Powers v. Saul

Opinion

* * *

Matthew Powers, Case No. 2:20-cv-01399-BNW

Plaintiff, ORDER v.

Kilolo Kijakazi,

Defendant.

This case involves review of an administrative action by the Commissioner of Social Security denying Plaintiff1 Matthew Powers’ application for disability benefits and supplemental security income under Titles II and XVI of the Social Security Act, respectively. The Court reviewed Plaintiff’s motion to remand (ECF No. 22), filed March 26, 2021,2 and the Commissioner’s cross-motion to affirm and response to Plaintiff’s motion to remand (ECF Nos. 26, 27), filed May 24, 2021. Plaintiff replied on June 15, 2021. See ECF No. 29. The parties consented to the case being heard by a magistrate judge in accordance with 28 U.S.C. § 636(c) on July 28, 2020. ECF No. 2. This matter was then assigned to the undersigned magistrate judge for an order under 28 U.S.C. § 636(c). Id. 1. Procedural History On June 21, 2017, Plaintiff applied for disability benefits and supplemental security income under Titles II and XVI of the Act, respectively, alleging an onset date of November 22,

 Kilolo Kijakazi has been substituted for her predecessor in office, Andrew Saul, pursuant to Federal Rule of Civil Procedure 25(d). 1 The Court will use claimant and plaintiff throughout this Order. The terms are interchangeable for the 2016.3 ECF No. 20-24 at 14–15. His claim was denied initially and on reconsideration. ECF No. 20-1 at 174–79; 181–86. A hearing was held before an Administrative Law Judge (“ALJ”) on August 7, 2019. Id. at 43–72. On August 21, 2019, ALJ Timothy G. Stueve issued a decision finding that Plaintiff was not disabled. Id. at 22–36. The ALJ’s decision became the Commissioner’s final decision when the Appeals Council denied review on May 28, 2020. Id. at 7–12. Plaintiff, on July 27, 2020, timely commenced this action for judicial review under 42 U.S.C. § 405(g). See IFP App. (ECF No. 1). 1. Standard of Review Administrative decisions in Social Security disability benefits cases are reviewed under 42 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section 405(g) provides that “[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which [s]he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action . . . brought in the district court of the United States for the judicial district in which the plaintiff resides.” The court may enter “upon the pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The Commissioner’s findings of fact are conclusive if supported by substantial evidence. See id.; Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). However, the Commissioner’s findings may be set aside if they are based on legal error or not supported by substantial evidence. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); Thomas v. Barnhart,

3 Title II of the Social Security Act provides benefits to disabled individuals who are insured by virtue of working and paying Federal Insurance Contributions Act (FICA) taxes for a certain amount of time. Title XVI of the Social Security Act is a needs-based program funded by general tax revenues designed to help disabled individuals who have low or no income. Although each program is governed by a separate set of regulations, the regulations governing disability determinations are substantially the same for both programs. Compare 20 C.F.R. §§ 404.1501– 1599 (governing disability determinations under Title II) with 20 C.F.R. §§ 416.901–999d (governing disability determinations under Title XVI). 4 ECF No. 20 refers to the Administrative Record in this matter which, due to COVID-19, was electronically 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines substantial evidence as “more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). In determining whether the Commissioner’s findings are supported by substantial evidence, the court “must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). Under the substantial evidence test, findings must be upheld if supported by inferences reasonably drawn from the record. Batson v. Commissioner, 359 F.3d 1190, 1193 (9th Cir. 2004). When the evidence will support more than one rational interpretation, the court must defer to the Commissioner’s interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Flaten v. Sec’y of Health and Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). Consequently, the issue before the court is not whether the Commissioner could reasonably have reached a different conclusion, but whether the final decision is supported by substantial evidence. It is incumbent on the ALJ to make specific findings so that the court does not speculate as to the basis of the findings when determining if the Commissioner’s decision is supported by substantial evidence. Mere cursory findings of fact without explicit statements as to what portions of the evidence were accepted or rejected are not sufficient. Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981). The ALJ’s findings “should be as comprehensive and analytical as feasible, and where appropriate, should include a statement of subordinate factual foundations on which the ultimate factual conclusions are based.” Id. 2. Disability Evaluation Process The individual seeking disability benefits has the initial burden of proving disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, the individual must demonstrate the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). More specifically, the individual must provide “specific medical evidence” in support of his claim for disability. 20 C.F.R. § 404.1514. If the individual establishes an inability to perform her prior work, then the burden shifts to the Commissioner to show that the individual can perform other substantial gainful work that exists in the national economy. Reddick, 157 F.3d at 721. The ALJ follows a five-step sequential evaluation process in determining whether an individual is disabled. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). If at any step the ALJ determines that he can make a finding of disability or non-disability, a determination will be made, and no further evaluation is required. See 20 C.F.R. § 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Step one requires the ALJ to determine whether the individual is engaged in substantial gainful activity (“SGA”). 20 C.F.R. § 404.1520(b). SGA is defined as work activity that is both substantial and gainful; it involves doing significant physical or mental activities usually for pay or profit. Id. § 404.1572(a)–(b). If the individual is engaged in SGA, then a finding of not disabled is made. If the individual is not engaged in SGA, then the analysis proceeds to step two. Step two addresses whether the individual has a medically determinable impairment that is severe or a combination of impairments that significantly limits him from performing basic work activities. Id. § 404.1520(c). An impairment or combination of impairments is not severe when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on the individual’s ability to work. Id. § 404.1521; see also Social Security Rulings (“SSRs”) 85-28, 96-3p, and 96-4p.5 If the individual does not have a severe medically determinable impairment or combination of impairments, then a finding of not disabled is made. If the individual has a severe medically determinable impairment or combination of impairments, then the analysis proceeds to step three.

