1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RODERICK DARNELL R.,1 Case No. 2:23-cv-09048-PD
12 Plaintiff, MEMORANDUM OPINION 13 v. AND ORDER REVERSING AGENCY DECISION 14 MICHELLE KING, Acting 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 19 Plaintiff challenges the denial of his application for Supplemental 20 Security Income. For the reasons stated below, the decision of the 21 Administrative Law Judge is reversed and the Court remands this matter on 22 an open record for further proceedings. 23 24 1Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil 25 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court 26 Administration and Case Management of the United States Judicial Conference.
27 Michelle King became Acting Commissioner of Social Security on January 20, 2025. Pursuant to Rule 25(d), she is automatically substituted for Martin J. O’Malley as 28 1 I. Pertinent Procedural History and Disputed Issues 2 On February 13, 2020, Plaintiff protectively filed applications for 3 Disability Insurance Benefits (“DIB”) under Title II and Supplemental 4 Security Income (“SSI”) under Title XVI of the Social Security Act (“SSA”), 5 alleging disability beginning June 30, 2002.2 [Administrative Record (“AR”) 6 298-306.]3 Plaintiff’s applications were denied administratively on January 7 15, 2021, and upon reconsideration on July 6, 2021. [AR 18, 138-39, 182-83.] 8 Plaintiff requested a hearing, which was held via telephone due to the 9 COVID-19 pandemic on September 7, 2022, before an Administrative Law 10 Judge (“ALJ”). [AR 46-69.] Plaintiff appeared with counsel, and the ALJ 11 heard testimony from Plaintiff and a vocational expert. [Id.] At the hearing, 12 Plaintiff dismissed his Title II claim and chose to proceed only with his Title 13 XVI claim. On October 21, 2022, the ALJ issued a decision finding that Plaintiff has not been under a disability as defined by the SSA, from June 30, 14 2002, through the date of decision. [AR 18-29.] The Appeals Council denied 15 Plaintiff’s request for review on August 31, 2023, rendering the ALJ’s decision 16 the final decision of the Commissioner. [AR 1-7.] 17 18 19
20 2 Plaintiff previously filed applications for disability income and for supplemental security income and was found not disabled on December 23, 2011. [AR 18, 70-85.] 21 As a result, with respect to the unadjudicated period under the instant application, 22 there is a rebuttable presumption of continuing non-disability under the Chavez Acquiescence Ruling. See Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988); Social 23 Security Acquiescence Ruling 97-4(9). The ALJ found that Plaintiff showed a changed circumstance affecting the issue of disability and that the presumption of 24 continuing non-disability as set forth in Chavez has been rebutted because there is 25 an alleged existence of impairments not previously considered. [AR 19.]
26 3 The Administrative Record is CM/ECF Docket Numbers 11-1 through 11-11. 27 Plaintiff’s Opening Brief is at Docket Number 13 and the Commissioner’s Brief is at 28 Docket Number 15. Plaintiff did not file an optional Reply Brief. 1 The ALJ followed the five-step sequential evaluation process to assess 2 whether Plaintiff was disabled under the Social Security Act. Lester v. 3 Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), superseded on other grounds by 4 regulation as stated by Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022); 5 20 C.F.R. § 416.920(a). At step one, the ALJ found that Plaintiff met the 6 insured status requirements of the SSA through September 30, 2007, and had 7 not engaged in substantial gainful activity since his alleged onset date, June 8 30, 2002. [AR 21 ¶¶ 1, 2.] 9 At step two, the ALJ found that Plaintiff had the following severe 10 impairments: “obesity; degenerative disc disease of the lumbar spine; 11 depression; bipolar type schizoaffective disorder; and chronic obstructive 12 pulmonary disease (COPD) (20 CFR 416.920(c)).” [AR 22 ¶ 3.] The ALJ found 13 that these impairments significantly limit Plaintiff’s ability to perform basic 14 work activities. [AR 22.] At step three, the ALJ found Plaintiff does not have an impairment or 15 combination of impairments that meets or medically equals the severity of one 16 of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 17 CFR 416.920(d), 416.925 and 416.926). [AR 22 ¶ 4.] 