Thomas v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Sandra Thomas, No. CV-20-00382-TUC-RM

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Sandra Thomas brings this action seeking review of the final decision of 16 the Commissioner of Social Security (“Commissioner”) pursuant to 42 U.S.C. § 405(g). 17 (Doc. 1.) On February 9, 2022, Magistrate Judge D. Thomas Ferraro filed a Report and 18 Recommendation (“R&R”), recommending that this Court affirm the Commissioner’s 19 final decision. (Doc. 26.) Plaintiff filed a timely Objection (Doc. 27), and the 20 Commissioner filed a Response to Plaintiff’s Objection (Doc. 28). 21 I. Background 22 Plaintiff filed a Title II application for disability insurance benefits and a Title 23 XVI application for Supplemental Security Income on August 29, 2016 and February 14, 24 2017, respectively, alleging disability beginning October 31, 2012, due to congestive 25 heart failure, chronic obstructive pulmonary disease (“COPD”), asthma, overactive 26 bladder, depression, anxiety, sleep apnea, stroke, mild cognitive impairment with 27 memory loss, and chronic back pain. (AR 53-54, 63-64, 190-205.) Plaintiff later 28 amended her alleged disability onset date to December 22, 2014, the date of her hospital 1 admission for a potential stroke. (AR 34.) Plaintiff’s claims were denied initially and on 2 reconsideration. (AR 73-76.) On April 24, 2019, Administrative Law Judge (“ALJ”) 3 Peter J. Baum held a hearing at which Plaintiff and vocational expert Jeff Komar 4 testified. (AR 30-52.) On August 15, 2019, the ALJ issued a decision finding Plaintiff 5 non-disabled. (AR 13-24.) 6 A five-step sequential process is used to evaluate Social Security disability claims. 7 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At step one, the ALJ must determine if a 8 claimant is engaged in “substantial gainful activity”; if so, the claimant is not disabled. 9 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At the second step, the ALJ must 10 determine whether the claimant has a “severe medically determinable physical or mental 11 impairment” or combination of impairments that has lasted or is expected to last for a 12 continuous period of at least 12 months; if not, the claimant is not disabled. 20 C.F.R. §§ 13 404.1520(a)(4)(ii), 416.920(a)(4)(ii); see also 20 C.F.R. §§ 404.1509, 416.909. At the 14 third step, the ALJ must determine if the claimant’s impairments meet or equal that of a 15 listed impairment; if so, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 16 416.920(a)(4)(iii). At the fourth step, the ALJ must determine whether, based on the 17 claimant’s residual functional capacity, the claimant can perform his or her past relevant 18 work; if so, the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 19 416.920(a)(4)(iv). At the fifth step, the ALJ must determine whether, based on the 20 claimant’s residual functional capacity, age, education, and work experience, the claimant 21 can make an adjustment to other jobs existing in significant numbers in the national 22 economy; if so, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(v), 23 416.920(a)(4)(v); see also 20 C.F.R. §§ 404.1560(c), 416.960(c). 24 Here, the ALJ found at step one that Plaintiff had not engaged in substantial 25 gainful activity since her alleged disability onset date of December 22, 2014. (AR 16.) 26 At step two, the ALJ found that Plaintiff has the following severe medically determinable 27 impairments: congestive heart failure, COPD, and obesity. (AR 16-17.) At step three, 28 the ALJ found that Plaintiff’s impairments do not meet or equal that of a listed 1 impairment. (AR 17-18.) At step four, the ALJ found that Plaintiff has the residual 2 functional capacity to perform the full range of sedentary work as defined in 20 C.F.R. §§ 3 404.1567(a) and 416.967(a). (AR 18-21.) Specifically, the ALJ found that Plaintiff can 4 lift, carry, push, and/or pull 10 pounds occasionally and less than 10 pounds frequently; 5 can stand and/or walk 4 hours in an 8-hour workday; can sit 6 hours in an 8-hour 6 workday; can occasionally climb ramps/stairs and never climb ladders, ropes, or 7 scaffolds; can frequently balance and stoop; can never kneel, crouch, or crawl; and 8 should avoid concentrated exposure to extreme cold and heat, fumes, odors, dusts, gases, 9 poor ventilation, and hazards such as unprotected heights and moving machinery. (AR 10 18.) The ALJ found, based on this residual functional capacity, that Plaintiff is unable to 11 perform her past relevant work as a convenience store clerk, convenience store manager, 12 customer order clerk, customer service supervisor, or computer systems administrator. 