1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KIMBERLY R.,1 Case No. 2:20-cv-03489-MAA 12 Plaintiff, MEMORANDUM DECISION AND 13 v. ORDER REVERSING DECISION OF THE COMMISSIONER AND 14 REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS 15 ANDREW M. SAUL, Commissioner of Social Security, 16 Defendant. 17 18 19 On April 15, 2020, Plaintiff filed a Complaint seeking review of the Social 20 Security Commissioner’s final decision denying her applications for disability 21 insurance benefits and supplemental security income pursuant to Titles II and XVI 22 of the Social Security Act. This matter is fully briefed and ready for decision. For 23 the reasons discussed below, the Commissioner’s final decision is reversed, and this 24 action is remanded for further administrative proceedings. 25 ///

26 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court 27 Administration and Case Management of the Judicial Conference of the United States. 28 1 PROCEDURAL HISTORY 2 On January 26, 2017, Plaintiff protectively filed applications for disability 3 insurance benefits and supplemental security income, alleging disability beginning 4 on December 1, 2016. (Administrative Record [AR] 15, 182-90.) Plaintiff alleged 5 disability because of “[resistant] scabies condition; psychosis disorder; major 6 depression; acute anxiety; hopelessness; stress disorder; sleep disorder; loss of 7 consciousness/fainting.” (AR 64, 82.) After her applications were denied initially 8 and on reconsideration, Plaintiff requested a hearing before an Administrative Law 9 Judge (“ALJ”). (AR 113.) During a hearing held on April 8, 2019, at which 10 Plaintiff appeared with counsel, the ALJ heard testimony from Plaintiff and a 11 vocational expert. (AR 30-48.) 12 In a decision issued on May 24, 2019, the ALJ denied Plaintiff’s disability 13 claims after making the following findings pursuant to the Commissioner’s five- 14 step evaluation. (AR 15-25.) Plaintiff had not engaged in substantial gainful 15 activity since her alleged disability onset date of December 1, 2016. (AR 17.) She 16 had severe impairments consisting of “obesity; bilateral degenerative joint disease 17 of the knees; depressive disorder; and anxiety disorder.” (Id.) She did not have an 18 impairment or combination of impairments that met or medically equaled the 19 requirements of one of the impairments from the Commissioner’s Listing of 20 Impairments. (AR 18.) She had a residual functional capacity for medium work 21 with further limitations. (AR 20.) She was unable to perform her past relevant 22 work as a Substance Abuse Counselor or Mental Health Technician. (AR 20.) She 23 could perform other work in the national economy, in the occupations of Linen 24 Room Attendant, Counter Supply Worker, and Lamination Assembler. (AR 24.) 25 Thus, the ALJ concluded that Plaintiff was not disabled, as defined by the Social 26 Security Act, from December 1, 2016 through the date of the ALJ’s decision. (AR 27 25.) 28 /// 1 On February 26, 2020, the Appeals Council denied Plaintiff’s request for 2 review. (AR 1-6.) Thus, ALJ’s decision became the final decision of the 3 Commissioner. 4 5 DISPUTED ISSUE 6 The parties raise the following disputed issue: whether the ALJ improperly 7 rejected Plaintiff’s testimony regarding functional limitations. (ECF No. 23, 8 Parties’ Joint Stipulation [“Joint Stip.”] at 2.) 9 10 STANDARD OF REVIEW 11 Under

(g), the Court reviews the Commissioner’s final 12 decision to determine whether the Commissioner’s findings are supported by 13 substantial evidence and whether the proper legal standards were applied. See 14 Treichler v. Commissioner of Social Sec. Admin.,

(9th Cir. 15 2014). Substantial evidence means “more than a mere scintilla” but less than a 16 preponderance. See Richardson v. Perales,

(1971); Lingenfelter 17 v. Astrue,

(9th Cir. 2007). Substantial evidence is “such 18 relevant evidence as a reasonable mind might accept as adequate to support a 19 conclusion.” Richardson,

. The Court must review the record as a 20 whole, weighing both the evidence that supports and the evidence that detracts from 21 the Commissioner’s conclusion. Lingenfelter,

. Where evidence is 22 susceptible of more than one rational interpretation, the Commissioner’s 23 interpretation must be upheld. See Orn v. Astrue,

(9th Cir. 24 2007). 25 /// 26 /// 27 /// 28 /// 1 DISCUSSION 2 A. Legal Standard. 3 An ALJ must make two findings in assessing a claimant’s pain or symptom 4 testimony. SSR 16-3P,

