# Ward Benjamin Tate v. Nancy A. Berryhill

> District Court, C.D. California · November 25, 2019

URL: https://www.frixlaw.com/law-library/cases/10036234

## Case

- **Court:** District Court, C.D. California
- **Decided:** November 25, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WARD B. T.,1 Case No. ED CV 19-00123-RAO
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Plaintiff,
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v. MEMORANDUM OPINION AND
14 ORDER
ANDREW M. SAUL,2
15 Commissioner of Social Security,
16 Defendant.
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I. INTRODUCTION
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Plaintiff Ward Benjamin Tate (“Plaintiff”) challenges the Commissioner’s
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partial denial of his application for a period of disability, disability insurance benefits
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(“DIB”) and supplemental security income (“SSI”). For the reasons stated below,
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the decision of the Commissioner is REVERSED, and the matter is REMANDED.
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25 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B)
and the recommendation of the Committee on Court Administration and Case
26 Management of the Judicial Conference of the United States.
27 2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul,
the current Commissioner of Social Security, is hereby substituted as the defendant
28 herein.
1 II. PROCEEDINGS BELOW
2 On June 7, 2012, Plaintiff filed an application for a period of disability and DIB
3 alleging disability beginning on December 30, 2004. (Administrative Record (“AR”)
4 69-70, 80-81.) The same day, Plaintiff also protectively filed an application for SSI
5 under Title XVI alleging disability beginning on December 30, 2004. (AR 201-03,
6 204-15.) His application for a period of disability and DIB was denied on December
7 11, 2012. (AR 160.) Plaintiff filed a written request for hearing, and a hearing was
8 held on June 16, 2014. (AR 48-77, 176-77.) Represented by counsel, Plaintiff
9 appeared and testified, along with his wife, and an impartial vocational expert. (AR
10 48-77.) On September 9, 2014, the Administrative Law Judge (“ALJ”) found that
11 Plaintiff had not been under a disability, pursuant to the Social Security Act, from
12 December 30, 2004 through the date of decision. (AR 26.) The ALJ’s decision
13 became the Commissioner’s final decision when the Appeals Council denied
14 Plaintiff’s request for review. (AR 5.)
15 Plaintiff filed his first action in this Court on April 28, 2016. (AR 441-42, 445-
16 47.) The action resulted in reversal and remand of the ALJ’s decision. (AR 453, 454-
17 59.) On remand, the Court instructed the ALJ to “reassess Plaintiff’s subjective
18 allegations and either credit his testimony as true, or provide specific, clear and
19 convincing reasons, supported by substantial evidence in the record, for discounting
20 or rejecting any testimony.” (AR 458.)
21 On September 19, 2017, the Appeals Council notified Plaintiff of the remand.
22 (AR 460-62.) Plaintiff appeared and testified at a hearing on May 7, 2018, and at a
23 supplemental hearing on September 4, 2018. (AR 375- 423.) The supplemental
24 hearing included testimony from David M. Glassmire, Ph.D., an impartial
25 psychological expert, and David A. Rinehart, an impartial vocational expert. (AR
26 401-423.) Plaintiff was represented at both hearings. (AR 375-377, 401-403.)
27 On October 16, 2018, the ALJ rendered a partially favorable decision, finding
28 Plaintiff disabled only as of January 1, 2013. (AR 348.) Plaintiff did not file an appeal
1 with the Appeals Council. (Joint Stipulation “JS” 3.) The ALJ’s decision became the
2 Commissioner’s final decision.3 Plaintiff filed this action on January 22, 2019. (Dkt.
3 No. 1.)
4 The ALJ followed a five-step sequential evaluation process to assess whether
5 Plaintiff was disabled under the Social Security Act. See Lester v. Chater, 81 F.3d
6 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged
7 in substantial gainful activity since December 30, 2004, the alleged onset date
8 (“AOD”). (AR 351.) At step two, the ALJ found that Plaintiff has the following
9 severe impairments since the AOD: unspecified mood disorder and unspecified
10 anxiety disorder, hypertension, peripheral neuropathy, and back strain or sprain. (Id.)
11 In addition, the ALJ found that beginning January 1, 2013, Plaintiff has had the
12 following severe impairments: major depressive disorder, general anxiety disorder,
13 neurocognitive disorder from depression and medications, hypertension, peripheral
14 neuropathy, and back strain or sprain. (Id.) At step three, the ALJ found that prior to
15 January 1, 2013, Plaintiff “did not have an impairment or combination of impairments
16 that meets or medically equals the severity of one of the listed impairments in 20 CFR
17 Part 404, Subpart P, Appendix 1.” (Id.)
18 Before proceeding to step four, the ALJ found that prior to January 1, 2013,
19 Plaintiff had the residual functional capacity (“RFC”) to “perform medium work . . .
20 with the following additional restrictions: non-complex, routine tasks; no interactions
21 with the public; occasional teamwork with coworkers and supervisors; and would
22 miss work one to two time[s] per month.” (AR 353.)
23 ///

24 3 “[W]hen a case is remanded by a Federal court for further consideration, the
25 decision of the administrative law judge will become the final decision of the
Commissioner after remand on your case unless the Appeals Council assumes
26 jurisdiction of the case.” 20 C.F.R. § 404.984 (a). Upon review of the record, the
27 Court finds that the Appeals Council did not assume jurisdiction over the case and as
such the ALJ’s decision is the Commissioner’s final decision subject to this Court’s
28 review.