18 Before proceeding to step four, the ALJ found Plaintiff had the Residual 19 Functional Capacity (“RFC”) for medium work, as defined in the regulations, 20 with the following limitations: 21 22 The claimant can occasionally climb ladders, ropes, or scaffolds. He can frequently engage in all other postural activities. The 23 claimant can withstand frequent exposure to dusts, fumes, odors, 24 gases, and other irritants. He is able to perform simple, routine tasks, and can make simple, work-related decisions. He can 25 occasionally engage in decision making, and can occasionally 26 manage changes in the work setting. 27 [AR 24 ¶ 5.] 28 1 At step four, the ALJ found that Plaintiff is capable of performing his 2 past relevant work as a Stores Laborer. [AR 29 ¶ 6.] This work does not 3 require the performance of work-related activities precluded by Plaintiff’s 4 RFC (20 CFR 416.965). [AR 29 ¶ 6.] 5 Accordingly, the ALJ concluded that Plaintiff has not been under a 6 disability from June 30, 2002, through the date of decision. [AR 29 ¶ 7.] 7 Plaintiff raises two issues: 8 (1) Whether the ALJ properly evaluated Plaintiff’s subjective symptom 9 testimony. 10 (2) Whether the ALJ improperly rejected the medical opinions in 11 assessing the RFC. [Dkt. No. 13 at 1-11.] 12 II. Standard of Review 13 Under 42 U.S.C. § 405(g), a district court may review the agency’s 14 decision to deny benefits. A court will vacate the agency’s decision “only if the 15 ALJ’s decision was not supported by substantial evidence in the record as a 16 whole or if the ALJ applied the wrong legal standard.” Coleman v. Saul, 979 17 F.3d 751, 755 (9th Cir. 2020) (citations omitted). “Substantial evidence means 18 more than a mere scintilla but less than a preponderance; it is such relevant 19 evidence as a reasonable person might accept as adequate to support a 20 conclusion.” Id.; Biestek v. Berryhill, 587 U.S.97, 103 (2019) (same). 21 It is the ALJ’s responsibility to resolve conflicts in the medical evidence 22 and ambiguities in the record. Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir. 23 2020). Where this evidence is “susceptible to more than one rational 24 interpretation” the ALJ’s reasonable evaluation of the proof should be upheld. 25 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Tran v. 26 Saul, 804 F. App’x 676, 678 (9th Cir. 2020).4 27 28 4 Although statements in unpublished Ninth Circuit opinions “may prove useful [] as 1 Error in Social Security determinations is subject to harmless error 2 analysis. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Error is 3 harmless if “it is inconsequential to the ultimate nondisability determination” 4 or, despite the legal error, “the agency’s path is reasonably discerned.” 5 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). 6 III. Discussion 7 A. The ALJ Erred in Evaluating Plaintiff’s Subjective 8 Symptom Testimony
9 Plaintiff argues that the ALJ failed to provide specific, clear, and 10 convincing reasons to discount his subjective complaints of physical and 11 mental limitations. [Dkt. No. 13 at 4-8.] The Commissioner disagrees, 12 arguing the ALJ properly considered his subjective testimony in assessing the 13 RFC, which is supported by substantial evidence. [Dkt. No. 15 at 7-13.] 