1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 JACOB I. V.1, Case No. 22-cv-05522-RMI

9 Plaintiff, ORDER RE: PLAINTIFF'S MOTION 10 v. FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR 11 KILOLO KIJAKAZI, REMAND 12 Defendant. Re: Dkt. Nos. 15, 24

13 14 Plaintiff seeks judicial review of an administrative law judge (“ALJ”) decision denying his 15 application for disability insurance benefits under Titles II and XVI of the Social Security Act. See 16 Admin. Rec. at 1.2 The Appeals Council of the Social Security Administration (“SSA”) declined 17 to review the ALJ’s decision. Id. As such, the ALJ’s decision is a “final decision” of the 18 Commissioner of Social Security, appropriately reviewable by this court. See

(g), 19 1383(c)(3). Both parties have consented to the jurisdiction of a magistrate judge. (Dkts. 8, 10). 20 Plaintiff has moved for summary judgment (dkt. 15) and Defendant has moved for remand for 21 further proceedings (dkt. 24). For the reasons stated below, Plaintiff’s Motion for Summary 22 Judgment is granted in part and denied in part, and Defendant’s Motion for Remand is granted. 23 BACKGROUND 24 In February of 2012, Plaintiff suffered injuries to his back, knee, and shoulder in a vehicle 25

26 1 Pursuant to the recommendation of the Committee on Court Administration and Case Management of the 27 Judicial Conference of the United States, Plaintiff’s name is partially redacted. 1 accident at work. AR at 74, 344, 363-64, 379. Plaintiff, who was a truck driver at the time, crashed 2 into a hill after a brake failure and his truck flipped upside down, resulting in Plaintiff’s injuries. 3

. Since then, Plaintiff has experienced chronic pain in his back, hip, knee, and shoulder, 4 which has limited his ability to work, enjoy his hobbies, take care of his children, and participate 5 in daily life.

; 86-90. Plaintiff’s chronic pain has led to symptoms of anxiety and 6 depression. See e.g.,

. In 2018, Plaintiff presented at the 7 emergency room with shortness of breath and was found to be having a panic attack.

. 8 Plaintiff reported to his physician that he had similar panic attacks one to two times a year.

at 9 537. 10 In 2013 Plaintiff had surgery on his right knee and underwent several periods of physical 11 therapy, though his ability to complete physical therapy was limited by his back pain. See

at 12 328-35, 347, 351-54, 363-64, 368-69. To treat his back pain, Plaintiff had a “lumbar 13 radiofrequency ablation procedure” in 2013, though the procedure was “without benefit.” See

14 at 368. Over the past ten years, Plaintiff has taken various medications to manage his pain, 15 depression, and anxiety. See e.g.,

. These include methadone, 16 trazodone, and over-the-counter medications like Tylenol and Motrin.

Plaintiff uses a cane to 17 ambulate, has difficulty sitting and standing for sustained periods, and has limited range of motion 18 in his shoulder. See e.g.,

. Plaintiff’s record indicates that he continues to 19 suffer from chronic pain, anxiety, and depression, though there appear to be gaps in his treatment 20 of these impairments. See

(summarizing Plaintiff’s medical records for the period 21 from 2015-21 and noting gaps in the record from September 2015 to August 2017, January 2018 22 to March 2019, and May 2019 to October 2021). Plaintiff alleges that these gaps are due to a lack 23 of insurance coverage, rather than decreased pain or symptoms.

. 24 LEGAL STANDARDS 25 The Social Security Act limits judicial review of the Commissioner’s decisions to final 26 decisions made after a hearing.

(g). The Commissioner’s findings “as to any fact, 27 if supported by substantial evidence, shall be conclusive.”

A district court has limited scope of 1 it is based on legal error. Flaten v. Sec’y of Health & Human Servs.,

(9th Cir. 2 1995). The phrase “substantial evidence” appears throughout administrative law and directs courts 3 in their review of factual findings at the agency level. See Biestek v. Berryhill,

, 4 1154 (2019). Substantial evidence is defined as “such relevant evidence as a reasonable mind 5 might accept as adequate to support a conclusion.”

at 1154 (quoting Consol. Edison Co. v.

