Peters v. Kijakazi

• Court: District Court, S.D. California
• Decided: March 29, 2024
• Docket: 3:22-cv-01316
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JULIEANN P.,1 Case No.: 22-cv-1316-MMP

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 v. OPENING BRIEF

14 MARTIN O’MALLEY, [ECF No. 22] Commissioner of Social Security,2 15 16 Defendant. 17 18 Plaintiff Julieann P. (“Plaintiff”) appeals the final decision of the Commissioner of 19 Social Security denying her application for disability insurance benefits and supplemental 20 security income under Titles II and XVI, respectively, of the Social Security Act. [ECF 21 Nos. 1, 22.] Plaintiff brings her appeal pursuant to 42 U.S.C. § 405(g). Plaintiff filed an 22 23

24 25 1 In accordance with Civil Local Rule 7.1(e)(6)(b), the Court refers to all non-government parties by using their first name and last initial. 26

27 2 Martin O’Malley, the current Commissioner of Social Security, is automatically substituted as defendant for Kilolo Kijakazi, the former Acting Commissioner of Social 28 1 opening brief, to which Defendant responded. [ECF Nos. 22, 28.] No reply was filed. The 2 parties have consented to the undersigned for all purposes. [ECF No. 30.] 3 After a thorough review of the parties’ submissions, the administrative record, and 4 the applicable law, the Court REVERSES the final decision of the Commissioner of Social 5 Security dated December 1, 2021 and REMANDS for further administrative proceedings. 6 I. PROCEDURAL HISTORY 7 Plaintiff filed applications for a period of disability, disability insurance benefits, 8 and supplemental security income under Titles II and XVI of the Social Security Act. 9 Administrative Record (“AR”) 473–79, 502–11. In both applications, Plaintiff alleged 10 disability commencing on December 5, 2002. AR 473, 502. Plaintiff’s alleged impairments 11 include bilateral carpal tunnel syndrome, status post bilateral release, tendinitis of the 12 bilateral shoulders, status post left shoulder impingement surgery, and degenerative disc 13 disease of the cervical spine. [ECF No. 22 at 3.] The claims were denied initially on 14 February 9, 2011, and upon reconsideration on May 3, 2012. AR 248–53, 256–61. Plaintiff 15 filed a written request for a hearing on February 14, 2013. AR 264–65. 16 On June 16, 2015, the Administrative Law Judge Robert Iafe (“ALJ”) conducted a 17 hearing at which Plaintiff, represented by her attorney, appeared and testified, as well as 18 an impartial medical expert and vocational expert. AR 127–83. On September 19, 2015, 19 ALJ Iafe issued a partially favorable decision determining Plaintiff was not disabled prior 20 to December 1, 2012, but became disabled on that date due her age category change and 21 has continued to be disabled; however, the ALJ determined Plaintiff was not under a 22 disability at any time through December 31, 2008, the date last insured. AR 193; see AR 23 188–206. 24 Plaintiff requested Appeals Council review. AR 383–86. The Appeals Council 25 granted review, and on February 27, 2017, issued a decision affirming the ALJ’s finding 26 27 28 1 of disability beginning December 1, 2012 and vacating and remanding the decision with 2 respect to the issue of disability before December 1, 2012. AR 213; see AR 211–15. 3 On remand, the Commissioner again selected ALJ Iafe to preside over the matter. 4 AR 407–15. ALJ Iafe conducted a hearing on January 24, 2019, in which Plaintiff, 5 represented by counsel, as well as an impartial vocational expert testified. AR 86–126. The 6 ALJ held a supplemental telephonic hearing on November 9, 2021, to allow Plaintiff’s 7 representative to cross-examine the vocational expert regarding vocational interrogatories 8 the ALJ propounded. AR 28, 63–85. Plaintiff and her counsel appeared, and the impartial 9 vocational expert testified. AR 63–85. On December 1, 2021, the ALJ issued a decision 10 finding Plaintiff “was not disabled prior to November 30, 2012, but became disabled on 11 that date and has continued to be disabled” and further finding Plaintiff “was not under a 12 disability within the meaning of the Social Security Act at any time through December 31, 13 2008, the date last insured.” AR 31, 48–49. 14 Appeals Council review was denied on July 6, 2022. AR 1–6. Accordingly, the 15 ALJ’s decision dated December 1, 2021 is the final decision of the Commissioner of Social 16 Security. 17 II. SUMMARY OF ALJ’S FINDINGS 18 A. The Five-Step Evaluation Process 19 The ALJ follows a five-step sequential evaluation process in assessing whether a 20 claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Tackett v. Apfel, 180 F.3d 1094, 21 1098–99 (9th Cir. 1999). In the first step, the Commissioner must determine whether the 22 claimant is currently engaged in substantial gainful activity; if so, the claimant is not 23

24 25 3 The initial determination by the ALJ found Plaintiff’s age category changed on December 1, 2012. AR 28. The Appeals Council found Plaintiff’s age category changed on November 26 30, 2012, the day preceding the anniversary of her birth. AR 213, 28. On remand, the ALJ 27 subsequently “corrected the favorable portion of the prior decision to find an established onset date of November 30, 2012, the day before the claimant became 55 years of age.” 28 1 disabled, and the claim is denied. 20 C.F.R. § 404.1520(a)(4)(i) and (b); see also 20 C.F.R. 2 § 416.920(a)(4)(i) and (b). 3 If the claimant is not currently engaged in substantial gainful activity, the second 4 step requires the ALJ to determine whether the claimant has a “severe” impairment or 5 combination of impairments significantly limiting her ability to do basic work activities, 6 and which has lasted or is expected to last for a continuous period of at least twelve (12) 7 months; if not, the claimant is not disabled, and the claim is denied. 20 C.F.R. §§ 8 404.1520(a)(4)(ii) and (c), 404.1509 (setting forth the twelve (12) month duration 9 requirement); see also 20 C.F.R. §§ 416.920(a)(4)(ii) and (c), 416.909. If the claimant has 10 a “severe” impairment or combination of impairments, the third step requires the ALJ to 11 determine whether the impairment or combination of impairments meets or equals an 12 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart 13 P, appendix 1; if so, disability is conclusively presumed, and benefits are awarded. 