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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 M.B., Case No. 2:19-cv-03256-SHK 12 Plaintiff, 13 v. OPINION AND ORDER 14 ANDREW M. SAUL, Commissioner of 15 Social Security, 16 Defendant. 17 18 Plaintiff M.B.1 (“Plaintiff”) seeks judicial review of the final decision of the 19 Commissioner of the Social Security Administration (“Commissioner,” 20 “Agency,” or “Defendant”) denying his application for supplemental security 21 income (“SSI”), under Title XVI of the Social Security Act (the “Act”). This 22 Court has jurisdiction under

(c)(3), and, pursuant to 28 U.S.C. 23 § 636(c), the parties have consented to the jurisdiction of the undersigned United 24 States Magistrate Judge. For the reasons stated below, the Commissioner’s 25 decision is REVERSED and this action is REMANDED for further proceedings 26 consistent with this Order. 27 1 I. BACKGROUND 2 Plaintiff filed an application for SSI on January 31, 2015, alleging disability 3 beginning on December 7, 2004.2 Tr. 265-76.3 Following a denial of benefits, 4 Plaintiff requested a hearing before an administrative law judge (“ALJ”) and, on 5 March 28, 2018, ALJ Selena D. Bowman-Davis determined that Plaintiff was not 6 disabled. Tr. 27-39. Plaintiff sought review of the ALJ’s decision with the Appeals 7 Council, however, review was denied on March 7, 2019. Tr. 7-12. This appeal 8 followed. 9 II. STANDARD OF REVIEW 10 The reviewing court shall affirm the Commissioner’s decision if the decision 11 is based on correct legal standards and the legal findings are supported by 12 substantial evidence in the record.

(g); Batson v. Comm’r Soc. 13 Sec. Admin.,

(9th Cir. 2004). Substantial evidence is “more 14 than a mere scintilla. It means such relevant evidence as a reasonable mind might 15 accept as adequate to support a conclusion.” Richardson v. Perales,

, 16 401 (1971) (citation and internal quotation marks omitted). In reviewing the 17 Commissioner’s alleged errors, this Court must weigh “both the evidence that 18 supports and detracts from the [Commissioner’s] conclusions.” Martinez v. 19 Heckler,

(9th Cir. 1986). 20 “‘When evidence reasonably supports either confirming or reversing the 21 ALJ’s decision, [the Court] may not substitute [its] judgment for that of the ALJ.’” 22 Ghanim v. Colvin,

(9th Cir. 2014) (quoting Batson,

1196); see also Thomas v. Barnhart,

(9th Cir. 2002) (“If the

24 2 The dates listed above are from the ALJ’s decision. See Transcript (“Tr.”) 27, 29, 38. The 25 Court notes, however, that Plaintiff’s SSI application lists January 23, 2015, as the application date and December 4, 2004, as the alleged disability onset date. See Tr. 267-68. Because the 26 Court is reviewing the final decision of the Commissioner, it adopts the dates used by the ALJ. 27 3 A certified copy of the Administrative Record was filed on September 24, 2019. Electronic 1 ALJ’s credibility finding is supported by substantial evidence in the record, [the 2 Court] may not engage in second-guessing.”) (citation omitted). A reviewing 3 court, however, “cannot affirm the decision of an agency on a ground that the 4 agency did not invoke in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 5

(9th Cir. 2006) (citation omitted). Finally, a court may not 6 reverse an ALJ’s decision if the error is harmless. Burch v. Barnhart,

, 7 679 (9th Cir. 2005) (citation omitted). “[T]he burden of showing that an error is 8 harmful normally falls upon the party attacking the agency’s determination.” 9 Shinseki v. Sanders,

(2009). 10 III. DISCUSSION 11 A. Establishing Disability Under The Act 12 To establish whether a claimant is disabled under the Act, it must be shown 13 that: 14 (a) the claimant suffers from a medically determinable physical or 15 mental impairment that can be expected to result in death or that has 16 lasted or can be expected to last for a continuous period of not less than 17 twelve months; and 18 (b) the impairment renders the claimant incapable of performing the 19 work that the claimant previously performed and incapable of 20 performing any other substantial gainful employment that exists in the 21 national economy. 22 Tackett v. Apfel,

