8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 TRACILYN MARIE GARCIA, Case No. 1:21-cv-00068-SAB
12 Plaintiff, ORDER GRANTING PLAINTIFF’S SOCIAL SECURITY APPEAL 13 v. (ECF Nos. 20, 22) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 I. 18 INTRODUCTION 19 Tracilyn Marie Garcia (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 21 disability benefits pursuant to the Social Security Act. The matter is currently before the Court 22 on the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Stanley 23 A. Boone.1 Plaintiff submits that the ALJ erred because the mental residual functional capacity 24 determination is not supported by substantial evidence, and because the ALJ failed to provide 25 clear and convincing reasons for rejecting Plaintiff’s symptom testimony. For the reasons set 26 forth below, Plaintiff’s Social Security appeal shall be granted. 27 / / / 1 II. 2 BACKGROUND 3 A. Procedural History 4 On June 12, 2019, Plaintiff filed a Title II application for a period of disability and 5 disability insurance benefits, and a Title XVI application for supplemental security income, 6 alleging a period of disability beginning on March 1, 2018. (AR 15, 110, 229-244.) Plaintiff’s 7 application was initially denied on August 27, 2019, and denied upon reconsideration on 8 November 24, 2019. (AR 110-111, 140-141.) On November 19, 2019, Plaintiff requested a 9 hearing, and on August 8, 2020, testified at a hearing before Administrative Law Judge Michael 10 S. Condon (the “ALJ”). (AR 30-71, 155-156.) On September 15, 2020, the ALJ issued a 11 decision finding that Plaintiff was not disabled. (AR 12-29.) On November 23, 2020, the 12 Appeals Council denied Plaintiff’s request for review. (AR 1-6.) 13 On January 15, 2021, Plaintiff filed this action for judicial review. (ECF No. 1.) On June 14 11, 2021, Defendant filed the administrative record (“AR”) in this action. (ECF No. 12-1.) On 15 November 12, 2021, Plaintiff filed an opening brief. (Pl.’s Opening Br. (“Br.”), ECF No. 20.) 16 On December 13, 2021, Defendant filed an opposition brief. (Def.’s Opp’n (“Opp’n”), ECF No. 17 22.) Plaintiff did not file any reply brief. 18 B. The ALJ’s Findings of Fact and Conclusions of Law 19 The ALJ made the following findings of fact and conclusions of law as of the date of the 20 decision, May 29, 2020: 21 • Plaintiff meets the insured status requirements of the Social Security Act through 22 December 31, 2024. 23 • Plaintiff has not engaged in substantial gainful activity since March 1, 2018, the alleged 24 onset date. 25 • Plaintiff has the following severe impairments: bipolar II disorder, post-traumatic stress 26 disorder, general anxiety disorder, borderline personality disorder, and obesity. 27 • Plaintiff does not have an impairment or combination of impairments that meets or 1 Subpart P, Appendix 1. 2 • Plaintiff has the residual functional capacity to perform a full range of work at all 3 exertional levels but with the following nonexertional limitations: the claimant can never 4 climb ladders, ropes, or scaffolds, have no more than occasional exposure to greater than 5 moderate noise levels and vibration, no exposure to hazards, including unprotected 6 heights and dangerous moving machinery and no operation of motor vehicles. The 7 claimant has no limit on climbing ramps and stairs, balancing, stooping, kneeling, 8 crouching and crawling. The claimant can have no more than occasional exposure to 9 fumes, odors, dusts, gases and areas of poor ventilation. The claimant can understand, 10 remember and apply information to perform simple tasks, is able to focus on and 11 complete simple tasks, can make simple decisions and adapt to routine changes in the 12 workplace setting. The claimant can have no more than occasional contact with the 13 general public, coworkers and supervisors. 14 • Plaintiff is unable to perform any past relevant work. 15 • Plaintiff was born on August 21, 1994 and was 23 years old, which is defined as a 16 younger individual age 18-49, on the alleged disability onset date. 17 • Plaintiff has at least a high school education. 18 • Transferability of job skills is not material to the determination of disability because 19 using the Medical-Vocational Rules as a framework supports a finding that the Plaintiff is 20 “not disabled,” whether or not the Plaintiff has transferable job skills. 21 • Considering the Plaintiff’s age, education, work experience, and residual functional 22 capacity, there are jobs that exist in significant numbers in the national economy that the 23 Plaintiff can perform. 24 • Plaintiff has not been under a disability, as defined in the Social Security Act, from 25 March 1, 2018, through the date of this decision [September 18, 2020]. 26 (AR 17-24.) 27 / / / 1 III. 2 LEGAL STANDARD 3 To qualify for disability insurance benefits under the Social Security Act, the claimant 4 must show that she is unable “to engage in any substantial gainful activity by reason of any 5 medically determinable physical or mental impairment which can be expected to result in death 6 or which has lasted or can be expected to last for a continuous period of not less than 12 7 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five step 8 sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. § 9 404.1520;2 Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1194 (9th 10 Cir. 2004). The five steps in the sequential evaluation in assessing whether the claimant is 11 disabled are:
