1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 ELIZABETH JOAN RAMOS, 8 Case No. 1:22-cv-00007-SKO Plaintiff, 9 v. ORDER ON PLAINTIFF’S SOCIAL 10 SECURITY COMPLAINT KILOLO KIJAKAZI, 11 Acting Commissioner of Social Security, 12 Defendant. (Doc. 1) 13 _____________________________________/ 14 15 16 I. INTRODUCTION 17 On December 30, 2021, Plaintiff Elizabeth Joan Ramos (“Plaintiff”) filed a complaint 18 under 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social 19 Security (the “Acting Commissioner” or “Defendant”) denying her application for disability 20 insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). (Doc. 1.) The 21 matter is currently before the Court on the parties’ briefs, which were submitted, without oral 22 argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.1 23 II. BACKGROUND 24 Plaintiff was born on March 25, 1965, completed high school and can communicate in 25 English. (Administrative Record (“AR”) 19, 49, 60, 83, 211, 213, 219, 229.) Plaintiff filed a claim 26 for DIB on November 14, 2019, alleging she became disabled on March 13, 2019, due to “COPD, 27 28 1 bilateral extremity with Medina, hp, and diabetes.” (AR 49, 50, 60, 61, 212, 229.) 2 A. Relevant Evidence of Record2 3 In August 2019, Plaintiff presented for an appointment to address her chronic obstructive 4 pulmonary disease (COPD). She reported persistent shortness of breath and tightness in her chest. 5 (AR 415.) She was treated with inhalers and was advised to continue using supplemental oxygen. 6 (AR 416–17.) Plaintiff again complained of shortness of breath in September 2019. (AR 395. See 7 also AR 426.) She was assessed with shortness of breath “with rest and activity off/on.” (AR 396.) 8 Plaintiff was referred to Vijai Daniel, M.D. in February 2020 for management of COPD. 9 (AR 459–61.) She reported recurrent cough, dyspnea3, waking up constantly at night with 10 difficulty breathing, and daytime sleepiness. (AR 459.) Dr. Daniel assessed Plaintiff with “severe 11 dyspnea.” (AR 460, 461.) 12 In March 2020, Plaintiff presented for a follow up appointment with Dr. Daniel with the 13 same symptomology. (AR 496–99.) After reviewing Plaintiff’s overnight oximetry, Dr. Daniel 14 assessed “nocturnal hypoxia requiring oxygen.” (AR 497.) Plaintiff was again assessed with 15 severe dyspnea. (AR 498.) 16 In April 2020, Dr. Daniel completed a medical source statement. (AR 491–94.) He found 17 Plaintiff’s symptoms of dyspnea limit her to: walking no more than one to two blocks without rest 18 or severe pain; standing 20 minutes to one hour at one time; sitting about four hours in an eight– 19 hour workday; standing and/or walking less than two hours in an eight–hour workday; to 20 “occasionally” lifting and/or carrying up 10 pounds; never stooping, crouching/squatting, climbing 21 stairs, or climbing ladders. (AR 491–93.) Dr. Daniel found Plaintiff was likely to be “off task” 22 five percent of an eight–hour workday, capable of low-stress work only due to severe dyspnea, and 23 likely to have “good days” and “bad days” resulting in about four unplanned absences per month. 24 (AR 493.) 25 Plaintiff presented for a follow up with Dr. Daniel in May 2020. (AR 648–51.) She 26 reported the same symptoms as prior appointments. (AR 648.) She was assessed with severe 27 2 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 28 contested issues. 1 dyspnea and given a new prescription for oxygen and a nebulizer. (AR 650.) In August 2020, Dr. 2 Daniel prescribed Plaintiff a portable oxygen device. (AR 654.) 3 In October 2020, the telemedicine treater noted Plaintiff sounded like she had “[shortness 4 of breath] on the phone.” (AR 637.) Plaintiff complained of shortness of breath and wheezing. 5 (AR 640.) 6 Plaintiff presented for a cardiovascular evaluation with Michael L. Krueger, D.O., in 7 January 2021. (AR 553–55.) She reported shortness of breath with exertion. (AR 553.) Upon 8 examination, Dr. Krueger noted decreased breath sounds bilaterally. (AR 554.) 9 B. Administrative Proceedings 10 The Commissioner denied Plaintiff’s application for benefits initially on March 10, 2020, 11 and again on reconsideration on May 21, 2020. (AR 89–92, 100–105.) Consequently, Plaintiff 12 requested a hearing before an Administrative Law Judge (“ALJ”). (AR 106–07.) The ALJ 13 conducted a hearing on May 5, 2021. (AR 12–48.) Plaintiff appeared at the hearing 14 telephonically with her attorney and testified as to her alleged disabling conditions and work 15 history. (AR 18–29.) 