20 14 C.F.R. § 404.1520(a)(4)(iii) and (d); see also 20 C.F.R. § 416.920(a)(4)(iii) and (d). 15 If the claimant’s impairment or combination of impairments does not meet or equal 16 an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation 17 process. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step requires the ALJ to 18 determine whether the claimant has sufficient residual functional capacity (“RFC”) to 19 perform her past work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Therefore, the 20 ALJ must determine the claimant’s RFC before moving to step four. 21 The RFC is “an assessment of an individual’s ability to do sustained work-related 22 physical and mental activities in a work setting on a regular and continuing basis.” Soc. 23 Sec. Ruling (“SSR”) 96-8p, 1996 WL 374184, at *1 (S.S.A. 1996). It reflects the most a 24 claimant can do despite her limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); SSR 25 96-8p, 1996 WL 374184, at *1 (“RFC is not the least an individual can do despite his or 26 her limitations or restrictions, but the most.”). An RFC assessment must include an 27 individual’s functional limitations or restrictions as a result of all of her impairments— 28 even those that are not severe—and must assess her “work-related abilities on a function- 1 by-function basis.” Id.; see 20 C.F.R. §§ 404.1545(a)(1)–(2) and (e), 416.945(a)(1)–(2) and 2 (e); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“[A]n RFC 3 that fails to take into account a claimant’s limitations is defective”). An RFC determination 4 must be based on “all the relevant evidence in [the] case record.” 20 C.F.R. §§ 5 404.1545(a)(1)–(3), 416.945(a)(1)–(3). A court must uphold an ALJ’s RFC assessment 6 when “the ALJ applied the proper legal standard and his decision is supported by 7 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). An ALJ 8 errs when he provides an incomplete RFC that ignores or discounts “significant and 9 probative evidence in the record favorable to [the plaintiff’s] position.” Hill v. Astrue, 698 10 F.3d 1153, 1161 (9th Cir. 2012). 11 At step four of the sequential process, if the ALJ determines a claimant has sufficient 12 RFC to perform past relevant work, the claimant is not disabled, and the claim is denied. 13 20 C.F.R. § 404.1520(a)(4)(iv) and (f)–(g); see also § 416.920(a)(4)(iv) and (f)–(g). 14 At step five, the burden then shifts to the ALJ to establish the claimant is not disabled 15 because there is other work existing in “significant numbers in the national economy” the 16 claimant can do, considering the claimant’s RFC, age, education, and work experience. 20 17 C.F.R. §§ 404.1560(c), 416.960(c); see also 20 C.F.R. §§ 404.1520(a)(4)(v) and (g)(1), 18 416.920(a)(4)(v) and (g)(1); see Hill, 698 F.3d at 1162. The ALJ usually meets this burden 19 either (1) by the testimony of a vocational expert who assesses the employment potential 20 of a hypothetical individual with all the claimant’s physical and mental limitations that are 21 supported by the record or (2) by reference to the Medical-Vocational Guidelines at 20 22 C.F.R. part 404, subpart P, appendix 2. Id. The determination of this issue comprises “the 23 fifth and last step” in the sequential analysis. 20 C.F.R. §§ 404.1520(a)(4)(v), 24 416.920(a)(4)(v). 25 B. The ALJ’s Application of the Five-Step Process 26 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 27 since December 5, 2002, the alleged onset date. AR 33 (citing 20 C.F.R. §§ 404.1571, 28 416.971). 1 At step two, the ALJ found since December 5, 2002, Plaintiff had the following 2 severe impairments: “bilateral carpal tunnel syndrome, status post bilateral release, 3 tendinitis of the bilateral shoulders, status post left shoulder impingement surgery, and 4 degenerative disc disease of the cervical spine.” Id. (citing 20 C.F.R. §§ 404.1520(c), 5 416.920(c)).4 The ALJ found Plaintiff had other medically determinable impairments that 6 were not severe, including “diabetes mellitus, major depressive disorder in partial 7 remission, anxiety, and various other acute medical issues such as mild hearing loss, TMJ 8 disorder, sinusitis, diverticulosis of the colon, and left wrist ganglion cyst.” Id. The ALJ 9 reasoned these impairments “established only a slight abnormality or a combination of 10 slight abnormalities that would have no more than a minimal effect on the claimant’s ability 11 to meet the basic demands of work activity and/or they do not meet the twelve-month 12 durational requirement.” Id. (citing 20 C.F.R. §§ 404.1521, 416.921 and SSR 85-28) 13 At step three, the ALJ found Plaintiff had “not had an impairment or combination of 14 impairments that meets or medically equals the severity of one of the listed impairments in 15 20 CFR Part 404, Subpart P, Appendix 1.” AR 37 (citing 20 C.F.R. §§ 404.1520(d), 16 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). In particular, the ALJ found the 17 “severity of the [Plaintiff’s] physical impairments, considered singly and in combination, 18 does not meet or medically equal the criteria of any listings, including 1.00 musculoskeletal 19 listings.” Id. 20 At step four, the ALJ found since December 5, 2002, Plaintiff had the RFC to 21 perform light work as defined in 20 C.F.R §§ 404.1567(b) and 416.967(b) except: 22 the claimant is limited to never crawling or climbing ladders, ropes or scaffolds; occasional climbing of ramps and stairs; frequently balancing, 23 stooping, kneeling, and crouching. She is also limited to occasional reaching 24 overhead with bilateral upper extremities and frequent reaching in all other directions with the bilateral upper extremities. She is limited to occasional 25

