Wimbley v. O'Malley

• Court: District Court, N.D. California
• Decided: March 31, 2025
• Docket: 3:23-cv-06189
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN FRANCISCO DIVISION 7 8 D.W.,1 Case No. 23-cv-06189-PHK

9 Plaintiff, ORDER REMANDING CASE 10 v.

11 LELAND DUDECK, Acting Commissioner of Social Security,2 12 Defendant. 13 14 Plaintiff D.W. (“Plaintiff”) brings this action under the Social Security Act, 42 U.S.C. 15 § 405(g) (“the Act”), seeking judicial review of a final decision by the Acting Commissioner of 16 the Social Security Administration, Defendant Leland Dudeck (“Commissioner”), denying his 17 applications for disability insurance benefits and supplemental security income. [Dkt. 1]. The 18 Parties have consented to proceed before a Magistrate Judge for all purposes, including the entry 19 of final judgment, under 28 U.S.C. § 636(c). [Dkt. 6; Dkt. 7]. Plaintiff has filed an Opening 20 Brief, the Commissioner has filed a Response Brief, and Plaintiff has filed a Reply Brief. [Dkt. 21 16; Dkt. 18; Dkt. 20]. The Commissioner has also filed the Administrative Record. [Dkt. 8; Dkt. 22 13]. 23

24 1 In actions involving requested review of a decision by the Commissioner of the Social Security Administration, the Court generally uses the first name and initial of last name (or just both initials) 25 of the Plaintiff in the Court’s public orders out of an abundance of caution and regard for the Plaintiff’s potential privacy concerns. 26

2 This lawsuit was initially filed against Kilolo Kijakazi, who was then the Acting Commissioner of 27 the Social Security Administration. See Dkt. 1. Pursuant to Federal Rule of Civil Procedure 25(d), 1 After carefully analyzing the briefs, the record, and the applicable law, the Court 2 REVERSES the Commissioner’s final decision and REMANDS for further proceedings 3 consistent with this Order. 4 BACKGROUND 5 The following background focuses only on the factual matters and procedural history that 6 are relevant to the Court’s analysis herein. 7 Plaintiff was born on December 23, 1965; he was thirty-eight years old on the alleged 8 disability onset date. [AR 87]. He speaks English and has a high school diploma. [AR 587-88]. 9 His employment history includes positions as a construction worker, a delivery driver, a cook, and 10 a warehouse worker. [AR 92-93, 567-78]. 11 On September 27, 2010, Plaintiff filed an application for a period of disability and 12 disability insurance benefits, pursuant to Title II of the Act, as well as an application for 13 supplemental security income, pursuant to Title XVI of the Act. [AR 507-21]. In his applications, 14 Plaintiff alleged that he had been unable to work, since June 30, 2004, due to “major back 15 problems 2 two [sic] rods in back, right eye[.]” [AR 87]. Plaintiff later supplemented his 16 applications to allege that he was unable to work, since December 2010, due to worsening 17 headaches. [AR 88]. The Commissioner denied Plaintiff’s applications, initially on April 29, 18 2011, and upon reconsideration on September 23, 2011. [AR 12]. 19 Plaintiff then successfully requested a hearing before an Administrative Law Judge 20 (“ALJ”). Hearings took place on March 8, 2012 and October 2, 2012 before ALJ Richard 21 Laverdure. [AR 36-64]. Plaintiff appeared and testified at both hearings, pro se at the March 8, 22 2012 hearing, and then represented by counsel at the October 2, 2012 hearing. Id. At the October 23 2, 2012 hearing, the ALJ also heard testimony from a Vocational Expert. [AR 41-46]. 24 On November 19, 2012, the ALJ issued a written decision denying Plaintiff’s applications, 25 and on January 28, 2024, the Appeals Council denied Plaintiff’s request for review of the ALJ’s 26 decision. [AR 71-84]. 27 Subsequently, the Parties stipulated—pursuant to the terms of a class action settlement 1 Commissioner’s decision be reversed and remanded for further administrative proceedings. See 2 AR 12. The purpose of these further administrative proceedings was to determine whether 3 Plaintiff was disabled within the meaning of the Act during the period from the alleged onset date, 4 June 30, 2004, up to the prior date of adjudication, November 19, 2012. In accordance with the 5 terms of the Hart settlement agreement, the consultative examination report prepared by Frank 6 Chen, M.D., was excluded from the record. 7 Hearings were then held on September 30, 2021 and December 7, 2022 before ALJ E. 8 Alis. [AR 1125-82]. Plaintiff appeared and testified at both hearings, accompanied by a non- 9 attorney representative. Id. The ALJ also heard testimony at the September 30, 2021 hearing 10 from a Vocational Expert. [AR 1175-82]. Medical opinions were provided by an examining 11 internal medicine physician, Dr. Rose Lewis; an examining physical medicine and rehabilitation 12 specialist, Dr. Calvin Pon; and a non-examining state agency physician, Dr. M.L. Rees. [AR 887- 13 94, 900-02, 1115-24]. 14 At the September 30, 2021 and December 7, 2022 hearings, Plaintiff testified that he 15 suffered from chronic, progressively worsening back pain stemming from a 1998 work-related 16 injury. [AR 1132, 1159, 1162]. Plaintiff testified that he underwent spinal fusion surgery, but he 17 denied that the procedure resulted in any improvement to his condition. [AR 1164-65]. Plaintiff 18 testified that he experienced pain every day, describing the pain’s severity as “[a]bout a seven, 19 eight” out of ten. [AR 1138]. He testified that the pain shot from his neck down bilaterally to his 20 feet. [AR 1157]. He testified that he experienced constant numbness in his lower back. [AR 21 1168]. Plaintiff testified that, due to the pain, he was able to sit or stand continuously for no more 22 than fifteen to twenty minutes at a time. [AR 1133]. He testified that, on a good day, he was able 23 to walk one hundred yards, and, on a bad day, only fifty yards. [AR 1168]. He testified that he 24 had difficulty bending over. [AR 1134]. 