, at *3; Treichler,

. 5 “First, the ALJ must determine whether the claimant has presented objective 6 medical evidence of an underlying impairment which could reasonably be expected 7 to produce the pain or other symptoms alleged.” Treichler,

8 (citation omitted). “Second, if the claimant has produced that evidence, and the ALJ 9 has not determined that the claimant is malingering, the ALJ must provide specific, 10 clear and convincing reasons for rejecting the claimant’s testimony regarding the 11 severity of the claimant’s symptoms” and those reasons must be supported by 12 substantial evidence in the record. Id.; see also Marsh v. Colvin,

, 13 1174 n.2 (9th Cir. 2015). 14 “A finding that a claimant’s testimony is not credible ‘must be sufficiently 15 specific to allow a reviewing court to conclude the adjudicator rejected the 16 claimant’s testimony on permissible grounds and did not arbitrarily discredit a 17 claimant’s testimony regarding pain.’” Brown-Hunter v. Colvin,

, 493 18 (9th Cir. 2015) (quoting Bunnell v. Sullivan,

(9th Cir. 1991) 19 (en banc)). 20 Beginning on March 28, 2016, SSR 16-3P rescinded and superseded the 21 Commissioner’s prior rulings as to how the Commissioner will evaluate a 22 claimant’s statements regarding the intensity, persistence, and limiting effects of 23 symptoms in disability claims. See SSR 16-3P,

, at *1. Because 24 the ALJ’s decision in this case was issued on March 26, 2018, it is governed by 25 SSR 16-3P. See

at *13 and n.27. In pertinent part, SSR 16-3P eliminated the 26 use of the term “credibility” and clarified that the Commissioner’s subjective 27 symptom evaluation “is not an examination of an individual’s character.” SSR 16- 28 3P,

, at *2; see also Trevizo v. Berryhill,

, 678 n.5 1 (9th Cir. 2017). These changes are largely stylistic and are consistent in substance 2 with Ninth Circuit precedent that existed before the effective date of SSR16-3P. 3 See Trevizo,

n.5. 4 5 B. Background. 6 In 2015, while working as a substance abuse counselor, Plaintiff contracted 7 lice and scabies after hugging a homeless couple. (AR 346.) Although her 8 conditions were treated and cured, Plaintiff “continued to complain of feeling bugs 9 crawling under her skin.” (Id.) She took leave from work for approximately one 10 year. (Id.) Plaintiff returned to work in June or July of 2016. (Id.) 11 On December 1, 2016, the alleged disability onset date, Plaintiff sought 12 emergency medical treatment for anxiety. (AR 298.) She reported that her job 13 involved too much work and that she felt overwhelmed. (AR 304.) 14 A few weeks later, in late December 2016, Plaintiff underwent a psychiatric 15 examination. (AR 335-54.) In pertinent part, Plaintiff told the psychiatrist that on a 16 typical day, she “pushes herself to get up and out of bed,” “takes her 13-year-old 17 daughter to school,” comes home to shower and clean her house, and then “watches 18 television for most of the day.” (AR 338-39.) 19 After the incident with the lice and scabies, Plaintiff underwent several 20 therapy sessions. She reported severe anxiety and depression, as well as the belief 21 that she continued to have scabies. (See, e.g., AR 1223, 1229, 1234, 1237, 1243). 22 During some of the sessions, Plaintiff further reported have trouble sleeping, 23 particularly because her father was staying with her after his surgery (AR 486, 24 1202, 1219), but she also commented that she felt better because she was taking 25 care of him (AR 1219). 26 In addition to claiming disability because of her mental condition, Plaintiff 27 claimed disability because of pain in her back and knees and because of obesity. 28 (AR 33.) She was diagnosed with bilateral knee degenerative joint disease (AR 1 1113) and received cortisone injections in both knees (AR 1052, 1090). She was 2 five feet four inches tall and weighed 298 pounds. (AR 1136.) 3 During the administrative hearing, Plaintiff testified about her condition and 4 activities as follows: 5 She still has scabies, and she is unable to cure it. (AR 38.) She was 6 diagnosed with a psychotic disorder, depression, and anxiety. (AR 39.) She also 7 has arthritis in her knees and back pain. (Id.) She takes Gabapentin, Propranolol, 8 Sertraline, Trazadone, Abilify, Atorvastatin, and Amlodipine. (AR 39-40.) Her 9 medication side effects are dizziness, nausea, headaches, and drowsiness. (AR 39.) 10 She and her fifteen-year old daughter share a home with a roommate. (AR 11 35.) The daughter and the roommate complete all of the household chores, while 12 Plaintiff does none of them. (AR 42-43.) Plaintiff is unable to attend her 13 daughter’s activities. (AR 41.) During a typical day, Plaintiff stays in bed “for the 14 most part.” (AR 43.) 15 In addition to testifying at the administrative hearing, Plaintiff completed a 16 written report describing her level of functioning. (AR 235-43.) In pertinent part, 17 Plaintiff wrote that she spends most of her days sterilizing her living space. (AR 18 236.) She occasionally takes her daughter to soccer practice, but she otherwise 19 does not go anywhere on a regular basis. (AR 239.) Her doctors told her she has a 20 “delusional parasitic disorder,” but she believes she still has scabies. (AR 242.) 21 22 C. Analysis. 23 The ALJ first found that Plaintiff’s noted impairments could reasonably be 24 expected to cause a number of symptoms Plaintiff has alleged. (AR 21.) However, 25 the ALJ next found that Plaintiff’s “statements concerning the intensity, persistence 26 and limiting effects of her symptoms are not entirely supported by the available 27 evidence as a whole.” (AR 22.) Specifically, the ALJ made the following findings: 28 /// 1 As previously discussed, she does not exhibit signs or symptoms of 2 psychosis even though she reports tactile hallucinations associated 3 with a delusional belief system; and she has not required inpatient 4 treatment, voiced suicidal thoughts or acted out in bizarre or 5 destructive ways. In fact, while stressed by her previous work setting 6 and dynamics, [Plaintiff] has taken care of her father, continued to care 7 for her daughter, maintained a relationship with her significant other 8 and pursued disability [AR 338-39, 1219, 1247]. 9 (AR 22.) 10 The Court reviews each reason in turn. 11 12 1. No signs or symptoms of psychosis. 13 The ALJ found that Plaintiff “does not exhibit signs or symptoms of 14 psychosis even though she reports tactile hallucinations associated with a delusional 15 belief system.” (AR 22.) 16 An ALJ may reject a claimant’s subjective symptoms testimony, in part, 17 because of a lack of corroboration by objective medical evidence. See Rollins v. 18 Massanari,