26 27 4 Plaintiff “stipulates that the ALJ fairly and accurately summarized the medical evidence of record, except as specified in the argument” and only disputes the ALJ’s evaluation of 28 1 handling, fingering, and feeling with skin receptors bilaterally. Lastly, the claimant must avoid exposure to extreme heat and cold, and workplace 2 hazards such as dangerous machinery and unprotected heights. 3 4 AR 37–38. 5 At step five, the ALJ found “[p]rior to November 30, 2012, the date the claimant’s 6 age category changed, considering the claimant’s age, education, work experience, and 7 residual functional capacity, there were jobs that existed in significant numbers in the 8 national economy that the claim could have performed.” AR 47 (citing 20 C.F.R. §§ 9 404.1.569, 404.1569a, 416.969, and 416.969a). 10 ALJ Robert Iafe determined Plaintiff “was not disabled prior to November 30, 2012, 11 but became disabled on that date and has continued to be disabled through the date of this 12 decision” and “was not under a disability within the meaning of the Social Security Act at 13 any time through December 31, 2008, the date last insured.” AR 48. 14 III. STANDARD OF REVIEW 15 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the 16 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed 17 only if “it is either not supported by substantial evidence or is based upon legal error.” 18 Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022) (quoting Luther v. Berryhill, 891 F.3d 19 872, 875 (9th Cir. 2018)). 20 The substantial-evidence standard requires a reviewing court to “look to the existing 21 administrative record and ask whether it contains sufficient evidence to support the 22 agency’s factual determinations.” Id. (citing Biestek v. Berryhill, 139 S. Ct. 1148, 1154 23 (2019)) (internal quotation marks omitted). Substantial evidence means “such relevant 24 evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek, 25 139 S. Ct. at 1154 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The 26 standard requires “more than a mere scintilla” of evidence, “but less than a preponderance.” 27 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). “Overall, the 28 standard of review is highly deferential.” Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 1 2023); see also Valentine, 574 F.3d at 690. Thus, “[w]here evidence is susceptible to more 2 than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” Woods, 32 3 F.4th at 788 (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). 4 The Court “must consider the entire record as a whole, weighing both the evidence 5 that supports and the evidence that detracts from the Commissioner’s conclusion, and may 6 not affirm simply by isolating a specific quantum of supporting evidence.” Garrison v. 7 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The ALJ is responsible for resolving conflicts 8 in medical testimony as well as any ambiguities in the record. Id.; see also Magallanes v. 9 Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Court will “review only the reasons 10 provided by the ALJ in the disability determination and may not affirm the ALJ on a ground 11 upon which he did not rely.” Garrison, 759 F.3d at 1010; see also Collings v. Saul, 856 F. 12 App’x 729, 730 (9th Cir. 2021). 13 The Court may also overturn the Commissioner’s denial of benefits if the denial is 14 based on legal error. Garcia v. Comm'r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014). 15 However, even if the Court finds the ALJ committed legal error, a court may not reverse 16 an ALJ’s decision if the error is harmless, “which exists when it is clear from the record 17 that the ALJ’s error was inconsequential to the ultimate nondisability determination.” Id. 18 at 932 (internal quotations and citation omitted); see also Burch, 400 F.3d at 679 (citation 19 omitted). 20 / / 21 / / 22 / / 23 / / 24 / / 25 / / 26 / / 27 / / 28 / / 1 IV. ANALYSIS 2 Plaintiff argues the ALJ did not properly evaluate Plaintiff’s symptom testimony. 3 [ECF No. 22 at 5.] 4 A. Plaintiff’s Testimony Regarding Her Hands and Wrists5 5 Plaintiff testified as to the alleged pain and limiting effects due to her hands and 6 wrist at both the June 16, 2015 and January 24, 2019 hearings. See AR 123–24, 144–46, 7 154–59. Plaintiff explained generally, when her wrists were straight, she did not experience 8 pain; however, even putting “a slight bend to it” triggers a “shock.” AR 157. Plaintiff 9 explained a “shock” felt like the nerves were “hitting something” followed by a burning 10 sensation. AR 123–24. At both hearings, Plaintiff testified she had experienced this pain 11 since at least 2002. AR 157, 123. Plaintiff testified she underwent surgeries of the carpal 12 tunnel in 2003 and 2004, and there were multiple attempts to manufacture braces for her 13 hands following the surgeries, but the braces caused her more pain. AR 145. Plaintiff 14 testified her condition worsened after the surgeries. AR 157, 145. 15 Plaintiff testified she could use her hands on a daily basis, but there were certain 16 things she could not do. AR 146–47, 154. According to Plaintiff, she received “shocks” 17 right away while using a laptop because it required her to bend her wrist. AR 155. As a 18 result, she testified she was able to use a laptop for less than one hour daily for checking 19 email or social media. AR 146. Plaintiff further testified she could dress herself but had 20 difficulty with buttons and experienced pain. AR 145. She also testified she could prepare 21 meals but required help from her son, who lived with her, to handle heavy pots and pans 22 and opens jars, which Plaintiff could not do. AR 155–56. In addition, Plaintiff testified she 23