25 Plaintiff testified that, due to the physical injury from a 2007 bullet wound to his head, he 26 is completely blind in his right eye. [AR 1171]. Plaintiff testified that he lacks peripheral vision 27 and struggles with depth perception and balance. [AR 1135-36]. Plaintiff testified that he also 1 told the ALJ that he experiences these “severe” headaches “all day.” [AR 1171]. 2 Plaintiff testified that he has been homeless since around 2006 or 2007. [AR 1166]. He 3 told the ALJ that he has no income aside from government assistance. Id. Plaintiff testified that, 4 on a typical day, he does “[n]othing” except “wait[] for the pain to leave.” [AR 1137]. He told 5 the ALJ that he often lays on a park bench or sits against a car “where it’s warm” to alleviate his 6 back pain. [AR 1138, 1167]. 7 At the September 30, 2021 hearing, Plaintiff admitted that, from 2016 to 2018, he worked 8 in a warehouse distribution facility as a void filler, package filler, and crate stacker. [AR 1155]. 9 Plaintiff testified that he took the job, notwithstanding his physical impairments, because he 10 “needed to survive.” [AR 1157]. Plaintiff testified that he intended to work full-time, but because 11 he “couldn’t stand up for too long on the job” and would often need to “take off early” to rest, he 12 ultimately worked only twenty hours per week. [AR 1158]. Plaintiff testified that he quit the job 13 after sustaining a work-related injury to his shoulder in February 2017. [AR 1156]. 14 At the December 7, 2022 hearing, Plaintiff’s non-attorney representative urged the ALJ to 15 review the opinion from consulting physician, Dr. Lewis, regarding her 2022 examination of 16 Plaintiff. The ALJ responded that they would consider the opinion, noting that “given the finding 17 of the consultative examination, it’s possible that [Plaintiff] could be found disabled now.” [AR 18 1139]. However, the ALJ stressed that, pursuant to the terms of the Hart settlement agreement, 19 the ALJ’s review was “really going to be limited to the period of time from the alleged onset date 20 to the prior date of adjudication.” Id. 21 On January 25, 2023, the ALJ issued a written decision which followed the 22 Commissioner’s five-step, sequential evaluation process for determining the merits of Plaintiff’s 23 applications. [AR 12-20]. The five-step analysis requires the ALJ to consider whether the 24 claimant: (1) has engaged in “substantial gainful activity” during the alleged period of disability; 25 (2) has a medically determinable impairment or combination of such impairments that is “severe;” 26 (3) has a condition that meets or equals the severity of a listed impairment; (4) has the residual 27 functional capacity (“RFC”) to return to their past relevant work; and, if not, (5) can perform other 1 Kijakazi, 68 F.4th 498, 504 & n.3 (9th Cir. 2023). 2 In the January 25, 2023 written decision, the ALJ determined, at step one, that Plaintiff had 3 not engaged in substantial gainful employment during the relevant period, from June 30, 2004 4 through November 19, 2012. [AR 14]. At step two of the analysis, the ALJ found that Plaintiff 5 had the following severe impairments: “right eye blindness; status post gunshot wound; status post 6 lumbar laminectomy, discectomy, and fusion at L5-S1 with hardware placement[.]” [AR 15]. The 7 ALJ also found evidence of “treatment for a thumb fracture in June or July 2008,” but noted that 8 Plaintiff subsequently “reported that it was ‘a case of mistaken identity’ and that he did not receive 9 treatment for a thumb injury.” Id. None of Plaintiff’s impairments, alone or in combination, were 10 found to be presumptively disabling at step three. Id. 11 Prior to reaching step four, the ALJ assessed Plaintiff’s RFC and found him capable of 12 light work, subject to the following limitations:

13 [H]e can lift or carry 20 pounds occasionally and 10 pounds frequently, stand 6 hours in an 8-hour workday, walk 6 hours in an 8-hour workday, and sit 6 hours in 14 an 8-hour workday. He can push or pull as much as he can lift or carry. The claimant cannot work at unprotected heights or around workplace hazards that pose 15 a threat to life or limb. He cannot perform work requiring depth perception. The claimant requires the ability to alternate between sitting and standing periodically 16 throughout the workday as needed so long as he is not off task or need [sic] to leave the workstation while doing so. He cannot climb ladders, ropes, or scaffolds. He 17 can occasionally climb ramps and stairs, balance, stoop, crouch, kneel, and crawl. 18 [AR 16]. 19 In establishing this RFC, the ALJ evaluated Plaintiff’s subjective allegations of his pain 20 and other symptoms, the objective medical evidence, and the medical opinion evidence. [AR 16- 21 18]. The ALJ determined that, while Plaintiff’s medically determinable impairments could 22 reasonably be expected to cause his asserted symptoms, Plaintiff’s testimony regarding the 23 intensity, persistence, and limiting effects of the symptoms was “not entirely consistent” with the 24 overall record “at all times relevant” to the decision. [AR 17]. The ALJ likewise concluded that 25 the overall record, though supportive of some functional limitations, did not support the existence 26 of limitations greater than those set forth in the RFC assessment. 