(9th Cir. 1999) (citing 42 U.S.C. 23 § 423(d)(2)(A)). “If a claimant meets both requirements, he or she is ‘disabled.’” 24 Id. 25 The ALJ employs a five-step sequential evaluation process to determine 26 whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 27

(1987);

(a). Each step is potentially 1 in the sequence, there is no need to consider subsequent steps.” Tackett,

;

. The claimant carries the burden of proof at steps one 3 through four, and the Commissioner carries the burden of proof at step five. 4 Tackett,

. 5 The five steps are: 6 Step 1. Is the claimant presently working in a substantially gainful 7 activity [(“SGA”)]? If so, then the claimant is “not disabled” within 8 the meaning of the [] Act and is not entitled to [SSI]. If the claimant is 9 not working in a [SGA], then the claimant’s case cannot be resolved at 10 step one and the evaluation proceeds to step two. See 20 C.F.R. 11 § 404.1520(b).[4] 12 Step 2. Is the claimant’s impairment severe? If not, then the 13 claimant is “not disabled” and is not entitled to [SSI]. If the claimant’s 14 impairment is severe, then the claimant’s case cannot be resolved at 15 step two and the evaluation proceeds to step three. See 20 C.F.R. 16 § 404.1520(c). 17 Step 3. Does the impairment “meet or equal” one of a list of 18 specific impairments described in the regulations? If so, the claimant is 19 “disabled” and therefore entitled to [SSI]. If the claimant’s 20 impairment neither meets nor equals one of the impairments listed in 21 the regulations, then the claimant’s case cannot be resolved at step 22 three and the evaluation proceeds to step four. See 20 C.F.R. 23 § 404.1520(d). 24 Step 4. Is the claimant able to do any work that he or she has 25 done in the past? If so, then the claimant is “not disabled” and is not 26 entitled to [SSI]. If the claimant cannot do any work he or she did in 27 4 et seq., 1 the past, then the claimant’s case cannot be resolved at step four and 2 the evaluation proceeds to the fifth and final step. See 20 C.F.R. 3 § 404.1520(e). 4 Step 5. Is the claimant able to do any other work? If not, then 5 the claimant is “disabled” and therefore entitled to [SSI]. See 20

(f)(1). If the claimant is able to do other work, then 7 the Commissioner must establish that there are a significant number of 8 jobs in the national economy that claimant can do. There are two ways 9 for the Commissioner to meet the burden of showing that there is other 10 work in “significant numbers” in the national economy that claimant 11 can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by 12 reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, 13 subpt. P, app. 2. If the Commissioner meets this burden, the claimant 14 is “not disabled” and therefore not entitled to [SSI]. See

404.1520(f), 404.1562. If the Commissioner cannot meet this burden, 16 then the claimant is “disabled” and therefore entitled to [SSI]. See

17

. 18 B. Summary Of ALJ’s Findings 19 The ALJ found at step one, that “[Plaintiff] has not engaged in [SGA] since 20 January 31, 2015, the application date (20 CFR 416.971 et seq.).” Tr. 29. At step 21 two, the ALJ found that “[Plaintiff] has the following severe impairments: diabetes 22 mellitus, type II; renal disease; peripheral neuropathy; obesity; mental impairments 23 varyingly diagnosed as anxiety disorder, adjustment disorder with mixed emotional 24 features, and major depressive disorder (20 CFR 416.920(c)).”

