Janet Salazar v. Commissioner of Social Security Administration, No. 5:2019cv01466 - Document 18 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Janet Salazar v. Commissioner of Social Security Administration Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JANET S., ) ) Plaintiff, ) ) v. ) ) COMMISSIONER OF SOCIAL SECURITY ) ADMINISTRATION, ) ) Defendant. ) ____________________________________) NO. ED CV 19-1466-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on August 7, 2019, seeking review of 26 the Commissioner’s denial of benefits. The parties consented to 27 proceed before a United States Magistrate Judge on August 22, 2019. 28 Plaintiff filed a motion for summary judgment on December 6, 2019. Dockets.Justia.com 1 Defendant filed a motion for summary judgment on February 5, 2020. 2 The Court has taken the motions under submission without oral 3 argument. See L.R. 7-15; “Order,” filed August 8, 2019. 4 5 BACKGROUND 6 7 Plaintiff, a former loan analyst/processor, asserts disability 8 since May 22, 2015 (when she was 63 years old), based on alleged 9 physical impairments (Administrative Record (“A.R.”) 28-34, 41-42, 45, 10 167, 179). An Administrative Law Judge (“ALJ”) reviewed the record 11 and heard testimony from Plaintiff and a vocational expert (A.R. 13- 12 20, 26-44). 13 hands for more than 20 minutes before experiencing tingling, numbness 14 and pain (A.R. 34-35, 39).1 Plaintiff testified, inter alia, that she cannot use her 15 16 The ALJ found that Plaintiff has “severe” degenerative disc 17 disease of the cervical and lumbar spine, osteoarthritis of the knees, 18 peripheral neuropathy and obesity (A.R. 15). 19 that Plaintiff retains a residual functional capacity for light work, 20 limited to: (1) occasionally climbing ladders, ropes and scaffolding; 21 (2) frequently climbing ramps and stairs and balancing; 22 (3) occasionally stooping, kneeling, crouching and crawling; 23 (4) frequently using her hands and bilateral upper extremities for However, the ALJ found 24 25 26 27 28 1 The vocational expert testified that: (1) a person limited to using her hands for 20 minutes at a time before resting them for up to 30 minutes, per Plaintiff’s testimony, would be limited to less than occasional use of the hands; and (2) a person limited to occasional use of the hands would not be able to perform Plaintiff’s past relevant work (A.R. 41-43). 2 1 handling, fingering and feeling; and (5) less than occasionally being 2 exposed to extreme cold and hazards (A.R. 16-20 (rejecting Plaintiff’s 3 allegations of greater limitations)) (emphasis added)). 4 deemed Plaintiff capable of performing her past relevant work and, on 5 that basis, denied disability benefits through December 31, 2017 (the 6 date last insured) (A.R. 13, 20 (adopting vocational expert testimony 7 at A.R. 41-42)). The ALJ 8 9 The Appeals Council denied review (A.R. 1-3). 10 11 STANDARD OF REVIEW 12 13 Under 42 U.S.C. section 405(g), this Court reviews the 14 Administration’s decision to determine if: (1) the Administration’s 15 findings are supported by substantial evidence; and (2) the 16 Administration used correct legal standards. 17 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 18 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 19 682 F.3d 1157, 1161 (9th Cir. 2012). 20 relevant evidence as a reasonable mind might accept as adequate to 21 support a conclusion.” 22 (1971) (citation and quotations omitted); see also Widmark v. 23 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 24 25 If the evidence can support either outcome, the court may 26 not substitute its judgment for that of the ALJ. 27 Commissioner’s decision cannot be affirmed simply by 28 isolating a specific quantum of supporting evidence. 3 But the 1 Rather, a court must consider the record as a whole, 2 weighing both evidence that supports and evidence that 3 detracts from the [administrative] conclusion. 4 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 6 quotations omitted). 7 8 DISCUSSION 9 10 After consideration of the record as a whole, the Court reverses 11 the Administration’s decision in part and remands the matter for 12 further administrative proceedings. 13 Administration materially erred in evaluating the evidence of record. As discussed below, the 14 15 I. 16 Summary of Plaintiff’s Subjective Complaints and the Medical Record. 