27 In reaching these conclusions, the ALJ evaluated the medical opinion evidence. The ALJ 1 17]; see AR 900-02. The ALJ summarized Dr. Pon’s findings and determinations: that Plaintiff 2 could lift and carry twenty pounds occasionally and ten pounds frequently; that he can sit, stand, 3 and/or walk six hours in an eight-hour workday; that he can occasionally stoop, crouch, kneel, 4 squat, climb ladders, and crawl; and that he can frequently climb stairs and perform pushing 5 leg/foot controls. [AR 17]. The ALJ determined that the exertional limitations opined by Dr. Pon 6 were “consistent with the evidence related to the back,” but ultimately accorded the opinion only 7 “partial weight” because Dr. Pon did not include any limitations relating to Plaintiff’s right eye 8 blindness caused by the gunshot wound. Id. 9 The ALJ next discussed Dr. Rees’s opinion. [AR 17-18]; see AR 887-94. The ALJ 10 summarized Dr. Rees’ findings and determinations: that Plaintiff “could lift and/or carry 50 11 pounds occasionally and 25 pounds frequently, stand and/or walk about 6 hours in an 8-hour 12 workday, and sit about 6 hours in an 8-hour workday.” [AR 17-18]. The ALJ gave this opinion 13 “partial weight” as follows:

14 [Dr. Rees’] limitations are not entirely consistent with the underlying evidence. The progress notes and the consultative examination report show lumbar fusion 15 with ongoing pain symptoms affecting the lower back. Dr. Pon’s examination showed reduced motor and range of motion in the hips secondary to back pain. The 16 impairment reasonably limits the claimant to light exertional work activity with some postural limitations. I am including the ability to alternate between sitting 17 and standing periodically throughout the workday to ensure there is no exacerbation of back pain symptoms. I also disagree with Dr. Rees’ failure to include any 18 specific limitations for vision impairment. 19 [AR 18]. 20 Next, after noting that the record contained “various limitations/work modifications from 21 workers compensation providers” that were given “little weight” because they did not relate to the 22 relevant time period, the ALJ discussed Dr. Lewis’s opinion regarding her June 14, 2022 23 examination of Plaintiff. [AR 18]; see AR 1115-24. The ALJ found that Dr. Lewis’s opinion— 24 which limited Plaintiff to a range of sedentary activity—provided evidence that Plaintiff’s 25 condition “ha[d] deteriorated.” [AR 18]. However, the ALJ gave Dr. Lewis’s opinion “little 26 weight,” because it was “based on clinical findings well after the relevant period (nearly a 27 decade),” and thus, “not relevant” to whether Plaintiff was disabled during the relevant period. Id. 1 conditions. [AR 18]. The ALJ found that Plaintiff’s testimony regarding “significantly 2 compromised standing/walking tolerance” was “inconsistent with the progress notes and Dr. Pon’s 3 examination, showing little to no strength deficits affecting the lower extremities.” Id. The ALJ 4 also cited a December 2010 function report, in which Plaintiff admitted to washing “a car or 2” 5 each day. Id. (citing AR 796). In addition, the ALJ referenced Plaintiff’s testimony from the 6 September 2021 hearing and summarized that testimony as follows:

7 At the September 2021 hearing, the claimant testified he was able to work from 8 2016 to 2018 in a warehouse as a void filler, package filler, and crate stacker. He stopped working due to a shoulder injury sustained after lifting ten crates over his 9 head. He reported no problems walking or standing while working and he was able to successfully work at a much higher exertional level than that called for in the 10 [RFC] assessed herein. 11 Id. 12 At step four, the ALJ determined, based on the Vocational Expert’s testimony, that 13 Plaintiff was unable to perform any past relevant work. [AR 18-19]. 14 Prior to reaching step five, the ALJ determined that Plaintiff was “defined as a younger 15 individual age 18-49, on the alleged disability onset date;” that Plaintiff “has at least a high school 16 education;” and that transferability of job skills was “not material” to the disability determination. 17 [AR 19]. 18 At step five, the ALJ found that, considering Plaintiff’s age, education, work experience, 19 and RFC, “there are jobs that exist in significant numbers in the national economy” that Plaintiff 20 can perform. Id. The ALJ determined that Plaintiff would be able to perform such 21 “representative” jobs as a sorter, bagger, or basket filler. [AR 19-20]. For that reason, the ALJ 22 concluded that Plaintiff was not under a “disability,” as defined by the Act, and denied Plaintiff’s 23 applications for benefits. [AR 20]. That denial prompted Plaintiff’s request for judicial review. 24 See Dkt. 1; AR-3. 25 STANDARD OF REVIEW 26 A district court has the “power to enter, upon the pleadings and transcript of the record, a 27 judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, 1 such cases is limited to determining: (1) whether substantial evidence supports the 2 Commissioner’s decision; and (2) whether the Commissioner’s decision comports with relevant 3 legal standards. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) (“We 4 will uphold the Commissioner’s denial of benefits if the Commissioner applied the correct legal 5 standards and substantial evidence supports the decision.”); accord Woods v. Kijakazi, 32 F.4th 6 785, 788 (9th Cir. 2022); see generally 42 U.S.C. § 405(g). 