Opinion
23-cv-420-KSC
10-20-2023
MODESTA L., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
ORDER REVIEWING FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
Karen S. Crawford United States Magistrate Judge
Plaintiff filed this action challenging the final decision of the Commissioner of Social Security denying plaintiff's claim for benefits. Doc. No. 1. This Court directed the parties to explore informal resolution of the matter through the meet-and-confer process, but the parties were unable to resolve the case on their own. Doc. Nos. 10, 11. Having independently reviewed the parties' briefing and the Administrative Record (“AR”), the Court VACATES the decision of the Commissioner in this matter and REMANDS for further proceedings.
I. BACKGROUND
Plaintiff, represented by counsel, appeared before an Administrative Law Judge (“ALJ”) for de novo review of the Social Security Commissioner's decision to deny plaintiff's claim for benefits. See generally AR 13-34. Plaintiff's attorney and the ALJ both examined plaintiff at the hearing, and the ALJ received testimony from a vocational expert. See id. After reviewing the documentary evidence in the record and hearing the witnesses' testimony, the ALJ ultimately concluded plaintiff was not disabled. AR 28.
All citations to “AR” are to the Administrative Record in this matter [Doc. No. 11], and are paginated accordingly. Any other citations to the Court's docket will reflect pagination assigned by the Court's CM/ECF case management system.
The ALJ's decision followed the five steps prescribed by applicable regulations under which the ALJ must sequentially determine (1) if the claimant is engaged in substantial gainful employment; (2) whether the claimant suffers from a “severe” impairment; (3) if any impairment meets or is medically equal to one of the impairments identified in the regulatory Listing of Impairments; (4) the claimant's residual functional capacity (“RFC”) and whether the claimant could perform any past relevant work; and (5) whether a claimant can make an adjustment to other work based on his or her RFC. See 20 C.F.R. § 404.1250(a)(4); AR 20-21. The ALJ's evaluation ends if at any individual step the ALJ finds the claimant is or is not disabled. See 20 C.F.R. § 404.1250(a)(4).
The ALJ made a threshold finding plaintiff met the insured status requirements through December 31, 2025. AR 21. At step one, the ALJ found plaintiff had not engaged in any substantial gainful activity between the alleged onset of disability and the hearing. Id. At step two, the ALJ found plaintiff had three severe impairments: “osteoarthritis of bilateral knees, cirrhosis of the liver secondary to nonalcohol steatohepatitis, [and] morbid obesity.” Id. The ALJ noted a host of non-severe physical and mental impairments. AR 2123. At step three, the ALJ found none of plaintiff's impairments, alone or in combination, met or exceeded the listings of 20 CFR Part 404, Subpart P, Appendix 1. AR 23.
At step four, the ALJ found plaintiff “had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)” except plaintiff could only “occasionally climb ramps or stairs” and “kneel, crouch, or crawl,” but could “never climb ladders, ropes, or scaffolds.” AR 24. The ALJ concluded plaintiff could perform past work as a sales person or house cleaner. AR 28. Accordingly, the ALJ found plaintiff was not disabled from the alleged date of onset and the date of the ALJ's decision. Id. The Commissoner's decision to deny plaintiff's benefits claim became final on January 13, 2023, when the Social Secutiy Appeals Counsel denied plaintiff's request to review the ALJ's decision. See AR 1-8. This appeal followed.
II. DISPUTED ISSUES
Plaintiff raises only a single issue in this appeal. Doc. No. 13 at 3. She argues the ALJ failed to articulate specific, clear, and convincing reasons for rejecting plaintiff's symptom testimony. Id.
III. STANDARD OF REVIEW
This Court will affirm the ALJ's decision if (1) the ALJ applied the correct legal standards; and (2) the decision is supported by substantial evidence. See Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under the substantial evidence standard, the Commissioner's findings are upheld if supported by inferences reasonably drawn from the record, and if there is evidence in the record to support more than one rational interpretation, the Court will defer to the Commissioner. Id.
Even if the ALJ makes an error, this Court can nonetheless affirm the denial of benefits if such error was “harmless, meaning it was ‘inconsequential to the ultimate nondisability determination.'” Ford, 950 F.3d at 1154 (quoting Tommasetti, 533 F.3d 1035, 1038 (9th Cir. 2008). The Court's ability to uphold the ALJ's decision is limited in that this Court may not make independent findings and therefore cannot uphold the decision on a ground not asserted by the ALJ. See Stout v. Comm'r of the Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).
IV. ANALYSIS OF THE COMMISSIONER'S DECISION
Plaintiff claims only one error: the ALJ erroneously discounted plaintiff's subjective symptom testimony. See generally Doc. No. 13 at 3-8. When a Social Security claimant presents objective medical evidence of an underlying impairment that might reasonably produce the complained-of symptoms, and the ALJ does not find evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of those symptoms for “specific, clear, and convincing reasons.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (citing Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015)). The “‘clear and convincing' standard requires an ALJ to show his work.” Smartt. v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). “The standard isn't whether [this] court is convinced, but instead whether the ALJ's rationale is clear enough that it has the power to convince.” Id. At the same time, the ALJ may not merely provide a summary of record evidence and a boilerplate conclusion that plaintiff's testimony is generally inconsistent with objective medical evidence. Lambert, 980 F.3d 1266 at 1277. Rather, the ALJ must identify specific testimony he or she finds not credible and “link that testimony to parts of the record supporting” the negative credibility assessment. Brown-Hunter, 806 F.3d 487.