(9th Cir. 2001) (“While subjective pain testimony 19 cannot be rejected on the sole ground that it is not fully corroborated by objective 20 medical evidence, the medical evidence is still a relevant factor in determining the 21 severity of the claimant’s pain and its disabling effects.”); Burch v. Barnhart, 400

, 681 (9th Cir. 2005) (“Although lack of medical evidence cannot form the 23 sole basis for discounting pain testimony, it is a factor that the ALJ can consider in 24 his credibility analysis.”). 25 Here, however, the record showed that Plaintiff did exhibit signs or 26 symptoms of psychosis. The objective medical evidence showed a psychiatric 27 diagnosis of a psychotic disorder. (AR 486, 490, 1195, 1214.) Moreover, this 28 diagnosis was evidenced by signs and symptoms that included tactile 1 hallucinations, auditory hallucinations, visual hallucinations, depression, anxiety, 2 and insomnia. (AR 1197, 1199, 1223.) Nothing in the record suggests that the 3 physicians who reported these signs and symptoms felt they were not genuine. See 4 Ryan v. Commissioner of Social Sec.,

(9th Cir. 2008) (“There 5 is nothing in the record to suggest that [the physician] disbelieved [claimant’s] 6 description of her symptoms, or that [the physician] relied on those descriptions 7 more heavily than his own clinical observations[.]”) (citing Regennitter v. Comm’r 8 Soc. Sec. Admin.,

(9th Cir. 1999)). Thus, the record fails to 9 support the reasoning here that Plaintiff “does not exhibit signs or symptoms of 10 psychosis even though she reports tactile hallucinations associated with a delusional 11 belief system.” See Diedrich v. Berryhill,

(9th Cir. 2017) (ALJ’s 12 comment that nobody observed the claimant’s mental symptoms was not clear and 13 convincing where the record did not support that characterization). 14 The Commissioner’s argument does not call for a different result. The 15 Commissioner cites evidence showing that, at other times, Plaintiff exhibited no 16 signs or symptoms of psychosis. (Joint Stip. at 11 [citing AR 347, 484, 1203, 1207, 17 1211].) But this cited evidence shows only that Plaintiff sometimes did not exhibit 18 signs or symptoms, while evidence for other times shows that she did. The 19 evidence does not show, as the ALJ stated here, that Plaintiff “does not exhibit 20 signs or symptoms of psychosis.” The Court must review the reason as it was 21 stated. See Connett v. Barnhart,

