Yeargan v. Kijakazi

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 THERESA Y., Case No.: 21-cv-0814-AGS 4 Plaintiff, ORDER ON SUMMARY-JUDGMENT MOTIONS (ECF 13 & 16) 5 v. 6 Kilolo KIJAKAZI, Commissioner of Social Security, 7

8 Defendant. 9 10 The issue in this Social Security appeal is whether the judge gave specific, clear, and 11 convincing reasons for discounting claimant’s hand-pain testimony. He did not. 12 BACKGROUND 13 In 2016, Theresa Y. quit her job as a casino dealer because the “pain level[] [in her 14 hands] was so high” that it was taking a large “dosage of narcotics to get through the shift.” 15 (AR 84–85.) When she applied for Social Security disability benefits, the agency doctors 16 concluded that she could still perform light work, so her application was denied. (AR 124– 17 25, 169–71.) Theresa ultimately testified before an Administrative Law Judge about the 18 severity of her pain and the attendant limitations. (See AR 93, 96, 99–103.) 19 After the hearing, the ALJ determined that Theresa could perform light work with 20 frequent handling and reaching and no forceful gripping or grasping. (AR 48.) While she 21 could no longer work as a gambling dealer, the ALJ concluded that Theresa could do other 22 work. (AR 49–51.) In so ruling, the ALJ deemed Theresa’s testimony about the severity of 23 her hand pain “not entirely consistent with the medical evidence and other evidence in the 24 record.” (AR 47.) The ALJ thus denied her disability request. (AR 50.) 25 DISCUSSION 26 Theresa appeals the ALJ’s decision to reject her testimony. 27 28 1 A. Subjective Symptom Testimony 2 In evaluating the credibility of subjective symptom testimony, the ALJ must 3 determine “whether the claimant has presented objective medical evidence of an 4 underlying impairment which could reasonably be expected to produce the . . . symptoms 5 alleged.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). If so, and absent evidence 6 of malingering, the ALJ may only reject the claimant’s testimony about symptom severity 7 if the ALJ offers “‘specific, clear and convincing reasons’ for the rejection.” Id. The ALJ 8 must specifically identify “which symptom testimony is not credible and what facts in the 9 record lead to that conclusion.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 10 (9th Cir. 2015). Finally, the ALJ “must provide sufficient reasoning” to allow this Court to 11 perform its own review. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). 12 The ALJ here concluded that “the medical opinions” and “the clinical findings, 13 diagnostic reports, and treatment history as shown in the objective medical records” 14 undermined Theresa’s “allegations of disabling physical limitations.” (AR 47.) The 15 question is whether the ALJ gave sufficient reasons to support that conclusion. 16 1. Objective Medical Evidence 17 The ALJ contrasted Theresa’s testimony about her disabling symptoms with medical 18 evidence that failed to corroborate those complaints. (See AR 47–48.) While that is a proper 19 criticism, “subjective pain testimony cannot be rejected on the sole ground that it is not 20 fully corroborated by the medical evidence.” See Rollins v. Massanari, 261 F.3d 853, 857 21 (9th Cir. 2001); see also Kittridge v. Kijakazi, No. 21-16178, 2022 WL 2965961, at *1 22 (9th Cir. July 27, 2022) (same). So this reason alone cannot justify discounting Theresa’s 23 testimony. 24 2. Medical Opinions 25 The ALJ asserted that the “medical opinions discussed further below contravene the 26 degree to which the claimant alleges she is disabled.” (AR 47.) But in his later discussion, 27 the ALJ never identified any specific opinion that undercuts Theresa’s allegations of 28 disabling pain. (AR 48–49.) In fact, the ALJ even appeared to credit Theresa’s pain 1 testimony over the contrary medical opinions. (See AR 49.) For example, the ALJ 2 concluded that the agency medical consultants’ opinions were “not entirely persuasive,” in 3 part because they were “inconsistent” with Theresa’s “apparent difficulties with forceful 4 grasping and gripping.” (Id.) And the ALJ ultimately assessed greater restrictions on 5 forceful gripping than the various medical examiners and consultants endorsed. (See id.; 6 compare AR 46 (ALJ assessing “light work” with “no forceful gripping or grasping” 7 (emphasis added)), with AR 122 (state-agency medical consultants endorsing occasional 8 grasping, with no forcefulness restriction), AR 158 (same), AR 414 (orthopedic examiner 9 endorsing frequent grasping, with no forcefulness restriction), and AR 543 (orthopedic 10 examiner endorsing no restrictions whatsoever on the left hand).) 11 An ALJ must articulate “specific reasons” so that this Court may “review the ALJ’s 12 decision meaningfully . . . [and] ensure that the claimant’s testimony was not arbitrarily 13 discredited.” Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). And this Court 14 is “constrained to review the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 871, 15 874 (9th Cir. 2003). The cursory—and contradictory—discussion of the medical-opinion- 16 based rationale for discounting Theresa’s testimony “falls short of meeting the ALJ’s 17 responsibility to provide . . . ‘the reason or reasons upon which’ his adverse determination 18 is based.”1 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) 19