1 At step four, the ALJ found that Plaintiff has been unable to perform his past
2 work since December 30, 2004. (AR 357.) At step five, the ALJ found that “[p]rior
3 to January 1, 2013, . . .there were jobs that exist[ed] in significant numbers in the
4 national economy that [Plaintiff] could have performed.” (AR 358.) Accordingly,
5 the ALJ determined that, as to Plaintiff’s claim for period of disability and DIB,
6 Plaintiff had not been under a disability from the AOD through December 31, 2007,
7 the date last insured. (AR 362.) As to Plaintiff’s claim for SSI, the ALJ found that
8 Plaintiff was not disabled prior to January 1, 2013. (Id.)
9 III. STANDARD OF REVIEW
10 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s
11 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are
12 supported by substantial evidence and if the proper legal standards were applied.
13 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’
14 means more than a mere scintilla, but less than a preponderance; it is such relevant
15 evidence as a reasonable person might accept as adequate to support a conclusion.”
16 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc.
17 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial
18 evidence requirement “by setting out a detailed and thorough summary of the facts
19 and conflicting clinical evidence, stating his interpretation thereof, and making
20 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted).
21 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a
22 specific quantum of supporting evidence. Rather, a court must consider the record
23 as a whole, weighing both evidence that supports and evidence that detracts from the
24 Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)
25 (citations and internal quotation marks omitted). “‘Where evidence is susceptible to
26 more than one rational interpretation,’ the ALJ’s decision should be upheld.” Ryan
27 v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v.
28 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at 882 (“If the
1 evidence can support either affirming or reversing the ALJ’s conclusion, we may not
2 substitute our judgment for that of the ALJ.”). The Court may review only “the
3 reasons provided by the ALJ in the disability determination and may not affirm the
4 ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th
5 Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).
6 IV. DISCUSSION
7 Plaintiff raises one issue for review: whether the ALJ properly considered
8 Plaintiff’s subjective symptoms in assessing the RFC. (See Joint Submission (“JS”)
9 5.) For the reasons below, the Court agrees with Plaintiff.
10 A. The ALJ Failed to Properly Assess Plaintiff’s Subjective Symptom
11 Testimony
12 Plaintiff argues that the ALJ improperly rejected Plaintiff’s subjective
13 symptom testimony. (See JS 5-14, 23-24.) The Commissioner disagrees. (See JS
14 14-23.)
15 1. Plaintiff’s June 16, 2014 Testimony
16 Plaintiff testified that he completed a total of two years of college. (AR 42.)
17 He was 56 years old at the time of the hearing. (Id.) He testified that he is six feet,
18 two inches tall and weighs about 240 pounds. (AR 43.)
19 As to his work history, Plaintiff testified that the last time he worked was in
20 2002. (AR 39. ) He worked, and was a partner, for a company called Major Cleanup
21 Inc. (Id.) Major Cleanup Inc. was a hazardous waste transporting service. (AR 61.)
22 Plaintiff owned, operated, ran, and trained employees. (Id.) Plaintiff reports that he
23 would get mad and irritated by the employees and his business partner. (AR 39-40.)
24 Plaintiff testified that one day he “completely lost it” and “tore up the office.” (AR
25 40.) He explained that in 2002, he accused his business partner of embezzling money
26 but that he does not think that his partner embezzled money and it was all in his mind.
27 (AR 41.) Plaintiff had previously worked for Budget Environmental Services in 1999
28 and made about $50,000 that year. (AR 39.)
1 Plaintiff then testified that he purchased an antique shop in 2007. (AR 41.) In
2 2008 or 2009, Plaintiff filed for bankruptcy. (See AR 40-41.) He explained that
3 “half” of the problem is that he has great ideas but that he is unable to follow through
4 with them. (Id.) Plaintiff testified that he moved several times in the last years as a
5 result of “ideas of doing great things.” (AR 49.) However, he explained that “when
6 it came down to it, [he] couldn’t do it.” (Id.) Looking back on his decisions, Plaintiff
7 testified that the ideas were “losing proposition[s]” and that those decisions put his
8 wife “through hell.” (Id.) For example, the antique shop was his idea and while he
9 intended to be there, he got worse and could not go to work. (AR 50.) He would
10 leave his wife at the antique shop alone for seven days a week and twelve-hour days.
11 (Id.) Plaintiff reported being unable to work and being stuck at home. (Id.)
12 In 2009, Plaintiff went to a clinic where a psychiatrist told him “what was
13 wrong throughout” at least the last 10 years. (AR 41-42.) Plaintiff explained that it
14 was “awfully hard” to get an appointment. (AR 42.) Plaintiff testified that the
15 psychiatrist told him to avoid stress. (AR 50.) Plaintiff reported that when he filed
16 for bankruptcy, the problem got worse. (Id.)
17 The last time Plaintiff sought treatment from a mental health provider was in
18 2013. (AR 38.) Plaintiff was receiving counseling and medication. (Id.) Plaintiff
19 testified that he had not sought treatment since then because he could not afford
20 treatment. (Id.) He did not have insurance and only recently obtained Medi-Cal.
21 (AR 38-39.)
22 As to physical ailments, Plaintiff testified that in the 1980s he was informed
23 that he does not have cartilage between his knees. (AR 44.) As a result, Plaintiff
24 was told not to stoop or bend because it would cause him pain. (AR 44-45.) Plaintiff
25 was not ordered to wear knee braces. (Id.) Plaintiff also explained that in the 1970s
26 he was diagnosed with mitral valve prolapse and took blood pressure medicine to
27 help his heart. (AR 44.)
28 ///
1 Plaintiff has a driver’s license but does not drive unless he absolutely has to.
2 (AR 45.) He testified that he has problems leaving the house. (Id.) He gets panic
3 attacks that worsen when he drives. (Id.) He used to love driving but now he cannot
4 drive without getting the sweats. (Id.) He explained that his hands get clammy. (Id.)
5 Plaintiff does not go out of the house and cannot really drive. (Id.) Plaintiff explained
6 that he does not trust himself anymore. (Id.)
