Oscar Ruben Arredondo v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: September 22, 2022
• Docket: 5:21-cv-01345
• Status: Unknown

Opinion

Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 1 of 20 Page ID #:1849

1 2

4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 OSCAR A.,1 Case No. EDCV 21-01345-KK 11 Plaintiff, 12 v. MEMORANDUM AND ORDER

13 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 14 Defendant. 15 16 17 Plaintiff Oscar A. (“Plaintiff”) seeks review of the final decision of the 18 Commissioner of the Social Security Administration (“Commissioner” or “Agency”) 19 denying his application for Title II Disability Insurance Benefits (“DIB”). The parties 20 have consented to the jurisdiction of the undersigned United States Magistrate Judge 21 pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Commissioner’s 22 decision is REVERSED and this action is REMANDED for further proceedings 23 consistent with this Order. 24 /// 25 /// 26 /// 27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 28 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 2 of 20 Page ID #:1850

1 I. 2 PROCEDURAL HISTORY 3 On July 2, 2014, Plaintiff filed an application for DIB, alleging a disability onset 4 date of September 18, 2007. Administrative Record (“AR”) at 229-30. Plaintiff’s 5 application was denied initially on August 25, 2014, id. at 103-14, and upon 6 reconsideration on January 9, 2015. Id. at 116-27. 7 Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). 8 Id. at 143-44. On July 12, 2017, Plaintiff appeared with counsel and testified at a 9 hearing before the assigned ALJ.2 Id. at 1235-63. A vocational expert also testified at 10 the hearing. Id. at 1257-61. On September 18, 2017, the ALJ issued a decision 11 denying Plaintiff’s application for DIB. Id. at 13-32. 12 Plaintiff requested that the Agency’s Appeals Council review the ALJ’s 13 decision. Id. at 226-27. On August 27, 2018, the Appeals Council denied Plaintiff’s 14 request for review. Id. at 1-6. 15 On October 24, 2018, Plaintiff filed an action in this Court seeking review of 16 the ALJ’s decision. Id. at 1293. On September 25, 2019, the Court reversed the 17 ALJ’s decision on the ground that the ALJ had not stated clear and convincing 18 reasons, supported by substantial evidence, for rejecting the opinion of examining 19 physician Dr. Leticia C. Amick (“Dr. Amick”). Id. at 1303-17. The Court, therefore, 20 remanded the action to the Agency for further administrative proceedings. Id. at 21 1302. 22 On remand, a different ALJ held a telephonic hearing on Plaintiff’s application 23 on April 29, 2021. Id. at 1193-1234. Plaintiff appeared with counsel and testified at 24 the hearing. Id. at 1195-1229. A vocational expert also testified at the hearing. Id. at 25 1229-32. On May 12, 2021, the ALJ issued a decision denying Plaintiff’s application. 26 2 The administrative record contains two transcripts of the hearing before the 27 ALJ – one dated July 12, 2017, AR at 1235-63, and one dated August 7, 2017, id. at 33-67, 1418-55. The parties agree that the hearing occurred on July 12, 2017. ECF 28 Docket No. 24, Joint Stipulation at 2 n.1. 2 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 3 of 20 Page ID #:1851

1 Id. at 1172-91. Because Plaintiff did not file written exceptions to the hearing 2 decision within thirty days of its issuance and the Appeals Council did not otherwise 3 assume jurisdiction of the matter within sixty days, the ALJ’s decision became the 4 final decision of the Commissioner. See ECF Docket No. (“Dkt.”) 1, Compl. ¶ 11; 20 5 C.F.R. § 404.984(d). 6 On August 10, 2021, Plaintiff filed the instant action. Dkt. 1, Compl. This 7 matter is before the Court on the parties’ Joint Stipulation (“JS”), filed on August 3, 8 2022. Dkt. 24, JS. 9 II. 10 PLAINTIFF’S BACKGROUND 11 Plaintiff was born on December 27, 1961, and his alleged disability onset date is 12 September 18, 2007. AR at 229. He was forty-five years old on the alleged disability 13 onset date, fifty-five years old at the time of the first hearing on his application for 14 DIB, and fifty-nine years old at the time of the second hearing. Id. at 229, 1195, 1242. 15 Plaintiff has a high school education. Id. at 1199. He also completed some junior 16 college units and training at a computer learning center in 1986. Id. at 264, 1199. 17 Plaintiff alleges disability based on carpal tunnel syndrome, sleep disorder, 18 hypertension, diabetes, anxiety, depression, and pain in his neck, shoulders, elbows, 19 and knees. Id. at 263, 1205, 1245-46. 20 III. 21 STANDARD FOR EVALUATING DISABILITY 22 To qualify for benefits, a claimant must demonstrate a medically determinable 23 physical or mental impairment that prevents her from engaging in substantial gainful 24 activity, and that is expected to result in death or to last for a continuous period of at 25 least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). The 26 impairment must render the claimant incapable of performing the work she 27 previously performed and incapable of performing any other substantial gainful 28 3 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 4 of 20 Page ID #:1852