20 21 1 The ALJ’s only other arguably substantive discussion of his medical-opinion-based rationale was the statement that “there is no other evidence definitively challenging the 22 validity or accuracy of [the orthopedic consultative doctors’] examinations.” (AR 49.) But 23 the ALJ failed to explain how these examinations bolstered the consulting doctors’ opinions. An accurate test can weaken or strengthen a doctor’s opinion, but only if the ALJ 24 explains how it does so. See Timothy S. v. Comm’r, Soc. Sec. Admin., No. 3:19-CV-01644- 25 MK, 2020 WL 7755691, at *4 (D. Or. Oct. 26, 2020) (criticizing an ALJ’s reliance on “negative [nerve] tests” to reject a doctor’s “fingering limitation” when the ALJ failed to 26 explain how the tests undermined the doctor’s opinion), adopted, No. 3:19-CV-01644-MK, 27 2020 WL 7753688 (D. Or. Dec. 29, 2020). At any rate, regardless of the examination results, the ALJ never explained how the doctors’ opinions contradicted Theresa’s 28 1 (quoting 42 U.S.C. § 405(b)(1)). So this is not a clear and convincing reason to discredit 2 Theresa’s testimony. 3 3. Treatment History 4 Next, the ALJ reasoned that Theresa’s “treatment history underscores the 5 non-disabling nature of her impairments” and pointed to her hesitancy about surgery and 6 the relief she felt from “her analgesic regimen.” (AR 48.) First, the ALJ noted that Theresa 7 “does not want to proceed [with an operation] unless surgery is really necessary.” (AR 48.) 8 By highlighting this quotation, the ALJ may have been suggesting that Theresa’s pain was 9 “not as all-disabling” as she insists, which is a “permissible inference” if she “did not seek 10 an aggressive treatment program.” See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 11 2008). But that inference is not “reasonably drawn from the record.” See Batson v. Comm’r 12 of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Theresa tried a slew of 13 treatments, including “acupuncture,” “steroid injections,” “hypnosis,” “heat,” “medical 14 marijuana,” and “compression therapies.” (AR 103–04.) With her pain persisting―and 15 whatever her initial qualms about surgery―she testified that she has been, and still is, 16 pursuing an operation. (AR 85–86 (describing her efforts to see “three hand specialists in 17 southern California” and how she is “going to have to go either to northern California or 18 leave the state to try to find a surgeon”).) 19 Or perhaps the ALJ underscored Theresa’s initial reluctance to undergo surgery to 20 imply that she failed to seek more aggressive treatment. An ALJ may reasonably conclude 21 that complaints of disabling pain are “unjustified or exaggerated” when a claimant “fails 22 to seek treatment, or fails to follow prescribed treatment, for the pain.” Orn v. Astrue, 23 495 F.3d 625, 638 (9th Cir. 2007). But Theresa has been pursuing surgery. (AR 85–88.) 24 And she explained at length all her reasonable difficulties scheduling surgery, from 25 unrelated medical complications to insurance issues. (See AR 87–89, 440, 491, 501, 516.) 26 For instance, one doctor explained that a planned surgery was cancelled due to Theresa’s 27 uncontrolled “hypothyroidism,” and the next orthopedic specialist she was referred to also 28 1 “declined to operate on her.” (AR 501.) As the ALJ himself noted, two orthopedists refused 2 to operate “due to high nerve damage risk.” (AR 48.) 3 The ALJ’s reliance on the success of Theresa’s pain-medication regimen seems 4 equally suspect. Pain that is “controlled effectively with medication” is not disabling. 5 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). But neither 6 Theresa nor her physician asserted Theresa’s pain was “controlled effectively.” Rather, on 7 two occasions Theresa’s physician recorded that her pain was “relieved” by medication, 8 yet still referred her to specialists. (AR 422, 425 (orthopedics referral for “wrist pain”), 9 485, 488 (hand-specialist referral for “wrist and hand pain”).) If her pain was effectively 10 controlled, it is doubtful that she would continue to see new pain specialists as well as 11 scheduling a surgery—surgery Theresa did not want unless it was “really necessary” (AR 12 432; see, e.g., AR 516 (prescribing surgery “to remove the accessory muscle”).) While 13 medications may have relieved her symptoms, the inference that analgesics effectively 14 controlled her pain is not “reasonably drawn from the record.” See Batson, 359 F.3d at 15 1193. 16 Thus, Theresa’s treatment history is not a clear and convincing reason to discount 17 her pain testimony. 