1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HOPE GONZALES, Case No. 1:21-cv-00129-JLT-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT PLAINTIFF’S MOTION FOR 13 v. SUMMARY JUDGMENT AND REMAND CASE TO COMMISSIONER1 14 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL FOURTEEN-DAY OBJECTION PERIOD 15 SECURITY, (Doc. No. 20) 16 Defendant. 17 18 19 Hope Gonzales (“Plaintiff”) seeks judicial review of a final decision of the Commissioner 20 of Social Security (“Commissioner” or “Defendant”) denying her application for disability 21 insurance benefits under the Social Security Act. (Doc. No. 1). The matter is currently before the 22 Court on the parties’ briefs, which were submitted without oral argument. (Doc. Nos. 20, 26-27). 23 For the reasons set forth more fully below, the undersigned recommends the district court grant 24 Plaintiff’s motion for summary judgment and remand for further administrative proceedings. 25 I. JURISDICTION 26 Plaintiff protectively filed for disability insurance benefits October 4, 2018, alleging an
27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 28 1 onset date of December 8, 2016. (AR 171-74). Benefits were denied initially (AR 90-94), and 2 upon reconsideration (AR 98-103). Plaintiff appeared before Administrative Law Judge Scot 3 Septer (“ALJ”) on August 20, 2020. (AR 30-66). Plaintiff was represented by counsel and 4 testified at the hearing. (Id.). On September 4, 2020, the ALJ issued an unfavorable decision 5 (AR 12-29), and on December 3, 2020 the Appeals Council denied review (AR 1-6). The matter 6 is now before this Court pursuant to 42 U.S.C. § 1383(c)(3). 7 II. BACKGROUND 8 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 9 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 10 summarized here. 11 Plaintiff was 52 years old at the time of the hearing. (See AR 32). She completed sixth 12 grade. (AR 39). She lives alone. (Id.). Plaintiff has work history as a commercial cleaner. (AR 13 39-41, 57). Plaintiff testified that she stopped working because of a back injury sustained while 14 working. (AR 43). She reported that she is unable to work now because she has to take regular 15 breaks to lie down and rest her back. (AR 48). On an average day, her back pain is eight on a 16 scale of one to ten, and it gets worse on some days. (AR 51-52). Plaintiff testified that she can 17 stand for twenty to thirty minutes before she needs to sit down, she can sit for forty to forty-five 18 minutes at a time, and she can lift less than five pounds. (AR 50-51). She lies down anywhere 19 from six to seven times a day, for twenty minutes at a time. (AR 53). 20 III. STANDARD OF REVIEW 21 A district court’s review of a final decision of the Commissioner of Social Security is 22 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 23 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 24 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 25 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 26 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 27 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 28 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 1 consider the entire record as a whole rather than searching for supporting evidence in isolation. 2 Id. 3 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 4 the Commissioner. “The court will uphold the ALJ’s conclusion when the evidence is susceptible 5 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 6 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 7 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 8 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 9 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 10 U.S. 396, 409-10 (2009). 11 IV. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 12 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 13 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 14 activity by reason of any medically determinable physical or mental impairment which can be 15 expected to result in death or which has lasted or can be expected to last for a continuous period 16 of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment 17 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 18 considering his age, education, and work experience, engage in any other kind of substantial 19 gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 20 The Commissioner has established a five-step sequential analysis to determine whether a 21 claimant satisfies the above criteria. See 20 C.F.R. § 404.1520(a)(4)(i)-(v). At step one, the 22 Commissioner considers the claimant’s work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the 23 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 24 claimant is not disabled. 20 C.F.R. § 404.1520(b). 25 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 26 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 27 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers from “any impairment or combination of 28 impairments which significantly limits [his or her] physical or mental ability to do basic work 1 activities,” the analysis proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s 2 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 3 claimant is not disabled. 