1

2

3 O

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10

11 CASSANDRA E. L., Case No. 5:19-cv-1783- KES

12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER

14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16

17

18 I.

19 PROCEDURAL BACKGROUND

20 Plaintiff Cassandra E. L. (“Plaintiff”) applied for supplemental security 21 income (“SSI”) disability benefits in 2015, alleging a disability onset date of 22 December 15, 2012.1 Administrative Record (“AR”) 35, 353. On July 16, 2018, 23 an Administrative Law Judge (“ALJ”) conducted a hearing which Plaintiff and her 24 husband attended without a legal representative. AR 166-206. On September 13, 25 2018, the ALJ issued an unfavorable decision. AR 35-43. The ALJ found that 26

27 1 Elsewhere, Plaintiff claimed that she became unable to work on February 10, 2013, and also December 15, 2014. See AR 324, 358. 28 1 Plaintiff suffered from medically determinable severe impairments of 2 “gastroparesis, left shoulder AC joint arthrosis, left shoulder bicipital tendonosis, 3 status post right forearm fracture, cervical spondylosis and radiculopathy status 4 post cervical fusion, and status post fifth metacarpal fracture.” AR 37. Despite 5 these impairments, the ALJ found that Plaintiff had the residual functional capacity 6 (“RFC”) to perform “light” work with some limitations on postural activities, only 7 occasional exposure to extreme cold and vibration, and an accommodation “to take 8 four five-minute bathroom breaks a day in excess of normal breaks.” AR 38. 9 Based on this RFC and the testimony of a vocational expert (“VE”), the ALJ found 10 that Plaintiff could not perform her past relevant work as a ski instructor, but she 11 could work as an usher, counter clerk, or rental clerk. AR 41-43, 183. The ALJ 12 concluded that Plaintiff was not disabled. AR 43. 13 II. 14 ISSUE PRESENTED 15 This appeal presents the sole issue of whether the ALJ gave clear and 16 convincing reasons for discounting Plaintiff’s subjective symptom testimony. 17 (Dkt. 18, Joint Stipulation [“JS”] at 4.) 18 III. 19 OVERVIEW OF THE MEDICAL EVIDENCE 20 The following is a chronological summary of the relevant medical evidence: 21 • 4/6/10: A “Final Progress Note” from Loma Linda states that Plaintiff 22 complained of “nausea & vomiting x 6 wks.” AR 737. Tests revealed a “normal 23 pancreas” and her abdominal “pain improved.” Id. 24 • 5/17/10: A Loma Linda gastroenterology appointment record notes 25 “gastroparesis” and “nausea & vomiting” as diagnoses. A handwritten note says, 26 “paralyzing of the sponias nerve damage.” AR 733. 27 • 8/15/11: Plaintiff went to Loma Linda complaining of abdominal pain, 28 nausea, and vomiting. AR 734. After an endoscopic examination, she was 1 diagnosed with “probable gastroparesis.” AR 735-36. 2 • 12/5/12: Plaintiff went to Bear Valley Community Hospital ER 3 complaining of left shoulder pain, constant over the last week. AR 451, 454. She 4 had a normal ECG test. AR 452. She denied abdominal pain and had a normal 5 range of motion (“ROM”) with no tenderness. AR 454-55. She was diagnosed as 6 suffering a muscle spasm affecting her left shoulder. AR 455. The ER staff 7 assessed Plaintiff as “very rude and hostile” and noted that she left prior to 8 receiving care instructions. Id. 9 • 12/15/12: Plaintiff’s alleged disability onset date. AR 353. 10 • 11/18/14: Plaintiff went to Loma Linda for a “pre-op visit” complaining of 11 “worsening posterior neck pain for approximately 11 months after lifting a box out 12 of a car.” AR 477. She described numbness and tingling affecting her left fingers. 