18 4. Activities of Daily Living 19 Theresa also contends that the ALJ ignored evidence from her functional report and 20 mischaracterized her ability to partake in daily living activities. (ECF 13, at 11.) But it does 21 not appear that the ALJ relied on this basis to discredit her symptom testimony. (AR 48.) 22 Instead, to support his conclusion that Theresa’s obesity did not warrant greater limits, the 23 ALJ noted that Theresa “is reportedly capable of caring for her disabled daughter, 24 preparing meals for her family, and doing light cleaning and laundry.” (AR 48.) This 25 discussion does not appear to be linked in any way to the ALJ’s conclusions about her 26 hand-pain severity. 27 Even if the ALJ did discount Theresa’s testimony based on her daily living activities, 28 he did not articulate specific, clear, and convincing reasons to do so. “Inconsistencies 1 between a claimant’s testimony and the claimant’s reported activities provide a valid 2 reason for an adverse credibility determination.” Burrell v. Colvin, 775 F.3d 1133, 1137 3 (9th Cir. 2014). But the ALJ must identify “which daily activities conflicted with which 4 part of Claimant’s testimony.” Id. at 1138. The Court may not “speculate as to the grounds 5 for the ALJ’s conclusions.” Treichler, 775 F.3d at 1103. Without further elaboration of 6 how Theresa’s caregiving, cooking, and cleaning abilities contradicted her pain allegations, 7 the Court cannot “review the ALJ’s decision meaningfully.” Brown-Hunter, 806 F.3d 8 at 494. So, assuming for the sake of argument that the ALJ relied on this ground, it is not 9 a clear and convincing reason. 10 Thus, the ALJ erred by failing to articulate enough specific, clear, and convincing 11 reasons to discount Theresa’s subjective pain testimony. 12 B. Harmless Error 13 The next question is whether that legal error was harmless. An error is harmless if 14 “no reasonable ALJ, when fully crediting the testimony, could have reached a different 15 disability determination.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citation 16 omitted). Fully crediting Theresa’s testimony, the ALJ would have assessed limitations 17 accommodating these symptoms: inability to “control her grip,” “drop[ping] things all the 18 time,” lack of “feeling in her hands,” “constant pain in her hands,” “shoot[ing] nerve pain 19 that radiates up her arm,” and “swelling in her hands . . . .” (AR 47.) According to the 20 vocational expert, there are no jobs for the “rare use of gross handling and fine 21 manipulation bilaterally.” (AR 107.) Thus, fully crediting her testimony, a reasonable ALJ 22 could have found her disabled. 23 C. Remedy 24 Given this harmful error, Theresa seeks immediate payment of benefits. (ECF 13, 25 at 13.) When “the record has been fully developed and further administrative proceedings 26 would serve no useful purpose, the district court should remand for an immediate award of 27 benefits.” Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). 28 But “[r]emand for further administrative proceedings is appropriate if enhancement of the 1 ||record would be useful.” Jd. The Court must “assess whether there are outstanding issues 2 ||requiring resolution before considering whether to hold that the claimant’s testimony is 3 credible as a matter of law.” Treichler, 775 F.3d at 1105. Remand for immediate payment 4 only appropriate when the record as a whole “leaves not the slightest uncertainty as to 5 outcome of the proceeding.” /d. at 1101. 6 More development is needed to resolve the conflicting evidence in the record. For 7 || instance, it is unclear to what extent Theresa’s pain is managed with medication. The ALJ 8 ||concluded that her pain was “relieved” by medication. (AR 48 (citing AR 422).) But 9 || Theresa testified that the narcotics themselves prevent her from working due to the high 10 dosage and related side effects. (AR 85, 99; see also AR 331 (recounting difficulties 11 || following spoken instructions when on pain medications).) Further record development is 12 ||needed to determine whether Theresa’s pain is appropriately managed by more 13 || conservative treatments. 14 And the Court is not convinced that using its discretion to remand for benefits would 15 appropriate in this case even if further development were unneeded. Both examining 16 || physicians who tested claimant found she still retained substantial strength, mobility, and 17 || capability with her upper extremities notwithstanding her complaints of pain. (See AR 412, 18 539, 543.) So, this Court has some “uncertainty as to the outcome of the [remand] 19 || proceeding.” See Treichler, 775 F.3d at 1101. 20 CONCLUSION 21 Theresa’s summary-judgment motion (ECF 13) is granted, and the Commissioner’s 22 || cross-motion for summary judgment (ECF 16) is denied. The case is remanded for further 23 || proceedings. 24 REVERSED and REMANDED. 25 || Dated: August 22, 2022 Ki 26 07 Hon. Andrew G. Schopler United States Magistrate Judge 28