20 C.F.R. § 404.1520(c). 4 At step three, the Commissioner compares the claimant’s impairment to severe 5 impairments recognized by the Commissioner to be so severe as to preclude a person from 6 engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii). If the impairment is as 7 severe or more severe than one of the enumerated impairments, the Commissioner must find the 8 claimant disabled and award benefits. 20 C.F.R. § 404.1520(d). 9 If the severity of the claimant’s impairment does not meet or exceed the severity of the 10 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 11 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 12 ability to perform physical and mental work activities on a sustained basis despite his or her 13 limitations, 20 C.F.R. § 404.1545(a)(1), is relevant to both the fourth and fifth steps of the 14 analysis. 15 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 16 claimant is capable of performing work that he or she has performed in the past (past relevant 17 work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is capable of performing past relevant 18 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 404.1520(f). If 19 the claimant is incapable of performing such work, the analysis proceeds to step five. 20 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 21 claimant is capable of performing other work in the national economy. 20 C.F.R. § 22 404.1520(a)(4)(v). In making this determination, the Commissioner must also consider 23 vocational factors such as the claimant’s age, education and past work experience. 20 C.F.R. § 24 404.1520(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must 25 find that the claimant is not disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable 26 of adjusting to other work, analysis concludes with a finding that the claimant is disabled and is 27 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 28 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 1 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 2 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 3 work “exists in significant numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); 4 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 5 V. ALJ’S FINDINGS 6 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 7 since December 8, 2016, the alleged onset date. (AR 18). At step two, the ALJ found that 8 Plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine and 9 obesity. (AR 18). At step three, the ALJ found that Plaintiff does not have an impairment or 10 combination of impairments that meets or medically equals the severity of a listed impairment. 11 (AR 19). The ALJ then found that Plaintiff has the RFC 12 to perform light work as defined in 20 CFR 404.1567(b), except the claimant is frequently able to climb ramps and stairs and is 13 occasionally able to climb ladders, ropes and/or scaffolds. The claimant is frequently able to balance, kneel, and crawl and is 14 occasionally able to crouch and stoop. 15 (AR 18). At step four, the ALJ found that Plaintiff was unable to perform past relevant work. 16 (AR 23). At step five, the ALJ found that considering Plaintiff’s age, education, work 17 experience, and RFC, there are jobs that exist in significant numbers in the national economy that 18 she can perform. (AR 24). On that basis, the ALJ concluded that Plaintiff has not been under a 19 disability, as defined in the Social Security Act, from December 8, 2016, through the date of the 20 decision. (AR 25). 21 VI. ISSUES 22 Plaintiff seeks judicial review of the Commissioner’s final decision denying her disability 23 insurance benefits under Title II of the Social Security Act. (Doc. No. 1). Plaintiff raises the 24 following issues for this Court’s review: 25 1. Whether the ALJ properly considered the medical opinion evidence; and 26 2. Whether the ALJ properly considered Plaintiff’s subjective complaints. 27 (Doc. No. 20 at 8-12). 28 1 VII. DISCUSSION 2 A. Medical Opinion Evidence 3 For claims filed on or after March 27, 2017, new regulations apply that change the 4 framework for how an ALJ must evaluate medical opinion evidence. Revisions to Rules 5 Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 6 2017); 20 C.F.R. § 404.1520c. The new regulations provide that the ALJ will no longer “give 7 any specific evidentiary weight…to any medical opinion(s)…” Revisions to Rules, 2017 WL 8 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 404.1520c(a). Instead, an ALJ must 9 consider and evaluate the persuasiveness of all medical opinions or prior administrative medical 10 findings from medical sources. 20 C.F.R. § 404.1520c(a) and (b). The factors for evaluating the 11 persuasiveness of medical opinions and prior administrative medical findings include 12 supportability, consistency, relationship with the claimant (including length of the treatment, 13 frequency of examinations, purpose of the treatment, extent of the treatment, and the existence of 14 an examination), specialization, and “other factors that tend to support or contradict a medical 15 opinion or prior administrative medical finding” (including, but not limited to, “evidence showing 16 a medical source has familiarity with the other evidence in the claim or an understanding of our 17 disability program’s policies and evidentiary requirements”). 