17 18 Plaintiff testified that she stopped working because she was in 19 too much pain (A.R. 32). Plaintiff said she could not work because 20 her job duties required her to “be on the computer and type” and she 21 cannot use her hands for more than 20 minutes before experiencing 22 tingling, numbness and pain in her fingers due to carpal tunnel 23 syndrome/neuropathy for which surgery had been recommended (A.R. 34- 24 35, 39). 25 her neck and associated headaches (A.R. 35, 38). 26 experiences neuropathy in her hands and her feet, which requires her 27 to shift positions to help with numbness, tingling and pain (A.R. 38). 28 /// Plaintiff also said she could not work because of pain in 4 Plaintiff said she 1 Plaintiff testified that she can drive, make breakfast, do light 2 cleaning (but she employs a housekeeper), do laundry, cook “nothing 3 extensive,” and attend church once a month (A.R. 30, 36-37). 4 Plaintiff said she can lift 10 pounds, sit for 30 minutes at a time, 5 stand for 30 minutes at a time, and walk for not more than 30 minutes 6 at a time (A.R. 37).2 7 Treatment records reflect consistent complaints of pain, numbness 8 9 and tingling in Plaintiff’s hands. In early May, 2015, just before 10 Plaintiff stopped working, Plaintiff complained of numbness in her 11 hands and feet, as well as low back pain (A.R. 271-73). 12 assessed with, inter alia, cervical radiculopathy, lumbar spondylosis, 13 lumbar radiculopathy and cervical spine stenosis (A.R. 272). 14 received a prescription of Tramadol (A.R. 272). 15 called her doctor on May 26, 2015, requesting an “off work order” for 16 one or two weeks due to numbness and tingling in her legs (A.R. 269- 17 70). She was She Plaintiff reportedly 18 19 Plaintiff presented for evaluation of her back and neck pain on 20 May 29, 2015, complaining of chronic neck and back pain with worsening 21 symptoms after prolonged sitting at work, including pain in both legs 22 23 24 25 26 27 28 2 In an Exertion Questionnaire dated November 25, 2015, Plaintiff reported that: (1) she is unable to sit for more than 20 minutes at a time due to tingling, numbness, and pain in her feet; (2) she cannot write for more than a few minutes at a time due to tingling, numbness and pain; and (3) she can walk to the mailbox and sometimes uses a cane when her legs hurt (A.R. 18789). In an undated appeal form, Plaintiff reported that she was having greater problems with her right hand, limiting her capacity to use it for any prolonged or repetitive activity (A.R. 193). 5 1 and in the upper arms, tingling and numbness in the right hand, and 2 numbness in the left leg (A.R. 266). 3 reportedly had shown active right C7 cervical radiculopathy “with 4 signs of ongoing axon loss” (A.R. 266). 5 reportedly was obese with a normal gait, tenderness in the lumbar and 6 cervical spine, lower extremity strength of 4/5 and 5/5, upper 7 extremity strength of 4/5, decreased sensation in the right arm and 8 forearm and in both hands, and slightly decreased sensation in the 9 left lateral leg and foot (A.R. 267-68). An EMG study from 2011 On examination, she She was assessed with right 10 C7 radiculopathy and mild degenerative joint disease in the lumbar 11 spine (A.R. 268). 12 (A.R. 268). She was prescribed physical therapy and Tramadol 13 14 In June of 2015, Plaintiff presented for an extension of her “off 15 work order” due to ongoing low back pain not responding to physical 16 therapy (A.R. 261). 17 complaints as at the May 29, 2015 evaluation, with the same reported 18 findings on examination (A.R. 258-60). Later in June, Plaintiff reported the same 19 20 In July of 2015, Plaintiff presented to the emergency room for 21 right side flank pain, which reportedly differed from her chronic back 22 pain (A.R. 242). 23 back pain and tenderness (A.R. 245). 24 pain and prescribed Norco (A.R. 247). On examination, she had musculoskeletal and lumbar She was diagnosed with flank 25 26 Later in July of 2015, Plaintiff followed up with her regular 27 provider, requesting a continued “off work order” because her work 28 required her to sit for a long time, which causes her low back pain 6 1 and leg numbness (A.R. 241). Plaintiff reportedly was taking Norco 2 and Tramadol (A.R. 241). 3 tenderness (A.R. 242). 4 and was prescribed more Norco (A.R. 242). On examination, she had paraspinal She was diagnosed with lumbosacral radiculitis 5 6 In September of 2015, Plaintiff complained of low back pain with 7 sciatica, neck pain, tingling in her fingers and toes with swelling, 8 and right knee pain (A.R. 237-39). 9 “off work order” (A.R. 238). Plaintiff requested a continued Plaintiff reportedly was attending 10 physical therapy (A.R. 237-38; see also A.R. 252-54, 256-58, 262-65). 