12 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 13 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or 14 her ability to work? If so, proceed to step three. If not, the claimant is not disabled. 15 Step three: Does the claimant’s impairment, or combination of impairments, meet 16 or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. 17 Step four: Does the claimant possess the residual functional capacity (“RFC”) to 18 perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 19 Step five: Does the claimant’s RFC, when considered with the claimant’s age, 20 education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not 21 disabled. If not, the claimant is disabled. 22 Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). 23 Congress has provided that an individual may obtain judicial review of any final decision 24 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). 25 In reviewing findings of fact in respect to the denial of benefits, this court “reviews the 26 2 The cases generally cited herein reference the regulations which apply to disability insurance benefits, 20 C.F.R. 27 §404.1501 et seq., however Plaintiff is also seeking supplemental security income, 20 C.F.R. § 416.901 et seq. The regulations are generally the same for both types of benefits. Therefore, further references are to the disability 1 Commissioner’s final decision for substantial evidence, and the Commissioner’s decision will be 2 disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v. 3 Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means more than a 4 scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) 5 (internal quotations and citations omitted). “Substantial evidence is relevant evidence which, 6 considering the record as a whole, a reasonable person might accept as adequate to support a 7 conclusion.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (quoting Flaten v. Sec’y of 8 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). 9 “[A] reviewing court must consider the entire record as a whole and may not affirm 10 simply by isolating a specific quantum of supporting evidence.” Hill, 698 F.3d at 1159 (quoting 11 Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006). However, it is not 12 this Court’s function to second guess the ALJ’s conclusions and substitute the court’s judgment 13 for the ALJ’s. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is 14 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be 15 upheld.”). 16 IV. 17 DISCUSSION AND ANALYSIS 18 Plaintiff raises two primary challenge in this appeal: (1) that the ALJ’s determination 19 regarding Plaintiff’s mental residual functional capacity (“MRFC”) was not supported by 20 substantial evidence; and (2) that the ALJ erred by failing to provide clear and convincing 21 reasons for discounting Plaintiff’s symptom testimony. The Court finds the ALJ erred by failing 22 to provide clear and convincing reasons for discounting the symptom testimony, and finds this 23 matter appropriate for remand. The Court finds it unnecessary to addresses Plaintiff’s challenge 24 to the MRFC. 25 A. Whether the ALJ Erred in Weighing Plaintiff’s Testimony 26 Plaintiff argues the ALJ failed to provide clear and convincing reasons for discounting 27 her testimony. (Br. 12-17.) 1 1. General Legal Standards3 2 “An ALJ is not required to believe every allegation of disabling pain or other non- 3 exertional impairment.” Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (internal punctuation 4 and citations omitted). Determining whether a claimant’s testimony regarding subjective pain or 5 symptoms is credible requires the ALJ to engage in a two-step analysis. Molina v. Astrue, 674 6 F.3d 1104, 1112 (9th Cir. 2012). The ALJ must first determine if “the claimant has presented 7 objective medical evidence of an underlying impairment which could reasonably be expected to 8 produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 9 Cir. 2007) (internal punctuation and citations omitted). This does not require the claimant to 10 show that her impairment could be expected to cause the severity of the symptoms that are 11 alleged, but only that it reasonably could have caused some degree of symptoms. Smolen, 80 12 F.3d at 1282. 13 Second, if the first test is met and there is no evidence of malingering, the ALJ can only 14 reject the claimant’s testimony regarding the severity of her symptoms by offering “clear and 15 convincing reasons” for the adverse credibility finding. Carmickle v. Commissioner of Social 16 Security, 533 F.3d 1155, 1160 (9th Cir. 2008). The ALJ must make findings that support this 17 conclusion and the findings must be sufficiently specific to allow a reviewing court to conclude 18 the ALJ rejected the claimant’s testimony on permissible grounds and did not arbitrarily discredit 19 the claimant’s testimony. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). 20 Factors that may be considered in assessing a claimant’s subjective pain and symptom 21 testimony include the claimant’s daily activities; the location, duration, intensity and frequency 22 of the pain or symptoms; factors that cause or aggravate the symptoms; the type, dosage, 23 effectiveness or side effects of any medication; other measures or treatment used for relief; 24 functional restrictions; and other relevant factors. Lingenfelter, 504 F.3d at 1040; Thomas, 278 25 F.3d at 958. In assessing the claimant’s credibility, the ALJ may also consider “(1) ordinary 26 techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent 27 3 Although Defendant maintains its disagreement with the standard, Defendant acknowledges the clear and 1 statements concerning the symptoms, and other testimony by the claimant that appears less than 2 candid; [and] (2) unexplained or inadequately explained failure to seek treatment or to follow a 3 prescribed course of treatment.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 4 (quoting Smolen, 80 F.3d at 1284). The district court is constrained to review those reasons that 5 the ALJ provided in finding the claimant’s testimony not credible. Brown-Hunter v. Colvin, 806 6 F.3d 487, 492 (9th Cir. 2015). 7 2. The ALJ’s Findings and Conclusions 8 The ALJ summarized Plaintiff’s testimony in one sentence, and made a generally 9 standard statement regarding the discounting of the symptom testimony as follows: 10 The claimant alleges that she is disabled and unable to work due to her medical and psychological conditions. Specifically, she 11 testified to and reported the following: she has difficulty with memory, concentration, and getting along with others. The 12 claimant alleges that due to her psychological conditions, she is precluded from performing work . . . these symptoms are not 13 entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. 14 15 (AR 20-21.) 