20 C.F.R. § 404.1520c(c)(1)-(5). 18 Supportability and consistency are the most important factors, and therefore the ALJ is 19 required to explain how both factors were considered. 20 C.F.R. § 404.1520c(b)(2). 20 Supportability and consistency are explained in the regulations: 21 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or 22 her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) 23 will be. 24 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical 25 sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 26 20 C.F.R. § 404.1520c(c)(1)-(2). The ALJ may, but is not required to, explain how the other 27 factors were considered. 20 C.F.R. § 404.1520c(b)(2). However, when two or more medical 28 1 opinions or prior administrative findings “about the same issue are both equally well-supported ... 2 and consistent with the record ... but are not exactly the same,” the ALJ is required to explain how 3 “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 4 C.F.R. § 404.1520c(b)(3). 5 The Ninth Circuit has additionally held that the new regulatory framework displaces the 6 longstanding case law requiring an ALJ to provide “specific and legitimate” or “clear and 7 convincing” reasons for rejecting a treating or examining doctor’s opinion. Woods v. Kijakazi, 32 8 F.4th 785 (9th Cir. 2022). Nonetheless, in rejecting an examining or treating doctor’s opinion as 9 unsupported or inconsistent, an ALJ must still provide an explanation supported by substantial 10 evidence. Id. This means that the ALJ “must ‘articulate ... how persuasive’ [he or she] finds ‘all 11 of the medical opinions’ from each doctor or other source ... and ‘explain how [he or she] 12 considered the supportability and consistency factors’ in reaching these findings.” Id. (citing 20 13 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)). 14 Plaintiff argues the ALJ erroneously rejected the opinions of treating physicians, Rickie 15 Dugal, M.D. and Dr. Farah N. Siddiqui, without proper evaluation. (Doc. No. 20 at 8-10). In 16 connection with her worker’s compensation claim, Plaintiff was treated multiple times by Dr. 17 Dugal and Dr. Siddiqui, and placed on modified work duty. From October 2016 to March 2017, 18 these providers consistently opined that Plaintiff was limited to no bending or stooping, and 19 lifting, pulling, and pushing a maximum of ten pounds. (AR 427-30 (noting positive straight leg 20 test), 488-89 (noting limited range of motion, tender paralumbar muscles, positive straight leg 21 test), 512-13 (noting MRI confirmed L5-S1 disc protrusion with annular tear and referring 22 Plaintiff to physiatry), 517-18 (noting limited range of motion, tender paralumbar muscles, 23 positive straight leg test), 535-39 (noting limited range of motion, tender paralumbar muscles, 24 positive straight leg test), 546-50, 567-69, 582, 586-91). The ALJ did not consider or evaluate the 25 persuasiveness of these opinions with specificity; rather, the ALJ generally noted that he is 26 mindful that [Plaintiff] has participated in the worker’s compensation process, and that some of the medical evaluations are relevant in that 27 they contain assessments that are useful for determining [Plaintiff’s] functional ability, their administrative conclusions are different, as 28 the two programs have different criteria for evaluation and policy 1 goals. The Social Security Administration makes determinations of disability according to Social Security law, therefore a determination 2 of disability by another agency is not binding on this proceeding, and are not found to be persuasive. Nevertheless, it is noted that the 3 restriction from heavy work and repetitive postural activities is consistent with my residual functional capacity determination that 4 [Plaintiff] was capable of light work with limited postural activities as described. 5 6 (AR 21). Plaintiff argues this is not a “legally sufficient reason for rejecting a physician’s opinion 7 of functional limitations.” (Doc. No. 20 at 9). The Court agrees. 8 As relevant to Plaintiff’s worker’s compensation-related records, 20 C.F.R. § 404.1504 9 provides: 10 Other governmental agencies and nongovernmental entities—such as ... State agencies...—make disability, blindness, employability, 11 Medicaid, workers’ compensation, and other benefits decisions for their own programs using their own rules. Because a decision by any 12 other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any 13 benefits is based on its rules, it is not binding on us and is not our decision about whether you are disabled or blind under our rules. 14 Therefore, in claims filed (see § 404.614) on or after March 27, 2017, we will not provide any analysis in our determination or decision 15 about a decision made by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, 16 employable, or entitled to any benefits. However, we will consider all of the supporting evidence underlying the other governmental 17 agency or nongovernmental entity's decision that we receive as evidence in your claim in accordance with § 404.1513(a)(1) through 18 (4). 