Sullivan v. Kijakazi

• Court: District Court, S.D. California
• Decided: March 25, 2024
• Docket: 3:23-cv-00480
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RENEE S., Case No.: 3:23-cv-00480-AHG 12 Plaintiff, ORDER RESOLVING JOINT MOTION FOR JUDICIAL REVIEW 13 v. OF FINAL DECISION OF THE 14 MARTIN O’MALLEY, Acting COMMISSIONER OF SOCIAL Commissioner of Social Security,1 SECURITY 15

16 [ECF No. 14] 17 18 Defendant. 19 20 21 22 23 24 25

26 1 Martin O’Malley became the Commissioner of the Social Security Administration on 27 December 20, 2023. Although Plaintiff originally brought this action against Former Acting Commissioner Kilolo Kijakazi, this case may properly proceed against Martin 28 1 Plaintiff Renee S. (“Plaintiff”) filed this action on March 16, 2023, seeking review 2 of the Commissioner of Social Security’s (“Commissioner”) denial of her application for 3 disability insurance benefits. ECF No. 1. The parties consented to proceed before a 4 Magistrate Judge on March 20, 2023. ECF No. 4. Pursuant to the Court’s Scheduling 5 Order, the parties filed a Joint Motion for Judicial Review on October 12, 2023, stating 6 their positions on the disputed issues in the case. ECF No. 14. The Court has taken the Joint 7 Motion under submission without oral argument. 8 For the reasons set forth below, the Court resolves the Joint Motion in Plaintiff’s 9 favor, GRANTS Plaintiff’s motion to remand, and REMANDS this action for calculation 10 of benefits to be awarded to Plaintiff. 11 I. BACKGROUND 12 Plaintiff filed an application for disability insurance benefits pursuant to Title II of 13 the Social Security Act on January 9, 2020, alleging disability due to the impairment of 14 peripheral neuropathy with an alleged disability onset date of December 11, 2019. AR 128, 15 232-35. The Commissioner denied Plaintiff’s claim for benefits upon initial review on 16 March 18, 2020, and again upon reconsideration on May 14, 2020. AR 128-49. On 17 August 27, 2020, Plaintiff requested a hearing before an Administrative Law Judge 18 (“ALJ”), which took place on May 6, 2021. AR 169-70, 63-104. 19 Notably, Plaintiff had filed a previous application for disability insurance benefits 20 on October 24, 2016, which was denied by a different ALJ on January 14, 2019. See AR 21 108-15. In the prior decision, the ALJ found that Plaintiff was capable of performing her 22 past relevant work as an administrative clerk and was therefore not disabled. AR 114-15. 23 Consequently, with respect to the unadjudicated period of disability alleged in Plaintiff’s 24 2020 application for benefits, the ALJ was required to apply a rebuttable presumption of 25 continuing nondisability pursuant to Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988) and 26 Soc. Sec. Ruling (“SSR”)2 97-4(9), 1997 WL 742758 (Dec. 3, 1997). Specifically, the 27

28 1 Ninth Circuit in Chavez explained that, since principles of res judicata apply to 2 administrative decisions, if a claimant has previously been denied disability benefits, “in 3 order to overcome the presumption of continuing nondisability arising from the first 4 administrative law judge’s findings of nondisability, [the claimant] must prove ‘changed 5 circumstances’ indicating a greater disability.” 844 F.2d at 693 (quoting Taylor v. Heckler, 6 765 F.2d 872, 875 (9th Cir. 1985)). 7 On July 30, 2021, the ALJ issued an unfavorable decision denying Plaintiff’s current 8 application, finding that she remained able to perform her past relevant work and had thus 9 not been disabled from her alleged disability onset date of December 11, 2019 through the 10 date of the ALJ’s decision. AR 28-40. In that decision, the ALJ applied the rebuttable 11 presumption of continuing nondisability dictated by Chavez and SSR 94-7(9), but 12 concluded that Plaintiff had successfully rebutted the presumption by providing new 13 evidence to show “a changed circumstance material to the determination of disability[.]” 14 AR 29. Therefore, the ALJ did not give res judicata effect to the findings of the prior ALJ 15 decision. AR 29. Nonetheless, as already stated, the ALJ found Plaintiff not disabled at 16 step four for the same reason underlying the previous nondisability finding—that is, that 17 she remained capable of performing her past relevant work as a customer service clerk.3 18 AR 39-40. 19 20

21 interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 22 F.3d 1195, 1202 n.1 (9th Cir. 2001) (citations omitted). SSR 97-4(9) is simply the agency’s 23 ruling regarding how to apply Chavez to disability cases brought within the Ninth Circuit.