1 employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 2 1098 (9th Cir. 1999). 3 To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ 4 conducts a five-step inquiry. 20 C.F.R. § 404.1520. The steps are: 5 1. Is the claimant presently engaged in substantial gainful activity? If so, the 6 claimant is found not disabled. If not, proceed to step two. 7 2. Is the claimant’s impairment severe? If not, the claimant is found not disabled. 8 If so, proceed to step three. 9 3. Does the claimant’s impairment meet or equal one of the specific impairments 10 described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is 11 found disabled. If not, proceed to step four.3 12 4. Is the claimant capable of performing work he has done in the past? If so, the 13 claimant is found not disabled. If not, proceed to step five. 14 5. Is the claimant able to do any other work? If not, the claimant is found 15 disabled. If so, the claimant is found not disabled. 16 See Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 17 953-54 (9th Cir. 2001); 20 C.F.R. § 404.1520(b)-(g)(1). 18 The claimant has the burden of proof at steps one through four, and the 19 Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. 20 Additionally, the ALJ has an affirmative duty to assist the claimant in developing the 21 record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets his 22 burden of establishing an inability to perform past work, the Commissioner must 23 show that the claimant can perform some other work that exists in “significant 24 numbers” in the national economy, taking into account the claimant’s residual 25 26 3 “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant’s [residual functional capacity],” or ability to work after accounting for his verifiable impairments. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 27 1222-23 (9th Cir. 2009) (citing 20 C.F.R. § 416.920(e)). In determining a claimant’s residual functional capacity, an ALJ must consider all relevant evidence in the record. 28 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 4 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 5 of 20 Page ID #:1853

1 functional capacity (“RFC”), age, education, and work experience. Tackett, 180 F.3d 2 at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 3 IV. 4 THE ALJ’S DECISION 5 A. STEP ONE 6 At step one, the ALJ found Plaintiff “did not engage in substantial gainful 7 activity during the period from October 20, 2010 through his date last insured of 8 March 31, 2013[.]”4 AR at 1175. 9 /// 10 /// 11

12 4 Plaintiff previously filed an application for DIB on July 25, 2008, alleging a disability onset date of September 17, 2007. AR at 86. The previously assigned ALJ 13 issued a post-hearing decision denying Plaintiff’s application on October 19, 2010. Id. at 86-97. 14 A final decision on a claimant’s prior application for disability benefits has res judicata effect as to the period adjudicated in that decision. Lyle v. Sec. of Health & 15 Hum. Servs., 700 F.2d 566, 568 (9th Cir. 1983). Here, the ALJ found the October 19, 2010 denial of Plaintiff’s prior DIB application had res judicata effect as to the period 16 adjudicated in that decision and properly considered only the period after the date of decision. AR at 1172. 17 In addition, when an ALJ has made a finding of nondisability on a claimant’s 18 prior application, a rebuttable presumption of continuing nondisability applies with respect to subsequent applications. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 19 1988). To overcome this presumption, the claimant must show “‘changed circumstances’ indicating a greater disability.” Id. (quoting Taylor v. Heckler, 765 20 F.2d 872, 875 (9th Cir. 1985)). Here, with respect to the period not adjudicated under Plaintiff’s previous 21 application, the ALJ stated “there has not been a showing of a changed circumstance material to the determination of disability and the presumption of continuing 22 nondisability has not been rebutted.” AR at 1173. Nonetheless, the ALJ did not adopt the previous ALJ’s findings in assessing Plaintiff’s RFC and, instead, found 23 Plaintiff had established limitations greater than those he had at the time of the prior denial. Compare AR at 1178 with AR at 90. It, therefore, appears the ALJ found 24 Plaintiff had demonstrated changed circumstances indicating greater disability. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (finding presumption of 25 nondisability rebutted by evidence of diagnosis of new impairment and evidence that previous impairment had become increasingly severe); Jerro v. Colvin, No. 2:15-CV- 26 03775-DFM, 2016 WL 3606773, at *3 (C.D. Cal. July 5, 2016) (reversing and remanding for further consideration because ALJ’s decision finding there were no 27 changed circumstances was not supported by substantial evidence). Hence, while neither party addresses the issue in the Joint Stipulation, it appears the presumption of 28 continuing nondisability is not applicable in this case. 5 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 6 of 20 Page ID #:1854

1 B. STEP TWO 2 At step two, the ALJ found Plaintiff had, through the date last insured, “the 3 following severe impairments: degenerative disc disease (DDD) of the cervical and 4 lumbar spine, left elbow arthritis, and depression[.]” Id. 5 C. STEP THREE 6 At step three, the ALJ found Plaintiff “did not have an impairment or 7 combination of impairments that met or medically equaled the severity of one of the 8 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]” Id. at 1176. 9 D. RFC DETERMINATION 10 The ALJ found Plaintiff had the following RFC: 11 [T]o perform light work as defined in 20 CFR 404.1567(b) except he can 12 occasionally climb ramps and stairs, but never climb ladders, ropes or 13 scaffolds; he can occasionally balance, stoop, kneel, crouch and crawl; he 14 can do no activity requiring power gripping bilaterally or reaching above 15 shoulder level; and he can do no more than simple, routine tasks. 16 Id. at 1178. 17 E. STEP FOUR 18 At step four, the ALJ found Plaintiff “was unable to perform any past relevant 19 work” through the date last insured. Id. at 1183. 20 F. STEP FIVE 21 At step five, the ALJ found “there were jobs that existed in significant numbers 22 in the national economy that [Plaintiff] could have performed,” including the jobs of 23 “routing clerk” and “outside delivery.” Id. at 1184. 24 The ALJ, therefore, concluded Plaintiff “was not disabled under sections 216(i) 25 and 223(d) of the Social Security Act through March 31, 2013, the last date insured.” 26 Id. at 1185. 27 /// 28 /// 6 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 7 of 20 Page ID #:1855