16 The ALJ made the following findings as to the RFC and credibility determination overall, 17 and then reemphasized certain reasons, in addition to daily activities, for discounting the 18 symptom testimony: 19 The claimant was also diagnosed with bipolar II disorder, post- traumatic stress disorder, general anxiety disorder, and borderline 20 personality disorder. (12F; 11F; 8F; 7F; 6F; 5F). The claimant endorsed feelings of depression and anxiety, for which she was on 21 medication and seeking counseling services. However, she was treated conservatively, with routine medication and counseling 22 sessions throughout the period at issue. The record shows minimal, infrequent changes to her medication regimen. Mental status and 23 psychiatric exams throughout the period at issue showed minimal to normal findings, aside from depressed and anxious mood. 24 (12F/3, 21, 53; 11F/26, 39, 48; 8F/26; 7F; 6F/21, 46, 56; 5F/6). Examiners noted that she was cooperative, had appropriate 25 grooming, and did not note significant abnormalities to her thought processes, content, or memory. (12F/3, 21, 53; 11F/26, 39, 48; 26 8F/26; 7F; 6F/21, 46, 56; 5F/6). She did not exhibit suicidal or homicidal ideations, hallucinations, psychomotor retardation, or 27 delusions. (12F/3, 21, 53; 11F/26, 39, 48; 8F/26; 7F; 6F/21, 46, 56; 5F/6). The claimant was seen in the emergency room in 2018 and 1 4F). Otherwise, the record fails to show frequent emergency room visits or extended inpatient hospitalization. Given the medical 2 record and claimant’s testimony, the claimant’s impairments can be reasonably accommodated with a residual functional capacity of 3 a full range of work, with mental restrictions. . . . 4 The undersigned has considered several other factors in assessing the consistency of the claimant's subjective complaints with the 5 overall evidence of record pursuant to Social Security Ruling (SSR) 16-3p. The claimant's statements regarding the duration, 6 frequency and intensity of her symptoms are generally not supported by the medical evidence. For example, mental status 7 exam findings were minimal throughout the period at issue. (12F/3, 21, 53; 11F/26, 39, 48; 8F/26; 7F; 6F/21, 46, 56; 5F/6). 8 Additionally, she was treated conservatively, with routine medication and follow-up appointments. Furthermore, the 9 claimant’s admitted activities of daily living suggest a greater degree of functional capacity than claimed. (3E; 4E). For these 10 reasons, the undersigned finds that the claimant’s allegations are generally inconsistent with the record. (SSR 16-3p). 11 12 (AR 21.) 13 As relevant to Defendant’s arguments concerning the ALJ’s use of daily activities in the 14 credibility determination, the ALJ made certain findings in the step three portion of the opinion, 15 when the ALJ determined the Plaintiff did not meet or equal any listing. Specifically, at step 16 three, the ALJ made the following observations: 17 The claimant alleged that she has difficulty remembering generally, following instructions, and completing tasks. However, 18 the claimant also stated that she could perform simple maintenance, go to doctor’s appointments, and take medications . . 19 . the record shows that the claimant was able to provide information about her health, follow instructions from healthcare 20 providers, comply with treatment outside of a doctor’s office or hospital, and respond to questions from medical providers . . . 21 . . . Here, the claimant alleged that she has difficulty engaging in 22 social activities and getting along with others. However, according to her statements, the claimant is also able to spend time with 23 friends and family . . . Finally, the medical evidence shows that the claimant was described as pleasant and cooperative and appeared 24 comfortable during appointments . . .
25 . . . Finally, the claimant has mild limitations in her ability to adapt or manage herself. The claimant asserted that she has difficulties 26 managing her mood. That said, the claimant also stated that she is able to handle self-care and personal hygiene . . . Meanwhile, the 27 objective evidence in the record showed the claimant to have appropriate grooming and hygiene and no problems with temper 1 . . . The claimant contended that she has limitations in 2 concentrating generally, focusing generally, following instructions, and completing tasks. On the other hand, the claimant said that she 3 is also able to handle her own medical care . . . Additionally, the record fails to show any mention of distractibility. 4 (AR 19.) 5 3. Plaintiff’s Primary Challenges 6 Plaintiff first emphasizes the ALJ only briefly and generally summarized her hearing 7 testimony in one paragraph, before concluding the symptoms are not consistent with the 8 objective medical evidence and other evidence. (See AR 20-21 (“The claimant alleges that she is 9 disabled and unable to work due to her medical and psychological conditions. Specifically, she 10 testified to and reported the following: she has difficulty with memory, concentration, and 11 getting along with others”).) Plaintiff argues that the ALJ’s description of her mental status 12 examinations as minimal is a mischaracterization, as Plaintiff’s examination documents findings 13 of “labile,” “anxious,” “depressed mood,” “restricted” and “tense” affect, and “poor judgment.” 14 (AR 651-52, 681, 770-71, 779, 786.) Plaintiff further argues the ALJ failed to specifically 15 discuss Plaintiff’s testimony regarding limitations interacting with others and acting 16 appropriately in public, and how these findings would permit the performance of sustained work 17 activity. (Br. 14-15.) 