1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 KARL M., 7 Case No. 20-cv-06642-DMR Plaintiff, 8 v. ORDER ON CROSS MOTIONS FOR 9 SUMMARY JUDGMENT KILOLO KIJAKAZI, 10 Re: Dkt. Nos. 25, 26 Defendant. 11

12 Plaintiff Karl M. moves for summary judgment to reverse the Commissioner of the Social 13 Security Administration’s (the “Commissioner’s”) final administrative decision, which found 14 Plaintiff not disabled and therefore denied his application for benefits under Title II of the Social 15 Security Act,

et seq. [Docket No. 25.] The Commissioner cross-moves to affirm. 16 [Docket No. 26.] For the reasons stated below, the court grants Plaintiff’s motion in part, denies 17 the Commissioner’s motion, and remands this matter for further proceedings. 18 I. PROCEDURAL HISTORY 19 Plaintiff filed an application for Social Security Disability Insurance (“SSDI”) benefits on 20 May 17, 2018, alleging disability beginning November 15, 2017. Administrative Record (“A.R.”) 21 162-68. The application was initially denied on August 29, 2018 and again on reconsideration on 22 October 26, 2018. A.R. 88-93, 95-100. An Administrative Law Judge (“ALJ”) held a hearing on 23 June 12, 2019 and issued an unfavorable decision on September 25, 2019. A.R. 10-25. The ALJ 24 determined that Plaintiff has degenerative joint disease of the shoulders with symptoms of 25 impingement and that it is a severe impairment. A.R. 15. The ALJ also found that Plaintiff 26 retains the following residual functional capacity (“RFC”):

27 [T]o perform medium work as defined in 20 CFR [§] 404.1567(c) and can occasionally push-pull bilaterally using the upper extremities.

. Relying on the opinion of a vocational expert (“V.E.”) who testified that an individual 2 with such an RFC could perform other jobs existing in the economy, including kitchen helper and 3 hand packager, the ALJ concluded that Plaintiff is not disabled. A.R. 20-21. 4 After the Appeals Council denied review, Plaintiff sought review in this court pursuant to 5

(g). 6 II. ISSUES FOR REVIEW 7 1. Whether the ALJ erred in assessing Plaintiff’s credibility; and 8 2. Whether the ALJ’s step-five finding is supported by substantial evidence. 9 III. STANDARD OF REVIEW 10 Pursuant to

(g), this court has the authority to review a decision by the 11 Commissioner denying a claimant disability benefits. “This court may set aside the 12 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal 13 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180

, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 15 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 16 Richardson v. Perales,

(1971). It is more than a mere scintilla, but less than a 17 preponderance. See Saelee v. Chater,

(9th Cir. 1996) (internal citation omitted). 18 When performing this analysis, the court must “consider the entire record as a whole and may not 19 affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. Sec. 20 Admin.,

(9th Cir. 2006) (citation and quotation marks omitted). 21 If the evidence reasonably could support two conclusions, the court “may not substitute its 22 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112

(9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s 24 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 25 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue,

(9th Cir. 2008) (citations and internal quotation marks omitted). 27 IV. DISCUSSION 1 The court first addresses Plaintiff’s argument that the ALJ erred in determining that he was 2 not fully credible. 3 A. Legal Standard 4 In general, credibility determinations are the province of the ALJ. “It is the ALJ’s role to 5 resolve evidentiary conflicts. If there is more than one rational interpretation of the evidence, the 6 ALJ’s conclusion must be upheld.” Allen v. Sec’y of Health & Human Servs.,

, 7 1473 (9th Cir. 1984) (citations omitted). An ALJ is not “required to believe every allegation of 8 disabling pain” or other nonexertional impairment. Fair v. Bowen,

(9th 9 Cir. 1989) (citing

(d)(5)(A)). However, if an ALJ discredits a claimant’s 10 subjective symptom testimony, the ALJ must articulate specific reasons for doing so, Greger v. 11 Barnhart,

(9th Cir. 2006), and the ALJ’s credibility determination “must be 12 supported by specific, cogent reasons.” Reddick v. Chater,

(9th Cir. 1998) 13 (citation omitted). In evaluating a claimant’s credibility, the ALJ cannot rely on general findings, 14 but “must specifically identify what testimony is credible and what evidence undermines the 15 claimant’s complaints.” Greger,

(quotations omitted); see also Thomas v. 16 Barnhart,

(9th Cir. 2002) (ALJ must articulate reasons that are “sufficiently 17 specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s 18 testimony.”). The ALJ may consider “ordinary techniques of credibility evaluation,” including the 19 claimant’s reputation for truthfulness and inconsistencies in testimony, and may also consider a 20 claimant’s daily activities, and “unexplained or inadequately explained failure to seek treatment or 21 to follow a prescribed course of treatment.” Smolen v. Chater,

(9th Cir. 22 1996). 23 The determination of whether or not to accept a claimant’s testimony regarding subjective 24 symptoms requires a two-step analysis.

