“[T]he ALJ may reject the 22 bound by the admissions of their attorney, including oral 23 admissions.”
How later courts described this case
- “[T]he ALJ may reject the 22 bound by the admissions of their attorney, including oral 23 admissions.”
- “[U]nless an ALJ makes a finding of malingering 5 based on affirmative evidence thereof, he or she may only find an 6 applicant not credible by making specific findings as to 7 credibility and stating clear and convincing reasons for each.”
- inferences “reasonably drawn from the record” 4 can constitute substantial evidence
- “The ALJ . . . failed to identify 9 specifically which of Brown–Hunter’s statements she found not 10 credible and why.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 JESUS MENDEZ REYES, Case No. CV 18-7748 AS
12 Plaintiff,
MEMORANDUM OPINION
13 v.
14 ANDREW M. SAUL,1 Commissioner AND ORDER OF REMAND
of Social Security,
15
Defendant.
16
17
For the reasons discussed below, IT IS HEREBY ORDERED that,
18
pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is
19
remanded for further administrative action consistent with this
20
Opinion.
21
22
23
24
25
26
1 Andrew M. Saul, Commissioner of Social Security, is
27 substituted for his predecessor. See 42 U.S.C. § 405(g); Fed. R.
Civ. P. 25(d).
28
1 PROCEEDINGS
2
3 On September 6, 2018, Plaintiff filed a Complaint seeking
4 review of the Commissioner's denial of Plaintiff’s applications
5 for disability insurance benefits (“DIB”) and supplemental security
6 income (“SSI”). (Dkt. No. 1). On March 4, 2019, Defendant filed
7 an Answer and the Administrative Record (“AR”). (Dkt. Nos. 16-
8 17). On June 3, 2019, the parties filed a joint stipulation setting
9 forth their respective positions regarding Plaintiff’s claims.
10 (“Joint Stip.,” Dkt. No. 18). The parties have consented to proceed
11 before the undersigned United States Magistrate Judge. (Dkt. Nos.
12 9, 22-23).
13
14 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
15
16 On April 1, 2015, Plaintiff, formerly employed as a
17 caregiver/companion and a psychiatric technician, constructively
18 filed applications for DIB and SSI alleging a disability onset
19 date of May 1, 2007. (AR 202-18, 267). Plaintiff’s applications
20 were denied initially on August 27, 2015, (AR 118, 145-49), and
21 on reconsideration on December 8, 2015. (AR 141-42, 151-55).
22
23 On June 15, 2017, Administrative Law Judge Henry Koltys
24 (“ALJ”) heard testimony from Plaintiff, who was represented by
25 counsel, and vocational expert (“VE”) Sharon Spaventa. (See AR
26 73-100). At the hearing, upon the ALJ’s suggestion, Plaintiff
27 amended his alleged onset date to “October 2014.” (AR 79-80). On
28 October 3, 2017, the ALJ issued a decision acknowledging
1 Plaintiff’s amended onset date as October 1, 2014, and denying
2 Plaintiff’s application upon concluding that Plaintiff has not
3 been disabled since that date. (See AR 52-57).
4
5 The ALJ applied the requisite five-step process to evaluate
6 Plaintiff’s case. At step one, the ALJ found that Plaintiff has
7 not engaged in substantial gainful activity since October 1, 2014,
8 the amended alleged onset date. (AR 54). At step two, the ALJ
9 found that Plaintiff’s diabetes mellitus, hypertension, and
10 history of prostate cancer are severe impairments.2 (Id.). At
11 step three, the ALJ determined that Plaintiff’s impairments do not
12 meet or equal a listing found in 20 C.F.R Part 404, Subpart P,
13 Appendix 1. (AR 55).
14
15 Next, before proceeding to step four, the ALJ found that
16 Plaintiff has the Residual Functional Capacity (“RFC”)3 to perform
17 “medium work,” except that he can “frequently climb ramps/stairs;
18 frequently crawl [or] kneel; [and] occasionally stoop, crouch,
19 climb ladders, ropes, [and] scaffolds.” (Id.). At step four, the
20 ALJ determined that Plaintiff is capable of performing his past
21 relevant work as a companion and psychiatric technician. (AR 57).
22
23
24
25 2 The ALJ found Plaintiff’s alleged diagnosis of myasthenia
gravis to be a non-severe impairment. (AR 54-55).
26
3 A Residual Functional Capacity is what a claimant can
27 still do despite existing exertional and nonexertional limitations.
