Joanne Garcia v. Nancy A. Berryhill, No. 5:2018cv00997 - Document 25 (C.D. Cal. 2019)
Court Description: MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this memorandum decision. (See document for details.) (sbou)
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Joanne Garcia v. Nancy A. Berryhill Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOANNE G.,1 Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. ) Case No. EDCV 18-0997-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 19 denying her application for Social Security disability income 20 benefits (“DIB”). 21 the undersigned under 28 U.S.C. § 636(c). 22 the Court on the parties’ Joint Stipulation, filed March 6, 2019, 23 which the Court has taken under submission without oral argument. 24 For the reasons stated below, the Commissioner’s decision is 25 reversed and this action is remanded for further proceedings. The parties consented to the jurisdiction of The matter is before 26 27 28 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1980. (Administrative Record (“AR”) 3 46, 175.) 4 last worked as a medical assistant and was a sales associate and 5 loader before that. 6 She completed two years of college. (AR 196.) She (AR 233.) On May 28, 2014, Plaintiff applied for DIB, alleging that 7 she had been unable to work since January 8, 2014, because of 8 issues with her right shoulder, left knee, lower back, and left 9 hip. (AR 63, 175-78.) After her application was denied 10 initially (AR 83-84, 106-09) and on reconsideration (AR 104, 112- 11 16), she requested a hearing before an Administrative Law Judge 12 (AR 117-18). 13 Plaintiff, who was not represented by counsel, testified, as did 14 a vocational expert. 15 January 19, 2017, the ALJ found Plaintiff not disabled. 16 38.) 17 review (AR 269-72), which was denied on April 2, 2018 (AR 1-6). 18 This action followed. 19 III. STANDARD OF REVIEW 20 A hearing was held on January 10, 2017, at which (AR 44-61.) In a written decision issued (AR 24- With the assistance of counsel, she sought Appeals Council Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 25 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 26 means such evidence as a reasonable person might accept as 27 adequate to support a conclusion. 28 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 The ALJ’s findings and Substantial evidence Richardson, 402 U.S. at 401; It 1 is more than a scintilla but less than a preponderance. 2 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 3 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 4 meaning of ‘substantial’ in other contexts, the threshold for 5 such evidentiary sufficiency is not high.” 6 139 S. Ct. 1148, 1154 (2019). 7 evidence supports a finding, the reviewing court “must review the 8 administrative record as a whole, weighing both the evidence that 9 supports and the evidence that detracts from the Commissioner’s “[W]hatever the Biestek v. Berryhill, To determine whether substantial 10 conclusion.” 11 1998). 12 or reversing,” the reviewing court “may not substitute its 13 judgment” for the Commissioner’s. 14 IV. 15 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. “If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for purposes of receiving Social 16 Security benefits if they are unable to engage in any substantial 17 gainful activity owing to a physical or mental impairment that is 18 expected to result in death or has lasted, or is expected to 19 last, for a continuous period of at least 12 months. 20 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 21 1992). 42 U.S.C. 22 A. The Five-Step Evaluation Process 23 The ALJ follows a five-step evaluation process to assess 24 whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4); 25 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 26 amended Apr. 9, 1996). 27 determine whether the claimant is currently engaged in 28 substantial gainful activity; if so, the claimant is not disabled In the first step, the Commissioner must 3 1 2 and the claim must be denied. § 404.1520(a)(4)(i). If the claimant is not engaged in substantial gainful 3 activity, the second step requires the Commissioner to determine 4 whether the claimant has a “severe” impairment or combination of 5 impairments significantly limiting her ability to do basic work 6 activities; if not, the claimant is not disabled and her claim 7 must be denied. 8 9 § 404.1520(a)(4)(ii). If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to 10 determine whether the impairment or combination of impairments 11 meets or equals an impairment in the Listing of Impairments set 12 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 13 disability is conclusively presumed. § 404.1520(a)(4)(iii). 14 If the claimant’s impairment or combination of impairments 15 does not meet or equal an impairment in the Listing, the fourth 16 step requires the Commissioner to determine whether the claimant 17 has sufficient residual functional capacity (“RFC”)2 to perform 18 her past work; if so, she is not disabled and the claim must be 19 denied. 20 proving she is unable to perform past relevant work. 21 F.2d at 1257. 22 case of disability is established. 23 the claimant has no past relevant work, the Commissioner then 24 bears the burden of establishing that the claimant is not § 404.1520(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. If that happens or if 25 2 26 27 28 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 disabled because she can perform other substantial gainful work 2 available in the national economy. 3 966 F.2d at 1257. 4 final step in the sequential analysis. 5 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. § 404.1520(a)(4)(v); Drouin, That determination comprises the fifth and § 404.1520(a)(4)(v); 6 B. The ALJ’s Application of the Five-Step Process 7 At step one, the ALJ found that Plaintiff last met the 8 insured status requirements of the Social Security Act on 9 December 31, 2015, and had not engaged in substantial gainful 10 activity since January 8, 2014, the alleged onset date.3 11 26.) 12 insured Plaintiff had severe impairments of (AR At step two, he concluded that through the date last 13 status post right shoulder arthroscopic rotator cuff and 14 glenohumeral joint debridement with rotator cuff repair, 15 right shoulder sprain with impingement, status post left 16 knee 17 arthroscopic 18 status post left hip arthroscopic surgery, right knee 19 sprain, 20 degenerative disc disease, major depressive disorder and 21 obesity. arthroscopic m[e]niscectomy, meniscectomy, cervical status lumbosacral degenerative disc 22 (Id.) 23 did not meet or equal a listing. 24 found that Plaintiff’s RFC allowed her to post strain/sprain, disease, lumbar At step three, he determined that Plaintiff’s impairments (AR 27-28.) At step four, he 25 3 26 27 28 The record contains some conflicting evidence of when Plaintiff last worked (see, e.g., AR 727, 730 (Plaintiff indicating that she was working on “modified” basis on Apr. 30, 2014), but she stated many times that she last worked January 8, 2014 (see, e.g., AR 884), and the ALJ apparently determined that any work after that date was not substantial gainful activity. 