18 Plaintiff submits the ALJ erred failed to specifically identify what testimony was credible 19 or not credible, and what evidence undermined which testimony, emphasizing testimony that she 20 has problems driving where she loses focus and becomes overwhelmed (AR 35); that she drives 21 only once or twice a week; that she will do Walmart pickup so she does not have to go inside the 22 store because “people could be overwhelming,” and she “[s]ometimes [] tend[s] to fight with 23 people…or get[s] overwhelmed by the noise or just how many people are crowded in a setting” 24 (AR 36); that she had to start cutting back hours at the Mentor Management jobs (AR 43 (“I 25 started not being able to handle doing that. I was calling in a lot”)); her testimony regarding 26 another job (AR 44-45 (“it was just overwhelming. I was shaking, I couldn’t concentrate. I had 27 to leave early. I was calling in, not go in because I couldn’t handle it”)); that her troubles 1 involved both patients and co-workers; that she testified she was unable to work due to anger 2 (AR 45 (“tend[s] to get angry, and when I get angry, I get shaky and then I can’t concentrate on 3 anything”); that in 2018 she continued experience anger issues at work (AR 46 (“just started to 4 get really angry at certain things, like almost when things are out [of] my control, anything, it’s 5 like I couldn’t handle it. It started getting worse and seeked [sic] out therapy and just started 6 seeking out help in the end of 2017, 2018, because I just couldn’t cope. I couldn’t chart, like 7 write down anything or remember half of my shift to shut down for state”)); that she had 8 “conflicts” with co-workers and a superior which resulted in her leaving her job (AR 59); and 9 that although she was enrolled in the Disabled Students Program, receiving multiple 10 accommodations including extended time to complete tasks, she was unable to continue with 11 classes due to being “overwhelmed,” resulting in her grades dropping (AR 50). In light of this 12 testimony, Plaintiff highlights that the VE testimony that if a person was absent at least twice a 13 month, there would be no work in the national economy. (AR 68-69.) 14 Next, Plaintiff argues the ALJ failed to specifically identify anywhere in the decision 15 what activities of daily living “suggest a greater degree of functional capacity than claimed” 16 when the ALJ only supported the conclusion with a citation generally to 16 pages in “Exhibits 17 3E and 4E” (AR 21, 273-288); and failed to discuss any specific aspect of Plaintiff’s testimony. 18 Plaintiff argues the ALJ failed to discuss that she left her last job after multiple conflict with 19 supervisors, co-workers and clients and reduced attendance, all due to uncontrolled psychiatric 20 symptoms from PTSD.4 Finally, Plaintiff argues the reference to conservative treatment is not 21 clear and convincing to reject severe psychiatric symptomology resulting from PTSD, as she was 22 treated with numerous and varying prescription medications. 23 4. The Court finds the ALJ Failed to Provide Clear and Convincing Reasons 24 Defendant argues the ALJ properly based the credibility determination on three grounds, 25 4 While this incident is not determinative to this appeal, the Court notes that the Plaintiff, in her challenge to the 26 MRFC, similarly describes the incident as a April 3, 2020 record that documents Plaintiff “was forced to quit her job due to her severe mental impairments.” (Br. 10, AR 770.) The record actually indicates that she “had to quit her job 27 due to stress. Client was care giver for a disabled client who was physically abusive.” (AR 770.) The Court finds counsel’s framing of this as being forced to quit due to her severe mental impairments to somewhat gloss over the 1 finding the testimony inconsistent with: (1) the objective medical evidence; (2) with the 2 conservative course of treatment; and (3) with Plaintiff’s activities. (Opp’n 8-12.) 3 The ALJ cannot discredit Plaintiff’s pain testimony solely because it is found not to be 4 supported by the objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 5 2001) (“While subjective pain testimony cannot be rejected on the sole ground that it is not fully 6 corroborated by objective medical evidence, the medical evidence is still a relevant factor in 7 determining the severity of the claimant’s pain and its disabling effects.”) (citing 20 C.F.R. § 8 404.1529(c)(2)); Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991); Vertigan v. Halter, 260 9 F.3d 1044, 1049 (9th Cir. 2001) (“The fact that a claimant’s testimony is not fully corroborated 10 by the objective medical findings, in and of itself, is not a clear and convincing reason for 11 rejecting it.”); Burch, 400 F.3d at 680-81 (“Although lack of medical evidence cannot form the 12 sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility 13 analysis.”). 14 Therefore, because the first proffered reason of being inconsistent with the objective 15 medical evidence cannot stand alone, the Court will first turn to determine whether either of the 16 other two reasons provided by the ALJ for the credibility analysis are clear and convincing 17 reasons supported by substantial evidence in the record. 18 a. Conservative Treatment 19 Conservative treatment can be a clear and convincing reason to reject a claimant’s 20 symptom testimony. See Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir. 2007) (“The ALJ also 21 noted that Parra’s physical ailments were treated with an over-the-counter pain medication. We 22 have previously indicated that evidence of ‘conservative treatment’ is sufficient to discount a 23 claimant’s testimony regarding severity of an impairment.”). 24 Plaintiff argues a finding of conservative treatment is not a clear and convincing reason 25 for rejecting her psychiatric symptomology resulting from PTSD, as she was treated with 26 numerous and varying prescription medication including SSRIs such as Zoloft and Trazadone; 27 the anti-psychotic, Abilify; as well as blood pressure medications, Clonidine and Prazosin. (AR 1 determinative here as Plaintiff’s disability claim is largely or wholly based on her mental 2 ailments. 3 The ALJ acknowledged that Plaintiff was diagnosed “with bipolar II disorder, post- 4 traumatic stress disorder, general anxiety disorder, and borderline personality disorder.” (AR 5 21.) The ALJ acknowledged that Plaintiff complained of depression and anxiety, and stated “she 6 was on medication and seeking counseling services” for this, but “she was treated 7 conservatively, with routine medication and counseling sessions throughout the period at issue 8 [and] [t]he record shows minimal, infrequent changes to her medication regimen.” (AR 21.) 9 The ALJ also noted she was seen in the emergency room in 2018 and 2020 for symptoms 10 unrelated to her mental health disorders, and found the record failed “to show frequent 11 emergency room visits or extended inpatient hospitalization.” (AR 21.) 