(SS) Aispuro-Crowhurst v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: March 5, 2024
• Docket: 2:22-cv-01850
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROSE MARINA AISPURO- No. 2:22-cv-01850-CKD CROWHURST, 12 Plaintiff, 13 ORDER v. 14 MARTIN O’MALLEY, Commissioner of 15 Social Security, 16 Defendant. 17

18 19 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 20 (“Commissioner”) denying an application for Disability Income Benefits (“DIB”) under Title II 21 of the Social Security Act (“Act”). The parties have consented to Magistrate Judge jurisdiction to 22 conduct all proceedings in the case, including the entry of final judgment. For the reasons 23 discussed below, the court will grant plaintiff’s motion for summary judgment and deny the 24 Commissioner’s cross-motion for summary judgment. 25 BACKGROUND 26 Plaintiff, born in 1962, applied on January 3, 2020 for DIB, alleging disability beginning 27 October 29, 2019. Administrative Transcript (“AT”) 26, 43. Plaintiff alleged she was unable to 28 work due to neck, hip, and tailbone pain. AT 195, 225. In a decision dated June 1, 2021, the ALJ 1 determined that plaintiff was not disabled.1 AT 26-35. The ALJ made the following findings 2 (citations to 20 C.F.R. omitted): 3 1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2024. 4 2. The claimant has not engaged in substantial gainful activity since 5 October 29, 2019, the alleged onset date. 6 3. The claimant has the following severe impairments: degenerative disc disease of the thoracic, cervical, and lumbar spine; myofascial 7 pain syndrome. 8 4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed 9 impairments in 20 CFR Part 404, Subpart P, Appendix 1. 10 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the 11 Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to 12 disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an “inability to engage in any substantial gainful activity” due to “a medically 13 determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. 14 See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation: 15 Step one: Is the claimant engaging in substantial gainful 16 activity? If so, the claimant is found not disabled. If not, proceed to step two. 17 Step two: Does the claimant have a “severe” impairment? If 18 so, proceed to step three. If not, then a finding of not disabled is appropriate. 19 Step three: Does the claimant’s impairment or combination 20 of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined 21 disabled. If not, proceed to step four. 22 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 23 Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 26

27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the 28 burden if the sequential evaluation process proceeds to step five. Id. 1 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform 2 light work except that she can occasionally perform postural activities. She should not work at heights or with heavy hazardous 3 machinery as safety precautions. She needs a sit/stand option that allow[s] her to periodically, momentarily sit. 4 6. The claimant is capable of performing past relevant work as a real 5 estate agent (DOT # 250.357-018, light, SVP 5). This work does not require the performance of work-related activities precluded by the 6 claimant’s residual functional capacity. 7 7. The claimant has not been under a disability, as defined in the Social Security Act, from October 29, 2019, through the date of this 8 decision.

9 AT 28-34. 10 ISSUES PRESENTED 11 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 12 disabled: (1) the ALJ erred in failing to define “periodically/momentarily sit” in the hypothetical 13 question to the vocational expert (VE) and/or the residual functional capacity (RFC); (2) the ALJ 14 erred in discounting plaintiff’s subjective pain testimony; and (3) the mental RFC did not 15 incorporate plaintiff’s diagnosis of paranoia. 16 LEGAL STANDARDS 17 The court reviews the Commissioner’s decision to determine whether (1) it is based on 18 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 19 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 20 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 21 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 22 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 23 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 24 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 25 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 26 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 27 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 28 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 1 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 2 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 3 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 4 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 5 administrative findings, or if there is conflicting evidence supporting a finding of either disability 6 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 7 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 8 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 9 ANALYSIS 10 A. Sit-Stand Option 11 The RFC allowed plaintiff to perform light work with a sit/stand option “that allow[s] her 12 to periodically, momentarily sit.” Plaintiff asserts that the ALJ did not sufficiently define this 13 term, in that the ALJ “failed to describe the maximum amount of standing and sitting Plaintiff 14 may engage in” in an eight-hour workday. ECF No. 15 at 7. 15 At the March 9, 2021 hearing, the ALJ posed a hypothetical to the VE about an individual 16 who can “perform light work [and] can occasionally perform postural activities.” 2 AT 67. The 17 ALJ added that this hypothetical worker “needed a sit/stand option momentarily to periodically 18 sit. So not standing for prolonged periods.” AT 67. The VE responded that such an individual 19 could perform plaintiff’s past work as a realtor. AT 67. Relying on VE testimony, the ALJ found 20 that plaintiff could perform her past work as a real estate agent. AT 34. 21 Plaintiff argues that the ALJ’s hypothetical was “vague and ambiguous” about the 22 limitations on sitting and standing, and that this error was harmful because plaintiff’s age made 23 her a candidate for sedentary work if the sit/stand finding were different. The problem for 24 plaintiff is that nothing in her testimony suggested she needed to sit for a greater portion of the 25