See 20 C.F.R §§ 404.1545(a)(1), 416.945(a)(1).
28
1 Accordingly, the ALJ concluded that Plaintiff is not disabled.
2 (Id.).
3
4 Following the ALJ’s decision, Plaintiff submitted a request
5 for review to the Appeals Council (AR 198-200), along with a
6 supporting brief from his attorney (AR 337), and additional medical
7 evidence (AR 25-47, 62-63). On July 12, 2018, the Appeals Council
8 denied Plaintiff’s request to review the ALJ’s decision. (See AR
9 1-4). Plaintiff now seeks judicial review of the ALJ’s decision,
10 which stands as the final decision of the Commissioner. See 42
11 U.S.C. §§ 405(g), 1383(c).
12
13 STANDARD OF REVIEW
14
15 This Court reviews the Commissioner’s decision to determine
16 if: (1) the Commissioner’s findings are supported by substantial
17 evidence; and (2) the Commissioner used proper legal standards. 42
18 U.S.C § 405(g); see Carmickle v. Comm’r, 533 F.3d 1155, 1159 (9th
19 Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007).
20 “Substantial evidence is more than a scintilla, but less than a
21 preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
22 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir.
23 1997)). It is relevant evidence “which a reasonable person might
24 accept as adequate to support a conclusion.” Hoopai, 499 F. 3d at
25 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). To
26 determine whether substantial evidence supports a finding, “a court
27 must ‘consider the record as a whole, weighing both evidence that
28 supports and evidence that detracts from the [Commissioner’s]
1 conclusion.’ ” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.
2 2001) (citation omitted); see Widmark v. Barnhart, 454 F.3d 1063,
3 1066 (9th Cir. 2006) (inferences “reasonably drawn from the record”
4 can constitute substantial evidence).
5
6 This Court “may not affirm [the Commissioner’s] decision
7 simply by isolating a specific quantum of support evidence, but
8 must also consider evidence that detracts from [the Commissioner’s]
9 conclusion.” Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987)
10 (citation and internal quotation marks omitted). However, the
11 Court cannot disturb findings supported by substantial evidence,
12 even though there may exist other evidence supporting the
13 plaintiff’s claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th
14 Cir. 1973). “If the evidence can reasonably support either
15 affirming or reversing the [Commissioner’s] conclusion, [a] court
16 may not substitute its judgment for that of the [Commissioner].”
17 Reddick, 157 F.3d 715, 720-21 (9th Cir. 1998) (citation omitted).
18
19 PLAINTIFF’S CONTENTIONS
20
21 Plaintiff alleges that (1) the ALJ erred in evaluating the
22 medical evidence; (2) the ALJ erred in assessing Plaintiff’s
23 subjective symptoms; and (3) the ALJ’s decision is not supported
24 by substantial evidence in light of additional records submitted
25 to the Appeals Council. (See Joint Stip. at 3-23).
26
27
28
1 DISCUSSION
2
3 After consideration of the record as a whole, for the reasons
4 discussed below, it is recommended that the decision be remanded
5 for further consideration because the ALJ erred in discrediting
6 Plaintiff’s subjective symptom testimony. Because the case
7 warrants remand on this basis, Plaintiff’s other contentions need
8 not be addressed here.4
9
10
4 One of Plaintiff’s contentions, pertaining to the ALJ’s
11 assessment of the medical evidence (Issue 1), is that the ALJ erred
by not considering the records that pre-dated Plaintiff’s amended
12 alleged onset date of October 1, 2014. (Joint Stip. at 6-7). While
arguing that these records were relevant because they shed light
13 on the post-2014 period, Plaintiff also states:
14 Should the Commissioner argue that these records are
irrelevant because they pre-date the alleged onset date,
15
plaintiff contends any amendment of the onset date was
16 not done voluntarily. [Plaintiff] did not knowingly and
voluntarily amend his onset date. There is no indication
17 in the record that he understood the ramifications of
amending his onset date, nor was there great discussion
18 of his earnings, and whether they actually satisfied the
legal standard for SGA.
19
(Id. at 6 (citing AR 79)). Because Plaintiff raises this argument
20
only briefly, without further support, and merely as an alternative
21 argument within a sub-issue, the Court need not address it here
based on the Court’s determination that the case should be remanded
22 on a separate issue.