1 V. 2 PLAINTIFF’S CLAIMS 3 Plaintiff presents two disputed issues: (1) whether the ALJ properly considered 4 the opinion of examining physician Dr. Amick, and (2) whether the ALJ properly 5 considered Plaintiff’s subjective complaints.5 JS at 5, 17. 6 VI. 7 STANDARD OF REVIEW 8 Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner’s 9 final decision to deny benefits. The ALJ’s findings and decision should be upheld if 10 they are free of legal error and supported by substantial evidence based on the record 11 as a whole. Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 12 742, 746 (9th Cir. 2007). 13 “Substantial evidence” is evidence that a reasonable person might accept as 14 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 15 Cir. 2007). It is more than a scintilla but less than a preponderance. Id. To 16 determine whether substantial evidence supports a finding, the reviewing court “must 17 review the administrative record as a whole, weighing both the evidence that supports 18 and the evidence that detracts from the Commissioner’s conclusion.” Reddick, 157 19 F.3d at 720 (citation omitted); see also Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 20 2012) (stating that a reviewing court “may not affirm simply by isolating a ‘specific 21 quantum of supporting evidence’” (citation omitted)). “If the evidence can reasonably 22 support either affirming or reversing,” the reviewing court “may not substitute its 23 judgment” for that of the Commissioner. Reddick, 157 F.3d at 720-21; see also Terry 24 v. Saul, 998 F.3d 1010, 1013 (9th Cir. 2021) (“Importantly, even where the evidence 25 of record is susceptible to more than one rational interpretation, we must defer to the 26 5 The Court finds the second issue dispositive of this matter and thus declines to 27 address the remaining issue. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to reach 28 [Plaintiff’s] alternative ground for remand.”). 7 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 8 of 20 Page ID #:1856

1 Commissioner’s interpretation of the evidence.” (internal quotation marks and 2 citation omitted)). 3 The Court may review only the reasons stated by the ALJ in her decision “and 4 may not affirm the ALJ on a ground upon which [s]he did not rely.” Orn v. Astrue, 5 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only be considered 6 harmless if it is “clear from the record” that the error was “inconsequential to the 7 ultimate nondisability determination.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 8 885 (9th Cir. 2006) (citation omitted). 9 VII. 10 THE ALJ FAILED TO PROPERLY CONSIDER 11 PLAINTIFF’S SUBJECTIVE COMPLAINTS 12 A. RELEVANT FACTS 13 1. Plaintiff’s Statements Regarding His Symptoms 14 At the hearings before the ALJs,6 Plaintiff testified regarding the symptoms he 15 experienced through March 31, 2013, his date last insured. AR at 1204-16, 1218-24, 16 1227-29. Plaintiff stated he had daily pain in his neck, lower back, shoulders, elbows, 17 and knees. Id. at 1245-47. Plaintiff stated he felt pain and stiffness in his hands when 18 gripping or picking up objects as a result of his carpal tunnel syndrome. Id. at 1204, 19 1206, 1213, 1253. Plaintiff also testified he had difficulty remembering things and 20 staying focused. Id. at 1227-28, 1254-56. In addition, due to his depression, Plaintiff 21 stated he felt “very moody” and sometimes wanted “to shut off.” Id. 1215-16. 22 Plaintiff also testified about the effect of his symptoms on his daily activities. 23 Id. at 1204-06, 1208-10, 1212-14, 1218-22, 1224, 1247-51, 1253-54. For example, 24 Plaintiff stated he had difficulty completing household tasks such as cutting fruit or 25

26 6 An ALJ considers “all evidence in [the] case record,” including testimony from prior hearings, when determining whether a claimant is disabled. 20 C.F.R. 27 § 404.1520(a)(3); see also Banks v. Barnhart, 434 F. Supp. 2d 800, 808 (C.D. Cal. 2006) (affirming ALJ’s decision that claimant was not disabled when ALJ relied on 28 testimony of vocational expert from prior hearing). 8 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 9 of 20 Page ID #:1857