13 Id. She denied dizziness and gait problems. AR 479. She had a normal gait and 14 balance. AR 480. Loma Linda performed a cervical discectomy and fusion to 15 address “moderate to severe cervical stenosis.” AR 481, 486. She reported 16 “complete resolution” of the hand numbness and neck pain and was discharged at 17 “5/5 strength.” AR 486. 18 • 12/2/15: Plaintiff went to the Bear Valley ER complaining that she injured 19 her right arm when she “fell on ice.” AR 523. X-rays revealed a fifth metacarpal 20 fracture. AR 524. At the time, she denied nausea and vomiting. AR 526. She 21 also denied hand numbness and problems with walking. Id. She had no shoulder 22 tenderness. AR 527. 23 • 12/3/15: The next day, Plaintiff returned to the ER complaining of 24 abdominal pain. AR 510, 519. She told the doctors that her nausea and vomiting 25 felt like past pancreatitis. AR 519. She was diagnosed with pancreatitis and a 26 urinary tract infection (“UTI”). AR 518. 27 • Jan. 2016: Plaintiff went back to the Bear Valley ER complaining of left 28 shoulder pain and right wrist pain after falling two weeks earlier. AR 501-02. 1 Imaging tests revealed a “normal left shoulder” and a “healing 5th metacarpal 2 fracture” of her right wrist, referring to the fracture identified in December 2015. 3 AR 502, 504. At the time, she denied nausea and vomiting. AR 508. 4 • 1/24/16: Plaintiff underwent an orthopedic evaluation by consultative 5 examiner Dr. Joseph. AR 464. She told Dr. Joseph that she had suffered from 6 gastroparesis since tubal ligation surgery in 2008, but it was only diagnosed in 7 2010. AR 464-65. She explained that she had a cast on her right wrist because she 8 broke it slipping on ice. AR 465. She reported that she had experienced left 9 shoulder pain since February 2013, but she acknowledged that testing had not 10 revealed any pathology. AR 465. At the time, her only pain medication was 11 ibuprofen. Id. She was wearing a bone stimulator brace on her neck. AR 467. 12 Dr. Joseph conducted negative straight leg raising tests. AR 467. He observed a 13 limited ROM of Plaintiff’s shoulders and spine. AR 468. She stated that she could 14 not look to the left or down. AR 465. She claimed that she was unable to squat or 15 stand on her heels. AR 468. 16 • 2/23/17: Plaintiff called an ambulance complaining of abdominal pain and 17 pancreatitis. AR 729. At the St. Mary’s ER, she complained of an allergic 18 reaction (face and throat swelling) after eating peanut butter. AR 695. She 19 reported episodes of vomiting but no dizziness. AR 711. The ER staff noted “no 20 obvious swelling visible at this time.” AR 696. They also noted that Plaintiff 21 refused to answer questions during assessment and stated, “I just want my 22 prescription so that I can go”; then she “got up and left.” AR 696-97, 706. “Called 23 in lobby x 3 for DC [discharge] instructions – no answer.” AR 696. 24 • 4/24/17: Plaintiff returned to the St. Mary’s ER complaining of right hip 25 and rib pain after she slipped on dog urine at home. AR 684. After x-rays 26 revealed no fractures, she was diagnosed with a “contusion of chest wall.” AR 27 650, 687-88. At the time, her neck and back were assessed as normal. AR 685. 28 She was prescribed hydrocodone. AR 551. 1 • 10/3/17: Plaintiff went to the St. Mary’s ER complaining of abnormal 2 stools. AR 597-98. While one note says that she denied pain and vomiting, 3 another says that she reported that her gastroparesis caused her “to vomit every 4 day.” AR 597, 600. An abdominal scan revealed a “normal” pancreas, stomach, 5 and other organs. AR 630-31. Lab tests showed she was suffering from another 6 UTI. AR 634. 7 At this same ER visit, Plaintiff also complained of right-hand pain from 8 another fall. AR 597. She told the ER that “2 days ago, [she] slipped and fell on a 9 hanger, hitting her hand,” but she denied any “numbness or tingling.” AR 624. 