14 15 1. Legal Standard 16 In the absence of proof of malingering, an ALJ may reject a litigant’s believability by identifying “specific, clear, and convincing” reasons supported 17 by substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 18 2017). This requires the ALJ to “specifically identify the testimony [from a 19 claimant] she or he finds not to be credible and ... explain what evidence 20 undermines that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 21 2020) (quoting Treichler, 775 F.3d at 1102); Brown-Hunter v. Colvin, 806 F.3d 22 487, 493 (9th Cir. 2015); see also Smartt v. Kijakazi, 53 F. 4th 489, 499 (9th 23 Cir. 2022) (“Ultimately, the ‘clear and convincing’ standard requires an ALJ to 24 show [their] work[.]”). Thus, to satisfy the substantial evidence standard, the 25 26 cautioned lower courts not to rely heavily on such memorandum dispositions 27 particularly as to issues of law. Grimm v. City of Portland, 971 F.3d 1060, 1067 (9th 28 Cir. 2020) (“a nonprecedential disposition is not appropriately used ... as the pivotal 1 ALJ must provide specific, clear, and convincing reasons which explain why 2 the medical evidence is inconsistent with the claimant’s subjective symptom 3 testimony. Ferguson v. O’Malley, 95 F.4th 1194, 1200 (9th Cir. 2024). 4 (emphasis in original). 5 An ALJ may consider a claimant’s conservative treatment when 6 evaluating credibility, particularly when the claimant “responded favorably” 7 to minimal treatment. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 8 2008); Burkett v. Berryhill, 732 F. App’x 547, 552 (9th Cir. 2018) (same). 9 Proof of “conservative treatment is sufficient to discount a claimant’s 10 testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 11 742, 751 (9th Cir. 2007); Mojarro v. Berryhill, 746 F. App’x 672 (9th Cir. 2018) 12 (same). An ALJ may also rely on an “unexplained or inadequately explained 13 failure to seek treatment or to follow a prescribed course of treatment,” and 14 the claimant’s daily activities. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Loader v. Berryhill, 722 F. App’x 653, 655 (9th Cir. 2018) (same). 15 An ALJ may consider a variety of factors in analyzing the believability 16 of a claimant’s symptom testimony, including “ordinary techniques of 17 credibility evaluation.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); 18 Evans v. Berryhill, 759 F. App’x 606, 608 (9th Cir. 2019) (same). 19 An ALJ can consider whether there is a lack of objective medical 20 evidence supporting a claimant’s allegations. However, this factor “cannot 21 form the sole basis” for discounting subjective symptom testimony. Burch, 22 400 F.3d at 681; Davis v. Berryhill, 736 F. App’x 662, 665 (9th Cir. 2018). 23 A court must “review only the reasons provided by the ALJ in the 24 disability determination and may not affirm the ALJ on a ground upon which 25 [s]he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Courts, 26 therefore, may not speculate as to the basis for unexplained conclusions but, 27 28 1 rather, must only consider the reasoning actually given by the ALJ. See 2 Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 3 Even if an ALJ impermissibly relies “on one of several reasons in 4 support of an adverse credibility determination,” the error is harmless if “the 5 ALJ’s remaining reasoning and ultimate credibility determination were 6 adequately supported by substantial evidence in the record.” Carmickle v. 7 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citation 8 omitted). 9 2. Plaintiff’s Subjective Symptom Testimony 10 a) Plaintiff’s Testimony 11 At the hearing, Plaintiff testified that he stopped working in June 2019 12 due to a variety of physical and mental impairments, including chronic pain 13 in his shoulders and back, difficulty standing, sitting, and walking, COPD, 14 sleep apnea, anxiety, and depression. [AR 55-62.] He testified that he has been hospitalized for throat paralysis. [AR 55.] He also testified that he has 15 been “falling a lot” and is “not stable.” [AR 55.] Plaintiff testified that in 16 2019, a cane and walker were prescribed to him, and he uses both. [AR 55.] 17 He testified that he uses the walker and can walk about a block, and then 18 needs to stop for five to ten minutes to catch his breath. [AR 55-56.] He 19 testified that he has sciatica and can stand for approximately five to twelve 20 minutes and then needs to sit down. [AR 56.] He testified that he also has 21 problems with sitting for significant durations and needs to change positions 22 to relieve pain. [AR 56.] Plaintiff testified that he has right shoulder pain 23 that was caused by a wall of microwaves falling on top of him when he was 24 working. [AR 57-58.] He testified that he cannot carry anything over three to 25 five pounds and does not try to reach over his head or hold anything. [AR 58.] 