Cristina Flores v. Kilolo Kijakazi, No. 2:2020cv00477 - Document 19 (C.D. Cal. 2021)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. [See document for further details.] (es)

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Cristina Flores v. Kilolo Kijakazi Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CRISTINA F., 12 13 Plaintiff, v. 14 KILOLO KIJAKAZI, Acting 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:20-cv-00477-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On January 16, 2020, plaintiff Cristina F. filed a Complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking review of a denial of a period of disability, disability 24 insurance benefits (“DIB”), and supplemental security income (“SSI”). The parties 25 have fully briefed the issue in dispute, and the court deems the matter suitable for 26 adjudication without oral argument. 27 Plaintiff presents one disputed issue for decision, namely whether the 28 Administrative Law Judge (“ALJ”) improperly discounted plaintiff’s subjective 1 Dockets.Justia.com 1 symptom testimony. Plaintiff’s Memorandum in Support of Complaint (“P. 2 Mem.”) at 5-11; see Defendant’s Memorandum in Support of Answer (“D. Mem.”) 3 at 2-6. 4 Having carefully studied the parties’ memoranda, the Administrative Record 5 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 6 the ALJ did not provide clear and convincing reasons to discount plaintiff’s 7 testimony. The court therefore remands this matter to the Commissioner in 8 accordance with the principles and instructions enunciated in this Memorandum 9 Opinion and Order. 10 II. 11 FACTUAL AND PROCEDURAL BACKGROUND 12 Plaintiff, who was 50 years old on the alleged disability onset date, attended 13 some high school. AR at 36 n.1, 253. Plaintiff has past relevant work as a cashier, 14 and allegedly possesses limited English-speaking proficiency. AR at 233-34, 243. 15 On October 31, 2016, plaintiff filed an application for a period of disability 16 and DIB, followed by an application for SSI on November 1, 2016. AR at 254, 17 270. Plaintiff alleges a disability onset date of September 1, 2015 due to 18 depression, anxiety, anemia, arthritis, and tinnitus. AR at 253-54, 269-70. 19 Plaintiff’s applications were initially denied on February 2, 2017. AR at 286. 20 Plaintiff requested a hearing, which the assigned ALJ held on July 30, 2018. 21 AR at 226. Plaintiff, represented by counsel and assisted by a Spanish language 22 interpreter, appeared and testified at the hearing. AR at 228-43. The ALJ also 23 heard testimony from Ronald Hatakeyama, a vocational expert. R at 241-50. The 24 ALJ denied plaintiff’s claims on November 30, 2018. AR at 36-52. 25 Applying the well-established five-step sequential evaluation process, the 26 ALJ found, at step one, that plaintiff has not engaged in substantial gainful activity 27 since September 1, 2015, the alleged onset date. AR at 39. 28 2 1 At step two, the ALJ found plaintiff suffers from several severe 2 impairments: depression, anemia, mild right knee joint space narrowing, plantar 3 fasciitis, and chiari malformation. Id. 4 At step three, the ALJ found plaintiff’s impairments, whether individually or 5 in combination, did not meet or medically equal one of the listed impairments set 6 forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR at 41. The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 7 8 determined she had the RFC to perform light work, with the following limitations: 9 The claimant is able to lift 20 pounds occasionally and 10 pounds 10 frequently; stand 6 hours in an 8-hour workday and sit 6 hours in an 11 8-hour workday; occasionally climb ramps and stairs; never climb 12 ladders, ropes, and scaffolds; occasionally balance, stoop, kneel, 13 crouch, and crawl; frequent fingering bilaterally; be able to sit for 2-3 14 minutes after standing for 30 to 60 minutes, and stand for 2-3 minutes 15 after sitting for 30 to 60 minutes; use a walker to and from the 16 workstation, but not at the workstation for balancing; avoid working 17 outside in bright sunlight; no work with bright lights, and avoid 18 excessive noise. The individual can understand and follow simple 19 instructions and directions; perform simple tasks with or without 20 supervision; can maintain attention and concentration for simple tasks; 21 regularly attend to a routine and maintain a schedule; can relate to and 22 interact appropriately with co-workers and supervisors but should 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115526 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 3 1 have only occasional interaction with the public. Work should be 2 limited to simple tasks, involving only simple, work-related decisions 3 with few, if any, work place changes. The individual can only speak 4 and understand simple English. 