1 vegetables. Id. at 1205-06. He explained he “could sweep a little bit and vacuum a 2 little bit” and could do yard work for “a little bit of time” if there was “not a lot of 3 bending involved,” but after five to ten minutes of such tasks, he would need to take a 4 five-minute break to stretch his hands. Id. at 1212-14, 1218-19, 1224, 1253-54. 5 Plaintiff stated picking up a gallon of milk or lifting ten pounds caused him pain and 6 “stress on [his] elbow and [his] hand.” Id. at 1210, 1253. 7 Plaintiff estimated he could not stand for more than thirty to sixty minutes or 8 walk for more than thirty to forty-five minutes before needing a fifteen- to twenty- 9 minute break to stretch, due to his stiffness and pain. Id. at 1208-10, 1220-23. He 10 testified he used padding to sit upright, could not sit for more than thirty minutes at a 11 time, and would “usually” lie down at home. Id. at 1210, 1247. 12 2. The ALJ’s Rejection of Plaintiff’s Subjective Complaints 13 The ALJ rejected Plaintiff’s subjective complaints of physical impairment, 14 reasoning (1) Plaintiff’s daily activities during the period at issue “reflect a significant 15 functional capacity,” (2) Plaintiff received “mostly routine, conservative and non- 16 emergency treatment,” (3) Plaintiff’s symptoms “improve[d] with treatment,” and 17 (4) the medical record does not support the extent of the pain and limitations Plaintiff 18 has alleged.7 AR at 1179, 1181. 19 B. APPLICABLE LAW 20 If “the record establishes the existence of a medically determinable impairment 21 that could reasonably give rise to the reported symptoms, an ALJ must make a finding 22 as to the credibility[8] of the claimant’s statements about the symptoms and their 23 7 The ALJ also rejected Plaintiff’s subjective complaints of mental impairment, 24 reasoning his statements regarding his limitations are inconsistent with (1) the medical record, and (2) the level of activity indicated by his daily activities. AR at 1181. 25 Because the ALJ improperly rejected Plaintiff’s subjective complaints of physical impairment and this error was not harmless, the Court declines to address whether 26 the ALJ provided sufficient reasons for rejecting Plaintiff’s subjective complaints of mental impairment. 27 8 Social Security Ruling (“SSR”) 16-3p superseded SSR 96-7p and, in part, 28 eliminated use of the term “credibility” from Social Security Administration “sub- regulatory policy” in order to “clarify that subjective symptom evaluation is not an 9 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 10 of 20 Page ID #:1858

1 functional effect.” Robbins, 466 F.3d at 883 (citations omitted). The ALJ’s 2 determination regarding the plaintiff’s subjective complaints must be supported by 3 “findings sufficiently specific to permit the court to conclude that the ALJ did not 4 arbitrarily discredit claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 5 (9th Cir. 2008) (citation and internal quotation marks omitted). 6 The ALJ is required to engage in a two-step analysis. See Trevizo v. Berryhill, 7 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine whether the 8 claimant “has presented objective medical evidence of an underlying impairment 9 which could reasonably be expected to produce the pain or other symptoms alleged.” 10 Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)). If the claimant 11 meets the first step, and there is no evidence of malingering, “the ALJ can reject the 12 claimant’s testimony about the severity of his symptoms only by offering specific, 13 clear and convincing reasons for doing so.” Id. (quoting Garrison, 759 F.3d at 1014- 14 15). “The ALJ must state specifically which symptom testimony is not credible and 15 what facts in the record lead to that conclusion.” Smolen v. Chater, 80 F.3d 1273, 16 1284 (9th Cir. 1996); see also Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 17 2015) (holding “an ALJ does not provide specific, clear, and convincing reasons for 18 rejecting a claimant’s testimony by simply reciting the medical evidence in support of 19 his or her residual functional capacity determination”). 20 “If the ALJ’s credibility finding is supported by substantial evidence, [a court] 21 may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 22 2002). However, an ALJ’s failure to give specific, clear, and convincing reasons to 23 reject the claimant’s testimony regarding the severity of the symptoms is not harmless, 24 because it precludes the Court from conducting a meaningful review of the ALJ’s 25 reasoning. Brown-Hunter, 806 F.3d at 489. 26

27 examination of an individual’s [overall character or truthfulness] . . . [and] more closely follow [Social Security Administration] regulatory language regarding symptom 28 evaluation.” See SSR 16-3p, 2017 WL 5180304, at *1-*2, *10-*11. 10 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 11 of 20 Page ID #:1859

1 C. ANALYSIS 2 Here, the ALJ found “[Plaintiff]’s medically determinable impairments could 3 reasonably be expected to cause the alleged symptoms.” AR at 28. Hence, because 4 there is no evidence of malingering, the ALJ was required to provide “specific, clear, 5 and convincing reasons” to properly reject Plaintiff’s subjective complaints. Trevizo, 6 871 F.3d at 679. 7 As a preliminary matter, the ALJ did not identify which specific testimony she 8 rejected beyond conclusorily stating “[Plaintiff’s] statements concerning the intensity, 9 persistence and limiting effects of [his] symptoms are not entirely consistent with the 10 medical evidence and other evidence in the record.” AR at 1179. The ALJ’s failure to 11 link specific testimony from Plaintiff to particular parts of the record supporting her 12 rejection of Plaintiff’s subjective complaints was error. See Brown-Hunter, 806 F.3d 13 at 494 (“Because the ALJ failed to identify the testimony she found not credible, she 14 did not link that testimony to the particular parts of the record supporting her non- 15 credibility determination. This was legal error.”). In addition, as discussed below, the 16 ALJ failed to provide “specific, clear, and convincing reasons” for rejecting Plaintiff’s 17 subjective complaints of physical impairment. Trevizo, 871 F.3d at 679. 18 1. Daily Activities 19 The ALJ relied on Plaintiff’s daily activities in rejecting his subjective 20 complaints of impairment. AR at 1179. However, Plaintiff’s daily activities do not 21 constitute a convincing reason supported by substantial evidence for rejecting 22 Plaintiff’s subjective complaints. 23 Evidence of a plaintiff’s daily activities may be relevant to evaluating a 24 plaintiff’s subjective impairment testimony. See SSR 16-3p, 2016 WL 1119029, at *7; 25 see also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (holding that an ALJ can rely 26 on testimony about a claimant’s daily activities “to find a pain allegation incredible”). 27 For example, a plaintiff’s ability to engage in certain daily activities may be found to 28 be inconsistent with her testimony of disabling symptoms. See Orn, 495 F.3d at 639. 11 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 12 of 20 Page ID #:1860