7 As far as daily activities, Plaintiff testified that he does “[v]ery little to
8 nothing.” (AR 45.) Plaintiff noted that he used to be more social and had hobbies
9 but that now he has no interests. (Id.) He does not have a social life. (AR 47.) He
10 is “completely shut off from the world these days.” (AR 48-49.) He described this
11 as “the worst time in [his] life” because he feels worthless and cannot do the things
12 he used to do. (AR 49.)
13 Plaintiff did not shave for the hearing because he cut himself once. (AR 45.)
14 Plaintiff explained that he was “extreme[ly] nervous” to be at the hearing. (AR 45-
15 46.) Plaintiff does not help with chores. (AR 46.) He described himself as a
16 “zombie,” he “might get three hours [of] sleep,” and sits on the couch. (Id.) Plaintiff
17 sometimes does not sleep. (AR 48.) In the past he has gone two to three days without
18 sleeping and did not sleep the night before the hearing. (Id.)
19 Plaintiff explained feeling worthless and depressed. (AR 46.) He feels that he
20 should do something but cannot. (Id.) He also testified to having anger issues and
21 that is what happened at work. (AR 47.) He noted that it had happened before, but
22 that he was getting worse. (Id.) He sometimes feels “as happy as a bee” but he is
23 unable to leave the house. (Id.) Plaintiff explained that he gets ideas of all the things
24 he wants to do but when he does not do those things, he ends up getting angry at
25 himself, his wife, and anyone around him. (Id.)
26 Plaintiff testified that he cannot concentrate. (AR 47.) He cannot concentrate
27 even when he watches television, and after a while he will forget what he was
28 watching. (Id.) When he watches a movie, by the middle of the movie he no longer
1 remembers the beginning. (Id.) If his wife asks him to do something at their house,
2 Plaintiff will usually forget unless his wife reminds him. (Id.) He states that he lacks
3 motivation and gets “panicky.” (Id.) He feels that he cannot do simple tasks
4 anymore. (Id.) He reports being unable to keep track of bill due dates and he cannot
5 keep track of his bank account. (AR 50.) Plaintiff does not know how much money
6 is in the account. (Id.) Plaintiff states that if it was not for his wife, he would not be
7 here. (AR 51.)
8 Plaintiff explained that if someone is aggressive or gives him instructions, he
9 will usually get mad. (AR 47-48.) He thinks that he would have trouble at work
10 because instead of following the instruction he would get mad, his blood pressure
11 would rise, he would feel like he was having a panic attack, he would get sweaty, and
12 might shake. (AR 48.)
13 2. Plaintiff’s May 7, 2018 Testimony
14 After the case was remanded, Plaintiff testified at a hearing in front of a another
15 ALJ. (AR 375-400.) At the hearing, Plaintiff discussed his mental health. (See id.)
16 Plaintiff again testified that he last worked in 2002 and owned an antique shop in
17 2008, which was run by his wife. (AR 382.) Plaintiff explained that he was mostly
18 at home due to his condition. (Id.) Plaintiff reported what the ALJ described as a
19 “fearful anxiety.” (Id.) The fearfulness kept him in the house. (Id.)
20 Plaintiff reported that he drove to the hearing. (AR 382.) He was accompanied
21 by his wife, but she did not drive because she does not drive on the freeway. (AR
22 383.)
23 Plaintiff explained that he stopped working because he felt fearful and his
24 mood would go up and down. (Id.) He could not function and had mood swings.
25 (AR 384.) He reports being unable to concentrate. (Id.) Plaintiff stated that
26 everything became “harder and harder” for him to do. (Id.) He also notes that he
27 could not remember. (Id.) Plaintiff has not applied for work. (Id.)
28 ///
1 Plaintiff reports that he started seeing a psychiatrist after the last hearing. (AR
2 384-85.) He also notes that he was seeing a psychiatrist or psychologist when he
3 stopped working. (AR 385.) He denies having problems with drugs or alcohol. (Id.)
4 Plaintiff testified that he did not know what was making him nervous when he
5 stopped working. (AR 386.) However, he did explain that he could not take the
6 pressure of dealing with people and that he was not like himself. (Id.) Plaintiff denies
7 any significant physical ailments, noting that while his back would hurt, he would
8 simply take aspirin. (Id.)
9 Plaintiff testified that he was unable to recover some medical records because
10 they are “so far back.” (AR 387.) He reports having gone to acupuncturists for his
11 anxiety. (Id.) He stated that it did help him calm down and that he still gets
12 acupuncture. (Id.) When Plaintiff stopped working, he was not seeing a psychiatrist
13 or psychologist but did visit a doctor who prescribed medicine for his nerves. (Id.)
14 He reports feeling worse now than when he stopped working. (AR 388.)
15 Plaintiff does not go out of the house often. (Id.) He stopped going out of the house
16 on and off since 2002, but completely stopped leaving the house in 2009. (Id.)
17 Plaintiff does not believe that in 2009 he could have taken a job that did not
18 require dealing with people because he does not believe that he could have done
19 anything. (AR 388.) He testified that it was not only having to deal with people or
20 the inability to concentrate that gave him cold sweats. (AR 388-89.) He does not
21 know what set him off and found it difficult to describe. (AR 389.) Plaintiff states
22 that he thought a psychiatrist was helping him. (Id.)
23 When Plaintiff is at home, he explains that he is not active, instead he listens
24 to music. (AR 389.) He notes that he gets irritated and frustrated by everything,
25 including the news. (AR 389-90.) He explains that since 2002 he gets frustrated
26 easily. (AR 390.) He believes that he it all started going downhill in 2002. (Id.)