13 (AR 21-22.) However, at step five, the ALJ found that Plaintiff acquired skills from her 14 past relevant work that are transferable to the occupation of data entry clerk, which is a 15 job existing in significant numbers in the national economy that Plaintiff can perform 16 given her residual functional capacity, age, and education.1 (AR 22-24.) The Appeals 17 Council denied review (AR 1-3), making the ALJ’s decision the final decision of the 18 Commissioner. 19 Plaintiff thereafter filed her Complaint in this action. (Doc. 1.) In her Opening 20 Brief, she argues (1) that the “skills” the ALJ found to be transferable are not skills but 21 merely tasks that can be learned in 30 days or less; and (2) that the ALJ failed to provide 22 clear and convincing reasons for discounting her symptom testimony. (Doc. 23 at 9-16.) 23 In his R&R, Magistrate Judge Ferraro finds that the ALJ (1) properly identified 24 transferable skills and the occupation to which they could transfer; and (2) properly relied 25 on inconsistencies with the medical evidence to discount Plaintiff’s symptom testimony. 26 (Doc. 26 at 6-11.) 27 II. Standard of Review 28 1 Plaintiff was born in 1964 and has a high school diploma. (AR 34-35.) 1 A district judge “may accept, reject, or modify, in whole or in part, the findings or 2 recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district 3 judge must “make a de novo determination of those portions” of the magistrate judge’s 4 “report or specified proposed findings or recommendations to which objection is made.” 5 Id. The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure 6 state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there 7 is no clear error on the face of the record in order to accept the recommendation” of a 8 magistrate judge. Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 addition. See 9 also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or 10 only partial objection is made, the district court judge reviews those unobjected portions 11 for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. 12 Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and 13 Recommendation). 14 The Court must affirm the Commissioner’s decision if the decision “is supported 15 by substantial evidence and based on the application of correct legal standards.” 16 Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (per curiam). “Substantial 17 evidence” is “such relevant evidence as a reasonable mind might accept as adequate to 18 support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). It “is 19 more than a mere scintilla but less than a preponderance.” Id. In determining whether 20 the Commissioner’s decision is supported by substantial evidence, the Court “must 21 consider the record as a whole and weigh both the evidence that supports and the 22 evidence that detracts from the ALJ’s factual conclusions.” Gutierrez v. Comm’r of Soc. 23 Sec., 740 F.3d 519, 523 (9th Cir. 2014) (internal quotation marks omitted). When 24 evidence “is susceptible to more than one rational interpretation, one of which supports 25 the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 26 F.3d 947, 954 (9th Cir. 2002). The Court may consider “only the reasons provided by the 27 ALJ in the disability determination and may not affirm the ALJ on a ground upon which 28 he did not rely.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (internal 1 quotation marks omitted). 2 Error in a social security determination is subject to harmless-error analysis. 3 Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). “[A]n error is harmless so long 4 as there remains substantial evidence supporting the ALJ’s decision and the error does 5 not negate the validity of the ALJ’s ultimate conclusion.” Molina v. Astrue, 674 F.3d 6 1104, 1115 (9th Cir. 2012) (internal quotation marks omitted), superseded by regulation 7 on other grounds. 8 III. Discussion 9 Plaintiff objects to the R&R’s findings that the ALJ properly identified 10 transferable skills and properly discounted Plaintiff’s symptom testimony. (Doc. 27.) 11 The Court addresses each objection in turn. 12 A. Transferrable Skills 13 At the administrative hearing, Plaintiff testified that she worked for Arizona Mail 14 Order for three or four years, first as a clerk “on the phones” taking incoming calls, then 15 as a trainer and supervisor. (AR 37, 45.) The ALJ classified this job as a customer order 16 clerk (DOT code 249.362-026), a semi-skilled position, and customer service supervisor 17 (DOT code 241.137-014), a skilled position. (AR 21.) Plaintiff provided a written 18 description of the job as consisting of the following duties: wearing a wireless headset 19 and walking the warehouse to assist call center clerks; hiring and conducting training 20 classes; handling customer complaints; using machines, technical knowledge, and/or 21 skills; and writing and completing reports. (AR 260.) 