26 He testified that he has chronic back pain and described the pain level as a 27 28 1 “nine” on a scale of one to ten. [AR 58.] He takes medication for the pain. 2 [AR 58-59.] 3 Plaintiff also testified that he has mental health issues, including 4 symptoms associated with bipolar schizoaffective disorder and anxiety, and he 5 also has difficulty sleeping, concentrating, and has memory problems. [AR 6 59-60.] Plaintiff testified that he also has difficulty interacting with others, 7 because he is irritable or angry, and reports having manic episodes at least 8 two to four times a month. [AR 61.] He testified that he would have difficulty 9 following instructions from a supervisor, with attendance, and would be 10 absent from work due to his chronic depression and anxiety. [AR 62.] Plaintiff 11 testified that he began taking medication for his mental health issues in April 12 and May of 2022 and explained that he had not taken any medication before 13 that since 2015 because he was having problems with his insurance and was 14 not able to get the medication. [AR 63-64.] Plaintiff was 55 years old on the hearing date. [AR 68.] 15 b) Adult Function Report 16 In an Adult Function Report, filled out with the assistance of Anita 17 Nguyen (an appointed representative), Plaintiff reported that he is homeless 18 and lives alone. [AR 337.] He stated that he has chronic pain in his shoulders 19 and back, which limits his ability to lift or carry heavy objects. [AR 337.] His 20 shoulder pain is mainly on the right side. [AR 337.] Plaintiff reported 21 difficulty standing, sitting, or walking for significant durations before needing 22 to change positions to relieve the pain. [AR 337.] Plaintiff’s pain makes it 23 difficult for him to focus and complete tasks. [AR 337.] Plaintiff reported that 24 his physical and mental conditions make it difficult for him to lift, squat, 25 bend, stand, walk, sit, kneel, hear, and climb stairs, and affect his memory, 26 concentration, and understanding, and his ability to complete tasks, follow 27 instructions and get along with others. [AR 342.] 28 1 In addition to his physical conditions, Plaintiff reported that he suffers 2 from depression and irritability and has problems interacting with others. 3 [AR 337.] He reported he is moody and gets agitated. [AR 337.] He sleeps at 4 different hours every night and has difficulty sleeping due to pain. [AR 338.] 5 Plaintiff reported that since he is homeless, he eats when he can. [AR 338.] 6 Plaintiff reported that he tries to change his clothes and bathe at the shelter 7 once a week. [AR 338.] His daughter calls him daily to remind him to take 8 his medication, to bathe and to change his clothes. [AR 339.] He cannot 9 prepare meals because he has a hard time lifting and carrying things and 10 because he is homeless. [AR 339.] He stated that he goes outside daily and 11 travels by “riding in a car” or walking. [AR 340.] He shops for pre-made food 12 in stores three to four times a week. [AR 340.] He stated he is unable to pay 13 bills, handle a savings account or use a checkbook. [AR 340.] Plaintiff 14 reported that he does not get along with other people and did not get along with co-workers and supervisors on previous jobs. [AR 343.] Plaintiff 15 reported that he does not handle changes in routine well and is uncooperative 16 and violent. [AR 343.] 17 3. Analysis 18 Plaintiff contends that the ALJ failed to provide specific, clear, and 19 convincing reasons for discounting his subjective complaints, with respect to 20 his physical and mental limitations. [Dkt. No. 13 at 4-8.] “A claimant’s 21 subjective symptoms, if credited, are relevant to the determination of a 22 claimant’s [RFC].... The RFC is used at step four to determine if a claimant 23 can do past relevant work and at step five to determine if a claimant can 24 adjust to other work.” Ferguson, 95 F.4th at 1198 (internal citations omitted). 