27 Plaintiff states that the doctors just “throw pills at him.” (Id.) Plaintiff also reports
28 that his problem with insomnia started in 2002 or 2003, and it has gradually gotten
1 worse. (Id.) He takes pills to sleep but still does not sleep well. (Id.) His mind never
2 stops working and he is constantly thinking about something. (Id.) Plaintiff testified
3 that he first sought help in 2002 or 2003 and saw a psychiatrist. (AR 392.)
4 Plaintiff reported that with all the medication he is taking he does not know
5 how to function. (AR 392.) He does not believe that the medication is helping him.
6 (AR 393.) He still suffers from anxiety and insomnia. (AR 393-94.) He does not go
7 out without his wife or brother-in-law. (AR 394.) His brother-in-law drives him
8 most of the time. (Id.)
9 As far as his mood swings, Plaintiff explained that his “ups” consisted of him
10 being happy, the feeling of being up in the morning and working and feeling good
11 about himself. (AR 394.) He described “downs” as not being able to do anything,
12 being depressed, unable to concentrate, and getting cold sweats. (Id.) Plaintiff
13 testified that he had more downs than ups. (AR 394-95.) Plaintiff then testified as
14 to his physical ailments. (AR 395-98.)
15 3. Plaintiff’s September 4, 2018 Testimony
16 At a supplemental hearing, Plaintiff testified that he was receiving treatment
17 between 2004 and 2005. (AR 411.) However, Plaintiff was unable to obtain those
18 records. (AR 412.) Plaintiff is under the impression that one of the doctors died and
19 he was unable to find any records. (Id.) Plaintiff explained that at the time he was
20 having “terrible emotional problems.” (Id.) This in part was due to finding out that
21 his business partner had embezzled money from him. (Id.) When he found out,
22 Plaintiff reports that he “went off the rails,” “blew up,” and “tore up the place.” (Id.)
23 Plaintiff also testified that during that time he could not sleep or eat and just felt
24 terrible. (AR 413.) He also reports being unable to work. (Id.) Plaintiff admits that
25 his mood swings began before the problems with his business partner. (AR 418.)
26 However, he does note that his mood swings worsened after his partner “betrayed
27 him.” (Id.)
28 ///
1 In 2008, there was an indication that Plaintiff suffered from bipolar disorder.
2 (AR 413.) Plaintiff explained that he had a difficult childhood that included needing
3 a speech therapist, a father that was dependent on alcohol and committed domestic
4 abuse. (Id.) He describes 2002 as terrible and notes that he felt hopeless. (AR 414.)
5 He has felt hopeless since then. (Id.)
6 Plaintiff again discussed the antique store he purchased. (AR 414.) For three
7 months Plaintiff ran the store, including doing the book work, but then his wife had
8 to run it herself. (AR 414-15.) The store eventually went bankrupt. (AR 415.) While
9 the idea to open the business was not “off the cuff,” Plaintiff explains that if he had
10 looked into it more, he would not have done it. (Id.) While he was running the store,
11 he was having problems talking to people. (Id.) He was suffering from extreme
12 anxiety and it got worse. (AR 415-16.) He would dread going to work and a lot of
13 days he would not go to work. (AR 416.)
14 Plaintiff would feel depressed and anxious around people. (AR 417.) Plaintiff
15 cannot describe what stopped him from getting out of bed in the mornings. (Id.) He
16 reports that the psychiatrists just throw pills at him and tell him to feel better, but he
17 does not. (AR 417.) Plaintiff believes that he has been fighting depression since
18 elementary school. (Id.) He describes himself as reserved and notes that he was
19 never the person that was outgoing. (Id.) He started working when he was 16 and
20 was proud of himself for being a good worker. (Id.) Plaintiff notes that he feels the
21 opposite now. (Id.)
22 4. Monica Tate’s June 16, 2014 Testimony
23 Monica Tate (“Mrs. Tate”) testified she has been married to Plaintiff for 25
24 years. (AR 52.) During that time Plaintiff and Mrs. Tate have always lived together.
25 (Id.) Except for the time that Mrs. Tate is at work, she is with Plaintiff most of the
26 day. (Id.) Mrs. Tate begins work at 9:00 a.m. and returns home at 5:30 p.m. or 6:00
27 p.m. (Id.) While she is at work, Plaintiff calls Mrs. Tate about four times a day. (Id.)
28 Usually, Plaintiff asks Mrs. Tate what she is doing and what time is she going to
1 return home. (Id.) Plaintiff will also text Mrs. Tate. (AR 52-53.) If Mrs. Tate does
2 not answer the phone or does not respond to Plaintiff’s texts, he gets angry and yells
3 at her. (AR 54-55.) Mrs. Tate testified that if she does not answer the phone Plaintiff
4 does not feel good and is anxious. (AR 55.) She reported that sometimes she does
5 not want to go home. (Id.) She notes that things have “gotten really bad” and that it
6 is a bad situation. (Id.)
7 Mrs. Tate testified that Plaintiff is a recluse but that on the occasions that he
8 does go out, she does not want to be in the car with him. (AR 55.) Mrs. Tate
9 describes that Plaintiff “gets out of control and angry as soon as somebody cuts him
10 off.” (Id.) She also noted that Plaintiff does not like anybody, everybody makes him
11 upset, and he hates everything. (Id.) She notes that Plaintiff does not like his family
12 anymore and will fight with family. (Id.) She will usually go by herself to family
13 reunions while Plaintiff stays home. (Id.)
14 Mrs. Tate reported that there are simple things that she wishes Plaintiff would
15 help her with. (AR 56.) When Mrs. Tate forgets to give her dog water, Plaintiff does
16 not do it for her. (Id.) If Mrs. Tate asks Plaintiff to do something like take out the
17 frozen chicken, Plaintiff does not do it. (Id.) Mrs. Tate wishes Plaintiff would look
18 for a job and be like he used to be. (Id.)