2 Light work requires lifting 20 pounds occasionally and 10 pounds frequently; even if the job 26 does not require lifting, it is classified as light work if it “requires a good deal of walking or 27 standing,” defined as no more than six hours in an eight-hour workday, or when it is a predominately seated job with some pushing and pulling of arm or leg controls. 20 C.F.R. § 28 404.1567.(b). 1 day than “periodically and momentarily.” In fact, plaintiff testified repeatedly to an inability to 2 sit for very long and said that she was more comfortable standing. See AT 55 (plaintiff received 3 special accommodations in a college class “because a lot of times, I have to stand up. I can’t sit 4 down that long . . . So I had to get a paper saying that I could stand up when the pain persists”); 5 56 (plaintiff could sit for between five minutes and two hours at a time, depending on the type of 6 chair); 57 (plaintiff experienced visible swelling “if I sit down too long”); 60 (plaintiff used a 7 standing desk so she could “work a little longer than sitting down, so I feel more comfortable”); 8 61 (plaintiff had to take breaks from driving and “just walk around”). Plaintiff’s reported use of a 9 standing desk and inability to sit for long periods do not appear to contradict the sit/stand 10 language in the RFC, and plaintiff has not shown harmful error on this basis. 11 B. Credibility 12 Plaintiff next argues that the ALJ erred in discounting her testimony about pain and the 13 need to frequently alternate between positions due to pain. She asserts that, if this testimony had 14 been properly credited, she would have been found to require excessive breaks, i.e., be off-task 20 15 percent or more of the time, which would preclude full-time employment. ECF No. 15 at 13-14. 16 The ALJ summarized plaintiff’s allegations as follows: 17 She alleged disability due to neck pain and swelling and six herniated discs. She alleged that she cannot sit that long. In an exertion 18 questionnaire, she alleged that her neck swells due to herniated discs. She cannot carry much. Bending over for longer than 5 minutes hurts 19 her back. She has difficulty finishing household chores. She takes Norco three times daily for pain. She testified that she stopped 20 working due to pain in her neck and back. Medications helped, but did not remove the pain. She takes college courses, and receives 21 special accommodations, allowing her to stand up when in pain. She cannot work for long. She gets assistance with paper work for her 22 real estate work. She drives, but needs to take breaks to walk around. She can drive to Fairfield and back, one and one half hours. 23 AT 31 (record citations omitted). The ALJ found that plaintiff’s statements concerning the 24 intensity, persistence and limiting effects of her symptoms “were not entirely consistent with the 25 medical evidence and other evidence of record” for reasons explained in the decision. AT 31. 26 The ALJ determines whether a disability applicant is credible, and the court defers to the 27 ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g., 28 1 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an 2 explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990). “Without 3 affirmative evidence showing that the claimant is malingering, the Commissioner’s reasons for 4 rejecting the claimant’s testimony must be clear and convincing.” Morgan v. Commissioner of 5 Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); see also Lambert v. Saul, 980 F.3d 1266, 6 1277–78 (9th Cir. 2020). 7 In evaluating whether subjective complaints are credible, the ALJ should first consider 8 objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 9 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ 10 then may consider the nature of the symptoms alleged, including aggravating factors, medication, 11 treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the 12 applicant’s reputation for truthfulness, prior inconsistent statements or other inconsistent 13 testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a 14 prescribed course of treatment, and (3) the applicant’s daily activities. Smolen v. Chater, 80 F.3d 15 1273, 1284 (9th Cir. 1996); see generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 55406- 16 01; SSR 88-13. When discounting subjective testimony, an ALJ must provide “specific, clear, 17 and convincing reasons for doing so.” Wade v. Saul, 850 F. App’x 568, 569 (9th Cir. 2021) 18 (emphasis in original), citing Lambert v. Saul, 980 F.3d 1266, 1277–78 (9th Cir. 2020). This 19 standard does “not require ALJs to perform a line-by-line exegesis of the claimant’s testimony[.]” 20 Lambert, 980 F.3d at 1277. However, an ALJ’s detailed overview of the claimant’s medical 21 history—coupled with a nonspecific boilerplate conclusion that her testimony is “not entirely 22 consistent” with her medical treatment—is not enough to satisfy the minimal requirements for 23 assessing credibility. Id. at 1277–78. 24 Here, after making an adverse credibility finding, the ALJ summarized plaintiff’s history 25 of seeking treatment for back and neck pain between September 2019 and February 2021, roughly 26 corresponding to the period of her alleged disability. AT 31-32. The ALJ noted that, in 27 September 2019, a treatment provider found plaintiff’s pain to be 80 percent improved by her 28 current regimen as to pain, range of motion, and daily activities. AT 31, citing AT 344. At a 1 November 2019 follow-up visit, the ALJ noted, plaintiff stated that her pain was stable despite the 2 colder weather, and she was doing “really well.” AT 32, citing AT 320. The ALJ further noted 3 that, at medical appointments in March and June 2020, plaintiff reported working in real estate, 4 though her exams showed spinal tenderness; she continued to report pain and said she wanted to 5 stop working due to pain. AT 32 (record citations omitted). The ALJ also noted February 2021 6 MRI findings showing degenerative changes in the lumbar and cervical spine. AT 32 (record 7 citations omitted). The ALJ did not connect plaintiff’s treatment history with her subjective 8 statements; thus, without more, this summary of the medical evidence would not be sufficient to 9 discount plaintiff’s credibility. 10 “As for the claimant’s statements about the intensity, persistence, and limiting effects of 11 her symptoms,” the ALJ continued, 12 they are inconsistent because she reported that she “[loved] stairs,” and that she climbs stairs every day. She can carry a 24-bottle case 13 from her car to upstairs. She also loads water from her basement to her car. She goes grocery shopping and does light housework. She 14 drives a car for two hours, sometimes less, and uses a seat warmer.3 In September 2019 and June 2020, she reported 80% improvement 15 with her current regimen with improved pain.4 In November 2019, she reported that she was ‘doing really well’ and that she ‘[loved] 16 real estate,’ and that she was back in school studying writing and film TV.5 In March 2020, she reported that she was ‘back in real estate 17 now,’ that she was doing ‘some door knocking to get leads,’ that she was stable on Norco three times per day, and that she was staying 18 active.6 In June 2020, she reported that she was “working a lot and very active right now in real estate.” Her pain was reportedly worse 19 (4/10 rating) due to being “very busy with work.” She had normal range of motion of her spine.7 20 AT 32-33. 21 As with the medical evidence, the ALJ failed to connect these assorted pieces of evidence 22 23 3 Citing AT 235-237 (February 2020 exertion questionnaire). 24 4 Record citations omitted; see above. 25