1 However, “the mere fact that a plaintiff has carried on certain daily activities, such as 2 grocery shopping, driving a car, or limited walking for exercise, does not in any way 3 detract from her credibility as to her overall disability. One does not need to be 4 ‘utterly incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 5 1050 (9th Cir. 2001) (citation omitted). Moreover, “many home activities are not 6 easily transferable to what may be the more grueling environment of the workplace, 7 where it might be impossible to periodically rest or take medication.” Fair, 885 F.2d 8 at 603 (citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984)). The law does 9 not require Plaintiff to “vegetate in a dark room excluded from all forms of human 10 and social activity” to be eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 11 (9th Cir. 1987) (citation omitted). 12 Here, the ALJ found Plaintiff was able to “sweep, vacuum, do yard work, walk 13 the dog, rake[,] [] hold a shovel, walk to his sister’s house, take his mother to the store, 14 drive, watch television, take care of the dog, visit his brother, go to church 15 occasionally, use a computer to check email, and go to sporting events.” AR at 1179. 16 The ALJ, however, fails to account for the limited nature and extent of the daily 17 activities Plaintiff could perform. While Plaintiff testified he could sweep, vacuum, 18 and do yard work “a little bit,” he explained he could only use his hands for such tasks 19 for about five to ten minutes before needing a five-minute break to stretch his hands 20 due to pain and stiffness. Id. at 1212-13, 1218-20, 1253-54. While Plaintiff testified 21 he could walk the dog and walk to his sister’s house, he stated he only walked the dog 22 up to two blocks, round trip, and his sister’s house was just one block from his home. 23 Id. at 1214-15, 1223-24, 1250. He further explained he could not walk more than 24 thirty to forty-five minutes without taking a fifteen- or twenty-minute break to sit 25 down and stretch to relieve stiffness and joint pain. Id. at 1221-23. While Plaintiff 26 testified that he could drive, he also testified he could sit for no more than thirty 27 minutes, using padding such as a cushion or towel, and experienced fatigue and 28 difficulty staying focused when driving. Id. at 1210, 1247, 1251, 1256. While Plaintiff 12 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 13 of 20 Page ID #:1861

1 testified that he attended sporting events, “a lot of times [he] wouldn’t drive by 2 [him]self because it’s good to have somebody there” to drive if he became fatigued. 3 Id. at 1251. In addition, while Plaintiff indicated he attended church, he also stated he 4 did not go “as often as [he] should.” Id. 5 The ALJ fails to explain how any of Plaintiff’s limited daily activities are 6 inconsistent with Plaintiff’s claimed limitations. See Reddick, 157 F.3d at 722 7 (recognizing “disability claimants should not be penalized for attempting to lead 8 normal lives in the face of their limitations” and holding that “[o]nly if the level of 9 activity were inconsistent with Claimant’s claimed limitations would these activities 10 have any bearing on Claimant’s credibility”). Moreover, the ALJ does not discuss 11 how Plaintiff’s ability to perform limited, occasional, and brief activities transfers to 12 work activity beyond the conclusory statement that “the physical and mental 13 capabilities requisite to performing many of the tasks described [] as well as the social 14 interactions replicate those necessary for obtaining and maintaining employment.” 15 AR at 1179; see Fair, 885 F.2d at 603 (citing Gallant, 753 F.2d at 1453); see also Hicks 16 v. Colvin, No. 2:13-CV-09477-PLA, 2015 WL 1600419, at *10 (C.D. Cal. Apr. 9, 17 2015) (finding the amount of involvement Plaintiff described in activities, such as 18 volunteering at school, was minimal and the “ALJ does not explain how this level of 19 activity describes a person engaged in even basic work activity”). Ultimately, 20 Plaintiff’s admitted daily activities are not inconsistent with his allegation of disability. 21 See Vertigan, 260 F.3d at 1050 (“This court has repeatedly asserted that the mere fact 22 that a plaintiff has carried on certain daily activities, such as grocery shopping, driving 23 a car, or limited walking for exercise, does not in any way detract from her credibility 24 as to her overall disability.”). 25 Accordingly, because Plaintiff’s daily activities are not inconsistent with his 26 allegations of impairment, the ALJ’s reliance on Plaintiff’s daily activities does not 27 constitute a “specific, clear, and convincing reason[]” for rejecting Plaintiff’s 28 subjective complaints. Trevizo, 871 F.3d at 679. 13 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 14 of 20 Page ID #:1862