5 1 lift and/or carry ten pounds occasionally, less than ten 2 pounds frequently; . . . stand or walk for two hours out 3 of an eight-hour workday with normal breaks and the use 4 of a cane; . . . sit for six hours out of an eight-hour 5 workday with normal breaks; . . . occasionally perform 6 postural activities; . . . cannot climb ladders, ropes or 7 scaffolds or crawl; . . . must avoid unprotected heights 8 and 9 including reaching overhead bilaterally; . . . frequently moving machinery; finger, feel, . . frequently 11 extremities bilaterally; . . . frequently operate foot 12 controls with the right lower extremity and occasionally 13 operate foot controls with the left lower extremity; the 14 claimant is limited to simple routine tasks [and] object 15 oriented tasks; the claimant can frequently interact with 16 coworkers, 17 cannot perform inherently stressful tasks such as taking 18 complaints. the pull with public; the reach, handle, and or can 10 supervisors push . the upper claimant 19 (AR 28.) The ALJ found that Plaintiff could not do any past 20 relevant work. 21 given her age, education, work experience, and RFC, she could 22 perform two representative jobs in the national economy. 23 37.) (AR 36.) But at step five, he determined that Thus, he found Plaintiff not disabled. 24 25 26 27 28 6 (AR 38.) (AR 1 2 V. DISCUSSION4 Plaintiff argues that the ALJ erred by improperly finding 3 that she could perform alternative work and discounting her 4 subjective pain testimony and statements. 5 As discussed below, remand is necessary based on the ALJ’s 6 improper discounting of her subjective statements. 7 Defendant concedes that the ALJ erred in identifying alternative 8 work but argues that the error was harmless (see id. at 10-12), 9 the ALJ on remand can simply revisit and correct the analysis and 10 11 record.5 A. 12 13 (See J. Stip. at 5.) Because Accordingly, the Court does not reach that issue. The ALJ Did Not Properly Evaluate Plaintiff’s Subjective Symptom Testimony As Plaintiff acknowledges, the ALJ cited her “routine and 14 conservative care” (id. at 15) and daily activities (id. at 17- 15 19) in addition to providing a “general discussion of the medical 16 evidence” (id. at 15) to support partially discounting her 17 subjective symptom testimony and statements (see generally AR 31- 18 4 19 20 21 22 23 24 25 26 27 28 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court recently held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during her administrative proceedings. (See AR 44-61, 269-72); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also generally Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), pet. for cert. filed, __ U.S.L.W. __ (U.S. Feb. 22, 2019) (No. 18-1117). 5 Defendant also argues that the claim has been forfeited because Plaintiff did not raise it during her administrative proceedings. (J. Stip. at 12.) But because Plaintiff was not represented by counsel before the ALJ and remand is in any event required, the Court declines to invoke forfeiture. 7 1 36). But, as explained below, substantial evidence did not 2 support his finding that her treatment was conservative or that 3 her daily activities were “compatible with competitive work” (AR 4 36), and inconsistency with objective evidence alone is an 5 insufficient reason to discount subjective pain testimony. 6 remand is necessary. 7 8 9 1. Thus, Applicable law An ALJ’s assessment of a claimant’s allegations concerning the severity of her symptoms is entitled to “great weight.” 10 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended) 11 (citation omitted); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 12 1985) (as amended Feb. 24, 1986). 13 believe every allegation of disabling pain, or else disability 14 benefits would be available for the asking, a result plainly 15 contrary to 42 U.S.C. § 423(d)(5)(A).” 16 F.3d 1104, 1112 (9th Cir. 2012) (citing Fair v. Bowen, 885 F.2d 17 597, 603 (9th Cir. 1989)). 18 “[T]he ALJ is not required to Molina v. Astrue, 674 In evaluating a claimant’s subjective symptom testimony, the 19 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 20 at 1035-36; see also SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 21 2016).6 “First, the ALJ must determine whether the claimant has 22 23 24 25 26 27 28 6 The Commissioner applies SSR 16-3p to all “determinations and decisions on or after March 28, 2016.” Soc. Sec. Admin., Policy Interpretation Ruling, SSR 16-3p n.27, https:// www.ssa.gov/OP_Home/rulings/di/01/SSR2016-03-di-01.html (last visited May 16, 2019). Thus, it applies here. Although the new ruling eliminates the term “credibility” and focuses on “consistency” instead, much of the relevant case law refers to credibility. But as the Ninth Circuit has clarified, SSR 16-3p makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are 8 1 presented objective medical evidence of an underlying impairment 2 [that] could reasonably be expected to produce the pain or other 3 symptoms alleged.” 4 omitted). 5 not reject a claimant’s testimony “simply because there is no 6 showing that the impairment can reasonably produce the degree of 7 symptom alleged.” 8 1996) (emphasis in original), superseded in part by statute on 9 other grounds, 10 11 Lingenfelter, 504 F.3d at 1036 (citation If such objective medical evidence exists, the ALJ may Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. § 404.1529. If the claimant meets the first test, the ALJ may discount 12 the claimant’s subjective symptom testimony only if he makes 13 specific findings that support the conclusion. 14 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 15 affirmative evidence of malingering, the ALJ must provide a 16 “clear and convincing” reason for rejecting the claimant’s 17 testimony. 18 2015) (as amended) (citing Lingenfelter, 504 F.3d at 1036); 19 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th 20 Cir. 2014). 21 symptoms is supported by substantial evidence in the record, the 22 reviewing court “may not engage in second-guessing.” See Berry v. Absent a finding or Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. If the ALJ’s evaluation of a plaintiff’s alleged Thomas v. 23 24 25 26 27 28 designed to “evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,” and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness. Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as amended) (alterations in original) (quoting SSR 16-3p). 9 1 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 2 Inconsistency with evidence in the medical record is a 3 “sufficient basis” for rejecting a claimant’s subjective symptom 4 testimony. 