11 Plaintiff reportedly was taking Norco and Tramadol (A.R. 238, 240). 12 Plaintiff reportedly did not want to try trigger point injections 13 because she was afraid of possible pain therefrom (A.R. 240). 14 examination, Plaintiff had musculoskeletal and paraspinal tenderness 15 (A.R. 238). 16 radiculopathy, lumbar radiculopathy, osteoarthritis of the right knee, 17 lumbar myofascial pain syndrome, and peripheral neuropathy/paresthesia 18 (A.R. 238, 240). On She was assessed with, inter alia, cervical 19 20 In November of 2015, Plaintiff reported neck pain radiating to 21 her upper extremities, low back pain, bilateral knee pain and 22 tenderness (A.R. 343). 23 tenderness and tenderness in the paracervical muscles, mid and low 24 back, and knees (A.R. 343). 25 device but was advised to do so because of her observed difficulty in 26 changing from a sitting position to a standing position (A.R. 343). 27 Plaintiff’s Tramadol was continued (A.R. 344). 28 /// On examination, she had musculoskeletal She was not then using an assistive 7 1 On January 21, 2016, Plaintiff’s workers’ compensation claim was 2 denied for lack of medical evidence to support an industrially-related 3 injury (A.R. 364-65). 4 Dr. Peter M. Newton subsequently reviewed the medical record, 5 evaluated Plaintiff and prepared a report dated June 6, 2016 (A.R. 6 464-91). 7 disability for six months and then was laid off from work (A.R. 465). 8 Plaintiff reportedly complained of headaches and pain in her neck 9 radiating to the left arm, as well as pain in the low back, knees, 10 hands and feet with numbness and tingling, which she attributed to 11 sitting for prolonged periods (A.R. 465-67). 12 numbness from repeated and prolonged typing and also reported that her 13 feet would go numb after 20 minutes of sitting (A.R. 466). 14 then was scheduled to have surgery on her left knee for a torn 15 meniscus (A.R. 466). 16 and Tramadol for her pain (A.R. 470). Agreed Medical Examiner and orthopedic surgeon Plaintiff reportedly had been given temporary total Plaintiff reported Plaintiff Plaintiff reportedly then was then taking Norco 17 18 On examination, Plaintiff had reduced range of motion in the 19 cervical, thoracic and lumbar spine with pain, tenderness in her 20 paraspinal and trapezius muscles, neck pain with movement of the 21 shoulders, pain in the left knee when walking on toes and heels and in 22 range of motion testing, and positive Apley’s test on the left side 23 (A.R. 472-82). 24 left knee, and mild diffuse degenerative disc disease of the cervical 25 spine and lumbosacral spine (A.R. 487). 26 (1) chronic pain (rule out herniated disc) causing intermittent upper 27 extremity radiculopathy; (2) left wrist pain (rule out soft tissue 28 strain versus peripheral neuropathy); (3) chronic low back pain (rule X-rays showed mild degenerative joint disease of the 8 Dr. Newton diagnosed: 1 out herniated disc) causing lower extremity radiculopathy; and 2 (4) left knee pain with moderate degenerative joint disease (A.R. 3 487). 4 electrodiagnostic testing (A.R. 488). 5 opined that Plaintiff should be limited to lifting 5 pounds, no 6 repetitive or prolonged overhead work, no repetitive bending, 7 stooping, twisting, squatting or standing, and no repetitive forceful 8 gripping or grasping (A.R. 489-90). 9 would require 10 minutes of rest for every 50 minutes of typing or 10 Dr. Newton referred Plaintiff for MRI studies and For “work status,” Dr. Newton Dr. Newton stated that Plaintiff writing (A.R. 490). 11 12 Subsequent MRI studies showed straightening of the cervical 13 lordosis, multilevel disc bulges from C4-C5 through C6-C7 with 14 bilateral neuroforaminal narrowing, multiple ovoid lesions at L2, L3 15 and S1 which were recommended for further evaluation, and disc bulges 16 at L1-L2, L2-L3 and L4-L5 with neuroforaminal narrowing (A.R. 493-96). 17 EMG/nerve conduction studies showed bilateral polongation of the 18 median motor nerve distal latencies and moderate slowing of the left 19 median sensory velocity across the wrist, absent right median sensory 20 nerve action potential, no abnormalities on EMG testing, and normal 21 electrodiagnostic studies of the lower limbs (A.R. 498-500). 22 ultrasounds showed “bilateral median nerve moderate fusiform 23 enlargement and thickening (right greater than left)” (A.R. 502). Wrist 24 25 Dr. Newton reevaluated Plaintiff and prepared a second report 26 dated September 26, 2016 (A.R. 369-95). Plaintiff had undergone left 27 knee arthroscopy as scheduled in June (A.R. 370; see also A.R. 412- 28 18). Plaintiff reportedly was taking Tramadol (A.R. 370). 