24 3 In the prior ALJ decision, Plaintiff’s past relevant work was classified as an 25 “Administrative Clerk” under DOT listing 219.362-010. AR 114. Based on the testimony of the vocational expert during the May 6, 2021 hearing, however, the ALJ classified the 26 same job as a “Customer Service Clerk” under DOT listing 299.367-010 in the opinion at 27 issue here. AR 39. This difference appears immaterial. Both jobs are light and semi-skilled with a Specifical Vocational Preparation level of 4, and neither party has disputed the DOT 28 1 Plaintiff requested review of the ALJ’s decision by the Appeals Council on 2 September 23, 2021. AR 227-231. When the Appeals Council denied Plaintiff’s request 3 for review on February 1, 2023, the ALJ’s decision became the final decision of the 4 Commissioner. 42 U.S.C. § 405(h). Plaintiff timely appealed the denial to this Court for 5 federal judicial review on March 16, 2023. ECF No. 1; 42 U.S.C. § 405(g). 6 II. STANDARD OF REVIEW 7 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the 8 Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed 9 only if it is not supported by substantial evidence or if it is based upon the application of 10 improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). 11 Substantial evidence means “‘such relevant evidence as a reasonable mind might 12 accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 13 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The 14 standard requires “more than a mere scintilla” of evidence, “but less than a preponderance.” 15 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). The standard is 16 “highly deferential.” Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 17 2009). Thus, “‘[w]here evidence is susceptible to more than one rational interpretation,’ 18 the ALJ’s decision should be upheld.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 19 (quoting Burch v. Barnhart, 400 F.3d at 676, 679 (9th Cir. 2005)). However, the Court 20 “must consider the entire record as a whole, weighing both the evidence that supports and 21 the evidence that detracts from the Commissioner’s conclusion, and may not affirm simply 22 by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 23 1009 (9th Cir. 2014) (internal quotation marks omitted)). The ALJ is responsible for 24 determining credibility and resolving conflicts in medical testimony and is also responsible 25 for resolving any ambiguities in the record. Magallanes v. Bowen, 881 F.2d 747, 750 (9th 26 Cir. 1989). The Court will “review only the reasons provided by the ALJ in the disability 27 determination and may not affirm the ALJ on a ground upon which he did not rely.” Id.; 28 see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which an 1 administrative order must be judged are those upon which the record discloses that its 2 action was based.”). 3 The Court may also overturn the Commissioner’s denial of benefits if the denial is 4 based on legal error. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 929 (9th Cir. 2014). 5 However, even if the Court finds the decision was based on legal error, a court may not 6 reverse an ALJ’s decision if the error is harmless, “which exists when it is clear from the 7 record that the ALJ’s error was inconsequential to the ultimate nondisability 8 determination.” Id. at 932 (internal quotations and citation omitted); see also Burch, 400 9 F.3d at 679 (citation omitted). 10 III. SUMMARY OF ALJ’S FINDINGS 11 A. The Five-Step Evaluation Process 12 The ALJ follows a five-step sequential evaluation process in assessing whether a 13 claimant is disabled. 20 C.F.R. § 416.920;4 Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th 14 Cir. 1999). In the first step, the Commissioner must determine whether the claimant is 15 currently engaged in substantial gainful activity; if so, the claimant is not disabled, and the 16 claim is denied. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 17 If the claimant is not currently engaged in substantial gainful activity, the second 18 step requires the ALJ to determine whether the claimant has a “severe” impairment or 19 combination of impairments significantly limiting her ability to do basic work activities, 20 and which has lasted or is expected to last for a continuous period of at least 12 months; if 21

22 4 Unless otherwise noted, all references to the agency regulations herein are to the 23 regulations in effect at the time of the ALJ’s decision. See, e.g., SSR 16-3, 2016 SSR LEXIS 4 n.27 (S.S.A. 2016) (“When a Federal court reviews our final decision in a claim, 24 we expect the court will review the final decision using the rules that were in effect at the 25 time we issued the decision under review.”); Anne B. v. Comm’r, Soc. Sec. Admin., No. 1:18-CV-02146-HZ, 2019 WL 6976034, at *8 (D. Or. Dec. 20, 2019) (collecting cases for 26 the proposition that “[t]he applicable regulations are those in effect at the time the ALJ 27 issued his decision”).