19 Mrs. Tate explained that Plaintiff has been trying to buy businesses for years
20 and that they have lost a lot of money as a result. (AR 56.) She noted the purchase
21 of a print shop in Seattle that resulted in her having to run the store. (Id.) She states
22 that even though she could not do it by herself and someone was taking money from
23 her, Plaintiff bought the antique store. (Id.) The money that Plaintiff and Mrs. Tate
24 had went towards buying the antique store. (Id.) They thought Plaintiff would “be
25 able to do it,” but soon after Plaintiff left her alone to run the store. (Id.) Plaintiff
26 would not help Mrs. Tate. (AR 56-57.) The landlord took over the store because she
27 was unable to pay the rent. (AR 57.) She testified that Plaintiff has had a pattern of
28 losing businesses. (AR 57.) With the previous business, Plaintiff’s business partner
1 could not take Plaintiff’s anger anymore. (Id.) Plaintiff would lose his temper and
2 throw the phone and other items. (Id.)
3 Mrs. Tate does not believe that Plaintiff can get up to work or clean himself up
4 to look decent enough for someone to hire him. (AR 57-58.) Plaintiff is sitting on
5 the couch when she leaves for work and in bed when Mrs. Tate arrives from work.
6 (AR 57.) She does not believe Plaintiff could complete “minimal tasks.” (AR 58.)
7 Lastly, Mrs. Tate testified that Plaintiff once visited the emergency room after
8 he got angry and slammed his hand on the door. (AR 58.) Plaintiff almost broke his
9 fingers. (Id.) He has not sought emergency mental health treatment. (Id.) Plaintiff
10 has hit the wall and thrown a phone at Mrs. Tate. (AR 59.) Mrs. Tate testified that
11 Plaintiff has been working since he was 16. (Id.) Once they got married, Mrs. Tate
12 became aware of Plaintiff’s anger issues. (Id.)
13 5. Plaintiff’s Function Report
14 The administrative record also contains an undated function report completed
15 by Plaintiff. (AR 233-240.) In the report, Plaintiff states that he lives in a house with
16 family. (AR 233.) Regarding his illnesses, Plaintiff states that most days he is unable
17 to leave the house. (Id.) He describes feeling afraid. (Id.) Plaintiff is unable to sleep
18 and cannot stop thinking. (Id.) He feels very depressed and cannot do anything. (Id.)
19 His heart races and he is unable to catch his breathe. (Id.) He suffers from mood
20 swings and goes from being mad to being very happy. (Id.) The medication he takes
21 makes his mind unclear. (Id.)
22 Plaintiff spends his days trying to watch television or listening to the radio.
23 (AR 234.) He does not have any interests and spends most of his day in the house.
24 (Id.) He falls asleep during the day. (Id.) Plaintiff’s wife cooks for him and takes
25 care of their dog. (Id.) Plaintiff does not take care of anyone or any pets. (Id.)
26 Before his illnesses, Plaintiff “lived a happy, normal life, worked, and had hobbies,”
27 but now he does not. (Id.)
28 ///
1 As far as his personal care, Plaintiff’s wife washes his clothes and lays out his
2 clothing. (AR 234.) Plaintiff shaves once a week. (Id.) He bathes when his wife is
3 home. (Id.) Plaintiff reports that he can groom his hair, feed himself, and use the
4 toilet. (Id.) He does need his wife to remind him to take care of his personal needs
5 and help him when he needs help. (AR 235.) Plaintiff also needs his wife to remind
6 him to take his medicine. (Id.)
7 Plaintiff does not prepare his own meals. (AR 235.) Prior to his illness, he
8 used to be able to cook. (Id.) Now, he is “not trusted” to prepare meals. (Id.)
9 Plaintiff does not help with household chores because he feels unstable and unsafe.
10 (AR 235-36.) He goes outside once or twice a week. (AR 236.) He notes that he is
11 afraid to go outside. (Id.) When he does go out, Plaintiff walks or rides in a car.
12 (Id.) He does not go out alone or drive because he is afraid. (Id.) Plaintiff does not
13 go shopping. (Id.) Plaintiff is unable to pay bills, count change, handle a bank
14 account, and handle a checkbook. (Id.) Plaintiff’s wife handles their finances. (Id.)
15 Before his illness, Plaintiff was able to handle money and was “normal.” (AR 237.)
16 Plaintiff lists his only hobby as watching television. (AR 237.) However, he
17 is unable to watch television for a long time because his mind begins to wander. (Id.)
18 He explains that before his illness he “did all things.” (Id.) Plaintiff talks with his
19 wife every day and with his sister twice a month. (Id.) Plaintiff needs to be reminded
20 to go to the doctor and to go shopping with his wife. (Id,) He needs someone to go
21 with him because he does not trust himself. (Id.) He has difficulty getting along with
22 family due to his mood swings. (AR 238.) He notes that after his illness everything
23 went from great to bad. (Id.)
24 Plaintiff’s illness affects his ability to lift, squat, bend, stand, walk, kneel, see,
25 climb stairs, remember, complete tasks, concentrate, understand, follow instructions,
26 and get along with others. (AR 238.) He can pay attention for 20 minutes. (Id.) He
27 does not finish what he starts. (Id.) He cannot follow written instructions but is able
28 to follow spoken instructions. (Id.) When dealing with authority figures, Plaintiff
1 usually gets mad. (AR 239.) He has never been fired due to problems getting along
2 with people. (Id.) He cannot handle stress. (Id.) He does not handle changes to
3 routine very well. (Id.) He has a fear of getting out of the house, gets mad and
4 depressed. (Id.) Plaintiff wears reading glasses. (Id.) Plaintiff takes medication but
5 the medication causes dizziness, heat palpitations, anger, fear, and issues with sleep.