5 AR at 45-46. 6 The ALJ found, at step four, that plaintiff was unable to perform her past 7 relevant work as a cashier. AR at 50. 8 At step five, the ALJ considered plaintiff’s age, education, work experience, 9 and RFC, and found plaintiff could perform jobs that exist in significant numbers 10 in the national economy, including small products assembler, general inspector, 11 and office helper. AR at 51-52. Accordingly, the ALJ concluded plaintiff was not 12 under a disability, as defined in the Social Security Act. 13 Plaintiff filed a timely request for review, but the Appeals Council denied 14 the request on November 21, 2019. AR at 1-4. Accordingly, the ALJ’s decision is 15 the final decision of the Commissioner. 16 III. 17 STANDARD OF REVIEW 18 This court is empowered to review decisions by the Commissioner to deny 19 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 20 Administration must be upheld if they are free of legal error and supported by 21 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 22 (as amended). But if the court determines the ALJ’s findings are based on legal 23 error or are not supported by substantial evidence in the record, the court may 24 reject the findings and set aside the decision to deny benefits. Aukland v. 25 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 26 1144, 1147 (9th Cir. 2001). 27 “Substantial evidence is more than a mere scintilla, but less than a 28 4 1 preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial 2 evidence is such “relevant evidence which a reasonable person might accept as 3 adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 4 1998) (citations omitted); Mayes, 276 F.3d at 459. To determine whether 5 substantial evidence supports the ALJ’s finding, the reviewing court must review 6 the administrative record as a whole, “weighing both the evidence that supports 7 and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 8 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific 9 quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (internal quotation 10 marks omitted). If the evidence can reasonably support either affirming or 11 reversing the ALJ’s decision, the reviewing court “may not substitute its judgment 12 for that of the ALJ.” Id. (internal quotation marks omitted). 13 IV. 14 DISCUSSION 15 Plaintiff argues the ALJ failed to provide specific, clear, and convincing 16 reasons for rejecting her subjective symptom testimony. P. Mem. at 5. Plaintiff 17 contends the ALJ’s only reason – that her testimony was inconsistent with the 18 objective medical evidence – is insufficient under the law. Id. at 10-11. Defendant 19 maintains the ALJ listed several reasons for discounting plaintiff’s testimony, 20 including her inconsistent statements and a lack of supporting objective medical 21 evidence. See D. Mem. at 2-4. 22 As an initial matter, the court looks to Social Security Ruling (“SSR”) 16-3p 23 for guidance on evaluating plaintiff’s alleged symptoms. SSR 16-3p rescinded and 24 superseded SSR 96-7p and applies to decisions made on or after March 28, 2016. 25 SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). “Although SSRs do not 26 have the same force and effect as statutes or regulations, they are binding on all 27 components of the Social Security Administration.” Id. (citing 20 C.F.R. 28 5 1 § 402.35(b)(1)). 2 In adopting SSR 16-3p, the Social Security Administration sought to “clarify 3 that subjective symptom evaluation is not an examination of an individual’s 4 character.” Id. at *2. 5 [SSR 16-3p] makes clear what our precedent already required: that 6 assessments of an individual’s testimony by an ALJ are designed to 7 evaluate the intensity and persistence of symptoms after the ALJ finds 8 that the individual has a medically determinable impairment(s) that 9 could reasonably be expected to produce those symptoms, and not to 10 delve into wide-ranging scrutiny of the claimant’s character and 11 apparent truthfulness. 