10 Hand x-rays showed no new fracture. AR 629. She refused an offered splint for 11 her hand. AR 634. 12 • 10/25/17: A few weeks later, Plaintiff was seen at St. Mary’s ER 13 complaining of abdominal pain, nausea, and vomiting over the last 5 days. AR 14 533-34, 544, 578. She did not complain of dizziness, and her extremities had a 15 normal ROM. AR 579-80. She was diagnosed as still suffering from a UTI with 16 elevated lipase. AR 533, 548. 17 • 6/28/18: Plaintiff went to physical therapy for left-shoulder pain. AR 720. 18 She told her therapist that she had been diagnosed with “frozen shoulder” in 2016. 19 Id. She was referred to therapy because in April 2018, she “sustained a fall and re- 20 injured her left shoulder.” Id. Although x-rays revealed no fracture or dislocation, 21 her doctors suspected “potential for rotator cuff impingement.” Id. She had 22 reduced ROM in her left shoulder. AR 721. Further imaging in July 2018 23 revealed a rotator cuff tear, and Plaintiff was referred for surgery. AR 739. 24 • 8/4/18: Plaintiff answered questions about her medical history. She 25 denied trouble concentrating on things like reading or watching TV. AR 62; 26 compare AR 190-91 (In July 2018, Plaintiff testified, “I don’t even watch TV” and 27 “I can’t focus.”). Plaintiff said she spent ½ hour per day doing activities “such as 28 walking, gardening, swimming.” AR 65; compare AR 190 (Plaintiff spent most of 1 each day in bed), AR 193 (Plaintiff walked into walls because of bad balance), and 2 AR 383 (Plaintiff got dizzy if she walked “a little bit” and could not walk one 3 block). Plaintiff said that she did not often have trouble sleeping. AR 65; compare 4 AR 193 (Plaintiff testified, “I don’t even sleep most of the time. … I can’t even 5 sleep.”) 6 • 9/13/18: The ALJ issued his decision.2 AR 43. 7 • 12/4/18: Plaintiff went to Ultimate Sports and Orthopaedics (“US&O”) for 8 additional care for her left shoulder. She told US&O that she had been 9 experiencing left shoulder pain for about three months after falling at home, 10 apparently referencing her fall in June 2018. AR 99. Plaintiff reported pain with 11 overhead reaching but denied tingling or numbness. Id. She denied any prior 12 shoulder injury. Id. 13 • 12/5/18: Plaintiff attended an appointment for “pre-op clearance.” AR 71. 14 She had a normal ROM in her extremities and lower back and reported “No Med 15 Probs.” Id. Clinic staff, however, wrote, “Pt demands that I provide pre-op 16 clearance NOW! No PE [physical examination] allowed/permitted by pt. Pt was 17 unwilling to discuss planned sx [surgery]. Pt accosted me verbally …. Pt snatched 18 all clinic visit documents from me and stormed out of clinic, stomping feet, 19 screaming ….” Id. 20 • 12/13/18: Plaintiff underwent surgery to repair her torn left rotator cuff. 21 AR 123. 22 • 3/12/19: At a follow-up appointment, Plaintiff reported no change in her 23 symptoms and pain at 8/10, but she was able to achieve a full ROM with pain. AR 24 51-52. 25 2 The parties do not discuss whether the Appeals Council considered records 26 submitted after the ALJ’s decision. See AR 2 (Appeals Council discussion of 27 additional medical evidence). The Court summarizes these records for completeness. 28 1 ¢ 4/19/19: At the next appointment, Plaintiff reported that her pain had 2 | worsened to 10/10, but she still had an “unremarkable but painful” shoulder ROM. 3 | AR 53-54. Medical staff observed that her strength and muscle tone were 4 | “normal.” AR 54. 5 IV. 6 DISCUSSION 7 A. ALJ’s Evaluation of Subjective Symptom Testimony. 8 It is the ALJ’s role to evaluate the claimant’s testimony regarding subjective 9 | pain or symptoms. See Molina v. Astrue,