9 1 Examination results were similar to those from Dr. Newton’s first 2 examination. 3 diagnosed: (1) chronic neck pain with 1-3 mm disc protrusion; 4 (2) right and left median nerve neuropathy; (3) chronic low back 5 strain with 2-3 mm disc protrusion; and (4) status post left knee 6 arthroscopy with underlying moderate degenerative joint disease (A.R. 7 381). 8 stationary (A.R. 382). 9 a candidate for cortisone injections for her wrists and that, if she 10 continued to have significant symptoms, she would be a candidate for 11 bilateral carpal tunnel release surgery (A.R. 386). 12 assessed the same “work status” as before, and opined that Plaintiff 13 could work with restrictions to performing the following activities 14 for only two to four hours each in an eight hour work day: 15 bending, twisting, keyboarding and bilateral hand grasping (A.R. 386). 16 Dr. Newton also opined that Plaintiff could not lift or carry more 17 than five pounds for more than four hours per day (A.R. 386). 18 March 1, 2017, Plaintiff was awarded permanent disability workers’ 19 compensation benefits (A.R. 397-406). Compare A.R. 472-82 with A.R. 371-80. Dr. Newton Dr. Newton opined that Plaintiff’s condition was permanent and Dr. Newton also opined that Plaintiff would be Dr. Newton forward On 20 21 Plaintiff received treatment from Dr. Rubina Shaheen during 22 January, 2017 - March, 2018 (A.R. 515-41). In April of 2017, 23 Plaintiff complained of left arm and shoulder pain radiating down to 24 her fingers and was assessed with left shoulder impingement and 25 neuralgia (A.R. 534-35). 26 June of 2017, Plaintiff complained of chronic lower right sided pain 27 radiating to the right leg for which she was taking Tramadol (A.R. 28 528). Dr. Shaheen prescribed Soma (A.R. 535). Plaintiff was diagnosed with sciatica and given a Lidoderm 10 In 1 patch (A.R. 529). 2 3 Dr. Shaheen completed a “Medical Assessment of Ability to do 4 Work-Related Activities,” dated April 5, 2018 (A.R. 460). Dr. Shaheen 5 opined that Plaintiff could: (1) lift and carry 10 pounds; 6 (2) occasionally use her upper extremities; (3) sit, stand and walk 7 for 30 minutes at one time; and (4) sit for 30 minutes total and stand 8 or walk for 30 minutes total in an eight hour workday (A.R. 460). 9 Shaheen reported that Plaintiff has “cervical neck stenosis with Dr. 10 compression and neuropathy with pain,” as supported by a cervical MRI 11 and “neurological assessment in documentation” (A.R. 460). 12 13 Non-examining state agency physicians reviewed the record in 14 December of 2015 and May of 2016 (before Dr. Newton’s comprehensive 15 evaluations) and found Plaintiff capable of light work with no 16 manipulative limitations (A.R. 45-63). 17 did not review any other doctors’ opinions. The state agency physicians See id. 18 19 II. The ALJ Erred in Discounting Plaintiff’s Testimony and Statements 20 Regarding the Severity of Plaintiff’s Symptoms Without Stating 21 Legally Sufficient Reasons for Doing So. 22 23 Where, as here, an ALJ finds that a claimant’s medically 24 determinable impairments reasonably could be expected to cause some 25 degree of the alleged symptoms of which the claimant subjectively 26 complains, any discounting of the claimant’s complaints must be 27 supported by “specific, cogent” findings. 28 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 11 See Berry v. Astrue, 622 1 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th 2 Cir. 1996) (indicating that ALJ must state “specific, clear and 3 convincing” reasons to reject a claimant’s testimony where there is no 4 evidence of malingering).3 5 suffice. 6 (the ALJ’s credibility findings “must be sufficiently specific to 7 allow a reviewing court to conclude the ALJ rejected the claimant’s 8 testimony on permissible grounds and did not arbitrarily discredit the 9 claimant’s testimony”) (internal citations and quotations omitted); Generalized, conclusory findings do not See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) 10 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ 11 must “specifically identify the testimony [the ALJ] finds not to be 12 credible and must explain what evidence undermines the testimony”); 13 Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically 14 which symptom testimony is not credible and what facts in the record 15 lead to that conclusion.”); see also Social Security Ruling (“SSR”) 16 96-7p (explaining how to assess a claimant’s credibility), superseded, 17 /// 18 /// 19 /// 20 21 22 23 24 25 26 27 28 3 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are insufficient under either standard, so the distinction between the two standards (if any) is academic. 