5 SSRs constitute the SSA’s official interpretation of the statute and regulations. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009); see also 20 C.F.R. § 402.35(b)(1). They are “entitled to ‘some Step three requires the ALJ to determine whether the individual’s impairments or combination of impairments meets or medically equals the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If the individual’s impairment or combination of impairments meets or equals the criteria of a listing and the duration requirement (20 C.F.R. § 404.1509), then a finding of disabled is made. 20 C.F.R. § 404.1520(h). If the individual’s impairment or combination of impairments does not meet or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds to step four. But before moving to step four, the ALJ must first determine the individual’s residual functional capacity (“RFC”), which is a function-by-function assessment of the individual’s ability to do physical and mental work-related activities on a sustained basis despite limitations from impairments. See 20 C.F.R. § 404.1520(e); see also SSR 96-8p. In making this finding, the ALJ must consider all the relevant evidence, such as all symptoms and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. 20 C.F.R. § 404.1529; see also SSRs 96-4p and 96-7p. To the extent that statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the individual’s statements based on a consideration of the entire case record. The ALJ must also consider opinion evidence in accordance with the requirements of 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. Step four requires the ALJ to determine whether the individual has the RFC to perform her past relevant work (“PRW”). 20 C.F.R. § 404.1520(f). PRW means work performed either as the individual actually performed it or as it is generally performed in the national economy within the last 15 years. In addition, the work must have lasted long enough for the individual to learn the job and performed a SGA. 20 C.F.R. §§ 404.1560(b) and 404.1565. If the individual has the RFC to perform his past work, then a finding of not disabled is made. If the individual is unable to perform any PRW or does not have any PRW, then the analysis proceeds to step five. The fifth and final step requires the ALJ to determine whether the individual is able to do any other work considering his RFC, age, education, and work experience. 20 C.F.R. § 404.1520(g). If he is able to do other work, then a finding of not disabled is made. Although the individual generally continues to have the burden of proving disability at this step, a limited burden of going forward with the evidence shifts to the Commissioner. The Commissioner is responsible for providing evidence demonstrating that other work exists in significant numbers in the economy that the individual can do. Yuckert, 482 U.S. at 141–42. Here, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. §§ 404.1520 and 416.920. ECF No. 20-1 at 27–36. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of November 22, 2016. Id. at 27. At step two, the ALJ found that Plaintiff had the following medically determinable “severe” impairments: polycystic kidney disease, degenerative disc disease of the lumbar spine post fusion and hardware removal, chronic pain syndrome, attention deficit disorder, history of polysubstance abuse, and bipolar disorder. Id. at 28. He further found that Plaintiff’s thyroid disease was non-severe. Id. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 28–29. Before moving to step four, the ALJ also found that Plaintiff had the RFC to perform sedentary work with the following exceptions: He can sit for 6 hours; he can stand and walk for 2 hours; he can lift and carry 10 pounds occasionally; he can occasionally climb ramps and stairs; he can occasionally balance on level surfaces; he can occasionally stoop; he can occasionally tolerate exposure to vibration; he can carry out detailed but involved instructions to perform simple, routine, and repetitive tasks involving only simple work-related decisions with few, if any, workplace changes; he can never climb ladders, ropes, or scaffolds; he can never kneel, crouch, or crawl; and he can never tolerate exposure to unprotected heights and moving At step four, the ALJ found that Plaintiff cannot perform any past relevant work. Id. at 34. At step five, the ALJ considered Plaintiff’s age, education, work experience, and RFC and found that there are jobs that exist in significant numbers in the national economy that he can perform. Id. at 35–36. Specifically, he found that Plaintiff can work as a lens inserter, production checker, and semiconductor assembler. Id. at 36. The ALJ then concluded that Plaintiff was not under a disability at any time from November 22, 2016 through the date of his decision. Id. 3. Analysis a. Whether the ALJ provided specific, clear, and convincing reasons for discounting Plaintiff’s pain and symptom testimony i. The parties’ arguments Plaintiff moves to remand this matter because he argues that each of the ALJ’s reasons for discounting his pain and symptom testimony are not “specific, clear, and convincing.” ECF No. 22 at 6. First, Plaintiff argues that the ALJ failed to identify which evidence contradicted Plaintiff’s pain and symptom testimony, noting that a blanket assertion that a plaintiff’s complaints are “inconsistent with the record as a whole is not a specific, clear[,] and convincing reason.” Id. at 7. Second, Plaintiff argues that the ALJ’s reason to discount his pain and symptom testimony on grounds that Plaintiff obtained conservative mental health treatment is not a specific, clear, and convincing reason. Id. Plaintiff adds that the ALJ further erred by not identifying alternative treatments that Plaintiff should have obtained. Finally, Plaintiff argues that the ALJ erred by finding that Plaintiff’s activities of daily living were inconsistent with his pain and symptom testimony. Id. at 8. According to Plaintiff, this reasoning by the ALJ is not supported by the record, as the ALJ “did not demonstrate that [Plaintiff] spent ‘a substantial part of h[is] day engaged in pursuits involving the performance of physical functions that are transferable to a work setting’ as required.” Id. Additionally, Plaintiff notes the activities of daily living that the ALJ cited “do not constitute an adequately specific conflict with [Plaintiff’s] reported limitations[,]” explaining that Plaintiff did not testify that he “was completely bedridden, but only that she [sic] could not work full-time given her [sic] condition.” Id. The Commissioner’s summary of the ALJ’s reasons for discounting Plaintiff’s pain and symptom testimony slightly vary from Plaintiff’s summary. She argues that the ALJ provided three reasons to discount this testimony: (1) Plaintiff’s testimony was inconsistent with the objective evidence found in the record, (2) Plaintiff’s testimony was inconsistent with his treatment history,6 and (3) Plaintiff’s testimony was inconsistent with his activities of daily living. ECF No. 26 at 6. Nonetheless, the Commissioner argues that the ALJ did not err, as his reasons were supported by the record. Id.