28 1 not, a finding of nondisability is made and the claim is denied. Id. See also 20 C.F.R. 2 § 404.1509 (setting forth the 12-month duration requirement). If the claimant has a 3 “severe” impairment or combination of impairments, the third step requires the ALJ to 4 determine whether the impairment or combination of impairments meets or equals an 5 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart 6 P, appendix 1; if so, disability is conclusively presumed, and benefits are awarded. 7 Lounsburry, 468 F.3d at 1114. 8 If the claimant’s impairment or combination of impairments does not meet or equal 9 an impairment in the Listing, the ALJ proceeds to the fourth step of the disability evaluation 10 process. The fourth step requires the ALJ to determine whether the claimant has sufficient 11 residual functional capacity (“RFC”) to perform her past work. Id. Therefore, the ALJ must 12 determine the claimant’s RFC before moving to step four. 13 An RFC is “an assessment of an individual’s ability to do sustained work-related 14 physical and mental activities in a work setting on a regular and continuing basis.” SSR 15 96-9p, 1996 WL 374184, at *1 (July 2, 1996). It reflects the most a claimant can do despite 16 her limitations. 20 C.F.R. § 404.1545(a)(1); Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 17 1996). An RFC assessment must include an individual’s functional limitations or 18 restrictions as a result of all of her impairments – even those that are not severe (see 20 19 C.F.R. § 404.1545(a)(1)-(2), (e)) – and must assess her “work-related abilities on a 20 function-by-function basis.” SSR 96-9p, 1996 WL 374184, at *1; see also Valentine, 574 21 F.3d at 690 (“an RFC that fails to take into account a claimant’s limitations is defective”). 22 An ALJ errs when he provides an incomplete RFC that ignores or discounts “significant 23 and probative evidence” favorable to a claimant’s position. Hill v. Astrue, 698 F.3d 1153, 24 1161-62 (9th Cir. 2012). 25 An RFC assessment is ultimately an administrative finding reserved to the ALJ. 26 20 C.F.R. § 404.1527(d)(2). However, an RFC determination must be based on all of the 27 relevant evidence, including the diagnoses, treatment, observations, and opinions of 28 medical sources, such as treating and examining physicians. 20 C.F.R. § 404.1545. A court 1 must uphold an ALJ’s RFC assessment when the ALJ has applied the proper legal 2 standards and substantial evidence in the record as a whole supports the decision. See 3 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). At step four of the disability 4 analysis, if the ALJ determines a claimant has sufficient RFC to perform past relevant 5 work, the claimant is not disabled, and the claim is denied. Drouin v. Sullivan, 966 F.2d 6 1255, 1257 (9th Cir. 1992). The claimant has the burden of proving that she is unable to 7 perform past relevant work at step four. Id. If the claimant meets this burden, a prima facie 8 case of disability is established. Id. 9 At step five, the burden then shifts to the ALJ to establish that the claimant is not 10 disabled because there is other work existing in “significant numbers” in the national or 11 regional economy the claimant can do, taking into account the claimant’s RFC, age, 12 education, and work experience. 20 C.F.R. § 404.1560(c)(1), (c)(2); see also 20 C.F.R. 13 § 404.1520(g)(1). The determination of this issue comprises the fifth and final step in the 14 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Tackett, 180 F.3d at 1099. 15 B. The ALJ’s Application of the Five-Step Process in This Case 16 At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful 17 activity since her alleged disability onset date of December 11, 2019. AR 31. At step two, 18 the ALJ determined that Plaintiff had the severe impairments of diabetes mellitus, 19 peripheral neuropathy, and obesity. AR 31. At step three, the ALJ determined that Plaintiff 20 did not have an impairment or combination of impairments that met or medically equaled 21 the severity of one of the impairments in the Listing, noting in particular that he had 22 considered Listings 9.00 and 11.14. AR 33. The ALJ further noted that he had considered 23 Plaintiff’s impairment of obesity pursuant to SSR 19-2p in making this determination. AR 24 33. See also SSR 19-2p, 2019 WL 2374244, at *4-*5 (May 20, 2019) (explaining that, 25 although obesity is not a listed impairment, the functional limitations caused by obesity 26 either alone or in combination with other impairments may medically equal a Listing; 27 accordingly, the ALJ must consider the limiting effects of obesity when assessing a 28 claimant’s RFC). 1 Between steps three and four, the ALJ determined that Plaintiff had the residual 2 functional capacity (“RFC”) to perform light work, as defined by 20 CFR § 404.1567(b), 3 with certain exertional and postural limitations. AR 34. Specifically, the ALJ determined 4 that Plaintiff: 5 . . . can lift and carry 20 pounds occasionally and 10 pounds frequently; and can stand and/or walk for 3 hours of an 8-hour day, and sit for 6 hours of an 6 8-hour day, with the option to sit or stand, to change her position every 15 7 minutes for 5 minutes, while remaining at the workplace; can never push or pull with the bilateral lower extremities; can never climb ladders, ropes, or 8 scaffolds; can never walk on uneven terrain; can occasionally balance, stoop, 9 kneel, crouch, crawl, and climb ramps and stairs; must avoid concentrated exposure to extreme cold, to extreme heat, and to vibration; and must avoid 10 even moderate exposure to workplace hazards, such as dangerous machinery 11 and unprotected heights. 