5 1161 (9th Cir. 2008); see also Morgan v. Comm’r of Soc. Sec. 6 Admin., 169 F.3d 595, 600 (9th Cir. 1999) (upholding “conflict 7 between [plaintiff’s] testimony of subjective complaints and the 8 objective medical evidence in the record” as “specific and 9 substantial” reason undermining statements). Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, But it “cannot form 10 the sole basis for discounting pain testimony.” 11 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins v. 12 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing then-current 13 version of § 404.1529(c)(2)). 14 2. Burch v. Relevant background 15 a. Plaintiff’s statements 16 In a February 2014 report, Plaintiff marked that she was 17 feeling “[w]orse” since her last doctor’s appointment and had 18 recently gone to the emergency room “for nerve damage.” 19 712.) 20 and “[d]ifficulty walking.” 21 (AR She had “[j]oint pain/swelling,” “[n]umbness/tingling,” (Id.) In a July 2014 function report, Plaintiff wrote that she was 22 “in constant pain that makes it hard . . . to move around.” (AR 23 215.) 24 hip pain constantly” and couldn’t “push, pull, bend, lift or 25 reach overhead.” 26 teeth, shower, and make herself something to eat but otherwise 27 would “lay down or sit down and watch TV.” 28 specified that she made “sandwiches, frozen dinners, microwavable She had “shoulder pain, neck pain, low back, knee pain and (Id.) On an average day, she would brush her 10 (AR 216.) She 1 dinners or rice and chicken” and spent “5 to 15 min[utes]” 2 cooking, with “breaks in between.” 3 (AR 217.) Plaintiff reported that she struggled to sleep because it 4 was “hard” to “get comfortable,” and she woke up “throughout the 5 night” because “the pain [was] so intense.” 6 difficulty dressing herself, writing that “it[’]s hard for me to 7 bend down and put my underwear on or my pants, put on my socks[,] 8 my shoes” and “my bra and my shirt.” 9 was also a challenge: she had “trouble scrubbing [her] body and (Id.) (AR 216.) She had Personal grooming 10 washing [her] hair,” “shaving,” and “sitting down and getting up” 11 from the toilet. 12 pain” and had to have someone help with her laundry “every two 13 weeks.” 14 “need[ed] to,” and she could “go out alone” and drive. 15 She shopped “once a month” for “30 min[utes] or so” for “hygiene 16 products” and groceries. 17 she noted that before getting hurt, she “hardly watch[ed] TV” but 18 did so now because of her “constant pain” and inability to do 19 anything else. 20 others,” and they would “talk, watch movies or help me with the 21 thing[s] I need help with” and “have dinner.” 22 go out socially. 23 24 (Id.) (AR 217.) She did not do chores because of “the She went outside “once in awhile” when she (AR 219.) (Id.) (AR 218.) Her only hobby was watching TV; Every two weeks, she spent time “with (Id.)7 She didn’t (AR 219-20.) In a check-the-box portion of the report, Plaintiff marked that she had trouble lifting, squatting, bending, standing, 25 26 27 28 7 A friend filled out a third-party function report and wrote that she “or someone else” would “come and help [Plaintiff]” “about every 2 weeks.” (AR 226; see also AR 228 (“We watch TV and movies and I help her with things she need [sic] and hang out and talk.”).) 11 1 reaching, walking, sitting, kneeling, stair-climbing, and 2 completing tasks. 3 pounds8 and needed to rest for “15-30 min[utes]” after “less 4 th[a]n half a block” of walking. 5 she used a “cane and [b]race,” which were prescribed by a doctor. 6 (AR 221; see also AR 899.) 7 (AR 220.) She couldn’t lift more than 10 (Id.) When “moving around,” On November 3, 2014, Plaintiff filled out a form, indicating 8 that she felt the “[s]ame” since her last doctor’s visit and 9 still experienced “[w]eakness” in her back, knee, and hip; 10 “[n]umbness” in her foot and knee; “[l]ocking” in her hip, back, 11 and knee; and “[s]welling” in her back and knee. 12 pain was “aggravated with” overhead reaching, lifting, pushing, 13 pulling, twisting, bending, stooping, kneeling, walking, and 14 sitting. 15 (AR 895.) Her (Id.) In an undated disability-report update, Plaintiff wrote that 16 since August 2014, her left knee had “worsen[ed]” and she would 17 “be having knee surgery in the near future.” (AR 241.) 18 was “not better” and had a “pinch.”9 Her shoulder had 19 also “worsen[ed].” 20 depress[ed],” her anxiety had “worsen[ed],” and she was suffering 21 “[p]anic attacks” and having “trouble sleep[i]ng at night.” 22 (Id.) 23 2014, her knee and hip had “worsen[ed]” and her “surgeon (Id.) (Id.) Her hip Since July 2014, she was feeling “more In another undated update, she wrote that since September 24 25 26 27 8 Plaintiff actually wrote, “I can’t lift less th[a]n 10 pounds with the back and shoulder knee hip [sic] pain,” but she most likely intended to write that she couldn’t lift “more” than that amount. (AR 220.) 9 28 Plaintiff had hip surgery on August 21, 2014. 764.) 12 (See AR 1 requested a second surgery for both body parts.” 2 hip “constantly” locked, and the knee and hip pain made it “hard 3 . . . to walk, sleep and move around.” 4 anxiety and lower back ha[d also] worsen[ed].” 5 “[w]aiting on surgery” and getting tests, injections, and 6 medication in the interim. (Id.)10 (AR 250.) Her Her “depression, (Id.) She was (AR 252.) 7 At the January 10, 2017 hearing, Plaintiff testified that 8 she had “knee pain,” “severe nerve damage on both . . . legs,” 9 “bone on bone grinding” in her knee,11 “severe pain through [her] 10 groin into [her] hip,” back pain, neck pain, right-shoulder pain, 11 and numbness and tingling in her “hand.”12 12 explained that a disc in her back “collapsed” and that “[t]hey’re 13 saying that I need back surgery.” 14 (reiterating that “they just want to focus on the back now, 15 because it has completely collapsed, my bone”).)13 16 that “they don’t want to touch [my hip], because I’m too young 17 also for a hip replacement.” (AR 48.) She (Id.; see also AR 54 She asserted (AR 54.) 18 10 19 20 21 Plaintiff indicated that an MRI on February 6, 2015, showed that her hip was “deter[ior]ating” (AR 250), but no such MRI appears in the record. 11 left. She did not specify which knee, but she likely meant her (See, e.g., AR 63.) 22 12 23 24 25 26 27 28 Plaintiff later clarified that her right hand was the one with “numbness and tingling,” explaining that although she is right-handed, she used her left hand more “because my [right] hand’s always numb.” (AR 51.) 13 The record includes a lumbar MRI from June 2016 showing “[s]evere loss of disc height and disc dessication” at “L4-5” (see AR 1029-30) but does not include any doctor’s notes recommending back surgery. Although Defendant writes that “doctors recommended spinal fusion” for Plaintiff (J. Stip. at 26), the pages she cites in support of that concession do not support it. 13 1 Plaintiff testified that “it hurts to sit” and “stand” and 2 “even hurts to lay down.” 3 about 15 to 20 minutes” before experiencing pain in her legs, 4 back, and hip. (Id.) (AR 49.) She could sit at “most . . . She felt a “constant pinch between my 5 shoulder and my arm and my neck from sitting” or “even standing.” 