23 Nevertheless, the Court notes that Plaintiff was present and
represented by counsel at the hearing when his counsel agreed with
24 the ALJ that the onset date should be amended from 2007 to 2014,
and nothing in the record suggests coercion or deception. (See AR
25
79-80); see also Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010)
26 (absent a showing of coercion or deception, plaintiff is bound by
his agreement and the agreement of his representative to amend the
27 disability onset date) (citing 20 C.F.R. § 416.1510(a)(3)(4)); Town
of N. Bonneville v. Callaway, 10 F.3d 1505, 1509 (9th Cir. 1993)
28 (“In the absence of egregious circumstances, parties are generally
1 A. Legal Standard for Assessing Subjective Symptom Testimony
2
3 When assessing a claimant’s credibility regarding subjective
4 pain or intensity of symptoms, the ALJ must engage in a two-step
5 analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017).
6 First, the ALJ must determine if there is medical evidence of an
7 impairment that could reasonably produce the symptoms alleged.
8 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). “In this
9 analysis, the claimant is not required to show that her impairment
10 could reasonably be expected to cause the severity of the symptom
11 she has alleged; she need only show that it could reasonably have
12 caused some degree of the symptom.” Id. (emphasis in original)
13 (citation omitted). “Nor must a claimant produce objective medical
14 evidence of the pain or fatigue itself, or the severity thereof.”
15 Id. (citation omitted).
16
17 If the claimant satisfies this first step, and there is no
18 evidence of malingering, the ALJ must provide specific, clear and
19 convincing reasons for rejecting the claimant’s testimony about
20 the symptom severity. Trevizo, 871 F.3d at 678 (citation omitted);
21 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the
22
bound by the admissions of their attorney, including oral
23 admissions.”). Plaintiff also does not point to any evidence to
dispute that in 2013 he earned $22,930.16 in his job as a companion
24 at Help Unlimited Inc. (See AR 79, 242, 245-46). Plaintiff’s
counsel agreed with the ALJ’s suggestion to amend the onset date
25
because these earnings qualified the job as substantial gainful
26 activity (“SGA”) in 2013, under agency regulations. (AR 79-80);
see 20 C.F.R. § 404.1574; Social Security Administration,
27 “Substantial Gainful Activity,” https://www.ssa.gov/oact/cola/sga.
html (last visited July 1, 2019).
28
1 claimant’s testimony regarding the severity of her symptoms only
2 if he makes specific findings stating clear and convincing reasons
3 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883
4 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering
5 based on affirmative evidence thereof, he or she may only find an
6 applicant not credible by making specific findings as to
7 credibility and stating clear and convincing reasons for each.”).
8 “This is not an easy requirement to meet: The clear and convincing
9 standard is the most demanding required in Social Security cases.”
10 Garrison, 759 F.3d at 1015 (citation omitted).
11
12 In discrediting the claimant’s subjective symptom testimony,
13 the ALJ may consider the following:
14
15 (1) ordinary techniques of credibility evaluation, such
16 as the claimant’s reputation for lying, prior
17 inconsistent statements concerning the symptoms, and
18 other testimony by the claimant that appears less than
19 candid; (2) unexplained or inadequately explained
20 failure to seek treatment or to follow a prescribed
21 course of treatment; and (3) the claimant’s daily
22 activities.
23
24 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation
25 omitted). Inconsistencies between a claimant’s testimony and
26 conduct, or internal contradictions in the claimant’s testimony,
27 also may be relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th
28 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.
1 1997). In addition, the ALJ may consider the observations of
2 treating and examining physicians regarding, among other matters,
3 the functional restrictions caused by the claimant’s symptoms.
4 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However,
5 it is improper for an ALJ to reject subjective testimony based
6 “solely” on its inconsistencies with the objective medical evidence
7 presented. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227
8 (9th Cir. 2009) (citation omitted).
9
10 Further, the ALJ must make a credibility determination with
11 findings that are “sufficiently specific to permit the court to
12 conclude that the ALJ did not arbitrarily discredit claimant’s
13 testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
14 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487,
15 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not
16 credible must be sufficiently specific to allow a reviewing court
17 to conclude the adjudicator rejected the claimant’s testimony on
18 permissible grounds and did not arbitrarily discredit a claimant’s
19 testimony regarding pain.”) (citation omitted). Although an ALJ’s
20 interpretation of a claimant’s testimony may not be the only
21 reasonable one, if it is supported by substantial evidence, “it is
22 not [the court’s] role to second-guess it.” Rollins v. Massanari,
23 261 F.3d 853, 857 (9th Cir. 2001).