ii. The ALJ’s decision The ALJ found that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” ECF No. 20-1 at 30. The ALJ cited three reasons: (1) “the objective findings in this case fail to provide strong support for the claimant’s allegations of disabling limitations[,]” (2) Plaintiff’s treatment does not support his “allegations of disabling limitations” regarding his physical and mental health impairments, and (3) “[t]he record shows that the claimant is able to engage in several activities of daily living.” Id. at 31–33. iii. Whether the ALJ provided specific, clear, and convincing reasons for discounting Plaintiff’s pain and symptom testimony An ALJ engages in a two-step analysis to determine whether a plaintiff’s testimony regarding subjective pain or symptoms is credible. “First, the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks omitted). “The claimant is not required to show that h[is] impairment ‘could reasonably be expected to cause the severity of the symptom [he] has alleged;

6 It seems that while Plaintiff focuses on the ALJ’s finding that Plaintiff underwent conservative mental [he] need only show that it could reasonably have caused some degree of the symptom.’” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citations omitted). Second, “[i]f the [plaintiff] meets the first test and there is no evidence of malingering, the ALJ can only reject the [plaintiff’s] testimony about the severity of the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the [plaintiff’s] complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas, 278 F.3d at 958 (“[T]he ALJ must make a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the plaintiff’s] testimony.”)). The Ninth Circuit has recognized the clear and convincing evidence standard to be “the most demanding required in Social Security cases” and “not an easy requirement to meet.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)); Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). An ALJ’s failure to provide “specific, clear, and convincing reasons” for rejecting a plaintiff’s pain and symptom testimony constitutes legal error that is not harmless because it precludes the Court from conducting a meaningful review of the ALJ’s reasoning and ensuring that the plaintiff’s testimony is not rejected arbitrarily. Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). In making an adverse credibility determination, the ALJ may consider, among other, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the claimant’s testimony or between his testimony and his conduct; (3) the claimant’s daily living activities; (4) the claimant’s work record; and (5) testimony from physicians or third parties concerning the nature, severity, and effect of the claimant’s condition. Thomas, 278 F.3d at 958–59. Here, because there is no dispute that Plaintiff's impairments, as of the alleged onset date, could have caused the symptoms about which he testified at the ALJ hearing, the ALJ had to because the ALJ did not find that Plaintiff was a malingerer, the ALJ had to provide specific, clear, and convincing reasons, supported by substantial evidence, to discount Plaintiff’s subjective symptom testimony. Ghanim, 763 F.3d at 1163. As discussed below, the Court holds that the ALJ failed to provide specific, clear, and convincing reasons, supported by substantial evidence, to discount Plaintiff’s subjective symptom testimony as each of his proffered reasons was flawed. See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). Accordingly, he committed a non-harmless legal error. The Court will discuss each cited reason in turn. a. Plaintiff’s activities of daily living The ALJ may consider a claimant’s activities that undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a substantial part of the day engaged in pursuits involving the performance of exertional or non-exertional functions, the ALJ may find these activities inconsistent with the reported disabling symptoms. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); Molina, 674 F.3d at 1113. “While a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may discount a claimant’s symptom claims when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting” or when activities “contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112–13. Here, the ALJ noted that Plaintiff’s ability to cook simple meals,7 do laundry, perform light cleaning, care for his personal hygiene, use public transportation, drive, and handle his personal finances established that Plaintiff’s activities of daily living “are not limited to the extent one would expect, given the complaints of disabling symptoms and limitation that preclude him from work activities.” ECF No. 20-1 at 33. The ALJ’s explanation, however, lacks any specificity. First, the ALJ does not cite to the record. The Court assumes that the activities of daily living (e.g., cooking simple meals, taking public transportation) that the ALJ relied upon were taken from the adult function report that Plaintiff completed on May 2, 2017. See ECF No.

7 20-2 at 75–83. Nonetheless, even with citations to the record, it remains unclear to the Court how Plaintiff’s ability to engage in simple tasks like cleaning his room or doing laundry, which Plaintiff notably qualified as “sometimes” taking “all day[,]” is inconsistent with his pain and symptom testimony. This is to say that it is unclear to the Court how Plaintiff’s ability to complete simple tasks over a longer period of time is inconsistent with his testimony, which, as the ALJ summarized, included statements about suffering from constant lower back pain, radiating pain down his legs, numbness in his legs, and chronic pain. ECF No. 20-2 at 77. Additionally, in the same adult function report (that the Court believes the ALJ relied upon in his discussion on Plaintiff’s activities of daily living), Plaintiff wrote that he “can[’]t stand walk for long periods of time[.]” Id. at 75. Second, the ALJ’s reasoning is flawed. The Ninth Circuit, as Plaintiff seems to argue, has “‘repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities . . . does not in any way detract from h[is] credibility as to h[is] overall disability.’”8 Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). Here, as in Orn, Plaintiff’s activities do not contradict his other testimony or “meet the threshold for transferable work skills[.]” Orn, 495 F.3d at 639. The ALJ also found that even though Plaintiff “may not be able to engage in all of the activities that he did in the past and it may take him longer to perform the tasks, he is more active than would be expected if all of his allegations were consistent with the record.” ECF No. 20-1 at 33. But, again, the ALJ failed to add specificity to this otherwise-generalized statement. For example, how is Plaintiff more active than his allegations support, or how do Plaintiff’s activities of daily living transfer to a work setting? “The ALJ must make ‘specific findings relating to [the daily] activities’ and their transferability to conclude that a claimant’s daily activities warrant an