24 25 5 The AR also includes two Disability Reports that appear to be submitted by Plaintiff. See AR 552–59 (Disability Report – Appeal dated November 9, 2011); AR 561–68 (Disability 26 Report – Appeal dated February 22, 2013). The latter one is not signed. See AR 568. 27 Neither of these reports, however, specifically address the time period before the date of last insured. Moreover, as discussed below, the ALJ did not cite or discuss either report in 28 1 could hold a plate for a minute but then had to set it down because her wrists went into a 2 spasm. AR 157. 3 B. The ALJ’s Evaluation 4 In discrediting Plaintiff’s subjective statements, the ALJ acknowledged Plaintiff 5 “alleged inability to work since December 5, 2002, due to pain and damage to 6 hands/wrists.” AR 38. The ALJ next found Plaintiff’s “statements about the intensity, 7 persistence, and limiting effects of her symptoms” were “partially inconsistent because the 8 lack of medical evidence to support the allegations.” Id. The ALJ explained “[t]he medical 9 evidence does not even begin until March 2009 and the treatment was effective in 10 controlling [Plaintiff’s] symptoms” and further found “[t]he medical evidence is consistent 11 with the opinion evidence, as explained below more fully.” Id. 12 After summarizing the medical evidence, the ALJ provided three reasons for 13 discrediting Plaintiff’s subjective statements. First, the ALJ concluded the objective 14 medical evidence and progress notes did not fully support or explain Plaintiff’s allegations 15 of the severity of her symptoms and resulting limitations, finding the imaging and 16 physician examination findings were consistent with “mild to moderate” pain severity 17 levels only. AR 43–44. The ALJ identified “a few inconsistencies that detract from 18 [Plaintiff’s] allegations of the severity of her symptoms and limitations” as follows: 19 At the 2015 hearing, the claimant testified that she walked a golf course daily, and the record indicates significant walking of up to three miles a day, which 20 the undersigned finds inconsistent with her allegations of disability but 21 consistent with her ability to perform the standing or walking requirements of light work activity, especially given the lack of gait disturbance, lower 22 extremity neurological deficits, and no assistive devices to ambulate. The 23 claimant also testified at the hearing that before the date last insured, she merely received some physical therapy treatment with massaging and no other 24 treatment was received before that time, which further supports a finding of 25 nondisability, especially before the date last insurance [sic]. 26 AR. 44. 27 Second, the ALJ also found “[d]espite [Plaintiff’s] allegations of disability during 28 the relevant period, she was able to complete a significant array of daily activities” 1 including “independently carrying for her own personal hygiene, taking care of her teenage 2 son, cooking and meal preparation, and cleaning, driving and running errands.” AR 44. 3 Finally, the ALJ found “despite allegations of disabling pain levels, the medications 4 received were not a large dosage of narcotic pain medicine and there was no evidence of 5 any significant medication side effects that would prevent her from performing the residual 6 functional capacity finding.” AR 44. 7 C. The Parties’ Arguments 8 Plaintiff argues the ALJ erred by: (1) failing to provide specific, clear and convincing 9 reasons to discount Plaintiff’s testimony; (2) failing to connect any of Plaintiff’s testimony 10 to the ALJ’s analysis of the objective medical records and to identify the other evidence in 11 the record; and (3) improperly considering Plaintiff’s activities of daily living. Plaintiff 12 contends the nature of these errors—in particular, the ALJ’s failure to connect any specific 13 portions of Plaintiff’s testimony to the parts of the record supporting the ALJ’s decision— 14 prevents the Court from determining whether substantial evidence supports the ALJ’s 15 decision, and Plaintiff’s testimony was not discredited arbitrarily. [ECF No. 22.] 16 Defendant maintains the ALJ’s rationale satisfies the clear and convincing standard. 17 [ECF No. 28.] 18 D. Applicable Law 19 The Ninth Circuit has established a two-step analysis for evaluating a claimant’s 20 subjective symptom testimony. Ferguson v. O'Malley, --- F.4th ----, 2024 WL 1103364, at 21 *3 (9th Cir. 2024); Zuniga v. Saul, 801 F. App’x 465, 466 (9th Cir. 2019) (citing Vaszquez 22 v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the 23 claimant has presented objective medical evidence of an underlying impairment ‘which 24 could reasonably be expected to produce the pain or other symptoms alleged.’” Garrison, 25 759 F.3d at 1014 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). 26 The claimant must only prove the impairment reasonably could be expected to produce 27 some degree of pain or other symptom; she is not required to prove the impairment 28 reasonably could be expected to produce the alleged severity or degree of pain or other 1 symptoms. See id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). 2 Moreover, the claimant is not required to produce “objective medical evidence of the pain 3 or fatigue itself, or the severity thereof.” Id. (citing Smolen, 80 F.3d at 1282). 4 If the claimant satisfies the first step “and there is no evidence of malingering, the 5 ALJ can only reject the claimant’s testimony about the severity of the symptoms if she 6 gives ‘specific, clear and convincing reasons’ for the rejection.” Zuniga, 801 F.App’x at 7 466 (quoting Lingenfelter, 504 F.3d at 1036). The Ninth Circuit has reiterated that “[t]his 8 is not an easy requirement to meet: ‘The clear and convincing standard is the most 9 demanding required in Social Security cases.’” Garrison, 759 F.3d at 1015 (quoting Moore 10 v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)); see Ferguson, --- F.4th 11 ----, 2024 WL 1103364, at *3. 12 Neither party contests the ALJ’s determination that Plaintiff has the following severe 13 impairments: bilateral carpal tunnel syndrome, status post bilateral release, tendinitis of the 14 bilateral shoulders, status post left shoulder impingement surgery and degenerative disc 15 disease of the cervical spine. AR 33. Neither party alleges Plaintiff was malingering, and 16 the record does not suggest as much. As a result, the Court must determine whether the 17 ALJ provided clear and convincing reasons for discounting Plaintiff’s subjective claims 18 regarding her symptoms. See Lingenfelter, 504 F.3d at 1036. 