Lopez v. Kijakazi

• Court: District Court, S.D. California
• Decided: October 20, 2023
• Docket: 3:23-cv-00420
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MODESTA L., Case No.: 23-cv-420-KSC

12 Plaintiff, ORDER REVIEWING FINAL 13 v. DECISION OF THE COMMISSIONER OF SOCIAL 14 KILOLO KIJAKAZI, Acting SECURITY Commissioner of Social Security, 15 Defendant. 16

21 Plaintiff filed this action challenging the final decision of the Commissioner of 22 Social Security denying plaintiff’s claim for benefits. Doc. No. 1. This Court directed the 23 parties to explore informal resolution of the matter through the meet-and-confer process, 24 but the parties were unable to resolve the case on their own. Doc. Nos. 10, 11. Having 25 independently reviewed the parties’ briefing and the Administrative Record (“AR”), the 26 Court VACATES the decision of the Commissioner in this matter and REMANDS for 27 further proceedings. 28 1 I. BACKGROUND 2 Plaintiff, represented by counsel, appeared before an Administrative Law Judge 3 (“ALJ”) for de novo review of the Social Security Commissioner’s decision to deny 4 plaintiff’s claim for benefits. See generally AR 13-34.1 Plaintiff’s attorney and the ALJ 5 both examined plaintiff at the hearing, and the ALJ received testimony from a vocational 6 expert. See id. After reviewing the documentary evidence in the record and hearing the 7 witnesses’ testimony, the ALJ ultimately concluded plaintiff was not disabled. AR 28. 8 The ALJ’s decision followed the five steps prescribed by applicable regulations 9 under which the ALJ must sequentially determine (1) if the claimant is engaged in 10 substantial gainful employment; (2) whether the claimant suffers from a “severe” 11 impairment; (3) if any impairment meets or is medically equal to one of the impairments 12 identified in the regulatory Listing of Impairments; (4) the claimant’s residual functional 13 capacity (“RFC”) and whether the claimant could perform any past relevant work; and (5) 14 whether a claimant can make an adjustment to other work based on his or her RFC. See 20 15 C.F.R. § 404.1250(a)(4); AR 20-21. The ALJ’s evaluation ends if at any individual step 16 the ALJ finds the claimant is or is not disabled. See 20 C.F.R. § 404.1250(a)(4). 17 The ALJ made a threshold finding plaintiff met the insured status requirements 18 through December 31, 2025. AR 21. At step one, the ALJ found plaintiff had not engaged 19 in any substantial gainful activity between the alleged onset of disability and the hearing. 20 Id. At step two, the ALJ found plaintiff had three severe impairments: “osteoarthritis of 21 bilateral knees, cirrhosis of the liver secondary to nonalcohol steatohepatitis, [and] morbid 22 obesity.” Id. The ALJ noted a host of non-severe physical and mental impairments. AR 21- 23 23. At step three, the ALJ found none of plaintiff’s impairments, alone or in combination, 24 met or exceeded the listings of 20 CFR Part 404, Subpart P, Appendix 1. AR 23. 25