24
25 B. Analysis
26
27 The ALJ found that Plaintiff’s “medically determinable
28 impairments could reasonably be expected to cause the alleged
1 symptoms,” but that Plaintiff’s “statements concerning the
2 intensity, persistence and limiting effects of these symptoms are
3 not entirely consistent with the medical evidence and other
4 evidence in the record for the reasons explained in th[e]
5 decision.” (AR 56). However, the ALJ offered little explanation
6 for this finding, and failed to clarify which of Plaintiff’s
7 statements he found credible or not credible and why. See Brown-
8 Hunter, 806 F.3d at 493 (“The ALJ . . . failed to identify
9 specifically which of Brown–Hunter’s statements she found not
10 credible and why.”); Knape v. Berryhill, 734 F. App’x 500, 501 (9th
11 Cir. 2018) (“The ALJ failed to identify the parts of Knape’s mental
12 health symptom testimony he found not credible and failed to
13 provide any links to the record.”); Fritz v. Berryhill, 685 F.
14 App’x 585, 586 (9th Cir. 2017) (“[T]he ALJ did not identify what
15 testimony was not credible and what evidence undermined Fritz’s
16 complaints.”).
17
18 The ALJ’s credibility determination was partly based on
19 Plaintiff’s daily activities. An ALJ properly may consider the
20 claimant’s daily activities in weighing credibility. Tommasetti,
21 533 F.3d at 1039. Here, the ALJ specifically referenced
22 Plaintiff’s testimony about caring for his son who has bipolar
23 disorder as a daily activity that undermined the credibility of
24 his symptom testimony, (AR 56), stating, “[Plaintiff] said that he
25 takes him to appointments and cooks for him. He said that he does
26 basketball and golfing with him,” and concluding, without further
27 explanation, that “[t]hese activities are not consistent with
28 [Plaintiff’s] allegations of disability.” (Id.).
1 The ALJ’s account of Plaintiff’s activities is misleading.
2 For example, although Plaintiff testified that he and his son “play
3 basketball,” he clarified this by explaining: “We don't play, but
4 we’ll be shooting a round. We shoot around baskets. He does. I
5 throw him the ball. That’s all.” (AR 88). When asked if he can
6 dribble the ball, Plaintiff replied: “No, no. I just throw them
7 (sic) the ball. He wants to be a basketball player, so I stand on
8 the court and throw him the ball. That’s about it.” (AR 89). As
9 for golfing, Plaintiff testified that he “take[s his] son golfing,”
10 and “teach[es] him the fundamentals.” (AR 89). He stated, however,
11 that he cannot swing a golf club. (Id.). He instead teaches his
12 son “[j]ust the poses and how to grab, the grip.” (Id.). Plaintiff
13 also testified that he cooks for his son, but he clarified that he
14 makes only “Breakfast, eggs, toast.” (AR 88).
15
16 While the ALJ correctly noted that Plaintiff testified that
17 he takes his son to appointments (AR 56, 88), Plaintiff did not
18 indicate whether he drove to appointments. The record suggests
19 that Plaintiff may have been unable to drive or read due to vision
20 impairment caused by myasthenia gravis, a chronic autoimmune
21 neuromuscular disease, during at least some part of the relevant
22 period. (See AR 768 (January 2016 note from Dr. Neda Heidari,
23 M.D., stating that Plaintiff was “unable to work and drive”); see
24 also AR 84, 86-87, 318 (January 2016 disability report, stating:
25 “Cannot read and vision is blurry. No longer allowed to drive, per
26 doctors orders.”)).5 At the hearing on June 15, 2017, Plaintiff
27
5 Dr. Heidari is a neurologist who has treated Plaintiff
28 for myasthenia gravis. (AR 82-83, 95-96). Plaintiff testified at
1 testified that his myasthenia gravis was being treated with
2 medication, along with infusions three times per month, but he
3 stated that the medication only “sometimes” helped the vision
4 problem. (AR 87).
5
6
7
the hearing that he had been seeing Dr. Heidari for about three
8 years, and saw her every three or four months. (AR 96). The ALJ
discredited Dr. Heidari’s opinion because there was no support or
9 reasoning provided for it. (AR 56). It appears that none of Dr.