U.S. 197, 229 (1938)); see also Sandgathe v. Chater,

(9th Cir. 7 1997). “In determining whether the Commissioner’s findings are supported by substantial 8 evidence,” a district court must review the administrative record as a whole, considering “both the 9 evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” 10 Reddick v. Chater,

(9th Cir. 1998). The Commissioner’s conclusion is upheld 11 where evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400

(9th Cir. 2005). 13 DISCUSSION 14 In assessing a claim for benefits, an ALJ must undergo a five-step sequential evaluation 15 process, considering all the evidence in the claimant’s case record, to determine whether the 16 claimant is disabled. See generally

Each step of the analysis is dependent 17 upon the last.

at § 404.1520(4). In the instant case, the Commissioner concedes that the ALJ’s 18 decision is not based on substantial evidence because the ALJ erred at step three, in the 19

20 3 First, the ALJ must determine whether the claimant has engaged in “substantial gainful activity” during 21 the relevant period.

(a)(4)(i). If so, the claimant is not disabled.

At step two, the ALJ decides whether the claimant’s impairment (or combination of impairments) is “severe,” or 22 significantly limits the claimant’s “physical or mental ability to do basic work activities.”

at §§ 404.1540(a)(4)(ii), 404.1522(a). If no severe impairment is found, the claimant is not disabled. Id. at § 23 404.1520(c). Step three requires the ALJ to consider whether the claimant has an impairment or combination of impairments that meet or equal an impairment in the “Listing of Impairments.” See id. at § 24 404.1520(a)(4)(iii), Pt. 404 Subpt. P, App. 1. If so, the claimant is conclusively presumed to be disabled. See id. at § 404.1520(d). If a claimant does not meet or equal a listing, then the ALJ must formulate the 25 claimant’s residual function capacity (“RFC”), which is defined as the most a person can still do despite the limitations associated with their impairment. See id. at § 404.1545(a)(1). Following the formulation of the 26 RFC, the ALJ must determine—at step four—whether the claimant can perform his past relevant work. Id. at § 404.1520(4)(iv). If the ALJ determines that the claimant can perform his past relevant work, then the 27 claimant is not disabled. Id. at § 404.1520(f). Otherwise, at step five, the ALJ must show that the claimant can make an adjustment to other work, in order to make a finding of non-disability. See id. at 1 formulation of Plaintiff’s functional residual capacity (“RFC”). Def. Mot. (Dkt. 22) at 2-3. As the 2 Commissioner notes, the ALJ found that Plaintiff “would need the ability to alternate between 3 sitting or standing as needed so long as not off task or need to leave the workstation.” AR at 589- 4 90; see also Def.’s Mot. (Dkt. 24) at 3. However, the ALJ failed to explain the basis for this 5 limitation, and it is not consistent with the limitations articulated by the medical sources in the 6 record. Id. This constitutes legal error. ALJs are required to “include a narrative discussion 7 describing how the evidence supports each conclusion [in the RFC], citing specific medical facts 8 (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Social 9 Security Ruling (“SSR”) 96-8, available at

at *7. Further, this error is not 10 harmless, for “error in formulating Plaintiff’s RFC renders all subsequent steps of the sequential 11 evaluation flawed and unsupported by substantial evidence.” Def.’s Mot. (Dkt. 24) at 3; see also 12 Stout v. Comm’r Soc. Sec.,

(9th Cir. 2006) (explaining that an error is 13 harmless only if it is not prejudicial to the claimant or is otherwise inconsequential to the ALJ's 14 ultimate non-disability determination). Because the court finds that the ALJ’s step three error is 15 grounds for remand, Plaintiff’s argument that the ALJ erred at step five is moot. See