12 Other than generally referring to “medication,” the ALJ does not specifically summarize 13 or mention Plaintiff’s course of psychological medications, the type, the dates of use, or any 14 other specific information concerning her longitudinal medical history in that regard. Other than 15 stating the medications were routine and conservative, and infrequently changed, the ALJ does 16 not specifically mention any information about the treatment by medication that would support 17 the finding of the treatment being routine and conservative. Given the various issues 18 surrounding mental health treatment and the Plaintiff’s record of mental health treatment and 19 medications, the Court does not find the ALJ’s findings and conclusions in this instance to be a 20 clear and convincing reason supported by substantial evidence in the record. See Darren W. v. 21 Saul, No. 6:19-CV-1008-SI, 2021 WL 1181177, at *10 (D. Or. Mar. 29, 2021) (“[T]he Court 22 generally hesitates to rely on conservative treatment decisions to undermine the credibility of 23 someone who, like Plaintiff, has a mental impairment.”); Baker v. Astrue, No. ED CV 09-01078 24 RZ, 2010 WL 682263, at *1 (C.D. Cal. Feb. 24, 2010) (“The Commissioner argues . . . Plaintiff 25 had a non-severe impairment because he only received conservative treatment, consisting of 26 medication management, and was not hospitalized for any episodes of decompensation . . . Much 27 treatment of mental disorders involves medication management, and it is unpersuasive to call this 1 Where mental activity is involved, administering medications that can alter behavior shows 2 anything but conservative treatment.”); Gary I. v. Kijakazi, No. 2:20-CV-07882-GJS, 2022 WL 3 220918, at *5 (C.D. Cal. Jan. 24, 2022) (“Plaintiff has multiple severe mental impairments for 4 which he takes several prescription medications, including Latuda, Wellbutrin (bupropion), and 5 Vistaril (hydroxyzine).[] At one point, Plaintiff took Zoloft, but he reported sexual side effects 6 and it was discontinued . . . Courts have established that medication treatment regimens with 7 such medications are not conservative . . . Nor must a claimant undergo psychiatric 8 hospitalization to be considered disabled.”); Wilson v. Berryhill, No. CV 17-06967-AFM, 2018 9 WL 6321629, at *4 (C.D. Cal. July 9, 2018) (“Plaintiff contends that 10 his mental health treatment was not conservative because he has been prescribed the following 11 medication: Prozac, Trazodone, Wellbutrin, Seroquel, Remeron, Zoloft, Ativan, Geodon, Paxil, 12 Buspirone . . . As Plaintiff correctly points out, courts have recognized that treatment involving 13 several of these medications is not ‘conservative.’ ”); Carden v. Colvin, No. CV 13-3856-E, 14 2014 WL 839111, at *2–3 (C.D. Cal. Mar. 4, 2014) (“the ALJ's description of 15 Plaintiff's mental health treatment as “conservative at best” mischaracterizes the treatment . . . 16 Plaintiff has been under the continuous care of mental health professionals, including 17 psychiatrists, clinical pharmacists, and psychiatric social workers . . . taken the form of frequent 18 therapy sessions and the prescribing of psychotropic medications . . . . include[ing] Zyprexa, 19 Depakote, Geodon, Remeron, Lithium, Zoloft, Risperdal, Wellbutrin, Seroquel, Trazodone and 20 Buspirone . . . Courts specifically have recognized that the prescription of several of these 21 medications connotes mental health treatment which is not ‘conservative,’ within the meaning of 22 social security jurisprudence.”).5 23
24 5 See also Corrina D. v. Kijakazi, No. CV 20-07664-JEM, 2021 WL 8362905, at *5 (C.D. Cal. Dec. 15, 2021) (“Plaintiff has multiple severe mental impairments for which she takes multiple prescription medications, including 25 Ativan, Wellbutrin, Prozac, Abilify, Trazadone, and Vistaril. (AR 27.) She also was prescribed Seroquel for a period in early 2017. (AR 367-368.) Courts have established that medication treatment regimens with such medications are not conservative . . . Nor must a claimant undergo psychiatric hospitalization to be considered disabled.”); A.B. v. 26 Saul, No. 8:18-CV-00997-SHK, 2019 WL 6139163, at *8–9 (C.D. Cal. July 23, 2019) (“Plaintiff was prescribed antipsychotics and sedatives to treat a mental condition identified as some combination of bipolar disorder, paranoid 27 schizophrenia, attention deficit hyperactive disorder, and generalized anxiety disorder . . . prescribing Zyprexa, Celexa, and Xanax, noting previous treatment with Seroquel, Ability, and Lithium, and noting that “without 1 Defendant counters that Plaintiff’s claims that her mind altering medications for severe 2 psychiatric symptomology were not conservative treatment, is inconsistent with the evidence and 3 her hearing testimony that show the treatment was conservative and that her medication made 4 her mood more stabilized (AR 48), and is consistent with the record showing stable mood and 5 lack of suicidal or homicidal ideations, hallucinations, psychomotor retardation, delusions, or 6 hospital visits for mental health disorders, citing Molina, 674 F.3d at 1111. However, in Molina, 7 the ALJ’s credibility finding in this regard was based on the findings of two examining 8 physicians. 674 F.3d at 1113 (“Moreover, the ALJ supported her conclusion that Molina was not 9 credible on the additional grounds that Molina's allegations were undermined by her demeanor 10 and presentation as described by Dr. Yost, and inconsistent with other medical evidence in the 11 record. The first finding is supported by Dr. Yost’s report that Molina was alert and oriented, 12 maintained good eye contact, did not appear excessively anxious, spoke coherently and fluently, 13 smiled appropriately, and was congenial. The second is supported by the conclusions of both Dr. 14 Yost and the state examining physician that Molina’s anxiety disorder was not severe and that 15 she was able to control it with Lorazepam and other self-calming measures.”). Here, there is no 16 examining physician findings used to support the determination of a conservative course of 17 treatment, and as Plaintiff’s primary challenge in this appeal highlights, the ALJ found the state 18 psychological assessments to be not persuasive because the assessments predated certain 19 symptom testimony and were not consistent with the overall longitudinal record, and based the 20 mental RFC determination in the absence of a physician opinion that the ALJ gave weight to. 21 (AR 22.) 22 The Court acknowledges some courts uphold a conservative treatment finding in relation 23 to mental health treatments, and similar medications. See Thomas v. v. Saul, No. CV 18-09746- 24 DFM, 2020 WL 586819, at *4 (C.D. Cal. Feb. 5, 2020) (“Plaintiff had prescriptions for Xanax 25 and Celexa for his mental impairments . . . also took metoprolol (hypertension), omeprazole 26