19 E. Analysis 20 The Court considers each reason the ALJ provided to discredit Plaintiff’s subjective 21 statements in turn. 22 1. Medical Evidence 23 The ALJ’s first reason for discounting Plaintiff’s subjective symptom testimony was 24 the medical evidence did not fully support Plaintiff’s alleged severity of her symptoms and 25 resulting limitations. AR 38, 43–44. Plaintiff argues “beyond the conclusory statements 26 that the objective evidence does not support the testimony, the ALJ nowhere connects any 27 of [Plaintiff’s] testimony to the ALJ’s analysis.” [ECF No. 22 at 9.] Plaintiff also contends 28 merely providing a summary of the medical evidence is insufficient to establish specific, 1 clear, and convincing reasons to discredit Plaintiff’s subjective symptom testimony. [Id.] 2 Plaintiff maintains the ALJ’s failure “to connect any specific portions of [Plaintiff’s] 3 testimony to the parts of the record supporting the ALJ’s decision prevents the Court from 4 determining whether the ALJ’s decision was supported by substantial evidence.” [Id.] 5 Defendant does not address this specific argument but contends generally the ALJ 6 “highlighted the relatively benign medical evidence during and after the relevant period 7 that were inconsistent with disabling symptom allegations” and provided various 8 examples. [ECF No. 28 at 6.] 9 The Ninth Circuit has consistently held the ALJ must specify the symptom testimony 10 that is discredited and what facts in the record undermine the testimony. See Smolen, 80 11 F.3d at 1284 (“The ALJ must state specifically which symptom testimony is not credible 12 and what facts in the record lead to that conclusion.”); Brown-Hunter v. Colvin, 806 F.3d 13 487, 489 (9th Cir. 2015) (“[W]e require the ALJ to specify which testimony she finds not 14 credible, and then provide clear and convincing reasons, supported by evidence in the 15 record, to support that credibility determination.”).6 “General findings are insufficient; 16 rather, the ALJ must identify what testimony is not credible and what evidence undermines 17 the claimant’s complaints.” Roberts v. Saul, 829 F. App’x 757, 760 (9th Cir. 2020) (quoting 18 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), superseded by regulation on other 19 grounds); see also Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020) (“Under our cases, 20 the ALJ must identify the specific testimony that he discredited and explain the evidence 21

22 23 6 On March 28, 2016, the Social Security Administration issued new guidance regarding how to evaluate a claimant’s subjective symptom testimony. See SSR 16-3p, 2016 WL 24 1119029 (Mar. 16, 2016); 2017 WL 5180304 (Oct. 25, 2017) (clarifying SSR 16-3p). 25 Additionally, effective March 27, 2017, the Social Security Administration updated the relevant agency regulations regarding how a claimant’s symptoms are evaluated. See 20 26 C.F.R. § 416.929. The Agency explained the purpose of the new guidance was to 27 “eliminat[e] the use of the term ‘credibility’ from our sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evaluation 28 1 undermining it.”). The ALJ’s findings must be “sufficiently specific to permit the court to 2 conclude that the ALJ did not arbitrarily discredit [Plaintiff’s] testimony.” Werlein v. 3 Berryhill, 725 F. App’x 534, 535 (9th Cir. 2018) (quoting Tommasetti v. Astrue, 533 F.3d 4 1035, 1039 (9th Cir. 2002)). 5 If the ALJ fails to meet these requirements for specificity, the Court is not free to fill 6 in the gaps. Lambert, 980 F.3d at 1278. It is exclusively within the ALJ’s province to 7 evaluate the claimant’s testimony. Id. Moreover, a court is “constrained to review the 8 reasons the ALJ asserts.” Id. (quoting Brown-Hunter, 806 F.3d at 494). 9 With respect to the medical records, the ALJ found “imaging did not fully explain 10 [Plaintiff’s] allegations of the severity of her physical symptoms” explaining “[a]lthough 11 she alleged disabling pain, the imaging discussed above showed findings of mild to 12 moderate severity” and “[i]maging confirmed some musculoskeletal disorders, but the 13 findings were consistent with the treatment [Plaintiff] received for these impairments with 14 some medication, injections, and physical therapy.” AR 43. The ALJ also found the 15 progress notes “consistently indicated relatively unremarkable physical examination 16 findings except for some subjective pain complaints in the neck, shoulders, and hands, and 17 reduction in shoulder range of motion, but no significant neurological deficits of the lower 18 extremities that would preclude the sitting, standing, or walking requirements of light 19 work.” AR 44. The ALJ continued, explaining he “included lifting/carrying, postural, 20 reaching, and manipulative limitations consistent with the clinical findings of bilateral 21 shoulder and hand symptoms and the opinion evidence discussed above” and “[t]here were 22 also no recommended restrictions placed on activity that would preclude performing the 23 residual functional capacity and no prescribed assistive devices for ambulation.” Id. 24 Additionally, Plaintiff “ambulated independently without the need for an assistive device.” 25 Id. Finally, the ALJ noted “[t]he physical examination findings were consistent with no 26 more than mild-to-moderate pain levels.” Id. 27 The Court finds, with the caveat of the two inconsistencies discussed below, the ALJ 28 failed to identify the specific testimony he discredited and explain the evidence 1 undermining such testimony. Notably, the ALJ did not identify or summarize Plaintiff’s 2 relevant testimony or subjective statements; nor did the ALJ expressly consider or cite 3 Plaintiff’s function reports.7 Though the ALJ acknowledged Plaintiff “alleged inability to 4 work since December 5, 2002, due to pain and damage to hands/wrists,” AR 38, and 5 Plaintiff “alleged disabling pain,” AR 43, at no point in his analysis did he identify the 6 specific subjective statements he discredited, particularly related to the alleged pain or 7 limiting effects of Plaintiff’s wrists and hands. See Treichler v. Comm’r of Soc. Sec., 775 8 F.3d 1090, 1103 (9th Cir. 2014) (recognizing the ALJ must “specifically identify the 9 testimony [from a claimant] she or he finds not to be credible”) (brackets in original) 10 (internal citations omitted); Lambert, 980 F.3d at 1277 (“We cannot review whether the 11 ALJ provided specific, clear, and convincing reasons for rejecting [the plaintiff’s] pain 12 testimony where, as here, the ALJ never identified which testimony she found not credible, 13 and never explained which evidence contradicted that testimony.”) (quoting Brown- 14 Hunter, 806 F.3d at 488–89); see also Patricia R. v. Kijakazi, No. 21-cv-1517, 2023 WL 15 112457, at *5 (S.D. Cal. Jan. 5, 2023) (“The ALJ was required to clearly identify each 16 subjective statement being rejected and the particular evidence in the record which 17 purportedly undermines the statement.”). The ALJ provided a relatively detailed overview 18 of Plaintiff’s medical history, but “providing a summary of medical evidence . . . is not the 19 same as providing clear and convincing reasons for finding the claimant’s symptom 20 testimony not credible.” Lambert, 980 F.3d at 1278 (alteration and emphasis in original) 21 (citations omitted).). 