from 18 2017 reflect that plaintiff had cerebral palsy that caused right hemiparesis. Id. at 19 18, 726, 738. The records, however, do not indicate that she acquired her cerebral 20 palsy at that time. Rather, Dr. Laura Kalayjian, plaintiff’s treating physician, 21 clarified in a 2017 letter that plaintiff’s epilepsy and cerebral palsy was “due to a 22 congenital brain deformity known as schizencephaly or biparietal polymicrogyria.” 23 Id. at 844 (emphasis added). Moreover, plaintiff’s medical records prior to age 22 24 reflect plaintiff’s cerebral palsy and impairments. A medical report from May 25 1991, when plaintiff was 11 years old, indicates an MRI conducted on plaintiff 26 showed she had “bilateral fused (closed-lip) schizencephaly,” the same brain 27 malformation that Dr. Kalayjian identified as the cause of plaintiff’s cerebral palsy. 28 1 Id. at 657. In treatment progress notes prior to 2001, plaintiff’s treating physician 2 Dr. Lubens further reported that plaintiff exhibited a mild right hemiparesis. Id. at 3 633-34, 647. Finally, although not considered by the ALJ, a disability verification 4 report from Dr. Lubens dated September 29, 1998 stated that plaintiff had a 5 diagnosis of cerebral palsy with a mild right hemiparesis. Id. at 846; see Brewes v. 6 Comm’r of SSA, 682 F.3d 1157, 1162-63 (9th Cir. 2012) (finding that additional 7 evidence submitted to and reviewed by the Appeals Council becomes part of the 8 record). Thus, it is clear from the medical record that plaintiff had cerebral palsy 9 causing right hemiparesis prior to her turning 22, a point which defendant 10 effectively concedes. See D. Mem. at 2. 11 The next issue then is whether plaintiff’s impairment of cerebral palsy was 12 severe prior to July 15, 2001. The ALJ found plaintiff’s cerebral palsy was a 13 severe impairment beginning on July 23, 2015. AR at 18. There is nothing in the 14 record to support finding plaintiff’s congenital cerebral palsy was severe after 2015 15 but not prior to 2001; instead, as discussed, the ALJ appeared to make this finding 16 based on mistaken belief plaintiff only acquired cerebral palsy in 2015 after she 17 underwent VNS implantation. See id. Indeed, both the medical record and 18 plaintiff’s testimony reflect the same impairments stemming from plaintiff’s 19 cerebral palsy, including issues with balance and cognition, prior to July 15, 2001 20 and after July 23, 2015. See id. at 47-50, 652-53, 721, 844, 846-69. Therefore, 21 plaintiff’s cerebral palsy was a severe impairment prior to age 22, and the ALJ 22 erred at step two. 23 An error at step two may be harmless where, as here, step two was otherwise 24 decided in plaintiff’s favor. See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 25 2005). This is only the case, however, where the ALJ nonetheless considered the 26 impairment in the RFC determination. See Lewis v. Astrue, 498 F.3d 909, 911 27 (finding step two error harmless when the ALJ considered the impairment at step 28 1 four); see also Social Security Ruling (“SSR”) 96-8p (“In assessing RFC, the 2 adjudicator must consider limitations and restrictions imposed by all of an 3 individual’s impairments, even those that are not ‘severe.’”). Here, plaintiff’s RFC 4 does not include any limitations related to plaintiff’s physical and cognitive 5 impairments from cerebral palsy. Although the ALJ stated that he considered all 6 symptoms in reaching his RFC determination, it appears that he focused solely on 7 plaintiff’s seizure disorder, the only severe impairment he found plaintiff had prior 8 to age 22. See AR at 21-22. 9 Defendant contends that the ALJ’s error was harmless because there is no 10 evidence that plaintiff required additional limitations due to her cerebral palsy that 11 would change her RFC. D. Mem. at 2-3. That may be the case for plaintiff’s 12 physical impairments. Despite observing numerous physical impairments from her 13 cerebral palsy, including poor balance, right side weakness, and tics, plaintiff’s 14 treating physicians did not opine that these physical impairments caused any 15 functional limitations. AR at 652-53, 721, 844, 846-49. But the same cannot be 16 said for plaintiff’s cognitive limitations. In her 2017 letter, Dr. Kalayjian stated that 17 plaintiff had cognitive impairments from her congenital brain deformity, and she 18 opined that plaintiff would not be able to keep pace in a normal work environment 19 due to trouble with her memory and concentration. Id. at 844. This functional 20 limitation in maintaining pace is supported by the medical record, including Dr. 21 Lubens’s disability verification report to plaintiff’s college in which he stated that 22 plaintiff had learning disabilities related to speech, language, and processing speed 23 that required accommodations for exams and tutoring, and a neurological 24 examination from plaintiff’s childhood that reflects she had trouble in school and 25 spoke slowly with dysarthria. Id. at 657-58, 846. Thus, if the ALJ had considered 26 the medical evidence and opinions about plaintiff’s cognitive limitations from her 27 congenital cerebral palsy, his RFC determination may have been different. 