8 The Ninth Circuit has held that many of the activities of daily living that the ALJ cited to “do not necessarily translate to the work environment.” Saunders v. Astrue, 433 F. App’x 531, 533 (9th Cir. 2011); see also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (holding that grocery shopping, driving a car, and limited walking for exercise are not inconsistent with disability); see also Reddick v. Chater, 157 F.3d 715, 723 n.1 (9th Cir. adverse credibility determination.” Orn, 495 F.3d at 639 (quoting Burch, 400 F.3d at 681). Not doing so constitutes legal error. See Orn, 495 F.3d at 639. The Commissioner provides additional explanations to support the ALJ’s finding that Plaintiff’s activities of daily living are inconsistent with his testimony. ECF No. 26 at 11-12. But, as the Commissioner is well aware, the Court is “constrained to review the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). As a result, reasons provided by the Commissioner “cannot provide the basis upon which we can affirm the ALJ’s decision.” Brown-Hunter, 806 F.3d at 494. In short, the ALJ simply provided a non-credibility conclusion and summarized the evidence without specifically identifying what aspects of the record were inconsistent with Plaintiff’s testimony. This failure on the part of the ALJ to “identify the testimony [he] found not credible” and to “link that testimony to the particular parts of the record supporting [his] non- credibility determination” constitutes legal error. Brown-Hunter, 806 F.3d at 494; see also Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (citations omitted) (“The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints.”) And this legal error is not harmless because the Court cannot conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different decision. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (noting that errors are “harmless if they are ‘inconsequential to the ultimate nondisability determination’ and . . . [the court] can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination”). b. Plaintiff’s treatment The effectiveness of treatment is a relevant factor in determining the severity of a claimant’s symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2011); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (determining that conditions effectively controlled with medication are not disabling for purposes of determining eligibility for response to treatment can undermine a claimant’s complaints of debilitating pain or other severe limitations). Here, the ALJ found that, according to the medical evidence, Plaintiff’s lumbar pain is “fairly well controlled” with treatment and “the level of mental health treatment the claimant has undergone is not suggestive of him having disabling limitations.” ECF No. 20-1 at 31, 33. The ALJ was silent on whether Plaintiff’s treatment for his other severe impairments was effective in controlling these impairments or too conservative.9 The Court will turn first to the ALJ’s finding that Plaintiff’s lumbar pain is “fairly well controlled” with treatment. ECF No. 20-1 at 31. To support this finding, the ALJ provided a summary of the treatment Plaintiff obtained with respect to his lumbar degeneration. The ALJ noted that Plaintiff obtained epidural steroid injections with “limited benefit[;] “elected to undergo surgery on his lumbar spine[;]” and, although Plaintiff “reported improvement with his fusion [surgery,]” he “requested that his hardware be removed.” Id. The ALJ then stated that since Plaintiff’s hardware was removed, “he has continued to receive ongoing pain management[,]” including “several” epidural steroid injections, radio frequency ablations “on a regular basis[,]” and pain medications, for which Plaintiff has reported having pain relief. Id. The ALJ also stated that Plaintiff was told in April 2019 that he would no longer receive “prescribed narcotic medications because of repeated abnormal urine toxicology screens.” Id. Finally, the ALJ concluded “[T]his evidence indicates that with treatment[, Plaintiff’s] pain was fairly well controlled” and, therefore, “the record does not support his allegations of significant ongoing limitations.” Id. While the ALJ identified evidence from the record showing that Plaintiff was experiencing pain relief from his treatments, the ALJ erred in several respects. First, he did not accurately represent Plaintiff’s position with respect to his decision to remove the hardware in his back. The ALJ correctly acknowledged that Plaintiff reported improvement following his fusion at a follow-up appointment at Nevada Orthopedic & Spine