22 The vocational expert testified at the administrative hearing that an individual with 23 Plaintiff’s age, education, past relevant work experience, and residual functional capacity 24 could work as a data entry clerk (DOT code 203.582-054), a semi-skilled position for 25 which approximately 25,445 jobs exist in the national economy. (AR 23, 48-49.) In a 26 post-hearing written rationale, the vocational expert opined that Plaintiff acquired skills 27 in her prior employment as a customer order clerk that are sufficient to meet the demands 28 of a data entry clerk without significant vocational adjustment. (AR 22, 300.) 1 Specifically, those skills are: “operation of computer and keyboard, entering information 2 into computer, verifying accuracy of information inputted, editing/revising incorrect 3 information, and keeping record of information entered.” (Id.) The ALJ credited the 4 vocational expert’s testimony and found that Plaintiff can perform the work of a data 5 entry clerk given her transferable skills. (AR 22-24.) 6 The R&R finds that clerical skills such as keyboarding and entering information, 7 as well as revising and organizing information, qualify as transferable skills. (Doc. 26 at 8 8.) In her Objection, Plaintiff argues that the relevant inquiry is whether she acquired 9 transferable skills through the actual performance of her job as a customer order clerk, 10 and there is no evidence that typing or data entry were more than incidental parts of her 11 job. (Doc. 27 at 2-3.) She further argues that the vocational expert failed to identify 12 transferable skills and instead identified only a collection of “tasks commonly performed 13 by some order clerks but not necessarily performed by [Plaintiff].” (Id. at 3.) The 14 Commissioner relies on its Answering Brief, in which it argues that Plaintiff gained 15 computer and data-entry skills in her prior work that match the skills required for a data 16 entry clerk position. (Doc. 24 at 6-9; Doc. 28 at 2.) 17 A claimant is considered to have transferable skills “when the skilled or semi- 18 skilled work activities [the claimant] did in past work can be used to meet the 19 requirements of skilled or semi-skilled work activities of other jobs or kinds of work.” 20 20 C.F.R. § 404.1568(d)(1). The determination “depends largely on the similarity of 21 occupationally significant work activities among different jobs.” Id. Transferability is 22 most probable among jobs requiring the same or a lesser degree of skill; the same or 23 similar tools and machines; and the same or similar raw materials, products, processes, or 24 services. Id. § 404.1568(d)(2). “A complete similarity of all three factors is not 25 necessary for transferability.” Id. § 404.1568(d)(3). 26 Social Security Ruling (“SSR”) 82-41 defines a “skill” as “knowledge of a work 27 activity which requires the exercise of significant judgment that goes beyond the carrying 28 out of simple job duties and is acquired through performance of an occupation which is 1 above the unskilled level,” meaning it “requires more than 30 days to learn.” Titles II 2 and XVI: Work Skills and their Transferability as Intended by the Expanded Vocational 3 Factors Regulations Effective February 26, 1979, SSR 82-41(2)(a) (1982), available at 4 1982 WL 31389. For example, “making precise measurements” is a skill. Id. 5 “Transferability means applying work skills which a person has demonstrated in 6 vocationally relevant past jobs to meet the requirements of other skilled or semiskilled 7 jobs.” SSR 82-41(2)(b). As an example, “a semiskilled general office clerk” is 8 ordinarily “proficient in, and spends considerable time doing, typing, filing, tabulating 9 and posting data in record books, preparing invoices and statements, [and] operating 10 adding and calculating machines,” which are skills that “may be readily transferable to 11 such semiskilled sedentary occupations as typist, clerk-typist and insurance auditing 12 control clerk.” SSR 82-41(d). 13 Based on 20 C.F.R. § 404.1568 and SSR 82-41, the Court agrees with the R&R 14 that skills such as typing, data entry, and revising and organizing information qualify as 15 transferable skills. The Court also agrees that such skills transfer to the job of data entry 16 clerk (DOT code 203.582-054), which requires operating a keyboard to enter data into a 17 computer and confirming the accuracy of the data entered. 