(9th Cir. 2012). 10 | “[T]he ALJ is not required to believe every allegation of disabling pain, or else 11 | disability benefits would be available for the asking, a result plainly contrary to 42 12 | U.S.C. § 423(d)(5)(A).” Id. at 1112. An ALJ’s assessment of symptom severity is 13 | entitled to “great weight.” Weetman v. Sullivan,

(9th Cir. 1989). 14 If an individual alleges impairment-related symptoms, the ALJ must 15 | evaluate those symptoms using a two-step process. First, “the ALJ must determine 16 | whether the claimant has presented objective medical evidence of an underlying 17 | impairment ‘which could reasonably be expected to produce the pain or other 18 | symptoms alleged.’” Treichler v. Comm’r of SSA,

(9th Cir. 19 | 2014) (citation omitted). Second, if the claimant meets the first test, the ALJ may 20 | discredit the claimant’s subjective symptom testimony only upon making specific 21 | findings that support the conclusion. Berry v. Astrue,

(9th 22 | Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must 23 | provide “clear and convincing” reasons for rejecting the claimant’s testimony. 24 | Ghanim v. Colvin,

, 1163 n.9 (9th Cir. 2014). 25 In assessing the intensity and persistence of symptoms, the ALJ “examine[s] 26 | the entire case record, including the objective medical evidence; an individual’s 27 | statements ...; statements and other information provided by medical sources and 28 | other persons; and any other relevant evidence in the individual’s case record.”

1 | Soc. Sec. Ruling (“SSR”) 16-3p,

at *4. ALJs may also 2 | consider inconsistency in the claimant’s statements. Ghanim,

; 3 | SSR 16-3p,

at *8 (“[The Commissioner] will compare 4 | statements an individual makes in connection with the individual’s claim for 5 | disability benefits with any existing statements the individual made under other 6 || circumstances.’’). 7 If the ALJ’s findings are supported by substantial evidence in the record, 8 | courts may not engage in second-guessing. Thomas v. Barnhart,

, 9 | 959 (9th Cir. 2002). 10 B. Summary of Plaintiff’s Testimony. 11 Plaintiff initially applied for SSI alleging that she suffered from 12 | gastroparesis, constant vomiting, fused cervical spine, and head stiffness. AR 357. 13 1. Exertion Questionnaire. 14 In an Exertion Questionnaire dated November 11, 2015, Plaintiff wrote that 15 | she tries to walk “a little bit” but always has to sit down because she gets “so dizzy 16 | and light-headed” that she fears blacking out. AR 383. She could walk around the 17 | grocery store to select items, but her husband or teenage daughter needed to lift 18 | them. AR 384. She identified dizziness as a symptom of her gastroparesis.

19 | She reported throwing up 2-4 times per day. AR 385-86 (reporting nausea and 20 | vomiting “all day long’). She was taking 9 medications to address gastrointestinal 21 | issues. AR 387-88. 22 She could not lift more than five pounds and could not effectively use her 23 | left hand because “3 out of 5 fingers” on that hand were “completely numb.” AR 24 | 384. She attributed weakness in her left hand to carpal tunnel syndrome. AR 389. 25 | She also could not lift her left arm “up all the way.” AR 385; AR 389 (could not 26 | lift it “more than eye level’). She explained that her pain was “there 24 hrs a day” 27 | because she is allergic to “morphine, Norco, Vicodin, gabapentin, naproxen, and 28 | soma.” AR 386. She was taking Tylenol, Ultram, Tramadol, and ibuprofen for

1 pain. AR 388. 2 She was still able to drive and drove daily to pick up her daughter from 3 school. AR 384. Nevertheless, she reported that she could not turn her head “to 4 the left or up and down all the way.” AR 385. She had a neck brace and reported 5 that if she did not wear it, then she could not “move [her] head at all.”

6 She no longer did household chores other than folding laundry. She could 7 not lift the laundry, “bend over” to clean the bathroom, or push a vacuum. AR 8 385. 9 2. Hearing Testimony. 10 At the hearing in July 2018, Plaintiff testified that she had pain in her left 11 shoulder and mid-back. AR 186. Her left shoulder pain ran down to her left hand. 12

Her pain was constant and was typically at a level six or seven out of ten. AR 13 187. She was taking ibuprofen during the day and Tylenol with codeine at night. 14

Even with pain medication, her pain level was never below six. AR 188. 15 She testified that she had just finished a course of physical therapy for her 16 left shoulder and had been referred to a surgeon. AR 188. 17 Regarding her stomach, she testified that she was nauseated constantly and 18 threw up 4-6 times per day. AR 189. She attributed this to a surgeon cutting a 19 “stomach nerve” during surgery in 2008.