25 “To determine whether a claimant’s subjective symptom testimony is credible, 26 the ALJ must engage in a two-step analysis: ‘First, the ALJ must determine 27 whether the claimant has presented objective medical evidence of an 28 1 underlying impairment which could reasonably be expected to produce the 2 pain or other symptoms alleged.’ ” Id. at 1199 (citing Garrison v. Colvin, 759 3 F.3d 995, 1014 (9th Cir. 2014)). If step one is satisfied, the ALJ can only 4 reject the plaintiff's testimony for “clear and convincing reasons,” which 5 ultimately requires the ALJ to “show [their] work.” Id. (citations and internal 6 quotation marks omitted). 7 At step two of the subjective symptom testimony analysis, an ALJ must 8 identify which testimony is not credible and specifically link that testimony to 9 evidence in the record that undercuts the credibility of the testimony. See 10 Brown-Hunter, 806 F.3d at 494; accord Ferguson, 95 F.4th at 1200-01. The 11 ALJ may not simply make the conclusory statement that Plaintiff's testimony 12 is not credible because it is inconsistent with the record and then proceed with 13 an RFC analysis. Brown-Hunter, 806 F.3d at 493-94. This is because the 14 obligation to provide clear and convincing “reasons” for discounting a plaintiff's testimony is separate and distinct from any obligation to 15 summarize medical record evidence that supports an RFC determination. Id. 16 Here, the ALJ found that Plaintiff had severe impairments including, 17 obesity, degenerative disc disease of the lumbar spine, depression, bipolar 18 type schizoaffective disorder, and chronic obstructive pulmonary disease. 19 [AR 22 ¶ 3.] The ALJ further found that Plaintiff’s medically determinable 20 impairments could reasonably be expected to cause some of the alleged 21 symptoms, but also found that his statements concerning the intensity, 22 persistence, and limiting effects of those symptoms were not entirely 23 consistent with the medical evidence and the other evidence in the record. 24 [AR 25.] 25 In this case, the ALJ did not find that Plaintiff had engaged in any 26 degree of malingering, and therefore was obliged to provide at least one 27 “specific, clear, and convincing” reason supported by substantial evidence for 28 1 discounting Plaintiff’s testimony concerning the intensity, persistence and 2 limiting effects of his symptoms. Trevizo, 871 F.3d at 678. The Court finds 3 that the three reasons the ALJ provided for discounting Plaintiff’s 4 testimony—objective medical evidence, routine and conservative treatment 5 and daily activities—do not meet this burden. [AR 24-28.] 6 a) Inconsistent Statements with the Objective Medical Evidence 7
8 First, the ALJ summarized Plaintiff’s testimony including that he had 9 pain in his shoulders and back, which limits his ability to lift or carry heavy 10 objects. [AR 25.] The ALJ noted that Plaintiff reported difficulty standing, 11 sitting, or walking for significant durations before needing to change 12 positions. [AR 25.] The ALJ also noted that Plaintiff testified that he could 13 lift no more than three to five pounds, could stand for only five to twelve 14 minutes, and that he used a cane or walker to ambulate. [AR 25.] The ALJ 15 further noted that Plaintiff suffers from depression and experiences irritability and manic episodes which affect his ability to concentrate and 16 interact appropriately with others. [AR 25.] 17 The ALJ then summarized the medical evidence and determined that 18 Plaintiff’s subjective symptoms were not fully supported by the medical 19 records. [AR 25-28.] The ALJ noted that records prior to the protective filing 20 date demonstrate a history of partial tear in Plaintiff’s right shoulder in 2015. 21 [AR 25 (citing AR 623).] The ALJ referenced later records that showed 22 reports of bilateral shoulder pain, although an x-ray showed no significant 23 degenerative changes and was otherwise benign. [AR 25 (citing AR 599, 24 677).] The ALJ further noted that a lumbar spine x-ray showed mild facet 25 arthropathy bilaterally. [AR 25 (citing AR 688).] The ALJ noted that 26 Plaintiff reported low back pain after a fall [AR 25 (citing AR 509)] and was 27 advised to pursue home exercises and physical therapy [AR 25 (citing AR 28 1 591).] The ALJ highlighted exams that showed some lumbar spine 2 tenderness, but found all other findings were within normal limits, including 3 intact neurological findings. [AR 25 (citing AR 504, 510, 516, 523, 532, 623, 4 626, 629).] 