404.1520(4); cf. Hiler v. Astrue,

(9th Cir. 2012) (“Because we remand the 17 case to the ALJ for the reasons stated, we decline to reach [Plaintiff’s] alternative ground for 18 remand.”), and Steven M. v. Saul, No. 19-cv-06991-RMI,

, at *5 (N.D. Cal

, 2021) (collecting cases). 20 The only remaining issue is the nature of remand. Plaintiff requests that the court remand 21 for the immediate calculation of benefits; the Commissioner requests a remand for further 22 administrative proceedings. See generally (Dkts. 15, 22). When an ALJ “denies benefits and the 23 court finds legal error,” remand to the agency for further proceedings is generally the appropriate 24 remedy. Leon v. Berryhill,

(9th Cir. 2017), as amended (Jan. 25, 2018) 25 (citing Treichler v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2014)). Although the 26 court has discretion to grant a “direct award of benefits when certain conditions are met” an 27 “automatic award of benefits … is a rare and prophylactic exception to the well-established 1 engage in a three-part analysis known as the “credit-as-true” rule.

(citing Garrison v. Colvin, 2

(9th Cir. 2014). The first step of the credit-as-true analysis is to determine 3 “whether the ALJ failed to provide legally sufficient reasons for rejecting evidence.”

Next, the 4 court considers “whether there are outstanding issues that must be resolved before a disability 5 determination can be made, and whether further administrative proceedings would be useful.”

6 (citing Treichler,

, and Moisa v. Barnhart,

(9th Cir. 2004)) 7 (internal quotations omitted). If there are no outstanding issues and further proceedings would be 8 futile, the court credits the improperly rejected evidence as true and decides, considering the whole 9 record, whether there is any “doubt as to disability.” Id.; see also Garrison,

-23 10 (9th Cir. 2014). 11 Here, the Commissioner concedes that the ALJ erred in the formulation of Plaintiff’s RFC. 12 Thus, the first condition of the credit-as-true test is satisfied. As to the second and third conditions 13 of the credit-as-true test, further proceedings are required to reevaluate Plaintiff’s RFC. There 14 remains ambiguity in the record concerning Plaintiff’s tolerance of standing and sitting, and the 15 appropriate limitation to accommodate Plaintiffs knee, back, and shoulder conditions. See AR at 16 77-78, 84, 119, 134, 481, 507, 581 (medical and lay opinions regarding how long Plaintiff can sit, 17 stand, and walk in an eight-hour workday with estimates ranging from 10-15 minutes to two, four, 18 and six hours, as well as differing opinions as to whether Plaintiff requires the use of a cane). 19 Additionally, evidence in the record casts some doubt as to the extent of Plaintiff’s disability. See 20 e.g., AR at 390 (physician’s report stating that Plaintiff “presents himself as much more disabled, 21 but based on a purely musculoskeletal basis, I believe he is capable of light to medium work.”); 22 AR at 583-85 (summary of Plaintiff’s medical history, noting significant gaps in treatment lasting, 23 in one instance, nearly two years). Thus, the second and third conditions of the credit-as-true test 24 are not satisfied. Accordingly, the court REMANDS for further administrative proceedings. On 25 remand, the ALJ is ordered to reevaluate Plaintiff’s RFC and accompany each limitation with a 26 narrative discussion describing its support in the record. The ALJ is further ORDERED to 27 consider the issues raised in Plaintiff’s briefing as to the VE testimony and to address them as 1 CONCLUSION 2 For the reasons stated above, Plaintiff's Motion for Summary Judgment is GRANTED in 3 || part and DENIED in part and Defendant’s Motion for Remand is GRANTED. Accordingly, the 4 || court REMANDS for further proceedings consistent with this order. A separate judgment shall 5 || issue. 6 IT IS SO ORDERED. 7 Dated: March 12, 2024 8 9 ROBERT M. ILLMAN 10 United States Magistrate Judge 11 a 12

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