She explained that she was still able 20 to work after 2008 because her condition got “worse and worse” over time until 21 2012 or 2013 when she was throwing up daily. AR 189-90. 22 She testified that she drops things “all the time” because her fingers tingle to 23 the point where she cannot even perceive if she is holding something. AR 193. 24 She testified that the tingling was constant.

She also walks into walls because 25 her “balance is off.”

26 On a typical day, she testified that she lays down with a cold rag on her head 27 watching her cats; she cannot focus enough to watch TV. AR 190-91. Her 28 daughter does the household cooking. AR 191. She did “side jobs” cleaning 1 | houses “and stuff’ from 2012-2014. AR 183-84. 2 C. The ALJ’s Evaluation of Plaintiff’?s Subjective Symptom Testimony. 3 The ALJ began his consideration of Plaintiff’s subjective symptoms 4 | testimony by reciting the two-step process required by law. AR 38. The ALJ then 5 | provided a short summary of Plaintiff’s testimony: 6 Plaintiff has pain in her left shoulder, stomach, and mid-back. She 7 has constant nausea. She vomits four to six times a day. She has 8 problems with her right hand. She has tingling in her bilateral hands. 9 She spends all day lying in bed. Her thirteen-year-old daughter does 10 household chores. 11 | AR 39. 12 The ALJ determined that Plaintiff satisfied the first step, i.e., her medically 13 | determinable impairments could reasonably be expected to cause the alleged 14 | symptoms of pain, vomiting, and hand-tingling.

At step two, however, the 15 | ALJ found that Plaintiffs statements about “the intensity, persistence and limiting 16 | effects of these symptoms are not entirely consistent with the medical evidence and 17 | other evidence in the record for the reasons explained in this decision.”

18 Rather than immediately providing reasons, the ALJ next summarized 19 | Plaintiffs treating records, the medical opinion evidence, and statements from 20 | non-medical sources. AR 38-41. The ALJ concluded by repeating his initial 21 | assertion of inconsistency: “While there are exertional limitations, the intensity and 22 || persistence of symptoms as alleged by the claimant are not consistent with the 23 | medical record signs and laboratory findings, or the medical record as a whole.” 24 | 25 D. The ALJ Did Not Give Sufficient Clear and Convincing Reasons for 26 Discounting Plaintiff’s Subjective Symptom Testimony. 27 “Long-standing principles of administrative law require [the Court] to 28 || review the ALJ’s decision based on the reasoning and factual findings offered by 10

1 the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator 2 may have been thinking.” Bray v. Comm’r of SSA,

(9th Cir. 3 2009). The Court therefore must examine the reasons given by the ALJ for 4 discounting Plaintiff’s testimony. 5 Reason One: The parties agree that one reason the ALJ gave for discounting 6 Plaintiff’s subjective symptom testimony is that it was not supported by objective 7 medical evidence. (JS at 9, 12.) Throughout the summary of Plaintiff’s treating 8 records, the ALJ contrasted her subjective complaints with the results of imaging 9 studies, other tests, and physical examinations. AR 39-40. The parties also agree, 10 however, that the ALJ cannot cite the lack of objective support as the sole reason 11 for discounting subjective symptom testimony. Burch v. Barnhart,