6 (AR 240.)
7 Plaintiff concludes by explaining that prior to his illness he was a well-rounded
8 person with friends. (AR 240.) He began working at 16 years-old and was a hard
9 worker. (Id,) He has been married for 24 years and notes that if it was not for his
10 wife, he would be not be alive. (Id.)
11 6. Third-Party Function Report
12 On September 30, 2012, Mrs. Tate, Plaintiff’s wife, prepared a function report
13 describing Plaintiff’s illnesses and conditions. (AR 224-232.) Mrs. Tate has known
14 Plaintiff for the past 24 years. (AR 224.) Plaintiff lives in a house with family. (Id.)
15 Mrs. Tate explains that due to his condition, Plaintiff’s ability to work is
16 limited because he is unable to sleep, and because he takes strong medicine and has
17 mood swings. (Id.) She notes that Plaintiff has been tremendously affected. (Id.)
18 She describes Plaintiff as being unable to get out of bed most days, but when he does
19 get up, he lays on a couch. (AR 225.) Plaintiff does not help with anything around
20 the house. (Id.) He rarely goes out of the house. (Id.) Plaintiff grinds his teeth and
21 has to wear a mouth guard. (Id.) Plaintiff is not responsible for taking care of anyone
22 or taking care of pets. (Id.) Mrs. Tate is responsible for everything in the house,
23 including taking care of their dog. (Id.) She notes that before Plaintiff’s illness,
24 Plaintiff used to do “pretty much anything.” (Id.) Now, Plaintiff sleeps for a couple
25 of hours and then goes to sit on the couch. (Id.)
26 As far as his personal care, Mrs. Tate lays out Plaintiff’s clothes, cooks for
27 Plaintiff, and she forces him to trim his beard. (AR 225.) Plaintiff bathes when Mrs.
28 Tate is home. (Id.) He can care for his hair and use the toilet by himself. (Id.) He
1 needs to be reminded to change his clothes more often, trim his beard, and to take
2 his medicine. (AR 226.) Mrs. Tate notes that Plaintiff does not cook and does not
3 do any household chores. (Id.) Plaintiff does not show any interest in doing
4 housework, is depressed, and cannot do it. (AR 227.)
5 Mrs. Tate reports that Plaintiff goes out once a week. (AR 227.) Plaintiff tells
6 Mrs. Tate that he is afraid to go out and he feels sleepy. (Id.) When he does go out,
7 he walks or rides in a car. (Id.) He does not go out alone because he feels he may
8 have a panic attack and does not feel comfortable. (Id.) Plaintiff does not drive
9 because he is on too much medicine and does not get enough sleep. (Id.) He does
10 not do any shopping. (Id.) Mrs. Tate explains that Plaintiff used to be able to handle
11 money but since his illness he is not able to pay bills, count change, handle a savings
12 account, or use a checkbook because he makes too many mistakes. (AR 227-28.)
13 Mrs. Tate notes that Plaintiff’s only hobby or interest is watching television “for a
14 while.” (AR 228.) However, he is unable to concentrate on the program that he
15 watches. (Id.) She reports that prior to his condition, Plaintiff was normal. (Id.)
16 As far as social activities, Mrs. Tate reports that Plaintiff talks on the phone
17 with people but that he does not do this often. (AR 228.) He needs to be reminded
18 to go to the doctor and to go grocery shopping with Mrs. Tate. (Id.) Plaintiff has
19 difficulty getting along with family and friends because he does not feel like dealing
20 with people for the most part. (AR 229.) Since his condition, Mrs. Tate states that
21 she noticed big changes, in that, Plaintiff does not want to meet anybody and prefers
22 to stay “in his cubicle” at home. (Id.)
23 Mrs. Tate explains that Plaintiff’s illness affects his ability to lift, squat, bend,
24 stand, walk, kneel, see, climb stairs, remember, complete tasks, concentrate,
25 understand, follow instructions, and get along with others. (AR 229.) For physical
26 limitations she notes that the problem is “bad knees” and problems with his feet are
27 due to “extreme pain,” while the remaining issues are “mental.” (Id.) She notes that
28 due to pain, Plaintiff is unable to walk far and will rest before continuing, depending
1 on how bad the pain is. (Id.) She thinks Plaintiff can pay attention for 10 minutes
2 and he does not finish what he starts. (Id.) Plaintiff does not follow written
3 instructions well and is “pretty good” with spoken instructions but does forget. (Id.)
4 Plaintiff gets upset with authority figures but has never been laid off for not
5 being able to get along with people. (AR 230.) He does not handle stress well, and
6 instead gets restless and mad. (Id.) Plaintiff is afraid of leaving the house, afraid of
7 meeting people, and does not want to do anything. (Id.) He uses glasses and a
8 mouthguard. (Id.) Mrs. Tate notes that all of Plaintiff’s medicine has side effects.
9 (AR 231.) She explains that Plaintiff has changed a lot since he got sick. (Id.) As a
10 result, she feels a lot of pressure and feels sad and helpless. (Id.)
11 7. Applicable Legal Standards
12 “In assessing the credibility of a claimant’s testimony regarding subjective
13 pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina
14 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d
15 586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has
16 presented objective medical evidence of an underlying impairment which could
17 reasonably be expected to produce the pain or other symptoms alleged.” Treichler v.
18 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting
19 Lingenfelter, 504 F.3d at 1036) (internal quotation marks omitted). If so, and if the
20 ALJ does not find evidence of malingering, the ALJ must provide specific, clear and
21 convincing reasons for rejecting a claimant’s testimony regarding the severity of his
22 symptoms. Id. The ALJ must identify what testimony was found not credible and
23 explain what evidence undermines that testimony. Holohan v. Massanari, 246 F.3d
24 1195, 1208 (9th Cir. 2001). “General findings are insufficient.” Lester, 81 F.3d at
25 834.