16 1. Plaintiff’s Testimony 17 Plaintiff testified that her last job was in a call center where she “spoke a lot,” and she can 18 no longer perform that job because she “run[s] out of breath.” (AR 19.) She uses oxygen at 19 nighttime and during the daytime when she runs short of breath, which is usually three to four 20 days per week. (AR 20.) Plaintiff testified that her need for daytime oxygen arises when she tries 21 to do too much and “moves too fast,” and that heat, aerosol spray, and dust in the air adversely 22 affects her breathing, including coughing and shortness of breath. (AR 20–21.) According to 23 Plaintiff, she uses daytime oxygen for about an hour once symptoms start, and in 15-to-20-minute 24 intervals thereafter when shortness of breath recurs. (AR 22.) She testified that “talking too 25 much” causes shortness of breath, and that she runs out of breath after talking for two minutes. 26 (AR 22.) She also runs out of breath taking a shower. (AR 26.) 27 Plaintiff testified that she has a friend that will come over and help with some of the 28 housework such as sweeping, mopping, and taking out trash. (AR 26–27.) She can perform 1 “light” chores such as washing dishes, make her bed, and vacuum her small residence, but not 2 daily. (AR 26–27.) Plaintiff stated she uses a nebulizer two or three times a week because she 3 tries to use inhalers first. (AR 29.) 4 2. Vocational Expert’s Testimony 5 A Vocational Expert (“VE”) also testified at the hearing that Plaintiff had the following 6 past work as: an enumerator for the Census Bureau, Dictionary of Operational Titles (DOT) code 7 205.367-054, which is light work per the DOT and as performed, with a specific vocational 8 preparation (SVP)4 of 2; a data entry clerk, DOT code 203.582-054, which is sedentary work and 9 SVP 4; an inventory clerk, DOT code 222.387-022, which is medium work per the DOT and light 10 as performed, with an SVP 4; and call center customer service representative, DOT code 239.362- 11 014, sedentary work with an SVP 5. (AR 36–38.) 12 The ALJ asked the VE to consider a person of Plaintiff’s age, education, and with his work 13 experience and posed a series of hypotheticals about this person. (AR 38–.) The VE was to assume 14 this person can lift and carry 10 pounds occasionally and less than 10 pounds frequently (AR 38), 15 and can stand and walk for 15 minutes at a time and for two hours total (AR 38). The person: can 16 sit for six hours; can occasionally climb stairs and ramps, stoop, crouch, kneel, and crawl, but 17 cannot climb ladders, ropes, or scaffolds; cannot have concentrated exposure to pulmonary irritants 18 such as fumes, odors, dusts, gases, and poorly ventilated environments; cannot have concentrated 19 exposure to extreme cold, extreme heat, humidity, and hazards including unprotected heights and 20 moving machinery; cannot operate heavy machinery or drive; and the can frequently handle, finger, 21 and feel bilaterally. (AR 38–39.) The VE testified that such a person could perform Plaintiff’s 22 past work of customer service representative. (AR 39–40.) The VE further testified that such 23 person could perform other sedentary, SVP 2 jobs in the national economy, such as carding 24 machine operator; DOT code 681-685-030; final assembler of optical goods, DOT code 713.687- 25 018; dowel inspector; DOT code 669.687-014; nut sorter, DOT code 521-687-086; and table 26 4 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in 28 the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level 1 worker; DOT code 739.587-182. (AR 43–44.) No work would be available, however, if the person 2 were limited to occasionally fingering, handling, and feeling bilaterally or were to miss one day a 3 month on a regular basis. (AR 44.) 4 Plaintiff’s attorney posed a hypothetical involving a person who was limited to occasional, 5 10-minute increments of talking whether in person or over the phone. (AR 45–46.) The VE 6 testified that the past job of customer service representative would be eliminated, but not the other 7 five jobs identified. (AR 45–46.) The VE testified that a person who would be off task 15% of the 8 workday would have none of the previously identified work available. (AR 46.) 9 C. The ALJ’s Decision 10 In a decision dated June 1, 2021, the ALJ found that Plaintiff was not disabled, as defined 11 by the Act. (AR 75–84.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 12 § 404.1520. (AR 77–84.) The ALJ decided that Plaintiff met the insured status requirements of 13 the Act through September 30, 2021, and she had not engaged in substantial gainful activity since 14 March 13, 2019, the alleged onset date (step one). (AR 77.) At step two, the ALJ found Plaintiff’s 15 following impairments to be severe: COPD with moderate persistent asthma and obstructive sleep 16 apnea, on nighttime supplemental oxygen for nocturnal hypoxia; congestive heart failure, with 17 cardiomyopathy, tachycardia, and hypertension; morbid obesity in bariatric care; and venous status. 18 (AR 77–78.) Plaintiff did not have an impairment or combination of impairments that met or 19 medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the 20 Listings”) (step three). (AR 78–80.) 21 The ALJ then assessed Plaintiff’s residual functional capacity (RFC)5 and applied the 22 assessment at steps four and five. See 20 C.F.R. § 404.1520(a)(4) (“Before we go from step three 23 to step four, we assess your residual functional capacity . . . . We use this residual functional 24