, 12 681 (9th Cir. 2005) (“Although lack of medical evidence cannot form the sole 13 basis for discounting pain testimony, it is a factor that the ALJ can consider.”) 14 Proposed Reason Two: Defendant suggests that the ALJ also gave as a 15 reason that Plaintiff’s course of treatment was more infrequent or conservative than 16 one would expect given Plaintiff’s subjective symptom testimony. (JS at 15.) The 17 ALJ, however, never characterized Plaintiff’s treatment as conservative or 18 aggressive. 19 In commenting on the lack of frequent or consistent treatment, the ALJ did 20 say, “During the relevant period, the claimant had very few office visits or 21 hospitalizations for recurrent vomiting.” AR 39. Defendant argues that this 22 contrast drawn between Plaintiff’s claims and her course of treatment was intended 23 to be a reason to discount Plaintiff’s testimony. (JS at 15 [“If Plaintiff’s 24 gastroparesis was as severe as Plaintiff alleged, then it was reasonable to conclude 25 that she would have sought treatment for the condition on a more frequent 26 basis.”].) 27 The ALJ, however, found that Plaintiff suffers from the severe impairment 28 of gastroparesis and credited both her testimony and her husband’s testimony that 1 Plaintiff vomits frequently. AR 37, 39. Based on this testimony, the ALJ included 2 additional bathroom breaks in the RFC. AR 39. The ALJ, therefore, was not 3 citing the infrequency of Plaintiff’s doctor visits and/or hospitalizations for 4 recurrent vomiting as a reason to disbelieve her testimony that she vomits 5 frequently. If the ALJ intended to cite the infrequency of Plaintiff’s treatment as a 6 reason to disbelieve her testimony that the vomiting causes her to become dizzy or 7 requires her to lay on the bathroom floor for up to 25 minutes to recover, then the 8 ALJ did not explain his reasoning. 9 Proposed Reason Three: Defendant suggests that since the ALJ also relied 10 on medical opinion evidence that was inconsistent with Plaintiff’s testimony, the 11 ALJ did not rely solely on the lack of supporting medical evidence to discount that 12 testimony. (JS at 15-16.) 13 The ALJ gave “great weight” to the opinion of state agency consultant Dr. 14 Ligon, the doctor who assessed the most restrictive RFC by finding that Plaintiff 15 could do light work with some postural limitations. AR 41 (contrasting Dr. 16 Ligon’s opinions with those of consultative examiner Dr. Joseph who opined that 17 Plaintiff could do medium work). ALJs, however, are required to discuss each 18 medical opinion and state what weight they gave it. See

(c). 19 If doing so constituted a clear and convincing reason for discounting claimants’ 20 subjective symptom testimony, then the rule articulated in Berry, Ghanim, and 21 other case law would be rendered meaningless. 22 Proposed Reason Four: Plaintiff suggests that the ALJ found Plaintiff’s 23 testimony inconsistent with the medical opinion evidence but failed to identify 24 which statements were inconsistent with which medical records. (JS at 8.) 25 If a claimant gives testimony that is inconsistent with subjective complaints 26 reported in the medical evidence, that can provide a clear and convincing reason 27 for discounting the claimant’s testimony. For example, if a claimant testifies at the 28 hearing that he cannot walk to the end of his driveway, but his medical records 1 | consistently reflect a steady or normal gait, then the ALJ could cite that 2 | inconsistency as a reason separate and distinct from the lack of objective support. 3 | See Ghanim,

; SSR 16-3p,

at *8. 4 Here, however, the ALJ cites to no specific inconsistencies between 5 | Plaintiff's testimony and specific medical records. The ALJ did not discuss 6 || Plaintiff’s statements about dizziness and difficulty walking. Concerning 7 | Plaintiff's musculoskeletal complaint, the ALJ wrote, “the record does not support 8 | the severity of her allegations.” AR 40. The ALJ, however, did not explain this 9 | conclusion or identify inconsistencies, other than pointing out the lack of 10 | supporting objective evidence and summarizing the results of the consultative 11 | examination.