The record shows plaintiff's subjective testimony established the following symptoms that she claims impacted her ability to work: headaches, fatigue, sleeplessness, pain in her knees causing an inability to stand for more than five minutes at a time and an inability to walk for more than ten minutes at a time, an inability to crouch or bend over because of abdominal pain caused by her cirrhosis, and an inability to lift more than three or four pounds with either arm. See AR 41-43, 359, 363. The ALJ devoted considerable effort to rebutting plaintiff's complaints about knee pain. See AR 25-26. Although the ALJ addressed plaintiff's cirrhosis, he did so in a generalized sense, and he made no effort to identify which of the specific symptoms caused by plaintiff's cirrhosis were negated by other evidence in the record. AR 26-27. In fact the ALJ generally failed to identify or address plaintiff's sleeplessness, fatigue, headaches, abdominal pain, and inability to lift more than three or four pounds. Case law requires the ALJ to identify specifically which subjective testimony he finds not credible and then explain, with reference to evidence in the record, why that particular testimony is not credible. See Lambert, 980 F.3d 1266 at 1277; Brown-Hunter, 806 F.3d at 489. The Court finds most problematic the ALJ's failure to address plaintiff's testimony about being unable to lift more than three or four pounds because lifting up to 20 pounds is called for by the regulations that define the “light work” the ALJ concluded plaintiff could perform. See 20 C.F.R. § 404.1567(b). The ALJ also needed, but failed, to explain why plaintiff's fatigue and other symptoms of her cirrhosis do not impact her ability to work. It is not enough to conclude plaintiff can work because because she is apparently not dying from her condition. The Court concludes the ALJ erred by failing to account for each item of plaintiff's subjective symptom testimony.
Even the ALJ's apparently fulsome assessment of plaintiff's knee pain fell short: for example, plaintiff testified her ability to walk was limited to no more than ten minutes, and she could stand for no more than five. AR 42. The ALJ rejected this testimony because there was evidence showing plaintiff was capable of walking and standing. See AR 25-26. But the ALJ's finding that plaintiff was capable of walking and standing for any length of time whatsoever does not address the actual limitations identified by plaintiff's testimony. On remand, the ALJ must address not only plaintiff's ability to stand and walk. He must also address her ability to stand and walk long enough and well enough to work. See Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (noting that being able to perform some activites of daily living does not necessarily imply the ability to work).
The Court also notes the ALJ made an issue of the fact that plaintiff used an interpreter at the hearing, while some evidence in the record suggested she could “speak and understand English.” See AR 25. The parties dispute whether this amounted to the ALJ making a negative credibility assessment against plaintiff. Compare Doc. No. 13 at 5-9 with Doc. No. 15 at 6-7. The ALJ's decision is not clear on whether plaintiff's use of an interpreter factored into the ALJ's credibility assessment. See AR 25. The “other evidence” with which an ALJ assesses symptom-related functional limitations do not include using an interpreter at the hearing. See 20 C.F.R. § 404.1529(c)(3). The Court doubts plaintiff's election to use an interpreter has any bearing on her credibility given the disdain for impeachment through the use of collateral evidence not inherently probative of a witness's character for truthfulness. See Ortiz v. Yates, 704 F.3d 1026, 1038 (9th Cir. 2012). Although the Court does not decide whether the ALJ in fact made such a credibility determination in this case, the ALJ should, on remand, ensure his credibility determination abides by the guidelines set forth in the applicable regulations, which do not include plaintiff's use of an interpreter as a factor bearing on the credibility of subjective symptom testimony.
The parties dispute whether the matter should be remanded for further proceedings or whether the Court should direct the Administration to award benefits under the “credit as true” doctrine.” Compare Doc. No. 13 at 7-8 with Doc. No. 15 at 9-10. Under that doctrine, the Court will remand for further proceedings if the Court harbors any serious doubts the plaintiff is actually disabled. Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). Multiple medical professionals opined plaintiff was capable of working. See, e.g., AR 49-60, 62-79, 733, 740. Although these facts create serious doubts that plaintiff's subjective symptom testimony should be credited as true, the Court is constrained to “review the reasons the ALJ asserts.” See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). It is for the ALJ to determine in the first instance whether the record as a whole sufficiently negates plaintiff's subjective symptom testimony. Although the ALJ erred in failing to specifically address plaintiff's subjective symptom testimony, remand for an award of benefits would be inappropriate here.
V. CONCLUSION
The final decision of the Commissioner is VACATED and the matter is REMANDED for further proceedings consistent with this Order. The Clerk of Court is directed to enter judgment in favor of plaintiff and close the case. The entry of judgment will begin the running of the thirty-day period for which plaintiff, as the prevailing party, may make a timely application for attorneys' fees under the Equal Access to Justice Act. See 28 U.S.C. § 2412(d)(1)(B); Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002).
IT IS SO ORDERED.