5 Citing AT 320. 26

27 6 Citing AT 386.

28 7 Some record citations omitted. 1 to plaintiff’s allegations of persistent pain in her neck, shoulder, middle and lower back. See AT 2 53 (hearing transcript). Under Lambert, it is not enough to simply note parts of the record 3 without explaining, at least in a general way, why they undermine the credibility of plaintiff’s 4 statements. 980 F.3d at 1277–78; see Wade, 850 F. App’x at 569 (merely summarizing 5 claimant’s testimony about her limitations, and later mentioning that her symptoms improved 6 with medication and treatment, is reversible error). 7 Moreover, in light of plaintiff’s testimony suggesting she would be off-task for a 8 significant amount of time due to pain, the error is not harmless. Plaintiff testified that, while she 9 could do real estate paperwork despite her symptoms, 10 [i]t just takes me a lot longer, so instead of taking me an hour, you know, sometimes I’ll . . . take breaks in between and take a nap if I 11 need to, walk around, pace back and forth, whatever I need to do, but I get it done [with the help of an assistant]. 12 13 AT 59. Plaintiff also testified that, while driving, she had to “take breaks and pull over 14 somewhere and just walk around” to relieve pain. AT 61. While the ALJ cites evidence that 15 plaintiff could do short-term physical tasks (i.e., climb stairs, carry water), the credibility analysis 16 does not address plaintiff’s testimony, as summarized in the decision, that “[s]he cannot work for 17 long.” AT 31; see 237 (indicating plaintiff has difficulty finishing chores and stops doing them 18 when she feels pain). Plaintiff is entitled to summary judgment on this claim.8 19 CONCLUSION 20 With error established, the court has the discretion to remand or reverse and award 21 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded 22 under the “credit-as-true” rule for an award of benefits where: 23 (1) the record has been fully developed and further administrative 24 proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, 25 whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ 26 would be required to find the claimant disabled on remand.

28 8 The court does not reach the remaining claim. 1 |} Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the 2 || “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when 3 | the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within 4 || the meaning of the Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 5 || 403, 407 (th Cir. 2015) (“Unless the district court concludes that further administrative 6 || proceedings would serve no useful purpose, it may not remand with a direction to provide 7 || benefits.”); Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 8 | 2014) (‘Where ...an ALJ makes a legal error, but the record is uncertain and ambiguous, the 9 || proper approach is to remand the case to the agency.”’). 10 Here, the record as a whole creates serious doubt as to whether the claimant was, in fact, 11 || disabled during the relevant period. On remand, the ALJ is free to develop the record as needed, 12 || mcluding asking a vocational expert hypothetical questions about available jobs based on a 13 || revised RFC. The court expresses no opinion regarding how the evidence should ultimately be 14 || weighed, and any ambiguities or inconsistencies resolved, on remand. The court also does not 15 || instruct the ALJ to credit any particular opinion or testimony. The ALJ may ultimately find 16 | plaintiff disabled during the entirety of the relevant period; may find plaintiff eligible for some 17 || type of closed period of disability benefits; or may find that plaintiff was never disabled during 18 || the relevant period, provided that the ALJ’s determination complies with applicable legal 19 || standards and is supported by the record as a whole. 20 Accordingly, IT IS HEREBY ORDERED THAT: 21 1. Plaintiff's motion for summary judgment (ECF No. 15) is granted; 22 2. The Commissioner’s cross motion for summary judgment (ECF No. 21) is denied; 23 3. The Clerk of Court shall enter judgment for plaintiff; and 24 4. This matter is remanded for further administrative proceedings consistent with this 25 order. 26 | Dated: March 4, 2024 □□ / dp ai 2/aispuro 1850.dib.ckd CAROLYN K. DELANEY 28 UNITED STATES MAGISTRATE JUDGE