26 27 1 All citations to “AR” are to the Administrative Record in this matter [Doc. No. 11], and are paginated accordingly. Any other citations to the Court’s docket will reflect 28 1 At step four, the ALJ found plaintiff “had the residual functional capacity to perform 2 light work as defined in 20 CFR 404.1567(b)” except plaintiff could only “occasionally 3 climb ramps or stairs” and “kneel, crouch, or crawl,” but could “never climb ladders, ropes, 4 or scaffolds.” AR 24. The ALJ concluded plaintiff could perform past work as a sales 5 person or house cleaner. AR 28. Accordingly, the ALJ found plaintiff was not disabled 6 from the alleged date of onset and the date of the ALJ’s decision. Id. The Commissoner’s 7 decision to deny plaintiff’s benefits claim became final on January 13, 2023, when the 8 Social Secutiy Appeals Counsel denied plaintiff’s request to review the ALJ’s decision. 9 See AR 1-8. This appeal followed. 10 II. DISPUTED ISSUES 11 Plaintiff raises only a single issue in this appeal. Doc. No. 13 at 3. She argues the 12 ALJ failed to articulate specific, clear, and convincing reasons for rejecting plaintiff’s 13 symptom testimony. Id. 14 III. STANDARD OF REVIEW 15 This Court will affirm the ALJ’s decision if (1) the ALJ applied the correct legal 16 standards; and (2) the decision is supported by substantial evidence. See Batson v. Comm’r 17 of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under the substantial 18 evidence standard, the Commissioner's findings are upheld if supported by inferences 19 reasonably drawn from the record, and if there is evidence in the record to support more 20 than one rational interpretation, the Court will defer to the Commissioner. Id. 21 Even if the ALJ makes an error, this Court can nonetheless affirm the denial of 22 benefits if such error was “harmless, meaning it was ‘inconsequential to the ultimate 23 nondisability determination.’” Ford, 950 F.3d at 1154 (quoting Tommasetti, 533 F.3d 24 1035, 1038 (9th Cir. 2008). The Court’s ability to uphold the ALJ’s decision is limited in 25 that this Court may not make independent findings and therefore cannot uphold the 26 decision on a ground not asserted by the ALJ. See Stout v. Comm’r of the Soc. Sec. Admin., 27 454 F.3d 1050, 1054 (9th Cir. 2006). 28 //// 1 IV. ANALYSIS OF THE COMMISSIONER’S DECISION 2 Plaintiff claims only one error: the ALJ erroneously discounted plaintiff’s subjective 3 symptom testimony. See generally Doc. No. 13 at 3-8. When a Social Security claimant 4 presents objective medical evidence of an underlying impairment that might reasonably 5 produce the complained-of symptoms, and the ALJ does not find evidence of malingering, 6 the ALJ can only reject the claimant’s testimony about the severity of those symptoms for 7 “specific, clear, and convincing reasons.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 8 2020) (citing Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015)). The “‘clear 9 and convincing’ standard requires an ALJ to show his work.” Smartt. v. Kijakazi, 53 F.4th 10 489, 499 (9th Cir. 2022). “The standard isn't whether [this] court is convinced, but instead 11 whether the ALJ's rationale is clear enough that it has the power to convince.” Id. At the 12 same time, the ALJ may not merely provide a summary of record evidence and a boilerplate 13 conclusion that plaintiff’s testimony is generally inconsistent with objective medical 14 evidence. Lambert, 980 F.3d 1266 at 1277. Rather, the ALJ must identify specific 15 testimony he or she finds not credible and “link that testimony to parts of the record 16 supporting” the negative credibility assessment. Brown-Hunter, 806 F.3d 487. 17 The record shows plaintiff’s subjective testimony established the following 18 symptoms that she claims impacted her ability to work: headaches, fatigue, sleeplessness, 19 pain in her knees causing an inability to stand for more than five minutes at a time and an 20 inability to walk for more than ten minutes at a time, an inability to crouch or bend over 21 because of abdominal pain caused by her cirrhosis, and an inability to lift more than three 22 or four pounds with either arm. See AR 41-43, 359, 363. The ALJ devoted considerable 23 effort to rebutting plaintiff’s complaints about knee pain. See AR 25-26. Although the ALJ 24 addressed plaintiff’s cirrhosis, he did so in a generalized sense, and he made no effort to 25 identify which of the specific symptoms caused by plaintiff’s cirrhosis were negated by 26 other evidence in the record. AR 26-27. In fact the ALJ generally failed to identify or 27 address plaintiff’s sleeplessness, fatigue, headaches, abdominal pain, and inability to lift 28 more than three or four pounds. Case law requires the ALJ to identify specifically which 1 subjective testimony he finds not credible and then explain, with reference to evidence in 2 the record, why that particular testimony is