At step three, 25 the ALJ found that “[Plaintiff] does not have an impairment or combination of 26 impairments that meets or medically equals the severity of one of the listed 27 impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 1 In preparation for step four, the ALJ found that Plaintiff has the residual 2 functional capacity (“RFC”) to: 3 perform light work as defined in 20 CFR 416.967(b) except he can sit 4 for up to six hours in an eight-hour workday, with normal breaks, but 5 requires the freedom to make posture adjustments at the workstation. 6 He can stand and/or walk for up to six hours in an eight-hour workday, 7 with normal breaks, but would be most successful in an occupation 8 where he would have the freedom to alternate between sitting and 9 standing and/or walking without being off-task. He requires the 10 freedom to elevate his feet slightly above the floor when seated, both 11 during breaks and for five minutes before the first break and five 12 minutes after lunch. He can occasionally climb stairs and ramps, but 13 never climb ladders or scaffolds. He can occasionally balance, stoop, 14 crouch, kneel, and crawl. He should avoid exposure to unprotected 15 heights, heavy vibrations, and extreme temperatures. He would be best 16 suited for an occupation without high production quotas, and not in a 17 fast-paced work environment. He is limited to frequent handling and 18 fingering bilaterally. 19 Tr. 32-33. The ALJ then found, at step four, that “[Plaintiff] has no past relevant 20 work [(“PRW”)] (20 CFR 416.965).” Tr. 37. 21 In preparation for step five, the ALJ noted that “[Plaintiff] was born on 22 September 19, 1984[,] and was 30 years old, which is defined as a younger 23 individual age 18-49, on the date the application was filed (20 CFR 416.963).”

24 The ALJ observed that “[Plaintiff] has at least a high school education and is able 25 to communicate in English (20 CFR 416.964).”

The ALJ then added that 26 “[t]ransferability of job skills is not an issue because [Plaintiff] does not have 27 [PRW] (20 CFR 416.968).”

1 At step five, the ALJ found that “[c]onsidering [Plaintiff’s] age, education, 2 work experience, and [RFC], there are jobs that exist in significant numbers in the 3 national economy that [Plaintiff] can perform (20 CFR 416.969 and 416.969(a)).” 4

Specifically, the ALJ found that Plaintiff could perform the “[l]ight” 5 occupations of “Sub-assembler” as defined in the Dictionary of Occupational 6 Titles (“DOT”) at DOT 729.684-054, “Hand packer” at DOT 559.687-074, and 7 “Ticket taker” at DOT 344.677-010. Tr. 38. The ALJ based her decision that 8 Plaintiff could perform the aforementioned occupation “on the testimony of the 9 [VE]” from the administrative hearing, after “determin[ing] that the [VE’s] 10 testimony [wa]s consistent with the information contained in the [DOT].”

11 After finding that “[Plaintiff] is capable of making a successful adjustment to 12 other work that exists in significant numbers in the national economy,” the ALJ 13 concluded that “[a] finding of not disabled is . . . appropriate under the framework 14 of the above-cited rule.”

(internal quotation marks omitted). The ALJ, 15 therefore, found that “[Plaintiff] has not been under a disability, as defined in 16 the . . . Act, since January 31, 2015, the date the application as filed (20 CFR 17 416.920(g))” through March 28, 2018, the date of her decision.

18 C. Issues Presented 19 In this appeal, Plaintiff raises two issues, whether the ALJ (1) “satisfied the 20 Commissioner’s burden at step five of the sequential evaluation” process, and (2) 21 properly considered Plaintiff’s testimony. ECF No. 22, Joint Stip. at 4-5. The 22 Court finds that the second issue is dispositive and addresses it below. 23 D. Court’s Consideration Of Second Issue 24 1. Parties’ Arguments 25 Plaintiff argues that “the ALJ did not provide any legally sufficient reasons 26 for rejecting [his] testimony.”

. Plaintiff argues that the ALJ provided a 27 “boilerplate introduction” and then failed to “provide[] specific, clear, and 1 20. Plaintiff also argues that “the record is fully developed,” is “free from 2 conflicts and ambiguities, . . . [that] all essential factual issues have been resolved” 3 and, that “when posed with a hypothetical [question] that summarized [Plaintiff’s 4 rejected] testimony[,] the [VE] testified that such an individual would not be able 5 to work.”

at 26 (citing Tr. 60) (citations and internal quotation marks omitted). 6 Plaintiff argues that, “[t]herefore, this Court “should credit [Plaintiff’s] testimony 7 and award the payment of benefits” here.