25 5 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES 26 II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8P (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an 27 individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 1 capacity assessment at both step four and step five when we evaluate your claim at these steps.”). 2 The ALJ determined that Plaintiff had the RFC: 3 to perform sedentary work as defined in 20 CFR [§] 404.1567(a) except with additional limitations. Specifically, [Plaintiff] can lift and carry 10 pounds 4 occasionally, less than 10 pounds frequently; can stand and walk 15 minutes at a time and for 2 hours total and can sit for 6 hours; can occasionally climb stairs and 5 ramps, stoop, crouch, kneel and crawl; but cannot climb ladders, ropes or scaffolds. She cannot have concentrated exposure to pulmonary irritants, such as fumes, 6 odors, dusts, gases, and poorly ventilated environments. She cannot have 7 concentrated exposure to extreme cold, extreme heat, humidity and hazards, including unprotected heights and moving machinery. She cannot drive or operate 8 heavy machinery. She can frequently finger, handle and feel bilaterally. 9 (AR 80–81.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 10 expected to cause the alleged symptoms[,]” the ALJ rejected Plaintiff’s subjective testimony as 11 “not entirely consistent with the medical evidence and other evidence in the record for the reasons 12 explained in this decision.” (AR 81.) 13 The ALJ determined that, given her RFC, Plaintiff could perform her past relevant work as 14 a call center customer service representative (step four). (AR 83–84.) The ALJ concluded that 15 Plaintiff was not disabled from March 13, 2019, through the date of the decision. (AR 84.) 16 Plaintiff sought review of this decision before the Appeals Council, which denied review 17 on October 28, 2021. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the 18 Commissioner. 20 C.F.R. § 404.981. 19 III. LEGAL STANDARD 20 A. Applicable Law 21 An individual is considered “disabled” for purposes of disability benefits if they are unable 22 “to engage in any substantial gainful activity by reason of any medically determinable physical or 23 mental impairment which can be expected to result in death or which has lasted or can be expected 24 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 25 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 26 impairment or impairments are of such severity that [they] are not only unable to do [their] previous 27 work but cannot, considering [their] age, education, and work experience, engage in any other kind 28 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 1 “The Social Security Regulations set out a five-step sequential process for determining 2 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 3 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided 4 the following description of the sequential evaluation analysis: 5 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 6 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 7 so, the ALJ proceeds to step three and considers whether the impairment or combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 8 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 9 not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing [their] past relevant work. If so, the claimant is not disabled. If not, the 10 ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, the 11 claimant is not disabled. If not, the claimant is disabled. 