28 1 Finally, plaintiff contends the ALJ failed to consider other severe 2 impairments, including dyscognitive seizures, severe fatigue, medication side 3 effects, major depressive disorder, and facial tics and tremors. P. Mem. at 6, 8. In 4 fact, the ALJ did find plaintiff’s seizure disorder a severe impairment at step two 5 and accounted for plaintiff’s seizures in the RFC determination. AR at 18, 21. 6 Nonetheless, as discussed below, the ALJ erred in discounting plaintiff’s subjective 7 complaints about her dyscognitive seizures, including her fatigue and medication 8 side effects, which may require additional RFC limitations. As for her claims of 9 depression, facial tics, and tremors prior to age 22, neither plaintiff nor her treating 10 physicians alleged any functional limitations that would have changed the RFC 11 determination. Thus, the court need not reach the issue of whether the ALJ erred in 12 considering these impairments at step two, because any error would have been 13 harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“[A]n ALJ’s 14 error is harmless where it is ‘inconsequential to the ultimate nondisability 15 determination.’”). 16 Accordingly, the ALJ erred at step two in not finding plaintiff suffered from 17 the severe impairment of cerebral palsy and failing to properly consider this 18 impairment in determining plaintiff’s RFC prior to age 22. 19 B. The ALJ Did Not Err at Step Three 20 Plaintiff argues the ALJ erred in evaluating medical opinions, but focuses this 21 argument on whether the ALJ erred at step three.2 P. Mem. at 6. Specifically, 22 plaintiff contends the ALJ should have considered her testimony and the opinion of 23 24 2 In plaintiff’s Reply, she argues, for the first time, that the ALJ erred in discounting the opinions of treating physicians Drs. Lubens and Kalayjian, 25 seemingly in reaching the RFC determination. Reply at 4-6. Because these 26 arguments were not raised in the first instance in plaintiff’s Memorandum, they are waived. See Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (holding that 27 “arguments raised for the first time in a reply brief are waived”). 28 1 treating physician Dr. Kalayjian in deciding whether she met Listing 11.02(B) for 2 dyscognitive seizures. 3 At step three, the ALJ determines whether a claimant’s impairments, 4 individually or in combination, meets or equals a Listing. See 20 C.F.R. 5 §§ 404.1520(d), 416.920(d). An impairment meets a Listing if it meets all of the 6 criteria of a listed impairment. See 20 C.F.R. §§ 404.1525(d), 416.925(d); Sullivan 7 v. Zebley, 493 U.S. 521, 530, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990). An 8 impairment equals a Listing if the medical findings are equal in severity to all the 9 criteria of a listed impairment. See Sullivan, 493 U.S. at 531. The claimant has the 10 burden of proving he or she met or equaled a Listing. Hoopai v. Astrue, 499 F.3d 11 1071, 1074 (9th Cir. 2007). The claimant must set forth the evidence that would 12 support a finding he or she met or equaled a Listing. Burch, 400 F.3d at 683. 13 “An ALJ must evaluate the relevant evidence before concluding that a 14 claimant’s impairments do not meet or equal a listed impairment.” Lewis v. Apfel, 15 236 F.3d 503, 512 (9th Cir. 2001). The ALJ is not, however, required to discuss the 16 evidence supporting the step three determination in a “Step Three Findings” section 17 itself. Id. at 513. Instead, the ALJ can meet this requirement by discussing the 18 relevant evidence supporting the step three determination anywhere in the decision. 19 Id. 20 Listing 11.02 requires a finding of disability for an individual who has 21 epilepsy, which must be “documented by a detailed description of a typical seizure” 22 and characterized by one of the additional requirements in 11.02(A)-(D). Listing 23 11.02. Section 11.02(B) requires the individual have dyscognitive seizures 24 “occurring at least once a week for at least 3 consecutive months despite adherence 25 to prescribed treatment.” Listing 11.02(B) (citations omitted). 26 Here, the ALJ found that plaintiff’s dyscognitive seizures did not occur at the 27 frequency required by the Listing. AR at 20-21. Although the ALJ did not provide 28 1 any further explanation in that section, he described later in his decision how 2 plaintiff’s medical records preceding July 15, 2001 did not state the frequency of 3 her dyscognitive seizures. Id. at 22; see also Lewis, 236 F.3d at 513. As described 4 in greater detail below, those records reflect that plaintiff reported “funny feelings” 5 on four occasions between 1996 and 1998, but there is no information provided 6 about how regularly plaintiff felt those feelings. AR at 636, 639. As plaintiff 7 argues, Dr. Kalayjian’s medical source statement indicates that the funny feelings 8 plaintiff reported to Dr. Lubens from 1996 to 1998 were, in fact, dyscognitive 9 seizures. P Mem. at 7. Even so, Dr. Lubens’s records still do not indicate how 10 frequently the dyscognitive seizures occurred in order to establish plaintiff met the 11 strict requirements of the Listing. 