6 (Id.) Her feet swelled so much “to the point where I can’t even 7 put on shoes sometimes.” 8 20 minutes” but noted that “[i]t’s very painful” and repeated 9 that her doctor said she needed back surgery “to take out the (Id.) She could stand for “about 15, 10 disc, take a piece of my bone, fuse it to the back of my bone and 11 then put on screws.” 12 (id.), including when going to the bathroom, “because it’s hard 13 for me to . . . stand up and sit down” (AR 51), although she also 14 said that she used the cane at home “depending [on] what [she 15 was] doing” (id.). 16 said that “[t]hey say I need a knee replacement.” 17 estimated that she could walk “about ten minutes maybe” but tried 18 not to walk at all. 19 estimating “about eight hours, nine” total during the day. 20 52.) 21 bending, standing, sitting, writing is very painful.” 22 (AR 50.) She used her cane “at all times” She had had “two knee surgeries” already and (Id.) (AR 54.) She She spent “a lot” of time in bed, (AR She could not work because “[t]he repetitive stooping, (AR 54.) Plaintiff’s niece sometimes visited and helped her get food; 23 “sometimes she’ll even go to the grocery store or have somebody 24 help me or drive me.” 25 “hardly” did so because of the numbness in her hand and pinching 26 in her back. (AR 53.) 27 and his kids. (Id.) 28 could microwave. (AR 52.) Plaintiff was able to drive but She lived with her sister’s ex-boyfriend She “hardly” cooked, relying on food she (Id.) 14 1 Plaintiff said she had “really bad anxiety” and “depression” 2 (AR 49) and felt “sad” because she didn’t see how she would be 3 able to recover, work, or have children (AR 55). 4 b. Plaintiff’s treatment records14 5 In February 2014, as part of his ongoing progress reports 6 for Plaintiff’s workers’-compensation case, orthopedic surgeon 7 Thomas Phillips noted that his objective findings were 8 “unchanged,” presumably from December 2013 notes indicating left- 9 knee and right-shoulder “derangement” and some positive 10 impingement results. (AR 696-97, 700; see also AR 685.) 11 found evidence of a “labral tear” in the left hip and a medial 12 meniscus tear in the left knee (AR 700, 706)15 and diagnosed her 13 with right-shoulder derangement,16 lumbar myalgia, lumbar 14 myospasm, lumbar neuritis/radiculitis, lumbar sprain/strain, 15 left-hip labral tear, left-knee derangement, and left-knee medial 16 meniscus tear. 17 surgeon for [left] hip arthroscopy” and requested authorization 18 for “narcotic medication management.” 19 prescribed Norco17 and Flexeril.18 (AR 707.) He He referred her to a “hip arthroscopy (AR 700, 707.) He (AR 703, 707.) 20 21 22 14 Plaintiff’s history of injuries and treatment began in 2005 (see, e.g., AR 374, 408-29 (summarizing her treatment history)), but because her alleged onset date is January 8, 2014 (AR 175), only records after then are considered here. 23 15 24 25 An arthrogram of Plaintiff’s left knee conducted on January 21, 2014, showed a medial meniscus tear, cartilage thinning, and “[m]ild degenerative bone changes.” (AR 927.) 16 26 27 28 An arthrogram of Plaintiff’s right shoulder conducted on January 22, 2014, showed “[p]ostsurgical defects . . . in the humeral head” but otherwise unremarkable results. (AR 928-29.) 17 Norco is brand-name hydrocodone-acetaminophen. See Norco, WebMD, https://www.webmd.com/drugs/2/drug-63/norco-oral/ 15 1 At an appointment later that month, Dr. Phillips noted that 2 Plaintiff had recently gone to the emergency room for numbness 3 and tingling in both hands and “burning pain” down both legs. 4 (AR 710.) 5 feet. 6 (id.) and prescribed Medrol19 (AR 713). 7 He observed that she had decreased sensation in her (Id.) He referred her for narcotic medication management In March 2014, Dr. Phillips again referred Plaintiff to a 8 “hip arthroscopy surgeon” and “pain management . . . for narcotic 9 med[ical] management.” (AR 720.) He also prescribed a lumbar- 10 spine brace, left-knee brace, and TENS unit. (AR 721.) His 11 April 2014 notes indicated that her condition was “unchanged.” 12 (AR 725.) 13 and spasm,” and “there was tenderness to palpation, guarding and 14 spasm.” 15 palpation” and “restricted” range of motion “due to pain.” 16 Her left knee had “tenderness to palpation . . . over the joint 17 line,” but range of motion was “normal.” 18 prescribed tramadol,20 “recommend[ed] her to proceed with hip Her lumbar range of motion “was restricted due to pain (AR 730.) Her left hip also had “tenderness to (AR 731.) (Id.) He 19 20 21 22 details (last visited May 16, 2019). 18 Flexeril (which has the generic name cyclobenzaprine) is a muscle relaxant used short term to treat muscle spasms. See Flexeril Tablet, WebMD, https://www.webmd.com/drugs/2/drug-11372/ flexeril-oral/details (last visited May 16, 2019). 23 19 24 25 26 27 28 Medrol is a corticosteroid hormone that decreases the immune system’s responses to various disorders and diseases. Medrol, WebMD, https://www.webmd.com/drugs/2/drug-11321/ medrol-pak-oral/details (last visited May 16, 2019). 20 See Tramadol helps relieve moderate to moderately severe pain. See Tramadol HCL, WebMD, https://www.webmd.com/drugs/2/ drug-4398-5239/tramadol-oral/tramadol-oral/details (last visited May 16, 2019). It is “similar to opioid (narcotic) analgesics.” Id. 16 1 surgeon and pain management,” and again “request[ed] an 2 authorization for lumbar spine brace, left knee brace and TENS 3 unit.” 4 AR 735.) 5 (AR 732.) His May 2014 notes are largely the same. (See On June 18, 2014, Plaintiff met with Dr. Justin Saliman, an 6 orthopedic surgeon, for her left-hip pain. 7 observed a “[p]ositive labral stress test,” “[p]ositive pain on 8 hip flexion with internal rotation,” and some “mild” “tenderness 9 to palpation.” (Id.) (AR 753.) He On June 20, 2014, Plaintiff had a pelvic 10 x-ray that showed signs of “chronic labral degeneration” and 11 possible predisposition to “impingement” in her left hip. 12 751-52.) 13 In July 2014, Dr. Phillips noted that “pain management” was 14 “approved” and Plaintiff could now “schedule and proceed.” 15 755.) 16 brace, left-knee brace, TENS unit, and hip surgery. 17 (AR (AR She was still awaiting authorization for the lumbar-spine (Id.) On August 11, 2014, Plaintiff met with pain specialist Dr. 18 Rohini Patel. (AR 826.) 19 and sacroiliac area,” “[d]ecreased range of motion” in the lumbar 20 spine, and an “antalgic” gait. 21 examination yielded normal results (id.), but a nerve conduction 22 study showed “evidence of left L5-S1 radiculopathy” (AR 828). 23 August 14, 2014, she saw pain specialist Dr. Jonathan Kohan for 24 an initial consultation. 25 palpation over paravertebral, trapezius, deltoid, and rhomboids 26 area with moderate spasm” as well as “tenderness over paraspinous 27 muscles.” 28 but he observed “tenderness.” (AR 935.) He observed “tender lumbar para[spinal] (Id.) (AR 930.) The rest of the physical On He found “tenderness to Range of motion in her shoulder was normal, (AR 936.) 