12 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 13 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 14 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 15 “The claimant carries the initial burden of proving a disability in steps one through four of 16 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 17 1989)). “However, if a claimant establishes an inability to continue [their] past work, the burden 18 shifts to the Commissioner in step five to show that the claimant can perform other substantial 19 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 20 B. Scope of Review 21 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 22 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 23 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” means 24 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 25 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 26 305 U.S. 197, 229 (1938)). “Substantial evidence is more than a mere scintilla but less than a 27 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 28 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 1 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed 2 only if that decision is not supported by substantial evidence or it is based upon legal error.” 3 Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will uphold the 4 ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.” Id.; 5 see, e.g., Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible 6 to more than one rational interpretation, the court may not substitute its judgment for that of the 7 Commissioner.”) (citations omitted). 8 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for 9 that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court 10 must determine whether the Commissioner applied the proper legal standards and whether 11 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 12 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be 13 affirmed simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 14 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must 15 ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts 16 from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 17 1993)). 18 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 19 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 20 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 21 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 22 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Robbins v. Soc. Sec. Admin., 23 466 F.3d 880, 885 (9th Cir. 2006)). “[T]he burden of showing that an error is harmful normally 24 falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 25 (2009) (citations omitted). 26 IV. DISCUSSION 27 Plaintiff contends that the ALJ’s partial rejection of Dr. Daniel’s medical opinion was not 28 supported by substantial evidence. (Doc. 15 at 10–16; Doc. 19 at 2–9.) Plaintiff further asserts 1 that the ALJ erred in evaluating Plaintiff’s credibility. (Doc. 15 at 16–21; Doc. 19 at 9–14.) 2 Plaintiff asks this Court to remand for payment of benefits, or alternatively for further proceedings. 3 (See id.) 4 The Commissioner contends that the ALJ reasonably considered Dr. Daniel’s opinion, and 5 that substantial evidence supports the ALJ’s evaluation of Plaintiff’s symptoms. (Doc. 18.) 6 A. The ALJ Failed to Articulate Specific, Clear and Convincing Reasons to Discredit Plaintiff’s Shortness of Breath Complaints 7 1. Legal Standard 8 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ 9 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 10 the ALJ must determine whether the claimant has presented objective medical evidence of an 11 underlying impairment that could reasonably be expected to produce the pain or other symptoms 12 alleged. Id. The claimant is not required to show that her impairment “could reasonably be 13 expected to cause the severity of the symptom she has alleged; she need only show that it could 14 reasonably have caused some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 15 F.3d 1028, 1036 (9th Cir. 2007)). If the claimant meets the first test and there is no evidence of 16 malingering, the ALJ can only reject the claimant’s testimony about the severity of the symptoms 17 if he gives “specific, clear and convincing reasons” for the rejection.6 Id. As the Ninth Circuit 18 has explained: 19 The ALJ may consider many factors in weighing a claimant’s credibility, 20 including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, and 21 other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course 22 of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 23 24 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 25 Comm’r of Soc. Sec., 554 F.3d 1219, 1226–27 (9th Cir. 2009); 20 C.F.R. § 404.1529. Other 26 factors the ALJ may consider include a claimant’s work record and testimony from physicians 27