18 However, the Court disagrees that substantial evidence supports the ALJ’s finding 19 that Plaintiff acquired transferable skills through her past relevant work as a customer 20 order clerk. Plaintiff’s written description of her work at Arizona Mail Order appears to 21 focus on her later job as a customer service supervisor rather than her initial work as a 22 customer order clerk. (See AR 260.) Her testimony from the hearing before the ALJ 23 indicates only that her job as a customer order clerk involved processing orders received 24 from customers by telephone. (AR 37, 45.) It is not clear from the record the degree to 25 which Plaintiff engaged in typing, data entry, and revising and organizing information in 26 her position as a customer order clerk. One could assume that Plaintiff used typing and 27 data entry skills in order to process customers’ orders, but an ALJ’s decision must be 28 supported by substantial evidence rather than mere assumptions. At step five of the 1 sequential evaluation process, the Commissioner bears the burden of producing evidence 2 showing that the claimant can perform work that exists in substantial numbers in the 3 national economy. 20 C.F.R. §§ 404.1512(b)(3), 404.1560(c)(2), 416.912(b)(3), 4 416.960(c)(2). Here, the ALJ did not sufficiently develop the record to support a finding 5 that Plaintiff acquired transferrable skills through her work as a customer order clerk that 6 allow her to perform a job that exists in substantial numbers in the national economy. 7 B. Symptom Testimony 8 Plaintiff reported being unable to “complete daily household chores as any 9 physical exertion causes severe shortness of breath, dizziness and tingling and weakness 10 in her legs.” (AR 248.) She “sometimes does the dishes but needs frequent breaks.” 11 (Id.) She reported “difficulty with her personal care,” and “needing a shower chair” due 12 to shortness of breath, dizziness, and weakness. (Id.) She needs to rest “frequently after 13 walking very short distances,” and “by the end of a trip to the grocery store,” she “must 14 sit and rest for the remainder of the day.” (Id.; see also AR 273-74.) She “tends to stay 15 at home” (AR 248) and “has difficulty socializing due to shortness of breath” (AR 273). 16 At the hearing before the ALJ, Plaintiff testified that she had been using an oxygen tank 17 for two years, and she had previously used one for a three-year period before temporarily 18 losing her health insurance benefits. (AR 39-40.) She testified that she cannot perform 19 her past work because she cannot talk for prolonged periods and has difficulty walking 20 short distances. (AR 41.) 21 The ALJ gave “little weight” to Plaintiff’s allegations and testimony that her 22 impairments preclude her from performing work-related activities, but he gave her the 23 “benefit of the doubt with respect to her allegation that she tires easily if she talks to[o] 24 long.” (AR 21.) The ALJ noted that the record shows Plaintiff “received appropriate 25 medical treatment but also failed to comply with smoking cessation.” (Id.) The ALJ 26 further noted that Plaintiff “is not dependent on others to perform her activities of daily 27 living.” (Id.) Finally, the ALJ found that “the degree of symptoms reported by [Plaintiff] 28 is disproportionate to the objective medical evidence of record.” (AR 19.) The ALJ 1 credited the determination of State agency medical consultant Melvyn Weinberg, M.D., 2 that Plaintiff can perform sedentary work. (AR 21.) 3 The R&R finds that the ALJ’s statement regarding Plaintiff’s daily activities is 4 insufficient to discredit her testimony, because the statement is vague and inconsistent 5 with the third-party function report of Plaintiff’s daughter, Helene Lewton, which 6 describes Plaintiff as needing assistance from others to prepare meals, provide 7 transportation, and finish chores. (Doc. 26 at 10.) The R&R finds that there is a conflict 8 in the case law within the Ninth Circuit regarding whether a claimant’s failure to quit 9 smoking should be considered in evaluating the claimant’s credibility. (Id. at 10-11.) 10 However, the R&R finds that this Court need not settle the issue, because even if the ALJ 11 erred in relying on Plaintiff’s failure to quit smoking in discounting Plaintiff’s testimony, 12 the error was harmless because the ALJ properly rejected Plaintiff’s testimony based on 13 inconsistency with the medical evidence. (Id. at 9-12.) 