27 Courts have recognized that the prescription of many of these medications does not constitute “conservative treatment.” . . . Plaintiff did not need to undergo any other type of care in order to show a more aggressive treatment 1 (GERD), ProAir (asthma), QVAR (asthma), NTG (heart), aspirin, Flonase (asthma), Benadryl 2 (sleep), and Motrin or Tylenol (pain) . . . record also reflects that Plaintiff was either allergic or 3 poorly responded to a range of other medications, including SSRIs and statins . . . During his 4 hospitalization, Plaintiff recovered quickly when provided with NTG . . . The plan for treatment 5 of his condition was simply for Plaintiff to resume taking his medication, which he used up but 6 not yet refilled . . . Throughout his alleged disability period, when Plaintiff was on his 7 medication, his conditions were well controlled. Further, sometimes Plaintiff would go without 8 usage of his psychiatric medication and still report only mild depression and anxiety. The record 9 reflects a conservative, stable course of treatment.”). The Court does not mean to hold that 10 treatment with certain medications can never be considered conservative for a credibility 11 analysis. 12 However, again, here the ALJ did not sufficiently support the finding with specific 13 reasons nor tied the finding to specific testimony, nor even mentioned the specific medications. 14 Therefore, even if the medications Plaintiff was prescribed here could be considered routine and 15 conservative for the mental health conditions, the Court finds the ALJ’s analysis to be 16 insufficiently specific to qualify as a clear and convincing supported by substantial evidence in 17 the record. See Brown-Hunter, 806 F.3d at 493; Rice v. Colvin, No. 2:15-CV-1763 DB, 2017 18 WL 85815, at *5 (E.D. Cal. Jan. 10, 2017) (“[T]he ALJ failed to explain or support the assertion 19 that plaintiff's treatment has been conservative . . . The record reflects that plaintiff's treatment 20 has included medications such as Fluoxetine (Prozac), Citalopram (Celexa), Alprazolam 21 (Xanax), Prazosin (Minipress), Risperidone (Risperdal), and Venlafaxine (Effexor) . . . It is 22 entirely unclear to the court how treatment with such medications could be characterized as 23 conservative.”); Wheeler v. Berryhill, No. 3:16-CV-01623-AA, 2017 WL 3478483, at *4 (D. Or. 24 Aug. 11, 2017) (“The ALJ characterized plaintiff's course of treatment as routine 25 and conservative . . . [and] clearly identified which treatments he considered conservative, noting 26 that plaintiff has never been psychiatrically hospitalized or placed in out-or in-patient treatment, 27 takes only “routine” front-line SSRI medication, was treated by a primary care physician and not 1 psychological treatment for several months . . . But it is not possible to evaluate whether those 2 treatments conflict with plaintiff's allegations about the severity of his symptoms because the 3 ALJ never specified which symptom statements conflict with plaintiff's course of treatment.”); 4 Maria B. v. Saul, No. EDCV 20-192-KK, 2020 WL 11884826, at *7 (C.D. Cal. Oct. 30, 2020) 5 (“As an initial matter, the ALJ failed to specify which of Plaintiff's treatments was ‘routine 6 and/or conservative’ . . . Second, to the extent the ALJ claims Plaintiff received ‘routine 7 and/or conservative’ mental health treatment, the record does not suggest 8 Plaintiff's treatment was routine or conservative . . . the ALJ failed to provide any evidence or 9 discussion in support of her characterization of 10 Plaintiff’s mental health treatment as conservative.”); Emme J. C. v. Saul, No. EDCV 19-02186 11 PVC, 2021 WL 3730165, at *5 (C.D. Cal. Mar. 23, 2021) (“Courts have recognized that some of 12 Plaintiff's treatment modalities do not constitute ‘routine’ or ‘conservative’ treatment . . . The 13 ALJ’s failure to explain how Plaintiff's mental health treatment was routine 14 and conservative prevents the Court from concluding that the ALJ did not arbitrarily discredit 15 Plaintiff's testimony on this ground.”). 16 Accordingly, the Court finds the ALJ’s rejection of Plaintiff’s symptom testimony 17 because of an alleged conservative and routine course of treatment, was not a clear and 18 convincing reason supported by substantial evidence in the record. The Court now turns to 19 consideration of the ALJ’s use of daily activities in the credibility determination. 20 b. Daily Activities 21 The ALJ may consider the claimant’s daily activities in making a credibility 22 determination. See Diedrich v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017); Thomas, 278 23 F.3d at 958-59; 20 C.F.R. § 404.1529(c)(3)(i) (“Because symptoms sometimes suggest a greater 24 severity of impairment than can be shown by objective medical evidence alone, we will carefully 25 consider any other information you may submit about your symptoms . . . Factors relevant to 26 your symptoms, such as pain, which we will consider include: (i) Your daily activities.”). 27 However, “[o]ne does not need to be ‘utterly incapacitated’ in order to be disabled.” Vertigan v. 1 1989)). In fact, “many home activities are not easily transferable to what may be the more 2 grueling environment of the workplace.” Fair, 885 F.2d at 603. Only if a claimant’s level of 3 activities is inconsistent with her claimed limitations would activities of daily living have any 4 bearing on the claimant’s credibility. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). 