5 The ALJ found that overall, the objective medical evidence as of the 6 protective filming date showed only mild findings. [AR 26.] The ALJ 7 highlighted physical exams that were largely within normal limits [AR 26 8 (citing AR 504, 510, 516, 523, 529, 623, 626, 629, 822-24)] and ongoing 9 treatment that remained limited to conservative measures, mostly consisting 10 of medication [AR (citing AR 629-631, 633-635).] The ALJ noted that mental 11 status exams revealed some mood disturbances and cognitive deficits [AR 26 12 (citing AR 744, 930)], but stated that psychiatric findings in most medical 13 visits throughout the record are entirely normal [AR 26 (citing AR 765, 812, 14 822-25, 833, 836, 839, 841, 844, 909, 921) and that Plaintiff denied anxiety or depressive symptoms [AR 26 (citing AR 632, 636)]. 15 Plaintiff argues that the ALJ failed to make sufficient findings of fact 16 with respect to Plaintiff’ physical limitations. [Dkt. No. 13 at 5-8.] For 17 example, with respect to Plaintiff’s right shoulder, Plaintiff argues that the 18 ALJ failed to provide clear and convincing reasons to discount Plaintiff’s 19 testimony that he could only lift three to five pounds and in determining an 20 RFC that Plaintiff could lift/carry up to 50 pounds occasionally, despite the 21 right shoulder tear. [Id. at 6-8.] Plaintiff also argues with respect to 22 standing and walking, that the ALJ failed to present clear and convincing 23 reasons for discounting Plaintiff’s allegations that he has limitations with 24 ambulating, which is evidenced by his use of an assistive device. Plaintiff 25 asserts that in several medical records, providers personally observed 26 Plaintiff using a cane several times. [See AR 438, 483, 574, 584, 742, 795, 27 848, 852, 865, 871, 923.] Plaintiff argues that the ALJ improperly fixated on 28 1 an isolated visit with a non-treating provider, in which the consultative 2 examiner found Plaintiff’s gait to be normal [AR 27 (citing AR 727)], while 3 ignoring the numerous times that Plaintiff’s gait was not normal [AR 575, 4 576, 580-581, 585-586, 590-591, 795, 904]. Plaintiff further asserts that he 5 reported in disability paperwork that “I am steadily falling from the stand-up 6 position to the ground” and reported falling in physical therapy. [AR 142, 7 372, 572, 625, 699, 854, 904.] 8 Here, the ALJ did not identify which specific statements of Plaintiff the 9 ALJ found not credible or inconsistent. Further, while the ALJ summarized 10 Plaintiff’s subjective symptom testimony [AR 25], the ALJ did not identify 11 which statements were or were not credible, and did not set forth any reasons 12 why any of the cited medical evidence contradicts any of those statements. 13 Under Ninth Circuit precedent, this summary was insufficient to 14 discount Plaintiff’s testimony. See Ferguson, 95 F.4th at 1200 (finding error where the ALJ failed to specify which of Ferguson’s many symptoms were, in 15 the ALJ’s view, inconsistent with the record evidence); Brown-Hunter, 806 16 F.3d at 494 (holding that an ALJ’s analysis was insufficient where “[the ALJ] 17 simply stated her non-credibility conclusion and then summarized the medical 18 evidence supporting her RFC determination.”); Burrell, 775 F.3d at 1137 19 (same where the ALJ’s decision made a general statement discounting the 20 claimant’s credibility and then “drift[ed] into a discussion of the medical 21 evidence” with “no reasons for the credibility determination”) (emphasis in 22 original); Treichler, 775 F.3d at 1103 (“An ALJ’s ‘vague allegation’ that a 23 claimant’s testimony is ‘not consistent with the objective medical evidence,’ 24 without any ‘specific findings in support’ of that conclusion is insufficient for 25 our review.”) (quoting Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009)); 26 see also Lambert, 980 F.3d at 1278 (“Although the ALJ did provide a relatively 27 detailed overview of [the claimant’s] medical history, ‘providing a summary of 28 1 medical evidence . . . is not the same as providing clear and convincing 2 reasons for finding the claimant’s symptom testimony not credible.’”) (ellipsis 3 and emphasis in original) (quoting Brown-Hunter, 806 F.3d at 494). 