17 Her gait was 1 “antalgic,” but she could “ambulate without a cane” and “perform 2 toe and heel walk with pain in the back.” 3 evidence of pain and spasm in her lumbar spine, but her straight- 4 leg-raise tests21 were negative bilaterally. 5 knee was positive for tenderness and the McMurray test.22 6 938.) 7 regimen of “tramadol, ibuprofen creams and Flexeril[,] which have 8 been beneficial partial and temporary.” 9 that an epidural injection for the “low back and lower extremity 10 symptoms” might be helpful but decided to see how she fared with 11 medication for the next month. 12 (AR 937.) (Id.) He found Her left (AR He noted that Dr. Phillips’s office had prescribed a (AR 940.) He suggested (Id.) On August 21, 2014, Plaintiff underwent arthroscopic hip 13 surgery for “femoroplasty,”23 “[a]cetabuloplasty,”24 “[l]abral 14 repair,”25 and “[s]ynovectomy.”26 (AR 764.) While doing the 15 16 17 18 19 20 21 22 23 24 21 A straight-leg-raise test checks the mechanical movement of neurological tissues and their sensitivity to stress and compression when disc herniation is suspected. See Straight Leg Raise Test, Physiopedia, https://www.physio-pedia.com/ Straight_Leg_Raise_Test (last visited May 16, 2019). 22 A McMurray test detects internal tears in the knee joint. See Diagnosing Knee Injury with a McMurray Test, verywellhealth, https://www.verywellhealth.com/mcmurray-test-2549599 (last updated Dec. 1, 2018). 23 Femoroplasty is the removal of bony irregularities from and reshaping of the femur. See Femoroplasty, Wiktionary, https://en.wiktionary.org/wiki/femoroplasty (last updated Jan. 3, 2019). 24 25 26 27 28 Acetabuloplasty is a surgical procedure to correct dislocation of the hip. See Acetabuloplasty, Encylopedia.com, https://www.encyclopedia.com/caregiving/dictionaries-thesaurusespictures-and-press-releases/acetabuloplasty (last visited May 16, 2019). 25 Surgical labral repair involves repairing or removing the torn part of the labrum. See Hip Labral Repair, Mayo Clinic, 18 1 procedures Dr. Saliman found evidence of “CAM impingement,” 2 bruising, “extensive synovitis,” “pincer impingement,” and “an 3 impinging transition zone between the femoral head and neck.” 4 (Id.) 5 “resistant to conservative treatment modalities.” 6 He remarked that her hip issues had previously been (Id.) At a follow-up appointment on September 3, 2014, Plaintiff 7 reported “mild foot numbness” and said that she “fell twice since 8 surgery.” 9 time. 10 (AR 819.) She began physical therapy around the same (See AR 820.) On September 4, 2014, Dr. Kohan filled out a progress report 11 for Plaintiff and prescribed Norco. 12 reported “improved functional capacity with activities of daily 13 living, self grooming, and chores around the house.” 14 September 12, 2014, Dr. Kohan noted that Norco had not been 15 provided for some reason, and he resubmitted a request for Norco 16 and Zanaflex27 to be taken twice a day. 17 that “multiple orthopedic complaints increased dramatically after 18 she was not provided with the recommended medication” (AR 923) (AR 921.) She apparently (AR 924.) (Id.) On He reported 19 20 21 22 https://www.mayoclinic.org/diseases-conditions/hip-labral-tear/ diagnosis-treatment/drc-20354878 (last updated Mar. 7, 2018). 23 26 24 25 26 27 28 Synovectomy is the removal of inflamed joint tissue that can cause pain and limit functionality. See Synovectomy for Rheumatoid Arthritis, Univ. Wis. Health, https:// www.uwhealth.org/health/topic/surgicaldetail/synovectomy-forrheumatoid-arthritis/aa18893.html (last updated June 10, 2018). 27 Zanaflex treats muscle spasms. See Zanaflex, WebMD, https://www.webmd.com/drugs/2/drug-14706/zanaflex-oral/details (last visited May 16, 2019). 19 1 and flagged that ibuprofen, tramadol, gabapentin,28 and Flexeril 2 had all failed to help. 3 was “antalgic severely” and that she required crutches for 4 ambulation. 5 (AR 923-24). He observed that her gait (AR 924.) On October 2, 2014, Dr. Kohan determined that Plaintiff met 6 “criteria . . . for lumbar epidural injections.” 7 the meantime, she was “awaiting authorization for all the 8 medications we requested,” “maintained currently” on Norco, 9 Zanaflex, and Fiorinal,29 and was doing “physical therapy for the (Id.) (AR 918.) In 10 left hip.” 11 tenderness of the paravertebral muscles of the cervical and 12 lumbar spines with decreased range of motion in flexion and 13 extension.” 14 examining her left hip and knee. 15 “[m]edications are addressing her nociceptive pain30 adequately” 16 but that the “clinical impression, co[rro]brating diagnostic 17 studies, and failure to improve with conservative treatment 18 provide[d] substantial medical evidence” and justification for 19 “lumbar epidural injection at level L5-S1.” (Id.) Physical examination revealed “spasm and He observed “[d]iscomfort” when he was (AR 919.) He concluded that (Id.) 20 21 22 28 Gabapentin is an anticonvulsant used sometimes to relieve nerve pain. See Gabapentin, WebMD, https://www.webmd.com/ drugs/2/drug-14208-8217/gabapentin-oral/gabapentin-oral/details (last visited May 16, 2019). 23 29 24 25 26 27 28 Fiorinal is combination butalbital, aspirin, and caffeine, and it treats tension headaches. See Fiorinal, WebMD, https://www.webmd.com/drugs/2/drug-15819/fiorinal-oral/details (last visited May 16, 2019). 30 Nociceptive pain refers to pain from physical damage to the body, as opposed to neuropathic pain, which is caused by nerve damage. See Nociceptive and neuropathic pain: What are they?, MedicalNewsToday, https://www.medicalnewstoday.com/ articles/319895.php (last updated Nov. 2, 2017). 20 1 At an October 6, 2014 appointment, Dr. Phillips observed 2 that Plaintiff’s leg pain was “unchanged” and that knee surgery 3 was “pending” for “after hip recovery.” 4 15, 2014, she reported to her hip surgeon, Dr. Saliman, that she 5 had a “50% pain reduction from her pre-surgical state.” 6 779.) 7 stress test,” “[p]ositive pain on hip flexion with internal 8 rotation,” and “severe . . . tenderness to palpation.” 9 ordered a cortisone “XRAY [f]luoroscopy [g]uided [t]herapeutic (AR 799.) On October (AR The physical exam, however, revealed a “[m]oderate labral 10 [i]njection.” 11 2014, a representative for Dr. Phillips wrote that Plaintiff 12 would likely be able to return to modified work on November 3, 13 2014, pending treatment records from her hip surgeon and 14 continued pain management. 15 (AR 822, 824; see also AR 823.) (Id.) He On October 21, (AR 820.) On November 3, 2014, Dr. Phillips noted that Plaintiff 16 recently went to the ER and was going to have a “[h]ip injection” 17 the next day. 18 to pain and spasm,” and “[t]here were trigger points noticeable 19 in the lumbar paraspinal muscles bilaterally.” 20 range of motion in the left knee was “normal,” but “there was 21 tenderness to palpation . . . over the joint line.” 22 requested authorization for a cane and a TENS unit; braces for 23 her knee and lumbar spine had already been “dispensed.” 