(SS) Canady v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: June 9, 2023
• Docket: 2:22-cv-00920
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY LAMONT CANADY, No. 2:22-cv-00920 CKD SS 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16

17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying an application for Supplemental Security Income (“SSI”) under Title 20 XVI of the Social Security Act (“Act”). The parties have consented to Magistrate Judge 21 jurisdiction to conduct all proceedings in the case, including the entry of final judgment. For the 22 reasons discussed below, the court will grant plaintiff’s motion for summary judgment and deny 23 the Commissioner’s cross-motion for summary judgment. 24 BACKGROUND 25 Plaintiff, born in 1964, applied on January 10, 2020 for SSI. Administrative Transcript 26 (“AT”) 32, 61. He alleged disability beginning August 8, 2008, later amended to the filing date 27 of January 10, 2020. AT 32, 64. Plaintiff alleged he was unable to work due to back and 28 shoulder problems, sciatica, allergies, migraines, and a vitamin deficiency. AT 321. In a decision 1 dated June 7, 2021, the ALJ determined that plaintiff was not disabled.1 AT 32-42. The ALJ 2 made the following findings (citations to 20 C.F.R. omitted): 3 1. The claimant has not engaged in substantial gainful activity since January 10, 2020, the application date. 4 2. The claimant has the following severe impairments: lumbar 5 degenerative disc disease (DDD) with disc bulge and sciatica on the right, and status post labral and right rotator cuff tear. 6 3. The claimant does not have an impairment or combination of 7 impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 8 4. After careful consideration of the entire record, the undersigned 9 finds that the claimant has the residual functional capacity to perform sedentary work except he may use a cane in the left hand (non- 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 dominant) when walking, can perform no reaching overhead with the right upper extremity (dominant), and can frequently reach with the 2 right arm for other right reaching. The claimant can occasionally climb ramps and stairs, but never climb ladders, ropes, scaffolds, and 3 can occasionally stoop, kneel, crouch or crawl. The claimant can never work at unprotected heights, and around moving mechanical 4 parts, nor operate a motor vehicle. 5 5. The claimant is capable of performing past relevant work as a customer service representative and telemarketer. This work does 6 not require the performance of work-related activities precluded by the claimant’s residual functional capacity. 7 6. The claimant has not been under a disability, as defined in the 8 Social Security Act, since January 10, 2020, the date the application was filed. 9

10 AT 35-42. 11 ISSUES PRESENTED 12 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 13 disabled: (1) the ALJ erred in discounting plaintiff’s statements regarding his subjective 14 symptoms; (2) the ALJ erred in failing to evaluate the opinion of a non-examining State agency 15 doctor; and (3) the ALJ failed to develop the medical opinion evidence and improperly acted as a 16 medical expert. 17 LEGAL STANDARDS 18 The court reviews the Commissioner’s decision to determine whether (1) it is based on 19 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 20 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 21 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 22 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 23 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 24 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 25 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 26 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 27 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 28 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 1 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 2 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 3 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 4 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 5 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 6 administrative findings, or if there is conflicting evidence supporting a finding of either disability 7 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 8 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 9 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 10 ANALYSIS 11 A. Credibility 12 At the May 2021 telephonic hearing on his claim, plaintiff testified that, from 2006 to 13 2008, he worked as a customer service representative at a call center. AT 62. Plaintiff resigned 14 because his back pain became so severe that he could not “sit[] at that job for eight, ten hours a 15 day[.]” AT 64-65. In 2018, he worked briefly as a telemarketer, but quit that job because “sitting 16 there for eight hours a day” was too painful for his back. AT 62, 65-66. Plaintiff testified that, if 17 he had a chair with lumbar support, he could “probably sit for two to two and a half hours before I 18 have to get up” and move around. AT 66. 