4 Moreover, even assuming arguendo, that the ALJ’s claim that the 5 objective medical evidence is inconsistent and does not support Plaintiff’s 6 subjective symptom testimony, a lack of objective medical evidence, on its 7 own, cannot justify discounting Plaintiff’s subjective symptom testimony. 8 b) Routine or Conservative Treatment 9 Routine, conservative treatment can be enough to discount a claimant’s 10 subjective testimony regarding the limitations caused by an impairment. 11 Parra, 481 F.3d at 750-51. Not seeking an “aggressive treatment program” 12 permits the inference that symptoms were not “as all-disabling” as the 13 claimant reported. Tommasetti, 533 F.3d at 1039. The amount of treatment 14 is “an important indicator of the intensity and persistence of [a claimant’s] symptoms.” 20 C.F.R. § 416.929(c)(3). If, however, the claimant has a good 15 reason for not seeking more aggressive treatment, conservative treatment is 16 not a proper basis for rejecting the claimant’s subjective symptoms. 17 Carmickle, 533 F.3d at 1162. 18 The ALJ noted that Plaintiff’s ongoing treatment remained limited to 19 routine and conservative measures, largely consisting of medication. [See 20 Dkt. No. 15 at 11; AR 25, 26 (citing AR 629-31, 633-35).] The ALJ explained 21 that Plaintiff’s treating provider noted that Plaintiff failed to appear to 22 several appointments. [AR 26 (citing AR 621-22, 641-42, 695-96).] The ALJ 23 further noted that medical records showed compliance issues with frequent 24 reports that Plaintiff is not taking medication [AR 26 (citing AR 732, 741, 25 756)], indicating that his symptoms are not particularly bothersome. [AR 26- 26 27.] 27 28 1 Here, the ALJ failed to properly determine the real reason for the 2 perceived scarcity in treatment: Plaintiff’s homelessness and lack of 3 insurance. There are several notations in the medical records that “Plaintiff’s 4 medical insurance was cut-off” in January 2018. [AR 629, 503.] Further, 5 Plaintiff testified that he began taking medication for his mental health 6 issues in April and May 2022 and explained that he had not taken any 7 psychotropic medication since 2015 because he was having problems with his 8 insurance and was not able to get the medication. [AR 63-64, 741.] ALJs 9 must consider possible reasons for a claimant’s failure to comply with or seek 10 treatment consistent with his alleged symptoms. SSR 16-3p, 82 FR 49462, 11 49466-67 (Oct. 25, 2017). The ALJ’s opinion here, however, does not explore 12 any of these explanations for Plaintiff's “conservative” treatment. 13 In addition, the Ninth Circuit has cautioned that “it is a questionable 14 practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation” “because mental illness is notoriously 15 underreported.” Regennitter v. Commissioner of Social Sec. Admin, 166 F.3d 16 1294, 1299–300 (9th Cir. 1999) (quoting Nguyen v. Chater, 100 F.3d 1462, 17 1465 (9th Cir. 1996)). Given this guidance and the evidence in the record, the 18 ALJ’s “conservative treatment” rationale for discounting Plaintiff's symptom 19 testimony is not a clear and convincing reason supported by record evidence. 20 c) Daily Activities 21 In discounting Plaintiff's testimony, the ALJ highlighted Plaintiff's 22 ability to handle most of his personal care, go shopping for food three to four 23 times per week, talk with his daughter daily, run errands and prepare meals. 24 [AR 27 (citing AR 337-344, 713).] The ALJ also pointed to Plaintiff's 25 statement that he “leaves his home daily and denied using public 26 transportation [AR 27 (citing AR 337-344)] but in an exam stated that he 27 takes the bus [AR 27 (citing AR 725)].” The ALJ found that this level of 28 1 functioning is inconsistent with Plaintiff’s allegations of disabling symptoms. 