24 900.) 25 hip treatment” and that she was “temporarily totally disabled.”31 (AR 893.) Her range of motion “was restricted due (AR 898.) (Id.) Her He (AR 899- He wrote that “left knee surgery might be considered after 26 27 28 31 The ALJ rejected the finding that Plaintiff was temporarily totally disabled (AR 900) but seemed to accept Dr. Phillips’s “clinical findings,” noting that they were “consistent with a conclusion that the claimant could do work with the 21 1 (AR 900.) 2 knee surgery was “[l]ikely” and that his objective findings were 3 “unchanged.” 4 physical therapy but felt the “[s]ame.” 5 On December 15, 2014, Dr. Phillips noted that left- (AR 903.) Plaintiff reported that she was doing (AR 905.) On November 19, 2014, Dr. Kohan “formally appeal[ed] the 6 denial” for a lumbar epidural steroid injection, arguing among 7 other things that Plaintiff had “lower back pain radiating into 8 the left lower extremity with numbness and weakness,” “difficulty 9 with bending, stooping, squatting, and prolonged standing and 10 walking,” “decreased sensation with pain over the left L5 and S1 11 dermatomes,” and “weakness with toe and heel walking on the left 12 side as well as discomfort with flexion and extension of the left 13 knee against gravity.” 14 “attempted extensive conservative management including 15 medications and therapy but remain[ed] considerably symptomatic.” 16 (AR 916.) 17 Plaintiff was “visibly uncomfortable,” with “[s]pasm and 18 tenderness” and “[d]ecreased sensation with pain.” 19 diagnosed her with “[a]cute flare-up of myofascial pain of 20 cervical and lumbar spines” and “[c]ervical sprain/strain.” 21 (Id.) 22 (id.), arguing that she was “suffering from chronic pain” and was 23 “not on a heavy opioid regimen” (AR 913). 24 in two places with lidocaine.32 (AR 915-16.) He noted that she had On December 11, 2014, Dr. Kohan observed that (AR 912.) He He again “appealed a denied lumbar epidural injection” He injected her back (Id.) 25 26 27 28 limitations noted herein” (AR 35). 32 Lidocaine is an anesthetic used to help reduce pain. See lidocaine injection, Michigan Medicine, https:// www.uofmhealth.org/health-library/d00059v1 (last visited May 16, 2019). 22 1 On January 8, 2015, Plaintiff complained to Dr. Kohan that 2 her “low back and leg ha[d] only worsened, even though she had 3 some improvement” after the injections. 4 to “appeal[] the determination that resulted in denial of her 5 lumbar epidural” (id.) and was also “trying to appeal” an 6 apparent reduction in her medication (AR 911). 7 that “[s]he remains a candidate to undergo epidural steroid 8 injection to the lumbar spine area, as all other modes of 9 treatment have failed and . . . complaints and physical exam 10 findings continue to be consistent with her MRI findings and 11 examination.” 12 (AR 910.) He continued He reiterated (Id.) On January 16, 2015, Plaintiff saw Dr. Kohan again. (AR 13 907.) 14 injection.” 15 Fiorinal “occasionally . . . to address her chronic back pain and 16 headaches.” 17 without use of any medication.” 18 injection” of her left hip, and it was “beneficial.” 19 08.) 20 injection” and reiterated that “this has already been submitted 21 for review on two occasions” and “[s]he will be scheduled if she 22 is authorized.” 23 She was “still awaiting . . . the recommended epidural (Id.) (Id.) She was taking Norco and Zanaflex daily and She reported that her pain was a “9/10 (Id.) She “recently underwent (AR 907- The doctor continued to recommend “epidural steroid (AR 908.) On March 18, 2015, Plaintiff saw orthopedic surgeon Lee 24 Silver for her workers’-compensation case. 25 observed “diffuse tenderness” in the neck but “no paravertebral 26 spasm, guarding, or asymmetric range of motion.” 27 back had “diffuse” tenderness and “significant paravertebral 28 spasm, guarding, and asymmetric range of motion.” 23 (AR 975.) He (AR 977.) (Id.) Her Her 1 right shoulder had “impingement.” (AR 979.) Plaintiff reported 2 to Dr. Silver that her hip surgery “did not benefit her.” 3 980.) 4 upper extremity above the shoulder level,” “repetitive squatting, 5 climbing, kneeling, bending and stooping,” lifting “greater than 6 20 pounds,” and “running and jumping.” 7 Silver filed two supplemental updates after this examination (see 8 AR 967-73 (reports dated May and Sept. 2015 including review of 9 materials only)), but the record does not include any treatment (AR He “restricted [her] from repetitive work with the right (AR 980-81.)33 Dr. 10 records from anyone between March 18, 2015, and June 9, 2016.34 11 On June 9, 2016, Plaintiff underwent an MRI of her lumbar 12 spine, which showed “[d]egenerative disc changes at L4-5 and L5- 13 S1 with mild facet arthropathy,” “[m]ild spinal canal narrowing 14 at L4-5 associated with broad-based disc bulge,” “[m]oderate 15 spinal canal narrowing at L5-S1 associated with broad-based disc 16 bulge,” and “annular tears in the posterior intervertebral 17 dis[c]s at these levels.” (AR 1030.) 18 19 20 21 22 33 23 24 25 The ALJ gave “great weight” to Dr. Silver’s opinion, finding that the “functional limitations” he assessed were “consistent with the claimant’s residual functional capacity and . . . supported by the positive objective findings noted during his examination of the claimant.” (AR 35.) 34 26 27 28 Dr. Silver wrote that he reviewed a progress report from Dr. Phillips dated March 9, 2015, but it does not appear in the record. (See AR 972.) Dr. Phillips apparently recommended continued follow-up with “conservative measures” and noted that “approval [was] needed for an arthroscopic left knee medial meniscus surgery.” (Id.) 24 1 c. 2 The ALJ’s findings relating to Plaintiff’s subjective symptom statements 3 The ALJ found that Plaintiff’s “medically determinable 4 impairments could reasonably be expected to provide [her] alleged 5 symptoms,” but her “statements concerning the intensity, 6 persistence and limiting effects of these symptoms are not 7 entirely consistent with the medical evidence and other evidence 8 in the record.” 9 however, by imposing greater limits in her RFC than those 10 (AR 31.) He gave her the benefit of the doubt, assessed by the state-agency medical consultants. 11 (See AR 34.) The ALJ pointed to Plaintiff’s activities of daily living to 12 justify partially discounting her subjective symptom statements 13 and testimony. 14 had “mild restriction” in “activities of daily living” and 15 engaged in “personal grooming activities, prepared simple meals, 16 assisted with laundry, could go places alone, could drive a 17 vehicle and occasionally shopped.” 18 list of activities in his discussion of her subjective symptoms 19 (see AR 30) but also acknowledged her testimony that “she spent 20 approximately eight hours a day laying down,” “rarely drove,” 21 “microwaved meals,” and “experienced difficulty with dressing, 22 bathing, caring for her hair, shaving and using the restroom” (AR 23 29). 