Heidari’s treatment records were part of the record when the ALJ
10 issued his decision. For that reason, the ALJ also found that the
evidence failed to establish a medically determinable impairment
11
of myasthenia gravis. (AR 54-55). However, Plaintiff later
12 submitted additional records to the Appeals Council, including
medical records documenting IV infusion treatment by Dr. Heidari
13 in November 2017 and scheduling follow-up treatment (AR 29-37, 40-
43, 46, 62-63); a brief, handwritten note from Dr. Heidari stating
14 that Plaintiff “is unable to work due to his neuromuscular
condition & dependency on his IV meds” (AR 45); and several pages
15
of general information about myasthenia gravis, such as how it
16 causes muscle weakness and impairs the functioning of eyes and
limbs and the ability to swallow, among other things (AR 25-28,
17 38-39, 44, 47). The Appeals Council reviewed these documents and
determined that most of them were too recent to relate to the
18 alleged period of disability, and a consideration of the other
documents did not raise a reasonable probability that they would
19
change the ALJ’s unfavorable decision. (AR 1-2).
20
Although these additional documents do not specifically
21 illuminate the nature, extent, or duration of Plaintiff’s condition
and treatments, they are at least consistent with Plaintiff’s
22 testimony that he was diagnosed with myasthenia gravis; that he
has experienced impaired eyesight, arm and leg weakness, difficulty
23 swallowing, and other symptoms; and that Dr. Heidari has been
treating him with medication and IV infusions. (AR 81-87, 94-96).
24
This Court considers these records in reviewing the Commissioner’s
25 decision. See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157,
1163 (9th Cir. 2012) (“[W]hen the Appeals Council considers new
26 evidence in deciding whether to review a decision of the ALJ, that
evidence becomes part of the administrative record, which the
27 district court must consider when reviewing the Commissioner’s
final decision for substantial evidence.”).
28
1 Aside from citing to Plaintiff’s daily activities, the ALJ
2 also found that Plaintiff’s medical records did not “show the types
3 of serious symptoms and dysfunction that would be expected were
4 [Plaintiff] as limited as alleged.” (AR 56). The ALJ primarily
5 found that Plaintiff’s conservative treatment with medications was
6 inconsistent with Plaintiff’s allegations of disability, noting,
7 for example, that Plaintiff “was not referred to an orthopedic
8 surgeon for his back pain and was solely managed with pain
9 medications, suggesting that this conservative treatment was
10 sufficient in controlling [Plaintiff’s] symptoms.” (Id.).
11
12 However, the ALJ did not address the extent to which other
13 treatments may not have eliminated certain persistent, disruptive
14 symptoms. Most notably, the ALJ did not discuss Plaintiff’s
15 urinary incontinence, a condition that has apparently persisted,
16 without improvement, since Plaintiff’s prostate surgery in 2007.
17 (See AR 80, 83-84, 341, 368, 466-70, 553, 599, 633, 674, 686, 689-
18 90). Plaintiff testified that his urinary incontinence requires
19 him to use about ten diapers a day. (AR 84). He has also stated
20 that he leaks urine so much that he “put[s] on 2 Depends [adult
21 diapers, and] in 2 [hours] both are soak[ed].” (AR 261 (April 2015
22 questionnaire)). He reported that he needed to change his diaper
23 “every one and a half hours.” (AR 292 (November 2015 disability
24 report)). Plaintiff also stated, that he needs to use the bathroom
25 every fifteen minutes. (AR 263 (April 2015 questionnaire), 296
26 (November 2015 disability report)). Plaintiff testified that he
27 cannot lift anything over ten pounds “[w]ithout leaking [urine].”
28 (AR 94).
1 Plaintiff reported that his urinary incontinence was the
2 primary reason why he stopped working at his part-time companion
3 job in October 2014. (See AR 253 (reason why he stopped working:
4 “Part Time Job unable to hold urine”)). He testified that he just
5 “couldn’t do [the job] no more,” and explained that he was “working
6 only two hours” and “sometimes [he] didn’t even come in because
7 [he] urinated on [him]self.”6 (AR 79). He stated that his urine
8 “just kept on flowing.” (AR 83). Plaintiff’s medical records
9 confirm that Plaintiff suffered from urinary incontinence and wore
10 diapers. (See, e.g., AR 338, 341, 380, 553, 599, 633, 674, 686,
11 689-90). It does not appear from the record that Plaintiff received
12 any treatment to alleviate this condition. Plaintiff testified
13 that the only related treatment he receives is for “urine
14 infections.” (AR 84).