2 [AR 27.] 3 The ALJ, however, mischaracterizes Plaintiff’s statements in the Adult 4 Function Report and his activities. In his Adult Function Report, Plaintiff 5 reported that he is homeless and lives alone. [AR 337.] Plaintiff reported 6 that he tries to change his clothes and bathe at the shelter once a week. [AR 7 338.] He further reported that his daughter calls him daily to remind him to 8 take his medication, to bathe and to change his clothes. [AR 339.] Plaintiff 9 reported that he cannot prepare meals because he is homeless and has a hard 10 time lifting and carrying things. [AR 339.] Plaintiff reported that he shops 11 for pre-made food in stores three to four times a week. [AR 340.] He stated 12 that he goes outside daily, because he is homeless, and travels by riding in a 13 car or walking. [AR 340.] Plaintiff further stated that he is unable to pay 14 bills, handle a savings account or use a checkbook. [AR 340.] Here, the ALJ’s reasons to discount Plaintiff's subjective symptom 15 testimony based on Plaintiff’s ability to handle his personal care, go shopping 16 for food three to four times a week, talk with his daughter daily, and prepare 17 meals is not supported by substantial evidence. The ALJ mischaracterizes 18 Plaintiff’s activities and makes no attempt to explain how any of these 19 activities translated in the ability to work a full-time job. See Orn, 495 F.3d 20 at 639. For example, Plaintiff’s ability to shop for pre-made food three to four 21 times a week does not necessarily impact the believability of his pain 22 symptom testimony or establish that he engages in work-related skills on a 23 regular basis. See Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (“the 24 mere fact that a plaintiff has carried on certain daily activities [] does not in 25 any way detract from [his] credibility as to [his] overall disability.”) Thus, the 26 ALJ erred in discounting Plaintiff’s statements without making specific 27 findings relating to Plaintiff’s daily activities and their transferability to the 28 1 workplace. Burch, 400 F.3d at 681. Accordingly, the ALJ’s citation to 2 Plaintiff’s daily activities is not a clear and convincing reason to discount 3 Plaintiff’s subjective symptom testimony. 4 In sum, because the ALJ failed to provide specific, clear, and convincing 5 reasons to discount Plaintiff’s statements, the ALJ erred in discrediting 6 Plaintiff’s subjective symptoms testimony. The Court does not find this 7 harmless. If the ALJ had properly credited Plaintiff's testimony, it is possible 8 that the ALJ either would have found that Plaintiff was disabled or rendered 9 an RFC that accounted for the symptoms associated with his mental and 10 physical impairments. As such, the ALJ’s error was not “inconsequential to 11 the ultimate nondisability determination.” Treichler, 775 F.3d at 1099. 12 B. Remaining Issue and Remedy 13 Plaintiff also contends that the ALJ’s decision is not supported by 14 substantial evidence because the ALJ erred by improperly rejecting medical 15 opinion evidence in assessing Plaintiff’s RFC. [Dkt. No. 13 at 8-12.] Because 16 the Court concludes that this case be remanded on an open record, the Court 17 declines to address Plaintiff’s other claim of error. Google LLC v. Oracle 18 America, Inc., 591 U.S. 1, 20 (2021) (appellate courts “should not answer more 19 than is necessary to resolve the parties’ dispute” on appeal); see also Smith v. 20 Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) (“While Smith raises a number 21 of issues on appeal, the court addresses only those relevant to its decision to 22 remand the case to the agency[.]”); Lambert, 980 F.3d at 1278 (“We have no 23 occasion to reach Lambert’s other assignments of error, as the record may 24 change on remand.”). 25
26 27 28 1 IV. Order 2 For all the reasons stated above, the ALJ’s decision is reversed, and the 3 || case is remanded on an open record. A separate judgment will issue. 4 5 || ITIS SO ORDERED. 6 Dated: January 30, 2025 . Palace Mana HON. PATRICIA DONAHUE 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28