9 Center on May 1, 2017. ECF No. 20-1 at 31, ECF No. 20-3 at 84-85. But the ALJ failed to acknowledge how, at the time of the lumbar fusion hardware removal at Spring Valley Hospital Medical Center (“SVHMC”) later that month,10 SVHMC medical records provide that Plaintiff is “approximately one year status post L5-S1 fusion and desires hardware removal in hopes of decreasing his pain” and that the “patient elected hardware removal in hopes of improving axial lumbar spine pain.” ECF No. 20-2 at 532, 548. The hospital records further show that, prior to the surgery, Dr. Reynold Rimoldi, M.D. “explained to [Plaintiff] that there is no guarantee of complete pain relief [and] that alternative[s] such as therapy, medications, and injections were offered.” Id. at 533. Second, the ALJ omitted other evidence from the record where Plaintiff continued to report to his medical providers that, despite the treatment, he was still experiencing lumbar pain. For example, in July 2017, after he had undergone surgery to remove hardware from his spine, Plaintiff told his medical provider at Nevada Comprehensive Pain Center that his “axial pain has returned[,]” it “radiates into the bilateral paralumbar area down bilateral lower extremities to the feet[,]” he is experiencing burning, numbness, and tingling, and his symptoms are aggravated by “lumbar motion, getting in and out of a vehicle, going from sitting to standing position, being in one position for prolonged periods of time, [and] lifting heavier objects.” ECF No. 20-3 at 58. As a result, his provider approved him for repeat bilateral lumbar radiofrequency ablations at L3-S1. Id. At this same appointment, Plaintiff rated his pain level as a 6/10 but noted that it can vary between 4/10 and 8/10. Id. Further, the ALJ found that Plaintiff “reported pain relief with pain medications[,]” citing to a single medical record from Nevada Comprehensive Pain Center dated April 5, 2019.11 ECF No. 20-1. But this medical record specifically notes that Plaintiff “reports 40% pain relief on current medications.” ECF No. 20-3 at 298. Notably, other medical records from Nevada Comprehensive Pain Center from 2017 through 2019 also note that “[t]he patient reports 40%