12 The court would note that Dr. Kalayjian’s medical source statement from 13 September 2017 indicates that plaintiff’s seizures beginning in December 1990 met 14 Listing 11.02(C). AR at 844. Listing 11.02(C) refers to generalized tonic-clonic 15 seizures with an accompanying marked limitation, but Dr. Kalayjian appears to 16 exclusively discuss dyscognitive seizures. Id. Dr. Kalayjian stated that her finding 17 was based on Dr. Lubens’s records, which she found indicated that plaintiff had 18 dyscognitive seizures every few days. Id. Dr. Lubens’s medical records, however, 19 are inconsistent as to the frequency of plaintiff’s dyscognitive seizures. In a May 20 1991 report, Dr. Lubens stated that plaintiff’s seizures occurred every few days 21 since December 1990, which would meet the Listing 11.02(B) frequency. Id. at 22 657. But one month later, Dr. Lubens reported that plaintiff’s seizures occurred 23 every 14 days since December 1990, which would not meet the Listing 11.02(B) 24 frequency. Id. at 654. Therefore, these records do not provide substantial evidence 25 to find plaintiff met the strict requirements of Listing 11.02(B). 26 Finally, plaintiff contends the ALJ should have accounted for her testimony 27 that she experienced weird or funny feelings – later determined to be dyscognitive 28 1 seizures – several times a week prior to age 22. P Mem. at 7. But plaintiff’s 2 testimony alone, without supporting medical evidence, does not provide substantial 3 evidence to establish the frequency required to meet Listing 11.02(B). See 4 Hamilton v. Astrue, 2010 WL 3748744, at *7 (C.D. Cal. Sept. 22, 2010) (finding 5 that plaintiff’s self-reports of symptoms and functional limitations could not raise 6 the severity of her impairment to meet a Listing). 7 Accordingly, the ALJ did not err at step three in finding plaintiff’s seizures 8 did not meet or equal Listing 11.02(B). 9 C. The ALJ Did Not Offer a Clear and Convincing Reason for Discounting 10 Plaintiff’s Subjective Complaints 11 Plaintiff contends the ALJ failed to properly consider her subjective symptom 12 testimony, including her alleged symptoms of fatigue and side effects from her 13 medications. P. Mem. at 8-9. Specifically, plaintiff argues the ALJ did not provide 14 clear and convincing reasons for rejecting her testimony. Id. at 9. 15 Plaintiff testified at the administrative hearing that between the ages of 18 16 and 22, she reported to her doctor that she felt “weird,” which meant she felt dizzy, 17 she would fall, her arms and legs would fall asleep, she felt different tastes in her 18 mouth, she could not carry things and would drop things, and it was difficult for her 19 to walk. AR at 44-46. She testified that these feelings lasted from 30 minutes to 20 several hours, and would occur at least twice a week. Id. at 46, 48. 21 In high school, she would lie down until it went away. Id. at 44-45. In college, she 22 would sleep every day after class, and sometimes she could not go to class. Id. at 23 45-46. She reported that her doctors told her she always felt tired because of her 24 medication. Id. at 40. Plaintiff further testified that because of issues with her 25 balance, she tripped approximately 10 times a week and fell four times a week. Id. 26 at 50. She also testified that in college, she received accommodations because she 27 was slow taking tests and had trouble taking notes and understanding instructions 28 1 from her teachers. Id. at 47-48. 2 The ALJ must make specific credibility findings, supported by the record. 3 SSR 96-7p. To determine whether testimony concerning symptoms is credible, the 4 ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 5 (9th Cir. 2007). First, the ALJ must determine whether a claimant produced 6 objective medical evidence of an underlying impairment “‘which could reasonably 7 be expected to produce the pain or other symptoms alleged.’” Id. at 1036 (quoting 8 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there 9 is no evidence of malingering, an “ALJ can reject the claimant’s testimony about 10 the severity of her symptoms only by offering specific, clear and convincing 11 reasons for doing so.” Smolen, 80 F.3d at 1281; accord Benton v. Barnhart, 331 12 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider several factors in weighing 13 a claimant’s testimony, including: (1) ordinary techniques of credibility evaluation 14 such as a claimant’s reputation for lying; (2) the failure to seek treatment or follow 15 a prescribed course of treatment; and (3) a claimant’s daily activities. Tommasetti 16 v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. 