28 6 The Court rejects the Acting Commissioner’s contention that a lesser standard of review applies. (See Doc. 18 at 5 1 and third parties concerning the nature, severity, and effect of the symptoms of which he 2 complains. Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 3 The clear and convincing standard is “not an easy requirement to meet,” as it is “‘the most 4 demanding required in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 5 2014) (quoting Moore v. Comm’r of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 6 General findings are not sufficient to satisfy this standard; the ALJ “‘must identify what testimony 7 is not credible and what evidence undermines the claimant’s complaints.’” Burrell v. Colvin, 775 8 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as 9 amended Apr. 9, 1996)). 10 2. Analysis 11 The ALJ found Plaintiff’s “medically determinable impairments could reasonably be 12 expected to cause the alleged symptoms.” (AR 24.) The ALJ also found that “[Plaintiff’s] 13 statements concerning the intensity, persistence and limiting effects of these symptoms are not 14 entirely credible.” (AR 24.) Since the ALJ found Plaintiff’s “medically determinable 15 impairments could reasonably be expected to cause the alleged symptoms,” the only remaining 16 issue is whether the ALJ provided “specific, clear and convincing reasons” for Plaintiff’s adverse 17 credibility finding. See Vasquez, 572 F.3d at 591. 18 The ALJ’s evaluation of Plaintiff’s subjective testimony is as follows: The undersigned considered [Plaintiff’s] complaints that she needs to elevate her 19 legs, but while her records showed venous status changes, they did not document 20 in her treatment records a recommendation that she elevate her legs a specific portion of the day or confirm that she actually does so, and therefore the record 21 does not support any need to elevate her legs that would not be accommodated within customary break or lunch periods. In addition, the undersigned could not 22 find documentation she needed a cane or walker, and in fact, the undersigned notes she was able to ambulate without difficulty on recent examination (Ex. 19F at 60). 23 The undersigned notes a lack of major mobility complications of the type 24 contemplated under Social Security Ruling 19-2p or documented as a result of her obesity, and further notes a lack of major diabetic complications of the type 25 contemplated under Social Security Ruling 14-2p. 26 (AR 83.) While the ALJ specifically notes Plaintiff’s complaints regarding leg elevation and 27 limited ambulation, nowhere in the decision does the ALJ discuss the functional limitations that 28 Plaintiff identified at the administrative hearing related to her shortness of breath symptoms. 1 Specifically, and as set forth above, Plaintiff testified that excessive talking causes her to run out 2 of breath, such that she can no longer perform her prior work as a call center customer 3 representative. (AR 19–22.) She further testified she uses daytime oxygen three to four days per 4 week to treat her breathing problems. (AR 20.) 5 Notably, the ALJ expressly endorsed the severity of Plaintiff’s shortness of breath 6 symptoms, finding, during the evaluation of Dr. Daniel’s opinion evidence, that the “record as a 7 whole . . . showed significant dyspnea on exertion.”7 (AR 83.) But the ALJ did not proffer any 8 reason—specific, clear, convincing, or otherwise—for the implicit rejection of Plaintiff’s hearing 9 testimony that shortness of breath (dyspnea) impaired her ability to work. In so doing, the ALJ 10 failed to set forth findings “sufficiently specific to allow a reviewing court to conclude the ALJ 11 rejected the claimant’s testimony on permissible grounds.” Moisa v. Barnhart, 367 F.3d 882, 885 12 (9th Cir. 2004); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). 13 The Acting Commissioner asserts that the medical evidence “suggests [Plaintiff’s] 14 breathing issues were not as limited as her extreme allegations reflect.” (Doc. 18 at 8.) The 15 Court’s review is limited, however, to the rationale provided by the ALJ and cannot consider post- 16 hoc rationalizations and inferences advanced by the Acting Commissioner to justify the ALJ’s 17 rejection of Plaintiff’s subjective testimony. See Bray, 554 F.3d at 1225 (“Long-standing 18 principles of administrative law require [the court] to review the ALJ’s decision based on the 19 reasoning and factual findings offered by the ALJ—not post hoc rationalizations that attempt to 20 intuit what the adjudicator may have been thinking.”); Connett v. Barnhart, 340 F.3d 871, 874 21 (9th Cir. 2003) (noting that a reviewing court “is constrained to review the reasons the ALJ 22 asserts”). Here, the ALJ did not identify any objective medical evidence (or anything else) as a 23 reason for rejecting Plaintiff’s shortness of breath complaints.8 24 Because the ALJ failed to set forth clear and convincing reasons supported by substantial 25 evidence in the record, the credibility determination cannot be upheld. The error was not harmless 26 7 The Court notes that evidence of Plaintiff’s dyspnea (shortness of breath), and treatment therefor, can be found 27 throughout the medical record. (See, e.g, AR 460, 461, 491, 498, 553, 554, 640, 650, 654.) 