22 The only testimony identified in the ALJ’s analysis is regarding two alleged 23 “inconsistencies that detract from [Plaintiff’s] allegations of the severity of her symptoms 24 25 26 7 Although the ALJ referenced Plaintiff’s function report, finding the third-party function 27 report was a “reiteration of claimant’s function report, discussed above,” AR 46, the ALJ did not cite or discuss Plaintiff’s reports in his opinion or evaluation of Plaintiff’s 28 1 and limitations.” AR 44. The Ninth Circuit recently reiterated “[w]hen objective medical 2 evidence in the record is inconsistent with the claimant’s subjective testimony, the ALJ 3 may indeed weigh it as undercutting such testimony.” Smartt v. Kijakazi, 53 F.4th 489, 498 4 (9th Cir. 2022) (emphasis in original). “Thus, to satisfy the substantial evidence standard, 5 the ALJ must provide specific, clear, and convincing reasons which explain why the 6 medical evidence is inconsistent with the claimant’s subjective symptom testimony.” 7 Ferguson, --- F.4th ----, 2024 WL 1103364, at *4 (emphasis in original). Accordingly, the 8 Court must determine whether the ALJ satisfied this standard. 9 The ALJ identified the first inconsistency as follows: 10 At the 2015 hearing, the claimant testified that she walked a golf course daily, and the record indicates significant walking of up to three miles a day, which 11 the undersigned finds inconsistent with her allegations of disability but 12 consistent with her ability to perform the standing or walking requirements of light work activity, especially given the lack of gait disturbance, lower 13 extremity neurological deficits, and no assistive devices to ambulate. 14 15 AR 44. At the June 16, 2025 hearing, Plaintiff testified she walked a three-mile track 16 around the border of a golf course. AR 144–45. The ALJ does not explain, and it is unclear 17 to the Court, how Plaintiff’s testimony that she could walk up to three miles a day is 18 inconsistent with her allegations of disability, which the ALJ acknowledged was “alleged 19 inability to work since December 5, 2002, due to pain and damage to hands/wrists.” AR 20 38. Further, the general medical findings identified by the ALJ—“lack of gait disturbance, 21 lower extremity neurological deficits, and no assistive devices to ambulate”—have no 22 obvious relevance or connection to Plaintiff’s hands or wrists, and the ALJ does not 23 identify one. See AR 44. Though Defendant selectively identifies various statements in 24 Plaintiff’s Disability Reports in support of the ALJ’s analysis, such as Plaintiff “was unable 25 to stand for more than 15 minutes without pain” and spent “98% of the time” in her bed, 26 ECF No. 28 at 4, the ALJ did not identify such statements in his analysis. See Garrison, 27 759 F.3d at 1010 (The Court may “review only the reasons provided by the ALJ in the 28 disability determination and may not affirm the ALJ on a ground upon which he did not 1 rely.”); Brown-Hunter, 806 F.3d at 492 (courts are “constrained to review the reasons the 2 ALJ asserts”). Thus, the Court finds this example does not amount to a specific, clear, and 3 convincing reason to discredit Plaintiff’s testimony. 4 The ALJ also identified a second inconsistency, explaining: 5 [Plaintiff] also testified at the hearing that before the date last insured, she merely received some physical therapy treatment with massaging and no other 6 treatment was received before that time, which further supports a finding of 7 nondisability, especially before the date last insurance [sic].

8 AR 44. The ALJ, however, mischaracterizes Plaintiff’s testimony. At the January 24, 2019 9 hearing, Plaintiff testified the physical therapists massaged her, and no other treatment was 10 received from the physical therapists. See AR 102–03 (discussing physical therapist testing 11 and records, Plaintiff stated “You know what they did? They massaged me. They just 12 rubbed me. That’s all they did.”). Plaintiff unequivocally testified at the June 2015 hearing 13 she underwent wrist surgeries of the carpal tunnels in 2003 and 2004. AR 145, 159 (Q. 14 “And your surgeries were 2004 which certainly predates what we have for our date last 15 insured to be concerned about. A. “On the hands.”).8 Plaintiff also testified, following her 16 2003 and 2004 surgeries, there were multiple attempts to manufacture braces for her hands, 17 but the braces caused her “a lot more pain than they helped” her. AR 145. Thus, Plaintiff 18 did not testify no other treatment was received before the date of last insured, and the ALJ 19 erred in finding otherwise. 20 Substantial evidence does not support the inconsistencies identified by the ALJ; thus, 21 the ALJ’s stated reasons do not constitute specific, clear, and convincing reasons to 22 23 24 8 The ALJ acknowledged these surgeries earlier in his opinion: “[b]ased on a discussion in 25 the records, it appears as if the claimant underwent bilateral carpal tunnel release back in 2003 and 2004, for a median nerve entrapment of both hands.” AR 42. The ALJ further 26 recognized no medical records corroborated this fact as the medical records in the AR start 27 in March 2009. AR 42–43. Regardless, the reason the ALJ provided for the alleged inconsistency was Plaintiff testified no other treatment was received before the date last 28 1 discount Plaintiff’s subjective statements. Further, the ALJ did not identify any other 2 specific testimony that he discredited. Accordingly, the ALJ’s analysis does not satisfy the 3 clear and convincing standard that is required by the Ninth Circuit. See Smartt, 53 F.4th at 4 499 (“Ultimately, the ‘clear and convincing’ standard requires an ALJ to show his work”). 