19 Plaintiff testified that he had a hard time raising his right arm above his head and to the 20 side, though he could lift his left arm up and to the side. AT 68. He testified that he used a cane 21 in his non-dominant left hand to walk, and that he could stand for 15 to 30 minutes at a time. AT 22 69, 70, 80-81. Plaintiff testified that his average daily pain was a level 7 out of 10, and that he 23 took pain medication and used a portable TENS machine2. AT 71, 73. He testified that he 24 suffered from stress-related migraines that required him to lay down in a dark room with earmuffs 25

2 “Transcutaneous electrical nerve stimulation, known by its acronym TENS, is a modality that 26 uses electric current to activate nerves in order to decrease pain. The TENS unit is a small device 27 . . . [that] utilizes electrodes placed on the skin and which connect to the unit via wires to address pain in a target region.” Source: https://www.ncbi.nlm.nih.gov/books/NBK537188/ (last visited 28 6/1/23). 1 to block the sound, and take migraine medication. AT 73-74. 2 Based on plaintiff’s testimony and the documentary record, the ALJ noted that plaintiff’s 3 allegations “include right shoulder pain and soreness, stiffness, and spasms in the back resulting 4 in numbness in the right leg.”3 AT 38. The ALJ found that plaintiff’s “statements concerning the 5 intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the 6 medical evidence and other evidence in the record for reasons explained in this decision.” AT 38. 7 1. Legal Standard 8 The ALJ determines whether a disability applicant is credible, and the court defers to the 9 ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g., 10 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an 11 explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990). “Without 12 affirmative evidence showing that the claimant is malingering, the Commissioner’s reasons for 13 rejecting the claimant’s testimony must be clear and convincing.” Morgan v. Commissioner of 14 Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); see also Lambert v. Saul, 980 F.3d 1266, 15 1277–78 (9th Cir. 2020). 16 In evaluating whether subjective complaints are credible, the ALJ should first consider 17 objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 18 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ 19 then may consider the nature of the symptoms alleged, including aggravating factors, medication, 20 treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the 21 applicant’s reputation for truthfulness, prior inconsistent statements or other inconsistent 22 testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a 23 prescribed course of treatment, and (3) the applicant’s daily activities. Smolen v. Chater, 80 F.3d 24 3 Earlier in his decision, the ALJ found no objective medical evidence supporting a diagnosis for 25 migraines, as “no acceptable medical source on the record listed it as an assessed or diagnosed condition.” AT 36. Similarly, as to plaintiff’s reported knee pain, the ALJ found that “no 26 provider noted any objective findings to support pain or other limitation” and “[n]one of the 27 medical evidence suggests these reported impairments [i.e., migraines and knee pain] required additional evaluation or intervention. Thus, I find them to be non-medically determinable 28 impairments.” AT 36. 1 1273, 1284 (9th Cir. 1996); see generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 55406- 2 01; SSR 88-13. When discounting subjective testimony, an ALJ must provide “specific, clear, 3 and convincing reasons for doing so.” Wade v. Saul, 850 F. App’x 568, 569 (9th Cir. 2021) 4 (emphasis in original), citing Lambert v. Saul, 980 F.3d 1266, 1277–78 (9th Cir. 2020). This 5 standard does “not require ALJs to perform a line-by-line exegesis of the claimant’s testimony[.]” 6 Lambert, 980 F.3d at 1277. However, an ALJ’s detailed overview of the claimant’s medical 7 history—coupled with a nonspecific boilerplate conclusion that her testimony is “not entirely 8 consistent” with her medical treatment—is not enough to satisfy the minimal requirements for 9 assessing credibility. Id. at 1277–78. 