12 AR 34. 13 At step four, based on Plaintiff’s RFC and the testimony of the vocational expert, 14 the ALJ concluded that Plaintiff is capable of performing her past relevant work as a 15 customer service clerk “as actually performed by [Plaintiff], but not as generally performed 16 in the national economy.” AR 40. Accordingly, the ALJ found Plaintiff was not disabled 17 at step four of the disability analysis and did not proceed to step five. 18 IV. DISCUSSION 19 Plaintiff brings three claims of error in the Joint Motion. First, Plaintiff argues that 20 substantial evidence does not support the ALJ’s finding that Plaintiff can perform her past 21 relevant work as actually performed but not as generally performed in the national 22 economy. ECF No. 14 at 6. Plaintiff argues that the record is devoid of any reports about 23 how her past relevant work was actually performed, and, moreover, that her testimony 24 regarding her past relevant work reflects that the job required standing and walking more 25 than three hours in an eight-hour day, in contrast to her RFC. Id. at 6-7. Although the ALJ 26 did not find that Plaintiff is able to perform her past relevant work as generally performed, 27 Plaintiff also notes that the limitation in her RFC to three hours standing and walking in an 28 eight-hour day would preclude such work as generally performed. Id. at 7. 1 Second, Plaintiff argues that the ALJ improperly rejected her subjective symptom 2 testimony. Id. at 10-14. Plaintiff asserts that the ALJ merely recited medical evidence 3 without explaining how the evidence conflicts with Plaintiff’s subjective testimony, and 4 that the ALJ repeatedly referred to issues of noncompliance regarding Plaintiff’s diabetes 5 management without consideration of the reason for noncompliance, i.e., changes in 6 Plaintiff’s insurance coverage. Id. at 11-13. In connection with this claim of error, Plaintiff 7 urges the Court to credit her testimony as true and remand her case for the immediate award 8 of benefits. Id. at 14. 9 Third, Plaintiff contends that she was denied due process because Plaintiff 10 repeatedly requested copies of certain exhibits in the record that included physicians’ 11 opinions that the ALJ found persuasive, but was instead provided incorrect exhibits that 12 pertained to her previous disability application filed in 2016. Id. at 16-17. Plaintiff argues 13 that remand is warranted to provide her the opportunity to review the correct state agency 14 medical determinations relied on by the ALJ. Id. at 17. 15 The Court will address each claim of error in turn. 16 A. Plaintiff’s Claim of Error Regarding the ALJ’s Step Four Finding 17 As discussed above, at step four, the ALJ must consider whether the plaintiff has 18 “the residual functional capacity to perform the requirements of [her] past relevant work[,]” 19 which is defined as work performed either as the claimant “actually performed it” or as it 20 is “generally performed in the national economy” within the past 15 years. See 20 C.F.R. 21 §§ 416.920(f), 416.960(b)(1)-(2). The plaintiff bears the burden of demonstrating that she 22 can no longer perform her past relevant work. 20 C.F.R. § 416.920(e); Pinto v. Massanari, 23 249 F.3d 840, 844 (9th Cir. 2001). However, “[a]lthough the burden of proof lies with the 24 claimant at step four, the ALJ still has a duty to make the requisite factual findings to 25 support his conclusion.” Id. To do so, the ALJ must compare the claimant’s RFC to the 26 physical and mental demands of the past relevant work. Id.; 20 C.F.R. §§ 416.920(e)-(f), 27 416.960(b). If the claimant retains the RFC to perform either “the actual functional 28 demands and job duties of a particular past relevant job” or “the functional demands and 1 job duties of the occupation as generally required by employers throughout the national 2 economy[,]” then she will be found not disabled. Pinto, 249 F.3d at 844; SSR 82-61, 1982 3 WL 31387, at *2 (Jan. 1, 1982). 4 Here, Defendant concedes that “the record is devoid of any reports of how Plaintiff’s 5 past relevant work was actually performed.” ECF No. 14 at 8-9. Therefore, substantial 6 evidence does not support the conclusion that Plaintiff can perform her past relevant work 7 as actually performed. Notwithstanding this concession that substantial evidence does not 8 support the ALJ’s conclusion, Defendant urges affirmance of the decision because the ALJ 9 “mistakenly wrote that Plaintiff could perform her past work as actually performed instead 10 of as generally performed[,] as all of the testimony suggested.” Id. at 9. Thus, Defendant 11 asks the Court to treat the ALJ’s finding that Plaintiff can perform her past work as actually 12 performed as a “scrivener’s error,” and to uphold the Commissioner’s decision on the basis 13 that substantial evidence supports the finding that Plaintiff is able to perform her past 14 relevant work as generally performed. 15 The Court is not, however, in a position to determine whether substantial evidence 16 supports the finding that Plaintiff can perform her past relevant work as generally 17 performed, because that is not what the ALJ concluded. Defendant points to no authority 18 that allows the Court to assume the ALJ made a scrivener’s error on the key outcome- 19 determinative question regarding the ultimate disability determination. Rather, the Court is 20 limited to determining whether the ALJ’s opinion is supported by substantial evidence and 21 free of legal error. See Pinto, 249 F.3d at 847-48. In Pinto, the Ninth Circuit held that an 22 ALJ “has a duty to make the requisite factual findings” to support a conclusion that a 23 claimant can perform past relevant work. Id. at 844. A failure to make those findings 24 prohibits meaningful judicial review, since a court “cannot affirm the decision of an agency 25 on a ground that the agency did not invoke in making its decision[.]” Id. at 847 (citation 26 omitted). 