17 At the first step, the ALJ found plaintiff’s medically determinable 18 impairments could reasonably be expected to cause some of the symptoms alleged. 19 AR at 22. At the second step, because the ALJ did not find any evidence of 20 malingering, the ALJ was required to provide clear and convincing reasons for 21 discounting plaintiff’s testimony. Here, the only reason provided by the ALJ for 22 discrediting plaintiff’s subjective symptom testimony was that it was not supported 23 by the objective medical evidence. Id. 24 The ALJ solely identified plaintiff’s testimony that “she felt weird, she fell, 25 her arms/legs felt like they were asleep, she felt dizzy, she had different tastes in her 26 mouth, and she couldn’t carry things and dropped things,” and he did not discuss 27 the entirety of plaintiff’s subjective complaints, including her complaints of fatigue 28 1 and medication side effects. Id. at 22. The ALJ found that the identified testimony 2 concerning the intensity, persistence, and limiting effects of her seizure symptoms 3 was not consistent with the treatment notes from Dr. Lubens, plaintiff’s treating 4 physician. Id. In doing so, the ALJ noted that Dr. Lubens’s records reflect that 5 plaintiff only reported a few seizures prior to age 22. She reported “funny feelings” 6 in a progress note dated April 4, 1997, one seizure on February 10, 1998, and 7 another seizure in a progress note dated May 13, 1998. Id. Thereafter, in progress 8 notes beginning May 1998 through June 2001, the ALJ noted that plaintiff did not 9 report any further seizures, and Dr. Lubens stated on June 13, 2001 that plaintiff’s 10 seizure disorder remained inactive. Id. Further, the ALJ found that even if the 11 “funny feelings” reported by plaintiff were in fact dyscognitive seizures, the 12 medical records only reflect one instance of plaintiff reporting such feelings 13 between April 4, 1997 and June 13, 2001. Id. 14 Plaintiff’s medical records prior to July 15, 2001 are limited and at times 15 illegible, but the court agrees with the ALJ that plaintiff’s symptom testimony is not 16 fully corroborated by the objective medical evidence. The ALJ appears to focus on 17 records from the time plaintiff was age 18 to 22, but then he relied on Dr. Lubens’s 18 progress notes beginning on April 4, 1997, prior to plaintiff turning age 18, in 19 finding that the medical records do not support her testimony. Id. at 22. In fact, Dr. 20 Lubens’s medical records reflect three instances of plaintiff reporting funny or 21 strange feelings prior to her turning 18 – on September 10, 1996, December 3, 22 1996, and April 4, 1997 – and one instance after she turned 18, on May 18, 1998. 23 Id. at 636, 639. The ALJ correctly found, however, that plaintiff’s reports of 24 seizures and funny feelings do not document the frequency of the seizures. Id. at 25 22. Nor do the records reflect any of the symptoms plaintiff alleged from these 26 seizures. Id. 27 Plaintiff argues that the Commissioner ignored the March 7, 2018 letter by 28 1 Dr. Lubens submitted to the Appeals Council after the administrative hearing. P. 2 Mem. at 10-11. In the letter, Dr. Lubens stated that plaintiff had episodes of funny 3 feelings, or focal seizures, that were never controlled and at times caused plaintiff to 4 experience tingling in her left hand and arm. AR at 849. The Commissioner did 5 not err in reviewing this additional evidence. Dr. Lubens’s statement only 6 minimally supports the symptoms alleged by plaintiff and does not indicate how 7 often plaintiff experienced these seizures. Id. As such, the objective medical 8 evidence does not corroborate the extent of limitations claimed by plaintiff. 9 Nevertheless, the lack of corroborating objective medical evidence is not, by 10 itself, a clear and convincing reason for discounting plaintiff’s testimony. See 11 Robbins v. SSA, 466 F.3d 880, 883 (9th Cir. 2006) (“While an ALJ may find 12 testimony not credible in part or in whole, he or she may not disregard it solely 13 because it is not substantiated affirmatively by objective medical evidence.”). 