7 “Substantial evidence” is “more than a mere scintilla”—it is “such relevant evidence as a 8 reasonable mind might accept as adequate to support a conclusion. Woods, 32 F.4th at 788 9 (quoting Biestek v. Berryhill, 587 U.S. 97, 103 (2019)). “Overall, the standard of review is highly 10 deferential.” Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023) (quoting Rounds v. Comm’r, 11 807 F.3d 996, 1002 (9th Cir. 2015)); see Biestek, 587 U.S. at 103 (“[W]hatever the meaning of 12 ‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not high.”). In 13 evaluating whether substantial evidence supports a finding, the Court “must review the 14 administrative record as a whole, weighing both the evidence that supports and the evidence that 15 detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 16 1998). Any conflict in the evidence is to be resolved by the ALJ, and not the Court. Smartt v. 17 Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (“Where evidence is susceptible to more than one 18 rational interpretation, the ALJ’s decision must be affirmed.”). 19 ANALYSIS 20 As summarized above, the ALJ’s January 25, 2023 written decision under review followed 21 the Commissioner’s five-step, sequential evaluation process for determining the merits of 22 Plaintiff’s applications. [AR 12-20]; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). It is well- 23 settled that, under this analysis, the claimant has the burden to establish a prima facie case of 24 disability at steps one through four. Triechler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 25 1096 n.1 (9th Cir. 2014) (quoting Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007)). The 26 burden then shifts to the Commissioner, at step five, to show that the claimant retains sufficient 27 RFC to perform work in the national economy, given the claimant’s age, education, and work 1 A finding that a claimant is “disabled” or “not disabled” at any point in the five-step 2 review is conclusive and terminates the analysis. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 3 1999) (citing 20 C.F.R. § 404.1520). To be disabling, the claimant’s condition must be so 4 functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive 5 months. 42 U.S.C. §§ 423(d)(1)(A), (2)(A). 6 Plaintiff challenges the ALJ’s decision on several grounds. Plaintiff argues, first, that the 7 ALJ’s RFC determination is not supported by substantial evidence, because the ALJ failed to 8 incorporate or otherwise address any limitations from headaches. [Dkt. 16 at 6-7]. Next, Plaintiff 9 argues that the ALJ’s specific RFC finding—that Plaintiff “requires the ability to alternate 10 between sitting and standing periodically throughout the workday as needed . . . to ensure there is 11 no exacerbation of back pain symptoms”—is “conclusory” and “unsupported” by medical 12 evidence or the overall record. Id. at 8. Third, Plaintiff argues that the ALJ improperly evaluated 13 his subjective allegations regarding pain and other limitations. Id. at 9-12. Finally, Plaintiff 14 argues that the ALJ erred at step five of the analysis by adopting Vocational Expert testimony that 15 was “unreliable,” and thus, not supported by substantial evidence. Id. at 12-18. 16 The Commissioner argues in response that the ALJ properly considered the entire 17 evidentiary record and followed the applicable, controlling law in determining that Plaintiff is not 18 disabled for purposes of the Act. [Dkt. 18 at 6-18]. 19 I. Limitations Due to Headaches 20 Plaintiff’s first asserted ground for error is that the ALJ’s RFC determination is not 21 supported by substantial evidence, because the ALJ failed to discuss or otherwise analyze the 22 extent to which Plaintiff is limited by headaches. [Dkt. 16 at 6-7]. 23 “At step two of the disability analysis, the ALJ must determine whether the claimant has 24 any ‘severe medically determinable’ impairments.” Ferguson v. O’Malley, 95 F.4th 1194, 1198 25 (9th Cir. 2024) (quoting 20 C.F.R. § 416.920(a)(4)(ii)). “A ‘severe impairment’ is one that 26 significantly limits a claimant’s ability to perform basic work activities.” Id. (quoting 20 C.F.R. § 27 416.920(c)). “[B]asic work activities” are defined as “the abilities and aptitudes necessary to do 1 carrying, and mental functions such as understanding and remembering simple instructions, 2 responding appropriately in a work setting, and dealing with changes in a work setting. 20 C.F.R. 3 §§ 404.1522(b), 416.922(b). “An impairment is not severe if it is merely ‘a slight abnormality (or 4 combination of slight abnormalities) that has no more than a minimal effect on the ability to do 5 basic work activities.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting SSR 96- 6 3(p)). The step-two inquiry is “merely a threshold determination meant to screen out weak 7 claims.” Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (citing Bowen v. Yuckert, 48 U.S. 8 137, 146-47 (1987)). 9 Once the ALJ finds that the claimant has at least one severe impairment at step two, the 10 ALJ must consider all of the claimant’s impairments when formulating the claimant’s RFC at step 11 four, including those impairments the ALJ determined to be non-severe. Buck, 869 F.3d at 1048- 12 49. An RFC must account for all of a claimant’s medically determinable impairments (whether 13 severe or non-severe) and must reflect the total limiting effects of all such impairments. 20 C.F.R. 14 §§ 404.1545(e), 416.945(e); Buck, 869 F.3d at 1049; see also SSR 96-8p, 1996 WL 374184, at *5 15 (“In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an 16 individual’s impairments, even those that are not ‘severe.’”). 