10 2. Discussion 11 At the first step of the required credibility analysis, the ALJ found objective evidence of 12 medical impairment, noting plaintiff’s history of treatment for “lumbar degenerative disc disease 13 (DDD) with disc bulge and sciatica on the right, and status post labral and right rotator cuff tear.” 14 AT 38. In 2020, the year of the alleged onset date, plaintiff underwent lumbar nerve ablation 15 “due to reports of chronic back pain and stiffness.” AT 39 (record citation omitted). An October 16 2020 MRI “revealed substantive multi-level issues to include moderate to severe stenosis, disc 17 bulging, and spondylolisthesis,” and plaintiff began physical therapy in December 2020. AT 39 18 (record citations omitted). The ALJ concluded that these and other factors warranted an RFC of 19 “sedentary exertion, with need of a cane for walking, and generally no more than occasional 20 posturals, with no hard climbing.” AT 39; see AT 37-38 (assessed RFC). 21 As defendant points out, the RFC reflects plaintiff’s subjective statements to some degree. 22 Consistent with plaintiff’s testimony, the assessed limitations include the use of a left-hand cane 23 for walking and no overhead reaching with the right extremity. A closer question is whether the 24 RFC is consistent with plaintiff’s 2021 testimony that he could sit for two-hour intervals and 25 stand for up to thirty minutes. 26 Under 20 C.F.R. § 404.1567(a), sedentary work “involves lifting no more than 10 pounds 27 at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. 28 Although a sedentary job is defined as one which involves sitting, a certain amount of walking 1 and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and 2 standing are required occasionally and other sedentary criteria are met.”4 The Ninth Circuit has 3 held that, “[i]n a work environment requiring sedentary work, the Social Security Rules require 4 necessary sitting as the ability to do such for six to eight hours a day.” Vertigan v. Halter, 260 5 F.3d 1044, 1052 (9th Cir. 2001), citing SSR 83–10. “While some sedentary jobs may require 6 some walking and/or standing, others may not require any. Thus, to be physically able to work the 7 full range of sedentary jobs, the worker must be able to sit through most or all of an eight hour 8 day.” Tackett v. Apfel, 180 F.3d 1094, 1103 (9th Cir. 1999). 9 Here, the vocational expert (VE) testified that a person limited to sedentary work, along 10 with the other limits in plaintiff’s RFC, would be able to perform plaintiff’s past job as a 11 telemarketer. AT 82-83. This was the same job plaintiff quit in 2018, testifying that he was 12 unable to sit for the amount of time required, which he described as “eight hours a day.” By 13 finding plaintiff able to perform the same sedentary jobs he testified he could not perform due to 14 back pain, the ALJ discounted plaintiff’s testimony to some unspecified degree. On the other 15 hand, the ALJ apparently accepted plaintiff’s testimony that, “if he had a chair with lumbar 16 support, he could sit for two and a half hours before needing to stand[.]” AT 39, 40. 17 In fact, the ALJ’s credibility determination did not make clear what testimony he accepted 18 or rejected, or on what basis. The ALJ did not clarify whether he credited plaintiff’s testimony 19 that he could stand for 15 to 30 minutes at a time. Nor did the ALJ explain how his implicit 20 finding that plaintiff could sit and stand at intervals throughout a sedentary workday was 21 consistent (or not) with plaintiff’s alleged limitations. Rather, the ALJ concluded that, taken as a 22 whole, the medical evidence contradicted plaintiff’s testimony to the extent it was inconsistent 23 with the assessed RFC. See AT 40 (“Consideration of the record as a whole . . . reveal[s] that the 24 claimant’s allegations of disabling symptoms and limitations are not entirely consistent with and 25

4 Social Security Ruling 83–10 defines “occasionally” as “occurring very little up to one-third of 26 the time.” “[P]eriods of standing or walking should generally total no more than about 2 hours of 27 an 8–hour workday, and sitting should generally total approximately 6 hours of an 8–hour workday.” Id. 28 1 supported by the medical evidence and other evidence in the record.”). In Lambert, the Ninth 2 Circuit held that this type of credibility analysis was legally insufficient. 980 F.3d at 1277-78. 