19 20 C.F.R. § 404.1504 (emphasis added); see also Alvarez v. Colvin, 562 Fed. App’x. 553 (9th Cir. 20 2014) (citing 20 C.F.R. § 404.1504) (“An ALJ is ‘not bound’ by a physician's finding that a 21 claimant ‘was temporarily totally disabled for purposes of California workers’ compensation.’”). 22 However, while the regulations make clear that the ALJ is not bound by a worker’s compensation 23 decision as to whether a plaintiff is disabled or entitled to benefits, they also direct that the 24 evidence underlying a governmental decision must still be considered. See 20 C.F.R. § 404.1504. 25 Further, it is well settled in the Ninth Circuit that the ALJ “may not disregard a physician’s 26 medical opinion simply because it was initially elicited in a state workers’ compensation 27 proceeding, or because it is couched in the terminology used in such proceedings.” Booth v. 28 Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002); Ana A. v. Kijakaji, 2022 WL 3348929, at 1 *3 (Aug. 12, 2022) (holding that ALJ erred by failing to explain why work restrictions assessed 2 as part of a worker’s compensation proceeding were rejected); see also Lester v. Chater, 81 F.3d 3 821, 832 (9th Cir. 1995) (“[t]he purpose for which medical reports are obtained does not provide 4 a legitimate basis for rejecting them.”). 5 Here, aside from a single reference in the summary of medical evidence that Plaintiff was 6 restricted to “no bending, stooping, or lifting/carrying over 10 pounds” (AR 19), the ALJ failed to 7 address the functional limitations opined by Dr. Dugal and Dr. Siddiqui assessed in connection 8 with Plaintiff’s worker’s compensation claim. Rather, the ALJ summarily dismissed “medical 9 evidence in the file produced” as part of Plaintiff’s worker’s compensation claim as unpersuasive 10 solely because “the two program have different criteria for evaluation and policy goals,” while 11 explicitly conceding that the medical evaluations “are relevant in that they contain assessments 12 that are useful for determining the claimant’s functional ability.” (AR 21). This was error. See 13 Hill, 698 F.3d at 1161 (when the ALJ improperly ignores significant and probative evidence in 14 the record favorable to a claimant’s position, the ALJ “thereby provide[s] an incomplete . . . 15 [disability] determination.”). Moreover, the ALJ failed entirely to explain whether or how he 16 considered the supportability and consistency factors with regards to Dr. Dugal and Dr. Siddiqui’s 17 opinions. See Woods, 32 F.4th at 792 (“The agency must ‘articulate ... how persuasive’ it finds 18 ‘all of the medical opinions’ from each doctor or other source, 20 C.F.R. § 404.1520c(b), and 19 “explain how [it] considered the supportability and consistency factors” in reaching these 20 findings, id. § 404.1520c(b)(2).”). Thus, even were the Court to infer that the ALJ found the 21 medical opinions of Dr. Dugal and Dr. Siddiqui, as part of the “medical evidence in the file 22 produced” during the “worker’s compensation process” were “not persuasive,” the finding is not 23 supported by substantial evidence. 24 Defendant argues that “any error the ALJ possibly made by not specifically detailing Drs. 25 Dugal and Siddiqui’s temporary limitations was harmless.” (Doc. No. 26 at 15). The reviewing 26 court cannot consider an error harmless unless it “can confidently conclude that no reasonable 27 ALJ, when fully crediting the [evidence], could have reached a different disability 28 determination.” Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). In 1 support of this argument, Defendant cites the ALJ’s consideration of Dr. Michael Charles’ 2 opinion, as part of Plaintiff’s worker’s compensation claim, determining that Plaintiff had reached 3 maximum medical improvement and restricting her from heavy work activity, with no “repetitive 4 bending, stooping, lifting in regard to her lumbar spine.” (AR 21 (citing AR 280-86)). The ALJ 5 “noted that the restriction from heavy work and repetitive postural activities is consistent with 6 [his RFC] determination that [Plaintiff] was capable of light work with limited postural activities 7 as described.” (AR 21). Thus, according to Defendant, any error in considering Dr. Dugal and 8 Dr. Siddiqui’s opinions was harmless because “the worker’s compensation evidence was 9 generally consistent with a finding that Plaintiff could perform a range of light work.” (Doc No. 10 26 at 15). 11 This argument is inapposite. First, to the extent Defendant is implying that the ALJ 12 properly rejected Dr. Dugal and Dr. Siddiqui’s opinions because they were “temporary in nature,” 13 Plaintiff correctly argues that the Court is not permitted to consider this reasoning because it was 14 not offered by the ALJ in the decision. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 15 1226 (9th Cir. 2009) (the Court “review[s] the ALJ's decision based on the reasoning and factual 16 findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the 17 adjudicator may have been thinking.”). Moreover, the Court’s review of the record indicates that 18 Dr. Charles limited Plaintiff to no repetitive lifting which arguably is not consistent with a light 19 RFC assessed by the ALJ, which “involves lifting no more than 20 pounds at a time with frequent 20 lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b); AR 286. 