5 2. Activities of Daily Living 6 The ALJ’s second reason for discrediting Plaintiff’s subjective statements was 7 “[d]espite [her] allegations of disability during the relevant period, she was able to 8 complete a significant array of daily activities” namely “independently caring for her own 9 personal hygiene, taking care of her teenage son, cooking and meal preparation, and 10 cleaning, driving, and running errands.” AR 44. 11 “An ALJ may also consider ‘whether the claimant engages in daily activities 12 inconsistent with the alleged symptoms.’” Smartt, 53 F.4th at 499 (quoting Lingenfelter, 13 504 F.3d at 1040); see also Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (an ALJ may 14 discount a claimant’s testimony if the claimant’s daily activities contradict the testimony 15 or if the daily activities meet the threshold for transferable work skills). However, “[o]nly 16 if the level of activity [is] inconsistent with Claimant’s claimed limitations do daily 17 activities have any bearing on Claimant’s credibility.” See Ferguson, --- F.4th ----, 2024 18 WL 1103364, at *6 (quoting Reddick v. Chater, 157 F.3d. 715, 722 (9th Cir. 1998) (internal 19 quotation marks omitted)); see also Revels, 874 F.3d at 667 (“Though inconsistent daily 20 activities may provide a justification for rejecting symptom testimony, ‘the mere fact that 21 a plaintiff has carried on certain daily activities . . . does not in any way detract from her 22 credibility as to her overall disability.’”) (citation omitted)); Ghanim v. Colvin, 763 F.3d 23 1154, 1165 (9th Cir. 2014) (“Engaging in daily activities that are incompatible with the 24 severity of symptoms alleged” can be a reason to discredit a claimant’s testimony.). 25 Plaintiff argues her activities are “not so extensive on their own to clearly 26 undermine” her statements without further explanation. [ECF No. 22 at 13.] Defendant 27 contends the ALJ’s rationale related to when a claimant’s activities contradict other 28 1 testimony, and “[t]he fact that her activities contradicted the degree of limitation Plaintiff 2 alleged was sufficient to discount her claims.” [ECF No. 28 at 5.] 3 As noted above, the ALJ acknowledged Plaintiff’s alleged disability was based on 4 pain and damage in her hands and wrists. AR 38. Plaintiff testified she experienced pain 5 when her wrist was bent but not straight, and as a result, she could do some things but not 6 others due to pain. AR 156–57, 146, 154. With respect to the activities the ALJ identified, 7 Plaintiff testified she could dress herself but experienced pain with buttons, AR 145, and 8 could cook and prepare meals but required help from her son, who lived with her, to handle 9 heavy pots and pans and opens jars. AR 155–56. She indicated in her Disability Report 10 dated November 9, 2011 she could drive, but driving hurt, particularly when she rested her 11 hands on the wheel. AR 558.9 Plaintiff also indicated in a subsequent Disability Report she 12 could grocery shop, but her son had to push the cart for her. AR 566. She testified she also 13 held the grocery bag with her fingers to minimize pain to her hands. AR 156. 14 The ALJ identified certain of Plaintiff’s activities but did not explain how these 15 activities were inconsistent with Plaintiff’s testimony regarding her alleged disability— 16 pain in her wrists and hands. Nor did the ALJ address Plaintiff’s alleged limitations in 17 performing these activities. Moreover, the activities identified are basic chores, often 18 requiring the help of her son, who lived with Plaintiff. There is no indication the limited 19 activities Plaintiff engaged in, often with the help of her son, comprised a “substantial” 20 portion of her day or were “transferrable” to a work environment. See Ghanim, 763 F.3d 21 at 1165. Based on the ALJ’s stated rationale consisting of identifying the activities only 22 without further explanation, the Court cannot conclude such activities are inherently 23 inconsistent with Plaintiff’s testimony. See Revels, 874 F.3d at 667 (“A claimant does not 24 25 26 9 As noted above, it is unclear from the report itself if Plaintiff’s statements addressed the 27 time period prior to the date of last insured; however, the Court merely identifies Plaintiff’s subjective statements regarding the activities identified by the ALJ in considering whether 28 1 need to be utterly incapacitated in order to be disabled.”) (internal citation and quotation 2 marks omitted); Smolen, 80 F.3d at 1284 n.7 (“The Social Security Act does not require 3 that claimants be utterly incapacitated to be eligible for benefits, and many home activities 4 may not be easily transferrable to a work environment where it might be impossible to rest 5 periodically or take medication.”). As such, the Court cannot find the ALJ’s discrediting 6 of Plaintiff’s subjective statements based on the activities of daily living identified to be 7 clear and convincing. 8 3. Narcotic Pain Medicine 9 The ALJ’s third reason for discrediting Plaintiff’s subjective statements was “despite 10 allegations of disabling pain levels, the medications received were not a large dosage of 11 narcotic pain medicine and there was no evidence of any significant medication side effects 12 that would prevent her from performing the residual functional capacity finding.” AR 44. 13 Plaintiff does not challenge or address this reason in her briefing, but Defendant 14 argues “Plaintiff’s lack of aggressive treatment for her allegedly debilitating conditions 15 detracted from her claims.” [ECF No. 28 at 5.] Defendant further argues “[t]his is especially 16 so in light of her testimony that her limitations have existed since November 2001 and 17 ‘nothing has changed.’” [Id. (citing AR 157).] 