12 1 SSR 16-3p (eff. March 28, 2016).4 2 3 In the present case, the ALJ acknowledged that “there is evidence 4 of some significant degenerative pathology in the cervical and lumbar 5 spines which might be expected to result in some chronic pain and 6 stiffness (though not necessarily in radiculopathy, based on the MRIs 7 and EMG studies)” (A.R. 18). 8 conduction studies “suggested some medial nerve issues” and wrist 9 ultrasounds “suggested ‘thickening’ of the median nerves bilaterally, The ALJ also acknowledged that nerve 10 which might account for . . . reports of recurrent hand sensation 11 problems” (A.R. 18). 12 testimony and statements regarding the severity of her limitations 13 (A.R. 18-19). 14 (1) Plaintiff’s allegations were “not entirely support[ed]” by the 15 evidence of record because she did not “consistently exhibit” 16 sensation loss in her extremities on examination or “clear evidence of 17 serious dexterity or grip loss on exam” (A.R. 18); (2) with the 18 exception of knee surgery, Plaintiff “required relatively minimal 19 treatment for her symptoms” (A.R. 18); and (3) Plaintiff was able to 20 perform “a fairly good range of normal daily tasks (many household 21 chores were taken care of by a housekeeper), including caring for her However, the ALJ discounted Plaintiff’s The ALJ stated three reasons for doing so: 22 23 24 25 26 27 28 4 Social Security Rulings (“SSRs”) are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). The appropriate analysis under the superseding SSR is substantially the same as the analysis under the superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16-3p “implemented a change in diction rather than substance”) (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16–3p “makes clear what our precedent already required”). 13 1 pet, engaging in self-care, leaving her home when necessary, engaging 2 in non-strenuous leisure activity, etc.” (A.R. 18-19). 3 4 With regard to reason (2), a limited course of treatment 5 sometimes can justify the rejection of a claimant’s testimony, at 6 least where the testimony concerns physical problems. 7 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack of 8 consistent treatment, such as where there was a three to four month 9 gap in treatment, properly considered in discrediting claimant’s back 10 pain testimony); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) 11 (in assessing the credibility of a claimant’s pain testimony, the 12 Administration properly may consider the claimant’s failure to request 13 treatment and failure to follow treatment advice) (citing Bunnell v. 14 Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc)); Matthews v. 15 Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993) (permissible credibility 16 factors in assessing pain testimony include limited treatment and 17 minimal use of medications); see also Johnson v. Shalala, 60 F.3d 18 1428, 1434 (9th Cir. 1995) (absence of treatment for back pain during 19 half of the alleged disability period, and evidence of only 20 “conservative treatment” when the claimant finally sought treatment, 21 sufficient to discount claimant’s testimony). See, e.g., 22 23 In the present case, however, it is doubtful Plaintiff’s 24 treatment with narcotic pain medications (Norco and Tramadol) may 25 properly be characterized as “minimal” or “conservative” within the 26 meaning of Ninth Circuit jurisprudence. 27 2015 WL 9490094, at *7 (E.D. Cal. Dec. 30, 2015) (“[p]rior cases in 28 the Ninth Circuit have found that treatment was conservative when the 14 See, e.g., Shepard v. Colvin, 1 claimant’s pain was adequately treated with over-the-counter 2 medication and other minimal treatment,” however where record 3 reflected heavy reliance on Tramadol and Oxycodone and other 4 prescriptions for pain, record did not support finding that treatment 5 was “conservative”) (internal citations omitted; citing for comparison 6 Lapeirre-Gutt v. Astrue, 382 Fed. App’x. 662, 664 (9th Cir. 2010) 7 (doubting whether “copious amounts of narcotic pain medication” as 8 well as nerve blocks and trigger point injections was “conservative” 9 treatment)); Childress v. Colvin, 2014 WL 4629593, at *12 (N.D. Cal. 10 Sept. 16, 2014) (“[i]t is not obvious whether the consistent use of 11 [Norco] (for several years) is ‘conservative’ or in conflict with 12 Plaintiff’s pain testimony”); Aguilar v. Colvin, 2014 WL 3557308, at 13 *8 (C.D. Cal. July 18, 2014) (“It would be difficult to fault 14 Plaintiff for overly conservative treatment when he has been 15 prescribed strong narcotic pain medications”); Christie v. Astrue, 16 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (refusing to 17 characterize as “conservative” treatment that included narcotic pain 18 medication and epidural injections); Eicholtz v. Astrue, 2008 WL 19 4642976, at *3 (C.D. Cal. Oct. 20, 2008) (court acknowledged the 20 precept that “[a]n ALJ may discount a claimant’s testimony based on 21 conservative treatment,” but appeared to deem this precept 22 inapplicable because the claimant took Tramadol). 