27 28 1 Moreover, when read in context, it is not clear that the ALJ’s decision was the result 2 of a mere scrivener’s error. Instead, the ALJ states the same erroneous conclusion not once, 3 but twice, in the decision: 4 Having been asked to assume a person with the same age, education, and work experience as the claimant, and a residual functional capacity 5 determined herein, the vocational expert testified that such an individual 6 would be able to perform the past relevant work of customer service clerk as actually performed by the claimant, but not as generally performed in the 7 national economy. 8 . . . In comparing the claimant’s residual functional capacity with the 9 physical and mental demands of the claimant’s past relevant work, the 10 undersigned has determined the claimant is able to perform this past relevant work as actually performed by the claimant, but not as generally performed 11 in the national economy. 12 13 AR 40 (emphasis added). More glaringly, nowhere does the ALJ state the opposite 14 proposition that the Commissioner now urges the Court to assume and accept as his actual 15 decision on appeal—that is, that Plaintiff is able to perform her past relevant work as 16 generally performed in the national economy, but not as actually performed. See generally 17 AR 28-40. The Court declines to imagine that he did. 18 As conceded by Defendant, the conclusion the ALJ reached that Plaintiff can 19 perform her past relevant work as actually performed is not supported by substantial 20 evidence. This constitutes error that is not harmless, and requires remand. See Bray v. 21 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing 22 principles of administrative law require us to review the ALJ’s decision based on the 23 reasoning and factual findings offered by the ALJ— not post hoc rationalizations that 24 attempt to intuit what the adjudicator may have been thinking.”); see also, e.g., B.-P. v. 25 Saul, No. 20-CV-02088-JCS, 2021 WL 2207336, at *9 (N.D. Cal. June 1, 2021) (“The 26 Commissioner’s ability to intuit a potential rationale for the ALJ’s decision is insufficient 27 to support the decision.”); Chapman v. Colvin, No. 5:15-CV-867 (GJS), 2016 WL 164292, 28 at *2 (C.D. Cal. Jan. 13, 2016) (“The Court will not accept the Commissioner’s invitation 1 to affirm the ALJ’s opinion on a basis the ALJ did not express.”); Davidson v. Astrue, 703 2 F. Supp. 2d 1008, 1013 (C.D. Cal. 2008) (“[A] reviewing court cannot affirm the denial of 3 benefits based on a reason not stated or finding not made by the ALJ”). 4 The Court addresses the appropriate remedy for this error below. 5 B. Plaintiff’s Claim of Error Regarding the ALJ’s Evaluation of Plaintiff’s 6 Testimony 7 Plaintiff asserts that the ALJ erred in discounting her testimony regarding the 8 severity of her symptoms. When evaluating a claimant’s subjective complaints, an ALJ 9 must follow a two-step inquiry. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). 10 First, an ALJ must assess whether there is objective medical evidence to support the 11 complaints. Id. If that is the case, and there is no evidence of malingering, “the ALJ can 12 only reject the claimant’s testimony about the severity of the symptoms if he gives 13 ‘specific, clear and convincing reasons’ for the rejection.” Id. (quoting Vasquez v. Astrue, 14 572 F.3d 586, 591 (9th Cir. 2009)). An ALJ must “specifically identify the testimony she 15 or he finds not to be credible . . . and explain what evidence undermines that testimony.” 16 Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (quoting Treichler v. Comm’r of Soc. 17 Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)). An ALJ’s decision must be “sufficiently 18 specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s 19 testimony on permissible grounds and did not ‘arbitrarily discredit a claimant’s testimony 20 regarding pain.’” Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991).5 “[A]n ALJ 21

22 5 On March 28, 2016, the Social Security Administration issued new guidance regarding 23 how to evaluate a claimant’s subjective symptom testimony. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016); 2017 WL 5180304 (Oct. 25, 2017) (clarifying SSR 16-3p). 24 Additionally, effective March 27, 2017, the Social Security Administration updated the 25 relevant agency regulations regarding how a claimant’s symptoms are evaluated. See 20 C.F.R. § 416.929. Although the ALJ’s opinion was issued after these changes, the 26 jurisprudence governing the applicable two-step inquiry remains good law. See, e.g., 27 Campbell v. Saul, 848 F. App’x 718, 721 (9th Cir. 2021) (applying the two-step inquiry in a recent case appealing an ALJ’s decision from 2018, in which the newer regulations were 28 1 may not reject a claimant’s subjective complaints based solely on a lack of medical 2 evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 3 676, 680 (9th Cir. 2005). 