Javier Zepeda v. Kilolo Kijakazi, No. 5:2022cv02079 - Document 19 (C.D. Cal. 2023)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott: For the reasons stated below, Plaintiff's motion for remand is GRANTED. [SEE DOCUMENT FOR FURTHER INFORMATION.] (es)
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Javier Zepeda v. Kilolo Kijakazi Doc. 19 1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Case No. 5:22-cv-02079-KES JAVIER Z., Plaintiff, MEMORANDUM OPINION AND ORDER v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant. 17 18 I. 19 INTRODUCTION 20 On November 23, 2022, Plaintiff Javier Z. (“Plaintiff”) filed a Complaint for 21 review of denial of social security disability benefits. (Dkt. 1.) Plaintiff filed 22 Plaintiff’s Brief (“PB”) under the Rule 6 of the Supplemental Rules for Social 23 Security Actions under 42 U.S.C. § 405(g). (Dkt. 14.) Defendant filed a 24 responding Commissioner’s Brief (“CB”) under the Rule 7. (Dkt. 17.) Plaintiff 25 filed a reply brief (“PRB”) on June 9, 2023. (Dkt. 18.) 26 For the reasons stated below, Plaintiff’s motion for remand is GRANTED. 27 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND 3 In June 2020, Plaintiff applied for Title II Disability Insurance Benefits 4 alleging a disability onset date of April 20, 2012, due to an industrial accident. 5 Administrative Record (“AR”) 21, 158-75. On September 21, 2021, an 6 Administrative Law Judge (“ALJ”) conducted a telephonic hearing at which 7 Plaintiff, who was represented by counsel, appeared and testified with the 8 assistance of an interpreter, along with a vocational expert (“VE”). AR 38-62. 9 On November 29, 2021, the ALJ issued an unfavorable decision. AR 21-33. 10 First, the ALJ determined that Plaintiff’s last date insured (“LDI”) was December 11 31, 2017, such that Plaintiff needed to establish disability on or before that date. 12 AR 22. He had not engaged in substantial gainful activity from April 2012 through 13 December 2017. AR 23. 14 Next, the ALJ determined that through his LDI, Plaintiff suffered from the 15 severe, medically determinable impairments (“MDIs”) of “degenerative disc 16 disease; degenerative joint disease right shoulder; tendonitis right elbow; 17 degenerative joint disease right knee; and umbilical hernia.” AR 24. The ALJ 18 found that Plaintiff’s impairments of gastroesophageal reflux disease, irritable 19 bowel syndrome, sleep apnea, and adjustment disorder with depression/anxiety 20 were not severe. AR 24-25. 21 To determine Plaintiff’s residual functional capacity (“RFC”), the ALJ 22 considered Plaintiff’s testimony about the limiting effects of his symptoms (AR 23 27) as well as Plaintiff’s medical records (AR 28-29). The ALJ also considered the 24 medical opinion evidence. AR 29-31. The ALJ found that despite Plaintiff’s 25 MDIs, he had the RFC to perform light work with additional limitations including 26 (1) occasionally1 pushing/pulling with his arms; (2) occasionally performing 27 28 1 In the context of social security claims, “occasionally” means up to 1/3 of 2 1 postural activities; (3) frequently reaching with his dominate right arm; (4) never 2 climbing ladders, ropes, or scaffolds; and (5) never working in hazardous 3 environments. AR 26-27. 4 The ALJ found that Plaintiff could no longer perform his past relevant work 5 as a metalizing supervisor or metal finisher. AR 31. Plaintiff had, however, 6 acquired skills from those jobs involving metal working. AR 31. Based on the 7 RFC findings, the VE’s testimony, and other evidence, the ALJ found that Plaintiff 8 could work as a metal finish inspector (Dictionary of Occupational Titles [“DOT”] 9 703.687-014), metal sander and finisher (DOT 705.687-018), and Hand I blocker 10 (DOT 580.684-010). AR 26-27. The ALJ concluded that Plaintiff was not 11 disabled. AR 32-33. 12 III. 13 ISSUES PRESENTED Issue One: Whether the ALJ “failed to provide clear, convincing, and well- 14 15 supported reasons for rejecting Plaintiff’s allegations of physical pain and 16 dysfunction.” (PB at 5.) Issue Two: Whether the ALJ erred by failing to evaluate the medical 17 18 opinions from Pedram Navab, D.O., and Ted Tribble, Psy.D. (PB at 5.) Issue Three: Whether the ALJ failed to properly evaluate the medical 19 20 opinions from Zenia Cortes, M.D., and Scott Small, D.O. (PB at 5.) 