23 Plaintiff regularly sought treatment throughout the alleged disability 24 period, underwent physical therapy and knee surgery and consistently 25 /// 26 /// 27 /// 28 /// 15 As detailed above, 1 was prescribed narcotic pain medication.5 2 assertion, Plaintiff’s treatment has not been “minimal” within the 3 meaning of Ninth Circuit jurisprudence. Contrary to the ALJ’s 4 5 With regard to reason (3), inconsistencies between admitted daily 6 activities and claimed incapacity properly may impugn the accuracy of 7 a claimant’s testimony and statements under certain circumstances. 8 See, e.g., Thune v. Astrue, 499 Fed. App’x 701, 703 (9th Cir. 2012) 9 (ALJ properly discredited pain allegations as contradicting claimant’s 10 testimony that she gardened, cleaned, cooked, and ran errands); 11 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) 12 (claimant’s “normal activities of daily living, including cooking, 13 house cleaning, doing laundry, and helping her husband in managing 14 finances” provided sufficient explanation for discounting claimant’s 15 testimony). 16 discussing when a claimant’s admitted activities may and may not 17 justify a discounting of the claimant’s testimony and statements. 18 Compare Stubbs-Danielson v. Astrue with Vertigan v. Halter, 260 F.3d 19 1044, 1049-50 (9th Cir. 2001) (“the mere fact that a plaintiff has 20 carried on certain daily activities, such as grocery shopping, driving 21 a car, or limited walking for exercise, does not in any way detract Yet, it is difficult to reconcile Ninth Circuit opinions 22 23 24 25 26 27 28 5 Defendant appears to suggest as a reason to discount Plaintiff’s subjective complaints the alleged fact that Plaintiff testified surgery had been recommended for her wrist/hand pain even though the record assertedly fails to reflect such a recommendation. The Court may not rely on this reasoning because the ALJ did not specify this reasoning in discounting Plaintiff’s subjective complaints. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (the court “cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision”). 16 1 from her credibility as to her overall disability”); see also Diedrich 2 v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017) (daily activities 3 of cooking, cleaning, vacuuming, washing dishes, shopping and cleaning 4 a cat’s litter box insufficient to discount the claimant’s subjective 5 complaints). 6 7 In the present case, Defendant concedes that Plaintiff’s limited 8 daily activities “do not necessarily contradict her subjective 9 complaints” (Defendant’s Motion, p. 9). The Court agrees. 10 Plaintiff’s daily activities cannot properly undermine her subjective 11 complaints. 12 2017). See Revels v. Berryhill, 874 F.3d 648, 667-68 (9th Cir. 13 14 With regard to reason (1), inconsistencies between a claimant’s 15 subjective complaints and the objective medical evidence can be a 16 factor in discounting a claimant’s subjective complaints, but cannot 17 “form the sole basis.” 18 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 19 above, the ALJ’s other two stated reasons for discounting Plaintiff’s 20 subjective complaints are legally infirm. 21 reliance on any alleged inconsistency between Plaintiff’s subjective 22 complaints and the objective medical evidence cannot properly support 23 the ALJ’s decision. See Burch v. Barnhart, 400 F.3d at 681; As discussed Therefore, the ALJ’s 24 25 Even if the ALJ could rely solely on an alleged inconsistency 26 between Plaintiff’s subjective complaints and the objective medical 27 evidence, the ALJ’s reasoning would still be insufficient. 28 observed that, although Plaintiff complained of extremity numbness, 17 The ALJ 1 tingling and pain, she had largely normal findings of strength and 2 sensation on examination (A.R. 17-19). 3 that the results of Plaintiff’s nerve conduction study and wrist 4 ultrasound “might account for” Plaintiff’s reported hand problems 5 (A.R. 18). 