10 The procedure took place May 26, 2017. ECF No. 20-2 at 532. 11 This same progress note shows that Plaintiff had abnormal toxicology screens on May 9, 2018; November pain relief on current medications.” See, e.g., id. at 58 (July 13, 2017 “follow-up of chronic pain”), 352 (July 12, 2018 “follow-up of chronic pain”), 303 (March 8, 2019 “follow-up of chronic pain”). Additionally, the April 2019 Nevada Comprehensive Pain Center progress note (that the ALJ singularly cited to) provides that Plaintiff, despite being on pain medication, continues to suffer from radiating axial low back pain as well as experiencing pain levels between 2/10 and 8/10, though the then-current pain level was 4-5/10. Id. at 298. Other progress notes from Nevada Comprehensive Pain Center indicate that Plaintiff experiences radiating axial low back pain; has a pain level that varies between 2/10 and 8/10;12 and has various symptoms like burning, numbness, and tingling that are aggravated by lifting heavier objects, being in one position for a prolonged period of time, going from a sitting to a standing position, and getting in and out of a vehicle. See, e.g., id. at 303, 308, 324, 334. This means that while Plaintiff reported that medication helped manage his lumbar pain, he simultaneously reported that he continued to experience lumbar pain. Additionally, while the ALJ noted that Plaintiff experienced “significant pain relief” from epidural steroid injections and radio frequency ablations, the medical records that the ALJ cites in support of his position qualify many of these benefits.13 ECF No. 20-1 at 31. For example, the progress note dated September 13, 2018 from Nevada Comprehensive Pain Center indicates that Plaintiff was experiencing an 80 percent benefit from the radiofrequency ablations that were completed about 5 months earlier. But the progress note also provides that Plaintiff was experiencing a 50 percent benefit from an epidural injection performed about 6 months earlier and a 30 percent benefit from an epidural injection performed about 10 months earlier. ECF No. 20-3 at 344. The rest of the progress note indicates that many of the benefits from the ablations were, indeed, significant (i.e., ranging between 65 and 80 percent), but they also were short-term (i.e., lasting 6 months). Id. Moreover, Plaintiff’s relief from facet blocks resulted in an 80-to-90 12 Other progress notes from Nevada Comprehensive Pain Center indicate a pain level that ranges between 4/10 and 8/10. See, e.g., ECF No. 20-3 at 380 (March 9, 2018), 360 (May 9, 2018 progress note). 13 A progress note from Nevada Orthopedic & Spine Center dated February 29, 2016, which the ALJ did not cite, indicates that Plaintiff “had a multitude of epidural injections with limited benefit.” ECF No. 20-3 at 94. And a progress note from Nevada Comprehensive Pain Center dated November 8, 2018, which was also not cited by the percent benefit for only 3 days, and his relief from “bilateral TFESI” was “limited.” Id. Of note, although the ALJ did not discuss Plaintiff’s physical therapy, medical records show that he obtained “no relief” from this treatment. See, e.g., id. at 63, 304; see also ECF No. 20-2 at 472 (progress note dated February 11, 2016 noting that Plaintiff completed physical therapy without much improvement). On this record, the Court cannot find that substantial evidence exists to support the ALJ’s finding that Plaintiff’s lumbar pain was “fairly well controlled” and, thus, inconsistent with Plaintiff’s pain and symptom testimony. Next, the Court turns to the ALJ’s finding that “the level of mental health