14 In her Objection, Plaintiff argues the ALJ could not permissibly reject her 15 symptom testimony based solely on a lack of corroborating objective medical evidence. 16 (Doc. 27 at 3-5.) In response, the Commissioner argues that the ALJ relied on four 17 reasons to discount Plaintiff’s symptom testimony: her daily activities, her failure to stop 18 smoking, inconsistency with the medical evidence, and inconsistency with the State 19 agency medical consultant’s determination. (Doc. 28 at 2.) Thus, the Commissioner 20 argues that, even if this Court agrees with the R&R that the ALJ’s statement regarding 21 Plaintiff’s daily activities is insufficient to discredit her testimony, and even if this Court 22 finds that the ALJ’s reference to Plaintiff’s failure to quit smoking was also insufficient, 23 two valid reasons for rejecting Plaintiff’s symptom testimony remain. (Doc. 28 at 2-3.) 24 In her Reply Brief, Plaintiff argues that the ALJ never stated that the State agency 25 medical consultant’s determination was inconsistent with her symptom testimony, and 26 that the mere existence of a contrary determination from a “state agency physician at the 27 initial or reconsideration level of the case alone cannot constitute a clear and convincing 28 reason to discount symptom testimony . . . because such opinions are present in virtually 1 every case.” (Doc. 25 at 7.) 2 An ALJ must engage in a two-step analysis to “determine whether a claimant’s 3 testimony regarding subjective pain or symptoms is credible.” Lingenfelter v. Astrue, 4 504 F.3d 1028, 1035-36 (9th Cir. 2007). “First, the ALJ must determine whether the 5 claimant has presented objective medical evidence of an underlying impairment which 6 could reasonably be expected to produce the pain or other symptoms alleged.” Id. at 7 1036 (internal quotation marks omitted); see also 20 C.F.R. § 404.1529(a) (“[t]here must 8 be objective medical evidence from an acceptable medical source that shows” the 9 claimant has an impairment that “could reasonably be expected to produce the pain or 10 other symptoms alleged”). “Second, if the claimant meets this first test and there is no 11 evidence of malingering, the ALJ can reject the claimant’s testimony about the severity 12 of symptoms only by offering specific, clear and convincing reasons for doing so.” 13 Lingenfelter, 504 F.3d at 1036 (internal quotation marks omitted). 14 Here, the ALJ found that Plaintiff’s medically determinable impairments could 15 reasonably be expected to produce her alleged symptoms (AR 19), and the ALJ did not 16 find evidence of malingering. Accordingly, the issue before the Court is whether the ALJ 17 offered specific, clear and convincing reasons for rejecting Plaintiff’s symptom 18 testimony. 19 1. Daily Activities 20 An ALJ may permissibly consider a claimant’s daily living activities in 21 determining whether to credit the claimant’s statements concerning the intensity, 22 persistence, and effect of her symptoms. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 23 2005). “[I]f a claimant engages in numerous daily activities involving skills that could be 24 transferred to the workplace, the ALJ may discredit the claimant’s allegations upon 25 making specific findings relating to those activities.” Id. However, “ALJs must be 26 especially cautious in concluding that daily activities are inconsistent” with a claimant’s 27 symptom testimony, “because impairments that would unquestionably preclude work and 28 all the pressures of a workplace environment will often be consistent with doing more 1 than merely resting in bed all day.” Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2 2014). 3 Here, the ALJ stated that Plaintiff “is not dependent on others to perform her 4 activities of daily living.” (AR 21.) That statement does not make any specific findings 5 relating to Plaintiff’s daily activities, nor is it supported by the record. As discussed 6 above, Plaintiff reported significant limitations with her activities of daily living. (See, 7 e.g., AR 248.) Those reported limitations are consistent with the third-party function 8 report submitted by Lewton. (AR 251-57.) Lewton reported that Plaintiff lives with her, 9 is unable to drive, cannot walk to the bus stop, cannot stand for extended periods or easily 10 get up from sitting, has difficulty bathing and showering, and is on constant supplemental 11 oxygen during the day and CPAP at night. (AR 251-52, 254.) She also reported that 12 Plaintiff can only walk 30-50 feet before needing to rest. (AR 256.) She stated that 13 Plaintiff can fold laundry while sitting and that she does the dishes two to three times per 14 week but is unable to dry the dishes and put them away. (AR 253.) Plaintiff prepares 15 simple meals one to two times per week, can supervise Lewton’s daughter for short 16 periods of time, can take her boyfriend’s dogs on walks of less than ten minutes, and can 17 play fetch with the dogs while sitting. (AR 252-53.) Plaintiff can lift “very little” and 18 climbing stairs involves “too much physical exertion” for her. (AR 256.) Lewton noted 19 that not being independent “has hurt [Plaintiff] greatly.” (AR 257.) 