21 IV. 22 DISCUSSION 23 A. ISSUE ONE: Plaintiff’s Symptom Testimony. 24 1. Relevant Law. 25 The ALJ engages in a two-step analysis to evaluate a claimant’s subjective 26 27 28 the workday, while “frequently” means up to 2/3 of the workday. Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *5-*6. 3 1 symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2 2007). “First, the ALJ must determine whether the claimant has presented 3 objective medical evidence of an underlying impairment [that] could reasonably be 4 expected to produce the pain or other symptoms alleged.” Id. at 1036. If so, the 5 ALJ may not reject a claimant’s testimony “simply because there is no showing 6 that the impairment can reasonably produce the degree of symptom alleged.” 7 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 8 Second, if the claimant meets the first test, the ALJ may discredit the 9 claimant’s subjective symptom testimony only by making specific findings that 10 support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010); 11 Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). Unless an ALJ finds that a 12 claimant is malingering or has failed to provide objective medical evidence in 13 support of his or her testimony, an ALJ must provide clear and convincing reasons 14 for rejecting a claimant’s subjective testimony about the severity of experienced 15 symptoms. Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015). While 16 one reason for discrediting symptom testimony can be the lack of supporting or 17 consistent objective medical evidence, that cannot be the sole reason. Burch v. 18 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). The district court may review only 19 those reasons given by the ALJ and may not affirm an ALJ’s decision to discredit 20 symptom testimony on grounds upon which the ALJ did not rely. Garrison v. 21 Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). 22 2. The ALJ’s Evaluation of Plaintiff’s Testimony. 23 After summarizing Plaintiff’s testimony, the ALJ found that while Plaintiff’s 24 MDIs “could reasonably be expected to cause the alleged symptoms,” Plaintiff’s 25 “statements concerning the intensity, persistence and limiting effects of these 26 symptoms are not entirely consistent with the medical evidence and other evidence 27 in the record for the reasons explained in this decision.” AR 27. The ALJ then 28 summarized the medical evidence under the heading “Medical Evidence.” AR 274 1 28. At the end of that summary, the ALJ wrote in a concluding paragraph that he 2 had determined Plaintiff’s RFC after considering certain listed facts from the 3 medical evidence, Plaintiff’s “subjective complaints and [his] activities of daily 4 living.” AR 29. The ALJ noted that the RFC did not need “greater or additional 5 limitations” because listed medical evidence showed “normal” or “intact” physical 6 functioning. AR 29. 7 3. 8 Plaintiff contends that the ALJ’s summary of the medical evidence does not 9 Summary of the Parties’ Arguments. clearly set forth a reason for rejecting Plaintiff’s symptom testimony. Plaintiff 10 further contends that even if the ALJ’s concluding paragraph was intended to set 11 forth and support one reason (i.e., the lack of supporting objective evidence), that 12 one reason is not enough. (PB at 11-12.) 13 Defendant counters that ALJ gave two reasons: (1) lack of supporting 14 objective evidence and (2) improvement following a conservative course of 15 treatment. (CB at 8.) As evidence that the ALJ actually gave this second reason, 16 Defendant points to the ALJ’s reference in the concluding paragraph to Plaintiff’s 17 “positive response to chiropractic care.” AR 29. Defendant notes that on the 18 preceding page, the ALJ summarized treating records that include a reference to 19 improvement with chiropractic treatment, as follows: 20 The claimant was treated with injections, medication, chiropractic 21 treatment, extracorporeal shockwave therapy, a right knee brace, and 22 LSO brace (Exhibit 3F/30/40/136/149/150/151; 7F/26; 8F). 