17 While the regulations require the ALJ to consider the limiting effects of all impairments 18 (both severe and non-severe) in assessing the RFC, they do not require the ALJ to translate every 19 non-severe impairment into a functional limitation in the RFC. D.L.P. v. Kijakazi, No. 21-cv- 20 00792-VKD, 2022 WL 4472064, at *3 (N.D. Cal. Sept. 26, 2024) (citations omitted). “Provided 21 the ALJ does not rely on boilerplate language, but actually reviews the record and specifies 22 reasons supported by substantial evidence for not including the non-severe impairment, the ALJ 23 has not committed legal error.” Id. (citation omitted). 24 In the written decision, the ALJ determined, at step two, that Plaintiff has severe 25 impairments, including right eye blindness and back impairment. [AR 15]. The ALJ then 26 determined that Plaintiff was able to perform light work (subject to certain limitations), and that he 27 was capable of performing jobs such as a sorter, bagger, or basket filler. [AR 16-20]. 1 disability based on headaches. [AR 16 (“The claimant alleged disability based on back 2 impairment, right eye impairment, and headaches.”)]. However, the ALJ failed to categorize 3 Plaintiff’s headaches as a severe or non-severe impairment that affected his RFC, or otherwise 4 discuss the extent to which Plaintiff’s testimony regarding limitations from headaches was 5 supported by other evidence in the record. The ALJ’s written decision acknowledges that Plaintiff 6 “testified that he experienced severe headaches since being shot in the right eye” and that a 7 September 2012 treatment record contained Plaintiff’s complaints of “headaches since the June 8 2008 gunshot injury.” [AR 16-17]. However, the ALJ’s written decision does not analyze 9 whether the headaches were severe or non-severe impairments, and does not explicitly make a 10 finding on whether the headaches were medically determinable impairments (although the written 11 decision’s reference to the September 2012 treatment record would appear to imply that they are 12 medically determinable). 13 The record contains corroborated evidence regarding Plaintiff’s severe headaches during 14 the relevant time period. See, e.g., AR 48 (testifying at the 10/2/12 hearing: “I have serious 15 headaches all the time frequently.”); AR 96 (“My headaches have worsened.”); AR 580 16 (complaining of “headaches” on a 12/14/10 Function Report); AR 835-37 (noting in a 9/7/12 17 treatment record Plaintiff’s complaints of persistent, daily headaches). 18 Despite Plaintiff’s arguments based on the headaches and the corroborated evidence 19 discussed above, the ALJ’s RFC formulation did not include any limitations from Plaintiff’s 20 headaches, and did not include any analysis or reasoned explanation as to why such limitations 21 were not included. The ALJ’s failure to address the headaches issue was of legal significance and 22 ultimately harmful to Plaintiff, because this failure to address the headaches affected the 23 hypothetical questions posed to the Vocational Expert. See Hill v. Astrue, 698 F.3d 1153, 1162 24 (9th Cir. 2012) (“If a vocational expert's hypothetical does not reflect all the claimant's limitations, 25 then the expert's testimony has no evidentiary value to support a finding that the claimant can 26 perform jobs in the national economy.”). 27 Accordingly, in light of the record and in view of applicable legal standards, the Court 1 (MDD), 2020 WL 114196, at *1-2 (S.D. Cal. Jan. 10, 2020); Lord v. Colvin, No. C13-1775-MJP, 2 2014 WL 4436924, at *7-8 (W.D. Wash. Sept. 8, 2014). 3 II. Sit/Stand Limitation 4 Plaintiff next argues that the ALJ’s finding regarding Plaintiff’s sitting and standing 5 limitation is “conclusory” and “unsupported” by medical evidence or the overall record. [Dkt. 16 6 at 8]. Specifically, the ALJ’s written decision found that Plaintiff “requires the ability to alternate 7 between sitting and standing periodically throughout the workday as needed . . . to ensure there is 8 no exacerbation of back pain symptoms.” [AR 16]. 9 It is not sufficient to show that an error exists in an RFC determination—a Plaintiff must 10 also show that the error is harmful (or not harmless). “Generally, if the ALJ assesses a more 11 restrictive RFC, even if the ALJ erred in the assessment, the error is harmless because the 12 additional restriction is more favorable to the plaintiff.” Clara Ann K. v. Saul, No. 3:19-cv-01099- 13 BEN-NLS, 2020 WL 5658720, at *14 (S.D. Cal. Sept. 22, 2020); Brown-Hunter v. Colvin, 806 14 F.3d 487, 492 (9th Cir. 2015) (“Even when the ALJ commits legal error, we uphold the decision 15 where that error is harmless,” such as when “it is inconsequential to the ultimate nondisability 16 determination.”). “Where harmfulness of the error is not apparent from the circumstances, the 17 party seeking reversal must explain how the error caused harm.” McLeod v. Astrue, 640 F.3d 881, 18 887 (9th Cir. 2011). 