20 The Court agrees with the R&R that the record does not support the ALJ’s finding 21 that Plaintiff can independently perform her activities of daily living. To the contrary, the 22 record indicates that Plaintiff is dependent upon others for daily activities including 23 transportation, most of her meal preparation, and finishing chores. The Court will adopt 24 the R&R’s finding that the ALJ’s reference to Plaintiff’s activities of daily living does not 25 constitute a clear and convincing reason for discrediting Plaintiff’s symptom testimony. 26 2. Failure to Quit Smoking 27 “In some circumstances, a failure to seek treatment or a failure to follow a 28 prescribed treatment is properly used as evidence supporting a conclusion that the 1 claimant is not credible in describing his or her symptoms.” Orn v. Astrue, 495 F.3d 625, 2 637 (9th Cir. 2007); see also Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (“A 3 claimant’s subjective symptom testimony may be undermined by an unexplained, or 4 inadequately explained, failure to follow a prescribed course of treatment.” (internal 5 quotation and alteration marks omitted)). However, the Ninth Circuit has recognized that 6 a claimant who continues smoking against medical advice may be “so addicted to 7 cigarettes that she continue[s] smoking even in the face of debilitating shortness of breath 8 and acute chemical sensitivity.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 9 1227 (9th Cir. 2009) (finding that ALJ’s reliance on a claimant’s failure to quit smoking, 10 “even if erroneous,” amounted to harmless error where the ALJ presented other valid 11 bases for discounting the claimant’s symptom testimony); see also Rivers v. Berryhill, 12 732 Fed. App’x 511, 513 (9th Cir. 2018) (mem.) (“The ALJ’s reliance on [the claimant’s] 13 continued smoking, despite doctors’ warnings to the contrary, as a basis to discredit his 14 credibility was harmless error.”). 15 Here, the record reveals that Plaintiff made attempts to reduce her cigarette intake 16 but did not successfully quit smoking. (See, e.g., AR 312, 483, 537, 591-92.) Given the 17 highly addictive nature of cigarettes, the Court finds that the ALJ erred in discrediting 18 Plaintiff’s symptom testimony based on her failure to quit smoking, particularly where 19 the record contains evidence of Plaintiff’s efforts to reduce her cigarette intake. 20 3. State Agency Medical Consultant’s Determination 21 At the reconsideration level, State agency medical consultant Dr. Weinberg 22 determined that Plaintiff has the residual functional capacity to perform sedentary work. 23 (AR 87-91.) The ALJ adopted Dr. Weinberg’s determination, finding it to be “consistent 24 with the medical evidence as a whole and the testimony.” (AR 21.) 25 The Commissioner asserts that the ALJ relied on inconsistencies with Dr. 26 Weinberg’s determination as a basis for discounting Plaintiff’s symptom testimony. 27 (Doc. 28 at 2-3.) However, the ALJ never specifically did so. See Revels, 874 F.3d at 28 654 (a court “may not affirm the ALJ on a ground upon which he did not rely”). The 1 ALJ credited Dr. Weinberg’s determination, but he never stated that he relied on 2 inconsistencies between Plaintiff’s symptom testimony and Dr. Weinberg’s 3 determination as a basis for discounting Plaintiff’s symptom testimony. Even if the ALJ 4 had done so, the Court agrees with Plaintiff that inconsistency with the determination of a 5 State agency medical consultant at the initial or reconsideration level cannot constitute a 6 clear and convincing reason for an ALJ to discount a claimant’s symptom testimony, as 7 such inconsistencies exist in virtually every case. 8 4. Medical Evidence 9 Finally, the ALJ found that the degree of symptoms reported by Plaintiff “is 10 disproportionate to the objective medical evidence of record.” (AR 19.) The ALJ then 11 summarized medical records documenting diagnostic tests and treatment for COPD and 12 congestive heart failure. (AR 19-20.) The ALJ discussed records from a March 17, 2017 13 emergency department visit indicating Plaintiff was “able to speak in full sentences,” 14 finding the notation inconsistent with Plaintiff’s testimony that she is unable to speak for 15 prolonged periods. (AR 20.) The ALJ also referred to a pulmonary test in which 16 Plaintiff walked 262 meters in six minutes with no significant oxygen desaturation. (Id.) 17 Once a claimant has shown that she has a medically determinable impairment or 18 impairments that could reasonably be expected to produce her pain or other symptoms, 19 her statements about the intensity, persistence, and effect of her pain or other symptoms 20 cannot be rejected “solely because the available objective medical evidence does not 21 substantiate” them. 