4 If the ALJ fails to meet these requirements for specificity, the Court is not free to fill 5 in the gaps. Lambert, 980 F.3d at 1278. It is solely within the ALJ’s province to assess the 6 credibility of the claimant’s testimony. Id. A court is therefore “constrained to review the 7 reasons the ALJ asserts.” Id. (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 8 2015)); Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 9 1. Plaintiff’s Testimony 10 Before turning to the ALJ’s evaluation of Plaintiff’s subjective testimony regarding 11 the intensity, persistence, and limiting effects of her symptoms, the Court will first 12 summarize her testimony from various sources in the record. 13 Plaintiff completed an Exertion Questionnaire, Exhibit B3E (AR 271-75), on 14 February 10, 2020. AR 274. Plaintiff reported that she has pain in both feet from diabetic 15 neuropathy. AR 271. The pain requires her to take breaks every 15 to 30 minutes. AR 271. 16 It limits her ability to shower independently because of the pain and lack of balance caused 17 by standing for that length of time. AR 271. It takes Plaintiff approximately 30 to 40 18 minutes to walk half a mile, because the pain is continuous while walking and her feet are 19 usually in excruciating pain shortly after trying to walk or exercise in any way, requiring 20 numerous rest breaks. AR 721. Plaintiff also experiences random cramping and restless 21 legs. AR 272. Plaintiff experiences fatigue and dizziness from her medications. AR 272. 22 Plaintiff does not clean her own home and needs help for larger shopping trips. AR 273. 23 Plaintiff only drives short distances. AR 273. 24 Plaintiff also provided subjective testimony regarding her symptoms during the 25

26 ALJ’s opinion issued in January 2019). See also Trevizo v. Berryhill, 871 F.3d 664, 678 27 n.5 (9th Cir. 2017) (noting SSR 16-3p is consistent with existing Ninth Circuit precedent regarding the ALJ’s assessments of an individual’s testimony). 28 1 administrative hearing on May 6, 2021. AR 65. Plaintiff was represented by counsel at the 2 hearing. AR 65. During the hearing, in response to the ALJ’s question about decreased 3 sensations in her extremities, Plaintiff responded that she has a “delayed sensation” when 4 she bumps her toe. AR 80. She either feels the bump “moments afterwards” or not at all. 5 AR 80. Plaintiff stated that she is “in pain all the time” in her feet, and the pain becomes 6 more severe throughout the day. AR 82. She feels like “someone’s poking [her] with hot 7 needles.” AR 90. She avoids walking. AR 82. She uses a handicapped placard for parking 8 to decrease the amount of walking necessary. AR 82. She does not drive often because she 9 loses sensation in her feet. AR 82. Her drives are limited to short, five-minute trips. AR 84. 10 She relies on her daughter and husband to handle cooking and cleaning at home because 11 she cannot stand long enough to complete those tasks. AR 85. “Five out of six” of the 12 medications Plaintiff takes “cause drowsiness or dizziness in some way.” AR 90-91. 13 2. The ALJ’s Failure to Identify any Specific Inconsistent Testimony Warrants 14 Remand 15 In evaluating Plaintiff’s symptom testimony, the ALJ found that Plaintiff’s 16 medically determinable impairments could reasonably be expected to cause some of her 17 symptoms, satisfying the first step of the inquiry. AR 35; Ghanim, 763 F.3d at 1163. The 18 ALJ found no evidence of malingering. The ALJ was therefore required to state “specific, 19 clear and convincing reasons, supported by substantial evidence from the administrative 20 record” for rejecting Plaintiff’s testimony concerning the intensity, persistence, and 21 limiting effects of her symptoms. Austin v. Saul, 840 F. App’x 899, 901 (9th Cir. 2020) 22 (quoting Marsh v. Colvin, 792 F.3d 1170, 1173 n.2 (9th Cir. 2015) (punctuation omitted)). 23 An ALJ is required to “specifically identify the testimony . . . he finds not to be 24 credible and . . . explain what evidence undermines the testimony.” Holohan, 246 F.3d at 25 1208. Here, the ALJ made a boilerplate statement regarding Plaintiff’s testimony that is 26 commonly found in ALJ decisions, followed by a summary of the medical evidence: 27 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected 28 1 to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms 2 are not entirely consistent with the medical evidence and other evidence in the 3 record for the reasons explained in this decision. 4 AR 35. This boilerplate language does not satisfy the requirement that an ALJ specifically 5 identify the testimony of the claimant that should be discredited. See, e.g., Lambert, 980 6 F.3d at 1277 (finding that nearly identical boilerplate language was insufficient to meet the 7 ALJ’s burden); Burrell, 775 F.3d at 1138 (general statement that testimony is “inconsistent 8 in some unspecified way” is insufficient); Treichler, 775 F.3d at 1103 (noting that identical 9 boilerplate statement was insufficient because the “ALJ must identify the testimony that 10 was not credible”). 11 Although the ALJ summarizes the medical record at length, he does not identify any 12 specific testimony that is inconsistent with the record, much less explain why any portions 13 of the medical record contradict Plaintiff’s testimony. In the ALJ’s discussion of the 14 medical record, he suggests some contradictions. For example, in discussing the treatment 15 notes from a November 2018 neurology appointment, the ALJ acknowledges that the 16 neurologist observed that Plaintiff had “decreased perception of pinprick to about 6 inches 17 above her ankles bilaterally; diminished sensation at the toes and ankles; and, significant 18 misstep with Romberg.” AR 35. The ALJ then comments, “however,” that the treatment 19 notes also indicate “mild decrease in vibratory sensation otherwise; mild weakness of toe 20 flexors and extensors, otherwise full 5/5 strength, absent ankle jerks; and, trace knee jerks.” 