not credible. See Lambert, 980 F.3d 1266 at 3 1277; Brown-Hunter, 806 F.3d at 489. The Court finds most problematic the ALJ’s failure 4 to address plaintiff’s testimony about being unable to lift more than three or four pounds 5 because lifting up to 20 pounds is called for by the regulations that define the “light work” 6 the ALJ concluded plaintiff could perform. See 20 C.F.R. § 404.1567(b). The ALJ also 7 needed, but failed, to explain why plaintiff’s fatigue and other symptoms of her cirrhosis 8 do not impact her ability to work. It is not enough to conclude plaintiff can work because 9 because she is apparently not dying from her condition. The Court concludes the ALJ erred 10 by failing to account for each item of plaintiff’s subjective symptom testimony. 11 Even the ALJ’s apparently fulsome assessment of plaintiff’s knee pain fell short: for 12 example, plaintiff testified her ability to walk was limited to no more than ten minutes, and 13 she could stand for no more than five. AR 42. The ALJ rejected this testimony because 14 there was evidence showing plaintiff was capable of walking and standing. See AR 25-26. 15 But the ALJ’s finding that plaintiff was capable of walking and standing for any length of 16 time whatsoever does not address the actual limitations identified by plaintiff’s testimony. 17 On remand, the ALJ must address not only plaintiff’s ability to stand and walk. He must 18 also address her ability to stand and walk long enough and well enough to work. See 19 Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (noting that being able to perform 20 some activites of daily living does not necessarily imply the ability to work). 21 The Court also notes the ALJ made an issue of the fact that plaintiff used an 22 interpreter at the hearing, while some evidence in the record suggested she could “speak 23 and understand English.” See AR 25. The parties dispute whether this amounted to the ALJ 24 making a negative credibility assessment against plaintiff. Compare Doc. No. 13 at 5-9 25 with Doc. No. 15 at 6-7. The ALJ’s decision is not clear on whether plaintiff’s use of an 26 interpreter factored into the ALJ’s credibility assessment. See AR 25. The “other evidence” 27 with which an ALJ assesses symptom-related functional limitations do not include using 28 an interpreter at the hearing. See 20 C.F.R. § 404.1529(c)(3). The Court doubts plaintiff’s 1 election to use an interpreter has any bearing on her credibility given the disdain for 2 impeachment through the use of collateral evidence not inherently probative of a witness’s 3 character for truthfulness. See Ortiz v. Yates, 704 F.3d 1026, 1038 (9th Cir. 2012). 4 Although the Court does not decide whether the ALJ in fact made such a credibility 5 determination in this case, the ALJ should, on remand, ensure his credibility determination 6 abides by the guidelines set forth in the applicable regulations, which do not include 7 plaintiff’s use of an interpreter as a factor bearing on the credibility of subjective symptom 8 testimony. 9 The parties dispute whether the matter should be remanded for further proceedings 10 or whether the Court should direct the Administration to award benefits under the “credit 11 as true” doctrine.” Compare Doc. No. 13 at 7-8 with Doc. No. 15 at 9-10. Under that 12 doctrine, the Court will remand for further proceedings if the Court harbors any serious 13 doubts the plaintiff is actually disabled. Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 14 2014). Multiple medical professionals opined plaintiff was capable of working. See, e.g., 15 AR 49-60, 62-79, 733, 740. Although these facts create serious doubts that plaintiff’s 16 subjective symptom testimony should be credited as true, the Court is constrained to 17 “review the reasons the ALJ asserts.” See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 18 2003). It is for the ALJ to determine in the first instance whether the record as a whole 19 sufficienly negates plaintiff’s subjective symptom testimony. Although the ALJ erred in 20 failing to specifically address plaintiff’s subjective symptom testimony, remand for an 21 award of benefits would be inappropriate here. 22 V. CONCLUSION 23 The final decision of the Commissioner is VACATED and the matter is 24 REMANDED for further proceedings consistent with this Order. The Clerk of Court is 25 directed to enter judgment in favor of plaintiff and close the case. The entry of judgment 26 will begin the running of the thirty-day period for which plaintiff, as the prevailing party, 27 may make a timely application for attorneys’ fees under the Equal Access to Justice Act. 28 See 28 U.S.C. § 2412(d)(1)(B); Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). 1 IT IS SO ORDERED 2 || Dated: October 20, 2023 yy “iy ). 3 Mf Ze □ A Hori. Karen 8S. Crawford ; United States Magistrate Judge

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