(9th Cir. 2003) (“We are 22 constrained to review the reasons the ALJ asserts.”). The stated reason was not a 23 clear and convincing reason to reject Plaintiff’s subjective symptom testimony. 24 25 2. No inpatient treatment, suicidal thoughts, or acts of a 26 bizarre or destructive nature. 27 The ALJ found that Plaintiff “has not required inpatient treatment, voiced 28 suicidal thoughts or acted out in bizarre or destructive ways.” (AR 22.) 1 “[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 2 testimony regarding severity of an impairment.” Parra v. Astrue,

, 3 751 (9th Cir. 2007) (quoting Johnson v. Shalala,

(9th Cir. 4 1995)). “Any evaluation of the aggressiveness of a treatment regimen must take 5 into account the condition being treated.” Revels v. Berryhill,

, 667 6 (9th Cir. 2017). Moreover, an ALJ reasonably may conclude that “the medical 7 record was inconsistent with the severity of the limitations [the claimant] described 8 in [her] testimony.” See Ahearn v. Saul,

(9th Cir. 2021); 9 see also Coleman v. Saul,

(9th Cir. 2020) (an ALJ reasonably 10 may conclude that a claimant’s subjective complaints are exaggerated). 11 Here, Plaintiff did not testify that she required inpatient treatment, voiced 12 suicidal thoughts, or acted out in bizarre or destructive ways. Thus, the reasoning 13 that Plaintiff “has not required inpatient treatment, voiced suicidal thoughts or acted 14 out in bizarre or destructive ways” (AR 22) does not reveal an inconsistency 15 between Plaintiff’s testimony and the medical record. 16 Moreover, it is not clear from the record that inpatient treatment, suicidal 17 thoughts, or acting out in bizarre or destructive ways would reasonably be expected 18 for a claimant, such as Plaintiff, alleging a psychotic disorder as a basis for 19 disability. With respect to the absence of inpatient treatment, the ALJ did not 20 explain why inpatient treatment, rather than the psychiatric medications Plaintiff 21 was taking (AR 39-40), would reasonably have been expected here. See Lambert v. 22 Saul,

(9th Cir. 2020) (an ALJ’s “non-specific conclusions that 23 [the claimant’s] testimony was inconsistent with her medical treatment” was not 24 clear and convincing); see also Revels,

(ALJ’s finding of 25 conservative treatment was erroneous in part where he did not explain “why he 26 deemed this treatment ‘conservative’”). 27 With respect to the absence of evidence that Petitioner voiced suicidal 28 thoughts or acted out in bizarre or destructive ways, the Commissioner does not 1 require that claimants display such extreme behavior in order to be found disabled. 2 See Vertigan v. Halter,

(9th Cir. 2001) (“One does not need to 3 be ‘utterly incapacitated’ in order to be disabled.”) (citing Fair v. Bowen,

(9th Cir. 1989)). 5 Thus, this reason was not a clear and convincing reason to reject Plaintiff’s 6 subjective symptom testimony. 7 8 3. Care for father and daughter. 9 The ALJ found that, “while stressed by her previous work setting and 10 dynamics, [Plaintiff] has taken care of her father and continued to care for her 11 daughter.” (AR 22.) 12 In assessing a claimant’s testimony about her symptoms, an ALJ may 13 consider “whether the claimant engages in daily activities inconsistent with the 14 alleged symptoms.” Lingenfelter v. Astrue,

(9th Cir. 2007). 15 Such activities may include the care of family members. See Rollins,

857 (holding that an ALJ’s adverse credibility determination was supported by 17 substantial evidence where the claimant’s daily activities included caring for her 18 children’s needs and leaving the house daily for appointments and shopping). 19 The record does not clearly demonstrate that Plaintiff’s care for her father 20 and daughter were inconsistent with Plaintiff’s alleged symptoms. First, with 21 respect to Plaintiff’s father, the only relevant evidence is that he stayed with her 22 following his surgery, which led Plaintiff to comment, “I feel better b/c I take care 23 of my father.” (AR 1219.) But Plaintiff never specified for the record what taking 24 care of her father involved. Thus, the Court cannot properly review whether this 25 vague evidence was inconsistent with Plaintiff’s testimony about her symptoms. 26 See Burrell v. Colvin,

(“But the ALJ did not elaborate on 27 which daily activities conflicted with which part of Claimant’s testimony.”) 28 (emphasis in original). 1 Second, with respect to Plaintiff’s daughter, the record showed that 2 Plaintiff’s caretaking was minimal and decreasing. In late December 2016, a few 3 weeks after Plaintiff stopped working on December 1, 2016, Plaintiff told a 4 psychiatrist that she takes her daughter to school on a typical day, to soccer practice 5 two times per week, and to games on Saturdays. (AR 338-39.) In March 2017, 6 Plaintiff wrote in her function report that she makes sure her daughter eats and 7 takes her to soccer practice (AR 236), but the dropping off at soccer practice 8 occurred once per week (AR 239). In April 2019, Plaintiff testified at the 9 administrative hearing that she was unable to attend her daughter’s activities. (AR 10 41.) This evidence of Plaintiff’s limited childcare activities is not clearly 11 inconsistent with Plaintiff’s testimony that she spends most of the day lying in bed. 12 See Garrison v. Colvin,