26 8. Discussion
27 “After careful consideration of the evidence,” the ALJ found that Plaintiff’s
28 “medically determinable impairments could reasonably be expected to cause the
1 alleged symptoms,” but found that Plaintiff’s “statements concerning the intensity,
2 persistence and limiting effects of the symptoms are not fully supported prior to
3 January 1, 2013.” (AR 354.) The ALJ found that Plaintiff’s symptoms and
4 limitations were “not entirely consistent with the objective evidence as to the period
5 prior to January 1, 2013” and that there was “no reliable medical source statement
6 from any physician endorsing the extent of [Plaintiff’s] alleged functional
7 limitations.” (See AR 22-24.) No malingering allegation was made, and therefore,
8 the ALJ’s reasons must be clear and convincing.
9 Plaintiff argues that the ALJ failed to provide clear and convincing reasons
10 supported by substantial evidence for discounting Plaintiff’s testimony. (JS 8-14, 23-
11 24.) Specifically, Plaintiff posits that the ALJ relied exclusively on the medical
12 record when assessing Plaintiff’s subjective symptom testimony and that the ALJ’s
13 reliance was reversible error. (See JS 23.) In support, Plaintiff cites to applicable
14 law which correctly states that the ALJ may not rely solely on the lack of supporting
15 objective medical evidence. (See JS 10-12, 23-24.)
16 The Commissioner argues that the ALJ properly discounted Plaintiff’s
17 subjective symptom testimony due to a lack of supporting objective medical
18 evidence, lack of a medical source statement, a showing by medical opinions that
19 Plaintiff could function at a higher level than Plaintiff reported, Plaintiff’s course of
20 treatment, and inconsistent statements “between Plaintiff’s allegations and the
21 record.” (JS 16-22.) For example, the Commissioner argues that the ALJ considered
22 Plaintiff’s course of treatment in discounting his subjective symptom testimony. (JS.
23 21-22.) While, the ALJ described Plaintiff’s mental health treatment, which included
24 visits with a psychiatrist and acupuncturists, as well as medication, the ALJ did not
25 rely on Plaintiff’s course of treatment in discounting Plaintiff’s testimony. (AR 354;
26 see AR 353-57.) Similarly, the Commissioner argues that the ALJ noted
27 inconsistencies between Plaintiff’s complaints and the record. (JS 22.) The ALJ
28 notes that Plaintiff’s claim that he is unable to work due to his hypertension is
1 inconsistent with the medical record which shows some high blood pressure but no
2 end-stage organ disease. (AR 357.) This would support the ALJ’s discounting of
3 Plaintiff’s subjective testimony due to the lack of supporting objective medical
4 evidence but does not constitute a separate and distinct reason.
5 This Court may only “review the reasons the ALJ asserts.” Connett v.
6 Barnhart¸ 340 F.3d 871, 874 (9th Cir. 2003) (citing SEC v. Chenery Corp., 332 U.S.
7 194, 196, 67 S. Ct. 1575, 91 L.Ed. 1995 (1947); Pinto v. Massanari, 249 F.3d 840,
8 847-48 (9th Cir. 2001)). The ALJ gave only two reasons for discounting Plaintiff’s
9 subjective symptom testimony – lack of supporting objective medical evidence and
10 lack of a medical source statement. (See AR 353-57.) The Commissioner’s
11 arguments that the ALJ discounted Plaintiff’s subjective symptom testimony for
12 reasons other than those laid out by the ALJ are not subject to this Court’s review.
13 The Court reviews only whether the ALJ’s specific reasons for discounting Plaintiff’s
14 subjective symptom testimony were clear and convincing.
15 Here, the ALJ discredits Plaintiff’s subjective symptom allegations because
16 (1) “the symptoms and limitations are not entirely consistent to the objective evidence
17 as to the period prior to January 1, 2013,” and (2) “there is no reliable medical source
18 statement from any physician endorsing the extent of the claimant’s alleges
19 functional limitations.” (AR 354-55.) Upon review, the Court finds that the
20 reasoning provided by the ALJ for discounting Plaintiff’s testimony in fact consists
21 of only one reason – the lack of supporting objective medical evidence. What the
22 ALJ describes as a “reliable medical source statement” is simply a medical opinion.
23 See 20 C.F.R. § 404.1527(a)(1) (defining “medical opinion” as “statements from
24 acceptable medical sources that reflect judgments about the nature and severity of
25 [claimant’s] impairment(s), including [his] symptoms, diagnosis and prognosis, what
26 [he] can still do despite impairment(s), and [his] physical or mental restrictions”).
27 Because “[m]edical opinion evidence is merely an example of objective medical
28 evidence,” the lack of a reliable medical source statement cannot form a “specific
1 and distinct reason for rejecting Plaintiff’s subjective symptom testimony.” Williams
2 v. Berryhill¸ No. CV 17-03624-JDE, 2018 WL 791144, at *4 (C.D. Cal. Feb. 8, 2018)
3 (citing Vigil v. Comm’r of Soc. Sec., No. 1:16-cv-01677-SAB, 2017 WL 4075581, at
4 *8 (E.D. Cal. Sept. 14, 2017); Petit v. Astrue, No. EDCV 11-02001-JEM, 2012 WL
5 3965146, at *7 (C.D. Cal. Sept. 11, 2012)). Furthermore, this District has routinely
6 found, and discussed, the absence or presence of medical source statements as a part
7 of the objective medical evidence. See Garcia v. Berryhill, No. EDCV 17-01396-
8 JEM, 2018 WL 5884540, at *4 (C.D. Cal. Nov. 6, 2018) (discussing lack of a medical
9 source statement as part of objective medical evidence); Lucas v. Berryhill, No. 5:16-
10 cv-02464–SHK, 2018 WL 2448472, at *10 (C.D. Cal. May 29, 2018) (weighing
11 medical source statement as part of discussion of objective medical evidence); King
12 v. Colvin, No. ED CV 14–533–AS, 2014 WL 5810366, at *7-8 (discussing the
13 absence of a medical source statement as supporting a finding that claimant’s
14 statements were unsupported by objective medical evidence). Thus, the Court finds
15 that the ALJ discounted Plaintiff’s subjective testimony on the sole basis of lack of
16 supporting objective medical evidence.