treatment the claimant has undergone is not suggestive of him having disabling limitations.” ECF No. 20-1 at 33. The ALJ explained that Plaintiff received conservative treatment for his mental health impairments, as he obtained only medication management and therapy, did not require inpatient care, and did not need “any type of case management.” Id. This reasoning, however, is flawed. First, as Plaintiff correctly points out, such a conclusion is not specific or convincing because it does not identify any “medical opinions stating what sort of treatment should be expected for a totally disabled individual suffering from [the p]laintiff’s impairments . . . .” Schultz v. Colvin, 32 F. Supp. 3d 1047, 1060 (N.D. Cal. 2014) (emphasis in original). And the absence of such medical opinions “suggest[s] that the ALJ impermissibly relied on h[is] own, lay medical opinion.” Id. The Court also notes that, assuming such treatments exist, the ALJ did not inquire at the hearing why more aggressive treatment was not pursued. See ECF No. 20-1 at 49-54 (the hearing transcript shows that the ALJ posed questions to Plaintiff regarding where he lived; his education, financial situation, and past work; why he is unable to work full-time; who prescribes his mental health medications; and information regarding his kidney condition). As a result, the ALJ’s inaction coupled with his conclusion amounts to legal error. See Social Security Ruling (“SSR”) 16-3p, 2016 WL 1119029, at *8 (“We will not find an individual's symptoms inconsistent with the evidence in the record . . . without considering possible reasons he or she may not comply Additionally, the Ninth Circuit and district courts within the Circuit have recognized that—within the context of mental health impairments—the prescription of psychiatric medications is not indicative of conservative treatment. See, e.g., Drawn v. Berryhill, 728 F. App’x 637, 642 (9th Cir. 2018) (unpublished decision holding that the ALJ erred in classifying the claimant’s treatment as conservative “given that she was prescribed a number of psychiatric medications”); Childress v. Colvin, 2015 WL 2380872, at *14 (C.D. Cal. May 18, 2015) (noting that treatment including years of therapy, prescription antidepressants, and prescription antipsychotics cannot be properly characterized as conservative treatment). Here, the record indicates that Plaintiff was prescribed Alprazolam (i.e., Xanax),14 Bupropion (i.e., Wellbutrin),15 Clonazepam,16 Risperidone (i.e., Risperdal), Sertraline HCI (i.e., Zoloft),17 and Trazodone HCI. See, e.g., ECF No. 20-2 at 271, 280, 283, 300, 313, 324, 336. Plaintiff’s prescriptions were monitored and adjusted in conjunction with regular in-person appointments with Nicole James, LCSW and Marlynn Larivee, APRN. See, e.g., ECF No. 20-2 at 270-339. Accordingly, this was not a conservative course of treatment, and the ALJ erred in concluding otherwise. See Carden v. Colvin, No. CV 13–3856–E, 2014 WL 839111, at *3 (C.D. Cal. Mar. 4, 2014) (listing cases) (“Courts specifically have recognized that the prescription of several of these medications [including Risperdal, Trazodone, Wellbutrin, and Zoloft] connotes mental health treatment which is not ‘conservative,’ within the meaning of social security jurisprudence.”). Accordingly, the ALJ’s conclusion that Plaintiff’s pain and symptom testimony was inconsistent with his treatment for his lumbar pain and mental health impairments lacks substantial evidence and, therefore, is not a specific, clear, and convincing reason. Additionally, 14 “Xanax (Alprazolam) is used to treat anxiety disorders and panic disorder by decreasing abnormal excitement in the brain[.]” Boyles v. Colvin, 2016 WL 5660380, at *4 (D. Alaska Sept. 29, 2016). 