8 Defendant responds that “[t]he ALJ properly found that Plaintiff’s 9 subjective symptom testimony was not fully supported by the record, and 10 Plaintiff’s disagreement with the ALJ is not evidence of error.”

. 11 Defendant adds that “[a]s the ALJ also considered, the medical evidence was 12 generally unremarkable.”

. Specifically, Defendant argues that although 13 “Plaintiff contends that the ALJ did not rely on Plaintiff’s daily activities[,]” “the 14 ALJ specifically discussed Plaintiff’s daily activities and noted that she found 15 Plaintiff’s testimony ‘not entirely consistent with the medical evidence and other 16 evidence in the record for the reasons explained in this decision.’”

at 31 17 (quoting Tr. 35) (emphasis added by Defendant). Defendant “requests that this 18 Court affirm the Commissioner’s decision because it is supported by substantial 19 evidence and [is] free from legal error” and argues that that if the Court disagrees, 20 “the only appropriate remedy would be remand to the [A]gency for further 21 administrative development” because “[t]he record in this case contains 22 conflicting evidence as to whether Plaintiff is disabled, making a judicial 23 determination of disability inappropriate” here.

. 24 2. ALJ’s Consideration Of Plaintiff’s Statements 25 The ALJ found that: 26 After careful consideration of the evidence, . . . [Plaintiff’s] 27 medically determinable impairments could reasonably be expected to 1 concerning the intensity, persistence and limiting effects of these 2 symptoms are not entirely consistent with the medical evidence and 3 other evidence in the record for the reasons explained in this decision. 4 As for [Plaintiff’s] statements about the intensity, persistence, 5 and limiting effects of his or her symptoms, they are inconsistent 6 because there is minimal evidence of the swelling that he testified 7 prevents him from standing and sitting for extended periods. There is 8 minimal evidence of numbness and during the consultative examination 9 [Plaintiff] exhibited full intact sensitivity. There is no evidence 10 supporting a lifting limit of only five to ten pounds, and on examination 11 [Plaintiff] exhibited normal grip strength, normal motor strength, and a 12 full range of motion throughout. The memory and attention deficits 13 that he reported were not observed during his psychiatric consultative 14 examination. 15 Tr. 35 (citing Tr. 507-08). 16 The ALJ also noted that with regard to Plaintiff’s “testimony about his need 17 to elevate his feet to alleviate swelling and numbness, although not clearly 18 supported by the medical evidence of record, [it] is given the benefit of the doubt 19 and supports the [RFC] finding that he requires the freedom to [periodically] 20 elevate his feet slightly above the floor . . . .” Tr. 37. 21 3. Standard To Review Plaintiff’s Pain Related Claims 22 When a claimant has medically documented impairments that “might 23 reasonably produce the symptoms or pain alleged and there is no evidence of 24 malingering, the ALJ must give ‘specific, clear, and convincing reasons for 25 rejecting’ the testimony by identifying ‘which testimony [the ALJ] found not 26 credible’ and explaining ‘which evidence contradicted that testimony.’” Laborin 27 v. Berryhill,

(9th Cir. 2017) (emphasis in original) (quoting 1 easy requirement to meet: ‘the clear and convincing standard is the most 2 demanding required in Social Security cases.’” Garrison v. Colvin,

, 3 1015 (9th Cir. 2014) (quoting Moore v. Comm’r Soc. Sec. Admin.,

, 4 924 (9th Cir. 2002)). 5 “The ALJ may consider inconsistencies either in the claimant’s testimony or 6 between the testimony and the claimant’s conduct.” Molina v. Astrue,

(9th Cir. 2012). Also, while an ALJ cannot reject the severity of 8 subjective complaints solely on the lack of objective evidence, the ALJ may 9 nonetheless look to the medical record for inconsistencies. See Morgan v. Comm’r 10 Soc. Sec. Admin.,