1 2. Conservative Treatment 2 In rejecting Plaintiff’s subjective complaints of impairment, the ALJ stated “the 3 claimant has received mostly routine, conservative, and non-emergency treatment.” 4 AR at 1179. Plaintiff’s allegedly conservative treatment, however, does not constitute 5 a convincing reason supported by substantial evidence for rejecting Plaintiff’s 6 subjective complaints. 7 The medical record demonstrates Plaintiff’s treatment for the pain in his 8 cervical and lumbar spine and upper and lower extremities was not conservative. The 9 treatment records from 2010 to 2013 show Plaintiff received prescription pain 10 medication, including naproxen (550 mg)9 and Norflex,10 trigger point injections, 11 cervical epidural steroid injections, and lumbar epidural steroid injections.11 Id. at 12 374-75, 380-81, 387, 398, 415-16, 422-23, 763-64, 770-71, 781-82, 784, 788, 797, 801, 13 804-05, 816, 821, 823, 867, 874-75, 877, 884, 892-93, 900-02, 905-06. Epidural steroid 14 injections are not conservative treatment. See Garrison, 759 F.3d at 1015 n.20 (“[W]e 15 doubt that epidural steroid shots to the neck and lower back qualify as ‘conservative’ 16 medical treatment.”). Courts have refused to characterize treatment plans like 17 Plaintiff’s consisting of not only epidural steroid injections but also prescription pain 18 medication as routine or conservative. See Christie v. Astrue, No. 2:10-CV-03448- 19 PJW, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (finding that while pain 20 treatment modalities such as narcotic pain medication and steroid injections “may not 21 be the most aggressive available, like surgery, for example, they are certainly not what 22

23 9 “Naprosyn (naproxen) is a nonsteroidal anti-inflammatory drug used to relieve pain, tenderness, swelling, and stiffness caused by arthritis, bursitis, tendinitis, and 24 pain from other causes.” Primero v. Astrue, No. 2:12-CV-01820-AJW, 2013 WL 394883, at *1 n.3 (C.D. Cal. Jan. 31, 2013). 25 10 “Norflex is a muscular analgesic given for the relief of discomfort associated 26 with acute, painful musculoskeletal conditions.” Minor v. Comm’r of Soc. Sec., 513 F. App’x at 417, 420 n.6 (6th Cir. 2013). 27 11 At the 2021 hearing before the ALJ, Plaintiff stated it has “been a while” since his treatment included prescription pain medication. AR at 1216-17. However, 28 Plaintiff used naproxen through his date last insured. See id. at 910. 14 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 15 of 20 Page ID #:1863

1 the Court would categorize as conservative”); Yang v. Barnhart, No. 5:04-CV-00958- 2 PJW, 2006 WL 3694857, at *4 (C.D. Cal. Dec. 12, 2006) (finding ALJ’s conclusion 3 that claimant received conservative treatment was not supported by substantial 4 evidence where the claimant was treated with several pain medications and received 5 epidural injections). 6 Accordingly, the ALJ’s claim that Plaintiff’s treatment was conservative does 7 not constitute a “specific, clear, and convincing reason[]” for rejecting Plaintiff’s 8 subjective complaints. Trevizo, 871 F.3d at 679. 9 3. Improvement with Treatment 10 The ALJ relied on her finding that Plaintiff had experienced “improvement 11 with treatment” in rejecting Plaintiff’s subjective complaints. AR at 1181. Plaintiff’s 12 alleged improvement with treatment, however, does not constitute a convincing 13 reason supported by substantial evidence for rejecting Plaintiff’s subjective 14 complaints, because the ALJ misrepresented the record. 15 The treatment records from 2010 to 2013 establish that Plaintiff experienced 16 some improvement after receiving epidural steroid injections. Id. at 374, 387, 397, 17 763, 783, 791-92, 795-96, 799-800, 804, 816, 821, 865, 873, 885, 892, 900. This 18 improvement, however, was limited. Despite treatment, Plaintiff continued to 19 experience “ongoing” “numbness,” “stiffness,” “tightness,” “decreased range of 20 motion,” and “pain” that was “aggravated” by activity. Id. at 374-75, 387, 397-98, 21 762-63, 769-70, 783, 791-92, 800, 804, 816-17, 821, 865-66, 874, 884-85, 892, 900, 22 904. In addition, the relief that Plaintiff experienced was “temporary,” lasting from 23 “one week” to “three to four months.” Id. at 375, 763, 791, 799-800. As the Ninth 24 Circuit has explained, “[c]ycles of improvement and debilitating symptoms are a 25 common occurrence, and in such circumstances it is error for an ALJ to pick out a 26 few isolated instances of improvement over a period of months or years and to treat 27 them as a basis for concluding a claimant is capable of working.” Garrison, 759 F.3d 28 at 1017 (citing Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)); see Guerra 15 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 16 of 20 Page ID #:1864