21 AR 35. The ALJ provides no explanation for how this medical evidence contradicts 22 Plaintiff’s testimony; in fact, it appears to corroborate her testimony. 23 The ALJ makes reference to treatment notes that indicate that Plaintiff sometimes 24 forgets to take her diabetes medication, is sometimes unable to take medication because it 25 is too expensive, and she has ongoing struggles with her diet. Again, the ALJ fails to 26 connect these issues to Plaintiff’s testimony. As the Ninth Circuit has recently reaffirmed, 27 the “clear and convincing” standard applicable to an ALJ’s evaluation of a claimant’s 28 subjective symptom testimony “is the most demanding required in Social Security cases” 1 and “requires an ALJ to show [his] work.” Ferguson v. O’Malley, __ F. 4th __, No. 21- 2 35412, 2024 WL 1103364, at *3 (9th Cir. Mar. 14, 2024) (quotations and citations 3 omitted). If the ALJ meant to suggest that the limiting effects of Plaintiff’s neuropathy 4 would be lessened if she had not missed those doses of medication or eliminated sugars 5 from her diet, he was required to show his work to explain what evidence in the record 6 would support that conclusion. See id. at *4 (requiring the ALJ to expressly and specifically 7 state which symptoms alleged by a claimant are inconsistent with which particular record 8 evidence). The ALJ did not show his work here. 9 Defendant implicitly acknowledges that the ALJ failed to provide specific reasons 10 for discounting Plaintiff’s testimony by asserting that “a reasonable mind can understand 11 how a lack of significant findings casts doubt over claims of debilitating limitations 12 stemming from [Plaintiff’s] conditions.” ECF No. 14 at 15. The Court’s role, however, is 13 to assess the specific testimony rejected by the ALJ and whether the ALJ properly provided 14 “specific, clear, and convincing” reasons for its rejection, not to make its own inferences 15 regarding Plaintiff’s credibility in light of the medical record. Brown-Hunter, 806 F.3d at 16 494 (“Although the inconsistencies identified by the district court could be reasonable 17 inferences drawn from the ALJ’s summary of the evidence, the credibility determination 18 is exclusively the ALJ’s to make, and ours only to review.”). When an ALJ fails to identify 19 any specific testimony, there is nothing for the Court to assess. This constitutes reversible 20 error. See Treichler, 775 F.3d at 1103. 21 The Court addresses the appropriate remedy below. 22 C. Plaintiff’s Claim of Error Regarding the Administrative Record 23 Plaintiff asserts that she was denied due process because of errors in the 24 administrative record. Defendant contends that any errors were corrected and, in any event, 25 Plaintiff has the complete administrative record now. The Court need not reach this claim 26 of error in light of the other errors found by the Court warranting reversal. 27 \\ 28 \\ 1 V. THE PROPER REMEDY 2 The Court has discretion to either remand for further proceedings before the ALJ, or 3 remand for an award of benefits. Garrison, 759 F.3d at 1019. “In cases where there are no 4 outstanding issues that must be resolved before a proper disability determination is made, 5 and where it is clear from the administrative record that the ALJ would be required to award 6 benefits if the claimant’s excess pain testimony were credited, we will not remand solely 7 to allow the ALJ to make specific findings regarding that testimony.” Varney v. Sec’y of 8 Health & Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988). This “credit-as-true” rule 9 serves to encourage ALJs to “carefully assess” pain testimony, to reduce the delay and 10 uncertainty that often occurs in social security appeals, and to ensure “that deserving 11 claimants will receive benefits as soon as possible.” Id. at 1398-99. 12 The record here has been fully developed. It includes several hundred pages of 13 Plaintiff’s medical records, as well as medical opinions from state agency physicians and 14 Plaintiff’s treating physician. Plaintiff was treated for severe neuropathy related to diabetes 15 on a regular basis between December 2017 and July 2020. E.g., AR 504, 536, 544, 560, 16 574, 576, 581, 587, 594, 615, 622, 625, 682, 950, 953. The medical records show that the 17 neuropathy caused substantial pain, limited her ability to walk, compromised the sensation 18 in her feet, affected her gait, and required medication that caused her to be drowsy. AR 536 19 (notes from urgent care visit for toe injury resulting from fall), 560 (neuropathy limits 20 ability to walk), 577 (“Inability to distinguish sharp versus dull with decreased perception 21 of pinprick and light touch to about halfway up the tibial plateau bilaterally stocking 22 distribution. Wide-based sensory ataxic gait”), 587 (fatigue related to medication), 682 23 (“Pain is dull burning but with intermittent sharp stabbing pain particularly in the arch and 24 toes. It is most painful if she sits for a while and gets up and stands since then she fells 25 severe pain in her feet.”), 684 (“Decreased perception of pinprick to about 6 inches above 26 her ankles bilaterally . . . Walks with a slightly wide-based ataxic gait.). 