5 There are two ways an ALJ may use daily activities for an adverse credibility finding. 6 Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). First, daily activities can form the basis of an 7 adverse credibility determination if the claimant’s activity contradicts the claimant’s testimony. 8 Id. Second, “daily activities may be grounds for an adverse credibility finding ‘if a claimant is 9 able to spend a substantial part of his day engaged in pursuits involving the performance of 10 physical functions that are transferable to a work setting.’ ” Id. (quoting Fair v. Bowen, 885 F.2d 11 597, 603 (9th Cir. 1989)). The ALJ must make specific findings as to the daily activities and 12 their transferability to conclude that the claimant’s daily activities warrant an adverse credibility 13 determination. Orn, 495 F.3d at 639. 14 In the credibility analysis of the RFC portion of the opinion, the ALJ only states: “the 15 claimant’s admitted activities of daily living suggest a greater degree of functional capacity than 16 claimed. (3E; 4E).” (AR 21.) The ALJ does not specifically cite any of the specific daily 17 activities nor what specific testimony is undermined by the daily activities, only citing to the 18 entirety of the Plaintiff’s report as submitted. 19 Defendant notes the ALJ incorporated the “paragraph B” mental function analysis into 20 the RFC analysis, and that the ALJ “discussed Plaintiff’s daily activities as reported on her 21 disability forms.” (Opp’n 11.) Above, the Court summarized these findings and observations in 22 their entirety. The Court finds the ALJ’s statements at step three do not save the ALJ’s failure to 23 properly use Plaintiff’s daily activities in the credibility analysis, and the Court does not find the 24 ALJ’s reliance on daily activities to be a clear and convincing reason supported by substantial 25 evidence in the record for discounting Plaintiff’s testimony. More specifically, at step three, the 26 ALJ largely cites to the ability to essentially complete activities such as communicating and 27 presenting at medical appointments as part of the listing analysis of the paragraph B criteria, and 1 of a basic ability to groom or complete self-care is that she can perform simple maintenance6, 2 and spends time with family and friends. (AR 19.) 3 While Defendant emphasizes the discussion was incorporated into the rest of the opinion, 4 the ALJ’s citations at step three are essentially findings relating to the listing determination 5 concerning rudimentary abilities to even obtain medical care and present oneself at a doctor to 6 receive help – these are not specific activities of daily living as typically used in a credibility 7 analysis that reviews “activities of daily living” in relation to specific testimony. As the ALJ’s 8 opinion itself indicates, the “limitations identified in the ‘paragraph B’ criteria are not a residual 9 functional capacity assessment but are used to rate the severity of mental impairments at steps 2 10 and 3 of the sequential evaluation process,” and “[t]he mental residual functional capacity 11 assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed 12 assessment of the areas of mental functioning,” (AR 20). See Hyneman v. Colvin, No. C13- 13 0669-JLR, 2013 WL 5913235, at *3 (W.D. Wash. Nov. 4, 2013) (“The Commissioner argues 14 that the ALJ also cited inconsistent daily activities as a reason to discount Plaintiff's credibility . . 15 . The Commissioner does not identify where in the decision the ALJ so noted, and the Court’s 16 review of the decision does not comport . . . the portion of the decision cited as support does not 17 actually contain a description of Plaintiff’s activities nor an explanation of how those activities 18 contradict his allegations . . . [t]he ALJ did describe the ‘mild restriction’ in Plaintiff's daily 19 activities in his step-three findings, but did not suggest there that Plaintiff's self-reported daily 20 activities undermined his credibility . . . passing reference to daily activities that are ‘contrary to 21 a finding of total disability’ . . . without any indication of which activities he had in mind nor 22 which allegations are undermined by those activities, is not sufficiently specific as to be 23 considered clear and convincing.”); Gardner v. Colvin, No. EDCV 13-1272 JC, 2014 WL 24 255621, at *4 (C.D. Cal. Jan. 23, 2014) (stating the court was “ not persuaded that the foregoing 25 finding by the ALJ satisfied the ALJ's obligation to specify the basis for rejecting plaintiff's 26 credibility in this case [as] [t]he ALJ identified the foregoing mild limitation in plaintiff's mental 27 6 The Court examined Exbibits 3E and 4E (AR273-288), which are duplicative, and the Court could not find any 1 abilities when considering the ‘paragraph B Criteria’ used to determine the severity of plaintiff's 2 mental impairments at step two . . . not when evaluating plaintiff's credibility in connection with 3 the ALJ’s residual functional capacity assessment at step four.”); Adeena W. v. Saul, No. 6:19- 4 CV-00051-SB, 2020 WL 2992191, at *4 (D. Or. June 4, 2020). 5 While the Court has significant doubts about the extent of Plaintiff’s disabling symptom 6 testimony, based on the Court’s review of the ALJ’s opinion, the record as a whole as relied on 7 by the ALJ, and the parties’ arguments, the Court does not find the ALJ’s blanket reference to 8 activities of daily living at step four, and limited discussion at step three, to be sufficiently 9 connected to specific aspects of the Plaintiff’s symptom testimony, to satisfy the clear and 10 convincing standard. The ALJ never actually linked the medical evidence by identifying which 11 daily activities conflicted with which part of the testimony. Burrell, 775 F.3d at 1138 (9th Cir. 12 2014) (“[T]he ALJ did not elaborate on which daily activities conflicted with which part of 13 Claimant's testimony.”) (emphasis in original); Lambert v. Saul, 980 F.3d 1266, 1277–78 (9th 14 Cir. 2020) (“This requires the ALJ to specifically identify the testimony [from a claimant] she or 15 he finds not to be credible and ... explain what evidence undermines that testimony.”) (internal 16 quotation marks and citation