3 Moreover, assuming the ALJ accepted plaintiff’s testimony that he could not sit for long 4 periods, the ALJ should have addressed this limiting factor with the VE. As a court in this district 5 has explained, 6 “[A] person who is unable to sit for prolonged periods of time is incapable of engaging in the full range of sedentary work.” Auckland 7 [v. Massanari, 257 F.3d 1033,] 1035 [(9th Cir. 2001)] (citing SSR 83–12). However, such a limitation does not necessitate a finding of 8 disability in every case. Martinez v. Heckler, 807 F.2d 771, 774–75 (9th Cir.1986) (affirming the determination that the claimant, who 9 needed to alternate sitting and standing, was not disabled where there existed 3,750 to 4,250 jobs in the greater metropolitan area which the 10 claimant could perform with his limitation). If the claimant is capable of transferring his work skills to jobs in which a person can sit or 11 stand with a degree of choice, the claimant will not be found disabled. Auckland, 257 F.3d at 1036. In circumstances where a claimant is 12 unable to sit for prolonged periods, the services of a vocational expert are required in order to determine whether there are jobs that exist in 13 significant numbers in the national economy that would permit the claimant to sit or stand with the requisite degree of choice. Id. at 1035 14 (citing SSR 83–12); Martinez, 807 F.2d at 774. 15 Smith v. Astrue, No. CIV S–06–2373 DAD, 2009 WL 928323, at *4 (E.D. Cal. April 6, 2009) 16 (emphasis added); see Lepeltak v. Kijakazi, No. 2:20-cv-01503 CKD, 2022 WL 2954091 (E.D. 17 Cal. July 26, 2022) (remanding because “the ALJ never questioned the VE about whether 18 someone limited to six hours of sitting . . . could perform the job of bookkeeper as generally 19 performed, nor was this issue presented . . . to the VE”). 20 Here, the ALJ did not address plaintiff’s alleged sit-stand limitations with the VE, nor 21 their effect on his ability to resume his past sedentary jobs. See AT 82-83 (hearing testimony). 22 In response to a question from plaintiff’s attorney, the VE testified that an individual with 23 plaintiff’s RFC who also required a sit-stand option—i.e., could sit and stand as needed during 24 the workday—would be “unable to sustain employment.” AT 86. 25 Based on the foregoing5, the undersigned concludes that the ALJ committed harmful error 26 such that the finding of nondisability is not supported by substantial evidence. See Lambert, 980 27

28 5 The court does not reach the remaining claims. 1 F.3d at 1278 (“Because the ALJ did not provide enough ‘reasoning in order for us to 2 meaningfully determine whether the ALJ’s conclusions were supported by substantial evidence,’ 3 we cannot treat the error as harmless.” (quoting Treichler, 775 F.3d at 1103)). 4 REMEDY 5 With error established, the court has the discretion to remand or reverse and award 6 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded 7 under the “credit-as-true” rule for an award of benefits where: 8 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 9 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 10 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 11 12 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the 13 “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when 14 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within 15 the meaning of the Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 16 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative 17 proceedings would serve no useful purpose, it may not remand with a direction to provide 18 benefits.”); Treichler, 775 F.3d at 1105 (“Where . . . an ALJ makes a legal error, but the record is 19 uncertain and ambiguous, the proper approach is to remand the case to the agency.”). 20 Here, the record as a whole creates serious doubt as to whether plaintiff was disabled 21 during the relevant period. On remand, the ALJ should provide specific, clear, and convincing 22 reasons for discounting any portion(s) of plaintiff’s subjective symptom testimony, and question 23 the VE as necessary regarding any assessed sit-stand limitations. The court expresses no opinion 24 regarding how the evidence should ultimately be weighed, and any ambiguities or inconsistencies 25 resolved, on remand. The court also does not instruct the ALJ to credit any particular opinion or 26 testimony. The ALJ may ultimately find plaintiff disabled during the entirety of the relevant 27 period; may find plaintiff eligible for some type of closed period of disability benefits; or may 28 find that plaintiff was never disabled during the relevant period, provided that the ALJ’s 1 | determination complies with applicable legal standards and is supported by the record as a whole. 2 Accordingly, this matter will be remanded under sentence four of 42 U.S.C. § 405(g) for 3 | further administrative proceedings. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Plaintiffs motion for summary judgment (ECF No. 11) is granted; 6 2. The Commissioner’s motion for summary judgment (ECF No. 12) is denied; and 7 3. This matter is remanded for further proceedings consistent with this order. 8 | Dated: June 9, 2023 / hice ANKE) flo ° CAROLYN K DELANEY? 10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 |] 2/canady920.ssi.ckd 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10