19 The Court agrees that the ALJ’s sit/stand limitation is not artfully worded and also that 20 there is insufficient explanation as to the reason for the limitation. However, Plaintiff offers no 21 explanation as to why he believes the ALJ’s sit/stand finding was harmful. Even assuming the 22 ALJ erred in giving Plaintiff a more restrictive sit/stand limitation, the ALJ's more restrictive RFC 23 reduced the number of potential jobs available in the national economy that Plaintiff could 24 perform. A more restrictive RFC finding is, at least facially, favorable to Plaintiff. That is, a 25 reduction in the number of potential jobs available (due to the sit/stand limitation) increases (and 26 does not decrease, on this record) the strength of the argument and thus the likelihood of a finding 27 that Plaintiff is disabled. Because the error complained of here was, if anything, not harmful to 1 taken to be error) proved “inconsequential to the ultimate nondisability determination.” Leach v. 2 Kijakazi, 70 F.4th 1251, 1256 (9th Cir. 2023) (“[W]e conclude that the error was harmless because 3 it was inconsequential to the ultimate nondisability determination.”). The record shows that, even 4 when the ALJ used the more restrictive RFC with the complained of sit/stand limitation, the ALJ 5 still did not render a favorable disability finding. Put another way, Plaintiff here has not shown 6 how or why the ALJ could have reached a different disability finding had they used a less 7 restrictive RFC finding which excluded the sit/stand limitation. In this situation and on this 8 record, Plaintiff has not established why any error here ultimately harmed Plaintiff. 9 Accordingly, the Court finds no reversible error with respect to this issue because any error 10 with regard to the sit/stand limitation was harmless. 11 III. Whether the ALJ Erred in Evaluating Plaintiff’s Subjective Allegations of Pain 12 Plaintiff next challenges the ALJ’s RFC findings, which are based on an evaluation of the 13 Plaintiff’s subjective allegations regarding the intensity, persistence, and limiting effects of his 14 medically determinable impairments and the pain resulting therefrom, including a credibility 15 determination. [Dkt. 16 at 9-12]. 16 “[S]ubstantial evidence does not support an ALJ's RFC assessment if ‘the ALJ improperly 17 rejected [the claimant's] testimony as to the severity of his pain and symptoms.’” Ferguson v. 18 O’Malley, 95 F.4th 1194, 1199 (9th Cir. 2023) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 19 1035 (9th Cir. 2007)). The Ninth Circuit has established a two-part analysis for determining the 20 extent to which a claimant’s symptom testimony must be credited. Trevizo v. Berryhill, 871 F.3d 21 664, 678 (9th Cir. 2017). “First, the ALJ must determine whether the claimant has presented 22 objective medical evidence of an underlying impairment which could reasonably be expected to 23 produce the pain or other symptoms alleged.” Ferguson, 95 F.4th at 1199 (quoting Garrison v. 24 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)). “If the claimant meets the first step of this analysis 25 and there is no evidence of malingering, [then in the second step] the ALJ can reject the claimant’s 26 testimony about the severity of their symptoms only by offering specific, clear and convincing 27 reasons for doing so.” Id. (quoting Garrison, 759 F.3d at 1014-15) (alteration omitted). 1 portions of the claimant’s testimony the ALJ finds “not to be credible” and “explain what evidence 2 undermines that testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (quoting 3 Treichler, 775 F.3d at 1102) (remaining citations omitted). “This is not an easy requirement to 4 meet: ‘The clear and convincing standard is the most demanding required in Social Security 5 cases.’” Trevizo, 871 F.3d at 678 (quoting Garrison, 759 F.3d at 1014-15). 6 The ALJ has the responsibility to determine “credibility, resolve[s] conflicts in the 7 testimony, and resolve[s] ambiguities in the record.” Lambert, 980 F.3d at 1277 (quoting 8 Treichler, 775 F.3d at 1098). The ALJ may not “reject a claimant’s subjective complaints based 9 solely on a lack of medical evidence to fully corroborate the alleged severity of pain.” Smartt, 53 10 F.4th at 494 (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)). Nor may the ALJ 11 “justify a credibility finding ‘by ignoring competent evidence in the record that suggests another 12 result.’” Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (quoting Gallant v. Heckler, 763 13 F.2d 1450, 1456 (9th Cir. 1984)). 14 Here, Plaintiff alleges disability from back impairment, visual impairment, and headaches. 15 In the written decision, the ALJ found that Plaintiff’s impairments could reasonably have given 16 rise to the severe pain and functional limitations to which Plaintiff testified that he suffers. [AR 17 17]. The ALJ’s decision thus relied on evaluating the credibility of Plaintiff’s testimony about 18 pain. Under the Ninth Circuit’s analytical rubric, the ALJ was accordingly required to make the 19 legally mandated subsidiary findings regarding Plaintiff’s own testimony, i.e., specifically identify 20 the testimony found not credible and explain what evidence supports that lack of credibility 21 finding. Because the ALJ made no finding that Plaintiff was malingering, the ALJ was required to 22 set forth specific, clear, and convincing reasons in support of the adverse credibility finding. 23 Garrison, 759 F.3d at 1014-15. 24 In the written decision, the ALJ evaluated Plaintiff’s credibility regarding his statements 25 about his symptoms and pain. The ALJ found that the Plaintiff’s testimony regarding the 26 intensity, persistence, and limiting effects of his symptoms was “not entirely consistent with the 27 medical evidence and other evidence in the record at all times relevant[.]” [AR 17]. Specifically, 1 Plaintiff’s testimony about symptoms was inconsistent with Plaintiff’s own statements regarding 2 his activities of daily living, including his testimony regarding his 2016-2018 employment as a 3 warehouse worker; and (2) that Plaintiff’s testimony regarding “significantly compromised 4 standing/walking tolerance” was “inconsistent” with Dr. Pon’s examination and findings. [AR 5 18]. 