omitted); Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017) 17 (“[T]he ALJ must give specific, clear, and convincing reasons for rejecting the testimony by 18 identifying which testimony [the ALJ] found not credible and explaining which evidence 19 contradicted that testimony . . . This boilerplate language does neither.”) (internal quotation 20 marks and citations omitted) (emphasis and alterations in original). The ALJ’s use of activities 21 of daily living in the credibility analysis did not satisfy either of the permissible grounds for 22 doing so. Orn, 495 F.3d at 639 (“This court has repeatedly asserted that the mere fact that a 23 plaintiff has carried on certain daily activities ... does not in any way detract from her credibility 24 as to her overall disability . . . . Neither of the two grounds for using daily activities to form the 25 basis of an adverse credibility determination are present . . . activities do not contradict his other 26 testimony . . . [and] activities do not meet the threshold for transferable work skills.”) (quoting 27 Vertigan, 260 F.3d at 1050) (citing Fair, 885 F.2d at 603) (internal quotation marks omitted). 1 and convincing reason for discounting the Plaintiff’s symptom and limitation testimony. 2 Because Defendant’s first proffered reason of being inconsistent with the objective medical 3 evidence cannot stand alone, the Court concludes the ALJ did not provide clear and convincing 4 reasons for discounting Plaintiff’s testimony, and declines to analyze the ALJ’s finding that the 5 testimony was inconsistent with the objective medical evidence. See Rollins, 261 F.3d at 857; 6 Vertigan, 260 F.3d at 1049 (“The fact that a claimant’s testimony is not fully corroborated by the 7 objective medical findings, in and of itself, is not a clear and convincing reason for rejecting 8 it.”); Burch, 400 F.3d at 680-81 (“Although lack of medical evidence cannot form the sole basis 9 for discounting pain testimony, it is a factor that the ALJ can consider in his credibility 10 analysis.”). 11 B. The Court finds Remand is Appropriate 12 The ordinary remand rule provides that when “the record before the agency does not 13 support the agency action, . . . the agency has not considered all relevant factors, or . . . the 14 reviewing court simply cannot evaluate the challenged agency action on the basis of the record 15 before it, the proper course, except in rare circumstances, is to remand to the agency for 16 additional investigation or explanation.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 17 1090, 1099 (9th Cir. 2014). This applies equally in Social Security cases. Treichler, 775 F.3d at 18 1099. Under the Social Security Act “courts are empowered to affirm, modify, or reverse a 19 decision by the Commissioner ‘with or without remanding the cause for a rehearing.’ ” 20 Garrison, 759 F.3d at 1019 (quoting 42 U.S.C. § 405(g)). The decision to remand for benefits is 21 discretionary. Treichler, 775 F.3d at 1100. In Social Security cases, courts generally remand 22 with instructions to calculate and award benefits when it is clear from the record that the 23 claimant is entitled to benefits. Garrison, 759 F.3d at 1019. Even when the circumstances are 24 present to remand for benefits, “[t]he decision whether to remand a case for additional evidence 25 or simply to award benefits is in our discretion.” Treichler, 775 F.3d at 1102 (quoting Swenson 26 v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989)). 27 The Ninth Circuit has “devised a three-part credit-as-true standard, each part of which 1 award benefits: (1) the record has been fully developed and further administrative proceedings 2 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for 3 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 4 discredited evidence were credited as true, the ALJ would be required to find the claimant 5 disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). The credit as true 6 doctrine allows “flexibility” which “is properly understood as requiring courts to remand for 7 further proceedings when, even though all conditions of the credit-as-true rule are satisfied, an 8 evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled. 9 Garrison, 759 F.3d at 1021. 10 The Court has determined the ALJ failed to provide clear and convincing reasons for the 11 discounted weight accorded to Plaintiff’s symptom and limitation testimony. The Court need not 12 address Plaintiff’s remaining challenge to the ALJ’s mental residual functional capacity 13 determination. Plaintiff seeks the remedy of remand. (Br. 17.) The Court finds that based on 14 the ALJ’s opinion and review of the record, doubts remain as to whether Plaintiff is in fact 15 disabled. The Court orders this action remanded for further administrative proceedings 16 consistent with this opinion, and to further develop the record as deemed necessary. 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 V. 2 CONCLUSION AND ORDER 3 Based on all of the foregoing reasons, the Court finds that the ALJ did not provide clear 4 | and convincing reasons for discounting Plaintiff's symptom testimony. See Moore v. Comm’r 5 | of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002) (“The clear and convincing standard is 6 | the most demanding required in Social Security cases.”). The Court need not address Plaintiff's 7 | remaining challenge to the ALJ’s mental residual functional capacity determination, however, 8 | the Court instructs the ALJ to evaluate whether a consultative exam is necessary, and whether 9 | there is any need to further develop the record. 10 Accordingly, IT IS HEREBY ORDERED that Plaintiff's appeal from the decision of the 11 | Commissioner of Social Security is GRANTED and this matter is remanded back to the 12 | Commissioner of Social Security for further proceedings consistent with this order. It is 13 | FURTHER ORDERED that judgment be entered in favor of Plaintiff Tracilyn Marie Garcia and 14 | against Defendant Commissioner of Social Security. The Clerk of the Court is directed to 15 | CLOSE this action. 16 17 IT IS SO ORDERED. DAM Le 18 | Dated: _June 9, 2022 _ Oe 19 UNITED STATES MAGISTRATE JUDGE
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