(9th Cir. 1999) (finding that “[t]he ALJ 11 provided clear and convincing reasons for rejecting [Plaintiff’s] testimony” by 12 “point[ing] to specific evidence in the record—including reports by [Plaintiff’s 13 doctors]—in identifying what testimony was not credible and what evidence 14 undermined [Plaintiff’s] complaints.”). 15 4. ALJ’s Decision Is Not Supported By Substantial Evidence 16 Here, as initial matter, the Court agrees with Plaintiff’s argument that the 17 ALJ’s inclusion of the boilerplate language at the outset of his adverse credibility 18 finding does not assist the Court with its analysis of the ALJ’s finding. See 19 Treichler v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2014) 20 (finding that “[a]n ALJ’s ‘vague allegation’ that a claimant’s testimony is ‘not 21 consistent with the objective medical evidence,’ without any ‘specific findings in 22 support’ of that conclusion is insufficient for our review” and that this 23 “language . . . in ALJ decisions adds nothing” to the Court’s analysis of the ALJ’s 24 finding (internal citations omitted)). 25 The Court finds, however, that the mere inclusion of this boilerplate 26 language was harmless and does not constitute reversible error. See Laborin v. 27 Berryhill,

(9th Cir. 2017) (finding “that inclusion of [similar] 1 does not, however, add anything to the ALJ’s determination of either the RFC or 2 the claimant’s credibility.” (internal citation omitted)). 3 Turning to the reasons provided by the ALJ for rejecting Plaintiff’s 4 statements, the Court first examines the reasons provided by the ALJ for rejecting 5 Plaintiff’s statements regarding his physical limitations—that there was “minimal” 6 or “no” evidence “swelling[,]” “numbness[,]” or Plaintiff’s ability to lift “only 7 five to ten pounds” in the record—and finds that this was not a clear and 8 convincing reason supported by substantial evidence in the record for rejecting 9 Plaintiff’s testimony for two reasons. 10 First, Plaintiff provided a valid reason for there being minimal medical 11 evidence in the record to corroborate his symptom statements—he could not afford 12 more treatment—and the ALJ failed to consider or discuss this evidence. See 13 Carmickle v. Comm’r, Soc. Sec. Admin.,

(9th Cir. 2008) 14 (“[A]lthough a conservative course of treatment can undermine allegations of 15 debilitating pain, such [a] fact is not a proper basis for rejecting the claimant’s 16 credibility where the claimant has a good reason for not seeking more aggressive 17 treatment.”); see also Orn v. Astrue,

(9th Cir. 2007) 18 (“[d]isability benefits may not be denied because of the claimant’s failure to obtain 19 treatment he cannot obtain for lack of funds.” (internal quotation marks omitted)). 20 Specifically, in August 2014, Plaintiff stated that he was diagnosed in 2004 21 “with a particular form of neuropathy [called] nephropathy” that caused severe 22 fluid retention and swelling in his legs and scrotum. Tr. 75-76. Plaintiff indicated 23 that he was taking Prednisone to help alleviate the symptoms caused by his 24 nephropathy, but because he did “not [have] enough [money] to pay for a doctor 25 visit and medication” he had to discontinue use of Prednisone in 2008 and by 2010 26 he could also no longer even afford to see his doctor. Tr. 76-77. The ALJ did not 27 consider or discuss this evidence. 1 Moreover, treatment notes in Plaintiff’s medical records, which the ALJ also 2 did consider or discuss, corroborate Plaintiff’s testimony. See Tr. 470, 473 3 (“Nephrotic syndrome exacerbation” diagnosed in March 2004); Tr. 472-73, 475- 4 76, 480-81, 483-84, 486-87 (medical records from December 2004 through March 5 2005 noting swelling in Plaintiff’s lower extremities and scrotum, anasarca of his 6 lower extremities, increasing edema, and pedal edema); Tr. 490, 563 (Plaintiff’s 7 treating doctor noting in February 2015 that “in 12/2004 [Plaintiff] had retained 8 100lbs of fluid which lead to a hospitalization at St. Francis[,]” he “was placed on 9 Prednisone 40mg until 2007 . . . [and] Cellcept which he took for only two months 10 due to cost” and “was subsequently lost to follow [up appointments] due to 11 insurance issues.”). 12 Accordingly, because Plaintiff had a valid reason for the “minimal” medical 13 evidence in his record to corroborate his symptom statements—he could not afford 14 more treatment—and because notes in Plaintiff’s medical records corroborate 15 Plaintiff’s testimony, the ALJ’s rejection of Plaintiff’s symptom statements due to 16 the minimal evidence in the record to support Plaintiff’s claims was not a clear and 17 convincing reason to reject Plaintiff’s symptom statements. See Carmickle, 533 18 F.3d at 1162; Orn,