15 “Wellbutrin is an antidepressant used to treat major depressive disorder and seasonal affective disorder.” Goodman v. Berryhill, 2017 WL 1365122, at *3 n.5 (N.D. Cal. Apr. 14, 2017). 16 At one point, Plaintiff’s medical providers discontinued his use of Clonazepam and, instead, prescribed Xanax. ECF No. 20-2 at 300. “Clonazepam is a benzodiazepine prescribed to control certain types of seizures and to relieve panic attacks.” Gomez v. Saul, 2019 WL 5721659, at *4 n.11 (E.D. Cal. Nov. 5, 2019). It “tends to cause drowsiness, and, in higher dosages, might cause weakness, imbalance, and sedation to the point of being unable to be aroused or to have breathing difficulties.” Lehmann v. Beard, 2018 WL 2283740, at *4 (C.D. Cal. Apr. 4, 2018). 17 this error is non-harmless because the Court cannot conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different decision. Marsh, 792 F.3d at 1173; see also Stout, 454 F.3d at 1055. c. Objective medical evidence Finally, the ALJ found that “the objective findings in this case fail to provide strong support for the claimant’s allegations of disabling limitations.” ECF No. 20-1 at 31. In other words, the ALJ’s final reason for discounting Plaintiff’s pain and symptom testimony is that the objective medical evidence does not support the severity of Plaintiff’s allegations. But because the Court found non-harmless errors with respect to the other two reasons that the ALJ cited to discount Plaintiff’s testimony, this third and final reason also constitutes legal error. This is so because an ALJ “may not discredit the claimant’s subjective complaints solely because the objective evidence fails to fully corroborate the degree of pain alleged.” Coleman v. Saul, 979 F.3d 751, 756 (9th Cir. 2020) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). b. Whether the jobs the ALJ found that Plaintiff could perform exist in “significant” numbers After finding that Plaintiff could not perform any past relevant work, the ALJ found that Plaintiff could perform three different jobs and, based on the vocational expert’s testimony at the hearing, these jobs exist in “significant” numbers. ECF No. 20-1 at 34-36. The parties dispute whether this was an accurate conclusion and whether Plaintiff waived his right to argue this issue by not raising it at the hearing. Because the Court found that the ALJ erred by discounting Plaintiff’s pain and symptom testimony, it does not need to reach this issue. This is so because, on remand, the ALJ, by having to reconsider his adverse credibility determination, will have to reconsider Plaintiff’s residual functional capacity and, in turn, whether Plaintiff can perform any jobs. Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion to remand (ECF No. 22) is GRANTED. IT IS FURTHER ORDERED that this case is REMANDED for further proceedings regarding Plaintiffs pain and symptom testimony. IT IS FURTHER ORDERED that, based on the ALJ’s reconsideration of Plaintiff’ s pain and symptom, the ALJ must reconsider Plaintiffs residual functional capacity, past relevant work, and whether Plaintiff can perform jobs that exist in significant numbers in the economy. IT IS FURTHER ORDERED that the Commissioner’s cross-motion to affirm and response to Plaintiff's motion to remand (ECF Nos. 26, 27) is DENIED. IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to close this case. DATED: November 4, 2021. LK p~ La WEE BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE