Castro v. Saul

          MEMORANDUM OPINION AND ORDER OF REMAND

         For the reasons discussed below, IT IS HEREBY ORDERED that, pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is remanded for further administrative action consistent with this Opinion.

         PROCEEDINGS

         On February 11, 2019, Plaintiff filed a Complaint seeking review of the denial of her application for Disability Insurance Benefits. (Docket Entry No. 1). The parties have consented to proceed before the undersigned United States Magistrate Judge. (Docket Entry Nos. 11-12). On July 23, 2019, Defendant filed an Answer along with the Administrative Record (“AR”). (Docket Entry Nos. 17-18). On November 21, 2019, the parties filed a Joint Stipulation (“Joint Stip.”) setting forth their respective positions regarding Plaintiff's claim. (Docket Entry No. 26).

         The Court has taken this matter under submission without oral argument. See C.D. Cal. L.R. 7-15.

         BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

         On February 8, 2016, Plaintiff, formerly employed as an administrative assistant and receptionist (see AR 44-45, 147-52, 195-97), filed an application for Disability Insurance Benefits, alleging an inability to work because of a disabling condition since September 1, 2015. (See AR 126-27). The Commissioner denied Plaintiff's application, initially and on reconsideration. (AR 66-75). On November 1, 2017, Plaintiff, represented by counsel, testified at a hearing before Administrative Law Judge (“ALJ”), James Carberry, who also heard testimony from and vocational expert Ms. Cicero. (See AR 37-64).

         On January 10, 2018, the ALJ issued a decision denying Plaintiff's application. (See AR 21-30). Applying the five-step sequential process, the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since September 1, 2015. (AR 23). At step two, the ALJ determined that Plaintiff had the following severe impairments -- “degenerative disc disease status post cervical fusion, left shoulder degenerative joint disease, and fibromyalgia.” (AR 24).^[2]At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or equaled the severity of one of the listed impairments.^[3] (AR 25). The ALJ then assessed Plaintiff's residual functional capacity (“RFC”)^[4] and concluded that she could perform light work^[5] with the following limitations:

[Plaintiff] can lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently; can stand and walk 2 hours out of 8 hours; can sit for 6 hours out of 8 hours; can never climb ladders, ropes or scaffolds; can occasionally climb ramps and stairs; can occasionally balance, stoop, kneel, crouch and crawl; and can frequently reach overhead and perform gross and fine manipulation.

(AR 25-28).

         At step four, the ALJ determined that Plaintiff was able to perform past relevant work as an administrative assistant and receptionist as generally performed (AR 28-29), and therefore found that Plaintiff was not under a disability led within the meaning of the Social Security Act from the alleged disability onset date, September 1, 2015, to the date of the decision. (AR 29-30).

         The Appeals Council denied Plaintiff's request for review on December 27, 2018. (See AR 5-9). Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. See 42 U.S.C. §§ 405(g), 1383(c).

         STANDARD OF REVIEW

         This Court reviews the Commissioner's decision to determine if it is free of legal error and supported by substantial evidence. See Brewes v. Comm'r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence” is more than a mere scintilla, but less than a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine whether substantial evidence supports a finding, “a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.” Id. As a result, “[w]here the evidence can reasonably support either affirming or reversing [the ALJ's] decision, [a court] may not substitute [its] judgment for that of the [ALJ].” Id. at 1010 (citations omitted).^[6]

         PLAINTIFF'S CONTENTION

         Plaintiff alleges that the ALJ erred in rejecting Plaintiff's testimony about her symptoms and limitations. (See Joint Stip. at 4-12, 17-18).

         DISCUSSION

         After consideration of the record as a whole, the Court finds that Plaintiff's claim of error warrants a remand for further consideration.

         A. The ALJ Failed To Provide Clear and Convincing Reasons For Rejecting Plaintiff's Subjective Symptom Testimony

         Plaintiff asserts that the ALJ did not provide clear and convincing reasons for rejecting Plaintiff's testimony about her symptoms and limitations. (See Joint Stip. at 4-12, 17-18). Defendant asserts that the ALJ provided specific and permissible reasons for finding Plaintiff not fully credible. (See Joint Stip. at 12-17).

         1. Legal Standard

         When assessing a claimant's credibility regarding subjective pain or intensity of symptoms, the ALJ must engage in a two-step analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine if there is medical evidence of an impairment that could reasonably produce the symptoms alleged. Id., (citing Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). “In this analysis, the claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Id. (emphasis in original) (citation omitted). “Nor must a claimant produce objective medical evidence of the pain or fatigue itself, or the severity thereof.” Id. (citation omitted).

         If the claimant satisfies this first step, and there is no evidence of malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the claimant's testimony about the symptom severity. Trevizo, 871 F.3d at 678 (citation omitted); see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the claimant's testimony regarding the severity of her symptoms only if he makes specific findings stating clear and convincing reasons for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each.”). “This is not an easy requirement to meet: The clear and convincing standard is the most demanding required in Social Security cases.” Garrison, 759 F.3d at 1015 (citation omitted).

         Where, as here, the ALJ finds that a claimant suffers from a medically determinable physical or mental impairment that could reasonably be expected to produce her alleged symptoms, the ALJ must evaluate “the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities for an adult.” Soc. Sec. Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *3.^[1] SSR 16-3p superseded SSR 96-7p and ...