18 The ALJ’s discounting of Plaintiff’s subjective statements due to the amount of 19 narcotic medication she received does not satisfy the clear and convincing standard in this 20 case. The Ninth Circuit has recognized “evidence of ‘conservative treatment’ is sufficient 21 to discount a claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 22 481 F.3d 742, 751 (9th Cir. 2007) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 23 1995)) (finding treatment of physical ailments with an over-the-counter pain medication 24 was conservative). With respect to narcotic pain medication in particular, district courts 25 have recognized “authority considering whether use of narcotic pain medication by itself 26 constitutes ‘conservative’ treatment goes both ways.” Fiona M. B. v. Kijakazi, No. 20-CV- 27 1250, 2022 WL 848332, at *2 (S.D. Cal. Mar. 22, 2022) (quoting Vuoso v. Colvin, No. CV 28 15-1255, 2016 WL 1071576, at *9 (C.D. Cal. Mar. 16, 2016)) (gathering cases); see also 1 Parker v. Saul, No. 20CV2530, 2022 WL 4798162, at *7 (S.D. Cal. Sept. 30, 2022) 2 (“Authority on whether narcotic pain medication alone constitutes conservative treatment 3 is inconsistent.”); Bostock v. Berryhill, No. 18-CV-02565, 2018 WL 5906174, at *4 (C.D. 4 Cal. Nov. 9, 2018) (citing string of cases). “When treatment is limited to nonnarcotic 5 medications and noninvasive therapies, the treatment is more likely to be considered 6 ‘conservative.’” Fiona M. B., 2022 WL 848332, at *2. “But, in general, the Ninth Circuit 7 and district courts within this circuit have viewed the use of narcotic pain medication as 8 non-conservative treatment, particularly when in conjunction with other treatments that 9 were also not conservative.” Bostock, 2018 WL 5906174, at *4 (citing, inter alia, 10 Lapeirre–Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010) (holding treatment 11 consisting of “copious” amounts of narcotic pain medication, occipital nerve blocks, and 12 trigger point injections was not conservative)). 13 Even if “not a large dosage of narcotic pain medicine” on its own could be 14 considered conservative or routine treatment, the record—both Plaintiff’s testimony, other 15 medical evidence, as well as the medical records beginning in March 2009—establish 16 Plaintiff’s narcotic pain medicine was but one of numerous medical interventions to treat 17 her alleged symptoms during the relevant time period. See Lapeirre–Gutt, 382 F. App’x at 18 664 (“Even assuming Lapeirre–Gutt’s regimen of powerful pain medications and injections 19 can constitute ‘conservative treatment,’ . . . it is untrue that Lapeirre–Gutt’s treatment has 20 been so limited.”). In particular, the ALJ acknowledged, based on Dr. Schosheim’s review 21 of the medical records and testimony which the ALJ afforded great weight, it appeared 22 Plaintiff underwent multiple surgeries of her hands and wrists prior to November 2012: 23 bilateral carpal tunnel release in 2003 and 2004 for a median nerve entrapment of both 24 hands and wrist surgery in 2011 for a ganglion cyst that was removed and issues concerning 25 bilateral shoulder problems. AR 42–43, 45. The ALJ also acknowledged Plaintiff 26 underwent a right L4-5 transforaminal epidural steroid injection for her lumbar spine in 27 August 2012 and surgery in October 2012 for “right shoulder arthroscopy, biceps 28 tenotomy, and arthroscopic subacromial decompression” followed by twelve weeks of 1 physical therapy. AR 41. The Court cannot find Plaintiff’s treatment of narcotic pain 2 medication combined with multiple surgeries of the hands and shoulders, an epidural 3 steroid injection, followed by twelve weeks of physical therapy to be conservative. 4 Moreover, the ALJ did not point to anything in the record suggesting more aggressive 5 procedures or treatment were available. See Lapeirre-Gutt, 382 F. App’x at 664 (“A 6 claimant cannot be discredited for failing to pursue non-conservative treatment options 7 where none exist.”). 8 The Court finds the ALJ’s stated reason that Plaintiff received not a large dosage of 9 narcotic pain medicine was not a specific, clear, and convincing reason to discount 10 Plaintiff’s subjective statements, particularly when the Court has already found the ALJ’s 11 other two reasons were improper. 12 F. Remand 13 The Court must still affirm “if the error is harmless.” Zavalin v. Colvin, 778 F.3d 14 842, 845 (9th Cir. 2015). An error is considered harmless when it is “inconsequential to 15 the ultimate nondisability determination.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 16 2020) (quoting Tommasetti, 533 F.3d at 1038). 17 The Court finds the ALJ’s discrediting of Plaintiff’s testimony without clear and 18 convincing reasons supported by substantial evidence was not harmless. See Lambert, 980 19 F.3d at 1278 (“Because the ALJ did not provide enough ‘reasoning in order for us to 20 meaningfully determine whether the ALJ’s conclusions were supported by substantial 21 evidence,’ we cannot treat the error as harmless.”) (quoting Treichler, 775 F.3d at 1103); 22 see also Ferguson, --- F.4th ----, 2024 WL 1103364, at *3 (“substantial evidence does not 23 support an ALJ’s RFC assessment if ‘the ALJ improperly rejected [the claimant’s] 24 testimony as to the severity of his pain and symptoms’”) (quoting Lingenfelter, 504. F.3d 25 at 1035). Thus, the Court has discretion to either remand for further proceedings before the 26 ALJ or remand for an award of benefits. Garrison, 759 F.3d at 1019. Where “additional 27 proceedings can remedy defects in the original administrative proceeding, a social security 28 case should be remanded.” Id. (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1 || 1981)); see also Revels, 874 F.3d at 668. Plaintiff seeks remand for further administrative 2 || proceedings to correct the legal errors. [ECF No. 22 at 15.] The Court agrees and finds 3 ||remand for further administrative proceedings is appropriate. CONCLUSION 5 For the foregoing reasons, the Court REVERSES the final decision of the 6 |}Commissioner of Social Security dated December 1, 2021 and REMANDS the matter for 7 || further administrative proceedings consistent with this opinion pursuant to sentence four 8 |lof 42 U.S.C. § 405(g). Accordingly, the Court GRANTS Plaintiffs opening brief, ECF 9 || No. 22, and DENIES Defendant’s responsive brief, ECF No. 28. 10 The Clerk shall enter judgment accordingly and terminate the case. 11 IT IS SO ORDERED. 12 || Dated: March 29, 2024 “WA vf ly IY. x7 13 HON. MICHELLE M. PETTIT 4 United States Magistrate Judge

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