Opinion

Jesus Mendez Reyes v. Nancy A. Berryhill

Court
District Court, C.D. California
Filed
Sep 17, 2019
Cited by
0 cases
Authority
More cited than 17.9%

“[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

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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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,

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Defendant.

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For the reasons discussed below, IT IS HEREBY ORDERED that,

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pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is

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remanded for further administrative action consistent with this

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Opinion.

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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).

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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).

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14 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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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).

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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).

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25 2 The ALJ found Plaintiff’s alleged diagnosis of myasthenia

gravis to be a non-severe impairment. (AR 54-55).

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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).

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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).

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13 STANDARD OF REVIEW

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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).

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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).

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19 PLAINTIFF’S CONTENTIONS

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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).

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1 DISCUSSION

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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

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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,

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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.

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(Id. at 6 (citing AR 79)). Because Plaintiff raises this argument

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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

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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

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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).

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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

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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

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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).

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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).

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12 In discrediting the claimant’s subjective symptom testimony,

13 the ALJ may consider the following:

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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.

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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).

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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).

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25 B. Analysis

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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.”).

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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).

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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

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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).

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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

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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

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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).

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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.”).

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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.).

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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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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