24 living were somewhat limited, some of the physical and mental 25 abilities and social interactions required in order to perform 26 these activities are the same as those necessary for obtaining 27 and maintaining employment.” 28 (AR 30.) He noted at step three that Plaintiff (AR 27.) He repeated this He determined that “[a]lthough [her] activities of daily (AR 30.) The ALJ also found that “[t]he treatment records reveal 25 1 [she] received routine, conservative, and non-emergency treatment 2 since the alleged onset date.” 3 which treatments he considered to be conservative or routine and 4 instead provided a summary of her test results and the opinions 5 of several doctors. 6 3. 7 (AR 31.) He did not specify (See generally AR 31-35.) Analysis The ALJ gave three reasons for partially discounting 8 Plaintiff’s subjective pain testimony: inconsistency with the 9 objective medical evidence, inconsistency with activities of 10 daily living, and conservative treatment. 11 31.) 12 with her subjective statements, her treatment was not 13 conservative or routine, and inconsistency with objective medical 14 evidence is an insufficient reason on its own. 15 F.3d at 681. But her activities of daily living were not inconsistent 16 17 (See generally AR 29- See Burch, 400 Accordingly, the ALJ erred. a. Activities of daily living The ALJ found that Plaintiff’s activities of daily living 18 were inconsistent with the alleged degree of her physical 19 limitations. 20 claimant’s subjective symptom testimony when it is inconsistent 21 with her daily activities. 22 where those [daily] activities suggest some difficulty 23 functioning, they may be grounds for discrediting the claimant’s 24 testimony to the extent that they contradict claims of a totally 25 debilitating impairment.” (See AR 30; see also AR 27.) An ALJ may discount a See Molina, 674 F.3d at 1113. “Even Id. 26 The ALJ concluded that because Plaintiff engaged in 27 “personal grooming activities, prepared simple meals, assisted 28 with laundry, could go places alone, could drive a vehicle and 26 1 occasionally shopped” (AR 27), she was only “somewhat limited” 2 (AR 30). 3 with personal grooming (see, e.g., AR 51, 216), needed a friend 4 to help her with laundry and chores (see, e.g., AR 217), and 5 relied on others to help her shop for necessities (see AR 52-53). 6 Her testimony and function report consistently indicated that she 7 struggled to go out at all. 8 she “hardly” drove because of numbness in her hand and pinching 9 in her back and that “most of the time somebody drives me”), 218 But Plaintiff clearly expressed that she had difficulty (See, e.g., AR 53 (testifying that 10 (she went out “once a month” for “hygiene products” and 11 groceries), 219 (friend came over every two weeks to help with 12 chores and keep her company), 220 (she didn’t go out to social 13 events)). 14 testimony and statements on these points; indeed, the ALJ seemed 15 to accept them but did not take into account the limited extent 16 to which Plaintiff could do the activities on her own. 17 Nothing in the record contradicted Plaintiff’s Moreover, the ALJ failed to explain how Plaintiff’s ability 18 to do activities like shopping once a month and microwaving meals 19 would translate to a work environment. 20 871 F.3d 664, 682 (9th Cir. 2017) (as amended) (“[M]any home 21 activities are not easily transferable to what may be the more 22 grueling environment of the workplace, where it might be 23 impossible to periodically rest or take medication.” (citation 24 omitted)); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (“The 25 ALJ must make specific findings relating to the daily activities 26 and their transferability to conclude that [they] warrant an 27 adverse credibility determination.” (citation omitted)). 28 See Trevizo v. Berryhill, The fact that Plaintiff could, with difficulty and breaks 27 1 for rest, partake in some basic activities and go out alone when 2 necessary was not inconsistent with her claims that she could not 3 work. 4 up to nine hours during day and couldn’t work because “repetitive 5 stooping, bending, standing, sitting, [and] writing [was] very 6 painful”).) 7 pressures of a workplace environment will often be consistent 8 with doing more than merely resting in bed all day.” 9 Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (citation omitted) (See, e.g., AR 54 (testifying that she needed to lie down “[I]mpairments that . . . preclude work and all the Garrison v. 10 (holding that “ability to talk on the phone, prepare meals once 11 or twice a day, occasionally clean one’s room, and . . . care for 12 one’s daughter, all while taking frequent hours-long rests, 13 avoiding any heavy lifting, and lying in bed” was “consistent 14 with an inability to function in a workplace environment”). 15 Accordingly, Plaintiff’s daily activities were not a clear 16 and convincing reason to discount her subjective symptom 17 testimony and statements. b. 18 19 Conservative treatment The ALJ also discounted Plaintiff’s statements regarding her 20 physical pain because “[t]he treatment records reveal the 21 claimant received routine, conservative, and non-emergency 22 treatment since the alleged onset date.” 23 treatment is a “sufficient” reason to reject a claimant’s 24 subjective symptom testimony. 25 omitted). 26 was a clear and convincing reason in this case. 27 28 (AR 31.) Conservative Parra, 481 F.3d at 751 (citation But the ALJ failed to show that conservative treatment The ALJ did not specify which treatments in the record were conservative or routine, nor did he suggest any possible 28 1 treatments that Plaintiff could have had but didn’t receive. 2 (See generally AR 31-33.) 3 and convincing. 4 2017 WL 3215353, at *13 (N.D. Cal. July 28, 2017) (reversing in 5 part because ALJ “did not point to what ‘conservative’ treatment 6 Plaintiff was receiving, nor did she explain what additional 7 treatment Plaintiff was supposed to receive”). 8 9 Such lack of specificity is not clear See Moody v. Berryhill, No. 16-CV-03646-JSC, In any event, the ALJ erred by categorizing all of Plaintiff’s treatment as conservative or routine. (AR 31.) 10 Arthroscopic surgery is generally not considered conservative. 11 See, e.g., Hernandez v. Colvin, No. CV 12-3320-SP., 2013 WL 12 1245978, at *8 & n.7 (C.D. Cal. Mar. 25, 2013) (finding that 13 plaintiff’s care “did not remain conservative” because doctor 14 recommended arthroscopic shoulder surgery and plaintiff underwent 15 surgery two days after ALJ decision).35 16 generally not considered conservative, at least not when the 17 plaintiff has received numerous injections on a regular basis. 