21 For all of these reasons, the Court cannot confidently conclude that the disability 22 determination would stay the same were the ALJ to fully credit the opinions of Dr. Dugal, Dr. 23 Siddiqui, or Dr. Charles. See Hill, 698 F.3d at 1161. The ALJ erred by failing to properly 24 evaluate the opinions of Dr. Dugal and Dr. Siddiqui. On remand, the ALJ must properly evaluate 25 their opinions along with the relevant medical opinion evidence. 26 B. Symptom Claims 27 An ALJ engages in a two-step analysis when evaluating a claimant’s testimony regarding 28 subjective pain or symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 1 The ALJ first must determine whether there is “objective medical evidence of an underlying 2 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 3 Id. (internal quotation marks omitted). “The claimant is not required to show that his impairment 4 could reasonably be expected to cause the severity of the symptom he has alleged; he need only 5 show that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 6 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 7 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the 8 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 9 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d 10 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are 11 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 12 undermines the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); Thomas v. Barnhart, 13 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility determination with 14 findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 15 discredit claimant’s testimony.”). “The clear and convincing [evidence] standard is the most 16 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 17 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 18 Here, the ALJ found Plaintiff’s medically determinable impairments could reasonably be 19 expected to cause some of the alleged symptoms; however, Plaintiff’s “statements concerning the 20 intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the 21 medical evidence and other evidence in the record.” for two reasons: (1) they are unsupported by 22 the objective evidence of record and (2) they are inconsistent with Plaintiff’s daily activities. (AR 23 19-23). 24 The ALJ’s entire finding regarding Plaintiff’s daily activities consists of the following: 25 “Claimant’s ability to do light housework, all personal needs, some shopping, easy-meal 26 preparation, and drive, are inconsistent with the alleged presence of a condition that would 27 preclude all work activity.” (AR 23). Plaintiff argues this was not a clear and convincing reason 28 to discount her symptom claims because her self-reported daily activities are consistent with her 1 alleged limitations. (Doc. No. 20 at 11-12). The Court agrees. The ALJ may consider a 2 claimant’s activities that undermine reported symptoms. Rollins v. Massanari, 261 F.3d 853, 857 3 (9th Cir. 2001). However, the Ninth Circuit has “repeatedly warned that ALJs must be especially 4 cautious in concluding that daily activities are inconsistent with testimony about pain, because 5 impairments that would unquestionably preclude work and all the pressures of a workplace 6 environment will often be consistent with doing more than merely resting in bed all day.” 7 Garrison, 759 F.3d at 1016; Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court 8 has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, 9 such as grocery shopping, driving a car, or limited walking for exercise, does not in any way 10 detract from her [testimony] as to her overall disability.”). 11 Here, in support of this finding, the ALJ generally cites Plaintiff’s reports in hearing 12 testimony and a pain questionnaire she filled out in November 2018 that she could do light 13 housework, attend to personal meals, do shopping, make easy meals, and drive. (AR 45-46, 208- 14 19). However, the ALJ did not consider Plaintiff’s testimony that she takes frequent breaks, only 15 drives short distances, and goes on short shopping trips with help from her son if she needs more 16 items; and her self-reports on the pain questionnaire that she has pain all the time, can only do 17 household chores or shopping for 10 minutes before she needs to stop, and needs assistance to 18 unload her car, carry bags, move things around the house, and do yardwork. (AR 46, 208-10). 19 As noted by Plaintiff, she “did not testify to an unimpaired ability to do household chores, self- 20 care, and errands, but that she has limited ability to perform these tasks and frequently needs to 21 rest. She alleged specifically that her inability to rest between tasks is the reason she could not 22 return to work.” (Doc. No. 20 (citing AR 48)). The ALJ cited no evidence suggesting that the 23 limited activities cited in the decision were performed by Plaintiff in a manner transferable to a 24 work setting, particularly with regard to Plaintiff’s need for regular breaks, nor did the ALJ 25 describe activities that contradict her reported symptom claims. Orn v. Astrue, 495 F.3d 625, 639 26 (9th Cir. 2007). Thus, this is not substantial evidence to support the ALJ's reasoning. 