17 While the lack of supporting objective medical evidence is a factor that the
18 ALJ can use in assessing Plaintiff’s subjective symptom testimony, it cannot form
19 the sole basis for discounting testimony. Burch, 400 F.3d at 681; Rollins v.
20 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2)).
21 Here, the ALJ provided no other reasoning for discounting Plaintiff’s subjective
22 symptom testimony. Thus, the ALJ improperly discounted Plaintiff’s subjective
23 symptom testimony.
24 9. Conclusion
25 In sum, the ALJ did not give clear and convincing reasons, supported by
26 substantial evidence, for discounting Plaintiff’s subjective symptom testimony.
27 Accordingly, remand is warranted on this issue.
28 ///
1 B. Remand for Further Administrative Proceedings
2 Because further administrative review could remedy the ALJ’s errors, remand
3 for further administrative proceedings, rather than an award of benefits, is warranted
4 here. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (remanding for
5 an award of benefits is appropriate in rare circumstances). Before ordering remand
6 for an award of benefits, three requirements must be met: (1) the Court must conclude
7 that the ALJ failed to provide legally sufficient reasons for rejecting evidence; (2) the
8 Court must conclude that the record has been fully developed and further
9 administrative proceedings would serve no useful purpose; and (3) the Court must
10 conclude that if the improperly discredited evidence were credited as true, the ALJ
11 would be required to find the claimant disabled on remand. Id. (citations omitted).
12 Even if all three requirements are met, the Court retains flexibility to remand for
13 further proceedings “when the record as a whole creates serious doubt as to whether
14 the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id.
15 (citation omitted).
16 Plaintiff argues that the ALJ’s failure, for the second time, to properly assess
17 Plaintiff’s subjective symptom testimony warrants an order crediting Plaintiff’s
18 testimony as true and ordering the payment of benefits. (JS 13, 24-25.) Plaintiff
19 notes that his claims have been pending for over seven years. (JS 13.) The
20 Commissioner argues that the credit-as-true rule is inapplicable here and that remand
21 would be appropriate because the record contains inconsistencies that require a
22 judicial determination by the ALJ. (JS 27.)
23 Under the credit-as-true rule, when the ALJ fails to articulate sufficient reasons
24 for refusing to credit Plaintiff’s subjective symptom testimony, the Commissioner
25 must accept the testimony as true if there are no outstanding issues to be resolved.
26 Varney v. Sec’y of Health and Human Servs., 859 F.2d 1396, 1398-1401 (9th Cir.
27 1988.) However, the Ninth Circuit has expanded the circumstances under which the
28 credit-as-true rule can be applied to include situations in which there may be
1 outstanding issues to be resolved. See Vasquez v. Astrue, 572 F.3d 586, 593-94 (9th
2 Cir. 2009) The “purpose of the credit-as-true rule is meant to discourage the ALJs
3 from reaching a conclusion about a claimant’s status first, and then attempting to
4 justify it by ignoring any evidence in the record that suggests an opposite result.” Id.
5 at 594 (citing Hammock v. Bowen, 879 F.2d 498, 503 (9th Cir. 1989).)
6 In Vasquez, the Ninth Circuit found that based on the claimant’s age and the
7 severe delay in obtaining a resolution it was appropriate to apply the credit-as-true
8 rule. Id. at 593-94. There the claimant was 58 years old and her claim had been
9 pending for approximately 7 years. Id.; see also Hammock, 879 F.2d at 500, 503
10 (finding that due to claimant’s age, 57 years old at the time of hearing, and the fact
11 that her claim had been pending at least 8 years the ALJ must credit her testimony as
12 true on remand); Sanchez v. Berryhill, No. EDCV 16-1774-FMO-MRW, 2018 WL
13 4694349, at *9 (C.D. Cal. July 19, 2018) (ordering the ALJ to credit as true where
14 claimant was 52 years old and his claim was pending for 6 years). Here, remand for
15 further administrative proceedings is appropriate and consistent with Vasquez and
16 Hammock. Plaintiff is 61 years old and he filed his initial application in June 2012,
17 more than seven years ago. (See AR 69-70, 80-81.)
18 The Court finds that the ALJ failed to provide clear and convincing reasons
19 supported by substantial evidence to discount Plaintiff’s subjective testimony. On
20 remand, the ALJ shall “credit-as-true” Plaintiff’s subjective allegations. The ALJ
21 shall then reassess Plaintiff’s RFC and proceed through step four and step five, if
22 necessary, to determine what work, if any, Plaintiff was capable of performing during
23 the relevant time period.
24 ///
25 ///
26 ///
27 ///
28 ///
1|V¥. CONCLUSION
2 IT IS ORDERED that Judgment shall be entered REVERSING the decision of
3 || the Commissioner denying benefits and REMANDING the matter for further
4 || proceedings consistent with this Order.
5 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this
6 || Order and the Judgment on counsel for both parties.
7 Rapelis a. QC
g || DATED: November 25, 2019
9 ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE
10
i NOTICE
12 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,
13 || LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10036234. Public record. Not legal advice.