1 v. Berryhill, 448 F. Supp. 3d 1115, 1125 (D. Nev. 2020) (recognizing Garrison 2 addressed mental health symptoms but finding its principles equally applicable to 3 plaintiff with waxing and waning chronic pain, and finding ALJ improperly rejected 4 plaintiff’s testimony on the basis of periods of improved pain). In fact, “[o]ccasional 5 symptom-free periods—and even the sporadic ability to work—are not inconsistent 6 with disability.” Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995). 7 Accordingly, Plaintiff’s limited and temporary improvement with treatment is 8 not inconsistent with his subjective complaints of impairment and, therefore, does not 9 constitute a “specific, clear, and convincing reason[]” for rejecting Plaintiff’s 10 subjective complaints. Trevizo, 871 F.3d at 679. 11 4. Consistency with the Medical Record 12 Finally, the ALJ rejected Plaintiff’s subjective complaints based on perceived 13 inconsistencies with the medical record. AR at 1179-81. While it is proper for the 14 ALJ to consider the objective medical evidence in making a credibility determination, 15 20 C.F.R. § 404.1529(c)(2), “[t]he ALJ may not make a negative credibility finding 16 ‘solely because’ the claimant’s symptom/pain testimony ‘is not substantiated 17 affirmatively by objective medical evidence.’” Karen M. v. Saul, No. 2:20-CV-06202- 18 GJS, 2021 WL 1890785, at *4 (C.D. Cal. May 11, 2021) (quoting Robbins, 466 F.3d at 19 883). 20 As discussed above in Sections VII.C.1, VII.C.2, and VII.C.3, substantial 21 evidence does not support the ALJ’s reliance on Plaintiff’s daily activities, alleged 22 conservative treatment, or improvement with treatment as grounds for rejecting his 23 subjective complaints. Accordingly, without an additional sufficient basis for rejecting 24 Plaintiff’s subjective complaints, the ALJ could not have relied on inconsistencies in 25 the medical record alone. Id. 26 Moreover, substantial evidence does not support the ALJ’s finding that 27 Plaintiff’s subjective complaints of impairment are inconsistent with the objective 28 medical record. The ALJ found the evidence in the record established Plaintiff had “a 16 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 17 of 20 Page ID #:1865

1 significant ability to sit, stand, walk, lift and carry.” AR at 1181. The treatment 2 records from 2010 to 2013, however, show Plaintiff consistently reported his neck 3 pain was “aggravated” by activity, including “prolonged” sitting, walking, sleeping, 4 stretching, bending, standing, cleaning, and “other various movements in the course 5 of his activities of daily living.” Id. at 763, 770, 792, 796, 800, 804, 821, 866, 870, 874. 6 Plaintiff also consistently reported his back pain was “aggravated” by “prolonged 7 periods” of walking, sitting, driving, standing, bending, pushing, pulling, and lifting. 8 Id. at 387, 763, 766, 770, 792, 796, 800, 804, 821, 866, 870, 874, 900. In addition, 9 Plaintiff’s treating physicians regularly noted “decreased,” “limited,” or “painful” 10 range of motion in his neck and lower back. Id. at 375, 398, 784, 792, 796, 800, 804, 11 817, 822, 866, 870, 874, 884, 901, 905. 12 Therefore, the ALJ’s determination that the record established Plaintiff had “a 13 significant ability to sit, stand, walk, lift and carry,” and that Plaintiff’s subjective 14 complaints were, therefore, inconsistent with the medical record is not supported by 15 substantial evidence. Accordingly, the ALJ’s perceived inconsistencies with the 16 medical record do not constitute a “specific, clear, and convincing reason[]” for 17 rejecting Plaintiff’s subjective complaints. Trevizo, 871 F.3d at 679. 18 5. The ALJ’s Error Was Not Harmless 19 Finally, the ALJ’s error in rejecting Plaintiff’s subjective complaints was not 20 harmless, because it is not “clear from the record” that the error was “inconsequential 21 to the ultimate nondisability determination.” Robbins, 466 F.3d at 885 (citation 22 omitted). In fact, at the hearing before the ALJ, vocational expert Cathleen Spencer 23 testified that a person with Plaintiff’s vocational factors who required a ten-minute 24 break after every hour of work would not be able to perform “[a]ny full-time 25 competitive work” in the national economy. AR at 1231-32. Plaintiff alleged 26 limitations that require him to take significant breaks after five to ten minutes of 27 working with his hands and after thirty to sixty minutes of walking, standing, or sitting 28 upright. Id. at 1208-10, 1212-14, 1218-23. Based on this record, the Court cannot 17 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 18 of 20 Page ID #:1866