12 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (internal quotation 13 marks and alterations omitted). 14 To evaluate a claimant’s symptom testimony, the ALJ engages in a two-step 15 analysis. Christine G. v. Saul, 402 F. Supp. 3d 913, 921 (C.D. Cal. 2019) (quoting 16 Trevizo, 871 F.3d at 678). First, the ALJ must determine whether the claimant 17 produced objective medical evidence of an underlying impairment that could 18 reasonably be expected to produce the symptoms alleged. Id. Second, if the 19 claimant satisfies the first step, and there is no evidence of malingering, the ALJ 20 must evaluate the intensity and persistence of the claimant’s symptoms and 21 determine the extent to which they limit her ability to perform work-related 22 activities. Id. In assessing intensity and persistence, the ALJ may consider: a 23 claimant’s daily activities; the location, duration, frequency, and intensity of the 24 symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, 25 and side effects of medication taken to alleviate the symptoms; other treatment 26 received; other measures used to relieve the symptoms; and other factors 27 concerning the claimant’s functional limitations and restrictions due to the 28 6 1 symptoms. Id. (citing 20 C.F.R. § 416.929; SSR 16-3p, 2017 WL 5180304, at *4; 2 Smolen v. Chater, 80 F.3d 1273, 1283-84 & n.8 (9th Cir. 1996)). If the ALJ rejects 3 the claimant’s subjective symptom statements at step two, the ALJ must provide 4 “specific, clear, and convincing” reasons, supported by substantial evidence in the 5 record, for doing so. Id. at 921, 929. 6 Here, at the first step, the ALJ found plaintiff’s medically determinable 7 impairments could reasonably be expected to cause the symptoms alleged. AR at 8 50. At the second step, the ALJ discounted plaintiff’s testimony. Id. Because 9 plaintiff cleared step one and the ALJ found no evidence of malingering, the ALJ’s 10 reasons for discounting plaintiff’s testimony had to be specific, clear, convincing, 11 and supported by substantial evidence. 12 In discounting plaintiff’s testimony, the ALJ set forth the standard to be 13 followed in considering a claimant’s symptoms, recounted plaintiff’s pertinent 14 testimony regarding her symptoms, and provided a thorough discussion of the 15 medical evidence in the record, including plaintiff’s treatment history and the 16 medical opinions. AR at 46-50. The ALJ then concluded that while plaintiff’s 17 impairments could cause her alleged symptoms, her “statements concerning the 18 intensity, persistence, and limiting effects of these symptoms are not entirely 19 consistent with the medical evidence and other evidence in the record for the 20 reasons explained in this decision.” AR at 50. The ALJ gave no clear indication 21 what “other evidence” in the record the ALJ found to be inconsistent with 22 plaintiff’s testimony. 23 Where an ALJ rejects a claimant’s testimony, the ALJ must “specifically 24 identify the testimony [from the claimant] that she or he finds not to be credible 25 and . . . explain what evidence undermines the testimony.” Treichler v. Comm’r of 26 Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Holohan, 246 F.3d at 27 1208). The ALJ here explicitly found the medical evidence to be inconsistent with 28 7 1 plaintiff’s symptom testimony, but plaintiff argues there was no “logical bridge” 2 between the testimony the ALJ found unsupported and the evidence that 3 undermines it. P. Mem. at 9 (citing Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 4 2003)); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (ALJ must 5 identify which of claimant’s statement are found not credible and why). While the 6 lines between plaintiff’s testimony and the inconsistent medical evidence here 7 might have been more explicitly drawn, on balance the court finds the ALJ’s 8 juxtaposition of plaintiff’s testimony and the inconsistent medical evidence to have 9 been sufficiently clear for the court to evaluate. See AR at 46-49. But this is not 10 enough. 11 The lack of objective medical evidence to support allegations of limitations 12 is a factor that may be considered when evaluating the testimony, but it is 13 insufficient by itself. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 14 (lack of corroborative objective medicine may be one factor in evaluating 15 subjective symptom testimony); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 16 1991) (an ALJ “may not reject a claimant’s subjective complaints based solely on a 17 lack of objective medical evidence to fully corroborate the alleged severity of 18 pain”); accord Christine G., 402 F. Supp. 3d at 923. Here, the ALJ only clearly 19 cited lack of supporting medical evidence as a reason to discount plaintiff’s 20 testimony. 21 Defendant points to inconsistent statements by plaintiff that the ALJ noted 22 elsewhere in the decision and might have been a basis used by the ALJ to discount 23 plaintiff’s testimony. See D. Mem. at 3. But it is not at all clear that the ALJ in 24 fact relied on any of these in discounting plaintiff’s testimony. For example, 25 defendant points to a footnote in the ALJ’s decision that notes inconsistencies in 26 the record regarding plaintiff’s English language abilities (see AR at 36 n.1); 27 however, it is unclear whether the ALJ relied on this inconsistency in discounting 28 8 1 plaintiff testimony and, if so, what aspect of plaintiff’s testimony this would 2 undercut. To the extent this might go to plaintiff’s credibility generally, it would 3 seem to go against the new SSR, which urges SSA judges “not to delve into wide4 ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo, 5 871 F.3d at 678 n.5. The ALJ also pointed to plaintiff’s testimony that she no 6 longer had a desire to work after her mother died as inconsistent with her testimony 7 she was unable to return to work due to a knee problem. AR at 42. But even if the 8 ALJ relied on this in discounting plaintiff’s testimony – and again, this is not 9 apparent – there is not necessarily anything inconsistent in being unable to work 10 due to a knee problem and also having no desire to work due to mental health 11 issues. 12 In short, the only reason the ALJ articulated for discounting plaintiff’s 13 testimony was that her subjective symptoms were not supported by the objective 14 medical evidence. By itself, this was not a clear and convincing reason. The ALJ 15 therefore erred in discounting plaintiff’s testimony. 16 V. 17 REMAND IS APPROPRIATE 18 The decision whether to remand for further proceedings or reverse and 19 award benefits is within the discretion of the district court. McAllister v. Sullivan, 20 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 21 discretion to direct an immediate award of benefits where: “(1) the record has been 22 fully developed and further administrative proceedings would serve no useful 23 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 24 evidence, whether claimant testimony or medical opinions; and (3) if the 25 improperly discredited evidence were credited as true, the ALJ would be required 26 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 27 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 28 9 1 instructions to calculate and award benefits). But where there are outstanding 2 issues that must be resolved before a determination can be made, or it is not clear 3 from the record that the ALJ would be required to find a plaintiff disabled if all the 4 evidence were properly evaluated, remand for further proceedings is appropriate. 5 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 6 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 7 further proceedings when, even though all conditions of the credit-as-true rule are 8 satisfied, an evaluation of the record as a whole creates serious doubt that a 9 claimant is, in fact, disabled. Garrison, 759 F.3d at 1021. 10 Here, as set forth above, remand is appropriate because there are outstanding 11 issues that must be resolved before it can be determined whether plaintiff is 12 disabled. The ALJ must reconsider plaintiff’s testimony and either credit her 13 testimony or provide clear and convincing reasons to reject it. The ALJ must then 14 reassess plaintiff’s RFC, and proceed through steps four and five to determine what 15 work, if any, plaintiff is capable of performing. 16 VI. 17 CONCLUSION 18 IT IS THEREFORE ORDERED that Judgment shall be entered 19 REVERSING the decision of the Commissioner denying benefits, and 20 REMANDING the matter to the Commissioner for further administrative action 21 consistent with this decision. 22 23 DATED: September 30, 2021 24 25 SHERI PYM United States Magistrate Judge 26 27 28 10

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