6 Plaintiff’s Activities of Daily Living Including His 2016-2018 Warehouse Job 7 Plaintiff argues that the ALJ’s analysis of his subjective complaints was “incomplete and 8 inaccurate,” because the ALJ relied heavily on the fact that Plaintiff “testified he was able to work 9 from 2016 to 2018 in a warehouse as a void filler, package filler, and crate stacker[,] . . . [and] 10 reported no problems walking or standing while working and he was able to successfully work at a 11 much higher exertional level than that called for in the [RFC] assessed herein.” [Dkt. 16 at 9 12 (citing AR 18)]. Plaintiff argues that the ALJ mischaracterized his testimony and omitted the fact 13 that he “did report a number of problems trying to perform” this work. Id. at 10. In addition, 14 Plaintiff argues that his earnings from the warehouse job were, in fact, “quite minimal.” Id. 15 The ALJ’s description of Plaintiff’s 2016-2018 warehouse work either ignores, rejects as 16 not credible without explanation, or mischaracterizes aspects of Plaintiff’s testimony regarding 17 difficulties performing the work. See Garrison, 759 F.3d at 1016 (finding ALJ’s selective 18 presentation of the claimant’s reported daily activities erroneous, where the ALJ failed to note that 19 the claimant had to rest between activities, needed help to do the activities, and could not always 20 complete the activities given her pain); A.P. v. Kijakazi, No. 23-cv-01184-EMC, 2024 WL 21 116307, at *10 (N.D. Cal. Jan. 10, 2024) (“The ALJ cannot mischaracterize statements and 22 documents in the record or take these out of context in order to reach [her] conclusion on the 23 claimant’s credibility.”). 24 Specifically, Plaintiff testified that he had difficulty standing; that he required numerous 25 breaks; and that he often would have to leave work early. [AR 1158]. The ALJ’s written decision 26 did not discuss these limitations on Plaintiff’s ability to work the warehouse job, much less 27 provide clear, specific reasons for discounting them. See Revels v. Berryhill, 874 F.3d 648, 668 1 discredit the claimant on the basis of activities of daily living). Based on the written decision, it is 2 unclear why the ALJ ignored this testimony, but it is clear that the ALJ did not set forth the legally 3 required analysis to demonstrate by clear and convincing evidence why the ALJ found this 4 testimony not credible. 5 Accordingly, the Court finds that remand on this issue is appropriate. 6 Dr. Pon’s Opinion 7 Plaintiff also argues that the ALJ improperly discounted Plaintiff’s subjective allegations 8 based on Dr. Pon’s consultative examination report. [Dkt. 16 at 11]. Specifically, Plaintiff takes 9 issue with the following sentences in the ALJ’s written decision: “The claimant’s reports of 10 significantly compromised standing/walking tolerance are inconsistent with the progress notes and 11 Dr. Pon’s examination, showing little to no strength deficits affecting the lower extremities. The 12 examinations do not any [sic] level of muscle atrophy or diminished muscle tone that would 13 suggest such limited standing or walking.” Id. (quoting AR 18). Plaintiff does not argue that the 14 ALJ improperly evaluated Dr. Pon’s opinion itself. Rather, Plaintiff argues that the ALJ’s reliance 15 on the opinion to discount Plaintiff’s testimony was improper because (1) the ALJ provided “no 16 specific opinion or medial [sic] reason for why muscle atrophy or strength deficits or diminished 17 muscle tone are required to support allegations of pain and limitations with standing or walking;” 18 and (2) it is “not clear that Dr. Pon was fully aware of the severity of [Plaintiff]’s lumbar spine or 19 the actual surgeries performed.” Id. 20 The Court finds no error in the ALJ’s reliance of Dr. Pon’s opinion to discount Plaintiff’s 21 symptoms testimony. The ALJ articulated clear, specific reasons for the finding to the extent 22 relied upon by Dr. Pons’s opinion. The fact that Plaintiff would have weighed this evidence 23 differently is irrelevant. See Smartt, 53 F.4th at 494 (“Where evidence is susceptible to more than 24 one rational interpretation, the ALJ’s decision must be affirmed.”). 25 Dr. Lewis’s Opinion 26 Plaintiff also argues that the ALJ improperly and unfairly concluded that Dr. Lewis’s 27 opinion regarding her 2022 one-time examination of Plaintiff was “not relevant” because it was 1 work activity in 2016-2018 was somehow relevant to the determination for disability for the 2 relevant period.” [Dkt. 16 at 11-12]. As with Dr. Pon’s opinion, Plaintiff does not argue that the 3 ALJ improperly evaluated the substance of Dr. Lewis’s opinion. Rather, quoting from Taylor v. 4 Commissioner of Social Security Administration, 659 F.3d 1228 (9th Cir. 2011), Plaintiff argues 5 that “[m]edical evaluations after the relevant time period . . . are relevant if they concern the 6 claimant’s conditions during that period.” Id. at 12. 7 Plaintiff’s reliance on Taylor is not persuasive because that case is distinguishable from the 8 situation here. In Taylor, the Ninth Circuit found that the Appeals Council had improperly failed 9 to consider an evaluation and medical source statement that post-dated the ALJ's decision. 