23 Additionally, in November 2012, the claimant reported that he was 24 25 26 27 28 using a one point cane/walker/and was in a wheelchair (Exhibit 3F/83). The claimant reported improvement in his neck due to medication and improvement in his lower back due to chiropractic care (Exhibit 3F/136/137 [AR 599-600]). The claimant also declined surgical intervention for his right shoulder in March 2013 (Exhibit 5 1 3F/79). In February 2014, the claimant underwent surgery on his 2 right shoulder, and also underwent surgery on his right elbow in 3 October 2014 (Exhibit 5F/215). Additionally, the claimant 4 underwent a second right shoulder surgery and right knee arthroscopy 5 in 2016 (Exhibit 8F). 6 7 AR 28. Plaintiff replies that the ALJ did not identify positive response to 8 conservative care as a clear and convincing reason for discounting his testimony. 9 (PRB at 4.) Even if the ALJ’s decision is interpreted as providing this reason, it 10 lacks substantial evidentiary support, because the records cited by the ALJ and the 11 medical evidence generally show that Plaintiff did not experience material 12 improvement due to chiropractic care. (PRB at 5.) 13 4. Analysis. 14 Other than the lack of supporting objective medical evidence, the Court does 15 not see a second reason in the ALJ’s written decision for discounting Plaintiff’s 16 symptom testimony. If the ALJ meant to rely on Plaintiff’s positive response to 17 conservative treatment, then the ALJ failed to indicate that sufficiently clearly in 18 his written decision. The ALJ never used the words “conservative treatment.” The 19 above-quoted paragraph in which the ALJ mentions some lower-back pain 20 improvement due to chiropractic care also mentions multiple surgeries and 21 Plaintiff’s use of a wheelchair. The ALJ acknowledged that Plaintiff’s physical 22 examinations at various times revealed lumbar pain and degenerative spinal 23 changes. AR 28. 24 The medical records cited by the ALJ as evidence of improvement with 25 chiropractic care (AR 599-600) do not contradict Plaintiff’s symptom testimony. 26 The cited records are part of a workers’ compensation January 2014 Qualified 27 Medical Re-Evaluation that summarizes Plaintiff’s earlier treatment. AR 586. The 28 summarized records date from January and February 2013 and do say that 6 1 Plaintiff’s “lower back complaints have improved 25 to 50% due to chiropractic.” 2 AR 599-600. The January 2013 record, however, also reports that Plaintiff was 3 still experiencing pain rated 7/10, felt his condition was “worse overall,” and was 4 awaiting hernia surgery. AR 599. In February 2013, Plaintiff reported that he felt 5 the “same overall” as in January 2013, which included pain in many body parts in 6 addition to his lower back. AR 599-600. Plaintiff reported that immediately after 7 his industrial accident in April 2012, he received “chiropractic treatment with Dr. 8 Rodriguez, twice a week, with partial and temporary benefit noted for a few 9 hours.” AR 600. By 2014, however, he was still complaining of lower back pain 10 and was diagnosed with conditions including “lumbar spine disc herniation.” AR 11 587. In sum, the cited records do not show a positive response to conservative 12 treatment that undermines Plaintiff’s testimony about the limiting effects of his 13 pain. 14 Ultimately, the Court can discern neither a second specific, clear, and 15 convincing reason stated in the ALJ’s decision for discrediting Plaintiff’s symptom 16 testimony nor the evidence on which the ALJ relied to support that reason. 17 V. 18 CONCLUSION 19 For the reasons stated above, IT IS ORDERED that Judgment be entered 20 VACATING the decision of the Commissioner denying benefits and 21 REMANDING this case for further administrative proceedings. On remand, the 22 ALJ may wish to consider Plaintiff’s other claims of error. 23 24 DATED: June 12, 2023 _________________ _____________ KAREN E. SCOTT United States Magistrate Judge 25 26 27 28 7
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