(9th Cir. 2014) (evidence of claimant’s 13 limited childcare activities was not inconsistent with her testimony that she spent 14 most of the day lying in bed). 15 Thus, this reason was not a clear and convincing reason to reject Plaintiff’s 16 subjective symptom testimony. 17 18 4. Relationship with significant other and pursuit of disability. 19 The ALJ found that Plaintiff “maintained a relationship with her significant 20 other and pursued disability.” (AR 22.) 21 This reason is unsupported by the record or has no apparent relevance. The 22 record does not show that Plaintiff had a relationship with a significant other since 23 her alleged disability onset date of December 1, 2016. Moreover, the fact that 24 Plaintiff pursued disability, without more, has no apparent relevance to the question 25 of whether her subjective symptom testimony should be found credible. Thus, this 26 was not a clear and convincing reason to reject Plaintiff’s subjective symptom 27 testimony. 28 /// 1 D. Conclusion. 2 Clear and convincing reasons based on substantial evidence were not 3 provided to discount Plaintiff’s subjective symptom testimony. Although the 4 Commissioner posits another reason to discount Plaintiff’s testimony, premised on 5 Plaintiff’s positive response to treatment (Joint Stip. at 11-12), the ALJ did not state 6 this reason to reject Plaintiff’s subjective symptom testimony. Thus, the Court may 7 not review this argument. See Connett,

. In sum, reversal is 8 warranted. 9 10 II. Remand for Further Administrative Proceedings. 11 Ninth Circuit case law “precludes a district court from remanding a case for 12 an award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 13

(9th Cir. 2015) (citations omitted). “The district court must first 14 determine that the ALJ made a legal error, such as failing to provide legally 15 sufficient reasons for rejecting evidence.”

“If the court finds such an error, it 16 must next review the record as a whole and determine whether it is fully developed, 17 is free from conflicts and ambiguities, and all essential factual issues have been 18 resolved.”

(citation and internal quotation marks omitted). 19 Here, the record is not free from conflicts and ambiguities, and all essential 20 factual issues have not been resolved. For example, as the Commissioner points 21 out, the record contains some evidence of Plaintiff’s positive response to treatment 22 (Joint Stip. at 11-12), which the ALJ did not expressly consider. Given this conflict 23 and ambiguity, the Court declines Plaintiff’s request to credit her testimony as true. 24 See Leon v. Berryhill,

(9th Cir. 2017) (“A district court cannot 25 proceed directly to credit a claimant’s testimony as true and then look to the record 26 to determine whether there are any issues outstanding, as ‘this reverses the required 27 order of analysis.’”) (quoting Dominguez,

); Treichler,

1106 (“[A] reviewing court is not required to credit claimants’ allegations regarding 1 || the extent of their impairments as true merely because the ALJ made a legal error in 2 || discrediting their testimony.”). 3 Rather, the record raises factual conflicts about Plaintiff’s level of 4 || functioning that “should be resolved through further proceedings on an open record 5 || before a proper disability determination can be made by the ALJ in the first 6 || instance.” See Brown-Hunter,

; see also Treichler,

|| 1101 (stating that remand for an award of benefits is inappropriate where “there is 8 || conflicting evidence, and not all essential factual issues have been resolved”) 9 || (citation omitted); Burrell,

(remand is appropriate where the 10 || record creates doubt as to whether claimant is disabled); Strauss v. Commissioner 11 || of the Social Sec. Admin.,

(9th Cir. 2011) (same where the 12 || existing record does not clearly demonstrate that the claimant is disabled within the 13 || meaning of the Social Security Act). 14 Therefore, based on its review and consideration of the entire record, the 15 || Court has concluded on balance that a remand for further administrative 16 || proceedings pursuant to sentence four of

(g) is warranted here. It is 17 || not the Court’s intent to limit the scope of the remand. 18 19 ORDER 20 It is ordered that Judgment be entered reversing the final decision of the 21 |} Commissioner of Social Security and remanding this matter for further 22 || administrative proceedings. 23 24 |} DATED: April 9, 2021 25 wet 26 MARIA A. AUDERO 57 UNITED STATES MAGISTRATE JUDGE

28 13