14 Although a lack of objective medical evidence can be one factor in evaluating 15 credibility, the ALJ was required to put forth additional reasons for rejecting 16 plaintiff’s testimony for his findings to be supported by substantial evidence. See 17 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (finding that a lack of 18 corroborative objective medicine may be one factor in evaluating credibility). The 19 ALJ failed to do so here. 20 Defendant argues that the ALJ properly discredited plaintiff’s testimony 21 because he found a lack of objective evidence establishing the frequency of her 22 seizures or physical limitations, a lack of supporting evidence regarding claims of 23 fatigue or side effects from medication, her treatment was effective, and she was 24 able to engage in a variety of activities. D. Mem. at 9. These arguments are not 25 persuasive. With the exception of a lack of objective evidence regarding the 26 frequency of her seizures, the reasons alleged by defendant were not put forth by 27 the ALJ. The court is constrained to review only the reasoning asserted by the ALJ 28 1 and cannot consider post hoc reasoning by defendant. See Connett v. Barnhart, 340 2 F.3d 871, 874 (9th Cir. 2003) (noting that a reviewing court “is constrained to 3 review the reasons the ALJ asserts” and finding error where the court affirmed the 4 ALJ’s decision “based on evidence that the ALJ did not discuss”). 5 First, the ALJ never addressed plaintiff’s complaints of fatigue from her 6 seizures and medications prior to July 15, 2001; his only discussion of her fatigue 7 and medication side effects occurred in finding functional limitations after July 23, 8 2015. See AR at 22-23. Second, the ALJ found plaintiff’s mental impairments 9 were not severe because of her daily activities, but he did not find that her daily 10 activities undermined the many physical symptoms she claimed as a result of her 11 seizures, which is the only testimony the ALJ specifically discredited. See id. at 20 12 (“Based on the evidence in the record and the testimony of the claimant, it appears 13 that she engaged in daily activities consistent with a good ability to understand, 14 remember, apply information, concentrate, persist, maintain pace, adapt and manage 15 oneself and demonstrates good social functioning.”). Finally, the ALJ never 16 discussed plaintiff’s treatments for her seizures, nor their effectiveness, prior to July 17 15, 2001. See id. at 22. At most, the ALJ described plaintiff’s reported 18 improvements in her seizures between 1998 and 2001, but the ALJ did not credit 19 plaintiff’s effective treatment as the reason for this improvement. Id. 20 Accordingly, because the ALJ only relied on a lack of corroborating 21 objective medical evidence, the ALJ failed to provide a clear and convincing reason 22 supported by substantial evidence for discounting plaintiff’s subjective complaints. 23 V. 24 REMAND IS APPROPRIATE 25 The decision whether to remand for further proceedings or reverse and award 26 benefits is within the discretion of the district court. McAllister v. Sullivan, 888 27 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 28 1 discretion to direct an immediate award of benefits where: “(1) the record has been 2 fully developed and further administrative proceedings would serve no useful 3 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 4 evidence, whether claimant testimony or medical opinions; and (3) if the improperly 5 discredited evidence were credited as true, the ALJ would be required to find the 6 claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 7 2014) (setting forth three-part credit-as-true standard for remanding with 8 instructions to calculate and award benefits). But where there are outstanding 9 issues that must be resolved before a determination can be made, or it is not clear 10 from the record that the ALJ would be required to find a plaintiff disabled if all the 11 evidence were properly evaluated, remand for further proceedings is appropriate. 12 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 13 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 14 further proceedings when, even though all conditions of the credit-as-true rule are 15 satisfied, an evaluation of the record as a whole creates serious doubt that a 16 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 17 Here, remand is required to resolve outstanding issues, including the effect of 18 plaintiff’s cerebral palsy on her RFC, and the extent to which plaintiff’s subjective 19 complaints should be credited and considered in determining her RFC. On remand, 20 the ALJ shall reconsider the entirety of plaintiff’s testimony, and either credit her 21 subjective complaints or provide clear and convincing reasons for rejecting them. 22 The ALJ shall then reassess plaintiff’s RFC in light of all of the medical evidence 23 and opinions, and proceed through steps four and five to determine what work, if 24 any, plaintiff was capable of performing. 25 VI. 26 RECOMMENDATION 27 IT IS THEREFORE ORDERED that Judgment shall be entered 28 1 | REVERSING the decision of the Commissioner denying benefits, and 7 || REMANDING the matter to the Commissioner for further administrative action 3 || consistent with this decision. 4 5 || DATED: November 23, 2020 LRP 6 SHERIPYM ——— 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18