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2); see also Bunnell v. 22 Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991) (an ALJ “may not discredit a claimant’s 23 testimony of pain and deny disability benefits solely because the degree of pain alleged 24 by the claimant is not supported by objective medical evidence”). 25 Here, the other reasons provided by the ALJ for discounting Plaintiff’s symptom 26 testimony are invalid, and the ALJ’s finding that the degree of symptoms reported by 27 Plaintiff is not corroborated by the objective medical evidence is insufficient, standing on 28 its own, to constitute a clear and convincing reason for discounting Plaintiff’s symptom 1 testimony. See 20 C.F.R. § 404.1529(c)(2). Accordingly, the Court finds that the ALJ 2 failed to provide clear and convincing reasons for discounting Plaintiff’s statements 3 concerning the intensity, persistence, and limiting effects of her symptoms. 4 C. Credit-As-True 5 A social security case should be remanded “if additional proceedings can remedy 6 defects in the original administrative proceeding.” Garrison v. Colvin, 759 F.3d 995, 7 1019 (9th Cir. 2014) (internal citation and alteration marks omitted). However, in certain 8 circumstances, a court may “reverse and remand” for an award of benefits rather than a 9 rehearing. Id.; see also 42 U.S.C. § 405(g) (a court may reverse the decision of the 10 Commissioner “with or without remanding the cause for a rehearing”). Under the 11 “credit-as-true” rule, “where there are no outstanding issues that must be resolved before 12 a proper disability determination can be made, and where it is clear from the 13 administrative record that the ALJ would be required to award benefits” if improperly 14 disregarded testimony were credited, a court “will not remand solely to allow the ALJ to 15 make specific findings regarding that testimony” but instead will credit the testimony as 16 true. Garrison, 759 F.3d at 1019 (internal quotation marks omitted). 17 A court will remand for an award of benefits “only in rare circumstances . . . 18 where no useful purpose would be served by further administrative proceedings and the 19 record has been thoroughly developed.” Treichler v. Comm’r of Soc. Sec. Admin, 775 20 F.3d 1090, 1100 (9th Cir. 2014). Remanding for further administrative proceedings is 21 required “[w]here there is conflicting evidence” and “not all essential factual issues have 22 been resolved.” Id. at 1101. If “an evaluation of the record as a whole creates serious 23 doubt that a claimant is, in fact, disabled,” remand for further administrative proceedings 24 is required even if all conditions of the credit-as-true rule are satisfied. Garrison, 759 25 F.3d at 1021. 26 Here, no physician opined that Plaintiff has disabling limitations, and the medical 27 records indicate Plaintiff’s COPD and congestive heart failure are stable with treatment. 28 The Court finds that remand is appropriate to allow the ALJ to (1) reconsider Plaintiff’s residual functional capacity in light of her symptom testimony, and (2) further develop 2|| the record regarding the skills Plaintiff acquired in her prior job as a customer order clerk. 3 IT IS ORDERED that Plaintiff's Objection (Doc. 27) is partially granted, as set 4|| forth above. 5 IT IS FURTHER ORDERED that Magistrate Judge Ferraro’s Report and || Recommendation (Doc. 26) is partially accepted and partially rejected, as set forth 7\| above. 8 IT IS FURTHER ORDERED that the final decision of the Commissioner of Social Security is reversed, and this case is remanded to the Commissioner for further || proceedings consistent with this decision. The Clerk of Court is directed to enter 11 |} judgment accordingly and close this case. 12 Dated this 25th day of March, 2022. 13 14 ff phils □□ 16 Honorable Rostehary Mafquez 17 United States District □□□□□ 18 19 20 21 22 23 24 25 26 27 28

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