659 10 F.3d at 1233. The doctor who created those records, however, had examined the claimant twice 11 during a five-year period prior to the expiration of his insured status, had supervised the nurse 12 practitioner who treated the claimant, and had approved the prescription of the claimant's 13 medications. Id. at 1232. The Commissioner in Taylor did not dispute that the doctor's opinion 14 concerned the claimant's impairments and limitations during the period before his insured status 15 expired. Id. Further, the Appeals Council in Taylor denied review without addressing the 16 doctor’s opinion at all. Id. at 1232-33. 17 Here, Plaintiff does not argue—and nor does the record show—that Dr. Lewis treated or 18 evaluated Plaintiff prior to the November 2012 ALJ decision date. Dr. Lewis’s opinion itself 19 explicitly states that it concerns, as of June 2022, “current limitations only.” [AR 1124]. Dr. 20 Lewis did not provide any opinions concerning past limitations. The doctor’s opinion in Taylor 21 was based on examinations during the relevant period, concerning impairments during the relevant 22 period. 659 F.3d at 1232. Unlike Taylor, Dr. Lewis’s opinion here is solely based on an 23 examination performed after the relevant time period, concerning impairment outside the relevant 24 time period. 25 The Court finds no error in the ALJ’s discounting of Dr. Lewis’s opinion as not relevant 26 for the purposes Plaintiff relies upon. The case law cited by Plaintiff is inapposite. Accordingly, 27 the Court finds that Plaintiff has failed to show error based on Dr. Lewis’s opinion which would 1 993072, at *12-13 (N.D. Cal. Mar. 15, 2017) (finding no error in Appeal Council’s refusal to 2 remand the case for consideration of similar evidence that fell outside of the relevant time period). 3 IV. Further Asserted Grounds for Reversal 4 Plaintiff raises additional arguments regarding the sufficiency of the ALJ’s step five 5 analysis. [Dkt. 16 at 12-16]. Because remand is warranted based on the ALJ’s failure to 6 adequately assess Plaintiff’s RFC, there is no need to address these other arguments at this time. 7 See Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990) (“Because we remand for 8 reconsideration of step three, we do not reach the other arguments raised.”). Having already 9 ordered a remand (which will result in a record different from the current record under 10 consideration), it makes little practical sense to devote the Parties’ and the Court’s resources to 11 whether or not there are even more reasons for that same remand. 12 The Court expresses no opinion as to the merits of Plaintiff’s other arguments not 13 specifically addressed herein. Neither Party should construe the Court’s restraint based on the 14 Court’s authority (including notions of judicial economy and practicality) as tacit approval, or 15 disapproval, of how the evidence was considered. This Order should not be read to suggest the 16 result that should be reached on remand, nor should the proceedings in this Court leading to this 17 Order (or the Order itself) be considered or construed as a waiver of any arguments. Rather, upon 18 remand, the Parties and the ALJ are directed to fully consider the evidence and all issues in 19 dispute, based on the more fulsome record ordered. 20 V. Whether to Remand for An Award of Benefits 21 When a court reverses an ALJ’s decision, “the proper course, except in rare circumstances, 22 is to remand to the agency for additional investigation or explanation.” Dominguez v. Colvin, 808 23 F.3d 403, 407 (9th Cir. 2015) (quoting Treichler, 775 F.3d at 1099). Here, Plaintiff requests that 24 the Court remand the case for the payment of benefits, or alternatively, for further proceedings. 25 [Dkt. 16 at 18-19]. 26 A remand for an award of benefits is proper, however, where (1) the ALJ has failed to 27 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical ] serve no useful purpose; and (3) if the improperly discredited evidence were credited as true, the 2 || ALJ would be required to find the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 3 995, 1020 (9th Cir. 2014) (quotation marks omitted). Even if all three requirements are satisfied, 4 || the Court retains flexibility to determine the appropriate remedy. /d. at 1020-21. 5 The first factor for remanding for an award of benefits is met because the ALJ failed to 6 || provide sufficient legal reasons for discrediting Plaintiff's symptoms testimony. The second 7 || factor for a remand for an award of benefits is not met, however, because further proceedings are 8 || necessary so that all of the medical evidence that is entitled to credit, and all of Plaintiff's 9 || impairments, may be considered in formulating an appropriate RFC. It is unclear whether the 10 || third factor is met, because it is unclear on this record what would be an appropriate RFC (after 11 considering all of the evidence and issues that the ALJ’s written decision omitted, as discussed 12 || above) and thus unclear whether there are jobs in the economy for an individual with Plaintiffs 13 as-yet-unformulated RFC. Because the factors for a remand for an award of benefits are not 14 || satisfied here, the Court will instead remand for further proceedings. 3 15 Accordingly, the Court finds that remand for further proceedings is the appropriate course a 16 || of action here. 2 17 CONCLUSION Z 18 For the foregoing reasons, IT IS ORDERED THAT: 19 1. The Commissioner’s final decision in this matter is REVERSED and this case is 20 REMANDED to the Commissioner for further administrative proceedings consistent with 21 this Order. 22 2. Plaintiff is awarded costs pursuant to Federal Rule of Civil Procedure 54(d)(1). 23 24 || ITIS SO ORDERED. 25 Dated: March 31, 2025 □ 26 : 27 United States Maristrate Judge 28