27 Furthermore, in considering Plaintiff’s symptom claims, the ALJ must specifically 28 identify the statements he or she finds not to be credible, and the evidence that allegedly 1 undermines those statements. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “To 2 ensure that our review of the ALJ’s credibility determination is meaningful, and that the 3 claimant’s testimony is not rejected arbitrarily, we require the ALJ to specify which testimony she 4 finds not credible, and then provide clear and convincing reasons, supported by the evidence in 5 the record, to support that credibility determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 494 6 (9th Cir. 2015) (noting the ALJ did not specifically identify any inconsistencies between the 7 claimant’s testimony and the record; rather, “she simply stated her non-credibility conclusion and 8 then summarized the medical evidence supporting her RFC determination.”). Here, the ALJ did 9 not identify the specific testimony that he found not to be credible, nor did he offer explanations 10 for why the cited evidence of Plaintiff’s ability to perform basic activities of daily living 11 undermines Plaintiff’s symptom claims, particularly as to her need to take frequent breaks. Thus, 12 the ALJ’s finding that Plaintiff’s daily activities were inconsistent with her claimed limitations 13 was not a clear and convincing reason, supported by substantial evidence, to discount her 14 symptom claims. 15 Second, the ALJ found Plaintiff’s symptom claims are unsupported by “the objective 16 evidence of record,” including, but not limited to, ongoing MRI imaging of the lumbar spine that 17 resulted in diagnoses of chronic lumbar radiculopathy, annular ligament tear, spondylolisthesis 18 with 5 mm displacement at L4-5, chronic thoracic spine sprain, and grade I spondylolisthesis with 19 a right L5-S1 herniated disc. (AR 21-22). However, regardless of whether the ALJ erred in 20 finding Plaintiff’s symptom claims were not corroborated by objective evidence, it is well-settled 21 in the Ninth Circuit that an ALJ may not discredit a claimant’s pain testimony and deny benefits 22 solely because the degree of pain alleged is not supported by objective medical evidence. Rollins, 23 261 F.3d at 857 (emphasis added))); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); 24 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). As discussed above, the additional reason 25 given by the ALJ for discounting Plaintiff’s symptom claims was not supported by substantial 26 evidence. Thus, because lack of corroboration by the objective evidence cannot stand alone as a 27 basis for rejecting Plaintiff’s symptom claims, the ALJ’s finding is inadequate. 28 The Court concludes that the ALJ did not provide clear and convincing reasons, supported 1 by substantial evidence, for rejecting Plaintiff’s symptom claims. On remand, the ALJ must 2 reconsider Plaintiff’s symptom claims. 3 C. Remedy 4 The Court finds that further administrative proceedings are appropriate. See Treichler v. 5 Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) (remand for benefits is not 6 appropriate when further administrative proceedings would serve a useful purpose). Here, the 7 ALJ improperly considered the medical evidence of record, which calls into question whether the 8 assessed RFC, and resulting hypothetical propounded to the vocational expert, are supported by 9 substantial evidence. “Where,” as here, “there is conflicting evidence, and not all essential 10 factual issues have been resolved, a remand for an award of benefits is inappropriate.” Treichler, 11 775 F.3d at 1101. Instead, the undersigned recommends remanding this case for further 12 proceedings. On remand, the ALJ should reevaluate all relevant medical opinions, as well as 13 Plaintiff’s symptom claims. If necessary, the ALJ should order additional consultative 14 examinations and, if appropriate, take additional testimony from medical experts. The ALJ 15 should conduct a new sequential analysis, reassess Plaintiff’s RFC and, if necessary, take 16 additional testimony from a vocational expert which includes all of the limitations credited by the 17 ALJ. 18 Accordingly, it is RECOMMENDED: 19 Plaintiff’s Motion for Summary Judgment (Doc. No. 20) be GRANTED. Pursuant to 20 sentence four of 42 U.S.C.§ 405(g), the Court REVERSE the Commissioner’s decision and 21 REMAND this case back to the Commissioner of Social Security for further proceedings 22 consistent with this Order. 23 NOTICE TO PARTIES 24 These findings and recommendations will be submitted to the United States district judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 26 days after being served with these findings and recommendations, a party may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendations.” Parties are advised that failure to file objections within the 1 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 Dated: September 26, 2022 ooo. Zh. fared Hack 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15