15
16 The ALJ did not discuss Plaintiff’s urinary incontinence in
17 the decision, aside from briefly mentioning that Plaintiff had
18
6 Plaintiff presumably meant that he worked only two hours
19 per day, but the record is unclear. The transcript reads: “I was
working only two hours [PHONETIC], and sometimes I didn’t even come
20
in because I urinated on myself.” (AR 79) (brackets in original).
21
The companion job at Help Unlimited Inc. that Plaintiff left
22 in 2014 was part-time but it qualified as SGA under agency
regulations because Plaintiff earned $22,930.16 in 2013. (See AR
23 79, 242, 245-46); see also 20 C.F.R. § 404.1574; Social Security
Administration, “Substantial Gainful Activity,” https://www.ssa.
24
gov/oact/cola/sga.html (last visited July 1, 2019). Plaintiff
25 appears to have first worked for Help Unlimited Inc. in 2008 – the
year after his 2007 prostate surgery (AR 80) – but 2013 was the
26 only year in which he received SGA-level earnings. (AR 242, 245-
46). In other years he earned considerably less: $566 (2008), $0
27 (2009), $8,250 (2010), $5,524 (2011), $10,457 (2012), and $5,162.94
(2014). (AR 245-46).
28
1 complained of the condition and his primary physician had noted
2 it. (AR 55-56). Moreover, none of the daily activities or medical
3 evidence that the ALJ relied on to discredit Plaintiff’s subjective
4 symptom testimony are inconsistent with Plaintiff’s statements
5 about incontinence. Despite this, the ALJ does not appear to have
6 accounted for any incontinence-related problems when determining
7 Plaintiff’s RFC, or asked the VE at the hearing whether Plaintiff’s
8 ability to work would be limited by any incontinence-related
9 problems. (AR 55, 98-99). As noted above, based on Plaintiff’s
10 statements, such problems included the need to use the bathroom
11 every fifteen minutes and/or change his diaper every hour and a
12 half, and an inability to lift anything over ten pounds without
13 leaking urine. (See AR 84, 92, 264, 292, 296).
14
15 The ALJ did not provide any explanation for failing to take
16 Plaintiff’s statements about his incontinence into account in
17 assessing Plaintiff’s ability to work. The ALJ instead simply
18 limited Plaintiff to “medium work,” with the ability to “frequently
19 climb ramps/stairs; frequently crawl [or] kneel; [and] occasionally
20 stoop, crouch, climb ladders, ropes, [and] scaffolds.” (AR 55).
21 The ALJ then relied on the VE’s testimony to conclude that
22 Plaintiff, with this RFC, could work in his two past relevant jobs
23 (AR 57, 99) – one of which predated Plaintiff’s incontinence, and
24 the other of which lasted only a year with SGA-level earnings, and
25 allegedly ended due to incontinence. (See AR 79-80, 242-245-46,
26 253-54).
27
28
1 In sum, the ALJ rejected Plaintiff’s subjective statements as
2 inconsistent with his daily activities and conservative treatment,
3 but failed to support this finding with clear and convincing
4 reasons that were supported by substantial evidence in the record.
5
6 C. Remand Is Warranted
7
8 The decision whether to remand for further proceedings or
9 order an immediate award of benefits is within the district court’s
10 discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir.
11 2000). Where no useful purpose would be served by further
12 administrative proceedings, or where the record has been fully
13 developed, it is appropriate to exercise this discretion to direct
14 an immediate award of benefits. Id. at 1179 (“[T]he decision of
15 whether to remand for further proceedings turns upon the likely
16 utility of such proceedings.”). However, where, as here, the
17 circumstances of the case suggest that further administrative
18 review could remedy the Commissioner’s errors, remand is
19 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011);
20 Harman v. Apfel, 211 F.3d at 1179-81. Because outstanding issues
21 must be resolved before a determination of disability can be made,
22 and “the record as a whole creates serious doubt as to whether
23 [Plaintiff], in fact, is disabled within the meaning of the Social
24 Security Act,” further administrative proceedings would serve a
25 useful purpose and remedy defects. Burrell v. Colvin, 775 F.3d
26 1133, 1141 (9th Cir. 2014)(citations omitted).
27
28
1 ORDER
2
3 For the reasons discussed above, the decision of the
4 Commissioner is reversed, and the matter is remanded for further
5 proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g).
6
7 LET JUDGMENT BE ENTERED ACCORDINGLY.
8
9 DATED: September 17, 2019.
10
/s/ _________
11 ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE
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