1 conclude the error in rejecting Plaintiff’s subjective complaints was harmless. See 2 Christopher G. v. Saul, No. 2:19-CV-06150-AFM, 2020 WL 2079972, at *7 (C.D. Cal. 3 Apr. 30, 2020) (finding the ALJ’s error in failing to include limitations on attendance 4 and completing a normal workday in RFC limitations was not harmless where 5 vocational expert testified “that an individual whose mental limitations caused him or 6 her to be unproductive for more than 10% of the workday would be unemployable”); 7 cf. Devery v. Colvin, No. 2:15-CV-08503-RAO, 2016 WL 3452487, at *5 (C.D. Cal. 8 June 22, 2016) (noting the ALJ’s erroneous failure to provide reasons for rejecting the 9 doctor’s opinions regarding claimant’s limitations in areas including the ability to 10 complete a normal workday and workweek was not harmless because the vocational 11 expert did not testify that a hypothetical person with those limitations could work). 12 Because the ALJ failed to properly consider Plaintiff’s subjective complaints, 13 the ALJ’s decision is not supported by substantial evidence and must be reversed. 14 VIII. 15 RELIEF 16 A. APPLICABLE LAW 17 “When an ALJ’s denial of benefits is not supported by the record, the proper 18 course, except in rare circumstances, is to remand to the agency for additional 19 investigation or explanation.” Hill, 698 F.3d at 1162 (citation omitted). “We may 20 exercise our discretion and direct an award of benefits where no useful purpose would 21 be served by further administrative proceedings and the record has been thoroughly 22 developed.” Id. (citation omitted). Courts have found further administrative 23 proceedings would serve no useful purpose when an ALJ previously failed to adhere 24 to the court’s order on remand. See King v. Sullivan, 757 F. Supp. 179, 188 25 (E.D.N.Y. 1991) (ordering payment of benefits because, on prior remand, “the ALJ 26 made it plain that he had no intention of making a good faith effort to comply with 27 the order”); Valente v. Sullivan, 897 F.2d 54, 58 (2d Cir. 1990) (ordering payment of 28 benefits when ALJ had “not followed a significant portion of our prior mandate” on 18 Case 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 19 of 20 Page ID #:1867

1 remand). “Remand for further proceedings is appropriate where there are 2 outstanding issues that must be resolved before a determination can be made, and it is 3 not clear from the record that the ALJ would be required to find the claimant disabled 4 if all the evidence were properly evaluated.” Hill, 698 F.3d at 1162 (citations omitted); 5 see also Reddick, 157 F.3d at 729 (“We do not remand this case for further 6 proceedings because it is clear from the administrative record that Claimant is entitled 7 to benefits.”). 8 B. ANALYSIS 9 The record has not been fully developed in this matter. The ALJ must properly 10 consider Plaintiff’s subjective complaints. If the ALJ decides Plaintiff’s subjective 11 complaints must again be rejected, the ALJ must provide sufficient reasons supported 12 by substantial evidence for making such a determination. The Court, therefore, does 13 not find that further administrative proceedings would serve “no useful purpose.”12 14 See Hill, 698 F.3d at 1162 (citation omitted). Accordingly, remand for further 15 proceedings is appropriate. 16

17 12 Plaintiff argues the Court should direct an award of benefits, rather than remand for further proceedings, because the Court previously reversed and remanded 18 the case based on the prior ALJ’s improper rejection of the opinion of examining physician Dr. Amick and, according to Plaintiff, “a different ALJ has again 19 demonstrated an unwillingness . . . to properly consider and apply” Dr. Amick’s opinion. JS at 13. The Court previously found the first ALJ wholly rejected Dr. 20 Amick’s opinion without clear and convincing reasons for doing so. See AR at 1309- 15. Plaintiff now alleges the second ALJ purported to give Dr. Amick’s opinion 21 “some weight” but nonetheless failed to incorporate Dr. Amick’s opinion into the ultimate RFC finding. See JS at 6. While the Court declines to decide whether the 22 second ALJ properly considered Dr. Amick’s opinion on remand, see supra note 5, even assuming the truth of Plaintiff’s allegations, the alleged error with the second 23 ALJ’s consideration of Dr. Amick’s opinion does not constitute a failure to comply with the Court’s prior remand order warranting reversal for payment of benefits, 24 because the second ALJ does not appear to have blatantly disregarded the remand order or deliberately refused to comply with the order. Cf. King, 757 F. Supp. at 182- 25 83, 188 (reversing for payment of benefits when, at hearing on remand, ALJ “expressed a blatant disregard for the remand order” and “did not act in good faith in 26 evaluating the evidence”); Ischay v. Barnhart, 383 F. Supp. 2d 1199, 1224 (C.D. Cal. 2005) (reversing for payment of benefits when ALJ “simply ignored” court’s 27 instructions on remand); Holst v. Bowen, 637 F. Supp. 145, 145-46 (E.D. Wash. 1986) (reversing for payment of benefits when ALJ “acknowledged the Court’s directions” 28 on remand but “deliberately refused to abide by such directions on the basis that the Court was wrong”). 19 Casé 5:21-cv-01345-KK Document 25 Filed 09/22/22 Page 20 of 20 Page ID #:1868

1 IX. 2 CONCLUSION 3 For the foregoing reasons, IT IS ORDERED that judgment be entered 4 | REVERSING the decision of the Commissioner and REMANDING this action for 5 | further proceedings consistent with this Order. IT IS FURTHER ORDERED that 6 | the Clerk of the Court serve copies of this Order and the Judgment on counsel for 7 | both parties.

9 | Dated: September 22, 2022 10 HONORABLE KENLY KTYA KATO 4 United States Magistrate Judge

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