8 Even if they had, an ALJ may not base an adverse credibility determination solely upon the medical evidence. Fair 28 v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Burch, 1 because it was not “inconsequential to the ultimate nondisability determination.” Tommasetti, 2 533 F.3d at 1038. If, after evaluating all of Plaintiff’s testimony, the ALJ assesses a more 3 restrictive RFC, this could influence the ultimate nondisability determination (see, e.g., AR 45– 4 46 (testimony by the VE that a limitation to occasional, 10-minute increments of talking would 5 eliminate Plaintiff’s past job of call center customer service representative).) 6 B. The ALJ’s Error Warrants Remand for Further Proceedings 7 When an ALJ commits error that is not harmless, “[t]he decision whether to remand for 8 further proceedings or simply to award benefits is within the discretion of [the] court.” McAllister 9 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th 10 Cir. 1987)). “Remand for further administrative proceedings is appropriate if enhancement of the 11 record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Furthermore, 12 “[i]f additional proceedings can remedy defects in the original administrative proceeding, a social 13 security case should be remanded.” Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). On 14 the other hand, “where the record has been fully developed such that further administrative 15 proceedings would serve no useful purpose, the district court should remand for an immediate 16 award of benefits.” Benecke, 379 F.3d at 593. See also Dominguez v. Colvin, 808 F.3d 403, 407 17 (9th Cir. 2016). 18 Here, the ALJ committed legal error that was not harmless, but, as Plaintiff recognizes (Doc. 19 15 at 22), this is not a case where further administrative proceedings would lack purpose. The 20 ALJ failed to sufficiently articulate their credibility analysis with respect to Plaintiff’s shortness 21 of breath. This failure can be remedied on remand. See, e.g., Bunnell v. Sullivan, 947 F.2d 341, 22 348 (9th Cir. 1991) (affirming the district court’s order remanding for further proceedings where 23 the ALJ failed to explain with sufficient specificity the basis for rejecting the claimant’s 24 testimony); Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995) (remanding the case “for further 25 proceedings evaluating the credibility of [the claimant’s] subjective complaints . . . .”); Voisard v. 26 Berryhill, No. 2:17-CV-1023-EFB, 2018 WL 4488474, at *5 (E.D. Cal. Sept. 19, 2018) (“That the 27 ALJ failed to provide sufficient reasons for discounting plaintiff’s subjective testimony in this 28 1 instance does not compel a finding that he is unable do so.”). Notably, although the ALJ failed to 2 properly reject Plaintiff’s credibility using the proper legal standards, it is not clear that Plaintiff 3 would be found to be disabled if her testimony were credited as true. Therefore, the Court will 4 order the matter remanded for the ALJ to provide sufficient findings. 5 C. The Court Declines to Determine Plaintiff’s Remaining Assertion of Error 6 As the Court finds that remand is appropriate for the ALJ to reconsider Plaintiff’s subjective 7 complaints and reassess Plaintiff’s RFC, the Court need not address Plaintiff’s allegation of error 8 concerning the ALJ’s current RFC assessment and its failure to account for limitations opined by 9 Dr. Daniel. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the 10 case to the ALJ for the reasons stated, we decline to reach [plaintiff’s] alternative ground for 11 remand.”); see also Rendon G. v. Berryhill, No. EDCV 18-0592-JPR, 2019 WL 2006688, at *8 12 (C.D. Cal. May 7, 2019); Harris v. Colvin, No. 13-cv-05865 RBL, 2014 WL 4092256, at *4 (W.D. 13 Wash. Aug. 11, 2014); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 1153 n.7 (C.D. 14 Cal. 2008) (“[The] Court need not address the other claims plaintiff raises, none of which would 15 provide plaintiff with any further relief than granted, and all of which can be addressed on 16 remand.”). 17 V. CONCLUSION AND ORDER 18 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 19 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further 20 proceedings consistent with this Order. 21 The Clerk of this Court is DIRECTED to enter judgment in favor of Plaintiff Elizabeth Joan 22 Ramos and against Defendant Kilolo Kijakazi, Acting Commissioner of Social Security. 23 IT IS SO ORDERED. 24 25 Dated: April 24, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 26
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