27 The record also includes testimony from Plaintiff and third parties. Because of pain 28 from her neuropathy, Plaintiff has to take breaks every 15 to 30 minutes. AR 271. She is 1 unable to stand and stay balanced long enough to take a shower or complete household 2 tasks like cooking and cleaning. AR 85, 271. Her medications cause her to be dizzy and 3 drowsy. AR 90-91, 272. Plaintiff’s sister confirmed that Plaintiff’s neuropathy “becomes 4 unbearable” and that she cannot walk more than a few feet without pain, or stand for very 5 long. AR 61. Plaintiff’s friend also confirmed that Plaintiff’s walking is very limited and 6 that the neuropathy has been debilitating for Plaintiff. AR 62. 7 During the May 6, 2021 administrative hearing, the vocational expert testified that 8 Plaintiff could not perform her past work, or any other work, if Plaintiff had to change 9 positions as frequently as she indicated in her testimony. AR 99-102. Therefore, if 10 Plaintiff’s testimony were credited as true, a finding of disability would be required. 11 The ALJ’s failure to evaluate Plaintiff’s testimony properly in the first instance is 12 particularly concerning and weighs against a remand for further proceedings. The Ninth 13 Circuit has affirmed many times that the boilerplate language the ALJ relied on here is 14 insufficient. E.g., Ferguson, 2024 WL 1103364 at *4 (rejecting language that a claimant’s 15 statements “concerning the intensity, persistence and limiting effects of these symptoms 16 are not entirely consistent with the medical evidence and other evidence in the record for 17 the reasons explained in this decision” as insufficient); Lambert, 980 F.3d at 1277 18 (rejecting the same language as in Ferguson as “boilerplate” and insufficient); Brown- 19 Hunter, 806 F.3d at 491 (rejecting the language that a claimant’s “statements concerning 20 the intensity, persistence and limiting effects of these symptoms are not credible to the 21 extent they are inconsistent with the above residual functional capacity assessment” as 22 insufficient); Treichler, 775 F.3d at 1102-03 (rejecting the same language as in Brown- 23 Hunter as insufficient). As the Ninth Circuit stated in Benecke v. Barnhart, 379 F.3d 587, 24 595 (9th Cir. 2004), “[a]llowing the Commissioner to decide the issue again would create 25 an unfair ‘heads we win; tails, let’s play again’ system of disability benefits adjudication.” 26 (quoting Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004)). Application of the credit- 27 as-true rule here serves the purpose of the rule by encouraging ALJs to comply with Ninth 28 1 Circuit standards for evaluating claimant testimony in the future, rather than giving them a 2 “do-over” that will only result in inequitable delays. 3 “If additional proceedings can remedy defects in the original administrative 4 proceedings, a social security case should be remanded. Where, however, a rehearing 5 would simply delay receipt of benefits, reversal [for an immediate award of benefits] is 6 appropriate.” Id. Remand for the immediate payment of benefits is also appropriate “where 7 the record has been developed fully and further administrative proceedings would serve no 8 useful purpose[.]” Benecke 379 F.3d at 593. “[A] remand for benefits is indicated 9 particularly where a claimant has already experienced lengthy, burdensome litigation.” Van 10 Ausdle v. Shalala, 19 F.3d 32 (9th Cir. 1994) (unpublished table opinion); see also Terry 11 v. Sullivan, 903 F.2d 1273, 1280 (9th Cir. 1990) (explaining that while the court had 12 “discretion on remand so that the Secretary may further develop the record” on certain 13 issues pertinent to the disability determination, it would instead “invoke [its] discretion to 14 order payment of benefits” given the “exceptional facts of this case,” including that the 15 plaintiff was currently 64 years old, it had been nearly four years since she had applied for 16 benefits, further delays would be “unduly burdensome,” and it was “very doubtful” that the 17 Commissioner would be able to sustain his burden at step five to find the plaintiff not 18 disabled). 19 Based on this guidance, the Court finds in its discretion that the appropriate remedy 20 here is to remand for the immediate award of benefits. More than four years have passed 21 since Plaintiff applied for benefits for the disability period at issue now. AR 28. As 22 discussed, Plaintiff previously applied for benefits over seven years ago for an earlier 23 disability period and was denied, a process that took more than two years. AR 108-115. 24 Plaintiff is now 61 years old. AR 232. Here, it is clear from the current record “that the 25 ALJ would be required to award benefits if [Plaintiff’s] excess pain testimony were 26 credited,” making it inappropriate to remand for the ALJ to make specific findings 27 regarding that testimony, Varney, 859 F.2d at 1401, the record is fully developed, and there 28 is no need for further delays. 1 Therefore, weighing the applicable factors, the Court finds the appropriate remedy 2 ||here is to reverse the Commissioner’s decision and remand for an immediate award of 3 || benefits. 4 VI. CONCLUSION 5 Based on the foregoing analysis, the Court resolves the parties’ Joint Motion for 6 || Judicial Review (ECF No. 14) in Plaintiff's favor. The Court hereby REVERSES the 7 || Commissioner’s decision pursuant to sentence four of 42 U.S.C. § 405(g), and REMANDS 8 action for calculation and award of benefits to Plaintiff. 9 The Clerk is directed to CLOSE this case. 10 IT IS SO ORDERED. 11 12 Dated: March 25, 2024 13 14 _ Abia. Xion Honorable Allison H. Goddard 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28