. 19 Second, as noted above, the ALJ failed to consider or discuss the 20 aforementioned evidence that supports Plaintiff’s statements and, instead, 21 considered only evidence that supported rejecting Plaintiff’s statements. See 22 Holohan v. Massanari,

(9th Cir. 2001) (holding an ALJ 23 cannot selectively rely on some entries in a plaintiff’s records while ignoring 24 others). Much of the evidence discussed above predates Plaintiff’s January 31, 25 2015, SSI application date and is, therefore, relevant for purposes of corroborating 26 Plaintiff’s symptom statements only. However, the ALJ’s finding that there was 27 minimal or no evidence of swelling or numbness also ignores newer evidence in the 1 are from within the relevant time period. See Carmickle,

2 (“Medical opinions that predate the alleged onset of disability are of limited 3 relevance.” (citation omitted)); see also Tr. 491, 505, 518, 528, 544, 561, 569-71, 4 573, 576, 579-80 (Plaintiff’s recent medical records from February 2015 through 5 July 2017 noting “diabetic neuropathy,” “neuropathy in both feet,” “neuropathy 6 of legs,” polyneuropathy of arms and legs,” “nephropathy,” “occasional 7 swelling,” “fluid retention,” “pain to [left] leg,” pain in left groin to left hip, 8 “whole l[ef]t leg numb,” “groin pain,” “high” levels of “microalbumin” and 9 “hemoglobin” in Plaintiff’s urine, right elbow pain lasting for two weeks, “blurred 10 vision,” and “dizziness, numbness in extremity”) (capitalization normalized). 11 Accordingly, because the ALJ failed to consider or discuss the 12 aforementioned evidence, the Court finds that the ALJ’s rejection of Plaintiff’s 13 statements regarding his physical impairments was not supported by substantial 14 evidence in the record. See Holohan,

. The fact that the ALJ 15 gave Plaintiff “the benefit of the doubt” and included some allowance for Plaintiff 16 to elevate his feet slightly off the floor in Plaintiff’s RFC does not cure the ALJ’s 17 failure to consider the aforementioned evidence. Tr. 37. Rather, on the record 18 before the Court, it appears that Plaintiff’s limitations are greater than the ALJ 19 accounted for in Plaintiff’s RFC. Thus, the Court REVERSES the ALJ’s decision 20 and finds that REMAND to the Administration is appropriate here. 21 However, because it is unclear on the record before the Court whether 22 Plaintiff can perform substantial gainful employment in light of his impairments 23 and the evidence discussed above, rather than remanding for an award of benefits 24 as Plaintiff argues is appropriate here, the Court finds that remand for further 25 proceedings is necessary in this case so that the ALJ may reassess Plaintiff’s 26 limitations in light of the above discussed evidence. 27 Because the Court remands as to this issue, it does not reach Plaintiff’s 1 IV. CONCLUSION 2 Because the Commissioner’s decision is not supported by substantial 3 | evidence, IT IS HEREBY ORDERED that the Commissioner’s decision is 4 | REVERSED and this case is REMANDED for further administrative proceedings 5 | under sentence four of

(g). See Garrison,

6 | (holding that under sentence four of

(g), “[t]he court shall have 7 | power to enter... judgment affirming, modifying, or reversing the decision of the 8 | Commissioner ..., with or without remanding the cause for a rehearing.’’) 9 | (citation and internal quotation marks omitted). 10 IT ISSO ORDERED. 11 * | DATED: 04/10/2020 Np en 13 HONORABLE SHASHI H. KEWALRAMANI 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28