18 See Christie v. Astrue, No. CV 10-3448-PJW., 2011 WL 4368189, at 19 *4 (C.D. Cal. Sept. 16, 2011) (refusing to characterize 20 injections, epidurals, and narcotic pain medication as Injections are also 21 22 35 23 24 25 26 27 28 In fact, the hip surgeon wrote that he performed the surgery because Plaintiff’s issues were “resistant to conservative treatment.” (AR 764.) And although the record indicates that the August 2014 left-hip surgery provided some relief (see, e.g., AR 825 (Plaintiff reporting “50% pain reduction from her pre-surgical state”)), it also shows that any such relief was fleeting (see, e.g., AR 824 (cortisone injection in left hip in Oct. 2014), 907-08 (treating pain specialist noting in Jan. 2015 that Plaintiff “recently underwent [left-hip] injection”), 956 (consulting orthopedist finding “[r]ange of motion of the left hip is 50% of expected with a fair amount of pain” in Aug. 2016)). 29 1 “conservative”). Not only did Plaintiff receive hip and back 2 injections (see, e.g., AR 824, 910, 913), but treating pain 3 specialist Kohan also persistently sought approval for her to 4 receive epidural injections (see, e.g., AR 908, 910-11, 913) and 5 stronger and increased pain medications (see AR 910-11), arguing 6 that “all other modes of treatment have failed” (AR 911; see also 7 AR 924 (listing medications that had not been effective)). 8 Kohan’s ongoing treatment, including injections, narcotic 9 medications, and many requests for epidural authorizations, was Dr. 10 not conservative or routine. 11 11-865 JC., 2012 WL 254030, at *4 (C.D. Cal. Jan. 27, 2012) 12 (treatment not conservative when claimant was treated “on a 13 continuing basis” with steroid and anesthetic “trigger point 14 injections,” occasional epidural injections, and narcotic 15 medication and doctor recommended surgery). 16 See Samaniego v. Astrue, No. EDCV Similarly, treating orthopedist Phillips repeatedly noted 17 that Plaintiff’s condition was “unchanged” despite physical 18 therapy and pain medications. 19 Hernandez, 2013 WL 1245978, at *7 (finding that when plaintiff 20 “continued to experience pain” with medication, “pain was [not] 21 controlled,” and so “help[]” from medication “was not a clear and 22 convincing reason to discount plaintiff’s credibility”). 23 twice remarked that Plaintiff had sought emergency-room care (see 24 AR 710, 893), undermining the ALJ’s statement that all of 25 Plaintiff’s treatment had been “non-emergency” (AR 31).36 26 Furthermore, several treating and examining doctors (See, e.g., AR 903); see also He also 27 28 36 The AR does not include records from these emergency-room visits, however. 30 1 suggested that further surgeries were likely. 2 (treating orthopedist noting in Dec. 2014 that left-knee surgery 3 was “likely” after her hip had healed sufficiently), 958 4 (consulting orthopedist remarking in 2016 that “claimant is 5 scheduled to have multiple surgeries”).) 6 correct that no additional surgeries are documented in the record 7 (see J. Stip. at 27), the record suggests that certain aggressive 8 treatments had been delayed over the years because of insurance 9 issues, allowances for healing time, and concerns about 10 Plaintiff’s age (see, e.g., AR 54, 700, 707, 799, 918). 11 495 F.3d at 638 (noting that failure to seek treatment may be 12 basis for adverse credibility finding unless good reason exists 13 for not pursuing it); Hernandez, 2013 WL 1245978, at *8 (waiting 14 for insurance authorization is good reason). 15 16 17 18 (See, e.g., AR 903 Although Defendant is Cf. Orn, Thus, the ALJ erred by improperly assessing Plaintiff’s treatments as conservative and routine. c. Inconsistency with medical evidence The ALJ recounted the findings and opinions of several 19 doctors at length (see generally AR 30-35), but even if he was 20 justified in finding that the objective medical evidence was not 21 consistent with Plaintiff’s subjective complaints, that alone is 22 not a sufficient reason to discount them. 23 680 (“[A]n ALJ may not reject a claimant’s subjective complaints 24 based solely on a lack of medical evidence to fully corroborate 25 the alleged severity of pain.”); Gama v. Colvin, 611 F. App’x 26 445, 446 (9th Cir. 2015) (when one reason ALJ gave for 27 discounting plaintiff’s credibility was erroneous and “only 28 remaining reason . . . was a lack of objective medical evidence,” 31 See Burch, 400 F.3d at 1 2 “error was not harmless”). Because two of the three reasons the ALJ gave for 3 discounting Plaintiff’s subjective pain statements and testimony 4 were not supported by substantial evidence and the other was 5 insufficient by itself, remand is warranted. 6 B. Remand for Further Proceedings Is Appropriate 7 When an ALJ errs, as here, the Court “ordinarily must remand 8 . . . for further proceedings.” Leon v. Berryhill, 880 F.3d 9 1041, 1045 (9th Cir. 2017) (as amended Jan. 25, 2018); see also 10 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as 11 amended). 12 under the “credit-as-true” rule. 13 (citation omitted). 14 as a rare and prophylactic exception to the ordinary remand 15 rule[.]” 16 proceedings turns upon the likely utility of such proceedings,” 17 Harman, 211 F.3d at 1179, and when an “ALJ makes a legal error, 18 but the record is uncertain and ambiguous, the proper approach is 19 to remand the case to the agency,” Leon, 880 F.3d at 1045 (citing 20 Treichler, 775 F.3d at 1105). 21 The Court has discretion to do so or to award benefits Id. Leon, 880 F.3d at 1045 “[A] direct award of benefits was intended The “decision of whether to remand for further Here, further administrative proceedings would serve the 22 useful purpose of allowing the ALJ to give proper consideration 23 to Plaintiff’s subjective symptom testimony. 24 Colvin, No. CV 15-01927-RAO, 2016 WL 3902307, at *7 (C.D. Cal. 25 July 18, 2016) (remand “rather than an award of benefits” 26 appropriate when only valid reason ALJ gave for discounting 27 plaintiff’s subjective pain testimony was “lack of supporting 28 objective evidence”). See Arredondo v. If the ALJ chooses to discount Plaintiff’s 32 1 subjective symptoms on remand, he can then provide an adequate 2 discussion of the reasons why. 3 732, 733 (9th Cir. 2016). 4 Plaintiff could work with limitations, as noted by the ALJ (see 5 generally AR 30-35; see also J. Stip. at 27 (Defendant arguing 6 same)), the Court has serious doubt as to whether Plaintiff was 7 disabled during any or all of the relevant period. 8 reason, too, remand is appropriate. 9 1021 (recognizing flexibility to remand for further proceedings See Payan v. Colvin, 672 F. App’x Because many doctors assessed that For this See Garrison, 759 F.3d at 10 when “record as a whole creates serious doubt that [plaintiff] 11 is, in fact, disabled”). 12 VI. 13 CONCLUSION Consistent with the foregoing and under sentence four of 42 14 U.S.C. § 405(g),37 IT IS ORDERED that judgment be entered 15 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 16 request for remand, and REMANDING this action for further 17 proceedings consistent with this memorandum decision. 18 19 DATED: May 29, 2019 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 37 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 33
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