As articulated by the ALJ, this is not an additional “clear and 12 | convincing” reason. 13 E. Credit as True Rule. 14 Plaintiff argues that the Court must apply the “credit-as-true” rule, credit 15 | Plaintiff's subjective symptom testimony, and remand for a finding of disability. 16 | (JS at 10-11.) Defendant counters that if the Court finds error, then remand for 17 | reconsideration is appropriate, because if there are lingering doubts about 18 | Plaintiffs disability, she is not entitled to benefits merely because the ALJ erred. 19 | (Id. at 16-18.) 20 The Court has doubts about Plaintiff's disability. Plaintiff worked as a ski 21 | instructor until sometime between 2012 and 2014. See AR 183, 190 (testifying 22 | that she stopped working as a ski instructor in 2012 or 2013 because she was 23 | “hemorrhaging and throwing up”); compare AR 369 (writing that she worked at 24 | the ski resort until December 2014). She appears to have claimed a disability onset 25 | date of December 15, 2012 (AR 353), but she was able to work part-time cleaning 26 | houses between 2012 and 2014 (AR 183) and she provided no medical records 27 | from these years. 28 She had cervical fusion surgery in 2014 (AR 468) and wrote in November 13

1 2015 that she used her bone stimulator neck brace “everyday for 4-6 hours.” AR 2 385. She wore that brace to her consultative examination (AR 467), but not a 3 single other ER or medical appointment record comments that Plaintiff is wearing 4 a neck brace. 5 There are no medical records in which Plaintiff complains of dizziness, let 6 alone dizziness so serious it impairs her ability to walk. None of the medical 7 records note that Plaintiff had any difficulty walking.3 In August 2018, just a 8 month before the ALJ’s decision, Plaintiff stated that she spent thirty minutes 9 every day doing physical activities like walking, gardening, and swimming. AR 65. 10 While Plaintiff complained of left-hand tingling and numbness before her 11 surgical fusion surgery in 2014 (AR 477), after that procedure, she reported that 12 those symptoms had resolved (AR 486). In her 2015 function questionnaire, she 13 reported that several fingers on her left hand were “completely numb.” AR 384. 14 At the hearing in 2018, she testified that her fingers “are constantly tingling.” AR 15 193. Yet in her medical records after 2014, she consistently denied tingling and 16 numbness. See, e.g., AR 526, 624. 17 When Plaintiff sought medical attention for vomiting, it was generally 18 because she had a UTI (AR 518, 634, 533, 548) or allergic reaction (AR 695). 19 Plaintiff’s husband testified that Plaintiff was eating less because she vomited so 20 frequently to the point where “she can’t eat hardly anything anymore.” AR 197. 21 In July 2018, however, Plaintiff reported that she was not concerned about her 22 weight. AR 65. In October 2017, her weight was about 132 pounds. AR 542 23 (converting from kg). In May 2018, it was 132 pounds. AR 69. In March 2019, it 24 was 132 pounds. AR 52. At times it fluctuated higher, but not significantly lower. 25 AR 61, 70, 90, 96, 466, 600, 646. 26 Regarding her left shoulder, Plaintiff first reported pain in December 2012 27 3 To the contrary, she was able to stomp her feet. See AR 74. 28 1 | and was diagnosed with a muscle spasm. AR 455. She denied shoulder tenderness 2 | 1n December 2015 after falling on ice and fracturing her right pinky finger. AR 3 | 527. The next month, however, she attributed left shoulder pain to her fall; 4 | imaging revealed a normal shoulder. AR 501-04. Plaintiff slipped on dog urine in 5 | April 2017 but fell on her right side. AR 684. She slipped and fell again a few 6 || months later, this time on a hanger, but alleged only right hand pain. AR 624. In 7 | June 2018, Plaintiff reported yet another fall, at which point imaging revealed a left 8 || rotator cuff tear. AR 739. Later that year, she denied any prior shoulder injury 9 | other than that which resulted from her June 2018 fall. AR 99. 10 Given this record, remand for further administrative proceedings is 11 | appropriate. See Garrison v. Colvin,

(9th Cir. 2014) (noting 12 | that credit-as-true rule should not be applied where an “evaluation of the record as 13 | a whole creates serious doubt that a claimant is, in fact, disabled’).

CONCLUSION 16 For the reasons stated above, IT IS ORDERED that judgment shall be 17 | entered REVERSING the decision of the Commissioner and REMANDING this 18 | case for further administrative proceedings consistent with this decision. 19 20 | DATED: May 20, 2020 N,ecuns 6. Scot? 1 KAREN E. SCOTT United States Magistrate Judge 22 23 24 25 26 27 28 15