6 and cervical radiculopathy, as well as peripheral neuropathy (which 7 the ALJ found to be a severe impairment) (A.R. 15, 238, 240, 242, 268, 8 382, 487). 9 examination are not necessarily inconsistent with Plaintiff’s The ALJ acknowledged, however, Further, the medical record includes findings of lumbar The cited normal strength and sensory findings on 10 testimony regarding the problems with her hands she experiences after 11 20 minutes of repetitive use. 12 complaints are not necessarily inconsistent with the objective medical 13 evidence. Thus, Plaintiff’s relevant subjective 14 15 The Court is unable to conclude that the ALJ’s failure to state 16 legally sufficient reasons for discounting Plaintiff’s subjective 17 complaints was harmless. 18 inconsequential to the ultimate non-disability determination.” 19 v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and 20 quotations omitted). 21 someone were limited to occasional use of her hands, she could not 22 perform Plaintiff’s past relevant work (A.R. 43). 23 expert did not testify whether there are jobs performable by a person 24 as limited as Plaintiff claims to be (A.R. 41-43). 25 /// 26 /// 27 /// 28 /// “[A]n ALJ’s error is harmless where it is Molina Here, the vocational expert testified that, if 18 The vocational 1 III. Remand for Further Administrative Proceedings is Appropriate. 2 3 Remand is appropriate because the circumstances of this case 4 suggest that further development of the record and further 5 administrative review could remedy the ALJ’s errors. 6 Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see also INS v. Ventura, 7 537 U.S. 12, 16 (2002) (upon reversal of an administrative 8 determination, the proper course is remand for additional agency 9 investigation or explanation, except in rare circumstances); Leon v. See McLeod v. 10 Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017) (reversal with a 11 directive for the immediate calculation of benefits is a “rare and 12 prophylactic exception to the well-established ordinary remand rule”); 13 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the 14 district court concludes that further administrative proceedings would 15 serve no useful purpose, it may not remand with a direction to provide 16 benefits”); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th 17 Cir. 2014) (remand for further administrative proceedings is the 18 proper remedy “in all but the rarest cases”); Harman v. Apfel, 211 19 F.3d 1172, 1180-81 (9th Cir.), cert. denied, 531 U.S. 1038 (2000) 20 (remand for further proceedings rather than for the immediate payment 21 of benefits is appropriate where there are “sufficient unanswered 22 questions in the record”); Connett v. Barnhart, 340 F.3d 871, 876 (9th 23 Cir. 2003) (“Connett”) (remand is an option where the ALJ fails to 24 state sufficient reasons for rejecting a claimant’s excess symptom 25 testimony); but see Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007) 26 (citing Connett for the proposition that “[w]hen an ALJ’s reasons for 27 rejecting the claimant’s testimony are legally insufficient and it is 28 clear from the record that the ALJ would be required to determine the 19 1 claimant disabled if he had credited the claimant’s testimony, we 2 remand for a calculation of benefits”) (quotations omitted); see also 3 Brown-Hunter v. Colvin, 806 F.3d 487, 495-96 (9th Cir. 2015) 4 (discussing the narrow circumstances in which a court will order a 5 benefits calculation rather than further proceedings); Ghanim v. 6 Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014) (remanding for further 7 proceedings where the ALJ failed to state sufficient reasons for 8 deeming a claimant’s testimony not credible); Vasquez v. Astrue, 572 9 F.3d 586, 600-01 (9th Cir. 2009) (a court need not “credit as true” 10 improperly rejected claimant testimony where there are outstanding 11 issues that must be resolved before a proper disability determination 12 can be made). 13 present record. 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// There remain significant unanswered questions in the 20 1 CONCLUSION 2 3 For all of the foregoing reasons,6 Plaintiff’s and Defendant’s 4 motions for summary judgment are denied and this matter is remanded 5 for further administrative action consistent with this Opinion. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: March 9, 2020. 10 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 21
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