, 416.929; Smolen,

25 (citations omitted). First, the ALJ must determine whether or not there is a medically 26 determinable impairment that reasonably could be expected to cause the claimant’s symptoms. 20

(b), 416.929(b); Smolen,

. Once a claimant produces 1 medical evidence of an underlying impairment, the ALJ may not discredit the claimant’s 2 testimony as to the severity of symptoms “based solely on a lack of objective medical evidence to 3 fully corroborate the alleged severity of” the symptoms. Bunnell v. Sullivan,

, 345 4 (9th Cir. 1991) (en banc) (citation omitted). Absent affirmative evidence that the claimant is 5 malingering, the ALJ must provide “specific, clear and convincing” reasons for rejecting the 6 claimant’s testimony. Burrell v. Colvin,

(9th Cir. 2014) (rejecting 7 Commissioner’s challenge to “specific, clear, and convincing” legal standard for rejecting 8 claimant’s testimony in the absence of malingering). 9 B. Analysis 10 Plaintiff testified that he worked as a school custodian for 36 years until he retired in 11 November 2017. During his employment, he was placed on light duty in connection with a 12 workers’ compensation claim. Plaintiff’s doctor eventually returned him to full duty, and he 13 testified that he was able to “last on full duty” for three years. He testified that after three years of 14 regular duty, he woke up one morning and was unable to move his shoulders or his arms and 15 decided to retire. A.R. 40-41, 46. As part of his job duties, Plaintiff had been responsible for 16 lifting garbage cans that weighed about 30 pounds, five times per day every day. Plaintiff testified 17 that by the time he retired, he could no longer lift the cans and had numbness from his shoulders to 18 his fingers on both sides. A.R. 32-34. He was also unable to use a weed eater as he could not 19 “pull the string” or hold it for more than two-three minutes without dropping it. Id. at 34-35. 20 Plaintiff testified that if he tries to lift groceries, his weight limit is one gallon of milk. If 21 he tries to hold anything heavier than that, he drops it. A.R. 35-36. Plaintiff testified that he “can 22 lift about five pounds now” and “can’t hold nothing too long.” A.R. 43. While driving or parking, 23 he experiences pain from his neck down to his right shoulder and testified that his shoulders 24 “pop,” limiting his mobility. A.R. 36-37. Plaintiff testified that he is not taking any pain 25 medications because “workers’ comp cut [him] off” after he settled his claim. A.R. 38. 26 The ALJ found that Plaintiff’s “medically determinable impairments could reasonably be 27 expected to cause the alleged symptoms; however, [Plaintiff’s] statements concerning the 1 medical evidence and other evidence in the record for the reasons explained in this decision.”

. The ALJ did not conclude that Plaintiff was a malingerer. Accordingly, she was 3 required to provide “specific, clear and convincing” reasons for rejecting his testimony. Burrell, 4

. The sole reason the ALJ gave for discounting his testimony, however, was the 5 statement set forth above that Plaintiff’s testimony was “not entirely consistent with the medical 6 evidence and other evidence in the record for the reasons explained in this decision.” See A.R. 18. 7 The decision contains the ALJ’s discussion of the medical evidence, which she noted was 8 “incredibly sparse at significantly less than 100 pages.”1 However, the ALJ did not connect any 9 specific testimony by Plaintiff to the evidence or identify which testimony by Plaintiff she found 10 not credible and why. This is insufficient, because an ALJ may not “reject a claimant’s subjective 11 complaints based solely on a lack of objective medical evidence to fully corroborate the alleged 12 severity of pain” and must “specifically make findings” supporting the conclusion that a 13 claimant’s allegations of severity are not credible. Bunnell,

. 14 The Commissioner does not dispute the applicability of the “clear and convincing” 15 standard of review and acknowledges that “lack of medical evidence cannot form the sole basis for 16 discounting testimony.” Opp’n 7. Instead, she highlights “objective medical evidence” that she 17 claims supports the ALJ’s credibility determination.

The Commissioner also offers other 18 reasons why Plaintiff was not credible, including a purported “lack of consistent treatment.”

at 19 7-8. Ninth Circuit authority prevents the court from considering these reasons because none of 20 them were identified by the ALJ as the basis for rejecting Plaintiff testimony. “[T]he credibility 21 determination is exclusively the ALJ’s to make, and ours only to review. As we have long held, 22 [w]e are constrained to review the reasons the ALJ asserts.” Brown-Hunter v. Colvin,

487, 494 (9th Cir. 2015) (cleaned up) (quoting Connett v. Barnhart,

(9th Cir. 24 2003)). In this case, where the ALJ “failed to identify the testimony she found not credible” and 25 thus failed to “link that testimony to the particular parts of the record supporting her non- 26 credibility determination,” she committed legal error in discounting Plaintiff’s credibility. See 27 1 Brown-Hunter, 806 F.3d at 494. 2 The court remands this case for the ALJ to reassess Plaintiffs testimony. Because the 3 || ALJ’s reassessment of Plaintiffs testimony may impact her determination of his RFC and her 4 || finding at step five that Plaintiff can perform other work, including kitchen helper and hand 5 || packager, the court does not reach Plaintiff's arguments that the medical evidence does not 6 || support the ALJ’s RFC finding and that the VE’s testimony conflicted with the Dictionary of 7 Occupational Titles. See Pl.’s Mot. 7-12. 8 || CONCLUSION 9 For the foregoing reasons, Plaintiff's motion for summary judgment is granted in part, as 10 || the court did not reach all of the arguments in his motion. Defendant’s motion for summary 11 || judgment is denied. This matter is remanded for proceedings consistent with this opinion. 12 Sse DISTRIGS 2B IT IS SO ORDERED. eS Re) Pp || Dated: March 24, 2022 by □□□ ’ DE SlCr 1s so OR 15 < aM. Ryu □ — Uni dpe 16 □ 1 : zs Zponna M, Ryo uss □ a nS Z 18 oN OY & iy oS 19 DISTRICS- 20 21 22 23 24 25 26 27 28